Exam 3 law

Mental Health Courts

-But deinstitutionalization, the long-term trend of closing mental hospitals and transferring care to community-based mental health treatment facilities, has left many mentally ill individuals without services or medication. As a result, the mentally ill have experienced higher rates of homelessness, unemployment, alcohol and drug use, and physical and sexual abuse. They also experience high rates of incarceration: 17% of men and 34% of women in jails suffer from a serious mental illness or post-traumatic stress disorder -. According to the criminalization hypothesis, a sub-group of mentally ill offenders are arrested for offenses caused by their untreated symptoms of mental illness. Mental health courts were developed for offenders dealing with serious mental illness and seek to "decriminalize" this population. By 2016, there were over 300 mental health courts in the United States, according to the Council for State Governments -the first decision in a mental health court is whether to divert the offender from the regular criminal courts to treatment programs associated with the mental health court. This decision, which usually requires the consent of both the offender and the victim, is made after an evaluation of the offender and by considering the nature of the offense. If the offender is diverted, the mental health team prepares a treatment plan for mental health care and reintegration into society. Close monitoring is essential. Defendants are often assigned to a probation officer who is trained in mental health and who carries a greatly reduced caseload in order to provide a more intensive level of supervision and expertise. The charges are typically dismissed if the offender follows the treatment plan - Evaluations of mental health courts suggest that they have been effective in reducing recidivism. People who completed a treatment program associated with a rural North Carolina mental health court were 88% less likely to recidivate than people who did not complete treatment. -Although findings are limited, it appears that mental health courts are also cost-effective, reducing the need for services such as psychiatric emergency room visits and other crisis interventions. -There are two broad concerns associated with mental health courts, however. First, participants may feel coerced into participating. In one study involving over 200 participants, the majority were unaware that the program was voluntary and did not understand many of the nuances of the program. The second concern involves the selection of participants. Recent studies suggest that gender and racial bias may influence the way that potential clients are identified, recruited, and eventually selected to participate. According to a meta-analysis of 18 studies , the majority of participants in mental health courts are Caucasian males in their mid-30s, whereas African American males constituted the largest demographic group in prisons and jails in 2007 and mental health diagnoses are more prevalent among disadvantaged minority groups - A related concern is the possibility that the selection process, rather than the interventions provided, accounts for the modest positive outcomes associated with participating in mental health courts. This could happen if only those potential clients who accept their mental health disorder and who are amenable to treatment are invited to participate. After evaluating the selection procedures in six demographically diverse mental health courts, it concluded that client selection might explain findings on the effectiveness of mental health courts

self-serving bias

tendency to interpret information or make decisions in ways consistent with one's own interest

criticisms of expert witnesses

- under criteria established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) and Kumho Tire Co. v. Carmichael (1999), the judge serves as a "gatekeeper" who must determine whether the theory, methodology, and analysis that are the basis of the expert's opinion measure up to scientific standards. -The Daubert and Kumho decisions apply to all cases in federal court. In-state court, the prevailing standard may also be Daubert—or it may stem from an earlier decision (Frye v. United States, 1923) holding that expert testimony must be based on techniques and process that are "generally accepted" in the field to which they belong. -Judges generally do not perform the gatekeeper function well. Many critics, including experts and judges themselves, believe that the difficulty of distinguishing valid from invalid scientific evidence will result in jurors too often being exposed to "expert" testimony that is based on little more than "junk science" -What are the main problems with testimony by psychological or psychiatric experts? 1. The scientific foundation for much of the testimony offered in court is often less than adequate, 2. Much of the testimony is of limited relevance, 3. Experts are too often permitted to testify about "ultimate issues" (Is the defendant insane? Was the plaintiff emotionally damaged?), which should be left to juries to decide. 4. Expert testimony is frequently used to introduce information that would otherwise be prohibited because it is hearsay. (Experts are permitted to share this information with juries if it is the kind of information they routinely rely on in reaching expert opinions.) 5. The adversarial system compromises experts' objectivity. Experts may have some bias toward the side that retained them. 6. Expert testimony is very expensive, and relying on experts gives an advantage to the side with more money. 7. Testing the reliability and validity of expert opinions through cross-examination is inadequate because attorneys are usually not well equipped to conduct such cross-examination, and juries often fail to understand the significance of the information that is uncovered during the cross-examination. 8. The spectacle of experts disagreeing with one another ultimately reduces the public's confidence in mental health professionals. - criticisms of forensic mental health assessment that he calls "the five I's": ignorance, irrelevance, intrusion, insufficiency, and incredibility. These refer to not knowing (or not using) the proper legal standard; providing evidence that goes beyond what is relevant to the proceeding; offering conclusions that impinge upon the court's domain; providing limited supporting evidence for one's conclusions, and offering conclusions that are not justified by the evidence one does provide.

Workers' Compensation

-When a worker is injured in the course of his or her job, the law provides for the worker to be compensated through a streamlined system that avoids the necessity of proving a tort. Prior to workers' compensation, a person who was injured at work had to prove that the employer was responsible for a tort in order to receive compensation. This was difficult because employers had several possible defenses to the worker's claim. As a result, many seriously injured workers and their families were denied any compensation for their work-related injuries. -For their part, workers give up their right to pursue a tort case against their employers, and if they are compensated, the size of the award they receive is determined by (1) the type and duration of the injury and (2) their salary at the time of the injury. Workers can seek compensation for ■ physical and psychological injuries suffered at work ■ the cost of whatever treatment is given ■ lost wages ■ the loss of future earning capacity -Determining how much impairment in future earning capacity a given mental disorder or psychological condition might produce is very difficult. Many states require evaluators to use the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA, 2007). The Guide provides five categories of impairment, ranging from "no impairment" to "extreme impairment," that clinicians can use to organize their descriptions of a claimant. -Both employers and employees should benefit from a process in which workers' claims can be resolved fairly quickly, which is a major goal of the workers' compensation system. Formal trials are not held, and juries do not resolve these cases; they are heard and decided by a hearing officer or commissioner. (These decisions can be appealed.) They often drag on for years as both sides go through a process of hiring one or more experts to examine the worker and give opinions about the injuries and any disability suffered. -Claims for mental disability usually arise in one of two ways, though there is a third (less likely) basis for a claim as well. First, a physical injury can lead to a mental disorder and psychological disability. A common pattern in these physical-mental cases is for a worker to sustain a serious physical injury (e.g., a broken back or severe burns) that leaves the worker suffering chronic pain. -The second work-related pathway to mental disability is for an individual either to suffer a traumatic incident at work or to undergo a long period of continuing stress that leads to substantial psychological difficulties. -. In a third kind of case, known as mental-physical, work-related stress leads to the onset of a physical condition such as high blood pressure. Many states have placed restrictions on these types of claims, and psychologists are seldom asked to evaluate them. -The number of psychological claims in workers' compensation litigation has increased dramatically in the last 25 years. First, the rise in psychological claims might be due to the increased percentage of female workers. A second possibility is that a shift in the job market from manufacturing and industrial jobs to service-oriented jobs has produced corresponding increases in job-related interpersonal stressors and decreases in physical injuries. A third possibility is that claims of psychological impairments are motivated primarily by financial incentives, generating a range of cases in which genuine impairments are mixed in with exaggerated or false claims of disability

Benefits of Plea Bargaining for Defendants and Attorneys

-Why do defendants plead guilty? There are multiple reasons: because the evidence of guilt is strong and therefore, the likelihood of conviction is high, and because, if convicted, they would face lengthy sentences -. Some court observers suspect that tougher sentencing laws of the past few decades have allowed prosecutors to gain even greater leverage over criminal defendants, threatening them with mandatory or harsh sentences. -Although prosecutors have most of the power in plea bargaining, defendants have the final say in any decision. Before accepting a guilty plea, judges ask defendants if they made the decision freely and of their own accord. -Defense attorneys can have an impact in this decision. Their recommendations interact with the defendant's wishes in complex ways to yield a decision. Defense attorneys gauge whether to recommend a plea offer based on the strength of the evidence against the defendant and the severity of the punishment. When the evidence points toward conviction and the defendant is facing a lengthy prison sentence, defense attorneys will recommend strongly that defendants accept plea offers. -Study where attorneys read vignettes that varied the strength of the evidence against a hypothetical defendant, the potential sentence if convicted, and the defendant's wishes. When the probability of conviction was high and the likely prison sentence was long, attorneys strongly recommended the plea offer, regardless of the defendant's desires. But when the probability of conviction was low and the prison sentence was short, attorneys were willing to consider the defendant's wish to proceed to trial. When she asked defense attorneys from across the country to respond to scenarios that varied the race of the defendant, Edkins (2011) found that the plea deals attorneys felt they could secure for Caucasian clients contained shorter sentences than those they felt they could obtain for African American clients, even though they were slightly more likely to think that the Caucasian clients were guilty. -Prosecutors are motivated to plea bargain for one or more of the following reasons: (1) to dispose of cases in which the evidence against the defendant is weak or the defense attorney is a formidable foe; (2) to ensure a "win" when their office keeps a record of the "wins" (convictions) and "losses" (acquittals) of each prosecuting attorney in the office; (3) to obtain the testimony of one defendant against a more culpable or infamous codefendant; and most importantly (4) to expedite the flow of cases for an overworked staff and a clogged court docket. -Plea bargaining serves the need of the defense attorney to appear to gain something for his or her client. In addition to the reasons we just enumerated, prosecutors also wish to appear fair and reasonable. Both prosecutors and defense attorneys believe they are making the "punishment fit the crime" by individualizing the law to fit the circumstances of the case, and both are comfortable with a system in which most cases are resolved without a clear winner or clear loser. - In fact, plea-bargaining procedures are so well known that in some cases no formal bargaining even takes place. Rather, everyone involved—prosecutor, defense attorney, defendant, and judge—knows the prevailing "rate" for a given crime, and if the defendant pleads guilty to that crime, the rate is the price that will be paid.

Post-Initial Hearings: Jail/Prison, Courts, Forensic Evaluations, and Commitments (Intercept 3)

-most widely recognized of the five. This is the stage at which problem-solving courts (also called specialty courts) such as drug courts, mental health courts, homeless courts, domestic violence courts, and community courts have been developed

-Competence to Be Sentenced.

In general, the standard for competence to be sentenced is that defendants can understand the punishment and the reasons why it is being imposed, and can meaningfully execute their right to address the court at sentencing.

virtual reality in trial

-One study examined the effects of visual presentations on jurors' verdicts in a racial discrimination case involving statistical evidence. In a simulated trial in which Africans American employees sued the railroad company they worked for, mock jurors saw different versions of the plaintiffs' and defendant's opening statements. Researchers varied whether attorneys' spoken statements were accompanied by visual presentations that illustrated the statistical evidence. So when the plaintiffs included a visual presentation and the defendant did not, jurors deemed the defendant most responsible and same vice versa. Apparently, even a relatively simple visual presentation by the plaintiffs helped participants understand the statistical evidence that supported their racial discrimination claim. -Basic psychological theorizing about the vividness effect suggests that information has a greater impact on judgments and decisions when it is vivid and attention grabbing than when it is pallid and bland. In the racial discrimination study we just described, recall of each party's evidence improved when that party presented visual displays, suggesting that information presented in a highly imaginable way is more memorable than simple verbal descriptions of the same material. By itself, vivid information is not necessarily prejudicial in a courtroom, but it rises to that level when the likelihood of prejudice exceeds the objective probative value of the evidence. -Virtual reality environments have piqued psychologists' interests in the notion of presence, or the degree to which a user or observer has the impression of actually "being in another world" and present in the virtual environment. Because complete immersion of the senses—a sense of presence—is persuasive in ways that two-dimensional computer animations are not virtual environments also raise questions about whether observers will give this evidence more weight than it deserves; in short, whether its prejudicial effects outweigh its probative value. -Another concern about the use of virtual environments in court is that people who witness them may be so swept up in the experience and persuaded by the lifelike nature of these scenes that they have difficulty imagining or visualizing a different point of view. This notion, termed experiential inflammatory bias, suggests that virtual environment demonstrations may be prejudicial to the side that did not introduce them, and that both sides should have the opportunity to manipulate and alter any virtual environment introduced into evidence

Competent with Medication, Incompetent without

-The U.S. Supreme Court case Sell v. U.S. (2003) -In this decision, the Court weighed these considerations and outlined the conditions under which the government may forcibly administer psychotropic medication to render a mentally ill defendant competent to stand trial. The treatment must be (1) medically appropriate, (2) substantially unlikely to have side effects that may undermine the trial's fairness, and (3) necessary to significantly further important government trial-related interests.

advantages for prosecutors during trial

It has the full resources of the government at its disposal to carry out a prosecution. Detectives can locate witnesses and subpoena them. The prosecutor can request testimony from chemists, fingerprint examiners, medical examiners, psychiatrists, photographers, or other appropriate experts. 2. In the trial itself, the prosecution presents its evidence before the defense, getting "first crack" at the jury. At the end of the trial, when both sides are permitted closing arguments, the prosecution again gets to go first and also gets the chance to offer a final rebuttal to the defense attorney's closing argument. Therefore, the prosecution has the advantages of both primacy and recency in its attempts at jury persuasion, and research shows that information presented first (primacy) and last (recency) has more persuasive influence than information presented in the middle of a discussion.

The Trial as a Test of Credibility

Views the trial as a rational process that not only weighs the evidence, but assesses the truthfulness/meaning of the evidence. -They must focus on the way evidence is presented, the qualifications of witnesses, and the inconsistencies between witnesses. Competence and trustworthiness of witnesses take on added importance in this image. -Both judges and jurors can make unwarranted inferences about witnesses and attorneys on the basis of race, gender, mannerisms, or style of speech. Judges' and jurors' judgments of credibility may be based more on stereotypes, folklore, or "commonsense intuition" than on the facts

discovery

process of obtaining evidence from opposing counsel -Some states require prosecutors to turn over to the defense all reports, statements by witnesses, and physical evidence. Most states require only that the prosecutor share certain evidence (e.g., laboratory reports) and evidence that is exculpatory (i.e., that tends to show the defendant is not guilty or suggests that prosecution witnesses are not credible). In part because prosecutors failed to share exculpatory evidence, a Colorado man spent eight and a half years in prison for a crime he didn't commit -If the prosecution is required to reveal laboratory reports, the defense will likewise be required to share such reports. In many states, the defense is required to notify the prosecution if it intends to rely on certain defenses, notably insanity and alibi defenses. The reason for requiring such pretrial notice is to give the state an opportunity to investigate the claim and avoid being surprised at trial. - both sides file pretrial motions seeking favorable rulings on the admissibility of evidence. 1. Motion for separate trials. When two or more defendants are jointly indicted, one of them can be counted on to request a separate trial, claiming that to be tried together would be prejudicial. Such a motion was granted in the case of Timothy McVeigh and Terry Nichols, who were convicted in separate trials of bombing the federal building in Oklahoma City, killing 168 people. McVeigh was convicted of murder and sentenced to death, but Nichols was convicted of a lesser charge (conspiracy) and sentenced to life imprisonment. 2. Motion to sever counts. Suppose the indictment charges the defendant with robbing a convenience store on April 13 and burglarizing a house on April 15. The defendant may request separate trials on these offenses. A defendant may argue that it is prejudicial for the same jury to hear evidence about separate crimes because the jury will be tempted to combine the evidence introduced on the separate crimes to find the defendant guilty of each crime. There is good reason for defendants to be concerned about how a jury will react to multiple charges. Psychological research studies that simulate jury decision-making have shown that jurors are more likely to convict a defendant on any charge (e.g., robbery) when it is combined with another (e.g., burglary) than when it is tried alone A review of nearly 20,000 federal criminal trials over a five-year period reached a similar conclusion . 3. Motion for change of venue. The defendant may request a change of venue on the ground that community opinion, usually the product of prejudicial pretrial publicity, 4) Motion to suppress a confession or other statement by the defendant. The Fifth Amendment protects against self-incrimination, and the Sixth Amendment forbids the use of a statement taken in violation of the right to counsel. One or both of these constitutional provisions may become relevant any time the prosecution offers a confession or other statement by a defendant as evidence of guilt. Typically, defense counsel files a motion alleging that the confession was obtained in violation of the defendant's constitutional rights, the prosecutor files a written response, and the court holds a hearing at which the defendant and police give their versions of the circumstances under which the confession was obtained. The judge decides the issue on the basis of what was said and the credibility of the witnesses. Criminal defendants who believe that their confessions were coerced or made involuntarily have good reason to try to suppress them, because juries tend to accept a defendant's confession without careful evaluation of the circumstances that led to the confession. 5)Motions in limine

overconfidence bias

unrealistically optimistic view of the likelihood of a favorable outcome in litigation

Public Perceptions of the Insanity Defense

-A large number of criminal defendants use the insanity defense. -Those defendants found NGRI are released back into society shortly after their NGRI acquittals. -Persons found insane are extremely dangerous

Evaluating Competence

-After a judge orders a competence examination, arrangements are made for the defendant to be evaluated by one or more mental health professionals. •Outpatient basis because inpatient exams are more costly and time-consuming, and local outpatient evaluations are usually sufficient for evaluative purposes •Mostly psychologists, especially reports •Under the Dusky standard having mental illness or mental retardation does not guarantee that a defendant will be found incompetent to stand trial. The crucial question is whether the disorder impairs a defendant's ability to participate knowingly and meaningfully in the proceedings and to work with the defense attorney

malingering

-Another complication may affect the evaluations of individuals who claim to have suffered psychological harm: Plaintiffs may be motivated to exaggerate their symptoms in order to improve their chances of winning large awards. Sometimes such symptom exaggeration or fabrication (called malingering) involves outright lying. In other cases, a genuine behavioral health disturbance is present, but the plaintiff exaggerates its seriousness. A meta-analysis found that the possibility of receiving compensation for an injury was associated with more frequent reports of pain. It might work in the other direction as well—individuals with more intransigent pain might be more likely to litigate their claims. Or a third influence might affect both; for instance, lifestyle might influence both recovery from injury and propensity toward litigation. - In a review of the ethics of attorneys "coaching" their clients on how to "beat" psychological tests in civil litigation cases, Victor and Abeles (2004) argued that these techniques are well within the ethical boundaries of legal practice and that attorneys often view such coaching as an important part of advocating for their clients. -Another study found that some attorneys believe it to be malpractice not to coach their clients on the malingering's scales of psychological assessments These coaching strategies may be effective. -One study revealed that the F scale on the MMPI-2 (one of the instrument's validity scales designed to detect possible malingering) was not as effective at identifying coached malingerers as at identifying noncoached malingerers. Of course, forensic evaluators who suspect that coaching has occurred are likely to compensate by gathering additional information from sources other than self-report. -some have recommended that clinicians consistently consider response style in forensic evaluations. This refers to whether evaluates are responding as accurately as they can ("reliable"), exaggerating or fabricating symptoms ("malingering"), denying or minimizing symptoms ("defensive"), or failing to engage in the evaluation and respond meaningfully to questions ("uncooperative"). When response style appears anything other than reliable, then evaluators should take extra steps to evaluate it

Criticisms of Problem-Solving Courts

-One concern is that regardless of the type of specialty court, they are presided over by middle-class judges who inevitably reflect their own values and who may become inappropriately paternalistic in what they require of people -Threatening punishment to coerce rehabilitation is unfair. -Guilt or innocence is not determined by a trial -Prosecutors feel pressured to favor rehabilitation of the offender over protection of society -defenders feel pressured to plead their clients guilty and to inform the court of clients' failure to comply with the terms of probation

M'Naghten rule

-Plagued by paranoid delusions, M'Naghten believed that the Prime Minister, Sir Robert Peel, was part of a conspiracy hatched by the Tory party against him. M'Naghten was charged with murder, and his defense was to plead not guilty by reason of insanity. Nine medical experts all agreed that he was insane. On instructions from the lord chief justice, the jury rendered a verdict of not guilty by reason of insanity. M'Naghten was committed to the Broadmoor Asylum for the Insane, where he remained for the rest of his life. -The public was infuriated, as was Queen Victoria, who had been the target of several attempts on her life. She demanded a tougher test of insanity. -The M'Naghten rule, which became the standard for defining insanity in Great Britain and the United States, "excuses" criminal conduct if defendants, as a result of a "disease of the mind," (1) did not know what they were doing (e.g., believed they were shooting an animal rather than a human), or (2) did not know that what they were doing was wrong (e.g., believed killing unarmed strangers was "right"). The M'Naghten rule (or a close variation) is used in 23 states and the federal jurisdiction so it is the most frequentlyemployed legal standard for insanity in the United States. It has often been criticized on the basis that the cognitive focus ("knowing wrongfulness") is too limiting, and does not allow consideration of motivational and other influences affecting the control of behavior.

It Sends Criminals and Troublemakers to Hospitals and Then Frees Them.

-So we can conclude that some are released from the hospital sooner than they would have left prison, others stay as long (or longer) than they would have served in a prison sentence, and yet other insanity acquitters do not leave the hospital. -The biggest problem with such insanity acquittals is that they are sometimes highly publicized, contributing to the public's perception that they "happen all the time," and that the insanity defense is therefore a constant threat to justice. Such acquittals are relatively rare, in reality. It Is a Defense Only for the Rich -this criticism is weakened by the Supreme Court's 1985 ruling, in the case of Ake v. Oklahoma, that poor defendants who plead insanity as part of capital (death penalty) cases are entitled to psychiatric assistance at state expense in pursuing this defense. Many states and communities have extended this ruling by providing public funding for indigent defendants asserting an insanity defense.

Brawner rule

-This rule states that a defendant is not responsible for criminal conduct if he, "at the time of such conduct as a result of mental disease or defect, [lacks] substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law." This standard, or a variation, allows judges and juries to consider whether mentally ill defendants have the capacity to understand the nature of their acts or to behave in a lawful way. - As of 2015, it was used in 19 states Federal courts have also adopted the Brawner rule in a drastically altered form. -The Brawner test differs from the M'Naghten rule in three substantial respects. First, by using the term appreciate, it incorporates the emotional as well as the cognitive influences on criminal behavior. Second, it does not require that offenders exhibit a total lack of appreciation for the nature of their conduct, but only a lack of "substantial capacity." Finally, it includes both a cognitive element and a volitional element, making defendants' inability to control their actions a sufficient criterion by itself for insanity.

Assessment of Psychological Damages

-When a mental health professional assesses a plaintiff, the clinician will typically conduct an evaluation that, like most evaluations, includes a social history, a clinical interview, and a number of psychological tests and specialized forensic measures. One major difference, between standard clinical evaluations and forensic assessments is the much greater use of third-party interviews and review of available records in forensic examinations. - First, forensic experts must be sure that their opinions are based on accurate information, and self-reported information in the context of litigation is not necessarily accurate. Second, forensic experts are often asked to evaluate an individual's psychological condition at some specific time or in some particular situation in the past. Therefore, clinicians must use independent sources of information, when possible, to verify their descriptions and judgments about such matters. Using data from these sources, the clinician arrives at an opinion about the psychological condition of the person in question. -The more difficult question the clinician must answer in litigation is whether the psychological problems were caused by the tort, aggravated by the tort, or existed before the tort. The clinician needs to consider whether certain psychological conditions might have contributed to the plaintiff being injured in the first place. There is no established procedure for answering these questions, although most clinicians try to locate records and other sources of information that help -In some situations, a plaintiff might allege that he or she was targeted for harassment precisely because the defendants knew of some prior difficulty that made the plaintiff vulnerable to a particular kind of harassment. In such cases, the clinician must consider this additional information before reaching a conclusion about the significance of the prior psychological problem.

Juvenile Competence to Stand Trial

-he U.S. Supreme Court held that developmental immaturity distinguishes adolescents in some important ways from adult defendants (Graham v. Florida, 2010; JDB v. North Carolina, 2011; Miller v. Alabama, 2012; Roper v. Simmons, 2005) -Researchers have found that participants who were age 15 and younger were significantly impaired in ways that compromised their abilities to function as competent defendants in a criminal (adult) proceeding -Below-average intelligence was also associated with deficits in these functional legal capacities. Since a large proportion of adolescents in the juvenile justice system have below-average IQ, the risk for incompetence is further increased when adolescents in this system are transferred into criminal court -. Since the expectations for competence in juvenile court are different—adolescents are being tried in a setting that is designed for juveniles—it is more likely that an adolescent with limited functional legal capacities would be adjudicated competent in juvenile court than if he or she were tried in adult criminal court

criminalization hypothesis

idea that untreated symptoms of mental illness result in criminal behavior

Law Enforcement and Emergency Services (Intercept 1)

- Annual police encounters with citizens with mental health problems have been estimated at more than 300 encounters per 100,000 population across jurisdictions, with this rate increasing annually. In some such encounters, arrest is unnecessary. -What if police officers received specialized training in recognizing behavioral health symptoms and interacting with such individuals in a way that did not result in the escalation of conflict—but instead perhaps yielded the opportunity for needed treatment? This is the goal of specialized police responding. - In particular, the approach is known as Crisis Intervention Team (CIT) ) which provides police and other first responders (e.g., firefighters, emergency medical personnel) with enhanced knowledge and skills for use when they encounter individuals who may be experiencing a behavioral health crisis. CIT is intended to increase the number of treatment-oriented dispositions and decrease the number of minor arrests in such cases, as well as decrease the number of incidents in which the individuals or the police officers are harmed. -CIT-trained police officers reported better preparation for handling interactions with those experiencing a behavioral health crisis , were more likely to help individuals obtain mental health services, and were less likely to use physical force. Jail days were fewer for such individuals, and costs were shifted from criminal justice to treatment sources; diverted participants were also more likely to utilize mental health treatment (comply with medication, use hospital stay and emergency room visits, participate in counseling) and less likely to be treated for substance abuse on a residential basis -Following such diversions, those who were diverted did not differ from others in their number of arrests over the next year

Difficulties in Assessing Dangerousness

- Clinicians who attempt to answer these questions perform risk assessments; using the best available data and research, they try to predict which persons are and which are not likely to behave violently in certain circumstances, give some estimate of the risk for violence, and offer suggestions on how to reduce the risk -The base rate of violence in some groups is low, so clinicians are being asked to predict a phenomenon that rarely occurs. The clinical assessments of persons assessed for violence risk are often conducted in hospitals or prisons, whereas the environment where violence is being predicted is the community. The predictions have often been for long-term risk, which is harder to predict than violence risk over a shorter time frame. The original consensus of researchers was that clinicians could not accurately predict future violence. -Researchers have learned that these predictions can sometimes reach moderate to good levels of accuracy under certain conditions. Specifically, when clinicians have information about a range of historical, personal, and environmental variables related to violence, when they limit their predictions to specific kinds of violent behavior, and when they concentrate on appraising risks in certain settings rather than in all situations, they can assess violence risk with a fair degree of accuracy. Although they still make a large number of errors, they do significantly better than chance. -A number of specialized tools are now available some of which are actuarial. An actuarial tool (such as the Violence Risk Appraisal Guide) uses specified risk factors that are rated and scored, with scores being combined into a final score that is then applied to the prediction in a way that is specified by a formula (which in turn has been developed through empirical research). - Other tools (such as the HCR-20V3, which measures historical, clinical, and risk management variables employ "structured professional judgment." They do not combine scores on included variables to yield a total score. Rather, the evaluator is asked to make a judgment about risk in light of the status of these risk factors. Evidence indicates that good actuarial and structured professional judgment approaches to risk assessment are comparably accurate in predictions of violence

alternatives to mediation

- Many judges require divorcing couples to attempt to settle issues of custody, visitation, and support through mediation, a form of alternative dispute resolution that minimizes the adversarial quality of the typical custody dispute. If mediation fails, the couple can return to court and have the judge decide the issues. The benefits of custody mediation are that resolutions are reached more quickly, and with better compliance among the participants, than with adversarial procedures. -a mediator shall ■ Recognize that mediation is based on the principle of self-determination by the participants. ■ Conduct the mediation process in an impartial manner; disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator; structure the mediation process so that participants make decisions based on sufficient information and knowledge. ■ Assist participants in determining how to promote the best interests of children. ■ Recognize a family situation involving child abuse or neglect or domestic violence and take appropriate steps to shape the mediation process accordingly. ■ Suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons. -Families that go through mediation to determine custody have better adjustment than those going through the more traditional child custody litigation process. Mediation is a beneficial alternative to litigation for couples who are divorcing. Outcomes considered in this meta-analysis include satisfaction with process and outcome, emotional satisfaction, spousal relationship, and understanding children's needs.

Is putting juveniles in the adult system effective in reducing reoffending?

- One study found no differences in the juvenile homicide/manslaughter rates in the states with prosecutorial discretion policies in the first five years after transfer laws were enacted. - Housing juveniles with adult criminals may also promote criminal attitudes and motivations. Juveniles detained in New York's adult system were 89% more likely to be rearrested for a violent offense and 44% more likely to be rearrested for a property offense than juveniles in the New York. Higher rates of recidivism have also been observed in other studies with youth detained in the adult correctional system. -Research also suggests that juveniles in adult facilities were more likely to be sexually assaulted and physically assaulted than were youth in the juvenile facilities. - A summary of the available evidence made by the Centers for Disease Control concluded that transfer to the adult system typically increases rates of violence among those who were transferred. Based on this review, the Task Force recommended against the transfer of juveniles to the adult criminal justice system for the purpose of reducing violence.

reforms of expert testimony have been proposed

- the federal courts do not permit testimony on the "ultimate issue" of insanity in forensic cases. -Most authors and sources of authority suggest that partisanship in expert witnesses should be reduced or eliminated entirely. But there are a few who do not. - Other suggestions have involved reducing the overly adversarial nature of expert testimony by limiting the number of experts on a given topic, requiring that the experts be chosen from an approved panel of individuals reputed to be objective and highly competent, and allowing testimony only from experts who have been appointed by a judge rather than hired by one of the opposing attorneys. -Although these changes would appear to reduce the "hired gun" problem, it is not clear which experts would belong on an approved list, or whether being appointed by a judge ensures an expert's impartiality. Furthermore, some research suggests that jurors might already be inclined to discounted testimony of experts whom they perceive to be "hired guns" because of the high fees such experts are paid and their history of testifying frequently

Juvenile Transfer

-A "get tough" approach was adopted in the attempt to decrease the rate of juvenile offending. One aspect of this "do the crime, do the time" philosophy involved expansion of ways in which adolescent (under 18 years old) offenders could be transferred (also called certified or waived) into criminal court. -Two of the most important are public safety and treatment needs and amenability. Another criterion often used is sophistication-maturity. Those evaluating a juvenile for a possible transfer must focus on the risk of future offending, the interventions needed to reduce this risk, and the likelihood that the youth will respond favorably to such interventions. The extent to which a juvenile is mature—cognitively and psychosocially—and the degree to which he/she is "adult-like" in their criminal thinking and behavior can both affect their response to interventions. -Assessing a youth being considered for transfer is a forensic evaluation. It involves a legal question that will be answered by the judge, just as competence does. With juveniles, this means that evaluators must pay particular attention to school and family functioning, often by obtaining school records and conducting interviews of family members. Substance abuse is another very important risk factor for offending; - -Whether intervention will help a particular youth to desist from offending may be judged partly from the individual's expressed motivation, capacity to admire and respect authority figures, and responses to previous interventions -Most still use the age of 14 or 15. There are several justifications for transferring an adolescent into the criminal system: (1) a charge of homicide; (2) a charge of other specific violent felonies (e.g., sexual assault, armed robbery, aggravated battery); or (3) a history of prior juvenile offending, suggesting a failure to respond to interventions provided by the juvenile system. -In addition, some states have a policy involving "once an adult, always an adult," under which any adolescent convicted (or even tried) in criminal court will be charged in criminal court for future offenses, regardless of their nature or that individual's age.

How Often Is the Plea Used, and How Often Is It Successful?

-A survey of the use of the insanity defense in eight states between 1976 and 1985 found that although the public estimated that the insanity defense was used in 37% of the cases, the actual rate was only 0.9%. - -defendants in those states, over a 10-year period, entered an insanity plea in 0.9% of felony cases and were successfully acquitted as NGRI in 22.7% of the cases in which this plea was entered. When New Jersey, Ohio, Washington, and Wisconsin are also considered within this group, the overall plea rate is .93% and 26.3% of those insanity pleas succeed . - The findings reported in these studies suggest that of the nine insanity pleas raised in every 1,000 criminal felony cases, about two will be successful. They received at least partial data from 36 states. The median number of insanity acquittals per state per year was 17.7. • California and Florida had the highest annual averages (134 and 111, respectively). • New Mexico (0.0) and South Dakota (0.1) had the lowest annual averages. • Most of the acquittals were for felonies rather than misdemeanors

Results of Competence Evaluations

-About 70% of the defendants referred for evaluation are ultimately found competent to stand trial when very rigorous examinations are conducted, the rate of defendants found competent approaches 90%. -Judges seldom disagree with clinicians' decisions about competence, and opposing attorneys often will stipulate (agree without further examination) to clinicians' findings -in a study judges and prosecutors agreed that the expert's ultimate opinion on the legal issue was one of the three most important pieces of information the expert could provide. -Another study Results showed that judges (1) consider clinicians' ultimate opinion to be an essential component of reports, (2) regard forensic and psychological testing as valuable, (3) seek similar but not identical characteristics in juvenile and adult competence evaluations, and (4) consider opinions about maturity to be an important component of competence evaluations in juvenile court. this may suggest that mental health professionals exert great—perhaps excessive—influence on this legal decision. -investigators report relatively high percentages of serious mental illness, lower intelligence, and more problems with certain aspects of memory among incompetent defendants, as well as co-occurring substance use disorder, unemployment, and homelessness Hospitalized incompetent defendants were more likely to have been diagnosed with schizophrenia, and more likely to have a history of prior mental health treatment as well as be single, unemployed, poorly educated, and perform poorly on specific competence assessment instruments -If a defendant referred for a competence evaluation is adjudicated competent to stand trial, the legal process resumes, and the defendant again faces the possibility of trial or disposition of charges through plea bargaining.

civil commitment

-All 50 states and the District of Columbia have civil commitment laws that authorize the custody and restraint of persons who are a danger to themselves or others or who are so gravely disabled that they cannot care for themselves. This restraint is usually accomplished by a compulsory commitment to a mental hospital. - Beginning around 1970, commitment proceedings began to be reformed, resulting in more legal rights for the mentally ill to resist compulsory commitment. A key case in this reform movement was O'Connor v. Donaldson (1975), in which the Supreme Court held that mental illness and a need for treatment were insufficient justifications for involuntarily committing mentally ill persons who were not dangerous. Similar limits on involuntary hospitalizations were upheld by the Supreme Court in the 1990s (e.g., Foucha v. Louisiana, 1992). The standard for commitment changed from mental illness combined with a need for treatment, to mental illness that is associated with dangerousness or a grave lack of ability to care for oneself. -It has resulted in fewer public hospital beds for mental health treatment, and shorter hospital stays. Exclusive concern with rights can sometimes leave patients without adequate care, housing, or the effective psychiatric treatment that can be provided in some hospitals. . As a consequence, some individuals have not had access to adequate treatment in either hospitals or in the community during these decades

rationale for insanity defense

-Allowing a criminal defendant to plead not guilty by reason of insanity reflects a fundamental belief that a civilized society should not punish people who do not know what they are doing or are incapable of controlling their conduct. Thus, the state must occasionally tell the victim's friends and family that even though it abhors the defendant's acts, some offenders do not deserve punishment. -Before it can do that, however, a judgment must be made about whether such persons were responsible for their actions. What is the legal standard for insanity? There is no single answer. The legal standards that define criminal responsibility vary from state to state, but in all states, the defendant is initially presumed to be responsible for his or her alleged offense. Therefore, if pleading insanity, defendants must present some evidence that would rebut the initial presumption of criminal responsibility in their case. A related legal issue is the assessment of mens rea, or the mental state of knowing the nature and quality of a forbidden act. To be a criminal offense, an act not only must be illegal but also must be accompanied by the necessary mens rea, or guilty mind.

Capital Sentencing Evaluations

-Although mental health professionals are involved in many aspects of the legal process, none has more implication for a defendant's life than capital sentencing evaluations, which have been described as literally "a life or death matter" (Satterwhite v. Texas, 1988, p. 1802). -The U.S. Supreme Court, in Eddings v. Oklahoma (1982), held that a trial court must consider any potentially mitigating information—evidence that argues against a death sentence. Mitigating factors are defined as "... any aspect of a defendant's character or record, or any of the circumstances of the offense that the defendant proffered as a basis for a sentence less than death" -. Evaluators must consider information about a defendant's physical, cognitive, social, and developmental history. Understanding, judgment, impulsivity, and values are influenced by developmental, cognitive, neuropsychological, cultural, community, situational, and other life influences, and it is important to consider these dimensions as part of a capital sentencing evaluation. Some jurisdictions also consider the question of a defendant's future risk to society, and forensic clinicians often evaluate and testify about these risks. Texas requires that the jury consider future risk in weighing a sentence of death - In addition to considering factors encompassing mitigation and future violence risk, clinical evaluations must also address the question of eligibility for capital sentencing if the defendant may be intellectually disabled, which would exempt the defendant from the death penalty, consistent with the Supreme Court decision in Atkins v. Virginia

Assessing Competence to Execute a Will

-Clinicians may also be asked to evaluate whether a person (called a "testator") was competent to execute a will; such competence is a requirement for the provisions of the will to be valid. Called testamentary capacity. -According to one study, situations that may raise concern about capacity to execute a will include the following: There is a radical change from a previous will (seen in 72% of cases); undue influence is alleged (56% of cases); the testator has no biological children (52% of cases); the testator executed the will less than a year prior to death (48% of cases); and the testator suffered from comorbid conditions such as dementia (40% of cases), alcohol abuse (28% of cases), or other neurological/psychiatric conditions (28% of cases) -The legal standard for testators' competence to execute a will is derived from Banks v. Goodfellow (1870), in which the court held as follows: 1. Testators must know at the time of making their wills that they are making their wills. 2. They must know the nature and extent of their property. 3. They must know the "natural objects of [their] bounty." 4. They must know the manner in which the wills they are making distribute their property. - A person cannot be deemed incompetent to execute a will simply on the basis of the presence of a mental illness, unless there is clear evidence that the mental illness specifically interfered with the individual's ability to meet the standard set at the time the will was written. Assessment of this competence focuses on the individual's functional abilities at the time his or her will was written. -First, they recommend structuring the evaluation to conform to the associated legal elements. They suggest using the sources available (e.g., the testator, family, friends, records) to first determine the purpose of the will and why it was written at that time. -Second, they recommend gathering information about the testator's property holdings, which may include asking questions about occupation and salary, tangible property, and intangibles (e.g., bank accounts, investments). -Third, the clinician should determine the testator's "values and preferences" to better understand the family dynamics. Finally, Melton and colleagues recommend that clinicians assess the general consequences of the dispositions outlined in the will. - One of the obvious difficulties in these types of evaluations is that the testator, the subject of the evaluation, is often deceased at the time the question of competence to execute the will arises.

Dangerousness and Risk Assessment

-Dangerousness is one of the central constructs of mental health law. Whether a person is now or could in the future be dangerous is an issue that underlies many decisions in our system of justice, including questions of civil commitment. -They actually merge three distinct constructs: (1) risk factors (variables associated with the probability that violence or aggression will occur), (2) harm (the nature and severity of predicted and actual aggression), and (3) risk level (the probability that harm will occur) -In some combination, these factors provide a major justification for involuntarily committing the mentally ill to hospitals. Dangerousness is the basis for requiring therapists to protect third parties from possible acts of violence against them by the patients of these therapists. It is also a reason for denying bail to certain defendants and the justification for hospitalizing defendant's after they have been found not guilty by reason of insanity. Some states also use future dangerousness as one factor a jury can consider when deciding whether to sentence a convicted murderer to life in prison or death by execution

Domestic Violence Courts

-Domestic violence court personnel work with community-based agencies to strengthen the entire community's response to domestic violence. Estimates of the number of domestic violence courts in the United States range from 160 to 208, to more than 300. -. Like other specialty courts, domestic violence courts involve judges and staff specially trained in the relevant domain, coordination among community resources, and close monitoring of the perpetrator both before and after case disposition. But domestic violence courts start from the premise that offenders' behavior is learned rather than rooted in a treatable addiction or illness. -Therefore, court proceedings are primarily adversarial rather than therapeutic. They often involve both victim and offender attempting to reach agreement on protection orders. The needs of children are considered, and co-occurring child abuse and neglect are addressed. Although few studies have evaluated the effectiveness of domestic violence courts, including their ability to reduce recidivism, victims, perpetrators, advocates, and judges have generally reacted positively. Both victims and perpetrators express satisfaction with the court processes and outcomes. - Compared with traditional courts, domestic violence courts process cases faster and have higher rates of guilty pleas. In addition, perpetrators are more likely to comply with court-ordered conditions

Assessment in Custody Disputes

-First, the emotional stakes are extremely high, and both parents are often willing to spare no expense or tactic in the battle. The children involved are usually forced to live in an emotional limbo in which they do not know in whose home they will be residing, where they will be going to school, or how often they will see each parent. -Second, a thorough custody evaluation requires that the clinician evaluate the children, both parents, and others who have interacted with the child, such as relatives, teachers, and family health care providers. Often, not all the parties agree to be evaluated or do so only under coercion, resulting in a lengthy and sometimes tense process. An alternative arrangement—having the court order the evaluation and designate a neutral expert, with both parties agreeing to this appointment—can help to reduce this perception of bias. -Third, to render a valuable expert opinion, a clinician must be quite knowledgeable. Finally, child custody evaluations are often highly adversarial, with each parent trying to expose all the faults of the other. - Clinicians who conduct custody evaluations must be prepared for challenges to their evaluation methods, scholarly competence, and professional ethics. - There are three major approaches to appointing evaluators: (1) a judge can appoint one clinician to conduct a custody evaluation that is available to all the parties, (2) each side can retain its own expert to conduct independent evaluations, or (3) the litigants can agree to share the expenses of hiring an expert to conduct one evaluation. Historically, most evaluators have preferred either the first or the third option because of the pressures that result when separate experts are hired by each side

The Future of Community-Based Alternatives to Prosecution

-For conservative legislators who focus on public safety and cost, there is growing evidence that alternative approaches such as specialized police responding and problem-solving courts reduce the risk of criminal offending, and also contain criminal justice costs (although they may shift costs to systems that deliver rehabilitation services). - For progressive legislators who might be inclined to emphasize rehabilitation, there is more specific treatment and rehabilitation associated with such alternative approaches. But such approaches have grown partly because the original areas of rehabilitation need (e.g., substance abuse, mental health) have been expanded to include a number of other areas as well.

what happens if found incompetent?

-For crimes that are not serious, the charges are occasionally dropped, sometimes in exchange for requiring the defendant to receive treatment. In other cases, however, the defendant is hospitalized to be treated for restoration of competence, which, if successful, will result in the defendant proceeding with disposition of charges. - the practice of providing long periods of hospitalization for defendants incompetent for trial was limited in 1972 when the U.S. Supreme Court decided the case of Jackson v. Indiana. This decision held that defendants who had been committed because they were incompetent to stand trial could not be held "more than a reasonable period of time necessary to determine whether there is a substantial probability that [they] will attain that capacity in the foreseeable future." As a result of this decision, the length of time an incompetent defendant can be confined is now limited, and many states have passed statutes that "limit" such hospitalization to a period not to exceed the maximum sentence that could have been imposed if the defendant were convicted of charges. -One study evaluated an experimental group treatment administered to a sample of incompetent defendants sent to one of three Philadelphia facilities. In addition to receiving psychiatric medication, defendants assigned to these special treatment groups watched videotapes and received special instructions on courtroom procedures. They also discussed different ways of resolving problems that a defendant might face during a trial. A matched control group received treatment for their general psychiatric needs, but no specific treatment relevant to incompetence. -Following their treatment, defendants participating in the special competence restoration group showed significant increases in their assessment scores compared to the controls. In addition, hospital staff judged 43% of the experimental subjects competent to stand trial after treatment compared to 15% of the control subjects. Other research, however, indicates that providing general legal information is about as effective as highly specialized programs focusing on individual deficits. In general, most defendants have their adjudicative competence restored, usually with about six months of treatment and the most important intervention for most defendants is the administration of appropriate psychotropic medication

The Scope of Forensic Psychology

-Forensic psychologists use knowledge and techniques from psychology, psychiatry, and other behavioral sciences to answer questions about individuals involved in legal proceedings. In most cases, forensic psychological assessment is conducted by clinical psychologists or clinical neuropsychologists - Forensic psychology is officially recognized as a specialty by the American Board of Professional Psychology and by the American Psychological Association. - The research and clinical literature on forensic practice have increased dramatically. It appears likely that growth in this field will continue. There are several reasons for this. -First, mental health experts have expertise in a variety of areas relevant to litigation. As scientists learn more about human behavior, attorneys will find new ways to use this information in various legal proceedings. -Second, forensic psychology is flourishing because the law permits, and even encourages, the use of expert testimony in a host of areas. Expert testimony is used in all these areas, but psychological topics have enjoyed particular prominence. - Finally, expert testimony by forensic psychologists thrives because it can be very lucrative. If one party in a lawsuit or criminal trial hires an expert, the other side usually feels pressure to respond with their own expert. -In general, a qualified expert can testify about a topic if such testimony is relevant to an issue in dispute and if the usefulness of the testimony outweighs whatever prejudicial impact it might have. If these two conditions are satisfied—as they must be for any kind of testimony to be admitted—an expert will be permitted to give opinion testimony if the judge believes that "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue"). The U.S. Supreme Court ruled in the 1993 case of Daubert v. Merrell Dow that federal judges could decide whether expert testimony has a sufficiently relevant and reliable scientific foundation to be admitted into evidence. For opinions offered by behavioral scientists and mental health experts, the Daubert standard suggests that admissible expert testimony should be grounded in scientifically based methods and theory

Assessment in Workers' Compensation Claims

-In a study investigators analyzed archival MMPI-2s produced by 192 women and 14 men involved in litigation related to alleged workplace sexual harassment and discrimination. Among the women, 28% produced a profile that was within normal limits. The remaining profiles fell into four distinctive clusters representing different approaches to the test items. For example, the first cluster combined a defensive unwillingness to acknowledge problems with evidence of depression and physical complaints. The second cluster involved responding that was neither exaggerated nor defensive, and also featured evidence of depression and physical problems. Both the third and fourth clusters were marked by exaggeration of problems and reports of generalized psychopathology. -One reason for the lack of distinguishing patterns might be that regardless of the injury or the stressor, most people manifest psychological distress through a mixture of physical complaints and negative emotions such as anxiety, depression, and feelings of isolation. -We now turn to the question of whether psychological tests can distinguish between claimants with genuine disorders and those who are exaggerating. The MMPI-2 and MMPI-2-RF contain sets of items that are sometimes used to assess the test-taking attitudes of a respondent. Other tests such as the Validity Indicator Profile and the Test of Memory Malingering have been developed to detect malingering. The typical case of a person trying to exaggerate or fake mental disorder involves the individual answering many items in the "bad" direction, thereby attempting to look as disturbed as possible. However, the strategy might be more complicated in the case of a person who is faking or exaggerating a disorder in a workers' compensation case. Their motivation involves a combination of faking good and faking bad. -A special validity scale composed of MMPI-2 items that tap this simultaneous fake-good/fake-bad strategy has been developed and has had some success in distinguishing between genuine and faked psychological injury claims , although others have argued that the scale is more likely to represent general maladjustment than malingering. One study included a sample of MMPI-2s of worker's compensation and personal injury cases to consider the relationship of various indicators of exaggeration. The investigators concluded that malingering's may take the form of inconsistent responding as well as symptom exaggeration, with patients evaluated at the request of plaintiff attorneys showing a seemingly greater degree of symptom exaggeration and inconsistent responding than did those referred by defense counsel

Community Courts.

-In contrast to drug courts and mental health courts, each of which is characterized by jurisdiction over a very specific group, a community court is neighborhood-focused and designed to address local problems such as vandalism, prostitutions, shoplifting, vagrancy, and the like. -Community courts use problem-solving and strive to create relationships with outside stakeholders such as residents, merchants, churches, and schools. Participants see them as fairer than traditional courts, and give them high marks in achieving goals such as working productively, assigning useful community service, and treating participants equally - Perhaps one reason for such favorable ratings has been the use of alternative sanctions by community courts; they are less likely to incarcerate individuals as part of disposition of charges -Although such courts are slightly more expensive when measured by cost per case, they are also associated with higher levels of compliance with sanctions and greater reduction of particular outcomes

Competence to Refuse the Insanity Defense.

-In some cases, they have suggested that society's stake in punishing only mentally responsible persons requires the imposition of an insanity plea even on unwilling defendants (Whalen v. United States, 1965). -Other decisions (Frendak v. United States, 1979) use the framework of competence to answer this question—if the defendant understands the alternative pleas available and the consequences of those pleas, the defendant should be permitted to reject an insanity plea. This latter approach is followed in most courts. -This question was at the heart of the prosecution of Theodore Kaczynski, a reclusive mathematician who was dubbed the "Unabomber" for sending a series of mail bombs to universities and airlines between 1978 and 1995. Although the consensus of several experts was that Kaczynski suffered from paranoid schizophrenia, he adamantly refused to let his attorneys use an insanity defense, arguing that he did not want to be stigmatized, in his words, as "a sickie."

Trials in Which the Insanity Plea Failed.

-In the Jeffrey Dahmer case, jurors rejected a plea of insanity as a defense against murder charges. Dahmer admitted killing and dismembering 15 young men in Milwaukee over about a 10-year period, but his attorneys, Gerald Boyle, argued that Dahmer was insane at the time—a sick man, not an evil one. -After listening to two weeks of evidence, including taped interviews in which Dahmer explained how he had dismembered his victims and expert testimony about Dahmer's mental condition, the jury ruled, by a 10-2 margin, that Jeffrey Dahmer was sane. -. Wisconsin defines insanity using the Brawner rule; consequently, to have found Dahmer insane, the jury would have had to conclude that he suffered a mental disorder or defect that made him unable either to appreciate the wrongfulness of his behavior or to control his conduct as required by the law. The jury rejected both conclusions, perhaps because of evidence that Dahmer was careful to kill his victims in a manner that minimized his chances of being caught. This cautiousness suggested that he appreciated the wrongfulness of his behavior and could control it when it was opportune to do so

The Insanity Defense Reform Act

-In the wake of the trial of John Hinckley, Jr., who attempted to assassinate President Ronald Reagan, the U.S. Congress enacted the Insanity Defense Reform Act (IDRA) in 1984. The law modified the existing insanity defense (eliminating the "volitional" prong and retaining the "cognitive" prong), with the expectation that fewer defendants would be able to use it successfully. - it also changed the insanity defense process as follows: 1. It prohibited experts from giving ultimate opinions about insanity (i.e., whether the defendant was insane at the time of the crime). Although this prohibition may have little effect on jurors, reformers believed it would prevent expert witnesses from having excessive influence over the jury's decision. 2. It placed on the defendant the burden to prove insanity, replacing the previous requirement that the prosecution must prove a defendant's sanity

What Happens to Defendants Who Are Found NGRI?

-Many mistakenly assume that defendants who are found NGRI go free. -Steadman and Braff (1983) found that defendants found NGRI in New York had an average hospital stay of three years (longer for those who had committed more serious or violent offenses). . The average length of confinement for all NGRI individuals was 28.7 months. These data describe only individuals who were hospitalized and released—they cannot tell us about individuals who were hospitalized but not released -Some states use a procedure known as conditional release, in which persons found NGRI are released to the community (following a period of hospital confinement) and are monitored and supervised by mental health personnel. -about 60% of these individuals were conditionally released within five years of their confinement . Of those released, the median period of hospital confinement was 3.6 years for violent offenders and 1.3 years for those charged with less serious offenses -How Dangerous Are Defendants Found NGRI? -nearly half (47%) were rehospitalized, a minority of the patients (19%) were rearrested or had committed a new crime, and about a fourth of the patients (24%) were reintegrated into the community without difficulty

Homeless Courts

-People living on the streets are frequently cited for public nuisance offenses such as public intoxication and loitering; they often fail to appear when summoned to court. As a result, they are unable to access vital services such as housing, employment opportunities, and public assistance. -Homeless courts were started in southern California in the late 1980s. They are designed to assist marginalized individuals, address the underlying problems that resulted in their homelessness, and reintegrate these people into society. Homeless "court" is typically held in shelters or agencies that serve this population. Rather than being fined or taken into custody, participants are given alternative sentences—including assignment to programs and activities such as employment training, counseling, Alcoholics Anonymous meetings, and volunteer work. = -Meeting in a refurbished Catholic school, the judges, prosecutors, and defenders in the Red Hook community court see their goal as improving the quality of life for citizens. They know the people of the community. They also make it a point to know the offenders and to make sure the offenders know them. - The result is a reduction in low-level crime, and decreased recidivism by those under the jurisdiction of this problem-solving court. Some community courts also aim to reduce homelessness by dealing with landlord- tenant problems, and addressing some of the underlying causes of homelessness—mental illness, poor job skills, and language barriers

Insanity and Terrorism

-Terrorism is very much a part of contemporary life. -This is true even in the United States, which experiences fewer acts of religious or ideological violence than many other countries. -When behavior is motivated by religious ideology and cultural belief, it would not be appropriate to describe it as a good fit with an insanity defense.

Psychological Damages to Civil Plaintiffs

-The damages a person suffers from a tort can involve the destruction of personal property, physical injuries, and/ or emotional distress. Historically, the law has always sought to compensate victims who are physically hurt or sustain property losses, but it was reluctant to allow compensation for emotional distress. It was required that a physical injury has accompanied the psychological harm or that a plaintiff who was not physically injured was at least in a "zone of danger." More are abandoning the "zone of danger" restriction and allowing recovery for psychological harm suffered when the individual was not within the zone of danger -boat that sank and survivors were compensated because they had PTSD from it -In recent years, the courts have progressed to a view in which psychological symptoms and mental distress are more likely to be compensated regardless of whether the plaintiff suffered physical injuries. Two types of "purely" psychological injuries are now claimed in civil lawsuits: those arising from "negligent" behavior and those arising from "extreme and outrageous" conduct that is intended to cause distress. In the former type of case, plaintiffs are often allowed to sue for psychological damages if they are bystanders to an incident in which a loved one is injured (e.g., a parent sees her child crushed to death when a defective roller coaster—on which the child was riding—derails). -In the case of intentional torts causing psychological distress, a plaintiff must prove that a defendant intentionally or recklessly acted in an extreme and outrageous fashion (sometimes defined as "beyond all bounds of decency") to cause emotional distress. In addition, the plaintiff must prove that the distress is severe. -What kinds of behavior might qualify? Courts have found that a debt collector who was trying to locate a debtor acted outrageously when he posed as a hospital employee and told the debtor's mother that her grandchildren had been seriously injured in a wreck and that he needed to find the debtor to inform him of this fact (Ford Motor Credit Co. v. Sheehan, 1979). -In recent years, an increasing number of cases have dealt with psychological injuries resulting from the tort of sexual harassment, usually in the workplace. Plaintiffs can seek both compensatory damages (payment for injuries suffered) and punitive damages (punishment of the company for its failure to respond properly to the misconduct)

Four Types of Commitment Procedure

-The law permits four types of civil commitment: (1) emergency detention, Patients committed on an emergency basis can be detained for only a specified length of time—usually two or three days—before a review takes place. At that time a preliminary hearing must be held before the patient can be confined any longer. (2) voluntary inpatient commitment, A person may volunteer to enter a psychiatric hospital, although he or she still must meet the criteria for hospitalization but even those who are being hospitalized "voluntarily" may feel pressure from family, mental health personnel, or the legal system to enter the hospital. Individuals who have been provided with more information and given the chance to express their views report feeling less coercion. (3) involuntary inpatient commitment, requires a court order. The criteria for obtaining an involuntary civil commitment vary from state to state; in general, however, the person must be mentally ill and must also be dangerous to self and others, or so gravely disabled as to be unable to provide for his or her own basic needs. To obtain an involuntary commitment, the concerned persons must petition the court for a professional examination of the individual in question. A formal court hearing usually follows the examination. In most states, the hearing is mandatory, and persons whose commitment is sought can call witnesses and have their lawyer cross-examine witnesses who testify against them. (4) outpatient commitment. Emergency detention is the means by which most individuals are initially admitted to hospitals. Is available in nearly all states and allows a patient to be mandated to receive treatment in an outpatient setting, such as a community mental health center, rather than in a hospital. Outpatient commitment often involves conditional release from a hospital. That is, formerly hospitalized patients are ordered to continue treatment in the community. It may also be used prior to hospitalization, as an alternative to inpatient commitment. One study that those released from involuntary hospitalization on outpatient commitment were more likely to use outpatient and residential mental health services and psychotropic medication. However, outpatient commitment should not simply be used as a mechanism for ensuring compliance with treatment if the individual does not meet the commitment criteria (which typically have a public safety component) -A police officer, a mental health professional, or sometimes a private citizen can initiate involuntary detention of another person. Usually, the cause is actual or anticipated harmful behavior by the patient either against self (e.g., attempted suicide) or against others. An examination is performed by a physician or a qualified mental health professional.

biases expert witnesses might have

-The more common problem that may influence many experts, however, is what has been called "allegiance bias" or "retention bias." The question of whether experts can remain impartial and accurate without regard to which side has retained them has been explored recently through research. -These influences can impair the impartiality and accuracy of evaluations and testimony presented by forensic clinicians, particularly in the context of an adversarial system. ■ Representativeness—overemphasizing evidence that resembles a typical representation of a prototype (e.g., making attributions about an individual's motivation because that individual resembles a "drug addict" in many ways); ■ Base rate neglect—judging the likelihood of an outcome without considering information about the actual probability of this outcome, as conveyed by base rates (e.g., predicting a serious act of violence by someone who shows predictors consistent with a group that rarely behaves this way); ■ Availability—overemphasizing the probability of occurrence when similar instances are easy to recall (e.g., from a recent, highly publicized case); ■ Confirmation bias—selectively gathering and interpreting evidence that confirms a hypothesis while ignoring evidence that might disconfirm it ■ WYSIATI (what you see is all there is)—organizing activated information to derive the most coherent "story" while leaving out nonactivated information (e.g., by focusing on information that has been "activated," perhaps via confirmation bias, and consequently constructing an account that is excessively consistent because it excludes contradictory information); and ■ Anchoring—information encountered first is the most influential. -One such debiasing strategy is to conduct forensic evaluations that are guided by foundational principles, and basing expert testimony on the results of such evaluations. Another is to conduct training, and periodically review one's professional performance, by reviewing whether the biases described in the last paragraph are affecting performance. A third debiasing strategy, aimed more at the public perception of experts' impartiality and accuracy, is to avoid public comment regarding ongoing cases, particularly in social media formats (e.g., Twitter) in which the depth and nuance of the comment is severely limited. -A more modest reform would involve simply banning any reference to witnesses as providing expert testimony, a term that suggests that jurors should give it extra credence. Instead, judges would always refer— in the presence of juries—to opinion testimony or witnesses. I -n addition to deleting any mention of expert testimony, federal judge Charles Richey (1994) recommended that juries be read a special instruction before hearing any opinion testimony in order to reduce its possible prejudicial impact

Drug Courts.

-The most common kind of specialty court is drug court, created to deal with offenders whose crimes are related to addiction. Drug courts developed in response to an increase in antidrug law enforcement efforts and stiffer sanctions for drug offenders during the 1980s and 1990s. - By the end of 2014, the National Institute of Justice estimated that there were more than 3,000 drug courts of various kinds operating throughout the 50 states - --Drug courts divert cases from the traditional criminal justice system and link drug-addicted offenders with treatment programs and extensive supervision. In exchange for successful completion of the program, the court may dismiss the original charge, reduce or set aside a sentence, assign some lesser penalty, or make a combination of these adjustments. -The ultimate goal, in addition to improving the lives of drug-addicted individuals, is to reduce the number of drug offenders in prisons. - A meta-analysis—a statistical technique that combines the results of individual studies with similar research hypotheses—of 60 studies that compared a treatment condition to a control condition, and that included at least one measure of criminal behavior as an outcome measure, concluded that drug courts have a significant, though modest, effect on recidivism. Offenders assigned to drug court had a 45.5% recidivism rate, while the comparison group had a 54.5% recidivism -The most successful programs were those that excluded violent offenders, worked with and treated offenders who had not yet entered a plea, and employed well-qualified and competent staff who ensured that the program was delivered as designed and who interacted positively with participants. -Problem-solving courts have a particular appeal within communities, as judges often interact with treatment providers and advocacy groups in a way that is not usually seen in traditional courts. Judges like Wesley Saint Clair often play a much more active role, setting aside judicial restraint and impartiality in favor of more direct involvement in the interventions and responses of problem-solving court participants.

Veterans' Courts

-The most recent version of specialty court—veterans' courts—was launched in 2008.There are now dozens of such courts across the country. -. Approximately one-third of them suffer from posttraumatic stress disorder (PTSD), traumatic brain injury, depression, or other mental illness, and one-fifth are addicted to drugs or alcohol. Sadly, only about half of the veterans with PTSD or depression have sought help, and of those, only about half received satisfactory care - Given their training in the military to react immediately to any perceived threat, it is not surprising that thousands of returning veterans have reacted impulsively and violently in heated situations. Sometimes, as a result, they have been arrested and charged with serious criminal offenses, including child abuse, sexual assault, and homicide. -In a typical veterans' court, a district attorney may opt to defer prosecution or offer a plea bargain to a reduced charge if it is clear that the offense was related to the veteran's disability and the veteran agrees to seek treatment. Veterans who plead guilty to a nonviolent felony or misdemeanor are teamed with volunteer veteran mentors who ensure that the offender adheres to a strict regimen of counseling, personalized rehabilitation programs, and court appearances. Judges may issue alternative sentences that require offenders to seek psychological treatment. By completing the required program, an individual may avoid going to prison. - There are yet very few studies of their effectiveness. The sparse data that exist suggest that offenders who are diverted to veterans' court are less likely to reoffend than those whose cases go through the traditional criminal justice system A recent study included 86 veterans in an Ohio jail diversion and trauma recovery treatment court who were interviewed at baseline, and 6- and 12-months later to determine if the program led to improvements in jail recidivism, psychiatric symptoms, quality of life, and recovery. Results suggested that participants experienced significant improvement in various outcomes relative to baseline (PTSD, depression, substance abuse, overall functioning, emotional well-being, relationships with others, recovery status, social connectedness, family functioning, and sleep). However, without a control or comparison group, we do not know whether this improvement was significantly better than other approaches to processing participants in the criminal justice system

problem solving courts

-The premise of specialty courts is that the legal system should help troubled individuals cope with the chronic problems that brought them into contact with the criminal justice system in the first place. This collaborative, non-adversarial nature of specialty courts, in which judges work side by side with mental health professionals, community agencies, and offenders themselves, focuses more on meeting the ongoing needs of participants than on punishing them. This approach, in which the law is used as a vehicle to improve people's lives, is called therapeutic jurisprudence -ll specialty courts involve a few common elements, including immediate interventions such as drug or alcohol counseling, frequent court appearances in a nonadversarial context, an interdisciplinary team approach, and a set of clearly defined objectives -Working together with mental health providers, attorneys, and probation officers, judges in these courts become social workers and cheerleaders as much as jurists. Rather than impose punishment, they offer opportunities for people to deal with their addictions, anger, and disputes. Those who comply with the judges' orders may have their sentences reduced or dismissed. - Although some aspects of these courts are traditional—for instance, judges wear robes—many characteristics of specialty courts are unconventional. For example, the people who appear in court are often called clients rather than defendants. These "clients" are able to speak directly to the judge, rather than communicating through their attorneys. Judges often have a great deal of information about clients, and may interact with them over a number of years.

Raising the Issue of Competence

-The question of a defendant's competence can be raised at any point in the criminal process, and it can be raised by the prosecutor, the defense attorney, or the presiding judge. Once the question of incompetence is raised, the judge will order an evaluation of the defendant if a "bona fide doubt" exists that the defendant is competent. Judges consider the circumstances of each case and the behavior of each defendant when making this determination. However, if the question of competence is raised, an examination will usually be conducted. Because it is relatively easy to obtain such evaluations, attorneys often seek them for reasons other than a determination of competence. -Competence evaluations are used for several tactical reasons: to obtain information about a possible insanity defense, to guarantee the temporary incarceration of a potentially dangerous person without going through the cumbersome procedures of involuntary civil commitment, to deny bail, and to delay the trial as one side tries to gain an advantage over the other -Defense attorneys have questions about their clients' competence in up to 15% of felony cases (approximately twice the rate for defendants charged with misdemeanors); in many of these cases, however, the attorney does not seek a formal evaluation

what if still not competent after treatment?

-The real dilemma for IST defendants occurs when treatment is not successful in restoring competence and holds little promise of success in the future. At this point, all options are problematic. Theoretically, the previously-described Jackson ruling bars the indefinite confinement of an individual adjudicated incompetent to stand trial. . -Once such a defendant has been hospitalized for this period, however, he or she can be found "unrestorable incompetent." Research indicates that the major influences associated with unrestorable incompetence are (1) chronic severe mental illness associated with long-term hospitalization and poor response to medication, and (2) cognitive limitations (e.g., intellectual disability, dementia). - Typically, unrestorable incompetent defendants are committed to a hospital through involuntary civil commitment proceedings. The state must show that the person is mentally ill and either imminently dangerous to self or others or so gravely disabled as to be unable to care for himself or herself. Despite the ruling in the Jackson case, some states simply continue to confine incompetent defendants for indefinite periods. - -Although this "solution" might appease the public, we believe it jeopardizes defendants' due process rights and results in lengthy periods of punishment (disguised as treatment) without a conviction. Several alternative procedures have been proposed to resolve this problem, including abolishing the IST concept altogether allowing defendants to seek trial continuances without going through an elaborate evaluation, or waiving their right to be competent under certain circumstances. -To date, however, there has been no effectively-implemented alternative to the Constitutional requirement that a defendant is competent to stand trial in order to proceed—and regain competence if adjudicated IST.

approaches to juvenile transfer

-The state legislature in a given jurisdiction can determine that certain offenses allegedly committed by an adolescent must be filed directly in adult court (. For example, a state legislature may pass a law dictating that certain serious felony charges (e.g., armed robbery, sexual battery) be prosecuted in criminal court if the defendant is over a certain age. This approach to transfer has been called statutory exclusion. - A second approach to transferring juveniles to criminal court has been termed judicial waiver. When this procedure is used, the juvenile court judge uses discretion to decide whether the youth should be transferred to criminal court. In exercising judicial discretion regarding transfer, the judge typically considers statutorily specified influences such as the youth's risk to public safety, amenability to treatment, and maturity. Such factors can be evaluated by mental health professionals, and the results described in the report and in expert testimony, to help inform the judge in making this decision. -A third approach to juvenile transfer is called prosecutorial discretion, which requires prosecutors to decide whether cases are filed initially in juvenile or adult court. There are two other dispositional considerations for justice-involved youth. For those who are initially charged or transferred into criminal court, some states allow a motion to return to juvenile court. This is called reverse waiver, and was featured in 24 states as of 2009 -. Finally, the option of blended sentencing allows either a juvenile court to integrate criminal sentencing options into the disposition (14 states) or the criminal court to include juvenile placement in the disposition (18 states),

effects of custody arrangements

-There appear to be several advantages to joint custody arrangements. In a meta-analysis of 21 studies, Bauserman (1997) concluded that children in joint custody fared better than children in sole custody on a number of measures related to adjustment and interpersonal relations. Fathers benefited from joint custody because they had more frequent contact with their children. Joint custody was advantageous for mothers because it afforded them greater opportunity for courtship; as a result, these mothers re-partnered more rapidly than mothers with sole responsibility for their children, a situation that may be economically beneficial for the children -Some research has also addressed the impact of having one or both parents who are gay or lesbian on the subsequent adjustment of children in custody following a divorce or other ending of the parental relationship. Research to date provides no evidence that lesbian and gay parents differ from heterosexual parents in these domains. - . Researchers have also looked at the children of never-married parents. Based on this evidence, it appears that the most significant effects of divorce on children occur in the first year or two. Temporary behavioral changes are frequent, including problems in emotional regulation, disturbed sleep patterns, behavioral or academic problems, grief reactions, and loyalty conflicts. Most parents and children return to a behavior that is more typical for them after this one- to the two-year period - Both the well-being of the primary parent and the level of parental conflict are major factors influencing outcomes. Children from families in which the parents had a great deal of conflict seem to do better following divorce than do children from low-conflict families. Importantly, around 75% of children whose parents divorce will not experience significant developmental challenges or long-term negative effects of the divorce - It now appears that parents with joint physical custody do not differ in their cooperativeness or conflict from parents with sole physical custody. Indeed, the quality of the relationship between parents and children is more strongly associated with outcomes than are conflict and poor parenting, except when the conflict is extreme. -Risk factors: ■ stress of the initial separation ■ diminished parenting ■ loss of significant relationships (including extended family, e.g., grandparents), and friends ■ multiple moves ■ financial problems (the stress of which can affect parenting style or quality) ■ either parent becoming involved with a new partner - -Protective factors: ■ The custodial parent is competent and well adjusted -The noncustodial parent has regular and consistent contact and (particularly important) takes an active interest in the activities and school performance of the child ■ A good relationship between parent and child ■ The custodial parent has extended family support

The Guilty but Mentally Ill (GBMI) Verdict.

-These GBMI rules differ from state to state, but generally they give a jury the following verdict alternatives for a defendant who is pleading insanity: (1) guilty of the crime, (2) not guilty of the crime, (3) NGRI, or (4) GBMI. Typically, a judge will sentence a defendant found GBMI exactly as he or she would another defendant found guilty of the same offense. -In some jurisdictions, the GBMI-convicted individual starts his or her term in a hospital and then is transferred to prison after treatment is completed. In others, the individual simply receives treatment (if needed) while serving a prison sentence. However, actual GBMI statutes have not produced decreases in NGRI verdicts in South Carolina or Michigan. -One possible explanation for the lack of change in NGRI verdicts in states with GBMI statutes is that jurors do not understand the differences between the verdicts. . If regular insanity instructions are confusing to jurors, the GBMI verdict only adds to the confusion by introducing the very difficult distinction for juries to make between mental illness that results in insanity and mental illness that does not. -However, one mock jury study showed that the presence of a GBMI option makes it less likely that either a conviction or an NGRI acquittal will result In one Michigan study, 75% of GBMI offenders went straight to prison with no treatment. Overcrowding at hospitals in most states has impeded implementation of this part of the GBMI option. -, the Board can detect no difference in treatment or outcome for inmates who have been adjudicated as 'Guilty But Mentally Ill,' from those who have been adjudicated as simply 'guilty'"

When the Insanity Defense Is Used

-These investigators found that 22.5% of the insanity acquitters had been charged with murder and that 64% had been charged with crimes against persons (murder, rape, robbery, or aggravated assault). -. Steadman and colleagues (1993) reported that 67.4% of the insanity acquitters described in their study were diagnosed with a schizophrenic disorder and that another 14.9% were diagnosed with another major mental illness. They compared those who successfully employed the insanity defense with others who entered this plea but were nevertheless found guilty, and reported that 82% of the former group but only 38% of the latter group had been diagnosed with a major mental illness. 1. Although most NGRI defendants have a record of prior arrests or convictions, this rate of previous criminality does not exceed that of other felons 2. Most NGRI defendants come from lower socioeconomic backgrounds . 3. Most NGRI defendants have a prior history of psychiatric hospitalizations and have been diagnosed with serious forms of mental illness, usually psychosis 4, Most NGRI defendants have previously been found incompetent to stand trial 5. Although most studies have concentrated on males, one study on female defendants found NGRI in Florida described them as having similar socioeconomic, psychiatric, and criminal backgrounds to their male NGRI counterparts. Women were charged with more serious offenses, were older than their male counterparts, and were hospitalized for a shorter period of time.

Empirical Research Relevant to Varying Insanity Defense Rules

-What little research has been conducted on the Insanity Defense Reform Act suggests that it does not accomplish either what its proponents envisioned or what its critics feared. At least in mock jury studies, verdicts do not significantly differ regardless of whether the jurors have heard IDRA instructions, Brawner instructions, or no instructions -jurors only 51% correct on a series of questions testing their comprehension of instructions regarding the M'Naghten rule -study: : (1) severely mentally disordered (SMD), characterized by extreme, chronic, uncontrollable mental illness and/or intellectual disability that impair the defendant's ability to function in society; (2) morally insane (MI), typified by symptoms of psychosis and psychopathy, a categorization used to represent a malevolent, detached, and unpredictably violent offender; or (3) mental-statecentered (MSC), describing a defendant who suffered from varied, but clearly supported, impairments in his mental state at the time of his offense. Jurors who held SMD- or MI-like prototypes made up the vast majority of the sample (79%), and they tended to believe that the insanity defense was frequently raised, was easily abused, and jeopardized public safety. By contrast, those jurors who held MSC-like prototypes (21%) were less likely to perceive the insanity defense as unjust and tended to believe that the constitutional rights ascribed to defendants were necessary components of the legal process

what is a tort

-When one party is injured by the actions of a second party, the injured individual can sue the second party to recover monetary damages as compensation for the injury. This action is covered by an area of civil law known as torts. A tort is a wrongful act that causes harm to an individual. Tort law, on the other hand, provides a mechanism to remedy the harms that individuals have suffered from wrongful acts by another party. As illustrated by the O. J. Simpson case, both criminal punishment and civil remedies can be sought for. -First, torts occur in situations in which one individual owes a duty, or has an obligation, to another. For instance, a physician has a duty to treat patients in accordance with accepted professional standards, and individuals have a duty not to harm others physically or psychologically. -Second, a tort typically requires proving that one party breached or violated a duty that was owed to other parties. The breached duty can be due to negligence or intentional wrongdoing. Negligence is behavior that falls below a standard for protecting others from unreasonable risks; it is often measured by asking whether a "reasonable person" would have acted as the civil defendant acted in similar circumstances. Intentional behavior is a conduct in which a person meant the outcome of a given act to occur. -Third, the violation of the duty must have been the proximate cause of the harm suffered by a plaintiff. A proximate cause is one that constitutes an obvious or substantial reason why a given harm occurred. It is sometimes equated with producing an outcome that is "foreseeable." - Fourth, a harm, or loss, must occur, and the harm has to involve a legally protected right or interest for which the person can seek to recover damages that have been suffered. If it can be established that (1) there was a duty, (2) that was breached, (3) which proximately caused the (4) resulting harm, then a tort can be proven in a civil lawsuit

The Evaluation of Competence to Stand Trial- Revised

-a semi-structured interview that was developed using the Dusky criteria. - Its three factors (factual understanding of proceedings, rational understanding of proceedings, and consultation with counsel) have been empirically tested using a statistical technique known as confirmatory factor analysis. It focuses on information that is specific to the case of the individual being evaluated =It also addresses the question of whether the evaluee is trying to exaggerate or fake deficits that might make that person appear incompetent to stand trial. Both the case specificity and the built-in measure of possible exaggeration are useful features of the ECST-R, which appears well supported by the relevant research

Assessing Fitness to Be a Parent

-agency is responsible for the protection of children will intervene if it receives a credible report that a child is being abused or neglected. After an investigation, the agency might file a petition asking a court to remove the child from the home and arrange placement with a relative or in foster care. In such cases, the issue before the court is whether the child should be left with the parents or removed from the home because of parental unfitness. -The question for the evaluator is what arrangement protects the child's well-being, while properly respecting the rights of the parents. The state must protect children from parents who cannot or will not provide adequate food, shelter, and supervision. The state must also protect children from parents who abuse them, physically or psychologically. A clinician might recommend that the child be placed temporarily in foster care and that the parents receive training in parenting skills as a condition of having the child returned to them. -In extreme cases— those in which parents abandon a child or are clearly incapable of caring for a child—the state might seek to terminate parental rights. This is done most often when relatives or others wish to adopt the child. -12-year-old Gregory Kingsley asked a Florida judge in 1992 to terminate his parents' right to function as parents on his behalf. Gregory had been removed from his home and placed in foster care, but when the state attempted to return him to his birth parents, Gregory objected and tried to sever his parents' ties to him. Both the trial judge and an appellate court ruled in Gregory's favor

More biases in workers compensation by experts

-attorneys often retain the same expert to conduct evaluations of different cases. An expert who is repeatedly hired by the same attorney, whether a plaintiff's or defense attorney may risk opining what the attorney wants rather than rendering impartial opinions about each case. One study investigated this issue by examining whether psychological assessments of workers' compensation claimants were related to the side that had retained the expert. ■ Plaintiff experts gave impairment ratings to claimants that were nearly four times larger than the impairment ratings assigned by defense experts. ■ Defense experts concluded that MMPIs completed by claimants were invalid or malingered in 72% of their evaluations, whereas plaintiff experts reached this conclusion in 31% of their evaluations. ■ Of the 19 experts who had conducted three or more evaluations, 17 tended to do so almost exclusively for one side. -A better measure of evaluator impartiality involves the proportion of "useful" opinions (i.e., opinions helpful to the referring attorney) relative to the overall number of referrals. For example, an evaluator who has conducted 90 evaluations for the defense and 10 for plaintiffs might appear less impartial than the evaluator who has done 50 for the defense and another 50 for plaintiffs. However, looking more closely at the "usefulness" proportion might reveal that the first evaluator has reached a conclusion favorable to the referring attorney in 50% of the defense cases and 45% of the plaintiff cases, whereas the second evaluator has favored the referring attorney in 98% and 100% of defense and plaintiff cases, respectively. - Even if experts are reasonably impartial, attorneys may selectively introduce expert opinions depending on whether those opinions support their side. -This is comparable to the "file drawer problem" encountered by investigators performing meta-analysis: Because research reporting nonsignificant differences is often not accepted for publication, such results tend to languish, unpublished, in a file drawer, which limits the accuracy of the investigator's ability to determine an overall "effect" of a research phenomenon based on all the evidence. - Even if forensic evaluators can be reasonably impartial, they still conduct such evaluations in the context of an adversarial system, and decisions about whether to introduce such reports as evidence are often made by attorneys who are advocates for their clients. It is these kinds of concerns that prompted the writing of a series of "best practice" books in forensic mental health assessment. These books describe several different kinds of civil questions relevant to this chapter. One focuses on evaluation for workplace disability. The second such book addresses the topic of workplace discrimination and harassment. A third describes the process of conducting evaluations for personal injury claims more broadly. These books discuss the steps that potential evaluators can take to promote thorough, accurate, and balanced evaluations on this topic.

Post-Arrest: Initial Detention/Initial Hearing and Pre-trial Services (Intercept 2).

-if an individual is arrested upon first encounter with police or another first responder, the second intercept identifies the point at which that person is brought to "first appearance" before a judge. In some jurisdictions, there is a specialized team that works as part of the court system, identifying defendants who would be appropriate for behavioral health diversion. -While some specialized problem-solving courts (e.g., drug court, mental health court, veterans' court, community court) function at this stage, it is more typical to have them take referrals at Intercept 3. Accordingly, Intercept 2 diversion is more likely to send individuals directly to treatment, or assign them to specialized probation -Addressing outcomes for individuals who receive diversion following arrest, investigators have examined services use, mental health, substance use, offending, and quality of life. They have also employed criteria such as whether the individual had housing -the studies described later in this paragraph using a comparison group typically obtain their groups from (1) individuals who have been diverted, or (2) those in a standard condition such as probation, and consider how these two groups fare on certain relevant outcomes. This is sometimes called a quasi-experimental design because it does not have the genuine experimental attribute (random assignment to group) that allows the researcher to control all variables except the one of interest—diversion status—and hence draw conclusions about whether diversion causes differences in outcomes. For this intercept, several investigators reported that diverted individuals had more time in the community, fewer hospital days in the community, fewer arrests, and less homelessness

The MacArthur Measures of Competence.

-new but promising -Most of the 82 items in the MacSAC-CD rely on a hypothetical vignette about which the defendant is asked questions that tap foundational and decisional abilities. - Defendants are asked the questions in a sequence. Open-ended questions come first. If there is a wrong answer, correct information is provided to the defendant. Defendants are then asked additional open-ended questions to determine whether they now have the necessary understanding based on this disclosure; a series of true-false questions concludes each area of assessment. =This format has several advantages. It offers a more standardized evaluation across different defendants, and it makes it possible to assess separately defendants' preexisting abilities as well as their capacity to learn and apply new information. =One major disadvantage of the MacSAC-CD is that it was developed as a research instrument and takes bout two hours to complete, far too long to be used in clinical practice. To overcome this limitation, a 22-item clinical version of this measure, called the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA) was developed (Poythress et al., 1999). This instrument begins with a hypothetical vignette about a crime, upon which the first 16 items are based. These items assess the defendant's general understanding of the legal system and adjudicative process and his or her reasoning abilities in legal situations. The remaining six items are specific to the defendant's own legal situation

Beliefs about Alternative Dispute Resolution

-participants favored options that offered them control (e.g., a neutral third party helping disputants to arrive at their own resolutions, and processes that allow disputants to control their own presentation of evidence) -Some attorneys like the process, believing that both the process and the outcomes are fair. But some attorneys doubt that arbitration, for example, saves time or money and express concerns about whether arbitrators have adequate knowledge of the issues - Another counterargument is that litigants have a constitutional right to trial by judge or jury. Judges are paid to enforce that right and mandating ADR undermines it. According to Federal Judge G. Thomas Eisele (1991), mandatory ADR can lead to an unintended effect: some lawyers (he calls them "piranhas") file meritless claims, knowing that their claims will have "settlement value" in mediation.

Community Alternatives to Standard Prosecution

-problem-solving court, developed to rehabilitate and monitor individuals in the community rather than incarcerate them -apply to members of a certain subgroup whose experience or behavioral health symptoms might account for a number of minor offenses committed by members of this group. For example, individuals with severe mental illness. Individuals with serious drug problems may become involved in offenses such as theft, prostitution, and public intoxication for reasons related directly to the need to buy drugs and the consequences of taking them. Military veterans may become involved in offenses -Three major justifications have been offered for the development and expansion of such community alternatives. The first is humanitarian. In the words of the U.S. Supreme Court, the Eighth Amendment (which states that "cruel and unusual punishments" may not be inflicted) must draw its meaning from the "evolving standards of decency" that characterize a "maturing society" (Trop v. Dulles, 1958). But Trop v. Dulles was a death penalty case. - The second justification for community-based alternatives to standard prosecution is cost. Put simply, it is much less expensive to monitor and treat an offender in the community than it is to incarcerate that individual. California, for example, currently spends about $2 billion annually on health care for offenders who are incarcerated in prison. Individuals who are provided with treatment and monitoring services in the community but do not need housing or board—and may be able to continue working—cost much less to rehabilitate. -The third justification involves the kind of specialized treatment services that can be provided in the community, as contrasted with services that can be delivered in a prison or jail. Correctional facilities house inmates who, as a group, have wide-ranging rehabilitation needs. In addition, correctional facilities must prioritize security and rule compliance highly, which reduces the resources available for treatment and rehabilitation. When populations are more homogeneous (e.g., as in mental health or drug treatment settings), and security concerns are fewer, then specialized and intensive treatment is more feasible.

Capacity to Waive Miranda Rights

-set of rights for individuals in police custody including right to avoid self-incrimination and to have a lawyer -The waiver of Miranda rights is required in order for defendants in police custody to make a confession—and the waiver of these rights must be done in a knowing, intelligent, and voluntary fashion. -This assessment is challenging because typically the waiver and confession have occurred months before the professional's evaluation. -The U.S. Supreme Court has held that defendants have a Constitutional right to waive counsel and represent themselves at trial, if they make this decision competently (Faretta v. California, 1975). -In addition, the presiding judge must be convinced that the waiver of counsel is both voluntary and intelligent. Defendants do not have to convince the court that they possess a high level of legal knowledge, although some legal knowledge is probably important.

Assessing Competence to Make Treatment Decisions

-the first step might be to break down the explanation of the treatment decisions facing the patient into smaller bits of information. If there were still an impasse between the patient and treating professionals after such a presentation, it would be important to administer a clinical assessment instrument to determine whether a given patient lacks the necessary ability to reach a competent decision. -Such an instrument—the MacArthur Competence Assessment Tool for Treatment Decisions (MacCAT-T)—is now commercially available. The research for the MacCAT-T, conducted as part of a larger MacArthur Research Network on Mental Health and Law study on competencies, coercion, and risk assessment, focused on the capacities of individuals with severe mental disorders to make decisions and give informed consent about their own psychiatric treatment. Researchers in the MacArthur Treatment Competence Study developed a series of structured interview measures to assess the four basic abilities—understanding information, applying information, thinking rationally, and expressing a choice—involved in legal competence. -Standardized interviews, using items of this type, were conducted with three groups of patients—those with schizophrenia, those with major depression, and those with heart disease—and with groups of people from the community who were not ill but were demographically matched to the patient groups. Only a minority of the persons in all the groups showed significant impairments in competent decision-making about various treatment options. However, the patients with schizophrenia and major depression tended to have a poorer understanding of treatment information and used less adequate reasoning in thinking about the consequences of treatment than did the heart patients or the members of the community sample. The more serious the symptoms of mental disorder the poorer the understanding. -These results obviously have implications for social policies involving persons with mental disorders. First, contrary to popular impressions, the majority of patients suffering from severe disorders such as schizophrenia and major depression appear to be capable of competent decision-making about their treatment. On the other hand, a significant number of patients— particularly those with schizophrenia—show impairments in their decision-making abilities.

Fitness Interview Test—Revised.

-uses a structured professional judgment approach to assessing competence capacities. Using this approach, various areas are considered but not "scored," and there is not a total score that is related to a category or level of impairment. -It was originally designed for use in Canada, but has been updated for use in the United States and Great Britain as well. It includes 16 items in three broad domains (Factual Knowledge of Criminal Procedure, Appreciation of Personal Involvement In and Importance Of the Proceedings, and Ability to Participate in Defense). -Research on the FIT-R suggests that it is a promising screening tool.

Competence to Be Executed.

The U.S. Supreme Court decided, in the case of Ford v. Wainwright (1986), that the Eighth Amendment ban against cruel and unusual punishments prohibits the execution of defendants while they are incompetent. -. Therefore, mental health professionals are at times called on to evaluate inmates waiting to be executed to determine whether they are competent to be executed. The practical problems and ethical dilemmas involved in these evaluations are enormous and have led some psychologists to recommend that clinicians refrain from performing such evaluations. If they are to be conducted, however, it is preferable to observe guidelines and a structured approach

competence to plead guilty

ability of a defendant to understand the consequences of accepting responsibility of criminal charges -By pleading guilty, defendants waive several constitutional rights: the right to a jury trial, the right to confront their accusers, the right to call favorable witnesses, and the right to remain silent. The Supreme Court has held that waiving such important rights must be done knowingly, intelligently, and voluntarily (Johnson v. Zerbst, 1938), and trial judges are required to question defendants about their pleas in order to establish clearly that they understand -A knowing, intelligent, and voluntary guilty plea also includes understanding the charges and the possible penalties that can be imposed, and requires the judge to examine any plea bargain to ensure that it is "voluntary" (i.e., that it represents a considered choice between constitutionally permissible alternatives). -For example, prosecutors can offer lighter sentences to a defendant in exchange for a guilty plea, but they cannot offer the defendant money to encourage a guilty plea. Logically, competence to plead guilty would require that defendants understand the alternatives they face and have the ability to make a reasoned choice among them. -Defendants standing trial must be aware of the nature of the proceedings and be able to cooperate with counsel in presenting the defense, paying attention to the proceedings, and controlling their behavior over the course of a trial. This creates a strong demand for attention, concentration, and behavioral control. -Defendants pleading guilty, on the other hand, must understand the possible consequences of pleading guilty instead of going to trial and must be able to make a rational choice between the alternatives. This underscores the importance of the defendant's cognitive awareness and reasoning.

competence to stand trial

ability to understand legal proceedings one is involved in and to consult with one's attorney -The accepted national standard for competence to stand trial is a "sufficient present ability to consult with [one's] attorney with a reasonable degree of rational understanding, and ... a rational, as well as factual, understanding of the proceedings against [one]" (Dusky v. United States, 1960). -The Dusky standard does not specify how the evaluator assessing competence should judge the sufficiency of rational understanding, ability to consult, or factual understanding. However, to allow evaluators to provide courts with more detailed information in these areas, the number of courts and mental health groups have expanded on Dusky by listing more specific criteria related to competence. --Understanding ❏ The roles of key participants within the legal process ❏ The current charges faced by the defendant ❏ The elements of an offense ❏ The consequences of conviction ❏ The rights waived in making a guilty plea ■ Appreciating ❏ The likelihood that he or she will be found guilty ❏ The consequences for the defendant of being convicted ❏ The available legal defenses and their likely outcomes ❏ The ability of the defendant to make rational decisions regarding the specific case, including whether or not to testify ■ Reasoning ❏ Distinguishing more relevant from less relevant information ❏ Seeking relevant information ❏ Weighing and evaluating various legal options and their consequences ❏ Making comparisons ❏ Providing reality-based justification for making particular case-specific decisions or conclusions --Competence to stand trial is the most frequently raised issue in forensic mental health, with estimates ranging as high as 60,000 motions annually in the United States .

psychological autopsy

attempt to determine the mode of death by considering known behavior of the deceased -Their use has spread over the years, and now they are encountered most often in cases such as determining the cause of death in situations where an insurance company could deny death benefits if the policyholder committed suicide; assessing claims in workers' compensation cases that stressful working conditions or work trauma contributed to a worker's death or suicide; evaluating a deceased individual's mental capacity to execute or modify a will, and assessing the validity of an argument occasionally made by criminal defendants that a victim's mode of death was suicide rather than homicide. -Most of them rely on information from two sources: interviews with third parties who knew the decedent and prior records. Some investigators concentrate on more recent data, generated close in time to the person's death. What was the person's mood? Were there any pronounced changes in the person's behavior? Others—especially those who take a developmental perspective on behavior—look for clues early in the person's life. - A review of research on psychological autopsy studies revealed specific life events (particularly interpersonal conflict) as risk factors for suicide, with some evidence that the greater the conflict, the higher the risk. However, limitations of psychological autopsy studies suggest the need for complementary research into life events prior to serious suicide attempts. -In cases involving workers' compensation claims and questions of whether insurance benefits should be paid, the courts have usually admitted psychological autopsy testimony; in criminal cases or in cases involving the question of whether a person had the mental capacity to execute a will, the courts have been more reluctant to permit the testimony. Judges are more hesitant to allow expert testimony in criminal cases than in civil ones. One reason for the courts' hesitancy in permitting psychological autopsy testimony in cases involving the validity of wills might be that, in such cases, the state of mind of the deceased is the critical question for the jury. Allowing expert testimony on this matter might therefore be viewed as invading the province of the jury, a perception that judges usually want to avoid.

The Defense of Diminished Capacity

defense that is applicable if the defendant lacks the ability to "meaningfully premeditate the crime"' -Like the insanity defense, diminished capacity often involves evidence that the defendant suffers a mental disorder. It differs from insanity in that it focuses on whether defendants had the state of mind to act with the purpose and the intent to commit a crime— that is, to consider the consequences of their contemplated actions—not on whether they knew the crime was wrong or whether they could control their behavior. -Suppose M'Naghten knew that murder was wrong but, because of his mental condition, wasn't thinking clearly enough to intend to kill Peel's secretary. Under these conditions, he would not be insane, but he would lack the mens rea (the necessary specific intent) for first-degree murder, so he probably would have been convicted of second-degree murder or manslaughter. -Offenders should be convicted of the crime that matches their mental state, and expert testimony should be offered on the issue of their mental state. The majority of states permit expert testimony about a defendant's mens rea. As long as proof of a defendant's mens rea is required, defendants are likely to put forward expert evidence about it, especially in those states that have abolished the insanity defense. Even when the diminished capacity defense "works," it still usually leads to a prison sentence.

mediation

dispute resolution in which a neutral party helps disputing parties agree on a resolution -often involves shuttle diplomacy: mediation in which a mediator travels between the parties in an attempt to broker a deal -people prefer mediation Why? People are risk-averse; they work to avoid taking risks. A mediator can assist in facilitating a resolution, and people prefer the certainty of a settlement over the uncertainty of arbitration or trial. -Mediation also has a role in divorce proceedings. An alternative to collaborative divorce (in which both parties employ their own lawyers, who agree to cooperate), a mediated divorce involves a third party who helps the couple to dissolve their marriage. -. One remarkable study assessed parent-child contact and co-parenting in families whose custody disputes had been resolved 12 years earlier by either mediation or litigation. Families who mediated custody showed more cooperation and flexibility than families who litigated. In particular, nonresidential parents who mediated had more contact with their children and were more intimately involved in parenting, and fathers who mediated were much more satisfied with their custody arrangements. -Compared to litigated divorces, mediation apparently encourages parents to comply with divorce agreements, remained involved in their children's lives, and renegotiate relationships in a more adaptive way

arbitration

dispute resolution in which a neutral party makes a binding decision for the two disputants -the closest resemblance to a trial. -When the parties agree to binding arbitration, they agree to accept the decision of an arbitrator. Salary arbitration in major league baseball is a good example of binding arbitration. (contract) -. The parties present evidence and argue the case, and the arbitrator makes a decision. Though initially promoted as a way to avoid the contentiousness and expense of a trial, in recent years arbitration has been criticized for being overly formal and time-consuming

advance medical directive preferences

documentation indicating future treatments one will accept should one be incapacitated -- Investigators surveyed 405 outpatients of 30 primary care physicians and 102 members of the general public on the topic of advance directives, which were preferred by 93% of the outpatients and 89% of the general public. When people were asked to imagine themselves incompetent and with a poor prognosis, they decided against life-sustaining treatment about 70% of the time. -. But for living wills to be effective, individuals must be able to generate preferences that are stable over time and across changes in health. In studies that examined the stability of advance directives, participants were asked to record their preferences for various life-sustaining treatments (e.g., cardiopulmonary resuscitation [CPR]) in different medical scenarios, such as coma. After an interval ranging from one month to two years, these individuals recorded their preferences again. The average stability of preferences across all judgments was 71%, suggesting that over time periods as short as two years, there were substantial changes in stated treatment preferences -.Most people are unaware that their preferences change; they mistakenly believe that the preferences they express in the second interview are identical to those they provided in the first interview. Preferences are also dependent on the context in which they are made. For example, when patients recently discharged from hospitals are asked about their desire for life-sustaining treatment, they show a characteristic "hospital dip"; they report less desire for interventions than they did prior to hospitalization—and less than they do several months after their discharge.

summary jury trial

expedited court proceeding used to resolve simple, lower-value cases - like a conventional jury trial, though shorter. A jury is empanelled, and the lawyers tell the jurors what the witnesses would say if they were present. The lawyers argue the case and try to answer the jurors' questions about the facts. The judge tells the jury what the law is and tries to answer jurors' questions about the law. The jurors then deliberate and decide the case. -In the original conception of a summary jury trial, the "verdict" did not bind the parties, it was merely advisory. In recent years, verdicts have become binding and enforceable. -The American Bar Journal has reported favorable comments from lawyers and judges who had availed themselves of this form of ADR -.Commenting on the summary jury trial, federal judge William Bertelsman said, I believe that substantial amounts of time can be saved by using summary jury trial in a few select cases. Also ... the summary jury trial gives the parties a taste of the courtroom and satisfies their psychological need for a confrontation with each other. Any judge or attorney can tell you that emotional issues play a large part in some cases. When emotions are high, whether between attorneys or parties, cases may not settle even when a cost-benefit analysis says they should. A summary jury trial can provide a therapeutic release of this emotion at the expenditure of three days of the court's time instead of three weeks (McKay v. Ashland Oil Inc., 1988, p. 49).

arraignment

formal statement of charges and an initial plea by the defendant to these charges -the judge makes sure that the defendant has an attorney and appoints one if necessary. The indictment is then read to the defendant, and the defendant is asked to plead guilty or not guilty. It is customary for defendants to plead not guilty at this time, even those who ultimately plead guilty. -The reasons for a not-guilty plea at this stage involve providing opportunities for both plea bargaining and discovery, so that the defendant's attorney can review some of the evidence against the defendant

Grand Jury

group of citizens who hear evidence in closed proceedings and decide whether to issue an indictment -(complaints prepared and signed by the prosecutor describing the crime charged). - The grand jury may call witnesses on its own initiative if it is dissatisfied with the witnesses presented by the prosecutor. In some states, the defendant has a right to testify. In about one-third of the states, a criminal defendant cannot be prosecuted unless a grand jury has found grounds to do so. The remaining states permit the prosecutor to proceed either by grand jury indictment or by a preliminary hearing. -If the grand jury decides there is sufficient evidence to justify the defendant being tried, it issues an indictment. For example, six Baltimore police officers were indicted by a grand jury in relation to the 2015 death of Freddie Gray, a young black man who died while in police custody. None of the officers was convicted

competence

individual's capacity to understand and behave in a way specified by the particular legal question --Defendants may be adjudicated (i.e., determined by a judge) to be incompetent if they are seriously deficient in one or more abilities, such as understanding the legal proceedings, communicating with their attorneys, appreciating their role in the proceedings, or making legally relevant decisions. -Criminal proceedings should not continue against someone who cannot understand their nature and purpose, or cannot assist in defending against prosecution on these charges -First, defendants must be able to understand the charges against them so that they can participate in the criminal justice system in a meaningful way, making it more likely that legal proceedings will arrive at accurate and just results. -Second, punishment of convicted defendants is morally acceptable only if they understand the reasons why they are being punished. -Finally, the perceived fairness and integrity of our adversary system of justice requires participation by defendants who have the capacity to defend themselves against the charges of the state.

adjudicative competence

legal capacity necessary for a defendant to stand trial or otherwise resolve criminal charges -Despite this, the U.S. Supreme Court ruled that the standard for competence to stand trial would be applied in federal courts to other competence questions that arise in the criminal justice process (Godinez v. Moran, 1993). In so doing, it rejected the idea that competence to plead guilty involves a higher standard than competence to stand trial. -Some scholars have suggested that adjudicative competence is a clearer description of the various capacities that criminal defendants need in different legal contexts - The term competence to stand trial is still used frequently, although it acquired a broader meaning after the Godinez decision. We discuss adjudicative competence with the understanding that it is synonymous with competence to stand trial, post-Godinez.

civil competency

legal context in which one's mental ability to complete a specific task is questioned -. A competent individual is expected to be able to (1) understand basic information that is relevant to making a decision; (2) apply that information to a specific situation in order to anticipate the consequences of various choices; (3) use logical—or rational—thinking to evaluate the pros and cons of various strategies and decisions; and (4) communicate a personal decision or choice about the matter under consideration. - Planning about future medical treatments is formalized through what are known as advance medical directives, in which patients indicate what kinds of treatment they want should they later become incapacitated and incompetent to make treatment decisions. One of the most important of these advance directives is the "living will," in which a patient essentially asserts that he or she prefers to die rather than to be kept alive on a ventilator or feeding tubes. -The ethical and practical issues involved in determining patients' competence to issue advance medical directives are substantial, but the trend revealed in Supreme Court decisions such as Cruzan v. Director, Missouri Department of Health (1990), is to recognize that patients have great autonomy in accepting or rejecting a variety of treatments and health care provisions.

insanity

legal doctrine permitting consideration of mental abnormality in assessing criminal liability -the insanity defense: it may be very difficult to accurately gauge a defendant's mental state at the time of the offense, as must be done when a defendant uses insanity as a defense. This becomes even more difficult when the fact-finders—juries and judges— must determine not whether the person is currently insane—but rather whether he or she was insane at the time of the crime, possibly months or years earlier. This problem is further complicated by the reality that there are far fewer specialized tools specifically designed to assess insanity than there are to assess competence. -One brief screening instrument—the Mental Status Examination at the Time of the Offense (Slobogin, Melton, & Showalter, 1984)—has been developed, but research on its reliability and validity is limited to one study. More research has been conducted on the Rogers Criminal Responsibility Scales a set of 25 scales that organize the many factors and points of decision that clinicians need to consider when assessing criminal responsibility. Although the RCRAS has clear limitations, it is the only formal instrument with some demonstrated reliability and validity for guiding clinicians' decision-making process in insanity evaluations - Another reason why insanity questions are so difficult involves the conflict between law and behavioral sciences as alternative pathways to knowledge. Insanity is a legal concept, not a medical or psychological one. In many states, a defendant could be hallucinating, delusional, and diagnosed with schizophrenia, but if the individual knew the difference between right and wrong, he or she would be legally sane. -Thus, psychiatrists and clinical psychologists are called upon as forensic experts to provide information regarding a decision that is ultimately outside the traditional diagnose-andtreat framework of these professions. = -The therapeutic goals of psychiatry and clinical psychology (diagnosis and assessment that are probabilistic and complex) do not fit well with the legal system's demand for a straightforward "yes-or-no" answer. Furthermore, although mental health experts can offer diagnoses, any particular diagnosis is less important than the specific symptoms and their impact on the functional legal demands associated with the insanity standard (whether the defendant "knew" the behavior was wrong; in some states, additionally, whether the defendant could conform his or her conduct to the requirements of the law)

motion in limine

legal request for a judge to make a pretrial ruling -Perhaps the most common pretrial motions are those that seek advance rulings on evidentiary issues that will arise at trial. A motion in limine is simply a request for a pretrial ruling. Suppose, for example, that the defendant was previously convicted of burglary. The judge must decide whether to allow the prosecution to introduce that conviction into evidence in order to discredit the defendant if he or she chooses to testify. The defendant obviously wants a pretrial ruling on this issue in order to plan the questioning of the jurors and to decide whether to testify. Similarly, the prosecutor may want a pretrial ruling on the admissibility of a certain piece of evidence in order to plan the opening statement

future best interests of the child

prevailing standard for custody decisions -About 40-50% of marriages in the United States now end in divorce. As of 2015, 26% of households with children in the United States were single-parent families. There are also a variety of other family arrangements. . Second, the prevailing assumption was that awarding custody of young children (sometimes called children of "tender years") to their mothers was usually in their best interests but it was diminished. -Courts should consider the following criteria: (1) the wishes of the child; (2) the wishes of the child's parents; (3) the relationships between the child and the parents, siblings, and significant others who interact with the child; (4) the child's adjustment at home and school and in the community; and (5) the physical and mental health of the parties involved. - Most states permit two kinds of custodial arrangements—sole and joint custody, each with two aspects (physical and legal). Physical custody refers to the living arrangement, whereas legal custody concerns the responsibility for decision-making. In sole custody, the child will live only with one parent (although the other parent may be granted visitation rights), and/or all legal decision-making authority for that child will rest with one parent. In joint custody, both parents can retain parental rights concerning decisions about the child's general welfare, education, health care, and other matters (this is called joint legal custody), and the child can alternate living in the home of the mother and in the home of the father according to the schedule provided in the custody decision (this is called joint physical custody).Usually, one parent is designated the residential parent, and the child spends more time living at the home of that parent. - In general, families that are functioning better at the time that custody is awarded are more likely to ask for joint custody than families that are experiencing ongoing difficulties The three main differences between sole custody and joint custody are as follows: 1. Joint custody distributes the frequency of interaction more evenly between the children and each parent. 2. Joint custody requires more interactions between the divorced parents and generates more demands for cooperation concerning the children. 3. Joint custody results in more alterations in caregiving arrangements, along with more separations and reunions between children and parent

initial appearance

process of being brought before a judge within 48 hours of arrest (constitutional right) (The Fourth Amendment to the U.S. Constitution) -The primary purpose of the initial appearance is for the judge to review the evidence summarized by the prosecutor and determine whether there is reason to believe that the suspect committed the crimes charged. -In addition, the judge will inform defendants of the charges against them, remind them of their constitutional rights, review the issue of bail, and appoint attorneys for those that cannot afford to hire their own

negotiation

process of conferring with another in an attempt to settle a legal matter -Agree without assistance of third party Formal E.g., Labor contract - union reps & management Informal E.g., Collaborative divorce

charge bargaining

reduction in charges against a criminal defendant in exchange for a guilty plea -But charge bargaining may lead prosecutors to charge the defendant with more crimes or with a more serious crime than could be proven at trial, as a strategy for enticing defendants to plead guilty. Indeed, until 2013, unless defendants were willing to enter a plea bargain at the first opportunity, federal prosecutors were required to charge defendants with the most serious crimes that could be proved. -Laboratory research using role-playing procedures indicates that "overcharging" is effective: Research participants were more likely to accept a plea bargain when more charges were filed against them. The defendants who engage in this type of bargaining may win only hollow victories. Cases in which prosecutors offer to drop charges are likely to be ones for which judges would have imposed concurrent sentences for the multiple convictions anyway

preliminary hearing

step between arrest and trial where the judge decides whether to proceed to trial -One of its purposes is to filter out cases in which the prosecution has insufficient evidence. -At a preliminary hearing, the prosecution must offer some evidence on every element of the crime charged and the judge must decide whether the evidence is sufficient to pursue the case further. No jury is present and defendants rarely testify or offer any evidence of their own. The judge will sometimes send the case to a grand jury or reduce the charges, either because the judge believes the evidence does not support the level of the crime charged by the prosecutor or because of a plea bargain between the prosecutor and the defense attorney -33% of states require grand jury -66% permit grand jury, but can continue after preliminary

Courtroom of the Future

- Even today, technologies being used in courts extend far beyond surveillance videos which would have been novel only a few years ago. One noteworthy development is the proliferation of smartphone videos', particularly clips of encounters between citizens and police, which have dominated the news recently. Scores of websites dedicated to "cop-watching" now exist and various groups monitor high-crime areas for examples of hostile police-citizen interactions -Federal courts have affirmed the right to film police in action, and police departments have responded by investing in wearable cameras ("body-cams") which film their actions automatically -videoconferencing that permits live, two-way video and audio communication between hearings and trials in courtrooms and remote sites—useful when witnesses and defendants are medically incapacitated or incarcerated, and to allow for the presence of interpreters in a courtroom - electronic and digital evidence, such as digital recordings, documents, and photographs, that allows judges and jurors to easily observe the evidence themselves - computer animations and simulations that feature computer-generated depictions of complex physical events like accidents and crimes, often accompanied by voice-overs from participants in the event. -virtual reality technologies that allow observers to experience a re-creation of an event as if they were actually present when it occurred. Virtual reality environments allow judges and jurors to immerse themselves in an artificially created world such as a crime scene, operating room, factory, or accident site to gauge for themselves what could be seen from different points of view and what likely happened given the circumstances. -Answers are beginning to emerge and they suggest that, among other things, defendants may be disadvantaged by videoconferencing. It results in less favorable outcomes for defendants in bail hearings, perhaps because it tends to be brief - Remote video technologies result in more deportations in immigration cases than in-person hearings because detained persons on video are less engaged in the adversarial process - according to the Federal Rules of Evidence (2009), evidence may not be introduced into a trial if its probative value (relevance to legal proof) is outweighed by any prejudicial effects on the opposing party or if it misleads or confuses the jury. Thus, it is imperative that judges have good information about the effects of high-tech evidence presentations on legal judgments.

Steps Between Arrest and Trial

- being arrested for a crime and being charged with a crime are two different events, and a person may be arrested without being charged. - For example, the police may arrest drunks to detain them and sober them up, but formal charges might never be filed. -Charging implies a formal decision to continue with the prosecution, and that decision is made by the prosecuting attorney rather than the police. A few studies have focused on psychological factors associated with prosecutors' decision to pursue criminal charges. - For example, by reviewing files in 400 child maltreatment cases in North Carolina, Eldred and colleagues determined that only 40% of individuals arrested for child maltreatment were charged, and that the presence of a concurrent nonchild maltreatment charge was associated with that decision

After evidence in trial

--Once all the evidence has been presented, each side is permitted to make a closing argument, also called a summation. Although jurisdictions vary, typically the prosecution or plaintiff gets the first summation, followed by the defense, after which the prosecution or plaintiff responds and has the final word. The final step in the jury trial is for the judge to give instructions to the jury. (In some states, instructions precede the closing arguments.) -The judge informs the jury of the relevant law. For example, a definition of the crime is given, as well as a statement of what elements must be present for it to have occurred—that is, whether the defendant had the motive and the opportunity to commit the crime. The judge also instructs jurors about the standard they should use to weigh the evidence. With criminal charges, the jurors must be convinced beyond a reasonable doubt that the defendant is guilty before they vote to convict. Although the concept of "reasonable doubt" is difficult to interpret, generally it means that jurors should be strongly convinced (but not necessarily convinced beyond all doubt). Each of us interprets such an instruction differently, and this instruction is often a source of confusion and frustration among jurors. In a civil trial, in which one party brings a claim against another, a different standard is used. A preponderance of the evidence (requirement that the evidence in civil litigation for one side outweighs the other side's evidence) is all that is necessary for a finding in favor of one side. -Usually, judges and attorneys translate this to mean "Even if you find the evidence favoring one side to be only slightly more convincing than the other side's, rule in favor of that side." Preponderance is sometimes interpreted as meaning at least 51% of the evidence, though it is difficult (and potentially misleading) to quantify a concept that is expressed verbally. -excused to the deliberation room, and no one—not even the bailiff or the judge—can be present during or eavesdrop on their deliberations. When the jury has reached its verdict, its foreperson informs the bailiff, who informs the judge, who in turn reconvenes the attorneys and defendants (and plaintiffs in a civil trial) for the announcement of the verdict

The Trial

-At the beginning of the trial itself, lawyers for each side are permitted to make opening statements (comments made by the lawyers on each side that previews the evidence to be presented). The prosecution or plaintiff usually goes first, because this side is the one that brought charges and bears the burden of proving them. Attorneys for the defendant, in either a criminal or civil trial, can choose to present their opening statement immediately after the other side's opening statement or to wait until it is their turn to present evidence. -A study, using a mock jury simulation, varied the timing of the defense opening statement in an auto theft case When the defense opening statement was given earlier rather than later, verdicts were more favorable to the defense, and the perceived effectiveness of the defense attorney was enhanced. Defense attorneys who take their first opportunity to make an opening statement can apparently counter the story told by the prosecutor, or at least urge jurors to consider an alternative interpretation of the evidence. -After opening statements, the prosecution or plaintiff calls its witnesses. Each witness testifies under oath, with the threat of a charge of perjury (lying under oath). That witness is then cross-examined by the opposing attorney, after which the original attorney has a chance for redirect questioning. Redirect questioning is likely if the original attorney feels the opposition has "impeached" his or her witness; impeachment in this context refers to a cross-examination that has effectively called into question the credibility (or reliability) of the witness.The purpose of redirect examination is to salvage his or her original testimony. The defense, however, has one more chance to question the witness, a process called recross (cross-examination of a witness a second time, after redirect examination). After the prosecution or plaintiff's attorneys have presented all their witnesses, it is the defense's turn. The same procedure of direct examination, cross-examination, redirect, and recross is used. - After both sides have presented their witnesses, one or both may decide to introduce additional evidence and witnesses and so ask the judge for permission to present rebuttal evidence, which attempts to counteract or dis-prove evidence given by an earlier witness.

Other Legal Competencies

-Because questions about competence can be raised at any point in the criminal process, several other competences are at issue in deciding whether a defendant can participate knowingly in different functions -. Competence for any legal function involves (1) deter - mining what functional abilities are necessary, (2) assessing the context where these abilities must be demonstrated, (3) evaluating the implication of any deficiencies in the required abilities, and (4) deciding whether the deficiencies warrant a conclusion that the defendant is incompetent

Trials in Which the Insanity Plea "Succeeded."

-But sometimes when the insanity plea succeeds, the defendant spends more time in an institution than they would have spent in prison if found guilty. In fact, this outcome has led defense attorneys to request that judges be required to instruct jurors that if the defendant is found not guilty by reason of insanity, he or she will probably be committed to a secure psychiatric hospital. The Supreme Court, however, has refused to require such an instruction (Shannon v. United States, 1994). -The case of John W. Hinckley, Jr. has had the greatest influence triggering much of the court reform and legislative revision regarding the insanity plea since 1982. Even though the Hinckley case is one in which the insanity defense was successful in the narrow sense of the word, that outcome was largely a result of a decision by the presiding judge regarding the burden of proof. -Judge Barrington Parker instructed the jury in accordance with federal law at the time, which required the prosecution to prove the defendant sane beyond a reasonable doubt. After listening to two months of testimony, the Hinckley jury deliberated for four days before finding the defendant not guilty by reason of insanity. Afterward, several jurors said that, given the instruction that it was up to the government prosecutors to prove Hinckley sane, the evidence was too conflicting for them to agree. They thought his meandering travels raised a question about his sanity,

decision to set bail

-In capital cases and cases in which the defendant poses a serious risk of fleeing or committing other crimes, they can deny bail altogether. Approximately half of all murder defendants are denied bail, compared with less than 10% of defendants charged with other crimes -. Short of denying bail, judges can require that money (or a bail bondsman's pledge) be deposited with the court or that a third person agrees to be responsible for the defendant's future appearances and to forfeit money if the defendant does not appear. -Nearly three-quarters of people awaiting trial in New York City jails are detained because they could not pay bail, yet fewer than 8% of them had committed a serious crime -Most defendants who promise to reappear do so. In the 75 most populous counties' in the United States in 2009, only 17% of released defendants missed a court appearance and were issued a warrant for their arrest -bail evolved in the American legal system as an attempt to resolve the basic conflict between an individual's right to liberty on the one hand and societal rights to be protected from criminal behavior on the other. -The Eighth Amendment to the U.S. Constitution says that excessive bail shall not be required, but the Supreme Court has ruled that this provision does not guarantee a right to bail; it simply requires that bail, if any, should not be excessive (United States v. Salerno, 1987). -types: Cash bond, Surety bond (bondsman - usually pay 20%), Property bond, Personal or third-party recognizance

Sentencing

-In the past, judges have had wide discretion to impose sentences by taking into account all they knew about the defendant and his actions, regardless of whether those actions constituted a crime or were proven to a jury. But in a landmark 2004 decision, the U.S. Supreme Court ruled that judges may not increase defendants' sentences on the basis of what they perceive as aggravating factors (circumstances that seem to make the "crime" worse). In Blakely v. Washington (2004), the Court reserved those determinations for juries. -In a handful of states, sentencing is determined by a jury. After the verdict is rendered, the jury is reconvened, and attorneys present evidence relevant to the sentencing decision. The jury then deliberates until it agrees on a recommended punishment. In cases involving the death penalty, jurors, rather than judges, decide the sentence (Ring v. Arizona, 2002)

What Considerations Affect the Decision to Set Bail

-Legal factors are related to the offense or the offender's legal history; research has shown that bail is likely to be denied or set very high when the offense was serious and when the offender has prior convictions. In one study, judges imposed higher bail on those charged with sexual offenses than on those charged with nonsexual offenses at the same statutory offense level. This suggests that judges may be considering even the legally relevant factor of crime seriousness in an unsystematic, stereo-type-influenced way. -Because laws relevant to bail decisions are ill defined and there is little public scrutiny of this step in the criminal process, extralegal factors (influence that is legally irrelevant; cannot serve as evidence in a legal proceeding) such as offenders' race and gender can affect judges' decisions as well. For example, in cases prosecuted by the New York County District Attorney in 2010-2011, judges detained a higher percentage of Black felony defendants (61%) than Latinos (56%), Whites (43%), or Asians (28%). Judges regard Black defendants as more likely to be re-arrested than Whites, and female defendants as less likely to be re-arrested than males. - judges tend to use a mental shortcut called the matching heuristic: They search through a subset of available case information and then make a decision on the basis of only a small number of factors (e.g., offense severity and prior record), often ignoring other seemingly relevant information. This is not especially surprising; judges' large caseloads force them to make fast decisions, and people often use shortcut reasoning strategies when forced to think quickly. -The opinions of police and prosecutors can also sway judges' decisions about bail. Bail-setting decisions in two London courts and found that prosecutors' requests and the position of the police strongly influenced judges' choices. Problematically, neither of these recommendations was related to important factors in the case, including an offender's risk of committing further crimes while out of jail. Finally, although judges were highly confident that they had made the appropriate decisions, there was significant disagreement among judges who responded to the same simulated fact patterns, raising troubling questions of fairness and equality

Factors That Determine Settlement Amounts

-Negotiation theory suggests that outcomes are also influenced by the negotiators' reservation price, or bottom line -The defendant's reservation price is the maximum amount of money that he or she would be willing to pay to reach an agreement, whereas the plaintiff's reservation price is the minimum amount of money that he or she would accept to settle the claim -Various psychological factors influence reservation points, including perceptions of the likely outcome if the case goes to trial and negotiators' goals and views on the merits of the case. In considering the merits of their case, plaintiffs, defendants, and attorneys alike are influenced by psychological biases, often referred to as heuristics (mental shortcut, "rule of thumb," or educated guess used to help solve a problem), which affect their ability to gauge when it is in their best interest to settle the case prior to trial. - - --- -Because of these reasoning errors, both plaintiffs and defendants lose more by going to trial than by settling. In one study, 61% of plaintiffs who passed up a settlement offer and proceeded to trial were awarded less than had been offered, and 24% of defendants were forced to pay more than they had offered -anchoring—occurs when negotiators are strongly influenced ("anchored") by an initial starting value and when, in the subsequent discussion, they do not sufficiently adjust their judgments away from this starting point. This bias is quite pervasive, and even wildly extreme anchors can influence judgments. - In the context of settlement negotiations, the first offer can serve to anchor the final negotiated compromise: the higher the offer, the higher the ultimate settlement (. Many legal disputes involve intense emotions that can also influence the likelihood of resolution. -The emotion most closely associated with disputes maybe anger. Higher levels of anger in one party to a lawsuit are related to angry responses from the other party, a greater likelihood of deception, and a greater frequency of impasse. -positive emotions such as happiness foster cooperation and concession making, stimulate creative problem solving, increase the likelihood that parties will disclose personal information and positively influence negotiators' expectations. Experiencing positive emotions improves one's chances for successful settlement negotiations.

Plea Bargaining in Criminal Cases

-Of nearly 50,000 felonies adjudicated in the 75 largest counties in the United States during 2009, 96% were resolved via guilty pleas. Interestingly, murder defendants were less likely to plead guilty than defendants charged with other violent felonies. Guilty pleas were offered by 97% of robbery suspects but by only 73% of murder suspects -The defendant's part of the plea bargain requires an admission of guilt. The prosecutor's part of the bargain may involve an agreement to reduce the number of charges or allow the defendant to plead guilty to a charge less serious than the evidence supports. For example, manslaughter is a lesser charge than murder, and many murder prosecutions are resolved by a plea of guilty to manslaughter. -In a common procedure known as charge bargaining, the prosecutor drops some charges in exchange for a guilty plea. -Plea bargaining may also take the form of sentence bargaining, in which prosecutors recommend reduced or less restrictive sentences in return for guilty pleas.

Evaluations of Plea Bargaining

-The U.S. Supreme Court has called plea bargaining "an essential component of the administration of justice" (Santobello v. New York, 1971), and has stated that defendants have a constitutional right to effective representation in plea negotiations, including competent advice and information about prosecutors' offers (Lafler v. Cooper, 2012) -Advocates justify the procedure by pointing out that guilty pleas lessen the backlog of cases that would otherwise engulf the courts, facilitate the prosecution of other offenders, and reduce the involvement of criminal justice participants, including police officers who don't have to spend hours in court, and victims who are spared the trauma of a trial. Critics claim that (1) improper sentences—sometimes too harsh but more often too lenient—are likely; (2) plea bargaining encourages defendants to surrender their constitutional rights; (3) prosecutors exert too much power in negotiating guilty pleas; and (4) innocent defendants might feel pressure to plead guilty because they fear the more severe consequences of being convicted by a jury. -Defendants who are convicted at trial do indeed suffer more severe sanctions than those who accept plea bargains. In 2006, 89% of felons convicted during a trial were sentenced to jail or prison, compared with only 76% of those who committed the same crime and accepted plea bargains. In addition, judges imposed longer sentences on offenders who went to trial (an average sentence of 8 years and 4 months) than on those who pled guilty (an average sentence of 3 years and 11 months) - In drug cases, Blacks were less likely than Whites to receive reduced charge offers, and more likely to receive offers that included incarceration rather than community service, probation or fines -Adolescents may be more likely than adults to accept guilty pleas, in part, because they lack the comprehension skills necessary to intelligently weigh the trade-offs inherent in plea bargaining.

The Trial as a Conflict-Resolving Ritual

-shifts the function of the trial from determining the truth to providing a mechanism to resolve controversies. "At the risk of oversimplification we suggest that it removes primary attention from the concept of doing justice and transfers it to the psychological realm of creating a sense that justice is being done" (p. 34).In other words, they need closure that only a trial can provide. -A trial conducted in Oklahoma in 2004 exemplified this desire for closure. Several years before, Oklahoma City bombing suspect Terry Nichols was convicted on federal charges and sentenced to life in prison, rather than to death but most wanted death and were disappointed. -The stabilizing function of a trial is worthless, of course, if the public doubts that justice was done in the process. That sense of closure is sometimes missing after a trial; the widespread dissatisfaction in some segments of our society with the outcome of O. J. Simpson's case. -remind us that truth in the legal system is elusive, and that truth seekers are subject to human error, even though the system seems to assume that they approach infallibility

The Appellate Process

-To protect their rights, defendants who claim they have been convicted unjustly can appeal to a higher level of court. (Defendants who plead guilty are often required to waive their appellate rights as a condition of the plea agreement.) Appeals are also possible in virtually every civil suit. -As in earlier steps in the legal process, a conflict of values occurs as appeals are pursued. One goal is equality before the law—that is, to administer justice consistently and fairly. But appellate courts also try to be sensitive to individual differences in what at first glance appear to be similar cases. Appellate courts recognize that judges and juries can make errors. The appellate process can correct mistakes that impair the fairness of trials; it also helps promote a level of consistency in trial procedures. - When a decision is appealed to a higher court, the appellate judges read the transcript of the trial proceedings, the motions and accompanying documents filed by the attorneys, and written arguments, called briefs, from both sides about the issues on appeal. They then decide whether to overturn the original trial decision or to let it stand. Appellate judges rarely reverse a verdict on the basis of the facts of the case or the apparent legitimacy of that verdict. -When they do reverse a verdict, it is usually because they believe that the trial judge made a procedural error, such as allowing controversial evidence to be presented or failing to allow the jury to consider some evidence that should have been included. If a verdict in a criminal trial is overturned or reversed, the appeals court will either order a retrial or order that the charges be thrown out. In reviewing the decision in a civil case, an appellate court can let the decision stand, reverse it (rule in favor of the side that lost rather than the side that won), or make some other changes in the decision and remand (return) the case to a lower court for reconsideration. - One possible conclusion in either civil or criminal appeals is that certain evidence should not have been admitted or that certain instructions should not have been given; hence, a new trial may be ordered.

Preliminary Actions

-discovery -If the trial is before a jury, the selection of jurors involves a two-step process. The first step is to draw a panel of prospective jurors, called a venire, from a large list (usually based on lists of registered voters and licensed drivers). -Once the venire for a particular trial has been selected—this may be anywhere from 30 to 200 people, depending on the customary practices of that jurisdiction and the nature of the trial—a process known as voir dire is employed to question and select the eventual jurors. -Prospective jurors who reveal biases and are unable to be openminded about the case are dismissed from service, so the task of jury selection is really one of elimination. Prospective jurors who appear free of these limitations are thus "selected." Voir dire can have important effects on the outcome of the trial.

Psychological Influences on the Plea-Bargaining Process

-framing effects: influence on a person's choice when decision alternatives are presented as either gains or losses -Imagine that two defendants have been charged with the same crime, each has a 50% chance of being convicted at trial, and, if convicted, each is likely to be sentenced to 20 years in prison. The prosecutor has offered both defendants a deal that would result in only 10 years imprisonment in exchange for a guilty plea. Now imagine that Defendant A's options are framed as a gain and Defendant B's options are framed as a loss. Defendant A is told that if he went to trial, there would be a 50% chance that he would be acquitted and gain 10 years outside of prison compared to the plea-bargain offer. Defendant B is told that if he went to trial, there would be a 50% chance that he would be convicted and lose an additional 10 years of life in prison compared to the plea-bargain offer. Although the two situations are identical except for the decision frame, Defendant A is more likely to take his chance at trial and Defendant B is more likely to take the plea bargain to avoid a loss. -The choice to plead guilty to reduced charges also implicates a phenomenon called anchoring (common tendency of individuals to rely too heavily on suggested information when making decisions) whereby the initial charge serves as a reference point against which other offers are compared. If the initial charge is excessive (which is often the case), then anything less will be perceived by a defendant as a good deal, even if it is still more serious than what the evidence could prove at trial. In general, people tend to be too optimistic about their chances of securing favorable outcomes and are therefore overconfident. The overconfidence bias suggests that because defendants and their attorneys believe (incorrectly) that they have a chance to win at trial, they might reject reasonable offers from prosecutors. Overconfidence skews beliefs about the likelihood of acquittal. Denial mechanisms affect thoughts about one's guilt and the chances for successful plea-bargain arrangements. Offenders often have difficulty acknowledging guilt to their attorneys; some cannot even admit it to themselves. But denial results in minimizing the harm caused to others and an unwillingness to accept responsibility for wrongdoing. Defendants in denial are unlikely to take a plea bargain even when it is advantageous for them to do so

Criticisms of Plea Bargaining

-it may prevent families of victims from seeing the defendants "get justice" or hearing them acknowledge full responsibility for their offenses, as exemplified by the King family's reaction to James Earl Ray's plea agreement. -Second, plea bargaining removes the opportunity for juries—ostensibly comprised of defendants' peers—to decide whether people should be punished and incarcerated for their actions. It also diminishes the chance for laypeople to act as a check on prosecutors, legislators, and judges. One commentator has suggested that allowing juries to hear information about any plea offer would remove the incentive that pushes criminal defendants to give up jury trials -Finally, the pressures to enter into a plea agreement may lead some defendants to plead guilty to crimes they never committed. Extensive interviews of defendants who pleaded guilty to felonies in New York City revealed that 27% of the youth and 19% of the adults claimed they were completely innocent of the charges . One estimate is that approximately 10% of legally acknowledged exonerations involve innocent defendants -Finally, it is troubling that cases are not always resolved in line with the gravity of the offense. When these "errors" are in the direction of sentencing leniency, they often are attributed to a perceived overload in the prosecutor's office or the courts. A defendant should not be able to plead to a greatly reduced charge simply because the criminal justice system lacks the resources to handle the case. However, the answer to problems of unwarranted leniency is not the abolition of plea bargaining; rather, adequate funding must be provided for the court system, as well as for the correctional system

Competence Assessment for Standing Trial for Defendants with Mental Retardation

-was developed specifically for assessing defendants with mild to moderate intellectual disability - the CAST-MR is the only specialized tool developed specifically for assessing trial competence with individuals with developmental disabilities. One important issue being studied by researchers is the extent to which defendants can successfully fake incompetence on these tests. Some research suggests that although offenders can simulate incompetence they often take such simulations to extremes, scoring much more poorly on specialized measures of competence capacities than their truly incompetent counterparts. Very poor performance should make evaluators suspicious that a defendant might be exaggerating his or her deficiencies. -Research indicates that the ECST-R is sensitive to the exaggeration of both symptoms of mental illness and intellectual deficits This issue has gained a great deal of attention because estimates of malingering (faking or grossly exaggerating) mental illness in competence evaluations have been estimated as nearly one in five (18%) -One of these instruments is the Miller Forensic Assessment of Symptoms Test (M-FAST; Miller, 2001). The M-FAST is a brief, 25-item structured interview that can accurately identify individuals who are attempting to feign mental disorders -Empirical evidence thus far supports the use of the M-FAST in detecting malingering , but it is a screening instrument and should be used in conjunction with a wider array of assessments to determine whether the defendant is actually malingering -Following the collection of assessment data, evaluators communicate their findings to the judge. Often, they submit a written report that summarizes the evidence on competence to stand trial, as well as the likelihood that appropriate treatment will sufficiently improve competence-relevant deficits. In controversial or strongly contested cases, it is more likely that there will be a formal competence hearing where the evaluating experts testify and are questioned by attorneys from both sides. -In the 1992 case of Medina v. California, the U.S. Supreme Court held that a state can require a criminal defendant to shoulder the burden of proving that he or she is incompetent. -But how stringent should that burden be? Most states established the criterion to be a "preponderance of the evidence," meaning that the defendant had to show that it was more likely than not that he or she was incompetent. But four states—Oklahoma, Pennsylvania, Connecticut, and Rhode Island—required a higher standard of proof: evidence that was "clear and convincing." Yet in 1996, the Supreme Court held that this higher standard was too stringent (Cooper v. Oklahoma, 1996), so the standard remains "preponderance of the evidence

Elimination of the Insanity Plea

1. Juries are asked to decide questions that predispose them to make arbitrary and emotional judgments because of either over-identification with or alienation from the defendant ; 2. Mental health professionals are encouraged to offer opinions, guesses, and speculations under the banner of scientific expertise; and 3, Society's views about criminality and "craziness" are so intertwined that an insanity defense to a crime does not make much sense Arguments against Eliminating the Plea. the NGRI plea should be maintained as an option, modifications of the system should be restricted to those that clarify the rule, and defendants for whom the defense was successful should be evaluated.

Interdisciplinary Fitness Interview (IFI).

a semi-structured interview measuring three areas of competency: functional memory, appropriate relationship with lawyer, and understanding of the justice system -Evaluators rate the weight they attached to each item in reaching their decision about competence. These weights vary depending on the nature of the defendant's case for example, hallucinations might impair a defendant's ability to participate in some trials, but they would have limited impact in others and would therefore be given less weight. - interviewers using the IFI agreed on final judgments of competence in 75 of 77 cases evaluated. These judgments agreed 76% of the time with independent decisions about competence made later at a state hospitals

sentence bargaining

recommendation by the prosecutor of a reduced sentence in exchange for a guilty plea - In role-playing research, adults (but not juveniles) were much less likely to accept a plea bargain when the offer included jail time than when it did not suggest that sentencing bargaining can be an effective tool, at least for adult defendants. Sentencing is ultimately the judge's decision, and although judges vary in their willingness to follow prosecutors' recommendations, many simply rubber-stamp prosecutorial sentencing recommendations. In general, defendants can expect that judges will follow the sentences that have been recommended by a prosecutor, and prosecutors can earn the trust of judges by recommending sentences that are reasonable and fair

Sequential Intercept Model

schema assessing diversion needs for individuals with serious mental illness -It identifies five stages of the overall criminal justice process at which standard prosecution and incarceration could be interrupted and a community treatment alternative substituted. These stages are: (1) law enforcement and emergency services; (2) post-arrest: initial detention/initial hearing and pre-trial services; (3) postinitial hearings: jail/prison, courts, forensic evaluations, and commitments; (4) re-entry from jails, prisons, and forensic hospitalization; and (5) community corrections (including parole) and community support. This model is relatively new, but its impact has grown recently

Can High-Risk Defendants Be Identified?

Around 1970, a push began for legislation that would increase the use of preventive detention—the detention of persons who pose a risk of flight or danger, including violent offenders, individuals with severe mental illness, and suspected terrorists. Civil libertarians oppose the preventive detention of individuals believed to be at high risk of re-offending because it conflicts with the fundamental assumption that a defendant is innocent until proven guilty (hard to do so and not very precise) -Patrick Dale Walker tried to kill gf and had high bail but after 4 days in jail it was low and got out and 3 months later he killed her -The preventive detention of suspected terrorists is an altogether different matter, though no less contentious. (Recall the outcry over President Trump's 2017 order banning citizens from seven predominately Muslim countries from entering the United States until a stricter vetting system could be developed to ensure they did not pose a national security risk.) -Many risk factors for common forms of violence (e.g., domestic violence) are not relevant to violent terrorism based on ideologies, affiliations, and grievances. Moreover, individual risk factors for being recruited into a terrorist network and actually carrying out a terrorist act are probably not the same, and the many varieties of terrorist acts may each reflect a different constellation of precursors.

Does pretrial release affect trial outcome?

Defendants who are detained in jail are more likely to plead guilty or be convicted and to receive longer sentences than those who can afford bail, even when the seriousness and evidence was the same -Some data suggest that prosecutors use pretrial detention as a "resource" to encourage (or coerce) guilty pleas. Pretrial detention is likely to cost defendants their jobs, making it harder for them to pay attorneys—so the threat of it may make them more likely to plead guilty. -Among defendants who actually go to trial, an accused person who is free on bail finds it easier to gather witnesses and prepare a defense. A jailed defendant cannot go to his or her attorney's office for meetings, has less time working with the attorney to prepare for trial, and has less access to records and witnesses. Detention also corrodes family and community ties and affects job stability

It Relies Too Much on Mental Health Experts

Researchers have found some support for the reliability and validity of psychologists' evaluations of criminal responsibility. Results from several studies revealed strong agreement (88% to 93%) between evaluators' recommendations and courts' decisions about defendants' criminal responsibility. -Additionally, critics are concerned over the intrusion of psychology and psychiatry into the decision-making process. One remedy proposed to solve this problem is to prevent experts from giving what is often called ultimate opinion testimony; that is, they could describe a defendant's mental condition and the effects it could have had on his or her thinking and behavioral control, but they could not state conclusions about whether the defendant was sane or insane. The federal courts, as part of their reforms of the insanity defense, now prohibit mental health experts from offering ultimate opinion testimony about a defendant's insanity -In a study of whether prohibiting ultimate opinion testimony affects jury decisions subjects were randomly assigned to the comparisons among three different versions of the trial are of greatest interest. Some subjects read transcripts in which the mental health experts for both sides gave only diagnostic testimony (that the defendant suffered a mental disorder at the time of the offense); a second group read a version in which the experts gave a diagnosis and then also offered differing penultimate opinions about the effects this disorder had on the defendant's understanding of the wrongfulness of his act; a final group read a transcript in which the experts offered differing diagnoses, penultimate opinions, and ultimate opinion testimony about whether the defendant was sane or insane at the time of the killing. -Did ultimate opinion testimony affect the subjects' verdicts? Not in this study; subjects' verdicts were not significantly different regardless of the type of testimony they read. - When the jury sees a parade of mental health experts representing one side and then the other, their confidence in the behavioral sciences is jeopardized; this is also true for the general public, when they read about this process involving a number of different experts .Further, some experts, in an effort to help the side that has retained them, offer explanations of such an untestable nature that their profession loses its credibility with jurors and the public. However, in many cases involving claims of insanity, the experts retained by each side basically agree on the question of insanity. These cases receive less publicity because they often end in a plea agreement.

advantages for defense during trial

The defense is entitled to "discovery"; the prosecution must turn over all exculpatory evidence (evidence that would tend to absolve the defendant but the defense does not have to turn over all incriminating evidence. 2. If a trial is before a jury, the defense may have more opportunities than the prosecution to remove potential jurors without giving a reason. 3. Defendants do not have to take the stand as witnesses on their own behalf. In fact, they do not have to put on any defense at all; the burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty of the crime. 4. Defendants who are found not guilty can never be tried again for that specific crime. So for example, even if Baltimore police uncover new evidence against Caesar Goodson, the officer acquitted of murder in Freddie Gray's death, Goodson can never be retried on those charges.

The Trial as a Search for the Truth

The trial as a rule governed confrontation between the prosecution and the defense in which the truth will emerge. -This view assumes that what really happened can be clearly ascertained—that witnesses are capable of knowing, remembering, and describing events completely and accurately. -Although this image of the trial recognizes that the opposing attorneys present only those facts that buttress their positions, it assumes that the truth will emerge from the confrontation of conflicting facts. It also assumes that judges or jurors, in weighing these facts, can "lay aside their prejudices and preconceived views regarding the case and replace such biases with a dispassionate analysis of the arguments and evidence" - But eyewitnesses are not always thorough and accurate reporters, as the legal system would like to believe. - Interrogations can sometimes result in false confessions, and jurors are not particularly good at distinguishing false confessions from true confessions and they can also be prejudiced.

What Is the Purpose of a Trial?

They provide a sense of stability and a way to resolve conflicts so that the disputants can receive satisfaction

plea bargains

agreement to accept a lesser charge or reduced sentence in lieu of a trial -Of some 56,000 felony cases filed during May 2009 in the 75 most populous counties in the United States, 25% were dismissed prior to formal prosecution -if dismissed then at Initial appearance or preliminary hearing

risk assessment

estimation of the probability that a person will behave violently

Settlements in Civil Cases

settlement negotiation: process used to resolve civil disputes without a trial -Attorneys also negotiate with insurers, regulators, and sometimes even with their own clients in an attempt to settle a dispute.) Most divorces, landlord-tenant disputes, claims of employment discrimination, and accident cases are resolved without a trial. -Large class-action lawsuits that may involve hundreds or thousands of plaintiffs are also typically resolved in settlement negotiations. In 2012, attorneys representing the oil giant BP and more than 100,000 Gulf Coast residents and businesses affected by the 2010 Deepwater Horizon oil spill reached a settlement -Lawyers spend considerable time negotiating settlements because they would almost always prefer the certainty of a negotiated compromise to the uncertainty of a jury trial -n. In a personal injury case, a common type of civil dispute, plaintiffs' lawyers will try to extract every dollar that a defendant will pay, whereas defendants' lawyers will try to avoid paying all but the minimal cost necessary to settle the case -little girl got disemboweled by a pool cleaner and her family used the company and they settled for $25 million

alternative dispute resolution (ADR)

use of methods for settling conflicts outside of a courtroom -In a 2001 study of courts in 46 randomly selected counties in 22 states, the National Center for State Courts found that the number of cases tried had decreased by 50% in 10 years -. In 1962, 11.5% of federal civil cases were decided in a trial, compared with 6.1% in 1982, 1.8% in 2002, and only 1.2% in 2009. In 2016, the figure dropped to 0.7%. -In 1962, 15.4% of criminal cases went to trial; in 2002 only 4.7% involved a trial -These declines are attributable to several factors, including the perceived cost of litigation—the "transaction costs," in economists' language. Lawyers' fees to prepare for and try a case, as well as the fees paid to expert witnesses, often make a trial economically unfeasible. -In addition, federal courts pressure litigants to settle or to plead guilty. The federal sentencing guidelines give criminal defendants an incentive to plead guilty because judges can decrease the length of a sentence on the basis of "acceptance of responsibility" (which normally requires a guilty plea) -. Finally, federal trials have decreased because it has been some time since Congress passed sweeping legislation that creates liability for certain actions and that brings lawsuits into the courts to determine the boundaries around that liability. Legislation such as the Americans with Disabilities Act of 1990 is an example. In civil cases, federal judges are required to attempt to resolve disputes through ADR, and in both state and federal courts, judges can require litigants to try to settle their cases without going to trial. Increasingly, American courts assume that cases will be settled, not tried, to the point where a trial is viewed "as a failure of the system" -can be solved through negotiation -in a study in which law students role-played attorneys in a simulated negotiation about a contract dispute, participants thought negotiations were fair when they believed that they had been listened to and treated with courtesy, and when they perceived the other party as trustworthy