Psychological evaluations for the courts: a handbook for mental health professionals and lawyers

956 Pages·2007·5.327 MB·English

by  Melton, Gary B

PSYCHOLOGICAL
EVALUATIONS
FOR THE COURTS
A Handbook for
Mental Health Professionals and Lawyers
THIRD EDITION
Gary B. Melton
John Petrila
Norman G. Poythress
Christopher Slobogin
with
Phillip M. Lyons, Jr.
Randy K. Otto
THE GUILFORD PRESS
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Psychologicalevaluationsforthecourts:ahandbookformentalhealthprofessionalsand
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Includesbibliographicalreferencesandindex.
ISBN-13:978-1-57230-966-1(hardcover)
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1. Forensicpsychology. 2. Forensicpsychiatry. 3. Evidence,Expert—UnitedStates.
4. Insanity—Jurisprudence—UnitedStates. I. Melton,GaryB.
KF8922.P77 2007
614′.1—dc22
2007023963
About the Authors
Gary B. Melton, PhD, is Professor of Psychol- chair of the U.S. Advisory Board on Child Abuse
ogy and Director of the Institute on Family and and Neglect and as national vice-president of Par-
Neighborhood Life at Clemson University, and a ents Anonymous,and he was a member of panels
fellowintheCentreforPsychologyandLawatthe of the National Academy of Sciences on mistreat-
University of the Free State in South Africa.He is mentofolderadultsandontrainingofhealthpro-
a past president of Childwatch International, the fessionals about family violence.
AmericanOrthopsychiatricAssociation,theAmeri-
can Psychology–Law Society, and the American John Petrila, JD, LLM, is a professor in the
PsychologicalAssociation(APA)DivisionofChild, Department of Mental Health Law and Policy at
Youth,andFamilyServices.Amonghishonorsare theUniversityofSouthFlorida.Heservedaschair
three APA Distinguished Scientific Contribution oftheDepartmentfrom1992to2004.Hehasalso
Awards (for Psychology in the Public Interest, been General Counsel to the New York State
Public Service, and International Advancement of Office of Mental Health and Director of Forensic
Psychology), the Karl Heiser Award (APA), the Services in the Missouri Department of Mental
LynnStuartWeissAward(AmericanPsychological Hygiene.Mr.PetrilaispastpresidentoftheInter-
Foundation), the Harold Hildreth Award (APA national Association of Forensic Mental Health
Division of Psychologists in Public Service), the ServicesandamemberoftheMacArthurFounda-
Frederick Howell Lewis Award (Psi Chi), the tion Research Network on Mandated Community
Donna Stone Award (Prevent Child Abuse Amer- Treatment. He has published widely on mental
ica),the Career Achievement Award for Research health law and policy issues.He is the coeditor of
(American Professional Society on the Abuse of the journal Behavioral Sciences and the Law, the
Children),Admiral of the Nebraska Navy (Gover- coeditor of Mental Health Services: A Public Health
nor of Nebraska), and Outstanding Alumnus Perspective (Oxford University Press), and a coau-
Award (Department of Psychology, University of thor of The Effectiveness of Involuntary Outpatient
Virginia). The author of more than 300 publica- Treatment,theRANDInstitute’sstudyontheeffec-
tions, Dr. Melton has traveled in more than 40 tiveness of outpatient civil commitment.
countries,inmostcasesforresearch,consultation,
or lecturing. His work has been cited by U.S. Norman G. Poythress, PhD, is a professor in
courts at all levels, including the U.S. Supreme the Department of Mental Health Law and Policy
Court, and he has been an advisor to the U.S. at the University of South Florida. He is a past
AttorneyGeneralandtheU.N.Committeeonthe president of the American Psychology–Law Soci-
Rights of the Child. Dr. Melton served as vice- ety and was the 1990 recipient of the American
v
vi AbouttheAuthors
Academy of Forensic Psychology’s Award for Dis- Psychology,Public Policy and Law; and Behavioral Sci-
tinguished Contributions to Forensic Psychology. ences and the Law.
Dr. Poythress has served as a consultant to two
MacArthur Foundation Research Networks, and Phillip M.Lyons,Jr.,JD,PhD, is Professor of
his own research has been funded by the MacAr- Criminal Justice and an affiliate faculty member
thurFoundationandtheNationalInstituteofMen- with the Clinical Psychology Doctoral Program at
talHealth.Hepreviouslyservedasanexpertpan- SamHoustonStateUniversity.HeisalsotheExec-
elist in the development of a benchbook for utive Director of the Texas Regional Center for
psychological evidence,a project of the American Public Safety Innovation, a regional community
BarAssociation’sCommissiononMentalandPhys- policing institute funded by the U.S. Department
ical Disability Law, and he recently served on a of Justice. Before graduate and law school, Dr.
committee of the Institute of Medicine, National Lyons worked as a peace officer in the Houston
Academy of Sciences, that developed recommen- area. When he left full-time law enforcement, he
dations regarding ethical guidelines for research was a detective specializing in crimes involving
involving prisoners as participants. children. His academic interests lie largely in the
areas of public policy that affect children and law
ChristopherSlobogin,JD,LLM,istheStephen enforcement policy, with the aim of promoting
C.O’ConnellProfessorofLawattheUniversityof inclusiveness, community engagement, and social
FloridaFredricG.LevinCollegeofLaw.Heisalso support.HecurrentlyservesontheAmericanPsy-
anaffiliateprofessorofpsychiatryattheUniversity chological Association’s ad hoc Committee on
ofFloridaandanadjunctprofessorattheUniversity Legal Issues.
of South Florida’s Mental Health Institute. In the
early1980sMr.SloboginhelpedestablishVirginia’s RandyK.Otto,PhD,isanassociateprofessorin
outpatientforensicevaluationsystemasDirectorof the Department of Mental Health Law and Policy
the University of Virginia’s Forensic Evaluation at the University of South Florida. In addition to
Center and also directed a legal aid program at a thisprimaryappointment,heservesasadjunctfac-
statementalhospital.CoauthorofLawandtheMental ulty at Stetson University College of Law in
Health System (Westgroup Publishing), the leading Gulfport, Florida, and in the Department of Psy-
law school textbook on mental health law, he has chologyandtheDepartmentofRehabilitationand
authored over 40 articles on that subject.He also Mental Health Counseling at the University of
recentlypublishedMindingJustice:LawsThatDeprive South Florida. Dr. Otto’s research, writing, and
PeoplewithMentalDisabilityofLifeandLiberty(Har- practice focus on forensic psychological assess-
vardUniversityPress)andProvingtheUnprovable:The ment,andhehasservedaspresidentoftheAmeri-
RoleofLaw,Science,andSpeculationinAdjudicatingCul- can Academy of Forensic Psychology, the Ameri-
pabilityandDangerousness(OxfordUniversityPress). can Psychology–Law Society, and the American
HehasservedaschairoftheLawandMentalDis- Board of Forensic Psychology. He chaired the
abilitySectionoftheAmericanAssociationofLaw Committee on Legal Issues of the American Psy-
Schools, reporter for the American Bar Associa- chological Association and currently spearheads
tion’sStandardsontheInsanityDefense,coreporter the committee revising the Specialty Guidelines for
fortheABA’sResolutiononMentalDisabilityand ForensicPsychologists,whicharepublishedjointlyby
theDeathPenalty,andeditor/reviewerforLawand Division 41 of the American Psychological Associa-
Human Behavior; the American Journal of Psychiatry, tionandtheAmericanBoardofForensicPsychology.
Preface
General Remarks orrefertoresearchoneachtopic,includingperti-
nent studies concerning the reliability of clinical
Sincethefirsttwoeditionsofthisbookwerepub- opinions and specific evaluation techniques, actu-
lished in 1987 and 1997,the field of forensic psy- arialdataonthepersonssubjecttoevaluation,and
chology has expanded enormously, whether one empirical assessments of the manner in which the
focuses on theory, practice, or empirical findings. legal process actually works.Finally,we offer sug-
Taking account of these explosive developments gestions about evaluation procedures and ways of
has required us to revise each of the book’s 20 communicating information to the courts. These
chapters,someofthemquitesignificantly.Likethe recommendations are not offered solely for the
firsttwoeditions,thisthirdeditionisaimedattwo benefit of the clinician; they should also help
groups: mental health professionals who are demystify the clinical process for the lawyer.
involved in performing psychological evaluations The collective experience culminating in this
forthecourts,andlawyersandjudgeswhorequest bookiswide-ranging.Twooftheprincipalauthors
such evaluations. Its purpose is to provide these (J.P.andC.S.)arelawyerswithspecializededuca-
groups with a comprehensive guide to the issues tional backgrounds in mental health law, one of
the legal system has most commonly asked clini- whom(C.S.)isalawschoolprofessorwhoatone
cians to address. time represented individuals with mental disabili-
The contexts examined in this book are thus ties,andtheotherofwhom(J.P.)hasjuststepped
quite diverse. They include insanity and compe- down from directing an interdisciplinary program
tence determinations; sentencing and civil com- of research and policy on law and mental health,
mitment proceedings; probate and guardianship afterservingformanyyearsaschiefcounseltothe
hearings;personal injury,workers’compensation, New York State Office of Mental Health. The
and Social Security claims; juvenile delinquency othertwoprincipalauthors(G.B.M.andN.G.P.)
and status offense adjudications; custody and aredoctorate-levelpsychologists,one(G.B.M.)a
neglectdisputes;andfederaldiscriminationclaims director of a university-based interdisciplinary
and educational “mainstreaming”issues.In each of institute focused on children, families, and com-
these areas, we first summarize the relevant legal munities who is particularly interested in devel-
rules and their jurisprudential underpinnings.We oped “legal architectures” designed to promote
then try to analyze the law’s approach critically— children’s well-being, and the other (N. G. P.) a
both to increase the mental health professional’s practicing clinician and university professor who
understanding of the issues and to enhance the devotesincreasinglymoreofhistimetostudiesof
lawyer’s ability to argue for change. Additionally, the forensic process.One of the two new authors
unlike many works on “forensics,”we incorporate asofthisedition(P.M.L.)isacriminaljusticepro-
vii
viii Preface
fessorwithaparticularinterestinchildren’sissues, § 18.05(a), Table 18.1, on judicial acceptance of
andtheother(R.K.O.)isaprofessorwhospecial- actuarial evidence].
izes in forensic psychological assessment and has Oneoftheprimaryreasonswewrotethisbook
performedhundredsofevaluationsinvolvingcom- was to try to sort through this seemingly contra-
petency,riskassessment,custody,andotherforen- dictory approach to clinical expertise and to pro-
sic issues. Each author has trained both mental vide some rough guidelines for its use in the legal
healthprofessionalsandlegalpractitionersinmen- areas we cover. Put in general terms, we urge
tal health law, and we have all observed or per- throughout this volume, first of all, that lawyers
formed scores of psychological evaluations for the andjudgeslookcarefullyatthefoundationsofclin-
courts.Theideaforthisbookgrewoutofatrain- ical opinions and that mental health professionals
ingprograminVirginia,whichinvolvedtwoofus not overstep the bounds of their existing knowl-
(G. B. M. and C. S.) in establishing a statewide edge.More specifically,we admit a strong prefer-
community outpatient evaluation system.* ence for research-based testimony, although we
While the diversity in our backgrounds has led would not bar evidence founded on theoretical
todifferingareasofspecialization,wehavereached constructs or “educated intuition” in most con-
some common conclusions about psychological texts. Second, we believe that mental health pro-
evaluationsforthecourts.Thesethemespermeate fessionals have an obligation to make clear the
thebookandareworthstatinghereattheoutset. uncertainty of their offerings, whether research
First,we obviously believe that there is a place basedortheorybased,andthatlawyersshouldnot
formentalhealthprofessionalsinthelegalsystem. attempt to deny or gloss over the probabilistic
To put this somewhat differently, we feel that in nature of clinical decisionmaking. Perhaps most
most contexts the potential contributions of men- controversially from the practitioner’s point of
talhealthprofessionalsoutweightheprejudiceand view,we also feel that mental health professionals
systemic inefficiency that may result from their shouldneitherbepermittednorcajoledtogiveso-
use. Contrary to the assertions of some writers, called “ultimate” legal opinions lacking in clinical
clinicians do have specialized knowledge that can content,evenwhentheymakeclearthattheopin-
assist judges and juries in arriving at better- ionsarenonscientific.Allofthesestipulationsstem
informed decisions. from our belief that if mental health professionals
On the other hand, it is apparent that input aretoassistthelegalsystem,theyandthelawyers
frommentalhealthprofessionalsisfrequentlymis- who seek their aid must tread a fine line between
used, overused, and, on occasion, underused by co-opting the legal decisionmaker and condoning
thelegalsystem,dependinguponthespecificissue. legal results uninformed by credible information
Attimesthelawappearsinterestedonlyinobtain- concerning human behavior.
ingaconclusory“expertimprimatur,”whichhides Assuming that mental health professionals can
themoral(anduncomfortable)natureofthedeci- contribute constructively in the legal process, the
sion being made [see § 9.09(c)(7) on dangerous- task becomes one of maximizing their usefulness.
nessassessments].Atothertimes,thelegalsystem First and foremost,this requires making clinicians
demands data and inferences from a clinician,but (and lawyers) aware of the legal framework in
in situations in which lay testimony and common which they will participate, and making lawyers
sense are all that are required [see § 16.01(a) on (and clinicians) at least cognizant of basic forensic
custody determinations]. And at still other times, evaluationprocedures.Mostofthechaptersinthis
the courts completely disregard valid scientific book are devoted to this enterprise. It also
findings,apparently out of fear that the factfinder requires, in our opinion, that forensic evaluations
will pay too much attention to them [see be tailored to the specific legal problems at hand.
Atseveralpointsinthisvolume,westressthatlaw-
yers should generally not request, and that clini-
*See GARY MELTON, LOIS WEITHORN, & CHRISTOPHER
cians generally should not perform,global evalua-
SLOBOGIN,COMMUNITYMENTALHEALTHCENTERSAND
tions aimed at discovering “what’s wrong” with
THE COURTS: AN EVALUATION OF COMMUNITY-BASED
FORENSICSERVICES(1985). clients.Norshouldeithertypeofprofessionaldis-
Preface ix
tort legal issues to fit clinical constructs.Compe- The Content of the Book
tency evaluations, for instance, primarily require
an assessment of the clients’ current functioning, With these themes in mind, the specific subjects
not categorization by diagnosis, regurgitation of coveredinthebookcanbedescribed.Thebookis
family and social histories, or intricate psychody- divided into five parts: “General Considerations,”
namic formulations. “The Criminal Process,” “Noncriminal Adjudica-
Adopting these precautions will go far toward tion,” “Children and Families,” and “Communi-
achieving full use of clinical expertise. But we cating with the Courts.”
believethatifmentalhealthprofessionalsaretobe Part I, “General Considerations,” contains five
asusefultothecourtsastheypossiblycanbe,con- chapters examining topics of overarching conse-
ceptualaswellaspracticalstepsneedtobetaken. quencetothebook.Chapter1,“LawandtheMen-
First,it is important for members of both profes- tal Health Professions: An Uneasy Alliance,” sets
sions to develop a better understanding of the the conceptual stage for the rest of the book by
paradigmaticdifferencesbetweenthem.Second,it addressing two central questions, both briefly
iscrucialthatbothgroupsbecomesensitivetothe alluded to above.The first of these focuses on the
ethicalandlegaldilemmasraisedwhenacourtasks implications of the philosophical differences
a member of the “helping”profession to assess the between the legal and mental health professions:
mental condition of a person whose interests may What, if any, are the implications of these differ-
be harmed by the results of the evaluation. encesforclinicalparticipationinthelegalsystem?
Although these issues are most directly addressed Perhapsmembersofthetwoprofessionsaresofar
in Chapters 1 and 4, respectively, they too are apartintheirbasicworldviewsthatunderstanding
interwoven throughout the entire book. oneanotheronanymorethanasuperficiallevelis
Afinalpervasivethemeofthisvolumehastodo a hopeless task. Perhaps their assumptions about
withtheforensicclinician’s“jobdescription.”Ithas the motivations behind human behavior, the con-
become commonplace to characterize the mental ceptof“knowledge,”ortheprocessofdiscovering
healthprofessionalinvolvedinthelegalsystemasa “truth”(tonameafewpointsofcontention)areso
“hired gun.” Assuming, as we feel confident in divergentthatthelaw,ifitistomaintainitsinteg-
assuming,that most professionals honestly believe rity, must either change its basic tenets or refrain
intheirtestimony,itisstilltruethattheadversary from relying on mental health professionals at all.
process tends to define differences sharply. This The second question addressed in Chapter 1
should not mean,however,that clinicians must be assumes that paradigmatic differences can be
pigeonholedasmerepuppetsoftheattorneyswho resolvedshortoftakingeitherofthesetwodrastic
haveretainedthem.Atseveralpointsinthisbook, steps, but is nonetheless also fundamental: Is the
werecommendthatthebestwaytoconceptualize type of information a mental health professional
theclinician’sroleisasanexerciseinconsultation can provide of any use to the legal system,or are
and dissemination of information. That is, the clinical offerings so flimsy that the courts are
mental health professional is often utilized most better off seeking evidence from more traditional
efficientlyinadvisingvariousmembersofthelegal sources? That is, are mental health professionals
system—judges,lawyers,jailpersonnel,orparole really “experts” who can assist factfinders on the
officers—about the behavioral idiosyncrasies of issuesraisedbythelaw?Asnotedabove,underthe
the individual in question. Certainly, this may most modern definition of the term,we think the
involvetestimonyinanadversarialsetting.Butthis answer to this question is a qualified yes, despite
testimony should above all be informative; more- the courts’ increasing insistence on a “scientific”
over, there are other less dramatic ways in which basis for opinion testimony.New with this edition
the clinician as evaluator can aid the legal system is significant commentary on the extent to which
priortoadjudication.Inthisbook,wetrytoiden- this point of view is consistent with the Supreme
tify some of these nontraditional uses of clinical Court’s decision in Daubert v.Dow Chemical and its
expertise. judicial and legislative progeny.
x Preface
Chapter 2,“An Overview of the Legal System: examines the complex,interwoven legal and ethi-
Sources of Law, the Court System, and the cal principles that control the process of
Adjudicative Process,” is on a decidedly different evaluation, ranging from the Fifth Amendment’s
level than Chapter 1, but, like that chapter, its privilege against self-incrimination to the “Tarasoff
objective is to provide a backdrop for subsequent duty”and the confidentiality rule.From the clini-
partstothisbook.Itisessentiallyaprimeronthe cian’s point of view, each of these principles aims
“infrastructure”of the law—where the law comes at answering a single question: “Who is the cli-
from,theproceduresgoverningitsapplication,and ent?” Unfortunately, the answers they suggest
the points at which it seeks clinical testimony. It often conflict. Although this chapter attempts to
has been our experience that concepts considered reconcile the various legal and ethical pressures
part of the lawyer’s daily armamentarium some- on the clinician,it is probably impossible to do so
times befuddle mental health professionals, entirely satisfactorily, at least in the abstract. The
therebyreducingtheireffectivenessasforensiccli- primary goal of the chapter,therefore,is to iden-
nicians.Chapter2providesanswerstoanumberof tify concisely these pressures so that judges, law-
basicquestions:Forexample,whatdoesitmeanto yers, and mental health professionals will be sen-
say that a law is “constitutional”? Is there a differ- sitive to them in individual cases.In pursuing this
ence between a state and federal court? What are goal, the chapter explicitly analyzes the profes-
thestagesofthecriminalprocess,andhowdothey sional guidelines that have been developed since
differfromthestagesof“civil”proceedings?These the last edition.
questions should illuminate the legal arena for the Like the other chapters in Part I, Chapter 5,
clinicianandthusshouldfacilitateinterdisciplinary “Managing Public and Private Forensic Services,”
cooperation. The chapter should also help the deals with issues that affect all of the substantive
mentalhealthprofessionalputincontextthelegal evaluation contexts discussed in Chapters 6
discussions in the following chapters. through 17. It looks at three separate topics. The
Chapter3,“TheNatureandMethodofForensic firstpartofthechapterexaminesdifferenttypesof
Assessment,” describes in more concrete terms systems for delivering forensic evaluations and
than Chapter 1 the “attitude adjustment” that is offers suggestions as to how to implement them.
necessarywhenclinicaltherapistsbecomeforensic The second part is aimed at the individual practi-
evaluators. The chapter begins with a general tioner, providing hints on how to establish and
exploration of the multiple practical differences maintain a forensic “business.” The third part dis-
between a therapeutic and a forensic interview, cusseswaysofdiffusingbehavioralscienceresearch
emphasizingtheinvestigativenatureofthelatter.It to legal policymakers. The overarching theme of
then discusses the limited usefulness, for forensic thechapteristhat,inordertoprotecttheintegrity
purposes, of traditional clinical tools such as psy- of traditional mental health practice,ensure a via-
chological tests and diagnostic procedures, bleforensicsystem,andsystematizethetransferof
describes various ways of gathering all-important behavioral knowledge to the legal system,special-
third-party information,and analyzes a number of ization in forensic work is necessary.
forensic evaluation methods, including selected With the general backdrop provided by Part I,
specialized evaluation protocols, “truth-seeking” the reader is better equipped to tackle specific
devices such as hypnosis and narcoanalysis, and areas of forensic assessment.The next three parts
other procedures for detecting malingering. This ofthebookdealwithover20“substantive”evalua-
edition adds extended commentary on instru- tion areas. Any such treatment of forensic issues
ments and other procedures designed to detect that attempts to be comprehensive must describe
feigning of mental disorder. The chapter ends by basic legal rules and procedures and must recog-
describing the evidentiary rules that govern the nizefundamentalclinicalrealities.Butwehavealso
admissibility of testimony based on use of these tried to add fresh material from the legal,empiri-
techniques. cal, and clinical archives and to mix in our own
Chapter 4,“Constitutional,Common-Law,and insightswhenwethinkwehavesomethingtooffer.
Ethical Contours of the Evaluation Process: The InthebriefdescriptionsofPartsII,III,andIVthat
Mental Health Professional as Double Agent,” follow,theselatteraspectsofthebookareempha-
Preface xi
sized.Thetableofcontentsshouldbeconsultedto involving the waiver of rights like the right to
obtainamorecompleteoverviewofeachchapter’s remain silent or the right to counsel.
scope. Chapter 8, “Mental State at the Time of the
Part II, “The Criminal Process,” is devoted to Offense,” confronts perhaps the core issue of the
psychologicalevaluationsperformedforthecrimi- criminal law: the scope of one’s responsibility for
naljusticesystem.Theclassicexampleofthemen- one’s actions. Because the insanity defense still
tal health profession’s involvement in this system triggersthementalhealthprofession’smostvisible
has been expert testimony about “insanity.” But forensicendeavor,thelegalportionofthischapter
responsibility assessments are only one small is largely a discussion of that doctrine’s historical
aspectofcurrentclinicalparticipationinthecrimi- development,its component parts,and the popu-
nal process. lar myths that surround it. But this part of the
Chapter 6, “Competency to Stand Trial,” dis- chapter also investigates other doctrines relevant
cusses an issue that demands the services of more totheresponsibilityinquiry,suchasthedefensesof
mentalhealthprofessionalseachyearthanallother automatism, diminished capacity (including the
types of criminal evaluations combined. As a way significance of the Supreme Court’s recent deci-
of combating the abuses associated with the huge sion in Clark v.Arizona), and intoxication and the
andeasilymanipulatedsystemthatfitnessdetermi- verdict of guilty but mentally ill.It also addresses
nations have spawned,the chapter emphasizes the theuseofpsychiatrictestimonyinconnectionwith
narrow focus of the competency evaluation and more traditional defenses such as self-defense and
points out the opportunities clinicians have for duress, and tackles the difficult issue of when
consultingwiththelegalprofessionaboutalterna- “character evidence,” independently of other
tivepretrialdispositions.Italsoexaminescritically defenses,shouldbeadmissible.Asinthelegalsec-
the various psychometric instruments designed to tion,theresearchandclinicalsectionsofthischap-
aid in assessing competency, including the instru- ter are particularly careful to address whether
ment devised by the MacArthur Foundation mental health professionals have anything to offer
Research Network on Mental Health and the Law in these areas. To that end, we investigate studies
and other competency-assessment protocols that concerning various novel “syndromes” popularly
have been developed since the last edition. accordedexculpatorysignificance(includingdisso-
Chapter7,“OtherCompetenciesintheCrimi- ciative states and posttraumatic stress disorders);
nal Process,” deals with even less frequently examine research on recently developed tech-
acknowledged areas of clinical input in the crimi- niquesforevaluatingpastmentalimpairment;look
nal justice system. Specifically, it covers compe- at the usefulness of “psychodynamic,” as opposed
tency to consent to a search,competency to con- to “behavioral,” formulations; and offer our own
fess, competency to plead guilty, competency to recommendations for conducting a “reconstruc-
waive one’s right to an attorney, competency to tive” evaluation of mental state at the time of the
refuse an insanity defense, and competency to be offense.
sentenced and executed—subjects not normally The final chapter in Part II, “Sentencing,” con-
addressed in forensic volumes. Added in this edi- siders the area of the criminal law that has long
tion is discussion of new data relevant to the con- beenthoughttobeaspecialpreserveofthemental
duct of competency to confess evaluations and a health professions.Chapter 9 describes the rise of
description of new legal developments in connec- the “rehabilitative ideal,”which led to this notion;
tionwithcompetencytobeexecuted.Thechapter the advent of “determinate” sentencing; and the
alsodiscussescompetencytotestifyandtherelated research suggesting that clinical opinion generally
issue of expert testimony on the credibility of a has minimal impact under either sentencing sys-
witness,both of which arise in the civil as well as tem. Among other revisions, this edition looks
the criminal context. Of particular note is the closelyat“sexualpredator”statutesandnewdevel-
chapter’s attempt to provide some framework for opments in capital sentencing law. The chapter
assessing “voluntariness”—a problematic concept then examines the extent to which clinicians can
forbothlawyersandclinicians,butonethatisnev- offer useful sentencing information, focusing on
ertheless extremely relevant in any situation the three “clinical” issues that most often arise in
xii Preface
thiscontext:amenabilitytotreatment,culpability, two primary systems for reimbursing the individ-
and dangerousness.We pay particular attention to ualinjuredthroughthe“fault”ofanother:workers’
the last of these areas, since much has been said compensationandtortlaw.Bothsystemscompen-
about the “inability” of clinicians to predict vio- sate “mental injury,”but both have great difficulty
lence proneness.We closely examine the research designating the circumstances under which such
on the topic (updated through 2007) and address compensation should occur. This chapter exposes
itsevidentiaryandethicalimplications,concluding the conceptual gap between the legal and clinical
that a combination of clinical, actuarial, and professionsonthekeycompensationissueof“cau-
anamnestic assessment is necessary in this area. sation,” and offers some hints as to how mental
The four chapters in Part III, “Noncriminal health professionals should approach it. Develop-
Adjudication,” leave the criminal arena and deal ments that have tended to restrict recovery for
with contexts that have traditionally been mental injury are highlighted.
described as “civil” in character. As Chapter 10, The final chapter in Part III, “Federal
“Civil Commitment,” makes clear, however, the Antidiscrimination and Entitlement Laws,” is
termisamisnomerwhenappliedtocommitment. largely new with this edition. Chapter 13 focuses
Thedeprivationoflibertyassociatedwithinvolun- on three federal laws—the Americans with Dis-
taryhospitalization—combinedwiththeextensive abilities Act,the Fair Housing Act,and the Social
empirical findings indicating the failure of efforts Security Act—that have a significant impact on
to “legalize” the commitment process and other those suffering from mental disability. The first
data suggesting the relative ineffectiveness of hos- two laws prohibit unnecessary discrimination
pital care—lead us to the conclusion that clinical againstpeoplewithmentalandphysicaldisabilities
participationinthisareashouldbesteepedincau- in the employment and housing contexts. The
tion. Recognizing that professionals must work thirdlaw,whichisofmucholdervintage,provides
withinthecommitmentsystemdespiteitsdefects, thosewhoaremoreseverelydisabledwithamodi-
we criticize the Supreme Court’s decisions relax- cum of financial security (although amendments
ing strictures on the process, recommend an governing eligibility of children significantly
adversarial role for the attorney,and supply clini- diminish this security for that group). After can-
cians with current data on the predictability of vassingthecomplicatedlegalrulescreatedbythese
short-term dangerousness to self and others.This statutes, the chapter details the relatively rigid,
editionalsocontainssignificantadditionalmaterial recently updated, evaluation procedures the gov-
onoutpatientcommitmentandsuicideprediction. ernment has imposed in these areas.
Thechapterendswithadiscussionofcommitment PartIV,“ChildrenandFamilies,”isthelast“sub-
and “special” populations: minors, people with stantive” section of the book, devoted entirely to
mental retardation, prisoners, insanity acquittees, the subject of children’s involvement in the legal
and people who abuse substances. process—a topic that has received considerable
Chapters11and12lookatareasthataremore legal and empirical attention in recent years. Its
accurately deemed “civil” in nature. Chapter 11, first three chapters, entitled “Juvenile Delin-
“Civil Competencies,” discusses a number of con- quency,” “Child Abuse and Neglect,” and “Child
textsinvolvingassessmentsofcurrentfunctioning: Custody in Divorce,”are each organized around a
competencytohandleone’sfinancialandpersonal triad of themes. First, clinicians know very little
affairs(i.e.,guardianship),competencytoconsent about the effectiveness of court dispositions
to treatment (experimental or otherwise), and involving children and families because the topics
competencytomakeawill.AsinChapters6and7 are so difficult to study,given the number of vari-
oncriminalcompetencies,thischapterstressesthe ables involved. For instance, in the typical case
focused nature of the capacity assessment and the there are an infinite variety of dispositions avail-
consultative role available to the clinician; signifi- able,thepossibleinteractionsbetweentheseinter-
cant new research and descriptions of new assess- ventions and the characteristics of children and
ment instruments are reported in this edition. familiesarecomplex,outsidevariablessuchasthe
Chapter 12, “Compensating Mental Injury: impact of teachers can have a major impact, and
Workers’ Compensation and Torts,” describes the any effects discovered may vary enormously over