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Forensic Neuropsychology


Title: Forensic Neuropsychology - Lecture 1 Author: Russell M. Bauer Last modified by: RBauer Created Date: 5/13/1997 10:41:14 PM Document presentation format – PowerPoint PPT presentation

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Title: Forensic Neuropsychology

Forensic Neuropsychology
  • Introduction to the Legal System
  • May 25, 2006

Law and Mental Health
  • Domains of interaction
  • competency
  • criminal responsibility
  • mental injury
  • juvenile, family matters
  • Mental health professionals as experts
  • Law-mental health organizations
  • American Psychology-Law Society (APA Div. 41)
  • American Academy of Forensic Psychology

Lawyer-Psychologist Interactions
  • Training Issues
  • few psychologists with specific legal training
  • few lawyers knowledgeable about psychology
  • Attitudinal Differences
  • emphasis on civil liberties vs. trying to help
  • Free-Will vs. Determinism
  • Simple vs. Multiple Causation

Case Studies in Forensic Neuropsychology
When Worlds Collide
  • Psychologists and attorneys often operate
    according to different philosophies
  • Psychologists and attorneys frequently use
    evidence differently
  • Psychologists and attorneys often have different
    ideas about causation
  • Psychologists and attorneys operate according to
    different rules

Paradigm Conflicts
  • Free Will vs. Determinism
  • cant differentiate behavior which is forced or
    overborne vs. freely chosen
  • example voluntary behavior and the law of
  • example voluntary intoxication

Probability Conflicts
  • Psychological proof is probabilistic, rarely
  • Legal proof is probabilistic, then absolute
  • Preponderance of evidence (51)
  • Clear and convincing evidence (?75)
  • Beyond a reasonable doubt (95)
  • After burden is met, decision is binary and
    absolute (absolutely guilty, absolutely liable,

Paradigm Conflicts (contd)
  • Process of Fact-Finding
  • cooperative (behavioral science) vs. adversarial
  • law seeks to render justice, not necessarily seek
    the truth (persuasion may incorporate only
    favorable findings)
  • differences in reliance on past information or
    history (e.g., past criminal behavior)
  • Relevance of Diagnosis
  • diagnosis important in clinical care, but largely
    irrelevant to mental health law (except that a
    diagnosis exists)

Definition of Expert Witness
  • Individual who, by nature of education,
    experience, or training, is qualified to render
    opinions that will assist the trier of fact
    (i.e., judge, jury) in reaching an appropriate
    decision in the legal matter at hand. Lay
    witnesses are allowed to testify only as to their
    experiences (perceptions, observations,
    memories). Expert witnesses can testify as to

Adapted from FRE
In this age of science, we must build legal
foundations that are sound in science as well as
in law. Scientists have offered their help. We in
the legal community should accept that offer. We
are in the process of doing so. Associate
Justice Stephen Breyer Introduction in
Reference Manual on Scientific Evidence, Second
Edition (Federal Judicial Center, 2000)
Scientific Evidence and Experts
  • Differences between clinical and scientific
    opinions (wisdom v. fact, others?)
  • Scientific Evidence Standards
  • 1975 Publication of Federal Rules of Evidence
  • Before 1993
  • Frye v. U.S. (1923 Appellate ruling) the
    general acceptance standard (e.g., Newtons law
    vs. moon-behavior relationship)
  • After 1993
  • Supreme Court Trilogy
  • Daubert v. Merrell Dow Pharmaceuticals
    (1993)-evidence standards
  • General Electric Company v. Joiner
    (1997)-deductive process
  • Kumho Tire Co, LTD v. Carmichael (1999)-not just
    science, but also technical

Frye Standards
  • Frye-1 Fundamental scientific principle or
  • Frye-2 The technique used for applying the
    fundamental scientific principle or discovery
  • Frye-3 The techniques specific application on
    which the expert testimony is to be based

Daubert v. Merrell Dow
  • Reasoning or methodology underlying testimony
    must be scientifically valid
  • Judge as gatekeeper
  • Daubert Criteria for admissability
  • Whether theories or techniques on which testimony
    rests are based on a testable hypothesis
  • Whether the theory or technique has been
    subjected to peer review
  • Whether the technique has known or potentially
    known error rate
  • Whether the method/theory is generally accepted
    in the scientific community
  • Discussion point What are the implications of a
    generally accepted standard?

General Electric v. Joiner
  • Reinforced gatekeeper function of trial judge
  • Upheld trial courts refusal to admit certain
    testimony because it was not relevant
  • Thus, not just reliability, but relevance as a
  • Nothing in either Daubert or the Federal Rules
    of Evidence requires a district court to admit
    opinion evidence which is connected to existing
    data only by the ipse dixit personal opinion of
    the expert. A court may conclude that there is
    simply too great an analytical gap between the
    data and the opinion proffered.

Kumho Tire v. Carmichael
  • Extended expert testimony beyond scientific
    evidence to all expert testimony based on
    skill-experience-based observation
  • Four Daubert criteria may be relevant, but are
    not essential other factors may be operative in
    the particular case
  • Afterwards, Rule 702 of FRE modified
  • If scientific, technical, or other
    specialized knowledge will assist the trier of
    fact to understand the evidence or to determine a
    fact in issue, a witness qualified as an expert
    by knowledge, skill, experience, training, or
    education, may testify thereto in the form of an
    opinion or otherwise if (1) the testimony is
    based upon sufficient facts or data, (2) the
    testimony is the product of reliable principles
    and methods,and (3) the witness has applied the
    principles and methods reliably to the facts in

Clinical Levels of Inference in Expert Testimony
  • Describing behavioral observation (he was
  • Inferring a general mental state (he was
  • Fitting the mental state into a theoretical
    construct (his behavior was consistent with a
    frontal syndrome)
  • Diagnosis (his behavior suggests a personality
    change due to organic brain damage

Levels of Inference (contd)
  • Relating the formulation to legally relevant
    behavior (at the time of the offense, he was
    unable to control his violent impulses)
  • Elements of the ultimate legal issue (Although
    he understood right from wrong when the offense
    committed, he couldnt control his behavior
    because of brain damage
  • Ultimate legal issue (he was insane at the time
    of the offense)

What is law?
  • a principle or rule of conduct so established as
    to justify a prediction with reasonable certainty
    that it will be enforced by the courts if its
    authority is challenged
  • four main elements
  • rule of conduct
  • enforceable
  • reasonable certainty
  • enforcement through the courts

Types of Law
  • Constitutional Law overarching establishes
    other types of law most important constitutional
  • 5th privilege against self-recrimination
  • 6th right to counsel
  • 14th right to due process under the law
  • Statutory Law established by legislature (often
    at state level)
  • some statues made up by more specialized bodies
    (e.g., DHHS)

Types of Law (contd)
  • Case Law decisions made by judiciary and used
    as precedent (e.g., Frye, Dusky)
  • not just interpretation, but makes suggestions
    (e.g., when law is found unconstitutional)
  • Administrative Law rules and regulations
    constructed by executive branch

Basic Structure of Court System
  • Basic elements legislature (makes law),
    executive (enforces law), judiciary
    (interprets law), but there are exceptions
  • Criminal law handled by states, unless a
    federal crime
  • interstate cimes
  • offenses targeting federal official
  • violations of civil rights law
  • offenses on, or involving, federal property

Classifications of Law
  • Criminal vs. Civil
  • criminal state v. individual
  • civil individual v. individual (contracts,
    property, torts, wills)
  • Substantive vs. procedural
  • substantive rights, duties/responsibilities
  • procedural how substantive law is applied

Criminal Law
  • Crime is any act or omission of an act in
    violation of a public law
  • Levels of criminal activity
  • Felony
  • Misdemeanor
  • States develop criminal statutes but there is a
    Model Penal Code

Civil Law
  • Commitment
  • Guardianship
  • Wills and probate
  • Tort law

Basic Court Structure (contd)
  • Federal Courts
  • Trial court district court is trial court
    (Florida has 8 districts)
  • Appellate court 2 levels Circuit Court of
    Appeals (Atlanta one of 12) US Supreme Court
  • State Judicial System
  • Trial court
  • 2 levels of general jurisdiction trial courts
    (minor, major criminal/civil)
  • special jurisdiction courts (juvenile court,
    divorce court)
  • Appellate court 2 levels District Court of
    Appeals, State Supreme Court

Types of Judicial Proceedings
  • Criminal beyond reasonable doubt burden on
  • Civil preponderance of evidence, burden on
  • Administrative clear and convincing burden on
  • Quasi-Criminal involving significant
    deprivation of liberty (e.g., commitment) clear
    and convincing evidence

Basic Principles of Psychologist-Attorney
  • Understand the legal system
  • Practice good neuropsychology/clinical psychology
  • Adhere to ethical principles
  • Be courtroom familiar/saavy

Greiffenstein Cohen, 2005
Phases of Attorney-Psychologist Interaction
  • Preassessment phase
  • Whats the case about?
  • Whats my role?
  • Fact witness
  • Expert witness
  • Litigation consultant
  • Whats the time-frame?
  • Availability of the plaintiff/defendant?
  • Fee schedule

Greiffenstein Cohen, 2005
Phases of Attorney-Psychologist Interaction
  • Assessment Phase
  • Review of outside records
  • Direct interview
  • Collateral report
  • Neuropsychological testing
  • Specialized testing

Greiffenstein Cohen, 2005
Phases of Attorney-Psychologist Interaction
  • Report-writing
  • Differences between clinical and forensic reports
    (see Greiffenstein Cohen, 2005, p. 59)

Phases of Attorney-Psychologist Interaction
  • Trial Phase
  • Discovery
  • Interrogatories
  • Depositions
  • Records exchange
  • Admissibility (see previous discussion)
  • Deposition/testimony
  • Qualification
  • Direct Examination
  • Cross-Examination
  • Post-Trial Phase

Greiffenstein Cohen, 2005