Learning Forensic Assessment (International Perspectives on Forensic Mental Health)

LEARNING FORENSIC ASSESMENT

International Perspectives on Forensic Mental Health

A Routledge Book Series

Edited by Ronald Roesch and Stephen Hart, Simon Fraser University

The goal of this series is to improve the quality of health care services in forensic settings by providing a forum for discussing issues related to policy, administration, clinical practice, and research. The series will cover topics such as mental health law; the organization and administration of forensic services for people with mental disorder; the development, implementation and evaluation of treatment programs for mental disorder in civil and criminal justice settings; the assessment and management of violence risk, including risk for sexual violence and family violence; and staff selection, training, and development in forensic systems. The book series will consider proposals for both monographs and edited works on these and similar topics, with special consideration given to proposals that promote best practice and are relevant to international audiences. Forthcoming Handbook of Violence Risk Assessment, edited by Randy K. Otto, Florida Mental Health Institute, and Kevin Douglas, Simon Fraser University.

LEARNING FORENSIC ASSESMENT

EDITED BY

REBECCA JACKSON

New York London

Routledge Taylor & Francis Group 270 Madison Avenue New York, NY 10016

Routledge Taylor & Francis Group 2 Park Square Milton Park, Abingdon Oxon OX14 4RN

© 2008 by Taylor & Francis Group, LLC Routledge is an imprint of Taylor & Francis Group, an Informa business Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 International Standard Book Number-13: 978-0-8058-5923-2 (Softcover) 978-0-8058-5922-5 (Hardcover) No part of this book may be reprinted, reproduced, transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying, microfilming, and recording, or in any information storage or retrieval system, without written permission from the publishers. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Learning forensic assessment / by Rebecca L. Jackson [editor]. p. ; cm. -- (International perspectives on forensic mental health) Includes bibliographical references. ISBN-13: 978-0-8058-5922-5 (cloth : alk. paper) ISBN-10: 0-8058-5922-5 (cloth : alk. paper) ISBN-13: 978-0-8058-5923-2 (pbk. : alk. paper) ISBN-10: 0-8058-5923-3 (pbk. : alk. paper) 1. Forensic psychiatry. 2. Forensic psychology. 3. Personality assessment. I. Jackson, Rebecca L. II. Series. [DNLM: 1. Forensic Psychiatry--methods. 2. Personality Assessment. W 740 L438 2008] RA1151.L43 2008 614’.15--dc22 Visit the Taylor & Francis Web site at http://www.taylorandfrancis.com and the Routledge Web site at http://www.routledge.com

2007004888

Contents

Preface

vii

Contributors

xi

PART I Professional and Practice Issues 1

Training in Forensic Assessment and Intervention: Implications for Principles-Based Models Geoffrey Marczyk, David DeMatteo, Josh Kutinsky, and Kirk Heilbrun

3

2

Accessing and Understanding Legal Literature Aaron Miller, Heidi Schrumpf, and Sarah Davis

33

3

Ethical Issues in Forensic Psychology Mary A. Connell

55

PART II Adult Forensic Assessment 4

Evaluations of Adult Adjudicative Competency Stephen L. Golding

5

Insanity Evaluations Richard Rogers

109

6

The Clinical Assessment of Psychopathy Michael J. Vitacco and Craig S. Neumann

129

7

Violence Risk Assessment Rebecca L. Jackson and Michelle R. Guyton

153

8

Evaluations for the Civil Commitment of Sexual Offenders Rebecca L. Jackson and Henry J. Richards

183

9

Forensic Psychology Evaluations at Capital Sentencing Mark D. Cunningham

211

Competency for Execution Patricia A. Zapf

239

10

75

v

vi

Contents

PART III Juvenile Forensic Assessment 11

The Capacity of Juveniles to Understand and Waive Arrest Rights Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

265

12

Assessing Adolescents’ Adjudicative Competence Jodi L. Viljoen and Ronald Roesch

291

13

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court Randall T. Salekin and Ross D. Grimes

313

14

Assessing Child and Adolescent Psychopathy Randall T. Salekin and Sara A. Debus

347

15

Assessing Risk for Violence in Adolescents Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

385

PART IV Civil Forensic Assessment 16

Child Custody Evaluations Elizabeth Ellis

417

17

Evaluations of Individuals for Disability in Insurance and Social Security Contexts William E. Foote

449

18

Personal Injury Evaluations David D. Fox

481

19

Civil Commitment Evaluations Eric Strachan

509

PART V Communicating Your Findings 20

Writing Forensic Psychological Reports Gregg J. Gagliardi and Audrey K. Miller

539

21 Testifying in Court: Evidenced-Based Recommendations for Expert-Witness Testimony Phylissa P. Kwartner and Marcus T. Boccaccini

565

Index

589

Preface

Legal psychology as a discipline has enjoyed tremendous growth in recent years. More professionals are entering this field, accompanied by an increased demand for quality training. One subdiscipline under the larger umbrella of psychology and law is clinical forensic psychology. Clinical forensic psychologists focus their work on individuals in the legal system, as opposed to processes of the legal system itself or even the relationship between psychology and law that might be the focus of other legal psychologists. A greater number of programs are including forensic psychology classes in their curriculum or devoting focused “tracks” for students wishing to emphasize forensic training within their more general training. An important professional activity of clinical forensic psychologists is forensic assessment. Despite the number of forensic psychology references currently available, a clear need existed for a comprehensive, yet user-friendly textbook dedicated to forensic assessment. Existing titles tend to be either broad-based introductions to the field or in-depth treatments of specialized topics. As a result, they are less suitable for initial teaching of graduate level students or professionals coming to forensic evaluation later in their careers. This volume was created to fill in the gap that existed, and provides both a foundation for teaching and learning about empirically-based forensic assessment as well as a wealth of practical, “how-to” information. We aim to provide comprehensive coverage of forensic assessment in the United States, although some topics may have international relevance. Psychology graduate students seeking training in forensic assessment will find this book a helpful overview of commonly encountered topics and a valuable resource for assessment tips and procedures. Other professionals, coming to forensic psychology later in their careers, will also find this book a valuable tool in learning more about forensic assessment. Another distinguishing feature is the way in which the book is organized so that its chapters can immediately be put to use in the real world. For example, adult forensic issues are grouped together, although one issue (sex offender civil commitment evaluations) is a civil issue, and several topics overlap with juvenile issues (psychopathy, risk assessment). Furthermore, many texts treat the issue of malingering, or altered response styles, as a separate topic. Dissimulation is rarely raised as a referral question; rather, it arises within the context of the larger evaluation. Therefore, we included information pertaining to assessing response styles within relevant chapters. In the main, practitioners tend to gravitate toward specialization in adults or juveniles or civil forensic assessments. The book, therefore, is organized around five broad topic areas: professional and practice issues, adult forensic assessment, juvenile forensic assessment, civil forensic assessment, and communicating your findings. vii

viii

Preface

Part I is devoted to professional and practice issues. Geoffrey Marczyk and colleagues provide an excellent introduction to the field of forensic psychology as well as a brief history of the field and current training trends. The Accessing and Understanding Legal Literature chapter by Aaron Miller and colleagues provides a foundation for understanding the epistemological differences between the law and psychology, and provides guidance for bridging the disciplines through research and advocacy. The final chapter in Part One is Ethical Issues in Forensic Psychology. Mary Connell outlines the common ethical issues encountered in forensic evaluations and advances an eight-step model for ethical decision-making. Each assessment topic (i.e., those topics covered in parts II–IV) has a chapter devoted to it. Part II is titled Adult Forensic Assessment and includes the chapters Competency to Stand Trial (Stephen Golding), Criminal Responsibility (Richard Rogers), Psychopathy (Michael Vitacco and Craig Neumann), Violence Risk Assessment (Rebecca Jackson and Michelle Guyton), Sex Offender Civil Commitment (Rebecca Jackson and Henry Richards), Capital Sentencing (Mark Cunningham), and Competency to be Executed (Patricia Zapf). Part III consists of issues relevant to the juvenile forensic population, with the chapters Waiving Arrest Rights (Ronald Roesch and colleagues), Adjudicative Competence (Jodi Viljoen and Ronald Roesch), Transfer to Adult Court (Randall Salekin and Ross Grimes), Psychopathy (Randall Salekin and Sara Debus), and Violence Risk Assessment (Jodi Viljoen and colleagues). Part IV encompasses civil forensic questions in the chapters Child Custody (Elizabeth Ellis), Disability (William Foote), Personal Injury (David Fox), and Involuntary Civil Commitment (Eric Strachan). The chapters are explicitly designed to provide an overview of the topic, relevant case law, theory, and history of the construct in the legal system. In other words, each chapter begins with a strong teaching and learning foundation. The latter part of each chapter is assessment specific, covering available assessment measures, approaches to assessment, interviewing considerations, and evaluation of response styles. The authors go well beyond simple descriptions of assessment measures to present a conceptual discussion of the evaluation process that helps the reader understand how assessment measures fit into the overall evaluation process. The evaluation component is geared toward assessing the important aspects of the construct as laid out in the early part of each chapter. Each chapter then concludes with a case example to illustrate the measures and techniques described. Part V is labeled Communicating Your Findings and consists of Writing Forensic Psychological Reports (Gregg Gagliardi and Audrey Miller) and Testifying in Court (Phylissa Kwartner and Marc Boccaccini). These two chapters provide excellent instruction in empirically based approaches to communicating your findings either in testimony form or in the forensic report. In creating this volume, one of my goals was to introduce readers to many of the experts in this field. As instructors, each has his or her own style and each was free to adopt that personal style in informing the reader about his or her subject matter. My aim was to create a forensic assessment course in print form, in which each lecture was delivered by a different expert. At the same time, I also wanted the “lectures” to adopt a common structure to facilitate its usefulness as a learning tool. The authors in this volume have truly delivered. We hope you find these chapters informative, easy to read, and a valued resource for your training and practice.

Preface

ix

As editor, I feel privileged to have worked with these experts and am grateful to each of them for lending his or her expertise, time, and talent to this project. I am especially indebted to Richard Rogers, Henry Richards, Jodi Viljoen, and Geff Marczyk who each helped to shape the final product in their different ways, even though they may be unaware of it. I am also grateful to my graduate students at the Pacific Graduate School of Psychology who read drafts of chapters to provide comments and suggestions from a student’s point of view. Steve Rutter of Lawrence Erlbaum and Routledge deserves much credit for the realization of this project. He, Nicole Buchmann, Anne Horwitz, and Jay Margolis worked tirelessly to make this book a reality, obtaining early reviews, offering suggestions throughout the process, and keeping us all on track. Finally, I wish to thank Ron Roesch and Steve Hart for including this book in their series. Their confidence in and support of this project is flattering, indeed. Rebecca L. Jackson, Ph.D. Pacific Graduate School of Psychology

Contributors

Marc T. Boccaccini, Ph.D. Psychology Department Sam Houston State University Huntsville, Texas Mary A. Connell, Ed.D., ABPP Fort Worth, Texas Mark D. Cunningham, Ph.D., ABPP Lewisville, Texas Sarah Davis, M.A., J.D. Pacific Graduate School of Psychology Palo Alto, California Sara Debus, M.A. Department of Psychology University of Alabama Tuscaloosa, Alabama David DeMatteo, J.D., Ph.D. JD/PhD Program in Law & Psychology Department of Psychology Drexel University Philadelphia, Pennsylvania Natasha Elkovitich, M.A. Department of Psychology University of Nebraska – Lincoln Lincoln, Nebraska Elizabeth Ellis, Ph.D. Duluth, Georgia William E. Foote, Ph.D., ABPP Albuquerque, New Mexico David D. Fox, Ph.D. Glendale, California

Gregg J. Gagliardi, Ph.D. Department of Psychiatry and Behavioral Sciences, The Washington Institute Division of Public Behavioral Health and Justice Policy University of Washington Tacoma, Washington Stephen L. Golding, Ph.D. Department of Psychology University of Utah Salt Lake City, Utah Ross Grimes, M.A. Department of Psychology University of Alabama Tuscaloosa, Alabama Michelle R. Guyton, Ph.D. School of Professional Psychology Pacific University Hillsboro, Oregon Kirk Heilbrun, Ph.D., ABPP Department of Psychology Drexel University Philadelphia, Pennsylvania Rebecca L. Jackson, Ph.D. Forensic Psychology Program Pacific Graduate School of Psychology Palo Alto, California Joshua Kutinsky, J.D., Psy.D. Law Offices of Mark F. Seltzer, P.C. Of Counsel, Golomb & Honik, P.C. Philadelphia, Pennsylvania xi

Phylissa P. Kwartner, M.A. Psychology Department Sam Houston State University Huntsville, Texas Geoffrey Marczyk, J.D., Ph.D. Institute for Graduate Clinical Psychology Widener University Wilmington, Delaware Kaitlyn McLachlan, M.A. Simon Fraser University Burnaby, British Columbia, Canada Aaron Miller, M.A., J.D. Pacific Graduate School of Psychology Palo Alto, California Audrey K. Miller, Ph.D. Department of Psychiatry and Behavioral Sciences Division of Public Behavioral Health and Justice Policy University of Washington Tacoma, Washington Craig S. Neumann, Ph.D. Department of Psychology University of North Texas Denton, Texas Henry J. Richards, Ph.D. Special Commitment Center Steilacoom, Washington Ronald Roesch, Ph.D. Mental Health, Law, and Policy Institute Simon Fraser University Burnaby, British Columbia, Canada

Richard Rogers, Ph.D. Department of Psychology Denton, Texas Randall T. Salekin, Ph.D. Department of Psychology University of Alabama Tuscaloosa, Alabama Heidi Schrumpf, M.A., J.D. Pacific Graduate School of Psychology Palo Alto, California Eric Strachan, Ph.D. Department of Psychiatry and Behavioral Sciences University of Washington Seattle, Washington Daniel Ullman, Ph.D. Adolescent and Family Services Program Lincoln Regional Center Lincoln, Nebraska Jodi L. Viljoen, Ph.D. Simon Fraser University Burnaby, British Columbia, Canada Michael J. Vitacco, Ph.D. Mendota Mental Health Institute Madison, Wisconsin Patricia A. Zapf, Ph.D. Department of Psychology John Jay College of Criminal Justice The City University of New York New York, New York

I Professional and Practice Issues

1

1 Training in Forensic Assessment and Intervention Implications for Principles-Based Models Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

Introduction The overarching focus of this chapter is on training in forensic psychology. The chapter begins with a brief discussion of the history of forensic psychology. A discussion of this history highlights both how forensic psychology evolved as a specialty area of practice, and the role of the modern forensic psychologist. Building on this information, the chapter turns to a discussion of educational and training opportunities in forensic psychology. This portion of the chapter will focus on the current state of practice, educational and training opportunities available to students and practitioners in the field, the diversity in training models employed in these various training programs, and whether current training models adequately prepare students to become forensic practitioners. Next, the chapter narrows the discussion to training in forensic assessment and intervention. Forensic assessment and intervention are compared, and best-practice models for delivery of such services are explored. The discussion of best-practice models highlights the role of existing principles-based approaches to forensic assessment, and how such models might be constructed in the area of forensic intervention in the future. The discussion of forensic intervention models also focuses on the potential contribution of the broader evidence-based practice movement within psychology. The chapter concludes with a discussion of how principlesbased approaches could enhance the quality of forensic training and practice. The History of Forensic Psychology, the Role of the Modern Forensic Psychologist, and the Current State of Practice The field of forensic psychology emerged quite recently as a distinct subdiscipline within professional psychology. Indeed, it would probably surprise many psychologists to learn that until 2001, the American Psychological Association did not formally 3

4

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

recognize it as a discrete specialization. Arguably, though, forensic psychology can trace its historical lineage much further back in time. A number of commentators trace the origins of forensic psychology back to the behavioral and psychometric movements of the 1890s, where researchers conducted what was arguably the first informal psychological study on the reliability of courtroom eyewitness testimony (Cattell, 1895). The study indicated that eyewitnesses were often highly inaccurate and overconfident in their recollections, which prompted other practitioners in the nascent field of psychology to begin systematically examining the psychology of legal testimony. In 1908, Hugo Munsterberg published the first text dedicated to forensic psychological research in the area of eyewitness testimony and jury behavior, and from that point forward a specialized subgroup of professional psychologists began to emerge whose experimental endeavors often focused on legally related issues. Although the availability of services varied widely from location to location, psychologists began providing direct clinical services in forensic settings such as prisons and juvenile detention centers as early as the turn of the century (Otto & Heilbrun, 2002). Provision of psychological services in these settings did not start becoming commonplace until after the end of the Second World War, by which time clinical psychology had become well established as an applied profession (Otto & Heilbrun, 2002). Today, police psychology and correctional psychology are both well-developed practice areas within applied clinical psychology. There is an ongoing debate, however, over whether these practice areas fall within the professional ambit of forensic psychology. In contrast, what was arguably the first formal application of psychological assessment within a legal venue came in 1916, with the use of testing to assess the intelligence of 30 applicants for police and firefighting positions (Terman, 1917). At about this same point in time, a lab was set up within the New York City Police Department to evaluate pretrial detainees (Bartol & Bartol, 2006). From that point forward, the presence of psychologists as assessors within law enforcement and correctional contexts began to proliferate. Acceptance of psychologists and their psychometric tools in the courtroom, however, was not an easily won battle. The earliest court decisions on the subject generally rejected any role for psychologists as testifying experts, holding that only physicians were qualified to do so (Odom v. State, 1911). Although psychologists began offering testimony in courts of law early in the 20th century, it was not until 1962 that Judge Bazelon, then a circuit judge for the United States Court of Appeals for the District of Columbia, wrote in Jenkins v. United States that psychologists who were appropriately qualified could testify in court as experts in mental disorders, and that the psychological measures they employed could be used to support their opinions.1 With that, the application of psychological assessment tools within formal legal contexts began in earnest, and a market for highly specialized forensic psychological evaluations began to emerge. Today, based on practitioner estimates, it is reasonable to conclude that hundreds of thousands of forensic evaluations are conducted annually by psychologists and other mental health professionals (Otto & Heilbrun, 2002). Owing in large part to the acceptance of psychologists and their assessment measures in court, forensic psychology had by the late 1970s moved into the mainstream of professional psychological practice. The availability of psychological research and literature in all areas of forensic practice began to expand by the mid-1970s, with

Training in Forensic Assessment and Intervention

5

literally thousands of articles and numerous books being published (Bartol & Bartol, 2006). Professional journals devoted specifically to forensic practice also emerged during this period, as did the first interdisciplinary law and psychology graduate programs (Bartol & Bartol, 2006). Board certifications in forensic psychology were being offered by the late 1970s (Otto & Heilbrun, 2002). By the time the American Psychological Association officially recognized the discipline in 2001, forensic psychology had clearly cemented its position as an established, independent practice specialty within professional psychology.

Defining the Role of the Modern Forensic Psychologist Despite forensic psychology’s widespread acceptance as a freestanding practice specialty, there remains debate within the field over the scope and definition of the discipline. The American Board of Forensic Psychology (2006) defines the field broadly as the application of the science and profession of psychology to questions and issues relating to law and the legal system. As it grows and matures, however, forensic psychology’s vision of itself and its role within professional psychology continues to evolve. Currently, spirited debate continues among scholars and practitioners over what constitutes forensic practice. As a result, there is no one universally accepted definition of forensic psychology. A few relevant definitions are detailed in the following text, ranging from most restrictive to most expansive. The Specialty Guidelines for Forensic Psychologists promulgated by the Committee on Ethical Guidelines for Forensic Psychologists in 1991 defined forensic psychology rather narrowly, limiting the field to professional practice by psychologists within any subdiscipline of psychology (e.g., clinical, developmental, social, and experimental) when they are engaged regularly as experts and represent themselves as such in an activity primarily intended to provide professional psychological expertise to the judicial system. According to this definition, a forensic psychologist’s role is that of a highly objective scientist-practitioner, whose function is limited to assisting legal fact finders in making well-informed decisions. The American Psychological Association took a similarly narrow approach to defining forensic psychology when it officially recognized the discipline in 2001, limiting the field’s scope primarily to the clinical aspects of forensic assessment, treatment, and consultation (Otto & Heilbrun, 2002). At the time of this writing, the American Psychology-Law Society (Division 41 of the American Psychological Association) appears poised to adopt a more expansive set of specialty guidelines, which define forensic psychology as all professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, and cognitive) when the intended purpose of the service is to apply the scientific, technical, or specialized knowledge of psychology to the law and to use that knowledge to assist in solving legal, contractual, and administrative problems (Committee on the Revision of the Specialty Guidelines for Forensic Psychologists, 2006). This more inclusive conception of forensic psychology reflects an ever-broadening view of forensic practice because it recommends moving from simply assisting legal fact finders to more generally working to address a range of legally related issues through applied psychological practice.

6

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

A still broader definition includes the integration of applied and experimental psychology with forensic psychological research. A definition including both facets has been advocated by prominent forensic psychologists for a number of years (e.g., Grisso, 1987). An example of one such definition suggests that the term “[f]orensic psychologist refers to any psychologist, experimental or clinical, who specializes in producing or communicating psychological research or assessment information intended for application to legal issues” (Grisso, 1987, p. 831; see Bartol & Bartol, 2006). According to this definition, forensic psychology is both the research endeavor that examines aspects of human behavior directly related to the legal process and the professional practice of psychology within, or in consultation with, a legal system that embraces both civil and criminal law and the numerous areas where they intersect (Bartol & Bartol, 2006; Grisso, 1987). These broader definitions encompass practice areas that work in direct contact with the legal system, as well as those conducting research into areas of human cognition and behavior that are relevant to the functions and operation of the legal system. Perhaps the broadest conceptualization of forensic psychology advocates using psychological knowledge and research not only to assist legal actors within the judicial system, but also asserts that the field has a role to play as a therapeutic agent and evolutionary force within legal contexts. Under this definition, professional forensic psychology can act as a guide and advocate for making the law more therapeutic, and in doing so help the legal system become more effective in achieving its aims. This approach is heavily influenced by the “theralaw” and therapeutic jurisprudence traditions, which assert that the legal system should seek to promote the health and emotional well-being of individual citizens in addition to ensuring justice and social order (e.g., Wexler & Winick, 1996). This approach is sometimes referred to as psycholegal, and it frequently embraces a multidisciplinary, systemic approach to addressing psychological issues within a legal context (e.g., Elwork, 1984). Although each of these conceptualizations posits a separate breed of psychologist whose job it is to interact with the legal system, mental health professionals of all stripes will frequently find themselves drawn into contact with the law and legal actors. One prominent commentator points out that “every psychologist—whether clinician, scientist or academician—is a potential expert witness . . . and each must be prepared to interact with the legal system” (Bersoff, 2003, p. 444). Accordingly, although forensic psychologists may be specially qualified to understand and work in concert with the legal system, they cannot, and indeed should not, claim the whole of forensic practice as their exclusive domain. Nonforensic treatment professionals have served as treating professionals, assessors, and experts within the legal system since the inception of professional psychology, and will undoubtedly continue to do so.

The Current State of Forensic Practice The American Psychology-Law Society estimates that it currently has approximately 2,800 members in good standing, with that number being primarily composed of doctoral-level forensic psychologists scattered across the United States and Canada (L. Peterson, personal communication, April 24, 2006). Forensic psychologists are

Training in Forensic Assessment and Intervention

7

employed across a wide range of institutional and government settings, including state psychiatric centers, community mental health centers, federal and state law enforcement, universities and university-based clinics, court-sponsored clinics, and correctional venues of all sorts (including prisons, juvenile detention centers, and local jails), just to name a few (American Psychology-Law Society, 2006). Forensic practitioners are increasingly striking out independently as well, with forensically oriented solo and group practice arrangements becoming more and more common. The range of available job descriptions for forensic psychologists is expanding at a similar rate. Historically, forensic psychology has been most closely associated with the assessment of individuals involved with the criminal justice system. Commonly cited examples of such assessments include evaluations of a defendant’s ability to adequately understand and participate in various stages of the adjudicatory process, and evaluations of whether a defendant should be held legally culpable for his or her actions (Melton, Petrilla, Poythress, & Slobogin, 1997). It is also increasingly more common for forensic psychologists to participate in the sentencing phase of a defendant’s trial by evaluating whether that defendant’s psychological state, cognitive capacity, or developmental background might provide mitigating circumstances due to which a sentence’s severity may be reduced (Melton et al., 1997). Recent changes in constitutional law, such as a recent decision prohibiting the execution of mentally retarded offenders, make it likely that the demand for such evaluations will only continue to expand (Atkins v. Virginia, 2002; Knauss & Kutinsky, 2004). Forensic psychologists may also be called upon to evaluate individuals involved in civil (i.e., noncriminal) disputes. Such evaluations occur across a range of legal contexts and referral questions. For example, forensic psychologists frequently evaluate the cognitive functioning and mental health of plaintiffs in civil lawsuits who claim to have been harmed by the negligence, malpractice, or wrongdoing of a defendant (Heilbrun, Marczyk, & DeMatteo, 2002; Melton et al., 1997). Assessments of whether an individual has the capacity to make important life decisions (e.g., creating a will or contract, managing money, or making health care decisions) are also commonplace (Heilbrun et al., 2002; Melton et al., 1997). Forensic psychologists are also frequently called upon to evaluate both children and their parents in the family law context, especially when divorcing parents cannot agree on what kinds of custody arrangements are in their children’s best interests, or when allegations of abuse or neglect have raised questions regarding parental rights (Heilbrun et al., 2002; Melton et al., 1997). In addition to forensic assessment, forensic psychologists are often employed as treatment professionals working within prisons, juvenile detention facilities, and other correctional institutions (Leschied, Bernfeld, & Farrington, 2001). They also frequently provide treatment in state hospitals and psychiatric centers (American Psychology-Law Society, 2006). In each of these settings, forensic psychologists may be called upon to both treat mental illness and possibly restore emotionally or cognitively compromised individuals to a basic state of legal competence so that they may effectively participate in the adjudicatory process. Forensic psychologists employed in hospitals, mental health centers, or in private practice may also provide specialized treatment for individuals who are, have been, or are at risk of becoming involved with the criminal justice system (e.g., sex offenders, domestic violence perpetrators, and drug offenders).

8

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

Finally, forensic psychological researchers work to better understand a range of issues related to the intersection of psychology and the legal system. Such research includes the development and validation of psychological measures to be used with specific forensic populations (e.g., sex offenders, psychopaths, and domestically violent offenders), and an examination of how forensic instruments are being used in forensic practice. Others work to develop measures designed to assess specific legal questions that have psychological implications, such as assessment of competence to stand trial, or measures designed to assess psychological phenomena that often become important during the course of a legal proceeding, such as malingering or change in cognitive functioning. Still others examine the effectiveness of various treatments with specific forensic populations (e.g., efficacy of specialized treatment for sex offenders or domestic violence perpetrators). Other researchers study the ways in which crime and psychology interact, such as the impact of abuse or victimization on individual development or productivity, or identifying risk factors that may make certain individuals prone to violence, addiction, or criminal behaviors.

Educational and Training Opportunities in Forensic Psychology The field of law and psychology has undergone significant growth in the past 30 years, as evidenced by various indicators of our field’s ongoing development. There are a number of professional organizations devoted to law and psychology (or the related discipline of law and psychiatry), including the American Psychology-Law Society (AP-LS; Division 41 of the American Psychological Association), the European Association of Psychology and Law (EAPL), the American Academy of Psychiatry and the Law (AAPL), and the International Academy of Law and Mental Health (IALMH). These organizations have experienced considerable growth since their establishment; for example, AP-LS has nearly doubled in size in the past 7 years (see Krauss & Sales, 2006). Moreover, attendance at national conferences sponsored by organizations such as AP-LS continues to rise. There are also a number of specialty journals that publish empirical, theoretical, and practice material relevant to law and psychology, including, for example, Behavioral Sciences and the Law, Criminal Justice and Behavior, International Journal of Forensic Mental Health, Journal of the American Academy of Psychiatry and the Law, and Law and Human Behavior. Another development is the establishment of several “hybrid,” law-school-sponsored law-psychology journals, including Law and Psychology Review and the APA-published Psychology, Public Policy, and Law. In addition to scholarly journals, recent years have seen the publication of numerous books relating to law and psychology, with many of these books taking an increasingly sophisticated look at various aspects of this rapidly growing discipline. The growth and development of the field of law and psychology is perhaps best evidenced by looking at the number and diversity of educational and training opportunities available to both students and practitioners. These opportunities range from undergraduate survey courses that examine the broad intersection of law and psychology to joint-degree graduate programs that allow students to obtain terminal degrees in both law (J.D.) and psychology (Ph.D., Psy.D.). In addition, opportunities

Training in Forensic Assessment and Intervention

9

for postdoctoral specialization in law and psychology (or psychiatry) are becoming increasingly more available and popular. One of the fastest growing specialty areas of the field of law and psychology is forensic psychology, broadly defined to include both clinical and applied work (i.e., forensic mental health assessments and forensic-based interventions, such as restoration to competence) and forensic research (clinical and nonclinical). As the popularity of forensic psychology has increased, so too has the availability of forensic psychology training programs. Forensic psychology graduate programs, or programs that offer a forensic psychology track or concentration, exist at both the master’s and doctoral levels, and they offer a wide variety of educational and training opportunities in both clinical and nonclinical (i.e., research-based) forensic psychology. Applications for admission to these forensic psychology training programs and tracks have increased quite considerably in recent years. In spite of this exceptional growth in educational and training opportunities for students and practitioners in the field of forensic psychology, there is little agreement in the field regarding the appropriate training models, curricula, and goals of these specialized training programs (see Bersoff et al., 1997, and Krauss & Sales, 2006, for descriptions of this problem). The field of forensic psychology continues to broaden in both scope and diversity, and it encompasses a wide variety of knowledge and skills (e.g., knowledge of legal standards, research skills, and assessment and intervention skills). Although forensic psychology training programs have increased in number, scope, and sophistication in recent years, important questions remain regarding the structure, focus, and goals of these programs. The following sections of the chapter will discuss the educational and training opportunities available to students and practitioners in the field of forensic psychology. As will be discussed, there are a variety of educational and training opportunities that are currently available to students and practitioners at almost every level of advanced education and professional experience. This chapter will also discuss the diversity in training models employed in these various training programs, and consider whether current training models adequately prepare law-psychology students to become forensic practitioners. Educational, Training, and Credentialing Opportunities in Forensic Psychology The educational and training opportunities available for students and professionals interested in forensic psychology have increased considerably over the past 30 years. Importantly, a variety of educational and training opportunities currently exist at the undergraduate, graduate, and postdoctoral levels. There are also opportunities for advanced credentialing (i.e., board certification) for those forensic practitioners who wish to distinguish themselves as having specific expertise in forensic psychology. This section will review the educational, training, and credentialing opportunities that are currently available. Undergraduate Training in Forensic Psychology Many colleges and universities offer at least one undergraduate-level course in law and psychology. Several surveys

10

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

conducted in the 1990s indicated that the number of undergraduate law-psychology courses was rising (see Ogloff, Tomkins, & Bersoff, 1996), and that many high-ranking psychology departments offered at least one course in law and psychology (see Bersoff et al., 1997, for a review of this research). Anecdotally, law and psychology courses, particularly courses that focus on forensic psychology, are often among the most popular course offerings at the undergraduate level. Recent years have witnessed an increase not only in the number of schools offering law and psychology courses, but also in the diversity of the courses and training curricula that are being offered at the undergraduate level. Whereas most of the undergraduate courses offered in years past were survey courses that focused broadly on the intersection between law and psychology, many of the newer courses take a more detailed and sophisticated look at specific and circumscribed aspects of the field of law and psychology. (For a list of some undergraduate course offerings in law and psychology, please refer to the Web site of the American Psychology-Law Society at www.ap-ls.org.) For example, besides general law and psychology courses aimed at providing a broad overview of the field, undergraduate courses are now being offered in areas such as child witnesses, the role of psychology in the legal process, and forensic psychology. A more recent development is the offering of undergraduate degrees in forensic psychology. For example, John Jay College of Criminal Justice currently offers a Bachelor of Arts in Forensic Psychology that offers training in psychological theory, research methods, and the application of psychological principles to specific areas in the legal system. Graduate Training in Forensic Psychology Notwithstanding some recent advances in course offerings and curricula in forensic psychology at the undergraduate level, the educational and training opportunities for undergraduates interested in forensic psychology are still rather limited. There are considerably more educational and training opportunities in forensic psychology for students enrolled in graduate training programs. Depending on one’s academic and professional interests, various options are available at both the master’s and doctoral levels, and there are also several clinical and nonclinical joint-degree programs available for those who wish to obtain formal training in both law and psychology. For an excellent discussion of graduate training opportunities available in forensic psychology, interested readers are referred to Krauss and Sales (2006). Broadly speaking, graduate programs in forensic psychology can be categorized by program focus (e.g., clinical forensic psychology, nonclinical legal psychology), training goals (e.g., clinical scientist-practitioner, nonclinical scientist-scholar), and degrees awarded (e.g., master’s, doctorate, and joint-degree; see Krauss & Sales, 2006). On a more practical level, existing graduate programs in law and psychology, and forensic psychology more specifically, also differ quite considerably in terms of length of training, which can range from 2 to 7 years post–bachelor’s degree, and degree of financial support provided to students. As will be seen in the discussion that follows, students interested in forensic psychology have a rich variety of training programs from which to choose. (For an up-to-date listing of available graduate programs that offer training in forensic psychology, interested readers should consult the Web site of the American Psychology-Law Society at www.ap-ls.org.)

Training in Forensic Assessment and Intervention

11

According to the AP-LS Web site, which describes training opportunities available in law and psychology, there are between five and ten programs that offer a master’s degree in forensic psychology. Identifying the exact number of existing programs is often difficult, because some programs do not admit students on a regular basis. Some of these programs are clinical in nature, whereas others are nonclinical. In terms of program goals, some of these programs are designed to prepare students for research or clinical positions within various institutions and professional agencies, whereas other programs are designed to prepare students for continued training in Ph.D. programs. There are a variety of educational and training opportunities available in forensic psychology at the doctoral level (Ph.D., Psy.D.) and joint-degree level (J.D./Ph.D., J.D./Psy.D., J.D./M.A., Ph.D./M.L.S.). Some students obtain training and experience in forensic psychology as part of a Ph.D. program in clinical psychology. In these programs, forensic psychology may not be a core component of the program, yet these programs may have faculty with forensic interests and students may be offered educational and practical experiences in forensic psychology. Other Ph.D. and Psy.D. programs in clinical psychology have a formal programmatic emphasis in forensic psychology, and they may offer a specialized track or concentration in forensic psychology. Graduates from these programs have a Ph.D. or Psy.D. in clinical psychology with specific training in the subspecialty of forensic psychology. Several graduate programs offer a Ph.D. specifically in forensic psychology, either with a clinical or nonclinical focus. Finally, there are several joint-degree programs available for those students who are interested in obtaining formal training in both law and psychology. At last count, six programs offered J.D./Ph.D. (or J.D./Psy.D. in the case of Widener University) programs in law and psychology: Drexel University, Pacific Graduate School of Psychology, University of Arizona, University of Florida, University of Nebraska, and Widener University. In some of these programs, students have the option of pursuing either clinical or nonclinical doctoral training in psychology. The University of Nebraska offers a variety of joint-degree options, including J.D./Ph.D., J.D./M.A., and Ph.D./M.L.S. (Master’s of Legal Studies). There are also several other schools that permit students to pursue a J.D. and Ph.D. concurrently, but that offer no formal or coordinated/integrated curricula in law and psychology. Students pursuing a Ph.D. or Psy.D. in clinical psychology (or other applied areas of psychology, such as counseling psychology and school psychology) are required to complete a 1-year APA-accredited predoctoral internship prior to receiving their degree. There are numerous internship sites that offer training and clinical/research experience in forensic psychology. These specialized internship experiences are ideal for those students who are seeking to build upon an existing base of forensic knowledge, experience, and skills. For these students, completing a forensic-focused internship is an effective way to broaden and refine one’s repertoire of forensic knowledge and abilities, and it often serves as an effective stepping-stone for obtaining employment in a particular area of forensic psychology. A forensic-focused internship is also useful for those students without significant forensic experience who are seeking to specialize in forensic psychology. Postdoctoral Training and Education in Forensic Psychology There are several training opportunities available in forensic psychology at the postdoctoral level,

12

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

including formal postdoctoral fellowships in forensic psychology and continuing education (CE) programs that are forensically focused. A postdoctoral fellowship in forensic psychology offers the opportunity to obtain intensive, supervised research and practical experience. These training opportunities are ideal for individuals with previous forensic training and experience who are seeking to specialize in a particular area of forensic psychology, or for those individuals trained in nonclinical programs who are seeking to obtain respecialization training in clinical psychology with a forensic emphasis. For individuals with existing forensic experience, a forensic postdoctoral fellowship is an effective way to obtain highly intensive, specialized forensic experience (typically 1 or 2 years), and it often serves as a useful means of obtaining employment working with specific forensic populations. Moreover, postdoctoral fellowships are also useful for those seeking licensure as a psychologist, because states typically require that licensure candidates obtain a specific amount of supervised experience after receiving their doctorate. Individuals trained in nonclinical areas of psychology who wish to pursue a career in forensic psychology can use a postdoctoral fellowship to respecialize in clinical psychology with a forensic emphasis. This process typically requires additional educational and experiential requirements, and it can take several additional years at the postdoctoral level to achieve respecialization. Practitioners can also enhance their forensic knowledge and skill set by attending CE training seminars. CE programs are available on a wide variety of topics within the field of forensic psychology, and they are appropriate for practitioners with varying levels of forensic skills and experience. Existing CE programs range from one-time 3-hour sessions that provide an introduction to a certain topic area within forensic psychology, to intensive 3-day workshops that provide highly specific training on a particular assessment measure or intervention approach. Among other things, these programs effectively function to keep practitioners aware of recent developments in the field. Credentialing in Forensic Psychology Individuals wishing to distinguish themselves as having advanced expertise in forensic psychology can seek board certification. Although several boards offer such certification, the most highly respected board is the American Board of Professional Psychology (ABPP), which offers certification in 13 specialty areas of psychology, including forensic psychology. The credential available for identifying the highest level of competence in forensic psychology is the Diplomate in Forensic Psychology awarded by the ABPP. Eligibility criteria to apply for the Diplomate in Forensic Psychology include the following: a doctoral degree from a program in professional psychology that is accredited by the APA or Canadian Psychological Association, or listed in the Doctoral Psychology Programs Meeting Designation Criteria; licensure or certification at the independent practice level as a psychologist in the state, province, or territory in which the psychologist practices; a minimum of 100 hours of formal education, direct supervision, or continuing education in forensic psychology; and a minimum of 1000 hours of experience in forensic psychology obtained by either the completion of a full-time (at least 1-year) postdoctoral training program in forensic psychology (approved by the American Board of Forensic Psychology) or practice over a minimum period of 4 postdoctoral

Training in Forensic Assessment and Intervention

13

years. The examination process involves a written and oral examination, with the latter being based on the submission of two practice samples.

Basic Competencies and Training Models in Forensic Psychology Although forensic psychology training programs have increased in both number and popularity in recent years, there is little consensus regarding what training models may be most appropriate. The debate over appropriate training models in forensic psychology is not new (see Bersoff, 1999; Bersoff et al., 1997; Freeman & Roesch, 1992; Heilbrun, 1988; Otto, Heilbrun, & Grisso, 1990; Poythress, 1979), and it is likely that the continuing rise in forensic psychology programs will force the profession to reexamine current training models and perhaps develop new ones as the field continues to mature and develop. As the roles of forensic psychologists continue to expand into new and often unforeseen areas of research and practice, it is even more important that training programs properly prepare future researchers and practitioners by incorporating educational, training, and practical experiences that provide a solid foundation of forensic-related knowledge and skills. The lack of consensus regarding appropriate training models for forensic psychology may in part reflect the lack of consensus regarding the definition of forensic psychology and the roles that forensic psychologists should rightfully assume. Although some definitions of forensic psychology focus almost exclusively on the clinical aspects of the profession, other definitions are broader and consider research into law-psychology and psycholegal issues to fall within the scope of forensic psychology. For example, although no one would dispute that forensic mental health assessments fall well within the scope of forensic psychology, there is less agreement regarding whether psycholegal research conducted by cognitive and social psychologists should be considered forensic psychology (e.g., reliability of expert testimony, perceptions of jurors). For the purposes of the present discussion, we will use a broad definition of forensic psychology that encompasses both research and practice. Given the expanding roles, functions, and skills of forensic psychologists, it is challenging to design a graduate program that provides all of the educational, training, and experiential components needed to properly prepare practitioners for a career in forensic psychology. This is particularly true given the time constraints of graduate training. Nevertheless, it is possible to identify a core set of basic competencies that should be emphasized in forensic psychology training programs. For example, at a minimum, it would seem that forensic practitioners (again, referring to both researchers and clinicians) should obtain training and experience in the following areas: (a) substantive psychology (i.e., core knowledge of basic areas of psychology, such as developmental and abnormal); (b) ethics and professional issues; (c) research design and methodology, and statistics; (d) legal knowledge (i.e., judicial procedures, sources of law, substantive law in relevant areas); (e) integrative law-psychology knowledge (i.e., knowledge of research in legal psychology areas, such as eyewitness testimony, jury decision making, and admission of scientific and expert testimony); (f) conducting research (i.e., original research that culminates in a master’s thesis or doctoral dissertation); and (g) applied forensic experience (i.e., forensic mental health assessments

14

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

and interventions). A focus on these areas would seem to adequately prepare practitioners for basic forensic practice. It is important to note that formal training in assessment and intervention would only be provided to students enrolled in clinical programs. Where appropriate, this training could be augmented through a forensic internship, postdoctoral experience, and continuing education. There are several training goals that may be appropriate in forensic psychology programs (see Krauss & Sales, 2006, for an excellent discussion of training models and goals in forensic psychology). On the broadest level, students can be trained to become clinicians (i.e., applied forensic psychology), researchers (either clinical or nonclinical), or both. Using this broad distinction, we will briefly summarize the three general training models used in forensic psychology programs. It should be noted that there is still considerable disagreement about how best to train forensic psychologists, and the following training models are not exhaustive. Some programs train students to become scientist-practitioners, using the Boulder Model. Students in these programs are trained in both the science and practice of clinical and forensic psychology, and graduates from these programs are well suited for careers in research, academia, and practice. Other programs follow a practitioner-scientist model of training. These programs focus less on research and more on the clinical or applied aspects of psychology. Students in these programs typically receive a heavy dose of practicefocused coursework and experiential training. Some forensic psychology programs prepare students to become scientists, with either a clinical or nonclinical focus. Many of these programs are in areas other than clinical psychology, such as cognitive, developmental, and social psychology, and they train students to engage in empirical research designed to increase our forensic knowledge base. These three categories of training models are admittedly broad and not necessarily mutually exclusive, but they provide some indication of the types of training available in forensic psychology programs.

Forensic Assessment and Treatment: Similarities, Differences, and Standards for Service Delivery Forensic Assessment and Intervention Compared The most common forms of forensic psychological service delivery are forensic assessment and intervention with individuals involved with the justice system. General practice directives for both endeavors are articulated in the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991). The Specialty Guidelines provides general parameters for professionally competent service delivery; conducting communications and interactions with the various parties involved with a case; and identifying and protecting the privacy, confidentiality, and privileges associated with specific communications and services (Committee on Ethical Guidelines for Forensic Psychologists, 1991; Otto & Heilbrun, 2002). As with all psychological services, relevant provisions of the American Psychological Association’s (2002) Ethical Principles of Psychologists and Code of Conduct also apply to these activities. In addition, specific standards have been promulgated for evaluations involving divorce- and child-custody-related issues, and evaluations pertaining to the abuse or neglect of

Training in Forensic Assessment and Intervention

15

children (American Psychological Association, 1994; American Psychological Association Committee on Professional Practice and Standards, 1998). In addition to receiving guidance from the same professional ethics codes, forensic assessments and intervention share an additional trait. Unlike their therapeutic counterparts, forensic psychological services are ultimately driven by the legal constructs, competencies, and mandates they are designed to address. Thus, the ultimate goals of a forensic psychological endeavor are defined primarily by legal imperatives as opposed to a patient’s clinical needs. Thus, where a typical therapeutic assessment’s goals may ultimately be to answer a question of clinical relevance to the patient (such as what the cause of their psychological distress might be, or what treatment strategies might be most effective in relieving that distress), the scope of a forensic psychological assessment is typically limited to addressing a highly deterministic question relevant to an ongoing legal proceeding of some kind (such as whether a defendant is competent to stand trial based on standards defined by the U.S. Supreme Court, or whether a defendant meets state law requirements for an insanity-related acquittal). Such legally derived capacities are essentially context-specific functional abilities. Accordingly, the core tasks of any forensic psychological assessment must be concerned with the measurement of those capacities (Committee on the Revision of the Specialty Guidelines for Forensic Psychologists, 2006; Grisso, 1986; Heilbrun, 2001). Similarly, forensic interventions or treatments derive their ultimate goals from the legal directives they seek to fulfill. Thus, where a patient suffering from psychosis is deemed incompetent to stand trial, a forensic practitioner’s treatment focus is on targeted remediation of those deficits that prevent that patient from being able to stand trial. In this context, the ultimate goal is often limited to the restoration of those legal capacities and functional abilities that are directly relevant to the legal mandates driving the intervention, although other intermediary factors may also require remediation to achieve that goal (Elwork, 1992).2 This is in contrast to more typical treatment goals for patients with psychosis, which are often broadly cast to include such patient-centered aims as psychiatric stabilization, symptomatic relief, and global improvement in functioning. Forensic assessments and interventions have a number of other factors in common as well. Melton et al. (1997) describe a series of considerations that distinguish forensic from therapeutic assessments. These factors, although designed to distinguish the two forms of assessment from one another, seem equally applicable to distinguishing forensic interventions and treatments from their therapeutic counterparts. One critical feature of most forensic endeavors is that, unlike their clinical analogues, the forensic psychologist is frequently working to support the goals of some third party (e.g., courts, legal actors, or law enforcement) whose ultimate interests may be in conflict with those of the patient whom the psychologist is assessing or treating. As a result, professional objectivity and accuracy of findings often take priority over patient needs, especially where a patient has been legally mandated for evaluation or treatment. Under these circumstances, a patient’s wishes regarding confidentiality and privacy may not be protected in the same way that they would in a more typical clinical context. This often creates an incentive for patients to deliberately distort or omit critical information that would normally be imparted more freely. A patient’s inclination to be less than forthcoming may be further exacerbated by the

16

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

fact that forensic practitioners may not ethically nurture the impression that they are functioning in a helping capacity, thus creating an additional barrier to open, effective collaboration between the patient and the psychologist (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Finally, external time pressure imposed by courts, attorneys, and law enforcement often compress and disrupt evaluation and treatment timetables, thus hampering their effectiveness. As a result, opportunities to reexamine conclusions are often limited, while the need for accuracy and precision is enhanced (Melton et al., 1997). Ultimately, each of these distinguishing factors is linked by the fact that they all operate as incentives against honest and complete patient disclosure, collaborative relationship building, and effective and unfettered interaction between patient and psychologist.

Forensic Assessment: Best-Practice Models for Service Delivery Despite the fact that they often have similar goals, operate within similar contexts, and receive direction from the same professional ethics codes, forensic assessment and forensic intervention vary in the degree to which well-established standards of practice guide service delivery. Relatively speaking, models for forensic assessment are far better established than for forensic intervention and treatment. As such, forensic assessment approaches are far better represented in the literature, and have been described in much greater detail (e.g., Grisso, 1986; Heilbrun, 1995, 2001; Melton et al., 1997; Morse, 1978a, 1978b). As with all forms of psychological assessment, forensic assessments are used to make well-informed inferences about the person being examined. In the most general sense, they do so by using many of the same methods as all other forms of psychological testing, which include assessment of cognitive functioning, psychopathological symptoms, and personality variables and response style, along with clinical interviewing and records review. Effective assessment of any kind requires sufficient objectivity and neutrality to ensure that personal biases and concerns for a patient’s well-being do not skew an assessor’s methods or findings (American Psychological Association, 2002, at 9.02). Forensic testing, however, often demands a level of scientific and methodological rigor beyond what is demanded in most other clinical realms. The sources of these demands are twofold. First, a court’s procedural rules and expectations require both methodology and conclusions to meet rigorous legal tests related to relevance, reliability, and validity. Although methodological rigor is always expected in any professional psychological assessment, the APA (2002, at 9.06) Ethics Code allows for some leniency in the interpretation of assessment data.3 In contrast, legal evidentiary standards typically require that an expert forensic assessor’s methods and findings be both directly relevant to the legal issue at hand, and meet the stringent four-part test of reliability articulated in Daubert v. Merrell Dow Pharmaceuticals (1993).4 Second, the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) creates a heightened standard regarding relevance of assessment procedures to the particular legal question at issue, overall procedural and methodological rigor, and validity of findings. In particular, the Specialty Guidelines

Training in Forensic Assessment and Intervention

17

requires that forensic experts be able to: (a) explain the psychometric underpinnings of any assessment instrument used, and identify any limitations on the instrument’s use when employed to evaluate a specific issue or individual; (b) identify the data and findings relied upon when drawing a particular conclusion, and explain how particular hypotheses were arrived at or rejected; and (c) explain the relationship between their findings and the legal issues and facts of a case (Committee on Ethical Guidelines for Forensic Psychologists, 1991). These influences operate to create a heightened standard of professional accountability for forensic psychological assessors. Despite these enhanced obligations, a number of researchers and commentators have concluded that the practice of forensic assessment often falls far short of meeting these stringent standards, and that there is significant variation in the practice and quality of forensic assessment across practitioners and referral questions (Borum & Grisso, 1995; Heilbrun & Collins, 1995; Horvath, Logan, & Walker, 2002; Melton et al., 1997; Nicholson & Norwood, 2000; Otto & Heilbrun, 2002; Ryba, Cooper, & Zapf, 2003; Skeem & Golding 1998). A number of commentators have suggested that part of the problem stems from the relative lack of officially sanctioned, issue-specific ethical and practice guidelines available to forensic practitioners (Elwork, 1992; Grisso, 1986; Otto & Heilbrun, 2002). Overall, very few such guidelines exist, making it difficult in many cases for practitioners to identify uniform standards of care within forensic psychology (Grisso, 1986; Otto & Heilbrun, 2002).5 This state of affairs has prompted some commentators to call for “model- ” or “principles-based” approaches to forensic assessment. The earliest models were designed to provide guidance on how to effectively conduct forensic assessments, particularly in the areas of data collection, data interpretation, and the communication of results. The first such model was proposed by Morse (1978a, 1978b) and was based on the observation that the structures of many mental health laws are similar in that they focus on three broad questions: (a) the existence of a mental disorder; (b) the functional abilities related to the tasks that are part of the relevant legal question; and (c) the strength of the causal connection between the first and second areas (see Heilbrun, 2001). The resulting assessment model parallels these basic legal questions in that it requires forensic assessment to answer queries related to the existence of a mental disorder, whether the behavior in question was a product of the mental disorder, and how the individual in question might behave in the future (Morse,1978a, 1978b). These questions guide forensic assessment in that they highlight the importance of data collection in key areas such as mental health symptoms and deficits, capabilities, and competencies that are directly related to the legal test, and how these characteristics affect functional capacities (Heilbrun, 2001; Morse, 1978a, 1978b). Other commentators have noted that, although helpful, this relatively straightforward model might not account for other prominent and important influences that could affect the process of forensic assessment. In response to this concern, Grisso (1986, 2002) developed a model for forensic evaluations that consisted of six characteristics shared by “legal competencies.” The six characteristics were termed functional, contextual, causal, interactive, judgmental, and dispositional. Functional abilities are those “that an individual can do or accomplish, as well as the specific knowledge, understanding, or beliefs” that are relevant to the particular legal competency (Grisso, 1986, p. 15). The contextual component describes the “general

18

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

environmental context, which establishes the parameters for defining the relevance of particular functional abilities for the legal competency construct” (p. 18). Causal inferences “explain an individual’s functional abilities or deficits are related to a legal competency” (p. 20). The interactive characteristic asks whether “this person’s level of ability meet[s] the demands of the specific situation with which the person will be faced” (p. 23). The judgmental aspect addresses whether the “person-context incongruency is of a sufficient magnitude to warrant a finding of legal incompetency and its disposition consequences” (p. 26). Finally, the dispositional aspect refers to the consequences of a finding of incompetence, which may give the state “the authority to act in some way toward the individual” (p. 27). Although there is overlap between the two models, Grisso’s model emphasizes the importance of context and interaction in forensic assessment, aspects that were not accounted for in Morse’s original model (Heilbrun, 2001). Later efforts in this area focused on the differences between therapeutic and forensic assessment, and recommended forensic assessment procedures that were also relevant to psychological testing (Greenberg & Shuman, 1997; Heilbrun 1995, 2001; Melton et al., 1997). Melton et al. (1997) proposed six recommendations related to the application of psychological assessment in forensic settings. The first recommendation focused on the relevance of testing. Testing should be relevant to the specific legal inquiry, and should therefore provide accurate information related to the behavior or capacities related to the legal question before the court. The second recommendation highlighted the role of testing in hypothesis formulation and confirmation. This recommendation emphasized the importance of using collateral records and thirdparty interviews to confirm or reject hypotheses generated by psychological testing. The third recommendation also highlighted the importance of collateral information and de-emphasized the role of psychological testing in the context of certain types of forensic assessments. Specifically, it suggested that collateral approaches (e.g., interviews and document review) should be emphasized more strongly than present-state psychological testing when the evaluation called for reconstruction of the individual’s functioning at an earlier time. The fourth recommendation focused on the psychometric properties of psychological tests used in forensic contexts, noting that they should be valid, reliable, and accurate. The fifth recommendation expanded on the importance of psychometrics by extending the discussion to the development of specific forensic assessment instruments. The focus of this recommendation advocated the development of standardized and psychometrically sound specialized forensic assessment instruments because they might be more relevant than conventional psychological tests for measuring capacities related to legal questions (Grisso, 1986; see Otto & Heilbrun, 2002, for a discussion of forensically relevant instruments versus forensic assessment instruments). The final recommendation highlighted the importance of assessing the potential for exaggeration or fabrication of symptoms of mental illness and cognitive impairment when conducting forensic assessments (Heilbrun et al., 2002; Melton et al., 1997). These initial efforts prompted the development of more detailed recommendations and models. For example, Greenberg and Brodsky articulated a model for civil forensic practice that encompasses 49 guidelines (Heilbrun et al., 2002). These guidelines are divided into nine specific content areas of practice related to forensic assessment

Training in Forensic Assessment and Intervention

19

and include basic aspirations, informed consent and initial process, psychometric assessment, specialized testing, interviews of plaintiff, site observation, collateral interviews, results, and reports and testimony. Guidelines in the basic aspirations area are written at the broadest ethical and practice level and suggest acting in accordance with the Specialty Guidelines for Forensic Psychologists, keeping the role as “expert to the court” as paramount, behaving in consideration of the “public nature” of forensic practice, striving for impartiality in attitude and performance, striving for impartiality in assessment, and striving to maintain a reputation for integrity, knowledge, and skill. Under informed consent and initial process, the guidelines include seeking informed consent from the retaining attorney, making all contact with any party or counsel “on the record,” conducting an initial discussion of informed consent with each party being examined, providing a written statement to the retaining attorney and the examinee that further explains the examination, using standardized examination procedures, and informing the referring attorney regarding any aspect of the evaluation in which they lack competence. The guidelines under psychometric assessment overlap with but also expand on the earlier testing guidelines proposed by Melton et al. (1997). These include using reliable and valid instruments; recognizing human functioning as multidimensional, assuming comparable correlates of test results in clinical and forensic contexts unless there is evidence to the contrary; interpreting test results in light of the particular forensic context; considering test results as hypotheses to be confirmed or rejected; providing examinees with feedback regarding test results, with an opportunity to comment; including only legally relevant interpretive hypotheses in any forensic report; considering both the strengths and limitations of the examinee; interpreting test results to include both strengths and limitations; and incorporating context. The guidelines for specialized testing in this framework are more limited in scope and recommend using specialists as consultants when indicated and interpreting specialized approaches to include both strengths and limitations. Guidelines for interviewing plaintiffs include showing respect toward the examinee, being considerate of the examinee but impartial regarding the forensic issue, using similar measures across examinations of a similar type, using both structured and unstructured approaches to interviews, avoiding a therapeutic relationship with the examinee, and disclosing significant concerns to the examinee and allowing them to respond. Only one guideline is offered under site observation, and it highlights the importance of visiting the site of relevant events. An example of this might include conducting a home visit during the course of a child custody or termination of parental rights evaluation. There are four guidelines under the general rubric of collateral interviews, and they include conducting collateral interviews with a representative sample of those who had significant contact with the examinee, selecting collateral interviewees who have firsthand information, obtaining authorization for release of information from the examinee prior to the collateral contact with a third party having a privileged relationship with the examinee, and obtaining informed consent from all collateral interviewees. Guidelines relevant to results include generating integrated convergent data, avoiding offering any opinion until adequate data to support or refute such an opinion have been considered, and using a standard conceptual organization of results and

20

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

opinions, suggested by applicable law, across cases. Finally, guidelines are provided in the areas of reports and testimony, including avoiding partial opinions or recommendations until the examination is complete; informing the retaining attorney about findings, opinions, and recommendations to give that person the opportunity to decide whether to use the examiner’s services further; including only legally relevant material in reports and opinions; identifying and explaining forensic findings pertinent to impairments in functioning; avoiding pejorative language or interpretations that may unnecessarily or inaccurately pathologize an examinee; avoiding making financial recommendations unless otherwise qualified to do so, or unless such recommendations are psychologically driven; writing at least one substantial paragraph supporting the position of the party against whom the recommendation is made; describing both strengths and weaknesses; avoiding giving opinions about individuals who have not been examined, unless examination has been attempted and supporting data are sufficient to give an appropriately limited opinion; presenting all material, even when it is contrary to the recommendations; releasing raw psychological test data only to a mental health professional skilled in the interpretation of such data; and avoiding making public statements about legal proceedings in which they have been involved (Heilbrun et al., 2002). Obviously, the previous models provide valuable guidance and recommendations related to certain aspects of forensic assessment. Although helpful, they tend to be circumscribed to a relatively narrow range of applications. Consider, for example, that the models we have discussed so far relate to psychological testing and forensic assessment conducted primarily in a civil, not criminal, context. This suggests that there was no set of sufficiently broad principles that could be applied to the shared features of different types of forensic assessment, and that such a model was still needed. In response, Heilbrun (2001) provided a detailed description of such a set of broadly applicable principles. The 29 principles of forensic mental health assessment (FMHA) identified and described by Heilbrun (2001) were organized sequentially around the four broad steps within FMHA: (a) preparation, (b) data collection, (c) data interpretation, and (d) communication. The principles under the preparation category referred to the earliest steps taken in the process of forensic assessment and include the following: Identify relevant forensic issue; accept referrals only within area of expertise; decline referral when evaluator impartiality is unlikely; clarify role with attorney; clarify financial arrangements; obtain appropriate authorization; avoid dual-role relationships of therapist and forensic evaluator; determine the role to be played within forensic assessment if the referral is accepted; and select and employ a model to guide data gathering, interpretation, and communication. The principles under data collection focus on the selection of data sources and assessment strategies and the administration of those strategies and include the following: Use multiple sources for each area being assessed; use relevance and reliability (validity) as guides for seeking information and selecting data sources; obtain relevant historical information; assess clinical characteristics in relevant, reliable, and valid ways; assess legally relevant behavior; ensure that conditions for evaluation are quiet, private, and distraction-free; provide appropriate notification of purpose and obtain appropriate

Training in Forensic Assessment and Intervention

21

authorization before beginning; and determine whether the individual understands the purpose of the evaluation and associated limits on confidentiality. The principles under data interpretation are concerned with assessing response style, incorporating scientific reasoning and data, and making assertions and clarifying limits and include the following: Use third-party information in assessing response style; use testing when indicated in assessing response style; use case-specific (idiographic) evidence in assessing clinical condition, functional abilities, and causal connection; use nomothetic evidence in assessing clinical condition, functional abilities, and causal connections; use scientific reasoning in assessing causal connection between clinical condition and functional abilities; do not answer the ultimate legal question directly; and describe findings and limits so that they need change little under cross-examination. The principles under communication address the issue of both written communication in the form of report writing and oral communication in the form of testimony and include the following: Attribute information to sources; use plain language and avoid technical jargon; write report in sections according to model and procedures; base testimony on the results of the properly performed forensic mental health assessment; and testify effectively. Heilbrun (2001) discussed each principle in terms of the support that it received from four sources of authority: ethics, law, science, and practice. The major sources of ethical authority were the ethical standards for psychology (Ethical Principles of Psychologists and Code of Conduct, American Psychological Association, 1992), the ethical guidelines for forensic psychology (Specialty Guidelines for Forensic Psychologists, Committee on Ethical Guidelines for Forensic Psychologists, 1991), the ethical standards for psychiatry (Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry, American Psychiatric Association, 1998), and the ethical guidelines in forensic psychiatry (Ethical Guidelines for the Practice of Forensic Psychiatry, American Academy of Psychiatry and the Law, 1995). Support from legal sources of authority was analyzed by examining federal case law (federal appellate and U.S. Supreme Court cases), federal statutes and administrative regulations, and “model” mental health law (e.g., Criminal Justice Mental Health Standards, American Bar Association, 1989). Scientific support was assessed by reviewing the relevant behavioral science and medical literature, with particular attention to welldesigned empirical studies. Finally, the practice criterion considered the extent to which each principle is recognized by various authors, organizations, and other contributors to the professional literature as being important or useful for the practice of FMHA. Based on an analysis using these sources of authority, Heilbrun (2001) classified each principle as either established or emerging. Established principles are largely supported by research, accepted in practice, and consistent with ethical and legal standards, whereas emerging principles are supported in some areas, but evidence is mixed or lacking in others, or partly supported but with continuing disagreement regarding their application (Heilbrun, 2001). This principles-driven framework shares some commonalities with the models that we have already discussed. Each of the models attempts to provide guidance for improving the overall quality of forensic assessment. Heilbrun’s (2001) principles accomplish this goal while also providing more substantive guidance that should translate across

22

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

a wide variety of forensic assessment referral questions encompassing a wide range of legal questions and forensic issues (e.g., Heilbrun, 2001, 2003; Heilbrun, DeMatteo, & Marczyk, 2004; Heilbrun et al., 2002, 2003, 2005; Lander, Pich, Loiselle, & Heilbrun, 2006; Marczyk, Heilbrun, DeMatteo, & Bell, 2003). Despite the obvious value of these approaches, ongoing research is necessary to validate the utility of each of these models for improving the overall quality of forensic mental health assessment.

Forensic Treatments and Interventions: Constructing a Model Approach In forensic contexts, psychological and behavioral treatments are often used to address cognitive deficits, behaviors, psychological symptoms, and personality factors that impact a person’s functioning within a specific legal context. Goals of such treatments may include the acquisition or restoration of particular legal competencies (including competency to stand trial or the ability make legal decisions), behavioral modification and offender rehabilitation (including programming designed to help offenders avoid reoffending), or fulfilling postsentence or diversion program requirements for those mandated into treatment in lieu of other legal sanctions (including court-ordered substance abuse treatment or anger management classes). Also relevant are treatments and interventions that have historically fallen under the purview of correctional psychology. These include forms of treatment offered within criminal justice contexts (such as prisons, jails, detention centers, and juvenile justice facilities), along with so-called wraparound services offered to offenders living in the community. Such programs often have multiple goals, including decreasing recidivism and relapse prevention, and typically include both psychoeducational training and sanctions for failure to comply with program requirements, offender rehabilitation, and surveillance and supervision of those individuals on some form of supervised release (Welsh & Farrington, 2001). Unlike their assessment counterparts, however, forensic interventions have few, if any, agreed-upon conceptual models to guide their delivery. This represents a serious gap in our professional standard of care given that, as discussed earlier, many of the same heightened concerns and expectations apply equally to forensic assessment and forensic intervention. Although guidelines for treatment delivery must always be specialized and specific to the particular population and needs being served, attention must nonetheless be paid to the shared features of various forensic interventions. The obvious relevant question becomes one of whether forensic treatment is an activity that should be considered a collection of different interventions defined solely by legal issues or populations served, or whether there are common, identifiable principles that apply across various forensic treatments (Heilbrun et al., 2002). To date, this question has not been addressed to nearly the same degree as it has within the forensic assessment context. Despite the great need for uniform bestpractice standards, there is a relative dearth of research and scholarly writing on the topic. A recent examination of several prominent textbooks canvassing the current state of forensic psychology revealed little discussion of general treatment standards and guiding principles for forensic intervention as a whole (e.g., O’Donohue & Levensky, 2004; Weiner & Hess, 2006).6

Training in Forensic Assessment and Intervention

23

At least one author has offered a conceptual model for “psycholegal intervention and treatment” that adapted Grisso’s (1986) assessment model to therapeutic venues (Elwork, 1992). This approach essentially grafts Grisso’s model onto interventions and treatments offered within legal contexts. Consistent with Grisso’s model, Elwork (1992) argued that any intervention pursued in response to specific legal mandates should be guided by attention to functional and interactive expectations, contextual characteristics, causal characteristics, and judgmental and dispositional considerations. Accordingly, this model asserts that the focus of any intervention occurring in a legal context must be related to those functional abilities, behaviors, or capacities that the patient or client is legally expected to regain or exhibit, and that treatment goals need to be concrete and specifically intended by law (Elwork, 1992). Although this approach represents an important first step in standardizing forensic intervention practice guidelines, it leaves many critical questions unanswered. A number of other factors must also be considered when describing an effective model for forensic intervention and treatment delivery. Forensic clinicians must be given guidance on how to proceed with forensic interventions for which an apparent dearth of established, well-validated, and effective treatments exist for the problem, population, and context in which the treatment is taking place. At the very least, such a model would need to provide guidance on how to comprehensively approach the array of difficult-to-treat and often co-occurring disorders that may impair functional capacities, but that are of less interest to the law, such as antisocial personality disorder or substance abuse disorders. Thus, protocols for effective discovery and dissemination of information on different treatment approaches and their outcome data are critical to any comprehensive model of forensic intervention (Leschied et al., 2001). Despite disagreements about best practices in all forms of intervention, there is a relatively clear trend in modern psychology toward evidence-based practice throughout most specialties in professional psychology, and a similar trend is apparent in other health care professions (Barlow, 2005; Edwards, Dattilio, & Bromley, 2004; Hunsley & Mash, 2005; McCabe, 2004; Messer, 2004; Norcross, Beutler, & Levant, 2006). The primary driving forces behind the emphasis on evidence-based practice are cost containment, improving the quality of patient care, calls for professional accountability, and a gradually evolving empirical research base and applied literature (Barlow, 2005). In essence, there is pressure on most if not all specialties within psychology to shift from purely theoretical models to models based on different types of empirical support. This pressure is apparent even in the face of a lack of consensus for most types of psychological interventions. In spite of these calls for a shift from the purely theoretical to more evidence-based practice, there is still considerable variation in many areas related to the quality of forensic intervention practice and, as noted previously, there is currently little substantive or regulatory guidance for the vast majority of forensic pursuits in this area. As in the assessment context, this situation seems to suggest the need for the development of broad practice guidelines, or principles, to guide forensic intervention. In the absence of this guidance, the question becomes how such a set of principles would be developed. Although there are some similarities, forensic intervention and treatment operate under different assumptions and conditions from forensic assessment. Nevertheless, it seems likely that a set of preliminary guidelines could be established by adopting

24

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

the approaches currently used to provide guidance for improving the overall quality of forensic assessment. As with forensic assessment, such an approach would require an exploration of available substantive guidance from relevant sources of information that could include ethics, law, science, and practice. For example, from an ethics standpoint, both the Ethical Principles of Psychologists and Code of Conduct (APA, 2002) and the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) address the issue of intervention in both a broad and specific sense. In addition, there is an existing body of case law and statutory guidance that helps define the contours of intervention in both criminal and civil contexts. The most common examples include the least restrictive alternative doctrine in the context of civil commitment, and the right to refuse and consent to psychiatric treatment in the context of competency determinations (Reisner, Slobogin, & Rai, 2004). Information concerning the science and practice of intervention in both general therapeutic and forensic contexts would also contribute to a new intervention framework. Although there is a dearth of intervention data for specific forensic interventions and populations, empirically based outcome data and practice guidelines from the broader therapeutic forum should be applicable to many forensic contexts and issues. It also seems likely that a distillation of guiding principles in a forensic intervention context will draw heavily from the developing literature surrounding evidence-based practice. Notwithstanding recent heightened attention, the concept of evidence-based practice is not new to the field of psychological intervention (e.g., APA, 2006; Shakow et al., 1947; Sox & Wolf, 1993; Thorne, 1947). Although there is some disagreement in the literature regarding exact definitions, the American Psychological Association (2006) defines evidence-based practice as “the integration of the best available research with clinical expertise in the context of patient characteristics, culture, and preferences” (p. 273). Following from this definition, the purpose of evidence-based practice in the context of intervention is to promote effective psychological practice and enhance public health by applying empirically supported principles to case formulation, therapeutic relationship, and intervention (APA, 2006). The proceeding definition of evidence-based practice consists of three main components: (a) best available research; (b) clinical expertise; and (c) patient characteristics, cultures, and preferences. The term best available research refers to the knowledge gained from a wide variety of research designs and approaches, including clinical observation, qualitative research, systematic case studies and single-case experimental designs, public health and ethnographic research, process outcome studies, randomized clinical trials, and meta-analysis (APA, 2006, p. 274; McCabe, 2004; Messer, 2004). The data from these research approaches are used to inform decisions regarding treatment efficacy (i.e., the scientific evaluation of whether a treatment works) and clinical utility (i.e., the usefulness of the intervention in clinical settings). The phrase “clinical expertise” refers to “the competence attained by psychologists through education, training, and experience that results in effective practice” (APA, 2006, p. 275 n.2). Clinical expertise is essential for integrating the data obtained from available group-based research, or nomothetic data, with client-specific, or idiographic, data. The construct of clinical expertise encompasses a number of competencies that contribute to effective practice, including the following : assessment, diagnostic judgment, systematic

Training in Forensic Assessment and Intervention

25

case formulation, and treatment planning; clinical decision making, treatment implementation, and monitoring of patient progress; interpersonal expertise; continual self-reflection and acquisition of skills; appropriate evaluation and use of research evidence in both basic and applied psychological science; understanding the influence of individual and cultural differences on treatment; seeking available resources as needed; and having a cogent rationale for clinical strategies (APA, 2006). The final component, patient characteristics, culture, and preferences, refers to the belief that psychological services are most effective when they are responsive to the idiographic characteristics of the individual receiving the services. Accordingly, this competency provides another framework for integrating research and clinical expertise with an understanding of patient characteristics (APA, 2006). In essence, evidence-based practice provides a foundation for effective practice in all settings through the integration of nomothetic and idiographic data into a model that encourages ongoing professional development and training. Such an approach is consistent with the general framework of principle-based models. For example, 2 of Heilbrun’s (2001) 29 principles emphasize the importance of using both idiographic and nomothetic data in forensic psychological evaluations. Consider for a moment that a principles-driven model for forensic intervention would include the consideration of various sources of information or authority. Most relevant here would be intervention-based research and practice data. Evidence-based practice places a heavy emphasis on each of these areas as well. Theoretically, given this overlap, a set of guidelines or principles should provide more substantive guidance that should translate across a wide variety of forensic intervention referral questions that encompass a wide range of legal questions and forensic issues. This seems to suggest the need for the development of broad practice guidelines, or principles, to guide forensic practitioners in the context of intervention.

Conclusions and Implications for Training As noted previously, the number and diversity of training models in forensic psychology have increased in recent years, and there is little consensus regarding what training models may be most appropriate or beneficial. Regardless of the training model, a movement toward principles-based models in forensic assessment and intervention could have significant implications for research, training, practice, and policy (Heilbrun, 2001). As noted earlier, there is considerable variation in the training and practice of forensic assessment and intervention, and there is little substantive guidance for most pursuits in these areas. This lack of guidance not only reflects disagreement among practitioners, but is also a reflection of the limitations of the research base and practice guidelines that support such activities. This highlights the need for a principlescentered approach specific to training in forensic assessment and intervention. We will now describe how a principles-driven approach to intervention and assessment can improve the quality and consistency of forensic assessment, intervention, research, and policy. Incorporating such an approach should also have a significant impact on the quality of training in each of these areas. In addition to providing standardization in training programs, the application of these principles should

26

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

ultimately help to minimize arbitrariness in the legal decision-making process by promoting thoroughness, consistency, clarity, and impartiality. A principles-centered approach to FMHA holds considerable promise for improving the quality of forensic practice because it has value at both a broad and specific level of analysis. At the broadest level, these principles could serve three important functions. The first concerns the training of psychologists in the understanding and practice of forensic assessment and intervention. This type of model could provide trainees with a broad-based and generalizable approach to forensic assessment and intervention that would also allow subsequent development of expertise with specific populations and legal issues. Accordingly, this approach has implications for forensic training programs and related curricula and models. More specifically, it seems that a broad-based exposure to principles would be an excellent method of orienting graduate students and newer practitioners to a guiding framework for assessment and intervention activities (Heilbrun, 2001). Second, the development and application of core principles should have a positive impact on research and theory development in forensic assessment and intervention. The sources of authority that would go into the development of overarching principles should reflect the current state of knowledge in the specialty, and should therefore inform practice in both contexts. It must be noted that the current state of the literature in each of the relevant areas for assessment and intervention is far from comprehensive. This reality should also be integrated into a principles-based approach because it serves to orient the trainee to the limitations in each area and highlights the need for ongoing research to address such shortcomings. This type of approach is demonstrated in Heilbrun’s (2001) model, in which he identified principles as either established or emerging. By definition, principles-based approaches are only as good as the underlying information that supports them. As noted previously, there has been increasing concern over the variation in practice for most forensic pursuits. This is largely a reflection of limited research and other substantive guidance. Accordingly, a principles-based approach, especially in the less developed area of forensic intervention, might have limited empirical support because little or no relevant research has been conducted. Such research could clarify the importance and appropriate application of model principles, and contribute to theory development and refinement in forensic assessment and intervention. Ongoing research might provide empirical support for some principles but not for others. In this event, modifications to the core principles would be needed to reflect changing patterns of empirical evidence. Some principles might be amended or dropped, others might be retained intact, and new principles might emerge. However these principles evolve, having a core set of principles can also serve as an essential step in the larger process of theory development (Heilbrun, 2001). A principles-based approach might also be instrumental in addressing more narrowly focused research questions within the context of forensic assessment and intervention. For example, research in this area could focus on how such principles are actually applied in the context of empirical descriptions of normative forensic assessment and intervention. This avenue might be especially important given the relative paucity of empirical evidence on how assessment and intervention are actually performed across a variety of forensic settings. Similarly, principles-based

Training in Forensic Assessment and Intervention

27

approaches could be used to investigate and define empirical descriptions of desirable forensic practice, including approaches that have not yet been discussed in the literature (Heilbrun, 2001). Third, such principles are relevant to policy. A broad set of principles could help in shaping or interpreting legislation, legal standards, or administrative code relevant to forensic assessment and intervention. Similarly, a set of general principles could also guide the development and implementation of policy intended to promote consistency and quality in forensic assessment and intervention (Heilbrun, 2001). Theoretically, such principles-driven models should improve the quality of forensic assessment and intervention when properly developed and applied. The issue of quality is an important one in an adversarial context. Poorly done forensic assessments are problematic, given the importance and possible consequences of litigation. Incompetently conducted assessments may fail to address the appropriate legal standard; exceed the scope of the evaluation and yield opinions that trespass on the province of the legal decision maker; or fail to provide adequate, credible information consistent with the conclusions drawn from the results of the evaluation (Grisso, 1986, 2003). Similar issues exist in the forensic intervention context. Interventions may fail to target legally relevant competencies, fail to take into account the value of evidence-based practice, and waste valuable clinical resources. Accordingly, a general set of principles in the context of forensic assessment and intervention should provide guidance for avoiding such problems and improve the overall quality of most, if not all, forensic endeavors.

Endnotes 1. This is not to suggest that no psychologist was qualified as an expert in any American court prior to 1962. Bartol and Bartol (2006) write that psychologists were at times qualified in court as expert witnesses at least as early as 1921. However, it appears the Jenkins decision served to catalyze a widespread acceptance of expert psychological testimony. 2. Of course, achievement of those goals may require addressing other co-occurring problems that indirectly impact the legal competency in question. Forensic treatment goals are discussed in greater detail later in this chapter. 3. Section 9.06 of the APA Ethics Code (2002) reads: “When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the various test factors, test-taking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations.” 4. Daubert held that for scientific evidence to be admissible under Rule 702 of the Federal Rules of Evidence, that evidence must have been: (a) derived from methodology that has or can be tested empirically, (b) subjected to peer review and publication, (c) have a known or documented potential rate of error, and (d) have achieved general acceptance in its relevant scientific community. These requirements have been construed to apply to all forms of specialized knowledge, including psychological assessment and expert clinical determinations (Kuhmo Tire Co. v. Carmichael, 1999). This test has been adopted by a majority of states, although there remains some variation among state evidence rules.

28

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

5. The literature has long been rife with calls for the development of more rigorous and uniform standards for forensic practice (Elwork, 1992; Grisso 1986, 1987; Heilbrun, 2001; Otto & Heilbrun, 2002). In an attempt to address these concerns, a number of authors have begun offering evidence-based models designed to provide empirically sound, contextually flexible responses to this need, although to date those models have almost exclusively been aimed at defining standards for forensic assessment (Grisso 1986; Heilbrun, 2001; Melton et al., 1997). 6. Each textbook did contain some discussion of treatment-related issues involving specific populations (including sex offenders and the elderly) or particular contexts (including correctional settings). Although these chapters did contain some discussion of the principles guiding treatment, those discussions were circumscribed to the population and context under discussion (O’Donohue & Levensky, 2004; Weiner & Hess, 2006).

References American Academy of Psychiatry and the Law. (1995). Ethical guidelines for the practice of forensic psychiatry. Bloomfield, CN: Author. American Bar Association. (1989). Criminal justice mental health standards. Washington, DC: Author. American Board of Forensic Psychology. (2006). Forensic psychology. Retrieved May 21, 2006, from http://www.abfp.com/. American Psychiatric Association. (1998). Principles of medical ethics with annotations especially applicable to psychiatry. Washington, DC: Author. American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597–1611. American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677–680. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. American Psychological Association. (2006). Evidence-based practice in psychology. American Psychologist, 61, 271–285. American Psychological Association Committee on Professional Practice and Standards. (1998). Guidelines for psychological evaluations in child protection matters. Washington, DC: American Psychological Association. American Psychology-Law Society. (2006). Careers in psychology and law: Subspecialties in psychology and law: A closer look. Retrieved May 21, 2006, from http://www.ap-ls.org/ students/careersSubspecialties.html. Atkins v. Virginia, 536 U.S. 304 (2002). Barlow, D. H. (2005). What’s new about evidence-based assessment? Psychological Assessment, 17, 308–311. Bartol, C., & Bartol, A. (2006). History of forensic psychology. In I. Weiner & A. Hess (Eds.), Handbook of Forensic Psychology (5th ed., pp. 3–27). Hoboken, NJ: John Wiley & Sons. Bersoff, D. (2003). Ethical conflicts in psychology. Washington, DC: American Psychological Association. Bersoff, D. N. (1999). Preparing for two cultures: Education and training in law and psychology. In R. Roesch, S. D. Hart, & J. R. P. Ogloff (Eds.), Psychology and law: The state of the discipline (pp. 375–401). New York: Kluwer Academic/Plenum Publishers.

Training in Forensic Assessment and Intervention

29

Bersoff, D. N., Goodman-Delahunty, J., Grisso, T., Hans, V. P., Poythress, N. G., & Roesch, R. G. (1997). Training in law and psychology: Models from the Villanova conference. American Psychologist, 52, 1301–1310. Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evaluations. Professional Psychology: Research and Practice, 26, 465–473. Cattell, J.M. (1895). Measurements of the accuracy of recollection. Science, 2, 761–766. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Committee on the Revision of the Specialty Guidelines for Forensic Psychology. (2006). Specialty guidelines for forensic psychologists. Retrieved May 21, 2006 from http://www. ap-ls.org/links/currentforensicguidelines.html. Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). Edwards, D. J. A., Dattilio, F. M., & Bromley, D. B. (2004). Developing evidence-based practice: The role of case-based research. Professional Psychology: Research and Practice, 35, 589–597. Elwork, A. (1984). Psycholegal assessment, diagnosis and testimony. Law and Human Behavior, 8(3/4), 197–203. Elwork, A. (1992). Psycholegal treatment and intervention: The next challenge. Law and Human Behavior, 16(2), 175–183. Freeman, R. J., & Roesch, R. (1992). Psycholegal education: Training for forum and function. In D. K. Kagehiro & W. S. Laufer (Eds.), Handbook of psychology and law (pp. 567–576). New York: Springer-Verlag. Greenberg, S., & Shuman, D. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 1, 50–57. Grisso, T. (1986). Evaluating competencies: Forensic assessments and instruments. New York: Plenum Press. Grisso, T. (1987). The economic and scientific future of forensic psychological assessment. American Psychologist, 9, 831–839. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum Publishers. Heilbrun, K. (1988, August). The role of the predoctoral clinical internship in forensic psychology training. Paper presented at the Annual Convention of the American Psychological Association, Atlanta, GA. Heilbrun, K. (1995). Child custody evaluation: Critically assessing mental health experts and psychology tests. Family Law Quarterly, 29, 63–78. Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Klewer/Plenum. Heilbrun, K. (2003). Principles of forensic mental health assessment: Implications for the forensic assessment of sexual offenders. Annals of the New York Academy of Sciences, 89, 1–18. Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at the time of the offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61–67. Heilbrun, K., DeMatteo, D., & Marczyk, G. (2004). Pragmatic psychology and forensic mental health assessment: Applying principles to promote quality. Psychology, Public Policy, & Law, 10, 31–70. Heilbrun, K., DeMatteo, D., Marczyk, G., Finello, C., Smith, R., & Mack-Allen, J. (2005). Applying principles of forensic mental health assessment to capital sentencing. Widener Law Review, 11, 93–118.

30

Geoffrey Marczyk, David DeMatteo, Joshua Kutinsky, and Kirk Heilbrun

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York: Oxford University Press. Heilbrun, K., Marczyk, G. R., DeMatteo, D., Zillmer, E., Harris, J., & Jennings, T. (2003). Principles of forensic mental health assessment: Implications for neuropsychological assessment in forensic contexts. Assessment, 10, 329–343. Horvath, L. S., Logan, T. K., & Walker, R. (2002). Child custody cases: A content analysis of evaluations in practice. Professional Psychology: Research and Practice, 33, 557–565. Hunsley, J., & Mash, E. J. (2005). Introduction to the special section on developing guidelines for the evidence-based assessment of adult disorders. Psychological Assessment, 17, 251–255. Jenkins v. United States, 307 F.2d 637 (1962). Knauss, L., & Kutinsky, J. (2004). Into the briar patch: Ethical dilemmas facing psychologists following Atkins v. Virginia. Widener Law Review, 11, 121–135. Krauss, D. A., & Sales, B. D. (2006). Training in forensic psychology: Training for what goal? In I. B. Weiner & A. K. Hess (Eds.), The handbook of forensic psychology (3rd ed., pp. 851–871). New York: John Wiley & Sons. Kuhmo Tire Co. v. Carmichael, 526 U.S. 137 (1999). Lander, T., Pich, M., Loiselle, K., & Heilbrun, K. (2006, March). The content and quality of forensic mental health assessment in Pennsylvania: Validation of a principles-based approach. Paper presented at the annual conference of the American Psychology-Law Society, St. Petersburg, FL. Leschied, A., Bernfeld, G., & Farrington, D. (2001). Implementation issues. In G. Bernfeld, D. Farrington & A. Leschied (Eds.), Offender rehabilitation in practice (pp. 3–24). Chichester, UK: John Wiley & Sons. Marczyk, G., Heilbrun, K., DeMatteo, D., & Bell, B. (2003). Using a model to guide data gathering, interpretation, and communication in capital mitigation evaluations. Journal of Forensic Psychology Practice, 3, 89–103. McCabe, O. L. (2004). Crossing the quality chasm in behavioral health care: The role of evidence-based practice. Professional Psychology: Research and Practice, 35, 571–579. Melton, G., Petrilla, J., Poythress, N., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed). New York: Guilford. Messer, S. B. (2004). Evidence-based practice: Beyond empirically supported treatments. Professional Psychology: Research and Practice, 35, 580–588. Morse, S. J. (1978a). Crazy behavior, morals and science: An analysis of mental health law. Southern California Law Review, 51, 527–654. Morse, S. J. (1978b). Law and mental health professionals: The limits of expertise. Professional Psychology, 9, 389–399. Munsterberg, H. (1908). On the witness stand: Essays on psychology and crime (1st ed.). New York: McClure. Nicholson, R., & Norwood, S. (2000). The quality of forensic psychological assessments, reports and testimony: Acknowledging the gap between promise and practice. Law and Human Behavior, 24, 9–44. Norcross, J. C., Beutler, L. E., & Levant, R. F. (2006). Evidence-based practices in mental health: Debate and dialogue on fundamental questions. Washington, DC: American Psychological Association. O’Donohue, W., & Levensky, E. (2004). Handbook of forensic psychology: Resource for mental health and legal professionals. New York: Elsevier Science. Odom v. State, 174 Ala. 4, 7 (1911).

Training in Forensic Assessment and Intervention

31

Ogloff, J. R. P., Tomkins, A. J., & Bersoff, D. N. (1996). Education and training in law/criminal justice: Historical foundations, present structures, and future developments. Criminal Justice and Behavior, 23, 200–235. Otto, R., & Heilbrun, K. (2002). The practice of forensic psychology. American Psychologist, 57, 5–18. Otto, R. K., Heilbrun, K., & Grisso, T. (1990). Training and credentialing in forensic psychology. Behavioral Sciences and the Law, 8, 217–231. Poythress, N. G. (1979). A proposal for training in forensic psychology. American Psychologist, 34, 612–621. Reisner, R., Slobogin, C., & Rai, A. (2004). Law and the mental health system: Civil and criminal aspects. New York: The Foundation Press. Ryba, N. L., Cooper, V. G., & Zapf, P. A. (2003). Juvenile competence to stand trial evaluations: A survey of current practices and test usage among psychologists. Professional Psychology: Research and Practice, 34, 499–507. Shakow, D., Hilgard, E. R., Kelly, E. L., Luckey, B., Sanford, R. N., & Shaffer, L. F. (1947). Recommended graduate training programs in clinical psychology. American Psychologist, 2, 539–558. Skeem, J., & Golding, S. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29, 357–367. Sox, H. C., Jr., & Wolf, S. H. (1993). Evidence-based practice guidelines from the U.S. Preventive Services Task Force. JAMA, 169, 2678. Terman, L. (1917). A trial of mental and pedagogical tests in a civil service examination for policemen and firemen. Journal of Applied Psychology, 1, 17–29. Thorne, F. C. (1947). The clinical method in science. American Psychologist, 2, 159–166. Weiner, I., & Hess, A. (2006). Handbook of forensic psychology (3rd ed.). Hoboken, NJ: John Wiley & Sons. Welsh, B., & Farrington, D. (2001). Evaluating the economic efficiency of correctional intervention programs. In G. Bernfeld, D. Farrington & A. Leschied (Eds.), Offender rehabilitation in practice (pp. 45–66). Chichester, UK: John Wiley & Sons. Wexler, D. B., & Winick, B. J. (Eds.) (1996). Law in a therapeutic key: Developments in therapeutic jurisprudence. Durham, NC: Carolina Academic Press.

2 Accessing and Understanding Legal Literature Aaron Miller, Heidi Schrumpf, and Sarah Davis

At first glance, there may seem to be a natural conflict between the fields of law and psychology. Often, a psychologist views an attorney as an enemy. The popular image is of a cut-throat lawyer berating a psychologist witness in an attempt to discredit his or her work, his or her methods, and, ultimately, his or her ability as a clinician or researcher. Although intimidating, the adversarial environment of the courtroom is not the most common arena where law and psychology meet. More frequently, psychologists assist legal professionals by assessing competency, treating mentally ill offenders, or advising on public policies and new laws. Interactions between lawyers and psychologists are becoming more frequent because of the ever-increasing complexity of the fields. Also, a growing interest regarding the way to influence legal decision making has created the need for psychologists who can relate to legal professionals, or “speak their language” (Melton, 1987). For this reason it is important to understand the underlying theory and methods that define each field. Psychologists, because of their empirical training, generally view a sequence of events differently from those educated in legal theory. It is important to remember that there is no inherently right perspective. By simultaneously examining both the legal and psychological theory, it is possible to view an event in a more comprehensive manner. Accordingly, psychology is often incorporated into the law in the form of trial consulting, witness assessment, and competency determinations. As a forensic psychologist, it is important to not only learn the ways in which law and psychology coexist, but to also understand the possible conflicts created by differing views and approaches. Theoretical Underpinnings of Psychology and Law Despite the remarkable level of interplay between psychologists and lawyers within the last few decades, substantial differences still exist between the styles and methods of reasoning, proof, and justification used in psychology and law (Ewing, 1985; Haney, 1980). Haney (1980) has presented many of these theoretical and practical differences in a dichotomous format (see also Franck, 1982; Wrightsman, 2001), although it may be argued that this separation is more apparent than real (Wrightsman, 2001). In the spirit of Haney (1980), the tensions between the disciplines are discussed in the following text. 33

34

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Values and norms versus laws Values can be broadly defined as a standard for decision making based on social acceptability, desirability, and norms, whereas laws are human creations that reflect society’s need to resolve conflict (Thorne, 1978). Laws are “created, amended, or discarded because society has established standards for what is acceptable and unacceptable” (Wrightsman, 2001; Wrightsman, Nietzel & Fortune, 1998). In many cases, although changing values will have an effect on current laws, priorities will vary according to social relevance (Thorne, 1978). Because laws are largely based on morality and established by agreement, tension is inevitable when the values of some sections of society shift faster than legal sanctions (Kojder, 1973). For example, homosexuality was once seen as a mental disorder and sodomy was a crime in all 50 states. Although most homosexual and heterosexual sodomy prohibitions were repealed by the individual states, it took a Supreme Court decision in 2003 to completely eradicate antisodomy laws that targeted homosexuals (Lawrence et al. v. Texas, 2003). Today, although homosexuality is commonly viewed as a way of life and domestic partnerships are becoming more accepted, there are still legal battles over what “rights” to give same-sex couples. This example illustrates one of the problems between law and psychology; law’s processes are not always able to “keep up” with the ever-changing norms and values of society.

Methodology: Empiricism versus Intuition Psychology is a science and as such relies on the scientific method and empirical data. Often, studies are designed to examine a very specific issue, and the results are relevant only within certain parameters (Monahan & Walker, 1988). This approach is factually driven and gives little credence to intuition or specific, nonreproducible cases or studies. By and large, the psychological community will not accept any results until they have been established as reliable and consistent, can be replicated by other researchers, and the measures and methods used are demonstrated to have validity. In the legal arena, every case is different and replication of a situation is not possible. For that reason, lawyers and judges must rely on their familiarity with similar cases, personal experience, and their own beliefs regarding the ultimate issue. Although situations vary drastically, it is often important to create a “test” or rule that can be applied to many different sets of facts. Judges create these generalized tests based on a commonsense approach to the situation. For example, the “reasonable care” standard in California dictates that a psychologist has a duty to warn a third party of a threat made by a client within the therapeutic setting (Tarasoff v. Regents of University of California, 1976). When applied to the specific facts of Tarasoff, the reasonable care standard seems straightforward and easy to implement. In actuality, the court never defines reasonable care nor determines what measures need to be taken (see Ewing v. Northridge Hosp. Medical Center, 2004). In most instances, including the Tarasoff example, the “test” is purported to be generally applicable, but is actually tailored to the specifics of the case. This creates an obvious problem; the test set forth by the court appears straightforward, but is

Accessing and Understanding Legal Literature

35

very difficult to apply. To someone with empirical training, it may seem that a single, reliable test could be devised if the commonsense approach was discarded. Unfortunately, because each specific fact pattern is different, a new “test” would need to be generated for every case. In the past, psychologists have attempted to impose empirical methodology on court proceedings, but have been largely ignored. For example, multiple studies on jury behavior and eyewitness reliability have been dismissed as unimportant (LloydBostock, 1988). One belief is that research has been discounted, owing to its limited view of law objectives, for example, by failing to grasp the fundamental point that establishing the truth is not always the main point of a criminal trial (Lloyd-Bostock, 1988; Kovera, Russano & McAuliff, 2002). Additional studies have found that psychologists, even as trained professionals, cannot accurately predict violence or quantify the true risk of a client’s violence toward a third party (Odeh, Zeiss, & Huss, 2006; Wollert, 2006). In fact, Farnham and James (2001) compared the assessment of future dangerousness to forecasting the weather, stating the practice is “accurate over a few days, but impotent to state longer-term outcome with any certainty” (Farnham & James, 2001). Regardless of these findings, lawyers frequently argue for stronger penalties based on “future risk” and judges often incorporate risk assessment into sentencing decisions. By functioning as if risk can be precisely evaluated, psychology’s empirical contribution is disregarded in favor of law’s subjectivity.

Truth: Innovative Thinking versus Stare Decisis Truth is often seen to be absolute. If something is not true, then it must be false. Unfortunately, the legal system does not function with such simplicity, and “truth” is largely an imaginary, situationally dependant construct. In a criminal case, truth is based on what can be proved or disproved by opposing lawyers. If a man is accused of killing his wife, the prosecution pursues their case based on the belief that the man is guilty. His guilt is the prosecution’s “truth.” However, if the defense can find evidence that contradicts the prosecution, then the defense’s truth is that the man is not guilty. After all the evidence has been presented, 12 jurors have the power to determine the legal truth. Although the jury may believe that the man killed his wife, if they determine that the evidence does not prove guilt beyond a reasonable doubt, the legal truth is that the man is not guilty. In the courtroom there are several versions of the truth, but only the legal truth matters. Contradictory definitions of truth also result from the legal system’s reliance on stare decisis (Latin for “let the decision stand”). Reliance on stare decisis means that the rules set forth in past cases have precedence and operate as fact. For example, in Katz v. United States (1967), the court held that the government had intruded on a person’s 4th Amendment right to be free of unreasonable search and seizures if that person had a subjective justifiable expectation of privacy and that the expectation is one that society acknowledges and protects. When future cases involving unreasonable search and seizure are analyzed, the court will use the test expounded in Katz; therefore applying stare decisis. For example, inmates may argue that they should be able to maintain the same level of privacy while incarcerated that they

36

Aaron Miller, Heidi Schrumpf, and Sarah Davis

previously enjoyed in their home. It is up to the court to determine whether or not, according to Katz, the inmates’ subjective expectation is one that society is willing to recognize. The judge will routinely rely on past experience and common sense, rather than research, to address the question. Conversely, a psychologist would not make such a general statement of truth without first having empirical data to support the opinion. Although both legal and psychological approaches rely on evidence to define truth, the types of evidence are different. Legal evidence is anything that supports a position; enough support is equivalent to proof. Once proof has been established, a definitive answer is reached: yes or no, guilty or not guilty. On the other hand, empirical evidence is used only to determine the likelihood that a variable affected an event. In this system truth is not equivalent to proof. Psychologists believe that the truth of any situation is the result of an interaction of several different factors. These factors are ordered according to how influential they were in actually “causing” the event. This methodology leaves room to decide which variables are more significant, but also allows for ambiguity. Within the field of psychology, the aforementioned reality turns on achieving statistical significance at a .05 probability level. For a psychologist to conclude that, in reality, there is or is not an effect, the findings must be reliable and valid. If several factors reach the required level, they are all significant and yet their particular role of cause and effect may remain unknown. Accordingly, the goal is not to prove anything. This ambiguity is acceptable in the psychological world, but not in the legal realm.

Critiques: Psychology in the Courtroom Legal practice and psychological theory often conflict in regard to the utilization of experimental research in court proceedings. Psychologists advocate the value of experimental research in court decisions, but judges doubt the generalizability of psychological studies. For example, a laboratory study that examines the accuracy of child testimony versus the testimony’s perceived reliability may demonstrate factors that are relevant to the specific research question (Ross, Jurden, & Linsday, 2003). Unfortunately, these findings do not easily transfer into a courtroom setting (Tanford & Cox, 1988). A controlled manipulation fails to incorporate many of the pressures and unique variables a child witness would encounter when testifying in an actual trial (Ross et al., 2003; Ruva and Bryant, 2004). Psychologists also promote the courtroom use of available research examining jury decision making (Wells, 1984). Criticisms that target the generalizability of jury research are not limited to the inimitable nature of the trial experience. Selection methods used by psychologists to obtain subjects and the failure of many studies to examine the effects of group interaction are also relevant (Devine, Clayton, Dunford, Seying, & Price, 2001) Justice Rehnquist opined in Lockhart v. McCree (1986) that psychological studies remain largely inapplicable because they use randomly selected people, not real jurors, to apply the law in an actual capital murder case (Lockhart v. McCree, 1986). He further disparaged experiments that do use real jurors since they also do not regularly include jury deliberations, and therefore are of no value in his courtroom.

Accessing and Understanding Legal Literature

37

In addition to his generalizability criticisms, Rehnquist also believed that psychologists frequently fail to reference a sufficient number of studies that directly support their amicus briefs. In Lockhart v. McCree (1986), although the American Psychological Association (APA) submitted 15 studies they purported were related to jury behavior in a capital case, the court found only 6 of the studies to be relevant (Lockhart v. McCree, 1986). The court felt that, because of the limited number of studies and their “tentative and fragmentary” nature, the brief was not persuasive; therefore, it was disregarded (Lockhart v. McCree, 1986, p. 171). As a practical matter, the court’s reluctance to consider significant psychological findings places a substantial limit on the ability of the APA to influence a court decision. The most noteworthy judicial concern regarding psychology’s contribution to legal proceedings is that psychologists do not understand the legal arena or legal research (Kovera & McAuliff, 2000). In the eyes of the court, this lack of familiarity is interpreted as ineffectiveness, allowing the court to easily overlook any contributions. Although the court may cite psychological research when it will enhance its opinion, this same information will be readily discarded if more traditional legal research is available (Bersoff, 1987). In order to acquire and sustain a presence in court, forensic psychologists must improve their legal research skills and write in a way that will be respected by legal professionals. Additionally, psychologists who appear in court as witnesses would do well to become familiar with legal theory, the expectations the court has for the psychologist witness, and most importantly, the relevant laws in their jurisdictions and areas of practice. The rest of this chapter can be used as a practical guide for accessing and understanding legal research and writing. It also provides useful information for conducting psycholegal research.

Legal Research Sources In the past, legal research was a lengthy process conducted within law library stacks and archives. This tradition has been largely subsumed by Internet research and online databases. Although library research is still effective, it requires familiarity with the organizational system utilized by law libraries. A firm grasp of this system is not needed to perform Internet research. However, because legal information is similarly categorized in both book and online form, it is essential to have a broad understanding of legal research classifications.

Online Databases If available, online databases provide an immense amount of information in a userfriendly format. Although research in a law library is still an option, conducting research online is generally much quicker. Many law firms and schools subscribe to either or both the LexisNexis Total Research System® and Westlaw®. Recently, nonlaw graduate programs have begun to offer access to LexisNexis Academic®, which is a truncated version of the full Lexis database (Figure 2.1 and Figure 2.2).

38

Figure 2.1

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Screenshot of LexisNexis search page.

Accessing and Understanding Legal Literature

Figure 2.2

Screenshot of Westlaw search page.

39

40

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Westlaw is an online legal research service that provides quick, easy access to a vast collection of statutes, case law materials, public records, and other legal resources, along with current news articles and business information. Lexis also provides online access to state and federal case law, codes and statutes, court documents, over 3.5 billion public records, and business, legal, and regional news. An overview of how to search these sites is offered later in the chapter. Subscriptions to online databases are very similar to cable television subscriptions; the academic version of Lexis represents the basic thirteen channels, then schools or organizations can add many specific or general services to the basic plan. These additional services are considered individual databases within the larger Lexis or Westlaw database. Although the terminology is somewhat confusing, once the main Lexis or Westlaw database is entered, whatever services are available are usually fairly easy to find. The following sections give a brief explanation of the different resources that may be found in online databases.

Case Law The opinions of previously settled cases are called precedent and are recognized as the primary authority controlling future decisions. Courts may utilize precedent to address a novel question of common law or to interpret a statute. Although precedent set by case law is the most frequently cited source for legal arguments, applicable statutes or regulations are always the strongest argument. Unfortunately, a statute or regulation is frequently not available. In these instances, case law will become the researcher’s most compelling argument. As discussed earlier, it is sometimes possible to find a case that directly pertains to a specific issue, but most contentions are made by comparison. In general, the opinions of the high courts (U. S. Supreme Court, State Supreme Court, Federal and State Appellate Courts) are published, and are citable as precedent. If there is a previous decision that has precedent in a particular court, that court must follow the rules set forth in the previous decision. Although all high court cases are citable, not all court decisions have precedent. Supreme Court cases are recognized as precedent by all lower courts. State Supreme Court decisions are recognized as authority within the state in which the case was decided, but the opinion is merely influential and not binding outside that state. Another state’s court may use the decision to bolster an opinion, it is not obligated to follow the holding. Federal and State Appellate decisions act as precedent only in courts under their authority, meaning only courts within the specific district must follow the decision. Before the advent of the internet, trial court cases were not published, so their holdings were not available. Now, even though trial court cases are often found on Lexis and Westlaw, they have no value as precedent because they are still not officially published. Although every opinion is not uniform, both Lexis and Westlaw usually offer concise summaries of the case history and holding at the beginning of each case. When researching using Lexis, these sections are offset in blue and supply a brief procedural history, overview, and outcome. Westlaw provides a single paragraph that briefly covers the same areas. Lexis also provides a list of core terms that may help the researcher

Accessing and Understanding Legal Literature

Figure 2.3

41

Screenshot of Westlaw Case Depiction.

narrow or expand a search. After the synopsis and before the opinion, both Westlaw and Lexis provide headnotes. In Westlaw, the headnotes are merely an explanation supplied by the database provider, not the actual language of the opinion, and cannot be cited. Although the headnotes cannot be directly utilized, clicking on the bracketed number will take the reader to the actual language of the opinion. Once within the actual opinion, if the bracketed number is clicked, the reader is returned to the headnote. Lexis also supplies headnotes, but the language is pulled directly from the opinion and may be cited (Figure 2.3 and Figure 2.4). Τhe next segment gives the case’s history in the lower courts. This section is labeled subsequent history by Lexis and is located at the beginning of the case. Although Westlaw does not label the section, the information is found immediately before the headnotes. The last two sections are the synopsis and the holding. The synopsis provides a brief summary of the case, and the holding presents a brief description of the court’s decision. Because court opinions are often long-winded and searches return many results, a researcher may start by reading these summary sections to get an idea of whether the case is relevant. If the case is relevant to the researched topic, reading the judgment at the end of the case will give a complete description of the case, including the issues involved and the reasoning behind the verdict.

42

Figure 2.4

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Screenshot of LexixNexis Case Depiction.

Statutes and Codes Statutes are acts of the legislature that set forth laws governing conduct within the scope of the law in order to protect public welfare. Statutes first appear as slip laws, which consist of the basic laws that Congress produces, without any additions. These laws are compiled and bound into “statutes at large” that may be reworked at either the state or federal level. Governors may use line item veto power to amend state

Accessing and Understanding Legal Literature

43

statutes and parse the sections to be enacted. On the other hand, the president does not have a line item veto power, so federal statutes pass on an all-or-nothing basis. As Congress acts on a statute, they can use their power to enact a new section, amend an existing section, or repeal a section. Once this process is completed, statutes are published in the United States Code Congressional and Administrative News (USSCAN), which is a commercial reprinting of the statutes at large. The USSCAN database can be found on both Lexis and Westlaw. Because they are not organized by topic, the statutes at large will be too detailed and tedious for most research. Statutes may be useful if the research requires information regarding the procedural history of the law. In most instances, the United States Code will present the law in a format that is more user-friendly. The United States Code not only organizes the federal statutes by subject matter, but it also incorporates all of the modifications made to a statute as it is examined by Congress. This consolidation negates the need to search through the statutes at large for both the original law and all the subsequent amendments. After the initial classification, the codes are further broken down into titles. Titles separate the code into broad topic areas, allowing a search to be easily focused on the pertinent law. There are two different published versions of the codes. The first, the U.S. Code, contains the precise law without editorial additions to the statutes. Westlaw has created a second, annotated version, the United States Code, Annotated (U.S.C.A.). This version supplies additional explanations of the law. Either the U.S.C. or the U.S.C.A. can be used to cite the law, because the law provided is the same in both. When using the U.S.C.A., it is important to note that the annotations are editorial comments made by Westlaw and cannot be cited as the law. Regulations A regulation is a body of law that is drafted and promulgated by the executive branch of the government. Statutes and codes not only provide the law, but they also grant the executive branch the authority to create administrative agencies. These agencies make regulations that govern how the statute will be enforced or applied. Thus, a regulation is the specific instructions regarding a piece of legislation and its application. This process occurs at both the state and federal levels to help implement laws. Legislative History Legislative history is useful because it shows evidence of what the legislative intent was for a specific law. For a legal practitioner or forensic evaluator, this history may be irrelevant because the language of a statute is supposed to be unambiguous, and an assessment must conform to the current psycholegal standard. Conversely, the goal of a forensic psychologist may be to sway the court with an amicus brief or to lobby for changes in current law. In these situations, knowing the position of the legislature and what ideas they have already considered would be extremely helpful. The first step is to look at committee reports and committee hearings. If more information is

44

Aaron Miller, Heidi Schrumpf, and Sarah Davis

needed, look at Congressional debates and the different versions of each statute to see how the laws have changed, what was retained, and what was omitted. Committee reports can be researched on the Westlaw database USCCAN which covers full-text committee reports from 1948 to the present. Because USCCAN is difficult to use, it may be easier to find the relevant statute and then access the editor’s notes under the legislative history and use the links provided.

Secondary Sources Secondary sources are designed to give the practitioner a well-organized overview of a specific issue within an area of substantive law. Secondary sources are a great place to start research. However, remember that these are not the law; rather, they are editorialized statements of the law. Secondary sources range from encyclopedias, to practice guides, forms, law reviews and legal journals. The most important sources are national in scope, but many states (such as California) have state-specific encyclopedias. They all basically work in a similar manner. An initial good natural language search on either Lexis or Westlaw will produce many documents relating to a specific issue. Remember, secondary sources should only be used to obtain a general idea of an issue. Once a relevant document is found, the table of contents feature can be used to peruse information related to the issue. In this manner, the subsequent search may be expanded into previously unconsidered areas and topics.

Law Reviews and Journals Law reviews and journals are student-run law school organizations whose primary purpose is to publish journals of legal scholarship. Some law journals focus on specific areas of law, and most publish articles by outside authors (professors, judges, and practitioners), as well as short articles (called notes or “comments”) by the member students. These notes and comments are of publishable quality and can be used and cited as any other journal article. Overall, law review articles can be extremely helpful, but caution must be exercised because case law may change rapidly. For example, a law review article published in 2001 may highlight that a handful of states still have antisodomy laws targeting homosexuals and emphasize the need for protection of privacy. As stated earlier, the Supreme Court prohibited antisodomy statutes in 2003. Although the historical information in the 2001 article may be useful, the conclusion is outdated and inaccurate. It is important not only to conduct thorough research utilizing many sources, but to consider the legal position at the time the article was written. Legal Newspapers Both Lexis and Westlaw have databases for legal newspapers and newsletters. If access to Lexis or Westlaw is not available, much the same information may be found on a free Internet access source such as www.FindLaw.com® or

Accessing and Understanding Legal Literature

45

an attorney’s Web page. Legal newspapers and newsletters are a good source of the newest developments in an area of law, and a researcher usually will be able to find arguments for and against changes to laws. Some of the newspapers will also state when, where, and how you can get more information and give comments on the law. Practice Guides Practice manuals and form books are designed to give the practitioner a well-organized overview of the substantive and procedural issues for a wide variety of causes of action. They frequently will be state specific and may include sample documents for pleadings and motions and invaluable checklists. On Westlaw, practice guides can be found by clicking on the Directory tab at the top of the homepage. On Lexis, click the legal tab and then on secondary sources. Practice guides can be very useful to familiarize oneself with the court procedure of a specific state or to find lists that delineate exactly what is needed in a certain situation. For example, under the “custody” subheading in a state civil practice guide, a researcher will find definitions of key terms, statutes regarding client-patient privilege, guidelines for waiver of privilege for the good of the child, and the qualifications for appearing as an expert witness in a custody hearing. Practice guides are very concrete and do not offer any elaboration beyond the basics. They are excellent as introductions to areas of law in which the forensic evaluator may wish to practice.

Legal Research for Forensic Psychology When learning about a psycholegal construct, that is, a concept that has both psychological and legal aspects, it is always a good idea to start by using a secondary source. Two main secondary sources are practice guides and digests. These resources can be found in law libraries and on Lexis or Westlaw. In order to utilize these tools on either Lexis or Westlaw, limit the search results by selecting only the desired secondary source databases. A practice guide explains what steps need to be taken, whereas a digest offers a quick overview of the law in that area and highlights the main cases. For example, you may be conducting research on the shortened life span of inmates, which would traditionally be a criminal law topic. In this case, something very useful, such as a life expectancy table, will most likely be found in a personal injury or civil law database. A search of secondary sources may cover many different law categories. Do not be intimidated. Often, the best way to find what you need is to conduct a broad search encompassing many areas of law. Remember that most legal arguments are not done with cases on point; rather, many cases are usually aggregated to show parallels. These supporting cases may be found in entirely different areas of law. If researching with a basic service such as the academic version of Lexis, the only secondary sources available are Legal News and Law Reviews. In this case, law review articles become the most valuable secondary source. For instance, at the time of this writing, simply entering eyewitness testimony into the keyword field returned 69 journal entries published within the last 6 months. These results can be viewed with varying degrees of completeness. For example, viewing the Document List will only supply the title, the journal, and the author. The Expanded List will also show

46

Aaron Miller, Heidi Schrumpf, and Sarah Davis

shortened text in which the keyword appears, and KWIC (key word in context) will supply the paragraph in which the keyword was referenced. At this stage, the purpose of the search is to find law review articles that are interesting and discuss issues relevant to a broad issue. Once the topic has been narrowed down, secondary sources should be revisited to utilize alternate keywords and exhaust the search possibilities. When beginning a research task, first determine what it is you are really looking for and why it is important to the project. In many situations, official sites require subscriptions, are expensive and may not be necessary because of free Web sites such as FindLaw.com. However, it is important to remember that any information found on an uncontrolled site (any free online site) must always be verified with either a hardcopy of the case or an official cite such as Westlaw or Lexis. As previously mentioned, subscription services vary, and several services exist within the databases. Once the main Lexis or Westlaw database has been entered, it is a good idea to click on the information buttons provided for each internal database. This function allows the researcher to see what material is covered in the database and how it is presented before conducting a search. Don’t be afraid to spend a little time going through the lists of databases before selecting one. For example, if you need to know about parental rights, a general search through case law will be time consuming and not very helpful. A more efficient option is to scan the databases for a digest that contains an overview of the topic. Again, if researching on the Academic database, once Legal Research has been selected, a list of all available services is supplied with a short overview of what can be found within the database. Once a database is selected, the Academic version offers a Tips section that helps the researcher further gauge if that particular database will be most useful for the search. An additional consideration is whether the research is limited to a particular state. If researching parental rights only in California, it is quicker and easier to use a California-specific database within either Lexis or Westlaw. By narrowing results to the state of interest, extraneous results and nonapplicable information is weeded out. Once a database is selected, it is time to search for relevant case law. Detailed methods of searching both Westlaw and Lexis are found in Table 2.1 through Table 2.3. After finding a pertinent case, be sure to use Westlaw’s Keycite® or Lexis’ Shephards®

TABLE 2.1

Guide to Legal Research Using Lexis and Westlaw: Finding a Document

Lexis

Westlaw

Sign on and click the red bar that says Logon to Total Research System.

Sign on and click Research Now on Westlaw

If you know the citation to the document, select Get a Document, enter the citation and the citation, and click Go.

If you know the citation to the document, select Find by Citation, enter and click Go.

If you know the name of a party, click on Find by If you know the name of a party, click on Find, Party, enter either or both party names, and click Go. click on Find by Party, enter the information, and click Go. If you need to search for a document, enter a relevant database, enter the search terms, and click Search.

If you need to search for a document, enter a relevant database, enter the search terms, and click Search.

Accessing and Understanding Legal Literature

47

TABLE 2.2 Guide to Legal Research Using Lexis and Westlaw: Terms and Connectors Lexis

Westlaw

Enter a database and click on Terms and Connectors (this will usually be the default)

Enter a database and click on Terms and Connectors (usually the default).

Enter key terms with connectors in between the terms and terms of art in parentheses.

Enter search terms with connectors and terms of art in quotations.

Spaces indicate AND

Spaces equal OR

/p: in the same paragraph

/p: in the same paragraph

/s: in the same sentence

/s: within the same sentence

!: root expander

!: root expander

/p and n/ cannot be used in the same search

/p and /n may be used in the same search

/n is within n words of the first entered word

/n is within n words

(Example: child /4 advocacy will give all results where the words child and advocacy appear within 4 words of each other. No automatic search for singular version of a plural search term

Automatic search for plurals: enter the singular version of the word or a root word with expander (Ex: psych!). The converse is not true. If a plural word is entered, the singular version will not be retrieved

function. It is important to note that once a case is published, the actual opinion is never directly modified. Keycite and Shephards are designed to track subsequent usage of the case law and to verify that the law has not been overturned. The Keycite and Shephards functions also supply the names of cases that have cited that particular case and confirms whether those cases are still good law. For example, if the original case is Tarasoff v. Regents of University of California (1976), Keyciting (if researching in Westlaw) produces a list of additional cases and their holdings in relation to the original case. Now you have a list of cases that might match your fact pattern and help you determine which arguments work and which ones do not work.

TABLE 2.3 Guide to Legal Research using Lexis and Westlaw. Natural Language Search Lexis

Westlaw

Enter a database and click on Natural Language.

Enter a database and click on Natural Language.

Enter an issue statement.

Enter an issue statement.

Go through the statement and add different endings for relevant words because Lexis will not do this automatically. Example: run, runner, running, runs.

Westlaw will automatically search for additional endings for words. Example: entering run will automatically search for runs, runner, running.

Limit the search by placing any terms of art in quotations. Example: “actuarial risk assessment.”

Limit your search by clicking on Restrictors: Example: Date (limits the search to specific date or ranges); Thesaurus (adds synonyms).

48

Aaron Miller, Heidi Schrumpf, and Sarah Davis

General Search Strategies While searching Lexis and Westlaw, there are a few general guidelines researchers need to keep in mind. First, if the specific case or statute required is unknown, it makes sense to start with a broad search. Although it may seem impossible to broaden a search when little is known about the topic, it is often fairly easy (see Table 2.1). For example, if you are not getting results from your search, try adding synonyms or altering the terms and connectors (see Table 2.2 for terms and connectors). Westlaw and Lexis can only find exactly what the researcher asks for. On the other hand, a search may return so many results as to become unmanageable. In those instances, consider whether the search criteria contain terms of art. Terms of art are certain phrases or words that have a very specific meaning when used together. For instance, searching for cases by entering chemical castration used as a defense will turn up different results from entering chemical castration defense. To limit results, place unique terms and terms of art in parentheses (chemical castration defense).

Westlaw and Lexis (Law Version) The two main methods for searching on either Lexis or Westlaw are (a) a terms and connectors search and (b) a natural language search. Before indicating a search preference and entering terminology, it is important to understand how each method works. In general, terms and connectors are used either to limit a broad search or as a way to conduct a more precise initial search (see Table 2.2). This search strategy is a very literal one. When using terms and connectors, the researcher controls not only the words sought, but also their arrangement within the document. Because the search is so exact, the researcher will only get the results he or she specifically asks for, regardless of their relevance. For example, if you are searching for cases to explain the law regarding a therapist’s breach of confidentiality, a good strategy would be to search for therapist and breach of confidentiality within the same sentence (therapist/s breach of confidentiality). This search may return pertinent documents, but it will also include cases on unrelated topics if those terms appear in the same sentence. When perusing the results of a terms and connectors search, note that they appear in reverse chronological order with the highest court cases appearing first (Supreme Court cases, then Appellate cases, and finally district court cases). Therefore, the district court cases appearing at the end of the results list may not be applicable in all jurisdictions, regardless of their relevance. The second way to investigate a topic is by conducting a natural language search (see Table 2.3). This technique is a good option for finding all possible information on a subject that is largely unfamiliar to the researcher. In this case, enter search terms as an issue statement, and the cases that use those words repeatedly will come up. An issue statement is most commonly in question format and will parallel the main research inquiry. For example, if you are researching the rights of foster parents to adopt, an appropriate issue statement would be, what rights do foster parents have to adopt. From here the search can be narrowed with a terms and connectors search or by altering the phrases of the natural language search. Taking out important

Accessing and Understanding Legal Literature

49

Figure 2.5 Screenshot of LexixNexis Academic® home page.

terms will expand research while putting in more key terms will limit the search. For example, liability for drug manufacturers will yield more cases than strict liability for pharmaceutical manufacturers. Before choosing which search strategy is best for an individual project, it is important to have a basic understanding of the steps involved in legal research. Lexis (Academic Version) Although the academic version of Lexis does not include the full range of databases, it does include the main Lexis case law database, as well as the law review, statutes, international law, patent databases, and a scaled-down version of the Shephard’s Citation Service®. Access to the academic version is usually password-protected through the University, so an individual password and registration is not necessary (see Figure 2.5). Once the service is accessed, a variety of options appear. Most frequently, the home page includes an option to search legal news databases, the ability to find a case using either the case citation or party names, and an option to conduct a company search. Although it seems intuitive, it is important to note that any search entered in the Quick News Search box will only search legal news sources. In order to search case law, the researcher needs to make sure the legal research page has been opened (usually found on the left-hand side of the home page). At this time, the legal researcher will see all the databases available on the academic version of Lexis (see Table 2.4 and Figure 2.6). This version of Lexis was designed in such a way that specialized training should not be needed to maximize searching abilities. To that end, each database is presented, with a short description, to allow the researcher to choose a specific database before any search terms are entered. Once the selection is made, Lexis offers tips to aid in further specifying a search. As mentioned before, this format is very user-friendly, but caution needs to be taken to prevent narrowing a search too much.

50

TABLE 2.4

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Guide to Legal Research Using LexisNexis Academic® Version Finding a Document:

Sign on through academic provider. If you know the citation of the document, enter the citation in the box and click Search. If you know the name of the party, enter the name(s) in the box and click Search. If you need to search for a document, click the legal research tab, select a database, enter search terms, and click Search. Natural Language Search: The academic version of Lexis does not offer natural language search. Terms and Connectors: Enter a database and enter search terms; a Terms Connectors (Boolean) search is the default. Enter search terms with connectors between terms; terms of art should be in parentheses. Spaces indicate AND. w/p: in the same paragraph w/s: in the same sentence !: root expander w/p and w/n cannot be used in the same search w/n: within n words Use wildcards (! and *) to indicate alternate word endings. Example: psych! will return all words with the root psych; psychologist* will return both the original word and the plural.

For example, if searching for a federal case, the first step is to enter the legal research area and then choose the federal case law option. At this point, the researcher will be prompted to enter his or her search terms and select a court. In order to search all available federal case law, the same terms will need to be searched within each of the courts that may contain applicable cases. This usually entails searching within the Supreme Court cases, Court of Appeals cases, and District Court cases. Suppose the researcher is looking for recent cases regarding the issue of competence. Competence is the search term, Supreme Court Cases is the court selection, and the cases are limited to the last 6 months. At the time this chapter was written, this search only returned three cases. When the court selection is changed to Court of Appeals, 122 cases were found. By adjusting the specific court requirement, the search is broadened. When searching on the academic version, there is also an option to search the Area of Law by Topic. This database is very broad and is not offered on the full-length version of either Lexis or Westlaw. Searching by area of law is useful if the researcher has no prior knowledge of the subject or what cases may apply. Again, Lexis offers helpful tips and brief descriptions of the various topic areas. This type of broad search may be especially valuable for psychologists researching either family law or health law, because both are presented as separate topic areas so that results can be easily limited to cases within the specific field. As with any other technique, to ensure a thorough search it is a good idea to utilize other databases once knowledge of the topic is gained. The final step in research is to check the status of the case law by using Shephard’s. The academic version of the Shephard’s Citation Service® is limited and only available

Accessing and Understanding Legal Literature

Figure 2.6

51

Screenshot of LexixNexis Academic® search page.

in regard to Supreme Court cases. The academic version of Shephard’s still serves an important function by allowing a researcher to check whether a case is still good law. “Good” case law has not had its value as precedent negatively affected by either a later court decision or legislative action. Shephardizing a case also supplies a comprehensive listing of additional cases and other authorities that have cited the primary case (including annotations and law review articles). Referencing Legal Materials The legal community places great importance on the citation of references. Many guidelines for referencing legal materials within APA format can be found in the Publication Manual of the American Psychological Association: Fifth Edition (2001). When the APA manual does not indicate a preferred method for referencing or citing a legal work, then The Bluebook: A Uniform System of Citation (2005) is used. The Bluebook is geared toward a level of complexity that is only necessary for legal scholars and law review articles. In other words, its scope extends far beyond casual usage, and will probably be confusing for first-time users. The latest edition of the Bluebook contains a separate section, called the Bluepages, which provides easy-to-comprehend

52

TABLE 2.5

Aaron Miller, Heidi Schrumpf, and Sarah Davis

Guide to Referencing Legal Sources

Type of Citation

Description and Example

Court Case U.S. Supreme Court

In-text: (Lindh v. Murphy, 1997) or Lindh v. Murphy (1997) NOTE: name of the case, italicized; year of decision Reference list: Lindh v. Murphy, 521 U.S. 320 (1997). NOTE: Volume 521, U. S. Supreme Court Reports, page 320, year decided

Appellate Court

In-text: (Durflinger v. Artiles, 1984) or Durflinger v. Artiles (1984) NOTE: name of the case, italicized; year of decision Reference list: Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984). NOTE: Volume 727, Federal Reporter, second series page 888, 10th Circuit, year decided

U.S. Code and

In-text: National Environmental Policy Act (1969)

U.S. Statutes at Large

NOTE: Give the popular or official name of the act and the year Reference list: National Environmental Policy Act of 1969, 42 U.S.C. §4332 (2000). NOTE: Title 42, U.S. Code, section 4332, date of code editiona

Code of Federal

In-text: (Protection of Human Subjects, 2004)

Regulations

Reference list: Protection of Human Subjects, 34 C.F.R. § 97 (2004). NOTE: Regulation is in Title 34, part 97b

U.S. Constitution

In-text: (U.S. Constitution) Reference list: U.S. Constitution, Art. I, § 9, cl. 2. NOTE: Article I, section 9, clause 2. Not addressed in the APA manual; example based on general guidelines

Law Journals/Reviews

In-text: Reference list: Gwynneth F. Smith, Ewing v. Goldstein and the Therapist’s Duty to Warn in California, 36 Golden Gate U.L. Rev. 293 (2006). NOTE: Volume 36, Golden Gate University Law Review, page 293, date of publication

a

If the law is currently in force, cite it to the U.S. Code, rather than the historical session law compilation, U.S. Statutes at Large. bThe APA manual erroneously calls the first number a “volume” instead of a “title” number, and the second number a “section”, using the symbol for a section. The second number is a “part” number. Follow the APA format unless it is an official legal document.

guidance for more everyday citation needs. Furthermore, the most commonly used references and citations are supplied in Table 2.5). Conclusion As the interplay between the fields of psychology and law increases, it is imperative that psychologists operating within the legal realm have the tools to educate themselves regarding legal practice. Although it may not be necessary to have an intimate understanding of legal process and nuance, an effective forensic evaluator must be

Accessing and Understanding Legal Literature

53

an informed consumer of the law. Some situations may only require a familiarity with certain legal principles, whereas others will call for more in-depth research and understanding. The most influential forensic psychologists are able to merge relevant legal research with empirical findings to enhance credibility and stimulate significant change. This chapter is only meant to underline the importance of understanding the theoretical differences between law and psychology, and to highlight the necessity of sound legal research. In order to truly excel in the forensic world, these principles must be enhanced and developed within one’s specific area of interest. References Bersoff, D.N. (1987). Social science data and the Supreme Court: Lockhart as a case in point. American Psychologist, 42(1), 52–58. Devine, D.J., Clayton, L.D., Dunford, B.B., Seying, R., & Pryce, J. (2001). Jury decision making: 45 years of empirical research on deliberating groups. Psychology, Public Policy, and Law, 7(3), 622–727. Ewing, C.P. (Ed.). (1985). Introduction. Psychology, Psychiatry, and the Law: A clinical and forensic handbook. Sarasota, Florida: Professional Resource Exchange. Ewing v. Northridge Hosp. Medical Center, 120 Cal.App.4th 1289 (2004). Haney, C. (1980). Psychology and legal change: On the limits of factual jurisprudence. Law and Human Behavior, 4(3), 147–199. Harvard Law Review. (2005). The bluebook: a uniform system of citation (18th ed.). Katz v. United States, 389 U.S. 347 (1967). Kojder, A. (1973). Law as an instrument of change. Studia Socjologiczne, 2(49), 145–160. Farnham, F., & James, D. (2001). ‘Dangerousness’ and dangerous laws. Lancet, 358, 1926. Finkel, N.J., Fulero, S.M., Haugaard, J.J., Levine, M., & Small, M.A. (2001). Everyday life and legal values: A concept paper. Law and Human Behavior, 25(2), 109–123. Franck, I. (1982). Psychology as a science: Resolving the idiographic-nomothetic controversy. Journal for the Theory of Social Behaviour, 12(1), 1–20. Kovera, M., & McAuliff, B. (2000). The effects of peer review and evidence quality on judge evaluations of psychological science: Are judges effective gatekeepers? Journal of Applied Psychology, 85(4), 574–586. Kovera, M., Russao, M., & McAuliff, B. (2002). Assessment of the common sense psychology underlying Daubert: Legal decision makers’ abilities to evaluate expert evidence in hostile work environment cases. Psychology, Public Policy and Law, 8(2), 180–200. Lawrence v. Texas, 539 U.S. 558 (2003). LexisNexis Academic. Retrieved on October 10, 2006, from http://web.lexis-nexis.com/ universe (Figure 2.5). LexisNexis Academic Basic Legal Research. Retrieved on October 10, 2006, from http://web. lexisnexis.com/universe/form/academic/legalresearch.html?_m=35ae26cb19ac6f b87d60 4c86c8b7094d&wchp=dGLbVzbzSkVb&_md5=f3f54d1689e9c436d603ca5c019416a5 (Figure 2.6). LexisNexis for Law Schools. Retrieved on October 10, 2006, from www.lexisnexis.com/ lawschool/default.asp (Figure 2.1). LexisNexis for Law Schools. Retrieved on October 10, 2006, from http://w3.lexis.com/ lawschoolreg/xlinklogin04.asp?key=527980cac061ec479fcdae5d767d5b65&search= name%28Tarasoff%29&autosubmit=yes&interface=1&tocdisplay=off&topframe=on& com=2&powernav=on&ORIGINATION_CODE=00090&pp=002&source=6496name %28Tarasoff%29 (Figure 2.4).

54

Aaron Miller, Heidi Schrumpf, and Sarah Davis

LexisNexis Total Research System. Retrieved October 10, 2006, from http://www.lexisnexis. com/. Lloyd-Bostock, S. (1988). The benefits of legal psychology: Possibilities, practice, and dilemmas. British Journal of Psychology, 79, 417–440. Lockhart v. McCree, 476 U.S. 162 (1986). Melton, G.B. (1987). Bringing psychology to the legal system: Opportunities, obstacles, and efficacy. American Psychologist, 42(5), 488–495. Monahan, J., & Walker, L. (1988). Social science research in law: A new paradigm. American Psychologist, 43(6), 465–472. Odeh, M.S., Zeiss, R.A., & Huss, M.T. (2006). Cues they use: Clinicians’ endorsement of risk cues in predictions of dangerousness. Behavioral Sciences and the Law, 24, 147–156. Pickett, J.P. (Ed.). (2005). The American Heritage ® Dictionary of the English Language (4th ed.). Boston, MA: Houghton Mifflin Company. Publication manual of the American Psychological Association: Fifth Edition (2001). Washington, DC: American Psychological Association. Ross, D., Jurden, F., & Linsday, R. (2003). Replications and limitations of a two-factor model of child witness credibility. Journal of Applied Social Psychology, 33(2), 418–430. Ruva, C.L., & Bryant, J.B. (2004). The impact of age, speech style, and question form on perceptions of witness credibility and trial outcome. Journal of Applied Social Psychology, 34(9), 1919–1944. Tanford, S., & Cox, M. (1988). The effects of impeachment evidence and limiting instructions on individual and group decision making. Law and Human Behavior, 12(4), 477–497. Tarasoff v. Regents of University of California, 17 Cal.3d 425 (1976). Thorne, F.C. (1978). General postulates about values [Editorial opinion]. Journal of Clinical Psychology, 34(1), 251–256. Understanding LexisNexis™: Developing expertise in web-based legal research on the LexisNexis Total Research System™. (2003). Reed Elsevier. Wells, G.L. (1984). Experimental psychology and the courtroom. Behavioral Sciences & the Law, 2(4), 363–373. Westlaw. Retrieved October 10, 2006, from http://web2.westlaw.com/signon/default.wl?fn= %5Ftop&newdoor=true&rp=%2Fsignon%2Fdefault%2Ewl&rs=WLW6%2E09&vr=2% 2E0. Westlaw Research Guide®. (2003) West by Thompson. Westlaw Law School. Retrieved October 10, 2006, from http://web2.westlaw.com/welcome /LawSchoolPractitioner/default.wl?MT=LawSchoolPractitioner&rs=LAWS2%2E0&vr =2%2E0 (Figure 2.2). Westlaw Law School. Retrieved October 10, 2006, from http://web2.westlaw.com/welcome/ LawSchoolPractitioner/default.wl?FN=%5Ftop&MT=LawSchoolPractitioner&rs=LAW S2%2E0&strRecreate=no&sv=Split&vr=2%2E0 (Figure 2.3). Wollert, R. (2006). Low base rates limit expert certainty when current actuarials are used to identify sexually violent predators: An application of Bayes’s Theorem. Psychology, Public Policy, and Law, 12(1), 56–85. Wrightsman, L.S. (2001). Forensic Psychology. Belmont, CA: Wadsworth /Thomson Learning. Wrightsman, L.S., Nietzel, M.T., & Fortune, W.H. (1999). Psychology & the legal system (4th ed.). Belmont, CA: Thomson Brooks/Cole Publishing.

3 Ethical Issues in Forensic Psychology Mary A. Connell

Introduction Psychologists working in all settings strive to uphold general principles of ethical conduct. The American Psychological Association has set forth, in its Ethical Principles of Psychologist and Code of Conduct (hereafter called the APA Ethics Code, American Psychological Association 2002), the aspirational principles of psychologists. Psychologists are committed to the application of psychological knowledge and research to improve the situations of individuals, organizations, and society. The APA Code voiced the principle that psychologists respect the civil rights of others and strive to practice in a way reflective of the principles of beneficence and nonmalfeasance, fidelity and responsibility, integrity, justice, and respect for people’s rights. Similarly, the Canadian Code of Ethics for Psychologists, 3rd Edition (hereafter called the CPA Code of Ethics, Canadian Psychological Association, 2000) identified four aspirational principles, including respect for the dignity of the person, responsible caring, integrity in relationships, and responsibility to society. In adhering to principles of beneficence and nonmalfeasance or responsible caring, psychologists attempt not only to avoid harming others, but also to benefit those with whom they work. Psychologists who work in the forensic arena, however, often provide services that, from the perspective of the examinee, may do harm or at least potentially thwart aims. For example, the forensic examination may contribute to the court’s finding that a defense of insanity fails, or that a lengthy sentence is imposed, or that a defendant’s claim of mental retardation is not supported. The consequences for the defendant may be dire—in the case of a capital offender unsuccessfully seeking to establish the existence of mental retardation as a mitigating factor, the consequence may be a sentence of death rather than life in prison. For the litigant in a family court matter, the forensic examination may result, at least indirectly, in the loss of a parent’s contact with the child. How, in each of those cases, could the forensic psychologist assert that the principles of beneficence and nonmalfeasance were upheld? In seeking to safeguard not only the welfare and rights of those with whom they interact professionally, but also other affected persons, forensic psychologists demonstrate loyalty to the system of justice within which they work. By doing their own 55

56

Mary A. Connell

work with impeccable honesty and integrity, they safeguard justice, to the benefit of members of society. The client of the forensic psychologist is the court, or more generally, the system of justice for the society in which the psychologist works. The benefits from the work of forensic psychologists flow, ultimately, to the court or the justice system, although the examinee is accorded respect and consideration. The practice of forensic psychology is unique in many respects, and the very qualities that distinguish it also raise particular ethical challenges. Forensic psychologists work with “involuntary” examinees. There is limited or no confidentiality afforded examinees, and their nonvoluntary participation may result in exposure of personal and sensitive information. The population of forensic examinees includes many vulnerable people, such as children or impaired adults, who lack the capacity to make independent judgments. Because of these unique aspects of their work, forensic practitioners regularly face situations in which they must be especially attuned to potential ethical risks. Because some ethical issues arise regularly in forensic work, it is possible to anticipate them and to develop plans for managing them. This ensures that the work proceeds as it should, with respect for the rights and needs of all involved and with an end product that is helpful to the court. Even with careful planning, the psychologist may encounter novel and complex circumstances in which competing tensions exist and the “right thing to do” is not easily identified. In this chapter, a model for decision making in the face of these unanticipated ethical challenges will be described (Bush, Connell, & Denney, 2006), followed by an exploration of the ethical contours often encountered in the conduct of forensic assessment practice. An eight-step model for ethical decision making has been advanced by Bush, Connell, and Denney (2006): 1. Identify the problem: There are times when a proposed course of action is clearly appropriate and ethical, and times when matters are not so clear. Some professional activities are ambiguous or present complexities that must be untangled before the best course of action becomes apparent. There is often a wide range of potentially appropriate courses of action. Further, the matter may involve distinct ethical, legal, moral, and professional imperatives. A request made of the forensic psychologist, or a course of action considered, may be legally permitted but ethically questionable. Consider, for example, the court-appointed neutral evaluator meeting with one attorney in the absence of the other at the outset of a case. Although this may be legally permissible, it may be argued that it is ethically problematic because it gives one party the advantage of providing an unchallenged and self-serving introduction to the case. The contours of legal, ethical, moral, and professional perspectives require careful consideration, separately and together, to illuminate the full range of considerations. 2. Consider the significance of the context and setting: A situation may call for one course of action in some settings, and a diametrically different course in another setting. Procedural rules in a specific setting may dictate how reports are constructed, for example, and may specifically limit the kinds of information that will be included. The social history information often included in a report of examination may be considered inappropriate in, for example, reports prepared in some fitness-for-duty examination contexts, because that information is not central to the issue of concern to the employer, and its inclusion might be considered an unwarranted invasion of the examinee’s privacy. Psychologists may be obligated, in one respect or another, to a number of entities at once including, for example, the referral

Ethical Issues in Forensic Psychology

source, the examinee, the guardian of the examinee, the employing institution, the profession of psychology, the trier of fact, the court, the legal system, and society at large. Sometimes these parties overlap, and in other situations they may be distinct. Sometimes their interests are parallel and at other times at cross-purposes. The demands or expectations placed on the psychologist by each of these potential “masters” must be considered. 3. Identify and utilize ethical and legal resources: There are a number of resources available to help the forensic psychologist sort out the potential ethical issues and best course of action. The APA Ethics Code (American Psychological Association, 2002) and the CPA Code of Ethics (Canadian Psychological Association, 2000) establish the principles and standards that guide psychologists in practice, and the standards established therein have enforcement mechanisms to ensure compliance. The state or provincial rules of practice for psychologists are codified and have an enforcement mechanism as well. State and federal laws may also govern aspects of psychological service provision. The Specialty Guidelines for Forensic Psychologists (hereafter called the SGFP, Committee on Ethical Guidelines for Forensic Psychologists, 1991) offer guidelines to educate and assist the forensic practitioner, and are as such aspirational rather than mandated. Other useful guidelines and position papers (“white papers” or “best-practice” papers) are issued by organizations including the American Psychological Association, the Canadian Psychological Association, other organizations of interest to psychologists practicing in various specialties, and the organizations of allied professions. Additionally, there exist many published resources that can assist the forensic psychologist who is anticipating or experiencing ethical challenges. Books and journal articles, both those specifically addressing professional ethics and those amplifying best practices in the field, offer substantial guidance. Lastly, consultation with colleagues is an invaluable resource, both in gaining perspective on a specific ethical issue and in generally raising awareness of case-specific and general forensic practice issues that may otherwise escape the forensic psychologist’s awareness. 4. Consider personal beliefs and values: Forensic psychologists are no different from others in that they individually hold beliefs, values, and moral positions on the issues that arise in forensic practice. Similarly to all psychologists, they have a responsibility to evaluate the degree to which those personal beliefs or positions may bias them in their work. It is often difficult to anticipate the potential impact that one’s values and biases may have on professional and ethical decision making. When working in an area that is particularly laden with special significance to the psychologist, it is important to find ways to correct for the insidious pull of personal biases on professional behavior. If it is not possible to negotiate the terrain in a way that reflects sound, fair, and even-handed professional behavior, the psychologist may have a duty to withdraw from work in that area of practice, particularly work that involves providing input or opinion to the courts. There, objectivity is an absolute requirement, whereas in some other areas, advocacy for a particular moral or values perspective may be acceptable. For example, the psychologist who is strongly against the death penalty may be able to work in some capacity, such as with an advocacy organization, but should refrain from conducting assessments and offering opinions to the court regarding the factors in a specific case that argue for a lesser sentence than death. By knowing and anticipating the powerful effects of personal biases and beliefs, it is possible to find ways to attenuate their negative effects in forensic practice. 5. Develop possible solutions to the problem: As the psychologist evaluates an arising ethical dilemma and seeks a solution, conflicting forces may be at play. The psychologist’s

57

58

Mary A. Connell

legal counsel or insurance representative may view the issue from a risk-management perspective. The psychologist may have a personal inclination to try to remedy or set right the potential ethical wrong. In the face of these conflicting tensions, the psychologist may quickly arrive at an impasse. Generating a list of possible solutions can be a helpful process. The psychologist may specifically focus on the significance of the context, information obtained from available resources, and personal beliefs and values, and then integrate the data garnered from these factors or sources to generate the list of potential courses of action. Sometimes, what emerges may be a clear solution, whereas in more complex situations with competing tensions, a number of potential solutions may emerge. 6. Consider the potential consequences of various solutions: As the psychologist creates a list of potential courses of action to resolve the ethical dilemma, the likely benefits and consequences of each action can be considered. The timing of the action may be critical, in light of the potential ramifications, and should be carefully considered. Some situations may call for delaying action until a later time, after the case has been heard in court, for example. Other ethical dilemmas demand more immediate action. When the action is to be delayed, it is nevertheless important to document the nature of the dilemma, the efforts taken to develop a plan of action, the actual plan to be implemented, and the reasons for the delay, along with a time line for implementation. 7. Choose and implement a course of action: When the list of possible solutions to the ethical dilemma has been generated, the psychologist must select and implement the most appropriate course of action. In the careful consideration of possible positive and negative consequences, the right course of action may become apparent. When there is still ambiguity, the psychologist may choose to pursue the highest ethical option available. The chosen action may not represent a perfect solution—in situations where there are conflicting interests at stake, a perfect resolution may be unavailable. Nevertheless, the psychologist must strive to make the best possible decision to address the interests of those who will be affected and to whom an obligation is owed, to protect the interests of vulnerable individuals, to promote the interests of society, and to exercise integrity in carrying out the action. 8. Assess the outcome and implement changes as needed: When the psychologist has anticipated or faced an ethical dilemma and has engaged in a methodical search for resolution, the process should be carefully documented. That documentation may prove invaluable in later explaining the action taken and the rationale for it. The final step in the process is to assess the outcome and consider whether further action is needed. The experience may be viewed as a learning experience; perhaps a different approach might have been more effective. The conundrum may have illuminated an inherent set of tensions between interested persons or agents, or between the law and professional ethics. This newly gained perspective may call for further action to reduce likelihood of recurrence. For example, the record-keeping policies of an institution may differ from the psychologist’s professional ethical obligations; working out a solution on one case when the difference first becomes known may be satisfactory for that case but until there is a more global resolution, the dilemma is likely to recur.

This model may provide the psychologist with a blueprint for resolving particularly complex ethical dilemmas. Some potential dilemmas can be avoided by anticipating them and adopting practices that protect against their occurrence. The remainder

Ethical Issues in Forensic Psychology

59

of this chapter will be devoted to exploring the circumstances that, for forensic psychologists, may call for special consideration in developing a professional practice. Although the principles of practice discussed in this chapter are important to psychologists in general practice and to forensic psychologists in various forms of service delivery, for the purposes of this book the principles will be considered in light of their implications specifically for forensic assessment. Forensic Practice Issues and their Related Ethical Contours The Referral The retaining party–examiner relationship. The relationship between the retaining party and the examiner is clarified from the outset (APA Ethics Code, Principle B, Fidelity and Responsibility). This clarification ensures that the examiner can competently and ethically respond to the request for services and reduces the likelihood of misunderstanding roles or purposes in the assessment (Melton, Petrila, Poythress, & Slobogin, 1997). When identifying one’s role, it is essential to grasp the psycholegal question in play (Heilbrun, 2001). The retaining party is generally the forensic psychologist’s client, and it is first to the client that there is an obligation to provide sufficient information to allow the client to decide whether to retain the psychologist for the role being considered. A lack of clarity among involved parties regarding roles and responsibilities renders the working relationship vulnerable to subsequent misunderstanding and conflict and may, in itself, represent ethical misconduct on the part of the psychologist (APA Ethics Code, Standard 3.07, Third-Party Requests for Services). Consider the attorney who calls to request that the forensic examiner conduct an examination of the defendant and prepare a report that will form the basis for testimony to be offered at trial, and also to be available to assist with jury selection. The early discussion of the forensic psychologist’s general commitment to assuming one role in a case to avoid role conflicts, may assist the attorney in case planning. The attorney can then consider whether to retain the expert under those terms, and if so, to seek an additional expert to assume the second role. Competence. Psychologists work in areas in which they have competence (APA Ethics Code, Standard 2.01, Boundaries of Competence). Forensic services must be performed competently to be useful, and it is the psychologist’s affirmative obligation to develop competency before undertaking the independent provision of forensic services. Professional competence is obtained through a combination of education, formal practical training, and experience (Melton et al., 1997). Competence in one area of psychology does not imply competence in other areas, and increasingly, specialization within forensic psychology is the rule rather than the exception. As the research base and practice standards evolve, and specialized instruments make their way into forensic practice, it is increasingly challenging to practice competently across multiple areas within forensic psychology. To develop competency in a new area, the psychologist may find it helpful to obtain continuing education and read in a new area and to seek consultation and even shadow a

60

Mary A. Connell

practitioner who is experienced in that area of specialization. Furthermore, the psychologist who has strong clinical skills in a particular area should not assume that competence will translate to competent forensic practice in the area (Heilbrun, 2001). Forensic practice in any specialty area calls for skills and knowledge that fall far outside the purview of clinical practice. The competent treatment of children traumatized by abuse or neglect, for example, does not serve as a sufficient basis for forensic assessment of children who are allegedly abused or neglected. Financial arrangements. Through management of fees for their services, forensic psychologists set the tone and, to some extent, define the terms of their relationship with the retaining attorney or the court-referred litigant. Poor fee management has the potential to significantly interfere, or appear to interfere, with objectivity. Fees should never be contingent upon the outcome of a legal case in which a psychologist is offering an opinion to be relied upon by the court (SGFP, IV.B). To hinge fee collection on success of the retaining party would render the psychologist vulnerable to intentionally or unintentionally producing a report or testimony that favors the retaining party. Because impartiality is not a requirement of the trial consultant role, it is arguably acceptable to work as a trial consultant on a contingency agreement. Nevertheless, the psychologist working as a trial consultant may find that the decision to accept payment for services contingent upon the outcome of the case alters the manner in which services are delivered. If the consultant is willing to sacrifice any ethical principles to secure victory for the retaining party, then the contingency fee arrangement is ill advised. A second area of fee management that raises potential ethical issues is charging higher fees for testimony (Heilbrun, 2001). Some psychologists charge a higher fee for deposition or court testimony on the basis that such work takes them out of the office, is more stressful than other work, or increases vulnerability to malpractice suits or board complaints. However, there are several ways in which disparate fee setting may create ethical dilemmas. First, the retaining attorney may be able to gain access to the forensic psychologist at a lower hourly fee than opposing counsel. When telephone consultation or in-office consultation is billed at the regular fee and deposition and testimony are billed at an inflated fee, opposing counsel may have to pay the higher fee to query the psychologist about the opinions to be offered, or challenge those opinions. Second, it could be argued that the forensic psychologist who stands to be compensated a greater fee for deposition or testimony may have a vested interest in arranging matters so that a deposition or testimony is necessary in order to discover the opinions or their bases in a case. If the psychologist writes only a brief report or fails to disclose the data underlying an opinion to be offered to the court so that the only way counsel can discover and probe the basis of that opinion is through deposition or court testimony, it may be reasonably argued that the psychologist is purposely concealing data to increase the income from the case. Preferable billing arrangements may include charging a flat fee for specific forensic services, or a fixed hourly fee regardless of activity. Flat fees or preset fees for specific services carry the risk that a relatively more complex case generates less income per hour. The psychologist charging a flat fee for assessment in a particular area must be cautious not to give short shrift to the complex case in which the hourly pay is

Ethical Issues in Forensic Psychology

61

steadily decreasing because of the hours required by the case complexity. Because it may be difficult to control the natural resistance to providing additional hours of service without compensation, it may be more workable to charge an hourly fee. The paying party may justifiably wish to be provided with some estimate of the hours that will likely be required to complete the work. Retainer arrangements are common in forensic service delivery in the private sector. The unused portion of the retainer may be fully refundable when service delivery is aborted for some reason or is completed, or some or the entire retainer may be deemed “nonrefundable” by the forensic psychologist, to guard against the loss of billable time. It is crucial to establish fee agreements ahead of time in sufficient detail to anticipate and reduce the likelihood of potential misunderstandings or conflicts (APA Ethics Code, Standard 6.04 (a), Fees and Financial Arrangements). In considering billing options, the goals are to be adequately and fairly compensated for one’s services, to charge fees that are a fair reflection of the value of the service being provided, and to establish procedures that limit the potential of having one’s opinions or work product swayed by the possibility of increased revenue.

Collection and Review of Information Bases for opinions. Opinions offered in court are based on multiple data sources selected to address the referral question in as relevant and reliable a way as possible (Grisso, 2003; Heilbrun, 2001). This includes not only the data collected directly from the examinee through interview and, where appropriate, testing, but also review of documents from, and potentially interviews with, third-party sources (Heilbrun, Warren, & Picarello, 2003). These collateral sources of information increase the examiner’s certainty as opinions are formulated; divergent data generate new hypotheses to be explored, whereas convergent data increase reliability of findings. The information and techniques used in developing forensic opinions must be sufficient to substantiate them (APA Ethics Code, Standard 9.01a, Bases for Assessments). It is a principle of forensic practice that the examiner considers and investigates rival hypotheses, looking at the matter from each plausible perspective and weighing the support found in the data for all possible interpretations of the data (SGFP VI C, Methods and Procedures). Obtaining information. In considering the data to be collected and reviewed, the psychologist may consider the possible sources of information about the examinee that would contribute to a full and accurate understanding of the examinee. The information gathered should provide incremental validity, yielding trustworthy or credible data. Information that is obtained from a source that lacks credibility, if given much weight, lessens the accuracy of the evaluation findings. Multiple sources of information can contribute: (a) independent corroboration of essential aspects of the examinee’s history, (b) relevant information about past mental states, and (c) observational data from a variety of contexts, thus increasing the likelihood that they are representative (Bush, Connell, & Denney, 2006). Impartiality. Forensic examiners actively seek data that might be expected to support or refute each hypothesis, including those that are contrary to the retaining

62

Mary A. Connell

attorney’s theory of the case (Shuman & Greenberg, 2003). For example, the psychologist retained by defense counsel to conduct an assessment for sentencing purposes may be assured by counsel, and by the defendant, that the defendant was never in trouble as a youngster and displayed exemplary behavior at school. Seeking further data to corroborate or refute this finding of good childhood behavior patterns, the psychologist may consider interviewing family members, obtaining school records, and seeking medical and mental health records from the period of the defendant’s childhood. It is probable that family members will provide information they believe to be helpful to the defendant. School records may be limited to transcripts, but if more complete school records are available, they may contain some behavioral assessment data. Medical and mental health records, if available, may be the richest source of data about any reported behavioral difficulties. All three sources of data may be useful and provide convergent validity, but if variable information is obtained, the most reliable data may be data that was created contemporaneously, without the influence of litigation, by people with relatively little bias. An impartial search for reliable data calls for such discrimination (Heilbrun, Warren, & Picarello, 2003).

The Evaluation The psychologist–examinee relationship. The examinee or litigant is not the forensic examiner’s client but rather is the client of an attorney—either the attorney who retained the forensic psychologist or the opposing attorney. No treatment relationship exists between the forensic examinee and the examiner. The nature of this relationship is in sharp contrast to that usually extant between psychologist and examinee, and should be clearly described to the examinee at the outset. It bears repeating when the examinee displays confusion about roles, asking for advice or help with a current issue, for example, or reveals misconceptions by, for example, addressing the “helpfulness” of the examiner’s work (Connell, 2006). Even in the absence of the traditional treatment relationship, the forensic examiner has ethical obligations to the examinee. The examiner must try to ensure that the examinee understands the nature of the assessment, the limitations of confidentiality, the mechanisms for gaining feedback, and who is paying for the services (APA Ethics Code, Standard 3.11[b], Psychological Services Delivered to or through Organizations). Informed consent, assent, and notification of purpose. The forensic examination always occurs at the request of someone else: the court, an agency, or counsel for one or the other side of the matter. This means that informed consent, which relies on voluntary, knowing participation, may not be altogether relevant. The forensic practitioner has certain ethical obligations to inform the service recipient of the procedure and the range of potential consequences, of who is paying for the services, and of any conflicts of interest the examiner may have (APA Ethics Code, Standards 3.10, Informed Consent, & 9.03, Informed Consent in Assessments), but this may not be sufficient to protect the rights of the examinee. In addition to this notification or informed consent process (or, if the examinee is a child, the assent process) that takes place with the examinee, other steps may

Ethical Issues in Forensic Psychology

63

also be required. The options available and their potential consequences need to be explored, and the examinee’s legal representative can best do this. In order to fully comprehend what is about to occur, counsel requires information from the forensic practitioner as well (Connell, 2006; Cunningham, 2006; Foote & Shuman, 2006). Notification of Purpose or Informed Consent information, made available to the litigant and counsel before the assessment or services begin, can arm the legal representative with the necessary information to consider the ramifications and appropriately advise the client. Procedures and measures. The admissibility standards for expert testimony demand that opinions be based on techniques that are relevant to the matter before the court and that are reliable, and that enjoy general acceptance in the field (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993). In selecting procedures and measures, it is incumbent on the forensic examiner to focus on the psycholegal issue and select assessment techniques that may be expected to contribute to an understanding of that issue. Otto, Buffington-Vollum, and Edens (2002) posed a series of questions examiners should consider when deciding the issue of testing in custody evaluation; however, these considerations also apply to psychological testing in other evaluation contexts (see Table 3.1). Forensic psychologists are expected to be able to defend, on the basis of both general acceptance and scientific merit, the methods and procedures upon which they relied in reaching an opinion. The forensic expert must illuminate, in the report of findings and when testifying, the path that led from data to opinion (Grisso, 2003; Heilbrun, 2001). Procedures and measures are selected, additionally, with an eye to their potential to generate data that will fairly address the psycholegal construct, rather than to generate data that will predictably support the retaining attorney’s theory of the case. For example, administration of a transparent or face-valid symptom checklist to a litigant seeking compensation for personal injury is likely to result in a positive finding. The utility of the instrument in fairly addressing the psycholegal question (whether the litigant suffered psychological injury) may be quite limited. In contrast, the issues may be addressed in a fairer and more balanced manner by using an TABLE 3.1

Considerations for Selecting Psychological Tests

1. Is the test commercially published? 2. Is a comprehensive test manual available? 3. Are adequate levels of reliability demonstrated? 4. Have adequate levels of validity been demonstrated? 5. Is the test valid for the purpose for which it will be used? 6. Has the instrument been peer-reviewed? 7. Do I posses the qualifications necessary to use this instrument? 8. Does the test require an unacceptable level of inference from the construct it assesses to the psycholegal questions of relevance? Note. From Otto, R. Buffington-Vollum, J. & Edens, J. F. (2002). In A. M. Goldstein (Ed.), Comprehensive handbook of psychology, Volume 11: Forensic Psychology (p. 188). New York: Wiley.

64

Mary A. Connell

instrument designed to assess not only the presence of psychological distress but also more general personality functioning and response style. Third-party observers. There are occasions when a party, often the plaintiff in a civil matter, requests or demands to be accompanied during a forensic assessment. Generally, this interest is to ensure that the examinee receives an appropriate and competently performed evaluation and to ensure that the examinee is not asked legally objectionable questions. In criminal matters, the defense attorney may want to observe an evaluation performed by the prosecution’s expert. Sometimes, particularly with children or vulnerable adults, the interest is in the reassurance that might come from having a family member, therapist, or other trusted person present. Although these motives of ensuring adequacy of psychological evaluation and protecting the examinee’s legal rights or emotional well-being are potentially legitimate interests, the presence of counsel or designees in the examination room does carry potential threats to the evaluation’s validity. First, there may be unknowable effects on the performance of the examinee, particularly in the cognitive domain. Although research in this area is thus far arguably equivocal, some studies have demonstrated negative effects on cognitive performance (e.g., Kehrer, Sanchez, Habif, Rosenbaum, & Townes, 2000; Lynch, 2003). Standardized administration for most of the commonly used assessment techniques, particularly those instruments that are administered “face to face” rather than in pencil/paper format, presumes the absence of observers or other potential distractions. (For example, the WAIS-III Manual states, “As a rule, no one other than you and the examinee should be in the room during the testing” (Wechsler, 1997, p. 29). The potential effects of observers on a particular examinee’s performance are not measurable, but some effect may be reasonably expected. Similarly, effects on performance may also occur when the examination is being audio- or video-recorded (Constantinou, Ashendorf, & McCaffrey, 2002; Constantinou & McCaffrey, 2003). Again, research results are not robust and performance in various domains may be enhanced, depressed, or unaffected—what is known at this point, is that the effects on the particular examinee are not known. This may not, however, be of sufficient concern to outweigh the advantages of having an accurate record of forensic interviews. In each case, the relative risks and benefits may be assessed or the examiner may develop a routine practice of, for example, recording interview interactions but ceasing to record during test administration. Finally, when recording occurs during verbal administration of instruments, or the administration of performance measures such as Block Design (a subtest on the Wechsler measures of intellectual functioning (Wechsler, 1997)), test security may be significantly compromised. As a contracted user of these instruments, the examiner must resist disclosure that would reduce the effectiveness of the instrument (Harcourt Assessment, 2003; Pearson Assessments, 2005). Such influences pose a threat to the validity and reliability of subsequent interpretation of test results. A potential solution to the dilemma that the forensic psychologist may face, particularly when the law clearly allows for observation, is to request a trained observer, a psychologist. This solution may satisfy the concerns of the litigant, provide reassurance in an adversarial process, and obviate the issues of test security. Although the presence of a psychologist observer would still be a departure from standardized

Ethical Issues in Forensic Psychology

65

test administration procedures, it may be a reasonable option in what is, in general, an aberrational assessment setting. The adversarial context of litigation itself may affect test performance in ways that are also not known. When it is necessary to have observers in the examining room, the psychologist should document the potential but unknowable impact of this deviation from standardized procedures on the examinee’s performance. Cultural diversity considerations. The forensic psychologist may regularly encounter circumstances in which a litigant’s cultural background or characteristics differ significantly from those of the examiner. All psychologists have an obligation to strive to work effectively and sensitively with regard to cultural differences (APA Ethics Code, Standard 2.01 [Boundaries of Competence], subsection [b] requires sensitivity to the impact of culture, disability, and other diversity factors on one’s professional competency); however, the working alliance in a therapeutic context may mitigate the impact on services. Often, forensic assessments occur in an adversarial context, and litigants may legitimately worry that their unique cultural heritage or other aspects of diversity may be unfamiliar or noxious to the examiner and may affect the examiner’s view or opinions. Whereas within a working alliance, the individual may educate the psychologist about the diversity issue or openly explore its impact on the relationship, in a forensic context, the examinee may be less confident in being heard or understood. Knapp and VandeCreek (2003) said, “It is not an ethical violation to provide less optimal treatment to members of . . . any groups; it is only a violation if the knowledge that is lacking is essential for providing services” (p. 303). For example, psychologists strive to use assessment instruments that have established validity and reliability for use with members of the population from which the examinee comes (APA Ethics Code, Standard 9.02). When validity or reliability is not established for the population, psychologists must describe how this limitation should be considered in test interpretation. Sometimes, the psychometric challenges faced in the assessment of racial or ethnic minorities are insurmountable (Iverson & Slick, 2003). When the use of an instrument, or an interpreter, would potentially have a profound effect on the outcome of the examination, or when there are so many potentially invalidating factors that the results are not likely to be of any use, it is preferable to note these limitations and forego attempting to develop an opinion about the matter before the court (Iverson and Slick, 2003). Record/peer reviews. Sometimes, rather than doing a direct examination of a litigant, the forensic psychologist reviews only the records or reviews the work of another examiner and then offers the limited observations or opinions that can be derived from that review. Although it is rarely acceptable to offer an opinion about someone not directly evaluated, there are some potential exceptions. The APA Ethics Code (Standard 9.01, Bases for Assessment, section [b]) states: Except as noted in 9.01c, psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions. When, despite reasonable efforts, such an examination is not practical, psychologists document the efforts they made and the result of those efforts, clarify the probable impact of their limited information on the reliability and validity of their opinions, and appropriately limit the nature and extent of their conclusions or recommendations.

66

Mary A. Connell

The 2002 Ethics Code directly addresses the issue of record review and similar consultation. “When psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations” (APA Ethics Code, Standard 9.01, Bases for Assessments, section [c]). It is the nature of the adversarial forum that evidence is scrutinized, and the expert witness’s testimony is evidence. The forensic examiner should anticipate that it will be necessary to subject one’s own work to the scrutiny of an opposing expert and to scrutinize the opinions offered by an opposing expert. These reviews are not conducted with personal malice but are conducted methodically and dispassionately, similarly to a forensic assessment. The review may generate an account of the strengths and shortcomings or weaknesses of the assessment and some appraisal of how shortcomings may weaken the resultant opinion (Gould, Kirkpatrick, Austin, & Martindale, 2004). Mandated measures. There may be situations in which agency or institutional rules call for the administration of certain tests or measures. The psychologist is ultimately responsible for decisions about what instruments and techniques are utilized, and when institutional demands conflict with the psychologist’s independent judgment, the psychologist seeks to reconcile the conflict by clarifying the issue and attempting to find a satisfactory solution (APA Ethics Code, 1.03, Resolving Ethical Issues). When the psychologist believes that different, or additional, measures should be used from those requested, an attempt should be made to reach an understanding with the retaining party of the importance of the psychologist’s making such test selection based on professional expertise (Bush, Connell, & Denney, 2006). A distinct but somewhat related issue arises when the psychologist is asked to provide a list of the examination measures in advance of the examination. To minimize the possibility of successful coaching of the examinee, the psychologist may elect to provide general categories of instruments to be used or a list of all measures from which selection will occur, without stating specifically which measures will be selected for the evaluation in question. Additionally, the psychologist may choose to identify the areas to be assessed, such as personality, verbal reasoning, memory, impression management, parenting style, or sexual violence risk potential, rather than the specific instruments that will be used.

Documentation of Findings and Opinions Forensic psychological records. To enable review of the data underlying opinion, forensic psychologists have an ethical obligation to appropriately document and maintain records of their work. In addition to the duty of all psychologists to document services and maintain records of those services (APA Ethics Code, Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records; Standard 5.01, Avoidance of False or Deceptive Statements, [b]), the SGFP (VI. B) calls for providing “. . . the best documentation possible under the circumstances.” This need to maintain documentation of services at a level that can withstand judicial scrutiny means

Ethical Issues in Forensic Psychology

67

psychologists should keep track not only of the data generated in direct contact with the examinee, such as interview notes or recordings and test data, but also of other communications and activities regarding the matter. A reviewer should be able to see from the record what the forensic practitioner did and when it was done throughout the work on the case from initial contact through completion of services. The expectation in the legal forum is that records reflect the sequence of events, when documents were received for review and from whom they were received, when they were reviewed relative to other activities in the case, the content of telephone consultations, dates and times of all activities, and other relevant information such as, for example, who transported a child to appointments, who was present during interviews, and why appointments were canceled or changed. A detailed record helps to demonstrate that competent services were provided. Scope of interpretation. Forensic expertise is of value to the trier of fact when opinions are based on a combination of individualized (ideographic) and groupreferenced (nomothetic) approaches to data collection and interpretation (Heilbrun, 2001). Information specific to the examinee, or ideographic information, is collected and compared to relevant group data, or nomothetic data. When the individual’s performance on psychological measures or presentation upon interview differs from comparison groups, interpretations of the differences may incorporate the individual’s unique life circumstances, with an emphasis on variables known to affect such performance. The Ethics Code states, “Psychologists’ work is based upon established scientific and professional knowledge of the discipline” (Standard 2.04, Bases for Scientific and Professional Judgments). An opinion that is not grounded in objective data and scientific principles may be found to be inadmissible because its reliability cannot be demonstrated. When there is pressure to make definitive statements to the court, psychologists may find that their academic inclination to qualify statements is anathema to the legal system’s search for definitive opinion. It is important for psychologists to assert opinions as strongly as the data merits, but also to describe the limitations of those opinions (APA Ethics Code, Standard 2.04, Bases for Scientific and Professional Judgments). Ultimate issue. Most issues to be decided by the court are legal issues that embrace society’s values or moral judgments. Psychologists may be able to provide useful information to be considered along with other evidence and in light of the values and moral sensibilities of the trier of fact. Psychological training does not prepare psychologists to have expertise about moral issues and although, as individuals, they may have strong opinions, their testimony is being offered based on their psychological expertise, not on their own personal beliefs and values. However, attorneys, and sometimes judges, are quite interested in the psychologist’s opinion regarding the legal question itself (Bow & Quinnell, 2004). Offering an opinion that embraces the ultimate legal question is not generally legally objectionable, but it does threaten to invade the province of the court, because it is specifically the task of the trier of fact to make this determination. Melton et al. (1997) noted that when forensic practitioners opine on the ultimate issue before the court, their overstepping of competency is sometimes egregious, particularly in matters of child custody. Psychologists who attempt to answer the legal question are vulnerable to exceeding the bounds of their expertise (Heilbrun, 2001). Grisso (2003) said, “An expert opinion that answers the

68

Mary A. Connell

ultimate legal question is not an ‘expert’ opinion, but a personal value judgment” (p. 477). Tippins and Wittman (2005) called for clinicians to assume a far more humble approach and resist inferential leaps that stretch the data to apply clinical formulations to legal issues. There is vigorous debate within the forensic community about offering opinions on the ultimate issue. Those who argue in support of the offer of such testimony observe that the forensic psychologist’s hesitancy to do so may be the exception rather than the rule among testifying experts (Bala, 2005; Erard, 2006). Experts from the field of medicine, for example, regularly offer clinical judgments or professional opinions, and courts presumably make use of their judgments in fact finding. Psychologists may be tying their hands behind their backs, critics argue, by holding themselves to a higher standard than other experts and may make themselves less useful to the legal system in so doing (Bala, 2005; Erard, 2006). Psychologists who practice in contexts in which it is expected or required that they answer the legal question may make a special effort to temper their opinions by including cautionary language and caveats regarding the limitations of, and potential influences on, their opinions.

Release of Raw Data The APA Ethics Code (2002) distinguished test materials, including manuals, instruments, protocols, and test questions or stimuli from test data (Standard 9.11, Maintaining Test Security). In order to maintain test security (Standard 9.11) and thereby test utility, test materials are not widely disseminated. Test data, in contrast, include “raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination.” (APA Ethics Code, Standard 9.04[a], Release of Test Data). When test materials have responses written on them, they “convert” to test data. Psychologists provide test data, with appropriate release, to anyone designated by the examinee or legal representative (APA Ethics Standard 9.04); in many forensic contexts, the attorney or court may determine to whom the data are released. Withholding test data on the grounds that releasing the data could result in substantial harm to the examinee may be justifiable (APA Ethics Code, Standard 9.03[a]); in most forensic contexts, this issue may not be relevant, and the default assumption from the outset is that test data will be accessible as part of the foundation for the expert opinion that is to be proffered.

Feedback Psychologists generally provide feedback to examinees about test results and interpretations. However, an exception may be made with forensic examinations where there is no ethical requirement to do so (APA Ethics Code, Standard 9.10, Explaining Assessment Results). It is atypical, in fact, for forensic examiners to provide feedback directly to examinees in some forensic settings, such as examinations of plaintiffs

Ethical Issues in Forensic Psychology

69

by defense-retained experts. Findings are instead released to the retaining party, who has control over their further release. Similarly, in court-ordered child custody evaluations, the evaluator may be directed by the court or may choose to release the report to the court and the attorneys without giving feedback directly to the parties. HIPAA (Health Insurance Probability and Accountability Act; U.S. Department of Health and Human Services) does not seem to protect the examinee’s right to access and amend psychological records in forensic contexts (Connell & Koocher, 2003; U.S. Department of Health and Human Services, 1996). The psychologist makes clear at the outset the manner in which findings will be released. When there are statutory requirements to provide feedback (for example, codified rules of practice), there may be no “exemption” from the requirement in forensic settings, and the psychologist would then need to comply with the regulation by providing feedback.

Testimony Expert testimony generally involves the presentation of findings or opinions developed through forensic psychological services. It may be provided by way of affidavit, deposition, or court appearance. Often the thrust of testimony is an amplification of what is contained in the written report through direct examination and cross-examination. It reflects an assimilation of the data collected, the relevant research, and the link between that data and any opinions that have been formulated (Heilbrun, 2001). When testifying, psychologists should not, either actively or passively, engage in partisan distortion or misrepresentation (SGFP [VII. D]). The SGFP (VII. D) further states that forceful representation of the data and reasoning upon which one’s opinion is based is not precluded, as long as the information is presented accurately. It is not acceptable, however, to omit important evidence or data that contradict the opinions formulated; the SGFP (VII. D) states, “Forensic psychologists do not, by either commission or omission, participate in a misrepresentation of their evidence, nor do they participate in partisan attempts to avoid, deny, or subvert the presentation of evidence contrary to their own position.” The attorney offering the psychologist as an expert should know the data that argue for or support the expert’s opinion, as well as the countervailing data. The attorney can then decide whether to call the expert to testify. When the forensic psychologist testifies, it is with an affirmative ethical obligation to do so in a forthcoming, evenhanded way that fairly represents the data (SGFP VII. D).

Summary Forensic psychologists, practicing ethically and competently, make a valuable contribution to the justice system. Because they work in the public eye and their work is scrutinized through the workings of the adversarial process, they are subject to both a strong call for the highest ethical standards and the potential to be held accountable when their practice falls below acceptable standards or they engage in an unethical action. There are some inherent potential conflicts among the demands of the various

70

Mary A. Connell

entities the forensic psychologist served or encountered by, and there is at times a temptation to engage in ethical misconduct. Forensic psychologists can make good ethical decisions by recognizing, from the outset, that in applying their psychological expertise in the legal arena, ethical dilemmas will arise for which there is no simple solution. There are vast resources available to the forensic practitioner to assist in the resolution of these problems, and a systematic approach to their application is useful. The psychologist works within a framework that respects the values of autonomy, nonmalfeasance, beneficence, and justice, and considers the inherent tensions between the civil rights of the parties in a legal action and the search for truth and justice. A systematic approach to the assimilation of information from all relevant sources, including professional standards and guidelines, the law, professional treatises, and collegial consultation may bring the practitioner nearer a satisfactory resolution. Also requiring consideration, however, are personal biases and their effects, potential consequences to all involved parties, and timing of action. For many ethical dilemmas, a perfect resolution is not available, and the psychologist must seek to find and employ the highest available ethical action. Unintentional missteps may occur even for experienced practitioners who may face novel ethical dilemmas in spite of careful forethought and planning. The standards for competent and ethical practice will continue to evolve with increasing sophistication in the specialty area and in the law’s use of psychologists’ input in matters at bar. Maintaining competent and ethical behavior in practice requires a lifelong commitment to ongoing professional development. References American Educational Research Association, American Psychological Association, & National Council on Measurement in Education (1999). Standards for educational and psychological testing. Washington, DC: Author. American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49, 677–680. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. Bala, N. (2005). Tippins and Wittman asked the wrong questions: Evaluators may not be “experts,” but they can express best interests opinions. Family Court Review, 43, 554–562. Bennett, B.E., Bryant, B.K., VandenBos, G.R., & Greenwood, A. (1990). Professional liability and risk management. Washington, DC: American Psychological Association. Bow, J.N., & Quinnell, F.A. (2004). Critique of child custody evaluations by the legal profession. Family Court Review, 42, 115–126. Bush, S.S., Connell, M.A., & Denney, R.L. (2006). Ethical practice in forensic Psychology: A systematic model for decision making. Washington, DC: American Psychological Association. Canadian Psychological Association. (2000). Canadian Code of Ethics for Psychologists (3rd ed.). Accessed on November 23, 2006 at http://www.cpa.ca/cpasite/userfiles/ Documents/Canadian%20Code%20of%20Ethics%20for%20Psycho.pdf. Canadian Psychological Association (2001).Practice guidelines for providers of psychological services. Ottawa, Ontario: Author.

Ethical Issues in Forensic Psychology

71

Committee on Ethical Guidelines for Forensic Psychologists, American Psychology-Law Society and Division 41 of the APA (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Connell, M. (2006). Notification of purpose in custody evaluation: Informing the parties and their counsel. Professional Psychology: Research and Practice. 37, 446–451. Connell, M. & Koocher, G. (2003). HIPAA & forensic practice. American Psychology Law Society News, 23, 16–19. Constantinou, M., Ashendorf, L., & McCaffrey, R.J. (2002). When the 3rd party observer of a neuropsychological evaluation is an audio-recorder. The Clinical Neuropsychologist, 16, 407–412. Constantinou, M., & McCaffrey, R.J. (2003). The effects of 3rd party observation: When the observer is a video camera. Archives of Clinical Neuropsychology, 18, 788–789. Cunningham, M.D. (2006). Informed consent in capital sentencing evaluations: Targets and content. Professional Psychology: Research and Practice. 37, 452–459. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Erard, R.E. (2006). Tell it to the judge!: A counter-perspective to Wittman & Tippins (2005) on ultimate issue testimony in child custody matters. National Psychologist, 15, 1. Foote, W.E. & Shuman, D.W. (2006). Consent, disclosure, and waiver for the forensic psychological evaluation: rethinking the roles of psychologist and lawyer. Professional Psychology: Research and Practice. 37, 437–445. Frederick, R. (1997) Validity Indicator Profile. Bloomington, MN: Pearson Assessments. Frye v. United States, 293 F. 1013 (D.C. Cir 1923). Gould, J.W., Kirkpatrick, H.D., Austin, W.G., & Martindale, D.A. (2004). Critiquing a colleague’s forensic work product: A suggested protocol for application to child custody evaluations. Journal of Child Custody: Research, Issues, and Practices, 1, 37–64. Greenberg, S., & Shuman, D. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50–57. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum Publishers. Grisso, T. (1990). Evolving guidelines for divorce/custody evaluations. Family and Conciliation Courts Review, 28, 35–41. Harcourt Assessment (2003). HIPAA position statement. Accessed November 21, 2006, at http://harcourtassessment.com/hai/images/pdf/legal/HIPAA_Position.pdf. Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Kluwer Academic/Plenum Publishers. Heilbrun, K., Warren, J., & Picarello, K. (2003). Third party information in forensic assessment. In A. Goldstein, (Ed.), Handbook of forensic psychology (pp. 69–86). New Jersey: John Wiley & Sons. Iverson, G.L., & Slick, D.J. (2003). Ethical issues associated with psychological and neuropsychological assessment of persons from different cultural and linguistic backgrounds. In I.Z. Schultz & D.O. Brady (Eds.), Psychological injuries at trial (pp. 2066–2087). Chicago, IL: American Bar Association. Kehrer, C.A., Sanchez, P.N., Habif, U., Rosenbaum, G.J., & Townes, B.D. (2000). Effects of a significant-other observer on neuropsychological test performance. Neuropsychology, Development, and Cognition, 14, 67–71. Knapp, S., & Vandecreek, L. (2003). A guide to the 2002 revision of the American Psychological Association’s Ethics Code. Sarasota, FL: Professional Resource Press. Koocher, G.P., & Keith-Spiegel, P. (1998). Ethics in psychology: Professional standards and cases (2nd ed.). New York: Oxford University Press.

72

Mary A. Connell

Lynch, J.K. (2003). The effect of an observer on neuropsychological test performance following TBI. Archives of Clinical Neuropsychology, 18, 791. Manual for Courts-Martial, United States, Mil. R. Evid. 513 (2000). Martindale, D.A., & Gould, J.W. (2004). The forensic model: Ethics and scientific methodology applied to custody evaluations. Journal of Child Custody, 1, 1–22. Melton, G.B., Petrila, J., Poythress, N.G., & Slobogin, C. (1997). Psychological evaluations for the courts. New York: The Guilford Press. Otto, R. Buffington-Vollum, J., & Edens, J.F. (2002). Child custody evaluation. In A.M. Goldstein (Ed.), Comprehensive handbook of psychology, Volume 11: Forensic Psychology (pp. 179–208). New York: Wiley. Pearson Assessments. (2005). HIPAA regulations: Frequently asked questions. Accessed at http://www.pearsonassessments.com/catalog/hipaa.pdf on November 21, 2006. Shuman, D.W., & Greenberg, S.A. (2003). The expert witness, the adversary system, and the voice of reason: Reconciling impartiality and advocacy. Professional Psychology: Research and Practice, 34, 219–224. Shuman, D.W., & Greenberg, S.A. (1998, winter). The role of ethical norms in the admissibility of expert testimony. The Judge’s Journal, 5–9 & 42. Social Security Act § 1172(e) (codified at 42 U.S.C.§ 1320d-1(e)). Tippins, T.M., & Wittman, J.P. (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43, 193–222. Tombaugh, T. (1996). Test of Memory Malingering. Toronto, Canada: Multi-Health Systems. U.S. Department of Health and Human Services (1996). Public Law 104-191: Health Insurance Portability and Accountability Act of 1996. Retrieved November 24, 2003 from http://www.hhs.gov/ocr/hipaa/. Wechsler, D. (1997). Weschsler Adult Intelligence Scale-III. San Antonio, TX: The Psychological Corporation.

II Adult Forensic Assessment

73

4 Evaluations of Adult Adjudicative Competency Stephen L. Golding

The purpose of this chapter is to provide mental health professionals with an introduction to the assessment of adult adjudicative competency1 as a forensic mental health professional. In doing so, I will attempt to outline the essential legal, ethical, professional assessment and interpretational issues. However, individuals attempting to work in this area also need to obtain supervision and learn more about the overarching ethical, legal and professional concepts and skills that are somewhat unique to forensic assessments. More comprehensive treatment of the broader issues may be found in: (a) Specialty Guidelines for Forensic Psychologists2 (SGFP; Committee on Ethical Guidelines for Forensic Psychologists, 1991), (b) Principles of Forensic Mental Health Assessment (Heilbrun, 2001), and (c) Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers3 (Melton, Petrila, Poythress, & Slobogin, 1997). In addition, more detailed treatment of all of the issues raised in this chapter concerning adjudicative competency may be found in Evaluating Competencies: Forensic Assessments and Instruments (Grisso, 2003) and a series of essential reviews (Poythress, Bonnie, Monahan, Otto & Hoge, 2002; Roesch, Zapf, Golding & Skeem, 1999; Skeem, Golding & Emke-Francis, 2004; Stafford, 2003).

History and Significance of Adjudicative Competency Adjudicative competency has been an issue in Anglo-Saxon jurisprudence from the early 13th century. At that time, which predated a number of significant legal rights (e.g., assistance of counsel), many types of pleas existed and a trial could not proceed without a defendant’s entering a plea. If the defendant did not, the competency issue arose in the form of a query: Was he “mute by malice,” i.e., not responding to the indictment in order to prevent a trial,4 or “mute by visitation by God,” i.e., unable to comprehend and respond to the charges because of mental retardation or disorder. Conceptualizations of the “competency problem” slowly changed as both the principles of jurisprudence and understanding of mental disorder matured. By the 17th century, Coke observed that allowing an incompetent defendant to proceed to trial compromised the moral authority of the court and would be “a miserable spectacle, both against the law, and of extreme inhumanity and cruelty, and can be no example to others” (see Roesch et al., 1999). A further core jurisprudential justification, 75

76

Stephen L. Golding

that the trial of an incompetent defendant is like an unjust adversarial contest “in which the defendant, like a small boy being beaten by a bully, is unable to dodge or return the blows,” also emerged (Frith’s Case, 1790). In 1899, these conceptualizations were drawn into American case law in Youtsey v. United States5 (1899). The significance of adjudicative competency can be understood legally, procedurally, and economically. In our adversarial system, it is considered a fundamental violation of fairness and due process to proceed against an incompetent defendant (Dusky v. United States, 1960). The constitutional concern about proceeding against an incompetent defendant is both pragmatic and symbolic. Pragmatically, an individual who cannot participate vigorously and effectively in his defense is denied “fundamental fairness” and may be erroneously convicted. Symbolically, the moral authority of the judicial system is diminished as was stated so eloquently in Frith’s Case (1790). Procedurally, adjudicative incompetency places a “hold” on all subsequent phases of an adjudication. Thus, an issue of a defendant’s competency is effectively an adjudicative bottleneck. Economically, competency evaluations, competency hearings and competency restoration require the majority of “forensic mental health dollars” in any jurisdiction (Golding, 1992).

Adjudicative Competency as a Construct I have long argued that competency is a “open-textured construct” in the precise sense set forth by Cronbach and Meehl (1955). Thus, competency cannot be reduced to a precise set of operational definitions (like a score of such-and-such on a test, or the presence of a given symptom or diagnosis), but is by its nature open-textured. As discussed subsequently, this is one of the main reasons why various proposals to operationalize competency by means of nomothetic tests often produce unsatisfactory or incomplete results. Nomothetic assessment devices, such as the MacArthur Competency Assessment Tool (MacCAT; Poythress, Nicholson, Otto et al., 1999) or the Evaluation for Competency to Stand Trial-Revised (ECST-R; Rogers, Tillbrook & Sewell, 2004), are a useful supplement to other idiographic assessment techniques and integrative strategies that contextualize a defendant’s competency in terms of the specific details of the case.6 Being “open-textured,” however, does not mean a conceptual free-for-all; careful review and understanding of relevant constitutional cases helps to reveal the possible contours of the adjudicative competency construct and, hence, the contours of an assessment of adjudicative competency.

The Constitutional Structure of Adjudicative Competency Relating psychopathology or intellective functioning to competency. All legal analyses of adjudicative competency are based upon the premise that competency does not have a precise relationship to either intelligence or level of psychopathological disturbance. The most common error made by inexperienced forensic examiners is to equate either extreme psychopathology or significant retardation7 with incompetency. Incompetent defendants are often psychotic, but psychotic defendants, in

Evaluations of Adult Adjudicative Competency

77

general, are not incompetent (Viljoen & Roesch, 2003). Intelligence and psychopathology function in an “if–then” fashion in terms of their relationship to competency. Presence of either mental retardation or psychopathological disturbance is merely “a threshold issue that must be established in order to “get one’s foot in the incompetency door” (Skeem, Golding & Emke-Francis, 2004). It is the “linkage” between psychopathological or cognitive limitations and functional impairment in critical psycholegal8 abilities that is central to the competency construct. (Skeem & Golding, 1998). Thus, the essence of a competency evaluation is not the assessment of pathology or cognitive functioning, but rather how and why this can be linked to deficits in specific psycholegal abilities that are required of a defendant in a particular case. Unfortunately, as Skeem and Golding (1998) have shown, this is most often the weakest part of competency evaluations and reports. Defining competency constitutionally. The basic constitutional contours of adjudicative competency were set forth in Dusky v. United States (1960): It is not enough for [a] judge to find that “the defendant is oriented to time and place and has some recollections of events,” but that “the test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational9 as well as factual understanding of the proceedings against him.” [p. 402]

A fundamental skill for a forensic examiner’s competency is knowledge of the competency statute and its interpretation in the relevant jurisdiction. From a legal perspective, this is best accomplished by “shepardizing”10 Dusky within the jurisdiction. However, most jurisdictions simply adopt 11 the vague Dusky language. Professional levels of forensic competency are best achieved by study of those jurisdictions that have created articulated standards (e.g., Utah Annotated Code ([2006], §77-15-5) and by knowledge of the professional literature.12 Even so, a forensic examiner must realize that the constitutional contours of competency prohibit an inflexible “list” of competency-related psycholegal abilities. Thus, in Drope v. Missouri (1975), the United States Supreme Court observed that, ”[there are], of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated” (p. 180). In a subsequent section I discuss the more common psycholegal abilities usually evaluated in a standard competency evaluation, but one should realize that the specific psycholegal abilities “in play” are driven by the specific context of a particular case and may involve “other competencies” not ordinarily evaluated when a defendant is represented by counsel (e.g., competency to waive counsel or waive an insanity defense recommended by counsel; competency to confess; competency to plead guilty or waive postconviction appeals; and competency to refuse psychotropic treatment aimed at competency restoration). In the pivotal case of Godinez v. Moran (1993), the Supreme Court addressed the question of whether these “other competencies” (e.g., competency to proceed pro se, plead guilty, waive an insanity defense) should be judged according to the constitutionally mandated Dusky standard, or whether they should be judged by a higher standard because of the additional constitutional parameters of such decisions. The wiseness of the defendant’s decision or whether the defendant is legally sophisticated

78

Stephen L. Golding

is not the issue. Rather, the issue is whether or not mental disorder compromises the defendant’s ability to make rational (though “stupid” or ill-advised) decisions. Many defendants who wish to proceed pro se or plead guilty (against the advice of counsel) do so because of depression or suicidal ideation, delusionally inspired thinking about religious issues, or extreme and idiosyncratic belief systems (usually of a political or social nature). These situations always pose difficult questions for courts and forensic examiners because distinguishing between delusionally-influenced incompetent decision-making and idiosyncratically inspired decisions pushes the boundaries of our scientific and social knowledge (Golding, Skeem, Roesch, & Zapf, 1999; Litwack, 2003). Although the issue legally framed in Godinez was whether a higher or different standard than Dusky applies, the more important legal and pragmatic issue is whether or not a full inquiry is made into a defendant’s decisional capacities,13 regardless of what standard is applied to that analysis. The Godinez court found that the standards were the same, but avoided the more troubling aspect of Moran’s case. When Moran’s competence was evaluated, the examination focused solely upon his capacity to stand trial with the assistance of counsel. At that time, he was cooperating with counsel. When he appeared at trial 3 months later, however, he sought to discharge his public defender and plead guilty to all three charges of capital murder, without any stipulation by the prosecution as to sentence. The trial judge relied upon the prior competency evaluations to accept his waiver of counsel and guilty plea. At his sentencing hearing, Moran presented no defense, and would not permit the introduction of any mitigation. He essentially “volunteered” for execution. Regardless of whether the standard of competence varies across contexts, how can an evaluation in one context generalize to another very different context? Clearly, Moran’s mental state, like the change in context, may have changed. If so, a new inquiry into competency would be constitutionally required under Pate v. Robinson (1966; see discussion following). Most courts and attorneys have interpreted (incorrectly, I believe) Godinez as standing for the proposition that competency assessed in a particular context and time frame generalizes across contexts.14 Other courts have scrutinized the issue by a more appropriate Pate analysis and have not accepted the arguably erroneous interpretation of Godinez.15 As discussed below, any significant change in the context in which a defendant was evaluated may trigger the need for a reevaluation, and evaluators should stress this issue in their reports.16 Raising the competency issue. In Pate v. Robinson (1966), the U.S. Supreme Court recognized, given the constitutional imperatives involved in not proceeding against a potentially incompetent defendant, that all officers of the court (defense and prosecution counsel as well as the judge) have an obligation to raise and resolve a competency inquiry, whenever a bona fide doubt as to a defendant’s competency exists. Although usually raised in a pre-adjudication context, Pate requires that the issue be resolved whenever a genuine doubt exists, and thus it may arise as contexts change before and during and subsequent to the trial, particularly with defendants whose mental state fluctuates, even while medicated.17 Many inappropriate competency referrals are made because officers of the court are often hesitant to deny a Pate motion for fear of a conviction being overturned on grounds that a uninvestigated and unadjudicated bona fide doubt existed. A reasonable solution to the “does a genuine doubt” exist, or

Evaluations of Adult Adjudicative Competency

79

“is this a redundant or inappropriate Pate motion,”18 is found in some jurisdictions that provide for hearing on the sufficiency of the Pate petition.19 Regardless of statutory language, courts have the authority to reject inadequately founded, redundant or frivolous motions (United States v, Bradshaw, 1982). Regardless of the sufficiency of a Pate petition, forensic examiners, as part of their evaluation procedure, should always ascertain the grounds for the petition from the moving party, because this provides an orientation to the particular psycholegal issues likely to be involved (Grisso, 1988; Melton et al., 1997). Pate has another important and often unappreciated implication. Does Godinez limit forensic examiners and triers of fact when a “new” competency issue arises? A common misinterpretation of the Godinez holding has been that, since there is no constitutional requirement for a competency standard to be “higher” or “different” in differing contexts, then a finding that a defendant is competent to proceed, when he was evaluated in context A (e.g., cooperating with his attorney, not intending to represent himself), he is therefore also competent to proceed in context B (e.g., subsequently firing his attorney and deciding to proceed pro se). Understanding Pate as being potentially triggered when context changes helps us to solve this problem. Thus, whenever a bona fide doubt arises, there is a constitutional mandate to investigate competency to proceed. Thus, if the context changes, a new bona fide doubt may also arise. There are other important practice implications of Pate and Godinez. First, since a mentally disordered defendant’s competence can fluctuate dramatically and quickly, forensic examiners should emphasize this in their court reports, especially when such fluctuations are part of the defendant’s mental health history. Secondly, forensic examiners should be cautious about relying upon “older” mental health records, again especially when there is reason to suspect fluctuation20. Third, forensic examiners should make the exact context of their evaluations clear to the court and state that their current opinions should not be taken as applicable to other, unevaluated contexts. Forensic examiners should write evaluative reports with this potential for mis-application in mind. A suggested boilerplate phrase would be something like, “Mr. X. was evaluated in the following context. [for example, he was compliant with his medication, was cooperating with his attorney, etc.]. Should the context of his case change,21 Mr. X would need to reevaluated in order to render a reliable and current opinion as to his competency.” Time limits for restoration. Once a defendant has been found incompetent, other constitutional issues arise in determining a defendant’s restorability or progress towards restoration. In Jackson v. Indiana (1972), the U.S. Supreme Court addressed the issue of how long an incompetent pre-trial defendant can be held by the state in an attempt to restore competency. The court’s holding, that a defendant “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future” (at 738), has given rise to wide jurisdictional disparities22 because of its vagueness. Many jurisdictions do not have so-called “Jackson limits” (Morris & Meloy, 1993; Roesch & Golding, 1979) and, similarly, most jurisdictions23 do not have a statutory scheme that dictates when and how often an incompetent defendant is reevaluated in terms

80

Stephen L. Golding

of whether or not restoration progress has been made and whether or not restorability is still a “substantial probability.” Regardless of legal difficulties, Jackson poses a problem for forensic evaluators because it presupposes (a) effective restoration treatments and (b) an ability to predict restorability and response to treatment. Little systematic research exists on the issue of the effectiveness of restoration interventions or the ability of examiners to predict accurately restorability, even though Jackson and Sell v. United States (2003; see discussion below) presume both. With respect to intervention effectiveness, a comprehensive review of the largely descriptive clinical and the scant empirical literature on psychosocial and psychoeducational restoration treatment programs24 for both mentally disordered and mentally retarded defendants by Pinals (2005) led her to conclude that Overall, the competence restoration literature supports that between eighty and ninety percent of all defendants with mental illness25 will be able to be restored to competence, and generally this restoration has been achieved in a period of less than six months [p. 104].

Pinals further notes that almost all restoration programs utilize a combination of psychopharmacological and psychoeducational treatment programs. As Pinals appropriately points out, however, data on either the relative efficacy of psychopharmacological and psychosocial or psychoeducational programs, explicitly called for by the Sell court are mostly lacking (see also Roesch, Ogloff, & Golding, 1993). Nevertheless, the prevailing psychiatric status quo is that psychopharmacological interventions, when medically “appropriate” (i.e. almost always if the defendant has a mental disorder), are an essential component of competency restoration. This then leads to an analysis of the efficacy of psychotropic medications and medication refusal. Constitutional framework for involuntary medication and restoration. Medication refusal and involuntary medication in the competency context has been addressed in three important Supreme Court cases. First, in Washington v. Harper (1990), the Supreme Court ruled that individuals who have been lawfully convicted retain certain constitutional rights,26 but authorized constitutionally acceptable procedures for the involuntary medication of prison inmates when such treatment was medically appropriate and necessary because of dangerousness to self or others. In Riggins v. Nevada (1992), the court extended its dangerousness justification to incompetent defendants, and also addressed the issue of whether an individual treated with psychotropic medications might be disadvantaged at trial because of those medications (what might be termed iatrogenic incompetency). On appeal to the Supreme Court, Riggins had argued that his medication altered his ability to assist his counsel and had affected his demeanor and mental state, thereby prejudicially affecting the jury’s construal of his testimony and especially his constricted affect. The Supreme Court reversed Riggins’s conviction on two principal grounds. First, the state had failed to demonstrate that Riggins’s involuntary medication was justified under Harper. Second, that the state had failed to show that, in order to adjudicate Riggins, he needed to be medicated to maintain his competency. The majority, therefore, believed that there was a substantial probability of trial prejudice. Thus, the court held that due process may be violated if, absent a compelling state interest, a defendant is forced to stand trial while on antipsychotic drugs that may negatively affect his demeanor and ability to participate in proceedings.

Evaluations of Adult Adjudicative Competency

81

The direct practice implication of Riggins (discussed in detail in the Sell section following) is that competency examiners need to evaluate whether or not a particular defendant, on a given level of medication, will have difficulties tracking the proceedings, consulting with counsel, engaging in appropriate cognitive abilities and displaying appropriate affect. Although a few states have incorporated Riggins into their competency assessment criteria, 27 competency examiners in other jurisdictions should also include an assessment of these important issues in their evaluations. The third and most problematic case is Sell v. United States (2003) Sell28 was diagnosed as having persecutory delusional disorder, he was found incompetent, but refused medication on grounds that delusional disorder would not respond to such treatment. He could not be medicated under a Harper rationale because he was not dangerous to self or others. The Supreme Court’s decision in Sell was a multipronged and problematic test for resolving the issue. The Court ruled that trial courts should be encouraged to decide the issue on Harper grounds, but failing that, should consider a number of specific factors. The first Sell prong is the state’s showing that an important governmental interest is at stake in the forcible medication of the defendant. Although apparently a purely legal issue, forensic examinations are implicated because the court indicated that a consideration in deciding the State’s “interest,” is the likelihood that he would remain in confinement if untreated and unrestored and the amount of time the defendant has already spent in confinement. Hence, examiners will be asked to assess the probability of nonrestoration given treatment refusal (see United States v. Lindauer, 2006). The second Sell prong is that “administration of the drugs is substantially likely to render the defendant competent to stand trial. This prong has serious implications for forensic examinations, but it is very uncertain that a forensic examiner has much of a database upon which to base an opinion. Certainly, if the defendant has shown “good response” in the past without undesirable cognitive and affective side effects, one could opine on this basis. However, based upon the existing empirical literature on the effectiveness of psychotropic medications, on what basis could one render a “substantially likely” to respond opinion? The Supreme Court may have saddled lower courts and examiners with a scientifically unworkable standard given our current knowledge of the effectiveness of antipsychotic medications. A careful critical analysis of the psychopharmacological outcome literature casts considerable doubt upon the oft-repeated mantra of the general effectiveness of psychotropic medications, particularly so-called second generation antipsychotic medications. One must acknowledge from the outset that a critical analysis of this area has been complicated by the more recent deluge of information concerning the appropriateness of research designs mandated by drug-industry-sponsored efficacy trials, the misreporting of data and/or authorship, and the statistical and research design assumptions of those efficacy studies (see Heres, Davis , Maino et al. [2006]; Jørgensen, Hilden & Gøtzsche [2006]; Tandon, [2006]). In addition, the external validity of most of the published psychopharmacological outcome literature is compromised because the most salient characteristics of forensic populations, e.g., comorbid substantance abuse disorders, comorbid personality disorders, and prior psychopharmacological failure, almost routinely lead to such individuals being excluded from efficacy trials. When one peers through the lens more carefully, being fully cognizant of the potentials for distortion,

82

Stephen L. Golding

it is much less clear on what basis experts could opine about the likelihood of restoration given psychopharmacological interventions. A reasonable read of the better psychopharmacological treatment outcome literature is that, on average, one third of clients will show both clinically and statistically significant response, one third will show a response pattern that is perhaps statistically significant but is meager clinically, and one third will show little, if any, response.29 In one of the most comprehensive and well-designed comparative outcome studies available, Lieberman, Stroup, McEvoy et al. (2005) compared mainstream secondgeneration antipsychotic medications and a first-generation antipsychotic in a large national sample.30 The principal outcome metric was “discontinuation for any reason.”31 Though there were some outcome differences between drugs, between 64 to 82% of the clients “discontinued.” Thus, even in a general chronically psychotic population, the base-rate for treatment ineffectiveness is quite high. While effectiveness in the special subpopulation of those adjudicated psychotic and incompetent has not been studied, on logical grounds the rate of ineffectiveness can be presumed even higher, because of prior treatment failure and lowered levels of therapeutic alliance attributable to prior involuntary treatment. Another pragmatic implication of the “substantial likelihood of treatment response” prong is the need to assess the defendant’s medication refusal history including the bases for that refusal (See Appelbaum, 1994, for an excellent review of treatment refusal). “Treatment refusal” is a longitudinal process that reflects not only a defendant’s psychopathology (e.g., lack of insight into the need for treatment, refusal to acknowledge mental disorder), but also subjective reactions to prior treatments, therapeutic alliance and prior relationships with treating personnel, experience with adverse effects, and information or misinformation about medication (Ladds & Convit, 1994). In their recent review, Heilbrun and Kramer (2005) have stressed the importance of assessing the role of coercion in a patient’s “decision” to accept or refuse the offered treatment, the importance of assessing the competence of the defendant to refuse treatment, and the critical role that concepts of procedural justice (Greer, O’Regan & Traverso, 1996; Lidz et al., 1995) can have in facilitating the “working relationship” between the treatment team and the patient. Their argument can also be extended to the importance of examining the role of the “alliance” in predicting response to psychopharmacological as well as psychosocial interventions. A number of studies report relationships between poor therapeutic alliance, a prior history of coercive treatment and low insight outcome for both psychosocial and psychopharmacological interventions (Day, Bentall, Robert et al., 2005; Gaudiano & Miller, 2006; Krupnick, Sotsky, Simmens et al., 1996). A final part of the “substantial likelihood of response” prong is focusing on the nature of the defendant’s insight into his disorder. A variety of specialized assessment instruments (Amador, Strauss, Yale et al. [1993]; McEvoy, Apperson, Appelbaum et al. [1989]) can be used to guide inquiry into a defendant’s insight. As part of this assessment, I would also recommend that an examiner consider using the MacArthur Competence Assessment Tool for Treatment (MacCAT-T), a semistructured interview developed by Grisso and his colleagues (see Grisso & Appelbaum, 1998a; 1998b; Grisso, Appelbaum, Mulvey & Fletcher, 1995). Their instrument follows the logic of the MacCAT (discussed below) and focuses upon the individual’s

Evaluations of Adult Adjudicative Competency

83

understanding, reasoning and appreciation with respect to their grounds for treatment refusal. It is a well-designed approach to the assessment of competence to refuse treatment in a civil context and can be adapted to the Sell context. The third Sell prong is a restatement of the court’s holding in Riggins. Essentially, there must be proof that the proposed medication “is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting the trial, thereby rendering the trial unfair” (Sell at 181). If testimony by the defendant is anticipated, examiners should attend to whether or not the defendant, on account of medication, appears to have constricted or hollow affect and whether or not he appears emotionally withdrawn. This is especially important if the defendant is going to testify in the mitigation phase of a death penalty case or in an insanity case (Eisenberg, Garvey & Wells, 1998). Even if testimony is not anticipated, jurors carefully watch the emotional expressions of defendants. Therefore, forensic examiners need to evaluate the range and nature of a defendant’s emotional expressiveness when psychotropic medications are involved. When defendants are medicated, the examiner should also attend carefully to the defendant’s ability to concentrate and to attend to verbalizations since this could impair the ability to assist counsel at trial. Another issue that arises in medicated defendants is the degree to which the defendant is able to recall his mental state at the time of offense when unmedicated. Finally, when a forensic examiner has concerns about the impact of medications on Riggins factors, it is important to consult with the treatment team to investigate whether medications can be reduced or altered. It goes without saying that the examiner’s report, with Pate in mind, should specify the exact medication profile at the time of examination and make clear that, if that profile has been significantly altered, a reexamination of the defendant in that new context would be needed. Informing the court about the nature and extent of Riggins concerns, stressed in both the original case and in Sell appears to be constitutionally mandated32. The fourth Sell prong is the familiar “no less intrusive” interventions likely to achieve treatment response. Here again, there are implications for forensic examiners, but not much of a database upon which to rely. The fourth Sell prong is also familiar in that it stresses that the forced medication must be “medically appropriate,” i.e. based upon knowledge, that the particular drug anticipated to be used is “appropriate” for the treatment of the defendant’s medical condition. This prong is based upon the myth that there exists a body of knowledge that finds a particular drug or drug class as uniquely suited to treatment of a particular diagnosis. Empirically, there is little scientific evidence for such associations and it is common practice to prescribe sequentially. That is, drug selection is not based upon scientific criteria, but rather pragmatics (“Let’s try X1, if that doesn’t work X2, if that doesn’t work X3, if . . . well, let’s try drug combinations.”). This issue is likely to be a front-burner controversy for years to come, but as of now, most courts have paid only lip service to the Sell criteria, accepting unelaborated “Yes, Zyprexa will be substantially likely to render the defendant competent without serious side effect” testimony without scrutiny.33 Only a few courts have engaged in a serious Sell inquiry, and when they do, they get highly perplexing and contradictory testimony34. The assessment of adjudicative competency. Approaches to the assessment of adjudicative competency differ in their theoretical structures, though in practice they

84

Stephen L. Golding

may lead to the same professional conclusion in all but the most difficult cases.35 Some competency assessment instruments, like the revised Interdisciplinary Fitness Interview (IFI-R; Golding, 1993) and Fitness Interview Test-Revised (FIT-R; Roesch, Zapf, & Eaves, 2006) use an idiographic and structured clinical judgment approach. These instruments attempt to structure evaluations directly around an articulation of psycholegal abilities associated with competency evaluations as viewed through the lens of a comprehensive review of leading competency cases (See Table 4.1). Assessment approaches of this type concentrate on those psycholegal abilities that are most relevant to a particular context (see Skeem & Golding, 1998). Although each of the psycholegal abilities is “scored,” this scoring is only meant to convey the relative importance of deficits in a particular area to the evaluator’s integrated conclusions. The scores are not meant to be summed and are not assumed to comprise a homogeneous scale. The other approach to competency assessment focuses on competency as a normative construct. The most highly studied instrument of this type is the MacArthur Competence Assessment Tool-Criminal Adjudication (MacCAT-CA; Hoge, Bonnie, Poythress, & Monahan, 1999; Poythress et al., 1999), which assesses the competency construct by focusing on three hypothesized lower order constructs: understanding, reasoning and appreciation (Bonnie, 1992). It produces criterion-based scores for each lower order construct based upon summing item scores. The scales are meant to be homogenous, and scores are referenced to a normative sample. In reality, the MacCAT-CA has also an idiographic component in that scaled scores are interpreted in light of the evaluator’s integrated judgment that includes case-specific facts and the defendant’s clinical presentation. A more detailed review of each of these approaches follows, but it is important to note that the extent to which either of these contemporary approaches better captures the open-textured nature of competency is an open empirical question. The question remains open because, with the exception of Golding, Roesch and Schreiber (1984), who compared an earlier version of the IFI with the CAI, and Zapf and Roesch (2002) who compared the FIT-R and the MacCAT-CA, no study has examined the comparative validity and utility of commonly used assessment strategies. The implications of this lack of comparative validity research are discussed subsequently.

Conceptualizing and performing a competency evaluation Selecting an assessment strategy. Many excellent resources exist for the practitioner interested in understanding different assessment models for a competency evaluation (Grisso, 2003; Roesch et al., 1999; Skeem, Golding & Emke-Francis, 2004; Zapf & Viljoen, 2003). In reality, no one model or device suffices, so in supervision, I encourage professionals to develop their own professional identity by crafting a methodology that reflects both professional practice standards and their own views. Trying out the models of others is merely a starting place. What matters most is that the practitioner can present to the court a systematic procedure, part of which is formulated on known reliable and valid methods.36 A competency assessment involves both an assessment as to current psychopathological symptoms or cognitive deficits and an

Evaluations of Adult Adjudicative Competency

85

TABLE 4.1 Adjudicative Competency Domains37 and Subdomains 1.

Capacity to comprehend and appreciate the charges or allegations a. Factual knowledge of the charges (ability to report charge label) b. Understanding of the behaviors to which the charges refer c. Comprehension of the police version of events

2.

Capacity to disclose to counsel pertinent facts, events, and states of mind a. Ability to provide a reasonable account of one’s behavior around the time of the alleged offense b. Ability to provide information about one’s state of mind around the time of the alleged offense c. Ability to provide an account of the behavior of relevant others around the time of the alleged offense d. Ability to provide an account of police behavior e. Comprehension of the Miranda warning f. Confession behavior (influence of mental disorder, suggestibility, and so forth on confession)

3.

Capacity to comprehend and appreciate the range and nature of potential penalties that may be imposed in the proceedings a. Knowledge of penalties that could be imposed (e.g., knowledge of the relevant sentence label associated with the charge, such as “5 to life”) b. Comprehension of the seriousness of charges and potential sentences

4.

Basic knowledge of legal strategies and options a. Understanding of the meaning of alternative pleas (e.g., guilty and mentally ill) b. Knowledge of the plea bargaining process

5. Capacity to engage in reasoned choice of legal strategies and options a. Capacity to comprehend legal advice b. Capacity to participate in planning a defense strategy c. Plausible appraisal of likely outcome (e.g., likely disposition for one’s own case) d. Comprehension of the implications of a guilty plea or plea bargain (i.e., the rights waived on entering a plea of guilty) e. Comprehension of the implications of proceeding pro se (e.g., the rights waived and the ramifications of waiver) f. Capacity to make a reasoned choice about defense options (e.g., trial strategy, guilty plea, proceeding pro se, pleading insanity) without distortion attributable to mental illness (an ability to rationally apply knowledge to one’s own case) 6.

Capacity to understand the adversary nature of the proceedings a. Understanding of the roles of courtroom personnel (i.e., judge, jury, prosecutor) b. Understanding of courtroom procedure (the basic sequence of trial events)

7.

Capacity to manifest appropriate courtroom behavior a. Appreciation of appropriate courtroom behavior b. Capacity to manage one’s emotions and behavior in the courtroom

(continued)

86

Stephen L. Golding

TABLE 4.1 Adjudicative Competency Domains37 and Subdomains (Continued) 8. Capacity to participate in trial a. Capacity to track events as they unfold (not attributable to the effects of medication) b. Capacity to challenge witnesses (i.e., recognize distortions in witness testimony) 9. Capacity to testify relevantly 10. Relationship with counsel a. Recognition that counsel is an ally b. Appreciation of the attorney-client privilege c. Confidence in and trust in one’s counsel d. Confidence in attorneys in general e. Particular relationship variables that may interfere with the specific attorney–client relationship (i.e., attorney skill in working with the client; problematic socioeconomic or demographic differences between counsel and client) 11. Medication issues a. Capacity to track proceedings given sedation level on current medication and to communicate with counsel b. Potentially detrimental effects of medication on the defendant’s courtroom demeanor c. Likelihood of treatment response; treatment response history; therapeutic alliance d. Bases for treatment refusal

assessment of the linkage, if any, between these and the psycholegal abilities that constitute competency (Skeem & Golding, 1998). Competency examiners, unlike clinical mental health professionals, need to be trained in both assessment domains. Although a traditional comprehensive evaluation of a defendant’s psychopathology and cognitive deficits, involving psychological tests,38 diagnostic interviews and so forth would be desirable in a competency evaluation context, the pragmatic reality of most community based evaluations is that a truncated version of such a clinical evaluation is often necessary.39 For this reason, many competency examiners utilize prior mental health records (which almost always exist in a meaningful referral) and various screening strategies to concentrate their efforts in the “clinical phase” of a competency evaluation. Examination of prior mental health records in the pre-interview stage (see below) helps set up likely areas of inquiry, screening and subsequent focused evaluation. Little attention has been paid to this problem in the forensic assessment literature, and a review of screening strategies40 in a competency context is needed (DeClue, 2003). Informative reviews of these and other instruments may be found in First (2003) and Rogers (2001; 2003). Much has been written about the uniqueness of forensic examiner training. An essential component of this uniqueness is the need to utilize specialized forensic assessment “tools” (Grisso, 2003; Heilbrun, 2001; Skeem, Golding, & Emke-Francis, 2004). All existing forensic assessment instruments are “tools” in the sense that none are meant to be solely relied upon because the assessment of competency is highly contextualized, and results from one source of information are only data that need to be integrated with other data and the context in arriving at a competency judgment.

Evaluations of Adult Adjudicative Competency

87

For example, the MacArthur Competency Assessment Tool-Adjudicative Competency (MacCAT-CA, Poythress et al., 1999) is the most psychometrically sophisticated of available competency assessment devices, but its authors specifically state that it is not meant as a “test” for competency and its nomothetic results must be integrated with facts from the case context and the individual’s specific psycholegal abilities. Among the principal forensic tools that are most commonly recommend by forensic professionals in competency examinations (Lally, 2003) are the Competency Assessment Interview (CAI; McGarry, Lelos & Lipsitt, 1973), the Interdisciplinary Fitness Interview-Revised41 (IFI-R; Golding, 1993); and the MacCAT-CA (Poythress et al., 1999). Comprehensive reviews of the strengths and weaknesses of these tools may be found in Grisso (2003), Skeem et al. (2004), Zapf and Viljoen (2003), and Zapf and Roesch (2005). Recently, Rogers and his colleagues have introduced the Evaluation of Competency to Stand Trial-Revised (ECST-R; Rogers, Tillbrook & Sewell, 2004). Some brief comment about these instruments and their comparison is necessary. The CAI and the IFI-R are fundamentally semistructured interviews designed to help examiners explore the domain of psycholegal abilities associated with competency. The IFI-R is a revision of the original IFI (which, in part, was a revision of the CAI). The CAI examined 13 psycholegal abilities that McGarry and his colleagues had identified from a review of the forensic literature and existing case law. It was a ground-breaking development in forensic tools for competency evaluations and is still widely used. The original IFI was developed because the CAI did not completely span the construct of competency as it was currently understood and did not focus on the linkage between competency and psychopathology42. The IFI-R represents a subsequent update, revised to include a more extensive linkage analysis and other psycholegal abilities associated with more modern competency cases such as Riggins and Godinez. Thus, in addition to the traditional areas of psycholegal abilities, such as understanding the role of court personnel and court processes, the IFI-R adds examination of the iatrogenic effects of medication,43 decisional competency with respect to rational choice of legal strategy, and competency to plead guilty or pro se. The 35 specific psycholegal abilities, organized into 11 more global domains, that constitute the IFI-R are depicted in Table 4.1. For each psycholegal ability, the IFI-R guides examiners through suggested inquiries meant to explore the linkage, if any, between psychopathological symptoms or cognitive deficits and impairment in each domain44 The IFI-R approach is very similar to the structured clinical judgment paradigm45 advocated by many in the debate about approaches to risk assessment (actuarial versus structured clinical judgment methods). Each domain can be “scored” as to degree of impairment, but the scores are specifically not designed to be summed into a “competency score.” The MacCAT-CA was developed based upon Bonnie’s (1992) conceptualization of competency as involving three key domains: understanding, reasoning and appreciation. The first two domains are assessed via 16 items that reference a short vignette describing a fight and subsequent criminal charges. The understanding items reflect understanding of core aspects of the legal system, and examiners are permitted to inform defendants about mis-understood details and then assess understanding again.46 Reasoning is assessed by probing if the defendant can identify the relevancy of

88

Stephen L. Golding

information that is presented about the hypothetical case. The remaining appreciation items use the context of the defendant’s case to inquire principally into psychopathological or delusional states that would lessen the defendant’s appreciation of his specific case and case facts. Norms based upon a national sample of competent and incompetent defendants are available. The first two domains, understanding and reasoning, make sense to look at nomothetically, as they are based upon a standardized vignette. The appreciation norms, based on judgments of appreciative capacity in the defendant’s specific context, are really nothing more than judgments about that defendant’s abilities, similar to the structure of the IFI-R or the CAI. Despite the MacCAT-CA’s normative structure, its authors caution against using the three scale scores to determine competency. They stress that it is a “tool” to be integrated with clinical data and contextualized judgment. Rogers, Tillbrook, and Sewell. (2004) have recently introduced the Evaluation of Competence to Stand Trial -Revised (ECST-R). The ECST-R is “hybrid”47 interview protocol designed to measure the “prongs” of the Dusky standard. It groups items into three global domains, Consult with Counsel (CWC), Factual Understanding of Court Proceedings (FAC) and Rational Understanding of Courtroom Proceedings (RAC). Each item is scored by the examiner based upon standardized questions. The ECST-R also contains a scale, termed Atypical Presentation, based upon a structured protocol and designed to detect malingering in the competency context. Rogers and his colleagues have presented encouraging data on the factor structure of the ECST-R, the internal consistency of the scale scores, and interrater reliability (Rogers, Jackson, Sewell et al., 2003) and on the ability of the ATP scale to detect feigned incompetency (Rogers, Jackson, Sewell & Harrison, 2004). The ECST-R, like the MacCAT-CA, is a normative instrument though it is rather different in its approach to the development and scoring of competency domain items. The differences are reflected in empirical data presented by Rogers, Tillbrook and Sewell (2004) who report that the ECST-R and the MacCAT-CA have only modest convergent validities, at a scale level, that range from 0.32 to 0.55. The ECST-R has a great deal of appeal for examiners working in strict Dusky jurisdictions, but is based upon a strong normative assumption that is not widely held in the field. Scores within each domain are based upon summing items48 within the domain and converting the total to a T-score that is then interpreted in a standard fashion. Scores on CAC and RAC are also summed and converted to T-scores. While examiners are permitted to integrate these scores with contextualized data, they are explicitly encouraged to rely upon the T-scores because such interpretations will then be accompanied by “known error rates.” This is a strong normative assumption that runs contrary to what appears to be the mainstream consensus that competency is a multifaceted construct that needs to be assessed in a contextualized fashion. Moreover, there is widespread agreement that severe impairment in only one area, despite no impairment in a broad range of areas, may be grounds for a finding of incompetency. Comparative validity and the problem of “grey area” cases. Unfortunately, little research on the comparative validity of various competency assessment approaches is available to guide forensic examiners in their selection of tools. In addition, the existing validational studies mostly use a contrasted groups design, which arguably inflates the discriminant validities (see Zapf, Skeem & Golding, 2005). For example,

Evaluations of Adult Adjudicative Competency

89

the MacCAT-CA validational sample was a “weak comparison” because it compared individuals for whom there were no competency issues raised with a group who were adjudicated incompetent. The ECST-R was validated by comparing judged “genuinely” incompetent defendants with judged “feigning” or simulated “feigning” defendants. These are weak tests of the instruments’ construct validity. An additional difficulty with existing validational studies not using a contrasted groups design is that they use an unselected Pate referral stream. It is well known that approximately 70 to 80% of all individuals referred for competency evaluations are found competent (Roesch & Golding, 1980; Roesch, Zapf, Golding, & Skeem, 1999) and that the majority of competency evaluations are relatively simple determinations (Melton, Petrila, Poythress, & Slobogin, 1997; Roesch et al., 1999). Hence, the “subject pool” contains a relatively high proportion of clear-cut cases of competent defendants (CC). In addition, the referral stream also contains a small number of acutely psychotic, untreated, highly disorganized and most likely clearly incompetent individuals (CI). Thus, statistically, most validational studies are weak tests and almost any instrument with some degree of criterion validity is going to look like it is highly accurate.49 Thus, a comparative validity study among instruments in this referral stream would show at least moderate convergence by chance. In fact, even inappropriate forensic assessment approaches will look reasonably “good.” For example, a simple screen for absence of psychotic symptoms or presence of gross thought disorganization would be reasonably accurate in predicting competency status. A more meaningful validational study or a comparison of competency assessment instruments would be in a “winnowed” pool, where clear-cut competent and incompetent cases have been ideally removed, but in reality, reduced, in proportion. Thus, future validational studies of whatever type should concentrate on examining their psychometric characteristics with the “tough sample.” Conducting a competency assessment. The comments and observations that follow build upon the Interdisciplinary Fitness Interview-Revised manual and reference the domain of psycholegal abilities referenced in Table 4.1. A competency evaluation can be thought of as occurring in a series of stages, loosely based upon Sullivan’s (1953) conceptualization of a clinical interview. Pre-interview stage. What one does before a competency evaluation is as critical as the evaluation itself. Regrettably, most jurisdictions’ competency statutes do not require or facilitate the routine provision of critical materials to the evaluator, and so this must be done on one’s own50. This stage essentially involves developing an individualized “road-map” of “this defendant, facing these charges, in light of existing evidence, anticipating the substantial effort of a particular attorney with a relationship of known characteristics” (Golding & Roesch, 1988, p. 79). “This defendant” means that one knows the defendant’s mental health, and criminal/ forensic history in sufficient detail to perform a meaningful evaluation. Many presumptively incompetent psychotic defendants will not be able to provide this information during an interview, and other defendants may be either unreliable historians or will deliberately “shade” their histories. Of course, complete mental health histories will rarely be available at the pre-trial competency evaluation phase of an adjudication. Nevertheless, a minimum is a discharge summary, treatment history, and social history from the most recent mental health contact, if such exists. If the individual

90

Stephen L. Golding

does have a mental health history, especially in a nonforensic context, then one can perform a targeted evaluation of core symptoms and problematic patterns. A competency evaluation includes an assessment of the potential for malingering, symptom or problem minimization (especially with retarded defendants), and for other problematic response styles (see below). There is a sufficient database concerning the longitudinal development of psychopathology to compare what this defendant claims with what is likely given his/her known history. Mental health history also provides a basis for judging the likelihood of competency restoration. In respect to criminal history, a minimum is either a state or federal summary of prior charges and dispositions. An individual with a history of many criminal justice contacts can be expected to present very differently from an individual with no prior contacts with the criminal justice system. In addition, knowledge of an individual’s criminal history will facilitate smoother segues during the detailed inquiry and linkage analysis stage by asking the defendant to compare his current situation to a prior situation. Knowledge of a defendant’s forensic history is also critical, in that it provides invaluable information about prior symptom-impairment links, response to treatment, especially in an involuntary treatment context, prior problems in forming therapeutic alliance (see discussion of Sell) and malingering potential. Although it is rarely possible to obtain a complete forensic history in a typical pre-adjudication competency evaluation context, a minimum would be the most recent forensic evaluation. These can be obtained by the moving party either directly or through the mechanism of a court-ordered disclosure. “These charges,” “existing evidence,” and “substantial effort of a particular attorney” translate into a series of pre-evaluation inquiries. One must obtain the charging document and a precis of the state’s evidence so that an informed evaluation can be made of the defendant’s understanding of the charges. Consultation with the moving party (to clarify case conceptualization, the range of trial strategies, and what problems they have encountered in trying to represent this defendant) is necessary to evaluate the “rationality” of the defendant’s reasoning about trial strategy in light of existing evidence. Inception stage. As with any clinical interview, one goal of the inception is to establish rapport with the defendant, to the extent that this is possible. However, a forensic interview differs from a clinical interview in many respects (Greenberg & Shuman, 1997) and establishing rapport may be difficult because the “client” is the court who has ordered the evaluation, sometimes over the objections of the defendant. Defense attorneys have sometimes raised the competency issue against the wishes of the defendant, and at other times, the defense attorney may have “warned” the defendant that you are an “agent” of the prosecution. For whatever reason, it is not uncommon for the defendant to adopt a resistant or hostile stance towards the evaluator. In such situations, it is important to strive to maintain countertransferential neutrality and to communicate to the defendant respect for, but disagreement with, his perceptions that the relationship is adversarial in nature. While it is not necessary to obtain the consent of the defendant in the context of a court ordered evaluation, it is professionally required that one attempt to obtain informed assent and to describe the limits of privilege51 in the form of a “forensic

Evaluations of Adult Adjudicative Competency

91

warning” (see the American Psychological Association’s [2002] Ethical Principles of Psychologists and Code of Conduct; and Specialty Guidelines for Forensic Psychologists [Committee on Ethical Guidelines for Forensic Psychologists, 1991]). This warning has a long legal history and is based upon a defendant’s Fifth Amendment right to avoid self-incrimination (Estelle v. Smith, 1981). A detailed inquiry often results in various statements by the defendant that are tantamount to a confession or contradict subsequent trial testimony. While the prosecution may not introduce information obtained during a court ordered competency evaluation at either the trial or guilty phase, there is a gigantic exception to this, often styled as a “waiver” when the defendant is deemed to have placed his mental state into evidence. Explaining the rather complex nature of this legal waiver and limits of privilege is difficult to do with competent adults, and becomes oxymoronic with individuals who are currently psychotic, manic, or have even moderate developmental disabilities. The process of attempting to obtain assent and understanding with these individuals is, in and of itself, an extremely valuable assessment window into their underlying competencies. I encourage the use of a “process approach” (see Stiles, Poythress, Hall, Falkenbach, & Williams, 2001) as opposed to a fixed warning language or a prepared statement to be signed. A process approach involves repeated cycles of explanation of the privilege and its limits, in both abstract and concrete ways, assessing the defendant’s understanding, providing further clarifying information, eliciting and responding to questions, and reassessing understanding. This approach is especially important in interviewing defendants facing severe penalties. For example, with capital murder defendants, I use the opportunity to explain how less forthcoming or exaggerated reports can backfire in the context of waiver and competency interviews. Thus, after the competency evaluation and the guilt phase of a trial, any attempts to introduce mitigating psychological evidence, such as physical and sexual abuse as a child, will “blow up” in the defendant’s face if he engages in a somewhat natural tendency to exaggerate the nature of his childhood abuse during a competency evaluation. When later contradicted by evidence at the penalty phase, the trier of fact is left with the impression that the defendant has a general habit of untruthfulness, which may undercut other claims. The inception phase also offers an opportunity for informal assessment of a number of other important issues. I routinely play down my knowledge of the defendant and his history in order to elicit free narratives. Such free narratives, as opposed to responding to direct questions or option-posing questions, allow for an assessment of the defendant’s linguistic abilities, memorial capacities, interpersonal style, and possible deceptive strategies. The reconnaissance phase. This phase obtains data that is critical to the subsequent linkage analysis that is at the heart of a competency evaluation. Having foreknowledge of a defendant’s mental health history allows for a more targeted evaluation of relevant psychopathology. Although it is a matter of chosen style, I prefer to “mix” psychopathological and psycholegal reconnaissance. The goal is to obtain an overall picture of the defendant’s psychological and psychopathological strengths and weaknesses, as well as their psycholegal abilities, in order to determine which areas are in need of the detailed inquiry that follows in the next phase. Areas of psychopathological

92

Stephen L. Golding

difficulties and their links to psycholegal abilities are successively probed in context. An illustrative sequence might be as follows: Evaluator: “Tell me everything you can about what happened prior to your arrest.” Defendant: [Short narrative that includes, “Before I went over to her house, I smoked part of a joint.”] E: [Loop into history and extent of all substance abuse; segue to relationship to criminal/forensic history] E: “Have you ever done anything that got you into legal trouble while you were high?” D: [Relates three Driving Under the Influence charges; segue to understanding certain aspect of legal system] E: ”What was the outcome of those charges?” D: [Relates one charge dropped, one resulted in fine and some jail time, last one put on probation with conditions by mental health court] At this point, the examiner would choose a segue to one of several relevant lines of inquiry. For example, psychopathological history, treatment and outcome history, psycholegal abilities such as understanding available pleas, possible relevance of intoxication to alleged charge and so forth. After looping through these, the examiner would return to the main theme. E: “OK, I understand a lot more now about how drugs have affected your life. Let’s get back to the day of the incident. Tell me more about what you did before you went over to her house.”

If, in describing his prior arrest and plea bargain to have charges stayed and placed under the supervision of mental health court, it was clear that the defendant understood the basic roles of court personnel, it might prove unnecessary to probe this part of the domain of psycholegal abilities further, except for a brief follow up to check for contextual differences: “Do you think there is anything different about the role of the judge, prosecutor, or your defense attorney in this case?” Thus, rather than adopting a fixed structured interview style that examines each area sequentially as dictated by some manual, I believe that more “connected” interviews can be achieved by knowing the domains of questions well enough to flexibly flow from one topic to another, making sure that ultimately all psycholegal areas depicted in Table 4.1 have been probed52. At the end of the reconnaissance stage, the psycholegal abilities, potentially linked to psychopathological/cognitive symptoms, that are “in play” should be quite clear to the examiner and are probed in depth in the next phase. The detailed inquiry stage. Little research exists on the important topic of why defendants are evaluated or adjudicated as incompetent. Skeem et al. (1998) found that, although examiners show relatively high overall rates of agreement as to final judgments of incompetency, they were wildly discrepant in their reasons for finding an individual incompetent. I believe this is so because examiners often fail to probe the clear “linking logic” that connects symptoms and psycholegal abilities. Skeem et al. (1998) and Skeem and Golding (1998) forcefully demonstrated the general lack of “linking logic” in a random sample of competency evaluations. Thus, the most critical phase of a competency evaluation, the detailed inquiry, focuses on that linking logic. The issue of linkage basically comes down to providing the trier of fact

Evaluations of Adult Adjudicative Competency

93

with the logic that connects and substantiates the psychopathological data with the psycholegal conclusion about impairment in a relevant psycholegal ability. For example, suppose a defendant suffers from paranoid schizophrenia and his symptoms are partially controlled by antipsychotic medication. A conclusion that he is incompetent on account of his being psychotic is completely without any linking logic. A conclusion that he is incompetent because he (genuinely) has a delusion that there is a government conspiracy against him and the prosecutor, as a government agent, is part of that conspiracy is closer, but still lacks linking logic. A conclusion that he is incompetent because, on account of his delusion that the prosecutor is conspiring against him, he believes that the plea bargain53 offered, which he “understands,” must be rejected because the prosecutor cannot be trusted, even though the offer is in writing, is closer still. A conclusion that he is incompetent because, in addition to the above, he believes that attempts by his defense counsel to explain the “pros and cons” of accepting the plea bargain prove that the defense counsel is also part of the conspiracy, and that therefore he intends to represent himself and call the head of the CIA as a witness pretty much hits the nail on the head. The point of the detailed inquiry is to examine each of the identified potentially problematic psycholegal abilities in terms of how they relate to the individual’s psychopathology and/or cognitive impairment. Implicit in the linkage analysis is a consideration of whether or not the observed deficit is more closely linked with other causes than the defendant’s psychopathology. That is, the examiner must consider plausible rival hypotheses (Skeem & Golding, 1998). Assessment of malingering and deception. The concept of malingering, deception and other problematic presentation styles covers a wide territory ranging from minimization of pathology, through exaggerated pathology to feigned pathology (see Rogers [1997] for a detailed review). Clinical psychologists are accustomed to assessing this psychometrically with validity scales from the MMPI-2 or the PAI (see, for example, Arbisi & Ben-Porath, 1998; Bagby, Nicholson, Bacchiochi et al., 2002; Berry, Baer, Rinaldo, & Wetter, 2002; Edens, Cruise & Buffington-Vollum, 2001). Given the desirability of examining converging information sources,54 using the psychometrically sound validity indices from these instruments makes sense, when they are available or it is feasible to administer these instruments55. This is routinely done in inpatient evaluation contexts, but infrequently done in outpatient evaluations. Regardless, it is also necessary to assess malingering from a clinical interviewing perspective (for interview strategies for malingered psychosis see Resnick [1997] as an example) and to consider use of specialized forensic assessment instruments such as Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, 1992). The SIRS systematically assesses feigning of symptoms using a variety of interview strategies such as rare symptoms, and improbable symptom combinations to identify various deceptive strategies. It takes between 30 min. and an hour to administer, and is considered by most forensic psychologists to the “gold standard” (Lalley, 2003). The same logic that produced the SIRS has also been used by Rogers to develop the Atypical Presentation Scale of the ECST-R. It is unfortunate that no studies exist on the detection of malingering in forensic contexts with sophisticated defendants. That is, although research suggests that many malingering cases can be reliably detected by these sorts of instruments (Rogers et al., 2004), the populations

94

Stephen L. Golding

studied have been based on either simulation designs or contrasted groups involving “likely malingerers.56” The problem with this research is that the items on the SIRS or the Atypical Presentation Scale are rather obvious to sophisticated malingerers. In addition, there is some reason to believe that scores on these instruments are unduly influenced by intelligence and suggestibility (Pollock, 1996). Recently, Hurley and Deal (2006) have shown disturbingly high false positive rates in assessing malingering with either the SIRS or the TOMM57 (Tombaugh, 1997) in mentally retarded nondefendants, even when instructed to perform optimally A newly developed instrument, the Miller Forensic Assessment of Symptoms (M-FAST, Miller, 2001) is based upon the SIRS logic, though it is shorter and designed as a screening instrument. Early validity and reliability data appear promising (Miller, 2004; Zapf & Galloway, 2002). Regardless of the approach taken, evaluation of malingering is necessary in all competency evaluations. The examiner should seek converging sources of data from traditional and forensic assessment devices,58 and integrate that information with clinical observation. In addition to the methods described above, detailed observation of individuals in inpatient settings and jails, when possible, provides invaluable information. Finally, a modicum of common sense is helpful. If one knows the individual’s criminal justice and mental health history in detail, claimed impairments can be evaluated in a more meaningful context. Assessment from a multisource perspective. Heilbrun (2001) and Skeem et al. (2004) have appropriately stressed the importance of integrating “third party” information into a competency evaluation. Police reports are important and should be compared with the defendant’s ability to recall critical aspects of the alleged crime and surrounding behavior. Claims of amnesia are common and should be rigorously pursued from a multisource perspective, not relying upon the defendant’s claim.59 Police reports also help to frame the critical evidence against the defendant and hence form the basis for inquiry into the defendant’s ability to engage in rational choice of defense strategy. They also allow an investigation into the defendant’s ability to provide relevant information to counsel (see Table 4.1). Information should also be obtained from defense counsel concerning contextual aspects of the case (i.e., what is likely to be required of the defendant), the nature of counsel’s interpersonal interactions with the defendant, and the nature of counsel’s interactions with the defendant that led to a Pate doubt. Criminal history records provide a glimpse into the defendant’s experience with the criminal justice system and the defendant’s past psycholegal abilities. Mental health records provide both an opportunity to target likely realms of psychopathology, as well as important information relevant to the assessment of malingering. An examiner’s report that stresses multisourced data and carefully links that data to conclusions is the goal. Examiners should also be aware that use of third party or collateral information is potentially problematic at the guilt phase of a trial, since an argument can be made that reliance upon such data violates a defendant’s right to confront and cross-examine witnesses against him (see People v. Goldstein [2005] for an insightful discussion of this issue). It is for this reason that the original Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines, 1991) and its proposed revision (American Psychology-Law Society, 2006) stress the

Evaluations of Adult Adjudicative Competency

95

importance of carefully documenting and attempting to corroborate such collateral data that form a critical aspect of one’s opinion60. Termination of the examination. A number of defendants directly ask about the examiner’s opinions at the end of an interview. Opinions about how to handle this vary widely. If the examiner has a fairly clear idea as to what will be communicated to the court and defense and prosecution counsel, I believe it is permissible to communicate the essence of one’s opinion (obviously, in an appropriately tentative fashion). If one has not yet formed an opinion, this too can be communicated. I routinely ask defendants at this stage if there are any questions they have of me. Clearly one cannot respond to questions outside of one’s knowledge or competence (“Do you think I’ll end up serving time?”), but legitimate questions can be answered (“If the judge finds me incompetent, what is likely to happen?”). Treating the defendant with dignity in this manner helps to preserve the possibility of reasonable rapport with future examiners. Both Section 9.10 of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) and Section 12.05 of the proposed revision of the Specialty Guidelines for Forensic Psychology (American Psychology-Law Society, 2006) require such feedback (unless prohibited by law of the jurisdiction or institution), although the SGFP provides somewhat more detailed and helpful guidance. A thorny issue that sometimes emerges at the end of an interview has to do with the individual who has communicated reasonable grounds for believing he or someone else is at risk or who appears to be either not treated or inappropriately treated. Although the examiner is not in a clinical relationship with the defendant as client, I believe that professional standards of practice would require some reasonable action on the part of the forensic examiner. The closest any ethics code comes to addressing this issue in a forensic context is Section 6.05 of the proposed revised Specialty Guidelines (American Psychology-Law Society, 2006). Essentially, one should inform the party who has retained the examiner’s services (e.g., attorney, legal representative, court) of one’s concerns and the basis for them. Depending upon the jurisdiction, reasonable belief that there is a risk of imminent harm to another may require other actions as well. Case Example Because it illustrates a number of the basic points of this chapter, I have chosen the case of Brian David Mitchell, the alleged kidnapper of Elizabeth Smart. All of the details in this section, including the data sources relied upon, methodologies, and the logic and conclusions of all three examiners are in the public domain as part of Judge Atherton’s opinion, available on the Internet (Atherton, 2005). All forensic reports in this case are sealed. No aspect of those reports, not contained in Judge Atherton’s opinion, nor any other detail of the case, even those testified to in open court, are included in this section. Essential case facts. Mitchell is alleged to have broken into the Smart’s home, kidnapped Elizabeth, taken her as his plural wife, sexually assaulted her, and taken her across state lines. He and his then-current wife (Wanda Barzee) were arrested when they returned to Salt Lake City with Elizabeth a little less than a year later. Mitchell was referred for a competency evaluation on account of his seemingly bizarre beliefs

96

Stephen L. Golding

and unwillingness to discuss critical case and mental state issues with counsel. Mitchell refused to talk with the court-appointed examiners despite several attempts to do so. After we each evaluated Mitchell using different methodologies, I opined that he was incompetent and Dr. Gardner opined the opposite. Prior to a hearing, defense counsel privately retained Dr. Skeem, and at that time Mitchell was willing to speak with her. She ultimately opined that despite serious concerns, she considered him “situationally competent” to proceed in a very specific context [pursuing a plea bargain] and needing to be reevaluated if any significant change in context occurred. Subsequently, Mr. Mitchell had a revelation that Satan was trying to trick him into accepting the plea bargain. Dr. Skeem notified counsel that she now doubted his competence even on the original narrowed grounds, and counsel moved for another reevaluation of Mitchell under Pate (deterioration of mental condition), and he was reevaluated by all three examiners, though he now refused to speak with Dr. Skeem. Dr. Skeem and I ultimately opined that he was delusional and incompetent, and Dr. Gardner opined that he was still competent, although he had a severe narcissistic personality disorder. Refusal of interview. May a forensic examiner ethically opine on a psycholegal issue if the defendant refuses an interview? Yes, but only under special circumstances: a) a sincere attempt to obtain interview data must take place; b) the opinion must be appropriately conditioned as to limits of reliability and validity; and c) a database sufficient to support the conditioned opinion must exist (see relevant ethical principles). This situation is not unusual in competency and insanity evaluation contexts with delusional defendants, those who lack insight into their psychosis (agnosognosia), or certain individuals with extreme political or religious beliefs. In this case, I agreed to attempt the evaluation, and after interviewing a variety of family members and individuals who knew Mitchell over the years, reading a number of his writings (both before and after arrest), watching a detailed interview of Ms. Smart (who was a remarkable historian of Mitchell’s conversations with her and events) and FBI interviews of Mitchell immediately after his arrest, reading Ms. Smart’s diary and reviewing prior mental health and social records (a complete list of all examiners’ sources is in the Court’s opinion), I decided that I could satisfy Utah’s burden of proof (preponderance of the evidence) in conjunction with professional standards. Framing the case-specific competency issues. Mitchell’s writings as well as videotapes and interactions with counsel left no doubt that he was quite intelligent and theoretically had no difficulties with various foundational psycholegal abilities. For example, he clearly knew, in one sense, the role of the judge, prosecutor, and defense counsel. However, in a more meaningful sense, as applied to him, there was a question of his competency in that regard because he believed that Satan especially worked through “good people” and that he had to be especially vigilant for “signs” that these people were not acting on behalf of Satan. Thus, he came to question the motives of the prosecutor (and his defense counsel, and ultimately Dr. Skeem) because he saw signs that this was the work of Satan who was tempting him to accept the plea bargain instead of following God’s revelation that he was the “Davidic King” (the messiah) who needed to be martyred in order to bring on the battle between himself and the Anti-Christ. Similarly, he “knew” that Judge Atherton could sentence him essentially to a life term if he was found guilty, but he believed that no defense was permissible, as he “must endure sacrifice for the salvation of the righteous and must suffer a symbolic martyrdom by passively submitting to being convicted and incarcerated” (Atherton, p. 21). Besides, if God willed it, as He had done with Peter and Paul, he would be released within a specified time interval. Obviously, considerable doubt existed as to decisional competencies (allowing himself to be defended, making rational choice of defense strategies, and so forth). It was clear to all that the competency issue essentially

Evaluations of Adult Adjudicative Competency

97

rested on one issue: Was his belief system delusional, or was it merely an extreme form of religious belief? If the former, then many domains of his psycholegal abilities might be compromised, and if the latter, then his “choices” were unusual or extreme, but the result of extreme narcissism, not mental disorder. Distinguishing delusion from extreme belief and linkage to competency. I had confronted this issue in a prior case and, in conjunction with Dr. Skeem (who was then a graduate student), worked on a logic to address this issue. An early version of this was published as part of a forensic assessment chapter (Golding et al., 1999). Since then, additional empirical and clinical data have become available to guide decision making. Nevertheless, the issue remained such that it was important to stress to the Court that “differentiating (extreme religious belief, overvalued ideas, and delusionality) is fraught with difficulty and that no one can claim the ability to do so with great certainty or reliability” (Atherton opinion, p. 28). This case therefore illustrates the core point of this chapter that it is the linkage between data and conclusion, and the logic of that linkage, that is central to a forensic evaluation. The essence of the (publicly available) data and the linkage analysis was as follows. Some of Mitchell’s religious beliefs (personal revelation) are mainstream beliefs within the Church of Jesus Christ of Latter Day Saints (LDS); others, such as the need to reestablish plural marriage, have been abandoned by the LDS Church and are considered apostate, although held by a significant minority of “fundamentalists”; others, such as a need to be martyred to bring about the final battle with the Anti-Christ, or that the Anti-Christ will be financed by the World Bank, are extreme and rare, but not totally unique; finally, some, such as that he is the “Davidic King” or that he must capture, when indicated by God through certain “signs,” particular young women to become his plural wives to build his kingdom, are totally unique and shared only by him and Ms. Barzee.61 It would be “shaky” to use the mere content of these unique beliefs (even though they pushed the limits of subcultural “normativeness,” in that only he and his wife had these beliefs) as a grounds for diagnosing delusional disorder. Modern thinking, along with some research (see Pierre, 2001) suggests that content of belief is less important than the process or manner of belief, and that degree of preoccupation, deterioration in social functioning, and distress on account of the delusion are factors that help differentiate delusion from extreme beliefs. In addition, new research and clinical observations exist on the nature of the prodromal development of psychosis (see Møller & Husby, 2000; Stanton & David, 2003). Integrating these literatures illustrates both the multisource and linkage principles discussed in this chapter. Public data and linkage analysis. Starting in early adolescence, Mitchell began to exhibit odd “aggressive, cruel, and sadistic” behavior and speech towards his siblings, felt that his mother was trying to poison him, and that fumes from autos would infect him. Around this time, multiple family members also described a change from his childhood personality, particularly withdrawing and isolating himself. When he exposed himself to an 8-year-old, a psychological evaluation was performed and he was diagnosed as a “behavior disorder of adolescence—withdrawing reaction with some paranoid tendencies” (Atherton, p. 9). Despite recommendations, there was little follow up by Mitchell, his family or the state. He became heavily involved with alcohol and drugs and dropped out of high school. As a young adult, he became deeply involved with religion and “embarked on a selfdescribed search for God,” “sampling” Hare Krishna, various Protestant faiths, Christian Science, and Buddhism. He subsequently had a “conversion” experience, returned to the LDS Church, obtained his GED, took university courses, and was socially involved with

98

Stephen L. Golding

friends and family. After a tumultuous second marriage and divorce, he met and married Ms. Barzee, became very involved with the mainstream LDS Church, and held several positions of responsibility. He was also regularly employed. He thus achieved a fairly high level of social, interpersonal, and vocational functioning for a number of years. After a few years, “Family members recall that [he] became more preoccupied with religious ideas and describe him as self-righteous and increasingly adamant that he had a ‘special role’ . . . [they] began to isolate themselves from their families. When family members would question the two about their beliefs and conduct, they would often react defensively and appeared to become increasingly paranoid.” He now saw the LDS Church as apostate and himself and Ms. Barzee as “special, unique and superior because of their religious experiences and self-understanding” (p. 13). Eventually, they believed that they must rid themselves of worldly belongings. They became homeless. They began to explore a number of fringe religious, political, and alternative medicine groups. “All of these groups ultimately rejected (them) because of their overbearing attitudes with respect to their religious beliefs” (p. 13). Their beliefs and behavior became increasingly more extreme, as did their isolation and preoccupation. At this point, Mitchell now firmly believed that his thoughts and actions, indeed his will, was controlled by God, as were the actions of others towards him. That is, he now acted as he thought God was commanding him to act. Moreover, those commands not only came in the form of revelation, but also by special signs that were sent to him by means of the “meaning” of events that happened to him. In psychopathological language, he was having passivity experiences, and his thinking was becoming extremely referential. For example, he “knew” that Ms. Smart was meant to be his plural wife because of what he perceived in her face and demeanor during what was, in reality, a chance meeting at an outdoor market. Additional data supported the extent of the breakdown of his social functioning (not even recognizing former friends, being avoided by other homeless persons, being rejected even by the most extreme religious and political groups). Distress was documented in a number of ways (he experienced a great deal of subjective distress on account of his experiences; his belief system was focused on members of his family and former friends and mentors and led to confrontations with them). The above data, in the context of what is known about delusions, the impact of psychosis on social functioning, and the prodromal development of psychosis led me to conclude that Mitchell’s thinking was delusional, not merely extreme or narcissistic. The connection (linking logic) between this delusionality and impairments in many of the domains of psycholegal abilities depicted in Table 4.1 are expressed in Judge Atherton’s final holding: It is the court’s conclusion that the preoccupation, distress, and impaired social functioning exhibited by Defendant are symptoms of a delusional disorder and are not merely the logical outcomes of choices made by someone with extreme religious beliefs who also suffers from a narcissistic personality disorder. Defendant’s religious beliefs are, therefore, delusional. Because a delusional belief is one based upon incorrect inferences about external reality . . . , it necessarily follows that Defendant’s ability to accurately perceive and interpret external reality is impaired and, therefore, that he lacks the capacity to realistically determine what is in his own best interests. Since having the capacity to realistically determine what is in one’s own best interests is nothing more or less than having the ability to make reasoned, rational choices, it follows from the court’s conclusion that because Defendant’s religious belief system is the basis upon which he makes decisions concerning his criminal case, he also lacks the capacity to consult with counsel with a reasonable degree of rational understanding and is, pursuant to section 77-15-1(1), incompetent to proceed to trial. . . . The court finds that

Evaluations of Adult Adjudicative Competency

99

Defendant has present adequate capacity to comprehend and appreciate the charges against him, the range and nature of the possible penalties that may be imposed, and the adversary nature of the proceedings against him. See Utah Code Ann. § 77-15-5(4)(a)(i), (iii), and (v). The court further finds that Defendant has an impaired capacity to disclose to counsel pertinent facts, events, and states of mind, engage in reasoned choice of legal strategies and options, manifest appropriate courtroom behavior, and testify relevantly, if applicable.” Utah Code Ann. § 77-15-5(4)(a)(ii), (iv), (vi), and (vii). The court further finds that Defendant’s mental disorder substantially interferes with his relationship with counsel and, therefore, that his mental disorder has resulted in “his inability to consult with his counsel and to participate in the proceedings against him with a reasonable degree of rational understanding.” Utah Code Ann. § 77-15-2(2). Therefore, the court concludes that Defendant is incompetent to proceed to trial (p. 58–59).

Endnotes 1. No attempt is made to cover the increasingly important area of competency assessments of juveniles. For reviews of this emerging area, see Grisso (1998, 2005; see also Viljoen & Roesch, this volume). 2. These are currently under revision. For the latest draft, see American Psychology-Law Society (2006). 3. The third edition is currently in preparation. A partial update may be found at http:// www.guilford.com (Search for book title). 4. In early jurisprudence, there were many rational reasons for refusing to enter a plea. For example, this acknowledged the jurisdiction of the court. 5. Youtsey’s conviction was reversed and remanded based upon his epilepsy at trial, which was found to have interfered with his ability to assist counsel. 6. Indeed, the authors of the MacCAT go to great lengths to stress that it is a “tool” to be used in conjunction with other assessment procedures. 7. See Everington & Dunn (1995) as a starting place for the assessment of competency in mentally retarded defendants. This is a specialty assessment issue beyond the scope of this chapter. 8. Indeed, the word psycholegal stands for that linkage between relevant psychological and legal characteristics. 9. The issue on appeal was that the lower courts had found Dusky competent to be tried for kidnapping based upon his factual understanding; no further inquiry was made, despite a psychiatric report which included references to disorganized thinking, psychosis and schizophrenia. 10. Searching for case law that cites to Dusky within the jurisdiction, as well as case law that cites to the jurisdiction’s competency statute. 11. In Godinez v. Moran (1993), the Supreme Court held that Dusky was the standard by which the various competency contexts (i.e., competency to plead guilty, to waive counsel, to stand trial with the assistance of counsel) were judged, although “States are free to adopt competency standards that are more elaborate than the Dusky formulation.” 12. Professional standards of practice require examiners to maintain current knowledge within their areas of practice. Information on developments in competency law, methods and procedures can easily be tracked in this internet age. Electronic alerts to new federal and state cases (http://www.law.cornell.edu/bulletin; http://www.findlaw.com ), articles in leading forensic journals (Behavioral Science and the Law, http://www3.interscience.wiley.com; Journal of the American Academy of Psychiatry and the Law, http:// www.jaapl.org; Law and Human Behavior, http://www.springerlink.com; and discussion amongst forensic professionals(Psychology and Law Discussion List, http://www. ap-ls.org/links/professionalListServ.html ) are easy to set and maintain.

100

Stephen L. Golding

13. In an analysis of competency reports, Skeem and Golding (1998) found that examiners rarely assessed decisional competencies, even when the issue was “in play.” 14. Some courts have also addressed this problem in Godinez by distinguishing between the mental competency required to waive right to counsel and whether the waiver was “knowing and intelligent.” See Brooks v. McCaughtry (2004) and Burrows & Herbert (2005). 15. See Miles v. Stainer (1997) [evaluated while compliant with medications, subsequently went off medications, became more psychotic, and wanted to plead guilty]; Maxwell v. Roe (2004) [clear series of events indicating change in psychopathology between evaluation and trial]. 16. This is particularly true for decisional (e.g., ability to make a reasoned choice) as opposed to foundational competencies (e.g., knowledge of the roles of court personnel) which are less likely to change. Decisional competencies are more likely to fluctuate as a function of context. See Skeem and Golding (1998) for an extended discussion of this issue. 17. As addressed below, this situation is far more common than usually realized. The psychopharmaceutical industry’s mantra notwithstanding, modern research confirms that even those who do respond to antipsychotic medications often have periods of increased psychotic symptomatology, independent of medication compliance. 18. The issue may be inappropriately raised by counsel who believes that any indication of mental disorder requires a competency inquiry, as a legal tactic to obtain a psychological evaluation, to delay trial, or sometimes by the prosecution as a means of discovery or to obtain rebuttal evidence for the sentencing phase of a trial (see Estelle v. Smith, 1981; Roesch & Golding, 1987). 19. See, for example, Utah Annotated Code §77-15-5(1). 20. An unstudied empirical question is the extent to which such dramatic fluctuations are “normal,” even in individuals considered to be “stable” on their current treatment regime. 21. A good example is Michael v. Horn (2006). 22. The disparities range from a 90 day limit to life. 23. A notable exception is Utah (§77-15-1 et seq.) which has a detailed implementation of Jackson tied to the underlying severity of the charge. 24. See also Bertmann et al. (2003);Scott (2003). An early controlled study by Siegel & Elwork (1990) showing superiority of psychosocial treatment is an exception. 25. Rates of competency restoration for mentally retarded defendants appear to be distinctly lower. 26. “The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.’’ Harper at 229. 27. See Utah Code section 77-15-5(4)(c) instructs examiners to evaluate and opine about “ (i) whether the medication is necessary to maintain the defendant’s competency; and (ii) the effect of the medication, if any, on the defendant’s demeanor and affect and ability to participate in the proceedings.” 28. Ironically, Sell ended up pleading no contest to the charges, was given credit for “time served,” and is now on probation. 29. This is a generalized statement across types of medications and disorders. A comprehensive review is beyond the scope of this chapter. To pursue this complex issue see Davis, Chen & Glick (2003), Geddes et al. (2000; 2004), Heres et al. (2006) and Whitaker, (2002). 30. This is the NIMH sponsored Clinical Antipsychotic Trials of Intervention Effectiveness (CATIE) study. Stroup, Liberman, McEvoy et al. (2006) and McEvoy, Lieberman and Stroup (2006) report similar results in various followup studies that involve switching to other medications amongst “discontinued” groups in the original CATIE study.

Evaluations of Adult Adjudicative Competency

101

31. Lieberman and his colleagues argue that such a measure is justified because it integrates both patient and clinician judgment as to effectiveness. Thus, discontinuation can occur due to ineffectiveness, side-effects or subjective dysphoria. This type of outcome criteria would make less sense in the forced medication context (they wouldn’t be allowed to stop), but there are no studies of comparative medication effectiveness with forced or mandated treatment, but, as described below, the response rate is logically lower. 32. The Riggins Court stressed the importance of such testimony but questioned whether testimony is sufficient to overcome the prejudice (see also Lawrence v. Georgia, 1995). 33. See, for example, United States v. Gomes (2004)[expert testimony, unchallenged, that there was a 70% likelihood of medication effectiveness] 34. See United States v. Evans (2006);United States v. Lindauer (2006) [critique of testimony not based upon the results of controlled outcome trials, the use of formulaic conclusory Sell testimony, and “bland assurances” with “utter lack of substantiation”] 35. See discussion of “grey area” cases below. 36. It is important that a competency evaluation procedure be built upon an empirical infrastructure. Nevertheless, as discussed below, existing validity data for standardized forensic instruments are quite limited, and structured judgment is involved in the application of all competency assessment approaches. Even if one adopts, say, the MacCAT-CA, which has the most extensive data of any currently used instrument, as the basis of one’s evaluation, in the end, it is merely a “tool,” embedded in the wider context of clinical judgment and other aspects of the competency evaluation procedure. Thus, the reliability and validity of the MacCAT-CA, as used in the real world, has not been studied. 37. Adapted from Skeem, Golding & Emke-Francis (2004). 38. See Rogers (2003) for a review of tests in a forensic context. 39. Several factors are in play. Access to defendants in the kind of clinical setting conducive to adequate testing and interviews is often restricted or difficult to arrange. Furthermore, in most jurisdictions, funding of examinations places a practical limit on the number of hours an examiner can spend on a typical competency referral. 40. Some have advocated using instruments like the FIT-R (or close equivalents, such as the IFI-R) as screening tools (Roesch et al., 1999), focusing only on the detection of psycholegal deficits, leaving a full determination of possible linkage to a second stage of examination (see DeClue, 2003). In practice, this is a workable strategy by quickly reviewing essential psycholegal abilities likely to be involved. This is the same as the reconnaissance stage discussed below. 41. Roesch, Zapf, & Eaves (2006) have recently made available the Fitness Interview TestRevised (FIT-R). It is similar to the IFI (from which it was derived) but was constructed to mirror Canadian competency law, but it could be adapted to any Dusky jurisdiction. It differs from the IFI in being more highly structured. The IFI-R and the FIT-R are compared in Zapf & Viljoen (2003). 42. The original IFI stressed the linkage issue by including both attorneys and forensic mental health professionals in the interview and evaluation process (hence the term “interdisciplinary”). It was a good, but impractical, idea. In modern usage, the forensic examiner provides the linkage based upon extensive training, knowledge of the legal issues, and consultation with both defense and prosecution about the particular context of a given case. 43. Note that the psycholegal abilities organized in Table 4.1 now also include the issues raised by Sell.

102

Stephen L. Golding

44. Copies of the IFI-R and its manual are available without charge at http://home.comcast. net/~slgolding. 45. With few exceptions, even strict actuarial approaches involve clinical judgment in the scoring of variables (such as psychopathy). The modern trend is to speak of structured clinical judgment. See Litwack (2001) and Westen & Weinberger (2004) for an introduction to the literature. 46. This is a valuable point for forensic examiners to consider. Either out of ignorance or cross-cultural context, a defendant may not, for example, understand the role of the judge in the American system. Ignorance is not a psycholegal deficit. 47. This is the authors’ description. 48. This appears to be psychometrically justified in that Rogers et al. (2003) report high internal consistency coefficients for these scales 49. Given the base rates consistently reported in the literature, CC+CI may account for 80% of the typical referral stream. 50. Many evaluators do not engage in this pre-interview stage. If suitably crossed during their testimony, they are left with the weak reply, “Well, that information was not provided to me.” 51. Many jurisdictions also specify that such a warning is required. Shuman’s Psychiatric and Psychological Evidence (2005) is an invaluable resource for tracking evidentiary issues relevant to forensic psychology. 52. In addition to the IFI-R manual, an interview “template” is also available at http://home. comcast.net/~slgolding. 53. This assumes, of course, that accepting the offered plea bargain, in light of existing evidence and chances of prevailing at trial, is a “rational choice.” 54. While a detailed discussion is beyond the scope of this chapter, experts are not allowed to opine on the specific credibility of a witness or defendant (e.g., “When X claimed Y, my assessment is that he was not telling the truth.”) However, assessment of malingering or minimization is the cornerstone of a forensic evaluation and a variety of testimonial approaches can be taken. For example, the “specific credibility prohibition” is not triggered if the testimony is of the form, “In reaching my conclusion that X is not psychotic, I relied in part on converging evidence from the validity scales of the MMPI2, the PAI, and clinical observation that the defendant had a response style that tended to exaggerate his level of psychopathology.” Granted, this is word-smything, but there are important distinctions between the two testimonial forms. 55. Little research on the convergent validity of malingering assessments with different methods exists. What does exist suggests great caution given that different methods often yield dramatically different results (Farkas et al., 2006). 56. Usually based upon either clinical judgment or scores on the SIRS. 57. The Test of Memory Malingering (TOMM) is a commonly used screening for malingering in neuropsychological assessments. 58. A useful and continuously updated resource for tracking detection of malingering research may be found at http://www.kspope.com/assess/malinger.php . 59. Many defendants and some attorneys erroneously believe that amnesia is a solid ground for finding a defendant incompetent. A full discussion of relevant case law (Wilson v. United States [1968] is a must read case) may be found in Roesch et al. (1999). 60. Section 11.03 of the proposed revision contains excellent and detailed guidance in this regard. 61. One of the forensic examiners of Ms. Barzee diagnosed her as folie à deux.

Evaluations of Adult Adjudicative Competency

103

References Amador, X., Strauss, D., Yale, S. et al. (1993). Assessment of insight in psychosis. American Journal of Psychiatry, 150, 873–879. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. http://www2.apa.org/ethics/92-02codecompare.doc. American Psychology Law Society. (2006). Specialty guidelines for forensic psychology second official draft 1/11/2006. Accessed at http://www.ap-ls.org. Appelbaum, P. (1994). Almost a revolution: Mental health law and the limits of change. New York: Oxford. Arbisi, P. A., & Ben-Porath, Y. S. (1998). The ability of Minnesota Multiphasic Personality Inventory–2 validity scales to detect fake-bad responses in psychiatric inpatients. Psychological Assessment, 10, 221–228. Atherton, J. (2005). State v. Mitchell. Findings and conclusions re: Defendant’s competency to proceed to trial. http://www.utcourts.gov/media/news/archives/State%20v.%20Mitchell– Ruling%20on%20Competency%20to%20Proceed.pdf. Bagby, R., Nicholson, R., Bacchioci, J. et al. (2002). The predictive capacity of the MMPI-2 and PAI validity scales and indexes to detect coached and uncoached feigning. Journal of Personality Assessment, 78, 69–86. Berry, D., Baer, R., Rinaldo, J., & Wetter, M. (2002). Assessment of malingering. In J. N. Butcher (Ed.), Clinical personality assessment: Practical approaches (pp. 268–302). New York: Oxford University Press. Bertman, L. J., Thompson, J. W. J., Waters, W. F., Estupinan-Kane, L., Martin, J. A., & Russell, L. (2003). Effect of an Individualized treatment protocol on restoration of competency in pretrial forensic inpatients. Journal of the American Academy of Psychiatry and the Law, 31, 27–35. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. Brooks v. McCaughtry, 380 F. 3D 1009 (7th Cir. Wis. 2004). Burrows, M., & Herbert, P. (2005). Competence to stand trial: Competence to stand trial does not conclusively equate to competence to waive trial counsel. Journal of the American Academy of Psychiatry and the Law, 33, 557–558. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Cronbach, L. J., & Meehl, P. E. (1955). Construct validity in psychological tests. Psychological Bulletin, 52, 281–302. Davis, J., Chen, N., & Glick, I. (2003). A meta-analysis of the efficacy of second-generation antipsychotics. Archives of General Psychiatry, 60, 553–564. Day, J., Bentall, R., Roberts, C. et al. (2005). Attitudes toward antipsychotic medication. Archives of General Psychiatry, 62, 717–724. Declue, G. (2003). Toward a two-stage model for assessing adjudicative competence. The Journal of Psychiatry and Law, 31, 305–317. Drope v. Missouri. 420 U. S. 162 (1975). Dusky v. United States. 362 U.S. 402 (1960). Edens, J., Cruise, K., & Buffington-Vollum, J. (2001). Forensic and correctional applications of the Personality Assessment Inventory. Behavioral Sciences and the Law, 19, 519–543. Eisenberg, T., Garvey, S., & Wells, M. (1998). But was he sorry? The role of remorse in capital sentencing. Cornell Law Review, 83, 1599–1637. Estelle v. Smith. 451 U.S. 454 (1981).

104

Stephen L. Golding

Everington, C., & Dunn, C. (1995). A second validation study of the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). Criminal Justice and Behavior, 22, 44–59. Farkas, M., Rosenfeld, B., Robbins, R., & van Gorp, W. (2006). Do Tests of malingering concur? Concordance among malingering measures. Behavioral Sciences & The Law, 24, 659–671. First, M. (Ed.). (2003). Standardized evaluation in clinical practice. Washington, DC: American Psychiatric Association Press. Frith’s Case. 22 Howes’ State Trials 307, 318 (1790). Gaudiano, B., & Miller, I. (2006). Patient’s expectancies, the alliance in pharmacotherapy, and treatment outcomes in bipolar disorder. Journal of Consulting and Clinical Psychology, 74, 671–676. Geddes, J., Burgess, S., Hawton, K., Jamison, K., & Goodwin, G. (2004). Long-term lithium therapy for bipolar disorder: Systematic review and meta-analysis of randomized controlled trials. American Journal of Psychiatry, 161, 217–222. Geddes, J., Freemantle, N., Harrison, P., & Bebbington, P. (2000). Atypical antipsychotics in the treatment of schizophrenia: A systematic overview and meta-regression analysis. British Medical Journal, 321, 1371–1376. Godinez v. Moran. 509 U.S. 389 (1993). Golding, S. L. (1993). Interdisciplinary Fitness Interview-Revised: A training manual. Unpublished monograph from State of Utah Division of Mental Health. Available at http://home.comcast.net/~slgolding. Golding, S. L. (1992). Studies of incompetent defendants: Research and social policy implications. Forensic Reports, 5, 77–83. Golding, S. L., & Roesch, R. (1988). Competency for adjudication: An international analysis. In D. Weisstub (Ed.), Law and mental health: International perspectives (Vol. 4, pp. 73–109). New York: Pergamon Press. Golding, S. L., Roesch, R., & Schreiber, J. (1984). Assessment and conceptualization of competency to stand trial: Preliminary data on the Interdisciplinary Fitness Interview. Law and Human Behavior, 8(3–4), 321–334. Golding, S. L., Skeem, J. L., Roesch, R., & Zapf, P. A. (1999). The assessment of criminal responsibility: Current controversies. In A. K. Hess & I. B. Weiner (Eds.), The handbook of forensic psychology (2nd ed., pp. 327–249). New York: Wiley. Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28(1), 50–57. Greer, A., O’ Regan, M., & Traverso, A. (1996). Therapeutic jurisprudence and patients’ perceptions of procedural due process of civil commitment hearings. In D. Wexler & B. Winick (Eds.), Law in a therapeutic key: Developments in therapeutic jurisprudence (pp. 923–933). Durham, NC: Carolina Academic Press. Grisso, T. (1988). Competency to stand trial evaluations. Sarasota, FL: Professional Resource Exchange. Grisso, T. (1998). Forensic evaluation of juveniles. Sarasota, FL: Professional Resource Press. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer. Grisso, T. (2005). Evaluating juveniles’ adjudicative competence. Sarasota, FL: Professional Resource Press. Grisso, T., & Appelbaum, P. S. (1998a). Assessing competence to consent to treatment: A guide for physicians and other health professionals. London, Oxford University Press. Grisso, T., & Appelbaum, P. S. (1998b). MacArthur competence assessment tool for treatment (MacCAT-T). Sarasota, FL: Professional Resource Press.

Evaluations of Adult Adjudicative Competency

105

Grisso, T., Appelbaum, P., Mulvey, E., & Fletcher, K. (1995). The MacArthur treatment competence study II: Measures of abilities related to competence to consent to treatment. Law and Human Behavior, 19, 127–148. Heilbrun, K. (2001). Principles of Forensic Mental Health Assessment. New York: Kluwer. Heilbrun, K., & Kramer, G. (2005). Involuntary medication, trial competence, and clinical dilemmas: Implications of Sell v. United States for psychological practice. Professional Psychology: Research and Practice, 36(5), 459–466. Heres, S., Davis, J., Maino, K., Jetzinger, E. et al. (2006). Why olanzapine beats risperidone, risperidone beats quetiapine, and quetiapine beats olanzapine: An exploratory analysis of head-to-head comparison studies of second-generation antipsychotics. American Journal of Psychiatry, 163, 185–194. Hoge, S. K., Bonnie, R. J., Poythress, N., & Monahan, J. (1999). The MacArthur Competence Assessment Tool—Criminal Adjudication. Odessa, FL: Psychological Assessment Resources. Hurley, K., & Deal, W. (2006). Assessment instruments measuring malingering used with individuals who have mental retardation: Potential problems and issues. Mental Retardation, 44(2), 112–119. Jackson v. Indiana. 402 U.S. 715 (1972). Jørgensen, A., Hilden, J., & Gøtzsche, P. (2006). Cochrane reviews compared with industry supported meta-analyses and other meta-analyses of the same drugs: Systematic review. British Medical Journal, doi:10.1136/bmj.38973.444699.0B. [Retrieved October 16, 2006]. Krupnick, J. L., Sotsky, S., Simmens, S. et al. (1996). The role of the therapeutic alliance in psychotherapy and pharmacotherapy outcome: Findings in the NIMH treatment of depression collaborative research program. Journal of Consulting and Clinical Psychology, 64, 532–539. Ladds, B., & Convit, A. (1994). Involuntary medication of patients who are incompetent to stand trial: A review of empirical studies. Bulletin of the American Academy of Psychiatry and the Law, 22, 519–532. Lally, S. J. (2003). What tests are acceptable for use in forensic evaluations?: A survey of experts. Professional Psychology: Research and Practice, 34, 491–498. Lawrence v. Georgia. 454 S.E.2d 446 (Ga. 1995). Lidz, C., Hoge, S., Gardner, W., Bennett, N., Monahan, J., Mulvey, E. et al. (1995). Perceived coercion in mental hospital admission: Pressure and process. Archives of General Psychiatry, 52, 1034–1039. Lieberman, J., Stroup, T., McEvoy, J. et al. (2005). Effectiveness of antipsychotic drugs in patients with chronic schizophrenia. New England Journal of Medicine, 353, 1209–1223. Litwack, T. R. (2001). Actuarial versus clinical assessments of dangerousness. Psychology, Public Policy, and Law, 7, 409–443. Litwack, T. (2003). The competency of criminal defendants to refuse, for delusional reasons, a viable insanity defense recommended by counsel. Behavioral Sciences and the Law, 21, 135–156. Maxwell v. Roe. 113 Fed. Appx. 213 (9th Cir. 2004), cert. denied, 125 S. Ct. 2513 (2005). McEvoy, J., Lieberman, J., Stroup, T. et al. (2006). Effectiveness of clozapine versus olanzapine, quetiapine, and resperidone in patients with chronic schizophrenia who did not respond to prior atypical antipsychotic treatment. American Journal of Psychiatry, 163, 600–610. McEvoy, J. P., Apperson, L. J., Appelbaum, P. S. et al. (1989) Insight in schizophrenia: Its relationship to acute psychopathology. Journal of Nervous and Mental Disease, 177, 43–47.

106

Stephen L. Golding

McGarry, A., Lelos, D., & Lipsitt, P. (1973). Competency to stand trial and mental illness (DHEW publication number HSM-73-9105). Washington, DC: National Institute of Mental Health. Melton, G., Petrila, J., Poythress,N., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers. New York: Guilford Press. Michael v. Horn. No. 04-9002 (3rd Cir. 2006). Miles v. Stainer. 108 F. 3d 1109 (9th Cir. 1997). Miller, H. (2001). Miller—Forensic assessment of symptoms test. Odessa, FL.: Psychological Assessment Resources. Miller, H. (2004). Examining the use of the M-FAST with criminal defendants incompetent to stand trial. International Journal of Offender Therapy and Comparative Criminology, 48, 268–280. Møller, P., & Husby, R. (2000). The initial prodrome in schizophrenia: Searching for naturalistic core dimensions of experience and behavior. Schizophrenia Bulletin, 26, 217–232. Morris, G., & Meloy, J. (1993). Out of mind? Out of sight: The uncivil commitment of permanently incompetent criminal defendants. UC Davis Law Review, 27, 1–96. Pate v. Robinson. 383 U.S. 375 (1966). People v. Goldstein, 843 N.E. 2d 727 (Court of Appeals, New York 2005). Pierre, J. (2001). Faith or delusion? At the crossroads of religion and psychosis. Journal of Psychiatric Practice, 7, 163–172. Pinals, D. (2005). Where two roads met: Restoration of competence to stand trial from a clinical perspective. New England Journal of Civil and Criminal Confinement, 31, 81–108. Pollock, P. (1996). A cautionary note on the determination of malingering in offenders. Psychology, Crime and Law, 3, 97–110. Poythress, N., Bonnie, R., Monahan, J., Otto, R., & Hoge, S. (2002). Adjudicative competence: The MacArthur studies. New York: Kluwer Academic. Poythress, N., Nicholson, R., Otto, R. K., Edens, J. F., Bonnie, R. J., Monahan, J., & Hoge, S. K. (1999). The MacArthur Competence Assessment Tool—Criminal Adjudication: Professional manual. Odessa, FL: Psychological Assessment Resources. Riggins v. Nevada, 505 U.S. 437 (1992). Roesch, R., & Golding, S. L. (1979). Treatment and disposition of defendants found incompetent to stand trial: A review and a proposal. International Journal of Law and Psychiatry, 2, 349–370. Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Champaign, IL: University of Illinois Press. Roesch, R., & Golding, S. L. (1987) Defining and assessing competency to stand trial. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology. Wiley Series on personality process (pp. 378–394). Oxford, England: John Wiley & Sons. Roesch, R., Ogloff, J., & Golding, S. L. (1993). Competency to stand trial: Legal and clinical issues. Journal of Applied and Preventative Psychology, 2, 43–51. Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. (1999). Defining and assessing competency to stand trial. In I. B. Weiner & A. K. Hess (Eds.), Handbook of forensic psychology, (2nd ed., pp. 327–349). New York: Wiley. Roesch, R., Zapf, P. A., & Eaves, D. (2006). The Fitness Interview Test-Revised: A structured interview for assessing competency to stand trial. Sarasota, FL: Professional Resource Press. Resnick, P. (1997). Malingered psychosis. In R. Rogers (Ed.), Clinical assessment of malingering and deception (pp. 47–67). New York: Guilford. Rogers, R. (1997). Clinical assessment of malingering and deception (2nd ed). New York: Guilford. Rogers, R. (2001). Handbook of diagnostic and structured interviewing. New York: Guilford.

Evaluations of Adult Adjudicative Competency

107

Rogers, R. (2003). Forensic use and abuse of psychological tests: Multiscale inventories. Journal of Psychiatric Practice, 9, 316–320. Rogers, R., Bagby, R., & Dickens, S. (1992). Structured Interview of Reported Symptoms (SIRS) and professional manual. Odessa, FL.: Psychological Assessment Resources. Rogers, R., Jackson, R., Sewell, K., & Harrison, K. (2004). An examination of the ECST-R as a screen for feigned incompetency to stand trial. Psychological Assessment, 16, 139–145. Rogers, R., Jackson, R., Sewell, K., Tillbrook, C., & Martin, M. (2003). Assessing dimensions of competency to stand trial: Construct validation of the ECST-R. Assessment, 101, 344–351. Rogers, R., Tillbrook, C., & Sewell, K. (2004). Evaluation of Competency to Stand Trial-Revised (ECST-R): Professional manual. Lutz, FL: Psychological Assessment Resources. Scott, C. L. (2003). Commentary: A road map for research in restoration of competency to stand trial. Journal of the American Academy of Psychiatry and the Law, 31, 36–43. Sell v. United States. 539 U.S. 166 (2003). Shuman, D. W. (2005). Psychiatric and psychological evidence (3rd ed.). Colorado Springs, Colorado: Shepards/McGraw-Hill. Siegel, A. M., & Elwork, A. (1990). Treating incompetence to stand trial. Law and Human Behavior, 14, 57–65. Skeem, J., Golding, S. L., & Emke-Francis,P. (2004). Assessing adjudicative competency: Using legal and empirical principles to inform practice. In W. T. Donohue & E. R. Levensky (Eds.). Forensic psychology: A handbook for mental health and legal professionals (pp. 175–211). New York: Academic Press. Skeem, J. L., Golding, S. L., Cohn, N. B., & Berge, G. (1998). Logic and reliability of evaluations of competence to stand trial. Law and Human Behavior, 22, 519–547. Skeem, J., & Golding, S. L. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29, 357–367. Stafford, K. (2003). Assessment of competence to stand trial. In A. M. Goldstein (Ed.), Handbook of psychology: Forensic psychology (Vol. 11, pp. 359–380). New York: Wiley. Stanton, B., & David, A. (2003). First person accounts of delusions. Psychiatric Bulletin, 24, 333–336. Stiles, P., Poythress, N., Hall, A., Falkenbach, D., & Williams, R. (2001). Improving understanding of research consent disclosures among persons with mental illness. Psychiatric Services, 52, 780–785. Stroup, T., Lieberman, J., McEvoy, J., Swartz, M. et al. (2006). Effectiveness of Olanzapine, Quetiapine, Risperidone, and Ziprasidone in patients with chronic schizophrenia following discontinuation of a previous atypical antipsychotic. American Journal of Psychiatry, 163, 611–622. Sullivan, H.S. (1953). The psychiatric interview. New York: Norton. Tandon, R. (2006). Comparing antipsychotic efficacy. American Journal of Psychiatry, 163, 1645. Tombaugh, T. N. (1997). The Test of Memory Malingering (TOMM): Normative data from cognitively intact and cognitively impaired individuals. Psychological Assessment, 9, 260–268. United States v. Bradshaw. 690 F. 2d 704, 712 [9th Cir. 1982]. United States v. Evans. 427 F. Supp. 2d 696 (W.D. Vir. 2006). United States v. Gomes. 387 F.3d 157 (2d Cir. 2004). United States v. Lindauer. 2006 U.S. Lexis 62872 (So. Dist. NY, 9/6/2006). Viljoen, J., & Roesch, R. (2003). Diagnosis, current symptomatology and ability to stand trial. Journal of Forensic Psychology Practice, 3, 23–37.

108

Stephen L. Golding

Washington v. Harper. 494 U.S. 210 (1990). Westen, D., & Weinberger, J. (2004). When clinical description becomes statistical prediction. American Psychologist, 59(7), 595–613. Whitaker, R. (2002). Mad in America: Bad science, bad medicine, and the enduring mistreatment of the mentally ill. Cambridge, MA: Perseus. Wilson v. United States. 391 F. 2d. 460 (1968). Youtsey v. United States. 97 F. 937 (6th Cir. 1899). Zapf, P., & Galloway, M. (2002). Test review: Miller Forensic Assessment of Symptoms Test (M-FAST). American Psychology-Law Society Newsletter, 2002, 16–17;23. Zapf, P., & Roesch, R. (2002). A comparison of the MacCAT-CA and the FIT for making determinations of competency to stand trial. International Journal of Law and Psychiatry, 24, 81–92. Zapf, P. A., Skeem, J., & Golding, S. L. (2005). Factor structure and validity of the MacArthur Competence Assessment Tool—Adjudication. Psychological Assessment, 17, 433–445. Zapf, P. A., & Viljoen, J. L. (2003). Issues and considerations regarding the use of assessment instruments in the evaluation of competency to stand trial. Behavioral Sciences & the Law, 21, 351–367. John Wiley & Sons.

5 Insanity Evaluations Richard Rogers

Insanity evaluations often evoke images of bizarre crimes with courtroom battles championed by partisan experts. Missing from these dramatized accounts is any serious consideration of the empirical knowledge and standardized measures underlying these complex evaluations. This chapter introduces the relevant legal concepts, psychological constructs, and specialized methods used in forensic evaluations of criminal responsibility. It subscribes to the legal–empirical–forensic paradigm propounded by Rogers and Shuman (2005). Briefly, legal formulations of insanity provide a general framework. Forensic psychologists and psychiatrists must operationalize and test empirically specialized methods for assessing the components of insanity. These empirically tested methods are subjected to judicial scrutiny regarding their admissibility in light of Daubert (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993) and subsequent Supreme Court cases (General Electric Company v. Joiner, 1997; Kumho Tire Company v. Carmichael, 1999). As titled, this chapter is an introduction to insanity evaluations. It provides a helpful overview of legal issues and clinical methods. In complementing more scholarly works, it presents a step-by-step approach to insanity assessments and discusses practical issues related to expert opinion and testimony. Forensic practitioners intending to carry out insanity evaluations must be solidly grounded in the relevant case law, legal formulations, and specialized methods. Essential texts on criminal forensic assessments include (a) Melton, Petrila, Poythress, and Slobogin (1997) and (b) Rogers and Shuman (2005). For comprehensive coverage of insanity evaluations per se, Conducting Insanity Evaluations (Rogers & Shuman, 2000a) is recommended. In addition, forensic practitioners must become conversant with the relevant case law that is specific to their jurisdictions. This introductory chapter does not address other issues of criminal responsibility that are sometimes addressed in American jurisdictions. Examples include the mens rea defense and automatism. In addition, psychological context evidence is occasionally introduced as an affirmative defense to domestic violence in cases of battered woman syndrome. Rogers and Shuman (2005) provide an extensive treatment for these additional issues related to criminal responsibility.

109

110

Richard Rogers

Overview of Insanity Standards The foundation of American jurisprudence on the insanity defense is based largely on the acquittal of Daniel M’Naghten and the ensuing legal formulation that carries his name. Apparently based on delusional beliefs, M’Naghten intended to assassinate Robert Peel, the then-prime minister of England, but mistakenly killed his personal secretary instead. In the public outrage following M’Naghten’s acquittal, a special commission of 15 judges from common law courts was convened by Queen Victoria. The resulting M’Naghten standard relied heavily on rational abilities. It held that insanity required the defendant to be “labouring under such a defect of reason, from disease of mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong” (M’Naghten, 1843). As observed by Rogers and Shuman (2005), this standard, relying on a “defect of reason,” comprises two cognitive prongs: knowledge of “the nature and quality of the act” and its wrongfulness. The M’Naghten standard was quickly imported to the United States and became the prevailing test of insanity. In some jurisdictions, its critics saw M’Naghten as unduly narrow in its formulation. As a result, several American insanity cases, contemporaneous with M’Naghten (e.g., Commonwealth v. Mosler, 1846; cited by Keilitz & Fulton, 1983), attempted to broaden the standard by the inclusion of irresistible impulse. The addition of irresistible impulse was aimed at addressing the volitional prong, specifically the incapacity to control one’s criminal conduct. A recent survey (Gee, 2003) found that twenty-four states used M’Naghten, with six of these states applying some variant of the irresistible impulse prong. The Durham standard (Durham v. United States, 1954) was a dramatic, though brief, departure from prevailing insanity standards. Under the leadership of Judge Bazelon, the District of Columbia adopted the product rule that stated, “an accused is not criminally responsible if his unlawful act was a product of a mental disease or mental defect” (pp. 874–875). Although tried by several jurisdictions, this experiment was deemed a failure and subsequently discarded as an insanity test. The American Law Institute (ALI) standard (1962) represented a decade of careful study underwritten by the Rockefeller Foundation (see Rogers & Shuman, 2000a). It embraced both cognitive and volitional prongs, “A person is not responsible for criminal conduct, if, at the time of such conduct, as the result of a mental disease or defect, he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.” The ALI standard attempted to eliminate the possibility that psychopaths could be seen as being unable to conform their conduct; it excluded any “abnormality manifested only by repeated criminal or otherwise antisocial conduct.” In the aftermath of Hinckley’s highly unpopular acquittal for the attempted assassination of President Reagan, Congress passed the Insanity Defense Reform Act (IDRA, 1984). In an effort to be more restrictive, the IDRA standard held, “as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or wrongfulness of his act” (p. 201). The IDRA reverted to cognitive constructs found in M’Naghten and eliminated the volitional prong. Despite its fanfare, the IDRA applies to only the small percentage of insanity cases that are raised in federal jurisdictions.

Insanity Evaluations

TABLE 5.1

111

Conceptual Model of Insanity Standards Cognitive Prongs

Insanity Standard M’Naghten M’Naghten/Irresistible Impulse Durham ALI IDRA

Volitional Prongs

Nature and quality Wrongfulness Irresistible Conform Conduct Product √ √

√ √

√

√ √

√ √ √

Note: ALI = American Law Institute; IDRA = Insanity Defense Reform Act.

Basic Components of Insanity Standards This section provides a distilled review of the basic components common to insanity standards (see Table 5.1). Because the case law in each jurisdiction may further refine these components, a careful examination of the relevant appellate cases is required. 1. Mental disease or defect. The necessary precondition for all insanity standards is that the defendants suffer from a serious mental condition that significantly impairs their daily functioning. In general, the courts have been reluctant to exclude categorically any specific disorders from consideration. Although insanity acquittals are most commonly based on psychotic disorders, a significant number have mood or personality disorders as their primary diagnosis (Rogers & Shuman, 2000a). 2. Nature and quality. These closely related constructs address the defendants’ awareness of their actions and their consequences; the absence of either component is sufficient to meet this prong. Nature typically refers to the physical actions per se. In contrast, quality generally refers to the likely or actual consequences of such conduct. As an example of this distinction, a female defendant with mental retardation knew she placed her baby into hot water (i.e., the “nature” of her actions) as a punishment for crying, but was clearly unaware that it would cause third-degree burns (i.e., the “quality” of her actions). The nature-and-quality prong is very restrictive and applies to only the most impaired defendants. 3. Wrongfulness. Wrongfulness is the pivotal cognitive issue for insanity standards. This prong is usually satisfied when defendants are unable to understand that criminal conduct is illegal because of severe psychopathology. The most common example is delusional self-defense; defendants believe that they are in imminent danger and attempt to protect themselves. Other cases may include delusionally-based actions involving: (a) the defense of others, (b) officially-sanctioned duties, and (c) misconstrued exigencies (see Rogers & Shuman, 2005). Forensic practitioners should check the relevant case law to see if moral wrongfulness (e.g., responses to “divine authority”) also qualifies under the wrongfulness prong. 4. Irresistible impulse. This prong addresses an inability to refrain from the behavior. The loss of power to choose is typically the result of an overriding internal imperative, which cannot be stopped and lacks the capacity for delay (Rogers & Shuman, 2000a). 5. Conformity of conduct. This prong focuses on the capacity to choose between criminal and noncriminal behavior. It addresses the defendant’s volitional abilities to choose prosocial actions based on perceived options and decision-making abilities (Rogers & Shuman, 2000a).

112

Richard Rogers

Nature of Insanity Evaluations Retrospective Assessments Insanity evaluations place singular demands on forensic practitioners in applying imprecise legal standards to the retrospective assessment of psychological functioning for a specific time period. The retrospective nature of these evaluations deserves special consideration. Intervals between the criminal offenses and subsequent evaluations typically range from months to years. Rogers (2002) provided a useful typology regarding types of retrospective assessment. First, an ongoing episode extends from the time in question (e.g., time of crime) to the current time. Second, a prior episode is limited to a past period (e.g., remission or significant amelioration of symptoms since the time of the crime). Third and finally, a prior occurrence refers to past symptoms of very limited duration (e.g., intoxication or other altered state at the time of the crime). Insanity evaluations with ongoing episodes are comparatively straightforward to conduct. Clinical data are readily available from the defendant’s reporting, collateral accounts, and detailed observations. The nexus between symptoms and impairment can be established over time. In direct contrast, prior episodes must focus entirely on the reconstruction of the defendant’s functioning at the time of the offense. The reliability of the defendant and the availability of witnesses and other collateral sources (e.g., mental health records) are critical to these insanity evaluations. Because voluntary intoxication is generally excluded as the basis for insanity, prior occurrences per se are rarely determinative of conclusions regarding criminal responsibility. Nonetheless, their role must be evaluated in ascertaining their likely effects on the defendants’ cognitive and volitional capacities. Given problems with blackouts and impaired memory, use of collateral sources is often vital. Forensic psychologists and psychiatrists are sometimes criticized for rendering expert opinions that extend beyond the current time. An important distinction should be drawn between prospective and retrospective forensic assessments. With prospective assessments, forensic practitioners attempt to predict low baserate behavior for an extended period, often years, into the future. Use of general risk factors coupled with cross-situational predictions of low base-rate behaviors poses considerable dangers of over-predictions with unacceptably high false-positives (Rogers, 2000). In stark contrast, retrospective assessments of insanity use a comparative analysis to explain the most likely motivations for criminal conduct. For insanity evaluations, particular criminal acts (e.g., murder) often have very low base rates, even in offender populations. Because the infrequent act has already occurred, however, retrospective evaluations of insanity are not vulnerable at all to false-positives. Therefore, insanity evaluations pose very different challenges from prospective evaluations in their retrospective reconstruction of the defendant’s functioning at the time of the offense. In the context of insanity evaluations, Gutheil (2002) conceptualized hindsight analysis as a longitudinal examination that “takes into account the defendant’s entire life” (p. 80). The strength of his conceptualization is its emphasis on identifiable patterns and the understanding of criminal actions as they relate to these important

Insanity Evaluations

113

patterns. However, it is limited by its breadth; patterns are only relevant to the extent that they inform the courts regarding the defendant’s functioning during a narrowly defined period, namely the time of the offense. It is critically important to be more focused on relevant patterns including the antecedent conditions, the defendant’s functioning at the time of the offense, and his or her subsequent actions. Regarding mental health history, a broadened framework may help in understanding the defendant’s other episodes and the effects of particular symptoms (e.g., command hallucinations) on his or her behavior.

Comparative Analysis The overriding goal of insanity evaluations is a comprehensive reconstruction of the defendant’s functioning at the time of the offense. Rogers and Shuman (2000a) provide an extensive analysis of the defendant’s conduct within the context of insanity standards. This section highlights decision models and their use in the assessment of criminal responsibility. Traditional evaluations typically employ a hypothesis-testing model as the structure of the assessment and its conclusions. With this model, forensic practitioners formulate a likely hypothesis for explaining the criminal conduct. Clinical data are collected to test this hypothesis. Despite its rich tradition, this approach is vulnerable to both confirmatory and anchoring biases (Borum, Otto, & Golding, 1993). The initial formulation of a hypothesis shapes the ensuing evaluation. Data supportive of the hypothesis tend to be overvalued, whereas data supporting alternative theories are de-emphasized. As a case example, bizarre acts (e.g., the removal of human hearts with separate knives to avoid contamination) may lead to strongly-held hypotheses regarding the insanity of the defendant. One solution recommended by Borum et al. (1993) is the intentional development of alternative hypotheses. Rogers and Shuman (2000a) proposed that forensic clinicians utilize a linear best-fit model in determinations of criminal responsibility. According to this model, forensic experts systematically collect clinical data using, where possible, standardized measures. Once collected, clinical judgments would be rendered about the “best fit” of the data in relation to the appropriate insanity standard. How does this approach differ from the development of alternative hypotheses? X Broader scope. The linear best-fit model requires a comprehensive assessment of diagnostically relevant data. In applying standardized measures, Axis I and Axis II interviews may be used to systematically evaluate diagnoses and salient symptoms In contrast, alternative hypotheses may be focused in their assessments. For example, the diagnostic consideration might be between voluntary intoxication and substance-induced psychotic disorders. X Debiasing clinical judgment. The linear best-fit model delays the judgment process until critical data are collected from the defendant and other relevant sources. In contrast, the alternative hypothesis involves the relative weighing of evidence throughout the assessment process. This weighing process is vulnerable to biases in clinical decision-making.

114

Richard Rogers

In summary, the hypothesis-testing model is susceptible to critical errors in clinical judgment (see Rogers & Shuman, 2000a). Forensic practitioners should choose between an alternative hypothesis paradigm and the linear best-fit model. In selecting the former, the alternative hypotheses should be explicitly formulated at the onset of the evaluation and include multiple perspectives. For the linear best-fit model, standardized measures should be applied to ensure a comprehensive assessment of data relevant to diagnosis and impairment. Diagnoses and Insanity Diagnoses, per se, have only limited relevance to determinations of insanity. Instead, diagnoses provide a useful framework for assessing salient symptoms and associated features from both longitudinal (i.e., episodes prior to the current arrest) and crosssectionally (i.e., functioning at the time of the alleged crime) perspectives. It is critically important to assess impaired functioning arising from particular symptoms or constellation of symptoms Forensic clinicians must assess both the level and type of impairment. For example, paranoid delusions may differ substantially in their level of impairment ranging from peripheral to pervasive interference in daily activities. Especially relevant to insanity evaluations is the type of impairment. With the example of paranoid delusions, the wrongfulness of the defendant’s criminal conduct may cover a full spectrum from being unaffected (i.e., fully aware of culpability) to grossly impaired (i.e., delusionally-based actions to “prevent” imminent harm). Diagnoses in forensic evaluations are categorized into three major groups based on their methodology (Rogers & Shuman, 2005). Forensic clinicians need to decide whether to employ unstandardized, standardized, or extrapolated diagnostic methods. Unstandardized diagnoses typically rely on free-flowing clinical interviews that are characterized by flexibility in interviewing style and concomitant recording of salient findings. For diagnosis, per se, this flexibility is also its greatest detriment. Such diagnoses (see Rogers, 2001) can be limited by variability in: (a) the scope of the clinical interview, (b) variability in the format and sequencing of clinical inquiries, and (c) the idiosyncratic recording of symptomatology. Rogers and Shuman (2005) summarized the accuracy of unstandardized diagnoses for major depression and schizophrenia when evaluated by mental health professionals: X Missed diagnoses. Estimates for when diagnoses are overlooked range from 50 to 62 percent for major depression and 18 to 31 percent for schizophrenia. X Misdiagnoses. Estimates for when diagnoses are wrongly applied range from 22 to 28 percent for major depression and 30 to 47 percent for schizophrenia.

Forensic clinicians should avoid any major reliance on unstandardized diagnoses, given their vulnerability to both missed diagnoses and misdiagnoses. Standardized interviews provide systematic methods for assessing diagnoses. They provide a uniform structure for clinical inquiries and their correspondent ratings (Rogers, 2003). Of particular relevance to forensic consultations, practitioners can demonstrate to the court their systematic methods of assessment and their diagnostic reliability. For some standardized interviews, reliability extends beyond diagnoses

Insanity Evaluations

115

and can demonstrate the consistent measurement of salient symptoms across clinicians (interrater reliability) and time (test–retest reliability). Extrapolated diagnoses utilize scales and indexes derived from psychometric measures. These measures do not yield DSM-IV diagnoses. Their clinical correlates lack the necessary precision for establishing specific diagnoses. Attempts at extrapolated diagnoses from the MMPI-2 and MCMI-III scales yield unacceptably high falsepositive rates that easily exceed 50 percent. Likewise, indexes on the Rorschach cannot be linked to particular diagnoses. As observed by Weiner (1998), low scores on the Schizophrenia Index (SCZI) have no diagnostic significance, whereas high scores may signify a range of Axis I (e.g., schizophrenia, schizophreniform, or delusional disorder) and Axis II (e.g., paranoid or schizotypal personality disorder) diagnoses.

One Model of Insanity Evaluations A primary objective of this book is to present practical guidelines for conducting forensic evaluations. In that light, this section provides one model for performing insanity evaluations. Alternative approaches are readily available that address forensic evaluations in general (Heilbrun, 2001) or assessments of criminal responsibility (Shapiro, 1999).

Reconstruction of the Defendant’s Functioning A critically important task for forensic practitioners is the reconstruction of the defendant’s thoughts, feelings, and actions at the time of the offense. Given the vulnerability of memory to external influences, a primary objective is to minimize clinician-based influences on the defendant’s recall. Therefore, I recommend eliciting the defendant’s account at the time of the offense in an unhurried manner asking, when necessary, simple open-ended questions. The goal is the most comprehensive narrative account while minimizing memory contamination via leading questions. How do we operationalize the “time of the offense,” a critical component to insanity determinations? It is stringently defined as the period between which the criminal conduct was initiated and completed. In most instances, this period is only a matter of minutes. To better understand the “time of the offense,” it is useful to consider several time perspectives: X Day of the offense. An exhaustive account of this day is very helpful. In my insanity evaluations, I typically begin at the first event of the day (e.g., awakening) and attempt to catalogue each event of the day. The goal is to capture all the defendant’s perceptions, thoughts, feelings, and actions. X Days preceding the offense. A detailed account is sought for the several days leading up to the criminal conduct. The idea is to collect the salient thoughts, emotions, and actions. Especially important are any changes in the defendant and his or her environment. These changes may be critical in explaining the timing of the offense. Forensic clinicians must be able to address the specific timing of the criminal conduct with reference to insanity, i.e., “Why then?”

116

Richard Rogers

Good rapport is an essential requirement before proceeding with the defendant’s account of the time of the offense. In beginning the interview process, it is often useful to collect background or other material that is not especially intrusive. Forensic clinicians must understand how the defendants’ experience insanity evaluations. Defendants are often asked to disclose highly personal, disturbing information, which will markedly affect their lives for the foreseeable future. Perspective taking is important for forensic clinicians in considering what is at stake for defendants being asked to provide a narrative account of their criminal actions. My own viewpoint is to approach defendants considerately and provide them with “an opportunity to disclose.” I take issue with an alternative approach, specifically that forensic clinicians have “a right to know.” I believe that demands, however subtle, negatively affect the professional relationship and may result in less than optimal data. Defendants vary considerably in their level of psychological functioning and their willingness to describe the time of the offense. In some cases, they provide relatively spontaneous accounts that require very little direction. It is useful not to interrupt this process, but take detailed notes including any verbatim quotes of what the defendant and others said at the time of the offense. In some instances, a particular defendant can be encouraged to provide more detail with a comment such as, “We have plenty of time—please tell me everything.” Some defendants launch into a narrative account, but their delivery has a rehearsed quality to it. Any facile conclusions that a particular defendant has “prepared” his or her account are premature. In many instances, the defendant has been asked repeatedly about the offense and may have described his or her actions on more than a dozen occasions. Such extensive repetition can easily produce a rehearsed quality. One option is to interrupt any nonspontaneous description by slowing the process and asking questions about the experience that are often omitted from these descriptions. As an illustration, the forensic clinician could say, “Take a moment to focus on your feelings . . . What were you feeling when occurred?” Many defendants need structure to best describe the time of the offense. Even when spontaneous accounts are provided, open-ended inquiries are frequently necessary. Structure can be provided by simple open-ended questions: 1. 2. 3. 4. 5.

What were you aware of? What was happening? What thoughts do you remember? What were you feeling? What caught your attention?

Despite this focus on detail, defendants will frequently overlook a number of hours on the day of the offense. Therefore, my preference is to link questions to both time and chronology in order to preserve a detailed and sequential account. The following inquiries assume a relatively intact defendant; the gist of the defendant’s responses is provided in brackets: 1. When did you awake? [7 A.M.] 2. What happened next? [Breakfast.] 3. Before we get there, let’s go moment by moment. Did you stay in bed for a bit or get right up? [Provides more details.]

Insanity Evaluations

117

4. So you got dressed and went downstairs. How long did this take? [Five minutes] 5. Five minutes—so it’s just after 7 in the morning. What were you thinking about as you went downstairs?

The goal is to exhaust the defendants’ memories regarding the day of the offense. Often, they will begin to look less certain or offer speculative remarks (“I guess”). It is important to clarify that the forensic clinician is only interested in what is actually remembered. An alternative method in obtaining the defendant’s narrative account is to ask him or her to re-experience certain components of that day. This re-experiencing typically involves a brief period of focusing (e.g., “Go back to . Picture what is going on.”). The forensic clinician asks the defendant to relate what was happening as if it was occurring at the present time. The defendant might be directed, “Close your eyes and stay with the experience. Tell me what is happening.” It also helps to have the defendant present this recall in the first-person present tense. However, I recently used a variation of re-experiencing with a male defendant, who frequently gave tangential tirades. I asked him to imagine a video camera that captured everything at the time of the offense. He was able to give a detailed and coherent account of what a video camera would have recorded, including actions and utterances. Corroboration by witnesses or physical evidence is very beneficial. An additional alternative is attaining the defendant’s narrative description in a “reverse chronology.” This approach can easily disrupt descriptions that appear rehearsed. Inquiries can take the following form: “What happened just before that?” With repeated inquiries, the forensic clinician can ascertain a sequence of events with their concomitant emotions and thoughts. I recently used the “reverse chronology” with an insanity case in which a male defendant was claiming amnesia for several days following the crime. By focusing on a later “memory” and going backwards stepby-step, he “recovered” more than a day of his purported memory loss. Data Sources in Reconstructing the Defendant’s Functioning The defendant is often the only available witness for the time of the offense. Even when witnesses are available, the defendant is typically the only source of information regarding internal events, including psychotic experiences. Therefore, a careful appraisal of the defendant’s account involving different assessment methods is strongly advised. My own preference is the use of multiple narrative accounts for the assessment of their credibility. As described above, the first account involves minimal intrusions. This approach may be repeated, although it is often more focused on key components of the defendant’s account. It should be noted that some inconsistencies are inevitable, given the reconstructive nature of memory recall. Specific probes are very useful in supplementing the defendant’s narrative accounts. The tenor of these probes is critical to rapport. When expressed as a need for clarification or a point of confusion, defendants are often receptive to the probes, and provide additional information. When presented as interrogation, defendants may respond negatively to the process. Collateral sources of data on the defendant’s functioning at the time of the offense can be valuable in confirming or disconfirming the defendant’s account. For example,

118

Richard Rogers

a defendant with a schizophrenic disorder may engage in behaviors consistent with that diagnosis. In one instance, the defendant with paranoid delusions had sealed his window with plastic and duct tape to avoid the poisonous gases. In most instances, the clinical evidence is less obvious. A paranoid defendant may become gradually more withdrawn and suspicious of others. Defendants with prominent psychotic symptoms often do not share their bizarre perceptions or delusional thinking. In some instances, their contact with others is minimal. In other cases, they are guarded about what is shared either because of their general distrust of others or specific beliefs about individuals in their immediate environment. Therefore, a lack of corroborative data requires further investigation in light of the defendant’s psychotic symptoms and characteristic responses to these symptoms. In summary, three interview-based modalities are proposed for the reconstruction of the defendant’s functioning at the time of the offense: (a) narrative accounts, (b) focused probes, and (c) collateral interviews. Equally important is the use of structured interviews for the purposes of standardizing the reported symptoms and their severity. For this purpose, the Schedule of Affective Disorders and Schizophrenia (SADS; Spitzer & Endicott, 1978) is strongly recommended. The SADS is a semi-structured diagnostic interview that goes beyond DSM-IV inclusion criteria to assess clinical characteristics and associated features of psychotic and mood disorders. It also provides selective coverage of anxiety disorders, substance abuse, and other disorders. SADS Part I addresses the current episode from two time perspectives: the worst period and the current time (i.e., the last week). Interrater reliability is outstanding for both time perspectives and even good for the assessment of past episodes via the SADS Part II (see Rogers, 2001; Rogers, Jackson, & Cashel, 2003). The SADS with minor modifications has been used successfully with insanity evaluations. Rogers and Shuman (2000a) recommended a modification of the SADS Part I so that the first-time perspective (i.e., the “worst period”) is used for the time of the offense. The second-time perspective remains the same (i.e., the “current time”). This modification allows the forensic expert to focus specifically on the time of the offense and compare symptoms and impairment with the present time. Early research reported by Rogers and Shuman (2000a) provided some evidence of discriminant validity for defendants clinically evaluated as sane and insane. Forensic practitioners are more likely to be trained in the administration of the Structured Clinical Interview of DSM-IV Disorders (SCID; First, Spitzer, Williams, & Gibbon, 1997) than the SADS. Arguments for the use of the SCID in insanity evaluations include its (a) broad diagnostic coverage, (b) direct correspondence with DSM-IV criteria, (c) convenient format, and (d) general popularity among mental health professions. The first two points are valid. However, my recommendation of the SADS is based on following reasons: 1. Symptom severity. The determination of insanity relies on the severity of key symptoms rather than their mere presence. The SADS provides anchored ratings for de termining the severity of symptoms. The majority of symptoms are categorized as either nonsignificant (i.e., “not at all” or “slight”) or gradations of clinical significance (“mild,” “moderate,” “severe,” or “extreme”). These gradations are based on the intensity (e.g., frequency and duration) and effect (e.g., distress and impair-

Insanity Evaluations

119

ment) of the symptoms. Therefore, SADS ratings provide meaningful data regarding symptom severity. 2. Symptom reliability. Because insanity determinations often focus on individual symptoms and their severity, the SADS is very useful because of its established symptom reliability for key psychotic and mood symptoms. 3. Retrospective assessments. The SADS was validated for use with multiple time periods including the worst period in an ongoing episode and past episodes. The validation is critical to retrospective evaluations of insanity. 4. Detection strategies for likely feigning. Rogers (1997) presented SADS data for when feigned mental disorders should be considered; these data are based on empirically validated detection strategies.

The centerpiece of insanity evaluations is the systematic use of interview methods for the establishment of retrospective diagnoses, prominent symptoms, and psychological impairment. Regarding diagnoses, the standard of practice should be standardized diagnoses using structured interviews, such as the SADS or the SCID. For the defendant’s functioning at the time of the offense, interview methods encompass: (a) interview-guided narrative accounts, (b) focused interviews with detailed probes, (c) collateral interviews, and (d) the SADS or SCID for standardizing the evaluation of Axis I symptoms

Psychological Testing and Insanity Traditional tests often provide helpful clinical data focused on the defendant’s current functioning. Except for mental retardation, testing typically yields extrapolated diagnoses that should not be used in forensic assessments. Within the domain of mental disorders, most tests provide clinical correlates that are associated with impaired functioning. The limitation of clinical correlates is that they often represent general distress rather than specific psychopathology. Recent work on the MMPI-2 restructured clinical scales (Tellegen et al., 2003) is an explicit acknowledgment of how general distress can militate against discriminant validity. Although promising, further studies are needed before measures such as the MMPI-2 (see Rogers, Sewell, Harrison, & Jordan, 2006) can establish reliable indicators of specific psychopathology. Rogers and Shuman (2000a) provide extensive coverage of psychological tests and their relevance to the assessment of criminal responsibility. Research data are summarized on the applicability of specific measures to such issues as insanity determinations, diagnoses, and response styles. Subsequent paragraphs will focus on the MMPI-2 as the most commonly used test in insanity evaluations (Borum & Grisso, 1995). Forensic clinicians are likely to be surprised by the dearth of empirical research examining the validity of the MMPI-2 in criminal forensic assessments such as insanity evaluations. Only a few investigations have evaluated differences in MMPI-2 profiles between sane and insane defendants, and these have yielded discrepant results. For example, Rogers and McKee (1995) in a descriptive study of the MMPI-2 found elevations for defendants clinically evaluated as meeting the M’Naghten (Ms: 6 = 77, 8 = 77, 1 = 69, and 2 = 67) and ALI1 (Ms: 8 = 82, 6 = 75, 2 = 71, 4 = 70, 7 = 70) insanity standards. Unexpectedly, higher elevations were found for pretrial

120

Richard Rogers

defendants with Axis I disorders who were evaluated as sane (Ms: 8 = 89, 6 = 86, 7 = 82, 2 = 78, 1 = 74, 4 = 72, 3 = 70). Expert conclusions by multidisciplinary teams, although not completely independent of the MMPI-2 data, yielded very few differences (i.e., scales 4 and 7 were lower for the insane groups). Clearly, these data do not suggest that higher elevations can be used to identify insane defendants. Moskowitz, Lewis, Ito, and Ehrmentraut (1999) examined the MMPI-2 profiles for a small sample of defendants found not guilty by reason of insanity (NGRI). An advantage of this approach is that all the defendants were legally determined to be insane. However, its main drawback was the elapsed time; on average, these defendants had been hospitalized for more than 5 years. Using averages, the complete lack of elevations on clinical scales could easily be attributable to their extensive postacquittal treatment. A large archival study of NGRI patients by Hays (1999) yielded similar results with unelevated MMPI-2 profiles that were supplemented by unremarkable Rorschach data.2 In summary, MMPI-2 profiles do not distinguish between sane and insane defendants. Clinical elevations, per se, do not translate into greater impairment of legallyrelevant abilities. Instead, tests such as the MMPI-2 may provide useful data about clinical correlates and response styles (see below).

Response Styles and Insanity A cornerstone of insanity evaluations is the systematic appraisal of response styles, especially the evaluation of malingering. The assessment of malingering must extend beyond the current time to the time of the offense. This extension is relatively straightforward for an ongoing episode that evidences relatively little change across the intervening months. When the offense in question apparently occurred in a prior episode, malingering becomes challenging to assess. For instance, a female defendant may accurately report her current symptoms but fabricate her symptoms and concomitant impairment for the time of the offense. The systematic assessment of malingering relies predominantly on empiricallyvalidated detection strategies (Rogers, 1997, 2007; Rogers & Bender, 2003). These strategies emphasize the accuracy of individual classifications, rather than merely relying on group differences. For example, the rare-symptoms strategy uses a constellation of symptoms that are infrequently observed among genuine patients. Detection strategies are specific to both the type of dissimulation (e.g., malingering or defensiveness) and the domain (mental disorders, cognitive impairment, or medical complaints). For example, different strategies are used to evaluate feigned schizophrenia versus feigned mental retardation. Forensic clinicians must be well versed in detection strategies for malingering: 1. What are the specific detection strategies found in commonly used validity indicators and specialized scales? 2. Which detection strategies are the most accurate for feigned mental disorders versus feigned cognitive impairment?

Insanity Evaluations

121

This section focuses only on feigned mental disorders, which are a common form of malingering in insanity evaluations. For issues of feigned amnesia or mental retardation, professional resources are readily available (Reynolds, 1998; Rogers, 1997; Rogers & Bender, 2003). A recent survey of experts (Lally, 2003) found that three measures of feigned psychopathology were commonly used in forensic practice: the MMPI-2, the PAI, and the SIRS. Each measure is briefly summarized with attention to its detection strategies. MMPI-2: The MMPI-2 is used extensively to assess response styles that include malingering, defensiveness, and random responding. Rogers, Sewell, Martin, and Vitacco (2003) conducted a meta-analysis of the MMPI-2 and malingering that included 65 feigning studies that were supplemented by 12 diagnostic investigations. The key findings are summarized: X The F scale is commonly elevated in certain diagnostic groups, such as PTSD (M = 86.31), schizophrenia (M = 80.10), and depression (M = 71.28). Given the large standard deviations (i.e., greater than 20 points), extreme F elevations (> 100T) can easily occur in genuine patients with these disorders. X The Fp scale appears superior to F and Fb because of its conceptualization (i.e., a true rare-symptom strategy) and discriminability. With respect to the latter, the cut score of Fp > 9 for feigning produces very few false-positives and can be used across a range of Axis I disorders. X The DS scale, capitalizing on the erroneous-stereotype strategy, also appears to be generally effective with comparatively few false positives.

Forensic experts should carefully review MMPI-2 conclusions by other practitioners to ensure that standard procedures were employed. For example, some defendants will respond inconsistently to MMPI-2 items. An egregious error is the interpretation of an inconsistent profile, often producing extreme elevations on validity scales, as a feigned profile. Consider for a moment that a truly random profile is likely to have a raw F score of 30 (i.e., 50% endorsement of 60 items). As a flagrant example of substandard practice, one insanity defendant’s MMPI-2 profile was interpreted as feigned, despite a marked elevation on VRIN (i.e., indicates an inconsistent profile) and exceedingly brief administration time (i.e., less than ten minutes). As an important warning, computerized MMPI-2 interpretations of feigning often include inaccuracies and should not be used. As a further caution, clinicians are often tempted to use audiotaped MMPI-2 administrations for defendants with limited reading comprehension. Audiotaped administrations have limited validity for clinical profiles and no research whatsoever on feigning or other response styles. Any conclusions about malingering based on audiotaped administrations are completely unsubstantiated. PAI: The Personality Assessment Inventory (PAI; Morey 1991), is used extensively in forensic cases because of its excellent psychometrics and easy reading level (fourth grade), which is essential to many forensic assessments. Key findings for the PAI and feigning are summarized: X Low scores on the PAI NIM scale appear useful in screening out patients for whom malingering is unlikely (Rogers, Sewell, Cruise, Wang, & Ustad, 1998). X Extreme scores on NIM (≥ 110T) or the Malingering Index (≥ 5) rarely occur but are indicative of feigning (Rogers et al., 1998).

122

Richard Rogers

X Data are mixed on the usefulness of the Rogers Discriminant Function (RDF; Rogers, Sewell, Morey, & Ustad, 1996). The RDF uses a sophisticated detection strategy, specifically unlikely patterns of psychopathology (Rogers & Shuman, 2005). In clinical populations, the RDF appears superior to other PAI indicators (Rogers et al., 1996). Moreover, Bagby, Nicholson, Bacchiochi, Ryder, and Bury (2002) found the RDF (a) outperformed both MMPI-2 and PAI indicators and (b) was not vulnerable to coaching. In forensic applications, however, Rogers et al. (1998) cautioned against the use of the RDF because it produced an unacceptably high false-positive rate (35.6 percent). At most, the RDF should only be used as a screen for potential malingering in forensic evaluations.

SIRS: The Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, 1992) is an extensively validated measure for the assessment of feigned mental disorders via detection strategies. Its eight detection strategies are highly effective; they are composed of two domains, spurious and plausible presentations (Rogers, Jackson, Sewell, & Salekin, 2005). Key findings of the SIRS are summarized: X Its interview-based format produces highly reliable results and can be applied across a broad range of forensic populations. X Its detection strategies are highly effective for both simulation designs (M Cohen’s d = 1.74) and known-groups comparisons (M Cohen’s d = 1.74; see Rogers, 1997). Importantly, the SIRS produces a very small percentage of false positives (≤ 3%).

Pilot research (Goodness & Rogers, 1999) found that SIRS was effective for the retrospective evaluations of defendants for the time of the offense. In this work, SIRS inquiries were asked about this specific period. More extensive research is needed before the SIRS is used retrospectively for the assessment of prior episodes.

Determinations of Wrongfulness This model of insanity evaluations includes sections that examine: (a) the reconstruction of the defendant’s functioning with (b) the integration of data sources and (c) the assessment of diagnostic issues and (d) response styles. A capstone issue for most insanity evaluations is the accurate determination of wrongfulness. As previously discussed, each forensic clinician is obliged to review general references and relevant case law. This section, adapted from Rogers and Shuman (2000a) distills key issues for the forensic determination of wrongfulness. The first step in the evaluation of wrongfulness is an examination of the defendant’s objectives in engaging in criminal acts. Two related issues are as follows: What did the defendant hope to accomplish? From his or her perspective, what was accomplished? In the majority of insanity referrals, the defendant’s objectives include a clear recognition of wrongfulness. In the remaining cases, the forensic clinician must evaluate closely the defendant’s awareness of wrongfulness and its role in conducting the acts in question. The crux of the determination can be stated simply: If the defendant’s beliefs and perceptions were accurate would they justify his or her actions?

Insanity Evaluations

123

Perceived threats. The most common reason why a defendant does not appreciate the wrongfulness of his or her actions is because of grossly misperceived threats. Often based on delusions and markedly distorted perceptions, the defendant acts to save him- or herself, or others from grave danger, torture, and even death. The following issues must be considered: 1. What does the defendant believe would happen if he or she did not “intervene?” 2. Assuming these beliefs are chronic (e.g., delusions), why were the “interventions” initiated at this point? 3. Did the intervention achieve another goal, such as revenge? 4. What alternatives to the criminal acts were considered, and why were they rejected? 5. Were the effects of severe psychopathology observed in multiple aspects of the defendant’s functioning? Alternatively, were they only limited to criminal conduct?

Perceived responsibilities. Defendants may perceive themselves as having an official capacity that requires the criminal behavior. In particular, defendants believe they have the legal or moral authority to carry out these actions. Occasionally, defendants will see misconstrued exigencies that necessitate their intervention. For example, a female defendant may believe that a national catastrophe can only averted by stopping an “Evil Genius.” If her delusional beliefs were true, her actions could be legally justifiable. The following issues should be considered: 1. What verbalizations and behaviors have been observed that would be consistent with the defendant’s misperceived official capacity? 2. How did the defendant conclude that he or she must engage in this conduct at this time? Were communications involved? 3. If command hallucinations were present, how did the defendant decide to act on their orders at this time? What were the perceived consequences of not complying with these commands?

In evaluating the wrongfulness prong, forensic clinicians attempt to establish credible patterns of perceptions, thoughts, and actions. For insane defendants diagnosed with schizophrenia, a common pattern is a gradual increase of psychotic symptoms and behavior responses to these symptoms. Efforts to control the psychotic thinking become increasingly less effective. Likewise, general deterioration in day-to-day functioning is observed. For other diagnoses, similar patterns (i.e., intensification of symptoms and deterioration of functioning) are often observed. In cases of severe depression, a mother may grossly misperceive her children to be suffering from unspeakable suffering and believe that she has the moral duty to end such suffering. While deserving full investigation, it is quite possible for such a defendant to appreciate both legal and, where applicable, moral wrongfulness. Regarding the latter, relevant issues include (a) communications and beliefs about the role of some perceived deity in the demise of her children, and (b) her interpretations of and compliance with religious writings.

124

Richard Rogers

Forensic Decision-Making Rogers and Shuman (2000a) provide a clinical data base from 411 insanity cases. Its tables and accompanying text provide forensic clinicians with useful reference points for rendering insanity opinions. In addition, some forensic clinicians may wish to apply the Rogers Criminal Responsibility Assessment Scales (R-CRAS; Rogers, 1984) as a guide to their forensic decision-making. Its decision model, validated primarily on the ALI standard, operationalized key components on criminal responsibility. The test-retest reliability (average interval of 2.7 weeks) of the ALI model is very good (M kappa = .81), especially considering the retrospective nature of this assessment process. An extensive re-analysis of R-CRAS data (Rogers & Sewell, 1999) provided strong evidence of its construct validity. The R-CRAS has received strong criticisms (e.g., Melton et al., 1997), partially due to its endorsement of conclusory opinions. Forensic clinicians should weigh the validity data and criticisms for themselves3 (see Rogers & Shuman, 2005). Especially for beginning clinicians, the R-CRAS may be viewed as a useful guide to their forensic decision making.

Case Example Although the information included in the following case illustration is a matter of public record, the identity of the defendant has been masked to avoid unnecessary intrusions on her privacy. Ms. Chavez was a 22-year-old unmarried Hispanic-American woman who was charged with murder and aggravated arson in causing the death of her mother. She was previously employed by a domestic cleaning service. Her employment was terminated after she complained vehemently about “spider bites” on her head and limbs. Her employers brought her to the hospital following her attempt to “burst” and “burn” the poisonous sacs she believed were deposited by the spiders. Diagnosed with a schizophrenic disorder, she was released from the hospital with antipsychotic medication. She reported that her general practitioner became increasingly concerned about her deteriorated state and had taken a personal interest in her case, including an invitation to Thanksgiving dinner. In the following months, she was unable to work and became increasingly preoccupied with venomous spiders and poisoned ear drops. She also became concerned that her apartment was under surveillance because her mother seemed to know too much about her activities. Ms. Chavez was convinced that several family members had conspired to cheat her out of her inheritance. Several acquaintances had convinced her that she needed further hospitalization. On the very day she returned to her apartment, her ears became inflamed and her mother also called. These coincidental events “proved” to her that she was under surveillance by her mother who was also the ringleader in a conspiracy against her. She drove to her mother’s house. Not accepting her mother’s repeated denials, she repeatedly stabbed her mother and dragged her to the bathtub. She set the house on fire and left immediately for California. My evaluation was conducted on three days across a period of two months. In addition to clinical interviews, I used the SADS retrospectively on two separate occasions to assess the presence and severity of her Axis I disorders at the time of the offense. The

Insanity Evaluations

125

SIRS and PAI were also administered. The record review included police investigative reports, prior medical and psychiatric records, and extensive documentation for the last ten months of her behavior at the county jail. In conducting an insanity evaluation with Ms. Chavez, the onset and course of her schizophrenic disorder was well established. The SADS interview data was used to determine the paranoid delusions, disorganized thinking, and negative symptoms (e.g., affective flattening). The SADS was also used to integrate data from other sources including collateral interviews and review of hospital records. Despite consistent diagnostic data, the reported involvement of her general practitioner, even after she lost her health benefits, seemed highly unusual. After several attempts, her former physician was finally contacted; her doctor confirmed having informal contacts with the defendant and inviting her to Thanksgiving dinner. In applying the M’Naghten standard, Ms. Chavez clearly met the “nature and quality” prong. She understood that stabbing her mother would cause serious injury and likely her death. She apparently gave her mother multiple chances to “come clean” before fatally stabbing her in the chest. Her actions in killing her mother were clearly motivated by her paranoid delusions. In this respect, she would have clearly met the now-defunct “product rule.” In evaluating the M’Naghten standard, was she motivated by delusional beliefs in self defense? Clearly, Ms. Chavez was convinced that she was being tormented and that poison-based inflammation could lead to scarring and permanent hearing loss. However, no clinical data suggested that she believed her life was in imminent danger. Moreover, she was able to “escape” this tormenting at least when she was hospitalized and likely when not residing in her apartment. Interestingly, her ideas about the family members conspiring to defraud her may have had a factual basis. Other facets of wrongfulness include “conduct required by official duties” and “misconstrued exigencies.” Ms. Chavez had never seen herself as operating in an official capacity; she does not identify with the government and is generally suspicious of its motives. Moreover, she does not actively practice any religion. Could her actions be seen as a misconstrued exigency? I do not believe so. Because she had experienced similar symptoms for several months, I was unable to find any misperceived catastrophe that would be averted by her actions. Wrongfulness needs to be evaluated for each offense. Beyond the homicide, what were the reasons for the aggravated arson? Based on extensive interviewing, two motivations emerged for the arson: (a) Ms. Chavez believed fire purifies witchcraft, and (b) she knew it would eliminate fingerprints. Regarding the former, she suspected that her mother had practiced witchcraft because of her knowledge of poisons and spiders. Regarding the latter, Ms. Chavez was clearly aware that her actions were criminal and acknowledged that she was attempting to destroy evidence. In summary, the case of Ms. Chavez illustrates the integration of clinical data and the subsequent analysis of insanity components. In conducting insanity evaluations, multiple data sources are essential for the corroboration of retrospective functioning. Although the defendant’s account of the physician’s involvement appeared implausible, it was important to confirm or disconfirm this account. In the analysis of insanity components, forensic clinicians may be tempted to equate psychotic motivations with insanity. The case of Ms. Chavez provides a useful example regarding how each facet (self defense, defense of others, official duties, and misconstrued exigencies) of wrongfulness should be systematically evaluated for each criminal offense.

126

Richard Rogers

Conclusions Insanity evaluations represent the most challenging forensic assessments within the criminal domain. Beginning forensic clinicians should seek close and competent supervision in evaluating retrospectively the defendant’s diagnosis and impairment at the time of the offense. By using a linear best-fit model and standardized diagnoses, biases, and misdiagnoses can be minimized. The credibility of the defendant’s account must be considered from multiple data sources. In addition, formal responses styles (e.g., malingering) should be systematically assessed. The fundamental standard for insanity evaluations is comprehensive assessment of diagnosis, symptoms, and associated features, using the best validated measures. Forensic decision-making is an essential component of insanity evaluations. It is critically important that forensic practitioners have expert knowledge of both the legal standard (both statutes and relevant case law) and its clinical operationalization (see Rogers & Shuman, 2005). For each component of insanity, a critical analysis of the clinical data is needed within a legal–empirical–forensic paradigm. Endnotes 1. South Carolina uses the language of the ALI standard for its guilty-but-mentally-ill (GBMI) verdict. 2. In general, the scores are slightly lower than found in Exner’s normative data for nonpatient adults. 3. Melton et al.’s analysis appears to lack objectivity; they tout their own formulation that is devoid of validation (see Rogers & Shuman, 2000b) while severely criticizing the RCRAS’ extensive validation.

References American Law Institute. (1962). Model penal code, Proposed official draft. Philadelphia, PA: Author. Bagby, R. M., Nicholson, R. A., Bacchiochi, J. R., Ryder, A. G., & Bury, A. S. (2002). The predictive capacity of the MMPI-2 and PAI validity scales and indexes to detect coached and uncoached feigning. Journal of Personality Assessment, 78, 69–86. Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evaluations. Professional Psychology: Research and Practice, 26, 465–473. Borum, R., Otto, R., & Golding, S. (1993). Improving clinical judgment and decision making in forensic evaluation. Journal of Psychiatry and Law, 21, 35–76. Daubert v. Merrell Dow Pharmaceutical, 509 U.S. 579 (1993). Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954). First, M. B., Spitzer, R. L., Williams, J. B. W., & Gibbon, M. (1997). Structured Clinical Interview of DSM-IV Disorders (SCID). Washington, DC: American Psychiatric Association. Gee, M. M. (2003). Modern status of test of criminal responsibility-state cases. American Law Reports (4th ed.), 9, 526–543. General Electric Co. v. Joiner, 522 U.S. 136 (1997).

Insanity Evaluations

127

Goodness, K. R., & Rogers, R. (1999, August). Retrospective malingering detection: The validation of the R-SIRS and CT-SIRS. Paper presented at the American Psychological Association annual convention, Boston, MA. Gutheil, T. G. (2002). Assessment of mental state at the time of the criminal offense: The forensic examination. In R. I. Simon & D. W. Shuman (Eds.), Predicting the past: The retrospective assessment of mental states in civil and criminal litigation (pp. 73–99). Washington, DC: American Psychiatric Press. Hays, R. M. (1999). A comparison of persons found not guilty by reason of insanity and mentally disordered offenders in outpatient treatment using Rorschach and MMPI2 data. Unpublished dissertation, Pacific Graduate School of Psychology, Palo Alto. Heilbrun, K. S. (2001). Principles of forensic mental health assessment. New York: Kluwer. Insanity Defense Reform Act of 1984, Pub. L. No. 98–473, Sec. 401, 402, 20 (1984). Keilitz, I., & Fulton, J. P. (1983). The insanity defense and its alternatives: A guide to policy makers. Williamsburg, VA: National Center for State Courts. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Lally, S. J. (2003). What tests are acceptable for use in forensic evaluations? A survey of experts. Professional Psychology: Research and Practice, 34, 491–498. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin C. (1997). Psychological evaluations for the courts (2nd ed.). New York: Guilford. M’Naghten’s Case (1843). 10 Cl. & F. 200, 8 Eng. Rep. 718. Morey, L. C. (1991). Personality Assessment Inventory: Professional manual. Tampa, FL: Psychological Assessment Resources. Moskowitz, J. L., Lewis, R. J., Ito, M. S., & Ehrmentraut, J. (1999). MMPI-2 profiles of NGRI and civil patients. Journal of Clinical Psychology, 55, 659–668. Reynolds, C. R. (Ed.) (1998). Detection of malingering during head injury litigation. New York: Plenum. Rogers, R. (1984). Rogers criminal responsibility assessment scales (RCRAS) and test manual. Odessa, FL: Psychological Assessment Resources. Rogers, R. (Ed.) (1997). Clinical assessment of malingering and deception (2nd ed.). New York: Guilford. Rogers, R. (2000). The uncritical acceptance of risk assessment in forensic practice. Law and Human Behavior, 24, 595–605. Rogers, R. (2001). Handbook of diagnostic and structured interviewing. New York: Guilford. Rogers, R. (2002). Validating retrospective assessments: An overview of research models. In R. I. Simon & D. W. Shuman (Eds.), Predicting the past: The retrospective assessment of mental states in civil and criminal litigation (pp. 287–306). Washington, DC: American Psychiatric Press. Rogers, R. (2003). Standardizing DSM-IV diagnoses: The clinical applications of structured interviews. Journal of Personality Assessment, 81, 220–225. Rogers, R. (Ed.) (2007). Clinical assessment of malingering and deception (3rd ed.). New York: Guilford, in preparation. Rogers, R., Bagby, R. M., & Dickens, S. E. (1992). Structured interview of reported symptoms: Professional Manual. Tampa, FL: Psychological Assessment Resources. Rogers, R., & Bender, S. D. (2003). Evaluation of malingering and deception. In A. M. Goldstein (Ed.), Comprehensive handbook of psychology: Forensic psychology (Vol. 11; pp. 109–129). New York: Wiley.

128

Richard Rogers

Rogers, R., Jackson, R. L., & Cashel, M. L. (2003). SADS: Comprehensive assessment of mood and psychotic disorders. In M. Hersen, M. J. Hilsenroth, & D. J. Segal (Eds.), The handbook of psychological assessment, Volume 2: Personality assessment (pp. 144–152). New York: Wiley. Rogers, R., Jackson, R. L., Sewell, K. W., & Salekin, K. L. (2005). Detection strategies for malingering: A confirmatory factor analysis of the SIRS. Criminal Justice and Behavior, 32, 511–525. Rogers, R., & McKee, G. R. (1995). Use of the MMPI-2 in the assessment of criminal responsibility. In Y. S. Ben-Porath, J. R. Graham, G. C. N. Hall, R. D. Hirschman, & M. S. Zaragoza (Eds.), Forensic applications of the MMPI-2 (pp. 103–126). Newbury Park, CA: Sage. Rogers, R., & Sewell, K. W. (1999). The R-CRAS and insanity evaluations: A re-examination of construct validity. Behavioral Sciences and the Law, 17, 181–194. Rogers, R., Sewell, K. W., Cruise, K. R., Wang, E. W., & Ustad, K. L. (1998). The PAI and feigning: A cautionary note on its use in forensic-correctional settings. Assessment, 5, 399–405. Rogers, R., Sewell, K. W, Harrison, K. S., & Jordan, M. J. (2006). The MMPI-2 restructured clinical scales: A paradigmatic shift in scale development. Journal of Personality Assessment, 87, 139–147. Rogers, R., Sewell, K. W., Martin, M. A., & Vitacco, M. J. (2003). Detection of feigned mental disorders: A meta-analysis of the MMPI-2 and malingering. Assessment, 10, 160–177. Rogers, R., Sewell, K. W., Morey, L. C., & Ustad, K. L. (1996). Detection of feigned mental disorders on the Personality Assessment Inventory: A discriminant analysis. Journal of Personality Assessment, 67, 629–640. Rogers, R., & Shuman, D. W. (2000a). Conducting insanity evaluations (2nd ed.). New York: Guilford. Rogers, R., & Shuman, D. W. (2000b). The “Mental Status at the Time of the Offense” measure: Its validation and admissibility under Daubert. Journal of the American Academy of Psychiatry and Law, 28, 23–28. Rogers, R., & Shuman, D. W. (2005). Fundamentals of forensic practice: Mental health and criminal law. New York: Springer. Shapiro, D. L. (1999). Criminal responsibility evaluations: A manual for practice. Sarasota, FL: Professional Resource Press. Spitzer, R. L., & Endicott, J. (1978). Schedule of Affective Disorders and Schizophrenia (3rd ed.). New York: Biometrics Research. Tellegen, A., Ben-Porath, Y. S., McNulty, J. L., Arbisi, P. A., Graham, J. R., & Kaemmer, B. (2003). The MMPI-2 restructured clinical (RC) scales: Development, validation and interpretation. Minneapolis, MN: University of Minnesota Press. Wiener, I. B. (1998). Rorschach differentiation of schizophrenia and affective disorder. In G. P. Koocher, J. C., Norcross, & S. S. Hill, III (Eds.), Psychologist’s desk reference (pp. 151–154). New York: Oxford University Press.

6 The Clinical Assessment of Psychopathy Michael J Vitacco and Craig S. Neumann

In an influential article from 1996, Dr. Robert Hare presented a history of the psychopathy construct, and defined it in terms of a “constellation of affective, interpersonal, and behavioral characteristics, including egocentricity; impulsivity; irresponsibility; shallow emotions; lack of empathy, guilt, or remorse; lying; manipulativeness; and the persistent violation of social norms and expectations” (Hare, 1996, p. 25). He also highlighted a psychopathy’s important connections to criminality and in violence risk assessments, and suggested that future research should focus on the integration of practical and theoretical aspects of the disorder (Hare, 1996). Without question, the 10 years following the publication of this seminal article has seen an unprecedented rise in the scientific study of psychopathy, demonstrated by the number of journal articles covering theoretical and applied issues devoted to psychopathy, the increasing number of young scientists who have chosen psychopathy as a construct worthy of study, and most recently, the formation of a professional society exclusively devoted to the study of psychopathy (i.e., the Society for the Scientific Study of Psychopathy [SSSP]). These developments highlight the increasing popularity of the study of psychopathy within the overall field of psychology. In attempting to pinpoint the reason for the popularity of research into psychopathy, Patrick (2006) eloquently stated, “The syndrome of psychopathy is inherently fascinating for this reason: It represents a severe form of psychopathology that is concealed by an outer facade of normalcy” (p. xiii). This conceptual context provides the background for the current chapter which aims to discuss the construct of psychopathy and its relevance to forensic assessment. With this goal in mind, we will address the following topics in this chapter: X The history of psychopathy X Changes in the way psychopathy has been used in the courtroom X The clinical assessment of psychopathy and provide an overview of assessment tools that are frequently used to assess psychopathy X Up-to-date information on the relationship between psychopathy and critical external correlates with a specific focus on violent and aggressive behavior X Recent advances in the treatment of psychopathy X A case study of a prototypical psychopath

129

130

Michael J Vitacco and Craig S. Neumann

Psychopathy Research: Rich History and a Promising Future Psychopathy was the first personality disorder to be recognized in the mental health field (see Millon, Simonsen, Birket-Smith, & Davis, 1998). Pinel (1801) referred to individuals with intact reasoning but who engaged in impulsive and antisocial behavior as suffering from mans sans delire (translated as “mania without insanity”). In other words, Pinel (1801) was differentiating between individuals whose illegal and immoral acts were due to mental deficits or psychopathology (e.g., psychotic symptoms) versus those who evidenced no such deficits. Capitalizing on this idea, Pritchard (1835) coined the term, “moral insanity” to portray individuals who could be committed to mental asylums without exhibiting classic symptoms of psychopathology. Notably, Pritchard (1835) attributed the formation of moral insanity to the breakdown of traditional family and religious values. In the United States, the prominent physician Benjamin Rush discussed the importance of constitutional deficits in understanding psychopathy (Rush, 1812). Rush conjectured that individuals suffering from psychopathy did not lack in intellectual skills or manifest mental illness, yet continued to engage in antisocial behavior. Initial clinical descriptions of psychopathy, although informative, contained several weaknesses that limited psychopathy’s usefulness. First, early theorists of psychopathy discarded the idea that science should be dispassionate. Instead, they combined religious and scientific elements to explain human behavior. Second, early descriptions of psychopathy operated without the safety of a nomological net (see Cronbach & Meehl, 1955). A nomological net is an interlocking system of ideas that improve our understanding of a construct. Without such a framework, clinical constructs were applied haphazardly. As an illustrative example, Pritchard’s early description of psychopathy shared symptoms with a wide array of mental disorders. As such, this diagnosis lacked discriminant validity. The construct of psychopathy was provided a significant boost by the publication of Hervey Cleckley’s (1941) seminal work titled, The Mask of Sanity. Cleckley (1941) adhered to early descriptions of psychopathic individuals as appearing without obvious intellectual or mental defects although still engaging in antisocial behavior. Arguably, Cleckley’s (1941, 1976) most important contribution was his development of a list of sixteen prototypic traits manifested by the psychopath. As outlined in Table 6.1, the Cleckleyan perspective focused primarily on pathological personality traits yet included various behavioral indicators emphasizing antisocial behavior. Cleckley’s work laid the groundwork for more rigorous scientific study of the psychopathy construct. Not surprisingly, the criteria listed in Cleckley’s discourse continue to generate interest in modern research on psychopathy even 70 years after its initial publication. The research on psychopathy for the two decades following the publication of Cleckley’s book primarily focused on evaluating personality traits and behavior. Hans Eysenck was influential in ideas related to the nature and etiology of the psychopathic personality. He proposed that three dimensions—psychoticism, extroversion, and neuroticism—would be extremely helpful to understanding psychopathic behavior (Eysenck, 1964). Specially, he posited that psychopathy was defined by high levels of extraversion and psychoticism which, in turn, were linked to impulsive sensation seeking (Eysenck, 1964). A second contribution was Eysenck’s discussions regarding

The Clinical Assessment of Psychopathy

TABLE 6.1 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16.

131

Cleckley’s Descriptors of Psychopathy

Superficial charm and higher intelligence. Absence of delusions and irrational thinking. Absence of nervousness. Unreliability. Untruthfulness and insincerity. Lack of remorse or shame. Inadequately motivated antisocial behavior. Failure to learn from experience (poor judgment). Egocentricity and incapacity for love. General poverty in major affective reactions. Specific loss of insight. Unresponsiveness in interpersonal relationships. Fantastic and uninviting behavior with drink (sometimes without). Threats of suicide rarely carried out. Sex life is impersonal, trivial, and poorly integrated. Failure to follow any life plan.

the heritability of psychopathy, which continues to be a major theme in modern psychopathy research (e.g., Viding, Blair, Moffitt, & Plomin, 2005). Another theorist who was particularly influential was Ronald Blackburn, a professor of clinical psychology at Liverpool University. Dr. Blackburn proposed the existence of psychopathy subtypes on the basis of their differential relationship to anxiety (Blackburn, 1968). Blackburn’s theory of psychopathy rested on the idea that there were two types of psychopaths: primary and secondary. Primary psychopaths were defined by the absence of anxiety, in contrast to secondary psychopaths who maintained all the behavioral features of the disorder, yet were highly anxious and introverted. Blackburn was influential in discussing how measurement of psychopathy should occur (Blackburn, 1975) and viewing psychopathy as a brain-based disorder (Blackburn, 1979). This early work assisted in improving the measurement and validity of psychopathy (see Blackburn, Logan, Renwick, & Donnelly, 2005). These early ideas set the stage for psychopathy’s prominence in modern psychopathology research. To that end, no individual has had more of an impact on the field of psychopathy than Dr. Robert Hare, now a professor emeritus at the University of British Columbia. Hare (1968) first noted that psychopaths, demarcated by MMPI scores, had distinct responses on skin resistance in response to potential electric stimuli when compared to nonpsychopaths. Capitalizing on early successes, Hare (1970) published a book titled Psychopathy: Theory, and Research that summarized the fledgling field of psychopathy and set a course for future research and forensic/ clinical practice. His book highlighted various assessment strategies, including cognitive, objective personality inventories (e.g., MMPI), and projective personality tests (e.g., Rorschach Inkblot Test) that were used at the time to assess psychopathy. However, it was clear that none of the contemporary measures were adequate for

132

Michael J Vitacco and Craig S. Neumann

assessing the psychopathy construct and thus development of an instrument to precisely and comprehensively assess for psychopathic tendencies was desperately needed. To address this short coming, Hare developed what is now considered the gold-standard psychopathy assessment tool (i.e., the Psychopathy Checklist–Revised, Hare ([2003]; see below for more on the PCL-R and its derivatives).

Psychopathy as a Psycholegal Construct It was not long after the psychopathy construct initially appeared in medical and behavioral science literature that it was introduced into court proceedings as a psycholegal concept. The impact of psychopathy on the law can be evidenced by its widespread use in case law, with over 500 citations in both trial and appellate courts and over 450 references to psychopathy in law reviews and legal periodicals (Erickson, Vitacco, & Rogers, 2006). What is clear from reviewing case law is that psychopathy has evolved as a psycholegal construct and those changes have mirrored developments in its clinical application. The early use of psychopathy in the legal setting was used similarly to current use of legal insanity, or in other words, to limit or nullify meas rea (i.e., culpable mental state). As such, the diagnosis of psychopathy meant that an individual would be sent to a mental hospital rather than prison. Given the substantial overlap between Pritchard’s (1835) symptoms of psychopathy and mental illness, this finding is not altogether surprising. Erickson et al. (2006) provided several examples of the early use of psychopathy within the courtroom. A case illustrating the early use of psychopathy was found in Alabama. In Andreson v. Alabama (1922) the Supreme Court of Alabama applied psychopathy in an exculpatory fashion. The court stated: It may be said that thought is the legislative power of a human being, just as the will is the executive power of such a life. Insanity, without regard to origin, development, or degree, is a disease of the mind. And when the mental faculties of a human being (of the age of accountability) become impaired, as the result of a lesion of the brain, or by congenital or constitutional psychopathy or by retarded mental development or otherwise, to the degree recognized by law, the fact of whether or not there is accountability for crime committed by one suffering from such disease of the brain must be determined Andreson at 175 (citing Parsons v. Alabama, 81 Ala. 577, 596–7; 597 S. 854 [1887])

As shown by the above, psychopathy was associated with a variety of disorders (e.g., mental retardation or congenital brain defects) that negated the defendant’s ability to engage in free choice. However, soon psychopathy was used to justify longer sentences (e.g., as an aggravating factor). As the construct of psychopathy became refined and its connections to violence supported by research, the manner in which psychopathy was used in court changed as well. As will be discussed, psychopathy is strongly connected to criminal behavior and recidivism. As such, instead of being used to diminish responsibility, it is now routinely applied to justify longer prison sentences and, in some cases, capital punishment. This change in the legal application of psychopathy may be attributed to variety of causes, including shifting political policies related to crime and punishment, where

The Clinical Assessment of Psychopathy

133

retribution has taken greater weight in sentencing decisions. Erickson et al. (2006) described such a case. In Harris v. Oklahoma (2004), the Court of Criminal Appeals of Oklahoma held that the prosecution’s use of psychopathy to rebut defendant’s claims of mental illness was proper and that the jury could use the description of psychopathy presented by the prosecution’s expert in affixing the death penalty. Psychopathy has found its way into civil proceedings as well, most notably, in civil commitment for sex offenders. These statutes typically allow for involuntary commitment to a secure setting for as long as the individual poses a risk to sexually reoffend (see Jackson & Richards, this volume). In Roeling v. Florida (2004), the District Court of Appeal of the State of Florida found the use of assessment instruments utilizing the concept of psychopathy as admissible under the Frye standard (Frye v. United States, 1923). The Frye standard was set when the Court of Appeals for the District of Columbia indicated that that expert opinion is inadmissible unless that opinion is based on techniques that are “generally accepted” as reliable in the relevant scientific community. Although uses of psychopathy are growing, there have been some who have cautioned against misuses of psychopathy (see Edens, 2006). Eden’s cautions appear especially relevant when considering the weight given to psychopathy in judicial decision making. For instance, psychopathy scores from instruments such as the PCL-R are routinely introduced in capital sentencing hearings with devastating consequences (Edens, Petrila, & Buffington-Vollum, 2001). Edens, Guy, and Fernandez (2003) found that potential jurors were more likely to favor capital punishment when a juvenile defendant was described as exhibiting psychopathic traits. Likewise, psychopathy is often admitted into civil commitment hearings to detain sex offenders, although evidence indicates that psychopathy is not directly related to most types of sex offenses (Vitacco & Rogers, in press). In learning about forensic assessment, it is important to understand the limitations of each measure and not venture beyond the construct’s reliability and validity. Although psychopathy can inform risk assessment opinions, it should not be used to opine with certainty that an individual is going to commit future acts of violence, nor should it be used to justify a death sentence. Such statements are not supported by research and are uniformly unethical.

Assessing Psychopathy: Reviewing Rater-Based and Self-Report Instruments With the increasing attention given to psychopathy, specially designed instruments are now commercially available to assess for psychopathy in adults. In this next section we highlight two rater-based instruments (the Psychopathy Checklist–Revised [PCL-R] and the Psychopathy Checklist: Screening Version [PCL:SV]) and two selfreport instruments (the Psychopathic Personality Inventory–Revised [PPI-R] and the Self-Report of Psychopathy–Second Edition [SRP-II]). In discussing these measures, we present information regarding the overall development and psychometric properties of each psychopathy instrument. Information regarding the external validity of the PCL-R and PCL:SV will be saved for a later section highlighting the relationship between violent behavior and psychopathy.

134

Michael J Vitacco and Craig S. Neumann

Rater-Based Instruments The Psychopathy Checklist: Revised (PCL-R) Ten years after the publication of his initial volume on psychopathy, Hare (1980) published a manuscript discussing a research scale for assessing psychopathy. This measure consisted of twenty-two items that were designed to be highly consistent with the prototypical “Cleckley psychopath” (Cleckley, 1941, 1976). Using extensive file reviews and clinical interviews, researchers completed ratings on 143 male prisoners and found high internal consistency (α = .88) and strong interrater reliability (r = .93). For the first time, clinicians and researchers were armed with a tool to systematically study the construct of psychopathy. Given that the twenty-two psychopathy items were internally consistent and made up a coherent scale, they became the foundation for the first instrument designed specifically for the measurement of psychopathy: The Hare Psychopathy Checklist (PCL; Hare, 1980) and, subsequently, the Psychopathy Checklist–Revised (PCL-R; Hare, 1991, 2003). The Psychopathy Checklist–Revised (PCL-R; Hare, 1991; Hare, 2003) is a raterbased instrument that works best when conducted as a semistructured interview (plus review of collateral information) and requires the rater to score twenty items. Ratings are recorded on a three-point scale: “0” for trait that cannot be detected, “1” for present but not to a substantial degree, and “2” for present to a substantial degree. The PCL-R stemmed from Hare’s conceptualization of psychopathy in terms of an integration of both personality and behavioral characteristics. In doing so, he developed a sixteenpage interview with questions designed to assess behavior and personality across ten areas of functioning (e.g., early childhood and employment-related activities). As described in the 2005 edition of the Buros Mental Measurements Yearbook, the PCL-R is considered the “gold standard” for assessing psychopathy (Fulero, 1995). Reliability of the PCL-R The PCL-R is clearly the gold standard of psychopathy measurement. One of the reasons it is considered so reliable that studies on the reliability of the PCL-R have been very positive. We will review three types of reliability data for the PCL-R, including: (1) internal consistency, (2) interrater, and (3) test–retest. Regarding internal consistency, Hare (2003) reported excellent alpha coefficients in a sample of 4,891 prison inmates (α = .87) and a sample of 1,246 forensic patients (α = .87). These results indicate that the PCL-R is a homogeneous measure. In his review, Rogers (2001) summarized results from twelve studies that evaluated the interrater reliability of the PCL-R. When using the PCL-R total score, Rogers (2001) found the results to be “superb” (p. 304); however, results were less robust when using the PCL-R categorically (i.e., yes or no to the presence of psychopathy). Notably, recent evidence using taxometric analyses indicates that scores on the PCL-R are dimensional, and employing a cut score does not form a discrete class (Edens, Marcus, Lilienfeld, & Poythress, 2006). As such, researchers and clinicians may be best served by continuing to treat the PCL-R as a dimensional measure and use dichotomous classifications only for research. Finally, a few studies have examined test–retest reliability of the PCL-R. As noted by Rogers (2001) the test–retest of the PCL-R is especially important, given that psychopathy is considered to be a chronic disorder with an unremitting course. In the first study to evaluate test–retest reliability, Schroeder, Schroeder, and Hare (1983)

The Clinical Assessment of Psychopathy

135

found a generalizability coefficient of .89 in a sample of 301 inmates studied over a 5-year period. This study was completed with the original PCL that consisted of 22 items. In research using the PCL-R, Alterman, Cacciola, and Rutherford (1993) evaluated the 1-month test–retest stability in a sample of 88 methadone patients. Test–retest reliabilities were found to be quite good, with correlations ranging from .71 to .80 for methadone patients. Alterman et al. (1993) computed test–retest reliabilities differences as a function of availability of information. A notable finding was that reliability was best when the most information was available including an interview, file review, arrest record, and complete criminal history. In a 2-year follow-up with twohundred male and 25 female methadone patients, test–retest reliability of the PCL-R was found to be relatively stable (Rutherford, Cacciola, Alterman, McKay, & Cook, 1999). Although there is a paucity of studies evaluating the stability of the PCL-R, the few that have completed this rigorous step generally report positive results indicating that in adults, PCL-R scores tend to be relatively stable over time. Future research must continue to test the test-retest stability of the PCL-R. Construct Validity: The PCL-R Factor Structure The initial construct validity of the PCL-R was established through a common factor analysis with oblique rotation in a sample of 925 prisoners and 356 forensic inpatients (Hare, Harpur, Hakistan, Forth, & Hart, 1990). Results from a factor analysis with oblique rotation found a two-factor solution for the PCL-R, which consisted of callous and manipulative personality (F1) and chronic antisocial behavior (F2). Factor 1 and Factor 2 evidenced thirty percent overlap, indicating that each factor, although related, contributed uniquely to the construct of psychopathy. The two-factor model was widely researched across adult samples including adult prisoners, mentally disordered offenders, and substance abusers (Hare, Hart, & Harpur, 1991). At the same time, it is noteworthy to mention that other factor analytic studies have reported between two to seven factors for the PCL instruments (Neumann, Kosson, & Salekin, 2007). Debate regarding the underlying factor structure of the psychopathy construct intensified when Cooke and Michie (2001) reanalyzed several existing relevant data sets using Confirmatory Factor Analysis (CFA), an advanced statistical technique that can directly test the fit of any model with respect to the raw data through explicit specification of number of factors and other necessary parameters. In the case of psychopathy, CFA has been primarily used to test the fit of several competing models. Cooke and Michie (2001) used CFA with 2,067 individuals obtained from forensic and criminal settings in both North American and Canada. In their test of the traditional two-factor model, Cooke and Michie (2001) argued that the traditional twofactor model of psychopathy did not have good fit to the data. Cooke and Michie (2001) attempted to develop a model that better fit the PCL-R items. The fruits of their labor resulted in a selected set of only thirteen items, which were represented by three superordinate factors (though in total their model consisted of ten factors to represent the results in excellent fit (Normed Fit Index = .95 and Non-Normed Fit Index = .94). The model outlined by Cooke and Michie (2001) placed an increased emphasis on personality aspects of psychopathy and eliminated items measuring overt antisocial behavior which they concluded were a consequence of psychopathy and not related to the core disorder (Cooke, Michie, Hart, and Clark, 2004).

136

Michael J Vitacco and Craig S. Neumann

Thus, their PCL-R model consists of thirteen items that load on to one of six “testlets” (essentially first-order factors), which then load onto one of three respective secondorder factors: Arrogant and Deceitful Interpersonal Style (ADI), Deficient Affective Experience (DAE), and Impulsive and Irresponsible Lifestyle (IIL). These secondorder factors all load onto a single third-order factor. The development of the three-factor model represented an important turning point for factor models of the PCL-R as it stimulated new research. Despite many seemingly positive qualities, there are inherent problems in the three-factor model (see Hare & Neumann, 2006; Neumann, Hare, & Newman, 2007; Neumann, Vitacco, Hare, & Wupperman, 2005). In keeping with clinical tradition, Hare (2003) developed a four-factor model using eighteen of the twenty PCL-R items. This model offers several advantages over the three-factor model as it maintains items measuring antisocial tendencies. Hare and colleagues (Hare, 2003: Hare & Neumann, 2006) have labeled the four factors as interpersonal, affective, lifestyle, and antisocial tendencies. As illustrated in Figure 6.1 and Figure 6.2, the four-factor model can be conceptualized as either (a) a correlated model with four separate inter-related factors or as (b) a hierarchal model with one super-factor (see Neumann et al., 2007). Although relatively new, the four-factor has demonstrated strong fit via CFA in samples of mentally disordered offenders (Neumann et al., 2007; Vitacco, Rogers, Neumann, Harrison, &

PCL-R #1

PCL-R #6

PCL-R #2

PCL-R #7

PCL-R #4

Interpersonal

Affective

PCL-R #8

PCL-R #5

PCL-R #16

PCL-R #3

PCL-R #10

PCL-R #9

PCL-R #12

PCL-R #13

Lifestyle

Antisocial

PCL-R #18

PCL-R #14

PCL-R #19

PCL-R #15

PCL-R #20

Figure 6.1 The four-factor model can be conceptualized as a correlated model with four separate interrelated factors.

The Clinical Assessment of Psychopathy

    




 

137




        

Figure 6.2

The four-factor model could also be a hierarchal model with one super-factor.

Vincent, 2005) and male and female prisoners (Hare & Neumann, 2006; Neumann et al., 2007; Neumann et al., 2005). The Psychopathy Checklist: Screening Version (PCL:SV) In an attempt to expand the assessment of psychopathy to civil psychiatric populations, Hart, Cox, and Hare (1995), funded in part by the MacArthur Violence Risk Assessment project (Monahan & Steadman, 1994), developed a 12-item psychopathy screening measure. The PCL:SV is a rater-based method that functions optimally when used in a semistructured interview and review of collateral records. As discussed by Hart, Hare, and Forth (1994) the PCL:SV was designed to be a psychometrically sound instrument and conceptually linked to the PCL-R. Like the PCL-R, the ratings of the PCL:SV are scored on a threepoint scale: “0” for trait that cannot be detected, “1” for present but not to a substantial degree, and “2” for present to a substantial degree. As described in the manual, the validation sample of the PCL:SV consisted of 586 individuals spread across 11 different collection sites. Participants included university students, correctional inmates, forensic mental health patients, and civil mental health patients. Reliability of the PCL:SV The goal of the PCL:SV was to create a measure that although shorter, approximated the PCL-R. The authors of the PCL:SV were highly successful in accomplishing this goal. In conducting an Item Response Theory (IRT) analysis of the PCL:SV with 586 individuals from various settings, Cooke, Michie, Hart, and Hare (1999) found the PCL:SV to have properties highly similar to the PCL-R. In fact, they posited that the PCL:SV had properties so “strongly and linearly related to the PCL-R total scores that the scales can be considered metrically equivalent measures of the same psychological construct” (Cooke et al., 1999, p. 11). In other

138

Michael J Vitacco and Craig S. Neumann

words, the PCL:SV appears to measure a construct of psychopathy similar to the PCL-R, which is widely considered the gold standard of psychopathy assessment. Beyond structural properties, research has shown that the PCL:SV is highly reliable. Data presented on the eleven validation samples indicated that the total score of the PCL:SV was internally consistent (weighted mean alpha = .84), and similar results were found in the MacArthur Risk Assessment Study (α = .87; see Skeem & Mulvey, 2001). Interrater reliability was collected on seven of the PCL:SV validation samples. Psychometric properties were found to be good (M r = .61); however, reliabilities for individual items were quite varied (M rs ranging from .50 to .79). Again, the MacArthur Study demonstrated strong intraclass coefficients for total score (ICC = .84). In sum, clinicians and researchers should be assured that the PCL:SV is a reliable instrument. One notable weakness of PCL:SV research is the lack of studies focusing on test–retest reliability (see Rogers, 2001). Construct Validity: The PCL:SV Factor Structure As demonstrated in the PCL-R factor structure section, there continues to be controversy surrounding the factor structure of the PCL:SV. Skeem, Mulvey, and Grisso (2003), using data generated from 870 patients who participated in the MacArthur Violence Risk Assessment Study that tested various factor models of the PCL:SV stated, “The results indicate that Cooke and Michie’s (2001) three-factor model of psychopathy is more plausible than the traditional PCL two-factor model with these patients because it better describes the structure of the PCL:SV and specifically assesses personality deviation” (p. 51). However, the authors did not test Hare’s (2003) four-factor model. When the four-factor model was tested with the patients from the MacArthur study, Vitacco, Neumann, and Jackson (2005) found good fit for both the three- and four-factor models. Two findings from this study are especially noteworthy. First, as expected, the four-factor model accounted for more variance than the three-factor in predicting violence. Second, the parameters of the personality factors were stronger with the inclusion of the antisocial tendencies factor. This result demonstrates how the four factors work together in predicting violence. Hill, Neumann, and Rogers (2004) tested the factor structure of the PCL:SV in a sample of 149 male forensic psychiatric patients. They found acceptable model fit for the two-, three-, and four-factor models in this sample of mentally disordered offenders. Notably, the four-factor model achieved the most robust fit indices, and also out-performed the three-factor model in predicting institutional misbehavior at a six-month follow-up. The factor structure of the PCL:SV is far from settled and future research will no doubt continue to elucidate the underlying factor structure of the PCL:SV and its relationship to external variables (e.g., violence). Training to Administer PCL Instruments Individuals interested in administering the PCL instruments must receive proper training prior to using the PCL. It is insufficient to read the manual and a few articles before beginning to use it clinically. Formal programs are available that provide rigorous training in the administration and scoring of PCL instruments. Hare (2003) recommends, and we strongly concur, that only appropriately trained clinicians with knowledge of research literature and forensic experience administer the PCL-R. The most reliable scores occur when clinicians are provided access to a significant amount of information and conduct the

The Clinical Assessment of Psychopathy

139

formal PCL interview. Clinicians wanting to learn to administer PCL instruments are strongly encouraged to gain experience in PCL administration with a licensed psychologist with training in forensic psychology and structured interviews.

Specific Populations and PCL Instruments Assessing Females with PCL Instruments The assessment of psychopathy in females presents special challenges that warrant consideration above and beyond what was previously discussed. In a comprehensive review article, Nicholls, Ogloff, Brink, and Spidel (2005) discussed the ever-expanding use of psychopathy to females in clinical settings. The bottom line was that the results for women are highly consistent with those of men, especially concerning violence and recidivism. Their review echoes the findings of earlier research that psychopathy can be reliably measured in females (Vitale & Newman, 2001). However, many results denote important difference for psychopathy between men and women. In analyzing the PCL-R and its application to females there are three issues that deserve exploration: base rate, factor structure, and external correlates. Regarding base rate, there is little doubt that females exhibit a significantly lower base rate for psychopathy when compared to men (Jackson, Rogers, Neumann, & Lambert, 2002; Nicholls et al., 2005; Rutherford et al., 1996; Salekin, Rogers, & Sewell, 1997). From these results it appears that the prevalence for psychopathy is less in females or, alternatively, that the PCL-R does not completely capture the construct of psychopathy in females. Cale and Lilienfeld (2002) reported that although females have lower base rates, psychopathy measures typically work the same way independent of gender. However, as discussed in the next several paragraphs, applying the construct of psychopathy to females is not straightforward. Regarding factor structure, an early exploratory factor analysis by Salekin et al. (1997) with 103 female inmates found several cross loadings among items and two items (promiscuous sexual behavior and lack of realistic long-term goals) that loaded significantly in this female sample but not in traditional male samples. In a sample of 119 female jail inmates, Jackson et al. (2002) evaluated the underpinnings of the PCL-R. In this sample, they found that the three-factor model fit very well, whereas the traditional two-factor model did not fare well. Recently, Bolt, Hare, Vitale, and Newman (2004) employed a multigroup item response theory analysis on a large group of offenders and mental health patients that included 1,219 female offenders. Overall, the results found some support for the four-factor model in female offenders. Several items on the PCL-R provided less information about the psychopathic construct in female offenders compared to both male offenders and mental health patients. This was especially evident in items measuring overt antisocial and criminal behavior. Given that several items function differentially across genders, clinicians and researchers need to exercise caution in interpreting PCL scores in females. The final issue to be addressed in this section concerns differential relations evidenced between psychopathy and external correlates as a function of gender. The work of Vitale and colleagues (Verona & Vitale, 2006; Vitale & Newman, 2001; Vitale, Smith, Brinkley, & Newman, 2002) has been particularly influential in improving

140

Michael J Vitacco and Craig S. Neumann

the understanding of how psychopathy manifests itself in women. Some of the primary differences in the presentation of psychopathy in women are: (a) higher prevalence of comorbidity between internalizing symptoms and psychopathy, (b) weaker relationship between psychopathic traits and recidivism in females, and (c) lab results on perseveration tasks are remarkably different from males. As echoed by several scholars (Hare, 2003; Nicholls et al., 2005, Verona & Vitale, 2006) assessment of psychopathy in females should not be done in a circumscribed fashion. Several questions remain regarding the reliability and validity of psychopathy in females. This gap in the literature appears to be slowly correcting itself as there are now systematic efforts devoted to the study of psychopathy in female populations. Once these studies are completed, the field should be on better footing to make stronger interpretative statements and better understand how psychopathy manifests itself in females. Assessing African Americans with PCL Instruments Assessing African Americans with PCL instruments has been the subject of significant research. This research was necessitated because initial validation studies relied exclusively on white inmates and forensic patients. Simply applying results obtained with European American and white Canadian samples to African Americans is a risky proposition. Similar to research on psychopathy in females, the results for African American samples have not always replicated those found for white individuals. In research on the original PCL, Kosson, Smith, and Newman (1990) presented data from three separate studies evaluating the PCL in both white and black male inmates. Kosson et al. (1990) found three commonalities between white and black inmates and psychopathy scores. First, based on PCL-R score totals, high levels of psychopathy do exist in African American inmates. Second, African Americans with high PCL scores manifested difficulties with passive avoidance (e.g., inhibiting a previous-exhibited response). Third, African-American psychopaths had similar offense histories to European-American psychopaths. However, the study also demonstrated that African Americans and European Americans manifested important differences on external correlates. African Americans had lower scores on a self-report measure of impulsivity and several items on the personality component of the PCL did not load as expected. In statistical modeling research that has tested for ethnic differences in the PCL-R and PCL:SV, the results have generally indicated that both instruments are generally consistent and unbiased across ethnicities. In a large sample of European American (n = 359) and African American (n = 356) inmates, Cooke, Kosson, and Michie (2001) found the PCL-R to evidence structural invariance with African-American and Caucasian participants. Likewise, Jackson, Neumann, and Vitacco (2007) found no structural differences in the PCL:SV when comparing African-American and Caucasian patients from the MacArthur Risk Assessment Study. Although demonstrating factor invariance, Jackson et al. (2007) found ethnicity to be a moderating variable between psychopathy and its relationship with anger and impulsivity. Overall, anger and psychopathy were strongly related in European Americans but more modestly associated in African Americans, and impulsivity was only significantly associated to psychopathy scores in the European-American sample. In sum, it appears that differences in structure and scoring of PCL instruments as a function of ethnicity are relatively minor (see Skeem, Edens, Sanford, & Colwell, 2003).

The Clinical Assessment of Psychopathy

141

Clinicians performing PCL-R/PCL:SV assessments can be confident that they are measuring psychopathy regardless of ethnicity, but should be aware of research demonstrating that differences exist in psychopathy’s link to critical external correlates as a function of ethnicity (e.g., Kosson et al., 1990; Jackson et al., 2007). Self-Report Instruments The Psychopathic Personality Inventory (PPI) The PPI consists of 187 items designed to measure self-reported psychopathic personality traits in noncriminal samples (Lilienfeld & Andrews, 1996) with a specific emphasis on personality characteristics that were linked theoretically to psychopathy. The original structure of the PPI consisted of eight scales: Machiavellian Egocentricity (ME), Social Potency (SP), Coldheartedness (CH), Carefree Nonplanfulness (CN), Fearlessness (FE), Blame Externalization (BE), Impulsive Nonconformity (IN), and Stress Immunity (SI). Recent research, relying on confirmatory factor analyses, has presented alternative factor structures. Benning, Patrick, Hicks, Blonigen, and Krueger (2003) explored the utility of the PPI in community-based adults and found that the structure of the PPI is best explained by two factors: (a) dominance in social situations and (b) antisocial behavior. In a revised manual, Lilienfeld and Windows (2004) proposed three PPI factors: (a) Self-Centered Impulsivity, (b) Fearless Dominance, and (c) Cold-Heartedness. Additional research on the factor structure of the PPI will assist in understanding the structure of the PPI. The psychometric properties of the PPI have been evaluated in several studies. Lilienfeld and Andrews (1996) found very good internal consistency for the PPI total score in a community sample (alpha = .91); however, the individual scales were much more variable and ranged from .67 (cold-heartedness) to .86 (fearlessness). Poythress, Edens, and Lilienfeld, (1998) found similar results for a sample of 55 young offenders, with total PPI (alpha = .91) and individual scales ranging from .72 to .91. The PPI has been compared with the PCL instruments with mixed results. Poythress et al. (1998) compared the PPI to the PCL-R in a sample of 55 prison inmates and found significant correlations between Machiavellian Egocentricity and PCL-R total scores (r = .57) and Factor 1 (r = .56). Kruh, Whittemore, Arnaut, et al., (2005) compared the PPI to the PCL:SV in a sample of 50 mentally disordered offenders. Like earlier results, correlations were moderate to strong for the total score (rs from .45 to .65). Correlations between the scale scores were lower, in some cases significantly so. As such, clinicians and researchers can be more confident in the total PPI score in measuring psychopathy. In addition, the PPI has been examined with the Personality Assessment Inventory (PAI; Morey, 1991). Sandoval, Hancock, Poythress, Edens, & Lilienfeld, (2000), with a sample of 100 male inmates, evaluated total PPI score with the PAI and found significant correlations with the Empathy (r = –.45), Aggression (r = .60), and Borderline (r = .45) scales. Edens, Poythress, and Watkins (2001) evaluated the PPI in a sample of 60 male offenders in relation to the PAI. The total score of the PPI was highly correlated with PAI scales of Aggression (r = .68) and moderately correlated with PAI scales Borderline (r = .39), and Dominant (r = .38). Regarding violence, Edens et al. (2001) found that the PPI predicted both nonviolent (r = .26) and violent (r = .37) institutional behavior. Likewise, Kruh et al. (2005) found the PPI total score significantly postdicted violent behavior.

142

Michael J Vitacco and Craig S. Neumann

The PPI has been used in research with female prisoners. For example, Chapman, Gremore, and Farmer (2003) evaluated the PPI in a sample of 153 incarcerated women. The authors found high internal consistency and test–retest reliability. However, a weakness of the results was that the authors found few differences comparing female inmates with female undergraduates. In another study using female inmates, Berardino, Meloy, Sherman, and Jacobs (2005) evaluated the PPI in a sample of 102 incarcerated females and found strong internal consistency (α = .89) for the PPI total score. Using the twofactor model of the PPI proposed by Benning et al. (2003) the researchers found small to moderate correlations (rs from .19 to .58) between the PPI and PCL-R, with the strongest correlations occurring between the PCL-R and PPI total scores (rs from .40 to .58). The PPI is a relatively recent measure of psychopathic traits that is beginning to produce significant research. Taken in their entirety, the results suggest that the PPI is a useful measure for assessing psychopathy. There are many appealing aspects to the PPI, and it will likely continue to gather support as a research and clinical instrument. The Self-Report of Psychopathy–Second Edition (SRP-II) The SRP-II (Hare, 1991) is a 60-item self-report scale of psychopathy. The SRP-II was designed to parallel the original factor structure of the PCL-R (Zagon & Jackson, 1994), but many studies have found its applicability to offenders wanting. Initial results produced moderate correlations with the PCL-R total and factor scores; subsequent studies have found modest to low moderate relationships and limited information addressing reliability (Hare, 2003). In applying the SRP-II to mentally disordered offenders, Vitacco (2003) found low internal consistencies and poor convergence with the PCL-R. Widiger et al. (1996) administered the SRP-II to 400 males participating in the DSM-IV field trials for personality disorders. The measure correlated modestly with Antisocial Personality Disorder (r = .35) and with ten items from the PCL-R (r = .38). These moderate relationships raised questions about the concurrent validity of the SRP-II. Subsequent research has evaluated the relationship between the SRP or SRP-II and PCL instruments. Using a male forensic sample, Hare (1991) found moderate correlations between the SRP-II and the PCL-R (Factor 1 r = .50, Factor 2 r = .44, and total PCL r = .54). Other research has used university students in their validation studies. As evidence of concurrent validity, Forth, Brown, Hart, and Hare (1996) used the SRP-II in a sample of 150 university students, and found moderate correlations for total scores the SRP-II and the PCL:SV scores (r = .55 for females and r = .62 for males). In reviewing evidence for concurrent validity, studies have evaluated the relationship between the SRP-II and self-report instruments. Salekin, Trobst, and Krioukova (2001) utilized the SRP-II in a sample of 326 university students. The SRP-II exhibited convergent validity with other measures of personality disorders (Antisocial scale from the PAI, M r = .43) and with schizotypal personality traits in females (r = .29). Likewise, Crocker, Mueser, Drake, McHugo, & Alterman, (2005) administered the SRP-II to 223 individuals from community-based mental health centers. Overall, Factor 1 of the SRP-II evidenced low internal consistency (.49) and the overall scores on the SRP-II did not predict violence or criminal behavior. Currently, the reliability and validity of the SRP-II do not warrant its use as a clinical instrument. There are three inherent problems with the SRP-II. First, the internal consistency of the SRP-II has been unreliable. Second, it has demonstrated only modest

The Clinical Assessment of Psychopathy

143

relationships with the PCL-R/PCL:SV across multiple studies. Finally, the SRP-II has not demonstrated relationships with violent and aggressive behavior. Currently, the SRP-II is undergoing revisions that hopefully will strengthen its psychometric properties and make it more applicable to applied clinical settings. Until that time, we do not recommend using the SRP-II in clinical settings. Cautions Regarding the Use of Self-Report Instruments to Measure Psychopathy Using self-report instruments to measure psychopathy presents several unique challenges (see Lilienfeld & Fowler, 2006). We wish to mention three primary problems: (a) Psychopaths frequently minimize their own pathology, making self-report instruments vulnerable to response alterations, (b) psychopaths lack insight into their own emotions and behaviors, and (c) psychopaths lack insight into normative behaviors. These inherent issues with psychopaths limit the utility of self-report instruments. Likewise, in a simulation design with juvenile offenders, psychopathy measurements were significantly altered from baseline with the adolescents only provided simple instructions (Rogers, Vitacco, Jackson, Martin, & Collins, 2002). Certainly, adult offenders could have success at minimizing scores on self-report instruments. With that in mind, the PPI possesses two validity indices: Unlikely Virtues and Deviant Responding. However, these scales have yet to be subjected to rigorous validation. Self-report instruments are an efficient way to assess for psychopathy; however, this efficiency needs to be weighed against limitations in their accuracy. Two possibilities exist as how to best utilize self-report instruments in forensic assessment. One possibility is to employ both self-reports and structured interviews to comprehensively assess psychopathic traits via a multimethod approach. A second approach is to employ self-reports as time saving screens and follow-up with a PCL measure when it is deemed necessary. Psychopathy and its Relationship to Violent Behavior and Recidivism The PCL-R/PCL:SV are widely employed in correctional and forensic settings due to their proven relationship with aggressive behavior and recidivism. This relationship has led some to state that the PCL should be employed in any evaluation assessing risk assessment (Hart, 1998). Such strong statements are made due to multiple studies of criterion validity demonstrating a link between psychopathy and aggression across several clinical samples. Research on violence and the Psychopathy Checklist Revised (PCL-R; Hare, 2003) and its derivative, the Psychopathy Checklist: Screening Version (PCL:SV; Hart et al., 1995), has been informed by multiple studies of postdictive and predictive validity (Dolan & Doyle, 2000; Hemphill, Hare, & Wong, 1998; Hill et al., 2004; Neumann, Vitacco, Hare, & Wupperman, 2005; Vitacco et al., 2005; Walsh, Swogger, & Kosson, 2004). This section will highlight several of the most important studies demonstrating the relationship between psychopathy and violence. In a meta-analysis consisting of 18 studies, Salekin, Rogers, and Sewell (1996) computed effect sizes from 18 studies of violence and the PCL-R and posited, “Despite its limitations, the PCL-R appears to be unparalleled as a measure for making risk assessments with white male inmates” (p. 211). Of note, behavioral characteristics better predicted general recidivism, but both personality and behavioral aspects were related to violent recidivism. In a subsequent meta-analysis, Hemphill et al., (1998)

144

Michael J Vitacco and Craig S. Neumann

posited, “the PCL-R should be considered a primary instrument for guiding clinical appraisals of criminal recidivism and dangerousness” (p. 160) and that “psychopaths had general recidivism rates three times of that of nonpsychopaths” (p. 160). Subsequent meta-analyses have produced highly divergent results. Gendreau, Goggin, and Smith (2002) found moderate to modest effect sizes between PCL scores and recidivism. In attempting to undermine the statement of Salekin et al. (1996) these authors questioned whether the PCL-R should be considered an “unparalleled” measure of risk assessment. However, this study excluded several studies that would have likely led to stronger results (see Douglas, Vincent, & Edens, 2006). In the most comprehensive meta-analysis to date, Leistico, Salekin, Decoster & Rogers (in press) evaluated effect sizes across 100 studies. The results were strong with higher psychopathy scores related to increased levels of antisocial and criminal behavior. Taken together, this research is generally supportive of the relationship between psychopathy and recidivism and violence. Despite these findings, readers are cautioned that several factors exist (e.g., gender, origin of study) that moderate the strength of the relationship between violence and psychopathy (Readers interested in an in-depth discussion of these findings should consult Douglas et al., 2006). The violence of psychopaths is not only distinguishable by its frequency. Research has shown that individuals with high levels of psychopathy are more likely to perpetrate instrumental violence when compared to individuals with lower levels of psychopathic traits. Instrumental violence is primarily defined by its planful nature and goal directedness. Traits linked to this type of behavior include grandiosity and arrogance, which are often found in psychopaths, especially those with high scores on the Interpersonal facet. Three studies highlight the relationship between psychopathic traits and violence. Williamson, Hare, and Wong (1987) evaluated 101 Canadian offenders, results indicating offenders with high PCL-R scores frequently engaged in instrumental aggression. In a highly influential study, Cornell et al. (1996) found that over half of items found on the PCL-R were higher in adult offenders with a history of instrumental violence. In evaluating homicide offenders, Woodworth and Porter (2002) discovered that psychopathic personality traits were related to instrumental homicides. Notably, in the overall group of murderers these characteristics were not found in the offenders whose homicides were classified as reactive. In sum, these studies shed important light on the relationship between psychopathy and planned aggression. A comprehensive study that has provided additional insight into the nature of psychopathy and violence is the MacArthur Risk Assessment Study (Monahan, Steadman, Silver, Appelbaum, et al., 2001). A major strength of the MacArthur Study was that it evaluated violence in a large sample (1,136) of patients recently discharged from civil psychiatric hospitals and followed these patients longitudinally. The MacArthur database has produced a large number of articles evaluating the relationship between psychopathy and violence. Of note, of all the variables collected, psychopathy was the most significant predictor of violence, even after controlling for mental health diagnosis, substance abuse, and demographic information (Skeem & Mulvey, 2001; Vitacco et al., 2005). The MacArthur Study goes a long way in validating the relationship between psychopathy and violence outside of criminal and forensic settings. As a final note of caution, we wish to discuss issues related to incremental validity and the misuse of psychopathy. Primarily, we wish to caution against the overgeneralization

The Clinical Assessment of Psychopathy

145

of findings. For instance, Hemphill and Hare (2004) discussed the usefulness of the PCL-R and Level of Service Inventory-Revised (LSI-R), a specialized instrument for risk assessment, in formulating risk opinions. Likewise, Douglas, Yeomans, and Boer (2005) compared various measures of risk and reported that several were related to violence. Any evaluator who relies too heavily on one measure risks committing errors.

Treating Psychopathy and Managing Risk: New Insights into an Age Old Question Many years ago any discussion on treating individuals with high levels of psychopathic traits would have been quite short. Psychopathy was assumed to be a largely untreatable condition and clinicians approached it with the mantra, “once a psychopath always a psychopath” (see Rice, 1997). This perspective of the treatment difficulty of individuals with psychopathic traits can be traced to Cleckley’s (1941) seminal book on psychopathy as he commented on the lack of response to treatment evidenced by psychopaths. Further complicating the treatment issue was evidence suggesting that not only did psychopaths fail to improve with treatment; the treated psychopaths were more likely to violently recidivate (Harris, Rice, & Cormier, 1991). Such results dampened the hopes for meaningful change in individuals with psychopathic traits. Lately, the idea that psychopaths are untreatable has been met with increased skepticism. We will explore recent evidence that begins to dispute the idea that psychopaths are untreatable. A paper authored by Skeem, Monahan, and Mulvey (2002) found individuals with higher levels of psychopathic traits actually benefited from treatment when they received “adequate doses” of intervention. In other words, if treatment providers can keep psychopaths in treatment and provide adequately intensive therapy, there is greater probability they may benefit. Of course, psychopaths often lack treatment motivation (Hobson, Shien, & Russell, 2000; Richards, Casey, & Lucente, 2003). Keeping psychopaths in treatment is a challenge in its own right. In an extensive review of the psychopathy treatment literature, Salekin (2002) reviewed 42 studies and concluded that the pessimism associated with treating psychopathy is unwarranted. He indicated that due to the lack of controlled treatment studies, comments on the untreatability of psychopathy were more speculative than fact. Instead, he found many therapeutic approaches (e.g., cognitive–behavioral, psychodynamic) have demonstrated success in decreasing antisocial behavior. Salekin (2002) concluded, “It seems clear from the current review that the widely held clinical belief that psychopathy is an untreatable disorder is unwarranted and that conclusions either way for this first generation of research are premature. At best, what we can glean scientifically suggests that psychopathy may be treatable” (p. 107). Echoing those sentiments, D’Silva, Duggan, and McCarthy (2004) reviewed evidence from 24 studies looking at treatment response and psychopathy. Like Salekin, they reached the conclusion that there have been insufficient studies to make firm conclusions regarding the (un)treatability of psychopathy. D’Silva et al. (2004) noted the dearth of psychopathy treatment studies and that those evaluating treatment have lacked adequate control groups and regimented protocols.

146

Michael J Vitacco and Craig S. Neumann

In considering treatment of psychopathy, several ideas have been put forth that warrant consideration. Wallace and Newman (2004) proposed that to be successful, treatment programs must consider the cognitive maladaptations prevalent in the psychopath. Improving deficits in response modulation may ultimately improve the behavior of the psychopath (Wallace, Vitale, & Newman, 1999). Recently, Wong and Hare (2004) developed guidelines, presented in a manual, for treating and managing the psychopathic offender. This theory-based program focuses on the development of a prosocial lifestyle and self-management techniques, rather than attempting to alter core aspects of the disorder. Taken together, we summarize components that should be utilized in effectively treating psychopathy: 1. Psychopathy should not be considered an immutable disorder in which treatment is wasted (Salekin, 2002). 2. In order to maximize success, ensure that adequate doses of treatment are administered (Skeem et al., 2002). 3. Treatment providers must be aware of research regarding the cognitive and emotional processes that often occur in individuals with psychopathic traits (Wallace & Newman, 2004). Special attention should be paid to cognitive distortions designed to minimize responsibility. 4. Improved self-management techniques that encourage a prosocial lifestyle should be a component of treatment (Wong & Hare, 2004).

Case Example Mr. Jones, a pseudonym, is a 34-year-old European-American male who was reared in an intact family. The youngest of three boys, Mr. Jones began engaging in criminal activity early in life. His first contact with the police occurred at 11 years of age for stealing from local stores. He also had police contact for fighting with other children. His behavior grew increasingly more violent. Notably, Mr. Jones was the only child in the family engaging in antisocial behavior. At the age of 14, Mr. Jones joined a street gang where he ran drugs and strong-armed for money and status. These behaviors resulted in two 1-year stints in juvenile correctional facilities. At those facilities, Mr. Jones did not accrue serious disciplinary infractions. Instead, records indicate that he was implicated in gambling, running contraband, and initiating fights. However, he always managed to evade formal charges. After turning 18, Mr. Jones moved higher within the gang and assumed a leadership role. His criminal activity escalated along with his increased role in the gang. As in the juvenile facility, Mr. Jones avoided the most serious charges although he was under investigation for three drive-by shootings and one murder. However, he was arrested for and convicted on two counts of battery and one count of strong-armed robbery. He was sentenced to five years in a medium-security prison. Once inside the prison, Mr. Jones immediately began “working” the guards and trying to assume a position of power within the prison. He succeeded by relying on his gang ties. When he was 2 years into his 5-year sentence he was transferred to a maximum-security facility after an unannounced room search uncovered drugs, a cell phone, and homemade weapons (i.e., “shanks”). He was immediately transferred to a maximum-security facility and placed in the Special Housing Unit (SHU) where his access to visitors was restricted. He was released three years later.

The Clinical Assessment of Psychopathy

147

Shortly after his release, Mr. Jones became enmeshed with the gang life and reentered the life style. Only six months after his release, he severely beat a woman who rebuffed his advances. However, relying on his gang ties he fled the jurisdiction and went into hiding, vowing not to serve any time. Two months later he was a passenger in a car pulled over by the police for a traffic stop. A routine identification check revealed that Mr. Jones had an outstanding warrant. He was arrested and extradited to his home jurisdiction to face charges on battery and habitual criminality. Overall, he faced a potential 15-year prison sentence. Once in the county jail, Mr. Jones’ behavior became increasingly bizarre. He was observed “twirling” in his cell and responding loudly to internal stimuli. When questioned by jail staff, Mr. Jones endorsed psychotic symptoms and was prescribed antipsychotic medications to alleviate his reports. During preliminary hearings, the judge ordered a competency-to-stand-trial evaluation and an insanity evaluation (to assess if he was responsible at the time of the crime). The psychologist opined that Mr. Jones was able to stand trial, but due to a psychotic disorder, was not responsible for severely beating the young lady. He was found not guilty by reason of mental disease or defect and admitted to a forensic mental health facility. Inside the mental health facility, Mr. Jones began bragging about how he manipulated the system; he discussed in detail his elaborate ruse and how he “played” the dumb doctors and attempted to teach genuine patients how to manipulate the system. He was overly solicitous with staff and attempted to gain favorable treatment. He frequently encouraged staff to break rules and smuggle him contraband. Moreover, he was highly litigious; he took fastidious notes and threatened to sue when staff denied his requests. When this strategy did not succeed, Mr. Jones began to cry when he felt mistreated; however, staff noted that the neither the tears nor the underlying emotion appeared genuine. Likewise, Mr. Jones vandalized the facility by breaking equipment in common areas used by all patients on the living unit. During his stay, Mr. Jones was administered the Psychopathy Checklist-Revised (PCL-R) as part of a risk assessment. Mr. Jones scored 36 out of 40 on the PCL-R. The examiner noted the absence of any real emotion and that he lacked the ability to empathize with any of his victims or peers. Beyond his antisociality, Mr. Jones was glib, superficial, and tried to impress the examiner with his knowledge of psychology. In many ways, Mr. Jones presents as the prototypical psychopath with glibness and superficiality, impulsive lifestyle, and the willingness to engage in coercive antisocial behavior.

Summary Psychopathy continues to gain momentum as a critical construct in understanding personality deviance and aggressive behavior in both forensic and nonforensic settings. This chapter provided an overview of psychopathy, both from a historical and modern perspective, and demonstrated that psychopathy is strongly associated with aggressive and violent behavior. Without a doubt, the study of psychopathy will continue to grow during the next several years and research will shed new insights on this important construct. References Alterman, A. I., Cacciola, J. S., & Rutherford, M. J. (1993). Reliability of the revised Psychopathy Checklist in substance abuse patients. Psychological Assessment, 5, 442–448. Andreson v. State, 209 Ala. 36 (1922).

148

Michael J Vitacco and Craig S. Neumann

Benning, S. D., Patrick, C. J., Hicks, B. M., Blonigen, D. M., & Krueger, R. F. (2003). Factor structure of the Psychopathic Personality Inventory: Validity and implications for clinical research. Psychological Assessment, 15, 340–350. Berardino, S. D., Meloy, J. R., Sherman, M., & Jacobs, D. (2005). Validation of the Psychopathic Personality Inventory on a female inmate sample. Behavioral Sciences and the Law, 23, 819–836. Blackburn, R. (1968). The scores of Eysenck’s criterion groups on some MMPI scales related to emotionality and extraversion. British Journal of Social and Clinical Psychology, 7, 3–12. Blackburn, R. (1975). An empirical classification of psychopathic personality. British Journal of Psychiatry, 127, 456–460. Blackburn, R. (1979). Cortical and autonomic arousal in primary and secondary psychopaths. Psychophysiology, 16, 143–150. Blackburn, R., Logan, C., Renwick, S., & Donnelly, J. P. (2005). Higher-order dimensions of personality disorder: Hierarchical structure and relationships with the five-factor model, the interpersonal circle, and psychopathy. Journal of Personality Disorders, 19, 597–623. Bolt, D. M., Hare, R. D., Vitale, J. E., & Newman, J. P. (2004). A multigroup item response theory analysis of the Psychopathy Checklist-Revised. Psychological Assessment, 16, 155–168. Cale, E. M., & Lilienfeld, S. O. (2002). Sex differences in psychopathy and antisocial personality disorder. A review and integration. Clinical Psychology Review, 22, 1179–1207. Chapman, A. I., Gremore, T. M., & Farmer, R. F. (2003). Psychometric analysis of the Psychopathic Personality Inventory with female inmates. Journal of Personality Assessment,80, 164–172. Cooke, D. J., Kosson, D. J., & Michie, C. (2001). Psychopathy and ethnicity: Structural, item, and test generalizability of the Psychopathy Checklist-Revised (PCL-R) in Caucasian and African American participants. Psychological Assessment, 13, 531–543. Cooke, D. J., & Michie, C. (2001). Refining the construct of psychopathy: Towards a hierarchical model. Psychological Assessment, 13(2), 171–188. Cooke, D. J., Michie, C., Hart, S. D., & Clark, D. A. (2004). Reconstructing psychopathy: Clarifying the significance of antisocial and deviant behavior in the diagnosis of psychopathic personality disorder. Journal of Personality Disorders, 18, 337–357. Cooke, D. J., Michie, C., Hart, S. D., & Hare, R. D. (1999). Evaluating the screening version of the Hare Psychopathy checklist-Revised (PCL:SV): An item response theory analysis. Psychological Assessment, 11, 3–13. Cleckley, H. (1941). The Mask of Sanity. St. Louis, MO: Mosby Books. Cleckley, H. (1976). The Mask of Sanity. St. Louis, MO: Mosby Books. Cornell, D. G., Warren, J., Hawk, G., Stafford, E., Oram, G., & Pine, D. (1996). Psychopathy in instrumental and reactive violent offenders. Journal of Clinical and Consulting Psychology, 64, 783–790. Crocker, A. G., Mueser, K. T., Drake, R., McHugo, G. J., & Alterman, A. I. (2005). Antisocial personality disorder, psychopathy, and violence in persons with dual disorders: A longitudinal analysis. Criminal Justice and Behavior, 32, 452–476. Cronbach, L. J., & Meehl, P. E. (1955). Construct validity in psychological tests. Psychological Bulletin, 52, 281–302. D’Silva, K., Duggan, C., & McCarthy, L. (2004). Does treatment really make psychopaths worse? A review of the evidence. Journal of Personality Disorders, 18, 163–177. Dolan, M., & Doyle, M. (2000). Violence risk prediction: Clinical and actuarial measures and the role of the Psychopathy Checklist. British Journal of Psychiatry, 177, 303–311.

The Clinical Assessment of Psychopathy

149

Douglas, K., Vincent, G. M., & Edens, J. F. (2006). Risk for criminal recidivism: The role of psychopathy. In C. Patrick (Ed. ), Handbook of Psychopathy (pp. 533–554). New York: The Guilford Press. Douglas, K. S., Yeomans, M., & Boer, D. P. (2005). Comparative validity analysis of multiple measures of violence risk in a sample of criminal offenders. Criminal Justice and Behavior, 32, 479–510. Edens, J. (2006). Unresolved controversies concerning psychopathy: Implications for clinical and forensic decision making. Professional Psychology, Research, and Practice, 37, 59–65. Edens, J. F., Guy, L. S., & Fernandez, K. (2003). Psychopathic traits predict attitudes toward a juvenile capital murderer. Behavioral Sciences and the Law, 21, 807–828. Edens, J. F., Marcus, D. K., Lilienfeld, S. O., & Poythress, N. (2006). Psychopathic, not psychopath: Taxometric evidence for the dimensional structure of psychopathy. Journal of Abnormal Psychology, 115, 131–144. Edens, J. F., Petrila, J., & Buffington-Vollum, J. K. (2001). Psychopathy and the death penalty: Can the Psychopathy Checklist-Revised identify offenders who represent a continuing threat to society. Journal of Psychiatry and the Law, 29, 433–481. Edens, J. F., Poythress, N., & Watkins, M. M. (2001). Further validation of the Psychopathic Personality Inventory among offenders: Personality and behavioral correlates. Journal of Personality Disorders, 15, 403–415. Erickson, S. E., Vitacco, M. J., & Rogers, R. (2006). The evolution of psychopathy as a psycholegal construct [manuscript under review]. Eysenck H. J. (1964) Crime and Personality. London: Methuen. Forth, A. E., Brown, S. L., Hart, S. D., & Hare, R. D. (1996). The assessment of psychopathy in male and female noncriminals: Reliability and validity. Personality and Individual Differences, 20, 531–543. Frye v. United States, 293F. 1013 (D. C. Cir. 1923). Fulero, S. (1995). Review of the Hare Psychopathy Checklist-Revised, in J. C. Conoley & J. C. Impara (Eds. ), Twelfth Mental Measurements Yearbook, Lincoln, NE, Buros, Institute, pp. 453–454. Gendreau, P., Goggin, C., & Smith, P. (2002). Is the PCL-R really the unparalled measure of offender risk? A lesson in knowledge accumulation. Criminal Justice and Behavior, 29, 397–426. Hare, R. D. (1968). Psychopathy, autonomic conditioning, and the orienting response. Journal of Abnormal Psychology, 73, 1–24. Hare, R. D. (1970). Psychopathy: Theory and Research. New York: John Wiley and Sons. Hare, R. D. (1980). A research scale for the assessment of psychopathy in criminal populations. Personality and Individual Differences, 1, 111–119. Hare, R. D. (1991). Manual for the Psychopathy Checklist-Revised. Toronto, ON: MultiHealth Systems. Hare, R. D. (1996). Psychopathy: A clinical construct whose time has come. Criminal Justice and Behavior, 23, 25–54. Hare, R. D. (2003). Manual for the Psychopathy Checklist-Revised (2nd ed. ). Toronto, ON: Multi-Health Systems. Hare, R. D., & Neumann, C. S. (2006). The PCL-R assessment of psychopathy: Development, structural properties, and new directions. In C. Patrick (Ed. ), Handbook of Psychopathy (pp. 58–90). New York: The Guilford Press. Harpur, T. J., Hare, R. D., & Hakistan, A. R. (1989). Two-factor conceptualization of psychopathy: Construct validity and assessment implications. Psychological Assessment, 1, 6–17. Harris, G., Rice, M., & Cormier, C. (1991). Psychopathy and violent recidivism. Law and Human Behavior, 15, 625–637.

150

Michael J Vitacco and Craig S. Neumann

Harris v. State, 84 P. 3d 731 (2004). Hart, S., Cox, D., & Hare, R. D. (1995). Manual for the Psychopathy Checklist: Screening Version (PCL:SV). Toronto: Multihealth Systems. Hart, S., Hare, R., & Forth, A. (1994). Psychopathy as a risk marker for violence: Development and validation of a screening version of the Revised Psychopathy Checklist. In J. Monahan & H. Steadman (Eds. ), Violence and mental disorder (pp. 81–98). Chicago, IL: University of Chicago Press. Hemphill, J. E., & Hare, R. D. (2004). Some misconceptions about the PCL-R and risk assessment: A reply to Gendreau, Goggin, and Smith. Criminal Justice and Behavior, 31, 203–243. Hemphill, J. F., Hare, R. D., & Wong, S. (1998). Psychopathy and recidivism: A review. Legal and Criminological Psychology, 3, 139–170. Hill, C. & Neumann, C. S. & Rogers, R. (2004). Confirmatory Factor Analysis of the Psychopathy Checklist: Screening Version (PCL:SV) in Offenders with Axis I Disorders. Psychological Assessment, 16, 90–95. Hobson, J., Shien, J., & Russell, R. (2000). How do psychopaths behave in a prison therapeutic community. Psychology, Crime, and Law, 6, 139–154. Jackson, R. L., Neumann, C. S., Vitacco, M. J. (2007). Impulsivity, anger, and psychopathy: The moderating effect of ethnicity. Journal of Personality Disorders, 21, 289–304. Jackson, R., Rogers, R., Neumann, C. S., & Lambert, P. (2002). Psychopathy in Women: An investigation of its underlying dimensions. Criminal Justice and Behavior, 29, 692–704. Kosson, D. S., Smith, S. S., & Newman, J. P. (1990). Evaluating the construct validity of psychopathy in black and white male inmates: Three preliminary studies. Journal of Abnormal Psychology, 99, 250–259. Kruh, I. P., Whittemore, K., Arnaut, G., Manley, J., Gage, B., & Gagliardi, G. J. (2005). The concurrent validity of the Psychopathic Personality Inventory and its relative association with past violence in a sample of insanity acquittees. International Journal of Forensic Mental Health, 4, 135–145. Leistico, A.-M. R., Salekin, R. T., De Coster, J., & Rogers R. (in press). A large-scale meta-analysis relating the Hare Measures of Psychopathy to antisocial conduct. Law and Human Behavior. Lilienfeld, S. O., & Andrews, B. P. (1996). Development and preliminary validation of a selfreport measure of psychopathic traits in noncriminal populations. Journal of Personality Assessment, 66, 488–524. Lilienfeld, S. O., & Fowler, K. H. (2006). The self-report assessment of psychopathy: Pitfalls, problems, and promises. In C. Patrick (Ed. ), Handbook of psychopathy (pp. 107–132). New York: Guilford Press. Lilienfeld, S. O., & Windows, M. (2004) Manual for the Psychopathic Personality InventoryRevised. Florida, Psychological Assessment Resources. Millon, T., Simonsen, E., Birket-Smith, M., & Davis, R. D. (1998). Psychopathy: Antisocial, Criminal, and Violent Behavior. New York: The Guilford Press. Monahan, J., Steadman, H. J., Silver, E., Appelbaum, P. S., Robbins, P. C., Mulvey, E. P., Roth, L. H. et al (2001). Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence. New York: Oxford Press. Morey, L. (1991) Personality Assessment Inventory: Manual. Psychological Assessment Resources. Neumann, C. S., Kosson, D., & Salekin, R. T., (2007). Exploratory and confirmatory factor analysis of the psychopathy construct: Methodological and conceptual issues. In H. Herve & J. Yuille (Eds. ), Psychopathy: Theory, Research, and Social Implications. New York: Lawrence Erlbaum Associates, 79–104.

The Clinical Assessment of Psychopathy

151

Neumann, C. S., Hare, R. D., & Newman, J. P. (2007). The super factor structure of the Psychopathy Checklist-Revised. Journal of Personality Disorders, 21, 102–117. Neumann, C. S., Vitacco, M. J., Hare, R. D., & Wupperman, P. (2005). Reconstruing the reconstruction of psychopathy. A comment on Cooke, Michie, Hart, and Clarke. Journal of Personality Disorders, 19, 624–640. Nicholls, T., Ogloff, J. R., Brink, J., & Spiedel. A. (2005). Psychopathy in women: A review of its clinical usefulness for assessing risk for aggression and criminality. Behavioral Sciences and the Law, 23, 779–802. Patrick, C. J. (2006). Back to the future: Cleckley as a guide to the next generation of psychopathy research. In C. J. Patrick (Ed. ), Handbook of Psychopathy (pp. 605–617). New York: Guilford Press. Pinel, P. (1801). Traite medico-philosophique sur l’alientation mentale. Paris: Caille et Ravier. Poythress, N. G., Edens, J. F., & Lilienfeld, S. O. (1998). Criterion-related validity of the Psychopathic Personality Inventory in a prison sample. Psychological Assessment, 10, 426–430. Pritchard, J. C. (1835). A treatise on Insanity. New York: Hafner. Rice, M. (1997). Violent offender research and implications for the criminal justice system. American Psychologist, 52, 414–423. Richards, H. J., Casey, J. O., & Lucente, S. W. (2003). Psychopathy and treatment response in incarcerated female substance abusers. Criminal Justice and Behavior, 30, 251–276. Roeling v. State, 880 So. 2d 1234 (2004). Rogers, R. (2001). Handbook of Diagnostic and Structured Interviewing. New York: The Guilford Press. Rogers, R., Vitacco, M. J., Jackson, R., Martin, M., Collins, M., & Sewell, K. (2002). Faking psychopathy: An examination of response styles with antisocial youth. Journal of Personality Assessment, 78, 87–103. Rush, B. (1812). Medical Inquiries and Observations upon Diseases of the Mind. Philadelphia, PA: Kimber & Richardson. Rutherford, M. J., Alterman, A. I., & Cacciola, J. S., (1996). Gender differences in diagnosing antisocial personality disorder in methadone patients. American Journal of Psychiatry, 152, 1309–1316. Rutherford, M., Cacciola, J. S., Alterman, A. I., McKay, J. R., & Cook, T. G. (1999). The twoyear test-retest reliability of the Psychopathy Checklist-Revised in methadone patients. Assessment, 6, 285–291. Salekin, R. T. (2002). Psychopathy and therapeutic pessimism: A review. Clinical Psychology Review, 22, 79–112. Salekin, R. T., Rogers, R., & Sewell, K. W. (1996). A review and meta-analysis of the Psychopathy Checklist and Psychopathy Checklist-Revised: Predictive validity of dangerousness. Clinical Psychology: Science and Practice, 3, 203–215. Salekin, R.T., Rogers, R., & Sewell, K.W. (1997). Construct validity of psychopathy in a female sample: A multitrait-multimethod evaluation, Journal of Abnormal Psychology, 106, 576–585. Salekin, R. T., Trobst, K. K., & Krioukova, M. (2001). Construct validity of psychopathy in a community sample: A nomological net approach. Journal of Personality Disorders, 15, 425–441. Sandoval, A. R., Hancock, D., Poythress, N., Edens, J. F.,& Lilienfeld, S. O. (2000). Construct validity of the Psychopathic Personality Inventory in a correctional sample. Journal of Personality Assessment, 74(2), 262–282.

152

Michael J Vitacco and Craig S. Neumann

Schroeder, M. L., Schroeder, K. G., & Hare, R. D. (1983). Generalizability of a checklist for the assessment of psychopathy. Journal of Consulting and Clinical Psychology, 51, 511–516. Skeem, J. L., Edens, J. F., Sanford, G. M., & Colwell, L. H. (2003). Are there ethnic differences in levels of psychopathy? A meta-analysis. Law and Human Behavior, 28, 505–527. Skeem, J. L., Monahan, J., & Mulvey, E. (2002). Psychopathy, treatment involvement, and subsequent violence among civil psychiatric patients. Law and Human Behavior, 26(6), 577–603. Skeem, J. L., & Mulvey, E. P. (2001). Psychopathy and community violence among civil psychiatric patients: Results from the MacArthur Violence Risk Assessment study. Journal of Consulting and Clinical Psychology, 69, 358–374. Skeem, J. L., Mulvey, E. P., & Grisso, T. (2003). Applicability of traditional models and revised models of psychopathy to the Psychopathy Checklist: Screening Version. Psychological Assessment, 15, 41–55. Verona, E., & Vitale, J. (2006). Psychopathy in women: Assessment, prevalence, and etiology. In C. Patrick (Ed. ), Handbook of Psychopathy (pp. 415–436). New York: Guilford Press. Viding, E., Blair, R., Moffitt, T., Plomin, R. (2005). Evidence for substantial genetic risk for psychopathy in 7-year-olds. Journal of Child Psychology & Psychiatry, 46, 592–597. Vitacco, M. J. (2003). Construct validity of psychopathy in mentally disordered offenders: A multi-trait multi-method approach. Dissertation Abstracts International, 64, 2945. Vitacco, M. J., Neumann, C. S., & Jackson, R. L. (2005). Testing a four-factor model of psychopathy and its association with ethnicity, gender, intelligence, and violence. Journal of Consulting and Clinical Psychology, 73, 466–476. Vitacco, M. J., & Rogers, R. (in press). Psychopathy and response styles in sex offenders. In F. Saleh, A. Grudzinskas, & J. Bradford (Eds. ), Sex offenders: Identification, Risk Assessment, Treatment, and Legal Issues. New York: Oxford University Press. Vitacco, M. J., Rogers, R., Neumann, C. S., Harrison, K., & Vincent, G. (2005). A comparison of factor models on the PCL-R with mentally disordered offenders: The development of a four-factor model. Criminal Justice and Behavior, 32, 526–545. Vitale, J. E., & Newman, J. P. (2001). Response perseveration in psychopathic women. Journal of Abnormal psychology, 110, 644–647. Vitale, J. E., Smith, S. S., Brinkely, C. A., & Newman, J. P. (2002). The reliability and validity of the Psychopathy Checklist-Revised in a sample of female offenders. Criminal Justice and Behavior, 29, 202–231. Wallace, J. F., & Newman, J. P. (2004). A theory-based treatment model for psychopathy. Cognitive and Behavioral Practice, 11, 178–189. Wallace, J. F., Vitale, J. E., & Newman, J. P. (1999) Response modulation deficits: Implications for the diagnosis and treatment of psychopathy. Journal of Cognitive Psychotherapy, 13, 55–70. Walsh, Z., Swogger, M. T., & Kosson, D. S. (2004). Psychopathy, IQ, violence in European and African American county jail inmates. Journal of Consulting and Clinical Psychology, 72, 1165–1169. Widiger, TA., Cadoret, R., Hare, R. D., Robins, L., Rutherford, M., Zanarini, M. et al. (1996). DSM-IV antisocial personality disorder field trial. Journal of Abnormal Psychology, 105, 3–16. Williamson, S., Hare, R. D., & Wong, S. (1987). Violence: Criminal psychopaths and their victims. Canadian Journal of Behavior, 19, 455–462. Woodworth, M., & Porter, S. (2002). In cold blood: Characteristics of criminal homicides as a function of psychopathy. Journal of Abnormal Psychology, 111, 436–445. Zagon, I. K., & Jackson, H. J. (1994). Construct validity of a psychopathy measure. Personality and Individual Differences, 17, 125–135.

7 Violence Risk Assessment Rebecca L. Jackson and Michelle R. Guyton

Violence Risk Assessment The criminal justice system has long recognized the value in being able to estimate the likelihood that someone may be violent or engage in criminal behavior. Prosecutors, judges, parole boards, and other legal bodies have a vested interest in determining whether offenders are likely to cause harm in the community, and they look to mental health professionals to aid in these determinations. Several decades ago, mental health professionals were reluctant evaluators of risk, relying on little more than clinical intuition about whether a patient might be dangerous. Early studies showed that these idiosyncratic judgments of risk were not indicative of actual risk and spurred some to suggest that flipping a coin would result in the same accuracy in identifying individuals at risk for violence (Ennis & Litwack, 1974). However, the technology of predicting violence has surged in the last twenty years, and several measures exist for assessing both general and specific types of violence. Most assessment devices now measure certain static, historical indicators that are empirically linked to violence and recidivism. Other tools also measure more dynamic, or changeable, variables that are also linked to violence. Yet the science of violence prediction remains far from perfect. Debates continue regarding how risk decisions should be made, the role of clinical judgment in risk decisions, and the use of group actuarial data applied to individual assessments of risk. As the use and study of risk assessment methods has become more prevalent, Heilbrun (1997) suggests that psychologists must first understand the question being asked. First, risk assessment may be used for risk prediction purposes, to answer a question such as “What is the likelihood that Mr. X will commit a violent crime if he is released on parole?” However, risk assessment may also be understood as risk management, where the question might be “What are Mr. X’s risk factors for violence, and how can his treatment team reduce these?” With risk prediction, there is an emphasis on empirically identifying the variables, often of a static nature, that are the most highly linked to recidivism. Risk management is more likely to focus on dynamic, or changeable, variables that can be assessed repeatedly during a follow-up period. This strategy allows mental health professionals, among others, to intervene and reduce 153

154

Rebecca L. Jackson and Michelle R. Guyton

risk. It is vital that mental health professionals identify the risk question posed to them, because questions of prediction and management entail different assessment and communication strategies. The purpose of this chapter is to review the evolution of risk assessment and the state-of-the-art measures currently available. Only the most validated measures are presented here, whereas newer tools that have yet to be thoroughly studied are omitted. This chapter focuses mainly on risk judgments of criminal recidivism and violent behavior, with a lesser emphasis on risk for sexual recidivism. Although important, judging risk for work-place violence, domestic violence, and with child and adolescent populations are beyond the scope of this chapter. In addition, we will review the nature of actuarial and clinical judgments and what current research suggests regarding the utility of these methods. We will briefly consider how clinicians use risk assessment tools and various strategies for communicating risk level. Finally, we will end with a vignette demonstrating the complexity of determining violence risk. History of Violence Prediction Psychology and psychiatry’s role in determinations of dangerousness is rooted in American constitutional and case law (see e.g., Barefoot v. Estelle, 1983; Baxstrom v. Herold, 1966; Kansas v. Hendricks, 1997; Schall v. Martin, 1984). The U.S. Supreme Court’s 1966 decision in Baxstrom v. Herold provided a rare opportunity to empirically investigate mental health professionals’ ability to accurately predict future violence. Briefly, Baxstrom, a prisoner in New York’s correctional system, was diagnosed as mentally disordered and transferred to a hospital for the criminally insane shortly before the expiration of his prison term. Despite New York’s commitment law requiring a judicial finding of dangerousness, Baxstrom was detained at the hospital past the expiration of his original prison sentence without a hearing to determine his present dangerousness. Consequently, Baxstrom argued his right to equal protection had been violated. The Court agreed, finding that Baxstrom’s rights had been violated by committing him without benefit of current finding of dangerousness as was required under New York law for all other civil commitments. As a result of this case, 967 offenders being held in hospitals without judicial determinations of dangerousness were released to lower-security civil hospitals throughout New York State. This decision presented the unique opportunity to assess the accuracy of clinicians’ predictions of dangerousness as all offenders had been deemed too dangerous to be released from maximum security hospitals. Raising doubts about clinicians’ expertise, these offenders had low rates of reoffending. Overall, only about 20% of the patients were subsequently violent, according to hospital and police reports. In stark contrast to predictions of dangerousness, many patients did surprisingly well. For example, 176 patients (18%) were discharged to the community within 1 year of transfer, and only 7 (less than 1%) were subsequently returned to secure hospitals. Over a 4.5-year period, more than half of the patients were discharged to the community and fewer than 3% returned to secure hospitals (Monahan & Steadman, 2001; Steadman & Cocozza, 1974). Proving the Baxstrom cohort was not unique, Thornberry and Jacoby (1979) published a parallel study of 586 patients released from Pennsylvania’s Farview Institution

Violence Risk Assessment

155

(Dixon v. Pennsylvania, 1971). The 3-year general recidivism rate was 23.7%. Only 14% of the total sample were rearrested or returned for a violent offense during the 4-year follow-up period. Both the Baxstrom and Dixon studies served to highlight two very important findings: (a) The base rate of violence among presumably “dangerous” mentally disordered offenders was relatively low, and (b) clinicians greatly overestimated the likelihood of future violence. Early research (Goldberg, 1968; Oskamp, 1965; Quinsey & Ambtman, 1979; Steadman & Coccoza, 1974; Thornberry & Jacoby, 1979) on predictive accuracy suggested that clinicians had no special abilities to predict violent behavior. In particular, these studies suggested that training, experience, and confidence of clinicians had very little effect on their accuracy. For example, Quinsey and Ambtman (1979) demonstrated that experienced psychiatrists’ predictions of violence were no better than laypersons’ (i.e., school teachers’) judgments on the same patients. Goldberg’s (1968) review of the prediction literature cited several studies echoing this result: the amount of professional training and experience does not relate to predictive accuracy. In addition, he noted that the addition of information was not related to the accuracy of participants’ resulting inferences. Although not specific to predictions of dangerousness, Oskamp (1965) reported that the confidence of decision makers increases with the amount of information available; however, the accuracy of those predictions does not improve. The combined influence of the above findings led many mental health professionals to conclude that accurate predictions of dangerousness simply cannot be accomplished. The American Psychiatric Association (1974) declared in its task force report, Clinical Aspects of the Violent Individual, “Psychiatric expertise in the prediction of dangerousness is not established and clinicians should avoid conclusory judgments in this regard” (p. 30). Monahan’s (1981) The Clinical Prediction of Violent Behavior discredited the tradition of clinical predictions of dangerousness. This monograph articulated the many inaccuracies of clinical predictions of violent behavior and concluded that “psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior” (p. 47). This work had such a profound influence on attitudes towards predictions of violence that Otto (2001) ironically referred to it as “too good a book” on the fallibility of clinical judgment, noting that it essentially eliminated research interest in the topic for many years. Pessimism about dangerousness predictions deterred researchers from the topic. Practically speaking, prediction research was nonexistent in the 1980s. Paradoxically, this same period saw American courts deciding on many cases that directly expanded the clinician’s role in assessing dangerous behavior. For example, the Supreme Court’s decision in Barefoot v. Estelle (1983) served to make clinical predictions of dangerousness virtually unavoidable. In Barefoot, the petitioner objected to the use of psychiatrists’ testimony regarding his risk for future dangerousness based on the assertion that psychiatrists were not competent to predict future violence. In conjunction with this case, the American Psychiatric Association (APA) submitted an amicus brief1 detailing its view of expert psychological testimony regarding dangerousness. In the brief, the APA cited the available research, including Monahan’s (1981) analysis, and concluded that psychiatrists have no expertise in

156

Rebecca L. Jackson and Michelle R. Guyton

predicting future violence, asserting that laypersons could do as well as “experts.” The brief informed the court that psychiatrists were wrong more often than they were right and had a tendency to overpredict violence (Monahan, 1981; Steadman & Coccoza, 1974; Thornberry & Jacoby, 1979). The court’s response to the brief and its resultant opinion were remarkable. Essentially, the court ignored the APA’s brief, stating that “we are [not] convinced that the view of the APA should be converted into a constitutional rule barring an entire category of expert testimony” (Barefoot v. Estelle, 1983, p. 3387) and that it was “not persuaded that such testimony is almost entirely unreliable” (p. 3398). Despite the “experts” themselves providing evidence of their inability to predict accurately, the court found that “neither petitioner nor the Association suggests that psychiatrists are always wrong with respect to future dangerousness, only most of the time” (p. 3398). Bolstering their argument, the court also relied on an earlier decision (Addington v. Texas, 1979) that reinforced the mental health professional’s role in legal proceedings. Addington, in referring to commitment hearings, stated, “whether the individual is mentally ill and dangerous to either himself or others … turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists” (Addington v. Texas, 1979, p. 1811; emphasis added). Ironically, the prediction of dangerous and violent behavior was becoming an integral and possibly unavoidable part of psychologists’ and psychiatrists’ duties, continuing to leave mental health professionals ill-suited to perform the task demanded of them (Monahan et al., 2001). The legal system has continued to evidence greater confidence than many mental health professionals in the accuracy of clinical predictions. The American Bar Association’s (1998) position on psychologists’ role in risk assessments is highlighted in its National Benchbook on Psychiatric and Psychological Evidence and Testimony which stated that “it [clinical evaluation] is the best information available. The alternative is to deprive fact finders, judges, and jurors of the guidance and understanding that psychiatrists and psychologists can provide” (p. 49). Further, Monahan et al. (2001) asserted that the general expectation is that mental health professionals can distinguish with a reasonable degree of accuracy between dangerous and nondangerous persons with mental disorders (see also Monahan, 2000; Mossman, 2000). Clearly, mental health professionals have been drafted into the field of violence risk assessment, some more readily than others. The professionals who either choose or are mandated to perform risk assessments are expected to have the requisite knowledge and expertise (Monahan et al., 2001), despite their lack of formal training in risk assessment methods. As a result of this expectation, the question has shifted from: (a) “Should mental health professionals be making violence predictions” to (b) “How do mental health professionals improve their predictions of violence?” (see Grisso & Appelbaum, 1992). When mental health professionals are involved with clients who have the potential for violence, clinicians may be concerned about the need to report such information given Tarasoff-directed legislation in most states.2 In most instances of violence risk assessment as discussed in this chapter, however, the Tarasoff ruling does not apply. This legal standard requires that clinicians have a duty to report information to legal authorities and potential victims when a client is at imminent risk of violence. Most typically, violence risk assessments are evaluations of long-term violence risk potential.

Violence Risk Assessment

157

Rarely in this context are individuals evaluated for the probability of imminent harm. In addition, legally-mandated evaluations of violence risk typically include little to no expectation of confidentiality. Finally, many violence risk assessments are requested by and submitted to legal bodies such as courts, state hospitals, and parole boards. Should an issue of imminent harm arise, these agencies have the ability to proceed to reduce the likelihood of harm. Interested readers are referred to Borum and Reddy (2001) for an excellent example of assessing violence risk for imminent harm in a clinical context. Clinical Constructs of Dangerousness and Risk Assessment Lessard v. Schmidt (1976) established the threshold for commitment when articulating that an individual must be dangerous to himself or others in order to be eligible for commitment. The “dangerousness” standard for civil commitment presented many difficulties for forensic psychologists. The apparent purpose of this standard is to ensure that only the most dangerous individuals are deprived of their civil liberties and freedom. Steadman (2000) argued that this requirement increased the difficulty of the psychologist’s task rather than clarifying it because the term “dangerous” does not have a clinically meaningful definition. Instead, he argued, the clinical parallel to the legal concept of dangerousness is “risk of future harm.” The difference between “dangerous” and “risk of future harm” can be construed as a categorical versus dimensional judgment. Determinations of dangerousness imply a binary (yes or no) outcome. In contrast, risk is inherently a probabilistic judgment that takes into considerations notions such as individual differences, contextual elements, severity of harm, imminence of harm, and so forth. Employing the term “risk assessment” reflects the belief that the psychologist’s task is one of judging probabilities, not arriving at a dichotomous decision. From one perspective, the distinction between binary predictions of dangerousness and probabilities of future violence is useful. Construing violence as a future probability allows us to focus on those variables that increase or decrease risk. It allows us to be flexible in our assessments and tailor treatment to those variables likely to decrease risk. From another perspective, this distinction is likely to be spurious in certain contexts. Regardless of the probabilistic nature of judgments, the resulting outcome remains categorical. In the case of civil commitment, most decisions are comprised of yes/no decisions about involuntary hospitalization. The fact remains that legal decisions (i.e., commit or not to commit) and psycholegal constructs (i.e., gradations of risk) appear at odds. Hart (1998; see also Steadman, 2000) argued for the replacement of “dangerousness” with “risk assessment” by pointing out that dangerousness implies a stable attribute about an individual. He contended that research does not support a single, global trait that operates across all individuals and situations to produce violent behavior. Instead, he defined risk assessment as “the process of evaluating individuals to (a) characterize the likelihood they will commit acts of violence and (b) develop interventions to manage or reduce that likelihood” (p. 122). Further, he argues against the term “predicting violence” on similar grounds. Predicting violence implies that the clinician is a detached observer who makes predictions and subsequently takes no action based on the prediction. In stark contrast, the express purpose for making those predictions, according to Hart, is to facilitate management of the risk. This, some would argue, is what clinicians do best anyway (Kroner, 2005).

158

Rebecca L. Jackson and Michelle R. Guyton

In this manner, clinicians are active participants in the evaluation process and therefore, the term “risk assessment” most accurately captures current practice. The term risk assessment will be employed throughout this review because it is the most comprehensive term used to describe psychologists’ activities. As noted above, the first prong of this term relates to characterizing an individual’s likelihood of future violence. In other words, the term risk assessment subsumes both predictions of dangerousness and predictions of violence. Likewise, a clinician’s responsibility may involve estimates of risk that change over time, situations, and legal contexts. The use of the term risk assessment also addresses important situational variables. Finally, Douglas and Skeem (2005) argue that the field should shift from a focus on long-term dangerousness predictions to including examination of dynamic risk variables. Whether to focus on long-term risk or more imminent risk is largely determined by the referral question. Instruments used to assess both long-term as well as shorter-term risk levels are presented. Reviving Risk Assessment Research Grisso and Appelbaum (1992) advocated a paradigm shift in the way psychologists viewed the risk assessment process. Instead of arguing the merits of psychologists’ involvement, they encouraged programmatic research aimed at increasing the validity of the assessments. At least two potential models have been proposed to improve risk assessments. The first model is offered by those individuals advocating the use of actuarial scales to predict violence (Quinsey, Harris, Rice, & Cormier, 2006). This model articulates the position that clinicians are inaccurate predictors of violence, and therefore, should be eliminated from the equation. The second model involves efforts to increase clinicians’ accuracy in the risk assessment process via standardization of their clinical evaluation (e.g., structured professional judgment). This model typically employs the use of actuarial methods by trained clinicians who can then assimilate the various data into a judgment of risk. In addition, Monahan and colleagues suggested greater specificity is needed in defining violence (Monahan, 1981; Mulvey, Shaw, & Lidz, 1994). Researchers, they argued, should specifically classify what behaviors are considered violent rather than assuming everyone agrees on the definition of violent behaviors. Also, the time frame for violence risk should be clearly identified because different elements of risk are involved in immediate versus long-term risk (Douglas & Skeem, 2005). Methodological advances have also been partially responsible for the revitalization of risk assessment research. Several researchers (Monahan, 1981; Mossman, 1994; Rice & Harris, 1995; Douglas, Ogloff, Nicholls, & Grant, 1999) have noted problems with the traditional utility estimates of prediction accuracy, such as positive predictive power, negative predictive power, sensitivity, and specificity. These indices are influenced by base rates of behavior and clinicians’ preferred errors, i.e., whether they are more or less conservative in predicting violence. Douglas et al. (1999) noted that traditional 2 X 2 contingency tables perform maximally at base rates of the criterion at 50%. In most research of violent recidivism, base rates are often far less than 50%. When the base rates deviate from 50%, this introduces greater likelihood for error in making judgments. To counteract this sensitivity to base rates, Mossman (1994; see

Violence Risk Assessment

159

also Douglas et al., 1999; Rice & Harris, 1995; Swets, 1996) advocated for the adoption of Receiver Operating Characteristic (ROC) analysis for risk prediction research, noting that it is less influenced by base rates than traditional indices. Since Mossman’s (1994) review and reanalysis of risk prediction research using ROC analysis, it has become a frequently used index of accuracy among violence researchers. The Receiver (or Relative; Quinsey et al., 2006) Operating Characteristic (ROC) represents a ratio of false positives to accurate identifications by plotting false alarms on the x axis and hit rate on the y axis. ROCs produce a statistical index called the Area Under the Curve (AUC). AUCs can range from 0 (perfectly wrong predictions) to 1.0 (perfect accuracy). AUCs of .5 indicate accuracy at chance levels. Significance testing is often employed to determine if the difference between the obtained AUC and chance (AUC = .50) is significantly different. The AUC value can be defined as the probability that a randomly chosen, actually violent person, will score higher on the measure than a randomly chosen nonviolent person (Douglas et al., 1999; Mossman, 1994; Rice & Harris, 1995). In terms of unaided clinical decision making, the value of AUC equals the likelihood that a clinician would rate a randomly selected violent person as more likely to be violent than a randomly selected nonviolent person. Douglas et al. (1999) reported that AUCs of .70 and above are considered large. It is noted that even when an AUC is considered large, it is far from perfect. Importantly, both utility estimates and ROC analyses are limited in their applicability to individual decisions. As outlined previously, utility estimates are vulnerable to fluctuations in base rate. ROC analysis partially controls for this phenomenon and instead yields an “overall” AUC. Individual cut points are absent, eliminating the ability to examine a clinician’s or a test’s performance at different cut scores. In other words, Positive Predictive Power (PPP) and Negative Predictive Power (NPP) are not discerned from ROC analysis. In making decisions regarding future violence, and reporting the associated error rates of these predictions, PPP and NPP are perhaps of paramount importance. Further, estimates of risk yielded from ROC analyses refer to groups of individuals, not individuals per se. For example, when interpreting a score on an actuarial instrument that equates with a, for example, 61% recidivism rate, the appropriate interpretation is “of individuals who scored similarly on this instrument, 61% were known to commit another violent act.” Note that this interpretation is not equivalent to testifying that the individual you examined has a 61% chance of violent recidivism. Indeed, estimates derived from ROC analysis remain limited in their application to individual cases. The following sections review the voluminous research in actuarial and clinical predictions of violence. Actuarial scales are discussed first, followed by consideration of structured professional judgment. In most cases, ROC analyses were utilized and AUCs reported. When appropriate, this review also reports traditional analyses of predictive accuracy such as correlations and 2 X 2 contingency tables. Actuarial Instruments As an early and vocal advocate of statistical methods of predictions, Meehl (1954/1996) argued for the superiority of actuarial over clinical predictions of psychological and behavioral phenomena. In a recent review, Garb and Boyle (2003) demonstrate that unstructured clinical judgment is notably prone to error across all contexts of psychologists’ decision-

160

Rebecca L. Jackson and Michelle R. Guyton

making. Monahan (1981) applied this idea specifically to predictions of violent behavior, demonstrating that clinical predictions of future violence were wrong more often than not. His 1981 monograph influenced many professionals and researchers who began to investigate the feasibility of actuarial (i.e., statistical) predictions of violence. Early attempts by Quinsey, Pruesse, and Fernley (1975; also Pruesse & Quinsey, 1977) to apply actuarial techniques to clinical predictions of violence found mixed results. In a sample of 60 involuntary psychiatric patients who were discharged to the community, 18 (30%) were rearrested during a 39-month period. Quinsey and colleagues constructed a scale in which one point was assigned for each of the variables that discriminated between successes and failure. The variables included: (a) Diagnosis of a personality disorder, (b) age < 31 at discharge, (c) < 5 years spent in psychiatric hospitals, (d) admission offense not against persons, and (e) separation from a parent before age 16. This scale classified the patients with 78% accuracy. In an attempt to cross-validate this actuarial scale, Pruesse and Quinsey (1977) followed-up 206 patients released from a maximum security hospital. Accuracy of prediction dropped from 78% to 65%. Such “shrinkage” of results is not uncommon when cross-validating a measure on a new sample (Silver, Smith, & Banks, 2000). Harris, Rice, Quinsey and colleagues have been instrumental in the development of statistical techniques aimed at the prediction of violent behavior. As the actuarial method’s most vocal proponents (Quinsey et al., 2006), they have developed the most popular actuarial instrument used to predict violent behavior, the Violence Risk Appraisal Guide (VRAG; Harris, Rice, & Quinsey, 1993). It is worth mentioning here that items are chosen for inclusion in actuarial risk assessment schemes based on their empirical relationship with the outcome of interest (i.e., violence). Items included are not assumed to “cause” violence or serve an explanatory function, instead they are merely statistically associated with violence. It is quite possible, then, that the identified risk factors for violence are proxy variables for other more important, but as of yet unidentified, risk factors. Violence Risk Appraisal Guide (VRAG) Construction of the VRAG. The purpose of the VRAG is to predict long-term violence risk among individuals with prior violent episodes. The VRAG was constructed based on samples of mentally disordered offenders who had been previously followed by the researchers (Harris et al., 1993). The combined validation sample consisted of 685 men of whom 618 had an opportunity to recidivate. The sample was derived from previous studies of Oak Ridge psychiatric patients (Rice, Harris, Lang, & Bell, 1990; Rice, Harris, & Cormier, 1992) and included violent and sexually violent offenders. Offenders in the Rice et al. (1990) study consisted of insanity acquittees and matched comparisons who had spent at least one day in Oak Ridge between the years 1975 and 1981. The offenders in the Rice et al. (1992) study included patients who spent at least 2 years in the therapeutic community program during the period between 1968 and 1978. Although acknowledging that the construction sample consisted of individuals who were psychiatric patients, the authors ensured “that the instrument would work as well with mentally disordered offenders as with offenders free of serious mental disorder” (Quinsey et al., 1998, p. 145).

Violence Risk Assessment

161

For the purposes of scale development, the authors defined the outcome variable as any new criminal charge for a violent offense or incident that could have resulted in a criminal charge if committed in the community. Violent offenses that were included ranged in severity from assault to homicide. Institutional files and other official records were examined for incidents of violent behavior that did or would have resulted in criminal charges if committed in the community. The occurrence of violent offenses was then dichotomized for purposes of VRAG validation; the resultant outcome variable was at least one violent offense. The authors collected approximately 50 predictor variables on each of the individuals. The variables were selected on the basis of their empirical relationship to violence or the authors’ curiosity about their relationship. These variables included sociodemographic variables, childhood and adult adjustment variables, characteristics of the index offense, and psychological assessment variables, including IQ. Using discriminant function analysis, twelve variables were chosen based on their independent contribution to predicting violence (Harris et al., 1993). Each item is scored according to a weighting procedure based on how different the individual is from the base rate for that item in the validation sample. Therefore, each item has its own range of scores, with total scores ranging from –26 to +38. Scores are then used to categorize individuals into “bins,” where each bin is associated with a particular risk for violent recidivism. Validation of the VRAG. Harris et al. (1993) reported a correlation between total VRAG scores and violent recidivism of .44 (p < .01). The AUC in the construction sample was .76, indicating that randomly drawing a violent and nonviolent patient will result in the violent patient achieving the higher VRAG score 76% of the time. Harris et al. reported no optimal cut score in applying the VRAG, but instead assigned probabilities of risk to each VRAG category. Quinsey et al. (1998) also investigated whether individuals scoring in the highest category were also those individuals likely to commit the most violent offenses. The seriousness of each offender’s act was weakly related to VRAG score (r = .18, p < .01). In cross-validating the VRAG with a sample of sex offenders, Rice and Harris (1997) utilized a sample of 159 sex offenders who were not part of the initial construction sample. Follow-up data included incidents of violence as well as sexual violence. With sex offenders, the VRAG predicts general violence as well as it did in the construction sample. Total scores on the VRAG correlated .47 (compared with .44 in the construction sample) with violent recidivism. The relationship between VRAG scores and sexual recidivism was weak (r = .20). The use of total scores does not allow for inspection of the VRAG’s performance at various cut points. In their updated treatise on the VRAG, Quinsey et al. (2006) document the ability of their measure to judge risk among mentally disordered offenders, fire setters, and sex offenders released from Oak Ridge. A multitude of researchers have studied the VRAG alone (Harris, Rice, & Camilleri, 2004; Hilton & Simmons, 2001; Hilton, Harris, & Rice, 2001; Loza, Villaneuve, & Loza-Fanous, 2002) or in comparison with other risk assessment devices (Barbaree, Seto, Langton, & Peacock, 2001; Glover, Nicholson, Hemmati, Bernfeld, & Quinsey, 2002) in both forensic psychiatric and criminal populations. Kroner and Mills (2001), for example, compared the predictive abilities of the VRAG and four other measures in predicting both institutional misconduct and recidivism in a sample of violent, nonsexual, offenders. The other

162

Rebecca L. Jackson and Michelle R. Guyton

four measures included were the HCR-20 (extensively reviewed later in this paper), the Psychopathy Checklist–Revised (Hare, 2003; see review by Vitacco & Neumann, this volume), the Level of Service Inventory–Revised (Andrews & Bonta, 2003), and the Lifestyle Criminality Screening Form (Walters, White & Denney, 1991). Overall, there were no differences between any of the measures in ability to predict infractions and recidivism. There was a nonsignificant trend towards greater accuracy for the VRAG in classifying minor disciplinary infractions and nonviolent recidivism. In a study of four separate Canadian forensic samples, Harris et al. (2003) compared the VRAG to three other risk assessment measures commonly used with sex offenders: the Sex Offender Risk Appraisal Guide (SORAG; Quinsey et al., 1998; reviewed briefly later in this chapter), the RRASOR (Hanson, 1997), and the Static-99 (Hanson & Thornton, 1999). The general trend showed that the VRAG and SORAG outperformed the other two measures. Across all samples, the AUC for the VRAG in prediction of violent recidivism was .73, and for sexual recidivism was .65. In summary, the VRAG is the most well-validated actuarial risk assessment tool currently available to clinicians. It consistently demonstrates moderate to large AUC values in a variety of populations and settings. In most studies, the VRAG performed similarly or better than other actuarial devices and unstructured clinical judgment. Loza et al. (2002) caution that the VRAG may be less effective when the base rate of violence is expected to be significantly different than that of the VRAG validation sample. Sexual Offending Risk Appraisal Guide (SORAG). The SORAG (Quinsey, Harris, Rice & Cormier, 1998), an extension of the VRAG, was developed to estimate the risk of violence among individuals who have committed sex offenses in their past. The SORAG incorporates ten identical items from the VRAG and adds four items specific to sex offending. Given the large overlap with the VRAG, the two are highly correlated (Barbaree, Seto, Langton, & Peacock, 2001). The SORAG has demonstrated high accuracy in predicting violent recidivism and a slightly smaller yet still respectable ability to predict sexual recidivism (Barbaree et al., 2001; Harris, Rice, Quinsey, Lalumiere, Boer, & Lang, 2003).

Summary and Critique of Actuarial Research This brief review highlights the advances in actuarial predictions of violence. Actuarial methods have been shown to have better-than-chance predictive accuracy for any type of recidivistic behavior. When a clinician is asked to estimate the likelihood that a particular individual will commit any type of offense at some point in the future, actuarial methods such as the VRAG are likely to be helpful. Quinsey et al. (1998) concluded that the “VRAG performed exactly as one would have wished” (p. 150). Depending upon your view, this conclusion could be considered a marked overstatement. High scores suggest an increased probability of violence; they do not indicate certainty and they do not address the level of violence potential. Predicted violence can range from assault without bodily contact to murder. It is unknown how helpful VRAG predictions are to the clinician faced with making decisions regarding commitment to or release from a secure hospital. Litwack (2001) cogently argued this point in declaring that even a 100% chance of committing a simple assault does

Violence Risk Assessment

163

not necessarily justify secure commitment. Hart (2003) underscores these arguments and describes another concern: potential bias by varying definitions of the criterion behavior. In discussing how various actuarial tools are used to predict violence potential, he notes that the definition of violence used in the measure may not be the same level of violence that clinicians and legal bodies are interested in preventing. For example, noncontact sexual offenses (i.e., voyeurism, exhibitionism, etc.) may be excluded from statutory definitions of sexual violence but included as part of the predicted sexual violence. This imprecision introduces additional error into the prediction scheme. Another concern regarding the widespread usage of actuarial risk assessments is the extent to which error rates reported for the aggregrate data is transferable to individual prediction. Berlin and colleagues note that all individuals considered “high risk” are not all equally likely to engage in violence (Berlin, Galbreath, Geary, & McGlone, 2003). For example, if the high risk group has a 60% chance of recidivating, one individual’s true risk might be 80%, whereas another individual’s true risk is 40%. Actuarial devices do not allow the clinician to distinguish between the two, thus contributing to the error inherent in any prediction. Berlin et al. (2003) further argue that the confidence intervals applied to aggregate data are not generalizable to individual cases. “Actuarials can potentially be very misleading if one incorrectly attributes the overall risk of a previously screened group to a specific individual in it” (p. 381). An additional consideration with the VRAG and all actuarial instruments is their sole focus on violence prediction with no consideration of treatment or management. Actuarial tools define risk status, which compares individuals against others in terms of potential violence risk (Douglas & Skeem, 2005). Risk status describes the individual’s long-term, nonchanging risk level and is often of great value to legal decision-making bodies. However, clinicians involved in the daily management of these individuals are more interested in determining risk state, which includes all factors that both contribute to and reduce violence potential. These authors argue that the violence risk a person poses is not static and inflexible, but varies as a function of his current levels of particular risk factors. This suggests an increased attention to dynamic, or changeable, risk factors with the assumption that targeting dynamic risk factors for change may reduce an individual’s violence risk. Actuarials typically rely on static risk factors that, by definition, do not change. The exclusive use of static variables is inconsistent with comprehensive risk management. Although problematic in certain contexts, their narrow focus is not necessarily a limitation when the sole purpose of the risk assessment is to determine likelihood of future violence over a long period of time, or when used in conjunction with other data as part of a larger evaluation of violence risk and management. Supporters of the actuarial approach to risk assessment vary in their enthusiasm. Webster, Harris, Rice, Cormier, and Quinsey (1994) advocated that actuarial techniques be used as the principal, but not exclusive, method of rendering clinical decisions. They recommended that clinicians may want to adjust actuarial estimates of risk within a narrow range when there were compelling circumstances to do so. These authors have recently modified their recommendation and currently are advocating for the exclusive use of actuarial methods. They justify this position

164

Rebecca L. Jackson and Michelle R. Guyton

stating that “actuarial methods are too good and clinical judgment too poor to risk contaminating the former with the latter” (Quinsey, et al., 1998, p. 171). In their more recent text, Quinsey et al. (2006) review the literature on purely clinical predictions of dangerousness and provide a less harsh conclusion: “There is still no evidence of expertise in unaided clinical judgment” (p. 66). In contrast, Hanson (2000; see also Hanson & Harris, 2000; Walters, 2006) argued for a more balanced approach suggesting that evaluators use both clinical data (e.g., dynamic variables) and actuarial findings. In response to many of the criticisms of actuarial models, Steadman et al. (2000) created the Iterative Classification Tree (ICT) model. Although actuarial in nature, the ICT addresses many of the shortcomings commonly associated with the use of actuarial methods. Iterative Classification Tree (ICT) Model Construction of the ICT. Steadman et al. (2000) noted that despite actuarial tools demonstrating better accuracy than unstructured clinical judgment, they were not so readily accepted by practicing clinicians. They argue that the singular algorithm used by most actuarial scales, typically summing scores for a variety of risk factors, does not take into account the complexity of how risk factors are combined. In addition, clinicians may not see the statistical accuracy of actuarial tools as being that beneficial. To combat these issues, these authors developed a complex actuarial tool that seeks to classify individuals as low or high risk by each person’s specific combination of risk factors. This new approach was derived from data gathered for the MacArthur violence risk assessment study, a large multisite study that was well-designed to prospectively measure community violence among released civil psychiatric patients (Monahan et al., 2001). For the purposes of the ICT development, the patients were followed in the community for twenty weeks via self- and collateral-report and official arrest data to determine whether violence had occurred (Steadman et al., 2000). From the data, 134 possible risk factors were each examined for their relationship to the outcome variable. The most highly significant was selected and participants were partitioned into two groups based on whether they possessed that risk variable or not. Each of these two groups was further partitioned by additional risk factors, thus creating smaller subgroups of individuals who possessed similar risk factors for violence and, importantly, also shared similar levels of violence. This process becomes iterative when individuals left unclassified as low- or high-risk are repooled and sent through the classification tree repeatedly until no new individuals are classified. The authors report that 76.6% of all participants were classified as either low- or high-risk for violence and the AUC was an impressive .82. Research and use of the ICT. At present, only a few studies exist that use the ICT methodology to judge risk for violence. Seeking to generalize the results to another population, Silver et al. (2000) examined the ICT model compared to logistic regression analyses of the same risk factors in a retrospective file-based review of released offenders. The sample was split to both generate the ICT model for these offenders (n = 5856) and another sample was used to cross-validate the measure (n = 5858). Results supported those of Steadman et al. (2000) by suggesting that the ICT approach was highly useful in classifying individuals into low- or high-risk groups, but was

Violence Risk Assessment

165

not linked to increased accuracy over logistic regression models of prediction. More recently, Monahan et al. (2005) used the ICT with 700 civil psychiatric patients from three hospitals to predict community violence in the twenty weeks postdischarge. Results of the ICT showed that 76% of patients were accurately classified as low- or high-risk, with an AUC of .70. To date, the ICT approach is still being investigated by researchers and developed for differing populations. Because the ICT approach would require computer technology not readily available, it is mostly unavailable to practicing clinicians. The next decade will likely see a wealth of studies that both further validate this tool with varying forensic populations and make it more accessible to practicing clinicians. It can also aid management and intervention with high risk individuals. For example, individuals who were at high risk to act violently shared dynamic risk factors such as substance abuse, anger, and violent fantasies. Clinicians can use this information to tailor their questions during a risk assessment and target these variables for intervention.

Structured Professional Judgment The term clinical judgment in the risk assessment literature refers most often to unstructured clinical judgment. In reviewing the process of clinical predictions of risk, it becomes apparent that this lack of structure hinders the accuracy of judgments. Numerous authors (Monahan, 1981; see also Hart, 1998; Monahan & Steadman, 1994; Webster, Harris, Rice, Quinsey & Cormier, 1994) have criticized the use of the unstructured clinical judgment approach to risk assessment (see Mossman, 2000 for a less dismal view of the unstructured clinical approach). More recently, structured methods of risk assessment have been proposed to overcome the difficulties encountered with unstructured methods. Hart (1998) argued for the adoption of structured (i.e., guided) professional judgment for risk assessment. More specifically, structured professional judgment (SPJ) involves a clinician reviewing all relevant data sources for the presence of specified static and dynamic risk factors and then making a structured final risk judgment (Douglas, Ogloff, & Hart, 2003). Structured approaches to risk assessment improve over unstructured approaches by standardizing how (a) evaluations are conducted and (b) variables are weighted. SPJ approaches are similar to actuarials by assessing empirically-informed risk factors and incorporating them into a model for decision-making. However, SPJ approaches differ from actuarial methods in several important ways. Unlike actuarial approaches, the flexibility of clinical approaches allow for decisions to be rendered considering the “totality of the circumstances,” not simply a set of static variables. The flexibility of structured approaches allow professionals, in certain circumstances, to decide that the test results are not meaningful in a given case and should be ignored. As Hart (1998) pointedly asks, “Does it matter at all what an offender’s total score is on the VRAG, and how many risk factors are present or whether he scores above a specific cut-off, if he also expresses genuine homicidal intent?” (p. 126).

166

Rebecca L. Jackson and Michelle R. Guyton

Advances in Structured Clinical Judgment Structured clinical approaches to risk assessment have two main objectives. First, structured approaches strive to provide consistency. Secondly, they balance consistency with flexibility. The importance of these considerations led to the development of structured clinical guides to risk assessment. Currently, the Historical/Clinical/ Risk Management–20 (HCR-20; Webster, Douglas, Eaves, & Hart, 1997), Level of Service Inventory–Revised (LSI-R; Andrews & Bonta, 2003), and Sexual Violence Risk–20 (SVR-20; Boer, Hart, Kropp & Webster, 1997) comprise the most developed and validated guides available for clinicians to aid risk assessments. Each of these measures is described below. Finally, no discussion of risk assessment is complete without mention of psychopathy. Although extensively covered elsewhere in this textbook (see Vitacco & Neumann), our review will cover its relevance to judging risk. Other assessment devices are being developed but are too novel to have data to support their utility. In addition to recognizing dynamic risk factors related to violence risk, mental health professionals are slowly realizing the importance of assessing dynamic protective factors. A protective factor is a variable that if present, reduces the individual’s risk level. Thus, it is important to identify variables that increase risk as well as variables that reduce risk potential. The field has lagged behind in this area, and protective factors remain less well-examined than risk factors (Rogers, 2000). Schumaker and colleagues have expanded the concept of evaluation of risk and protective variables in spousal assault cases (Schumaker, Feldbau-Kohn, Slep, & Hayman, 2001). When mental health professionals are asked to provide an evaluation that contributes to risk management, consideration of protective factors (such as social support) is vital. Historical/Clinical/Risk Management-20 (HCR-20). The HCR-20 identifies 20 variables that are organized into three scales. The HCR-20 manual (Webster et al., 1997) provides definitions and scoring guidelines for each of the variables. The Historical scale includes ten mostly stable, static risk variables. The Clinical scale is comprised of items related to current mental status while the Risk Management scale assesses future environmental factors, such as exposure to destabilizers in the environment and stress. Webster et al. underscore this Risk Management aspect of the HCR-20 as particularly important for allowing flexibility in assessments. Identifying dynamic variables suggests targets for intervention, thus making structured approaches more consistent with the second prong of risk assessment, namely risk management. Borum (1996) wrote of the HCR-20 that “The promise of this instrument lies in its foundation on a conceptual model or scheme for assessing dangerousness; its basis in the empirical literature; [and] its operationally defined coding system” (p. 950). Monahan (1981) identified four common “blind spots” in the clinical prediction of violent behavior, namely: (a) the lack of specificity in defining the criterion, (b) a reliance on illusory correlations, (c) a failure to incorporate situational or environmental information, and (d) the neglect of base rates. As described above, the HCR-20 addresses three of Monahan’s chief concerns. First, it specifically defines the items and provides scoring criteria. Second, it uses clinical and risk variables that are empirically related to violence. Third, its ratings take into consideration

Violence Risk Assessment

167

environmental variables. In summary, the HCR-20 has a sound conceptual basis that addresses these relevant domains. Several researchers (Douglas, Ogloff, Nicholls, & Grant, 1999; Douglas & Webster, 1999; Grann, Belfrage, & Tengstrom; 2000; Kroner & Mills, 2001) have found support for the HCR-20’s validity with correctional, forensic psychiatric, and civil psychiatric populations. Douglas et al. (2003) employed the HCR-20 to determine risk judgments for physical violence and any violence for 100 forensic psychiatric inpatients released into the community. Multiple clinicians scored each item on the HCR-20 for a total score and gave a final risk judgment of low, medium, or high risk for each participant. Adequate interrater reliability was established (weighted kappa = .61). The AUC for the total score related to physical violence was .70 and for any violence was .67, whereas structured final risk judgments showed similar results. Moreover, adding structured final risk judgments to HCR-20 scores resulted in increased predictive accuracy. This provides support for using SPJ to complement actuarial assessment. Several researchers have compared the HCR-20 to other risk assessment approaches. Nichols, Ogloff, and Douglas (2004) retrospectively coded the HCR-20, Psychopathy Checklist—Screening Version (PCL:SV; Hart, Cox, & Hare, 1995), and the Violence Screening Checklist (VSC; McNiel & Binder, 1994) in a sample of male and female involuntary civil psychiatric patients. These patients were assessed for both inpatient and community violence via extensive records review. In regards to inpatient violence, AUC curves were nonsignificant for any of the three measures for any violence or physical violence. However, AUCs for any violence perpetrated by female patients were significant for the Historical (AUC = .69) and Clinical (AUC = .70) scales separately and combined (AUC = .74) and the PCL-R (AUC = .72). For physical violence, the Clinical Scale (AUC = .62) and the PCL:SV (AUC = .63) were significant. The VSC performed only slightly better than chance. In the analyses of community violence, the Historical and Risk Management scales, the total HCR-20 score, and the PCL:SV showed significant prediction beyond chance for both men and women across most definitions of violence. The VSC showed AUCs at or below chance (although this is not surprising given its design to predict in-hospital violence). In another comparison study, Douglas, Yeomans, and Boer (2005) compared the HCR-20, VRAG, Psychopathy Checklist—Revised and Screening Versions, and another actuarial guide called the Violent Offender Risk Assessment Scale (VORAS). Participants were Canadian prisoners released into the community and were randomly selected from two groups: those who recidivated violently and those who did not. Conclusions from the multiple analyses run in this study suggest that the HCR-20 and VRAG tools were useful in judging which offenders would violently recidivate. The PCL-R and VORAS, although significantly correlated and at times predictive, were less sound. The results of this study along with those of Nicholls et al. (2004), suggest that the HCR-20, an SPJ tool, is comparable to the “gold standard” actuarial methods. In summary, the above findings suggest that the HCR-20 has demonstrated predictive and postdictive accuracy parallelling that found with actuarial schemes, such as the VRAG and the Static-99, and does so in both correctional and civil samples. Demonstrating its generalizability to civil settings may provide extra support for the HCR-20. The VRAG and SORAG were developed on, and validated with, criminal

168

Rebecca L. Jackson and Michelle R. Guyton

samples. Therefore, a benefit of the HCR-20 may be its ability to predict violence in criminal and noncriminal settings. Preliminary research suggests strengths of the HCR-20 include reliability and generalizability. The Sexual Violence Risk-20 (SVR-20). The Sexual Violence Recidivism-20 (SVR20; Boer et al., 1997), similar to the HCR-20 in construction, was developed specifically for use with sex offenders. In constructing the SVR-20, the authors attempted to identify risk factors that are empirically related to future sexual violence—clinically useful, yet parsimonious. The items chosen for inclusion were derived through a review of the literature on sex offenders. Special attention was given to factors that discriminate between sexual and nonsexual offenders and on those associated with recidivistic violence or sexual violence in sex offenders. The SVR-20 is a fairly new instrument, and thus it has been the subject of little empirical investigation. Recently, Dutch researchers compared the SVR-20 to the Static-99 in predicting sexual recidivism among sex offenders released from a psychiatric inpatient facility (de Vogel, de Ruiter, van Beek, & Mead, 2004). Although both measures showed significantly better prediction over chance, the SVR-20 risk judgment correctly identified more sexual recidivists (AUC = .83) than the Static-99 risk category (AUC = .66). MacPherson (2003) reports that individual items from SVR-20 Psychosocial Adjustment and Sexual Offenses subsections significantly differentiated noncontact sexual recidivists from contact recidivists.

Summary and Critique of Structured Professional Judgment The authors of the HCR-20 and the SVR-20 avoid offering a decision-making algorithm with associated cut scores and categories of risk. Instead, they invite clinicians to use these items as a guideline to help them assess probabilities of risk and make recommendations regarding treatment and management of offenders. They provide no guidelines to achieve this. The absence of cut scores increases the clinician’s flexibility by allowing consideration of other important information in decisions regarding risk. An inherent limitation to this approach is that clinicians are left without empirically-supported guidance at the most crucial step of the assessment process: making an ultimate determination. Despite this vagueness, SPJ instruments are becoming widely validated through empirical research as useful tools in assessing and judging risk. Not only are the scale and total scores related to risk level, clinicians who use these scores to make a final judgment regarding risk demonstrate similar if not improved abilities to judge future violence. Some researchers (see Dvoskin & Heilbrun, 2001) suggest that actuarial and SPJ methods are not polar opposites but can, in fact, be used together. Actuarial tools can provide empirically-supported knowledge about an offender’s long-range risk of criminal behavior, which can be used in conjunction with SPJ methods to determine which dynamic risk factors are present; these can then become targets for intervention. Two additional measures deserve brief mention here for their utility in assessing and/or managing risk: The Level of Service Inventory–Revised (LSI-R; Andrews & Bonta, 2003) and the Psychopathy Checklist–Revised (PCL-R; Hare, 2003). Neither of these instruments was specifically designed to predict violence, yet both have

Violence Risk Assessment

169

demonstrated an ability to do so and are often used as adjuncts to comprehensive risk assessments. The LSI-R was designed as a measure of risk management in the community, whereas the PCL-R is a measure of personality. Each is briefly described below. The Level of Service Inventory–Revised (LSI-R). The LSI-R (Andrews & Bonta, 2003) contains 54 items grouped rationally, not empirically, onto 10 scales. It contains historical items and dynamic risk factors related to both antisocial cognitions and social relationships. Initially developed with offenders serving short (less than two years) sentences to guide decisions regarding parole supervision, it has demonstrated validity in predicting both general and violent recidivism (Bonta & Motiuk, 1992; Kroner & Mills, 2001). In their meta-analysis of the PCL-R and LSI-R in predicting recidivism, Gendreau, Goggin, and Smith (2002) found that the LSI-R slightly outperformed the PCL-R in predicting both general and violent recidivism. The focus of the LSI-R on risks and needs makes it directly applicable to management of risk (Nussbaum, 2006). Clinicians can use the scores on the differing subscales to pinpoint which areas should be of highest priority in terms of treatment and supervision of offenders or patients in the community. In fact, the LSI-R was recently modified to make it more amenable for use by case managers (Andrews, Bonta, & Wormith, 2004). Psychopathy Checklist–Revised, Second Edition (PCL-R; Hare, 2003). One final measure that will be briefly discussed is the Psychopathy Checklist–Revised. This highly regarded (Salekin, Rogers, & Sewell, 1996) tool measures Hare’s (1991/2003) conceptualization of psychopathy as a personality style that involves the remorseless use of others and subsequent irresponsible and antisocial behaviors. Although not originally designed as a risk assessment instrument, this measure has demonstrated utility in predicting future criminal and violent behavior (Hare, 2003). Twenty items are scored by a clinician on a 0–2 scale after ideally conducting an extensive file review, clinical interview, and sometimes collateral interviews. The instrument contains two higher-order factors, the first of which characterizes interpersonal and affective traits and the second which measures antisocial and impulsive life style. Three- and fourfactor solutions have also been proposed. The three-factor solution (Cooke & Michie, 2001) separates the interpersonal and affective items into separate factors and truncates the behavioral factor to include only impulsive and irresponsible life style items. Hare (2003) similarly disaggregates both higher-order factors into two facets each, such that Factor 1 contains the Interpersonal and Affective facets whereas Factor 2 contains the Impulsivity and Antisocial Lifestyle facets (see Vitacco & Neuman, this volume, for a more comprehensive review). The PCL-R was designed as a research tool, but with its sound psychometric properties and relative ability to distinguish between psychopaths and nonpsychopaths, it has been increasingly used in jails, prisons, and forensic psychiatric units for a variety of purposes (Serin, 1992). The criminal justice system has become increasingly interested in the use of the instrument for predicting violence and recidivism after release, and a number of studies support the use of the PCL-R in identifying offenders at high risk for violence and recidivism (Hemphill & Hare, 1995; Serin, 1996). Salekin, Rogers, and Sewell (1996) conducted a meta-analysis of studies where the PCL-R was used to predict recidivism and dangerousness. The average effect size for predicting violence (institutional or recidivistic) was .79, for general recidivism

170

Rebecca L. Jackson and Michelle R. Guyton

was .55, and for sexual sadism or deviant sexual arousal was .61.3 The relationship between PCL-R scores and violence led these authors to conclude that “The PCL-R appears to be unparalleled as a measure for making risk assessments with white male inmates” (p. 211).

Applying Risk Assessment Techniques to Clinical Practice Forensic clinicians have been legitimized in their risk assessment practice by the courts (see e.g., Janus, 2000; Monahan et al., 2001). Despite the fact that research has shown that no risk assessment method is highly accurate, courts have continued to place this responsibility on clinicians, arguing that there is nothing “inherently unattainable about a prediction of future criminal conduct” (Schall v. Martin, 1984, p. 2417). One possible conclusion is that in the absence of a proven method, selection of a risk assessment method may depend on the clinician’s personal preferences. Another possible conclusion maintains that no method has demonstrated superiority because all studies of accuracy have obscured the prediction task by asking clinicians to make overarching predictions regarding risk that are independent of situation and context (see, e.g., Heilbrun, 1997; Mulvey & Lidz, 1998; Skeem, Mulvey, & Lidz, 2000).

Contextualized Risk Assessment Monahan (1981) stated that what was needed for moral, legal, and empirical “progress in the area of prediction is a dramatic increase in the degree to which mental health professionals articulate what it is they are predicting and how they went about predicting it” (p. 17). Despite this plea, prediction research has continued to focus on the accuracy of clinicians’ judgments and not on process of decision-making itself. Most research in the area of violence prediction has been grounded in the cueutilization model of human judgment. Grisso (1991) explained that this model frames the task of predicting dangerousness as a “clinical exercise” in applying a context-free algorithm for combining risk factors. This context-free model of risk assessment does not parallel real-life decision making in many situations. Clinicians are likely to be asked “under what conditions is this person likely to be violent?” Importantly, the legally relevant question is, “Is this person’s risk of future violence severe enough to warrant detaining him or her involuntarily?” This kind of conditional risk assessment more closely resembles the type of questions and issues that clinicians actually face. It is naïve to suggest that (a) predictions of violence occur in a context-free framework, and (b) such predictions are accurate regardless of environmental or situational events. Similarly, Skeem, Mulvey, and Lidz (2000) criticized the cue-utilization model because it assumes that behavior is largely independent of context. As they noted, “a substantial body of research on mental health professionals’ (MHPs’) predictive accuracy appears to be based on a model of clinical decision making that inadequately represents the actual nature and goals of MHPs risk assessments” (p. 609).

Violence Risk Assessment

171

Contextual variables that have the potential to influence the likelihood of risk include (a) situational or environmental variables and (b) legal decision-making context. Situational or environmental variables include a myriad of issues, such as inpatient or community violence, substance use, domestic disputes, and medication compliance. Legally relevant contextual variables are often intertwined with situational variables. Examples include legal determinations, such as release from a maximum security hospital or certification as a sexually violent predator. Situational/Environmental Context. Past empirical evidence has suggested that clinicians tend to overpredict violence in their patients (Lidz, Mulvey, & Gardner, 1993; McNiel & Binder, 1991; Monahan, 1981; Steadman & Cocozza, 1974). Skeem et al. (2000) proposed that the dichotomous nature of their decisions (dangerous/not dangerous) may hide the more subtle context-specific decisions being rendered. For instance, a clinician may have predicted that a male patient will be violent toward his mother due to his alcohol intake, noncompliance with medication, and residence with his mother. However, if the patient subsequently complies with his medication and abstains from alcohol, his risk of violence is presumably lower. These contextual factors are often not made explicit when factored into binary decisions. As observed in this example, the clinician appears to have overpredicted violence because the salient situational variables are not explicated. A fundamental problem with the notion of actuarial risk assessment techniques is that they do not take into account these contextual variables. Their use may be incompatible with the flexibility needed to incorporate environmental and situational variables into a prediction. In contrast, their use may maximize predictive ability in certain contexts. More research is needed into the contextual variables that influence decision making and the process clinicians use in formulating their judgments. Legal Decision Making Context. Environmental/situational contexts are important for clinicians to consider in making responsible risk assessments. Heilbrun’s (1997) review of risk prediction and risk management models illustrates the importance of legal context in the decision-making process. For example, actuarial techniques may have the most utility when binary decisions are needed, such as to commit an individual under a sex offender civil commitment act. On the other hand, clinically guided risk assessment may be more useful during decisions regarding graduated release. This conceptualization of prediction versus management models provides a framework for shifting the way we think about risk assessment and the decisions resulting from that process. Given this importance on clearly delineating the decision-making process and incorporating contextual variables into a management plan, we turn now to discussion of how mental health professionals can articulate risk assessment information to aid both legal and clinical decision makers. Communicating Risk As researchers have begun to develop more advanced ways of identifying individuals at risk for violence, clinicians have begun to use these methods to help courts and other legal and clinical bodies make decisions regarding offenders and patients. But what pieces of data are more useful and relevant to decision-makers and how to

172

Rebecca L. Jackson and Michelle R. Guyton

present that information in a manner that eases understanding is no easy task. This section briefly reviews the literature on communicating violence risk and ends with suggestions for improving clarity in these communications. In a seminal paper, Monahan and Steadman (1996) examined lessons learned about risk communication from the field of meteorology. They suggest that probabilistic statements about risk have been advanced by both meteorology and psychology in risk communication, and that these can frequently be understood by the intended audience. However, categorical statements of risk, such as naming an individual as high, moderate, or low risk for violence, may also be useful from a risk management perspective. Finally combining both categorical and probabilistic language in the same message conveying risk potential may provide multiple pathways to understanding critical information (see also Webster, Harris, Rice, Cormier, & Quinsey, 1994). For example, clinicians may note that a patient poses a “high risk” for violence due to the specified risk factors and then list ways in which to manage that risk. In two separate studies, Heilbrun and colleagues administered surveys to mental health professionals to determine their preference for communicating risk via reports or testimony (Heilbrun, O’Neill, Stevens, Strohman, Bowman, & Lo, 2004; Heilbrun, O’Neill, Strohman, Bowman, & Philipson, 2000). Results from both surveys were similar in that mental health professionals prefer styles of communication that included listing the identified risk factors along with suggestions for how to intervene regarding the violence potential. Participants were more likely to value this type of communication style when the risk for violence was high, perhaps because they are aware that a statement about increased risk may be viewed as prejudicial and requires more explanation. Synthesizing information from all domains of violence risk assessment literature, Litwack, Zapf, Groscup, and Hart (2006) offer the following four guidelines for conducting an evaluation that taps both violence risk prediction and management (these authors also offer excellent and more detailed suggestions for conducting comprehensive risk assessments to which the reader is referred). These authors advocate for a clinically structured approach that may involve actuarial devices for risk prediction but emphasizes gathering extensive clinical information regarding contextual risk factors and providing guidance with respect to risk management. First, clinicians should collect a comprehensive history of the patient’s violence. This can be a tedious process during which clinicians should gather data from multiple sources, especially when concerned about the patient’s response style. Next, these authors suggest that clinicians are aware of their own perceptions about violence and how these affect their judgments regarding risk potential. Some clinicians may not want to view a patient as dangerous, whereas in other situations may consider any history of violence as indicative of current risk. This, again, emphasizes the point that it is important to gather a lot of information from multiple sources, including the patient. Direct questioning and indirect methods of assessing violent intentions, relationships with others, and insight into violence-related problems are useful. Third, clinicians are encouraged to evaluate the patient’s future situation and which risk factors may be present in the environment. It would also be useful to discover how the patient has reacted to this type of environment before, and what factors either increased or decreased risk

Violence Risk Assessment

173

for violence. These risk factors can then become targeted for intervention. Finally, as all psychologists learn in ethics courses, consultation is vital. Obtaining another opinion from a clinician seasoned at violence risk assessment is often crucial when confronted with complex cases. Reporting the results of a violence risk assessment is similar in most respects to other types of forensic communication. Evaluators should have a cogent grasp of the relevant legal standards in their jurisdiction, decide which types of information should be collected and then carefully, and at times painstakingly, gather the needed data (Weiner, 2006). Weiner further suggests that once these have occurred, “what remains is for consultants to express their impressions and conclusions in a clear, relevant, informative, and defensible manner” (p. 645). Consultation of the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) and with knowledgeable peers can aid this process. Case Example John Smith is a 34-year-old Caucasian male who was sentenced to seven years for convictions on armed robbery and drug possession. After serving five years of his sentence, Mr. Smith has been granted parole. The parole board has asked a forensic psychologist for an evaluation of Mr. Smith’s violence potential in the community. The evaluation will aid the board in determining the level of community supervision required, along with what specifications might be added to his parole agreement (i.e., treatment, living situation). The forensic psychologist conducts a records review and general clinical interview with Mr. Smith and compiles the following information. Legal History Mr. Smith was first arrested at the age of 16 for charges of disorderly conduct and public intoxication. He received a few more nuisance charges as a teenager but served no more than one night in juvenile detention. As an adult, Mr. Smith continued to garner more arrests related to his substance use and resulting out of control behavior. He served multiple jail sentences for drug possession, theft, disorderly conduct, and driving under the influence. In addition, he has two convictions for simple assault, both times when he complied with his drug dealer’s requests to beat up people as payment for his drug consumption. At the age of 25, he served a 3-year prison sentence for robbery and theft after attempting to rob a pharmacy. Mr. Smith was on parole for 6 months when he was charged with the index offense. Again, he robbed a pharmacy and when he was apprehended hours later, he was found in possession of several ounces of methamphetamine. Mr. Smith has been supervised in the community under probation and parole agreements. However, his parole officers noted that he frequently does not keep his appointments, had several positive urinalysis results for marijuana and methamphetamine, and appeared unmotivated to find stable employment. His probation officer revoked his status on two occasions, for which he served jail time. He had kept only one of three appointments during his 6-month parole and had not shown up for two separate drug-testing appointments. Prison records denote that Mr. Smith had some difficulties adjusting to prison life in the beginning of both sentences. He engaged in disruptive behavior with officers and had a couple of minor fights during the first few months. However, his behavior

174

Rebecca L. Jackson and Michelle R. Guyton

appeared to stabilize as he received no further disciplinary reports and was able to maintain employment in the kitchen during both sentences.

Violence History Official records denote two arrests for simple assault, both of which resulted in minor bodily injury for the victim. During both robbery attempts, Mr. Smith used an unloaded pistol to ensure compliance with his demands. During the clinical interview, he admitted to some other instances of violence for which he has no legal charges. He admitted that he sometimes “got physical” with his long-term girlfriend when they would have arguments. He expressed genuine remorse and stated that he was usually intoxicated when this would occur. He also acknowledged a couple of fist fights at parties which he also attributed to being “totally high.”

Clinical History Mr. Smith has no history of mental health symptoms or treatment in the community. Upon intake evaluation in the prison, he was diagnosed with an Adjustment Disorder and Polysubstance Dependence. He entered into substance abuse treatment during his first prison sentence and was removed for noncompliance. During his second sentence, Mr. Smith completed the program, although it took him 5 months longer than the 9 months allotted. Treatment records indicate that he was frequently not forthcoming regarding the extent of his substance use and its sequelae.

Devising the Violence Risk Assessment Protocol First, we consider the referral question. The parole board wants to know Mr. Smith’s risk of violence for the duration of his community supervision. This implies a twoprong approach that incorporates both actuarial and clinical tools. We can use actuarial tools to forecast the probability of violence and recidivism, and the VRAG would provide an excellent resource. Given the lack of sexual violence in his record, specific assessment of sexual violence risk is unwarranted at this time. However, violence risk potential is also affected by a number of salient dynamic risk factors that are important to assess. Structured methods such as the PCL-R and HCR-20, along with identifying details of the antecedents and outcomes of violent behavior, will allow examination of these. Once all of this information is assembled, we can use the various data points to make a final conclusion regarding the potential risk Mr. Smith poses to his community. In addition to gathering information to score these various assessment tools, it is vital to assess Mr. Smith’s response style via interview and through record review. Because he was noted in treatment notes to be guarded and hesitant to share sensitive information, he may be even less forthcoming with us due to the nature of the evaluation. Mr. Smith’s ability to provide information similar to that in his records will cue us to determine the weight that is accorded to his verbal statements.

Violence Risk Assessment

175

The preceding protocol may be more comprehensive than all cases require, and some might suggest this is redundant (Seto, 2005). However, each instrument measures a different set of risk variables which speak to risk on multiple levels. Providing only a VRAG score and probability estimate of violence fulfills the nature of the referral question but leaves the parole board with little guidance to structure the supervision plan.

Communicating Violence Risk Potential to the Parole Board Results from the PCL-R suggest that Mr. Smith is approximately at the fiftieth percentile in his level of psychopathy. In other words, Mr. Smith scored higher than approximately 50% of prison inmates. His elevations on this scale are primarily the result of having a lengthy history of irresponsible and impulsive behaviors, with few interpersonal and emotional characteristics noted. Mr. Smith’s score on the VRAG was in the sixth highest of nine categories of risk. Research suggests that 44% of people with scores similar to Mr. Smith recidivated within 7 years whereas 58% did so within 10 years. Another risk measure, the HCR-20, measures risk factors present in Mr. Smith’s history and those he is likely to face upon release. Mr. Smith has a number of historical risk factors which include substance use, chaotic relationship style, and employment problems. Clinical risk factors noted are impulsivity and a lack of insight, as well as some prior unresponsiveness to treatment. Mr. Smith may be at increased risk, given that his release plans include exposure to destabilizing influences like drugs and negative friends, lack of personal support, and stress. Mr. Smith appeared genuine in his efforts to lead a stable, substance-free, and law-abiding lifestyle, but showed poor insight by describing himself as impervious to environmental influences such as stress or friends using drugs. Mr. Smith’s risk of committing a violent or serious criminal act depends upon his varying level of risk factors such as substance use, acting impulsively, and an established history of breaking the law and committing violent acts while under the influence of alcohol and methamphetamine. If these factors are not addressed in his supervision plan, Mr. Smith presents a moderate to high risk of recidivism over the next several years. However, a careful and intensive supervision plan is recommended that includes a method for frequent monitoring of substance abuse along with continued substance abuse treatment when first released. In addition, Mr. Smith may also benefit from community placement away from former friends who continue to engage in substance use and criminal activities. Another potential intervention would be some type of psychoeducational class or group treatment that addresses problem-solving abilities and other coping skills. These types of supervision and treatment strategies are likely to limit Mr. Smith’s exposure to destabilizing influences and allow the parole board to monitor his substance use more carefully. Although this in no way guarantees a reduced risk for violence and recidivism, the plan targets the key risk factors Mr. Smith presents in an attempt to reduce them. Any protective factors, such as positive interpersonal relationships and stable employment, may also increase Mr. Smith’s likelihood of successful community transition.

176

Rebecca L. Jackson and Michelle R. Guyton

Summary This purpose of this chapter has been to present a general overview of the field of risk assessment, explore some of the assessment tools currently used in clinical practice and research, and contemplate how to incorporate violence risk assessment into good forensic practice. The nature of a chapter limits the depth to which these topics are explored, and the interested reader is referred to the references listed throughout. The history of violence risk assessment is long and storied, yet provides a guiding framework to understand how researchers and clinicians have developed the various assessment strategies. It is interesting to note that using clinical judgment to judge risk potential was once considered less optimal than flipping a coin but has enjoyed a recent resurgence. This appears due to a number of factors, which include the identification of numerous dynamic variables related to risk, the requirement of clinical skill to assess these factors, and a need for flexibility in integrating the various risk factors for violence. The research literature continues to grow in this area but there still exists a great skepticism regarding clinicians’ abilities to step away from cognitive biases and objectively evaluate risk. It appears likely that the next generation of risk assessment literature will examine how to combine actuarial and clinical predictions into an effectively structured risk judgment. Finally, violence risk assessment research has focused heavily on factors that increase risk and has paid less attention to variables that mitigate or alleviate risk. As risk management becomes more part and parcel of risk assessment, we hope that research continues to focus on this important area. Endnotes 1. Amicus briefs are reports submitted to the court by experts that are intended to provide triers of fact with more information with which to make a decision. The term derives from amicus curiae, Latin for “friend of the court.” 2. The Tarasoff decision widely affected clinical practice by charging mental health professionals who gain knowledge of imminent threat to others with a duty to protect by breaking confidentiality and warning others. 3. Despite these large effect sizes, the overall PCL-R total score correlation to future violence is consistently equal to .26 (Hemphill & Hare, 1995; Walters, 2003), rendering the PCL-R a relative giant in a field of generally weak predictors. In other words, there is still much to be learned about the etiology of violence.

References Addington v. Texas, 441 U.S. 418 (1979). American Bar Association. (1998). National benchbook on psychiatric and psychological evidence and testimony. Washington, DC: Author. American Psychiatric Association. (1974). Clinical aspects of the violent individual. Washington, DC: Author. Andrews, D. A. & Bonta, J. (2003) Level of Service Inventory—Revised (LSI-R). Toronto, Ontario, Canada: Multi-Health Systems. Andrews, D. A., Bonta, J., & Wormith, S. (2004). Manual for the level of service/Case Management Inventory IS/CMI. Toronto, Ontario, Canada: Multi-Health Systems.

Violence Risk Assessment

177

Barbaree, H. E., Seto, M. C., Langton, C. M., & Peacock, E. J. (2001). Evaluating the predictive accuracy of six risk assessment instruments for adult sex offenders. Criminal Justice and Behavior, 28, 490–521. Barefoot v. Estelle, 463 U.S. 880, (1983). Baxstrom v. Herold, 383 U.S. 107 (1966). Berlin, F. S., Galbreath, N. W., Geary, B., & McGlone, G. (2003). The use of actuarials at civil commitment hearings to predict the likelihood of future sexual violence. Sexual Abuse: A Journal of Research and Treatment, 15(4), 377–382. Boer, D. P., Hart, S. D., Kropp, P. R., & Webster, C. D. (1997). Manual for the Sexual Violence Risk—20: Professional guidelines for assessing risk of sexual violence. Vancouver, BC: The British Columbia Institute Against Family Violence. Bonta, J., & Motiuk, L. L. (1992). Inmate classification. Journal of Criminal Justice, 20, 343–353. Borum, R. (1996). Improving the clinical practice of violence risk assessment: Technology, guidelines, and training. American Psychologist, 51, 945–956. Borum, R., & Reddy, M. (2001). Assessing violence risk in Tarasoff situations: A fact-based model of inquiry. Behavioral Sciences and the Law, 19, 375–385. Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Cooke, D. J., & Michie, C. (2001). Refining the construct of psychopathy: Towards a hierarchical model. Psychological Assessment, 13, 171–188. de Vogel, V., de Ruiter, C., van Beek, D., Mead, G. (2004). Predictive validity of the SVR-20 and Static-99 in a Dutch sample of treated sex offenders. Law and Human Behavior, 28, 235–251. Dixon v. Pennsylvania, 325 F. Supp. 966, (1971). Douglas, K. S., Ogloff, J. R. P., & Hart, S. D. (2003). Evaluation of a model of violence risk assessment among forensic psychiatric patients. Psychiatric Services, 54(10), 1372–1379. Douglas, K. S., Ogloff, J. R. P., Nicholls, T.L., & Grant, I. (1999). Assessing risk for violence among psychiatric patients: The HCR-20 violence risk assessment scheme and the Psychopathy Checklist: Screening Version. Journal of Consulting and Clinical Psychology, 67, 917–930. Douglas, K. S., & Skeem, J. L. (2005). Violence risk assessment: Getting specific about being dynamic. Psychology, Public Policy, and Law, 11(3), 347–383. Douglas, K. S., Webster, C. D. (1999). The HCR-20 violence risk assessment scheme: Concurrent validity in a sample of incarcerated individuals. Criminal Justice and Behavior, 26, 3–19. Douglas, K. S., Yeomans, M., & Boer, D. P. (2005). Comparative validity analysis of multiple measures of violence risk in a sample of criminal offenders. Criminal Justice and Behavior, 32(5), 479–510. Dvoskin, J. A., & Heilbrun, K. (2001). Risk assessment and release decision-making: Toward resolving the great debate. Journal of the American Academy of Psychiatry and Law, 29, 6–10. Ennis, B. J., & Litwack, T. R. (1974). Psychiatry and the presumption of expertise: Flipping coins in the courtroom. California Law Review, 62, 693–752. Garb, H. N., & Boyle, P. A. (2003). Understanding why some clinicians use pseudoscientific methods: Findings from research on clinical judgment. In S. O. Lilienfeld, S. J. Lynn, & J. M. Lohr (Eds.), Science and pseudoscience in clinical psychology (pp. 17–38). New York: Guilford Press. Gendreau, P., Goggin, C., & Smith, P. (2002). Is the PCL-R really the “unparalleled” measure of offender risk? A lesson in knowledge cumulation. Criminal Justice and Behavior, 29(4), 397–426.

178

Rebecca L. Jackson and Michelle R. Guyton

Glover, A. J. J., Nicholson, D. E., Hemmati, T., Bernfeld, G. A., & Quinsey, V. L. (2002). A comparison of predictors of general and violent recidivism among high risk federal offenders. Criminal Justice and Behavior, 29, 235–249. Goldberg, L. R. (1968). Simple Models or Simple Processes? Some research on clinical judgments. American Psychologist, 23, 483–496. Grann, M., Belfrage, H., & Tengstrom, A. (2000). Actuarial assessment of risk for violence: Predictive validity of the VRAG and the Historical part of the HCR-20. Criminal Justice and Behavior, 27, 97–114. Grisso, T. (1991). Clinical assessments for legal decision making: Research recommendations. In S. A. Shah & B. J. Sales (Eds.), Law and mental health: Major developments and research needs (pp. 49–81). Washington, DC: National Institute of Mental Health. Grisso, T. & Applebaum, P.S. (1992). Is it unethical to offer predictions of future violence? Law and Human Behavior, 16, 621–633. Hanson, R. K. (1997). The development of a brief actuarial risk scale for sexual offense recidivism (User Report 1997–04). Ottawa, Ontario: Solicitor General of Canada. Hanson, R. K. (2000). Risk Assessment. Prepared for the Association for the Treatment of Sexual Abusers. Hanson, R. K. & Harris, A. J. R. (2000). Where should we intervene? Dynamic predictors of sexual assault recidivism. Criminal Justice and Behavior, 27, 6–35. Hanson, R. K., & Thornton, D. (1999). Static-99: Improving actuarial risk assessments for sex offenders. Solicitor General of Canada. www.sgc.gc.ca. Hare, R. D. (1991). The Revised Psychopathy Checklist. Toronoto: Multi-Health Systems. Hare, R. D. (2003). Hare PCL-R (2nd ed.). Toronto: Multi-Health Systems. Harris, G. T., Rice, M. E., & Camilleri, J. A. (2004). Applying a forensic actuarial assessment (the Violence Risk Appraisal Guide) to nonforensic patients. Journal of Interpersonal Violence, 19, 1063–1074. Harris, G.T., Rice, M.E., & Quinsey, V.L. (1993). Violent recidivism of mentally disordered offenders: The development of a statistical prediction instrument. Criminal Justice and Behavior, 20, 315–335. Harris, G. T., Rice, M. E., Quinsey, V. L., Lalumière, M. L., Boer, D., & Lang, C. (2003). A multi-site comparison of actuarial risk instruments for sex offenders. Psychological Assessment, 15, 413–425. Hart, S.D. (1998). The role of psychopathy in assessing risk for violence: Conceptual and methodological issues. Legal and Criminological Psychology, 3, 121–137. Hart, S. D. (2003). Actuarial risk assessment: Commentary on Berlin et al. Sexual Abuse: A Journal of Research and Treatment, 15(4), 383–388. Hart, S. D., Cox, D. N., & Hare, R. D. (1995). Manual for the Hare Psychopathy Checklist: Screening Version (PCL:SV). Toronto: Multi-Health Systems. Heilbrun, K. (1997). Prediction versus management models relevant to risk assessment: The importance of legal decision-making context. Law and Human Behavior, 21, 347–359. Heilbrun, K., O’Neill, M. L., Stevens, T. N., Strohman, L. K., Bowman, Q. & Lo, Y. (2004). Assessing normative approaches to communicating violence risk: A national survey of psychologists. Behavioral Sciences and the Law, 22, 187–196. Heilbrun, K., O’Neill, M. L., Strohman, L. K., Bowman, Q., & Philipson, J. (2000). Expert approaches to communicating violence risk. Law and Human Behavior, 24, 137–148. Hemphill, J.F., & Hare, R. D. (1995). Psychopathy Checklist factor scores and recidivism. Issues in Criminological and Legal Psychology, 24, 68–73.

Violence Risk Assessment

179

Hilton, N. Z., Harris, G. T., & Rice, M. E. (2001). Predicting violence by serious wife assaulters. Journal of Interpersonal Violence, 16, 408–423. Hilton, N. Z., & Simmons, J. L. (2001). Actuarial and clinical risk assessment in decisions to release mentally disordered offenders from maximum security. Law and Human Behavior, 25, 393–408. Janus, E.S. (2000). Sexual predator commitment laws: Lessons for law and the behavioral sciences. Behavioral Sciences and the Law, 18, 5–21. Kansas v. Hendricks, 521 U.S. 346 (1997). Kroner, D. G. (2005). Issues in violence risk assessment: Lesson learned and future directions. Journal of Interpersonal Violence, 20(2), 231–235. Kroner, D. G., & Mills, J. F. (2001). The accuracy of five risk appraisal instruments in predicting institutional misconduct and new convictions. Criminal Justice & Behavior, 28(4), 471–489. Lessard v. Schmidt, 413 F. Supp. 1318 (E.D. Wis. 1976). Lidz, C. W., Mulvey, E. P., & Gardner, W. (1993). The accuracy of predictions of violence to others. Journal of the American Medical Association, 269, 1007–1011. Litwack, T. R. (2001). Actuarial versus clinical assessments of dangerousness. Psychology, Public Policy, and Law, 7, 409–443. Litwack, T. R., Zapf, P. A., Groscup, J. L., & Hart, S. D. (2006). Violence risk assessment: Research, legal, and clinical considerations. In I. B. Weiner & A. K. Hess, (Eds.), The handbook of forensic psychology (3rd ed., pp. 487–533). Hoboken, NJ: Wiley. Loza, W., Villeneuve, D. B., & Loza-Fanous, A. (2002). Predictive validity of the Violence Risk Appraisal Guide: A tool for assessing violent offenders’ recidivism. International Journal of Law and Psychiatry, 25, 85–92. McNiel, D. E., & Binder, R. L. (1991). Clinical assessment of the risk of violence among psychiatric inpatients. American Journal of Psychiatry, 148, 1317–1321. McNiel, D. E., & Binder, R. L. (1994). Screening for risk of inpatient violence: Validation of an actuarial tool. Law and Human Behavior, 18, 579–586. MacPherson, G. (2003). Predicting escalation in sexually violent recidivism: Use of the SVR20 and the PCL:SV to predict outcome with non-contact recidivists and contact recidivists. Journal of Forensic Psychiatry and Psychology, 14, 615–627. Meehl, P. E. (1954/1996). Clinical versus statistical prediction: A theoretical analysis and a review of the evidence. Northvale, NJ: Jason Aronson. Monahan, J. (1981). The clinical prediction of violent behavior. Washington, DC: National Institute of Mental Health. Monahan, J. (2000). Violence risk assessment: Scientific validity and evidentiary admissibility. Washington and Lee Law Review, 57, 901–918. Monahan, J. & Steadman, H. J. (1994). Violence and mental disorder: Developments in risk assessment. Chicago, IL: The University of Chicago Press. Monahan, J. & Steadman, H. J. (1996). Violent storms and violent people: How meteorology can inform risk communication in mental health law. American Psychologist, 51, 931–938. Monahan, J. & Steadman, H. J. (2001). Violence risk assessment: A quarter century of research. In L. E. Frost & R. J. Bonnie (Eds.), The evolution of mental health law (pp. 195–211). Washington, DC: American Psychological Association. Monahan, J., Steadman, H. J., Silver, E., Appelbaum P. S., Robbins, P. C., Mulvey, E. P. et al. (2001). Rethinking risk assessment: The MacArthur study of mental disorder and violence. New York: Oxford University Press.

180

Rebecca L. Jackson and Michelle R. Guyton

Monahan, J., Steadman, H. J., Robbins, P. C., Appelbaum, P., Banks, S., Grisso, T., Heilbrun, K., Mulvey, E. P., Roth, L., & Silver, E. (2005). An actuarial model of violence risk assessment for persons with mental disorders. Psychiatric Services, 56, 810–815. Mossman, D. (1994). Assessing predictions of violence: Being accurate about accuracy. Journal of Consulting and Clinical Psychology, 62, 783–792. Mossman, D. (2000). Commentary: Assessing the risk of violence—Are accurate predictions useful? Journal of the American Academy of Psychiatry and Law, 28, 272–281. Mulvey, E. P. & Lidz, C. W. (1998). Clinical prediction of violence as a conditional judgment. Social Psychiatry and Psychiatric Epidemiology, 33, S107–S113. Mulvey, E. P., Shaw, E., & Lidz, C. W. (1994). Why use multiple resources in research on patient violence in the community? Criminal Behaviour and Mental Health, 4(4), 253–258. Nicholls, T. L., Ogloff, J. R. P., & Douglas, K. S. (2004). Assessing risk for violence among male and female civil psychiatric patients: The HCR-20, PCL:SV, and VSC. Behavioral Sciences and the Law, 22, 127–158. Nussbaum, D. (2006). Recommending probation and parole. In I. B. Weiner, & A. K. Hess, (Eds). The handbook of forensic psychology (3rd ed., pp. 426–483). Hoboken, NJ: John Wiley & Sons. Oskamp, S. (1965). Overconfidence in case study judgments. Journal of Consulting Psychology, 29, 261–265. Otto, R K. (August, 2001). Setting specific effects on test results in forensic cases. Presented at the American Psychological Association Annual Convention, San Francisco, CA. Pruesse, M. G., & Quinsey, V. L. (1977). The dangerousness of patients released from maximum security: A replication. Journal of Psychiatry and Law, 5, 293–299. Quinsey, V. L., & Ambtman, R. (1979). Variables affecting psychiatrists’ and teachers’ assessments of the dangerousness of mentally ill offenders. Journal of Consulting and Clinical Psychology, 47, 353–362. Quinsey, V. L., Harris, G. T., Rice, M. E. & Cormier, C. A. (1998). Violent offenders: Appraising and managing risk. Washington, DC: American Psychological Association. Quinsey, V. L., Harris, G. T., Rice, M. E., & Cormier, C. A. (2006). Violent offenders: Appraising and managing risk (2nd ed.). Washington DC: American Psychological Association. Quinsey, V. L., Pruesse, M., & Fernley, R. (1975). Oak Ridge patients: Prerelease characteristics and postrelease adjustment. Journal of Psychiatry and Law, 3, 63–77. Rice, M. E. & Harris, G. T. (1995). Violent recidivism: Assessing predictive validity. Journal of Consulting and Clinical Psychology, 63, 737–748. Rice, M. E. & Harris, G. T. (1997). Cross-validation and extension of the violence risk appraisal guide for child molesters and rapists. Law and Human Behavior, 21, 231–241. Rice, M. E., Harris, G. T., & Cormier, C. (1992). Evaluation of a maximum security therapeutic community for psychopaths and other mentally disordered offenders. Law and Human Behavior, 16, 399–412. Rice, M. E., Harris, G. T., Lang, C., & Bell, V. (1990). Recidivism among male insanity acquittees. The Journal of Psychiatry and Law, 18, 379–403. Rogers, R. (2000). The uncritical acceptance of risk assessment in forensic practice. Law and Human Behavior, 24, 595–605. Salekin, R. T., Rogers, R., & Sewell, K. W. (1996). A review and meta-analysis of the psychopathy checklist and psychopathy checklist-revised: Predictive validity of dangerousness. Clinical Psychology: Science and Practice, 3, 203–215. Schall v. Martin, 467 U.S. 253, 264 (1984). Schumaker, J. A. Feldbau-Kohn, S., Slep, A. M. S., & Heyman, R. E. (2001). Risk factors for male-to-female partner abuse. Aggressive and Violent Behavior, 6, 281–352.

Violence Risk Assessment

181

Serin, R. C. (1992). The clinical application of the Psychopathy Checklist-Revised (PCL-R) in a prison population. Journal of Clinical Psychology, 48, 637–642. Serin, R. C. (1996). Violent recidivism in criminal psychopaths. Law and Human Behavior, 20, 207–217. Seto, M. C. (2005). Is more better? Combining actuarial risk scales to predict recidivism among adult sex offenders. Psychological Assessment, 17, 156–167. Silver, E., Smith, W., & Banks, S. (2000). Constructing actuarial devices for predicting recidivism: A comparison of methods. Criminal Justice and Behavior, 27, 733–764. Skeem, J. L., Mulvey, E. P., & Lidz, C. W. (2000). Building mental health professionals’ decisional models into tests of predictive validity: The accuracy of contextualized predictions of violence. Law and Human Behavior, 24, 607–628. Steadman, H. J. (2000). From dangerousness to risk assessment of community violence: Taking stock at the turn of the century. Journal of the American Academy of Psychiatry and Law, 28, 265–271. Steadman, H. J., & Coccoza, J. (1974). Careers of the criminally insane. Lexington, MA: Lexington books. Steadman, H. J. Silver, E., Monahan, J., Appelbaum, P. S.; Clark Robbins, P.; Mulvey, E. P., Grisso, T., Roth, L. H., Banks, S. (2000). A classification tree approach to the development of actuarial violence risk assessment tools. Law and Human Behavior, 24, 83–100. Swets, J. A. (1996). Signal detection theory and ROC analysis in psychology and diagnostics. Mahwah, NJ: Lawrence Erlbaum Associates, Publishers. Thornberry, T., & Jacoby, J. (1979). The criminally insane: A community follow-up of mentally ill offenders. Chicago, IL: University of Chicago Press. Walters, G. D. (2003). Predicting institutional adjustment and recidivism with the Psychopathy Checklist factor scores: A meta-analysis. Law and Human Behavior, 27, 541–558. Walters, G. D. (2006). Risk-appraisal versus self-report in the prediction of criminal justice outcomes: A meta-analysis. Criminal Justice and Behavior, 33, 279–304. Walters, G. D., White, T. W. & Denney, D. (1991). The lifestyle criminality screening form: Preliminary data. Criminal Justice and Behavior, 18, 406–418. Webster, C. D., Douglas, K. S., Eaves, D., & Hart, S. D. (1997). HCR-20: Assessing risk for violence (Version 2). Burnaby, BC: Mental Health, Law, and Policy Institute, Simon Fraser University. Webster, C. D., Harris, G. T., Rice, M. E., Cormier, C., & Quinsey, V. L. (1994). The violence prediction scheme: Assessing dangerousness in high risk men. Toronto, Canada: University of Toronto, Centre of Criminology. Weiner, I. B. (2006). Writing forensic reports. In I. B. Weiner & A. K. Hess, (Eds.), The Handbook of Forensic Psychology (3rd ed., pp. 631–651). Hoboken, NJ: Wiley.

8 Evaluations for the Civil Commitment of Sexual Offenders Rebecca L. Jackson and Henry J. Richards

Evaluations for the Civil Commitment of Sexual Offenders The nation’s first civil commitment law for sex offenders was enacted in Washington State following a series of tragic events in the 1980s, and the perceived failure of the legal system to prevent them. Gene Raymond Kane was on work release from the prison where he had been serving a sentence for sexually assaulting two women. During this time, he kidnapped and murdered a young Seattle woman. The state’s “sexual psychopathy” treatment program, operated by a state psychiatric hospital, had deemed him “too dangerous to handle.” Earl Shriner was released from a Washington prison after serving ten years for kidnapping and assaulting two teenage girls. In addition to this charge, Shriner had a history of sexual violence. Despite information suggesting he would harm children after his release, the state was unable to commit him through traditional civil commitment statues because there was no “recent overt act” or imminent dangerousness. Two years after his release from prison, Shriner raped and mutilated a 7-year-old boy. In response to these crimes, then-Governor Gardner appointed a Task Force on Community Protection and charged it with the duty of making recommendations to change the existing laws pertaining to sex offenders. During this period of time, Wesley Allen Dodd, a confessed killer of young boys, was apprehended trying to abduct a 6-year-old boy. The need to alter current laws, with an eye both toward harsher penalties for sex offenses as well as their prevention, met with great public support. The Task Force’s findings and recommendations were included in a comprehensive bill addressing sex offenses. Included in this bill were the state’s sex offender registry and community notification program as well as the civil commitment law for “sexually violent predators.” Washington State’s Community Protection Act was passed in 1990. Horrible crimes, especially ones that, in hindsight, “should” or “could” have been prevented, often trigger action in attempts to prevent future tragedies. Many jurisdictions have instituted laws to prevent sex crimes. Florida, for example, requires released sex offenders to wear GPS tracking devices so that their movements may 183

184

Rebecca L. Jackson and Henry J. Richards

be monitored. As many as 12 states, including Iowa and California, have passed laws restricting where sex offenders may live. In 1996, then-President Bill Clinton required all states to establish and maintain a sex offender registry. Legislating mandatory sentences of increased length for sex offenders became routine for state legislatures in the 1990s, and many adopted severe penalties for “second-strike” offenders, with the goal of incapacitating these offenders via incarceration through middle-age and into older adulthood. Although it is not clear that imposing such harsh penalties and removing judicial discretion will achieve the intended goal in every case, due to the potential undermining effects of plea negotiations, it is clear that many more sex offenders are “off the streets.” Many of these legislative initiatives, however, leave a significant number of potentially dangerous offenders free in communities, unencumbered by oversight of criminal justice authorities. Many legislatures found civil commitment an attractive solution to the gaps and loopholes they saw in their extended criminal penalties. Civil commitment laws for sexual offenders, also known as Sexually Violent Predator (SVP) statutes, allow for the involuntary civil commitment of sex offenders following the expiration of their prison terms. All 50 states have sex offender registries, but only a handful of states have taken the additional step of creating civil commitment laws especially designed for sex offenders. Following the enactment of Washington’s law in 1990, 16 other states have established similar laws (Arizona, California, Florida, Iowa, Illinois, Kansas, Massachusetts, Minnesota, Missouri, New Jersey, North Dakota, Pennsylvania [juveniles aging out of juvenile system only], South Carolina, Texas [outpatient], Virginia, and Wisconsin). This chapter aims to introduce readers to the SVP laws and present recommendations for conducting empirically supported evaluations. The practice of civilly committing sex offenders remains controversial. Although this chapter will touch upon some of the challenges unique to SVP evaluations, for comprehensive and detailed reviews of the clinical, legal, and ethical controversies, the reader is referred to several excellent reviews provided by Campbell (2003; 2004), Doren (2002), Janus (1998, 2000), Morse (1998, 2003), Schopp and Sturgis (1995), Winick (1998), and Winick and La Fond (2003). The notion of civilly committing sex offenders is not entirely new. Sexual psychopath laws were initially enacted in the 1930s and 1940s to allow for the prolonged commitment of sexually violent individuals for the purposes of treatment. The early sexual psychopath laws were enacted to help society deal with sexual offenders who were “too sick to deserve punishment” (Janus, 2000). In these laws, treatment replaced punishment. In contrast, the “second generation” of commitment laws was enacted as a public safety measure in extending the incapacitation of offenders who had already served their criminal sentences. In this new model, treatment followed punishment. Kansas has the most well-known of the second-generation commitment laws, due largely to the Supreme Court’s Kansas v. Hendricks (1997) decision. In Hendricks, the court upheld the state’s police power rights and legitimized the constitutionality of SVP commitment laws. Briefly, Hendricks was a convicted child molester serving a sentence in a Kansas state penal institution. Shortly before his release in 1994, the state petitioned to have Hendricks civilly committed under a newly-enacted sexually violent predator law (see Kan. Stat. Ann. 59–29[a], 1994). Hendricks argued against

Evaluations for the Civil Commitment of Sexual Offenders

185

the constitutionality of this law and was eventually denied relief by the U.S. Supreme Court. The Kansas statute allows for the commitment of “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others” (Kan. Stat. Ann. 59-29[a], 1994). Although state-to-state variation exists in the exact language of these laws, each shares four common elements: (a) a past act of sexually harmful conduct, (b) a current mental disorder or abnormality, (c) a finding of risk of future sexually harmful conduct, and (d) some relationship between the mental abnormality and the likelihood of sexual violence. Table 8.1 summarizes the language used in each of the statutes allowing for easy comparison across statutes. The table should be used for reference only and not depended upon in practice. As always, clinicians should become familiar with current statues and case law in the jurisdiction in which they practice. For the purposes of this chapter, we will focus on those issues that are common to most, if not all, of the statutes and provide a wide framework for understanding. Some finetuning will be required depending upon the particular jurisdiction.

TABLE 8.1

Civil Commitment of Sexual Offenders: Statute Details by State

State

Nomenclature

Arizona

Sexually Violent Persons

California

Sexually Violent Predators

Standard of dangerousness

Qualifying disorders

Convicted, found guilty but insane, or incompetent to stand trial for a sexually violent offense

Likely to engage in acts of sexual violence

Convicted of a sexually violent offense against one or more victims

Likely to engage in sexually violent criminal behavior

Mental Disorder: a paraphilia, personality disorder or conduct disorder or any combination of paraphilia, personality disorder and conduct disorder Mental disorder: congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others

Eligibility

(continued)

186

Rebecca L. Jackson and Henry J. Richards

TABLE 8.1 Civil Commitment of Sexual Offenders: Statute Details by State (Continued) State

Standard of dangerousness

Nomenclature

Eligibility

Florida

Sexually Violent Predators

Illinois

Sexually Violent Persons

Convicted, adjudicated delinquent, or found not guilty by reason of insanity for a sexually violent offense Convicted, adjudicated delinquent, or found not guilty by reason of insanity for a sexually violent offense

Iowa

Sexually Violent Predators

Convicted, found not guilty by reason of insanity, or found incompetent to stand trial for a sexually violent offense

Likely (defined as more likely than not) to engage in predatory acts constituting sexually violent offenses

Kansas

Sexually Violent Predator

Convicted, found incompetent to stand trial, or found not guilty by reason of insanity for a sexually violent offense

Likely to engage in repeat acts of sexual violence

Massachusetts

Sexually Dangerous Person

Convicted, adjudicated delinquent, or found incompetent to stand trial for a sexual offense

Likely to engage in sexual offenses if not confined to a secure facility

Qualifying disorders

Likely to engage in acts of sexual violence

Mental abnormality: a mental condition affecting a person’s emotional or volitional capacity

Substantial probability that the person will engage in acts of sexual violence

Mental disorder: congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence Mental abnormality: a congenital or acquired condition affecting the emotional or volitional capacity predisposing that person to commit sexually violent offenses Mental condition, whether congenital or acquired, which affects the person’s emotional or volitional capacity predisposing that person to commit sexually violent offenses Mental abnormality: a congenital or acquired condition that affects the emotional or volitional capacity of the person that predisposes that person to commit sexually violent offenses

Evaluations for the Civil Commitment of Sexual Offenders

187

TABLE 8.1 Civil Commitment of Sexual Offenders: Statute Details by State (Continued) State

Nomenclature

Minnesota

Sexually Dangerous Persons

Missouri

Sexually Violent Predators

New Jersey

Sexually Violent Predator

North Dakota

Sexually Dangerous Individuals

Eligibility Engaged in a course of harmful sexual conduct that creates a substantial likelihood of serious physical or emotional harm to victims Pled guilty, found guilty, or found not guilty by reason of mental disease of a sexually violent offense or has been committed as a sexual psychopath Convicted, adjudicated delinquent, or found not guilty by reason of insanity for commission of a sexually violent offense, or found incompetent to stand trial for commission of a sexually violent offense Shown to have engaged in sexually predatory conduct

Standard of dangerousness

Qualifying disorders

Likely to engage in acts of harmful sexual conduct

Sexual, personality, or other mental disorder or dysfunction

More likely than not to engage in predatory acts of sexual violence if not confined in a secure facility

Mental abnormality: congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses Mental abnormality: a mental condition that affects a person’s emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence

Likely to engage in acts of sexual violence

Likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others

A congenital or acquired condition that is manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction.

(continued)

188

Rebecca L. Jackson and Henry J. Richards

TABLE 8.1 Civil Commitment of Sexual Offenders: Statute Details by State (Continued) State

Nomenclature

Pennsylvania

Sexually Violent Persons

South Carolina

Sexually Violent Predator

Texas (outpatient commitment only)

Sexually Violent Predators

Virginia

Sexually Violent Predators

Eligibility Sexually violent delinquent child: found delinquent for an act of sexual violence and remaining in the institution or facility upon attaining twenty years of age (“aging out” juveniles) Convicted of, found incompetent to stand trial, found not guilty by reason of insanity, or guilty but mentally ill of sexually violent offense Repeat sexually violent offender

Convicted of a sexually violent offense, or unrestorably incompetent to stand trial

Standard of dangerousness

Qualifying disorders

Likely to engage in an act of sexual violence

Mental abnormality or personality disorder: congenital or acquire condition of a person affecting the person’s emotional or volitional capacity.

Likely to engage in acts of sexual violence if not confined in a secure facility

Mental abnormality: mental condition affecting a person’s emotional or volitional capacity

Likely to engage in a predatory act of sexual violence

Behavioral abnormality: a congenital or acquired condition that affects a person’s emotional or volitional capacity Mental abnormality or personality disorder: emotional or volitional capacity that renders the person so likely to commit sexually violent offenses that he constitutes a menace to the health and safety of others

Likely to engage in sexually violent acts

Evaluations for the Civil Commitment of Sexual Offenders

189

TABLE 8.1 Civil Commitment of Sexual Offenders: Statute Details by State (Continued) State

Standard of dangerousness

Nomenclature

Eligibility

Washington

Sexually Violent Predators

Convicted of or charged with a crime of sexual violence

Likely (defined as more probably than not) to engage in predatory acts of sexual violence

Wisconsin

Sexually Violent Persons

Convicted of, or adjudicated delinquent for, a sexually violent offense, not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness

Much more likely than not that the person will engage in acts of sexual violence

Qualifying disorders Mental abnormality and/ or personality disorder: a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit criminal sexual acts Mental disorder: a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence

Each of the four prongs will be reviewed, highlighting some of the more common issues faced by evaluators. In the next section, strategies for the evaluation itself are outlined and recommendations for empirically based evaluations are presented.

Components of SVP Statutes A Past Act of “Sexually Harmful Conduct” Each state statute (see Table 8.1) is specific to sexual offending, but states differ on the exact requirements for eligibility. Of the four prongs, this is the least likely to be an issue for you as an evaluator. A referral for evaluation will typically occur because the offender has committed an offense or offenses that meet the criteria established in this section of the statute. In other words, the evaluation is triggered by the determination that an offender has met at least this statutory requirement. It is helpful to be familiar with your state’s requirements as it establishes the population to whom you compare the examinee.

190

Rebecca L. Jackson and Henry J. Richards

As Table 8.1 demonstrates, variations exist in terms of : (a) language, e.g., sexual offense, sexually violent offense; (b) number of victims; and (c) adjudication of past sex crimes, e.g., charged vs. convicted, incompetent to stand trial, not guilty by reason of insanity. Perhaps most important to the evaluator, states also differ on the types of sexual behavior covered under the law. As an evaluator, you will want to be familiar with the types of sexual conduct that qualify an individual for commitment. For example, exhibitionism is a qualifying behavior only in some states. Other states (e.g., Washington) exclude incest offenders from civil commitment.

A Current Mental Disorder or Abnormality Psychotic disorders are most often present in individuals who are found incompetent to stand trial, not criminally responsible, or subject to civil commitment due to imminent threat of harm to self or others. In contrast, psychotic disorders are rarely seen among civilly committed sex offenders (Becker, Stinson, Tromp, & Messer, 2003; Vess, Murphy, & Arkowitz, 2004; Zander, 2005). Significant differences exist between the mental disorder requirement in SVP laws compared to both criminal statutes (CST and insanity) and traditional civil commitment. All states require some sort of mental disorder or abnormality to be present for an individual to be eligible for commitment; yet, the definition of mental disorder is broadly construed. In most states employing SVP laws, mental abnormality is defined as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexual violent acts.” As you can see, this definition is sufficiently broad that little is left out. In addition, this definition of mental abnormality is unlike any definition of mental disorder found in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR; APA, 2000). Beyond this definition of mental abnormality, some states also explicitly allow personality disorders (e.g., Florida, Washington) or sexual disorders (e.g., Minnesota, North Dakota). In such cases, the connection to psychological disorders within the DSM-IV is more apparent. The much more vague “mental disorder,” “mental abnormality,” and “behavioral abnormality” provide evaluators with less guidance in conducting their examinations. Note that part of the definition of mental abnormality includes the predisposition to commit sexual violence. In other words it requires some lack of control on the offender’s part. Neither DSM definitions of mental disorder nor diagnostic criteria for specific disorders require an impairment in volitionality. The next section more fully reviews the issue of volitionality. Although no disorders are explicitly excluded from consideration, some disorders are much more likely than others. Certain disorders lend themselves more readily to SVP cases. The most obvious qualifying disorders are the paraphilias. Indeed, Becker et al. (2003) reported that the most common disorders among a sample of civilly committed sex offenders are paraphilias. Our own research in the state of Washington replicates the trend, with the most common disorder being pedophilia, followed closely by antisocial personality disorder, and substance abuse disorders (Jackson & Richards, 2007). The paraphilias are the most likely disorders to qualify for “disorders” or “abnormalities” for the purposes of civil commitment. Within the paraphilias, pedophilia and nonconsent paraphilia are the most common. Although not an official diagnosis

Evaluations for the Civil Commitment of Sexual Offenders

191

in the DSM-IV, nonconsent paraphilia (usually noted as Paraphilia NOS [nonconsent] or Paraphilia NOS [rape]) is commonly used by clinicians to indicate an individual who has demonstrated a preference for, or has engaged in, nonconsensual sex. Paraphilias indicated by noncontact sex offenses (such as exhibitionism, voyeurism) are less common as primary disorders (and would be disallowed in some states as qualifying disorders) but are often comorbidly present (Becker et al., 2003). Only one state (Texas; Bailey, 2002) specifically mentions psychopathy and requires an assessment of psychopathy as part of a precommitment evaluation (Texas Health and Safety Code, 1999). High levels of psychopathy, however, are quite common among civilly committed sex offenders (Vess et al., 2004). As reviewed in the Vitacco and Neumann chapter (this volume), psychopaths are more violent, criminally versatile, callous, and impulsive than their nonpsychopathic counterparts. In addition, psychopaths demonstrate less empathy and remorse than do others. Psychopathic traits combine to create a dangerous offender whose priority is to meet his own needs, regardless of the consequences. Related to, but not synonymous with, psychopathy is Antisocial Personality Disorder (ASPD). Among the DSM-IV personality disorders, Antisocial Personality Disorder is the most common in civilly committed sex offenders (Becker et al., 2003). Sreenivasan, Weinberger, and Garrick (2003) note that no statute explicitly excludes ASPD as a qualifying diagnosis; ergo, it is possible that an individual will qualify based on this alone. Whether ASPD diagnosis only is sufficient to provide the qualifying legal mental disorder for commitment is a matter of debate in the literature. Vognsen and Phenix (2004) argue cogently that ASPD on its own is insufficient to warrant civil commitment, but that a diagnosis of paraphilia must also be present. The central argument here is that a qualifying disorder must predispose the offender to commit acts of sexual violence. ASPD alone does not do this. The DSM-IV definition of ASPD does not include any criteria regarding sexual acts. Individuals with ASPD may be more predisposed toward criminal acts but not sexual acts, specifically. In other words, it fails to adequately distinguish the SVP from the “dangerous, but typical recidivist” as outlined in Hendricks (1997). A crucial component of a legal mental disorder is that it “predisposes the individual to commit acts of sexual violence” (Schopp, 1998; Schopp & Sturgis, 1995). What is legally significant in establishing this link is that it also establishes a legally significant decrement in volitional control. Offenders who have high actuarial risk but lack a legal mental disorder are presumed to be in the position of freely choosing to offend or to avoid reoffending. Thus, the law holds a deterministic view of the offender with a significant legal mental disorder (resulting in commitment and a treatment-oriented management of risk) and a free-will view for the offender who lacks a significant legal mental disorder (with the presumption that any future crime should be addressed within a just deserts model of punishment).

Nexus Between Mental Abnormality and Likelihood of Sexual Violence All SVP statutes require a nexus between the clinical condition (e.g., mental disorder or abnormality; personality disorder; sexual disorder) and ability to control behavior within a legal definition. Legal scholars (e.g., Janus, 1998; Schopp, 1998)

192

Rebecca L. Jackson and Henry J. Richards

have articulated the distinction between legal and clinical mental disorders. Legally, a disorder requires an impairment in volitional control (Schopp, 1998). The simple presence of a clinical disorder and lack of control is not sufficient; the key element is that the disorder causes the lack of control. Clinically, mental disorders require no such connection. The DSM-IV (APA, 2000) clearly states that a clinical diagnosis “is not sufficient to establish the existence for legal purposes of a mental disorder, mental disability, mental disease or mental defect” (p. xxiii). The DSM-IV continues by reminding clinicians that “having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time” (p. xxiii). However, it leaves unsaid whether a condition can make a future behavior more likely. It seems reasonable to suggest that some disorders do, indeed, make related behaviors more likely. Not unavoidable or absolute, only more likely. The challenge for the evaluator is to assess if the causal connection is sufficient to warrant commitment. In other words, how much volitional impairment is necessary under the law and how can we measure volitional impairment? The issue of degree of impairment was addressed in Kansas v. Crane (2002). Michael Crane, a convicted sex offender, argued that Hendricks required a complete lack of control of sexual impulses and behavior. He argued that, because he retained some control, he was ineligible for civil commitment. The Supreme Court disagreed and found that “serious”, but not complete volitional impairment, was required for commitment. Hendricks (1997) and Crane (2002) provided guidelines for the required impairment in volitionality. However, the Court purposefully avoided operationalizing the construct by suggesting that “safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules” (Crane, 2002, p. 868). Crane clarified that the statutes do not require a total lack of control, only a “serious difficulty” in controlling behavior (p. 868). In the absence of bright-line criteria, clinicians are faced with the challenging task of not only defining volitionality for themselves, but assessing it in dimensional terms. Investigators (e.g., Mercado, Schopp, & Bornstein, 2005; Rachlin, Halpern, & Portnow, 1984) have noted the complexity that the volitionality requirement adds to psycholegal assessments, including the complexity involved in assessing volitionality in its dimensional form. The clinician must struggle with the definition of “serious difficulty,” distinguishing it from “some” difficulty or “moderate” difficulty. What is clear from the statutes, coupled with the findings in Hendricks (1997) and Crane (2002), is that a mental disorder and high risk are not enough. The link between the two is the crux of the civil commitment. Without this link, the offender is more suitable for criminal punishment rather than civil commitment. The Washington courts have also addressed the issue of volitionality with In re Thorell (2003). They reiterated that Crane required a serious difficulty controlling sexually dangerous behavior, but rejected the claim that Hendricks or Crane required a separate finding of impaired volitionality. Instead, Thorell clarified that “a lack of control determination may be included in the finding of mental abnormality” (p. 376). In fact, Hendricks stated that “Hendricks’ diagnosis as a pedophile … thus plainly suffices for due process purposes.” Thorell further states: “What is critical to both Hendricks and Crane is the existence of ‘some proof’ that the diagnosed mental abnormality has an impact on offenders’ ability to control their behavior.

Evaluations for the Civil Commitment of Sexual Offenders

193

Crane requires linking an SVP’s serious difficulty in controlling behavior to a mental abnormality, which together with a history of sexually predatory behavior, gives rise to a finding of future dangerousness, justifies civil commitment, and sufficiently distinguishes the SVP from the dangerous but typical criminal recidivist. It is the finding of this link, rather than an independent determination, that establishes the serious lack of control and thus meets the constitutional requirements for SVP commitment under Hendricks and Crane.”( p. 736)

Thus, to the extent that Thorell may be observed in other jurisdictions, proof of difficulty in controlling behavior will continue to be necessary, but proving impaired control beyond that indicated by the disorder may not. In the absence of legal or clinical definitions of volitionality, a prudent course of action may be for the evaluator to inform the court in what ways the mental disorder interferes with behavioral control. A note of caution is required here. Paraphilias are perhaps most obviously related to sexual offending, yet evaluators should be aware of the potential difficulties in explaining this to the court. With the revision to the DSM-IV-TR, paraphilia may now be diagnosed based upon committing the behavior (Hilliard & Spitzer, 2002). The logic becomes tautological. Using pedophilia as an example, a man offends against children because he is a pedophile (mental disorder causing the behavior). He is a pedophile because he sexually offends against children (see also Miller et al., 2005). To the extent that Thorell is adopted, the danger becomes that some evaluators will base their conclusions on past behavior and may not adequately seek or consider current characteristics and behavior supporting the presence of an existing mental disorder, thus violating the spirit of civil commitment laws.

A Finding of “Risk of Future Sexually Harmful Conduct” As discussed in the Violence Risk Assessment chapter, the practice of risk prediction in psychology and psychiatry has evolved tremendously since early condemnations of its accuracy (see, e.g., Monahan, 1981). Because the purpose of civil commitment laws is to prevent high-risk individuals from committing further sexually violent offenses, rather than punishing them for violence already committed, the ability to estimate future risk is integral to SVP evaluations. Actuarial predictors of future risk are the most commonly used and empirically supported methods employed for estimation of risk (Doren, 2002). Further, the Association for the Treatment of Sex Abusers (ATSA; 2001) recommends their use in SVP evaluations with populations for whom the instruments have been validated (typically adult male sex offenders). The most common actuarial instruments (e.g., Static 99) include static variables, i.e., those historical variables that do not change over time, such as criminal history and gender of victims. More recent research in sex offender recidivism has found several dynamic variables to be indicators of increased risk (Hanson & Morton-Bourgon, 2005). The use of dynamic risk factors in estimating risk in SVP evaluations presents a challenge. Dynamic variables, by definition, can change over time. SVP evaluations require an estimate of risk over the offender’s lifetime. Because the goal is a stable estimate of risk, stable indicators of that risk are required. It is possible, however, that dynamic changes, such as successful completion

194

Rebecca L. Jackson and Henry J. Richards

of treatment, may alter an offender’s static risk (Miller et al., 2005). Before adopting dynamic risk factors for pre-commitment evaluations, research must demonstrate that change in dynamic factors does indeed change recidivism rates (e.g., sex offender treatment decreases recidivism), and also that the change remains over the offender’s lifetime (e.g., treatment gains are not lost over time). Until that time, dynamic risk factors, and instruments that employ them, are more appropriate for treatment progress tracking and community management of released offenders than they are for initial precommitment evaluations. Estimating risk within the context of SVP evaluation encompasses three distinct considerations. First, the risk must be of a statutorily defined likelihood. Second, the risk must be of sexual violence specifically, not general violence. Finally, as noted above, the type of violence must be included in the statue. First, states vary regarding the standard of dangerousness needed to meet statutory criteria. Many states require that an individual be “likely” to commit future acts of sexual violence. Others use the more stringent “more likely than not” (see Table 8.1). The more likely than not criteria seems reasonably analogous to a greater than 50% chance. However, no such “logical” definition of likely exists. It seems reasonable to suggest that it is something less than 50%, but greater than 0, although this may be left up to the evaluator or the trier of fact (judge or jury). When familiarizing yourself with your state’s law, be sure to read it in its entirety. Definitions often appear embedded in the statute that clarify the language put forth in the statute proper. For example, Washington’s law requires that the offender be “likely” to commit predatory acts if not confined in a secure facility. “Likely” is further defined in the statute as meaning “more likely than not.” The evaluator will also need to be cognizant of the relevant case law that may further clarify the meaning of these probability descriptors within a given jurisdiction. Secondly, the type of violence must be sexual in nature. A finding, even that the individual is 100% likely to commit some sort of violence (even if that were possible) is not sufficient. The risk must be specific to sexual violence. Actuarial measures that have been developed for risk assessment purposes differ on the type of violence they predict. As will be discussed in Part II of this chapter, a few well-validated instruments exist for aiding in sexual violence prediction. It is a non sequitur to employ measures that predict general violence and interpret their findings as being relevant to sexual offending in particular. Beyond being at risk for sexual violence, the offender must be at risk of committing the type of violence the state has established as relevant. This requirement is related to the above discussion around qualifying disorders. For example, are noncontact offenses allowable in your state? If not, then even a 100% chance of future exhibitionism will not qualify. Beyond qualifying behavior, this is important in regards to the type of actuarial instrument you may choose and how you interpret that instrument. For example, the MnSost-R (Epperson et al., 2003; an actuarial measure designed to predict sexual recidivism) was developed and validated on extrafamilial child molesters and adult rapists. It would not be appropriate to use this measure when evaluating an incest offender. Similarly, instruments that included all types of sexual offenses in their validation samples (ranging from obscene phone calls to forcible rape) may be insufficient to gauge a person’s risk for the degree or type of violence required by any given statute.

Evaluations for the Civil Commitment of Sexual Offenders

195

Many states adopt the notion of “predatory” violence as an inclusion criterion for civil commitment. Because the concept of predatory violence does not have a clinical meaning, behaviors meeting the definition of predatory are statutorily defined. For example, in Washington State, predatory refers to relationships that are established or maintained for purposes of sexual exploitation. Therefore, sexual abuse or assault within preexisting relationships, such as marriages or biological family relationships, are excluded from the statutory definitions of predatory sexual violence. Within certain parameters, states are free to define the sexual behaviors of interest. As with other psycholegal statutes, it is imperative to understand the language used in the jurisdiction in which you practice. The use of actuarials requires the ability to accurately interpret the instruments and communicate their results. As discussed more fully in the Violence Risk Assessment Chapter (Jackson & Guyton, this volume) estimates of risk derived from actuarial measures must be interpreted and communicated with care. For example, actuarial instruments typically estimate an offender’s risk in terms of risk category, such as low, medium, and high. No clinical or legal criteria have been established to translate the results into legally meaningful estimates. The evaluator must still render a judgment whether an individual who is medium-high on a risk assessment instrument meets the state’s “likely” or “more likely than not” risk criterion. Even when associated percentages are included (e.g., 30% of offenders in this risk category reoffended over the 10-year follow-up), evaluators must judge associated “likelihood” as defined in the statute, and also recognize that their risk assessment task is over the offender’s lifetime, not only the 10-year follow-up captured by the instrument. An additional unanswered question is whether actuarial instruments underestimate risk for SVP evaluees. Because SVP respondents typically have a longer and more serious criminal history than individuals in the developmental samples, it is argued that they actually represent a different population than those sex offenders on whom the instrument was developed. Despite these cautions regarding actuarial procedures, their use is overwhelmingly preferred over unstructured risk assessments (ATSA, 2001). Yet, a vocal minority of practitioners (Berlin, 2003; Campbell, 2003) raise serious concerns regarding their use. Although beyond the scope of this chapter to fully explore each of the concerns, evaluators are obliged to understand the issues involved and adequately explain their choices of instruments to the court if need be. Several comprehensive reviews of available risk assessments and their utility in SVP evaluations are available (Barbaree et al., 2001; Campbell, 2000; Conroy, 2002; Doren, 2002; Hanson, 1998; Hanson & Thornton, 2000; Hart, 2003; Hoberman, 1999; Quinsey et al., 1998; Rice & Harris, 1997; Sreenivasan, Kirkish, Garrick, Weinberger, & Phenix, 2000).

Part II: Evaluation A critical issue for public policy and professional practice is whether Sexually Violent Predator commitment is an empirically-validated determination. Morse (1998) and Schopp (1998) have questioned its validity as a legal construct, noting that it blurs the

196

Rebecca L. Jackson and Henry J. Richards

line between criminal and civil commitment. Other psychologists (e.g., Campbell, 2004) believe civil commitment laws for sex offenders are unjust. Clinicians involved in forensically relevant evaluations attempt to apply the legal standard as it is written (Heilbrun, Rogers, & Otto, 2002; Rogers & Ewing, 1989). Importantly, they do not evaluate the morality or utility of the law. Even still, some clinicians will choose not to become involved in civil commitment evaluations because they seemingly conflict with their personal and professional values. The central issue for those choosing to conduct SVP evaluations is how to conduct the most empirically sound assessment. For a very comprehensive discussion of the evaluation process, as well as a cogent argument for conducting evaluations despite dissenting beliefs, the reader is referred to Doren (2002; p. ix–x). With the increase in sexually violent predator statutes, the implications of being labeled a sexually violent offender rather than simply a dangerous offender are considerable. Importantly, the constitution forbids ex-post facto legislation, meaning that an individual cannot be committed as an SVP simply because he has committed a sexually violent crime in his past. Past behavior can, however, be admitted as evidence in predicting future violent behavior. Therefore, the onus is on the courts, aided by mental health professionals, to determine which offenders with sexually violent crimes in their history are likely to be sexually violent again. As Janus and Nudell (2000) argue, “The testimony of clinical psychologists is given great weight in sex offender commitment proceedings and the accuracy and reliability of their testimony is of paramount importance to the correct resolution of the case” (p. 13). Second-generation commitment statutes require the individual to undergo an evaluation. The nature of these evaluations is not well articulated but each calls for a determination that the individual (respondent) is at increased risk for committing sexual violence, and that this risk is connected to a mental disorder, abnormality, or personality disorder. Although these statutes provide for the final determination to be made by the court, the role of the mental health professional is integral. These legal determinations are informed by mental health professionals’ findings. Few professional standards exist to guide SVP evaluations. The Association for the ATSA has published a statement regarding SVPs, only a small portion of which directly pertains to the evaluation process (see section on risk for future violence). Although more comprehensive guidelines for SVP assessments have been developed (see Doren, 2002), they have not been published or adopted by any professional body or organization. The American Psychiatric Association has publicly denounced the practice of civil commitment for sex offenders and, therefore, provides no guidance for psychiatrists engaged in their evaluation (Zanona, Bonnie, & Hoge, 2003). The American Psychological Association has taken no public stance on the laws. In the absence of more specific guidelines, the APA Specialty Guidelines for Forensic Psychologists (1991) remain applicable.

Preparing for the Assessment SVP evaluations have been conceptualized as a series of interrelated questions (Rogers & Jackson, 2005). Each question roughly corresponds to one of the four prongs of the laws: (1) A past act of sexually harmful conduct, (2) a current mental disorder

Evaluations for the Civil Commitment of Sexual Offenders

197

or abnormality, (3) some relationship between the mental abnormality and the likelihood of sexual violence, and (4) a finding of risk of future sexually harmful conduct. It is often helpful to organize your final report around these sections, fully answering one question before addressing the next.

The Evaluation Context and Approach Clinicians face a formidable task when they agree to conduct an assessment and offer testimony in a sexually violent predator evaluation. Similar to other referral questions, such as competency to stand trial and criminal responsibility, the expert is expected to understand the legal standard and apply it appropriately in his or her psychological evaluation and eventual testimony. The Specialty Guidelines for Forensic Psychologists (1991) clearly state that clinicians must be “prepared to explain the relationship between their expert testimony and the legal issues” (p. 665). A common first step in forensic assessment is to gather relevant records and potential collateral sources. The universe of relevant information is often quite large as the evaluator will want to review information regarding the respondent’s childhood, family, sexual, and criminal histories as well as psychological, treatment, and incarceration histories. These records will provide important data for both diagnostic and risk assessment purposes. In some cases, they will be the only information available to the evaluator, such as in the absence of a clinical interview. In other cases, they will be used to confirm or refute a respondent’s account given in the interview. Much more than is true for other psycholegal assessments, SVP evaluations are far reaching. Much more of the individual’s history and lifestyle are potentially relevant. One caution deserves mention here. Reviewing such a large number of documents virtually guarantees that the examiner will review information that he she finds appalling or, alternatively, information that makes him or her overly sympathetic to the respondent. Esses and Webster (1998), Lynett and Rogers (2000), and Jackson, Rogers, and Shuman (2004) have all demonstrated the biasing effect that emotionally provocative information has on forensic decision making. One suggestion for combating this potential bias is to score the actuarial instrument(s) you will use during this initial portion of the evaluation. Jackson et al. (2004) demonstrated that “anchoring” assessments with actuarial information may protect the examiner against the biasing effects of emotionally powerful information.

Clinical Interview The Specialty Guidelines for Forensic Psychologists (1991) state that, “forensic psychologists avoid giving written or oral evidence about the psychological characteristics of particular individuals when they have not had an opportunity to conduct an examination of the individual adequate to the scope of the statement, opinions, or conclusions to be issued.” At times, the respondent will decline to participate in the interview. Absent the opportunity to interview, forensic psychologists “make clear

198

Rebecca L. Jackson and Henry J. Richards

the impact of such limitations on the reliability and validity of their professional products, evidence, or testimony” (p. 663). The reasons that respondents may or may not participate in an interview are innumerable and no particular meaning should be interpreted from their acceptance or refusal. Benefits of conducting an interview include providing the respondent an opportunity to confirm or refute information garnered from his or her records; conducting a structured or semistructured interview for diagnostic purposes, including the Psychopathy Checklist- Revised (PCL-R; Hare, 2003); and gathering information from the respondent regarding current thoughts, feelings, fantasies and behavior relevant to the referral questions. A challenge in all forensic assessment is gauging the value of an examinee’s self-report. Research suggests that sex offenders are unreliable in their self-reports (Langevin, 1988; Rogers & Dickey, 1991; Sewell & Salekin, 1997). Most notably, sex offenders are characterized by their denial, minimization, or externalization of blame (Kennedy & Grubin, 1992; Langevin, 1988). Kennedy and Grubin (1992) identified a number of different denial patterns common among sex offenders. Importantly, two of the four patterns identified were characterized by externalization of responsibility. These offenders acknowledged the offense, but attributed the cause of their behavior to an external force out of their immediate control (see also Sewell & Salekin, 1997). These studies are directly relevant to SVP evaluations in that behavioral control is a central referral question. Importantly, an astute examinee will recognize that such admission is tantamount to announcing his eligibility for commitment.

A “Past Act of Sexually Harmful Conduct” As discussed previously, this requirement is statutorily defined. As an evaluator, you will typically not need to make a determination regarding whether this requirement has been met. Instead, the following discussion will focus only on the additional three components of the statutes. Current Mental Disorder or Abnormality The first question is: Does the respondent suffer from a mental disorder or abnormality (as defined by the relevant statute)? Record review is often helpful in this regard to gather a history of psychiatric diagnosis and treatment, as well as providing a history of antisocial and sexual behavior that will be useful in assessing the possibility of antisocial personality disorder and the paraphilias. Provided the respondent agrees to a clinical interview, most mental disorders can be assessed reliably through the use of structured and semi-structured interviews for Axis I and Axis II disorders (see Rogers, 2001 for a comprehensive discussion of diagnostic and structured interviews). The Psychopathy Checklist–Revised (PCL-R; Hare, 2003) should also be administered to assess the various personality traits and behavior associated with this disorder. Although the PCL-R can be scored without the benefit of an interview, the recommended method of administration includes a clinical interview.

Evaluations for the Civil Commitment of Sexual Offenders

199

Perhaps of paramount importance for SVP evaluations is a comprehensive assessment of the paraphilias. Few standardized approaches exist for assessing the various sexual disorders (Miller et al., 2005). Several diagnostic issues make the systematic evaluation of paraphilias imperative. First, research suggests that during the use of unstructured interviews, clinicians will often cease their diagnostic inquiry (Rogers, 2001). Yet, our own research in Washington State suggests that the typical SVP has more than one paraphilia (Jackson & Richards, 2007). Important diagnostic data will be missed if diagnostic inquiries are prematurely terminated. Secondly, clinicians tend to over-rely on unique or sensational data (Borum et al., 1993). A particularly heinous sexual offense may bias the clinician in favor of a related diagnosis, or alternatively, overshadow less salient yet still meaningful data. The related issues of confirmatory and hindsight bias (Borum et al., 1993) reinforce the need for comprehensive and structured assessments. Evaluators are encouraged to conduct a systematic evaluation of all the paraphilias. In addition to interviewing the respondent, evaluators may be inclined to administer self report inventories or other psychological tests for information regarding psychopathology, including the paraphilias. In general, multiscale inventories do not provide enough additional information to warrant their use. For example, administering the MMPI-2 will provide information regarding the respondent’s antisocial tendencies (Scale 4). However, its 566 items and eighth-grade reading level suggests this information could be more parsimoniously gathered elsewhere. Self-report inventories regarding the paraphilias also exist. Two such measures, the Multiphasic Sex Inventory-II and the Clarke Sex History Questionnaire, are commercially available. Both tests allow for the assessment of psychosexual functioning, deviant, and illegal behavior. Unfortunately, the MSI-II may have more face validity for the assessment of SVPs than is currently borne out by the research. The handbook is self-published by the authors. The normative data for this instrument is not available for inspection by the evaluator; there are very few well defined studies regarding its reliability and validity. Particularly weak in this regard are the response style scales and those that measure sociopathy, aggression, and violence. Although some offenders may be more likely to endorse behaviors they view as socially unacceptable in a paper-and-pencil questionnaire such as the MSI-II and Clarke Sexual History Questionnaire, in most cases, in the context of SVP evaluations, inventories and tests with specific sexual conduct items such as the MSI-II are most useful as an adjunct to a good clinical interview and analysis of the clinical and criminal records, particularly accounts of offense conduct. Physiological assessment (i.e., plethysmography and polygraphy) is also sometimes used in SVP evaluations. Plethysmography (PPG) and polygraphy are often used as adjuncts in treatment programs, but their utility for diagnostic assessment is less established. They are time-intensive, costly, require trained technicians who have no vested interest in the outcomes of the tests, and results are too often inconclusive to be recommended as a staple in an assessment battery. In addition, research suggests that PPG can be successfully faked (Marshall & Fernandez, 2000). Psychophysiological assessment studies using clinical samples are plagued by the absence of a gold standard regarding truthful statements and sexual interest/arousal. These comments

200

Rebecca L. Jackson and Henry J. Richards

notwithstanding, positive findings on psychophysiological tests, especially if these are confirmed on a second or multiple occasions, support the presence of the symptomatic arousal patterns in question. Although some would hold that it is inherently unfair to count positive test findings more than inconclusive or negative findings, others view these methods from a technical perspective and interpret the results accordingly—that is, as methods having acceptable positive predictive power (PPP) and low to unacceptable negative predictive power (NPP). Connection Between Mental Abnormality and Risk Kansas v. Crane (2002) established the standard for volitional impairment as “serious difficulty” controlling behavior. The issue of volitionality—both what it is and how to measure it—remains controversial in psychology (Mercado, Schopp, & Bornstein, 2005). No consensus exists regarding a definition of volitional impairment. Likewise, no assessment measure or technique exists to assess this nebulous construct. Several alternatives exist in conceptualizing volitional control, with most relying heavily on clinical judgment. In the absence of a Thorell-type decision (which suggests the presence of a parpahilia also satisfies the volitional prong) or a clearer legal definition of volitionality, evaluators may address volitional impairment from multiple perspectives. Three alternatives will be discussed below: serious Axis I illnesses, such as psychotic disorders; personality disorders; and impulsivity. In rare cases, volitional impairment may result from a serious Axis I disorder, such as a psychotic disorder. Similar to the volitional prong in some insanity standards, the uncontrollable impulse test, a psychotic disorder or other mental disorder may affect the willful commission of an act (see Rogers, this volume). Unlike insanity cases, however, no criterion exists that the impulse in question must be uncontrollable, only that the individual has “serious difficulty” in controlling it. Volitional impairment due to serious mental illness is likely to affect only a small portion of SVPs. Vess et al. (2004) reported that only approximately 10% of the individuals in California’s SVP program suffered from a psychotic or major affective disorder, compared to over 90% of traditional forensic commitments. Personality disorders, including psychopathy, can also provide evidence of impaired volitional control. For example, in an individual who has already demonstrated the propensity to sexually act out, traits of antisocial personality disorder, such as a disregard for social norms and a lack of empathy, may contribute to the likelihood of his committing another sexual offense. In addition to APD and psychopathy, traits associated with several other personality disorders may be relevant in SVP evaluations. Borderline Personality Disorder implicitly includes the concept of cyclical instability of emotion, thought, and interpersonal conduct. This kind of predictable instability can be interpreted as prima facie evidence of volitional impairment. Narcissistic Personality Disorder traits of entitlement, reduced empathy, and expectation of positive outcomes may impede or delay the implementation of relapse prevention strategies. Traits of Avoidant Personality Disorder may contribute to avoidant behaviors that reinforce identification with child victims in the case of pedophiles. Because no disorder is explicitly excluded from being a qualifying disorder, the evaluator must be careful to explain to the court how—that is, in what ways—the diagnosed disorder impairs the individual’s ability to control his or her sexual behavior.

Evaluations for the Civil Commitment of Sexual Offenders

201

Impulsive sex offenders are at a much higher risk of sexual recidivism than nonimpulsive offenders (Prentky et al., 1995). Likewise, Hanson and Morton-Bourgon (2005) found that general self-regulation deficits, including indices of impulsivity, are related to increased recidivism among sex offenders. Several indices of impulsivity and self-regulation deficits are included within an SVP evaluation. For example, the PCL-R includes an item measuring impulsivity. Indeed, Factor 2 of the PCL-R has been considered a general self-regulation factor (Hanson & Morton-Bourgon, 2005). Behavioral and lifestyle impulsivity measures may provide important information to the court regarding an offender’s ability to modulate his behavior in the future. Recent research suggests that several deficits presented in this section may have underlying neuropsychological origins. Gross prefrontal cortex damage and abnormal temporal lobe functioning have long been associated with impulsive and compulsive sexual offenses (Cummings, 1999). Frontal lobe dysfunction, particularly orbitofrontal injury, is associated with increased aggression and aggressive dyscontrol (Brower & Price, 2001). Recent neuropsychological investigations have begun to link more subtle functional impairments with impulsivity and sexual behavior. Of particular interest are studies examining behavioral self-regulation among psychopaths (Blair, Mitchell, & Leonard, 2004; Patterson & Newman, 1993; Newman & Kosson, 1986; Wallace, Vitale, & Newman, 1999). Advances in neuropsychological research will likely continue to add to this knowledge base. Too little is currently known, however, to draw conclusions with enough certainty to be offered in a court of law. A Finding of Risk of Sexually Violent Conduct The use of actuarial estimates of risk has been established as the standard of practice for SVP evaluations (ATSA, 2001). Furthermore, state statutes may require the use of actuarial measures as well. For example, Virginia’s code requires the use of the RRASOR or a “comparable, scientifically valid instrument.” The most common actuarial instruments used in civil commitment evaluations are outlined below. Information provided here was current as of the writing of this chapter. However, sex offender recidivism and risk assessment is an active area of research, with several new articles being published each year. Students and practitioners are encouraged to attend conferences and stay current with the literature to ensure most up to date information and practice. As of this writing, the most commonly used and best validated actuarial measures for assessing sexual recidivism risk are the Static-99, RRASOR, and MnSost-R. In addition, the Sexual Violence Risk-20 (SVR-20) is a structured clinical judgment assessment designed to estimate the degree of sexual offense risk. The VRAG, SORAG and HCR-20 are also sometimes used in SVP evaluations. However, as outlined in the Violence Risk Assessment chapter and reviewed above, these measures were designed to predict general violence and, therefore, in the more circumscribed SVP evaluation they must be interpreted through case formulation in a way that provides the needed link from risk for general violence to risk for sexual violence. Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR; Hanson, 1997). Hanson developed the Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR; Hanson, 1997) solely to predict sexual reoffending. Using data later published in a meta-analysis of over 20,000 sex offenders (Hanson & Bussiere, 1998), Hanson (1997) identified four variables with a minimum correlation of .10 with sexual recidivism. He developed a brief

202

Rebecca L. Jackson and Henry J. Richards

actuarial scale consisting of: (a) prior sex offenses, (b) any unrelated victims, (c) any male victims, and (d) age < 25 at the time of the risk assessment. Across seven developmental samples, comprising a total of 2,592 sex offenders, Hanson found that RRASOR scores had an average correlation of .27 with sexual recidivism. In a large cross-validation sample of 1,400 sex offenders in Sweden, Sjostedt and Langstrom (2000) found that the RRASOR had a correlation of .22 with sexual recidivism. Robust Area Under the Curve (AUC) estimates have been reported (e.g., .75 for sexual recidivism; Seto, 2005). Static 99 (Hanson & Thornton, 1999). The Static-99 (Hanson & Thornton, 1999) augmented the RRASOR with items from the Structured Anchored Clinical Judgement Scale (SACJ; Grubin, 1998). Hanson combined the scales to test whether this would lead to better prediction ability than either scale by itself. The resulting scale was called the Static-99 because all the variables were static in nature, and the most recent version was developed in 1999.1 Barbaree, Seto, Langton, and Peacock (2001) tested the relative effectiveness of several actuarial techniques in predicting violent behavior. These authors employed the use of the VRAG, RRASOR, and Static-99 to predict violence and sexual violence among a sample of 215 sex offenders released from prison. Additionally, the authors tested the Sex Offense Risk Appraisal Guide (SORAG; Rice & Harris, 1997). Results indicated that the VRAG and the SORAG performed equally well in predicting any reoffense (AUCs = .77 and .76, respectively). The RRASOR outperformed the other actuarial instruments in the prediction of sexual reoffending. However, the inconsistency of the RRASOR across samples was troubling. Hanson and Thornton (1999) and Barbaree et al. (2001) reported virtually identical AUCs for the Static-99 in predicting sexual recidivism (.71 versus .70). In contrast, the RRASOR showed much more variability across samples, with an average AUC of only .68 in Hanson and Thornton and a large .77 in Barbaree et al. Several more recent studies confirm that the Static-99 performs similarly to the SORAG and on par or greater than the RRASOR (Bartosh, Gargy, Lewis, & Gray, 2003; Harris et al., 2003). Minnesota Sex Offender Screening Tool–Revised The MnSost-R (Epperson, Kaul, Huot, Goldman, & Alexander, 2003) is a revised version of the Minnesota Sex Offender Screening Tool. Its sixteen items are largely historical in nature, yet it also includes three more changeable (i.e., dynamic) items that reflect institutional adjustment and treatment history. Scores on the MnSost-R above 8 are considered indicative of high risk. The authors recommend referral for civil commitment for offenders scoring 13 or higher. Initial research suggests it predicts sexual recidivism fairly well. AUCs for the development and validation samples were .77 and .73, respectively. The MnSost-R has not yet been subjected to multiple replications. The MnSost-R was developed for use with adult rapist and extrafamilial sex offenders. Epperson et al. (2003) reported initial analyses demonstrated that an earlier version of the MnSost showed little utility in predicting intrafamilial sex offender recidivism. The relationship between risk factors and recidivism appears to be quite different in this population. Therefore, incest offenders were excluded from the developmental sample of the MnSost-R. The resultant measure, therefore, is inappropriate for use with individuals who are exclusively incest offenders. The MnSost-R has yielded fewer published validation studies than the RRASOR and the Static-99.

Evaluations for the Civil Commitment of Sexual Offenders

203

Initial reports are mixed (Barbaree et al., 2001; Bartosh, Garby, Lewis, & Gray, 2003). Several unpublished reports have supported its validity. However, peer-reviewed research demonstrating replication is necessary. The Sexual Violence Risk-20 (SVR-20). The Sexual Violence Recidivism-20 (SVR20; Boer et al., 1997), a version of the HCR-20, was developed specifically for use with sex offenders. In constructing the SVR-20, the authors attempted to identify risk factors that are empirically related to future sexual violence, clinically useful, yet parsimonious. For the purposes of the SVR-20, the definition of sexual violence is “actual, attempted, or threatened sexual contact with a person who is nonconsenting or unable to give consent” (Boer et al., 1997, p. 328). This broad definition of sexual violence includes rape, sexual touching, exhibitionism, obscene letters or phone calls, distribution of pornography, voyeurism, and theft of fetish objects. Clinicians conducting SVP evaluations should question whether this wide array of acts is relevant within their state’s definition of sexual violence. This overly broad definition of sexual violence may have implications for its predictive validity, particularly the number of false positives and especially as it relates to its usefulness in making determinations about sexually violent predator commitments. The items chosen for inclusion for the SVR-20 were derived through a review of the literature on sex offenders. Special attention was given to factors that discriminate between sexual and nonsexual offenders and on those associated with recidivistic violence or sexual violence in sex offenders. Many clinicians use the SVR-20 as a structured guide for collecting relevant information, which is what the measure was intended to do. In the absence of supporting data (Sjostedt & Langstrom, 2002), decisions regarding likelihood of risk based solely on the SVR-20 are probably inappropriate. Choosing Among or Combining Actuarial Risk Scales Several evaluators recommend using multiple actuarial measures to assess risk (Doren, 2002; Lacoursiere, 2003). However, Seto (2005) demonstrated that no tested means of combining actuarial estimates provided a better prediction than simply using the best validated measure. Sex offenders are not a homogenous group of offenders. Even at the most basic categorization, rapists vs. child molesters, offenders are likely to differ on many dimensions that are potentially related to risk for recidivism (e.g., level of psychopathy, base rates of recidivism, sexually deviant interests). A recent trend in the literature has investigated the possibility that the risk assessments measures may have differential utility with different subgroups of offenders (Bartosh et al., 2003; Roberts, Doren & Thornton, 2002; Craig, Browne & Stringer, 2004). In contrast, Hanson & Thornton (2000) and Sjostedt & Langstrom (2001) found no such difference. Roberts et al. (2002) proposed two pathways by which offenders are at risk for recidivism, sexual deviancy and antisocial tendencies (see also Hanson & Bussiere, 1998). Roughly speaking, the sexual deviancy dimension is more likely among pedophiles, with rapists more likely to be high on the antisocial dimension. An open question is whether certain actuarial instruments may have more or less utility, depending upon the victim type of offender. Furthermore, simple dichotomies of victim preference may be less applicable to SVP populations than other groups of sex offenders.

204

Rebecca L. Jackson and Henry J. Richards

Evaluators are urged to stay current with the advances in risk assessment research and be prepared to explain and defend their choice of measures and methods. Case Example A 60-year-old white male was referred for civil commitment evaluation under a state’s SVP statute five years after the initial finding of probable cause and his postsentence detention. His convictions and prison sentences were for indecent liberties with a child in the 1980s and again in the 1990s for rape of a child (one count) and child molestation (four counts). The offenses involved gifts and money payments to girls under the age of 15 for either masturbation of the offender or receiving and performing oral sexual contacts. One of the victims was his own daughter, although this offense did not contribute to the state’s predatory crime criterion. Although none of the qualifying offenses involved physical violence, the offender had been convicted of stabbing an adult female in the early 1980s in an offense that was sexually motivated, and he had a reputation for making threats of extreme physical violence as a means of collecting financial debts. The detainee met the state SVP statute criminal offense prong related to crimes of sexual violence, in that he had clearly been charged and convicted with predatory sexual offenses against children. In assessing whether the offender met the mental abnormality prong, the evaluator performed a careful record review, compiling a history of previous diagnostic impressions, documented behaviors, and self-reported symptoms related to mental disorders, particularly paraphilias and personality disorders. File data related to the 20 items on the Hare Psychopathy Checklist Revised (PCL-R) was compiled. The offender at first refused and later agreed to be interviewed, based on his attorney’s recommendation prior to being court-ordered to participate. He proved to be a highly unreliable informant, with many of his statements contradicted by the record of his offenses and his previously documented statements. Although he had never married, he admitted to many live-in relationships with women and periods of frequent sexual contact with prostitutes. He denied alcohol or drug problems, and lacked a history of drug- or alcohol- related offenses, with the exception of one DUI. Alcohol problems had been indicated in several previous assessment reports, but the basis for this was poorly documented in these records. His childhood and teenage years were virtually without documentation, and no juvenile offenses were identified. His presentation in the mental status examination was consistent with previous intellectual testing in prison indicating average intelligence and the absence of any sign of gross neurological or cognitive impairment. He exhibited full range of affect during the interview with a mood that was fairly flat, if not somewhat melancholy and selfpitying. His dominant attitude toward the interview was one of detachment and mild curiosity. Although his affect was consistent with the content of discussion, he was more emotionally labile and volatile that most offenders, alternating quickly from frustration and irritability to sadness and curiosity. When asked about his view of the effect of the molestation on his daughter, he exhibited an intense, but fleeting, expression of anguish and “guilt,” but quickly shifted the subject to unrealistically idealistic plans for his future conduct, which was accompanied by an expansive mood. His score on the PCL-R after prorating for several items that were not scored due to insufficient information was 27.5, a score that is higher than 67.3% of offenders in the test manual’s male offender reference group. The PCL-R has a standard error of measure of 3 points. Therefore, the offender’s true score can be estimated to range from 24.4 to 30.5. The evaluator did not find evidence of a history of juvenile offenses that would have

Evaluations for the Civil Commitment of Sexual Offenders

205

corroborated the diagnosis of Antisocial Personality Disorder, which had been previously attributed to him by an evaluator within the state correctional system. His lifelong pattern of criminality, deception, violence, and interpersonal and emotional instability were not related to an Axis I mental disorder and were severe enough to meet the general criteria of personality disorder. The specific personality disorder diagnosis supported by his history and interview behavior was Personality Disorder NOS, with Antisocial (Psychopathic) and Borderline traits. Despite his history of sexual involvement with adult females and his denial of specific attraction to children, his offense history—combined with his attempt to place several underage girls unrelated to him on his prison visiting list while serving time for crimes against girl victims—supported a paraphilia diagnosis of pedophilia female, nonexclusive type. The symptoms of interpersonal and emotional instability, deception, failure to cooperate with supervision, and deviant attraction to minor females related to his paraphilia and personality disorder diagnoses appeared to contribute to this offender’s ongoing risk to reoffend against minor females. He thus met the mental abnormality and causal link to risk prongs. Actuarial measures were used to determine if the offender’s risk was high enough to meet the state’s requirement that he be “more likely than not” (interpreted in case law to mean greater than 50% risk) to reoffend over his remaining lifespan. His VRAG score of 8, category 6, indicating a 58% risk of a new violent offense within 10 years. His SORAG indicated a 58% risk within 7 years. The Static 99 score indicated a lower risk of only 36% within 15 years. His MSOST-R score suggested a risk of 70% within 6 years. Although these instruments often converge on a level of risk, there is no widely recognized method for resolving or choosing among discrepant results. Clearly, none of the instruments applied were designed to address the issue of lifelong risk for sexual offending. A strategy designed to optimize public safety, the “believe the worst strategy”, would suggest that his actuarial risk was at least 70%, whereas a civil liberties emphasis reflected in a “believe the good strategy” would suggest a risk floor of only 36%. Averaging rates across scores would result in an inexact estimate; such an average would be over the 50% risk required for commitment, but there is no clear rationale to justify averaging in this manner, especially as other instruments could have been administered, resulting in a different average. In addition to actuarial estimates of risk over several discrepant intervals, the evaluator considered the detainee’s age (60) as an important factor that might suggest a lower risk than a more youthful offender with similar characteristics. Nonetheless, the individual in question was of good health. He had had also refused to engage in treatment for any extended period, and tended to minimize all of his crimes and their impacts on others, with only a fleeting acknowledgement of the possible negative impact of his sexual exploitation of his daughter. In light of his denial and minimization, his good health, his persistence in signs of pedophilic interest during incarceration, the evaluator opined that the offender’s risk was, over the course of the lifespan, at least 51%, and that his disorders were significant contributors to his future risk.

Summary This chapter has provided an introduction to civil commitment laws for sex offenders and provided an overview of the assessment process. We focused on the initial precommitment evaluation because they present the majority of the assessment

206

Rebecca L. Jackson and Henry J. Richards

challenges the evaluator is likely to face. Precommitment evaluations are not the sole issue within civil commitment laws. Periodic reviews of SVPs are often written into the statues, requiring an evaluation of treatment progress and conclusions regarding whether the respondent continues to meet commitment criteria. Although the psycholegal standard remains the same, the evaluator must assess any treatment gains achieved, such as improvements in self-regulation or a reduction in sexually deviant interests. In addition, nontreatment issues may also alter an individual’s risk to reoffend, such as increasing age or failing health. The issues involved in periodic reviews are not trivial, yet space limits our ability to adequately cover them in this chapter. Individuals involved in SVP treatment programs or in conducting civil commitments for sex offenders should familiarize themselves with these issues. Endnotes 1. The most recent coding rules for the Static 99 were established in 2003. The Canadian website of Public Safety and Emergency Preparedness (www.psepc-sppcc.gc.ca) is an excellent source of information regarding the Static 99, as well as sex offender recidivism in general. The Static 99 has been revised and the new instrument (i.e., Static 2002) is being tested at this time.

References American Psychiatric Association (2000). Diagnostic and statistical manual of mental disorders (text revision). Washington, DC: Author. Barbaree, H. E., Seto, M. C., Langton, C. M., & Peacock, E. J. (2001). Evaluating the predictive accuracy of six risk assessment instruments for adult sex offenders. Criminal Justice and Behavior, 28, 490–521. Bailey, R. K. (2002). The civil commitment of sexually violent predators: A unique Texas Approach. Journal of the American Academy of Psychiatry and Law, 30, 525–532. Bartosh, D. L., Garby, T., Lewis, D., & Gray, S. (2003). Differences in the predictive validity of actuarial risk assessments in relation to sex offender type. International Journal of Offender Therapy and Comparative Criminology, 4, 422–438. Becker, J. V., Stinson, J., Tromp, S., & Messer, G. (2003). Characteristics of individuals petitioned for civil commitment. International Journal of Offender Therapy and Comparative Criminology, 47, 185–195. Blair R.J.R., Mitchell, D.G.V., and Leonard, A. (2004). Passive avoidance learning in individuals with psychopathy: Modulation by reward but not by punishment. Personality and Individual Differences, 37, 1179–1192. Boer, D. P., Hart, S. D., Kropp, P. R., & Webster, C. D. (1997). Manual for the Sexual Violence Risk—20: Professional guidelines for assessing risk of sexual violence. Vancouver, BC: The British Columbia Institute Against Family Violence. Borum, R., Otto, R., & Golding, S. (1993). Improving clinical judgment and decision making in forensic evaluation. Journal of Psychiatry and Law, 21, 35–76. Brower, M. C., & Price, B. H. (2001). Neuropsychiatry of frontal lobe dysfunction in violent and criminal behavior: A critical review. Journal of Neurology, Neurosurgery, and Psychiatry, 71, 720–726. California Welfare and Justice Code, Sec. 6600 (2006).

Evaluations for the Civil Commitment of Sexual Offenders

207

Campbell, T. W. (2003). Sex offenders and actuarial risk assessments: Ethical considerations. Behavioral Sciences & the Law, 21, 269–279. Campbell, T. W. (2004). Assessing sex offenders: Problems and pitfalls. Springfield, IL: Charles C. Thomas Publisher. Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Community Protection Act, Rev. Code of WA § 71.09 (1990). Doren, D. M. (2002). Evaluating sex offenders: A manual for civil commitment and beyond. Thousand Oaks, CA: Sage Publications. Esses, V. M., & Webster, C.D. (1988). Physical attractiveness, dangerousness, and the Canadian Criminal Code. Journal of Applied Social Psychology, 18, 1017–1031. Grubin, D. (1998). Sex offending against children: Understanding the risk. Police Research Series Paper 99. London: Home Office. Hanson, R. K. (1997). The development of a brief actuarial risk scale for sexual offense recidivism. Solicitor General of Canada. www. sgc.gc.ca. Hanson, R. K., & Bussiere, M. T. (1998). Predicting relapse: A meta-analysis of sexual offender recidivism studies. Journal of Consulting and Clinical Psychology, 66, 348–362. Hanson, R. K. & Morton-Bourgon, K.E. (2005). The characteristics of persistent sexual offenders: A meta-analysis of recidivism studies. Journal of Consulting and Clinical Psychology, 73, 1154–1163. Hanson, R. K., & Thornton, D. (1999). Static-99: Improving actuarial risk assessments for sex offenders. Retrieved from: http://www.psepc-sppcc.gc.ca/. Hanson, R. K. & Thornton, D. (2000). Improving risk assessments for sex offenders: A comparison of three actuarial scales. Law and Human Behavior, 24, 119–136. Harris, G. T., Rice, M. E., Quinsey, V. L. (1993). Violent recidivism of mentally disordered offenders: The development of a statistical prediction instrument. Criminal Justice and Behavior, 20, 315–335. Harris, G. T., Rice, M. E., Quinsey, V. L., Lalumiere, M. L., Boer, D., & Lang, C. (2003). A multi-site comparison of actuarial risk instruments for sex offenders. Psychological Assessment, 15, 413–425. Hart, S. D. (1998). The role of psychopathy in assessing risk for violence: Conceptual and methodological issues. Legal and Criminological Psychology, 3, 121–137. Heilbrun, K., Rogers, R., & Otto, R. K. (2002). Forensic assessment: Current status and future directions. In J. Ogloff (Ed.), Taking psychology and law into the twenty-first century (pp. 119–146). New York: Kluwer Academic/Plenum Publishers. Hilliard, R. B. & Spitzer, R. L. (2002). Change in criterion for paraphilias in DSM-IV-TR. American Journal of Psychiatry, 159, 1249. Hoberman, H. M. (1999). Expert witness report and testimony in sexual preator devil commitment proceedings. In A. Schlank (Ed.), The sexual predator: Law, policy, evaluation, and treatment (pp. 11:1–11:57). Kingston, NJ: Civic Research Institute. In re the Detention of Thorell, 72 P. 3d 708 (S. Ct. WA 2003). Jackson, R. L., & Richards, H. J. (2007). Diagnostic and risk profiles in a sample of sexually violent predators. International Journal of Offender Therapy and Comparative Criminology, 51, 313–323. Jackson, R. L., Rogers, R., & Shuman, D. W. (2004). The adequacy and accuracy of sexually violent predator evaluations: contextualized risk assessment in clinical practice. International Journal of Forensic Mental Health, 3, 115–129. Janus, E. S. (1998). Hendricks and the moral terrain of police power civil commitment. Psychology, Public Policy, and Law, 4, 297–322.

208

Rebecca L. Jackson and Henry J. Richards

Janus, E. S. (2000). Sexual predator commitment laws: Lessons for law and the behavioral sciences. Behavioral Sciences and the Law, 18, 5–21. Janus, E. S., & Nudell, L. J. (2000). Defending sex offender commitment cases. In A. Schlank and F. Cohen (Eds.), The sexual predator (pp. 1–29). Kingston, NJ: Civic Research Institute. Kan. Stat. Ann 59-29 (a); SB 671 (1994). Kansas v. Crane, 534 U.S. 407 (2002). Kansas v. Hendricks, 521 U.S. 346 (1997). Kennedy, H. G., & Grubin, D. H. (1992). Patterns of denial in sex offenders. Psychological Medicine, 22, 191–196. Lacoursiere, R. B. (2003). Evaluating offenders under a sexually violent predator law: The practical practice. In B. J. Winick & J.Q. La Fond (Eds.), Protecting society from sexually dangerous offenders: Law, justice, and therapy (pp.75–97). Washington, DC: American Psychological Association. Langevin, R. (1988). Defensiveness in sex offenders. In R. Rogers (Ed.), Clinical assessment of malingering and deception (pp. 269–290). New York: Guilford Press. Lynett, E. & Rogers, R. (2000). Emotions overriding forensic opinions? The potentially biasing effects of victim statements. The Journal of Psychiatry and Law, 28, 457. Marshall, W. L., & Fernandez, Y. M. (2000). Phallometric testing with sexual offenders: Limits to its value. Clinical Psychology Review, 20, 807–822. Mercado, C. C., Schopp, R. F., & Bornstein, B. H. (2005). Evaluating sex offenders under sexually violent predator laws: How might mental health professionals conceptualize the notion of volitional impairment? Aggression and Violent Behavior, 10, 289–309. Miller, H. A., Amenta, A. E., Conroy, M. A. (2005). Sexually Violent Predator evaluations: Empirical evidence, strategies for professionals, and research directions. Law and Human Behavior, 29, 29–54. Monahan, J. (1981). The clinical prediction of violent behavior. Washington, DC: National Institute of Mental Health. Morse, S. J. (1998). Fear of danger, flight from culpability. Psychology, Public Policy, and Law, 4, 250–267. Morse, S. J. (2003). Bad or mad? Sex offenders and social control. In B.J. Winick & J. Q. La Fond (Eds.) Protecting society from sexually dangerous offenders: Law, justice, and therapy (pp. 165–182). Washington, DC: American Psychological Association. Newman, J. P. Wallace, J. F., Schmitt, W. A., & Arnett, P. A. (1997). Behavioral inhibition system functioning in anxious, impulsive, and psychopathic individuals. Personality and Individual Differences, 23, 583–592. Newman, J. P., & Kosson, D. S. (1986). Passive avoidance learning in psychopathic and nonpsychopathic offenders. Journal of Abnormal Psychology, 95, 252–256. Patterson, C. M. & Newman, J. P. (1993). Reflectivity and learning from aversive events: Toward a psychological mechanism for the syndromes of disinhibition. Psychological Review, 100, 716–736. Prentky, A., Knight, R. A., & Lee, A. F. S. (1995). Predictive validity of lifestyle impulsivity for rapists. Criminal Justice and Behavior, 22, 106–128. Quinsey, V. L., Harris, G. T., Rice, M. E. & Cormier, C. A. (1998). Violent offenders: appraising and managing risk. Washington, DC: American Psychological Association. Rachlin, S., Halpern, A. L., & Portnow, S. L. (1984). The volitional rule, personality disorders, and the insanity defense. Psychiatric Annals, 14, 139–147. Rice, M. E. & Harris, G. T. (1997). Cross-validation and extension of the violence risk appraisal guide for child molesters and rapists. Law and Human Behavior, 21, 231–241.

Evaluations for the Civil Commitment of Sexual Offenders

209

Rogers, R. (2001). Handbook of Diagnostic and Structured Interviewing. New York: The Guilford Press. Rogers, R., & Dickey, R. (1991). Denial and minimization among sex offenders: A review of competing models of deception. Annals of Sex Research, 4, 49–63. Rogers, R., & Ewing, C. P. (1989). Ultimate opinion proscriptions: A cosmetic fix and a plea for empiricism. Law and Human Behavior, 13, 357–374. Rogers, R. & Jackson, R. L. (2005). Sexually Violent Predators: The risky enterprise of risk assessment. Journal of the American Academy of Psychiatry and the Law, 33, 523–528. Rogers, R. & Shuman, D. W. (2000). Conducting insanity evaluations (2nd ed.). New York: The Guilford Press. Schopp, R. F. (1998). Civil commitment and sexual predators: Competence and condemnation. Psychology, Public Policy, and Law, 4, 323–376. Schopp, R. F. & Sturgis, B. J. (1995). Sexual predators and legal mental illness for civil commitment. Behavioral Sciences & the Law, 13, 437–458. Seto, M. C. (2005). Is more better? Combining actuarial risk scales to predict recidivism among adult sex offenders. Psychological Assessment, 17, 156–167. Sewell, K. W., & Salekin, R. T. (1997). Understanding and detecting dissimulation in sex offenders. In R. Rogers (Ed.), Clinical assessment of malingering and deception (2nd ed., pp. 328–350). New York: Guilford Press. Sjostedt, G., & Langstrom, N. (2001). Actuarial assessment of sex offender recidivism risk: Cross-validation of the RRASOR and the Static-99 in Sweden. Law and Human Behavior, 25, 629–645. Sreenivasan, S., Kirkish, P., Garrick, T., Weinberger, L. E., & Phenix, A. (2000). Actuarial risk assessment models: A review of critical issues related to violence and sex-offender recidivism assessments. The Journal of the American Academy of Psychiatry and the Law, 28, 438–448. Sreenivasan, S., Weinberger, L. E., & Garrick, T. (2003). Expert testimony in sexually violent predator commitments: Conceptualizing legal standards of mental disorder and likely to reoffend. Journal of the American Academy of Psychiatry & Law, 31, 471–485. Texas Health and Safety Code (1999). Title 11, 841. Vognsen, J. & Phenix, A. (2004). Antisocial personality disorder is not enough: A reply to Sreenivasan, Weinberger, and Garrick. Journal of the American Academy of Psychiatry and Law, 32, 440–442. Wallace, J. F., Vitale, J. E., & Newman, J. P. (1999). Response modulation deficits: Implications for the diagnosis and treatment of psychopathy. Journal of Cognitive Psychology, 13, 55–70. Webster, C. D., Douglas, K. S., Eaves, D., & Hart, S. D. (1997). HCR-20: Assessing risk for violence (Version 2). Burnaby, BC: Mental Health, Law, and Policy Institute, Simon Fraser University. Winick, B. J. & La Fond, J. Q. (Eds.) (2003). Protecting society from sexually dangerous offenders: Law, justice, and therapy. Washington, DC: American Psychological Association. Wisconsin Stat. Chapter 980 (1994). Zander, T. (2005). Civil commitment without psychosis: The law’s reliance on the weakest links in psychodiagnosis. Journal of Sex Offender Civil Commitment: Science and the Law, 1, 17–82. Zonana, H., Bonnie, R. J., & Hoge, S. K. (2003). In the wake of Hendricks: The treatment and restraint of sexually dangerous offenders viewed from the perspective of American psychiatry. In B. J. Winick & J.Q. La Fond (Eds.), Protecting society from sexually dangerous offenders: Law, justice, and therapy (pp. 131–145). Washington, DC: American Psychological Association.

9 Forensic Psychology Evaluations at Capital Sentencing1 Mark D. Cunningham

The U.S. Supreme Court in Satterwhite v. Texas (1988) described psychiatric testimony at capital sentencing as “a life or death matter” (at 1802). This characterization aptly captures the unparalleled gravity and implications of evaluations by mental health experts in these ultimate determinations. The demands for competence and professionalism from psychologists practicing in this arena are correspondingly high. The foundation for such competence and professionalism requires a clear understanding of the psycholegal issues involved in these determinations. It also calls for a sophisticated awareness of the implications and repercussions of the evaluation procedures and parameters. Finally, as in any arena of forensic practice, competence and professionalism rest on the empirical data that informs the conclusions and applications of the evaluation (for an extended discussion of parameters and standards for mental health evaluations at capital sentencing see Connell, 2003; Cunningham, in press a, b; Cunningham & Goldstein, 2003; Cunningham & Reidy, 1998a, 1999, 2001, 2002; Dekleva, 2001; Liebert & Foster, 1994; Reidy, Cunningham, & Sorensen, 2001).

The Modern Death Penalty Era The “modern era” of the death penalty in the United States began with, and has evolved through, a series of U.S. Supreme Court decisions. These decisions in turn have shaped state and federal statutes. This began with Furman v. Georgia, a 1972 landmark decision by a divided U.S. Supreme Court declaring that the death penalty was unconstitutional. This was not a determination that the death penalty per se was unconstitutional, rather that the existing death penalty was unconstitutional in its procedures and application. State legislatures throughout the country responded by redrafting their death penalty statutes, attempting to address the concerns of the court that the death penalty had been applied in an unreliable, capricious, arbitrary, or prejudicial fashion. The various revised capital statutes were initially tested and modified by the court in Woodson v. North Carolina (1976), Gregg v. Georgia (1976), Jurek v. Texas (1976), and Lockett v. Ohio (1978). Capital litigation procedures emerging from these and subsequent U.S. Supreme Court decisions broadly reflect three primary themes: 211

212

Mark D. Cunningham

Restricted Class of Death-Eligible Offenses Armed robbery and rape are no longer death-penalty eligible offenses as they were in many jurisdictions pre-Furman. Though some jurisdictions are considering legislation making repeat child molestation a capital offense, this would face a Constitutional challenge (see Coker v. Georgia, 1977). “Capital” murder in the modern era is restricted to particular circumstances, such as murder in the course of a felony, accompanied by specified aggravating factors, or involving a particular class of victims such as policemen or children. Individualized Capital Sentencing Death is never a mandatory penalty, regardless of the offense. Rather, the jury is tasked with making an individualized determination of death-worthiness. This individualized consideration requires a bifurcated or two-stage trial process involving a guilt phase and a sentencing phase where the jury separately deliberates guilt and punishment. An individualized determination of punishment in a capital case, however, is not simply a matter of trial structure. It also requires the weighing of mitigating as well as aggravating factors. Violence risk assessment perspectives are a part of this individualized consideration in some jurisdictions. Heightened Standards of Reliability Reliability in capital cases is enhanced by several post-Furman mechanisms. Two attorneys are appointed to defend a capitally-charged defendant. In many jurisdictions, one or both of these attorneys must have experience or training in capital cases. Death verdicts also come under increased scrutiny and multiple stages of appellate review. Appellate review occurs in two stages: direct appeal, and postconviction proceedings. Each is examined at a state and federal level. Legal errors that may have occurred at trial as a result of various rulings of the trial court in response to pretrial motions, jury selection, or objections during the trial itself are reviewed on direct appeal. The second stages of appellate review are called “postconviction” proceedings at a state level and “habeas” proceedings at a federal level. These proceedings investigate issues that may not be apparent from the trial record alone. Most often postconviction claims assert that the defense attorneys provided inadequate representation, referred to as “ineffective assistance of counsel” (see American Bar Association, 2003; Strickland v. Washington, 1984). For example, the defense may have failed to conduct an adequate mitigation investigation of the defendant’s development and limitations (see Wiggins v. Smith, 2003; Rompilla v. Beard, 2005). On occasion, these claims may also assert prosecutorial misconduct (e.g., withholding evidence, knowingly eliciting perjury), juror misconduct (e.g., conducted an independent investigation), and other miscarriages of justice. As will become apparent in the sections that follow, psychological evaluations at capital sentencing are an extension of these themes of narrowing of the class of offenders eligible for the death penalty, individualized consideration, and heightened reliability.

Forensic Psychology Evaluations at Capital Sentencing

213

Conceptual Issues at Capital Sentencing The psycholegal issues that are the focus of psychological evaluations in capital sentencing at a trial level can be broadly divided into two factors: (a) mitigation and (2) violence risk assessment (Cunningham, 2006b; Cunningham & Goldstein, 2003; Cunningham & Reidy, 2001). Mitigation The U.S. Supreme Court in Lockett v. Ohio (1978) described mitigation at capital sentencing as including “any aspect of a defendant’s character or record, or any of the circumstances of the offense that the defendant proffered as a basis for a sentence less than death.” What may be considered as mitigating, then, is extraordinarily broad and multifaceted. Though mitigation is a multifaceted consideration, a central component is the concept of moral culpability. Moral culpability involves what the Supreme Court in Woodson v. North Carolina (1976) characterized as “the diverse frailties of humankind” (at 304; see also Burger v. Kemp, 1987). The concept of moral culpability acknowledges an elementary psychological reality: we do not all arrive at our choices out of equivalent raw material (see Eddings v. Oklahoma, 1982; Penry v. Lynaugh, 1989). It follows that the degree of “blameworthiness” of an individual for criminal or even murderous conduct may vary depending on what factors and experiences shaped, influenced, or compromised that choice. More specifically, the nature and quality of understanding, perception, impulse control, judgment, and values that underlie choice—even choice that results in heinous violence—are influenced by developmental, cognitive, neuropsychological, relationship, cultural, community, and situational factors (Haney, 1995). Haney (1997), as well as others (Hawkins et al., 2000; Monahan, 1981, 1996; Shah, 1978; U.S. Department of Justice, 1995) have identified this “interactional” convergence of “nature, situation, context, and structure” as the primary explanation for criminal violence (Cunningham & Reidy, 2001). The relationship of developmental damage and other impairing factors to the exercise of choice and, subsequently, to moral culpability is illustrated in the graphic models depicted in Figure 9.1 and Figure 9.2. As the damage and impairing factors (e.g., neglect, abuse, psychological disorder, neuropsychological deficits, substance dependency/intoxication, etc.) increase, choice is exercised on an increasing slope, and moral culpability is correspondingly reduced. The greater the damaging or impairing factors, and the steeper the angle or slope on which the choices are made, the lower is the level of moral culpability. This is the rationale of Atkins v. Virginia (2002); mental retardation, for instance, represents such a significant impairment that the afflicted defendant simply cannot possess the requisite level of moral culpability to be eligible for the death penalty. A related moral culpability rationale, this time implicating developmental immaturity, underlies Roper v. Simmons (2005), the U.S. Supreme Court decision barring the execution of offenders who were less than 18 years old at the time of the capital offense. Of course, an analysis of moral culpability is not limited to mental retardation or adolescence. Rather, formative or limiting impacts from any source of developmental damage or impairment are relevant in the weighing of moral culpability.

214

Mark D. Cunningham

High Choice

Moral Culpability

Damaging or Impairing Factors

Low

Figure 9.1 Moral culpability (scale on right) is relatively high in the absence of damaging or impairing factors as “choice” is relatively unlettered.

Though equally criminally responsible, capital defendants may vary markedly in their moral culpability and, ultimately, in their blameworthiness. Accordingly, it is critically important for psychologists undertaking capital sentencing evaluations to differentiate between these distinct psycholegal issues. Criminal responsibility (i.e., sanity, guilt-phase issue) and moral culpability (i.e., blameworthiness, sentencing-phase issue), and their associated corollary queries are contrasted in Table 9.1. That a capital defendant is criminally responsible is a settled issue when a guilty verdict is returned. On the basis of this criminal responsibility, the defendant will receive a sentence of either life in prison or the death penalty. In determining which of these most severe sanctions will be imposed, the questions of criminal responsibility are of no value to the jury in individualizing the punishment (i.e., they have already been answered “yes” with a guilty verdict).

High

Damaging or Impairing Factors

Ch

oic e

Moral Culpability

Low

Figure 9.2 Moral culpability (scale on right) is progressively reduced as developmentally damaging or impairing factors increase in number and severity, and “choice” is adversely influenced.

Forensic Psychology Evaluations at Capital Sentencing

215

TABLE 9.1 Criminal Responsibility Guilt Phase Sanity Dichotomous Queries: Could he control himself? Did he have a choice? Did he know right from wrong?

Moral Culpability Sentencing Phase Punishment Continuum Queries: What diminished his control? What shaped the choice? What shaped his morality and value system?

Stated differently, in the absence of choice, wrongful awareness, or the ability to exert selfcontrol, the defendant would have lacked some necessary element of the offense or would have been not guilty by reason of insanity. Accordingly, if a weighing of mitigation is in terms of whether the capital defendant had a choice or possessed wrongful awareness, the presentation of the defendant’s circumstances, character, and background would be without individualizing or particularizing value in the application of the death penalty. A moral culpability analysis at capital sentencing, then, is not a dichotomous determination of whether the defendant had a choice or wrongful awareness. Rather, it is an appraisal of the extent to which the background and circumstances of the defendant influenced, predisposed, or diminished the defendant’s moral sensibilities and that exercise of volition or free will. Stated more plainly, how steep was the angle from which the choices were made? Admittedly, a perspective that interacting, adverse biopsychosocial factors were integral to the defendant’s criminal trajectory and capital conduct is more congruent with the defense theory at sentencing. The view advanced by the prosecution, by contrast, typically emphasizes the operation of willful choice, asserting that “a defendant’s crime stems entirely from his evil makeup and that he therefore deserves to be judged and punished exclusively on the basis of his presumably free, morally blameworthy choices . . . ” (Haney, 1997, p. 1459). For this reason, the role of a mental health professional retained by the state at capital sentencing is more often to provide second opinions regarding the assessment findings and the scholarly applications of the defense-retained experts.

Violence Risk Assessment A second psycholegal issue at capital sentencing in many jurisdictions examines the likelihood of future violent acts by the defendant, sometimes referred to as “future dangerousness.” Depending on the jurisdiction, this question may be inadmissible unless introduced by the defense (e.g., California). In two jurisdictions (i.e., Oregon, Texas), this question is a mandatory “special issue” in all capital determinations. In many other jurisdictions, consideration of future violence is available as either a statutory or nonstatutory aggravating factor. “Positive prisoner evidence” or “Skipper evidence” (i.e., factors pointing to a positive adjustment to a life term in prison) can also be introduced as a mitigating factor (Skipper v. South Carolina, 1986).

216

Mark D. Cunningham

The consideration of future violent conduct as a special issue or aggravating factor was introduced as part of the capital sentencing scheme by the Texas Legislature in 1973, and affirmed by the U.S. Supreme Court in Jurek v. Texas (1976) and Barefoot v. Estelle (1983). This special issue of capital sentencing is considered in all cases in Texas and does not arise in particular cases. By statute, it states “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Unfortunately, appellate courts (e.g., James v. Collins, 1993) have declined to provide operational definitions of “probability,” “acts of violence,” or “continuing threat to society.” This necessarily invites ambiguity and controversy in the application of these terms. Inferential guidance, though, can be derived from recognition that this and other capital sentencing considerations drafted in the aftermath of Furman exist to “individualize” the application of the death penalty. If “probability” is construed to mean “any possibility,” then the question would always be answered in the affirmative, and the issue would serve no individualizing or narrowing function. Something more than “any possibility,” then, must be contemplated by the special issue. The rationale of an individualized determination of death-worthiness also informs an understanding of the severity and context of the future violent acts that are contemplated by “criminal acts of violence that constitute a continuing threat to society.” Because the shoving of another inmate, occasional belligerence with staff, and even a mutual fistfight are routine if not ubiquitous acts among prison inmates, these behaviors are of little value in individualizing or narrowing the application of the death penalty. Additionally, reasonable proportionality would require that “threat to society” be limited to acts of sufficient severity that a sanction of death is a reasonable preventative intervention (Cunningham & Reidy, 1998b). Consistent with this line of analysis, no individualizing function is achieved if society is construed to mean the free community as opposed to prison. Under what circumstances is a capital offender not a substantial risk of violence if at large at the time of sentencing? The alternative relevant context is the community on old-age parole. Life-without-parole capital sentencing, however, has largely supplanted any parole considerations for capital offenders. A caution regarding terminology is also in order. “Future dangerousness” is utilized with unfortunate regularity at capital sentencing as shorthand for “probability of criminal acts of violence that would constitute a continuing threat to society.” This shorthand may variously be framed in terms of whether the defendant is “dangerous” or will be “a danger” in the future. Whatever its convenience, reframing the operational definition in this manner has significant potential to alter and confuse the issue. To illustrate, “future dangerousness” and “risk of violent acts” are contrasted in Table 9.2. Most problematically, when construed as “dangerousness,” the issue loses any individualizing value. All violent felons, including all capital offenders, are dangerous. Their “dangerousness” is a significant rationale for their long-term confinement in a highly secure correctional facility. Probability of acts, by contrast, can be specified and will vary from defendant to defendant, thus preserving an individualizing function for this consideration.

Forensic Psychology Evaluations at Capital Sentencing

TABLE 9.2

217

Future Dangerousness vs.Violence Risk Assessment

Future Dangerousness Violence potential Personal attribute Dichotomous decision All violent felons are dangerous No particularizing function Unresponsive to preventive efforts

Violence Risk Assessment Probability of violent act Time and context dependent Continuous variable Varying probability Particularized by risk (probability) Altered by preventive action

Targets and Issues for Informed Consent Informed consent is a fundamental ethical consideration in the provision of both clinical and forensic services (American Academy of Psychiatry and the Law, 2005; American Psychological Association, 2002; Committee on Ethical Guidelines for Forensic Psychologists, 1991). Informed consent occurs when “the recipient or target of services has sufficient information regarding the pending procedures, including the associated potential benefits and hazards, to exercise a meaningful or illuminated choice regarding whether to participate” (Cunningham, 2006b, p. 452). Because the necessity and extent of informed consent disclosures increase with the potential severity of adverse repercussions, evaluations by psychologists in death penalty cases call for particular attention to informed consent. Basic informed consent information is, of course, conveyed directly to the defendant or third parties at the outset of any interview. Regardless of whether retained by the defense or the prosecution, this disclosure should include a clear statement of who has retained the psychologist, the purpose and parameters of the evaluation, the pending procedures and potential applications, and any limitations to confidentiality. Discussion of these factors, however, is more akin to a warning than a fully illuminated disclosure.The “consent” of the defendant may also be illusory, particularly in evaluations by prosecution-retained psychologists (Cunningham, 2006b). To explain, the defendant in most instances cannot decline the evaluation by a state-retained mental health expert without sanctions by the court that may include barring the defense from calling mental health experts and/or asserting some mitigating factors at sentencing. Though the above warnings to the capital defendant are essential, Cunningham (2006b) asserted that defense counsel is the primary target of informed consent disclosures, who then acts as both a conduit in conveying this information to the defendant and an advisor in making strategic use of it. Defense counsel is both the point of contact before the retention is secured and has greater appreciation of the complex issues surrounding mental health evaluations in capital litigation, as well as how the evaluation and its parameters will impact trial strategy and the Constitutional rights of the defendant. Cunningham (2006b) asserted that a prosecution-retained psychologist also has informed consent obligations to defense counsel that extend beyond “warning” disclosures to the defendant or third parties who are interviewed. These proposed obligations include providing meaningful notice, as well as information regarding the limitations and

218

Mark D. Cunningham

potential applications of the proposed evaluation procedures (see Cunningham, 2006b for proposed timing and elements of this notice; see also Estelle v. Smith, 1981). Informed consent by defense-retained psychologists involves a broad range of considerations. These include the expertise and experience of the psychologist, the referral question and focus of the evaluation, the role the psychologist will occupy, and various parameters of the evaluation. Informed consent does not dictate the election of the psychologist in these matters, only that defense counsel is informed of the rationale, options, and repercussions in advance of the retention. The sections that follow are intended to illuminate these considerations for the psychologist and subsequently for informed consent discussions. Roles for Psychologists at Capital Sentencing Advocacy and Bias Psychologists may occupy one of two roles when retained in a capital or other forensic case: either as consultant or testifying expert. As a consultant in capital or other forensic cases, the psychologist is unabashedly aligned with one party in the litigation and advocates for that party’s desired outcome. Consultant activities include jury selection, focus groups, shadow juries, preparation of opening and closing statements, preparation of witnesses, and development of trial strategy. A testifying expert, by contrast, is an advocate for the data and associated expert opinion rather than the outcome. A testifying psychologist, whether retained by the defense or the state, only has an investment in the skill, objectivity, and professionalism of the evaluation, and in providing informed choice regarding the options for this evaluation. Involvement of a testifying expert in consultant activities would represent a dual role, and is obviously inconsistent with the neutrality and objectivity required in expert testimony. Accordingly, the role desired from the psychologist should be clarified at the outset. Maintaining clear role boundaries and professional neutrality is particularly challenging for testifying experts in capital cases. The complexity of capital litigation requires the involvement of multiple attorneys, investigators, and experts who must interact and coordinate their activities during the extended course of the case. This results in subtle pressures to align with the perspectives and goals of the defense or prosecution “team” (Cunningham & Goldstein, 2003). Capital cases are also characterized by intense advocacy by both the prosecution and the defense, and the expert must guard against compromising assessment methods and opinions in the service of this intense advocacy. Bundled Evaluations Psychologists are sometimes asked to simultaneously or sequentially evaluate sentencing considerations and other issues in a given capital case. At times this involves a specific request to expand the evaluation to include competency to stand trial or mental state at the time of offense. In other instances multiple evaluations are imbedded in an unfocused referral to “go see this defendant and tell me what you think.”

Forensic Psychology Evaluations at Capital Sentencing

219

Such “bundled” evaluations of sentencing and other psycholegal issues are typically ill-advised for a number of reasons: 1. A less comprehensive sentencing evaluation may result from defusing the focus of the assessment. 2. Constitutional protections may be forfeited. But for the participation of the same expert for competency and sentencing issues, the findings of the competency-tostand-trial evaluation might not be admissible for any other purpose. 3. Evaluation of mental state at time of offense necessarily requires inquiry regarding the time period of the offense. Such an inquiry, however, would be discretionary if the evaluation focused on sentencing issues of formative developmental factors. Any denials of guilt by the defendant in the course of such a mental state inquiry are likely to be asserted by the state at sentencing as evidence of lack of remorse. 4. The sentencing jury is at risk of confusing competency, sanity, and moral culpability issues—inappropriately forming a nexus between the former two and the latter. 5. If the jury does not find the criminal responsibility (i.e., insanity-related) testimony of the expert to be credible in the guilt phase, acceptance of the expert’s findings at the sentencing phase may be compromised. Further, the jury may fatigue to the repeated testimony of the same expert.

Testifying Roles The testimony of a psychologist at capital sentencing may involve any of three overlapping roles: that of a teaching witness, of an expert in evaluation without direct assessment contact with the defendant, and an expert in evaluation with direct assessment contact with the defendant (see Cunningham & Reidy, 2001; Cunningham, 2006b). As a teaching witness, the psychologist describes research findings that illuminate a factor being considered at sentencing. For example, a teaching witness might describe risk and protective factors for delinquency and violence, or the effects of disrupted attachment, childhood maltreatment, etc. Alternatively, a teaching witness might outline violence risk assessment methodology, and detail relevant rates and correlates of inmate violence. This testimony would assist the jury in applying relevant risk factors in light of the group statistical data on various forms of prison violence. In making an evaluation without direct assessment contact, the psychologist reviews records and interviews third parties, but does not interview or perform testing on the defendant. This procedure is typically the result of the unwillingness of the defense to allow the defendant to be interviewed by state-retained mental health experts, which would be triggered in some jurisdictions if the defendant were interviewed by a testifying defense-retained psychologist. The findings of an evaluation without interview are offered more tentatively and usually focus on historical factors rather than diagnosis or personality descriptions. Whether opinions can be reliably and ethically offered in the absence of direct evaluative contact with the defendant will vary depending on the nature of the issue under consideration and the adequacy of data from other sources (see Cunningham,

220

Mark D. Cunningham

2006b; Cunningham & Reidy, 2001). Mitigation at capital sentencing often focuses on historical adverse developmental factors. The defendant is neither the sole nor the most reliable source of historical information regarding important developmental events and formative influences in his own life. Records, as well as information obtained from family, community members, and other third parties, represent important alternative and potentially preferable sources of developmental information. The nexus drawn by the mental health expert between particular adverse factors and criminally violent outcomes in adolescence or adulthood relies on research studies examining the impact of these risk factors, not on the insight of the defendant. Similarly, the most important types of data in a capital violence risk assessment involve the defendant’s pattern of behavior when incarcerated, various demographic and historical factors, and the base rates of institutional violence in various inmate groups (Cunningham & Reidy, 1998b, 1999, 2002), none of which is fundamentally reliant on interview or testing of the capital defendant. Even recognizing the above limitations of direct evaluation of the defendant and alternative sources of information, evaluation with direct assessment contact is the preferable basis for testimony and provides the most comprehensive investigation and foundation for expert opinions. This role would be essential in quantifying current intellectual or neuropsychological capabilities. It may also be the only vehicle for obtaining historical information that is only known to the defendant (e.g., sexual abuse, substance abuse, observed community violence, corruptive influences, etc.). As will be discussed in the sections that follow, however, interview of the defendant is only one component of a far more wide-ranging capital sentencing evaluation.

Procedures and Parameters of Evaluation Parameters of Interview With Defendant An essential issue to resolve with defense counsel prior to interview of the defendant is whether or not inquiry is permitted regarding the capital offense and/or any unadjudicated conduct. Such a consideration is complex (see Cunningham, 2006b; Cunningham & Reidy, 2001). Interviewing the defendant about the capital offense could help establish whether his capacities at that time were undermined by a major Axis I disorder (DSM-IV-TR, American Psychiatric Association, 2000). The defendant’s accounts of the instant offense and/or prior unadjudicated offense(s), however, do not typically inform a mitigation analysis of damaging developmental trajectory (i.e., how the defendant came to be damaged), nor do these accounts contribute to a violence risk assessment. Further, if the defense-retained expert elicits such a history, the state-retained expert will likely be allowed to also inquire regarding these matters, depriving the defendant of important Fifth Amendment protections. Finally, there is the potential that the account of the defendant will be inconsistent with defense assertions of innocence at the guilt phase or the jury’s finding of guilt. The benefits, limitations, and implications of the defendant’s self-incriminating statements should be disclosed to defense counsel prior to interviewing the defendant.

Forensic Psychology Evaluations at Capital Sentencing

221

The Role of Personality Testing Personality testing adds to the descriptive richness and depth of a psychological assessment, and may be relevant to mitigation assertions of a major Axis I disorder. Personality testing in capital sentencing evaluations, however, also has important limitations and adverse implications that can render its use inadvisable (Cunningham & Reidy, 2001). To summarize these, personality testing has not been standardized on a population facing capital murder charges, and testing profile patterns including MMPI Megargee (1984) profile classifications (i.e., typology of MMPI code-types among prison inmates) routinely change over time. Personality assessment does little to illuminate the damaging developmental trajectory that is fundamental to mitigation. Personality assessment is likely to implicate the presence of a personality disorder and associated descriptions of maladaptive traits—an unsurprising finding in an individual who is assumed for purposes of the assessment to have been so damaged as to perpetrate a capital murder. Finally, because personality testing does not reliably differentiate those inmates who commit acts of serious violence in prison from those who do not, it is of negligible value in violence risk assessments for this institutional context.

Additional Preconsultation Issues Other essential informed consent discussion topics include fee estimates, how the interviews will be memorialized, whether a report will be prepared, any personal advocacy positions regarding the death penalty, and any complaints or judgments that might affect the attorney’s decision to retain the expert.

Evaluation of Mitigation and Moral Culpability Comprehensive Investigation The range of factors that impact on developmental trajectory and adult functioning are extraordinarily broad. Accordingly, a mental heath expert addressing mitigation and moral culpability at capital sentencing faces the daunting task of identifying any factors that might adversely impact on physical, neuropsychological, psychoeducational, personality, social/interpersonal, moral, and vocational development and capability (see Cunningham, 2006c; Cunningham & Vigen, 1999, 2002; Connell, 2003; Cunningham & Reidy, 2001; Liebert & Foster, 1994; Norton, 1992). The comprehensiveness of this assessment task is well beyond any other forensic mental health consultation and requires evaluation procedures of unique thoroughness. This is not an investigation that rests entirely, or even primarily, on the defense-retained psychologist. In addition to two defense attorneys, capital defense teams typically include a social worker or “mitigation specialist” who initiates an investigation of the defendant’s individual and family history well prior to a psychologist’s being retained. This mitigation specialist performs a comprehensive records search regarding the

222

Mark D. Cunningham

defendant and the defendant’s family, including medical, educational, social services, mental health, juvenile, military, employment, criminal, and offense records. These records are ultimately made available to the psychologist. The mitigation investigator also locates and interviews a large number of family members and other third parties who are familiar with the defendant, his family history, or his social context. Summaries of each of these interviews are prepared. The mitigation investigator then integrates the information obtained from these records and interview summaries into a detailed chronology or time line of the defendant’s generational family history. The mitigation specialist routinely invests hundreds of hours in this comprehensive investigation of a capital defendant’s life. Depending on the discovery rules and trial strategy of the defense, the interview summaries and chronologies are provided to the psychologist. The evaluation activities, inquiries, and time investment of the psychologist will vary markedly depending on the focus of the referral. For example, a psychologist may be asked to evaluate a particular developmental factor (e.g., disrupted attachment, sexual abuse, substance dependence) or deficiency (e.g., intellectual functioning, neuropsychological deficits). Alternatively, the psychologist may be involved in investigating the presence and implications of all of the adverse developmental, family, and community factors in a defendant’s background. Table 9.3 provides a sample of such factors. As this admittedly incomplete listing reflects, the spectrum of possible factors can be daunting. It is not uncommon for fifteen or more adverse developmental factors to be present in a given capital defendant’s history. As this listing reflects, the primary emphasis of a mitigation evaluation is developmental and explanatory, rather than simply diagnostic and personality descriptive. TABLE 9.3

Potential Adverse Developmental Factors

Neurological and Hereditary Factors Chromosomal abnormalities Prenatal alcohol or drug exposure Perinatal complications Mental retardation or deficient intelligence Closed head injuries Toxin exposures Inhalant and other substance abuse Attention Deficit Hyperactivity Disorder Learning disabilities Chronic trauma exposure Type II alcoholism Substance dependency and intoxication effects Youthfulness Genetic predisposition to substance dependence Genetic predisposition to psychological disorders

Family Factors

Community Factors

Multigenerational family distress Parental substance dependence Parental psychological disorder Parental criminality Mother a teen at outset of childrearing Father absence Disrupted primary attachment Abject poverty Physical and emotional abuse and neglect Observed domestic violence Sexually traumatic exposures Corruptive socialization Large family size Insufficient supervision and guidance

Poverty Deficient educational system Racial prejudice Single-parent households Corruptive community values Community violence Teen recruitment into drug trafficking Gang pervasiveness and recruitment Peer criminality Inadequate interventions

Forensic Psychology Evaluations at Capital Sentencing

223

Review of records. Depending on the extent of the issues involved in the referral, the psychologist will review a varying volume of records. If tasked with considering all psychological and adverse developmental factors, the psychologist may ultimately review all records retrieved regarding the defendant, his family, and his community setting. Interview of the defendant. If in a role of a testifying expert with direct assessment of the defendant, the psychologist will spend eight to twenty hours obtaining a comprehensive and detailed biopsychosocial, multigenerational history from the capital defendant. Such extended interviewing is required to secure candid anecdotal description of specific events, particularly of trauma and victimization. Extended interviews also help build trust and rapport, and counter the tendency of most capital defendants to minimize or deny dysfunctional family processes and traumatic experience (Connell, 2003; Dekleva, 2001; Cunningham & Reidy, 2001). Interview of third parties. Family members and other third parties are often better historians than the defendant, and represent more credible sources as well. Typically, the psychologist will conduct numerous in-person or telephone interviews with these third parties. Contrary to expectations that family members would fabricate generational and childhood pathology in an effort to “save” their loved one, the relatives of capital defendants routinely minimize dysfunctional aspects of their family history so as to place themselves and their family in the best possible light. Obtaining an accurate and candid history of the defendant and extended family can be facilitated by orienting family members to the purpose of the evaluation, employing patiently probing interviews, and sampling from a wide range of family members. The psychologist should maintain detailed notes of these interviews and have these available at the time of testimony. Referrals for specialized assessment. Complete neuropsychological assessment is indicated in most capital sentencing workups. Not uncommonly, referrals for neurological evaluation, EEG, and neuroimaging are made as well. These referrals are driven by the routine presence of neurological insults and indicators of neuropsychological dysfunction in the histories of capital offenders (Cunningham & Vigen, 2002), as well as a disproportionate incidence of such histories among violent offenders (Blake, Pincus, & Buckner, 1995; Langevin, Ben-Aron, Wortzman, Dickey, & Handy, 1987; Lewis, Pincus, Feldman, Jackson, & Bard, 1986; Martell, 1992). Often other factors are identified that require referral for more specialized consultation. These may include toxicology, endocrinology, mental retardation, psychopharmacology, learning disabilities, addiction medicine, and other specialized fields of expertise (Cunningham & Goldstein, 2003).

Nexus With Developmental Trajectory and Outcome The identification of impairments and adverse developmental factors is only a critical first step in a capital sentencing evaluation. Without knowledge of research findings on the impact such factors have on developmental trajectory and criminality, the jury has no mechanism to give informed weight to the mitigating factors they hear. Accordingly, a second and equally important aspect of a psychological evaluation at capital sentencing involves detailing the influence of such impairments and adverse

224

Mark D. Cunningham

factors on developmental trajectory—particularly as these may have been demonstrated to have a nexus with criminal violence in late adolescence or adulthood. A literature review regarding the life trajectory impact of commonly encountered developmental factors in capital cases is well beyond the scope of this chapter. Any review would be incomplete, though, without reference to research studies and summaries sponsored by the U.S. Department of Justice that identify risk and protective factors for chronic delinquency and serious violence in the community (e.g., Chaiken, 2000; Hawkins et al., 2000; Kelley, Thornberry, & Smith, 1997; Thornberry, 1994; Thornberry, Smith, Rivera, Huizinga, & Stouthamer-Loeber, 1999; U.S. Department of Justice, 1995; Wasserman et al., 2003; Widom, 2000). To illustrate, Table 9.4 details developmental risk factors for delinquency and criminal violence in the community as reported by Hawkins et al. (2000). This and other relevant papers can be accessed through the Website and links of the Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice (http://ojjdp.ncjrs.org/pubs/delinq.html). These studies are consistent with a well-established developmental perspective that adult outcome is a function of the cumulative saturation of risk factors, as well as the interaction and balance of predisposing, risk, and protective factors in childhood. In other words, as predisposing and risk factors increase and protective factors decrease, there is an increasing probability of adult maladjustment, substance abuse, psychological disorders including personality disorders, delinquency, criminality, and criminal violence. In considering this nexus between damaging developmental factors and adverse outcomes in adulthood, it is important to note that everyone need not totally succumb to adverse developmental exposures in order for a “toxic” effect to be implicated. Correspondingly, all similarly situated persons need not commit acts of criminal TABLE 9.4

U.S. Department of Justice Model: Predictors of Youth Violence

Individual Psychological Factors Internalizing disorders Hyperactivity, concentration problems, restlessness, and risk taking Aggressiveness Early initiation of violent behavior Involvement in other forms of antisocial behavior Beliefs and attitudes favorable to deviant or antisocial behavior Family Factors Parental criminality Child maltreatment Poor family management practices Low levels of parental involvement Poor family bonding and family conflict Parental attitudes favorable to substance use and violence Parent–child separation

School Factors Academic failure Low bonding to school Truancy and dropping out of school Frequent school transitions Peer-Related Factors Delinquent siblings Delinquent peers Gang membership Community & Neighborhood Factors Poverty Community disorganization Availability of drugs and firearms Exposure to violence and racial prejudice

Note: From “Predictors of Youth Violence,” by J. D. Hawkins, T. I. Herrenkohl, D. P. Farrington, D. Brewer, R. F. Catalano, T. W. Harachi, and L. Cothern. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, April 2000.

Forensic Psychology Evaluations at Capital Sentencing

225

violence or suffer adverse life outcomes in order to demonstrate a relationship between background and outcome. The analysis of risk, vulnerabilities, and protective factors in the etiology of criminal violence and other adverse life outcomes is quite similar to explanations of why some individuals contract cancer and others do not (i.e., toxin exposure, predisposing factors, and protective factors). Thus, a history of adverse developmental experiences does not invariably result in a criminally violent or markedly impaired adult outcome—only a much increased likelihood of it. These general perspectives regarding risk and protective factors, as well as recurrent problematic outcomes in the defendant’s extended family, are often critical to rebutting the very predictable argument of the state that “many people have tough childhoods” or that the developmental history of the defendant is only an “abuse excuse.”

Violence Risk Assessment at Capital Sentencing Reliable assessments of the “probability of future criminal acts of violence” require knowledge of a highly specialized and often counterintuitive literature and associated correctional group statistical data (e.g., Cunningham, 2006a; Cunningham & Reidy, 1998a, 1998b, 1999, 2002; Cunningham & Sorensen, 2006a, 2006b, in press; Cunningham, Reidy, & Sorensen, 2005; Cunningham, Sorensen, & Reidy, 2005; Edens et al., 2005; Reidy, Cunningham, & Sorensen, 2001; Sorensen & Cunningham, in press). A number of essential conceptualizations and conclusions emerge from this research.

Prison Typically the Only Relevant Context As of mid-2007, New Mexico was along among 39 jurisdictions with capital punishment that did not have a provision for life-without-parole sentencing as either the exclusive or an available alternative to the death penalty (Cunningham & Sorensen, 2006b). Capital inmates sentenced to life-without-parole will never be in the open community again. Prison, then, is almost always the only relevant context for a violence risk assessment at capital sentencing (Cunningham, 2006a).

Prison Violence not Reliably Predicted From Community Violence A well-known predictive maxim is that the best predictor of future behavior is past behavior. This is known as a “past pattern” or “anamnestic” approach. The reliability of an anamnestic approach rests on sufficient behavior to form a pattern and adequate similarity in the context of prediction (see Morris & Miller, 1985). It is not surprising then that the marked differences between the community and prison (see Cunningham & Reidy, 1999; Cunningham, Sorensen, & Reidy, 2005) result in violent behavior in the former being a poor predictor of violent behavior in the latter (see also Flanagan, 1980). Simply stated, for most inmates there is not a continuing trajectory of serious violence that crosses the community to prison boundary.

226

Mark D. Cunningham

To demonstrate, at the end of 2005, 48% of the inmates of the Texas Department of Criminal Justice (TDCJ) were serving sentences for violent offense convictions, and 37% had served a prior sentence in the Texas prison system. Despite this concentration of individuals whose community conduct had been recurrently criminal and violent, the rate of serious violence in TDCJ in 2005 was quite low. The rate of inmateon-inmate homicide in TDCJ was only 1.28 per 100,000 inmates in 2005 (Executive Services, March, 2006), less than one eighth of the 11.2 per 100,000 rate of homicide among males in the open community of the United States (see Pastore & Maguire, 2006). Also quite low were annual rates of serious assault of a staff member (.000345) or another inmate (.0065). A conviction for murder is also not predictive of prison violence. Sorensen and Pilgrim (2000), utilizing a retrospective review of the prison disciplinary records of 6,390 convicted murderers admitted to Texas prisons from 1990–1998, projected that during a 40-year term in prison 83.6% of these murderers would not engage in serious institutional violence. The 40-year projected likelihood of an aggravated assault of a correctional officer was 1%, and the projected 40-year risk of the homicide of another inmate was .2% (.002). Sorensen and Cunningham (manuscript under review) undertook a comparative examination of the 2003 disciplinary records of inmates in the Florida Department of Corrections. They found no differences in prevalence rates of institutional assault, however defined, among inmates who had been convicted of first-degree murder (n = 5,010), as compared to inmates convicted of property offenses (n = 11,017) or all inmates in Florida DOC (N = 51,512).

Capital Offenders Neither Inevitably nor Disproportionately Violent in Prison A number of studies have examined rates of assaultive misconduct in the general prison population by capital inmates who were either sentenced to life terms at their trials or obtained relief from their death sentences (for a review see Cunningham & Reidy, 1998b). These data are reflected in Table 9.5, demonstrating that the majority of capital offenders do not engage in serious prison violence (Cunningham, Reidy, & Sorensen, 2005; Marquart & Sorensen, 1989; Reidy, Cunningham, & Sorensen, 2001; Sorensen & Wrinkle, 1995) and comparatively are not a disproportionate source of this misconduct (Marquart, Ekland-Olson, & Sorensen, 1989). For example, less than a third of 533 capital offenders commuted under Furman nationwide committed a serious disciplinary infraction during the ensuing 15 years in the general prison population, and only 7.4% committed three or more of these institutional offenses (Marquart & Sorensen, 1989). A study involving former death row inmates in Indiana, found that only 15.4% of the capital offenders committed assaults resulting in serious injuries during confinements averaging 16 years on and off of death row (Reidy et al., 2001). Marquart et al. (1989) found that capital inmates in the general prison population exhibited an annualized frequency rate of institutional violence that was less than one fourth that of inmates system-wide, and less than one-seventh that of inmates on the high-security unit. This finding of disproportionately low rates of prison violence is not an isolated one. Cunningham, Sorensen, and Reidy (2005) found that

Forensic Psychology Evaluations at Capital Sentencing

227

TABLE 9.5 Assaultive Rule Violations of Capital Inmates and Comparison Inmates Study Akman, 1966

Bedau, 1964

Cunningham, Reidy & Sorensen, 2005

Cunningham & Sorensen, in press a Edens et al., 2005

Marquart, Ekland-Olson & Sorensen, 1989

Marquart, Ekland-Olson & Sorensen, 1994

Sample N = 69 FDR, Canada N = 7,447 systemwide, Canada N = 55 FDR, New Jersey N = 149 MS-DS, Missouri N = 1,054 LWOP N = 2,199 parole eligible N = 136 CLS, Texas

N = 48 FDR, Texas

N = 90 FDR, Texas N = 107 CLS murderers, Texas N = 38,246 systemwide, Texas N = 100 FDR, Texas N = 47 FDR, Texas

N = 156 LS, Texas

Reidy, Cunningham, & Sorensen, 2001

Sorensen & Cunningham, under review Sorensen & Cunningham, in press

(128 murderers/28 rapists) N = 39 FDR, Indiana

N = 51,527 systemwide, Florida 5,010 first-degree murderers N = 1,659 murderers, Texas 223 lesser homicides 1,108 murderers 328 capital murders

Follow-Up Interval

Capital Inmates

1964–1965 (2 years) 0 cumulative 1964–1965 (2 years) 0 cumulative (serious assault) 1991–2002 (average 0.076 annual 6.7 years) (average. 4.3 years) (average. 1.5 years)

Comparison Inmates .007 annual

1907–1960 (53 years)

0.096 annual 0.425 annual

2001–2005 (average 0.127 annual 2.37 years) 1974–2002 (average 0.042 cum. 20.9 years) preval. (serious assault) 1974-88 (average 0.016 annual 6.3 yrs) 1974–1988 (average 0.026 annual 7.2 years) 1986 0.12 annual 1924–1972 (average 0.20 cumulative 12 years) 1973–1988 (average 0.07 cum. 10 years) preval. (serious assault) 1973–1988 (average 11 yrs) 0.10 cum. preval. (serious assault) 1972–1999 (average 0.20 cum. 9.3 yrs) preval. 0.077 cum. preval. (serious assault) 2003 0.034 annual 0.032 annual 2001–2003 (average 20 months) initial confinement 0.045 cum. preval. 0.070 cum. preval. 0.162 cum. preval.

(continued)

228

Mark D. Cunningham

TABLE 9.5 Assaultive Rule Violations of Capital Inmates and Comparison Inmates (Continued) Study Sorensen & Pilgrim, 2000

Sample N = 6,390 murderers, Texas

Follow-Up Interval

Capital Inmates

1990–1999 (M = 4.5 years)

Comparison Inmates .024 annual .084 cum. preval. (serious assault)

Sorensen & Wrinkle, 1996

N = 648 murderers, Missouri

1977–92

93 death row

M = 6.62 years

323 LWOP 232 LWP (second degree)

M = 6.66 years M = 7.13 years

0.218 cum. preval. 0.237 cum. preval. 0.176 cum. preval.

0.224 cum. preval.

Note: Updated and adapted in part from “Violence Risk Assessment at Federal Capital Sentencing: Individualization, Generalization, Relevance, and Scientific Standards” by M. D. Cunningham and T. J. Reidy (2002). Criminal Justice and Behavior, 29, 512–537. Originally adapted from “From Death to Life: Prison Behavior of Former Death Row Inmates in Indiana. by T. J. Reidy, M. D. Cunningham, & J. Sorensen, (2001). Criminal Justice and Behavior, 28, 62–82. FDR = former death row; MS-DS = mainstreamed death sentenced; LS = life sentence; CLS = capital life sentence; LWOP = life without parole; LWP = life with parole; cum. preval. = cumulative prevalence rate; annual = annual frequency rate.

“mainstreamed” death-sentenced (i.e., intermingled in the general prison population rather than segregated on death row), as well as inmates serving life-without-parole (LWOP), were half as likely to be cited for assaultive misconduct as the paroleeligible inmates with whom they were side-by-side in the same Missouri correctional facility. Antisocial Personality Disorder not Reliably Predictive of Prison Violence Despite its notorious frequency of appearance in violence risk assessments at capital sentencing (Cunningham & Reidy, 1998a, 1999; Edens et al., 2005), there is no research demonstrating that Antisocial Personality Disorder (APD) or its progeny (e.g., sociopathy, psychopathy) are reliably predictive of serious violence in American prisons (Cunningham, 2006a; Cunningham & Reidy, 1998a, 2002). The poor predictive performance of such personality pathology is not surprising given the intersection of the high prevalence rate of APD among prison inmates and the low rate of serious violence in prison. Aggregating various studies, it is estimated that 75% of inmates in American prisons meet diagnostic criteria for APD (see Cunningham & Reidy, 1998a, 2002; Meloy, 1988; Widiger & Corbitt, 1995). Any characteristic that is present in the majority of subjects in a targeted population will fail to predict a low base rate (i.e. highly infrequent) behavior. Antisocial Personality Disorder is normative among a prison population and, accordingly, does not denote a particularly malignant or violence prone inmate. Similarly, histories associated with the etiology or expression of this personality disorder (e.g., childhood maltreatment or misconduct,

Forensic Psychology Evaluations at Capital Sentencing

229

impulsivity, lack of remorse, irresponsibility, dishonesty, substance dependence, etc.) are so frequent among a prison population that these features also fail to predict serious violence in a prison context (Cunningham & Reidy, 2002). Psychopathy (see the Psychopathy Checklist–Revised; Hare, 2003), though representing an extreme end of the APD continuum and present in a much smaller proportion (25%) of inmates, has fared no better as a predictive construct for serious violence in American prisons (see Cunningham & Reidy, 1998a; 2002; Cunningham, Sorensen, & Reidy, 2005; Edens, 2001; Edens et al., 2005; Edens, Petrila, & Buffington-Vollum, 2001).

Prison Violence Usually Represents an Interaction of Factors The proclivities of an inmate are only one factor, and potentially not the primary factor, in influencing the occurrence of serious violence in prison. Rather, violent acts in most contexts represent the pathological intersection of person–interaction– context (Monahan, 1981, 1996; Shah, 1978). Consistent with this early risk assessment formulation, a triad of factors have increasingly been recognized as contributing to prison violence (see Cunningham et al., 2005). These include “importation” factors (i.e., variables that the inmate brings with him into prison), deprivation factors (i.e., hardships associated with confinement) and situational factors (Jiang & FisherGiorlando, 2002). Consistent with this view, Gendreau, Goggin, and Law (1997), in a meta-analysis of studies of prison misconduct, found that “institutional factors produced larger correlations with the criterion than did any other predictor domain” (p. 425). Not surprising in light of the above conceptualizations, as of mid-2006 there were no personality test profiles or risk assessment instrument scores that currently reliably predict serious violence in American prisons (for reviews see Cunningham & Reidy, 1998a, 1998b, 2002; Cunningham et al., 2005; Edens et al., 2005). Though simplistically attractive at capital sentencing, a single-dimensional view that prison aggression is solely a function of the individual is not supported by correctional data. Because of the low base rate of serious violence in prison and the interacting contribution of factors that result in this violence, it is doubtful that a model can be developed from preconfinement factors that will result in a “more-likely-thannot” probability of serious violence in prison.

Reliable Assessments of Varying Levels of Improbability can be Made A finding that offenders similar to the defendant present a low and not disproportionate risk of serious violence in prison will be reached with high reliability in most capital cases through the application of base rate and actuarially derived data. The specified improbability will vary in relation to the severity of violence being forecasted. Further, even that low probability can be reduced by the application of correctional interventions including more secure confinement. By contrast, assertions at capital sentencing of high and disproportionate risk of violence in prison are, in most instances, unreliable. Illustrating this unreliability,

230

Mark D. Cunningham

Edens et al. (2005) reported on the predictive accuracy of mental health experts whose testimony had asserted future dangerousness in 155 capital sentencing cases in Texas. If the assertions of future dangerousness were intended to reflect a serious assault, the expert prediction was wrong 95% of the time. If the expert assertions of dangerousness were intended to reflect a probability of a homicide in prison, the predictions were wrong in every instance. These extraordinarily unreliable predictions of violence reflected the adoption of illusory correlations (i.e., factors erroneously believed to be associated with prison violence) and a neglect of base rate data. How can assertions of low likelihood be reliable, whereas conclusions of high likelihood are not? The answer, of course, is group data. Only a minority of capital offenders engage in serious violence in prison. There is currently no mechanism for reliably identifying from preconfinement variables a subgroup that is more likely than not to perpetrate such violence in prison. This reality results in reliable estimates of varying levels of improbability (see Cunningham, 2006a).

Consideration of Risk Management in Risk Assessment Violence risk assessment also includes consideration of what risk management procedures could be applied to reduce any risk (see Cunningham & Reidy, 2002; Heilbrun 1997; Heilbrun et al., 2000). These may include mental health treatment, preventive and rehabilitation programming, classification, or more secure confinement options. Regarding this latter intervention, super-maximum confinement is an available option in almost all correctional jurisdictions in the United States. At this security level an inmate is typically single-celled, confined to the cell 23 hours a day, handcuffed when removed from the cell, and has no physical contact with other inmates. Any opportunity to exhibit serious violence when maintained at this security level is markedly reduced.

Practical applications The following steps for making a violence risk assessment at capital sentencing are suggested (see Cunningham, 2006c): 1. Retrieve and review correctional and empirical group statistical/actuarial modeling data. Review capital violence risk assessment literature. 2. Review the defendant’s jail and prison records. Identify any pattern of serious violence in jail or prison. (Note: Mutual fist fights are not considered serious violence.) Seek rates of inmate weapons infractions and assaults in the relevant facilities for comparison. 3. If the defendant is interviewed, seek information regarding past and current celling and custody, involvement in inmate work or educational programming, any disciplinary infractions and the defendant’s explanation of these, family contact and visitation, mental health consultations and medication support, community employment history, educational attainment, and past response to structured settings. 4. Interview correctional staff and other third parties regarding the defendant’s adjustment to incarceration.

Forensic Psychology Evaluations at Capital Sentencing

231

5. Examine relevant group rates (i.e., base rates) and establish anchor points of risk corresponding to the severity of various predicted acts. 6. Modestly adjust the group rates in light of individual factors that are sufficiently infrequent to deviate from the respective group. 7. Consider interpersonal−situational–contextual components as well as personal disposition factors in individualizing group data. 8. If the risk estimate is a substantial departure from the base rate, consider whether the underlying observations and data are sufficiently reliable and empirically validated to justify this departure (see Cunningham & Sorensen, 2006a, b; Cunningham et al., 2005; Sorensen & Pilgrim, 2000). 9. Consider what risk management interventions might be brought to bear, and the impact of these on the risk estimate. 10. Identify how the risk estimate is likely to change as the defendant ages during a capital life term or based on age at parole. 11. Scrutinize the risk assessment for common errors (see Cunningham & Reidy, 1999).

Evaluations for Mental Retardation Proceedings Psychologists may be retained to provide evaluation services many years after a defendant has been sentenced to death. This may occur if a capital defendant were sentenced to death prior to Atkins v. Virginia (2003), or if evidence emerges that a death-sentenced inmate may be a mentally retarded person. The standards and procedures for making these determinations remain dynamic and evolving, both in statutes and case law. Regardless, from an assessment standpoint a number of activities, factors, and conceptualizations appear relevant: 1. Attempt to retrieve all prior intellectual assessment performed on the defendant. To the extent that test protocols or subtest scores are available, recheck scoring, addition, and related IQ tables for errors. 2. By definition, IQ scores reflect relative position in the population. Accordingly, interpretation of prior and current test scores requires correction for the “Flynn Effect” (Flynn, 2006; Kanaya, Scullin, & Ceci, 2003). The Flynn Effect is a well-established finding that IQ scores are inflating (becoming increasingly overestimated) by approximately .3 points per year from the date of test standardization to the date of test administration. The Flynn Effect is more pronounced for performance (i.e., nonverbal or fluid) intelligence. Qualifying IQ scores for a diagnosis of Mental Retardation should acknowledge the Standard Error of Measurement (see DSM-IVTR; APA, 2002). 3. Current test administration should reflect the most recently standardized version of an individually administered, multisubtest instrument that is appropriate for the defendant’s language and national origin. The instrument(s) selected should be administered in its entirety. Carefully recheck all scoring and calculations. 4. Procedures should be employed to evaluate the defendant’s test effort. Consider administration of two independent measures of intelligence to assist in this determination. Avoid broad personality assessment measures in effort evaluation as these have not been standardized on persons of deficient intelligence. 5. Assessments of adaptive functioning are complex as these are likely to be retrospective and not amenable to standardized instruments that are predicated on interviews

232

Mark D. Cunningham

of third parties regarding contemporaneous observations of activities in the community. Seek prior educational, mental health, employment, and other descriptive records that illuminate adaptive functioning. Historical observations regarding the defendant should be sought from numerous third parties. 6. When there is a significant interval of years between the capital offense and the current assessment, the evaluation will need to consider whether the issue is current functioning or functioning at the time of the offense. This differential and its moral culpability implications may not be addressed by statute or case law.

Evaluations for Postconviction and Federal Habeas Proceedings Potentially years after the capital sentencing trial, a psychologist may be retained to evaluate what could have been presented by the defense in mitigation had an adequate investigation and psychological assessment occurred. This is associated with a postconviction or federal habeas claim that counsel did not provide a reasonable sentencing defense. This claim is termed “inadequate assistance of counsel.” These psychological evaluations may be as extensive as would be performed at trial, or may be limited to summarizing and describing the implications of history uncovered in posttrial investigations. Typically, a detailed affidavit is prepared. This may be followed by testimony at an evidentiary hearing where a determination is made of whether failures of trial counsel were so grave that the defendant was deprived of a fair trial and is entitled to a new sentencing phase. Case Study Julian Johnson was arrested at age 24 for the capital murder of two rival drug dealers in an inner-city urban area. A forensic psychologist was contacted to provide capital sentencing evaluation services after Julian had been in custody for nine months. Julian’s capital trial was scheduled for the following year. Prior to confirming the retention, the psychologist and defense counsel engaged in an extended discussion regarding the areas of expertise of the psychologist and the alternatives for the focus, parameters, and methods of the evaluation. From this informed consent discussion it was agreed that the psychologist would evaluate the presence and implications of any adverse developmental factors. Julian would be interviewed, but not regarding the capital offense or any prior unadjudicated conduct. An extensive investigation entailing several hundred hours had already been accomplished by a social worker who was serving as a mitigation specialist. The social worker provided the psychologist with voluminous records that had been retrieved regarding Julian, as well as summaries from interviews of 28 family members and other third parties, and a lengthy chronology that integrated the interview and records data regarding critical events. After reviewing these materials, the psychologist interviewed Julian in the county jail, obtaining a highly detailed generational history from him that was meticulously documented with notes. These interviews on two successive days totaled 12 hours. Individual follow-up interviews, either in person or by phone, were conducted with all of the parties interviewed by the mitigation investigator. The history that emerged revealed that Julian was the product of paternal and maternal family systems characterized by generational dysfunction, including systemic

Forensic Psychology Evaluations at Capital Sentencing

233

poverty, teen pregnancies, parental neglect and abandonment, child abuse and domestic violence, criminality, personality disorders, and substance dependence. Not surprising in this family system, Julian’s mother, Rachelle, was unmarried and in her mid-teens when she gave birth to him. She had had a pattern of drinking heavily on weekends prior to becoming aware of her pregnancy with Julian at 11 weeks. Julian’s biological father was sentenced to prison for armed robbery during the pregnancy and was not paroled until Julian was age 14. Until age nine, Julian resided in the public housing project apartment of his maternal grandmother, sharing this residence with various combinations of up to 18 aunts, uncles, cousins, siblings, and paramours. His “care” was shared by the household adults and older cousins. Rachelle had periods of crack cocaine dependence and was an intermittent presence in the home. Julian’s grandmother died when he was age nine, and he then resided with his mother and a series of her abusive and domestically violent alcoholic or drug-dependent boyfriends. Julian was hyperactive, impulsive, and inattentive throughout childhood. After being retained in both first and second grades, he was identified as learning disabled and received special education assistance. His academic achievement was never at grade level and he dropped out of school at age 15. Julian sustained three head injuries in childhood that were accompanied by loss of consciousness for 3–5 minutes. In light of this history, the psychologist recommended to the attorney that Julian be referred for neuropsychological assessment, and this evaluation subsequently demonstrated mild impairment in functions associated with the frontal lobes. Julian began to drink from unattended cans of beer or mixed drinks at family parties in middle childhood. By his middle teens he was drinking a pint of Remy Martin and smoking three to four “blunts” daily. There was frequent gunfire in the projects, and he saw victims being loaded into ambulances on a number of occasions. Julian could name 17 teen and young adult males he had been acquainted with while growing up who had been shot to death, and a far larger number who had prison histories. Julian began to deal drugs at age 12, initially being fronted small amounts for street sales and eventually progressing to trafficking in weight. The psychologist performed literature reviews regarding the implications of the identified adverse developmental factors, and particularly the nexus of these factors with delinquency, criminality, and violence. This included retrieval and review of a number of studies published by the U.S. Department of Justice. Extended telephone conferences were held with defense counsel. When notified that a report was desired for discovery, the psychologist prepared a several page report summarizing the evaluation and his findings. Digital demonstrative (i.e., PowerPoint) exhibits were prepared by the psychologist to illustrate key aspects of the anticipated testimony, and these were also provided by defense counsel to the prosecution in discovery. Because of the number and breadth of damaging developmental factors in Julian’s background, the testimony of the psychologist at capital sentencing lasted several hours.

Final Thoughts Psychological evaluations for capital sentencing have literal life and death implications, and call for corresponding standards of thoroughness and scholarship. Complex repercussions may ensue from evaluation access and parameters that require special attention to informed consent. This chapter is intended to provide an overview

234

Mark D. Cunningham

and outline of key concepts and resources that can facilitate self-study and reflection. It is not intended to provide adequate preparation to provide these evaluations. Mental health professionals who desire to perform these evaluations are encouraged to familiarize themselves with current developmental and capital violence risk assessment literature, as well as to seek specialized continuing education training. Workshops addressing the role of forensic psychologists in death penalty sentencing evaluations are offered under the auspices of the American Academy of Forensic Psychology. Seminars regarding death penalty litigation are also offered by the National Legal Aid and Defender Association, National Association of Criminal Defense Lawyers, California Attorneys for Criminal Justice, and other organizations. Endnote 1. This book chapter contains summarized and condensed content from the following APA journal articles: “Dangerousness and death: A nexus in search of science and reason,” by M. D. Cunningham, 2006, American Psychologist, 61, 828-839; and “Informed consent in capital sentencing evaluations: Targets and content,” by M. D. Cunningham, 2006, Professional Psychology: Research and Practice, 37, 452-459. Copyright © 2006 by American Psychological Association. Adapted with permission. Portions of this chapter have been adapted with permission from other publications of the author including: Cunningham (2006a,b,c); Cunningham and Goldstein (2003); and Cunningham and Reidy (1998b, 2001). Content for this chapter was also adapted from: “A matter of life or death: Special considerations and heightened practice standards in capital sentencing evaluations,” by M. D. Cunningham and T. J. Reidy, 2001, Behavioral Sciences & the Law, 19, 473–490. Copyright 2001. © John Wiley & Sons Limited. Reproduced with permission. “Special issues in capital sentencing,” by M. Cunningham, 2006, in M. A. Conroy, P. M. Lyons, Jr., and P. P. Kwartner (Eds.), Forensic mental health services in Texas [special issue, electronic version], Applied Psychology in Criminal Justice, 2, 205-236. Reproduced by permission of Applied Psychology in Criminal Justice.

References American Academy of Psychiatry and the Law (2005). Ethics guidelines for the practice of forensic psychiatry. Author. American Bar Association (2003) ABA guidelines for the appointment and performance of counsel in death penalty cases. Author. American Psychiatric Association (2000). Diagnostic and statistical manual of mental disorders, Fourth Edition, Text Revision (DSM-IV-TR). Washington DC: Author. American Psychological Association (2002). Ethical principles and code of conduct. American Psychologist, 57, 1060–1073. Atkins v. Virginia, 536 U.S. 304 (2002). Barefoot v. Estelle, 463 U.S. 880 (1983). Bedau, H. A. (1964). Death sentences in New Jersey, 1907–1960. Rutgers Law Review, 19, 1–64. Blake, P., Pincus, J., & Buckner, C., (1995), Neurologic abnormalities in murderers. Neurology, 45, 1641–1647.

Forensic Psychology Evaluations at Capital Sentencing

235

Burger v. Kemp, 483 U.S. 776 (1987). Coker v. Georgia, 433 U.S. 584(1977). Chaiken, M. R. (March, 2000). Violent neighborhoods, violent kids. Office of Juvenile Justice and Delinquency Prevention. U.S. Department of Justice. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Connell, M. A. (2003). A psychobiographical approach to the evaluation for sentence mitigation. Journal of Psychiatry & Law, 31, 319–354. Cunningham, M. D. (2006a). Dangerousness and death: A nexus in search of science and reason. American Psychologist, 61, 828–839. Cunningham, M. D. (2006b). Informed consent in capital sentencing evaluations: Targets and content. Professional Psychology: Research and Practice, 37, 452–459. Cunningham, M. D. (2006c). Special issues in capital sentencing. In Conroy, M. A., Lyons, P. M., Jr., & Kwartner, P. P. (Eds.). Forensic mental health services in Texas [special issue]. Applied Psychology in Criminal Justice, 2(3). Cunningham, M. D. & Goldstein, A. M. (2003). Sentencing determinations in death penalty cases (pp. 407–436). In A. Goldstein (Ed.), Forensic psychology. New York: Wiley. Cunningham, M. D., & Reidy, T. J. (1998a). Antisocial personality disorder and psychopathy: Diagnostic dilemmas in classifying patterns of antisocial behavior in sentencing evaluations. Behavioral Sciences & the Law, 16, 333–351. Cunningham, M. D. & Reidy, T. J. (1998b). Integrating base rate data in violence risk assessments at capital sentencing. Behavioral Sciences & the Law, 16, 71–95. Cunningham, M. D., & Reidy, T. J. (1999). Don’t confuse me with the facts: Common errors in violence risk assessment at capital sentencing. Criminal Justice and Behavior, 26, 20–43. Cunningham, M. D. & Reidy, T. J. (2001). A matter of life or death: Special considerations and heightened practice standards in capital sentencing evaluations. Behavioral Sciences & the Law, 19, 473–490. Cunningham, M.D. & Reidy, T.J. (2002). Violence risk assessment at federal capital sentencing: Individualization, generalization, relevance, and scientific standards. Criminal Justice and Behavior, 29, 512–537. Cunningham, M. D., Reidy, T. J., & Sorensen, J. R. (2005). Is death row obsolete? A decade of mainstreaming death-sentenced inmates in Missouri. Behavioral Sciences & the Law, 23, 307–320. Cunningham, M. D. & Sorensen, J. R. (2006a). Actuarial models for assessment of prison violence risk: Revisions and extensions of the Risk Assessment Scale for Prison (RASP). Assessment, 13, 253–265. Cunningham, M. D. & Sorensen, J. R. (2006b). Nothing to lose? A comparative examination of prison misconduct rates among life-without-parole and other long-term high security inmates. Criminal Justice and Behavior, 33, 683–705 Cunningham, M. D. & Sorensen, J. R. (in press a). Capital offenders in Texas prisons: Rates, correlates, and an actuarial analysis of violent misconduct. Law and Human Behavior. Cunningham, M. D. & Sorensen, J. R. (in press b). Predictive factors for violent misconduct in close custody. Prison Journal. Cunningham, M. D. & Vigen, M. P. (1999). Without appointed counsel in capital postconviction proceedings: The self-representation competency of Mississippi death row inmates. Criminal Justice and Behavior, 26, 293–321. Cunningham, M. D. & Vigen, M. P. (2002). Death row inmate characteristics, adjustment, and confinement: A critical review of the literature. Behavioral Sciences & the Law, 20, 191–210. Dekleva, K. B. (2001). Psychiatric expertise in the sentencing phase of capital murder cases. Journal of the American Academy of Psychiatry and the Law, 29, 58–67.

236

Mark D. Cunningham

Eddings v. Oklahoma, 455 U.S. 104 (1982). Edens, J. F. (2001). Misuses of the Hare Psychopathy Checklist-Revised in court: Two case examples. Journal of Interpersonal Violence, 16, 1082–1093. Edens, J. F., Buffington-Vollum, J. K., Keilen, A., Roskamp, P., and Anthony, C. (2005). Predictions of future dangerousness in capital murder trials: Is it time to “disinvent the wheel.” Law and Human Behavior, 29, 55–86. Edens, J. F., Petrila, J., & Buffington-Vollum, J. K. (2001). Psychopathy and the death penalty: Can the Psychopathy Checklist-Revised identify offenders who represent “a continuing threat to society?” Journal of Psychiatry and Law 29, 433–481. Edens, J. F., Poythress, N., & Lilienfield, S. (1999). Identifying inmates at risk for disciplinary infractions: A comparison of two measures of psychopathy. Behavioral Sciences & the Law, 17, 435–443. Estelle v. Smith, 451 U.S. 454 (1981). Flanagan, T. J. (1980). Time served and institutional misconduct: Patterns of involvement in disciplinary infractions among long-term and short-term inmates. Journal of Criminal Justice, 8, 357–367. Flynn, J. R. (2006). Tethering the elephant: Capital cases, IQ, and the Flynn Effect. Psychology, Public Policy, and Law, 12, 170–189. Gendreau, P., Goggin, C. E., & Law, M. A. (1997). Predicting prison misconducts. Criminal Justice and Behavior, 24, 414–431. Gregg v. Georgia, 428 U.S. 153 (1976). Haney, C. (1995). Symposium: The social context of capital murder: Social histories and the logic of mitigation. Santa Clara Law Review, 35, 547–609. Haney, C. (1997). Violence and capital law. Stanford Law Review, 49, 1447–1486. Hare, R. (2003). The Hare Psychopathy Checklist— Revised (2nd ed.). Toronto, Ontario, Canada: Multi-Health Systems. Hawkins, J. D., Herrenkohl, T. I., Farrington, D. P., Brewer, D., Catalano, R. F., Harachi, T. W., & Cothern, L. (2000, April). Predictors of youth violence. Juvenile Justice Bulletin. U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. Washington, D.C.: U.S. Department of Justice. Heilbrun, K. (1997). Prediction versus management models relevant to risk assessment: The importance of legal decision-making context. Law and Human Behavior, 21, 347–359. Heilbrun, K., O’Neil, M.L., Strohman, L.K., Bowman, Q., & Philipson, J. (2000). Expert approaches to communicating violence risk. Law and Human Behavior, 24, 137–148. James v. Collins, 987 F2d 1116 (5th Cir. 1993). Jiang, S. & Fisher-Giorlando, M. (2002). Inmate misconduct: A test of the deprivation, importation, and situational models. The Prison Journal, 82, 335–358. Jurek v. Texas, 428 U.S. 153 (1976). Kanaya, T., Scullin, M. H., Ceci, S. J. (2003). The Flynn effect and U.S. policies: The impact of rising IQ scores on American society via mental retardation diagnoses. American Psychologist, 58, 778–790. Kelley, B. T., Thornberry, T. P., & Smith, C. A. (August, 1997). In the wake of childhood maltreatment. Juvenile Justice Bulletin. Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. Langevin, R.., Ben-Aron, M., Wortzman, G., Dickey R., & Handy L., (1987). Brain damage, diagnosis, and substance abuse among violent offenders. Behavioral Sciences & the Law, 5, 77–94. Liebert, D. & Foster, D. (1994). The mental health evaluation in capital cases: Standards of practice. American Journal of Forensic Psychiatry, 15, 43–64.

Forensic Psychology Evaluations at Capital Sentencing

237

Lewis, D., Pincus, J., Feldman, M., Jackson, L., & Bard, B., (1986). Psychiatric, neurological, and psychoeducational characteristics of 15 death row inmates in the United States. American Journal of Psychiatry, 143, 838–845. Lockett v. Ohio, 438 U.S. 604 (1978). Lyon, A. D. & Cunningham, M. D. (2006) Reason not the need: Does the lack of compelling state interest in maintaining a separate death row make it unlawful? American Journal of Criminal Law, 33, 1–30. Marquart, J. W., & Sorensen, J. R. (1989). A national study of the Furman-commuted inmates: Assessing the threat to society from capital offenders. Loyola of Los Angeles Law Review, 23, 5–28. Marquart, J. W., Ekland-Olson, S., & Sorensen, J. R. (1989). Gazing into the crystal ball: Can jurors accurately predict dangerousness in capital cases? Law & Society Review, 23, 449–468. Martell, D. (1992). Estimating the prevalence of organic brain dysfunction in maximumsecurity forensic psychiatric patients. Journal of Forensic Sciences, 37, 878–893. Megargee, E. I. (1984). Derivation, validation, and application of an MMPI-based system for classifying criminal offenders. Medicine and Law, 3, 109–118. Meloy, J. R. (1988). Psychopathic mind: Origin, dynamics, and treatment. Northvale, NJ: Jason Aronson. Monahan, J. (1981). Predicting violent behavior: An assessment of clinical techniques. Beverly Hills, CA: Sage. Monahan, J. (1996). Violence prediction: The past twenty years. Criminal Justice and Behavior, 23, 107–120. Morris, N., & Miller, M. (1985). Predictions of dangerousness. In M. Tonry & N. Morris (Eds.), Crime and justice: An annual review of research (Vol. 6, pp. 1–150). Chicago, IL: University of Chicago Press. Norton, L. (1992, May). Capital cases: Mitigation investigations. The Champion, 43–45. Pastore, A. L., & Maguire, K. (Eds.) (2006). Sourcebook of criminal justice statistics (2003) [Online]. Available: http://www.albany.edu/sourcebook/ [accessed March 31, 2006]. Penry v. Lynaugh, 492 U.S. 302 (1989). Reidy, T., Cunningham, M. D. & Sorensen, J. (2001). From death to life: Prison behavior of former death row inmates in Indiana. Criminal Justice and Behavior, 28, 62–82. Rompilla v. Beard, 545 U.S. ___ (2005). Roper v. Simmons, 543 U.S. 551 (2005). Satterwhite v. Texas, 486 U.S. 249 (1988). Shah, S. (1978). Dangerousness: A paradigm for exploring some issues in law and psychology. American Psychologist, 33, 224–238. Skipper v. South Carolina, 476 U.S. 1 (1986) Sorensen, J. R. & Cunningham, M. D. (manuscript under review). Conviction offense and prison violence: A comparative study of murderers and other offenders. Sorensen, J. R. & Cunningham, M. D. (in press). Operationalizing risk: The influence of measurement choice on the prevalence and correlates of violence among incarcerated murderers. Journal of Criminal Justice. Sorensen, J. R. & Pilgrim, R. L. (2000). An actuarial risk assessment of violence posed by capital murder defendants. Journal of Criminal Law & Criminology, 90, 1251–1270. Sorensen, J. R. & Wrinkle, R. D. (1996). No hope for parole: Disciplinary infractions among death-sentenced and life-without-parole inmates. Criminal Justice and Behavior, 23, 542–552. Strickland v. Washington, 466 U.S. 668 (1984).

238

Mark D. Cunningham

Texas Department of Criminal Justice (2005) Fiscal Year 2004 Statistical Report. Huntsville, TX: Author. Texas Department of Criminal Justice. (March, 2006). Emergency Action Center select statistics: February 2006. Executive Services Department. Huntsville, TX: Author. Thornberry, T. P. (1994, December). Violent families and youth violence. Fact sheet No. 21. National Criminal Justice Resources and Statistics. U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. Washington, D.C: U.S. Department of Justice. Thornberry, T. P., Smith, C. A., Rivera, C., Huizinga, D., & Stouthamer-Loeber, M. (September 1999). Family disruption and delinquency. Juvenile Justice Bulletin, U.S. Department of Justice. U.S. Department of Justice (June 1995). Guide for implementing the comprehensive strategy for serious, violent, and chronic juvenile offenders. Juvenile Justice Bulletin: OJJDP Update on Programs. NCJ 153571. Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Wasserman, G. A., Keenan, K., Tremblay, R. E., Coie, J. D., Herrenkohl, T. I., Loeber, R., & Petechuk, D. (April, 2003). Risk and protective factors of child delinquency. Child Delinquency Bulletin Series. NCJ 193409. U.S. Department of Justice. Widiger, T. A., & Corbitt, E. (1995). Antisocial personality disorder. In W. J. Livesley (Ed.), The DSM IV. personality disorders (pp. 103–134). New York: Guilford Press. Widom, C. S. (January, 2000). Childhood victimization: Early adversity, later psychopathology. National Institute of Justice Journal. Wiggins v. Smith, 539 U.S. 510, 530 (2003). Woodson v. North Carolina, 438 US 304 (1976).

Authors Mark D. Cunningham, Ph.D., ABPP (forensic), is a psychologist in forensic practice in the greater Dallas area. His research and scholarship have been recognized with the 2006 American Psychological Association Award for Distinguished Contributions to Research in Public Policy and the 2005 Texas Psychological Association Award for Outstanding Contribution to Science.

10 Competency for Execution Patricia A. Zapf

Competency for Execution (CFE) has been called the “last competency” (see Brodsky, Zapf, & Boccaccini, 2001); that is, temporally, it is last in a series of opportunities throughout the criminal adjudication process to raise the question of competency for a criminal defendant. The question of competency for execution can be raised for any criminal defendant who has been sentenced to death and who appears to be or to have become severely mentally ill while awaiting execution. Competency for execution, more than any other area within the field of forensic assessment, has been fraught with controversy and debate regarding whether, and to what extent, psychologists (or psychiatrists and other mental health professionals) should become involved in this type of evaluation. Indeed, the personal outcome for the defendant who serves as the evaluee in this type of evaluation weighs heavily in this debate. The point of this chapter is not to deal with the controversy regarding whether psychologists should become involved, but rather to delineate appropriate assessment techniques and considerations for those psychologists who choose to pursue this type of assessment. Given that the focus of this chapter is on assessment, the issue of restoration of competency to be executed will not be discussed. Those readers who are interested in reading more about the controversy regarding participation in this type of evaluation are referred to Appelbaum (1986), Bonnie (1990), and Brodsky (1990) for early discussions of these issues and to Brodsky, Zapf, and Boccaccini (2001, 2005) for an overview of the legal, ethical, and professional issues regarding participation. Those readers who are interested in the controversy regarding participation in competency restoration efforts are referred to Hensl (2005) and Mossman (1995). This chapter will begin with a review of legal decisions pertaining to the assessment of competency for execution. A description of the research and commentary with respect to the assessment of competency for execution will follow and, finally, the assessment of competency for execution, including a description of the forensic assessment instruments that have been developed for use in this type of evaluation. Legal Review of Competency for Execution The mentally incompetent have been excluded from execution since medieval times (Broderick, 1979; Ward, 1986). English common law and early American law excluded the mentally incompetent from executions based on religious, humane, and 239

240

Patricia A. Zapf

societal reasons. Several additional reasons for exclusion are currently recognized in American law, including issues focusing on retribution, the ability to provide information for the appeals process, and the ability to “psychologically” prepare for death (Brodsky, Zapf, & Boccaccini, 1999; Heilbrun, 1987). The U.S. Supreme Court has reviewed several cases in which inmates have alleged mental incompetence at the time of their scheduled executions; earlier cases focused primarily on issues of procedure and due process whereas the constitutionality of executing the insane was not addressed by the Supreme Court until Ford v. Wainwright in 1986. The first competency for execution case heard was in 1897 wherein the Supreme Court granted certiorari1 to establish whether a defendant had a due process right for a jury to determine his competency to be executed (Nobles v. Ga.) In Nobles, the Supreme Court held that the condemned defendant did not have a guaranteed right to a jury trial on the question of competency for execution and that it was the responsibility of each state to resolve the question of competency for execution. Fifty-one years later, in 1948, the Supreme Court once again faced the issue of the constitutionality of executing the insane (Phyle v. Duffy). The Supreme Court in Phyle granted certiorari to determine whether the due process clause of the Fourteenth Amendment forbade the execution of the insane, and whether a person could be executed upon an unreviewable ex parte2 determination of sanity. The Court later refused to address the first question stating that it lacked jurisdiction to hear the petition; however, the Phyle Court did address the second question and ruled that a state could not constitutionally allow a single individual to make an ex parte determination of sanity without judicial supervision or review (Pastroff, 1986). In 1950, the Supreme Court upheld the state of Georgia’s procedures for the disposition of condemned inmates’ insanity claims (Solesbee v. Balkcom). At that time, Georgia’s Governor was responsible for deciding whether to hospitalize a condemned inmate who claimed insanity. The Governor possessed the legal authority to call upon experts to assist him with this decision. The Solesbee court ruled that the petitioner failed to establish that the Governor refused to consider the information submitted to him by the petitioner when rendering his decision. Justice Frankfurter dissented in this case and addressed the constitutionality of executing the insane, arguing that the Constitution prohibits the execution of the insane and pointing out that no individual state permitted the execution of insane persons. He concluded that insane inmates are protected from being executed by the Fourteenth Amendment. Eight years later, a death row inmate challenged a California procedure permitting only a prison warden to take the first step in instituting court proceedings for the determination of competency for execution (Caritativo v. Cal., 1958). The Supreme Court, in Caritativo, upheld the lower court’s approval of this procedure. Again, Justice Frankfurter dissented and strongly criticized the California procedure as violating the inmate’s right to due process. In the time between Caritativo and Ford v. Wainwright, the Supreme Court ruled that capital punishment was both cruel and unusual and violated both the Eighth and Fourteenth Amendments (Furman v. Ga., 1972). The Court also ruled that those states with the death penalty must “refine” their statutes relevant to capital punishment; however, the Furman ruling was vague and temporary. Five Supreme Court Justices agreed that the death penalty violated the two amendments, but each justice

Competency for Execution

241

had unique opinions as to the reason for this violation. Further, the court did not specify what the ruling forbade and what it permitted. As a result, the death penalty was not abolished outright, and by 1986 capital punishment had been reinstated in many states. When the Supreme Court decided Ford v. Wainwright in 1986, 37 states had authorized capital punishment and had laws relating to competency for execution: 23 states had statutory provisions that prohibited the execution of the mentally incompetent, and most granted the authority to stay the execution to prison wardens or to governors (Miller, 1988); four states (Colorado, Kentucky, New Jersey, and Texas) relied on individual case law, and six states required the immediate transfer of mentally incompetent inmates to a secure mental hospital for treatment. Moreover, these states, as well as others, required inmates be treated in order to restore competence and then returned for execution. Wide variation between states existed with respect to procedures for determining legal competency, including: (a) who is qualified to raise the question of an inmate’s competency for execution, (b) what specific procedures apply once the question is raised, (c) who examines the inmate and how thoroughly, (d) what standards or tests of competence are to be used in the evaluation procedure, (e) who makes the final determination regarding competency, and (e) what procedures are followed for the restoration of competency (see Ward, 1986). Immediately following Ford, Heilbrun (1987) offered a comprehensive examination of the standards used by the various states. He reported that out of the 23 states with statutory provisions, two relied on an “understand” standard, which requires that the inmate be aware of the fact that he or she was convicted and is being punished by execution; six states relied on an “understand and assist” standard, which requires that the inmate be able to effectively assist his or her attorney in the preparation of a defense that may ultimately render him or her innocent in addition to the ability to meet the understand standard; and 16 other states used brief and vague definitions of competency to be executed, and simply asserted that any inmate who is “mentally ill” cannot be executed. In 1986, the United States Supreme Court had the opportunity to provide specific guidelines both for raising and evaluating a claim of incompetency for execution. In Ford v. Wainwright, the court ruled that the Constitution’s Eighth Amendment prohibited “cruel and unusual punishment” and therefore prohibited the execution of an “insane” person. The court reasoned: (a) execution of the insane would offend humanity, (b) executing the insane would not serve to set an example and would not reaffirm the deterrence value believed to exist with capital punishment, (c) any individual who is believed to be insane is also believed unable to prepare “spiritually” for death, (d) madness itself is punishment and, therefore, negates the punishment value of execution, and (e) no retributive value is believed to be served by executing the mentally incompetent. The court also ruled that when questions of competency for execution were raised, due process entitled a defendant to an evidentiary hearing. Further, the court stated that this evidentiary hearing is required only when defendants make a “high threshold showing” that their competency to be executed is in question. The justices, however, did not define the precise nature of the “high threshold.” Moreover, when such

242

Patricia A. Zapf

a threshold was met, a majority of justices could not agree on the specific fact-finding procedures: four justices required full “panoply” of trial-type procedures; three justices argued that a more relaxed hearing was acceptable if due process was ensured; and two justices argued that the most minimal “pro forma” procedures were acceptable. In addition to being divided on the fact-finding procedures, the Court also failed to specify a proper legal test of incompetence in the execution context. Melton, Petrila, Poythress, and Slobogin (1997) noted that the Supreme Court failed to provide single legal standard or specific guidelines for evaluating this type of competency because the very issue was never raised. Only Justice Powell, in his concurring opinion, addressed the issue of the legal test for competency for execution, stating that the Eighth Amendment “forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it” (Ford v. Wainwright, 1986, p. 2608). Further, he concluded that the proper test of competency should be whether defendants can comprehend the nature, pendency, and purpose of their execution. Justice Powell argued that the retributive goal of criminal law is satisfied only when defendants are aware of the connection between their crime and the punishment, and defendants can only prepare for death if they are aware that it is pending shortly. Further, Justice Powell asserted that the states were free to adopt “a more expansive view of sanity” which included the “requirement that the defendant be able to assist in his own defense” (p. 2608). Despite the charge given to individual states to develop procedures to ensure that the insane would not be executed, many states provide no specific guidelines for evaluating competency for execution, and those guidelines that do exist vary widely. The Ford v. Wainwright decision established that it was unconstitutional to execute the insane and set the stage for psychological evaluations of death row inmates whose mental status for execution is questionable; however, the Ford court left open two critical issues. First, the court did not specify the necessary fact-finding procedures to enforce the Ford decision. Second, the court failed to specify the proper legal test to be implemented in cases of competency for execution (see Ex parte Jordan, 1988). Since the Ford decision, only a handful of cases addressing competency for execution have been decided, each attempting to define more clearly the facts set forth in Ford v. Wainwright. Three state rulings that followed directly after Ford are representative of the ways in which Ford raised more questions than it answered. In 1987, a divided Florida Supreme Court dissolved a stay of execution and upheld the trial court’s determination that the defendant understood the reasons he was given the death penalty. In Martin v. Fla., the defendant argued that the trial court did not distinguish between a “rational and factual” understanding of why the death penalty was to be carried out (p. 189). The Florida Supreme Court asserted that rational versus factual understanding pertained to competency to stand trial, not competency for execution. The Florida Supreme Court further concluded that Martin’s belief that his conviction resulted from a satanic conspiracy did not negate his rational understanding of why he was being executed. In 1988, the Court of Criminal Appeals of Texas was faced with the issue of competency for execution (Ex parte Jordan). After the trial, the defendant, Jordan, was found incompetent to face execution under the criterion set forth in Ford v. Wainwright. The trial court, noting the lack of any Texas statutes specifying the

Competency for Execution

243

procedures to be followed in raising and determining a defendant’s competency for execution, then created its own procedure requiring that a psychiatric examination of the defendant be conducted every 90 days. The defendant subsequently petitioned for a writ of habeas corpus asking the appeals court to set aside his execution and order his transfer to a state hospital for treatment. The appellate court argued that a defendant judged incompetent for execution was not legally entitled to have his execution set aside, but was only entitled a stay of execution pending regained competency. Further, the court denied Jordan’s request for transfer to a state hospital for treatment, stating that the Ford statute only prohibits execution of the insane and does not mandate treatment. The court also noted the Texas statute prohibits any transfers of inmates on death row and Jordan’s request for transfer would be in direct violation of statutory language and intent. In 1990, the Washington Supreme Court argued that adoption of a broader “ability to assist” test, as allowed by Ford, and any other definition of competency for execution in the state of Washington “must be based on the common law or the Washington State Constitution” (Wash. v. Harris, p. 65). The standard for competency for execution in the state of Washington was set forth in Wash. v. Rice (1988). According to Rice, a defendant is incompetent for execution if unable to understand that he or she has been sentenced to death and/or is unable to communicate rationally with counsel. In Harris, the Washington Supreme Court defined the criterion of “able to assist” to mean that the defendant is not required to be able to think of new issues for counsel to raise or to recall events surrounding the crime, but rather, the defendant must understand that he [or she] has “been sentenced to death for murder and be able to communicate rationally with counsel” (1990, p. 65). Relying on cases involving competency to stand trial, the Court held that a defendant is competent to be executed if he [or she] is, “capable of properly appreciating his [or her] peril and of rationally assisting in his [or her] own defense” (p. 65). The Court also stated that the standard of ability to assist “applies equally in the context of a person’s insanity at the time of punishment as it does at the time of trial” (p. 65). Finally, the Washington Supreme Court argued that the appropriate parties were responsible for informing the court of any change in the defendant’s condition that would result in the dissolution of the stay of execution. The American Bar Association (ABA) has also expressed interest in the issue of competency for execution and has adopted its own specific standard (as presented in the ABA Criminal Justice Mental Health Standards, 1989), consisting of two parts. The first part states that “Convicts who have been sentenced to death should not be executed if they are currently mentally incompetent. If it is determined that a condemned convict is currently mentally incompetent, execution should be stayed” (p. 290). This part of the ABA Standard reflects both the constitutional and common-law prohibition against executing any defendant currently judged to be incompetent. According to the commentary presented in the ABA Criminal Justice Mental Health Standards (1989), the reason for this part of the standard is to preserve both the sanctity and integrity of the criminal justice system. The ABA stated that “The integrity of the criminal justice system is eroded by the execution of a defendant who is incapable of understanding the penalty that is about to be imposed or who is unable to communicate exculpatory or mitigating information that might affect the decision regarding capital punishment” (p. 291). Indeed, this part of the ABA’s

244

Patricia A. Zapf

standard reveals their zealous concern for preserving the integrity of the criminal justice system rather than providing sympathy for the sentenced convict. The ABA also provides a legal test to determine competency for execution. This legal test is defined in the second part of the standard and reads: A convict is incompetent to be executed if, as a result of mental illness or mental retardation, the convict cannot understand the nature of the pending proceedings, what he or she was tried for, the reasons for the punishment, or the nature of the punishment. A convict is also incompetent if, as a result of mental illness or mental retardation, the convict lacks sufficient capacity to recognize or understand any fact which might exist which would make the punishment unjust or unlawful, or lacks the ability to convey such information to the court. (p. 290)

The ABA’s standard of competency for execution follows directly from the Supreme Court’s decision in Ford and from several state statutes; however, the standard differs in that it employs the term incompetent rather than the terms insane or insanity used in earlier case laws and statutes. These latter terms were rejected primarily because of their customary use in the context of criminal responsibility. Specifically, the ABA believed that the terms might result in the erroneous conclusion that the appropriate inquiry for competence to be executed is identical to that involved in determining criminal responsibility. Zapf (2002) commented on the relatively low standard of competence for execution as set out by the Ford decision, and the necessity for evaluators to perform comprehensive assessments of all relevant aspects of competency—including those that go above and beyond the standard set out in Ford (such as some of the issues raised in the ABA’s standard). The argument is that competence-related abilities such as rational understanding and appreciation (in addition to factual understanding) need to be addressed in the evaluation and discussed in the report to court so as not to interpret the Ford criteria for the court, but rather to describe all relevant aspects of competency to both educate the courts and to allow the courts to make an informed decision in each case. Research and Commentary on Competency for Execution Research on Competency for Execution There has been a dearth of empirical research conducted on competency to be executed. Part of the explanation may be the fact that only a handful of individuals have made successful claims of incompetency to be executed. In addition, this particular type of competency tends to evoke strong emotion in individuals, which, in turn, may impact upon the motivation of involved professionals to conduct research in this area. The limited amount of empirical research that has been conducted has been confined to surveys, usually of legal professionals (e.g., Miller, 1988). No studies thus far have examined the issue of competency to be executed in a sample of offenders sentenced to death. Four studies have investigated the attitudes of mental health professionals on issues of competency for execution. In 1982, a time when many states were reinstituting the death penalty and thus guidelines for capital participation were being put forward

Competency for Execution

245

by the American Psychological Association (APA) as well as independent authors, White surveyed the attitudes of a sample of 72 psychologists in attendance at the conference of the Ohio Psychological Association to determine their level of agreement with the various proposed participation guidelines. The vast majority (90%) of the respondents reported having forensic experience and 57% reported testifying in court at least once. White found that most participants (72%) supported the participation of psychologists in capital cases when proper guidelines were implemented; 4% believed that no restrictions should be implemented and 18% were against participation completely. Deitchman, Kennedy, and Beckham (1991) examined whether attitudes towards the death penalty and attributions of criminal responsibility predicted willingness to participate in competency evaluations in a sample of 222 psychologists and psychiatrists who responded to a mailed questionnaire. Deitchman and colleagues found that forensic examiners who expressed a willingness to participate in competency for execution evaluations, compared to those who were unwilling, were significantly more likely to be in favor of capital punishment and significantly less likely to view participation as a violation of professional ethics. In addition, Deitchman and colleagues found a significant association between actual and predicted classifications of willingness using a combination of attitude and attribution characteristics. Leong, Silva, Weinstock, and Ganzini (2000) surveyed 290 board-certified forensic psychiatrists regarding their views on capital punishment and physician-assisted suicide. Leong and colleagues found no significant effects for any demographic variables—including age, importance of religion, and region of practice—on views towards capital punishment or participation in capital cases, and they found age to be the only variable related to participation in competency restoration, with older participants being more likely to support such participation. Pirelli and Zapf (in press) surveyed 231 forensic psychologists regarding their attitudes and practices with respect to capital participation. These researchers found that opposition to participation in six types of capital evaluations (competency to waive Miranda, competency to stand trial, competency to waive counsel, violence risk assessment, competency to be sentenced, and competency to be executed) was predicted by religiosity, views on the death penalty, personal values, and self-reported adequacy of experience/training specific to participation in capital cases. In addition, while most forensic psychologists were not opposed to participation in all other types of criminal forensic evaluations in the capital context, only 46% indicated a willingness to participate in competency for execution evaluations. Current practices in the evaluation of CFE. To evaluate current practices in the evaluation of competency for execution and identify assessment issues considered important by professionals who conduct this type of evaluation, Zapf, Boccaccini, and Brodsky (2003) interviewed seven mental health professionals who had been involved in evaluating competency to be executed. The practicing professionals were asked about their past experiences with specific cases in an attempt to determine how they conceptualized the nature of this type of competency and the pertinent issues involved in conducting this type of evaluation. All seven of the mental health professionals interviewed held a Ph.D. degree; one also held a J.D. and one held a M.S.Ed. degree in addition to the Ph.D. Two

246

Patricia A. Zapf

individuals had conducted (or were actively involved in) competency for execution evaluations during the current year (in Arkansas and Tennessee), three others had conducted their last evaluation of this type in the 1990s (in Alabama, Missouri, and Texas), and two of the professionals last conducted a CFE evaluation in 1989 (in Utah and Arkansas). When asked about current practices in the evaluation of competency for execution, the professionals identified a number of components that they believed make up the structure of a thorough CFE evaluation. Identified components included reviewing case materials, prison records, medical records, trial transcripts, and psychiatric records (including those during and prior to the offender’s incarceration on death row); examining statutes or relevant court decisions to determine the applicable criteria for a given jurisdiction; consulting with the retaining attorney; interviewing and conducting psychological or other relevant testing with the offender; interviewing family members of the offender, prison officials and correctional officers, and other offenders who have had contact with the offender; and observing the offender in his cell on death row. The evaluators reported using a number of different psychological tests during CFE evaluations including3: the MMPI (or MMPI-2), MCMI (or MCMI-II), PAI, SADS, or PSE to assess psychopathology and test-taking style; the SIRS, VIP, or Rey 15 to assess malingering (when indicated); the WAIS-R4, Shipley, TONI, or KFAST to assess intellectual functioning or to diagnose mental retardation; the PPVT-R to assess language functioning; the BEERY or BNT to assess dementia; the PCL-R to assess psychopathy (when indicated); the IFI to assess reasoning ability; and the Halstead-Reitan to assess neuropsychological functioning (when indicated). There was some disagreement about whether or not to use projective techniques for this type of evaluation, with one professional indicating that he would use the Rorschach “when indicated,” and another stating that he would “never” use the Rorschach or any other projective technique for this type of evaluation. None of the other CFE evaluators mentioned projective techniques. In response to inquiries about the assessment of the specific criteria for incompetency, all of the evaluators indicated that they asked the offenders specifically about each of the relevant criteria (for their respective jurisdictions). All of the evaluators reported that they focused specifically on the offender’s understanding of death and the reasons for it. Three of the evaluators indicated that they made an attempt to assess the offenders’ reasoning abilities, in addition to simple factual understanding, with respect to death. When asked about the most challenging aspects of the evaluation of an offender’s competency for execution, three global issues were identified: (1) the nature of the inquiry itself and the gravity of the consequences, (2) the difficulty the evaluator may experience in trying to remain objective, and (3) the evaluator’s own personal difficulties with the death penalty. With regard to the gravity issue, the CFE evaluators reported feeling that the magnitude and the immediacy of the consequences for the offender had an impact upon their evaluation in terms of the amount of time and energy they put into ensuring that they conducted a thorough and comprehensive evaluation. With regard to objectivity, one professional, speaking candidly, indicated that he found it difficult

Competency for Execution

247

to maintain objectivity for three reasons: (1) you become sharply aware of your own personal beliefs about the death penalty, (2) you get to know the offender and may not see anything to prevent the offender from being executed, and (3) it is difficult to resist the pull to affiliate with the attorneys who retained you as the case is always presented to you from their point of view. Finally, with regard to the personal difficulties, several CFE evaluators reported feeling that this type of evaluation can be emotionally difficult for the evaluator because the task forces the evaluator to deal with his or her own feelings and beliefs about capital punishment. When asked if they would consider conducting another CFE evaluation in the future, six of the seven evaluators indicated that they would. Each of these evaluators felt that they were prepared to do these evaluations with what they perceived as the necessary amount of comprehensiveness and scrutiny. In addition, they felt that they would be leaving this task to someone who might not do as thorough a job if they declined. The one evaluator who indicated that he would not conduct another CFE evaluation stated that he has had a change of heart with respect to capital punishment and no longer considers the death penalty to be an acceptable form of punishment. This evaluator believes that individuals who conduct this type of evaluation have to be in favor of the death penalty. The other evaluators were not polled about their opinions on this matter. Specific problems that were encountered by these professionals in conducting CFE evaluations included difficulty in accessing medical records from other facilities, difficulty in finding a proper setting for this type of evaluation, difficulty in gaining access to the offender at times (i.e., they are required to interview behind glass at some facilities), difficulty in establishing or maintaining rapport with embittered offenders or those who refused to cooperate, and insufficient allocation of resources by the court (i.e., in terms of time required to obtain all the relevant records as well as compensation) . When asked to give their opinions about their respective jurisdiction’s criteria for incompetency for execution, most of the evaluators indicated that they believed the criteria to be very minimal standards that were patterned after Ford, which has a very low threshold for competence. Several evaluators felt that the courts interpret the Ford criteria as factual understanding, whereas they believe that the courts should consider the higher standard of rational understanding when making CFE determinations. Similarly, when asked about the most difficult aspect of the CFE criteria to assess, a number of evaluators indicated that it was difficult to distinguish between a factual and rational understanding of death. One evaluator stated that this was especially the case given that there is no “gold standard” for understanding death. When asked how they might change the CFE criteria if they could, a number of CFE evaluators stated that they would further define the required level of understanding.

Commentary on Competency for Execution There has been more commentary on the assessment of competency to be executed than there has been research. Heilbrun (1987) discussed the implications of the Ford decision for the assessment of competency to be executed and made five practical suggestions. First, with regard to the mental health professionals who are selected to

248

Patricia A. Zapf

evaluate an inmate’s competency to be executed, Heilbrun argues that these evaluators need to have demonstrated skill in general clinical as well as clinical-legal areas. In addition, he makes the case that these professionals need to be chosen in a manner that eliminates the possibility of any systematic bias operating in the evaluation. For example, systematically eliminating (or including) only those evaluators that favor the death penalty from the potential pool of professionals who will conduct these evaluations may serve to introduce bias into the process that may not have otherwise existed. Second, Heilbrun contends that evaluators must (and, in fact, are ethically obliged to) inform any individual of the nature and purpose of a forensic evaluation before beginning. This is especially true in the case of competency to be executed. Evaluators should attempt to ensure that the inmate understands this notification of purpose (e.g., present the information using easily-understood language; ask questions to attempt to determine the inmate’s understanding of the information). Third, Heilbrun emphasizes the importance of a comprehensive evaluation. That is, including an assessment of intellectual functioning, personality characteristics, and motivation in addition to symptoms of psychopathology; having more than one contact with the inmate whose competence is being evaluated; an assessment of the possibility of malingering; and the use of collateral or third-party information. Fourth, the circumstances of the evaluation, which include the people who are present in the daily life of the inmate as well as the physical environment, need to be taken into consideration by the evaluator. Finally, Heilbrun underscores the importance of comprehensive documentation, usually in the form of a written report, to assist the decision maker and to allow others access to the procedures and reasoning processes used by the evaluator. Heilbrun and McClaren (1988) discussed the assessment of competency for execution in terms of both preadjudication (before a formal legal judgment about an inmate’s competency for execution has been made) as well as postadjudication (after an inmate has been legally deemed incompetent for execution). Given that only a handful of individuals have ever been found to be incompetent for execution (and would therefore require postadjudicative assessment of this type of competency), preadjudicative assessment of competency for execution is certainly the more prevalent type of assessment. Of course, the reader must keep in mind that assessments of competency for execution are much less common than assessments of almost any other type of competency. With regard to the preadjudicative assessment of competency for execution, Heilbrun and McClaren (1988) outlined a number of “minimum requirements for performing an excellent evaluation” and suggested that evaluators make their participation contingent upon having these minimum requirements met (p. 208). In addition, Heilbrun and McClaren argue strongly for the formal assessment of intellectual functioning, motivation, and psychopathology using well-validated and standardized assessment instruments. With respect to the legal criteria that need to be assessed, evaluators should be aware of the particular legal criteria that define the standard for competency within the relevant jurisdiction. If the criteria for competency for execution within a particular jurisdiction are not specified, Heilbrun and his colleagues (Heilbrun, 1987; Heilbrun & McClaren, 1988) advise that evaluators should consider the standard in

Competency for Execution

249

its broadest form and then leave it up to the court to determine what is applicable and what is not. As previously mentioned, Zapf (2002) argues that, regardless of the specific criteria set out in a particular jurisdiction, a comprehensive evaluation of all relevant aspects of competency for execution be conducted and delineated in the report to court. With regard to the postadjudicative assessment of competency to be executed, Heilbrun and MacClaren (1988) maintain that evaluators who are involved in the assessment of competency for execution at this stage should be independent of those who are responsible for treating the inmate for the purposes of restoring competence. Mathias (1988) also observed the importance of taking the physical and social environment of the inmate into account when evaluating an individual’s mental state on death row. He indicated that there are many variables that operate in the environment of death row that may affect an inmate’s psychological functioning and presentation and that may impact upon a mental health evaluation in a variety of different ways. The nature of a maximum-security setting can have a great impact upon an inmate’s mental health and may affect competency status. Mathias argued that evaluators of an individual’s competency need to consider these variables when conducting evaluations of competency to be executed. Small and Otto (1991) explored the legal context and the clinical aspects of evaluations of competency to be executed. These authors encouraged the use of evaluation techniques that focus on the functional capacity of the inmate. Differing slightly from Heilbrun and his colleagues (Heilbrun, 1987; Heilbrun & McClaren, 1988) with respect to the use of traditional psychological testing, Small and Otto stated, “evaluations that emphasize traditional psychological testing and assessment are unlikely to assist the decision maker in assessing functional abilities” (p. 152; see also Melton, Petrila, Poythress, & Slobogin, 1997). Consistent with this argument is the fact that the education level and/or mental state of many offenders on death row may be problematic in terms of rendering many traditional psychological tests invalid. Small and Otto do, however, concede that psychological testing may assist in identifying the core mental disorder, making treatment recommendations, or detecting the possibility of malingering. Brodsky, Zapf, and Boccaccini (2001) reviewed the legal, ethical, and professional ambiguities regarding the assessment of competency for execution and gave the following ten recommendations for practice (pp. 21–23): 1. The temperament issue. Not for the timid or faint of heart. The preceding review has marked a number of dimensions on which CFE evaluators may expect personal or professional controversies and uncertainties. Because assessments are part of contentious, politicized, and life-or- death proceedings, participation requires a clear vision of the tasks and an internal locus of motivation and control. 2. The impact issue. CFEs are low demand, high impact evaluations. Relatively few are conducted. Indeed, CFEs probably represent the lowest incidence of any competency assessments. The opinions and reports will be publicized, debated, and often quickly linked into other issues quite apart from the legal–psychological issues. 3. Objectivity. A profound commitment to objectivity and detachment is needed in CFE assessments. Although all forensic work calls for objectivity, the deeply held opinions about the death penalty and ukases against professionals engaging in any

250

4.

5.

6. 7.

8.

9.

10.

Patricia A. Zapf

activity relating to capital punishment means that evaluators must be able to define and maintain a scrupulously objective posture Specific Legal Foundations. Knowledge of applicable statutory and case law is essential. Such law is not routinely taught or communicated in day-to-day forensic practice, and evaluators may have to seek it out. Ford. Extrapolation of Ford v. Wainwright to psychological constructs is neither simple nor obvious. It draws on scholarly and legal literature and operational definition of ambiguous constructs. Structure. Use a systematic, structured approach to CFE assessments. The methodology should not be exclusively case specific but driven by the Ford and other legal constructs. Collateral Information. Redefining of collateral information. Current history is a central issue. Other death row inmates, officers, medical staff, and psychological sources should be interviewed. Situational and contextual factors. Being on death row, under a sentence of death, and living in this particular environment all can have an effect. These situational factors need to be assessed. Measures and instruments. This specific forensic issue is without quantitative and qualitative measures. CFE assessors are greatly in need of organized, useful, reliable methodology. The desirable first steps en route to standardized CFE assessment instruments are a CFE checklist for assessors and death appreciation measures. The Threshold Issue. A high legal threshold exists for not being CFE, with almost all CFE findings being competency. The assessor must walk a thin line, not anticipating the ultimate decision, but at the same time providing enough psychological information to allow the fact-finders to address the legal threshold.

Evaluation of Competency for Execution Minimum standards for CFE evaluations should parallel those standards that apply to other types of forensic assessments. That is, standardized procedures that are used during the evaluation should be described to the subject of the evaluation as well as in the examiner’s report, assessment measures should be relevant to the referral issue(s), and the examiner should have a sound and sophisticated conceptualization of the criteria for being not competent for execution. In addition, the knowledge base of examiners should cover three domains: general legal competencies, forensic assessment methodologies, and execution related substantive content. Finally, collateral information should be gathered. This might include (but would not be limited to) information regarding life history, psychological history and disorders, deteriorationrelated data, previous and current written reports, and interviews with persons who have had extensive opportunities to observe the evaluee. Although minimum standards for competency for execution evaluations can be identified, these should not be equated with professional standards or guidelines for these evaluations. Professional standards or guidelines are more encompassing than minimum standards and form the basis for sound forensic practice. Whereas an evaluation that meets only the minimum standards might address the relevant issue in a perfunctory manner, an evaluation that also meets professional standards or guidelines would go above and beyond simply addressing the issue in an obligatory manner. An evaluation that meets minimum standards might be a brief,

Competency for Execution

251

narrowly-focused, concrete and surface inquiry into the psycholegal issue5; however, evaluations that meet professional standards should include informative and useful statements about the individual being evaluated and supply a detailed analysis of the issue to be addressed in the form of observations and statements that provide justification for the findings and opinions. An evaluation that meets professional standards should not only be useful to the court, it should ultimately be defensible in court. What follows is a discussion of the framework and approach for evaluations of competency for execution that would meet professional standards as well as a brief case example. The astute reader will note that many of these recommendations have been extrapolated from various other types of competency evaluations. As Zapf, Viljoen, Whittemore, Poythress, and Roesch (2002) noted when summarizing the past and surmising about the future of competency research and practice, it will be important to be familiar with all aspects of the literature on competency to stand trial as this is the most well-developed literature of all the criminal competencies, and practice and research regarding the various other types of criminal competencies—and especially competency to be executed—will benefit by extrapolating from this literature.

Knowledge Base Before conducting a CFE evaluation, evaluators should be familiar with the relevant statutes, definitions, and criteria for competency for execution that exist within their jurisdiction. In addition, CFE evaluators should be familiar with the procedural aspects of competence for execution cases within their jurisdiction (i.e., knowing how, when, and by whom the issue of competence for execution may be raised; who determines that an evaluation is to occur; procedures specific to the evaluation process). A competent evaluator should be knowledgeable about these legal requirements and procedures before beginning an evaluation of CFE. As in other types of forensic evaluations, the evaluator should consult with whoever has ordered the evaluation to clarify the referral question and to ensure that all parties involved understand what is to be evaluated.

General Evaluation Procedures and Considerations CFE evaluations should be conducted in a place with adequate space and privacy that is free from distraction. In addition, CFE evaluators should seek to meet with the offender on more than one occasion as part of an assessment of consistency, deterioration, improvement, and other changes. Finally, CFE evaluations should include a clinical-forensic interview in which the offender’s psychiatric history, symptom validity, and understanding of the relevant legal criteria for CFE in the particular jurisdiction are assessed. The relevant psycholegal criteria should be assessed in a structured and replicable manner. The information gained from the interview should be considered in light of collateral information that has been collected. It is important for the evaluator to be clear about the referral question as well as his or her role in the evaluation. It may be the case that an evaluator is the only expert

252

Patricia A. Zapf

retained or he or she may be one of several and assigned to evaluate a specific aspect of functioning (e.g., mental retardation). In this instance, it would be necessary for the evaluator to be clear about the boundaries of the specific case. Clinical–forensic interview. At the beginning of the forensic interview, CFE evaluators should inform the offender of the nature and purpose of the evaluation, the possible outcomes of the evaluation, for whom the evaluation is being performed, who will have access to the results of the evaluation, and the consequences of not participating in the evaluation. Any indication of a lack of understanding on the part of the offender should be noted and appropriate measures taken to determine whether or not to continue with the evaluation. During the interview, evaluators should assess the offender’s understanding of the relevant information in the jurisdiction, the offender’s appreciation of his or her situation, and his or her reasoning about these issues. In addition, the evaluator should inquire about the offender’s previous and current psychological functioning and psychiatric history as well as any medication that the offender may be prescribed and its effect on the offender. Assessment measures. CFE evaluators should be aware of the psycholegal abilities required of a competent offender. In the absence of a standardized assessment instrument specifically developed to assess the psycholegal criteria for a given jurisdiction, the evaluator should operationalize the applicable psycholegal criteria. Evaluators should focus on the functional abilities of the offender, in addition to the mental state of the offender and the appropriate diagnosis of a mental disorder, and should document how any functional deficits may be causally related to mental, emotional, or intellectual deficits. If it is a requirement of the jurisdiction that the offender be able to assist his or her attorney, then a true functional assessment would include observing the interaction of the offender with his or her attorney and attempting to determine whether or not the offender is able to assist the attorney (e.g., disclose relevant information to the attorney and understand what it is that the attorney is attempting to accomplish). As death row offenders are disproportionately intellectually limited and academically deficient (Cunningham & Vigen, 1999, 2002), it is important for evaluators to use language that is straightforward and understandable when evaluating a particular offender. If a particular offender holds a known delusional system, it would be important for an evaluator to assess this delusional system directly with respect to the execution process, the reasons why this individual is to be executed, and what it means to be executed, as well as the offender’s beliefs about the perceived role that his or her attorney plays in this process. Finally, CFE evaluators should examine the possibility of response sets such as defensiveness, uncooperativeness, or malingering. Every effort should be made to use instruments that have established reliability and validity; after all, the motivation to malinger in this situation may be high. It may be necessary to use an instrument specifically designed to evaluate the potential for malingering or the authenticity of reported symptoms. The evaluator should use other psychological tests in the evaluation of CFE as indicated in a particular case (e.g., use neuropsychological tests if there is some question of cognitive or neuropsychological impairment). Collateral information. CFE evaluators should collect collateral information about the offender’s previous and current functioning, as well as his or her functioning

Competency for Execution

253

while on death row (including any specific behaviors that the offender has engaged in that might be relevant to psycholegal understanding6). Friends and family of the offender who can comment on previous and current functioning and characteristics should be interviewed. Correctional officers, prison physicians and psychologists, and other prisoners should be asked to comment on the behavior of the offender while in the institution. Medical records and psychiatric history both within and outside of the correctional institution should be gathered and evaluated.

Presentation of the Results of the Evaluation CFE evaluators should carefully document the evaluation procedures as well as all other relevant information. Record keeping, note taking, and recording7 the interview are important considerations and should be meticulous as these assessments are likely to undergo serious scrutiny. It is good practice for CFE evaluators to speak to the individual who retained their services before preparing a report. Although it remains arguable whether CFE evaluators should speak to the ultimate legal issue, they should certainly present the evidence before the triers of fact in a manner that will be of assistance in reaching a decision about whether the offender is capable of a specific psycholegal ability or required capacity (e.g., include a full history, observations, and testing including descriptions or observations of the offender and perhaps extensively quoting the offender’s responses).

Measures of Competency for Execution To date, there have been less than a handful of published measures of competency for execution. As was the case with competency to stand trial, the first measures have taken the form of checklists or aide mémoires for evaluators. Given that the research on competency for execution is in its infancy, when compared to the literature on competency to stand trial, it is expected that these checklists will be further elaborated and expanded in the future as the research and literature in this area continues to develop. Interview Checklist for Evaluations of CFE. Zapf, Boccaccini, and Brodsky (2003) published a checklist for evaluations of CFE. This checklist was compiled after reviewing the available literature on criminal competencies, reviewing the available case law on competency for execution, and conducting interviews with professionals who have been involved in conducting evaluations of competency for execution (the reader is referred to Zapf, Boccaccini, & Brodsky, 2003 for full details). The checklist is divided into four sections: (1) understanding the reasons for punishment, (2) understanding the punishment, (3) appreciation and reasoning (in addition to simple factual understanding), and (4) ability to assist attorney. These four sections are representative of the legal criteria for CFE that have been set out by various states (see Acker & Lanier, 1997; Harding, 1994). Most states model their statutes after the criteria set out in Ford and, therefore, only consider the prisoner’s ability to understand the punishment that is being imposed

254

Patricia A. Zapf

and the reasons why it is being imposed. The first two sections of the checklist parallel these two Ford criteria. The first section targets the offender’s understanding of the reasons for punishment. That is, his or her understanding of the crime and other conviction-related information. Specific topic areas include the offender’s understanding of the reasons why he or she is in prison; his or her place of residence within the prison; the crime for which he or she was convicted, including an explanation of the criminal act and victim identifying information; the perceived justice of the conviction; reasons why other people are punished for the same offense; and any self-identified, unique understandings of the offense and trial that the offender might have. The second section targets the offender’s understanding of the punishment: that is, that the punishment he or she is facing is death. Specific topic areas include the offender’s understanding of the sentence, the meaning of a sentence of death, what it means for a person to be dead, specific understandings about death from execution, and the reasons for execution. Questions about death are asked from a number of different angles (e.g., meaning of death, specific understandings about death from execution) so as to facilitate a thorough evaluation of any irrational beliefs or ideas that the offender may hold regarding death. The literature on other types of competence (e.g., competence to consent to medical treatment) indicates that there is often a relationship between the severity of the consequences (to the individual being assessed) and the stringency of the standard used to evaluate competence (e.g., see Roth, Meisel, & Lidz, 1977). Thus, given the gravity of the consequences in the particular instance of CFE, it seems appropriate and important to assess the offender’s appreciation and reasoning abilities (in addition to simple factual understanding). Therefore, the third section of the checklist lists topic areas specific to the assessment of an offender’s appreciation and reasoning abilities with respect to death and execution—areas that may go above and beyond the specific Ford criteria but that are arguably important to a comprehensive evaluation of competency for execution. Specific content areas in this section include the offender’s appreciation of the personal importance of the punishment and the personal meaning of death; the offender’s rationality or reasoning about the physical, mental, and personal changes that occur during and after execution; beliefs regarding invulnerability; inappropriate affect; acceptance or eagerness for execution; and beliefs against execution. Although the Ford criteria are often interpreted as dealing with the offender’s factual understanding, it appears justified that mental health professionals involved in CFE evaluations should also assess the offender’s appreciation and reasoning and leave it to the court to determine how to interpret the Ford (or other relevant) criteria in each specific case. Finally, the last section of the checklist identifies issues related to the offender’s ability to assist his or her attorney. This section will be especially relevant in jurisdictions that rely upon criteria that are broader in nature than those outlined in Ford, such as the capacity to comprehend the reasons that might make the capital sentence unjust and to communicate these reasons effectively. Specific topic areas in this section include the identity of the offender’s attorney and the amount of time that the attorney has been working for the offender, the offender’s trust in the attorney, awareness of the execution date, status of appeals, what the attorney is attempting to accomplish through the appeals, how the appeals will be processed and assessed, the actual

Competency for Execution

255

substance of the appeals, important content that the offender may have withheld from the attorney, and any pathological reasons for not planning or discussing appeals. The purpose of the checklist is to guide evaluators through the interview portion of a CFE evaluation. As is the case with any forensic assessment instrument, all relevant issues for a particular case may not be addressed. Thus, evaluators need to remain mindful of this and pay special attention to additional, relevant issues that may arise. The checklist includes specific areas of inquiry for each of the topic areas; however, specific questions were deliberately not included so as to encourage evaluators to develop their own style of questioning for each of the content areas. Of course, as is the case for any type of forensic evaluation, it is important for evaluators to phrase questions in such a way so as not to lead the offender to exaggerated or malingered pathological responses. Instrument to evaluate an inmate’s level of competency. Ebert (2001) published an overview and commentary on competency for execution that included a table of 12 items that he called “A proposed competency to be executed instrument.” The twelve items are as follows: (1) ability to identify what is about to happen, (2) ability to understand and conceptualize that the person is housed on death row, (3) ability to understand the meaning of the term and concept of punishment, (4) ability to work with attorney, (5) ability to understand the sentence of death, (6) ability to understand the reason for the punishment of death, (7) ability to conceptualize what will happen when the punishment is carried out, (8) ability to describe the role of key people involved in the punishment, (9) ability to provide recent facts that may be helpful to deal with the issue of current competency, (10) ability to voluntarily control thoughts, (11) ability to perceive reality in the present, and (12) self-serving versus self-defeating motivation. Ebert provides a 6-point scale on which each item is to be rated: 0 = no capacity, 1 = some incapacity, 2 = mild incapacity, 3 = moderate incapacity, 4 = severe incapacity, and 5 = severe incapacity. No elaboration regarding how to determine the level of capacity or incapacity for each of the 12 areas is given and he provides no explanation for how a rating of a 4 or a 5 differ from each other (with both being called severe incapacity). In addition, Ebert does not indicate whether or how one is to use the ratings for making a determination about an individual’s competency for execution. Competency for Execution Research Rating Scales (CERRS). The Competency for Execution Research Rating Scales were developed to assist mental health professionals in the evaluation of competency for execution (Ackerson, Brodsky, & Zapf, 2005) and is the only instrument that has been the focus of research. The CERRS was developed from a survey of judges authorized to give death penalty sentences regarding those content areas that were important for determining competency for execution and is comprised of four sections: (1) understanding and appreciating punishment, (2) understanding and appreciating death, (3) capacity to work with counsel, and (4) relevant clinical information. The first section is comprised of eight items that evaluate an inmate’s understanding and appreciation of punishment, including: global understanding of punishment, understanding of why the inmate is being punished by the legal system, appreciation of punishment, understanding that the inmate has received the death penalty, appreciation of the death penalty, capacity to appreciate that the death penalty is

256

Patricia A. Zapf

impending, understanding of the crime, and appreciation of the crime. The second section is comprised of two items: understanding of death and appreciation of death. The third section consists of four items surrounding the capacity to work with counsel, including: the ability to converse with counsel, ability to make a rational choice about working with counsel, understanding of legal issues, and ability to provide information that would make the punishment unjust. The final section consists of three items, each corresponding to a relevant area of clinical information, including: severity of mental illness, severity of deficits in cognitive abilities (including memory capacities, reasoning skills, and comprehension skills), and impairment of judgment and insight. Each of the items in each section is to be considered by the evaluator and rated on a five-point likert-type scale in terms of the degree of incapacity: 1 = severe, 2 = moderately severe, 3 = moderate, 4 = mild, and 5 = none. The items are not to be summed but, rather, are to be considered by the evaluator within the context of each inmate’s individual case. In addition to publishing the CERRS, Ackerson, Brodsky, and Zapf (2005) also reported the results of research conducted with the CERRS. Ninety forensic-clinical psychologists were asked to make CFE judgments for 9 fictional vignettes; approximately half (n = 41) were given the CERRS to aid in their judgments while the other half (n = 49) were not. Results indicate that judgments made by the two groups differed significantly for those vignettes wherein the legal criteria were ambiguous (as opposed to clearly either meeting or not meeting legal criteria for CFE), with the group given the CERRS to aid in their judgments being more likely to be influenced by legal information presented in the vignettes. It was also found that 48% of the variance in the judgments made by the group given the CERRS was accounted for by both legal criteria and diagnostic symptomatology (as compared to 37% of the variance in the group not given the CERRS to use); thus, it appears that the CERRS guided respondents to consider both legal and clinical factors when making judgments about competency for execution.

Response Styles As previously mentioned, and as is the case with any forensic evaluation, it is important to consider and evaluate the possibility of various response sets in the evaluation of competency for execution. Given that the outcome of a competency for execution evaluation is important, literally, to the life or death of an individual, motivation to malinger may be high. Evaluators need to evaluate, informally if not formally, the possibility that the evaluee might be malingering in every competency for execution evaluation. Two types of malingering can occur in any forensic evaluation—falsely claiming or exaggerating psychiatric symptomatology or cognitive deficits. If an informal evaluation of malingering leads an evaluator to suspect that an evaluee is exaggerating his or her symptomatology (psychiatric or cognitive), a formal evaluation of malingering should be undertaken as part of the CFE evaluation. Instruments that have established reliability and validity and that were specifically designed to evaluate the potential for malingering or the authenticity of reported symptoms should be

Competency for Execution

257

used for this purpose. With respect to the false production or exaggeration of psychiatric symptoms, forensic assessment instruments such as the Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, 1992) or the Miller Forensic Assessment of Symptoms Test (M-FAST; Miller, 1995) would be appropriate for use. Forensic assessment instruments such as the Test of Memory Malingering (TOMM; Tombaugh, 1996) or the Validity Indicator Profile (VIP; Frederick, 1997) would be appropriate for the evaluation of malingered cognitive deficits. The available research on death row offenders indicates that they are disproportionately intellectually limited and academically deficient (Cunningham & Vigen, 1999, 2002); therefore, it is important for evaluators to consider this alongside the possibility of malingering cognitive deficits. The sensitive nature of CFE evaluations, in general, coupled with the potentially devastating consequences of being mislabeled a malingerer should underscore just how important it is for an evaluator to be as sure as possible of the true mental state of the individual being evaluated. Case Example Mr. Smith is a 48-year-old African-American who was convicted of first-degree murder 6 years ago and sentenced to death. Since being sentenced, Mr. Smith has been housed on death row with regular stints in solitary confinement for disorderly conduct and possession of contraband. Mr. Smith’s scheduled date of execution was two months away when his attorney contacted the consulting psychologist to request an evaluation of his client’s competency for execution. At Mr. Smith’s sentencing six years ago the issue of his mental health was raised as a mitigating factor to the crime as he has a lengthy history of major depression with bouts of suicidality and substance use dating back to his early twenties. The issue of Mr. Smith’s competency, however, was not an issue at the time of his trial or at the time of sentencing. Similarly, the issue of mental state at the time of the offense was only raised as a mitigating factor at sentencing, not as a defense to the crime. Mr. Smith’s attorney, a young public defender, has known his client for four months and has briefly met with him two times. The attorney told the consulting psychologist that he was concerned about his client’s competence as Mr. Smith appeared “depressed” and did not seem to care that he was about to be put to death. The consulting psychologist requested and reviewed Mr. Smith’s institutional files for the last six years as well as records from his trial and sentencing. Institutional records revealed that Mr. Smith had been caught in possession of contraband in the form of illegal drugs (methamphetamine, ecstasy, and Ritalin) five times over the last 6 years. In addition, the files indicated that Mr. Smith often got into fights with other inmates and correctional officers. Mr. Smith was placed in solitary confinement ten times over the last 6 years. He was seen by the institutional psychologist each time he was in solitary confinement, as per institutional policy, but otherwise refused to see the psychologist voluntarily. The institutional psychologist noted that Mr. Smith appeared depressed eight of the ten times he was seen in solitary confinement but refused to be seen by the psychiatrist for consultation and possible medication. Institutional records also revealed that Mr. Smith was seen by the prison physician two years ago after overdosing on benzodiazepine in an apparent suicide attempt. The consulting psychologist interviewed Mr. Smith and administered the Structured Clinical Interview for the DSM-IV-TR and the Miller Forensic Assessment of Symptoms. In addition, the psychologist used the Interview Checklist for Evaluations of CFE to

258

Patricia A. Zapf

structure the inquiry regarding Mr. Smith’s understanding, appreciation, and reasoning about his impending execution. The consulting psychologist diagnosed Mr. Smith with Major Depressive Disorder and noted that he was currently experiencing some suicidal ideation. In addition, the consulting psychologist concluded that there did not appear to be any evidence that Mr. Smith was malingering. Mr. Smith appeared to understand that he had been sentenced to death for the murder that he was convicted of 6 years ago, and he appeared to understand that the sentence he received for that crime was death; however, when asked about his impending execution, Mr. Smith indicated that he was “anxious to get it over with” because he was “tired of living this way.” More detailed inquiry into his thoughts regarding his impending execution led the consulting psychologist to believe that Mr. Smith’s depression was impairing his ability to appreciate the personal impact of his impending execution as well as his ability to reason about his execution. After interviewing Mr. Smith, the consulting psychologist spoke with the head correctional officer on Mr. Smith’s housing unit and Mr. Smith’s brother, who had been a regular visitor over the last six years. Both the head correctional officer and Mr. Smith’s brother indicated that Mr. Smith appears to have been depressed for the last number of months. In addition, Mr. Smith’s brother indicated his concern that Mr. Smith “might try to hurt himself,” as he had done in the past, in an attempted suicide and noted that Mr. Smith does not appear to “have any desire to live anymore.” After reviewing and incorporating all data sources (file information; institutional records; interviews with Mr. Smith, his brother, and the head correctional officer; results of the SCID, the M-FAST, and the Interview Checklist for Evaluations of CFE) the consulting psychologist concluded that Mr. Smith appeared to be able to understand the punishment and to understand the reasons for the punishment; however, the consulting psychologist also concluded that Mr. Smith’s depression was impairing his ability to appreciate how the impending execution would personally affect him and was impairing his reasoning abilities and his ability to assist his lawyer with any last minute appeals. The jurisdiction in which Mr. Smith was convicted and sentenced uses the Ford criteria for determining whether an individual is competent for execution; however, given that the Ford criteria appear to set a very low cut-off for competency (as compared with other types of competencies, such as competency to stand trial, for which it might be argued that the repercussions of an incorrect determination of competence are less severe than an incorrect determination regarding competency for execution) and only appear to take into consideration the ability to understand, the consulting psychologist was careful to include information in the report to court regarding all relevant competency-related abilities (understanding, appreciation, reasoning, and assisting counsel). The consulting psychologist was careful to back up all opinions and conclusions with data from the evaluation. It is now up to the court to make a final determination regarding Mr. Smith’s competency for execution.

Conclusions This chapter has provided an overview of the legal issues and decisions pertaining to competency, a review of the commentary and empirical research in this area, and a discussion of the assessment of competency for execution. As is the case with all developing areas within forensic assessment, future work will no doubt continue to expand and elaborate upon the work that has been completed to this point. Perhaps more so than other areas in the field of forensic assessment, research on competency

Competency for Execution

259

for execution is difficult and slow given the relatively small number of evaluations that are conducted each year and the difficulty in accessing this population for research purposes. Researchers and evaluators should be encouraged to continue to extrapolate the information obtained through practice and research on other types of criminal competencies to competency for execution. It is in this way that we will be able to continue to develop this important area of forensic assessment. Endnotes 1. Certiorari: the name given to appellate proceedings to re-examine the action of a trial court or a lower appeals court. 2. ex parte: refers to the situation whereby one party brings an action before the court or a decision is made by the court without the involvement of the other party 3. MMPI = Minnesota Multiphasic Personality Inventory; MCMI = Million Clinical Multiaxial Inventory; PAI = Personality Assessment Inventory; SADS = Schedule for Affective Disorders and Schizophrenia; PSE = Psychological Stress Evaluator; SIRS = Structured Interview of Reported Symptoms; VIP = Validity Indicator Profile; Rey 15 = Rey 15 Item Memory Test; WAIS-R = Wechsler Adult Intelligence Scale–Revised; Shipley = Shipley-Hartford Institute of Living Scale; TONI = Test of Nonverbal Intelligence; KFAST = Kauffman Functional Academic Skills Test; PPVT-R = Peabody Picture Vocabulary Test - Revised; BEERY = Beery Picture Vocabulary Test; BNT = Boston Naming Test; IFI = Interdisciplinary Fitness Interview; PCL-R = Hare Psychopathy Checklist–Revised; Halstead-Reitan = Halstead-Reitan Neuropsychological Test Battery; Rorschach = Rorschach Inkblot Technique. 4. The reader is reminded that the majority of these evaluations were conducted a number of years ago and, therefore, some of the instruments reported, although perhaps out of date now, were not out of date at the time of the evaluation. 5. For instance, an examiner could conceivably conduct the interview portion of a CFE evaluation by asking only two questions: (1) Are you going to die? and (2) Do you know why you are going to die? 6. These might include, but not be limited to, discussions of execution content with correctional personnel or chaplains, writing letters of goodbye or issue resolution, writing a will, giving away possessions, selecting witnesses, or making preferences for a last meal. 7. Video or audio recording is useful in that the evaluator is able to review the evaluation as well as present the tape to complement his or her testimony; however, recording the evaluation is also subject to legal–strategic decisions by the attorney and, therefore, should be discussed with the retaining attorney beforehand.

References Acker, J. R., & Lanier, C. S. (1997). Unfit to live, unfit to die: Competency for execution under modern death penalty legislation. Criminal Law Bulletin, 33, 107–150. Ackerson, K. S., Brodsky, S. L., & Zapf, P. A. (2005). Judges’ and psychologists’ assessments of legal and clinical factors in competence for execution. Psychology, Public Policy, and Law, 11, 164–193. American Bar Association. (1989). American Bar Association criminal justice mental health standards. Washington, DC: Author.

260

Patricia A. Zapf

Appelbaum, P. S. (1986). Competence to be executed: Another conundrum for mental health professionals. Hospital and Community Psychiatry, 37, 682–684. Bonnie, R. (1990). Dilemmas in administering the death penalty: Conscientious abstention, professional ethics, and the needs of the legal system. Law and Human Behavior, 14, 67–90. Broderick, D. (1979). Insanity of the condemned. Yale Law Journal, 88, 533–564. Brodsky, S. L. (1990). Professional ethics and professional morality in the assessment of competence for execution: A response to Bonnie. Law and Human Behavior, 14, 91–97. Brodsky, S. L., Zapf, P. A. & Boccaccini, M. T. (1999). Post conviction relief: The assessment of competence for execution. Proceedings of Psychological Expertise and Criminal Justice (Volume for Saturday, October 16 and Sunday, October 17, 1999). pp. 189–201. Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2001). The last competency: An examination of legal, ethical, and professional ambiguities regarding evaluations of competence for execution. Journal of Forensic Psychology Practice, 1, 1–25. Brodsky, S. L., Zapf, P. A., & Boccaccini, M. T. (2005). Competency for execution assessments: Ethical continuities and professional tasks. Journal of Forensic Psychology Practice, 5, 65–74. Caritativo v. California, 357 U.S. 549, 785 S. Ct. 1263 (1958). Cunningham, M. D., & Vigen, M. P. (1999). Without appointed counsel in capital postconviction proceedings: The self-representation competency of Mississippi death row offenders. Criminal Justice and Behavior, 26, 293–321. Cunningham, M. D., & Vigen, M. P. (2002). Death row inmate characteristics, adjustment, and confinement: A critical review of the literature. Behavioral Sciences and the Law, 20, 191–210. Deitchman, M. A., Kennedy, W. A., & Beckham, J. C. (1991). Self-selection factors in the participation of mental health professionals in competency for execution evaluations. Law & Human Behavior, 15, 287–303. Ebert, B. (2001). Competency to be executed: A proposed instrument to evaluate an inmate’s level of competency in light of the Eighth Amendment prohibition against the execution of the presently insane. Law and Psychology Review, 25, 29–57. Ex parte Jordan, 758 S.W.2d. 250 (Tx. Ct. App.1988). Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595 (1986). Frederick, R. (1997). The Validity Indicator Profile: Professional Manual. Odessa, FL: Psychological Assessment Resources. Furman v. Ga., 408 U.S. 238, 92 S. Ct. 2726 (1972). Harding, R. M. (1994). “Endgame”: Competency and the execution of condemned offenders— A proposal to satisfy the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment. St. Louis University Public Law Review, 14, 105–151. Heilbrun, K. S. (1987). The assessment of competency for execution: An overview. Behavioral Sciences and the Law, 5, 383–396. Heilbrun, K. S., & McClaren, H. A. (1988). Assessment of competency for execution? A guide for mental health professionals. Bulletin of the American Academy of Psychiatry and the Law, 16, 205–216. Hensl, K. B. (2005). Restoring competency for execution: The paradoxical debate continues with the case of Singleton v. Norris. Journal of Forensic Psychology Practice, 5, 55–68. Leong, G. B., Silva, J. A., Weinstock, R., & Ganzini, L. (2000). Survey of forensic psychiatrists on evaluation and treatment of prisoners on death row. Journal of the American Academy of Psychiatry & the Law, 28, 427–432. Martin v. Fla., 515 So.2d. 189 (Fla. 1987).

Competency for Execution

261

Mathias, R. E. (1988). Assessment of competency for execution: Assessment and dissonance on death row: The dilemma of consultation. Forensic Reports, 1, 125–132. Melton, G. B.,Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. Miller, H. A. (1995). Miller Forensic Assessment of Symptoms Test. Odessa, FL: Psychological Assessment Resources. Miller, R. D. (1988). Evaluation of and treatment for competency to be executed: A national survey and an analysis. Journal of Psychiatry & Law, 16, 67–90. Mossman, D. (1995). Denouement of an execution competency case: Is Perry pyrrhic? Bulletin of the American Academy of Psychiatry and the Law, 23, 269–284. Nobles v. Ga., 168 U.S. 398, 18 S. Ct. 87 (1897). Pastroff, S. M. (1986). Eighth amendment-the constitutional rights of the insane on death row. The Journal of Criminal Law and Criminology, 77, 844–866. Phyle v. Duffy, 334 U.S. 431, 68 S. Ct. 1131 (1948). Pirelli, G., & Zapf, P. A. (in press). An investigation of psychologists’ practices and attitudes toward participation in capital evaluations. Journal of Forensic Psychology Practice. Rogers, R., Bagby, R. M., & Dickens, S. E. (1992). Structured Interview of Reported Symptoms (SIRS) and professional manual. Odessa, FL: Psychological Assessment Resources. Roth, L. H., Meisel, A., & Lidz, C. W. (1977). Tests of competency to consent to treatment. American Journal of Psychiatry, 134, 279–284. Small, M. A., & Otto, R. K. (1991). Evaluations of competency to be executed: Legal contours and implications for assessment. Criminal Justice and Behavior, 18, 146–158. Solesbee v. Balkcom, 339 U.S. 9, 70 S. Ct. 457 (1950). Tombaugh, T. N. (1996) Test of memory malingering. Toronto, Canada: Multi-Health Systems. Ward, B.A. (1986). Competency for execution: Problems in law and psychiatry. Florida State University Law Review, 14, 35–101. Wash. v. Harris, 789 P.2d. 60, 114 Wash. 2d 419 (Wash. 1990). Wash. v. Rice, 757 P.2d. 889, 110Wash. 2d 577 (Wash. 1988). White, C. G. (1982). Ethical guidelines for psychologist participation in death penalty proceedings: A survey. Professional Psychology, 13, 327–329. Zapf, P. A. (2002, March). The assessment of competency for execution: Going above and beyond the Ford criteria. Invited participant, Mini Conference on Capital Case Litigation, Biennial Meetings of the American Psychology-Law Society, Austin, TX. Zapf, P. A., Boccaccini, M. T., & Brodsky, S. L. (2003). Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist. Behavioral Sciences and the Law, 21, 103–120. Zapf, P. A., Viljoen, J. L., Whittemore, K. E., Poythress, N. G., & Roesch, R. (2002). Competency: Past, present, and future. In J. R. P. Ogloff (Ed.), Taking psychology and law into the twenty first century (pp. 171–198). Kluwer Academic/Plenum Publishers.

III Juvenile Forensic Assessment

263

11 The Capacity of Juveniles to Understand and Waive Arrest Rights Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

The juvenile justice system in the United States was created well over one hundred years ago as an informal system that focused on the best interests of the child. As a consequence, procedural safeguards were not paramount, as the prevailing philosophy was one of rehabilitation rather than punishment. Beginning in the early part of the last century, juvenile courts “viewed children as more malleable and more amenable to rehabilitation than adults and believed that they were not solely responsible for their criminal conduct, which was thought to be due to poverty and parental neglect” (Redding, Goldstein, & Heilbrun, 2005, p. 7). This benevolent philosophy was dominant for decades but began to change in the 1960s, owing in part to legal decisions extending the rights of adults to adolescents and in part to changing attitudes that youth should be held more accountable and punished for delinquent and criminal behavior. OwenKostelnik, Reppucci, and Meyer (2006) note that “the characterization of young people has shifted between paternalistic logic models, which portray youths as children in need of protection and thus deprive them of certain rights when being questioned, and liberationist logic models, which depict youths as autonomous individuals entitled to the same rights as adults when being questioned” (pp. 287–288). The legal foundation for the major shift in juvenile justice practice perhaps began with a decision affecting adults in the criminal justice system. Miranda v. Arizona (1966) required states to warn suspects prior to interrogation or questioning of several rights, including: the right to remain silent, that anything they say can be used against them in a court of law, the right to the presence of an attorney, and the right to free counsel if they cannot afford the cost of an attorney. These warnings were viewed as strengthening individuals’ protection against incriminating themselves during police interrogation. These rights were extended to juveniles soon after the Miranda decision. Kent v. United States (1966) and In re Gault (1967) required courts to provide these procedural safeguards to youth. However, the seemingly straightforward downward extension of rights from adult to juvenile courts has not been as easy to implement in practice, due largely to the differences in decision making capacities of youth compared to adults. As Feld (2000) notes, “In reality, juveniles receive a very different form of procedural justice. Oftentimes, delinquents waive Miranda rights without appreciating the legal significance of confessing, and relinquish their right to counsel prior to trial and face the power of the state alone and unaided” (p. 105). 265

266

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

This chapter will focus on the assessment of youths’ capacity to understand and waive their legal rights at the time of arrest. The intent of this chapter is to provide clinicians with an overview of how to approach an assessment of capacity to waive these rights at arrest. In order to effectively assess youths’ capacities, it is necessary to understand relevant laws, research on adolescents’ Miranda rights comprehension, and important developmental considerations. Therefore, we first discuss these issues. Following that, instruments and approaches for assessing youths’ capacity to understand and waive Miranda rights are discussed. A case report is also presented.

The Application of Miranda Standards to Youth The importance of ensuring that procedural safeguards provide adequate protection of the rights of youth is underscored by the fact that not all juveniles are kept in juvenile court. The philosophical shift to accountability and punishment has resulted in an increasing number of youth who are transferred to adult criminal court, and consequently sentenced to prison rather than juvenile facilities (Penney & Moretti, 2005; Salekin, Yff, Neumann, Leistico, & Zalot, 2002). It is important to emphasize the fact that decisions regarding the determination of a youth suspect’s transfer to adult court, and the imposition of severe adult penalties occur after the young person has been arrested, given the opportunity to exercise Miranda rights, and interrogated. The possibility thus exists that a 16-year-old could be raised to adult court and be sentenced to life without parole or, until recently, be executed (Roper v. Simmons, 2005). This transfer can occur in one of three ways (Salekin, 2002). Judicial waiver allows a judge to transfer a youth to adult court following a hearing in which it is determined that a youth satisfies the criteria established in Kent v. United States (1966). These criteria focus on both the youth (e.g., treatment amenability, sophistication and maturity, prior record) as well as risk to the community. Automatic waiver is used in over half of the states. The waiver is automatic if a youth is charged with certain offenses, such as murder or other serious violence. Some states limit this to those aged 16 or 17, whereas other states don’t provide any age restriction. In fact, young offenders as young as age eight can face adult penalties for serious offences. Nevada is one of just a few states that don’t specify any age limit for exclusion of certain serious offenses (see also Delaware, Mississippi, Nevada, Ohio, and Pennsylvania). In Nevada, anyone charged with murder or attempted murder is tried in adult court. Those 14 and older charged with other crimes could also be raised to adult court. In cases where this may occur, the youth’s understanding, at the time of the Miranda warning, of the possibility of transfer to adult court should be assessed. A third option, which is available in nearly a third of the states, is prosecutor direct file, in which prosecutors can decide whether to try the youth in adult or juvenile court. One other consequence of youth interrogation that should be mentioned is the possibility of false confessions. Youth, especially younger adolescents and preteens, may be especially vulnerable to making false confessions due to immaturity and poor judgment (Kassin, 2005; Lassiter, 2004). Drizen and Leo (2004) cited cases in which youths confessed on the misguided belief that they would then be released. In a study of false confessions, Goldstein, Condie, Kalbeitzer, Osman, and Geier (2003) found

The Capacity of Juveniles to Understand and Waive Arrest Rights

267

that adolescents aged 15 and under were more prone to false confessions (see also Redlich & Goodman, 2003). As part of an evaluation of capacity to waive Miranda warnings, clinicians may be asked to evaluate the validity of a confession. If this is the case, Oberlander, Goldstein, and Goldstein (2003) is a helpful resource.

Miranda Warnings in Practice American and Canadian courts have typically distinguished between basic understanding of interrogation rights and appreciation of their significance (Abramovitch, Higgins-Biss, & Biss, 1993; Grisso, 1981). Grisso (1981) conceptualizes appreciation of the significance of rights to consist of three main parts. First, suspects must recognize the interrogative nature of police questioning. Second, suspects must perceive the defense attorney as an advocate who will defend and advise them, and be willing to disclose confidential information to him or her (appreciation of the right to counsel). Finally, suspects must perceive the right to silence as a right that cannot be revoked, and that statements made by suspects can be used in court (appreciation of the right to silence). In most jurisdictions, adolescents can choose to waive their Miranda rights independently, without the assistance of an attorney or parent. A key assumption underlying the extension of Miranda rights and other procedural safeguards is that adolescents are able to make informed use of them. Adolescents’ competence to exercise and validly waive their Miranda rights must be based on their ability to both understand the legal right, and to appreciate the consequences of decisions to waive or exercise their legal rights (Grisso, 1998a). The legal test applied in determining the validity of a waiver is that the waiver is “knowing, intelligent, and voluntary” (Grisso, 1981). The courts have outlined two standards for determining whether or not an adolescent has competently waived their Miranda rights. First, in Fare v. Michael C. (1979), a totality of circumstances approach was adopted, in which the validity of a waiver is decided based on a variety of factors and circumstances including for example the youth’s age and education, the length of the interrogation, and understanding of the Miranda warning. The other decision rule is known as the per se standard, in which a single factor (e.g., age, mental retardation) invalidates a Miranda waiver regardless of other factors related to the youth and the circumstances surrounding the waiver. However, as Grisso (2003, p. 154) noted, “Currently, no states have per se rules based on capacities or characteristics of suspects alone. For example, no statute considers all mentally retarded defendants or all children automatically incompetent to waive Miranda rights. Some states, however, consider juveniles incompetent to waive their rights unassisted. In those states, juveniles’ waivers are automatically (per se) invalid if they have not been advised by parents or other “friendly adults” (that is, if one of these persons was not present at the waiver). There is a considerable range in the types of police questioning of juveniles, from informal talks on the street or at a youth’s home to the much more formal, sometimes audio- or video-taped, interrogations in detention. As Grisso (1998b) notes, Miranda warnings are not necessary in many police encounters with youth. The warning is

268

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

only required when youth are questioned in custody. This does not necessarily mean that the youth is in detention, as it could include situations on the street or in the youth’s home when the youth is apprehended or arrested. A youth could confess to a crime even before a Miranda warning is given if the youth was not considered to be in custody, but the court could be asked to review “whether the police officers’ questions were directed toward obtaining a confession and whether they subsequently took the youth into custody, endeavored to meet all procedural requirements . . . and the youth then waived the rights and repeated the confession” (Grisso, 1998b, p. 40). The exact wording and complexity of Miranda warnings varies quite substantially across states (Grisso, 1998a; Helms, 2003). Each warning typically contains the four prongs already described and outlined in Miranda. A fifth warning prong has been added in many jurisdictions, which informs suspects that they can choose to stop questioning and consult with an attorney at any time (Goldstein et al., 2003). Additionally, some jurisdictions have included cautionary statements to juveniles regarding the possibility of having their case remanded to adult court or serving an adult sentence. Whereas the content of the warnings may remain somewhat static, wording complexity, and the format in which the warnings are administered vary considerably across jurisdictions. For example, Helms (2003) investigated the readability of adult and juvenile Miranda warning cards carried by police officers and waiver forms employed across most U.S. states. In his analyses, Helms (2003) determined that the Flesch-Kincaid grade reading levels of protocols obtained at the state level ranged substantially, from 4.0 in South Dakota, to 9.9 for forms used by the Bureau of Alcohol, Tobacco, and Firearms. Remarkably, of the states who employed separate warning cards or forms for juveniles, Helms found that the reading grade level of the warnings actually increased, while the ease of readability decreased, making the juvenile forms more difficult than their adult counterparts in the majority of cases. An example of a Miranda waiver form used by police in the state of Washington includes the four traditional Miranda warnings as well as the two additional prongs utilized in some U.S. jurisdictions: X I have the right to remain silent and not make any statement at all. X Any statement that I do make can and will be used against me in a court of law. X I have the right to consult with and have an attorney present before and during questioning or the making of any statement. X If I desire an attorney but cannot afford one, an attorney will be appointed for me at public expense prior to any questioning. X I may exercise these rights at any time before or during questioning. X If I am under 18 years of age I am considered a juvenile, but I do realize that this matter may be remanded to adult court for criminal prosecution, where I would be treated as an adult in all respects.

After initialing each of the above statements, the youth is asked to sign the form after reading the following: • I understand each of these rights that I have read or had read to me. I understand that I may exercise these rights at any time before or during questioning. I do wish to waive my right to remain silent, and I do wish to waive my right to an attorney at this time.

The Capacity of Juveniles to Understand and Waive Arrest Rights

269

A Flesch-Kincaid reading level analysis conducted on this warning form yielded a grade level of 9.2. This suggests that in order for an individual to be able to read the Washington Miranda warning, he or she would have to be able to read just slightly above a 9th grade level. This difficulty level is concerning, given the fact that youths much younger than 14 years old (a typical age for 9th grade students) may be presented with the same form, and also that even those 14 or older may have reading levels below the 9th grade level. Clinicians should be aware of the reading level for the warning in their jurisdiction, and may wish to assess reading level of the youth if there is reason to believe that his or her reading level falls below this grade level. It should also be noted that courts typically accept waivers. Feld (2000) reported that courts will typically validate Miranda waivers when police follow typical procedures of advising youth of their rights and obtaining a “yes” answer in response when they are asked if they understood those rights. Feld is critical of this practice, commenting that “If most juveniles lack the cognitive capacity to understand the warning or the psychosocial ability to invoke or exercise rights, then ritualistic recitation of the Miranda litany hardly accomplishes those purposes [to enable youth to assert their rights and to ensure that rights were knowingly and intelligently waived]” (p. 115). He also notes that courts typically do not consider low intellectual ability, including mental retardation, as necessarily resulting in a finding of inadmissibility of confessions. We will discuss this issue later in this chapter.

Role of Parents or Significant Adult A number of scholars have concluded that it would be appropriate for all states to require the presence of an adult before a youth could waive rights, with some arguing that a lawyer rather than a parent or other adult would be the most suitable person (see Feld, 2000). Some states require consultation with a parent or interested adult, apparently assuming that “parental presence will assure the accuracy of any statements obtained, involve parents in the process at the initial stages, ensure that police fully advise and a juvenile actually understand those advisories, and relieve police of the burden of making judgments about a youth’s competency” (Feld, 2000, p. 117). Parents cannot waive the constitutional rights of their child, but they do have an influence. However, the expectation that they would help ensure understanding and protect the rights of their child may sometimes not be realized in practice. Parents may place coercive pressures on youth to talk to the police because they are upset or angry with their child. They also may advise their children to waive their right to an attorney, encourage them to cooperate, and even adopt an adversarial attitude toward their own kids. In their study of youth in pretrial detention, Viljoen, Klaver, and Roesch (2005) found 89% of youth indicated their parents wanted them to confess or tell the truth, 11% indicated that their parents wanted them to deny the offence, and none reported that their parents advised them to remain silent. Also, parents may not fully understand or appreciate the legal situation and indeed, some parents may themselves have incapacities in terms of ability to understand Miranda rights (Woolard, 2005). Owen-Kostelnik et al. (2006), after reviewing the developmental research, concluded that “serious consideration should be given to

270

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

the per se approach, which advocates mandating that juveniles be afforded the protection of an advocate during questioning. Further, this advocate should be an attorney, as opposed to a parent because studies . . . have shown that parents often do little to encourage their children to assert their constitutional rights” (p. 301).

Research on Adolescents’ Miranda Rights Comprehension As we have discussed, trends in the juvenile justice system have emphasized the increased availability of severe punishments for young persons convicted of serious crimes. Given the potentially serious and long-term consequences that can arise in these circumstances, increased emphasis is placed on ensuring that young persons are able to understand and make informed decisions regarding their legal rights (Grisso, 1997). Specifically, comprehension refers to a young person’s simple understanding of Miranda rights, whereas appreciating the significance of a right goes beyond simple understanding and requires an individual to understand why a right is important. For example, a young male may clearly understand a statement informing him that he can consult with a lawyer prior to interrogation, but a lack of appreciation of the role and function of a lawyer renders this understanding meaningless (Grisso, 1998a). In order for young people to benefit from these due process extensions, they must know that they are entitled to certain rights, understand the protections these rights afford them, and understand the consequences of exercising or waiving these rights (Abramovitch, et al., 1993). However, research to date demonstrates that young persons—especially individuals under the age of 15—show poor comprehension of these rights, generally (Abramovitch et al., 1993; Abramovitch, Peterson-Badali, & Rohan, 1995; Colwell et al., 2005; Goldstein et al., 2003; Grisso 1980; Grisso et al., 2003; Redlich, Silverman, & Steiner, 2003; Viljoen & Roesch, 2005). It is perhaps not surprising, then, that research also demonstrates that the majority of young persons opt to waive their rights when being questioned by police (Grisso, 1981; Grisso & Pomicter, 1977; Peterson-Badali, Abramovitch, Koegl, & Ruck, 1999; Viljoen et al., 2005). Researchers to date have investigated the influence of numerous factors on juvenile rights comprehension, including age, IQ, ethnicity, prior police contact and experience, socioeconomic status, psychopathology and symptoms, special education classes, psychosocial maturity, and interrogative suggestibility (Abramovitch et al., 1993, 1995; Colwell et al., 2005; Ferguson & Douglas, 1970; Goldstein et al., 2003; Peterson-Badali et al., 1999; Redlich et al., 2003; Viljoen & Roesch, 2005). Results from these studies consistently indicate that rights comprehension in young persons is significantly more impaired for younger adolescents compared with older adolescents and adults. Further, comprehension is most impaired among younger adolescents with lower IQ. The interaction between age and IQ seems to most strongly predict poor rights comprehension. Results from studies evaluating the influence of the other factors have been less clear. A recent example of such research was carried out by Viljoen and Roesch (2005). They administered Grisso’s (1998a) measure to 152 male and female defendants aged 11–17 in a detention center in Washington State. They found that age significantly

The Capacity of Juveniles to Understand and Waive Arrest Rights

271

predicted overall rights comprehension, with younger adolescents demonstrating more impaired comprehension than older adolescents. They also found that cognitive development partially explained age-based differences in legal capacities, but not entirely. Research has generally found that an arrest history or previous experience with the criminal justice system is not a strong predictor of performance on Miranda rights comprehension (Grisso, 1997). Similarly, Viljoen and Roesch (2005) found that previous arrests were associated with higher scores only on a single subscale of one of Grisso’s four Miranda Instruments. They failed to find any relationship between rights comprehension and psychological symptoms, including depression, anxiety, and behavior problems. Although research has been helpful in identifying areas in which capacity may be impaired, it is important that clinicians keep in mind that an important limitation of the research on adolescents’ capacity to waive rights is that many studies have been conducted in laboratory settings, using hypothetical scenarios and nondelinquent samples (e.g., Abramovitch et al., 1995). This has meant that studies have failed to capture the stressful nature of police interrogations. Under stressful circumstances, juveniles’ understanding, appreciation, and reasoning about interrogation rights may be poorer than these findings suggest (Grisso, 1997).

Interrogative Suggestibility Gudjonson and his colleagues have examined the relationship between interrogative suggestibility and rights comprehension in adolescents. Gudjonsson and Clark (1986) defined interrogative suggestibility as “the extent to which, within a closed social interaction, people come to accept messages communicated during formal questioning, as the result of which their subsequent behavioral response is affected” (p. 4). They developed a theoretical model of interrogative suggestibility combining two distinct aspects of suggestibility relevant to police questioning. The first reflects the extent to which individuals tend to give into leading questions (Yield), and the second refers to individuals’ tendency to shift responses under conditions of interpersonal pressure (Shift; Gudjonsson, 1984). Research demonstrates that children are more suggestible than adolescents and adults, as measured by the Gudjonsson Suggestibility Scale (GSS; Gudjonsson, 1997), and that suggestibility decreases steadily as age increases (Danielsdottir et al., 1993; Warren, Hulse-Trotter, & Tubbs, 1991). Researchers have investigated interrogative suggestibility in a variety of adolescent populations, including community, offender, institutionalized, and forensic samples (Gudjonsson & Singh, 1984a; Gudjonsson & Singh, 1984b; Muris, Meesters, & Merckelbach, 2004; Redlich et al., 2003; Redlich & Goodman, 2003; Richardson, Gudjonsson & Kelly, 1995; Richardson & Kelly, 1995; Richardson & Kelly, 2004; Singh & Gudjonsson, 1992). Results generally indicate that, when compared with adults, adolescents are no more likely to yield to leading questions but are significantly more susceptible to interrogative pressure in the form of negative feedback and interpersonal pressure (Gudjonsson & Singh, 1984a; Richardson, Kelly, & Bryce, 1998; Richardson, Gudjonsson, & Kelly, 1995, Singh & Gudjonsson, 1992).

272

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

Redlich et al., (2003) investigated the relationship between Miranda comprehension and suggestibility in a sample of 18 juveniles (14–17 years) and 17 young adults (18–25 years) recruited from various community settings. They found that higher suggestibility in terms of yielding to misleading questions (GSS Yield) significantly predicted increased comprehension and overall scores of Miranda rights understanding. Further, they found that higher suggestibility, in terms of shifting answers after receiving negative feedback (GSS Shift), was associated with lower comprehension. Researchers have also investigated the relationship between suggestibility and a number of individual difference variables in addition to age, including intelligence and gender. Results generally indicate that suggestibility is negatively correlated with IQ in both adults and adolescents (Muris et al., 2004; Polczyk, 2005; Pollard et al., 2004; Richardson & Kelly, 1995; Richardson et al., 1995; Singh & Gudjonsson, 1992). Gudjonsson (1990) found evidence for possible range effects within the suggestibilityIQ relationship in a sample of adults. He found a significant negative correlation between suggestibility and intelligence for individuals with below average IQ but no significant relationship for individuals with average and higher IQs. Richardson and Kelly found similar results in their 1995 study, but they caution that a small sample size limited the strength of this finding. The suggestibility literature offers fewer studies examining gender differences in interrogative suggestibility. Suggestibility research in children has yielded conflicting findings. McFarlane, Powell, and Dugeon (2002) employed a video suggestibility scale modeled on the GSS scales, and found that 3- to 5-year-old girls were more suggestible (higher yield) than the boys in the sample. In their sample of fifth and sixth grade students, Calicchia and Santostefano (2004) also found that girls were significantly more likely to yield to misleading questions on both the GSS 2 (Yield) and in response to questions about a video. Alternatively, Danielsdottier et al. (1993) provided evidence showing that boys (8-year-olds) were more likely to yield to interviewers suggestions (GSS Yield) than girls. Pollard et al. (2004) found no significant gender differences in adults on the GSS 2 in a U.S. sample. This finding corresponds with an absence of gender differences reports in U.K. samples (Gudjonsson, 1997). It is possible that some element of the maturation process affects suggestibility levels differently as boys and girls develop. Gudjonsson (1990, 1991) first suggested that interrogative suggestibility is possibly related to the likelihood of false confession in his research conducted with adults. Redlich and Goodman (2003) demonstrated that younger and more suggestible adolescent participants were more likely than young adults to falsely take responsibility for crashing a computer in an experimental paradigm. Interestingly, they found that although participants’ GSS Shift scores were unrelated to confession, those who were more likely to yield to misleading questions on the GSS were also more likely to agree with an experimenter’s request to (falsely) sign a confession form. It is troubling to consider the implications of this study in light of the negative association between suggestibility and young people’s understanding of their arrest rights. Taking into consideration the fact that young age, high suggestibility, and low intelligence are all negatively associated with rights comprehension, Redlich et al. (2003) identify the presence of a possibly dangerous cycle. Once in police contact, a young person’s chances of being interrogated by police are heightened, along with the opportunity

The Capacity of Juveniles to Understand and Waive Arrest Rights

273

to receive an arrest rights warning by police. Poor rights comprehension has been identified as an important factor that may contribute to a young person’s decision to then waive those rights, which, in combination with high suggestibility, increases the chances of self-incrimination, false confession, and the possibility of prosecution (Muris et al., 2004; Redlich at al., 2003; Richardson et al., 1995).

Developmental Considerations Results from research have generally demonstrated that younger adolescents with poor intellectual ability, especially those who are highly suggestible fail to adequately comprehend their Miranda rights. However, a great degree in variability of understanding can still be attributed to individual differences between youths. A bright 12or 13-year-old may demonstrate excellent understanding of Miranda rights, whereas a less intellectually capable adult may struggle to comprehend the content of typical Miranda warnings. However, adolescents are different from adults in one important way. They are at a stage in development where they are still undergoing important maturational changes. Adolescence is marked by significant physical maturation, budding sexuality, an increased awareness and sensitivity towards peers, and an increased desire for independence and identity development, to name only a few characteristics (Kazdin, 2000). It is perhaps not surprising, then, to learn that these intersecting factors and developmental influences affect the way that youths make decisions, and in turn might affect how we view adolescents in conflict with the law. In this regard, a recent U.S. Supreme Court decision is important for what it concludes about the decision making and judgment capacities of young people, and thus it has implications for the manner in which our system of justice should deal with young people who are suspected of engaging in criminal activity. In Roper v. Simmons (2005), the Court considered whether it was permissible, under the U.S. Constitution, to execute a juvenile offender (older than 15 but younger than 18) when a capital crime was committed. Christopher Simmons was 17 when he murdered a woman during an attempt to burglarize her home. Due to his age, he was automatically raised to adult court in the state of Missouri. Simmons confessed to the crime and was sentenced to death. The court considered briefs by a number of groups that presented evidence on the capacities of adolescents. Notable among these briefs to the court was one submitted by the American Psychological Association (APA). The APA brief reviewed the developmental research that shows that adolescents have considerably less capacity than adults in terms of judgment and decision making. Adolescence is marked by an increase in risk taking (Arnett, 1992), including engaging in criminal behavior. As Moffitt (1993) notes, this involvement in criminal activity, particularly when initiated in adolescence rather than childhood, typically does not persist into adulthood, and may reflect the fact that adolescents are immature and more heavily influenced by peers (Haynie, 2002). Adolescents are also less future oriented, and are less likely to weigh the consequences of their decisions (Cauffman & Sternberg, 2000). In other words, they often act impulsively (Halpern-Felsher & Cauffman, 2001). One compelling explanation for these differences between adolescents and adults is that cognitive

274

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

capacities of adolescents are simply underdeveloped. Recent research on brain development shows that adolescent brains have not reached adult maturity, particularly in the frontal lobes, which control executive functions of the brain related to decisionmaking (Giedd et al., 1999). This area of the brain is typically not fully developed until the early 20s. Younger children and adolescents are simply less likely to think strategically about their decisions (Peterson-Badali & Abramovitch, 1993). As adolescents mature, they typically become better problem solvers, are less influenced by peers, less impulsive, and more sophisticated in the way they think. Thus, even if a young person adequately understands the meaning of a Miranda warning, his or her appreciation of the consequences of the decision to either waive or exercise those rights may suffer, given the relative level of maturity and development. Feld (2000) provides an example: “Inexperienced youths may waive their rights and speak to police in the short-sighted and unrealistic belief that their interrogation will end more quickly and secure their release” (p. 115).

Mental Health Professionals’ Role in Miranda Comprehension Assessments As with any forensic evaluation, it is important to inform youth about the purpose of the assessment, what information will be conveyed to the courts, and limits of confidentiality. The youth’s understanding of this information should be assessed as it can provide relevant information on reasoning and understanding. Evaluators may wish to ask the youth to repeat what was said in their own words and probe when misunderstandings seem evident. Difficulties in understanding and providing informed consent may be included in the report as difficulties in this area may validate concerns about the validity of the Miranda waiver. There are several sources of information that clinicians should obtain as part of a comprehensive evaluation of juvenile waiver of Miranda rights. First, details about the initial police contact should be gathered. How did police officers convey the Miranda warning to the youth? This information should be available in arrest reports, and there should be documentation showing that the youth was advised of his or her rights. This is often in the form of a signed waiver in which youth initial the components of the waiver and then sign, indicating that the rights were understood. If the youth has been arrested, he or she may then be interrogated by detectives. Detectives often repeat the warning to youth, and there may be either audiotape or videotape records of this waiver. Second, the youth’s perspective should be obtained. Interviews with youth should focus on details of their experience with the police and with detectives, and what they understood at the time of the waiver. Third, parents or guardians should be interviewed to determine their role, if any, in the waiver. As we note elsewhere, parents may be involved and, indeed, may have encouraged their child to talk to the police. Fourth, various records should be obtained as appropriate and available from schools, mental health treatment providers, social services agencies, and criminal record. If possible, it may be useful to interview teachers. Prior testing, particularly intellectual functioning and personality assessments, should be obtained if available as they can provide an indication of the youth’s functioning prior to arrest.

The Capacity of Juveniles to Understand and Waive Arrest Rights

275

One of the difficulties of assessing capacity to waive the Miranda warning is that the youth may have gained knowledge about arrest rights subsequent to the arrest. Parents, attorneys, and others may have informed them of what rights they had and what they should have done. This is a retrospective evaluation, and what is relevant is what the youth knew and understood at the time of the arrest, not what they know and understand at the time of the evaluation. Evaluators need to keep this important distinction in mind as the evaluation proceeds. Grisso (2003) notes that clinicians should be cognizant of the fact that the evaluation assesses present abilities, and they should be cautious about making inferences about performance in the waiver situation. He comments that “The Miranda comprehension instruments provide indexes of current functioning. There is little empirical evidence to assist examiners in making inferences, based on these performance indexes, about functioning at an earlier time, such as a past arrest and interrogation event” (p. 191). Grisso (2003) also cautions that clinicians should not testify about the ultimate legal issue before the court. He states that, When circumstances allow the examiner to conclude that the individual probably understood very little about the rights at the time that they were waived, this still does not justify expert testimony regarding the validity of the waiver (i.e., testimony that the waiver was or was not made “knowingly, intelligently, and voluntarily”). Nothing about the empirical nature of the forensic assessment instruments justifies testimony by expert witnesses on questions that require moral and social judgments in the application of the legal standard [p. 192].

Forensic Assessment Instruments Instruments for Assessing Understanding and Appreciation of Miranda Rights. Grisso (1998a) developed these instruments to assist mental health professionals to “examine the capacities of individual youths or adults to have waived their Miranda rights knowingly and intelligently at the time of their police interrogation” (p. 1). The four scales assess an individual’s understanding of a typical arrest warning, based on Miranda warning statements used in St. Louis County, Missouri, in 1980 (Grisso, 1998a). These include the right to remain silent, possible use of statements provided in court, the right to counsel prior to and during interrogation, and the right to free counsel. The Grisso instruments provide a standardized method for assessing understanding and appreciation of rights warnings and provide an objective method for scoring responses. In a recent survey of clinical forensic psychologists, Ryba and Brodsky (2005) found that nearly one third of respondents reported having used Grisso’s instruments in evaluations of Miranda rights comprehension, which indicates the instruments are widely used. Scoring criteria for the instruments were developed by legal experts who reviewed a large number of sample responses from juveniles and arrived at a consensus regarding the logic and degree of accuracy in understanding demonstrated in juveniles’ responses. It is important to remain cognizant of the fact that the instruments provide an index of an individual’s capacities for understanding and appreciating the rights warnings at the time of the evaluation and do not necessarily reflect comprehension when police questioning and rights’ waiver actually occurs (Grisso, 1998a).

276

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

Four subtests are included in Grisso’s (1998a) measure. Comprehension of Miranda Rights (CMR) assesses examinees’ understanding of the four elements of a standard rights warning by asking them to paraphrase the meaning of each right in four items (e.g. “You do not have to make a statement and have the right to remain silent”). Comprehension of Miranda Rights–Recognition (CMR-R) requires little verbal skill and requires examinees to compare the four elements of a typical rights warning with a pool of statements including accurate and inaccurate rewordings of each of the sentences. This comprises 12 items, with 3 semantic comparison items for each of the standard rights prongs. Comprehension of Miranda Vocabulary (CMV) requires examinees to provide definitions of six words contained in the interrogation warnings (e.g. “attorney” and “interrogation”). Function of Rights in Interrogation (FRI) assesses the examinee’s appreciation of the importance of rights in an interrogation and legal situations, generally. This subtest comprises three subsections, each assessing appreciation of the significance of the warning in different areas including: recognition of the nature of interrogation (NI), significance of the right to counsel (RC) and significance of the right to silence (RS). Examinees are presented with a series of four pictures in which youth are shown interacting with various criminal justice figures, including police officers, a lawyer, and a court scenario. They are read a short description of what is happening in a given picture and are then asked questions about the scenario (e.g. “What is it that the police want Joe to do?”). Three of the four subtests (CMR, CMV, and FRI) are scored from 0 to 2 based on the level of comprehension reflected in their responses. Examples of 0, 1, or 2 point answers are included in the manual for each item to improve the standardization of scoring and reliability of the Grisso measure. CMR-R responses are scored as either correct or incorrect, and assigned a score of 0 or 1. In the context of a clinical assessment, each of the subtests are scored separately and judged relative to one another to determine the level of understanding and appreciation of interrogation rights, and no total comprehension score is derived. CMR scores range between 0 and 8, CMR-R and CMV total scores each range from 0 and 12, and FRI scores range between 0 and 30. Scores on each subtest can be compared to norms for both juveniles and adults which are provided in the manual. Normative data for Grisso’s Miranda Instruments were analyzed from a sample of 431 youths, ages 10 to 16, and 260 adults, ages 17 to 50 (Grisso, 1980). Each subtest yields adequate internal reliability. Inter-item correlations for the CMR ranged from r = .12 to r = .32, and item-total correlations ranged from r = .55 to r = .73. The CMR also demonstrates high inter-rater reliability with Pearson r coefficients ranging from .80 to 1.00 for individual CMR items, and .92 to .96 for total CMR scores. Test–retest stability was established by presenting the items to a sample of youths 3 days after initial administration, yielding a Pearson r coefficient of .84. For the CMV, inter-item correlations ranged from r = .14 to r = .37, item-total correlations ranged from r = .51 to r = .72. Inter-rater reliability was high, yielding Pearson r coefficients of .89 to .98 for individual vocabulary items and coefficients of .97 to .98 for total CMV scores. Test-retest stability for the CMV was not examined during Grisso’s (1980) original study. Tests of reliability are not required for the CMR-R because scoring is objective and requires no judgment on the part of scorers. Internal consistency and test–retest reliability of the FRI were not examined by Grisso (1980), but the scale did yield acceptable interscorer

The Capacity of Juveniles to Understand and Waive Arrest Rights

277

reliability resulting in Pearson r coefficients ranging from .72 to 1.00 across items, .80 to .94 for the various FRI subscales and .94 to .96 for FRI total scores. Grisso (1998a) argues that the Miranda Instruments demonstrate content validity, as they reflect the language used in typical arrest warnings. Additional evidence for the validity of this measure includes the significant and positive relationships found between each of the four subtests and age and IQ. Youths below age 15 demonstrated more impaired performance on all the measures than did older subjects. Correlations between Miranda comprehension measures and IQ (r = .45 to .59) were greater than correlations between individual subscales and age (r = .19 to .34). Grisso (1998a) argues that these relationships are consistent with those we should expect given the development of cognitive capacities in adolescence, demonstrating construct validity. Evidence for the concurrent validity for the measure was drawn from moderate correlations between the individual comprehension measures (CMR, CMR-R, and CMV), demonstrating more substantial associations among subscale pairs than between individual subscales and IQ. Not unexpectedly, the FRI does not correlate significantly with the three comprehension measures. Unlike the other measures, the FRI was designed to assess examinees’ appreciation of the significance of the Miranda warnings in the context of police questioning, rather than rights understanding assessed by the other measures. Limitations. In a critique of Grisso’s measure, Rogers, Jordan, and Harrison (2004) identified several weaknesses in the measures. They argued that the instruments do not, for example, include an evaluation of an examinee’s level of emotional stress or have the ability to take into account learning effects such as increasing their rights comprehension through interactions with counsel between the time of waiver and the time of the evaluation. In his response, Grisso (2004) argued that many of their criticisms were misplaced and that they had largely confused his measure with a “competence-to-confess measure.” He strongly reminded Rogers et al. (2004), along with clinicians using the measure in practice, that the purpose of the measure is not to assess whether or not an individual understood their rights, or was competent to waive those rights and make a statement at the time of interrogation, but rather an individual’s present understanding of their rights. As he suggests in the manual, other factors including stress and pressure experienced at the time of the rights warning and waiver, should be evaluated during the course of an assessment as elements informing the totality of circumstances surrounding a valid rights waiver. Rogers et al. (2004) are also critical of the lack of consideration of internal consistency presented in the manual for Grisso’s measure. In his response, Grisso commented that internal consistency was indeed considered during the psychometric evaluation, and that interitem and item-scale correlations were fairly low across the four subtests. However, he also explains that “unlike most scales, these instruments use items (actual Miranda warnings) that government officials wrote without concern for interitem homogeneity. Consistent with the manual’s instruments, this does not deter an examiner from using the instruments as a standardized, reliable way to assign evaluative scores for understanding of each Miranda warning” (p. 722). Normative data are presented in the manual for the percentages of juvenile and adults who demonstrated adequate and inadequate understanding for each item separately so that evaluators can make direct comparisons regarding an examinee’s

278

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

item-by-item performance on the instruments. Clinicians who plan to use Grisso’s Instruments for the purposes of a forensic assessment are advised to read Rogers et al. (2004) critique paper and Grisso’s (2004) response for a full discussion of the application and limitations of the measures. Perhaps more importantly, Grisso (2004) acknowledged concerns raised by Rogers et al. (2004) regarding his measure’s outdated norms, narrow language, and limited psychometric information from the normative sample. As described, the normative information came from a sample of juveniles in St. Louis, Missouri, in 1980. These norms may not be reflective of the level of understanding and comprehension of contemporary youths. Additionally, the actual rights warnings and language employed in the measure many not generalize appropriately across U.S. jurisdictions. In the manual, Grisso (1998a) suggests that evaluators familiarize themselves with the language of rights warnings employed in their jurisdiction and modify the language used in the measure accordingly. Although this would invalidate the application of the norms provided in the manual, Grisso argues that the information gained from a structured assessment of an examinee’s rights comprehension in this fashion would still contribute to conclusions drawn during the course of an assessment. To address these limitations, efforts to update Grisso’s Miranda Instruments, collect new normative data, and provide comprehensive psychometric properties of the instrument are currently underway, as we discuss in the next section. The Miranda Rights Comprehension Instruments-II (MRCI-II, Goldstein, Condie, & Kalbeitzer, 2005). These instruments comprise an updated version of Grisso’s (1998) Instruments for Assessing Understanding and Appreciation of Miranda Rights. Although Grisso’s (1998) instruments are still widely used and well respected among legal and clinical professionals, they contain outdated norms and overly complex language based on Miranda warnings from St. Louis County, Missouri. Goldstein et al. (2005) have updated the instruments to include language that they argue more easily generalizes to reflect typical Miranda warnings used across U.S. jurisdictions. They are currently developing new norms to reflect contemporary juveniles’ comprehension of Miranda rights, but the instruments are not yet available for use in clinical assessments at this time. The results of a study conducted by Goldstein et al. (2003) using the updated MRCI-II suggest that the comprehension of adolescent male offenders is similar to the levels of understanding of delinquent boys in the 1970s as measured by Grisso’s original research instruments. Five instruments are included in the MRCI-II: Comprehension of Miranda Rights-II (CMR-II) assesses adolescents’ understanding of a standard rights warning by asking them to paraphrase the meaning of each right. The language of the warnings were updated from Grisso’s (1998a) instrument, and a fifth item was added to reflect the commonly included warning regarding the right to request counsel at any point in the interrogation process. Comprehension of Miranda Rights–Recognition-II (CMR-R-II) asks examinees to determine whether a series of sentences share semantic meaning with a corresponding sentence from the typical rights warning. The CMRR-II also includes the fifth warning, and the language was also updated from the original instruments. Function of Rights in Interrogation (FRI) remains identical to that included in Grisso’s (1998a) original battery and assesses the examinee’s appreciation of the importance of rights in an interrogation and legal situations generally.

The Capacity of Juveniles to Understand and Waive Arrest Rights

279

Comprehension of Miranda Vocabulary-II (CMV-II) requires examinees to provide definitions of words contained in the interrogation warnings. This instrument now includes 12 vocabulary items, as six new words were added to Grisso’s (1998a) original six words. The Perceptions of Coercion During Holding and Interrogation Process (P-CHIP) instrument is a new addition to the set of instruments, and assesses examinees’ selfreported likelihood of offering true and false confessions during hypothetical interrogation procedures (Goldstein et al., 2005). After reading examinees a scenario describing a boy who reports to the police that he was robbed by a person matching the examinee’s age and gender, they are asked to pretend that he or she is the suspect. In response to 26 hypothetical interrogation vignettes describing different forms of police behavior, the examinees are required to rate the youth suspects’ probable discussions with police if he or she is guilty, the probability of offering a confession to the crime if he or she is actually innocent, and the level of anxiety they would expect to feel in each hypothetical situation. The P-CHIP comprises three subscales, one for each of the questions posed to examinees for each scenario (e.g., discussions if guilty, confession if innocent, and anxiety ratings). It should be noted that the use of vignettes as proxy for what the examinee might do in a real interrogation situation in other measures has been a point of debate in the literature. Goldstein et al. (2003) caution that “the P-CHIP does not assess a suspect’s actual likelihood of falsely confessing to a crime” but later argue that “should further research on this instrument establish its validity, the P-CHIP would serve as the first assessment tool to directly assess youths’ likelihood of offering false confessions” (p. 366). The use of hypothetical vignettes does not allow clinicians to assess an individual’s understanding, reasoning, or likely response in relation to their own circumstances, and therefore “does not provide a means for comparing individual’s abilities [or likely response] to actual demands of their situations” (Grisso, 2003, p. 100).

Other Assessment Issues and Measures Intellectual and Achievement Measures. Intellectual ability and educational achievement form important elements of any assessment. Under the legal totality of circumstances test, these factors have been recognized by U.S. courts as contributing to a juvenile’s overall comprehension of their Miranda rights at the time of waiver, and psychologists who conduct evaluations of Miranda rights comprehension report that they routinely evaluate intelligence and achievement (Ryba & Brodsky, 2005). Research has generally demonstrated that intellectual ability strongly predicts rights comprehension. Youths with lower IQ, especially those under the age of 15 are particularly likely to demonstrate poor rights understanding (Goldstein et al., 2003; Grisso, 1981; Viljoen & Roesch, 2005). Mentally retarded adolescents are at particular risk for having poor rights comprehension (Everington & Fulero, 1999). Additional assessment steps should be taken if, during the course of an evaluation, clinicians’ suspect that an examinee may be mentally retarded. An assessment of intellectual ability and scholastic achievement may not be necessary in every case. For example, if an evaluator has access to the adolescents’ school records and these demonstrate

280

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

satisfactory, above average academic achievement, there may be little reason to suspect that difficulties in intellectual ability may have impaired an examinees’ rights comprehension. Suggestibility. Little research on suggestibility and Miranda rights comprehension has been published to date. However, it seems reasonable to expect that a juvenile’s level of suggestibility may be associated with the adequacy of their Miranda rights comprehension. As discussed, Redlich et al. (2003) found that adolescents ages 14 to 17 who were more suggestible were more likely to demonstrate poor comprehension on Grisso’s (1998a) instruments. However, this study suffered important limitations, including low sample size and failure to include younger adolescents in the design. Despite a strong lack of empirical support at this time, assessors may want to consider evaluating a young person’s suggestibility as an additional factor that could have influenced comprehension at the time they waived their rights. Lawyers or judges often want evaluators to comment on the overall reliability of a statement or confession, and whether or not it was distorted or false in some way. It is important for clinicians to understand that the reliability of statements is a separate issue from the validity of the Miranda rights waiver, which focuses on understanding and appreciation of Miranda rights. However, the GSS may provide some relevant information for evaluators during the course of such an assessment as one factor at play in the overall totality of circumstances surrounding a Miranda warning and waiver. Gudjonsson’s Suggestibility Scales (Gudjonsson, 1997) measure interrogative suggestibility and tap into two distinct forms of suggestibility: the extent to which people yield to misleading questions and the extent to which people shift their answers after receiving negative feedback. This scale is designed to measure “individual differences in the degree to which they may yield to suggestions by police officers” (Grisso, 2003, p. 164), and whether a person’s confession may have been distorted or false (Gudjonsson, 1997). Gudjonsson has developed two equivalent forms of the GSS, known as the GSS and GSS 2. The measure is presented as a memory test, and employs one of two narrative paragraphs describing a fictitious story that is played on an audio cassette tape to examinees. After listening to the story, examinees must recall as many details from the story as they can, both immediately and again after a 50-min delay. The second portion of the GSS asks participants 20 specific questions about the content of the story, 15 of which incorporate increasingly suggestive prompts within the question. Regardless of actual performance on these questions, participants are provided with negative feedback from the examiner, who informs them that they have made a number of errors. They are then sternly asked to respond to the same set of questions again and to try and provide more accurate answers. Five GSS subscale scores can be calculated: short- and long-delay recall memory scores are calculated by assigning one point for each element of the story that examinees are able to recall, ranging from 0 to 40. Two scores measuring the impact of suggestive questions (Yield 1 and Yield 2) can be calculated, and one point is assigned for each instance where examinees acknowledge the content of each of 15 suggestive questions (scores range from 0 to 15 for both subscales). One score measuring the impact of interrogative pressure (Shift) is calculated by assigning a point for each instance where the examinee provides a different response during the second round of questioning after receiving negative feedback (e.g., changing their answer from “yes” to “no” or from “I

The Capacity of Juveniles to Understand and Waive Arrest Rights

281

don’t remember” to “yes”). Shift scores range from 0 to 20. A total suggestibility score is also calculated by summing the Yield 1 and Shift subscales. Clinicians’ can compare an examinee’s performance on the GSS with normative data found in the GSS manual (Gudjonsson, 1997). The normative samples cover a wide range of demographic characteristics and include adult and juvenile normative, correctional, custodial, and forensic populations, as well as norms for intellectually disabled adults. Factor analysis conducted on both GSS forms clearly demonstrates that the two types of items (Yield and Shift) load on two separate factors. The GSS and GSS 2 subscales also yield good reliability. The Yield and Shift subscales of the GSS yield acceptable reliability. Alpha coefficients for the Yield subscale range from .77 to .80, Shift subscale range from .67 to .85, and coefficients for the total subscale range from .82 to .81 (Gudjonsson, 1984; Merckelbach, Muris, Wessel, & Koppen, 1998; Muris et al., 2004). GSS 2 Alpha coefficients for the Yield 1, Yield 2, and Shift subscales were 0.87, 0.90, and 0.79, respectively (Gudjonsson, 1992). Inter-rater reliability of the GSS scale is high, with Pearson r coefficients above .94 for all scores (Richardson, & Smith, 1993). Inter-rater reliability on GSS 2 subscales are also high, with intraclass correlations ranging from .951 to .969 for the Recall scores and .989 to .996 for the Suggestibility scores (Clare, Gudjonsson, Rutter, & Cross, 1994). Finally, although researchers have not directly investigated the predictive validity of the GSS 2, Merckelbach et al. (1998) found limited evidence for the predictive validity of the original GSS form. The correlation between the extent to which participants gave into leading questions on an unrelated task and GSS Yield scores was significant (r = 0.22). Gudjonsson and Singh (1984a) also demonstrated criterion-related validity for the GSS as evidenced by significant correlations between teachers’ ratings of suggestibility in delinquent boys and the GSS. Mental health assessment. Mental health issues may also be a focus of an evaluation of capacity to waive Miranda rights. Recent studies have shown that mental health problems may be prevalent in youth who are in conflict with the law. A study by Teplin, Abram, McClelland, Dulcan, and Mericle (2002) of 1829 youth in detention in Cook County, Illinois showed that two thirds of the male youth and three quarters of the female youth had one or more psychiatric disorders; about half the sample had indications of substance abuse, about 20% had major depression, and approximately 16% of male offenders and 21% of female offenders were considered to have Attention Deficit Hyperactivity Disorder (ADHD). Although psychotic disorders were rare, about 21% of male offenders and 31% of female offenders had an anxiety disorder. Other research has shown that conduct disorder is quite high—in some studies up to 90%—so the presence of conduct disorder is not particularly useful as an assessment focus or a guide for intervention. Finally, co-morbidity is also common for young offenders, especially depression with substance abuse, ADHD, and anxiety disorders (Lexcen & Redding, 2002). It is not clear how mental health issues can affect waiver capacity. Research examining the influence of mental health symptoms such as depression and anxiety has failed to identify a relationship between psychopathology and Miranda rights comprehension per se (e.g., Viljoen & Roesch, 2005). However, given the totality of circumstances approach to a determination of the validity of rights waiver, an evaluation of an examinee’s mental health may be important in some assessments.

282

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

For example, it seems reasonable to suggest adolescents who suffer from severe depression and suicidal ideation or attempts may not carefully evaluate and understand their legal rights, or appreciate the consequences of waiving those legal rights. Additionally, Viljoen and Roesch (1995) found that psychomotor agitation symptoms associated with attention deficit/hyperactivity disorder inversely impacted scores on Grisso’s (1998a) CMR and CMR-R Instruments. Given that these symptoms are common among adolescent offenders, consideration of assessing these factors should be made on a case-by-case basis. In order to further illustrate the use of these instruments in practice, a case example is provided in the following section. For other examples of evaluations of Miranda rights comprehension, readers are advised to consult Rosado (2000) and Heilbrun, Marczyk, and DeMatteo (2002). Case Example Daniel is a 13-year-old male of mixed race (African-American/Caucasian) who was referred by his defense attorney for an assessment of his competency to waive his Miranda rights.1 He appears small for his age. At the time of the evaluation, he was in detention at the Youth Services Center awaiting adjudication on charges of Rape in the Third Degree and Incest in the First Degree. At the time of his arrest, Daniel was a student in Grade 8 in special education. The following tests were administered: Woodcock-Johnson III; Assessing Understanding and Appreciation of Miranda Rights; Gudjonsson Compliance Scale. I also reviewed the following documents: Police Department Incident Report, Superior Court for County Juvenile Department Notice and Summons-Dependency, Department of Social and Health Services reports, court documents, police records, Child Protective Services reports, and school records. Daniel was living with both parents and his brother at the time of his arrest. Daniel’s family has a history of economic difficulties. His parents have been unemployed for extended periods, were homeless for a time, and have lived in motels supported by state funds. Child Protective Services reports note a history of possible sexual abuse by a female babysitter. Daniel’s mother was reported to have been sexually abused as a child. Several incidents of domestic violence involving Daniel’s parents have been reported, as well as prior reports of Daniel’s sexual abuse of his brother Mark dating back to 2004. He also has a history of seizures. Daniel was arrested on January 10, 2006. Police officers responded to a call from a CPS social worker, who had been notified by Mark’s school that Mark had reported he had been sexually assaulted by Daniel. Officer B went to Daniel’s home and first interviewed Mark, who informed him that “his brother had sex with him and had inserted his penis into his body.” The officer subsequently interviewed Daniel and asked him if “he had penetrated his brother with his penis.” Daniel responded yes. Based on these interviews, Officer B took Daniel into custody for investigation of Rape I. Daniel was not read his Miranda rights until he was at the East Precinct. Daniel was asked if he understood his rights and he responded, “Yes, I do.” He was then asked to again relate the incident involving his brother. Daniel commented in my interview with him that the police started asking him questions when he was first contacted and did not inform him that he did not have to talk to them. He also commented that he was scared as he had never been arrested before and had no prior contact with police.

The Capacity of Juveniles to Understand and Waive Arrest Rights

283

Assessment The assessment focused on two areas: cognitive functioning and capacity to waive Miranda rights.2

Cognitive Functioning The Woodcock-Johnson III (WJ III) is a comprehensive measure of cognitive functioning, which research has indicated is accurate and reliable. Daniel was cooperative with testing and appeared at ease and comfortable. However, he was fidgety and restless, and often distracted. To compensate for this, he was given an opportunity to take numerous short breaks. Although he attempted difficult tasks, he tended to give up easily, and was frequently impulsive and careless in responding. On the WJ III, Daniel achieved a General Intellectual Ability score in the Very Low range (54). This suggests that Daniel’s cognitive functioning is comparable to that of an average individual aged 7 years and 1 month. The WJ III provides three cognitive performance clusters in addition to the overall Global Intelligence Ability score. On Thinking Ability (a measure of intentional cognitive processing), Daniel’s score fell in the Borderline range (72). Daniel’s performance on Verbal Ability fell in the in the Low range (68). His score on Cognitive Efficiency (a measure of automatic cognitive processing) was significantly lower (54). The results of the WJ III are largely consistent with prior testing. At age nine, he was administered the Wechsler Intelligence Test for Children–III and obtained a full scale score of 73, which placed him in the Borderline range of functioning. His scores on achievement tests in the past have indicated significant delays in academic skills, including reading, writing, and math. Language comprehension deficits have also been documented.

Assessing Understanding and Appreciation of Miranda Rights Daniel’s behavior at arrest, when he was read his Miranda rights, and the subsequent interview by police, was assessed with several instruments. Assessing Understanding and Appreciation of Miranda Rights, the instrument developed by Dr. Thomas Grisso, was used to assess Daniel’s understanding and appreciation of his Miranda rights. There are four subtests comprising this instrument. Although these tests cover issues related to Miranda rights, they also provide an assessment of comprehension and understanding of legal issues and rights, and normative samples of adult and juvenile offenders allow comparisons of an individual’s score to other offenders. The CMR requires a paraphrase of Miranda rights. Daniel obtained a score of 8 of a possible 8, which places him in the top 20% of juveniles on this subtest. The CMR-R requires an ability to recognize the similarity between each right and three sentences related to each of these rights. Daniel obtained a score of 11 of 12, a score that was

284

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

better than about 72% of juveniles. The CMR-V evaluates understanding of vocabulary used in communicating Miranda rights. Daniel obtained a score of 10 of 12, which places him in the top one-third. The FRI uses drawings to assess perceptions of the functions of the Miranda warnings. Daniel obtained a score of 20 of a possible 30. His score was about two points below the mean for 13-year-olds. Daniel had difficulty in particular with the right to silence subtest of the FRI, in which he obtained a score of 4 of a possible 10. Overall, Daniel’s scores on the CMR, CMR-R, and CMR-V tests suggest that at present Daniel has an adequate understanding of the vocabulary used and the rights expressed in Miranda warnings, but his scores on the FRI subtests, all of which were below the mean for other juveniles, suggest that Daniel may have had difficulties understanding the nature of interrogation and his right to an attorney at the time he was questioned by police. As part of the assessment of Daniel’s understanding of his rights and his behavior during interrogation by the police, one additional instrument was used. The Gudjonsson Compliance Scale is a self-report questionnaire that measures compliance with authority. Gudjonsson (1997) notes that, “Within the context of police interviewing and custodial confinement, of particular importance is the tendency of some individuals to comply with requests and obey instructions that they would rather not do, for instrumental gains (e.g., in order to terminate the police interview, be released from custody more quickly, escape from the stress of the situation, or to please the interviewer)” (p. 5). This instrument was administered by reading questions to Daniel, who was given a copy of questions to follow along and on which he circled his responses. Daniel’s score on this instrument (12) was considerably higher than the average score of other juvenile offenders (M = 8.9, SD = 3.2). This suggests that he may be more compliant with authority figures, such as police, than other juvenile offenders.

Opinion about Competence to Waive Miranda Warning Daniel’s scores on the Miranda competency instrument raised some concerns about his competence to waive his Miranda rights. He had an adequate understanding of the basic vocabulary used in Miranda but had some confusion about his rights to remain silent and that he could have obtained an attorney prior to questioning. His level of cognitive functioning also raised concerns about his competence to understand and waive arrest rights. Daniel was questioned about his behavior with his brother before he was read his Miranda warning. By that time, he had already responded to questions by the police officer, and was then asked to repeat them after he was taken into custody and was in a police station. The sequence of questioning is important to appreciate in terms of Daniel’s understanding of his rights. By the time the Miranda warning was read to him, Daniel had already provided the arresting officer with information about the incident, and he may have felt that he should continue to respond to the same questions once the Miranda warning was read, as he had already provided this information to the police. His score on the compliance measure suggested that he may be more compliant with authority figures, compared to other juveniles, which may have

The Capacity of Juveniles to Understand and Waive Arrest Rights

285

influenced both his initial response to questions by the police officer as well as his acquiescence after receiving the Miranda warning at the police station. I also showed Daniel the Explanation of Rights form he signed. He recalled signing it and that his case worker and a male were present. He thought the male, who was actually Detective G., was his lawyer. I asked him if he understood he was giving up his right to silence and he said that he did. He believed he had to talk because Detective G. told him that he had to tell him everything that happened. It should also be noted that Daniel may be untruthful if he feels it will serve some purpose. For example, while he had been in detention, he told his mother that he had been beaten and threatened with rape. These allegations were investigated by a juvenile probation counselor who stated that “Daniel finally admitted he had told his mother that these two things were happening because he thought she would be able to get him out of detention.” He has also told several versions of the incident with his brothers that differ from the original statement to the police. Summary Our legal system requires that in order to validly waive interrogation rights, including the rights to silence and counsel, juvenile (and adult) suspects must understand and appreciate the significance of these rights (Miranda v. Arizona, 1966; In re Gault, 1967; Fare v. Michael C., 1979). The point of these laws is not to let guilty adolescents go free or get more lenient dispositions, but instead to ensure that confessions made are reliable, accurate, and obtained through fair means. As the legal system has become more punitive towards juvenile offenders, it has become more critical that youth understand and appreciate their Miranda rights. Research has demonstrated that adolescents, particularly young adolescents, may have higher rates of deficits in their comprehension of Miranda rights as a result of developmental immaturity (Goldstein et al., 2003; Viljoen & Roesch, 2005). In addition, in comparison to adults, adolescents may be more likely to yield to interrogative pressure (Richardson et al., 1998), more likely to waive their interrogation rights (Viljoen et al., 2005), and more likely to falsely take responsibility for acts they did not commit (Redlich & Goodman, 2003). Although courts may allow youths’ parents to be present as a form of additional protection for young suspects, parents may encourage their children to waive their rights (Viljoen et al., 2005). It is important for clinicians to take into account these developmental differences in youths’ comprehension of Miranda rights and their ability to reason about waiver decisions. However, given individual variability in youths’ capacities, clinicians cannot automatically assume that young age equates to poor comprehension. Indeed, although capacity increases with age, there is considerable variability and some 16- and 17-yearold adolescents may have less capacity than some 13- or 14-year-old adolescents. In assessing young people’s comprehension of Miranda rights, Grisso’s Instruments may be a useful tool. Although this instrument has been found to have good psychometric properties, it was developed in the 1970s, and there is concern it may be outdated. To address this issue, these instruments are currently being revised

286

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

and updated (Goldstein et al., 2005). During assessments, police records, accounts of the arrest, and other relevant collateral information should be carefully reviewed. In addition, depending on the characteristics of the case, clinicians should assess youths’ intelligence, achievement, suggestibility, and mental health, as well as the impact of caretaker involvement on the interrogation. Endnotes 1. In order to protect client confidentiality, all identifying information regarding this case was removed and critical case details were extensively altered. 2. This assessment also included an evaluation of Daniel’s competence to stand trial (adjudicative competence). This aspect of the evaluation is not covered here; however, it is discussed in the chapter on assessing youths’ adjudicative competence (Viljoen & Roesch, also in this volume).

References Abramovitch, R., Higgins-Biss, K. L., & Biss, S. R. (1993). Young person’s comprehension of waivers in criminal proceedings. Canadian Journal of Criminology, 35, 309–322. Abramovitch, R., Peterson-Badali, M., & Rohan, M. (1995). Young people’s understanding and assertion of their rights to silence and legal counsel. Canadian Journal of Criminology, 37, 1–18. Arnett, J. (1992). Reckless behavior in adolescence: A developmental perspective. Developmental Review, 12, 339–373. Cauffman, E., & Steinberg, L. (2000). Immaturity of judgment in adolescence: Why adolescents may be less culpable than adults. Behavioral Sciences & the Law, 18, 741–760. Calicchia, J. A., & Santostefano, S. (2004). The assessment of interrogative suggestibility in adolescents: Modalities, gender, and cognitive control. North American Journal of Psychology, 6, 1527–7143. Clare, I. C., Gudjonsson, G. H., Rutter, S. C., & Cross, P. (1994). The inter-rater reliability of the Gudjonsson Suggestibility Scale (Form 2). British Journal of Clinical Psychology, 33, 357–365. Colwell, L. H., Cruise, K. R., Guy, L. S., McCoy, W. K., Fernandez, K., & Ross, H. H. (2005). The influence of psychosocial maturity on male juvenile offenders’ comprehension and understanding of the Miranda warning. Journal of the American Academy of Psychiatry and Law, 33, 444–454. Danielsdottir, G., Sigurgeirdottir, S., Einarsdottir, H. R., & Haraldsson, E. (1993). Interrogative suggestibility in children and its relationship with memory and vocabulary. Personality and Individual Differences, 14, 499–502. Drizen, S., & Leo, R. (2004). The problem of false confessions in the post-DNA world. North Carolina Law Review, 82, 891–1011. Everington, C., Fulero, S. M. (1999). Competence to confess: Measuring understanding and suggestibility of defendants with mental retardation. Mental Retardation, 37, 212–220. Fare v. Michael C., 442 U.S. 707 (1979). Ferguson, A. B., & Douglas, A. C. (1970). A study of juvenile waiver. San Diego Law Review, 7, 39–54. Feld, B. C. (2000). Juveniles’ waiver of legal rights: Confessions, Miranda, and the right to counsel. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp.105–138). Chicago: University of Chicago Press.

The Capacity of Juveniles to Understand and Waive Arrest Rights

287

Giedd, J., Blumenthal, J., Jeffries, N., Castellanos, F., Liu, H., Ijdenbos, A., Paus, T., Evans, A., & Rapoport, J. (1999). Brain development during childhood and adolescence: A longitudinal MRI study. Nature Neuroscience, 2, 861–863. Goldstein, N. E., Condie, L. O., Kalbeitzer, R., Osman, D., & Geier, J. L. (2003). Juvenile offenders‘ Miranda rights comprehension and self-report likelihood of offering false confessions. Assessment, 10, 359–369. Goldstein, N. E., Condie, L. O., & Kalbeitzer, R. (2005). In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 357–369). New York: Guilford Press. Grisso, T. (1980). Juveniles’ capacities to waive Miranda rights: An empirical analysis. California Law Review, 68, 1134–1166. Grisso, T. (1981). Juvenile’s waiver of rights: Legal and psychological competence. New York: Plenum Press. Grisso, T. (1997). The competence of adolescents as trial defendants. Psychology, Public Policy, and Law, 3, 3–32. Grisso, T. (1998a). Instruments for assessing understanding and appreciation of Miranda rights. Sarasota, FL: Professional Resources. Grisso, T. (1998b). Forensic evaluations of juveniles. Sarasota, FL: Professional Resource Exchange. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments. New York: Kluwer Academic/Plenum Press. Grisso, T. (2004). Reply to “A critical review of published competency-to-confess measures.” Law and Human Behavior, 28, 719–724. Grisso, T., & Pomicter, C. (1977). Interrogation of juveniles: An empirical study of procedures, safeguards, and rights waiver. Law and Human Behavior, 1, 321–342. Grisso, T., Steinberg, L., Woolard, J., Cauffman, E., Scott, E., Graham, S., Lexcen, F., Reppucci, N. D., & Schwartz, R. (2003). Juveniles’ competence to stand trial: A comparison of adolescents’ and adults’ capacities as trial defendants. Law and Human Behavior, 27, 333–363. Gudjonsson, G. H. (1984). A new scale of interrogative suggestibility. Personality and Individual Differences, 3, 303–314. Gudjonsson, G. H. (1990). The relationship of intellectual skills to suggestibility, compliance and acquiescence. Personality and Individual Differences, 11, 185–186. Gudjonsson, G. H. (1991). The effects of intelligence and memory on group differences in suggestibility and compliance. Personality and Individual Differences, 12, 503–505. Gudjonsson, G. H. (1992). Interrogative suggestibility: Factor analysis of the Gudjonsson Suggestibility Scale (GSS 2). Personality and Individual Differences, 13, 479–481. Gudjonsson, G. H. (1997). Gudjonsson Suggestibility Scales. East Sussex: Psychology Press. Gudjonsson, G. H., & Clark, N. K. (1986). Suggestibility in police interrogation: a social psychological model. Social Behaviour, 1, 83–104. Gudjonsson, G. H., & Singh, K. K. (1984a). Interrogative suggestibility and delinquent boys: An empirical validation study. Personality and Individual Differences, 5, 425–430. Gudjonsson, G. H., & Singh, K. K. (1984b). The relationship between criminal conviction and interrogative suggestibility among delinquent boys. Journal of Adolescence, 7, 29–34. Halpern-Felsher, B. L., & Cauffman, E. (2001). Costs and benefits of a decision. Decisionmaking competence in adolescents and adults. Journal of Applied Developmental Psychology, 22, 257–273. Haynie, D. L. (2002). Friendship networks and delinquency: The relative nature of peer delinquency. Journal of Quantitative Criminology, 18, 99–134. Heilbrun, K., Marczyk, G. R., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York: Oxford.

288

Ronald Roesch, Kaitlyn McLachlan, and Jodi L. Viljoen

Helms, J. (2003). Analysis of Miranda reading levels across jurisdictions: Implications for evaluating waiver competency. Journal of Forensic Psychology Practice, 3, 25–37. In re Gault, 387 U.S. 1 (1967). Kassin, S. M. (2005). On the psychology of confessions: Does innocence put innocents at risk? American Psychologist, 60, 215–228. Kazdin, A. E. (2000). Adolescent development, mental disorders, and decision making of delinquent youths. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 33–65). Chicago, IL: University of Chicago Press. Kent v. United States, 383 U.S. 541 (1966). Lassiter, G. D. (Ed.). (2004). Interrogations, confessions, and entrapment. (Vol. 20). New York: Kluwer Academic/Plenum. Lexcen, F., & Redding, R. (2002). Mental health needs of juvenile offenders. Juvenile Correctional Mental Health Report, 3, 1–16. Miranda v. Arizona, 384 U.S. 436 (1966). Merckelbach, H., Muris, P., Wessel, I., & van Koppen, P. J. (1998). The Gudjonsson Suggestibility Scale (GSS): Further data on its reliability, validity, and metacognition correlates. Social Behaviour and Personality, 26, 203–210. McFarlane, F., Powell, M. B., & Dudgeon, P. (2002). An examination of the degree to which IQ, memory performance, socio-economic status and gender predict young children’s suggestibility. Legal and Criminological Psychology, 7, 227–239. Moffitt, T. E. (1993). Adolescence-limited and life-course-persistent antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Muris, P., Meesters, C., & Merckelbach, H. (2004). Correlates of the Gudjonsson Suggestibility Scale in delinquent adolescents. Psychological Reports, 94, 264–266. Oberlander, L. B., Goldstein, N. E., & Goldstein, A. M. (2003). Competence to confess. In A. M. Goldstein (Ed.), Handbook of psychology, Volume 11: Forensic psychology (pp. 335–357). New York: Wiley. Owen-Kostelnik, J., Reppucci, N. D., & Meyer, J. R. (2006). Testimony and interrogation of minors: Assumptions about maturity and morality. American Psychologist, 61, 286–304. Penney, S. R., & Moretti, M. M. (2005). The transfer of juveniles to adult court in Canada and the United States: Confused agendas and compromised assessment procedures. International Journal of Forensic Mental Health, 4, 19–37. Peterson-Badali, M., & Abramovitch, R. (1993). Grade related changes in young people’s reasoning about plea decisions. Law and Human Behavior, 17, 537–552. Peterson-Badali, M., Abramovitch, R., Koegl, C. J., & Ruck, M. D. (1999). Young people’s experience of the Canadian youth justice system: Interacting with police and legal counsel. Behavioral Sciences and the Law, 17, 455–465. Polczyk, R. (2005). Interrogative suggestibility: Cross-cultural stability of psychometric and correlational properties of the Gudjonsson Suggestibility Scales. Personality and Individual Differences, 38, 117–186. Pollard, R., Trowbridge, B., Slade, P. D., Streissguth, A. P., Laktonen, A., & Townes, B. D. (2004). Interrogative suggestibility in a U.S. context: Some preliminary data on normal subjects. Personality and Individual Differences, 37, 1101–1108. Redding, R. E., Goldstein, N. E. S., & Heilbrun, K. (2005). Juvenile delinquency: Past and present. In K. Heilbrun, N. E. S. Goldstein, & R. E. Redding (Eds.), Juvenile delinquency: Prevention, assessment, and intervention (pp. 3–18). New York: Oxford University Press.

The Capacity of Juveniles to Understand and Waive Arrest Rights

289

Redlich, A. D., & Goodman, S. (2003). Taking responsibility for an act not committed: The influence of age and suggestibility. Law and Human Behavior, 27, 141–156. Redlich, A. D., Silverman, M., & Steiner, H. (2003). Pre-adjudicative and adjudicative competence in juveniles and young adults. Behavioral Sciences and the Law, 21, 393–410. Richardson, G., & Kelly, T. P. (1995). The relationship between intelligence, memory and interrogative suggestibility in young offenders. Psychology, Crime & Law, 1, 283–290. Richardson, G., & Kelly, T. P. (2004). A study in the relationship between interrogative suggestibility, compliance and social desirability in institutionalized adolescents. Personality and Individual Differences, 36, 485–494. Richardson, G., & Smith, P. (1993). The inter-rater reliability of the Gudjonsson Suggestibility Scale. Personality and Individual Differences, 14, 251–253. Richardson, G., Gudjonnson, G. H., & Kelly, T. P. (1995). Interrogative suggestibility in an adolescent forensic population. Journal of Adolescence, 18, 211–216. Richardson, G. R., Kelly, T. P., & Bryce, A. (1998). The response alternatives of suggestible and non-suggestible adolescent offenders. Personality and Individual Differences, 24, 295–297. Roper v. Simmons, 543 U.S. 541 (2005). Rogers, R., Jordan, M. J., & Harrison, K. S. (2004). A critical review of published competencyto-confess measures. Law and Human Behavior, 28, 707–718. Rosado, R. (2000). Understanding adolescents: A juvenile court training curriculum. Washington, DC: American Bar Association Juvenile Justice Center. Ryba, N. L., & S. Brodsky, S. L. (2005, March). Competency to waive Miranda rights: Frequency and style of test usage. Paper presented at the American Psychology-Law Society Conference, La Jolla, CA. Salekin, R. T. (2002). Juvenile transfer to adult court: How can developmental and child psychology inform policy decision making? In B. L. Bottoms, M. B. Kovera, & B. D. McAuliff (Eds.), Children, social science, and the law (pp. 203–232). Cambridge, U.K.: Cambridge University Press. Salekin, R. T., Yff, R. M. A., Neumann, C. S., Leistico, A. R., & Zalot, A. A. (2002). Juvenile transfer to adult courts: A look at the prototypes for dangerousness, sophistication, maturity, and amenability to treatment through a legal lens. Psychology, Public Policy, and Law, 8, 373–410. Singh, K. K., & Gudjonsson, G. H. (1992). Interrogative suggestibility among adolescent boys and its relationship with intelligence, memory, and cognitive set. Journal of Adolescence, 15, 155–161. Teplin, L. A., Abram, K. M., McClelland, G., M., Dulcan, M. K., & Mericle, A. A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 59, 1133–1143. Viljoen, J. L., Klaver, J., & Roesch, R. (2005). Legal decisions of preadolescent and adolescent defendants: Predictors of confessions, pleas, communication with attorneys, and appeals. Law and Human Behavior, 29, 253–257. Viljoen, J. L., & Roesch, R. (2005). Competence to waive interrogation rights and adjudicative competence in adolescent defendants: Cognitive development, attorney contact, and psychological symptoms. Law and Human Behavior, 29, 723–742. Warren, A., Hulse-Trotter, K., & Tubbs, E. C. (1991). Inducing resistance to suggestibility in children. Law and Human Behavior, 15, 273–285. Woolard, J. (2005, March). Parental involvement and juvenile participation: Comparing parents’ and youths’ decision-making about the juvenile justice process. Paper presented at the Annual Meeting of the American Psychology-Law Society, La Jolla, California.

12 Assessing Adolescents’ Adjudicative Competence Jodi L. Viljoen and Ronald Roesch

Assessing Adolescents’ Adjudicative Competence It is a long-held principle within the adult criminal court that individuals charged with crimes must be competent to proceed to adjudication (competent to stand trial), meaning that they must be able to adequately understand and participate in legal proceedings against them. Although historically the requirement that defendants must be competent did not apply to juvenile defendants, over the past several decades courts have increasingly required that juvenile defendants must be competent to proceed to adjudication (Scott & Grisso, 2005). This trend has lead to growth in the numbers of competency evaluations requested for juveniles (Grisso & Quinlan, 2005; Redding & Frost, 2001). The task of assessing a juvenile’s adjudicative competency poses significant challenges. Although there have been substantial developments in tools and approaches for assessing adults’ adjudicative competency (Grisso, 2003), validated tools for assessing juveniles’ adjudicative competency are lacking. Therefore, clinicians have, until recently, had to develop their own clinical techniques in the absence of adequate of empirical guidance, or extend adult tools to a population with which they have not been properly validated. This chapter describes currently available information regarding the assessment of adolescents’ competency, and focuses on the unique developmental considerations that may arise in evaluating adolescents’ competency.1 To start, relevant legal standards and processes are discussed, and research on adolescents’ legal capacities is reviewed. Following that, the evaluation process is described. Background on Juvenile Competence Legal Requirements for Adolescents’ Competence Competence in Adult Criminal Court Since as far back as the 17th century, the criminal justice system has required that adult defendants accused of crimes must be competent to proceed to adjudication (Bonnie, 1992). This requirement aims to protect the fairness and dignity of legal proceedings, the accuracy of adjudications, and defendants’ decision-making autonomy. 291

292

Jodi L. Viljoen and Ronald Roesch

The modern American legal standard for competence to stand trial was established in 1960 in Dusky v. United States. According to Dusky, a defendant must have “rational as well as factual understanding of proceedings” and “sufficient present ability to consult with his lawyer” (p. 402). Later court cases have emphasized that defendants must be able to assist his or her attorney (Drope v. Missouri, 1975), and adequately reason about specific legal decisions, such as how to plead and whether to assert or waive the right to counsel (Godinez v. Moran, 1993). Bonnie (1992) has referred to these reasoning abilities as “decisional competence,” whereas he considers factual and rational understanding and the ability to communicate with counsel to be “foundational” abilities. The Canadian legal standard for adjudicative competence (fitness to stand trial) is similar to the American standard, but is narrower in scope and focuses on the “foundational” abilities of understanding and communication (Zapf & Roesch, 2001). In particular, as defined in the Criminal Code of Canada (1985, S. 2), defendants must “understand the nature and object of legal proceedings,” “understand the possible consequences of legal proceedings,” and be able to “communicate with counsel.” Although adjudicative competence is often raised at the same time as the insanity defense, they are separate issues. Specifically, while the insanity defense focuses on a defendant’s mental state at the time of the offense, adjudicative competence focuses on a defendant’s mental state and legal capacities at the time of adjudication. The Growing Importance of Juvenile Competency Although the initial focus of the juvenile justice system was on rehabilitation, the juvenile justice system has gradually evolved to become more punishment oriented. During the 1960s and 1970s, there was growing disillusionment about the juvenile justice system’s effectiveness in treating youth, as well as civil liberty concerns about the lack of consistency and procedural safeguards for youth. In 1966, Justice Fortas argued that a child handled by the juvenile justice system “receives the worst of both worlds” (Kent v. United States, 1966, p. 555–556). Specifically, “he gets neither the protection afforded to adults nor the solicitous care and rejuvenative treatment postulated for children.” The following year, In re Gault (1967) extended a number of rights that apply to adults involved in criminal proceeding to juveniles involved in delinquency proceedings. These rights included the rights of notice of charges, assistance of counsel, cross-examination of witnesses, and privilege against self-incrimination. The rights of adolescents were extended further in the case of In re Winship (1970), which established that findings of guilt in juvenile court must, as in adult court, be established beyond a reasonable doubt. Although these cases did not specifically establish a requirement for juveniles to be competent, they emphasized an increasing concern regarding juveniles’ rights and protections, and opened the door for juvenile competency to be considered. By the late 1980s, approximately one third of states recognized the right of juveniles to be competent to stand trial in juvenile court (Grisso, Miller, & Sales, 1987). Nevertheless, the issue of adjudicative competence was rarely raised at that time. During the 1990s, violent crime by juveniles increased (Snyder, Sickmund, & Poe-Yamagata, 1996). Although this trend has since abated, public alarm over juvenile violence was sufficient enough to lead to a number of dramatic changes in the juvenile justice system. These changes, which remain in place, effectively made the American and Canadian juvenile justice system more similar to the adult criminal justice

Assessing Adolescents’ Adjudicative Competence

293

system. Specifically, transfer to adult court has become easier and more common, and juvenile court dispositions have also become lengthier and more severe (Gilles & Jackson, 2003; Redding, Goldstein, & Heilbrun, 2005). In addition, it is no longer guaranteed that juvenile court hearings in some states will be held confidential or that a youth’s juvenile court records will be expunged upon turning 18 years old. These changes have made it more important that youth are able to understand and effectively participate in legal proceedings against them. Therefore, more and more jurisdictions have explicitly established a requirement that juveniles tried in juvenile court as well as criminal court must be competent (Scott & Grisso, 2005; Redding & Frost, 2001; Youth Criminal Justice Act, 2002). Standards of Juvenile Competence Although there is growing consensus that juveniles must be competent, there is less agreement as to what legal standard of competence should apply. In general, the adult standard of competency has been applied to youth tried in adult criminal court (Redding & Frost, 2001). This means that youth tried in criminal court must be able to understand legal proceedings and consult with counsel. Presumably, youth must also have adequate decision-making capacities, as required by Godinez vs. Moran (1993).2 For youth tried in juvenile court, however, legal standards remain unclear and inconsistent. Although most states who have addressed the issue have ruled that adjudicative competence requirements apply to juveniles tried in juvenile court, a number of states have not yet even addressed the issue (Redding & Frost, 2001; Scott & Grisso, 2005). Courts that have ruled that juveniles tried in juvenile court must be competent have typically held that juveniles must possess the same types of legal capacities as adults (factual and rational understanding, and communication). However, courts differ as to whether juveniles required the same levels of these legal capacities as adults (Redding & Frost, 2001). Specifically, some courts have ruled that lower levels of these abilities may suffice for juveniles tried in juvenile court. Still another source of uncertainty regarding legal standards for juvenile competence is what constitutes an acceptable basis for a finding of incompetence. Historically, legal standards of competence have focused on mental illness and mental retardation as possible causes of legal deficits (Grisso, 2005). However, for adolescents, legal deficits may stem from developmental immaturity. Although at least several states have explicitly recognized immaturity as a basis for a finding of incompetence, most states have not yet explicitly offered a finding on this issue (Grisso, 2005; In re Causey 1978; In re Hyrum, H., 2006). Nevertheless, many juvenile courts appear to recognize developmental immaturity as a basis for findings of incompetence, even without a specific legal mandate to do so.

The Legal Process There are a number of stages in legal proceedings involving competence (Grisso, 2003). The first step involves requesting a competence evaluation; this step is often called “raising the issue” of competence. Following this, a mental health professional typically will evaluate the defendant’s competence and then the court will make a determination as to

294

Jodi L. Viljoen and Ronald Roesch

whether the defendant is incompetent. If a defendant is deemed incompetent, efforts are made to “restore” the defendant to competence if he or she is considered remediable, and the defendant’s competence is periodically re-evaluated through rehearings. In the following section, these stages in juvenile competence proceedings are examined. Raising the Issue of Competence When it appears that a juvenile defendant may lack the necessary legal capacities to understand and/or participate in the adjudicative process, the issue of competence must be raised by the defense attorney, judge, or prosecutor. It is unclear exactly how commonly the issue of juvenile competence is raised. However, there is evidence that the number of requests for evaluations is increasing (Grisso & Quinlan, 2005; Redding & Frost, 2001). As with adults, concerns have been expressed that the issue of juvenile competence may be inappropriately raised to delay the trial or to obtain mental health treatment when more direct means are not easily attainable (Barnum & Grisso, 1994; Grisso et al., 1987; Roesch & Golding, 1980). Although obtaining treatment may be an important goal, using competency evaluations to do this may have negative effects, such as delaying the trial and leading to possible stigma for the youth. Although overuse of competency referrals is a serious concern, an even greater concern is that juvenile defendants who are potentially incompetent are not identified (Barnum & Grisso, 1994). In order to prevent under-identification of potentially incompetent youth, Grisso et al. (1987) recommended that a juvenile defendant’s competence automatically be evaluated when a youth is 12 years old or younger, has a prior diagnosis of or treatment for mental illness or mental retardation, has intellectual deficits or a learning disability, and/or appears to have deficits in memory, attention, or reality testing. Competency Evaluation and Judicial Determination Once the issue of competence is raised, courts generally order that an evaluation be conducted. In several jurisdictions, including Virginia and the District of Columbia, competence must be evaluated whenever a youth is transferred to adult court (Redding & Frost, 2001). However, the large majority of jurisdictions do not have such a rule. Typically, state statutes require that juvenile competency evaluations be conducted by a licensed physician, psychiatrist, or psychologist, and some states require two separate competency evaluations. As with adult defendants, there is a preference for juvenile evaluations to be conducted on an outpatient basis unless an inpatient setting is considered necessary (Redding & Frost, 2001). The length of time given to complete a competence evaluation varies considerably across states ranging from 10–90 days (Grisso, 1998). Short evaluation periods may help prevent unnecessary trial delays for youth, but it may be challenging for evaluators to conduct comprehensive evaluations in short periods. Based on a survey of over 80 juvenile court clinics, Grisso and Quinlan (2005) found that the average time that evaluators spend on juveniles’ competency evaluations ranges from 2–30 hr, with an average of 8 hrs. As with adult defendants, relatively few youth (14–18%) who are referred for competence evaluations appear to be found incompetent (Cowden & McKee, 1995; McKee, 1998; McKee & Shea, 1999). However, young adolescents may be more likely than older adolescents to be found incompetent. For instance, a study from South

Assessing Adolescents’ Adjudicative Competence

295

Carolina reported that only 17% of defendants younger than 12 were judged competent to stand trial as compared to 84% of 15-year-olds (Cowden & McKee, 1995; see also Baerger, Griffin, Lyons, & Simmons, 2003). Although the large majority of adults who are judged incompetent have psychotic disorders, as few as 16% of youth found incompetent have psychotic disorders (McGaha, Otto, McClaren, & Petrila, 2001). To a large extent, this may be because psychotic disorders often do not develop until late adolescence or early adulthood (American Psychological Association, 2000). On the other hand, mental retardation may be fairly common among incompetent adolescent defendants according to figures from Florida (McGaha et al., 2001). Once an evaluation of competence is complete, a judicial determination regarding competence is made. As competency is a legal issue, a judge must make the final determination. However, research with adult defendants has indicated that courts defer to the opinions of mental health professionals in the large majority of cases (Zapf, Hubbard, Cooper, Wheeles, & Ronan, 2004). It is likely that courts also defer to clinicians in cases involving youth, although research has not yet investigated this. Treatment and Rehearings for Youth Found Incompetent If a defendant is deemed incompetent by the court, the court must determine whether a youth can be rendered competent through treatment. With adults, the term restored to competence is used because it is assumed that the defendant was previously competent but was rendered incompetent by a transient condition, most often mental illness. For adolescents, however, the notion of restoration may be misleading because an adolescent may be incompetent as a result of developmental immaturity and therefore may never yet have attained competence. With adult defendants, the 1972 case of Jackson v. Indiana established that adult defendants could not be held indefinitely if they had no prospect of being restored to competence. Therefore, states set time limits (typically around 6–18 months) for the length of time adult defendants could be held as incompetent (Roesch, Ogloff, & Golding, 1993). Many states do not yet have guidelines regarding the remediation or restoration of juvenile competence, but a number of states have set maximum durations on restoration services (Redding & Frost, 2001). Length of time allowed for juvenile restoration services vary considerably. Often, longer periods of time are permitted for felony charges than misdemeanor offenses, and some maximum duration time limits are quite long. For instance, in North Carolina a youth may be committed to restoration services 10 years for a felony or for 5 years for a misdemeanor (Redding & Frost, 2001). In general, there is a preference for juvenile restoration services to occur in the community unless there is evidence that an inpatient setting is needed (Redding & Frost, 2001). If treatment is ordered, then competence is periodically reevaluated. Although the requirements for reevaluations and rehearings vary across states, Redding and Frost argue that frequent reviews may be particularly important for youth because of the “relatively malleable nature of child and adolescent mental status and the need to ensure that adjudication is not delayed any longer than necessary” (p. 391). Little research has examined whether youth can be restored to competence and if so, which remediation approaches are most effective. Given youths’ developmental immaturity and the possibility that legal deficits may stem from incomplete

296

Jodi L. Viljoen and Ronald Roesch

developmental processes, it may be difficult to remediate youth. Cooper (1997), for instance, found that although youth evidenced improved legal abilities following viewing an educational videotape, the large majority of youth still did not meet adult cut-off scores for competence. Similarly, Viljoen, Odgers, Grisso, and Tillbrook (in press) found that teaching did not erase important developmental differences in youths’ and adults’ legal understanding. Nevertheless, McGaha et al. (2001) found that most youth who were found incompetent in Florida were restored to competence. As that study examined only judicial determinations of competence rather than defendants’ functional legal deficits, it is unclear to what extent these youths’ legal capacities improved following treatment. In some cases, there may have been pressure to find the youth competent in order to proceed with adjudication, even if the youths’ legal capacities were questionable. At the present time, there is considerable debate as to what is the appropriate disposition or outcome for youth considered to be unrestorable. Bonnie and Grisso (2000) suggested that if a youth is found incompetent in adult court, the case could be heard in juvenile court, provided that the sanctions in juvenile court are less severe than those in adult court (see also Scott & Grisso, 2005). Other options may be to drop charges, initiate civil commitment or other mental health services, and/or initiate dependency proceedings.

Legal Capacities of Adolescents As with adult defendants, all states presume that youth are competent, and the defense counsel bears the burden of proving otherwise (Redding & Frost, 2001). However, research has convincingly demonstrated that adolescents, especially young adolescents, have high rates of legal deficits in comparison to older adolescents and adults. In an important recent study, Grisso et al. (2003) found that one third of youth aged 11 to 13 and one fifth of youth aged 14–15 demonstrated significant impairments in understanding of legal proceedings and/or legal reasoning (see also Burnett, Noblin, & Prossor, 2004; Peterson-Badali & Abramovitch, 1992; Satvitsky & Karras, 1984; Viljoen & Roesch, 2005). Also, young adolescents have been found to be more likely than older individuals to waive their legal rights, such as the right to silence and counsel (Viljoen, Klaver, & Roesch, 2005). Research has revealed that age-related differences in legal capacities stem, in part, from immature cognitive development (Viljoen & Roesch, 2005). In addition, psychosocial development appears to influence the acquisition of the legal capacities, particularly reasoning and judgment (Steinberg & Cauffman, 1996; Scott, Reppucci, & Woolard, 1995). Specifically, research has indicated that adolescents aged 11–13 are less likely to recognize risks and long-term consequences of legal judgments than older adolescents and adults (Grisso et al., 2003). These findings suggest that clinicians who conduct competency evaluations should be especially vigilant in examining the legal capacities of young defendants and be sensitive to the possible impact of cognitive and psychosocial development on legal capacities. Notably, however, there can be considerable variability within age categories. Therefore, clinicians should not infer incompetence on the basis of young age alone.

Assessing Adolescents’ Adjudicative Competence

297

In addition to young age and immaturity, a number of other factors may place an adolescent at risk of legal deficits, including attention deficits and hyperactivity, impaired verbal abilities, and low intelligence (Viljoen & Roesch, 2005). Research has indicated that low intelligence may be a particularly stronger risk factor among younger adolescents than among older adolescents, possibly because legal capacities are less ingrained at a young age and therefore more strongly associated with cognitive ability (Viljoen & Roesch, 2005). Severe psychopathology appears to be another important risk factor for incompetence (Cowden & McKee, 1995). However, given that many youth with severe mental disorders are found competent, severe psychopathology cannot be equated with incompetence. It is often assumed that youth who have been previously arrested or convicted will be knowledgeable about legal proceedings; this assumption generally has not been supported by research (Grisso, 1997; Grisso et al., 2003). Therefore, evaluators should be careful not to assume that youth with prior arrests or convictions are competent.

Evaluation Juvenile competency evaluations differ in important ways from general clinical evaluations. Unlike general psychological evaluations, the primary goal of juvenile competency evaluations is not to provide information about a youth’s diagnosis and treatment needs. Instead, the primary purpose is to collect information about the youth’s legal capacities and any deficits that may affect his or her ability to function as a defendant (Grisso, 2003, 2005). In the following sections, the process of conducting a juvenile competency evaluation is described, including preparation for the evaluation, collecting data, and interpreting data. Following that, several competency assessment tools that may potentially be useful are examined. To demonstrate how these principles apply in practice, a case example is provided. Readers are strongly encouraged to read Grisso’s (2005) recent book on this topic for more detailed information on conducting juvenile competency evaluations. For useful examples of juvenile competency reports, readers are referred to the MacArthur Juvenile Court Training Curriculum (Rosado, 2000), Heilbrun, Marczyk, and DeMatteo (2002), and Grisso (2005).

Preparation for Evaluation In preparing to conduct a juvenile competency evaluation, evaluators should seek relevant records, including educational, medical, mental health, juvenile justice, and social service records (Grisso, 2005). Because these records can often take awhile to obtain, they should be sought early in the evaluation process. Youth’s attorneys may be able to assist with the process of obtaining relevant records. Despite the importance of reviewing background records, research has indicated that clinicians often fail to obtain relevant records (Christy, Douglas, Otto, & Petrila, 2004).

298

Jodi L. Viljoen and Ronald Roesch

To ensure that the evaluation provides useful and relevant information, evaluators should discuss the reason for the referral with the party initiating the referral, typically the defense attorney (Grisso, 2005). Evaluators should speak with the defendant attorney about their observations regarding the youth’s legal capacities (see Grisso, 2005 for a questionnaire that clinicians may use), and they should ask the defense attorney if she or he would like to be present during the evaluator’s interviews with the youth. Evaluators should also contact a youth’s caretakers to notify them about the evaluation and to determine how they might be able to participate in the evaluation. Although there is typically no legal obligation to involve caretakers, there are important ethical and practical reasons to do so (Grisso, 2005). In general clinical practice, it is very uncommon to evaluate juveniles without involving parents. Additionally, caretakers can provide important information about children and may be able to help evaluators to access relevant records.

Conducting the Evaluation Juvenile competency evaluations should contain information about youths’ developmental history and current developmental status, their clinical history and current clinical features, and their legal circumstances and legal capacities (Grisso, 2005). Research has indicated that clinicians often do quite well in presenting information about youths’ clinical features (Christy et al., 2004). However, information on youths’ legal capacities is often lacking. In gathering information relevant to these domains, evaluators should review records, and conduct interviews with youth and their caretakers. Prior to each interview, examiners should clearly explain their identity, and the nature of the evaluation. In addition, examiners must explain the limits of confidentiality, particularly that statements made during the interview will not be kept confidential but rather will be given to the court. Psychological testing may be useful. Intelligence tests, particularly the Wechsler tests, and personality tests, particularly the Minnesota Multiphasic Personality Inventory–Adolescent and Minnesota Multiphasic Personality Inventory–2, are used fairly commonly in juvenile competency evaluations (Christy et al., 2004; Ryba, Cooper, & Zapf, 2003). Competency assessment tools are used less frequently, but the use of such tools is recommended (competency assessment tools are described later in the chapter). In choosing appropriate tests, the evaluator should consider the characteristics of the child, such as his or her age, and clinical presentation, the availability of other data about a youth such prior psychological testing, and practical constraints such as the amount of time available to conduct an evaluation (Grisso, 2005).

Data Interpretation and Preparation of the Report In order to protect youths’ rights against self-incrimination, clinicians should be careful to avoid including incriminating information about the youth’s current charge in their reports (Grisso, 2005). As data are collected and the report is written, examiners

Assessing Adolescents’ Adjudicative Competence

299

should consider how results apply to each of the primary legal questions at issue in juvenile competency evaluations. These questions, which are described in more detail below, include (Grisso, 2005): • • • •

What are the defendant’s functional legal capacities? What contextual factors may affect the legal capacities required by the defendant? What are possible causes of legal deficits? What are possible interventions to address legal deficits?

What Are the Defendant’s Functional Legal Abilities? Due to differences in legal standards, the particular functional abilities that evaluators should examine may vary somewhat from jurisdiction to jurisdiction. Evaluators should, therefore, be familiar with the legal standards that are applied in their jurisdiction of practice. In general, legal standards for juvenile competency focus on whether the youth is able to understand and appreciate their charges, the consequences of a finding of guilt or delinquency, the role of key legal players, and the meaning of evidence and pleas. In addition, youth must typically be able to communicate adequately with their attorney, conduct themselves appropriately during legal proceedings, and reason about legal decisions such as how to plead. Therefore, information relevant to each of these areas should be described in the report. What Contextual Factors May Affect the Legal Abilities Required by the Defendant? Legal requirements regarding the nature and degree of defendants’ legal capacities are not absolute and invariant (Grisso, 2003). Instead, the specific legal abilities required by youth may depend on the particular characteristics of their case. Therefore, it is important for evaluators to examine contextual factors that may affect the nature and degree of legal capacities that may be required, such as the complexity of the trial, whether the defendant may be required to testify, the likely length of the trial, and social supports available to the defendant (Grisso, 2003). For youth, several contextual factors are of particular importance. First, whether a juvenile is tried in adult criminal or juvenile court may affect the types and levels of legal capacities that are required (Bonnie & Grisso, 2000; Grisso, 1998, 2005). In general, trial in criminal court may place greater demand on youths’ capacities than trial in juvenile court. If transferred to criminal court, a youth may require an understanding of certain legal concepts that may not arise in juvenile court, such as the role of juries and the transfer process. Another contextual factor that is important to consider in juvenile competency cases is caretakers’ involvement (Grisso, 2005). Although caretakers may facilitate youths’ legal capacities at times, there may be situations in which caretakers may hinder youths’ ability to effectively function as trial defendants. Although young defendants alone (provided they are deemed competent) have the power to make legal decisions regarding their adjudication, caretakers may assume that they have this authority and place excessive pressure on their children to make certain decisions (Woolard, 2005). In addition, caretakers may have inadequate legal capacities themselves, and may provide children with advice that, from a legal perspective, is not necessarily optimal, such as advice to waive their rights (Grisso & Pomicter, 1978).

300

Jodi L. Viljoen and Ronald Roesch

What Are Possible Causes of Legal Deficits? If a youth exhibits legal deficits, it is important to delineate possible causes of legal deficits, such as psychopathology, cognitive impairments, and immaturity. As described earlier, although legal standards have traditionally focused on psychopathology and mental retardation as possible causes of legal deficits, courts appear to be increasingly recognizing immaturity as a possible basis for findings of incompetence (Grisso & Quinlan, 2005). There are two primary reasons that knowledge of the causes of legal deficits is relevant (Grisso, 2003). First, knowledge about potential causes of functional legal deficits is useful in planning treatment to remediate legal deficits. In addition, courts are interested in causal explanations for functional deficits in order to rule out the possibility of feigned deficits, or if legal deficits may stem from sources that could be easily remediated without psychiatric treatment, such as simply a lack of education. Despite the importance of information on causes of legal deficits, many reports appear to lack this information (Christy et al., 2004). Research has suggested that clinicians may not be good at recognizing simulated impairments in adolescents (Faust, Hart, Guilmette, & Arkes, 1988), and measures of competence may be vulnerable to feigning (Rogers, Sewell, Grandjean, & Vitacco, 2002). However, little research exists by which to assist clinicians in evaluating malingered incompetence in youth. As a general strategy, evaluators should examine inconsistencies in performance, which may be indicative of feigning. With respect to clinical presentations, evaluators should be vigilant of absurd and implausible symptoms, unusual combinations of symptoms, overendorsement of diverse symptoms, sudden onset and resolution of symptoms, inconsistent reports of symptoms, and discrepancies between self-report and clinical observations (McCann, 1998; Rogers, 1997). Also, clinicians may find the Structured Interview of Reported Symptoms useful in detecting malingering of psychopathology. Preliminary research has supported the use of this instrument with adolescents (Rogers, Hinds, & Sewell, 1996). In addition to ruling out malingering, clinicians should rule out the possibility that legal deficits stem from simply a lack of education that is easily remediable (Grisso, 2003, 2005). To do so, evaluators can attempt to teach the youth information and then reassess whether his or her legal understanding improves. If there is improvement, evaluators should examine if this is retained even after several days has passed. What Are Possible Interventions for Legal Deficits? In cases in which a youth demonstrates legal deficits, evaluators should consider whether an appropriate intervention exists, the specific type of intervention required, and how and where this intervention could be obtained (Grisso, 2005). Evaluators should also offer an opinion regarding the likelihood that the proposed intervention will be effective in remediating the particular legal deficits exhibited by a youth, and how long this would take. Research in Florida has indicated that a sizable proportion of juvenile competency reports do not contain this information (Christy et al., 2004). In considering potential interventions, evaluators should consider both the particular legal deficits exhibited by a youth and the causes of the legal deficits. In many cases, evaluators may choose to recommend psychoeducational interventions in which youth are taught relevant concepts and skills in the areas in which they

Assessing Adolescents’ Adjudicative Competence

301

demonstrate deficits. If legal deficits appear to stem from an underlying mental disorder, evaluators could recommend treatment of the disorder using empiricallysupported interventions. At the present time, there is reason to believe that it may be difficult to remediate legal deficits in adolescents, although little research has examined this. In a recent study, Viljoen, Odgers, Grisso, and Tillbrook (2006) reported that young adolescents were less likely than older individuals to show improved understanding of basic legal concepts following teaching. It may be even more difficult to teach youth how to apply legal concepts to their own cases and how to reason about legal decisions. Is the Youth Competent to Stand Trial? Often, judges expect evaluators to offer an opinion, based on their evaluation, as to whether a defendant is competent to stand trial (Grisso, 2005). In general, conclusory opinions by evaluators are permitted within evidentiary law (Heilbrun, 2001), and in Florida an opinion about a defendant’s competence is even required by law (Christy et al., 2004). Within the psychological community, however, there is considerable debate as to whether clinicians should offer an opinion on the ultimate legal issue of whether a defendant is competent. Although forensic evaluators hold diverse opinions on this issue (Ryba et al., 2003), many scholars believe that evaluators should not offer ultimate opinions regarding competence, as this decision is a legal and moral one that should be made by the courts (Grisso, 2003; Tillbrook, Mumley, & Grisso, 2003, but see Rogers & Ewing, 1989). Given that legal standards for juvenile competence are currently unclear, it may be particularly difficult for examiners to legitimately offer an ultimate conclusion as to whether a youth meets legal criteria for incompetence (see Grisso, 2005). Instead, it may be most appropriate to simply describe the youth’s legal capacities in detail, and allow the court to make a decision. If conclusions regarding competency are made, it is essential that evaluators provide a rationale for this judgment so that the court can evaluate the logic of the conclusions. Multicultural Considerations As with all forensic evaluations, there are a number of important cultural considerations in conducting juvenile competency evaluations. Due to experiences with prejudice and discrimination, ethnic minority youth and their families may be understandably mistrustful and guarded with anyone associated with mainstream culture (Sue & Sue, 1999). As such, evaluators should work hard to establish adequate rapport. If a minority youth appears guarded or uncooperative in the context of a juvenile competency evaluation, evaluators should be sensitive as to how cultural factors may contribute to this presentation. Evaluators should strive to use psychological instruments that have been validated with ethnic minority youth. Unfortunately, at the present time, many adolescent psychological instruments lack adequate research with diverse youth. Evaluators should

302

Jodi L. Viljoen and Ronald Roesch

also be sensitive to language issues. An interpreter should be obtained if the youth or their caretakers would like to communicate in a language in which the evaluator is not fluent. If a youth has difficulty communicating with their attorney simply because English is not the primary language, he or she would not be considered incompetent by legal standards. However, in such cases, evaluators could offer recommendations in order to accommodate for language issues. In general, research has not found differences between the legal abilities of nonHispanic Caucasian youth and minority youth once other relevant factors, such as IQ and socioeconomic status, are controlled (Grisso et al., 2003; Viljoen & Roesch, 2005). However, some research has indicated that juvenile defendants from ethnic minority groups may have lower levels of trust in their attorneys than Caucasian defendants (Pierce & Brodsky, 2002) and are less likely to report that they would disclose important information to their attorneys (Viljoen et al., 2005). As such, relationships with attorneys may be an especially important area to assess. At times, youth from diverse cultural backgrounds, such as youth who have recently immigrated to the United States, may have inadequate legal abilities due simply to limited experiences with North American legal systems. In such cases, evaluators should assess whether such youth have the capacity to easily learn this information.

Competency Assessment Instruments Competency assessments instruments differ from standard psychological instruments in that they are designed specifically to assess defendants’ functional legal abilities that are relevant to adjudication. Although research has indicated that clinicians consider such instruments to be useful in juvenile competency evaluations (Ryba et al., 2003), competency assessment instruments are used only in a small proportion of juvenile competency evaluations (Christy et al., 2004). In part, this may be due to the dearth of developmentally-appropriate tools for youth. Recently, however, Grisso (2005) developed a competency assessment tool specifically for youth, the Juvenile Competency Assessment Interview (JACI). In the following section, we describe the JACI, as well as several tools that were originally developed for adults, namely the Fitness Interview Test–Revised (FIT-R; Roesch, Zapf, Eaves, & Webster, 1998; Roesch, Zapf, & Eaves, 2006), the MacArthur Competence Assessment Tool for Criminal Adjudication (MacCAT-CA; Poythress, Nicholson, Otto, Edens, Bonnie, Monahan, & Hoge, 1999 ), and the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR; Everington & Luckasson, 1992). We chose to describe these instruments because the FIT-R was recently validated with adolescents (Viljoen et al., 2006) and the MacCAT-CA and CAST-MR appear to be used fairly frequently in juvenile competence evaluations (Ryba et al., 2003).3 JACI The JACI is a structured set of questions designed to assess youths’ legal capacities relevant to adjudication. At the present time, the JACI is the only existing competency assessment tool that was developed specifically for youth. As Grisso (2005)

Assessing Adolescents’ Adjudicative Competence

303

describes, the JACI is not currently a standardized instrument. It does not provide item scores or cut-offs to make determinations regarding juveniles’ competency, and it has not yet been empirically investigated. Instead, the JACI functions as a guide to ensure that clinicians consider the relevant legal capacities and developmental issues in assessing juveniles’ adjudicative competence. In the introduction to the JACI, evaluators are provided with a general set of guidelines as a frame of reference for their evaluation. In particular, definitions of “understanding,” “appreciation,” and “reasoning and decision making” are offered and clinicians are oriented to key developmental concepts that are relevant to juvenile competency evaluations (i.e., perceived autonomy, perceptions of risk, time perspective, abstract/concrete thinking). Following this introduction, evaluators are provided with a series of questions to assess youths’ adjudicative capacities. These questions are divided into four sections. The first section focuses on the “Juvenile Court Trial and Its Consequences,” including the nature and seriousness of the offense, nature and purpose of the juvenile court trial, possible pleas, and guilt and punishment/penalties. The second section focuses on the “Roles of the Participants,” including role of the prosecutor, juvenile defense lawyer, probation officer, and juvenile court judge. The third set section focuses on “Assisting Counsel and Decision Making,” including assisting the defense lawyer and plea bargains/agreements. The third section also includes an item on reasoning and decision making. For that item, youth are asked to make a choice about various legal decisions (e.g., whether to assert the right to a lawyer, or plead guilty or not guilty). They must then explain their choices. Importantly, judgments about whether a youth exhibits deficits in this area are not made on the basis of what choice they made but rather the reasons that led to their choice. The fourth section focuses on “Participating at the Juvenile Court Hearing.” This section does not include specific questions to be administered but instead provides an opportunity for examiners to record observations about the youth’s ability to pay attention, maintain self-control, and testify. With the exception of items in the fourth section and the item on reasoning and decision making, items on the JACI are designed to assess not only youths’ understanding of concepts but also their appreciation of how this information applies to their own case. In addition, the JACI contains several “Capacity Checks,” whereby evaluators can teach youth, who do not adequately understand a legal concept, about that concept and then reassess their understanding immediately after teaching, as well as several days later. The structure of the JACI is flexible. Evaluators can adjust item wording to take into account the varying ages, maturity levels, and cognitive abilities of youth (Grisso, 2005). In addition, evaluators do not need to administer every item on the JACI if some items appear unnecessary or inappropriate. For instance, if youth fail to give an acceptable response for the understanding item, it may not be necessary to administer the parallel appreciation item for that concept. Although the JACI does not include specific scoring criteria for items, evaluators are provided with guidelines regarding the key concept that the youth must demonstrate. The JACI is not validated at this time, but it holds a number of important advantages over other tools. As described, it is the only tool that was designed specifically for

304

Jodi L. Viljoen and Ronald Roesch

youth. The wording and format were carefully chosen so as to be easy to understand and developmentally appropriate. Evaluators are directed to consider key developmental constructs and issues (e.g., perceived autonomy, perceptions of risk, time perspective, abstract/concrete thinking) that otherwise might easily be overlooked. In addition, Grisso (2005) has provided a number of useful resources that may be used with the JACI, including an attorney questionnaire, a parent interview, templates for developmental and clinical interviews, and a records worksheet. FIT-R The FIT-R is a semi-structured clinical interview, which was originally developed for adult criminal defendants. Although the FIT-R was developed in Canada, it is relevant to American legal standards (Grisso, 2003) and an American manual for this instrument was recently published (Roesch et al., 2006). There are 16 items on the FIT-R which are divided into three sections. To assess each item, evaluators are provided with a number of questions. However, evaluators may rephrase questions if an examinee appears confused by the particular wording or format of a question, and may ask additional questions to further clarify and probe a defendant’s response. The first section, “Understanding the Nature or Object of the Proceedings” (“Factual Knowledge of the Criminal Procedure”)4, examines a defendant’s understanding of the arrest process, current charges, role of key participants, legal process, pleas, and court procedures. The second section, “Understanding the Possible Consequences of the Proceedings” (“Appreciation of Personal Involvement in and Importance of the Proceedings”) examines a defendant’s appreciation of the possible penalties, available legal defenses, and likely outcome. The third section, “Communication with Counsel” (“Ability to Participate in Defense”), examines a defendant’s ability to communicate facts, relate to lawyers, plan legal strategy, engage in the defense, challenge witnesses, testify relevantly, and manage courtroom behavior. Items are rated on a three-point scale, with higher scores indicating greater impairment. In rating sections, evaluators must make structured clinical judgments regarding examinee’s level of impairment on that factor. Once items and sections on the FIT-R are rated, evaluators come to a final conclusion as to whether the defendant is “fit,” “questionable,” or “unfit.” This rating is not based on a cut-off score but rather requires a separate structured clinical judgment. Research with adults has indicated that overall judgments made using the FIT-R have adequate interrater reliability (Viljoen, Roesch, & Zapf, 2002), and show high agreement with judgments made by clinicians (Zapf, Roesch, & Viljoen, 2001). Recently, Viljoen, Vincent, and Roesch (2006) investigated the interrater reliability and validity of the FIT-R with adolescents. Results indicated that the interrater reliability of sections and overall judgment of competence were good. In addition, support was found for a three-factor model, which generally paralleled the sections on the FIT-R. These factors (“Understanding and Reasoning about Legal Proceedings,” “Appreciation of Case-Specific Information,” and “Ability to Communicate with Counsel”) were united by a dominant unidimensional factor. As expected, FITR scores are inversely correlated with age, with young adolescents, particularly those with low IQ scores, showing greater impairment than older adolescents and adults (Viljoen & Roesch, 2005).

Assessing Adolescents’ Adjudicative Competence

305

The FIT-R has a number of strengths regarding its use with juveniles. At the present time, it is the only instrument that has specifically been validated for its use with adolescents. It uses simply worded questions that are directly relevant to a youth’s own legal situation, and has a flexible format. However, as with other instruments that were originally developed for adults, the FIT-R does not specifically examine how developmental immaturity may relate to a youth’s legal capacities. As such, it cannot be used as a sole indicator of juveniles’ competence and must be used in conjunction with other information. MacCAT-CA The MacCAT-CA is a structured interview that consists of 22 items. It was developed for adult criminal defendants and is based on Bonnie’s theory of legal competence, which distinguishes between competence to assist counsel and decisional competence (Bonnie, 1992). The MacCAT-CA has three sections. The first section, “Understanding,” includes eight items that examines defendants’ knowledge of legal concepts, such as the role of attorneys, the definitions of specific offenses, and the consequences of conviction. To assess defendants’ understanding of these concepts, defendants are read a brief vignette about two men who get into a fight in a bar while playing pool, and are then asked questions about how various legal concepts apply to this scenario. For six items on this subscale, defendants may be taught information relevant to this concept if they initially demonstrate inadequate understanding of that concept. They are then immediately retested to examine if their understanding improves. The second section of the MacCAT-CA, “Reasoning,” includes eight items that also pertain to the hypothetical vignette about the bar fight. For five of these items, defendants are given two facts and are asked which of these facts would be more important to tell their attorney. For the remaining three items, defendants are given choices between possible plea options. Defendants are evaluated on their ability to adequately reason about these choices. The third section, “Appreciation,” includes six items about the defendant’s own legal situation. Specifically, defendants are asked whether they are “more likely, less likely, or just as likely” as other people to be treated fairly in legal proceedings, be assisted by their attorneys, disclose information to their attorneys, plead guilty, be found guilty, and receive the same sentences as other defendants. Defendants’ responses are scored according to whether their response appears plausible or appears influenced by symptoms of mental illness (e.g., delusions). Items are scored on a three-point scale, with higher scores indicating better performance. Item scores for each section are then totaled, and norms may be used to classify whether a defendant shows “minimal or no impairment,” “mild impairment,” or “clinically significant impairment” on a section. No overall competence score is calculated. Research with adults has indicated that the MacCAT-CA has good interrater reliability, is correlated with clinical ratings of competence, and is able to discriminate between adults found incompetent and those presumed to be competent (Otto et al., 1998). In addition, as a competence assessment tool, the MacCAT-CA has a number of unique strengths, including its strong theoretical grounding, structured scoring procedures, and inclusion of a teaching component.

306

Jodi L. Viljoen and Ronald Roesch

At the present time, there is limited information regarding its psychometric properties in youth. Several studies have suggested that the interrater reliability of the Appreciation subscale may be fairly low when used with adolescents (Burnett, Noblin, & Prosser, 2004; Grisso et al., 2003). Because the Appreciation subscale was designed specifically to examine the impact of mental illness on defendants’ appreciation of case-specific information, it may be less appropriate for adolescents, as legal deficits in adolescents may stem from immaturity rather than mental illness (Grisso et al., 2003; Woolard & Harvell, 2005). In addition, some of the items on the MacCAT-CA, such as understanding the role of juries, may be less relevant to adolescents (Woolard & Harvell, 2005). (This can also be said of other instruments that were originally developed for adults.) As more information accumulates, evaluators will be able to make better informed decisions regarding the use of the MacCAT-CA with adolescents. At the present time, it should not be used a sole evaluation method (Grisso, 2005). Instead, if used, it should be as an adjunct measure. CAST-MR The CAST-MR was developed specifically for assessing the competency of adult defendants with mental retardation. It consists of 50 items, which are organized into three sections. Section I (“Basic Legal Concepts”) includes 25 multiple choice questions that assess defendants’ knowledge of legal concepts and processes, such as pleas and the role of judges and attorneys. Section 2 (“Skills to Assist the Defense”) includes 15 multiple choice questions that assess defendants’ understanding of appropriate courtroom behavior and the attorney-client relationship, such as whether they would disclose important information to their attorney. Section III (“Understanding Case Events”) includes 10 open-ended questions that assess defendants’ understanding of information pertaining to their specific case, including their ability to coherently describe the incident that led to their arrest and charges. In order to familiarize defendants with the response format, examinees are administered several practice items prior to beginning each new section. Questions are read aloud to defendants, and may be reread if the defendant does not appear to adequately understand. All of the multiple choice questions include three options that are read to defendants, and defendants are instructed to listen to each of the three options prior to selecting an answer. Correct responses to questions in sections I and II are scored one point; the scoring system is objective and does not require any evaluator judgment. Items on Section III are scored on a three-point scale, which includes scores of 0, .5 or 1. Although scoring for Section III does require some evaluator judgment, detailed scoring instructions are provided in the test manual. A total score on the instrument is calculated by adding up each of the section scores. Thus far, no research has examined the psychometric properties of the CAST-MR with youth. Studies with adult samples have reported that the interrater agreement for items on Section III is at least .80 (Section I and II do not require evaluator judgment), and internal consistency for all three sections generally appears adequate (Everington, 1990; Everington & Dunn, 1995). As evidence of validity, CAST-MR scores have been found to be significantly correlated with IQ, and have differentiated mentally retarded adult defendants who were found competent and incompetent.

Assessing Adolescents’ Adjudicative Competence

307

The CAST-MR is perhaps the instrument used most commonly in juvenile competency evaluations (Ryba et al., 2003). The multiple choice format may place fewer demands on youths’ expressive language abilities, and may help avoid acquiescent responding (Grisso, 2005). On the other hand, in order to competently stand trial, defendants may be required to employ expressive language abilities. Therefore, it may be important to understand how defendants might respond to open-ended questions that are similar to those they may be asked in actual legal proceedings (Grisso, 2003). In addition, if the CAST-MR is in fact easier than other competency assessment instruments, then the use of the CAST-MR may inadvertently and unfairly result in lower expectations and standards regarding juveniles’ competency (McKee, 1998). In order to further illustrate the use of these competency assessment instruments, a case example is provided in the following section. This example aims to demonstrate the importance of using empirically-based assessment methods, obtaining information from multiple sources (including parents), and considering developmental and contextual factors that may affect youths’ legal capacities (e.g., compliance with adults). Case Example Daniel is a 13-year-old male of mixed race (African-American/Caucasian) who was referred for a competence evaluation by his defense attorney.5 He was awaiting adjudication in juvenile court on charges of Rape in the Third Degree and Incest in the First Degree. The victim of the alleged charges was Daniel’s 11-year-old brother, Mark. Daniel’s defense attorney reported that he raised the issue of competence because Daniel “doesn’t say much and it’s hard to tell if he gets what I’m telling him.” Comprehension of Miranda rights was also evaluated in this case (see chapter 11). The consulting psychologist interviewed Daniel, his attorney, his parents, and his teacher, and reviewed his school, juvenile court, and mental health records. In addition, psychological tests were administered to assess Daniel’s cognitive functioning, mental health, and legal capacities. According to records, Daniel had no prior court contacts. He was living with his mother, father, and brother at the time of his arrest. His family has a history of economic difficulties, and was homeless in the past. Daniel was sexually abused by a female babysitter when he was 6 years old, and has witnessed domestic violence between his parents. In grade 2, Daniel began receiving special education services. Currently, he is in grade 8 in a special education program. Daniel’s teacher noted that Daniel is frequently disruptive in the classroom and described him as “socially immature.” Daniel’s parents indicated that they want Daniel to plead guilty so that he can “take responsibility for what he has done.” They believe that the judge will let Daniel “come home” if he is found guilty. However, Daniel’s attorney reported that this is extremely unlikely, and Daniel will probably face at least six months in a juvenile detention facility. On the Woodcock-Johnson III Cognitive Assessment Battery, Daniel achieved a General Intellectual Ability score in the Very Low range (65). During the interview with Daniel’s parents, they reported that Daniel is unable to independently make decisions, and needs assistance with simple tasks, such as picking out his clothing. Daniel did not report any significant symptoms of psychological symptoms, such as depression and anxiety, on the Massachusetts Youth Screening Instrument–Version 2. However, based on records and interviews with Daniel and his parents, he exhibits symptoms consistent with a diagnosis of Attention Deficit/Hyperactivity Disorder.

308

Jodi L. Viljoen and Ronald Roesch

Daniel’s legal capacities relevant to adjudication were assessed with the Fitness Interview Test-Revised and the Competence Assessment for Standing Trial for Defendants with Mental Retardation. On the Fitness Interview Test–Revised, Daniel generally demonstrated basic understanding of the adjudicative process and court procedure, and the role of key players, such as the judge and the defense attorney. Also, Daniel’s appreciation of the seriousness of his charges and likely penalties appeared fairly realistic, and he reported a high degree of trust and confidence in his attorney. However, based on his FIT-R performance, Daniel may have difficulty communicating relevant facts about his case to his lawyer; his accounts of case-related events were confusing and difficult to follow. Also, Daniel appears to have difficulty reasoning about legal decisions. His responses demonstrated a high degree of compliance with potential suggestions of a lawyer. For instance, when asked what he would do if “the prosecutor makes some legal errors and your lawyer wants to appeal,” Daniel reported that he would go with what his lawyer says because his lawyer is “a cool guy.” The FIT-R assessment also suggested potential deficits in Daniel’s ability to recognize and report inaccuracies in witness testimony, testify relevantly, and manage his courtroom behavior. On the CAST-MR, Daniel showed adequate understanding of basic legal concepts subscale and case events. However, consistent with his performance on the FIT-R, he demonstrated deficits on a scale that measures skills to assist his defense attorney. Specifically, he obtained a significantly lower score than the average score obtained by mentally retarded adult defendants who are found incompetent to stand trial. In the consulting psychologist’s opinion, Daniel has a limited ability to communicate with his attorney and reason about legal decisions, such as plea bargains, due to his cognitive deficits and his acquiescence to adults, including his attorney and parents. If there is a formal trial, it is questionable as to whether Daniel can adequately testify and manage his courtroom behavior given his attention deficits and impulsivity. If Daniel is found incompetent to stand trial, medication may be useful in helping to mitigate his attention deficits and impulsivity. However, it is unlikely that he can be taught to communicate more effectively, reason about the consequences of various legal decisions, and function more autonomously within the time limit permitted for remediation.

Summary A large body of research has examined adjudicative competency in adults, and a number of instruments have been developed for adults. However, in assessing adolescents, a number of unique developmental considerations arise. As such, adult approaches cannot automatically be applied to youth. Because legal deficits in youth may stem from immaturity, evaluators must routinely consider immaturity when conducting juvenile competency evaluations. Also, evaluators must consider contextual issues that are unique to adolescents, including the impact of caretaker involvement in legal proceedings and the possibility of trial in juvenile or adult criminal court. In evaluating adolescents’ competence, it is important to include parents in the evaluation process, as parents may be able to provide useful information regarding youths’ developmental and clinical history, current presentation, and legal capacities. In addition, it is essential that evaluators use instruments that are developmentally appropriate. Because youth evaluated for competency vary widely in age, from

Assessing Adolescents’ Adjudicative Competence

309

8 to 17, it is likely that evaluators will need to adopt different approaches for youth of different ages. The JACI is the only tool that was developed specifically for assessing adjudicative competency in youth. At the present time, the JACI is a guide rather than a standardized, validated instrument. Although a number of adult instruments, such as the FIT-R, MacCAT-CA, and CAST-MR, may have utility in juvenile competency evaluations, they should not be relied upon as the sole source of information about a youth’s legal capacities but rather as an adjunct source of information. An important area for future research will be the development of standardized tests for assessing juveniles’ competence. The lack of research on assessing juveniles’ competence makes it a challenging area of practice for clinicians. However, there have been a number of important new developments in this area, including the publication of the JACI, Grisso’s (2005) new book on assessing youths’ adjudicative competence, and a growing body of research on assessing youths’ legal capacities. Clinicians are advised to frequently consult the literature as the relevant research and resources continue to grow. Endnotes 1. The terms competence and competency are used interchangeably in this chapter. 2. As argued by Scott et al. (1995) and Steinberg and Cauffman (1996), reasoning and decision-making may be especially relevant to juvenile competency because adolescents may make different and potentially riskier legal decisions as a result of psychosocial immaturity. 3. Due to space constraints, we were unable to discuss all of the competency assessment instruments that were developed for adults (see Grisso, 2003 and Zapf & Viljoen, 2003 for information on adult competency assessment instruments). 4. The FIT sections each have two titles, which correspond with the relevant Canadian and American legal standards. 5. In order to protect client confidentiality, all identifying information regarding this case was removed and critical case details were extensively altered.

References American Psychological Association (2000). Diagnostic and statistical manual of mental disorders (4th ed., text revision). Washington, DC: American Psychological Association. Baerger, D. R., Griffin, E. F., Lyons, J. S., & Simmons, R. (2003). Competency to stand trial in preadjudicated and petitioned juvenile defendants. Journal of the American Academy of Psychiatry and the Law, 31, 314–320. Barnum, R., & Grisso, T. (1994). Competence to stand trial in juvenile court in Massachusetts: Issues of therapeutic jurisprudence. New England Journal on Criminal and Civil Confinement, 20, 321–344. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. Bonnie, R. J., & Grisso, T. (2000). Adjudicative competence and youthful offenders. In T. Grisso and R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 73–103). Chicago, IL: University of Chicago Press.

310

Jodi L. Viljoen and Ronald Roesch

Burnett, D. M. R., Noblin, C. D., & Prosser, V. (2004). Adjudicative competency in a juvenile population. Criminal Justice and Behavior, 31, 438–462. Christy, A., Douglas, K., Otto, R., & Petrila, J. (2004). Juveniles evaluated incompetent to proceed: Characteristics and quality of mental health professionals’ evaluations. Professional Psychology: Research and Practice, 35, 380–388. Cooper, D. K. (1997). Juveniles’ understanding of trial-related information: Are they competent defendants? Behavioral Sciences and the Law, 15, 167–180. Cowden, V. L., & McKee, G. R. (1995). Competency to stand trial in juvenile delinquency proceedings—cognitive maturity and the attorney-client relationship. University of Louisville Journal of Family Law, 33, 629–660. Criminal Code of Canada (1985), R. S. C., C-46. Drope v. Missouri, 420 US 162 (1975). Dusky v. the United States, 362 U.S. 402 (1960). Everington, C. T. (1990). The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR): A validation study. Criminal Justice and Behavior, 17, 147–168. Everington, C. T., & Dunn, C. (1995). A second validation of the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). Criminal Justice and Behavior, 22, 44–59. Everington, C. & Luckasson, R, (1992). The competence assessment for standing trial for defendants with mental retardation (CAST-MR). Worthington, OH: IDS. Faust, D., Hart, K. J., Guilmette, T. J., & Arkes, H. R. (1988). Neuropsychologists’ capacity to detect adolescent malingerers. Professional Psychology: Research and Practice, 19, 508–515. Gilles, C., & Jackson, M. (2003). Bill C-7: The new Youth Criminal Justice Act: A darker Young Offenders Act? International Journal of Comparative and Applied Criminal Justice, 1, 19–38. Godinez v. Moran, 113 S.Ct. 2680 (1993). Grisso, T. (1997). The competence of adolescents as trial defendants. Psychology, Public Policy, and Law, 3, 3–32. Grisso, T. (1998). Forensic evaluations of juveniles. Sarasota, FL: Professional Resource Exchange. Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: KluwerAcademic/Plenum Press. Grisso, T. (2005). Evaluating juveniles’ adjudicative competence: A guide for clinical practice. Sarasota, FL: Professional Resource Press. Grisso, T., Miller, M. O., & Sales, B. (1987). Competency to stand trial in juvenile court. International Journal of Law and Psychiatry, 10, 1–20. Grisso, T., & Pomicter, C. (1978). Interrogation of juveniles: An empirical study of procedures, safeguards, and rights waiver. Law and Human Behavior, 1, 321–342. Grisso, T., & Quinlan, J. (2005). Juvenile Court Clinical Services: A National Description. Worcester, MA: Law and Psychiatry Program, University of Massachusetts Medical School. Grisso, T., Steinberg, L., Woolard, J., Cauffman, E., Scott, E., Graham, S., Lexcen, F., Reppucci, N. D., & Schwartz, R. (2003). Juveniles’ competence to stand trial: A comparison of adolescents’ and adults’ capacities as trial defendants. Law and Human Behavior, 27, 333–363. Heilbrun, K. (2001). Principles of forensic mental health assessment. Kluwer Academic: New York. Heilbrun, K., Marczyk, G. R., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York: Oxford. In re Causey, 363 So. 2d 472 (La. 1978). In re Gault, 387 U.S. 1 (1967). In re Hyrum H., 131 P. 3d 1058 (Ariz. Ct. App. 2006).

Assessing Adolescents’ Adjudicative Competence

311

In re Winship, 397 U.S. 358 (1970). Jackson v. Indiana, 406 US 715 (1972). Kent v. United States, 383 U.S. 541 (1966). McCann, J. T. (1998). Malingering and deception in adolescents: Assessing credibility in clinical and forensic settings. Washington, DC: American Psychology Association. McGaha, A., Otto, R. K., McClaren, M. D., & Petrila, J. (2001). Juveniles adjudicated incompetent to proceed: A descriptive study of Florida’s competence restoration program. Journal of the American Academy of Psychiatry and the Law, 29, 427–437. McKee, G. R. (1998). Competency to stand trial in preadjudicatory juveniles and adults. Journal of the American Academy of Psychiatry and the Law, 26, 89–99. McKee, G. R., & Shea, S. J. (1999). Competency to stand trial in family court: Characteristics of competent and incompetent juveniles. Journal of the American Academy of Psychiatry and the Law, 27, 65–73. Otto, R. K., Poythress, N. G., Nicholson, R. A., Edens, J. F., Monahan, J., Bonnie, R. J., Hoge, S. K., & Eisenberg, M. (1998). Psychometric properties of the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA). Psychological Assessment, 10, 435–443. Peterson-Badali, M., & Abramovitch, R. (1992). Children’s knowledge of the legal system: Are they competent to instruct legal counsel? Canadian Journal of Criminology, 34, 139–160. Pierce, C. S., & Brodsky, S. L. (2002). Trust and understanding in the attorney-juvenile relationship. Behavioral Sciences and the Law, 20, 89–107. Poythress, N., Nicholson, R., Otto, R. K., Edens, J. F., Bonnie, R. J., Monahan, J., & Hoge, S. K. (1999). The MacArthur competence assessment tool—criminal adjudication: Professional manual. Odessa, FL: Psychological Assessment Resources. Redding, R., & Frost, L. (2001). Adjudicative competence in the modern juvenile court. Virginia Journal of Social Policy and the Law, 9, 353–410. Redding, R. E., Goldstein, N. E. S., & Heilbrun, K. (2005). Juvenile delinquency: Past and present. In K. Heilbrun, N. E. S. Goldstein, & R. Redding, (Eds.), Juvenile delinquency: Prevention, assessment, and intervention (pp. 3–18). New York: Oxford University Press. Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Urbana: University of Illinois Press. Roesch, R., Ogloff, J. R. P., & Golding, S. L. (1993). Competency to stand trial: Legal and clinical issues. Applied and Preventive Psychology, 2, 43–51. Roesch, R., Zapf, P. A., Eaves, D., & Webster, C. D. (1998). Fitness Interview Test (rev. ed.). Burnaby, BC: Mental Health, Law and Policy Institute, Simon Fraser University. Roesch, R., Zapf, P. A., & Eaves, D. (2006). Fitness Interview Test—Revised: A structured interview for assessing competency to stand trial. Sarasota, FL: Professional Resource Press. Rogers, R. (1997). Clinical assessment of malingering and deception (2nd ed.). New York: Guilford. Rogers, E., & Ewing, C. P. (1989). The prohibition of ultimate opinions: A misguided enterprise. Journal of Forensic Psychology Practice, 3, 65–75. Rogers, R., Hinds, J. D., Sewell, K. W. (1996). Feigning psychopathology among adolescent offenders: Validation of the SIRS, MMPI-A, and SIMS. Journal of Personality Assessment, 67, 244–257. Rogers, R., Sewell, K. W., Grandjean, N. R., & Vitacco, M. (2002). The detection of feigned mental disorders on specific competency measures. Psychological Assessment, 14, 177–183. Rosado, R. (2000). Understanding adolescents: A juvenile court training curriculum. Washington, DC: American Bar Association Juvenile Justice Center.

312

Jodi L. Viljoen and Ronald Roesch

Ryba, N. L., Cooper, V. G., & Zapf, P. A. (2003). Juvenile competence to stand trial evaluations: A Survey of current practices and test usage among psychologists. Professional Psychology: Research and Practice, 34, 499–507. Savitsky, J. C., & Karras, D. (1984). Competency to stand trial among adolescents. Adolescence, 19, 349–358. Scott, E., & Grisso, T. (2005). Developmental incompetence, due process, and juvenile justice policy. North Carolina Law Review, 83, 101–147. Scott, E. S., Reppucci, N. D., & Woolard, J. L. (1995). Evaluating adolescent decision-making in legal contexts. Law and Human Behavior, 19, 221–244. Steinberg, L., & Cauffman, E. (1996). Maturity of judgment in adolescence: Psychosocial factors in adolescent decision making. Law and Human Behavior, 20, 249–272. Sue, D. W., & Sue, D. (1999). Counseling the culturally different: Theory and practice (3rd ed.). Hoboken, NJ: John Wiley. Snyder, H. N., Sickmund, M., & Poe-Yamagata, E. (1996). Juvenile Offenders and Victims: 1996 Update on Violence. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Tillbrook, C., Mumley, D., & Grisso, T. (2003). Avoiding expert opinions on the ultimate legal question: The case for integrity. Journal of Forensic Psychology Practice, 3, 77–87. Viljoen, J. L., Odgers, C., Grisso, T., & Tillbrook, C. (in press). Teaching adolescents and adults about legal proceedings: A comparison of pre- and post-teaching scores on the MacCAT-CA. Law and Human Behavior. Viljoen, J. L., & Roesch, R. (2005). Competence to waive interrogation rights and adjudicative competence in adolescent defendants: Cognitive development, attorney contact, and psychological symptoms. Law and Human Behavior, 29, 723–742. Viljoen, J. L., Klaver, J., & Roesch, R. (2005). Legal decisions made by preadolescent and adolescent defendants: Predictors of confessions, pleas, appeals, and communication with attorneys. Law and Human Behavior, 29, 253–277. Viljoen, J. L., Roesch, R., & Zapf, P. A. (2002). Interrater reliability of the Fitness Interview Test across four professional groups. Canadian Journal of Psychiatry, 47, 945–952. Viljoen, J. L., Vincent, G. M., & Roesch, R. (2006). Assessing child and adolescent defendants’ adjudicative competency: Interrater reliability and factor structure of the Fitness Interview Test. Criminal Justice and Behavior, 33, 467–487 Woolard, J. (2005, March). Parental involvement and juvenile participation: Comparing parents’ and youths’ decision-making about the juvenile justice process. Paper presented at the Annual Meeting of the American Psychology-Law Society, La Jolla, California. Woolard, J. L., & Harvell, S. (2005). MacArthur competence assessment tool—criminal adjudication. In T. Grisso, G. Vincent, and D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 283–294). Guildford Press. Youth Criminal Justice Act, S.C. 2002, c. 1. Zapf, P. A., & Roesch, R. (2001). A comparison of the MacCAT-CA and the FIT for making determinations of competency to stand trial. International Journal of Law and Psychiatry, 24, 81–92. Zapf, P. A., Roesch, R., & Viljoen, J. L. (2001). The utility of the Fitness Interview Test for assessing fitness to stand trial. Canadian Journal of Psychiatry, 46, 426–432. Zapf, P. A., & Viljoen, J. L. (2003). Issues and considerations regarding the use of assessment instruments in the evaluation of competency to stand trial. Behavioral Sciences and the Law, 21, 351–367.

13 Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court Randall T. Salekin and Ross D. Grimes

The past decade noticed marked advances in theoretical and scientific work on the topic of juvenile transfer to adult criminal courts. Melton, Petrila, Poythress, and Slobogin (1987/1997) generated one of the first chapters to discuss juvenile transfer evaluations and provided specific information on how psychologists might address the amenability to treatment question. Ewing (1990) wrote one of the first journal articles on juvenile transfer evaluations and discussed specific ways in which psychologists could address the questions of dangerousness, sophistication–maturity, and amenability— constructs widely accepted to be relevant in the transfer decision. Ewing noted that psychologists, because of their clinical training might be in a particularly good position to address questions of maturity. Later, Kruh and Brodsky (1997) wrote a scholarly article on transfer to adult courts and outlined ways in which youth might be assessed on the constructs of dangerousness, maturity, and amenability to treatment. At the time, they argued that clinicians might be in a better position to address questions of maturity, but also provided suggestions for ways in which amenability and dangerousness could be assessed. Their paper also pointed to future research that was needed if transfer evaluations were to be conducted in a sound manner. That same year, Witt and Dyer (1997) provided information for how clinicians might conduct scientifically grounded waiver of jurisdiction evaluations. Grisso (1998, 2000) also provided information on how to conduct forensic evaluation of youth facing transfer and provided a specific structure for the evaluation. His work suggested that clinicians should focus on family, peers, community, academic and vocational skills, and personality functioning. Salekin (e.g., Salekin, Yff, Neumann, Leistico, & Zalot, 2002) provided empirical data on the core criteria that underpin the Kent constructs of dangerousness, sophistication–maturity, and amenability to treatment and also highlighted in a series of articles (2002ab; Salekin, Rogers, & Ustad, 2001) ways in which transfer cases might be addressed. Finally, Witt (2003) provided an illustrative case example of a transfer evaluation highlighting how the evaluation could be conducted and interpreted. Prior to the aforementioned set of papers, transfer evaluations were generally uncharted waters. Few studies examined the nature and quality of waiver evaluations as performed in everyday practice (Brannen, Salekin, Zapf, Salekin, Kubak, & DeCoster, 2006) and, until recently (Grisso, 1998; Salekin, 2004), no professional 313

314

Randall T. Salekin and Ross D. Grimes

literature offered any coherent or systematic model for performing such evaluations. Grisso (2000) noted that guidelines for conducting transfer evaluations were so lacking that searches of the indexes of leading textbooks on child and adolescent psychiatry or psychology turned up little in the way of scholarly chapters on the topic. Although more specialized forensic textbooks would ordinarily be a good starting point for learning about such evaluations, Grisso noted that information on transfer evaluations is generally nonexistent even in forensic psychiatry or psychology textbooks (Grisso, 2000; Kalogerakis, 1992; Melton et al., 1997; Schetky & Benedek, 2002). The most recent major handbook of forensic psychology (Weiner & Hess, 2006) offers no description of waiver evaluations and minimal guidance on juvenile evaluations in general (Grisso, 2000). The lack of research and information on best practice in this area is surprising, given that clinicians have been performing evaluations for waiver of jurisdiction since the inception of the juvenile courts in 1899 (Melton et al., 1997). Comparatively, numerous journal articles and books have been produced to describe, evaluate, and critique other types of forensic evaluations of adult defendants. Articles and chapters have focused on competence to stand trial, criminal responsibility, and risk of violence, as well as child custody evaluations and the assessment of abuse and neglect of children, but little has been discussed in terms of transfer evaluations (see, generally, Melton et al., 1997). This means that clinicians conducting transfer evaluations have a smaller literature base to work from. There is also a lack of known groups of experts on transfer evaluations. In addition, there is little knowledge about the training of the mental health professionals who perform these evaluations (Grisso, 1998, 2000). Given what we know about traditional models for training in psychology, it is possible that clinicians currently conducting these evaluations have the necessary education in some areas of relevance (e.g., forensic psychology primarily with adult samples) but perhaps not in other areas of relevance (e.g., child clinical and developmental psychology). In sum, clinicians conducting waiver evaluations may be only partially prepared for the task, have a smaller literature base from which to work, and have no formal set of experts to whom they can easily turn to obtain guidance. Moreover, the constructs forensic clinicians are evaluating are often ill-defined or not well understood (see Salekin, Yff, Neumann, et al. 2002). Seen in this light, and given the large volume of waiver evaluations in most courts and the importance of psychological information to these decisions, the dearth of information in the literature about any aspect of evaluation in waiver-of-jurisdiction cases is concerning and signals the need for further research and theory on transfer evaluations. Fortunately, research is starting to emerge on this topic. The purpose of the current chapter is to offer clinicians a starting point for conducting evaluations of youth who are facing transfer to adult criminal courts. In order to help with this process the current chapter first discusses the rationale for removing some youth from the juvenile justice system. Next, we discuss the mechanisms for transfer of juveniles to adult court. This section provides an overview of the various ways in which youth can be transferred to adult court (or sent back to juvenile courts from adult court). Then, the chapter looks at the three main standards used to guide judicial decision making in transfer cases and how those standards vary

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

315

across jurisdictions. Under the broader umbrella of “standards” are the more specific criteria for transfer, and we provide a brief overview of these criteria, which generally are derived from the factors delineated in Kent v. US (1966). We suggest that the Kent criteria are key to the psychological evaluation and can be reduced to three primary psycholegal factors: (a) risk for dangerousness, (b) sophistication–maturity, and (c) treatment amenability. Next, in order to provide information on how such evaluations can be grounded in theory and science, we discuss the most recent literature on risk for dangerousness, sophistication–maturity, and amenability to treatment. In addition to these purposes, the current chapter offers a coherent system for the evaluation of youth and suggests psychological measures that might be used to help with the evaluation. As well, the current chapter provides a model for how mental health professionals can assess youth and present this information to the courts. The perspective of proper transfer evaluations put forth in this chapter is based on the emerging research and theory on the topic; however, as new research emerges, if necessary, the process should be adjusted. Much of the hope in developing scholarly research chapters on these topics is to stimulate further empirical inquiry to refine the evaluation process and to suggest perhaps different ways in which to process youth (i.e., specific policy change). The last section of the chapter offers concluding observations about the role and value of forensic evaluations of youth facing transfer including the potential for clinical evaluations to influence the law’s definition and application of waiver laws to maximize the healthy development and well-being of youth. Finally, we provide a brief illustrative case example based on our model.

Historical Purposes for Waiver of Jurisdiction Historically, the rationale and juvenile court’s interest in upward waiver has been fourfold. First, the juvenile justice system was initiated, in part, to reform and rehabilitate delinquent youths. One historical purpose of waiver was to avoid the inclusion of youths whose “ingrained criminality” and potential dangerousness might detract from the rehabilitative efforts of programs that were intended to benefit children and adolescents in juvenile facilities. Therefore, the waiver mechanism has been used to remove certain youth from a system intended to treat youth displaying conduct problems, perhaps for developmental reasons, but who were also viewed as amenable to the juvenile justice system’s intervention. Second, and relatedly, the juvenile justice system is responsible for protecting the public. In most states, the juvenile justice system is required to release youth in their custody when they reach a certain age (typically 17 or 18 years). However, if it is believed that a juvenile is unlikely to be rehabilitated prior to that time, the legal system allows juvenile court judges to waive jurisdiction. This alleviates any potential threat the youth might pose to public safety at the time of mandatory release or in terms of escape from juvenile facilities which are sometimes viewed as less secure than adult facilities. Third, and also related to the two points above, in cases in which there is a very slim likelihood for rehabilitation, it has been argued that the state has an interest in avoiding the use of rehabilitation resources that are in short supply. As Grisso notes

316

Randall T. Salekin and Ross D. Grimes

(2000), although the state has an obligation to initiate and develop services for youths whose needs exceed the juvenile system’s current capacities, waiver has been accepted historically as a legal mechanism for avoiding the use of existing resources when even the availability of the typically effective treatments would be unlikely to result in rehabilitation (see also Mulvey, 1984). Fourth, until waiver and transfer laws were enacted, it was legally presumed that all juveniles below a certain age (typically 18 years) were not sufficiently mature to be held criminally responsible for their antisocial acts (Ewing, 1990). Youths below this age were automatically treated as juveniles under the parens patriae philosophy. This guiding principle remains as a presumption but one that is debatable based, at least in part, on the juvenile’s level of maturity. Thus, juveniles may be transferred if they are viewed as mature participants. Although it is unlikely that a juvenile court judge would ever take this factor into consideration in isolation, it is possible that a judge may consider the concept in conjunction with risk for future offending and amenability to treatment (see Brannen et al., 2006). The next section of this chapter discusses the various mechanisms for transfer. Mechanisms for Transfer: Routes To and From Juvenile Courts Juvenile courts, since their inception, have always had an option of waiving their jurisdiction over some youths, allowing their charges to be filed in criminal court. There are different mechanisms by which the justice system achieves transfer. Transfer mechanisms can be grouped into three categories: judicial (upward) waiver, statutory exclusion, and direct file. Transfer mechanisms are determined by state law, and states may use any combination of mechanisms in order to achieve desired policy outcomes. Judicial waiver is the most common method for transferring cases to adult criminal court. Currently, 45 states allow transfer for certain types of cases on the basis of juvenile court judges’ decisions about the appropriateness of trying an adolescent in adult criminal court. Under this method, juvenile court judges make a determination about whether the juvenile should be tried in juvenile or adult court. Juvenile court judges may consider a range of factors in making this decision, including psychological evaluations that address the psychological make-up of the youth as they pertain to Kent criteria. National trends in juvenile law in the mid 1980s and early 1990s introduced two other mechanisms by which youths may be transferred to criminal court for trial: (a) statutory exclusion and (b) prosecutorial direct file. At present, 25 states provide a statutory exclusion. In these states, age and crime type (serious offenses such as murder and assault) are by design outside the jurisdiction of the juvenile court. As such, the charge is filed directly in criminal court without any formal evaluation of the youth’s characteristics or input from juvenile court judges. Under this system, the age of the offender and the type of offense may automatically move the case to adult court. For example, a state may legislate that any offender aged 14 and up accused of homicide will be tried in adult court. States may codify any combination of ages and offense categories to be transferred, taking the discretion of the juvenile court judges out of the decision making process (Penney & Moretti, 2005; Snyder & Sickmund, 2006).

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

317

The second transfer mechanism adopted in 15 states in the late 1980s and early 1990s is called prosecutorial direct file (Snyder & Sickmund, 2006). This mechanism allows prosecutors to file charges against youths in either juvenile or criminal court for certain types of offenses. With this mechanism, prosecutors have the discretion to file the case in juvenile or adult court. Similar to statutory exclusion, there is no psychological evaluation of the youth or hearing at the juvenile level prior to the prosecutor’s filing of the case directly in adult criminal court. With all the above mentioned transfer mechanisms, the age at which a juvenile may be transferred varies between states and between transfer mechanisms. The majority of states allow transfer for youths aged 14 and over, however a number of states also allow transfer of youths between 10–13 years of age depending on the type of offense or method of transfer. Additionally, at least three states do not specify any minimum age for transfer to adult court (Heilbrun et. al., 1997). Recent estimates of the percentage of juveniles transferred to adult court under each type of transfer indicate that although newer routes have been introduced, judicial transfer from juvenile courts remain a relatively common mechanism for transfer (Griffin, Torbet, & Szymanski, 1998; Puzzanchera, 2003; Snyder & Sickmund, 2006) and waiver rates differ based on the types of crimes committed and what is occurring in various communities with respect to the level of juvenile violence. Figure 13.1 shows the high rate of violence in the mid-1980s and early 1990s that resulted in a high rate of transfer to adult courts. Interestingly, the use of transfer mechanisms also declined as the rate of youth violence declined (Snyder & Sickmund, 2006). Protective mechanisms are now in place if decision errors do occur in the transfer process. That is, even in situations in which automatic transfer or prosecutorial direct file occur, psychological evaluations of youths are sometimes requested by criminal court judges to determine whether the youth should remain in adult court or be 

 
 4.5% 4.0%   




3.5% 3.0% Person 2.5%

Property

2.0%

Drugs Public order

1.5% 1.0% 0.5%



Figure 13.1

Juvenile waivers to adult court by offense type.

2002

2001

2000

1999

1998

1997

1996

1994

1995

1993

1992

1990

1991

1989

1988

1986

1987

1985

0.0%

318

Randall T. Salekin and Ross D. Grimes

returned to juvenile court (Fagan & Zimring, 2000; Grisso, 1998). Specifically, judges have the opportunity to reverse transfer (decertify) youth. It is interesting that in some states where judicial transfer (upward waiver) is used, reverse transfer is an option (Griffin et al., 1998; Snyder & Sickmund, 2006).1 The reverse transfer process, available in 25 states, serves as a safety net for those youths who are inappropriately transferred to adult courts (e.g., they are immature or incompetent to stand trial); however, this mechanism typically requires that someone notice the developmental immaturity and/or the potential amenability of the youth and plan a pretrial hearing in criminal court, which then allows the criminal court judge to transfer jurisdiction back to juvenile court (Griffen et al., 1998; Grisso, 1998; Salekin, 2002a, 2002b; Snyder & Sickmund, 2006). There is also the potential for blended sentencing, wherein the trial occurs in one setting but sentencing occurs in a different setting or combination of settings. Such a system can result in the imposition of both juvenile and criminal sanctions for the same offense (Woolard, Odgers, Lanza-Kaduce, & Daglis, 2005). Blended sentencing and other transfer mechanisms are attempts to balance the need for protecting society against the recognition that children and adolescents may possess diminished capacity compared to adults and therefore deserve a judicial process that takes such factors into account. Given the different routes by which children and adolescents can find themselves in adult court, clinicians conducting transfer evaluations should be aware of the specific mechanisms and laws governing transfer for the state in which they are conducting their evaluations. Similar types of information may be considered in the upward transfer and decertification hearings; however, it is important for child and adolescent forensic examiners to have knowledge of the mechanisms in play and the specific “standard” applied for the state in which they are conducting the evaluation. We elaborate on this latter point in the following section.

Legal Standards For Transfer to Adult Court With each of the mechanisms for transfer, the judge typically applies a “standard” to determine whether or not the youth should be tried in adult court (Grisso, 2000). The purpose of any forensic clinical evaluation is to provide information to a decision maker that is relevant for a legal decision. This requires that the clinical forensic examiner be aware of the legal standard the legal decision maker is applying to reach his or her decision; this then allows the clinician to use the specific standard to help guide the evaluation process (Grisso, 1986, 2000; Melton et al., 1997). These standards can be found in the state statutes for transfer. Laws governing waiver require hearings to address whether evidence supports the statutory criteria for transfer. Many states have two to three levels of legal standards for waiver of jurisdiction. The first is a set of threshold conditions that are to be met before proceeding further (e.g., age, charged with a certain offense, a special history of prior offenses). If threshold measures are met, then courts in most states (Heilbrun et al., 1997) can proceed to the point of applying one of typically three standards referred to as “public safety” (or “danger to others”), “amenability to rehabilitation” and “the best interest of the child/community.”

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

319

TABLE 13.1 Legal Standards for Transfer and the Percentage of States Using Each Standard Method Public safety Interests of juvenile Balance of public safety and interests of juvenile List of criteria to consider only (Kent criteria)

Percentage of States 16% 18% 34% 18%

*Note: percentages do not equal 100 because of states that do not allow judicial waiver as well as states that do not clearly define how the decision should be made.

Many of these standards have similar meaning. Specifically, they are attempting to balance the development of the youth against the protection of society. The “danger to others” standard requires that youths cannot be waived to criminal court unless they present a serious risk of harm to others. The same standard would generally be applied in reverse waiver (requiring that the youth not present a serious risk of harm if the waiver were approved). This standard typically occurs in a brief phrase at the beginning of a statute that identifies it, such as “protection to the community,” “danger to public,” or “public safety” (Grisso, 2000; Grisso, Tomkins, & Casey, 1988). The “amenability to rehabilitation” standard allows the court to waive jurisdiction and remand the youth for criminal court trial only if the youth is found to be not amenable to rehabilitation with the resources available to the juvenile court (e.g., Kent v. U.S., 383 U.S. 541 [1966]) and/or “is not a fit and proper subject” for juvenile custody (Grisso, 2000; Grisso et al., 1988). The “Best Interest of the Child/Community” standard requires that the juvenile court judge consider issues such as dangerousness and amenability, and attempt to provide the best placement for the youth. Finally, it appears that increasingly states do not list a broad standard but rather list Kentlike criteria. All three standards and/or the listing of Kent criteria exist because of a concern for risk of harm to the public. Judgments about one standard (dangerousness) are often related to judgments about the another (amenability) (Grisso, 2000) and all appear to draw on Kent criteria. Table 13.1 lists the four different systems, and the percentage of states that use each (see Table 13.1).

Criteria Underpinning the Standards: The Kent Items Under each standard within state statutes exist a set of criteria judges consider in order to address the broader legal standard. Many of these factors listed in state statutes mimic Kent criteria. Specifically, in Kent v. U.S. (1966), the U.S. Supreme Court recommended eight factors and most states have etched some permutation of these factors into the statutes or case law. The Kent criteria can be separated into straightforward legal criteria and others that are psychological or psycho-legal in content. For example, some Kent criteria, such as whether the case has prosecutorial merit or the desirability of trial in criminal court because the case involved adult associates, are primarily factors that the judges can determine without psychological input. Other

320

Randall T. Salekin and Ross D. Grimes

elements of Kent ask about danger to others, sophistication–maturity, and amenability to treatment and are pertinent psychological constructs for which judges often request psychological information via reports and testimony.

Eight Kent Factors Distilled to Three Key Psychological Constructs Although the Kent case has been very instructive in reducing the arbitrariness of the transfer process, disparity exists regarding the number of factors that psychologists feel ought to be considered in transfer decisions. In essence, researchers and legal theorists have claimed that anywhere from one to five factors should be considered. For example, Melton et al. (1997) suggested amenability to treatment should be the primary factor considered in transfer evaluations (this was likely based on the amenability standard). Grisso, Tomkins, and Casey (1988) found dangerousness and amenability to treatment to be key, although they, too, were focusing primarily on legal standards. Ewing (1990) on the other hand, suggested three factors likely derived more directly from Kent criteria: (a) dangerousness, (b) sophistication–maturity, and (c) amenability to treatment. Kruh and Brodsky (1997) also believed that three factors were important. Heilbrun, Leheny, Thomas, and Huneycutt (1997) reviewed juvenile transfer statutes and found five pertinent factors: (a) treatment needs and amenability, (b) risk assessment for future criminality, (c) sophistication–maturity, (d) the presence of mental retardation or mental illness, and (e) offense characteristics. Given this disparity, one might ask, how do we arrive at three concepts? We provide a rationale below. Three factors probably best capture criteria pertinent to transfer determinations as well as offer a parsimonious model. In our opinion, considering amenability to treatment alone is underconclusive (and this simply focuses on one standard and one Kent criteria). Practically, juvenile court judges will want to evaluate dangerousness and sophistication–maturity when weighing the protection of society against the development of the youth. Similarly, with five factors, redundancy exists. Specifically, the criterion of mental retardation could be subsumed under the sophistication– maturity umbrella. That is, juveniles who are mentally retarded are unlikely to be sophisticated/mature. Similarly, offense characteristics (e.g., offense characteristics) could be subsumed under the broader construct of dangerousness. Therefore, factors from juvenile statutes and Kent v. United States (1966), directly relevant to the psychological functioning of juveniles can be distilled to: (a) potential dangerousness, (b) sophistication–maturity, and (c) treatment amenability (Ewing, 1990; Salekin, 2002). However, it should be noted that the criteria that underlie these superordinate constructs are broad (e.g., intelligence and mental retardation would be included under the sophistication maturity construct along with emotional stability, perspective-taking and decision-making characteristics). Although we note that the eight Kent criteria can be distilled to three psychological concepts, not every state requires that these three factors be assessed. Dangerousness is always a criterion to consider, but maturity is mentioned explicitly in only about half of the states and implicitly in another 11 states. Amenability is also almost always mentioned as a criterion to consider in transfer evaluations.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

321

Conducting Evaluations of Youth Facing Transfer Once mental health professionals know the standard being evaluated, the criteria that underlie the standard, and the psychological concepts they will evaluate, they can proceed to the next stage of the evaluation, which is to comprehensively assess the youth. On beginning the evaluation, it is important that the forensic expert allow adequate time to gather and assess the data required by this complex process. The first step should be to review all the relevant documents, including police, medical, psychiatric, social, and school reports. The areas for evaluation are extensive. A carefully constructed developmental history will be a composite of information gathered from home, school, workplace, and neighborhoods. Contacting teachers and court personnel is essential. A broad perspective in gathering the information is important because context may be at least as relevant as personality and behavior. The specific nature of the interviews should be clarified to the juvenile. It should be explained that the evaluation is not part of treatment, and the juvenile must be warned that his/her confidentiality will not be preserved. The expectation of a report to the court and possible court testimony about the juvenile should be made explicit. This must be thoughtfully conducted with sensitivity to the child/adolescent’s comprehension of the situation. Once these factors have been carefully considered, the transfer evaluation is likely to center on Kent criteria. Traditionally, these factors have been evaluated by clinical interview alone. Grisso (1998) provides a structure for the evaluations that might be used. This system entails traditional interviewing. This system could also be coupled with appropriate psychological measures to augment traditional interviewing. Recently, juvenile assessment tools have been designed for the assessment of young offenders. For example, the Structured Assessment of Violence Risk for Youth (SAVRY; Borum, Bartel, & Forth, 2005), Youth Level of Service/Case Management Inventory (YLS/CMI; Hoge, 2005), and RST-I (Salekin, 2004; see also Salekin, 2006 and Leistico, DeCoster, & Salekin, 2006) are all measures that may be used to examine youth and provide information that is relevant to the courts. The SAVRY or YLS/ CMI might be utilized for risk for violence questions. Similarly, the YLS/CMI and RST-I could be used to address questions of amenability and treatment needs. Importantly, all measures allow for the assessment of protective factors which are linked to amenability issues. Although the aforementioned measures provide structure to the evaluation process, they do not supplant the need for extensive knowledge about adolescent development and the need to keep up to date with regard to the current literatures on transfer, risk for violence in youth, maturity, and treatment amenability. That is, examiners should look to the body of knowledge about which they are experts— scientific, theoretical, and clinical knowledge—for the factors they will use to address the questions posed by the legal standards (Grisso, 2000). We believe that the literature is converging to point to certain factors as being most relevant to the risk for dangerousness, maturity, and amenability concepts. Nonetheless, researchers should be cognizant of new developments in these areas and should be able to discuss them in the context of their evaluations. In the next section, we discuss risk for

322

Randall T. Salekin and Ross D. Grimes

dangerousness, sophistication–maturity, and amenability to treatment, in turn, to provide recent theory and research on each construct.

Risk for Dangerousness: A Research Update One aspect of dangerousness evaluations involves examining the prototypes for dangerousness that juvenile court judges and clinical psychologists provide. In two prototypical analyses (Salekin, Rogers, & Ustad, 2001; Salekin, Yff, Neumann, Leistico, & Zalot, 2002), factors clinicians and juvenile court judges found to be pertinent in the assessment of dangerousness included youth who engaged in extreme unprovoked violence, had severe antisocial personalities, lacked remorse/guilt and empathy, had violent histories, and had shown a leadership role in the crime. These factors tend to align with characteristics in the social science literature that suggest a higher likelihood, and stability, of future offending (e.g., Loeber & Stouthamer-Loeber, 1998; Moffitt, 1993, 2003). Over the last decade a great deal of research has begun to suggest that psychopathy may be a moderate predictor of violence and aggression in youth (Forth & Burke, 1998; Frick & Morris, 2004; Lynam & Gudonis, 2005; Salekin, 2006). Research suggests that personality characteristics such as those found in psychopathic individuals are an important consideration in predicting both general and violent recidivism in adults (Salekin, Rogers, & Sewell, 1996), although much more research is needed to examine this relation with children and adolescents (Edens, Skeem, Cruise, & Cauffman, 2001; Leistico, Salekin, De Coster, & Rogers, in press; Salekin, 2006; Salekin, Rogers, & Machin, 2001). Some research suggests that psychopathy is predictive of some forms of dangerousness with youth (e.g., Gretton, McBride, Hare, O’Shaughnessy, & Kumka, 2001; Salekin, Ziegler, Larrea, Anthony, & Bennett, 2001), and other research has been concerned about the appropriateness of the construct to children and adolescents. There are some very good arguments to suggest that we do not actually know if this is psychopathy per se or something else. Although, increasingly, there is data to show that at least a portion of the youth carry their psychopathic symptoms through to adulthood, many of the children assessed do not (Lynam et al., 2007). With respect to risk assessment, because the descriptors used in the measures tend to be predictive, they may be indicated for use in transfer evaluations, but psychologists should clearly state that they are simply using descriptors of callousness to rate the likelihood of future dangerousness and that it is not clear that it is psychopathy. And psychologists should also be clear in stating that there is no evidence that the disorder is untreatable (see Caldwell, Skeem, Salekin, & Van Rybroek, 2006; Salekin, 2002; Salekin, Rogers, & Machin, 2001). Finally, the longitudinal studies that are emerging suggest we can only predict a few years out, although more data has been emerging on this topic (see Frick, Cornell, Barry, Bodin, & Dane, 2003; Lynam et al., 2007). Mental health professionals may consider using this information to highlight treatment needs. A final point is that the field may want to continue to delineate more clearly what psychopathy means by providing updated clinical correlates. It might be that for clinical practice “callousness,” “interpersonal callousness,” or “psychopathic features” be used, because these terms are more descriptive and do not necessarily

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

323

imply etiology, which may vary from case-to-case (see Salekin & Debus, this volume). If clinicians use proximal terms (psychopthy-like features), then they need to be very active in providing relevant court personnel with accurate information regarding treatment amenability, comorbidity, and other pertinent information in their reports and testimony. Over the last two decades, violent and antisocial pathways have been conceptualized in ways that may facilitate determinations of dangerousness (e.g., Loeber, & Stouthamer-Loeber, 1998; Moffitt, 1993). Developmental pathways may assist in the determination of future dangerousness by distinguishing among different types of offenders. In 1993, Moffitt proposed two distinct pathways to antisocial behavior: (a) “adolescent-limited” and (b) “life-course persistent” delinquents. This model is particularly important because it addresses the issue of why many adolescents engage in antisocial behaviors and then later desist and live normal lives. Moffitt (1993) suggested that “life-course persistent” offenders begin committing crimes early in childhood, continue well into adulthood, and manifest characteristics that seem categorically antisocial. In contrast, “adolescent-limited” offenders tend to commit their first offense in mid-adolescence and desist from illegal behavior as they enter adulthood. This taxonomy has been widely accepted as evidenced by its being codified in the DSM-IV (American Psychiatric Association, 1994), invoked in the National Institute of Mental Health (2000) Child and Adolescence Violence Research and the U.S. Surgeon General’s (2001) report on Youth Violence, and presented in abnormal psychology and criminology textbooks. Recently, Moffitt (2003) provided a 10-year review of her developmental taxonomy. Her scholarly chapter shows that, in general, there is support for this model. However, Moffitt also points to the need for further research on these CD subtypes across time and the need to continue to report differences across race, gender, and age groups. For example, although these models generally apply to youth, not all youth who are categorized as adolescent-limited desist from criminal behavior. Also, we now know that not all early-starters are antisocial throughout a life span. Providing the most recent data on these pathways, how youth fit into the pathways, and the percentage of youth that persist on a pathway may be helpful to the court. Previously, Kruh and Brodsky (1997) suggested that other constructs may offer clinicians important information regarding dangerousness in very circumscribed areas. For instance, the overcontrolled-hostility scale (Megargee, 1966) has been useful in identifying offenders with a history of infrequent, but extremely severe, violence (Du Toit & Duckitt, 1990). The generalizability of the overcontrolled hostility to juvenile offenders has been suggested as a possible predictor of certain types of offenses in certain types of adolescents. Specifically, Kruh and Brodsky (1997) suggested that this scale may help to identify weapon related violence with homicidal intent against other individuals during periods of disinhibition. Unfortunately, we are not in much better shape with respect to knowledge on the validity of this subtype scheme for adolescent offenders. Specifically, only a few studies (e.g., McGrory, 1991; Salekin, Ogloff, Ley, & Salekin, 2002) back this finding. Clearly, more research is needed with the over-controlled hostility construct before mental health professionals consider its use in transfer evaluations.

324

Randall T. Salekin and Ross D. Grimes

The foregoing reveals theoretical and empirical research suggesting at least three avenues psychologists may want to use to inform courts about the dangerousness of youth. First, knowledge of antisocial pathways may assist mental health professionals and the courts in predicting the likelihood of future criminal and violent behavior. Pathways may allow clinicians to classify and speak to the percentages of youth who decelerate, maintain, or escalate to serious crime and violence. This, then, may allow for accurate classification of juveniles who should remain in juvenile court. Second, measures of psychopathy-like characteristics have been shown to have predictive validity with adolescent offenders and may prove moderately useful to risk assessments with juvenile offenders. However, we suggest that the field may need to consider changing this term to be more descriptive rather than suggesting etiology. Alternately, the field might need to clearly delineate the developmental differences in child and adult psychopathy with respect to factors such as comorbidity and treatment amenability and so forth (Salekin & Frick, 2005). Third, utilization of specific characteristics such as those found in prototypical analyses may also prove effective. In general, these characteristics overlap with the factors found to be important in distinguishing developmental pathways for youth, as well as those factors from the literature on callous-unemotional traits. Combining approaches may further improve the court’s ability to make appropriate decisions with respect to dangerousness. Although psychologists are now in a better position to incorporate dangerousness evaluations into transfer cases than in the past, a word of caution is necessary. Despite some advances in the assessment technology for child and adolescent forensic populations, the current empirical basis for juvenile risk assessment is very limited. Even when the above-mentioned factors are used in making predictions about dangerousness, it is recommended that psychologists be very clear about the continuing limitations of risk assessment with adolescent populations. One important consideration here is that while theory suggests that certain youth will persist in criminality well into adulthood, empirical evidence tracking juvenile recidivism rates are limited. However, psychologists could add important comparative statistical information such as the percentage of youth who continue on a certain pathway, the percentage of youth who drop-off certain pathways, and what sorts of factors account for continuation or discontinuation along a particular pathway. These sorts of data might help frame the decision for the judge. In addition, with regard to risk assessments, we also believe that Grisso (1998) offers some important considerations for these evaluations. Specifically, Grisso (1998) suggests that clinicians make their risk estimates conditional with regard to future situational contexts. This simply means that mental health professionals should recognize that the likelihood of future violence is not merely a product of an individual’s characteristics but also depends on the situation and setting (condition) in which the individual will find himself or herself in the future (Grisso, 2000; Swanson, Borum, Swartz, & Monahan, 1996). Sophistication–Maturity: A Research Update Maturity is another area that is important to assess and one that clinicians may want to consider in the evaluation of youth facing transfer. Most states’ transfer statutes either explicitly list or implicitly incorporate maturity. Ewing (1990) suggested that

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

325

sophistication–maturity is one construct about which child forensic clinicians are especially capable of offering the courts useful information. He advised that clinicians attempt to assess both cognitive and emotional maturity. With regard to cognitive maturity, Ewing recommended that juveniles evaluated for transfer be administered an intelligence (e.g., WISC-III) and achievement test (e.g., WRAT). Ewing argued that such measures evaluate a youth’s general intellect, but also evaluate factors such as “perception, cognitive processing, attention, and judgment all of which can be reflective of a youth’s sophistication–maturity . . . [and the youth’s] level of criminal responsibility” (p. 8). Similarly, the rationale for using achievement testing is based on the notion that many juvenile delinquents have co-occurring learning disabilities that may negatively affect academic performance and contribute to their lack of ageappropriate maturity. Ewing (1990) recommended that a juvenile’s level of emotional maturity also may be examined through interviewing and psychological testing. With respect to psychological testing techniques, he recommended that self-report measures (e.g., Millon Adolescent Clinical Inventory or MACI, 1993) and projective techniques (e.g., Thematic Apperception Test or TAT and the Rorschach Inkblots) be used to provide “indications of the juvenile’s internal controls, ability to organize thoughts coherently, and reality testing” (p. 9). We would add that the forensic clinicians who work with juvenile offenders are often aware of the need to extend these assessments of traditional intellect and maturity to examine the greater issue of sophistication–maturity in the legal context. Certain abilities not tapped by traditional assessment procedures may be important for clinicians to assess in order to inform the court. Occasionally, youth may have a significant degree of practical knowledge for survival outside of academic settings but score low on traditional measures of intellect and achievement. Converging information (Salekin, Rogers, & Ustad, 2001; Salekin, Yff, Neumann, Leistico, & Zalot, 2002) suggests that the legal term and construct of sophistication– maturity may consist of a complex set of interrelated factors: autonomy or adult-like self-reliance, understanding of behavior norms, foresight, and the ability to engage in balanced judgment. With respect to criminal sophistication, items such as autonomy, and cognitive and emotional abilities may still apply but tend to be used for antisocial purposes. Thus, autonomy, in this case, appears to be one of increased levels of self-reliance and self-concept that is antisocial in nature, and the adolescent tends to embrace a criminal lifestyle. This may be evidenced by progressively more involvement (and perhaps increasingly sophisticated involvement) in crime. Factors that lead to decisions about maturity include the extent to which youth engage in planned and premeditated crimes, their ability to give thought to the consequences in a larger frame, and their decision-making skills more generally (e.g., engage in cost benefit analysis with respect to decision making). Although there are few empirical studies to suggest that youth may demonstrate intelligence (sophistication) in the absence of prosocial development, considerable theory exists on which psychologists can draw upon to better understand sophistication–maturity in their assessment of adolescents. For instance, Sternberg’s (2000) work is perhaps most pertinent here in that he has indicated that intelligence can be viewed from diverse perspectives including prosocial, asocial, and antisocial. According to Sternberg, even antisocial youth advance cognitively (e.g.,

326

Randall T. Salekin and Ross D. Grimes

gain forethought) and emotionally (e.g., improve ability to delay gratification) in the absence of prosocial development. Contextual assessment of intelligence and maturity are likely to provide the courts with a more complete picture of a youth’s level of sophistication–maturity. Finally, with regard to sophistication–maturity, mental health professionals should attempt to assess moral development. Whereas very young children promote self-interest by “taking care of number one,” older children and adolescents move through different stages that reflect more well-reasoned perspectives on morality (Kohlberg, 1981) Psychologists should assess whether there is a mismatch between the youth’s level of moral development and his or her behavior. For example, a youth may understand that physical aggression is wrong for a variety of reasons (including very high levels of moral reasoning) but may still engage in this antisocial behavior. The aforementioned research suggests that while traditional measures of intelligence and achievement are important in transfer evaluations, at least one other avenue of sophistication–maturity should be explored. Specifically, mental health professionals should pursue lines of questioning that address the extent to which youth are advanced in their criminality (criminal sophistication), show autonomy, are morally advanced, and show leadership in criminal activity. Although theoretical and scientific evidence suggests most youth would not meet criteria for sophistication–maturity (see Fried & Reppucci, 2001), assessing varying degrees of maturity among youth will likely provide the courts with a more complete picture of the youth that will assist them in weighing concerns about the protection of society against the development of the youth. Of the three constructs, sophistication–maturity is likely to pose the most problems for psychologists in terms of juvenile transfer evaluations. On the one hand, higher levels of maturity might produce better treatment results. Youth with high-level cognitive skills, moral knowledge, emotion regulation, and clearer identity (including at least some aspect of prosocial identity) are likely to benefit from psychotherapy (Garfield, 1994). For example, emotion regulation would help promote stable functioning and would facilitate youth in reaching their treatment goals. On the other hand, higher maturity might be indicative of more sophisticated criminal conduct that may, or may not, be particularly malleable or amenable to treatment. An important question is whether such youth are able to utilize their higher levels of maturity toward changing their antisocial beliefs and conduct. Although this issue is a complex one for clinicians to resolve, assessment of the amenability to treatment construct (e.g., motivation to change and protective factors) may help to elucidate whether a youth high in maturity is ready to make positive changes in their lives. Other factors such as socioeconomic status, hopefulness in the community, and psychopathology are very likely to have an impact on sophistication and maturity in the sense that they may impact the overall level of maturity, and/or the way in which youth use their developing maturity. Thus, similar to risk estimates, evaluations of maturity and maturity development are likely to have a number of mediating factors. Specifically, if youth are placed in settings where the community is committed to their development and there exists some hope for their futures, they might be more likely to develop prosocially. Of course, the legal system is unlikely to remove the concept of responsibility or culpability simply because life-circumstances are

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

Figure 13.2

327

Model of Developmental Sophistication–maturity

imperfect or even deprivational, but these factors will likely have an effect on outcome with respect to transfer and such mitigating circumstances would likely also impact treatment decisions. Fortunately, elements of maturity are dynamic and some of the features of maturity such as forethought and emotion regulation may very well increase with age and treatment. Also, it is possible that for mature youth who use their higher levels of maturity for antisocial purposes that their orientation might be changed, thereby reducing their criminal thinking patterns. Below, we provide a model for examining maturity in adolescents which considers their developmental status, the environment in which they currently live, any potential psychopathology, and the context or situation in which they make decisions (see Figure 13.2). This model suggests that developmental status, which includes maturity, has a two-way interaction with the environment (e.g., parenting, family socioeconomic status, and so forth) that also must be viewed through any pathology (or lack of pathology) that the youth has (e.g., ADHD, Depression) that may then impact their decision making. Although we have not drawn arrows for the paths from decision making back to maturity, we believe that decision-making has a cumulative effect on maturity and developmental status. Pathology is included because we know that a number of juveniles have high levels of pathology, and some of this pathology may impact decision making and maturity. In sum, this model suggest that there are a number of factors that should be considered in examining a youth’s level of maturity. Amenability to Treatment: A Research Update Researchers (Cauffman & Steinberg, 2000; Salekin, 2002; Steinberg & Cauffman, 1999, 2000; Zimring, 1998) have suggested that youth are more malleable than adults and are therefore more amenable to treatment. Although not well tested, there is some evidence to suggest that the earlier one detects a disease or disorder, the better the prognosis. This notion has been, in part, the basis for treating rather

328

Randall T. Salekin and Ross D. Grimes

than punishing errant youth who may have externalizing disorders such as Oppositional Defiant Disorder (ODD), Conduct Disorder (CD), or other antisocial behavior problems. The idea of early detection and treatment would suggest that many youth who come into contact with the law can be directed toward more prosocial lifestyles. An important step in the amenability to treatment construct is understanding juvenile characteristics that are predictive of positive and negative treatment outcomes. Several studies (e.g., Adams, 1970; Carlson, Barr, & Young, 1994; Izzo & Ross, 1990) suggest that factors such as cognition, self-evaluation, expectation, an understanding and appraisal of the world, and values, are important in the treatment of juveniles. Amenable youth have also been described as being smart, verbal, anxious, insightful, aware of their difficulties, and motivated toward change. When clinical psychologists (Salekin, Rogers, & Ustad, 2001) and juvenile court judges (Salekin, Yff, Neumann, Leistico, & Zalot, 2002) were asked to rate core characteristics for the amenability to treatment construct, important elements included motivation to engage in treatment, awareness of difficulties, expectations that treatment would be beneficial, remorse/guilt, empathy, knowledge of right from wrong, anxiety about the circumstance, and stable and supportive family environment. Many of the characteristics mentioned above have been studied in relation to treatment outcome and have been found to be positive signs for subsequent gains in psychotherapy (e.g., Carlson et al., 1994; Frank, 1959; Garfield, 1994). Three other prognostic variables that should be evaluated by child forensic clinicians who are involved in transfer evaluation cases include the degree and type of psychopathology, family/ support system considerations, and protective factors (e.g., prosocial role model or interests/hobbies). It is generally believed that because of juveniles’ young age, it is likely that they are in the early stages of a disorder and thus treatment would likely be more effective than the same treatment provided to adults whose behavior problems are considered more enduring. Nevertheless, for a small group of juveniles, treatment may be extremely difficult and prognosis may be generally poor because of the type and severity of psychological disturbance. In light of this, examining different variations of antisocial youth would be beneficial, with more extreme and aggressive personalities being potentially more difficult to treat. Strong conclusions should not be drawn, however, between severe antisocial personality and poor treatment prognosis. Important in this regard is a meta-analysis on psychopathy and treatment (Salekin, 2002) which has shown that psychopathy, particularly in children and adolescents, may be more amenable to treatment than previously thought (see also Caldwell, Skeem, Salekin, & VanRybroeck, 2006). Considerations of whether, and how ingrained, youth are in a violent criminological lifestyle, coupled with considerations for whether youth have stable psychopathiclike characteristics, may be more relevant in determining the severity of treatment resistance. Disorders other than conduct problems, such as psychotic disorders, posttraumatic stress disorder, and depression, may be severe and difficult to treat but they are often treated differently by the courts (Barnum, 1987; Grisso, 1998). Barnum (1987) contends that assessing signs of low risk for career criminality and treatable violencerelated psychopathology, such as depression and posttraumatic stress, are necessary in such evaluations and should be reported to the judge. Mental health professionals

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

329

may want to inform the court that appropriate treatment (psychopharmacological/ behavioral or other) would likely reduce offenses that were previously linked to psychotic, depressive, or PTSD symptomatology. Thus, although clinicians may want to provide information on the chronicity, severity, and associated treatment difficulties of a disorder, they may also want to provide information to the courts about how the psychopathology is associated with antisocial conduct, and outline ways in which interventions may reduce antisocial behavior. Evaluators of youth facing transfer should also look for the presence of protective factors that may cancel or attenuate the influence of known risk factors. Variables such as social competence, intelligence, positive peer relations, positive peer response to authority, and effective use of leisure time can serve as buffers in the presence of risk factors (e.g., Luthar, 1991). Family is a critical component related to how well children and adolescents respond to psychotherapy. Parents’ resistance to viewing a youth’s problems, at least in part, as a symptom of family difficulties can be a negative factor for amenability to treatment. Kazdin (1985) concluded that assessment of parents’ expectations of treatment for their adolescent children may be a useful predictor regarding amenability to treatment. He found that parents’ expectations influenced the degree to which children complied and changed with psychotherapy. Examiners might look for other attached family or community members that could facilitate treatment. Ewing (1990) has suggested that other factors to be considered include whether: (a) the dispositions available to the juvenile court are likely to rehabilitate the juvenile before that court’s jurisdiction ends, and (b) the services available to the juvenile in the criminal justice system are appropriate to the youth’s needs. Also, as Ewing points out, in some states there are provisions for state funded, out-of-state treatment of serious juvenile offenders, but only if the offender is assessed as being amenable to treatment and the agency or facility providing treatment is able to accept the youth pursuant to court order. Although it is important to have current knowledge of the range of services available to juveniles in both the juvenile justice system and the criminal justice system in the jurisdiction in which one is operating, Kruh and Brodsky (1997) contend that child forensic psychologists should be less concerned with this issue than the issue of whether or not amenability is possible at all. According to these authors, a finding of amenability, in fact, places some pressure on the courts to provide adequate treatment to youth who are amenable to treatment. If clinicians base a finding that youth is not amenable simply because facilities are not available in the district, then this may diminish constructive attempts to process and treat youth in juvenile facilities. Taken together, child forensic psychologists assessing treatment amenability of youth facing transfer would want to consider and assess the degree and type of psychopathology, protective factors, and family functioning as well as motivation and expectation for change, level of anxiety or concern, and remorse and empathy for the index and/or previous offense. These factors could be assessed through interviewing, collateral source data, police and court records, and other relevant information. The clinician will want to understand whether previous treatments were adequate or appropriate, and why such rehabilitative efforts may have failed. In view of the generally unsatisfactory state of juvenile rehabilitative efforts throughout the country, counsel for the child should always explore exactly what has been done for the child

330

Randall T. Salekin and Ross D. Grimes

in the past (e.g., nature of the prior treatment, frequency of efforts made to work with him or her, and whether the youth was given a chance to “resocialize”). Some youth are placed on probation or a “training” school but then are, for the most part, neglected (Grisso, 2000; Strasburger, 1989). Three aspects of youthful behavior further complicate juvenile assessment of amenability. First, juveniles, in contrast to adults, rarely wish to appear sick no matter how advantageous this may be legally. Adolescents sometimes assume a “tough guy/girl” stance, preferring to be seen as “bad” rather than “mad.” Second, some youth do not fully understand the purpose of the evaluation (see Salekin, Kubak, & Lee, in press). Third, juveniles may be suspicious of the evaluation and not provide adequate information. Some researchers note that adolescents can be more frightened by the process and may have unrealistic ideas of the examiner. For instance, youth may not believe they have to provide comprehensive information because mental health professionals, with their special expertise, can “fill in the gaps.” Of course, the more comprehensively adolescents report information to the mental health professional, the better the evaluation will be in terms of thoroughness and accurateness. Because of the intrusiveness of the consequences into the lives of juveniles, they may be realistically unmotivated to cooperate with the evaluation. Because of these parameters, it is clear that even more care must be exercised with a juvenile than with an adult examination. The literature indicates that adolescents are remarkably resilient and subject to positive change through both development and treatment (Woolard, Fondacaro, & Slobogin, 2001). Because of the potentially severe consequences in juvenile transfer evaluations, these factors must be given substantial weight. Also, it should be noted that many of the treatment amenability factors are also dynamic and subject to change if the youth can be reached regarding the importance of change. Some of this might be accomplished through motivational interviewing and attempting to have the youth’s expectation of positive outcome from psychotherapy change over time. To this point in the chapter, we have discussed the rational for waiver, the various mechanisms for waiver, the standards that are applied by judges in determining whether a youth should be transferred as well as the criteria that underlie each standard. We also suggested that the most parsimonious model for waiver evaluations is one that likely considers three superordinate juvenile offender factors—namely, risk for dangerousness, sophistication–maturity, and treatment amenability. We then highlighted that these factors ought to be included in most reports and provided a research update on each of the three pertinent constructs. In the next section of this chapter, we discuss how this information can be coherently evaluated and reviewed in a psychological report as well as testimony. We suggest several psychological measures that can be used in transfer evaluations but focus the section on the RiskSophistication-Treatment-Inventory which provides a structure for evaluating risk, maturity, and amenability.

The Evaluation and Psychological Report: Putting It All Together After a full investigation, the clinician’s report to the court should be clear and concise. Medical and psychological jargon should be avoided, and the report should be

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

331

written in such a manner that it transforms a psychological report into understandable information for juvenile court judges. The report should contain identifying data, an introduction outlining the forensic issue (the psycholegal question being addressed); the circumstances initiating referral for evaluation; the sources of information on which the evaluation was based; a description of the offense; developmental, social, educational, vocational, legal, and medical history; mental status; and conclusion to the forensic question. The mental health professional’s greatest contribution to the court in transfer cases is the careful reporting of observable data and the conclusions derived from the data. If the data are insufficient to support an opinion, we suggest, as did Grisso (2000), that no opinion be offered. Although these guidelines offered by Grisso (2000) and Ewing (1990) are of clear value, it is difficult to address questions of dangerousness, sophistication–maturity, and treatment amenability in the absence of assessment technology designed specifically for the measurement of these constructs. One measure, the Risk-Sophistication-Treatment-Inventory (RST-I; Salekin, 2004), was designed to meet the specific needs of mental health professionals who provide general dispositional rehabilitation evaluations for the juvenile courts. The RST-I addresses three important psychological constructs mentioned above, namely: (a) a juvenile’s level of dangerousness, (b) level of maturity or sophistication, and (c) the degree to which the youth is amenable to treatment. It provides a focused assessment by producing ratings that provide a basis for nuanced descriptions of the complex prongs delineated in the Kent decision that inform court placement and treatment decisions. The RST-I can be used prior to disposition decisions or to assist with legal decisions regarding treatment and design of individualized treatment plans. The RST-I is a semistructured interview (60 min) and rating scale designed to help clinicians assess juvenile offenders (aged 9 to18 years) in three important areas. The RST-I measures each of the areas mentioned above using three scales composed of 15 items. Items are rated on three-point scales (0 = absence of the characteristic/ability, 1 = subclinical/moderate, 2 = presence of the characteristic/ability), which reflect the extent to which the individual demonstrates the specific characteristic or ability. Each scale contains three subscales, referred to as “clusters.” The Risk for Dangerousness Scale is comprised of the Violent and Aggressive Tendencies (R- VAT), Planned and Extensive Criminality (R-PEX), and Psychopathic Features (R-PPF) clusters. The clusters of the Sophistication-Maturity Scale are Autonomy (S-AUT), Cognitive Capacities (S-COG), and Emotional Maturity (S-EMO). The Sophistication–Maturity Scale is neither prosocial nor antisocial. It measures maturity broadly while also allowing clinicians to then rate the extent to which the related emotional/cognitive skills are used for criminological purposes. Finally, the Treatment Amenability clusters are Psychopathology/Degree and Type (T-PAT), Responsibility and Motivation to Change (T-RES), and Consideration and Tolerance of Others (T-CAT). Table 13.2 lists the items for each RST-I scale and cluster (see Table 13.2). The RST-I Interview Booklet contains queries designed to obtain background, clinical, and historical information, as well as a sample of the juvenile’s behavioral and psychological functioning. Items on the rating form reflect information central to the three scales. Scoring of items involves reviewing and synthesizing information from an interview and collateral sources such as school, police, detention, and

332

TABLE 13.2

Randall T. Salekin and Ross D. Grimes

Items for the RST-I Scales and Clusters

Risk for Dangerousness

Violent and Aggressive Tendencies (R-VAT) Engage in unprovoked violent behavior Violence toward individuals Violence toward animals Easily angered and physically aggressive Generally oppositional and cruel Planned and Extensive Criminality (R-PEX) Severe antisocial behavior Premeditated crimes Leadership role in crimes Frequency of past criminal acts Age of onset of antisocial behavior Delinquent peer group Psychopathic Features (R-PPF) Lacks remorse Lacks empathy Egocentricity Manipulative

Sophistication–Maturity

Autonomy (S-AUT) Autonomy Internal locus of control Development of self-concept Self-reflection Cognitive Capacities (S-COG) Aware of wrongfulness of crimes Understanding of behavioral norms Able to identify alternative actions Foresight (has future time perspective) Cost-benefit analysis in decision making Ability to anticipate consequences Emotional Maturity (S-EMO) Able to delay gratification Moral development Self-regulation of emotion Conflict resolution Interpersonal skills

Treatment Amenability

Psychopathology-Degree and Type (T-PAT) Degree of psychopathology Treatability of psychopathology Aware of difficulties and problems Insight into cause of problems Limited police/court/probation involvement Responsibility and Motivation to Change (T-RES) Motivated to engage in treatment Takes responsibility for actions Open to change Expects change Positive involvement by parents Considerate and Tolerant of Others (T-CAT) Anxiety about the circumstance Feels guilt/remorse Considers and generally cares about others Has protective factors Has positive attachments

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

333

previous treatment records, and consultations with parents or guardians. Proper administration and coding of the RST-I requires considerable professional knowledge, skill, and experience with juvenile offenders. As reported in the manual (Salekin, 2004), the RST-I has promising psychometric properties. For instance, Zalot (2002a, 2002b) found inter-rater ICCs of .84, .73, and .83; and Leistico (2002) found ICCs of .94, .74, and .91 on the Risk of Dangerousness, Sophistication–maturity, and Treatment Amenability scales, respectively. The validity of the RST-I appears to be promising (e.g., Leistico & Salekin, 2003; Salekin, 2004), and there are now two shorter research versions of the measure (see Salekin, 2006 and Leistico, DeCoster, & Salekin, 2006). Although the RST-I is one potential measure to use in such evaluations, it should not be the sole measure utilized in evaluations, and it is not a tool that directly links to legal decisions. Rather, forensic assessments should incorporate a battery of measures of standard intelligence testing, child and adolescent psychopathology, and other areas. The RST-I is useful because its scoring design allows for systematic follow-up regarding recidivism, treatment compliance, and other outcome indicators, but the ultimate decision is left to the juvenile court judge. Also there has been some discussion as to whether these are psychological concepts, psycholegal concepts, or legal concepts. With respect to our research, we view these concepts as psychological. However, they become legal concepts in terms of the level at which juvenile court judges deem the information pertinent to transfer. Another area at which the concepts become psycholegal is how judges decide to balance the concepts along with other information when they decide upon waiver (e.g., public safety is more important than questions of amenability). Thus, categorical decisions about when a youth is going to be rendered dangerous as it pertains to transfer is the legal aspect of the psychological constructs outlined as important to waiver cases. We elaborate further on this point when we cover the issue of ultimate opinions. Although the RST-I has a normative sample, it intentionally does not provide, or suggest, cut-off scores that would dictate or exclude a particular disposition for a given youth. It is necessary for mental health professionals to use scores in conjunction with their clinical acumen to arrive at decisions regarding a youth’s dimensional level of risk, maturity, and treatment amenability. Examiners are encouraged to consider contextual factors, for example, not only when scoring the RST-I items, but also when interpreting scale scores within the broader clinical context. For instance, as a result of the predominant environment, youth may lead a lifestyle that relies on risky behavior for survival. The RST-I interview allows clinicians to obtain this information, which should be brought to light in the context of evaluations and testimony. Using Clinical Information to Address the Legal Standards and Criteria Delineated in the Statutes Upon concluding their evaluations and arriving at opinions relevant to the questions of risk, maturity, and amenability to rehabilitation, examiners should be able to clearly explain how they arrived at those opinions by showing what information from the evaluation was relevant and what logic was used to move from the information to

334

Randall T. Salekin and Ross D. Grimes

the clinical opinion (Grisso, 2000). Above, we suggest use of the RST-I as a coherent structure for evaluating juvenile offenders that takes into consideration theories of developmental pathways to antisocial behavior and prototypical analyses results to arrive at decisions about risk for offending. These theoretical underpinnings to the RST-I also follow closely with the theories of juvenile offenders developed and tested by Quay (1964) as well as the empirical work of DiCataldo and Grisso (1995), Moffitt (1993, 2003) and others. However, clinicians may not choose to use this structure. The point of this chapter is to suggest that the examiner should have some model for describing the youth, whether it be for a general disposition case or more serious cases. This model should derive from a theory of child and adolescent development, personality, and delinquency. Thus, it might include classification of the youth according to a number of typologies and systems for personality description. The field provides a number of useful theories and typologies devised from extensive research specifically for delinquent youths that clinicians can draw upon (e.g., Achenbach, 1991; Jesness & Wedge, 1984, 1985; Loeber, 1991; Moffitt, 2003; Quay, 1987; Witt, 2003). Provinding Context to The Evaluation Although assessing dangerousness, maturity, and amenability are important, the examiner should also put them in context. Thus, if dangerousness is linked to environment in which the youth lives, this should be mentioned. Also, reports should examine and characterize the extent of involvement with the law, how severe the past crimes have been, and if there exist personality characteristics (e.g., callousness) that might contribute to the risk for further offending. With respect to maturity, reports should center on the extent to which the youth is a mature participant, how much maturity he or she exhibits, including both cognitive and emotional maturity. These evaluations should also be put in context, and although the law might be interested in these factors for legal purposes (culpability), psychologists may also want to shed light on how these factors might improve treatment outcome, should youth effectively use their cognitive skills to make substantive changes in their lives. In addition, as a number of the factors are dynamic (e.g., use of cognitive and emotional skills), it is possible that there are a number of factors which are potential targets of treatment. Although the current chapter addresses the practice of assessing dangerousness, sophistication–maturity, and amenability to treatment, it does not inform clinicians of the complex issue of weighing these constructs (see Brannen et al., 2006). This task is difficult and weighting of factors will be left to judges in juvenile courts, at least with regard to the ultimate decision. Nevertheless, psychologists might want to provide more detail than simply a youth’s level of dangerousness, sophistication, and treatment amenability in isolation. We would suggest that if psychologists can develop an appropriate roadmap for change and, if they view the youth as amenable, that they highlight those points in their psychological reports and testimony suggesting ways that potential dangerousness could be managed while treatment is on-going.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

335

Thus, an important component of the evaluation for mental health professionals is to suggest what types of treatment might allow for change. This has been articulated well by Grisso (1998, 2000) who suggests that transfer evaluations should aim to not only describe the youth but also determine and delineate what needs to change, outline what the optimal rehabilitation plan is, and what the probable outcome would be of the implementation of the plan. With respect to describing what needs to change, the examiner should formulate a theory about the relation between the developmental picture of the youth and the youth’s delinquency. This theory, according to Grisso (2000), becomes the basis for identifying what aspects of the juvenile and/or family need to change in order to meet the juvenile justice system’s objectives (to provide for the welfare of the youth and to promote public safety). Estimating the probable outcomes of future rehabilitative efforts requires that the examiner take into consideration factors that have been found to be related to the likelihood of change in psychotherapeutic interventions, including an individual’s capacity to form attachments to caregivers, degree of anxiety or psychological discomfort (which can be used to motivate change), and the chronicity of the condition that must be modified (Grisso, 1998). Relevant considerations may range from factors borrowed from criminology (e.g., as noted earlier, the fact that youths with certain histories tend not to persist in delinquency past the adolescent years; Moffitt, 1993; Loeber & Farrington, 1998) to knowledge derived from psychopharmacology regarding the likely response of a youth to a proposed trial on a particular medication (Grisso, 2000).

The Ultimate Opinion Regarding Transfer Throughout the chapter we have attempted to highlight that there is a difference between legal decisions about transfer, an opinion related to the legal standard (e.g., danger to others), and an opinion that the legal standard has been met or what the legal decision about waiver ought to be. The legal decision requires a judgment that the total weight of the relevant evidence in the case is sufficient to sustain the decision. Clinicians are not responsible for establishing cut points (when should the youth be considered dangerous and thus transferred) or weighing pertinent factors (is public safety more important than the development of the youth), nor do mental health professionals necessarily have access to all the evidence presented in a case. The best clinicians can currently do, given the state of clinical knowledge in this area, is to provide an opinion about the estimated likelihood that a youth with similar characteristics will engage in general recidivism or violent behavior in the future, their level of maturity, and/or the rehabilitation progress that can be expected. Once the clinician has offered an opinion about the degree of risk that the case poses, it is the role of the judge to determine whether that level of risk is sufficient to meet the legal requirements for a conclusion that the youth “is dangerous” or “should be waived to criminal court” or alternately “should remain in juvenile court.” Thus, as mentioned, risk for dangerousness, maturity, and treatment amenability are important in any juvenile evaluation; however, the concepts as they relate to transfer standards have more to do with the degree or level to which a

336

Randall T. Salekin and Ross D. Grimes

youth possesses characteristics of a given construct and how the judge balances the constructs. Another example of how the decisions are legal in nature is the amenability to rehabilitation standard, which, as stated in most states, does not ask simply whether the youth’s conduct can be modified. It asks whether it can be modified within the resources and time available to the juvenile court. Thus, the psychological concept of amenability does not typically factor in a time limit, but the juvenile justice system requires this consideration. Thus, according to the legal system the amenability question is not answered merely by evaluation of the characteristics of a youth or whether the youth is “malleable.” The question also requires matching those characteristics with the options available for rehabilitation and considering whether treatment gains can be made within a specific time frame. When clinicians do not know what resources are available, their role is to describe what the youth needs and to let others in the legal system obtain from other sources (e.g., probation officers, other mental health professionals) the information needed to identify whether there are appropriate rehabilitation services to meet those needs (Grisso, 2000).

Transforming the Law: How Difficult Evaluations Can Eventually Inform Policy Assessments for waiver of jurisdiction cases serve many purposes that are important for policy makers and society when they are performed properly. First, these evaluations can be instrumental in identifying youths who are likely to desist in their delinquent behavior as they age out of adolescence. Second, these assessments can identify youths who are developing serious mental disorders and who need psychiatric and psychological treatment. Third, properly performed forensic clinical evaluations can contribute to the fairness of the legal process in transfer cases (Grisso, 2000). As Grisso notes, if they are designed appropriately, guided by legal standards and requirements, they assure that the court does not overlook important psychological variables, and they provide a relevant structure within which the courts can think about the cases before them in relation to the legal standards and criteria underpinning the legal standards. If they are performed carefully, guided by a scientific foundation, they protect against bias and potentially faulty presumptions, enhancing the quality of justice (Brannen et al., 2006; Grisso, 2000; Penney & Moretti, 2005). Finally, society may also be well-served when evaluations for waiver of jurisdiction identify youths who are unlikely to respond to rehabilitative efforts (e.g., adolescents who have already developed well-practiced antisocial characteristics and for whom previous rehabilitative efforts have repeatedly been unsuccessful). If these conclusions are accurate, Grisso (2000) has noted that juvenile justice facilities are spared unproductive efforts that may place other youths in danger while also draining the availability of resources that could be directed toward youths for whom rehabilitation is truly possible. These benefits, however, are possible only if evaluations of youths’ danger to others, maturity, and amenability to rehabilitation are performed competently. Providing competent evaluations for courts is a systematic objective requiring commitments not only by clinicians, but also by lawmakers and by other persons in authority who

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

337

can influence policy and legal practice. Concerning the legal system’s potential contribution for improving waiver evaluations, we can expect remarkable improvements in clinicians’ abilities to address the law’s questions about waiver of jurisdiction as the law clearly defines the criteria for waiver. This clarity has improved over time with the feedback that has occurred between judges, court personnel, psychologists and other mental health professionals (Grisso, Tomkins, & Casey, 1989; Salekin et al., 2002; Salekin et al., 2003). Grisso (2000) has noted that part of the answer to better waiver evaluations lies with a national commitment to research. It is possible to perform transfer assessments systematically and logically, and much of the process and clinical inference can be based on an empirical foundation. However, the research base for the three concepts could be much deeper and richer. The literature until recently has provided almost no guidance to clinicians in performing waiver evaluations. Fortunately, some progress is finally being made on the identification of risk factors for violence that can be used in clinical evaluations with juveniles, although a good deal more work is needed to test their combined power and accuracy. Finally, we believe that one way to improve transfer evaluations is to further examine the dynamic risk factors and to have the evaluations conducted frequently. At present, single-point “snapshot” predictions are made that are essentially limited to one point in time (Douglas & Skeem, 2006). This may not be particularly helpful as the youth grows. With policy change and a juvenile justice system that is transformed, the concepts of violence prevention maturation, management, and treatment could very well be infused into contemporary thinking of juvenile evaluations and treatment. This conceptual model might underscore the necessity for identifying, measuring, and monitoring changeable risk factors in youth over time because these factors are the most promising targets for risk reduction efforts. To be maximally effective, the chief task with youth risk assessment and management contexts might be to evaluate risk factors and their variability over time, rather than assuming that single-point estimates will remain valid indefinitely (Douglas, Cox, & Webster, 1999). Maturity and amenability offer two concepts that are potentially changeable and may impact youth violence and treatment potential over time but single point predictions do not allow for the development of change in these concepts. As such, one policy goal might be to frequently adopt the blended sentence option so that youth can be monitored not only retrospectively but also prospectively over longer periods of time before making a decision about transfer.

Conclusion Clinical evaluations for waiver cases have a synergistic relation to the legal decision making process they inform (Grisso, 2000). On the one hand, as we did with this chapter, clinicians look to the law (statutes, case precedent, and local practice) for their clues regarding the types of information that courts require for making their transfer decisions (Grisso, 2000). Their knowledge and interpretations of those directives from law influence the data they collect and how they examine and interpret them. Courts influence the clinical forensic process by providing legal guidance

338

Randall T. Salekin and Ross D. Grimes

for clinicians. On the other hand, the ways that clinicians frame their opinions and reports for use by the legal decision maker have an effect on the way the courts structure their application of legal standards to questions of waiver. Grisso (2000) suggests that out of this two-way interaction emerges and evolves the meaning of the legal standards that guide judicial decisions about juvenile waiver in practice. What the current chapter indicates is that more than one assessment over time might better inform whether youth should be transferred to adult courts. This may mean that one important consideration for policy change is to expand the use of blended sentencing so that clinicians and juvenile court personnel can monitor the future of adolescent maturity and amenability to determine if youth can be returned to the community for healthy development rather than be transferred to adult court where rehabilitation is less likely.

Case Example Summary of Case Perry is a 15-year-old boy who was apprehended by the police after attempting to rob a convenience store. During the robbery, which was committed with two adult accomplices, one of the clerks was injured and sustained a broken arm after being hit with a club by one of Perry’s accomplices. With respect to past legal history, Perry has had some prior involvement with the judicial system. Specifically, he was charged with truancy at age 13, running away from home at age 14, and defacing property at age 15. As a result of his past legal contacts, Perry had been detained and received treatment in a detention center where he resided for 60 days. In the current case, the juvenile court prosecutor moved for the case to be waived to criminal court, in light of the seriousness of the offense, the injuries sustained by the clerk, and Perry’s previous involvement with the juvenile court. Perry’s attorney objected to this move, and the court convened a hearing to determine whether or not the case should be waived. The juvenile court judge also ordered a psychological evaluation to assist in the determination.

Psychological Evaluation The psychological evaluation ordered by the court revealed that Perry has average intelligence and below average academic achievement. Among the measures administered by the psychologist was the RST-I. This measure is designed specifically to look at constructs relevant to juvenile offenders and indexes three broad domains: risk, sophistication–maturity, and treatment amenability. On the risk scale, Perry scored in the low offender range. On the sophistication/maturity scale, Perry scored in the low-moderate offender range, and on the treatment amenability scale, he scored in the middle offender range. Cluster scores for all of the scales were in the average to low range. Thus the RST-I indicated that Perry was not at high risk for dangerousness, showed some immaturity, and showed some potential for benefit from therapy.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

339

The psychologist also administered the PCL:YV, a measure of psychopathy-like features in youth. After an extensive interview and review of records, the psychologist determined that Perry scored a 15 out of 40. Although there is no generally accepted cut-off for diagnosing psychopathy, individuals generally must score between 25 and 30 to be considered high scorers on the adult measures. During the evaluation, Perry showed features of irresponsibility and stimulation seeking; however, the psychologist determined that Perry did not display callousness and emotional detachment usually associated with psychopathy, that he had taken responsibility for his role in the crime, and that he was remorseful about its effect on the victim. Finally, based on a general clinical interview with Perry, his parents, and his teachers and the administration of a general psychopathology scale, the psychologist determined that Perry met diagnostic criteria for Attention Deficit Hyperactivity Disorder, combined type, and Conduct Disorder. Based on the results of the interviews and clinical measures completed by Perry, his parents, and his teachers, the psychologist provided to the court a report outlining his findings in three areas: Perry’s risk of future dangerousness, Perry’s overall level of sophistication and maturity, and the likelihood that he will be amenable to the treatment facilities available to the juvenile court within the time frame of its jurisdiction. In the area of dangerousness, he concluded that with appropriate supervision, Perry was unlikely to present a significant danger; however, he noted that Perry’s parents were unlikely to provide such an environment without additional support. In the area of sophistication–maturity, he concluded that Perry presented himself as low-to-moderate with regard to maturity, and of low-average intelligence. He also engaged in some planning and forethought before acting, and that he was showing some escalation in criminal activity. Finally, in the area of amenability to treatment, the psychologist concluded that Perry was likely amenable to treatment, but that previous attempts at short-term treatment had been ineffective and that he required relatively intensive services, particularly relating to his association with a deviant peer group and poor familial relations. He noted that Perry had expressed some willingness to undergo treatment or therapy “if it would keep [him] out of jail.” However, the psychologists determined upon further questioning that Perry did have genuine interest in treatment. Pursuant to generally accepted practice, the psychologist offered no opinion on the ultimate legal issue of transfer. Interpretation of Law According to state law, the judge must balance “the interests of the juvenile” against “the welfare of the public.” Probable cause for charging Perry in the robbery is assumed for purposes of the transfer hearing. The relevant statutes lists eight factors that should be considered in making a transfer determination. The table below presents the eight factors to be considered (note: specific factors vary slightly by state,

340

Consideration

Randall T. Salekin and Ross D. Grimes

Prosecution Case

Defense Case Perry is within the age range allowing transfer, but too young to fully appreciate the nature of his criminal activity. Perry was involved in the actual robbery, but did not intend for clerk to be injured and was not directly responsible for the injuries Perry had no knowledge that clerk would be injured during attack and was not the one responsible for the injuries Perry’s prior record contains only minor status offenses and one nonviolent property offense

Age

Perry is within the age range allowing transfer

Seriousness of offense

Injuries to clerk indicate a violent attack

Culpability of minor

Any individual in the robbery bears equal responsibility for the consequences

Prior record of delinquency

Perry’s prior record is consistent with escalating delinquency

Desirability of disposing of case in one court when accomplices are adults

Interests of justice require that all three associates be tried in adult court, particularly considering nature of the crime and injuries sustained by victim

It would be unfair and unjust to try a minor whose role was insignificant in the same proceedings as two violent adult offenders.

Availability, willingness, and amenability to treatment

Juvenile facilities are not equipped to deal with children displaying Perry’s level of violence and delinquency

Juvenile rehabilitation methods are available to encourage Perry to desist and live a productive life

Data/Evidence from Psychological Report Perry is 15 years old

Perry is following an escalating trajectory of delinquency, however, the late start of his delinquency is more consistent with an adolescent-limited pathway. No relevant data

Perry expressed some willingness to engage in treatment, but treatment would have to be intensive in order to be effective.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

Consideration

Prosecution Case

Defense Case

Public safety

Perry’s escalating record of delinquency requires significant intervention to protect the public from future violence

Sophistication and maturity of the minor

The robbery was preplanned and showed sophistication. Perry’s academic record suggests sufficient maturity to understand the nature of his offense and potential consequences

This was a nonviolent crime that escalated as a result of other individuals. Nothing in Perry’s record indicates a great risk to the public This was a relatively unsophisticated crime committed by an unsophisticated individual. Perry’s academic record suggests low achievement and maturity

341

Data/Evidence from Psychological Report Without effective treatment and monitoring, Perry is likely to engage in increasingly dangerous behavior Perry has low average intelligence and emotional maturity. Perry’s criminal history suggests increasing sophistication. However, this maturity could be used to his benefit in treatment

the following are the most common ones listed), along with one-sentence summaries of the prosecution case, defense case, and any data or evidence obtained by the psychologist that is relevant to the factor at issue. The juvenile court judge has to weigh the various factors in light of the broad standard and come to a decision on transfer/waiver. States differ in who has the burden of proof during transfer hearings, often dependent on specific facts of the crime and/or juvenile (age, use of a weapon, nature of offence, etc.). Deliberation and Outcome In making his determination, the juvenile court judge considers the prosecution and defense cases, as well as the results of the psychological exam. After deliberation the judge finds that Perry’s case should not be transferred to adult court. Specifically, he concludes that Perry currently lacks the sophistication and maturity of an adult criminal, that he was less culpable in the planning and execution of the crime, that the treatment facilities available to the juvenile court system are sufficient for his rehabilitation prior to adulthood, and that with appropriate supervision and monitoring (remedies available to the juvenile court through probation and/or detention) he will not represent a substantial danger to the public. He concludes that transferring Perry’s case to adult court will prevent Perry from receiving the treatment and assistance he needs in order to become a productive member of society by the time he reaches adulthood. Treatment outcome monitoring is recommended with respect to risk, maturity, and treatment amenability. Particularly the judge requests regular updates from the therapist and probation officer assigned to Perry’s case regarding his compliance with treatment, which is intended for use in determination of probation and supervision requirements.

342

Randall T. Salekin and Ross D. Grimes

Conclusion The above case illustrates some of the common considerations in juvenile transfer hearings, as well as the difficult nature of balancing the competing interests of public safety and a commitment to the original ideals of the juvenile justice system of rehabilitation and treatment. As we noted above, mental health professionals who conduct juvenile forensic evaluations bear a responsibility to become familiar with the procedures, processes, and factors that apply in the state in which they practice. By framing the debate in terms of the increasingly well validated psycho-legal constructs of dangerousness, sophistication/ maturity, and treatment amenability, we believe that psychologists can provide a valuable and critical service to the courts and to the juveniles that that the courts were created to serve. We also believe that monitoring these concepts over time, will allow for better judgments about transfer, particularly when the cases are ambiguous. Blended sentencing and other nontraditional sentencing mechanisms may allow for new (e.g., changes in maturity and treatment) information to inform judicial and/or legal decisions about cases, which more traditional waiver mechanisms do not allow for, thereby maximizing the opportunity for healthy development in youth. Endnote 1. Whereas reverse transfer is an option mostly in states where youth are received in adult courts through automatic and prosecutorial direct file, six states allow for youths to be reverse transferred even when they are transferred through judicial (upward) waiver.

References Achenbach, T. (1991). The derivation of taxonomic constructs: A necessary stage in the development of developmental psychopathology. In D. Cicchetti and S. L. Toth (Eds.), Rochester Symposium on Developmental Psychopathology, Vol. 3: Models and Integrations (pp. 43–74). Rochester, New York: University of Rochester Press. Adams, S. (1970). The PICO project. In N. Johnson, L. Savitz, & M. E. Wolfgang (Eds.), The sociology of punishment and correction (2nd ed., pp. 548–561). New York: Wiley. American Psychiatric Association. (1994). Diagnostic and statistical manual of mental disorders, 4th ed. Washington, DC: Author. Barnum, R. (1987). Clinical evaluation of juvenile delinquents facing transfer to adult court. Journal of the American Academy of Child and Adolescent Psychiatry, 26, 922–925. Borum, R. (1996). Improving the clinical practice of violence risk assessment: Technology, guidelines, and training. American Psychologist, 51, 945–956. Borum, R., Bartel, P., & Forth, A. (2005). Structured assessment of violence risk in youth. In T. Grisso, G. Vincent, and D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 311–323). New York: Guilford Press. Brannen, D. N., Salekin, R. T., Zapf, P. A., Salekin, K. L., Kubak, F. A., & DeCoster, J. (2006). Transfer of youth to adult courts: A National Study of how juvenile court judges weigh pertinent Kent factors. Psychology, Public Policy, and Law, 12, 332–355. Caldwell, M., Skeem, J. L., Salekin, R. T., & VanRybroek, G. (2006). Treatment response of adolescent offenders with psychopathy features: A 2-year follow-up. Criminal Justice and Behavior, 33, 571–596.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

343

Carlson, B. E., Barr, W. B., & Young K. J. (1994). Factors associated with treatment outcomes of male adolescents. Residential Treatment for Children and Youth, 12, 39–58. Cauffman, E., & Steinberg, L. (2000). (Im)maturity of judgment in adolescence: Why adolescents may be less culpable than adults. Behavioral Sciences & the Law, 18, 741–760. Dicataldo, F., & Grisso, T. (1995). A typology of juvenile offenders based on the judgments of juvenile court professionals. Criminal Justice and Behavior, 22, 246–262. Douglas, K., Cox, D., & Webster, C. (1999). Violence risk assessment: Science and practice. Legal and Criminological Psychology, 4, 149–184. Du Toit, L., & Duckitt, J. (1990). Psychological characteristics of over- and undercontrolled violent offenders. Journal of Psychology, 124, 125–141. Edens, J., Skeem, J., Cruise, K., & Cauffman, E. (2001). Assessment of ‘juvenile psychopathy’ and its association with violence: A critical review. Behavioral Sciences & the Law, 19, 53–80. Ewing, C. P. (1990). Juveniles or adults? Forensic Assessment of juveniles considered for trial in criminal court. Forensic Reports, 3, 3–13. Forth, A. E., & Burke, H. C. (1998). Psychopathy in adolescence: Assessment, violence, and adolescent precursors. In D. J. Cooke, A. E. Forth, & R. D. Hare (Eds.), Psychopathy: Theory, research, and implications for society (pp. 205–229). Dordrecht, The Netherlands: Kluwler. Frank, J. D. (1959). The dynamics of the psychotherapeutic relationship. Psychiatry, 22, 17–39. Frick, P., & Morris, A. (2004). Temperament and Developmental Pathways to Conduct Problems. Journal of Clinical Child and Adolescent Psychology, 33, 54–68. Frick, P., Cornell, A., Barry, C., Bodin, S., & Dane, H. (2003). Callous-unemotional traits and conduct problems in the prediction of conduct problem severity, aggression, and selfreport of delinquency. Journal of Abnormal Child Psychology, 31, 57–470. Fried, C. S., & Reppucci, N. D. (2001). Criminal decision making: The development of adolescent judgment, criminal responsibility, and culpability. Law and Human Behavior, 25, 45–61. Garfield, S. L. (1994). Research on client variables in psychotherapy. In S. L. Garfield & A. E. Bergin (Eds.), Handbook of psychotherapy and behavior change (3rd ed., pp. 190–228). New York: Wiley. Gretton, H. M., McBride, M., Hare, R. D., O´Shaughnessy, R., & Kumka, G. (2001). Psychopathy and recidivism in adolescent sex offenders. Criminal Justice and Behavior, 28, 427–449. Griffin, P., Torbet, P., & Szymanski, L. (1998). Trying juveniles as adults in criminal court: An analysis of state transfer provisions. Office of Juvenile Justice and Delinquency Prevention: U.S. Department of Justice. Grisso, T. & Appelbaum, P. S. (1992). Is it unethical to offer predictions of future violence? Law and Human Behavior, 16, 621–633. Grisso, T. (1986). Psychological assessment in legal contexts. In W. J. Curran, A. L. McGarry, and S. A. Shah (Eds.), Forensic psychiatry and psychology: Perspectives and standards for interdisciplinary practice (pp. 103–128). Philadelphia, PA: F A Davis. Grisso, T. (1998). Forensic evaluation of juveniles. Sarasota, FL: Professional Resource Press. Grisso, T. (2000). Forensic clinical evaluations related to waiver of jurisdiction. In J. Fagan & F. E. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to the criminal court, (pp. 321–352). Chicago, IL: University of Chicago Press. Grisso, T., Tomkins, A., & Casey, P. (1988). Psychosocial concepts in juvenile law. Law and Human Behavior, 12, 403–437. Heilbrun, K., Leheny, C., Thomas, L., & Huneycutt, D. (1997). A national survey of U.S. Statutes on juvenile transfer: Implications for policy and practice. Behavioral Sciences and the Law, 15, 125–149.

344

Randall T. Salekin and Ross D. Grimes

Hoge, R. (2005). Youth Level of Service/Case Management Inventory. In T. Grisso, G. Vincent, and D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 283–294).New York: Guilford Press. Izzo, R. L., & Ross, R. R. (1990). Meta-analysis of rehabilitation programs for juvenile delinquents: A brief report. Criminal Justice and Behavior, 17, 134–142. Jesness, C., & Wedge, R. (1984). Validity of a revised Jesness Inventory I-Level Classification with delinquents. Journal of Consulting and Clinical Psychology, 52, 997–1010. Kalogerakis, M. (1992). Disposition. In Handbook of psychiatric practice in the juvenile court (pp. 71–77). Washington, DC: American Psychiatric Association. Kalogerakis, M. (1992). Violent juveniles. In Handbook of psychiatric practice in the juvenile court (pp. 111–119). Washington, DC: American Psychiatric Association. Kazdin, A. E. (1985). Treatment of antisocial behavior in children and adolescents. Homewood, IL: Dorsey Press. Kent v. U.S., 383 U.S. 541 (1966). Kohlberg, L. (1981). Stages and aging in moral development. San Francisco, CA: Harper & Row. Kruh, I. P., & Brodsky, S. L. (1997). Clinical evaluations for transfer of juveniles to criminal court: Current practices and future research. Behavioral Sciences and the Law, 15, 151–165. Leistico, A.-M. R., DeCoster, J., & Salekin, R. T. (2006). The Risk-Sophistication Treatment Inventory-Self Report [manual in preparation]. Leistico, A-M.R., & Salekin, R. T. (2003). Testing the reliability and validity of the Risk, Sophistication-Maturity, and Treatment Amenability Instrument (RST-i): An assessment tool for juvenile offenders. International Journal of Forensic Mental Health, 2, 101–117. Leistico, A.-M. R., Salekin, R. T., DeCoster, J., & Rogers, R. (in press). A large-scale metaanalysis relating the Hare measures of psychopathy to antisocial conduct. Law and Human Behavior. Loeber, R., & Farrington, D. (1998). Never too early, never too late: Risk factors and successful interventions for serious and violent juvenile offenders. Studies on Crime & Crime Prevention, 7, 7–30. Loeber, R., & Stouthamer-Loeber, M. (1998). Development of juvenile aggression and violence: Some common misconceptions and controversies. American Psychologist, 53, 242–259. Luthar, S. S. (1991). Vulnerability and resilience: A study of high risk adolescents. Child Development, 62, 600–616. Lynam, D., & Gudonis, L. (2005). The development of psychopathy. Annual Review of Clinical Psychology, 1, 381–407. McGrory, J. J. (1991). Violent young offenders: An investigation of the overcontrolled/undercontrolled personality typology. Unpublished doctoral dissertation, University of Toronto, Ontario, Canada. Megargee, E. I. (1966). Undercontrolled and overcontrolled personality traits in extreme antisocial aggression. Psychological Monographs, 80, (3, Whole No. 611). Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. Moffitt, T. E. (1993). Adolescent-limited and life-course persistent antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Moffitt, T. E. (2003). Life-course persistent and adolescent-limited antisocial behavior: A 10year research review and research agenda. In B. B. Lahey, T. E. Moffitt, and A. Caspi (Eds.), Causes of conduct disorder and juvenile delinquency (pp. 49–75). New York: Guilford Press.

Clinical Forensic Evaluations for Juvenile Transfer to Adult Criminal Court

345

Mulvey, E. (1984). Judging amenability to treatment in juvenile offenders: Theory and practice. In N. D. Reppucci, L. A. Weithorn, E. P. Mulvey, & J. Monahan (Eds.), Children, mental health, and the law (pp. 195–210). Beverly Hills, CA: Sage. Penney, S. R., & Moretti, M. M. (2005). The transfer of juveniles to adult court in Canada and the United States: Confused agendas and compromised assessment procedures. International Journal of Forensic Mental Health, 4, 19–37. Puzzanchera, C. (2003). Delinquency cases waived to criminal court, 1990–1999. OJJDP Fact Sheet, 4, FS-200304. Quay, H. (1964). Dimensions of personality in delinquent boys as inferred from the factor analysis of case history data. Child Development, 35, 479–484. Quay, H. (1987). Handbook of juvenile delinquency. Oxford, England: John Wiley & Sons. Salekin, R. T. (2006). The Risk Spohistication Treatment Inventory-Fast [manual in preparation]. Salekin, K. L., Ogloff, J. R. P., Ley, R., & Salekin, R. T. (2002). The overcontrolled hostility scale: An evaluation of its applicability with an adolescent population. Criminal Justice and Behavior, 29 , 718–733. Salekin, R. T. (2002). Psychopathy and therapeutic pessimism: Clinical lore or clinical reality? Clinical Psychology Review, 22, 79–112. Salekin, R. T. (2002a). Clinical evaluation of youth considered for transfer to adult criminal court: Refining practice and directions for science. Journal of Forensic Psychology Practice, 2, 55–72. Salekin, R. T. (2002b). Juvenile waiver to adult court: How can developmental and child psychology inform policy decision making. In B. Bottoms, M. B. Kovera, and B. McAuliff (Eds.), Children and the law: Social science and U.S. law (pp. 203–232). Cambridge, MA: Cambridge University Press. Salekin, R. T. (2004). Risk-Sophistication-Treatment—Inventory (RST-i). Lutz, FL: Psychological Assessment Resources. Salekin, R. T. (2006). Psychopathy in children and adolescents: Key issues in conceptualization and assessment. In C. J. Patrick (Ed.), Handbook of psychopathy (pp. 389–414). New York: Guilford Press. Salekin, R. T., & Frick, P. J. (2005). Psychopathy in children and adolescence: The need for a developmental perspective. Journal of Abnormal Child Psychology, 33, 403–409. Salekin, R. T., Kubak, F. A., & Lee, Z. (in press). Children and deception. In R. Rogers, Malingering (3rd ed.). New York: Guilford Press. Salekin, R. T., Rogers, R., & Machin, D. (2001). Psychopathy in youth: Pursuing diagnostic clarity. Journal of Youth and Adolescence, 30, 173–195. Salekin, R. T., Rogers, R., & Sewell, K. W. (1996). A review and meta-analysis of the Psychopathy Checklist and Psychopathy Checklist-Revised: Predictive validity of dangerousness. Clinical Psychology: Science and Practice, 3, 203–215. Salekin, R. T., Rogers, R., & Ustad, K. L. (2001). Juvenile waiver to adult criminal courts: Prototypes for dangerousness, sophistication-maturity, and amenability to treatment. Psychology, Public Policy, and Law, 7, 381–408. Salekin, R. T., Ziegler, T. A., Larrea, M. A., Anthony, V. L., & Bennett, A. (2001). Predicting dangerousness with the MACI Psychopathy Scale [manuscript in preparation]. Salekin, R., Yff, R., Neumann, C., Leistico, A., & Zalot, A. (2002). Juvenile transfer to adult courts: A look at the prototypes for dangerousness sophistication-maturity and amenability to treatment through a legal lens. Psychology, Public Policy, and Law, 8, 373–410. Schetky, D., & Benedek, E. (2002). Principles and practice of child and adolescent forensic psychiatry. Washington, DC: American Psychiatric Publishing.

346

Randall T. Salekin and Ross D. Grimes

Snyder, H. N., & Sickmund, M. (2006). Juvenile offenders and victims: 2006 National report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Steinberg, L., & Cauffman, E. (1999). A developmental perspective on serious juvenile crime: When should juveniles be treated as adults? Federal Probation, 63, 52–57. Steinberg, L., & Cauffman, E. (2000). A developmental perspective on judicial boundary. In J. Fagan and F. E. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to criminal court (pp. 379–406). Chicago, IL: University of Chicago Press. Sternberg, R. J. (2000). Implicit theories of intelligence as exemplar stories of success: Why intelligence test validity is in the eye of the beholder. Psychology, Public Policy, and Law, 6, 159–167. Strasburger, L. H. (1989). The juvenile transfer hearing and the forensic psychiatrist. In R. Rosner (Ed.), Juvenile psychiatry and the law (pp. 391–403). New York: Plenum Press. Swanson, J., Borum, R., Swartz, M., & Monahan, J. (1996). Psychotic symptoms and disorders and the risk of violent behaviour in the community. Criminal Behaviour and Mental Health, 6, 309–329. U.S. Department of Health and Human Services. (2001). Youth violence: A report of the Surgeon General. Washington, DC: United States Department of Justice. Weiner, I., & Hess, A. (2006). The handbook of forensic psychology. Hoboken, NJ: John Wiley & Sons. Witt, P. H. (2003). Transfer of juveniles to adult court: The case of H. H. Psychology, Public Policy, and Law, 9, 361–380. Witt, P. H., & Dyer, F. J. (1997). Juveniles transfer cases: Risk assessment and risk management. Journal of Psychiatry and Law, 25, 581–614. Woolard, J. L., Fondacaro, M. R., & Slobogin, C. (2001). Informing juvenile justice policy: Directions for behavioral science research. Law and Human Behavior, 25, 13–24. Woolard, J. L., Odgers, C., Lanza-Kaduce, L., & Daglis, H. (2005). Juveniles within adult correctional settings: Legal pathways and developmental considerations. International Journal of Forensic Mental Health, 4, 1–18. Zimring, F. E. (1998). American youth violence. New York: Oxford University Press.

14 Assessing Child and Adolescent Psychopathy Randall T. Salekin and Sara A. Debus

Adolescent psychopathy has already made its way into the field of forensic practice. Some recent cases have used expert testimony on child psychopathy to make decisions about trying a child as an adult. In these cases, expert witnesses reported that the child in question was unlikely to improve with treatment within the juvenile justice system due to certain “psychopathic” personality traits. For instance, in a case reviewed by Walsh and Walsh (2006), the Psychopathy Checklist-Revised (PCL-R; Hare, 2003) was used by the prosecution to support the defendant’s transfer to adult court. The defendant, “John Doe #3,” who was 21 at the time of trial, was charged with ten acts committed while a minor, including armed robbery, kidnapping, murder, and distribution of cocaine among others (United States v. Doe #3, 2000). The testifying psychologist concluded that John Doe’s psychopathy score, although slightly below the cut-off, indicated a high risk for recidivism (United States v. Doe #3, 2000). Although the defendant was transferred to adult court, the judge stated that it could not be concluded that John Doe #3 was in fact a psychopath (United States v. Doe #3, 2000). Another more highly publicized example of the use of the psychopathy construct in legal settings came to light in the Cody Posey murder trial in February of 2006. Posey was convicted of first-degree murder, second-degree murder, voluntary manslaughter, and four counts of evidence tampering for the deaths of his step-sister, step-mother, and father and the subsequent cover-up of their murders (Brown, 2006). To help determine the question of whether Posey should be sentenced as a child or an adult, Posey was administered the Psychopathy Checklist: Youth Version (PCL:YV; Forth, Kosson, & Hare, 2003). The prosecution’s expert witness testified that Cody Posey received a score of 19 on this assessment instrument (Grinberg, 2006). Another expert witness reportedly stated that there was a “slim to none” chance of changing psychopathic traits by adolescence (Brown, 2006). The prosecution then used this information to say that Posey was a psychopath and that “ . . . no one knows how to treat psychopathy” (Brown, 2006). The above described cases provide the reader with two examples of the uses, or perhaps the latter is better characterized as a misuse, of the psychopathy concept in child and adolescent forensic cases. The latter example is probably best characterized as a misuse because the statements made in this case go beyond what the test, in this instance the PCL:YV, purports to offer. Specifically, the PCL:YV manual states directly that the measure alone is not intended for legal decision-making (Forth et al., 2003) 347

348

Randall T. Salekin and Sara A. Debus

and the cut-off score for diagnosing someone as psychopathic is 30 in adults (Hare, 2003), which Posey did not meet. Also, the creators of the PCL:YV do not provide a cut-off score because with the current level of research, it is inappropriate to label a child or adolescent as a psychopath (Forth, et al., 2003). Thus, it could be argued that in the Posey case, the term psychopathy does not appear to be indicated for two primary reasons: (1) Posey scored relatively low on the PCL:YV, and (2) the manual does not suggest the use of the term psychopathy even in high scorers. In addition to these concerns, general conclusions that accompany high scorers—such as poor treatment prognosis—should not be applied to low scorers. Finally, even if Posey were to score high on the PCL:YV, some of the conclusions regarding high scorers should be updated. Specifically, there is little evidence, if any, to show that psychopathic individuals are unamenable to treatment, and there is some evidence emerging to show that psychopathy may be a treatable condition, especially with younger populations (Salekin, 2002; Skeem, Mulvey, & Monahan, 2002). These two case examples highlight the emergence of child psychopathy into adolescent forensic cases and at least one of the cases demonstrates how the PCL:YV can be inappropriately used. The aim of the current chapter is to provide detailed information on the psychopathy construct as it applies to children and adolescents, and to discuss how it might be used appropriately in clinical or clinical forensic settings. Specifically, the purpose of the current chapter is fivefold. First, we describe psychopathy and discuss why the concept might be important to consider in child samples as well as discuss differences between psychopathy and the DSM disruptive disorders at a descriptive and conceptual level (American Psychiatric Association, 1994, 2000). Second, we briefly discuss the developmental appropriateness of the psychopathy construct for children and adolescents. This section touches on some of the concerns that have typically been raised regarding the appropriateness of the psychopathy concept to child and adolescent samples, and it also addresses what science can currently tell us about the appropriateness of the term for youth. This section also suggests that there are hints in the literature that the disorder has its roots in childhood, but there is insufficient evidence at this time to firmly use the term—with all its traditional correlates (e.g., poor treatment prognosis, absence of nervousness)— in child and adolescent forensic settings. Third, we examine the structural stability and validity of the psychopathy measures. This section is the most extensive section of the chapter because it is imperative that researchers and clinicians alike understand the current state of knowledge on the topic if they are to apply the concept of child psychopathy in forensic settings. Each of these sections is discussed to help researchers and clinicians understand what can be said about the child psychopathy concept without stepping outside of the bounds of science. Fourth, we offer specific clinical recommendations for using the concept of psychopathy in forensic practice. Finally, we provide a case example, which is also intended to help illustrate the proper use of the concept in forensic settings. Psychopathy in Youth and its Differentiation From DSM-IV Disruptive Disorders Psychopathy in children and adolescents is thought to look much like it does in adulthood (e.g., Lynam & Gudonis, 2006). Specifically, although there is some debate about the appropriateness of some of the items as well as some need to specify developmental

Assessing Child and Adolescent Psychopathy

349

considerations for each of the items (Salekin & Frick, 2005; Salekin, Rogers, & Machin, 2001; Schrum & Salekin, 2006; Vincent, 2002), psychopathy in youth is thought to be composed of interpersonal, affective, behavioral, and antisocial characteristics, as it is in adulthood (Forth et al., 2003; Frick & Hare, 2001; Lynam, 1997; Salekin et al., 2001). Within the interpersonal characteristics, psychopathic youth are thought to be glib, superficial, manipulative, and intelligent. Affective characteristics include lack of empathy, callousness, and a lack of remorse. Behavioral characteristics include sensation seeking, irresponsible behavior, and an inability to plan. Antisocial characteristics include criminal versatility, and criminal conduct and moral transgressions. Because many of the characteristics described above are personality features, clinicians have, on the one hand, been reluctant to use the term psychopathy given that youth are under continual development and they may undergo character change over the formative years of their lives. On the other hand, many researchers believe that temperament and personality evidence some stability and can be identified early on, and to the extent that these traits manifest themselves early in the developmental trajectory, the concept is thought to be important in order to shed further light on child and adolescent offenders. The notion of applying psychopathy to child and adolescent samples as well as grappling with its developmental appropriateness is not altogether new. Researchers and clinicians have considered the existence of psychopathy in children for over half a century (Salekin & Frick, 2005). Some important insights can be gleaned from examining this early literature. For instance, Cleckley noted the possibility of child psychopathy in the early 1940s but also delineated his concern regarding the possibility of misclassifications due to developmental factors. Karpman (1949) organized two consecutive round table discussions to examine the possibility of the existence of psychopathy in children and adolescents. Much of the theoretical exchange centered on whether the disorder was biologically or environmentally determined and whether the syndrome was treatable—two issues that are still currently debated today. Later, the McCords (1964) examined the concept of psychopathy in children and adolescents and determined that it was rarer than that of Conduct Disorder (CD). The McCords also devised a treatment program for the condition and examined its effectiveness. Finally, Quay (1964) conducted one of the first factor analytic studies to show that symptoms of disruptive behavior youth separated into at least two clusters, one of which he considered to resemble psychopathy. Despite this remarkable start to the study of psychopathy in youthful populations, research in the ensuing decades was infrequent (Salekin & Frick, 2005). It wasn’t until the early 1990s that interest in child and adolescent psychopathy was revitalized when Frick (Frick et al., 1994) and Lynam (1997) attempted to systematically measure the concept in youth. Research in the early 1990s (e.g., Frick et al., 1994), like the research before it (Quay, 1965), claimed that Conduct Disorder (CD) was a heterogeneous class and suggested that psychopathy may be an important disorder to consider in youth because factor analytic work continued to demonstrate that the syndrome was composed of symptom compositions that extended the DSM-IV descriptor sets for disruptive behavior disorders (DBD; Conduct Disorder [CD], Oppositional Defiant Disorder [ODD], and Attention Deficit Hyperactivity Disorder [ADHD]). These early factor analytic studies (e.g., Frick et al., 1994) have since been replicated with confirmatory

350

Randall T. Salekin and Sara A. Debus

factor analytic work (Jones, Cauffman, Miller, & Mulvey, 2006; Neumann, Kosson, Forth, & Hare, 2006; Salekin, Brannen, Zalot, Leistico, & Neumann, 2006) suggesting that there are basic descriptive differences between the DBDs and psychopathy. To elaborate on this above mentioned point, CD is defined as serious violation of the rules, but does not take into consideration personality or motivational features to the same degree.1 ODD is defined as oppositional attitudes and behaviors, and although it may have some links to psychopathy, it does not examine factors such as affective deficits. ADHD is defined as either hyperactivity or attention problems, or both, but, again, ADHD focuses to a large extent on the child’s behavior, and does not address interpersonal and affective features thought to underpin psychopathy. Beyond descriptive level differences, there are conceptual differences between psychopathy and the disruptive behavior disorders of the DSM-IV. Kazdin (1997) suggested that the difference between conduct problems and psychopathy has a great deal to do with interpersonal, affective and possibly motivational considerations. These important conceptual differences have to some extent been reflected in research suggesting that psychopathy differs from CD and other conduct problems on important factors such as severity of offending, type of aggressive behavior exhibited (e.g., reactive versus proactive aggression), social skills (Cleckley, 1941; Quay, 1964, 1986, 1987), and intellectual (Loney, Frick, Ellis, & McCoy, 1998; Salekin, Neumann, Leistico, & Zalot, 2004) and emotional functioning. These important differences could help to explain some of the heterogeneity in CD.2 Greater partitioning of the CD construct might help to improve the predictive utility of CD, which has been a concern in the past, and better inform treatment planning for CD subtypes. It should be noted that Moffitt’s (1993) seminal article and important taxonomy has helped to reduce the heterogeneity of CD and improved some of the predictive utility of the concept by introducing a “life-course persistent” and “adolescent-limited” model of antisocial behavior. Despite the importance of this model, there continues to be concern that psychopathy, as a classification scheme, is not easily accommodated within Moffitt’s framework and that the personality features of psychopathy might further our understanding of conduct problem youth. Thus, a CD subtype that captures interpersonal, affective, and motivational factors could offer a step forward in understanding conduct problem youth (Frick, 1998, 2002; Hinshaw, Lahey, & Hart, 1993; Kazdin, 1997; Lynam, 1998, 2002a). Some have argued that Cleckley’s model of psychopathy might be one diagnostic approach that would allow for greater specificity for identifying a specific class of conduct problem youth. In Table 14.1, we provide the defining features of psychopathy, CD and ODD. Although the above section provides a description of psychopathy, as well as delineates how psychopathy is differentiated from the DBDs, the next important question for researchers and clinicians is to determine when the disorder starts and when it can be detected with current psychometric technology. In the section below, we discuss theory and some empirical evidence from developmental psychology to suggest that the disorder may begin early in development. Although there is quite a large body of highly relevant developmental literature on the topic (e.g., empathy development, conscience development, and other related research areas) to suggest that psychopathy may have its roots in childhood, there is less in the way of research that examines psychopathy more specifically throughout the lifespan. For these reasons,

Assessing Child and Adolescent Psychopathy

351

TABLE 14.1 Criteria for Oppositional Defiant Disorder (ODD), Conduct Disorder (CD), and Psychopathy ODD 1. Often loses temper 2. Often argues with adults 3. Often actively defies or refuses to comply with adults’ requests or rules 4. Often deliberately annoys people 5. Often blames others for his or her mistakes 6. Is often touchy or easily annoyed 7. Is often angry and resentful 8. Is often spiteful or vindictive

CD

Cleckley Psychopath

1. Often bullies, threatens, and intimidates 2. Often initiates physical fights 3. Has used a weapon that can cause serious physical harm to others 4. Has been physically cruel to people 5. Has been physically cruel to animals 6. Has stolen while confronting a victim 7. Has forced someone into sexual activity 8. Has deliberately engaged in fire-setting experience with the intention of causing serious damage 9. Has deliberately destroyed property 10. Has broken into a house, building, car 11. Often lies to obtain goods or favors or to avoid obligations 12. Has stolen items of nontrivial value w/o confronting the victim 13. Often stays out at night despite parental prohibitions 14. Has run away from home overnight at least twice while living in parental or parental surrogate home 15. Is often truant from school

1. Superficial charm and good intelligence 2. Absence of delusions and irrational thinking 3. Absence of nervousness 4. Unreliable 5. Untruthful and insincere 6. Lack of remorse or shame 7. Inadequately motivated antisocial behavior 8. Poor judgment/failure to learn from experience 9. Pathological egocentricity and incapacity for love 10. General poverty of affective reactions 11. Specific loss of insight 12. Unresponsive to interpersonal relations 13. Fantastic and uninviting behavior 14. Suicide rarely carried out 15. Sex life impersonal, trivial, poorly integrated 16. Failure to follow a life plan

we suggest that clinicians be very cautious with their use of the construct in forensic settings. We return to this issue at a later point in the chapter.

Development of Psychopathy From An Early Age: What Do We Know? Although psychopathy has been considered as a possible diagnosis in youth for some time now, its development from an early age is not well understood. Salekin (2006) reviewed developmental literature related to the topic of psychopathy and showed that there exists some indirect theory and evidence to suggest that the disorder may manifest itself early in the developmental process. Hints to the possible existence of

352

Randall T. Salekin and Sara A. Debus

psychopathy come from developmental research on related topics such as emotion, empathy development, conscience development, and temperament. We discuss briefly some of this research in order to examine whether the disorder could, theoretically, begin early in the development of children and adolescence. We make several points based on developmental literature to support this supposition. There is a well-spring of developmental information that could lead to important etiological theories to explain the development of psychopathy. These etiological keys might very well open doors to a better understanding of the development of psychopathy from an early age as well as fuel the development of prevention and intervention programs. The relevant developmental literature is vast, and it is beyond the scope of this chapter to comprehensively review. However, we highlight several important research findings to demonstrate that it is conceivable that the disorder could initiate in childhood. First, there is considerable research to suggest that basic emotions are present from the earliest days of life (Izard, 1977; Izard & Harris, 1995; Plutchik, 1980). Thus, as Johnstone and Cooke (2004) note, the capability to assess emotion and perhaps even psychopathy- related symptoms such as shallow affect, sensation seeking, and emotional responsiveness may be possible from an early age. Second, some evidence suggests that conscience development and the internalization of societal values occurs very early in the toddler years (Kochanska, 1991, 1993). Several researchers have also highlighted the importance of early social referencing, during which mothers and young children negotiate affective meanings of acts of conduct. Relatedly, Barret and Campos (1987) proposed that social referencing endows events with social significance, including emotional marking of acts that parents consider undesirable or forbidden. In addition, research has shown that early social referencing is essential in establishing initial prohibitions against inappropriate acts (Emde, Biringen, Clyman, & Oppenheim, 1991). Research by Emde et al. (1991) and others has indicated that parental practices can either facilitate or undermine early elements of internalization of conscience, such as awareness of standards, the development of the self, early social emotions, and emerging self-regulation. Developmental psychology has also shown that by 18 months of age the cognitive prerequisites for emotions such as perspective-taking and differentiation between self and other are well established, and indices of empathic responding have been recorded even in this early developmental phase, with youth showing concern and compassion for others as well as moral sensitivity to the desires and needs of others (Dunn, 1987; Eisenberg & Mussen, 1989; Hann, Aerts, & Cooper, 1987; Johnstone & Cooke, 2004; Radke-Yarrow & Zahn-Waxler, 1984; Zahn-Waxler & Radke-Yarrow, 1990; Zahn-Waxler, Radke-Yarrow, Wagner, & Chapman, 1992). Other research has shown that although lying is experimented with in adolescence, chronic lying is a rare occurrence, and chronic lying is predictive of delinquency (Stouthamer-Loeber & Loeber, 1986). Further evidence for the early development of psychopathy can be derived from the research on temperament. Temperament may act to moderate the child’s perception and acceptance of the parental messages (Salekin & Avereh, in press). In particular, the temperamental dimensions of fearfulness, anxiety, and inhibitory control have been linked to the regulation of moral conduct and moral emotions (Kochanska, 1993). Thus, taken together these findings suggest that the development of the disorder might begin early in childhood in part due to genetics (Larsson, Andershed, & Lichenstein, 2006;

Assessing Child and Adolescent Psychopathy

353

Viding, Blair, Moffitt, & Plomin, 2004) but also the manner in which the child interacts with the environment (see also Lykken, 1995). Although the above section provides a brief description of the developmental literature which suggests that the syndrome may initiate early in childhood and adolescence, much more research is needed on the topic before firm conclusions can be drawn that it is, in fact, psychopathy that is being evidenced in childhood and/or adolescence. Specifically, clinical or clinical forensic questions about the onset of the disorder and the stability of the disorder from childhood to adulthood cannot yet be adequately addressed until research is conducted that: (a) determines the earliest at which psychopathic characteristics manifest themselves, (b) examines the developmental trajectories of psychopathy throughout childhood and adolescence, and (c) addresses the continuity between childhood psychopathy and adult psychopathy (see Kotler & McMahon, 2005). Moreover, there needs to be greater psychopathy integration between the developmental research on empathy development, conscience development, and research on the development of psychopathy. These research endeavors are likely to take some time to accomplish but such research efforts are necessary before we are able to shed light on the topic of onset and continuity. Furthermore, such research efforts are necessary before we can use the term in forensic settings and be sure that it is in fact psychopathy—a disorder originally delineated by Cleckley (1941) to describe a condition: (a) with an enduring course, (b) responsible for criminal behavior and/or moral transgressions across the life-span, and (c) recalcitrant to treatment.3 For this reason, although science is pointing toward the development of the disorder from an early age, much more data is needed that follows youth across the lifespan to examine the onset and potential offset of symptoms (see Klaver, 2006). Research is also needed to determine which factors maintain, amplify, and/or protect against the development of the disorder and thus provide information about the developmental trajectories for youth considered to be at risk for psychopathy. Without this data, we do not have adequate information on the psychopathy concept as it may occur in children. Rather, what we have are two isolated pools of research that examine: (a) the nomological net that surrounds adult psychopathy and (b) the nomological net that surrounds child and adolescent psychopathy. These primarily single-time point investigations may provide partial support for the construct of psychopathy in children and adolescents, but they do not provide the chief information needed to allow for clinicians to firmly utilize the term psychopathy in forensic practice. Because this data is very important to forensic evaluations, the following sections examine what we currently know about the concept of psychopathy in children and adolescents. Fortunately, some longitudinal studies are emerging in this area, and we review this longitudinal research at a later point in this chapter. Prior to covering the construct validity and stability research, we first briefly discuss several commonly researched child and adolescent psychopathy measures that will be referred to throughout the chapter. Measurement of Psychopathy in Youth At present, a variety of measures on the concept of psychopathy have been developed. We cover three of the most popular measures derived from the PCL-R (Antisocial Process Screening Device [APSD], Psychopathy Checklist-Youth Version [PCL:YV],

354

Randall T. Salekin and Sara A. Debus

and the Child Psychopathy Scale [CPS]). We also describe the Youth Psychopathic Traits Inventory (YPI), and two Millon Adolescent Clinical Inventory (MACI) content scales (Murrie & Cornell, 2002; Salekin et al., 2003) intended to assess psychopathy. It should be recognized that a variety of measures exist on the concept and that research in this area is proliferating. As such, we are not able to cover all measures. For instance, there are several content scales on the MMPI-A (e.g., Pd scale) or the California Personality Inventory (CPI-So scale) that might be used to assess psychopathy in youthful populations. However, because of the scope of this chapter, they will not be covered here. Rather, we focus on measures that are PCL-R based or adhere to the Cleckley model. Antisocial Process Screening Device (APSD; Frick & Hare, 2001). The APSD is a measure intended to screen for psychopathic traits in children. The APSD has parent, teacher, and self-report formats. The APSD has 20 items, based on Hare’s model of psychopathy, which are scored on a three-point scale with the following response options: 0 = not at all true, 1 = sometimes true, 2 = definitely true. However, not all Hare PCL-R items were included in this measure such as “parasitic lifestyle,” “promiscuous sexual behavior,” “many short marital relationships,” and “revocation of conditional release.” In place of these items, the APSD supplants items thought to be more developmentally appropriate (e.g., “keeps same friends,” and “is concerned about school work”). The APSD has been shown to have good psychometric properties with generally high levels of reliability and construct validity (Frick & Marsee, 2006; Salekin, 2006). Because we will examine reliability and validity more generally later in this chapter, we do not cover this material in detail here. Child Psychopathy Scale (CPS; Lynam, 1997). The CPS is a psychopathy assessment tool with 41 items originally derived from the PCL-R model using items from the Child Behavior Checklist (CBCL; Achenbach, 1991), and the Common-Language Q-Sort (CCQ; Caspi et al., 1992). There is a parent report and self-report version. Using descriptions of PCL-R items previously collected from caregivers on the Child Behavior Checklist (CBCL; Achenbach, 1991) and the Common-Language Q-Sort (CCQ; Caspi et al., 1992), the CPS was developed. A total of 41 items were used to parallel contemporary models of psychopathy. According to Lynam et al. (2005), a revision of the CPS was undertaken in order to: (a) simplify complex items and (b) increase the reliability and validity of several items which were not optimally operationalized in the original version. Additionally, items measuring antisocial behavior were removed and replaced with items designed to assess boredom susceptibility. Thus, the revised CPS assesses 13 of the 20 PCL-R items (glibness, untruthfulness, boredom susceptibility, manipulation, lack of guilt, poverty of affect, callousness, parasitic lifestyle, behavioral dyscontrol, lack of planning, impulsiveness, unreliability, and failure to accept responsibility). Salekin et al. (2005) rationally developed three scales for the CPS, based on the Cooke and Michie (2001) model. Factor 1 (Arrogant and Deceitful Interpersonal Style) comprises the following items: glibness, grandiosity, untruthfulness, and manipulation. Factor 2 (Deficient Affective Experience) comprises lack of guilt, poverty of affect, callousness, and failure to accept responsibility. Factor 3 (Irresponsible and Impulsive Behavior) comprises parasitic lifestyle, boredom susceptibility, impulsiveness, lack of planning, and unreliability.

Assessing Child and Adolescent Psychopathy

355

Psychopathy Checklist–Youth Version (PCL-YV; Forth, Kosson, & Hare, 2003). The PCL:YV is a 20-item rating scale designed for the assessment of psychopathy-like characteristics in youth. The items are scored on the basis of information from a semistructured interview and file review. The PCL:YV has modified item descriptions but has retained essentially the same 20 items that appear on the adult measure (PCL-R; Hare, 1991). These modifications are intended to take into consideration adolescent life experiences with an increased emphasis on peer, family, and school adjustment (see Forth & Burke, 1998). For example, the PCL-R item “Many Short-Term Marital Relationships” was replaced with “Unstable Interpersonal Relationships.” In addition, PCL:R item “Superficial Charm” was replaced with “Impression Management.” The PCL-YV is scored on a three-point scale with 0 indicating the characteristic is consistently absent, 1 indicating the characteristic is inconsistently present, and 2 indicating the characteristic is consistently present. What is unique about the rating system is that judgments require the integration of information provided by self-report, collateral sources, and direct observation of the youth’s presentation. The PCL:YV is also noted to be interpretable from three- and four-factor models. The three-factor model includes the facets Arrogant and Deceitful Interpersonal Style (ADI), Deficient Affective Experience (DAE), and Irresponsible and Impulsive Behavior (IIB). The four-factor model adds antisocial behaviors. Youth Psychopathic Traits Inventory (YPI; Andershed, Kerr, Stattin, & Levander, 2002). The YPI is a recently developed self-report measure that has items phrased in socially desirable ways. The YPI has 50 items with four response options ranging from “does not apply at all” to “applies very well.” The YPI consists of 10 subscales including: (1) dishonest charm, (2) grandiosity, (3) lying, (4) manipulation, (5) callousness, (6) unemotionality, (7) remorselessness, (8) impulsiveness, (9) thrill-seeking, and (10) irresponsibility. Developed for youth 12 years of age and older, the test takes approximately 15 minutes to complete. The YPI has performed impressively in terms of its internal reliability, test-retest reliability, and predictive validity. Specifically, the YPI is predictive of a range of deviant behaviors and institutional infractions (Larsson et al., 2006; Skeem & Cauffman, 2003). Millon Adolescent Clinical Inventory–Psychopathy Scales. This personality inventory is designed for examining a broad range of psychopathology and takes approximately 1 hr to complete. Three studies assessing adolescent psychopathy have been conducted with this measure. The Murrie-Cornell Psychopathy Scale (MC-P) is a 20-item self-report measure drawn from the MACI (Millon, 1993) and exhibiting a two factor structure. The Psychopathy Scale-16 (P-16; Salekin, Ziegler, Larrea, Anthony, & Bennett, 2003) is also drawn from the MACI items but has a three-factor structure. Approximate time to complete both measures when not embedded in the broader MACI measure is 5–10 min. Internal consistency reliability for the total score has been good (alpha = .86). In the Murrie and Cornell (2002) study, their psychopathy scale (the MC-P) was superior to the APSD in terms of diagnostic efficacy using the PCL:YV as the gold standard with an area under the curve (AUC) =.76 and correlated moderately with the PCL:YV (r = .49). In the second study (Salekin et al., 2003), a new scale was designed based, in part, on Cooke and Michie’s model of psychopathy, which separates the first factor into two components. However, this scale also

356

Randall T. Salekin and Sara A. Debus

includes antisocial items that are not part of the Cooke and Michie (2001) model for psychopathy but do fit Hare’s (2003) model. Although preliminary research is promising for these scales, much more research is needed with both scales, particularly if they are to be used in forensic practice. In the next section, we broadly discuss the current state of knowledge on child and adolescent psychopathy. This section of the chapter is critical to consider when applying the concept in clinical forensic settings.

Current State of Knowledge on Child and Adolescent Psychopathy Although there exists some theory and empirical research for early onset of the disorder, as well as research to show the ability to index child psychopathy-like characteristics, much research is needed on the concept across time. This type of research is imperative because researchers have argued that many of the elements of child and adolescent psychopathy are part of normal adolescent development (e.g., egocentricity) and, as such, we cannot be certain that the child psychopathy measures are actually tapping psychopathy. Some researchers have noted that adolescent psychopathy measures have been downwardly extended from adulthood with relatively few developmental considerations (see Kotler & McMahon, 2005) or that they do not involve important bottom–up considerations (see Salekin et al., 2001). We do not critically evaluate the psychopathy measures for the extent to which they incorporate important developmental considerations or bottom–up research efforts. Instead, we examine the construct validity of these psychopathy measures as they currently exist. Nonetheless, we acknowledge, as did Kotler and McMahon (2005), that further research efforts are needed to examine the developmental sensitivity of each of the measures being employed in research and practice. The following section builds on previous reviews on the topic of child and adolescent psychopathy (Forth & Burke, 1998; Frick, 1998, 2002; Hart, Watt, & Vincent, 2002; Salekin, 2006; Vincent & Hart, 2002). It is critical to evaluate the structure and validity of the measures if they are to be used in forensic practice, even for short term prediction. By examining the psychometric properties of the psychopathy measures systematically and comprehensively, concerns as to whether the cardinal symptoms of psychopathy are applicable to this youthful population can be partially addressed. Also, it is important to examine what is currently known about the concept of psychopathy in youth with respect to the nomological net that surrounds the disorder. We start by examining the reliability of the construct to determine if there exists structural stability and agreement across raters. We then turn to more general construct validity data on the child and adolescent psychopathy concept.

Scale Homogeneity: Internal Consistency of Measures If psychopathy is to be used in clinical or clinical forensic practice, then it should be a reliable concept. Various types of reliability in youth psychopathy measures, including internal consistency, inter-rater reliability, and test–retest reliability are generally supportive of the construct of psychopathy in children and adolescents.

Assessing Child and Adolescent Psychopathy

357

Multiple measures of psychopathic features designed for younger populations have shown satisfactory internal consistency at both the factor structure level and the total score level. In addition, studies have shown that there is satisfactory reliability for the PCL:YV total and factor level scales. For the purpose of examining scale homogeneity, we will discuss total, as well as two-, three-, and four-factor alpha coefficients (α). In order to facilitate the discussion of reliability, we briefly describe the various factors and factor structures for psychopathy. However, we cover the factor structure models in greater detail at a later point in this chapter. Originally, a two-factor model for psychopathy was proposed (Harpur, Hare, & Hakstian, 1989). In the two-factor model, Factor one (F1) was labeled Interpersonal/ Affective traits and Factor two (F2) was labeled Socially Deviant Lifestyle. Cooke and Michie (2001) proposed a three-factor model. This model split the traditional F1 into two factors: interpersonal and affective. With respect to traditional F2, Cooke and Michie (2001) dropped the antisocial items. Hare recently reincorporated the antisocial items to develop a four-factor model that is virtually identical to the Cooke and Michie (2001) three-factor model, although he added a fourth factor of antisocial items. Two- and three-factor models also generally describe the APSD factors, although the factors are titled Callous/Unemotional and Impulsivity/Conduct Problems for the two-factor model and Narcissism, Callous-Unemotional Traits, and Irresponsible Behavior for the three-factor model. A four-factor model of the APSD has not been proposed partially because the APSD does not incorporate antisocial items beyond risky behavior, which could include antisocial behavior. Considerable data exists on the scale homogeneity of psychopathy. Across 14 studies, internal consistency alpha coefficients for the PCL:YV total score ranged from .72–.90. Another study using only file information and no interview found an internal consistency alpha coefficient of .92. For the traditional two-factor model, internal reliability estimates range from .64–.90 for F1 and range from .45–.90 for F2. In the three-factor model, the first factor is labeled Arrogant/Deceitful Interpersonal Style (ADI), the second factor is labeled Deficient Affective Experience (DAE), and the third factor is labeled Impulsive/Irresponsible Behavioral Style (IIB). Alpha coefficients range from .52–.72 for ADI, .56–.69 for DAE, and from .22–.68 for Factor IIB. Spain, Douglas, Poythress, and Epstein (2004) utilized the four-factor model and reported alpha coefficients of .53, .54, .42, and .51 for Factors 1, 2, 3, and 4, respectively on the PCL:YV (see Table 14.2). Across ten studies, the internal consistency (i.e., alpha coefficients) for the total score of the self-report version of the APSD ranged from .62–.84. One study (Frick, Kimonis, Dandreaux, & Farrell, 2003) found the alpha coefficient for the teacher version of the APSD to be .92. This same study found internal reliability estimates to range from .86–.89 for the parent version of the APSD across four time points. Other studies looking at the parent version found the internal consistency to range from α = .84–.88 (Falkenbach, Poythress, & Heide, 2003; Murrie, Cornell, Kaplan, McConville, & Levy-Elkon, 2004). The APSD also has a debated factor structure. Initially, the developers proposed a two-factor structure with a Callous/Unemotional Traits Factor and an Impulsive/Conduct Problems Factor. In order to simplify, the different versions of the APSD (i.e., parent report, self-report, teacher report) were combined for the following internal reliability estimates. The Callous/Unemotional

358

TABLE 14.2

Randall T. Salekin and Sara A. Debus

Scale Homogeneity of Psychopathy Scales

Psychopathy Scale

Total

APSD self report Two-factor model Three-factor model APSD parent report Two-factor model Three-factor model APSD teacher report APSD staff report CPS self report Two-factor model Three-factor model CPS parent report PCL-YV Two-factor model Three-factor model Four-factor model Millon P-16 Millon MC-P YPI

.766

F1

F2

F3

.673 .634

.573 .540

.596

.720 .743 .820

.560 .805 .900

.708 .830

685 .680 .850

.695 .675 .760

.853 .610 .530 .620 .590 .883

.823 .640 .540 .630 .560 .693

F4

.872

.920 .880 .830

.910 .815

.860 .840 .907

.760

.580 .420 .560 .510 .807

.510

N 9 3 8 2 1 1 1 1 4 2 2 2 13 3 3 1 1 1 3

Note. N is the number of studies used to compute the estimate. The following studies were used for this table: Andershed, Kerr, Stattin, & Levander, (2002). Brandt, Kennedy, Patrick, & Curtin, (1997). Campbell, Porter, & Santor, (2004). Corrado, Vincent, Hart, & Cohen, (2004). Dolan, & Rennie, (2006). Falkenbach, Poythress, & Heide, (2003). Forth, Hart, & Hare, (1990). Frick, Kimonis, Dandreaux, & Farrell, (2003). Gretton, McBride, Hare, O’Shaughnessy, & Kumka, (2001). Kosson, Cyterski, Steuerwald, Neumann, & Walker–Matthews, (2002). Lee, Vincent, Hart, & Corrado, (2003). Lynam, Caspi, Moffitt, Raine, Loeber, & Stouthamer–Loeber, (2005). Murrie, Cornell, Kaplan, McConville, & Levy–Elkon, (2004). O’Neill, Lidz, & Heilbrun, (2003). Poythress, Dembo, Wareham, & Greenbaum, (2006). Salekin, Leistico, Trobst, Schrum, & Lochman, (2005). Spain, Douglas, Poythress, & Epstein, (2004). Vitacco, Rogers, & Neumann, (2003). Vitale, Newman, Bates, Goodnight, Dodge, & Pettit, (2005).

Factor αs ranged from .39–.73, and the Impulsive/Conduct Problems Factor had αs that ranged from .57–84. The three- factor model describes the factors as the following: Narcissism, Callous/Unemotional Traits, and Impulsivity. Studies have shown the Narcissism factor to have αs ranging from .55–.90, the Callous/Unemotional Traits factor to have αs ranging from .45–.82, and the Impulsivity factor to have αs ranging from .53–.83. Two recent studies evidenced internal reliability estimates (α) for the total score of the parent-report version of the CPS of .90 and .91 (Falkenbach et al., 2003; Lynam, 1997). The child-report version of the CPS had αs ranging from .77–.88. The CPS does not have an empirically derived factor structure, but researchers have proposed both two- and three-factor models. The two-factor model is identical to that of the PCL:YV with Factor 1 representing Interpersonal/Affective traits and Factor 2 representing Socially Deviant Lifestyle. Factor 1 internal reliability estimates range from .25–.85 and Factor 2 internal reliability estimates range from .36–.75 for the parent-report version of the CPS. For the child-report version of the CPS, total score αs range from .77–.88. Factor 1 internal reliability estimates range from .14–.68 and Factor 2 internal reliability estimates range from .21–.66 for the two-factor model. Spain et al. (2004) and Salekin, Leistico, Trobst, Schrum, and Lochman (2005), using

Assessing Child and Adolescent Psychopathy

359

the three-factor model, found Factor 1 (Interpersonal Traits) internal reliabilities of .73 and .63, Factor 2 (Affective Traits) internal reliabilities of .68 and .67, and Factor 3 (Behavioral Traits) internal reliabilities of .71 and .81, respectively. The YPI has demonstrated internal reliability with total score αs ranging from .88–.92 and αs ranging from .84–.91 for Factor 1 (Grandiose/Manipulative), .57–.77 for Factor 2 (Callous/Unemotional), and .78–.82 for Factor 3 (Impulsive/Irresponsible). The Millon Psychopathy measures also were found to show structural stability, with the MC-P showing high αs for its two-factor model. The alphas for the P-16 scale were generally high with a total score alpha of .86 (factor scores .62, .63, .56). Similar alphas were found for the MC-P total score (.82) and egocentricity (.59), antisocial (.56), and Substance Abuse scales (.51) (Salekin et al., 2003) (see Table 14.2). Inter-rater Reliability Youth psychopathy measures have also shown sufficient inter-rater reliability, demonstrating that two raters can achieve relative agreement in identifying and evaluating psychopathic characteristics in children and adolescents (see Table 14.3). The PCL:YV has evidenced a range of intra-class coefficients from .80–.98 on total scores. Average weighted kappas have also ranged from .49–.91. At the factor level, each factor has shown good inter-rater reliability for both the two-factor and three-factor models. For the two-factor model, F1 intra-class correlations (ICCs) range from .75–1.0 and F2 ICCs range from .83–.99. The three-factor model has displayed good inter-rater reliability with ICCs of .77, .84, and .86 for ADI, DAE, and IIB, respectively. In addition, on the Callous/Unemotional scale of the APSD, the average correlation between parent-reported and teacher-reported traits was .38 (Kimonis, Frick, & Barry, 2004). Furthermore, the correlation between informants increased when two teachers rated the child, resulting in a correlation of .54 between the two teacher-reported APSD total scores (Stevens, Charman, & Blair, 2001). Although the inter-rater reliability for the APSD between parent and teacher ratings is generally lower than that of the PCL:YV, there are a number of potential reasons for this. First, there could be real differences in what different individuals see in different settings. Second, there may be a lack of knowledge with respect to teacher and parent understanding of clinical concepts and thus perhaps greater variability in scores (see Table 14.3). The research discussed above shows evidence of moderate-to-strong reliability of the measurement of psychopathic features in younger populations. Across measures and various informants, the assessment of psychopathic characteristics demonstrates internal consistency. Furthermore, on measures using raters other than the youth, inter-rater reliability has also been shown indicating good agreement in the assessment of symptoms. Although the aforementioned section shows that there is reliability for the existing youth psychopathy measures, this does not in and of itself inform researchers and/or clinicians that it is in fact psychopathy that is being measured. Rather, what we know is that if we downwardly extend the adult psychopathy items, the items tend to be reliably assessed in youth. The next chief question is to determine whether the same nomological net surrounds child and adolescent psychopathy. Two steps are necessary before we examine the validity of child and adolescent

360

Randall T. Salekin and Sara A. Debus

TABLE 14.3 APSD CPS PCL-YV MC-P P-16 YPI

Inter-Rater Reliability r

ICC

N

.39 .37 — N/A N/A —

— — .88 N/A N/A —

1 1 14 2 1 1

Note. The inter-rater reliability for APSD is between parents and teachers. The inter-rater reliability for the CPS is between care-giver and self-report. The inter-rater reliability for the PCL-YV is based on two interviewers independently rating an individual. N is the number of studies used to compute the estimate. The following studies were used for this table: Brandt, Kennedy, Patrick, & Curtin, (1997). Campbell, Porter, & Santor, (2004). Catchpole, & Gretton, (2003). Corrado, Vincent, Hart, & Cohen, (2004). Dolan, & Rennie, (2006). Forth, Hart, & Hare, (1990). Gretton, McBride, Hare, O’Shaughnessy, & Kumka, (2001). Gretton et al., 2004; Kosson, Cyterski, Steuerwald, Neumann, & Walker-Matthews, (2002). O’Neill, Lidz, & Heilbrun, (2003). Salekin, Neumann, Leistico, DiCicco, & Duros, (2004) Salekin, Leistico, Trobst, Schrum, & Lochman, (2005). Skeem, & Cauffman, (2003). Spain, Douglas, Poythress, & Epstein, (2004).

psychopathy. First, we review the various factor structures proposed for child psychopathy, as this could be important to understanding child and adolescent psychopathy. Second, we examine the research on the temporal stability of psychopathy. Following these important sections, we turn to addressing the nomological network. Factor Structure For Psychopathy in Youth Traditionally, psychopathy has been viewed as a two-factor concept. In the traditional two-factor model, F1 represented interpersonal and affective characteristics and F2 represented impulsivity and social deviancy. Cooke and Michie (2001) proposed and tested an alternate factor structure for the PCL-R. This factor structure was a hierarchical three-factor model that separated factor one into two factors (interpersonal and deficient affective experience) and dropped the antisocial items from the original F2 resulting in a third factor that was represented by irresponsible and impulsive items alone. Hare (2003) has argued that four factors underpin psychopathy and proposed a two-factor model with four facets. As mentioned, this model is virtually the same as the Cooke and Michie (2001) three-factor model but adds the fourth factor or facet containing antisocial items. Frick et al. (1994) and Forth (1995) conducted early research on the factor structure of psychopathy in children and adolescents, respectively. Specifically, Frick et al. conducted an exploratory factor analysis of parent and teacher ratings of 95 clinicreferred children between the ages of 6 and 13. The authors suggested that, consistent with the literature on adult psychopathy, child psychopathy yielded a parallel factor structure characterized by Impulsive Conduct Problems and Callous-Unemotional features. Differences in opinion exist as to the extent to which this factor structure replicated adult factor structure data for psychopathy (see Vincent & Hart, 2002). Forth (1995) also contended the traditional two-factor model for psychopathy was replicated via exploratory factor analysis in adolescents, although the items that loaded on each factor differed from the traditional model. Brandt et al. (1997), using

Assessing Child and Adolescent Psychopathy

361

confirmatory factor analysis also stated that the two-factor model was a good fit for psychopathy, although as noted by Cooke and Michie (2001), the comparative fit index (CFI) was low at .83, below the standard of .95 or even the more liberal standard of .90. Kosson et al. (2002) tested the factor structure of the PCL:YV via confirmatory factor analysis and were unable to validate either the two- or three- factor structure conclusively among 12–16 year old males on probation. Salekin et al. (2004, 2006) tested the three- and four-factor models in two separate studies. The first was a study that examined the factor structure of psychopathy in relation to intelligence (Salekin, Neumann, Leistico, & Zalot, 2004). The second study more directly tested the factor structure of psychopathy and compared two-, three-, and four-factor models (Salekin, Brannen, Zalot, Leistico, & Neumann, 2006). Both studies reported good fit indices for the three- factor model. The second study showed that three- and four-factor models were justifiable but that the three-factor model produced a better fit to the data and that the fourth factor had a relatively weak loading. Two recent studies have furthered knowledge on the factor structure of psychopathy. Specifically, Jones, Cauffman, Miller, and Mulvey (2006) tested the factor structure for psychopathy in adolescents in a large sample. Their findings extended the results mentioned above by demonstrating a good fit for three- and four-factor models and invariance across race and gender. Finally, Neumann, Kosson, Forth, and Hare (2006) tested the rivaling models and found that two-, three-, and four-factor models fit the data. Salekin et al. (2006) stated that although factor analytic studies could inform the factor structure debate, they could not settle it, in that much of the debate is theoretical in nature. That is, whether antisocial behavior is a consequence of the personality syndrome of psychopathy or one component of the broader disorder depends largely on one’s theoretical perspective. It is important to note, however, that research has shown that much of the predictive power is derived from F2 (see Salekin, Rogers, & Sewell, 1996). Therefore, although some have argued that the three-factor model captures psychopathy more neatly, the inclusion of antisocial items could have implications for risk assessment There are other concerns with the antisocial behavior component being removed based solely on the rationale that the antisocial factor is composed of “behaviors” that are the result of the personality syndrome. That is, the lifestyle factor (IIB) could also be considered “behavior” and thus considered a consequence of interpersonal and affective traits (see Salekin et al., 2006). In relation to the childhood concept of psychopathy, another concern might be whether components of the PCL:YV overlap with DSM disruptive disorders and to what extent this is a concern. That is, if the disorder overlaps to a large extent with the CD, ODD, and ADHD disorders of the DSM, the question arises as to the need for the psychopathy concept. This issue was addressed in the descriptive section of psychopathy in this chapter and is further addressed in greater detail in the validity section of this chapter.

Stability Across Time: Test–Retest Reliability of Psychopathy We have attempted to stress the importance of stability studies in understanding the applicability of the psychopathy concept in youth in this chapter. Although this is an important area of study, it is also a significant shortcoming of research on psychopathy

362

Randall T. Salekin and Sara A. Debus

(Frick et al., 2003). Evidence for the chronicity of psychopathy has been derived almost exclusively from analyses of retrospective data from adults with antisocial personality disorders although the plight of research in this area is changing. In her classic study, Robins (1966, 1978) traced the onset of psychopathic symptoms back to the age of 6–10 years, using case file information from individuals who had been assessed at a child and guidance clinic in St. Louis two decades prior to her discovery of the files. Many of these youth were considered to have sociopathic, delinquent, and conduct problem symptoms at the time of initial assessment. Twenty years after their original assessment at the clinic, Robins embarked on a research endeavor to identify and interview this sample of individuals as adults, and reported that many of these adults continued to have primarily antisocial lifestyles over two decades later in time. One other study has addressed the stability issue in a less direct way. Harpur and Hare (1994) compared the prevalence rates of psychopathy classifications and the mean level of psychopathy traits in six different age subgroups of adult offenders (overall age range of sample = 16–70 years). These authors found that overall rates of psychopathy declined with age, especially after the age of 45. This decline was strong for the impulsive and antisocial features of psychopathy (F2), whereas the average level of interpersonal and affective traits (F1) remained relatively steady across age groups. These findings indicate that the hallmark symptoms of psychopathy tend to be stable over time. It is important to note that this was a cross-sectional study in which variations in psychopathy levels were examined across different-aged cohorts, and thus the study was not a direct test of temporal stability. A small set of studies have tested the temporal stability of psychopathy on relatively short time spans. Specifically, Schroeder, Schroeder, and Hare (1983) reported a stability coefficient of .89 over a 10-month-period. Rutherford, Cacciola, Alterman, McKay, and Cook (1999) reported 2-year stability estimates of .60 in methadone patients. Skeem and Cauffman (2003) examined the test-retest reliability of the PCL:YV and YPI over a 1-month period. The intra-class correlation for the PCL:YV was .66 for the two-factor model and .58 for the three-factor model. For the two-factor model, F1 had an intra-class correlation of .51 and F2 had an intra-class correlation of .74. For the three-factor model, F1 had an intra-class correlation of .55, F2 had an intra-class correlation of .44, and F3 had an intra-class correlation of .45. The intra-class correlation for the total YPI score was .74 with F1 (interpersonal) having an intra-class correlation of .65, F2 (affective) having an intra-class correlation of .68, and F3 (impulsive and irresponsible behavior) having an intra-class correlation of .79. More recently, studies which test the temporal stability of psychopathy, longitudinally, have surfaced. Frick, Kimonis, and colleagues (2003) tested youth on the APSD over four time points, prospectively. The sample consisted of nonreferred children who were in the third, fourth, six, and seventh grades at the time of the first assessment. Assessments included parent- and self-report versions of the APSD. For parent ratings of overall psychopathic traits, stability estimates using intra-class correlation coefficients ranged from .80–.88 across 2–4 years, with a stability estimate of .93 across all four assessments. These coefficients suggest that parent ratings are reasonably consistent across time. Stabilities for individual subscales of the APSD (narcissism, callous unemotional, and impulsivity) were also quite high based on parent report, ranging from .71 to .92.

Assessing Child and Adolescent Psychopathy

363

Cross-informant stability estimates in this study were lower, but still indicated that a considerable amount of variance was consistent across time. For instance, the ICC stability estimates for parent report at time 1 predicting later self-report of psychopathy by the child or adolescent ranged from .65 for the interpersonal (narcissism) scale of the APSD, to .79 each for the total score and impulsivity scale of the APSD (ps < .001). The four-year coefficients were lower but continued to account for significant variance; these ranged from .38 (p < .05) for the interpersonal (narcissism) scale, to .51 (p 30) showed with other diagnoses in this sample were generally very high: alcohol dependence (61%), drug dependence (72%), ADHD (71%), dysthymia (22%), depression (52%), and PTSD (19%). Myers et al. (1995) examined relations among psychopathy as measured by the PCL-R, Axis I and II psychopathology, and delinquent behaviors in 30 psychiatrically hospitalized male and female adolescents. These authors found significant relations among psychopathy, CD, delinquent behaviors, substance abuse, and narcissistic personality disorder. The authors noted that many participants in this sample had multiple personality problems and, aside from age requirements, would have met criteria for many of the personality disorders (i.e., approximately one third of the sample had met criteria for four or more personality disorders). However, this high comorbidity may be, in part, reflective of the setting (i.e., a psychiatric hospital). Salekin, Neumann, Leistico, Zalot, and Duros (2004) examined the construct of psychopathy in 130 adolescent offenders utilizing three psychopathy measures (APSD; PCL:YV; modified version of the Self Report of Psychopathy-II SRP-II) and a wide range of DSM-IV Axis I diagnoses and psychosocial problems (indexed by

368

Randall T. Salekin and Sara A. Debus

the Adolescent Psychopathology Scale; Reynolds, 1998). Pearson product-moment correlations indicated that psychopathy evidenced less comorbidity than did ODD or CD. This evidence for the discriminant validity of the psychopathy construct in youth suggests that it could offer a refinement over existing DSM-IV disruptive behavior disorders in terms of differentiation from other conditions (see also Lahey et al., 2002). However, it is important to note that comorbidity was not absent for the diagnosis of psychopathy in comparison with CD; it merely evidenced lower rates of comorbidity with other conditions than the DSM-IV disruptive behavior disorders. Furthermore, anxiety and depression were evident at higher rates among psychopathic youth than expected based on theory (Cleckley, 1976). Psychopathy and Performance Tasks The adult literature has attempted to link psychopathy to theoretical biological or cognitive deficits. In recent years these models have made their way down to child and adolescent populations (Lynam & Gudonis, 2006). Although the empirical data to support childhood deficit models are in their infancy, a review of the existing literature has suggested primary deficits in three areas: (a) behavioral inhibition or impulsivity, (b) nonverbal emotional processing, and (c) verbal dichotic listening. Although these purported differences are often linked with a specific neurological system (e.g., amydala, orbitofrontal cortex), considerable inferences are required to make these performance task brain dysfunction connections. As such, it is important to note that the genetic, biological, and/or imaging evidence to support such claims are, at present, nonexistent. The following summary is therefore focused primarily on the deficit and its operational definition, with little emphasis on models or theories upon which they are based (Lynam & Gudonis, 2006). A small set of studies have examined the relation between child and adolescent psychopathy and measures of behavioral inhibition or impulsivity. This particular deficit has received some support among adult psychopaths. Two studies have used adaptations of a card playing task developed originally to measure response modulation in adult psychopaths (Newman et al., 1987). This task contains 100 cards whose rate of reward per 10 trials drops from 100% to 10%. Participants must make a decision whether to play another card or whether to quit the task. Previous research has shown that adult psychopaths play more cards than do adult nonpsychopaths. Similar results have been obtained among children (Fisher & Blair, 1998) although in a very small sample of participants (n = 39). Specifically, Fisher and Blair found positive correlations between the number of cards played and total scores on the APSD and scores on the impulsive/conduct problems subscale. In a mixed gender sample (n = 132), O’Brien and Frick (1996) found that nonanxious, psychopathic children played the greatest number of cards. Originally, Lynam (1997) reported that scores on the CPS were not correlated with the number of cards played, but a reanalysis of those data shows a positive correlation among white participants (Lynam & Gudonis, 2006). Two additional studies have examined in juveniles different behavioral tasks designed to assess a reward-dominant response style. Blair et al. (2001) used the Iowa Gambling Task, which consists of four decks of cards that differ from one another in terms of the rewards and punishments accompanying each deck. Two decks are

Assessing Child and Adolescent Psychopathy

369

associated with net rewards, whereas two are associated with net losses; individuals are expected to learn to play from the decks associated with the net rewards. Blair et al. (2001) found that boys with psychopathic tendencies assessed with the APSD made more selections from the disadvantageous decks across time paralleling findings in adult psychopaths (Mitchell et al., 2002). However, these findings were also based on a relatively small sample of 51 boys. Lynam (1998) reported that boys scoring high on the CPS were more likely to choose a smaller, but immediately available, monetary reward over a larger delayed reward. A second set of deficits found within the child literature is deficits in nonverbal emotional processing. This follows directly from adult literature that suggests psychopathic deficits in this domain are due to dysfunction found within neurophysiological systems modulating fear behavior and systems mediating empathy (Blair 1995, 1999; Lynam & Gudonis, 2005). Blair and Coles (2000) examined expression recognition further using faces composed of six different emotional facial expressions (happiness, surprise, fear, sadness, disgust, and anger). Results indicated a significant inverse relation between APSD F1 and the ability to recognize sadness and fearfulness, and a significant inverse correlation between F2 and the ability to recognize fear. Similarly, children with psychopathic tendencies demonstrated deficiencies in noticing sad vocal tones (Stevens et al., 2001) and a sensitivity to sad and fearful emotional expressions (Blair et al., 2001). These findings mirror the selective recognition results found in adults. A final group of deficits noted in research on psychopathy is a discrepancy between psychopathic individuals’ verbal descriptions of themselves and their behavior (Hare, 1993). Raine et al. (1990) investigated this hypothesis with a group of male adolescent offenders using a cluster analysis technique for diagnosing psychopathy. Utilizing a verbal dichotic listening task composed of consonant vowel pairs, the authors found adolescent psychopathic individuals supported previous work by Hare and McPherson (1984) that suggests psychopaths have reduced brain lateralization for verbal material. Loney et al. (2003) examined the performance of 65 adolescent males on an emotional lexical decision task originally used by Williamson et al. (1991) in adult psychopaths. This task requires participants to identify a string of letters as either a word or nonword. The words are equally divided among three emotional valences: positive, negative, and neutral. Differences between speed of recognition for emotional and neutral words provided indices of facilitation for emotional words. Loney et al. found few relations between adolescent psychopathy and facilitation to either positive or negative words. One noteworthy finding was a significant, negative relation between scores on the callous/unemotional subscale of the APSD and facilitation for negative words only after partialling out the impulsive conduct problems subscale of the APSD. Frick et al. (2003) in a sample of 85 nonreferred children did find a negative relation between callous/unemotional traits and facilitation to negative words, but this relation held only among children in the third and fourth grades and not among children from the fifth and sixth grades. These results do not map onto results from the original study conducted in adults by Williamson et al. (1991), which showed psychopaths showed less facilitation to both positive and negative words than did non-psychopaths. These findings are consistent with more recent studies that have found this relation to be less than robust (see Lorenz & Newman, 2002a; 2002b) and potentially dependant on race and handedness, among other things.

370

Randall T. Salekin and Sara A. Debus

In short, with regard to performance tasks, there is not a direct correspondence in the deficits noted to that of adult psychopathy. As others have suggested (Lynam & Gudonis, 2005), this is not necessarily confirming or disconfirming of the psychopathy construct in youth in that many of these deficits may accrue over the course of time through the known use of substances and the snares that psychopathic individuals incur over the course of time. Physical aggression, incarceration, significant life stressors, such as marital problems, financial difficulties, homelessness, and the like may all enhance the likelihood of brain damage that then impairs performance on tasks. On the other hand, these findings might indicate that the disorder does not fully develop until adulthood. Psychopathy and Antisocial Conduct One of the important questions for child and adolescent forensic evaluations is whether these measures offer any valuable predictive information with respect to behaviors that could be costly to society. That is, has the evidence thus far shown that child and adolescent measures of psychopathic traits are significantly associated with a number of variables indicative of delinquent behavior? We do know that psychopathy has been linked to general and violent recidivism in adults (Salekin, Rogers, & Sewell, 1996) and institutional misconduct when psychopathic individuals are captive (Guy, Edens, et al., 2005). Because of psychopathy’s predictive utility, researchers and clinicians have come to rely on the psychopathy concept to make important decisions about sentencing, release and institutional care and restraint. Although some of these decisions are backed by research on adult psychopathy, a recent concern has been the downward extension of psychopathy to youth and the concomitant decisions that can result from a diagnosis of psychopathy at the child or adolescent level. In this section of the chapter, we evaluate the predictive validity of the childhood psychopathy concept. In general, the research thus far has shown that child and adolescent psychopathy is predictive of delinquency (Leistico, Salekin, DeCoster, & Rogers, in press). For instance, psychopathy scores on the PCL:YV were found to be associated with a younger age of first conviction, first drug use, and onset of school misconduct (Corrado, Vincent, Hart, & Cohen, 2004). Furthermore, a number of researchers have found psychopathy scores to be associated with the number of prior convictions and previous violence (Campbell, Porter, & Santor, 2004; Dolan & Rennie, 2006; Salekin, Neumann, Leistico, DiCicco, & Duros, 2004; Vincent, Vitacco, Grisso, & Corrado, 2003) and specifically prior violent criminal behavior (Dolan & Rennie, 2006; Murrie, et al., 2004; Salekin, et al., 2004, Vincent, et al., 2003). In addition, Kimonis, Frick, and Barry (2004) showed that children rated high on conduct problems and callousunemotional traits by their parents and teachers were more likely to associate with a deviant peer group across a 4-year time period. Some researchers have retrospectively examined legal files and correctional records to score individuals on psychopathy measures and then have investigated how these scores relate to recidivism rates. For example, file scored PCL:YVs’ significantly predicted the number of re-arrests 1 year after substance abuse treatment (O’Neill, Lidz, & Heilbrun, 2003). In addition, Catchpole and Gretton (2003) showed PCL:YV

Assessing Child and Adolescent Psychopathy

371

scores determined retrospectively from file information to predict both general and violent recidivism rates for male adolescent violent offenders 1 year after release from a correctional facility. In another study utilizing file information to determine psychopathy scores on the PCL:YV, psychopathic traits were associated with violent and nonviolent recidivism rates over a 7–106 month follow-up period in an adolescent sex offender population (Gretton, McBride, Hare, O’Shaughnessy, & Kumka, 2001). In a purely prospective study (Falkenbach, et al., 2003), psychopathy traits assessed with the APSD and the CPS as reported by 69 adolescents in juvenile diversion programs and their parents were positively associated with program failure and recidivism over a 1-year follow-up period. In addition, Corrado, et al. (2004) found psychopathy scores from the PCL:YV to predict both violent and nonviolent recidivism over a 27-month period. Even in community samples, psychopathy scores tend to predict future behavior. Callous-unemotional traits, measured with the APSD, were found to predict self-reported delinquency across 4 years (Frick, Stickle, Dandreaux, Farrell, & Kimonis, 2005). Research has also shown that the MC-P was nonsignificantly correlated to predictive validity outcomes in a small sample (N = 55) of young offenders. However, a study found adequate predictive validity with criminal records (r = .18, p < .05), clinical records (r = .24, p < .01), violence while incarcerated (r = .29, p < .01), and assault with a weapon (r = .26; Murrie, Cornell, et al., 2004). The revised P-16 was significantly and strongly related to forms of violence and recidivism. Some studies follow up the participants while they are still detained in correctional facilities. In these instances, researchers examine whether psychopathy scores are predictive of institutional infractions and violence. For example, Skeem and Cauffman (2003) found scores on the YPI to be predictive of all institutional infractions, whereas the PCL:YV scores predicted more serious infractions of a violent nature or which required disciplinary action (Dolan & Rennie, 2006). In a residential treatment facility for male adolescent offenders, total psychopathy scores from three different measures—the APSD, CPS, and PCL:YV—were all significantly associated with the rate of institutional infractions and with the rate of violent incidents (Spain et al., 2004). Other studies have also shown the relation between measured psychopathy and institutional violence (Murrie et al., 2004; Hicks, Rogers, & Cashel, 2000). Psychopathy and Treatment Salekin (2002) examined the treatment literature on psychopathy and concluded that there was little to no evidence to demonstrate that psychopathy was an untreatable disorder. In fact, some of the research indicated that psychopathy was a treatable condition and that youth might be the most likely to benefit from treatment. Skeem, Monahan, and Mulvey (2002) generated similar conclusions after conducting a study with civil psychiatric patients. Most recently, Caldwell, Skeem, Salekin, and VanRybroeck (2006) found that treatment of psychopathy reduced antisocial conduct in young offenders. Despite some criticisms to the Salekin (2002) study (Harris & Rice, 2006; Wong & Hare, 2005), these reviews of the literature on psychopathy and treatment resulted in virtually identical conclusions—specifically, there is no evidence that psychopathy is an untreatable syndrome. On balance, the findings thus far indicate that psychopathy may very well be a treatable disorder.

372

Randall T. Salekin and Sara A. Debus

Conclusions In the current chapter, we sought to answer several questions on the development and utility of child and adolescent psychopathy. First, we were interested in examining how the disorder differs from DSM-IV disruptive behavior disorders. Second, we were interested in whether there was theoretical evidence to suggest that the disorder could start early in development. Third, we were interested in the homogeneity and temporal stability of the construct. Finally, we were interested in examining the nomological net that surrounds child and adolescent psychopathy. We reviewed a number of recent studies that suggest psychopathy in children and adolescent looks roughly similar to psychopathy in adults. Similar characteristics are present in these individuals at developmental time points. Additionally, child and adolescent psychopathy predicts antisocial conduct like that of adult psychopathy. Like their adult counterparts, child and adolescent psychopaths tend to be more serious and stable in their offending. They are prone to externalizing disorders but also exhibit some internalizing disorders. Child and adolescent psychopathy is characterized by extremely low levels of Agreeableness and Conscientiousness. Psychopathic youth show processing deficits loosely similar to those found in adults. However, there are also very important dissimilarities. That is, psychopathy in youth does not demonstrate all the same purported neurological deficits, and it does appear to be related to internalizing disorders such as anxiety and depression. Because of these differences, it is difficult to conclude that it is psychopathy that is being evidenced across time. There are important differences that require further investigation. It could be that such differences indicate that the childhood measures are not picking up on the same construct. Alternately, the findings reviewed in this chapter could mean that there are important developmental differences in the disorder as it occurs across time. In sum, these findings roughly replicate those observed in studies using psychopathic concepts with adults—albeit with some important caveats. This leads us to conclude that although the construct of psychopathy in youth is garnering validity, the conceptualization of child psychopathy may not be yet be fully ready for courts—or—its use should be limited. More research is needed, not only on symptomotology and assessment instruments, but also on the efficacy of interventions for this new younger version of psychopathy before the construct can be used appropriately in the legal system. It is also possible that the term psychopathy may have become too stigmatizing to use with children when making legal decisions, unless researchers can help inform the courts and other relevant parties of the most recent correlates of the disorder. Therefore, in this chapter we offer an alternative method for discussing psychopathic characteristics. Specifically, we suggest reporting specific symptoms or using descriptors instead of using the label “psychopath” when assessing risk for a child or adolescent involved in the legal system. Moreover, clinicians should be realistic about what the characteristics mean. Similar to other risk factors, the characteristics of psychopathy provide us with some information about the added risk in an individual who possesses the characteristics and importantly the identification of such factors also might help inform treatment. Undoubtedly, much work remains to be conducted and many issues need to be addressed with respect to the potential usefulness of the psychopathy concept as applied to children

Assessing Child and Adolescent Psychopathy

373

and adolescents. In light of these concerns we suggest the following in assessing and guiding clinicians in ethical practice (see also Vitacco & Vincent, 2006). 1. Reconsider use of the term psychopathy: Time for a new CD nomenclature? A new nomenclature might be indicated until we are more certain about the adolescent psychopathy classification. Of course, clinicians could use “psychopathic features” or “psychopathic-like characteristics” if they deem appropriate so long as they update judges and other relevant personnel on the correlates of the disorder, but it might be even more beneficial to reduce the confusion further. We propose the following label as one option: Conduct Disorder–Callous Unemotional Type (CD-CU) Conduct Disorder– Interpersonal Callousness Type (CD-IC) We propose this alternate classification scheme because the consequences of mislabeling an adolescent as psychopathic are potentially very severe. The problem is that there is limited data tracking the long-term outcome of youths with such diagnoses. Although there exists some data suggesting that 50% of men with antisocial personality disorders have had serious problems in adulthood, some of the studies also suggest that there is substantial change. For instance, Lynam et al.’s (2007) study has added to our understanding of the stability of the disorder, but this study, too, suggests that there is substantive change. In light of the lack of longitudinal data on this topic, we are unable to distinguish between phenotypically psychopathic youth with and without a stable disorder. Thus, at this time being descriptive is probably the best and most ethical manner in which to assess youth. 2. Conduct comprehensive assessments. Although psychopathy represents an important construct at the adult level and is gaining some momentum with adolescents, if the goal is to make predictions about risk for future offending then researchers may want to examine a broader range of factors that might impact the likelihood that a youth is at risk for offending. This might include using measures specifically designed for risk assessment such as the Risk-Sophistication-Treatment Inventory (RST-I; Salekin, 2004), which allows for the assessment of risk, maturity, and other relevant constructs such as treatment needs, or the SAVRY (Borum, Bartel, & Forth, 2006), which examines protective factors, or the YLS, which also examines treatment needs. Given the moderate level of stability in psychopathy scores, there are likely many factors that protect against the development of psychopathy and an assessment of protective factors also seems essential. 3. Highlight emerging research and inform treatment in psychological reports. Diagnostic labels were never intended to harm people, only to help. As such, we recommend that clinicians use the terms or descriptors of psychopathy in youth to inform treatment of CD youth. All reports should include information that highlights the lack of evidence to support conclusions that psychopathic features are untreatable (Caldwell et al., 2006; Salekin, 2002; Skeem et al., 2002). Also, and relatedly, theories that exist to offer accounts of the origins of psychopathy remain thin. No prospective studies have tested core developmental hypotheses derived from these theories. For example, although several theories predict maladaptive transactions with the environment, none have thoroughly examined such transactions. This important point should also be highlighted in reports. All the aforementioned information should be candidly reported in cases in which psychopathy is used in forensic evaluations.

374

Randall T. Salekin and Sara A. Debus

Case Study James, a 15-year-old boy, was brought into juvenile court for violating his probation in a possession of marijuana charge. James had two previous convictions for assault, one conviction for possession of marijuana, and another conviction for vandalism. Both of the assault incidents were initiated by his teasing of other schoolmates. James received the vandalism charge because he was caught breaking windows with a group of friends. James often spent time with this deviant peer group, whom he felt understood him more than most of his peers. With his history of repeated criminal offenses, a juvenile court judge requested that James undertake a series of assessments in an attempt to understand his delinquent behavior. A psychologist administered a battery of tests to James, including a measure of psychopathic features in youth. Through a semistructured interview, the psychologist discovered that James had a long history of behavioral problems, especially while in school and immediately after school. He currently participated in many risky activities, such as using marijuana and other drug use almost daily and promiscuous sexual activity. James scored high on many items assessing psychopathy, including some interpersonal but mostly affective features such as lack of remorse and lack of empathy for his actions. He also had a history of criminal behavior. James appeared to be exhibiting callous and generally unemotional or detached emotions with respect to others. He reported no guilt over the two assault incidents, and it was difficult to detect any guilt in an interview or self-report information about his assaultive incidents, which he attributed to his uncontrollable temper and the weakness of the other boys. James demonstrated no remorse over hurting the two boys, saying he knew they must be weak and that they should not “get in his way.” It is noteworthy that he did not have much difficulty talking about the incident with others in a straight-forward manner. The psychologist decided that James’ problem behavior did not indicate psychopathy per se, but that James had significant Conduct Problems with Callous-Unemotional characteristics (with few interpersonal features). His early onset of behavioral problems were of some concern as well. The psychologist also noted that he was easily bored and distractible in school. His aggressive behavior was according to him due to poor anger control and impulsivity than an instrumental intention to injure. His Callous-Unemotional characteristics appeared to be at least somewhat linked to poor parenting including a lack of monitoring and little nurturance. His diagnosis, based on the information obtained from the assessment, was CD with callous-unemotional characteristics. The psychologist recommended that James receive additional help in school to assist him with his academic problems and improve his school behavior, enroll in an anger management class, and engage him in therapy that worked on his emotional connection to others. It was also recommended that his parents be included in the treatment efforts and that his parents attend classes on appropriate parenting practices. The psychologist also recommended mandated substance abuse treatment and that James become involved in an extracurricular activity of interest in order to incorporate more nondeviant friends into his life. The psychologist noted that there were a number of negative life circumstances for James and also noted that his disorder is treatable, but that it would likely take some time to notice marked improvements.

Notes 1. Originally, the DSM incorporated personality and affective features of the disorder but later the behavioral model for antisocial personality disorder and CD emerged and reduced the criteria to primarily behavioral characteristics. It was thought that by reducing the criteria to be primarily behavioral characteristics that the disorder (also thought to be sociopathy) could be more reliably assessed (Robins, 1966; Cloninger, 1978).

Assessing Child and Adolescent Psychopathy

375

2. CD captures a wide variety of youth: those who experiment with delinquency, those who have conduct problems secondary to depression, those who exhibit conduct problems as a temporary expression of extreme play, those how have conduct problems stemming from impulsivity, those who have conduct disorders stemming from callousness, etc. 3. Although theory and clinical lore has suggested that psychopathy is an untreatable syndrome, there is little empirical evidence to back this contention (see Salekin, 2002).

References Achenbach, T. M. (1991). The derivation of taxonomic constructs: A necessary stage in the development of developmental psychopathology. In D. Cicchetti & S.L. Toth (Eds.), Rochester symposium on developmental psychopathology, Vol. 3: Models and integrations (pp. 43–74). Rochester, New York: University of Rochester Press. Achenbach, T. M. (1995). Diagnosis, assessment, and comorbidity in psychological treatment research. Journal of Abnormal Psychology, 23, 45–65. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision). Washington, DC, American Psychiatric Association, 2000. Andershed, H., Kerr, M., Stattin, H., & Levander, S. (2002). Psychopathic traits in non-referred youths: A new assessment tool: In E. Blaauw, & L. Sheridan (Eds.), Psychopaths: Current International Perspectives (pp. 131–158). The Hague: Elsevier. Barrett, K.C., & Campos, J. J. (1987). Perspectives on emotional development II: A functionalist approach to emotions. In J.D. Osofsky (Ed.), Handbook of Infant Development (pp. 555–578). Oxford, England: John Wiley & Sons. Bauer, D., & Kosson, D. S. (2000, March). Psychopathy in incarcerated females: Prevalence rates and individual differences in cognition, personality and behavior. Paper presented at the American Psychology-Law Society, New Orleans, LA. Biederman, J., Newcorn, J., & Sprich, S. (1991). Comorbidity of attention deficit hyperactivity disorder with conduct, depressive, anxiety, and other disorders. American Journal of Psychiatry, 148, 564–577. Blackburn, R., & Coid, J. (1998). Psychopathy and the dimensions of personality disorders in violent offenders. Personality and Individual Differences, 25, 129–145. Blair, R. J. R. (1995). A cognitive developmental approach to morality: Investigating the psychopath. Cognition, 57, 1–29. Blair, R. J. R. (1999). Responsiveness to distress cues in the child with psychopathic tendencies. Personality and Individual Differences, 27, 135–145. Blair, R. J. R., & Coles, M. (2000). Expression recognition and behavioural problems in early adolescence. Cognitive Development, 15, 421–434. Blair, R. J. R., Colledge, E., Mitchell, D. G. V. (2001). Somatic markers and response reversal: Is there orbitofrontal cortex dysfunction in boys with psychopathic tendencies? Journal of Abnormal Child Psychology, 29, 499–511. Block, J. (1993). Studying personality the long way. In D. Funder, R. Parke, C. TomlinsonKeasy, and K. Widaman (Eds.), In studying lives through time: personality and development (pp. 9–41). Washington, DC: American Psychological Association. Borum, R., Bartel, P., & Forth, A. (2006). Manual for the Structured Assessment of Violence Risk in Youth (SAVRY). Odessa, FL: Psychological Assessment Resources. Brandt, J. R., Kennedy, W. A., Patrick, C. J., & Curtin, J. J. (1997). Assessment of psychopathy in a population of incarcerated adolescent offenders. Psychological Assessment, 9, 429–435.

376

Randall T. Salekin and Sara A. Debus

Brinkley, C. A., Newman, J. P., Widiger, T. A., & Lynam, D. R. (2004). Two approaches to parsing the heterogeneity of psychopathy. Clinical Psychology: Science and Practice, 11, 69–94. Brown, M. M. (2006, February 21). Packed courtroom hears day one of Cody Posey sentencing. Alamogordo Daily-News. Retrieved September 30, 2006, from the World Wide Web: www.prisonpotpourri.com. Caldwell, M. F., Skeem, J. L., Salekin, R. T., & Van Rybroeck, G. (2006). Treatment response of adolescent offenders with psychopathy features: A two year follow-up. Criminal Justice and Behavior, 33, 571–596. Campbell, M. A., Porter, S., & Santor, D. (2004). Psychopathic traits in adolescent offenders: An evaluation of criminal history, clinical, and psychosocial correlates. Behavioral Sciences and the Law, 22, 23–47. Caron, C., & Rutter, M. (1991). Comorbidity in child psychopathology: Concepts, issues, and research strategies. Journal of Child Psychology and Psychiatry, 32, 1063–1080. Catchpole, R. E. H. & Gretton, H. M. (2003). The predictive validity of risk assessment with violent young offenders. Criminal Justice and Behavior, 30, 688–708. Cleckley, H. (1941). The mask of sanity. St Louis, MO: Mosby. Cloninger, C. R. (1978). The antisocial personality. Hospital Practice, 13, 97–106. Cooke, D. J., & Michie, C. M. (2001). Refining the construct of psychopathy: Towards a hierarchical model. Psychological Assessment, 13, 171–188. Corrado, R., Vincent, G., Hart, S., & Cohen, I. (2004). Predictive Validity of the Psychopathy Checklist: Youth Version for General and Violent Recidivism. Behavioral Sciences and Law, 22, 5–22. Costa, P.T., Herbst, J.H., McCrae, R.R., & Siegler, I.C. (2000). Personality at midlife: Stability, intrinsic maturation, and response to life events. Assessment, 7, 365–378. Costa, P. T., & McCrae, R. R. (1988). Personality in adulthood: A six-year longitudinal of selfreports and spouse ratings on the NEO Personality Inventory. Journal of Personality and Social Psychology, 54, 853–863. Costa, P. T., & McCrae, R. R. (1994). Set like plaster? Evidence for the stability of adult personality. In T. Heatherton & J. L. Weinberger (Eds.), Can personality change? (pp. 21–40). Washington, DC: American Psychological Association. Dolan, M. C., & Rennie, C. E. (2006). Reliability and validity of the Psychopathy Checklist: Youth Version in a U.K. sample of conduct disordered boys. Personality and Individual Differences, 40, 65–75. Dunn, J. (1987). The beginnings of moral understanding: Development in the second year. In J. Kagan & S. Lamb (Eds.), The emergence of morality in young children (pp. 91–112). Chicago, IL: University of Chicago Press. Eisenberg, N., & Mussen, P. A. (1989). The roots of prosocial behavior in children. New York: Cambridge University Press. Emde, R. N., Biringen, Z., Clyman, R. B., & Oppenheim, D. (1991). The moral self of infancy: Affective core and procedural knowledge. Developmental Review, 11, 251–270. Epstein, M., Douglas, K., Poythress, N., Spain, S., & Falkenbach, D. (2002, March). A discriminant study of juvenile psychopathy and mental disorders. Paper presented at the conference of the American Psychology-Law Society, Austin, TX. Falkenbach, D. M., Poythress, N. G., & Heide, K. M. (2003). Psychopathic features in a juvenile diversion population: reliability and predictive validity of two self-report measures. Behavioral Sciences and the Law, 21, 787–805. Farrington, D. P. (2005). The importance of child and adolescent psychopathy. Journal of Abnormal Child Psychology, 33, 489–498.

Assessing Child and Adolescent Psychopathy

377

Fisher, L., & Blair, R.J.R. (1998). Cognitive impairment and its relationship to psychopathic tendencies in children with emotional and behavioral difficulties. Journal of Abnormal Psychology, 26, 511–519. Forth, A. E. (1995). Psychopathy in adolescent offenders: Assessment, family background and violence. Forth, A. E., & Burke, H. C. (1998). Psychopathy in adolescence: Assessment, family background, and violence, In D. J. Cooke, A. E. Forth, & R. D. Hare (Eds.), Psychopathy: Theory, research and implications for society (pp. 205–229). Boston, MA: Kluwer. Forth, A. E., Hart, S. D., Hare, R. D. (1990). Assessment of psychopathy in male young offenders. Psychological Assessment, 2, 342–344. Forth, A. E., Kosson, D. S., & Hare, R. D. (1996/2003). The Psychopathy Checklist: Youth Version. Toronto, ON, Canada: Multi-Health Systems. Frick, P. J. (1998). Callous-unemotional traits and conduct problems: Applying the two-factor model of psychopathy to children. In D. J. Cooke, A. E. Forth, and R. D. Hare (Eds.), Psychopathy: Theory, research and implications for society (pp. 161–187). Boston, MA: Kluwer. Frick, P. J. (2002). Juvenile psychopathy from a developmental perspective: Implications for construct development and use in forensic assessments. Law and Human Behavior, 26, 247–253. Frick, P. J. (2006). Developmental pathways to conduct disorder. Child an Adolescent Psychiatric Clinics of North America, 15, 311–331. Frick, P. J., Bodin, S. D., Barry, C. T. (2000). Psychopathic traits and conduct problems in community and clinic-referred samples of children: Further development of the Psychopathy Screening Device. Psychological Assessment, 12, 382–393. Frick, P. J., & Hare, R. D. (2001). Antisocial process screening device. Toronto, ON: MultiHealth Systems. Frick, P. J., Kimonis, E. R., Dandreaux, D. M., Farrell, J. M. (2003). The 4 year stability of psychopathic traits in non-referred youth. Behavioral Sciences and the Law, 21, 713–736. Frick, P. J., Lilienfeld, S. O., Ellis, M., Loney, B., & Silverthorn, P. (1999). The association between anxiety and psychopathy dimensions in children. Journal of Abnormal Child Psychology, 27, 383–392. Frick, P.J., & Marsee, M.A. (2006). Psychopathy and developmental pathways to antisocial behavior in youth. In C.J. Patrick (Ed.), Handbook of psychopathy (pp. 353–374). New York: Guilford Press. Frick, P. J., O’Brien, B. S., Wootton, J. M., & McBurnett, K. (1994). Psychopathy and conduct problems in children. Journal of Abnormal Psychology, 103, 700–707. Frick, P. J., Stickle, T. R., Dandreaux, D. M., Farrell, J. M., & Kimonis, E. R. (2005). Callous-unemotional traits in predicting the severity and stability of conduct problems and delinquency. Journal of Abnormal Child Psychology, 33, 471–487. Fung, M. T., Raine, A., Loeber, R., Lynam, D. R., Steinhauer, S. R., Venables, P. H., StouthamerLoeber, M. (2005). Reduced electrodermal activity in psychopathy-prone adolescents. Journal of Abnormal Psychology, 114, 187–196. Gretton, H. M., McBride, M., Hare, R. D., O’Shaughnessy, R., & Kumka, G. (2001). Psychopathy and recidivism in adolescent sex offenders. Criminal Justice and Behavior, 28, 427–449. Gretton, H. M., Hare, R. D., & Catchpole, R. E. H. (2004). Psychopathy and offending from adolescence to adulthood: A 10-year follow-up. Journal of Consulting and Clinical Psychology, 72, 636–645. Grinberg, E. (2006, February 2). A teenage psychopath?. Court TV News. Retrieved September 30, 2006, from the World Wide Web: www.courttv.com/trials/posey/020206 psychopath_ctv.html.

378

Randall T. Salekin and Sara A. Debus

Guy, L.S., Edens, J.F., Anthony, C., & Douglas, K.S. (2005). Does psychopathy predict institutional misconduct among adults? A meta-analytic investigation. Journal of Consulting and Clinical Psychology, 73, 1056–1064. Haan, N., Aerts, E., & Cooper, B. A. (1987). On moral grounds. New York: New York University Press. Hare, R. D. (2003). The Hare Psychopathy Checklist-Revised (2nd ed). Toronto: Multi-Health Systems. Harpur, T.J., & Hare, R.D. (1994). Assessment of psychopathy as a function of age. Journal of Abnormal Psychology, 103, 604–609. Harpur, T. J., Hare, R. D., & Hakstian, A. R. (1989). Two-factor conceptualization of psychopathy: Construct validity and assessment implications. Psychological Assessment, 1, 6–17. Harris, G. T., & Rice, M. E. (2006). Treatment of psychopathy: A review of empirical findings. In C. J. Patrick (Ed.), Handbook of psychopathy (pp. 555–572). New York: Guilford Press. Hart, S. D., Cox, D., & Hare, R. D. (1995). The Hare Psychopathy Checklist: Screening Version (PCL: SV). Toronto, ON: Multi Health Systems. Hart, S.D., Forth, A.E., Hare, R.D. (1991). The MCMI-II and psychopathy. Journal of Personality Disorders, 5, 318–327. Hart, S. D., & Hare, R. D. (1994). Psychopathy and the Big 5: Correlations between observers’ ratings of normal and pathological personality. Journal of Personality Disorders, 8, 32–40. Hart, S. D., Watt, K. A., & Vincent, G. M. (2002). Commentary on Seagrave and Grisso: Impressions of the state of the art. Law and Human Behavior, 26, 241–245. Hemphill, J. F., & Hare, R. D. (2004). Some misconceptions about the PCL-R and risk assessment: A reply to Gendreau, Goggin, and Smith. Criminal Justice and Behavior, 31, 203–243. Hicks, M. M., Rogers, R., & Cashel, M. (2000). Predictions of violent and total infractions among institutionalized male juvenile offenders. Journal of the American Academy of Psychiatry and the Law, 28, 183–190. Hinshaw, S. P., Lahey, B. B., & Hart, E. L. (1993). Issues of taxonomy and co-morbidity in the development of conduct disorder. Development and Psychopathology, 5, 31–50. Hinshaw, S. P., & Zupan, B. A. (1997). Assessment of antisocial behavior in children and adolescents. In E. J. Mash & R. A. Barkley (Eds.), Child psychopathology (pp. 36–50). New York: Guilford Press. Hoffman, M. L. (1991). Empathy, social cognition and moral action. In W. M. Kurtines, & J. L. Gewirtz (Eds.), Handbook of moral behavior and developmental theory (pp. 275– 301). Mahwah, NJ: Erlbaum. Izard, C. E. (1977). Human emotions. New York: Plenum Press. Izard, C. E., & Harris, P. (1995). Emotional development and developmental psychopathology. In D. Cicchetti & D. J. Cohen (Eds.), Developmental psychopathology, Vol. 2, Risk, disorder, and adaptation (pp. 467–503). New York: Wiley. Jang, K., McCrae, R. R., Angleitner, A., Riemann, R., & Livesley, W. J. (1998). Heritability of facet-level traits in a cross-cultural twin sample: Support for a hierarchical model of personality. Journal of Personality and Social Psychology, 74, 1556–1565. Johnstone, L., & Cooke, D. J. (2004). Psychopathic-like traits in childhood: Conceptual and measurement concerns. Behavioral Sciences and the Law, 22, 103–125. Jones, S., Cauffman, E., Miller, J. D., & Mulvey, E. (2006). Investigating different factor structures of the Psychopathy Checklist: Youth Version: Confirmatory factor analytic findings. Psychological Assessment, 18, 33–48. Kazdin, A. E. (1997). Conduct disorders across the life-span. In S. S. Luthar, J. A. Burack, D. Cicchetti, and J. R. Weisz (Eds.), Developmental psychopathology, perspectives on adjustment, risk, and disorder (pp. 248–272). New York: Cambridge University Press.

Assessing Child and Adolescent Psychopathy

379

Kimonis, E. R., Frick, P. J., & Barry, C. T. (2004). Callous-unemotional traits and delinquent peer affiliation. Journal of Consulting and Clinical Psychology, 72, 956–966. Klaver, J. R. (2006). Age of onset of psychopathic traits in adolescent offenders. Unpublished doctoral dissertation, Simon Fraser University, Burnaby, British Columbia, Canada. Kochanska, G. (1991). Socialization and temperament in the development of guilt and conscience. Child Development, 62, 1379–1392. Kochanska, G. (1993). Toward a synthesis of parental socialization and child temperament in early development of conscience. Child Development, 64, 325–347. Kochanska, G. (1995). Children’s temperament, mother’s discipline, and security of attachment: Multiple pathways to emerging internalization. Child Development, 66, 597–615. Kosson, D. S., Cyterski, T. D., Steuerwald, B. L., Neumann, C. S., & Walker-Matthews, S. (2002). The reliability and validity of the Psychopathy Checklist: Youth Version (PCL: YV) in nonincarcerated adolescent males. Psychological Assessment, 14, 97–109. Kotler, J. S., & McMahon, R. J. (2005). Child psychopathy: Theories, measurement, and relations with the development and persistence of conduct problems. Clinical Child and Family Psychology Review, 8, 291–325. Lahey, B. B. Loeber, R., Burke, J., Rathouz, P. J., & McBurnett, K. (2002). Waxing and waning in concert: Comorbidity of conduct disorder with other disruptive and emotional problems over 7 years among clinic referred boys. Journal of Abnormal Psychology, 111, 556–567. Larsson, H., Andershed, H., & Lichtenstein, P. (2006). A Genetic Factor Explains Most of the Variation in the Psychopathic Personality. Journal of Abnormal Psychology, 115, 221–230. Lee, Z., Vincent, G. M., Hart, S. D., & Corrado, R. R. (2003). The validity of the Antisocial Process Screening Device as a self-report measure of psychopathy in adolescent offenders. Behavioral Sciences and the Law, 21, 771–786. Lestico, A. M. R., Salekin, R. T., DeCoster, J., & Rogers, R. (in press). A large scale metaanalysis relating the Hare measures of psychopathy to antisocial conduct. Law and Human Behavior. Lexcen, F. J., Vincent, G. M., & Grisso, T. (2004). Validity and structure of a self-report measure of youth psychopathy. Behavioral Sciences and the Law, 22, 69–84. Loeber, R., & Keenan, K. (1994). Interaction between conduct disorder and its comorbid conditions: Effects of age and gender. Clinical Psychology Review, 14, 497–523. Loney, B. R., Frick, P. J., Clements, C. B., Ellis, M. L., Kerlin, K. (2003). Callous-Unemotional traits, impulsivity, and emotional processing in adolescents with antisocial behavior problems. Journal of Clinical Child and Adolescent Psychology, 32, 66–80. Loney, B. R., Frick, P. J., Ellis, M. L., & McCoy, M. G. (1998). Intelligence, psychopathy, and antisocial behavior. Journal of Psychopathology and Behavioral Assessment, 20, 231–247. Lorenz, A. R., & Newman, J. P. (2002a). Deficient response modulation and emotion processing in low anxious Caucasian psychopathic offenders: Results from a lexical decision task. Emotion, 2, 91–104. Lorenz, A. R., & Newman, J. P. (2002b). Utilization of emotion cues in male and female offenders with antisocial personality disorder: Results from a lexical decision task. Journal of Abnormal Psychology, 111, 513–516. Lykken, D. T. (1995). The antisocial personalities. Hillsdale, NJ: LEA. Lynam, D. R. (1996). The early identification of chronic offenders: Who is the fledgling psychopath? Psychological Bulletin, 120, 209–234. Lynam, D. R. (1997). Pursuing the psychopath: Capturing the fledgling psychopath in a nomological net. Journal of Abnormal Psychology, 106, 425–438.

380

Randall T. Salekin and Sara A. Debus

Lynam, D. R. (1998). Early identification of the fledgling psychopath: Locating the psychopathic child in the current nomenclature. Journal of Abnormal Psychology, 107, 566–575. Lynam, D. R. (2002a). Fledgling psychopathy: A view from personality theory. Law and Human Behavior, 26, 255–259. Lynam, D. R. (2002b). Psychopathy from the perspective of the five factor model. In P. T. Costa & T. A. Widiger (Eds.), Personality disorders and the five factor model (2nd ed.). Washington, DC: American Psychological Association. Lynam, D. R., Caspi, A., Moffitt, T. E., Loeber, R., & Stouthamer-Loeber, M. (2007). Longitudinal evidence that psychopathy scores in early adolescence predict adult psychopathy. Journal of Abnormal Psychology, 33, 155–165. Lynam, D. R., Caspi, A., Moffitt, T. E., Raine, A., Loeber, R., & Stouthamer-Loeber, M. (2005). Adolescent psychopathy and the Big Five: Results from two samples. Journal of Abnormal Child Psychology, 33, 431–443. Lynam, D. R., & Gudonis, L. (2006). The development of psychopathy. Annual Review of Clinical Psychology, 1, 381–407. Lynam, D. R., Whiteside, S., & Jones, S. (1999). Self-reported psychopathy: A validation study. Journal of Personality Assessment, 73, 110–132. McCord, W., & McCord, J. (1964). The psychopath: An essay on the criminal mind. Oxford, England: D. Van Nostrand. McCrae, R. R., & Costa, P. T., Jr. (1989). The structure of interpersonal traits: Wiggins´ circumplex and the five factor model. Journal of Personality and Social Psychology, 56, 586–595. McCrae, R.R., & Costa, P.T. (1990). Personality in Adulthood. New York: Guilford Press. Mitchell, D. G. V., Colledge, E., Leonard, A., & Blair, R. J. R. (2002). Risky decisions and response reversal: Is there evidence of orbital cortex dysfunction in psychopathic individuals? Neuropsychologia, 40, 2013–2022. Miller, J. D., Lynam, D. R., Widiger, T. A., & Leukefeld, C. (2001). Personality disorders as extreme variants of common personality dimensions: Can the Five Factor model adequately represent psychopathy? Journal of Personality, 69, 253–276. Millon, T. (1993). Millon Adolescent Clinical Inventory. Minneapolis, MN: National Computer Systems. Moffitt, T. E. (1993). Adolescent-limited and life-course persistent antisocial behavior: A developmental Taxonomy. Psychological Review, 100, 674–701. Moffitt, T. E. (2003). Life course persistent and adolescent limited antisocial behavior: A ten year research review and a research agenda. In B. B. Lahey, T. E. Moffitt, and A. Caspi (Eds.), Causes of conduct disorder and juvenile delinquency (pp. 49–75). New York: Guilford Press. Murrie, D. C., & Cornell, D. G. (2000). The Millon Clinical Assessment Inventory and psychopathy. Journal of Personality Assessment, 75, 110–125. Murrie, D. C., & Cornell, D. G. (2002). Psychopathy screening of incarcerated juveniles: A comparison of measures. Psychological Assessment, 14, 390–396. Murrie, D. C., Cornell, D. G., Kaplan, S., McConville, D., & Levy-Elkon, A. (2004). Psychopathy scores and violence among juvenile offenders: A multi-measure study. Behavioral Sciences and the Law, 22, 49–67. Myers, W. C., Burket, R. C., & Harris, H. E. (1995). Adolescent psychopathy in relation to delinquent behaviors, conduct disorder, and personality disorders. Journal of Forensic Sciences, 40, 436–440. Neumann, C. S., Kosson, D. S., Forth, A. E., & Hare, R. D. (2006). Factor structure of the Hare Psychopathy Checklist: Youth Version (PCL:YV) in incarcerated adolescents. Psychological Assessment, 18, 142–154.

Assessing Child and Adolescent Psychopathy

381

Newman, J. P., Patterson, C. M., & Kosson, D. S. (1987). Response perseveration in psychopaths. Journal of Abnormal Psychology, 96, 145–148. O’Brien, B. S., & Frick, P. J. (1996). Reward dominance: Associations with anxiety, conduct problems, and psychopathy in children. Journal of Abnormal Child Psychology, 24, 223–240. O’Neill, M. L., Lidz, V., & Heilbrun, K. (2003). Adolescents with psychopathic characteristics in a substance abusing cohort: Treatment process and outcome. Law and Human Behavior, 27, 299–313. Pardini, D. A., Lochman, J. E., & Frick, P. J. (2003). Callous/Unemotional traits and socialcognitive processes in adjudicated youths. Journal of the American Academy of Child and Adolescent Psychiatry, 42, 364–371. Plomin, R., & Caspi, A. (1999). Behavioral genetics and personality. In L. A. Pervin and O. P. John (Eds.), Handbook of personality: Theory and research (pp. 251–276). New York: Guilford Press. Plutchik, R. (1980). Emotion: A psychoevolutionary synthesis. New York: Harper & Row. Plutchik, R., & Conte, H.R. (1997). Circumplex models of personality and emotions. Washington, DC: American Psychological Association. Poythress, N. G., Dembo, R., Wareham, J., & Greenbaum, P. E. (2006). Construct validity of the Youth Psychopathic traits Inventory (YPI) and the Antisocial Process Screening Device (APSD) with Justice-involved adolescents. Criminal Justice and Behavior, 33, 26–55. Quay, H. C. (1964). Dimensions of personality in delinquent boys as inferred from factor analysis of case history data. Child Development, 35, 479–484. Quay, H. C. (1965). Psychopathic personality as pathological stimulation seeking. American Journal of Psychiatry, 122, 180–183. Quay, H.C. (1986). A critical analysis of DSM-III as a taxonomy of psychopathology in childhood and adolescence. In T. K. Millon & L. Gerald (Eds.), Contemporary directions in psychopathology: Toward the DSM-IV (pp. 151–165). New York: Guilford Press. Quay, H. C. (1987). Patterns of delinquent behavior. In H. C. Quay (Ed.), Handbook of juvenile delinquency (pp. 118–138). New York: Wiley. Radke-Yarrow, M., & Zahn-Waxler, C. (1984). Roots, motives and patterns in children’s prosocial behavior. In E. Staub, J. Bar-Tal, J. Karylowski, & J. Reykowski (Eds.), Development and maintenance of prosocial behavior: International perspectives on positive behavior (pp. 81–99). New York: Plenum Press. Richters, J. E., & Cicchetti, D. (1993). Mark Twain meets the DSM-III-R: Conduct disorder, development, and the concept of harmful dysfunction. Development and Psychopathology, 5, 5–29. Roberts, B.W., & DelVecchio, W.F. (2000). The rank-order consistency of personality traits from childhood to old age: A quantitative review of longitudinal studies. Psychological Bulletin, 126, 3–25. Rutherford, M. J., Cacciola, J. S., Alterman, A. I., McKay, J. R., & Cook, T. G. (1999). Twoyear test-retest reliability of the Psychopathy Checklist-Revised in methadone patients. Assessment, 6, 285–291. Robins, L. N. (1966). Deviant children grown up: A sociological and psychiatric study of sociopathic personality. Baltimore, MD: Williams & Wilkins. Rogers, R., Johansen, J., Chang, J, Salekin, R. T. (1997). Predictors of adolescent psychopathy: Oppositional and conduct disordered symptoms. Journal of the American Academy of Psychiatry and Law, 25, 261–271. Rogers, R., Jackson, R. L., Sewell, K. W., & Johansen, J. (2004). Predictors of treatment outcome in dually-diagnosed antisocial youth: An initial study of forensic inpatients. Behavioral Sciences and the Law, 22, 215–222.

382

Randall T. Salekin and Sara A. Debus

Rutter, M. (2005). What is the meaning and utility of the psychopathy concept? Journal of Abnormal Child Psychology, 33, 499–503. Salekin, R. T. (2002). Psychopathy and therapeutic pessimism: Clinical lore or clinical reality? Clinical Psychology Review, 22, 79–112. Salekin, R. T. (2004). Risk-Sophistication-Treatment Inventory: Professional manual. Lutz, FL: Psychological Assessment Resources. Salekin, R. T. (2006). Psychopathy in children and adolescents: Key issues in conceptualization and assessment. In C. J. Patrick (Eds.), Handbook of psychopathy (pp. 389–414). New York: Guilford Press. Salekin, R.T. & Averett, C. A. (in press). Personality in childhood and adolescence. In M. Hersen & A. Gross (Eds.), Handbook of Clinical Child Psychology. Hoboken, NJ: Wiley. Salekin, R. T., Brannen, D. A., Zalot, A. A., Leistico, A. R., & Neumann, C. S. (2006). Factor structure of psychopathy in youth: Testing the new four factor model. Criminal Justice and Behavior, 33, 135–157. Salekin, R. T., & Frick, P. J. (2005). Psychopathy in children and adolescents: The need for a developmental perspective. Journal of Abnormal Child Psychology, 33, 403–409. Salekin, R. T., Leistico, A. R., Trobst, K. K., Schrum, C. L., & Lochman, J. E. (2005). Adolescent psychopathy and personality theory- the interpersonal circumplex: Expanding evidence of a nomological net. Journal of Abnormal Child Psychology, 33, 445–460. Salekin, R. T., Neumann, C. S., Leistico, A. R., DiCicco, T., & Duros, R. (2004). Psychopathy and comorbidity in a young offender sample: Taking a closer look at psychopathy’s potential importance over disruptive behavior disorders. Journal of Abnormal Psychology, 113, 416–427. Salekin, R. T., Neumann, C. S., Leistico, A. R., Zalot, A. A. (2004). Psychopathy in youth and intelligence: An investigation of Cleckley’s Hypothesis. Journal of Clinical Child and Adolescent Psychology, 33, 731–742. Salekin, R. T., Rogers, R., & Machin, D. (2001). Psychopathy in youth: Pursuing diagnostic clarity. Journal of Youth and Adolescence, 30, 173–195. Salekin, R. T., Rogers, R., & Sewell, K. W. (1996). A review and meta-analysis of the Psychopathy Checklist and Psychopathy Checklist-Reviewed: Preedictive validity of dangerousness. Clinical Psychology: Science and Practice, 3, 203–215. Salekin, R. T., Trobst, K. K., & Krioukova, M. (2001). Construct validity of psychopathy in a community sample: A nomological net approach. Journal of Personality Disorders,15, 425–441. Salekin, R. T., Ziegler, T. A., Larrea, M. A., Anthony, V., & Bennett, A. D. (2003). Predicting psychopathy with two Millon Adolescent psychopathy scales: The importance of egocentric and callous traits. Journal of Personality Assessment, 80, 154–163. Seagrave, D., & Grisso, T. (2002). Adolescent development and the measurement of juvenile psychopathy. Law and Human Behavior, 26, 219–239. Schroeder, M. L., Schroeder, K. G., & Hare, R. D. (1983). Generalizability of a checklist for the assessment of psychopathy. Journal of Consulting and Clinical Psychology, 51, 511–516. Schrum, C. L., & Salekin, R. T. (2006). Psychopathy in adolescent female offenders: An item response theory analysis of the Psychopathy Checklist:Youth Version. Behavioral Sciences and the Law, 24, 39–63. Skeem, J. L., & Cauffman, E. (2003). Views of the downward extension: Comparing the youth version of the Psychopathy Checklist with the Youth Psychopathic traits Inventory. Behavioral Sciences and the Law, 21, 737–770. Skeem, J. L., Monahan, J., & Mulvey, E. P. (2002). Psychopathy, treatment involvement, and subsequent violence among civil psychiatric patients. Law and Human Behavior, 26, 577–603.

Assessing Child and Adolescent Psychopathy

383

Skeem, J. L., & Petrila, J. (2004). Juvenile psychopathy: informing the debate. Behavioral Sciences and the Law, 22, 1–4. Spain, S. E., Douglas, K. S., Poythress, N. G., Epstein, M. (2004). The relationship between psychopathic features, violence, and treatment outcome: The comparison of three youth measures of psychopathic features. Behavioral Sciences and the Law, 22, 85–102. Stevens, D., Charman, T., & Blair, R. J. R. (2001). Recognition of emotion in facial expressions and vocal tones in children with psychopathic tendencies. The Journal of Genetic Psychology, 162, 201–211. Stouthamer-Loeber, M. (1986). Lying as a problem behavior in children: A review. Clinical Psychology Review, 6, 267–289. United States v. Doe #3, 113F. Supp. 604 (SDNY 2000). Viding, E., Blair, R. J. R., Moffitt, T. E., & Plomin, R. (2004). Evidence for substantial genetic risk for psychopathy in 7-year-olds. Journal of Child Psychology and Psychiatry, 45, 1–6. Vincent, G. M. (2006). Psychopathy and violence risk assessment in youth. Child and Adolescent Psychiatric Clinics of North America, 15, 407–428. Vincent, G. M., & Hart, S. D. (2002). Psychopathy in childhood and adolescence: Implications for the assessment and management of multi problem youths. In R. R. Corrado, R. Roesch, S. D. Hart, & J. K. Gierowski (Eds.), Multi-problem violent youth: A foundation for comparative research on needs, interventions and outcomes (NATO Science Series A: Life Sciences) (pp. 150–163). Amsterdam: IOS Press. Vincent, G. M., Vitacco, M. J., Grisso, T., & Corrado, R. R. (2003). Subtypes of adolescent offenders: Affective traits and antisocial behavior patterns. Behavioral Sciences and the Law, 21, 695–712. Vitacco, M. J., Rogers, R., & Neumann, C. S. (2003). The Antisocial Process Screening Device: An examination of its construct and criterion-related validity. Assessment, 10, 143–150. Vitacco, M. J., & Vincent, G. M. (2006). Understanding the downward extension of psychopathy to youth: Implications for risk assessment and juvenile justice. International Journal of Forensic Mental Health, 5, 29–38. Vitale, J. E., Newman, J. P., Bates, J. E., Goodnight, J., Dodge, K. A., Pettit, G. S. (2005). Deficient behavioral inhibition and anomalous selective attention in a community sample of adolescents with psychopathic traits and low-anxiety traits. Journal of Abnormal Child Psychology, 33, 461–470. Walsh, T., & Walsh, Z. (2006). The evidentiary introduction of Psychopathy ChecklistRevised Assessed Psychopathy in U.S. courts: Extent and appropriateness. Law and Human Behavior, 30, 493–507. Widiger, T. A., & Lynam, D. R. (1998). Psychopathy as a variant of common personality traits: Implications for diagnosis, etiology, and pathology. In T. Millon (Ed.), Psychopathy: Antisocial, criminal, and violent behavior (pp. 171–187). New York: Guilford Press. Williamson, S., Harpur, T. J., & Hare, R. D. (1991). Abnormal processing of affective words by psychopaths. Psychophysiology, 28, 260–273. Wong, S., & Hare, R. D. (2005). Guidelines for a psychopathy treatment program. Toronto, ON: Multi Health Systems. Wootton, J. M., Frick, P. J., Shelton, K. K., Silverthorn, P. (1997). Ineffective parenting and childhood conduct problems: The moderating role of callous-unemotional traits. Journal of Consulting and Clinical Psychology, 65,301–308. Zahn-Waxler, C., & Radke-Yarrow, M. (1990). The origins of empathic concern. Motivation and Emotion, 14, 107–130. Zahn-Waxler, C., Radke-Yarrow, M., Wagner, E., & Chapman, M. (1992). Development of concern for others. Developmental Psychology, 28, 126–136.

15 Assessing Risk for Violence in Adolescents Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Assessing Risk for Violence in Adolescents Youth violence is an issue which has been frequently misunderstood by the public, and exaggerated by the media. Nevertheless, there is no doubt that youth violence is a serious problem. According to official arrest records, youth accounted for 12% of arrests for violent crimes in 2002 (Snyder, 2004). Also, self-report surveys have found that approximately 30-to-40% of males and 15-to-30% of females report that they committed a violent act by age 17 (Office of the Surgeon General, 2001). During adolescence, many youth—even those who did not exhibit problematic behaviors as children—engage in violent and delinquent behavior (Office of the Surgeon General, 2001). In fact, violent and delinquent behavior is so common during adolescence that many scholars have described it as normative (Elliott, Ageton, Huizinga, Knowles, & Cantor, 1983; Hirschi, 1969; Moffitt, 1993). Although a proportion of these youth continue to reoffend during adulthood, many do not become career criminals (Moffitt, 1993). In order to make informed decisions about how to manage and treat violent youth, it is important to distinguish between youth who are and are not likely to commit future acts of violence. However, this is a difficult task. Serious concerns have been expressed regarding a clinician’s ability to assess risk for violence (see Barefoot v. Estelle, 1983; Menzies, Webster, McMain, Staley, & Scagliones, 1994; Monahan, 1981), and violence risk assessments in youth are considered especially difficult because of the enormous developmental changes that occur during adolescence and the dearth of research in this area (APA Brief for Roper v. Simmons, 2005; Borum, 2000; Grisso, 1998). The goal of this chapter is to review available approaches for assessing risk for violence in adolescents. Assessing risk for violence among adults is reviewed by Jackson and Guyton (chapter 7, this volume). For the purpose of this chapter, violence is defined as threatened or actual physical acts that cause, or are likely to cause, physical harm to a person or group of persons (see Borum, Bartel, & Forth, 2003; Krug, Dahlberg, Mercy, Zwi, & Lozano, 2002). This definition excludes physical acts that are intended to damage property rather than people and verbally aggressive statements that are not likely to be accompanied by physical harm. In order to assess violence risk in youth, it is important that clinicians have an adequate background understanding of youth violence, including rates of violence in youth, development models of violence, and risk factors for youth violence. As such, the literature on 385

386

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

these topics is reviewed. Following this, the process of evaluating violence risk in youth is discussed, with a focus on relevant developmental issues and challenges. Background on Youth Violence and Risk Assessments Rates of Youth Violence There appears to be a growing focus on assessing youths’ risk of violence due to increased public concern about youth violence. In the mid-1990s, official reports of youth violence increased substantially, particularly homicide rates, which increased by 150% between 1985 and 1994 (Snyder, Sickmund, & Poe-Yamagata, 1996). A number of explanations were offered for this trend, including increased gang activity, drug trafficking, and access to firearms, as well as weaker family structures (Blumstein, 2001; Butts & Travis, 2002). This reported increase in youth violence led to a more punitive stance towards adolescent offenders (Grisso, 2001). Specifically, many states changed their laws so as to make juvenile court dispositions lengthier and more severe, and transfer to adult court easier and more common (Gilles & Jackson, 2003; Redding, Goldstein, & Heilbrun, 2005). Also, many schools adopted zero tolerance policies towards students who committed infractions (Reddy et al., 2001). The reported increase in youth violence that drove these policy changes has since turned out to be relatively short-lived. Recent statistics indicate that juvenile arrests for violent crimes reached a plateau in 1994, and by 2002, juvenile arrests were half that of the 1994 peak level (Snyder, 2004). Notably, however, violence in female youth has not shown the same steep decline as violence in male youth, but instead appears to have increased somewhat (Snyder, 2004; Office of the Surgeon General, 2001). Despite the overall decrease in reported youth violence, many exaggerated beliefs about youth violence linger, and the punitive policies, which incorrectly assume youth violence is on the rise, remain. Americans believe that nearly half of violent crimes are committed by youth whereas in reality this figure is approximately 13% (Borum, 2003). In addition, despite concerns about school violence, criminal victimization in schools has not changed between 1989 and 1995, and students are less likely to be hurt or injured in school than outside of school (Mulvey & Cauffman, 2001). As such, clinicians who assess risk for youth violence may work in environments that promote exaggerated concerns regarding youth violence. Therefore, it may be important for clinicians to provide judges, attorneys, school administrators, and other parties who request violence risk assessments with accurate information regarding rates of youth violence. Models of Violence and Developmental Pathways In evaluating youth’s risk for violence, clinicians should be familiar with proposed models and developmental pathways for youth violence. One model that has attracted considerable attention as well as empirical support is Moffitt’s taxonomic model of offending (Moffitt, 1993). Moffitt distinguishes between “life-course persistent offenders” and

Assessing Risk for Violence in Adolescents

387

“adolescence-limited offenders.” Life-course persistent offenders exhibit antisocial behavior early in life as a result of the interaction between acquired or inherited neurological deficits, particularly deficits in verbal abilities and executive functioning, and a high-risk social environment. Their antisocial behavior continues into adulthood, often increasing in seriousness. Life-course persistent offenders are thought to be relatively rare; instead, Moffitt asserts that most adolescents who offend are adolescent-limited offenders. In contrast to life-course persistent offenders, adolescent-limited offenders do not exhibit antisocial behavior during childhood, but begin to engage in antisocial behavior during adolescence, typically as a result of affiliations with delinquent peers and the mature status that antisocial behavior may help them acquire (Moffitt, 1993). Their antisocial behavior discontinues with age, as the consequences for engaging in delinquent behaviors become increasingly negative. Research has found support for Moffitt’s taxonomic theory. In particular, adolescentlimited and life-course persistent offenders have been found to be distinguished on the basis of risk factors proposed by the theory, such as neurological deficits (Moffitt & Caspi, 2001). Furthermore, longitudinal research has indicated that at age 25, individuals classified as life-course persistent offenders engaged in significantly higher levels of antisocial behavior than individuals classified as adolescent-limited offenders (Moffitt, Caspi, Harrington, & Milne, 2002). However, that study reported that adolescent-limited offenders had not entirely desisted from offending by age 25, possibly because the period of adolescence may extend for longer in modern society, as individuals marry and begin careers at increasingly older ages. Similar to Moffitt (1993), Loeber and Stouthamer-Loeber (1998) proposed three types of violent individuals, namely a life-course type, a limited-duration type, and a small group of offenders who do not engage in violence until adulthood, which they refer to as the late-onset type. Although Moffitt’s model focuses on general offending, Loeber’s and Stouthamer-Loeber’s conceptualization focuses specifically on violence. However, a central feature of both models is a recognition that a sizable proportion of youth who offend during adolescence do not necessarily continue to offend as adults. Consistent with these models, it is important for clinicians to recognize that not all youth who engage in violent behavior continue to do so and to consider whether a particular youth appears to exhibit a developmental trajectory and characteristics that are consistent with limited or persistent violence. Risk Factors for Violence Numerous studies have investigated the factors that may put youth at an increased risk for violence. Also, over the past decade, research has started to examine protective factors, or characteristics or conditions that may buffer risk. Consistent with Urie Bronfenbrenner’s (1979) ecological framework, research has organized risk and protective factors along the following five domains: individual, family, peer, school, and community. In the following section, risk and protective factors relevant to each domain are briefly examined (for more detailed reviews readers are advised to consult Borum & Verhaagen, 2006; Office of the Surgeon General, 2001). It is important to note that, although the factors described are correlated with violence, causal mechanisms remain largely unknown. This is because most research

388

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

in this area must be generally correlational rather than experimental. For instance, it is clearly not possible to randomly assign youth to abused and nonabused groups in order to determine if there is a relationship between abuse and future violence perpetration.

Individual Level Factors Past delinquent and violent behavior is an important predictor of future violence (Lipsey & Derzon, 1998). In fact, past history of aggression and violence is considered to be one of the most robust predictors of future violence, particularly when violence is first demonstrated at an early age (Loeber, 1982; Moffitt, 1993; Stattin & Magnusson, 1989). However, as described earlier, not all youth with histories of violence continue to reoffend. Therefore, other risk factors are important in explaining the initiation and continuance of violent behavior. A number of biological factors are associated with violent behavior in adolescents, including low levels of serotonin (Cleare & Bond, 1997), low salivary cortisol (McBurnett, Lahey, Capasso, & Loeber, 1996), low levels of arousal and reactivity (Raine, 1997), prefrontal dysfunction (Raine, 1997), prenatal complications (Brennan, Mednick, & Kandel, 1991), and delivery complications, especially when combined with maternal rejection (Raine, Brennan, & Mednick, 1994). In addition, there appear to be ties between cognitive abilities and aggression. Research has shown that even after controlling for other factors, low IQ is predictive of aggressive and delinquent behavior among adolescents (Lynam, Moffitt, & Stouthamer-Loeber, 1993). This may, in part, be explained by academic failure (Maguin & Loeber, 1996; Farrington, 1989). Deficits in executive functioning have also been found to be important predictors of physical aggression (Séguin, Pihl, Harden, Tremblay, & Boulerice, 1995). Aggressive youth tend to differ from nonaggressive youth in how they process social information. For instance, they tend to misperceive others’ intent as hostile, and as a result, may believe that aggression is a justified response (see Dodge, 1991; Dodge, Murphy, & Muchsbaum, 1984). In addition, aggressive youth have difficulty formulating nonaggressive solutions to problems. Recently, there has been a growing recognition that detained adolescent offenders, including violent adolescent offenders, have remarkably high rates of mental disorders (Teplin, Abram, McClelland, Dulcan, & Mericle, 2002; Wasserman, McReynolds, Lucas, Fisher, & Santos, 2002). This raises the possibility that certain mental disorders may elevate risk of violence among youth with mental disorders (Grisso, 2004; Vincent & Grisso, 2005). At this point, however, little is known about possible relationships between mental disorders and youth violence. Thus far, some studies have found that violent youth are more likely than nonviolent youth to exhibit symptoms of Attention-Deficit/Hyperactivity Disorder, particularly hyperactivity and impulsivity (Connor, 2002; Farrington, 1989; Hawkins et al., 1998). In addition, research has consistently shown a positive relationship between substance abuse and violent behavior (Brook, Whiteman, Finch, & Cohen, 1996; White, Loeber, Stouthamer-Loeber, & Farrington, 1999), but at the present time,

Assessing Risk for Violence in Adolescents

389

there is little agreement regarding the direction of and mechanism underlying this relationship (Giancola et al., 1996; White et al., 1998). Less is known about relationships between internalizing types of disorders, such as Post-Traumatic Stress Disorder (PTSD) and Depression, and youth violence. Several studies have reported that some female and male adolescent offenders with PTSD may have difficulties suppressing aggressive impulses (Cauffman, Feldman, Waterman & Steiner, 1998; Steiner, Garcia, & Matthews, 1997). In addition, some but not all research has suggested that youth with depression may be at heightened risk of aggression, possibly because depression manifests as irritability among some youth, and irritability could in turn lead to anger and aggression (Knox et al., 2000; cf. Grosz, Lipschitz, & Eldar, 1994). Given the preliminary nature of these findings, firm conclusions cannot be drawn. Also, importantly, clinicians should recognize that most youth with mental disorders are not violent. A number of individual characteristics may help mitigate potential risk for violence in adolescents. Specifically, prosocial attitudes, intelligence, and resilient personality traits, such as high self-efficacy, may serve as protective factors, which decrease the likelihood of future violence among adolescents (see Jessor, Van Den Bos, Vanderryn, Costa, & Turbin, 1995). Future research on individual protective factors, however, is needed.

Family Level Factors Often, various types of maladjustment may be evident in the families of violent youth. Youth who engage in violence are more likely than other youth to have witnessed family violence (Farrington, 1989; Hawkins et al., 1998), experienced maltreatment—particularly physical abuse and neglect (Widom, 1989; Smith & Thornberry, 1995)—and endured disruptions in their early relationships with caregivers, such as placements in foster care (Farrington, 1989; Hawkins et al., 1998). Also, they are more likely to have parents who engage in criminal behavior themselves, apply extreme and/or inconsistent punishment, and provide limited supervision and monitoring (Farrington, 1989; Hawkins, et al., 1998; McCord, 1979). The relationship between low parental involvement and attachment and delinquency may be bidirectional. Youth who exhibit low levels of parental attachment tend to exhibit higher rates of delinquency (Thornberry, Huizinga, & Loeber, 1995). Involvement in delinquency may, in turn, lead to further reductions in parental attachment. As Thornberry and colleagues (1995) explain, “one consequence of delinquent behavior would be to increase the very factors that appear to bring it about in the first place, thereby creating mutually reinforcing trajectories” (p. 229). If a youth has positive relationships and attachments with prosocial caregivers, this may serve as a protective factor against violence (Hawkins & Catalano, 1992). It is important to note that the impact of family risk factors, such as having a parent who is involved in crime, may decline as youth move through adolescence (Lipsey & Derzon, 1998). Although parents and families continue to influence adolescent behavior, they often do so indirectly. For example, research has shown that the type of peers chosen during adolescence is often related to the type and quality of the parent–child relationship (Elliott, Huizinga, & Menard, 1989; Simons, Wu, Conger, & Lorenz, 1994).

390

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Peer-Level Factors Peer-level predictors are important in explaining adolescent violence, especially given that most juvenile offenses are committed in groups (Warr, 1996). Research has consistently shown a robust relationship between associations with delinquent peers and later violent behavior (Farrington, 1989; Hawkins et al., 1998). Adolescents may initially be channeled towards delinquent peer networks as a result of rejection by prosocial peers. Movement into a slightly more deviant peer group leads to increased aggression and delinquent behavior, which in turn leads to association with a more delinquent peer group, where aggression and delinquency are valued (Coie & Miller-Johnson, 2001). Elliott’s and Menard’s (1996) analysis of National Youth Survey data demonstrated that, “the onset of exposure to delinquent friends typically precedes the onset of one’s own delinquent behavior” (p. 28). In fact, they found that only 1% of youth reported engaging in offenses prior to association with delinquent and antisocial peers. On the other hand, associations with peers who disapprove of delinquent behavior are often cited as a protective factor that may inhibit later violence (Elliott, 1994). School Factors Poor academic achievement has consistently been shown to predict later antisocial behavior (Maguin & Loeber, 1996; Lipsey & Derzon, 1998). In addition, there is some evidence that negative attitudes towards school and poor school bonding is predictive of violence, although results have been somewhat mixed (Elliott, 1994; Hawkins et al., 1998). However, good achievement and attachment to school may help decrease the likelihood that a youth will engage in future violence (Battistich & Hom, 1997). In particular, positive academic performance can buffer the risk for violence among those youth with risk factors in other domains by providing youth with opportunities they may not encounter elsewhere to achieve success and approval (Office of the Surgeon General, 2001). Community Factors Community characteristics have also been shown to impact levels of youth violence. Important community risk factors that increase youths’ risk of violence include the presence of crime, high availability of drugs and firearms, poor housing, and gangs (Hawkins et al., 1998; Sampson & Lauritsen, 1994). Although not all economically disadvantaged neighborhoods experience high rates of violence, being raised in poverty contributes to an increased risk of violence (Sampson & Lauritsen, 1994). In fact, as compared to middle-class youth, self-reported felony assault has been found to be twice as common among youth living in poverty (Elliott et al., 1989). Farrington (1989) found an even larger disparity: 23% of adolescents living in poverty were convicted for a violent offense, compared to 9% of those not living in poverty. Poverty and violence do not have a simple relationship; violence risk increases when poverty is coupled with discrimination and prejudice (Hill, Soriano, Chen, & LaFramboise, 1994). Supporting this notion, Caldwell and colleagues (2004) found

Assessing Risk for Violence in Adolescents

391

that experience with racial discrimination was a strong risk factor for violent behavior in African-American youth transitioning to young adulthood (see also McCord & Ensminger, 1995). This research emphasizes the significance of understanding aggression and violent behavior within community and cultural contexts. As this brief overview indicates, there are numerous factors that may contribute to violent offending in youth. Clinicians should consider not only individual factors that may contribute to violent behavior in a youth but also the broader social contexts, including schools, families, peers, and communities. Researchers have recently begun to compile these sets of factors to form risk assessment tools (described later in the chapter). Assessment and Management of Violence Risk in Adolescents Over the past couple of decades, research on violence risk assessment, particularly in adults, has grown tremendously, and there have been a number of important developments in the field. In the following sections, these developments are reviewed. Afterwards, challenges in assessing adolescents’ violence risk are described, and potential strategies for assessing and managing violence risk are examined. Special populations and types of violence are discussed, including targeted school violence, and violence in female youth, minority youth, and mentally ill youth. To start, the numerous contexts in which violence risk assessment may occur are briefly described. Contexts in Which Violence Risk Assessments Occur There are numerous situations in which clinicians may be asked to evaluate a youth’s risk for future violence. Violence risk assessments may be requested to inform legal decisions such as whether a youth should be prosecuted, detained in custody prior to and/or following adjudication, what level of security and type of residence a youth requires, and at what point a detained youth is sufficiently low risk that he or she is ready to be reintegrated into the community (Hoge, 2002; Prentky & Righthand, 2003). In determining whether a youth should be transferred to adult court, courts routinely consider the youth’s risk for future violence (Kent v. United States, 1966). Also, a number of states now allow adolescent sex offenders who are judged to be a high risk for future violence to be included on sex offender registries or civilly committed (Caldwell, 2002; Trivits & Reppucci, 2002). In addition, violence risk assessments may provide information that is critical in clinical settings. Duty to protect laws establish an obligation for clinicians to intervene when they believe an individual may pose an immediate high risk of violence to an identifiable target (Tarasoff v. Regents of the University of California, 1976), and civil commitment laws state that risk of violence to others is one factor that must be considered in determining whether to commit an individual. Information about a youth’s risk factors can be used to help develop individualized treatment and supervision plans, evaluate treatment progress, and guide decisions about treatment termination. Also, given that treatment resources are often very limited, violence risk assessments have the potential to help clinicians and administrators know how to best utilize resources so that those youth who pose the highest risk for future violence receive the most intensive services (Borum, 2003).

392

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Developments in Violence Risk Assessment Over the past several decades there have been important shifts in how violence risk assessments are conceptualized. In the past, researchers and practitioners often considered violent behavior to be a static and dichotomous trait; an individual was either dangerous or not, and there was little room for change (Borum, 2000). More recently, there has been increasing recognition of risk for violence as a dynamic characteristic which depends on the context, falls along a continuum, and must be reassessed as individuals and their environments change (Borum, 2003; Kroner, 2005). In addition, there has been increasing focus on how risk can be managed in an effort to prevent future violence (Heilbrun, 1997). Accompanying these evolving conceptualizations of violence risk assessment have been significant changes and advances in technologies for assessing risk (Borum, 1996). Historically, unstructured clinical judgment was relied on in making judgments about violence risk. Since the 1990s, however, a number of structured risk assessment tools have developed. Due perhaps in part to these advancements in risk assessment technology, there is increased optimism regarding clinicians’ ability to assess an individual’s likelihood of engaging in violent behavior (Otto, 1992). Although in the past, scholars had concluded mental health professionals were no better than chance in assessing risk of violence (Monahan, 1981), nowadays most scholars argue that mental health professionals have “at least a modest ability to predict violence” in adults (Borum, 1996, p. 946). Special Challenges in Assessing Violence Risk in Adolescents Despite the increased optimism regarding the assessment of violence risk, the assessment of violence risk in adolescents is often considered to be a particularly difficult task. For instance, in the recent case of Roper v. Simmons (2005), in which the juvenile death penalty was challenged and revoked, the American Psychological Association and the Missouri Psychological Association wrote an amicus curiae1 brief, which concluded that mental health professionals have a “limited” ability to distinguish between youth who will and will not commit crimes as adults. There are a number of reasons why assessing risk of violence in adolescents may be even more difficult than assessing violence risk in adults. First, because of the enormous developmental changes that occur during adolescence, the task of assessing an adolescent’s risk for future violence has been likened to trying to assess a “moving target” (Borum, 2003; Prentky & Righthand, 2003; Mulvey & Cauffman, 2001). Although many youth engage in antisocial and violent behavior during adolescence, this behavior is often transient (Moffitt, 1993). Given the high rates of desistance among adolescent offenders, Grisso (1998) recommends that clinicians should generally assume that a youth will be a low risk for long-term violence unless there is evidence to the contrary. A second challenge in assessing youths’ violence risk is that predictors of violence may vary by developmental stages. For instance, family risk factors and individual characteristics appear to be especially important during childhood, whereas peer and school-related factors become increasingly important during adolescence (Augimeri, Koegl, Levene, & Webster, 2005; Lipsey & Derzon, 1998). These changes in risk factors emphasize the need

Assessing Risk for Violence in Adolescents

393

to frequently reassess youth’s risk of violence, to focus on short-term predictions of risk rather than long-term predictions, and to use age-appropriate tools. A third challenge in assessing youths’ violence risk relates to limitations in the tools and information available to clinicians. Until recently, there have been few adolescent risk assessment tools available to clinicians. Also, the tools that have been developed have not yet been extensively tested. While there is a growing body of research on tools for assessing psychopathic characteristics in youth, research on adolescent risk assessment tools has been much slower (see Vincent, 2006; Salekin & Debus, also in this volume). In addition, whereas adults may have lengthy criminal records and numerous previous mental health reports, less information may be available for youth. Adolescents may be one important source of information, in addition to records and collateral sources. However, adolescents may have less insight and accuracy about their internal states, and may try to act “tough” by emphasizing and exaggerating their delinquent behavior (McCann, 1998; see also Rogers et al., 2002). Alternatively, some adolescents may attempt to minimize their delinquent behavior and try to appear more prosocial than they actually are. As such, clinicians should carefully assess for response biases. A final important challenge in assessing youth’s violence risk pertains to the ethical issues involved in making judgments about youth. Although it is clearly important to strive to avoid “false negatives,” or situations in which a high risk youth is erroneously labeled as a low risk for future violence, it is also important to strive to avoid “false positives,” or situations in which a low-risk youth is erroneously labeled as a high risk for future violence. The consequences of false positives may be even greater for youth than adults because there is often greater discretion within the juvenile justice system, and such labels may therefore significantly sway decision making about dispositions (Seagrave & Grisso, 2002). As such, clinicians should use considerable caution in assessing youths’ violence risk, and clearly state the limitations of their assessments. Steps in Assessing Youths’ Risk for Violence In this section, a brief outline of steps involved in conducting violence risk assessments in youth is provided. For more detailed information, readers are advised to consult Borum and Verhaagen (2006) and Grisso (1998). Step 1: Determine the Specific Risk Assessment Questions That Are Being Asked Risk assessments differ considerably in their focus (Borum, 2000). In some cases, such as in determining whether pretrial detention is necessary, the focus of the risk assessment will be on short-term risk for violence. However, in other cases, such as when transfer to adult court is being considered, the focus may be on the youth’s longer term risk (Grisso, 1998, 2004). In addition, although some cases may focus on violence within the community, other cases may focus on violence within detention facilities or mental health facilities. Given the variability in the focus and purpose of violence risk assessments in youth, it is necessary that clinicians clearly identify the specific questions that are being asked prior to initiating the assessment (Borum, 2000; Grisso, 1998). Step 2: Systematically Assess History of Violence and Risk Factors for Future Violence Clinicians should systematically gather information regarding a youth’s history

394

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

of violence and risk factors for future violence. The use of risk assessment tools, which are described later in the chapter, is encouraged. In addition to examining risk factors, it is important to examine factors that could protect against future violence. Also, clinicians should consider how potential changes in the presence of risk and protective factors, such as changes in the level or quality of supervision, could affect a youth’s violence risk. Step 3: Develop Risk Management Recommendations to Address Risk for Violence If a youth is considered to pose a potential risk for future violence, clinicians should develop risk management recommendations. In doing so, clinicians must be familiar with interventions and services that are available within their jurisdiction of practice as well as the empirical literature on evidence-based interventions (described later in the chapter). Step 4: Carefully Communicate Level of Risk and Risk Management Recommendations The final step in conducting a risk assessment is to carefully communicate findings about a youth’s level of risk and possible risk management strategies. Statements about a youth’s level of risk should be as specific as possible. Risk statements should be written in an “if–then” format (e.g., “If the youth were placed in a secure detention facility, then . . . . ” or “If the youth returned home to reside with his mother, then . . . ”), and a youth’s level of risk should be compared to a known group, such as other juvenile offenders (e.g., “Compared to other juvenile offenders, he is a low risk for . . . ”) (Grisso, 1998). Also, to the extent that there is adequate information to offer such conclusions, a description of the types of violence and severity of violence that a youth is likely to engage in should be provided, as well as likely targets and timelines. Given imprecision in clinicians’ abilities to predict future violence, it is considered preferable to provide categorical interpretations of risk level (e.g., “low risk,” “moderate risk,” or “high risk”) rather than numerical probabilities (“20% of youth with this score will commit future violence” or “20 of 100 youth will commit future violence”) (Heilbrun, Philipson, Berman, & Warren, 1999). Clinicians should provide an adequate rationale for any conclusions drawn, and they should clearly point out any limitations in their evaluations. Unstructured vs. Structured Assessments Unstructured clinical assessments are the traditional approach to risk assessment. Within this approach, the format of the assessment is determined by individual clinicians and formal tools to assess violence risk are not used. Despite its common use, unstructured clinical assessments have been heavily criticized. In particular, there is concern that the lack of structure may lead to inconsistency, biases, and inaccuracies in judgments about an individual’s risk for violence (Hoge, 2002). Early studies indicated that unstructured clinical predictions were no more accurate than chance (Monahan, 1981), and recent studies raise similar concerns (Borum, 1996). In part, the questionable validity of unstructured clinical assessment may stem from the fact that clinicians may rely on factors that do not have a strong relationship to future violence, and overlook those factors that do (Borum, Otto, & Golding, 1993). Furthermore, unlike structured approaches, which routinely make available information on psychometric properties, the psychometric properties of clinical approaches are largely unknown (Hoge, 2002).

Assessing Risk for Violence in Adolescents

395

Due to concerns about unstructured clinical judgments, a number of structured tools have been developed over the past several decades, including both actuarial and structured professional judgment tools. Although most of these tools have been designed for use with adults, several instruments have been designed for use with adolescents. It is argued that these tools help to ensure consistency in assessments, reduce the likelihood of biases, and reveal the reasoning behind judgments (Hoge, 2002). In actuarial methods, a fixed set of risk factors are examined, and each risk factor is rated as present or absent in the individual being evaluated. The number of risk factors exhibited by the individual is then typically summed, and the resulting score is then compared to a normative group. Based on this comparison, a judgment is made regarding the individual’s level of risk. Often, cut-off scores are used to determine risk level. Research has found that actuarial tools generally perform better than unstructured clinical judgments (Dawes, Faust, & Meehl, 1989; Garb, 1994; Grove & Meehl, 1996). However, actuarial tools have been criticized as rigid because they do not allow for a consideration of unique, idiographic, and context-specific variables (Douglas & Kropp, 2002). Also, they tend to focus on prediction rather than management issues, as they often contain primarily static risk factors, which cannot be targeted by interventions. Due to these limitations, the structured professional judgment (or structured clinical judgment) approach was developed in the 1990s (Webster, Müller-Isberner, & Fransson, 2002). The structured professional judgment approach can best be thought of as guidelines or an aide-mémoire rather than a formalized test. Within this approach, the evaluator systemically assesses whether a youth has a predetermined set of empiricallysupported risk factors. However, evaluators are also encouraged to take into account case-specific factors. The ultimate judgment regarding a youth’s risk level is made based on the evaluator’s professional judgment rather than based on cut-off scores. The structured professional judgment approach is more objective and prescriptive than unstructured clinical approaches, but also allows for a consideration of unique case features unlike most actuarial approaches (Douglas & Kropp, 2002). Also, these instruments tend to be more focused on risk management and prevention, in that they include clinical and dynamic factors that can be targeted by interventions. Like actuarial tools, the psychometric properties of structured professional tools are supported by a growing body of research (e.g., Dempster, 1998; Kropp & Hart, 2000).

Risk Assessment Tools Given the lack of data supporting unstructured clinical approaches, clinicians are encouraged to carefully consider the possible use of more structured approaches to assessing a youth’s potential for violence. In the past 5 years, several structured tools have been developed for assessing youths’ risk of violence and delinquency. Some of these tools, such as the Structured Assessment of Violence Risk in Youth (SAVRY; Borum, Bartel, & Forth, 2003), Early Assessment Risk List for Boys Version 2 (EARL-20B; Augimeri, Koegl, Webster, & Levene, 2001), and Estimate of Risk of Adolescent Sex Offender Recidivism (ERASOR; Worling & Curwen, 2001) are consistent with the structured professional judgment approach. Other tools, such as the Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II; Prentky & Righthand, 2003) and Youth Level of

396

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Service/Case Management Inventory (YLS/CMI; Hoge, Andrews & Leschied, 2002), strive to be somewhat more actuarial in nature. These tools are described in the following section. We have tried to select the instruments that have, at least at present, been most extensively researched and are the most directly related to violence. Although a number of states have developed their own instruments for assessing risk of reoffending in youth (e.g., Ashford & LeCroy, 1990; Barnoski & Markussen, 2005; Jung & Rawana, 1999), these tools are not described due to space limitations2. For more information on assessing risk of violence specifically in the context of transfer evaluations see Salekin and Grimes (also in this volume). EARL-20B and EARL-21G The Early Assessment Risk List for Boys (EARL-20B, Version 2; Augimeri, Koegl, Webster, & Levene, 2001), and the Early Assessment Risk List for Girls (EARL-21G, Version 1; Levene, Augimeri, Pepler, Walsh, Webster, & Koegl, 2001) are structured clinical tools designed to assess risk of violence and aggression among children under the age of 12. The EARL-20B consists of 20 factors, which are organized into three different domains, namely Family, Child, and Responsivity. The first set of factors on the EARL-20B, Family Items, evaluate household characteristics, caregiver continuity, parenting style, and the presence or absence of supports, stressors, and antisocial values and conflict. The second set of factors, Child Items, evaluate developmental problems, maltreatment and trauma, hyperactivity and attention deficits, likeability, peer socialization, academic performance, neighborhood characteristics, contact with authority, antisocial attitudes and behaviors, coping ability, and early onset behavioral difficulties. The third set of factors, Responsivity Items, evaluate child and family willingness to participate in treatment. The EARL-21G, which was developed specifically for use with girls, includes a set of risk factors that is very similar to the EARL-20B. However, given the importance of caregiver relationships to girls’ risk, the EARL-21G includes an additional item that evaluates caregiver–daughter interaction. Also, unlike the EARL-20B, the EARL-21G does not evaluate contact with authority. Instead, this item is replaced by one which focuses on girls’ sexual development. Each item on the EARL-20B and EARL-21G is rated on a three-point scale (not present, possibly present, and present), with a higher score representing greater risk. Items are coded on the basis of structured interviews as well as record reviews. In addition to the three-point rating system, both devices include a “critical risk” column that allows clinicians to mark factors that are of particular concern, and an “overall clinical judgment” rating that allows clinicians to assign a low, moderate, or high global rating of risk. Total scores on the items may be summed to form a total score. However, consistent with the structured professional judgment model, neither tool applies cut-off scores in determining the level of a child’s risk. Several studies have evaluated the psychometric properties of the EARL-20B and EARL-21G. Researchers have found that the interrater reliability of total scores on the EARL-20B to be excellent, with intraclass correlation coefficients falling in the .90s (Augimeri et al., 2005; Enebrink, Långström, Hultén, & Gumpert, in press). Also, research on the EARL-21G has found reasonable agreement among raters (Levene et al., 2001).

Assessing Risk for Violence in Adolescents

397

With respect to validity, researchers have reported moderate to high convergent validity between the EARL-20B and parent reports of their children’s aggressive behaviors (Enebrink et al., in press). Additionally, Augimeri and colleagues (2001) found a statistically significant relationship between high EARL-20B scores and subsequent criminal convictions for both boys and girls. Because this instrument is still early in its development and validation, the developers’ “urge users of the EARL-20B and EARL-21G to be cautious with respect to their application” (Augimeri et al., 2005, p. 303). However, when used to understand the factors that may contribute to violence risk in children, the EARL-20B and EARL21G appear to be useful tools that can guide risk management plans and interventions to reduce violence risk.

ERASOR The Estimate of Risk of Adolescent Sex Offender Recidivism (ERASOR; Worling & Curwen, 2001) is a checklist of risk factors developed specifically for assessing risk of sexual violence among adolescents aged 12 to 18 who have committed a prior sexual assault. To score youth on the ERASOR, it is necessary to conduct a clinical interview as well as review relevant file information. Items on the ERASOR were developed by systematically reviewing studies on sexual offense recidivism and guidelines for assessing sexual violence risk. After developing the pilot version of this checklist, it was circulated for review by colleagues and pilot tested. Based on pilot testing, minor revisions were made. The resulting tool, the ERASOR, consists of 25 items, which fall into the following five categories: The first category, Sexual Interests, Attitudes, and Behaviors, includes four items such as deviant sexual interests and attitudes supportive of sexual offending. The second category, Historical Sexual Assaults, includes nine items such as past sexual assault of a child and diverse sexual-assault behaviors. The third category, Psychosocial Functioning, includes six items such as lack of intimate peer relationships and poor self-regulation abilities. The fourth category, Family/Environmental Functioning, includes four items such as high-stress family environment and problematic parent–offender relationship. The fifth category, Treatment, includes two items such as incomplete sexual-offensespecific treatment. With the exception of the items relating to Historical Sexual Assaults, the other items are all dynamic factors which should be coded every 6 months. These risk factors are coded as being “present,” “possibly or partially present,” “not present,” or “unknown.” Like the SAVRY and the EARL-20B, the ERASOR is based on the structured professional judgment model of risk assessment approach. As such, the ERASOR does not apply cut-off scores or formulas in making determinations about youths’ risk level. Instead, evaluators are required to make a structured clinical rating regarding youth’s risk. The authors emphasize that predictions based on the ERASOR should focus on adolescent’s short-term risk, which they define as 1 year at most, rather than long-term risk because of adolescent’s rapid development and the fact that most of the risk factors on the ERASOR are dynamic factors that may change (Worling, 2004; Worling & Curwen, 2001).

398

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Worling (2004) investigated inter-rater agreement with the ERASOR, and its ability to predict repeat offenders. Unlike most studies on risk assessment instruments, this was not a retrospective file review study but used trained evaluators’ actual clinical assessments. Inter-rater reliability for items and overall rating was impressive; most item intraclass correlation coefficients fell in the .60s and .70s, and the intraclass correlation coefficient for overall rating was .85. Internal consistency for the total ERASOR score was adequate (.75), as were item-total correlations, which generally were > .25. In that study, Worling (2004) found that total scores on the ERASOR and structured clinical ratings made using the ERASOR were able to effectively distinguish known repeat sex offenders from those youth who were documented to have only sexually offended once. As further evidence of validity, youth rated at intake and mid-treatment scored significantly higher on the ERASOR than did youth rated at the time of discharge. Also, adolescents in residential treatment scored significantly higher than those in community-based agencies. Based on that study, the ERASOR appears to be a promising tool. Worling (2004) provides a number of useful recommendations for future research on the ERASOR, including prospective research on recidivism, research by independent researchers, and examinations of the predictive utility of individual items on the ERASOR.

J-SOAP-II The Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II; Prentky & Righthand, 2003) is a 28-item checklist designed to aid in assessing risk for sexual violence as well as general delinquency. It is intended to be used specifically with adolescent boys aged 12 to 18 who have a history of sexually coercive behavior. Based on preliminary investigations, the pilot version of this scale underwent two fairly substantial revisions. In these revisions, concrete behavioral anchors were developed for items with suboptimal interrater reliability, items with limited predictive validity were deleted, and several new risk factors identified by research were added. The resulting tool, the J-SOAP-II, consists of four subscales. The first two subscales on the J-SOAP-II, Sexual Drive/Preoccupation and Impulsive/Antisocial Behavior focus on static risk factors, which are generally unable to change over time. The items on these two subscales were selected based on reviews of research on risk factors for offending (Righthand et al., 2005). Also, to capture conduct-disordered and aggressive behavior the authors included items from the Childhood and Adolescent Psychopathy Taxon scale (Harris, Rice, & Quinsey, 1994). The Sexual Drive/Preoccupation subscale consists of eight items that pertain to sexual behavior problems, including prior sexual offense charges, number of sexual abuse victims, male child victims, duration of sexual offense history, degree of planning in sexual offenses, sexualized aggression, sexual preoccupation, and sexual victimization. The Impulsive/Antisocial Behavior subscale consists of eight items that pertain to general antisocial behavior, including caregiver consistency, pervasive anger, school behavior problems, history of conduct disorder, juvenile antisocial behavior, charges or arrests prior to age 16, multiple offense types, and history of physical assault and/or exposure to family violence.

Assessing Risk for Violence in Adolescents

399

The third and fourth subscales on the J-SOAP-II, namely Intervention and Community Stability/Adjustment, focus on dynamic risk factors, which were derived based on their clinical relevance (Righthand et al., 2005). The Intervention subscale consists of seven items related to treatability, including accepts responsibility, internal motivation for change, understands risk factors, empathy, remorse and guilt, cognitive distortions, and quality of peer relationships. The Community Stability/ Adjustment subscale consists of five items related to community and ecological conditions, including management of sexual urges, management of anger, stability of current living situation, stability in school, and positive support systems. Items on the J-SOAP-II are rated on a three-point scale (absent, possibly present, clearly present), with a higher score representing greater risk. Total scores are obtained by summing the items on the four scales. At the present time, the J-SOAP-II functions as an “empirically informed guide” rather than as an actuarial tool (Prentky & Righthand, 2003, p. 8). However, as the authors describe in the manual, they hope that as data are accumulated on this tool it will eventually be able to function as an actuarial instrument. Information on the psychometric properties of the J-SOAP-II is limited; no published studies have investigated the psychometric properties of the J-SOAP-II. Two published studies (Prentky, Harris, Frizzell, & Righthand, 2000; Righthand et al., 2005) and a number of unpublished studies have examined the earlier version of this instrument, the J-SOAP. This research has found that the interrater reliability of items on the J-SOAP was good (Prentky et al., 2000; Righthand et al., 2005). Also, item-total correlations and internal consistency appeared adequate. With respect to construct validity, research has found that the J-SOAP has a four-factor solution that parallels the four rationally-derived subscales of the J-SOAP (Righthand et al., 2005). In addition, the J-SOAP total score was correlated with Youth Level of Service/Case Management Inventory total score (r = .91), thus providing some support for its concurrent validity. Because the J-SOAP-II differs from the J-SOAP it is unclear if these positive findings will generalize to the J-SOAP-II. Furthermore, research on the predictive validity of this instrument has been hampered by low rates of reoffending in study samples (Prentky & Righthand, 2003). For instance, Prentky et al. (2000) had three sexual recidivists in the sample. Due to these low base rates of sexual reoffending, inferential statistics were not considered appropriate (Prentky et al., 2000). Nevertheless, descriptive findings have provided very preliminary evidence suggesting that high scale scores are associated with increased risk of reoffending. The authors of the J-SOAP-II are currently in the process of conducting a large, multisite study on the J-SOAP-II, which will provide useful information about its psychometric properties (Righthand et al., 2005). However, at the present time, the authors of the J-SOAP-II recommend that judgments regarding youths’ risk of reoffending are not made exclusively on the basis of their J-SOAP-II scores.

SAVRY The Structured Assessment of Violence Risk in Youth (SAVRY; Borum, Bartel, & Forth, 2003) is a scheme for assessing violence risk in male and female adolescents aged 12 to 18. The SAVRY is designed to be “systematic, empirically grounded, developmentally

400

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

informed, treatment-oriented, flexible, and practical” (Borum, Bartel, & Forth, 2005, p. 311). It consists of 24 risk items, which were derived from the empirical literature on youth violence, as well as six protective factors. The first of set of risk factors on the SAVRY are Historical Risk Factors, including history of violence, history of nonviolent offending, early initiation of violence, past supervision/intervention failures, history of self-harm or suicide attempts, exposure to violence in the home, childhood history of maltreatment, parental/caregiver criminality, early caregiver disruption, and poor school achievement. The second set of risk factors are Social and Contextual Risk Factors, including peer delinquency, peer rejection, stress and poor coping, poor parental management, and community disorganization. The third set of risk factors are Individual Risk Factors, including negative attitudes, risk taking and impulsivity, substance use, anger management problems, lack of empathy, attention-deficit/hyperactivity, poor compliance, and limited commitment to school. Each risk factor is coded as “high,” meaning a youth is high risk on this item, “moderate,” or “low.” In addition to assessing these risk factors, the SAVRY assesses whether six protective factors are “present” or “absent.” These protective factors include prosocial involvement, strong social support, strong attachments, positive attitude towards intervention and authority, strong commitment to school, and resilient personality traits. In rating youth on these risk and protective factors, evaluators are encouraged to interview the youth and collateral informants, such as family members, and conduct a comprehensive review of records, such as police reports, mental health reports, and social service records. Consistent with the structured professional judgment model, item scores on risk and protective factors are not summed. Instead, evaluators use the SAVRY to make a professional judgment about a youth’s risk for violence. Although much of the research on the SAVRY has not yet been published, evidence supporting the inter-rater reliability and validity of the SAVRY is accumulating. Catchpole and Gretton (2003) reported that interclass correlation coefficients for inter-rater reliability was .81 for the SAVRY total score, and .77 for structured professional judgments of risk based on the SAVRY (see also McEachran, 2001). Also, SAVRY risk scores have been found to be significantly related to violent reoffending, institutional aggressive behavior, and aggressive conduct disorder symptoms in male youth (Borum et al., 2005). For instance, Catchpole and Gretton (2003) found that 40% of youth classified as high risk on the SAVRY recidivated over a 1-year period as compared to 6% of youth classified as low risk on the SAVRY. Although the SAVRY demonstrates good convergent validity with the Youth Level of Service/Case Management Inventory (Hoge, Andrews, & Leschied, 2002) and the Psychopathy Checklist: Youth Version (Forth, Kosson, & Hare, 2003), it has been found to offer incremental validity over these instruments in postdicting aggression (Bartel, Forth, & Borum, 2003). Overall, the SAVRY appears to work similarly for female and male youth. However, Penney, Catchpole, Moretti, and Bartel (2005) reported that the SAVRY may be better at predicting violent offenses in boys than in girls. In general, the SAVRY is a very promising instrument. In addition to the growing evidence for its psychometric properties, its inclusion of dynamic variables and protective factors enable it to be useful in not only assessing violence risk but also developing strategies to manage and prevent violence. As the authors note, most existing research

Assessing Risk for Violence in Adolescents

401

on the SAVRY has focused on samples of Caucasian male youth. Therefore, more research is needed to determine its psychometric properties for female adolescents and adolescents from racial and ethnic minority groups (Borum et al., 2005).

YLS-CMI The Youth Level of Service/Case Management Inventory (YLS/CMI; Hoge, Andrews & Leschied, 2002) is an inventory developed to evaluate juvenile offenders’ general recidivism risk (as opposed to specifically their risk for violence), and to assist in case management planning. It was designed to be used by probation officers, child care workers, and others working in juvenile justice settings. The YLS/CMI is completed by reviewing relevant file information, and conducting interviews with the youth and collateral sources. The YLS/CMI is based on the risk, need, and responsivity principles of case classification (Hoge, Andrews, & Leschied, 2002). The “risk principle” states that agency resources can be optimized by matching services to the level of risk presented by the offender. That is, those offenders at high risk of recidivism should receive more intensive services than those at a lower risk. The “need principle” states that appropriate services can be provided to clients by matching services with the criminogenic needs of the client. Criminogenic needs are factors that are amenable to change and may reduce the level of risk for future violence. The “responsivity principle” states that decisions about services should take into account characteristics of the youth (e.g., intelligence), as well as his or her circumstances (e.g., availability of a supportive adult). The YLS/CMI was developed from the Level of Service Inventory–Revised (LSI-R; Andrews & Bonta, 1995), which is a well-researched tool that is used to evaluate the risk level and case management needs of adult offenders. The original version of the YLS/CMI was called the Youth Level of Service Inventory (YLSI; Andrews, Robinson, & Hoge, 1984), and contained 112 risk/need items that were selected from research on youth crime. That version was then shortened, and several sections were added, including a case management section (Hoge, 2005). The resulting tool, YLS/CMI, includes six sections. In Part I, evaluators assess whether 42 risk/need factors that are associated with juvenile offending are present or absent for a particular youth. These risk/need factors are divided into the following eight subscales: Prior and Current Offenses, Family Circumstances/Parenting, Education/Employment, Peer Associations, Substance Abuse, Leisure/Recreation, Personality/Behavior, and Attitudes/Organization. For seven of these subscales (all except for Prior and Current Offenses), strengths or protective factors can also be identified. In Part II, evaluators calculate subscale scores on the risk/needs factors, and calculate an overall risk/needs score. Four categories of risk/need are denoted, including “low” risk (0–8), “moderate” risk (9–22), “high” risk (23–34) and “very high” risk (35–42). In Part III, evaluators consider special considerations and needs that the youth may have in other areas. This section contains 38 items that are divided into two subscales, namely Family/ Parents and Youth. In Part IV, evaluators provide their own professional opinion regarding the youth’s level of risk; this is often referred to as the “professional override” section. In Part V, evaluators offer an opinion as to what would be an appropriate level of services for the youth. Lastly, in Part VI, evaluators provide recommendations regarding the youth’s

402

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

case management plan. As the authors caution, high risk/need scores do not indicate that a youth should necessarily be given more punitive dispositions (Hoge, 2005). A number of studies have evaluated the psychometric properties of the YLS/CMI. Studies have indicated that the YLS/CMI has adequate inter-rater agreement and internal consistency (Catchpole & Gretton, 2003; Hoge, 2005; Marczyk, Heilbrun, Lander, & DeMatteo, 2003; Schmidt, Hoge, & Gomes, 2005). In addition, significant correlations have been found between youths’ risk/needs scores on the YLS/CMI and reoffending. Schmidt and colleagues (2005) found the predictive power of the YLS/CMI to be in the “moderate to large range,” as youth who were classified as high-risk on the YLS/CMI exhibited higher rates of recidivism than did those youths classified as low-risk. The YLS/CMI is able to discriminate between youthful offenders and nonoffenders, as well as between youth who are in secure and nonsecure facilities (Hoge, 2005). Also, in support of its convergent validity, it is correlated with ratings of callous/ deceitful traits and conduct problems on the Hare Psychopathy Checklist: Youth Version (Forth, Kosson, & Hare, 2003), and the externalizing behavior problems on the Child Behavior Checklist (Achenbach, 1991a) and the Youth Self Report (Achenbach, 1991b; see Hoge, 2005; Schmidt et al., 2005). In general, the YLS/CMI is a very promising instrument. It provides an empirically validated approach to assessing youths’ risk factors and treatment needs, helps to ensure consistency when evaluating clients, and assists in allocating resources and determining appropriate services and interventions. In comparison to some of the other risk assessment instruments that are currently available, it has been subject to more peer-reviewed research. It is hoped that future research on the YLS/CMI will continue to provide a strong basis on which to evaluate this instrument. Special Populations and Types of Violence The assessment of certain types of violence (e.g., targeted school violence), and violence among certain types of populations (e.g., female adolescents, minority youth, and mentally ill youth) poses some unique challenges and considerations. Some of these challenges and considerations are described below. Targeted School Violence Recently, with widespread concerns about school shootings, there has been a major push for schools to identify youth who may engage in school violence that is targeted at identifiable victims, such as particular students or staff members. At times, mental health professionals are asked to assist school administrators with this task. Rather than examining whether the youth is likely to engage in some type of aggression during adolescence or adulthood, the focus on these evaluations is on whether a youth “currently poses a substantial risk of harm to another identified or identifiable person(s) at school” (Reddy et al., 2001, p. 160). Typical risk assessment approaches appear inappropriate for assessing youths’ risk for targeted school violence. Given that the risk factors for school violence may differ from risk factors for general violence, the use of structured professional judgment tools

Assessing Risk for Violence in Adolescents

403

and actuarial tools that are designed to assess general risk of violence in youth is inadvisable (Borum et al., 2005; Reddy et al., 2001). Also, because targeted school violence such as school shootings are such a rare event, actuarial tools are infeasible. Although some authors have advocated identifying youth who fit the “profile” of previous school shooters (e.g., McGee & DeBernardo, 1999), this approach is likely to result in frequent false positives, which may carry extremely harmful consequences to youth (Mulvey & Cauffman, 2001; Reddy et al., 2001). Experts have argued that the best option for assessing a youth’s risk of targeted school violence may be to use a threat assessment approach (Reddy et al., 2001). Threat assessment was developed by Fein and colleagues at the U.S. Secret Service (Fein, Vossekuil, & Holden 1995). Within this approach, information is gathered about adolescents to assess if they are on a “pathway toward violent action” (Reddy et al., 2001, p. 168). The focus is on assessing the progression of behavior over time, and case-specific factors rather than general nomothetic risk factors (Borum et al., 2005). In particular, evaluators would consider factors such as whether the youth has experienced recent losses (including a loss of status through bullying), shown increased interest in targeted violence, and obtained weapons and means of committing targeted violence (for more information see Reddy et al., 2001). Female Adolescents Official and self-reported rates of violence in female adolescents have increased over the past several decades (Odgers, Moretti, & Reppucci, 2005). With growing concern about female violence, clinicians are more likely to be faced with the task of assessing girls’ risk for violence. Assessing risk of violence in female adolescents may be particularly challenging however. Research using adult samples has indicated that clinicians are less accurate in assessing violence risk in females than males (Lidz, Mulvey, & Gardner, 1993; McNiel & Binder, 1995; Skeem et al., 2005). Also, because most research on violence risk assessment tools has focused on males, it is unclear if these tools are equally as effective in females (Odgers et al., 2005). Although meta-analytic research has indicated that female and male adolescents have similar risk factors for delinquency (Simourd & Andrews, 1994), there appear to be some gender differences in risk factors. For instance, although early age of onset of aggression and delinquency and history of violence are strongly associated with future violence in males, it is unclear whether these variables are equally strong predictors in female adolescents (Odgers et al., 2005). In assessing female adolescents’ risk for violence, past sexual abuse, mental disorders, and insecure attachments may be important to consider (Odgers et al., 2005). Also, given that aggression in females often occurs in the context of relationships with family members and intimate partners (Skeem et al., 2005), clinicians should carefully examine female adolescents’ intimate relationship dynamics. Youth from Racial and Ethnic Minority Groups Youth from racial and ethnic minority groups, including African-American, HispanicAmerican, and Canadian Aboriginal youth, are frequently overrepresented in

404

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

juvenile arrest rates (Snyder & Sickmund, 1995). Therefore, many risk assessments are likely to involve minority youth. In assessing youth from minority groups, clinicians must be especially careful to avoid such biases. Minority youth are often perceived as more dangerous and more likely to reoffend than other youth (Bridges & Steen, 1998; Graham & Lowery, 2004). However, there is no evidence of a causal relationship between race and violence (Office of the Surgeon General, 2001). Clinicians should also strive to use instruments that are appropriate for minority youth. Some studies have suggested that risk factors may be similar for minority and nonminority youth, but other studies have found important differences (e.g., Dembo, Williams, & Schmeidler, 1994). In addition, clinicians should consider cultural contexts, such as poverty, experiences with discrimination, and ethnic identity, in evaluating risk for violence in minority youth. Minority youth may be more likely that nonminority to live in impoverished environments with few supports and limited opportunities, which may heighten risk for violence (Herrenkohl, Hawkins, Chung, Hill, & Battin–Pearson, 2001). Although research has indicated that experiences with racial discrimination are associated with increased risk for violent behavior (Caldwell, Kohn-Wood, SchmeelkCone, Chavous, & Zimmerman, 2004), having a strong ethnic identity may help protect minority youth from engaging in violence and aggression (Jagers & Mock, 1993; Pashall & Hubbard, 1998; Soriano, Rivera, Williams, Daley, & Reznik, 2004). Adolescents with Mental Illness Clinicians may often be requested to evaluate risk of violence among adolescents with mental illness. Because rates of mental disorders are high among adolescent offenders (Teplin, Abram, McClelland, Dulcan, & Mericle, 2002; Wasserman, McReynolds, Lucas, Fisher, & Santos, 2002), many court-requested risk assessments may be with youth who have significant mental health issues. Also, risk assessments may occur with mentally ill youth who are in clinical treatment settings, such as in the context of evaluating an adolescent’s need for inpatient treatment and/or her or his readiness to be discharged to the community. At this time, however, little is known about how to accurately and reliably assess risk of violence among mentally ill adolescents. The psychometric properties of existing risk assessment tools (described earlier) have not specifically been examined among mentally ill adolescents. Also, there are currently no risk assessment tools that have been designed especially for mentally ill adolescents. It may be that risk factors for violence among mentally ill youth and nonmentally ill youth are similar. Research with mentally ill and nonmentally ill adults, for instance, has noted considerable overlap between risk factors for violence, and has emphasized the importance of offense history in predicting violence among both groups (Bonta, Law, & Hanson, 1998). However, mental health factors may also be important to consider in assessing risk of violence among mentally ill adolescents. As described earlier, some studies suggest a link between youth violence and certain types of mental health problems such as ADHD, Depression, and PTSD (Connor, 2002). Based on what is currently known, Grisso (2004) concluded that there is evidence that certain types of mental disorders may contribute to the violent behavior of some youth with mental illnesses. However, it is clear that much of this research is still at a very early stage, and that further knowledge is critically needed before guidelines for clinical practice can be offered.

Assessing Risk for Violence in Adolescents

405

Risk Management Recommendations As described earlier, one important component of risk assessments is to provide recommendations regarding how to manage and prevent risk through interventions. In the past, there was considerable skepticism as to whether interventions could successfully prevent recidivism (Martinson, 1974; Wright & Dixon, 1977). Nowadays, however, there is considerably more optimism. Interventions for juvenile offenders have been found to reduce recidivism rates by an average of 10%, with the most effective interventions reducing recidivism by as much as 20 to 30% (Lipsey, 1992; Lipsey & Wilson, 1998). Programs that target a youth’s particular risk factors and needs tend to report larger effect sizes than more generic approaches (Dowden & Andrews, 1999; Lipsey & Wilson, 1998). Also, family and community-based programs have emerged as being more effective than institutional programs (Lipsey & Wilson, 1998; Mihalic, Irwin, Elliott, Fagan, & Hansen, 2001; Sheidow & Henggeler, 2005). Sheidow and Henggeler (2005) identify three programs, all of which are family and community-based, that have strong empirical support and are considered to be model interventions for juvenile offenders. These include multisystemic therapy, multidimensional treatment foster care, and functional family therapy. In addition to these family-based interventions, cognitive-behavioral therapy has been found to be effective in reducing redividism in juvenile offenders (Garrett, 1985; Lipsey & Wilson, 1998). Cognitive-behavioral interventions appear to be more effective than purely behavioral programs (Izzo & Ross, 1990). Importantly, several intervention strategies have been found to be ineffective or even harmful in treating delinquent youth. Specifically, treatments that are based on improving youth’s self-esteem and increasing fear of punishment, such as the Scared Straight programs, may be associated with increased reoffending (Dowden & Andrews, 1999). Also, peer counseling programs may worsen youths’ behavior, as they may learn to engage in additional deviant behaviors from more deviant peers (Dishion, McCord, & Poulin, 1999; Poulin, Dishion, & Burraston, 2001). In order to further illustrate the process of conducting risk assessment with adolescents, a case example is provided in the following section. This example aims to demonstrate the importance of using empirically-based assessment methods, providing a detailed rationale for conclusions offered, and considering risk management issues.3 Case Example Robert is a 16-year-old European-American male who was admitted for residential treatment following adjudication for Third Degree Sexual Assault on a 6-year-old nephew. The sexual assault on his nephew occurred 6 months prior to admission to the residential treatment program and consisted of fondling and oral sex. There were three separate sexual assaults on the nephew at a grandparent’s home. The victim revealed the assaults to an older brother who then informed the parents. Robert was evaluated by a psychologist following admission to the residential treatment program in order to assist with treatment planning. The psychological evaluation included the use of the J-SOAP-II, ERASOR, and SAVRY. Based on findings from the J-SOAP-II and ERASOR, Robert was rated at “high risk” for sexual violence if returned home to reside with his parents. The youth presented with risk factors listed under the Sexual Drive/Preoccupation subscale of the J-SOAP-II. For example, he presented with multiple sexual abuse victims. Prior to living with the grandparents, he

406

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

was in the home of the biological parents and was charged with molesting a younger brother and sister when Robert was age 13 and the siblings were ages 7 and 9. The sex offenses against his siblings occurred over a period of time lasting greater than 1 year. In addition, Robert had a history of frequently accessing pornography on the internet during adolescence. He did not present with sexualized aggression or history of sexual victimization. When reviewing the results from the ERASOR it was noted that Robert had experienced prior sanctions for molesting the siblings that included receiving outpatient sex offender specific treatment and move to the grandparent’s home. Despite the prior sanctions and treatment interventions, Robert molested the nephew, which was considered a particularly salient risk factor that needed to be addressed in treatment. Under the Psychosocial Functioning subscale of the ERASOR it was noted that the youth presented with social isolation and lack of intimate peer relationships. The grandparents and parents described Robert as being too preoccupied with computer games and avoidant of social activities with peers. In terms of dynamic risk factors he presented with several concerns that included poor understanding of risk factors and multiple cognitive distortions associated with sex offending. In comparison to other juvenile offenders, Robert was assessed at a “low risk” for nonsexual violence or general delinquency. For instance, there was a limited presence of risk ratings under the Impulsive/Antisocial Behavior subscale on the J-SOAP-II. In addition, his risk ratings on the SAVRY were predominately due to the history of sex offending. Robert did not present with risk factors such as exposure to violence in the home, childhood maltreatment, poor parental management, anger management problems, substance abuse, or risk taking/ impulsivity. He was identified with protective factors that included strong and positive attachments to family members, who have been productively involved in his treatment. Robert also presented with a positive attitude towards treatment and treatment staff. In addition, he has performed well in school and is strongly oriented toward academic achievement. To manage Robert’s risk for reoffending, the youth’s treatment plan focused on the development of basic social skills and interventions to address his sexual preoccupations and cognitive distortions. The treatment plan also addressed the need for the youth to develop and practice realistic prevention plans. Family relationships and school were noted as strengths for the youth. Given that youths’ risk for violence may change over time, it was recommended that Robert’s risk be reassessed at six month intervals.

Summary Assessing risk of violence is a difficult task. It is especially difficult to assess risk of future violence in adolescents. Because adolescence is a period of rapid developmental change, the task of assessing future violence is akin to assessing a “moving target” (Grisso, 1998). Although many youth engage in violence during adolescence, many of these youth desist and do not become career criminals, making it difficult to determine which youth will go on to reoffend. In addition, risk assessment of youth may occur in a highly charged arena, in which public fears of youth crime are exaggerated. Recently, a number of tools have been developed to assist clinicians in conducting risk assessments with youth. Although these tools offer clear benefits over unstructured clinical judgments, at the present stage most of these risk assessment tools are in the early stages of research, with few published studies. Therefore, there is a critical need for further research. As research in this area accumulates, clinicians are advised to frequently consult the literature. Given the present limitations in knowledge, clinicians

Assessing Risk for Violence in Adolescents

407

should use caution in assessing youths’ risk of violence, focus on short-term versus long-term predictions of violence, and clearly state the limitations of their knowledge.

Notes 1. Amicus curiae is Latin for “friend of the court.” An amicus curiae brief is written by a party that is not directly involved in the case in order to provide the court with assistance. 2. Recently, Seifert and colleagues (2001) developed the Child and Adolescent Risk of Violence, which is a 49-item standardized rating form for assessing violence in individuals aged 2 to 19. Although this tool is not described here, it may be useful to examine if further research supports its psychometric properties. 3. In order to protect client confidentiality, all identifying information regarding this case was removed and critical case details were extensively altered.

References Achenbach, T. M. (1991a). Manual for the Child Behavior Checklist and 1991 Profile. Burlington, VT: University of Vermont, Department of Psychiatry. Achenbach, T. M. (1991b). Manual for the Youth Self-Report and 1991 Profile. Burlington, VT: University of Vermont, Department of Psychiatry. American Psychological Association and Missouri Psychological Association (2005). Brief as amici curiae supporting the respondent in Roper v. Simmons. Retrieved April 10, 2006 from http://www.apa.org/psyclaw/roper-v-simmons.pdf, http://www.apa.org/psyclaw/ roper-v-simmons.pdf. Andrews, D. A., & Bonta, J. (1995). LSI-R: The Level of Service Inventory–Revised. Toronto, Ontario, Canada: Multi-Health Systems. Andrews, D. A., Robinson, D. & Hoge, R. D. (1984). Manual for the Youth Level of Services Inventory. Ottawa, Ontario: Department of Psychology, Carleton University. Ashford, J. B., & LeCroy, C. W. (1990). Juvenile recidivism: A comparison of three prediction instruments. Adolescence, 25, 441–450. Augimeri, L. K., Koegl, C. J., Levene, K. S., & Webster, C. D. (2005). Early assessment risk lists for boys and girls. In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 295–310). New York: Guildford Press. Augimeri, L. K., Koegl, C.J., Webster, C. D., & Levene, K. (2001). Early Assessment Risk List for Boys: EARL-20B, Version 2. Toronto: Earlscourt Child and Family Centre. Barefoot v. Estelle, 463 US 880 (1983). Barnoski, R., & Markussen, S. (2005). Washington State Juvenile Court Assessment. In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 271–282). New York: Guilford Press. Bartel, P., Forth, A., & Borum, R. (2003). Development and concurrent validation of the Structured Assessment for Violence Risk in Youth (SAVRY). Unpublished manuscript. Battistich, V., & Hom, A. (1997). The relationship between students’ sense of their school as a community and their involvement in problem behaviors. American Journal of Public Health, 87, 1997–2001. Blumstein, A. (2001). Why is crime falling?—Or is it? Perspectives on Crime and Justice Lecture Series. Washington, DC: National Institute of Justice. Bonta, J., M. Law, and K. Hanson. (1998). The Prediction of Criminal and Violent Recidivism Among Mentally Disordered Offenders: A Meta-Analysis. Psychological Bulletin, 123, 123–142.

408

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Borum, R. (1996). Improving the clinical practice of violence risk assessment. American Psychologist, 51, 945–956. Borum, R. (2000). Assessing violence risk among youth. Journal of Clinical Psychology, 56, 1263–1288. Borum, R. (2003). Managing at-risk juvenile offenders in the community: Putting evidencebased principles into practice. Journal of Contemporary Criminal Justice, 19, 114–137. Borum, R., Bartel, P., & Forth, A. (2003). Manual for the Structured Assessment of Violence Risk in Youth, Version 1.1. University of South Florida. Borum, R., Bartel, P. A., & Forth, A. E. (2005). Structured assessment of violence risk in youth. In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 311–323). New York: Guilford Press. Borum, R., Otto, R., & Golding, S. L. (1993). Improving clinical judgement and decision making in forensic evaluations. International Journal of Law and Psychiatry, 21, 35–76. Borum, R., & Verhaagen, D. (2006). Assessing and managing violence risk in juveniles. New York: Guilford. Brennan, P., Mednick, S., & Kandel, E. (1991). Congenital determinants of violent and property offending. In D. J. Pepler & K. H. Rubin (Eds.), The development and treatment of childhood aggression (pp. 81–92). Hillsdale, NJ: Lawrence Erlbaum. Bridges, G. S., & Steen, S. (1998). Racial disparities in official assessments of juvenile offenders: Attributional stereotypes as mediating mechanisms. American Sociological Review, 63, 554–570. Brook, J. S., Whiteman, M., Finch, S. J., & Cohen, P. (1996). Young adult drug use and delinquency: Childhood antecedents and adolescent mediators. Journal of the American Academy of Child and Adolescent Psychiatry, 35, 1584–1592. Bronfenbrenner, U. (1979). The ecology of human development: Experiments by nature and design. Cambridge, MA: Harvard University Press. Butts, J., & Travis, J. (2002). The rise and fall of American youth violence: 1980 to 2000. Washington, D.C.: Justice Policy Center, The Urban Institute. Caldwell, M. F. (2002). What we do not know about juvenile sexual reoffense risk. Child Maltreatment: Journal of the American Professional Society on the Abuse of Children, 7, 291–302. Caldwell, C. H., Kohn-Wood, L. P., Schmeelk-Cone, K. H., Chavous, T. M., & Zimmerman, M. A. (2004). Racial discrimination and racial identity as risk or protective factors for violent behaviors in African American young adults. American Journal of Community Psychology, 33, 91–105. Catchpole, R., & Gretton, H., (2003). The predictive validity of risk assessment with violent young offenders: A 1 year examination of criminal outcome. Criminal Justice & Behavior, 30, 688–708. Cauffman, E., Feldman, S.S., Waterman, J., & Steiner, H. (1998). Posttraumatic stress disorder among female juvenile offenders. Journal of the American Academy of Child and Adolescent Psychiatry, 37, 1209–1217. Cleare, A. J., & Bond, A. J. (1997). Does central serotonergic function correlate inversely with aggression? A study using d-fenfluramine in healthy subjects. Psychiatry Research, 69, 89–95. Coie, J. D., & Miller-Johnson, S. (2001). Peer factors and interventions. In R. Loeber & D.P. Farrington (Eds.), Child delinquents: Development, intervention, and service needs (pp. 191–209). Thousand Oaks, CA: Sage. Connor, D. F. (2002). Aggression and antisocial behavior in children and adolescents: Research and treatment. New York: Guilford. Dawes, R. M., Faust, D., & Meehl, P. E. (1989). Clinical versus actuarial judgment. Science, 243, 1668–1674.

Assessing Risk for Violence in Adolescents

409

Dembo, R., Williams, L., & Schmeidler, J. (1994). Psychosocial, alcohol/other drug use, and delinquency differences between urban Black and White male high risk youth. International Journal of the Addictions, 29, 461–483. Dempster, R. J. (1998). Prediction of sexually violent recidivism: A comparison of risk assessment instruments. Unpublished master’s thesis, Simon Fraser University, Burnaby, British Columbia, Canada. Dishion, T. J., McCord, J., & Poulin, F. (1999). When interventions harm: Peer groups and problem behavior. American Psychologist, 54, 755–764. Dodge, K. A. (1991). The structure and function of reactive and proactive aggression. In D. J. Pepler & K. H. Rubin (Eds.), The development and treatment of childhood aggression (pp. 201–218). Hillsdale, NJ: Lawrence Erlbaum. Dodge, K. A., Murphy, R. R., & Buchsbaum, K. (1984). The assessment of intention-cue detection skills in children: Implications for developmental psychopathology. Child Development, 55, 162–173. Douglas, K., & Kropp, P. R. (2002). A prevention-based paradigm for violence risk assessment: Clinical and research applications. Criminal Justice and Behavior, 2, 617–658. Dowden, C., & Andrews, D. A. (1999). What works in young offender treatment: A metaanalysis. Forum on Corrections Research, 11, 21–24. Edens, J. F., Campbell, J. S., & Weir, J. M. (2007). Youth psychopathy and criminal recidivism: A meta-analysis of the Psychopathy Checklist measures. Law and Human Behavior, 31, 53–75. Elliott, D. S. (1994). Serious violent offenders: Onset, developmental course, and termination— The American Society of Criminology 1993 presidential address. Criminology, 32, 1–21. Elliott, D. S., Ageton, S., Huizinga, D., Knowles, B., & Canter, R. (1983). The prevalence and incidence of delinquent behavior: 1976–1980 (The National Youth Survey Report No. 26). Boulder, CO: Behavioral Research Institute. Elliott, D. S., Huizinga, D., & Menard, S. (1989). Multiple problem youth: Delinquency, substance use and mental health problems. New York: Springer-Verlag. Elliott, D. S., & Menard, S. (1996). Delinquent friends and delinquent behavior: Temporal and developmental patterns. In J. D. Hawkins (Ed.), Delinquency and Crime: Current theories (pp. 28–67). Cambridge, U.K: Cambridge University Press. Enebrink, P., Långström, N., Hultén, A., & Gumpert, C. H. (in press). Swedish validation of the Early Assessment Risk List for Boys (EARL-20B), a decision-aid for use with children presenting with conduct-disordered behaviour. Nordic Journal of Psychiatry. Farrington, D. P. (1989). Early predictors of adolescent aggression and adult violence. Violence and Victims, 4, 79–100. Fein, R. A., Vossekuil, F., & Holden, G. A. (1995). Threat assessment: An approach to prevent targeted violence. National Institute of Justice: Research in Action, 1–7 (NCJ 155000). Retrieved April 10, 2006 from http://www.secretservice.gov/ntac.htm, http://www. secretservice.gov/ntac.htm. Forth, A. E., Kosson, D. S., & Hare, R. D. (2003). The Psychopathy Checklist: Youth Version. Toronto, Ontario: Multi-Health Systems. Garb, H. (1994). Social and clinical judgment: Fraught with error? American Psychologist, 49, 758–759. Garrett, C. (1985). Effects of residential treatment on adjudicated delinquents: A meta-analysis. Journal of Research in Crime and Delinquency, 22, 287–308. Giancola, P. R., Moss, H. B., Martin, C. S., Kirisci, L., & Tarter, R. E. (1996). Executive cognitive functioning predicts reactive aggression in boys at high risk for substance abuse: A prospective study. Alcoholism: Clinical and Experimental Research, 20, 740–744.

410

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Gilles, C., & Jackson, M. (2003). Bill C–7: The new youth criminal justice act: A darker young offenders act? International Journal of Comparative and Applied Criminal Justice, 1, 19–38. Graham, S., & Lowery, B. S. (2004). Priming unconscious racial stereotypes about adolescent offenders. Law and Human Behavior, 28, 483–504. Grisso, T. (1998). Forensic evaluations of juveniles. Sarasota, FL: Professional Resource Exchange. Grisso, T. (2001). Why juvenile justice will survive its centennial. In L. Frost & R. Bonnie (Eds.), The evolution of mental health law (pp. 167–180). Washington, DC: American Psychological Association. Grisso, T. (2004). Double jeopardy: Adolescent offenders with mental disoders. Chicago, IL: University of Chicago Press. Grosz, D. E., Lipschitz, D. S., & Eldar, S. (1994). Correlates of violence risk in hospitalized adolescents. Comprehensive Psychiatry, 35, 296–300. Grove, W. M., & Meehl, P. E. (1996). Comparative efficiency of formal (mechanical, algorithmic) and informal (subjective, impressionistic) prediction procedures: The clinical/ statistical controversy. Psychology, Public Policy & Law, 2, 293–323. Harris, G. T., Rice, M. E., & Quinsey, V. L. (1994). Psychopathy as a taxon: evidence that psychopaths are a discrete class. Journal of Consulting and Clinical Psychology, 62, 387–97. Hawkins, J. D., Herrenkohl, T., Farrington, D. P., Brewer, D., Catalano, R. F., & Harachi, T. W. (1998). A review of predictors of youth violence. In R. Loeber & D. P. Farrington (Eds.), Serious and violent juvenile offenders: Risk factors and successful interventions (pp. 106–146). Thousand Oaks, CA: Sage. Heilbrun, K. (1997). Prediction versus management models relevant to risk assessment: The importance of legal decision-making context. Law and Human Behavior, 21, 347–359. Heilbrun, K., Philipson, J., Berman, L., & Warren, J. (1999). Risk communication: Clinicians’ reported approaches and perceived values. Journal of the American Academy of Psychiatry and the Law, 27, 397–406. Herrenkohl, T. L., Hawkins, J. D., Chung, I., Hill, K. G., & Battin–Pearson, S. (2001). School and community risk factors and interventions. In R. Loeber & D. P. Farrington (Eds.), Child delinquents: Development, intervention, and service needs (pp. 211–246). Thousand Oaks, CA: Sage. Hill, H., Soriano, F., Chen, A., & LaFramboise, T. (1994). Socio-cultural factors in the etiology and prevention of violence among ethnic minority youth. In L. Eron, J. Gentry, P. Schlegel (Eds.), Reason to hope: A psycho-social perspective on violence and youth. Washington, DC: American Psychological Association. Hirschi, T. (1969). Causes of delinquency. Berkeley, CA: University of California Press. Hoge, R. D. (2002). Standardized instruments for assessing risk and need in youthful offenders. Criminal Justice and Behaviour, 29, 380–96. Hoge, R. D. (2005). Youth Level of Services/Case Management Inventory. In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment in juvenile justice (pp. 283–294). New York: Guildford Press. Hoge, R., Andrews, D. A., & Leschied, A. (2002). Youth Level of Service / Case Management Inventory: YLS/CMI Manual. Toronto: MultiHealth Systems. Izzo, R. L., & Ross, R. R. (1990). Meta-analysis of rehabilitation programs for juvenile delinquents: A brief report. Criminal Justice and Behavior, 17, 134–142. Jagers, R., & Mock, L. (1993). Culture and social outcomes among inner-city African-American children: An Afrographic exploration. Journal of Black Psychology, 19, 391–405. Jessor, R., Van Den Bos, J., Vanderryn, J., Costa, F. M., & Turbin, M. S. (1995). Protective factors in adolescent problem behavior: Moderator effects and developmental change. Developmental Psychology, 31, 923–933.

Assessing Risk for Violence in Adolescents

411

Jung, S., & Rawana, E. P. (1999). Risk and need assessment of juvenile offenders. Criminal Justice and Behavior, 26, 69–89. Kent v. United States, 383 US 541 (1966). Knox, M., King, C., Hanna, G. L., Logan, D. & Ghaziuddin, N. (2000). Aggressive behaviour in clinically depressed adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 39, 611–618. Kroner, D. G. (2005). Issues in violent risk assessment: Lessons learned and future directions. Journal of Interpersonal Violence, 20, 231–235. Kropp, P. R., & Hart, S. D. (2000). The Spousal Assault Risk Assessment (SARA) guide: Reliability and validity in adult male offenders. Law and Human Behavior, 24, 101–118. Krug, E. G., Dahlberg, L. L., Mercy, J. A., Zwi, A. B., & Lozano R. (2002). World report on violence and health. Geneva, Switzerland: World Health Organization. Levene, K. S., Augimeri, L. K., Pepler, D. J., Walsh, M. M., Webster, C.D., & Koegl, C. J., & Webster, C. D. (2001). Early Risk Assessment List for Girls—Version 1 Consultation Edition. Toronto: Earlscourt Child and Family Centre. Lidz, C. W., Mulvey, E. P. & Gardner, W. (1993). The accuracy of predictions of violence to others. Journal of the American Medical Association, 269, 1007–1111. Lipsey, M. W. (1992). The effect of treatment of juvenile delinquents: Results from metaanalysis. In F. Losel, D. Bender, & T. Bliesener (Eds.), Psychology and law: International perspectives (pp. 131–143). New York: Walter de Gruyter. Lipsey, M. W., & Derzon, J. H. (1988). Predictors of violent or serious delinquency in adolescence and early adulthood: A synthesis of longitudinal research. In R. Loeber & D. P. Farrington (Eds.), Serious and violent juvenile offenders: Risk factors and successful interventions (pp. 86–105). Thousand Oaks, CA: Sage. Lipsey, M. W., & Wilson, D. B. (1998). Effective intervention for serious juvenile offenders: A synthesis of research. In R. Loeber & D. P. Farrington (Eds.), Serious & violent juvenile offenders: Risk factors and successful interventions (pp. 313–345). Thousand Oaks, CA: Sage. Loeber, R. (1982). The stability of antisocial and delinquent child behavior: A review. Psychological Bulletin, 94, 68–99. Loeber, R., & Stouthamer-Loeber, M. (1998). Development of juvenile aggression and violence: Some common misconceptions and controversies. American Psychologist, 53, 242–259. Lynam, D., Moffitt, T., & Stouthamer-Loeber, M. (1993). Explaining the relation between IQ and delinquency: Class, race, test motivation, school failure, or self-control? Journal of Abnormal Psychology, 102, 187–196. Maguin, E., & Loeber, R. (1996). Academic performance and delinquency. In M. Tonry (Ed.), Crime and justice: A review of research (pp. 145–264). Chicago, IL: University of Chicago Press. Marczyk, G. R., Heilbrun, K., Lander, T., & DeMatteo, D. (2003). Predicting juvenile recidivism with the PCL:YV, MAYSI, and YLS/CMI. International Journal of Forensic Mental Health, 2, 7–18. Martinson, R. (1974). What works? Questions and answers about prison reform. The Public Interest, 35, 22–54. McBurnett, K., Lahey, B. B., Capasso, L., & Loeber, R. (1996). Aggressive symptoms and salivary cortisol in clinic-referred boys with conduct disorder. Annals of the New York Academy of Sciences, 794, 169–179. McCann, J. T. (1998). Malingering and deception in adolescents: Assessing credibility in clinical and forensic settings. Washington, DC: American Psychology Association. McCord, J. (1979). Some child-rearing antecedents of criminal behavior in adult men. Journal of Personality and Social Psychology, 37, 1477–1486. McCord, J., & Ensminger, M. (1995, November). Pathways from aggressive childhood to criminality. Paper presented at the American Society of Criminology, Boston, MA.

412

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

McEachran, A. (2001). The predictive validity of the PCL-YV and the SAVRY in a population of adolescent offenders. Unpublished master’s thesis. Simon Fraser University, Burnaby, British Columbia, Canada. McGee, J. P., & DeBernardo, C. R. (1999). The classroom avenger: A behavioral profile of school based shootings. Forensic Examiner, 8, 16–18. McNeil, D. E., & Binder, R. L. (1995). Correlates of accuracy in the assessment of psychiatric inpatients’ risk of violence. American Journal of Psychiatry, 152, 901–906. Menzies, R. J., Webster, C. D., McMain, S., Staley, S., & Scaglione, R. (1994). The dimensions of dangerousness revisited: Assessing forensic predictions about violence. Law and Human Behavior, 18, 1–28. Mihalic, S., Irwin, K., Elliott, D., Fagan, A., & Hansen, D. (2001). Blueprints for violence prevention. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Moffitt, T. E. (1993). Adolescence-limited and life-course-persistent antisocial behavior: A developmental taxonomy. Psychological Review, 100, 674–701. Moffitt, T. E., & Caspi, A. (2001). Childhood predictors differentiate life-course persistent and adolescence-limited antisocial pathways among males and females. Development and Psychopathology, 13, 355–373. Moffitt, T. E., Caspi, A., Harrington, H., & Milne, B. J. (2002). Males on the life-coursepersistent and adolescence-limited antisocial pathways: Follow up at age 26 years. Development and Psychopathology, 14, 197–207. Monahan, J. (1981). Predicting violent behaviour: An assessment of clinical techniques. Beverly Hills, CA: Sage. Monahan, J. (1992). Mental disorder and violence behavior: Perceptions and evidence. American Psychologist, 47, 511–521. Mulvey, E. P., & Cauffman, E. (2001). The inherent limits of predicting school violence. American Psychologist, 56, 797–802. Odgers, C. L., Moretti, M. M., & Reppucci, N. D. (2005). Examining the science and practice of violence risk assessment with female adolescents. Law and Human Behavior, 29, 7–27. Office of the Surgeon General (2001). Youth violence: A report of the surgeon general. Washington, DC: U.S. Department of Health and Human Services, Office of the Secretary, Office of Public Health and Science, Office of the Surgeon General. Retrieved April 10, 2006 from http://www.surgeongeneral.gov/library/youthviolence, www.surgeongeneral.gov/ library/youthviolence. Otto, R. (1992). The prediction of dangerous behavior: A review and analysis of “second generation” research. Forensic Reports, 5, 103–133. Paschall, M. J., & Hubbard, M. L. (1998). Effects of neighborhood and family stressors on African-American male adolescents’ self-worth and propensity for violent behavior. Journal of Consulting and Clinical Psychology, 66, 825–831. Penney, S., Catchpole, R. E. H., Moretti, M. M., & Bartel, P. (2005, March). The Structured Assessment of Violence Risk in Youth: A step towards construct validation in a Sample of high-risk youths. Paper presented at the Annual Meeting of the American PsychologyLaw Society, La Jolla, California. Poulin, F., Dishion, T. J., & Burraston, B. (2001). 3-year iatrogenic effects associated with aggregating high-risk adolescents in cognitive-behavioral preventive interventions. Applied Developmental Science, 5, 214–224. Prentky, R. A., Harris, B., Frizzell, K., & Righthand, S. (2000). An actuarial procedure for assessing risk with juvenile sex offenders. Sexual Abuse: A Journal of Research and Treatment, 12, 71–93.

Assessing Risk for Violence in Adolescents

413

Prentky, R., & Righthand, S. (2003). Juvenile Sex Offender Assessment Protocol II (J-SOAP-II) Manual. Washington D.C.: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Raine, A. (1997). Antisocial behavior and psychophysiology: A biological perspective and prefrontal dysfunction hypothesis. In D. M. Stoff, J. Breiling, & J. D. Maser (Eds.), Handbook of antisocial behavior (pp. 289–304). Hoboken, NJ: Wiley. Raine, A., Brennan, P., & Mednick, S. A. (1994). Birth complications combined with early maternal rejection at age 1 year predispose to violent crime at age 18 years. Archives of General Psychiatry, 53, 544–549. Redding, R. E., Goldstein, N. E. S., & Heilbrun, K. (2005). Juvenile delinquency: Past and present. In K. Heilbrun, N. E. S. Goldstein, & R. Redding, (Eds.), Juvenile delinquency: Prevention, assessment, and intervention (pp. 3–18). New York: Oxford University Press. Reddy, M., Borum, R., Berglund, J., Vossekuil, B, Fein, R., & Modzeleski, W. (2001). Evaluating risk for targeted violence in schools: Comparing risk assessment, threat assessment, and other approaches. Psychology in the Schools, 38, 157–172. Righthand, S., Prentky, R., Knight, R., Carpenter, E., Hecker, J. E., & Nangle, D. (2005). Factor structure and validation of the Juvenile Sex Offender Assessment Protocol (J-SOAP). Sexual Abuse: Journal of Research and Treatment, 17, 13–30. Rogers, R., Vitacco, M. J., Jackson, R. L., Martin, M., Collins, M., & Sewell, K. W. (2002). Faking psychopathy? An examination of response styles with antisocial youth. Journal of Personality Assessment, 78, 31–46. Roper v. Simmons, 543 U.S. 551 (2005). Salekin, R., & Grimes, R.D. (2007). Clinical forensic evaluations for juvenile transfer to adult criminal court. In R. L. Jackson (Ed.), Learning Forensic Assessment, (313–346). New York: Erlbaum. Salekin, R., & Debus (2007). Assessing child and adolescent psychopathy. In R. L. Jackson (Ed.), Learning Forensic Assessment, (347–384). New York: Erlbaum. Sampson, R. J., & Lauritsen, J. L. (1994). Violent victimization and offending: Individual, situational and community level risk factors. In A. J. Reiss & J. Roth (Eds.), Understanding and Preventing Violence (Vol. 3, pp. 1–114). Washington, D.C.: National Academy Press. Schmidt, R., Hoge, D., & Gomes, L. (2005). Reliability and validity analyses of the Youth Level of Service/Case Management Inventory. Criminal Justice and Behavior, 32, 329–344. Seagrave, D., & Grisso, T. (2002). Adolescent development and the measurement of juvenile psychopathy. Law and Human Behavior, 26, 219–239. Séguin, J. T., Pihl, R. O., Harden, P. W., Tremblay, R. E., & Boulerice, B. (1995). Cognitive and neuropsychological characteristics of physically aggressive boys. Journal of Abnormal Psychology, 104, 614–624. Seifert, K., Phillips, S., & Parker, S. (2001). Child and Adolescent Risk for Violence (CARV): A tool to assess juvenile risk. Journal of Psychiatry and Law, 29, 329–346. Sheidow, A. J., & Henggeler, S. W. (2005). Community-based treatments. In K. Heilbrun, N. E. Goldstein & R. E. Redding (Eds.), Juvenile delinquency: Prevention, assessment, and intervention (pp. 257–281). New York: Oxford. Simourd, L. & Andrews, D. A. (1994). Correlates of delinquency: A look at gender differences. Forum on Corrections, 6, 26–31. Skeem, J., Mulvey, E., Odgers, C., Schubert, C., Stowman, S., Gardner, W., & Lidz, C. (2005). What do clinicians expect? Comparing envisioned and reported violence for male and female patients. Journal of Consulting and Clinical Psychology, 73, 599–609. Simons, R. L., Wu, C. I., Conger, R. D., & Lorenz, F. O. (1994). Two routes to delinquency differences between early and late starters in the impact of parenting and deviant peers. Criminology, 32, 247–275.

414

Jodi L. Viljoen, Natasha Elkovitch, and Daniel Ullman

Smith, C., & Thornberry, T. P. (1995). The relationship between childhood maltreatment and adolescent involvement in delinquency. Criminology, 33, 451–481. Snyder, H. N., & Sickmund, M. (1995). Juvenile offenders and victims: A national report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Snyder, H. N., Sickmund, M., & Poe-Yamagata, E. (1996). Juvenile offenders and victims: 1996 update on violence. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention. Snyder, H. N. (2004). Juvenile arrests 2002. Washington, DC: Office of Juvenile Justice and Delinquency Prevention. Soriano, F. I., Rivera, L. M., Williams, K.J., Daley, S.P., & Reznik, V.M. (2004). Navigating between cultures: The role of culture in youth violence. Journal of Adolescent Health, 34, 169–176. Stattin, H., & Magnusson, D. (1989). The role of early aggressive behavior in the frequency, seriousness, and types of later crime. Journal of Consulting and Clinical Psychology, 57, 710–718. Steiner, H., Garcia, I., & Matthews, Z. (1997). Posttraumatic stress disorder in incarcerated adolescents. Journal of the American Academy of Child and Adolescent Psychiatry, 36, 357–365. Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976). Teplin, L. A., Abram, K. M., McClelland, G. M., Dulcan, M. K., & Mericle, A. A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 59, 1133–1143. Thornberry, T. P., Huizinga, D., & Loeber, R. (1995). The prevention of serious delinquency and violence: Implications from the program of research on the causes and correlates of delinquency. In J. C. Howell, B. Krisberg, J. D. Hawkins, & J. Wilson (Eds.), Sourcebook on serious, violent and chronic juvenile offenders (pp. 213–237). Thousand Oaks, CA: Sage. Trivits, L. C., & Reppucci, N. D. (2002). Application of Megan’s law to juveniles. American Psychologist, 57, 690–704. Vincent, G. M. (2006). Psychopathy and violence risk assessment in youth. Child and Adolescent Psychiatric Clinics of North America, 15, 407–428. Vincent, G., & Grisso, T. (2005). A developmental perspective on adolescent personality, psychopathology, and delinquency. In T. Grisso, G. Vincent, and D. Seagrave (Eds.), Mental Health Screening and Assessment in Juvenile Justice (pp. 44–70). New York: Guilford. Warr, M. (1996). Organization and instigation in delinquent groups. Criminology, 34, 11–37. Wasserman, G. A., McReynolds, L. S., Lucas, C. P., Fisher, P., & Santos, L. (2002). The voice DISC-IV with incarcerated male youths: Prevalence of disorder. Journal of the American Academy of Child and Adolescent Psychiatry, 41, 314–321. Webster, C. D., Müller-Isberner, R., & Fransson, G. (2002). Violence risk assessment: Using structured clinical guides professionally. International Journal of Forensic Mental Health, 1, 185–193. White, H. R., Loeber, R., Stouthamer-Loeber, M., & Farrington, D. P. (1999). Developmental associations between substance use and violence. Development and Psychopathology, 11, 785–803. Widom, C. S. (1989). The cycle of violence. Science, 244, 160–166. Worling, J. R. (2004). The Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR): Preliminary psychometric data. Sexual Abuse: Journal of Research and Treatment, 16, 235–254. Worling, J. R., & Curwen, T. (2001). Estimate of Risk of Adolescent Sexual Offense Recidivism, Version 2.0. Toronto, ON: Ontario Ministry of Community and Social Services. Wright, W. E., & Dixon, M. C. (1977). Community prevention and treatment of juvenile delinquency: A review of evaluation studies. Journal of Research in Crime and Delinquency, 14, 35–67.

IV Civil Forensic Assessment

415

16 Child Custody Evaluations Elizabeth Ellis

When Richard Gardner’s textbook, Family Evaluation in Child Custody Litigation, appeared in 1982, it filled a vital need in the growing divorce industry. It came at a time which capped off a decade of surging divorce rates and the gradual involvement of psychologists and psychiatrists as experts to assist the court in making custodial decisions about the children of these divorces. The passage of the first “no fault” divorce law in California in 1969 is often used as a marker to gauge the beginning of the divorce revolution in the United States. Prior to that time, divorce was rather infrequent, and the party seeking the divorce had to obtain the divorce by proving the other party had engaged in morally egregious behavior—adultery, desertion, physical or mental abuse, drunkenness, drug addiction, imprisonment, or insanity. With the passage of no-fault divorce laws all over the country, divorces were much easier to obtain and did not carry the rancor and moral stigma that they had prior to that time. Demographer Paul Glick (1979) noted that the proportion of children living with only one parent doubled between 1960 and 1978, from 9% to 18.6%. He predicted that the number would increase to 25% by 1990. He estimated that the proportion of children whose parents would divorce before they turned 18 was about 28% in 1976 (as compared with 12.6% in 1960), and that it would rise to 33% by 1990. In the early years of the 1970s custodial decisions were rather straightforward. The mother, who was predominantly a homemaker in that era, was awarded primary custody of the children, and the father, who was invariably the primary breadwinner, was ordered to pay child support and given alternate weekends with the children. The courts, in making these awards, were said to be guided by the tender years presumption, that is, the presumption that mothers know best how to care for children, particularly young children, and were therefore presumed to be the better custodial parent. By the mid-’70s, however, following on the heels of the women’s movement, the first judicial opinions began to be handed down in regard to gender equity—the recognition of mothers and fathers as equals before the law with regard to custodial considerations (Derdeyn, 1976). A 1974 Illinois opinion stated, “Equality of the sexes has entered this field. The fact that a mother is fit is only one facet of the situation, and standing by itself, it does not authorize a denial of custody to the father” (Marcus v. Marcus, 1974). This change in the status of fathers before the court thus opened up the possibility that fathers might be successful in obtaining custody of their children in a divorce action, or even years after the divorce. This opened the flood-gates of litigation, and thus new roles were created for 417

418

Elizabeth Ellis

mental health practitioners to provide expert evaluations in these cases. Many states began to adopt the guidelines of the Uniform Marriage and Divorce Act, which was written in 1970 and passed by the American Bar Association in 1973. Section 402 of that act specifies that the court consider these relevant factors: • • • • •

Wishes of the child Wishes of the parents Interaction of the child with parents and siblings Child’s adjustment to home, school, and community Mental and physical health of all persons involved

Richard Gardner, a New York psychiatrist, was one of the experts in the forefront of this field, and his basic approach to custody evaluations is still used for the framework of most custody evaluations today. Gardner argued that the expert should be impartial, that he or she should be appointed by the court. He strongly advised against the use of advocates or hired guns—experts retained by one parent to evaluate that person and recommend them for custody. He also strongly advised against the therapist—for the parent, child, couple, or family—getting involved in such an evaluation as it compromised the therapeutic role, violated the patient’s confidentiality, and impeached the therapist’s integrity. Gardner argued that the role of the custody evaluator was to assess each person’s parenting capacity. By this he meant the parent’s ability to meet the child’s basic needs, to have a healthy bond with the child, to provide stability, to use appropriate discipline, and to promote the child’s best interests over those of the parent. Gardner’s model for the evaluation revolved around four elements: interviews with the parents, interviews with the child, sifting through documents and questionnaires, and the interviewing of outside people who knew the family and who had important information relevant to the custodial issues at hand. He set the model for lengthy final reports that organized a large volume of material, set forth each parent’s assets and liabilities, and made a clear and concise recommendation to the court as to where the children should live. Gardner was trained as a psychoanalyst, and he also favored the use of projective drawings, the interpretation of dreams, and the exploration of each parent’s relationship with his or her own parents in his understanding of what each parent had to offer in the way of a healthy relationship with their own children. Though the movement toward gay rights had also come into full swing by the time of Gardner’s book, he broke ranks with his colleagues and argued that homosexual men did have a psychiatric disorder and should not be considered for custody of their children. During the 1980s, the courts continued to tear down what had been categorical barriers to custody of children. Freed and Foster (1981) found that by the 1980s the tender years doctrine had been struck down in 37 states. The courts also began to rule that the parent’s income could not be used to determine custody, nor the parent’s religious faith or lack of church involvement. Soon sexual orientation was struck down as a basis for denying a parent custody, though it is still considered a factor in some jurisdictions. Even the race of the parent in the case of a mixed race child was struck down as a basis for custody. Today, the parent’s health or physical disability, per se, is not to be considered the basis for custody awards in most jurisdictions, though it can be considered as one of many factors. Though the fact that a parent committed

Child Custody Evaluations

419

adultery was considered an act of immorality in the 1960s and a basis for losing custody of the children in that era, by the 1980s adultery, as well, was disallowed in most jurisdictions as a basis for custodial decisions. The net effect on the way the courts awarded custody of the children, by the end of the decade, was that the award was to be based on the totality of a range of rather subtle psychological factors. In most states the primary legal standard to which the court was to adhere was “the best interests of the children.” This standard is necessarily very broad and subjective. Some states adopted more specific guidelines than the Uniform Marriage and Divorce Act, such as these from the state of Michigan (Foster & Freed, 1973–1974), requiring consideration of: 1. The love, affection, and other emotional ties existing between the parents and the child. 2. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in his or her religion or creed, if any 3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs 4. The length of time that the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity 5. The permanence as a family unit of existing or proposed custodial home or homes 6. Moral fitness of the parties involved 7. Mental and physical health of the parties involved 8. Home, school, and community record of the child 9. Reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference 10. Any other factor considered by the court to be relevant to a particular child custody dispute (Foster & Freed, 1973–1974). Updating their review of child custody laws in the 1980s, Freed and Walker (1988) found that 31 states had statutory guidelines delineating the basis for custody decisions that were similar to the Michigan statute, and that many states had added the following factor: 11. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent–child relationship between the child and the other parent.

1980–1989 Over the decade of the 1980s, the work of conducting custody evaluations became the province of psychologists, more so than other mental health providers, given their background in testing and assessment, and their expertise (compared to psychiatrists, for example) at measuring psychological factors such as emotional stability, the emotional bonds that exist between each parent and child, the capacity of the parent to give “guidance,” and the willingness of the parent to allow the child to have a positive relationship with the other parent. Thus, psychologists carved out the work of custody evaluations as a clear specialty, and the use of psychological testing proliferated as a feature of these evaluations. Keilin and Bloom (1986), surveying 82 mental health professionals who conducted custody evaluations (80% of whom were psychologists), found that 71% used the MMPI-2, 41% used the Rorschach inkblots, 38% used the Thematic Apperception Test, and 29% used the Wechsler Adult

420

Elizabeth Ellis

Intelligence Scale with parents. The tests used most frequently with children who were being assessed were intelligence tests (45%), the Children’s Apperception Test (39%), the Rorschach inkblots (29%), and various projective drawing tests such as the draw-a-person test and the house–tree–person test (33%). In Keilin and Bloom’s survey, the evaluations done at that time took an average of 18.8 hours of work and cost an average of $965. The basic elements of a custody evaluation also grew in complexity over the course of the 1980s. Schutz, Dixon, Lindenberger, and Ruther (1989) recommended the use of parent–child observation sessions, and this practice is considered standard today. Schutz et al. included a list of suggested activities for the parent–child observation sessions and provided a rating scale for the observations in order to improve the objectivity and impartiality of the observations. As did Gardner in 1982, Schutz et al. recommended the use of a comprehensive questionnaire for each parent to complete, detailing the parent’s background and their parenting practices. These questionnaires still serve a useful purpose in information gathering at the outset of a custody evaluation. During this time judges, guardians, and custody evaluators also began to develop more standard guidelines for custodial decisions, though, at times, the factors used by judges and the factors used by mental health professionals have not been congruent with each other. Keilin and Bloom (1986) asked their evaluators to rank order 24 factors in importance when making a custody recommendation. The top seven in order were: (1) the wishes of the child, age 15 or older, (2) the parent’s attempts to alienate the child from the other parent, (3) the parent with whom the child has the closer emotional bond, (4) the parent who seems more psychologically stable, (5) the parent who has the better parenting skills, (6) the parent who is more likely to allow the child access to the other parent, and (7) the parent who had primary caretaking responsibilities prior to the divorce. Though the fact of the parent’s sexual orientation had been struck down in most states as a basis for denying child custody, the evaluators gave this factor a ranking of ninth place. They gave little weight to the gender of the parent and child (19th place), whether the parent was cohabiting with another adult (17th place), and the age of the parent (21st place). Although mental health professionals make recommendations to the court in custody cases, they have no authority over the outcome of the case. It is the judge who will rule on the matter, using his/her own discretion, personal outlook on divorce and family matters, experience, and broad interpretation of the “best interests” standard. Do judges and attorneys agree with mental health professionals on what are the most important factors to consider? To this end, Lowery (1981), surveyed 80 judges and commissioners as to 20 factors which they might consider in making a custodial decision. She found that six factors accounted for half the variance in the sample. These were: (a) a sense of responsibility toward the child, (b) mental stability, (c) ability to provide access to schools, (d) ability to provide continuing involvement in the community, (e) moral character, and (f) financial sufficiency. They gave the least weight to keeping a child with the parent of the same sex. In a third study, Reidy, Silver, and Carlson (1989) conducted a survey of 156 judges in the superior courts of California. The judges considered the wishes of adolescents age 15 or older as most important, followed by the recommendation of the guardian ad litem for the children, and the parents’ testimony. These judges rated the

Child Custody Evaluations

421

importance of the report of the court-appointed psychologist as fourth. The judges were then asked to rank 24 variables in order of importance—the same variables that were used in the Keilin and Bloom (1986) survey of custody evaluators. The good news is that the same seven variables appeared at the top of both lists, indicating a good degree of congruence between the two groups. However, there were wide discrepancies between the valuations of the expressed wishes of 5-year-old and 10-yearold children, with mental health professionals giving much more weight to them. The judges were also more likely to favor a single parent over one that was cohabiting (compared to the rankings of the mental health professionals), and to favor remarried parents over single parents, reflecting perhaps a more socially conservative outlook. If one parent had moved away, and the other parent remained in the home, half the judges would award custody to the parent who remained in the family home, reflecting a stronger bias toward minimizing changes. Last was the issue of sexual orientation. Although mental health professionals ranked it 32nd in order of importance in the Keilin and Bloom study, the judges said they would rule otherwise. Fully 71% of the judges said that if one parent was homosexual, they would award custody to the other parent.

1990–1999 As psychologists developed the work of custody evaluations into a new specialty, with more standard procedures, more tests, and measurements, and closer agreement with each other and the court in approximating a basis for custodial recommendations, they began to be sued for malpractice in greater numbers as well. Although some ethics complaints and lawsuits had merit, many did not. This came as a shock to many competent professionals practicing in this specialty. Unlike the psychologist who has sexual relations with a patient—knowing full well that that behavior is morally and ethically sanctioned—the custody evaluator may do excellent work, yet still be sued by the aggrieved parent. Thus, the field of custody evaluations deservedly earned the reputation as a dangerous specialty in which to practice. The report of the Ethics Committee for 1988 (APA, 1990) listed complaints regarding custody evaluations that year as constituting the second highest category after sexual improprieties with clients. Complaints against custody evaluators continued to edge up in the late 1990s. The report from the ethics committee for 1996 (APA, 1997) again listed child custody complaints in second place after sexual misconduct. It is easy to understand why this area represents such a minefield for psychologists. The parent who goes to court to wage a war over custody of the children is fighting for the asset that is most important to their lives—the care and control of their children. The adversarial process is tedious, stressful, and very expensive. In order to present a case, the parent must marshal all the resources possible—emotional, physical, and financial—to vilify the other parent and to put themselves in the most positive light. Much emotional distortion occurs in this process. The parent may deplete their savings, their retirement account, even borrow against the equity in the family home to do so. At the end of the battle, one parent will be victor, and one will be the vanquished. The vanquished parent will feel abandoned, devastated, and betrayed.

422

Elizabeth Ellis

Eric Harris (Harris, Bennett, & Remar, 1997), who is the ethics consultant to APA members, gave the example of a custody evaluator in Denver who recommended custody for the mother in a divorce case, only to be systematically attacked with not one but a plague of lawsuits. The father who lost his bid for custody was himself an attorney. It seems he not only sued the evaluator but went to the county courthouse, searched the records of all the evaluator’s previous cases, and approached each of the aggrieved parents in those cases. He was successful in persuading numerous parents to file malpractice suits against the evaluator by drawing up the documents for them free of charge. Custody evaluator Ben Schutz, one of the authors of Solomon’s Sword (Schutz et al., 1989), reported that the three other authors of the text had all stopped practicing in the area of child custody due to lawsuits and board complaints (B. Schutz, personal communication, March, 1999). By the beginning of the 1990s, the steep rise in number of ethical complaints against custody evaluators led to the formation of task forces in several states around the country, who met with the goal of forming ethical standards that would hopefully regulate the field. Between 1986 and 1993 standards were drafted in Nebraska, Oklahoma, Georgia, North Carolina, and New Jersey. Such standards were intended to not only raise the quality of custody evaluations to a higher standard and to decrease the number of genuine ethical infractions, but also shield from lawsuits those evaluators who adhered to the guidelines. These state and regional guidelines were reviewed at the national level and eventually merged into the APA’s Guidelines for Child Custody Evaluations in Divorce Proceedings, published in July of 1994 (APA, 1994). It has not been altered since that time and still serves as the model for ethical guidelines to follow in custody evaluations today. Every custody evaluator would do well to have a copy close at hand. The following is a brief outline of this three-page document.

General Purpose The purpose of the custody evaluation is to assess the best psychological interests of the child. The focus of the evaluation is on three factors: parenting capacity, the psychological and developmental needs of the child, and the resulting fit between those two elements.

General Guidelines The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance. The psychologist gains specialized competence. This section advises the psychologist to become knowledgeable in the areas of psychological assessments of children, adults, and families; child and family development; child and family psychopathology; the impact of divorce on children; applicable legal standards; and state laws governing divorce and custody adjudications. The psychologist is aware of personal and societal biases and engages in nondiscriminatory practice. This section cautions the psychologist against bias due to the parent’s

Child Custody Evaluations

423

age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language, culture, and socioeconomic status. The psychologist avoids multiple relationships. This section advises the therapist not to engage in making custodial recommendations to the court.

Procedural Guidelines The psychologist must be clear about the scope and limitations of the evaluation. This section describes several types of evaluations: a full custody evaluation, a fitness evaluation of one parent, a critique of another evaluator’s report, or the role of expert to the court on a special topic, without evaluating the parties in the case. The psychologist obtains informed consent from the adults in the case, but also assent from the children, congruent with their ages and maturity level. The psychologist also is careful to inform the parents, and the children, about the limits on the confidentiality of their remarks and their records. The psychologist is careful to use multiple methods of data gathering and to form conclusions only on the basis of at least two, preferably more, sources of information. The psychologist neither over interprets nor inappropriately interprets clinical or assessment data. This section cautions the psychologist particularly against making broad or sweeping conclusions that are not supported by the data. The psychologist does not give any opinion of the psychological functioning of any individual who has not been personally evaluated. The guideline was included to caution evaluators against the practice of making clinical opinions about individuals in the family based only on hearsay, or the statements of other persons. The psychologist is cautioned to be careful in making a recommendation of custody to the court. This section acknowledges that the field had not reached consensus on the practice of whether the evaluator should go beyond merely assessing the assets and liabilities of the parent, or gathering data on six, seven, or ten of the most relevant factors, on the one hand, or to venture into the offering of an opinion on custodial placement. This section acknowledges the controversy over this matter, because the opinion on custody is considered an ultimate issue, or one for the court to make, not the expert. The psychologist clarifies financial arrangements in advance. The psychologist maintains written records that are thorough and organized and in keeping with standards in the field. The psychologist is cautioned to be mindful that the records may be subject to review by other professionals.

Whereas the publication of the Guidelines for Child Custody Evaluations by the APA was a milestone in the field of child custody work, other groups around the country were also convening to publish guidelines in related areas as the field continued to specialize and standards were developed. Child custody evaluators were held to the same standards as those of other forensic psychologists, governed by the Specialty Guidelines for Forensic Psychologists (APA, 1991). The American Academy of Family Mediators published Standards of Practice for Divorce and Family Mediation (1998), and the Association of Family and Conciliation Courts published Model Standards of Practice for Child Custody Evaluations (1994.). The American Academy

424

Elizabeth Ellis

of Child and Adolescent Psychiatry published Practice Parameters for Child custody Evaluations in 1997. Sexual abuse allegations became a common feature of child custody evaluations in the 1980s and 1990s, and the evaluations were given standards by the American Professional Society on the Abuse of Children (APSAC; 1997) with Guidelines for Psychological Evaluation of Suspected Abuse in Young Children. The APSAC also published Practice Guidelines—Use of Anatomical Dolls in Child Sexual Abuse Assessment (1995). Those clinicians practicing in this field would do well to obtain copies of these documents, which still serve as guides to sound methods and ethical procedures. In the 1990s, Ackerman and Ackerman (1997) repeated the Keilin and Bloom (1986) survey of child custody evaluators, surveying 201 doctoral level psychologists. They found that the average number of hours for a custody evaluation had grown from 18.8 to 26.4 hours. The average cost had risen as well, from $965 to $2,646. (The range of fees for the entire evaluation was from $650 to $15,000). The use of psychological tests had increased (possibly reflecting the use of an all-psychologist sample). By that time 92% of the evaluators gave the parents the MMPI-2, and they did so 91% of the time. Roughly half the evaluators also used the Wechsler Adult Intelligence Scale, the Millon Clinical Multiaxial Inventory, the Rorschach, and the Thematic Apperception Test, and those evaluators did so with a majority of the parents. Similarly, 22% of the evaluators used the Sentence Completion Test 88% of the time, and 9% used figure drawings in 88% of their evaluations. The test which saw the greatest increase in use was the Millon Clinical Multiaxial Inventory, a measure of personality disorders. In terms of assessing children, Ackerman and Ackerman (1997) found that about half the evaluators were using the Wechsler Intelligence Scales for Children–III and the Children’s Apperception Test. They used them in about half the cases. A fraction of the evaluators used projective drawing techniques, but when they did, they used them in the majority of cases. The use of the Bender Gestalt Test dropped dramatically. The 1990s also saw the development of new tests that were specifically to be used in child custody cases. Barry Bricklin (1995) introduced the largest group of measures during this decade. He developed the Parent Awareness Skills Survey (PASS) to measure parenting ability and the Parent Perception of Child Profile (PPCP), a measure also to be given to parents. Bricklin also developed the Perception of Relationships Test (PORT), a series of drawing tasks that purport to indicate the child’s level of attachment to both parents. The Bricklin Perceptual Skills (BPS) is a set of descriptive statements that are presented to the child. Then the child is asked to rate each parent on each descriptor by making a mark on a line. The reviews of these tests have found scant reliability and validity for them, and the custody evaluator is advised to use them only to gather clinical impressions, not as the basis of conclusions (see: Ellis, 2000, pp. 124–127, for reviews of each test individually; see also Kelley, 1995). Evaluators began to turn to existing measures of parenting capacity in hopes of finding sound measures to use in custody evaluations. Schutz et al. (1989) reviewed the tests in existence at that time and concluded, “We found no tests that directly measure the domain of functional parent abilities” (p. 69). Grisso (1986) evaluated ten parenting measures that had been developed at that time and concluded that none fully addressed the issue of measuring parenting capacity. He also concluded

Child Custody Evaluations

425

that none had been validated in such a way that one could predict that those parents who had high scores on the test would be shown to be better parents at some future date than those parents who had low scores on the test. One scale which was developed in the 1990s and which has been validated is the Parent Child Relationship Inventory (PCRI; Gerard, 1994). This 78-item scale was developed to measure parents’ attitudes toward their children and toward their role as parents. Validation studies indicated that high scores were associated with parents’ use of good discipline. Low scores were typical of parents referred for court-ordered mediation and those at risk for child abuse. Heinze and Grisso (1996) reviewed the research on the PCRI and concluded that it had good reliability and moderate validity. Marchant and Paulsen (1998) concluded that the PCRI was “well conceived and well developed, and fills a much needed role in both research and clinical assessment” (p. 271). The other measure which has some validity is the Parenting Stress Index (PSI; Abidin, 1990). This scale was developed particularly for use with parents who have a child who presents with serious medical or behavioral problems. It assesses the type and severity of stress associated with the child, the presence of other stressors in the parent’s life, and the interaction between the two. The intent of the scale was to identify families at risk for child abuse. Heinze and Grisso (1996) gave the PSI high marks for reliability and validity. The scales also dovetail somewhat with the requirements of the APA standards on the goals of the custody evaluation. The Child domain consists of temperament variables such as adaptability, demandingness, mood, and distractibility/hyperactivity, a well as how enjoyable the child is to the parent. The Parent domain measures at-risk factors such as depression, sense of competence, level of attachment to the child, spousal support, parental health, level of role constriction, and social isolation. Like the PCRI, the PSI can only be scored for one child at a time. Also, its use is limited to those cases where the child’s health and behavior are a serious concern and a major focus of the evaluation. Along with parenting measures, some clinicians and researchers in the field sought to develop measures that would yield a quantifiable score for each parent and thus a clear and concise way to arrive at a recommendation to the court. One would simply gather data, compile it into a scoring system, and the parent with the higher score would be recommended to be the primary custodial parent. Typical of these are the Ackerman–Schoenderf Scales for Parent Evaluation of Custody (ASPECT; Ackerman, 1995). All of these scales have been found to be seriously lacking in validity and should not be used in custody evaluations. Melton (1995) concluded “clinicians who use the ASPECT are not likely to improve the quality and ethical propriety of their work. Instead, the ASPECT incorporates and exacerbates most of the problems that have attracted commentators’ criticism” (p. 22). Heinze and Grisso (1996) reviewed the ASPECT and concluded that normative and validity data were inadequate. They stated, “It is unknown whether ASPECT scores are related to the quality of parenting” (p. 97). Custody evaluations, by their very nature, are extraordinarily complex. Not one person is assessed, but often three, four, or more family members, the stepparents, stepsiblings, and extended family members. Likewise, the interrelationships of all the people in the family are also under the scrutiny of the custody evaluator, the closeness of those relationships, as well as the establishment of appropriate

426

Elizabeth Ellis

boundaries in those relationships. The evaluator must also consider not just one variable, such as mental ability, or occupational functioning, but a wide range of variables such as personality, temperament, empathy, and parenting skill. Add to this mix the injection of acrimonious allegations—of physical, mental, or sexual abuse, “brainwashing the children,” betrayal and infidelity, parental neglect or abandonment, and it is easily seen that this material cannot be simply entered into a formula with a resulting quantifiable score. This factor brings up another development in the child custody field—the specialization of evaluations. In the 1980s it was common to be asked to evaluate couples who could be described as well-functioning parents with low levels of conflict. Over the course of the 1990s these couples were seen less and less. Those couples appeared to be settling out of court more often with the aid of new programs instituted by the courts: divorce adjustment classes for parents, court appointed mediators (or private mediators), or the investigation and recommendation of the guardian ad litem (GAL) appointed by the court. This writer has seen a shift in types of cases which are referred to the custody evaluator over the last 10 years. The trend now is toward more complex and challenging cases that involve serious psychopathology on the part of the parents, severe levels of conflict, and resistance to all forms of out-of-court settlement. They also tend to be cases that have been the subject of repeated litigation in the courts. The custody evaluator is now called in more often to be an expert on issues that are beyond the expertise of mediators and guardians. As a reflection of this trend, Philip Stahl’s text, Complex Issues in Child Custody Evaluations (1999) focused on four specialized areas: (a) alienation and alignment of children, (b) domestic violence, (c) allegations of sexual abuse, and (d) move-away evaluations. The custody evaluator entering the courtroom at the present time should be well read in each of these areas. For that reason, brief summaries will be offered about the relevance of each area to custody cases. The issue of the alignment of the children with one parent against the other, or even the complete alienation of the child or children from one parent, is perhaps the most frequently encountered of the special topics. It refers to the behavior of those children who maintain extreme fear of and hostility toward a parent (invariably the noncustodial parent), though there is no substantive evidence to establish a basis for that reaction. Psychiatrist Richard Gardner (1987, 1992) actually coined the term parental alienation syndrome and viewed this problem as largely one in which children became allied with the mother against the noncustodial father. He attributed this to the mother’s direct efforts to promote this alienation and saw it as arising out of her fear of losing the children’s loyalty. Johnston (1993), and other researchers associated with her, avoided the term syndrome and preferred to speak of children in alignments. They saw this phenomenon as the natural outcome of the child’s attempt to cope with the stress of interparental conflict. The best and most recent review of the subject is the special edition of Family and Conciliation Courts Review (2001), which contains a body of seminal writing on the subject. Although parental alienation still does not have the scientific validity of a syndrome, it is a phenomenon that is seen often in family court. Attorneys tend to favor the older version of the term as conceptualized by Gardner, in which the one parent is held at fault. The courts thus often ask the expert to address the question, “Has this parent

Child Custody Evaluations

427

brainwashed the child?” Important questions for the court that the custody evaluator should be prepared to address are: Is the child/ren’s alienation a result of extreme distress and the need to take sides in order to reduce that stress? Or, is one parent solely at fault for this problem? If so, can that parent be rehabilitated and ultimately foster a better relationship between the children and the other parent? If not, should the children be forced to have contact with the other parent, despite their fear and hostility? Or is a change of custody to the alienated parent warranted, or would it be too traumatic for the child? Under what conditions is a change of custody in the best interests of the children? The best criteria established to date are those of Sullivan and Kelly (2001). They reasoned that a change of custody is warranted under the following conditions: (a) Where there is “severe clinical pathology in the residential parent,” (b) where the residential parent is making “repeated and unsubstantiated allegations of abuse” toward the alienated parent, (c) where the alienating parent has repeatedly refused to comply with court orders regarding contact between the child and the alienated parent, and (d) where the child is exhibiting “severe psychological dysfunction,” and the child’s emotional well-being is clearly deteriorating, and/or the child’s disordered behavior is worsening (see p. 312 of Sullivan and Kelly). Change of custody is generally not warranted where the child is functioning reasonably well in most domains or where the alienated parent may not be equipped to take on a primary parent role. For a comprehensive guide to assessing children for parental alienation, see Ellis (in press). Domestic violence is a second important specialty topic for the custody evaluator. Johnston and Campbell (1988; 1993), Johnston (1994), and Johnston and Roseby (1997) have established that high-conflict divorces are often marked by a history of domestic violence. Their extensive body of work has documented the impact of severe conflict on children and the difficulties of resolving postdivorce conflicts among these parents. In view of this fact, accusations are often made at the time of the divorce that the other parent is “abusive” toward the children or that the children have been made to witness the abuse of one spouse by the other. Such accusations, in this writer’s experience, are easy to make and difficult to disprove. Many marital disputes deteriorate into loud confrontations as a marriage is deteriorating and moving toward separation. It is easy to exaggerate the actions of one of the parents and call him or her “violent.” If the police were not called, there is no police report on file. If the neighbors did not see or hear the dispute, there may be no witness other than small children. The custody evaluator must answer questions such as: Did domestic violence occur in this marriage? If there was domestic violence, was it brief in scope and due to escalating hostility on the part of both parents? Or was it chronic in nature, unprovoked, and directed by one spouse toward all the members of the family? What is the level of risk for either parent to become abusive toward the children or toward the ex-spouse in the future? What interventions can be put in place to reduce this risk? MMPI-2 scales that reflect high level of hostility, such as scales 4 and 6, may be useful indicators that confirm a pattern of hostile orientation toward others. However, they are only a starting point. The custody evaluator must sift carefully through the interviews with the parents, interview the children, and interview a wide range of collateral witnesses, to come to some determination about the parent’s level of risk to the child. The third area of specialty is sexual abuse allegations. Typically, these are allegations made by the mother against the father, or by the father against a male stepparent

428

Elizabeth Ellis

or stepsibling in the mother’s home, and they concern a small child who is too young to be interviewed. Like the allegation of “abusiveness” or “anger management problems,” these allegations are easy to make and difficult to disprove, as there is often no physical evidence, and there are no witnesses other than a small child. In the 1980’s, allegations of sexual abuse were fairly common in contested child custody cases. For example, Guyer and Ash (1986), who saw over 400 cases over a 5-yearperiod, noted that about 33% involved child sexual abuse allegations. Wakefield and Underwager (1991) who specialize in evaluating cases of child sexual abuse, followed over 500 cases over a 6-year period and found that 40% of the cases arose out of child custody conflicts. Child custody evaluators have found high rates of false allegations of sexual abuse in cases in which the allegation is first made at the time of the parent’s separation and divorce conflict. In the study by Wakefield and Underwager above, they concluded that 75% were false allegations or were unsubstantiated. Of the 160 cases evaluated by Thoennes and Tjaden (1990), 33% were determined to be false allegations and another 17% were inconclusive. This writer has seen a trend toward a decrease in the frequency of sexual abuse allegations over the last 10 years, as the courts have become rightfully more suspicious of the motives of parents who make accusations of sexual abuse. Though half or more of the sexual abuse allegations that arise in custody conflicts may be false, nevertheless, they are of such a serious nature, that each allegation must be fully investigated by the courts. Where the child is young and thus cannot communicate outcry, often contact between the accused parent and child comes to a complete halt while the courts spend months, even years, fully investigating the allegation. Stahl’s (1999) chapter is a good review of this area as well as the review by Ellis (2000). The custody evaluator should be well versed in the subject matter of the use of anatomical dolls for these evaluations and the unreliability of children’s statements in sexual abuse cases. Good resources in this area are: Assessing Allegations of Child Sexual Abuse by Kuehnle (1996) and Expert Witnesses in Child Abuse Cases by Ceci and Hembrooke (1998). The last area of specialized custody evaluations is that of the relocation case, or the “move away” case. These cases are common in view of the fact that a majority of parents make major life transitions following divorce. They go back to work full time, they remarry, they move away for a variety of reasons. Some moves are clearly made out of a desire to improve the quality of the children’s lives—for a better home or better schools, to live with family and have more support with childcare, to avoid a dangerous ex-spouse. Some moves are neutral with regard to whether they benefit the child—for example, the move to another city in order for the parent to remarry or pursue a career. The gains the moving parent receives are offset by the loss to the child of the left behind parent. Also, the children are subjected to long and arduous travel from one home to the other. Added to this are the increased costs of transportation and often the litigation costs involved when the left behind parent goes to court, seeking to block the move. And some moves are clearly detrimental to the children. These include moves made to cut off the children’s contact with the other parent. Even in cases where the custodial parent may give one of the above reasons for the move and offer it as benefiting the children, the nonmoving parent asserts that the move is, in reality, a “spite” move.

Child Custody Evaluations

429

The court’s charge is to evaluate the reasons for the move and the impact of the move on the children, again using the “best interests” standard. Attorney Jonathan Levine (1999) offers five guidelines usually considered by the courts: 1. The reason for the move. The courts favor clear indications that the move will improve the quality of life of the parent and children, may assent to moves that are unavoidable, and view with disfavor those moves that clearly put an undue hardship on the noncustodial parent. 2. The continued relationship between the child and the noncustodial parent. The courts tend to favor the parent who has cooperated with previous court orders and who has supported an ongoing relationship between the children and the nonresidential parent. 3. The impact on the child. The court will favor the move if the moving parent has carefully considered the impact of the move on the children. For example, the moving parent might delay the move to the end of the school year, and allow older children, for example, to be involved in the decision process. 4. The parent’s flexibility in making changes in the financial arrangements between the two parents. For example, the courts may favor the moving parent who is willing to accept reduced child support or pay for the transportation costs, or who is willing to agree to giving up a large percentage of holiday and summer residential time to the non-moving parent. 5. The child’s wishes, given the adolescent is of legal age to make an election of parental custody.

Some of the above issues for the court to review are fairly straightforward and can be settled out of court by the attorneys. Other issues, such as the parent’s motives for the move and the impact on the child, are more subtle. It is these issues the custody evaluator must be prepared to fully explore. Gindes (1998) suggested the evaluator assess five key factors in a move away case; Stahl (1999) proposed a set of 12 factors to consider. In general, these authors agree that important factors to consider are: the strength and quality of the attachment of the child to the primary parent, the emotional stability of the primary parent, the level of involvement of the noncustodial parent, the child’s special needs and temperament, the losses involved to the child and the meaning of those losses, and the level of inter-parental conflict between the parents that has existed and whether the move would result in a lessening of conflict or an increase in conflict. Austin (2000a, 2000b) has proposed a “risk assessment” model for custody evaluators. In this model, the evaluator would essentially delineate the pluses and minuses for the child if he/she moves with the primary parent, and the pluses and minuses for the child if he/she transfers custody to the parent who is remaining in the same geographic area. For an overview of the various approaches to a move away evaluation the reader is referred to Ellis (2001). As in many areas of forensic psychology, the law is evolving as opinions are given by the courts, and the evaluator would do well to stay abreast of case law in the relevant areas of specialty. In the relocation case law the courts, throughout the 1970s, 1980s, and 1990s, usually ruled in favor of the primary custodial parent. The courts’ reasoning was that the primary parent had the strongest bond with the child, thus allowing the parent to move at will and take the children with him/her was in the best interests of the children as it preserved that fundamental relationship. An important case to be aware of is In re Marriage of Burgess (1996). Psychologists Wallerstein and Tanke (1996) wrote an argument for the case based on their years of research with families

430

Elizabeth Ellis

of divorce. Arguing for the rights of the custodial parent to move at will, their brief is essentially a “pro- mothers” document. However, Warshak (2000b), who is known for his research on the importance of fathers in children’s lives, wrote a well crafted rebuttal to the Burgess argument. He presents evidence of the importance of fathers’ visitations with the children, provided the fathers are engaged in meaningful and instrumental roles in the children’s lives. The trend at this time is that all move- away cases will be treated as essentially the same as first-time custody cases. All factors will be considered and neither parent has an automatic advantage. 2000 to the present This brings us to the 21st century and the current state of custody evaluations. This continues to be an area dominated by psychologists in private practice as opposed to child psychiatrists and psychiatric social workers. Bow and Quinnell (2001) have conducted the most recent survey of custody evaluators, receiving completed surveys from 198 custody evaluators. They found that the evaluators had an average of 23 years of experience in the mental health field with 13.5 years in the child custody field. The vast majority of the group (76%) had had training in both adult and child clinical work. The majority of evaluations (86%) were court ordered, and they took an average of 28.5 hours of work to complete for a family of two adults and two children. The hourly rate of the evaluators was $144.00, though the range was astonishing, varying from $75 per hour on the low end to $400 per hour on the high end. The average cost for an evaluation that involved two parents and two children was $3,335 in 2001, with a range from $600 to $15,000. The components of a custody evaluation remain much the same as it did in previous years, though a higher percentage of evaluators used structured tasks during the parent–child observation than did so in the Ackerman and Ackerman (1997) study. Thirty-three percent of the evaluators stated that they include home visits at least some of the time. When asked if they make direct recommendations to the court as to primary custody of the children, 97% responded “yes” and only 3% responded “no.” This is a higher percentage that in past surveys and may indicate that the overwhelming preference of the court is that the evaluator make a clear recommendation. Have the components of a custody evaluation been standardized? The answer to that question is “somewhat.” Horvath, Logan, and Walker (2002) culled the court records of a jurisdiction in Kentucky that relied heavily on custody evaluations done by the office of the Friend of the Court (FOC), a social service component of the court that conducted evaluations at little to no cost to the clients. They culled out the evaluations which did not meet minimal standards and examined 102 evaluations which did—80% of which were done by social workers and 20% of which were done by private psychologists. These authors found that 84% of the evaluations relied on two methods of data gathering, 59% relied on three, and 33% used four methods of gathering data. Eighty nine percent evaluated the mother, with interviews of several hours, and 93% did so with the father. Sixty three percent observed the mother and child interacting, and 61% observed the father and child. Interviewing live-in companions and stepparents appears to have become standard, as 95% interviewed father’s new partner, and 88% interviewed mother’s new partner. Fully 84% of the evaluators assessed the stability of the current living situation.

Child Custody Evaluations

431

In view of the fact that the participants in this study were predominantly social workers, it is not surprising that a minority (18%) did psychological testing of the parents, and 12% did psychological testing of the child. Thirty two percent of the evaluators made home visits. The evaluators did interview collateral witnesses, though clearly this was not the case in each evaluation and depended on the allegations to be addressed. Thirty-two percent of the evaluators interviewed mental health counselors, 24.5% interviewed teachers, 10% interviewed daycare workers, and 9% interviewed physicians and/or nurses. The components of the evaluation varied by the background of the professional conducting the evaluation. FOC social workers were more likely to evaluate parenting skills, to interview other relatives as well as teachers, and to make home visits. Private social workers as well were more likely to make home visits. The private psychologists were more likely to rely on psychological testing, to review the parents’ and children’s medical records, and to do parent–child observations. The area of child custody evaluations continues to be a dangerous area of practice for psychologists in terms of lawsuits and licensing board complaints, perhaps more so now than in the 1980s and 1990s. In 1999 the APA Ethics Committee reported that, for the previous year, complaints against custody evaluators made up 11% of their cases, second only to sexual misconduct, which covered 58% of complaints. Glassman (1998) attempted to gather information from state and regional boards at that time— the groups who field the vast majority of complaints against psychologists—and found the information too limited to analyze. However, Kirkland and Kirkland (2001) were able to obtain completed surveys from 34 state and provincial boards who were questioned about the number of complaints lodged against custody evaluators for the decade of 1990 to August of 1999, and the adjudication of those complaints. Their sample yielded a total of 2,413 complaints (1,660 in California, alone). Of particular concern, however, were the outcomes of the cases. Only 27 cases, or 1% of the total, resulted in a finding of fault against the psychologist. Thus, 99% of the complaints were frivolous or made out of spite. Even in the cases of a finding of fault, the type of discipline meted out was typically mild—a requirement for more supervision or continuing education. These figures support the authors’ statement that “child custody evaluations are among the most dangerous and risky endeavors for psychologists, owing to high levels of stress, threat of litigation, risk of board complaints, and even the possibility of physical harm” (p. 171). The trend through the 1980s and 1990s has been toward increasingly complex and specialized evaluations by increasingly more experienced and highly trained psychologists who produce longer and more costly evaluations. Along with this trend has been a simultaneous thrust over the last decade toward more scientific accountability and research based opinions. In the late 1970s or early 1980s it was common for the evaluator to make a recommendation to the court based on “my years of clinical experience” or “my gut feelings about this family.” Melton et al. (1997) in their reference text on forensic evaluations stated, “There is probably no forensic question on which overreaching by mental health professionals has been so common and so egregious” (p. 484). At the close of the 1990s two new books appeared: Jonathan Gould’s Conducting Scientifically Crafted Custody Evaluations (1998) and Galatzer-Levy and Kraus’ The Scientific Basis of Child Custody Decisions (1999). It is notable that the

432

Elizabeth Ellis

word “scientific” was used in the title of these two texts—a term that would not have been used in the 1980s. In their introduction, Galatzer-Levy and Kraus noted that a common problem in family court cases is not so much the “hired gun” who will promote any opinion for a price but the well meaning clinician who “presents pet theories and personal prejudices as scientific fact” (p. 6). These clinicians may sincerely believe they are promoting scientifically established opinions when there is, in fact, no basis in the research literature for their conclusions. (See Maxim #7 for a fuller list of “pet theories.”) Galatzer-Levy and Kraus’ approach toward custody evaluations in the 21st century reflects the state of the art at this time, and that is that the evaluator be thoroughly trained as both a perceptive clinician and a behavioral scientist. The 19 chapters reflect a range of special topics that reflect the research scholarship that has occurred over the last 30 years. For example, Chapter 16, titled “The Best Interest of Gay and Lesbian Parents,” lists 148 references, of which 138 studies were published since 1980. Chapter 18, a review of research on the success (and failure) of joint custody has a reference list of 113 books and papers, all published since 1979. In 2004, Haworth Press published the first edition of a new journal, the Journal of Child Custody, signaling perhaps that the field has become so broad and so complex that the experts in this field needed a forum in which to exchange ideas. In volume 1, issue number 3, Phillip Stahl presented “A 20-Year Personal Perspective on Child Custody Evaluations.” He summarized his years of experience in this field by observing that there has been a dramatic growth in the number of resources for evaluators, and that there have been shifts in his own perspective on a number of topics, based on the now-large scientific literature that has accumulated. Unlike the early 1980s, there are a number of good texts on the subject of custody evaluations, there are established guidelines for ethical procedures, and many state legislatures now even mandate the components of a good custody evaluation (see his discussion of California’s Rules of Court). The Association of Family and Conciliation Courts holds biannual conferences on child custody evaluations and has dedicated several issues of its journal, Family and Conciliation Courts Review, to special topics, such as custody evaluations (summer, 2000) and parental alienation (summer, 2001). He also noted that the Internet has affected the work of custody evaluators in that they can now participate in a listserv. Thus, evaluators can consult with colleagues in a timely way and experienced evaluators can serve as mentors for the less experienced professional. Stahl also noted that with the development of more research, evaluators such as himself have seen shifts in thinking regarding several areas. In the area of domestic violence, we now have a typology of different types of domestic violence, we can distinguish the violent marriage from the high conflict divorce, and we know more about the impact on children of witnessing domestic violence (Johnston & Campbell, 1993; Bancroft & Silverman, 2002). Also, we have moved away from simple explanations of parental alienation and evolved theories that describe a range of dynamics (e.g., Kelly and Johnston, 2001). We now know more about the conditions under which joint custody is advantageous (Bauserman, 2002). Also, outdated formulas for overnight visitations for young children have been supplanted by more complex proposals (e.g., Kelly & Lamb, 2000; Pruett, Ebling, & Insabella, 2004; Warshak, 2000a). Finally, Stahl noted that even our language has changed in many regions. The terms custody and visitation, implying the possession of objects or brief visits,

Child Custody Evaluations

433

or even suggesting a superior role and an inferior role, have been replaced by terms such as parenting plans or parenting rights and responsibilities. Kelly (2006), summarizing recent developments in the field of child custody, noted that the courts have been moving progressively toward a nearly equal division of the child’s time between both parents, regardless of gender, where both parents are willing and adequate parents. She argued that this is in the best interests of the child, even the very young child, as it promotes bonding and attachment between the child and both parents. She stirred some controversy with the argument that the issue of which parent has the stronger bond with the child at the time of the parents’ separation no longer be used as a criterion for making custody arrangements. (Recall that this was the third most important category cited by evaluators in the Keilin and Bloom [1986] study). She reasoned that this is an outmoded factor that favors stay-at-home mothers unfairly over working fathers and is based on roles the parents had prior to the separation. As parental roles will most likely change following the divorce (mother will go to work, father will be involved in more direct caregiving), reference to previous roles is moot.

Guidelines for Evaluations The following is a list of pointers that will assist the evaluator in conducting a topnotch evaluation.

Maxim # I: Keep Detailed Records of All That You Do Each case begins with a phone call. It is important from the outset to pull out a log sheet and write down the date of the call, who made the call, and the content of the discussion. In other words, keep detailed records. Child custody cases entail a very large amount of information gathered from a wide variety of sources and over a lengthy span of time. A large percentage of these cases result in the examiner having to give testimony in court. Thus, the record is likely to be subjected to a very critical review by the two attorneys, the guardian ad litem (GAL), or special master, as well as the judge. I learned this tip from the eminent forensic psychologist, Ted Blau at a seminar given by him many years ago. A simple solution is to draw up a form with columns and rows that serves as a log. The examiner should record each phone call received and made, each packet of documents received, who sent them, and when they were reviewed. Each interview should be listed, along with who was present and how long the interview was held. Bills sent to the parties and payments received are often the subject of court dispute and should be listed as well. Phone interviews with collateral witnesses should be listed, with notes as to the time of day the interview was held, and how long the interview was. The log should note when audiotapes and videotapes are reviewed and when documents were read. Meticulous record keeping is in accord with the Specialty Guidelines for Forensic Psychologists. Section VI B. reads “When forensic psychologists conduct an examination

434

Elizabeth Ellis

or engage in the treatment of a party to a legal proceeding, with foreknowledge that their professional services will be used in an adjudicative forum, they incur a special responsibility to provide the best documentation possible under the circumstances.” Adherence to this dictum provides some protection to the evaluator if he/she is charged with failing to complete the evaluation in a timely manner, failure to request documents, or failure to return phone calls. It also provides a record for the court of refusal to cooperate on the part of one of the parents, e.g., failure to pay the bill, failure to return phone calls, failure to keep appointments, and failure to submit documents in a timely manner. It also provides a detailed record of all the services that were rendered, if one of the parties questions the bill he/she receives.

Maxim #2: Have Clear Documentation as to Your Fees and Consent Procedures Assuming you have begun your log and made your notations, you will be expected to answer questions about fees and contracts. What to charge? Naturally this varies widely from one geographic area to another and from one psychologist to another. However, there are published surveys in the literature every 5 to 10 years that reflect the current and prevailing rates and procedures. The Bow and Quinnell (2001) study provides a national average, but the survey occurred 5 years ago, so naturally fees have risen. The rule of thumb in forensic work is often to charge one and a half times your clinical rate for evaluation time and two times the clinical rate for court testimony (but see Connell, Chapter 3, this volume for an alternative recommendation). Most custody evaluators charge for their time in the manner in which attorneys do. That is, they charge for many services that require the expert’s time, not just for face-to-face interviews. For this reason, you may want to expand your library of services in your billing software. You will want to include categories such as: review of records, observation of parent and child, phone conference with GAL, phone interviews with collateral witnesses, review of videotape, review of documents, observation of parent/child outside the office, psychological testing with report, legal deposition, courtroom testimony, etc. Prior to beginning the evaluation, several forms of documentation need to be in place. The first is the court order. The parties and their attorneys have contacted you because they have been ordered to do so by the court. Alternatively, the parties entered into an agreement out of court for the evaluation, and the judge signed the consent. Either way, there is a document that contains important information to have before beginning. One piece of information is the case number. This is the number given the case by the court, and it should go on your report. Also, the court order indicates which court and which judge is ultimately going to hear the case and render the decision. The order may specifically compel the parties to cooperate by providing access to various witnesses and documents. The order may further spell out who is to pay for the evaluation. Finally, the court order may specify who is to get copies of the report, and it may indicate an end date when the parties are to return to court for a final hearing. The second document is the contract for services. This document is important as it outlines what is expected of the parent and the evaluator. The contract should be clear

Child Custody Evaluations

435

in stating that the evaluation is not to be construed as treatment in any way and to make the parent aware that there is no doctor/patient privilege as to their remarks and documents. This is an important point and one that should be reviewed verbally with the client as well. Many parents will sign the contract yet come to the first appointment stating, “I’m here for family counseling.” In the course of the evaluation, the parent may say, “This remark is off the record,” or “Don’t write this down . . . ” They should be told at the outset that all remarks will be recorded, and no remark is off the record. The parent may also state, “I’m going to show you this letter my husband wrote, but I don’t want you to tell him I’ve got it.” Again, you must state at the outset that all remarks and documents will be recorded and reviewed, and this information may be made known to all the parties in the case—the parents, the attorneys, the GAL, and the judge. Even though the parent signs the contract, you may want to make additional notations in your records such as, “Client gave informed consent verbally. States she understands that she waives her privilege.” A second issue is the informed consent of the children. Many evaluators may omit this procedure, given that the children are not in treatment and that their parents hold the privilege anyway. However, this is important. Often the parents in custody cases have told the children, “Everything you say to the counselor is private. They won’t tell anyone what you say.” Later, when the child’s statements are disclosed in the report or in the courtroom, the disgruntled parent may confront the child in a punitive manner for having made those statements. The child may feel betrayed. Thus, the evaluator should draw up a form for older children to read, discuss, and sign. With younger children the evaluator may simply discuss with the child the fact that you are not a “counselor,” you are an investigator, that remarks are not “private” and that the parents may learn of the remarks. If the child expresses anxiety about this, you may want to discuss this fact with the GAL or with the court, so that the parents can be cautioned not to take punitive measures against the child. Lastly, is the issue of the collateral witnesses. People such as the teacher, the daycare worker, the pediatrician, a distant family member in another state, the former nanny, the housekeeper, the neighbor, the supervisor or coworker, are most likely going to be interviewed by phone. These people, as well, may assume that, because you are a mental health clinician, their remarks are protected. It is wise to explain to them the nature of your task—that you are an investigator for the court, not a family therapist—and that their remarks are not privileged.

Maxim #3: Be Organized, Focused, and Deliberate in Your Gathering of Information This maxim addresses one of the most common criticisms of custody evaluations; that is, that they are overly long, disorganized, vague, rambling, and come to no clear conclusion as to the central issues before the court. This is attributable in large part to the nature of custody evaluations. For example, a forensic examiner in a criminal case may be asked to address the question: “Is the defendant competent enough to aid in his own defense at trial?” The question before the court in a custody case may

436

Elizabeth Ellis

be viewed by the evaluator as broadly as, “What are the best interests of these four children now and for the foreseeable future?” In view of this overly vague question, it is easy to see how the evaluator may gather a great deal of information on topics that are irrelevant to the issues at hand, and have trouble organizing the information in a coherent way. Galatzer-Levy and Ostrov (1999) note that custody evaluators often gather too much information that is irrelevant to the central issues before the court, and too little information on the most pertinent issues. For this reason, the evaluator would do well to gather information as to why this evaluation was ordered by the court, or why the parties agreed to undergo the evaluation. Typically, the request for the evaluation grew out of a series of allegations that one or both parents made against the other parent’s fitness to care for the children. Also, the allegations must have been fairly serious for the judge to agree to the court order. Therefore, knowledge about the allegations is a good starting point for focusing your evaluation. This can be done by phone interviews with the attorneys in which they explain what the allegations are in the case. An alternative method is to ask the attorneys to submit a letter with bullet points that summarize their client’s allegations about the other parent as well as their client’s responses to the other parent’s allegations. Another source of information is the GAL or special master in the case. This person is neutral, was most likely in the courtroom at the time the parties agreed to the evaluation, and can summarize the central allegations in the case. Benjamin and Gollan (2003) take the very thorough approach of having each parent fill out a form as to each allegation. These evaluators use two forms, one called “Allegations About the Parent or Caretaker” and one called “List of Child- Focused Allegations.” Each form is to be completed by the parent as to each allegation. First, the type of allegations is listed, then the parent is asked to give evidence to support each allegation. Once the evaluator has gathered sufficient information about the particular allegations that have been made in this dispute—whether through phone interviews, letters from the attorneys, or forms that are filled out by the parents, the information can be organized in two ways to guide the evaluation. One way is simply to list them. For example: Ms. P. alleges that Mr. P. has a pattern of violent rages toward her and the children stemming from a neurological disorder, and that the children fear for their safety when they are with him. Mr. P. alleges that Ms. P. has a pattern of controlling the children’s contacts with him, his family, and people outside the family; that she has paranoid tendencies; that she has an enmeshed relationship with the children; and that she has used his neurological illness to seek to alienate the children from him.

A more succinct way is to incorporate the allegations into a series of questions. For example: Does Mr. P. have a neurological disorder at this time? Did Mr. P.’s neurological disorder predispose him to violent tendencies? Is there evidence that Mr. P. has a history of violent rages toward his family? Are there conditions under which Mr. P. may be at an elevated risk of having violent rages toward his family in the future?

If so, are there interventions which could be made to decrease this risk?

Child Custody Evaluations

437

Does Ms. P. have a history of limiting the children’s contacts with their father, his family, and other people to a degree that is detrimental to the children? Does Ms. P. have a history of paranoid thinking that has affected her judgment or behavior? Does Ms. P. have an enmeshed relationship with the children? If so, has this caused harm to the children’s natural development of independence?

The reader can see that these questions, if addressed by the evaluator, will aid the court immensely in reaching its decision. These questions should guide the entire evaluation, unless new information is uncovered that is very relevant to the “best interests of the child” and which has not been uncovered in the legal proceedings to that point. The interviews, the testing, the review of documents, and the gathering of information from collaterals should all focus on these central questions. At the conclusion of the report, the evaluator should provide answers to these questions.

Maxim #4: Have a Working Knowledge of Family Law in Your State Psychologists who enter the arena of the court are well advised to take courses from time to time on family law in their home state. This can be done easily by contacting the local bar association and asking for information about continuing education courses in family law. These courses not only review general information for the attorney newly in practice, but they update experienced attorneys in recent changes in the law. The differences in the practice of psychology and the practice of the law are great, and the psychologist practicing in the area of custody evaluations often fails to appreciate this. The psychologist is charged with integrating a large body of information from theory, research, and clinical experience in order to make reasoned predictions about human behavior. The judge in a family dispute is not the arbiter of morality (as one judge explained to this writer) but is charged with ruling on the law. The two may be in conflict with each other. The custody evaluator should be well versed in special topics in family law that come before the evaluator. For example, the evaluator should be well versed in laws regarding relocation of the custodial parent. In some states, in order to move legally with the children, the moving parent has to give proper notice, and anticipate a hearing in which they will have the burden of proving that the move is in the best interests of the child. The custody evaluator should also be familiar with the statutes regarding change of custody. Many evaluations arise out of a parent’s contention that conditions in the primary custodial parent’s home are not ideal, or are less ideal than in the home of the parent who petitions the court for custody. However, the statute specifies that there must be a substantial change of circumstances (downward) in the custodial parent’s home to warrant the substantial disruption in stability to the children that is involved in a change of custody. The evaluator should know what “circumstances” the court finds relevant, and what the court considers to be “substantial.” The evaluator may find that poor conditions exist for the children in the home of parent A, and that parent B offers a better home, but that the conditions do not constitute a substantial change of circumstances.

438

Elizabeth Ellis

The evaluator should also be very familiar with the state statutes governing the age of election of custodial parent. At what age are the wishes of the adolescent prevailing in a custodial decision? Is the adolescent sufficiently mature and competent? What conditions of “fitness” must the chosen parent satisfy? At what age does the child have the right to make his/her wishes known to the court? At what age must the court consider the child’s wishes in determining its ruling? Here in Georgia, the answer is “age eleven.” How does one determine if an 11- year-old is sufficiently mature and has the language skills to make his or her needs known to the court? Maxim #5: Choose Your Psychological Test Battery Carefully Many custody evaluators give a large battery of psychological tests to the participant parents—perhaps because they are comfortable with psychological testing, perhaps because they assume that the court expects them to, perhaps because they view tests as objective and scientific. Nevertheless, Melton et al. (1997) stated that most of the tests used in custody evaluations are only indirectly related to issues of parenting capacity and that they had a very limited use in custody evaluations. Brodzinsky (1993), although acknowledging that specific tests may be used to answer a specific question, stated “psychologists routinely misuse test data in this type of evaluation (pp. 213–214).” In their survey, Ackerman and Ackerman (1997) found that 92% of their custody evaluators gave the MMPI-2 to the parents, and that they did so about 91% of the time. This seems reasonable in that the MMPI-2 is the gold standard in the field with regard to scientific validity. When a valid and elevated profile is obtained, it may yield some broad information about the psychopathology of the individual parent—information that may be relevant to the questions/allegations at hand. However, even the MMPI-2 is problematic in custody cases. Many researchers have noted that parents in custody cases tend to have high scores on the L and K scales. This is not surprising in view of the fact that parents seeking custody of their children are highly motivated to make a positive impression on the examiner and to deny any negative traits. Postuma and Harper (1998) found a mean K of 54 in their sample of 188 litigants in custody cases. Siegel (1996) found mean L and K scores of 60 and 64 for the women in his study and 58 and 61 for the men. Siegel and Langford (1998) examined a group of women in custody cases who were accused of alienating the children from their fathers and found a mean K of 67 in that group. The largest sample was that of Bathurst, Gottfried, and Gottfried (1997) who surveyed 508 parents in the southern California area. They found an elevation of 55 on L and 60 on K. Thus, the custody evaluator may find that many MMPI-2 profiles of parents in custody litigation are of marginal validity due to the strong demands of impression management. Much testing that is conducted in custody evaluations is of little value in assisting the court at arriving at its decision. Recall that Ackerman and Ackerman (1997) found that about half of all evaluators give the parents the WAIS. The parents’ educational and occupational attainment, and their ability to comprehend interview questions can easily rule out subnormal intelligence, if that is in question. Thus, the WAIS should not be routinely administered as its use cannot be justified as necessary or relevant. Ackerman and Ackerman (1997) also found that half of evaluators routinely used projective tests. Projective tests, however, do not have the scientific validity that

Child Custody Evaluations

439

is sufficient to withstand cross examination in court. Nor can they reliably predict parenting behaviors. Ackerman and Ackerman (1997) also found that about half the evaluators gave children the WISC, though the children’s level of intelligence is seldom at issue in custody cases. If so, the child’s history of school achievement, report cards, achievement test scores, and ability to understand interview questions can all rule out subnormal intelligence The guidance in this area is this: Be selective in using psychological tests. Choose only those that are needed and that have a direct bearing on the referral questions. Be careful to review them for reliability and validity. Understand the purpose of the test and what populations are suitable for the test. For example, 34% of the evaluators in the Ackerman and Ackerman study regularly gave the parents the Millon Clinical Multiaxial Inventory (MCMI), though the test is designed for use only with clinical populations. This evaluator has found that the MCMI tends to yield false positives (see Ellis, 2000, for a more complete review).

Maxim #6: Make Sure You Have Converging Lines of Evidence For the clinician moving into the forensic arena, many approaches to the task must shift in ways that are subtle yet also dramatic. The psychologist must shift from being an ally or advocate of the client to the mindset of an impartial investigator. One must shift from a reliance on clinical impressions, or hunches, to a focus on observable factual information. One must move from an orientation toward believing the client to be telling the truth about his/her experiences, to an expectation that the client is engaged in impression management and is thus presenting only those truths selectively that benefit the client’s position, denying negative information, and distorting even the facts of the situation. For this reason it is crucial that the evaluator always seek converging lines of evidence before forming a conclusion. For example, when addressing allegations of alcohol abuse, it is not sufficient to ask the parent how much he/she drinks, give a written survey of drinking habits, and then conclude that the parent does or does not have a drinking problem. Information from the parent is only one source of information. The evaluator may want to interview the parent’s employer to determine if there has been a pattern of alcohol abuse on the job or excessive absentees on Monday morning. The evaluator may want to interview the children, neighbor, or the housekeeper about what they have seen the parent do when drinking. The evaluator may call the parent late in the evening to schedule an appointment and note whether the person has slurred speech. And finally, the evaluator may want to contact the guardian ad litem in the case and suggest the guardian make unscheduled home visits to determine if the parent is drinking. When this information is gathered, the evaluator will have converging lines of evidence that will support a conclusion of parental sobriety across a variety of situations, a pattern of episodic or situational alcohol abuse, or a pattern of alcohol abuse that is detrimental to the children. This conclusion can then address the opening questions to be answered by the evaluation and can go into the formulation of a parenting plan. This point—that the conclusions should be derived from multiple and converging sources of information—should be underscored. For example, this evaluator saw one

440

Elizabeth Ellis

report in which it was concluded that the parent had “schizoid tendencies” because the parent obtained a high score on Scale 8 of the MMPI-2. However, nothing in the parent’s presentation in interviews, nor the parent’s history, nor even the allegations in the case, suggested the parent had schizoid tendencies. Nevertheless, the parent had to go to great lengths to challenge the evaluator’s suggestion that she was schizoid. This standard of converging lines of evidence is not only good practice, it is an ethical requirement. For example, section VI F of the Specialty Guidelines for Forensic Psychologists (APA, 1991) specifies that the psychologist not rely simply on a person’s statement that something is true (e.g., “My wife is an alcoholic”) but attempts to corroborate what is called hearsay evidence through the use of other sources of information as well. Similarly, section III 11. of the Guidelines for Child Custody Evaluations in Divorce Proceedings (APA, 1994) specifies that the evaluator gather information from multiple sources, and that important facts and opinions should be “documented from at least two sources whenever their reliability is questionable.” Documentation from three sources would be even better.

Maxim #7: Know the Research Literature As stated earlier in the overview, the custody evaluator is expected to come to court with more than a set of generally accepted notions about child development, parenting practices, and the aftermath of divorce. The “expert” should be just that, an expert, and should have more to offer. That said, the evaluator will usually confront attorneys, parents, and judges, who hold many such cherished notions that are not supported by the scientific literature. Some of these are: • “Young children fare better with a stay-at-home mother (or stepmother) than a working mother.” • “In-home care by a parent is better for a young child than commercial day care.” • “Young children should not spend overnights with the noncustodial parent until they are 2 years of age and not have weekend visitations until they are 4 years of age. It will disrupt the mother–child attachment process and cause insecure attachment.” • “A parent who was abused as a child is likely to abuse his/her own children.” • “Parental alienation is caused by one parent brainwashing the children to hate the other parent.” • “The more time the child spends with the noncustodial parent, the more welladjusted the child will be.” • “Children are better off in a remarried home than in a single parent home as it more closely approximates a nuclear family.”

Maxim #8: Never Forget How Unimportant Your Evaluation Is in the Scheme of Things After spending 25 hours or more with a family, you may be tempted to feel that you know more about this family than anyone. Given this depth of involvement, your many years of training, your careful review of the scientific literature, and many

Child Custody Evaluations

441

hours of seminars in family law, you may be lulled into the false belief that your report will be the determining factor in how the custody case will be adjudicated. You may even have fantasies of giving your impeccable delivery to a rapt courtroom in which the judge and attorneys and guardian sit in amazement of your wisdom. If so, disavow yourself of such notions. When you enter the legal arena, you should focus on the fact that this is a tennis match. The two attorneys are the tennis rackets. The judge is the net and the referee. You, the custody evaluator, are merely the ball. This is not your arena and you have no control over the rules, nor over what the attorneys choose to do with you. The attorney whose client is not favored by you will use every means possible to discredit your testimony, even prevent you from testifying altogether. The attorney whose client your report favors, will be disenchanted with your report because it does not favor his/her client strongly enough, and he/she will use every means possible to make you be more forceful in your conclusions, to overreach your data. The judge may be interested in what you have to say, or may be completely disinterested. He/ she may have heard testimony in the courtroom prior to your testimony that was so persuasive that the outcome has already been determined. Some judges have strong personal leanings toward mothers, or toward fathers, or for or against joint custody. Some judges hold all psychologists in ill repute and consider their evaluations to be poppycock. It is a truly humbling experience. Even under the best of circumstances, where the attorneys and the judge are genuinely interested in your findings, your testimony may total 2 hours out of a 4-day trial, or a total of 32 hours of testimony, and you have no idea what was said in the other 30 hours. Evidence may have been introduced that you were unaware of and which completely contradicted your report. A legal misstep may have occurred (e.g., technical violation of a court order, perjury, failure to submit certain documents by a particular deadline) that greatly determined the outcome of the case and thus your report was rendered unimportant. Ultimately, you are a foreigner in the courtroom, you are not in charge, and your report is only one small piece of information upon which the court may or may not rely in making its decision.

Maxim #9: Take Care not to Harm or Humiliate For most parents who come before the court during or after a terrible divorce in which they felt personally devastated and betrayed, and who risk the loss of their children, there is no more wrenching and heartbreaking experience they will encounter in their lifetimes. The way we resolve such disputes through the adversarial process will be cold, lacking in compassion, often vicious, and incredibly expensive. Even parents who “win” such battles and retain primary custody of the children are left financially depleted and feeling emotionally broken and exploited by the justice system. The custody evaluator should understand this truth and set about not to contribute to this process. In other words, “Do no harm”—or as little harm as possible. One way in which to minimize harm is to be polite and avoid a perception of arrogance. Do not charge extravagant fees. Do not do more interviews and observations than are necessary. Return the person’s phone calls personally and promptly. Refusing

442

Elizabeth Ellis

to return phone calls because you are “too busy” is pompous. Remember the aggrieved parent in a custody dispute is probably the most dangerous person in your practice from a legal liability standpoint. Be on time. Do not keep people waiting while you tend to other matters. Do not cancel their appointments or fail to show. Their time is important also. Always address them by their title, never by their first name. Be courteous. Thank them for complying with your requests. Always maintain calm in the face of their hostility. Never become threatening if they refuse to comply. A second way in which to minimize harm is to treat the parties to the dispute with deep respect. If one of the parents brings to you a private diary or journal of the other parent, or even the child, that they took without the person’s knowledge, do not read it unless absolutely necessary. If one parent brings audiotapes of phone conversations that were taped without the other person’s knowledge, do not listen to them unless absolutely necessary. Do not request medical records unless absolutely necessary and relevant to the case. You do not need to violate the parent’s privacy by reading about their embarrassing medical problem. Although you may have the authority to request the records of previous marital therapists or individual therapists, do not do so. Those were relationships that were entered into with the understanding that they were private and should be respected as such. If you have a discrete question to ask the therapist, a question which is very important and has a bearing on the central issues, contact them and ask only that question (e.g., “Did Mr. A admit to you in the third office visit that he gave his wife a black eye, and that he did so in front of the child?”). Be careful of your language. Do not use extreme or inflammatory language. This evaluator has read reports with statements such as, “Mr. C has the maturity of a 15-year-old boy” or “Ms. C is one of the most unreasonable people I have ever encountered.” Language such as this only inflames the aggrieved person and gives them reasons to file a complaint against you. Use language that is bland, that focuses on observed behavior. Always find something positive to say about each parent, even if it seems trivial. Your positive comments may be the only esteem-building experience that some parents have with the entire legal proceeding. Johnston and Roseby (1997) make this point very poignantly in the first chapter of their text on families of high conflict and violent divorces (pp. 23–24). They observe that parents who come before the court in custody disputes are in a psychologically vulnerable state, and the court has the choice to treat them with dignity or further humiliation. The authors make an impassioned plea for the court to treat these people with care. If so, the parent will feel “less humiliated, less afraid of loss, and more able to let go of the fight and the marriage.” With careful intervention, the parent has less need to seek revenge against the other parent, as well as against the officers of the court. They will have less need to seek refuge in the children, to refuse court orders, or to flee the jurisdiction. Johnston and Roseby take care to remind the reader that underneath the parents’ anger and bitterness, which is extreme at times, lie disillusionment and shame, sadness and loss. They argue that the courts should be sensitive to this and develop more humane institutional policies that prevent further infliction of emotional harm and promote mutual respect. The custody evaluator, by being court appointed, serves as an extension of the court. Keeping this maxim in mind, the evaluator should be mindful of crafting recommendations that honor the integrity and important contributions of both parents.

Child Custody Evaluations

443

V. vs. V. Child Custody Case This evaluation was initiated by a consent order per the request of the attorneys in the case. The petition for modification of custody of the three children was made by Ms. V. on the basis that Mr. V. and his family live below the poverty line and that the V. children are subjected to neglectful conditions. Specifically, she alleges that the children do not have an adequate variety of food choices, that the home is overcrowded, and that they are unable to participate in after-school activities. She is seeking primary custody of the children at this time on the assertion that she can provide better care for them. Mr. V. has asserted that Ms. V. has a longstanding alcohol problem and that the children would be in continued danger in her care. Synopsis. The brief history of this case is as follows. Mr. and Ms. V. were married in their twenties in 1981. Their early years together were marked by heavy drinking, partying, and socializing with friends, and often having verbal and physical altercations. They owned several small businesses that failed, after which time they obtained salaried employment, Mr. V. in sales and Ms. V. in banking. Three children were born to them: Catherine in 1992, Sophie in 1996, and Mark in 1997. Mr. V. alleges that he stopped drinking when the children were born, but that his wife did not, stopping only for the 9 months of each pregnancy. In 1998 Mr. V. received rumors that his wife was having an affair with a man she met at the bank. After several arguments and one physical altercation, they separated. Toward the end of 1998, Ms. V. was charged with DUI. The couples’ divorce was final in 2000, and they agreed to share custody of the children in a 50–50 arrangement, with no child support paid to either party. Ms. V. continued a tumultuous relationship with Mr. K., the man with whom she had the affair, as that man finally divorced his wife. In 2002 Ms. V. was charged with a second DUI, and her driver’s license was revoked. She underwent an alcohol rehabilitation program and relied on her extended family to assist her with transportation needs. The license revocation did not affect her work as she had moved into a sales position that was done 100% from home by phone and over the Internet. In early 2003 Mr. V. remarried to a woman who also had three children: two boys and a girl. They became fundamentalist Christians and resolved to raise their very large family in a very strict manner with nightly Bible readings and all day Sunday spent at the church. Mr. V’s wife quit her job to stay home with the children, as they now had a total of seven children with the arrival of baby Cassie. Given Mr. V’s modest salary, the family qualified for food stamps and free lunches at school. They could not afford any luxuries or after-school activities. The home was crowded and all the children shared rooms. In the meantime Ms. V. ended the relationship with Mr. K and met Mr. T., who lived in Texas. After a long distance courtship, they decided to marry. She renegotiated a new custodial relationship with Mr. V. which gave him custody of the children about 75% of the time. Ms. V. packed up her belongings in late 2003 and moved to Texas, but the relationship failed after only three weeks. Returning to the Atlanta area, Ms. V. resumed her former life but regretted that she had the children only 25% of the time. She worked hard at her sales business and was making an increasingly good income.

444

Elizabeth Ellis

Over the course of 2004 and 2005, Mr. V. had encounters with Ms. V. in which he asserts she showed evidence of alcohol intoxication. He heard through a friend that Ms. V. had had problems with alcohol while in Texas. Ms. V. adamantly denied these allegations. She asserted that Mr. V. wanted custody of the children in order to obtain child support from her. Ms. V. asserted that the children increasingly complained to her that the children were struck with wooden spoons in the father’s home, they had no privacy there, the rules were harsh, the food was bland, etc. Thus, Ms. V. filed her petition for primary custody, seeking to provide a better home for the children, with more room, better food, music lessons, athletic activities, and freedom from the endless focus on church. Shortly after filing for custody, in late 2005, Ms. V. resumed her relationship with Mr. K., but that marriage, too, failed within weeks. The evaluation. First, 30-minute phone interviews were conducted with the attorneys in order to establish the purpose and scope of the evaluation. Then Mr. V. was interviewed, followed by Ms. V., then Mr. V. again, and Ms. V. again, for a total of 7 hours of interview time. The three V. children were seen with Ms. V. for an hour, then alone for an hour. They were observed with Mr. V. for an hour, then alone for another hour. Both Mr. V. and Ms. V. were given the MMPI-2. During this time, a total of 58 documents were reviewed. These included 37 documents submitted by Mr. V., 17 submitted by Ms. V., and the complete school records of all three of the V. children. Then a total of nine collateral witnesses were interviewed, four named by Mr. V., three named by Ms. V., and two requested by the evaluator—the oldest child’s psychotherapist and Ms. V’s family physician. Findings. Mr. V. appeared to be a well adjusted individual and a fit parent. His MMPI-2 was valid and nonclinical. Though the conditions which Ms. V. alleged occurred in his home were found to be largely true, the home was not found to be substandard nor neglectful. The children’s complaints about father’s home were validated by them in interviews, and they did express a desire to live with their mother. However, they also expressed concern about mother’s level of drinking. Their answers to questions about mother’s drinking vacillated, and they appeared to be anxious about making disclosures that might be harmful to their mother. Ms. V. appeared to be an emotionally stable woman who had a sincere desire to provide a better home for her children. Her MMPI-2 profile was invalid due to a high K score. Ms. V.’s collateral witnesses were adamant that they had seen her on a frequent basis for several years since 2002 and had never seen signs of intoxication. Mr. V’s collateral witnesses, however, verified that they had seen Ms. V. intoxicated in the presence of the children many times. They appeared to know more details of Ms. V’s life than did Ms. V’s witnesses who knew her only superficially. By constructing a timeline, and correlating several accounts of the witnesses, it was determined that Ms. V. had lied about several events in the last few years, had had episodic binge drinking, and had lied to her physician about her drinking. Recommendations. The evaluator concluded that the father’s home was adequate and that the mother had a hidden problem with episodic binge drinking. She recommended the children remain with Ms. V. 25% of their time, but that it be broken up into two long weekends a month, so that they could have two Sundays (instead of one) free of church activities. The evaluator also recommended that Ms. V. be allowed to pay for the children’s clothes and school lunches, and that she pay for their activities,

Child Custody Evaluations

445

as long as she provided the transportation. Finally, the evaluator recommended that Ms. V. purchase a hand-held breathalyzer, and that she submit the results to Mr. V. whenever she picked up the children from his home, and the father had a question about her sobriety. References Abidin, R. (1990). Parenting Stress Index (3rd ed.), Odessa, FL: Psychological Assessment Resources. Ackerman, M. (1995). Clinician’s Guide to Child Custody Evaluations. New York: Wiley. Ackerman, M.J. & Ackerman, M.C. (1997). Custody evaluation practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28(2), 137–145. The American Academy of Child and Adolescent Psychiatry. (1997). Practice Parameters for child Custody Evaluations. Journal of the American Academy of Child and Adolescent Psychiatry, 36(10), 57S–68S. American Academy of Family Mediators (1998) Standards of Practice for Divorce and Family Mediators. Author. American Professional Society on the Abuse of Children. (1995). Practice Guidelines—Use of Anatomical Dolls in Child Sexual Abuse Assessment. Chicago, IL. Author. American Professional Society on the Abuse of Children (1997) with Guidelines for Psychological Evaluation of Suspected Abuse in Young Children. Chicago, IL. Author. American Psychological Association. (1994). Guidelines for child custody evaluations in divorce proceedings. American Psychologist, 49(7), 677–680. American Psychological Association, Div. 41. (1991) Specialty Guidelines for Forensic Psychologists. Law and Human Behavior, 15, 655–665. American Psychological Association Ethics Committee. (1990). Report of the Ethics Committee: 1988. American Psychologist, 45(7), 873–874. American Psychological Association Ethics Committee. (1997). Report of the Ethics Committee, 1996. American Psychologist, 52(8), 897–905. Association of Family and Conciliation Courts. (1994). Model standards of practice for child custody evaluations. Family and Conciliation Courts Review, 37, 504. Austin, G. (2000a). A forensic model of risk assessment for child custody relocation law. Family and Conciliation Courts Review, 38(2), 192–207. Austin, G. (2000b). Relocation law and the threshold of harm: Integrating legal and behavioral perspectives. Family Law Quarterly, 34(1), 63–82. Bancroft, L., & Silverman, J. (2002). The batterer as parent: Addressing the impact of domestic violence on family dynamics. Thousand Oaks, CA: Sage. Bathurst, K., Gottfried, A., & Gottfried, A. (1997). Normative data for the MMPI-2 in child custody litigation. Psychological Assessment, 9, 205–211. Bauserman, R. (2002). Child adjustment in joint custody versus sole custody arrangements: A meta-analytic review. Journal of Family Psychology, 16(1), 91–102. Benjamin, A. & Gollan, J.K. (2003). Family Evaluation in Custody Litigation (pp. 205–208). Washington, D.C.: American Psychological Association. Bow, J. & Quinnell, F. (2001). Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association Guidelines. Professional Psychology: Research and Practice, 32(3), 261–268. Bricklin, B. (1995). The Custody Evaluation Handbook: Research Based Solutions and Applications. New York: Brunner-Mazel.

446

Elizabeth Ellis

Brodzinsky, D. (1993). On the use and misuse of psychological testing in child custody evaluations. Professional Psychology: Research and Practice, 24, 213–214. Ceci, S., & Hembrooke, H. (1998). Expert Witnesses in Child Abuse Cases. Washington, D.C.: American Psychological Association. Derdeyn, A. (1976). Child custody contests in historical perspective. American Journal of Psychiatry, 133, 1369–1376. Ellis, E. (2000). Evaluations of sexual abuse allegations in child custody cases. Divorce Wars: Interventions with Families in Conflict. Washington, D.C.: American Psychological Association. Ellis, E. (2001). Conducting psychological evaluations in relocation cases. American Journal of Family Law, 2001, 15(4), 286–300. Ellis, E. (in press). A stepwise approach to evaluating children for parental alienation syndrome. Journal of Child Custody. Foster, H. & Freed, D. (1973–1974). Divorce reform: brakes on breakdown. Journal of Family Law, 13, 443–493 Freed, D. & Foster, H. (1981). Divorce in the fifty states: An overview. Family Law Quarterly, 14, 229–283. Freed, D. & Walker, T. (1988). Family law in the fifty states. Family Law Quarterly, 21, 421–471. Galatzer-Levy, R. & Kraus, L. (1999). The Scientific Basis of Child Custody Decisions. New York: Wiley. Galatzer-Levy, R. & Ostrov, E. (1999). From empirical findings to custody decisions. In: Galatzer-Levy, R. & Kraus, L., The Scientific Basis of Child Custody Decisions (p. 35). New York: Wiley. Gardner, R. (1982). Family Evaluation in Child Custody Evaluation. Cresskill, N.J.: Creative Therapeutics. Gardner, R. (1987). Parental Alienation Syndrome and the Differentiation between Fabricated and Genuine Sexual Abuse. Cresskill, NJ: Creative Therapeutics. Gardner, R. (1992). Parental Alienation Syndrome. Cresskill, NJ: Creative Therapeutics. Gerard, A. (1994). Parent-Child Relationship Inventory (PCRI) Manual. Los Angeles, CA: Western Psychological Services. Gindes, M. (1998). The psychological effects of relocation on children. Journal of the American Academy of Matrimonial Lawyers, 15, 119–148. Glassman, J. (1998). Preventing and managing board complaints: The downside risk of custody evaluations. Professional Psychology: Research and Practice, 29(2), 121–124. Glick, P. (1979). Children of divorced parents in demographic perspective. Journal of Social Issues, 35, 170–182. Gould, J. (1998). Conducting Scientifically Crafted Child Custody Evaluations. Thousand Oaks, CA: Sage. Grisso, T. (1986). Evaluating competencies. Forensic Assessments and Instruments. New York: Plenum. Guyer, M. & Ash, P. (1986, October). Child abuse allegations in the context of adversarial divorce. Paper presented at the annual meeting of the American Academy of Psychiatry and the Law, Los Angeles, CA. Harris, E., Bennett, B., & Remar, R. (1997, May). Advanced Risk Assessment, Parts I and II. Presentation at the annual conference of the Georgia Psychological Association, Atlanta, GA. Heinze, M. & Grisso, T. (1996). Review of instruments assessing parenting competencies used in child custody determinations. Behavioral Sciences and the Law, 14, 293–313. Horvath, L., Logan, T., & Walker, R. (2002). Child custody cases: A content analysis of evaluations in practice. Professional Psychology: Research and Practice, 33(6), 357–365. In re Marriage of Burgess, 913 P. 2d 473. Cal. 1996.

Child Custody Evaluations

447

Johnston, J. (1993). Children of divorce who refuse visitation. In C.E. Depner & J.H. Bray (Eds.), Nonresidential Parenting: New Vistas in Family Living (pp. 109–135). Newbury Park, CA: Sage. Johnston, J. (1994). High conflict divorce. The Future of Children, 4, 165–182. Johnston, J. & Campbell, L. (1988). Impasses of Divorce: The Dynamics and Resolution of Family Conflict. New York: Free Press. Johnston, J., & Campbell, L. (1993). Parent-child relationships in domestic violence families disputing custody. Family and Conciliation Courts Review, 31(3), 282–298. Johnston, J. & Roseby, V. (1997). In The Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce. New York: Free Press. Keilin, W. & Bloom, L. (1986). Child custody evaluation practices: A survey of experienced professionals. Professional Psychology: Research and Practice, 17, 338–346. Kelly, J. (May, 2006). Developing beneficial parenting plans for children: Insight from divorce and child development research. Presentation to the Georgia Psychological Association/Family Law Institute Joint Conference, Destin, FL. Kelly, J., & Johnston, J. (Eds.) (2001). The alienated child: A reformulation (special issue). Family Court Review, 39(3). Kelly, J., & Lamb, M. (2000). Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, 38(3), 297–311. Kelley, M. (1995). Review of parent perception of the child profile. In J.C. Conoley & J.C. Impara (Eds.), The Twelfth Mental Measurements Yearbook (pp. 738–739). Lincoln, NE: University of Nebraska Press. Kirkland, K. & Kirkland, K. L. (2001). Frequency of child custody evaluation complaints and related disciplinary action: A survey of the association of state and provincial psychology boards. Professional Psychology: Research and Practice, 32(2), 171–174. Kuehnle, K. (1996). Assessing Allegations of Child Sexual Abuse. Sarasota, FL: Professional Resource Exchange. Levine, J. (1999). Relocation: The Most Difficult Custody Issue Today. Georgia Psychologist, (Summer), p. 30. Lowery, C. (1981). Child custody decisions in divorce proceedings: A survey of judges. Professional Psychology, 12, 493–498. Marcus v. Marcus, 320 N.E. 2d 581 (Ill, 1974). Marchant, G. & Paulson, S. (1998). Review of the parent child relationship inventory. In J. C. Impara & B. S. Plake (Eds.), The Thirteenth Mental Measurements Yearbook (pp. 720– 721). Lincoln, NE: University of Nebraska Press. Melton, G. (1995). Review of the Ackerman-Schoendorf scales for parent evaluation of custody. In J.C. Conoley & J.C. Impara (Eds.), The Twelfth Mental Measurements Yearbook (pp. 22–23). Lincoln, NE: University of Nebraska Press. Melton, G, Petrila, J., Poythress, N., & Slobogin, C. (1997). Psychological Evaluations for the Courts. (2nd ed.). New York: Guilford Press. Postuma, A., & Harper, J. (1998). Comparison of MMPI-2 responses of child custody and personal injury litigants. Professional Psychology: Research and Practice, 29, 547–553. Pruett, M., Ebling, R., & Insabella, G. (2004). Critical aspects of parenting plans for young children: Interjecting data into the debate about overnights. Family Court Review, 42, 39–59. Reidy, T. Silver, R. & Carlson, A. (1989). Child custody decisions: A survey of judges. Family Law Quarterly, 23, 75–87. Schutz, B., Dixon, E., Lindenberger, J., & Ruther, N. (1989). Solomon’s Sword: A Practical Guide to Conducting Child Custody Evaluations. San Francisco, CA: Jossey Bass.

448

Elizabeth Ellis

Siegel, J. (1996). Traditional MMPI-2 validity indicators and initial presentation in custody evaluations. American Journal of Forensic Psychology, 14(3), 55–63. Siegel, J., & Langford, J. (1998). MMPI-2 validity scales and suspected parental alienation syndrome. American Journal of Forensic Psychology, 16(4), 5–14. Stahl, P. (2004). An historical perspective on child custody evaluation. Journal of Child Custody, 1(3), 9–18. Stahl, P. (1999). Move-away evaluations. In Complex Issues in Child Custody Evaluations (pp. 69–91). Thousand Oaks, CA: Sage. Stahl, P., & Firestone, G. (Eds.). (2000). Child custody evaluations (special issue). Family and Conciliation Courts Review, 38(3). Sullivan, M., & Kelly, J. (2001). Legal and psychological management of cases with an alienated child. Family Court Review, 39(3), 299–315. Thoennes, N., & Tjaden, P. (1990). The extent, nature, and validity of sexual abuse allegations in custody/visitation disputes. Child Abuse and Neglect, 14, 151–163. Uniform Marriage and Divorce Act, 402, 9, Uniform Laws Annotated, 35 (1970, as amended 1971, 1973). American Bar Association. Wakefield, H., & Underwager, R. (1991). Sexual abuse allegations in divorce and custody disputes. Behavioral Sciences and the Law, 9, 451–468. Wallerstein, J., & Tanke, T. (1996). To move or not to move: Psychological and legal considerations in the relocation of children following divorce. Family Law Quarterly, 30(2), 305–332. Warshak, R. (2000a). Blanket restrictions: Overnight contact between parents and young children. Family Court Review, 38, 422–445. Warshak, R. (2000b). Social science and children’s best interests in relocation cases: Burgess revisited. Family Law Quarterly, 34(1), 83–113.

17 Evaluations of Individuals for Disability in Insurance and Social Security Contexts1 William E. Foote

Introduction This chapter considers the psychological evaluation of individuals who have filed claims for disability benefits under two different systems. One is under a disability insurance policy that has been purchased by the insured or by the insured’s employer. The other is under the Social Security system when a claimant files for Social Security benefits under one of several relevant Social Security programs. In the first case, the evaluation is conducted at the request of an insurance carrier. In the second, the evaluation is done at the request of either the Social Security Administration or the Social Security claimant. These are considered together in this chapter because both center on the issue of defining parameters of impairment of function. These definitions are not unlike those encountered in evaluations conducted in the context of Americans with Disabilities Act evaluations (Foote, 2003) in that the implications of impairment upon work is the essential focus of the evaluation. One researcher in the area (Pryor, 1997) observed a distinction that has long been made between impairment and disability. Impairment refers “to organ level abnormalities or restrictions (such as episodes of panic in an anxiety disorder).” Disability refers “to restricted ability to perform a social role within the expected range, due to an impairment, the history of an impairment or the perception of an impairment” (Pryor, 1997, p. 155). For example, a woman who has lost a leg to amputation may experience some impairment in walking. A child who has experienced a frontal lobe brain injury may experience impairment in planning, sequencing, or behavioral control. A man diagnosed with severe depression may experience limited energy, optimism, and endurance. Disability is impairment in context. For example, a woman with an impairment in walking from a lower limb amputation may experience disability in tasks requiring significant ambulation, but no disability at all in sedentary work. A child with frontal lobe impairment may experience considerable disability in situations with little external structure, but function with less disability in contexts in which such 449

450

William E. Foote

structure is present. A man experiencing impairment from depression may not be able to do work which requires self initiation, sustained activity, or long work days, but may function much better in tasks in which he is closely supervised and does not have to work a full 8-hr day. Psychologists conducting testing with a client may be interested only in assessing the impairments evidenced in symptoms, interpersonal deficits, or intellectual deficits. However, in most cases, assessments involving impairment are not useful to the consumer of the assessment report unless the impairment is placed in a specific context and discussed in terms of disability. In both systems addressed in this chapter, the specific context of disability is defined by the referral source, such as an insurance carrier, or by the funding agency, such as the Social Security Administration. The purpose of this chapter is fivefold: (1) to explore ethical issues related to these evaluations, (2) to provide information about the Social Security Administration system for the evaluation of disability, (3) to provide information about the demands of insurance carriers upon professionals who conduct Independent Medical Evaluations (IMEs),2 (4) to provide a model for conducting these evaluations that will allow for the delineation of impairments and functions and their origin, and (5) to provide a framework for report preparation. The chapter will begin with a consideration of the ethical issues to be considered in IME and SSA evaluations. Then, I will discuss the IME, and the chapter will conclude with a discussion of SSA evaluations.

Ethical Issues In Social Security Administration (SSA) evaluations and in independent medical evaluations (IMEs), the evaluator encounters ethical issues, much as one would in other forensic evaluations (American Psychological Association, 2002; Committee on Ethical Guidelines for Forensic Psychologists, 1991; Rogers, 1987; Weissman & DeBow, 2003). Vore (2006) reminds the IME examiner that each evaluation should be treated as though it will be a basis for court testimony, because the insured 3 may file suit against the carrier for bad faith or some other tort, and the evaluation may be the centerpiece of the legal controversy. This means that the standards assumed by the examiner should be equivalent to those of any court-related forensic assessment. Even with this adherence to high standards, in the IME and SSA settings, several issues are of special importance. The examiner must be clear about defining who is the client. In the IME, the client is always the insurance company. The disability carrier is requesting the evaluation, setting the parameters for the assessment, defining the scope of the report, and paying the examiner for professional time. In the SSA evaluation, the evaluation may be done at the request of the SSA or the claimant. In the former case, the SSA provides the parameters for the evaluation, including forms to be completed at the end of the evaluation process or the elements to be covered in a report. In this case the SSA is paying the fee for the evaluation. When the claimant pays for the professional’s time, the final product is usually the same—the provision of sufficient information for the SSA to properly deal with the claimant. From an ethical perspective, the job of the examiner is no different in any of these cases. It is expected that the examiner will

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

451

conduct a fair and accurate assessment of the claimant or insured, without bias based upon the source of the referral or payment. Informed consent is sometimes complicated in forensic assessment (see Foote & Shuman, 2006), but in cases of the SSA or IME evaluation, informed consent is especially important because of the sometimes high stakes riding on the outcome of these assessments. The informed consent process should be one of the first things done with the examinee, before any forms are completed and any assessment procedures begun. In all cases, it is recommended that the examiner use a written informed consent, which is read by the examinee and reviewed with the examinee prior to the onset of the evaluation. Any questions should be answered and ambiguities clarified before the examinee signs the consent form. In some IME contexts, it may be necessary for the insured to sign additional forms provided by the insurer. In both IME and SSA cases, the examiner should include a form with which the examinee provides permission to the examiner to conduct telephone interviews with collaterals. It is critical for the examiner to make his or her role clear to the examinee. For example, in the IME, the examiner should make it clear that the disability insurance carrier is requesting the evaluation, but that the examiner is not an employee of the insurer. In the SSA evaluation, the examiner should inform the examinee about the examiner’s role. The examiner should advise the examinee that the choice can be made to terminate the evaluation at any time, and some general idea that consequences may follow if the examinee makes that choice. The examiner should tell the examinee there is an option not to answer all questions, but that the examiner will have to make a notation concerning any refusal in the final report. The examiner should provide information to the examinee outlining the procedures to be followed, including testing, interview, and collateral intervals. In addition, the examiner should disclose who will have access to the report. A special circumstance of some IMEs is that the examiner will be allowed to release the results of the evaluation only to the referring carrier. This means that the examiner may not honor requests for copies of the report from the insured’s psychotherapist or physicians. In addition, in most IME contexts, the examiner will not be able to discuss the results of the evaluation with the insured. This is contrary to the practice in most assessments (American Psychological Association, 2002), and indicates that the examinee normally should be able to review the results of the examination. For some individuals, not being able to have access to the final report is a “deal breaker,” and will result in their withdrawal from the evaluation process.

Independent Medical (Psychological) Evaluations Private disability insurance preceded the development of Social Security disability insurance in the United States. Before the early part of the 20th century, the few existing disability policies could be cancelled by the carrier if the person became disabled. In 1916, the first noncancelable policy was sold (First Financial Group, 2006). Early policies narrowly defined disability in terms of permanent and complete disability. After both World Wars, the number and range of disability policies increased.

452

William E. Foote

Today, the market for disability policies is competitive, with insurance carriers offering a broad array of policies. Most recent statistics (Houtenville, 2005) indicate that the number of people in the United States who report a work limitation has averaged around 8%. Another 18% have some functional limitation, but not so severe as to cause work disability (First Financial Group, 1996). In 2005, the average monthly benefit for a disability policy was a little over $3000 (JHA, 2006). Most recent statistics (Crawford, 2001) indicate of all those disabled, back injuries account for 18.2%, emotional/psychiatric problems disable 12.7%, neurological problems amount to 11.3%, and problems with the extremities account for 9%. Other sorts of illnesses that affect hearing and vision account for about 5.4%, and blood disorders and cancer account for about 5% of those disabled. The legal framework of the IME is largely formed through a series of federal appeals courts decisions. The nuances of this framework require significant elaboration that is not possible within the space confines of this chapter. The interested reader is referred to Vore (2006), who has comprehensively covered the case law in this area. The IME is usually conducted at the request of the insurance carrier. Most commonly, the evaluation is conducted in relation to a claim made by the insured on a disability insurance policy that may have been purchased by the insured or by his or her employer. The carrier usually requests an evaluation to determine if, in fact, the person is disabled according to the terms of the policy. In this case, the terms of the disability policy are the critical element in this equation, as the insurance policy determines the scope and nature of the IME. The carrier defines, either generally or specifically, the questions to be answered by the evaluation. In addition, the carrier may impose other parameters, such as tests to be administered in the evaluation process. In the process of the IME, a number of different definitions of disability are used (Vore, 2006). For example, some policies define disability in relation to “any occupation.” These “any occupation” policies provide for disability benefits for workers who are unable to perform any occupation for which the worker is reasonably qualified by training, experience, and education. This is similar to the definition for disability under the Social Security Administration and may be a very high standard to meet. For example, a well-educated individual like a neurosurgeon may be qualified to perform many other occupations for which the insured is “reasonably qualified.” However, some “any occupation” policies may require the job that the disabled insured is still capable of performing to provide the same level of support or income that the worker received in the previous occupation. “Own occupation” policies may provide benefits for workers who are unable to perform the principal duties of their occupation at the time the individual became disabled. “Own occupation” policies provide benefits even though the insured is able to perform the duties of other occupations for which the insured is trained and educated, and for which the insured has appropriate experience. In this situation, the person may be able to be employed full time yet still receive full disability insurance benefits. Some insurance policies involve a hybrid of the “any occupation” and “own occupation” provisions. In many cases, the terms of the insurance policy may not be known to the examiner but may be inferred from the questions asked by the referring carrier. Some policies provide for payment for “partial” as opposed to “total” disability. Partial disability policies allow benefits in situations in which the insured is unable

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

453

to perform the critical duties of the occupation, but is able to perform other aspects related to the position. These benefits are usually limited in duration, often to 6 or 9 months (Vore, 2006). However, total disability policies usually provide benefits through age 65 and thus may have a very long duration. Two dates are important in the analysis of these policies. The first is the date of issue. This is the date when the policy becomes effective for that particular worker. The second is the date of claim, when the worker files the claim and states that the disability began. The date of the claim usually must be verified by a medical authority if there is not a particular event, such as an accident, which would provide a temporal anchor for the onset of the disability. Some policies may impose a delay between the date of issue and the date of claim. Although the examiner is unaware of the policy provisions, the insurer may ask for an estimation of when the disabling condition actually began, especially if there is evidence that it began before the date of claim.

Referral The insurance carrier contacts the psychologist and asks to schedule the evaluation. In the interval between the referral and scheduled appointment, the carrier provides a referral letter, which includes the referral questions. These questions may be very particular and may be framed in the language of the insured’s insurance policy. The psychologist then reviews material provided by the carrier in preparation for the evaluation. In some cases, these materials may include relevant medical and psychological records or may include reports regarding this insured. In many cases, the carrier provides materials that are not as extensive or complete as may be provided to a psychologist conducting an evaluation in other settings, such as those done in the context of a tort claim or an employment discrimination claim (Foote, 2000; Foote & Goodman-Delahunty, 2005). In the IME, psychologists may be limited in what records they may review, and the opinions of the psychologists may be limited based upon available documented medical history. The psychologist should note any deficiencies in the database, especially if the missing records would illuminate an important aspect of the case. As noted earlier, before the beginning of the evaluation, the psychologist should prepare an informed consent for the signature of the client. In addition, the psychologist should prepare testing and interview materials so as to be ready to conduct the evaluation expeditiously.

Assessment Procedures The examiner administers or supervises the administration of psychological testing. This usually should be done before any interview is conducted, because the results of the testing may inform the examiner about issues to address in the interview. For example, if the insured endorsed “critical items” on the MMPI-2, these should be the focus of some questions during the interview to insure that the examiner understands why the insured endorsed those items.

454

William E. Foote

In line with concerns of researchers (Heilbrun, Rogers, & Otto, 2002), the tests used ought to have appropriate validity, reliability, and norms, and should be administered by qualified individuals who are appropriately licensed to perform the assessment. In addition to the scores from the tests, the testing procedure provides the examiner with an opportunity to observe the insured in a structured setting. These clinical observations may supplement those done in the balance of the evaluation. Two kinds of assessment tools may be used: tests of intelligence/ability, and tests of personality and emotional functioning. Intellectual assessment may be conducted with the insured to measure overall intellectual capacity, and to identify problems in cognition, memory, attention, and concentration. Formal cognitive testing may be used. In most contexts, because these are limited-duration evaluations, it may be necessary to use a short-form cognitive assessment such as the Wechsler Abbreviated Scale of Intelligence (WASI; The Psychology Corporation, 1999) to determine if the claimant suffers impaired cognitive processing abilities. The examiner should be aware that not all of these short forms yield scores that are psychometrically equivalent to the full Wechsler Adult Intelligence Scale III (WAIS III; see Hays & Shaw, 2003). In other situations, more extensive testing, such as the Wechsler Adult Intelligence Scale III (Wechsler, 1997) may be appropriate. This is especially the case if the insured is complaining of problems in attention, concentration, or memory, or in the case of depression, which may reduce motor speed on timed tasks. Measures of achievement or ability, such as the Wide Range Achievement Test-4 (Wilkinson & Robertson, 2006), may be used to determine the level of performance in job-related activities that the insured may be expected to achieve. In addition to these measures, the cognitive assessment should include measures of effort, such as the Test of Memory Malingering (TOMM; Tombough, 1997), or the Validity Indicator Profile (Frederick, 1997) to determine if the examinee performed as well as possible on the cognitive measures. Personality measures may be used to determine the nature of emotional disorders and the presence of personality or character traits that may relate to work performance. These should include at least the Personality Assessment Inventory (Morey, 1991) and the Minnesota Multiphasic Personality Inventory–2 (Pope, Butcher, & Seelen, 2000). These measures provide an assessment of ongoing psychopathology and other disability-related problems. The psychologist may also consider providing a work-related measure such as the Hilson Life Adjustment Profile (Inwald & Resko, 1995). This work-related measure provides an insight into attitudes concerning work and feelings about the work situation, which may be critical to determine whether the individual is, in fact, disabled from functioning in work contexts. The examiner may also wish to employ measures of personality disorders, such as the Millon Clinical Multiaxial Inventory–III (Millon, 1994), to assess the presence of personality disorders that may be comorbid conditions with other disabling conditions or may themselves constitute disabling conditions. In general the testing is used to both generate and confirm hypotheses. That is, the purpose of testing is to provide areas of exploration for the interview and other data gathering techniques. In addition, the testing may confirm hypotheses generated through the interview and allow the examiner to be more certain about conclusions,

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

455

as they will be based upon more than one source of information. In no case, except perhaps for pegging an IQ score, should the testing be the sole basis for a conclusion.

Interview On the date of the evaluation, the examiner conducts a clinical interview. That should begin with a formal Mental Status Evaluation (MSE; Vore, 2006). The MSE should include an observation of the person’s appearance and grooming, and an assessment of orientation according to person, place, time, and situation. The psychologist should assess the client’s psychomotor activity, as well as the client’s behavior and attitude. The examiner may note the person’s affect in terms of his flatness or lability and the presence of anxiety symptoms. The MSE should include the insured’s mood and its expression in the course of the evaluation. The psychologist may assess the person’s ability to engage in reasoning through particular techniques such as the use of proverbs or reference to formal intellectual assessment. The examiner should observe and analyze the insured’s speech in terms of rate, tone, and speed. An evaluation of the person’s thought processes to determine the presence of ideas of reference, poverty of thought, thought insertion, circumstantiality, or tangentiality would be appropriate. Assessment of the person’s judgment is also essential during this part of this exercise. The psychologist should also assess the client’s insight into his or her own problems and how they are affecting the individual. The individual’s attention and concentration would be appropriately assessed, as would short-term memory and long-term memory. The psychologist may obtain an estimate of the person’s intelligence in the course of the Mental Status Examination, although this would be unnecessary if the evaluation includes cognitive assessment. Overall, the Mental Status Examination should provide the psychologist’s assessment of the individual’s current status based upon observations at the time of the evaluation process. In this sense, it is a “snapshot” of the person’s functioning, and may be subject to change over time. Next, the psychologist should gather the client history (Greenberg, 2002). In general, this may not be as detailed and extensive as histories gathered in personal injury or employment discrimination cases (Foote, 2002, 2003; Foote & Goodman-Delahunty, 2005). In those cases, the delineation of causation is often a critical part of the evaluation. Thus, the review of historical factors, such as trauma, that could account for the litigant’s injuries is critical. In the IME, the origin of the problem may be of interest, but is not the primary task. The critical factor is the nature of the deficits related to the mental or physical disorder. In the IME, the history includes exploration of a number of aspects of the insured’s history. The psychologist should inquire about the nature of the examinee’s family of origin, along with a relationship history. The examinee’s family status bears discussion, including a listing of who is living in the examinee’s household, including children. Medical history, including hospitalizations and chronic medical conditions such as diabetes or epilepsy, is an important area of inquiry. A mental health history is critical to determine when the condition for which the person is claiming disability began. A history of trauma may also be relevant to mental disabilities, as such a history may magnify the impact of later stressors (Bremner & Brett, 1997; Elliott &

456

William E. Foote

Briere; 1992; Ford & Kidd, 1998; Resnick, Kilpatrick, Dansky, Saunders, & Best, 1993; Roesler & McKenzie, 1994; Wilson, Calhoun, & Bernat, 1999; Zasler & Martelli, 2003). Substance abuse history is critical, as many psychological disabilities have as comorbid problems with drugs or alcohol (Acierno, Kilpatrick, & Resnick, 1999). The examinee’s education history is an important aspect of the disability evaluation interview, as this is one of the parameters for defining disability. Particular emphasis should be placed upon practical work experiences, such as internships and work-study placements. Employment history provides parameters of experience that play an important role for defining the work that a person is capable of doing. In this regard, the examiner should explore the nature of job duties and responsibilities. Whether the job responsibilities changed over time, especially if the insured was promoted or was given greater responsibilities may be important. The psychologist is also interested in whether merit pay increases were provided, and how the person fared with performance reviews. The nature of the individual’s termination of employment may provide important information about work attitudes. If the person left the job without another position waiting, the question of whether the job termination was entirely voluntary should be discussed. The examiner may examine how the worker got along with supervisors and co-workers. Any history of disability in the context of prior employment may provide a basis for a pattern in which the insured repeatedly experienced periods of disability. In addition to these elements, the interview should focus extensively on the work the person was doing at the time the disability began. Job duties, hours, and compensation are central to this discussion. The nature of the social matrix of the job should be discussed. Who were the co-workers, and supervisors? How did the insured get along with people in the workplace? Were there job duties that the insured disliked, and those that th e insured favored? Did the insured experience on the job stressors like schedule changes or involuntary lay-offs that may have resulted in a loss of co-workers and an increase in duties? Those aspects of the work that were stressful should be explored, as well as how the examinee dealt with those stressors. If the disability was caused by an accident, the accident itself should be discussed in order to determine the nature of the traumatic aspects of the accident, and the extent to which those may contribute to subsequent disability. If the condition was slowly developing, as in the case of some anxiety disorders or pain syndromes, a discussion of the course of the development of the condition is an essential topic of the interview. Once the history of the disabling condition is explored, a history of the treatment process for the underlying condition is next to be examined. Who provided the treatment, and the extent to which the treatment was successful is an important topic. The treatment regime at the time of the evaluation is next for discussion, including medications and ongoing therapy, especially psychotherapy, or physical therapy. The interview then turns to the examinee’s current condition. This may begin with questions which elicit the examinee’s daily activities from waking to bedtime (see Figure 17.1), commonly called Activities of Daily Living, or ADLs. This includes a discussion of the ADLs that the examinee is able to do, such as mowing the yard, vacuuming the floor, washing dishes, changing oil in the family car, etc. The nature and extent of social activities, such as entertaining friends, and going to parties and family gatherings, is part of the current life space that bears exploration. Hobbies

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

457

Activities of Daily Living Personal hygiene Household chores Reading activities Use of electronic equipment Social activities Family Responsibilities Community/religious activities Exercise regimen Vacations Sleep/wake cycle Eating habits, with any weight gain or loss Recreational activities, especially as restricted or changed Driving activities Financial management Doctor’s visits Work or work-related activities Academic pursuits

Figure 17.1 Activities of daily living. Developed from material provided by David Vore and Lori Cohen (Vore, 2005). Used with permission.

and other leisure activities may provide some measure of work-like activities that the examinee may still perform. The interview should generate a clear picture of the insured’s current situation. What is the family context? Who lives in the home with the insured? Are there people within the insured’s circle for whom the insured is responsible? For many women, the circle of responsibility extends widely, and may include parents as well as children. If the insured is a professional, what is the status of the insured’s current professional license? Is there ongoing litigation concerning some issue? For example, is an insured physician facing malpractice action for acts or omissions during the predisability period? A discussion of financial stressors is appropriate. Is the insured in debt? Has the insured filed for bankruptcy? Throughout the interview, the examiner should be sure that information concerning the examinee’s functional limitations is gathered. For example, if the examinee is claiming disability based upon depression, the nature of the problems related to sleep impairment, reduced energy, fatigability, and impaired concentration must be discussed. Even of these impairments do not directly affect work activities, it is important to determine how the impairment affects different aspects of the individual’s life activities. Questioning about impairments and their impact should be specific, eliciting details about the duration of time that a person may perform a specific activity, the amount of material that may be read in one sitting, or the number of people that the insured can tolerate at the same time.

458

William E. Foote

Assessment of Malingering or Deception Most forensic assessments include the evaluation of response set or malingering (Heilbrun, Rogers, & Otto, 2002). Because of the stakes of disability evaluations, the insured may be tempted to present an inaccurate picture of the insured’s emotional, physical, or cognitive status. In this context, as in other forensic assessments, the insured may have a specific goal in this inaccurate presentation (Rogers & Bender, 2003). The insured may choose to exaggerate or embellish the severity of symptoms. In this presentation, the insured begins with symptoms which are real, such as low back pain, and then makes the severity or consequences of the symptoms appear worse than they are. This exaggeration is sometimes difficult to assess, because the symptom may be based in a real injury or illness. A review of psychometric testing, such as the MMPI-2 or the PAI, will provide some indication of exaggeration of emotional symptoms, such as depression or anxiety. However, these measures may not shed much light on exaggeration of physical symptoms, such as pain or limitations in movement. Frank malingering may also be an element of the insured’s presentation. In this case, the examinee presents symptoms that do not really exist. In most cases, this presentation involves some clues that the insured is lying. For example, the symptom pattern may include symptoms that are rare, overly specific or rarely occur in combination. The use of psychometric testing or a specialized instrument, such as the Structured Interview of Reported Symptoms (Rogers, Gillis, Dickens, & Bagby, 1991; Rogers, Hinds, & Sewell, 1996) may facilitate detection of malingering. In some contexts, the insured may be defensive. This is the polar opposite of malingering, and refers to the conscious denial or gross minimization of physical and/or psychological symptoms. Although this would not be expected in the context of an IME, some insureds may be defensive about some aspects of their presentation, especially those who present with chronic pain problems. In this case the individual may have a stake in convincing the examiner that the pain is real, and not a product of an emotional disorder. Issues of secondary gain are also important, and almost ubiquitous in IMEs. Although some (Rogers & Bender, 2003) argue that this term from psychoanalysis is dated and should not be used, it is still prominent in referrals from insurance carriers and deserves exploration. In disability insurance cases, the insured usually has a financial motive to appear disabled. However, in some cases, the insured has other motives for disability. For example, in the individual’s family situation, the disability may garner attention and concern from family members who, heretofore, had been relying upon the individual as primary wage earner. The disability may allow the individual to avoid activities, such as housework or other undesired labor. The worker may use the disability to “get back” at an employer whom the employee has always felt to be unfair. All of these motives are a basis for exaggeration or frank malingering, and should probably be assumed under one of those rubrics. All of these goals and motives may be considered “secondary gain” by the insurance carrier. In addition to the patterns noted above, hybrid responding may be evident. This may be a combination of exaggeration and defensiveness. As noted earlier, the pain patient may exaggerate the degree of disability attendant to pain, but may be defensive about the existence of emotional problems. The discovery of one kind of response set

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

459

giving rise to an inaccurate evaluation does not stop the inquiry. Paying attention to the subtleties of the presentation will increase the quality and accuracy of the assessment. Collateral Interviews Conducting interviews with individuals other than the examinee has become an integral part of a comprehensive forensic evaluation (Heilbrun, Rosenfeld, Warren, & Collins, 1994; Heilbrun, Warren, & Picarello, 2003). In the IME, the ability of the examiner to conduct these additional interviews may be limited by the practices of and the referral from the insurance carrier. In addition, the insured may not provide the names of potential collaterals or permission to contact them. If allowed, however, the interviews may be done with two groups of people. The first would be those identified by the examinee, which would include friends and family. Disinterested but informed parties such as clergy and neighbors may also be useful sources of information. It is usually important to obtain the permission of the examinee to talk with these individuals, because the examinee will be asked to contact the collateral sources before the examiner does to advise them of the purpose of the examiner’s call and enlist their assistance in this task. Permission to contact collaterals is also important in order to protect the privacy of the insured. For example, the proposed collateral may not be aware that the insured is seeking disability insurance benefits, or the nature of the insured’s disability. Given the stigma associated with both of these, the insured may not desire to have those issues disclosed through the mechanism of the collateral interview. The second group of individuals to be interviewed is from the insured’s former workplace. If the retaining party is associated with the employer, these interviews may be arranged through the carrier, and may take place at the insured’s former work site. In this case, it is probably not necessary to obtain permission from the insured for these conversations. In contrast, if the retaining party has no connection with the former employer, it is probably necessary to treat these conversations as one would interviews with friends, family, neighbors or clergy, and obtain permission from the insured and to request that the insured contact the collateral before the examiner does. Once the interviews and testing have been completed, the psychologist prepares a report. It is also appropriate for the examiner to discuss the parameters of the interview with the collateral, including who the examiner is, why the examiner is contacting the collateral, the nature of the information to be gathered in the interview and the purposes to which that information will be put. In this context it is critical to advise the collateral that the information gathered in the interview may be repeated in a written report or in legal proceedings so that the collateral will understand that what they say about the examinee may be repeated to the examinee at some later date. Report Preparation The psychologist should remember to answer only the questions that the referral source posed. Although a number of other issues may arise in the course of a thorough interview and testing, this is a very specialized examination in which the

460

William E. Foote

examiner is required only to provide answers to specific questions that are usually framed in the context of the individual’s disability policy. In the course of the evaluation, the psychologist will usually determine the insured’s diagnosis. In most cases, the diagnosis itself is not the critical issue, but the impairments which arise from the mental or emotional problems that the individual claims constitute his disability. It is not the examiner’s job to determine if the insured’s definition of disability is met, but only to describe the nature and extent of the claimant’s impairments. In order to discuss impairment, the person’s functional capacity is the main focus (Vore, 2006). Functional capacity (or in SSA terms, Residual Functional Capacity) focuses on what the person is still able to do in spite of the person’s impairments. Impairments which would affect work are especially important. For example, if the individual has impairment of social skills that would interfere with that individual functioning in a job that requires contact with the public, a notation concerning that impairment would be very important as part of the disability evaluation. To the extent possible, the examiner should discuss functional capacities in terms of concrete limitations on activities. For example, if the insured is limited in the duration of sustained concentration, a description of that limitation in hours is most helpful. In order to provide appropriate context, the psychologist should also discuss other factors that may not relate to the disability itself, but have an impact on whether the individual wants to work. For example, a woman claiming disability may be 5 years younger than her husband, who just retired. She may want to spend more time with him, and the choice of her retirement may be attractive on that basis alone. If the individual is experiencing a pain problem, the psychologist must ask if there identifiable psychological factors that exacerbate or ameliorate the experience of pain. The insurance carrier may want an assessment of treatment issues. For example, is the current treatment appropriate for the claimed impairments? What are the insured’s current treatment needs? What would the optimal treatment plan include? Would adjunctive psychotropic medication or psychotherapy improve the prognosis? If optimal treatment is provided, what is the probability that the insured will return to work? Does the insured have the motivation to engage in treatment and follow treatment recommendations? Under conditions of maximum motivation on the part of the insured and optimal treatment, would the worker be able to return to work? Depending on the language of the insured’s disability policy, the carrier may be interested in an opinion about the insured’s ability to return to the former job. Alternatively, the insurer may describe a range of jobs, and ask for opinions concerning the insured’s fitness for those occupations. In order to be able to offer opinions about these issues, the psychologist should be certain that sufficient information is available about the nature of the duties of those jobs and other parameters of the insured’s condition (e.g., medical limitations) that may limit work capacities. The report should conclude with a summary section that brings together the insured’s strength and impairments as they relate to work contexts. To the extent that the impairments are evident in nonwork contexts, discussion may be more complete. By the end of the report, the reader should have a complete and balanced picture of the individual.

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

461

Psychological Evaluations in the Social Security System Introduction President Franklin Delano Roosevelt signed the Social Security Act on June 8, 1934, as part of a number of legislative initiatives designed to pull the United States out of the Great Depression. The original legislation provided for retirement income for older Americans through both grants to states for elderly people and a federal government administered benefit program that we now know as Social Security. In 1956, the Social Security Act was amended to provide benefits for disabled workers aged 50–64 and to disabled children. President Eisenhower signed a bill in 1960 to extend benefits to disabled workers of any age. In the time since the initial development of Social Security, a number of state-run programs for short-term disability had been developed, but differed widely in criteria for qualifications, benefits, and the efficiency with which those programs were run. In 1972, the federal government brought these programs together under the Social Security Administration (SSA) because the SSA had an established and efficient system for evaluating disability and disbursing benefits (Social Security Administration. 2005a). The Social Security System developed two programs which provide benefits: Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI; Kodimer. 1988). These programs differ in terms of who is qualified, the nature of the benefits provided, and other factors, but disability evaluation for both programs is essentially the same. SSDI is designed to provide benefits for workers who are disabled. In order to qualify for SSDI, the worker must have earned benefits by paying Federal Insurance Contributions Act (FICA) tax contributions for a minimum of 20 quarter-years in a 40-quarter period (e.g., 5 years out of a 10-year period) that ends at the time the worker applies for benefits. The quarter-year (now called “credits”) system allows for those quarters-years to be worked in noncontiguous periods. In addition, the worker cannot have reached the age for retirement, and must wait for a 5-month delay period (Social Security Administration, 2006a). The criteria for receiving SSDI are as follows: (a) the worker must be unable to engage in any substantial gainful activity because of a physical or mental impairment; (b) the worker must not only be unable to do the worker’s previous work, but also any other type of work considering the worker’s age, education, and work experience; (c) the worker’s impairment must be established by objective medical evidence; (d) the worker’s impairment will either result in death or last for at least 12 months in a row; and, (e) the worker must meet the nonmedical criteria required for insurance by the program (Social Security Administration, 2006a). Supplemental Social Insurance (SSI) is “designed to help aged, blind, and disabled people, who have little or no income; and it provides cash to meet basic needs for food, clothing, and shelter” (Social Security Administration, 2006b). In order to receive SSI, the individual must first meet income criteria, which limit the income that a person may earn and still receive SSI. The program also limits the resources that the person may have, although the person’s home, car, and other assets are usually eliminated from this accounting (Social Security Administration, 2006c). Unlike SSDI, the SSI program

462

William E. Foote

does not require the worker to have paid into the system through FICA. An individual may receive SSDI and SSI at the same time, if they meet the criteria for both programs and if the worker’s level of qualification for SSDI does not provide full benefits.

Application and Appeals Procedures Although these programs differ, the qualifications and procedures for disability determination are similar (Kodimer, 1988). The individual must first go to a local Social Security Administration office and put in an application. Then, the SSA office gathers information about the individual. This information includes medical records, which provide data about the nature of the person’s medical condition, and the limits that the condition places upon the person’s ability to function in the workplace. On the basis of this information, the SSA begins to determine if the individual meets the criteria for disability under the SSA system. First, the individual must have a “medically determinable impairment.” The applicant must list the medical history related to the disability, and the SSA will review the available information to determine if the individual qualifies. A physician is usually involved in this review process. Although the SSA may take into account information gathered from a medical or mental health professional, the determination of disability is still made by the SSA, not the professional (Kodimer, 1988). The most frequent outcome of an initial application is a denial of benefits, as the probability is only about 40% that the application will be successful (Benitez-Silva, Buchinsky, Chan, Rust, & Sheidvasser, 1999). If the application is denied, the applicant has 60 days in which to request reconsideration, and may add additional evidence to the file at any time in that interval. SSA will then conduct another review of the file, this time with a different panel, including a different physician. Upon the second review the applicant’s odds improve to about 50%. However, the first denial is an effective means of winnowing down the number of applicants, as some 30% of rejected applicants do not appeal (Benitez-Silva et al., 1999). If the appeal is denied, the applicant has a third level of appeal, for which application must be filed within 60 days. This is a hearing before an administrative law judge (ALJ) who will consider all the evidence, including statements from the applicant’s significant others and other data which affects the applicant’s functional capacities. The success rate for this appeal is good; some 75% of applicants are accepted after this adjudication. This failing, the applicant may appeal to the SSA Appeals Board. Applications at this level result in a 30% acceptance. Although applicants may file suit in federal court to appeal the Appeals Board determination, this is rarely done. The delays encountered in following through on these procedures are significant. The average interval between the initial determination and reconsideration is 5 months, between reconsideration and appeal to the ALJ is 2 months, between this stage and the Appeals Board, some 3 months (Benitez-Silva et al., 1999). If the applicant is successful, however, these intervals usually encompass the required 5-month delay for receipt of benefits, so that benefits usually begin shortly after a successful determination. Through this process, the SSA may request more thorough direct evaluations of the claimant, especially if evidence from various sources is contradictory or inadequate

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

463

for a complete adjudication. Specialist consultants may be brought in to assist in evaluating data, or may be asked to conduct evaluations with the claimant to determine if the claimant meets the criteria for disability under existing rules.

Criteria for Establishing Disability The definition for disability under Social Security is “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months”(Social Security Administration, 2006d). To unpack this definition, the meaning of “substantial gainful activity” is straightforward. As of 2006, if one earns over $860 a month in a job, that person is said to be engaging in “substantial gainful activity.” This figure is linked to the Cost Of Living Index (COLI), and changes periodically. The meaning of medically determinable impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings—not only by the individual’s statement of symptoms” (Social Security Administration, 2006d). If the individual is unable to return to the work that he or she was doing at the time of the disability, the SSA then considers “residual functional capacity.” This is what the person is still able to do despite limitations imposed by mental or physical impairments. These impairments may include pain, or mental or emotional symptoms which may cause limitations or restrictions in the person’s capacity to do workrelated physical or mental activities. This residual functional capacity is determined by evaluating the person’s maximum remaining ability to engage in sustained work activities in an ordinary work setting over an ordinary work week. The person must be able to engage in work activities on a regular and continuing basis, which means 8 hours a day for 5 days a week, or an equivalent schedule.

Role of the Psychologist It is within the parameters of these definitions that the SSA reviews available medical documentation to determine the extent to which a person is unable to work. This determination takes into account both physical and mental disabilities. If limitations imposed by physical disabilities do not result in a finding of disability, then mental disabilities may be taken into account. If both mental and physical disabilities result in an inability to engage in substantial gainful activity, then a finding of “disabled” is appropriate. The psychologist evaluating these issues may be the treating psychotherapist or behavioral manager, or may be an evaluating expert. Although most psychologists now recognize that these roles should be separated (Greenberg & Shuman. 1997), the SSA may require the psychotherapist to comment upon these issues if the therapy

464

William E. Foote

record provides sufficient basis for answering the disability-related questions. SSA often prefers to gain information from the treatment provider because of the longitudinal quality of the data gathered in treatment (Social Security Administration, 1996). The treating professional will be required to review the claimant’s capacity according to SSA guidelines. The psychologist must follow the same guidelines when conducting an independent psychological evaluation of the claimant. In either situation, just as in the case of the IME, the definition of disability is not in the hands of the psychologist. Rather, the mental health professional must make the effort to learn and follow the SSA guidelines in order to produce a product that is useful to the SSA system. Reference to the SSA criteria for Mental Disorders and Impairments is essential.

The Assessment Process The SSA evaluation consists of two parts. The first part is a discussion of the clinical findings that establish whether the person has a diagnosable mental or physical condition. This part of the evaluation makes reference to the SSA “listings” (Social Security Administration, 2005b). These are the criteria used by the SSA for purposes of diagnosis. They do not necessarily match the more familiar diagnostic criteria contained in the DSM-IV (American Psychiatric Association, 2000), but correspond in general ways with the standard nomenclature. The criteria are arranged in nine diagnostic categories: organic mental disorders; schizophrenic paranoid and other psychotic disorders; affective disorders; mental retardation; anxiety-related disorders; somatoform disorders; personality disorders; substance addiction disorders; and autistic disorder and other pervasive developmental disorders (Social Security Administration, 2005b). As an example, Figure 17.2 contains the criteria for schizophrenic, paranoid, and other psychotic disorders (Social Security Administration, 2005b). Please note that the initial part of the listings are the positive and negative symptoms commonly associated with schizophrenia. In Figure 17.2, also note how the SSA discusses the second part of the criteria. Part B provides a metric of the degree to which the symptoms of schizophrenia actually constitute a disability. In this case, the illness must adversely affect two of these four elements: (1) activities of daily living (ADLs), (2) social functioning, (3) aspects of work related behavior that contribute to focusing on the job and doing it in a timely way (e.g., maintaining concentration, persistence, or pace), or (4) being unable to work because of recurrent exacerbations of symptoms evident in psychotic decompensation. The severity of impairment must be marked, which the SSA defines rather vaguely as “more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis” (Social Security Administration, 2005b). In SSA parlance, ADLs refer to those things people do every day in order to live their lives (see earlier discussion and Figure 17.1). For example, shopping, cooking, cleaning, using public transportation, paying bills, appropriate grooming and

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

465

1
('+(
","
%
),(*/
%(
*)
)%(()
)
#*
-$
*
('+(#$*)
$
%*

$



(
)*)5
%(
-$
*
('+(#$*)
$

(
)*)5


""/
%+#$*
&())*$
*(
%$*$+%+)
%(
$*(#**$*
%
%$
%(
#%(
%
*
%""%-$


"+)%$)
%(
""+$*%$)
%( 
**%$
%(
%*(
(%))"/
)%($0
,%(
%( 
$%($
"%%)$$
%
))%*%$)
""%"
*$!$
%(
&%,(*/
%
%$*$*
%
)&

))%*
-*
%$
%
*
%""%-$


"+$*
2*
%( 
"*
2*
%( 
$&&(%&(*
2*

 
#%*%$"
-*(-"
$%(
)%"*%$ 


)+"*$
$
*
")*
*-%
%
*
%""%-$


(!
()*(*%$
%
*,*)
%
"/
",$
%(


(!
3+"*)
$
#$*$$
)%"
+$*%$$
%(


(!
3+"*)
$
#$*$$
%$$*(*%$
&())*$
%(
&
%(


&*
&)%)
%
%#&$)*%$

%
.*$
+(*%$  
""/
%+#$*
)*%(/
%

(%$
)0%&($
&($%
%(
%*(
&)/%*
)%((
%
*
")*

/()
+(*%$
**
)
+)
#%(
*$

#$#"
"#**%$
%
"*/
*%
%
)
-%(!
*,*)
-*
)/#&*%#)
%(
)$)
+(($*"/
**$+*
/
#*%$
%(
&)/%)%"
)+&&%(*
$
%$
%
*
%""%-$


&*
&)%)
%
%#&$)*%$

%
.*$
+(*%$
%( 

()+"
))
&(%))
**
)
()+"*
$
)+
#($"
 +)*#$*
**
,$

#$#"
$()
$
#$*"
#$)
%(
$
$
*
$,(%$#$*
-%+"

&(*
*%
+) * $,+" *% %#&$)* %( 
+(($*
)*%(/
%

%(
#%(
/()4
$"*/
*%
+$*%$
%+*)

"/
)+&&%(*,
",$ (($#$*
-*
$
$*%$
%
%$*$+
$
%(
)+
$
(($#$*

Figure 17.2 12.03 Schizophrenic, paranoid, and other psychotic disorders: Characterized by the onset of psychotic features with deterioration from a previous level of functioning. (Social Security Administration, 2005b.)

466

William E. Foote

hygiene, maintaining a residence, et cetera. ADLs would be examined in terms of how independent the person was in performing these essential functions, whether the person did the appropriate thing at the appropriate time, whether the person was effective at performing the action, and whether the person could sustain the activity over time. For example, even if a person could explain how to pay a bill, if that person fails to pay their bills on a sustained basis because of a mental-illness-imposed disability, then the impairment could be considered marked. Social functioning refers to the claimant’s “capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals” (Social Security Administration, 2005b). This criterion relates to the ability of the person to develop and maintain social relationships, and to get along with essential people in their lives, such as family members, neighbors, friends, grocery clerks, bus drivers or landlords. Impaired social functioning may be evident in a history of evictions, firings, altercations with family members and friends. The absence of relationships may also be important: avoidance of social contacts and social isolation would be evidence of impaired social functioning. An understanding of social customs and implicit social rules is important, as well as an awareness of other’s feelings and an ability to work cooperatively with others. Determination of whether any of these impairments are marked focuses on the degree and persistence of the problem and the extent to which it may impair critical functions, such as maintaining consistent work performance. Concentration, persistence, or pace “refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings” (Social Security Administration, 1995b). Work settings are the most common place where these problems become evident, although other settings may also reflect impairments in this area. The client’s self-report, psychological testing, and observation may all be used to determine the extent of impairment in this area. For example, tasks measuring short-term memory or clerical skills may be used. However, even data from these measures should be supplemented by confirmation of those impairments from other sources. A work evaluation may allow for assessment of concentration, persistence, or pace by examining the claimant’s ability to sustain work at appropriate production standards in either a real or simulated work task such as assembling objects, sorting materials, filing cards, or looking up phone numbers. The measures in these tasks may pertain to the extent to which the claimant is able to work consistently until the task is completed or to repeat a sequence of actions. The examiner must keep in mind that an assessment of these capacities in the context of a psychological evaluation may lack validity when applied to an actual work situation, with the most common errors in the overestimation of the claimant’s abilities. The latter often includes time pressures, a lack of structure, or a low level of support. The timely completion of a simple task may not determine if the claimant is able to sustain attention for a complex one. Even if the claimant is able to complete a sequence of tasks, the claimant may require significant supervision or support, or may be unable to perform the task in accordance with accuracy standards. Too many breaks or a high number of distractions or interruptions may also signal impairment related to this criterion.

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

467

Episodes of decompensation are periods in which the claimant is experiencing increases in symptoms in conjunction with a loss of adaptive functioning, usually measured by a reduction in capacity to perform ADLs, impaired social functioning, or reductions in concentration, persistence or pace. A review of the claimant’s medical records may reveal periodic exacerbations of symptoms that result in hospitalization, provision of medication, and withdrawal from usual social and work-related activities. In most cases, these periods of decompensation require placement in a more structured setting and increased intensity of treatment, sometimes with the use of psychotropic medication. For these periods of decompensation to be considered “of extended duration” the record must show three such episodes within a 1-year period, or an average of one every 4 months, with each episode lasting 2 weeks. Less frequent episodes of shorter duration may also be considered if these episodes cause a significant functional impact upon the ability of the claimant to work.

Documentation Documentation is required to provide sufficient evidence to “(1) establish the presence of a medically determinable mental impairment(s), (2) assess the degree of functional limitation the impairment(s) imposes, and (3) project the probable duration of the impairment(s)” (Social Security Administration, 2005b). This documentation may come from appropriate sources such as a medical history, records of mental status examinations, psychological testing, and records related to treatment, including hospitalizations. These records should reflect the issues, such as concentration and persistence, noted earlier. In addition to documentary sources, the claimant can also be a source of important data. The claimant can accurately discuss limitations placed upon activities by the disabling condition. Of course, for the psychologist conducting the evaluation, these descriptions should also be verified through other sources, such as documentation and psychological testing. The psychologist may also want to gain information directly from other sources, such as interviews with treating physicians, nurses, aides and physical therapists. Nonmedical sources, such as family members or neighbors, may also provide valuable data.

The SSA Assessment The data from these sources should reflect the natural history of the claimed impairment. In other words, the longitudinal course of the impairments should be evident through the various data sources, as it may reflect how the underlying disorder and its effect on functioning vary over time. An assessment at only one time may not adequately assess the severity of the impairment. If the claimant attempted to work, these work attempts may provide invaluable data about the severity of the impairments. What the claimant was hired to do, how well the claimant performed the duties, and what led to the termination of the work period are all important. The presence or absence of work supports, such as those

468

William E. Foote

provided in supported or sheltered employment settings, may provide some idea of the deficits to be remedied (see Foote, 2003). A mental status evaluation (MSE) is a necessary part of the SSA evaluation. It may be assessed as a natural part of the clinical interview and history, and will include the common elements associated with this review. Please see the discussion on this topic earlier in this chapter. Psychological testing is a common and necessary part of SSA psychological examinations. Please see the section on testing elsewhere in this chapter for details concerning the use of testing in disability evaluations. Specifically in the context of the SSA evaluation, intelligence testing is critical for the assessment of mental retardation, brain injury, or learning disability. In cases in which mental retardation is the issue, intelligence testing must be done and may be the most important basis for adjudication. The Wechsler Scales (the Wechsler Adult Intelligence Scale-III, Wechsler Intelligence Scale for Children-III) are considered the “gold standard” for intelligence testing because of their well accepted definitions for IQ and their long history in the field. If the test produces more than one IQ score, such as the Verbal, Performance and Full-Scale IQs of the Wechsler scales, the SSA uses the lowest of those in determining whether the claimant meets the listings for mental retardation. In situations in which the Wechsler scales may be biased, such as the assessment of a person whose first language is not English, or one from a markedly different cultural setting, other measures such as the Test of Non-Verbal Intelligence (TONI; Brown Sherbenou & Johnsen, 1997) may be employed. Personality assessment measures may also be used much in the same way as discussed in the IME part of this chapter. In this case, these instruments may be used to assist in arriving at a DSM-IV diagnosis necessary for the completion of the evaluation related forms.

The SSA Report A report to the SSA must include specific elements: “(a) the claimant’s medical (or mental health) history; (b) clinical findings, such as the results of physical or mental status examinations; (c) laboratory findings, such as blood pressure, x-rays, etc.; (d) diagnosis; (e) treatment prescribed with response and prognosis; and (f) a statement providing an opinion about what the claimant can still do despite his or her impairment(s), based on the medical source’s findings on the above factors. This statement should describe, but is not limited to, the individual’s ability to perform work-related activities, such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling. In cases involving mental impairments, it should describe the individual’s ability to understand, to carry out, and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting. For a child, the statement should describe his or her functional limitations in learning, motor functioning, performing self-care activities, communicating, socializing, and completing tasks (and, if a child is a newborn or young infant from birth to age 1, responsiveness to stimuli)” (Social Security Administration, 2006e).

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

469

The SSA requires more particular attention to some issues in the assessment of mental disorders. The evaluation report should go beyond a description of the claimant’s signs, symptoms, psychological test results, and diagnosis. The report should include the effect of the mental or emotional disorder upon the claimant’s ability to function in personal, social, and occupational spheres. The report should include general observations of how the claimant came to the evaluation—whether the person was alone or accompanied, how far the claimant traveled to get to the evaluation, and if an car was used, who drove. The examiner should comment upon the claimant’s general appearance, including dress and grooming, along with observations of the claimant’s general attitude and degree of cooperation, posture and gait, and general motor behavior, including involuntary movements. If an informant or collateral source is utilized, the psychologist should identify the person providing the history and should attempt to estimate the reliability of the history. The claimant’s chief complaint and the history of the present illness is the next area for exploration. This should include: (1) Date and circumstances of onset of the condition; (2) date the claimant reported that the condition began to interfere with work, and how it interfered; (3) date the claimant reported inability to work because of the condition and the circumstances; and (4) attempts to return to work and the results. The report should include an account of outpatient evaluations and treatment for mental or emotional problems including the names of treating sources, dates of treatment, types of treatment (names and dosages of medications, if prescribed), and response to treatment. Hospitalizations should also be addressed, including the names of the hospitals, the dates of hospitalization, the treatment received, and the response to that treatment. The SSA provides additional guidance for reports concerning particular mental disorders. For example, for schizophrenic disorders, the SSA requires information about: (1) Periods of residence in structured settings such as half-way houses and group homes; (2) frequency and duration of episodes of illness and periods of remission; and (3) side effects of medications (Social Security Administration, 2000). It should be noted that the narrative that would be normally classified under Summary and Conclusion section is very important for the SSA adjudicator. This will allow the examiner to bring together all the information about the functional limitations and residual capacities of the claimant. It is also a chance for a practical discussion of real-life limitations faced by the individual, to whatever extent they exist. Case Example March 8, 20XX Mr. Martin Carter, Disability Claims Representative Central Mutual l 1295 State Street Springfield, Ohio Re: Roberto Sefarino, M.D. DOB 09/12/1947 Claim No. 2006D1987

470

William E. Foote

Dear Mr. Carter: As you requested, I have conducted a psychological evaluation of Dr. Roberto Sefarino. I met with him on February 28 and 29, 20XX. On the first date, he was administered a battery of psychological tests. These included the Minnesota Multiphasic Personality Inventory-2, and the Personality Assessment Inventory. In addition, he was administered the Wechsler Adult Intelligence Scales III, the Rey Complex Figure Test, and the Test of Memory Malingering. Dr. Sefarino returned to my office on 2/29/20XX and I completed 3.0 hours of interview with him that date. In addition, I have conducted telephone interviews with Dr. Sefarino’s wife, Josephina, and with his former partner, Dr. Helmut Kruger. Also, I have had an opportunity on March 6, 20XX, to conduct a brief interview with Dr. Harold Shultz, Mr. Sefarino’s attending physician. The purpose of this evaluation is to determine whether Dr. Sefarino is suffering from any disease or disorder that would constitute a disability under the terms of his current disability policy. In addition to my evaluation, Dr. Sefarino was also seen by Dr. Gerald Ortiz on March 4, 20XX, and Dr. Ortiz’s report will be sent to you under separate cover. In order to discuss the issues in this evaluation, I will begin by describing Dr. Sefarino’s behavior during the interview, and his Mental Status Evaluation (MSE). Then, I will review Dr. Sefarino’s personal history. That will be followed by a review of his medical records. I will then discuss my collateral interviews. The report will then turn to his psychological test data and will conclude with a summary section. Behavioral Observations and MSE: Dr. Sefarino appeared early, appropriately dressed in a shirt, dark slacks, and a sports coat. He appears somewhat older than his stated age, and wears his “salt and pepper” hair in a swept-back style popular in the 1980s. He was provided with a form for informed consent. This was reviewed with him by the examiner, and he signed it before examination procedures were initiated. He sometimes spoke in a rapid and pressured manner, and I had to ask him to slow down on a number of occasions so I could take notes of our conversation. Dr. Sefarino appeared to be angry about being forced to undergo a psychological evaluation and, at times, he refused to answer questions about some aspects of his childhood, complaining that the questions invaded his privacy. In the course of the interview, I conducted a Mental Status Examination. He was oriented as to person, place, time, and situation. His psychomotor activity was generally calm. His attitude was appropriate for the circumstances, although he did appear to be more guarded than most individuals I have met under similar circumstances and was quite assertive at times as noted above. His affect was appropriate for the circumstances and showed no evidence of depression, flatness, or lability. He did not appear to be anxious at any time and his affect was typically congruent with the topic being discussed. His mood was normal and showed no evidence of irritability, sadness, helplessness, fearfulness, or depression. He did not appear to be withdrawn, anxious, or dysphoric. His reasoning was intact. His speech was of normal rate, tone, and speed. There was no evidence of pressure or incoherence. His thought processes were intact and appropriate for the circumstances. He showed no evidence of ideas of reference, confusion, or poverty of thought. Thought processes showed no evidence of thought insertion, circumstantiality, tangentiality, or flight of ideas. He did not complain of visual or auditory hallucinations. His judgment was generally intact and his insight was good. He was able to focus his attention on the tasks put before him, and his short and long-term memory were intact. However, he did complain of not be able to remember specific dates and had some difficulty with his personal history because he could not remember particular work-related events. History: Roberto Luis Sefarino was born on September 12, 1946, in Tierra Amarilla, New Mexico. His father Max spent most of his life working as a laborer and died at age 52 in 1963 of a myocardial infarction. His mother, Mary, is living and is currently 85 years

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

471

old. After his father’s death, his mother worked as a key punch operator for the Internal Revenue Service. He has one brother, Rudolfo, who is 9 years younger who has worked as a pharmacist. Dr. Sefarino reports that he was raised in Tierra Amarilla throughout his childhood. Dr. Sefarino reports no history of birth related problems, no history of drug or alcohol problems, and no history of mental illness in his family. His childhood was free of many of the trauma commonly experienced by people. He experienced no serious physical illnesses, broken bones, or physical or sexual abuse. He reports that he had no difficulty in school, and got along with other well with other children. He reports no history of serious disciplinary problems, running away from home, juvenile arrests, nor drug or alcohol use as a juvenile. Following graduation from Espanola High School in 1964, he attended New Mexico Highland University for undergraduate school. He started out in pharmacy and was in a 5- year class beginning with 1 year of liberal arts and continuing with 4 years of pharmacy. He did well in pharmacy school and continued to work at a local pharmacy, where he started out working as a 13-year-old delivery boy. He reports that he attended Tulane Medical School and finished in 1969. Then, he went to Claunch, New Mexico, to work at a local community hospital for about 1 year. He stayed and served as OB/GYN resident and finished his residency in 1973. Because he attended medical school on the “Barry” plan, even though he had worked in a rural setting, he still owed the U.S. Government 2 years of military service and went into the Army. He was stationed at Ft. Bliss, near El Paso, where he served as a doctor at William Beaumont Hospital. However, he describes himself even in those days as “aggressive.” He says, “I define that as being opinionated, do it sort of my way. I was never angry or mean or whatever.” But, for example, he ran into trouble with his superior officers because, having lost his military hat early in his military career, he refused to buy another one and would walk around the base without a “cover.” At times he would wear a ski jacket over his uniform. These constituted what he considered “authority and rebellious issues.” He also would not get a hair cut for the first 6 months he was in the military. In spite of these actions, in the course of his military service he was never given any kind of judicial or nonjudicial punishment. However, his behavior may have cost him promotions because he was still a major when he was honorably discharged in 1979. Dr. Sefarino then set up his practice in Santa Fe, New Mexico, and was moonlighting at St. Michael’s Hospital in the emergency room. A local, older OB/GYN physician offered him an opportunity to join his practice. His practice developed very well, and soon they were the largest and busiest practice in town. The other doctor eventually retired, and Dr. Sefarino brought in other partners. This partnership fell apart in about 19XX. However, by that time his practice had changed a great deal. In the mid 19XXs, he and five other doctors decided to open an urgent care center, which they called the Centro Salud Familiar. This was an after-hours operation, designed to fill a void in medical care in the community. However, this clinic garnered a great deal of resentment from their colleagues, and he reports that he got letters from other doctors, almost death threats. In response to this pressure, they stayed open from 7:00 a.m. until 11:00 p.m. and became the family doctor for a significant number of people. The business was very successful, and they opened a second site. At that point, he decided to expand the practice into doing x-rays and other lab operations. Ultimately, the partners bought a 10,000-sq-ft building and had 34 doctors working there. The clinic also had the first free-standing imaging center in the region, which included a CAT scan, and fluoroscope. Dr. Sefarino reports that he was running these businesses and was also maintaining a full time OB/GYN practice. He was the busiest OB/GYN in town, doing more deliveries per month than any other doctor in the community.

472

William E. Foote

In 19XX Dr. Sefarino developed a number of economic problems because of a change in tax laws, which resulted in many of the real estate shelters in which he was invested losing much of their value. He consulted a bankruptcy attorney and even got a California license, in case he needed to leave town. As part of his reaction to that stress, his care for patients deteriorated, and he consequently had several malpractice suits filed against him. This was the first time he got into difficulty with the local hospital, and the Executive Committee of the hospital met and determined that he needed psychiatric care. He started seeing Dr. Shultz at that time. After seeing Dr. Shultz and getting into individual therapy, his condition improved, he became a much nicer person and in general, things were better for a long time. As his financial condition improved, he was able to settle his debts. He had a good cash flow, and his ancillary businesses did very well. His clinic added more specialist physicians, and he hired an administrator, although Dr. Sefarino was still the managing partner. He was seeing Dr. Shultz fairly regularly and he reports that the psychotherapy was very good for him. Eventually, Dr. Shultz added Prozac to his treatment because Dr. Sefarino could not control his emotions by relying on “conscious thought.” Eventually, Dr. Sefarino and the hospital staff reached a rapprochement, the number of nurse complaints diminished, and for a number of years there were no problems with his behavior or with his practice. During that interval, he had no more malpractice suits. In the mid 19XXs, he started adding more specialties to the Centro Salud Familiar. Other than that, there were no other serious stresses in his life. But, 8 years after his last psychiatric problems, Dr. Sefarino started “losing it” again. The first sign was that he was not keeping up with his medical charting, which resulted in his getting notes from the hospital staff telling him that he was in violation of charting rules. Dr. Sefarino realizes in retrospect that he was not caring enough about what was going on and not recognizing the impact or the severity of his failures to keep up with the demands of his practice. Also, he was starting to act like a “crazy surgeon” in the operating room again, shouting at nurses and being overly demanding of his staff. This prompted him to go back to see Dr. Shultz after a hiatus, and his psychiatrist promptly increased his dosage of Prozac. Things got a little better and as a stress management measure, he dropped the obstetrics part of his practice so that he could focus on the gynecology work. This change would reduce his work load and limit the nights that he was on call. However, he was having emotional ups and downs, even with the Prozac. Although his emotional swings were not as bad with that medication, he was still having periodic depression alternating with periods of excitement and irritability. However, from Dr. Sefarino’s perspective, he did not improve in the keeping up with his charts and he also had some “bad cases” in the operating room. When questioned about the “bad cases,” it is evident that these were instances in which his mistakes led to harm for his patients. These earned increased scrutiny and eventually discipline from the hospital executive committee. These cases resulted in malpractice suits that caused the medical staff to take steps to remove his hospital privileges. However, because of his professional reputation and standing in the hospital, the medical staff actually gave him several chances to conform his practice to community standards. Dr. Sefarino could “pull it together” for several months at a time, but found that he could not sustain the improved behavior. Eventually, his privileges were withdrawn, and the New Mexico Board of Medical Examiners was notified. Dr. Sefarino made a deal with the hospital that he would relinquish his privileges and practice office gynecology only. The Board of Medical Examiners agreed and he has been on restricted practice. He does not practice in the hospital, seeing only gynecological patients in his private office.

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

473

About a year before this psychological evaluation, he and his partners sold Centro Salud Familiar to a physician manager group. He maintained a position as administrator, but the position became more stressful and in September of the year before the evaluation, he resigned. Since that time, Dr. Sefarino has been working as a realtor. Thirteen years ago, he had gotten his license as a realtor and he reports that he enjoys doing that work. He goes to work every day at the broker’s office and sometimes will stay for four hours and sometimes will work all day. Also, since September, he and his wife have been doing a traveling a great deal. So far, he says he has not made a single penny in the real estate business, but has some money in the “pipeline.” He is currently not practicing any kind of medicine and deriving no income at all from the Centro Salud Familiar. He finds his moods still fluctuate, and he is still taking Prozac. Dr. Sefarino reports that currently his sleep is good, his appetite is good, and he has had no periods of weight loss or gain other than those which were voluntary. He does not find himself dwelling on death. He does report occasional periods of anhedonia in which he experiences lack of satisfaction or pleasure in daily activities. He reports that is part of his “down periods” and, when he is in these stages, he will avoid going out to dinner and will just want to stay home. Review of data from collateral sources: I conducted a 1-hour telephone interview with Mrs. Sefarino. She indicated that she has been married to Dr. Sefarino for 38 years, and that their marriage has been good, although living with Roberto has been a little like “riding a roller coaster.” All the time she has known him he has been prone to large changes in his mood and activity level. At times, he will be down, and will do hardly anything except go to work. He sleeps more, his appetite is off, and he gets little pleasure from his children and grandchildren. She reports that her husband has experienced recurrent alternating periods of depression and hyperactivity and irritability. When he is down, she has trouble “getting him going,” and he complains of fatigue early in the afternoons. He experiences early awakening, and is generally down and sad. In the times when he is hyperactive, he can sometimes go days without sleeping. He often focuses on a business project, working out business plans at night, and conducting marathon phone conversations during the daytime. During these times, he is prone to being irritable and difficult. When he is home, he snaps at her over little things, and becomes a perfectionist about how the house is kept. She reports that the medication he has taken have helped the “down” times, but have not done much to attenuate the “up” periods. Dr. Helmut Kruger, Dr. Sefarino’s former business partner, reports a similar up and down pattern in Dr. Sefarino’s mood and activity levels. Although he was aware of his partner’s down periods, these did not appear to affect his work very much. However, Dr. Kruger recalls that Dr. Sefarino’s behavior during his “up” periods was much more problematical. His irritability would result in his upbraiding nurses, aides, secretarial staff, and sometimes even other physicians. These “corrections” as he called them, were often punctuated with profanity, and to most of the recipients, appeared to be focused on trivial issues. In spite of these episodes, Dr. Sefarino was known as a very hard worker, and showed occasional brilliance in his business decisions. When questioned about the timing of Dr. Sefarino’s mood swings, Dr. Kruger indicates that the “out of control” behavior noted above occurred during the two periods when Dr. Sefarino was under significant stress. Review of medical records: The medical records indicate that Dr. Sefarino was first seen by Dr. Shultz on December 18, 19XX. At that time Dr. Shultz conducted a psychiatric evaluation and arrived at the diagnosis of cyclothymia and noted access to obsessive–compulsive personality traits. He reported that the diagnosis was based upon Dr. Sefarinos’s

474

William E. Foote

observation that he had “cycles between being very up and energetic and being down and despondent. These episodes are usually of very brief duration, usually no more than a day or two at a time.” At that time Dr. Shultz noted that he was going to begin Dr. Sefarino’s treatment with only psychotherapy. Dr. Shultz wrote a letter to the president of the medical staff of St. Michael’s Hospital on June 30, 19XX. At that time, he reported that Dr. Sefarino had turned out to be a “quite a good psychotherapy patient” and he had been seeing him for once weekly sessions. At that time, he and Dr. Sefarino were reducing the frequency of his sessions to several per month. Dr. Shultz wrote another letter on February 23, 19XX, and indicated that the frequency of sessions had been reduced to once every two to three weeks. Dr. Shultz noted some significant changes in Dr. Sefarino’s behavior. “He has made great effort to alter his style of relating to people and to maintain better control of his anger. We’ve explored where some of his problems have arisen in the past in interpersonal relationships, and he has been able to use psychotherapy effectively to increase his insight and to develop new strategies for dealing with situations that are stressful to him and which have caused him to lose control in the past.” Dr. Sefarino’s treatment with Dr. Shultz became significantly less intensive following May of 1989. Dr. Shultz saw him once again in February of 19XX and did not return to treatment until March of 19XX, when he saw Dr. Shultz approximately once per month through June of 19XX. He was again on hiatus in the sessions until September of 19XX and since that time records exist for some five sessions. Dr. Shultz completed a letter dated May 6, 19XX, and summarized his perspective as follows, “Based upon the fact that Dr. Sefarino has voluntarily relinquished his hospital privileges at the hospital for that past year because of his own recognition of his difficulties at the hospital and coping with the increased stress of hospital work and OB/GYN, I believe he is justified in applying for disability. I do not foresee Dr. Sefarino being able to return to surgical practice or inpatient practice of obstetrics and gynecology in the foreseeable future. If he is allowed to limit himself to administrative work and clinic work I think he can handle the stress of this type of professional activity, but he is at risk for further problems with his mood and behavior if he attempts to return (to) inpatient or surgical practice.” In my recent conversation with Dr. Shultz, he reports that he did see a cyclothymic pattern in Dr. Sefarino’s behavior, even between his stressful periods. He reports that Dr. Sefarino appears to be quite serious about dealing with his problems on the job. He takes responsibility for his behavior and in part his withdrawal from practice has been an attempt to avoid harming patients. He reports that Dr. Sefarino experiences his emotional reactions, such as his anger and loss of behavioral control as being somehow alien to himself. He does not like it when he “loses it.” Psychological testing: The Wechsler Adult Intelligence Scale-III that was done with Dr. Sefarino indicates that he is currently functioning at a Full Scale IQ of 128, with a Verbal IQ of 134, and a Performance IQ of 116. These place him at the 97th, 99th, and 86th percentile compared to the population generally. A closer view at his skills indicates that his Verbal Comprehension is consistent with what would be expected from his IQ scores. His Perceptual Organizational skills are somewhat lower and consistent with his Verbal IQ. His Working Memory is in the expected range. However, his Processing Speed is somewhat lower than one might expect, more equivalent with IQ of 106; that is, at the 66th percentile. On the basis of the TOMM, there was no evidence in that Dr. Sefarino was in any way attempting to perform at a lower level than he could actually do. The Minnesota Multiphasic Personality Inventory-2 reflected a pattern that was well within the normal range. In fact, all but two of his scales were below a T Score of 50,

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

475

indicating a well within normal limits profile. In spite of this relatively low profile, there is no evidence of under reporting in validity scales for this measure. The other self-report measure, the Personality Assessment Inventory, produced a very normal pattern as well. This pattern produced no elevations that would be considered to indicate the presence of any significant psychopathology. This scale showed no evidence of either manic or depressive trends. Summary and Conclusion. In reviewing Dr. Sefarino’s records, it is evident that he has experienced two periods of reduced vocational functioning. The first occurred about 15 years ago when he experienced stress in the expansion of his business while maintaining a heavy OB/GYN practice. At this time, his work deteriorated and he became the focus of criticism of his colleagues and his coworkers. More recently, he has had a similar pattern, which has resulted in his loss of privileges at his local hospital and in threats of actions against him by the Board of Medical Examiners. During both of these periods, his family, his business partner, and his psychiatrist observed a number of mood changes in Mr. Sefarino. These included both elevated and irritable mood and periods of depression. Accordingly, Dr. Shultz has provided a diagnosis of cyclothymia as representing Dr. Sefarino’s condition. From Dr. Shultz’s perspective, this condition has caused him to be disabled from his work as a physician. On the basis of my evaluation with Dr. Sefarino, a more appropriate diagnosis would be Bipolar I disorder. On the basis of Dr. Shultz’s observations, it appears that this disorder may have been expressed in periods when it was milder, and cycled more rapidly. The expression of this disorder is complicated by an Axis II Narcissistic personality disorder. This persistent maladaptive personality pattern has produced interpersonal problems because of Dr. Sefarino’s arrogance and failure to take into account the welfare of others. This has led to a sort of ruthlessness not uncommon among successful businessmen. However, in a small community, his personality disorder has made him a pariah among his medical peers and the bane of other medical personnel who are called upon to work with him—which had a role in his business reversals, and may have contributed to his difficulties with the Medical Board. The current evaluation shows a remarkably benign pattern. Although Dr. Sefarino spoke rapidly at times in the interview, his speech was not pressured. Aside from some evidence of some depressive tendencies on Dr. Sefarino’s part, his testing was well within normal limits. His cognitive functioning is what one would expect given his history, although he does appear to be somewhat slower in his physical movements than one might expect, given the balance of the data. He does not appear to be experiencing rapid swings in mood at this time. He does not demonstrate a cyclothymic pattern. Even his personality disorder appears to be less evident within his current quiescent mood picture. The difference between what is seen at this time with Dr. Sefarino and what was observed by Dr. Shultz is twofold. First, it is evident that Dr. Sefarino reacts to periods of extreme stress with a shifting mood pattern. This pattern is much less evident and probably within the normal range when Dr. Sefarino is not under extreme stress. Second, he is currently taking an antidepressant, which he reports has “leveled out” his condition. Although an examination of Dr. Sefarino’s medical management is the domain of Dr. Ortiz’s evaluation, it is my impression that the combination of antidepressants and psychotherapy have been effective treatment modalities for Dr. Sefarino. Thus, I would offer no further treatment alternatives for his case. Given the current evaluation data, I think that Dr. Sefarino could function as an obstetrical/gynecological physician in his currently restricted role of office practice. Whether this restricted practice would be considered the “type of work done at the time

476

William E. Foote

of disability” is a matter of interpretation by the carrier. It is practice as a physician and it is effectively using his training and experience. However, it is a lower level of functioning than he has demonstrated in the past. Also, it would be my opinion that he could do a wide range of other work, including his current part-time occupation as a realtor. However, I am concerned that if he may experience a financial or personal reversal, he could be thrown into another manic episode, similar to the previous ones that resulted in disasters for both him and his patients. Although the testing did not reveal any diagnosable condition at this time, he is vulnerable to mood changes in response to stress. Thus, any further practice should be done in a partnership. I hope this has been of assistance to you in your evaluation of this case. If I may provide any further data or information, please feel free to call. Sincerely yours, Wilfred Jones, Ph.D.

Conclusion Both IME and SSA evaluations bring together a system for providing benefits and an individual seeking those benefits. Both kinds of evaluations have their own “culture” and requirements, and provide for the psychologist an opportunity to examine the current status of an individual in light of that person’s capabilities and deficits. To whatever extent the examiner’s interaction with the insured or claimant generates emotional reactions, the job of the examiner does not change. For example, if the SSA claimant has suffered a series of reversals in life culminating in the development of a claimed emotional disability, the examiner’s job is to review the records, interview and test the claimant, and write a report about the claimant’s capacities in light of the listings. In this case, the examiner’s compassionate reaction to the claimant’s distress is best channeled into a rather dry recitation of the claimant’s capabilities and deficits. This professional attitude and the precision it brings to the task will best serve not only the claimant, but the disability system as well. Endnotes 1 The author expresses his appreciation to David Vore for his assistance in preparing the IME material. His work in the area is seminal and his approach to the topic is thoughtful and thorough. In addition, the author appreciates the work of Terry Hipkiss in preparing the manuscript, and the sharp eye of his favorite editor, Cheryl Foote. 2. In this chapter, the phrase “independent medical evaluation” is used, even though these assessments are technically independent psychological evaluations. The term IME is generic, and refers to all evaluations conducted by health professionals to assess disability in relation to insurance claims. 3. Throughout the chapter, the term insured will be used to designate the examinee in the IME. In SSA cases the term claimant is used. Both terms are in preference to the term client, as the client in these evaluations is the insurance carrier, or may be the SSA.

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

477

References Acierno, R., Kilpatrick, D. G., & Resnick, H. S. (1999). Posttraumatic stress disorder in adults relative to criminal victimization: Prevalence, risk factors, and comorbidity. P. A. Saigh, J. D. Bremner et al. (Eds.), Posttraumatic Stress Disorder: A Comprehensive Text (pp. 44–68). Boston, MA: Allyn & Bacon. American Psychiatric Association. (2000). Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR) (4th ed.). Washington, DC: American Psychiatric Association. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57(12), 1060–1073. Benitez-Silva, H., Buchinsky, M., Chan, H. M., Rust, J., & Sheidvasser, S. (1999). An empirical analysis of the Social Security disability application, appeal, and award process. Labour Economics, 6, 147–178. Bremner, J. D., & Brett, E. (1997). Trauma-related dissociative states and long-term psychopathology in posttraumatic stress disorder. Journal of Traumatic Stress, 10(1), 37–49. Brown, L., Sherbenou, R. J., & Johnsen, S. K. (1997). Examiner’s Manual for the TONI-3, Test of Nonverbal Intelligence. Austin, TX: Pro-Ed. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15(6), 655–665. Crawford, S. (2001) What are the Facts Please? [Web Page]. URL http://www.about-disabilityinsurance.com/facts.html [2006, September 10]. Elliott, D. M., & Briere, J. (1992). Sexual abuse trauma among professional women: validating the Trauma Symptom Checklist-40 (TSC-40). Child Abuse & Neglect, 16(3), 391–398. First Financial Group. (2006) The History of Disability Insurance [Web Page]. URL http:// www.disability-insurance.com/disability-history/ [2006, September 10]. Foote, W. E. (2000). A model for psychological consultation in cases involving the Americans with Disabilities Act. Professional Psychology: Research and Practice, 31(2), 190–196. Foote, W. E. (2002). The clinical assessment of people with disabilities. E. Ekstrom, & J. Smith Individuals with Disabilities in Educational, Employment and Counseling Settings. Washington, D.C: American Psychological Association Press. Foote, W. E. (2003). Forensic evaluation in Americans with Disabilities Act cases. A. D. Goldstein, & I. B. Weiner Comprehensive Handbook of Forensic Psychology, Volume Eleven: Forensic Psychology. New York: John Wiley & Sons. Foote, W. E., & Goodman-Delahunty, J. (2005). Evaluating Sexual Harassment: Psychological, Social, and Legal Considerations in Forensic Examinations. Washington, DC: American Psychological Association Press. Foote, W. E., & Shuman, D. W. (2006). Consent for forensic psychological evaluation: rethinking the roles of psychologist and lawyer. Professional Psychology: Research & Practice, 37(3). Ford, J. D., & Kidd, P. (1998). Early childhood trauma and disorders of extreme stress as predictors of treatment outcome with chronic posttraumatic stress disorder. Journal of Traumatic Stress, 11(4), 743–761. Frederick, R. (1997). The Validity Indicator Profile Manual. Minneapolis MN: National Computer Systems. Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 50, 28–39. Hays, J. R., & Shaw, J. B. (2003). WASI profile variability in a sample of psychiatric inpatients. Psychological Reports, 92(1), 164–166.

478

William E. Foote

Heilbrun, K., Rogers, R., & Otto, R. (2002). Forensic assessment: Current status and future directions. In J. R. P. Ogloff (Ed.). Taking Psychology and Law into the Twenty-First Century (pp. 119–146). New York: Kluwer Academic/Plenum Publishers. Heilbrun, K., Rosenfeld, B., Warren, J. I., & Collins, S. (1994). The use of third-party information in forensic assessments: A two state comparison. Bulletin of the American Academy of Psychiatry & Law, 22 (3), 399–406. Heilbrun, K., Warren, J., & Picarello, K. (2003). Third party information in forensic assessment. In A. M. Goldstein (Ed.). Handbook of Psychology: Forensic Psychology (Vol. 11, pp. 69–86). Hoboken, NJ: John Wiley & Sons. Houtenville, A. J. (2005). Disability Statistics in the United States. Ithaca, New York: Cornell University Rehabilitation Research and Training Center on Disability Demographics and Statistics (StatsRRTC). Inwald, R. E., & Resko, J. A. (1995). Preemployment screening for public safety personnel. In L. VandeCreek, S. Knapp, & T. L. Jackson (Eds.). Innovations in Clinical Practice: A Source Book (Vol. 14, pp. 365–382). Sarasota, FL: Professional Resource Press/Professional Resource Exchange. JHA. (2006). 2005 U.S. Individual Disability Income Market Survey [Web Page]. URL http://www. jhaweb.com/central/datastore/studies/id_mrk_survey_2005.pdf [2006, September 10]. Kodimer, C. (1988). Neuropsychological assessment and Social Security disability: Writing meaningful reports and documentation. Journal of Head Trauma Rehabilitation, 3(1), 77–85. Millon, T. (1994). Millon Clinical Multiaxial Inventory-III: Manual. Minneapolis, MN: Pearson Assessments. Morey, L. C. (1991). Personality Assessment Inventory Professional Manual. Odessa, Fl: Psychological Assessment Resources. Pope, K. S., Butcher, J. N., & Seelen, J. (2000). The MMPI, MMPI-2, and MMPI-A in court testimony. The MMPI, MMPI-2 & MMPI-A in Court: A Practical Guide for Expert Witnesses and Attorneys (2nd ed., pp. 9–49). Washington, DC: American Psychological Association. Pryor, E. S. (1997). Mental disabilities and the disability fabric. In R. J. Bonnie, & J. Monahan (Eds.), Mental Disorder, Work Disability, and the Law (pp. 153–198). Chicago, IL: The University of Chicago Press. Resnick, H. S., Kilpatrick, D. G., Dansky, B. S., Saunders, B. E., & Best, C. L. (1993). Prevalence of civilian trauma and posttraumatic stress disorder in a representative national sample of women. Journal of Consulting and Clinical Psychology, 61(6), 984–991. Roesler, T. A., & McKenzie, N. (1994). Effects of childhood trauma on psychological functioning in adults sexually abused as children. The Journal of Nervous and Mental Disease, 182(3), 145–150. Rogers, R. (1987). Ethical dilemmas in forensic evaluations. Behavioral Sciences and the Law, 5, 149–160. Rogers, R., & Bender, S. D. (2003). Evaluation of malingering and deception. In A. M. Goldstein (Ed.). Handbook of Psychology: Forensic Psychology, (Vol. 11, pp. 109–129). Hoboken, NJ: John Wiley & Sons. Rogers, R., Gillis, J. R., Dickens, S. E., & Bagby, R. M. (1991). Standardized assessment of malingering: Validation of the structured interview of reported symptoms. Psychological Assessment, 3(1), 89–96. Rogers, R., Hinds, J. D., & Sewell, K. W. (1996). Feigning psychopathology among adolescent offenders: Validation of the SIRS, MMPI-A, and SIMS. Journal of Personality Assessment, 67(2), 244–257.

Evaluations of Individuals for Disability in Insurance and Social Security Contexts

479

Social Security Administration. (1996). SSR 96-8p: Policy Interpretation Ruling Titles Ii And Xvi: Assessing Residual Functional Capacity In Initial Claims. Retrieved August 16, 2006 from http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-08-di-01.html#fn2. Social Securithy Administration. (2000). Consultative Examinations: A Guide for Health Professionals: Part IV—Adult Consultative Examination Report Content Guidelines Retrieved September 27, 2006 from http://www.ssa.gov/disability/professionals/ greenbook/ce-adult.htm. Social Security Administration. (2005a). Historical Background and Development of Social Security. Retrieved August 16, 2006 from http://www.ssa.gov/history/briefhistory3.html. Social Security Administration. (2005b). Disability evaluation under Social Security: Mental Disorders, Adult. Retrieved August 24, 2006 from http://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm. Social Security Administration. (2006). Social Security Handbook. Retrieved August 16, 2006 from http://www.ssa.gov/OP_Home/handbook/ssa-hbk.htm. Social Security Administration. (2006a). Definition of Disability for Disabled Worker’s Benefits. Retrieved August 16, 2006 from http://www.ssa.gov/OP_Home/handbook/handbook.05/handbook-0507.html. Social Security Administration. (2006b). Supplemental Security Income Home Page. Retrieved August 16, 2006 from http://www.ssa.gov/notices/supplemental-security-income/. Social Security Administration. (2006c). Supplemental Security Income (SSI). Retrieved August 16, 2006 from http://www.ssa.gov/pubs/11000.html#part3. Social Security Administration. (2006d). Disability Evaluation Under Social. Retrieved August 16 from http://www.ssa.gov/disability/professionals/bluebook/general-info.htm. Social Security Administration. (2006e). Disability Evaluation Under Social Security (Blue Book) Part II—Evidentiary Requirements. Retrieved August 16 from http://www.ssa.gov/disability/professionals/bluebook/evidentiary.htm. The Psychology Corporation. (1999). Wechsler Abbreviated Scale of Intelligence Manual. Dallas, TX: The Psychology Corporation. Tombough, T. M. (1997). The Test of Memory Malingering (TOMM): Normative data from cognitively intact and cognitively impaired individuals. Psychological Assessment, 9, 260–268. Vore, D. (2005). Independent Psychological and Psychiatric Evaluations: Clinical, Ethical and Practical Issues. American Academy of Forensic Psychology Workshop Series, Presentation in Vancouver, BC, October, 2005. Vore, D. (2006). The disability psychological independent medical evaluation: case law, ethical issues and procedures. A. Goldstein (Ed), Forensic Psychology: Emerging Topics and Expanding Roles (pp. 489–510). Hoboken, NJ: Wiley and Sons. Wechsler, D., (1997). Wechsler Adult Intelligence Scale—Third Edition Administration and Scoring Manual. San Antonio, TX: The Psychological Corporation. Weissman, H. N., & DeBow, D. M. (2003). Ethical principles and professional competencies. In A. M. Goldstein (Ed.). Handbook of Psychology: Forensic Psychology (Vol. 11, pp. 33–53). Hoboken, NJ: John Wiley & Sons. Wilkinson, G. S., & Robertson, G. J. (2006). WRAT4 Professional Manual. Lutz, FL: Psychological Assessment Resources. Wilson, A. E., Calhoun, K. S., & Bernat, J. A. (1999). Risk recognition and trauma-related symptoms among sexually revictimized women. Journal of Consulting and Clinical Psychology, 67(5), 705–710. Zasler, N. D., & Martelli, M. F. (2003). Mild traumatic brain injury: Impairment and disability assessment caveats. Neuropsychological Rehabilitation, 13(1–2), 31–41.

18 Personal Injury Evaluations David D. Fox

Over recent years psychologists have increasingly played a variety of roles in forensic matters. One of the most common of these, reflecting a rise in lawsuits in general, is in personal injury cases. The participation of psychology in part reflects maturation of the field. Psychological knowledge has expanded and psychological procedures have become more reliable and accepted in the scientific community. Psychology is particularly well suited for addressing issues of interest to the courts due to its humanistic orientation and its rigorous empirical data. Nevertheless, training in psychology is usually oriented towards nonforensic clinical practice and, as this chapter demonstrates, there are significant distinctions between clinical and forensic practices. This is particularly true in the area of personal injury lawsuits. The underlying principle in forensic psychology involves not only the competent practice of psychology but the appropriate appreciation of the legal context. Larrabee (2005) has described some principles regarding the interaction of the neuropsychologist with the attorney, which are also applicable to forensic psychology in general. It is important for the psychologist when acting in the role of an expert to understand the legal basis for the role. This may require “knowing the most applicable evidentiary law, landmark legal cases relevant to psychology and the basic civil rights of plaintiffs” (Larrabee, 2005, p. 31). It is crucial to practice good psychology utilizing the scientist/practitioner role that relies both on the body of scientific knowledge and sound clinical judgment. Further, it is essential to adhere to ethical principles, which is often a challenge in personal injury cases. Finally, to be effective as a psychologistexpert it is necessary to recognize basic legal dynamics, trial procedures, interpersonal demands, and even the personalities of those involved. This principle can be thought of as the “clinical skill” of forensic practice. This chapter describes the role of psychologists in such cases, differences from clinical practice, and recommendations about providing quality professional and ethical services. A case example illustrates some of these principles. Personal Injury Law In contrast to criminal matters, personal injury law has to do with “wrongs” or torts that the law has determined are best adjudicated through civil rather than criminal courts. “‘Tort law’ is a system of law designed to allow adjudication of private wrongs 481

482

David D. Fox

so that a party injured by the actions or omissions of another may be compensated for damages suffered” (Melton, Petrilla, Poythress, & Slobogin, 1987, p. 277). Thus, a tort is not the same thing as a crime because it does not necessarily involve evil intent and is not a breach of contract. Determination of liability and damages is performed in a judicial proceeding and is developed through the courts and based on both statute and legal precedent. Personal injury cases are concerned with intentional or negligent conduct that causes harm to an individual and for which another party is liable. As such, the civil legal process determines whether an injury occurred, the extent of damages, and the party liable for compensation. There are numerous legal principles involved in personal injury cases that are best detailed in legal texts. Some general principles are worth noting, however. In order to constitute a tort: (a) there must be the existence of a duty owed to the plaintiff by the defendant; (b) there was a violation of that duty; (c) the injury was proximately caused by that violation; and (d) the injury is one that is recognized as compensable (Melton, Petrilla, Poythress, & Slobogin, 1997). Determination of whether a duty exists and whether a violation of that duty occurred is usually beyond the determination of the psychologist-expert (with the possible exception of psychologist malpractice cases). Psychologists-experts play the role of offering opinions regarding the presence of any psychological injury, its cause, prognosis, and need for treatment. Compensation in personal injury cases is typically in the form of money for damages suffered by the plaintiff. There are different kinds of damages. Special damages are those which actually were caused by the injury and include medical and hospital bills, loss of wages, et cetera. The second basic area of damages is general damages, which are subjective both in nature and determination of value of damages. These include pain and suffering, future problems and the crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, loss of companionship, and humiliation from scars, among many others. The third major form of damage is exemplary (or punitive) damages, which combines punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton, or grossly reckless way in causing the special and general damages to the plaintiff (Law.com). In most personal injury tort cases the burden of proof falls on plaintiffs to prove their case with the preponderance of evidence. That is, the plaintiff must prove separately each alleged fact to be more probable than not. This means that defendants are not responsible for proving their side of the case (lack of liability, lack of injury, lack of damages, etc.).

Mental Injuries In recent years jurisdictions have increasingly recognized that emotional harm or emotional distress may constitute a tort and be deserving of compensation, although some require the presence of physical injury before recovery for mental injury is allowed (Melton et al., 1997). There is an increasing trend of compensating for purely psychic injuries, however. For example, sexual harassment might produce a psychic

Personal Injury Evaluations

483

injury without physical injury. Some jurisdictions as a practical matter do not provide compensation for emotional distress, regardless of harm. Intentional Infliction of Emotional Distress For more than 50 years there has been liability attached where “the wrongdoer’s extreme and outrageous conduct, intended to inflict severe emotional distress in another, in fact proximately causes that result” (Melton et al., 1997, p. 372). Most states recognize this standard. In order to prove intentionality the defendant must have acted intentionally or recklessly, the conduct was extreme and outrageous, and the conduct caused severe emotional distress (Melton et al., 1997). For an act to be intentional or reckless the defendant knew or should have known that emotional distress would occur in the plaintiff. Although the reasonable-person standard applies (Would a reasonable person be expected to react with emotional distress?), an individual’s particular sensitivity or susceptibility to emotional distress is also taken into account. For example, a psychologist who engages in behavior toward an emotionally vulnerable patient could be considered to have intentionally inflicted emotional distress in that person, even though it might not affect the average person in that way. Another prong of the standard is whether the conduct was such that it would greatly offend the community sense of decency. Therefore, abusive language or gestures could give rise to liability. This might include certain epithets, especially racial or religious. The circumstances are also important for determining liability. An employer may have a special obligation to not use abusive language, whereas the same language when used on the street might not be considered extreme or outrageous. It is noteworthy that the emotional distress must be “severe.” In some jurisdictions this is defined as an emotional distress that would occur such that no reasonable person would be expected to endure it. “The intensity and duration of the distress are factors to be considered in determining its severity” (Melton et al., 1997, p. 372). The distress may include fright, grief, humiliation, embarrassment, anger, or even disappointment but it must be demonstrated by substantial evidence and it must be severe. Negligent Infliction of Emotional Distress Typically, negligence is harder to prove because there must be an established duty on the part of the defendant to protect the plaintiff from injury, and there was a violation of that duty that was the proximate cause of a demonstrable injury. The most common example of these cases is bystander recovery and related product liability cases (Melton et al., 1997). In both such cases the jurisdiction will determine the characteristics of the relationship of the bystander to the victim and whether objective symptomatology is needed. In order to qualify as an injured bystander the plaintiff must establish that they have standing (the right to file a lawsuit or file a petition under the circumstances) in the case. This means that their relationship to the actual victim, such as a family member, is recognized under the law as being an additional potential victim. Not all bystanders are included.

484

David D. Fox

Participants in the Personal Injury Process It is also important to understand the various roles of parties in the personal injury litigation process. In the most typical case involving psychologists, an individual believes he or she has suffered psychological, and possibly physical, damage as a result of an event for which someone else is responsible. In addition to physical injuries, addressed by other experts, the injured party may claim that he or she suffered severe mental distress or a mental disorder requiring treatment as a consequence of the accident. The injured party is also claiming that someone else is at fault (liable). In most situations the injured party hires an attorney who files a lawsuit against those believed responsible. Each lawsuit involves a number of different players of different roles. Usually there are lawyers who represent the person filing the suit (plaintiff ) and the person or company being sued (defendant). In a typical forensic psychological practice it is the lawyer for one of these parties that hires the psychologist to serve as an expert. As discussed later in this chapter, it is important to remember that the plaintiff and defendant attorneys represent their client and not the psychologist. The psychologist’s opinion is meant to assist the attorney in proving the case. There are other significant roles as well. The Trier of Fact (TOF) is the person or persons empowered by the law to determine whether the criteria for a tort have been met. Typically, this is a jury but in some cases this can be a judge (bench trial). It is through witnesses that evidence is provided to the TOF to enable them to reach a judgment. There are generally two kinds of witnesses: (1) percipient or eyewitnesses who testify only as to facts observed or perceived by them and (2) experts who, based on their education, training, and experience, can offer opinions as to essential facts of the case (for example, the presence and severity of a mental disorder, likely causation, etc.) that is outside the expertise of the TOF. To assist the TOF in deciding whether an injury took place and the extent of damages deserving of compensation, experts are sometimes used. It is important to recognize that the term expert is different under the law from what psychologists usually mean when using this term. Under the law an expert can render opinions that assist the TOF. The use of the term in the law is different from how a mental health professional might use it. For example, B.F. Skinner might be thought of as an expert in behaviorism by psychologists but under the law virtually any psychologist could be qualified as a behavioral expert because psychologists have specialized training in understanding behavioral principles that is greater than the average person on the jury. Qualifying as an expert is an important process and governed by both statute and precedent. It also varies by jurisdiction (state versus federal, for example). Although details are left to legal textbooks, the psychologist-expert should be familiar with terms commonly used in describing how one qualifies as an expert in court, referred to as admissibility. An expert and her testimony are admitted to testify in a two-step process. The first concerns whether she has the necessary “education, training, and experience” to give opinions as to the evidence (percipient witnesses cannot do this). Her qualifications must be established and this is usually performed at the outset of testimony. Once a psychologist has been admitted as an expert, some or all of her testimony must also be admitted as reliable evidence. This process is often done by reference to precedent cases. One of the most long-standing of these

Personal Injury Evaluations

485

is the “Frye” standard (Frye v. United States, 1923). This standard states: “Only those scientific methods and concepts that have gained general acceptance in a particular field are admissible” (Larrabee, 2005). In other words, experimental procedures not accepted by the general psychological community would not be allowed. In 1993 another standard was established by Daubert v. Merrell Dow (1993). This standard, often referred to as the Daubert rule, supplemented the Frye standard. To be admissible, scientific testimony must meet two very broad criteria: it must be (a) scientifically valid and (b) relevant to the case at hand. The Supreme Court justices provided some guidelines for admissibility: 1. 2. 3. 4. 5.

Is the theory on which the opinion is based falsifiable or testable? Has the methodology been subjected to peer review? Is there an acceptable error rate? Is there a technical manual or other guide to control use of the instrument? Is there general acceptance of the theory and procedures? (the Frye standard)

The Daubert principal was expanded further under the General Electric v. Joiner (1997) ruling, which applied the Daubert principles to the expert’s reasoning and not just procedures or technology. More recently, Kumho Tire v. Carmichael (1999) extended Daubert standards to cover all forms of expertise, not just professional. These different standards are determined by statute and jurisdiction and applied by the judge. For example, the Daubert criteria are integrated into the Federal Rules of Evidence (FRE), which apply to cases in federal courts. It is up to the judge as the gatekeeper of the trial to determine whether an expert’s opinion and methodology meet the appropriate criteria. Most personal injury cases are covered by state law and some states follow the Frye rule, whereas others follow different criteria. It is often helpful for the psychologist, particularly if basing his or her opinion on a novel theory or technology, to appreciate what standards of admissibility are present in any particular case through consultation with the retaining attorney. Determination of whether an expert or any particular technology is admissible is sometimes decided through a “trial within a trial.” Without the jury present, the judge considers testimony as to whether a particular expert or procedures satisfy the appropriate admissibility standard. Both the plaintiff and the defense may present experts on this subject alone—for example, describing whether a particular test is commonly used in the field of psychology. The judge then rules on what areas the expert can offer an opinion. A number of authors have expressed the opinion that much of the theory, diagnoses, and methodologies of psychology and neuropsychology might not meet the stringent criteria of the Daubert standard. To date, these fears are unrealized and generally speaking most generally accepted psychological theory and procedures are admitted. It is important to note, however, that even when testimony is admitted it may be given less weight by the TOF. Within a forensic context, attorneys sometimes may retain the services of a psychologist to serve as a consultant on their case. Often, this involves reviewing records or the psychological literature relevant to the case, be it for plaintiff or defense. In such instances there is a greater degree of confidentiality because in most cases such consultants do not have to be revealed to the opposing attorneys (as any communication

486

David D. Fox

is covered under “attorney–client work product” privilege). Just as with evaluating a patient, the psychologists are bound by confidentiality and privilege because the attorney is their client. This is in contrast to a psychologist being hired as a testifying expert. In such cases an attorney might hire a psychologist with the expressed purpose of testifying through declaration (a written statement submitted to a court “under penalty of perjury” that the contents are true), affidavit, deposition, or at trial. Such experts are specifically delineated to the attorneys representing the other side and the expert’s opinions are shared through the discovery process. In that circumstance there is no privilege as it is expected that the psychologist will testify in open court (public record). There is limited confidentiality, and all communication exchanged between the psychologist and the retaining attorney may be revealed in case-related proceedings. Common personal injury cases involving psychologists include emotional distress due to harassment, damage to property, or physical injury. Neuropsychologists often serve as experts when the claim includes brain damage caused by accident, exposure to toxic chemicals, carbon monoxide poisoning, or other potential insults to the brain. Increasingly, psychologists serve as experts in professional malpractice cases. With nonmental health practitioners the psychologist-expert may testify as to the presence and severity of injury. In mental health malpractice the expert may also offer opinion as to whether the standard of care was breached by the defendant. The potential areas of contribution by psychologist-experts are quite varied. Obviously, clinical psychologists have training in the diagnosis and treatment of mental disorders and hence this represents the most common role for them to play in a personal injury case. However, some psychologists have training in other areas of expertise that can be of use to the court. One of the most prominent of these is neuropsychology. This particular specialty has special relevance to the court because many lawsuits involve brain damage claims. It is one of the most rapidly expanding areas of forensic psychological practice (Larrabee, 2005). In such cases neuropsychologists are concerned with not only the emotional condition of the plaintiff but their cognitive skills, potential limitations in daily functioning, and need for rehabilitation. In most jurisdictions, neuropsychologists can testify as to the likelihood of brain damage, an area typically addressed by medical specialties. Interestingly, although neuropsychologists often diagnose brain damage in their clinical practices some legal jurisdictions have limited neuropsychologists’ ability to make such a diagnosis in personal injury cases. Another area of contribution is elucidating the interaction of a plaintiff’s background with the traumatic event that produces their current condition. The TOF is often concerned with the plaintiff’s condition prior to the event in question because it might affect the degree of liability for the defendant and the amount of compensation. Psychologists receive particular training in assessing the etiology of disorders, which is ideal for such determinations. Clinical psychologists also address to what extent psychological symptoms interfere with the performance of major life activities, such as work. Similarly, prognosis of the disorder and need for treatment are well within the realm of professional clinical psychology. In essence, any area in which a clinical psychologist is allowed to practice can provide the basis for opinion in a personal injury case.

Personal Injury Evaluations

487

Clinical Versus Personal Injury Practice Whereas the civil legal system may rely upon psychologists to utilize their expertise in providing evidence, it is necessary to recognize the differences between the demands of clinical psychology and those of forensic psychology in personal injury cases. At its most basic, in the forensic context the patient is not the client. The patient is actually a plaintiff, and the client is the attorney retaining the psychologist. Even if the attorney represents the patient the usual responsibilities identified in the patientpsychologist relationship are altered. The following represents some of the significant conflicts to be resolved when a clinician enters forensic practice.

Role Differences Among the most fundamental distinctions between the clinical and the forensic role is the change in the relationship between the patient and the psychologist. This difference affects the mutual expectations of both parties, the techniques utilized by the psychologist and the case formulation. There is a profound difference in how the patient/plaintiff approaches the psychologist. In the clinical context, patients expect emotional support, unconditional positive regard and complete confidentiality in support of their effort to resolve their emotional difficulties. Likewise, psychologists assume that the patient wants symptom relief, will willingly describe their psychological functioning (even if it is unflattering), and more or less participate in treatment. Few or none of these assumptions are present in the forensic context. Rather than seeking relief from symptoms, the plaintiff is seeking to demonstrate his psychological injury (“belief instead of relief”). The circumstance of the psychological-legal evaluation, whether it is done on behalf of the plaintiff or the defense, places the patient/plaintiff in a position in which he has to demonstrate symptoms. There is an inherent pressure to accentuate dysfunction and to downplay coping mechanisms that might undermine his claim. Nor can it be assumed that the patient/plaintiff will willingly volunteer complete information about himself when undergoing a forensic evaluation. In contrast to plaintiffs, mental health patients are less concerned about causation than about obtaining relief from their symptoms or at least obtaining understanding and support. In the personal injury context the patient/plaintiff is specifically blaming a particular incident and often will try to persuade the psychologist of the validity of that claim. To complicate matters further, the patient/plaintiff often distinguishes between experts hired by their attorney or the defense. If the former, plaintiffs will likely anticipate the expert “taking their side” on the injury while for the latter they may presume that the expert will not believe them. The forensic psychologist does not have the intention of helping the patient and does not provide treatment. Indeed, the client in psychological-legal cases is the attorney who hired them for their objective opinion. Psychological help, if obtained, is outside of the forensic context. It is generally recognized that there is an inherent ethical conflict between the role of a clinician and that of a forensic evaluator (Greenberg & Schuman, 1997). Similarly, confidentiality is extremely limited. In fact,

488

David D. Fox

the whole purpose of a forensic examination is to share information gathered from the patient with the lawyers and possibly in open court. In a similar vein, to avoid compromising objectivity, the forensic psychologist should refrain from providing advice or even evaluative comments during the forensic process. In the forensic context the kinds of cases involving psychologists cover a wide range of psychological issues. Typical among these is a purely psychological symptomatology to a given event or pattern of events. For example, an individual may believe that his or her current depression is the result of sexual harassment. When such people are seen in the clinical context, the psychologist often provides initial emotional support for any symptoms that they have, with gradual emphasis on coping strategies as treatment continues. In the psychological-legal context, with treatment not being provided by the forensic psychologist, there is a much stronger emphasis on understanding the patient/plaintiff through a “snapshot” of the psychological condition. In some circumstances individuals are claiming damage to their bodies as well—for example, from a motor vehicle accident. The psychological symptoms may be the result of chronic pain or disability caused by these injuries. Some plaintiffs are claiming injury to their brain in an accident, chemical exposure, or other event that could produce not only changes in emotional functioning but cognitive deficits as well. In all of these cases, the skills that psychologists developed in the therapeutic or diagnostic context are not totally applicable to the psychologicallegal circumstance. Although the psychologist-expert’s client in a personal-injury process is the attorney it does not follow that the psychologist should take on the role of an advocate. In fact, it is essential to recognize that it is not the expert’s responsibility to produce a favorable outcome for their client, the attorney. Instead, the ultimate client is the truth represented by the justice system, which the expert serves by providing honest and objective unbiased opinions. The responsibility lies with the attorney to utilize this information in a way that is effective for his or her case.

Differences in the Evaluation and the Case Formulation Process Much of the effort in the initial portion of patient contact is toward establishing rapport and opening avenues of communication. This is rarely available in the forensic evaluation context. Typically, personal injury evaluations are performed in one or occasionally two sessions, a fact which limits rapport between the psychologist and the patient/plaintiff. Lack of rapport can then adversely influence data collection. Further, as there is no doctor–patient relationship with the plaintiff, they may not have fully come to trust the psychologist to be fair or helpful to them, even if the psychologist has been hired by the their attorney. In contrast to a help-seeking situation for which psychologists are well-trained, the psychological-legal circumstance can alter the interpretation of patient behavior. In a clinical evaluation a psychologist might interpret guardedness, distortion of historical data, and interpersonal discomfort as an indication of the underlying psychological condition. This might include reality distortion due to a thought disorder

Personal Injury Evaluations

489

or memory impairment from neuropathology. In a forensic context, in contrast, such behavior is more likely to be situationally determined, possibly as part of a general pattern of misrepresentation of symptoms. Similarly, magnification of symptoms is typically interpreted clinically to be the result of psychological processes, often at an unconscious level. In the psychological-legal circumstance however such behavior may represent a plaintiff’s intention to present themselves and their symptoms in a specific light in order to influence the psychologist’s opinions. In the personal injury examination, observations take on added meaning. For example, the promptness with which a plaintiff arrives at the appointment often reflects the level of cooperation. In a clinical setting, showing up late might suggest ambivalence about engaging in treatment but in a forensic interview late arrival may indicate significant resistance to the process that could compromise conclusions. There is another important difference between clinical evaluations and those conducted in a psychological-legal context. When a psychologist performs a clinical evaluation and reaches a diagnostic conclusion it is sometimes considered permissible to err on the side of overdiagnosis. That is, it is considered less harmful to diagnose and treat equivocal conditions than to fail to detect their presence. However, in the psychological-legal arena such overdiagnosis can lead to inaccurate conclusions regarding the presence of injury, extent of damage, and need for treatment. Clinically, psychologists are willing to make psychological diagnoses when there is significant but possibly not preponderant evidence present. On the other hand, the law requires that opinions expressed by experts to be more probable than not (more than 50%). Psychologists rarely conceptualize their conclusions and diagnoses in terms of specific probability. If there is a risk of a severe but undiagnosed condition, such as underlying thought disorder, it is usually considered clinically appropriate to raise this condition as a possible diagnosis. In personal injury matters, however, speculation about low-probability events is discouraged as the TOF may find such statements misleading as to the actual probability of such a condition being present. The law specifically excludes speculation by witnesses. If it does not meet the “more likely than not” standard it should not be offered in testimony. In most clinical circumstances the evaluation takes place as an essential component of treatment. Typically, the purpose of the clinical evaluation is to detect treatment-relevant characteristics with emphasis on recommendations and determination of prognosis. For personal injury cases, such considerations are of lesser importance. A general estimate of the future course of an individual’s psychological condition is often requested of the psychologist-expert, although details are not required. Further, in the clinical situation it is assumed that modifications in treatment regimens will be made, depending upon the course of the condition. In the psychological-legal circumstances it is not possible to factor in future contingencies in a comprehensive fashion. Only general statements of prognosis are possible. Despite all of these differences it is essential that forensic psychologists adhere to their professional training and experience when acting in a forensic role. Indeed, significant deviation from good clinical practice not only would compromise the validity of any conclusions reached but potentially could result in the exclusion of that psychologist-expert’s opinion from the case. These differences and others illustrate some of the hurdles for a clinician when practicing as a forensic psychologist.

490

David D. Fox

For additional discussion of the conflicts between the clinical and forensic roles see Larrabee (2005) and Greiffenstein (in press).

Symptom Misrepresentation Unlike clinical evaluations, there is a much higher risk of intentional symptom misrepresentation in the forensic setting. This makes common sense and is supported by empirical data (e.g., Rogers, 1998; Gervais et al., 2001; Larrabee, 2000). It is important to note that symptom misrepresentation can occur in a number of different ways and with different purposes. For example, subjective distress and functional limitations due to psychological symptoms (e.g., disability) might be exaggerated. When such exaggeration is significant and done intentionally for external gain, such as money in a personal injury case, it is referred to as malingering. Some clinicians, and lay people as well, react to the term malingering as equivalent to fraud. This is a misconception. According to the DSM-IV-TR (APA, 2000) malingering occurs whenever there is “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives” (p. 739). Fraud is a legal term sometimes defined as “the intentional use of deceit, a trick, or some dishonest means to deprive another of his/her/its money, property or a legal right” (Law.com). Fraud implies the plaintiff has an awareness of the falsity of the claim and has made a strategic decision to obtain something they are not entitled to. Although this can certainly occur in some personal injury cases, much more common are scenarios in which malingering but not fraud occurs. For example, an individual may feel genuinely injured and entitled to large compensation but resorts to symptom exaggeration to demonstrate their injuries. In other cases, an individual may seek compensation through symptom exaggeration as a punishment to the defendant rather than as a reward to themselves. In yet other cases, the plaintiff seeks to avoid having to remain employed or to avoid family responsibilities and a lawsuit is merely a vehicle for obtaining such ends. Occasionally, a lawsuit is part of a larger attempt to retain ready access to narcotic drugs. All of these cases might constitute malingering without necessarily being fraudulent. It is also important to note that there are psychological conditions that can produce exaggerated symptom presentation. Prominent among these are factitious disorder and somatoform disorder. In the former, as indicated in the DSM-IV-TR, the exaggeration is intentional but the purpose is to play “the sick role” (APA, 2000, p. 517). As the DSM notes, however, external incentives for the behavior have to be absent to diagnose this condition. Therefore, such a diagnosis is virtually impossible in the personal injury context. In somatoform disorder, physical complaints (or arguably cognitive symptoms) are made without sufficient medical explanation. By definition, the symptoms are not produced intentionally even if the external gains are present. As is readily evident, the personal injury context might easily become the stage on which individuals with somatoform disorder play out their psychological conflicts. Measuring intentionality and the role of external incentives to differentiate malingering from somatoform disorder is still largely dependent upon clinical judgment. The presence of personality disorders further complicates this issue (Grillo, Brown, Hilsabeck, Price, & Lees-Haley, 1994).

Personal Injury Evaluations

491

Research has found that in the clinical situation malingering occurs fairly rarely, probably less than 10% of the time (e.g., Rogers, 1998). However, in psychological/ neuropsychological-legal cases, malingering is estimated to occur in 25% to 45% of the cases (Mittenberg, Patton, & Canyock, 2002). Consequently, in the psychologicallegal context much more serious consideration of intentional exaggeration of symptoms for external gain must be considered. Although generally unknown, the rate of somatoform disorders in personal injury cases is also likely to be elevated. Although the general prevalence is estimated to be less than 2% by the DSM-IV, the rate among medical patients is as high as 20% or higher (Fink, Steen, & Sondergaard, 2005; de Waal, Arnold, & Eekhof, 2004). Those individuals filing a lawsuit are a self-selected sample. By definition, absent fraudulent intention, plaintiffs are individuals who are seeking compensation for perceived injuries. In many cases they are acutely attuned to minor disruptions in their emotional equilibrium and are prone to blaming others for their problems. Poor coping skills and limited insight are characteristic of several disorders commonly found in litigants (Greiffenstein, 2002; Greiffenstein & Baker, 2001). It has been found that a high percentage of people making psychological and psychophysiological claims in fact have somatoform or personality disorders (Layne, Miller, & Schmucker, 1997). They often have a history of a wide variety of physical complaints with little organic explanation or have other maladaptive behaviors. It is important to note that malingering per se does not rule out a genuine psychological disorder, but it may prevent an accurate determination of a disorder’s presence and severity. Another confounding variable is environmental contamination of the plaintiff’s understanding of their condition. This might come from the influence of attorneys, friends, relatives and readily available information in books, the popular press, and the Internet. Intentional or not, such corruption can invalidate a psychologist’s assessment procedures and distort the patient/plaintiff’s clinical presentation. The Evaluation Process Psychologists are trained to use a number of techniques to collect relevant information about their patients to form their opinions. As with any clinical evaluation, the forensic psychological assessment must be comprehensive. Because the personal injury psychological evaluation is conducted on a one-time basis, information gathering must be careful, detailed, and comprehensive. The source of the information regarding a patient’s condition is similar to a clinical evaluation with some notable exceptions. It is also necessary to understand the nature of the precipitating event claimed in the lawsuit. This will require not only detailed questioning of the plaintiff but careful review of pertinent records. Merely observing that an individual suffers from a mental disorder he or she did not have prior to the event is insufficient to conclude that there is a causative relationship. Record Review In many clinical circumstances there are few if any records available prior to the initial evaluation session. When a forensic evaluation takes place in one or two sessions it is essential that records be reviewed, preferably prior to the evaluation itself.

492

David D. Fox

There are a number of reasons that record review plays a crucial role in any personal injury claim. The essence of a personal injury lawsuit is that an event or series of events caused deterioration in the plaintiff’s psychological condition. Thus, it is crucial to understand the premorbid condition. This is often accomplished through review of pertinent records such as psychotherapy records, medical records, employment information, and the like. The traumatic events are often grossly distorted by the patient/plaintiff (intentionally or not). For example, it is commonly found in individuals claiming cognitive difficulties following a motor vehicle accident that the described length of unconsciousness following the accident increases each time they are asked. I have often seen cases where there is little or no loss of consciousness, as verified by individuals at the scene and patients’ own self-description, yet in subsequent visits to doctors, the patients describes their unconsciousness in longer and longer terms. Within 2 or 3 years after the accident such unconsciousness may be described as lasting 10 or 20 min. In some cases this represents intentional distortion but more often this appears to reflect the natural psychological phenomena of cognitive dissonance resolution. Record review allows for a more objective description of the events and the immediate reaction of the patient. The record review, in conjunction with interview data, can help establish a detailed timeline regarding the emergence and progression of symptoms. This is particularly important in establishing causation. The effects of concurrent stressors, such as financial problems, family discord, or work problems can be differentiated from those of the event in question. It is often useful to review medical records because it is common for individuals to first report psychological symptoms to their primary care physician. As an example, it is often observed by patients in personal injury cases that they claim significant changes in weight. Examination of their medical records often reveals their self-described weight changes occurred before the event in question or are of significantly different magnitude (or could support the patient’s self-report) Again, this may not represent intentional distortion so much as fallible memory and an attempt by the patient to present a coherent symptom picture. The Role of Self-Report The most noticeable difference between clinical and forensic evaluation data collection is the role of self-report by the patient. The typical clinical patient will volunteer important information regarding their symptoms and be straightforward about answering relevant questions. Consequently, clinical psychologists rely heavily on the patient’s description of their symptoms. In the forensic circumstance, on the other hand, plaintiffs will focus on the symptoms they believe are the most germane to their claim. There is a natural tendency to enhance those aspects that support their claim while downplaying those factors that might jeopardize their lawsuit. This is not necessarily a matter of malingering or ill intent but merely reflects a plaintiff’s cognizance of the circumstance of their evaluation. There is ample evidence in the literature that self-report, even in clinical situations, is often at variance from objective measures. This effect is magnified in forensic evaluations. For example, memory complaints have essentially zero correlation with objective measures of memory ability in compensation cases (Dodrill, 1997; P. Green, personal communication.)

Personal Injury Evaluations

493

Although potentially providing valuable information and commonly used in clinical circumstances, self-report measures are particularly vulnerable to patient bias in reporting. “Because the test respondent is providing the test data, an opportunity exists to consciously or unconsciously distort the responses given” (Maruish, 1999, p. 47). Such distortions (“impression management”) are particularly problematic when there is obvious personal gain associated with the self-report. In addition, psychometric limitations may reduce the validity of such procedures. Self-report is an important component in determining the previous level of functioning. There is a natural tendency for the patient/plaintiff to downplay premorbid symptoms or functional limitations. Indeed, there is empirical evidence that people generally overestimate their accomplishments and the quality of their premorbid functioning (Mittenberg, DiGiulio, Perrin, & Bass, 1992). Examination of gradepoint average in high school, for example, has shown that the average person overestimates their grade-point average, and this effect is enhanced in personal injury contexts (Greiffenstein, Baker, & Johnson-Greene, 2002).

Interview Just as in a clinical evaluation, a forensic examination requires a comprehensive and careful interview of the patient/plaintiff. Here, psychologists use their expertise in understanding an individual’s psychological condition. The interview permits the gathering of historical information and making of pertinent observations relevant to their condition. In addition to the usual behavioral observations, it is often important to observe emotional and cognitive behavior of the patient/plaintiff during the interview. How emotional is the person when describing the alleged traumatic event? Strong emotions may be elicited by factors that are downplayed by the plaintiff, while the alleged trauma is met with equanimity. Likewise, the ability to recover one’s composure is often a sign of coping skills. The ability to rapidly recover from an emotional outburst often reflects isolated emotional upset rather than persisting dysphoria. The interview is also the primary procedure for understanding the patient’s perception of their symptoms. Thus, it is important to obtain a comprehensive list of all relevant symptoms that the patient/plaintiff believes are related to the event(s) in question. This may include physical as well as psychological symptoms. It is often helpful to determine ratings for each current symptom and at previous points in time. This allows the psychologist to compare objective signs of psychological upset with self-described symptoms. Understanding the course of a condition is essential to understanding the diagnosis and potential etiologies. Similarly, it is important for the psychologist to elicit from the plaintiff the manner in which the symptoms interfere with the ability to function. Inherent in virtually all personal injury psychological claims is the assertion that the consequent symptoms have an adverse effect on the plaintiff’s ability to perform essential functions—for example, on the job or within the family. The interview is also crucial in gathering historical information about the patient/ plaintiff. The following areas should receive careful and at times detailed inquiry by the psychologist: early developmental history, educational background, social history,

494

David D. Fox

marital/sexual history, and occupational history. Not surprisingly, understanding the presence of current or previous chemical abuse is crucial. Unfortunately, unlike the clinical situation, the forensic examiner cannot assume that the patient/plaintiff has been totally candid in describing such chemical use. Record review can be particularly useful with this issue. It is often helpful to get a description of a typical day in the life of the patient/plaintiff. Concurrent stressors should be carefully evaluated, particularly those involving the health of loved ones, financial stresses, or difficulties in adjustment within the family. Obtaining a careful history is essential for developing a timeline for the development of symptoms. Even the best intentioned patient/ plaintiff will sometimes restructure the emergence and the validity of symptoms to more fully justify a claim. Comparison of self-reported relevant historical information obtained in the interview with objective sources obtained through record review is helpful in understanding the plaintiff’s candidness, self-awareness, and memory. Observations are also crucial because they serve as a sample of behavior produced by the patient. It is crucial to recognize the difference between self-reported symptoms (complaints) as compared to observations that are objective. A plaintiff who claims that he or she is completely overwhelmed and is largely dysfunctional in life because of disorientation, impaired memory and decompensated defenses, but who nevertheless is able to drive a long-distance to an appointment and maintain attention and memory throughout a long and stressful evaluation is showing an essential inconsistency between subjective complaints and objective findings. On the other hand, strong emotionality that disrupts the interview may indicate the sort of functional limitation the plaintiff experiences elsewhere in life.

Collateral Information It is common, especially for patients with serious psychological disorders, for family members or other collaterals to provide information about the patient. In the psychological-legal context such collaterals are often unavailable, and it would be inappropriate in some circumstances to approach them with questions. Further, it cannot be assumed that the collaterals are providing valid information regarding the patient’s psychological symptoms and capabilities. For example, if malingering is taking place, the collateral would merely reinforce the misrepresentation of symptoms. Even if there is no conscious distortion present, within the context of a lawsuit a collateral informant is more likely to side with the plaintiff’s version than to disagree, realizing that such disagreement might jeopardize the lawsuit or their relationship.

Psychological Testing For both financial and time limitations psychological testing is often not used in clinical situations. In part this occurs because it is assumed that there will be multiple sessions to gather information, a luxury not afforded to the forensic examination. As noted above, the forensic examination also has demand characteristics that alter an individual’s clinical presentation, such that objective verification of symptoms is

Personal Injury Evaluations

495

essential. Psychological testing in its many forms can provide objective verification of complaints and assist in reaching conclusions regarding causation. Indeed, in the psychological-legal context, the use of some form of psychological testing is considered the standard of practice among psychologists. The following is a brief discussion of the legal status of some of the more commonly used psychological tests. As described above, tests, like clinicians, must meet certain standards for admissibility as evidence. Indeed, many expert opinions are limited or even excluded when they have been based on test procedures with inadequate scientific validation. In addition to test validity, the psychologist-expert must demonstrate competence with each procedure utilized, which may require additional training.

Questionnaires and Checklists Sometimes straightforward checklists or questionnaires are utilized in either clinical or forensic evaluations. Although these can certainly save time and help to guide subsequent interview questions, it is essential that the psychologist realize that such questionnaires do not provide objective verification of symptoms. They merely represent a paper-and-pencil version of self-report, sometimes without norming or techniques for detecting response bias. Self-reported symptoms are by their very nature subject to distortion by the patient/plaintiff. This can be intentional, due to personality style, long-standing mental illness, or normal reaction to cognitive dissonance. Wellaccepted procedures often used in the clinical situation, such as the Beck inventories or the Symptom Checklist-90 (SCL-90), have limited usefulness in the forensic context due to their susceptibility to distortion for conscious or unconscious reasons.

Fixed Format Procedures (Objective Tests) Increasingly popular among clinicians, procedures with limited response possibilities, such as true–false, are often preferred in personal injury cases. They can be objectively scored and often have received stronger empirical support. Surveys of test usage among forensic psychologists reveal that the most commonly used procedure is the MMPI-2 (Lees-Haley, Smith, Williams, & Dunn, 1996; Lally 2003). Nevertheless, use of poorly validated scales even on the MMPI-2 can and often is challenged in court (Lees-Haley, Iverson, Lange, Fox, & Allen, 2002). Pope, Butcher, and Seelen (2006) delineate some of the advantages of using the MMPI in its various formats in court and offer some general guidelines for the use of the MMPI: (a) the original MMPI is now obsolete and it would be forensically inappropriate to use it; (b) whenever possible, utilize computer scoring (such as by Pearson Assessments) which minimizes scoring errors and allows for the scoring of a large number of scales and indexes; (c) consider using computer-based interpretations as they minimize clinical or impressionistic interpretations that might be interpreted as biased; and (d) administer the test under direct supervision; allowing the plaintiff to take the test home or otherwise permit contamination could invalidate the results and compromise the validity of the psychologist’s opinion. Pope et al (2006) is a valuable resource

496

David D. Fox

when using the MMPI in personal injury cases. The authors describe (p. 419) a number of common mistakes in using psychological testing in forensic cases. In general, they apply to good clinical practice as well. As with other psychological procedures, the psychologist is responsible for the ethical use of any test, its appropriateness for any particular individual, and the accuracy of scoring/interpretation regardless of any utilization of computerized services (APA, 2002). Whatever procedure is utilized it must have established literature demonstrating its reliability and validity. Preferably, each procedure would also have a measure of symptom distortion, particularly exaggeration of symptoms. It is in this fashion that the MMPI-2 has established itself as the leader in usage by personal injury psychologists. This test has a number of well-validated scales for measuring symptom distortion. Not only are the usual measures of symptom infrequency present (such as the F and the FB scales) but a specific scale measuring symptom exaggeration in personal injury cases has been developed. The Fake Bad Scale, developed by Lees-Haley, has received extensive validation as a measure of symptom exaggeration (Griffeinstein, Fox, & Lees-Haley, 2007).

Measures of Symptom Distortion (Malingering) Because there is such a high risk for symptom exaggeration it is important for the psychologist-expert to measure potential feigning or exaggeration of such deficits. In most psychological personal injury cases there is the allegation of cognitive dysfunction due to either psychological or neuropsychological factors. Indeed, concentration and memory problems are among the most common complaints of people with psychological conditions, but they require objective measurement. Yet, cognitive tests can be distorted by poor effort. Some authors have noted that neuropsychological test data are “not a reliable indicator of malingering performance, supporting the notion that specialized malingering tests are a critically necessary component to clinical classification of malingering” (van Gorp et al., 1999). In fact, effort has a greater effect on neuropsychological tests than does brain damage (Green, Rohling, Lees-Haley, & Allen, 2001). The field of neuropsychology has provided a number of excellent instruments that can detect such misrepresentation. So-called effort or “symptom validity” (SVT) tests have been designed on the principal that some tasks appear to be much more difficult than they are. Procedures like the Rey 15 Item Test seemingly measure memory but in fact are so easily performed even by those with memory problems that a poor performance on this test is considered indicative of either poor effort or an attempt to appear impaired. Unfortunately, such procedures potentially could be sensitive to actual memory impairment. To address this problem, other procedures have been designed taking advantage of the binomial theorem and utilizing forced choice methodology. In this paradigm, a cognitive task is presented in which there is one of two possible answers. If a patient/plaintiff successfully answers less than 50% of the items it can be reasonably inferred that he or she knew the correct answer and intentionally answered incorrectly. This would be an indication of an effort to feign a cognitive deficit. A number of procedures have been developed to date but the Word Memory Test (WMT), the Test of Memory Malingering, and the Computerized

Personal Injury Evaluations

497

Assessment of Response Bias have received particularly strong empirical support. The WMT has been found admissible in more than one United States court (P. Green, personal communication, 2006). Griffeinstein (in press) has indicated that these procedures likely meet the Daubert criteria. For a recent discussion of malingering measures in neuropsychology, consult Larrabee (2005). Administration of psychological tests without adequate measurement of potential symptom misrepresentation is below the standard of practice in forensic psychology. The National Academy of Neuropsychology has issued a position paper describing the importance of validity testing (Bush et al., 2005).

Cognitive and Ability Tests Ability tests of various sorts, along with cognitive measures, are often important, even in cases when brain injury is not being claimed. The mechanism by which psychological symptoms can interfere with daily functioning is through interruption in cognitive processing. For example, depressed individuals often complain that difficulty concentrating and remembering represent their primary problems on the job. Anxiety can interfere with the ability to pay attention and to process information efficiently. Utilization of cognitive measures to document the presence or severity of such deficits, even when caused by solely psychiatric symptoms, is an important component to understanding the plaintiff’s personal injury psychological claim. Thus, the Wechsler Adult Intelligence Scale and the Wechsler Memory Scale are often utilized to demonstrate relevant cognitive strengths and weaknesses, even when no brain dysfunction is claimed. Surveys of neuropsychologists have described a number of procedures commonly used in forensic circumstances (Rabin, Barr, & Burton, 2005). Whatever testing procedures are used it is incumbent on the psychologist-expert to adequately and appropriately integrate the results with their clinical impression. Thoroughness and consistency in opinions are essential components in professional forensic inclusions. The psychologist-expert needs to recognize that other psychologistexperts will carefully and critically review their work to elicit information that does not support their opinions. Glossing over unsupportive data in the hopes that no one will notice is a formula for producing substandard work and possibly exclusion from trial testimony (not to mention jeopardizing a career in forensic psychology).

Projective Techniques As reported in various surveys (e.g., Lees-Haley, 1992) projective tests are sometimes used by forensic psychologists in personal injury cases. The Rorschach, Thematic Apperception Test, and projective drawings are apparently relied upon in reaching expert opinion. However, their scientific and legal status is much more dubious. Although clinicians may be able to integrate vague descriptive interpretations from projective tests, such nonspecific conclusions are of little utility in the psychologicallegal context. One of the greatest legal challenges to these procedures centers on the lack of established accuracy or error rate. Because projective tests were not designed

498

David D. Fox

to yield specific predictions of behavior, diagnosis, et cetera, it is virtually impossible for them to have an established error rate. Interpretation tends to be idiosyncratic to the clinician, even when using the Exner system for the Rorschach (Grove, Barden, & Garb, 2002). Because of these limitations, forensic psychologists are often uncomfortable basing their opinions on projective tests. Projective drawings have been excluded by a number of courts for lack of validity and, increasingly, forensic psychologists utilizing the Rorschach are finding its use successfully challenged in court (Ziskin & Faust, 1988). Reaching Conclusions Case integration allows for the incorporation of the varied data sources into a coherent clinical picture that addresses the requirements of the psychological-legal process. Here, factors such as premorbid functioning, additional stressors, altered presentation, and alternative explanations can be explored. Such integration allows for the examination of the internal inconsistencies in a plaintiff’s claim. Obvious inconsistencies would be the development of symptoms prior to the event, the lack of documentation for such symptoms in the medical record, and the presence of stressors with greater probable emotional impact (for example, the death of a child). It is important to note, however, that a certain degree of minor inconsistency in reporting of symptoms or the precise sequence of events does not indicate that the claim is invalid. Clinical judgment plays the central role. Psychologists can appreciate the complexities of human interaction, and it is their expertise that helps sort out relevant from irrelevant factors. The role of all the relevant factors needs to be delineated and explained to the TOF. Causation Issues Usually, the psychologist-expert is asked to determine whether a particular event was the proximate cause of the injury, as this assists the TOF in determining who is at fault. This presents one of the many areas in which clinical training does not prepare the typical psychologist for legal testimony. As clinicians, clinical skills are honed to facilitate treatment and diagnosis rather than making definitive statements regarding causation. The cause of a psychological condition is only relevant to the extent it affects treatment. Although the law may describe proximate cause in a number of ways, such as the most recent or prominent event, psychological science has rather clearly demonstrated that an individual’s current psychological condition is the product of biology, a lifetime of experiences, and other innumerable factors. Regardless of psychological theory, virtually all conceptualizations of human behavior emphasize that an individual’s current reaction is multiply determined. Therefore, assigning a particular disorder to a specific cause, such as an accident, is extremely difficult because of the different conceptualizations of causation. One of the greatest challenges facing the psychologist-expert is to reconcile the complex understanding of causation of a psychological condition with the law’s need to determine a proximate cause. To resolve this issue, sometimes the law utilizes metaphors. For example, the

Personal Injury Evaluations

499

proximate cause is sometimes referred to as “the straw that broke the camel’s back.” Alternatively, the metaphor of an eggshell is often invoked. In other words, even though fragile, an intact eggshell is entitled to continue as an egg and harming it could constitute a tort. Under the law, the most recent event is usually considered the most relevant, but the psychologist-expert might very well determine that preexisting characteristics or other stressors are also contributory. It is more scientifically valid and useful to the TOF to describe the various contributors to an individual’s current psychological condition. It is up to the TOF to determine if the contribution of the events in question satisfies the law’s definition for proximate cause. Many mental health professionals working in the psychological-legal system often fall prey to the logical fallacy post hoc, ergo propter hoc (because a condition follows an event therefore the event must have caused the condition). That is, coincidence in time is not sufficient to determine causation. It is not sufficient to indicate a possible cause when reaching an opinion in legal cases. Instead, there must be a psychologically reasonable causative relation between the putative cause and the condition itself that is more probable than not. It is standard practice in personal injury cases for the psychologist to carefully review the alleged causative event(s). Understanding the psychological, and perhaps neuropsychological, factors relevant in the alleged causation is essential in forming a psychological-legal opinion. It is equally important, however, to recognize that experts do not determine the objective truth regarding the causative events in question. No matter how credible the patients/plaintiffs might be in their description of the claimed precipitating events(s), the expert usually can offer little probative value (evidence which is sufficiently useful to prove something important in a trial) regarding the authenticity of this description. However, in some extreme cases, the plaintiff’s description is so illogical or obviously the product of psychological disturbance that its accuracy may be questioned. Ultimately, determination of what actually occurred rests with the TOF. In a sense, a psychologist must make assumptions about what happened along the lines of: “Assuming that the accident occurred as described . . .” Whatever opinions are reached by the expert, it is important that each one be carefully described with evidence presented and reasoning detailed. In almost all cases of personal injury there is the implied issue of what effect, if any, the psychological injury has on an individual’s ability to cope with daily life. The psychologist can play a unique role in appreciating the relationship of psychological characteristics to the successful performance of different roles, including at work, within the family, and socially. Therefore, in most cases, psychologist-experts will opine as to what decrements in functional roles the plaintiff might experience now or in the future due to the injuries they have suffered. Also, the magnitude and range of psychological distress can be articulated in powerful ways by the psychologist.

Communicating Findings It is important to note that there are certain terms used within the psychologicallegal context whose meaning is different from their clinical origins. Courts often use terms in a way that is different from psychologists. This is particularly true for

500

David D. Fox

the term reliability. In psychology, the reliability of a test or procedure concerns its consistency in producing the same result. Under the law, reliability refers to information on which the TOF can rely in reaching their decision. It essentially equates to what psychologists call “validity.” Likewise, depending upon the jurisdiction, terms such as exacerbation and aggravation may have unique legal meanings not intended by the psychologist-expert. It is incumbent to be aware of the legal ramifications for any terminology used. The Report In the clinical setting psychologists often verbally provide evaluation results to the referral source, such as a therapist or physician, using terminology familiar to both parties. That is not the case in most forensic examinations. In these cases the findings and opinions are in written form and go first to the attorney that hired the psychologist, then to the opposing attorney through the discovery process, and ultimately to the TOF. Many attorneys are sophisticated in understanding psychological terminology and pertinent issues in the field. Nevertheless, it cannot be assumed that they will understand the explicit and implicit meaning of the report’s contents without thorough explanation. Therefore, it is important that all communication with attorneys and in court utilize language and terminology that is understandable to the recipients. Typically, after reaching conclusions following the evaluation and record review, psychologists will contact the retaining attorney to explain their opinions. It is important to remember that the retaining attorney is the client and has control over disbursement of the expert’s opinion and findings. In virtually all cases a written report is required but as part of a legal strategy the attorney may not want the psychologist to write the report immediately after the evaluation. The essential content of the report should be dictated by the standards of professional psychology. In contrast to many clinical reports where conciseness is valued, forensic reports are often extremely long and detailed. The report should contain the bases for each opinion including findings, the test results, and information gleaned from record reviews. Likewise, it is important to deal with inconsistencies in the data and alternative hypotheses as well. A competent forensic report should reflect an objective consideration of all of the data and avoid advocacy, hyperbole, and salesmanship. It is often appropriate to comment on the opinions of other experts participating in the case. This may require open disagreement or criticism of other psychologists, a professionally unpleasant activity. In turn, the psychologist-expert will be the subject of intense scrutiny and potential criticism from the opposing attorney and experts. Pope et al. (2006) present a checklist for good forensic reports. They include, for example: delineating the sources of information (the patient/plaintiff, collaterals, record review, testing, etc.); identifying each assessment instrument and who administered the tests; discussing the validity of the findings; addressing the referral questions; carefully describing the reasons for each conclusion and contradictory data, if present; and the degree of confidence the expert has in their opinion. Learning to consistently compose thorough but concise reports is one of the most important skills for the forensic psychologist. (For more on report writing, please refer to the chapter by Gagliardi & Miller in this volume).

Personal Injury Evaluations

501

The Legal Process Commonly, although not inevitably, personal injury cases proceed to the psychologist providing sworn testimony. This is characteristically at a deposition (the taking and recording of testimony of a witness under oath before a court reporter in a place away from the courtroom before trial). It is the opposing attorney who takes the expert deposition through questioning and examination of the expert’s documents. In depositions, experts provide testimony as though they were in court. It is under oath and subject to perjury laws and anything stated in a deposition can be used in court as representing the witness’ testimony. Typically, deposition transcripts are public record and available to attorneys and even the public. The general advice in depositions is to answer questions truthfully and completely but to not volunteer information that is not requested. In all depositions a court reporter transcribes verbatim everything that is said. In some cases depositions are video recorded as well and may be played to the jury. The purpose of a deposition is for the opposing party to find out the details of the expert’s opinion and to probe for areas of vulnerability. The tone can be collegial and casual, formal and rule-bound or, occasionally, downright hostile. One of the greatest challenges to forensic experts is to maintain equanimity during confrontation in deposition and trial. It is important to remember that it is the opposing attorney’s responsibility to their client to minimize the effect of the psychologist-expert’s testimony. They may do this through innuendo, rebuttal witnesses, or challenges to the expert’s competence and ethics. It is essential that the psychologist-expert not take these tactics personally. Psychologist-experts do not serve their client well by becoming overly emotional, defensive, aggressive, sarcastic, or uncooperative. Indeed, the attorney taking the deposition may hope for precisely such behavior because, to the TOF, it would indicate weaknesses in the expert’s opinion and flaws in credibility. At the time of deposition it will also be expected that the psychologist-experts will share their entire file on the case. This will include not only any reports but any existing drafts, notes, electronic files, billing, and so forth that was generated regarding the case. Included in materials to be made available are the test data (see APA Principles, 2002). The attorney taking the deposition will want to personally inspect the file and probably all the records reviewed. He will expect a copy of that file. This is accomplished either on site or the file may be taken by the court reporter who makes a copy and returns the original. Experts are often quizzed about all their notes and asked to read them into the record. There is often the fear among beginning forensic psychologists that their personal life will be invaded by the deposition or discovery process. This is rarely the case, but it is not impossible. Some experts have been asked for their tax returns, appointment books, and other personal information. Typically, this is handled by the attorney that retained the psychologist, but it is essential to keep in mind that the retaining attorney does not represent the psychologist. Attorneys represent their clients, either plaintiff or defendant. If the forensic psychologist feels the information requested by the opposing attorney violates his or her privacy or endangers confidentiality with other patients, it is perfectly appropriate to object and possibly refuse to answer.

502

David D. Fox

However, it may be necessary to obtain separate legal representation to defend the psychologist’s interests and prevent such disclosure. Eventually, the psychologist-expert may be required to testify before the TOF, typically a jury. In many respects, this testimony is easier than at deposition. The biggest challenge is to present the reasons for each opinion in understandable language to people who likely have no training in psychology. Testimony is elicited via direct examination by the attorney who retained the expert, followed by cross examination from the opposing attorney. This may be followed by additional redirect and recross examinations. In some instances, the judge may have specific questions as well. In all cases, it is important to address the TOF as they are the party charged with reaching a decision. Professionalism in style and content is essential. Pope et al. (2006) also has a checklist for expert witnesses regarding the use of the MMPI that is applicable to forensic work in general. Brodsky (1991, 1998) provides some additional suggestions regarding professional conduct in personal injury cases and tactics in providing testimony.

Ethical Challenges Any psychologist intending to work in the personal injury field must be familiar with the Ethical Principles of Psychologists and Code of Conduct (APA, 2002). In addition, there are specific guidelines for forensic psychologists, Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991). As a practical matter, the psychologist-expert working in personal injury cases needs to be prepared to deal with unique challenges. This comes about in part because the client usually is not the patient. In contrast to clinical practice, where the nearly exclusive responsibility is to the patient, the psychologist-expert provides services to the retaining attorney in the form of an opinion regarding a patient/plaintiff. Nevertheless, the expert has responsibilities in protecting the patient/plaintiff as well. When a testifying expert is hired, the law typically specifically excludes such work from being privileged. Despite the lack of privilege, some degree of confidentiality is still present on matters not relevant to the case. Information regarding the patient/ plaintiff may be shared with the attorneys, the court and other people involved with the case but, until it is public record, the expert may not on their own volition share this information with others. The limitations in confidentiality need to be described to the patient/plaintiff prior to the evaluation. Other major exceptions to confidentiality, such as obligation to report child abuse, et cetera, mandated by state law, may also have to be described. A forensic evaluation is particularly complex in this regard because such evaluations are often mandated by law or there is an implied consent when the patient/plaintiff’s attorney arranges the evaluation. Other aspects of informed consent have been addressed as well in position statements (Johnson-Greene, 2005). Good professional practice also encourages the psychologist to warn the patient/plaintiff to obtain consultation should he or she get access to the psychological report generated by the expert. This is to avoid potential psychological harm through misunderstanding of terminology used in the report.

Personal Injury Evaluations

503

Recently, federal law through HIPAA provides restriction of the release of protected health information while allowing access for the patient. It is doubtful that HIPAA regulations are applicable to personal injury cases. HIPAA rules state “access to protected health information may be denied if it was compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding (Pope et al., 2006, p. 357). The APA guidelines restrict access to certain psychological test materials, even in legal cases. They make a distinction between test data produced by the patient/plaintiff, which can be released, as compared to test administration materials and test stimuli, which are generally regarded as confidential. Most publishers of psychological tests consider the test stimuli to be trade secrets that would not have to be released under HIPAA or most legal guidelines. Therefore, psychologists may not disseminate copies of test questions or scoring manuals, even under subpoena, unless ordered to do so by a court. Unique to psychological-legal cases is the potential contamination from attorneys. In its most obvious form, the retaining attorney may, subtly or blatantly, indicate that they are looking for a particular opinion. It is absolutely essential as an ethical forensic psychologist to make clear to the attorney that any opinion must remain objective. It is hypothetically possible that an opinion unwelcome to the retaining attorney may result in lack of future referrals, but an ethical psychologist resists the temptation to bias an opinion. Fortunately, most attorneys are ethical in desiring to obtain an honest and objective opinion. If the psychologist-expert opinion is not helpful, then it is possible that he or she would not be called as a witness. It should also be noted that there is evidence for coaching by plaintiff attorneys to enhance the plaintiff’s clinical presentation and test results to support their claim (Lees-Haley, 1997). This represents yet another possible contaminating factor in performing a valid psychological evaluation (Wetter & Corrigan, 1995; Victor & Abeles, 2004) In a similar vein, psychologists conducting personal injury evaluations are sometimes confronted with the possibility that the opposing attorney wishes to be present during the evaluation or feels it should be recorded in some fashion. This is both an ethical and practical challenge for the psychologist-expert. The fundamental issue relates to whether a valid evaluation can take place under such conditions. Not only does training in psychology emphasize the need for one-on-one assessment but there is ample evidence that the presence of such distractions can alter both interview behavior and test performance (Gavett, Lynch, & McCaffrey, 2005). The psychologist will have to judge whether such deviations from standard clinical practice are of such magnitude as to prevent continued participation in a case.

Case Example The following is based on an actual personal injury case. Although the original case information is not technically confidential, names and data have been modified and simplified to illustrate important aspects of such cases and to protect the privacy of the participants. The Personal Injury Tort Process I was first contacted on this case through a phone call from an attorney, Ms. Johnson, representing the defense in December 2004. The attorney described the essentials of the

504

David D. Fox

case and requested a copy of my CV and a fee schedule, which I provided. A few days later she called to confirm my retention and I requested a letter from her indicating that I was retained as a testifying expert. Within a month I provided my initial impression of the case based on extensive records provided to me by the attorney. An independent psychological examination was scheduled, but the plaintiff’s attorney opposed any examination. Consequently, Ms. Johnson filed a motion with the court to compel the examination. To support her motion, she requested a declaration from me describing my qualifications, a general description of the evaluation, and requirements for a valid psychological evaluation to take place. The motion was granted, and the evaluation occurred in January 2005. Within a week of the evaluation, I informed the retaining attorney of my findings, and she requested that I proceed with the report promptly as the trial was upcoming.

Case Example Mr. Smith is a 55-year-old man who was involved in a motor vehicle accident in July 2002. He suffered physical injuries, particularly to his face and back. He is also claiming an exacerbation of psychological symptoms, particularly depression, that resulted in a psychiatric hospitalization several months later. Mr. Smith volunteered that he has a long history of depressive disorder primarily treated with antidepressant and antianxiety medication. He reported that he has had a 2-year psychiatric hospitalization about 10 years previously. He is claiming that his depression was minimal before the accident but became much worse after. When I evaluated him, nearly 3 years after the accident, his depression had remitted again. Although he remains on Social Security disability for an unrelated medical condition, he continues to work as an artist. What is most pertinent from the extensive medical and psychological records is that his self-reported history underplays the degree and the frequency of recurrence of depression. There have been multiple suicide attempts and three hospitalizations prior to the accident. Previous diagnoses include Recurrent Major Depression as well as severe Borderline Personality Disorder. Not only is there a previous history of cocaine and alcohol abuse, but he has been dependent upon opiate medication for several years. He is a habitual overutilizer of medical care. His various medical problems either predated the accident or are unrelated, according to his treating physicians. Despite his claim of suffering worsening depression soon after the accident, medical records do not confirm worsening depression. He did not engage in psychotherapy after the accident. His subsequent hospitalization was apparently prompted by a conflict with his health providers regarding access to medical care and opiate medication. The records clearly demonstrate that this man has long-term adjustment problems characterized by recurrent depression, somatization, and borderline personality characteristics. Upon examination, the only relevant finding was of histrionic characteristics and a lack of clinical depression. Some psychological tests were administered including measures of validity, psychopathology, and attention/concentration. He performed completely normally on validity testing, and the ability to pay attention and process cognitive information efficiently. The MMPI-2 results showed some guardedness in admitting to personal limitations and a reluctance to reveal psychological symptomatology. The clinical scales showed mild but clinically significant elevations on the Hs and Hy scales, suggesting distinct somatizing tendencies. The Depression scale was not elevated.

Personal Injury Evaluations

505

Case Formulation and Opinions The psychological evaluation reveals that, regardless of any contribution from genuine medical problems, he has always been prone to overreacting to physical illness and may use his complaints in a manipulative way. Although there are no indications he intentionally exaggerated his psychological problems to enhance his case, comparison of his self-reported history with the actual medical records reveals that his description of functioning prior to the accident is inaccurate. Whether these various discrepancies represent conscious misrepresentation or are honest failures of recollection cannot be determined reliably. The diagnoses were: Major Depressive Disorder, recurrent, in remission with somatization features and opiate dependence. There is also a diagnosis of Personality Disorder NOS with prominent histrionic and borderline features. By his self-report and the test results, Mr. Smith is not currently depressed but he is at risk for a recurrence of his depression. From the psychological-legal perspective the issue is whether the accident contributed to his subsequent temporary worsening of depression. The records indicate he was in the midst of a significant depressive episode just prior to the accident, and there was no evidence of worsening of symptoms immediately after. It is hypothetically possible that his medical problems were made worse by the accident which, in turn, caused his depression to appear a few months later. In this case, my opinion was that his medical conditions (most of which were pre-existing) were somewhat contributory to his brief depressive episode because they were stressful and painful. The relation of the medical problems to the accident is deferred to other specialists and therefore the conclusion as to whether the accident could have produced psychological deterioration via this mechanism is dependent upon that determination. As he was already technically disabled from his medical problems prior to the accident, there is no reason to believe that he has suffered an additional psychological disability as well. The major lesson demonstrated in this case is that reliance on Mr. Smith’s self-report alone would have led to incorrect conclusions regarding the effect of the accident on his psychological condition. The records and the psychological testing also provided an objective basis for concluding the presence of pre-existing personality problems. Psychological-legal cases such as this can be extraordinarily complex, and it is essential to the use of multiple sources of data to reach conclusions. The Concluding Legal Process The report was provided to the retaining attorney. Although no subpoena for deposition was issued, Ms. Johnson, as my client, requested that I testify at the deposition and released my entire file to the plaintiff’s attorney. The deposition was brief, lasting about 1 hour, with the usual questions about my qualifications as an expert and the reasons for each of my opinions. I subsequently testified at trial for approximately 2 hours. As is often the case, Mr. Smith was present during my testimony, which involved description of his personality problems and psychological dynamics, a situation I found uncomfortable. (This illustrates one of the challenges for the forensic

506

David D. Fox

psychologist in personal injury cases. Interestingly, even though I was testifying for the defense, after my testimony Mr. Smith approached me and thanked me for my honest testimony.) Although it is tempting to focus on the court’s judgment as a validation of one’s work, it is more important to define success by whether the client was served through the provision of highly professional and ethical services, something that Ms. Johnson assured me was the case. Conclusion For the successful practice of forensic psychology within the personal injury context, it is necessary for psychologists, especially those trained as clinicians, to adapt their techniques, methods of case conceptualization, and practical skills to the demands of the legal process. This requires expansion of knowledge and an especially acute ability to be self-critical and tolerant of other opinions. Forensic psychology presents professional and ethical challenges but also considerable reward. This chapter has highlighted some of the major aspects of professional behavior required by the forensic psychologist to provide competent and ethical services. References American Psychiatric Association (2000). Diagnostic and statistical manual of mental disorders—IV-TR (Text Revision). Washington, DC: Author. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. Brodsky, S. L. (1991). Testifying in court: Guidelines and maxims for the expert witness. Washington, DC: American Psychological Association. Brodsky, S. L. (1998). Forensic evaluations and testimony. In G. P. Koocher, J. C. Norcross, & S.S. Hill III (Eds.), Psychologists desk reference (pp. 483–485). New York: Oxford University Press. Bush, S., Ruff, R., Troster, A. I., Barth, J. T., Koffler, S. P., Pliskin, N. H., Reynolds, C. R., & Silver, C. (2005). Symptom validity assessment: Practice issues and medical necessity. NAN Policy & Planning Committee. Archives of Clinical Neuropsychology 20, 419–426. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law & Human Behavior, 15, 441–448. Daubert v. Merrill Dow, 509 U.S. 579 (1993). de Waal, M., Arnold, I., & Eekhof, J. (2004). Somatoform disorders in general practice: Prevalence, functional impairment and comorbidity with anxiety and depressive disorders. British Journal of Psychiatry, 184, 470–476. Dodrill, C. D. (1997). Myths of neuropsychology. The Clinical Neuropsychologist, 11, 1–17. Fink, P., Steen, H. M., Sondergaard, L. (2005). Somatoform disorders among first-time referrals to a neurology service. Psychosomatics, 46, 540–548. Frye v. United States (D.C. Cir. 1923) 293 F. 1013. Gavett, B. E., Lynch, J. K., & McCaffrey, R. J. (2005). Third party observers: The effect size is greater than you might think. Journal of Forensic Neuropsychology, 4, 49–64. Gervais, R. O., Russell, A. S., Green, P., Allen, L. M., Ferrari, R., & Pieschl, S. D. (2001) Effort Testing in Patients with Fibromyalgia and Disability Incentives. Journal of Rheumatology, 28, 1892–1899.

Personal Injury Evaluations

507

Green, P., Rohling, M. L., Lees-Haley, P. R., & Allen L. M. (2001). Effort has a greater effect on test scores than severe brain injury in compensation claimants. Brain Injury, 15, 1045–1060. Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 505–557. Greiffenstein, M. F. (in press). Basics of forensic neuropsychology. In J. Morgan & J. Ricker (Eds.), Handbook of Clinical Neuropsychology. London: Francis & Taylor. Greiffenstein, M. F. (2002). An analysis of premorbid MMPI profiles in 28 late postconcussion claimants. Division 40 (Clinical Neuropsychology) Newsletter, 20, 9–14. Greiffenstein, M. F., & Baker, W. J. (2001). Comparison of premorbid and postinjury MMPI-2 profiles in late postconcussion claimants. Clinical Neuropsychologist, 15, 162–170. Greiffenstein, M. F., Baker, W. J., & Johnson-Greene, D. (2002). Actual versus self-reported scholastic achievement of litigating postconcussion and severe closed head injury claimants. Psychological Assessment, 14, 202–208. Greiffenstein, M. F., Fox, D. D., & Lees-Haley, P. R. (2007). The MMPI-2 in detection of noncredible brain injury claims: Fake bad scale and other validity indicators. In K. Boone, Assessment of Feigned Cognitive Impairment (pp. 210–235). New York: Guilford Press. Grillo, J., Brown, R. S., Hilsabeck, R., Price, J. R., & Lees-Haley, P. R. (1994). Raising doubts about claims of malingering: implications of relationships between MCMI-II and MMPI-2 performances. Journal of Clinical Psychology, 50, 651–655. Grove, W. M., Barden, R., & Garb, H. N. (2002). Failure of Rorschach-Comprehensive-Systembased testimony to be admissible under the Daubert-Joiner-Kumho standard. Special issue: Expert testimony in the courts: The influence of Daubert, Joiner, and Kumho decisions, part I. Psychology, Public Policy, and Law, 8, 216–234. Johnson-Greene, D. (2005). Informed consent in clinical neuropsychology practice: Official statement of the National Academy of Neuropsychology. Archives of Clinical Neuropsychology, 20, 335–340. Kumho Tire v. Carmichael, 526 U.S. 137 (1999). Lally, S. L. (2003). What tests are acceptable for use in forensic evaluations? A survey of experts. Professional Psychology: Research and Practice, 34, 491–498. Larrabee G. J. (2000). Neuropsychology in personal injury litigation. Journal of Clinical and Experimental Neuropsychology, 22, 702–707. Larrabee, G. J. (2005). Forensic neuropsychology: A scientific approach. New York: Oxford University Press. Law.com. (n.d.) Retrieved May 22, 2006 from http://dictionary.law.com/. Layne, C., Miller, J., & Schmucker, K. (1997). ‘Hypochondriacs’ who sue: Causes and correlates of somatoform disorders. American Journal of Forensic Psychology, 15, 53–63. Lees-Haley, P. R. (1992). Psychodiagnostic test usage by forensic psychologists. American Journal of Forensic Psychology, 10, 25–30. Lees-Haley, P. R. (1997). Attorneys influence expert evidence in forensic psychological in neuropsychological cases. Assessment, 4, 321–324. Lees-Haley, P. R., Iverson, G. L, Lange, R. T., Fox, D. D., & Allen, L. M. (2002) Malingering in forensic neuropsychology: Daubert and the MMPI-2. Journal of Forensic Neuropsychology, 3, 167–204. Lees-Haley, P. R., Smith, H. H., Williams, C. W., & Dunn, J. T. (1996). Forensic neuropsychological test usage: An empirical survey. Archives of Clinical Neuropsychology, 11, 45–51. Maruish, M. E. (1999). The use of Psychological testing or treatment planning and outcomes assessment (2nd ed.). Mahwah, NJ: Lawrence Erlbaum & Associates.

508

David D. Fox

Melton, G. B., Petrilla, J.,Poythress, N. G., & Slobogin, C. (1987). Psychological evaluations for the courts. New York: Guilford. Melton, G. B., Petrilla, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts (2nd ed.). New York: Guilford. Mittenberg, W., DiGiulio, D. V., Perrin, S., & Bass, A. E. (1992). Symptoms following mild head injury: Expectation as aetiology. Journal of Neurology, Neurosurgery & Psychiatry, 55, 200–204. Mittenberg, W., Patton, C., & Canyock, E. M. (2002). Base rates of malingering and symptom exaggeration. Journal of Clinical & Experimental Neuropsychology, 24, 1094–1102. Pope, K. S., Butcher, J. N., & Seelen, J. (2006). The MMPI, MMPI-2, and MMPI-A in court (3rd ed.). Washington, DC: American Psychological Association. Rabin, L. A., Barr, W. B., & Burton, L. A. (2005). Assessment practices of clinical neuropsychologists in the United States and Canada: A survey of INS, NAN, and APA Division 40 members. Archives of Clinical Neuropsychology, 20, 33–65. Rogers, R. (1998). Assessment of malingering on psychological measures: A synopsis. In G. P. Koocher, J. C. Norcross, & S.S. Hill III (Eds.), Psychologists desk reference (pp. 53–57). New York: Oxford University Press. van Gorp W. G., Humphrey L. A., Kalechstein A. L., Brumm V. L., McMullen W. J., Stoddard M. A., & Pachana N. A. (1999). How well do standard clinical neuropsychological tests identify malingering? A preliminary analysis. Journal of Clinical and Experimental Neuropsychology. 21, 245–250. Victor, T. L., & Abeles, N. (2004). Coaching clients to take psychological and neuropsychological tests: A clash of ethical obligations. Professional Psychology: Research and Practice, 35, 373–379. Wetter, M. W., & Corrigan, S. K. (1995). Providing information to clients about psychological tests: A survey of attorneys’ and law students’ attitudes. Professional Psychology: Research and Practice, 26, 474–477. Ziskin, J., & Faust, D. (1988). Coping with psychiatric and psychological testimony (vols. I–III). (4th ed.). Los Angeles, California: Law and Psychology Press.

19 Civil Commitment Evaluations Eric Strachan

Civil Forensic Assessment Imagine a man named John. John has had his share of problems since graduating from high school. Despite a great deal of promise up until graduation, he has since been in and out of psychiatric hospitals with limited benefit. When John is in the hospital he receives basic care consisting of psychiatric medications to which he often objects initially and ultimately discontinues. The meds have been of modest—but certainly never complete—benefit in terms of positive psychiatric symptoms but have led to a variety of physical problems and troubling side effects (weight gain, metabolic syndrome, involuntary motor movements, and avolition). They have done little to improve other sources of John’s problems such as unemployment, unstable housing, lack of social support, and a life that alternates between boredom and intense anxiety and fear. He acknowledges that he has a diagnosis of schizophrenia but does not think schizophrenia is his major problem. John currently lives in an apartment, paid for by his parents, that he keeps “secure from the microwave beams” by coating every wall and window with aluminum foil. He often (but not always) believes there is a chip in his gut that detects the beam and causes him great pain in punishment for his sins. John’s landlord is not amused by the aluminum foil wallpaper and John’s parents are constantly dealing with threats from the landlord to evict John. They know from experience that John will not live at home (no protection from the beams) but also that he is in danger of serious harm on the streets from people and from the elements. From time to time John is able to work in supported settings and access services at a local community mental health center. But because John’s problems are episodic, access to work and services is episodic as well. Psychologists who provide forensic evaluation services in civil cases are likely to see people who present with a set of problems similar to John’s. There is evidence that the content of John’s thoughts is unusual with important (i.e., behaviorally relevant) components that are almost certainly untrue. There is also evidence that John’s belief

509

510

Eric Strachan

in the validity of those thoughts changes, based on a variety of factors (some known, some unknown). John has a history of age-appropriate functioning and educational achievement that changed suddenly in early adulthood. His parents give him as much support as he allows them to but the relationship is strained. The treatment that John receives is somewhat helpful but somewhat unpleasant and unlikely to address important sources of John’s disability. In addition, John typically does not want to take psychiatric medications because of side effects but has little access to other forms of rehabilitation and recovery. At one point or another in John’s life he may require evaluation for civil commitment, guardianship proceedings, psychiatric advance directives, and treatment refusals or other issues related to informed consent (e.g., research). In this chapter, I intend to describe the “world as it currently is” regarding such civil mental health proceedings and then to challenge that status quo in ways that, I believe, could improve the science and practice of civil forensic assessment. I think that evaluators-to-be will find that doing civil forensic assessments with an eye to a more psychologically sophisticated future will not detract from their ability to complete current clinical, ethical, and legal obligations while demanding more from courts, legal decisionmakers, and psycho-legal researchers.

Setting the Scene There are a number of contextual concepts that should be clarified before diving any deeper into the specifics of civil forensic assessment. To begin, I have already outlined a standard list of civil legal proceedings that are likely to involve professional evaluation or expert testimony (involuntary civil commitment, guardianship, psychiatric advance directives, treatment decision making, and research-informed consent), and each of these has different legal bases and different rules that vary (at least somewhat) from state to state. The first concept, then, is that most (all, actually, for the purposes of this chapter) civil mental health law is established at the state level and handled in state courts. Therefore, competent civil forensic evaluators need to be intimately familiar with the laws (legislation, case law, and administrative rules and regulations) of their particular state. In addition, the reality of practice “on the ground” is likely to reflect political and economic pressures that dictate how the laws are actually carried out. For example, a shortage of publicly-funded inpatient psychiatric hospital beds may lead affected jurisdictions toward de facto restrictions of involuntary civil commitments. Given that introduction, the task at hand begins with three questions. The first is, where does government power to intervene in matters of mental health come from? Following that, what needs to be done in a competent civil forensic assessment? The final question combines the first two into something like, “Does what we do follow coherently from what we should be doing, based on the source of government power to intervene in the private lives of its citizens?” The answer to the final question will then open the door to further discussion of changing the system for the benefit of those targeted by mental health interventions as well as treatment and rehabilitation providers, lawyers and judges, and the general public.

Civil Commitment Evaluations

511

The Role of the Government: Parens Patriae and Police Powers The power of a democratic government to interfere in the private lives of its citizens is meant to be limited. However, governments are established, in part, for the dual purposes of protecting the safety and welfare of citizens and protecting or caring for those who are unable to protect or care for themselves. The former is typically referred to as the state’s police power, whereas the latter is referred to as the state’s parens patriae authority/obligation (which translates something like “parent of the state”; see, e.g., Schopp, 2001, for a fuller description of these powers). Criminal statutes and systems of punishment are rooted in police power and maintain their moral authority through strict procedural protections for those accused of wrong doing (to prevent the conviction of innocent people). Involuntary treatment and other forms of intrusion into normally self-regarding matters are rooted in the parens patriae obligation, which historically has not included the same level of procedural protection. When people have demonstrated that they are a threat to society—by committing a crime, for example—the state relies on its police power to rein in that behavior and retrospectively punish it. To prevent abuses of that power, however, the state has to follow strict rules (e.g., reading the Miranda rights at arrest, providing adequate counsel, avoiding cruel and unusual punishments) and standards of proof (“beyond a reasonable doubt” for criminal offenses) in order to intervene. When, on the other hand, people are considered dangerous because of mental disorders, the state relies on its parens patriae authority to justify providing care and assistance even if the person, in his or her presumably incapacitated state, does not choose such care and assistance. In those cases, the procedural protections are less salient and the standard of proof is lower (typically, either a “preponderance of the evidence” or “clear and convincing evidence”; the latter is theoretically stricter than the former). Plus, the intervention is often prospective (i.e., preventing exposure to risk rather than punishing a crime already committed). As just one example, contemporary mental health law reflects the fact that involuntary civil commitment—regarded by the Supreme Court as a “massive curtailment of liberty” (Humphrey v. Cady, 1972, p. 509)—is an intolerable intrusion unless it is supported by a finding that the person to be committed is mentally ill and dangerous. This formula attempts to reinforce the idea that while individual liberty is central to American political morality, liberties can be revoked in the face of a sufficiently compelling societal (or governmental) interest (Morris, 1999; Schopp, 2001; Winick, 1997). In other words, according to the standard account, the decision to deprive an individual of freedom should not be made lightly, but theoretically there are ways in which such action can be justified without sacrificing important political ideals. The mental illness predicate in current civil commitment law, then, is thought to aid legal decision makers in deciding who is eligible for commitment (i.e., justifying the special treatment), and the dangerousness predicate is thought to provide procedural protection for potential detainees (i.e., preventing commitment for people who are merely odd or disagreeable). Within this system, however, there are some who believe that many mentally ill adults are prevented from receiving the care they “require”—but do not want—because the procedural bar is too high (Torrey, 1995). On the other hand, there are some who believe that the system does not do enough to

512

Eric Strachan

protect the interests of patients from the will of clinicians practicing an imprecise craft with questionable outcomes (Morse, 1987). The controversies behind the conventional wisdom are the subject of voluminous debate that will not be repeated in detail here (a sampling of relevant readings would include Morris, 1999; Janus, 1996, 1997, 2000; Schopp, 2001; Winick, 1997). What is true, however, is that forensic evaluators in civil commitment proceedings are going to be asked their opinion regarding the extent to which a defendant is mentally ill and dangerous and, depending on the jurisdiction, whether the dangerousness is meaningfully connected to the mental illness. At this point it is worth mentioning that involuntary civil commitment is different from other forms of civil mental health interventions in ways that make it vulnerable to the kind of “procedural protections” versus “right-to-treatment” arguments that plague civil commitment law. As I have already noted, involuntary civil commitment in all U.S. jurisdictions is going to be allowed only when the person in question is both mentally ill (defined in various ways) and dangerous to self or others. Dangerousness to others is basically self-explanatory, although it should be noted that the dangerousness is supposed to be imminent rather than at some hypothetical point in the future. Dangerousness to self, however, can be either suicidality (the classic form of dangerousness to self but, again, with the imminent qualifier) or grave disability. Grave disability has not undergone the kind of empirical and legal analysis that dangerousness to others and suicidality has (Turkheimer & Parry, 1992), but the general idea is that persons are so disabled as a consequence of their mental illnesses that they are likely to decompensate clinically and come to significant harm if left alone. The reliance on vaguely defined notions of mental illness and dangerousness is what differentiates involuntary civil commitment from criteria for guardianship, psychiatric advance directives, and other treatment decisions. In each of the latter cases, the question focuses on competent decision making in specific contexts without reference to clinical concepts of mental illness or dangerousness per se. That is not to say that information about mental illness and dangerousness are left out of those equations, but legal findings on those questions are not required. Instead, the basic question is, does this person have the capacity to make competent decisions in self-regarding matters?1 In the case of guardianship, then, legal decision-makers are asked to decide whether a person has the capacity to make competent self-regarding decisions either broadly or in specific contexts (e.g., finances, health care, contracts). It is possible for a court to rule that a person is incompetent and therefore in need of a guardian, accountable to the court, to make important decisions. The decisions that guardians make on behalf of their wards are supposed to be some combination of what the person would choose if he or she were competent and, if that is not immediately ascertainable, in his or her best interest. The same basic notion underlies treatment decision-making (informed consent). It is important to keep in mind that “under ordinary conditions, competent adults have a right to refuse health care, including life-sustaining care” (Schopp, 2001, p. 19). Thus, for treatment decision-making (see Winick, 1997, for a comprehensive overview of the right to refuse treatment), the question is does this person have the capacity to make competent decisions in health-care related matters? If not, a substitute decision-maker will be appointed or a predetermined course of treatment (typically medications) will be implemented. An additional factor that is

Civil Commitment Evaluations

513

relevant to treatment refusals is whether the person is refusing without posing a threat or is both refusing and posing a threat. In the latter case, courts have determined that the police power allows psychiatrists to take steps which “in the exercise of professional judgment . . . (are) deemed necessary to prevent the patient from endangering himself or others” (Rennie v. Klein, 1982, p. 269). Under the parens patriae authority—that is, when the person is not a threat to others—psychiatrists also have the ability to involuntarily administer some treatments (e.g., psychotropic medications but not lobotomies; see Aden v. Younger, 1976) but only for patients who have been deemed incompetent to participate in treatment decisions. Even that, however, can sometimes be undermined by poorly conceived statutes. In Nebraska, for example, the civil commitment statute specifically states that “subjects in custody receiving treatment shall have the right to be considered legally competent for all purposes unless they have been declared legally incompetent” (Neb. Rev.St. §83-1068). However, in a subsequent section of the statute, it is established that a civilly committed individual has the right “to refuse treatment, except such treatment as is essential in the judgment of the medical health professional in charge . . . to . . . substantially improve [the patient’s] mental illness” (Neb.Rev.St. §83-1068; emphasis added). This is a de facto judgment of incompetence for the purpose of healthcare decision-making because the civilly committed person is only allowed to refuse treatments that the “medical health professional in charge” does not think are “essential” in relation to the person’s mental illness. Assuming, then, that the average medical health professional in charge is not inclined toward malfeasance (i.e., deliberately prescribing unwanted and unnecessary treatments) the person is only allowed to refuse treatments that would not be offered in the first place. Psychiatric advance directives (PADs) follow the same line of reasoning as guardianship and treatment refusals but have a particular spin attached. PADs are designed to allow mental health consumers to identify—in advance of a period of incompetence related to psychiatric symptom exacerbation—their competently-chosen treatment preferences (Srebnik, Appelbaum, & Russo, 2004). PADs can also include a Durable Power of Attorney specification giving decision-making authority to a specific person for specific purposes (similar to guardianship but done voluntarily and in advance). Not all states have PAD statutes (in fact, fewer than half do), and even those that do cannot always accommodate them because some forms of treatment are not going to be available. This leaves aside the question of whether PADs can or should be used to express a desire for no treatment whatsoever (as some mental health consumers might choose). In any case, the legal relevance is establishing that the person is competent to make such treatment choices at the time he or she creates the PAD and is then incompetent at the time of its deployment.

Conducting Civil Forensic Evaluations Based on the discussion just completed, I would like to divide civil forensic evaluations into two kinds. The first is evaluations for involuntary civil commitment. The second is evaluations related to competent decision-making. This second category includes treatment decision-making, PADs, and guardianship.

514

Eric Strachan

Evaluations for Involuntary Civil Commitment Understanding and assessing mental illness. Despite nuances in different jurisdictions, the basic criteria for involuntary civil commitment are mental illness and dangerousness to self or others. Sometimes grave disability is carved out specifically, sometimes it is implicit in dangerousness to self, and sometimes it does not qualify as a criterion. Again, it is imperative for forensic evaluators to be intimately familiar with the statutes, case law, administrative rules, and practical realities of their region. In Washington State, for example, involuntary civil commitment is allowed if a person, as a result of a mental disorder, presents a likely risk of serious harm or is gravely disabled (Revised Code of Washington [RCW] 71.05.150). For the purposes of this statute, “mental disorder” is defined as “any organic, mental, or emotional impairment which has substantial adverse effects on a person’s cognitive or volitional functions” (RWC 71.05.020). The first thing that many commentators note at this point is that the legal definition of mental disorder makes no specific reference to current clinical diagnostic categories and thus the clinical and legal definitions of mental illness are different. This well-intentioned attention to detail, however, washes out somewhat when we ask the question that immediately follows: If the legal definition of mental illness or disorder does not refer to diagnostic categories, what, exactly, does it refer to? Are there other ways to evaluate “organic, mental, or emotional impairments” that are commonly used in clinical practice besides DSM-IV categories (Diagnostic and Statistical Manual of Mental Disorders, 4th edition [DSM-IV], APA, 1994)? As Schopp (1998) has written, Although the courts (have) denied that the clinical meaning of mental illness controls for statutory purposes, they (have) relied heavily on expert testimony by clinicians and on the current diagnostic manual. A reasonable reading of these cases would support the interpretation that individuals fulfill mental illness, mental abnormality, personality disorder, or analogous statutory requirements just in case clinical expert witnesses testify that they do (p. 327; Schopp’s use of the phrase “just in case” can be understood as “whenever”).

To be clear, Schopp (1998) is not advocating for the use of DSM categories in mental health statutes. But for the purposes of current civil forensic evaluation, he recognizes that most evaluators conduct a clinical interview with the purpose of establishing a DSM diagnosis, whether or not such diagnoses are part of the statutory definition of mental illness/disorder/abnormality. Following that step, some consideration is typically given to whether the diagnosis in question can be linked to cognitive or behavioral dysfunction of the kind relevant to the case at hand. It is worth noting, though, that in Washington as in several other states, there is specific mention that the “likely risk of serious harm” (discussed below) is the “result of a mental disorder.” In other words, it cannot merely be the case where a person is coincidentally mentally disordered and dangerous without a connection between the two. Imagine, for example, a person who has a diagnosis of schizophrenia based on hearing distressing voices and who is at risk of serious harm and even death because he refuses treatment and lives on the street where he has been assaulted numerous times (including the night before he is being evaluated for involuntary civil commitment). Imagine further that the person is refusing treatment not because of his voices

Civil Commitment Evaluations

515

but because he is a Christian Scientist and was raised by strict Christian Science parents who support his refusal of psychiatric intervention. According to the black letter of the Washington statute, this person might not be eligible for involuntary treatment because his dangerousness (refusing treatment and thus leaving himself vulnerable) is not a result of his mental illness. If, on the other hand, he is refusing treatment because he believes he will receive the blood of the devil and be cast down into hell for all eternity, a court might be more sympathetic to involuntary civil commitment. Problems with de facto reliance on DSM categories in invoking legal mental illness will be discussed in greater detail below. Because of the problems associated with imposing DSM categories on statutory systems that do not reference them, momentum is growing for functional assessments of mental illness that are better related to the legal questions in civil commitment cases (Grisso & Appelbaum, 1998; Morse, 1987; Schopp, 2001). The most prominent example of functional assessments would be the MacArthur instruments and their offspring (see below) that have been developed to assess competence in treatment decision making, research-informed consent, and psychiatric advance directives, among others. Those instruments focus on the legally-established criteria for competent decision making: understanding, appreciation, rationality, and expression of a choice. Because civil commitment does not reference (and has no direct legal bearing on) decisional competence, such instruments are not of specific utility in civil commitment proceedings. However, their general approach provides a good framework for conducting a functional assessment of mental illness that could be useful in civil commitment proceedings. I would characterize a reasonable functional approach as consisting of: 1. Understanding the referral question and history (i.e., Why is civil commitment potentially indicated in this case?) and the clinical claims made about the person 2. Assessing additional relevant clinical constructs, especially neuropsychological functioning 3. Assessing the link between the clinical picture and the person’s explanation of his or her situation (including specifics about the person’s justification for his or her hesitance in seeking voluntary treatment) 4. Making a statement describing the clinical picture, whether it reflects impairment, and whether the impairment exposes the person or the public to the kind of danger that is relevant to civil commitment proceedings

Let’s take each of these in turn. Understanding the Referral Question, History, and Clinical Claims Although developing a clear understanding of why someone is being evaluated for civil commitment may sound self-evident, it bears mentioning, given that civil commitment is possible based on two or three different legal findings—dangerousness to self, dangerousness to others, and possibly grave disability—in addition to the mental illness finding and other contextual variables. This is essentially an informationgathering stage that will precede a clinical interview and inform the dialogue with the person. Where this information comes from will vary by jurisdiction and situation, but in general this stage would include review of medical records and any

516

Eric Strachan

documentation regarding the reasons for referral and possible civil commitment. Specifically, as an evaluator, one is looking for evidence that the person’s clinical presentation can be linked to the dangerousness that is being claimed (and that the dangerousness being claimed meets the statutory definitions—typically, recent behaviors). Recall that the person cannot merely be mentally ill without evidence of dangerousness. Nor can the person merely be dangerous without any evidence of mental illness. The information gathered should be useful in querying the person during the subsequent interview assessing the link between the clinical picture and the refusal to seek voluntary treatment. Thus, the evaluator might look for history of diagnosis, treatment, and treatment response; recent dangerous behaviors that seem linked to some mental, emotional, or cognitive problem; and some sense that the person is either denying obvious behavioral and cognitive problems or explaining those problems in ways that fail a test of basic rationality (more on that below). It will be helpful if the evaluator gathers the information with an eye to how he or she might turn the information into the kinds of questions outlined in the “Assessing the Link” section below. That is, the evaluator will want to be able to ask questions about the person’s understanding of his or her diagnosis, the kinds of behaviors that others are concerned about, how the person explains those behaviors, and how the person justifies not seeking help. Assessing Relevant Clinical Constructs It is my assertion that a brief neuropsychological screening can be of value in civil commitment evaluations regardless of the ultimate disposition. Realistically speaking, however, many forensic evaluators do not have the time to include such a battery, especially during the early stages of civil commitment proceedings. Even so, a brief mental status exam such as the Folstein Mini Mental Status Exam (MMSE) can be informative, particularly if the results show notable impairment. Better than the MMSE would be a brief but multidimensional screening such as the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS; Randolph, 1998). The RBANS measures a number of basic cognitive abilities—immediate and delayed memory, attention, language skills, visuospatial/constructional ability—relevant to understanding how a person takes in, manipulates, and uses information. An additional benefit of using the RBANS is that the scoring is standardized with reference groups that include both the general population and specific diagnostic groups (including schizophrenia). Some measure of executive functioning, such as the Wisconsin Card Sorting Task (Grant & Berg, 2005), would also be valuable. Serious impairments in any of these areas might help explain how and why a person is behaving in ways that suggest the need for involuntary treatment. One example of how neuropsychological data might inform an evaluation is when the data suggest impairment in memory, language skills, and executive functioning. Having obtained these results, the evaluator would be able to include some text in the final report suggesting that the person being evaluated (let’s imagine a man, in this case) is likely to have difficulty in retaining information related to his circumstances and the various options available to him. This lack of understanding may be distressing in and of itself, or it may cause the person to revert back (time and again) to

Civil Commitment Evaluations

517

some unhelpful or false explanation of what is happening to him. In addition (based on the particular executive functioning outcomes), it may be that the person has a difficult time initiating goal-oriented behavior, changing course when such change is required, or staying focused on one particular course as long as is necessary. And, finally, the person may have some difficulty understanding or generating the relevant language to make sound decisions in cooperation with his treatment team. Any one of these findings would be relevant to the question of mental disorder resulting in dangerousness. Plus, there is value beyond the evaluation because the data may help future providers build empathy and develop a better, more comprehensive treatment plan. Assessing the Link between Clinical Presentation and Personal Explanations and Writing the Report This is the crux of the evaluation. At this point the evaluator is asking the person about his or her understanding and explanation of the current situation, following a complete description of the purpose and structure of the interview. Because these evaluations will typically have some legal mandate, they do not necessarily require informed consent per se. All the same, better rapport is likely to generate better results. If the person refuses the interview, it is of central importance to document the attempt and the refusal, and to qualify the report accordingly (see Jackson & Richards, this volume). In terms of information that is valuable at this point, Saks (1991) and Slobogin (1996) have presented a compelling case for using a “basic rationality” standard to assess whether a decision is being made competently. Although they are talking about decisional competence which, again, is not the question in current civil commitment jurisprudence, an evaluation of basic rationality can be informative in a civil commitment evaluation. The standard of basic rationality as described by Saks and advocated by Slobogin is simple: First, does the person understand the relevant facts of the case? And second, does the person have any patently false beliefs about those facts? If the answer to the first question is “yes” and the answer to the second questions is “no,” that might argue against the appropriateness of civil commitment. If the reverse is true, however, civil commitment might be indicated. Along these lines, it is of central importance for evaluators to seek out information that might disconfirm either the mental illness or dangerousness predicates in addition to seeking out information that confirms it. Thus, if the person being evaluated makes a statement such as “I won’t go to the hospital because they’re trying to poison me,” it is important to gain a full understanding of the meaning of that statement. Does the person really believe the intention of hospitalization is fatal poisoning (a patently false belief)? Or is the person telling the evaluator in shorthand that the side effects of the medications are troublesome (likely an accurate reflection of treatment history)? During this phase of the evaluation, the evaluator is armed with a social and psychiatric history, a clear understanding of the referral question and relevant clinical claims, and perhaps even some basic neuropsychological data. This allows the evaluator to ask questions of the person being evaluated that are specific to his circumstances and the relevant legal criteria. In Washington, as in many states, the evaluator would want to structure questions in order to tell a story that runs “This person believes (or experiences) the following things (e.g., a particular set of delusions or a particular set

518

Eric Strachan

of distressing voices) and exhibits the following functional impairments (if RBANS or other such data are available). Such phenomena are often associated with a diagnosis of (fill in the blank) and that diagnosis is warranted in this case. Because of this person’s beliefs (or hallucinations, or negative affect, or social withdrawal, etc.), the person has in the recent past engaged in the following dangerous behaviors (again, fill in the blank). The person explains the symptoms and behaviors in the following way. In my opinion, these behaviors are the result of the mental illness and functional impairments described above.” Note that the evaluator is not making a judgment about the appropriateness of civil commitment (which is a legal, not clinical, decision). A final point is to make the report complete and comprehensive but succinct. It is of little use to anyone involved to write a report so long that no one will read it thoroughly. Understanding and assessing dangerousness. This assessment will take place as part of the functional assessment described above. However, because there are several issues specific to assessing dangerousness, I have separated it out. In the State of Washington, “likelihood of serious harm” is defined as, A substantial risk that: (i) physical harm will be inflicted by a person upon his or her own person, as evidenced by threats or attempts to commit suicide or inflict physical harm on oneself; (ii) physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm; or (iii) physical harm will be inflicted by a person upon the property of others, as evidenced by behavior which has caused substantial loss or damage to the property of others; or (b) The person has threatened the physical safety of another and has a history of one or more violent acts. (RCW 71.05.020)

As opposed to other forms of dangerousness assessment, particularly those that attempt to predict future dangerous behavior, civil commitment statutes require current behavioral evidence of risk (Lessard v. Schmidt, 1972, established the behavioral evidence requirement that has been adopted in civil commitment law). Thus, the use of predictive tools is not necessary for involuntary civil commitment assessments. In Washington, a competent evaluation would require specific detailing of behaviors (including threats) that have occurred in reasonable proximity to the evaluation itself (i.e., the behaviors cannot be old or unrelated to the current context). And again, there would need to be some meaningful connection between the mental illness and the dangerousness. If we take the case that began this chapter as an example, we might imagine that John has been evicted from his apartment and is living on the streets where he has been the victim of assault and robbery and is also exposed to the elements without adequate protection. If it is the case that John simply could not or did not pay the rent, his current situation might not be cause for involuntary treatment. If, on the other hand, it could be shown that John’s homelessness and decompensation were the result of his psychotic experiences, he might be eligible for involuntary treatment. It bears mentioning at this point that the language of involuntary civil commitment statutes such as Washington’s leave important questions unanswered. Recall from the mental illness section above, that the statute requires a finding of some “organic, mental, or emotional impairment which has substantial adverse effects on a person’s cognitive or volitional functions.” The problem with this definition is that “impairment,” “substantial,” “adverse,” “effects,” and “functions” are not further defined.

Civil Commitment Evaluations

519

Although lacking a definition of each of these is problematic, not having a clear sense of what is meant by “substantial” is particularly so. The key for forensic evaluators is not to get drawn into disputes as to what constitutes substantial impairment. Professional evaluations and expert testimony should fulfill a particular purpose in legal proceedings and that purpose is to exercise relevant professional judgment in the domain of professional expertise (Schopp, 2001). That domain, of course, is clinical and not legal. Making a judgment as to what constitutes “substantial” impairment is a legal decision (not clinical) because “substantial” in this case refers to the notion that the impairment is substantial enough (i.e., sufficient) to warrant involuntary treatment based on principles of American liberal democracy. Clinical evaluators can and should offer every piece of information that serves the purpose of adequately describing, and drawing warranted inferences about, the defendant in involuntary civil commitment hearings. They should not, however, be tempted to offer, or be drawn into offering, legal opinions. The same idea, then, applies to the dangerousness component of involuntary civil commitment statutes. The Washington statute uses the phrase “likelihood of serious harm” which, in many legal settings, would be taken to mean “more likely than not.” Such a definition would be extremely problematic because violence (to self or others) is a low-base-rate event, even if one accepts the premise that some persons classified under certain diagnostic categories under certain conditions have an increased risk of violence compared to other persons not similarly classified (e.g., Treatment Advocacy Center, 2003). In other words, to minimize the number of errors based exclusively on probabilities, it would be necessary to estimate that no one would engage in violence. In case the reasoning for that is not clear, let me explain. Let us assume that 1 out of 10 persons diagnosed with paranoid schizophrenia with a history of assault will engage in additional aggressive behavior compared to a rate in the general population of 1 out of 20 (these number are made up to illustrate the point). In other words, twice as many people diagnosed with paranoid schizophrenia are going to commit an act of violence compared to the group of people without such a diagnosis. Even given that, however, it is very unlikely that any individual in either group will engage in violence (1/10 = 10% for the schizophrenia group; 1/20 = 5% for the general population). Thus, estimating that no person in the schizophrenia group is going to be violent would mean being right 90% of the time whereas estimating that all persons are going to be violent would mean being wrong 90% of the time. Trying to figure out which one out of the 10 is going to be violent could mean being wrong 99% of the time (10% actual base rate of persons who will commit a violent act × 10% arbitrarily classified as being the person who will commit a violent act = 1% likelihood of classifying the right person). But that potential assessment fiasco is not even the main problem with dangerousness assessment in comparison to the realization that dangerousness is not (or at least should not be) a prediction of harmful conduct in the future (this is discussed at length by Schopp, 2001, pp. 215–229). This goes rather strongly against the conventional wisdom in civil commitment legal debates that tend to go back and forth on the validity of predictions of dangerousness. As Schopp notes, however, “according to the statutes and ordinary language, a dangerous person is one who currently has the property of exposing himself or others to risk or peril of harm or

520

Eric Strachan

injury” (p. 216, emphasis added). It may make sense to predict that the person will continue to expose him or herself or others to risk or peril of harm or injury but it is not necessary to predict actual harm or injury in the future. Think back to the hypothetical risk percentages presented above. It may be the case that the citizens of Washington or another state decide that a 10% risk of violence for persons diagnosed with schizophrenia is too great compared to a population risk of 5%. This may be true even though an evaluator would not predict that the person is likely to be violent (the evaluator would, in fact, predict the opposite). Instead, the citizens of the hypothetical state are legitimately declaring that the person is too dangerous because their risk of violence (10%) exceeds a threshold (5%) that has been defined as legally meaningful (assuming that such a definition has taken place). Thus, assessing dangerousness is not about predicting violence but rather assessing the factors that expose an individual or others around that individual to unacceptable levels of risk of harm or injury. A person’s actual history of violent acts or threats while (and as a result of being) psychotic or depressed should be the relevant evidence, then, without predictions of violent behavior at some vague point in the future. That is, the evidence should be in the form of “Person A recently engaged in these behaviors while responding to his beliefs/hallucinations/negative emotions and those beliefs/hallucinations/emotions are still present in the person.” The evidence should not be in the form of “Person A has the characteristics of Group X in which 15 out of 100 members committed an act of violence within 6 months of evaluation.” Schopp (2001) points out that attributing the characteristics of a group to individual members of that group embodies the fallacy of division. As an example of that fallacy, it seems absurd to say that my friends from high school went to 10 different colleges and universities, Damian is a friend of mine from high school, therefore Damian went to more than 10 different colleges and universities. But that is the type of inference sometimes drawn by forensic evaluators in civil proceedings. None of this, of course, yet answers the question of what constitutes “substantial risk.” And, again, this is a question that clinical evaluators should not be answering in legal proceedings. Clinical experts should provide expertise on clinical matters, including how much impairment a person demonstrates, and leave the normative judgments, including how much impairment justifies involuntary treatment, to the lawyers (who, in turn, should be practicing law that reflects the will of the citizenry; see Schopp, 2001, pp. 249–267). To summarize, then, an effective evaluation for involuntary civil commitment will include a functional assessment of mental illness such as the one described above. It is then necessary to show behavioral evidence of dangerousness and, in many jurisdictions, a connection between the dangerousness and the mental illness. The dangerousness evaluation, however, will not be a prediction of future harm, but a description of risk that will serve the legal decision maker in determining whether that level of risk is sufficient for involuntary treatment. In no case should the clinical expert be providing opinions as to whether the mental illness meets the legal criteria for sufficient impairment or whether the level of risk is sufficient for a person to be considered dangerous for statutory purposes.

Civil Commitment Evaluations

521

Evaluation Relevant to Decisional Capacity The reason for dividing out guardianship, treatment decision-making, and PADs from involuntary civil commitment—despite their differences from each in terms of context—is that they all share the characteristic of requiring evidence of decisional incompetence in order for a legal determination to be made. As noted above, involuntary civil commitment in places such as Nebraska does not allow the inference that a person is an incompetent decision maker. And unlike the definition of mental illness or impairment in involuntary civil commitment, there has been extensive consideration of the requisite criteria for mental impairment in decisional competence cases. This is not to say that the question of what constitutes a competent decision has been satisfactorily answered from an empirical psychology perspective, but there are legal criteria that refer to certain (at least pseudo-) psychological capacities that are necessary for competent decision making. Briefly stated, a competent decision is one that reflects understanding, rationality, and appreciation, along with the capacity to express a choice (Grisso & Appelbaum, 1995, 1998; Saks & Behnke, 1999; Vollmann, Bauer, Danker-Hopfe, & Helmchen, 2003). Taking each of those separately, the “understanding” criterion refers to the capacity to understand the information relevant to making an informed decision. “Rationality” refers to the capacity to manipulate that information rationally (i.e., to reason about it). “Appreciation” refers to the capacity to relate the information to one’s own circumstances. And “expressing a choice” refers to the capacity to indicate a preferred course of action and stick to it absent relevant changes in the context of the decision (i.e., not arbitrarily changing the decision). In guardianship and treatment decision-making, the criteria directly reflect the legal question at hand. In the case of PADs, it is important to establish that the person is competent at the time of completing the PAD because concerns about decisional competence “may cast doubt on the validity of PADs and reduce the likelihood that they will be honored” (Srebnik et al., 2004, p. 240). Although it is certainly possible to develop one’s own operationalization of each of the legal criteria, there are three standardized assessment instruments that were developed to address questions of competence: the MacArthur Competence Assessment Tool for Treatment (MacCAT-T; Grisso & Appelbaum, 1998), competence to participate in clinical research (the MacArthur Competence Assessment Tool for Clinical Research; MacCAT-CR; Appelbaum & Grisso, 2002), and competence to develop a PAD (the Competence Assessment Tool for Psychiatric Advance Directives; CAT-PAD; Srebnik et al., 2004). Each of these tools was developed to reflect the understanding, appreciation, rationality, and expressing-a-choice criteria. I am not going to review the clinical research question because of its specialized nature, but the MacCAT-T and CAT-PAD are likely to be influential in empirically-supported civil forensic assessment efforts. The MacCAT-T is a proprietary instrument that was built from a longer set of research instruments with clinical realities in mind (e.g., it needed to be relatively quick to administer). In assessing “understanding” of disorders, treatment, and treatment disclosures, the MacCAT-T provides a framework for relating information

522

Eric Strachan

generally relevant to a psychiatric diagnosis and its treatment. That information can then be tailored to the individual being evaluated. That is, the evaluator establishes the diagnosis, features of the diagnosis specific to the person, and prognosis. The evaluator then asks the person to “explain in [his or her] own words what [the evaluator has] said about” the diagnosis, treatment options, and risks and benefits. A score of 0, 1, or 2 is then generated based on the ability of the person to recall and discuss the information (generally, 0 for no understanding, 1 for some, and 2 for complete). “Reasoning” is assessed using questions focused on why the person might choose one treatment over another, the consequences of the choice, and the general logical consistency of the choice. “Appreciation” is measured by the extent to which a person agrees with various assessment made about them such as diagnosis, severity, and symptoms. In each of the latter cases, a 0–2 scale is used with 2 reflecting good reasoning or appreciation and 0 reflecting poor reasoning or appreciation. There is no cutoff score for a competent versus incompetent decision, of course, given that such a determination is a legal one, but these data could add to a good functional description of the overall clinical picture. Saks and Behnke (1999) have provided an excellent review of the materials and their development, and I will not reproduce their entire effort here. I do, however, want to mention their general concerns about the instrument because it applies to other attempts at assessing competent decisions. Those concerns boil down, first, to the empirical question of whether the cognitive capacities that are assessed are actually necessary (or even commonly used) for competent decision making, and, second, to the question of whether rejecting what doctors believe is tantamount to incompetence. The former is a call for more consideration of, and research regarding, a psychologically sophisticated understanding of decision-making that may or may not comport with established legal criteria (which, of course, were not developed based on psychological research). The latter is a more complicated question that, in its extreme, runs into the question of how well mental health, mental illness, and mental health treatments are understood by professionals of any ilk. The CAT-PAD (Srebnik et al., 2004) is a close cousin to the MacCAT-T but it differs in at least two ways. First, the CAT-PAD takes a two-stage approach. That is, people have to demonstrate that they understand, appreciate, and can reason about whether to complete a PAD. Then they have to demonstrate that they understand, appreciate, can reason about, and can express a choice regarding their particular treatment decisions. Second, there are some differences in items, especially regarding generating consequences for everyday life of the particular treatment decisions. Again, such a standardized instrument is useful is assessing competence but, given its heritage, is likely to embody the same set of concerns developed by Saks and Behnke (1999; their review preceded development of the CAT-PAD). In summary, each of the legal questions in this section is related to understanding information, appreciating that information in one’s own current circumstances, being able to make reasoned judgments about the information, and being able to express a choice. There are no hard-and-fast rules for assessing these criteria, but there are some standardized instruments that are gaining popularity. Concerns exist

Civil Commitment Evaluations

523

regarding the ultimate validity of these instruments, and perhaps even the validity of our current understanding of competent decision making. But specifying measurable legal criteria is actually an advance in these areas compared to assessment for involuntary civil commitment. I turn, now, to a discussion of bringing these areas closer together, conceptually and practically.

An Alternative Approach to Involuntary Mental Health Interventions Psychiatry has always been bound up with state control of social deviance (Boyle, 2002: Foucault, 1971; Szasz, 1974), but state control of social deviance has a history much longer than psychiatry. In 16th-century Paris, for example, beggars were arrested and forced to work in the city sewers while chained in pairs (Foucault, 1971). But beggars were not the only victims of this forced labor. Poor scholars, unemployed workers, and impoverished students were also among the sewer chain gangs. During approximately the same period in England, poor citizens and vagrants were punished for their misfortune and often kept in “houses of correction.” Within and among these groups were persons who most certainly would have qualified as “mentally ill” had such a concept existed at time. But pre-Enlightenment, no such distinctions were made among the social deviants (Stavis, 2000). Whether one was unemployed, physically disabled, insane (in the colloquial use of the term), or bent toward public drunkenness, it was assumed by many that corruption of the soul, demonic possession, or other magical interlocutors (e.g., a curse) were to blame (Foucault, 1971).2 Summing up his view on this process of putting social deviance in the hands of medical professionals, Stavis (2000) noted that “It was the Enlightenment, and philosophers and scientists of that age postulated that mental illness was a disease and therefore those suffering with it were properly deserving of government assistance. It was a political innovation for government policy to accept the new science and develop policy and funding to ameliorate mental illness” (p. 162). That account of the transformation from social deviance as moral weakness to mental illness, however, is somewhat oversimplified. Stavis captures the idea that governments were establishing a relatively new obligation to care for those who could not or would not care for themselves, but he takes for granted the notion that medicine (with its disease-based understanding of dysfunction) was necessarily relevant to that process. As Scull (1979) has convincingly demonstrated, the growth of the asylum system and the medicalization of madness should not be seen as “twin processes in a progression towards more humane and scientific treatment of the ‘mentally ill’” (Boyle, 2002, p. 18). There were important reasons that the medical model came to dominate the debate on madness that had little to do with humane treatment and science. Boyle (2002) has provided additional details that help explain the shift in perceptions about madness during and since the Enlightenment and the growth of the medical model of mental illness. According to Boyle (see also Foucault, 1971), conceiving madness as disease was the final (but still largely unsuccessful) maneuver in the attempt to solve the practical problems faced by “poor relief” programs developed in the spirit of the Enlightenment. That is, poor relief programs were often laxly

524

Eric Strachan

administered which tended to encourage poverty and idleness rather than relieving it. As the costs of such programs began to increase there was a general call for some reliable method to discriminate those who actually needed assistance from those who were malingering. Before the disease idea took hold, however, separating the needy from the freeloader was accomplished by making poor relief somewhat unattractive. As Boyle notes, Institutions, in the form of workhouses, came to be seen as the ideal solution. Their unattractiveness would deter the able bodied, while a disciplined regime within them would prepare those not so deterred for a life of industrial labour. If this was clearly out of the question, then the discipline would do no harm. (p. 19)

During that period, there was little interest in further discriminating the needy into groups (“segmenting deviants” as Boyle puts it; p. 20). In part, this was due to the fact that the population within the workhouses was fairly small and the only criterion of real interest was deserving versus undeserving. However, as the workhouses grew and the staff attempted to be more efficient at separating out the able bodied from the nonable bodied, insanity started to stand out from “the previous inchoate mass of deviant behaviours so that it was seen as a distinct problem requiring specialized treatment in an institution of its own” (Scull, 1979, p. 36). Boyle writes, This transition, however, involved much more than the compulsory construction of state asylums. It was accompanied by the transformation of the term “insanity” from a “vague, culturally defined phenomenon afflicting an unknown but probably small, proportion of the population into a condition which could only be authoritatively diagnosed, certified and dealt with by a group of legalised experts.” The segregation of those labeled insane from society in general and other deviants in particular was therefore contemporaneous with the growth of medical influence over this population and with the emergence of the new specialty of psychiatry. (pp. 17–18; citations omitted)

Despite the growing trend toward isolating the insane, medical dominance in the world of madness was by no means a certainty in the mid-18th century. For example, in England, the 1744 Vagrancy Act was the first to specifically single out those “who by lunacy or otherwise are so far disordered in their Senses that they may be dangerous to be permitted to go Abroad.” However, the power to detain a suspicious vagrant was given to any citizen, who then would turn the person over to two justices of the peace. Those justices would determine the fate of the detainee (including possible institutionalization) without any input from the medical community at all. In other words, “lunacy” at that time was seen as a legitimate reason to detain suspicious people, but it was not seen as a medical issue. Ultimately, the reasons that physicians came to be seen as experts on insanity are many and complex. One glaring omission in the list of reasons, however, was scientific achievement. In this section, I argue that categorical classification of human behavior has done little to illuminate the mystery of disturbed (or disturbing) behavior and that a new approach is very much needed. I agree with Pilgrim’s contention that “psychiatrists have claimed a special knowledge about madness without providing, to this day, a single shred of evidence to support the assertion that ‘insanity is purely a disease of the brain’” (1990, p. 229). The victory of medicine in the madhouse was one of political influence much more than scientific advancement.

Civil Commitment Evaluations

525

It is worth noting that although it is typical to associate the medical model with biological theories of pathology and treatment, biological perspectives are not a necessary part of the model. As Spaulding, Sullivan, and Poland (2003) point out, the medical model has survived dominance by psychoanalysis as well as biological psychiatry. By challenging the credibility of the medical model of mental illness, then, I do not intend to dispute the notion that biology and physiology play a significant role in the production of behavior (both normal and abnormal). As one group of researchers has noted, “acknowledgment of the biological components of mental illness does not imply that mental illness sorts itself into the categories of medical model nomenclature or that services should be provided by medical professionals in medical treatment settings” (Spaulding, Poland, Elbogen, & Ritchie, 2000, p. 139). In fact, acknowledging that behavior is the product of biology does not even mean that abnormal behavior is the product of abnormal biology. A brain that is functioning as it should may still, for any number of reasons, fail to generate behaviors that are adaptive in a given situation. What makes the medical model distinct from other approaches, then, is not biology, but rather the idea that insane behavior sorts itself into discrete categories (e.g., schizophrenia and depression) that reflect naturally co-occurring patterns of signs and symptoms (e.g., hallucinations and delusion for schizophrenia; sad mood and low energy for depression). In addition, medical model practitioners assume that each set of signs and symptoms arises from some common underlying cause (e.g. “chemical imbalances”) but that different sets have different underlying causes. Of course, when biological processes are emphasized, these naturally occurring patterns are assumed to be caused by diseased brains (i.e., brains that have discrete structural or functional abnormalities). Thus, to criticize the validity and applicability of the medical model is to criticize the validity of its method of classifying and explaining behavior (Boyle, 2002; Caplan, 1996). If it is true that the medical model is untrue, unscientific, or even just unproven as of yet, the practical implication is that the categories it relies on can not and should not be used as explanatory mechanisms. Thus, to the extent that the medical model is invalid, it is circular at best (incoherent at worst) to say that “John believes his feet are being electrocuted because he has schizophrenia” or that “Jane’s decision-making ability is impaired because of her bipolar disorder.” Among other reasons, medical dominion over madness and social deviance was influenced by the nature of the competition. Among all the relevant players—laypersons, physicians, philosophers, theologians, and others—who were either pursuing the financially lucrative business of running madhouses or pursuing an academic understanding of madness, the outcome was skewed in favor of physicians because of the natural co-occurrence of disturbing behavior and bodily disease (Boyle, 2002). Despite the fact that many such co-occurrences were merely by chance, the traditional role of physicians as helpers gave them an advantage that was again independent of any particular madness-related expertise. As an example, both proponents and opponents of medical model-based mental illness cite the discovery of T. pallidum (the bacterium responsible for syphilis) as critical in the rise of modern medical theories of abnormal behavior. Because tertiary syphilis was often associated with dementia and behavioral symptoms that landed victims in asylums, and because syphilis could

526

Eric Strachan

be successfully treated in its earlier stages with somatic therapies, psychopathology researchers began to hypothesize that all abnormal thoughts and behaviors might be the product of diseased brains amenable to medical treatment (hence the citation by proponents of the medical model). Opponents of the medical model, however, cite the case as the exception, not the rule. While conceding that tertiary syphilis is an example of mental illness caused by a diseased brain, they indicate that further successes have been few and far between in over 100 years of intensive research on a variety of disorders (Claridge, 1990; Heinrichs, 1993; McGuire & Troisi, 1998; Pilgrim, 1990). Nevertheless, with very few scientific victories in hand, 19th-century physicians parlayed their professional status and personal influence into legislation granting them “a mandate from the State to define and manage certain forms of deviance as illness” (Pilgrim, 1990, p. 211). Whatever one thinks of the current state of biological psychiatry, it is clear that the reins of power in managing social deviance were passed to psychiatry long before there was any scientific evidence to justify that decision. The lack of repeatable scientific discovery in medical model psychopathology remains a problem to this day despite the general impression in the lay population (and some scientific and clinical communities) that the medical model is the correct lens through which to view the domain of bizarre and disturbing behavior. As one experienced neuroscientist (who spent his 40-year career investigating the biological roots of behavior) has written, “contrary to what is often claimed, no biochemical, anatomical, or functional signs have been found that reliably distinguish the brains of mental patients” (Valenstein, 2002). Unfortunately, even a brief summary of all the critiques of the medical model and the research it has generated would be difficult. I will address some of the specific critiques below, but space precludes consideration of many other valuable insights gained by medical model critics (see Boyle, 2002 for a rigorous and comprehensive critique of schizophrenia research; Breggin, 1991 for a general, if somewhat emotional, critique of biological psychiatry; Caplan, 1996 for a critique of the current diagnostic manual and the methods used to develop it; Chua & McKenna, 1995 for a critical analysis of schizophrenia-related brain research; Heinrichs, 1993 for a critical review of the premises behind “a neuropsychology of madness”; Kirsch & Lynn, 1999 for a review of the placebo effect in antidepressant medication; Kutchins & Kirk, 1997 for a critique of the process behind categorical classification of deviant behavior; McGuire & Troisi, 1998 for a discussion of the problems generated by conceptual pluralism in psychiatry; Nylund, 2000, for a critique of current ADD/ADHD research). To summarize this section, the relevance of the medical model of mental illness to the exercise of mental health interventions is tenuous scientifically but firmly entrenched practically. As I have attempted to lay out, state control of social deviance shifted from punishment to assistance in the wake of the Enlightenment (i.e., there was a shift from using the police power to control social deviance to using to parens patriae authority). The result of this shift was, as William Blackstone (1765) wrote, a new view that the government should serve as “the general guardian of all infants, idiots, and lunatics,” and as the superintendent of “all charitable uses in the kingdom” (p. 47). The shift in social control methods was accomplished in part by creating institutions for the express purpose of providing relief to the

Civil Commitment Evaluations

527

poor and disadvantaged while discouraging the abuse of freeloaders. To prevent dramatic expansion of the poor-relief systems, however, administrators began to require finer distinctions between the deserving and undeserving and between the able bodied and not-able bodied. This created many questions about the nature and causes of human behavior, and those questions were debated among a variety of scholars from different disciplines. In the end, however, the growing field of medicine and its physician practitioners declared madness to be a disease and won the political mandate to manage some forms of deviance as illness. Unfortunately, at the time (and even today) there was little reason to believe that physicians had any special insight into the problem of madness as one form of social deviance. However, the scientific weaknesses of medical model concepts of mental illness do not mean that no concept of mental illness will adequately inform a cohesive system of parens-patriae-based interventions. The purpose of spending time examining the medical model of mental illness is to provide ammunition for changing the focus of the debate in police power and parens-patriae-based mental health interventions, especially civil commitment. Currently, the civil commitment debate centers around how to deal with mentally ill individuals who do not wish to receive the treatment that clinical “experts,” families, or the state believe a person needs. Evidence of this focus can be found in the vast literature dedicated to fleshing out the relationship between involuntary psychiatric treatment and the informed consent doctrine that typically precludes involuntary medical treatment (Janus, 1997; Schopp, 2001; Winick, 1997). In discussing the fact that those with physical illnesses typically cannot be treated against their will, Winick (1996) has noted, The differential approach that those with mental illness are subjected to appears largely to be based on the assumption that the effects of mental illness impair decision-making capacity in ways that prevent those with mental illness (but not others) from satisfying the requirements for informed consent. This assumption reflects 19th-century thinking about mental illness, which was based on the belief that mental illness destroys decision-making capacity. Under this conception, those with mental illness were regarded as globally incompetent— cognitively impaired in every area of functioning—in a way that was durable, probably lasting a lifetime. One of the most significant contributions of [recent empirical research] is that [the] findings directly refute these assumptions [p. 140].

In other words, the medical model understanding of mental illness and treatment need—which is long out-of-date but still heavily entrenched in the legal setting—may not have the kind of substantive meaning behind it that is required to sustain a useful system of involuntary interventions. More important, the focus on medical-model notions of mental illness may actually be preventing the development of alternative lines of research and policy with greater long-term promise (Poland, Von Eckardt, & Spaulding, 1994). Going back to Winick (1996), though, the assumption on the part of those seeking involuntary treatment for another is that the potential patient, because of her mental illness, lacks the capacity to make reasonable choices about her mental health care (and perhaps her life in general) and therefore the choices should be made for her. The treatment recommendations, of course, are almost invariably based on the medical model approach to mental illness. Thus, the current system seems to be structured

528

Eric Strachan

around the question of whether some individual has a mental illness, as that term is currently defined by medical model practitioners. There is also some consideration of whether the person is taking sufficiently good care of herself (e.g., Is she suicidal? Does she have a safe place to live and enough to eat?), but there is a bias toward assuming that whatever problems the person is experiencing are attributable to her mental illness. It is taken for granted that medical model interventions are going to be helpful across the board. Poland et al. (1994) propose that classification of atypical functioning and social deviance into discrete categories of disease (viz. the DSM-IV) is an irremediably flawed method because the phenomena are simply not discrete categories. Stated briefly, these authors contend that: DSM constitutes a faulty conceptualization of the domain of psychopathology and … interferes with optimal pursuit of clinical and scientific purposes. Indeed, there has been a decade of widespread complaint regarding DSM, but such complaint has been largely ineffective in stemming the impact of the approach. One reason for this ineffectiveness is the absence of a well-developed alternative that can play the roles currently served by DSM [p. 235].

According to Poland et al. (1994), a psychopathology classification scheme ought to accomplish two major goals. The first is enhancing clinical effectiveness and the second is promoting scientific research programs (both basic and applied). One way clinical effectiveness is enhanced is by reducing clinical uncertainty (i.e., by answering questions such as what is wrong, what treatment is required, and what the prognosis is). To promote scientific research, a relevant classification scheme ought to spur productive and acceptable research. According to these authors, however, DSM accomplishes none of these purposes. They develop a coherent argument that the diagnostic categories are uninformative and irrelevant with respect to the problems that clinicians face, that the research programs based on it are unacceptable because the diagnostic criteria are unquantified, protoscientific, and massively heterogeneous, and that productive research is hindered because the signs and symptoms identified by DSM are not nomologically related to etiological and pathological processes. This last point emphasizes the notion that DSM categories are not “syndromes with unity” and that such syndromes may not exist to be discovered (i.e., the classification scheme is irremediably flawed). Hence, this is an unpropitious method for studying and treating psychopathology. Poland et al. (1994) conclude: As we see it, there is a need for an alternative approach to classification that embodies a better model of scientific rigor and a more accurate theory of the domain of psychopathology. Such an alternative needs to place less emphasis on clinical phenomenology in classification and give more balanced attention to processes at all levels of analysis. And it needs to get a handle on the massive interindividual variation with respect to attributes and functioning, as well as their evident context sensitivity. Furthermore, it is especially important that an alternative be based on a more intimate relationship with basic science than is DSM [p. 255].

This is only a brief summary of the arguments that Poland et al. (1994) develop. The relevance to the present chapter, though, is this: The domain of psychopathology

Civil Commitment Evaluations

529

is unlikely to be fully (or even partially) explained using a DSM-based approach to classification because the clinical phenomenology probably does not exist as “syndromes with unity” (or “natural kinds,” in the language of philosophers). Thus, any work (including legislation and judicial proceedings) based on DSM-derived conceptions of psychopathology is likely to be substantially and irremediably flawed. But as Poland et al. note, a well-developed alternative is required if DSM (and other artifacts of the medical model of mental illness) are to be replaced. Replacing Medical Model Involuntary Interventions The question, then, is what might an alternative be and how might a revised system be structured? Because of its dependence on medical model notions of mental illness, and based on the arguments advanced by Schopp (2001), I argue that the institution of civil commitment could be done away with in favor of a system of interventions that focus on whether or not individuals are competent to make self-regarding decisions. Such a system would be structured much like the current system of guardianship in most states in which a court “may appoint a guardian if it is satisfied by clear and convincing evidence that the person for whom a guardian is sought is incapacitated” (Neb.Rev.St § 30-2620). The central question of such a system would not be whether a person has a clinically-defined mental illness and therefore needs medical model treatment, but rather whether the difficulties that a person is facing are due to the inability to make reasonable decisions in important settings. The Question of Criteria. As I have already mentioned, the history of involuntary interventions, and especially inpatient civil commitment, reflects a tension between paternalistic and libertarian concerns with everyone basically accepting the medical model of mental illness as a given. On the side of paternalism is the feeling that adults disabled by serious mental illness have a right to treatment even if they cannot grasp the need for it in their own (presumably diseased) minds. On the libertarian side is the feeling that individual liberty is too precious a right to be left in the hands of clinicians practicing an imprecise science based on constructs with dubious reliability and validity. As a result of the push and pull of these forces, civil commitment in all U.S. jurisdictions requires that the potential committee be mentally ill and dangerous to self or others. On the surface this appears to be a sensible arrangement. We do not want to interfere in the lives of people simply because they are odd or disagreeable. Candidates for civil commitment must have a bona fide mental illness (or at least a bona fide mental problem) and must—in addition to the mental illness—be a threat to the health and safety of the public or of themselves. The criteria for civil commitment fail, however, because the statutory definitions of mental illness do not inform us as to what specific impairments must exist, how a court is to know that they exist, and how much of an impairment is necessary to justify intervention. The problem, in other words, is that civil commitment statutes do not help legal decision makers reliably discriminate between those eligible for civil commitment and those not, especially in the hard cases. According to Schopp (2001), part of the solution to this problem rests in grounding the criteria for any involuntary intervention in the justification that is used to support such an intervention.

530

Eric Strachan

Parens patriae interventions, by definition, are justified by reference to the state’s power to care for those who are unable to care for themselves. Schopp (2001) writes, The justification for parens patriae intervention rests on the state’s responsibility to protect and promote the well-being of those who lack the capacities needed to make and communicate reasoned decisions regarding their own interests. Incompetence provides the central justification for such intervention because the individual lacks the capacities of practical reasoning that would enable him to direct self-regarding decisions through the exercise of minimally adequate comprehension and reasoning and qualify him for sovereign discretion in the nonpublic jurisdiction [p. 11].

The logical conclusion is that the criteria for parens patriae interventions should reference impairments in one’s capacity to make reasonable decisions in self-regarding matters and the disposition should include surrogate decision making. Other commitments are justified by reference to the state’s police power which obligates the government to take reasonable steps to protect the safety and welfare of the general public. Regarding those interventions, Schopp (2001) writes that, The justification for [involuntary civil commitment] through the mental health system under the police power requires evidence that the individual lacks the capacity to participate in the public jurisdiction as a responsible subject of the criminal justice system and that he poses a risk to others sufficient to justify coercive intervention. The appropriate form of intervention is that which is likely to prevent such a severely impaired individual from harming others [p. 25].

Thus, a police-power-based mental health intervention would be justified to the extent that the person involved is impaired in the ability to conform his or her behavior to the demands of civil life. This is similar to, but again more specific than, the current notion of dangerousness to others. To supplement his discussion of justifications, Schopp (2001) introduces a useful framework for understanding how definitions of legal mental illness (LMI) might optimally be constructed based on his analysis. According to Schopp, persons are not eligible for a particular legal status if and only if: 1. They suffer impairment of psychological capacities 2. Rendering them unable to competently perform 3. The psychological operations necessary for that legal status.

In this framework of LMI, the legal status in question is phrased positively; an example would be “competent to make self-regarding decisions.” Clause 1, then, is a specification of the kind of impairment that is necessary to negate eligibility for the legal status. Ideally, the psychological capacities would be stated in terms that are more specific and more meaningful than “mental disease” or “mental illness” (i.e., the current language). Clause 3 refers to the particular psychological operations that form the basis for the legal status (i.e., the criteria of eligibility for that status). In between is Clause 2 which establishes that the Clause 1 impairment must hinder the Clause 3 operations such that they fall below “some threshold of competence established by lawmakers and evaluated by legal decision makers” (Schopp, 2001, p. 46).

Civil Commitment Evaluations

531

In the realm of parens patriae involuntary interventions, then, a policy regarding involuntary treatment might start with a declaration such as, Individuals are to be deemed incompetent if and only if: (1) They suffer impairment of the capacity to understand, reason, appreciate, and express a choice, (2) rendering them unable to competently (3) make decisions about their own life.

Having found that all three of these obtain, the court would then order a substitute decision maker to be appointed and would lay out the scope of the decision maker’s authority. Some decision makers might be given authority over all self-regarding decisions, whereas others might have a very limited decision making role. And although the content of Clauses 1 and 3 would be different for police power interventions, and hence the ideal disposition might also be different, the basic principles are the same. My argument, then, is that Schopp’s (2001) framework for understanding legal mental illness and for implementing involuntary interventions is better than the existing system in its specification of criteria that are rooted in the underlying justification for the intervention itself. I would also argue that Schopp’s framework allows for the maximization of paternalistic and libertarian interests in a way that the current system (and the current debate) does not because it allows for the inclusion of criteria based on scientifically valid psychological constructs that are or could be objectively assessed. This forces the realization, however, that such a system cannot practically be implemented until we do away with a good deal of baggage from the history of mental health interventions and adopt a new agenda of research and policymaking that asks and answers a new set of questions. First, a system structured to be consistent within this framework would require a change from the current implicit reliance of legal decision makers on psychiatric categories of mental illness to inform the legal question of mental illness. I believe it is basically uncontroversial to suggest that everyone involved in mental health care would like to see adequate care made available for those who avoid and refuse care but who do so incompetently. Nothing about psychiatric diagnosis, however, informs the question of competence. Some argue, for example, that at least 40% of persons diagnosed with bipolar disorder and schizophrenia may lack insight into their illness and therefore might be making incompetent decisions regarding treatment. In addition, persons diagnosed with schizophrenia tend, again as a class, to demonstrate generalized cognitive deficits. But to speak about persons diagnosed with schizophrenia or bipolar disorder as a class does nothing to inform the question of whether a particular person diagnosed with schizophrenia is making an incompetent decision. To know whether a particular person is incompetent in her decision making means understanding generally what is meant by the term and then engaging in idiographic assessment to discover the particular person’s capacities. In other words, it means engaging in exactly the process that Schopp recommends and that was described in the assessment section above. The second piece of baggage that would need to go is the one that contains outdated psychological constructs. In the case of parens patriae interventions, for example, we would need to discard empirically unsustainable notions about decision-making, such as that human beings are utility-maximizing rational agents. Whether or

532

Eric Strachan

not utility-maximizing decision-making is a norm toward which we should strive as a species, it is demonstrably the case that human beings do not (as a class) make decisions based on such principles in most situations (see Hastie & Dawes, 2001, for a discussion of both sides of the issue). Instead, psychological assessments might focus on the components of decision-making such as attention, working memory capacity, executive functioning, reaction time, perception, etc. If these capacities are impaired, and if evidence exists of a history of poor decision-making, a court may be justified in inferring that a person’s decision making ability is impaired. In the case of police power interventions, evidence of abnormal responding to contingencies might help inform the question of retributive competence. Whatever the particulars might be, the net effect would be a major shift in the way involuntary treatment statutes are written. This has the potential, I believe, to shift the focus of attention away from unproductive lines of research and practice (such as searching for objective markers of diagnoses that have little established validity) toward approaches to behaviors that have a better chance of bearing fruit. In addition, such a system would bring together the various sides of the debate: patients would be granted self-determination to the extent that they have the capacity for it, clinicians could rest assured that no one who needed treatment was failing to get it (as a product of the structure of the legal system at least), clinical researchers could focus their efforts on understanding important psychological constructs, and legal decision makers could feel confident in the science behind the law. And the good news is, a shift toward involuntary treatment decisions being made only in the context of decisional incapacity seems both possible and highly relevant given that the vast majority of civil commitments are based on findings of grave disability (i.e. the inability to care for oneself), both with and without dangerousness, rather than dangerousness alone (Turkheimer & Parry, 1992). Case Example Taking all of this into account, let us go back to the case of John that started this chapter. John was arrested in a grocery store when he refused to stop opening boxes of aluminum foil and wrapping the contents around his arms, legs, and torso. He did not make any overt threats but the store employees indicated that he would not respond to anything they said to him and reported that he “seemed kind of menacing.” The police officers took him directly to the county hospital, rather than jail, and he was admitted to the psychiatric unit for observation and evaluation. As the initial observation period drew to a close, the attending psychiatrist requested an evaluation for possible civil commitment based on the notion that he was gravely disabled. The evaluator reviewed his medical chart (which had records from three previous stays along with some follow-up information) and briefly discussed the case with the psychiatrist. One of the important findings from that review was that on two occasions John had been committed, spent several weeks in an inpatient facility, and was eventually able to return to his apartment with access to services from the local community mental health center. Those two hospitalizations were more than two years apart. On the other occasion, however (which preceded the two just mentioned), John was released from the hospital without further care, continued to decompensate, and was found lying under a bridge suffering from malnutrition, dehydration, exposure to the elements, and injuries

Civil Commitment Evaluations

533

that appeared to be from a fight. To the evaluator, this suggested that John may decompensate without further care. This was further bolstered when the evaluator learned that John had been homeless for three days prior to the store incident. During the interview itself, the evaluator had a chance to administer the RBANS and noted deficits in immediate memory, delayed memory, and attention. When John was asked how he lost his apartment, he responded with the belief that his “landlord was part of the conspiracy to punish [him] for [his] sins.” When asked for more information on the conspiracy, John merely replied, “the writing is on the wall and through the wall, and I can’t cover it up.” In response to a question about how he was living on the streets, John stated that he tried to stay safe but that the beams could find him unless he was “shielded.” In terms of his thoughts about his hospital stay so far, John indicated that the “pills are part of the conspiracy.” When gently pressed for more information, he said “I know the pills are part of it because I can’t feel my heart, and my soul is long and outside itself. And then the beams don’t come anymore, but the punishment keeps coming.” When asked why he was being punished, John, in a fairly lucid nonsequitur, mentioned that he knew that his parents were worried about him and that he wished he did not have “this pain because there was a time when the future looked so bright. I was going to be someone. A doctor, maybe, like the doctors here. They look out for me.” He was unable to reconcile that statement, though, with his concerns about the pills except for stating that “doctors don’t always know what goes into their pills.” He also became somewhat agitated when asked to put those differing thoughts together. When asked why he did not want to go to the hospital voluntarily, John merely replied, “I already told you why.” John’s final response came to the question of what he thought would happen to him if he left the hospital without further care. He said, “I’m not the one in control, because my control is love and compassion.” In the report, then, the evaluator described all of relevant data in such a way as to suggest that John presented with symptoms (i.e., beliefs) of sufficient duration, intensity, and connection with impairment to warrant a diagnosis of schizophrenia, paranoid type. She also indicated that the beliefs were related to behaviors that put him at risk for further decompensation and disability (i.e., they were gravely disabling) because they generated resistance to both mental health care and the services that are critical to recovery from serious mental illness (e.g., housing, work, recreation). She went on to describe his functional cognitive impairments and the role such impairments might play in making it difficult for John to understand, appreciate, and reason about his situation. Knowing that competency is not the issue in civil commitment evaluations, this latter material was presented in support of a potential finding of grave disability. At no point did the evaluator give an opinion as to legal question of whether John was sufficiently impaired to warrant civil commitment, but that, ultimately, is what happened.

Endnotes 1. Although capacity and competence are often used interchangeably, I will use capacity to refer to the kinds of cognitive and behavioral abilities thought to underlie decision-making and execution. Competence, on the other hand, refers to having sufficient capacity for some decision-making and execution purpose. 2. It should be noted that biological, supernatural, psychological, and psychosocial theories of madness have co-existed throughout history with different adherents at different times. It would be inaccurate to suggest that there has been a simple progression from supernatural theories to modern bio-medical theories or that any of the theories has unequivocal support (see McGuire & Troisi, 1998).

534

Eric Strachan

References Aden v. Younger, 157 Cal.App.3d 662, 129 Cal.Rptr. 535 (Ct. App. 1976). American Psychiatric Association. (1994). The diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author. Appelbaum P.S., & Grisso T. (2002). The MacArthur competence assessment tool for clinical research (MacCAT-CR). Sarasota, FL: Professional Resource Press. Blackstone, W. (1765). Commentaries on the laws of England. Oxford: Clarendon Press. Boyle, M. (2002). Schizophrenia: A scientific delusion? (2nd ed.). Worcester, U.K.: Routledge. Breggin, P. (1991). Toxic psychiatry. New York: St. Martin’s Press. Caplan. P.J. (1996). They say you’re crazy: How the world’s most powerful psychiatrists decide who’s normal. Cambridge, MA: Perseus Publishing. Chua, S.E., & McKenna, P.J. (1995). Schizophrenia—a brain disease? A critical review of structural and functional cerebral abnormality in the disorder. British Journal of Psychiatry, 166, 563–582. Claridge, G. (1990). Can a disease model of schizophrenia survive? In R. P. Bentall (Ed.), Reconstructing schizophrenia, (pp. 157–183). Worcester, U.K.: Routledge. Foucault, M. (1971). Madness and civilisation: A history of insanity in the age of reason. London: Tavistock. Grant, D.A. & Berg, E.A. (2005). Wisconsin card sorting task (WCST). PAR: Lutz, FL. Grisso, T., & Appelbaum, P.S. (1995). The MacArthur Treatment Competence Study III: Abilities of patients to consent to psychiatric and medical treatments. Law and Human Behavior, 19, 149–174. Grisso, G., & Appelbaum, P.S. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals. New York: Oxford University Press. Hastie, R., & Dawes, R.M. (2001). Rational choice in an uncertain world. Thousand Oaks, CA: Sage. Heinrichs, R.W. (1993). Schizophrenia and the brain: Conditions for a neuropsychology of madness. American Psychologist, 48, 221–233. Humphrey v. Cady, 405 U.S. 504 (1972). Janus, E.S. (1996). Preventing sexual violence: Setting principled Constitutional boundaries on sex offender commitments. Indiana Law Review, 72, 157–214. Janus, E.S. (1997). Toward a conceptual framework for assessing police power commitment legislation: A critique of Schopp’s and Winick’s explications of legal mental illness. Nebraska Law Review, 76, 1–50. Janus, E.S. (2000). Sexual predator commitment laws: Lessons for law and the behavioral sciences. Behavioral Sciences and the Law, 18, 5–21. Kirsch, I., & Lynn, S.J. (1999). Automaticity in clinical psychology. American Psychologist, 54, 504–515. Kutchins, H., & Kirk, S.A. (1997). Making us crazy. New York: The Free Press. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). McGuire, M., & Troisi, A. (1998). Darwinian psychiatry. New York: Oxford University Press. Morris, G.H. (1999). Defining dangerousness: Risking a dangerous definition. Journal of Contemporary Legal Issues, 61, 61–101. Morse, S.J. (1987). Treating crazy people less specially. West Virginia Law Review, 90, 353–385. Nylund, D. (2000). Treating Huckleberry Finn: A new narrative approach to working with kids diagnosed ADD/ADHD. New York: Jossey-Bass. Pilgrim, D. (1990). Competing histories of madness: Some implications for modern psychiatry. In R.P. Bentall (Ed.), Reconstructing schizophrenia (pp. 211–233). Worcester, U.K.: Routledge.

Civil Commitment Evaluations

535

Poland, J., Von Eckardt, B., & Spaulding, W. (1994). Problems with the DSM approach to classifying psychopathology. In G. Graham & G. L. Stephens (Eds.), Philosophical psychopathology (pp. 235–260). Cambridge, MA: The MIT Press. Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), aff’d in part, modified in part, and remanded, 653 F.2d 836 (3d Cir. 1980) (en banc), vacated and remanded, 458 U.S. 1119 (1982), on remand, 720 F.2d 266 (3d Cir. 1983) (en banc). Randolph, C. (1998). Repeatable battery for the assessment of neuropsychological status (RBANS): Manual. San Antonio, TX: The Psychological Corporation. Saks, E.R., & Behnke, S.H. (1999). Competency to decide on treatment and research: MacArthur and beyond. Journal of Contemporary Legal Issues, 10, 103–129. Schopp, R.F. (1998). Civil commitment and sexual predators: Competence and condemnation. Psychology, Public Policy, and Law, 4, 323–376. Schopp, R.F. (2001). Competence, condemnation, and commitment: An integrated theory of mental health law. Washington, DC: American Psychological Association. Scull, A. (1979). Museums of madness: The social organization of insanity in nineteenth century England. London: Allen Lane: New York: St. Martin’s Press. Slobogin, C. (1996). “Appreciation” as a measure of competency: Some thoughts about the MacArthur group’s approach. Psychology, Public Policy, & Law, 2, 18–30. Spaulding, W., Poland, J., Elbogen, E., & Ritchie, A.J. (2000). Applications of therapeutic jurisprudence in rehabilitation for people with severe and disabling mental illness. Thomas M. Cooley Law Review, 17, 135–170. Spaulding, W.S., Sullivan, M.E., & Poland, J.S. (2003). Treatment and rehabilitation for severe mental illness. New York: Guilford. Srebnik, D., Appelbaum, P.S., & Russo, J. (2004). Assessing competence to complete psychiatric advance directives with the Competence Assessment Tool for Psychiatric Advance Directives. Comprehensive Psychiatry, 45, 239–245. Stavis, P.F. (2000). Why prisons are brim-full of the mentally ill: Is their incarceration a solution or a sign of failure? George Mason University Civil Rights Law Journal, 11, 157–202. Szasz, T.S. (1974). The myth of mental illness. New York: Harper & Row. Torrey, E.F. (1995). Surviving schizophrenia. New York: Harper Colophon Books. Treatment Advocacy Center. (2003). Violent behavior: One of the consequences of failing to treat severe mental illnesses. [Online]. Available: http://www.psychlaws.org/ BriefingPapers/BP8.htm [September 29, 2006]. Turkheimer, E., & Parry, C.D.H. (1992). Why the gap? Practice and policy in civil commitment hearings. American Psychologist, 47, 646–655. Valenstein, E. (2002). Blaming the brain: The truth about drugs and mental health. New York: Free Press. Vollmann, J., Bauer, A., Danker-Hopfe, H., & Helmchen, H. (2003). Competence of mentally ill patients: A comparative empirical study. Psychological Medicine, 33, 1463–1471. Winick, B.J. (1996). The MacArthur treatment compliance study: Legal and therapeutic implications. Psychology, Public Policy, & Law, 2, 137–166. Winick, B.J. (1997). The right to refuse mental health treatment. Washington, DC: American Psychological Association.

V Communicating Your Findings

537

20 Writing Forensic Psychological Reports Gregg J. Gagliardi and Audrey K. Miller

An entire course in forensic clinical psychology could be taught using report writing as a vehicle. Everything of importance to forensic psychological assessment culminates in the expert’s report. The purpose of this chapter is a practical one. The reader will find little theory here and just a brief review of the small published empirical literature on forensic report writing. Instead, our aim is to help the beginning forensic report writer start and complete respectable forensic clinical reports and, importantly, develop sufficient confidence and enthusiasm to write more reports. Our coverage is organized around five main themes: types or varieties of forensic report, overarching concerns or metaprinciples that motivate and guide the forensic report writer, the structure or anatomy of the forensic report, a review of the small empirical literature about forensic mental health report writing, and practical tips to help report writers overcome common problems in report writing.

Varieties of Forensic Psychological Report The term forensic psychological report is somewhat misleading. There are actually a variety of kinds of report. In reality, every communication a forensic psychologist makes to a party connected with a case is a forensic report. Although the present chapter focuses on the traditional written forensic report, much of what is said is applicable to these “other” kinds of forensic reports. Written forensic reports vary in length and content depending on the: (a) referring party (plaintiff, defense, judge, or commissioner), (b) venue (criminal, civil, or administrative), (c) jurisdiction (federal or state), (d) geography, and (e) the referral question(s). It is, therefore, impossible to provide a single set of guidelines that will work in every situation. Some venues (e.g., civil) may require that the report include ancillary documents, such as the professional’s publications, list of other cases in which the expert has been deposed or has testified, list of continuing professional education courses taken, and the fee for professional services rendered to the referring attorney. However, other venues (e.g., involuntary civil commitment) may require only that an examining expert file a petition that the respondent (patient in a civil commitment hearing) needs to be civilly committed and fill out a form (affidavit) in support of that petition. 539

540

TABLE 20.1

Gregg J. Gagliardi and Audrey K. Miller

Report Writing Resources

Domain Psychological reports

Forensic psychological reports General Criminal Juvenile Sexual offenders Personal injury Child custody/parenting

Reference Source Tallent (1993) Groth-Marnat (2006) Harvey (1997) Heilbrun, Marczyk, & DeMatteo (2002) Melton, Petrila, Poythress, & Slobogin (1997) Rogers & Shuman (2000; pp. 296–397) Rogers & Shuman (2005) Grisso (2005; pp. 107–119) Doren (2002; Ch. 8, pp. 180–184; Appendix C and D, pp. 217–227) Greenberg (2003) Benjamin & Gollan (2003; Appendix C)

For narrow referral questions such as competency to stand trial, short reports are customary, whereas for parenting evaluations or sexually violent predator evaluations, a brief report would be viewed as inadequate. In some parts of the country, local standards or customs may affect the length and content of the report, and practices regarding the content and length of forensic reports have undergone change over several decades and may continue to change. In the end, it is most important that the report writer know which legal and professional standards, and customary practices, apply for a particular report. The referring attorney can be of some help, but ultimately the writer must bear responsibility for knowing the relevant statutory law, pertinent case law, specialty practice guidelines, and local professional standards that apply. Table 20.1 lists resources pertinent to report writing standards and styles. The table is divided into two parts. Part one emphasizes the general literature on psychological report writing. Part two stresses that forensic psychological reports are a subtype of psychological report and that different forensic settings require somewhat different report formats. Several excellent books about psychological reports have been written. Tallent’s (1993) book on psychological report writing is the best known. Harvey’s (1997) article on improving the readability of psychological reports is also well worth reading. In 2006, an 81-page special section of the Journal of Clinical Psychology was devoted to psychological report writing and included an article by Ackerman on forensic report writing. One of the first multidisciplinary texts to address forensic psychological reports was Melton and colleagues’ classic handbook, Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (1997). This source not only discusses the special role of the report in legal proceedings but also includes 16 sample reports and commentary covering a variety of criminal and civil psycholegal questions. More recently, Heilbrun, Marczyk, and DeMatteo (2002) published

Writing Forensic Psychological Reports

TABLE 20.2

541

Primary Differences Between Clinical and Forensic Clinical Reports

Issue Who is the reader? Operative privilege Sources of data in the report Rule governing report disclosure Informed consent recipient(s) Purpose of the report Report writer’s attitude/tone Advocacy What the report addresses Expertise required

Clinical

Forensic clinical

Patient/Professional Patient–therapist Mostly self-report HIPAA Patient or guardian Help the patient Empathic, supportive For the patient Presenting problem(s) Clinical

Attorney/judge Attorney–client Multiple sources Statute/case law Attorney and patient Assist the attorney Impartial, objective For the expert opinion Psycholegal questions Clinical + forensic

Note: Adapted from Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50–57.

a larger casebook of 43 reports, covering 24 distinct psycholegal questions, which demonstrate cardinal principles of forensic psychological assessment. What is most striking about these model reports, written by veteran forensic specialists, is the rich diversity of their structure and format. Novel, useful ideas about how to structure forensic reports can be found within them. Table 20.1 also lists several sources on forensic report writing for specific legal venues. The latter references are especially worth consulting for those who anticipate practice in forensic subspecialties.

Overarching Principles that Guide Forensic Report Writing Clinical Versus Forensic Clinical Reports Table 20.2, adapted after the work of Greenberg and Shuman (1997), identifies 10 key differences that distinguish forensic reports from ordinary psychological reports. The most telling difference is the identity of the writer’s client. Whereas the clinical report writer usually works on behalf of the evaluee, the forensic report writer works for an attorney (or institution1). Most clinicians are unaccustomed to regarding the attorney as the client, which can grate against deeply held patient-centered clinical values. To be clear, the evaluee is the attorney’s client, not the evaluator’s client. The attorney is the report writer’s client. The fact that the attorney, not the evaluee, is the writer’s client has obvious impact on the report. First, the attorney, not the evaluee, pays for the report if one is written. Second, although the report is about the evaluee, it is written to assist the attorney and, more generally, to assist the court. Also, it should be borne in mind that attorneys request forensic psychological evaluations for many decidedly nonclinical purposes, including safeguarding their own professional interests (e.g., avoiding a malpractice lawsuit filed against them by a disgruntled client, avoiding an ethics complaint, or avoiding an appeal based on ineffective assistance of counsel).

542

Gregg J. Gagliardi and Audrey K. Miller

The fact that the attorney is the expert’s client likewise affects the operative privilege, a special legal right, exemption or immunity that controls the disclosure of information (e.g., psychological reports) to third parties. For the therapist, the applicable privilege is the therapist-patient privilege. The evaluee owns that privilege and HIPAA2 controls the disclosure of most patient information to third parties. For the forensic evaluator, information disclosures such as reports are usually governed by attorney-client privilege and discovery rules. Because the ground rules for forensic evaluations differ so markedly from those of ordinary clinical evaluations, obtaining informed consent is doubly important. Most evaluees believe that the forensic evaluator is an advocate working for them to help resolve their problems, including their legal problems. Most do not understand the limited legal purposes and goals of the evaluation report, what it may entail, or which rules govern the disclosure of the report findings to third parties. Consequently, forensic evaluators need to make a concerted effort, including carefully disclosing their informed consent procedure and any problems with its application in the written report, to assure the evaluee truly consents to the evaluation. Several important qualities of a genuinely helpful report are readily apparent if we place ourselves as writers in the attorneys’ shoes. First, a high quality report needs to focus on the psycholegal questions before the court and not the most socially compelling issues or the most pressing clinical matters. The evaluator must know well these technical psycholegal questions and their legal contours in order to address them in a report. An otherwise rich clinical report that fails to adequately address the crux psycholegal questions is unhelpful at best and harmful at worst. Finding and reading psycholegal definitions and standards (competency, sanity, etc.) is a fairly easy task, but merely ascertaining them is not enough to apply them or write about them in a report. The key words contained within these standards are legal terms of art that cannot be properly applied without first acquiring a foundational understanding of the legal doctrines that give rise to them and the manner in which relevant higher courts have chosen to interpret them. This foundational knowledge is usually acquired in specialized clinical training programs such as forensic tracks in clinical psychology graduate programs or postdoctoral fellowships in forensic clinical psychology. Although the referring attorney can be a helpful guide and educator, attorneys frequently have strong differences of opinion—and obvious partisan biases—about how to apply psycholegal standards. The report writer needs to be cautious about advice on psycholegal standards that comes from the referring attorney. It may be necessary to obtain an independent legal opinion. The best objective source of information about how to apply a psycholegal standard is the applicable statutory or decisional law. The West Publishing Company provides excellent resources for conducting this kind of inquiry. Although few evaluators have sufficient legal training to practice law, every evaluator needs to learn how the law has applied critical psycholegal standards, develop an appreciation of the nature and dimensions of legal controversies raised by the application of those standards, and know how those standards are applied in the jurisdiction in which the evaluator practices.

Writing Forensic Psychological Reports

543

Best Evidence Model of Report Writing Probativeness and information relevance comprise additional overarching considerations for the forensic report writer. Probativeness is the degree to which evidence proves or disproves an asserted fact; relevance is whether a particular fact matters to resolving the legal issues in the case. At the conclusion of a forensic evaluation, the writer is faced with a mountain of data that varies in its information value. Some data are essential and must be included to answer the psycholegal question(s); other data are partially relevant and their inclusion in a report may provide a background that promotes understanding. Still other data are untrustworthy or frankly irrelevant and must be discarded to both reduce distraction and prevent misunderstanding. Somehow, the evaluator must sift through this pile of information and decide what to include in the written report—but how? Here it is helpful to consider that a forensic evaluation conceptually parallels another fact-finding process, a trial. As the reader knows, the court wants the jury to consider only trustworthy, relevant information in reaching its decision. This legal doctrine is known as the best evidence rule. In its effort to help the jury, the law has adopted evidence rules to screen out inaccurate, unfairly prejudicial, and irrelevant data from the jury. Generally, the best evidence for the jury in deciding a psycholegal question is also the best evidence for both the evaluator to report and the consumer of the forensic report to read. Following the structural analogy between the forensic evaluation and a trial further, it is clear the forensic report writer needs a screening process (rules) for including or excluding (admitting or not admitting) a statement or fact (evidence) before offering it up in a report to support an opinion (finding). This is especially the case for psychologists and other mental health care providers who may have been conditioned to regard, and report as “facts,” fragmentary, distorted, and/or biased information from unverified records and oral reports. The first step in writing a report is to separate the information wheat from the chaff, which is basically an information quality control process. After this step is complete, the information load is greatly reduced, which enhances the accuracy of clinical judgment, simplifies the integration of the clinical findings into an opinion, and promotes a brief, well-organized report. One model for the evaluator to consider in screening facts is that embodied in the Federal Rules of Evidence (FRE) and their state counterparts. Learning even a small set of these evidence rules, and employing them as a flexible guide, is a good investment as it can help determine which information to include in a report and which to discard.3 Using this method, statements of fact would not be included unless they first pass a reasonably fair series of tests used by American courts to screen evidence. Although at first blush this may appear to be a daunting recommendation, applying evidence rules to a forensic report does not require becoming a legal expert on evidence or an attorney. It is a learning task that is well within the reach of the forensic clinical specialist. In practice, the idea is quite simple. It is most effectively applied as an editing tool after the first complete draft of the report has been written. As you review the first draft, imagine you are a trial judge tasked with ruling on the

544

Gregg J. Gagliardi and Audrey K. Miller

admissibility of each factual statement in your forensic report. Are there any objections to entering the alleged statement into evidence? If so, which side made them and on what grounds (i.e., according to what evidence rule)? Balancing the rights and interests of both sides of the litigation, would you as a neutral party, interested only in furthering accuracy, fairness, justice, and efficiency admit that statement into evidence, i.e., include it in your report?4 Accuracy The report writer’s first responsibility to the reader is to accurately reflect the state of knowledge in the field of psychology. This is a tall order, as it demands a candid, up-to-date appraisal of what the field of psychology, including clinical psychology, actually has to offer about the factual matters at issue in the case. The honest writer will inevitably recognize that for any given psycholegal issue, science and clinical knowledge provide only a partial or approximate answer to the question. The expert’s findings more often inform the fact-finder’s quest for the answer than provide the answer itself. It is therefore important that the report acknowledge deficiencies in the state of the science and in the state of clinical practice, where and when these arise in the report, even if this requires a footnote or appendices to explain them further. Acknowledging and disclosing deficiencies is particularly important to reporting findings from forensic and clinical assessment methods. Most psychological tests have not been normed on forensic populations and even those that have been normed on forensic samples usually have been normed on convenience samples, not national, stratified, random samples of key evaluee populations. Also, the reliability and validity of critical components of forensic assessment, such as third party interviews, has not been established. Although clinical psychology has made notable progress in assessing response styles on multiscale self-report inventories (e.g., MMPI-2 validity scales), yet to be developed is a method for assessing the response styles of collateral interviewees. Nor have forensic psychologists studied the reliability and validity of information contained in third-party records or developed and tested methods to enhance the accuracy of information gleaned from them. Facts Versus Inferences Statements contained in a report fall along a continuum of abstractness. It is essential that the writer clarify whether a statement is a fact, inference, or professional opinion. Failure to distinguish one from the other can result in needless confusion, misunderstanding, and unproductive legal wrangling. At one end of the fact-inference continuum are concrete matters the writer assumes to be facts, such as the evaluee’s age, what the evaluee said during an interview, or the evaluee’s score on a psychological test. At the other end of the spectrum are inferences, which are synthetic conclusions drawn in trying to make sense out of the facts. For the forensic psychologist, a common example of an inference is the evaluee’s subjective mental state (e.g., intent) or mental capacity at a legally relevant point in

Writing Forensic Psychological Reports

545

time. An ordinary clinical example helps clarify the distinction between “fact” and “inference.” An evaluee’s self-reported auditory hallucination is not a fact for anyone but the evaluee. For everyone else it is an inference. What is a fact is that the evaluee reported the experience of the hallucination to the evaluator. In general, the law distinguishes expert opinions from lay opinions by requiring that the subject matter of the opinion be beyond the “ken of the jury.” An expert opinion is, therefore, a special kind of inference that the law reserves for persons who qualify as experts. Several kinds of expert psychological opinion are routinely found in forensic reports, the most common of which are diagnoses and psycholegal opinions. Clinical formulations (evaluee’s personality traits, abilities, knowledge, intrapsychic dynamics, future dangerousness, social and occupational functioning, etc.) are also inferences or matters of opinion, not facts. One reason for delineating between facts and inferences is a duty to help legal readers understand and use information in the report. If an attorney wishes to appraise an expert’s opinion, this is best done by looking at the verity of the underlying facts upon which it is based, evaluating the expert’s reasoning, scrutinizing the expert’s knowledge, and considering the state of knowledge in the expert’s special field of expertise. However, if an attorney wishes to examine a factual assertion made by the expert, this may instead direct an inquiry into the credibility of the source of the fact (e.g., witness who made the statement, document that contained the statement, etc.) and/or the method by which the fact was acquired (e.g., the reliability and validity of a psychological test, interview technique, or clinical observation).

Communication Thomas Edison is alleged to once have said that if you can’t explain something to your paperboy, you probably don’t understand it yourself. This colorful remark speaks volumes about communicating with the audience of your forensic report—most often attorneys or judges unfamiliar with science, psychological science, clinical psychology, or forensic clinical psychology. It is important to remember that most attorneys were undergraduate majors in subjects emphasizing verbal abilities and skills such as political science, history, etc. Law school also emphasizes the development of verbal abilities, not scientific thinking, quantitative reasoning or analysis, or clinical skills. Unless an attorney specializes in mental health law or practices in an area of litigation that routinely involves mental health testimony, it is unlikely the attorney has had much experience working with mental health experts. The level of technical difficulty in a forensic report should be no greater than that in an average newspaper. In fact, writing the report as if it were a newspaper article, not a clinical report, is close to an ideal frame of reference. Jargon (e.g., “The evaluee adopted a passive-aggressive stance during the interview”) must be avoided. Technical or clinical terms should also be avoided but, when necessary for clarity, should be defined briefly in context or in footnotes. If this is not feasible, or if technical terms are frequent, the writer should consider adding terms and their definitions to a glossary appended to the end of the report.

546

Gregg J. Gagliardi and Audrey K. Miller

The length of the report should ordinarily be as short as possible. The writer must keep in mind the reader’s limited attention span, motivation, and memory. The longer the report, the more likely the reader will skim it instead of reading it. More than one young report writer has been dismayed, after spending hours writing a 30-page forensic psychological masterpiece, to watch attorneys jump to the last page and hurriedly read the conclusions or to hear a judge announce a “5-minute recess to read the expert’s report.” A longer report also will more likely contain inapt or unclear language that opposing counsel can use to “spin” the meaning of the writer’s statements. A concise report, on the other hand, is like a bullet or spear. It is far more powerful, it is much more difficult to attack, and it is far more likely that readers will understand it. It is also more likely to promote settlement of the case early in litigation. It is usually more difficult to write a short report than a long report. Most good short reports begin as longer first drafts that are trimmed and edited before assuming their final buff form. This is as it should be, as the goal of the first draft is to err on the side of over-inclusion, to leave out nothing of importance. Using the best evidence model as an editing tool can go a long way towards making the final report no longer than it needs to be. Unfortunately, forensic report writers rarely get quality feedback from consumers of their reports. Without such feedback, learning proceeds slowly, if at all, and it is easy for a writer to acquire an inflated sense of report writing skill. Extant studies (see The State of the Empirical Literature on Forensic Reports, p.554) provide general information about what forensic experts value in reports, but studies rarely provide feedback about the writer’s work and the way others appraise it. One solution to this problem on an individual level is to request feedback from the consumers of your reports. This is easily accomplished by enclosing a prepaid postcard evaluation form with the report to the referring party. Anatomy of a Generic Forensic Clinical Report Although a variety of styles and formats exist, forensic psychological reports usually include certain basic sections. Here, we discuss these, drawing attention to their most important features and to stylistic variations. Opening Forensic reports are customarily printed on professional or institutional letterhead. The first page contains key identifying information, most commonly the legal cause number(s), evaluator file number, date(s) of evaluation, date of the report, and the evaluee’s name, date of birth, social security number, and hospital number. The salutation and opening tone usually take one of two forms. For attorney-referred cases, the salutation follows that adopted in ordinary business correspondence. The tone is appropriately warm and friendly. If the evaluee has been referred by the court or by an institution, a more official salutation (e.g., “Your Honor”) is preferred and the tone is appropriately respectful.

Writing Forensic Psychological Reports

547

Warnings Warnings regarding for whom the report has been produced, its confidential nature, and intended readers may appear next, often in a typeface (e.g., bold or italic) that offsets this section from the remaining text. Such warnings are inappropriate for reports sent to the referring attorney, as the report is confidential and will not be shared unless and until the attorney and client decide to release it. Warnings most commonly appear in reports sent to general parties (courts, institutions) and public organizations wherein a danger exists that the report or its content could be inappropriately released to a third party. If the evaluator is concerned about the potentially harmful impact of a report on an evaluee or another person, this concern can be included in the warning. Reason for Referral This section of the report serves a simple, pragmatic function. It identifies how, why, and when the case was referred for evaluation. It, therefore, sets the stage for everything else that follows. It need not be long, but it does need to be clear, chronologically accurate, and legally precise. It is best to enumerate each referral question and state it as precisely as the law permits (e.g., “Attorney Jones referred the evaluee for an assessment of his competency to stand trial under RCW 10.77.060 pursuant to court order no. xx-xxx.xx.”) Synopsis Although it is an uncommon practice, the writer may report next a synopsis of the evaluation’s main findings. Reporting the bottom line first, known in journalism as the inverted pyramid style of reporting, confers advantages. Immediately disclosing the conclusions gratifies the reader’s need to know the bottom line and may provide dramatic relief. Once the conclusions are known, the reader can settle down and learn how and why the evaluator reached the conclusions. It also conveys an attitude of forthrightness that portrays the writer as an honest, frank professional who takes full responsibility for opinions and who is willing to get straight to the point rather than beat around the bush or soft peddle the findings. On the negative side, reporting the conclusions early may tempt hasty readers to stop reading the report. However, these may be the readers who will skim the report for the conclusions or read the final page of the report first. Alternately, a summary of the findings and opinions can be placed at the end of the report where it is usually found. Informed Consent Procedures Informed consent procedures are so important to forensic clinical evaluation that they warrant a special section in the report. The informed consent section may run only a few sentences, or it may occupy a whole paragraph or more depending on

548

Gregg J. Gagliardi and Audrey K. Miller

the circumstances. It is important that the writer disclose procedural details and the evaluee’s response to them. If the procedure required the evaluee to sign a consent form, this should be reported so that the reader knows if a signed form is on file. In some cases, attorneys may demand to inspect the form to gain a better understanding of what the evaluee was consenting to when the form was signed. It is especially important to document in the report any problems with the informed consent procedure such as evidence that the evaluee did not (or could not) understand it and steps taken by the evaluator to manage this problem.

Database/Missing Information/Caveats Full disclosure is a key feature of the database section of a forensic report. The database describes what information the evaluator considered (and did not consider) in forming opinions. It is obvious that many different kinds of data are potentially important to address a psycholegal question, but most of the time only a subset of that data is available to the evaluator. Records may no longer exist (e.g., childhood school records). Others may take too long to obtain (e.g., a veteran’s service records or combat records). Third parties may be reluctant or slow to release medical records. Collateral witnesses may refuse to be interviewed or perpetually may avoid being interviewed. It may not be possible to perform valid psychological testing if norms do not exist for the evaluee’s culture (e.g., sensory impaired, non-English speaking) or if the evaluee’s educational level or reading ability is too low. Most forensic evaluators simply list the data upon which they relied. This can be done in a long messy paragraph, but, if sources are numerous, it is preferable to organize them as a bulleted list. Listed items should clearly identify the written source or, in the case of oral interviews, the name of the interviewee, the date, and the time spent during the interview. References to psychological testing need to state the full name of the test, not its abbreviation, and briefly explain the test’s purpose. References to research need to contain the full citation, along with an explanatory remark about the relevance of the research to the evaluation. It is equally important for the report writer to list sources of information that were sought but that were ultimately unavailable and, hence, omitted from consideration. These also should be formatted in a list. The potential importance of the missing information to the evaluation, what was done to try to obtain it, and the reason it was not obtained briefly should be described. In fairness to the referring attorney, the evaluator should constantly strive to make information needs known at every step of the evaluation and notify the attorney when there are problems obtaining important data, especially that which, passively or actively, has been blocked. Finally, the writer should report any problems or concerns with the validity or accuracy of the information sources, including psychological test findings and any parties interviewed by the evaluator (plaintiff, defendant, and collateral witnesses) whose adverse reporting styles (e.g., malingering, deception, denial, etc.) could skew or otherwise degrade the accuracy of evaluation findings. This is best reported in a summary paragraph that appraises the overall quality of the database. The importance of this caveat paragraph cannot be over-emphasized. Evaluators work with the data

Writing Forensic Psychological Reports

549

available to them. Unlike attorneys or judges, they have no standing to issue subpoenas. They rely on the cooperation and honesty of others to obtain information, and frequently access to information that could alter the evaluator’s opinions is denied. It is better to proactively identify missing data in the report than attempt to explain its absence later in deposition or cross-examination.

Relevant History In a forensic psychological report the only history that really matters is what is relevant to answer the psycholegal questions before the court. What to include and discard is largely a matter of professional judgment. Evaluees often have colorful histories, which, although clinically or socially interesting, contain information that is distracting, unfairly prejudicial, and potentially biased. Here again, the report writer is reminded of the importance of screening data using a method like the best evidence model. There are several ways to structure the history section of a report, and the decision about how to do it may change with circumstances. First, it is possible to omit this section and instead report relevant historical data in the forensic evaluation section of the report. This method is very efficient, and it forces the writer to make carefully reasoned decisions about what is relevant to include. However, information presented via this format may also be more difficult to follow and integrate because it lacks a guiding story line. Another simple method is to divide the history into its traditional subcomponents (family history, early childhood, school history, relationship history, occupational history, military history, criminal history [when relevant], medical history, substance use history, psychiatric history, etc.), essentially reporting a series of content specific mini-histories. The primary advantage of this method is that it is organized by topic and thus easier within which to locate details and, later, from which to answer questions about specific details or categories of information. It is sometimes preferable to report a biographical chronology that integrates separate aspects of history into a narrative or story. This is especially true for situations in which there is a marked change in the evaluee’s life trajectory following one or more major events or a complex interplay among aspects of the history. Examples of such include mental illness that predisposes the evaluee to substance abuse or a tragic loss that produces an abrupt change in life course, and recurrent patterns or cycles of maladaptive social functioning that demonstrate personality dysfunction, a cyclic mental disorder, or a recurrent substance abuse problem. In reporting history, it is essential to identify the data source and to present contradictory data from other sources, if it exists. Again, there are two methods for accomplishing this. The first, which attorneys often prefer, is to report the evaluee’s history from each source separately. This has the advantage of identifying the sources as separate deposits of evidence and, in the case of person sources, to identify them as potential fact witnesses. A second method is to integrate the historical information, comparing, contrasting, and reconciling (if possible) the information from different sources along the way, as an historian might attempt to balance accounts of an historical controversy.

550

Gregg J. Gagliardi and Audrey K. Miller

Retrospective reconstruction of past mental states or functional capacities (Simon & Shuman, 2002), and a comparison of past states with present and forecasted future states or capacities, comprises such a critical class of questions for forensic mental health evaluation that a before/after kind of narrative structure is often necessary. When the psycholegal questions demand historical comparisons and/or future predictions, the report writer is obliged to incorporate this temporal structure into the report so that past, present, and future are clearly demarcated. Writing the history section as a chronological narrative rather than a series of mini-histories provides a convenient story format by which to understand how the evaluee has (or has not) changed following a critical event or epoch.

Clinical Formulation The clinical formulation section may either be autonomous or integrated with other data in the forensic evaluation section of the report. Either way, it is often a troublesome section for forensically inexperienced writers. A natural inclination is for the writer to report this section as if it were a traditional psychological assessment. If the writer makes this common mistake, it is easy to lose the reader, who is likely a nonclinical professional. This dramatically affects how such matters as mental status exams, diagnoses, and psychological test findings are reported and discussed. The traditional mental status examination (MSE), common to clinical reports, should not be considered obligatory for forensic reports. First, it is difficult to report a MSE in a manner that a nontechnical reader can understand. MSE phrases may contain clinical jargon. Second, a MSE can easily mislead the naive reader into thinking that it describes a static state of affairs. In reality, the MSE is a snapshot holding only for the occasion during which it was performed. Even so, sometimes a snapshot is exactly what the report requires, frequently the case with competency evaluations. Also, it is occasionally helpful to report a series of MSEs in a report to chart notable changes in the evaluee’s mental condition across time. In reporting a MSE, care should be taken to use language that the reader can understand and to carefully define clinical terms so they are comprehensible. Attorneys typically overvalue clinical diagnoses, often at the expense of a deeper and more meaningful inquiry into the evaluee’s functional capacities and abilities. The relative importance of diagnoses varies markedly from one kind of forensic setting and jurisdiction to the next. Some kinds of evaluations (e.g., disability evaluations) require an official diagnosis if the evaluee is to be awarded disability funds. In other settings, a diagnosis may be a necessary condition for a legal disposition (e.g., the diagnosis of a mental disease or defect to satisfy the definition of insanity). For other settings (e.g., personal injury evaluations), the parties may want a diagnosis but obliging them might enable needless confusion and distraction from the crux psycholegal issue, which is whether the evaluee’s biopsychosocial functioning has declined following an injury that the defendant is allegedly legally liable for causing. Generally, a comprehensive functional assessment of the evaluee is far more helpful to the reader of a forensic report than is a diagnosis. A diagnosis is never a legitimate substitute or shortcut for a functional assessment, which means that when a diagnosis

Writing Forensic Psychological Reports

551

is reported, the writer still has an obligation to report the impact of the diagnosis on the evaluee’s capacities, abilities, and traits. If a diagnosis is to be reported, it is imperative to: (a) explain the diagnosis, (b) report by which criteria the evaluee qualified for the diagnosis, (c) document how the evaluee satisfied diagnostic criteria, and (d) establish the relevance of the diagnosis in informing the crux psycholegal issues. The report writer needs to exercise great care in reporting test findings. First, most psychological tests have not been normed for forensic populations, meaning the traditional interpretation of the test may not apply. Second, few psychological tests have been normed for the adversarial circumstances under which they are administered during a forensic examination, which may encourage distorted self-presentation. Therefore, if test findings are reported in a forensic evaluation, the writer also has an obligation to report the evaluee’s test taking response style, which may require administration of special tests or scales. Numerical test findings, if they are reported at all, need to be reported in a way that will not mislead the reader. The writer can benefit from emulating how Educational Testing Service (ETS) reports achievement test scores to parents and teachers as bands on a scale and not just discrete scores. These error bands, which represent the confidence interval for the estimated level of achievement, illustrate that the numerical score is merely the best psychometric estimate of actual achievement. The writer needs also to consider on which scale to report the score. Whereas T-scores or z-scores are familiar to psychologists, nonpsychologists are better able to understand percentile scores. It is also easier for the reader to compare the evaluee’s relative standing on different tests using percentile scores. Finally, it is easier to explain percentile scores to attorneys, judges, and juries using examples such as finishing order in a foot race or standing in a golf tournament.

Forensic Evaluation Forensic psychological analyses or opinions are introduced by reciting the applicable psycholegal standards or definitions or, if no concise statutory standard is available, the basic psycholegal questions. This is done to tell the reader what psycholegal standards or definitions the writer applied in forming expert opinion(s). Consequently, these standards or definitions should quote the exact language from the applicable law with the statutory code number and source cited in parentheses if possible. Forensic psychologists rely on three basic kinds of data to form their psycholegal opinions: interviews of the evaluee, testing, and third-party information (i.e., documents, records, and interviews of persons other than the evaluee). These different methods of inquiry, together called the forensic data triangle, may comprise fairly independent sources for answering the psycholegal question(s). It is common for the writer to report findings separately for each source. For example, if three persons were interviewed to obtain observations of the evaluee at some critical point in time, each interviewee’s report might be summarized in a separate paragraph of the report. Key test findings might be reported the same way—one test after another. Interviews of the evaluee might likewise be reported serially. Ideally, all three sides of the forensic data triangle will tell a similar story but from different perspectives, thus providing a perspicacious, corroborated answer to the

552

Gregg J. Gagliardi and Audrey K. Miller

psycholegal question(s). However, sometimes the sources will tell different, even contradictory, stories, and it then may be useful to compare and contrast conflicting data from the different sources. This is best accomplished in a summary section that attempts to integrate the data and, if possible, reconcile discrepancies. If factual discrepancies are not too numerous, this can also be accomplished as each controverted fact is introduced. The natural structure of the psycholegal question(s) can often serve as a template for organizing the forensic evaluation section of the report. Two examples will help illustrate this concept. Once the basic idea is understood, it is readily generalized to other psycholegal questions. Consider the following question about sanity: Whether as a result of mental disease or defect the evaluee was unable to know the nature and quality of the act committed or whether the act was right or wrong. Because there are three key parts to the question, the forensic section of the report conveniently can be divided into three pieces, one to address each component of the legal test. Data from each side of the forensic data triangle can be presented in turn to address each component part of the question. A summary paragraph or two can then be used to integrate—and reconcile, if possible—the data from different sources into an overall opinion. Below is an outline demonstrating this method. I. Statement of the statutory psycholegal standard: A. Mental disease or defect 1. Third-party data 2. Test data 3. Interview data B. Ability to know the nature and quality of the act 1. Third-party data 2. Test data 3. Interview data C. Ability to know whether the act was right or wrong 1. Third-party data 2. Test data 3. Interview data II. Summary: Integrates data and provides the expert opinion.

Next, consider a personal injury evaluation. Here, the primary question might be what, if anything, the plaintiff has lost due to a legally liable defendant’s injury to the plaintiff. There may not be a concise statutory psycholegal standard to cite for this question. However, it is apparent from the question that two detailed functional assessments of the plaintiff are required, one before the injury and a second following the injury. Owing to the implication that the plaintiff’s life has changed as a result of the defendant’s alleged negligence, a chronological before/after format in the forensic evaluation section of the report may be adopted. The writer will want to report a fairly detailed longitudinal account of the plaintiff’s life in its many aspects (employment, education, relationships, physical health, mental health, social life, avocations/hobbies, etc.) before the injury as well as a detailed assessment of changes in these life parameters after the injury. Both assessments will likely include data from third-party sources, interviews

Writing Forensic Psychological Reports

553

of the plaintiff, and testing, where relevant. The overall assessment will attempt to integrate data from all sources into a coherent before/after picture. Each important life area would be examined from the perspective of each relevant side of the forensic data triangle. Here is how this might be outlined in the report. I. Plaintiff’s life course (adjustment) before the injury: A. Life area I (third-party data, interviews, testing if relevant) B. Life area II (third-party data, interviews, testing if relevant) C. Life area N (third party data, interviews, testing if relevant) II. Plaintiff’s postinjury life course (adjustment): A. Life area I (third-party data, interviews, testing if relevant) B. Life area II (third-party data, interviews, testing if relevant) C. Life area N (third party data, interviews, testing if relevant) III. Comparison of preinjury and postinjury life (adjustment)

Summary of Findings Most writers summarize their findings following the forensic evaluation section of the report. It is best to keep the summary brief and to the point, rather like the abstract for a journal article or paper presentation. A bulleted summary containing the main points is often helpful.

Disposition/Recommendations Recommendations about the evaluee’s future treatment or other dispositions are usually not an issue until a case has reached a particular stage (e.g., after a defendant has been found incompetent to stand trial, at the sentencing stage of criminal proceedings). Consequently, the inclusion of a disposition/recommendations section depends on the psycholegal questions posed by the referring attorney or court and the stage of the legal proceedings. In some situations such as parenting evaluations, specific recommendations about parenting plans are arguably the most important part of the report, whereas in cases such as personal injury evaluations rendering an opinion about an evaluee’s future treatment may be premature. In other cases such as competency to stand trial evaluations, sanity evaluations, or determinations of release from an institution, a disposition section of the report might contain “what if” or contingency recommendations for professional intervention should the court make certain rulings (e.g., find the defendant insane, release the defendant to a less restrictive setting).

Miscellany If the writer cites research, it is appropriate for the sources to be included in an appendix. Also, tables and diagrams may help organize and explain findings, and these, too, belong in an appendix. When the report must make reference to technical terms,

554

Gregg J. Gagliardi and Audrey K. Miller

an appendix should contain a glossary of these terms. It is also common for writers to precede certain sections of a report with disclaimers (e.g., paragraphs that warn the reader about the limitations of psychological testing or predictions of future dangerousness). Finally, writers may precede their signature with a declaration or oath affirming the authenticity and truthfulness of the proffered professional opinions.

The State of the Empirical Literature on Forensic Reports In this section, we briefly review the state of the empirical literature on forensic mental health reports (see Table 20.3). Even though this literature is young, undeveloped, and far from definitive, we nevertheless include a summary of it to encourage readers to consider the notion of empirically based forensic report writing practices, learn what we know and do not know about how our reports are received by the legal community, and acquire the habit of following this literature for future developments. As is evident in Table 20.3, extant studies have most commonly focused on criminal evaluation reports. Ideally, a mature literature on forensic mental health report writing would provide normative data on the content and structure of, and clear answers about, report consumers’ appraisal and use of forensic reports. Such information could be used to TABLE 20.3 Study

Summary of the Empirical Literature on Forensic Mental Health Reports Method

Results

Borum & Grisso (1996)

Surveyed national sample of forensic psychologists and psychiatrists regarding beliefs about necessary and appropriate CST (n = 102) and CR (n = 96) report content

Bow & Quinnell (2001)

Surveyed a national sample of psychologists’ (n = 198) reported practices in child custody reports

Bow & Quinnell (2002)

Examined: (a) content, (b) content relative to that recommended in prior survey data, and (c) communication of results within a national sample of child custody reports (n = 52)

“Essential”: defendant identification evaluation methods Clinical data elements specific to each forensic question Varying opinions = defendant’s and official versions of alleged offense, “ultimate issue” opinion Average report length = 21 pages, range = 4–80 pages 94% make explicit custody/visitation decisions in their reports 88% reported administration of MMPI to parents Average report length = 24 pages; range = 5–63 pages Report format and content varied Evaluation procedures were generally consistent with those recommended in past survey research and with guidelines Problems included failure to identify information such as evaluation procedures or referral question

Writing Forensic Psychological Reports

555

TABLE 20.3 Summary of the Empirical Literature on Forensic Mental Health Reports (Continued) Study

Method

Results

Christy et al. (2004)

Evaluated report (n = 1,357) content for private evaluations of juveniles adjudicated incompetent to proceed in FL

Hecker & Steinberg (2002)

Rated evaluators’ explanations for disposition recommendations in PA juvenile predisposition reports (n = 172) Compared content of CST and CR reports (n = 277) written in the hospital to content of community reports

Reports frequently failed to address legal issues (e.g., cause of incapacity, commitment eligibility) Reports incompletely described evaluation methods (e.g., 48% omitted evaluation state), examinees (e.g., half omitted mental status information), and examinees’ capacities Only 7% of reports included disposition explanations rated “sufficient” or better

Heilbrun & Collins (1995)

LaFortune & Nicholson (1995)

Owens et al. (1985, 1987)

Surveyed OK judges and attorneys (n = 100) regarding adequacy of submitted CST reports (i.e., timeliness, familiarity with legal criteria, understandable language, factual basis for conclusions, usefulness, overall quality) Surveyed NY judges (n = 22, n = 20) regarding pertinent CST report content and satisfaction

Petrella & Poythress (1983)

Compared quality of CST and CR reports (n = 30) written by psychiatrists to those written by psychologists and social workers

Robbins et al. (1997)

Assessed quality of actual CST reports (n = 66) by comparing to Grisso’s (1988) model

Overall mean report length = 3.9 pages Reviewed prior evaluations = 81% hospital, 30% community Reviewed arrest reports = 95% hospital, 48% community Addressed CST legal criteria = 95% hospital, 61% community Offered ultimate issue opinion = 95% hospital, 99% community Outpatient reports judged higher quality than inpatient reports Desired greater descriptiveness/more specific information regarding relevant functional capacities

Judges adhered to strict CST definitions Judges used CST information for advice on other issues (e.g., dangerousness) Judges were eager for, and satisfied with, psychiatric input (e.g., clinical data) Psychologists used a greater number of collateral data sources in their reports than did psychiatrists Psychologists’ reports were blindly rated of relatively higher quality 39% based only on interview with defendant (no testing or third-party data) 94% included psychiatric diagnosis, but only 27% stated how diagnosis affected functional ability 94% offered ultimate issue opinion Reports often contained extraneous information

(continued)

556

Gregg J. Gagliardi and Audrey K. Miller

TABLE 20.3 Summary of the Empirical Literature on Forensic Mental Health Reports (Continued) Study Ryba et al. (2003)

Skeem et al. (1998)

Method

Results

Examined psychologists’(n = 82) beliefs about necessary and appropriate juvenile CST report content Experts rated expressed (a) CST conceptualizations, (b) nexus between psychopathology and CST impairments, and (c) their agreement with opinions offered in community CST reports (n = 100)

“Essential” = clinical data and data specific to forensic question Varying opinions = “ultimate issue” opinion Collateral data inconsistently reviewed (police report = 63%, mental health records = 37%) Few (5%) described requested, but unavailable, records Certain CST abilities consistently addressed while others were not Rarely (10%) expressed specific reasoning about nexus between psychopathology and CST impairments Good rater agreement with clinical diagnosis (79%) and global CST opinions (82%), although divergent bases for these Insanity opinions were positively related to psychotic, organic, and affective diagnoses and previous psychiatric treatment Insanity opinions were negatively related to prior criminal history, drug charges, personality disorder diagnosis, and intoxication at time of the offense In all but one case the court accepted the expert’s opinion Reports frequently omitted relevant CST functional areas (e.g., 22% did not address the defendant’s understanding of the nature of proceedings)

Warren et al. (2004)

Examined clinical, criminal, and demographic attributes of defendant described in VA sanity reports (n = 5,175) and their relation to opinions of insanity

Zapf et al. (2004)

Examined (a) concordance rate between professionals’ CST opinions (n = 328) and courts’ determinations and (b) report (n = 53) quality in terms of AL statute

Note: CST = Competency to Stand Trial; CR = Criminal Responsibility.

improve forensic report writing practices and to develop empirically based reportwriting standards. As will be seen, these goals are yet to be achieved. Wettstein (2005) reviewed the empirical literature on the quality of the forensic mental health evaluation, including its primary product, the report (many of Wettstein’s references are contained in Table 20.3). Wettstein’s review of this literature revealed several weaknesses of forensic report writing in practice. Problems with actual forensic reports neglect of supporting (e.g., collateral) data; under-emphasis of the nexus among psychopathology, psycholegal functioning, and forensic opinions; and, failure to acknowledge evaluation limitations. Borum and Grisso (1996) surveyed forensic evaluators, who averaged 17 years experience and of whom 80% were

Writing Forensic Psychological Reports

557

board certified. Veteran evaluators agreed that explicating a diagnosis and its relationship to the psycholegal questions is critically important. Yet, Skeem, Golding, Berge, and Cohn (1998) suggested that such aspirations commonly are not attained in practice. Specifically, Skeem et al. found that, among a sample of community Competency to Stand Trial (CST) reports, only 65% considered police documentation, 37% considered the defendant’s mental health records, and 9% indicated defense counsel contact. Also, reports routinely addressed foundational competencies (e.g., appreciation of charges) but not decisional competencies (e.g., capacity for reasoned choice among legal options; Bonnie, 1992). Finally, reports rarely (10%) supported the expert’s psycholegal opinion with specific reasoning about the nexus between the clinical impairments and the psycholegal issues. As Skeem et al. (1998) pointed out, although ultimate legal determinations reside with the trier of fact; courts rely heavily on examiners’ opinions (e.g., Zapf et al., 2004). Thus, neglecting to establish sound inferential linkages between the expert’s findings, reasoning, and the psycholegal issues is a serious problem. An interesting and rather consistent finding across the available literature has been that, despite admonitions to resist opining on ultimate legal issues (Allnutt & Chaplow, 2000; Melton et al., 1997), actual forensic reports frequently contain these opinions (Bow & Quinnell, 2001; Heilbrun & Collins, 1995; Robbins, Waters, & Herbert, 1997; Skeem et al., 1998). This trend is particularly troubling in view of Skeem et al.’s findings that expert opinions often are poorly supported by data and reasoning. Echoing this point, Allnutt and Chaplow (2000) advised the forensic report includes the evidentiary bases for each level of inference, whether inferring psychopathology, the impact of psychopathology on behavior, or the way each of these apply to relevant legal issues. They also suggested addressing plausible alternative inferences and the reason(s) for their exclusion. Finally, Allnutt and Chaplow suggested that, even if encouraged by report consumers to provide ultimate issue opinions, evaluators resist doing so because an adequate description of a mental state as it pertains to legal issues should allow the judge or jury to draw its own inference regarding the ultimate psycholegal question(s). Despite calls for clinically well supported opinions, it appears forensic examiners still tend to neglect descriptive responsibilities in favor of offering conclusive opinions on ultimate legal issues. Another fundamental shortcoming of the empirical literature on forensic reports is that conclusions drawn about report content and quality, including those discussed here, have been based on a limited collection of studies. Overall, the current literature is limited by several critical factors: 1. Studies mainly examine criminal forensic reports; particularly, competency-tostand-trial reports, predominate 2. Studies utilize poor methodological designs, including nonrandom selection, small sample size, and variability in setting, jurisdiction, and statute, which restrict generalization of the findings 3. Studies fail to examine the correspondence (or lack thereof) among the forensic report, the examination from which it followed, and the referral questions that gave rise to the examination 4. Due to lack of consensus about desired forensic report qualities, studies lack standardized quality assessment measures

558

Gregg J. Gagliardi and Audrey K. Miller

The first problem listed here has much to do with the youth of forensic psychology. As the field evolves through its adolescence, and as training programs increasingly emphasize empirical approaches to the assessment of a multitude of forensic questions, so, too should our noncriminal study base grow. As our empirical knowledge base evolves, we also will likely benefit from increasingly sophisticated studies. For example, a creative longitudinal study design might provide insight into the way forensic examination factors (e.g., referral process, assessment method, data gathering procedures) affect forensic report writing. The issue of quality assurance in forensic reports has become a hot discussion topic within the discipline of forensic psychology. Two of the most pressing questions involve what criteria should be used to evaluate the quality of forensic mental health reports, and who, expert or consumer, is the best judge of a “good” forensic report. Although we might hope to find guidance in forthcoming revisions of the 1991 Specialty Guidelines for Forensic Psychologists (SGFP), professional standards cannot be expected to definitively answer these questions but, rather, to inspire and inform dialogue between lawyers and mental health professionals. Much collaborative work remains to be done, especially in the spirit of Lafortune and Nicholson (1995) and Owens and colleagues (1985, 1987), to invite to the discussion table forensic report consumers, including judges and attorneys, who undoubtedly have their own values regarding what constitutes a respectable forensic report.

Practical Tips for the Apprehensive Report Writer We assume at this point that the report writer has conducted a competent forensic evaluation and has done a fair, accurate job of organizing data, sifting and separating probative, relevant facts from irrelevant, unfairly prejudicial chaff. If not, an attempt to write will likely fail, and the writer will need to go back and complete these preliminary steps before proceeding further. We also need to make a distinction between what the evaluator says in the report (content) and how the writer says it (process). Ensuring quality report content requires attention to data organization, synthesis and reasoning. Quality content is a prerequisite for effective report writing. Writing is no substitute for poor forensic assessment, disorganization, or insufficient reasoning. Indeed, no amount of writing skill can ever compensate for inadequate facts or poorly reasoned conclusions. How the evaluator actually writes findings and opinions, however, is a creative process. Creative processes consist of three basic elements: a creator, a medium, and inspiration (or muse, if you prefer). Michelangelo (1475–1564) is alleged to have said, “Every block of stone has a statue inside of it, and it is the task of the sculptor to discover it.” One thing to learn from this remark is the crucial role that the creator’s recursive interaction with the medium plays in creation and, most importantly, how inspiration arises from this active struggle. Viewed in slow motion at a molecular level, the creator begins by attempting to produce a change in the medium; the medium then undergoes a change but not necessarily the one intended; the creator perceives the result, and this opens up possibilities for the creator’s next operation on the medium, and so on and so forth. Slowly, a “shape” of some sort begins to emerge,

Writing Forensic Psychological Reports

559

and at some point this embryonic form suggests to the creator what it can become, and what must be done next to accomplish this result. What makes writing difficult is confusion about the medium with which the writer works. A related difficulty is that writing, unlike sculpture, requires generating the medium itself from scratch. For the forensic report writer the raw materials consists of the facts, inferences, and opinions derived from the evaluation findings. Second, and most important to the present discussion, the medium proximal to the act of writing consists of language itself. Understanding this second fact makes a huge difference in how one goes about writing. Paradoxically, it is first necessary to put words on the page before truly beginning to write, to use language itself to generate language. This is a classic example of bootstrapping as illustrated in the apocryphal tale of Baron von Münchhausen who rescued himself from certain danger by literally pulling himself up by his own pigtails (for a rigorous and highly entertaining treatment of bootstrapping see Watzlawick, 1990). Not until we begin to interact with what we have written does the real writing begin. It is in this sense that all good writing is really just good editing. Several problems commonly plague report writers. Table 20.4 lists them along with proposed remedies. Most of these remedies are variations on a common theme: The way that the writer begins from a dead start—or later gets unstuck—is simply to generate language, any language at all, in the easiest, most convenient way possible. Once words have been put on the page, they readily can be arranged and rearranged, and it is easier to see their possibilities and to generate more precise language . . . finer chisel strokes. However, before starting to write the report one must first get organized. An organized report begins with an organized file and with quality time spent contemplating the issues, findings, and their implications for the psycholegal questions. Too often novice report writers rush to report writing as a way to organize their data and do their thinking. Although writing can inspire thinking, clear thinking usually precedes clear writing. Once the information has been organized, categorized, and distilled, patterns emerge. Conclusions become easier to draw. Once the distracting noise has been removed, a story usually unfolds, and it is often a fairly simple one that is easy to write. Beginning the actual writing is typically the most difficult step. A blank computer screen can be a lonely, intimidating, if not paralyzing, experience. It is easy to make excuses to avoid writing in favor of other professional activities that provide more instant gratification. The initial struggle to overcome procrastination can be difficult, especially if the writer experiences report writing as an arduous task. One common obstacle to starting or continuing to write is perfectionism, the irrational belief that the right word or idea will come to mind if we persist long enough in looking for it; that we should be able to write one clear, coherent sentence after another; that we should not move on to the next paragraph until the last one is well written; or, that we should start at the beginning of the report and rigidly follow the report outline until the final sentence is written. A related problem is the belief that we have to be in a special, inspired mood or mental state to write well. This latter belief can cause the writer to wait passively for the muse to appear, which may be long past the report deadline.

560

TABLE 20.4

Gregg J. Gagliardi and Audrey K. Miller

Common Report Writing Problems and Remedies to Overcome Them

Problem

Remedy

Information overload

Start by creating the database section first. Sort database into categories. Summarize main findings into lists of bullet points.

Difficulty starting/procrastination

Begin anywhere, even in the middle of the report. Dictate instead of type your report. Carry a Dictaphone, record report ideas in any order. Pick an easy first writing task (e.g., social history).

Lack of direction

Follow someone else’s outline or template. Write conclusions first, then work backwards. Turn your report into a PowerPoint presentation.

Perfectionism

Rapidly dictate the report, in any order. Speed-write/type (as fast as you can). Reserve perfectionism for editing the report.

Anxiety

Monitor body sensation as you write. Check your posture and muscle tension. Monitor your feelings and imagery. Ask: “Who I am writing this report for?”. Consult self-help resources for writers. Seek professional help.

One way to remedy perfectionism is to encourage the opposite, writing whatever comes to mind in whatever order it appears. Abandon grammar and rules. Just write. If necessary, write by hand, draw circles around key words and link them together with lines or arrows or other nonverbal structural representations. This is more like play than work, and it establishes a mental set conducive to both organization and enjoyment. It is possible that, owing to years of conditioning, you may have trouble writing with reckless abandon. If so, try dictating your report. Turn the machine on and start talking. If this doesn’t work, get up from your desk, look out the window, or walk about your office, dictating while you walk or pace. Once you have generated verbal output, ideas about how to further organize it will often appear. If not, go for a walk. Bring your Dictaphone or notepad because there is a good chance that once you escape the confines of your office, you will continue to mull over what you have been trying to write, and ideas will begin to pop into consciousness. When they do, jot them down or dictate them. Remember, too, that there is a place for perfectionism. This talent, which many psychologists possess in surplus, is most helpful in editing and polishing the report. Generating a direction can be another obstacle to report writing. Adopting a report outline—any outline—is one solution to this malady. If the adopted outline later proves to be a poor structural fit for the report, it can be rearranged to improve the fit. In the meantime, the template has served a useful temporary purpose in helping the writer compose the lion’s share of the report. Another means to facilitate getting going on the report is to write the synopsis or conclusions section first. Once the basic story is known, developing it further by providing history, context, and specific findings may be easier. Or, you might imagine that your report is a PowerPoint presentation. A PowerPoint outline forces us to think, prioritize what we wish to say, and say it succinctly. Also, if you follow this advice literally, you may find the slideshow useful in presenting your findings on the witness stand.

Writing Forensic Psychological Reports

561

Evaluators who find report writing a difficult, unpleasant chore have often acquired a learned negative emotional response to the task. A sure sign this has occurred is heightened anxiety or dread when thinking about or writing reports. Increased body tension and awkward or uncomfortable body postures while writing are also telltale signs of traumatic learning associated with writing. Although the origins and maintenance of this unproductive state vary, it may be perpetuated through negative self-talk, negative imagery, unpleasant affect, and the unconscious adoption of body postures that support this state. If we diligently observe our posture, body sensations, emotions, inner dialogue, and imagery while writing, we may sometimes learn what is getting in our way. Introspection may reveal that the distraught writer is more preoccupied with favorably impressing—or, alternately, worried about displeasing — an inner audience of critics than on the practical task of communicating with the intended reader. Monitoring body sensations, emotions, thoughts, and fantasies while writing takes some practice and dedication, but it is well worth the effort. Waking up to these influences forever changes the writer’s relationship to them and promotes freedom from them or at least learning how to write despite them. For some, it may be advisable to take courses on writing, seek self-help resources for writers, or even seek professional help for deeper issues that may have an adverse influence on writing.

Summary In this chapter we have introduced the reader to forensic report writing. Although no shortage of aspiration and conjecture exist regarding how to write forensic reports, little reliable empirical research is available to guide the evaluator in performing this critical task. If our reader has examined fundamental assumptions and beliefs about how to write a forensic report, we have accomplished a major goal. If we have also helped the reader develop a more positive attitude toward forensic report writing, or a greater sense of confidence in taking on the task, so much the better. It should be clear by now that forensic report writing begins long before we type or dictate. It begins with a high quality forensic evaluation, which cannot be conducted unless the evaluator has acquired skill in the methods of forensic and clinical assessment, mastered the pertinent psycholegal standards, and gathered sufficient reliable data to address the psycholegal questions. Assuming a good evaluation has been (or can be) completed, the evaluator must next critically evaluate the quality of obtained data, decide what data are relevant and probative to answering the psycholegal question(s), and then answer those questions only to the extent the data permit. Although veteran forensic practitioners and specialty organizations can be invaluable sources of wisdom about how to write forensic reports, the evaluator must ultimately follow his or her own light and proceed with selfhonesty and courage throughout the entire evaluation and report writing process. If “the only way to become a better writer is to become a better person” (Ueland, 1938/1987, p. 129), perhaps the best way to become a better forensic report writer is to become a better forensic evaluator.

562

Gregg J. Gagliardi and Audrey K. Miller

Endnotes 1. Hereafter, we shall use the word “attorney” to represent the retaining party, although that party could be a judge, social service agency, forensic hospital, or correctional agency such as a jail or prison. 2. Health Insurance Portability and Accountability Act of 1996. 3. Start with the following basic set of Federal Rules of Evidence: 401, 403, 702, 703, 704, 705, 803 (4), 803 (6), and 803 (18). Additional evidence rules will be relevant for civil and criminal cases involving sexual misconduct (FRE 412, 413, 414 and 415). Although most jurisdictions have adopted evidence rules that parallel federal rules quite closely, there are also important jurisdictional differences that the report writer should follow. 4. See Federal Rule of Evidence 102. For an entire book devoted to an exposition of that rule as it applies to expert testimony, see Sales and Shuman (2005).

References Ackerman, M. J. (2006). Forensic report writing. Journal of Clinical Psychology, 62, 59–72. Allnutt, S. H., & Chaplow, D. (2000). General principles of forensic report writing. Australian and New Zealand Journal of Psychiatry, 34, 980–987. Benjamin, G. A. H., & Gollan, J. (2003). Family evaluation in custody litigation: Reducing risks of ethical infractions and malpractice. Washington, DC: American Psychological Association. Bonnie, R. (1992). The competency of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. Borum, R., & Grisso, T. (1996). Establishing standards for criminal forensic reports: An empirical analysis. Bulletin of the American Academy of Psychiatry and the Law, 24, 297–317. Bow, J. N., & Quinnell, F. A. (2001). Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association guidelines. Professional Psychology: Research and Practice, 32, 261–268. Bow, J. N., & Quinnell, F. A. (2002). A critical review of child custody evaluation reports. Family Court Review, 40, 164–176. Christy, A., Douglas, K. S., Otto, R. K., & Petrila, J. (2004). Juveniles evaluated incompetent to proceed: Characteristics and quality of mental health professionals’ evaluations. Professional Psychology: Research and Practice, 35, 380–388. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Doren, D. M. (2002). Evaluating sex offenders: A manual for civil commitment and beyond. Thousand Oaks, CA: Sage. Greenberg, S.A. (2003). Personal injury examinations in torts for emotional distress. In A. M. Goldstein (Ed). Handbook of psychology: Forensic psychology, 11. (233–257). Hoboken, NJ: John Wiley. Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional Psychology: Research and Practice, 28, 50–57. Grisso, T. (2005). Clinical evaluations for juveniles’ competence to stand trial: A guide for legal professionals. Sarasota, FL: Professional Resource Press/Professional Resource Exchange. Groth-Marnat, G. (Ed.). (2006). Psychological reports [special section]. Journal of Clinical Psychology, 62, 1–81.

Writing Forensic Psychological Reports

563

Harvey, V. S. (1997). Improving the readability of psychological reports. Professional Psychology: Research and Practice, 28, 271–274. Hecker, T., & Steinberg, L. (2002). Psychological evaluation at juvenile court disposition. Professional Psychology: Research and Practice, 33, 300–306. Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at the time of offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61–67. Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment: A casebook. New York: Oxford. LaFortune, K. A., & Nicholson, R. A. (1995). How adequate are Oklahoma’s mental health evaluations for determining competency in criminal proceedings? The bench and the bar respond. Journal of Psychiatry and Law, 23, 231–262. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford. Owens, H., Rosner, R., & Harmon, R. B. (1985). The judge’s view of competency evaluations. Bulletin of the American Academy of Psychiatry and the Law, 13, 389–397. Owens, H., Rosner, R., & Harmon, R. B. (1987). The judge’s view of competency evaluations: II. Bulletin of the American Academy of Psychiatry and the Law, 15, 381–389. Petrella, R. C., & Poythress, N. G. (1983). The quality of forensic evaluations: An interdisciplinary study. Journal of Consulting and Clinical Psychology, 51, 76–85. Robbins, E., Waters, J., & Herbert, P. (1997). Competency to stand trial evaluations: A study of actual practice in two states. Journal of the American Academy of Psychiatry and the Law, 25, 469–483. Rogers, R., & Shuman, D. W. (2000). Conducting insanity evaluations (2nd ed.) New York: Guilford Press. Rogers, R., & Shuman, D.W. (2005). Fundamentals of forensic practice: Mental health and criminal law. New York: Springer. Ryba, N. L., Cooper, V. G., & Zapf, P. A. (2003). Juvenile competence to stand trial evaluations: A survey of current practices and test usage among psychologists. Professional Psychology: Research and Practice, 34, 499–507. Sales, B. D., & Shuman, D. W. (2005). Experts in court: Reconciling law, science and professional knowledge. Washington, DC: American Psychological Association. Simon, R.I., & Shuman, D.W. (2002). Retrospective assessment of mental states in litigation: Predicting the past. Washington, DC: American Psychiatric. Skeem, J. L., Golding, S. L., Berge, G., & Cohn, N. B. (1998). Logic and reliability of evaluations of competence to stand trial. Law and Human Behavior, 22, 519–547. Tallent, N. (1993). Psychological report writing (4th ed). Englewood Cliff, NJ: Prentice Hall. Ueland, B. (1987/1938). If you want to write: A book about art, independence and spirit. St. Paul, MN: Gray Wolf. Warren, J. I., Murrie, D. C., Chauhan, P., Dietz, P. E., & Morris, J. (2004). Opinion formation in evaluating sanity at the time of the offense: An examination of 5175 pre-trial evaluations. Behavioral Sciences and the Law, 22, 171–186. Watzlawick, P. (1990). Munchhausen’s pigtail or psychotherapy and reality: Essays and lectures. New York: Norton. Wettstein, R. M. (2005). Quality and quality improvement in forensic mental health evaluations. The Journal of the American Academy of Psychiatry and Law, 33, 158–175. Zapf, P. A., Hubbard, K. L., Cooper, V. G., Wheeles, M. C., & Ronan, K. A. (2004). Have the courts abdicated their responsibility for determination of competency to stand trial to clinicians? Journal of Forensic Psychology Practice, 4, 27–44.

21 Testifying in Court Evidenced-Based Recommendations for Expert-Witness Testimony Phylissa P. Kwartner and Marcus T. Boccaccini

Testifying in Court: Evidenced-Based Recommendations for Expert-Witness Testimony Psychologists who testify in court should strive to provide accurate, objective, and educative testimony. The goal of the expert witness is to provide this testimony in a way that will be useful to the decision maker, whether the decision maker is a judge or a jury. The goal of this chapter is to use findings from empirical expert-witness research to identify evidence-based recommendations for providing effective testimony. Psychologists and all other potential expert witnesses must be recognized, or “qualified,” as experts before they can testify during a trial. Because potential expert witnesses cannot testify about their opinions unless they are first recognized as experts, this chapter begins with an overview of the most common standards used to qualify potential experts and research about how judges make decisions about the admissibility of expert-witness testimony. The second section identifies principles for providing effective testimony once the mental health professional has been recognized as an expert. Psychologists who are preparing to testify in court must be ready to be persuasive in establishing their status as an expert and in communicating their opinions to the trier of fact. Qualification as an Expert Witness Federal Rules of Evidence The criteria used to qualify a mental health professional as an expert vary by jurisdiction, although a number of states have adopted criteria similar to those followed in federal courts. According to Federal Rule of Evidence 702, an expert witness is someone who, through knowledge, skill, experience, training, or

565

566

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

education, has attained sufficient expertise in her area to satisfy the court that her opinion will be helpful in assisting the trier of fact. FRE Rule 702: If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The decision about whether a potential witness qualifies as an expert is at the judge’s discretion. Judges may qualify potential experts based on a combination of factors including, but not limited to: education, professional credentials, board certification, publication in peer reviewed journals, and previous experiences as an expert witness (Blau, 1998, Groscup, 2004). Psychologists, for example, do not automatically qualify as expert witnesses on the basis that they hold a doctoral degree and limit their practice to psychology (Wilkinson, 1997). Decisions about the admissibility of expert-testimony are often made before trial, based on testimony provided in a pre-trial hearing. The Daubert Standard and Scientific Merit In Daubert v. Merrell Dow Pharmaceuticals (1993) the Supreme Court addressed the issue of how judges in federal courts should interpret the Federal Rules of Evidence (FRE) and make decisions about the admissibility of expert evidence. The court held that the decision about whether a potential witness qualifies as an expert should be based on the scientific merit of the expert’s methods and theories underlying their conclusions. The court suggested that judges consider several factors when determining scientific merit, including: (a) whether the expert’s conclusions are based on testable hypotheses, (b) the known error rate associated with the experts’s procedures, (c) whether the procedures have been subject to peer review, and (d) whether the methods are generally accepted in the relevant scientific community. Although the Daubert decision addressed the issue of how judges should make determinations about the admissibility of “scientific” evidence, it was initially unclear whether the same standards should be applied to “technical, or other specialized knowledge,” upon which expert opinions can also be based (FRE 702). Because many of the clinical and forensic activities about which mental health professionals might testify can be conceptualized as falling at least partly under the domains of technical or otherwise specialized knowledge, the extent to which Daubert applied to mental health evidence was initially unclear. However, the Supreme Court ruled in Kumho Tire Co. v. Carmichael (1999) that the Daubert decision applied to all types of expert evidence and that there was no bright line distinction that could be made between scientific and other types of expert evidence. Federal Rules of Evidence, Daubert, and Admissibility in State Courts By 2004, 20 states had adopted Daubert in their rules of evidence and 12 others had adopted FRE 702 without specifically adopting Daubert (Parry, 2004). Twelve states and the District of Columbia followed the older Frye standard, which focuses on the general acceptance of the expert’s methods and theories in the scientific community (Frye v. United States, 1923). Six states followed other rules for admitting expert evidence (see Parry, 2004). Psychologists who are preparing to testify in court should be aware of the standards for admitting expert evidence in the jurisdiction in which they are going to testify and be prepared to respond to questions challenging their status as an expert as defined in the jurisdiction’s standard.

Testifying in Court

567

Factors Influencing Judges’ Admissibility Decisions The Daubert decision prompted a series of empirical studies examining the impact of the decision on judges’ admissibility decisions. One line of research has focused on reviewing appellate court decisions that address the issue of expert admissibility (Dixon & Gill, 2002; Groscup, 2004; Grosscup, Penrod, Studebaker, Huss, & O’Neil, 2002). Findings from these studies have suggested that the Daubert decision led to an increase in the amount of attention paid to factors for admissibility discussed in FRE 702, such as the expert’s experience, training, credentials, and the relevance and potential prejudicial impact of the expert’s testimony. The four criteria for evaluating scientific merit recommended by the Supreme Court in Daubert appear to have had less of an impact on admissibility decisions. Dixon and Gill (2002) observed an increase in discussion of these criteria in cases that were appealed immediately following the Daubert decision, but noted that this pattern decreased over time, with only peer review and general acceptance continuing to be discussed more frequently than they had before Daubert. Groscup and colleagues (2002, 2004) also found that general acceptance was an influential factor in post-Daubert appellate court decisions, especially for psychologists testifying about syndromes (e.g., Battered Women’s Syndrome). Another line of research has examined judges’ reports of the factors they consider when making admissibility decisions and their understanding of the scientific merit criteria outlined in the Daubert decision (Dahir et al., 2005; Gatowski et al., 2001; Kovera & McCauliff, 2000). Findings from this line of research are consistent with those from the appellate court decision reviews in several ways. First, Dahir et al. (2005) found that issues relating to FRE 702, such as the expert’s credentials, were the most frequently considered piece of information by judges for making determinations about the admissibility of psychological syndrome evidence. Few of these judges reported considering the Daubert scientific merit criteria when making admissibility decisions in these cases. Those who did mention one of the Daubert criteria were most likely to mention general acceptance (25%), with relatively few mentioning peer review (7%), and fewer than 1% mentioning falsifiability or error rates. One possible reason for this pattern of findings is that judges are more familiar with the concepts of general acceptance and peer review than the other scientific merit criteria. Indeed, research with this same sample of judges revealed that many judges were able to provide adequate descriptions of general acceptance and peer review, but few were able to adequately describe error rates and falsifiability (Gatowski et al., 2001). Recommendations for Admissibility Hearings. The findings from admissibility research present somewhat of a conundrum for experts preparing to testify in court. Although the Daubert decision asks judges to address the scientific merit of an expert’s potential testimony, these factors appear to have little bearing on judges’ determinations of admissibility. Does this mean that experts should not be prepared to respond to Daubert related questions? Of course not. Responsible experts recognize that the extent to which their methods and conclusions are challenged can vary widely from case to case, but that they should always be prepared for stringent challenges. What the findings from admissibility research do clearly indicate is that mental health professionals preparing to testify in court should pay particular attention to demonstrating that their experience and training, merits their recognition as

568

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

an expert and that they can make clear arguments that will convince the judge that testimony “fits with the case, thus providing assistance to the trier of fact” (Groscup, 2004, p. 65). Evidenced-Based Principles of Effective Testimony Once a mental health professional is sure that he meets the criteria to assume the expert role, he may wonder what factors lead to the most useful testimony. One recent focus of psychology-law research has been to identify the characteristics of expert witnesses and their testimony that will influence judges’ and jurors’ decisions. The remaining portions of this chapter describe findings from empirical expert-witness research to provide evidence-based principles for effective courtroom testimony. The Nature of Expert Witness Research Sixty-Two Studies. The evidence-based principles for providing effective testimony that are described in this chapter are based on the findings from 62 expert-witness research studies.* Each of these studies examined the effect of an experimental manipulation in expert-witness characteristics or testimony on judge or juror decision making.† We included studies from mental health professionals and all other types of expert witnesses in our review because principles of effective testimony should generalize across professions, fields, and types of experts. Findings from several correlational studies and surveys that have asked jurors or potential jurors about expert witness issues are also described to supplement findings from the experimental studies, but the evidence-based principles are based on findings from the experimental studies. Variations in Study Design. Much of the existing expert witness research has been conducted within the framework of a mock jury trial, although a few studies have used judges as participants (e.g., Kovera & McAuliff, 2000; Kwartner, Lyons, & Boccaccini, 2006). Many studies used undergraduate research volunteers as mock jurors, although some used jurors or community members (e.g., Diamond & Casper, 1992; Greene, Downey, & Goodman-Delahunty, 1999). The manner in which testimony and other trial details were presented to mock jurors in these studies has varied greatly, including written trial summaries, court transcripts, photographs of witnesses, and audio or videotaped testimony. The length of the information varies as well, ranging from brief written trial summaries to several hours of videotaped testimony. Measuring the Impact of Expert Testimony. The impact of manipulations in expert testimony is usually measured through differences in trial outcome and perceptions of the expert. Examination of trial outcome is important because the ultimate value of expert testimony is the effect it has on judge and jury verdicts. The most common measure of trial outcome used in jury research is a case verdict, although information about the size of damages awarded is also a measure of trial outcome. * The studies were identified using PsychINFO searches, hand searches of psychology-law journals (e.g., Law and Human Behavior, Behavioral Sciences and the Law), and reference sections from identified studies. This review identified 50 studies published in scholarly journals and 12 unpublished theses and dissertations. † See the Appendix for a list of the 62 studies contributing to our analysis.

Testifying in Court

569

Jurors’ perceptions of experts were usually examined through measures of perceived credibility. Perceived credibility is an indicator of expert testimony effectiveness that can be independent of trial outcome. Indeed, expert testimony is typically only one aspect of a case. Triers of fact may respond positively to an expert, but base their ultimate decisions about the case on factors unrelated to the expert or his or her testimony. The adversarial nature of hearings and trials forces judges and jurors to evaluate the credibility of expert witnesses and weigh the experts’ testimony accordingly. Most jury instructions explicitly state, or at least imply, that the jurors are the sole evaluators of each witness’s credibility, whether they testified about fact or opinion. Several of the studies included in this review use composite measures of such variables as expert persuasiveness, trustworthiness, usefulness, objectivity, and believability to measure overall credibility. Although many of the studies reviewed for this chapter reported additional dependent measures, the evidence-based recommendations are based on findings regarding trial outcome and credibility-related judgments. The Four Cs of Effective Expert Testimony Our review of the 62 experimental expert-witness studies revealed four evidencebased principles for effective testimony. We refer to these principles as the four Cs: clarity, clinical knowledge, case specificity, and certainty. Many of the studies supporting these principles involved complex interactions with other testimony and expert variables, and these principles were not always supported in every study condition across every study. Nevertheless, these principles represent the most consistent findings across the 62 studies and provide a useful and common-sense framework for providing effective testimony. Principle 1: Clarity The first evidence-based principle of effective testimony is that experts should communicate in a clear and comprehensible manner. The primary goal of expert testimony is to assist the trier of fact to understand evidence and issues that may be relevant to the case (FRE 702). To achieve this goal, experts need to be able to explain their methods and conclusions in a way that allows the decision maker to understand the information and its relevance to the trial. Indeed, a survey of 167 former jurors across three states revealed that the ability to convey information in a nontechnical fashion was the characteristic jurors most frequently associated with expert credibility (Shuman, Whitaker, & Champagne, 1994). A sample of 85 experts who testified in the trials heard by these jurors also identified the ability to convey technical information in a nontechnical manner as the most important factor for establishing their credibility. Using jargon-free testimony that is clear and easy to understand is one of the most common recommendations found in howto guides for expert witnesses (see Blau, 1998; Brodsky & Anderer, 1999; Chappelle & Rosengren, 2001; Gutheil, 2000; Lubet, 1998). Brodsky and Robey (1972) include the presentation of clear, jargon-free testimony as a key characteristic of an effective “courtroom-oriented witness.” The influence of testimony clarity on judge and juror decision making was observed across a series of experimental studies examining how the use of technical and complex language can affect jurors’ decisions. Complexity and technicality of testimony

570

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

TABLE 21.1 Evidence Based Principle 1: Experts should communicate in a clear and comprehensible manner Examples of Low-Complexity and High-Complexity Testimony Used in Expert Witness Research Study (type of expert)

Low Complexity

High Complexity

Bourgeois et al. (1993) Exp. 1 (physician/economist)

Layman’s language: “Cancer of the breast was diagnosed by surgically removing part of the lesion and analyzing it.”

Cooper & Neuhaus (2000) Exp. 3 Cooper et al. (1996) (plaintiff: biochemist) (defense: epidemiologist)

Greater proportion of lay rather than scientific terms “In addition to the liver damage, McConnell found diseases of the immune system as well.” Moderate level of scientific difficulty: Less technical and relatively clear language

Use of medical jargon: “A diagnosis of infiltrating ductal carcinoma was made, based on results of an incisional biopsy.” Use of specialized, technical jargon “There was hepatomegaly, hepatomegalocytosis, and lymphoid atrophy in both spleen and thymus.” High level of scientific difficulty: Language was difficult for average layperson to understand Language generally inaccessible to laypersons: “Mr. Bessant had a normal white count, but low absolute lymphocytes, low total T cells, and low total B cells. The T helper and T suppressor cell absolute numbers are low, but there is a greater diminution of the helper cell population causing the helper: suppressor ratio to be low.” Use of vocabulary typically used in the legal system “Northern owed a duty of care to the plaintiffs as persons who foreseeably would be injured by its acts and omissions.”

ForsterLee et al. (1993) (immunologist)

Horowitz et al. (2001) (immunologist, engineer, clinical psychologist, environmentalist, physician)

Language accessible to laypersons: “Mr. Bessant has a normal white count, but other results of the blood work showed that the cells that help fight infection were significantly lower than normal.”

Horowitz et al. (1996) (not indicated)

Substituted jargon with common, concrete words “Northern owed a duty of care to the plaintiffs as people Whom it could see would be harmed by what it did or did not do.”

are typically manipulated in these studies by changing the amount of psychological or medical jargon used during testimony. Table 21.1 provides examples of how testimony complexity has been manipulated in these studies. With a few caveats, findings from this line of research suggest that an expert’s ability to communicate clearly is crucial for ensuring that the trier of fact understands the testimony and can apply it when making decisions. Problems with Highly Technical Testimony. Horowitz and colleagues have conducted a series of studies in which they manipulated the technicality of expert-witness testimony. In an early study by this research team, jurors’ verdicts in a medical malpractice case were found to be consistent with the weight of the evidence when an expert’s audiotaped testimony was not highly technical, but inconsistent with the weight of the

Testifying in Court

571

evidence when the expert’s testimony was highly technical (Bourgeois, Horowitz, & ForsterLee, 1993). However, when jurors were given access to transcripts of the highly technical testimony, their verdicts were more consistent with the evidence, implying that they were only able to accurately process the technical evidence when it was given to them in writing. Horowitz and colleagues used a videotape of a simulated trial in a series of three studies examining the impact of testimony complexity on jurors’ decisions in a toxic tort case (ForsterLee, Horowitz, & Bourgeois, 1993; Horowitz, Bordens, Victor, Bourgeois, & ForsterLee, 2001; Horowitz, ForsterLee, & Brolly, 1996). ForsterLee et al. (1993) found that jurors were unable to differentially compensate four plaintiffs with varying levels of injury severity when an immunologist’s expert testimony was highly technical, but they were able to do so when the testimony was moderately technical. This result was replicated and extended by Horowitz et al. (1996) using a toxic tort trial with multiple witnesses, including engineers, an environmentalist, and a clinical psychologist. Again, less complex language allowed jurors to make distinctions about liability between the different plaintiffs. This effect was stronger when jurors participated in a low information load condition in which they heard testimony from the four plaintiffs for whom they needed to make determinations, as opposed to a high information load condition in which they also heard testimony from four additional plaintiffs. Therefore, the jurors were better equipped to differentially assign liability when they had less evidence to process and it was presented in a comprehensible manner. Getting Away with Highly Technical Testimony. Several studies suggest that there are certain situations in which highly technical testimony may be as desirable, or possibly even more desirable, than less complex testimony. Specifically, more complex testimony may be persuasive when jurors expect complex testimony, such as when an expert comes from a highly technical field or has prestigious credentials. Horowitz et al. (2001) found that jurors were more likely to vote for a plaintiff when the experts clearly supporting the plaintiff spoke in a highly technical manner. In a condition in which jurors heard testimony that clearly favored the plaintiff, highly technical experts enhanced perceived credibility. The authors explained this result in terms of juror expectations of the primary experts in the case: engineers, biologists, and physicians. Jurors likely expect such professionals to use jargon, whereas they may not expect technical terminology from mental health professionals (who played a relatively small role in this case). Cooper, Bennett, and Sukel (1996) varied the complexity of testimony from an expert for the plaintiff in a civil tort case. High complexity testimony was characterized by technical jargon, while low complexity testimony included less scientific terminology and language that could be more easily understood by laypersons. Participants voted with the plaintiff after hearing high complexity testimony, but only when the expert was described as an accomplished researcher from a prestigious university, who served as editor-in-chief of a biology journal. A similar design which also included a manipulation of expert pay found an interaction between complexity and pay (Cooper & Neuhaus, 2000). In the high complexity condition, verdicts consistent with the expert’s testimony decreased as the expert’s pay increased from $200 to $350 to $750 per hour. Jurors who viewed the low complexity testimony voted for the plaintiff about 50% of the time, regardless of the expert’s pay schedule. Overall,

572

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

the expert was most persuasive when his testimony was presented in clear, easy to understand language, regardless of how much he was being paid. However, when the testimony was complex, mock jurors used the expert’s credentials and pay scale as the basis for their judgments. Although these findings could be interpreted to suggest that experts who want to be persuasive should charge smaller fees or should increase the complexity of their testimony if they are highly qualified, a more professionally responsible interpretation is that experts should work to reduce the complexity of their testimony. Jurors may be willing to tolerate complex information in some situations, but purposefully giving technically complex testimony is at best a high risk gambit that could ultimately backfire and harm the parties involved in the case. Principle 2: Clinical Knowledge The second evidence-based principle of effective testimony is that mental health experts will be more persuasive when they include information about clinical experience and knowledge in their testimony. Mental health experts provide opinions to the court about a variety of issues and the basis for their opinions can range from purely experience-based to purely research-based, with many combinations in between. In the mental health professions, experience-based knowledge is often referred to as clinical knowledge, and we use these terms interchangeably in this chapter. Because most clinical methods have at least some empirical basis or scientific support, experts have some flexibility in choosing whether to emphasize the clinical or empirical basis for their opinions. Survey research with judges and potential jurors suggests that testimony about clinical knowledge and involvement in clinical practice may be especially important to triers of fact. Redding, Floyd, and Hawk (2001) asked 59 judges in Virginia to rank the importance of various types of expert evidence in insanity cases. Of the eight potential pieces of evidence, clinical diagnoses and mental illness were ranked first and second, whereas information about diagnostic reliability and statistics about the relation between crime and diagnoses were ranked fifth and eighth, respectively. Boccaccini and Brodsky (2002) surveyed 488 jury-eligible community members about the types of witnesses they would be most likely to believe and found that 82% reported that they would be most likely to believe an expert who spends most of his/her time seeing patients, as opposed to experts who focused on teaching or other scholarly work. The most common framework for studying the influence of clinically-based testimony is to compare it to actuarially-based testimony. Findings from these studies suggest that judges and jurors do indeed prefer clinically-based testimony. Actuarial vs. Clinically Based Testimony. Actuarial judgments are sometimes referred to as being made mechanically, because they require the use of a computer or a formula. Actuarial testimony is typically provided in the form of a probability or percentage. In contrast, clinical judgment testimony is based on the expert’s professional experience and first-hand knowledge of the issue being debated in court. The accuracy of clinical and actuarial based judgments has been the subject of great controversy (Grove & Meehl, 1996). Dawes, Faust, and Meehl (1989) evaluated the accuracy of clinical and actuarial predictions across 100 comparative studies. They reported that “in virtually every one of these studies, the actuarial method has equaled or surpassed the clinical method, sometimes slightly and sometimes substantially” (p.1669).

Testifying in Court

573

Despite the clear research support for actuarial methods, clinical judgment is still used to some degree in most professional settings. Most forensic evaluations require evaluators to form judgments about functioning with respect to a legal criterion, and actuarial models are not available for most of these types of evaluations. Moreover, many actuarial models used by mental health professionals require information that is based, in part, on clinical judgment. For example, actuarial models used to predict risk for future violence often require information about psychopathy. The most frequently used and research supported psychopathy measure, the Psychopathy Checklist-Revised (PCL-R; Hare, 2003), requires evaluators to make a series of structured clinical judgments that are based on the evaluator’s training and experience with the instrument. Thus, evaluators who use actuarial methods often have considerable leeway in how they choose to explain the basis of their opinions to the court. The Preference for Clinically Based Testimony. A number of studies have compared the effects of actuarial- and clinically-based expert-witness testimony. These studies have compared testimony based on anecdotal case histories to testimony based on empirical data in a variety of contexts, including violence risk assessment in a civil commitment case, dangerousness in a capital sentencing trial, and personal injury trials. Table 21.2 summarizes how researchers have manipulated the clinical vs. empirical basis of expert testimony in experimental studies. Krauss and colleagues have conducted a series of studies examining actuarial and clinical predictions of dangerousness by a psychologist in the sentencing phase of a death penalty trial. In two of these studies, jurors’ ratings of dangerousness and their confidence in those ratings were highest following exposure to clinical opinion testimony, which was based on a diagnosis of sociopathy and the expert’s years of experience (Krauss & Lee, 2003; Krauss & Sales, 2001). Actuarial testimony, based on the use of the Violence Risk Appraisal Guide (VRAG), was viewed less favorably. Krauss and Sales (2001) found that these results remained even in the presence of cross-examination or a competing expert. The most recent addition to this line of research suggests that experts and attorneys may need to prime, or prepare, jurors to be ready to process research-based testimony. Krauss, Lieberman, and Olson (2004) examined the effect of preparing jurors to hear research-based testimony of the effectiveness of testimony based on clinical opinion, an actuarial instrument (VRAG), and guided professional judgment (HCR-20). Juror processing mode was manipulated by presenting participants with a list of math problems to complete (rational processing) or asking them to draw a picture that expressed their current emotional state (experiential processing) before reading a trial transcript. As expected, mock jurors’ assessments of future dangerousness were more influenced by the judgment-based testimony in the experiential condition, while jurors in the rational condition were more influenced by the actuarial testimony. This finding suggests that experts and attorneys should work together to prime or prepare jurors for the content of their testimony. For example, an expert presenting actuarial testimony might walk jurors through a simple actuarial problem, and an expert presenting clinically-based testimony might ask jurors to assume the role of a patient or imagine a certain set of circumstances. Bornstein (2004) conducted two experiments in which jurors read a summary of a personal injury suit that contained experts for the plaintiff (statistician) and defense

574

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

TABLE 21.2 Evidence Based Principle 2: Mental health experts will be more persuasive when they include information about clinical experience and knowledge in their testimony Examples of experimental manipulations of clinical knowledge and experience Studies Bornstein (2004) Exp. 1 and 2 (plaintiff: statistician) (defense: scientist/doctor)

Claussen-Schultz (2002) Exp. 3 (psychologist)

Diamond & Casper (1992) (not indicated)

Gelinas & Alain (1993) (psychologist)

Guy & Edens (2003) (psychologist)

Krauss & Lee (2003) Krauss et al. (2004) Krauss & Sales (2001) (psychologist)

Kwartner et al. (2006) (psychologist)

Clinical

Empirical

Anecdotal evidence from three case histories of boys the same age as the plaintiff who were exposed to the same water supply and did not develop arthritis or other health problems Expert opinion based on evaluation of defendant’s risk of committing criminal acts while incarcerated A “yardstick” model, in which comparative data from similar firms that conducted business in competitive markets at the time of the defendant’s anticompetitive activity is presented

Experimental findings from lab research on animals that reveals that arthritis is not caused by environmental factors like lead poisoning

Testimony based on evaluation of defendant including results of psychological testing and diagnoses Defendant’s risk of future sexual violence based on expert’s clinical opinion after record review and Interview Based on the expert’s interview with defendant and his years of experience, he opines that the defendant is a “severe sociopath” and represents a danger to society Risk of reoffense communicated as a categorical message (i.e., high versus low)

Expert opinion based on research of risk factors predictive of violence in prison Presentation of a regression model, using time-series analyses of pricing patterns before, during, and after the price-fixing agreement to predict what prices would have been like during the period of price fixing had there been no illegal agreement Testimony based on statistical probabilities

Expert’s opinion about the defendant’s risk of future sexual violence based on his score on an actuarial instrument of risk (SORAG/Static 99) Based on the expert’s interview with the defendant and his use of the VRAG, he opined that the defendant represents a continuing danger to society Risk of reoffense communicated as a statistical message, either a percent likelihood or a frequency statement

(scientist vs. medical doctor). The defense expert’s testimony was based on either three case histories or a lab experiment. Mock jurors in both studies showed a preference for the clinically-based testimony. The results from both experiments converged on a finding that jurors who read testimony from the defense expert about experimental evidence were more likely to find the defendant liable than those who read testimony about the anecdotal case histories. This result was especially likely when the plaintiff’s expert described that the incidence of the condition (arthritis) was high as

Testifying in Court

575

opposed to low. Similar findings have also been reported by Gelinas and Alain (1993), who found that clinically-based findings were considered more useful than statistical findings and that an expert presenting clinically-based findings was more competent and professional than an expert presenting statistical findings. The potential benefits of combining clinical and actuarial testimony. Bornstein’s (2004) second study manipulated the presence or absence of both experimental and anecdotal testimonies, so that it was possible for a juror to read a defense expert’s presentation of experimental data, anecdotal information, neither, or both. Overall, results from this second study again suggested that jurors preferred clinically-based testimony. Mock jurors were less likely to find the defendant liable when the expert presented anecdotal evidence than when it was absent. However, findings from this second study also indicated that the defense expert received higher credibility ratings when presenting both anecdotal and experimental testimony than when presenting only experimental testimony. Therefore, the addition of anecdotal evidence to experimental testimony increased jurors’ perceptions of the expert’s credibility. Findings from a recent study examining judges’ preferences for testimony about risk for future violence also suggest that combining clinical and actuarial information during testimony may be perceived as especially useful by triers of fact. Kwartner, Lyons, and Boccaccini (2006) examined judges’ preferences for risk communication messages in a hypothetical civil commitment case. Judges preferred a categorical message (high risk) over probabilistic (76% likelihood) or frequency (76 out of every 100 people with similar features will commit a violent act towards others) messages. Of the 110 judges participating in the study, 62 (56%) reported that they would prefer testimony containing both categorical and numerical (probabilistic or frequency) formats. Only 16 (14%) expressed a preference for purely numerical testimony. Although the categorical testimony format used in this study was not directly tied to either clinically-based or actuarially-based information, the findings clearly indicated that judges did not prefer the two types of risk communication messages that were clearly based on actuarial methods. Principle 3: Case-Specificity The third evidence-based principle of effective testimony is that testimony becomes more persuasive as it becomes more case specific. One aspect of expert testimony that has been manipulated in experimental research is the extent to which the expert’s testimony is used to educate the jury in a general manner or to apply information directly to a specific issue being decided in the case. This aspect of expert testimony can be conceptualized as a continuum, ranging from purely educative to conclusively evaluative, with several intermediate points in between. At the educative endpoint of the continuum, for example, an expert can provide testimony about predictors of risk for recidivism or common deficits in adaptive functioning among people with mental retardation. A purely educative expert presents an overview of research or professional practices without speaking directly to the case at hand. Moving from this educative endpoint toward more evaluative content, experts explain research results or professional standards by applying them to a hypothetical situation that pertains to the legal issue in question. However, experts providing hypothetical testimony do not offer an opinion as to a particular individual’s functioning or an issue being decided in the case. Approaching the evaluative end of the

576

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

continuum, an expert provides a link between the research literature or professional standards and specific issues relating to the current case, although they may not have personally evaluated the individual. The information used to make such a link can include collateral records, reports, and testimony from other experts. At the evaluative end of the continuum, the expert testifies about case-specific information and conclusions based on an in-person assessment of the individual. Case-Specific Testimony and Case Outcomes. Studies that have examined the impact of case-specific testimony on case outcomes have generally found that testimony is least likely to exert the expected impact on jurors when it is purely educative. For example, Brekke and Borgida (1988) compared the effects of educative testimony about reactions to rape to testimony in which a hypothetical scenario was used to help jurors connect research findings to the facts of a case. Jurors in the hypothetical testimony condition were more strongly persuaded by the expert testimony. They were more likely to convict the defendant and provided harsher sentences than jurors in educative expert or no expert conditions. Schnopp-Wyatt (1999) also found that hypothetical testimony, in which the expert stated that a hypothetical situation was consistent with a rape trauma survivor’s reactions, and case-specific testimony, in which the expert made a link between the research and the victim, both led to more guilty verdicts than general educative testimony. However, there were no significant differences between the hypothetical and case-specific conditions. Gabora, Spanos, and Joab (1993) manipulated testimony in a child sexual abuse case and found that jurors who viewed evaluative testimony in which the expert testified that the alleged victim had been sexually abused were more likely to convict than those who viewed educative testimony or no expert testimony. In a similar study, participants were more likely to convict a defendant accused of sexual abuse when they heard educative testimony and the child witness appeared prepared (calm and confident), as opposed to unprepared (nervous and fidgety; Kovera, Gresham, Borgida, Gray, & Regan, 1997). Participants who viewed an expert who linked research about the behavior of sexually abused children to the case through a hypothetical scenario were more likely to convict when the child witness appeared unprepared. This finding makes sense in light of the fact that the expert conceptualized abused children as confused and uncertain about describing the incident, which is consistent with the demeanor of the unprepared child. Therefore, when the child’s behavior was consistent with the expert’s description, the hypothetical testimony was more effective. The authors noted that providing the link between research and victim behavior “sensitize[d] jurors to variations in the child witness’s behavior” (Kovera et al., 1997, p. 188). Case-Specific Testimony and Expert Credibility. Several studies have found significant differences in the credibility attributed to evaluative and educative testimony. In each of these studies, experts providing evaluative testimony were rated more favorably than those providing educative testimony. For example, Marable (1998) reported that participants perceived an expert to be more competent and convincing when presenting testimony from an interview with a rape victim as opposed to relating research to a hypothetical situation. Stewart, Whiteside, and Golding (2000) found that a defense expert who testified in a recovered memory case about the effects of therapist suggestion was rated as more believable than an expert who testified about general memory processes. Schnopp-Wyatt (1999) found that experts who offered

Testifying in Court

577

either a specific opinion or a hypothetical example about the consistency of alleged victim’s behavior to rape trauma syndrome, PTSD, or other rape victims were seen as more influential than those providing educative testimony about general characteristics of rape victims. Kovera, Levy, Borgida, and Penrod (1994) examined the impact of three different types of expert testimony from a clinical psychologist about child sexual abuse on mocks jurors’ perceptions of the expert. In two of the conditions, the expert testified about working with the alleged victim in therapy. One of these conditions involved testimony about anatomically correct dolls, the other involved testimony about the truthfulness of the child’s allegations. In a third condition, the expert testified about “children’s typical emotional and behavioral reactions to sexual abuse” (p. 659) and stated that the alleged victim had shown these reactions. Testimony from the experts who had worked with the child in therapy was seen as more important and helpful than the less evaluative testimony. Jurors who viewed the treatment based testimony were also able to recall more details of the testimony than those viewed testimony from the nonevaluative expert. Principle 4: Certainty The fourth evidence-based principle of effective testimony is that persuasive experts express a high level of confidence in their opinions but do not express absolute confidence. Experts who testify in court are often asked to express the degree of confidence they have in their opinions and research with real jurors, experts, and attorneys suggests that expert certainty is an important component of effective testimony. Daniel Shuman and his colleagues have conducted two surveys of experts, attorneys, and jurors from real cases and asked them to identify characteristics of effective expert witnesses (Champagne et al., 1991; Shuman et al., 1994). Findings from both studies were consistent in showing that all parties believed that an expert’s “willingness to draw firm conclusions” was the second most important component of expert testimony, with the most important characteristic being the ability to convey technical information. In addition, attorneys identified being tentative as the most problematic expert-witness characteristic (Champagne et al., 1991). Experts can demonstrate confidence in many ways, including explicitly stating levels of confidence, implying levels of confidence through strongly worded testimony, and by expressing opinions about an ultimate legal issue. Table 21.3 summarizes how researchers have manipulated the certainty of expert testimony in experimental studies. Ultimate Issue Testimony and Expressed Confidence. Experts give ultimate issue testimony when they provide an opinion about the decision that the trier of fact must make. For example, an expert who states that a defendant is “competent to stand trial” would be giving an opinion about the ultimate legal issue. Forensic psychologists are divided in their preferences for ultimate opinion testimony. Some believe that it is inappropriate to testify to the ultimate legal issue (Tillbrook, Mumley, & Grisso, 2003), whereas others are opposed to limiting the scope of expert testimony by prohibiting ultimate opinions (Rogers & Ewing, 2003). The Federal Rules of Evidence were changed after the insanity acquittal of John Hinkley, Jr., to bar experts from providing ultimate issue testimony about insanity (FRE 704 b). However, some states require ultimate issue opinions in certain types of cases (e.g., Texas requires an ultimate opinion about competence to stand trial) and studies of forensic evaluation

578

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

reports (Heilbrun & Collins, 1995) and clinical practices (Borum & Grisso, 1996) suggest that forensic evaluators often provide ultimate issue opinions. Although few studies have examined the impact of expressed confidence or ultimate issue testimony from experts, findings from these studies seem to converge in suggesting that the most persuasive expert is one who expresses confidence in their opinion without appearing over-confident or omnipotent. Rogers, Bagby, Crouch, and Cutler (1990) found no statistically significant effects for the presence or absence of ultimate opinion testimony on mock jurors’ perceptions of insanity. However, there was a significant interaction, in which jurors who read testimony about diagnosis and impairment which suggested that the defendant was insane judged the defendant to be more insane at the time of the crime than jurors who heard testimony suggesting or stating that the defendant was sane. Thus, the diagnostic and impairment testimony arguing for insanity was more influential than ultimate issue testimony stating that the defendant was insane. In a follow up study, Rogers, Bagby, and Chow (1992) failed to find any effects for the presence of ultimate opinion testimony. Interestingly, there was an interaction between the content of the expert’s testimony and his expressed confidence. An expert who was 80% confident in his sanity opinion exerted significantly more influence on juror perceptions of insanity than experts who were 60% or 100% confident in their opinions. Although the authors did not find significant differences in ratings of clarity and believability for experts who did and did not give an ultimate opinion, jurors’ evaluations of expert clarity increased in relation to the level of confidence expressed by the expert. Ratings of expert believability were highest when the expert expressed high confidence in his opinion (80% or 100%). Fulero and Finkel (1991) examined differences in the influence of ultimate issue and penultimate issue testimony on mock jurors’ perceptions of insanity. An expert giving penultimate issue testimony speaks directly to the criteria which the trier of fact should consider when making decisions, but does not offer an ultimate issue opinion. For example, penultimate issue testimony in an insanity case might speak to whether or not the defendant knew what he was doing and, if so, knew what he was doing was wrong. Although Fulero and Finkel (1991) found no statistically significant differences between penultimate and ultimate opinion testimony, their study was underpowered (n < 25 in several conditions) for detecting differences in the three case outcomes available to jurors (insanity, first degree murder, and manslaughter). Nevertheless, their findings were clear in showing the ultimate issue testimony from the prosecution and a combination of ultimate issue testimony from both the defense and prosecution had little impact on jurors’ decisions. However, 51% of the jurors who heard uncontested penultimate issue testimony from the defense arguing that the defendant was insane found that the defendant was insane. Only 30% of those who heard uncontested ultimate issue testimony from the defense found that the defendant was insane. The effect-size for this difference is moderate in size (Phi = .21) and is consistent with Rogers et al.’s (1990; 1992) findings in suggesting that jurors may be most influenced by testimony that clearly and strongly speaks to the decisions they have to make, but leaves some room for them to exercise their own judgment. Slanted and Strongly Worded Testimony. Another way in which researchers have studied expert certainty is to manipulate the extent to which the expert’s conclusions

Testifying in Court

579

TABLE 21.3 Evidence-Based Principle 4: Persuasive experts express a high level confidence in their opinions but do express absolute confidence Examples of experimental manipulations of expert certainty Studies Brekke et al. (1991) (psychiatrist/polygrapher)

Fulero & Finkel (1991) (psychiatrist)

Rogers et al. (1992) (psychiatrist)

More Persuasive One-sided expert testimony, which was slanted in favor of the prosecution “. . . polygraph expert testified that the validity of polygraphic lie detection has been documented in many studies and the technique is well accepted in the scientific community.” Penultimate issue testimony from the defense, in which the expert testified about the defendant’s ability to think about the consequences of his behavior and his awareness of the wrongfulness of his acts Expert expressed 80% confidence in his sanity opinion during cross examination

Rogers et al. (1990) (psychiatrist)

Testimony stating that that defendant was insane in a nonconclusory manner

Rudy (1996) (psychiatrist)

Strongly worded testimony in support of the allegations of sexual abuse “Sally’s interactions with the dolls during the interview were highly sexualized . . . it is highly unlikely that Sally’s behavior’s are the result of normal sexual development or nonsexual trauma.”

Less Persuasive Balanced testimony, in which the expert acknowledged the limitations or shortcomings of the evidence “Polygraphic lie detection has been the subject of scientific controversy . . . some scientists even believe the technique has no validity.” Ultimate issue testimony, in which the defense expert answers the legal question of whether the defendant was sane or insane at the time of the offense

Expert expressed either 60% or 100% confidence in his sanity opinion during cross examination Ultimate opinion testimony, in which the expert agrees that the defendant’s mental disorder rendered him “unable to appreciate the nature and quality of his actions . . . or knowing that his actions were wrong” Neutral testimony regarding the allegations of sexual abuse “Sally’s interactions with the dolls during the interview were somewhat sexualized . . . Sally’s behaviors with the dolls are not inconsistent with the allegations of sexual abuse . . .”

are unambiguous in favoring one side of the case, or are more cautious or balanced in acknowledging possible limitations. The two studies that have manipulated this aspect of certainty indicate that jurors prefer unambiguous testimony that is strongly worded. For example, Brekke, Enko, Clavet, and Seelau (1991) manipulated whether the testimony was slanted in favor of the prosecution or balanced (see Table 21.3). In the balanced conditions, the expert discussed limitations of the evidence. Results indicated that, as expected, the slanted testimony yielded the highest conviction rates for both the prosecution and court-appointed experts. The slanted testimony was

580

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

also rated as being more useful and of higher quality than more balanced testimony that acknowledged the presence of some shortcomings. Rudy (1996) manipulated the strength of the expert’s testimony in a sexual abuse case. There were no significant differences in verdict between jurors hearing a high certainty expert statement and more neutral testimony (see Table 21.2). However, mock jurors rated the high certainty testimony as more credible than neutral testimony.

From Principles to Practice Together, findings from existing research suggest that the most influential testimony is testimony that is easy to understand, specific to the case, based on clinical knowledge, and stated with a high degree of certainty. The four evidence-based principles for effective testimony we have identified in this chapter are clearly interrelated. Testimony based on clinical knowledge may be influential because it is usually more clear and case-specific than research-based testimony. Case-specific testimony is, by definition, more clearly related to the case being decided and testimony is more likely to be case-specific when it is based on clinical knowledge. Experts who express a high degree of certainty in their opinions may be more persuasive because their testimony is clearer and easier to understand than balanced testimony. The extent to which experts can and should apply these principles in the courtroom will depend on a number of factors. First, the format of courtroom testimony requires that experts provide information by responding to attorney questions. The information that the attorney attempts to elicit from the expert may not necessarily be the information that the expert feels is most relevant or persuasive. For example, an attorney may choose to ask hypothetical questions instead of case-specific questions to limit the scope of the questions that can be asked about the client during cross examination. Many experts insist on pre-trial discussions with the attorneys who are calling them to testify. The purpose of pre-trial discussions is for the expert to ensure that the attorney is aware of the information that the expert will be able to provide, and that the expert is aware of the information that the attorney would like the expert to provide. Pre-trial discussions between the expert and attorney can prevent awkward situations in the courtroom in which the expert is unprepared to answer the attorney’s questions and the attorney is unprepared to ask questions about the expert’s opinions. Second, experts are bound by their professional ethical principles and must not violate these principles to improve the persuasiveness of their testimony. For example, the American Psychological Association’s Ethical Principles and Code of Conduct (APA, 2002) maintains that psychologists have a responsibility to communicate their conclusions using language that is understandable and “do not make false, misleading, or fraudulent statements”(p. 1067). If psychologists blindly followed our evidence-based principles for effective testimony without adherence to their professional ethical code they might give false testimony by overstating their confidence in an opinion or purposefully use highly complex testimony to improve their persuasiveness (if they have prestigious credentials).

Testifying in Court

581

Third, case characteristics should drive the expert’s testimony more than the principles identified in this chapter, and will place limits on what the expert can and cannot say in the courtroom. For example, forensic cases vary in complexity and in the information available for completing evaluations. The complexity of an expert’s testimony and the relevance of clinical and research knowledge will be driven by the characteristics of the case, and the expert will usually only have a limited amount of leeway in testifying about these issues. Other Resources for Experts There are many useful and popular how-to books available for clinicians interested in providing effective testimony. These guides for expert witnesses provide practical suggestions for witness preparation and extensive recommendations for effective courtroom presentation. Many of these guidebooks are based primarily on seasoned expert witnesses’ personal experiences (Brodsky, 1991, 1999, 2004, Nietzel & Dillehay, 1986, Shapiro, 1984). Stan Brodsky’s series of Testifying in Court books (1991, 1999, 2004) are highly readable and an invaluable resource for expert witnesses. Experts may also find it useful to review trial advocacy manuals, which are designed to provide attorneys with information and techniques that can be used to discredit or impeach mental health experts during cross examination (see e.g., Lubet, 1998, Malone & Zuier, 2000, Faust & Ziskin, 1988). Mental health professionals may consult these texts in an effort to prepare for the rigors of cross-examination. Finally, beginning experts should consult Barsky and Gould’s (2002) Clinicians in Court, which provides useful information about a variety of issues related to testifying, including the trial process, rules of testifying, and responding to subpoenas and court orders. References American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. Barsky, A.E., & Gould, J.W. (2002). Clinicians in court: A guide to subpoenas, depositions, testifying, and everything else you need to know. New York: Guilford. Blau, T.H. (1998). The psychologist as expert witness (2nd ed.) New York: Wiley. Boccaccini, M.T. & Brodsky, S.L. (2002). Believability of expert and lay witnesses: Implications for trial consultation. Professional Psychology: Research and Practice, 33, 384–388. Bornstein, B.H. (2004). The impact of different types of expert scientific testimony on mock jurors’ liability verdicts. Psychology, Crime, and Law, 10, 429–446. Borum, R., & Grisso, T. (1996). Establishing standards for criminal forensic reports: An empirical analysis. Bulletin of the American Academy of Psychiatry and Law, 24, 297–317. Brekke, N., & Bordiga, E. (1988). Expert psychological testimony in rape trials: A social cognitive analysis. Journal of Personality and Social Psychology, 55, 372–386. Brekke, N.J., Enko, P.J., Clavet, G., & Seelau, E. (1991). Of juries and court-appointed experts. Law and Human Behavior, 15, 451–475. Brodsky, S.L. (1991) Testifying in court: Guidelines and maxims for the expert witnesses. Washington D.C.: APA.

582

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

Brodsky, S.L. (1999). Expert witness: More maxims and guidelines for testifying in court. Washington D.C.: APA. Brodsky, S.L. (2004). Coping with cross-examination and other pathways to effective testimony. Washington D.C.: APA. Brodsky, S.L., & Anderer, S.J. (1999). Serving as an expert witness: Evaluations, subpoenas, and testimony. In F.W. Kaslow (Ed.), Handbook of couple and family forensics: A sourcebook for mental health and legal professionals (pp. 475–490). New York: Wiley. Bourgeois, M.J., Horowitz, I.A., & ForsterLee, L. (1993). Effects of technicality and access to trial transcripts on verdicts and information processing in a civil trial. Personality and Social Psychology Bulletin, 19, 220–227. Champagne, A., Shuman, D., & Whitaker, E. (1991). An empirical examination of the use of expert witnesses in American courts. Jurimetrics Journal, 31, 375–392. Chappelle, W., & Rosengren, K. (2001). Maintaining composure and credibility as an expert witness during cross-examination. Journal of Forensic Psychology Practice, 1, 51–67. Cooper, J., Bennett, E.A., & Sukel, H.L. (1996). Complex scientific testimony: How do jurors make decisions? Law and Human Behavior, 20, 379–394. Cooper, J., & Neuhaus, I.M. (2000). The “hired gun” effect: Assessing the effect of pay, frequency of testifying, and credentials on the perception of expert testimony. Law and Human Behavior, 24, 149–171. Dahir, V.B., Richardson, J.T., Ginsburg, G.P., Gatowski, S.I., Dobbin, S.A., & Merlino, M.M. (2005). Judicial application of Daubert to psychological syndrome and profile evidence: A research note. Psyc hology, Public Policy, and Law, 11, 62–82. Daubert v. Merrell Dow Pharmaceuticals, 509 US 579 (1993). Dawes, R.M., Faust, D., & Meehl, P.E. (1989). Clinical versus actuarial judgment. Science, 243, 1668–1674. Diamond, S.S., & Casper, J.D. (1992). Blindfolding the jury to verdict consequences: Damages, experts, and the civil jury. Law and Society Review, 26, 513–563. Dixon, L., & Gill, B. (2002). Changes in standards for admitting expert evidence in federal civil cases since the Daubert decision. Psychology, Public Policy, and Law, 8, 251–308. Erickson, B., Lind, E.A., Johnson, B.C., & O’Barr, W.M. (1978). Speech style and impression formation in a court setting: The effects of “powerful” and “powerless” speech. Journal of Experimental Social Psychology, 14, 266–279. Faust, D., & Ziskin, J. (1988). The expert witness in psychology and psychiatry. Science, 241, 31–34. ForsterLee, L., Horowitz, I.A., & Bourgeois, M.J. (1993). Juror competence in civil trials: Effects of preinstruction and evidence technicality. Journal of Applied Psychology, 78, 14–21. Frye v. United States, 293 F.1013 (D.C. Cir. 1923). Fulero, S.M., & Finkel, N.J. (1991). Barring ultimate issue testimony: An insane rule? Law and Human Behavior, 15, 495–507. Gabora, N.J., Spanos, N.P., & Joab, A. (1993). The effects of complainant age and expert psychological testimony in a simulated child sexual abuse trial. Law and Human Behavior, 17, 103–119. Gatowski, S.I., Dobbin, S.A., Richardson, J.T., Ginsburg, G.P., Merlino, M.L., & Dahir, V. (2001). Asking the gatekeepers: A national survey of judges on judging expert evidence in a post-Daubert world. Law and Human Behavior, 25, 433–458. Gelinas, L., & Alain, M. (1993). Expertise psycho-juridique: Une evaluation de deux types de rapports et de leur influence sur la perception de jures potentiels. Canadian Journal of Behavioral Sciences, 25, 175–192.

Testifying in Court

583

Gibbs, M.S., Sigal, J., Adams, B., & Grossman, B. (1989). Cross-examination of the expert witness: Do hostile tactics affect impressions of a simulated jury? Behavioral Sciences and the Law, 7, 275–281. Greene, E., Downey, C., & Goodman-Delahunty, J. (1999). Juror decisions about damages in employment discrimination cases. Behavioral Sciences and the Law, 17, 107–121. Groscup, J.L. (2004). Judicial decision making about expert testimony in the aftermath of Daubert and Kumho. Journal of Forensic Psychology Practice, 4, 57–67. Groscup, J.L., Penrod, S.D., Studebaker, C.A., Huss, M.T., & O’Neil, K.M. (2002). The effects of Daubert on admissibility of expert testimony in state and federal criminal cases. Psychology, Public Policy, and Law, 8, 339–372. Grove, W.M., & Meehl, P.E. (1996). Comparative efficiency of informal (subjective, impressionistic) and formal (mechanical, algorithmic) prediction procedures: The clinicalstatistical controversy. Psychology, Public Policy, and Law, 2, 293–323. Gutheil, T.G. (2000). The presentation of forensic psychiatric evidence in court. Israel Journal of Psychiatry and Related Science, 37, 137–144. Hare, R.D. (2003). The Hare Psychopathy Checklist—Revised manual (2nd ed.). North Tonawanda, New York: Multi-Health Systems. Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at the time of the offense: Report characteristics: Professional Psychology: Research and Practice, 26, 61–67. Horowitz, I.A., Bordens, K.S., Victor, E., Bourgeois, M.J., & ForsterLee, L. (2001). The effects of complexity on jurors’ verdicts and construction of evidence. Journal of Applied Psychology, 86, 641–652. Horowitz, I.A., ForsterLee, l., Brolly, I. (1996). Effects of trial complexity on decision making. Journal of Applied Psychology, 81, 757–768. Kovera, M.B., Gresham, A.W., Borgida, E., Gray, E., & Regan, P.C. (1997). Does expert psychological testimony inform or influence juror decision making? A social cognitive analysis. Journal of Applied Psychology, 82, 178–191. Kovera, M.B., Levy, R.J., Borgida, E., & Penrod, S.D. (1994). Expert testimony in child sexual abuse cases: Effects of expert evidence type and cross-examination. Law and Human Behavior, 18, 653–674. Kovera, M.B., & McAuliff, B.D. (2000). The effects of peer review and evidence quality on judge evaluations of psychological science: Are judges effective gatekeepers? Journal of Applied Psychology, 85, 574–586. Krauss, D.A., & Lee, D.H. (2003). Deliberating on dangerousness and death: Jurors’ ability to differentiate between expert actuarial and clinical predictions of dangerousness. International Journal of Law and Psychiatry, 26, 113–137. Krauss, D.A., Leiberman, J.D., & Olson, J. (2004). The effects of rational and experiential information processing of expert testimony in death penalty cases. Behavioral Sciences and the Law, 22, 801–822. Krauss, D.A., & Sales, B.D. (2001). The effects of clinical and scientific expert testimony on juror decision making in capital sentencing. Psychology, Public Policy, and Law, 7, 267–310. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Kwartner, P.P., Lyons, P.M., & Boccaccini, M.T. (2006). Judges’ risk communication preferences in risk for future violence cases. International Journal of Forensic Mental Health, 5, 185–194. Levine, S.V. (1983). The role of the mental health expert witness in family law disputes. Canadian Journal of Psychiatry, 28, 255–258.

584

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

Lubet, S. (1998). Expert testimony: A guide for expert witnesses and the lawyers who examine them. Notre Dame, IN: NITA. Malone, D.M., & Zwier, P.J. (2000). Effective expert testimony. Notre Dame, IN: NITA. Marable, B.E. (1998). Influence of expert testimony and victim resistance on mock jurors’ decision and judgments concerning acquaintance rape (doctoral dissertation, Northern Illinois University, 1998). Dissertation Abstracts International, 59, 5096. Nietzel, M.T., & Dillehay, R.C. (1986). Psychological consultation in the courtroom. New York: Pergamon Press. Parry, J.W. (2004). Expert evidence and testimony: Daubert vs. Frye. Mental and Physical Disability Law Reporter, 28, 136–140. Petty, R.E., & Cacioppo, J.T. (1986). Communication and persuasion: Central and peripheral routes to attitude change. New York: Pergamon Press. Redding, R.E., Floyd, M.Y., & Hawk, G.L. (2001). What judges and lawyers think about the testimony of mental health experts: A survey of the courts and bar. Behavioral Sciences and the Law, 19, 583–594. Rogers, R., Bagby, R.M., & Chow, M.K. (1992). Psychiatrists and the parameters of expert testimony. International Journal of Law and Psychiatry, 15, 387–396. Rogers, R., Bagby, R.M., Crouch, M., & Cutler, B. (1990). Effects of ultimate opinion on juror perceptions of insanity. International Journal of Law and Psychiatry, 13, 225–232. Rogers, R., & Ewing, C.P. (2003). The prohibition of ultimate opinions: A misguided enterprise. Journal of Forensic Psychology Practice, 3, 65–75. Rudy, L.A. (1996). Custody and expert opinion as factors in sexual abuse cases (doctoral dissertation, Ohio State University, 1996). Dissertation Abstracts International, 57, 3422. Schnopp-Wyatt, E. N. (1999). Expert testimony in rape trials: Prejudicial or probative? (Doctoral dissertation, University of Illinois at Chicago, 1999). Dissertation Abstracts International, 60, 6425. Shapiro, D.L. (1984). Psychological evaluation and expert testimony: A practical guide to forensic work. New York: Van Nostrand Reinhold Company. Shuman, D., Champagne, A., & Whitaker, E. (1996a). Assessing the believability of expert witnesses: Science in the jury box. Jurimetrics Journal, 37, 23–32. Shuman, D., Champagne, A., & Whitaker, E. (1996b). Juror assessments of the believability of expert witnesses: A literature review. Jurimetrics Journal, 36, 371–382. Shuman, D., Whitaker, E., & Champagne, A. (1994). An empirical examination of the use of expert witnesses in the courts—Part II: A three city study. Jurimetrics Journal, 34, 193–208. Stewart, T.L., Whiteside, S.P., & Golding, J.M. (2000). The effectiveness of expert witnesses in civil trials involving repressed memories of sexual assault. American Journal of Forensic Psychology, 18, 27–62. Tillbrook, C., Mumley, D., & Grisso, T. (2003). Avoiding expert opinions on the ultimate legal question: The case for integrity. Journal of Forensic Psychology Practice, 3, 77–87. Wilkinson, A.P. (1997). Forensic psychiatry: The making and breaking of expert opinion testimony. The Journal of Psychiatry and Law, 25, 51–112.

Appendix Studies Reviewed to Identify Evidence-Based Principles of Effective Testimony Bornstein, B.H. (2004). The impact of different types of expert scientific testimony on mock jurors’ liability verdicts. Psychology, Crime, and Law, 10, 429–446.

Testifying in Court

585

Branca, R.L. (2003). The effect of expert witness testimony about rape trauma reactions on juror decision making (doctoral dissertation, University of Kentucky, 2003). Dissertation Abstracts International, 64, 631. Brekke, N., & Bordiga, E. (1988). Expert psychological testimony in rape trials: A social cognitive analysis. Journal of Personality and Social Psychology, 55, 372–386. Brekke, N.J., Enko, P.J., Clavet, G., & Seelau, E. (1991). Of juries and court-appointed experts. Law and Human Behavior, 15, 451–475. Bourgeois, M.J., Horowitz, I.A., & ForsterLee, L. (1993). Effects of technicality and access to trial transcripts on verdicts and information processing in a civil trial. Personality and Social Psychology Bulletin, 19, 220–227. Burnstein, V.J. (1995). Effects of a defense psychological expert witness in acquaintance rape trials (doctoral dissertation, University of Texas at Austin, 1995). Dissertation Abstracts International, 56, 5830. Claussen-Schulz, A.M. (2002). The danger of asking jurors about danger: An investigation of mock jury sentencing in capital cases (doctoral dissertation, University of Nebraska, 2002). Dissertation Abstracts International, 63, 3513. Cooper, J., Bennett, E.A., & Sukel, H.L. (1996). Complex scientific testimony: How do jurors make decisions? Law and Human Behavior, 20, 379–394. Cooper, J., & Hall, J. (2000). Reaction of mock jurors to testimony of a court appointed expert. Behavioral Sciences and the Law, 18, 719–729. Cooper, J., & Neuhaus, I.M. (2000). The “hired gun” effect: Assessing the effect of pay, frequency of testifying, and credentials on the perception of expert testimony. Law and Human Behavior, 24, 149–171. Couch, J.V., & Sigler, J.N. (2002). Gender of an expert witness and the jury verdict. The Psychological Record, 52, 281–287. Crowley, M.J., O’Callaghan, M.G., & Ball, P.J. (1994). The juridical impact of psychological expert testimony in a simulated child sexual abuse trial. Law and Human Behavior, 18, 89–105. Davis, K.M. (2003). The impact of the label psychopath on mock juror sentencing decisions in a capital trial. Unpublished master’s thesis, Sam Houston State University, Huntsville, Texas. Devenport, J.L. & Cutler, B.L. (2004). Impact of defense-only and opposing eyewitness experts on juror judgments. Law and Human Behavior, 28, 569–576. Devenport, J.L., Stinson, V., Cutler, B., & Kravitz, D.A. (2002). How effective are the cross-examination and expert testimony safeguards? Jurors’ perceptions of the suggestiveness and fairness of biased lineup procedures. Journal of Applied Psychology, 87, 1042–1054. Diamond, S.S., & Casper, J.D. (1992). Blindfolding the jury to verdict consequences: Damages, experts, and the civil jury. Law and Society Review, 26, 513–563. Edens, J.F., Desforges, D.M., Fernandez, K., & Palac, C.A. (2004). Effects of psychopathy and violence risk testimony on mock juror perceptions of dangerousness in a capital murder trial. Psychology, Crime, and Law, 10, 393–412. Feinstein, S.J. (2002). Expert psychological testimony: The influence of gender and language intensity on juror decision making (doctoral dissertation, 2002). Dissertation Abstracts International, 63, 522.

586

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

ForsterLee, L., Horowitz, I.A., & Bourgeois, M.J. (1993). Juror competence in civil trials: Effects of preinstruction and evidence technicality. Journal of Applied Psychology, 78, 14–21. Fox, S.G., & Walters, H.A. (1986). The impact of general versus specific expert testimony and eyewitness confidence upon mock juror judgment. Law and Human Behavior, 10, 215–228. Fulero, S.M., & Finkel, N.J. (1991). Barring ultimate issue testimony: An insane rule? Law and Human Behavior, 15, 495–507. Gabora, N.J., Spanos, N.P., & Joab, A. (1993). The effects of complainant age and expert psychological testimony in a simulated child sexual abuse trial. Law and Human Behavior, 17, 103–119. Geiselman, R.E., Putman, C., Korte, R., Shahriary, M., Jachimowicz, G., & Irzhevsky, V. (2002). Eyewitness expert testimony and juror decisions. American Journal of Forensic Psychology, 20, 21–36. Gelinas, L., & Alain, M. (1993). Expertise psycho-juridique: Une evaluation de deux types de rapports et de leur influence sur la perception de jures potentiels. Canadian Journal of Behavioral Sciences, 25, 175–192. Greenberg, J., & Wursten, A. (1988). The psychologist and psychiatrist as expert witnesses: Perceived credibility and influence. Professional Psychology: Research and Practice, 19, 373–378. Greene, E., Downey, C., & Goodman-Delahunty, J. (1999). Juror decisions about damages in employment discrimination cases. Behavioral Sciences and the Law, 17, 107–121. Griffith, J.D., Libkuman, T.M., Dodd, J.D., Sharif, Z., & Dickinson, J.J. (2002). The effects of expert testimony on mock jurors decision making and memory. American Journal of Forensic Psychology, 20, 69–80. Griffith, J.D., Libkuman, T.M., & Poole, D.A. (1998). Repressed memories: The effects of expert testimony on mock jurors’ decision making. American Journal of Forensic Psychology, 16, 5–23. Guy, L.S., & Edens, J.F. (2003). Juror decision-making in a mock sexually violent predator trial: Gender differences in the impact of divergent types of expert testimony. Behavioral Sciences and the Law, 21, 215–237. Horowitz, I.A., Bordens, K.S., Victor, E., Bourgeois, M.J., & ForsterLee, L. (2001). The effects of complexity on jurors’ verdicts and construction of evidence. Journal of Applied Psychology, 86, 641–652. Horowitz, I.A., ForsterLee, l., Brolly, I. (1996). Effects of trial complexity on decision making. Journal of Applied Psychology, 81, 757–768. Hosch, H.M., Beck, E.L., & McIntyre, P. (1980). Influence of expert testimony regarding eyewitness accuracy on juror decisions. Law and Human Behavior, 4, 287–296. Kovera, M.B., Gresham, A.W., Borgida, E., Gray, E., & Regan, P.C. (1997). Does expert psychological testimony inform or influence juror decision making? A social cognitive analysis. Journal of Applied Psychology, 82, 178–191. Kovera, M.B., Levy, R.J., Borgida, E., & Penrod, S.D. (1994). Expert testimony in child sexual abuse cases: Effects of expert evidence type and cross-examination. Law and Human Behavior, 18, 653–674.

Testifying in Court

587

Kovera, M.B., McAuliff, B.D., & Herbert, K.S. (1999). Reasoning about scientific evidence: effects of juror gender and evidence quality on juror decisions in a hostile work environment case. Journal of Applied Psychology, 84, 362–375. Krauss, D.A., & Lee, D.H. (2003). Deliberating on dangerousness and death: Jurors’ ability to differentiate between expert actuarial and clinical predictions of dangerousness. International Journal of Law and Psychiatry, 26, 113–137. Krauss, D.A., Leiberman, J.D., & Olson, J. (2004). The effects of rational and experiential information processing of expert testimony in death penalty cases. Behavioral Sciences and the Law, 22, 801–822. Krauss, D.A., & Sales, B.D. (2001). The effects of clinical and scientific expert testimony on juror decision making in capital sentencing. Psychology, Public Policy, and Law, 7, 267–310. Kwartner, P.P., Lyons, P.M., & Boccaccini, M.T. (in press). Judges’ risk communication preferences in risk for future violence cases. International Journal of Forensic Mental Health. Leippe, M.R., Eisenstadt, D., Rauch, S.M., & Seib, H.M. (2004). Timing of eyewitness expert testimony, jurors’ need for cognition, and case strength as determinants of trial verdicts. Journal of Applied Psychology, 89, 524–541. Loftus, E.F. (1980). Impact of expert psychological testimony on the unreliability of eyewitness identification. Journal of Applied Psychology, 65, 9–15. Lorentzen. E. (1994). Effects of expert testimony about eyewitness identifications on the sensitivity of jury decision making (doctoral dissertation, Adelphi University, 1994). Dissertation Abstracts International, 55, 5588. Marable, B.E. (1998). Influence of expert testimony and victim resistance on mock jurors’ decision and judgments concerning acquaintance rape (doctoral dissertation, Northern Illinois University, 1998). Dissertation Abstracts International, 59, 5096. McAuliff, B.D. (2000) Juror need for cognition and sensitivity to methodological flaws in expert evidence. Unpublished doctoral dissertation, Florida International University, Miami. McKimmie, B.M., Newton, C.J., Terry, D.J., & Schuller, R.A. (2004). Jurors’ responses to expert witness testimony: The effects of gender stereotypes. Group Processes and Intergroup Relations, 7, 131–143. Memon, A., & Shuman, D.W. (1998). Juror perception of experts in civil disputes: The role of race and gender. Law and Psychology Review, 22, 179–197. Miyatake, R.K. (1998). White racial identity attitudes as predictors of preference and credibility of African American, Asian American, and White female and male psychologists (doctoral dissertation, University of Maine, 1998). Dissertation Abstracts International, 59, 6074. Rogers, R., Bagby, R.M., & Chow, M.K. (1992). Psychiatrists and the parameters of expert testimony. International Journal of Law and Psychiatry, 15, 387–396. Rogers, R., Bagby, R.M., Crouch, M., & Cutler, B. (1990). Effects of ultimate opinion on juror perceptions of insanity. International Journal of Law and Psychiatry, 13, 225–232. Rudy, L.A. (1996). Custody and expert opinion as factors in sexual abuse cases (doctoral dissertation, Ohio State University, 1996). Dissertation Abstracts International, 57, 3422.

588

Phylissa P. Kwartner, M.A. and Marcus T. Boccaccini

Russo-Devosa, Y.M.C.G. (2002). The effect of expert testimony on juror accuracy (doctoral dissertation, The Pennsylvania State University, 2002). Dissertation Abstracts International, 63, 2656. Schnopp-Wyatt, E. N. (1999). Expert testimony in rape trials: Prejudicial or probative? (doctoral dissertation, University of Illinois at Chicago, 1999). Dissertation Abstracts International, 60, 6425. Schuller, R.A., & Cripps, J. (1998). Expert evidence pertaining to battered women: The impact of gender of expert and timing of testimony. Law and Human Behavior, 22, 17–31. Schuller, R.A., & Hastings, P.A. (1996). Trials of battered women who kill: The impact of alternative forms of expert evidence. Law and Human Behavior, 20, 167–187. Schuller, R.A., McKimmie, B.M., & Janz, T. (2004). The impact of expert testimony in trials of battered women who kill. Psychiatry, Psychology, and Law, 11, 1–12. Schuller, R.A., & Rzepa, S. (2002). Expert testimony pertaining to battered woman syndrome: Its impact on jurors’ decisions. Law and Human Behavior, 26, 655–673. Schuller, R.A., Terry, D., & McKimmie, B. (2001). The impact of an expert’s gender on jurors’ decisions. Law and Psychology Review, 25, 59–79. Schuller, R.A., Wells, E., Rzepa, S., & Klippenstine, M.A. (2004). Rethinking battered woman syndrome evidence: The impact of alternative forms of expert testimony on mock jurors’ decisions. Canadian Journal of Behavioural Science, 36, 127–136 Stewart, T.L., Whiteside, S.P., & Golding, J.M. (2000). The effectiveness of expert witnesses in civil trials involving repressed memories of sexual assault. American Journal of Forensic Psychology, 18, 27–62. Sugarman, D.B., & Boney-McCoy, S. (1997). Impact of expert testimony on the believability of repressed memories. Violence and Victims, 12, 115–126. Swenson, R.A., Nash, D.L., & Roos, D.C. (1984). Source credibility and perceived expertness of testimony in a simulated child-custody case. Professional Psychology: Research and Practice, 15, 891–898. Terrance, C., & Matheson, K. (2003). Undermining reasonableness: Expert testimony in a case involving a battered woman who kills. Psychology of Women Quarterly, 27, 37–45. Vondergeest, L., Honts, C.R., & Devitt, M.K. (1993). Effects of juror and expert witness gender on jurors’ perceptions of an expert witness. Modern Psychological Studies, 1, 1–6.

Index

A ABA Criminal Justice Mental Health Standards, 243 Ability tests, in personal injury evaluations, 497 Abuse excuse, 225 Academic achievement in juvenile sex offender case, 406 and youth violence risk, 390 Accountability standards, 17 Accuracy of clinical vs. actuarial-based judgments, 572 in forensic psychological reports, 544 Achievement tests, for juvenile offenders, 325 Ackermann-Schoenderf Scales for Parent Evaluation of Custody (ASPECT), 425 Activities of Daily Living (ADLs) assessing in independent medical examinations, 456, 457 and requirements for Social Security Administration disability status, 464 Actuarial-based testimony benefits of combining with clinically based, 575 vs. clinically-based, 572–573 Actuarial instruments, 153, 396 anchoring sex offender assessments with, 197 for sexually violent offenders, 194, 203–204 summary and critique of, 162–164 superiority over clinical predictions, 159 underestimation of risk for SVP evaluees, 195 use with sex offenders, 193 for violence risk assessment, 159–160 vs. unstructured clinical judgments, 395 for youth violence risk assessment, 395 Adjudicative competency adolescent case example, 307–308 adult case example, 146 in adolescents, 291, 301 assessment of, 83–84 Canadian standard for, 292 constitutional definitions of, 77–78 constitutional structure, 76–84

as construct, 76, 84 domains and subdomains, 85–86 evaluations for adults, 75 growing importance for juveniles, 292–293 history and significance, 75–76 iatrogenic, 80 inappropriate referrals for, 78 and involuntary medication, 80–81 legal process for adolescents, 293–294 multicultural considerations in adolescents, 301–302 as open-textured construct, 76 raising issue in court, 78–79 to refuse psychotropic treatment, 77 relating psychopathology or intellective functioning to, 76–77 sharing examiner opinions with defendant, 95 to stand trial with assistance of counsel, 78 time limits for restoration, 79–80 to waive counsel, 77 to waive insanity defense, 77 Adjudicative competency evaluations for adolescents, 294–295, 297–307 assessment of malingering and deception, 93–94 assessment strategy for, 84–88 case example, 95–99 comparative validity and gray area cases, 88–89 conceptualizing and performing, 84 conducting, 89–95 detailed inquiry stage, 92–93 empirical infrastructure of, 101 inception stage, 90–91 multisource perspective assessments, 94–95 pre-interview stage, 89–90 process approach to, 91 reconnaissance phase, 91–92 refusal of interview issues, 96 terminating examination, 95 Adjustment to incarceration, 230 Administrative law judge, SSI/SSDI hearings by, 462 Admissibility hearings, 567–568 589

590

Index

Admissibility of evidence, 484 criteria for tests, 495 for expert testimony, 566 factors influencing judges’ decisions, 567 psychological syndrome evidence, 567 Adolescent-limited delinquency, 323, 336, 350, 385, 387, 392 Adolescent Psychopathology Scale, 368 Adolescent psychopathy. See also Child psychopathy amenability to treatment, 371 and antisocial conduct, 370–371 assessing, 347–348 case example, 374 and coexisting psychopathology, 366–368 construct validity, 364–365 current state of knowledge, 356 development from early age, 351–353 differentiation from DSM-IV disruptive disorders, 348–351 factor structure for, 360–361 inter-rater reliability of measures, 359–360 internal consistency of measures, 356–359 measurement of, 353–356 and performance tasks, 368–370 and personality, 365–366 and predictiveness of delinquency, 370 temporal stability of, 363 test-retest reliability of measures, 361–364 Adolescent violence risk, 387–388 among racial and ethnic minority groups, 403–404 assessing, 385–386, 391 case classification, 401 case example, 405–406 communication of, 394 community factors, 390–391 contexts of assessment, 391 determining proper focus of assessment, 393 and developmental pathways, 386–387 developments in risk assessment techniques, 392 EARL-20B and EARL-21G for, 396–397 ERASOR and, 397–398 family level factors, 389 for female adolescents, 403 history of violence and risk factors, 393–394 individual level factors, 388–389 J-SOAP-II and, 398–399 with mental illness, 404 peer-level factors, 390 and rates of youth violence, 386 risk assessment tools, 394–402 risk management recommendations, 394, 405 SAVRY and, 399–401

school factors, 390 special challenges in assessing, 392–393 special populations and types of violence, 402–404 steps in assessing, 393–394 for targeted school violence, 402–403 unstructured vs. structured assessments of, 394–395 YLS-CMI for assessing, 401–402 Adolescents. See also Adolescent violence risk; Juveniles adjudicative competence in, 291 adjudicative competency case example, 307–308 adoption of punitive stance towards, 386 appropriate outcomes for unrestorable, 296 Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) for, 306–307 competency assessment instruments, 302–307 competency evaluation and judicial determination, 294–295 competency evaluation process, 297–307 contextual factors affecting legal abilities, 299 data interpretation and report preparation, 298–301 determination of competence to stand trial, 301 Fitness Interview Test-Revised (FIT-R) for, 304–305 functional legal abilities, 299 and growing importance of juvenile competency, 292–293 interventions for legal deficits, 300–301 Juvenile Competency Assessment Interview (JACI) for, 302 lack of validated tools for assessing, 291 legal capacities of, 296–297 legal process involving competence, 293–294 legal requirements for competence, 291–293 MacArthur Competency Assessment ToolCriminal Adjudication (MacCAT-CA) for, 305–306 multicultural considerations in competency evaluations, 301–302 overuse of competency referrals for, 294 poor insight into internal states, 393 possible causes of legal deficits, 300 preparation for evaluation, 297–298 raising issue of competence for, 294 standards of competence for, 293 treatment and rehearings for incompetent, 295–296

Index Adult criminal court competence in, 291–292 juvenile transfers to, 293, 313–315 juvenile waivers by offense type, 317 legal standards for transfer to, 318–319 minimum age for juvenile transfer to, 317 percentage of states using standards for transfer to, 319 Adult forensic assessment, vii Adultery, loss of bearing in child custody cases, 419 African Americans, assessing with PCL instruments, 140–141 Age, correlation with Miranda rights comprehension, 270–271 Age limits, for exclusion of serious offenses, 266 Age of election, in child custody cases, 438 Aggression and cognitive capabilities, 388 and irritability from depression, 389 psychopathy and, 143 and risk for dangerousness, 332 in sex offenders, 201 Agreeableness low levels in youth psychopathy, 372 negative relation of youth psychopathy to, 366 in personality, 365 Alcohol dependence in child custody case example, 443 comorbidity with conduct disorder, 367 Amenability to treatment, 313, 315, 318, 319, 320, 332, 340 in case study, 338 identifying non-likelihood of, 336 legal requirements of time limits for, 336 of psychopathy, 348 research on juvenile, 327–330 American Academy of Child and Adolescent Psychiatry, 423–424 American Academy of Family Mediators, 423 American Academy of Forensic Psychology, 234 American Academy of Psychiatry and the Law, 8 American Board of Forensic Psychology, 5 American Board of Professional Psychology, 12 American Law Institute (ALI) standard, in insanity evaluations, 110 American Psychiatric Association, denouncement of civil commitment for sex offenders, 196

591

American Psychological Association ethics code, 55, 57 formal recognition of forensic psychology by, 3–4, 5 American Psychology-Law Society, 6, 7, 8 Web site of, 10 Amicus briefs, 43, 155, 176, 392 critiques of, 37 Amnesia claims competency issues, 102 pursuing from multisource perspective, 94 Anamnestic approach, to violence prediction, 225 Anchoring bias, in insanity evaluations, 113 Anger management problems, in child custody evaluations, 428 Antisocial behavior, 322, 324 among rapists, 203 among sex offenders, 190 and psychopathy, 349 in psychopathy, 130, 135, 137, 361 in youth, 328 Antisocial Personality Disorder (ASPD) among sex offenders, 191 as poor predictor of prison violence in capital offenders, 228–229 Antisocial Process Screening Device (APSD), 353, 354 Anxiety disorders, 367, 464 among psychopathic youth, 368 use of SADS in evaluating, 118 Appellate proceedings, in capital sentencing, 212 Applied forensic experience, 13–14 Appreciation, 303 in case example, 533 in decisional competence, 521 as domain of competency, 87 issues in juvenile comprehension, 299 in parens patriae interventions, 531 per MacCAT-T, 522 Area Under the Curve (AUC), in violence risk prediction, 159 Arrest rights. See also Miranda rights juveniles’ capacity to understand/waive, 265–266 Assaultive rule violations, 226 capital vs. other inmates, 227–228 Assent, issues in evaluation of children, 62 Assessing Understanding and Appreciation of Miranda Rights, 282, 283 Association for the Treatment of Sex Abusers (ATSA), 193 Association of Family and Conciliation Courts, 423, 432

592

Index

Atkins v. Virginia, 213, 231 Attention Deficit Hyperactivity Disorder (ADHD), 307, 339, 349, 388 among adolescents, 297 comorbidity with conduct disorder, 367 in juvenile suspects, 281 Attorney as client in personal injury cases, 484 control by retaining, 500 Attorney-client work product privilege, 486 disclosures governed by, 542 Atypical Presentation Scale, 94 in ECST-R, 93 Audio recordings, ethical issues, 64 Autistic disorder, 464 Automatic waiver, for juvenile offenders, 266 Automatism, 109 Autonomy, 326, 331 in juvenile transfer evaluations, 325 Avoidant Personality Disorder, among sex offenders, 200 Axis I disorders, 124, 221 among sex offenders, 200 in capital offenders, 220 Axis II disorders, 475

B Barefoot v. Estelle, 216 Barzee, Wanda, 95–99 Bases for opinions, 61 Basic competencies, 13–14 Baxstrom v. Herold, 154 Beck inventories, 495 Behavioral characteristics, of psychopathy, 349 Behavioral modification, 22 Behavioral movement, 4 Bench trials, in personal injury cases, 484 Best available research, 24 Best evidence model, of report writing, 543–544 Best evidence rule, 543 Best interest of child/community, 318, 319 Best interests of children, 420, 422, 429, 437 as basis for child custody decisions, 419 Best-practice models, for forensic assessment, 16–22 Bias in child custody evaluations, 422–423 by judges in child custody cases, 441 by patients in self-report measures, 493 Biographical chronology, in forensic reports, 549 Blameworthiness assessing in capital sentencing, 213 variations in, 214

Blaming behaviors, by plaintiffs in personal injury cases, 491 Blended sentencing, of juveniles, 318 Block Design, 64 Bluebook: A Uniform System of Citation, 51 Bluepages, 51 Board certification, in forensic psychology, 12 Bona fide doubts, in competency evaluations, 79 Borderline Personality Disorder, among sex offenders, 200 Boundaries of competence and cultural diversity issues, 65 and definitive statements on morality, 67 Brain damage claims, role of neuropsychologists in, 486 Bricklin Perceptual Skills (BPS), 424 Bundled evaluations, at capital sentencing time, 218–219 Burden of proof, in personal injury cases, 482 Bystander recovery, 483

C California Attorneys for Criminal Justice, 234 California Personality Inventory (CPI), 354 Callousness, 339, 357, 371 in conduct disorder, 373 correlation with YLS/CMI rating, 402 as predictor of violence in youth, 322 Canadian Code of Ethics for Psychologists, 55 Canadian Psychological Association, 57 Capital murder defendants assaultive rule violations comparisons, 227–228 competency evaluations for, 91 low incidence of violence among, 226–228 use of psychopathy as construct against, 133 Capital punishment, U.S. Supreme Court rulings on, 239–242 Capital sentencing. See also Death penalty advocacy and bias in, 218 bundled evaluations issue, 218–219 case study, 232–233 comprehensive investigation in assessment of, 221–223 conceptual issues, 213–216 criminal responsibility vs. moral culpability in, 215 evaluation of mitigation and moral culpability, 221–225 evaluations for mental retardation proceedings, 231–232 evaluations for postconviction and federal habeas proceedings, 232

Index forensic evaluations at, 211 heightened standards of reliability, 212 individualization of, 212, 216 informed consent issues, 217–218 mitigation considerations, 213–215 and modern death penalty era, 211–212 nexus with developmental trajectory and outcome, 223–225 parameters of defendant interview, 220 prison as sole relevant context for evaluation, 225 procedures and parameters of evaluation, 220–221 referrals for specialized assessment, 223 restricted class of death-eligible offenses, 212 role of personality testing in evaluation for, 221 roles for forensic psychologists, 218–220 testifying roles for psychologists, 219–220 violence risk assessment in, 215–216, 225–231 Caregiver involvement, 299 in case study of adolescent competence evaluation, 307 in evaluations for adolescent competence, 298 role in Miranda warnings to juveniles, 269–270 Caritativo v. California, 240 Case examples adjudicative competency evaluation, 95–99 adolescent violence risk, 405–406 capital sentencing evaluation, 232–233 child custody evaluations, 443–445 civil commitment evaluations, 532–533 competency for execution evaluation, 257–258 disability evaluations, 470–476 insanity evaluation, 124–125 juvenile comprehension of arrest rights, 282–285 juvenile transfer evaluations, 338–341 personal injury evaluations, 503–506 psychopathy, 145–146 sex offender evaluation, 204–205 violence risk assessment, 173–175 youth psychopathy, 374 Case history, in lower courts, 41 Case law concise summaries in Lexis and Westlaw, 40 database searches for, 46 legal research in, 40–42 rapid changes in, 44 Case number, 434 Case outcomes, and case specificity of testimony, 576

593

Case specificity, and persuasiveness of expert testimony, 575 Causation issues, in personal injury evaluations, 498–499 Caveat paragraph, in forensic reports, 548 Certainty principle, in expert testimony, 577–580 Change of circumstances, in child custody cases, 437 Change of custody, 427, 437 Checklists, for personal injury evaluations, 495 Child abuse/neglect, standards for evaluations, 14–15 Child adjustment, in custody cases, 418 Child custody evaluations, 417–419 1980-1989 trends, 419–421 1990-1999 trends, 421–422 age of election in, 438 avoiding harm or humiliation in, 441–442 case example, 443–445 change of custody cases, 427 choice of psychological test batteries, 438–439 converging lines of evidence for, 439–440 as specialty for forensic psychologists, 421, 431, 442 data collection procedures, 435–437 emotional distortions in, 421 fees and consent procedures, 434–435 general purpose of, 422 guardian ad litem (GAL) in, 433 guidelines for, 422–423, 433–442 hourly rate for evaluators, 430 importance of detailed records, 433–434 importance of family law knowledge in, 437–438 impression management by parents in, 438, 439 investigating allegations in, 436–437 and judges’ bias toward minimizing changes, 421 judges’ vs. psychologists’ bases for decisions, 421 knowledge of allegations in, 436 knowledge of research literature in, 440 language use guidelines in, 442 lawsuits and board complaints against psychologists in, 422 maintaining calm in face of hostility in, 442 need for clear documentation in, 434–435 need for scientific accountability and research-based opinions in, 431 nonscientific notions in, 440 procedural guidelines, 423–430

594

Index

ranking of factors in order of importance, 420–421 relative importance of psychologist in, 440–441 specialized competence for, 422 tender years presumption, 417 trend towards acrimonious family situations in, 426 trend towards longer and more costly evaluations, 431 trend towards specialization of, 426 trends 2000 to present, 430–433 Child custody issues, standards for evaluations in, 14 Child psychopathy. See also Adolescent psychopathy amenability to treatment, 371 and antisocial conduct, 370–371 assessing, 347–348 case example, 374 and coexisting psychopathology, 366–368 construct validity, 364–365 current state of knowledge, 356 development from early age, 351–353 differentiation from DSM-IV disruptive disorders, 348–351 factor structure for, 360–361 inter-rater reliability of measures, 359–360 internal consistency of measures, 356–359 measurement of, 353–356 and performance tasks, 368–370 and personality, 365–366 and predictiveness of delinquency, 370 scale homogeneity and internal consistency of measures, 356–359 temporal stability of, 363 test-retest reliability of measures, 361–364 undeveloped conceptualization of, 372 Child Psychopathy Scale (CPS), 354 Children in alignments, 426 Children’s Apperception Test, 424 use in child custody evaluations, 420 Child’s wishes, 420 in custody cases, 418 legal age of considering, 420 Choice in decisional competence, 521 moral culpability vs. damaging/impairing factors and, 214 willful, 215 Civil commitment, 24, 184, 391 details by state, 185–189 of sex offenders, 183–189

Civil commitment evaluations, 509–510, 510 alternative approach to involuntary mental health interventions, 523–529 assessing relevant clinical constructs in, 516–517 case example, 532–533 conducting, 513–523 for decisional capacity, 521–523 government role in, 511–513 for involuntary civil commitment, 514–520 linking clinical presentation and personal explanations, 517–520 parens patriae principle in, 511–513 police power principle in, 511–513 relevance to decisional capacity, 521–523 understanding and assessing dangerousness in, 518–520 writing reports for, 417–520 Civil disputes, forensic evaluations in, 7 Civil forensic assessment, vii Clarity in communication of expert testimony, 569–570 and problems with highly technical testimony, 570–572 Clearly incompetent (CI) individuals, 89 Client identity, in clinical vs. forensic reports, 541 Clinical Antipsychotic Trials of Intervention Effectiveness (CATIE) study, 100 Clinical diagnostic categories issues with legal definition of mental disorder, 514 overvaluation by attorneys, 550 Clinical expertise, 24 Clinical forensic psychology, 10 Clinical formulation section, in forensic psychological reports, 550–551 Clinical interviews, with sex offenders, 197–198 Clinical judgment, in violence risk assessment, 165 Clinical knowledge importance in expert testimony, 572 jurors’ preference for, 573–575 persuasiveness and communication of, 572 vs. actuarial-based testimony, 572–573 Clinical reports, differences from forensic psychological reports, 541–542 Clinically-based testimony benefits of combining with actuarial, 575 jurors’ preference for, 573–575 vs. actuarial-based, 572–573 Coaching, by plaintiff attorneys in personal injury cases, 503 Codes, legal research in, 42–43 Cody Posey murder trial, 347 Coercive treatment, 82, 100

Index Cognitive capabilities, 332 and aggression, 388 in RST-I, 331 testing for independent medical examinations, 454 Cognitive constructs, in insanity evaluations, 110 Cognitive development, and comprehension of Miranda rights, 270–271 Cognitive dissonance resolution, 492 Cognitive performance, negative effects of third-party observers on, 64 Cognitive testing, in personal injury evaluations, 497 Coker v. Georgia, 212 Collateral information, 18, 61 as basic data type in forensic reports, 551 in competency for execution evaluations, 252–253 gathering for independent medical examinations, 459 in personal injury evaluations, 494 for sample disability case, 473 for Social Security Administration disability evaluation, 467 on time of offense behavior, 117, 118 use in insanity evaluation, 112 Collateral witnesses, 548 in child custody evaluations, 435, 444 Command hallucinations, 113, 123 Comments, in legal research, 44 Committee on Ethical Guidelines for Forensic Psychologists, 5, 14 Communication principles, vii, viii, 20, 21 for forensic psychological reports, 545–546 in personal injury evaluations, 499–500 for risk management recommendations, 394 for violence risk reports, 394 Community factors predictive of youth violence, 224 in youth violence risk, 390–391 Community violence, as unreliable source of predictions on prison violence, 225–226 Compensable injuries, 482 Competence in adult criminal court, 291–292 boundaries in cultural diversity situations, 65 Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR), 302, 308 use with adolescents, 306–307 Competence Assessment Tool for Psychiatric Advance Directives (CAT-PAD), 521, 522 Competence assessments, 8, 24 ethical issues in, 59–60

595

Competence to assist, 305 Competency Assessment Interview (CAI), 87 Competency evaluations, 109. See also Adjudicative competency Competency for Execution (CFE), 239 commentary on, 247–250 court failure to specify legal test of, 242 defendant’s factual vs. rational understanding of, 247 evaluation of, 250–257 evidentiary hearings for, 241–242 interstate variations in determining, 241 interview checklist for evaluations of, 258 legal review of, 239–244 psychologists’ willingness to participate in, 239 research on, 244–247 understand and assist standard, 241, 243, 254 understand standard, 241 Competency for Execution evaluation, 250–251 case example, 257–258 Competency for Execution Research Rating Scales (CERRS), 255 components of, 246 general evaluation procedures and considerations, 251–253 instruments for, 246, 255 interview checklist, 253–255 knowledge base, 251 minimum vs. professional standards for conducting, 250–251 offender’s understanding of punishment, 254 offender’s understanding of reasons for punishment, 254 presentation of results, 253 psychological measures, 253–256 response styles and, 256–257 Competency for Execution Research Rating Scales (CERRS), 255–256 Complex testimony credibility of, 571 preparing jurors to process, 573 Comprehension, of Miranda rights by juveniles, 270–271 Comprehension of Miranda Rights (CMR), 276, 283 internal consistency, 277 limitations, 277 outdated norms and narrow language of, 278 Computerized Assessment of Response Bias, 497 Concentration and malingering in personal injury cases, 496 in Social Security Administration disability evaluation, 466

596

Index

Conclusory opinions. See also Ultimate issue avoiding for violence predictions, 155 use in R-CRAS scale, 124 Conduct Disorder (CD), 328, 339, 349, 373 in case study, 374 comorbid disorders, 367 criteria for, 351 Confession appreciation of legal significance of, 265 inadmissibility of, 269 Confidence interval, 551 Confidentiality compromises in violence risk assessment, 157 ethical issues in forensic psychology, 56 issues for juvenile offenders, 293 limits in child custody evaluations, 435 limits in personal injury cases, 486, 502 nonpreservation in juvenile transfer evaluations, 321 with psychologist as consultant, 485 of test administration materials, 503 Confirmatory bias, in insanity evaluations, 113 Confirmatory Factor Analysis (CFA), of PCL-R, 135 Conformity of conduct, and insanity standards, 111 Congressional Committee reports, 44 Conscience development, 350, 352 parents and, 363 Conscientiousness low levels in youth psychopathy, 372 negative relation of youth psychopathy to, 366 in personality, 365 Consent procedures, for child custody evaluations, 434–435 Consistency, of structured clinical judgment for violence risk, 166 Construct validity and PCL-R factor structure, 135–136 and PCL:SV factor structure, 137 Contamination issues, in personal injury cases, 503 Context and setting in competency determinations, 79 effects on adolescent legal abilities, 299 in ethical decision making, 56–57 Contextual competencies, 17–18 Contingency agreements, ethical issues, 60 Continuing education, 12, 14 in capital sentencing assessment, 234 Continuing education training seminars, 12 Continuing threat, court failures to define, 216 Contract for services, in child custody cases, 434–435

Convergent validity, 62 EARL-20B and EARL-21G, 397 between SRP-II and other measures, 142 Converging lines of evidence, in child custody cases, 439–440 Coping skills, and recovery of composure, 493 Correctional institutions, job opportunities in, 7 Correctional psychology, 4, 22 Cost of Living Index (COLI), and disability criteria, 463 Court cases, referencing citations, 52 Court order, 434 Creative processes, and forensic report writing, 558 Credentialing, in forensic psychology, 12–13 Credibility, 545 and case-specific testimony, 576–577 issues in personal injury cases, 501 as perceived by jurors, 569 Credible sources, 61 Crime, differences from torts, 482 Criminal responsibility, 214. See also Insanity and insanity evaluations, 109 linear best-fit model of, 113 relevance of psychological tests in determining, 119 vs. moral culpability, 215 Critiques, of psychology in courtroom, 36–37 Cruel and unusual punishment, 240, 241 Cultural diversity, ethical issues in evaluation, 65 Custody, misuse of term, 432–433

D Damages, in personal injury cases, 482 Dangerousness, 313, 319, 320, 332, 512 assessing in civil commitment evaluations, 518–520 behavioral evidence of, 520 as clinical construct, 157–158 connection to mental illness in civil commitment cases, 520 as current risk, 519 expansion of clinician’s legal role in assessing, 155 lack of clinically meaningful definition, 157 legal conflicts with psychological profession over, 156 to others, 515 predictive accuracy, 230 research on juvenile risk for, 315, 322–324 to self, 515 standards for sex offenders, 194 and standards of proof, 511

Index vague definitions of, 512 vs. violence risk assessment in capital sentencing, 217 Data collection principles, 20 bases for opinions, 61 for child custody evaluations, 423, 435–437 compromises with poor rapport in personal injury cases, 488 ethical issues in, 61–62 impartiality concerns, 61–62 obtaining information, 61 Data interpretation principles, 20, 21 Database section, in forensic psychological reports, 548–549 Daubert guidelines, 16, 27 and criteria for evaluating scientific merit 567 in personal injury cases, 485 and qualification of expert testimony, 566 tests meeting, 497 Daubert v. Merrell Dow, 485, 566 Day of offense exhausting defendant memories of, 117 reconstructing defendant behavior at, 115 Days preceding offense, reconstructing defendant behavior in, 115 Death penalty. See also Capital sentencing mental health professionals’ attitudes towards, 245, 246 modern history, 211–212 multiple stages of appellate review, 212 use of psychopathy in affixing, 133 Decision-making abilities, 100 and development of frontal lobes, 274 and insanity standards, 111 in juveniles vs. adults, 265 of youth, 273 Decision-making model, for ethical issues, 56–58 Decisional capacity, 532 in civil commitment evaluations, 521–523 Decisional competence, 292, 305, 517, 521 Decompensation episodes, and Social Security Administration disability determination, 467 Defendant functioning data sources for reconstructing, 117–119 reconstructing for insanity evaluation, 115–117, 122 at time of offense, 118 Defendant interview in assessment for capital sentencing, 223 in competency for execution evaluations, 252 parameters for capital sentencing assessment, 220 Defendant objectives, in criminal acts, 122

597

Defensiveness by examinee in independent medical examinations, 458 and hybrid responding styles, 458 Definitive statements, psychologists’ vs. legal view on, 67 Delivery complications, and violence risk, 388 Delusional beliefs, in David Mitchell case, 97 Delusional self-defense, 111 Delusionally inspired thinking, on religious issues, 78 Denial patterns, among sex offenders, 198 Depositions, in personal injury cases, 401 Depression, 78, 367 among psychopathic youth, 368 in juvenile offenders, 328 role in youth violence, 389 Deprivation factors, 229 Detection strategies for feigned mental disorders, 120 and use of SADS for malingerers, 119 Developmental appropriateness, of competency assessment instruments for youth, 302, 308 Developmental changes, and difficulty of violence risk assessment, 392 Developmental considerations for adolescents, 308 in Miranda warnings for juveniles, 273–274 Developmental damage, 220, 222, 233 relationship to exercise of choice, 213 Developmental factors, categories of, 222 Developmental immaturity, 296, 300, 318 adolescent incompetence due to, 295 and deficits in juvenile competence, 293 Developmental sophistication-maturity, model of, 327 Developmental trajectory, in assessment for capital sentencing, 223–225 Diagnoses, lack of correlation with insanity, 114–115 Diagnostic reliability, of standardized interviews, 114–115 Digests, in legal research, 45 Direct file, in juvenile transfer, 316 Disability as impairment in context, 449–450 vs. impairment, 449 Disability evaluations, 449–450 assessment of malingering for independent medical examinations, 458–459 assessment procedures for independent medical examinations, 453–455 case example, 469–476

598

Index

collateral interviews for independent medical examinations, 459 ethical issues, 450–451 independent medical (psychological) evaluations, 451–460 interviews for independent medical examinations, 455–457 psychological evaluations in Social Security system, 461–469 referrals for independent medical examinations, 453 report preparation for independent medical examinations, 459–460 requirement of clinical diagnosis in, 550 Disability insurance policies, 449, 451 any occupation policies, 452 own occupation policies, 452 partial disability policies, 452–453 total disability policies, 452, 453 Disclosure issues, in independent medical examinations, 451 Discovery process clinician fears about, 501 in personal injury cases, 486 Disparate fee setting, ethics of, 60 Dispositional competencies, 18 Disruptive behavior disorders (DBD), 349 descriptive differences from psychopathy, 350 Diversion program requirements, 22 Divorce issues, standards for evaluation in, 14 Dixon v. Pennsylvania, 155 Doctoral programs, 11 in forensic psychology, 10 Document searches, with Lexis and Westlaw, 46 Documentation in competency for execution evaluations, 248 for child custody evaluations, 434–435 of findings and opinions, 66–68 forensic psychological records, 66–67 scope of interpretation, 67 ultimate issue questions, 67–68 Dodd, Wesley Allen, 183 Domestic violence, 426, 432 in child custody cases, 427 Drug use, and youth violence risk, 390 DSM-IV categories disjunction with legal mental illness definitions, 514 failure to promote syndromes with unity, 528–529 flaws in, 528 DSM-IV disruptive disorders, differentiation from youth psychopathy, 348–351 Due process, and competency, 76

Durham standard, in insanity evaluations, 110 Dusky v. United States, 77, 292 Dynamic protective factors, 166 Dynamic risk variables, 166, 337 in sexual violence risk, 397 in violence risk assessment, 158 in youth violence risk, 392

E Early Assessment Risk List for Boys (EARL-20B), 395, 396–397 Early Assessment Risk List for Girls (EARL-21G), 396–397 Educational opportunities in forensic psychology, 8, 9–13 graduate training, 10–11 postdoctoral training and education, 11–12 undergraduate training, 9–10 Educative testimony, vs. evaluative testimony, 576 Emotional distress intentional infliction of, 483 negligent infliction of, 483 requirement of severity, 483 as tort, 482 Emotional withdrawal, 352 in David Mitchell case, 97 due to psychotropic medication, 83 Empathy, absence in juvenile offenders, 322 development of, 350, 352 parents and development of, 363 Empiricism in psychology vs. law, 35 vs. intuition, 34–35 Encyclopedias, in legal research, 44 Environmental variables, in violence risk assessment, 171 Error bands, in test findings, 551 Error rate absence for projective techniques, 497–498 and Daubert standard, 566 Estimate of Risk of Adolescent Sex Offendor Recidivism (ERASOR), 395, 397–398 use in case example, 405 Ethical challenges in child custody evaluations, 422 conflict between clinician and forensic evaluator roles, 487 decision making with unanticipated, 56–58 in disability evaluations, 450–451 in personal injury evaluations, 502–503 Ethical complaints, in child custody cases, 431 Ethical guidelines, 17 in child custody evaluations, 422

Index Ethical Guidelines for the Practice of Forensic Psychiatry, 21 Ethical issues, 13, 55–59 collection and review of information, 61–62 decision-making model for, 56–58 documentation of findings and opinions, 66–68 evaluation related, 62–66 feedback, 68–69 and persuasiveness of expert testimony, 580 referrals, 59–61 release of raw data, 68 testimony, 69 Ethical Principles of Psychologists and Code of Conduct, 14, 21, 24, 55, 502 Ethnic minorities, adolescent violence risk among, 403–404 Etiology of disorders, in personal injury cases, 486 European Association of Psychology and Law, 8 Evaluating Competencies: Forensic Assessments and Instruments, 75 Evaluation assent in, 62–63 cultural diversity considerations, 65 ethical issues in, 62 informed consent issues, 62 mandated measures issues, 66 and notification of purpose, 62–63 procedures and measures for, 63–64 psychologist-examinee relationship issues, 62 record/peer review issues, 65–66 third-party observer issues, 64 Evaluation of Competency to Stand Trial-Revised (ECST-R), 76, 87, 88 Evaluation with direct assessment contact, 220 Evaluation without direct assessment contact, 219 Evidence-based practice, 23, 24, 25 Ex parte Jordan, 242 Examinee ethical obligations to, 62 minimizing successful coaching of, 66 unknowable effects to performance of, 64 Executive functioning deficits, and aggression, 388 Exemplary damages, in personal injury cases, 482 Expert opinion as allowable inference, 545 need to support by data and reasoning, 557

599

Expert testimony admissibility standards for, 63, 566 benefits of combining clinical and actuarial, 575 for capital sentencing, 218 case-specificity in, 575–577 certainty principle in, 577–580 clarity principle in, 569–572 clinical knowledge principle, 572–575 Daubert standard and, 566 evidence-based principles of, 565, 568–569 factors influencing judges’ admissibility decisions, 567 Federal Rules of Evidence for, 565–566, 566 Four Cs of, 569 measuring impact of, 568–569 in personal injury cases, 484 from principles to practice, 580–581 qualification as expert witness for, 565–568 recommendations for admissibility hearings, 567–568 research studies on, 568 resources for experts, 581 scientific merit of, 566 slanted and strongly-worded, 578–579 ultimate issue and expressed confidence, 577–578 variations in study design, 568 Expert witness, qualification as, 565–568 Expressed confidence, effect on expert credibility, 577–578 External incentives, for somatoform disorders, 490 Extrapolated diagnoses, 119 false-positive rates of, 115 Extraversion in personality, 365 in psychopathy, 130 Eyewitnesses, in personal injury cases, 484

F Face-valid symptom checklists, ethical issues, 63 Factitious disorder, 490 Facts, vs. inferences in forensic psychological reports, 544–545 Fake Bad Scale, 496 False confessions, by juveniles, 266 False-positive rates, of extrapolated diagnoses, 115 False positives, 403 in youth violence risk assessment, 393 Family and Conciliation Courts Review, 432

600

Index

Family factors and amenability to treatment, 329 predictive of youth violence, 224 in youth violence risk, 389 Family law forensic psychology in, 7 importance of understanding in child custody evaluations, 437–438 Family violence, 389 Fathers changing status in child custody evaluations, 417 greater involvement in caregiving by, 433 importance of visitations with children, 430 Federal Insurance Contributions Act (FICA), and SSI/SSDI eligibility, 461 Federal Rules of Evidence (FRE), 485, 543 for expert testimony, 565–566 Fee management in child custody evaluations, 434–435, 441 ethical issues, 60 Feedback ethical issues in test results, 68–69 importance from report consumers, 546 Feigned mental disorders, 121. See also Malingering detection strategies for determining, 120 in personal injury cases, 496 Females assessing with PCL instruments, 139–140 increased youth violence among, 386 risk of adolescent violence in, 403 use of PPI with, 141 Fifth Amendment rights, and forensic warning, 91 Financial arrangements clarifying in child custody evaluations, 423 ethical issues in referrals, 60–61 Financial recommendations, avoiding, 20 Findlaw.com, 46 Fitness Interview Test-Revised (FIT-R), 84, 101, 302, 308 use with adolescents, 304–305 validation for use with adolescents, 305 Flat fees, ethics of, 60–61 Flynn Effect, 231 Focused probes, 118 use in insanity evaluations, 117, 119 Folstein Mini Mental Status Exam (MMSE), 516 Ford v. Wainwright, 240, 241, 242 extrapolation of, 250 low standard of competency for execution in, 244

Forensic assessment analogy to trials, 543 best-practice models for service delivery, 16–22 for capital sentencing, 220–221 comparison with therapeutic assessment, 18 comparison with treatment, 14–16 distinguishing from therapeutic assessments, 15 implications for training, 25–27 principles-driven approaches, 17 prospective vs. retrospective, 112 training in, 3 variations in training and practice, 25 Forensic assessment instruments, 18 Forensic evaluation section, in forensic psychological reports, 551–553 Forensic intervention, 15 model approaches, 16, 22–25 training in, 3 principles of, 20 Forensic mental health assessment (FMHA), 29 Forensic psychological records, ethical issues, 66–67 Forensic psychological reports accuracy in, 544 anxiety about writing, 560, 561 before/after narrative structures in, 550 best evidence model of report writing, 543–544 biographical chronology format, 549 bootstrapping techniques for writing, 559 caveat paragraph in, 548 clinical formulation section, 550–551 communication principles in, 545–546 database section, 548–549 differences from clinical reports, 541–542 disposition/recommendations section, 553 dominance of criminal reports in studies, 557 facts vs. inferences in, 544–545 forensic evaluation section, 551–553 glossary additions to, 545 history reporting by data source in, 549 information overload in, 560 informed consent procedures section, 547–548 inverted pyramid style, 547 issues of quality assurance, 557, 558 jurisdiction effects on length/content, 539 miscellany section, 553–554 opening section, 546 overarching principles of writing, 541–546 perfectionism as obstacle to writing, 559, 560 poor methodological designs of studies, 557 practical tips on writing, 558–561 procrastination problems in, 560 reason for referral section, 547

Index referral question and length/content, 539 referring party effects on length/content, 539 relevant history section, 549–550 state of empirical literature on, 554–558 structural components of, 546–553 summary of findings, 553–554 synopsis section, 547 three kinds of data in, 551 varieties of, 539–541 venue effects on length/content, 439 warnings section, 547 writing, 539 Forensic psychological researchers, 8 Forensic psychologists avoidance of role conflicts, 59, 423 as consultants in personal injury cases, 485 expanding job descriptions for, 7 as investigators for court in child custody cases, 435 loyalty to justice system, 55 modern role of, 3, 5–6 qualification as expert witnesses, 565–568 relative unimportance in child custody evaluations, 440–441 roles in capital sentencing, 218–220 roles in personal injury cases, 487–491 Forensic psychology, vii basic competencies and training models in, 13–14 credentialing, 12–13 current state of practice, 3, 6–8 debate over scope and definition of, 5 educational and training opportunities in, 8–14 ethical issues, 55–59 formal APA recognition of, 3–4, 5 graduate training in, 10–11 history of, 3–5 legal research for, 45–47 need for uniform standards, 28 postdoctoral training and education in, 11–12 undergraduate training in, 9–10 Forensic testing, methodological rigor, 16 Forensic treatment comparison with assessment, 14–16 model approaches to, 22–25 Forensic warning, 90–91 Foster care placements, and youth violence risk, 389 Foundational competencies, 100 Fraud, vs. malingering, 490 FRE Rule 702, 566, 567 Free Web search sites, 45, 46 Frith’s Case, 76

601

Frontal lobe dysfunction, among sex offenders, 201 Frye standard, 566 in personal injury cases, 485 Frye v. United States, 485 Functional capacity, in independent medical/ psychological evaluations, 460 Functional competencies, 17 in adolescents, 299 Furman v. Georgia, 211, 240 Future dangerousness. See Dangerousness Future orientation, absence in juveniles, 273

G Gang activity, 386 Gardner, Richard, 418 Gender equity, effects on child custody cases, 417 General damages, in personal injury cases, 482 General Electric Company v. Joiner, 109 Generalizability critiques of, 36–37 of PCL-R, 135 of psychopathy instrument findings, 144 Generational dysfunction, 232 Glossaries, appending to forensic reports, 545 Godinez v. Moran, 77, 887 common misinterpretations of, 79 interpretations of, 78 Graduate training, in forensic psychology, 10–11 Grave disability, 515, 533 Gregg v. Georgia, 211 Guardian ad litem (GAL), 434 in child custody cases, 433 unscheduled home visits by, 439 Guardianship proceedings, 510, 512 Gudjonsson’s Compliance Scale, 282 Gudjonsson’s Suggestibility Scales, 280 Guidelines for Child Custody Evaluations in Divorce Proceedings, 422 Guidelines for Psychological Evaluation of Suspected Abuse in Young Children, 424 Guilt phase, of capital sentencing, 212 Guilty pleas, competency issues, 78, 87

H Habeas proceedings, 212 forensic evaluations for, 232 Hare, Robert, 131 development of PCL-R by, 132 Headnotes, in Lexis and Westlaw, 41

602 Hearsay opinions, avoiding in child custody evaluations, 423 Helping relationship, obstacles in forensic psychology, 16 Hilson Life Adjustment Profile, use in independent medical examinations, 454 Hindsight analysis, 112 HIPAA guidelines, and personal injury cases, 503 Historical/Clinical/Risk Management-20 (HCR-20), 166–168 Hollow affect, due to psychotropic medication, 83 Homosexuality, bearing on child custody evaluations, 418, 421 Hourly fees, ethics of, 60–61 Human behavior, categorical classification of, 524 Hypothesis formulation, role of testing in, 18 Hypothesis-testing model, of insanity evaluation, 113, 114

I Iatrogenic incompetency, 80–81, 87 Impairment in civil commitment cases, 518 in context, 449–450 detailing influence on developmental trajectory, 223–224 determining level and time of, 114 and exercise of choice, 213 marked severity of, 464 medically determined, 462 questioning about, for independent medical examinations, 457 reporting nexus with psycholegal question, 557 vs. disability, 449 Impartiality and contingency fee agreements, 60 ethical issues in data collection, 61–62 guidelines for, 19 of psychologists in child custody cases, 418 Impression management, 439 in child custody cases, 438 Impulsivity and psychopathy, 139, 368 in youthful offenders, 273 In re Gault, 292 Incarceration, adjustment to, 230 Incompetence, for healthcare decision-making, 513

Index Incompetent youth, treatment and rehearings for, 295–296 Independent corroboration, 61 Independent medical/psychological evaluations, 450, 451–453 assessment procedures, 453–455 collateral interviews for, 453 exaggeration of symptom severity in, 458 examinee functional limitations, 457 functional capacity determination, 460 hybrid responding styles, 458 interviews for, 455–457 legal framework, 452 malingering assessment, 458–459 noting job duties and responsibilities for, 456 referral, 453 report preparation for, 459–460 secondary gain issues, 458 taking education history in, 456 Individual level factors, for youth violence risk, 388–389 Ineffective assistance of counsel, 212, 232 Inferences, vs. facts in forensic psychological reports, 544–545 Inferential leaps, resisting, 68 Information review, ethical issues in, 61–62 Informed assent, 90 from children in child custody evaluations, 423 Informed consent in child custody evaluations, 423, 435 in forensic psychological reports, 547–548 for independent medical examinations, 451, 453 importance with attorney as client, 542 in civil commitment evaluations, 517 issues in evaluation, 62–63 targets and issues in capital sentencing, 217–218 Ingrained criminality, 315 Inmate-on-inmate homicide rates, 226 Insanity Defense Reform Act (IDRA), 110 Insanity evaluation model, 115 data sources in reconstructing defendant functioning, 117–119 and determination of wrongfulness, 122–123 forensic decision-making in, 124 and psychological testing, 119–120 and reconstruction of defendant’s functioning, 115–117 response styles in, 120–122 Insanity evaluations, 109 case example, 124–125 cognitive constructs, 110, 111 comparative analysis, 113–114 development of alternative hypotheses in, 113

Index diagnoses and, 114–115 essential texts on, 109 focused probes in, 117, 119 hypothesis-testing model in, 113, 114 insanity standards overview, 110 model for, 115–125 re-experiencing technique in, 117 reconstruction as overriding goal of, 113 retrospective assessments, 112–113 reverse chronology technique in, 117 volitional prong, 110, 111 Insanity standards, 110. See also Criminal responsibility irresistible impulse component, 111 mental disease/defect, 111 basic components of, 111 conceptual model, 111 nature and quality components of, 111 wrongfulness component of, 111 Instruments. See also Psychological measures for adjudicative competency evaluations in adolescents, 302–307 for competency for execution evaluations, 255 for child custody evaluations, 438–439 for competency evaluations, 75 as imperfect tools, 86–87 for juvenile comprehension of Miranda warnings, 275–279 need for selectivity in child custody evaluations, 439 for psychopathy assessment, 133–142 for sexually violent predators, 201–203 use in personal injury evaluations, 494–495 for youth psychopathy, 353–356 for youth violence risk assessment, 395–402 Instruments for Assessing Understanding and Appreciation of Miranda Rights, 275–278 Insurance carriers, and independent medical examinations, 450 Integrative law-psychology knowledge, 13 Intellective functioning, relating to adjudicative competency, 76–77 Intelligence negative correlation with suggestibility, 272 testing in juvenile offenders, 325 tests for independent medical examinations, 454 Intentionality in personal injury cases, 490 proving in personal injury cases, 483 Inter-rater reliability, 115 EARL-20B and EARL-21G, 396 ERASOR, 398 for FIT-R, 304 J-SOAP-II, 399

603

for MacCAT-CA, 306 of PCL-R, 134 SAVRY, 400 of youth psychopathy measures, 359–360 Interactive competencies, 18 Interdisciplinary Fitness Interview, revised (IFI-R), 84, 102 Internal consistency of measures for youth psychopathy, 356–359 of PCL-R, 134 International Academy of Law and Mental Health, 8 Internships, 14 Interpersonal characteristics, of psychopathy, 349 Interpersonal Circumplex, 365 Interpersonal tendencies, in psychopathy, 136, 360, 362 Interpretation, scope of, 67 Interrogative pressure, juvenile susceptibility to, 271 Interviews as basic data type in forensic reports, 551 in child custody evaluations, 418, 430, 433 in personal injury evaluations, 493–494 Intuition, vs. empiricism, 34–35 Inverted pyramid style of reporting, 547 Involuntary commitment alternative approach to, 523–529 evaluations for, 514–520 and informed consent doctrine, 527 and violence risk assessment, 157 Involuntary examinees, 56 Involuntary treatment, rooting in parens patriae obligations, 511 IQ scores, and evaluations for mental retardation proceedings, 231 Irresistible impulse, as component of insanity standards, 111 Iterative Classification Tree (ICT) model, 164 research and use of, 164–165 of risk assessment, 164

J Jackson v. Indiana, 79 and problematic presuppositions of effective treatments, 80 John Jay College of Criminal Justice, 10 Joint-degree programs, 11 in law and forensic psychology, 10 Journal of Child Custody, 432 Judges, factors influencing admissibility decisions, 567

604 Judgmental competencies, 18 Judicial transfer, from juvenile to adult court, 317 Judicial waiver, for juveniles, 266 Jurek v. Texas, 211, 216 Jury research, critiques of generalizability, 36–37 Justice system forensic psychologists’ loyalty to, 55 search for definitive opinion, 67 Justification, standards in law vs. psychology, 33 Juvenile Competency Assessment Interview (JACI), 302–304 Juvenile detention facilities, 7 Juvenile forensic assessment, vii Juvenile justice system, 265 shift from rehabilitation to punishment, 292 unclear standards for competence in, 293 Juvenile Sex Offender Assessment Protocol-II (J-SOAP-II), 395, 398–399 use in case example, 405 Juvenile transfer evaluations, 313–315, 347, 393 and adult accomplices, 339, 340 and age, 340 and amenability to treatment, 327–330 and blended sentencing, 318 case example, 338–341 clinical information to address legal standards/criteria, 333–334 clinician unpreparedness for, 314 conducting, 321–322 and culpability of minor, 340 evaluation and psychological report, 330–333 and future legal policy changes, 336–337 historical purposes for waiver of jurisdiction, 315–316 Kent criteria underpinning standards for, 319–320 and legal standards for transfer, 318–320 mechanisms of, 316–318 minimum age for, 317 and prior record of delinquency, 340 providing context to, 334–335 recommendations for specific treatments, 335 and risk for dangerousness, 322–324 RST-I for, 331–333 and seriousness of offense, 340 and sophistication-maturity, 324–327 three key psychological constructs for, 320 ultimate clinical opinion regarding transfer, 335–336 youth violence risk assessment in, 391

Index Juveniles. See also Adolescents application of Miranda standards to, 266–267 capacity to understand/waive arrest rights, 265–266 case example, 282–285 comorbidity in offenders, 281 developmental considerations, 273–274 forensic assessment instruments for Miranda warnings, 275–279 intellectual and achievement measures, 279–280 interrogative suggestibility, 271–273 liberationist logic models of, 265 mental health assessment, 281–282 Miranda warnings in practice, 267–269 overuse of competency referrals for, 294 paternalistic logic models of, 265 philosophical shift to accountability and punishment, 266 and psychologists’ role in Miranda comprehension assessments, 274–275 research on Miranda rights comprehension, 270–271 risk taking by, 273 role of parents/caregivers in arrest rights, 269–270 standards of competence, 293 suggestibility instruments, 280–281 transfer to adult criminal court, 266 types of police questioning of, 267–268

K Kane, Gene Raymond, 183 Kansas v. Hendricks, 184, 192 Kent criteria, 313, 319, 321 for juvenile transfer to adult court, 319–320 three key psychological constructs, 320 Kent v. United States, 265, 266, 319 Keycite, 47 Kumho Tire v. Carmichael, 485, 566

L Late-onset delinquency, 387 Law theoretical underpinnings, 33–37 vs. values and norms, 34 Law reviews and journals in legal research, 44 legal research in, 44–45 referencing citations, 52 Leadership in criminal activity, 326

Index Leading questions, avoiding in insanity evaluations, 115 Least restrictive alternative doctrine, 24 Legal competencies, six characteristics of, 17–18 Legal deficits difficulty of remediating in adolescents, 301 multicultural comparisons, 302 possible causes in adolescents, 300 possible interventions for, 300–301 Legal directives, and goals of forensic interventions, 15 Legal-empirical-forensic paradigm, 126 for insanity evaluations, 109 Legal knowledge, 13 Legal literature, accessing and understanding, 33 Legal materials, referencing, 51–52 Legal mental illness, vs. clinical diagnostic categories, 514 Legal newspapers, 44–45 Legal psychology, vii Legal research finding documents, 46 for forensic psychology, 45–47 general search strategies, 48 Law version, Westlaw and Lexis, 48–49 with Lexis Academic version, 49 with Lexis and Westlaw, 46, 47, 48 , 49 referencing legal materials, 51–52 using natural language search, 47 using terms and connectors, 47 Legal research sources, 37 case law, 40–42 law reviews and journals, 44–45 legal newspapers, 44–45 legislative history, 43–44 online databases, 37–40 practice guides, 45 regulations, 43 secondary sources, 44 statutes and codes, 42–43 Legal sources, guide to referencing, 52 Legal terms of art, 542 Legal testimony, psychology of, 4 Legal truth, 35 Legislative history, 43–44 Legislative intent, 43 Level of Service Inventory-Revised, 162, 168 Lexis Academic version, 49–51 document finding in, 46 natural language search in, 47 using terms and connectors, 47 LexisNexis, 37 case depiction screen, 42

605

research using Academic version, 50 search page, 38 LexisNexis Academic home page, 49 search page, 51 Liability and damages in personal injury cases, 484 in tort law, 482 Life-course persistent delinquency, 323, 350, 386, 387 Life-without-parole capital sentencing, 216, 225 Lifestyle Criminality Screening Form, 162 Lifestyle tendencies, in psychopathy, 136 Limits of privilege in competency assessments, 90–91 in dealing with juvenile suspects, 274 Linear best-fit model, 114, 126 of criminal responsibility, 113 Linkage analysis, 93, 97 in David Mitchell case, 98 between psychopathology and impairment in psycholegal abilities, 77 Linking logic, in competency evaluations, 92 Lockett v. Ohio, 211

M MacArthur Competency Assessment Tool-Criminal Adjudication (MacCAT-CA), 84 limits as test for competency, 87 use with adolescents, 305–306 MacArthur Competency Assessment Tool for Clinical Research (MacCAT-CR), 521 MacArthur Competency Assessment Tool for Treatment (MacCAT-T), 521 MacArthur Competency Assessment Tool (MacCAT), 76, 82, 302, 515 strengths for use with adolescents, 305 MacArthur Violence Risk Assessment Study, 137, 143, 164 Malingering, vii, 126. See also Feigned mental disorders by adolescents in competence evaluations, 300 assessment during competency evaluations, 93–94 in competency for execution evaluations, 252, 256 evaluation of, 120–122 measures for personal injury evaluations, 496–497 in personal injury cases, 490 use of SADS to detect, 119 vs. fraud, 490

606

Index

Malleability, 336 Malpractice lawsuits, against psychologists in child custody evaluations, 421 Mandated measures, ethical issues in evaluation, 66 Martin v. Florida, 242 Master’s degree programs, in forensic psychology, 10 Maternal rejection, and violence risk, 388 Maturity, 313, 315, 320, 341 in case study, 338 model of developmental, 327 research on juvenile, 324–327 Medical model involuntary interventions, 525 accepting as given, 529 critique of validity, 525 and history of syphilis, 525–526 replacing with alternative, 529–533 Medical records review for disability case example, 473–474 in personal injury cases, 492 Medically determined impairment, 462 Medication competency to refuse, 77 iatrogenic effects of, 87 involuntary, 80–81 maintaining defendant’s competency with, 100 refusal of, 81 Memory problems, in personal injury cases, 496 Mens rea defense, 109 Mental anguish, 482 Mental disability, 463 Mental disease/defect, in insanity standards, 111 Mental disorder broad construction for civilly committed sex offenders, 190 distinction between legal and clinical, 192 high rates among adolescent offenders, 404 Mental Disorders and Impairments, Social Security Administration criteria for, 464 Mental health assessment, of juvenile suspects, 281–282 Mental health interventions, alternative approach to involuntary, 523–529 Mental health malpractice, 486 Mental health professionals, attitudes toward competency for execution evaluations, 244–245 Mental illness and adolescent violence risk, 404 combining with dangerousness in civil commitment cases, 512, 514, 520 high rates among violent youth, 388 medical model definitions of, 528

understanding and assessing, 514–515 vague definitions of, 512 Mental injuries, 482–483 Mental retardation, 213, 306, 464 among incompetent adolescent defendants, 295 assessment of competency in, 99 capital assessment evaluations, 231–232 determination in juvenile suspects, 279 and sophistication-maturity criterion, 320 Mental state, avoiding inferences about, 544 Mental Status Evaluation (MSE), 455 in case example of disability examination, 470 as nonobligatory for forensic reports, 550 in Social Security Administration disability evaluations, 468 Meta-analysis, 24 Methodology, in psychology vs. law, 34–35 Miller Forensic Assessment of Symptoms (M-FAST), 94 use in competency for execution evaluations, 257, 258 Millon Adolescent Clinical Inventory (MACI), 325, 354 as measurement of youth psychopathy, 355–356 Millon Clinical Multiaxial Inventory, use in child custody cases, 424 Millon Clinical Multiaxial Inventory-III, use in independent medical examinations, 454 Minnesota Sex Offender Screening Tool-Revised (MnSost-R), 194, 202–203 Miranda comprehension assessments, mental health professionals’ role in, 274–275 Miranda rights, 511 applying standards to youth, 266–267 developmental considerations for juveniles, 273–274 juveniles’ capacity to understand/waive, 265–266 mental health professionals’ role in comprehension assessments, 274–275 parents’ incomprehension of, 369 research on adolescents’ comprehension, 270–271 warnings in practice, 267–269 Miranda Rights Comprehension Instruments-II, 278–279 Miranda v. Arizona, 265 Miranda waiver form, 268 Misconstrued exigencies in case study, 125 and insanity standards, 111 Misdiagnoses, with use of unstandardized diagnoses, 114

Index Misleading questions, juvenile susceptibility to, 272 Misperceived threats, 123 Missed diagnoses, with use of unstandardized diagnostic method, 114 Mitchell, David, 95–99 Mitigation as capital sentencing issue, 213–215 evaluation of, 221–225 Mitigation specialists, 221, 222 MMPI-2 clinical scale, 131 in child custody case example, 444 dearth of empirical research on, 119 as gold standard in personal injury cases, 496 limited validity of profiles, 121 use in child custody evaluations, 419, 427, 438 use in determining malingering, 121 use in disability evaluations, 474–475 use in independent medical examinations, 454 use in insanity evaluations, 119, 121 use in personal injury cases, 495 use with adolescents, 298 MMPI Megargee profile classifications, 221 M’Naghten, Daniel, 110 M’Naghten standard, 125 in insanity evaluations, 110 Model Standards of Practice for Child Custody Evaluations, 423 Moffitt’s taxonomic model of offending, 386 Mood disorders, SADS in evaluation of, 118 Moral culpability, 214, 341 evaluation of, 221–225 in mental retardation, 213 Moral development, and juvenile transfer evaluations, 326 Motivation to change, 332 in RST-I, 331 Move-away evaluations, 428 in child custody cases, 426 Multicultural considerations, in adolescent competency evaluations, 301–302 Multiple narrative accounts, use in insanity evaluations, 117 Murder convictions, lack of relationship to prison violence, 226

N Narcissistic Personality Disorder, among sex offenders, 200 National Association of Criminal Defense Lawyers, 234

607

National Benchbook on Psychiatric and Psychological Evidence and Testimony, 156 National Legal Aid and Defender Association, 234 Natural language search, 47 Need principle, of case classification, 401 Negative predictive power (NPP), 200 in violence risk assessment, 159 Neglect in child custody cases, 443 and youth violence risk, 389 Negligence, in personal injury law, 483 Neuropsychologists, as expert witnesses in personal injury cases, 486 Neuroticism, in personality, 365 No fault divorce laws, 417, 418 Nomological net, 130 of child and adolescent psychopathy, 364–365 surrounding psychopathy, 353 Nonclinical legal psychology, 10 Nonconsent paraphilia, 190, 191 Noncontact sexual offenses, 163, 191 Nonmalfeasance, 55 Nonverbal emotional processing, 369 and psychopathy, 368 Normative behaviors, psychopath lack of insight into, 142 Not guilty by reason of insanity (NGRI), 120 Notes, in legal research, 44 Notification of purpose, 63 in competency for execution evaluations, 248 ethical issues in, 62–63

O Objective tests in personal injury evaluations, 495–496 vs. self-report in personal injury cases, 492 Off-the-record remarks, handling in child custody evaluations, 435 Offender rehabilitation, 22 Officially-sanctioned duties in case study, 125 and insanity standards, 111 Old-age parole, for capital offenders, 216 Ongoing episode evaluating malingering in, 120 role in insanity evaluation, 112 Online databases, 37–40 LexisNexis search page, 38 Westlaw search page, 39 Open-ended questions, use in insanity evaluations, 116

608

Index

Open-textured constructs, competency, 76 Opening section, in forensic psychological reports, 546 Openness, in personality, 365 Opinions, in personal injury cases, 484 Opportunity to disclose, 116 Oppositional Defiant Disorder (ODD), 328, 349 criteria for, 351 Organic mental disorders, 464 Outcome assessment, in ethical decision making, 58 Outdated psychological constructs, 531 Overcontrolled-hostility scale, 323 Overdiagnosis, in clinical evaluation vs. personal injury cases, 489

P Pain and suffering, 482 Paranoid schizophrenia, 464, 465 and psychotropic medication, 03 Paraphilia NOS (rape), 191 Paraphilias among sex offenders, 190–191 comprehensive assessment of, 199 diagnosis based on committing of behavior, 193 Parens patriae philosophy, 316, 513, 530, 531 and government role in civil commitment, 511–513 Parent Awareness Skills Survey (PASS), 424 Parent-child interaction in custody cases, 418 observation in child custody cases, 420, 430 Parent Child Relationship Inventory (PCRI), 425 Parent Perception of Child Profile (PPCP), 424 Parental alienation in child custody cases, 420, 426 due to maternal brainwashing, 426–427 Parental health, bearing in child custody cases, 418 Parental involvement, and delinquency, 389 Parenting capacity in child custody evaluations, 418 poor existing measures of, 424 Parenting plans, 433 Parenting rights and responsibilities, 433 Parenting skills, in child custody evaluations, 420 Parenting Stress Index (PSI), 425 Parents criminal behavior and youth violence, 389 effects on amenability to treatment, 329

role in development of empathy, guilt, and conscience, 363 role in Miranda warnings to juveniles, 269–270 Parents’ wishes, in custody cases, 418 Parole board, communicating violence risk potential to, 175 Partial opinions, guidelines for avoiding, 20 Passive avoidance, with high PCL scores, 139 Past pattern approach, to violence prediction, 225 Pate v. Robinson, 78, 79 context changes and, 79 Paternalism, vs. libertarian concerns in civil commitment, 529 Patient-centered values, vs. attorney as client, 541 Patient disclosure, obstacles in forensic psychology, 16 Patient needs, priority of accuracy of findings over, 15 Patient-psychologist relationship, alterations in personal injury cases, 487–491 Pedophilia, 190 sexual deviancy in, 203 Peer factors and parental relationships, 389 predictive of youth violence, 224 in youth violence risk, 390 Peer review, 567 and Daubert standard, 566 ethical issues in evaluation, 65–66 of psychological methodology in personal injury cases, 485 Perceived credibility, 569 Perceived responsibilities, and determination of wrongfulness, 123 Perceived threats, and determination of wrongfulness, 123 Perception of Coercion During Holding and Interrogation Process (P-CHIP), 279 Percipient witnesses, in personal injury cases, 484 Performance tasks lack of correspondences to psychopathy, 370 psychopathy and, 368–370 Persistence, inSocial Security Administration disability examination, 466 Personal biases/beliefs, in ethical decision making, 57 Personal injury evaluations, 481 case examples, 503–506 case formulation process, 488–490, 505 causation issues in, 498–499

Index clinical vs. personal injury practice issues, 487–491 cognitive and ability tests in, 497 collateral information in, 494 communicating findings in, 499–500 differences from clinical evaluations, 488–490 discouragement of speculation in, 489 documenting psycholegal question in reports for, 552–553 ethical challenges in, 502–503 evaluation process, 491–498 fixed format procedures in, 495–496 interview process, 493–494 legal process in, 501–502 measures of symptom distortion in, 496–497 objective tests in, 495–496 participants in, 484–486 and personal injury law, 481–486 projective techniques in, 497–498 psychological testing in, 494–495 questionnaires and checklists for, 495 reaching conclusions in, 498–500 records review in, 491–492 role differences from clinical practice, 487–488 role of self-reports in, 492–493 symptom misrepresentation in, 480–481 writing reports for, 500 Personal injury law, 481–482 intentional infliction of emotional distress, 483 mental injuries, 482–483 negligent infliction of emotional distress, 483 participants in process, 484–486 Personality big 5 factors of, 365 and psychopathy, 365–366 Personality Assessment Inventory (PAI) use in case study, 125 use in establishing feigned mental disorders, 121–122 use in independent medical examinations, 454 Personality disorders, 464 among sex offenders, 190, 200 and insanity standards, 111 Personality measures, use in independent medical examinations, 454 Personality testing, role in assessment for capital sentencing, 221 Persuasiveness, and case-specificity, 575–577 Pervasive developmental disorders, 464 Phyle v. Duffy, 240 Physical abuse, and youth violence risk, 389 Physical disability, 463 Physicians, as experts on insanity, 524

609

Physiological assessment, of sex offenders, 199–200 Plaintiff interviews, guidelines for, 19 Plaintiffs, in personal injury cases, 482, 484 Plea adolescent understanding of, 303 issues in juvenile comprehension, 299 refusal to enter, 99 Plethysmography (PPG), 199 Police power principle, 530 and government role in civil commitment, 511–513 Police psychology, 4 Polygraphy, for sex offenders, 199 Positive predictive power (PPP), 200 in violence risk assessment, 159 Post hoc, ergo propter hoc, 499 Postconviction proceedings, forensic evaluations for, 232 Postdoctoral studies, 9, 14 fellowships, 12 Postsentence requirements, 22 Posttraumatic stress disorder in juveniles, 328 and youth violence, 389 Potential consequences, considering in ethical decision making, 58 Poverty considering in youth violence risk assessment, 404 and youth violence risk, 390 Practice guidelines, 17 in legal research, 44 nine content areas, 18–19 Practice Guidelines—Use of Anatomical Dolls in Child Sexual Abuse Assessment, 424 Practice guides as legal research source, 45 in Lexis, 45 in Westlaw, 45 Practice Parameters for Child Custody Evaluations, 424 Practitioner-scientists, 14 Pre-criminal history, competency and, 90 Precedent, 40 in personal injury cases, 484–485 Predatory violence, and civil commitment of sex offenders, 195 Prefrontal dysfunction, 388 Premorbid condition opinions about, 498 understanding in personal injury cases, 492 use of self-report in ascertaining, 493

610

Index

Prenatal complications, and violence risk, 388 Preparation principles, 20 Preponderance of evidence, in personal injury cases, 482 Present-state psychological testing, 18 Pretrial detention, 393 Primary caretaking responsibilities, bearing in child custody cases, 420 Principles-driven approach, 25, 26, 27 Principles of Forensic Mental Health Assessment, 75 Principles of Medical Ethics with Annotations, 21 Prior episode, role in insanity evaluation, 112 Prison violence Antisocial Personal Disorder as poor predictor of, 228–229 interaction of factors in, 229 low incidence among capital offenders, 226–228 practical applications of assessment, 230–231 reliable assessments of probability, 229–230 risk management in risk assessment, 230 unreliability of predictions based on community violence, 225–226 Prison work, 7 Private disability insurance, 451 Probability of acts, 216 in civil commitment cases, 519 court failure to define, 216 of violent acts, 217 Probative value, 499 in forensic report writing, 543 Problem identification, in ethical decision making, 56 Procedures, ethical issues in evaluation, 63–64 Process outcome studies, 24 Product rule, 125 Prognosis guidelines in personal injury cases, 489 in personal injury cases, 486 Projective techniques avoiding in child custody evaluations, 438–439 cautions for use in personal injury evaluations, 497–498 use for competency for execution evaluations, 246 use in personal injury cases, 497 Proof, standards in law vs. psychology, 33 Prosecutor direct file, 266, 317 in juvenile transfer, 316 Prosocial attitudes, 389

Protective factors in amenability to treatment, 329 in case study, 175 in juvenile sex offender cse, 406 in violence risk, 166 against youth violence, 387, 389 Proximate cause, of injury in personal injury cases, 498 Psychiatric advance directives (PADs), 510, 512, 513 Psychiatric diagnosis, and question of competence, 531 Psychiatrists, inability to predict dangerousness, 155–156 Psychic injuries, compensation for, 482 Psycholegal abilities, 101 Psycholegal approach, 6 Psycholegal questions and choice of instruments, 63 documenting in forensic reports, 552 items of relevance to, 549 nexus with clinical impairments, 557 report focus on, 542 Psycholegal research, and debate over scope of forensic psychology, 13 Psychological factors, predictive of youth violence, 224 Psychological measures for competency evaluations, 75 for competency for execution, 253 considerations for selecting, 63 cultural diversity issues in selecting, 65 development and validation of, 8 ethical issues in evaluation, 63–64 Evaluation for Competency to Stand Trial-Revised, 76 Fitness Interview Test-Revised (FIT-R), 84 and insanity evaluation, 119–120 Interdisciplinary Fitness Interview, revised (IFI-R), 84 MacArthur Competency Assessment Tool (MacCAT), 76 mandated, 66 MMPI-2, 119, 121 for psychopathy assessment, 133–142 rater-based instruments for psychopathy, 134–140 self-report instruments for psychopathy assessment, 140–142 withholding lists for ethical reasons, 66 Psychological reports, writing, viii Psychological stability, in child custody cases, 420 Psychologist-examinee relationship, ethical issues in evaluation, 62

Index Psychometric movement, 4 Psychometric properties EARL-20B and EARL-21G, 396 J-SOAP-II, 399 YLS/CMI, 402 Psychopathic Personality Inventory (PPI), 133, 141–142 Psychopathology. See also Mental illness, mental disorder, Axis I disorders among adolescent offenders, 297 relating to adjudicative competency, 76–77 Psychopathy, 324, 332, 339 affective characteristics, 349 amenability to treatment, 348 antisocial characteristics, 349 and antisocial conduct, 370–371 assessing in children and adolescents, 347–348 assessing via rater-based and self-report instruments, 133–142 behavioral characteristics, 349 and biological/cognitive deficits, 368 case example, 146–147, 374 Cleckley descriptors of, 131 clinical assessment of, 129 and co-existing childhood psychopathology, 366–368 comorbidity with internalizing symptoms, 140 criteria for, 351 decline in rates with age, 362 development from early age, 351–353 developmental trajectories, 353 heritability of, 131 and institutional violence, 371 interpersonal characteristics, 349 justification of longer sentences by, 132 limitations of self-report instruments for, 143 as mania without insanity, 130 measurement instruments for youth, 353–356 as most significant predictor of violence, 144 onset and temporal stability, 353 and performance tasks, 368–370 and personality, 365–366 as poor predictor of prison violence, 229 possible genetic basis of, 352 as predictor of violence in youth, 322 presumed untreatability of, 145 as psycholegal construct, 132–133 rater-based instruments, 134–140 recalcitrance to treatment, 353 recommendations for use of concept, 348 relationship to violent behavior and recidivism, 143–145 requirements for successful treatment, 145

611

research history, 130–132 research on roots in childhood, 348 stability estimates, 363 in state statutes regarding sex offenders, 191 structural stability and validity of measures, 348 subtypes based on differential relationship to anxiety, 131 temporal stability of, 364 test-retest reliability of measures, 361–364 treatability of, 349, 371 treating and managing risk, 145–146 two-, three-, and four-factor models, 357, 361 widespread use in case law, 132 Psychopathy assessment instruments assessing African Americans with, 140–141 assessing females with, 139–140 cautions for use of self-report instruments, 143 Psychopathic Personality Inventory (PPI), 140 Psychopathy Checklist: Revised (PCL-R), 134–137 Psychopathy Checklist: Screening Version (PCL:SV), 137 self-report instruments, 141–143 Self-Report of Psychopathy-Second Edition (SRP-II), 142–143 specific populations and PCL instruments, 139–141 training to administer, 138–139 Psychopathy Checklist: Revised (PCL-R), 133, 134, 146, 162, 573 ability to predict violence, 168 construct validity, 138 reliability, 134–135 superiority in violence prediction, 170 Psychopathy Checklist: Screening Version (PCL:SV), 133, 137, 167 construct validity, 138 reliability, 137–138 Psychopathy Checklist-Youth Version (PCL-YV), 347, 353, 355, 363 Psychopharmacological interventions for juvenile offenders, 335 status quo assumptions about, 80 Psychotic disorders, 464, 465 among incompetent youth, 295 and insanity standards, 111 in juvenile offenders, 328 rarity among civilly committed sex offenders, 190 SADS in evaluation of, 118 time of offense reconstruction difficulties with, 118

612

Index

Psychotropic medication involuntary administration of, 513 periods of increased psychotic symptomatology with, 100 refusal of treatment, 510 side effects of, 83 substantial likelihood of response to, 81, 82 Public safety, 318, 319, 341 Publication Manual of the American Psychological Association: Fifth Edition, 51 Punitive damages, in personal injury cases, 482

Q Questionnaires, for personal injury evaluations, 495

R Racial discrimination, and youth violence risk, 391 Racial minorities, adolescent violence risk, 403–404 Randomized clinical trials, 24 Rape, noneligibility as capital offense, 212 Rapid Risk Assessment of Sexual Offense Recidivism (RRASOR), 201–202 Rapists, use of MnSost-R with, 202 Rapport absence in personal injury cases, 488 establishing for adolescent competency evaluations, 301 Rare-symptoms strategy, in evaluation of malingering, 120 Rater-based instruments, for psychopathy assessment, 134–141 Rationality, in decisional competence, 521 Raw data, ethical issues in release of, 68 Re-experiencing technique, in insanity evaluations, 117 Reading levels, and comprehension of Miranda rights, 268–269 Reason for referral, in forensic psychological reports, 547 Reasonable care standard, 34 Reasonable-person standard, in personal injury cases, 483 Reasoning in case example, 533 as domain of competency, 87 in parens patriae interventions, 531

per MacCAT-T, 522 standards in law vs. psychology, 33 Receiver Operating Characteristic (ROC) analysis, for risk prediction research, 159 Recidivism, 153, 370, 405 among sex offenders, 194, 201 base rates for, 158 decreasing, 22 gender similarities for test results, 139 prediction of, 143, 169 and psychopathy, 132 psychopathy and, 347 rate of, 155 relationship of psychopathy to, 143–145 and YLS/CMI classification, 402 Recommendations section, in forensic psychological reports, 553 Reconnaissance, in competency evaluations, 91–92 Record reviews, in evaluation, 65–66 Recordkeeping, in child custody evaluations, 423, 433–434 Referencing guidelines, 52 Referral question and length/content of forensic psychological report, 539, 540 understanding for civil commitment cases, 515–516 Referrals competence issues in, 59–60 ethical issues in, 59–61 financial arrangements and, 60–61 for independent medical evaluations, 453 retaining party-examiner relationship in, 59 Regulations as legal research source, 43 referencing citations, 52 Rehabilitation amenability to, 318 of juveniles, 265 likelihood of juvenile, 315 as past focus of juvenile justice system, 292 Rehearsed quality, of defendant narrative, 116 Relapse prevention, 22 Relationship avoidance, and Social Security Administration disability evaluation, 466 Relevant history section, in forensic psychological reports, 549–550 Reliability of collateral interviews, 544 of courtroom eyewitness testimony, 4 of evidence in personal injury cases, 484 four-part Daubert test of, 16 of Parenting Stress Index, 425

Index of PCL-R, 134–136 of PCL:SV, 137–138 standards for capital sentencing, 212 of tests for independent medical examinations, 454 Religious beliefs, 98 and adjudicative competency, 97 Religious writings, compliance with, and wrongfulness determinations, 123 Relocation cases, 437 in child custody evaluations, 428–430 Remorse/guilt, absence in juvenile offenders, 322 Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), 516 Replication, standards in law vs. psychology, 34 Report writing problems, remedies for, 560 Reports and testimony, practice guidelines, 20 Research background knowledge for child custody evaluations, 440 competency in conducting, 13 on expert witnessing, 568 on juvenile amenability to treatment, 327–330 on juvenile risk for dangerousness, 322–324 on juvenile sophistication-maturity, 324–327 Research design and methodology, 13 Residual functional capacity, 463 determining for Social Security Administration, 460 Resilient personality traits, protectiveness against youth violence, 389 Resources, identifying in ethical decision making, 57 Response biases, among violent youth, 393 Response styles, 122 in competency for execution evaluations, 256–257 in independent medical examinations, 458 and insanity evaluation, 120–122 lack of method for assessing in collateral interviewees, 544 Responsible caring, 55 Responsivity principle, of case classification, 401 Restoration interventions dearth of research on effectiveness of, 80 for incompetent youth, 295 probability of results, 81 Restoration of competency, 79 constitutional framework for, 80–81 time limits for, 79–80

613

Retainer arrangements, ethical issues, 61 Retaining party-examiner relationship, 59 Retrospective assessments in insanity evaluations, 112–113 use of SADS in, 119 Reverse chronology technique, in insanity evaluations, 117 Reverse transfer process, 318 Review of records for adolescent offenders, 297 in assessment for capital sentencing, 223 in capital sentencing evaluation, 223 in personal injury evaluations, 491–492 Riggins v. Nevada, 80 Right to counsel, 265, 267, 275 adolescent waivers of, 296 Right to free counsel, 265, 275 Right to refuse/consent to psychiatric treatment, 24 Right to silence, 265, 275 waiver by adolescents, 296 Risk communicating, 171–175 for violence in adolescents, 385–386 Risk assessment, 158. See also Violence risk assessment applying techniques to clinical practice, 170–171 clinical construct of, 157–158 context-free model limitations, 170 contextualizing, 170–171 recent developments in, 392 reviving research in, 158–159 Risk management, 153, 154 in assessment of prison violence, 230 developing recommendations for youth, 394 with psychopathy, 144–145 recommendations for adolescent violence, 405 Risk management interventions, 231 Risk potential models, 168 Risk prediction, 153, 154 clinical overestimation of, 155 Risk principle, of case classification, 401 Risk-Sophistication-Treatment-Inventory (RST-I), 331–333 in case study, 338 Risk state, 163 Risk status, 163 Rogers Criminal Responsibility Assessment Scales (R-CRAS), 124 Rogers Discriminant Function (RDF), 122 Roper v. Simmons, 213

614 Rorschach Inkblot Test, 131, 246, 325 Exner system for, 498 in personal injury cases, 497 use in child custody evaluations, 419, 424

S Scale homogeneity, of psychopathy scales, 356–359 Schedule of Affective Disorders and Schizophrenia (SADS) detection strategies for feigning in, 119 retrospective assessments using, 119 symptom reliability in, 119 symptom severity in, 118–119 use in insanity evaluations, 118 Schizophrenia, 464, 465, 509 and determination of wrongfulness, 123 Scholarly journals, 8 School factors predictive of youth violence, 224 in youth violence risk, 390 School shootings, 403. See also Targeted school violence Scientific merit, criteria for evaluating, 567 Scientist-practitioners, 10, 14 role in personal injury cases, 481 Scientist-scholars, 10 Second-generation commitment laws, 184 evaluation requirements in, 196 Secondary gain, issues in independent medical examinations, 458 Secondary sources, 45 uses in legal research, 44 Self-efficacy, as protective factor, 389 Self-report in personal injury case example, 505 role in personal injury evaluations, 492–493 Self-report instruments in evaluation of sex offenders, 198 for juvenile offenders, 325 for psychopathy assessment, 140–142 for sex offenders, 199 Self Report of Psychopathy II, 367 Self-Report of Psychopathy-Second Edition (SRP-II), 133, 142–143 Sell v. United States, 80–84 and psycholegal abilities, 101 Sensation seeking, 352 Sentencing phase, 212 Serotonin levels, and youth violence, 388 Severe emotional distress, in personal injury cases, 483

Index Sex offenders adolescent, 391 case example, 204–205, 405–406 choosing among actuarial risk scales for, 203–204 clinical interviews with, 197–198 components of SVP statutes, 189–195 decline of clinical interviews by, 197–198 denial patterns among, 198 evaluation context and approach, 197 evaluations for civil commitment, 183–189, 195–196 mandated wearing of GPS tracking devices by, 183–184 physiological assessment of, 199–200 preparing for assessment of, 196–204 restrictions on residence, 184 unreliable self-reports by, 198 Sexual abuse allegations, 426, 427–428 in child custody cases, 424 decline in frequency of, 428 Sexual harassment, in personal injury cases, 482–483 Sexual Offending Risk Appraisal Guide (SORAG), 162 Sexual orientation, bearing in child custody cases, 418 Sexual recidivism, 154 Sexual violence assessing risk of, 397, 398–399 exclusions from statutory definitions of, 163 Sexual Violence Risk-20 (SVR-20), 168, 203 Sexually Violent Predator (SVP) statutes, 184 components of, 189 and current mental disorder/abnormality, 185, 190–191, 196–197 and findings of future risk, 185, 193–195, 197, 201–203 and nexus between mental abnormality and likelihood of sexual violence, 185, 191–193, 197, 200–203 and past acts of sexually harmful conduct, 185, 189–190, 196, 198–200 Shallow affect, 352 Shephard’s Citation Service, 47, 49, 50 Simmons, Christopher, 273 Single-parent households, changes since 1960, 417 Site observation, guidelines for, 19 Situational variables, in violence risk assessment, 171 Skipper evidence, 215 Slanted testimony, effectiveness of, 578–580 Smart, Elizabeth, 95–99

Index Social deviance control by medical professionals, 523 history of state control of, 523 transformation from moral weakness to mental illness, 523 Social functioning, and Social Security Administration disability evaluation, 566 Social referencing, and development of psychopathy, 352 Social Security Act, 461 Social Security Administration, 449, 450 criteria for Mental Disorders and Impairments, 464 Social Security disability evaluations, 461–462 application and appeals procedures, 462–463 assessment process, 464–467 criteria for establishing disability, 463 decompensation episodes and, 467 documentation for, 467 psychologist’s role in, 463–464 Social Security Administration assessment, 467–468 Social Security Administration report, 468–469 Social Security Disability Insurance (SSDI), 461 criteria for receiving, 461 denial of benefits, 462 Social Security evaluations, 449 for disability status, 461–462 Society for the Scientific Study of Psychopathy (SSSP), 129 Solesbee v. Balkcom, 240 Solution development, in ethical decision making, 57–58 Somatoform disorders, 464, 491 in personal injury cases, 490 Sophistication, 313, 315, 320, 332, 341 in case study, 338 model of developmental, 327 research on juvenile, 324–327 Special damages, in personal injury cases, 482 Specialty Guidelines for Forensic Psychologists, 5, 14, 16, 19, 24, 75, 94, 197, 423, 502, 558 Spite moves, in child custody cases, 428 Spousal abuse allegations, in child custody cases, 427 Standardized interviews, 126 in insanity evaluations, 114–115 Standards of Practice for Divorce and Family Mediation, 423 Standards of proof, for criminal law vs. involuntary treatment, 511 Stare decicis, 35–36 State of practice, 3 Static 99, 202

615

Statistics, 13 and prediction of violent behavior, 160 Statutes, legal research in, 42–43 Statutes at lage, 42, 43 Statutory exclusion, in juvenile transfer, 316 Strongly-worded testimony, effectiveness of, 578–580 Structured Assessment of Violence Risk for Youth (SAVRY), 321, 395, 399–401 Structured assessments, of youth violence risk, 394–395 Structured Clinical Interview of DSM-IV Disorders (SCID), use in insanity evaluations, 118 Structured Interview of Reported Symptoms (SIRS), 93 case study use of, 125 use in competency for execution evaluations, 257 use in determining malingering, 122 use in independent medical examinations, 458 use with adolescents, 300 Structured professional judgment, 158, 395 advances in, 166–168 critique of, 168–170 in violence risk assessment, 165 Substance abuse disorders, 367 among sex offenders, 190 comorbidity with conduct disorder, 367 in personal injury cases, 494 and violence in youth, 388 Substance addiction disorders, 464 Substantial gainful activity, Social Security Administration definition of, 43 Substantial impairment, lack of precise definition, 519 Substantial risk, vague definition of, 520 Substantive psychology, 13 Suggestibility of juveniles, 280–281 and reading of Miranda rights to juveniles, 271–273 Suicidal ideation, 78 Super-maximum confinement, 230 Supplemental Security Income (SSI), 461 Symptom Checklist-90 (SCL-90), 495 Symptom misrepresentation differences between clinical and personal injury practice, 480–481 in personal injury cases, 496–497 Symptom reliability, evaluating with SADS, 119 Symptom severity evaluating with SADS, 118–119 exaggeration in independent medical examinations, 458

616

Index

Symptom validity, 496 Synopsis, in forensic psychological reports, 547 Syphilis, and history of medical model of insanity, 525–526

T Tarasoff v. Regents of the University of California, 391 Targeted school violence, 402–403 Teaching witnesses, forensic psychologists as, 219 Technical testimony clarity problems with, 570–571 enhancing credibility of, 571–572 Tender years presumption in child custody cases, 417 decline of, 418 Terms and connectors, 48 in Lexis and Westlaw, 47 Test data care in forensic reporting of, 551 HIPAA laws pertaining to access, 503 reporting concerns with validity, 548 role in forensic reports, 551 vs. test materials, 68 Test materials, vs. test data, 68 Test of Memory Malingering (TOMM), 102, 496, 497 use in competency for execution evaluations, 257 use in independent medical examinations 454 Test of Non-Verbal Intelligence (TONI), 468 Test performance, effects of adversarial context of litigation on, 65 Test-retest reliability, 115 dearth of research on PCL:SV, 138 of PCL-R, 134 of youth psychopathy measures, 361–364 Test security, compromises to, 64 Testifying experts, viii, 486 role in capital sentencing, 218 Testimony, ethical issues in, 69 Testing, relevance of, 18 Testing guidelines, 19 Thematic Apperception Test (TAT), 315 use in child custody evaluations, 419, 424 use in personal injury cases, 497 Theralaw, 6 Therapeutic assessment, comparison with forensic assessment, 18 Therapeutic jurispudence, 6 Therapeutic rapport negative effect of demands on, 116 role in insanity evaluations, 116 tenor of focused probes and, 117

Therapist-patient privilege, 542 Third-party interviews, in assessment for capital sentencing, 223 Third-party observers, ethical issues in evaluation, 64–65 Threat assessment approach, to targeted school violence, 403 Time of offense collateral sources of information on, 117 defendant recall of mental state at, 83 mental state at, 218, 219 reconstructive defendant behavior at, 113, 115 Tolerance, 332 in RST-I, 331 Tort law, 481–482 Trade secrets, of test publishers, 503 Trained observers, ethics of requesting, 64 Training in forensic assessment and intervention, 3 opportunities in forensic psychology, 8, 9–13 Training models in forensic psychology, 13–14 lack of consensus on, 13 Treatment amenability, 327–330, 332. See also Amenability to treatment of psychopathy, 371 Treatment decision making, 510, 512 Treatment refusal, 82, 510, 513, 527 Trial outcomes, in studies on expert witness testimony, 568 Trier of fact (TOF), 67, 92 forensic assistance to, 568 in personal injury cases, 484 usefulness of actuarial and clinical testimony to, 575 Truth absence of gold standard for determining, 199 psychology vs. legal concepts of, 35–36

U Ultimate issue. See also Conclusory opinions forensic opinions on, 67–68 state requirements on, 577 Undergraduate training, in forensic psychology, 9–10 Understanding in case example, 533 in decisional competence, 521 as domain of competency, 87 in parens patriae interventions, 531 Uniform Marriage and Divorce Act, 418, 419

Index United States Code, Annotated, 43 United States Code Congressional and Administrative News (USS-CAN), 43 Unprovoked violence, 322 Unstandardized diagnoses, limitations in insanity evaluations, 114 Unstructured clinical judgment errors in violence risk assessment, 159–160 in violence risk assessment, 165, 394–395 Upward waiver, 315, 316. See also Juvenile transfer evaluations U.S. Code, published version, 43 U.S. Constitution, referencing citations, 52 USSCAN database, 43

V Validation absence for projective techniques, 498 of JACI for adolescents, 303 lacking for ASPECT, 425 and legal concept of reliability, 500 need for contrasted groups design in, 89 of Parenting Stress Index, 425 of SAVRY instrument, 400 of tests for independent medical examinations, 454 of tests in personal injury cases, 497 Validity, of information sources, 548 of collateral interviews, 544 compromises to studies of psychopharmacological medications, 81 of MMPI-2, 119 of R-CRAS scale, 124 threats from third-party observers, 64 Values, vs. laws, 34 Verbal abilities, in attorneys, 545 Verbal dichotic listening, 369 and psychopathy, 368 Video recordings, ethical issues, 64 Violation of duty, in personal injury cases, 482 Violence assessing history of, 393–394 assessing risk in adolescents, 385–386 clinical overestimation of future, 155, 171, 385 context dependence, 217, 231 defined, 385 developmental pathways in youth, 386–387 group rates, 231 history of prediction, 154–157 increase among juveniles, 292 models of, 386–387 rates among youth, 386 risk factors in youth, 387–391

617

and risk for dangerousness, 322 technology of predicting, 153 variation of predictors by developmental stage, 392 Violence Risk Appraisal Guide (VRAG), 160–162, 573 Violence risk assessment, 153–154 actuarial instruments for, 159–160 applying in clinical practice, 170–171 at capital sentencing, 225–231 case example, 173–175 categorical vs. probabilistic statements, 172 classification of low- and high-risk groups, 164–165 and clinical constructs of dangerousness, 157–158 clinical history, 174 communicating risk, 171–175 communicating violence potential to parole board, 175 contextualized, 170–171, 217 controversy over transferability to individual prediction, 163 critique of structured professional judgment, 168–170 and detainee age, 205 dynamic risk variables in, 158 Historical/Clinical/Risk Management 20 (HCR-20), 166–168 and history of violence prediction, 154–157 Iterative Classification Tree (ICT) model of, 164–165 protocol in case study, 174–175 reviving research in, 158–159 role in capital sentencing, 215–216 structured professional judgment model of, 165 summary and critique of actuarial research, 162–164 violence history in case example, 174 Violence Risk Appraisal Guide (VRAG) for, 160–162 vs. future dangerousness, 217 Violence Screening Checklist (VSC), 167 Violent behavior failure of SRP-II to predict, 142 predicting, 138 relationship of psychopathy to, 143–145 Violent Offender Risk Assessment Scale (VORAS), 167 Violent Risk Appraisal Guide (VRAG), 160–161 validation of, 161–162, 162 Visitation, misuse of term, 432–433 Volitional impairment, 193, 200 in sex offenders, 192

618

Index

W Waivers by adolescents, 292, 296 effects of mental health issues on, 281 of jurisdiction for juveniles, 315–316 legal test for validity, 267 Warnings section, in forensic psychological reports, 547 Web sites, American Psychology-Law Society, 10 Wechsler tests in adolescent competence evaluations, 298 use in child custody evaluations, 419–420, 424 use in disability example case evaluation, 474 use in independent medical examinations, 454 use in personal injury cases, 497 use in Social Security Administration disability evaluations, 468 West Publishing Company, 542 Westlaw, 37 case depiction screen, 41 committee reports in, 44 document finding in, 46 natural language search in, 47 search page, 39 using terms and connectors in, 47 White inmates, as basis of PCL instruments, 139

Wide Range Achievement Test-4, use in independent medical examinations, 454 Women’s movement, effects on child custody cases, 417 Woodcock-Johnson III, 282, 283, 307 Woodson v. North Carolina, 211, 213 Word Memory Test (WMT), 496, 497 Wrongfulness as component of insanity standards, 111 determination in insanity evaluations, 122–123 perceived threats and, 123

Y Youth Level of Service/Case Management Inventory (YLS/CMI), 321, 395–396, 401–402 Youth Psychopathic Traits Inventory (YPI), 354, 355 Youth violence biological factors in, 388 increases in 1990s, 386 rates of, 386 unknown causal mechanisms of, 387 U.S. DOJ model of predictors, 224 Youtsey v. United States, 76