Introduction to the Legal System
May 12, 2014
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Domains of interaction
 Competency
▪ Criminal
▪ Civil
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Criminal responsibility (MSO)
Mental injury
Profiling, jury selection
Juvenile, family matters
Mental health professionals as experts
Law-mental health organizations
 American Psychology-Law Society (APA Div. 41)
 American Academy of Forensic Psychology
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Training Issues
 few psychologists with specific legal training
 few lawyers knowledgeable about psychology
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Attitudinal Differences
 emphasis on civil liberties vs. trying to help
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Free-Will vs. Determinism
Simple vs. Multiple Causation
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Psychologists and attorneys often
operate according to different
philosophies
Psychologists and attorneys frequently
use evidence differently
Psychologists and attorneys often have
different ideas about causation
Psychologists and attorneys operate
according to different rules
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Free Will vs. Determinism
 can’t differentiate behavior which is “forced”
or “overborne” vs. freely chosen
 example: “voluntary” behavior and the law of
effect
 example: “voluntary” intoxication
Psychological “proof” is probabilistic, rarely
absolute
 Legal “proof” is probabilistic, then absolute
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 Preponderance of evidence (51%)
 Clear and convincing evidence (75%)
 Beyond a reasonable doubt (95%)
 After burden is met, decision is binary and absolute
(absolutely guilty, absolutely liable, etc.)
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Individual with scientific, technical, or other specialized knowledge
or technical who, by nature of knowledge, skill, experience,
education, or training is qualified to render opinions (or otherwise)
that will assist the trier of fact (i.e., judge, jury) in reaching an
appropriate decision in the legal matter at hand. Lay witnesses are
allowed to testify only as to their experiences (perceptions,
observations, memories). Expert witnesses can testify as to
opinions.
Expert testimony must be
 based upon sufficient facts or data
 the product of reliable principles and methods
 the product of applying the principles and methods reliably to the
facts of the case.
Adapted from Federal Rules of Evidence
“In this age of science, we must build legal
foundations that are sound in science as well as in
law. Scientists have offered their help. We in the
legal community should accept that offer. We are in
the process of doing so.”
Associate Justice Stephen Breyer’s “Introduction” in
Reference Manual on Scientific Evidence, Second
Edition (Federal Judicial Center, 2000)
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Differences between clinical and scientific
“opinions”?
Scientific Evidence Standards:
 1975: Publication of Federal Rules of Evidence
 Before 1993:
▪ Frye v. U.S. (1923 Appellate ruling): the “general
acceptance” standard (e.g., Newton’s law vs. moon-behavior
relationship)
 After 1993:
▪ “Supreme Court Trilogy:
▪ Daubert v. Merrell Dow Pharmaceuticals (1993)-evidence standards
▪ General Electric Company v. Joiner (1997)-deductive process/relevance
▪ Kumho Tire Co, LTD v. Carmichael (1999)-not just science, but also
technical
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Frye-1: Fundamental scientific principle
or discovery
Frye-2: The technique used for applying
the fundamental scientific principle or
discovery
Frye-3: The technique’s specific
application on which the expert testimony
is to be based
 Reasoning or methodology underlying testimony must be
“scientifically valid”
 Judge as “gatekeeper”
 “Daubert Criteria” for admissibility
▪ Whether theories or techniques on which testimony rests are based
on a testable hypothesis
▪ Whether the theory or technique has been subjected to peer review
▪ Whether the technique has known or potentially known error rate
▪ Whether the method/theory is generally accepted in the scientific
community
 Discussion point: What are the implications of a “generally
accepted” standard? What does the “known or potentially
known error rate” standard mean? Can we meet it?
Reinforced gatekeeper function of trial judge
Upheld trial court’s refusal to admit certain
testimony because it was not “relevant”
 Thus, not just reliability, but relevance as a
standard
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“[N]othing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence which is
connected to existing data only by the ipse dixit [personal opinion]
of the expert. A court may conclude that there is simply too great
an analytical gap between the data and the opinion proffered.”
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Extended “expert” testimony beyond scientific evidence to all expert
testimony based on “skill-experience-based observation”
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Four Daubert criteria may be relevant, but are not essential; other
factors may be operative in the particular case
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Afterwards, Rule 702 of FRE modified:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods reliably to the
facts in case.
Describing behavioral observation (“he was
yelling”)
 Inferring a general mental state (“he
appeared agitated”)
 Fitting the mental state into a theoretical
construct (“his behavior was consistent with a
dysexecutive syndrome”)
 Diagnosis (“his behavior suggests a personality
change due to organic brain damage in the
frontal lobe”)
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Relating the formulation to legally
relevant behavior (“at the time of the
offense, he was unable to control his violent
impulses”)
 Elements of the ultimate legal issue
(“although he understood right from wrong
when the offense committed, he couldn’t control
his behavior because of brain damage”)
 Ultimate legal issue (“he was insane at the
time of the offense”)
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1) any system of regulations to govern the conduct of the people of
a community, society or nation, in response to the need for
regularity, consistency and justice based upon collective human
experience.
“a principle or rule of conduct so established as to justify a
prediction with reasonable certainty that it will be enforced by the
courts if its authority is challenged”
four main elements:
 rule of conduct
 enforceable
 reasonable certainty
 court system as vehicle for enforcement
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Constitutional Law: overarching; establishes
other types of law; most important
constitutional amendments:
 5th: privilege against self-recrimination
 6th: right to counsel
 14th: right to due process under the law
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Statutory Law: established by legislature
(often at state level)
 some statutes made up by more specialized bodies
(e.g., DHHS)
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Case Law: decisions made by judiciary
and used as precedent (e.g., Frye, Dusky)
 not just interpretation, but makes suggestions
(e.g., when law is found unconstitutional)
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Administrative Law: rules and
regulations constructed by executive
branch
Basic elements: legislature (‘makes law’),
executive (‘enforces law’), judiciary (‘interprets
law’), but there are exceptions
 Criminal law: handled by states, unless a
federal crime
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 interstate cimes
 offenses targeting federal official
 violations of civil rights law
 offenses on, or involving, federal property
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Federal Courts
 Trial court: district court is trial court (N=94)
 Appellate court: 2 levels: Circuit Court of Appeals (Atlanta; one
of 13); US Supreme Court
State Judicial System (Florida)
 Trial court: circuit court is trial court (N=20)
▪ 2 levels of general jurisdiction trial courts (minor, major
criminal/civil)
▪ special jurisdiction courts (“juvenile court”, “divorce court”)
 Appellate court: 2 levels: District Court of Appeals, State
Supreme Court
County Courts (N = 67)
 Disputes of $15K or less
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Criminal vs. Civil:
 criminal: US/state v. individual
 civil: individual v. individual (contracts, property,
torts, wills)
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Substantive vs. procedural:
 substantive: rights, duties/responsibilities
 procedural: how substantive law is applied
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Statutory vs. Common
 statutory: established by legislatures
 common: established by judges (precedent)
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“Crime” is any act or omission of an act in violation
of a public law
 Focus on harming public safety/welfare
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Levels of criminal activity
 Felony (more serious > 1 year)
 Misdemeanor (less serious > 5 days)
 Violation (e.g., traffic)
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States develop criminal statutes; but there is a
“Model Penal Code” (ALI, 1962/1981)
 Assists states in standardizing penal code
 Specifies ‘mens rae’ conditions
 That which is not forbidden is allowed
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Governs private relationships between
members of a community, or the rights of
individual, private citizens
 Civil Commitment
 Guardianship
 Wills and probate
 Tort law
Criminal: beyond reasonable doubt;
burden on prosecution
 Civil: preponderance of evidence, burden
on plaintiff
 Administrative: clear and convincing;
burden on plaintiff
 ‘Quasi-Criminal’: involving significant
deprivation of liberty (e.g., civil
commitment); clear and convincing evidence
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Understand the legal system
Practice good neuropsychology/clinical
psychology
Adhere to ethical principles
Be courtroom familiar/saavy
Greiffenstein & Cohen, 2005
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Preassessment phase
 What’s the case about?
 What’s my role?
▪ Fact witness
▪ Expert witness
▪ Litigation consultant
 What’s the time-frame?
 Availability of the plaintiff/defendant?
 Fee schedule
Greiffenstein & Cohen, 2005
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Assessment Phase
 Review of outside records
 Direct interview
 Collateral report
 Neuropsychological testing
 Specialized testing
Greiffenstein & Cohen, 2005
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Report-writing
 Differences between clinical and forensic reports
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Focus on legally relevant factors
Limit discussion of irrelevant background info
Full disclosure of information sources
Discriminate opinion/conclusions from facts
 Key features
▪ Causation analysis
▪ Functional analysis
▪ Accurate attribution of facts
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Trial Phase
 Discovery
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Interrogatories
Affadavits
Depositions
Records exchange
 Admissibility (see previous discussion)
 Deposition/testimony
▪ Qualification
▪ Direct Examination
▪ Cross-Examination
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Post-Trial Phase
Greiffenstein & Cohen, 2005