Reference Manual on Scientific Evidence Third Edition (2011) / Chapter Skim
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Reference Guide on Mental Health Evidence--Paul S. Appelbaum
Reference Guide on Mental Health Evidence--Paul S. Appelbaum
Pages 813-896
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Prediction of violence risk, 846 2. Predictions of future functional impairment, 851 F. Treatment of Mental Disorders, 852 1.
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883 7. Was the evaluee's functional impairment assessed directly?
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Range of Legal Cases in Which Mental Health Issues Arise Evidence presented by mental health experts is common to a broad array of legal cases -- criminal and civil. In the criminal realm, these include assessments of defendants' mental states at the time of their alleged offenses (e.g., criminal responsibility and diminished capacity1)
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1997) (finding that depression and anxiety disorders may constitute a mental disability under the ADA)
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. 16. Predicting the Past: Retrospective Assessment of Mental States in Litigation (Robert I
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However, most experienced forensic evaluators appear to believe that conclusions regarding past mental state can often be reached with a reasonable degree of certainty if sufficient information is available.18 The most straightforward task for a mental health professional is to evaluate a person's current mental state. In criminal justice settings, concerns about a person's current competence to exercise or waive rights will call for such evaluations (e.g., competence to stand trial or to represent oneself at trial)
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Diagnosis versus functional impairment A diagnosis of mental disorder per se will almost never settle the legal question in a case in which mental health evidence is presented. However, a diagnosis may play a role in determining whether a claim or proceeding can go forward.
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Many of the legal questions to which mental health evidence may be relevant will involve a determination of the influence of a mental state or disorder on one or both of these sets of capacities. The mere presence of a mental disorder will almost always be insufficient for that purpose.
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B Mental Health Experts Evidence related to mental state and mental disorders may be presented by experts from a number of disciplines, but it is most commonly introduced by psychiatrists or psychologists.
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Elective time is usually available to pursue particular interests in greater depth or to engage in research. Didactic seminars, including sessions on neuroscience, genetics, psychological theory, and treatment, and supervision sessions with experienced psychiatrists (and sometimes mental health professionals from other disciplines)
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Fellowship training in forensic psychiatry involves a 1-year program in which fellows are taught forensic evaluation for civil and criminal litigation and become involved in the treatment of persons with mental disorders in the correctional system.53 They also learn about the rules and procedures for providing evidence in legal proceedings and for working with attorneys. However, training and/or board certification in forensic psychiatry are not necessarily the best qualification for expertise in a particular case.
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1990) (excluding the expert testimony of a social psychologist holding a Ph.D.
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At present, two states permit psychologists who complete additional training requirements to prescribe medications, although physicians' groups remain strongly opposed to the practice.63 Fellowships in subspecialty areas of psychology are becoming more common, although they are not always linked to subspecialty certification processes. Among the areas in which fellowships have been developed is forensic psychology, generally a 1-year program, with didactic and clinical training in forensic evaluation.64 Certification in forensic psychology through an examination process is available for psychologists who have completed a fellowship in the field or who have at least 5 years of experience in forensic psychology.65 As with psychiatry, whether the expertise of a forensic psychologist is relevant to a particular legal issue will vary and needs to be considered on a case-by-case basis.
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can achieve a status that allows them to provide psychotherapy and to dispense medications, although they may need to have a supervisory arrangement with a physician for the latter.70 Other master's-level mental health professionals include persons who may be called psychologists, counselors, marital and family therapists, group therapists, and a variety of other terms.71 Because state law generally does not regulate the 66. See, e.g., the curricula for social work training at Columbia (http://www.columbia.edu/cu/ ssw/admissions/pages/programs_and_curriculum/index.html) and at Smith (http://www.smith.edu/ ssw/geaa/academics_msw.php)
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1979) (affirming trial court's rejection of expert testimony on defendant's mental state from a professor of economics who was also a certified psychoanalyst)
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Nomenclature and typology -- DSM-IV-TR and DSM-5 The standard nomenclature and diagnostic criteria for mental disorders in use in the United States are embodied in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, and now in its fourth edition with revised text (DSM-IV-TR) .74 It is anticipated that the next edition of the manual (DSM-5)
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DSM-IV-TR at 356. 78. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3d ed.
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80. Harold A Pincus et al., Subthreshold Mental Disorders: Nosological and Research Recommendations, in Advancing DSM: Dilemmas in Psychiatric Diagnosis 129 (Katharine A
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93. American Psychiatric Association, DSM-5 Development, DSM-5: The Future of Psychiatric Diagnosis, available at http://www.dsm5.org. 94. These brief summaries of complex and variable conditions are meant to provide an orientation to the nature and course of major mental disorders.
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These are chronic, and often relapsing, disorders, though successful recovery, with or without treatment, is possible.100 • Personality disorders are inflexible, maladaptive, and enduring patterns of perceiving and relating to oneself, other people, and the external world that cause functional impairment and distress.101 • Antisocial personality disorder is often seen in criminal courts, because it is marked by a pervasive pattern of disregard for and violation of the rights of others. Personality disorders tend to be longstanding and difficult to treat.102 • Dementia is marked by progressive impairment of cognitive abilities, including memory, language, motor functions, recognition of objects, and executive functioning.103 The most common form of dementia is Alzheimer's disease, the incidence of which increases with age and the cause of which remains unclear, although in many cases genetics seem 95. Psychotic conditions involve some degree of detachment from reality, characterized by delusional thinking and hallucinatory perceptions.
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, delirium, and mental retardation.105 The causes of mental disorders remain to be elucidated. However, as a general proposition, it appears that many mental disorders may derive from a genetic predisposition that is activated by particular environmental circum stances.106 This hypothesis is supported by extensive studies of the genetics of mental disorders107 and epidemiological studies showing a relationship between various environmental factors and occurrence of illness.108 Only rarely at this point, however, have particular genes and given stressors been linked to a particular disorder.
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a. Clinical examination Direct clinical examination of the person whose condition is at issue is still the core of most mental health evaluations.111 In contrast to general medicine, where examination involves the laying on of hands, evaluation of mental disorders is accomplished by careful elicitation of symptoms and observation of signs.
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b. Structured diagnostic interviews When a diagnosis is based solely on a clinical examination, which is still most frequently the case, the clinician is being relied upon to conduct a complete evaluation and to apply the diagnostic criteria accurately.
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assess multiple dimensions of personality and mental state; research over many years of use has established correlations between patterns of performance on the MMPI and particular mental disorders, which may be helpful in establishing or confirming a diagnosis, particularly when the results of a clinical examination are inconclusive.125 Tests of intelligence, such as the Wechsler Adult Intelligence Scale (WAIS-III) , are important in establishing the presence of mental retardation and determining its severity.126 Projective tests, such as the famed Rorschach ink-blot test or the T hematic Apperception Test, were once used more widely than they are today as a means of probing the nature and content of a person's thought processes; although results were said to be helpful for diagnostic purposes, questions about the reliability and validity of projective measures have limited their use.127 Other tests target personality traits, such as psychopathy, or behavioral characteristics, such as impulsivity, and may be helpful but not determinative in making a diagnosis of mental disorder.128 122. See, e.g., John E
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Imaging studies Progress has been made in recent years in the use of radiological techniques to assist in the diagnosis and evaluation of mental disorders. With the development of computer-assisted tomography (CAT or CT)
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Infectious diseases such as HIV, s yphilis, and Lyme disease can present as mental disorders otherwise indistinguishable from depression, mania, and acute psychosis; all can be detected with appropriate blood tests.138 Behavioral abnormalities that may be mistaken for mental disorders can be caused by several forms of epilepsy, which are usually detectable 133. Id. 134. William R
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On the other hand, despite many years of investigation of possible correlates of the major mental disorders in blood, urine, and other bodily fluids, there are no laboratory tests that can identify schizophrenia, bipolar disorder, major depression, or other mental disorders.140 f. Previous medical and mental health records Among the most helpful adjunctive sources of information for a diagnostic assessment are the person's records of previous contact with the medical and mental health systems.141 Past records can confirm a person's account or point to discrepancies that require further exploration (which is particularly important, as described in Section I.C.4, infra, when malingering is suspected)
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The pattern of symptoms reported by the person is compared with known syndromes, and the consistency of his or her behaviors is observed. Contrary to common belief, mental disorders are not easy to fake, especially when the deception must be sustained over a period of time.148 When deception is suspected, efforts to confirm it should begin during the clinical examination, as the person is offered the opportunity to endorse symptoms that are unlikely to occur naturally (e.g., "Do you ever feel as though the cars on the street are talking about you?
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Thus, the only honest response that a clinician can give in almost every circumstance to a question about the possibility of malingering is that it is always possible, but is more or less likely in this particular case, given the characteristics of the person being evaluated.153 D Functional Impairment Due to Mental Disorders 1.
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Although focal deficits may occur, for example, the anxiety associated with exposure to a phobic stimulus such as a spider, more severe disorders will have a broader impact on a person's functional capacities as a whole.161 2. Assessment of functional impairment Determining the nature and extent of past, present, or future functional impairment, therefore, is usually the most critical aspect of a mental health evaluation and subsequent presentation of mental health evidence.
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. Beginning in the 1970s, however, there was growing recognition among the mental health professions that merely establishing a diagnosis is insufficient to permit a conclusion to be drawn about a legally relevant capacity, because a broad range of functional impairments can be associated with almost any mental disorder.163 Thus, in addition to a diagnostic assessment, an adequate examination will explore the person's perspective on the alleged functional impairment and will probe for symptoms associated with such impairment.
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Structured assessment techniques As with determination of diagnosis, the evaluation of the limitations of function due to mental disorders increasingly involves the use of structured assessment techniques.168 Most commonly, these are standardized interviews or data-gathering protocols (e.g., based on a person's psychiatric record) designed to ensure that all relevant information is obtained.
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Nonetheless, these can be useful approaches to evaluation in appropriate legal contexts. The advantages that attend the use of structured assessment instruments include the thoroughness of the evaluation, because the likelihood is reduced that variables that have been shown to be important to assessment will be omitted, and in many cases, a research base exists from which conclusions can be drawn regarding the degree of functional impairment of the person being assessed.175 Indeed, in some jurisdictions, the use of structured assessments is required for particular purposes (e.g., evaluation of sexual offenders)
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All of these are legitimate questions, of course, and an argument can be made that the introduction of data from assessment instruments into evidence should be held to a more rigorous standard, because factfinders may give such data greater credence than unassisted clinical judgment.180 But the undoubted consequence is that the arguably more reliable and perhaps more valid data from empirically derived assessment techniques are less likely to be introduced in evidence than evaluators' subjective judgments of unknown validity.181 E Predictive Assessments As noted above,182 predictive assessments are the most challenging evaluations performed by mental health professionals.183 The most common tasks involve the prediction of violence risk and of future functional impairment and responses to treatment.
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Although most studies suggest a moderately elevated risk, the proportion of violence accounted for by serious mental disorders is small, probably 3% to 5%, based on the best available U.S. estimates.187 Data also suggest that the stereotype of violent mental patients who assault strangers in public places is inaccurate: Most violence by persons with serious mental disorders is directed at family members and friends and usually occurs in the living quarters of the perpetrator or the victim.188 Much higher rates of violence are associated with substance use, especially alcohol use, and with traits such as psychopathy, often found in antisocial personality disorders.189 Indeed, most of the strongest predictors of violence are common to both persons with serious mental disorders and those without, suggesting that the impact of the disorders per se is slight.190 a.
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377 (2002) ; John Monahan et al., An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorders, 56 Psychiatric Servs.
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Studies of predictions by psychiatrists and psychologists in the 1960s and 1970s showed poor accuracy in judging whether persons with mental disorders and sex offenders would be likely to be violent at some point after release.204 Indeed, the most frequently cited conclusion was Monahan's statement that when mental health professionals predicted that a person would be violent, they were twice as likely to be wrong as right.205 The cumulative impact of these findings stimulated a great deal of research to identify variables that predict violence and their incorporation into both clinical predictions and the structured assessment instruments described above.206 200. N Zoe Hilton et al., Sixty-Six Years of Research on the Clinical Versus Actuarial Prediction of Violence, 34 Counseling Psychol.
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The state of the art probably allows well-trained clinicians, especially if they are using structured assessment instruments, to assign persons into high-, medium-, and low-risk groups with reasonable accuracy. At present, the hope of designating risk categories with greater precision than that for most categories of persons with mental disorders is likely illusory.213 When quantitative data are available, however, precision in communication of risk 207. Paul S
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See discussion supra Section I.D.2. However, these cases call for something more: predictions of the degree of change in functional impairment due to mental disorders that are likely to occur over time.
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In criminal proceedings, for example, the continued confinement of a defendant in a psychiatric hospital on the basis of incompetence to stand trial will be based in part on the probability that treatment of the person will restore capacity;219 involuntary treatment of the defendant will turn on a number of factors, including the likelihood of success and the side effects and their potential for impairing the defendant's defense.220 Decisions about probation and parole of mentally disordered offenders may also relate to the likelihood that symptoms will remain in check, and courts may order ongoing treatment as a condition of release.221 Among the civil cases for which treatment-related questions will be at issue are liability claims for malpractice and failure to protect third parties from patient violence, claims involving emotional harms (e.g., in calculating the cost of future care) , and issues related to the deprivation of rights of prisoners in correctional facilities to have adequate mental health treatment.222 Treatment of mental disorders today offers multiple options for most disorders, often with different levels of likely effectiveness and varying side-effect profiles.
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Currently, medications are a mainstay in the treatment of schizophrenia and bipolar disorder; indeed, it is a rare patient who can be treated successfully for these disorders without medication as part of the treatment plan.223 Medications are also used commonly to treat and prevent the recurrence of depression, anxiety disorders, attention-deficit/hyperactivity disorder, and a large number of other conditions.224 The field of psychopharmacology, as the treatment of mental disorders with medications is known, has become a complex and challenging part of psychiatric practice.
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.233 FDA approval is required for a new medication to be marketed in the United States, and approval is granted only after evidence from clinical trials is presented to the agency demonstrating the efficacy of the drug for a particular purpose, within a given dosage range, and often with a particular population.234 Once FDA has granted approval for a compound to be marketed, however, physicians are free to prescribe it for any purpose for which they believe it to be indicated, at a dosage of their choosing, and for whichever patients they believe will benefit -- although pharmaceutical companies can advertise its use only for FDA-approved purposes. Because approval of a single indication for drug use makes the medication generally available for other purposes as well, and over time drugs lose patent protection, pharmaceutical companies often have little incentive to pursue FDA approval for additional indications.235 Thus, many medications have long been used for purposes other than the one endorsed by FDA, often with impressive bodies of clinical experience supporting such use.236 As is true for many classes of medications, the precise mechanisms of action of most psychopharmacological compounds have not yet been established.
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• Antipsychotic medications, first introduced in the 1950s, appear to have selective effects on psychotic symptoms such as delusions, hallucinations, and disordered thoughts.239 The first generation of antipsychotics, marked by the introduction of chlorpromazine, often caused acute neuromuscular side effects, such as spasms of the muscles, along with a long-term risk of tardive dyskinesia, a condition characterized by involuntary movements of the muscles in the face, trunk, and extremities.240 A second generation of these medications, introduced in the 1990s with great fanfare, presents lower risks of neuromuscular problems, but several of the most popular members of this group can cause weight gain, along with diabetes, hyper lipidemia, and increased cardiac risk.241 There does not appear to be a difference in efficacy between the earlier and later medications.242 • Mood stabilizers were introduced for the treatment of bipolar disorder, which is characterized by episodic mood swings from mania to depres sion.243 The first of these drugs was lithium, whose effect was discovered in the 1940s, but which was not widely adopted in the United States until the 1970s. Lithium can be very effective, but it often causes problematic side effects.244 Subsequently, a number of medications that are also effec tive as treatment for seizure disorders were found to have mood stabilizing effects as well, and they are generally better tolerated.245 238. Id.
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Today, the much safer SSRIs and related compounds are the drugs of choice for long-term treatment of anxiety, as they are for depression, with benzodiazepines often reserved for situations in which immediate effects are a priority.252 Newer agents have been introduced from entirely different chemical classes specifically for anxiety.253 This is by no means a complete list of medications for the treatment of mental disorders, but represents a brief introduction to the major classes that are likely to be the focus of evidence presented in legal proceedings.
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; Dora W Klein, Curiouser and Curiouser: Involuntary Medications and Incompetent Criminal Defendants After Sell v.
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2. Psychological treatments Although medications are a mainstay for treatment of serious mental disorders, a variety of psychological treatments may be important as either primary or adjunctive treatments.
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Psychodynamic therapies are easier to study and have a somewhat more robust set of data speaking to their efficacy -- for example, in anxiety and depression.268 It is often difficult, though, for patients with more severe disorders, such as schizophrenia and bipolar disorder, to tolerate the in-depth exploration and uncovering of intrapsychic conflicts that accompany the therapeutic process. But many patients with personality disorders, depression, and other conditions will attribute their stability to ongoing therapy.
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Many have shown efficacy with particular disorders, and efforts have been made to identify common therapeutic elements, which may include the relationship with the therapist and the ability to instill hope for the future in the patient.273 In addition to individual therapies, persons with mental disorders may benefit from group therapies of a variety of orientations, including psychodynamic and cognitive.274 Group therapies can be especially helpful when socialization and relationships with other people are among the person's problems. Family and couples therapies generally target relationships within the family unit or marital dyad; because mental disorders are often disruptive to relationships, such approaches may be helpful adjuncts to treatments focused on the affected person's primary disorder.275 Severely ill patients, including those with schizophrenia, may benefit from what is termed supportive therapy, which involves regular contacts aimed at identifying concrete problems in the person's life and helping to find solutions.
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became the most popular of these approaches in the era before efficacious medications existed for mental disorders. The early techniques for ECT involved application of an electrical current to the brain of patients while they were awake.
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Given that brain function is integrally linked to electrical transmission of impulses between nerve cells, it is not surprising that other efforts have been made to use electrical stimulation for therapeutic purposes. Electrical stimulation of the vagus nerve has been approved by FDA for the treatment of depression, although the supporting data are generally thought to be weak.290 The therapeutic use of transcranial magnetic stimulation, in which a strong magnetic field is applied externally, is being explored, including for depression, autism, and other disorders.291 Successful use of implanted devices for deep brain stimulation (DBS)
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6. Prediction of responses to treatment In a number of legal contexts, experts are called on to anticipate the responses of persons with mental disorders to treatment.
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298. Rates of nonadherence to medications among patients with psychiatric disorders are in the range of 50% or more. Although these figures are perhaps somewhat higher than those seen in other chronic conditions, long-term treatment with medication in general is marked by high rates of noncompliance with prescribed medications.
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Both retrospective assessments of past mental states and prospective estimates of future behavior depend on estimates of variables that are inherently difficult to know with a high degree of certainty. Even contemporaneous assessments of functional abilities depend, in part, on the evaluee's self-report of such difficult-to-measure attributes as distress, motivation, and judgment.
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Note that Slobogin's argument is not limited to testimony rooted in psychodynamic concepts, but extends to other mental health evidence that intends to speak to aspects of a person's mental state at some point in the past, knowledge of which is unlikely ever to meet scientific standards of proof. Under the Daubert standard, the judge serves as the gatekeeper for scientific testimony.
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This appears, in fact, to be the way in which courts generally approach such evidence.312 2. Ultimate issue testimony Whether mental health experts should testify -- or be permitted to testify -- to the ultimate legal issue in a case has been the subject of longstanding controversy.313 The question arises, for example, in criminal cases where experts often have commented directly on whether a defendant is competent to stand trial or whether the legal standard for insanity has been met.314 Similar issues can arise in civil settings, in which experts may be asked to testify directly about a person's capacity to manage affairs or to serve as a custodial parent, or regarding whether a person was competent to sign a contract at an earlier point in time.315 Some mental health experts find themselves encouraged or pressured by attorneys to draw conclusions about the ultimate issue, and judges have been known to exclude testimony in which experts are unwilling to take that step on the grounds that the evidence that they would otherwise provide lacks probative value.316 Concerns arise over the fact that conclusions about the ultimate issue in a case are matters to be decided by the factfinder, on whose legitimate territory an expert who speaks to the issue may be encroaching and whose deliberations may be preempted.317 310. For a response to Slobogin's argument, see Edward J
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Hinckley, Jr. not guilty by reason of insanity of the attempted assassination of President R eagan, the verdict led to wholesale revision of laws governing the insanity defense at the federal and state levels.321 Among the changes wrought by the Federal I nsanity Defense Reform Act of 1984 was a prohibition on experts directly addressing the question of insanity.322 The Federal Rules of Evidence were amended to effect this change: "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime or of a defense thereto."323 Although it seems clear that, according to the terms of the rule, the expert is precluded from opining directly that a defendant lacked criminal responsibility, it is less clear whether the expert could say that the defendant could not "appreciate the wrongfulness of his acts," the language used in the statute to define the relevant standard.324 And if that, too, were prohibited, could the expert say that the defendant "could not grasp how wrong his behavior was," and if so, would that language be likely to have any different impact on a jury than simply speaking in the words of the statute?
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Such preclusion may also reduce the much bemoaned "battle of the experts," because a good deal of disagreement may derive from views of how data from the evaluation should be applied to the ultimate legal question, rather than from differences regarding the person's mental state. Although testimony on the ultimate legal issue is now barred in federal courts in insanity defense cases (18 U.S.C.
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Psychologists' training, in contrast, may provide deeper knowledge of the theoretical and experimental bases for understanding the function of the mind, both normal and abnormal.330 As a general matter, doctorallevel clinical psychologists will be prepared by their training to provide evidence regarding diagnosis and sychotherapeutic treatment of mental disorders, the p results of psychological and neuropsychological testing, and the roots of normal and abnormal behavior. However, although the core elements of training in psychiatry and psychology may be similar across training programs, the variability is substantial.331 Moreover, variation in subspecialty (in psychiatry)
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in a number of substantive areas of clinical psychiatry and psychology. For example, most professionals who acquire special knowledge about particular mental disorders will do so by pursuing their interest through reading and following the literature and by means of clinical contact with patients with the disorders, as opposed to formal training.
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Indeed, studies of diagnostic performance by mental health professionals divided into groups by the duration of their clinical experience have shown no consistent correlation between years of experience and reliability.335 An explanation for the failure to find a consistent effect of expertise may be that, despite less clinical experience, recently trained clinicians are more familiar with the contemporary diagnostic framework and are less tempted to use their clinical experience as a substitute for generally accepted criteria (e.g., "I know schizophrenia when I see it, regardless of what the criteria say")
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3. Licensure and board certification a.
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Board certification is less common among psychologists than among psychiatrists, in part perhaps because the process is more recent.345 Given this, it is less likely that certification will be applied as a minimum standard for expert testimony in psychology than in psychiatry or other areas of medicine. 343. For examples of the scope of judicial discretion on this issue, see, e.g., Hall v.
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The logic seems strong: A professional who has known the person for some period of time, perhaps a substantial one, should be better able to offer conclusions about the person's diagnosis, treatment requirements, and the impact of the person's mental state on the person's function and behavior. Thus, it may seem surprising that the ethics guidelines produced by both the American Academy of Psychiatry and the Law, the leading organization of forensic psychiatrists, and the American Psychological Association's division of forensic psychologists point to problems inherent in such situations.346 Although neither set of guidelines construes testimony involving current or former patients as unethical, they both have words of caution to offer and discourage clinicians from playing both clinical and expert roles.347 The professional literature on this issue, and the ethics guidelines themselves, cite several reasons why having a treating professional perform the evaluation for 346. American Academy of Psychiatry and the Law: Ethics Guidelines for the Practice of Forensic Psychiatry, May 2005, https://www.aapl.org/ethics.htm; Committee on Ethical Guidelines for Forensic Psychologists (Division 41 of the American Psychological Association and the American Academy of Forensic Psychology)
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349. Although all states have psychotherapist–patient and/or physician–patient testimonial privilege statutes that limit testimony by treating psychiatrists and psychologists (and often other mental health professionals) without the patient's consent, the exceptions in many of these statutes -- including the so-called patient-litigant exception that is invoked when patients place their mental state at issue 876
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Given the range of cases in which mental health experts provide testimony and the various questions to which they are asked to respond, situations arise in which the experts are providing evidence without having examined the person about whom they are testifying.350 Such circumstances may arise when direct evaluation is impossible, for example, in contests over testamentary capacity, where often only after the testator is deceased will a claim regarding the person's capacity be litigated. Other civil litigation in which there may be issues regarding the state of mind of a deceased person include contractual capacity, wrongful death, and medical malpractice claims.351 Testimony regarding a person who cannot be evaluated directly is less likely to occur in criminal cases, but a highly contentious example occurs in death penalty cases in Texas; defendants have the right to decline evaluation by prosecution experts,352 but such experts frequently testify on the basis of a hypothetical question that reflects some of the facts regarding the defendants' history and behavior.353 in a case -- are sufficiently numerous that this situation cannot be ruled out.
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When it is not possible or feasible to do so, they make clear the impact of such limitations on the reliability and validity of their professional products, evidence, or testimony. Committee on Ethical Guidelines for Forensic Psychologists (Division 41 of the American Psychological Association and the American Academy of Forensic Psychology)
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358. For one highly publicized case of a psychiatric expert witness who was expelled from the American Psychiatric Association on these grounds, see Ron Rosenbaum, supra note 216; Estelle v. Smith, 451 U.S.
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Mental health evaluations often involve discussions of sensitive material, including histories of abuse, use of illegal substances, sexual practices, intimate fears and fantasies, and potentially embarrassing symptoms. Although some persons may be reluctant to speak freely about these issues with an evaluator whom they barely know -- and who may reveal this information in the courtroom -- the reassurance that they are talking with a mental health professional often substantially mitigates those concerns.360 However, when the evaluation takes place in a setting that is less than private, the likelihood of such disclosures is reduced.361 This is often a problem in correctional institutions, where interviews may take place where guards or other inmates can overhear them.
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Because distinctions between mental disorders can depend in part on the pattern of symptoms over time, accurate diagnosis often is dependent on having a view of the person's prior psychiatric history.366 In addition, when malingering is a consideration, as it will frequently be, the consistency of the person's presentation over time can be an important datum in the assessment.367 And given that past behavior is generally the 363. AAPL Task Force, Videotaping of Forensic Psychiatric Evaluations, 27 J
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In addition to reviewing records, interviewing informants with relevant data can provide important perspectives on the person being evaluated.370 Family members and friends, including coworkers, often can report on patterns of behavior indicative of symptoms of mental disorder or of functional impairment. They may know about prior treatment for mental disorders, including hospitalization, or histories of involvement with the criminal justice system.
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Dualistic views of human behavior, in which mind and body are seen as distinctly separate entities, have been rejected by scientists who study thought and behavior, and clinicians who treat mental disorders.371 The relevant fields, including cognitive science, neuroscience, psychology, psychiatry, and philosophy, now acknowledge the brain as the seat of mentation and behavior, and recognize that all mental phenomena, including abnormal mental states, result from perturbations in the function of the brain. At some level, there must be a physical concomitant of every mental phenomenon, and sometimes the physical influences on abnormal behavior are gross enough to be detected by existing techniques, which may reveal potentially treatable conditions.
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As previously discussed, mental health evidence will often focus on the extent to which a person is capable of performing a particular task or set of tasks, that is, testimony will relate to a person's impairment on one or more functional abilities.374 Sometimes an evaluator will be able to infer from an examination of the person's mental state and information from other sources whether the person is or was capable of performing the task at hand (e.g., standing trial, returning to work, managing property)
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Notwithstanding the advantages of structured assessment techniques, they raise a set of concerns that must be addressed to determine their relevance to the question at issue and the weight that should be given to their results.
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382. The frequently differing presentations of mental disorders in children have led to the development of instruments intended specifically for use in that population. See, e.g., David Shaffer et al., NIMH Diagnostic Interview Schedule for Children, Version IV (NIMH DISC-IV)
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An example involving validity is the use of predictive scales, such as instruments to assess risk of future violence, with a different group than the one from which the predictive algorithm was derived.383 Concretely, if a predictive test is based on a criminal, but nonmentally disordered sample, applying it to persons with mental disorders -- for whom very different variables may affect their behavior -- is dubious in the absence of data demonstrating that it is valid in the latter group and vice versa. It should be emphasized, however, that reestablishing reliability and validity is only necessary when the original group and the new population are likely to differ in some relevant way.
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For some instruments and tests, the scoring is simple and self-evident, for example, the number of positive responses is totaled to yield the score for the test, or evaluees themselves are asked to indicate the severity of their symptoms on a 385. The Diagnostic Interview Schedule, which is widely used in epidemiological studies of mental disorders in the United States, is an example. See a description of the latest version of the instrument at http://epi.wustl.edu/CDISIV/dishome.aspx.
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From page 889... ...
Mental health professionals without experience in performing particular forensic evaluations may fail to recognize that the legal question being asked deals with a person's functional capacity, not with some aspect of their clinical state per se.390 As a result, they may mistakenly base their opinions on the presence of a particular diagnosis or symptom cluster rather than on the person's capacity to perform in the legally relevant manner. Studies over many years indicate that this has occurred frequently in testimony regarding defendants' competence to stand trial, in which experts often conflated the presence of psychosis with incompetence, and concluded that any psychotic defendant was ipso facto incapable of proceed 388. E.g., the Brief Psychiatric Rating Scale.
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From page 890... ...
Errors may be introduced by inadequacies in the data available or the uncertainties inherent in particular determinations, especially predictions of future mental states and behaviors. As noted above, it is often impossible to specify the contingencies that may arise in a person's life that could influence their mental states and actions.
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From page 891... ...
A From the development of Freud's theories in the late nineteenth and early twentieth centuries until the present, many mental health professionals have based their clinical approaches on psychoanalytically inspired concepts. Some of these concepts have been confirmed scientifically (e.g., the existence of unconscious mental states)
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From page 892... ...
The suit alleged that VA mental health staff should have known that John was dangerous as a result of his mental disorder and not fit for discharge. Damages were claimed as a result of physical injuries and the development of PTSD.
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From page 893... ...
3. What information would be needed to determine whether the failure to use a structured violence risk-assessment tool should be considered evi dence of negligence?
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From page 894... ...
Dr. B diagnosed the victim as suffering from PTSD and had used a structured assessment tool to help make the diagnosis.
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From page 895... ...
. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders DSM-IV-TR (4th ed.
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From page 896... ...
Wettstein, Treatment of Offenders with Mental Disorders (1998)
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Key Terms
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