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Forensic evaluation is an important component in the work of the forensic psychologist, usually working as part of a team of investigators gathering and evaluating evidence before submitting it to the legal process.

In terms of forensic psychology and forensic psychiatry a portion of the work is with mentally ill offenders, assessing their competency to stand trial and considering their suitability for an insanity defence.

Psychologists also expert witnesses, conducting psychological assessments, developing psychodiagnoses and providing psychological reports to the court and contributing expert testimony as required.

Forensic psychologists perform a wide range of tasks within the criminal justice system. By far the largest is that of preparing for and providing testimony in the court room. This task has become increasingly difficult as attorneys have become sophisticated at undermining psychological testimony.[1] Evaluating the client, preparing for testimony, and the testimony itself require the forensic psychologist to have a firm grasp of the law and the legal situation at issue in the courtroom, using the Crime Classification Manual and other sources.[2][3] This knowledge must be integrated with the psychological information obtained from testing, psychological and mental status exams, and appropriate assessment of background materials, such as police reports, prior psychiatric or psychological evaluations, medical records and other available pertinent information.[4]

Malingering

An overriding issue in any type of forensic assessment is the issue of malingering and deception. A defendant may be intentionally faking a mental illness or may be exaggerating the degree of symptomatology. The forensic psychologist must always keep this possibility in mind. It is important if malingering is suspected to observe the defendant in other settings as it is difficult to maintain false symptoms consistently over time.[5] In some cases, the court views malingering or feigning illness as obstruction of justice and sentences the defendant accordingly. In United States v. Binion, malingering or feigning illness during a competency evaluation was held to be obstruction of justice and led to an enhanced sentence.[6] As such, fabricating mental illness in a competency-to-stand-trial assessment now can be raised to enhance the sentencing level following a guilty plea.[7]

Competency evaluations

If there is a question of the accused's competency to stand trial, a forensic psychologist is appointed by the court to examine and assess the individual. The individual may be in custody or may have been released on bail. Based on the forensic assessment, a recommendation is made to the court whether or not the defendant is competent to proceed to trial. If the defendant is considered incompetent to proceed, the report or testimony will include recommendations for the interim period during which an attempt at restoring the individual's competency to understand the court and legal proceedings, as well as participate appropriately in their defense will be made.[8] Often, this is an issue of the defendant complying with prescribed psychiatric medication for a period long enough for the medication to take effect. If the individual does not gain competence after a suitable period of time, that person may be involuntarily committed, on the advice of a forensic psychologist, to a psychiatric treatment facility until such time as the individual is deemed competent.[9]

As a result of Ford v. Wainwright, a case by a Florida inmate on death row that was brought before the Supreme Court of the United States, forensic psychologists are appointed to assess the competency of an inmate to be executed in death penalty cases.[10][11][12]

Sanity evaluations

The forensic psychologist may also be appointed by the court to evaluate the defendant's state of mind at the time of the offense. These are defendants who the judge, prosecutor or public defender believe, through personal interaction with the defendant or through reading the police report, may have been significantly impaired at the time of the offense. In other situations, the defense attorney may decide to have the defendant plead not guilty by reason of insanity. In this case, usually the court appoints forensic evaluators and the defense may hire their own forensic expert. In actual practice, this is rarely a plea in a trial. Usually any judgments about the defendant's state of mind at the time of the offense are made by the court before the trial process begins. [13]

Sentence mitigation

Even in situations where the defendant's mental disorder does not meet the criteria for a not guilty by reason of insanity defense, the defendant's state of mind at the time, as well as relevant past history of mental disorder and psychological abuse can be used to attempt a mitigation of sentence. The forensic psychologist's evaluation and report is an important element in presenting evidence for sentence mitigation. In Hamblin v. Mitchell, 335 F.3d 482 (6th Cir. 2003), the Sixth Circuit Court of Appeals reversed the decision of a lower court because counsel did not thoroughly investigate the defendant's mental history in preparation for the sentencing phase of the trial. Specifically, the court stated that such investigation should include members of the defendant's immediate and extended family, medical history, and family and social history (including physical and mental abuse, domestic violence, exposure to traumatic events and criminal violence).[14] This issue was further addressed in Wiggins v. Smith and Bigby v. Dretke.

Other evaluations

Forensic psychologists are frequently asked to make an assessment of an individual's dangerousness or risk of re-offending. They may provide information and recommendations necessary for sentencing purposes, grants of probation, and the formulation of conditions of parole, which often involves an assessment of the offender's ability to be rehabilitated. They are also asked questions of witness credibility and malingering.[5] Occasionally, they may also provide criminal profiles to law enforcement.[15][16][17]

Due to the Supreme Court decision upholding involuntary commitment laws for predatory sex offenders in Kansas v. Hendricks, it is likely that forensic psychologists will become involved in making recommendations in individual cases of end-of-sentence civil commitment decisions

Distinction between forensic and therapeutic evaluation

A forensic psychologist's interactions with and ethical responsibilities to the client differ widely from those of a psychologist dealing with a client in a clinical setting.[18]

  • Scope. Rather than the broad set of issues a psychologist addresses in a clinical setting, a forensic psychologist addresses a narrowly defined set of events or interactions of a nonclinical nature.
  • Importance of client's perspective. A clinician places primary importance on understanding the client's unique point of view, while the forensic psychologist is interested in accuracy, and the client's viewpoint is secondary.
  • Voluntariness. Usually in a clinical setting a psychologist is dealing with a voluntary client. A forensic psychologist evaluates clients by order of a judge or at the behest of an attorney.
  • Autonomy. Voluntary clients have more latitude and autonomy regarding the assessment's objectives. Any assessment usually takes their concerns into account. The objectives of a forensic examination are confined by the applicable statutes or common law elements that pertain to the legal issue in question.
  • Threats to validity. While the client and therapist are working toward a common goal, although unconscious distortion may occur, in the forensic context there is a substantially greater likelihood of intentional and conscious distortion.
  • Relationship and dynamics. Therapeutic interactions work toward developing a trusting, empathic therapeutic alliance, a forensic psychologist may not ethically nurture the client or act in a "helping" role, as the forensic evaluator had divided loyalties and there are substantial limits on confidentiality he can guarantee the client. A forensic evaluator must always be aware of manipulation in the adversary context of a legal setting. These concerns mandate an emotional distance that is unlike a therapeutic interaction.
  • Pace and setting. Unlike therapeutic interactions which may be guided by many factors, the forensic setting with its court schedules, limited resources, and other external factors, place great time constrains on the evaluation without opportunities for reevaluation. The forensic examiner focuses on the importance of accuracy and the finality

See also


References

  1. Jay, Ziskin (1981). Coping with Psychiatric and Psychological Testimony, 3rd, 372, Venice, CA: Law and Psychology Press.
  2. Douglas, John E. (1992). Crime Classification Manual, New York: Lexington Books.
  3. Bonnie, Richard J. (1997). Criminal Law, Westbury, NY: The Foundation Press.
  4. Cite error: Invalid <ref> tag; no text was provided for refs named shapiro1984
  5. 5.0 5.1 Rogers, Richard (1997). Clinical Assessment of Malingering and Deception, Guilford Press.
  6. Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing. Journal of the American Psychiatric Association. URL accessed on 2007-10-10.
  7. Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing. Journal of the American Psychiatric Association. URL accessed on 2007-10-10.
  8. Cite error: Invalid <ref> tag; no text was provided for refs named shapirointer
  9. Cite error: Invalid <ref> tag; no text was provided for refs named grisso
  10. Executing the Mentally Ill: The Criminal Justice System and the Case of Alvin Ford. Sage Books. URL accessed on 2007-10-03.
  11. Executing the Mentally Ill. Sage. URL accessed on 2007-10-03.
  12. (1986). Ford v. Wainwright, 477 U.S. 399. American Psychological Association. URL accessed on 2007-10-03.
  13. Rogers, Richard (1986). Conducting Insanity Evaluations, New York: Van Nostrand Reinhold.
  14. Defining Counse'Bold textl’s Role in Discovery and Disclosure of Mental Illness - Defense Counsel’s Failure to Investigate and Present Defendant’s Mental Health History in a Death Penalty Trial. Journal of the American Academy of Psychiatry and Law. URL accessed on 2007-10-11.
  15. Holmes, Ronald (1990). Profiling Violent Crimes: An Investigative Tool, Newbury Park, CA: Sage.
  16. Meloy, J. Reid (1998). The Psychology of Stalking, San Diego, CA: Academic Press.
  17. Ressler, Robert K. (1988). Sexual Homicide: Patterns and Motives, Lexington, MA: Lexington Books.
  18. Cite error: Invalid <ref> tag; no text was provided for refs named melton1997
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