Forensic Neuropsychology

1. Forensic Neuropsychology Introduction to the Legal System May 15, 2008

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 todifferent philosophies • Psychologists and attorneys frequentlyuse evidence differently • Psychologists and attorneys often havedifferent ideas about causation • Psychologists and attorneys operate according todifferent rules

6. 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

7. Probability Conflicts • Psychological “proof” isprobabilistic, rarely absolute • Legal “proof” isprobabilistic, 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. 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

9. “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)

10. 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., 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 • Kumho Tire Co, LTD v. Carmichael (1999)-not just science, but also technical

11. 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

12. 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?

13. 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.”

14. 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.

15. 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”

16. 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”)

17. 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

18. 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)

19. 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

20. 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

21. 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

22. 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”

23. Civil Law • Commitment • Guardianship • Wills and probate • Tort law

24. Basic Court Structure (cont’d) • 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

25. 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

26. 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

27. 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

28. Phases of Attorney-Psychologist Interaction (cont’d) • Assessment Phase • Review of outside records • Direct interview • Collateral report • Neuropsychological testing • Specialized testing Greiffenstein & Cohen, 2005

29. Phases of Attorney-Psychologist Interaction (cont’d) • Report-writing • Differences between clinical and forensic reports (see Greiffenstein & Cohen, 2005, p. 59)

30. Phases of Attorney-Psychologist Interaction (cont’d) • Trial Phase • Discovery • Interrogatories • Depositions • Records exchange • Admissibility (see previous discussion) • Deposition/testimony • Qualification • Direct Examination • Cross-Examination • Post-Trial Phase Greiffenstein & Cohen, 2005