Forensic Neuropsychology
Introduction to the Legal System
May 25, 2006
Law and Mental Health

Domains of interaction
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competency
criminal responsibility
mental injury
juvenile, family matters
Mental health professionals as experts
 Law-mental health organizations

– American Psychology-Law Society (APA Div. 41)
– American Academy of Forensic Psychology
Lawyer-Psychologist Interactions
 Training
Issues
– few psychologists with specific legal training
– few lawyers knowledgeable about psychology
 Attitudinal
Differences
– emphasis on civil liberties vs. trying to help
 Free-Will
vs. Determinism
 Simple vs. Multiple Causation
When Worlds Collide
 Psychologists
and attorneys often
operate according to different
philosophies
 Psychologists and attorneys frequently
use evidence differently
 Psychologists and attorneys often have
different ideas about causation
 Psychologists and attorneys operate
according to different rules
Paradigm Conflicts

Free Will vs. Determinism
– can’t differentiate behavior which is
“forced” or “overborne” vs. freely chosen
– example: “voluntary” behavior and the
law of effect
– example: “voluntary” intoxication
Probability Conflicts
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.)
Definition of Expert Witness

Individual who, by nature of education,
experience, or training, is qualified to render
opinions that will assist the trier of fact (i.e.,
judge, jury) in reaching an appropriate
decision in the legal matter at hand. Lay
witnesses are allowed to testify only as to
their experiences (perceptions, observations,
memories). Expert witnesses can testify as
to opinions.
Adapted from FRE
“In this age of science, we must build legal
foundations that are sound in science as well as in
law. Scientists have offered their help. We in the
legal community should accept that offer. We are in
the process of doing so.”
—Associate Justice Stephen Breyer “Introduction” in
Reference Manual on Scientific Evidence, Second
Edition (Federal Judicial Center, 2000)
Scientific Evidence and Experts
Differences between clinical and scientific
“opinions” (wisdom v. fact, others?)
 Scientific Evidence Standards:

– 1975: Publication of Federal Rules of Evidence
– Before 1993:
» Frye v. U.S. (1923 Appellate ruling): the “general
acceptance” standard (e.g., Newton’s law vs. moonbehavior relationship)
– After 1993:
» “Supreme Court Trilogy:



Daubert v. Merrell Dow Pharmaceuticals (1993)-evidence
standards
General Electric Company v. Joiner (1997)-deductive process
Kumho Tire Co, LTD v. Carmichael (1999)-not just science, but
also technical
Frye Standards
 Frye-1:
Fundamental scientific principle
or 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
Daubert v. Merrell Dow
– Reasoning or methodology underlying testimony
must be “scientifically valid”
– Judge as “gatekeeper”
– “Daubert Criteria” for admissability
» Whether theories or techniques on which testimony rests
are based on a testable hypothesis
» Whether the theory or technique has been subjected to
peer review
» Whether the technique has known or potentially known
error rate
» Whether the method/theory is generally accepted in the
scientific community
– Discussion point: What are the implications of a
“generally accepted” standard?
General Electric v. Joiner
 Reinforced
gatekeeper function of trial judge
 Upheld trial court’s refusal to admit certain
testimony because it was not “relevant”
 Thus, not just reliability, but relevance as a
standard

“[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.”
Kumho Tire v. Carmichael
Extended “expert” testimony beyond scientific
evidence to all expert testimony based on
“skill-experience-based observation”
 Four Daubert criteria may be relevant, but
are not essential; other factors may be
operative in the particular case
 Afterwards, Rule 702 of FRE modified:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods,and (3) the witness has applied
the principles and methods reliably to the facts in case.
Clinical Levels of Inference in
Expert Testimony
Describing behavioral observation (“he
was yelling”)
 Inferring a general mental state (“he
was disinhibited”)
 Fitting the mental state into a
theoretical construct (“his behavior was
consistent with a frontal syndrome”)
 Diagnosis (“his behavior suggests a
personality change due to organic brain
damage”

Levels of Inference (cont’d)
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”)

What is law?
 “a
principle or rule of conduct so
established as to justify a prediction with
reasonable certainty that it will be enforced
by the courts if its authority is challenged”
 four main elements:
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rule of conduct
enforceable
reasonable certainty
enforcement through the courts
Types of Law

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

Statutory Law: established by legislature (often
at state level)
– some statues made up by more specialized bodies (e.g.,
DHHS)
Types of Law (cont’d)
 Case
Law: decisions made by judiciary
and used as precedent (e.g., Frye, Dusky)
– not just interpretation, but makes suggestions
(e.g., when law is found unconstitutional)
 Administrative
Law: rules and
regulations constructed by executive branch
Basic Structure of Court System
Basic elements: legislature (‘makes law’),
executive (‘enforces law’), judiciary (‘interprets
law’), but there are exceptions
 Criminal law: handled by states, unless a federal
crime
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interstate cimes
offenses targeting federal official
violations of civil rights law
offenses on, or involving, federal property
Classifications of Law
 Criminal
vs. Civil:
– criminal: state v. individual
– civil: individual v. individual (contracts,
property, torts, wills)
 Substantive
vs. procedural:
– substantive: rights, duties/responsibilities
– procedural: how substantive law is applied
Criminal Law
 “Crime”
is any act or omission of an act in
violation of a public law
 Levels of criminal activity
– Felony
– Misdemeanor
 States
develop criminal statutes; but there is
a “Model Penal Code”
Civil Law
 Commitment
 Guardianship
 Wills
and probate
 Tort law
Basic Court Structure (cont’d)


Federal Courts
– Trial court: district court is trial court (Florida has 8 districts)
– Appellate court: 2 levels: Circuit Court of Appeals (Atlanta; one
of 12); US Supreme Court
State Judicial System
– Trial court:
» 2 levels of general jurisdiction trial courts (minor, major
criminal/civil)
» special jurisdiction courts (“juvenile court”, “divorce court”)
– Appellate court: 2 levels: District Court of Appeals, State
Supreme Court
Types of Judicial Proceedings
 Criminal:
beyond reasonable doubt; burden on
prosecution
 Civil: preponderance of evidence, burden on
plaintiff
 Administrative: clear and convincing; burden on
plaintiff
 ‘Quasi-Criminal’: involving significant
deprivation of liberty (e.g., commitment); clear
and convincing evidence
Basic Principles of PsychologistAttorney Interactions
 Understand
the legal system
 Practice good neuropsychology/clinical
psychology
 Adhere to ethical principles
 Be courtroom familiar/saavy
Greiffenstein & Cohen, 2005
Phases of Attorney-Psychologist
Interaction
 Preassessment
phase
– 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
Phases of Attorney-Psychologist
Interaction (cont’d)
 Assessment
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Phase
Review of outside records
Direct interview
Collateral report
Neuropsychological testing
Specialized testing
Greiffenstein & Cohen, 2005
Phases of Attorney-Psychologist
Interaction (cont’d)
 Report-writing
– Differences between clinical and forensic
reports (see Greiffenstein & Cohen, 2005, p.
59)
Phases of Attorney-Psychologist
Interaction (cont’d)

Trial Phase
– Discovery
» Interrogatories
» Depositions
» Records exchange
– Admissibility (see previous discussion)
– Deposition/testimony
» Qualification
» Direct Examination
» Cross-Examination

Post-Trial Phase
Greiffenstein & Cohen, 2005