Forensic Neuropsychology

1
Forensic Neuropsychology

• Introduction to the Legal System
• May 25, 2006

2
Law and Mental Health

• Domains of interaction
• competency
• criminal responsibility
• mental injury
• juvenile, family matters
• Mental health professionals as experts
• Law-mental health organizations
• American Psychology-Law Society (APA Div. 41)
• American Academy of Forensic Psychology

3
Lawyer-Psychologist Interactions

• Training Issues
• few psychologists with specific legal training
• few lawyers knowledgeable about psychology
• Attitudinal Differences
• emphasis on civil liberties vs. trying to help
• Free-Will vs. Determinism
• Simple vs. Multiple Causation

4
Case Studies in Forensic Neuropsychology
5
When Worlds Collide

• Psychologists and attorneys often operate
  according to different philosophies
• Psychologists and attorneys frequently use
  evidence differently
• Psychologists and attorneys often have different
  ideas about causation
• Psychologists and attorneys operate according to
  different rules

6
Paradigm Conflicts

• Free Will vs. Determinism
• cant differentiate behavior which is forced or
  overborne vs. freely chosen
• example voluntary behavior and the law of
  effect
• example voluntary intoxication

7
Probability Conflicts

• Psychological proof is probabilistic, rarely
  absolute
• Legal proof is probabilistic, then absolute
• Preponderance of evidence (51)
• Clear and convincing evidence (?75)
• Beyond a reasonable doubt (95)
• After burden is met, decision is binary and
  absolute (absolutely guilty, absolutely liable,
  etc.)

8
Paradigm Conflicts (contd)

• Process of Fact-Finding
• cooperative (behavioral science) vs. adversarial
  (law)
• law seeks to render justice, not necessarily seek
  the truth (persuasion may incorporate only
  favorable findings)
• differences in reliance on past information or
  history (e.g., past criminal behavior)
• Relevance of Diagnosis
• diagnosis important in clinical care, but largely
  irrelevant to mental health law (except that a
  diagnosis exists)

9
Definition of Expert Witness

• Individual who, by nature of education,
  experience, or training, is qualified to render
  opinions that will assist the trier of fact
  (i.e., judge, jury) in reaching an appropriate
  decision in the legal matter at hand. Lay
  witnesses are allowed to testify only as to their
  experiences (perceptions, observations,
  memories). Expert witnesses can testify as to
  opinions.

Adapted from FRE
10
In this age of science, we must build legal
foundations that are sound in science as well as
in law. Scientists have offered their help. We in
the legal community should accept that offer. We
are in the process of doing so. Associate
Justice Stephen Breyer Introduction in
Reference Manual on Scientific Evidence, Second
Edition (Federal Judicial Center, 2000)
11
Scientific Evidence and Experts

• Differences between clinical and scientific
  opinions (wisdom v. fact, others?)
• Scientific Evidence Standards
• 1975 Publication of Federal Rules of Evidence
• Before 1993
• Frye v. U.S. (1923 Appellate ruling) the
  general acceptance standard (e.g., Newtons law
  vs. moon-behavior relationship)
• After 1993
• Supreme Court Trilogy
• Daubert v. Merrell Dow Pharmaceuticals
  (1993)-evidence standards
• General Electric Company v. Joiner
  (1997)-deductive process
• Kumho Tire Co, LTD v. Carmichael (1999)-not just
  science, but also technical

12
Frye Standards

• Frye-1 Fundamental scientific principle or
  discovery
• Frye-2 The technique used for applying the
  fundamental scientific principle or discovery
• Frye-3 The techniques specific application on
  which the expert testimony is to be based

13
Daubert v. Merrell Dow

• Reasoning or methodology underlying testimony
  must be scientifically valid
• Judge as gatekeeper
• Daubert Criteria for admissability
• Whether theories or techniques on which testimony
  rests are based on a testable hypothesis
• Whether the theory or technique has been
  subjected to peer review
• Whether the technique has known or potentially
  known error rate
• Whether the method/theory is generally accepted
  in the scientific community
• Discussion point What are the implications of a
  generally accepted standard?

14
General Electric v. Joiner

• Reinforced gatekeeper function of trial judge
• Upheld trial courts refusal to admit certain
  testimony because it was not relevant
• Thus, not just reliability, but relevance as a
  standard
• Nothing in either Daubert or the Federal Rules
  of Evidence requires a district court to admit
  opinion evidence which is connected to existing
  data only by the ipse dixit personal opinion of
  the expert. A court may conclude that there is
  simply too great an analytical gap between the
  data and the opinion proffered.

15
Kumho Tire v. Carmichael

• Extended expert testimony beyond scientific
  evidence to all expert testimony based on
  skill-experience-based observation
• Four Daubert criteria may be relevant, but are
  not essential other factors may be operative in
  the particular case
• Afterwards, Rule 702 of FRE modified
• If scientific, technical, or other
  specialized knowledge will assist the trier of
  fact to understand the evidence or to 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 if (1) the testimony is
  based upon sufficient facts or data, (2) the
  testimony is the product of reliable principles
  and methods,and (3) the witness has applied the
  principles and methods reliably to the facts in
  case.

16
Clinical Levels of Inference in Expert Testimony

• Describing behavioral observation (he was
  yelling)
• Inferring a general mental state (he was
  disinhibited)
• Fitting the mental state into a theoretical
  construct (his behavior was consistent with a
  frontal syndrome)
• Diagnosis (his behavior suggests a personality
  change due to organic brain damage

17
Levels of Inference (contd)

• Relating the formulation to legally relevant
  behavior (at the time of the offense, he was
  unable to control his violent impulses)
• Elements of the ultimate legal issue (Although
  he understood right from wrong when the offense
  committed, he couldnt control his behavior
  because of brain damage
• Ultimate legal issue (he was insane at the time
  of the offense)

18
What is law?

• a principle or rule of conduct so established as
  to justify a prediction with reasonable certainty
  that it will be enforced by the courts if its
  authority is challenged
• four main elements
• rule of conduct
• enforceable
• reasonable certainty
• enforcement through the courts

19
Types of Law

• Constitutional Law overarching establishes
  other types of law most important constitutional
  amendments
• 5th privilege against self-recrimination
• 6th right to counsel
• 14th right to due process under the law
• Statutory Law established by legislature (often
  at state level)
• some statues made up by more specialized bodies
  (e.g., DHHS)

20
Types of Law (contd)

• Case Law decisions made by judiciary and used
  as precedent (e.g., Frye, Dusky)
• not just interpretation, but makes suggestions
  (e.g., when law is found unconstitutional)
• Administrative Law rules and regulations
  constructed by executive branch

21
Basic Structure of Court System

• Basic elements legislature (makes law),
  executive (enforces law), judiciary
  (interprets law), but there are exceptions
• Criminal law handled by states, unless a
  federal crime
• interstate cimes
• offenses targeting federal official
• violations of civil rights law
• offenses on, or involving, federal property

22
Classifications of Law

• Criminal vs. Civil
• criminal state v. individual
• civil individual v. individual (contracts,
  property, torts, wills)
• Substantive vs. procedural
• substantive rights, duties/responsibilities
• procedural how substantive law is applied

23
Criminal Law

• Crime is any act or omission of an act in
  violation of a public law
• Levels of criminal activity
• Felony
• Misdemeanor
• States develop criminal statutes but there is a
  Model Penal Code

24
Civil Law

• Commitment
• Guardianship
• Wills and probate
• Tort law

25
Basic Court Structure (contd)

• Federal Courts
• Trial court district court is trial court
  (Florida has 8 districts)
• Appellate court 2 levels Circuit Court of
  Appeals (Atlanta one of 12) US Supreme Court
• State Judicial System
• Trial court
• 2 levels of general jurisdiction trial courts
  (minor, major criminal/civil)
• special jurisdiction courts (juvenile court,
  divorce court)
• Appellate court 2 levels District Court of
  Appeals, State Supreme Court

26
Types of Judicial Proceedings

• Criminal beyond reasonable doubt burden on
  prosecution
• Civil preponderance of evidence, burden on
  plaintiff
• Administrative clear and convincing burden on
  plaintiff
• Quasi-Criminal involving significant
  deprivation of liberty (e.g., commitment) clear
  and convincing evidence

27
Basic Principles of Psychologist-Attorney
Interactions

• Understand the legal system
• Practice good neuropsychology/clinical psychology
• Adhere to ethical principles
• Be courtroom familiar/saavy

Greiffenstein Cohen, 2005
28
Phases of Attorney-Psychologist Interaction

• Preassessment phase
• Whats the case about?
• Whats my role?
• Fact witness
• Expert witness
• Litigation consultant
• Whats the time-frame?
• Availability of the plaintiff/defendant?
• Fee schedule

Greiffenstein Cohen, 2005
29
Phases of Attorney-Psychologist Interaction
(contd)

• Assessment Phase
• Review of outside records
• Direct interview
• Collateral report
• Neuropsychological testing
• Specialized testing

Greiffenstein Cohen, 2005
30
Phases of Attorney-Psychologist Interaction
(contd)

• Report-writing
• Differences between clinical and forensic reports
  (see Greiffenstein Cohen, 2005, p. 59)

31
Phases of Attorney-Psychologist Interaction
(contd)

• Trial Phase
• Discovery
• Interrogatories
• Depositions
• Records exchange
• Admissibility (see previous discussion)
• Deposition/testimony
• Qualification
• Direct Examination
• Cross-Examination
• Post-Trial Phase

Greiffenstein Cohen, 2005