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Assessing the AccusedNational Child Abuse Defense and Resource
Center26 August 2010
Las Vegas, Nevada
Ann Duncan-Hively, Ph.D., J.D.Wells Hively, Ph.D.
www.duncanhively.com
What?, Why? Who Should Do It?, When?
•Systematic, objective description of psychological functioning of the accused•To assist the attorney in decision making prior to conversation with prosecutor•Must use an expert who meets the Daubert standards•As early in the case as possible
Who Are the Accused?
According to Defense attorney: PeopleAccording to the Prosecutor: Profiles
• Defense’s Assessment: An individual portrait in a distinctive family and community setting– In search of alternate explanations, motivations
and misunderstandings
• Prosecution’s Assessment: A description of how the individual fits a typical offender profile– In search of a convincing label and “method of
operation”
• Why prosecutors like profiles– “Botanizing” the offenders makes prosecution of
the accused convenient and righteous– Profiles are compelling for jury and judge
• What the defense can do– Use your own psychological assessment of
defendant to blow holes in prosecutor’s assumptions
and/or– Use it to provide prosecutor with accurate
information that can contribute to plea bargain or mitigation at sentencing
Child Molesters From the Prosecutor’s Viewpoint
Ken Lanning, FBI SSA (Ret.)“Child Molesters: A Behavioral Analysis,” 2010
download fromhttp://www.missingkids.com
• One man’s logical analysis, based on FBI Behavioral Analysis Unit experience
• Comprehensive and complicated• Reference point for most prosecutors• Prosecutors use it as:– Guide to investigation– Guide to arguing the case to the jury
Situational-ImpulsiveRarely plans or collects
souvenirs
Situational- Impulsive
• Regressed: low self esteem, poor coping ability, stressed,
• Morally Indiscriminate: Impulsive, no conscience
• Inadequate: Handicapped, not understand the norms, “exploring sexual interests.”
• Preferential-Compulsive• Always collects souvenirs
Preferential – Compulsive • Seductive: groom their targeted victims• Inadequate: hang around playground• Sadistic: aroused by pain• Diverse: “try-sexual”
SociopathsA special case
Child PornographyShould Point and Click be an Offense?
Increasing numbers of cases• Recent upsurge in charges because of
improved efficiency of FBI “cookies”• Use of “shills” to entice and entrap the
regressed and/or impulsive candidate• Adolescents and impaired persons are
naïve and do not recognize collecting as an offense
Federal Child Pornography Laws
18 U.S.C. 2256Child Pornography: visual depiction of a person
under 18 engaged in sexually explicit conduct (Includes “sexually suggestive” pictures)
18 U.S.C. 2251,2252,2252AIllegal to:
PossessReceiveDistributeProduce
Child Pornography Offenders From the Prosecutor’s Viewpoint
A.E. Hernandez, Psy. D.
“Psychological and Behavioral Characteristics of Child Pornography Offenders in Treatment,”
Download from www.iprc.unc.edu/G8/Hernandez_position_paper_Global_Symposium_.pdf
Hernandez is the lead author of the “Butner Study,” relating child pornography use to actual contact offenses, published in 2001. This article describes the original study and its follow-up through 2009.
The Butner Study
• 155 men convicted for “possession, receipt or distribution” of child pornography interviewed in a voluntary, prison-based, treatment program
• 26% had documented history of “hands-on sexual act”
• 85% admitted “at least one hands-on sexual offense” by the end of treatment
Used as justification for harsh sentencing
• It is easy to criticize the Butner study– Effects of “treatment” on findings• Prisoners learned the magic words and provided the
investigators with what they wanted
– Over-generalization of findings• Prison population a skewed “sample”
• And remember:– Individual differences in child pornography
viewers are huge– “Predisposition” is an unproven theory
You Should Almost Always Evaluate Accused
Adolescents
Components of the Psychological Evaluation• History
– Family, forensic , sexual, medical (especially head trauma)
• Cognitive Ability– How the client thinks, flaws in language competency
• Present Emotional State– Anxiety, depression, thoughts of suicide, etc
• Personality Structure– How the client typically deals with the world
• Substance Abuse– It’s impact, if any, on all of the above, age of onset, types used
• Current Sexual “Interests”• Risk
– Of future violence– Of future sexual offending
Products of the Psychological Evaluation
• A narrative portrait of the client– Describing both historical and current functioning– Supported by links to multiple sources of objective
information
• A DSM-IV “diagnosis”– Couched in generally accepted psychological/psychiatric
termsProvided in a report for the defense attorney ,under work
product privilege, to assist in preparing the case. The report may also be presented to the court if the attorney chooses to do so.
Format for the DSM-IV Diagnosis• Axis I: Major mental illness• Axis II: Personality Disorders• Axis III: Physical contributors• Axis IV: Environmental Factors• Axis V: Global Assessment of Functioning
(range from 10 to 90, most commonly at 65 for mental health population)
• (Diagnostic and Statistical Manual of Mental Disorders 4th Edition)
www.dsmivtr.org
Uses of the Psychological Evaluation
• To help understand/manage your client• To help counter the prosecutor’s
assumptions about your client• To help cross examine the prosecution’s
experts• To help unearth useful details for the
defense strategy• To help negotiate/mitigate the sentence
Basics of Psychological Measurement
Think Daubert Standard(Fed. R. Evd. 702)
scientifically reliable and relevant
Replicable Procedures (Following the Script)
Questionnaires Structured InterviewsProtocols “Objective Tests”
Why Follow a Script?• Consistently Evocative– Some questions work better than others
• Comprehensive– Covers all the bases
• Equipped with double checks– For exaggeration, minimizing, lying, malingering
Replicable ResultsDon’t fluctuate wildly and mysteriously
Psychologists say “reliable”Correlate with important variables
Psychologists say “valid” Attorneys say “meet the Daubert Standard”
Histories
Respected Structured Interviews and Questionnaires
• Early Developmental Family HistoryVarious schools, child development centers and counseling services alluse these. They are very similar.
• Forensic HistoryGreenberg Forensic History Questionnaire
Developed by S.A. Greenberg, U. of Washington (now deceased) unpublished, but available from www.duncanhively.com
• Sexual HistoryClark Sexual History Questionnaire, Revised (SHQ-R) www.mhs.com
Respected, Quick and PainlessWechsler Abbreviated Scale of Intelligence (WASI)Kaufman Brief Intelligence Test, 2nd Ed. (K-BIT)Both available from www.pearsonassessments.com
The Respected Personality TestsMinnesota Multiphasic Personality Inventory, 2nd Edition (MMPI-2) www.pearsonassessments.com
Caldwell Scoring www.caldwellreport.comMillon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III)www.pearsonassessments.com
The “Famous” Rorschach TestRorschach Comprehensive SystemRorschach Interpretive Assistance Program (RIAP 5)www.rorschachworkshops.comwww.rorschachtraining.comwww.r-pas.org
Substance Abuse
MAST/DAST http://counsellingresource.comSASSI-3/SASSI-A2 www.sassi.com
Sexual Interest: The Penile Plethysmograph
See Texas Department of State Health Services, Council on Sex Offender Treatment, “Use of the Penile Plethysmograph in Assessment and Treatment of Sex Offenders”
www.dshs.state.tx.us/csot
Sexual Interest: The Abel Assessment• Abel Assessment for Sexual Interest-2
http://abelscreening.com• For a simple description, see:
Wells Hively, Ph.D.“Fundamentals of the Abel Assessment”www.duncanhively.com
• For a recent technical review, see:Evan S. Nelson, Ph.D. “Intro to the Abel Assessment of Sexual
Interest” presentation to Virginia Sex Offender’s Treatment Association , March 2010
www.psylaw.com/uploads/ABEL_Assessment_for_VSOTA.pdf• Daubert hearings have been mixed, for example:
Appeals Court of Louisiana, U.S. v. Robinson 94 F. Supp. 2nd 751 (W.D. La., 2000) found that the AASI did meet Daubert Standards
Appeals Court of Massachusetts, Ready v. Commonwealth (824 N.E. 2nd 474) 2005 found that AASI did not meet Daubert Standards
Risk of ViolenceMacarthur Study (2001)www.macarthur.virginia.edu/risk.htmlLevel of Service Inventory (LSI-R)www.assessments.comSpousal Assault Risk Assessment Guide (SARA)www.mhs.comDanger Assessment (prediction of murder)www.dangerassessment.org
Risk of Sexual ReoffendingStatic 99, Stable 2007, Acute 2007
http://soraf.cyzap.nethttp://www.publicsafety.gc.ca(Search on Dynamic Supervision Project)
J-SOAP-II http://www.csom.org/pubs/JSOAP.pdf
Lie DetectionAmerican Psychological Association, “The Truth About Polygraphs” www.apa/org/research/action/polygraph.aspxDamphousse et al., “Assessing the Validity of Voice Stress Analysis”www.ncjrs.gov/pdffiles1/nij/grants.219031.pdf
Neither technique is objective, reliable, or valid
TRY ASSESSING YOUR CLIENTYOU MIGHT FIND IT HELPFUL
