Mental Health and Law

Posted by permission of Dr. Thomas O’Connor. Copyright by T. O’Connor.

“Mental health problems do not affect three out of four persons but one out of one.” William Menninger

This lecture emphasizes psychological reportwriting, psychological testing, and the use of forensic classificationand evaluation instruments in the clinical mental health (non-academic) setting.What appears on this page is intended to follow-up on the more basic Forensic Psychology lecture.

There’s no one “perfect”way to write a psychological report, despite dozens of guides on how to do it.The problem is that there are numerous “how-to” guides but few, ifany, resources on “why” or the theory of it. Another problem is thatthere are no specific psychological tools that clearly apply to theforensic arena. In other words, there are no psychological tests thatspecifically test for forensic issues. For example, there’s no such thingas an “incompetency to stand trial” paper and pencil test, nor ones for”insanity” (a legal concept), “potential forrehabilitation”, or “potential for violence.” All that psychologyhas to offer is indirect, imperfect tools, at best. It all depends upon thepractitioner and how knowledgeable he/she is in certain content areas, and whatthe law expects from them.

A SHORT HISTORY OF FORENSIC PSYCHOLOGY

Forensic psychologists achieved almost thesame legal status as psychiatrists in 1962 when Judge David Bazelon (in Jenkinsv. US 307 F. 2d 637) declared, over the objections of the APA, that apsychologist was competent to testify as an expert witness on the presence orabsence of mental disease or defect. Judge Bazelon said that it depended uponthe actual experience of the witness and the probative value of his/her opinion.This decision, from a prominent judge, was a landmark for forensic psychology,which had only previously been involved in eyewitness reliability. After 1962,the door was open to all sorts of forensic issues, such as the controversial”malingering” diagnosis, numerous attempts to clinically predictviolence, various competency opinions, and the thing that probably made policehate psychologists the most — testimony about who was capable of appreciatingtheir rights in custody, which culminated in Miranda waiver decisions. Indeed,forensic psychology impacted some significant legal reforms in the 1960s.

A rash of “syndromes” as noveldefenses appeared in the 1970s as part of what might be called the”diminished capacity” movement, a concept introduced by the ALI(American Law Institute) in the Model Penal Code of the late 1960s. Some statesdon’t recognize diminished capacity, which is theoretically a state in-betweensane and insane, but most jurisdictions allow syndromes to serve as factors inmitigation, resulting in a lighter, or reduced sentence. Some mental healthsyndromes are bizarre, such as the Twinkie defense, but they do result inshorter prison terms for those who raise them. Juries seem able to relate.

In the 1980s, the key event was JohnHinckley’s assassination attempt on President Reagan. It was witnessed on TV bymillions of viewers, but a jury acquitted Hinckley on a verdict of not guilty byreason of insanity. The nation was outraged, and jurisdictions all acrossAmerica shifted the burden of proving insanity from the state to the defenseand/or devised new, revised verdict options of guilty but insane. Forensicpsychologists were quite active in those days, busy defending their turf andpractices.

The 1990s saw the emergence ofprofessional standards in mental health and law. It’s now considered a”growth area” for all sorts of legal concepts such as:

• appreciation – intellectual awareness, intelligence, maturity, morality

• capacity – mental functioning, perception, consciousness, memory, understanding, reality testing, judgment

• conformity – disease or defect, delusional or bizarre thinking, cognitive defect, retardation

• impairment – loss of control, addiction or dependency, psychosis, major mental illness

• wrongfulness – impaired ability to tell right from wrong, sociopathy, psychopathy, APD

The important qualifier is”substantial” since most laws require the mental impairment, diseaseor defect to be substantial, a qualitative distinctionthat depends on the case and the circumstances (a situational characteristicthat distinguishes legal concepts from psychological concepts). There are noclear guidelines in forensic psychology (even in the code of ethics) fordetermining what “substantial” means. It has been defined as”what would convince the unprejudiced mind of a qualified psychologist ofthe authenticity and proof of a clinical fact.” The renowned DSM-IV(Diagnostic and Statistical Manual) is of little help, either, since it doesn’tuse the word “substantial”, only the word “severe”, andcourts don’t accept severe as automatically substantial. Instead, courts relyupon well-documented and well-presented reports and evaluations. Hence, theimportance of psychological report writing.

PSYCHOLOGICAL EVALUATION

A well-written psychological report is anX-ray of the personality. It should explain to the reader whatpersonality dynamics are going on at a level below the manifest personality orthe behavior. Hypothesis testing is expected; hunches are not allowed.Everything should be based on objective data. The evaluation should also producefirm conclusions or recommendations. There’s no room for wishy-washy language.

There are three (3) sources of informationthat the psychologist has to work with:

                                        / BEHAVIORAL OBSERVATIONS  
 CLINICAL HISTORY         MENTAL STATUS EXAM       /     TEST DATA 
                                                                |                                   / 
                                                                |                                  / 
                                                                |                                 / 
                                                                |                                / 
                                                                |                              / 

                                                     CONCLUSIONS 

With CLINICAL HISTORY, all sorts ofbackground information is available, including social, legal, medical, andmental health. Medication history is especially important, as is family mentalhealth history. The MENTAL STATUS EXAM involves the psychologist’s personalobservations and impressions. The most important part of a MSE is not to trustthe patient’s own opinion of their mood. That’s why psychologists use words like”flat”, “shallow”, or “elevated” to describe moodand/or affect. TEST DATA will consist of whatever psychometrics are done,such as the MCMI-III, the MMPI-2, or the MMSE (Mini-Mental State Examination, illustrated below). It’s often the case that test data areadministered by a separate professional, called a psychometrician, who may ormay not be involved in the interpretation. Rarely should a report be based ononly one single test. Some psychologists prefer a “domain” approachwhere different testing instruments reveal different aspects of the personality.For example, a Rorschach ink blot test taps a different dimension of personalitythan the MMPI, and the MMSE focuses precisely in on the severity of cognitive impairment. Medications that a person is on at the time of testing should be reported, and, of course, protocol and rapport-building is always important during the administration of any psychometric instrument.

The Mini-Mental State Examination (MMSE)

Perhaps the most commonly seen psychometric instrument in all of mental health, an exact copy of the MMSE (this is an adapted version) is the 1998 copyright of Mini Mental LLC, but varieties exist, and the published literature on the subject goes back to 1975 when it was first theorized to be the quickest and easiest way to grade cognitive states. It is today the leading instrument for measuring cognitive and functional deterioration with progressive diseases like Alzheimer’s and dementia. The instructions are to Make the patient comfortable and establish rapport. Ask questions in the order listed. Total possible score=30 points.

ORIENTATION (5pts each question)
1. What is the (year) (season) (date) (day) (month)
2. Where are we? (state) (country) (town or city) (name of hospital) (floor)
REGISTRATION (3pts possible)
3. Say the names of three unrelated objects (e.g. book, ant, cloud), and ask the patient to repeat them. The first repetition determines the score, but up to six trials are allowed.
ATTENTION & CALCULATION (5pts possible)
4. Ask the patient to count backwards from 100 by 7, and score the first five substractions. If the patient cannot or will not perform the serial 7s, then ask them to spell the word “WORLD” backwards.
RECALL (3pts possible)
5. Repeat the task under “Registration” in step 3, and see if the patient remembers.
LANGUAGE
6. Naming(2pts): Show the patient some object (such as desktop ornament) and ask them what it is.
7. Repetition(1pt): Ask the patient to repeat some fairly hard-to-pronounce phrase.
8. 3-Stage Command(3pts): Point some object out to the patient, and ask them to do three things with it.
9. Reading(1pt): Write a simple command on a piece of paper, and ask the patient to read it and do what it says.
10. Writing(1pt): Ask the patient to write a spontaneous sentence.
11. Copying(1pt): Ask the patient to copy a drawing of two intersecting geographic shapes.

It is important to note the differencebetween responsibility and competency(both legal concepts). Responsibility refers to mental state at the time of theoffense. Competency refers to abilities at the present time. Psychologists areoften asked to work backwards from competency to responsibility. The two shouldbe kept separate, however, to avoid mixing background and foregroundinformation. On the other hand, if the patient has a history of being in and outof treatment (or in and out of trouble with the law), one can infer certainlong-term patterns (or velocities) from coping behaviors between treatments.Evidence rules may prohibit such inferences, however, from being admitted in acourt of law. Criminal law, however, differs from civillaw precisely in that with criminal dangerousness, the evaluator canpresume at least one previous act of dangerousness while with civil law (andcivil commitment standards of dangerousness), there is no such presumption, andthe determination of dangerousness must be based on anticipatory harm or danger.

It’s also important to note the differencebetween prediction and assessment of risk.Mental health professionals are often drawn unwittingly into statements ofprediction, which are yes-no statements across time and circumstances. Risk is amuch safer term, especially when couched in terms of relative risk (givenvarious environmental factors, such as maintenance of treatment contact, familysupport, etc.) which is future-oriented, but not the same as prediction.

Child custodyevaluations are somewhat different. In these cases, the psychologist isevaluating a whole set of relationships, a whole family history. When childabuse is involved, the evaluator’s recommendations will usually carry the fullweight of a decision. In short, predictions are expected, and even morethan that, often statements about past, present, and future personalitydynamics. This is because the evaluator is expected to be biased “in thebest interests of the child”, a legal standard that replaced the”tender years doctrine” sometime in the late 1960s.

Perhaps the best examples of theevaluation process can be found in the areas of malingeringand workers’ compensation cases. Malingering is a military term for avoiding military duty, but it has come to refer to any presenting of self as disabled to achieve some identifiable goal or benefit, usually of a financial nature. I say it’s a good example of the evaluation process because the evaluator must systematically, through a process of elimination, rule out all sorts of alternative hypotheses, one-by-one. That is, you first rule out the psychoses, then the neuroses, then the personality disorders, etc., etc. until you are left with nothing in the DSM IV to diagnose the person with. All well-written psychological reports will contain at least a “differential diagnosis” section, and an explanation of why or why not it applies and/or what else can be ruled out. Workers’ compensation evaluations also deal with malingering or secondary gain, but what’s exemplary about them are “apportionment” guidelines (how much a pre-existing condition contributed to a disability) and the fairly quantitative way serious, severe, and substantial impairment levels are tied to specific benefit amounts (a fingertip is worth $5000, for example). Forensic crime-related assessment, however, rarely has such clarity and exactness, as the difficulty of the following assignment illustrates:

PSYCHOLOGICAL REPORT WRITING

The proper format for a psychologicalreport contains the following section headings:

• TITLE AND DEMOGRAPHICS

• REASON FOR REFERRAL

• ASSESSMENT PROCEDURES

• SOCIAL HISTORY

• BEHAVIORAL OBSERVATIONS

• ASSESSMENT RESULTS (4 subsections)

• SUMMARY AND RECOMMENDATIONS

The TITLE AND DEMOGRAPHICS section shouldbegin with an appropriate and centered title at the top of the page. Titlestypically start with the words Confidential Psychological Evaluation of …or Confidential Psychological Assessment of …. with the …. filled inwith the person’s name. The demographic information should cover at leastone-quarter of the page, and can be in a two-column format with at least thefollowing information contained: (a) date of birth, or approximate age; (b) raceor ethnicity; (c) sex or gender; (d) marital status; (e) employment status (f)date of evaluation; (g) referral source; (h) other professionals associated withthe person, such as primary physician, primary therapist, social worker, etc..The demographics should lend themselves to sentence format like a 21 year oldAfrican American male, unmarried and a college student, who was evaluated onNovember 17, 2000, referred by Acme Mental Health whose primary care physicianis Dr. Heisenweimer, primary therapist is Mrs. Throcklesworth, and social workeris Mr. Hepburn.

The REASON FOR REFERRAL section is veryimportant. It’s what is driving the purpose of your evaluation. Some typicalreasons for referral include but are not limited to the following examples:

John Doe was referredfor psychological evaluation in order to ascertain if he is competent to standtrial.

John Doe was referredfor psychological evaluation in order to ascertain if he is insane under the ALIrule.

John Doe was referredfor psychological evaluation in order to clarify a differential diagnosisbetween psychosis and malingering.

John Doe was referredfor psychological evaluation because “reported feeling depressed” wasmentioned in a social work report.

John Doe was referredfor psychological evaluation because the subject complains of sleep and appetitedisturbances.

This section is also likely to report any specificinstructions you were given in writing, such as Please evaluate for anyself-destructiveness or Please evaluate for any dangerousness to self andothers.

The ASSESSMENT PROCEDURES is usually theshortest section of the report and contains a list of tests that are indicatedfor this type of evaluation, what family members you think you should talk to,and whether or not an interview with the subject themself is indicated. Thissection should read as a grammatically incorrect sentence, like this, if youwere to use a battery of tests:

Wechsler Adult IntelligenceScale-Revised, Rorschach Inkblot Technique, Thematic Apperception Test,Minnesota Multiphasic Personality Inventory-2, Incomplete Sentences Test,Kinetic Family Drawing Test, Bender Gestalt, review of patient’s record,clinical interview with patient’s only living parent, his mother, clinicalinterview with patient.

The SOCIAL HISTORY (or backgroundinformation) section is rarely more than one paragraph, and should repeat thesentence you created on the top or title page (a 21 year old African Americanmale, …) as well as go into detail on family history. Why is theperson unmarried or married, for example. Why do they only have one livingparent? What is their relationship to parents, other family members, andsignificant others? Have they or have they not fostered children of their own?This section should also contain some details on occupation and educationalhistory. If they are a college student, how are they doing in school? Whatis their major? If they are employed, what previous careers did they have? Howlong have they stayed in any one career? Another important area is healthhistory. Especially relevant is any history of suicide attempt. Alsorelevant is history of alcohol/drug involvement. Sexual history is sometimesincluded. When you write this section, you should indicated which answers comefrom the subject himself and which ones come from secondary sources.

The BEHAVIORAL OBSERVATIONS sectiondescribes your interview or dealings with the person and you should write asvividly as possible. Do they seem to be concerned about their personal hygiene?Are they well-kept and clean? Describe their overall physical appearance. Next,describe any attitudes, mood, or emotional condition they were in at the time.What did they complain about? Report if you were able to establish a rapportwith the subject, if they trusted you, or were suspicious of you. Were theymotivated to participate in the assessment process? What did they think abouttheir present problems? If the subject is drooling and/or undulating, explorewhether this is due to some medication they are taking, or if that’s a commonbehavior for them. All aberrant and/or bizarre behavior should be noted,as in during the interview, the subject stood up, snapped to attention, andsaid “Yes, sir” which the subject later said was a mocking gesture,but at the time seemed like an uncontrollable impulse.

The ASSESSMENT RESULTS section willcontain four (4) subsections, which are:

• Intellectual and Cognitive Functioning

• Personality Functioning: Emotional State

• Personality Functioning: Intrapsychic

• Personality Functioning: Interpersonal

The first subsection, Intellectual andCognitive Functioning, reports such things as your impression of how richthe person’s vocabulary is, how well they express themselves, how good theirmemory is, how clear or clouded their judgment seems to be, and their overalllevel of intellectual functioning. The most important thing to report is calledthe sensorium, or how “oriented” the person is to person,place, and time. Generally, this is accomplished by seeing how well the personremembers their name, age, and demographic detail (orientation to person), directions to and/or from someplace(orientation to place), and time or when something happened (orientation totime). Their memory might also be tested early on in the interview with something like I’mgoing to tell you a name now and I want you to remember it at the end of theinterview; OK, the name is Howard Days Funderling and if the person can’tremember the name later, you report that the person’s memory might be impaired. You ask them details about themselves, and if they give you far-off answers as to name, age, and other demographics, you report that they are not oriented to person.You might ask them to give directions to the back entrance of a center from somenearby Interstate, and if they can’t give clear directions, you report they arenot oriented to place. If they can’t get the right order for the last fivePresidents, you report they are not oriented to time. If the person has noproblems on all three, you report the person is oriented times three, or orientedto person, place, and time. Most people with some type of mental illness areonly oriented to one, perhaps two, as in the subject was not oriented toplace or time. There are lots of other things that need to go in thissection, such as calculation, or how well they can keep subtractingsevens starting from 100; how much focus, concentration, or attentionthey seem to have; and, of course, their judgment, such as what would you doif you got a flat tire on a deserted road late at night.

The second subsection, Emotional State,gets at the prevailing mood of the person. Do they stay in the same mood or doesit vary? Do they seem able to control their emotions, or are theyovercontrolling their emotions? How does the subject handle stress? When theytalk about things that trouble them, are they logical about it, or is there afanciful flight of ideas and/or looseness of associations? At the very least,you should ask the person about what they do when they feel extremely angry, orat least angry, about something. You want to find out how much acting-out takesplace with anger, and what substances, others, and/or defense mechanisms areinvolved. It’s also important to talk to the subject about sadness to determineif there’s any suicidal ideation. The same is true of homicidal ideation.

The third subsection, Intrapsychic,is perhaps the most challenging part of the report as it deals with thecomplexities and forces inside the person that only they can understand aboutthemselves. To get at it, you need to ask probing questions that explore why theperson seems to want to project a certain image. Are there any underlying,long-standing hostilities and tensions? If so, what is its probably etiology.What is the person’s self-image? Do they have any identity problems or issuesgetting people to see them as a real person? What do they think drives theirpersonality? What is the level of their own self-insight? You want to report onthe main defense mechanism they seem to use to cover something up, and assesswhether they are working on any deficiencies they see in themselves, or if theyadmit to no deficiencies.

The fourth subsection, Interpersonal,gets at how independent the person is. Do they always seem to need someone, ordo they always seem to need group belonging? Do they feel that they fit intosociety, or do they feel alienated and/or rebellious? Try to report on theirdependency needs, for family, friends, and lovers. Uncover any trust issues thatmight be latent for them. Analyze whatever interpersonal conflicts (breakups)they may have had with someone. Also, report your impression of their level ofsocial skills.

The SUMMARY AND RECOMMENDATIONS sectionwill contain an “impressions” paragraph and a DSM IV listing as thefollowing example illustrates:

Overall, John Doe appears to beexperiencing a great deal of sadness as reflected in his mood, affect, andorientation to person only. This condition borders on clinical depression asevidenced by appetite and sleep disturbance, self-destructive ideation, andcomplaints about others at school not understanding him. There is no indicationof psychosis or thought disorder, and the subject is functioning as well as canbe expected given his recent breakup with a girlfriend of three months duration.

Axis I: 296.22 Major depression, SingleEpisode, Mild
Axis II: 301.60 Paranoid Personality Disorder
Axis III: Deferred
Axis IV: 3 – Moderate
Axis V: Current GAF (Global Assessment of Functioning) 55,Highest GAF 70

This final section will also lead intospecific recommendations for treatment, the most important of which is the prognosis,or prospects for successful treatment. The evaluator should indicate which typeof treatment (individual or group counseling) is most appropriate and how longthe treatment should go on until progress is seen. Something like “grouptherapy is recommended with an emphasis on social skills training and discussionof trust and identity issues” might be appropriate for John Doe(above). If the recommendation is in favor of legal incompetency or insanity,the report might read something like “diversion from prosecution isrecommended with an indefinite stay in an institutionalized mental healthsetting…“

SOCIAL SCIENCE IN LAW

You can have a social science OF something or a socialscience IN something. This part of the lecture is about social science IN law because it’sthe closest thing to forensic social science. With the exception ofpsychology and anthropology (where there actually are professions called”forensic psychology” or “forensic anthropology”), none ofthe other social sciences lend their names in such a manner. Instead, mostsocial sciences prefer to make the study OF law a specialty area in theirdiscipline. This allows them to remain detached and offer critical perspectiveson the whole legal system. On the other hand, most social scientists view social science IN law as “selling out” and allowing the legal systemto tell them what their subject matter should be. In general, the socialsciences prefer to control their own specialty and interdisciplinary areas,regardless if it’s OF or IN something. A problem with the OF approach is the “sociologizing”of everything — sociology of law, sociology of medicine, sociology ofcyberspace, etc., to use sociology as an example — but the problem might be even worse when you follow the IN approach, which results in some rather strange names — Legal Sociology, Medical Sociology, Cyberspatial Sociology, etc. Most of the ones with strange-sounding names either don’t exist or are limited to a handful of practitioners that are rather distant from their academic cousins (like some OF social scientists).

Social science is a branch of behavioral science, which isthe study of influences upon human behavior, including biological factors, butBiology long ago separated itself to be treated as a natural science. Here’s alist of traditional social sciences:

• Psychology — already has a forensic subspecialty

• Anthropology — already has a forensic subspecialty

• Sociology — doesn’t have a forensic subspecialty, but has a sociology of law

• History — doesn’t have a forensic subspecialty, but has a history of law

• Political Science — doesn’t have a forensic subspecialty, but has a politics of law

• Criminology — doesn’t have a forensic subspecialty, but includes law by definition

• Social Work — has a forensic specialty, but rarely separates fact witnesses from expert witnesses

Social science in law is defined as the use of social sciencematerials to resolve legal problems. It refers to cases in which lawyers thinkit might be helpful to draw upon the expertise of social scientists, theirresearch or literature, to help the court better understand some complex issue,argument, or question. This interest by lawyers reached its peak from 1930-1950,is called legal realism or sociological jurisprudence, and wassparked by the words and ideas of five great jurists — Oliver Wendell Holmes,Louis D. Brandeis, Roscoe Pound, Benjamin Cardozo, and Karl Llewellyn. In itsextreme form, legal realism holds that there is no question too complex thatsocial science cannot help the law with. Examples of such questions might be:

• Is racial discrimination harmful to society?

• Is pornography harmful to women?

• Does TV violence cause crime?

• Are boot camps for juveniles a just form of punishment?

• Does child abuse lead to adult criminality later in life?

These are, of course, some typical research questions ofsocial science, and they can be answered different ways. The standard legal waywould be stare decisis (let the decision stand), by going back over old,relevant cases to see what the legal discourse was about, extrapolatingprinciples, rules, tests, or doctrines, and applying them to the new situationat hand. A moralist, rationalist, theological, or philosophical approach wouldtry to answer by appeal to reason or intuition; a normative, often partisan,method that frequently results in dispelling all doubt that “ofcourse” it’s harmful or wrong. Social science, on the other hand, uses anempirical approach, empiricism being the method of direct observation,experience, and experimentation. What makes social science a SCIENCE is itsmethod. That’s why regardless of whether you study social science at a techschool or liberal arts institution, you’re going to have to learn social scienceresearch methods.

It’s often said that social science is a “soft”science, but it can be rather “hard” when it comes to social sciencein law. Most use of social science in law is of the “legislative fact”or “adjudicative fact” variety, which means that research is used tomake the law (as in death penalty or jury selection) or determine legal facts(as in pornography or music as a cause of crime). In recent years, however,social science has found a third use in law — that of providing a “socialframework” which means at least a couple of things:

• clarifying the jury’s understanding of human nature

• disabusing the jury of common misconceptions and myths about crime

Empirical social science methodology is all about predictionand control rather than proof. It rarely happens that social science obtainsproof in the form of knowing all necessary and sufficient conditions for acausal X-Y relationship. Most influences on human behavior are of a necessarybut not sufficient kind. This doesn’t mean they are any less causal. It justmeans that the search for causes is carried out differently. Prediction is themeans by which social scientists compare ideas. A social science theory, forexample, may have two or three approaches in it, using different concepts oroperationalizations of the same concept. They are compared on the basis of theirpredictive power — which concept, when measured, sampled, and data collected,produces the best score on some inferential statistic. The predictive statisticin use at the time is a matter of tradition or convention — during the 1960s,it was correlation; during the 1970s, it was factor analysis; during the 1980s,regression emerged as the convention used. New inferential statistics are beingdeveloped every year, and most social scientists at research universities are highly vested in the onesthey know and use (it largely constrains their research agenda).

Control doesn’t mean anything ominous or repressive like”social control” or the policy-making aspects of social science.Control means knowledge of how to change something, regardless of whether itshould be changed or not. It’s a search for controlling, underlying factors, theability to influence or bring about change in outcomes. It’s the data mining orfishing expeditions that social scientists go on when they obsessively”milk” the data. For example, there might be a weak predictivestatistic between TV violence and crime for most people, but perhaps a certaintype of TV violence has a very strong controlling influence on certain types ofpeople. It’s possible that this particular influence might unlock some clueabout controlling the phenomenon for most people, but for the social scientist,it’s enough to have unlocked one small controlling factor that can be”tweaked” or manipulated, if need be.

It’s also important to recognize a thread in social sciencethat emphasizes understanding, appreciation, or the German word verstehen.This thread has emerged for a variety of reasons, from a variety of sources, hassome similarities with anthropological method, and is called qualitative socialscience. As opposed to quantitative social science, the qualitative schoolof thought holds that prediction and control without understanding is futile.The analogy is medicine. You might know, statistically, that a certain kind ofdiet or lifestyle causes disease, and you might have developed a controllingfactor in the form of a pill that works to cure or prevent the disease. However, all you have is prediction and control without understanding.You don’t really know how the disease or the pill work. People in medicine,pharmaceutics (and business in general) are perfectly comfortable with this.Social scientists, on the whole, are not. They would like to see corroboratingqualitative studies (if you will), and this is often called exploratory ordescriptive research. It serves a vital yet underrecognized place in socialscience.

Social scientists know that no two operational definitionsare exactly alike. Different researchers choose different variables, definingand measuring them differently. They may be interested in keeping withtradition, putting a new twist on tradition, or breaking new ground entirely.This produces a plethora of studies, all of which may or may not be compatibleon the same subject. Despite the temptation of something called meta-analysis(which reduces incompatible studies on the same subject to some powerstatistic), the most appropriate way to distinguish quality among studies on thesame subject is to focus on validity and reliability. How well asocial scientist handles threats to validity and reliability is the trademark ofan expert in this field. Both are important, but validity is somewhat moreimportant than reliability in social science.

VALIDITY is how well something truly or accurately measureswhat it is supposed to measure. Two general categories of it are internal andexternal. Internal validity essentially involves whether the socialscientist considered plausible rival hypotheses. External validityinvolves whether inferences can be generalized across person, place, and time.There’s also face and criterion validity. Face validity is when something”on its face” appears to measure the relevant behavior. Criterionvalidity is whether something predicts what it is supposed to predict (i.e.,the criterion).

RELIABILITY is the extent to which measures give consistentresults. It’s the idea of consistency in getting the same results if you were toconduct your study on the same people a month later, a year later, ten yearslater, etc. You can probably see the problem already when you’re dealing withpeople’s attitudes, which may change over time. Social scientists strive to useand develop four-point (or five-point) scales or indexes that are reliable. So,if a person’s attitude changes, a reliable scale or index will pick up thatattitude change reliably as long as you didn’t have to redo or reword the items.Various item-subitem and test-retest methods exist to estimate reliability, butthe most common method involves calculating something called Cronbach’s alpha.

THREATS TO VALIDITY

• HISTORY is a threat when something socially significant takes place between pretest and posttest or at the time you’re carrying out your study

• MATURATION is a threat when people grow older, wiser, stronger, or more experienced

• TESTING is a threat when people become familiar with your items and how many times you ask the same question over and over again

• INSTRUMENTATION is a threat when you have narrower intervals at the ends of a scale than at the midpoint; e.g. “five or more” as an endpoint

• STATISTICAL REGRESSION is a threat when you have people who may or may not be giving their best responses to you (on a bad day, for example) and they would give different responses, or regress to the population mean on another retest

• SELECTION is a threat when the people you study all seem to come from the same background or have the same characteristics, rather than being probabilistic distributed or randomized

• MORTALITY is a threat when you have people who drop out or refuse to participate

Social scientists draw conclusions by making inferences fromtheir data on the sample of people they study to a larger group of people calledthe population. This process can be described as ensuring that findingswithin the sample would hold true if everyone in the population had beenstudied. It is accomplished via the use of a null hypothesis, tests ofsignificance, and estimations of Type I and Type II error. The nullhypothesis is what is always being testing in a test of significance.The null hypothesis can be stated in terms of the population as a whole or interms of different subsets or group splits in your sample. In either case,you’re hypothesizing that two populations are alike, or they are different.These are fairly easy probability statements to test, and various statisticaltechniques, called tests of significance, exist which tell us the likelihood oftwo populations differing by chance even if, in actuality, there were nodifferences on the whole. The idea is based on the tenable assumption that notwo populations are exactly alike. It’s the nature of probability that highlyimprobable events sometimes happen.

If our test of significance indicates that we should rejectthe null hypothesis (that there are no differences), and we always consider the levelof significance when doing so, then we are at risk of making the Type Ierror (rejecting a null hypothesis when it is true). By convention, thelevel of significance in social science is .05 or 5%. It’s a preset value thattells us we should reject the null hypothesis if its chance of being true isfive in one hundred or less. Our test of significance statistic compares theprobabilities we obtained in our sample against the probabilities of this presetvalue in the population. If the final calculation is one that says we couldobtain by chance a difference greater than 5:100, then the null hypothesiscannot be rejected, and we are at risk of making the Type II error (accepting anull hypothesis when it is false). The only way of protecting yourself againstType II error is to take larger samples, and the more you protect yourselfagainst Type I error, the more likely you are to make a Type II error. Socialscience conclusions are always expressed in this way: the null hypothesis wasrejected at the .05 level of significance, which means that 5 out of 100 timeswe say there is a chance of obtaining the statistically significant resultsfound in this study, there in fact are no real differences in the population,only chance variation.

ADMISSIBILITY OF SOCIAL SCIENCE EVIDENCE

Before we look at some of the different topical areas wheresocial science has been used in law, it’s important to note the different wayssocial science gets into law. There’s really no rigid adherence to standards,rules, or tests like Daubert or Frye, and testimony on the standis somewhat rare for a social science expert. That’s because justices, judges and lawyersoften think of themselves as experts on social science (witness the ExclusionaryRule or Miranda warnings as judicial experiments) or can make due withwhat’s called ex parte communication. There’s no Federal Rules ofEvidence on this practice, except regarding discretion on what to give judicialnotice to. Ex parte means witnesses heard in secret, and often judgeswill send their clerks to professors, or talk with them over the telephone or informally. Here’s a list of the various ways social science information getsbefore the judiciary:

• expert witness called by prosecution or defense

• expert witness appointed by the court

• social science research mentioned in appellate brief

• amicus curiae brief filed by social scientist

• judicial notice of social science research

• judicial generation of original research

• law clerks with social science backgrounds

• court “advisors” who are social scientists

• continuing education courses in social science

TOPICAL AREAS:
SOCIAL DISCRIMINATION

Probably the most well-known example of social science in lawis the case of Brown v. Board of Education (1954). It marked the firstjudicial use of modern social science. For review, the case overturned the”separate but equal” doctrine of Plessy v. Ferguson, and mandated a14th Amendment right to desegregated educational opportunities. Sincethen, social science experts have been regularly used in a wide variety ofsocial discrimination cases: female applicants to all-male military academies,reverse discrimination, quota systems, affirmative action, racialdiscrimination, gender discrimination, and so forth.

The knowledge base in this area consists mainly of researchinto the psychological effects of prejudice and discrimination. In Brown,the social science finding was that segregation with the sanction of lawfostered low black self-esteem which led to low black achievement andperpetuated institutional racism. Social scientists filed both briefs andprovided testimony about the “vicious circle” of prejudice and how itwas affecting black students’ motivation to learn. One of the more interestingelements of the testimony involved the use of dolls as a measure of self-esteem.Children (both black and white) consistently chose white dolls when asked topick the doll they like best, the smartest doll, and the doll with a nice color.This was interpreted as a statistically significant finding of racialinferiority among black children. Sociologists then offered testimony that itwas impossible to talk about discrimination or segregation in a vacuum, that theproblem in schools just exemplifies the structural problem of racial injusticein society.

With the issue of same-sex v. coeducational schools, socialscientists have been used not so much to talk about prejudice anddiscrimination, but to interpret conflicting studies that men speak up anddominate more in the classroom. Colleges for women and military academies formen also tend to be small in size as well as drawing upon certain social classesfor applicants, so much of the research in this area tries to differentiate asingle-sex effect from a size or social class effect. Other uses of socialscience research have involved measuring the “intangible” features andbenefits of a college education. Other social science research involvesdiscrimination in employment.

OBSCENITY AND/OR MEDIA VIOLENCE AS A CAUSE OF DELINQUENCY

Another common use of social science in law is in thearea of obscenity, not so much as to whether the state should control it orwhether something qualifies as legally obscene, but on the behavioral effects ofreading or seeing obscene material. A few well-known cases are U.S. v. Roth(1956), Paris Adult Theatre v. Slaton (1973), New York v. Ferber (1982), andnumerous reports by Commissions on Obscenity and Pornography.

In Roth, criminologists (the Gluecks) considered thecountry’s leading authorities on the causes of juvenile delinquency found thatdelinquents read very little and that no one factor explains delinquency. Therewas some evidence that reading “good” books allegedly influencedsomeone to become a non-delinquent, but there was no evidence that obscene booksand pictures influence a child’s conduct adversely. In Paris, thecourt commissioned special surveys, sending sociologists out into the Atlantapopulation to test pornography’s effect on “normal” people and”bizarre deviant groups”. The research showed that there were nostatistically significant differences. In Ferber, at issue was the effectof child pornography on child sexual abuse rates. The research used wasinconclusive on this “cycle of violence” issue, but did find some caseevidence of emotional trauma later in life by those who posed or participated inthe making of child pornography. Various national studies have been speciallycommissioned and many broke new ground in claiming to find dramatic effects inthe relationship between exposure to erotic material and criminal behavior. Thestrongest effect seemed to be for violent pornography, or so-called “snuffflicks”, that are not representative of the entiregenre.

PAROLE, SENTENCING, RECIDIVISM, REHABILITATION

Parole as traditionally known is all but a dead institutionnowadays (replaced by Sentencing Commissions), but it used to be the one areawhere courts took a “hands off” approach to social science expertise.In 1928, a sociologist named Ernest Burgess developed a prediction instrument todetermine parole eligibility, and before long, almost every correctional systemin the country was using some version of the Burgess instrument forclassification and release of inmates. Almost every risk assessment instrumenttoday is still a version of the Burgess instrument; e.g., “no previous workrecord”, “changed addresses 3 times in the last 2 years”,etc…..

The sociological expertise that went into parole predictionalso found use in civil commitments, or involuntary mental hospitalizations,under various “dangerousness” statutes. A few related cases were Barrv. U.S. (1976) which dealt with antisocials, psychopaths, and sociopaths asincurable, and Barefoot v. Estelle (1983) which dealt with predictions offuture dangerousness in the context of the death penalty. These and numerousother cases resulted (with a few dissents) in the Supreme Court not recognizingsocial science’s ability to predict future dangerousness. There have been manystudies and debates on this in criminology (the names of Steadman and Monahancome to mind), and the issues are whether statistical prediction is as good asclinical prediction and/or whether mentally disordered (dangerous) offenders aremad, bad, or different.

By 1975, it was also apparent that what a criminologist namedMartinson said a year earlier (“What Works”) was true — there were noeffective correctional treatments (“Nothing Works”). This led to asearch for some rationale for corrections, now that rehabilitation was dead. Anumber of studies focused on deterrence, and the issue came up most notably in Greggv. Georgia (1976) where it was argued that each act of carrying out thedeath penalty saved eight lives. These numbers are part of what is known as theEhrlich study, perhaps the most widely criticized piece of social science onmethodological grounds.

PROFILING CRIMINALS AND VICTIMS

Long before the popularity of serial killer profiling, socialscientists were involved in court cases dealing with the profiling of hijackers,illegal aliens, and drug couriers, and the courts have varied widely in theirreceptiveness. Today, profiling is used is such areas as counterterrorism and white collar crime investigation. The typical case involves someone who “fits” or”matches” the behavioral characteristics of a known group of criminaloffenders. A few cases were U.S. v. Lopez (1971) where specially trainedairport employees screened passengers for potential hijackers, U.S. v.Martinez-Fuerte (1976) which involved illegal alien screening checkpoints,and many, many other cases involving drug courier profiling. In almost all thesecases, social scientists were involved in the training of employees to detectsuch persons and/or involved in defending the practice in court. Somestatistical evidence was offered to show the techniques were at least 60%effective, but primarily courts had problems with justification on the basis ofimpressionistic police officer experience as data.

Ironically, social science in law has had more success inprofiling victims than offenders. At the same time experts were trying toimpress the “rapist profile” on the courts in New Jersey v. Cavallo(1982), something called “rape trauma syndrome” was being developed inState v. Saldana (1982). Acceptance of the rape trauma syndrome was asignificant step forward in victimology from what previously existed,post-traumatic stress syndrome.

Also, some social scientists, especially social workers, have taken the stand to testify in court as an expert witness, investigating cases of possible criminal conduct, and assisting the legal system in such issues as child custody disputes, divorce, child support, juvenile delinquency, spouse or child abuse. Ethics and liability issues abound in this area, and a few practitioners don’t separate their role as an expert witness from their role as the fact finder, or fact witness (in the investigation of a child abuse case, for example). There’s a vast difference between an academic social worker who can summarize the settled research on a topic and one who has been too close to an actual case to divorce themselves from the particulars to speak in terms of generalities.

STATE OF MIND SYNDROMES

It seems that in recent years, social science in criminal lawhas been almost completely pro-defense. The number of emerging defenses in theform of various syndromes is amazing. Most of these cases don’t involve a claim to have an exculpatory mentalillness, but a lessening of responsibility based on sociocultural factors thatled to the crime. Some pertinent examples are:

• rotten social background (U.S. v. Alexander and Murdock 1973) – poverty causes crime

• spurned lover defense (People v. Poddar 1972) – anthropology of cultural differences

• television addiction (Florida v. Zamora 1977) – psychology of media violence toleration

• Vietnam Vet syndrome (Louisiana v. Sharp 1982) – DSM III and PTSD experts

• pathological gambling (U.S. v. Lewellyn 1983) – psychology of addiction

REFERENCES

Anderson, P. & T. Winfree. (1987). Expert Witnesses:Criminologists in the Courtroom. Albany: SUNY Press.

Arrigo, B. (2000). Introduction to Forensic Psychology: Issues andControversies in Crime and Justice. NY: Academic Press.

Bartol, C. & Bartol, A. (2004). Introduction to Forensic Psychology. Thousand Oaks, CA: Sage.

Barker, R. (2000). Forensic Social Work. Binghamton, NY: Haworth Press.

Carson, R. (1990). “Assessment: What Role the Assessor?” Journal ofPersonality Assessment 54, 50-60.

Cockrell, J. & Folstein, M. (1988). “Mini-Mental State Examination.” Psychopharmacological Bulletin 24: 689-92.

Erickson, R. & R. Simon. (1998). The Use of Social Science Data in SupremeCourt Decisions. Urbana: Univ. of Illinois Press.

Ewick, P., R. Kagan & A. Sarat. (1999). Social Science, Social Policy andthe Law. NY: Russell Sage.

Folstein, M., Folstein, S. & McHugh, P. (1975). “Mini-Mental State.” Journal of Psychiatric Research 12:189-98.

Lempert, R. (1989). An Invitation to Law and Social Science. Philadelphia:Univ. of PA Press.

Klopher. W. (1960). The Psychological Report. NY: Grune & Stratton.

Maloney, M. (1985). A Clinician’s Guide to Forensic Psychological Assessment.NY: Free Press.

Monahan, J. & L. Walker. (1998). Social Science in Law: Cases and Materials.Mineola: Foundation Press.

Mordock, J. (1997). Custody Evaluations: A Clinician’s Guide to Report Writing.NY: Manisses.

Ownby, R. (1997). Psychological Reports. NY: Wiley & Sons.

Ramsland, K. (2002). The Criminal Mind: A Writer’s Guide to Forensic Psychology. Cincinnati: Writer’s Digest Books.

Tallent, N. (1992). Psychological Report Writing. NJ: Prentice Hall.

Towl, G. & D. Crighton. (1996). The Handbook of Psychology for Forensic Practitioners. NY: Routledge.

Walker, L. & Shapiro, D. (2004). Introduction to Forensic Psychology: Clinical and Social Psychological Perspectives. NY: Kluwer Academic/Plenum.

Wolber, G. & Carne, W. (1998). Writing Psychological Reports.Sarasota: PRP Press.

Wrightsman, L., M. Taflinger & M. Linsenman. (2000). Forensic Psychology. Belmont, CA: Wadsworth.

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