Do Not Be AFRAID

Psych ExpertCross Examination Cross Examination

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Pedophilia Pedophilia

6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child (13 or under)

These urges cause clinically significant distress or impairment in social, occupational or other important areas of functioning

The person is at least 16 and 5 or more years older than child

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A psychiatrist, “if (s)he is scrupulously honest,” when asked to describe the “manner in which the (defendant’s mental) abnormality affected those mental and emotional processes relevant to the criminal act, “will limit himself to a statement along these lines: “the abnormality has substantially affected his mental or emotional processes in ways which I find difficult to understand and explain to you and his has possibly, but maybe not, substantially affected his behavior controls in ways which could be, but are not necessarily, relevant to the criminal act of which he is accused...”Diamond, From Durham to Brawner: A Futile Journey, Wash. Univ. Law Quarterly, Vol. 1973: 109, at 114.

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No expert with respect to the mental state of condition of a defendant ...may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Those matters are for the trier of fact. SURE

Rule 704Rule 704

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Not NEUTRALPay Little Attention to TRUE factsBenignly or purposefully ignore the truthNOT SCIENTIFIC

Defense Psych Expert Defense Psych Expert

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Defense Psych Expert Defense Psych Expert

Opinion is just that, theirs alonePsychiatry and Psychology is NOT sciencePsych diagnoses are subjectivePsych diagnoses are speculativePsych diagnoses are inherently unreliable

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Cross Examination Cross Examination

PreparationPsych formulations is art, not scienceExperts cannot reliably diagnose current mental illness Retrospective diagnosis almost impossibleNO SCIENTIFIC TEST to demonstrate competency/sanity/mental illness

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Ziskin and Faust, Coping with Psychiatric and Psychological Testimony, 4th Edition (1988 Law and Psychology Press.)

T.Szaz, Myth of Mental Illnes (1974)Harper and Row

Ennis and Litwak, Flipping Coins in the Courtroom (1964, 62 Cal.Law Review p.693

D. Rosenhan, “On Being Sane in Insane Places, (1973, Science, Vol.17 and 13 Santa Clara Law Review)

R. Rogers, Clinical Assessment of Malingering and Deception (1988 The Guilford Press)

S. Brodsky, Testifying in Court (Guidelines for the Expert Wit) APA 1991 must read!! Tells experts how to testify!

Required Reading Required Reading

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Required Reading Required Reading

H. Kutchins and Kirk, Making us Crazy-DSM The psychiatric Bible and creation of Mental Disorders (1997 The Free Press)

M. Hagen, Whores of the Court: THe fraud of Psychiatric Testimony and the Rape of American Justice (1997, Regan Books)

O’Hare, Distrubing World of Psychopaths among us.

DSM IV

R. Slovenko, Psychiatry and Law, Little, Brown and Co. 1973, p. 33

Scher, Expertise and the Post Hoc Judgement of Insanity..., 57 Northwestern Univ. Law Review, Vol.4 (1963-1963)

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INSANITYINSANITY

NO Test in Science to Determine InsanityInsanity is a moral and legal test, not a scientific or medical test, correct?

How many classes in medical school did you take on this state’s sanity test?

Can you name just one scientific test that can accurately and reliably determine if a person is sane or insane presently?

Can you identify one objective and scientific test which can determine if a person was sane or insane when he committed ......? There is not one, correct?

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InsanityInsanityCan you actually state, to a reasonable degree of medical certainty, that the defendant did not know it was legally or morally wrong to ....?

If yes, what scientific test do you base that on?

What do you believe the phrase “nature and quality of his act means in the law of sanity?

Where get that definition?

Did you make it up?

Defendant killed a human being?

It would be important to know if the defendant understood the act of murder involves the killing of a human being?

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Insanity Insanity He didn’t kill a car, or a fire hydrant right?

When he killed, he chose the right implement to kill with, right?

Wouldn’t the proper choice of a killing weapon demonstrate that the defendant was capable of understanding the nature of his act?

He chose a lethal weapon right? (Gun, Knife etc)

He had enough mental wherewithal not to try to kill with a fly swatter right?

If the question is whether the defendant understood the quality of killing, it would be important to know whether he (shot/stabbed) the v in a lethal area of the body?

He shot/stabbed the victim in the chest/head? Not foot?

Is there any question in your mind D chose the area of body that would kill?

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Cross of Defense Expert Cross of Defense Expert 803(13) Learned TreatisesCan cross on articles the witness did not consider. Can be admitted for the truth if The statements are established as reliable by testimony or judicial notice or Treatise we relied upon by an expert Confront the expert with the treatise.

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Cross of Defense expertCross of Defense expert

Send them any treatises you want them to consider Tell them what you want them to focus onSend by registered letter

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Cross of Defense ExpertCross of Defense Expert

To do the money dance or not?If Court appointed and jury told--NOCourt appointed? % of income from testimonyPrivately Retained? How much/hour Total

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Case Prep AT THE LEAST Case Prep AT THE LEAST Complete set of reportsBoth state and federal rap sheetsJuvenile historyAll reports from each and every arrest All records of adjudication, include probation reports and psych records not under seal All DA files on each case School records, including any psych testing records

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CASE PREPCASE PREPInterviews with, family, friends, neighbors, co-workers, bosses, school mates, teachers, anyone who would know D’s day to day functioningAll military recordsAny family court files: divorce, child custodyAll jail/prison recordsJail visitor recordsAny removal orders for mental testing etc

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Case Prep REQUESTS TO Case Prep REQUESTS TO DEFENSEDEFENSEAll witnesses civilian/experts to be called Resume/CV of each expert--THEN CHECK IT! As to expertswritten reports raw notes/tapes or notes of interviewstests administered with raw data and results any other reports relied upon by expert and source

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DiagnosisDiagnosisMust become an expertObtain any tx’s of experts testimonyObtain any writings, publications or presentations Call other prosecutors re: expertAny tests given, get testing protocols Validation groups for tests--Example MMPIResearch claimed mental illness

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Becoming an expert Becoming an expert Research diagnosis in DSM IVResearch each test in Burrough’s Mental Measurement Yearbook and ZiskinResearch alternative Diagnosis in DSM IV including antisocial personality disorderResearch Malingering

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Becoming an expert Anti-Social Becoming an expert Anti-Social Pattern of disregard for and violation of rights of others since 15 (at least 3 of following )

Failure to follow norms with lawful behavior by committing crimes

Deceitfulness, as indicated by repeated lying, use of aliases or conning others for profit or pleasure

impulsivity or failure to plan ahead

irritability and aggressiveness, evidenced by fights/assaults

reckless disregard for safety of self or others

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Anti-Social DisorderAnti-Social Disorder

Irresponsibility indicated by failure to sustain consistent work or honor financial commitments

lack of remorse

at least 18 years old

not all behavior during manic episodes or due to schizophrenia

started before 15

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Tactical Considerations Tactical Considerations Run naked or Battle of Experts If you go crash and burn and run naked you cannot call your own expert. If you run naked and you want to rely on a court appointed doc you cannot do crash and burn.

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Voir Dire Voir Dire

Consistent with your strategyBe careful--people see therapists, will not tell you

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Voir Dire Examples Voir Dire Examples Have you/family/friends been treated by psych? Counseling in the mental health field?Do you have opinions about psychs in courtroom?Do you believe psychology is an exact science?Have you read anything about controversies over psychs testifying in criminal court?Have you ever sought a second opinion from a doctor?

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Voir Dire ExamplesVoir Dire ExamplesWould you agree a psych can be wrong?

Do you believe a psych is better able to tell whether someone is lying than you? If yes, why?

Would you agree an expert opinion is only as good as the facts on which opinion is based?

If you were satisfied after hearing all evidence that the opinion of expert were wrong, would you have any difficulty rejecting that opinion?

Have you every known anybody to fake being sick to avoid responsibility?

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Cross PlanCross PlanInformation available to expertqualificationsbiases--therapeutic, philosophical, moneycredibility“science”inability accurately diagnose present or past mental statesfailure to consider alternative diagnosis (psychopath)

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Cross PlanCross Planinappropriate use of legal construction (insanity)lack of reliable factual data to support ultimate opinion

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BIAS --Retained expert BIAS --Retained expert Point out how not appointed by courtVast majority of work done for defense Money danceHourly rate/#of hours spent on case to dateHow little time actually spent with DNever consulted you, called cops, witnesses Out of town expert--have opinion will travel!

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Attack “Science”Attack “Science”Agree with me doc that this is not an exact scienceWould agree there is considerable controversy as to whether psychs can reliably and accurately diagnose mental illness.You are familiar with studies wherein that inability has been discussed.Have you read and considered studies by Dr. David Rosenhan from Stanford University as published in an article called On Being Sane in Insane Places?

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Attack “ScienceAttack “ScienceThe Rosenhan study established a 100% diagnostic failure rate on the part of mental health experts?

8 people presented themselves to mental institutions claiming to hear voices. All were diagnosed as schizophrenics right?

Every single one was incorrectly diagnosed, right?

In fact, the goal of the study was to show how accurate mental health professionals were, right?

In fact, the patients figured out these people weren’t mentally ill before the doctors did?

You still say you can psychs are accurate?

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Attack “Science”Attack “Science”You have read Dr. Bernard Diamond and considered his criticisms concerning reliability of psych judgements?

Dr. Diamond is an eminent authority in the field of forensic psychiatry right?

Read quote from first slide--do you agree/ why not?

Professor Ralph Slovenko has written in the area of the lack of objectivity and imprecision involved in psych diagnosis?

Do you agree with Professor Slovenko that psych diagnosis is subjective?

Subjective means not scientifically objective?

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Attack “Science” Attack “Science” Do you agree with this quote from Professor Slovenko, “a diagnostic framework suitable for treatment or research may be quite inappropriate for forensic purposes. The mere fact that diagnostic categories exist does not man that they represent objective facts, or they must be used in the law.”

In fact that position is shared by the American Psychiatric Association, right?

You would agree, that your diagnosis is not scientific and that another psych could evaluate this person and come to a different conclusion.

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Attack “Science of Attack “Science of Postdictions”Postdictions”Would you agree with this quote from Dr. Scher, It is patently absurd to attempt to determine the state of mind of an individual at sometime in the near or distant past...and that a forensic psychiatrist should not acquies to try.

Then go over the data relied on by expert.

Go over what D told doc--any differences from true facts

Then go over whether the doc took lies from D into account

Then go over every lie D ever told

Point out D has every motive to lie

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Post Diction Post Diction Point out the questions psych didn’t ask

Did you know it was wrong when you shot the guy?

If you didn’t think it was wrong, why did you run?

Why did you discard the weapon?

Point out the psych either ignored or intentionally overlooked all the evidence which shows d’s story is garbage.

Point out psych did no independent investigation to show whether D was lying and has a history of lying--they never do!

Pay close attention to whether the psych escalates what D actually said or glosses over damaging admissions.

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Post DictionPost DictionUSE REAL EVIDENCE to show mental illness had no bearing on crimeEvidence of

Motive

Pre-existing animus

Pre-offense preparation ie arming etc.

Appropriate victim selection

Ability to carry out crime

Post commission flight/coverup/other consciousness of guilt

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Ultimate OpinionUltimate Opinion

If psych wants to give opinion as to sanityRemind it is a legal/moral concept, not medicalNo test to determine sanityOpinion violates American Psychiatric Association tenants

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DSM-IVDSM-IVCautionary Statement--committeesAlso, inclusion does not mean it meets legal criteriaIntroduction---Significant danger of misuse of DSMIV in legal settings Page 683--Malingering, know it. Especially #1If referred by attorney or court, Clinician should STRONGLY SUSPECT malingering#4 Anti-Social Personality Disorder (Psychopath)

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TESTS TESTS MMPI-2 has some problemsControl Group--1940s Minnesotans, all relatives of criminally insane

All refinements are based on that control group

All true false, some answers will vary by age, some by faking, go through some of the questions:

249: My eyesight is as good as it has been for years. Test taker young or old?

24: Evil spirits possess me at times. What do you think your malingerer will answer? Or if someone is seeking to seem normal will answer?

128: I like to cook. ????? How is that relevant for our purposes?

166: I am worried about sex. Who isn’t?

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