Assessing the Accused
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Assessing the Accused National Child Abuse Defense and Resource Center 26 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

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Ann duncan hively ph d j d wells hively ph d duncanhively

Assessing the AccusedNational Child Abuse Defense and Resource Center26 August 2010Las Vegas, Nevada

Ann Duncan-Hively, Ph.D., J.D.

Wells Hively, Ph.D.

www.duncanhively.com


What why who should do it when

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

Who Are the Accused?

According to Defense attorney: People

According to the Prosecutor: Profiles


Ann duncan hively ph d j d wells hively ph d duncanhively

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”


Ann duncan hively ph d j d wells hively ph d duncanhively

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

Child Molesters From the Prosecutor’s Viewpoint

Ken Lanning, FBI SSA (Ret.)“Child Molesters: A Behavioral Analysis,” 2010download from

http://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 impulsive rarely plans or collects souvenirs

Situational-ImpulsiveRarely plans or collects souvenirs


Ann duncan hively ph d j d wells hively ph d duncanhively

Situational- Impulsive

  • Regressed: low self esteem, poor coping ability, stressed,

  • Morally Indiscriminate: Impulsive, no conscience

  • Inadequate: Handicapped, not understand the norms, “exploring sexual interests.”


Ann duncan hively ph d j d wells hively ph d duncanhively

Preferential-Compulsive

Always collects souvenirs


Ann duncan hively ph d j d wells hively ph d duncanhively

Preferential – Compulsive

  • Seductive: groom their targeted victims

  • Inadequate: hang around playground

  • Sadistic: aroused by pain

  • Diverse: “try-sexual”


Sociopaths

Sociopaths

A special case


Child pornography

Child Pornography

Should Point and Click be an Offense?


Increasing numbers of cases

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

Federal Child Pornography Laws

18 U.S.C. 2256

Child Pornography: visual depiction of a person under 18 engaged in sexually explicit conduct (Includes “sexually suggestive” pictures)

18 U.S.C. 2251,2252,2252A

Illegal to:

Possess

Receive

Distribute

Produce


Child pornography offenders from the prosecutor s viewpoint

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

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


Ann duncan hively ph d j d wells hively ph d duncanhively

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

You Should Almost Always Evaluate Accused Adolescents


Components of the psychological evaluation

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

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 terms

      Provided 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

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

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

Basics of Psychological Measurement

Think Daubert Standard

(Fed. R. Evd. 702)

scientifically reliable and relevant


Replicable procedures following the script

Replicable Procedures (Following the Script)

QuestionnairesStructured Interviews

Protocols“Objective Tests”


Why follow a script

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 results

Replicable Results

Don’t fluctuate wildly and mysteriously

Psychologists say “reliable”

Correlate with important variables

Psychologists say “valid”

Attorneys say “meet the Daubert Standard”


Histories

Histories


Respected structured interviews and questionnaires

Respected Structured Interviews and Questionnaires

  • Early Developmental Family History

    Various schools, child development centers and counseling services all

    use these. They are very similar.

  • Forensic History

    Greenberg Forensic History Questionnaire

    Developed by S.A. Greenberg, U. of Washington (now deceased) unpublished, but available from www.duncanhively.com

  • Sexual History

    Clark Sexual History Questionnaire, Revised (SHQ-R) www.mhs.com


Respected quick and painless

Respected, Quick and Painless

Wechsler Abbreviated Scale of Intelligence (WASI)

Kaufman Brief Intelligence Test, 2nd Ed. (K-BIT)

Both available from www.pearsonassessments.com


The respected personality tests

The Respected Personality Tests

Minnesota Multiphasic Personality Inventory, 2nd Edition (MMPI-2) www.pearsonassessments.com

Caldwell Scoring www.caldwellreport.com

Millon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III)

www.pearsonassessments.com


The famous rorschach test

The “Famous” Rorschach Test

Rorschach Comprehensive System

Rorschach Interpretive Assistance Program (RIAP 5)

www.rorschachworkshops.com

www.rorschachtraining.com

www.r-pas.org


Psychopathy sociopathy

Psychopathy/Sociopathy

The Hare Psychopathy Checklist www.hare.org


Substance abuse

Substance Abuse

MAST/DAST http://counsellingresource.com

SASSI-3/SASSI-A2 www.sassi.com


Sexual interest the penile plethysmograph

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

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 violence

Risk of Violence

Macarthur Study (2001)

www.macarthur.virginia.edu/risk.html

Level of Service Inventory (LSI-R)

www.assessments.com

Spousal Assault Risk Assessment Guide (SARA)

www.mhs.com

Danger Assessment (prediction of murder)

www.dangerassessment.org


Risk of sexual reoffending

Risk of Sexual Reoffending

Static 99, Stable 2007, Acute 2007

http://soraf.cyzap.net

http://www.publicsafety.gc.ca

(Search on Dynamic Supervision Project)

J-SOAP-II http://www.csom.org/pubs/JSOAP.pdf


Lie detection

Lie Detection

American Psychological Association, “The Truth About Polygraphs” www.apa/org/research/action/polygraph.aspx

Damphousse 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 client

TRY ASSESSING YOUR CLIENT

YOU MIGHT FIND IT HELPFUL


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