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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. What?, Why? Who Should Do It?, When?. Systematic, objective description of psychological functioning of the accused

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

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

Wells Hively, Ph.D.

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


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


  • 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

  • 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

  • Regressed: low self esteem, poor coping ability, stressed,
  • Morally Indiscriminate: Impulsive, no conscience
  • Inadequate: Handicapped, not understand the norms, “exploring sexual interests.”

Always collects souvenirs


Preferential – Compulsive

  • Seductive: groom their targeted victims
  • Inadequate: hang around playground
  • Sadistic: aroused by pain
  • Diverse: “try-sexual”

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:





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

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


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
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)

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)

Questionnaires Structured 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”

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

  • Sexual History

Clark Sexual History Questionnaire, Revised (SHQ-R)

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

the respected personality tests
The Respected Personality Tests

Minnesota Multiphasic Personality Inventory, 2nd Edition (MMPI-2)

Caldwell Scoring

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

the famous rorschach test
The “Famous” Rorschach Test

Rorschach Comprehensive System

Rorschach Interpretive Assistance Program (RIAP 5)

psychopathy sociopathy

The Hare Psychopathy Checklist

substance abuse
Substance Abuse



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”

sexual interest the abel assessment
Sexual Interest: The Abel Assessment
  • Abel Assessment for Sexual Interest-2
  • For a simple description, see:

Wells Hively, Ph.D.“Fundamentals of the Abel Assessment”

  • 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

  • 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)

Level of Service Inventory (LSI-R)

Spousal Assault Risk Assessment Guide (SARA)

Danger Assessment (prediction of murder)

risk of sexual reoffending
Risk of Sexual Reoffending

Static 99, Stable 2007, Acute 2007

(Search on Dynamic Supervision Project)


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”

Neither technique is objective, reliable, or valid

try assessing your client