Proving Mental
Retardation
in a
Capital Murder Case
Presented at the
31st Annual Symposium of
American College of Forensic
Psychology
March 26, 2015
San Diego, CA
Presenters
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Marc L. Zimmermann, PhD, MP
–  Baton Rouge, LA
Daniel P. Greenfield, MD, MPH
–  Short Hills, NJ
Edward J. Dougherty, EdD
–  Flemington, NJ
Jesse Lambert, PsyD
–  St. Amant, LA
Daryl Renard Atkins v.
Virginia
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Daryl Renard Atkins v.
Virginia
Daryl Renard Atkins v.
Virginia
Decided June 20, 2002 by the U.S. Supreme Court.
Stephens delivered opinion with the concurrence of
O’Connor, Kennedy, Souter, Ginsburg and Breyer.
Declared that execution of mentally
retarded individuals was a violation
of the Eighth Amendment and was
“cruel and unusual punishment.”
Dissenting Rehnquist and Scalia joined by Thomas.
1
Atkins v Virginia
•
Clinical definitions of mental retardation
require not only subaverage intellectual
functioning, but also significant limitations in
adaptive skills.
Atkins V Virginia
Mentally retarded persons frequently know the
difference between right and wrong and are
competent to stand trial,
•
Atkins v Virginia
•
But by definition, they have diminished capacities
to understand and process information, to
communicate, to abstract from mistakes and learn
from experience, to engage in logical reasoning, to
control impulses, and to understand others'
reactions. Their deficiencies do not warrant an
exemption from criminal sanctions, but diminish
their personal culpability.
Atkins v Virginia
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Atkins v Virginia
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DSM IV Definition of mental retardation
–  An
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I.Q. of 70 or less
5 points is allowed for standard error of
measurement (75).
–  Deficits
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–  Onset
Atkins V Virginia
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•
in two areas of adaptive functioning
Communication, self-care, home living, social/
interpersonal skills, use of community resources,
self direction, functional academic skills, work,
leisure, health, and safety.
prior to age 18
Decided using:
WAIS III
AAMR (Now AAIDD) Mental Retardation:
Definition, Classification, and Systems of
Supports 5 (9th ed. 1992)
Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000)
Other scholarly works.
•
States were encouraged to set their own
standards.
“As was our approach in Ford v.
Wainwright, 477 U. S. 399 (1986), with
regard to insanity,
we leave to the State[s] the task of
developing appropriate ways to enforce
the constitutional restriction upon [their]
execution of sentences.”
2
Atkins v Virginia
•
Atkins v Virginia
“. . . a basis for the death penalty applies to
mentally retarded offenders. Gregg v. Georgia,
428 U. S. 153, 183 (1976) ( joint opinion of
Stewart, Powell, and Stevens, JJ.), identified
“retribution and deterrence of capital crimes by
prospective offenders” as the social purposes
served by the death penalty. Unless the
imposition of the death penalty on a mentally
retarded person “measurably contributes to one
or both of these goals, it is nothing more than
the purposeless and needless imposition of pain
and suffering,’ and hence an unconstitutional
punishment.”
•
●  In Justice Scalia’s dissent, he noted:
“Determination of a person’s incapacity is a
matter of great difficulty, partly from the
easiness of counterfeiting this
disability . . . and partly from the variety
of the degrees of this infirmity, whereof
some are sufficient, and some are insufficient to
excuse persons in capital offenses. . . .”
Atkins v Virginia
Atkins v. Virginia
Rehquest’s dissent
indicated :
  “I agree with JUSTICE
SCALIA, post, at 1
(dissenting opinion), . . . I
write separately,
however, to call attention
to the defects in the
Court.s decision to place
weight on foreign laws,
the views of professional
and religious
organizations, and
opinion polls in reaching
its conclusion.”

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While MR/ID is a three prong test,
We are going to focus on the first prong,
documenting an accurate IQ score in the
appropriate range for the diagnosis.
Prong two, demonstrating deficits in adaptive
functioning will be in another presentation.
Freddie Lee Hall v. Florida
Freddie Lee Hall v. Florida
•
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Decided May 27, 2014
5-4.
Kennedy delivered the opinion
of the Court, in which
Ginsburg, Breyer, Sotomayor,
and Kagan joined.
There is no bright-line IQ
cutoff. SEM must be
considered.
3
Hall v Florida
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Alito, filed a
dissenting opinion,
in which Roberts,
Scalia and Thomas,
joined.
Freddie Lee Hall
  While
the Florida legislature passed a law
that would allow for SEM, the courts did not
use this but interpreted the law too narrowly.
Mental Retardation/
Intellectual Disability
Atkins vs. Virginia
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How do you know when an IQ score is accurate,
i.e. a true measure of IQ?
DSM 5
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Mental Retardation has become
Intellectual Disability in DSM 5
Still Mental Retardation in ICD 10
Atkins v Virginia definition (DSM-III)
–  An
IQ of approximately 75 or less.
–  Deficits
–  Onset
of Adaptive Functioning.
prior to age 18.
Which Diagnostic Criteria
should I use ?
B)
DSM III
DSM IV
C)
DSM 5
D)
ICD 10
E)
None of the above
A)
Diagnostic criteria are essentially the same
but much more poorly worded (editorial
comment)
4
LA Criminal Code of
Procedure
Diagnostic Criteria
  Courts
have their own diagnostic criteria.
These come from:

Legislation

Court opinions
Chase v Mississippi
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905.5.1
H.(1) "Mental retardation" means a
disability characterized by significant
limitations in both intellectual functioning
and adaptive behavior as expressed in
conceptual, social, and practical adaptive
skills. The onset must occur before the age
of eighteen years.
Malingering
...a Full Scale IQ score of 75 or lower.
...on the second prong, deficiencies in
adaptive functioning
Essentially the same criteria in DSM
from DSM III (1980) to present.
Malingering
Malingering is not considered a mental illness.
(DSM-5), malingering is a conditions that may
be a focus of clinical attention.
"The essential feature of Malingering is the
intentional production of false or grossly
exaggerated physical or psychological
symptoms, motivated by external incentives
such as avoiding military duty, avoiding work,
obtaining financial compensation, evading
criminal prosecution, or obtaining drugs."
Malingering
  Factitious
Disorder?
IV
  DSM 5
  ICD 10
  DSM
5
Malingering
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Malingering
There are no tests of malingering normed on
mentally retarded/intellectually disabled
individuals.
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How many malingerers were used in norming tests
of malingering?
Malingering
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Is someone simulating malingering the same
as a malingerer?
Malingering
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Malingering
The above being true, how does one prove
mental retardation (IQ)?
Is someone simulating depression the same
as someone who is depressed?
Is someone simulating schizophrenia the
same as someone who is schizophrenic?
Malingering
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Dr. Albert J. Kastl
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Since malingering/effort tests are not normed
for MR/ID,
If real malingerers are not used in norming
the malingering tests,
Will two of these tests yield better results
than one? . . how about three?
What about false positives?
6
Malingering
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Can one malinger and still be retarded/
disabled?
Can one malinger or exaggerate on one test
and not another (even given at the same
setting)?
Testing 101
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To be useful a test must have
–  Reliability
–  Validity
- it measures what it states it
measures
Testing 101
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The first IQ test
was created by
Alfred Binet and
his student
Theodore Simon
and was published
in 1908 and again
in 1911.
Testing 101

Theodore Simon
Testing 101
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Lewis Terman
adapted the
Binet Simon
scales as the
Stanford Binet
in 1916.
– it measures consistently
Testing 101
 The
Wechsler
series began in
1939 with the
Wechsler
Bellevue Scale
by David
Wechsler.
7
Testing 101
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We are now on the cusp of Wechsler Adult
Intelligence Scale 5.
All of these Intellectual ability tests have
built on top of the others and have been
accepted because of reliability and validity
based on the previous measures.
Testing 101
Psychometricians generally regard IQ tests as
having high statistical reliability.
 A high reliability implies that—although testtakers may have varying scores when taking
the same test on differing occasions, and they
may have varying scores when taking different
IQ tests at the same age—the scores generally
agree with one another and across time.
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Testing 101
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Like all statistical quantities, any particular
estimate of IQ has an associated standard
error that measures uncertainty about the
estimate.
Testing 101
•
Testing 101
Testing 101
Standard Error of measurement
Standard Error of measurement

A statistical estimate of the amount of
random error in the assessment of
results or scores.
A test is reliable if it consistently measures a
characteristic, allowing for statistical errors
such as; the Tree Stump Effect of the WAIS III
or Flynn Effect

Non-technical definition
Stolen from Texas Education Agency, 2003

The simplest, most non-technical way to think of
the standard error of measurement is the following:
  If a single student were to take the same test
repeatedly (with no new learning taking place
between testings and no memory of question
effects), the standard deviation of his or her
repeated test scores is denoted as the standard
error of measurement.
8
Testing 101
Testing 101
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  Reliability
  "Yielding
the same or compatible results in
different clinical experiments or statistical
trials"
  In normal language, we use the word
“reliable” to mean that something is
dependable and that it will give the same
outcome every time.
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If malingering/effort tests are not appropriate
for assessing mental retarded/intellectual
disabled persons
If one can malinger on one test and not on
another given at the same testing period
If Dr. Kastl is right (which he always is),
how do we assess for malingering?
How can one get an accurate measure of IQ?
Testing 101
Example
Instrument FSIQ %
Year
Date
Administered Released
Years Since
Normed
Summary
Flynn
Effect
Adjusted %
Score
(.3 X years
since
normed)
WISC-R
68
2
1993
1974
20
6
62
1
WAIS-R*
60
1
1998
1981
18
5
55*
1
WAIS-R*
73
4
1998
1981
18
5
68*
2
WAIS-III
63
1
2005
1997
9
3
60
1
KAIT
65
1
2005
1993
12
4
61
1
Mean
* Tree
Stump
66
1.8
  Assessment
of IQ is objective.
  Consider malingering.
  Criteria vary from state to state.
  Death (execution) is the same.
  Bogus application of psychological science
for legal purposes.
61
* 2.34
9