PSYC 2080 exam 2

deposition

potential witnesses are questioned by the attorneys for opposing side; under oath in the presence of court recorder; typically away from courtroom; info-gathering

Jenkins vs. United States

ruled that the lack of a medical degree did not automatically disqualify psychologists from providing expert testimony on the issue of mental disorder; before then it was just psychiatrists allowed to give expert testimony because they have MD degree

2 general types of courts

1. federal court

2. state court

federal court

interpret the US constitution/acts of congress; settle disputes between states or citizens of different states; specialized matters such as bankruptcies, copyrights, or patents.

state courts

interpret/apply state constitutions/laws passed by states and settle disputes between citizens of the same state or between the state government and citizens of that same state

3 types of jurisdiction

1. general

2. limited

3. appellate

general jurisdiction

have broad authority over an array of both simple and complex cases; both civil and criminal.

limited jurisdiction

they can only settle small disputes or deal with preliminary issues in a major case

appellate jurisdiction

a. court's authority to appeal regarding decision of lower courts.

2 types of appointments

time-limited

lifetime (ex: supreme court)

what branch of government is the federal courts?

usually judicial but some are executive (ex: DACA)

DACA

Policy that would provide deportation relief to those brought to this country as children; Deferred Action for Childhood Arrivals

granting certiorari

4 of the 9 supreme court justices must agree to hear the case.

the supreme court will heart the case

types of state courts

- municipal courts/city courts/night courts: lowest level

- county/parish court

- court of appeals (every state has a court of last resort)

- specialized courts

(not military courts: that is a federal court!!)

municipal courts/city courts/night courts: lowest level

lowest level courts

These courts typically cannot conduct major civil trials or felony trials.

limited jurisdiction

county/parish court

a. - general jurisdiction handling wide range of civil and criminal cases.

appellate courts (court of last resort)

every state has a court of last resort (aka the highest appellate court in that state); some states have two of them: one for civil and the other for criminal; not all states have intermediate appellate courts.

military courts

one of the specialized courts in the federal system; matters related to crimes: theft, sexual assault, etc. AND offenses unique to the military: unauthorized absence without leave, desertion, failure to follow orders, conduct unbecoming, etc.

civil vs criminal case

civil case - resolution of dispute between private individuals/organizations; the government may also be involved; for money or to force someone to do/stop doing something; at the end, no one goes to jail.

criminal case - alleged violation of the law; government represented by prosecutor; brings action against the defendant.

Mental Health Courts

a diversion program for mentally ill defendants in which a judge, prosecutor, and probation officer play proactive roles and monitor the progress of clients through weekly visits to a courtroom

stages of the trial (5)

1. pretrial stage

2. arraignment

3. discovery process

4. trial

5. disposition

6. appeals

PRETRIAL STAGE

police contact the judge/magistrate to obtain a warrant to search/arrest a suspect. a warrant is not always required!!!

no-knock warrant

Allows police to enter a person's house without announcing their presence; recent cases: police have killed/injured people when going into the wrong home for a no-knock warrant; has led to many jurisdictions banning them.

a warrant is required to...

i. Search a person's cell phone

ii. Place a GPS tracking device on a vehicle.

iii. Obtain cell phone records from a third party, such as a service provider

warrantless arrests and searches

Most arrests and many searches do not require warrants. For example, an officer does not need a warrant to arrest someone who is observed committing a crime, and courts have allowed a variety of "warrantless" searches of persons, homes, and possessions (e.g., during a lawful arrest, in exigent circumstances, or to prevent the destruction of evidence).

a court's first contact with the case is with the

initial appearance or the arraignment

indictment

the act of accusing; a formal accusation

grand jury

body of citizens that reviews evidence provided by a prosecutor and decides if there is sufficient evidence to indict; joke within attorneys: you can indict a ham sandwich.

initial appearance

a. typically within 24 hours—if they are held in jail rather than released or cited to appear in court at a later date; a judge looks over the evidence and ensures there is legal grounds to hold a person, such as probable cause to believe they committed the crime they have been charged with.

arraignment

open proceeding at which formal charges are read.

The arraignment can occur very soon after the arrest or even months later.

At the arraignment, the presiding judge asks defendants if they understand the charges, informs them of their right to counsel, and asks them to enter pleas, although pleas are not required at that point.

If defendants plead not guilty, the judge must decide whether to release them before further proceedings, typically by setting a bail amount to ensure that they will return to court when required.

bond vs bail

i. Bail - you pay it and receive it back when you show up for court again.

ii. Bond - you pay it and do NOT receive it back when you show up for court again.

preventative detention

A law that allows judges to order an accused person to stay in jail without bail when there is good reason to believe that the person will commit another serious crime before trial

judge considers the dangerousness of the defendant; can deny bail if they are a flight risk or considered highly dangerous. Forensic psychologists may be asked to do a risk assessment.

ways the defendant can plead:

1. guilty

2. not guilty

3. nolo condendere

4. not guilty by reason of insanity (NGRI)

5. guilty but mentally ill (GBMI)

pleading guilty

90% to 95% of criminal defendants plead guilty at arraignment or change their not-guilty plea to guilty before a trial.

nolo contendere

they will not contest the charges but are also not pleading guilty; in the criminal law system, this has the same effect as a guilty plea: a conviction is entered on record; also known as an Alfred plea.

not guilty by reason of insanity (NGRI) plea

not-guilty plea by notice that the insanity defense will be used as a defense at their trial; this hardly ever works; remember, insanity is a LEGAL term, not a psychological term; "insane" means not responsible for their actions.

Criminal responsibility (CR) or mental state at the time of the offense (MSO) evaluation

forensic psychologist examines the defendant and determines if insanity defense can be supported

discovery process

each side makes info at its disposal available to the other side in preparation for their case

- defendant side does not have to reveal info that could inculpate (make them look more guilty)

- prosecution DOES have to reveal info that could exculpate (clear) the defendant

- if insanity defense is used, need to release the formal report

types of trials

1. bench trial

2. jury trial

bench trial

no jury: decided by the judge/magistrate

jury trial

select jurors from jury pool; psychologists may consult.

voir dire

potential jurors questioned by lawyers; maybe by judge

When jury consultants are involved, they have often gathered information about potential jurors from public records or even from interviews with their acquaintances. The lawyer can then use this information in forming questions to ask of a potential juror, but the judge will not necessarily allow them. The consultant also may sit at the defense or prosecution table and make inferences based on a potential juror's nonverbal behavior or reaction to questions.

2 ways an attorney can challenge to remove a juror

1. peremptory challenge

2. challenge for cause

peremptory challenge

"just do it because i said so!"; allows lawyer to reject a potential juror without stating the reason; cannot be discriminatory; there is a limit to how many of these a lawyer can use.

Cannot be exercised on the basis of race or gender. If the presiding judge suspects that this is being done, the judge must inquire into the lawyer's reasons to ensure that the peremptory challenge is not being used in a discriminatory fashion.

challenge for cause

specific legal reason for removal or a juror is offered; ex: the juror knows the defendant personally or if it is a death penalty case and the person could not bring themselves to vote for the death penalty under any circumstances; no limit to how many of these can be used because they address legal issues.

disposition stage, aka sentencing stage

the judge reads the verdict and the sentencing

when a judge or jury renders a verdict of not guilty, the case is over and the defendant is free to go, unless the defendant has been found not guilty by reason of insanity.

- free to go

- institutionalized (NGRI)

- jail

- death penalty

presentencing evaluation report

social history: info about the offender's family, employment, education, substance abuse, criminal history, medical needs, mental health history, etc. among other factors.

PSI reports often include a victim impact statement, which is a summary of what the victim suffered—both physically and emotionally—as a result of the crime. Victims themselves as well as people close to them also have the right to speak out at sentencing. Psychologists may add to these reports.

appellate stage

defendants/respondents have the opportunity to appeal convictions, sentences, judgements; the odds are HEAVILY stacked against you in this stage.

double jeopardy

Prosecutors cannot appeal a not-guilty verdict (this would violate the Constitution's prohibition against double jeopardy), but prosecutors can sometimes appeal a sentence that is considered too lenient, though this is very rarely done. (cannot keep prosecuting again and again until you get the verdict you want.)

death penalty appeals

· Death sentences MUST be appealed at least once.

· Many of these appeals will center around manner of execution, especially lethal injection.

· Some drugs used in lethal injection have been criticized as cruel and unusual punishment.

2 types of damages the defendant may have to pay if they lose a civil trial:

1. compensatory damages

2. punitive damages

compensatory damages

i. based on actual harm plaintiff suffered; ex: medical bills, loss of wages, etc.

compensate for what was lost; break even

punitive damages

i. extra punishment on the persons responsible above and beyond the compensatory damages.

amicus curiae beliefs

documents filed by interested parties who did not participate directly in the trial, but have a stake in the outcome or have research info to offer the appellate courts.

The American Psychological Association (APA), has over the years filed closed to 200 briefs in state and federal appellate courts on topics such as involuntary civil commitment, marriage equality, sexual orientation, gender identity, affirmative action, eyewitness testimony, false confessions, professional licensing, child testimony in sexual assault cases, the forced medication of inmates, and the effects of employment discrimination.

LGBT rights (Supreme court decision: Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. and G.R. Funeral Homes v. EEOC)

gay and transgender individuals are protected from employment discrimination

The APA, along with several other professional mental health and human rights groups, joined in an amicus brief, which cited other court decisions that prohibited discrimination in the workplace on the basis of sex (e.g., Price-Waterhouse v. Hopkins, 1989). The brief also cited numerous scholarly sources on sex, sexual orientation, gender identity, and both sexual and gender stereotyping. The brief emphasized that sexual and gender minorities face significant harmful stigma in the workplace.

scientific jury selection

A. application of social science techniques in effort to find a jury that will be favorably disposed toward one's case.

1. This process may include attitude surveys within the community in an attempt to determine representative views on matters dealing with the upcoming case. Trial consultants often conduct surveys, set up focus groups, interview community members, and employ other research strategies to try to help predict who will likely be a good juror for their client.

change of venue

change of the location of the trial

Lawyers may be concerned that publicity could affect their case. Trial consultants may be asked to conduct surveys of the community and collect evidence of negative publicity, which would support a motion for a change of venue (change in the location of the trial).

shadow juries

groups of people similar to jurors in demographic characteristics and possible outcomes; consulted on a regular basis to see how they would react to various aspects of the proceedings.

1. Once the trial is over, consultants may interview members of the jury, to understand their decision making, and how effective the lawyer's strategy was.

witness preparation

1. Trial consultants also help attorneys prepare witnesses and determine effective strategies for presenting evidence and persuading jurors. Lawyers need to review testimony of their witnesses, but they may also use a trial consultant to coach a witness in how to be persuasive and confident.

2. Remember from Ch. 3 - rehearsal makes people feel more confident, but can reduce accuracy. This is especially true if the questions during preparation are leading or suggestive.

the voir dire

1. consultant may suggest Voir Dire questions to the lawyers; make inferences about prospective jury members based on responses and nonverbal behavior.

2. trying to determine if potential jurors may be biased against the defendant's racial, ethnic, religious, gender group.

expert testimony

I. The role of an expert witness is to help the judge or the jury in making decisions about matters that are beyond the knowledge of the typical layperson.

Clinical psychologists are also frequently called to testify about the results of evaluations they have conducted.

a. many times, simply submit reports to judge/attorney.

b. if there is a dispute over findings, may be asked to testify in court.

c. May be opposing testimony provided by a psychologist from the other side.

factors that determine how the jury responds to expert testimony:

a. The testimony is clinical, rather than research-based. (interactions with people)

b. The expert receives no payment for their testimony. (no bribes allowed)

c. The expert is from the local community. (relatable and outcome affects them too)

d. Experts seem knowledgeable, but not arrogant. (need to be neutral and likeable)

e. Experts resist giving opinions on legal matters unless pressed. (objective!!)

credentials

degree/licensing/certification; research or practical experience in the matter that the expert is testifying to.

must be established for expert testimony

The judge then decides whether or not to accept them as an expert. Some states have specific requirements for psychologists to be involved in court cases, assessment or testimony.

2 standards for admitting evidence to be used in court:

1. Daubert standard (currently used)

2. Frye standard (not used anymore)

Daubert standard

if the opposing lawyer challenges introduction of evidence, the judge must decide whether the evidence is reliable, legally sufficient, and relevant to the case at hand.

**this is the standard currently used

makes judges more likely to exclude evidence, but not better at determining "junk science" from valid evidence

Frye standard

aka the general acceptance rule; states that the expert's evidence must have been gathered using scientific techniques that had reached a general acceptance in the science field. Once that standard had been met, all relevant testimony would be admissible. Replaced later by the Daubert standard.

the evidence in question must be "generally accepted" by the scientific community

true or false: the Daubert standard was effective at making sure the evidence presented in court is valid.

FALSE:

- makes judges more likely to exclude evidence, but not better at determining "junk science" from valid evidence

- "The past 15 years of social scientific research and legal commentary have revealed critical limitations in the ability of legal professionals and laypeople to identify flawed psychological science in court".

- most judges and jurors are similar in their ability to identify flawed expert evidence because neither has received formal training in the scientific method

a. Most judges/jurors are similar in their ability to identify flawed expert evidence because neither has received formal training in the scientific method.

b. Jurors may not distinguish flawed research even when the opposing expert highlights the flaws.

c. Most judges/jurors do not understand the importance of a control group, sample size, etc.

confidentiality in the courtroom (or lack thereof)

Confidentiality between therapists and their clients is a cornerstone of that process. However, when psychologists have been asked by the court to evaluate a defendant, the results of that evaluation are shared among the judge and the lawyers.

a. The client is the COURT, not the individual being examined.

b. May be discussed in the open courtroom

c. People being evaluated should be warned of the limits of confidentiality

clinicians are expected to inform the individual of the nature and purpose of an evaluation, as well as who will be receiving a report. They also should ensure that the individuals are informed of their legal rights. The psychologist may conduct the evaluation even without their consent.

ultimate issue

the final question that must be decided by the court; ex: guilt vs. innocence. Ex: Is someone competent to stand trial? Are they actually legally insane? Should a child go to their mother or father?

true or false: expert testimony can speak on the ultimate issue

false!!!

what makes a witness testimony different from an expert testimony?

In most jurisdictions, lay witnesses can testify only to events that they have actually seen or heard firsthand. Their opinions and inferences are generally not admissible.

Expert witnesses testify to facts they have observed, tests they have conducted, and research evidence in their field. Opinions and inferences are often the main reason they are called to the stand; based on their experience.

opponents of expert testimony

a. They believe that it is highly subject to ERROR. The expert may misunderstand the law; may not value judgements; may believe a particular outcome is best, even if legal criteria are not met.

b. Possible BIAS on the part of the expert. An expert hired by one side may find their testimony biased to that side; are you being paid for your testimony?

c. The UNDUE INFLUENCE of the expert. Expert's opinion may greatly influence the judge/jury: their decision must be made on legal fact; research has shown this issue/influence in pretrial motions.

supporters of expert testimony

Judges often depend on this testimony, and such testimony can be carefully controlled, particularly by means of effective cross-examination. Judges and lawyers are becoming increasingly sophisticated about possible sources of error in an expert's opinion.

In pretrial proceedings in both criminal and civil cases, judges typically ask an opinion of the clinician who has been appointed by the court and who is acceptable to both parties. These court officers have come to value and trust the professional's opinion as a result of having that person involved in past cases.

Forensic psychology has developed rapidly, and many graduate and postgraduate programs now offer internships, specialized training, and other opportunities for psychologists and other clinicians to learn the laws. Quality of evaluations has improved significantly over the past decade.

true or false: many forensic psychologists never testify in court proceedings.

true

Furthermore, even those who consult often with lawyers, say a small percentage of the cases they help with (5%-10%) involve courtroom testimony.

cross examination

The questioning of an opposing witness during a trial.

- often more personal than content based, such as by asking experts if they are being paid to appear.

- it is not unusual for cross-examining attorneys to berate or insult experts, their field of study, or methods used in their research.

pretrial preparation of expert witness

is essential, and psychologists should not allow themselves to be persuaded to enter the courtroom without advance notice and sufficient preparation time

- advised to gather information carefully, pay attention to details of the case and the legal issues involved, remain impartial, and keep clear, organized notes

risk assessment/violence risk assessment

- predicts likelihood that a particular individual will be dangerous to self or others

- It is one of the most common tasks performed by forensic psychologists, and it is also extensively researched.

- probability statement based on "predictor variables" that have been shown in people who have re-offended to see if this person is likely to re-offend

****People are rated on number of these variables they have in their present lives/backgrounds, with some factors being weighted more heavily than others. An individual with a score below the cut-off for a particular risk assessment instrument would be judged as high risk of offending again.

****The more general the measures, the more accurate they tend to be; compared to less accurate specific measures.

can violence be predicted?

For the most part, courts have allowed clinicians to make predictions but have also acknowledged their fallibility.

behavior cannot be predicted 100% because there is capacity for change

fallibility of risk assessment

Today, forensic psychologists are careful to point out the fallibility of behavioral prediction. Although they acknowledge that prediction is an important aspect of the services they provide to courts and other institutions, they are carefully guarded in their conclusions. When it comes to predicting violence, virtually everyone now prefers the terms risk assessment or the assessment of dangerousness potential rather than prediction of dangerousness.

More sophisticated models of risk assessment view dangerousness as highly dependent on situations and circumstances, constantly subject to change, and varying along a continuum of probability. Someone who was considered potentially dangerous at one point in his life may have experienced life changes that make it unlikely he will continue to be a danger to self or others.

clinical assessments vs actuarial assessments (what are they and which one is better?)

Clinical assessments— rely on clinical experience and professional judgement; not as accurate when compared with actuarial; uses opinions based on meeting/interacting with defendant.

actuarial instruments - statistical models that rely on measurable, valid risk factors have been, in a majority of cases, superior to clinical judgment or professional opinion. Early research almost invariably supported the use of actuarial prediction over clinical.

actuarial instruments...

a. focus on a small number of factors and may ignore important factors that are idiosyncratic to the case at hand (e.g., recent legal or medical problems);

b. are PASSIVE predictors, focusing primarily on relatively static variables, such as demographics and criminal history;

c. may include risk factors that are UNACCEPTABLE ON LEGAL GROUNDS, such as race or sex, and may ignore risk factors that have UNKNOWN VALIDITY but are logical to consider (such as threats of violence);

d. have been developed to predict a specific outcome over a specific period in a specific population, and they may not generalize to other contexts

e. have a restricted definition of violence risk and cannot address the nature of the violence, its duration, its severity or frequency, or how soon it may occur.

structured professional/clinical judgement

1. may be a better alternative to actuarial data.

SPJ guidelines include

a. gathering critical information

b. identifying the presence of risk factors

c. evaluating their relevance

d. developing scenarios in which the person being evaluated might or might not be violent.

types of risk factors in a risk assessment

1. dynamic (stable vs acute)

2. static

static risk factor

historical factors that have been demonstrated to relate to the offending potential; ex: marital status, criminal beh in family, neurological issues such as traumatic brain injury, hx of violence

acute dynamic risk factor

changes rapidly (days, hours, minutes); sometimes dependent on mood swings, emotional arousal (anger), and alcohol/other drug-induced effects.

Hanson and Harris (2002) found that acute dynamic factors, such as anger and subjective distress, were better predictors of the tendency of sex offenders to reoffend than were the more stable dynamic factors, such as the sex offender's attitudes about women.

stable dynamic risk factor

they are changeable, but when they do change they usually change SLOWLY (over months-years) if at all. ex: drug use overall, deviant peers, attitudes

risk assessment development: target population

The instruments are typically designed by gathering information on a large group of individuals within a target population (e.g., violent offenders, paroled offenders, youths in detention, or patients in a mental institution).

forensic mental health assessments (FMHAs)

general term for...

competency evals, assessment of mental state at time of offense (aka responsibility/sanity evals), and presentencing evals

competency to stand trial

MOST COMMON FMA:

Competency to stand trial (CST), AKA fitness to stand trial or fitness to proceed

Competency to stand trial (CST), AKA fitness to stand trial or fitness to proceed

legal standard that requires criminal defendant be able to understand and appreciate the charges brought against them AND be able to assist their attorney in their own defense.

The typical cost of a competency evaluation for one defendant is $5,000.

mental health courts

certain defendants charged with misdemeanors or lesser felonies are well known to police, the judicial system, and the mental health system. They continually appear before the court, are sent for competency evaluation, are found incompetent to stand trial (or competent), are hospitalized (or not), have charges dropped (or plead guilty), spend time on probation (or in jail), and go forth into the community until their next criminal charge

intended to prevent the perpetuation of this revolving-door process by diverting primarily nonviolent individuals with mental disorders from the criminal process and providing community supervision and meaningful treatment.

who can raise the question of competency?

- defense attorney

- prosecution

- judge

lawyers do not always seek competency evaluations for their clients. why?

- Lawyer resistant to having client institutionalized

- Time/cost involved (whoever requests the competency eval is responsible for the cost)

- Belief that client is better served if case is disposed of quickly due to a plea bargain.

- Lawyer may not know that deficits such as intellectual disability may render a defendant not competent.

adjudicative competence

ability to participate in legal proceedings, including plea bargaining and participating in a criminal trial.

- road enough to subsume a wide range of abilities defendants are expected to possess.

Richard Bonnie

suggested that CST must involve both "competency to proceed" (i understand what is going on in the proceedings) and "decisional competency." (i understand the choices i am making)

competency to proceed

I understand what is happening around me (how to courts work, etc.)

decisional competency

I understand the outcomes of the decisions I am making through this process

what must be true of a decision to waive constitutional rights?

must be knowing, intelligent, and valid

dusky standard

defendant must be able to: 1. Understand/appreciate the criminal proceedings and 2. Assist attorneys in their own defense

why are people referred for competency evals?

past history of psychological problems or are currently showing signs of psych disorder (intellectual disability, dementia, old age, etc.)