Foundations, Ethics, Precedents, Testing, Opinions Flashcards
Jenkins v United States
1962
DC Circuit Court ruled psychologists could provide expert opinions about mental illness at the time of an alleged event
Physicians were not uniquely qualified to offer testimony on matters of mental disorder
Brown v BOE
1954
First time psychological research was utilized in a major (SCOTUS) case
Clark doll studies
Dates for important organizations
APLS 1969
ABFP 1978
APA recognized forensic psychology as a subspecialty in 2001
Specialty Guidelines adopted by APA in 2011
How is “specialized knowledge” defined in the FRoE
An expert should provide re information about a subject than a lay person
Occupational status in and of itself is not sufficient
Kumho Tire v Carmichael
1999
Daubert criteria applied to scientific, technical, and specialized knowledge - Daubert applies to nonscientific testimony (soft sciences)
Mental health testimony needed to meet Daubert criteria to be admitted into court. Does the expert have sufficient specialized knowledge to assist the trier of fact?
Tippins and Wittmann Clinical Inference Hierarchy
Our observations
Inferences based on our observations
Implications for the inferences
Prescriptive recommendations
Steps to documenting ethical decisions
Identify the dilemma
Seek info and guidance from sources of professional authority
Seek info and guidance from professional journals
Seek info and guidance from professional workshops
Record steps taken to resolve the issue
Consult
Articulate the manner in which the final decision was made
Keith-Spiegel and Koocher’s ethical decision making process
Describe the dilemma and various related issues
Identify those who are likely to be impacted by the decision
Specify the considerations owed and basis for each
List applicable standards and professional guidelines
Outline alternative actions to include consequences and benefits
Delineate changes in circumscribed that could cause a different axn
Identify actions to take in the event of adverse consequences
Estelle v Smith
1981
Application of fifth (right to remain silent) and sixth (criminal protections) to forensic mental health
Limited use of competency evaluations, emphasized importance of notification of purpose, also included protections against the defendant participating with only defense-retained experts
Dilemma of bifurcating MSO trials…
MSO evaluations may include incriminating information
The first attempt to resolve this was to bifurcate trials
(Guilt, Sanity)
This limited the potentially prejudicial testimony of the expert solely to the second phase of trial
BUT this was ruled unconstitutional as it prevents the defendant from introducing all relevant testimony in their defense
Exceptions to Fifth Amendment protections
Juvenile cases - considered “quasi-criminal”
In re Gault remedied this and brought adult protections over
SVP cases - especially if the prosecution seeks commitment rather than criminal conviction
Child custody evals may yield incriminating information if it is not protected by attorney-client privilege
Right to Counsel in FMH Evaluations
Right to counsel doesn’t just apply to the trial phase of a case
However, most courts (supported by Estelle v Smith) have held that defendants do not have a right to counsel during evaluations
Can be useful for data collection, but can also present third party concerns
Ake v Oklahoma
1985
Guarantees indigent defendants the right to an evaluation and even a second opinion, but not necessarily the right to an evaluator of their choosing
Edney v Smith
1976
States (prosecutors) should have access to experts that the defendant has decided not to use in criminal cases once they have raised an MSO defense
Prevents the defense from “shopping” and taking unfriendly experts “off the market”
Duty to Protect and being privately retained
Disclosure of problematic information (e.g., past abuse of a child) may be protected by attorney-client privilege if you are privately retained
Disclosures of ongoing abuse should be guided by your own ethical compass
Ethical considerations in the evaluation process
Being both expert and consultant is not recommended
Role expectations and evaluation objectives are the most important matters to be sorted out with the attorney
Avoid pro bono and contingency work
Take steps to inform evaluee of your role, don’t do work on a previous psychotherapy patient or vise versa, advise the evaluee of reasonably foreseeable disclosures
Suggested information for a notification of purpose
Who the evaluator is conducting the evaluation for
Who will receive the report
Legal issue at hand
Reminder that you are not their doctor/treatment provider
Option to not answer questions (and consequences for doing so)
Expectation that they will do their best and be honest
May ask for breaks
Who is paying the examiner
Should an evaluee decline to participate in an evaluation…
Do not threaten them (-_-)
Advise them of any sanctions that may be imposed
Give them the opportunity to talk to their counsel for guidance
Advise on whether you’re required to offer an opinion anyway
In re Lifschutz
1970
A psychiatrist cannot assert privilege for information gathered in treatment when the patient has waived privilege
Jaffee v Redmond
1996
Federal courts upheld psychotherapist-patient privilege
Because the police officer wasn’t raising an MSO defense, her mental health records were protected and privileged
LCSWs were included in the definition of “psychotherapist”
The “Hand” Rule
We should consider the probability a negative event will occur, the gravity of the harm that would result, and the cost of taking steps to prevent the negative event
Named after Judge Hand (1947)
Fifth Amendment and Case Law
4 notable cases
Estelle v Smith (1981) - Forcing a defendant to sit for an exam solely for sentencing purposes violates the 5th and 6th Amendments // Can’t raise MSO and then refuse to cooperate
Buchanan v Kentucky (1987) - DA can use results of a court-ordered comp eval on any MSO defense raised by the defense without violating 5th Amendment (because mental state defenses forfeit this right)
Kansas v Cheever (2005) - No 5th Amendment protections when defense raises voluntary intoxication defense
In re Gault (1967) - 5th Amendment protections should apply to kids
Reciprocal Discovery
Controversial…may violate attorney-client privilege
The prosecution can gain access to the defense experts’s documents when the defense requests access to the prosecutor’s discovery
Allen v Illinois
SCOTUS found 5th Amendment protections did not apply to SVP commitment cases because commitment was seen as “treatment” and not punishment
Contradicts the opinion in In re Gault, which noted that 5th Amendment protections should apply in any situation that results in a “massive deprivation” of liberty (juvie cases being quasi-criminal)
Sixth Amendment
Right to the presence of counsel
Right to effective assistance of counsel
Pros and Cons to attorney presence during an eval
You get to observe the attorney-client relationship
Attorney presence could help to facilitate the interview
Third party observer effects
It’s not necessary
Could threaten test security
Impact of test validity (observer effects)
Pros and Cons to recording interviews
May be impractical or change the nature of the responses you get from the defendant
Weigh against the legitimate interest to have an accurate recording of the event and verbatim responses
Duty associated with Tarasoff
Duty to PROTECT
You can be held liable for failing to take action to protect future victims
Acquiring state and federal crimes
Some criminal charges have the potential to lead to both state and federal charges (armed robbery in a state, of a federally owned bank)
Both state and feds can prosecute because they are separate “sovereigns” (entities) and aren’t violating double jeopardy for that reason
Preemption doctrine - if state and federal laws exist, the federal law supersedes the state laws on whatever the issue is
