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Forensic Neuropsychology
Introduction to the Legal SystemMay 12, 2014
Law and Mental Health
Domains of interaction Competency
▪ Criminal▪ Civil
Criminal responsibility (MSO) Mental injury Profiling, jury selection Juvenile, family matters
Mental health professionals as experts
Law-mental health organizations American Psychology-Law Society (APA Div. 41) American Academy of Forensic Psychology
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
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
Paradigm Conflicts
Free Will vs. Determinism can’t differentiate behavior which is
“forced” or “overborne” vs. freely chosen example: “voluntary” behavior and the
law of effect example: “voluntary” intoxication
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.)
Definition of Expert Witness
Individual with scientific, technical, or other specialized knowledge or technical who, by nature of knowledge, skill, experience, education, or training is qualified to render opinions (or otherwise) 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.
Expert testimony must be based upon sufficient facts or data the product of reliable principles and methods the product of applying the principles and methods
reliably to the facts of the case.
Adapted from Federal Rules of Evidence
“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’s “Introduction” in Reference Manual on Scientific Evidence, Second Edition (Federal Judicial Center, 2000)
Scientific Evidence and Experts
Differences between clinical and scientific “opinions”?
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., Newton’s 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/relevance▪ Kumho Tire Co, LTD v. Carmichael (1999)-not just science, but also
technical
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 technique’s specific application on which the expert testimony is to be based
Daubert v. Merrell Dow
Reasoning or methodology underlying testimony must be “scientifically valid”
Judge as “gatekeeper” “Daubert Criteria” for admissibility
▪ 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? What does the “known or potentially known error rate” standard mean? Can we meet it?
General Electric v. Joiner
Reinforced gatekeeper function of trial judge
Upheld trial court’s refusal to admit certain testimony because it was not “relevant”
Thus, not just reliability, but relevance as a standard
“[N]othing 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.”
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.
Clinical Levels of Inference in Expert Testimony
Describing behavioral observation (“he was yelling”)
Inferring a general mental state (“he appeared agitated”)
Fitting the mental state into a theoretical construct (“his behavior was consistent with a dysexecutive syndrome”)
Diagnosis (“his behavior suggests a personality change due to organic brain damage in the frontal lobe”)
Levels of Inference (cont’d)
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 couldn’t control his behavior because of brain damage”)
Ultimate legal issue (“he was insane at the time of the offense”)
What is law?
1) any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and justice based upon collective human experience.
“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 court system as vehicle for enforcement
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 statutes made up by more specialized
bodies (e.g., DHHS)
Types of Law (cont’d)
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
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
Basic Court Structure (cont’d)
Federal Courts Trial court: district court is trial court (N=94) Appellate court: 2 levels: Circuit Court of Appeals
(Atlanta; one of 13); US Supreme Court State Judicial System (Florida)
Trial court: circuit court is trial court (N=20)▪ 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 County Courts (N = 67)
Disputes of $15K or less
Classifications of Law
Criminal vs. Civil: criminal: US/state v. individual civil: individual v. individual (contracts,
property, torts, wills) Substantive vs. procedural:
substantive: rights, duties/responsibilities procedural: how substantive law is applied
Statutory vs. Common statutory: established by legislatures common: established by judges (precedent)
Criminal Law
“Crime” is any act or omission of an act in violation of a public law Focus on harming public safety/welfare
Levels of criminal activity Felony (more serious > 1 year) Misdemeanor (less serious > 5 days) Violation (e.g., traffic)
States develop criminal statutes; but there is a “Model Penal Code” (ALI, 1962/1981) Assists states in standardizing penal code Specifies ‘mens rae’ conditions That which is not forbidden is allowed
Civil Law
Governs private relationships between members of a community, or the rights of individual, private citizens Civil Commitment Guardianship Wills and probate Tort law
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., civil commitment); clear and convincing evidence
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
Phases of Attorney-Psychologist Interaction
Preassessment phase What’s the case about? What’s my role?
▪ Fact witness▪ Expert witness▪ Litigation consultant
What’s the time-frame? Availability of the plaintiff/defendant? Fee schedule
Greiffenstein & Cohen, 2005
Phases of Attorney-Psychologist Interaction (cont’d)
Assessment Phase Review of outside records Direct interview Collateral report Neuropsychological testing Specialized testing
Greiffenstein & Cohen, 2005
Phases of Attorney-Psychologist Interaction (cont’d)
Report-writing Differences between clinical and forensic
reports▪ Focus on legally relevant factors▪ Limit discussion of irrelevant background info▪ Full disclosure of information sources▪ Discriminate opinion/conclusions from facts
Key features▪ Causation analysis▪ Functional analysis▪ Accurate attribution of facts
Phases of Attorney-Psychologist Interaction (cont’d)
Trial Phase Discovery
▪ Interrogatories▪ Affadavits▪ Depositions▪ Records exchange
Admissibility (see previous discussion) Deposition/testimony
▪ Qualification▪ Direct Examination▪ Cross-Examination
Post-Trial PhaseGreiffenstein & Cohen, 2005
