Three areas of lawpsychology interaction

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Law, Psychology Public Policy
200.326 Dr.
Paul Hofer Week 3 Use of Psychology in
Appellate Advocacy and Policymaking
Historic Case Study Regulation of Access
to Abortion
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Dates for Presentations March
26 April 2 April 9 April 16 April
23 April 30
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How do scientific predictions work? (And how
could non-scientific prediction be so bad?)

• Claim that psychologists are wrong 2 out of 3
  times is itself wrong if predictions are done
  right
• The importance of base rates
• Over-prediction of violence because value false
  negative more highly than false positive
• Adjusting the selection ratio to fit the base
  rate will make predictions of any validity better
  than chance

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Clinical Prediction of Assaultive Behavior Among
Male Psychiatric Patients at a Maximum-Security
Forensic Facility (1999) Matthew J. Hoptman,
Ph.D., Kathy F. Yates, Ph.D., Marilou B.
Patalinjug, M.D., Renate C. Wack, Dipl.Psych.,
M.P.H. and Antonio Convit, M.D.
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The Data We Need to Evaluate
Accuracy of Predictions
Reality
No Violence Violence
25 117 75 66
Safe
Prediction
Dangerous
90 10 123 60
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Risk of unfair prejudice substantially outweighs
any probative value

• Issue of dangerousness important in deliberations
• Jurors more influenced by unstructured clinical
  judgments than by actuarial evidence
• Neither cross-examination, competing experts, nor
  deliberation undid mock jurors increase in
  dangerousness ratings

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Legal standards for admissibility of expert
witnesses (but science in legal briefs is
different)

• Historic Frye Test
• Constitution limitations are few
• Barefoot Due Process Clause does not bar even
  unprofessional expert testimony on future
  dangerousness
• Fed Rules of Evidence Rule 702
• Amended in 2000 to reflect S. Ct. holding in
• Daubert said more liberal FRE 702 over-ruled
  Frye
• Suggested criteria to help judge assess
  reliability of evidence
• Kumho said judges gatekeeper role applies to all
  experts

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Daubert criteria

• (1) whether the expert's technique or theory can
  be or has been tested--that is, whether the
  expert's theory can be challenged in some
  objective sense, or whether it is simply a
  subjective, conclusory approach that cannot
  reasonably be assessed for reliability
• (2) whether the technique or theory has been
  subject to peer review and publication
• (3) the known or potential rate of error of the
  technique or theory when applied
• (4) the existence and maintenance of standards
  and controls and
• (5) the degree to which the technique or theory
  has been generally accepted in the scientific
  community.

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Scientific Quality Control in Law

• Standards for admissibility of science before
  legislatures and appellate courts (e.g. Brandeis
  briefs) not so clear
• Accomplished through
• Professional ethics organizational
  self-regulation
• National Academy of Science Congressional
  Research Service General Accountability Office
  authoritative reviews
• Do we need science courts or social authority?

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Brandeis Brief From Wikipedia, the free
encyclopedia The Brandeis Brief was a pioneering
legal brief that was the first in United States
legal history to rely not on pure legal theory,
but also on analysis of factual data. It is
named after litigator Louis Brandeis, who
collected empirical data from hundreds of sources
in the 1908 case Muller v. Oregon. The Brandeis
Brief changed the direction of the Supreme Court
and of U.S. law. The Brandeis Brief became the
model for future Supreme Court presentations in
cases affecting the health or welfare of classes
of individuals. This model was later successfully
used in Brown v. Board of Education to
demonstrate the harmful psychological effects of
segregated education on African-American children.
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Different role perspectives on the regulation of
minors access to abortion

• Philosopher Should minors be required to notify
  or get consent from one or both parents? To wait
  24 or 48 hours?
• Legislator Should we enact a statute that
  requires minors to
• Judge or Justice reviewing constitutionality of
  statute
• Does such a statute comport with the requirements
  of the 14th amendment?

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The full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or limited
by the precise terms of the specific guarantees
elsewhere provided in the Constitution. This
'liberty' is not a series of isolated points
pricked out in terms of the taking of property
the freedom of speech, press, and religion the
right to keep and bear arms the freedom from
unreasonable searches and seizures and so on. It
is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary
impositions and purposeless restraints." Justice
John Harlan, dissent in Poe, the precursor to
Griswold.
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How did such statutes become subject to the Due
Process limitations of the 5th and 14th
amendments?

• 1963 Griswold v. Connecticut
• Substantive Due Process
• Right to privacy of married couples to use
  contraception prohibits state from banning
• 1967 Loving v. Virginia
• Same right prohibits state from banning
  inter-racial marriage
• 1973 Roe v. Wade
• Same right prohibits state from banning abortion
• May regulate depending on trimester of pregnancy

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How did such statutes become subject to the Due
Process limitations of the 5th and 14th
amendments?

• 1989 Webster vs. Reproductive Health Services
• Reaffirmed abortion fundamental right
• Viability crucial tipping point when more
  regulations possible
• But must not impose an undue burden
• 1992 Planned Parenthood v. Casey
• Reaffirmed right to privacy and undue burden
  test
• Broad language defining scope of right to privacy
• 2006 Ayotte vs. Planned Parenthood
• Consent law with no exception for womens health
  had been struck down in its entirety Supreme
  Court sent back for more narrow remedy

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Problems defining scope of the right to privacy

• Became important as different issues came before
  the Court, such as the right to assisted
  suicide or right of consenting same-gender
  adults to have sex or engage in polygamy
• Different scopes from broad to narrow
• Right to be let alone if you arent hurting
  someone else (Bowers dissent)
• Right to decide most intimate and personal
  choices of a lifetime that define ones own
  concept of existence (Casey dicta)
• Personal decisions involving family, marriage,
  procreation, conception, child rearing, and
  education (Bowers majority)
• Historically protected and rooted in our history
  and traditions (Cruzan majority)

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Legal analytical framework for review of
constitutionality of statute

• Must be at least a rational relationship between
  the statute and a legitimate state interest
• If so, then balance
• Individual interest (fundamental or ordinary)
  
• against
• State interest (significant or compelling)
• If strict scrutiny legislation must be
  narrowly drawn and minimally intrusive

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Method for policy analysis of the issue

• Identify the states purposes
• Are they legitimate? How weighty Significant or
  Compelling?
• Are they policies or principles?
• What empirical assumptions underlie the statute?
• What are the empirical effects of the rule?
• Are they rationally related to the states
  purposes?
• Are there any positive or negative unintended
  consequences?
• Does the rule implicate legally recognized
  principles?
• Are these ordinary or fundamental rights?
• How would you characterize the scope of the right
  or principle?
• Is the rule narrowly drawn and properly targeted?
• Balance individual versus state interests

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Identify the states purposes (And empirical
assumptions underlying them) Protect the health
of minors, especially psychological
sequela of abortion (Assumes minors are
especially vulnerable) Facilitate good family
communication and parental role (Assumes
coerced communication will be helpful) Ensure
that the decision is knowing and
intelligent (Assumes minors less competent than
adults)
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Identify empirical effects of law Some minors
who otherwise wouldnt do talk with
parent(s)? Increase minors health
awareness Discourage unsafe sex and unplanned
pregnancies
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Identify other unintended empirical
consequences of law Delay in time to
termination of pregnancy and attendant
increased health risks Travel to out-of-state
clinic Stress, embarrassment, trauma for
minor Family conflict, especially in
dysfunctional families Minors preferences may be
over-ruled and more unwanted babies born
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Problems with APA Brief in Hartigan

• Overstated unvarying and highly significant
  findings
• Very small and unrepresentative samples
• Verbal reports of thought processes problematic
• Hard to prove no difference
• Negative findings often not published
• Power very weak with small sample
• Few studies compared adolescents with adults
• Hard to generalize from lab to real life

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A Embarrassing Scientific Flip-Flop?

• In Roper v. Simmons, a 2005 case challenging the
  constitutionality of executing juvenile
  delinquents, the APA filed a brief that argued
  impulsiveness, susceptibility to peer pressure,
  and even physically underdeveloped brains make
  adolescents less culpable for their actions than
  legal adults
• Scalia wrote The APA has previously taken
  precisely the opposite position before this
  court.

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Method for policy analysis of the issue

• Identify the states purposes
• Are they legitimate? How weighty Significant or
  Compelling?
• Are they policies or principles?
• What empirical assumptions underlie the statute?
• What are the empirical effects of the rule?
• Are they rationally related to the states
  purposes?
• Are there any positive or negative unintended
  consequences?
• Does the rule implicate legally recognized
  principles?
• Are these ordinary or fundamental rights?
• How would you characterize the scope of the right
  or principle?
• Is the rule narrowly drawn and properly targeted?
• Balance individual versus state interests

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Planned Parenthood v Casey Identify the
states purposes Improve communication among
spouses Promote integrity of the
marriage What empirical assumptions underlie the
statute? Exemptions will prevent possible
harms What are the empirical effects of the
rule? May lead to stress, psych abuse,
violence Over-riding womans choice Does the
rule implicate legally recognized principles?
Womans right to choose Husbands right to
input on children he helps create Is the rule
narrowly drawn and properly targeted?