Psychological Evaluations for the Courts

A Handbook for Mental Health Professionals and Lawyers

FOURTH EDITION

Gary B. Melton
John Petrila
Norman G. Poythress
Christopher Slobogin
Randy K. Otto
Douglas Mossman
Lois O. Condie

THE GUILFORD PRESS

New York London

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Epub Edition ISBN: 9781462535538; Kindle Edition ISBN: 9781462535545

© 2018 The Guilford Press

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All rights reserved

No part of this book may be reproduced, translated, stored in a retrieval system, or transmitted, in any form or by any means, electronic,
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Last digit is print number: 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Names: Melton, Gary B., author. | Petrila, John, author. | Poythress, Norman Godfrey, author. | Slobogin, Christopher, 1951– author. | Otto,
Randy K., author. | Mossman, Douglas, author. | Condie, Lois Oberlander, 1961–author.
Title: Psychological evaluations for the courts, fourth edition : a handbook for mental health professionals and lawyers / Gary B. Melton, John
Petrila, Norman G. Poythress, Christopher Slobogin, Randy K. Otto, Douglas Mossman, Lois O. Condie.
Description: Fourth edition. | New York : The Guilford Press, 2018. | Includes bibliographical references and index.
Identifiers: LCCN 2017039259 | ISBN 9781462532667 (hardback)
Subjects: LCSH: Forensic psychology—United States. | Forensic psychiatry—United States. | Evidence, Expert—United States. | Mental
health laws—United States. | Insanity (Law)—United States. | BISAC: PSYCHOLOGY / Forensic Psychology. | MEDICAL / Psychiatry
/ General. | LAW / Forensic Science. | SOCIAL SCIENCE / Social Work.
Classification: LCC KF8922 .M45 2017 | DDC 614/.15—dc23
LC record available at https://lccn.loc.gov/2017039259

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About the Authors

Gary B. Melton, PhD, is Associate Director for Community Development and Social Policy at the Kempe
Center for the Prevention and Treatment of Child Abuse and Neglect, Professor of Pediatrics, and Professor
of Community and Behavioral Health at the University of Colorado Anschutz Medical Campus. He is also
Visiting Professor of Education and Family Medicine at the University of Virginia and Adjunct Professor of
Youth, Family, and Community Studies at Clemson University. Dr. Melton has received Distinguished
Contributions Awards from the American Professional Society on the Abuse of Children, the American
Psychological Association (four times, a unique achievement), the American Psychological Foundation, and
Prevent Child Abuse America, among other organizations. The author of more than 350 publications, he is
senior editor of the American Journal of Orthopsychiatry.

John Petrila, JD, LLM, is Vice President of Adult Policy at Meadows Mental Health Policy Institute.
Previously, he was Chair and Professor of Health Policy and Management at the University of South Florida
College of Public Health. He is a recipient of a Fulbright Scholarship and of the University of South Florida
President’s Faculty Excellence Award. Dr. Petrila’s research interests include the diversion of people with
mental illnesses from the justice system, coercion, and strategies to reduce recidivism of heavy users of the
treatment and justice systems. Recent papers focus on emergency hospitalizations of people with mental
illnesses, national review of emergency civil commitment legislation, and the current status of the Americans
with Disabilities Act.

Norman G. Poythress, PhD, is Professor Emeritus in the Department of Mental Health Law and Policy at
the University of South Florida, where he served as Research Director from 1990 to 2010. He is a past
president of the American Psychology–Law Society, which honored him with its Award for Distinguished
Contributions to Psychology and Law. He is also a recipient of the University of South Florida President’s
Faculty Excellence Award. Dr. Poythress has published more than 100 research articles and book chapters on
forensic assessment, mental health courts, research ethics, and psychopathic behavior.

Christopher Slobogin, JD, LLM, is Milton Underwood Chair at Vanderbilt University Law School. He is
the first law professor to receive Distinguished Contribution Awards from both the American Psychology–
Law Society and the American Board of Forensic Psychology. Mr. Slobogin has published over 150 works on
mental health law and criminal justice, and is currently one of the 40 most cited law professors in the country.
He recently served as chair of the task force revising the American Bar Association’s Criminal Justice Mental
Health Standards, and was also a Reporter for the ABA’s Task Force on Mental Disability and the Death

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Penalty.

Randy K. Otto, PhD, ABPP, is Associate Professor in the Department of Mental Health Law and Policy at
the University of South Florida, where he has been on the faculty since 1989. He also teaches in the
Departments of Psychology and Criminology. Board-certified in clinical and forensic psychology, Dr. Otto
has served as president of the American Psychology–Law Society, the American Board of Forensic
Psychology, and the American Board of Professional Psychology. His contributions to forensic psychological
assessment have been recognized with awards from the American Academy of Forensic Psychology and the
forensic division of the New York State Psychological Association.

Douglas Mossman, MD, is Professor of Clinical Psychiatry and Program Director of the Forensic Psychiatry
Fellowship at the University of Cincinnati College of Medicine. A board-certified general and forensic
psychiatrist and Distinguished Life Fellow of the American Psychiatric Association, Dr. Mossman has
authored more than 180 publications on diverse issues in medicine and law, including competence, judgment
models, malingering measures, psychotropic medication, malpractice, psychiatric ethics, and novel
mathematical approaches to diagnostic assessment. He is a recipient of the American Psychiatric Association’s
Manfred S. Guttmacher Award for outstanding contributions to the literature on forensic psychiatry.
Hundreds of scientific and legal works cite his 1994 article, “Assessing Predictions of Violence: Being
Accurate about Accuracy.”

Lois O. Condie, PhD, ABPP, is affiliated with the Department of Neurology at Boston Children’s Hospital
and is Assistant Professor of Psychology in Psychiatry at Harvard Medical School. Dr. Condie is board-
certified in neuropsychology, clinical psychology, and forensic psychology. She has received citations and
awards from the Social Security Administration, the American Board of Forensic Psychology, the American
Academy of Forensic Psychology, and the American Board of Professional Psychology. Her research focuses
on assessments and entitlement legislation for children with neurodevelopmental and other disorders, services
for vulnerable populations internationally, psychological and legal conceptions of privacy, and ethics and
standards of practice.

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Preface

GENERAL REMARKS

This is the fourth edition of this book. Since the first edition appeared in 1987, the fields of forensic
psychology and psychiatry have expanded enormously, whether one focuses on theory, practice, or empirical
findings. Taking account of these explosive developments has required us to revise virtually every aspect of the
book—first in a second edition published in 1997, then again in 2007, and now, once again, in 2018. To
ensure comprehensive coverage of all these new developments and areas of practice, we’ve also added three
authors since the first edition: psychologist Randy K. Otto, who joined the book in the third edition, and
psychiatrist Douglas Mossman and psychologist Lois O. Condie, who join in this edition. (At the same time,
we have reluctantly proceeded without the insights of one of the original four authors, Norman G. Poythress,
who has retired.) Like the first three editions, this edition is aimed at two groups: mental health professionals
who perform psychological evaluations for the courts, and lawyers and judges who request such evaluations.
We aim to provide these groups with a comprehensive guide to the issues the legal system has most
commonly asked mental health professionals to address.
The contexts examined in this book are thus quite diverse. They include insanity and competence
determinations; sentencing and civil commitment proceedings; probate and guardianship hearings; personal
injury and workers’ compensation claims; juvenile delinquency and status offense adjudications; custody and
child abuse/neglect disputes; federal discrimination, Social Security, and immigration claims; and educational
“mainstreaming” issues. In each of these areas, we first summarize the relevant legal rules and their
jurisprudential underpinnings. We then try to analyze the law’s approach critically, both to increase the mental
health professional’s understanding of the issues and to enhance the lawyer’s ability to argue for change. In
addition, unlike many works on “forensics,” this book incorporates or refers to research on each topic—
including pertinent studies concerning the validity of clinical opinions and specific evaluation techniques,
actuarial data on persons subject to evaluation, and empirical assessments of the manner in which the legal
process actually works. Finally, we offer suggestions about evaluation procedures and ways of communicating
information to the courts. These recommendations are not offered solely for the benefit of mental health
professionals; they should also help demystify the evaluation process for the lawyer.
The collective experience culminating in this book is wide-ranging. Two of the original authors (C. S. and
J. P.) are lawyers with specialized educational backgrounds in mental health law, one of whom (C. S.) is a law
school professor who at one time represented individuals with mental disabilities, and the other of whom (J.
P.) directed an interdisciplinary program of research and policy on law and mental health after serving for
many years as chief counsel to the New York State Office of Mental Health. The other two original authors

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(G. B. M. and N. G. P.) are psychologists—one (G. B. M.) a policy scholar who has worked for about 40
years in interdisciplinary graduate programs, centers, and institutes on children, families, and communities,
and the other (N. G. P.) a recently retired practicing clinician and university professor who devoted much of
his career to studies of the forensic process. One of the three new authors (R. K. O.) is a professor who
specializes in forensic psychological assessment and has performed hundreds of evaluations focused on a
variety of legal matters. The other new authors are a psychiatry professor (D. M.) whose teaching, clinical
practice, and scholarship emphasize a variety of practice-related and academic issues in law and mental health,
and a psychologist (L. O. C.) who specializes in children’s issues, especially in connection with education,
entitlements, and parenting capacities. Each of us has trained both mental health professionals and legal
practitioners in mental health law, and we have all observed or performed scores of psychological evaluations
for the courts. The idea for this book grew out of a training program in Virginia, which involved two of us (C.
S. and G. B. M.) in establishing a statewide community outpatient evaluation system.*
While the diversity in our backgrounds has led to differing areas of specialization, we have reached some
common conclusions about psychological evaluations for the courts. These themes permeate the book and are
worth stating here at the outset.
First, we obviously believe that mental health professionals play important roles in the legal system. To put
this somewhat differently, we believe that in most contexts, the potential contributions of mental health
professionals outweigh the prejudice and systemic inefficiency that may result from their use. Contrary to the
assertions of some writers, clinicians do have specialized knowledge that can assist judges and juries in arriving
at better-informed decisions.
On the other hand, input from mental health professionals is frequently misused, overused, and on
occasion underused by the legal system, depending upon the specific issue. At times, the law appears
interested only in obtaining a conclusory “expert imprimatur,” which hides the moral (and uncomfortable)
nature of the decision being made [see § 9.09(c)(7) on dangerousness assessments]. At other times, the legal
system demands more detailed inferences from a clinician, but in situations in which lay testimony and
common sense are all that are required [see § 16.01(a) on custody determinations]. And at still other times,
the courts completely disregard valid scientific findings, apparently out of fear that the factfinder will pay too
much attention to them [see § 18.05(a) generally, and Table 18.1 on judicial acceptance of actuarial evidence].
A significant goal of this book is to sort through this seemingly contradictory approach to clinical expertise
and to provide some guidance for its use in the legal areas we address. Throughout this volume, we urge
lawyers and judges to look carefully at the foundations of clinical opinions, and we urge mental health
professionals not to overstep the bounds of their existing knowledge. More specifically, we admit a strong
preference for research-based testimony, although we would not bar evidence founded on theoretical
constructs or “educated intuition” in most contexts. We also believe that mental health professionals have an
obligation to make clear the uncertainty of their offerings, whether research-based or theory-based, and that
lawyers should not attempt to deny or gloss over the probabilistic nature of clinical decisionmaking. Perhaps
most controversially from the practitioner’s point of view, we think that mental health professionals should be
neither permitted nor cajoled to give so-called “ultimate” legal opinions lacking in clinical content, even when
they make clear that the opinions are nonscientific. All these stipulations stem from our belief that if mental
health professionals are to assist the legal system, they and the lawyers who seek their aid must tread a fine

8
line between co-opting the legal decisionmaker and condoning legal results uninformed by credible
information concerning human behavior.
Assuming that mental health professionals can contribute constructively in the legal process, the task
becomes one of maximizing their usefulness. First and foremost, this requires making clinicians (and lawyers)
aware of the legal framework in which they will participate, and making lawyers (and clinicians) at least
cognizant of basic forensic evaluation procedures. Most of the chapters in this book are devoted to this
enterprise. It also requires, in our opinion, that forensic evaluations be tailored to the specific legal problems at
hand. At several points in this volume, we stress that lawyers should generally not request, and that clinicians
generally should not perform, global evaluations aimed at discovering “what’s wrong” with litigants. Nor
should either type of professional distort legal issues to fit clinical constructs. Competence evaluations, for
instance, primarily require an assessment of the defendant’s current functioning, not categorization by
diagnosis, regurgitation of family and social histories, or intricate psychodynamic formulations.
Adopting these precautions will go far toward achieving full use of clinical expertise. But we believe that if
mental health professionals are to be as useful to the courts as they possibly can be, conceptual as well as
practical steps need to be taken. First, it is important for members of both professions to develop a better
understanding of the paradigmatic differences between them. Second, it is crucial that both groups become
sensitive to the ethical and legal dilemmas raised when a court asks a member of the “helping” profession to
assess the mental condition of a person whose interests may be harmed by the results of the evaluation.
Although these issues are most directly addressed in Chapters 1 and 4, respectively, they too are interwoven
throughout the book.
A final pervasive theme of this volume has to do with the forensic clinician’s “job description.” It has
become commonplace to characterize mental health professionals involved in the legal system as “hired guns.”
Assuming, as we feel confident in assuming, that most professionals honestly believe in their testimony, it is
still true that the adversary process tends to define differences sharply. This should not mean, however, that
clinicians must be pigeonholed as mere puppets of the attorneys who have retained them. At several points in
this book, we recommend that the best way to conceptualize the clinician’s role is as an exercise in
consultation and dissemination of information. That is, the mental health professional is often utilized most
efficiently in advising various members of the legal system—judges, lawyers, jail personnel, or parole officers—
about the behavioral idiosyncrasies of the individual in question. Certainly, this may involve testimony in an
adversarial setting. But this testimony should above all be informative; moreover, there are other less dramatic
ways in which the clinician as evaluator can aid the legal system prior to adjudication. In this book, we try to
identify some of these nontraditional uses of clinical expertise.

THE CONTENT OF THE BOOK

With these themes in mind, the specific subjects covered in the book can be described. The book is divided
into five parts: “General Considerations,” “The Criminal Process,” “Noncriminal Adjudication,” “Children
and Families,” and “Communicating with the Courts.” With a few exceptions, noted below, this edition
maintains the organization of previous editions. But legal, clinical, and empirical materials in each chapter
have been updated to reflect 21st-century developments. The reader will also find more references to the

9
medical and neuroscientific literature than in previous editions. At the same time, the book continues to cite
and discuss leading cases (regardless of their age), classic scholarship, and 20th-century practices and research
that have stood the test of time.
Part I, “General Considerations,” contains five chapters examining topics of overarching consequence to
the book. Chapter 1, “Law and the Mental Health Professions: An Uneasy Alliance,” sets the conceptual
stage for the rest of the book by addressing two central questions, both briefly alluded to above. The first of
these focuses on the implications of the philosophical differences between the legal and mental health
professions: What, if any, are the implications of these differences for clinical participation in the legal system?
Perhaps legal and mental health professionals are so far apart in their basic worldviews that understanding one
another on any more than a superficial level is a hopeless task. Perhaps their assumptions about the
motivations behind human behavior, the concept of “knowledge,” or the process of discovering “truth” (to
name a few points of contention) are so divergent that the law, if it is to maintain its integrity, must either
change its basic tenets or refrain from relying on mental health professionals at all.
The second question addressed in Chapter 1 assumes that paradigmatic differences can be resolved short of
taking either of these two drastic steps, but is nonetheless also fundamental: Is the type of information a
mental health professional can provide of any use to the legal system, or are clinical offerings so flimsy that the
courts are better off seeking evidence from more traditional sources? That is, are mental health professionals
really “experts” who can assist factfinders on the issues raised by the law? As noted above, under the most
modern definition of the term (informed by the Supreme Court’s decision in Daubert v. Dow Chemical), we
think the answer to this question is a qualified yes, despite the courts’ increasing insistence on a “scientific”
basis for opinion testimony. This edition contains a number of new reflections on these issues.
Chapter 2, “An Overview of the Legal System: Sources of Law, the Court System, and the Adjudicative
Process,” is on a decidedly different level from Chapter 1, but, like that chapter, it is intended to provide a
backdrop for subsequent parts to this book. It is essentially a primer on the “infrastructure” of the law—where
the law comes from, the procedures governing its application, and the points at which it seeks clinical
testimony. Concepts that are part of a lawyer’s daily armamentarium sometimes befuddle mental health
professionals, thereby reducing their effectiveness as forensic clinicians. Chapter 2 provides answers to a
number of basic questions: For example, what does it mean to say that a law is “constitutional”? What is the
difference between a state court and a federal court? What are the stages of the criminal process, and how do
they differ from the stages of “civil” proceedings? And (new with this edition) to what extent does
international law affect the forensic evaluation process in the United States? These questions should
illuminate the legal arena for the clinician and thus should facilitate interdisciplinary cooperation. The chapter
should also help the mental health professional put in context the legal discussions in the following chapters.
Chapter 3, “The Nature and Method of Forensic Assessment,” describes in more concrete terms than
Chapter 1 the “attitude adjustment” that is necessary when mental health professionals whose training and
experience typically focus on treating people become forensic evaluators. The chapter begins with a general
exploration of the multiple practical differences between therapeutic and forensic pursuits, emphasizing the
investigative nature of the latter. It then discusses the limited usefulness, for forensic purposes, of traditional
clinical tools such as psychological tests and diagnostic procedures; describes various ways of gathering all-
important third-party information; and analyzes a number of forensic evaluation methods, including selected

10
specialized evaluation protocols and procedures for detecting malingering. This edition includes new extended
commentary on instruments and other procedures designed to detect feigning of mental disorder. The chapter
ends by describing the evidentiary rules that govern the admissibility of testimony based on use of these
techniques.
Chapter 4, “Constitutional, Common-Law, and Ethical Contours of the Evaluation Process: The Mental
Health Professional as Double Agent,” examines the complex, interwoven legal and ethical principles that
control the process of evaluation, ranging from the Fifth Amendment’s privilege against self-incrimination to
the “Tarasoff duty,” the Health Insurance Portability and Accountability Act (HIPAA) requirements, and
professional practice rules. From the clinician’s point of view, each of these principles aims at answering a
single question: “Who is the client?” Unfortunately, the answers they suggest often conflict. Although this
chapter attempts to reconcile the various legal and ethical pressures on the clinician, it is probably impossible
to do so entirely satisfactorily, at least in the abstract. The primary goal of the chapter, therefore, is to identify
these pressures concisely so that judges, lawyers, and mental health professionals will be sensitive to them in
individual cases. In pursuing this goal, the chapter explicitly analyzes the professional guidelines that have
been developed since the third edition appeared.
Like the other chapters in Part I, Chapter 5, “Managing Public and Private Forensic Services,” deals with
issues that affect all of the substantive evaluation contexts discussed in Chapters 6–17. It looks at three
separate topics, organized somewhat differently than in previous editions. The first part of the chapter
examines different types of systems for delivering forensic evaluations and offers suggestions for how to
implement them. The second part discusses ways of diffusing behavioral science research to legal
policymakers. The third part is aimed at the individual practitioner, providing hints on how to establish and
maintain a forensic “business.” The overarching theme of the chapter is that to protect the integrity of
traditional mental health practice, ensure a viable forensic system, and systematize the transfer of behavioral
knowledge to the legal system, specialization in forensic work is necessary.
With the general backdrop provided by Part I, the reader is better equipped to tackle specific areas of
forensic assessment. The next three parts of the book deal with over 20 “substantive” evaluation areas. Any
such treatment of forensic issues that attempts to be comprehensive must describe basic legal rules and
procedures and must recognize fundamental clinical realities. But we have also tried to add fresh material from
the legal, empirical, and clinical archives, and to mix in our own insights when we think we have something to
offer. In the brief descriptions of Parts II, III, and IV that follow, these latter aspects of the book are
emphasized. The table of contents should be consulted to obtain a more complete overview of each chapter’s
scope.
Part II, “The Criminal Process,” is devoted to psychological evaluations performed for the criminal justice
system. The classic example of the mental health profession’s involvement in this system has been expert
testimony about “insanity.” But responsibility assessments are only one small aspect of current clinical
participation in the criminal process.
Chapter 6, “Competence to Proceed,” discusses an issue that demands the services of more mental health
professionals each year than all other types of criminal evaluations combined. As a way of combating the
abuses associated with the huge and easily manipulated system that fitness determinations have spawned, the
chapter emphasizes the narrow focus of the competence evaluation and points out the opportunities clinicians

11
have for consulting with the legal profession about alternative pretrial dispositions. It also examines critically
the various psychometric instruments designed to aid in assessing competence. Several sections of this chapter
have been rewritten to reflect developments in the past decade.
Chapter 7, “Other Competencies in the Criminal Process,” deals with less frequently acknowledged areas
of clinical input in the criminal justice system. Specifically, it covers competence to consent to a search,
competence to exercise the right to silence during interrogation, competence to plead guilty, competence to
waive one’s right to an attorney, competence to refuse an insanity defense, and competence to be sentenced
and executed—subjects not normally addressed in forensic volumes. The chapter also discusses competence to
testify and the related issue of expert testimony on the credibility of a witness, both of which arise in the civil
as well as the criminal context. Of particular note is the chapter’s attempt to provide some framework for
assessing “voluntariness”—a problematic concept for both lawyers and clinicians, but one that is nevertheless
extremely relevant in any situation involving the waiver of rights like the right to remain silent or the right to
counsel. Among other additions to this edition is an analysis of research about the impact of interrogation
techniques on criminal suspects.
Chapter 8, “Mental State at the Time of the Offense,” confronts perhaps the core issue of the criminal law:
the scope of one’s responsibility for one’s actions. Because the insanity defense still triggers the mental health
profession’s most visible forensic endeavor, the legal portion of this chapter is largely a discussion of that
doctrine’s historical development, its component parts, and the popular myths that surround it. But this part
of the chapter also investigates other doctrines relevant to the responsibility inquiry, such as the defenses of
automatism, diminished capacity, and intoxication, and the verdict of “guilty but mentally ill.” Chapter 8 also
addresses the use of mental health testimony in connection with more traditional defenses such as self-defense
and duress, and tackles the difficult issue of when “character evidence” should be admissible, independent of
other defenses. As in the legal section, the research and clinical sections of this chapter are particularly careful
to address whether mental health professionals have anything to offer in these areas. To that end, we discuss
the newest studies concerning novel “syndromes” that might be accorded exculpatory significance (including
dissociative states and posttraumatic stress disorder); examine research on recently developed techniques for
evaluating past mental impairment; look at the usefulness of clinical formulations; and offer our own
recommendations for conducting a “reconstructive” evaluation of a defendant’s mental state at the time of the
offense.
The final chapter in Part II, “Sentencing,” considers the area of the criminal law that has long been
thought to be a special preserve of the mental health professions. Chapter 9 describes the rise of the
“rehabilitative ideal,” which led to this notion; the advent of “determinate” sentencing; and the research
suggesting that clinical opinion generally has minimal impact under either se®ntencing system. This edition
looks particularly closely at “sexual predator” statutes and developments in capital sentencing law. The chapter
then examines the extent to which clinicians can offer useful sentencing information, focusing on the three
“clinical” issues that most often arise in this context: amenability to treatment, culpability, and dangerousness.
We pay special attention to the last of these areas, since much has been said about the “inability” of clinicians
to evaluate violence-proneness. We closely examine the research on the topic (updated through 2016) and
address its evidentiary and ethical implications, concluding that a combination of clinical, actuarial, and
anamnestic assessment is necessary in this area.

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 The four chapters in Part III, “Noncriminal Adjudication,” leave the criminal arena and deal with contexts
that have traditionally been described as “civil” in character. As Chapter 10, “Civil Commitment,” makes
clear, however, the term is a misnomer when applied to commitment. The deprivation of liberty associated
with involuntary hospitalization—combined with the extensive empirical findings indicating the failure of
efforts to “legalize” the commitment process, and other data suggesting the relative ineffectiveness of hospital
care—lead us to conclude that clinicians should participate cautiously in this area. Recognizing that
professionals must work within the commitment system despite its defects, we criticize the Supreme Court’s
decisions relaxing strictures on the process, recommend an adversarial role for attorneys, and supply clinicians
with current data on the predictability of short-term dangerousness to self and others. The chapter also
contains significant material on outpatient commitment and a completely new section on suicide prediction.
The chapter ends with a discussion of commitment and “special” populations: minors, people with intellectual
disabilities, prisoners, insanity acquittees, and people who abuse substances.
Chapters 11 and 12 look at areas that are more accurately deemed “civil” in nature. Chapter 11, “Civil
Competencies,” discusses a number of contexts involving assessments of current functioning: competence to
handle one’s financial and personal affairs (i.e., need for guardianship), competence to consent to treatment
(experimental or otherwise), and competence to execute a will. As in Chapters 6 and 7 on criminal
competencies, this chapter stresses the focused nature of the capacity assessment and the consultative role
available to mental health professionals. New descriptions of the available assessment instruments appear in
this edition.
Chapter 12, “Compensating Mental Injury: Workers’ Compensation and Torts,” describes the two primary
systems for reimbursing the individual injured through the “fault” of another: workers’ compensation and tort
law. Both systems compensate “mental injury,” but both have great difficulty designating the circumstances
under which such compensation should occur. This chapter exposes the conceptual gap between the legal and
clinical professions on the key compensation issue of “causation,” and offers some hints as to how mental
health professionals should approach it, with new material on assessment methodologies. Developments that
have tended to restrict recovery for mental injury are highlighted.
The final chapter in Part III, Chapter 13, has a new title, “Federal Antidiscrimination, Entitlement, and
Immigration Laws,” because it now includes a discussion of law and evaluation issues relevant to immigration,
a developing area of forensic practice. Before discussing that topic, the chapter addresses three other federal
laws—the Americans with Disabilities Act, the Fair Housing Amendments Act, and the Social Security Act
—that have a significant impact on people with mental disorders. The first two laws prohibit unnecessary
discrimination against people with mental and physical disabilities in the employment and housing contexts.
The third law, which is of much older vintage, provides those who are more severely impaired with a
modicum of financial security (although amendments governing eligibility of children significantly diminish
this security for that group). After canvassing the complicated legal rules created by these statutes, the chapter
details the relatively rigid, recently updated evaluation procedures the government has imposed in these areas.
Part IV, “Children and Families,” is the last substantive section of the book, devoted entirely to the subject
of children’s involvement in the legal process—a topic that has received considerable legal and empirical
attention in recent years. Its first three chapters, entitled “Juvenile Delinquency,” “Child Abuse and Neglect,”
and “Child Custody in Divorce,” are each organized around a triad of themes. First, clinicians know very little

13
about the effectiveness of court dispositions involving children and families because the topics are so difficult
to study, given the number of variables involved. For instance, in the typical case there are an infinite variety
of dispositions available; the possible interactions between these interventions and the characteristics of
children and families are complex; outside variables such as the impact of teachers can have a major impact;
and any effects discovered may vary enormously over time, so that a good disposition for an 8-year-old may be
a bad disposition for a 15-year-old. Second, because of this empirical ignorance, mental health professionals
should view their assessment role primarily as one of providing information about these issues, not of judging
what the information means legally, and judges and lawyers should be cautious about imposing interventions.
Third, the investigative data sought by evaluators should come not only from the child and the family, but
from a wide range of other sources as well; that is, the evaluation should be ecological in nature. All three
chapters are updated to take into account the significant legal, empirical, and therapeutic developments over
the past decade in connection with children, including efforts to transfer jurisdiction to adult criminal courts;
research on juvenile competence to proceed, juvenile psychopathy, and juvenile treatment programs; and data
concerning the etiology of abuse and the impact of divorce.
The fourth chapter in Part IV, “Education and Habilitation,” sounds the same themes, but focuses on a
single federal law, the Individuals with Disabilities Education Act, which requires the evaluator to address
additional issues connected with “mainstreaming” children with disabilities into the public school system.
Chapter 17 was included because the Act has given rise to a vast disability education “industry,” which might
benefit from a structured inquiry into the purposes of the law and the best ways to implement them. This
edition includes significant new material on relevant research and tips about how to focus the evaluation.
Part V, “Communicating with the Courts,” concludes the book by delving into the important task of
communicating the results of an evaluation to the legal system. Chapter 18, which provides suggestions to
mental health professionals and lawyers about “Consultation, Report Writing, and Expert Testimony”
(including new material on social psychology research relevant to being an effective witness), is the principal
chapter in this part. But because reports are often the primary way in which many mental health professionals
and lawyers communicate, we also include Chapter 19, containing sample evaluation reports devoted to
several of the issues covered in this book (for a total of 19 sample reports, with reports describing Social
Security and immigration evaluations new to this edition). This chapter serves two different purposes. First, it
provides examples of the types of reports we think should be presented to the courts (although no doubt they
can be improved upon substantially). Second, the reports, and the commentary that accompanies each of
them, provide concrete illustrations of the abstract legal and clinical points made in earlier chapters. The final
chapter in the book, Chapter 20, contains two glossaries: one of legal terms, the other of clinical and research
terms. These glossaries define much of the jargon used in this book, as well as other words that might pose
obstacles to communication between the lawyer and the mental health professional.

SOME COMMENTS ON THE BOOK’S STRUCTURE

As noted at the beginning of this Preface, all the chapters on the substantive evaluation issues follow a simple
format designed to benefit both legal and mental health professionals: They begin with analysis of the law;
then examine the research, if any, on the subject; and end with a discussion of the proper method for

14
performing an evaluation in the area. While the legal sections are written with nonlawyers in mind, lawyers
should find them useful because they try to canvass the relevant legal positions; often include state-by-state
reviews of the law; and provide citations to leading cases, statutory material, and secondary resources. At the
same time, our hope is that this depth of legal coverage will help mental health professionals better appreciate
the policies that find expression in “the law.”
The research and clinical sections stress precepts unique to forensic practice. While it is obvious that
without basic knowledge about human behavior and psychopathology, one cannot hope to be a skilled forensic
clinician, we felt that the most efficient approach to take in this volume would be to assume such knowledge
rather than rehearse it. This approach should not frighten legal professionals away, however. As already noted,
the research and clinical sections can provide lawyers with insights into the clinical process and with
knowledge that can help them measure the quality of any evaluations or reports they request. Thus we
recommend that lawyers as well as clinicians read both the legal and clinical sections.
As we did in the third edition, we have included in this edition one or more case studies or problems in
most of the chapters (for obvious reasons, we have not constructed problems for the report-writing and
glossary chapters). Each of the case studies describes a fact situation, occasionally with variations, and then
asks questions that raise legal and/or clinical issues covered in the relevant chapter. The problems, in contrast,
are not fact-based, but rather are policy-oriented. The primary reason we have included these exercises in the
book is to assist those who use it as a pedagogical text in understanding and explicating the subject matter.
However, relative veterans in the forensic field might also find them helpful as “self-test” mechanisms. Not all
the exercises have definitive answers, but we have tried to provide, in close proximity to each, enough material
to provoke incisive thought on the issues raised.
Each chapter is divided into numbered sections and lettered and numbered subsections—an organizational
device that is perhaps somewhat “bureaucratic,” but that we think makes the contents of the chapters more
accessible and provides ease of cross-referencing. If the practitioner is interested in discovering the relevant
law or research on a particular topic, a quick look at the table of contents should generally suffice, although
referring to the extensive index may be helpful as well.
The reader interested in exploring further the topics covered in the book should find it useful to consult the
bibliography at the end of each chapter. These bibliographies are not meant to be comprehensive. Rather,
they represent a compilation of some of the books and articles in each subject area that are noteworthy for
their conceptual contributions and their thoroughness. We have also included leading cases. The reader who
seeks still further information can find many other sources in the Notes section at the end of the book.
A word about the terminology used in this book is in order. As should already be clear, we use the word
“clinician” interchangeably with “mental health professional” to designate any professional in the mental
health system, including social workers and psychiatric nurses as well as psychiatrists and psychologists. As we
indicate in Chapter 1, many of the distinctions among these groups that are imposed by the law and guild
concerns are less meaningful in forensic practice. We also try to use “consumer-oriented” language when
referring to people who have a mental disability. Any lapses in this regard are matters of oversight.
We hope that this book will improve the contributions mental health professionals make to the legal
system. We also encourage criticisms and comments about its content, so that this improvement can continue.
Finally, we acknowledge the research assistance of Rebecca Alley, Robin Kimbrough-Melton, and Sam

15
Swindell on previous editions, and of Neil Greenwell on this edition.

GARY B. MELTON
JOHN PETRILA
NORMAN G. POYTHRESS
CHRISTOPHER SLOBOGIN
RANDY K. OTTO
DOUGLAS MOSSMAN
LOIS O. CONDIE

* See Gary B. Melton, Lois Weithorn, & Christopher Slobogin, COMMUNITY MENTAL HEALTH CENTERS AND THE COURTS: AN
EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES (1985).

16
Contents

Title Page

Copyright Page

About the Authors

Preface

I. GENERAL CONSIDERATIONS
1. Law and the Mental Health Professions: An Uneasy Alliance
1.01. The Context for Law and Behavioral Science
1.02. Some Preliminary Problems in Law and Mental Health
(a) Bridging Gaps in Training
(b) Bridging Attitudinal Differences
(c) The State of the Art
1.03. Paradigm Conflicts
(a) Individual Choice versus Biology and Social Influences
(b) The Process of Factfinding
(c) The Nature of a Fact
(1) From Probability to Certainty; (2) From Group to Individual
1.04. Should Mental Health Professionals Be Considered Experts?
(a) The Definition of Specialized Knowledge
(b) Limitations on the Use of Specialized Knowledge
(c) Expertise under Frye and Daubert
1.05. Which Professionals Should Be Considered Experts?
1.06. Conclusion
Bibliography

2. An Overview of the Legal System: Sources of Law, the Court System, and the Adjudicative Process
2.01. Introduction
2.02. Sources of Law
(a) Federal–State Relations
(b) Constitutions
(c) Statutes and Regulations
(d) The Judiciary
(e) International Law
2.03. The Court System
(a) The Federal Court System
(b) State Judicial Systems

17
 2.04. The Adjudicative Process
(a) The Criminal Process
(1) The Stages of a Criminal Prosecution; (2) Clinical Input: Issues, Points of Entry, and Contacts
(b) Civil Proceedings
(c) Administrative Hearings
(d) Quasi-Criminal Proceedings: Civil Commitment and Juvenile Delinquency
(e) Therapeutic Courts
2.05. Conclusion: The Interplay of Systems
Bibliography

3. The Nature and Method of Forensic Assessment

3.01. Introduction
3.02. Distinctions between Therapeutic and Forensic Assessment
(a) Scope
(b) Importance of the Examinee’s Perspective
(c) Voluntariness and Autonomy
(d) Threats to Validity
(e) Relationship Dynamics
(f) Pace and Setting
3.03. Testing and Assessment Procedures
(a) Tests That Assess Clinical Constructs (CAIs and FRIs)
(1) Relevance to Specific Legal Inquiry; (2) Hypothetical Nature of Test Results; (3) Limitations in Reconstructive Contexts;
(4) Face Validity Considerations
(b) Forensic Assessment Instruments
3.04. Archival and Third-Party Information
(a) Reasons for Seeking Third-Party Data
(b) The Process of Obtaining the Data
3.05. Amnesia
3.06. Assessment of Response Style
(a) General Strategies for Detecting Feigning of Symptoms
(b) Assessment of Feigned Psychosis
(c) Assessment of Feigned Intellectual Impairment
(d) Assessment of Feigned Anxiety and Depression
(e) Assessment of Denial, Disavowal, Guardedness, and Minimization
(f) Summary
3.07. Challenges to the Basis of Expert Testimony
(a) General Rules
(b) Hearsay
3.08. Conclusion
Bibliography

4. Constitutional, Common-Law, and Ethical Contours of the Evaluation Process: The Mental
Health Professional as Double Agent
4.01. Introduction
4.02. The Fifth Amendment and the Right to Remain Silent
(a) Competence Evaluations
(b) Evaluations of Mental State at the Time of the Offense
(c) Sentencing Evaluations
(d) Juvenile Delinquency and Commitment Proceedings
(e) Other Civil Proceedings
(f) The “Miranda Warnings”
4.03. The Right to Counsel

18
 (a) Counsel’s Presence during the Evaluation
(b) Presenting an Effective Defense
(1) The Right to an Independent Evaluation; (2) Use of Experts Retained by the Opposing Party
4.04. Common-Law and Statutory Duties of the Evaluator
(a) Liability for Breach of Confidentiality
(b) The Duty to Protect the Public (Tarasoff)
(c) Clinician–Patient Privileges
(d) Other Tort Doctrines Relevant to Evaluations
(1) The Informed Consent Doctrine; (2) Negligent Misdiagnosis
(e) HIPAA and Forensic Evaluation
4.05. Ethical Considerations in the Evaluation Process
(a) Competence and Qualifications in Forensic Practice
(b) Clarifying Referrals with Legal Agents
(1) Consultant Roles and Evaluation Objectives; (2) Professional Fees; (3) Prior Relationships
(c) Confused Roles and Dual Roles
(1) Forensic Contacts Alone; (2) Dual Forensic–Therapeutic Relationships
(d) Confidentiality and Informed Consent
(1) Basic Elements of Notification; (2) Additional Considerations Regarding Confidentiality in Criminal Cases; (3) The “Duty
to Protect”
(e) Autonomy and Privacy Concerns
(1) Freedom of Choice to Participate; (2) Invasion of Privacy
4.06. Summary: Competence in Forensic Practice
Bibliography

5. Managing Public and Private Forensic Services

5.01. Introduction
5.02. The Case for Specialization
(a) Avoiding Adverse Effects on General Mental Health Practice
(b) Building a Forensic Service System
(c) The Need for Specialized Knowledge
5.03. Types of Evaluation Systems
(a) Descriptions of Models
(1) Model I: Institution-Based, Inpatient Model; (2) Model II: Institution-Based, Outpatient Model; (3) Model III:
Community-Based, Outpatient Clinic Model; (4) Model IV: Community-Based, Private Practitioner Model; (5) Model V:
Mixed
(b) Evaluation of Models
(1) Cost; (2) Geography; (3) Quality Assurance; (4) Other Factors
5.04. Establishing a Forensic Evaluation System
(a) Organization
(b) Personnel
(1) Training; (2) Incentives to Specialize
(c) Management
(d) Financing
5.05. Effective Diffusion of Behavioral Science Research
5.06. Operating a Forensic Practice
(a) Billing
(b) Building and Marketing a Practice
Bibliography

II. THE CRIMINAL PROCESS

6. Competence to Proceed
6.01. Introduction
6.02. The Legal Standard

19
 (a) Historic Antecedents
(b) The Competence Standard
(c) The Amnestic Defendant
(d) Medication-Induced Competence
6.03. Procedural Issues
(a) Who May Raise the Issue?
(b) The Standard for Granting an Evaluation
(c) Reasons Evaluations Are Sought
(d) The Competence Examination: Setting and Length
(e) Adjudication of Competence
6.04. Disposition of Incompetent Defendants
(a) The Rule of Jackson v. Indiana
(b) Inappropriate Hospitalization
(c) Trying Incompetent Defendants
(d) Incompetent Defendants’ Right to Refuse Medication
6.05. Competence during Proceedings Other Than Trial or Plea Hearings
6.06. Research Relating to Competence Evaluations
(a) Frequency of Competence Evaluations and Findings
(b) Characteristics of Incompetent Defendants
(c) Quality of Competence Evaluations
6.07. Structured Evaluation Formats
(a) Screening Instruments
(1) Competency Screening Test; (2) Georgia Court Competency Test; (3) Computer-Assisted Determination of Competency to
Proceed
(b) Semistructured Interviews
(1) Competency Assessment Instrument; (2) Fitness Interview Test—Revised; (4) Interdisciplinary Fitness Interview
(c) Second-Generation Adjudicative Competence Measures
(1) MacArthur Competence Assessment Tool—Criminal Adjudication; (2) Evaluation of Competency to Stand Trial—
Revised
(d) Summary
6.08. Special Populations
(a) Defendants with Intellectual Disabilities
(b) Juvenile Defendants in Adult Criminal Court
6.09. Guidelines for Evaluation
(a) Social Context
(b) Competence Evaluation Content
(1) Preevaluation Preparation and Consultation; (2) Defendant Notification; (3) Brief History; (4) Mental Status
Examination; (5) Interviewing for Case-Specific Information; (6) Administration of a Competence Assessment Tool; (7)
Testing; (8) Amnesia and Statements about the Offense
(c) Treatment and Restorability
6.10. Conclusion
Bibliography

7. Other Competencies in the Criminal Process

7.01. Introduction
7.02. Competence to Consent to a Search or Seizure
7.03. Competence to Exercise the Right to Remain Silent
(a) The Law of Confessions
(b) Evaluation Issues
(1) The “Knowing” and “Intelligent” Inquiry; (2) The “Voluntary” Inquiry; (3) False-Confession Research
7.04. Competence to Plead Guilty
7.05. Competence to Waive the Right to Counsel and to Represent Oneself
7.06. Competence to Refuse an Insanity Defense and Other Mental State Defenses
7.07. Competence to Testify

20
 (a) Legal Requirements for Testimonial Competence
(b) Psychological Research
(1) Observation; (2) Memory and Suggestibility; (3) Ability to Communicate; (4) Moral Development: Distinguishing Truth
and Falsity; (5) Conclusions
(c) Guidelines for Evaluation
(d) Assessment of Witness Credibility
(1) The Law on Expert Testimony about Witness Credibility; (2) Legal Strictures on Evaluations of Credibility
7.08. Competence to Be Executed and to Participate in and Waive Appeals
(a) The Legal Tests
(b) Evaluation Issues
(c) Treatment Issues
Bibliography

8. Mental State at the Time of the Offense

8.01. Introduction
8.02. The Insanity Defense
(a) Common Misperceptions about the Defense
(b) History of the Defense
(c) A Closer Look at the Insanity Defense
(1) Mental Disease or Defect; (2) Causation; (3) Cognitive Impairment; (4) Volitional Impairment; (5) Burden and Standard
of Proof
8.03. Exculpatory and Mitigating Doctrines Other Than Insanity
(a) Automatism Defense
(b) Mens Rea Testimony (Diminished Capacity)
(c) Actus Reus Testimony
(d) Self-Defense, Provocation, Duress, and Entrapment
(e) Defenses Based on Intoxication
(f) “Guilty But Mentally Ill” Plea
8.04. Research on the Relationship of Diagnosis to MSO Defenses
(a) Diagnosis Generally
(b) Epilepsy
(c) Hypoglycemic Syndrome
(d) Dissociative States
(e) Posttraumatic Stress Disorder
(f) Impulse-Control Disorders
(g) Gambling Disorder
(h) Other Novel Defenses
8.05. Characteristics of Clinicians’ MSO Opinions
(a) Reliability Studies
(b) Validity Studies
(c) The Effect of Discipline on Insanity Opinions
(d) Application of Cognitive versus Volitional Prongs
8.06. MSO Investigation
(a) Third-Party Information
(b) Phases and Tone of the Defendant Interview
(c) Psychological Testing and Other Special Procedures
(1) The Rogers Criminal Responsibility Assessment Scales; (2) Other Psychological Tests and Diagnostic Procedures
8.07. Clinical Formulations about MSO
(a) Formulations Referring to Behavior, Conscious Motives, and Unconscious Motives
(b) Multiple Formulations
(c) Cautions Regarding Formulations of Volitional Impairment
(d) Clinical Assessment of Diminished Capacity
8.08. Conclusion

21
 Bibliography

9. Sentencing
9.01. Introduction
9.02. A Brief History of Sentencing
9.03. A Comparison of Rehabilitative and Retributive Sentencing
(a) The Role of Legal Decisionmakers
(1) The Legislature; (2) The Prosecutor; (3) The Court; (4) The Parole Board
(b) Procedures
(1) The Degree of Formality; (2) The Presentence Investigation or Report
(c) The Role of Mental Health Professionals
9.04. Special Sentencing Provisions
(a) Repeat Offender Statutes
(b) Sex Offender Statutes
(c) Youthful Offenders
(d) Drug-Dependent Offenders
9.05. Capital Sentencing
(a) Substantive Criteria
(b) Procedural Criteria
9.06. Factors Influencing Sentencing
(a) Judicial Philosophy
(b) System- and Defendant-Based Factors
(c) Presentence Investigations or Reports
(d) The Impact of Clinical Recommendations
9.07. Assessment of Treatment Needs
(a) Characteristics of Offenders Evaluated for Treatment
(b) Conducting the Treatment Evaluation
(c) Formulating the Treatment Recommendation
(1) General Considerations; (2) Scope of Recommendations
9.08. Assessment of Culpability
(a) Understanding the Offense
(b) Understanding the Offender
(c) Cultural Factors
(d) Evaluating Culpability
9.09. Assessing Risk of Violence and Recidivism
(a) Factors That Influence Judgments about Dangerousness
(1) Variability in the Legal Definition; (2) Complexity of the Literature; (3) Judgment Errors and Biases; (4) Political
Consequences for the Predictor
(b) The Move from Accuracy of Predictions to Risk Assessment and Management
(1) Errors and Base Rates; (2) First-Generation Prediction Studies; (3) Critique of First-Generation Studies; (4) Risk
Assessment and Management: A Second Generation of Research
(c) Assessment of Violence Risk
(1) Approaches to the Assessment of Risk; (2) Risk Assessment Tools (General Recidivism); (3) Risk Assessment Tools
(Violence); (4) Risk Assessment Tools (Sexual Offending); (5) Empirical Correlates of Dangerousness; (6) Individualized
(Anamnestic) Risk Appraisal; (7) Formulations Regarding Risk
Bibliography

III. NONCRIMINAL ADJUDICATION

10. Civil Commitment
10.01. Introduction
10.02. History of Commitment Law
(a) From Ancient Times to the 1970s

22
 (b) The Legal Reform Movement
(1) Challenges to the Medical Model; (2) Challenges to the Consequences of Commitment; (3) Challenges to the Commitment
Process and Criteria
(c) Supreme Court Retrenchment
10.03. Substantive Criteria for Commitment
(a) Mental Disorder
(b) Capacity to Make Treatment Decisions
(c) Danger to Others
(d) Danger to Self
(e) Grave Disability/Inability to Care for Self
(f) Need for Treatment
(g) The Least Restrictive Alternative
(h) Outpatient Commitment
10.04. Procedural Due Process
(a) Inpatient Commitment Procedures
(1) Emergency Admissions; (2) Long-Term Detention
(b) Outpatient Commitment Procedures
(c) Voluntary Hospitalization Procedures
10.05. The Effects of Commitment Laws and Commitment
(a) Frequency of Commitment
(b) Commitment Criteria
(c) Procedures
(d) Did the Reforms Fail?
(e) The Questionable Benefit of Hospitalization
10.06. Attorney’s Role
10.07. Clinician’s Role
10.08. Commitment Evaluation
(a) Mental Illness and Need for Treatment
(b) Dangerousness to Self
(c) Grave Disability/Inability to Care for Self
(d) Dangerousness to Others
10.09. The Process of the Evaluation
(a) The Right to Silence
(b) The Right to Assistance of Counsel
(c) The Context of Civil Commitment Evaluations
10.10. Special Commitment Settings and Populations
(a) Minors
(b) Jail and Prison Inmates
(1) Inmates Convicted of a Crime; (2) Inmates Awaiting Trial
(c) Insanity Acquittees
(d) People with Intellectual Disabilities
(e) People with Substance Use Disorders
Bibliography

11. Civil Competencies

11.01. Introduction
11.02. Guardianship
(a) Forms of Guardianship
(b) Determining Need for Guardianship
(1) Legal Requirements; (2) Clinical Evaluation
(c) Determining Who Shall Be the Guardian
(d) Determining What the Guardian Shall Do
(e) Advance Directives

23
 11.03. Competence to Make Treatment Decisions
(a) Requirements for Informed Consent
(1) Disclosure; (2) Competence; (3) Voluntariness
(b) The Right to Refuse Psychoactive Medication
(c) Research on Informed Consent
(1) Disclosure; (2) Competence; (3) Voluntariness
(d) Evaluating Competence to Make Treatment Decisions
(e) Research on, and Evaluations for, Psychiatric Advance Directives
11.04. Competence to Consent to Research
(a) Legal Requirements
(b) Research
(c) Evaluation
11.05. Testamentary Capacity
(a) Legal Requirements
(b) Clinical Evaluation of Testamentary Capacity
(1) Testator Knowledge of Making a Will; (2) Testator Knowledge of Nature and Extent of Property; (3) Testator Knowledge
of Natural Objects of Bounty; (4) Testator Knowledge of the Manner in Which Property Is Disposed
(c) Conclusion 386
Bibliography

12. Compensating Mental Injury: Workers’ Compensation and Torts

12.01. Introduction
12.02. Workers’ Compensation Law: An Overview
(a) The Claims Process
(b) Substantive Criteria for Compensation
(1) Injury or Disability; (2) Origin in the Course of Employment; (3) Injury Arising “by Accident”
(c) Mental Injury
(1) Physical Trauma Causing Mental Injury; (2) Mental Stimulus Causing Physical Injury; (3) Mental Stimulus Causing
Mental Injury; (4) Preexisting Mental Disorder
(d) Compensation Awards in Workers’ Compensation Cases
12.03. The Tort of Emotional Distress
(a) Substantive Criteria
(1) Duty; (2) Breach of Duty; (3) Proximate Cause; (4) Compensable Damages
(b) Mental Injury
(1) Intentional Infliction of Emotional Distress; (2) Negligent Infliction of Emotional Distress
(c) The Predisposed Plaintiff
12.04. Causation in Mental Injury Cases: A Paradigm Clash?
12.05. Clinical Evaluation of Mental Injury
(a) Context of Evaluation
(b) Scope of Evaluation
(c) Use of Psychological and Medical Tests
(d) Structuring the Examination
(e) Ascertaining Mental Injury
(1) PTSD; (2) Other Conditions; (3) Symptom Exaggeration and Fabrication
(f) Assessing the Relationship between Injury and Event
(g) Ascertaining Effects of Mental Injury
(h) Prognosis
12.06. Conclusion: Reports and Testimony
Bibliography

13. Federal Antidiscrimination, Entitlement, and Immigration Laws

13.01. Introduction
13.02. Americans with Disabilities Act
(a) Overview of Title I of the ADA

24
 (b) Coverage
(1) Disability; (2) Qualified Individual; (3) Reasonable Accommodation; (4) Direct Threat
(c) Applicant Testing
(1) Restrictions on Certain Types of Questions; (2) Restrictions on Certain Types of Tests; (3) Test Administration
(d) Enforcement
(e) Forensic Evaluation
(1) Mental Impairment; (2) Qualified to Perform Essential Functions; (3) Reasonable Accommodation; (4) Direct Threat
13.03. Fair Housing Amendments Act
(a) Purposes of the Act
(b) Coverage of the Act
(c) Judicial Interpretation
(1) Zoning and Building Requirements; (2) Notice and Hearing Requirements; (3) Reasonable Accommodation; (4) Direct
Threat; (5) Poverty/Special Mental Health Housing
(d) Enforcement
(e) Role of the Forensic Examiner
13.04. Social Security Laws
(a) Eligibility Criteria
(1) Adults; (2) Children
(b) The Process for Decisionmaking
(c) Evaluation of Adults
(d) Evaluation of Children
13.05. Immigration Law
(a) Legal Setting
(b) Issues That May Require Forensic Assessment
(1) Hardship; (2) Risk for Torture; (3) Asylum; (4) Domestic Violence; (5) Abused, Neglected, or Abandoned Children; (6)
Discretionary Determinations; (7) Risk Assessment; (8) Competence to Proceed
(c) Special Aspects of the Evaluation
13.06. Conclusion
Bibliography

IV. CHILDREN AND FAMILIES

14. Juvenile Delinquency
14.01. Introduction
14.02. The Rise and Fall of the “Therapeutic” Juvenile Court
(a) Juvenile Justice in the Common Law
(b) The Social and Legal Segregation of Youth
(c) The Invention of the Juvenile Court
(d) The Fall of the Rehabilitative Ideal
(e) The Shrinking of the Juvenile Court
(f) The Neo-Paternalistic View
14.03. The Nature of the Juvenile Process
(a) A Typical Statute
(1) Purpose; (2) Jurisdiction; (3) Procedure
(b) Directions for Reform
(1) Community-Based Systems; (2) Juvenile Justice Standards; (3) Abolition
14.04. Mental Health Professionals’ Roles in Juvenile Court
(a) Criminal Forensic Questions—Competence and Insanity
(b) Amenability to Treatment
(c) Consultation
14.05. The Nature of the Evaluation
(a) The Process of the Evaluation
(b) The Scope of the Evaluation
(1) The Meaning of “Treatment”; (2) Dispositional Alternatives; (3) What Works

25
 14.06. Specific Areas of Treatment Evaluations
(a) Family
(1) Reasons for Assessment; (2) Clinical Issues
(b) Peer Relations
(c) Community
(d) Academic and Vocational Skills
(e) Personality Functioning
14.07. Special Juvenile Populations
(a) Very Young Offenders
(b) Sex Offenders
(c) Status Offenders
14.08. Do the Mental Health and Juvenile Systems Belong Together?
Bibliography

15. Child Abuse and Neglect

15.01. The Nature of Abuse and Neglect Proceedings
(a) Philosophical Dilemmas
(b) Stages of the Legal Process
(c) General Policy Perspectives
(1) Perspectives on State Intervention; (2) “Neighbors Helping Neighbors”: The New Paradigm in Child Protection
15.02. Legal Definitions of Child Maltreatment
(a) Physical Abuse
(b) Physical Neglect
(c) Sexual Abuse
(d) Emotional Abuse and Neglect
(e) Conclusions
15.03. Child Maltreatment as a Clinical Phenomenon
(a) The “Discovery” of Child Abuse
(b) Social Science Definitions
(c) Social Science Perspectives
(d) Factors in the Etiology of Child Maltreatment
(1) Psychological Factors; (2) Social and Economic Factors
(e) Prognosis and Treatment
15.04. Clinicians’ Involvement in the Legal Process
(a) Investigation
(b) Emergency Decisions
(c) Adjudication
(1) Procedural Issues Involved in Obtaining Children’s Testimony; (2) Reliability of Hearsay; (3) Competence to Testify; (4)
The Case in Chief: Proving Injury and Abuse
(d) Disposition and Postdispositional Review
(e) Termination of Parental Rights
(f) Mediation and Other Alternative Processes
15.05. Special Populations
(a) Parents with Mental Illness
(b) Parents with Intellectual Disabilities
(c) Parents Who Abuse Alcohol
(d) Parents Who Use Illegal Drugs
(e) Parents Who Experience Intimate-Partner Violence
(f) Parents Who Are Incarcerated
(g) Biologically Related Foster Parents
15.06. The Technique of Abuse/Neglect Evaluations
(a) Content of the Evaluation
(b) Interviewing the Child

26
 (c) Psychometric Instruments
(d) Anatomically Detailed Dolls
(e) Avoiding Ethical Problems
15.07. Adult Cases Related to Abuse and Neglect
(a) Elder Mistreatment
(b) Adult Survivors of Child Abuse and Neglect
Bibliography

16. Child Custody in Divorce

16.01. The Scope of Clinicians’ Involvement in Custody Disputes
(a) The Changing Landscape
(b) Some Possible Roles
(1) Evaluator and Investigator; (2) Mediator and Intervenor
(c) Guidelines for Custody Evaluation Practice
16.02. Standards for Resolution of Custody Disputes
(a) Historic Preferences
(b) The Best-Interests Standard
(c) The Least Detrimental Alternative
(d) The Primary-Caregiver and Approximation Standards
(e) Joint Custody
(f) Special Populations
(1) Same-Sex Parents; (2) Military Families; (3) Multinational Families; (4) Native American Families; (5) Grandparents
and Other Third Parties; (6) Parents Who Are Batterers; (7) Parents Who Relocate
(g) Multiplicity of Issues
16.03. What Do We Know?
(a) Effects of Divorce on Children
(b) Father Custody
(c) Father–Son, Mother–Daughter Custody
(d) Joint Custody
(e) Special Populations
(f) Children’s Participation in Decisionmaking
(1) Law and Empirical Research; (2) Professional Standards and Practices
(g) Parental Education Programs
16.04. The Technique of Custody Evaluations
(a) Auspices: Who Is the Client?
(b) Application of the Psychotherapist–Patient Privilege
(c) Scope of the Evaluation
(1) Identifying the Referral Question; (2) Investigative Interview; (3) Record Review
(d) Traditional Psychological Assessment
(e) Specialized Assessment Measures
(f) Recommendations
16.05. The Politics of Divorce
Bibliography

17. Education and Habilitation

17.01. Introduction
17.02. The Impetus for the IDEA
17.03. The Structure of the IDEA
(a) Substantive Coverage
(1) Disability; (2) Free Appropriate Public Education; (3) Related Services; (4) Least Restrictive Environment: Mainstreaming
(b) Procedures under the Act
(1) Identification of Children with Disabilities; (2) Evaluation of the Child: The Individualized Education Program; (3)
Review Procedures; (4) Disciplinary Procedures

27
 17.04. Clinical Evaluation under the Act
(a) Specific Skills to Assess
(b) Information Gathering
(c) Testing and Assessment
(d) Report and Testimony
17.05. Conclusion
Bibliography

V. COMMUNICATING WITH THE COURTS

18. Consultation, Report Writing, and Expert Testimony
18.01. Introduction
18.02. Preliminary Consultations
(a) Clarification of Issues to Be Addressed
(b) Determining Appropriate Expertise and Availability
(c) Evaluating Impartiality
(d) Clarifying the Examiner’s Role
(e) Clarifying Financial Arrangements
(f) Obtaining Appropriate Authorizations
18.03. Data Collection, Maintenance, and Disclosure
18.04. Preliminary Report of Findings
18.05. Report Writing
(a) Functions of a Forensic Report
(b) General Guidelines for Report Writing
(1) Separate Facts from Inferences; (2) Stay within the Scope of the Referral Question; (3) Avoid Information Over(and
Under)kill; (4) Minimize Clinical Jargon
18.06. Expert Testimony and the Social Psychology of Persuasion
(a) Deposition
(b) Pretrial Conference
(c) Voir Dire: Qualifying as an Expert
(d) Direct Testimony
(e) Cross-Examination
(1) The “Infallibility Complex” and “God Only Knows” Gambits; (2) “Yes–No” Questioning; (3) The “Unreliable
Examination” Gambit; (4) The “Subjective Opinion” Ploy; (5) The “Loaded Question” and “Lawyer as Expert” Ploys; (6) The
“Learned Treatise” Assault
(f) Objections and Hypothetical Questions
(g) Impression Management
(1) Style of Dress; (2) Familiarity with Courtroom Protocol; (3) Speaking to the Jury; (4) Powerful Speech; (5) Maintaining
Composure; (6) Conclusion
(h) Lay Attitudes toward Experts: Empirical Findings
18.07. The Ultimate-Issue Issue
(a) Perceived Importance of Opinions on Ultimate Legal Issues
(b) Pressures to Address Ultimate Legal Issues
(c) Resisting the Ultimate-Issue Question
Bibliography

19. Sample Reports

19.01. Introduction
19.02. Competence to Proceed [Chapters 6 and 14]
(a) Keith Stiller Report
(b) Discussion
(c) Warner Premington Report
(d) Discussion

28
 (e) Fordham Rhodes Report
(f) Discussion
(g) Richard Stevens Report
(h) Discussion
19.03. Competence to Plead and Waive Rights [Chapter 7]
(a) Carl Bates Report
(b) Discussion
19.04. Mental State at the Time of the Offense [Chapter 8]
(a) Ed Wertz Report
(b) Discussion
(c) Seth Hedges Report
(d) Discussion
19.05. Sentencing [Chapter 9]
(a) Leland Jennings Report
(b) Discussion
(c) Lester Thomas Report
(d) Discussion
19.06. Civil Commitment [Chapter 10]
(a) Jacob Marlar Report
(b) Discussion
19.07. Competence to Handle Finances [Chapter 11]
(a) Dorothy Dyer Report
(b) Discussion
19.08. Workers’ Compensation for Mental Injury [Chapter 12]
(a) Lane Cates Report
(b) Discussion
19.09. Reasonable Accommodation under the Americans with Disabilities Act [Chapter 13]
(a) Mike Johnson Report
(b) Discussion
19.10. Consultative Examination for Social Security [Chapter 13]
(a) Peter Doe Report
(b) Discussion
19.11. Immigration Status [Chapter 13]
(a) Ruth Amantha Report
(b) Discussion
19.12. Transfer to Adult Court [Chapter 14]
(a) Todd Merton Report
(b) Discussion
19.13. Dispositional Review [Chapter 15]
(a) George and Gerald Jones Report
(b) Discussion
19.14. Custody [Chapter 16]
(a) Gonz-Jones Report
(b) Discussion
19.15. Evaluation under the Individuals with Disabilities Education Act [Chapter 17]
(a) Sam Shay Report
(b) Discussion

20. Glossary
20.01. Legal Terms
20.02. Clinical and Research Terms

29
Notes

Index

About Guilford Press

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30
PART I

GENERAL CONSIDERATIONS

31
CHAPTER 1

Law and the Mental Health Professions

An Uneasy Alliance

1.01. THE CONTEXT FOR LAW AND BEHAVIORAL SCIENCE

In the late 19th century, a well-known lawyer and judge once grouped witnesses into three classes: “simple
liars, damned liars, and experts.”1 As this declaration and several similar ones from that era make clear,2 expert
witnesses of all types have long been the objects of scorn in some quarters. But mental health professionals
have been particularly popular targets of critics. Although the criticism has diminished somewhat in recent
years, society in general, the legal profession, and mental health professionals themselves have long voiced a
dim view of what mental health professionals say in court.3
The public’s antipathy toward clinical opinion appears to stem from the belief that much “expert”
testimony is based on “junk science” from professionals who, for a fee, will find evidence of almost anything.4
Although seldom successful,5 highly publicized psychological defenses—often associated with flamboyant
names like “abuse excuse” or “urban survival syndrome”6—have led many in the public to question the
objectivity and expertise of the mental health professions.7 For decades, popular commentators have worried
that liberal psychologists and other experts use the legal process to undermine the political judgments of
popularly elected legislators.8 Thus, for instance, dismay about mental health testimony led both houses of the
New Mexico legislature to pass legislation in 1995 (ultimately vetoed by the governor) that would have
required mental health professionals who testified in criminal cases to “wear a cone-shaped hat that is not less
than two feet tall.”9
Legal professionals have echoed these concerns. The late Judge David Bazelon, who at one time advocated
for liberal use of behavioral science in legal decisionmaking, ultimately described himself as a “disappointed
lover” chagrined by clinicians’ overreaching into moral and political domains.10 A deputy associate attorney
general with the federal government stated that “quite frankly, you’d be better off calling Central Casting to
get ‘expert psychiatric testimony’ in a criminal trial.”11 Legal scholars have called most forms of clinical
opinion testimony “story-telling” and “suppositional,” because it is untested by any scientific method.12
Published appellate cases document numerous in-court statements impugning the morals and objectivity of
mental health experts.13 Partly because of the controversy associated with courtroom behavioral expertise, law
schools now offer entire courses on use of expert social science evidence.14
Concerns expressed by the public and the legal world about psychological expertise have been more than
matched by criticisms leveled by the mental health profession itself.15 A crucial turning point in this conflict
was the publication, in the late 1980s and early 1990s, of articles by Jay Ziskin and David Faust in Science and
other prestigious journals arguing that clinical opinions were neither reliable nor valid enough to be used as

32
evidence in court.16 Although others had previously made similar arguments,17 the prestige of the forum in
which Ziskin and Faust’s views appeared led to a remarkable professional brouhaha. Their articles not only
stimulated special symposia at professional meetings, but also provoked replies from both the chief executive
officer and the president of the American Psychological Association.18
The criticisms of Ziskin, Faust, and others have led innumerable investigators to pursue research over the
past two decades that has vastly enhanced the scientific bases of mental health opinions. This book is devoted
in large part to describing those advances, which have justifiably muted the harshest critics.19 But even in our
original 1987 edition, which came out when the criticisms of forensic clinicians were the most vehement, we
took the position that the various controversies about the use of mental health professionals’ opinions in the
legal process had been blown out of proportion and reflected a misunderstanding of the purpose of expert
evidence and the standard for its admission. As we describe in more detail later in this chapter, in scientific
terms the law expects incremental—not absolute—validity. The question is whether mental health
professionals’ opinions will assist legal decisionmakers, not whether the opinions meet a particular standard of
scientific rigor. At the same time, we believe that professional credentials by themselves are not enough to
guarantee that opinions will be sufficiently helpful to warrant their admission into evidence.
The “moderate” view that we express in this chapter and throughout the book may take some of the sting
out of arguments advanced both by advocates of outright exclusion and by those who defend professional
prerogatives. Nonetheless, it is important to understand the underlying conflicts because they involve
fundamental differences of epistemology and worldview; they will not disappear with a good-natured
exchange of views. Thus the purposes of this chapter are to analyze the sources of the current ambivalence
about the interaction between law and mental health, and to address generally the limits of expertise possessed
by mental health professionals. In discussing these questions, we also make some initial inquiry into the
problems of who is an expert, and for what purpose—questions that recur throughout this volume.

1.02. SOME PRELIMINARY PROBLEMS IN LAW AND MENTAL HEALTH

CASE STUDY 1.1

Below are excerpts of expert testimony from two different proceedings involving Mike Drake, who is charged with embezzlement. The
issue addressed in the first proceeding, a criminal trial on the embezzlement charges, is whether Mr. Drake was “insane” at the time of the
offense. In this jurisdiction, insanity is defined as a “mental disease or defect that causes a substantial inability to appreciate the
wrongfulness of the act or to conform behavior to the requirements of the law.”

Q: Now, Doctor, your testimony is that the defendant is suffering from a gambling disorder?
A: Yes.
Q: And this is a mental disease?
A: Yes, it is in the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual, and I suppose there are 20 or 30
psychologists like myself who specialize in this area and are convinced it’s a serious problem.
Q: What led you to give him this diagnosis?
A: This individual admits he is preoccupied with gambling, and can’t stop himself from doing it. He feels anxious unless he is gambling or
planning a gambling trip. Though he’s never been in trouble with the law before, he’s now at the point where he’s embezzling from his
company.
Q: Does this make him incapable of distinguishing right from wrong?
A: Well, here’s a man who normally knows the law well, who knows about right and wrong, but a man who is in a desperate strait. He is

33
 under a tremendous amount of stress, does not consider right and wrong. Based on my experience with these people, I don’t think that
becomes part of his thinking process. His process is to survive. He’s losing his job, his family, his children, his reputation, everything is
going down. So he functions this way, in an irrational way, which leaves his judgment impaired.
Q: And what about his ability to conform his acts to the requirements of the law?
A: He has virtually none. While he probably intends to return the money, he can’t help himself from embezzling because of the urge to
gamble. Again, based on my experience, people like this are prone to commit crimes to get money. There’s also a study of 70 people with
this disorder, which shows that one out of five have committed crimes like forgery, theft, or embezzlement. Whereas, as a conservative
estimate, only 1 of 200 people in the general population commit such crimes, meaning pathological gamblers are 40 times more likely to
commit these crimes than the average person. This man needs treatment, not punishment.
Q: So would you say he’s insane?
A: I would, yes.

Mr. Drake is acquitted by reason of insanity and is committed to an institution for observation. A month later, the court holds a
commitment hearing to determine whether he should remain in the hospital. Continued hospitalization is permitted only if Mr. Drake is
shown to be “dangerous to self or others,” defined as “a likelihood that, as a result of mental disorder, the individual will cause substantial
harm to himself or another.” The lone expert witness at the 15-minute hearing, a member of the hospital staff, testifies as follows:

Q: What is Mr. Drake’s condition at this time?

A: He’s unresponsive to treatment.
Q: Does that make him dangerous to others or self?
A: He is still dangerous [here the doctor describes the same study described at trial]. There is no guarantee he won’t steal again to feed his
habit. Also, studies show that 15–20% of persons who seek treatment for gambling disorder have attempted suicide.

Questions: Applying the test of Frye v. United States [see § 1.04(c) for a discussion of this case], at least one court has held that clinical
testimony attempting to link gambling disorder to insanity is inadmissible.20 On the facts of this case, do you agree? Assuming that such
testimony is admissible as a general matter, should any of the witnesses’ statements be legally or ethically prohibited? Assuming that the
witnesses accurately described the studies they cited, should the results be admissible? What else would you like to know about the studies?
Does it matter whether testimony about clinical findings or research is presented in a criminal trial by the defendant as opposed to the state
at a commitment proceeding? How would your answers to these questions change if a jurisdiction followed Daubert v. Merrell Dow
Pharmaceuticals [see § 1.04(c) for a description of this case]?

As the introduction to this chapter suggests, some clashes between law and the mental health professions
reflect fundamental conceptual differences, which the next section discusses. Here we tackle some of the more
practical reasons for tension between lawyers and mental health professionals.

(a) Bridging Gaps in Training

Discussions of what is “wrong” in the relationship between the legal and the mental health professions have
tended to focus on relatively superficial problems of communication—typically suggesting that the core
problem is that lawyers and mental health professionals do not “speak the same language.” Hence (this view
suggests), lawyers may be awed when a mental health professional appears to be able to sweep away the
complexities of the human mind with profundities about “diffuse ego boundaries,” and mental health
professionals may complain that the sorts of questions lawyers ask force them to compartmentalize their
observations in foreign and untenable ways. If the tension between law and mental health is the result of
semantic difficulties, it should be erasable by facilitating communication between the two professional groups
—perhaps through some combination of cross-disciplinary training and transformation of legal tests into
language and concepts commonly used by mental health professionals.

34
 Such a view strikes us as naive, at least for the near future.21 We do not mean to minimize the need for
training, of course. Indeed, this book is oriented toward facilitation of an understanding of the kinds of
questions that the law poses for mental health professionals. We, like others, are troubled by “expert” mental
health professionals who testify on a particular legal issue without any understanding of the nature of the issue
they are purporting to address. We are also troubled when legal authorities claim ignorance of “medical”
problems in the law and effectively avoid hard decisions by demanding conclusory opinions from mental
health professionals. Both examples indicate inappropriate avoidance of “confusion by the facts.” Whether
legally or behaviorally trained, professionals whose practice takes them into interdisciplinary matters have an
ethical obligation to learn enough to be able to function competently in such a context.
Such training will not eliminate interdisciplinary problems, however. Simply inculcating a common
understanding of key terms will not eradicate the philosophical problems inherent in interdisciplinary
endeavors. A well-known example of this fact was the failure of an experiment by the District of Columbia
Circuit Court of Appeals in the 1950s with a new formulation of the insanity defense. In Durham v. United
States,22 that court, quoting well-known forensic psychiatrists, concluded that the 19th-century M’Naghten
test23 was based on an “entirely obsolete and misleading conception” of insanity because it focused on a
defendant’s ability to know right from wrong. The sole emphasis on knowing, wrote Judge Bazelon for the
court, “does not take sufficient account of psychic realities and scientific knowledge.” Rather than constrain
mental health professionals to “one symptom,” Bazelon reasoned, the law should ask psychiatrists to inform
the court of the character of the defendant’s mental disorder, so that jurors could determine whether the
defendant’s alleged act was the “product of mental disease or defect.” Essentially, under this test the question
was simply whether the legally relevant behavior was caused by the defendant’s mental illness, a concept
assumed to be well within the repertoire of mental health professionals [see § 8.02(b) for further discussion of
the M’Naghten and Durham tests].
The Durham test ultimately failed, however,24 because as we discuss in § 1.03(a), mental health
professionals have no conceptual basis for determining which behaviors are produced by “free choice” and
which behaviors are the products of mental illness. Simply medicalizing the terms of the insanity test does not
eliminate the much more fundamental philosophical differences between how the law and the behavioral
sciences explain human action. In Case Study 1.1, for example, the question of whether Mr. Drake’s
embezzlement was the “product” of a gambling disorder is not a medical question at all; knowing that Mr.
Drake’s behavior fits the gambling disorder diagnoses neither tells us whether or how the disorder “produced”
embezzlement nor answers the ultimate legal question of whether he should be held responsible for it. In
short, the differences between the questions the law asks jurors to decide and the questions behavioral sciences
answer will not be eliminated—although they may be clarified—by acquiring a working knowledge of key
concepts in the law (for mental health professionals) or the behavioral sciences (for lawyers).

(b) Bridging Attitudinal Differences

If hoping that training programs will eliminate problems in the interaction between law and mental health
seems naïve, viewing these conflicts as merely reflecting attitudinal differences is simplistic. Those who
emphasize the significance of these differences tend to see all lawyers (for example) as overly vigorous

35
advocates for the civil liberties for people with mental illness irrespective of their need for treatment.
Conversely, all mental health professionals are deemed to be paternalistic problem-fixers, undeterred by
concerns for individual liberty, who advocate hospitalization and treatment whether the context is civil
commitment, criminal trial, or sentencing. Such perceptions lead to the conclusion that reaching some middle
ground of attitudes toward people with mental disabilities would eliminate conflicts between the law and the
mental health professions; what is needed, this position remonstrates, is simply some consciousness raising.
Undoubtedly, there are substantial differences in the socialization of the professions. However, we believe
that differences between libertarian and paternalist attitudes are overemphasized as a source of disciplinary
conflict. First, as proponents of “therapeutic jurisprudence” note, rules based on a preference for autonomy
and rules meant to promote a person’s mental health may lead to the same ends.25 Second, attitudes differ as
much within the professions as between them.26 For example, the American Psychiatric Association has
commonly advocated for less deference to patients’ wishes and less cumbersome legal procedures in
decisionmaking about treatment than have the American Psychological Association and the American
Orthopsychiatric Association.27 And many lawyers tend to be paternalists themselves when they actually
encounter and work with people who have serious mental illnesses. This remains as true today as it did
decades ago, when Poythress found he could not get lawyers to take a more adversarial stance when
representing respondents in civil commitment actions.28 Although the lawyers Poythress observed could
recognize the inadequacies of testimony by mental health professionals (e.g., problems of reliability and
validity of diagnosis), they would not cross-examine testifying doctors vigorously, because they thought their
clients needed to be hospitalized. In short, particular attitudes are not the province of any one profession.
Rather, they are again the product of fundamental philosophical positions that may not be reconcilable.

(c) The State of the Art

A more significant source of trouble between law and the mental health professions, although still one that is
practical rather than philosophical, is the paucity of scientific knowledge concerning human behavior in many
contexts. Even if it were easy to translate knowledge about the behavioral sciences into legal concepts, mental
health professionals often have little legally relevant knowledge to apply. Moreover, when they do have such
knowledge, the conclusions that can be drawn from it may not be sufficiently reliable to warrant their use in
legal decisionmaking.
The state-of-the-art problems may be divided into three types. First, legal determinations usually concern
individuals, and what mental health professionals can say about individuals may not be precise or objective
enough to warrant admitting their opinions—or, if such opinions are admitted, to warrant placing much
weight on them. For example, mental health professionals who study violent behavior can make insightful,
scientifically grounded comments about social, psychological, and biological processes that precipitate
aggression in general. Yet when they discuss why a particular individual acted aggressively at a particular time,
they often invoke the same types of “folk psychology” explanations29 that laypeople do.30 In part, this is
because even when mental health professionals can adduce statistically demonstrated factors that help explain
individual behavior, the explanatory power of those factors is often only partial31 and may have limited
generalizability to specific situations outside the experimental setting.32 The ambiguity often found in legal

36
constructs can exacerbate this difficulty. While the accuracy of clinical opinions on some issues such as risk or
competency can sometimes be evaluated through studies of their reliability33 and validity34 (many of which are
described in this book), in other contexts, such as determinations of insanity, the legal norms are so variable
that a meaningful measurement of accuracy is virtually impossible.35
Irrespective of general uncertainties in the behavioral sciences, a second problem stems from lack of
knowledge that directly addresses questions asked by the law. For example, mental health professionals know
a good deal about how parents’ divorces affect their children. But as Chapter 16 explains, little of that research
is directly applicable to questions pertaining to custody disputes, either in individual cases or as a matter of
policy. Similarly, although many studies describe the types of cognitive impairments associated with
schizophrenia and other diagnoses, no instrument measures awareness of wrongfulness during antisocial acts
committed by mentally ill individuals, the key issue in insanity cases.36 Thus, although the state of knowledge
about general effects of divorce and the cognitive impact of schizophrenia may be rather advanced, the
literature may tell mental health professionals and courts very little about how to resolve legally relevant
questions. To return to Case Study 1.1, the considerable research on the effects of stress might seem relevant
to explaining Mr. Drake’s behavior, but virtually none of that research addresses how stress affects people’s
decisions about gambling or committing crimes.
A third state-of-the-art problem arises when questions asked by the law are inherently unanswerable.
Sometimes the differences between possible dispositions are so subtle that it is extremely unlikely that
behavioral science would ever advance to a point where their effects would be distinguishable. To give an
extreme example, one of us was once asked to evaluate a child in a divorce dispute to assess the relative impact
of spending one week a year versus two weeks a year with his mother. We know of no scientific findings that
even begin to address that question.

1.03. PARADIGM CONFLICTS

While it may be difficult to reconcile variations in attitude, flaws in training, or tensions created by state-of-
the-art problems, the most likely cause of rifts between the law and the behavioral sciences are differences in
paradigm. This section addresses the following questions: How might interactions between lawyers and
mental health professionals be affected by differing ways of conceptualizing problems? Do the differences in
the philosophies of law and science imply inherent conflict?

(a) Individual Choice versus Biology and Social Influences

Perhaps the most obvious philosophical difference between the law and the behavioral sciences is that the
former is predicated on the assumption that people act for reasons, can control themselves, and make choices
for which they may deserve praise or punishment. By contrast, the behavioral sciences generally seek to find
causes or influences on people’s behavior that people themselves are unaware of, do not choose, or do not
control. Indeed, the point of much behavioral science often is to show that the factors that really determine or
predict persons’ behavior are something other than those persons’ conscious, expressed reasons.
As an illustration of the difference between the law’s traditional explanatory motifs and those sought by

37
mental health professionals and behavioral scientists, consider the hypothetical case of John Doe, an
individual who has schizophrenia and who smokes a pack of cigarettes a day. Video footage shows Mr. Doe
entering a convenience store, where he waited near the checkout counter until the clerk looked away; then he
quickly grabbed a pack of cigarettes from behind the counter, stuffed it under his coat, and hastened out the
door. Security personnel gave chase and caught Mr. Doe as he was opening the pack of cigarettes in the store’s
parking lot. Police arrested Mr. Doe and charged him with misdemeanor theft.
The law assumes that most of us are responsible for our conduct because, as Stephen Morse puts it, we “are
the sort of creatures that can act for and respond to reasons.”37 In Mr. Doe’s case, the law might acknowledge
that Mr. Doe had a serious mental illness (schizophrenia). Yet his actions—waiting until the clerk’s attention
was directed elsewhere before taking the cigarettes, hiding the cigarettes under his coat, and hurrying out the
door—showed that he knew he was doing something illegal. No one forced Mr. Doe to steal the cigarettes by
threatening him. Mr. Doe just wanted some smokes but had no money, so he stole the cigarettes rather than
pay for them. He chose to break the law but got caught. Now, the law states, he deserves punishment for his
wrongdoing. As Morse states, “[t]he law properly treats persons generally as intentional creatures and not as
mechanical forces of nature” unless “an excusing condition, an affirmative defense, such as legal insanity
(essentially a rationality defect) or duress (a compelling ‘hard choice’ situation, such as a ‘do-it-or-else’ threat
at gunpoint) was present when the agent committed the offense.”38
This straightforward account of Mr. Doe’s criminal responsibility is insufficiently nuanced for many mental
health professionals. While they understand the meanings of guilt and innocence and the role of punishment
in a criminal justice system, to physicians, psychologists, and other professionals who use or create the
findings of behavioral scientists, the previous paragraph’s discussion of Mr. Doe’s conduct lacks real
explanatory value. Most people don’t steal cigarettes, behavioral scientists would note. The important
questions are these: Why did Mr. Doe steal them, and why did he do it when he did it?
In answering these questions, a behavioral scientist, especially one with a neurobiological background,
might point out, first, that sufferers of schizophrenia have a brain disease; specifically, they have abnormalities
in brain structure that lead (among many things) to reduced control over the release of dopamine and
glutamate, two of the chemicals that brain cells use to communicate with each other.39 Second, for persons
with schizophrenia who have no prior drug exposure, these abnormalities result in neural and motivational
changes similar to those seen in persons who have long-term substance use problems.40 Third, most
individuals with chronic schizophrenia smoke, and perhaps for good reasons: Nicotine interacts with many of
the disturbed neuronal pathways affected by schizophrenia and mitigates many of the brain-based
impairments that characterize schizophrenia.41 Smokers with schizophrenia, in other words, are medicating
themselves to get their brains to work better.
Fourth, recent discoveries show that repeated exposure to addictive substances (including nicotine) causes a
host of epigenetic changes that perturb levels of key intracellular protein, modify neuronal signaling, and alter
information processing in those brain circuits that control responses to stresses, rewards, and punishments.42
Thus we can posit a clear set of biological links from the inborn brain pathology of schizophrenia to nicotine
addiction to Mr. Doe’s failure to obey the law. Mr. Doe’s nicotine craving and intense pursuit of cigarettes
reflects disease- and addiction-altered dopamine functioning in those parts of his brain circuitry that are
required for self-restraint. His previous, chronic nicotine exposure has left him with abnormally enhanced

38
motivation to procure cigarettes; he, like other drug-addicted individuals, can be expected to engage in illegal
behavior to get drugs, even in the face of known adverse consequences.43
We also know (a behavioral scientist might continue) that the use of addictive substances is clearly affected
by factors such as low socioeconomic status and poor parental support, which are sources of stress that increase
vulnerability to drug use. Finally, the widespread availability of addictive substances and the criminal penalties
associated with their procurement is determined by social factors far larger than Mr. Doe’s decisionmaking.
The legislators who enact laws and set punishments (the behavioral scientist might suggest) are not always
well informed about or cognizant of the biological and social forces that really explain use of substances like
nicotine, alcohol, and psychoactive drugs and the behavior associated with such use, including crime.
This neurobehavioral explanation for Mr. Doe’s conduct focuses on questions quite different from those
that customarily concern the criminal justice system. Notice, moreover, how the neurologically based
explanation of Mr. Doe’s actions contrasts with what the law seeks to establish. When neuroscientists (and
scientifically knowledgeable mental health professionals) adduce biological explanations for mental problems,
they are not simply trying to say why mental disorders, including addictions, are often modifiable by
psychotropic medications. They are also recharacterizing what is happening when someone is mentally ill and
behaves in ways linked to the illness. More specifically, when neuroscientists talk about addictions,
schizophrenia, and many other severe psychiatric disorders, they often focus largely on problems with brain
processes and information processing, not on the beliefs and desires that occupy legal decisionmakers. In
doing so, they take human action outside the explanatory psychological framework that the law uses to assign
responsibility and blame.
One response to this approach to assessing responsibility, common among legal thinkers, is to point out
that most of the time we can find no direct link between an organic condition and someone’s behavior. We
know, for example, that many severe mental disorders have a genetic basis. Yet the relationship between genes
and disorder is generally one in which genetic factors account for only a portion of the variance. Genetic
factors merely predispose an individual to psychopathology; the psychopathology is activated only after the
individual has experienced something in addition—for example, events found in a pathogenic, stressful
environment.44 Moreover, although our knowledge of gene–environment interactions has grown enormously
in the last 40 years,45 we still cannot identify the inherited anatomical or biochemical abnormalities associated
with most instances of individual criminal acts.
This counterargument has some merit today.46 But as organic and other scientific explanations for behavior
have become more detailed and encompassing, this response has become weaker.47 A more important
counterargument against replacing individual choice with explanations that invoke biosocial causes is that all
behavior occurs in social contexts and is governed by people’s nervous systems. A biosocial explanation for
behavior provides no philosophical basis for distinguishing the lawfulness of behavior attributable to a
defective central nervous system and behavior emanating from someone with a “normal” nervous system. Both
types of behavior are shaped by genetic makeup in interaction with life experiences. To salvage this situation,
some thinkers have argued that humans are “caused causers” who can be held accountable for actions that are
the result of their reasons and beliefs (at least rational ones).48 From the perspective of neurobehavioral
scientists, however, the assumption that reasons and beliefs cause behavior, and the assumption that reasons
and beliefs are in any meaningful sense independent of prior, uncontrollable causes, are both dubious.49 Most

39
of the many clinicians who are more likely to focus on an individual’s social and interpersonal interactions
rather than organic explanations agree with this position.50
In short, if clinicians are theoretically consistent, the paradigm within which psychiatrists and many other
mental health professionals now work would appear to be in inherent conflict with legal worldviews.
Notwithstanding attempts at reconciliation by some commentators,51 the legal and mental health disciplines
use very different philosophical perspectives and approaches when they explain behavior. These differences are
of substantial significance as matters of policy in attempting to apply the behavioral sciences or clinical
opinions to legal problems.
However, the individual expert need not be paralyzed by this dilemma. Indeed, there is at least a partial
solution: Mental health professionals should be neither permitted nor cajoled to give opinions on the ultimate
legal issue (i.e., the conclusion that the factfinder—the judge or the jury—must ultimately draw). Although
practical problems result from this position [see § 18.07], we feel that clinicians should ideally resist requests
or the temptation to offer conclusions about legal notions such as “voluntariness” or “responsibility,” because
these are legal concepts. They are not matters of clinical or scientific expertise, even when mental health
professionals can testify about factors that might influence the factfinder’s conclusions about voluntariness and
responsibility. Rather, mental health experts should present factual findings and their scientific context, so
that the factfinder can fit them into the legal framework and make whatever moral–legal judgments follow.
To return to the problem of assessing the “voluntariness” of Mr. Drake’s embezzlement [see Case Study
1.1], a mental health expert might assist the factfinder by describing the types of choices Mr. Drake
confronted, given his particular characteristics and his specific situation. The mental health expert might also
explain that DSM-5 has classified gambling disorder among the “substance-related and addictive disorders”
because the “compulsive” behavior involved in problem gambling is very similar to addictive use of drugs;
moreover, gambling and drug addiction involve the same brain dysfunction and genetic liabilities.52 However,
whether his behavior was “involuntary”—whether the choice was so hard as to represent an “overbearing”
context—should be left to the factfinder. This “ultimate-issue issue” is discussed at greater length below [§
1.04] and in Chapter 18.

(b) The Process of Factfinding

Still another potential source of tension between the law and the mental health professions stems from how
each discipline seeks the truth. Mental health professionals often express discomfort with the adversary
process employed in Anglo-American law. Part of this discomfort probably stems from the different
socialization that students of the law and the behavioral sciences receive. Behavioral scientists and mental
health professionals often disagree amongst themselves, but they generally perceive their role as collaborative
and accept advancing knowledge and helping people as common goals. In their direct interactions with each
other, mental health professionals are best served by approaches that acknowledge others’ points of view, that
seek positive interpersonal relations, and that reduce or at least deemphasize conflict. By contrast, the law
often approaches disputes by sharpening conflict, with the aim of ensuring that issues in the disputes are
carefully posed and that they are resolved fairly in accordance with societal values. In view of these differing
functions, it’s no surprise that mental health and legal professionals differ in the comfort they experience when

40
dealing with conflict generally and adversariness in particular.
Indeed, to mental health professionals, legal rules governing the admission and consideration of evidence
seem at odds with the collegial approach of clinical practice and the collaborative outlook that characterizes
scientific inquiry. The resulting culture clash creates ambiguity and conflict about the standards to be applied,
leading naturally to the following question: Does forensic work inevitably result in some compromise of
mental health professionals’ principles, or at least in their mode of operation?53
Mental health professionals who want to contribute to legal proceedings need to accept and get
comfortable with how lawyers and courts handle disputes. This requires understanding that the purposes and
uses of forensic evaluations differ qualitatively from the purposes and uses of evaluations developed for
treatment purposes. Although mental health professionals may feel that the adversary system distorts their
conclusions by stimulating the presentation of only the evidence that is favorable to one side, they should
understand that the legal process is designed not just to uncover truth, but also to render justice. Due process
demands that each side have the opportunity to put forward whatever evidence best makes its case. This is not
to say that the law should or does ignore reality. But in legal proceedings, finding the truth is subordinate to
the pursuit of justice.54 Hence, as long as they maintain intellectual integrity, avoid changing their opinion
simply to suit the party that retains them, and acknowledge the limits of their observations and expertise,
mental health professionals should be undisturbed if they are “used” by one side in the dispute.55
A similar source of tension comes when experts find that their observations are “pigeonholed” into
categories that strip the clinical data of their richness. For example, for reasons explored earlier, courts are
often focused on the desires and beliefs that seem to motivate conduct, not the kinds of detailed personal
knowledge and social and cultural contexts that clinicians use to understand people.56 Similarly, clinicians may
feel constrained by certain legal rulings, such as the inability to talk about prior criminal offenses or what the
law regards as inadmissible “hearsay” that seems crucial to a well-based opinion.
Concern about these practices again arises from a misunderstanding of purpose. The law is fundamentally
conservative. What Justice Oliver Wendell Holmes stated in the late 19th century is still true: “historic
continuity with the past is not a duty, it is only a necessity.”57 Following precedent and rules of law is how
judges and lawyers convey their respect for the social institutions that courts protect, particularly the even-
handed and predictable administration of justice. For instance, the implementation of criminal laws governing
homicide often takes a single-minded focus on planning, because, for reasons developed over scores of years,
the law has pinpointed premeditation as the primary criterion for establishing murder. Similarly, the
evidentiary rule barring evidence of past crimes rests on the belief, reinforced through centuries of trial
practice, that otherwise the factfinder may convict a person for what he or she did in the past rather than focus
on whether facts support conviction on the current charge. Thus, although at times examination of the
evidence within a narrow historical framework may seem to pull attention away from the best interests of the
parties, such narrowness of concern ensures that specific points of dispute will be resolved justly.
Occasionally, however, jurists become so focused on normative analysis and historic legal values that they
carry precedent beyond its logical bounds. Sometimes, in their zeal to protect legal values, judges seem to
derive an “is” from an “ought”—that is, to assume that people in fact operate in the way that they think people
do or should. Such blinders to the real world promote unfair decisionmaking. For example, the United States
Supreme Court has justified placing limits on minors’ autonomy and privacy through empirically

41
unsupportable assumptions about adolescents’ competence and family life (e.g., that youth under age 18 years
are not competent to make treatment decisions).58 Basing the deprivation of liberty on invalid assumptions is
unjust and intellectually dishonest. If judges are in fact basing their decisions on particular values, they should
state those values clearly. Thus, to return to the example, if the Supreme Court wishes to support a particular
view of family autonomy—that parents should control the lives of their children until the age of 18 years—it
should say that this is a matter of policy preference. On the other hand, if empirical findings underlie a
particular legal analysis, whether of case facts or of legislative facts, the parties should be able to expect that a
persuasive display of evidence on point will turn the case.59

(c) The Nature of a Fact

Even if we could remove the clashes over explanatory relationships and disagreements about how to discover
such relationships, fundamental and probably more problematic epistemological differences between law and
the behavioral sciences would remain. Specifically, the two disciplines do not conceptualize a “fact” in the
same way. This definitional issue is linked closely to the process issue just discussed, in that whether the law
and the behavioral sciences recognize particular information as a relevant “fact” depends on whether the
respective truthfinding process has been followed. For clarity of analysis, we separate the process of finding
facts from the question of whether a fact exists, and we turn now to the latter issue.

(1) From Probability to Certainty

Perhaps the most basic problem rests in differing conceptions about the role of probability assessments.
Although the sciences are inherently probabilistic in their understanding of truth, the law demands at least the
appearance of certainty, perhaps because of the magnitude and irrevocability of decisions that must be reached
in law. As Haney has noted, “there is a peculiar transformation that probabilistic statements undergo in the
law. The legal concept of ‘burden of proof,’ for example, is explicitly probabilistic in nature. But once the
burden has been met, the decision becomes absolute—a defendant is either completely guilty or not.”60
To give an example of this difference in conceptualization of facts, suppose that a construction company is
charged with negligence after a bridge that it built collapses. Specifically, the company is alleged to have used
steel rods that were too small for the construction needs. A civil engineer is asked, as an expert, to measure the
rods and to determine the width that the rods should have been in order to provide a safe structure. The
engineer might take several measurements of the rods and conclude that the probability is greater than .95
that the true width of the rods was between 1.35 meters and 1.37 meters, when measured at 24°C. The
engineer then might consider the probability of contraction to a given length at the lowest temperature
observed in the bridge’s locality, and consider the further probability of an even lower temperatures occurring
in the future. Yet from a legal perspective, the “fact” that the judge or jury must determine is either that the
rods were too small, or that they were not. Although the legal standard of proof applied to this judgment—
preponderance of the evidence—acknowledges the possibility of error, the judge or jury makes a conclusion of
fact in an all-or-none fashion.
This difference in conceptualizing facts may seem rather trivial at first glance, but its import is actually

42
quite substantial. Because of the law’s preference for certainty, experts may feel tempted to reach beyond
legitimate interpretations of their data both to appear “expert” and to provide usable opinions. Similarly, legal
decisionmakers may disregard testimony properly given in terms of probabilities as “speculative,” and may
attend instead to experts who express categorical opinions about what did or will happen. The result is a less
properly informed court. The risk of distorting the factfinding process is particularly great in the behavioral
sciences, given that single variables rarely account for more than 25% of the variance in a particular
phenomenon, and that the reliability and validity of observations by mental health professionals are far from
perfect.
Part of the problem is simply intellectual dishonesty, however well intended it may be. In the desire to be
helpful, experts may permit themselves to be seduced into giving opinions that are more certain than the state
of knowledge warrants. Yet doing so is contrary to the ethical guidelines of forensic psychologists and
psychiatrists, which rightly direct practitioners to describe the uncertainty in their conclusions.61 These
admonitions should be followed even though such honesty may result in the courts’ reducing the weight
accorded the testimony.62
The problem is not simply one of professional ethics, however, or even of overzealousness by attorneys in
their attempt to elicit strongly favorable opinions from experts. The style of clinical decisionmaking itself (as
opposed to that of scientific research) often may not be conducive to a nuanced truthfinding process.
Although researchers customarily report their findings in terms of probability statements, practitioners often
must make yes-or-no judgments. To develop and implement treatment plans, for example, clinicians must
decide what they think the problem is and how best to treat it, despite the scientific limitations of their
diagnostic and therapeutic powers. If this style of thinking and decisionmaking is carried into the reporting of
forensic evaluations, the legal factfinder may be misled as to the certainty of the conclusions.
Unfortunately, this style of presentation—especially when it is “idiographic” in nature (i.e., case-centered
rather than based on group data)—is often statutorily required63 and is preferred by the courts as well as
lawyers. For instance, testimony like the statements in Case Study 1.1 that Mr. Drake was irrational and
anxious will virtually always be accepted by the courts. But testimony in the form of probabilities, such as the
statements in that case about the percentage of gamblers who commit forgery and other crimes, may be given
less credence because they are expressed in relative terms. This reluctance toward accepting probabilistic
information is especially serious if the topic is one on which academic psychologists are more likely to be
expert, such as the reliability of eyewitness testimony.64 In any case, the general point is that even if it
heightens the discomfort of both clinicians and courts, clinicians involved in the legal process should aim to
think like scientists and give an accurate picture of probabilistic findings.
This general admonition is appropriate even in jurisdictions that attempt to transform probabilistic
judgments into certain facts by applying the standard of “reasonable medical (or psychological or scientific)
certainty” when deciding the admissibility of expert testimony. Both courts and professionals are likely to have
idiosyncratic subjective judgments of “reasonable certainty”;65 moreover, even “uncertain” opinions may still be
relevant and of assistance to the trier of fact, provided that the conclusions have some probative value and are
not prejudicial. Most important, the standard of reasonable certainty may itself result in prejudicial opinions,
because the “certainty” standard masks the fact that the underlying judgments are merely probabilistic. Experts
should leave to the judge the question of whether the opinions are so uncertain as to be unhelpful.

43
 (2) From Group to Individual

As already noted, the scientific database for the behavioral sciences on which all researchers and many
clinicians rely develops principles of behavior by comparing groups that differ on a particular dimension.
Given that in psychology a particular variable will almost never perfectly account for the variance in another
variable, experts must decide how well group-based psychological findings apply to specific individuals—a
scenario that has been called the “G2i” (general-to-individual) issue.66 Although this usually does not cause
problems for the experts themselves, it is a major conceptual obstacle for legal factfinders and may result in
rejection of the experts’ opinions.
Some examples based on actual cases illustrate the significance of the philosophical dilemmas that are
presented when nomothetic principles67 are applied to the resolution of individual cases.

Case 1.68 The defendant’s 14-year-old daughter accused him of raping her. Two months later (and on two subsequent occasions), she
wrote statements recanting her accusation; she said that she had lied so she could get “out on her own.” However, at trial, she returned to
her original story. Experts testified that such inconsistency is common among victims of incest.

Case 2.69 The defendant was charged with third-degree murder of his three-month-old son. An expert on child abuse testified that the
pattern of injuries was consistent with “battered-child syndrome.” He testified further that abusing parents tend to have been abused as
children themselves, and that they are prone to a number of negative personality characteristics (e.g., short temper and social isolation).
The state then called two witnesses from the defendant’s past (his caseworker as a youth; an employee of a therapeutic school he had
attended). The caseworker testified that the defendant had been abused; both testified that the defendant had many of the personality
traits identified by the first expert. Other witnesses provided additional testimony suggesting that the defendant possessed
characteristics that the expert had said were common to battering parents.

Case 3.70 The defendant was stopped by Drug Enforcement Administration (DEA) agents after she disembarked from an airplane at the
Detroit Metropolitan Airport. The DEA agent’s suspicions were aroused because the defendant’s behavior fit a “drug courier profile”:
(1) The plane on which she arrived had originated in a “source city” (Los Angeles, thought to be the origin of much of the heroin brought
to Detroit); (2) she was the last person to leave the plane; (3) she appeared to be nervous and watchful; (4) she did not claim any luggage;
and (5) she changed airlines for her flight from Detroit. On questioning, the defendant appeared nervous, and the agents discovered that
she had purchased her ticket under an assumed name. A search revealed heroin hidden in her undergarments. The defendant contested
the search on the ground that the agents had no reasonable basis for suspecting that she was involved in criminal activity and for
stopping her for an investigation. Testimony at trial indicated that during the first 18 months of the surveillance based on behavioral
profiles, agents had searched 141 persons in 96 encounters and had found illicit substances in 77 instances.

Case 4.71 After serving his sentence for rape, an offender is committed at a civil hearing under the state’s sexual predator statute because
he is judged likely to engage in future acts of sexual violence, based in part on a risk assessment instrument that assigns him a 58% risk to
commit a violent act within seven years of release to the community. He argues that his risk classification is inappropriate, because the
psychological test predictions are based in part on his parents’ misbehavior (e.g., parental alcoholism) and in part on his failure to meet
diagnostic criteria for schizophrenia. Moreover, he asserts that he has “reformed” since participating in a prison-based treatment
program for sex offenders, and that he should be considered to be among the 42% of “very-high-risk” offenders who will not be
recidivists.

These four cases starkly pose the question of whether attention to probability data in the legal system is
legitimate.72 They represent four different problems (respectively, whether a crime occurred, the identity of a
past legal actor, the identity of a present legal actor, and the identity of a future legal actor).73 Is the issue of
whether to consider this type of probability evidence merely a function of its reliability and explanatory power,
or is there something inherently unfair about making determinations of past, present, or future guilt based on
data about groups of similar people?

44
 A thorough consideration of these issues was presented in an early but still influential article by Tribe,74
who concluded that for the most part,75 the law should bar evidence expressed in mathematical probabilities.
Tribe raised a number of objections to “precision” in the consideration of evidence:

1. Probability estimates are themselves inherently probabilistic; that is, the precision of the probability
estimate itself must be considered. Take, for example, a case in which eyewitnesses saw a blue-eyed, blond-
haired male rob a bank in a small New Mexico town. To assess the probability that a defendant who meets the
physical description and was found in the town is indeed the robber, jurors must take into account the
accuracy of the initial eyewitness’s account and the imprecision in statistical estimates of how often people
with these characteristics are found in small New Mexico towns. Consequently, the presentation of a single
statistic or even a string of statistics may be deceptive. Moreover, jurors’ consideration of the data may be
complicated by statistical interdependence. For example, blue eyes and blond hair are correlated, so one
cannot do a simple computation to learn the probability of their joint occurrence.
2. The presumption of innocence may be effectively negated by permitting consideration of the probability
that a person with X characteristic is guilty.76 For instance, direct consideration at trial of such probabilities
will necessarily force the factfinder to include in the calculus the probability of guilt that is associated merely
with having been brought to trial. Presumably this initial probability is greater than zero, despite legal
assumptions to the contrary.
3. “Soft” variables will be dwarfed by more easily quantifiable ones.77 To return to our example of the bank
robber, attention to the defendant’s physical characteristics might divert attention from the probability that he
has been framed.
4. The “quantification of sacrifice” (i.e., the recognition of the risk of a wrongful conviction) is intrinsically
immoral.78 It seems unjust to tell a defendant that the jury is willing to tolerate X risk of error in convicting
him.
5. Reliance on statistical evidence dehumanizes the trial process by diminishing jurors’ ritualized intuitive
expression of community values.79 Rather than clarify the jury’s role in expressing the will of the community,
statistical evidence will obscure this role and make the legal process seem alien to the public.

Although Tribe articulated important issues, we are more persuaded by Saks and Kidd’s critique of his
article.80 First, Tribe’s analysis relied in part on unverified psychological assumptions (e.g., jurors will be
overly influenced by quantified evidence, and jurors in the present system feel subjectively certain in their
judgments when they reach a verdict based on a standard of “beyond a reasonable doubt”). Second, research
on the intuitive information processing preferred by Tribe suggests that jurors will make errors of analysis in
their consideration of implicit probabilities unless the actual probabilities are brought to their attention.
Third, as Tribe himself acknowledged, all evidence is ultimately probabilistic, regardless of whether it is
quantified. Simply pretending that it is not probabilistic and ignoring the clearest, most specific evidence do
not lead to morally superior decisionmaking.
At the same time, accuracy of evidence is not the only concern. Other legal considerations may counsel
limiting or excluding even relatively reliable probability evidence in some types of cases. Two such concerns
are particularly important. The first is that certain types of information used in probabilistic testimony,

45
although scientifically relevant, may not be legally cognizable. For instance, reliance on race as a statistical
predictor may be impermissible for constitutional reasons, even if it is correlated to a legally relevant variable;
the Supreme Court has stated that basing a criminal sentence on race, even “in part,” “is a disturbing departure
from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they
are.”81 Indeed, some have argued that, at least in the criminal sentencing context, every factor over which one
has no control (e.g., parental alcoholism, and perhaps an offender’s schizophrenia) should be banned as a basis
for an actuarial determination.82
A second concern is the effect probabilistic information may have on the factfinder. Tribe exaggerated the
layperson’s inability to understand such information. But there is a danger that if and when it is understood,
statistical information will assume too much prominence in the factfinder’s decisionmaking process, at least
when it is used by the state to bolster the preconceived and often incorrect notions of the factfinder. This
danger of “prejudice,” to use the legal term,83 is probably greatest in the criminal context in cases such as the
four described above, where the stakes are high in terms of threats both to individual freedom and to public
welfare.
Probably the least prejudicial use of probabilistic information is in connection with police investigation.
Using behavioral science techniques to construct a “profile” of offender characteristics that might be associated
with a particular kind of crime, law enforcement agents have tried to narrow the range of suspects in a given
case (as in Case 3). Although this approach is not without problems,84 at least it is relegated to the
investigative phase of trial, where probability assessments are inherent and thus more easily countenanced.85
Use of such evidence in criminal adjudication (Cases 1 and 2), where the legal objective is to determine
definitively whether this defendant committed a crime, is much more problematic. For instance, when applied
to a criminal defendant on trial (as in Case 2), such evidence is character evidence, which is not ordinarily
admissible unless the defendant puts character at issue by claiming that he or she is not the type of person who
would commit the crime.86 Even though well-designed research may show a substantial correlation between
particular traits and involvement in particular kinds of offenses, the law deems such information too
prejudicial to permit except in response to defense assertions. As the Supreme Court stated, defendants must
be convicted based on what they did, not who they are.
The character evidence rule is not applicable when profile evidence is used to suggest that a crime occurred
(Case 1). Thus initial prosecution use of such evidence has often been permitted, most often as expert
testimony to suggest that the purported victim shows behavioral characteristics exhibited by victims of a
particular kind of offense [see §§ 8.03(c), 15.04(c)(4)]. Here too, however, syndrome evidence can create
problems. Even if it is strong scientifically, it may be inherently misleading because of the difficulty most
people have in processing base rates.87 For example, Table 1.1 presents a hypothetical case in which an
extraordinarily valid profile of a sexually abused child—far more valid than anything currently available—still
would result in only a 32% probability that a randomly selected child showing the profile would have recently
been abused. Yet a judge or jury, once hearing that the victim met the profile, would probably not believe the
probability to be so low. Nor would telling them how low it is be likely to diminish the profile’s impact, as the
mere fact that a prosecution has been brought already has created the strong impression that a crime must
have been committed. Thus a “defendant-first” rule barring such probabilistic data unless the defendant opens
the door, analogous to the character evidence rule, might be appropriate here as well unless the profile

46
evidence is very strong.

TABLE 1.1. Probability That a Child Fitting a Hypothetical Profile of a Sexually Abused Child Actually Has Been Recently Abused

1. There are about 74 million children and youth in the United States.
2. Assume that 5% have been sexually abused recently.a
3. Therefore, 3.7 million children and youth have been recently sexually abused; 70.3 million have not.
4. Assume that 90% of the children found to fit the profile of a sexually abused child on the Melton Magnificent Measure (MMM) have
recently been sexually abused, while 10% of those who fit the profile have not been abused.
5. Sally Doe fits the MMM profile.

What is the probability that Sally has been recently sexually abused?
3.7 million × 0.90 = 3.3 million true positives (TPs)
70.3 million × 0.10 = 7.0 million false positives (FPs)
3.3 million TPs + 7.0 million FPs = 10.3 million positives (Ps)
3.3 million TPs divided by 10.3 million Ps = 0.32

Therefore, the hypothetical probability (under a scenario of far more pronounced base-rate differences than is true in reality) is only about 1 in
3!

a
This hypothetical percentage probably substantially exceeds the actual base rate of recent sexual abuse. Community surveys (most of them
retrospective) to determine prevalence at any point during childhood have yielded median prevalence rates of 15% for females and 6.5% for
males. Stefanie Doyle Peters et al., Prevalence, in A SOURCEBOOK ON CHILD SEXUAL ABUSE 15, 20–21 (David Finkelhor ed., 1986).

In forward-looking decisions (e.g., commitment predicated on future risk, as in Case 4, or the commitment
decision in Case Study 1.1), the inquiry is, as with investigation and unlike at trial, inherently probabilistic;
actuarial data are thus directly relevant [see § 9.09(c)]. Here too, however, the possibility exists that such data
will overly impress the factfinder, at least when used by the state to confirm the likely assumption of the
factfinder that a person who has just committed a crime will offend again.88 Although research suggests that
actuarial risk assessment is less likely than nonactuarial, clinical testimony about risk to overinfluence the
factfinder,89 courts considering the use of actuarial information should ensure at the least that the data come
from a relevant population and that the factfinder understands its nomothetic nature. More is said about all
these issues at relevant points of this book.

1.04. SHOULD MENTAL HEALTH PROFESSIONALS BE CONSIDERED

EXPERTS?

As the preceding discussion illustrates, and as we reiterate below, some controls on mental health testimony
are necessary in circumstances in which it is inherently misleading or prejudicial. Nonetheless, we retain our
general preference for liberal use of behavioral science expertise. To explain this view, we come now to what
may be the core problem in contemporary forensic mental health: Should mental health professionals be
recognized as experts by the law, and if so, for what purposes? Before discussing the courts’ answer to this
question, we give our own. In doing so, we refer liberally to the Federal Rules of Evidence, the relevant parts
of which are listed in Table 1.2. Because most states have adopted all or part of these rules, they will form the
baseline for our analysis.

TABLE 1.2. Federal Rules of Evidence, Article 7: Opinions and Expert Testimony

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 Rule 701.
OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 702.
TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or 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
(a) the testimony is based upon sufficient facts or data, (b) the testimony is the product of reliable principles and methods, and (c) the witness
has applied the principles and methods reliably to the facts of the case.

Rule 703.
BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value
in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Rule 704.
OPINION ON ULTIMATE ISSUE

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a
defendant in a criminal case 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. Such ultimate issues are matters for the trier of fact alone.

(a) The Definition of Specialized Knowledge

The first point to note is that whereas laypersons may generally testify only about what they have directly
observed (see Rule 701), experts may testify as to opinions if the “specialized knowledge” of the witness will
“assist” the trier of fact in determining a relevant issue (Rule 702). Rule 702’s insistence that the expert assist
the factfinder is derived in part from the democratic principle that everyone is equal before the bar of justice,
and that professional education in itself does not confer special status in the legal system. It follows that
occupational status should not infringe the societally designated authority of the judge or jury to decide the
case at hand.90 Experts should be able to go further than lay witnesses only if doing so would provide
specialized information that will help the trier of fact to understand the evidence presented.
In analyzing the import of Rule 702’s requirement that opinion evidence be based on specialized
knowledge that can assist the factfinder, it helps to consider the several levels of opinion that an expert might
render. For example, in considering whether a defendant meets the M’Naghten test of insanity [see § 8.02(b)],
the following levels of inference might occur, all of which represent increments in opinion formation:

1. Application of meaning (perception) to a behavioral image (e.g., “He was muttering”).

2. Imputation of a general mental state (e.g., “He appeared to be talking to someone who was not present”).
3. Formulation of a general mental state that is consistent with theoretical construct or the research
literature, or synthesizes observations (e.g., “His behavior during the interview was indicative of having

48
 auditory hallucinations”).
4. Diagnosis (e.g., “His behavior during the interview and his reported history are consistent with having
schizophrenia”).
5. Relationship of formulation or diagnosis to legally relevant behavior (e.g., “At the time of the alleged
offense, his psychosis impaired his ability to carefully consider the consequences of his behavior”).
6. Elements of the ultimate legal issue (e.g., “Although his mental illness limited his ability to reflect upon or
care about the illegality of his behavior, he knew that he was stealing a pack of cigarettes and knew that
stealing the cigarettes was illegal”).
7. Ultimate legal issue (e.g., “He was sane at the time of the offense”).

In considering the question of which, if any, levels of inference mental health professionals should be
permitted to state in their testimony, most scholarly commentators agree:91 Despite the fact that such
opinions are commonly requested and even expected by courts, mental health professionals ideally should
refrain from giving opinions as to ultimate legal issues. As we have already seen, the constructs about which an
opinion might be sought (e.g., voluntariness) are often inconsistent with the model of behavior on which an
expert’s observations are based. Even when the constructs appear familiar, however, experts should avoid
giving ultimate-issue opinions; questions as to criminal responsibility, suitability for commitment, parental
fitness, and so forth are not based on “specialized” knowledge, but are legal and moral judgments outside the
expertise of mental health professionals qua mental health professionals. For example, the types of behavior
that constitute “mental disorders” as a matter of law may be substantially different from the range of
conditions that mental health professionals categorize as “mental disorders.” Similarly, a court’s decision about
dangerousness involves a legal judgment about whether the probability of particular kinds of behavior is high
enough to warrant state intervention. While mental health professionals can certainly offer probative evidence
about parenting skills or risk, the ultimate determination of whether a person is “fit” to parent or dangerous is
the court’s. When experts give ultimate-issue opinions, they usurp the role of the factfinder and may mislead
the factfinder by suggesting that the opinions are based on their specialized professional knowledge rather
than their personal judgment.
Although Rule 704(a) allows experts to give opinions on ultimate issues, Rule 702 prohibits admission of
any opinion not based on specialized knowledge—a prohibition that presumably can include ultimate-issue
opinions. Indeed, Rule 704(b) (an amendment to the original Rule 704 that was inspired by John Hinckley’s
acquittal on insanity grounds) makes this point concretely with respect to mental state testimony in criminal
cases. The position we take is that ideally, the same evidentiary prohibition should apply to all types of cases.
Thus, even if a court permits ultimate-issue opinions to be admitted as a matter of law, we recommend that
mental health professionals not volunteer such opinions because of the explicit or implicit misrepresentation of
the limits of expertise involved if a clinician, acting as an expert on mental health matters, gives an opinion on
a legal issue.92 Even in cases where courts or statutes request or expect ultimate-issue statements, the
thoughtful mental health professional should always ask him- or herself, “To what extent is my response the
product of my expertise as a clinician? Does my opinion actually stem from my moral sensibility or my
common sense as a citizen?” If the latter, the expert should try to avoid offering the opinion (perhaps by
testifying, “That’s the issue the court must decide”); if such an opinion is demanded, it should be described as

49
a legal, moral, or common-sense judgment, not a psychological or medical one (“Given my findings, it would
make sense for the court to conclude . . . ”).
Under this reasoning, clinicians would not volunteer opinions at level 7 in the hierarchy set out earlier.
Testifying that a person is “sane,” “dangerous,” “competent,” “parentally fit,” or “disabled” (for workers’
compensation or Social Security purposes) tramples on both legal and ethical domains. Testimony at level 6 is
concerning as well, because the clinician will be using legally defined language. Admittedly, a rigid prohibition
on testimony at this level may sometimes be an artificial constraint. Talk about whether criminal defendants
“knew” their act was “wrong” (both aspects of the M’Naghten test), even if banned, can easily be replaced with
testimony about whether defendants were “aware” or “remained able to recognize” that they were breaking the
law (consider, in this regard, the testimony in Case Study 1.1). Similarly, it is often difficult to discuss
competence to proceed without directly discussing a defendant’s ability to assist counsel—one of the elements
of the competence standard [see Chapter 6]. However, the question of how much “knowledge” or “awareness”
a defendant must have to be sane, or the extent to which defendants must be able to “assist” their attorney to
be competent, is a decision for the court to make. Consequently, clinicians should at the least avoid parroting
the language of the legal test without explanation, unless statutes or the questions posed during testimony
demand that they do otherwise.93
The question is harder with respect to opinions based on intermediate levels of inference (2 through 5 in
the list above, as well as statements at level 6 that avoid legal language). The most articulate proponent of
exclusion is Morse, who has argued that only two types of testimony by mental health professionals (when
testifying in that capacity) should be permitted.94 First, Morse would permit presentation of “hard actuarial
data,” when relevant and available. Second, because mental health professionals usually have much more
experience with “crazy” persons than do laypersons, and thus are likely to be better observers of the kinds of
behavior that may be legally relevant, he would allow them to present their observations of behavior. For
example, Morse believes that mental health professionals are likely to be more skilled than laypersons in
asking the right questions to elicit information about hallucinations, suicidal plans, and so forth, and should
thus be able to describe the answers to those questions.
On the other hand, Morse would not allow opinions as to the meaning of the behavior; he would bar
mental health professionals from stating conclusions on ultimate issues, and from giving testimony about their
formulations and diagnoses as well. Therefore, the role of mental health professionals would be that of
specially trained fact witnesses. Morse has summarized his objections to most expert testimony by mental
health professionals on the following grounds:

[F]irst, professionals have considerably less to contribute than is commonly supposed; second, for legal purposes, lay persons are quite
competent to make judgments concerning mental disorder; third, all mental health law cases involve primarily moral and social issues and
decisions, not scientific ones; fourth, overreliance on experts promotes the mistaken and responsibility-abdicating view that these hard moral
questions (i.e., whether and in what way to treat mentally ill persons differently) are scientific ones; and fifth, professionals should recognize
this difference and refrain from drawing social and moral conclusions about which they are not expert.95

We have already indicated our agreement with Morse as to his third, fourth, and fifth points. We also
agree for the most part with his second point: Whether a person appears sufficiently disabled to warrant
special legal treatment is an intuitive social and moral judgment. Diagnosis, for example, is often irrelevant to
mental health law questions.96

50
 However, we part company with Morse with respect to his first point. We recognize the well-known97
limitations of mental health assessment and prediction. The literature with respect to specific forensic
questions is reviewed in more detail throughout this volume. Yet, although we share Morse’s preference for
testimony based on valid, quantified research, we would still permit mental health professionals to offer other
opinions short of the ultimate issue.
In our view, Morse underestimates the degree to which mental health professionals can assist the factfinder
in making legal judgments, provided that professionals both know and acknowledge the limits of their
expertise. As Bonnie and Slobogin pointed out,98 the law’s approach to the admissibility of expert opinions is
incremental: The main consideration, as formulated in Rule 702 of the Federal Rules of Evidence, is whether
the opinion will assist the factfinder—not whether it is dispositive. Stated somewhat more precisely, the
question is whether the probative value of the evidence outweighs its tendency to be inefficient, misleading, or
prejudicial.99 Of course, Rule 702 now contains a clause (added in 2000) that limits experts to testimony based
on “sufficient facts or data” and on “reliable principles and methods” properly applied to the facts of the case.
To the extent that this language—the genesis of which is discussed more fully below—leads courts to inquire
more deeply into the extent to which the basis of expert testimony is verified, we think it is all to the good.
But consistent with the foregoing comments, we do not think that “reliability” ought to be defined in a way
that would lead to admission of only those opinions that are based on “hard data”; nonstatistical methodology
or principles can produce informed clinical beliefs that should be admissible as well.100
Clinical beliefs and testimony about them often rely on a body of specialized, professional knowledge (i.e.,
knowledge commonly unshared by the lay public) that can assist legal factfinders in making informed
judgments—judgments that would otherwise be based on even more speculative assessments. Melton,
Weithorn, and Slobogin administered a test of knowledge about clinical syndromes commonly observed in
criminal and juvenile forensic practice and the research relevant to those syndromes to samples of mental
health professionals and trial judges.101 Mental health professionals’ performance was generally superior to
that of judges; when the latter were compared to mental health professionals specialized in forensic practice,
the differences were especially marked.
Even when the research basis of opinions is weak, there may be instances in which the underlying
knowledge is sufficiently great to warrant the admission of the opinions. For example, in contrast to Morse,
we favor admission of psychological formulations and diagnoses (levels 3 and 4 in the typology of inference set
out earlier) in many legal contexts. Such opinions are not based on precise “science,” but that does not make
them either mere folklore nor homespun wisdom. The argument here is analogous to Morse’s approval of
mental health professionals as trained observers of “crazy” behavior. Mental health professionals are trained
and experienced in observing, explaining, and categorizing abnormal behavior. Even if these formulations are
mere “stories,”102 they can provide plausible explanations that would otherwise be unavailable to the trier of
fact, and that can give a defendant’s behavior context and narrative coherence.103 If such explanations are
delivered with appropriate caution, they may well assist the factfinder in reaching a judgment, even though
they have not been or cannot be verified.104

(b) Limitations on the Use of Specialized Knowledge

51
Mental health professionals may provide factfinders with more assistance in some contexts than in others.
Their knowledge and conclusions seem particularly germane when their testimony rebuts allegations made by
the state designed to deprive the individual of liberty (as in civil commitment proceedings, criminal trials, and
sentencing hearings). In such situations, it may often be unjust to deprive a defendant of the chance to bring
appropriately framed evidence before the factfinder. As a matter of fairness, if the criminal law allows defenses
based on subjective mental states (as most jurisdictions do), then defendants should be allowed to present
expert opinions that bear on their mental state, even though mental health professionals cannot “scientifically”
verify what someone was thinking several months earlier. Indeed, given the right to testify, defendants may
have a constitutional right to present their exculpatory mental states through an expert, even when the expert’s
testimony consists of interpretations about the defendant’s behavior rather than “scientific” findings.105 More
generally, knowledge derived from the medical and behavioral sciences can be especially valuable when the
information presented challenges jurors’ misconceptions (e.g., the belief that people intend their actions, or
the belief that “everyone knows their Miranda rights”106)—a point we develop in other parts of this volume
[see, e.g., § 8.03(b)].
At the same time, mental health testimony—whether interpretive or more scientific in nature—raises
serious moral questions if it goes unchallenged, particularly if the testimony invokes the upper levels of
inference discussed earlier. In insanity trials, capital sentencing proceedings, or parental fitness hearings,
experts usually have to defend their views in the face of cross-examination, and factfinders usually hear
testimony from rebuttal experts. But some proceedings—civil commitment and competence-to-proceed
hearings, to name but two—often resemble star chambers, where a lone expert’s word is dispositive. In such
situations, clinicians should try, at the least, to explain their inferences whenever they answer questions that
require responses above level 1 testimony.107
In summary, although the testimony that mental health professionals offer courts should ideally exclude
opinions of a purely moral or legal nature, courts should allow professional opinions that can assist the trier of
fact, especially when they are likely to challenge factfinders’ presumptions about human behavior and
motivation. At the same time, lawyers and judges should be sensitive to the prejudicial impact that mental
health testimony may have, particularly when it goes unchallenged. And ethical mental health experts should
always strive to explain their testimony and the limitations on the validity or certainty of their opinions.108

(c) Expertise under Frye and Daubert109

The foregoing considerations set the stage for an examination and critique of the law’s current approach to
admitting testimony from mental health professionals. Most courts follow virtually none of our suggestions,
much less those proposed by Morse. Similarly, to the extent that judges pay attention to Rule 702, they
usually make only cursory assessments of how reliable mental health testimony will be.
Until 1993, the dominant test for evaluating clinical testimony in federal court and many state courts was
the Frye rule, which originated in the 1923 case of Frye v. United States.110 That decision, involving an
attempt to introduce the results of an early polygraph test, held that to be admissible, scientific evidence
should be “sufficiently established to have gained general acceptance in the particular field to which it
belongs.”111

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 Traditional clinical testimony about competence, sanity, and dangerousness has generally been immune
from Frye challenges. Some courts have simply claimed that the behavioral sciences should not be governed by
rules relating to the “physical sciences,”112 while others have assumed that most mental health professionals
would agree that clinical opinions are based on “generally accepted” theories.113 In contrast, courts frequently
banned more novel clinical testimony under Frye—sometimes because the diagnosis at issue had not yet
appeared in the Diagnostic and Statistical Manual of Mental Disorders (DSM),114 or if it had, because the
relevant field was too small, or the evidence for the relevant theory too meager.115
Critics of the Frye rule regard it as unduly conservative. By requiring general acceptance, the rule excludes
evidence that may be new yet scientifically valid. At the same time, the Frye test seems to permit admission of
evidence based on faulty ideas that nonetheless have general acceptance despite their limited scientific basis
(e.g., clinical predictions of dangerousness). Nonetheless, many courts retained the Frye rule because of the
time and expertise required to make case-by-case determinations of scientific merit. Under Frye, a court needs
merely to learn whether a particular technique is “generally accepted,” rather than carefully balance its
relevance against is prejudicial impact.116
In 1993, however, the evidentiary landscape seemed to change with the United States Supreme Court’s
decision in Daubert v. Merrell Dow Pharmaceuticals.117 This unanimous holding rested on a straightforward
legal analysis: when Congress adopted the Federal Rules of Evidence in the 1970s, it did not intend to
incorporate the “austere” Frye standard into the new Rules promoting “liberal” admission of evidence.118 The
Court’s opinion added extensive dicta,119 joined by seven of the nine Justices, about the types of factors courts
might consider in weighing whether to admit proffered scientific evidence. By implication, that discussion,
written by Justice Blackmun, provides guidance to experts and attorneys preparing the presentation of
opinions.
Probably the most important point made in Daubert is that bright-line indicia of reliability (e.g., whether
general acceptance has been obtained, or even whether peer review has occurred) are inconsistent with the
balancing test implicit in the requirement for specialized knowledge that will assist the trier of fact. Thus, the
Court stated, Frye’s “threshold” standard of scientific reliability or expert credibility was misguided. The Rules
of Evidence, Justice Blackmun wrote, are “designed not for cosmic understanding but for the particularized
resolution of legal disputes.”120
As to how the admissibility of scientific evidence should now be gauged, Daubert made clear that the
opinion must be based on “an inference or assertion . . . derived by the scientific method”; that is, the court
should decide “whether the reasoning or methodology underlying the testimony is scientifically valid and . . .
whether that reasoning or methodology properly can be applied to the facts in issue.”121 While noting that its
list was not exhaustive or dispositive, the Court offered four criteria to use in determining admissibility:
whether the theory or technique that forms the basis for the opinion can be and has been tested; “the known
or potential rate of error” associated with the technique being used; and two Frye-like factors, “whether the
theory or technique has been subjected to peer review and publication,” and whether it has been met with
“general acceptance” by experts in the relevant scientific community.122 Blackmun emphasized that Rule 702
prescribed a “flexible” inquiry, with the “overarching” focus to be on “the scientific validity—and thus the
evidentiary relevance and reliability—of the principles that underlie a proposed submission.” He further
clarified that “the focus, of course, must be solely on principles and methodology, not on the conclusions that

53
they generate.”123 Thus new but valid ideas not yet generally accepted in the scientific community were not
barred from consideration by judges and jurors.
Although these latter comments sound more “liberal” toward admission of expert testimony than Frye, the
thrust of Daubert is actually conservative. Not only does the decision retain peer review and general
acceptance as factors to consider in the admissibility inquiry; its other two factors focus entirely on whether
the basis of testimony has undergone any “testing.” Such an emphasis on scientific validity could have a
particularly significant impact on the admissibility of testimony based on “soft” social sciences. Shortly after
the Daubert ruling, one commentator asserted that “read literally,” the decision “would dictate the end of the
receipt of psychiatric and psychological testimony in federal courts.”124
For a time after Daubert, courts could avoid facing this possibility by categorizing the basis of such
testimony as “specialized” rather than “scientific” knowledge;125 because Daubert dealt only with “scientific
testimony” (specifically, a claim relating the morning-sickness drug Bendectin to birth defects), it did not
apply to clinical testimony from mental health professionals. But in 1999, the United States Supreme Court
decided Kumho Tire Co. v. Carmichael,126 which made clear that Daubert applies to all three types of
knowledge mentioned in Rule 702 (i.e., scientific, technical, and specialized). As the Court put it, “[t]here is
no clear line” between the three categories, and thus, for all three, “the trial judge must determine whether the
testimony has a ‘reliable basis in the knowledge and experience of [the relevant] discipline.’ ”127 One year
later, in an effort to emphasize this point, Congress amended Rule 702 to say, as noted above, that scientific,
technical or specialized knowledge is admissible only if “(1) the testimony is based on 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 of the case.” That language requires the trial court judge to assess
the factual, methodological, and theoretical basis of any expert testimony, as well as the “fit” of that testimony
with the case at hand, all through the prism of legal “reliability.”128
The impact of Daubert on clinical testimony has been muted in two ways. First, about 20 states still adhere
to the Frye rule or some variant of it129 (though even in these jurisdictions, Daubert’s emphasis on scientific
testing has sometimes been influential130). Second, empirical studies in the decade after Daubert showed that
most courts were hesitant about applying the decision’s rules rigidly when assessing the admissibility of
testimony from mental health professionals.131
In any event, assiduous application of Daubert would not spell the end of behavioral science testimony. For
instance, the type of probabilistic data discussed earlier and information about many clinical diagnoses have
often resulted from traditional, scientific hypothesis testing. Furthermore, interpreting Daubert rigidly as a
bright-line rule barring all clinical testimony not backed up by data would be unwise. Such a stance would
eliminate ways of thinking about human behavior that may aid the trier of fact and that go beyond “common
sense.” Consider, for instance, two statements taken from the sample reports set out in Chapter 19 of this
book:

One characteristic stress response is for individuals to “relive” through their own thoughts and fantasies the original stressful episodes in an
apparent effort to bring about more successful (i.e., psychologically acceptable) solutions. (p. 628)

[I]t is probable that the death of his father contributes to his . . . loss of self-esteem. (p. 657)

Under a strict Daubert approach, experts could make neither of these statements unless they could point to

54
research articles supporting their underlying propositions—for example, that people “relive” their original
stress episodes, that this reliving can be an attempt to heal, or that loss of a father can contribute to loss of
self-esteem. The second and third propositions cannot easily be subjected to scientific testing; the first might
be, although current scientific explanations of the “reexperiencing” characteristic of posttraumatic stress
disorder tend to emphasize biological processes (e.g., how elevated levels of stress response hormones and
neurotransmitters affect memory encoding and retrieval).132 As others have suggested,133 exclusion of such
statements would not comport with the notion that testimony is expert if it “assists the factfinder,” language
that is still found in Rule 702. In short, a requirement that all clinical testimony be “verifiable” is too
demanding. A rigid rule of exclusion for theories about human behavior that have not been subjected to
“scientific testing”—including those that, for ethical or practical reasons, cannot be so tested134—is overbroad.
It is also too narrow. That something is “verifiable” does not mean that testimony based on it will help the
jury. While juror skepticism and cross-examination can often ferret out unreliable clinical testimony,135 jurors
may not be skeptical enough about research-based testimony, and cross-examination does not always expose
unreliable testimony. (Recall also the tensions created by legal use of probabilistic evidence, described in §
1.03(c).) Just as testimony can be good or bad, research and cross-examination can be deficient.
Rather than relying solely on verifiability as the gauge of admissibility, the better answer, we believe, is to
take the nuanced approach to admissibility we developed in § 1.04(b) while trying to improve the performance
of both mental health professionals and lawyers—the task to which this book is devoted. We agree with
Kumho Tire’s emphasis—an emphasis that seems to be ignored in much of the writing about that decision and
Daubert—that the test for expert testimony should be a “flexible” one.136 As the Court stated in Kumho Tire,
“we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in
Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of
evidence.”137 Rather, the overall test, the Court stressed, is whether the expert has “sufficient specialized
knowledge to assist jurors ‘in deciding the particular issues in the case.’ ”138

1.05. WHICH PROFESSIONALS SHOULD BE CONSIDERED EXPERTS?

Assuming that mental health professionals’ opinions should be admissible in at least some instances, which
mental health professionals should courts regard as experts? Traditionally, courts had addressed this question
by examining educational credentials, particularly with respect to discipline. Until relatively recently, courts
regarded physicians as experts in mental health matters, even if they had no psychiatric training. Beginning
with the Jenkins decision in 1962,139 courts have also admitted testimony by clinical psychologists, although
some jurisdictions require psychologists to meet special experiential or training requirements before they can
be acknowledged as experts, and many do not permit psychologists to file civil commitment affidavits.
Psychiatric social workers are often considered experts in juvenile and domestic relations matters and
sometimes at sentencing in criminal cases, but are generally not permitted to testify about a defendant’s
competence to proceed or mental state at the time of the offense.140
These general guidelines have evolved more from the internecine conflicts among the mental health guilds
and the law’s preference for a medical model of mental illness than from any systematic attempt to identify
which mental health discipline can best assist the trier of fact on particular forensic issues. Ideally, the law

55
should use a functional approach to evaluate qualifications, as Rule 702 (which uses a criterion of probable
assistance to the trier of fact) suggests. Moreover, the law should consider not just educational attainment, but
experience in the relevant area and—a point we emphasize throughout this volume—the evaluation
procedures used. Under this approach, the criteria for establishing qualifications would be both broader and
narrower than those courts commonly use.
The prevailing standard as to qualifications should be broader, in that the historic preference for medically
trained experts has little justification in the 21st century. The level of knowledge about forensic practice is not
predictable by discipline, and for many types of forensic evaluations, nonmedical clinicians may have more
relevant knowledge, training, and experience than psychiatrists do.141 Social workers can perform competence
evaluations if they receive proper training and use appropriate evaluation procedures;142 indeed, in this area,
trained nurses and graduate students reach conclusions similar to those of mental health professionals.143
On the other hand, the standard as to qualifications should also be narrower, in that general training as a
mental health professional does not produce expertise sufficient to conduct most of the specialized forensic
evaluations that courts need. On certain specific topics, most medically trained clinicians know more than
most nonmedical professionals; for example, psychiatrists generally know more than other mental health
professionals about the uses and effects of psychotropic medication. However, some psychologists who have
done research or received specialized training in psychopharmacology know far more about such matters than
the average psychiatrist. Conversely, although psychologists usually have more training in research methods
than psychiatrists, psychiatrists who do research will know more about research design than the average
psychologist.144
In short, the law should regard members of the various mental health professions as potentially qualified as
experts, and should focus on the specific spheres of specialized knowledge that an expert may offer. For
example, courts should not let clinicians render opinions about dangerousness if they lack detailed knowledge
about available research on assessing the risk of violence. Mental health professionals should not perform
evaluations of competence to proceed without knowledge of the standard and specific assessment techniques.
Even more generally, clinicians without sensitivity to the special ethical and legal problems raised by forensic
evaluation itself [see Chapter 4] should avoid participating in forensic work. Finally, no clinician who lacks
knowledge of the substantive law that defines the scope of his or her testimony should be considered qualified.
The knowledge level and evaluation procedures appropriate for a given type of testimony should become
apparent as one examines the relevant portions of this book.

1.06. CONCLUSION

In subtitling this chapter “An Uneasy Alliance,” we have called attention both to the conflicts in perspective—
some of them inherent—between lawyers and clinicians and to the points of alliance. Readers will recognize
this ambivalent theme throughout this volume. On the one hand are paradigmatic disciplinary differences in
how each discipline conceptualizes and discerns facts; in addition, mental health professionals often know far
less about forensically relevant matters than lawyers think they do. On the other hand, ever-expanding
knowledge in the behavioral sciences would, if available to legal decisionmakers, result in more informed
judgments on many issues. Our primary admonition to mental health professionals and to lawyers who would

56
consult them is to keep both aspects of this theme in mind. Mental health professionals do the law no service
when they exaggerate the state of knowledge (either their own or of the field as a whole) or ignore problems in
translating the psychological and medical concepts into legal findings. At the same time, lawyers who either
ignore the behavioral sciences or swallow whole the conclusions of mental health professionals fail to exercise
proper diligence in the pursuit of justice. We hope that readers from both perspectives will find this volume
useful in developing an interdisciplinary alliance wherever doing so would improve the quality of legal
decisionmaking. Less globally, we hope that this volume will demystify the arcane aspects both of the courts
and of the mental health system.

BIBLIOGRAPHY

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

DAVID FAIGMAN, EDWARD CHENG, JENNIFER MNOOKIN, ERIN MURPHY, JOSEPH SANDERS & CHRISTOPHER SLOBOGIN, MODERN
SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY ch. 1 (2015).
David Faigman, John Monahan & Christopher Slobogin, Group to Individual (G2i) Inference in Scientific Expert Testimony, UNIVERSITY OF
CHICAGO LAW REVIEW 417 (2014).
Craig Haney, Psychology and Legal Change: The Impact of a Decade, 17 LAW & HUMAN BEHAVIOR 371 (1993).
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
Gary B. Melton, Expert Opinions: “Not for Cosmic Understanding,” in PSYCHOLOGY IN LITIGATION AND LEGISLATION 55 (Bruce D. Sales &
Gary Van den Bos eds., 1994).
John Monahan & Laurens Walker, Social Science Research in Law: A New Paradigm, 43 AMERICAN PSYCHOLOGIST 465 (1988).
Stephen J. Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 SOUTHERN CALIFORNIA LAW REVIEW 527
(1978).
Michael J. Saks & Robert Kidd, Human Information Processing and Adjudication: Trial by Heuristics, 15 LAW & SOCIETY REVIEW 123 (1980–
81).
CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE AND SPECULATION IN ADJUDICATING CULPABILITY
AND DANGEROUSNESS (2007).
Christopher Slobogin, The Right to Voice Reprised, 40 SETON HALL LAW REVIEW 647 (2010).
Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARVARD LAW REVIEW 1329 (1971).

57
CHAPTER 2

An Overview of the Legal System

Sources of Law, the Court System, and the Adjudicative Process

2.01. INTRODUCTION

The forensic specialist works in a world defined largely, if not exclusively, by “the law.” The law regulates
forensic practice through administrative licensing agencies, legal rules governing malpractice and
confidentiality [see § 4.04], and constitutional principles limiting evaluation procedures [see §§ 4.02, 4.03].
Legal officials—judges, attorneys, probation officers, and clerks—initiate forensic referrals, and sheriffs and
other law enforcement officers transport the clients to and from hospital and jail. And, of course, legal
factfinders—judges and juries—are the ultimate arbiters of those cases evaluated by the forensic specialist.
Most importantly, at least from the perspective of this book, the law establishes the guidelines that define
the scope of forensic evaluation. Chapters 6–17 describe this law in detail. But before undertaking an
investigation of these legal rules, one should understand from whence they come, and when and by whom
they are applied. The “law” is not derived from a single, readily accessible, or static source. Nor is it always
implemented by a judge or jury. To function competently, the forensic specialist must have a basic knowledge
of the sources of law, the institutions that shape it, the various points in the legal process at which it can be
applied (especially those points at which “mental health law” is applied), and the types of individuals who
apply it. This chapter is devoted to an acquisition of that basic knowledge. Much of its content will probably
be familiar to the lawyer; it is aimed primarily at the clinician with no legal training.

2.02. SOURCES OF LAW

Problem 2.1

Through the sources discussed in this chapter, find the law that applies in your state on the following
topics: (1) the insanity defense; (2) the extent to which mental illness is a mitigating factor in sentencing
proceedings; (3) the extent to which mental injury is compensable under workers’ compensation law; (4)
the scope of the psychotherapist–patient privilege; (5) eligibility for Social Security; (6) the standard for
competence to proceed; (7) the point at which an arrested person must be taken before a judge; and (8) the
point at which the defendant in a civil case can require a mental examination of the plaintiff. In which
areas is the law federal in origin, and in which is it generated by the state? In which areas is there both
federal law and state law, and when does each apply? In which areas is the source of law constitutional?
Statutory? Regulatory? In which areas is the source of law judicial, either in origin or as a matter of
interpreting constitutional, statutory, or regulatory law?

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Tradition has it that the legislature “makes” the law, the executive branch enforces the law, and the judicial
branch interprets the law. In fact, each branch of government makes law, and each interprets the law.
Moreover, each branch is subject to law, and in the United States system the ultimate source of law is the
United States Constitution. In addition, both the federal and state systems have legislative, executive, and
judicial arms, each of which develops legal principles. Before discussing the various ways in which law is
manufactured, we must say a word about this latter aspect of our form of government.

(a) Federal–State Relations

The United States is a “federation” of states. Under a federal system, each state retains its own government
and its own system of laws, but the states also collectively cede certain powers to the central government. The
United States Constitution is the document that sets out the various powers held by the federal government
on the one hand and the state governments on the other. For instance, it states that the power to regulate
interstate commerce and to provide for the national defense rests exclusively in the hands of the federal
government. On the other hand, the Tenth Amendment to the Constitution reserves to the states those
“powers not delegated to the United States by the Constitution, nor prohibited by it to the States.”
The federal government’s authority under these constitutional provisions was originally narrowly construed.
From the 1930s through the mid-1990s, however, Congress gradually came to enjoy virtually unlimited
discretion to pass laws affecting any activity that involved either the “public welfare” (assuming that federal
funds are part of the statutory package) or “interstate commerce.”1 Although the United States Supreme
Court has since imposed some limits on this Congressional authority,2 the federal government still enjoys
immense legislative power. Thus, under its public welfare authority, the federal government has had a
dramatic impact on the provision of mental health (and general health) services in the United States. For
example, it has set institutional and staffing standards under which Medicare and Medicaid reimbursement is
made available to mental health providers; attempted to stimulate the growth of community mental health
services through the Community Mental Health Centers Act; significantly advanced the habilitation
opportunities of people with developmental disabilities through the Individuals with Disabilities Education
Act; and outlawed discrimination on the basis of disability under the Americans with Disabilities Act.3
The federal laws most likely to raise forensic evaluation issues fall into four categories: (1) federal criminal
law, which includes offenses in which the victim was a federal official, violations of federal civil rights, offenses
involving federal property, and interstate crimes (such as mail fraud, robbery of federally insured banks, and
narcotics violations involving interstate and international transactions); (2) the Social Security and other
entitlement laws, which call for certain types of disability determinations [see § 13.04]; (3) the
aforementioned Individuals with Disabilities Education Act, which requires treatment and habilitation plans
for children with disabilities [see Chapter 17]; and (4) antidiscrimination laws, most prominently the
aforementioned Americans with Disabilities Act, which can require evaluation of a person’s competence to
work under certain conditions [see § 13.02].
Most other substantive areas that might result in forensic evaluations are governed primarily by state law.
For example, when crimes other than those federal offenses noted above are committed, state law is the basis
for criminal prosecution. Not only does state law define the relevant violations in such cases; it also determines

59
the availability and scope of defenses such as the insanity defense and the appropriate punishment (although
federal constitutional law may limit the states’ sentencing options at the margin, as it has in the death penalty
context).4 State law controls most civil disputes as well. For instance, state law usually governs the following
topics covered in this book: civil commitment; guardianship; wills; “torts” (or civil wrongs) such as personal
injury, malpractice, and breach-of-confidentiality claims; workers’ compensation; juvenile delinquency; and
domestic matters such as divorce and custody. State law also governs licensing of mental health professionals.
Thus, in these areas, the evaluator and lawyer must determine the legal rules of the particular state in which a
case is located; with the exception of those relatively few situations in which the federal constitution imposes
limits on state law (discussed below), there is no “national” or uniform law on these subjects.
There are some instances in which federal and state laws overlap. In the criminal law, for instance, conduct
can often lead to both state and federal prosecution. Thus an armed robbery of a federally insured bank in
Missouri could be punishable under Missouri’s armed robbery statute and federal law as well. Because the
state and federal governments are seen as separate “sovereigns,” both may prosecute the same robbery without
fear of violating the double jeopardy clause of the Constitution (which prohibits double punishment for the
same offense). In the noncriminal area, state and federal law may also coexist. Occasionally, however, certain
federal enactments are said to “preempt” the substantive area with which they deal, to the exclusion of state
law. The preemption doctrine is designed to promote a unified approach to “federal” problems. As a result, a
federal law that deals with a preempted issue will supersede all state laws on the subject. For example, the
Department of Health and Human Services regulations governing confidentiality in substance abuse
treatment programs have been found to preempt the area; state statutes in conflict with these regulations must
give way.5 With these points about federal–state relations in mind, we now briefly discuss the various sources
of law at the federal and state levels.

(b) Constitutions

The United States has a “constitutional” form of government, meaning that the United States Constitution is
the ultimate legal authority. All other laws, whether legislative, executive, or judicial in origin, must be
consistent with it, as must be the actions of all governmental officials. In other words, these rules and actions
must be “constitutional.” Thus the Constitution places limits on what state (as well as federal) law can
provide.
Provisions of the United States Constitution that affect forensic practice most significantly are the Fifth,
Sixth, and Fourteenth Amendments. The Fifth Amendment establishes the “privilege against self-
incrimination,” and the Sixth Amendment provides each person accused of crime with the “right to counsel”;
the implications of these concepts for forensic evaluation are discussed in Chapter 4. The Fourteenth
Amendment guarantees that no state shall deprive any citizen of the United States of life, liberty, or property
without “due process of law,” and that no state shall deny an individual “equal protection” of the laws. Relying
on these provisions, principally the due process clause, the courts have issued rulings that have significantly
affected the standards for competence to proceed [see § 6.02(b)] and other competencies in the criminal
process [see §§ 7.03–7.05, 7.08]; the admissibility of clinical testimony in criminal trials on issues other than
insanity [see § 8.03(b)]; the procedures to be followed in capital sentencing proceedings [see § 9.05(b)]; the

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criteria and procedures for civil and criminal commitments [see §§ 10.03, 10.04]; and the scope of the right to
refuse treatment [see § 11.03(b)].
Within the parameters set by the United States Constitution, the federal and state branches of government
may devise legal rules. Officials in a particular state are further limited in their actions by the constitution of
that state, although in practice the provisions of most state constitutions are similar to those in the federal
Constitution.

(c) Statutes and Regulations

As noted earlier, there are important parallels in the organization of the federal government and the various
state governments. Each has a legislative branch (Congress at the federal level; “general assemblies,” “houses
of delegates,” etc., at the state level), an executive branch (the President and the federal departments in the
federal system; the governor and state agencies in the state system), and a judicial branch. This section looks at
the type of law produced by the first two branches.
The laws that legislatures pass are called “statutes” and are “codified,” or collected, into “codes,” which are
organized by subject. In the federal system, for instance, Title 18 is the section of the United States Code that
deals with federal crimes. State codes may also be organized by titles or by chapters, sections, or some other
nomenclature, but each represents the product of the state legislature’s deliberations.
As might well be imagined, legislatures often are unable to treat by statute all situations or circumstances
they want to address. Accordingly, they have increasingly delegated rulemaking authority to government
agencies, which are units of the executive branch. In the federal system, for instance, Congress enacted the
Americans with Disabilities Act prohibiting in broad terms discrimination on the basis of mental disability,
but left to a variety of federal agencies (the Equal Employment Opportunity Commission and the United
States Department of Justice, among others) the task of creating more detailed rules that those subject to the
statute must follow. Similarly, a state legislature might direct its Department of Mental Health to devise
guidelines for the provision of forensic evaluation services. This administrative law, usually promulgated in the
form of “regulations” and also found in “codes,” is increasingly enforced in the first instance through
administrative hearing boards, although decisions of these boards are usually subject to review by the courts.
More is said about administrative proceedings below [see § 2.04(c)].

(d) The Judiciary

Despite the advent of administrative hearing boards, the primary locus for interpreting and applying legal
principles in both the federal and state systems remains the judicial system (indeed, as just noted, most
administrative findings are appealable to a court). These judicial decisions are the results of deliberation in
individual cases that raise an issue concerning a particular legal principle. The holding and reasoning of the
courts in these cases are recorded in Reports or Reporters, which are organized according to the type and level
of court. Thus, for instance, for the federal court system, United States Reports and the Supreme Court
Reporters contain opinions of the United States Supreme Court; the Federal Reporters contain the decisions of
the federal circuit courts of appeals; and the Federal Supplement contains opinions of the federal district courts

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(the next section describes the various levels of courts in detail).
The United States Supreme Court has ruled that the federal courts have constitutional authority to review
all federal enactments to determine their constitutionality, their meaning, and (in the case of regulations)
whether they exceed the delegation made by Congress.6 The federal courts also have the authority to consider
the validity, under the United States Constitution, of any state constitutional, statutory, or regulatory
provision7 (although the state courts are the ultimate arbiter of the meaning of state law).
Of particular significance here is the fact that the review and explication functions of the courts provide
frequent opportunities to “make” law. Thus, for example, federal and state courts construing the
constitutionality of state civil commitment statutes have not only ruled certain state provisions
unconstitutional, but have also indicated the permissible criteria and procedures for commitment (with
significant divergence between different courts on some of these issues, suggesting that the Constitution is a
flexible document) [see Chapter 10]. Such instances of judicial lawmaking are considered inappropriate
“legislating” by some, but they have become routine aspects of judicial decisionmaking.
A second situation in which the courts make law occurs when the written law (e.g., constitutions and
statutes) is ambiguous. In performing their interpretive function, courts will first look at the plain words of
any relevant constitutional provision, statute, or regulation; they will then review the legislative history of a
given law, including statements made by the law’s sponsors or during committee or public hearing sessions.
However, if these sources are not helpful, the courts themselves must devise principles to govern the case
before them.
A third way in which courts make law is when there is no applicable constitutional, statutory, or regulatory
provision. The principles articulated by courts when they create law in this way are collectively known as
“common law” or “judge-made law.” Common law dominates civil law, such as tort and family law. In these
areas, the law has developed through an accretion of judicial holdings that legislatures have often been
reluctant to change or even “codify.” In the criminal area, on the other hand, common-law pronouncements
are rare, because virtually all crimes are now defined by statute. However, some defenses to crimes are not
statutorily defined. For instance, historically there was no federal statute establishing a test of insanity for
federal criminal cases. The federal courts thus adopted their own common-law standards for insanity, which
applied until 1984 when, in the aftermath of John Hinckley’s insanity acquittal for the attempted assassination
of President Reagan, Congress enacted the Federal Insanity Defense Reform Act [see § 8.02(b)]. Moreover,
in both the civil and criminal areas, statutory language may borrow terms from common law (such as “malice
aforethought”) without providing statutory definition. In such cases, the courts rely on the common-law
tradition for interpretive aid.
It is also important to note that the common law—unlike statutory and regulatory law, which is often
created from whole cloth—usually develops according to the principle of stare decisis. This principle, central
to Anglo-Saxon law, holds that present controversies should be decided according to past cases, or
“precedents.” The stare decisis doctrine tends to make judge-made law conservative in nature, but has the
advantage of avoiding abrupt and perhaps ill-reasoned changes in law, while also serving to provide notice to
those who come before the courts of the general principles that will govern resolution of their cases.
In sum, there are several sources of law: the United States Constitution; state constitutions; statutes passed
by legislatures; regulations promulgated by agencies; and interpretive and common law handed down by the

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courts. There are other sources of law as well; “executive orders” issued by the President’s office are one
example. In addition, ordinances passed by city or municipal councils (regarding, e.g., nuisance, loitering, and
other misdemeanors) or Native American law (which “preempts” national law in many situations involving a
particular Native American tribe) may occasionally be relevant to evaluators. However, generally forensic
evaluators will be working with the types of federal and state law described above.

(e) International Law

A final source of law that may be relevant to forensic practitioners and lawyers is international law. In
particular, a number of international conventions could potentially govern treatment of people with mental
disabilities or other individuals subject to psychological evaluations for the courts. These include the
International Covenant on Civil and Political Rights (ICCPR, promulgated by the United Nations in 1976);
the International Covenant on Economic, Social and Cultural Rights (ICESPR, 1976); the Convention on
the Rights of the Child (CRC, 1989); and the Convention on the Rights of Persons with Disabilities (CRPD,
2006). Although a number of countries have ratified these treaties, the United States is only a “signatory” to
the latter three treaties. It has ratified only the ICCPR, meaning that only this convention is potentially
applicable to cases arising in the United States; further, even the ICCPR cannot form the basis for a claim
until Congress passes implementing legislation (which has not yet occurred).8
Nonetheless, some knowledge of these conventions is useful even for mental health professionals who
practice in the United States, because courts sometimes make reference to them and have on occasion treated
them like law.9 Several provisions of these conventions are particularly relevant to this book. Most generally,
the ICCPR and the ICDSPR establish a right to self-determination for every citizen; furthermore, they
prohibit discrimination based on race, color, sex, and a number of other traits, including “other status,” which
has been interpreted to include disability [see Chapter 13 on antidiscrimination laws].10 The CRPD and the
CRC are more specific, with the CRPD explicitly establishing mental (as well as physical) disability as a
protected status, and the CRC, of course, extending special protections to children.
On its face, the CRPD is quite radical. Article 12 of the CRPD states, inter alia, that nations “shall
recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of
life.”11 The commentary to this article explains that this provision prohibits the equation of incapacity with
“mental, intellectual or sensory impairment” as well as the assignment of a guardian based on that
determination.12 It also states that the article abolishes defenses “based on the negation of criminal
responsibility because of the existence of a mental or intellectual disability.”13 So construed, article 12 could
have a dramatic impact on the law of guardianship [see § 11.02], other civil competencies [see Chapter 11],
the criminal competencies [see Chapters 6 and 7], and the insanity defense and other mental state defenses
[see Chapter 8]. Article 14 of the CRPD states that “the existence of a disability shall in no case justify a
deprivation of liberty.”14 This language, according to the commentary, is meant to prohibit detention that “is
grounded in the combination between mental or intellectual disability and other elements such as
dangerousness or care and treatment,” a prohibition that could have serious repercussions on the substance of
criminal or civil commitment law [see § 9.04(b) and Chapter 10].15
Likewise, the CRC could have significant implications for juvenile delinquency and custody

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determinations [see Chapters 14, 15, and 16]. It bars discrimination against children, and further states that
“[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.”16 It also states that countries “shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting the child . . . in accordance with the
age and maturity of the child.”17 Relevant to benefits and entitlements for children [see § 13.04(d) and
Chapter 17], countries must “recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation of health,”18 “the right to
benefit from social security, including social insurance,”19 and “the right of the child to education . . . on the
basis of equal opportunity,” with primary education “available free to all” and secondary education “available
and accessible to every child.”20
Again, none of these provisions has a direct impact on cases adjudicated in the United States. But they may
have indirect influence. Furthermore, they provide aspirational standards toward which policymakers,
practitioners, and courts might look for guidance.

2.03. THE COURT SYSTEM

Just as the federal and state governments have parallel branches of government, they have roughly parallel
judicial structures. Both the federal and state judiciaries have two types of courts: “trial courts” and “appellate
courts.” The primary functions of the trial court are to ascertain the facts of the case before it, and then to
apply “the law” to those facts. The facts are gleaned through an “adversarial” process, which, as described in §
1.03(b), envisions an impartial “trier of fact” (either a judge or a jury) considering evidence chosen by the
parties to the dispute. (An “adversarial” process can be distinguished from an “inquisitorial” process, found in
some European countries, which combines the investigative and decisionmaking roles.)21 In most instances,
the trial court’s decision may be appealed to an appellate court, which determines whether the trial court
applied the correct legal principles. Usually no “trial” takes place at the appellate level;22 rather, the court bases
its decision on the record developed by the trial court, the briefs (written memoranda of law) submitted by
opposing counsel, and occasionally oral argument by counsel.
Beyond this similarity in basic structure, the federal and state judicial systems tend to diverge.

(a) The Federal Court System

Federal judges are nominated by the President of the United States and confirmed by the United States
Senate; they are appointed for life. In the federal system, the “district court” serves as the trial court. Each
state is divided into one or more districts over which a district court judge presides. The district courts have
jurisdiction over many types of cases, but most relevant to this book is their authority over cases arising under
federal law. Thus any claim that a federal or state statute or practice is unconstitutional under the United
States Constitution may be brought in federal court. So too may any claim for an entitlement under federal
statutes and regulations (e.g., for welfare benefits or discrimination claims under the Americans with
Disabilities Act, although both require administrative proceedings first). Defendants charged with federal

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offenses are also tried in federal court.
There are two levels of appellate courts in the federal system: the circuit courts of appeals and the United
States Supreme Court. The country is divided into 12 circuits, each including several states (except the
District of Columbia Circuit); the judges on the circuit courts of appeals hear appeals from the district courts
within their circuit. While each circuit has a number of judges appointed to it, cases typically are heard by
panels of three judges, with a circuit on rare occasions hearing a case en banc—that is, with all judges from the
circuit sitting as a panel. A decision by a particular court of appeals determines the law only for that particular
circuit.
The United States Supreme Court, consisting of nine Justices, is the highest court in the country. Its
decisions regarding the United States Constitution and federal and state enactments apply nationwide and are
final—that is, unappealable. Its jurisdiction is primarily appellate, although it has original trial jurisdiction
over some types of cases, such as controversies between a state and the United States and between a state and
citizens of another state.23 The Court is required to take certain types of cases on appeal, including cases in
which a district court declares a federal statute unconstitutional and in which a circuit court declares a state
statute unconstitutional.24 For the most part, however, the Court may exercise its discretion in deciding which
cases to consider; otherwise, it would be overwhelmed. The primary mechanism for petitioning the Court to
hear a case is called a “writ of certiorari.” The Court denies or grants certiorari on a particular case depending
on its legal and systemic significance, with four votes needed to “grant cert.” For instance, the Court often
grants cert in cases that provide an opportunity to resolve a conflict between courts of appeal, or those in
which a state supreme court has interpreted a federal constitutional or statutory provision in a questionable
manner. Many significant mental health law cases were certiorari cases (e.g., Addington v. Texas,25
establishing the standard of proof in civil commitment cases; Washington v. Harper,26 setting forth the
Supreme Court’s views on the right to refuse psychoactive medication; and Atkins v. Virginia,27 exempting
people with intellectual disabilities from the death penalty).

(b) State Judicial Systems

In many states, judges are elected, not appointed. Also, in contrast to federal court, most states have at least
two levels of “general-jurisdiction trial courts”—one that tries civil matters involving small sums of money and
minor crimes, and another that handles major civil and criminal trials. With a few exceptions (most
importantly, federal criminal cases), a state court with general jurisdiction may hear cases involving federal as
well as state law.
Moreover, most states have “special-jurisdiction courts” for designated subject areas, such as civil
commitment, domestic relations, juvenile matters, and probate. Many of the special-jurisdiction courts and
the lower-level general-jurisdiction courts are relatively informal. The proceedings are not transcribed as a
matter of routine; the rules of evidence may not apply; and witnesses may not be required to testify under
oath. Litigation over the level of formality that should adhere in these types of courts has achieved mixed
results [see, e.g., §§ 10.02(c), 10.04(a), 14.02(d)]. A relatively new type of special-jurisdiction court, which we
call the “therapeutic court,” is discussed in more detail below in § 2.04(e).
Like the federal system, most states also have two appellate levels—an intermediate appeals court and a

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supreme court—although some states have only the latter. The state supreme court is the ultimate authority
on the interpretation of state law; even the United States Supreme Court must respect the state court’s
decision with respect to its own law, unless it is in conflict with the United States Constitution or a federal
enactment that has preempted the area. Figure 2.1 illustrates in simplified form the relationship between the
federal court system and the typical state court system.

FIGURE 2.1. The relationship between federal and state courts.

2.04. THE ADJUDICATIVE PROCESS

There are four major types of judicial proceedings: criminal, civil, administrative, and those characterized in
this chapter as “quasi-criminal.” In addition, many jurisdictions have established special “therapeutic courts”
that are considered part of the criminal process, but are really quasi-criminal in nature. Each process has
different objectives, uses different rules of evidence and procedure, and involves different types of personnel.
The forensic clinician should be aware of the principal differences among these proceedings, in order to
understand the context in which clinical input is sought.

(a) The Criminal Process

A criminal prosecution occurs when the government (federal or state) charges an individual with the
commission of an act that is forbidden by statute and punishable either by imprisonment or by a fine.
Conviction of and punishment for a criminal offense have traditionally been viewed as the most severe actions
society can take against one of its members. Accordingly, the criminal process is the most highly formalized of
any adjudicatory proceeding. The prosecution must prove each element of the crime charged “beyond a
reasonable doubt” (a level of certainty that can reasonably be quantified at above 90%).28 The defendant is
afforded the right to counsel, not only at trial but at any “critical” stage before trial, including postindictment

66
lineup identifications and custodial interrogations.29 To prevent “star chamber proceedings,” the defendant is
entitled to a public jury trial, the right to compel witnesses to testify in his or her behalf, and the right to
cross-examine the prosecution’s witnesses.30
There are two generic types of offenses: “misdemeanors” and “felonies.” A misdemeanor is usually defined
as an offense punishable by imprisonment up to one year, a fine, or both. The place of imprisonment, if it
occurs, is usually the local jail rather than a state prison. Felons, on the other hand, are incarcerated in the
prison system, for terms ranging from a few months up to life—depending, of course, upon the crime.
Roughly 30 states and the federal government also authorize the death penalty [see § 9.05].

(1) The Stages of a Criminal Prosecution

A criminal prosecution is a highly structured event, established by statute, court rule, or long tradition.
Although the details vary from jurisdiction to jurisdiction, the following typology is representative.

1. Detention. The state has authority to detain an individual on a criminal charge if there is “probable
cause” (a degree of certainty perhaps roughly equivalent to 40–50%) to believe that the individual has
committed the crime charged. Information constituting probable cause can come from direct police
observation, reports from informants, or complaints by ordinary citizens. Once sufficient grounds exist for
believing that there is probable cause to arrest an individual, the police may seek an arrest warrant from a
judge or magistrate (a judicial officer who presides over pretrial hearings). However, if there is no time to seek
a warrant, the arrest is made in public, or some other extenuating circumstance exists, the police may make a
warrantless arrest. In rare cases (e.g., those involving political corruption), an arrest may be made pursuant to a
grand jury indictment or based on an “information” from the prosecutor, both indicating that, after a formal
investigation, grounds exist for detaining the named individual. As we note later, however, the indictment or
information usually follows rather than precedes arrest.
2. Booking. Immediately after arrest the defendant is taken to the station house, where appropriate
paperwork is completed, and (if necessary) fingerprinting and photographing take place.
3. The initial hearing. The United States Supreme Court has held that as soon as possible after arrest (i.e.,
within 48 hours), the government must afford the accused a hearing to determine whether there is probable
cause to detain him or her, unless the arrest is based on a warrant or an indictment (because in the latter
instances a judicial determination of probable cause has already been made).31 Those charged with
misdemeanors may be tried at this time. Those charged with felonies will usually have counsel appointed if
they cannot afford one, and will either have their bail set or be released on their own recognizance. In many
states, as well as in federal prosecutions, the government has the authority to “preventively detain” an arrested
individual who is proven likely to commit a crime if released prior to trial.32
4. Defensive motions and discovery. Once the defendant has obtained counsel, several events may occur,
depending on the nature of the case and the competence of counsel. First, the defense counsel may try to
“discover” the prosecution’s case, which he or she can do by making a motion to the court asking for
“exculpatory information” in the prosecution’s files,33 as well as other information that the prosecution plans
to use at trial (e.g., confessions by the defendant, statements of prosecution witnesses). In an increasing

67
number of states, the prosecution may obtain the same sort of information whether or not the defense makes a
discovery motion (although it may not obtain incriminating statements from the defendant, for Fifth
Amendment reasons). Most other states follow a “reciprocity” principle with respect to discovery, meaning
that prosecution discovery is contingent upon a discovery request from the defense; in practice, given the
limited resources of the defense and the vast resources of the state, such a request usually occurs. Thus, in
virtually all states, the discovery rules permit prosecution access to the results of the defendant’s clinical
evaluations, either “independently” or once the defendant makes a discovery motion. As § 4.02(b) indicates,
however, in some circumstances operation of these rules may be unconstitutional.
The defense attorney may also make a “motion to suppress” (or render inadmissible) certain evidence. For
instance, the attorney may argue that evidence was illegally seized from the defendant’s house, or that a
confession the defendant made to the police was invalidly obtained [see §§ 7.02, 7.03]; these issues are
addressed at a “suppression hearing.”
5. The prima facie showing. At some point following the initial hearing, it is incumbent upon the
prosecution to “make its case” formally in front of a judicial body—either a judge, a magistrate, or a grand
jury. This stage is designed to ensure that the prosecutor has a “prima facie case” (i.e., a case good on its
“face,” with sufficient evidence to justify going forward with the criminal prosecution). To meet this burden,
the prosecutor will often present the results of lineup identifications, police interrogations, searches of the
defendant’s home or the crime scene, and any information discovered from the defense. In many states, this
presentation is made to a magistrate or judge at a preliminary hearing, at which the defendant and counsel are
present. In addition, most states east of the Mississippi River,34 as well as the federal courts, require an
indictment by a grand jury; here the public and the defendant are barred from the proceedings. In the latter
states, if the indictment is obtained before a preliminary hearing occurs, the hearing does not take place.
6. The arraignment. Although the term “arraignment” is sometimes used to refer to the initial hearing (step
3), technically it is the stage at which the accused pleads, which may not occur until well after that hearing
(especially for felonies). In most states, there are four possible pleas: “guilty,” “not guilty,” “nolo contendere”
(by which the defendant indicates that he or she will not contest the state’s charges), and “not guilty by reason
of insanity.” In about 12 states, it is also possible to plead “guilty but mentally ill” [see § 8.03(f)]. Most
jurisdictions permit a defendant to plead not guilty and not guilty by reason of insanity simultaneously (on the
theory that the defendant should not be barred from asserting other defenses—e.g., self-defense—just because
he or she claims insanity). If one or both of the latter pleas are entered, the case is usually set for trial. If the
plea is guilty, the judge must ascertain whether it was voluntarily, intelligently, and knowingly made;35 if so,
the defendant is sentenced, either at arraignment (in misdemeanor cases) or at a later proceeding (step 8).
Most guilty pleas are the result of “plea bargaining,” which involves an agreement between the defendant
(through his or her attorney) and the prosecutor to the effect that if the defendant pleads guilty to a specified
charge, the prosecutor will recommend to the judge that the plea be accepted. To encourage such pleas, the
prosecutor will often reduce the charges, drop one or more charges, or pledge to recommend a lenient
sentence to the judge. Because approximately 95% of all criminal cases are disposed of through a bargained
plea,36 this relatively hidden procedure is an extremely significant aspect of the criminal process.
7. Trial. If the defendant chooses to go to trial and does not waive his or her right to a jury, a jury is
selected through “voir dire.” This process permits each side to exclude individuals from the jury, using a

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limited number of “peremptory challenges” (which require no stated reason) and an unlimited number of “for-
cause challenges” (which must be justified). The federal courts and most states require 12-member juries in
felony cases, although 6-member juries are becoming more common. Once a jury is properly impaneled, the
trial begins. After opening arguments, the state presents its evidence, through submission of exhibits and
direct examination of witnesses. The defendant may challenge this evidence through cross-examination and,
in the court’s discretion, rebuttal witnesses. The defendant then puts on his or her evidence, if any, which the
state may contest. If insanity is an issue, some states permit a “bifurcated trial,” with the insanity evidence
introduced at the second stage [see § 4.02(b)]. After closing arguments, the judge provides the jury, if there is
one, with instructions on the law it is to apply to the facts of the case. In a case in which insanity is raised as a
defense, for instance, the jury will be told the jurisdiction’s test for insanity. After instructions are given, the
jury retires until it can produce a verdict, which usually must be unanimous (although the Supreme Court has
held that 11–1, 10–2, and 9–3 decisions are not unconstitutional).37 If the jury is “hung” (i.e., cannot reach a
proper verdict), a new trial may be held.
8. Disposition: Sentencing and commitment. A few states permit the jury to sentence the defendant once it
finds the defendant guilty. However, most states leave the sentencing decision in noncapital cases up to the
judge, who will often request a “presentence report” from the probation officer and will occasionally hold a
sentencing hearing. Except in death penalty cases, the latter hearing is usually much more informal than a trial
[see § 9.03(b)], although again both sides are given the opportunity to present evidence. The sentencing
authority may impose any sentence within the statutory range and may also impose probation, with
conditions. An individual acquitted by reason of insanity, on the other hand, is usually required to undergo a
short commitment for evaluation purposes and is then subjected to a hearing that results in prolonged
commitment if he or she is found to be mentally disordered and dangerous [see § 10.10(c)].
9. Appeal. After conviction and sentencing, a defendant has the option of appealing the trial court’s
decision. An appeal must be taken within a certain period of time and must be based on factual issues (e.g.,
insufficient evidence to convict) or legal ones (e.g., the defendant’s confession was obtained in violation of the
Fifth Amendment) that have been objected to before or during trial. The prosecution may not appeal an
acquittal (under the double jeopardy clause of the United States Constitution), although in many states and in
federal cases it may appeal a sentence.
10. Collateral attack. Once appeal routes are exhausted, it is still possible for both the offender and the
insanity acquittee to attack their confinement “collaterally” through a writ of “habeas corpus” (or, in some
states, a writ of “coram nobis”). The gist of these writs is an allegation that the state is illegally detaining the
person. Once the state habeas process is exhausted, the state criminal defendant might also be able to raise
claims on a federal writ of habeas corpus. Although the scope of federal habeas for state prisoners has been
narrowed in recent years, it does enable the prisoner or acquittee to make certain claims regarding the fairness
and adequacy of the trial or plea bargain that resulted in incarceration. Several mental health law cases (in
particular, those challenging the death penalty) have reached the United States Supreme Court through this
procedural mechanism, including Barefoot v. Estelle,38 affirming the use of psychiatric prediction testimony in
capital sentencing proceedings, and Ford v. Wainwright,39 prohibiting execution of incompetent persons.
11. Dispositional review. Most offenders and insanity acquittees are not released via appeal or collateral
attack. Instead, most are released through state-initiated review of their status. Through the 1970s, most

69
prisoners were released from incarceration after a parole hearing. However, many states have abolished parole
in favor of “fixed” sentences [see § 9.03(a)(4)], and from 1977 through 1997 the percentage of prisoners who
appeared before a parole board declined from 72 to 28%.40 In those states that still rely on parole, convicted
offenders who have served a minimum period of time and are otherwise eligible for parole41 are entitled to
have a parole board determine their eligibility for early release, based on each individual’s criminal record,
behavior in prison, and perceived tendency to recidivate. Similarly, in most states insanity acquittees are
entitled to periodic reviews of their mental state and dangerousness, either by a probate court or by an
administrative board.
12. Postsentence treatment hearings. Many states transfer prisoners needing psychiatric care to secure
mental hospitals until they no longer need inpatient treatment; others seek such treatment for prisoners under
“guilty but mentally ill” statutes. The United States Supreme Court has required that before an involuntary
transfer from prison to a hospital takes place, some type of hearing be held.42

(2) Clinical Input: Issues, Points of Entry, and Contacts

During the process described above, myriad issues arise that may call for clinical expertise. Due process
requires that before an accused pleads guilty or undergoes trial, he or she must be competent to do so. Thus
the clinician may be asked to evaluate the accused’s “competence to plead guilty” [see § 7.04] at virtually any
point prior to arraignment; an assessment of the defendant’s “competence to proceed” [see Chapter 6] may be
called for at any time up through the conclusion of trial. Occasionally the evaluator may even be asked to
address these issues retrospectively, if, for instance, the competence issues are raised via a writ of habeas
corpus. If the defendant confesses, the clinician may be requested to determine whether at the time of the
incriminating statement the defendant was “competent to confess” [see § 7.03], and may be asked to explain
his or her findings at a suppression hearing. If the defendant wants to proceed pro se—that is, to represent
him- or herself at either arraignment or trial, or both—the clinician may be asked to evaluate the defendant’s
“competence to waive the right to counsel” [see § 7.05]. A final competence issue that the clinician may
address is whether the defendant (or, more likely, one of the trial witnesses) is “competent to testify” [see §
7.07]. All these evaluations are likely to be ordered at some time between the initial hearing and the trial.
Both the defense and the prosecution may also want an evaluation of the defendant’s “mental state at the
time of the offense” [see Chapter 8]. Most states require the defendant to give the state formal notice of an
intent to raise an insanity defense at least ten days before trial, so the defense will usually ask the clinician to
evaluate the defendant’s sanity well before this time. The prosecution, on the other hand, arguably does not
need its own evaluation or any information on this issue until after the defendant raises it [see § 4.02(b)].
Nonetheless, in practice, the prosecution often requests an evaluation before notice occurs. Occasionally the
defense may actually encourage such action; the available data indicate that a large percentage of insanity
acquittals are the result of quasi-plea bargaining,43 which may occur well before notice by the defendant is
required.
If the defendant is convicted, either the state or the defendant may want a presentence evaluation of the
defendant focusing on his or her “dangerousness,” “treatability,” mental state at the time of the offense (or
“culpability”), or other issues [see Chapter 9]. Frequently, such evaluations take place before the determination

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of guilt or innocence—either because (as is the case with capital sentencing procedures in most states) the
sentencing hearing immediately follows trial, or because both sides want to reach a bargain and the
defendant’s treatability is an issue that will influence the ultimate plea and recommended sentence. Another
issue that may require clinical expertise at or after sentencing is competence to be sentenced or executed [see §
7.08(b)].
Finally, in the context of parole board decisionmaking and release hearings for insanity acquittees, the
clinician may be asked to evaluate the defendant’s mental state and dangerousness. In the context of prison
transfers, treatability may also be an issue [see § 10.10(b)(1)].
The mental health professional should also be aware of the different actors involved in the criminal process.
The prosecutor is perhaps the most powerful, at least during the pretrial stages, as he or she is the official
responsible for deciding what charges to bring against the defendant. Indeed, the prosecutor has the authority
to dismiss the charges entirely, even if the victim wants them pressed. Moreover, the prosecutor’s discretion
during the plea-bargaining process to reduce charges and fashion a disposition is enormous.
Obviously, the defense attorney is also of extreme importance. Without this individual, the process would
probably not be adversarial in any real sense. Because most defendants are indigent, few defense attorneys are
retained. Most are either court-appointed attorneys or public defenders. Both types of defense attorneys are
paid by the state—the former on a per-case basis, the latter by salary. Increasingly, states are moving toward
public defender offices as the method for providing legal services to indigent defendants; whereas public
defenders may represent only criminal defendants, court-appointed attorneys are often marginally involved in
criminal practice and may resent having to take time out from the rest of their caseload. At the same time,
attorneys working for public defender offices are often young and inexperienced, overworked, and prone to
plea-bargain to keep their caseload manageable.44
Other actors in the system have already been briefly described. Judges make rulings of law and instruct the
jury at trial as to the proper law to apply. Magistrates issue warrants and preside over preliminary hearings.
Probation officers prepare presentence reports and supervise offenders put on probation. Court clerks issue the
judge’s orders and organize the court docket. The sheriff and jail personnel provide security and
transportation. All these individuals are important to the evaluator because of their control over various
aspects of the criminal process. Moreover, each can provide useful information about the person being
evaluated. Serious forensic practitioners need to establish a credible relationship with each of them if
evaluations are to reflect comprehensive assessments of clients, and if reports and testimony are to receive the
full attention they deserve.
An evaluator should also be aware of the types of information that may be available from various stages of
the criminal process. The police report, filed soon after detention, can be an invaluable source of data about
the mental state of an accused person. The initial hearing is usually not transcribed, and in any event will
usually not produce anything probative of mental state. But the documents supporting evaluation, discovery,
or suppression motions, made at that stage or soon thereafter, can be very useful to the evaluator, as can the
transcripts of suppression hearings and any information obtained through the discovery process. Preliminary
hearings are also virtually always transcribed and can be made available to evaluators (grand jury testimony, on
the other hand, is usually kept sealed until shortly before or during trial). Of course, if a presentence report
exists, it can be very helpful in addressing dispositional and perhaps other issues.

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 (b) Civil Proceedings

Unlike a criminal adjudication, a truly civil proceeding involves a dispute between private parties. The
government merely provides the forum for resolving the dispute. A simple civil suit, for example, might
involve a claim by one party (the “plaintiff”) that the other party (the “defendant”) negligently operated his or
her automobile and caused physical and mental injury to the plaintiff. Civil suits might also seek damages for
breach of confidentiality or malpractice by a mental health professional. A different type of civil suit involves
custody over children during a divorce proceeding;45 here the goal is not monetary damages but possession of
the children. The common thread among these cases is that all involve disputes between citizens, rather than
between a citizen and the state.
Because a civil proceeding of this type does not result in a loss of liberty and is viewed as a conflict between
parties with roughly equivalent resources, the degree of certainty required to reach a decision is much lower
than in the criminal process. Although the plaintiff has the burden of proof, he or she can meet it merely by a
“preponderance of the evidence,” meaning a showing that the plaintiff’s version of the facts is more likely than
the defendant’s.
Nor are the stages of civil adjudication as highly ritualized as those in the criminal context. Under the
Federal Rules of Civil Procedure, which many states have also adopted in whole or in part, a civil suit is
commenced by filing a “complaint,” to which the defendant responds with an “answer.” No further steps are
required until trial.
Typically, of course, both sides make numerous “pretrial motions.” The most frequent are those designed
to discover the other side’s case. The scope of discovery has expanded in the past several decades in order to
avoid surprises at trial. A number of mechanisms are available to facilitate this process, including “depositions”
(during which witnesses are questioned and their testimony transcribed); “interrogatories” (sets of written
questions that are answered in writing); requests to produce documents and other tangible evidence; mental
and physical examinations; and requests to admit facts relevant to the case.
Of particular importance here are motions to obtain a mental examination and motions to discover the
content and basis of opinions held by a party’s experts. Under the rules applicable in federal court, a party can
obtain a mental examination only of another party to the case or a person in that party’s “custody or control”;
for privacy reasons, examinations of nonparties cannot usually be obtained. Moreover, before a mental
examination of a party is permitted, the court must be convinced that his or her mental condition is “in
controversy” and that there is “good cause” for the evaluation.46 In contrast, discovery of expert opinion is
facilitated by the rules. A party that will use an expert as a witness must automatically give the other side a
report containing the opinions, data, and reasoning of the expert; in addition, that expert may be deposed at
any time.47 The identities of experts who are consulted but will not testify must also be disclosed;48 however,
these experts may not be deposed or sent interrogatories unless exceptional circumstances make the
information they possess difficult to obtain through other means.49
As indicated above, experts are often deposed during the discovery process. A deposition involves
questioning of the witness by the deposing party’s attorney, with the witness’s attorney present. The transcript
of this deposition may be used at trial to impeach the expert’s testimony at trial, or as a substitute for it if the
expert is unavailable. Although objections to questions asked during deposition may be made, they are usually

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merely noted for the record; experts must generally answer all questions put to them, even if the answers will
not later be admissible at trial. The most pertinent exceptions to this rule occur when the questions ask for
completely irrelevant information (e.g., the results of a short therapy session 20 years earlier) and when they
ask for privileged information or information that the expert’s attorney can convince the court is entitled to
protection for confidentiality reasons.50 As § 4.04 makes clear, in most jurisdictions neither objection affords
much protection.
Frequently, once discovery is complete, the parties settle rather than go to trial. Although “settlement” is
analogous to plea bargaining, the terms of the settlement agreement need not be approved by, or even
divulged to, the judge. The settlement rate is almost as high as the guilty plea rate in criminal trials.
If settlement is not reached, voir dire of the jury “venire” (i.e., the group of prospective jurors) is conducted,
and the trial begins. The civil adjudication, like the criminal trial, is adversarial in nature. The plaintiff’s
evidence is presented first, and his or her witnesses are then subjected to cross-examination; the defendant’s
case follows. Again illustrating the differing stakes involved, however, in many states the civil jury need only
produce a majority verdict for one party to prevail (in the federal courts, a unanimous verdict is required unless
the parties stipulate otherwise before trial51).
The psychological issues that arise in civil cases will depend, of course, on the substantive nature of the
case. In the typical personal injury (or tort) case, the plaintiff may claim that the defendant’s negligence caused
not only physical harm but mental pain and suffering, and may request an evaluation gauging the nature and
extent of this pain and suffering [see Chapter 12]. In custody disputes, the issues are whether one or either of
the parents is fit to care for the child and, in a larger sense, what is in the best interests of the child [see
Chapters 15 and 16]. As in the criminal context, several competence issues may arise in a civil adjudication, all
discussed in Chapter 11. In probate cases, clinicians may be asked to evaluate whether the deceased person
was competent to make a will at the time it was executed; in guardianship cases, they may have to assess
whether the proposed ward was competent to make personal or business decisions; and in contract cases, a
question may arise as to whether a party to the agreement was competent to enter into a contractual
relationship. As in criminal cases, there may also be a need to determine whether a particular witness is
competent to testify [see § 7.07].

(c) Administrative Hearings

Virtually all administrative hearings in front of executive adjudicative bodies are also deemed “civil” in nature.
However, in these cases the government is a party and is often acting to confer property on or take property
away from a citizen (e.g., licensing and Social Security determinations). Therefore, the standard of proof used
in these proceedings is often the “clear and convincing” standard, which falls between the “beyond a
reasonable doubt” rule used in criminal cases and the “preponderance of the evidence” standard used in the
typical civil case. In contrast, rules of evidence are often relaxed at administrative proceedings because of the
absence of a jury [see, e.g., §§ 12.02(a), 13.02(d)].
Probably the most common psychological issue in administrative adjudication is the level of mental
disability suffered by an applicant for government benefits in the form of Social Security [see § 13.04] or
workers’ compensation [see § 12.02]. In jurisdictions where the state legislature has conferred authority on

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administrative bodies to hear mental health issues traditionally heard in the courts, such as the right to refuse
treatment [see § 11.03(b)],52 greater clinical participation in administrative hearings can be expected.

(d) Quasi-Criminal Proceedings: Civil Commitment and Juvenile Delinquency

There exist entirely discrete types of cases that have traditionally been labeled “civil” in nature, but, because
they potentially involve a significant deprivation of liberty, are best characterized as “quasi-criminal.” The two
types of quasi-criminal cases discussed in this book are “civil commitment” and “juvenile delinquency” cases.
Civil commitment is the process by which the state institutionalizes those found to be mentally disordered
and either dangerous or in need of care. Juvenile court provides a mechanism separate from the adult criminal
justice system for trying allegedly antisocial juveniles. Traditionally, both mechanisms were seen as means of
providing state resources to relatively helpless groups within society; their objective was not punishment, but
rehabilitation. But since the 1960s, the courts have recognized that both systems involve a “deprivation of
liberty,” with some concluding that they often do little to help and may actually harm those involved.
As a result of this shift in perspective, significant changes have occurred in both areas, described in detail in
Chapters 10 (on civil commitment) and 14 (on juvenile delinquency). For present purposes, only a few recent
developments need be noted. In the civil commitment context, the United States Supreme Court has held
unconstitutional state statutes that permit commitment by the civil “preponderance of the evidence” standard;
instead, it has required the higher “clear and convincing evidence” test to be met.53 Lower federal courts and
some state courts have also held that formal evidentiary rules and the rights to subpoena and cross-examine
witnesses apply in commitment hearings.54 In the juvenile context, the United States Supreme Court has, in
effect, equated juvenile delinquency proceedings with adult criminal trials. With a few exceptions (e.g., the
right to jury trial),55 every right afforded adult criminal defendants must also be afforded juveniles charged
with committing a crime, including the right to require proof beyond a reasonable doubt that the crime was
committed.56 It would be naive to conclude that the “therapeutic ideal” no longer exerts a strong influence on
the civil commitment and delinquency adjudicatory systems; in practice, the new procedural requirements
have often been disregarded, and in some states the trend is explicitly antilegalistic. Nonetheless, with a few
exceptions, those subjected to these types of proceedings are theoretically entitled to the same type of
adversarial proceeding that adult criminal defendants are.
As described in detail in Chapter 10, the issues that will confront the clinician performing civil
commitment evaluations focus on the need to hospitalize the individual in question (or, in those states that
have embraced outpatient civil commitment, whether the person should be ordered into community care).
State statutes vary, but usually require a finding that the individual is mentally ill plus either dangerous to
others, dangerous to him- or herself, or in need of care or treatment before involuntary commitment may
occur. The clinician may also be asked to evaluate the individual’s competence to make treatment decisions
[see § 11.03].
Juvenile delinquency proceedings, as Chapter 14 makes clear, may require a number of different decisions
that can be informed through clinical expertise. Just as in the criminal process, issues of competence to
proceed and to waive certain rights may arise, as well as the question of whether the juvenile was insane at the
time of the offense. On the other hand, unique to the juvenile system is the determination of whether certain

74
children (traditionally between 14 and 18 years of age, but today often younger because of state legislation that
has made the juvenile justice system more punitive) are “amenable to treatment” within the juvenile system; if
not, there may be a transfer of the juvenile to adult court jurisdiction, a procedure also known as “waiver” of
juvenile court jurisdiction. Finally, a child who remains in the juvenile court system and is convicted will as a
matter of course be evaluated, often by a mental health professional, to determine the best disposition. This
presentence evaluation is much more wide-ranging than the analogous adult assessment; most states provide
several types of rehabilitative services for children, all of which must be considered by the evaluator.
It should be remembered that both civil commitment and juvenile courts are often special-jurisdiction
courts, with separate personnel and facilities. Many states do not appropriate funds for a prosecutor in either
civil commitment or juvenile cases. In the former context, often the committing judge or the examining
clinician fills that role; in the latter area, many states confer prosecutorial discretion on the juvenile probation
officer.

(e) Therapeutic Courts

Juvenile and civil commitment courts can be seen as the forerunners of various other specialized “therapeutic
courts,” such as “drug courts” and “mental health courts,” that have developed since the early 1990s.
Therapeutic courts have also been characterized as “problem-solving courts.” One commentator has suggested
that these courts share five common characteristics: (1) The court hears a range of nonlegal issues, which
might include testimony about family problems or treatment refusals; (2) the court attempts to resolve these
nonlegal issues, as well as legal matters; (3) the court attempts to effect outcomes that go beyond simple
application of the law—for example, it might consider dispositions designed to help the defendant achieve
sobriety or gain access to treatment; (4) the court attempts to create new collaborative relationships between
the legal system and nonlegal systems, such as treatment or social welfare programs; and (5) judges and
attorneys in such courts play nontraditional roles, emphasizing a collaborative rather than an adversarial
stance.57
Drug courts and mental health courts, the most conspicuous examples of such courts, emerged in response
to the influx of individuals with psychological disorders into the criminal justice system. In 1997, at about the
time therapeutic courts began their ascent, the United States Department of Justice estimated that of the
approximately 10 million adults booked into United States jails in that year, approximately 700,000 had a
serious mental disorder, and that 75% of these people also had a substance abuse disorder.58 Arrests of such
individuals have continued to rise, and the prevalence of mental illness among correctional populations is
estimated to be three to four times that of the general population.59
The first drug court was established in Dade County, Florida, in 1989; by 2015, there were close to 3,000
in operation.60 A typical drug court has a number of components. These include judicial monitoring of
community-based treatment; a particular judge designated to hear the drug court docket; the early
identification and referral to treatment of eligible defendants after arrest; the use of status hearings by the
court to monitor treatment adherence and progress; the use of awards and graduated sanctions, including jail,
as incentives; drug testing; specific treatment requirements; and the dismissal of the case or a reduced sentence
on completion of the program.61

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 The first mental health court was established in Fort Lauderdale, Florida, in 1997; as of 2013, there were
approximately 300 such courts.62 Like drug courts, mental health courts aim to divert offenders into
treatment. But while drug courts follow a relatively uniform model (in large part because of significant federal
financial support that was conditional on participation in standard training), mental health courts differ
substantially. For example, Redlich and colleagues found in a national survey of approximately 100 mental
health courts that they differed as to whether they (1) focused on misdemeanors, felonies, or both; (2) used jail
as a sanction; (3) used mental health or criminal justice personnel to monitor community treatment; and (4)
required a defendant to plead guilty to an offense as a condition of entry into the court.63
Although there are thus some differences, drug courts and mental health courts also have many similarities.
Most fundamentally, both are based explicitly on the philosophy of “therapeutic jurisprudence”—an analytic
framework that examines “the extent to which substantive rules, legal procedures, and the roles of lawyers and
judges produce therapeutic or antitherapeutic consequences.”64 As a result, one of the core characteristics of
these courts is a shift from an adversarial model to a cooperative model. For instance, under the latter model
as practiced in drug courts, “[t]he prosecution and defense . . . are members of a team with a common goal:
getting the defendant off drugs.”65 This diminution of the adversarial process is not without controversy,
which echoes debates regarding the appropriate role of counsel in civil commitment proceedings [see §§
10.02(b)(3), 10.06]. In particular, critics charge that when defense counsel shift from the adversarial stance,
they run the risk of sacrificing individual rights.66
Of most relevance to the forensic examiner in this regard is the possible impact of the collaborative
approach on the voluntariness and competence of decisions made by defendants who come under the
jurisdiction of the therapeutic courts. All mental health and drug courts assume that the defendant’s
participation in the process is voluntary (and in fact only about 5% of the individuals who are referred to
mental health courts decide not to participate67). But Redlich suggests that, in part because of defense
attorneys’ enthusiasm toward the collaborative approach, at least some of those who appear in mental health
courts are not making an informed, voluntary decision to do so.68 Supporting this view is a study of one
mental health court by Poythress and colleagues, which found that some of those involved did not know they
had the option of proceeding to a regular criminal court, and also found that this latter group scored higher on
a perceived coercion scale than individuals who reported knowing they had a choice to enter the court.69
Although to date there are no reported cases on this particular issue, forensic examiners might well be asked to
evaluate the voluntariness of a decision to accept therapeutic court jurisdiction.
Competence to participate issues are even more likely to arise in therapeutic courts. Because these courts are
considered criminal courts, defendants who plead guilty as a condition of appearing before them or who are
tried there must be competent to make decisions about the criminal process. Stafford and Wygant reported
that of 85 defendants referred for competence-to-proceed evaluations in the first three years of the Akron
Mental Health Court, 77.5% of the 80 defendants who could be located had been found incompetent to
proceed, and 53% of those found incompetent had not been restored to competence after an average treatment
stay of 49 days in the state hospital.70 Thus competence could become a major evaluation issue in therapeutic
courts. In such cases, evaluators should follow the usual guidelines for evaluating an individual’s competence
[see Chapter 6 and § 7.04]. The important point for present purposes is that here too, a danger exists that the
collaboratively oriented attorney will fail to raise the competence issue, despite an ethical obligation to do so

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[see § 6.03(a)].
A separate criticism—one that has been aimed at all special-jurisdiction courts (such as business and
probate courts71), not just at therapeutic courts—is that they tend to become isolated from the rest of the legal
system, and thus might lose sight of universal legal values.72 Perhaps the “doctrinal stability” that comes from
specialization outweighs this concern.73 In any event, legal challenges to the manner in which therapeutic
courts operate have been sparse to date. As the number of these courts continues to expand, this will probably
change.

2.05. CONCLUSION: THE INTERPLAY OF SYSTEMS

Lest the impression be created that the criminal, civil, and quasi-criminal systems described above operate
entirely independently of one another, it may be helpful to conclude this chapter with a hypothetical situation
that illustrates the extent to which they can overlap. The reader may also wish to refer to Figure 2.2, which
depicts in a schematic fashion many of these connections.

FIGURE 2.2. The mental health process. From THE MENTAL HEALTH PROCESS (F. Miller, R. Dawson, G. Dix, & R. Parnas eds., 2d ed.
1976). Reprinted by permission of Foundation Press, Mineola, NY.

Assume that a quarrel erupts between a husband and wife, which climaxes in the husband’s beating the
wife as well as the couple’s child. Of course, the woman may decide not to report the event to anyone in
authority. Or she may contact the local police, triggering the criminal process. Finally, if she thinks her
husband may have mental problems, she may attempt to seek professional intervention, possibly triggering the
civil commitment process. If the police are called in, they may decide to book the husband for assault and

77
battery, take him to a hospital for mental evaluation, or do nothing. Whatever their decision, the prosecutor,
assuming that he or she hears of the case, may decide to handle the case quite differently; in many states, he or
she also has the option of transferring the case out of criminal court to a special-jurisdiction court (focusing on
domestic disputes, drug treatment, etc.). Moreover, in many states, an offense against a child is tried in
juvenile court; if charges are pressed, the whole matter may end up there, and the husband’s fitness as a parent
may become an issue. Simultaneously, the wife may decide to sue the husband for divorce, custody of the
child, and damages on the assault and battery; all three claims are heard in civil court, but the first two may be
tried in juvenile court (or “family” or “domestic relations” court) and the third in a court of general
jurisdiction.
This hypothetical situation illustrates two different points. First, whether a case enters the criminal, civil, or
quasi-criminal system depends in many instances on the preferences of the victim, the predilections of the
police and the prosecutor, and the relevant state law. Especially when mental disorder is an issue, the room for
discretion and flexibility is quite large. “Criminal” cases may be “diverted” to civil commitment or juvenile
court jurisdiction or to private psychiatric care. Or they may result in hospitalization following a finding of
incompetence to proceed or an insanity finding. If conviction occurs, psychiatric care may take place in prison
or after a transfer from prison to a mental hospital.
A second point to be garnered from this brief hypothetical situation is the importance of finding out the
context of an evaluation. A mental health professional who is asked to evaluate an individual needs to know
who is asking for the evaluation, what court will use the evaluation results, and (most crucially) precisely what
is to be evaluated. For example, the husband of the hypothetical victim could be evaluated on the following
issues, depending on which “process” has been triggered and the stage to which it has progressed: (1) his
competence to plead guilty, proceed, or waive an attorney; (2) his sanity at the time of the offense; (3) his
“intent” to hit his wife (relevant to the civil assault and battery claim as well as the criminal charge); (4) the
extent to which he is presently mentally ill and dangerous either to himself or to others; (5) his fitness as a
parent; and (6) his “treatability” for sentencing purposes. And this list does not exhaust the possibilities.
Ideally, a court order or the party making the referral clarifies these contextual issues. If no clarification is
forthcoming, the professional must find out personally. Otherwise, the evaluation may yield results that are
useless to the legal system. This theme is one sounded throughout this volume.

BIBLIOGRAPHY

JACK H. FRIEDENTHAL, MARY KANE & ARTHUR MILLER, CIVIL PROCEDURE (5th ed. 2015).
CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS ch. 1 (6th ed.
2015).
JAMES Q. WILSON & JOHN J. DIULIO, JR., AMERICAN GOVERNMENT: INSTITUTIONS AND POLICIES (14th ed. 2014).

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CHAPTER 3

The Nature and Method of Forensic Assessment

3.01. INTRODUCTION

In this chapter, we examine the forensic evaluation process, focusing especially on the differences between
“forensic” assessments (conducted at the behest of the legal system) and traditional, more common therapeutic
assessments (initiated for purposes of helping patients). Although the previous two chapters have alluded to
several such differences, this chapter explicitly compares these two types of clinical work, looking particularly
at the types of information sought and the strategies used to gather it. We also critique typical and newly
developed techniques of forensic evaluation. More specifically, after describing in general terms the differing
demands of therapeutic and forensic assessment, this chapter discusses several specific aspects of forensic
evaluations: (1) the role of conventional psychological and medical tests and procedures; (2) specialized
assessment instruments and techniques; (3) archival and third-party information; (4) information recovery
procedures from allegedly amnestic examinees; and (5) assessing “response style,” an examinee’s attitude
toward and degree of cooperation with the forensic evaluation.
Although this chapter emphasizes clinical content, it is as important to lawyers as it is to mental health
professionals. In explaining how forensic assessments are crafted, we also hope to clarify the nature and basis
of forensic “expertise.” Furthermore, the final substantive section of the chapter reviews the extent to which
evidence law may limit the use of particular forensic techniques—information that should be useful to
attorneys as well as to clinicians in planning evaluations.

3.02. DISTINCTIONS BETWEEN THERAPEUTIC AND FORENSIC ASSESSMENT

Problem 3.1

You administer a forensic training program in your state, and have just begun a continuing education
program with 30 psychiatrists and psychologists who, on average, have five years of experience providing
therapy but have never conducted a forensic evaluation. They will have several training sessions on various
aspects of civil and criminal law. But your present task is to tell them how the skills they presently possess
may or may not be useful in forensic practice. What should you tell them? How will you explain the role of
diagnosis, clinical interviewing, and psychological and medical testing in forensic evaluation? Will the
mental health professionals have to learn new techniques, and if so, what types and which ones? Will they
need to approach forensic examinees differently from their patients? If so, in what ways?

When mental health professionals evaluate patients for purposes of therapy, they use a variety of tools and
techniques to assess functioning and impairments, to diagnose mental disorders, and to plan treatment. The

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most important technique is the clinical interview—a face-to-face discussion that explores the patient’s
reasons for seeking help, as well as the patient’s present mental state, past experiences, and desires for the
future. Additional or corroborating diagnostic information may come from psychological tests (e.g., measures
of psychopathology, intelligence, or cognitive functioning) and medical tests (e.g., neuroimaging techniques,
electroencephalograms [EEGs], blood tests). Mental health professionals also sometimes use archival
information (e.g., records of prior treatment) and third-party information (e.g., independent accounts of the
patient offered by family members) to better understand a patient’s problems and to aid in assessment and
treatment decisionmaking. In short, mental health professionals who provide treatment are accustomed to
gathering, sifting through, and synthesizing complex data from diverse sources. Yet the large bulk of
information on which professionals rely comes from patients themselves.
These same methods—interviewing, testing, and retrieval of archival or third-party information—are also
useful in forensic evaluations. However, the nature of forensic work affects both the extent to which they are
relied on and the manner in which they are used. Because it is a creature of the legal system, forensic
assessment differs from therapeutic assessment on a number of dimensions.1 Summarized in Table 3.1, the
differences include fundamental aspects of assessment such as the identity of the person being evaluated, the
focus of the examination, the degree of privacy accorded the information that is shared with the mental health
professional, inferences about how the individual responded to questions and approached the evaluation, and
the dynamics and pace of the evaluation. Indeed, forensic examiners even use a different term to refer to the
individual being evaluated—“evaluee” or, as in this chapter, “examinee”—to remind themselves and others
that the individual is not a patient or client who has come for treatment.2 Clinicians who ignore these
differences may select less-than-optimal procedures for conducting their assessments and offer opinions that
do not withstand the scrutiny of the adversary system.

TABLE 3.1. Dimensions Distinguishing Therapeutic from Forensic Assessment

1. Scope. In clinical-therapeutic settings, broad issues, such as diagnosis, personality functioning, and treatment to effect behavior change, are
primary. Forensic evaluations more commonly address narrowly defined events or interactions of a nonclinical nature; clinical issues (e.g.,
diagnosis or treatment needs) are often background rather than foreground issues.
2. Importance of client’s perspective. Although accuracy of information is important in both settings, the treating clinician’s focus is on
understanding the client’s unique view of the situation or problem; a more “objective” appraisal is secondary. In stark contrast, the client in
forensic examination contexts is never the subject of the examination. Rather, the client is the referral source—typically an attorney, court,
or agency such as an employer or insurer. The forensic examiner is concerned primarily with assisting the referral source by providing it with
information about the examinee that it might not otherwise have; the examinee’s perspective and well-being, while important, are
secondary.

3. Voluntariness. Persons seeking mental health therapy typically do so voluntarily. Persons undergoing forensic assessment, however, always
do so at the request or direction of a third party (e.g., judge, attorney, employer, insurer) and in the context of some legal or quasi-legal
issue.
4. Autonomy. As voluntary consumers of therapeutic services, people have greater autonomy and input regarding assessment objectives and
procedures. The objectives in forensic evaluations are determined by the relevant statutes or common law “tests” that define the legal
dispute.
5. Threats to validity. Therapist and client seek to develop a common agenda, based on the client’s treatment needs, that will guide their
interactions. Although unconscious distortion of information is a threat to validity in both contexts, the threat of conscious and intentional
distortion is substantially greater in the forensic context.
6. Relationship and dynamics. Treatment-oriented interactions emphasize caring, trust, and empathic understanding as building blocks for a
developing therapeutic alliance. Forensic examiners may not ethically nurture the client’s perception that they are there in a “helping” role;

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 divided loyalties, limits on confidentiality, and concerns about manipulation in the adversary context dictate more emotional distance
between forensic clinician and client.

7. Pace and setting. In therapeutic settings, evaluations may proceed at a more leisurely pace. Diagnoses may be reconsidered over the course
of treatment and revised well beyond the initial interviews. In the forensic setting, a variety of factors, including court schedules and limited
resources, often limit the opportunities for contact with the examinee and place time constraints on getting closure on the evaluation or
reconsidering formulations. At the same time, the importance of accuracy is enhanced by the finality of legal dispositions.

(a) Scope

The most obvious difference between the forensic evaluation and the typical therapeutic encounter is that the
former focuses on concerns of the legal system, which is only sometimes interested in treatment matters.
Although therapeutic considerations dominate some forensic evaluations (e.g., dispositional assessments in
juvenile delinquency proceedings), psychological well-being is only of tangential relevance in most such
encounters. Evaluating a criminal defendant’s mental state at the time of the offense, a parent’s fitness, or a
potential ward’s capacity to manage his or her affairs requires answering legal questions about how and
whether a mental impairment affects the examinee’s ability to exercise legally relevant capacities, not clinical
questions about how to treat the impairment.
Some clinicians, guided by conventional professional values that put patients’ treatment needs above all
else, have difficulty adapting to this changed emphasis. Yet part of developing forensic expertise is the capacity
to conceptualize and focus on the legally relevant aspects of the case. More tersely, although forensic
examiners owe various duties to the people they evaluate, they should not regard or describe forensic
examinees as “patients” or “clients.”3
At the same time, forensic evaluations almost always leave room for attending to an examinee’s treatment
needs, if only in an informal manner. Even when immediate treatment considerations are not the focal point
of a forensic assessment, examiners usually can suggest a consultation or note therapeutic issues connected
with the case. Therefore, it is neither proper nor necessary to subvert the forensic assessment process with a
misplaced emphasis on diagnostic and treatment concerns.

(b) Importance of the Examinee’s Perspective

In therapeutic encounters, the clinician’s primary interest is the patient’s perspective, revealed gradually and
more candidly over the course of repeated contacts during treatment. The better the therapist understands the
patient’s experience, the more effective the therapist becomes (at least in theory) at developing interventions or
offering interpretations that facilitate change. A more “objective” understanding, although desirable, is of
secondary importance, because useful clinical interpretations (e.g., suggestions to the patient of an alternative
perspective) usually depend more on what a patient experiences than on objective features of the patient’s
situation.4
In contrast, the legal system is interested in the just adjudication of disputes, and accuracy is therefore the
primary focus in forensic assessments. With this in mind, the forensic evaluator should seek information not
only from the examinee, but from all relevant sources, including sources that the examinee may not know
about or would rather not have consulted. In many forensic assessments, considerations of alternative views

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and the need to corroborate examinee/litigant reports make the examinee’s unique perspective of only
secondary importance.

(c) Voluntariness and Autonomy

A third dimension in which forensic and therapeutic endeavors differ is the attitude of the subject. The typical
treatment seeker enters into the clinician–patient relationship voluntarily. In contrast, examinees are often
forced or cajoled into participating in forensic evaluations, either by court order or by their attorneys.
Forensic examinees may resist an evaluation for a number of reasons. First, they may fear its outcome. A
criminal defendant who asserts an insanity defense may be skeptical of a mental health professional selected by
the prosecutor; conversely, some defendants may prefer going to prison to being labeled “crazy” and
hospitalized, and thus will resent any clinician who has the power to affix such a label. Second, even if they are
willing to abide by the outcome of the evaluation, forensic examinees may resent its intrusiveness and insult to
autonomy. Parents in divorce and custody proceedings may view psychological evaluations as unnecessarily
invasive, despite their attorneys’ or the court’s insistence that the evaluation take place. And in virtually any
forensic examination context, an attorney or the court may provide the evaluator with personal information
about the examinee, disclosure of which the examinee did not explicitly authorize.
In short, to a much greater extent than a therapist, a forensic evaluator will have to assess sullen, resistant,
recalcitrant, guarded, or otherwise uncooperative individuals—a situation that may be exacerbated by ethical
rules requiring that examinees be fully informed of the examiner’s role [see § 4.05(d)]. Later portions of this
chapter make some suggestions as to how to respond to such resistance. For now, the important point is that
the examinee in a forensic evaluation is often an unwilling participant in the process, which leads to the next
difference between forensic and therapeutic work.

(d) Threats to Validity

Persons who seek relief from psychological suffering have few motives for conscious or intentional distortion,5
and most of the third parties to whom professionals might turn for archival or collateral information—such as
other health care providers or the patient’s friends and family members—will have little reason to be
knowingly biased in their descriptions of the patient. To the extent that inaccuracy of a patient’s self-report is
a concern in the therapy setting, its principal source is likely to be the individual’s shyness, embarrassment,
defensiveness, or lack of insight and self-awareness.
Forensic evaluations face numerous additional threats to validity, however. The relatively coerced nature of
the evaluation process and the importance of its outcome often give examinees plenty of incentive to be less
than candid about themselves. Beyond that, lawyers may pressure examinees to provide inaccurate
information, or at the least to be uncooperative. For example, some defense attorneys may view prosecution-
requested or court-ordered evaluations of trial competence as “fishing expeditions” designed to circumvent a
defendant’s Fifth Amendment right to silence by obtaining statements about the offense from the examinee
[see § 6.03(c)]. Or a personal injury attorney who represents a plaintiff alleging workplace discrimination may
perceive a defense-initiated forensic examination as harassment designed to discourage the litigant from going

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forward with the case. Accordingly, attorneys may instruct their clients to participate only minimally in the
evaluation and to refrain from discussing certain issues that the examiner may be obligated to explore in order
to address the referral question fully.
Sources of information beside the examinee may also have an interest in the examiner’s findings and thus
may also be tainted. Consciously or unconsciously, these parties—most likely the attorneys, but also the
examinee’s relatives and friends, law enforcement officers, victims, treatment providers, and potential
beneficiaries of any money involved—may distort the fact-gathering process by sharing only certain
information with the examiner or presenting information in a biased light.

(e) Relationship Dynamics

Because of the need for accurate information, the relationship between the forensic examiner and examinee
may differ dramatically from a treatment relationship. The typical therapist usually tries to be empathic with
the patient. Confrontation, when used, is carefully timed and attempted only if the therapeutic situation
requires it and the treatment alliance appears strong enough to withstand it. Maintenance of the relationship
usually takes priority over resolving conflicting reports or convincing the patient to recant information or
endorse a different view.
A forensic examiner, on the other hand, is usually much more detached. Although examinees deserve
compassion for their humanity and their difficult legal circumstances, the examiner’s primary goal is to assist
the legal decisionmaker by providing information about the subject of the examination that the decisionmaker
might not otherwise have. Forensic examiners cannot rely on the development of a trusting relationship over
time to break down either conscious or unconscious barriers to disclosure; nor do they offer the types of
interpretations that therapists use (e.g., comments about transference). Indeed, some commentators have
argued that using empathy to obtain information from a forensic examinee is unethical.6 Although we do not
adopt such a view, we do believe that examinees must be alerted to the nontreatment role that the evaluator
will play [see § 4.05(c)].
Forensic examiners may be not only more dispassionate than therapists, but also more confrontational.
Because forensic examinees are less likely than therapy patients to be wholly candid in their representations,
and because an examiner’s conclusions are more likely to be scrutinized by others, inquiries tend to be more
focused and probing than assessments in therapeutic contexts. Forensic examiners are more likely to seek out
sources of information beyond the subject of the examination, and they will be more likely to challenge and
confront examinees whose reports are dubious and inconsistent, or do not comport with credible information
gained from other sources. More is said about these different techniques later in this chapter [see § 3.07].

(f) Pace and Setting

Ideally, both mental health treatment and forensic assessments would allow for repeated contact and
observation under optimum assessment conditions, unfettered by external constraints.7 As reflected in Table
3.1, however, these conditions may be met less often in forensic contexts. In criminal forensic evaluation
contexts, conditions of incarceration often limit access to defendants—as can the costs involved in traveling to

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jails or prisons, or the unwillingness of law enforcement professionals to transport defendants to examiners’
offices. Furthermore, in many jails and prisons, the physical settings and circumstances in which mental
health professionals examine defendants fall far below optimal. In civil forensic evaluations, time constraints
associated with scheduled depositions or court proceedings may affect forensic evaluations adversely, as can
limited access to plaintiffs and witnesses.
Finally, the forensic evaluation process is relatively finite, resulting from the fact of adjudication. In
contrast to the therapeutic enterprise, opportunities to reconsider and revise clinical forensic opinions over a
long period are rare. Once submitted to the court, the examiner’s report or testimony is likely to become part
of the “record” and not subject to change.
Having provided a general backdrop that lays out broad differences between therapeutic and forensic
assessments, we now consider the utility and limitations of some particular assessment techniques and
strategies.

3.03. TESTING AND ASSESSMENT PROCEDURES

Mental health professionals can employ a vast array of tests and other assessment techniques to assess their
patients. For a number of reasons, testing has also become a significant aspect of forensic evaluation. Some of
these reasons are not particularly good ones. Historically, conventional psychological testing played an
important role in justifying the participation of psychologists (as opposed to psychiatrists) in the legal
process.8 Furthermore, at least historically, some psychologists (wrongly) believed that a forensic examination
was incomplete unless it included a battery of tests devoted to assessing all aspects of the examinee’s
functioning (cognitive, intellectual, personality).9 Additionally, testing in forensic examinations may
sometimes be used to lend an air of science and objectivity to opinions, which some commentators suggest
that lawyers and judges favor.10
Of course, testing can play an important role in forensic evaluation. But test-intensive evaluation that
occurs after little thought, at significant expense, and at the cost of other more productive assessment activities
is counterproductive and can result in less accurate and helpful opinions about the psycholegal issues in
dispute. Commentators have identified several limitations of conventional tests and laboratory procedures,11
some of which might lead to exclusion under Daubert or other evidentiary screening tests.12 Deciding
whether, when, and how to use these assessment techniques as part of a forensic evaluation requires
consideration of several factors, identified in Table 3.2.

TABLE 3.2. Factors to Be Considered in Using Psychological Assessment Techniques as Part of a Forensic Evaluation
1. What construct is to be assessed?
2. How directly does the instrument assess the construct of interest?

3. Are there alternative methods of assessment that assess the construct of interest in more direct ways?
4. Does use of this instrument require an unacceptable degree of inference between the construct it assesses and the psycholegal issue(s) of
relevance?
5. Is the instrument commercially published?

6. Is a comprehensive users’ manual available?

7. Have adequate level of reliability been demonstrated?

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 8. Have adequate levels of validity been demonstrated?
9. Is the instrument valid for the purpose for which it will be used?
10. What are the qualifications necessary to use this instrument?
11. Has the instrument been subjected to peer review?
12. Does the instrument include measures of response style?

It is helpful to separate tests and other assessment tools into three categories, following the lead of
Heilbrun, Rogers, and Otto.13 The first category is clinical assessment instruments (CAIs)—that is,
psychological and medical tests and other assessment techniques that facilitate assessment, diagnosis, and
treatment planning in therapeutic contexts. Many of these assessment tools benefit from careful development,
a considerable research base, and good attempts at validation. To the degree that they facilitate the forensic
examiner’s understanding of some aspect of the examinee’s clinical functioning that could affect a psycholegal
issue in dispute, CAIs can be of value in forensic contexts as well. However, as discussed further below, CAIs
are less likely than the two other types of assessment techniques described here to be of assistance in forensic
psychological and psychiatric evaluations. This is because these tests and tools assess general psychological or
medical constructs (e.g., intelligence, depression, academic abilities, thyroid functioning, brain structure,
metabolism) that do not speak directly to the specific issues of interest to legal decisionmakers (e.g.,
competence to proceed, best interests of the child, capacity to manage one’s personal and financial affairs).
Forensically relevant instruments (FRIs), like CAIs, are techniques that aid in assessment of clinical
constructs. But the clinical constructs assessed by FRIs are those that are most relevant to evaluation of
persons who are involved in the legal system in some way (e.g., psychopathy, response style, violence risk).
Because FRIs are less frequently used by mental health professionals, they tend to be less well researched.
However, those FRIs that are well validated provide a good balance between clinical confidence and legal
relevance.
The final category includes forensic assessment instruments (FAIs). First defined and conceptualized by
Grisso,14 FAIs are designed for use in the legal process and assess or structure assessments of psycholegal
capacities, abilities, or knowledge. Examples of FAIs include assessment tools that structure an inquiry into a
criminal defendant’s competence to stand trial (e.g., the Fitness Interview Test—Revised) or that provide
comparative data about a defendant’s capacity to understand and exercise his or her constitutional right to
avoid self-incrimination (e.g., the Instruments for Assessment of Understanding and Appreciation of
Miranda Rights). The development of FAIs reflects mental health professionals’ recognition that CAIs and
even FRIs are of limited use in forensic contexts, and represents an attempt to focus forensic assessment on
the psycholegal issues in dispute. Increasingly, forensic examiners use FAIs to supplement, if not replace,
information obtained via more traditional assessment tools.

(a) Tests That Assess Clinical Constructs (CAIs and FRIs)

Table 3.3 identifies some of the more common types of psychological and medical tests and assessment
techniques, and lists some of the more commonly used instruments for each type. As indicated above, these
assessment tools provide information about some aspect of the examinee’s emotional, behavioral, and

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cognitive functioning that might affect the psycholegal capacity at issue. Some instruments, like the SCID-5
(see Table 3.3 for full names of this and other tests), are highly structured interviews that formalize inquiries
about symptoms and yield outcomes that closely track diagnostic categories of the Diagnostic and Statistical
Manual of Mental Disorders (DSM). Others are self-report personality inventories, such as the MMPI-
2/MMPI-2-RF and MCMI-IV, that consist of true–false items and produce results or indices that are related
to global symptom patterns, likely diagnoses, and characteristics of general personality functioning and
behavior. These inventories may inform judgments about specific diagnoses or provide hypotheses about
general symptom clusters and behavioral patterns to look for with the examinee.

TABLE 3.3. Sampling of Conventional Psychological Assessment Tools

Structured diagnostic interviews
Mini-International Psychiatric Interview for Children and Adolescents (MINI-KID)
Structured Clinical Interview for DSM-5 (SCID-5)

Checklists and rating scales

Behavior Assessment System for Children, Third Edition
Brief Psychiatric Rating Scale—Anchored (BPRS-A)
Child Behavior Checklist (CBCL)
Hamilton Depression Rating Scale (HAM-D)
Psychopathy Checklist—Revised (PCL-R)

Structured self-report measures of emotional and behavioral functioning

Beck Depression Inventory–II
Miller–Forensic Assessment of Symptoms Test (M-FAST)
Millon Clinical Multiaxial Inventory–IV (MCMI-IV)
Minnesota Multiphasic Personality Inventory–2 (MMPI-2)
Minnesota Multiphasic Personality Inventory–2—Restructured Form (MMPI-2-RF)
Personality Assessment Inventory (PAI)
Personality Assessment Inventory—Adolescent (PAI-A)

Structured self-report measures of personality

California Psychological Inventory (CPI)
NEO Personality Inventory—Revised (NEO PI-R)
16pf Questionnaire

Unstructured self-report measures of emotional and behavioral functioning

Rorschach Inkblot Technique
Thematic Apperception Test (TAT)

Tests of intellectual functioning

Reynolds Intellectual Assessment Scales, Second Edition (RIAS-2)
Stanford–Binet Intelligence Scales, Fifth Edition (SB5)
Wechsler Adult Intelligence Scale—Fourth Edition (WAIS-IV)
Wechsler Intelligence Scale for Children—Fifth Edition (WISC-V)

Tests of memory functioning

Test of Memory and Learning, Second Edition (TOMAL-2)
Wechsler Memory Scale—Fourth Edition (WMS-IV)

A third type of test is the projective test, like the Rorschach Inkblot Technique or TAT. These tests do not

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rely on self-reports of symptoms or experiences; rather, they require the examinee to view, interpret, and
describe complex and ambiguous stimuli. The Rorschach stimuli are monochromatic and color inkblots,
whereas the TAT stimuli are pictures, most of which portray individuals or interpersonal interactions, about
which the examinee develops stories. The clinician then scores and interprets the examinee’s responses (often
aided by reference to published norms) to develop hypotheses and draw inferences about diagnosis and
personality functioning. The idea behind such assessments is that, by “projecting” their own perceptions and
interpretations onto these ambiguous stimuli, examinees reveal features of their emotional, behavioral, and/or
cognitive functioning.
Still different in structure are measures of intelligence, academic achievement, and neuropsychological
functioning. These instruments often contain multiple subtests consisting of problems to be solved or other
kinds of items that have objectively or normatively “correct” answers. An examinee’s performance on these
types of tests is typically interpreted in light of the performance norms of relevant populations. The results can
help an examiner delineate specific strengths and weaknesses in the examinee’s cognitive functioning or
academic achievement.
In addition to radical structural differences, these tests vary in the range of psychopathology to which they
are sensitive. The personality inventories and projective tests may be sensitive to a variety of symptoms, but are
best used to assess mental disorders that are not usually accompanied by impaired consciousness or significant
deficits in cognitive functioning. In contrast, measures of cognitive and neuropsychological functioning are
preferred in a case where the examiner suspects more serious impairment and needs specific information about
particular aspects of the examinee’s cognitive functioning (e.g., memory, problem-solving skills, executive
functioning, capacity for abstraction, attention/concentration) that may affect some psycholegal capacity or
deficit.
Two major sources of information about psychological tests are the Mental Measurements Yearbook15 and
Tests in Print.16 The Mental Measurements Yearbook periodically publishes updated lists of available tests and
comprehensive reviews of research on selected instruments. Tests in Print is a comprehensive bibliography of
commercially available tests that are currently in print in the English language. Information provided for tests
referenced in this publication includes test purpose, intended test population, administration times, scores
generated, price, test publisher, in-print status, test acronym, publication date(s), and test author(s). Readers
of Tests in Print are also directed to test reviews that have been published in the Mental Measurements
Yearbook. Test manuals and published research reports also provide information about the reliability and
validity of tests, both for a given population and for the different purposes for which the tests have been
developed. Examiners and lawyers should consult this information whenever they rely on these instruments.
In addition to consulting results of psychological testing, psychiatrists may use a variety of medical tests
and sources of information to gain insight into medical factors that affect an examinee’s functioning or
presentation. In some referrals, medical results are available through documentation created prior to the
assessment; in others, psychiatrists may request the studies themselves in the course of their evaluation. For
example, pharmacy records can prove helpful for corroborating an examinee’s claims about past medications
and dosages. Such records may also provide hints about possible substance use problems, as may urine testing
initiated as part of the forensic evaluation. Treatment records or newly ordered blood tests may reveal
information about medical conditions that cause psychiatric symptoms (e.g., thyroid abnormalities that could

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explain symptoms reported by patients who feel depressed or anxious). Results from neurological testing (e.g.,
EEGs for evaluation of complaints suggestive of epilepsy, or neuroimaging studies that evaluate features of
brain structure or functioning) may lead a psychiatrist to suspect or rule out brain conditions that often
manifest themselves as mental symptoms.17 In certain high-stakes criminal cases, an attorney may even
demand brain imaging studies of a defendant or plaintiff, in the hope that these will reveal concrete evidence
that the client has an “abnormal” brain. Such findings may help confirm or establish the presence of brain
disorders.18
In considering whether to rely on any of these CAIs or FRIs, examiners, lawyers and courts should be
aware of several special problems that arise when CAIs and FRIs are used for forensic purposes.

(1) Relevance to Specific Legal Inquiry

The primary determinant of whether to administer tests in any assessment, whether for therapeutic or forensic
purposes, should be the degree to which test results will provide data that will inform opinions relevant to the
psycholegal matter(s) in dispute. Most psychological and medical tests have neither been developed nor
validated specifically to inform judgments about legally relevant behavior. This fact should caution against
their indiscriminate use. Instead, a first consideration in deciding whether to use conventional testing (i.e.,
CAIs) should be whether the information it provides is of merely background concern, given the psycholegal
question being asked. If an examinee’s clinical condition is well established and the test results can provide no
data that are directly relevant to the psycholegal issue(s) in dispute, then the clinician probably should forgo
using the test.19 On the other hand, if research indicates a relationship between the results of a particular test
and a construct that is related to legally relevant behaviors, use of the tests may be well advised.20
Examples of legal matters in which testing information might be particularly useful include dispositional
decisions (e.g., sentencing); personal injury litigation involving allegations of impaired, emotional, behavioral,
or cognitive functioning; and some entitlement cases (e.g., Social Security, private disability, workers’
compensation)—all of which hinge to a significant degree on information about the nature and extent of an
individual’s current functioning and adjustment. In many forensic contexts, however, this type of information
is of secondary concern, even when present mental state is the primary focus. For example, an assessment of
competence to proceed focuses on the defendant’s present ability to assist counsel and to adequately
understand the legal proceedings.21 These abilities are defined in functional, not clinical, terms, and if these
abilities are present, lingering doubts about clinical issues such as differential diagnoses may not need to be
resolved. Unless and until legitimate concerns about the examinee’s functional abilities arise, the clinical issues
are less important. Similarly, diagnosis and treatment information is generally only of secondary importance in
addressing the many other criminal and civil competence issues that arise in the legal system [see Chapters 6,
7, and 11].

(2) Hypothetical Nature of Test Results

Some clinicians fall quickly into the trap of concluding that “testing indicates that this individual has
characteristics or tendencies X, Y, and Z.” Yet norm-referenced interpretive guides for most tests of personality

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and psychopathology (as distinguished from many medical tests and measures of intelligence, cognitive
functioning, or academic achievement) merely represent compilations of features found in groups of
individuals who produce a particular test profile. When an examinee produces a particular PAI or MMPI-2-
RF profile, or obtains a certain score on the Beck Depression Inventory–II, the chances increase that he or she
shares at least some of the behavioral characteristics associated with other members of that criterion or
comparison group. But the degree of fit between this individual and the reference group’s general
characteristics can be determined only by gathering additional information about the examinee.
Accordingly, as we suggested in Chapter 1 [see § 1.03(c)], the interpretive results of many psychological
tests are best considered as hypotheses about emotional or behavioral functioning.22 In therapeutic contexts,
investigation and confirmation of the hypothesis typically occur during the course of therapy. But in forensic
contexts, where contact with the examinee is likely to be more limited, archival or third-party information
may be necessary before these test-generated hypotheses can be accepted or rejected.
Such corroboration can be crucial. Consider a hypothetical evaluation of a female plaintiff who alleges
sexual harassment at her workplace. It would be one thing to assert that test results raise the possibility of
personality traits such as manipulative and seductive behavior; it is quite another to assert, based on the test
results alone, that the examinee meets criteria for histrionic personality disorder or was seductive in her
relationship with her employer, and thus may have precipitated the conduct and situation that brought about
litigation. In the absence of corroborating information, forensic examiners should be cautious in the
conclusions they draw regarding specific behavioral tendencies or characteristics implicated by profiles on a
psychological test or tests; these are best considered as tools for generating hypotheses worthy of further
investigation and consideration.

(3) Limitations in Reconstructive Contexts

In several types of forensic assessments, the examiner is tasked with developing information about a person’s
mental condition at some prior point in time. Perhaps most common are evaluations of criminal defendants
who raise an insanity defense, but retrospective inquiries also occasionally arise regarding a criminal
defendant’s competence to proceed or waive important rights at some point in the process23 or in cases dealing
with testamentary capacity [see § 11.05(b)].
Conventional psychological and medical testing clearly has less utility in reconstructive evaluations than in
assessments that focus on current mental state. Although some aspects of psychological and psychiatric
functioning (e.g., intelligence) are more likely to remain relatively stable over time, other aspects of
personality, symptoms (e.g., depression or anxiety), and biological status (e.g., lithium levels) are less static.
The greater the length of time between the assessment and the time of interest, the greater the likelihood that
natural processes (e.g., typical forgetting or the natural course of some illnesses) or situational factors (e.g.,
treatment received, the stress of incarceration, or adverse life events) will influence the test results. For these
reasons, particularly when more dynamic factors are assessed, we encourage the use of archival methods (e.g.,
prior records and investigative interviewing) as superior data sources in reconstructive evaluations, and we
advise forensic examiners to consider use of psychological and medical tests very cautiously [see § 8.06(c)(2)].
Furthermore, as other parts of this book discuss [§ 1.03(a)], neurobiological tests such as brain imaging

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cannot provide evidence that leads directly to conclusions about a criminal defendant’s culpability, “mental
disease or defect,” mens rea, or capacity to follow the law; they can only confirm that certain conditions exist,
the consequences of which at a particular point in time must be determined through other means. This is not
to say that accessing results of tests that were administered close to the time or event of interest cannot be of
value. But these test results should be considered archival data.

(4) Face Validity Considerations

The ultimate practical utility of a forensic report, or testimony based on that report, depends on its persuasive
message to a specific audience: the legal system and its personnel.24 Therefore, when selecting from among
available evaluation procedures, examiners should also consider how the legal system will respond to those
procedures.
Receptiveness may vary somewhat from attorney to attorney or from court to court, and anticipating the
reception that certain methods or data will receive may be difficult. It is fair to say, however, that courts often
view psychiatry and psychology with skepticism.25 Judges and attorneys understand interviewing and can
understand how behavioral trends might be gleaned from record reviews. But psychological test results may be
less acceptable to judges, jurors, and lawyers, who (like most people) respond more immediately to
explanations based on idiographic rather than nomothetic data26 [see § 1.03(c)(2)], and who may have trouble
seeing how evidence that relies excessively on statistics can help dispose of individual matters.27 This is not to
say that mental health professionals should avoid using traditional diagnostic testing and laboratory
procedures simply because lay jurors and legal professionals may be unfamiliar with them. Indeed, as we noted
earlier, research indicates that judges and attorneys sometimes prefer clinical opinions that are accompanied by
testing—perhaps because of the perceived objectivity of such techniques. Thus mental health professionals
should unapologetically use tests if doing so will best enable them to address the specific psycholegal
questions. Other things being equal, however, psychologists and psychiatrists should consider the comparative
face validity of available methods and ponder how those methods can help legal consumers understand the
bases for clinical inferences and opinions.
Our contention has a flip side as well: Psychologists and psychiatrists should not use tests simply because
they impart an air of science to their efforts. Although positron emission tomography (PET) scans and
computer-generated PAI and MMPI-2-RF profiles and interpretations may look sharp and have a well-
developed research base, they should be used in forensic evaluations only when they genuinely help answer the
psycholegal issue, not when they serve merely as “window dressing” to lend specious credibility to an opinion.
As noted above, attorneys may occasionally insist on brain imaging “pictures,” in the belief that these will
influence a jury. But research is at best ambivalent about whether neuroimaging is any more influential than a
competent description of symptoms.28 Unless such images are useful for purposes of getting across a legally
relevant clinical opinion, they are not appropriate courtroom evidence.

(b) Forensic Assessment Instruments

The first FAI—A Checklist of Criteria for Competency to Stand Trial—was published in 1965 and was

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developed by psychiatrist Ames Robey.29 The number of such instruments has since increased dramatically.
Heilbrun and his colleagues identified 32 assessment instruments and techniques published for use in forensic
evaluations during the 1990s, in contrast to a total of 10 such instruments that existed previously.30 A perusal
of publications on violence risk and response style assessment shows that many more FAIs are available today.
For example, Singh and his colleagues identified more than 400 risk assessment tools that mental health
professionals were using as of 2014.31
Most FAIs appear to be face-valid instruments; that is, the instruments incorporate content clearly relevant
to the capacities or behavior that the FAIs purport to assess. Furthermore, the chain of inferences from test
behavior to legal criterion is typically short, and when gathering normative data,32 FAI developers have often
tested relevant legal populations. But an investigation of the conceptual development, psychometric
sophistication, and validating research for the various instruments reveals radical differences among them.
Some FAIs are best described (and in some cases intended) as aide-memoires or interview guides that help
clinicians to structure their interviews and judgments about appropriate legal issues (e.g., Robey’s Competency
Checklist or the Competence Assessment Instrument;33 the Fitness Interview Test—Revised34). These
instruments offer no pretense of including objective scoring criteria or allowing norm-referenced
interpretation based on known groups’ performance.35 Employing these tools in evaluations causes no
problem, provided that examiners use them as intended (i.e., as ways to ensure a structured and comprehensive
evaluation of matters pertinent to the psycholegal issues in dispute, rather than as “diagnostic tests”). Other
FAIs provide some of the trappings of sophisticated, normed instruments (i.e., multiple scales and apparently
quantified measures), but are conceptually flawed36 or have little empirical research to validate the authors’
claims about the instruments’ capabilities.37 Unfortunately, as Otto and Heilbrun have noted,38 an increasing
number of these FAIs (as well as FRIs) are marketed without adequate research and development. On the
other side of the ledger, some FAIs have been solidly constructed from conceptualization to validation.39
Nonetheless, forensic examiners should adopt a “caveat emptor” approach when considering use of any of
these instruments, and should not simply assume that their commercial availability renders them valid and
appropriate for use in forensic (or other) assessment contexts.
It is beyond the scope of this handbook to provide a detailed analysis of all the FAIs that are currently
available. We mention some of the more prominent instruments at appropriate points throughout the book
[see, e.g., §§ 6.07, 8.06(c), 11.02(b)(2), 11.03(d), 16.04(e)]. Attorneys and clinicians who want more
information may avail themselves of Grisso’s excellent, although today somewhat outdated, review of
instruments that were published through the early 21st century.40 We encourage the use of well-validated
FAIs because of their direct relationship to issues of concern to the legal decisionmaker. We caution
practitioners, however, that valid instruments do not exist for most psycholegal questions that forensic
examiners encounter. Other methods, such as investigative interviewing, may be more appropriate in these
instances.

3.04. ARCHIVAL AND THIRD-PARTY INFORMATION

In addition to the examinee and test results, documentary and third-party sources of information often inform
forensic evaluations. After explaining why archival and third-party information play such a significant role in

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the forensic context, this section describes, in a general way, the process of obtaining such information.
Specific suggestions on the types of third-party information to seek for particular examinations are left to the
relevant chapters.

(a) Reasons for Seeking Third-Party Data

As suggested earlier in this chapter, forensic evaluators are more likely than therapists to seek and rely on
third-party data for three reasons: a greater need for accuracy; differences in response style between persons in
therapeutic and forensic evaluation contexts; and the greater scrutiny that evaluators’ conclusions receive in the
legal arena. The first goal is probably the most important. By stating that evaluators should be concerned
about accuracy, we do not mean to suggest that they must resolve conclusively all conflicting accounts about
the case. That task is ultimately the job of the legal system, and in any event, psychologists and psychiatrists
usually have no specialized ability or insight that allows resolution of such “disputes of fact.” However, some
understanding of what has happened or is happening to the examinee will obviously facilitate the evaluation;
furthermore, reconciliation of different points of view may occasionally be possible, and examinees sometimes
recant earlier accounts when confronted with the truth. Thus the evaluator should try to understand which
accounts of relevant events and family, medical, and social history are most plausible.
Given this goal, archival and third-party information is a mandatory component of most forensic
evaluations.41 Traditional clinical methods (i.e., interviewing and testing) have inherent limitations as means
of obtaining accurate information. Most obviously, they rely on an examinee’s memory, motivations, and
communication abilities. Even if the examinee does not exaggerate or fabricate symptoms and does not deny
or minimize problems, typical forgetting, impaired memory, treatment received since the legally relevant
event, and other factors may influence what the examinee says and recalls. Concern about these considerations
aside, traditional assessment techniques may still fail the forensic examiner: Such techniques tend to produce
only a general diagnosis based on present functioning, whereas making judgments about how someone’s
emotional, behavioral, and cognitive functioning is relevant to a psycholegal issue often requires developing
information about specific symptoms experienced at a circumscribed point in time. For example, standard
mental health evaluation methods may make it clear that a person has schizophrenia, but those methods
usually will not provide enough information to assess the person’s parental behavior in the past two years, or
his or her motivation for a particular crime (e.g., was a theft committed for “crazy” reasons, or to obtain
money?). As these examples illustrate, archival and third-party information is particularly important in
reconstructive evaluations (e.g., insanity, testamentary capacity, and psychological conditions existing before
an accident) where the focus is the examinee’s mental state at some specific point in the past. [See § 8.06(a)
and Table 8.4 for a case-specific illustration of how useful third-party information can be.]
Using such information also can enhance the examiner’s credibility with the judge, jury, and attorneys. To
the degree that these parties view the forensic examiner as the mouthpiece for the litigant’s self-serving
story,42 they will discount and potentially disregard the examiner’s testimony or report. Efforts to corroborate
statements provided by examinees and to weigh their accounts against information from other sources can
significantly improve the weight assigned to the examiner’s conclusions.

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 (b) The Process of Obtaining the Data

The first goal of the evaluator seeking archival and third-party information should be to identify the types of
information needed. For instance, family history and mental health treatment records may be essential in
criminal dispositional evaluations, but are less important in trial competence evaluations. In contrast, records
detailing the charges, allegations, and penalties that the defendant is facing are critical in an evaluation of
competence to proceed, but are of less significance in a capital sentencing proceeding. When an examiner is
considering an individual’s testamentary capacity, family history will usually be irrelevant, but medical records
that provide some insight into the testator’s emotional, behavioral, and cognitive functioning at and around
the time the contested will was executed may provide crucial information. As noted earlier, each chapter of
this book describes in more detail the most useful third-party information in the forensic context it covers.
But the types of information so identified are not exclusive. Initial data may yield a variety of unanticipated
leads, and in many kinds of forensic assessments the sources of potentially valuable third-party information are
numerous and not so obvious. In many cases, the examiner may find that a multistage evaluation is optimal,
on the theory that the earlier stage or stages will clarify the third-party information needed for subsequent
evaluations.43
How one goes about accessing third-party information can be quite complicated. The process is affected by
a number of factors, including the type of case, how the examiner gets involved in the case, the party retaining
the examiner, the type of information sought, and the party to whom the information belongs.44 Once all the
information needed has been identified, it would ideally be provided by the referral source (usually an
attorney, occasionally the court, and at times a government agency). In reality, however, forensic examiners
cannot depend on the referral source to carry out this task. Some attorneys appear to think that forensic
examinations are no more complicated than outpatient doctor visits, at which patients report symptoms and
clinicians produce diagnoses and treatment. Other attorneys who are willing to gather collateral information
may still not be helpful, either because they are not familiar with the process for obtaining information (e.g.,
the fact that the examinee’s consent may be required before medical, educational, or other types of records are
released), or because they are familiar with it but have been stymied [see, e.g., § 2.04(b) on discovery]. And
finally, some attorneys may withhold information from examiners in an effort to shape a particular opinion or
to conceal what that information reveals about their clients.
Examiners can respond to such obstacles in various ways. When the referring attorney balks at providing
assistance, the examiner can explain that he or she will not issue an opinion or report without getting and
reviewing the necessary data. Alternatively, the examiner can tell the attorney that he or she will form an
opinion and write a report, note what data are missing, and retain the right to change relevant opinions if and
when the data become available—including at trial if the data are presented there by opposing counsel.
Attorneys who are willing to help but are ignorant of the process can be educated. Explaining what
information is needed and why the examiner needs it should help attorneys whose efforts have been blocked
by opposing counsel to draft a motion for judicial sanctions. Even if such sanctions are not pursued, proof of a
specific request can be invaluable at trial—especially if, during cross-examination, the party who refused to
provide the information tries to suggest that the examiner’s opinion is compromised by not having obtained
and considered it.

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 A final alternative for the frustrated forensic examiner is to contact third parties or possessors of relevant
documents directly, by phone or letter. Generally, however, this approach should be a last resort, or should be
used only when custom and common sense have established its permissibility (e.g., contact with jail officers in
the context of a competence evaluation, or with the arresting officer in connection with an insanity
evaluation). An examiner who does not independently pursue records he or she told the referral source were
needed is unlikely to be faulted, and in any event can identify the true culprit. Moreover, if the examiner is an
agent of an attorney, it may be unethical, under legal ethics rules, to make contact with a person represented
by counsel without that counsel’s consent.45 Although it is not unethical for lawyers or their agents to contact
witnesses or other third parties (as opposed to parties to litigation), these individuals may be misled about the
adversarial nature of the process if the call comes from a mental health professional rather than a lawyer.46
Furthermore, the forensic examiner may end up working at cross-purposes with attorneys who are
simultaneously collecting information from the witnesses. At the very least, the examiner should notify the
attorney of any intended contact, and, when contact is made, immediately make clear to the third party for
whom he or she is working.

3.05. AMNESIA

Forensic examiners often encounter individuals who report loss of memory for some past period that is
pertinent to the forensic assessment47—a condition that health care professionals call “focal amnesia” when it
is genuinely present.48 In such a case, the claimed memory problem differs from the gross, permanent memory
impairment observed with dementia or other severe brain diseases, in that the affected individual’s current
memory functioning appears to be intact. Rather, the individual claims partial or complete amnesia for events
that occurred during a restricted period.
In ordinary conversation, people use the single word “memory” to refer to what actually are diverse mental
processes, phenomena, and capabilities. Behavioral neuroscience recognizes this diversity by fractionating
memory into various types and subdivisions.49 A first division involves distinguishing “short-term” memory
(e.g., recall of a telephone number we have just heard), which involves a somewhat limited retention capacity,
from “long-term” memory, which involves recall of things over a much greater time period (often months or
years after their first registration and encoding).
Long-term memory comes in two broad types. One type is “implicit” or “procedural” memory—that is, our
ability to undertake activities and perform tasks that in common parlance we “know how” to do (even though
we may do them without being consciously aware that we are remembering how). For example, someone who
is reading and understanding the sentences in this book “remembers” how to read, just as someone who
successfully drives to work each day can be said to “remember” how to operate a motor vehicle. People with
severe dementia often remember how to eat and dress themselves, even when they can no longer recall the
names of family members or what they ate or wore the day before.
This is because the ability to remember names or one’s past actions involve a different type of memory:
“explicit” or “declarative” memory—a term designating that we “know about” specific facts or “know that” we
have experienced specific things. Explicit or declarative memory involves two subtypes of recalling: “semantic”
memory and “autobiographical” memory.50 Semantic memory is the capacity to state things that we have

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learned (e.g., state capitals, the number of months in a year, or the meanings of words) or to recognize faces of
famous people. Typically, semantic memories are context-free; that is, they involve facts that we have learned
(usually through repetition) without necessarily knowing exactly where and when we learned them.
Autobiographical (also termed “episodic”) memory, by contrast, contains details of incidents associated with
particular times and locations, such as our date for the high school prom or the time and circumstances in
which we met our future spouse. Isolated memory problems for autobiographical events within a defined
temporal period surrounding an alleged offense is the form of amnesia typically claimed by criminal
defendants.
To someone charged with a serious criminal offense, claiming amnesia can seem like a relatively easy way
to avoid criminal prosecution, and some studies indicate that a large proportion of amnesia claims are
fabricated.51 Defendants may have several motives for feigning memory gaps: (1) Claiming amnesia might
allow a defendant to testify without having to answer questions about actions during the alleged offense; (2) it
may be easier to claim memory loss than to try to lie successfully or to create a false alibi; (3) false claims of
memory loss may be accepted as veridical by naïve examiners; or (4) claiming memory loss for an offense can
allow a defendant to avoid discussing his or her actions and potentially painful memories associated with
them.52
Not all defendants’ claims of amnesia are false, however. Several neurological and physiological conditions
can affect the brain structures that help us encode and consolidate memories. Many medical conditions (e.g.,
delirium, hypoglycemia, seizures, and head injuries) can cause transient impairment of memory formation.53
Heavy alcohol consumption can impair most aspects of memory formation, and in particular can impede
storage of memories for longer than several seconds. The result is that individuals can function coherently and
respond relevantly to environmental surroundings, yet on the following day may have limited recollection of
what happened. Studies demonstrate impaired memory formation at blood alcohol levels as low as those that
produce moderate intoxication.54 Complete absence of memory for a period—an alcohol “blackout”—may
occur at higher blood alcohol levels (>0.20 g/dL), particularly when the individual has consumed a substantial
amount of alcohol (i.e., ten or more drinks) quickly.55 Alcohol blackouts are commonly reported among many
young people (e.g., college students56), and because many criminal acts occur during periods of inebriation,
alcohol is a commonly claimed cause of amnesia among criminal defendants.57 Concurrent use of other
substances (particularly sedative drugs or marijuana) may enhance the potential for alcohol to produce a partial
or complete blackout for some portion of the intoxication period.58
The term “functional amnesia” refers to a disruption of episodic/autobiographical memory that occurs in
the absence of a direct, organic influence on brain functioning, and that results from intense psychological
stress.59 Among the emotional states that might contribute to this form of amnesia are the kinds of extreme
rage, anger, dissociation, or psychosis individuals may experience during or after their participation in a violent
crime. Thus defendants charged with emotionally charged homicides are more likely to report amnesia (56%)
than are defendants charged with “instrumental” homicides (i.e., killing to achieve some independent aim).60
Investigations of patients with episodic/autobiographical memory impairments suggest that intensely
emotional events are associated with localized alterations in brain metabolism and subtle changes in brain
structure. One resulting hypothesis is that functional retrograde amnesia results from a desynchronization in
the areas of the brain that allow us to locate ourselves or “mentally travel” in time and to analyze our own

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thoughts, and that are involved in evaluating emotions.61
Although it can be difficult to determine whether claimed amnesia is genuine or feigned, forensic
examiners can use several types of evidence, interviewing, and information-gathering methods to try to sort
matters out. As forensic psychiatrist Charles Scott explains,62 the process involves a systematic evaluation of
the following:

1. Evaluating a defendant’s medical and psychological status for factors and conditions (such as head
trauma) that, when present, are known to cause memory loss. As part of this evaluation, the examiner can
conduct a detailed inquiry into various facets of memory (e.g., orientation, recent and remote memory, ability
to recall newly presented material).
2. Detailed questioning of the examinee about the nature of the claimed amnesia and recovery afterward.
This information can then be compared with what mental health professionals know about the usual course of
amnesia in genuine cases of dissociation, head trauma, and so on. Similarly, certain types of memory deficits—
such as abrupt onset and ending of an amnestic period—are not typical of genuine amnesia. Nor is complete
amnesia for a violent act such as a homicide typical.
3. The relationship of substance use to claimed amnesia. As we noted earlier, alcohol and certain sedative
drugs are known to produce at least partial blackouts when consumed in particular patterns, amounts, and
circumstances. Does the defendant’s actual consumption pattern fit with the claimed pattern and duration of
memory loss?
4. Offense planning. Planning and rehearsing an action should improve recollection of behavior, which
implies that actions taken that require some advance planning (e.g., robberies) are unlikely to be forgotten
later.
5. Independent information sources. An examiner should look at records and observations made
contemporaneously with or shortly after the alleged offense for clues about the defendant’s mental state. Do
these, for example, contain information about possible intoxication? What did witnesses say about the
defendant’s actions? What about the defendant’s own statements and explanations close to the time of the
offense?
6. Testing. Although no psychological tests speak directly to malingered impairment of
autobiographical/episodic memory, symptom validity measures and detailed neuropsychological evaluation can
sometimes disclose suspicious patterns of current functioning that can justify inferences about the genuineness
of claimed amnesia for the alleged offense.

Two other techniques that purportedly “recover” memories—hypnosis and “narcoanalysis”—might be

considered by forensic examiners, but both are problematic. Use of hypnosis as an investigative and treatment
method began in the 18th century. Although the mechanisms that underlie the therapeutic effectiveness of
hypnosis are not fully understood, hypnotic therapies all rely on inducing “[a] state of consciousness involving
focused attention and reduced peripheral awareness characterized by an enhanced capacity for response to
suggestion.”63 In the 21st century, mental health professionals use hypnosis to aid in smoking cessation64 and
to treat a variety of medical conditions, including phobias and other anxiety disorders,65 pain,66 irritable bowel
syndrome,67 and certain skin disorders.68

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 “Narcoanalysis,” a term coined by British psychiatrist J. Stephen Horsley,69 refers to a medical procedure
involving administration of intravenous sedatives to facilitate hypnosis. First described in the 1930s, this
procedure was once believed “to draw forth the concealed contents of a person’s mind and compel him or her
to reveal those contents,” yielding “accurate, true-to-life memories that have been stored in the brain”—a
notion linked closely to colloquial use of the phrase “truth serum” to refer to the barbiturates used in the
procedure.70 Discussions about intravenous injections of sedative drugs (e.g., benzodiazepines such as
lorazepam [Ativan and others] or diazepam [Valium and others]) still appear occasionally in case reports on
treatment of amnesia.71
Hypnosis and sedative injections have been used as forensic investigation methods in the belief that they
could facilitate accurate recall by otherwise amnestic litigants. However, we do not recommend relying on
such techniques—in part because, as discussed later in this chapter [§ 3.07], these methods are not favored by
courts, but primarily because they are likely to produce compromised information. As Scott explains:

Memories recovered under hypnosis are vulnerable to suggestion. Although witnesses may recover more correct information while
hypnotized, they also provide more incorrect information. Neither examiners nor examinees have shown an ability to distinguish true versus
false recovered memories. . . . Likewise, proposed “truth-serums,” such as Amytal or sodium pentothal, should be avoided, because these
drugs have shown a memory-distorting effect, including confabulations and reporting fantasies as actual memory.72

3.06. ASSESSMENT OF RESPONSE STYLE

CASE STUDY 3.1

Mr. Stanley has brought a personal injury claim against a grocery store for injuries he allegedly sustained after slipping on a banana peel in
the store. He claims that the fall injured his back. He has since withdrawn from his job as a plumber, claiming an inability to work while
bending over. His attorney has arranged for you to evaluate Mr. Stanley, because he also reports having been severely depressed since
leaving his job. The attorney is interested primarily in the extent of Mr. Stanley’s present depression. Within minutes of entering your
office, Mr. Stanley starts crying and tells you that he cannot talk because of his depression. After letting him cry for a few moments, you ask
him if he is ready to talk, at which point he dries his eyes and says, “Yes.” He then describes the accident matter-of-factly.

Questions: At this point, how might you investigate Mr. Stanley’s report of depression? What questions might you ask? What tests, if
any, might you administer? What third-party information would you want?

In treatment settings, patients who are not involved in any litigation may unconsciously distort the
information they provide to clinicians. But they have little incentive to practice conscious deception and
manipulation, if only because such actions may undermine accurate assessment and frustrate their treatment.
In contrast, as noted in § 3.02, the typical forensic examinee has much to gain from a particular finding or
formulation of the case, and a large fraction of forensic examinees manipulate their presentation.73 The
response style they adopt, of course, is largely dependent on the legal and evaluation context. An examinee
may fabricate or exaggerate symptoms or other impairments—a response style often referred to as
“malingering”—to avoid or reduce criminal sanctions (e.g., capital sentencing) or to obtain remuneration (e.g.,
disability evaluations or personal injury claims). In contrast, in evaluation contexts where absence of mental
illness would preserve rights or get them restored (e.g., guardianship or conservatorship proceedings, child
custody proceedings, civil commitment proceedings, parole hearings), examinees may deny or minimize their
emotional, behavioral, or cognitive impairments—a response style that may be described as “defensive” or

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“disavowing.”
Rogers described at least five different response styles that forensic examiners may encounter
(“honest/candid,” “exaggerated/fabricated,” “denying/minimizing,” “irrelevant,” and “hybrid”), and concluded
that hybrid responses (i.e., a combination or two or more of the first four response styles) are most common.74
For example, a defendant in a capital sentencing context may exaggerate and fabricate some problems (e.g., a
history of abuse, the presence and severity of psychiatric symptoms at and around the time of the murder)
while minimizing others (e.g., psychopathic tendencies or previous crimes that might have gone undetected).
Or a litigant in a workers’ compensation suit may be candid about some events, claim a limited memory for
others, purposefully manipulate accounts of some symptoms (via exaggeration, fabrication, denial, or
minimization), and make still other statements that reflect unconscious motives (e.g., gratification from being
categorized as ill).
This potential for impression management by examinees, combined with the limited abilities of
psychologists and psychiatrists, are strong reasons favoring cautious and conservative decisionmaking and
opinion development in most forensic assessments. Examiners should not assume that their clinical
impressions or results of psychological testing or instruments aimed at detecting malingering will accurately
identify the response styles of examinees. Commentators have raised especially well-founded concerns about
the validity of examiners’ unstructured assessments of response style.75 Moreover, examinees who want to
learn about how to present themselves in examination contexts can learn much from libraries and the
Internet,76 and many forensic examinees come to the consultation room after considerable discussion with
counsel about the evaluation process.77
Given the significant potential for deception and the implications for the validity of their findings, mental
health professionals should have a low threshold for suspecting less-than-candid responding. At the same
time, given the limitations of science referenced above, and the weight that labels used to describe response
styles (e.g., “malingerer,” “faker”) carry with legal decisionmakers, the examiner should make sure that
conclusions about an examinee’s response style have a sound foundation. Thus the forensic examiner should
combine a low threshold for suspecting dissimulation with a cautious stance about reaching conclusions on
that issue.

(a) General Strategies for Detecting Feigning of Symptoms

A number of strategies are available for systematically investigating response style. The most common and
venerable method is the clinical interview, usually consisting of a mental status examination or other relatively
unstructured interview procedure. The cues and indicators of exaggeration or fabrication of mental symptoms
that experienced interviewers look for have developed over decades of clinical experience78 and involve
comparing scientific knowledge about the typical presentation, symptoms, and course of various mental
disorders with examinees’ reports about their problems and their behavior during the evaluation.79 A problem
with this approach is that it is difficult to quantify how accurately it works, and accuracy varies substantially
among clinicians. For this reason, forensic examiners increasingly use structured interviews designed to detect
particular symptoms and other tools specifically designed to detect exaggeration or fabrication. A third
technique is the judicious interpretation of traditional psychological tests, including particular scales on those

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tests, to detect dissimulation.
Finally, having independent, reliable third-party observations is one of the most useful means of assessing
response style. Indeed, information that contradicts an examinee’s descriptions of problems may well be the
best ways of demonstrating exaggeration, fabrication, or denial, and may be the only viable one with
examinees who are highly invested in sabotaging interview and testing efforts. In particular, forensic clinicians
may use evidence from interviewing, testing, or other sources (e.g., documents or surveillance data that is
incongruent with the examinees’ self-report or presentation) to confront examinees with questions about their
response style and approach to the assessment process. Little is lost if an examinee does not confess to
dissimulation, but much is gained if the examinee admits to misrepresenting symptoms or problems.
Whatever the limitations of the interview or testing data that gave rise to the concerns, the examinee’s
admission is a compelling piece of clinical information that brings closure to the issue. If such a confrontation
is handled tactfully, the clinician may now have a relieved, cooperative, and candid respondent with whom to
discuss remaining issues in the forensic referral.
While the use of third-party information to detect dissimulation probably needs no further elaboration,
below we discuss in somewhat more detail the use of the other three approaches (structured interviews,
instruments designed to detect fabrication, and traditional psychological tests), in connection with discerning
feigned psychosis, intellectual deficits, depression, anxiety, and guardedness or minimization.

(b) Assessment of Feigned Psychosis

Rogers identified several indicators of exaggeration or fabrication of serious mental disorder that might be
detected during an interview.80 These include the following:

An overplayed and dramatic presentation, including such features as theatrical style, eagerness to discuss
symptoms or impairments, reports of extreme symptom severity, and indiscriminate endorsement of
symptoms.
Deliberateness and carefulness, including such features as slower rate of speech, extensive use of qualifiers,
more hesitations, and repeating of interviewer questions.
Inconsistency with psychiatric diagnosis or clinical functioning, including report of rapid onset and
resolution of symptoms, and report of rare symptoms or unusual symptom combinations.
Inconsistency of self-report, including report of contradictory symptoms and disparity between reported and
observed symptomatology and functioning.
Claims of obvious, blatant symptoms, including reports of hallucinations and delusional ideas in the
absence of altered thought patterns and “negative” symptoms (such as paucity of speech and impoverished
affect).

Experienced forensic clinicians develop their own interview questions to look for these kinds of cues. For
example, persons who appear all too ready to claim or acknowledge a wide range of positive or dramatic
symptoms may be enticed by inquiries about exotic symptoms or ludicrous symptom combinations, such as
“When you hear voices, do you also experience slight dizziness and the sudden smell of hamburger?” As
another example, Schacter suggested that defendants who claim amnesia for a particular event be asked

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whether they feel they could remember the incident with sufficient prodding; his research suggests that
simulators are more likely to deny a “feeling of knowing” than those who truly cannot remember.81 When
examinees fall into one or more of these interviewing traps laid by the clinician, a diagnosis of malingering
may follow.
However, this approach to detecting feigned impairment has limited utility. Because the specific questions
examiners employ vary, clinicians have few to no systematically gathered data (e.g., explicit norms) to facilitate
an objective interpretation of examinees’ responses. A clinician’s basis for concluding that an examinee is
malingering may merely be “clinical experience,” which is subject to a number of biases in judgment and
memory. Research indicates that the accuracy of clinical judgments of malingering is not impressive.82
Increasingly, mental health professionals have concluded that because interview-based approaches to detecting
malingering are of such limited utility, “employment of instruments specifically designed for this purpose
should be considered the standard of practice whenever there is a basis for suspecting overreporting of
symptoms.”83
In this regard, one psychological assessment instrument that has received considerable praise is the
Structured Interview of Reported Symptoms (SIRS), published originally in 1992 and now in its second
edition (SIRS-2).84 Both versions conduct the test administrator through a 172-item structured interview that
yields scores on several scales, each representing different strategies to detect feigned symptoms of serious
mental disorders.85 The primary scales contain items that permit more systematic exploration of the various
malingering strategies found in Rogers’s survey of the literature (summarized above). For example, one scale
(RS) records an examinee’s endorsement of rare symptoms that do not often occur even in truly psychotic
individuals; another scale (IA) captures the reporting of improbable or absurd symptoms; yet another scale
(SU) is sensitive to the overreporting of everyday problems that are not indicative of a major psychiatric
disorder.
Rogers and his colleagues have investigated the capacity of the SIRS to detect malingering in a series of
studies that have included so-called “simulation” and “known-group” designs.86 The original studies
conducted to validate the SIRS showed that its scores could detect known87 or simulated88 malingerers
without mislabeling “honest” responders as feigners. Rogers and colleagues also published studies showing
that the SIRS did well even when the feigning subjects received information about the detection strategies
employed in the test89 or were psychologically knowledgeable about specific disorders to be feigned.90
The original research on the SIRS has also consistently reported respectable indices of sensitivity91 and
specificity,92 although investigators who completed a meta-analysis of research on the SIRS expressed
concerns about lower specificity rates in later research.93 In response to concerns about its specificity, Rogers
and his colleagues revised the SIRS scoring and classification rubrics via publication of the SIRS-2 (while not
changing the instrument’s item content). However, at least two publications raise concerns about the accuracy
of the revised scoring system and information presented in the SIRS-2 manual.94
Despite these and other concerns about its research base,95 the SIRS/SIRS-2 deserves serious
consideration by forensic clinicians who want to evaluate the genuineness of reported symptoms of severe
mental illness. The structured nature and objective scoring of the SIRS make it superior to clinical assessment
of response styles. While other screening measures show some promise,96 the SIRS remains the most praised
and best-validated measure with respect to this type of assessment.

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 Some commentators have suggested that projective tests such as the Rorschach Inkblot Technique and the
TAT [see Table 3.3], because of their more ambiguous nature, show some potential in identifying persons
feigning psychotic-spectrum symptoms (as well as symptoms of other disorders). Research, however, indicates
that these claims are not well founded,97 a conclusion that, in conjunction with the ongoing debate about the
validity and value of projective approaches,98 raises serious questions about the use of such measures in
forensic evaluation contexts.
Among traditional measures of psychopathology and behavior, the instrument most extensively researched
and widely used in the assessment of dissimulation is the MMPI/MMPI-2/MMPI-2-RF [see Table 3.3].99
Potential indices of dissimulation on the MMPI/MMPI-2/MMPI-2-RF include several response style scales
and indices (L, F, K; F-K index; Fb, Fp, F-r, VRIN, TRIN, Ds, Ds-R, Md, Mp, FBS, RBS). Greene has cautioned
against the overinterpretation of these indicators, warning that “[i]t is not necessary to use several of these
scales/indexes simultaneously since they are correlated highly and consequently are very redundant.”100 With
this caveat, the MMPI/MMPI-2/MMPI-2-RF appears to have the most empirical support among
conventional psychological tests for use in the assessment of malingered psychopathology.
Finally, note must be made of two other psychological tests are sometimes suggested as means of detecting
dissimulation of serious mental illness. The PAI [again, see Table 3.3], like the MMPI-2, is a structured self-
report measure of psychopathology and behavioral functioning.101 Like the MMPI-2, the PAI has standard
response style scales as well as specially designed response style indices. Although the classification utility of
the PAI scales has not been investigated as closely as that of their MMPI-2 counterparts, research to date is
promising.102 In contrast, the response style scales of the MCMI-IV and its predecessors (the MCMI-II and
-III) have not been examined in much research, and the research that has been conducted has been
discouraging.103

(c) Assessment of Feigned Intellectual Impairment

One might assume that detection of feigned cognitive impairment would rely primarily on intelligence tests.
But a review by Schretlen revealed that much of the research on the usefulness of such tests for this purpose is
dated and focused on instruments not currently in wide use.104 Furthermore, Schretlen found that even the
more popular contemporary intelligence tests [see Table 3.3] are not well adapted to the kind of “scatter
analysis” that has been the best indicator of malingering.105 Thus Schretlen’s review offers little support for
the use of intelligence tests in assessing malingered cognitive impairment. Similar in conclusion is Rogers and
colleagues’ review of several studies in which skilled clinicians have attempted to detect malingering of
cognitive deficits by using intelligence tests, or a combination of those tests with neuropsychological tests and
other clinical protocols. In most of these studies as well, clinicians performed poorly (even below chance in
some cases).106
Sweet has identified six circumstances that should raise questions about response styles of examinees
undergoing neuropsychological evaluations in forensic contexts;107 many of these are analogous to the
strategies identified by Rogers in connection with assessing the validity of claims of thought disorder.
Examiners should be alert for (1) insufficient effort on CAIs of intelligence, memory, and other cognitive
abilities (i.e., an examinee obtains a score on a measure that is below what would be expected even of impaired

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persons); (2) insufficient effort on FRIs that were designed to assess response style in forensic contexts (i.e.,
the examinee obtains a score on a measure that is below chance, or is below what would be expected even of
impaired persons); (3) “nonsensical,” rare, or unique responses not typically associated with known
neuropsychological or cognitive impairment (e.g., the examinee reports limitations or experiences that could
not result from the reported or claimed injury); (4) inconsistent responding across tests that assess related
aspects of cognitive functioning (e.g., the examinee obtains divergent scores on highly correlated measure of
memory, intelligence, or other cognitive functioning); (5) observed inconsistency between test performance
and real-life adaptive behaviors (e.g., test scores on measures of intellect, problem solving, or memory indicate
very low functioning, yet the examinee exercises higher capabilities in day-to-day life tasks); and (6)
inconsistencies in how deficits affect different areas of life (e.g., the examinee reports intellectual, memory, or
cognitive impairments that limit his or her ability to work but have no effect on enjoyable activities, such as
traveling and engaging in recreational activities). Although several of these strategies have shown promise in
isolated studies, few are systematically used in commonly employed measures for detecting feigned cognitive
deficits.
In the past 30 years, however, several measures have been expressly designed to assess examinees’ response
styles and effort during assessments of neuropsychological and cognitive functioning. These measures—which
include the Test of Memory Malingering (TOMM), the Victoria Symptom Validity Test, the Validity
Indicator Profile (VIP), and the Word Memory Test (WMT)—can be administered in conjunction with and
compared to the results of CAIs (e.g., measures of intelligence or memory). These specialized measures
typically rely on two approaches with respect to assessing an examinee’s response style. First, the instruments
employ a two-alternative forced-choice design that allows identification of “worse than chance” performance,
which is strongly indicative of efforts to appear more impaired than is actually the case. In addition, these tests
contain scales that allow evaluators to compare the performance of examinees with the performance of persons
who have conditions that are known to produce cognitive impairment, but who have no motivation to
exaggerate their impairment. Test scores significantly below those obtained by impaired persons are indicative
of attempts to appear more impaired than is actually the case.

(d) Assessment of Feigned Anxiety and Depression

Assessment of the response styles of persons reporting symptoms of anxiety and depression is challenging.
Few tests that assess symptoms of anxiety and depression have embedded within them measures of response
style, and research indicates that those that do (such as the MMPI-2/MMPI-2-RF and PAI) are not
particularly good at identifying exaggerated or fabricated symptoms of anxiety and depression.108 These
findings may be due in part to the fact that such test takers have probably experienced some actual anxiety or
depression in their lives, which is often untrue of examinees who want to feign symptoms of psychosis or
cognitive impairment.109 Not surprisingly, research suggests that feigners are more likely to be successful
when they rely on past experience in simulating symptoms.110

(e) Assessment of Denial, Disavowal, Guardedness, and Minimization

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Assessment of examinee guardedness and defensiveness has received considerably less attention than
assessment of feigned psychopathology and cognitive impairment. Although mental health publications
largely agree in their depictions and descriptions of feigned mental problems, the professional literature offers
no such consensus on the characteristics, behaviors, or styles of examinees who are guarded, minimizing, or
defensive in their presentations. Similarly, in comparison to the large number of free-standing measures of
feigned psychiatric symptoms and cognitive impairment, few measures of guardedness and defensiveness have
been developed, and existing measures have not been subjected to significant validation research.111
Omnibus measures of psychopathology and personality (e.g., the MMPI-2/MMPI-2-RF, PAI, and
MCMI-II/MCMI-III/MCMI-IV) have a number of response scales embedded within them that are
designed to identify examinees who deny or minimize psychopathology or present themselves as having
positive attributes. But these are of limited utility. The L and S scales of the MMPI-2 and MMPI-2-RF are
designed to identify persons motivated to portray themselves as having positive attributes, and a variety of
other scales and indices (e.g., K, F-K, O-S, Mp, Sd) are thought to be of some value in identifying persons
motivated to deny and minimize problem behaviors or experiences. Yet available research recommends that
evaluators use different cutoff scores for the scales with different populations. In his review of MMPI-2
measures of response style, Greene also noted research finding low intercorrelations between the scales that
measure defensiveness and guardedness, and suggested that they thus may measure different phenomena.112
Even less research has examined the performance of the PAI’s scales and indices of
guardedness/defensiveness, and the results are only modestly encouraging.113 Finally, the small amount of
research examining the classification of the response style scales of the MCMI-II/MCMI-III/MCMI-IV
offers little ground for optimism.114

(f) Summary

In conclusion, clinicians should be cautious about their use of psychological tests to assess response style, and
very cautious about drawing conclusions about response style based on their clinical judgment. With respect to
omnibus measures of psychopathology and personality, use of the MMPI-2/MMPI-2-RF and PAI appears
warranted in some circumstances. In contrast, the limited and discouraging research examining the utility of
the response style scales of the MCMI-II/MCMI-III/MCMI-IV indicates that this measure is of little value
for detecting feigning. Measures specifically aimed at assessing response style (e.g., the SIRS/SIRS-2,
TOMM, WMT, and VIP) are more likely to be appropriate, but only if their use is tailored to the referral
question. For example, the SIRS/SIRS-2 may have little value in a forensic examination where the reported
complaints revolve around intellectual and memory impairment rather than symptoms of severe mental illness,
whereas the TOMM, VIP, or WMT may be very helpful. Conversely, questions regarding the forensic
examinee’s report of psychotic-spectrum symptoms may properly trigger use of the SIRS/SIRS-2 or M-FAST
(see Table 3.3), whereas the TOMM, VIP, and WMT may well be useless in this circumstance.
Many experienced clinicians advocate the use of a battery of tests of different types as an approach to
overcoming the limitations associated with any one test. This approach is theoretically sound, and some
research supports its potential value.115 However, these studies used a combination of experimental and
conventional testing indices, and relied on strictly statistical (as opposed to clinical) interpretations to attain

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their results. To our knowledge, no study shows that clinicians, using clinical interpretations of combinations
of tests, have demonstrated extraordinary ability to identify people feigning impairment. Moreover, examiners
should be cautious about using highly correlated scales or measures of response style, because doing so might
increase the examiners’ confidence while actually decreasing classification accuracy.116 Yet researchers
continue to look for potential combinations of indices or scores from multiple measures of response style that
would improve identification of feigned impairment.117
Other caveats are also important. First, because they do not provide information about why an examinee
might be feigning symptoms, even the best measures of symptom exaggeration/fabrication are not measures of
“malingering”—a descriptor (not a diagnosis or condition) that, according to DSM-5, reflects efforts to feign
illness or impairment to achieve some external goal (e.g., avoid criminal prosecution, obtain disability
benefits). Second, given the limitations of existing assessment approaches, examiners should be cautious in
their descriptions of examinees’ response styles and recognize the potential for error. Third, examiners should
not make the fundamental error of assuming that evidence of symptom exaggeration indicates the absence of
genuine impairment, because some persons who exaggerate and fabricate difficulties also have real problems.
Relatedly, one cannot conclude that all accounts offered by a person who is less than candid in his or her
response style are inaccurate in some way. Conversely, an examiner should not assume that simply because an
examinee has a well-documented record of symptoms or impairment, all of the problems reported by the
examinee during a forensic examination are genuine.

3.07. CHALLENGES TO THE BASIS OF EXPERT TESTIMONY

As this chapter has explained, mental health professionals should base their expert testimony on multiple
sources of information. Suppose an expert bases an opinion about insanity on a clinical interview of the
defendant, a diary that police seized from the defendant’s home, psychological test data, interviews of the
defendant’s family members, arrest reports, medical records, and the results of a polygraph test or
narcoanalysis. It may be that, given common practice in the jurisdiction, the other side will not object to these
various bases for the testimony. However, if in doubt on this score, the wise attorney should seek, prior to
trial, either a stipulation from opposing counsel or a judicial determination that the opinion and its
foundations are admissible. In practice, perhaps only opinions based on polygraph testing will give rise to
serious challenge, but the law provides grounds for attacking the admissibility of any of these sources of
information and the opinions based on the sources.
The legal bases for such challenges are diverse. The results of a clinical interview might be tainted if the
defendant’s Fifth Amendment rights were not honored [see § 4.02]. The diary might be “suppressed” if it was
seized illegally [see §§ 2.04(a)(1), 7.02]. Psychological testing the expert employed might be considered
irrelevant [see § 3.03(a)]. The family interviews and the police and medical records might be challenged as
inadmissible “hearsay” [see below]. And the polygraph and narcoanalysis results could be challenged either
under the Frye test (which bars testimony unless the technique or theory on which it is based “is sufficiently
established to have gained general acceptance in the particular field in which it belongs”), or under Daubert
and Federal Rule of Evidence 702 (which prohibit testimony based on evidence that is “unhelpful,” in light of
its low probative value, error rate, lack of general acceptance, and other factors) [see § 1.04(c)].118

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 (a) General Rules

If any of these challenges is successful, is an expert opinion based on such information also rendered
inadmissible? In the federal courts, Rule of Evidence 703 answers this question, stating that facts or data
underlying an expert opinion “need not be admissible in evidence” if “of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the subject.” Although this language is
similar to that in Frye, Rule 703 focuses on whether it is “reasonable” to rely on certain information, not
whether doing so is “generally accepted”; further, it is meant to deal with situations involving any type of
information, not just scientific information. Many states have adopted a version of Rule 703 as well. In
contrast, however, some states do not permit expert testimony unless its basis is independently admissible.119
In these latter jurisdictions, if any particular information source is inadmissible, the expert’s opinion testimony
may be barred unless the inadmissible information is considered merely corroborative.
One further complication must also be noted. Most courts that permit an opinion under Rule 703 analysis
would allow the expert not only to voice the opinion, but also to explain its entire basis so long as it is
“reasonably relied upon.”120 But other courts, although allowing the opinion, prohibit informing the jury
about any data that are not independently admissible.121 The Federal Rules of Evidence take a third,
compromise position. Rule 703 states that expert opinions may rely on inadmissible information, but then
cautions that “[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that their probative value in assisting the
jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect” [see § 1.04(c)].
For ethical (if not legal) reasons, the second position described above is problematic. A forensic examiner
may feel uncomfortable offering an opinion the basis of which cannot be explained [see § 1.04(a)]. Nor should
the law allow unexplained opinions to be given, because this maneuver “usurps” the jury’s credibility
assessment role. Thus, if the challenged information is important to the clinician’s opinion and the court
insists that it not be mentioned, the clinician may consider declining to testify [see § 4.05(b)(1)].
The same dilemma might occur under Rule 703 (the third, hybrid approach). Although that rule does not
bar description of inadmissible information, its requirement that the probative value of the information
substantially outweigh its prejudicial impact will often lead to its exclusion. Ideally, instead, the prejudicial
nature of the expert’s facts could be exposed through cross-examination. If the judge decides otherwise, the
clinician will have to determine whether the expert can adequately explain the opinion without the excluded
information.

(b) Hearsay

Although the issues just discussed can arise in connection with forensic reliance on any clinical technique—
ranging from projective tests to syndrome or profile analysis—this discussion focuses on hearsay as a basis for
clinical testimony, since clinicians frequently rely on this type of information, and the law governing such
reliance is nuanced. “Hearsay” is simply an out-of-court statement sought to be used in a trial or similar
proceeding to prove the truth of the matter asserted in the statement. Thus statements obtained from the
subject’s family, the police, or the examiner’s colleagues who have assisted in the evaluation are usually

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hearsay. A hearsay statement is generally not admissible, because its reliability (i.e., accuracy) cannot be
assessed through cross-examination of the declarant at the time the statement is made; without cross-
examination, it is assumed, the declarant’s motives, biases and opportunity to observe the relevant facts cannot
be reliably ascertained.
However, there are several exceptions to the hearsay rule, normally applying in situations in which the
hearsay is considered reliable despite its out-of-court nature, or when it is the only available evidence. Based
on the idea that parties have an incentive to avoid erroneous statements against their own interest, a
prominent exception is the “party admission” exception, which admits statements made by a criminal
defendant or a party to a civil lawsuit;122 analogously, declarations against interest, made by individuals who
are not parties and are not available at trial (because they are dead, out of the jurisdiction, or asserting the
right to remain silent), are admissible.123 Testimony given at a preliminary hearing, where the out-of-court
declarant can be cross-examined, will also generally be admissible,124 whereas testimony given at a grand jury
proceeding usually will not be, because in the latter case there has been no opportunity for cross-
examination.125
Hearsay statements found in official, commercial, and medical records are also admissible, if they are of the
type routinely recorded in such records (sometimes called the “business records” exception to the hearsay rule,
to connote records considered reliable because kept in the ordinary course of business). Thus statements in a
hospital record from a patient or about a patient that relate to the patient’s condition are probably admissible.
But statements by a patient about how her husband constantly beat her would probably not be.126 One other
important caveat to the business records rule is that the prosecution may not use hearsay statements found in
law enforcement records against a criminal defendant. This rule originated out of concern that police may be
biased against the accused; as discussed further below, it now also is required as a means of implementing the
accused’s constitutional right to confront accusers.
As this brief and incomplete survey of the hearsay rules makes clear, some of the standard hearsay
information that mental health professionals use, refer to, and rely upon in court will be independently
admissible, but at least some types of information (e.g., statements from family members, statements
unrelated to treatment that are included in treatment records, statements in police reports used against a
defendant) may not be. In the latter situation, most trial courts allow the expert to testify in any event, either
under Rule 703 or simply because the judge and the parties have not given the situation any thought. It has
been argued, however, that Rule 703’s “reasonable reliance” language should be narrowly construed to permit
the clinician to report only those hearsay statements the validity of which can be demonstrated (e.g., through a
hearsay exception, or through in-court cross-examination of the declarant about the out-of-court
statement).127 According to this view, the jury should not have to judge the credibility of an unavailable
source based solely on what the expert witness says.
Indeed, recent legal decisions construing the “confrontation clause” of the Sixth Amendment may require
such a result in criminal cases. The confrontation clause guarantees the accused person the right to “be
confronted with the witnesses against him.” In Crawford v. Washington,128 the United States Supreme Court
held that this language prohibits the government from introducing any out-of-court statements that were not
subject to cross-examination at the time they were made and are “testimonial” in nature—a term the Court
stated included any declaration “made for the purpose of establishing or proving some fact.”129 New York

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courts have since held that this concept encompasses statements made by a third party during a forensic
evaluation conducted by the state.130 Under this holding, if prosecution-retained examiners solicit information
from a third party and intend to rely on that information at trial, the prosecutor must either (1) ensure that
the third party testifies; (2) show that the third party is unavailable and that the defendant had an opportunity
to cross-examine the third party at some earlier proceeding; or (3) obtain from the defense a waiver of
confrontation rights.
Even outside the criminal setting, one can make a strong argument that everyone who is a significant
source of information for the forensic evaluator should be required to testify in court, including, for instance,
all members of an evaluation team who have conducted independent components of the evaluation. A number
of courts have so held, at least in civil proceedings (e.g., “sexually violent predator” hearings) that are similar to
criminal trials.131 In contrast, in those situations in which the hearsay data are trivial or unlikely to be
contested, or when they are significant but the source is practically unavailable,132 a strict rule seems
counterproductive. In any event, forensic examiners, aided by the lawyers who retain them, should be prepared
to explain why sources they have relied on are not available, and why they nonetheless feel comfortable in
relying upon them. This is a rule that should be followed with respect to any other sources—from test results
to novel theories—that form the basis for a clinical opinion.

3.08. CONCLUSION

Moving from therapeutic to forensic work requires several adjustments in attitude and technique. In forensic
evaluations, treatment usually is a secondary consideration; subjects are less likely to be cooperative and
candid; considering data sources beyond what the subject says is more likely to be necessary; and
“conventional” interview and testing techniques are less likely to be useful. Also, sources that a clinician finds
forensically helpful (e.g., third-party statements, hypnotic interviews, and profile information) may be
anathema to a legal system worried about unreliable information, and thus may legally taint the resulting
clinical opinion. The clinician who fails to recognize the need for these adjustments or neglects to make them
will be of limited aid to a legal system that, as the next chapter makes even clearer, is the forensic clinician’s
ultimate client.

BIBLIOGRAPHY

CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION (Richard Rogers ed., 4th ed. 2017).
EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (Thomas Grisso ed., 2d ed. 2003).
DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY chs. 11, 18, 38 (2016–2017
ed.)
FORENSIC MENTAL HEALTH ASSESSMENT: A CASEBOOK (Kirk Heilbrun et al. eds., 2d ed. 2011).
FORENSIC USES OF CLINICAL ASSESSMENT INSTRUMENTS (Robert Archers & Elizabeth M. A. Wheeler eds., 2013).
Kirk Heilbrun et al., Third Party Information in Forensic Assessment, in FORENSIC PSYCHOLOGY (Alan Goldstein ed., 2003).
KIRK HEILBRUN, THOMAS GRISSO & ALAN GOLDSTEIN, FOUNDATIONS OF FORENSIC MENTAL HEALTH ASSESSMENT (2008).
MCCORMICK ON EVIDENCE § 15 (6th ed. 2006) (admissibility of opinion based on inadmissible evidence).
Randy Otto, Christopher Slobogin & Stuart Greenberg., Legal and Ethical Issues in Accessing Third Party Information, in 2 FORENSIC
PSYCHOLOGY (Alan Goldstein ed., 2007).

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CHAPTER 4

Constitutional, Common-Law, and Ethical Contours of the

Evaluation Process
The Mental Health Professional as Double Agent

4.01. INTRODUCTION

Mental health professionals who perform evaluations for courts and lawyers who rely on them must be aware
of constitutional, common-law, and ethical principles that affect how forensic assessments are conducted. The
first two sections of this chapter discuss when an accused examinee has a Fifth Amendment right to remain
silent during the evaluation or to prevent state use of its results, and how the Sixth Amendment’s right to
counsel applies to forensic psychological and psychiatric assessment. The third section addresses the common-
law and statutory duties the examiner owes to the examinee, the court, and society at large. Here, the focus is
on privilege and confidentiality; the somewhat opposed “Tarasoff duty” to take preventive measures when an
examinee presents a risk of harm to others; and the doctrines of informed consent and negligent misdiagnosis.
The final section of the chapter examines several ethical issues that are closely related to many of these legal
doctrines, but that stem from the mental health professions’ own attempts to regulate their evaluation
practices.
In discussing the often controversial issues covered in this chapter, we take the view that whenever possible,
legal and ethical principles should be formulated to facilitate the interchange between the examiner and
examinee. Unfortunately, because these principles make complex and sometimes conflicting demands on
examiners, it is impossible to develop an entirely consistent approach to many problems that arise during
evaluations. This chapter therefore aims to provide answers when they seem clear and to present the available
alternatives when (as is frequently the case) the answers seem less than obvious.

CASE STUDY 4.1

Suppose that you are a psychiatrist ordered by the court, upon motion of the prosecutor, to evaluate the competence to proceed of a criminal
defendant. When you arrive at the jail to interview the man, he seems very disturbed and agitated. After you identify yourself and explain
the purpose of the interview, he blurts out that he is charged with murder, that his brother was also involved in the crime, and that he would
have killed the victim’s sister as well if he had the chance. He also says that he threw the murder weapon in a pond, because he did so the last
time he killed someone and was never caught. When you are finally successful in stopping his tirade, you ask if he has seen a defense
attorney, to which the answer is no.

Questions: Should you refuse to evaluate the defendant further, despite the court order, until an attorney has been appointed? Should
you have told the defendant as soon as he began to talk that he has a “right to remain silent” and that anything he says could be used against
him? You have heard the man incriminate himself in connection with two offenses, incriminate his brother in the more recent of the two,
and express his intention to kill a third person. You have also heard him tell you where to find the murder weapon for the more recent
offense. Are you obligated to disclose any or all of this information to someone—and if so, to whom, and when (now, or at some later time)?

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Are you prohibited from disclosing any or all of this information? Are you at risk for a successful malpractice or licensing action if you do
not disclose this information and the defendant avoids conviction on the murder charges or harms the victim’s sister or someone else? If you
do reveal the information, could an allegation that you wrongfully breached confidentiality result in a successful malpractice action?
Suppose instead that you are the lawyer appointed (somewhat tardily) to represent the defendant, and that, based on an opinion from
another mental health professional, you formally assert to the court that your client is incompetent to proceed and was insane at the time of
the offense. Can you prevent the psychiatrist described earlier from disclosing what he or she knows to the prosecution, or at least keep the
prosecution from using this information at the competence hearing or trial? If you have hired other mental health professionals to evaluate
your client but found their opinions unfavorable, can you “muzzle” them and prevent them from testifying? Finally, can you prevent the
state (which to date has sought only a competence evaluation) from obtaining an evaluation on the insanity issue? If not, can you at least sit
in on, and ask questions during, the prosecution’s evaluation of your client’s mental state at the time of the offense?

4.02. THE FIFTH AMENDMENT AND THE RIGHT TO REMAIN SILENT

The principle behind the Fifth Amendment’s privilege against “self-incrimination” is that persons accused of
crimes should not be forced to provide evidence against themselves; the state should have to prove its cases on
its own, without bringing its formidable power to bear on those it seeks to convict. Thus, as presently
construed by the United States Supreme Court, the Amendment prohibits the state from using at a criminal
trial any (1) “testimonial” evidence (2) of an “incriminating” nature (3) that was “compelled” from the
defendant being tried.1
The requirement of testimonial evidence comes from a long line of cases distinguishing between
“testimonial” (or “communicative”) evidence and “physical” (or “noncommunicative”) evidence. Physical
evidence does not fall within the scope of Fifth Amendment protection. To hold otherwise, pointed out
Justice Holmes in Holt v. United States, “would forbid a jury to look at a prisoner and compare his features
with a photograph in proof.”2 Using similar reasoning, the Supreme Court has held that the state may require
a defendant to submit to a blood test, give a writing sample, stand in a lineup, and try on articles of clothing,
even if these actions assist the state in securing a conviction.3
At one time, a few lower courts held that psychological and psychiatric evaluations did not implicate the
Fifth Amendment because the defendant’s disclosures during such evaluations are not relied on for their
content, but rather serve merely to identify emotional and behavioral characteristics of the accused, much as a
fingerprint measures certain physical characteristics. But the overwhelming majority of courts agreed with the
D.C. Court of Appeals that “the words of the accused are critically important in determining his mental
condition.”4 The Supreme Court appears to agree with this conclusion. In Estelle v. Smith5—the primary case
in which the Court has considered the application of the Fifth and Sixth Amendments to forensic mental
health evaluations, and therefore one that we refer to frequently throughout this and the following section—
the Court cited approvingly a statement from the American Psychiatric Association’s amicus brief that “absent
a defendant’s willingness to cooperate as to the verbal content of his communications a psychiatric
examination . . . would be meaningless.”6
It appears settled, then, that the disclosures typically made during forensic psychological and psychiatric
evaluations are testimonial rather than noncommunicative. When particular disclosures by the defendant are
“incriminating” is a more controversial topic, as is the question of whether such disclosures may be compelled
from the defendant and used at trial. To a great extent, the answers to these questions depend on the type of
evaluation at issue and how the results of the evaluation will be used. The following discussion examines these

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issues in connection with competence evaluations, evaluations of mental state at the time of the offense,
sentencing evaluations, quasi-criminal proceedings, and civil proceedings, and concludes with a discussion
about when a “Miranda warning” should be provided.

(a) Competence Evaluations

A criminal defendant may need to exercise several different types of legal competencies: competence to
proceed with trial, competence to plead guilty, competence to waive certain rights, and so forth. With a few
exceptions, a competence evaluation involves an assessment of the defendant’s present mental state rather than
his or her mental state at the time of the offense. Thus, at first glance, it may seem unlikely that anything
“incriminating” will be revealed during such assessments.
As Chapters 6 and 7 make clear, however, any comprehensive competence evaluation of a criminal
defendant, regardless of the specific competence in question, can include discussion of potentially
incriminating matters. In an evaluation of competence to proceed, for example, the clinician may ask what the
defendant recalls about events around the time of the offense as part of assessing how well the defendant can
assist counsel. Similarly, an examination of competence to plead guilty will probably involve asking questions
about the alleged offense to learn how well the defendant understands the implications of the plea.
As Case Study 4.1 illustrates, even without such direct questions, the defendant could easily divulge
information during a competence evaluation that proves “incriminating.” This is especially so, given the broad
scope of that term: The Supreme Court has held that any disclosure by the defendant is potentially self-
incriminating if it might “furnish a link in the chain of evidence needed to prosecute.”7 Thus not only outright
“confessions” but statements that provide investigative leads (e.g., “I threw the gun in the bushes” or “My wife
saw me do it”) implicate the Fifth Amendment.
Despite the possibility that a defendant will provide incriminating evidence during a competence
evaluation, every state permits the prosecution to compel the defendant to undergo such an evaluation upon
showing that the defendant’s competence is in question. Such coercion is justified on grounds that the
integrity of the criminal process requires knowing that the defendant understands what he or she is doing, and
that this societal interest overrides the defendant’s Fifth Amendment interest in remaining silent. In many
jurisdictions, a second justification, at least in the context of competence to proceed, is that statutory
provisions prohibit prosecutorial use of the evaluation results at trial, unless and until the defendant raises a
mental state defense.8 In these states, disclosures made during an evaluation of competence to proceed may be
used to inform judgments about the defendant’s competence (and perhaps sanity), but may not be used to
determine guilt. When there are no such statutory limitations (e.g., in the context of an evaluation of a
defendant’s competence to understand Fifth Amendment rights), defense attorneys can accomplish the same
result by inserting language in the court order to the effect that use of the results of the evaluation at any
subsequent trial is prohibited.
In Estelle v. Smith, the Supreme Court spoke approvingly of limiting use of competence evaluation results
in this way, at least when that is the only mental issue raised by the defense (as was the case in Estelle). In that
case, the prosecution-retained psychiatrist, Dr. Grigson, relied on the results of his court-ordered competence
evaluation not only to address Smith’s competence, but also to inform opinions about Smith’s sanity at trial

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and his violence risk at sentencing. The Supreme Court found that the lower court’s admission of the latter
testimony was unconstitutional, but noted that “if the application of [Grigson’s] findings had been confined to
serving that function [of determining the defendant’s competence], no Fifth Amendment issue would have
arisen.”9
Even assuming such statutory or court-ordered protection barring use of evaluation statements at trial, an
examiner should, whenever possible, avoid including summaries of or quotations from any statements by the
defendant that could constitute self-incrimination or could lead to the finding of incriminating evidence (e.g.,
the location of the murder weapon).10 Only rarely does this precaution require deletion of any information
relevant to adjudicative competence. The alternative—inclusion of confessions and other self-incriminating
information in the report—may lead to difficult-to-detect prosecutorial use of tidbits from forensic reports to
help make the state’s case.11
Based on this latter concern, Virginia provides by statute that “no statement of the defendant relating to
the time period of the alleged offense shall be included in the [competence] report.”12 This approach does not
prevent the examiner from including in the report an opinion about the defendant’s ability to recount events
that occurred around the time of the alleged offense. Nor does it prevent quoting from statements made by
others, such as eyewitnesses and police officers, because these are not self-incriminating and thus do not
implicate Fifth Amendment protections. The statute merely protects against prosecutorial discovery of
statements made by the defendant during a competence examination; it may have the added benefit of
encouraging the defendant to be forthright during the competence evaluation.
Of course, not all competence evaluations are conducted at the behest of the prosecution. If the defense
requests such an evaluation, one could argue that the defendant’s statements are not “compelled” and thus can
be used at trial. Nonetheless, states that bar the use of competence evaluation results on the issue of guilt do
not distinguish between prosecution- and defense-requested evaluations, thereby implicitly rejecting that
argument. According to the Supreme Court, however, the prosecution may use the results of a defense-
requested competence examination on any mental state issue raised by the defense without violating the Fifth
Amendment. In Buchanan v. Kentucky,13 the prosecution rebutted the defendant’s mental state defense at
trial with information contained in a report summarizing a competence and treatment evaluation the
prosecution and defense had jointly requested. The Supreme Court concluded that using the information in
this report did not violate the Constitution because, unlike in Estelle, the defendant had raised a mental state
defense and joined in the evaluation motion. The Court held, in effect, that by requesting a competence
evaluation, defendants forfeit their Fifth Amendment protection against use of examination results on any
mental state issues they subsequently raise. This holding was confirmed in Penry v. Johnson,14 where the
Court allowed the prosecution to introduce results of a competence evaluation requested solely by the defense
to rebut opinions offered by the defense-retained mental health expert at sentencing.
These cases obviously could have a chilling effect on defense evaluation requests and on the candor of
defendants undergoing evaluation, and thus may undermine full exploration of competence issues by the
defense. Indeed, perhaps because of these cases, some states provide that defendants need not answer
questions during a competence examination if they believe they will thereby be incriminated.15 We consider
such a rule short-sighted, because even under the Court’s decisions, the defendant and defense counsel still
control when the competence results may be used on mental state issues other than competence. Note further

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that Buchanan and Penry merely conclude that the Fifth Amendment does not bar the practices at issue in
those cases; local statutory rules may still do so.16

(b) Evaluations of Mental State at the Time of the Offense

Evaluating a defendant’s mental state at the time of the offense (MSO) requires a forensic examiner to ask
questions that could easily lead to incriminating disclosures [see Chapter 8]. A comprehensive evaluation on
issues of insanity, automatism, or diminished capacity necessitates detailed inquiry into the defendant’s
thoughts and actions surrounding the alleged offense(s). The Fifth Amendment thus imposes limitations on
when the state may compel an MSO evaluation and when the state may use the results of such an evaluation
(whether requested by the prosecution or the defense), and it may also limit when the state may obtain access
to the results of an evaluation.
On the first issue, some states, as well as the Federal Rules of Criminal Procedure, explicitly prohibit
compelled evaluations of defendants before they have formally indicated an intent to assert an MSO defense.17
Before such notice, not only has the Fifth Amendment not been waived, but the prosecution has no need for
the information. Yet in some jurisdictions, trial courts routinely add an order to evaluate mental state at the
time of the offense to an order to evaluate a defendant’s trial competence, even when the defendant has not
indicated an intent to raise an MSO defense. That practice, which most typically occurs with indigent
defendants who are dependent on state resources, is arguably unconstitutional unless the defendant knowingly
consents to it or unless (as discussed below) the results of the MSO evaluation are sealed pending notice by
defense counsel of an intent to raise such a defense.
On the other hand, the large majority of courts rightly impose sanctions on defendants who refuse to
cooperate with a state-retained or -requested evaluator once the defense gives notice of intent to raise an
MSO defense (as the lawyer does in Case Study 4.1).18 In Estelle v. Smith, the Supreme Court implicitly
condoned this practice on the ground that to permit a defendant to assert the right to remain silent after
giving notice “may deprive the state of the only effective means it has of controverting his proof on an issue
that he interjected into the case.”19 Just as a defendant may not take the stand to testify and then refuse to be
cross-examined, postnotice the defendant should not be able to avoid questioning by prosecution-retained
experts.
In the event that the defendant refuses to cooperate with such evaluations in the postnotice context, most
courts prohibit the defendant from presenting expert testimony.20 A second, less frequently utilized sanction
permits the defendant’s expert to take the stand, but allows the prosecutor to inform the jury that the
defendant refused to undergo evaluation by the state-retained expert.21 Just when the defendant deserves such
sanctions is a difficult issue that has yet to be resolved. Although refusal to meet with the state-retained
examiner might reflect a defendant’s attempt to manipulate the criminal justice system to his or her advantage,
some impaired defendants may be hostile to the evaluator for irrational reasons that have nothing to do with
the constitutional right to remain silent. Indeed, as one court put it, “The fact, amply demonstrated over the
years, is that a failure of a defendant . . . to cooperate most often reflects an even greater degree of insanity
[sic] rather than less.”22 In deciding whether sanctions should be imposed on a recalcitrant defendant, a court
should consult the examining mental health professionals and the defense attorney to determine both the basis

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for the defendant’s resistance and whether his or her attorney condones it.
As in the competence context, the Fifth Amendment not only dictates when the prosecution can compel
an MSO evaluation; it also places restrictions on when the state may use its results. The modern trend, similar
to that in the competence context, is to limit trial use of disclosures made during such an evaluation to issues
of mental state. To this effect, the Model Penal Code formulation, which has been adopted in several states,
reads: “A statement made by a person subjected to a psychiatric examination or treatment . . . shall not be
admissible in evidence against him in any criminal proceeding on any issue other than that of his mental
condition.”23
The Federal Rule of Criminal Procedure concerning this issue provides even more comprehensive
protection:

No statement made by the defendant in the course of any [psychiatric] examination . . . whether conducted with or without the consent of
the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement may be admitted into evidence
against the defendant in any criminal proceeding except on an issue regarding mental condition on which the defendant has introduced
evidence of incompetence or [mental state at the time of the offense].24

Thus the Federal Rules not only prohibit direct use of the defendant’s evaluation statements on issues other
than those he or she has raised, but also forbid use of evidence thereby discovered (like the murder weapon in
Case Study 4.1). In other jurisdictions, similar Fifth Amendment protection may be extended to the
defendant through judicial decision.25 Where statutory or judicial provisions do not exist, the defense attorney
can request the court to provide such protection via court order.
However, the Supreme Court has indicated that once the defense raises a mental state issue, the Fifth
Amendment provides virtually no restrictions on prosecution use of evaluation information on mental state
issues. Buchanan and Penry, discussed in § 4.02(a), suggest as much. And in Kansas v. Cheever,26 the Court
explicitly held that the Fifth Amendment’s protection of defense evaluation results is waived even when the
defense raised by the defendant is voluntary intoxication rather than a defense anchored in a mental
disorder.27 Thus the rule appears to be that any defense use of mental health professionals at trial or
sentencing permits prosecution access to use of the results of any defense-requested evaluation for rebuttal
purposes.
The final issue concerning Fifth Amendment application to the evaluation process has to do with when the
prosecution may access the results of an evaluation for the purpose of determining whether it wants to use
them for adjudicatory purposes. Although the Federal Rules of Criminal Procedure prohibit use of
investigative leads obtained from an evaluation, they do not prohibit access to them. In some cases, this aspect
of the Rules can have significant consequences. To prohibit “fruits” of the defendant’s statements from being
admitted at trial, as the Rules do, one must first be able to discover when the state’s evidence is in fact such a
fruit—a task that, as pointed out earlier, may often be impossible.
Therefore, the best method of reducing the potential for prosecutorial and police abuse of the evaluation
process is to restrict the prosecution’s access to the results as much as possible. When the examiner is retained
by the defendant, this objective is easily achieved: Virtually every court that has considered the matter has held
that the retained professional is an “agent” of the attorney, and that the results of such an evaluation are
therefore protected by the “attorney–client privilege” until the defense “waives” the privilege by putting the

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defendant’s MSO at issue.28 Unfortunately, the dictates of the attorney–client privilege and the Constitution
have not generally been recognized in those cases in which a government-employed examiner performs an
assessment initiated by counsel for an indigent defendant.29 In such cases, the examiner’s report typically is
sent to all parties, even when notice of an MSO defense has not been given. Yet, if the indigent defendant has
requested the evaluation, he or she should be able to rely on the same protection (whether based on Fifth
Amendment or privilege principles) as one who can afford to retain an examiner.
Accordingly, we recommend that whenever the defense has requested an MSO evaluation, or whenever the
court orders such an evaluation before the defendant has given notice of intent to raise an MSO defense, the
report summarizing the evaluation results should not be provided to the prosecution or the court (barring
defense consent or a court order) unless and until the defendant affirmatively indicates intent to assert such a
defense. Only then does the prosecution need to know the content of the defendant’s statements. Up to that
point, delivering the report to the prosecution is unnecessary; provides the state with too great a temptation to
use the information therein for investigative purposes, even if it is barred from using it directly at trial; and
may discourage full disclosure by the defendant, who knows that the examiner is a conduit to the prosecutor.
Following this reasoning, Virginia provides by statute that prior to notice of an MSO defense, the prosecution
is to receive only a summary of the evaluation report, from which statements by the defendant about the time
surrounding the alleged offense have been deleted.30 After notice is given, the prosecution can obtain the full
report and can request its own evaluation, if it wants one.31
The whole issue of pretrial disclosure of evaluation results is complicated by “reciprocal discovery”
provisions in many states (usually incorporated in a state’s rules of criminal procedure), allowing the
prosecution to “discover” the reports and statements of the defense’s experts once the defense asks for
information from the prosecution, even if the defense request precedes the defendant’s decision to raise a
defense [see § 2.04(a)(1)].32 To the extent that such discovery rules require prenotice disclosure of defense
evaluation results, they would seem to be in violation both of the Fifth Amendment and of the attorney–client
privilege.
A final point with respect to the application of the Fifth Amendment in this context has to do with the
courts’ treatment of testimony derived from an evaluation of mental state at the time of the offense. If and
when the state’s expert testifies, he or she may reveal incriminating information disclosed by the defendant,
even if the testimony is limited to a discussion of the defendant’s mental condition. Expert testimony about
the defendant’s sanity, for instance, will usually contain admissions by the defendant with respect to the act
associated with the offense in question. But preventing disclosure of this information would probably seriously
undermine the credibility of the testimony.
This problem has been dealt with in two ways. At one time, several states provided for mandatory
“bifurcation” of the trial process, with the first stage focusing on the “guilt” of the defendant, and the second
stage (if necessary) reserved for trying the sanity of the just-convicted defendant. In this way, the potentially
incriminating testimony of the clinician is reserved until after the defendant is found “guilty.” Unfortunately
for this approach, most state courts that have addressed the issue have declared that prohibiting admission of
expert mental health testimony at the initial stage of the process is unconstitutional, because it denies
defendants the opportunity to introduce all relevant testimony in their defense.33 Thus, under constitutionally
correct procedures, the bifurcated trial does not always avoid the incrimination problem and will often

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produce duplicative proceedings.34 For these reasons, most states that once used a mandatory bifurcation
procedure have since abandoned it.35 However, several states still permit bifurcation at the defendant’s request
if the court agrees.36
A second approach to the problem of trial incrimination, followed by most states, is to hold a unitary trial,
but to caution the jury to consider the prosecution-retained expert’s testimony only on the issue of mental
condition and not on other issues that the jury must decide.37 Such an instruction probably does not prevent
the jury from misapplying the prosecution expert’s testimony. Nonetheless, provided that the other
protections discussed in this chapter are available, a unitary trial is not likely to create much actual prejudice to
the defendant’s Fifth Amendment interest. Moreover, the defense will often present its own expert who
describes the offense in detail, and the prosecution will usually have evidence independent of the clinical
evidence sufficient to prove that the defendant committed the act associated with the crime. Perhaps the best
approach, endorsed by the American Bar Association (ABA) Criminal Justice Mental Health Standards,38 is
to hold a unitary trial with a precautionary instruction under most circumstances, but to allow bifurcation if
the court considers it appropriate (as when the defendant is presenting clinical testimony on the insanity issue
and also has a colorable nonclinical defense, such as self-defense, which might be prejudiced by the clinical
testimony if heard at the same proceeding).

(c) Sentencing Evaluations

Does the Fifth Amendment apply to a typical sentencing evaluation? For a time, most courts that addressed
the issue answered, “No.”39 Initially this result seems logical, because if the defendant is being considered for
sentencing, he or she presumably has been convicted and thus can no longer be “incriminated.” Yet in reality
presentence evaluations often take place before trial and thus can provide still another source of investigative
leads. In addition, the postconviction sentencing process itself can result in a type of incrimination. In the
typical first-degree murder case, for instance, the judge may have authority to impose a sentence ranging from
a few years to life in prison. In such a case, it seems to violate the spirit if not the letter of the Fifth
Amendment to allow the state to force a defendant to reveal information that would justify a more severe
sentence.
The Supreme Court has obliquely accepted this reasoning in the unique context of capital sentencing. In
Estelle v. Smith, the Court found that when the defendant’s statements to a clinician who later testifies for the
state expose the defendant to the “ultimate penalty of death,” there is “no basis to distinguish between the
guilt and penalty phases of a capital murder trial so far as the protection of the Fifth Amendment privilege is
concerned.”40 After Estelle, it appears that the capital sentencing evaluation should follow the same procedure
as an MSO evaluation. That is, until the defendant indicates an intent to present an expert witness at the
capital sentencing hearing, the prosecution should not be able to obtain its own clinical evaluation on capital
sentencing issues. After such notice is given, however, the prosecution should be entitled to obtain its own
assessment as well as the results of the defendant’s evaluation. Consistent with this reasoning, Federal Rule of
Criminal Procedure 12.2(c)(2) directs that the results of an evaluation of mental state “bearing on the issue of
punishment in a capital case” are to be sealed until “the defendant confirms an intent to offer during
sentencing proceedings expert evidence on mental condition.” The second edition of the ABA Criminal

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Justice Mental Health Standards sets out a more detailed version of this approach.41
Whether the same procedure must be followed in noncapital cases is not clear. The Court in Estelle
emphasized that it did “not hold that the same Fifth Amendment concerns are necessarily presented by all
types of interviews and examinations that might be ordered or relied upon to inform a sentencing
determination.”42 However, in Mitchell v. United States,43 decided in 1999, the Court appeared to hold that a
defendant may assert the right to remain silent at noncapital sentencing proceedings as well. There, a
unanimous Court stated that “to maintain that sentencing proceedings are not part of ‘any criminal case’ [the
language in the Fifth Amendment which describes the scope of the privilege against self-incrimination] is
contrary to law and common sense,” because “[w]here the sentence has not yet been imposed a defendant may
have a legitimate fear of adverse consequences from further testimony.”44 Five members of the Court also held
that the sentencing court may not use a defendant’s silence against him or her (except perhaps as a sign of lack
of remorse).45 Thus a convicted defendant may be able to avoid speaking about the crime, without penalty,
not only at the sentencing hearing but also at any presentence interviews.
Of course, defendants who decide to tell their side of the story at sentencing, either directly or through an
expert, would surrender this right to silence. Furthermore, if the possible consequence of speaking is
something less than enhancement of a criminal sentence, then the Fifth Amendment often will not apply. In
McKune v. Lile,46 the Supreme Court upheld a statute that conditioned a prisoner’s entry into a sexual abuse
treatment program on disclosure of all prior sexual offenses (including those not yet charged)—even though
refusal also resulted in curtailment of several privileges (visitation rights, earnings, work opportunities, the
ability to send money to family members, canteen expenditures, and access to personal television), and even
though inability to get into the program increased the likelihood of transfer to a maximum security unit. The
Court did not find these burdens on the right to silence to be constitutionally significant.

(d) Juvenile Delinquency and Commitment Proceedings

Technically, the Fifth Amendment only prohibits use of incriminating statements at criminal trials. But as §
2.04(d) points out, modern courts have consistently characterized juvenile delinquency proceedings and civil
commitment as “quasi-criminal” in nature, given the “massive deprivation” of liberty that may result from a
finding that a person should be punished as a delinquent or institutionalized in a mental hospital. For this
reason, the Supreme Court held, in In re Gault,47 that the Fifth Amendment applies in juvenile delinquency
proceedings. Presumably, the same constitutional rules that govern adult evaluations should also apply to these
proceedings.
The judiciary’s approach to civil commitment has been more cautious, however. In Lessard v. Schmidt,48 a
seminal 1972 case, the federal district court applied the Fifth Amendment to civil commitment proceedings
and evaluations on the ground that a defendant’s disclosures during a commitment hearing or a prehearing
assessment are both “incriminating” (if they could lead to involuntary hospitalization) and “compelled” (if the
individual is not informed of the right to remain silent). Most courts, however, have concluded that while a
civil commitment hearing is analogous to the criminal process in many ways, it is not a criminal trial and
should not be encumbered with all the procedures afforded the criminal defendant.49
The Supreme Court appears to have endorsed the latter position. In Allen v. Illinois,50 the Court held, 5–4,

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that commitment under a “sexually dangerous offender” statute was not a “criminal” proceeding for purposes
of the Fifth Amendment, at least when the statute permits the prosecution to seek commitment in lieu of
criminal conviction for a sexual offense. (Several states now provide for special commitment of “sexually
dangerous” individuals after conviction [see § 9.04(b)].) Thus the state may, without violating the federal
Constitution, compel an individual charged under such a statute to undergo a psychiatric evaluation of his or
her dangerousness, if the results will be used only as a basis for seeking commitment under the statute.
Similarly, the individual may not exclude compelled statements from such commitment proceedings. The
Court’s justification for this holding was that the primary purpose of the Illinois statute in question was
treatment, not punishment. Thus there was no danger of “incrimination” at this type of commitment
proceeding. While the Court suggested it might reach a different result if the consequences of such
commitment were identical to those faced by a felon, in the case before it Allen was confined for five years in
the psychiatric unit of the state’s maximum security prison—a term that was four years longer than the
sentence he would have received had he been convicted. Yet the Court ruled that because Allen was afforded
treatment different in kind from that afforded felons, he was not entitled to Fifth Amendment protection.
Allen is important because it firmly repudiates the suggestion in Gault that the Fifth Amendment should
apply whenever the proceeding in question may lead to loss of liberty. Rather, after Allen, the sole question for
Fifth Amendment purposes is whether the primary purpose of the proceeding in question is treatment or
punishment. One could certainly argue that the type of commitment at issue in Allen more resembled
punishment than treatment— particularly because under these types of statutes, confinement is indeterminate,
release is conditioned on a finding that the individual is no longer dangerous, and the primary purpose of such
statutes seems to be incapacitation rather than treatment. Moreover, as Justice Stevens pointed out in his
dissenting opinion in Allen, the Illinois statutory framework was decidedly criminal in flavor: Commitment
was triggered by a criminal offense, initiated by the state prosecutor, required the criminal standard of proof,
and resulted in confinement in prison. But after the Court’s holding in Allen, it appears that not only “sexually
dangerous offender” proceedings of the type at issue in Allen, but also civil commitment proceedings and post-
insanity-acquittal hearings, will be considered “civil” for Fifth Amendment purposes.51

(e) Other Civil Proceedings

Examinees may also make self-incriminating statements, during evaluations that are more properly labeled
“civil” in nature. Because several states make child neglect a criminal offense, for instance, incriminating
statements may be made during dependency or child custody evaluations. Such incriminating information is
generally admissible at a subsequent criminal trial if it is not protected by the attorney–client privilege (i.e., if
the evaluation was conducted at the behest of the opposing side or the state). During such evaluations, it is up
to the examinee’s attorney to ensure that his or her client “takes the Fifth” when asked questions that might
lead to disclosure of incriminating information. If the privilege is not asserted, it is very likely that the
disclosures will be admissible in any criminal proceeding initiated against the individual. If, on the other hand,
the privilege is asserted, the examinee may not be held in contempt; otherwise, the Fifth Amendment would
be meaningless.

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 (f) The “Miranda Warnings”

In Estelle v. Smith, the Supreme Court held that when the defendant “neither initiates [a] psychiatric
evaluation nor attempts to introduce any psychiatric evidence” at a subsequent capital sentencing
proceeding,52 statements made by the defendant during the evaluation are inadmissible at the capital
sentencing proceeding unless the defendant has first been given warnings to this effect: “You have the right to
remain silent, and anything you say may be used against you in later proceedings.” Estelle has caused
considerable confusion among mental health professionals; on a first reading, the decision seems to require
that every forensic evaluation be preceded by “Miranda warnings” (so called because the above-described
litany is taken from the Supreme Court’s famous decision in Miranda v. Arizona53).
In the typical criminal case, however, such warnings are not required; indeed, they would be inaccurate. As
noted earlier, given the limitations on the use of evaluation results, the defendant generally has no right to
remain silent during a court-ordered competence evaluation (such as that involved in Case Study 4.1) or a
postnotice, state-requested MSO evaluation or sentencing evaluation. And if the defendant’s disclosures are
protected by the attorney–client privilege [see § 4.02(b)], the defendant has no reason to remain silent. Only
when (as in Estelle itself) the defense has not yet indicated an intent to use the testimony of a mental health
professional, and the evaluation is designed to obtain sanity or sentencing information for the state, does the
clinician need to tell the defendant, “You may refuse to talk, and anything you say may be used against you.”
Whether persons evaluated for purposes of civil commitment proceedings must be warned of the right to
remain silent depends, of course, on whether such a right has been found to exist by the relevant tribunal. If
individuals are entitled to such a right, they should be told that they possess it; otherwise, their Fifth
Amendment guarantee is likely to be meaningless. The fact that such warnings might inhibit disclosure is
legally irrelevant, although perhaps clinically unfortunate.54 Courts consistently refuse to abate the Fifth
Amendment right in the criminal context merely on the ground that its implementation might complicate the
state’s efforts to secure a conviction.
Although the law might not require that examiners provide “warnings” before beginning the evaluation
process, mental health professionals’ ethical and practice guidelines require that the evaluator discuss the
nature of the evaluation and its possible uses with the examinee. This topic is dealt with at greater length in §
4.05(d).

4.03. THE RIGHT TO COUNSEL

The Sixth Amendment promises the criminal defendant the “assistance of counsel for his defense.” The
Supreme Court has held that the Amendment actually guarantees two different rights: (1) the right to
presence of counsel, and (2) the right to effective assistance of counsel. Both rights have implications for the
conduct of forensic evaluations in criminal cases. With respect to counsel in civil cases, on the other hand, the
relevant law on these issues is likely to be statutory rather than constitutional and varies from jurisdiction to
jurisdiction.

(a) Counsel’s Presence during the Evaluation

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In the second half of the 20th century, the Supreme Court issued several rulings that granted criminal
defendants a constitutional right to counsel not only at the trial itself, but also at several so-called “critical
stages” of the criminal process that precede trial. Thus, for instance, defendants have the right to have counsel
present at a postindictment lineup, at a preliminary hearing to determine whether there is probable cause to
prosecute, and at arraignment.55 A minority of courts have equated the pretrial clinical evaluation with these
stages of the criminal process, and have held that the Sixth Amendment guarantee applies to forensic mental
health assessments.56 Most courts, however, have held that defendants do not have a right to counsel’s
presence during the actual evaluation.57 In Estelle v. Smith, the Supreme Court intimated that it agreed with
this latter approach. While the Court established that the prosecution must inform the defendant’s attorney
about any evaluation it plans to conduct (which suggests that the clinician in Case Study 4.1 may have an
obligation to ensure that the defense attorney knows about the evaluation), it also cited with approval a lower
court’s opinion that the attorney’s actual presence during the evaluation “could contribute little and might
seriously disrupt the examination.”58
One might argue that the Supreme Court’s caution on this issue is unfounded. The leading Court case on
the right to counsel is United States v. Wade,59 which held that a criminal defendant has the right to counsel
during postindictment identification lineups. The Court appeared to rely primarily on two justifications for its
ruling. First, an attorney should be present because the identification made at the lineup might substantially
prejudice the defendant’s interests. Second, reconstructing at trial what actually occurred during the lineup
identification might be difficult if counsel did not observe it. The Court noted, for instance, that “neither
witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect,” and that
“[i]mproper influences may go undetected by a suspect, guilty or not, who experiences the emotional tension
which we might expect in one being confronted with potential accusers.”60 The Court also pointed out that
“any protestations by the suspect of the fairness of the lineup at trial are likely to be in vain; the jury’s choice is
between the accused’s unsupported version and that of the police officers present.”61
The analogy to the clinical evaluation process should be apparent. The results of prosecution-requested
competence, sanity, and sentencing evaluations can have a substantially adverse impact on the defendant’s
case.62 And a defendant whose emotional, behavioral, or cognitive functioning is impaired may not be able to
reconstruct accurately for the attorney what occurred during such an evaluation. Nor would the examinee’s
testimony alone be likely to fare well against the testimony of a mental health professional.
Even after accepting these points, however, one might argue that the attorney’s presence during the
evaluation is not necessary. A video or audio recording of the evaluation could afford the attorney with a
sufficient record of the relevant events.63 Furthermore, in situations where insisting on the defense attorney’s
presence would impede the evaluation (as could occur if the evaluation took place far from the trial court or
over a long period), recording might be the only reasonable solution. Finally, and most important to many
examiners, the presence of the defense attorney could affect the defendant’s responses (whether the attorney
had that intention or not).
Nonetheless, in those cases in which attorney access is practicable, we suggest that criminal defense counsel
be permitted to sit in on the evaluation. Recordings often do not capture all the nuances and contextual
variables that affect an evaluation. And despite the Supreme Court’s concern about disruptions, having an
attorney present usually does not impede a forensic evaluation. As noted in § 4.02, in the typical prosecution-

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requested evaluation, the defendant does not have the right to remain silent, and the attorney risks imposition
of sanctions against the client if the attorney advises noncooperation or otherwise prevents the client from
cooperating. Indeed, because the relationship between the state-retained examiner and the defendant may be
somewhat strained to begin with, an attorney’s presence might even facilitate the evaluation process.
Regardless of constitutional demands, practical considerations connected with certain types of evaluations may
also warrant the presence of an attorney. In particular, when one of the issues to be assessed is the relationship
between the attorney and a defendant (as is the case in evaluations of competence to proceed, like that
involved in Case Study 4.1), it may make good sense to allow the attorney to observe and occasionally
participate in the assessment. This is the position of the ABA Criminal Justice Mental Health Standards.64
Given the possibility of disruption by the attorney, however, most courts confronted with this issue will, at
most, permit the defense attorney to record the evaluation—an option that is consistent with Estelle’s
reasoning. An alternative is to have a defense-retained expert observe the evaluation in place of the attorney.
Even if the actual presence of an attorney is not constitutionally required in criminal cases, one of these
“substitute” procedures may be constitutionally mandated if the defendant requests it.
The reluctance of most courts to permit defense attorneys to be present during evaluations in criminal cases
stands in contrast to the willingness of many courts to allow opposing counsel at evaluations in civil cases—a
contrast that is particularly striking, given the fact that the Constitution does not mandate counsel in such
cases. The courts that are most likely to permit attorney presence in civil litigation are those that perceive the
expert as an advocate engaged in discovery, as compared to those that perceive the expert to be an impartial
authority.65 If the presence of counsel is viewed as too disruptive, recording the evaluation is also an option; it
has the advantage of being “self-regulating,” in that, unlike in criminal cases involving indigent clients, the
recording party will normally have to bear the expense. Some clinicians object even to the presence of a
recording device, on the ground that it is impractical (imagine, e.g., a child custody evaluation involving
prolonged interviews of hyperactive children and home visits), or on the ground that examinees will be
defensive or inhibited by knowledge that their statements may be reported verbatim. These concerns,
although valid, must be balanced against the parties’ legitimate interest in access to an accurate account of the
expert’s data, along with an acknowledgment that some examinees may indeed be more forthcoming in
response to their attorney’s reassuring presence.
Independent of these legal concerns are calls by some professional organizations to bar recording of
examinations and to bar the presence of any third party (e.g., attorney, advocate, another expert) during
examinations, on the grounds that such practices invalidate the assessment process.66 Analogous to arguments
made in the constitutional context, these organizations contend that the presence of a third party can (1)
affect what the examinee shares with the examiner (although some examinees may be more forthcoming with
the presence of a third party), (2) threaten the validity of results of psychological tests that were not normed
with a third party present, and (3) threaten the security of some psychological tests [on the last issue, see §
18.03].67

(b) Presenting an Effective Defense

Two issues involving the criminal defendant’s right to effective assistance of counsel are discussed here: an

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indigent defendant’s right to an independent state-funded evaluation, and a nonindigent defendant’s right to
prevent the prosecution from using experts the defendant has decided not to call.

(1) The Right to an Independent Evaluation

Although virtually every state provides indigent criminal defendants with free evaluation services at state
institutions, probably fewer than half provide funds on a systematic basis for an indigent defendant who
wishes to consult a mental health professional who does not work for a publicly funded agency.68 At least
three arguments have been advanced for enabling indigent defendants to have access to an “exploratory”
evaluation (also called “ex parte” or “confidential” evaluation). First, the results of such evaluations are more
likely to be kept confidential than the results of evaluations by state hospital or court clinic employees, thus
better protecting the Fifth Amendment rights discussed earlier. Second, failing to provide funds for
exploratory evaluations forces clients to rely on potentially biased state- or court-employed clinicians, and thus
undermines a defense attorney’s ability to represent his or her client optimally. Finally, making indigent clients
rely on state-employed or court-employed clinicians violates notions of equal protection, in that wealthier
defendants can choose from as many clinicians as their resources permit.69 These arguments can be coupled
with evidence that an independent evaluation program that pays community clinicians on a per-evaluation
basis is likely to be much less expensive than a system that involves transporting defendants to hospitals for
prolonged stays.70
These arguments usually fail, however, because courts assume that state- and court clinic-employed
examiners are impartial. Thus, for instance, in Ake v. Oklahoma,71 the Supreme Court held that indigent
defendants are guaranteed psychiatric assistance under the Sixth Amendment when raising an insanity defense
or mitigating circumstances at capital sentencing, but it also decided that indigent individuals do not have the
right to a clinician of their own choosing or one who will support their legal position. Rather, the states may
determine how to implement the right to such assistance. For instance, the states may rely solely on state
hospital employees; they are not compelled by Ake to provide funds for evaluations and related assistance
conducted by private practitioners.72 Moreover, Ake specifically held that an indigent defendant is entitled to
only one government-funded evaluation. The Supreme Court has also implied that the results of this
evaluation can go to the prosecution as well as the defense,73 which undermines the goal of providing indigent
defendants with expert aid analogous to that provided wealthier defendants whose prenotice evaluations are
normally protected by the attorney–client privilege [see § 4.02(b)].
A few states do make provisions for defendants to seek an independent evaluation if they are dissatisfied
with the evaluator selected by the court or with the results of the evaluation.74 Many states have also
decentralized their evaluation systems; in these states, mental health professionals who are employed in court
clinics or community mental health centers are usually available, along with state hospital personnel, to
provide evaluations, thereby offering indigent defendants a greater number and variety of clinicians from
which to choose—if the state allows such a choice.75 Furthermore, even under Ake, a clinician who reaches an
opinion contrary to that sought by the defense must still “consult” with the attorney; the majority opinion in
Ake requires the professional to “conduct an appropriate examination and assist in evaluation, preparation and
presentation of the defense.” Thus (for example), if the defense can construct an insanity defense by relying

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solely on lay witnesses, the expert whose opinion does not support the insanity defense must still cooperate
with counsel in preparing for direct examination. The Supreme Court and a number of lower courts have
emphasized that Ake guarantees at least this much, and further envision the expert will help the defense by
identifying weaknesses in the prosecution’s case, preparing for cross-examination of prosecution witnesses, or
otherwise assisting “in whatever capacity defense counsel deems appropriate.”76 We point out, however, that
this view of the mental health expert’s role (particularly providing assistance in the form of preparation and
presentation of the defense) may conflict with some mental health professionals’ interpretation of ethical
provisions that endorse striving for honesty and objectivity,77 or that prohibit inappropriate mixing of
evaluation and consultation activities.78
Under what circumstances is an indigent defendant entitled to evaluation by a state-funded examiner? The
majority in Ake stated, “When the defendant is able to make an ex parte threshold showing to the trial court
that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is
readily apparent” (emphasis added). And the defendant is entitled to an expert on dangerousness “when the
State presents psychiatric evidence of defendant’s future dangerousness.” Although the latter standard is
relatively clear, many lower courts have held that to obtain an Ake evaluation on insanity the defendant must
make a “clear showing” that mental state is a “genuine” or “real” issue—a showing that may be difficult
without psychiatric assistance.79
Ake dealt only with insanity and capital sentencing evaluations. Although states usually finance competence
evaluations as well, only a few courts have found that funds for independent evaluations are constitutionally
mandated at noncapital sentencing or in civil commitment and similar contexts.80 In some circumstances,
such as Social Security disability assessments, statutes require the government to pay for evaluations that
claimants cannot afford [see § 13.04(b)]. In most civil contexts, however, the requesting party bears the cost of
evaluations.

(2) Use of Experts Retained by the Opposing Party

A quite different problem arises when, as hypothesized in Case Study 4.1, an attorney representing a
nonindigent defendant retains more than one expert and decides to raise a mental health defense using only
some of the experts, and the prosecution then subpoenas the remaining expert or experts. In United States ex
rel. Edney v. Smith,81 a federal district court held that in criminal cases the state should have access to the
experts the defendant has decided not to use, once the defense has properly raised an MSO defense.
Otherwise, the circuit court stated, the defendant would “be permitted to suppress any unfavorable psychiatric
witness whom he had retained in the first instance, under the guise of the attorney–client privilege, while he
endeavors to shop around for a friendly expert, and take unfriendly experts off the market.” Several courts have
followed Edney’s lead.82
A slightly smaller number of courts follow United States v. Alvarez,83 which held that the defendant’s right
to effective assistance of counsel is curtailed when the state is permitted to use experts the defendant has
discarded. According to the Alvarez court, the “attorney must be free to make an informed judgment with
respect to the best course for the defense without the inhibition of creating a potential government witness.”84
The Edney rule clearly has more of an inhibiting effect on open disclosure during the evaluation.

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Furthermore, because the state is entitled to its own evaluation once the defendant gives notice of an intent to
raise an MSO defense, the prosecution will rarely be severely hampered by the Alvarez rule. Yet if the defense
attorney can gag experts merely by consulting them, however briefly, the prosecution could be denied access to
valuable (and arguably much fresher) data if the Edney approach were not followed. Deciding which rule is
best in a particular case may depend largely on the number of forensic examiners available in the particular
community, and on whether the defense attorney has acted in good faith when consulting with the various
experts. This approach would also comport with typical practice in civil cases, where, as detailed in § 2.04(b),
one side may depose another side’s unused experts only upon a showing of substantial need.

4.04. COMMON-LAW AND STATUTORY DUTIES OF THE EVALUATOR

This section discusses various nonconstitutional legal principles that govern the conduct of forensic
psychological and psychiatric evaluations. In particular, it focuses on the types of acts or omissions for which
an evaluator may be legally liable or which may violate a “privilege.” As will be seen, the evaluator (as opposed
to a therapist) has little to be concerned about in either regard.

(a) Liability for Breach of Confidentiality

In a typical therapeutic relationship—one in which a mental health professional and another individual enter
into an arrangement for purposes of providing treatment—the law encourages confidentiality. A clinician who
divulges information about a patient to unauthorized parties (including a court) in the absence of the patient’s
consent or some other exception to the confidentiality rules is liable for any resulting damage to that patient’s
reputation and privacy interests.85 In the forensic evaluation context, however, clinicians conduct evaluations
with the express intent of sharing their findings with others—sometimes over examinees’ objections. This is so
even when the evaluator’s report will be part of a court record that will be public, as is often the case in both
civil and criminal cases.86 Such openness may seem anathema to mental health professionals trained to honor
their patients’ privacy, and it may also appear to run afoul of central ethical precepts [see § 4.05(d)]. But it
stems from the conviction, rooted in the First Amendment, that the public has the right to monitor the
judicial process—a concept that has been reemphasized by the United States Supreme Court in several
decisions.87
Thus, as long as the evaluator’s disclosures do not stray beyond the terms of the court order (or, in the
absence of a court order, the referral source’s query), it is extremely unlikely that he or she could be found
liable for breach of privacy or damage to reputation. In fact, several courts have held that an evaluator is
absolutely immune from a claim that an evaluation report defames or violates the privacy of the subject of the
report if the government requested the report for purposes of litigation pending against the subject.88 Of
course, this type of protection against personal liability suits should not lead evaluators to neglect other ethical
duties they owe examinees. As discussed more fully in § 4.05(e), because of the public nature of their product,
evaluators should not include material of only marginal relevance in their reports unless, as discussed below,
they are required to do so.89

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 (b) The Duty to Protect the Public (Tarasoff)

Under limited circumstances having to do with protection of the public, the law may require information
beyond that requested by the court order. Every state, for instance, provides that, whether or not in a
confidential relationship, clinicians who observe or suspect child abuse must notify the appropriate agency,
and some require clinicians to contact the authorities if patients tell them of plans to commit certain types of
crimes or engage in violence.90 These requirements probably also apply to clinicians acting as evaluators, with
one significant exception. When a clinician is an agent of a criminal defense attorney or a civil attorney (rather
than the prosecutor or court), disclosure is likely to be governed by the attorney–client privilege. This privilege
and associated ethical rules prohibit disclosure of information about past crimes so as to encourage revelation
of material necessary to facilitate effective representation. Thus, absent a statute that abrogates the attorney–
client privilege in this setting, an evaluator retained by an attorney should keep confidential past crimes related
by the client (including information about past child abuse), at least until the client and the attorney indicate
otherwise.91
What if the abuse is ongoing, however? The rules dealing with the attorney–client relationship allow (but
do not require) the attorney to disclose information necessary to prevent serious crime or stop ongoing
crime.92 If the attorney resists disclosure even in the latter situation and in the absence of governing case law,
the evaluator should probably be guided by his or her own ethical obligations, which may or may not mandate
disclosure [see § 4.05(d)(3)].93
When the evaluator is not an agent of the attorney, as is the situation in Case Study 4.1, the attorney–
client privilege does not apply. Thus the relevant practice acts and ethical rules govern disclosure of both past
and future crimes; they normally prohibit revelation of past crimes, but, as noted above, permit or require
disclosure of risk.94 The latter exception to confidentiality might even permit disclosure of past unsolved
crimes if those crimes are directly relevant to an issue the court wants addressed (e.g., an evaluation of risk), at
least when the examinee has been informed before the evaluation begins about the type of information that
will go in the report.
A separate legal development, which began in the courts rather than the legislatures, has created the
possibility of significant monetary liability if a patient harms a third party under certain circumstances. In the
famous case of Tarasoff v. Regents of the University of California,95 the Supreme Court of California imposed a
duty on therapists to take preventive measures if the therapist concludes (or under applicable professional
standards should have concluded) that the person evaluated is dangerous and fails to take action to prevent
harm. Applying this rule to the facts in Tarasoff, the court found that the mental health professionals involved
in the case—one of whom treated a patient who went on to kill a young woman—could be sued by the
victim’s family on the grounds for failing to take some action to protect the victim (e.g., by informing her of
the threat).
Although perhaps 20 jurisdictions explicitly recognize a Tarasoff-type duty,96 many limit the duty to
situations in which, to use the words of the California statute enacted after Tarasoff, “the patient has
communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable
victim or victims.”97 Moreover, application of the duty to therapists does not necessarily mean that it also
applies to forensic examiners, even in those situations where the attorney–client privilege would permit

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disclosure. A person does not normally have a legal obligation to help another unless he or she stands in a
“special relationship” to that person. The Tarasoff court found that the therapist does have such a relationship
with a potential victim of a patient, in part because the therapist’s involvement with and control over the
party’s potential assailant is “significant,” and in part because the therapist possesses expertise in predicting
who may be violent. But the evaluator may not have as much contact with the subject of an evaluation as a
therapist does with a patient. Moreover, malpractice law has traditionally made a distinction between
“treating” and “examining” doctors, and has placed less of a duty on the latter.98
On the other hand, the evaluator, as a clinician, can initiate commitment and take other steps to “control” a
dangerous individual. And although mental health professionals have limited ability to “predict
dangerousness” [see § 9.09(b)], to the extent that such expertise exists, distinguishing between a therapist and
an evaluator may make little sense. Moreover, it is arguable that, given the diminished degree of privacy
associated with evaluations, even less reason exists to refrain from disclosure than in the therapeutic context.
If Tarasoff is applied to forensic evaluations, what type of obligation does it impose on the evaluator? First,
as indicated above, statutes in many jurisdictions, including the one in which Tarasoff was decided, provide
that no duty exists unless the potential victim is specifically identified.99 Second, contrary to popular
perception, Tarasoff did not create an automatic “duty to warn” the potential victim if and when the victim is
identified. Courts and statutes recognize several alternatives to a warning, including notification of the police
or commitment of the individual—in short, any steps reasonably appropriate under the circumstances.100 If, as
is often true in criminal cases, the person being evaluated is already in custody, the clinician’s Tarasoff duty
may be met merely by notifying the court or the custodial agency of this suspicion. If the individual is not in
custody, on the other hand, other measures, including commitment, should be considered in lieu of or in
addition to notification of the court.
Despite what some mental health professionals feared,101 the limitations on confidentiality created by
Tarasoff have not impeded the therapeutic process, and nothing suggests that applying its rule to either
therapeutic or evaluative encounters does more harm than good.102 Additionally, the American Psychiatric
Association has indicated that it may be proper to hold a psychiatrist liable for “flagrantly negligent” failures to
protect others from harm, and ethical rules mandate a duty to protect the public.103 Given the controversy
surrounding Tarasoff, it is impossible to predict the direction those states that have not considered the issue
will take with respect to the Tarasoff duty in either therapeutic or forensic context. In states in which the law
is unclear, examiners are probably best advised to act as if they were in a Tarasoff jurisdiction—remembering
that disclosure should occur only when indications of dangerousness would lead a competent clinician
reasonably to conclude that the examinee will act out violently toward a specific person, and divulging only the
information that is necessary to prevent the foreseen violent act.

(c) Clinician–Patient Privileges

Although some states recognize only a physician–patient privilege that applies only to psychiatrists and not
other mental health professionals, many states have also established psychotherapist–patient, psychologist–
patient, and social worker–patient privileges.104 Under limited circumstances, these evidentiary privileges
allow the patient, and in some jurisdictions the therapist as well,105 to prevent the therapist from testifying

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about or disclosing records that chronicle what was communicated in therapy. As with the attorney–client
privilege discussed in § 4.02, these privileges are designed to encourage open discussion between the
professional and the person seeking services by protecting against unwarranted disclosures to third parties.
As should be clear from the foregoing discussion, however, these privileges are irrelevant in forensic
evaluation contexts. The “clinician–patient” privilege does not apply when the examiner–examinee
relationship is the creature of the court, as is the case with court-ordered evaluations. And as noted in § 4.02,
even the attorney–client privilege applies only when the evaluating clinician is an agent of the defendant’s
attorney. In short, the law takes the position that for purposes of evidence law, the evaluator’s client is the
party that requests the evaluation, not the examinee. Consistent with previous discussion, therefore, the
evaluator must report any information about the person that is relevant to the questions specified by the
requesting party regardless of assertions of a clinical privilege.
A separate privilege issue arises when the evaluator is (or was) also the therapist of the person being
evaluated. Although, as an ethical matter, the therapist should avoid this situation [see § 4.05(c)(2)], it arises
occasionally. When this happens, the evaluator may feel particularly concerned about the competing duties of
confidentiality and obedience to the court.
As might be expected, the law gives precedence to the latter duty. In civil cases, for instance, most
jurisdictions hold that patients waive the psychotherapist–patient privilege whenever they have initiated
litigation or raised a legal claim that might involve the issue of their mental state. Although other states only
abrogate the privilege when the benefit to be gained by the disclosure outweighs its negative effects, the result
is usually the same as under the first approach. In criminal cases, the privilege is even less useful. A small
number of states follow the balancing approach just described; most, however, simply state that the privilege is
not available when the defendant’s mental state is at issue.106 Thus, in the typical case, the privilege provides
little protection; the therapist or the therapist cum evaluator can usually be required to reveal what has been
learned about the litigant during therapy. The only recourse in the face of a subpoena for records or testimony
is to argue that the adverse effects of disclosure outweigh the benefits, or that the material sought is irrelevant
to the pending litigation—either because the issue of mental state has not been squarely raised, or because the
content of therapy was far removed from what is at issue in litigation.
In a 1996 decision, Jaffee v. Redmond,107 the United States Supreme Court finally recognized a
psychotherapist (including social worker)–patient privilege in federal court. Jaffee specifically rejected the
balancing approach described above for federal cases, stating, “Making the promise of confidentiality
contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy
and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege.”108 Jaffee also made
other strong statements endorsing the need for the privilege. But the case did not address whether the
traditional patient/litigant exception to the privilege would be recognized. Rather, the Court merely held that
on the facts of the case—which involved the therapy records of a police officer who was being sued for
negligently killing someone—the privilege prevented disclosure. Because the officer had not raised her mental
state as an issue, and because the therapy had taken place after rather than before the legally relevant event
(the shooting), the Court’s holding says nothing explicit about the typical situation raised in the forensic
evaluation context. Moreover, as noted, Jaffee speaks only to the scope of the privilege in federal court.
A question that combines the issues addressed in this and the previous sections is whether disclosures that

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occur pursuant to a notification statute or Tarasoff are admissible in subsequent litigation. Of course, if the
proceeding is a civil commitment hearing designed to hospitalize a dangerous patient, the statements will be
admissible. But if the prosecution wants to use the statements in a subsequent prosecution, the courts are split
on their admissibility. While some jurisdictions recognize a “dangerous patient” exception to the therapist–
patient privilege on the ground that the statements can be highly probative in a criminal case,109 others refuse
to do so, reasoning that such an exception would deter potential patients from seeking therapy and would have
a deleterious effect on any therapy that did take place.110 We also note that in this context it is often the
prosecutor, not the patient, who is raising the mental state issue.
As the previous discussion illustrates, common-law and statutory principles—in particular, rules
establishing the duty to protect third parties and the patient/litigant exception to therapeutic privileges—
might discourage communication between the clinician and the patient or examinee. The problem is
exacerbated if the clinician feels ethically compelled to “warn” the person being evaluated of the potential for
disclosure to third parties; this issue is taken up in § 4.05(d)(3).

(d) Other Tort Doctrines Relevant to Evaluations

Although it is unlikely, the evaluator may be sued for damages on a number of other claims arising out of civil
tort law. We discuss here the two most probable such claims: violations of informed consent, and negligent
misdiagnosis.

(1) The Informed Consent Doctrine

If a health care professional treats a competent individual in a nonemergency situation without first obtaining
that person’s consent, the clinician is liable for battery (if the treatment involves some kind of physical contact)
and any damages resulting from the treatment. Because this general doctrine is reflected in the ethics codes of
all health care professions, clinicians who commit this tort also risk actions against their licenses or
professional memberships, even in cases where no harm has occurred.
Both to define the legal criteria for a valid consent and to encourage consensual treatment, courts
developed the doctrine of “informed consent.” Recently the legal doctrine has become relatively sophisticated.
As discussed in detail in § 11.03(a), it requires, in the treatment context, that (1) the clinician provide the
patient with information that would be “material” (i.e., relevant) to the decision whether to accept the
proposed treatment; (2) the consent not be “coerced”; and (3) the individual from whom consent is sought be
competent or have a guardian protecting his or her interests.111
The relevance of the legal doctrine to the evaluation process is minimal in cases in which a court has
ordered the evaluation. In these cases, the evaluation may occur without the examinee’s consent (although
professional ethics direct that examiners notify examinees about the nature and purpose of the evaluation) and
even over the examinee’s explicit objection (although having an uncooperative examinee often makes for an
evaluation of limited utility). And as noted earlier, examinees in civil and criminal proceedings who have been
ordered to undergo a forensic mental health examination may be sanctioned if they refuse to cooperate.
However, if the evaluator decides to use evaluation techniques other than the usual oral or written question-

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and-answer modes, the doctrine may come into play. If, for example, an examinee underwent a neuroimaging
procedure, the examinee should be told of its possible dangers (e.g., risks from contrast media), and the
clinician should make sure that any consent obtained is competent and voluntary. Otherwise, the clinician
might be held liable for any harm caused by the procedure, even if it was performed properly.112 Of course,
potential liability should not be the only concern of the forensic evaluator. As developed in § 4.05(d), the
clinician should feel ethically compelled to inform any person subject to evaluation of its nature.

(2) Negligent Misdiagnosis

Generally, a mental health professional is not liable for negligent misdiagnosis unless the failure to make the
correct diagnosis results in improper treatment and subsequent harm. (Again, however, even without a
resulting harm, gross errors in diagnoses might lead to action against the clinician’s professional memberships
or license.) The standard for deciding what is negligent focuses on prevailing professional norms.113 A
mistake in diagnosis will usually not be viewed as negligent if the clinician can show that (1) reasonable doubt
existed as to the nature of the condition involved; (2) medical authority was split as to the diagnostic
procedure to be followed when one of the conflicting procedures was in fact used; or (3) the diagnosis was
made after a conscientious effort by the clinician to inform him- or herself about the patient’s condition.114
Recall also that forensic examiners have traditionally been given much more leeway than therapists, in part
to encourage full disclosure to the court or agency ordering the examination. Therefore, it is unlikely that a
person who was adjudicated “incompetent,” “insane,” or “unfit as a parent” (or “competent,” “sane,” or “fit”) on
the basis of a professional’s testimony could successfully sue the professional on the ground that the clinician’s
opinion was arrived at negligently and that it caused harm. Indeed, it is probable that, as discussed in §
4.04(a), absent a showing of bad faith, clinicians would be given immunity from such a suit if their
information or opinions were the result of a court order. In the commitment context, several states go further
and grant clinicians who testify at commitment hearings absolute immunity from claims based on their
hearing testimony.115
However, some courts have been unwilling to grant immunity to expert reports or testimony if it can be
shown that the expert’s product was either intentionally or recklessly erroneous. In Deatherage v. State of
Washington Examining Board of Psychology,116 the court held that the expert’s “failure to qualify statements,
his mischaracterization of statements, his failure to verify information, and his interpretation of test data”
could be a basis for professional disciplinary action.117 Deatherage involved only professional discipline. In
another case, a plaintiff was permitted to sue his own expert for malpractice, on the ground that the expert
had violated his contractual obligation to carry out biomechanical testing in a scientific matter.118 In still
another case permitting suit, the court stated that expert immunity should “generally [be] restricted to
defamation, defamation-type, or retaliatory cases against adverse witnesses,”119 meaning that negligence
misdiagnosis suits might be justifiable. In contrast, other courts have rejected not only suits against adverse
witnesses (on the ground that otherwise every losing party would have an incentive to bring such actions), but
also suits against their own witnesses, on the ground that allowing such claims would create an incentive for
experts to distort their testimony in their clients’ favor or discourage experts from testifying altogether.120
In theory, an expert report or expert testimony should not be introduced into evidence unless it meets the

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relevant evidentiary standards (e.g., Frye or Daubert). Thus an expert who is sued by either party for his or her
report or testimony should be able to erect as a defense the court’s decision to permit the evidence. However,
judges do not always apply these tests rigorously; even when they do, if evidence subsequently surfaces
indicating that the expert carried out an evaluation negligently, a claim could be sustained. The lesson for
clinical experts is to ensure testimony meets the dictates of Frye or Daubert, as applied in the relevant
jurisdiction.

(e) HIPAA and Forensic Evaluation

A final possible source of legal limitations on the evaluation process is the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), which went into effect in 2000,121 with significant amendments to the
law governing the security of protected health information enacted in 2009.122 HIPAA is a Congressional
effort, implemented through extensive regulations, to standardize the collection, protection, and transmission
of protected health information (PHI) (including mental health data); it applies to providers and agencies that
qualify as “covered entities” for purposes of the law. In the HIPAA context, “covered entities” include health
care providers who transmit any health information, including information about health care claims and
payments.123
HIPAA’s most important provisions are those designed to protect the privacy of health-related
information. Every covered person has several privacy “rights,” including (1) the right to receive a notice of the
privacy rules adopted by covered entities that acquire their health information; (2) the right to restrict certain
uses and disclosures of personally identifiable information; (3) the right to inspect and copy the information,
and amend it if necessary; and (4) the right to receive a description of any disclosures made.124 These rights
are extended not only to those persons who are treated, but to those who receive “diagnostic . . . care” and
“assessment . . . with respect to . . . mental condition or functional status”; such assessment presumably
encompasses forensic evaluations.125
However, HIPAA does not confer a right to prevent disclosure of one’s PHI, or even to receive notice of
the disclosure’s occurrence, when the disclosure is “required by law” and the disclosure complies with and is
limited by the relevant requirements of the law.126 Disclosures are required by law when they are demanded
by a court order, a court-issued subpoena, a grand jury, an administrative order, or any other entity that has
authority to order the production of records. (By contrast, a subpoena or discovery request issued by an
attorney rather than a court should only be complied with if “reasonable efforts” have been made to inform the
patient of the request, or a “qualified protective order” limiting further use and disclosure is obtained.)127
Health information may also be disclosed to law enforcement officers, without notice to the subject, if the
disclosure is necessary to identify criminals, obtain information about crime victims, report crimes on the
premises, or avert a serious threat.128 Furthermore, even when these exceptions do not apply, persons who are
in prison, who are “confined to psychiatric institutions for correctional reasons and who are not allowed to
leave,” or who are “under a mandate from the criminal justice system” never have the right to receive notice of
privacy rules, copy records, or receive an accounting of disclosures.129
Thus HIPAA recognizes many exceptions to its general strictures, even in the therapeutic context. Health
information obtained by forensic examiners is even less likely to be governed by the Act. A threshold question

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for forensic examiners is whether they are covered by HIPAA. Some have argued that HIPAA simply does
not apply to forensic practice, but those arguments are not particularly persuasive.130 However, HIPAA only
applies to a “covered entity.” The regulations define “covered entities” as “(1) health plans, (2) health care
clearinghouses, and (3) health care providers who electronically transmit any health information in connection
with transactions” for which the Department of Health and Human Services has adopted standards (emphasis
added).131 A psychologist (as an example) is a “health care provider”; however, if the psychologist acting as a
full-time forensic examiner does not “electronically transmit” health information (e.g., as a means of billing),
then HIPAA does not apply.132 Note, however, that if a mental health professional is covered by HIPAA in
his or her private practice and only does forensic examinations as an occasional part of practice, he or she is
covered by HIPAA in all respects; the only significant exception to this rule is if the examiner works for a
“hybrid” entity, which permits an entity to declare part of what it does as HIPAA-covered and part as
excluded.133
If the forensic examiner is covered by HIPAA, an individual examined by that professional may have a
right of access to the examiner’s information. Some commentators have argued that HIPAA provides forensic
examinees with broad rights of access, while others have suggested that these rights are more limited.134 The
relevant regulations provide that examinees do not have rights of access to the following:

Psychotherapy notes, which are the personal notes of a mental health care provider documenting or
analyzing the contents of a counseling session, and which are maintained separately from the rest of the
patient’s medical record.
“Information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action
or proceeding.”135

The latter provision, at the least, protects from disclosure any aspect of the examination report that is “work
product” reflecting litigation strategies and lawyer “mental impressions.” It may not, however, protect from
disclosure to the examinee underlying health-related information.136
Finally, because HIPAA does not include a private cause of action for its violations, a forensic examiner
covered by HIPAA cannot be sued for damages by someone alleging a violation of the Act. Given that many
forensic examiners will not be covered by HIPAA, and given that no private cause of action exists, HIPAA is
not likely to affect the practice of most forensic examiners.

4.05. ETHICAL CONSIDERATIONS IN THE EVALUATION PROCESS

CASE STUDY 4.2

You are a mental health professional who works at a state forensic facility, but you also maintain a private practice outside the hospital. In
your private practice, you have provided individual therapy for several months to John Doe, who is going through a divorce. An attorney
representing Mr. Doe calls and requests to retain your services as an expert witness in an upcoming custody hearing; she asks that you
evaluate Mr. Doe regarding parental fitness and be prepared to offer an opinion—one that she hopes will support his request for legal and
physical custody of a minor child. The attorney advises that Mr. Doe has agreed to this arrangement.

Questions: What are the relevant considerations in your decision whether to accept this referral? Assume that you take the referral, and
that during the divorce process, Mr. Doe and his estranged wife have a physical altercation resulting in Mr. Doe’s arrest and placement in
jail, whence he is referred to your forensic facility for a court-ordered evaluation regarding competence to proceed. What factors would you

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consider in deciding whether to conduct this evaluation as part of your duties at the forensic facility? Assume that you can arrange to have a
colleague perform the evaluation. What factors should you or your colleague consider in becoming involved in the treatment of Mr. Doe in
the forensic facility if he is ultimately adjudicated incompetent? If Mr. Doe is convicted, what factors should govern your colleague’s
actions if the state later requests that she testify at the sentencing hearing?

CASE STUDY 4.3

You are a psychologist whom the court has ordered, upon motion of the prosecution and the defense, to evaluate Mr. Smith’s competence to
proceed and mental state at the time of the offense. Your report is to go to all parties. Mr. Smith’s current charge is attempted murder of a
law enforcement officer; he also has a three-page rap sheet that lists prior arrests and convictions on charges that range from property
crimes to violent offenses. According to the police report, Mr. Smith was shot in the head during his altercation with the officer. Since his
brain surgery, Mr. Smith reports total amnesia for the time surrounding the alleged offense, as well as transient confusion and
disorientation. His wife, whom he married three months before his arrest, has reported that he appeared very regressed during recuperation,
having to relearn self-care habits (use of the toilet, dressing, feeding). Based on this information, a previous evaluator recommended that
Mr. Smith be adjudicated incompetent to proceed.
When you arrive to interview Mr. Smith, you identify yourself and your purpose. Mr. Smith responds with a grunt and the statement,
“One of you has already been here.” He then says that he doesn’t feel like talking today because he feels “down.” You express sympathy for
his situation and comment that if you were in his situation, you would feel depressed and disoriented, too. He responds, “Yeah, plus my wife
is leaving me.” When you ask him why, he refuses to answer. You share with him your intention to tell the court that he is not cooperating
with the evaluation, but he persists in his refusal to answer questions, and ultimately tells you to leave. Suspicious now that Mr. Smith may
be malingering, you contact his wife for confirmation of her earlier observations about her husband’s behavior during convalescence. The
wife is vague about confirming or denying her previous reports; she speaks cautiously and inquires whether her husband might ever learn of
her answers to your questions. You confirm that you will identify her in your report as a data source, and you may well make reference to
your conversation with her in your report or testimony. In response, the wife blurts out, “I did what I thought was the right thing to do at
the time,” but she refuses to provide substantive responses to inquiries about her husband’s behavior and ability. She mentions, however,
that the defendant threatened to hurt her and her children if she did not “play along with his story.” When you ask if she is scared, she says,
“He’s killed before,” but refuses to say anything further.

Questions: What is the propriety of your actions to this point? Was there anything unethical about empathizing with Mr. Smith’s
situation? Should you have confronted him more bluntly? Must you reveal the wife’s allusion to another crime? Can you mention the wife’s
comments in support of an opinion that Mr. Smith is malingering? If so, must you tell the wife you are doing so?

The preceding sections of this chapter discuss a variety of legal principles that may influence forensic
evaluation practice. Forensic clinicians must also be aware, however, of potentially conflicting concerns that
derive from professional practice standards and codes of ethics. In this section, we examine the most
significant such concerns and discuss them in light of the parallel (and sometimes competing) legal principles.
Although no single set of standards applies to all mental health professionals, the professional
organizations representing various health care disciplines—medicine, nursing, psychology, and social work—
have independently established general ethical guidelines for their respective members. In addition, several
national forensic specialty organizations have developed explicit guidelines for forensic practice. These are the
Ethics Guidelines for the Practice of Forensic Psychiatry promulgated by the American Academy of
Psychiatry and the Law (AAPL),137 the Specialty Guidelines for Forensic Psychology,138 and the Code of
Ethics of the National Organization of Forensic Social Work (NOFSW).139
Although these documents vary somewhat in breadth, detail, and organization, they cover many of the
essential ethical concerns that arise in providing forensic mental health services, particularly forensic
evaluations, reports, and expert testimony that result from such evaluations. The remainder of this chapter is
organized around these essential concerns, and excerpts from the Specialty Guidelines for Forensic Psychology

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and the AAPL Ethics Guidelines are presented to guide the discussion. Readers are urged to obtain and
employ the full guidelines as appropriate to their respective disciplines and practices.

(a) Competence and Qualifications in Forensic Practice

According to the AAPL Ethics Guidelines, “Expertise in the practice of forensic psychiatry is claimed only in
areas of actual knowledge and skills, training and experience. . . . [T]here are areas of special expertise that
may require special training and expertise.”140 The Specialty Guidelines for Forensic Psychology impose
similar obligations upon psychologists.141
With relatively few exceptions, mental health professionals who perform forensic evaluations need more
than basic clinical training. In addition to a good generalist training, evaluating litigants in the criminal and
civil justice system requires, at a minimum, familiarity with (1) the legal system [as discussed in Chapter 2];
(2) specialized forensic assessment approaches and instruments [as discussed in Chapter 3]; (3) the legal
doctrines that give relevance to the mental health evaluation [described in Parts II, III, and IV of this book];
(4) research about syndromes, propensities, and similar phenomena to which mental health professionals
receive limited exposure during their basic clinical training [Parts II, III, and IV]; and (5) the demands of
being an expert witness [Chapter 18].
The need for specialty training for forensic mental health practice has been noted in the professional
literature,142 and it is reflected in the development of subspecialty board certification in forensic psychiatry143
and special programs in psychology and law.144 Most mental health professionals will obtain the significant
part of their forensic knowing through postdoctoral training activities—self-study, on-the-job opportunities
with experienced colleagues, and continuing education programs.145 But, if desired, national board
certification is available through the American Board of Psychiatry and Neurology146 and the American
Board of Professional Psychology and the American Board of Forensic Psychology.147 Obviously, if the state
in which a clinician hopes to practice offers training and continuing education programs, the clinician should
take advantage of the opportunity, especially if certification as a forensic examiner is offered [see § 5.04(b)].148
Analogous certification is provided for social workers.149 Finally, the NOFSW, the AAPL, and the American
Psychology–Law Society sponsor annual conferences that focus significantly on forensic issues. A wealth of
reading material on forensic issues also exists, as evidenced in the wide array of books and specialty journals
cited in this book.
Whether through formal or informal training, clinicians should come to understand the special demands of
the various types of cases in which they intend to become involved. Here, we offer three brief and (we hope)
somewhat obvious comments. First, competence in one area of forensic evaluation practice does not
necessarily establish one’s competence in another area. Some areas of forensic practice are significantly
dissimilar from one another (e.g., insanity evaluations vs. parental fitness for custody evaluations). Clinicians
should obtain training that allows them to provide services competently in any area in which they practice.150
Second, an important but sometimes underemphasized aspect of forensic competence is an appreciation of
the limits of what the behavioral and medical sciences have to offer the legal system. Grisso has noted that the
development of new forensic research and technology is “a double-edged sword. Acquiring the benefits of a
more rigorous empirical approach often requires that [forensic clinicians] also acknowledge more clearly the

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limits to the reach of their testimony.”151 This aspect of competence, stressed throughout this book [see in
particular § 1.04], may have particular import in situations in which attorneys seek to use expert testimony in
novel ways (e.g., assertion of a posttraumatic stress “defense” or a seizure “defense”).152
Finally, as infrequent but sobering anecdotal reports attest, the accumulation of workshop certificates and
board diplomas is no guarantee against error or marginal clinical practice. In one case, a board-certified
forensic psychiatrist opined that as a result of having his billing account turned over to a collection agency, the
plaintiff developed a posttraumatic stress disorder. In another case, a board-certified forensic psychologist
developed a report opining that the defendant was incompetent to proceed as a result of a suspected brain
lesion. The testing that “revealed” the precise location of the brain lesion consisted of one subtest from the
Verbal portion and one subtest from the Performance portion of the Wechsler Adult Intelligence Scale—
Revised. In yet another instance, a board-certified forensic psychologist promulgated the “M’Naghten
competence test” in an effort to standardize interviews for competence to stand trial.153 The title of the
proposed “test” invited confusion by using a name (M’Naghten) historically associated with insanity rather
than competence, and its content cited out-of-date rules of criminal procedure as authority.
Even when mental health professionals have the relevant expertise (i.e., training and experience) to perform
certain types of forensic evaluations, they must also be mindful of legal constraints on practice. Although most
forensic clinicians are likely to be knowledgeable about the legal guidelines (e.g., with respect to licensing or
certification) within their states of residency, they do not always know about limitations on practice in states
in which they do not hold a professional license.154 Surveys have revealed widely differing rules and
regulations concerning such “temporary” forensic practice by psychologists. Tucillo and colleagues reported
that a minority of states expressly forbid interjurisdictional practice; some permit temporary practice limited to
a certain number of days (e.g., 30 days per year); and others require that the visiting expert obtain supervision
by a local licensed practitioner.155 They also reported, “In many cases, requesting permission to engage in
temporary interjurisdictional practice is as rigorous as the application process for permanent licensure,” and
that some states’ regulatory boards required “an ‘ethical clearance’ from the visiting psychologist’s regulatory
board before permission for interjurisdictional practice is granted.”156 Clinicians who ignore local practice
requirements expose themselves to an array of potential punishments, including disqualification to testify,
professional disciplinary action, denial of liability insurance coverage, and civil or criminal liability.157 Thus
forensic examiners who anticipate accepting referrals from across state lines would do well to apprise
themselves first of the relevant local practice regulations.158

(b) Clarifying Referrals with Legal Agents

Assume now that the mental health professional is fully competent to carry out the forensic task at hand.
During the initial contact with the legal representative of the party seeking services, the clinician may still
need to clarify a number of issues pertaining to roles, objectives, fees, and prior relationships, although the
attorney’s experience in working with mental health professionals and the type of litigation involved may
affect the extent to which this is necessary.159

(1) Consultant Roles and Evaluation Objectives

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From the mental health professional’s standpoint, role expectations and evaluation objectives are probably the
most important matters to be sorted out during an initial discussion with an attorney seeking forensic
expertise. As indicated in Chapter 1, forensic roles can vary enormously, depending on the extent of the
mental health professional’s training and expertise. For example, in addition to the traditional expert
evaluator/witness role, some clinicians may have expertise relevant to trial advocacy issues, such as jury
selection and witness preparation.160 An ethical problem arises, however, when the attorney who retains a
clinician initially for forensic examination services also wants assistance with trial advocacy activities. Even if
the clinician has the abilities needed to perform such functions, consultant roles that involve trial advocacy
issues “can predispose the psychologist to identify with the client’s cause and lead to a loss of objectivity.”161
Taking both roles (consultant and testifying expert) can easily undermine the apparent, if not actual,
objectivity of the clinician as a testifying witness, whose role should be to assist the decisionmaker, not the
retaining attorney. Because the idea that a forensic examiner would fill both types of roles may seem natural to
many attorneys, this issue should be discussed explicitly at the initial contact. Such discussions provide the
basis for later attorney–expert discussions (or reminders) about the range and scope of the clinician’s activities
when serving as a forensic examiner and expert.162
Clarification of the precise legal topic to be addressed in the evaluation is also crucial, for three reasons.
First, as discussed in the previous section, clinicians should not take on an evaluation for which they do not
have the requisite knowledge and skills. To advise the attorney of the extent to which their expertise will be
useful, clinicians need to discover the motivation for the referral. In doing so, even a clinician with solid
credentials on a particular forensic issue may find that the angle or theory the attorney seeks to advance would
draw the clinician beyond the boundaries of his or her expertise. For example, some clinicians who are quite
competent and confident testifying in insanity cases based on traditional medical model formulations may
nonetheless feel uncomfortable with a case in which the attorney intends to pursue a novel theory (e.g., a
“premenstrual syndrome” or “black rage” defense) with which they are not familiar. Advising the attorney of
such concerns at the beginning of the consultation may persuade the attorney to seek another evaluator.
Second, clarifying issues may help prevent later conflict about the conduct of the evaluation or testimony.
For example, the mental health professional should explore any particular expectations that the attorney has
about the methods and rigor of planned evaluation procedures. Some attorneys seek to have examiners use
particular tests or procedures because they believe that juries can be more readily persuaded or influenced if a
tangible product (e.g., a brain imaging result or a test protocol) can be displayed at trial; indeed, the attorney
may insist on such a procedure, whether or not the clinician believes that it can contribute to the evaluation or
is skilled in its use.163 Clinicians may also want to discuss how they deal with testimony on the ultimate issue,
so that attorneys can judge whether the anticipated testimony will enhance the case presentation [for more
discussion of the latter issue, see § 18.07]. Also, a mental health professional who anticipates using procedures
whose validity is likely to be challenged (e.g., recently developed assessment tools) should so advise the
attorney, so that the attorney can deal with admissibility concerns early in the litigation [see, e.g., § 3.07].
Clarifications such as these at the early stages of consultation will often facilitate appropriate collaboration as
the case proceeds.
A third reason for clarifying issues at the outset is that, as discussed in detail at other points in this chapter,
the scope of the evaluation affects both the type of notification the clinician must provide the examinee and

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the extent to which information learned by the clinician must be kept confidential. In this regard, the clinician
should be particularly alert to referrals that are overly vague (“I need a psychiatric workup on my client”).
When such referrals are received, consultation with the referring source (i.e., one or both attorneys, the judge,
or all three) is advised. Even when an evaluation request seems clear, such consultation is useful. For example,
the attorney who has moved for an evaluation or the judge who authorizes it may have a particular issue or
range of issues in mind, but the court clerk may have used standard (and perhaps dated) form orders that fail
to reflect the specific issues for which expertise is needed.
Of course, if an examinee does not have an attorney, clarification of the examiner’s role is difficult, if not
impossible. If the individual has not had an opportunity to confer with an attorney about the evaluation, the
evaluation should be postponed until that meeting can be arranged.164 If no counsel has been retained or
appointed, the mental health professional should go through the proper channels to notify the court and defer
the evaluation until legal consultation can occur. In criminal cases, these steps would seem to be compelled by
Estelle v. Smith [see § 4.03(a)]. In civil cases, they are mandated by fairness: Examinees who do not have legal
representation may not be able to understand the nature of the evaluation, and therefore may be unable to
adequately protect themselves or give genuine consent.

(2) Professional Fees

Another factor that, outside government or agency settings, almost always requires clarification is the fee
structure for professional services. The clinician must make clear to the examinee or the retaining attorney
what the fee structure will be (e.g., hourly or by the type of service rendered), who is responsible for payment,
the cost of specialized tests, how unanticipated services will be compensated, and when payment should be
made (e.g., up front, in installments, or at the completion of services).165 Practical concerns related to these
aspects of billing are discussed in § 5.06(a), on operating a forensic practice.
Occasionally, an examinee’s straitened financial situation may affect the clinician’s willingness to take a
case. Relevant in this regard is the fact that the AAPL Ethics Guidelines prohibit forensic examiners from
contracting to provide services on a contingency-fee basis,166 and the Specialty Guidelines for Forensic
Psychology strongly urge practitioners to avoid them.167 As an ethical matter, forensic evaluators should not
agree to financial arrangements in which their fees are paid only if the party retaining them prevails.
Furthermore, some courts have held that such arrangements, when made by physicians, are void on public
policy grounds.168 Contingency arrangements are most likely to be proposed in personal injury cases in which
an indigent (or at least not wealthy) plaintiff will have sufficient funds to pay for litigation expenses only if an
award or settlement is paid by the defendants. Such arrangements trigger a conflict of interest, or at least the
appearance of one, because they create a significant temptation to give an opinion that favors compensation
for the plaintiff (and therefore compensation for the expert). In other words, contingent arrangements make it
look as if the examiner is selling his or her opinion. This problem can only be avoided by making clear in the
agreement that the lawyer or law firm is responsible for the expert’s fees, not the examinee. The expert’s fees
then become part of the up-front costs committed by the law firm that must be paid, regardless of the
outcome of either the forensic evaluation or the case itself.
This “hard-line” stance on contingency-fee arrangements may limit an indigent litigant’s access to forensic

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evaluations. It might also curtail class action litigation on important public policy issues involving groups
represented by small or not-for-profit legal organizations. Rather than yielding on the prohibition against
contingency arrangements, however, forensic clinicians may wish to provide services pro bono and devote a
portion of their practices to such cases.169 Under such arrangements, reimbursement might consist of travel
expenses and possibly a nominal fee, with no expectation of reimbursement at one’s hourly rate for time
committed to the case. Clinicians may also elect to do pro bono forensic work out of a desire to further the
public good, or in the hope that providing such services will advertise their expertise to attorneys who might
retain them on properly remunerated matters. Potential problems with providing pro bono or very-low-fee
services include the temptation to cut corners and provide only adequate work, resentment if requested
services become unexpectedly time-consuming, letting one’s zeal for a “good cause” interfere with one’s
objectivity, and creating an expectation among users of forensic mental health work that high-quality services
can be had for little or no cost.170

(3) Prior Relationships

Mental health clinicians also have an obligation to disclose current or prior activities, obligations, or
relationships that might produce a conflict of interest in the case or the appearance of such a conflict.171 For
example, an attorney might call a clinician who has been providing therapy to the attorney’s client and request
that the clinician become involved in a case as a forensic examiner. Another example: An attorney may contact
a clinician to serve as an expert witness in a malpractice case against an agency that formerly employed the
clinician. In the first example, the preexisting therapeutic relationship with the examinee should discourage
the clinician from accepting the referral, to avoid problems of multiple relationships with conflicting ethical
duties [see § 4.05(c)(2)].172 In the second example, the attorney should be alerted to the possible appearance
of conflict of interest that stems from the clinician’s prior employment.

(c) Confused Roles and Dual Roles

Before beginning forensic evaluations, examiners should inform examinees that although they are mental
health professionals, they are not the examinees’ “doctor.”173 Due both to training and to the socializing forces
within the mental health professions, clinicians are disposed to be helpers. The usual focus of a therapeutic
evaluation is to develop strategies that advance the patient’s psychological growth and well-being. Alleviating
symptoms of mental disorder or helping the patient cope better with stressful situations are among the
primary concerns of the caregiving professional. These goals and objectives are typically discussed and
developed collaboratively by the clinician and patient. The therapeutic relationship and the trust that it
engenders are viewed as positive developments.
As Chapter 3 discusses in detail, participation in forensic evaluations can feel strange to clinicians who are
strongly committed to this helping posture. First, the purpose of forensic evaluations is dictated by third
parties (e.g., courts, attorneys, disability insurers) who are usually not present for the evaluation. How and
whether an evaluation’s results will advance the examinee’s personal goals or objectives is often secondary or
merely incidental to considerations of legal strategy and the mandates of the rules of evidence.

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 Second, even if these legal considerations are not a hindrance, the complexities of issues raised in forensic
evaluations and the conflicting interests of the social institutions and individuals involved virtually assure that
clinicians will not feel they are “helping” examinees—at least in the usual sense. In child custody proceedings,
for example, a clinician may feel conflicted about providing data and recommendations that potentially
enhance the well-being of one or more family members at the cost of increased psychological discomfort for
others. In guardianship proceedings, the clinician’s assessment may indicate that a guardian be appointed to
protect an elderly person’s accumulated material resources, possibly at the expense of that person’s sense of
autonomy, competence, or self-worth. In criminal court proceedings, a clinician’s findings that the defendant
satisfies the jurisdiction’s criteria for being competent to proceed may clear the way for legal proceedings that
will lead to the defendant’s conviction and punishment.
Furthermore, the style and tone of clinician–examinee interactions in forensic evaluations is different from
those in common therapeutic interactions. A polite but skeptical, and occasionally confrontational, attitude is
essential to many forensic evaluations—particularly those in which evaluators have good justification for
suspecting less-than-candid responses and higher concern about how accurately the examinees are describing
things [see § 3.02].
For psychologists, one resolution to these considerations comes from their professional organization’s code
of conduct, which explicitly recognizes duties not just to individuals but to society. The problem then becomes
one of recognizing the various legitimate claims on the professional’s findings and establishing priorities
through a process of explicit role clarification.174 For psychiatrists, this issue is more complicated, because
“[t]he medical profession has long subscribed to a body of ethical statements developed primarily for the
benefit of the patient,”175 with the aim of doing good, alleviating suffering, and avoiding harm.176 Here as
well, however, reconciliation is possible. As Mossman notes, truthful psychiatric input into legal processes
promotes respect for the rationality and humanity of litigants, and thus fulfills the clinician’s categorical duty
to respect the humanity of examinees, even when the information psychiatrists provide supports criminal
convictions or civil sanctions.177
At the most general level, forensic evaluations occur under two circumstances: when the evaluation is the
examiner’s only contact with an examinee, or when the evaluation precedes or is subsequent to a therapeutic
relationship with the examinee. The following discussion considers specific issues related to each of these
situations.

(1) Forensic Contacts Alone

In most evaluations for the courts, the clinician’s involvement begins through contact with a court or an
attorney, and the clinician has no prior or ongoing relationship with the examinee. The assessment is
undertaken not to promote the individual’s well-being, but to assist the court in making a fully informed
disposition.
Although the examiner–individual encounter in these situations is not for therapeutic purposes, many
examinees do not fully grasp this fact. To prevent them from being misled or deceived, forensic evaluators
should try to dispel any beliefs or preconceptions that examinees may have about the evaluators’ “helpful”
intent. This clarification is important in any forensic evaluation, but especially when evaluators are examining

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criminal defendants ordered to undergo a court-ordered pretrial evaluation. Such individuals often will have
been detained in the unfriendly and, for some, unfamiliar confines of a jail. Contact with friends and family,
and even with their own attorneys (if they have counsel), may have been extremely limited. Such an examinee
may be the most vulnerable to misperceptions of the forensic evaluator’s role and to premature disclosure of
personal or sensitive material.
Although examiners should try to correct erroneous perceptions about their role and the purpose of the
evaluation, they should not feel precluded from approaching forensic examinees with understanding and
compassion. We disagree with Shuman’s argument that use of “reflective empathy” during a forensic
evaluation is unethical.178 Occasionally empathy may be necessary to ensure successful emergency
treatment.179 More commonly, it may be the only way to obtain information desired by the referring party
(consider Case Study 4.3). Although this is the very reason Shuman thought that the use of empathy is
“unfair,” in our opinion empathic questioning is not coercive and need not be improperly deceptive—as long
as the professional has told the examinee about the nature and purpose of the examination, and has identified
those who will have access to information obtained from it. Indeed, from an ethical standpoint, empathy
could be considered superior to the type of brusque confrontation that might otherwise be necessary to elicit
information from an examinee [see § 3.02(e)].
Nonetheless, Shuman’s concern that forensic examinees may be misled by a falsely sympathetic approach
bears keeping in mind. Clinicians should not knowingly allow examinees to believe that they are being
“helped.” Indeed, clinicians should do the opposite. As the AAPL Ethics Guidelines state, “Psychiatrists have
a continuing obligation to be sensitive to the fact that although a warning [that the psychiatrist is not acting as
the examinee’s “doctor”] has been given, the evaluee may develop the belief that there is a treatment
relationship.”180 To this extent, Shuman’s admonitions are very appropriate.

(2) Dual Forensic–Therapeutic Relationships

Sometimes a clinician will receive a request to serve as an expert witness in a case involving someone with
whom the clinician has a preexisting therapeutic relationship, as in Case Study 4.2. An adult therapy client
who has had difficulty in the workplace may file a civil suit for damages attributed to perceived discrimination
or hostile working conditions; the examinee’s attorney may at some point request that the therapist conduct
additional assessments or provide expert testimony regarding the “causes” of the examinee’s psychological
distress. Similarly, an attorney may ask a therapist to provide an assessment and provide an expert opinion
regarding the parental fitness of one or both parents seen in therapy prior to divorce proceedings.
Mental health professionals should be alert to situations that threaten to involve them in such dual
relationships, and, when possible, should decline the forensic evaluator role.181 The American Psychological
Association and the American Academy of Psychiatry and the Law discourage the clinician from serving as a
forensic expert for his or her patients, for several reasons.182 First, taking on the expert role violates ground
rules mutually agreed to at the beginning of therapy, regarding the objectives of the clinician–patient
interactions and the clinician’s avowed intention to protect confidentiality of patient disclosures. Moreover, to
function effectively as a forensic evaluator, the clinician would usually have to adopt a more challenging or
skeptical posture, which might threaten or undermine the therapeutic relationship. The patient would then

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lose a valuable ally needed to see him or her through the additional stress associated with the legal
proceedings, because the clinician has adopted a clinical posture fundamentally inconsistent with that of
therapist.
Of course, as noted in § 4.04(c), the patient’s privilege protecting against disclosure of therapeutic
communications is often waived because of his or her involvement in a legal proceeding. As a result, the
clinician may be required (e.g., by force of subpoena) to testify in the case anyway. However, by declining to
become involved as a forensic evaluator, the clinician may yet salvage the therapeutic role; to the extent that
the clinician testifies, it will be only as a “fact” witness (i.e., a witness who testifies to facts and opinions based
on information revealed in therapy). Although this approach may not eliminate the patient’s sense of betrayal
completely, at least it will be clear that the testimony was coerced by the court, rather than based on a
“voluntary” evaluation requested and paid for by the court or one of the parties.
Other obvious dual-role situations occur when the evaluative encounter initiates contact with the legal
system (a scenario also illustrated by Case Study 4.2). For example, a psychologist who conducts a presentence
evaluation of a sex offender may later be asked to accept the offender into therapy as a condition of probation;
a psychiatrist who evaluates an individual in a workers’ compensation claim may be asked to provide therapy
or other treatment to diminish the worker’s emotional problems; a plaintiff in a successful torts action later
may seek therapy from a mental health professional who examined him and testified at trial. In contrast to the
examples in the preceding paragraph, none of these examples describes an obvious conflict between the
evaluative and therapeutic roles; theoretically, at least, the therapy might proceed without being infected by
the earlier evaluative stance. However, a more subtle conflict may arise if formal or informal “arrangements”
lead to the evaluator’s being assigned to and paid for the treatment of those he or she evaluates. Only if the
subsequent therapeutic request is wholly unanticipated should it be accepted.
The qualification that dual-role arrangements should be avoided when possible is an important one,
however. In rural areas, where a small number of clinicians may provide all locally available mental health
services, some dual-role situations may have to be tolerated if services are going to be provided at all.183 Dual-
role situations may also arise in hospitals that provide treatment services to forensic clients (e.g., to restore
competence to proceed, or to care for persons adjudicated not guilty by reason of insanity); in these settings,
members of a client’s treatment team (to whom the individual may have disclosed dangerous propensities or
sexual fantasies) may be required to participate in, if not conduct, evaluations that are used to determine
discharge readiness. Similar role conflicts may arise in correctional settings, where clinicians who evaluate
and/or treat inmates for therapeutic purposes may also be involved in evaluations that inform parole board
decisions.184
In these settings, it may be difficult for mental health professionals to avoid dual-role status.185 Individual
clinicians’ roles may be dictated by state law, administrative policy, and organizational structure. Of course,
mental health professionals should alert facility administrators to ethical problems related to dual-role
assignments and work with them to design services in a way that minimizes the risk—for example, by having
mental professional A treat patients on unit A and conduct forensic evaluations of patients on unit B, while
mental health professional B conducts forensic evaluations of patients on unit A and treats patients on unit
B.186 Yet even when administrative policy promotes maximal separation of treatment from discharge
evaluation duties, concerns that discharge decisions be based on the most complete and relevant information

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dictate that some input from treating clinicians be available to the ultimate decisionmaker.187 In smaller
forensic hospitals with limited staff resources, a handful of clinicians may handle all treatment and evaluation
duties, and the roles of treater and evaluator with individual patients may be inextricably related.
In these situations, the clinician should take great care to inform the examinee/patient of the limits on
confidentiality in therapy imposed by the duty to perform collateral forensic evaluations. Because contact with
such a person may occur over extended periods in these settings, the clinician should periodically remind the
person of this dual-role obligation and clarify which role the clinician is playing in any particular session.188

(d) Confidentiality and Informed Consent

The ethical guidelines governing forensic psychiatrists state: “Respect for the individual’s right of privacy and
the maintenance of confidentiality should be major concerns when performing forensic evaluations.
Psychiatrists should maintain confidentiality to the extent possible, given the legal context. . . . Notice of
reasonably anticipated limitations to confidentiality should be given to evaluees, third parties, and other
appropriate individuals.”189 Similarly, forensic psychologists “recognize their ethical obligations to maintain
the confidentiality of information relating to a client or retaining party,” and “inform examinees about the
nature and purpose of the examination,” which may include “the purpose, nature, and anticipated use of the
examination; who will have access to the information; associated limitations on privacy, confidentiality, and
privilege including who is authorized to release or access the information contained in the forensic
practitioner’s records; [and] the voluntary or involuntary nature of participation, including potential
consequences of participation or non-participation, if known.”190
As the preceding discussion on dual roles shows, confidentiality is a major concern for forensic mental
health professionals. In treatment settings, clinicians consider confidentiality of paramount importance—so
much so that they are sometimes reluctant to disclose information obtained from a patient even when explicit
legal or countervailing ethical mandates direct them to do so (such as when a patient might harm another).
For reasons that should be obvious by now, such an attitude is unrealistic in forensic evaluation contexts.
Forensic evaluations inevitably and routinely involve disclosure of information to third parties. An evaluator
will have to report to the attorney and/or appointing court, and may have to testify about findings either in
deposition or in open court.
Some clinicians may have concerns that announcing explicit limitations on confidentiality will discourage
some examinees from freely disclosing all the information that the examiners seek. But any conflict between
the need to obtain information and the need to respect the examinee’s privacy and autonomy is settled.191
Both general ethical guidelines and the specialty forensic guidelines excerpted above make clear that forensic
examiners must advise examinees of reasonably foreseeable disclosures and uses of information that in the
nonforensic context would be confidential.192
After such a notice is provided, the decision whether to disclose personal material that might later become
public is one best made after being advised by the attorney of the legal implications for both disclosing and
withholding information. As discussed in § 4.02, the risks for disclosure vary, depending on (1) which side has
requested the evaluation; (2) the type of evaluation requested; and, in certain criminal contexts, (3) whether
the evaluation takes place before or after notice of an intent to use clinical testimony is given. The mental

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health professional can best facilitate the examinee’s understanding of these risks by telling the examinee of
these alternatives and making sure the examinee has an opportunity to confer with counsel. Some examinees
may elect not to discuss the case, to avoid public humiliation for themselves or their families.
A more difficult case for the clinician is the individual who appears to be cooperating only partially, out of
fear of revealing too much [see § 4.02(b)]. In other cases, external time constraints imposed by the court may
limit the examiner’s ability to develop a relationship with the individual that permits greater openness and
candor in the evaluation. In such situations, the examiner should consider foregoing a report, or submitting
only a very qualified report, rather than trying to elicit more complete information through false promises of
confidentiality.

(1) Basic Elements of Notification

The full scope of the notification that forensic examinees should receive varies with legal context and
jurisdiction. Notifications may range in form and in force from a Miranda-like notification, in situations such
as those involved in Estelle v. Smith, to statements that the individual has no legal basis for declining to
participate [see § 4.02(f)]. Obviously, good-faith professional judgments will be required on some occasions.
Forensic examiners would do well to consider the basic considerations that underlie informed consent in the
treatment context [see § 11.03(a)]. A clinician is obligated to provide information that a person would
reasonably want before making a decision about whether to participate, and to provide this information in
ways that facilitate the examinee’s comprehension. The clinician is not required to provide information based
on remote or unrealistic possibilities that do not have clearly negative implications for the examinee; the object
is to make possible the examinee’s participation following a brief but thoughtful dialogue, not to scare the
examinee or discourage participation by intimidating or overwhelming him or her with excessive detail and
speculation.
We suggest that when possible, a forensic examiner should provide an examinee with the following
information and ask questions to see whether the examinee understood:

1. The person for whom, or the entity or agency for which, the clinician is conducting the evaluation.
2. The party or parties that will receive the clinician’s report.
3. The legal issue that the evaluation will cover (e.g., “whether you are able to stand trial,” “whether you are
able to work”).
4. The fact that although the clinician is a “doctor,” the examinee is not the clinician’s patient and is not
undergoing evaluation for treatment purposes.
5. The examinee’s option not to answer questions, and the consequences of not doing so (e.g., a description
of the refusal in the report; a prohibition on presenting defense evidence).
6. The expectation that the examinee should perform at his or her best and be honest.
7. The fact that the examinee may ask for breaks and other reasonable measures to remain comfortable.
8. The person who, or the entity or agency that, is paying the examiner.

As is true for treatment, providing notification and obtaining consent do not simply involve obtaining an
examinee’s signature on a form. Rather, notification and consent constitute a process that requires discussion

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between forensic examiner and examinee to help the examinee understand relevant information, to aid him or
her in making an informed decision about participation, and to remind the examinee (when necessary) of the
nontreatment nature of the interaction. The forensic evaluator should keep a signed copy of the notification in
the file, and may wish to give a second copy to the person being evaluated.

(2) Additional Considerations Regarding Confidentiality in Criminal Cases

Evaluators may also wish to advise examinees of other considerations specific to their particular circumstances.
In criminal cases, protection against self-incrimination depends on the applicability of the attorney–client
privilege, if any, and the rules of evidence governing testimony by defense-retained witnesses. As suggested by
the discussion in § 4.03(b)(2), jurisdictions that follow Alvarez allow defense attorneys to exercise considerable
control over whether and how the results of a sanity evaluation will be used, which may allay some examinees’
fears about possible self-incrimination. In jurisdictions that follow Edney, no such assurance is available.
As noted in § 4.02, statutory protections may limit the prosecution’s use of a defendant’s statements
regarding MSO (or clinicians’ full documentation of defendants’ statements) until such time as the defense
places the individual’s mental condition at issue in the proceedings. Although such statutes restrict use of a
person’s disclosures, they often do not restrict prosecutorial or judicial access to those disclosures. Thus, in
these states, examiners appointed by the court or retained by the prosecution should tell examinees that
nothing is entirely confidential. Only in those jurisdictions (such as Virginia) that direct clinicians to avoid
including self-incriminating material in a prenotice report is complete confidentiality guaranteed, contingent
upon the defense’s decision to assert an MSO defense.

(3) The “Duty to Protect”

As discussed in § 4.04(b), most jurisdictions have recognized some form of Tarasoff rule that obligates
therapists to take reasonable action to protect the public from dangerous patients. Yet in many jurisdictions—
particularly those with statutes that specify the precise scope of the rule—the triggers and contours of the
obligation are unclear. Most importantly for purposes of this book, few jurisdictions have established whether
the Tarasoff duty to protect applies to nontreating forensic examiners. Examiners encountering examinees
who pose risks to themselves encounter a similar lack of clarity about how courts will construe their duties to
protect versus to disclose information for safety purposes.
The AAPL’s guideline on evaluating competence to proceed provides some guidance on these matters,
which, although directed specifically toward physicians, may also be helpful to forensic clinicians from other
disciplines as well:

Though they are not functioning as treating physicians when they assess adjudicative competence, psychiatrists still should act responsibly
concerning their evaluees’ health needs, in a manner analogous to ethics guidelines for work-related independent medical examinations set
out by the American Medical Association. . . . AMA opinion E10.03 states, “a limited patient–physician relationship should be considered
to exist during isolated assessments” of a defendant’s competence to stand trial. Within this limited relationship, a psychiatrist may elect to
tell an evaluee about important health information or problems discovered during an examination or to recommend that an evaluee seek
treatment from a qualified caregiver. If necessary (e.g., if the evaluee is confined in jail and needs treatment urgently or poses a high risk of
harming himself or someone else), a psychiatrist should facilitate the evaluee’s receiving further evaluation and follow-up care. In such cases,
the psychiatrist should also notify the defendant’s attorney and, if the evaluation was initiated by the court or prosecution, the court. In

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 taking such health-related actions for a defendant-evaluee, the psychiatrist should disclose the minimum information necessary to permit
appropriate management.193

(e) Autonomy and Privacy Concerns

Mental health professionals are committed to respecting the dignity and worth of all people. They also respect
the rights of individuals to privacy, confidentiality, and self-determination.194 Some implications of these
principles are explored below.

(1) Freedom of Choice to Participate

In therapeutic settings, mental health professionals acknowledge that competent individuals are free to
participate or refuse to participate in assessment procedures. In forensic evaluation settings, this assumed
freedom of choice may be restricted in two ways. First, the law may provide specific consequences for
nonparticipation. For example, as discussed in § 4.02(b), most states have provisions that bar the use of the
insanity defense by defendants who fail to cooperate with state-appointed examiners. In other contexts,
individuals may experience de facto sanctions. For instance, criminal defendants who refuse to participate in
court-ordered hospital treatment may end up staying in hospitals for lengthy periods, and thereby incur
confinement far longer than what they would experience if they were mentally capable of working with
counsel to resolve their cases.
Second, freedom of choice to participate may be a moot issue in some situations. For example, an
individual who is detained in a hospital pending a civil commitment hearing [see § 10.04(a)(1)] may not
consent to, yet may be unable to avoid, observation by clinical staff members that provides evidence
supporting commitment (e.g., voicing delusional beliefs or threatening staff members). Similarly, during the
brief period of explaining to a criminal defendant the purpose of a pretrial competence evaluation, the
defendant may appear guarded, voice persecutory delusions involving his or her attorney as a central figure, or
provide other evidence of mental disorder sufficient to indicate a compromised ability to assist counsel.
The ethically proper course of action when the individual refuses to cooperate is not clear. If, as in the
examples above, an evaluation of some sort can be completed and a report can be generated from observational
data, the question remains: Should the clinician offer a report of the findings? Clinicians who take a strong
stance favoring the individual’s right to nonparticipation may view the submission of a report based on
informal observation and third-party data as unethical. At an emotional level, such a position is easier to
maintain with examinees who appear to be making rational choices than it is when individuals are speaking
incoherently or harming themselves. Others may see no ethical dilemma in submitting a report or testifying
when informal observation and third-party data, by themselves, provide information sufficient to reach an
opinion with reasonable certainty, particularly when statutes or case law lay out clear obligations and reporting
deadlines for examiners (as is usually the case in civil commitment matters and evaluations of adjudicative
competence).
When the potential examinee has been informed of the purpose and nature of the evaluation and has
declined to participate, we recommend the following course of action, which overlaps substantially with
recommendations made earlier in connection with clarifying relationships and ensuring informed consent.

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First, the examiner should advise the examinee of any known sanctions that may be imposed as a result of a
refusal (e.g., a prohibition of the insanity defense). Second, the clinician should arrange for the individual to
talk with counsel for further explanations or guidance. Third, the examiner should advise the person whether
the examiner may or must form and provide opinions anyway, and how the refusal might affect the
completeness or validity of the evaluation. Fourth, the clinician should not use pressure or “scare tactics” to
coerce the examinee’s participation (e.g., threats by any staff members that “You’re going to stay in seclusion
until you talk to the doctor!”). If the examiner can ultimately reach a sufficiently grounded opinion and submit
a report, the examiner should explain the examinee’s lack of cooperation clearly, and should describe any
inferences drawn from the refusal or reasons for the refusal. Appropriate qualifications regarding the
completeness or validity of the findings should also be included.

(2) Invasion of Privacy

Whether a referral is for a voluntary or involuntary evaluation, orders for forensic evaluation do not constitute
carte blanche for examiners to do with individuals what they will. Clinicians should tailor their evaluation
procedures and craft their reports to avoid needless invasion of privacy. In respecting individuals’ right to
privacy, forensic clinicians must be careful to avoid two types of intrusions: (1) seeking or reporting clinical
information not relevant to the referral question, and (2) addressing forensic issues not raised in the referral
order. When mental health professionals conduct inpatient forensic evaluations, they must also be alert to the
possibility that staff members will provide information to the examiners that persons being evaluated would
not voluntarily disclose.
Recognition of the first problem should drive the examiner’s choice of evaluation procedures and
techniques, along with the type of questions the examiner asks. As noted in § 4.02, many situations justify a
forensic clinician’s delving into personal, secret, and sensitive material. However, some forensic referral
questions do not require such intrusive inquiry. Assessing competence to proceed [see Chapter 6] is a good
example. As noted earlier, the focus in a competence assessment is on the defendant’s current ability to
understand the nature and object of pending legal proceedings (that he or she is on trial, that his or her liberty
is in jeopardy, that the proceeding is adversarial, that certain parties have explicit roles and responsibilities,
etc.) and the defendant’s current ability to assist counsel in a reasonable manner (to answer questions with
relevant and coherent responses, to choose among alternative courses of action, etc.). In the majority of cases,
the examiner can complete the competence assessment in a relatively short time (one to two hours), using a
structured interview or assessment procedure designed expressly for competence evaluations. Examiners who
administer extensive psychological test batteries or routinely conduct in-depth, psychodynamically oriented
interviews routinely during such evaluations might well explore their motivations for doing so.
Occasionally some censorship of information may be advisable, even when the information is relevant. This
scenario occurs most often in evaluations of criminal defendants who reveal information protected by the Fifth
Amendment [see § 4.02]. One situation alluded to earlier involves defendants who, in the course of the
clinical interview, admit their involvement in other, as yet undetected or unsolved crimes (as in Case Study
4.1; consider also the wife’s information in Case Study 4.3). Although such information may be relevant to
establishing a clinical diagnosis (e.g., antisocial personality) or in making an appraisal of certain tendencies

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(e.g., violence-proneness), we recommend—in view of both privacy and Fifth Amendment considerations—
that the examiner avoid including material in a report that would allow the prosecution to establish new
charges against the defendant. Rather than provide detailed descriptions of previous assaults, global
statements (such as “The defendant reported some prior fights involving weapons”) should suffice for the
needs of the evaluation and will avoid unnecessary betrayal of the examinee.
The second aspect of invasion of privacy involves applying the evaluation findings or inferences to legal
issues other than those about which the individual was informed, as occurred in Estelle v. Smith. There a
psychiatrist obtained clinical information ostensibly for a competence determination that was later introduced
at the sentencing phase of a capital murder trial [see § 4.02(a)]. The clinician may violate an individual’s right
to privacy by soliciting cooperation in addressing one question and then applying the findings to a different
one.
As indicated earlier, the clinician may avoid problems of this type by seeking confirmation, early in the
referral procedure, of all forensic issues to be addressed. The court or the attorneys may intend that the
evaluation address other questions or provide general clinical information beyond what would be obtained by
adhering literally to the order. In such cases, amended orders can be obtained, or the examiner may provide a
much broader notification to the examinee to ensure that all intended uses of the data are explained. Where
the examinee has not been informed of a particular use for the evaluation findings, however, it would appear
to be a breach of ethics to submit amended reports of the type requested in the example above.
Finally, in some correctional and inpatient evaluation settings, a mental health professional must be alert to
invasions of privacy by overzealous staff members who inappropriately seize an individual’s personal items—
letters or diaries, for example—and secure them for the clinician conducting the evaluation. Consistent with
privacy considerations and respect for the individual’s right to volunteer or withhold information of a personal
nature, personal items should be returned to the patient and should not be examined or used by the forensic
examiner without first obtaining the person’s permission to do so. Note that if such information is somehow
included in a clinical report, it may not be admissible anyway, depending on local law and how it was obtained
[see § 3.07].

4.06. SUMMARY: COMPETENCE IN FORENSIC PRACTICE

As this overview reveals, forensic evaluations may be influenced by legal, ethical, and professional
considerations that seem foreign to, if not incongruent with, traditional clinical practice. As such, this
discussion underscores the point made in Chapters 1 and 3 that mental health professionals can benefit from
special training to become competent forensic examiners. They need to be sensitive to a variety of legal
principles, and aware of the specialty guidelines for forensic practice that have been promulgated by their
professional organizations. Training on these issues helps clinicians discern and appreciate the conflicts that
can arise in forensic practice, and may help them develop skills for coping with the pressures that may
influence or constrain the evaluation effort. This chapter’s subtitle—“The Mental Health Professional as
Double Agent”—alludes to the abandonment of the traditional therapist’s role and the assumption of divided
loyalties. Mental health professionals who conduct forensic evaluations without careful consideration of the
legal and ethical implications of their actions may truly become “double agents” in the worst sense of the term:

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They may offer, and then betray, the confidence of their examinees.
Table 4.1 outlines a series of steps that can guide clinicians through the legal and ethical issues discussed in
this chapter and in other portions of the text. We hope that this outline will help clinicians identify and avoid
some of the conflict situations that have been discussed. However, familiarity with the detailed considerations
that apply at each step is important as well; to this end, Table 4.1 includes citations to relevant portions of this
chapter.

TABLE 4.1. Steps to Ensure Ethical Evaluations

Relevant text by
Stage of evaluation section

I. Before the evaluation

A. Clarify ambiguous or overly general referral orders. 4.05(b)

B. Ensure that the person has counsel, and that counsel has talked to the examinee about the evaluation. 4.03(a), 4.05(b)(1)

C. Assess your competence to perform the evaluation. 4.05(a)

D. Assess conflicts of interest. 4.05(b)

E. Establish payment arrangements. 4.05(b)(2)

F. Do not review information known to have been illegally obtained that may jeopardize the admissibility of the 4.05(e)(2), 18.05
report.

II. During the clinical evaluation

A. Inform the examinee about:

1. All legal issues the evaluation will address. 4.05(d)(1)

2. The type of information and tests likely to be sought. 4.05(d)(1)

3. The fact that you are conducting an evaluation; dispel notions that you are providing treatment. 4.05(c)
4. The referral source and to whom the report will be sent. 4.04(a), 4.05(d)

5. The circumstances under which testimony may occur. 4.04(d)(2), 4.05(d)

6. The right to remain silent if it pertains (rare). 4.02(f)

7. Your duty to report ongoing or future crime (optional). 4.04(b), 4.04(d)(3)

B. Request the examinee’s:

1. Participation in the evaluation, and advise of any sanctions if participation is declined. 4.02, 4.04(a), 4.05(e)
(1)
2. Consent to obtain records, and obtain relevant signature (unless already acquired or not required because of 3.04(b), 4.04(e)
court order).

C. Respect privacy interests and Fifth Amendment concerns. 4.05(e)(2)

1. Keep clinical inquiries within the boundaries of the referral question.

2. Do not gratuitously address issues not in the referral order.

3. Caution the examinee to avoid information not relevant to the referral issue.

III. After the evaluation

A. Relevance should guide the content of reports and testimony. 4.05(e), 18.05(b)(2)

1. Avoid detail that might unnecessarily embarrass the person or jeopardize other rights.
2. Refrain from conclusions that are the factfinder’s responsibility. 1.04, 18.05

B. If the evaluation reveals evidence of a risk of harm to the examinee or to others, notify the appropriate personnel 4.04(b)
about the risk.

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 Although this summary provides the basic legal and ethical principles, it cannot anticipate all or even most
of the myriad dilemmas that might confront the evaluator or lawyer. Fortunately, other resources can be
consulted when help is needed. In particular, states’ attorneys general can provide advisory opinions regarding
the priority of conflicting legal principles; the ethics committees of the appropriate state and national
organizations can help resolve ethical quandaries; and trial courts (upon motion by an evaluator’s lawyer) can
help delineate application of constitutional and privilege doctrine in individual cases.

BIBLIOGRAPHY

American Academy of Psychiatry and the Law, Ethical Guidelines for the Practice of Forensic Psychiatry (May 2005), available at
http://www.aapl.org/ethics.htm.
American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, 57 AMERICAN PSYCHOLOGIST 1060 (2002) (a
version with the 2010 and 2016 amendments is available at http://www.apa.org/ethics/code.index.aspx).
American Psychological Association, Specialty Guidelines for Forensic Psychology, 68 AMERICAN PSYCHOLOGIST 7 (2013).
Donald N. Bersoff, Preparing for Two Cultures: Education and Training in Law and Psychology, in PSYCHOLOGY AND LAW: THE STATE OF THE
DISCIPLINE (Ronald Roesch et al. eds., 1999).
Estelle v. Smith, 451 U.S. 454 (1981).
Final Report of the National Institute of Mental Health (NIMH) Ad Hoc Forensic Advisory Panel, 12 MENTAL & PHYSICAL DISABILITY LAW
REPORTER 77 (1988).
Allen K. Hess, Accepting Forensic Case Referrals: Ethical and Professional Considerations, 29 PROFESSIONAL PSYCHOLOGY: RESEARCH &

PRACTICE 109 (1998).

Douglas Mossman, Forensic Psychiatry and Forensic Psychology: Ethics of Psychiatry, in 2 ENCYCLOPEDIA OF FORENSIC AND LEGAL MEDICINE
591 (2016).
National Organization of Forensic Social Work, Code of Ethics, available at http://nofsw.org/wp-content/uploads/2014/03/NOSFW-Code-of-
Ethics-Changes-2-16-12.pdf.
RANDY K. OTTO, KIRK HEILBRUN & ALAN GOLDSTEIN, ETHICS IN FORENSIC PSYCHOLOGY PRACTICE (2017).
Randy K. Otto & Kirk Heilbrun, The Practice of Forensic Psychology: A Look toward the Future in Light of the Past, 57 AMERICAN
PSYCHOLOGIST 5 (2002).
Daniel W. Shuman & Stuart A. Greenberg, The Expert Witness, the Adversary System, and the Voice of Reason: Reconciling Impartiality and
Advocacy, 34 PROFESSIONAL PSYCHOLOGY: RESEARCH & PRACTICE 219 (2003).
Christopher Slobogin, Estelle v. Smith: The Constitutional Contours of the Forensic Evaluation, 31 EMORY LAW JOURNAL 71 (1982).
Symposium, The Future of the “Duty to Protect”: Scientific and Legal Perspective on Tarasoff’s Thirtieth Anniversary, UNIVERSITY OF

CINCINNATI LAW REVIEW passim (2006).

United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984).

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CHAPTER 5

Managing Public and Private Forensic Services

5.01. INTRODUCTION

In the previous two chapters, we discussed methodological and ethical differences between forensic and
therapeutic mental health services. This chapter deals with a third way that forensic and therapeutic services
differ: the various practical issues involved in setting up and sustaining a forensic practice. Because of the need
to interact with the legal system, forensic mental health programs often face formidable implementation
problems (e.g., communicating with nonclinicians, integrating the legal system’s rules, uncertain scheduling,
security problems, and involvement with litigious people). As a result, leaders in law and mental health have
focused on developing a system of forensic services.1
This chapter begins by discussing the optimal staffing of such a system; we take the position that forensic
mental health should be regarded as a specialty within the community mental health system. Applying this
perspective, the next two sections of the chapter address systemic issues. Focusing on evaluations in criminal
cases,2 we describe the alternatives for forensic systems and discuss the process of establishing a statewide
evaluation system once a particular approach is selected. Next we discuss ways of alerting lawyers and judges
to scientific findings relevant to forensic issues, which can be a way of further improving the system. We end
with a brief treatment of how individual clinicians, whether part of such a system or on their own, might
establish or expand a forensic practice.

Problem 5.1

You are the director of forensic services in your state. Your governor has appointed you to head and select a
commission that is to recommend an ideal forensic evaluation system for your state. What considerations
are most likely to be important in accomplishing the commission’s objective? Whom will you want on your
commission?

5.02. THE CASE FOR SPECIALIZATION3

Whether the focus is on criminal or civil questions, our preference is for use of forensic specialists whenever
possible. By “forensic specialists,” we mean mental health professionals whose work consists primarily or solely
of conducting evaluations and consultation for the legal system. Our preference for specialists rests primarily
on (1) the possible adverse effects of forensic work on other aspects of mental health practice if the two are not
kept separate, and (2) the need for a special system to maximize legal professionals’ access to forensic
expertise. Although we also discuss how such a policy might result in a better match between the legal
system’s needs and experts’ knowledge, this positive effect is in the end only a secondary reason for our

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advocacy of specialization in forensic mental health.

(a) Avoiding Adverse Effects on General Mental Health Practice

Perhaps the strongest reason for reliance on specialists to deliver forensic services is that neither conventional
nor optimal therapeutic practice is fully compatible with forensic clinicians’ proper emphasis on uncertainty.
Maximum assistance to the factfinder requires adoption of a scientist’s mindset, with a skeptical view of the
validity of inferences and careful scrutiny of the probabilities involved [see § 1.04]. In contrast, although there
is no question that both the design and the delivery of therapeutic services should be informed by empirical
research, continual self-scrutiny—in effect, self-doubt—about the validity of one’s impressions and plans is
likely to undermine therapeutic efficacy.4
The techniques involved in forensic assessment also may require difficult adjustments for the clinician who
tries to do both types of work [see § 3.02].5 A forensic evaluation typically must be conducted in a relatively
short time, is not for the examinee’s benefit, often focuses on emotionally charged events, and commonly
involves matters about which there is motivation for the examinee and others to distort information. As a
result, forensic interviews often are confrontational and address traumatic events more quickly than would be
common in therapeutic assessment and intervention.
Role confusion is another likely outcome for the mental health professional who undertakes both forensic
and therapeutic work. Such a clinician may easily forget the fact that the ultimate client in the forensic
evaluation context is not the person being evaluated.6 Role conflict is especially likely if the clinician has
treated or goes on to treat someone he or she has evaluated [see § 4.05(c)]. Accordingly, professional
associations generally discourage such multiple relationships.7
Similarly, because of the exercise of authority that may be involved (e.g., directly in evaluations for civil
commitment, and indirectly in evaluations for sentencing and competence to be executed), forensic practice
may alter clinicians’ perspectives or reputations in ways that interfere with treating patients who are not
involved in the legal system. Indeed, this distortion may occur even when the clinician’s opinions do not
directly translate into loss of a defendant’s liberty or life. Mere association with the justice system may be
enough to compromise the clinician’s current and potential therapeutic relationships. To use the most blatant
example, the presence in a clinician’s waiting room of shackled defendants in orange jumpsuits who are
guarded by armed deputies is not likely to enhance the delivery of mental health services or the trust that
patients have in their therapist’s benevolence.8

(b) Building a Forensic Service System

Reliance on forensic specialists makes sense not only because of the potential adverse effects of forensic work
on general mental health practice, but also because of the effort needed to build a forensic service system.
Overcoming the obstacles to sustained relations between the mental health and legal systems requires a level
of commitment that may be unrealistic for clinicians for whom forensic work is a secondary task.
For example, in summarizing the efforts involved in establishing a community-based forensic services
system in Virginia, Melton and his colleagues concluded:

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 Successful implementation of community-based forensic services requires much more than simply training community mental health
clinicians in the techniques of forensic assessment. Notably, the system can fall apart without active involvement—or without cooptation—of
all the relevant parties (e.g., state mental health and court administrators, judges, prosecutors, defense attorneys, sheriffs, directors of
community mental health centers, guild organizations of the various mental health professions).9

As described in detail later in this chapter [§ 5.04], implementation of the Virginia program required not
only correcting economic disincentives for community-based services,10 but also developing and disseminating
model court orders, interagency agreements, and routine referral procedures, and arranging transportation and
security for defendants in custody. Most important, various legal constituencies had to be educated to
overcome their intuition that brief community-based evaluations are inherently low-quality and defense-
oriented. Consensus, much of it eventually incorporated into statutes,11 also had to be reached about complex
legal issues (e.g., whether clinicians could address problems of diminished capacity and whether prosecutors
could obtain potentially incriminating evaluation information at will).
The experience of Melton and his colleagues confirmed the conclusions of other observers of interaction
between the mental health and justice systems.12 If such interaction is to go smoothly, there must be
“boundary spanners”—staff members whose job is to provide the necessary coordination.13 Such positions are
necessary at both state and local levels. Clinicians who plan to undertake a limited forensic practice are
unlikely to have incentives to invest the time needed to create and sustain working relationships with
authorities in the justice system, master the practical issues raised by forensic mental health services, and
negotiate solutions to such problems.14

(c) The Need for Specialized Knowledge

The nature and complexity of a successful forensic mental health system suggest that clinicians who wish to
operate adequately in this area need a forensic focus. One might reasonably believe that a third reason for such
a focus is the need to acquire the relevant expertise; the level of familiarity with the literature that is necessary
for optimal education of the trier of fact, one could plausibly speculate, may be difficult to achieve amid the
demands of full-time general clinical practice. Yet, ultimately, this reason for specialization is not as
persuasive.
As discussed in § 4.05(a), forensic practice requires knowledge and skills more specialized than those
developed in general training as a mental health professional, regardless of one’s discipline or profession. In
addition to their general knowledge about mental disorders, appropriately trained forensic clinicians have
specialized knowledge about relevant legal standards and issues, forensic assessment methods, and the effects
of various dispositions. They probably also are more aware than general clinicians of potential legal threats to
examinees (e.g., use of the fruits of evaluations of competence to proceed for the purpose of discovering
incriminating information [see § 4.02(a)]). Indeed, the knowledge base of forensic clinicians about legal
issues, empirical research, and clinical theory commonly encountered in forensic practice is substantially
greater than that of community mental health professionals engaged in general practice.15 Such a finding
should be unsurprising. Simply put, most mental health professionals rarely encounter rapists and murderers
in either their training or their practice. Similarly, the information about legal issues, research, and clinical
practice presented in this volume is still not a staple of training in any of the mental health professions.

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 Furthermore, there is no doubt that within the forensic discipline, specialized knowledge is important. For
example, the knowledge and skill sets necessary for evaluating an older person who is the subject of a
guardianship proceeding, a three-year-old whose competence to testify is in dispute, a criminal defendant who
is subject to the death penalty, and a family in the process of a divorce are varied enough that it is hard to
imagine a mental health professional who would be qualified to conduct all such evaluations. Accordingly, the
best strategy for clinicians interested in forensic practice will normally be to identify the clinical phenomena or
populations with which they are most familiar (e.g., children and families, parents and parenting skills,
persons with severe and persistent mental illness, aging persons, adolescents with behavior disorders, persons
who have been sexually assaulted), and then specialize in the forensic pursuits that involve those issues or
populations.
The fact that forensic knowledge is specialized does not mean, however, that specialization of the type
associated with degree programs is necessary to acquire it. In fact, we found that it can be learned at an
acceptable level relatively quickly. Melton et al.’s experience in Virginia showed that a knowledge level about
criminal law commensurate with that of board-certified forensic psychologists can be attained by general
mental health clinicians (regardless of specific discipline) in an eight-day training program [see § 5.04(b)(1)].
Thus, although we favor development of a specialty in forensic mental health, our position is not based on
a belief that the skills involved are so difficult or the relevant knowledge so vast. Rather, our preference for
forensic specialty clinics is derived from the conviction that the organizational and role demands of forensic
assessment are often incompatible with general clinical practice. Acquisition of specialized knowledge,
including an appreciation of the philosophical, methodological, and ethical issues in forensic practice, can be
seen as a positive by-product of the specialization that is needed to establish and manage the intersystem
relations that a forensic practice requires.

5.03. TYPES OF EVALUATION SYSTEMS16

Given the wide array of forensic specialties, a number of forensic “systems” exist. We use the term here to
refer to state-run systems, particularly systems designed to assist the criminal justice process in answering
questions regarding competence and insanity, and in treating those found incompetent, insane, or dangerous.
Historically, these types of forensic services were not only specialized, as discussed in the preceding section,
but isolated from the community. States provided pretrial psychological evaluations on criminal issues through
court-ordered commitments to forensic institutions operated by the states’ departments of mental health.
Beginning in the 1980s, however, a number of alternatives to the institution-based, inpatient model emerged.
We first describe contemporary models of service delivery and the extent to which they have been adopted.
We then evaluate these models and discuss the related issues of quality assurance and professional training
that must be considered in the effective implementation of any model.

(a) Descriptions of Models

At least five models for delivering forensic evaluations on a systemwide basis can be imagined: the traditional
institution-based, inpatient model; the institution-based, outpatient model; the community-based, outpatient

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model; the community-based, private practitioner model; and a mixture of these models.

(1) Model I: Institution-Based, Inpatient Model

The traditional model is characterized by service delivery at a centralized location—either a maximum security
forensic hospital or a secure forensic unit within a state hospital. Transportation of the defendant to and from
the hospital is usually provided by law enforcement officers from the jurisdiction of the referring court. The
defendant is admitted for an evaluation that typically involves a multidisciplinary assessment over a period of
several days or weeks. In some settings, the final report to the court is developed by a committee or team that
is usually chaired by the attending psychiatrist and composed of other clinical and administrative staff
members. Because the defendant will have been in the institution for several days or weeks, during which time
collateral information (prior records, arrest reports, etc.) can be obtained and reviewed, the report to the court
is often available when the defendant is returned to the custody of the appropriate authorities. At most ten
states still depend primarily on the institution-based, inpatient model, typically relying on one or two
institutions to conduct forensic evaluations.
However, several developments have led other states to move away from this model. The inpatient
approach evolved and thrived in an era in which the standard response to all serious mental health problems
was long-term hospitalization.17 Today that attitude has changed. Litigation requiring states to provide
services in less restrictive settings18 and related policy changes have led to greater emphasis on providing
services, whether for treatment or evaluation, in outpatient settings. Many states also found alternatives to
inpatient forensic evaluations to be less expensive and more efficient. Finally, contemporary assessment
procedures, focused on specific functioning rather than global symptomatology [see, e.g., § 6.09(b)], have
shortened the evaluation process. These developments have led to new systems of forensic services.

(2) Model II: Institution-Based, Outpatient Model

In the institution-based, outpatient model—the dominant evaluation method in perhaps five states—the locus
of evaluations remains the forensic unit or state hospital site, but the evaluations are performed on an
outpatient basis. Because defendants are not admitted to the hospital’s inpatient service, many of the
procedures required for inpatient admissions that are not directly germane to forensic issues (e.g.,
examinations by medical and nursing staff, routine laboratory work) may be eliminated. In contrast to the
multidisciplinary evaluation usually relied on in Model I, the evaluation under Model II is often conducted by
one clinician, who uses structured interview procedures or assessment devices that focus on the areas of legal
functioning raised by the court order.19 In those cases requiring multiple sources of data (e.g., sanity
evaluations), the clinician arranges to gather the desired records and information by working with the court
(e.g., through requests that police reports be sent to the hospital), the attorney, or the defendant (e.g., by
asking for authorization to release prior records).
The defendant typically is returned to the jail (if bail has not been posted) following a two- to four-hour
evaluation, and the clinician examines and integrates the clinical interview data with the archival information
as it is obtained. Depending on the type of evaluation performed, the examiner’s report may not be available

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until several days after the evaluation is completed, but the entire process is still briefer than that associated
with a full inpatient evaluation (Model I).

(3) Model III: Community-Based, Outpatient Clinic Model

Another model, followed in more than ten states, combines the outpatient evaluation approach with
decentralization of services. Evaluations are provided through local agencies that serve either a legal
jurisdiction or a mental health catchment area, rather than providing services through a forensic hospital or
forensic unit at a state hospital. Some states, such as Virginia, have relied primarily on community mental
health centers (CMHCs). Other states, such as Ohio and Tennessee, have used private service providers as
well as CMHCs. In still other jurisdictions, court clinics operated by counties or municipalities provide most
pretrial examinations. When state mental health departments are involved in providing services under this
model, their role is primarily to negotiate contracts with service providers and to provide training and quality
assurance.
Under a community-based, outpatient model, evaluations of defendants in custody may be conducted
either at the agency, with transportation provided by local law enforcement authorities, or at the county jail.
Defendants on bond usually present themselves for evaluation at the agency. Evaluation procedures are similar
to those used in the hospital-based, outpatient model described previously. The community-based model,
however, facilitates follow-up interviews with the defendant, because of the proximity of the service provider.

(4) Model IV: Community-Based, Private Practitioner Model

A fourth model, describing the dominant evaluation system in perhaps ten states, also utilizes the outpatient
evaluation approach, but relies on neither state hospitals nor community agencies to provide services. Rather,
pretrial forensic evaluations are provided by individual practitioners located in the community, who are
appointed by the court. Usually these practitioners become known to the court through contacts with the clerk
of the court, who places their names on a list from which judges and attorneys select evaluators. As with
Model III, evaluations may take place either at the clinician’s office or at the county jail.
State mental health administrators’ involvement in this model may be quite limited, unless the legislature
requires the state agency either to provide financing for forensic evaluations or to assure their quality. In
Florida, for example, involvement by the Department of Children and Families in the pretrial evaluation
process is limited to training community practitioners and maintaining for the courts a list of mental health
professionals who have completed required training. Funding for pretrial evaluations resides with the courts.

(5) Model V: Mixed

The models described above offer alternative approaches to providing pretrial evaluation services. Several
states, probably as many as ten, have found it beneficial to mix models, for a variety of reasons. The peculiar
geography of Michigan, with its rural Upper Peninsula located far from its Center for Forensic Psychiatry in
Ann Arbor, led to its adoption of such an approach. To relieve the cost and burden on small-town police

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departments of transporting defendants to and from Ann Arbor for evaluations, the Center for Forensic
Psychiatry made provisions for a clinician to “ride the circuit” among the Upper Peninsula counties on a
periodic basis. Similarly, in an effort to capitalize on existing resources in various communities as well as the
forensic hospital, Alabama implemented a model of service that utilizes outpatient evaluations conducted by a
state forensic hospital, selected CMHCs, and various private practitioners.

(b) Evaluation of Models

Each of the models has specific strengths and weaknesses. Mental health administrators might consider a
number of factors when comparing the various models of forensic evaluation.

(1) Cost

Cost is a major concern of administrators comparing the utility of the different models. One would suspect
that outpatient evaluations are generally less expensive than inpatient evaluations, given the costs inherent in
an inpatient stay. This supposition is confirmed by a number of studies.
Although the information is clearly dated at this point, unpublished data compiled by Grisso and his
colleagues from a nationwide survey examining forensic mental health service systems in 1995 still provide, in
relative terms, useful cost comparisons. The investigators estimated that the cost per defendant of inpatient
evaluations ranged between $1,300 and $6,000, whereas a local outpatient evaluation system cost between
$350 and $650 per defendant, and a statewide hospital-based outpatient evaluation system cost between $175
and $350 per defendant.20 Grisso et al. also found that the site of the evaluation had some effect on the time
from the issuance of the court order to the completion of the evaluation: inpatient, 21–36 days; local
outpatient, 15–23 days; hospital-based outpatient, 15–35 days.21
Two other studies comparing inpatient and outpatient evaluation provided similar results. In their study of
an outpatient evaluation system implemented in Virginia,22 Melton et al. made three principal findings about
the efficiency of community-based evaluations. First, as expected, the outpatient evaluation program decreased
forensic hospital admissions. Specifically, during the pilot year of the community-based evaluation program,
admissions to state hospitals for forensic evaluations dropped 46% for those catchment areas using the
outpatient model, but admissions remained constant for defendants from comparison areas continuing to use
the inpatient model. Second, implementation of the community-based evaluation system did not result in a
substantial increase in the total number of forensic evaluations requested, although some increase was noted in
two areas adopting the outpatient approach. Third, the community-based system of evaluation cost almost
40% less than the institution-based system.
In his evaluation of the Alabama outpatient program, Poythress reported similar findings.23 The estimated
cost of outpatient forensic evaluations (approximately $300) was only a small fraction of the average cost of an
inpatient evaluation ($6,000 to $7,000) when the latter was calculated by multiplying the median number of
inpatient days required for an inpatient evaluation by the cost per diem of hospitalization. Unlike Melton et
al., Poythress also found that adoption of the outpatient approach resulted in a decrease in the number of
evaluation requests, and therefore presumably a further decrease in the state’s total expenditure on forensic

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evaluations. Poythress attributed this decrease in referrals to two factors: (1) the adoption of a fee-for-service
contract with local professionals, which reduced the number of “strategic” referrals (e.g., referrals to create a
delay in proceedings or to reduce jail overcrowding); and (2) the participation of community mental health
professionals in forensic evaluation training, which made them more sophisticated about competencies in the
criminal process and thus better able to avert inappropriate referrals. Poythress identified other financial
benefits stemming from adoption of the outpatient model, including more timely evaluations (resulting in
fewer legal delays) and decreased transportation and personnel costs borne by local law enforcement
authorities.
The studies reviewed all compared inpatient evaluation to outpatient evaluation. Grisso et al.’s data
suggest, however, that the various outpatient models may have different fiscal consequences as well.24
Specifically, Model II (outpatient evaluations at a hospital) may be the least expensive approach on a per-
evaluation basis. Furthermore, although there are no data to support the conclusion, it would be unsurprising
to find a difference between the two community outpatient options (Models III and IV), with evaluations by
CMHCs being less expensive than evaluations by private practitioners. Because of their mission of public
service and their coverage of at least some of their overhead expenses through basic program funding,
CMHCs may be more likely to contract with the courts to conduct publicly funded forensic evaluations at a
price that is below the market rate. Moreover, when evaluators do recover income above their costs in
conducting forensic evaluations, profits of CMHCs are probably more likely than those of private
practitioners to be “recycled” to support other community mental health services.

(2) Geography

Of course, our discussion of the relation between costs and model of service delivery is couched in terms of
averages. Other factors may affect the practicality—and therefore the cost—of a particular model in a given
state or community.
Geography is one such factor. States with largely rural populations might find the outpatient approach
impractical because of the difficulty in finding qualified professionals in some rural areas. Particularly when
courts expect particular professional credentials (e.g., doctoral training), the cost of attracting qualified
professionals may significantly increase the overall cost of community-based evaluations in some rural
communities. Even if mental health professionals are present in sufficient numbers, the cost per evaluation of
training and continuing education in forensic services may be prohibitive.
In such a situation, referral to a central evaluation center might be the most practical approach.
Alternatively, adoption of a mixed model might be considered. As already noted, Alabama has adopted a
model in which evaluations are performed in both central and community-based locations, depending on the
professional resources available locally.
However, the fact that low population density increases the cost per evaluation of attracting and training
professionals should not lead to the assumption that a centralized or mixed approach is optimal. In large states
(e.g., California, Florida, Texas) and states with mental hospitals far from large population centers,
decentralized systems will substantially reduce the costs associated with travel and will increase the evaluator’s
ease of communication with potential informants (in regard to the defendant’s history) and relevant legal

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professionals. Moreover, associated benefits of community-based evaluation systems (e.g., consultation to jail
administrators) apply at least as much to rural communities as they do to metropolitan areas.25

(3) Quality Assurance

Of course, in evaluating the worth of a forensic model, one must consider the quality of the evaluations likely
to be provided. The cost of quality assurance efforts may differ depending on the model.
One way of ensuring quality is by providing training for evaluators; research has confirmed the intuitively
obvious relationship between evaluation quality on the one hand, and knowledge of the relevant legal
standards and research literature on the other.26 The cost of providing this training may vary depending on
the evaluation model being implemented. By definition, the community-based approach requires that
clinicians throughout the state be trained to perform forensic evaluations. By contrast, the number of
clinicians to be trained is decreased and the logistics of providing updates are simplified when forensic services
are centralized.
Another approach to quality assurance is promotion of standard procedures for evaluation, report writing,
and peer review. Although the efficacy of this approach obviously depends on the quality of the standard
procedures, centralization may facilitate the standardization. However, this advantage should not be
overemphasized. Standardization can also be achieved by uniformity of consumers’ demands27—a process that
can be promoted through model court orders and training of the bar, the judiciary, and clerks of court.
Moreover, modern communication technology enables relatively easy continuing education and peer review,
and state CMHCs typically already have in place elaborate systems of quality assurance (relating in large part
to the recordkeeping necessary to meet the demands of third-party payors).
Research on the quality of evaluations under the various models is limited. It has been hypothesized that
evaluators in centralized locations (i.e., Models I and II) would reach more reliable results (given the small
group of evaluators and their likely similar training) and be more likely to have a higher threshold for finding
defendants incompetent or insane, because of their volume of business and their exposure to a greater number
of highly disordered individuals.28 But studies testing this and related hypotheses have reached mixed results.
One study found that differing systems did vary in the diagnostic and offense categories referred for
evaluation, and in the percentage ultimately adjudicated as incompetent.29 However, other studies have found
that consumers are equally or more satisfied with community evaluations,30 and another study found no
difference in capacity (on average) between defendants evaluated for competence on an inpatient basis and
those evaluated by private practitioners in the community.31

(4) Other Factors

In addition to relative costs and ease of administration, other, less tangible factors should be considered. These
factors generally point to the superiority of community-based systems over those that are hospital-based.

• Mental health ideology. A community-based approach is consistent with prevailing trends in mental
health services, which are based on the premise that mental health treatment should be available in, and
directed toward, the social systems in which people actually experience stress. In that regard, development of a

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program focused on forensic evaluations in a particular (e.g., criminal) context can foster the development of
forensic services in other (e.g., family) contexts,32 as well as treatment services for individuals involved in the
legal system (e.g., jail inmates).33
• Legal ideology and constitutional concerns. Insofar as evaluations can be provided in the community, a
hospital-based system violates the least-drastic-means principle34 and intrudes on defendants’ rights to bail, a
speedy trial, and the communication necessary for effective assistance of counsel.
• Facilitation of consultation. As the previous two points illustrate, forensic evaluation should be seen as
part of a consultation system in which both access to and use of information are facilitated by a community
base. For example, competence evaluation can be facilitated by consultation with the defense attorney
concerning techniques of communication with a difficult defendant [see § 6.09(b)(1)]. Local access can also
help many other people in distress—those seeking child custody, workers’ compensation, or Social Security,
for example—because they often seek help through the legal system. CMHCs typically are better situated
than hospitals to assist in resolving a client’s problems through consultation with legal authorities.
• Public support. Integration of forensic services into the regular mental health system minimizes the
possibility of their becoming or remaining de facto correctional services or “dumping grounds”35—the
neglected stepchild of the mental health system, chronically underfunded and understaffed.
• Recruitment of staff. In many states, state hospitals are stigmatized among mental health professionals as
well as the community at large. Integration of forensic services into the community mental health system may
increase the pool of qualified clinicians willing to consider specialization in forensic mental health.

5.04. ESTABLISHING A FORENSIC EVALUATION SYSTEM

The only conclusion that can be reached with certainty from this analysis is that a forensic evaluation system
based solely on Model I (inpatient evaluation) is not cost-efficient; preferably, the forensic system should
consist of one or more of the other models, or perhaps a combination of Model I and the other models. As
discussed previously, most states have moved toward an outpatient evaluation system or a multiple-tier system
with outpatient evaluations as the front-line resource. On the assumption that some form of outpatient
evaluation system is the system chosen, this section presents recommendations about its organization,
personnel, management, and financing.36

(a) Organization

Whenever possible, each tier of the forensic evaluation system should be prepared to offer the full range of
forensic services. Without such capability, abuse of the system is more likely. Clinicians in the less restrictive
settings may seek an “out” to have undesirable (e.g., unprofitable) services provided outside the community,
and attorneys too may attempt to use the ruse of unavailability of a particular service as a means of
hospitalizing defendants for illegitimate reasons (e.g., delay or detention without bail). Also, if particular
forensic services are unavailable, attorneys and judges may couch referral questions in terms of the services that
are provided (e.g., a competence evaluation) instead of what is really desired (e.g., emergency treatment or
development of information useful in plea bargaining).37 The result is often unnecessary and costly provision

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of a particular service that does not adequately fulfill the actual perceived need.
An additional concern in the design of the forensic service system should be finding the most effective way
to implement rules generally and the protection of defendants’ rights specifically. Many of the constitutional
rules governing forensic evaluations are subtle and complex; they are also frequently neglected. For example, as
described in § 4.02, the Fifth Amendment has significant implications for the conduct of forensic evaluations
and the contents and timing of reports; yet a number of states have failed to construct their evaluation process
accordingly. As another example, as described in § 4.03(b)(1), the Sixth Amendment imposes a duty on the
state to provide at least one professional “consultant” to an indigent defendant wishing to raise an insanity
defense—again, an obligation that is not well implemented by some state systems. Most fundamentally, the
notion that forensic services should be provided in the least restrictive setting has often been dismissed or
ignored by both lawyers and clinicians.
One implication of these observations is that procedures designed to protect defendants’ rights in the
forensic services system should be spelled out in statutes or regulations to provide clear guidelines for judges,
lawyers, forensic clinicians, and administrators.38 Incorporating statutory provisions into model court orders
provides further assurance that these rules will be implemented. Table 5.1 presents an example of a court order
once used in Virginia. Note how the form informs the judge and the clinician about the relevant substantive
and procedural law. Such orders make it harder for participants in the system to avoid the law’s dictates.

TABLE 5.1. Order for Psychological Evaluation

__________________________
COURT NAME AND ADDRESS

Commonwealth of Virginia v. __________________________

Type of Evaluation and Report

COMPETENCY TO STAND TRIAL: It appearing to the Court, on motion of

Commonwealth’s Attorney defendant’s attorney the Court
and upon hearing evidence or representations of counsel, that there is probable cause to believe that the defendant lacks substantial capacity to
understand the proceedings against him or to assist in his own defense, the Court therefore appoints the evaluator(s) listed below to evaluate
the defendant and to submit a report, on or before the date shown below, to this Court, the Commonwealth’s Attorney, and the defendant’s
attorney, concerning: (1) the defendant’s capacity to understand the proceedings against him; (2) his ability to assist his attorney; and (3) his
need for treatment in the event that he is found to be incompetent. No statements of the defendant relating to the time period of the alleged
offense shall be included in the report.

MENTAL STATE AT THE TIME OF THE OFFENSE: It appearing to the Court, on motion of
Commonwealth’s Attorney defendant’s attorney the Court
and upon hearing evidence or representations of counsel, that there is probable cause to believe that the defendant’s actions during the time of
the alleged offense may have been affected by mental disease or defect, the Court therefore appoints the evaluator(s) listed below to evaluate
the defendant and submit a report, on or before the date shown below, to the defendant’s attorney, and a summary of the report (which shall
not include any statements by the defendant about the alleged offense) to the Court and the Commonwealth’s Attorney, concerning the
defendant’s mental state at the time of the offense, including whether he may have had a significant mental disease or defect which rendered
him insane at the time of the offense. If further evaluation on this issue is necessary, the evaluator(s) shall so state.

Designation of Evaluator(s)

It appearing to the Court that the evaluation

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 can be conducted on an outpatient basis in jail or a mental health facility
must be conducted on an inpatient basis because:
no outpatient services are available
the results of outpatient evaluation (copy attached) indicate that hospitalization for further evaluation is necessary
a court of competent jurisdiction has found, pursuant to Va. Code §§ 19.2-169.6 or 37.1-67.3, that the defendant requires emergency
treatment on an inpatient basis at this time.
The Court therefore appoints the following evaluator(s) to conduct the evaluation:
__________________________
OUTPATIENT EVALUATOR(S) NAME(S) AND TITLE(S) OR NAME OF FACILITY

qualified staff at a hospital to be designated by the Commissioner of Mental Health and Mental Retardation or his designeee.
Hospitalization for evaluation shall not extend beyond 30 days from the date of admission.

DUE DATE AND TIME: __________________________

The Court further orders that the Commonwealth’s Attorney and the defendant’s attorney forward appropriate background information to
the evaluator(s) as required by law.

TO EVALUATORS AND ATTORNEYS: See reverse for additional instructions.

___________ __________________________
DATE JUDGE
File No. ___________

ADDITIONAL INSTRUCTIONS TO EVALUATOR(S) AND ATTORNEYS

Providing Background Information

1. Competency to Stand Trial: Prior to an evaluation of competency to stand trial, the Commonwelath’s Attorney must forward to the
evaluator(s):

(a) a copy of the warrant

(b) the names and addresses of the Commonwealth’s Attorney, the defendant’s attorney, and the judge ordering the evaluation
(c) information about the alleged crime
(d) a summary of the reasons for the evaluation request
The defendant’s attorney must provide any available psychiatric records and other information that is deemed relevant.
Va. Code § 19.2-169.1(C).

2. Mental State at the Time of the Offense: Prior to an evaluation of mental state at the time of the offense, the party making the motion for the
evaluation must forward to the evaluator(s):
(a) a copy of the warrant
(b) the names and addresses of the Commonwealth’s Attorney, the defendant’s attorney, and the judge ordering the evaluation
(c) information about the alleged crime, including statements by the defendant made to the police and transcripts of preliminary hearings, if
any
(d) a summary of the reasons for the evaluation request
(e) any available psychiatric, psychological, medical or social records that are deemed relevant.
Va. Code § 19.2-169.5(C).

Use of Information Obtained during Evaluation

No statement or disclosure by the defendant concerning the alleged offense made during the evaluation may be used against the defendant at
trial as evidence, or as a basis for such evidence, except on the issue of his/her mental condition at the time of the offense after the defendant
raises the issue pursuant to § 19.2-168 of the Code of Virginia. Va. Code § 19.2-169.7.

A second implication of these observations about the necessity of protecting defendants’ rights is that
lawyers knowledgeable about both mental health law and forensic assessment should be included in the design
and implementation of forensic services. Although clinicians and administrators are presumably familiar with

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the ethical injunction to protect civil rights of clients and others [see § 4.05], they are understandably more
likely to be concerned with, and knowledgeable about, the psychological than the legal aspects of forensic
assessment. Involvement of lawyers can reduce this gap in knowledge.
More generally, it is important to include representatives from all affected groups in policy formulation.
Devising a forensic system requires balancing competing interests—between prosecutors and defense
attorneys, between the courts and the mental health system, between defendants wanting to avoid
hospitalization and the public’s desire for safety, and so on. Accordingly, representatives of the diverse interest
groups involved (e.g., judges, attorneys, patients’ rights groups, hospital, clinic and jail administrators, and
forensic clinicians) should be asked whether given policies meet their needs. Although consensus may not be
possible, the stakeholders will have an opportunity to be heard, and the system planners and administrators
will obtain useful feedback. In Virginia, for example, an advisory panel of lawyers and forensic clinicians
provided invaluable assistance: advice about the design and politics of the system, proposals for model orders
and policies, and suggestions about the content of the state’s training program.39

(b) Personnel

A number of issues arise in connection with the personnel who staff and use the forensic system. Most
important among them are training and providing incentives to specialize.

(1) Training

As suggested earlier, a primary focus in the development of forensic services should be on intensive legally and
psychologically sophisticated training in forensic issues. This goal is mandated not only by the desire for high-
quality services, but also by ethical mandates [see § 4.05(a)]. Thus it is crucial to train mental health
professionals who already have general clinical competence in the additional knowledge and skills to function
as forensic clinicians.40
The nature of forensic training obviously varies according to the area of practice covered. Even subjects that
appear to have general applicability (such as ethical concerns or tips on testifying as an expert) should be fine-
tuned to fit the substantive area covered. Table 5.2 provides a short outline of a comprehensive training
program for clinicians who want to provide evaluations for the criminal justice system. Many training
programs might justifiably delete some of the subjects described.

TABLE 5.2. A Comprehensive Training Program on Criminal Forensic Issues

1. Introduction
A. Overview of topics for forensic evaluation
B. The definition of an expert [§§ 1.04 and 1.05]
C. Stages of the criminal process [§ 2.04(a)]
2. The Nature of Forensic Evaluation [Chapter 3]
3. Constitutional and Ethical Contours of the Evaluation Process [Chapter 4]
4. Competence to Proceed [Chapter 6]
5. Other Competencies in the Criminal Process [Chapter 7]
6. Mental State at the Time of the Offense [Chapter 8]

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 7. Sentencing [Chapter 9]
8. Other Uses of Clinical Evidence in the Criminal Process [§ 7.07]
9. Report Writing and Expert Testimony [Chapters 18 and 19]
10. Developing a Forensic Practice [§ 5.06]

Note. Section references refer to applicable parts of this book.

There must also be training of lawyers, so that they become discerning consumers. In Virginia, Melton and
his colleagues found that most lawyers did not have routine dealings with the mental health system. As a
result, their misconceptions about forensic practice were profound. Many lawyers believed, for example, that
psychological evaluations required at least a month in the hospital, that psychologists were not qualified to
perform forensic evaluations, and that neurological tests were necessary in every case. More surprisingly, many
lawyers, even very competent ones, were ignorant about the specialized provisions of mental health law.41 In
short, training of lawyers and judges must include attention not only to the prevailing state of the art in
forensic mental health services, but also to the relevant law.42
For both mental health and legal professionals, the training should be ongoing and should cover
developments in both the law and the behavioral sciences.43 It is obvious that an evaluation based on a legal
standard that is no longer in force cannot be valid, and assessments by a clinician unaware of new forensic
protocols or tests may be less valid than they could be. Focused training is needed to keep clinicians up to date
in both areas. Research suggests that changes in mental health law are unlikely to be transmitted quickly to
mental health professionals unless there is an active effort to disseminate the new law.44 Similarly, although
new clinical forensic information is usually found in nationally distributed journals or books, the average
clinician may not peruse the literature systematically.45
Lawyers and judges also need to be kept informed about new laws, changes in the forensic evaluation
system, and new research findings that help them make use of—or challenge—the opinions of mental health
professionals. As is the case with forensic clinicians, dissemination of new information, even legal
information, is not automatic for legal professionals,46 especially those whose practice seldom includes cases
involving criminal mental health law (or whatever area of law is involved).
The form of education may vary. In our experience, initial training programs are enhanced by use of case
problems, videos of actual or simulated evaluations, and participation in evaluations and mock direct and
cross-examinations. These can supplement outlines and excerpts from relevant legal and clinical materials (of
the type that led to the first edition of this book).
Continuing education can also take many forms. The Virginia experience in the 1990s, most components
of which still exist, provides a useful illustration. Developments in Mental Health Law was, and still is, a widely
distributed newsletter published by the Institute of Law, Psychiatry and Public Policy at the University of
Virginia, with funds provided by the state Department of Mental Health and Mental Retardation (now the
Department of Mental Health and Developmental Services). The Institute also sponsored an annual two-day
symposium on mental health law, which attracted about 200 mental health professionals and lawyers each
year. In addition, the Institute conducted periodic continuing education workshops for particular groups (e.g.,
annual sessions for special justices who hear civil commitment cases, and semiannual workshops for clinicians
trained and certified by the Institute in forensic evaluation). Institute faculty members made periodic visits to

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community mental health centers to talk with the forensic teams about problems they had encountered and
inform them of new developments. They also delivered lectures at continuing education workshops of
particular groups (e.g., trial judges) and at the annual meetings of judges, prosecutors, and defense attorneys.47
Other states also have adopted innovative approaches, often facilitated by forensic mental health institutes
in the respective state universities. For example, the forensic training program managed by the Law and
Psychiatry Program at the University of Massachusetts Medical School supports “mentoring,” in which an
experienced evaluator takes responsibility for monitoring the evaluations and reports of newer evaluators.48 In
several states, forensic examiners meet for a few days each summer. Such meetings improve the esprit de corps,
provide continuing education devoted to forensic matters that is delivered by nationally recognized
professionals, and allow attendees to share with each other problems they have encountered and strategies that
might prove helpful.
There is, of course, an empirical question about the relative effectiveness of various formats for training and
continuing education. Without such data, we offer no particular recommendation on formats that should be
used. Probably a combination of formats (as in the Virginia program) is optimal, because the level of prior
knowledge can vary with the particular audience.
For reasons that should be obvious, any training program, whether basic or supplementary, should usually
include both attorneys and mental health professionals as instructors. The law usually is best taught by lawyers
who understand its nuances, and forensic evaluation usually is best taught by mental health professionals. An
additional benefit of this interdisciplinary interaction is that members of each group are more likely to develop
a basic understanding of the other discipline.

(2) Incentives to Specialize

We already have explained our general preference for development of a forensic specialty. Although forensic
practice historically was not a popular career track among mental health professionals, this outlook has
changed significantly since the 1980s, in part because of changes in health care financing.49 As a result,
incentives designed to encourage clinicians to enter into forensic practice are not as important as they once
were. Even so, it may occasionally be necessary to provide such incentives; thus a brief discussion of different
approaches is provided here.
Most importantly, higher salaries or fees for forensic practitioners can be justified in view of the special
skills and knowledge necessary for forensic practice, the costs involved in pursuing such training, and the
increased safety risks that are sometimes attendant when working with criminal justice populations. Job titles
and “perks” are other ways of recognizing the expertise that competent forensic clinicians have attained.
The state should also provide certification of expert forensic clinicians. Certification can vary in rigor. In
Virginia, a clinician can be certified after completing a course such as that described in Table 5.2 and passing
an examination of forensic knowledge. In Massachusetts, the clinician must not only take the course and pass
the examination, but also make site visits to various forensic mental health services, perform several court-
ordered evaluations under the supervision of a state-approved supervisor, and submit work samples for review
by a committee of examiners.50 Numerous other approaches to certification exist.51
Certification has several advantages. First, it assists the court system in deciding who should be allowed to

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give testimony and file reports. Recall our argument in § 1.05 that the test for admissibility of experts’
opinions—whether the specialized knowledge of the expert will assist the factfinder in decisionmaking—
demands that judges take a functional approach to the question of whether the opinions of a particular expert
or class of experts should be admitted into evidence. The obvious practical difficulty with this approach is that
it increases the complexity of the decision a judge must make about the admissibility of a particular expert’s
opinion. Educational or professional credentials are easy to identify, but evaluating the level of specialized
knowledge and skills that an expert possesses (and its probative or prejudicial value in the case) requires more
extensive questioning of the expert and a more subjective and probably less reliable decision. The inefficiency
and possible unfairness thereby created can be diminished by stipulating that mental health professionals who
successfully complete the state’s forensic training and demonstrate their competence (e.g., by obtaining a
passing score on an examination on the relevant body of specialized knowledge, or successfully completing
evaluations and writing reports under supervision) are presumed to qualify as experts on those types of cases
covered in the training program. At the same time, this presumption should apply only in those types of cases
covered by the training program (e.g., competence and sanity cases) and be subject to rebuttal (if, e.g., a
certified clinician has not carried out an adequate evaluation of the specific case at hand).
A side benefit of a certification program is that the title “state-certified forensic examiner” may come to
carry a certain amount of prestige and serve as a recognition of the specialty. Thus a certification process may
be a low-cost way to recruit competent clinicians to forensic practice and provide an incentive for adequate
investment of time and energy in the training program. Another benefit is that the existence of veteran
certified clinicians can facilitate training via mentoring.52
To maximize the incentive to become certified, the state could stipulate that all referrals for initial, publicly
funded evaluations be made to certified forensic clinicians whenever possible. However, barring noncertified
clinicians from other types of expert consultation or testimony in court is probably not justifiable. Some
clinicians may have a solid background in forensic mental health, even though they have not completed a
particular state’s training program. Examples might be mental health professionals who gain certification in
forensic practice from reputable boards (e.g., the American Board of Psychiatry and Neurology, the American
Board of Forensic Psychology) or who have been trained in one of the few existing specialty programs.
Provision could be made for such clinicians to qualify for state certification by examination and/or work
product review only (without taking the prescribed training) to ensure that they are familiar with standards
and procedures prevailing in the particular jurisdiction.53

(c) Management

Previous discussion has suggested, and others have confirmed,54 that the more a forensic system diverges from
Models I and II (which rely on hospitals as evaluation sites), the more complex administration becomes.
Simply put, there is more to administer when there is a range of programs and levels of services. Coordination
of services, standardization of training, and quality control are all more difficult. Although these difficulties
are probably outweighed by the benefits of community-based services, it is important that they are recognized
and that administrative structures are developed to deal with them. It is also important to provide interagency
coordination. By definition, forensic services involve the mental health system in interaction with other

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agencies (e.g., the sheriff’s department, the corrections department, and the court system).
In view of the need for statewide coordination of forensic services, both internally and externally, the state
should vest someone with coordination authority at the state level. Moreover, because of the nature of the
specific tasks to be accomplished (e.g., establishment of interagency agreements and enforcement of standards
for quality of services), it is desirable that the position be at the assistant commissioner level, so that the
individual who possesses authority clearly has sufficient standing in the bureaucracy to be able to communicate
easily with high-level administrators in other agencies. Also, because forensic services will cut across levels or
types of mental health services (e.g., community services and hospitals), the director of forensic services needs
to be at a level commensurate with, rather than subordinate to, the directors of these broad types of services,
who will themselves typically be assistant commissioners. Finally, a high-level, independent position for
forensic services in the mental health bureaucracy minimizes the possibility that funding for forensic services
will be an afterthought in a division with other primary responsibilities.
Each forensic center should also have a coordinator. Analogous to the job of the assistant commissioner,
the local director of forensic services must ensure smooth working relationships with the various parties
involved (e.g., prosecutors, clerk of court, judges, defense attorneys, and probation staff). Representatives of
the legal system need to know the procedures for referral and whom to call in case of a problem. Table 5.3
presents the information sheet formerly circulated to such individuals by one CMHC whose forensic program
served several court jurisdictions. It provides a summary of the types of details with which local administrators
must be concerned.

TABLE 5.3. Sample Services Description

Forensic Evaluation Services

Mental Health Services Center of Midtown Area

To arrange evaluation: Please call the Administrative Offices at 999-9999. We prefer several days’ notice in order to adjust staff schedules to
accommodate the evaluation.

Location: The evaluation will preferably be conducted at the Midtown Office, which is located at 100 First Street (map attached). The
evaluation will be conducted in an interior office with no windows and only one exit to facilitate security arrangements. Persons in custody may
wear leg chains. If necessary in certain cases a defendant may be evaluated while in the Central County Jail. It may also be possible for persons
in custody in the other local jails to be evaluated in the jail facility.

Time of evaluation: The competency evaluation should be expected to take two or two and one-half hours to conduct. The presentence
evaluation and evaluation of mental status at the time of the offense will vary in time required depending on the individual case and whether or
not we have examined the defendant previously. We will attempt to give the court an estimate of length of time for each case.

Reports: Reports will be returned to the appropriate persons in the judicial system within two weeks of the evaluation.

To board persons in custody overnight, Central County Sheriff John Smith has graciously offered the facilities of the Central County Jail. If you
desire to have the prisoner boarded overnight, the Central County Jail should be notified in advance by calling (888) 888-8888. The jail is
located at 100 Main Street. They will give you directions over the phone.

In case of questions or concerns, please call the Administrative Offices (999-9999) and ask for Dr. George Williams, Forensic Team Leader, or
Dr. Jane Jones, Center Director.

Clinical staff: The Center staff who will be conducting these evaluations have received intensive training through the [name of forensic
institute], in addition to their clinical training. Project Staff includes [here list all staff members, their degrees, internship training, position in
the CMHC, etc.]:

Ongoing attention should also be paid to management information services. As Steadman et al.

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discovered,55 many states are not even aware of the number of defendants who enter their forensic service
programs or the auspices under which they enter. Without such information, it is impossible to undertake
systematic program planning or evaluation involving such matters as where additional evaluation centers
should be based, how many beds are needed to ensure adequate treatment of defendants requiring inpatient
care, or what the effect of a change in law or policy might be. Well-developed data systems may also assist in
identification of unanticipated problems (e.g., changes in referral patterns in a particular local jurisdiction).56
Such a need is present in human services generally, but it is especially acute in forensic services. The
multiplicity of competing interests identified previously makes the “sabotage” of forensic service programs
(whether intentional or not) especially common. For instance, prosecutors may prefer hospital evaluations to
outpatient evaluations, under the impression that the hospital staff is more government-oriented. Similarly, a
jail director may consistently refuse to allow defendants restored to competence to be involuntarily medicated
in jail, thus rendering them incompetent before they can be tried. Although anecdotal reports might uncover
these practices, systematic analysis of data obtained from information retrieval systems can identify statistical
aberrations that will lead to further investigation.

(d) Financing

Care should be taken to ensure the absence of economic disincentives for implementation of community-
based services. For example, a major factor in the success of the Virginia program was an interagency directive
establishing that the payment source for outpatient forensic evaluations would be the state judicial
administrative office. Prior to the directive, the financial incentive for the courts was to refer evaluations to the
forensic hospitals rather than to local mental health professionals, because the latter charged the county in
which the referring court sat, whereas the former absorbed the cost in their budgets. Although inpatient
evaluations were costly to the state, they were free to the referring agency, which led to an inefficient and
legally inappropriate use of resources.57
Of course, circumvention of the system can also occur if fees are set too low. Apparently some CMHCs in
Virginia perceived, for example, that screening evaluations were more profitable than comprehensive
evaluations, and they consequently tended to refer cases requiring comprehensive evaluations to the forensic
hospital.58 Similarly, clinics might be inclined to assign their least competent staff members to forensic
services if the income from the services is perceived as insufficient to justify use of highly trained staffers.
Presumably, hospital-based evaluators receive salaries from the state. However, it is difficult to be specific
about how community-based evaluators should be paid, because the fiscal structures available vary across
jurisdictions. For example, administrative relationships between state and local mental health agencies vary
widely among states. We are reasonably confident, however, in suggesting a mix of fees for services and lump-
sum contracts. If the fees are set at a level commensurate with the actual costs of performing the services,
clinics will find it advantageous to perform services efficiently and quickly if they are reimbursed case by case.
However, they are likely to find it disadvantageous economically to go beyond the provision of reports.
Consequently, a lump-sum contract may be necessary to ensure that clinics carry out consultation and
education, as well as direct delivery of services in individual cases. An initial lump-sum incentive may also be
useful in covering the upfront costs of training, therefore enabling small clinics to put aside the necessary staff

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time prior to the receipt of significant fees for forensic services.
The manner of compensating evaluators can also play a role in quality assurance. Compare, for instance,
the financing system in Florida to that in Alabama and Massachusetts.59 In Florida, individual circuit courts
are responsible for retaining and reimbursing professionals who conduct forensic evaluations. Accordingly,
there is little uniformity across jurisdictions in terms of pay or quality of evaluations. In contrast, the Alabama
and Massachusetts departments of mental health are responsible for funding forensic evaluations throughout
the state. Because the departments are free to choose among service providers, they contract only with those
professionals who meet certain standards and agree to follow specific procedures. Thus greater statewide
uniformity can be ensured by the departments of mental health through the contract and funding process.

5.05. EFFECTIVE DIFFUSION OF BEHAVIORAL SCIENCE RESEARCH

Another component of a well-functioning forensic system is the continuing general education of legal actors
about the findings of behavioral research (e.g., the dangerousness of people with mental illness, or the ability
of children to recall past events accurately). Our repeatedly stated preference for the development of a specialty
practice in forensic mental health is based in large part on the desirability—and the difficulty—of
systematizing legal authorities’ access to psychological knowledge that would be useful in their
decisionmaking.
A second reason for addressing this topic here is the assumption that such general behavioral research can
have a positive impact not just on substantive law, but on the forensic system itself. As Grisso has thoughtfully
discussed,60 the nature of the forensic enterprise is such that bad practices can be easily institutionalized or
maintained. In the legal system, with its heavy emphasis on precedent and formalization of procedure, “that’s
the way we’ve always done it” can be a powerful rationale. Clinicians willing to conform to conventional
practice—even if it is not optimal practice—are likely to be favored in the forensic marketplace. Grisso has
argued persuasively that two potential antidotes to this problem are (1) to promote professional standards
(thus potentially changing conventional practice);61 and (2) to build structures (e.g., direct support by
professional associations) that foster behavioral science research relevant to forensic issues, and to facilitate its
diffusion to legal policymakers. The rest of this book is devoted to discussing appropriate professional
standards. But Grisso’s second antidote against forensic system inertia—dissemination of research—needs
separate attention.62
With the ultimate task of guiding researchers in diffusing knowledge among potential users in the legal
system, a study group of the Society for Research in Child Development examined ways that various actors in
the legal system learn about behavioral science research and then use, misuse, or ignore it.63 The study group
synthesized existing research about knowledge diffusion and use (especially in the legal system), and group
members conducted several studies of reading habits of judges and probation officers64 and citation practices
of judges and law professors.65 The project resulted in several broad recommendations:66

1. Report research where it is accessible to users. Research on the citation practices of those in the legal
system showed that for research to be discovered, even by those judges and lawyers who are actively seeking it,
it must be available in journals covered by the Index to Legal Periodicals (e.g., law reviews and a smattering of

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interdisciplinary journals). By contrast, the popular media and practitioner journals, such as state bar journals,
are at best useful for incidental exposure to legal professionals. Furthermore, the difficulty of penetrating the
national news media, combined with the virtual certainty of nonpenetration if active efforts are not made,67
means that use of this source requires a substantial investment of time if researchers want their policy-relevant
findings to be used.68
2. Use informal networks to diffuse information. In light of the foregoing, researchers should consider other
methods of disseminating information besides journals and the media. News about the law, like news about
other disciplines, travels primarily by word of mouth.69 Whether in the legislative or the judicial process,
relatively small networks of opinion leaders not only shape policy and practice, but also serve as the primary
sources of information for their professional peers.
In a project undertaken by the University of Nebraska Center on Children, Families, and the Law and the
American Bar Association Center on Children and the Law,70 the project staff attempted to harness the
informal process of knowledge diffusion among judges. A small group of judges, judicial educators, and staff
members of the National Center for State Courts identified judges in Iowa and Nebraska who they believed
were likely to be leaders of judicial views about child sexual abuse. The resulting 16 judges were contacted. All
agreed to participate in conference call seminars, read selected background materials, communicate the
information to peers, and log such activities. In brief, the low-cost process proved to have a significant impact.
The selected judges appreciated the convenience of continuing education at their desks and the opportunity
for direct discussions with respected peers and experts. Most important, virtually all the judges did spread the
word, usually through multiple face-to-face interactions with other judges. About three-fourths of these
informal brief educational events occurred at the networkers’ initiation. The remainder involved “teachable
moments” when peers sought information or opinions.71
3. Look for opportunities to apply the research. Whether in amicus briefs or in briefings of advocates or
legislators and their staff, the most direct impact comes when researchers bring their information to the
decisionmaking fora in which particular behavioral science findings are relevant. In this regard, integration
into an issue network like the one just described can do double duty. Not only can researchers use the
networks as avenues for diffusion of knowledge, but they also can learn about forthcoming opportunities for
its application.
4. Use professional organizations. Professional associations play two important roles in the application of
scientific information in the legal process. First, they are de facto arbiters of good science and practice. Courts
are especially prone to use policy statements, practice guidelines, and testimony or briefs by professional
associations or government commissions (on which professional associations are often represented) as
authoritative statements of the state of knowledge or practical art.72 Second, the professional associations
commonly have active programs to bring knowledge into the policy arena through lobbying of legislative and
administrative officials, contacts with representatives of other professional and advocacy groups, legislative
testimony, and amicus briefs. Because of staff integration into issue networks, professional associations can be
efficient avenues for diffusion of policy-relevant knowledge.
Given the fact that most legal policy issues are primarily matters of state law, the minimal involvement of
most state associations of mental health professionals in issues other than those having direct guild
implications73 is unfortunate. The opportunities for ensuring socially responsive policy—including policies on

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forensic mental health services that are protective of defendants’ rights and facilitative of high quality—are
greatest in the state capitols and courtrooms.
5. Meet legal professionals on their own terms. If scholarly articles are the method of dissemination, it is
important to remember that behavioral science knowledge is most likely to be used when it is presented within
the context of a legally sound policy analysis that identifies the important empirical issues and their policy
significance. In such presentations, the quality of the legal scholarship is likely to be as important as the rigor
of the science in determining whether research is used (and not misused). Although many psycholegal
scholars themselves are capable of this integration, there is a need at the very least for effective collaboration
between behavioral scientists and law professors. Such a collaboration requires behavioral scientists to master
the sociology of law schools, which is quite different from that of psychology and psychiatry departments,74
and the publication practices of law reviews, which bear little resemblance to those of social science and health
journals.
As has occurred with clinical opinions in the legal system, the proper use of research evidence may be less
problematic than ensuring decisionmakers’ access to information in an easily usable form. The need for
systemic development is clear.

5.06. OPERATING A FORENSIC PRACTICE

Problem 5.2

You have been a practicing psychologist for the past ten years. You have just completed an intensive
training program in criminal forensic evaluation, and another training program in child custody
evaluations. You are now interested in conducting these evaluations. A friend of yours who is a forensic
“veteran” suggests that you write all the attorneys in the area to tell them that you are willing to work at
“discount” prices in both criminal and domestic relations cases, and that you “guarantee acceptable results.”
He also suggests that you take out a full page ad in the local bar journal that indicates that you are willing
to forgo payment altogether in child custody cases if the lawyer’s client “does not prevail” and in criminal
cases where “important public policy issues are at stake.” Finally, where fees are involved, he advises that
retainers are not necessary, but that you should tell the lawyers that you require payment before sending
them a report or testifying. How should you react to this advice?
Consider also whether you will (1) bill services on the basis of time, the nature of the specific services, or
the nature of the question asked; (2) bill services at a rate comparable to the same or analogous general
clinical services; (3) deliver pro bono services, and if so, under what conditions; and (4) bill the examinee or
the lawyer.

We now shift from the systemic to the individual office level. For the most part, the recommendations and
rules we discuss in this book apply to all forensic clinicians, whether they work for the state or are practicing
on their own. However, for those forensic clinicians who set up their own practices, we briefly discuss here
two important issues that do not confront government employees: billing and marketing.

(a) Billing

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Whether for one’s own livelihood or for the fiscal health of one’s agency, it is obviously important to establish
a procedure for setting and obtaining reasonable fees for evaluation, consultation, report writing, and (if
necessary) testifying. For those evaluations in which the state is a party (e.g., criminal and dependency
proceedings), the government or court sometimes establishes a standard fee or rate. For example, the state or
court may reimburse a mental health professional evaluating an indigent defendant in capital sentencing
proceedings at an hourly rate of $250, or may offer a flat fee of $750 for an evaluation and report in a
termination of parental rights proceeding, regardless of the amount of time spent conducting the evaluation.
Even in these situations, however, statutory provisions typically exist for further compensation under
extraordinary circumstances.
In cases in which the state is not a party (e.g., personal injury, workers’ compensation, child custody), fees
are typically set by agreement between the clinician and the retaining party, and they can vary considerably as
a result.75 Our experience has been that forensic practitioners are far from uniform in their billing practices.
Many charge rates for forensic practice that are different (usually higher) from their rates for general
therapeutic services. Some charge more for time in deposition or in court than for the evaluation services that
take place out of court. The bottom-line amount a client is willing to pay may also influence a clinician’s
willingness to accept a case. None of these approaches is necessarily inappropriate. However, the clinician
should avoid the temptation to accept payment on a contingent basis—that is, to take payment only if the
client wins the legal case. As discussed in § 4.05(b)(2), such contingency arrangements are arguably unethical,
and in some jurisdictions are illegal.
Whenever the fee is not set by statute, it is not only wise but ethically required [see § 4.05(b)(2)] to clarify
compensation matters from the beginning, preferably in a memorandum of agreement on the attorney’s
letterhead that makes clear the agreed-upon financial arrangement. To facilitate this type of agreement, the
clinician may want to draft a standard letter or contract setting forth the following information:

The hourly rate(s) for the clinician’s time (perhaps differentiating among the rates for services provided
inside the office, for those provided outside the office, and for expert testimony).
The hourly rates for other staff members’ time (e.g., secretarial staff and other clinicians).
The types of services for which these fees will be charged (e.g., interviewing, testing, interpretation of test
scores, telephone contacts, document review, report writing).
Other types of charges (e.g., photocopying and travel expenses).
The charges when appointments are canceled (which may be different, depending on the length of the
cancelled appointment and the length of notification).
The date or time that payment is due (e.g., when services are completed), and any fee that will be charged
for late payment (which is often limited in amount or percentage by state law).
The extent to which, if timely payment is not made, the client will be responsible for collection fees (and
when such fees shall begin accruing) and legal fees (in the event of a lawsuit).

The clinician may also want to ask for a retainer fee prior to the commencement of services. Law firms
have been known not to pay their experts, especially when the expert opinions are not particularly “useful.”
Thus the letter regarding fees might include the amount of a retainer fee and when it is due (e.g., 48 hours
before the first consultation). It might also note that the amount of time necessary for a forensic examination

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can vary, and that, depending on the case, additional funds may be demanded.
The clinician should also make clear that the referring party (e.g., the lawyer or law firm) is financially
responsible for the fee, not a third party (such as an insurance company).76 Lawyers should not be able to
avoid payment by blaming nonpayment on an uncooperative insurer. The agreement might also note that if
the examinee ceases to be represented by an attorney, the clinician may terminate the relationship.

(b) Building and Marketing a Practice

Clinicians who wish to expand their forensic practices have several options. For many types of cases (e.g.,
criminal, juvenile justice, dependency), the courts maintain lists of mental health experts eligible and willing to
conduct such evaluations. If not already placed there by virtue of a certification process or a similar procedure
related to training, the clinician should seek placement on such a list. Clinicians also can introduce themselves
via letters to the relevant judges and attorneys, with business cards and resumés enclosed. One writer has
recommended establishing a professional webpage as a cost-efficient way of increasing visibility and access,
with the caveat that whatever is included in such a site may serve as “cross-examination fodder.”77
Referrals can also be encouraged via word of mouth (i.e., simply “passing the word” about an interest in
receiving requests for forensic evaluations). This process can be facilitated by publication of articles on forensic
issues (especially in state bar journals and other local fora for practitioners), lectures to lawyers’ groups, and
membership on local committees established by mental health organizations, bar associations, or government
agencies. It is our experience that continuing legal education presentations to attorneys on topics within one’s
areas of expertise are particularly fruitful ways of generating referrals.
Other ways of enhancing one’s exposure can be more problematic. For example, Sadoff has recommended
that clinicians stay away from expert witness groups that charge fees for advertising experts’ names, if only
because “one can easily be exposed as belonging to such a factory or mill, as they are called.”78 Offering pro
bono or reduced-fee work in an effort to attract attention can also backfire, at least if such an offer is solicited
and made in connection with a particular case, because it smacks of result-oriented solicitation.79
For similar reasons, advertising in local bar journals and other periodicals likely to be read by lawyers,
although potentially a useful marketing device, should be approached cautiously.80 Touting one’s clinical
prowess beyond a simple recital of the types of work one can do and educational and experiential attainments
might even run afoul of statutory restrictions on advertising, violation of which can lead to loss of license or
suspension. The most typical regulatory prohibition is a bar on false or misleading advertising. Florida, in
addition, prohibits “obtaining a fee or other thing of value on the representation that beneficial results from
any treatment will be guaranteed.”81
In composing letters, advertising, or webpages, clinicians might consider referencing the following items
(most of them obvious): (1) degrees and education; (2) board certification; (3) specialized forensic training; (3)
publications on forensic issues; (4) membership in relevant organizations, universities, and research institutes;
(5) areas of practice, types of cases handled, and approximate number; (6) jurisdictions in which one has
previously testified as an expert; (7) approximate fees; and (8) availability.

BIBLIOGRAPHY

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John F. Edens et al., Effects of State Organizational Structure and Forensic Examiner Training on Pretrial Competence Assessments, 26 LAW &
HUMAN BEHAVIOR 140 (1999).
W. Neil Gowensmith, Debra A. Pinals & Alexandra C. Karas State Standards for Training and Certifying Evaluators of Competency to Stand
Trial, 15 JOURNAL OF FORENSIC PSYCHOLOGY PRACTICE 295 (2015).
Thomas Grisso et al., The Organization of Pretrial Evaluation Services: A National Profile, 18 LAW & HUMAN BEHAVIOR 377 (1994).
ERIC MART, GETTING STARTED IN FORENSIC PSYCHOLOGY PRACTICE: HOW TO CREATE A FORENSIC SPECIALTY IN YOUR MENTAL
HEALTH PRACTICE (2006).
GARY B. MELTON, LOIS WEITHORN & CHRISTOPHER SLOBOGINCOMMUNITY MENTAL HEALTH CENTERS AND THE COURTS: AN
EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES (1985).
RANDY K. OTTO, ALAN M. GOLDSTEIN & KIRK HEILBRUN, ETHICS IN FORENSIC PSYCHOLOGY PRACTICE (2017).
Randy K. Otto & Kirk Heilbrun, The Future of Forensic Psychology: A Look toward the Future in Light of the Past, 57 AMERICAN
PSYCHOLOGIST 6 (2002).
HENRY J. STEADMAN ET AL., THE MENTALLY ILL IN JAIL: PLANNING FOR ESSENTIAL SERVICES (1989).
Symposium, Justice and Mental Health Systems Interactions, 16 LAW & HUMAN BEHAVIOR 1 (1992).

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PART II

THE CRIMINAL PROCESS

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CHAPTER 6

Competence to Proceed

6.01. INTRODUCTION

The law has long used the term “competence to stand trial” to describe the mental condition that must be met
by criminal defendants subject to adjudication in a criminal case. But that term is misleading. The
requirement that defendants be able to understand and participate in the legal process applies not just to trial,
but to any important criminal proceeding—including guilty plea hearings, which are far more common than
trials, as well as sentencing and parole and probation revocation proceedings. Thus this chapter uses the term
“competence to proceed” or “adjudicative competence” rather than “competence to stand trial.”
The law requires that defendants be competent to proceed to ensure that adjudications are reliable and
dignified. A defendant who cannot understand the process or communicate with the attorney may be unable
to provide exculpatory information or information that can help challenge the state’s witnesses. Trying a
person who cannot grasp the significance of legal proceedings may also undermine the legitimacy of criminal
proceedings by denigrating the accused’s dignity and offending the social values that criminal trials are
supposed to uphold.
Distinct from simple competence to proceed is decisional competence, which the law also requires of
criminal defendants. “Decisional competence” refers to a defendant’s competence to make choices in the
criminal process, including choices to plead guilty, to waive the right to jury trial, or to raise certain defenses.
While closely related to adjudicative competence, the decisional competence requirement seeks principally to
protect autonomy rather than enhance reliability. Thus, for instance, courts usually will allow defendants to
plead guilty even though going to trial might produce more “accurate” results, in the belief that the defendant
—not the state or the defense attorneys—should decide whether to go to trial as long as competent to do so.
However, if the defendant who makes such a decision is incompetent, allowing this decision to stand would
be unjust even if it would produce a satisfactory result, because the decision would not reflect the defendant’s
true desires and would undermine rather than vindicate the defendant’s autonomy.
This chapter discusses competence to proceed, focusing on competence to stand trial. The next chapter
discusses decisional competence. In this chapter, we discuss the genesis of the legal rule that an accused person
must be mentally fit to proceed; the current definition of adjudicative competence; the various reasons (often
unrelated to the defendant’s competence) why the competence issue is raised; and the consequences of an
adjudication of incompetence. We also discuss research examining the reliability and validity of competence
evaluations, including those that use forensic assessment instruments such as the Competency Screening Test
mentioned in Case Study 6.1 below. The chapter concludes with a discussion of the clinical evaluation of
competence to stand trial.

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CASE STUDY 6.1

Donald is charged with six counts of arson. Each count charges him with intentionally setting fire to a church. He obtained a Full Scale IQ
score of 58 on a standard measure of intelligence and demonstrated similar deficits in adaptive behavior, reflecting a serious intellectual
disability. The court has ordered him to undergo an evaluation of his competence to stand trial. During the evaluation, the following
dialogue takes place:

Q: Do you know what you are charged with?

A: I dunno. What’s “charged” mean?
Q: Do you know why you’re here in this jail?
A: Yeah. Burnin’ down stuff.
Q: What stuff?
A: Goddamn churches.
Q: Have you talked to your attorney about this?
A: Them churches was wrong. They get in the way. I got them out of the way.
Q: Is that what you told your attorney?
A: Yeah.
Q: Do you like your attorney?
A: He don’ like me.
Q: Why do you say that?
A: He don’ talk to me or nothin’. He don’ try to get me off.
Q: Do you want to get off?
A: Yeah.
Q: Is that because you think you are innocent?
A: I got good reasons for doin’ what I done. Those churches are bad. I didn’t want to hurt no one. The fire, the fire, it clean everything up.
Right up.
Q: Do you hear people talking to you who aren’t there?
A: The Lord, he talk to me. And so do the devils and the angels. They all in there trying to mess me up. But I done right.
Q: Have you ever seen these devils or angels?
A: Nope. They just always shoutin’ at me. Tryin’ to mess me up. The fire, it’ll clean everything right up.
Q: If your lawyer wanted you to testify, would you do it?
A: I’m goin’ to tell everyone what’s wrong with the churches.
Q: Would you be willing to tell them you have mental problems, if that would get you off?
A: I ain’t crazy. Jus’ angry.
Q: Do you think you need any kind of treatment?
A: I jus’ tol’ you, I ain’t crazy, and I don’t want to go to no loony bin.
Q: What do you think might happen at a trial?
A: They’ll try to put me in prison, but I’ll burn it down. They can’t stop me from doin’ right.
Q: Who will try to put you in prison?
A: The pros’cutor, the jury, the judge, all those people.
Q: Are the judge and jury against you?
A: Depends ‘pon whether they know what’s right. Maybe they is, maybe they isn’t. But the fire will clean everything up.
Q: Let’s say the prosecutor comes to your attorney and says he’ll recommend only five years in prison if you plead guilty to burning down six
churches. What would you do?
A: Five years in prison?
Q: Five years.
A: I shouldn’t oughta go to prison.
Q: But what might happen if you go to trial?

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A: I tol’ you, they could put me in prison.
Q: For how long?
A: For as long as they want.
Q: So might it not be a good idea to take the prosecutor’s offer of five years?
A: It don’ matter, since they ain’t goin’ to be able to keep me. Look, I don’ like this. I ain’t talkin’ to you no more.

Before the interview, Donald completed the Competency Screening Test orally (because he was unable to write). He scored 17. Some of
the sentence completions that did not receive the full 2 points were as follows:

When I go to court, the lawyer “will probably not say much.”

When they say a man is innocent until proven guilty, I “know what they mean.”
What concerns Fred about his lawyer is that “he don’t seem to care much.”

Questions: If you were the examiner in this case, what might you say about Donald’s competence to stand trial or plead guilty? What
other information might you want to assess Donald’s competence to proceed? If you want to interview Donald further, but he still refuses,
should the court impose sanctions on Donald [see § 4.02(a)]? If Donald’s defense attorney wants Donald to proceed with adjudication now,
and he agrees, should the criminal process go forward? Alternatively, if Donald’s attorney believes Donald needs treatment so that he can be
restored to competence, should the attorney seek to have the state treat him over Donald’s objection? If Donald is found incompetent due
to delusions, but he refuses medication because he does not like the side effects, should the court order Donald to receive medication over
his objection?

6.02. THE LEGAL STANDARD

This section examines the historical basis and rationale for the adjudicative competence requirement and its
most common modern formulations. It also addresses two considerations that often affect determinations of
competence: the impact of amnesia, and the ways in which antipsychotic medication can affect a defendant’s
competence.

(a) Historic Antecedents

The rule that an individual must be competent to undergo the criminal process originated in the common law
and has been traced at least to the 17th century.1 In those days, as is true today, the defendant was required to
plead to the charge prior to trial. Some commentators suggest that the concept of competence first arose as a
reaction of the English courts to defendants who, rather than making the required plea, stood mute.2 In such
a case, the court would then seek to ascertain whether the defendant was “mute of malice” or “mute by
visitation of God.” If the individual fell into the first category, the court sought to force a plea by ordering
increasingly heavier weights to be placed upon the individual’s chest. If the individual fell into the latter
category, he or she was spared this ordeal. The category “mute by visitation from God” initially included
literally deaf and mute individuals, but over time was expanded to include those described as “lunatic.”3
Although the requirement that a defendant be competent may have developed as a practical response to a
practical problem, it eventually reflected another concern: that trying certain types of individuals was simply
unfair. Thus, in the 18th century, Blackstone observed that a defendant who “becomes mad . . . ought not to
be arraigned . . . because he is not able to plead to it with that advice and caution that he ought. And if, after
he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defense?”4 This idea
was also reflected in early English court decisions. For example, in Frith’s Case, decided in 1790, the court

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found that trial must be postponed until the defendant “by collecting together his intellects, and having them
entire, . . . he shall be able so to model his defense and to ward off the punishment of the law.”5
Early American courts, which relied heavily on English common law,6 also recognized the incompetence
plea. In 1835, for instance, the man who attempted to assassinate President Andrew Jackson was declared
unfit to stand trial.7 In 1899, a federal court of appeals gave the competence doctrine constitutional status,
holding that it was “fundamental that an insane person can neither plead to an arraignment, be subjected to a
trial, or, after trial, receive judgment, or, after judgment, undergo punishment; to the same effect are all the
common-law authorities. . . . It is not ‘due process of law’ to subject an insane person to trial upon an
indictment involving liberty or life.”8 Since that time, the United States Supreme Court has on several
occasions stated that the right of an incompetent defendant to avoid trial is “fundamental to an adversary
system of justice.”9
Although these holdings have been based on the Fourteenth Amendment’s due process clause, they are
probably best thought of as attempts to implement the Sixth Amendment, which guarantees criminal
defendants the rights to be represented by effective counsel, to confront their accusers, and to present
evidence. Exercise of these rights requires more than physical presence in court. Defendants who are not
“present” mentally—who cannot understand what is happening in court and how it affects them —cannot
help their attorneys rebut the state’s case or discover helpful evidence. Put another way, in an ideal world the
criminal process should provide a trial between evenly matched adversaries. This process posits defendants
who are able to participate in their own defense. Without the competence doctrine, the rights afforded by the
Sixth Amendment would be empty for many defendants.
A second rationale for the competence requirement focuses not on the individual’s rights, but on society’s
interests. The defendant must be competent not just to ensure fair results, but to guarantee a dignified
criminal process. As one commentator has observed, “The adversary form of the criminal proceeding
necessarily rests on the assumption that the defendant will be a conscious and intelligent participant; the trial
of a defendant who cannot fulfill this expectation appears inappropriate and irrational.”10 Even a proceeding
that produces an accurate guilty verdict would be repugnant to our moral sense if the convicted individual
were unaware of what was happening or why.11 As we explain below, this second rationale for the competence
requirement seems to underlie many of the substantive and procedural aspects of competence doctrine.

(b) The Competence Standard

In Dusky v. United States,12 the United States Supreme Court set forth a definition of competence to stand
trial that has since come to be the standard for all criminal proceedings in federal court and in most states.
The Court stated that “the test must be whether he [the defendant] has sufficient present ability to consult
with his attorney with a reasonable degree of rational understanding and a rational as well as factual
understanding of proceedings against him.”13 Although this formulation only repeated a test suggested by the
Solicitor General in the case, it now has constitutional status, with the result that many state statutes and
court decisions either follow it verbatim or closely track its basic components.14
These components are several in number. First, the Court’s test delineates two prongs to the competence
test: (1) the defendant’s capacity to understand the criminal process, both in general and in the defendant’s

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specific case; and (2) the defendant’s ability to function in that process, primarily through assisting counsel in
the preparation of a defense. Subsequent legal efforts to define competence have consistently focused on these
two prongs.
Second, these criteria focus on the defendant’s present ability to consult with counsel and understand the
proceedings. The Dusky test for adjudicative competence therefore differs fundamentally from the test for
criminal responsibility, evaluation of which involves a retrospective inquiry into the defendant’s emotional,
behavioral, and cognitive functioning when the alleged offense occurred.
Third, the test emphasizes the defendant’s capacity, as opposed to willingness, to understand the
proceedings and assist counsel. If a defendant’s failure to name the precise charge or describe the role of the
judge results simply from ignorance (e.g., not having been told), a finding of incompetence is unwarranted.
Similarly, unless a defendant’s refusal to assist the attorney is due to psychopathology (e.g., irrational/paranoid
thinking, hopelessness associated with depression) that calls into question the defendant’s ability to assist in
his or her defense, it is not ground for an incompetence finding.
Fourth, the requirement that the defendant possess a reasonable degree of understanding suggests that the
test as applied to a particular case is a flexible one. “Perfect” or complete understanding on the part of the
defendant is not required; in fact, most observers agree that the threshold for a finding of competence is not
particularly high.15 At the same time, this threshold may vary according to context.16 With respect to the first
prong of the competence test, for instance, a level of capacity sufficient to understand a simple charge (e.g.,
shoplifting) may be grossly insufficient when a more complicated offense is involved [see the Warner
Premington report, § 19.02(c)]. Similarly, the defendant’s capacity to communicate with counsel may depend
as much on the attorney’s personality and the facts of the case as on any aspect of the defendant’s mental
condition. While the Supreme Court has suggested that a defendant is not entitled to a “meaningful
relationship” with the attorney (primarily because such a guarantee is not possible),17 a complete breakdown
in communications between attorney and client because of the defendant’s mental disorder and the attorney’s
reaction to it may be relevant.
A fifth and final aspect of the Dusky standard is its emphasis on the presence or absence of “rational” and
“factual” understanding, which suggests an emphasis on whether and to what extent mental disorder affects
the form and content of the defendant’s thinking. This means that the presence of a mental illness or an
intellectual disability is relevant only insofar as the disorder affects a client’s “rational and factual
understanding” as he or she consults with counsel and undergoes trial. As one court explained, “the presence
of some degree of mental disorder in the defendant does not necessarily mean that he is incompetent to . . .
assist in his own defense.”18 At the same time, the defendant’s understanding of criminal proceedings must be
rational; just knowing general facts about legal proceedings is not enough. A defendant who understands that
a particular prison term is associated with his or her charges, but believes for delusional reasons that he or she
will never serve any time in prison, may be incompetent [consider Case Study 6.1 and the Fordham Rhodes
report in § 19.02(e)].
There have been a number of efforts by legislators, courts, and clinicians to add content to the rather
sparsely worded standard enunciated more than a half-century ago in Dusky. For example, the Florida Rules
of Criminal Procedure require that in evaluating a defendant’s competence to proceed, a mental health
professional consider and address the defendant’s capacity to do the following:

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 1. Appreciate the charges or allegations against him;
2. Appreciate the range and nature of possible penalties, if applicable, which may be imposed in the proceedings against him;
3. Understand the adversary nature of the legal process;
4. Disclose to his attorney facts pertinent to the proceedings at issue;
5. Manifest appropriate courtroom behavior; and
6. Testify relevantly.19

These factors operationalize both prongs of Dusky. The first three factors relate to the defendant’s ability to
understand the legal process. Defendants who cannot grasp the charges or possible penalties, or who cannot
understand that trial involves an attempt by the prosecutor to obtain a conviction from a jury or judge, are
unlikely to be able to confront their accusers or understand their role in defending themselves. The last three
factors concern defendants’ ability to function in the process. The fourth factor is likely to be a crucial aspect
of confronting accusers and assuring a fair trial (although amnesia for the offense does not necessarily bar a
finding of incompetence [see § 6.02(c)]). Similarly, the defendant who cannot behave properly could disrupt
and distract the factfinding process, prejudice the factfinder, and make defense counsel’s job impossible, while
a defendant who is incapable of testifying, even though able to talk to the attorney in private, may be deprived
of a fair trial.
The Florida rules also direct examiners to consider “any [other factors] deemed relevant.” One such factor
is the defendant’s capacity to weigh the advantages and disadvantages of a guilty plea and make a reasonable
decision about whether to enter into a plea agreement. This capacity will almost always be relevant in a
competence evaluation, because, as noted in § 2.04(a)(1), more than 90% of all criminal cases are resolved
through a guilty plea rather than trial. Yet most statutory and judicial formulations of the competence test,
like Florida’s, fail to take explicit notice of this fact. Perhaps this oversight can be justified on the ground that
a person who understands the charges and their consequences can make an adequate decision as to whether to
plead guilty; indeed, as noted in § 7.04 (where competence to plead guilty is discussed in detail), many courts
have so held. Yet, as Bonnie has pointed out,20 an intelligent guilty plea requires not only an understanding of
the legal process and the ability to communicate information (the core of competence to stand trial), but the
capacity to make a decision in light of that understanding. This distinction between “decisional competence”
and “adjudicative competence,” noted in this chapter’s introduction, is discussed in more detail in the next
chapter.
Most states’ statutes are not as detailed as Florida’s; instead, they adopt or provide variations on the test
announced in Dusky. However, judicial decisions construing these laws often flesh out the Dusky test in a
fashion similar to Florida’s rules.21 Clinicians and researchers have also created assessment tools designed to
assist in the evaluation of competence. In 1974, for instance, the Group for the Advancement of Psychiatry
(GAP) developed a 21-item list that remains relevant and useful today [see Table 6.1].22 Other assessment
instruments developed for use by clinicians are discussed in § 6.07.

TABLE 6.1. List of Items Relevant to Competency to Stand Trial (Group for the Advancement of Psychiatry)
Competency to Stand Trial may involve the ability of a defendant:
1. To understand his current legal situation.
2. To understand the charges against him.
3. To understand the facts relevant to his case.
4. To understand the legal issues and procedures in his case.

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 5. To understand legal defenses available in his behalf.
6. To understand the dispositions, pleas, and penalties possible.
7. To appraise the likely outcomes.
8. To appraise the roles of defense counsel, the prosecuting attorney, the judge, the jury, the witnesses, and the defendant.
9. To identify and locate witnesses.
10. To relate to defense counsel.
11. To trust and to communicate relevantly with his counsel.
12. To comprehend instructions and advice.
13. To make decisions after receiving advice.
14. To maintain a collaborative relationship with his attorney and to help plan legal strategy.
15. To follow testimony for contradictions or errors.
16. To testify relevantly and be cross-examined if necessary.
17. To challenge prosecution witnesses.
18. To tolerate stress at the trial and while awaiting trial.
19. To refrain from irrational and unmanageable behavior during the trial.
20. To disclose pertinent facts surrounding the alleged offense.
21. To protect himself and to utilize the legal safeguards available to him.

Although factors such as those found in the Florida rules and the GAP items help operationalize Dusky,
their meaning in a given case depends heavily on context and can be open to multiple interpretations.23
Donald, the individual in Case Study 6.1, can recount some of the facts surrounding the offense—but can he
give the attorney all the “pertinent” facts? Would he be able to testify relevantly (see factors 4 and 6 in the
Florida rules, and items 20 and 16 on the GAP list)? The answer to these questions is more likely to be yes if
an insanity defense will be raised, but Donald seems to resist that tactic. What implications does Donald’s
rejection of an insanity defense have for his ability “to understand legal defenses available in his behalf” (item 5
on the GAP list)? What can be said about his ability to collaborate with his attorney (item 14 on the GAP
list)? The difficulty the evaluating clinician might have in answering these types of questions suggests that an
examiner’s report should be careful about using not only the ultimate-issue language (i.e., competent vs.
incompetent), but also penultimate-issue language (i.e., able vs. not able to recount pertinent facts and
understand available legal defenses).

(c) The Amnestic Defendant

At first glance, defendants who cannot remember their actions would appear to be incompetent, because they
cannot provide their attorneys information about what occurred at and around the time of the alleged offense.
As noted earlier, however, amnesia for the period of the crime, by itself, does not bar a finding of
competence.24 This principle appears to be predicated primarily on judicial distrust of the authenticity of such
claims.25 As one court stated, to let amnesia be a bar to trial would “turn over the determination of crime and
criminal liability to psychiatrists, whose opinions are usually based in large part upon defendant’s self-serving
statements, instead of to Courts and juries.”26 Another court, after expressing similar concern over the ease
with which amnesia could be feigned, observed that a defendant is only entitled to a fair trial, not a perfect
trial.27 The stance of these courts appears to be that as long as the defendant understands the charges and the
process more generally, claims of amnesia should not forestall the criminal process.
Although the courts have been unanimous in refusing to equate amnesia with incompetence, many have

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acknowledged that genuine amnesia poses a threat to accurate adjudication. Perhaps the most considered
decision about how to reconcile the competence requirement with the rule regarding amnesia comes from the
D.C. Circuit of Appeals. In Wilson v. United States,28 the defendant, charged with assault and robbery, had
fractured his skull while being apprehended for the offense; as a result, he claimed (and clinicians verified) that
he had no memory of the incidents underlying his charges and was deemed unlikely ever to regain his
memory. While finding that his amnesia did not bar prosecution, the D.C. Court of Appeals issued the
following guidelines to assist the trial court in determining whether the defendant was competent:

1. The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.
2. The extent to which the amnesia affected the defendant’s ability to testify in his own behalf.
3. The extent to which the evidence could be extrinsically reconstructed in view of the defendant’s amnesia.
Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi.
4. The extent to which the government assisted the defendant and his counsel in that reconstruction.
5. The strength of the prosecution’s case. The court observed that “most important here will be whether the
Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial
possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be
presumed that he would have been able to do so.”
6. Any other facts and circumstances that would indicate whether or not the defendant had a fair trial.29

Wilson also required the prosecution to assist the defense in preparing its case, including cooperation in
pretrial discovery broader than that ordinarily permitted in criminal cases. A similar ruling came in United
States v. Stubblefield,30 in which the court emphasized the prosecution’s obligation to assist the defense not
only in reconstructing the events surrounding the offense, but in constructing any reasonably possible alibi or
other defense. A slightly different approach was taken in United States v. Andrews,31 where the Seventh
Circuit Court of Appeals held that the trial court should consider “several factors,” including:

(1) Whether the defendant has any ability to participate in his defense; (2) Whether the amnesia is temporary or permanent; (3) Whether
the crime and the defendant’s whereabouts at the time of the crime can be reconstructed without the defendant’s testimony; (4) Whether
access to government files would aid in preparing the defense; and (5) The strength of the government’s case against the defendant.32

(d) Medication-Induced Competence

Because many adult defendants who are adjudicated incompetent suffer from psychosis [see § 6.06(b)], the
most common method of restoring competence is the administration of psychotropic medication. Yet in the
past some courts refused to recognize “drug-induced” competence, based on the belief that antipsychotic
medications distort defendants’ thought processes and produce only a “synthetic sanity.”33 This view has not
prevailed. Courts have recognized that although such medications do have side effects, they are often the only
method of improving defendants’ cognitive, emotional, and behavioral functioning sufficiently to enable them
to understand and participate in the legal process. Forgoing such medication could mean that some
defendants who could be rendered competent will in fact never be tried, which may be antithetical to both the
state’s and the individuals’ interest.
At the same time, courts, lawyers, and mental health professionals should understand both that

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antipsychotic medications can have serious side effects, and that inappropriately titrated medication can
diminish a defendant’s ability to understand and participate in the legal process. These concerns came to the
fore in Riggins v. Nevada,34 a United States Supreme Court decision. After being found incompetent to stand
trial on capital charges, Riggins was treated with medication, apparently successfully. But by the time he was
tried, he was receiving a daily dose of the antipsychotic medication thioridazine (Mellaril) that could have
caused oversedation. Without rendering a firm conclusion as to whether the medication actually impaired
Riggins and compromised his right to a fair trial, the Court remanded the case to the trial court for a
determination as to whether “the substance of [Riggins’s] testimony, his interaction with counsel, or his
comprehension at trial were compromised by forced administration of Mellaril.” Riggins requires that the trial
judge (and thus forensic examiners) carefully evaluate the effect of medication on a defendant’s ability to
understand and participate in the proceedings and to consult with counsel (i.e., the Dusky criteria).
In Sell v. United States,35 which is discussed in detail in § 6.04(d), the Supreme Court reiterated the
concerns about adverse medication effects that were raised in Riggins. Specifically, Sell allowed courts to order
involuntary medication for competence restoration only if the medication is (1) “substantially likely to render
the defendant competent to stand trial”; (2) “substantially unlikely to have side effects that will interfere
significantly with the defendant’s ability to assist counsel in conducting a trial defense”; (3) “necessary to
further these interests”; and (4) “medically appropriate, i.e., in the patient’s best medical interest in light of his
medical condition.”36
In sum:

Competence to proceed relates to a defendant’s current level of cognitive, emotional, and behavioral
functioning, with or without medication.
The presence of a mental disorder does not necessarily render a defendant incompetent.
The legal test for competence to proceed focuses on a defendant’s ability to understand and participate
meaningfully in the criminal process, not the defendant’s knowledge about or willingness to participate in
it.

6.03. PROCEDURAL ISSUES

A request for a competence-to-proceed evaluation may occur at any point in criminal proceedings, although it
usually occurs well in advance of trial or a guilty plea. To appreciate the roles of attorneys and clinicians in
competence evaluations, it helps to understand who requests the evaluations and why, the standard under
which such motions are granted, the reasons evaluations are sought, the typical location of the competence
examination, and the procedures associated with the formal adjudication of competence.

(a) Who May Raise the Issue?

Defense attorneys initiate most competence inquiries.37 However, motions for an evaluation or hearing on
competence may also be made by the prosecution or by the court itself.38 Three related concerns have arisen in
connection with prosecution or court-initiated competence examinations.
The first is the possibility that such examinations will occur without the knowledge of defense counsel or

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even prior to appointment of counsel for the defendant, thereby violating the constitutional right of the
defendant to counsel under Estelle v. Smith [see § 4.03(a)]. The American Academy of Psychiatry and the
Law (AAPL) has stated that “[a]bsent a court order, psychiatrists should not perform forensic evaluations for
the prosecution or the government on persons who have not consulted with legal counsel when such persons
are: known to be charged with criminal acts; under investigation for criminal or quasi-criminal conduct; held
in government custody or detention . . . ”39 The American Psychological Association’s Specialty Guidelines
for Forensic Psychology advise psychologists against evaluating persons who are not represented by counsel.40
And the American Bar Association’s (ABA’s) Criminal Justice Mental Health Standards suggest that mental
health professionals asked to evaluate competence have an ethical obligation to ascertain whether the
defendant has counsel, and, if not, to postpone the examination until counsel is obtained.41
A more fundamental question about prosecution and court-initiated competence motions is whether they
should be allowed at all if the defense objects. In Pate v. Robinson,42 the Supreme Court suggested an
affirmative answer to this question, when it asserted that “it is contradictory to argue that a defendant may be
incompetent and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to
stand trial.” In response, it has been argued that the consequences of an incompetence determination
(potentially long-term hospitalization), the possibility of bad faith on the part of the prosecution [see §
6.03(c)], and the stigma associated with the incompetence label should require courts to presume competence,
at least whenever the defendant can “clearly articulate” a decision to avoid a competence evaluation and the
attorney concurs with that decision.43 But if such a presumption of competence is warranted, it should be
rebuttable, for at least two reasons. First, as discussed in the preceding section, society has an interest, distinct
from that of defendants, in ensuring that defendants are competent when they are tried; therefore, the defense
should not have dispositive say on whether a competence inquiry occurs. Second, the possibility exists that
defense attorneys will resist evaluation even of clearly incompetent clients for a number of reasons: a desire to
have them appear “crazy” at trial;44 a belief, most likely in cases involving minor charges, that a plea bargain is
preferable to lengthy hospitalization; or a desire to do the client’s bidding (in cases where the defendant wants
to avoid being labeled incompetent or insists that he or she is not mentally ill) [see § 6.06(a)].
A closely related issue, raised in connection with Case Study 6.1, concerns the obligation of defense
attorneys to raise the competence issue when a good-faith doubt exists. On the one hand, for reasons noted
above, the attorney may want to avoid evaluation, especially in cases where the defendant insists. Uphoff
argues that the contrary approach will lead to many unnecessary competence evaluations, create distrust
between the defendant and counsel, and complicate counsel’s role at subsequent competence hearings, given
the possibility that the attorney will need to reveal confidential communications from the client to support an
incompetence claim.45 Uphoff also notes, as just discussed, that in most states the judge or prosecutor can
raise the competence issue if it appears that the defendant is being demeaned by the process. However, if the
defense attorney does not raise the issue knowing that no one else is likely to do so, it could be said that he or
she is perpetrating a fraud on the court. Furthermore, quick guilty pleas disserve an innocent client and may
result in an avoidable conviction that will harm later job prospects or lead to sentence enhancements. As to
the concern about long inpatient stays, a strong argument can be made that hospitalization should not be
avoided for defendants who need treatment, but rather should be challenged if it becomes inappropriately
lengthy.

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 The ABA’s Criminal Justice Mental Health Standards take a position closer to Uphoff’s. They state that
defense counsel may either seek an ex parte evaluation or move for a court-ordered evaluation of the
defendant’s competence.46 Thus the defense attorney is not required to make the motion. At the same time,
he or she may do so, even when the defendant objects. If the latter step is taken and “after the competence
evaluation, defense counsel and the defendant disagree about whether a plea of incompetence should be
asserted, special counsel should be appointed to represent the defendant’s position during the competency
hearing.”47 Thus, if an evaluation does take place and the counsel and client disagree on the competence issue,
the Standards require the defense attorney to withdraw from representation on that issue.

(b) The Standard for Granting an Evaluation

A second issue crucial to the competence evaluation process is when a motion for an evaluation should be
granted, regardless of who makes it. The United States Supreme Court has ruled that the trial court must
order an inquiry if a “bona fide doubt” exists as to the defendant’s competence.48 Furthermore, the Court has
said that in deciding whether such doubt exists, the judge must take into account and weigh any factor
suggestive of mental illness. For example, in Drope v. Missouri,49 where the defendant’s wife had testified
about his “strange behavior” and where the defendant on the second day of trial shot himself in an attempted
suicide, the Court ruled that a competence examination should have been ordered, stating that

evidence of defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant
in determining whether further inquiry is required, but even one of these factors standing alone may, in some circumstances, be sufficient.
There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the
question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate
is suggested by the varying opinions trained psychiatrists can entertain on the same facts.50

In practice, a court will rarely refuse a request for a competence examination, if only to avoid having an
ensuing conviction reversed on the ground that the defendant’s constitutional right to due process was
violated.51 This fact emphasizes a point made in the preceding section: Preventing trial of an incompetent
defendant is sufficiently important to society, regardless of the individual’s desires, that the system tends to
resolve marginal cases by calling for a competence inquiry.

(c) Reasons Evaluations Are Sought

Unfortunately, the low threshold for seeking competence evaluations, although perhaps justifiable from a
constitutional perspective, has in the past encouraged misuse of the system. Data on attorneys’ rationales for
referral suggest that, fairly frequently in the 20th century, these evaluations were often precipitated by
concerns that were in some sense illegitimate. In the early 1970s, Rosenberg and McGarry found that only 10
of 28 trial attorneys they interviewed had any knowledge at all of the legal standards for incompetence;52 in
that same decade, Roesch and Golding found that some attorneys (and clinicians) confused incompetence
with mental disorder per se or with insanity.53 Defense attorneys have been known to use competence
evaluations to get information relevant to such defenses or to sentencing,54 and prosecutors may have
occasionally used incompetence referrals as a ruse to force treatment of persons who do not meet

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dangerousness requirements for civil commitment,55 or to obtain incriminating information [see § 4.02(a)].
Finally, both prosecutors and defense attorneys may see competence referrals as an ideal way to delay the
proceedings or remove defendants from the jurisdiction until “things calm down.” Judges can exacerbate the
situation by rubber-stamping referral motions rather than inquiring into whether a bona fide doubt actually
exists.56
Our observations, and those of others,57 lead us to conclude that these practices are not as pervasive as they
once were. Indeed, as § 6.03(a) has indicated, the opposite problem may exist: Defense attorneys, who are in
the best position to notice clients’ incompetence, may not raise the issue as often as it should be raised.
Nonetheless, misuse of referrals has not disappeared. Clinicians must be sensitive to the dynamics of the
criminal justice process and the varying impulses that result in referrals. Otherwise, they may become
unwitting participants in strategic ploys by one side or the other that have nothing to do with competence—
the ostensible reason for the referral, and the only issue with which examiners should be concerned. At the
same time, lawyers must ensure that their uses of the competence referral conform with its purposes; failure to
do so, although perhaps attaining a short-term strategic goal such as delay, may result in harm to clients (e.g.,
unnecessary confinement in a mental health facility, client dissatisfaction with the lawyer, and stale evidence if
and when trial does take place).

(d) The Competence Examination: Setting and Length

After the court grants the motion for an evaluation of the defendant’s competence, one or more clinicians will
examine the defendant. A half-century ago, most competence examinations were performed by psychiatrists in
“remotely located state institutions far from . . . family and community ties,” where defendants were
hospitalized for between one and three months.58 By the 1990s, however, most states had decentralized their
forensic services, and most pretrial competence evaluations were conducted by court clinic staff, community
mental health center employees, or private practitioners, all of whom operated outside state mental hospitals
[see § 5.03].59 Beginning in the mid-20th century, bolstered by research indicating that competence
evaluations conducted by psychiatrists are no better than evaluations conducted by other mental health
professionals,60 states increasingly authorized psychologists and social workers to perform competence
examinations61—a trend that facilitated the decentralization of forensic systems by expanding locally available
forensic resources.
These developments occurred for a number of reasons. Most important, research made evident that a
competence evaluation can be performed adequately in an outpatient rather than an inpatient setting [see §
6.06(c)].62 Second, courts became more attuned to defendants’ constitutional rights to a speedy trial and to
nonexcessive bail,63 which created legal impetus to expedite cases and avoid unnecessary incarceration. In
addition, fiscal constraints pressured courts to seek efficient ways of processing cases,64 which an outpatient
examination system provides; defendants evaluated in such a system return to court for trial much more
quickly than those evaluated on an inpatient basis in remote facilities.

(e) Adjudication of Competence

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State statutes usually call for a court hearing on the issue of competence, but these proceedings rarely occur,
and they are likely to be perfunctory when they do. Instead, judges (most states do not provide for juries in
such cases) typically heavily rely on clinical reports. Despite the long recognition by both appellate courts and
clinicians that the determination of competence is a legal rather than a clinical matter,65 studies have
repeatedly shown that judges agree with clinicians’ competence opinions in more than 90% of cases.66
Exploring why this might be the case, Zapf and her colleagues interviewed Alabama trial court judges, who
“all indicated their belief that mental health professionals are more qualified (through their specific training)
to answer the question of competency than are judges or other legal professionals.”67 Zapf and her colleagues
recommended that, given judges’ deference to forensic examiners’ opinions on matters of trial competence,
“the importance of conducting high quality, comprehensive evaluations and of writing thorough reports
cannot be overemphasized.”68 This advice is well taken. Although the clinical findings for many defendants
point obviously toward competence or incompetence, forensic evaluators who are honest with themselves will
admit that in other cases they hold their yes-or-no opinions about competence with varying levels of
confidence.69
In such uncertain situations, the jurisdiction’s rule with respect to which side bears the burden of proof may
play an important role, because when evidence is in “equipoise” the party bearing the burden of proof does not
prevail. In Medina v. California,70 the Supreme Court upheld the constitutionality of a California statute that
created a presumption of competence and placed the burden of proving incompetence, by a preponderance of
the evidence, on the party raising the question (which in Medina was the defendant, who was charged with
capital murder). The Court conceded that “an impaired defendant might be limited in his ability to assist
counsel in demonstrating incompetence,” but noted in support of its holding that this instability “can, in and
of itself, constitute probative evidence of incompetence.”
The Court also asserted that “defense counsel will often have the best-informed view of the defendant’s
ability to participate in his defense,” which, if true, would justify placing the burden on the defense. It should
also be noted, however, that when defendants are adjudicated incompetent and hospitalized for treatment,
defense attorneys will have much more limited information about their clients’ recent mental state—certainly
much less than the hospital-based professionals who have treated and evaluated these defendants and come to
court to testify about them. A better reason for placing the burden on the party raising the issue is society’s
and the defendant’s interest in avoiding delay due to unnecessary competence evaluations and
hospitalization.71
Medina does not require the approach taken in California; it merely permits it. Furthermore, the Supreme
Court has held that the defendant may not be forced to prove incompetence by clear and convincing evidence
(a more onerous standard of proof than the preponderance standard involved in Medina),72 and would
probably also find unconstitutional a rule requiring the defendant to bear the burden of proving competence
(given Drope and Pate). As an alternative, the state could be required to prove its case, regardless of whether it
is arguing that the defendant is competent or incompetent. However, for the reasons suggested above, the
California statute probably arrives at the best solution.

6.04. DISPOSITION OF INCOMPETENT DEFENDANTS

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If the court rules that the defendant is competent, the criminal process resumes. If the defendant is
adjudicated incompetent, however, criminal proceedings are suspended. In some of these cases, particularly if
the defendant is charged with a minor offense, the charges may be dismissed (or handled via a decision not to
prosecute) in exchange for the defendant’s agreeing to seek treatment; many states specifically provide for such
a procedure where misdemeanors are involved.73 If the criminal proceeding is not short-circuited through an
arrangement of this type, the court often orders the defendant to a public-sector psychiatric hospital for
treatment to restore competence. This section examines the latter disposition, including possible ways of
improving current practice.

(a) The Rule of Jackson v. Indiana

The stated purpose of treating a defendant found incompetent to proceed is to restore competence so that the
adjudication process may resume. Until the early 1970s, however, commitment of incompetent defendants
often simply meant long-term or even lifetime confinement in a state hospital, with treatment being only a
secondary objective.74 These individuals were literally forgotten by the court system, despite the fact that they
had neither been tried for nor convicted of a crime.
In 1972, however, the United States Supreme Court decided Jackson v. Indiana.75 “Theon Jackson,” wrote
Justice Blackmun, “is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read,
write, or otherwise communicate except through limited sign language.” Jackson faced two counts of petty
theft, had been found incompetent to stand trial, and was hospitalized “for treatment.” But because his
impairments precluded his ever attaining competence, Jackson faced indefinite and perhaps lifelong
hospitalization. The Court ruled that this disposition violated both the equal protection and due process
guarantees of the Fourteenth Amendment. Equal protection was violated because Indiana accorded other
nonconvicted persons who were involuntarily hospitalized (i.e., those subjected to civil commitment)
significantly more procedural protections than people like Jackson. More important, Jackson’s disposition
violated the due process clause because it bore no rational relationship to the state’s purported rationale for
hospitalization—treatment to attain competence. Accordingly, the Court held:

A person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held
more than a reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity in the
foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment
proceedings that would be required to commit indefinitely another citizen or release the defendant.76

This language prohibits the state from committing incompetent defendants on incompetence grounds unless
they have a “substantial probability” of becoming competent with treatment. And even then, the state may do
so only for a “reasonable period of time” during which restoration is attempted. If the defendant’s competence
has not been restored after a reasonable period of time, the state may detain the individual in a hospital only if
he or she meets general civil commitment criteria.
Like most of the Court’s decisions in this area, however, Jackson offers only a general guideline. The Court
did not define what it meant by “substantial probability” or “reasonable period of time.” Stone has suggested
that in most cases six months is sufficient to determine whether a defendant can be “restored to competence”
(a phrase commonly used in this context, even though some defendants, like Jackson, may never have been

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competent).77 A six-month limit is reasonable, others have pointed out, because for most patients who receive
currently available treatments “positive responses . . . will occur relatively quickly, if they are to occur at all.”78
Generally, between 75 and 85% of defendants adjudicated incompetent to proceed due to mental illness are
returned to court as competent within six months.79 For defendants who have intellectual and other
developmental disabilities, habilitation may take longer,80 but for many of these individuals restoration may
not be possible, in which case Jackson dictates civil commitment or release. Thus, for instance, in United
States v. Duhon,81 a federal district court concluded that although Duhon had received instruction and had
learned some basic facts about the trial process via a competence restoration program, his intellectual disability
prevented him from making “intelligent legal decisions,” thus requiring either release or civil commitment.
The court further found that despite the charges of sexual exploitation of children (based on possession of
sexually explicit photographs), Duhon was not dangerous, meaning that the only option was release.
Following the Jackson decision, many states revamped their statutes to limit the length of time that an
individual can be confined as incompetent to proceed. Yet more than 45 years after the decision, most still do
not require periodic judicial review of those adjudicated incompetent. Even more important is that virtually all
states allow confinement of incompetent defendants for much longer than what is “reasonable,” at least if the
observations of Stone about restorability are accurate. Thirty percent of the states set no time limit on the
confinement of those found incompetent; 22% set the upper limit according to the offense with which the
defendant was charged; 20% identify terms of between one and ten years; and 28% identify a period of one
year or less.82 This variability smacks of the very arbitrariness and irrationality that the Jackson decision was
meant to prevent.
Another issue left unresolved after Jackson is the appropriate disposition of criminal charges pending
against a person found incompetent and unrestorable. The Jackson Court refused to hold that charges should
be dismissed in these cases. Thus, in some states, the charges of defendants who have not been restored after a
“reasonable time” has transpired are dismissed “without prejudice” (meaning that they can be reinstituted) or
they are not dismissed at all.83 The practical import of these practices may be that even if an unrestorable
defendant is converted to “civil” status via civil commitment, he or she may remain confined in a secure
“forensic” facility and provided with fewer privileges.84 The criminal label may also make staff and courts
more willing than would otherwise be the case to extend civil commitment on dangerousness grounds.85

(b) Inappropriate Hospitalization

Some states have not only failed to impose limits on how long an incompetent defendant may be involuntarily
hospitalized, but have also ignored concerns about where treatment takes place. Just as those subject to a
competence evaluation are often unnecessarily hospitalized, those found incompetent as a result of those
evaluations may be needlessly confined. Results of one recent study examining several states’ community-
based competence restoration programs reflect that “[t]hirty-five states have specific statutes that allow for”
outpatient restoration, but “only 16 states actually have a functioning” outpatient program.86 Yet research
suggests that the latter programs can be effective, at less cost.87
The ABA’s Criminal Justice Mental Health Standards propose that inpatient treatment of an incompetent
defendant be permitted only if the court determines by clear and convincing evidence that no less restrictive

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facility exists.88 The ABA also recommends that periodic redetermination of the defendant’s competence
occur at intervals not to exceed 90 days.89 These proposals have much merit, particularly in keeping the
attention of the courts, counsel, and those charged with treatment focused on the issues of competence and
the necessity of hospitalization.

(c) Trying Incompetent Defendants

The various problems that persist after Jackson arise from a trilemma described several years ago by Roesch
and Golding:

[I]f [the state] tries and punishes the defendant despite his lack of competency to stand trial, he has been denied due process; if it commits
him until he is competent to stand trial, which if he is permanently incompetent, he will never be, he has in effect been punished without
trial; and if it finds him incompetent to stand trial yet is not allowed to commit him, he may as a practical matter have been given carte
blanche to commit other crimes.90

Of particular concern to civil libertarians is the second prong of the trilemma—the fact that protecting the
defendant’s constitutional right to due process by precluding a trial when he or she is found incompetent may
paradoxically result in depriving the defendant of other, perhaps equally valuable rights. A defendant who is
permanently incompetent will never have the charges resolved, nor be able to exercise the rights to jury trial,
confront witnesses, call witnesses in his or her own behalf, testify, and have guilt determined beyond a
reasonable doubt. Although many jurisdictions permit incompetent defendants to contest issues that do not
require the participation of the defendant (e.g., the sufficiency of the indictment), these provisions apply to
very few defendants.
One way of breaking this logjam is to try incompetent defendants. A Massachusetts law provides for such a
trial under limited circumstances:

If either a person or counsel of a person who has been found to be incompetent to stand trial believes that he can establish a defense of not
guilty to the charges pending against the person other than the defense of not guilty by reason of mental illness or mental defect, he may
request an opportunity to offer a defense thereto on the merits before the court which has criminal jurisdiction. The court may require
counsel for the defendant to support the request by affidavit or other evidence. If the court in its discretion grants such a request, the
evidence of the defendant and of the commonwealth shall be heard by the court sitting without a jury. If after hearing such petition the court
finds a lack of substantial evidence to support a conviction it shall dismiss the indictment or other charges or find them defective or
insufficient and order the release of the defendant from criminal custody.”91

A variant of this approach is to try nonrestorable defendants, but instead of imprisoning those found guilty,
subject them to the special commitment procedure usually reserved for defendants found not guilty by reason
of insanity [see § 10.10(c)]. This alternative was for a time the official policy of the ABA for those charged
with serious crimes,92 and it is actually implemented in Ohio’s statutes that deal with incompetent, unrestored
defendants.93 It is meant to recognize society’s right to protect itself, while also permitting the defendant to
obtain a judgment of acquittal in those instances where the prosecution cannot prove guilt. Such
postconviction commitment, at a minimum, allows for use of secure facilities and lengthier periods of
confinement than would be permitted for civilly committed individuals.
Neither of these approaches has been adopted nationally. In the meantime, lawyers and mental health
professionals need to acquaint themselves with the consequences of adjudications of incompetence in their

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own jurisdictions. As this discussion has suggested, these consequences extend far beyond temporary
suspension of trial; they may include lengthy hospitalization and an indefinite period in which defendants are
charged with but are not tried.

(d) Incompetent Defendants’ Right to Refuse Medication

Defendants may forgo treatment designed to restore their competence for a number of reasons. Many
individuals with schizophrenia and other severe mental disorders lack insight into their conditions; that is,
they cannot recognize that they are ill and symptomatic, which precludes their seeing any reason to accept
treatment.94 Or, like Donald in Case Study 6.1, some defendants honestly abhor the side effects of the
treatment that will render them competent. And some defendants may refuse treatment in the hope of
avoiding or delaying prosecution. Treatment refusal may also be a defense tactic: A defense attorney may
support a client’s refusal of medication because the client’s remaining psychotic and incompetent would delay
trial or possibly avoid punishment altogether.95 A defense attorney may also fear that the calmer, more
organized demeanor of a treated defendant will undermine a successful insanity defense. Indeed, some
commentators have suggested that one reason the insanity defense is seldom successful before a jury is that the
defendant seems “normal” at trial.96
Despite this latter concern, most 20th-century lower courts concluded that defendants found incompetent
to stand trial may not refuse medication that is likely to restore competence, primarily on the ground that the
state has a strong interest in trying persons charged with crime.97 However, in 2003 the Supreme Court
decided Sell v. United States,98 which called into question this accepted wisdom. Sell, a dentist, was found
incompetent to undergo trial on 56 counts of mail fraud, 6 counts of Medicaid fraud, and 1 count of money
laundering. Despite testimony that medication was the only means of restoring his competence, the Court
invalidated the lower courts’ order that it be administered over Sell’s objection. First, the Court repeated its
admonition in Riggins [discussed in § 6.02(d)] that medication may only be administered over a defendant’s
objection if it is “medically appropriate,” is the least intrusive mean of restoring competence, and does not
infringe upon trial rights (such as the ability to communicate with the attorney and testify relevantly). Second,
the Court opined that even if all of these requirements are met, situations in which the state is authorized to
involuntarily medicate a defendant simply to restore competence “may be rare.”99 Rather, involuntary
medication is permissible only if a compelling state interest is thereby vindicated.
Concluding that Sell has thereby created a robust right to refuse for those found incompetent to stand trial
would be a misreading of the opinion, however, as lower courts’ subsequent opinions have made clear.
Examined closely, Sell recognized three situations where the government’s interest in medication might be
“compelling” and therefore permissible. First, Sell clearly permits involuntary medication of any defendant
who is dangerous to self or others if the medication is necessary to reduce the dangerousness.100 Many
incompetent defendants can be considered treatable under this exception. Second, Sell implies that any
defendant who is incompetent to make treatment decisions can be involuntarily medicated.101 This exception,
if adopted, creates a huge caveat to the general right to refuse medication, since many defendants who are
incompetent to stand trial also lack the capacity to make treatment decisions. Finally, the Court indicated that
even a nondangerous defendant who is competent to make treatment decisions may be involuntarily

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medicated to restore his or her competence to proceed when the charges are “serious.”102 One or more of
these exceptions are likely to apply in most cases. In the unusual case where none do, Sell apparently
contemplates that the defendant be released, although the opinion suggests that in some cases the defendant
might also remain hospitalized pursuant to applicable civil commitment statutes.103
Despite its many ambiguities, Sell could have salutary effects if consciously applied. First, it might lead
prosecutors faced with incompetent defendants to dismiss charges that are not “serious” and seek instead a
“civil” treatment disposition. Furthermore, Sell focuses trial courts’ attention on the crucial issue of whether
medication is necessary to restore competence. Finally, its reemphasis of Riggins should induce courts and
mental health professionals to monitor carefully the effects of medication on defendants’ abilities to
communicate and project an appropriate demeanor.104
Given this last point, the Court is unlikely to be sympathetic to the defense argument noted earlier that the
need to appear “crazy” at a trial at which the insanity defense is raised justifies refusal of medication.105 The
state, it will be remembered, has an independent interest in maintaining the competence requirement [see §
6.02(a)]. Furthermore, better ways of reconciling the competence requirement with the defendant’s desire to
show the factfinder an “insane” or “crazy” demeanor now exist. Technological advances in the last three
decades have made it easy to video-record a defendant prior to administration of competence-restoring
medication, which greatly facilitates the ability of the testifying expert to explain the defendant’s pretreatment
condition to the factfinder.106 In addition, some states allow for jury instructions explaining that the
functioning and adjustment of the defendant at trial may be different now than it was at and around the time
of the alleged offense because of competence-restoring treatment.107
In any event, allowing the defendant to waive the competence requirement is extremely problematic, as
demonstrated by the New Hampshire Supreme Court’s attempt to implement this idea. In State v. Hayes,108
that court ruled that incompetent defendants can forgo medication and be tried while incompetent, provided
that when they decide to do so they are medicated and competent to make such a decision. In those cases in
which such a procedure is appropriate, the period between the time the defendant is taken off medication and
trial is to equal the period between his or her last medication before the offense and the offense itself. Even if
one puts aside problems with a waiver made when the events at trial cannot be anticipated, this approach is
questionable both ethically (because it requires withholding necessary treatment) and practically (because
individuals’ reactions to stopping their medication vary and are not related solely to the duration of the
unmedicated state).
The United States Supreme Court is unlikely to follow Hayes. Nor does Sell appear to pose a major
obstacle to the state’s ability to involuntary medicate unwilling defendants. Only those incompetent
defendants who do not meet criteria for civil commitment and face misdemeanor charges are likely to be able
to avoid medically appropriate treatment altogether. At the same time, the Court’s decisions make clear that
routine medication, or over- or undermedication, is both poor medical practice and unconstitutional to the
extent that it affects a defendant’s ability to participate in criminal proceedings.

6.05. COMPETENCE DURING PROCEEDINGS OTHER THAN TRIAL OR PLEA

HEARINGS

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The focus to this point has been on competence to stand trial or participate in a guilty plea hearing. But the
general thrust of the foregoing discussion applies to many other stages of the criminal process as well. Most
prominently, in theory at least, defendants should also be competent to be sentenced and to participate in
probation or parole revocation proceedings. In these proceedings, a defendant should understand the
government’s allegations and the consequences if the government’s arguments prevail. The defendant should
also be able to consult with counsel (although it should be noted that in revocation proceedings, there is no
absolute right to counsel109). In other types of proceedings, particularly bail hearings, a competence
requirement may not be either applicable or desirable.110 And in still others, such as hearings in mental health
courts and drug courts, the existence of such a requirement is unclear and in any event may be ignored in an
effort to facilitate efficient treatment [see § 2.04(e)].
The most common competence-to-proceed issue outside the guilt adjudication stage is competence to be
sentenced. Here the standard parallels Dusky’s standard [see § 6.02(b)], but is not necessarily identical. In
Saddler v. United States,111 for instance, the Second Circuit held that sentencing must be postponed if the
judge has “reasonable grounds to believe that the defendant may not have a level of awareness sufficient to
understand the nature of the proceeding or to exercise his right of allocution.” (The right of allocution
provides the defendant with an opportunity to speak in his or her behalf and offer information in mitigation
of punishment, but—unlike the right to confront or present evidence at trial—is not constitutionally
based.112) The Ninth Circuit, in Chavez v. United States,113 ruled that the offender subject to sentencing must
understand the nature of proceedings and be able to “participate intelligently to the extent that participation is
called for.”
In practice, the competence-to-be-sentenced standard is probably easier to meet than the competence-to-
stand-trial test. First, although the convicted defendant does have a right to counsel, a sentencing proceeding
is much more informal than a trial, and concern over accuracy is often reduced [see § 9.03(b)]. Thus the
defendant’s ability to consult with counsel or understand the proceedings is not as crucial as in the trial
context. Second, as a corollary to this fact, the right to allocution is not afforded federal constitutional status;
therefore, unless allocution is considered important in a particular case and the defendant’s disability makes
allocution impossible, a finding of incompetence is unlikely.114 As one court has observed, unlike a defendant
in other contexts where competence is significant, a defendant at sentencing has no constitutional rights to
waive.115
If a bona fide doubt as to sentencing competence arises, many states require a mental health evaluation and
a hearing to determine whether the standard is met.116 If the defendant is adjudicated incompetent, he or she
is usually committed to a hospital for treatment until hospital staff believe that competence has been restored.
Thus hospitalization takes the place of imprisonment.
At one time, the ABA recommended a different approach—proposing that sentencing proceed without
any attempt at restoration, but with the proviso that if the person subsequently became competent, he or she
should be allowed to allocute.117 The ABA’s position now is that restoration must be attempted. If it fails,
then in less serious cases, Jackson should apply (release or civil commitment). In more serious cases, in
contrast, the ABA recommends that defendants be subject to the special commitment process applicable to
insanity acquittees.118
Competence to proceed is also an important issue in connection with postsentence collateral proceedings,

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especially in capital cases. Those issues are discussed in connection with competence to be executed [see §
7.08].

6.06. RESEARCH RELATING TO COMPETENCE EVALUATIONS

Since 1970, a substantial literature on competence evaluations has developed.119 This literature has examined
several topics, which we discuss here in turn: the frequency with which the question of incompetence is raised;
the characteristics of defendants found incompetent; and the reliability and validity of competence evaluations
generally. The section following this one reviews clinical measures and interview formats used in competence
evaluations.

(a) Frequency of Competence Evaluations and Findings

Surveys of public defenders indicate that defense lawyers have concerns about their clients’ competence in
between 10 and 15% of their cases.120 However, motions for evaluation are made in fewer than half these
cases of doubted competence.121 Apparently attorneys often use other methods to resolve concerns about their
clients’ competence, including consultation with other attorneys or other third parties (e.g., the client’s
probation officer), or involvement of third parties (e.g., family members) in important case decisions.122
Nonetheless, certain types of cases typically result in referral. One study comparing referred and nonreferred
cases found that the most important predictor of attorneys’ decisions to refer was disorganized speech by the
defendant.123 Pressures from defendants’ families, concerns about possible stigmatizing effects of evaluation
requests, pressure from the court not to question competence, and strategic considerations also influence
attorneys’ decisions to raise the issue of competence.124
Although many cases of doubted competence do not result in an evaluation, competence still appears to be,
in numerical terms, the most significant criminal issue in forensic mental health, with estimates ranging as
high as 60,000 assessments annually across the United States.125 Of those referred for evaluation, Roesch and
Golding reported an average incompetence rate of about 30% (range = 1.2–77.0%), based on a review of 10
studies published prior to 1980.126 About a decade later, Nicholson and Kugler’s review of 30 studies
(including 3 in the Roesch and Golding sample) also resulted in an average of 30% found incompetent, but a
somewhat narrower range (7.3–60%).127 A 1997 review of five studies providing data from seven jurisdictions
reveals a somewhat lower mean proportion of defendants judged clinically incompetent (26%), as well as a
reduced range (13–46%),128 as did a 2008 Virginia study (20%).129
The variance in the proportion of cases resulting in an incompetence finding may be attributable to a
number of factors. First, system differences may influence the extent to which the competence question is
raised in more marginal cases. In jurisdictions with sufficient resources to make a larger number of more
strategic referrals [see § 6.03(c)], lower percentages of incompetence findings would be expected. In contrast,
higher figures for incompetence findings may result when clinicians equate incompetence to stand trial with
psychosis, or when incompetence is used essentially as a dispositional device for defendants believed to be in
need of treatment. When more rigorous (i.e., more valid) evaluation standards and procedures are applied, the
percentage of defendants recommended and adjudicated incompetent is likely to be lower. Increasing

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knowledge and sophistication of examiners over time may have contributed to the modest yet visible
reductions in mean and range statistics for incompetence determinations.
A third reason for the variations found in the studies, and perhaps of greatest concern, is evidence that
opinions about competence can vary as a function of discipline, personal perspective, and experience. Murrie
and his colleagues examined 6,680 reports summarizing competence evaluations conducted by 55 Virginia
mental health professionals (psychologists, psychiatrists, and social workers) who had completed a state-
sponsored, 40-hour training program in forensic evaluation.130 Social workers were three times more likely
than psychologists to recommend that defendants be adjudicated incompetent, and psychologists were twice
as likely as psychiatrists to recommend that defendants be so adjudicated. Even after the researchers controlled
for discipline, a significant amount of variance was attributable to individual evaluators. Most strikingly,
whereas one examiner recommended that 62% of the defendants examined be adjudicated incompetent to
proceed, another recommended that none be so adjudicated.131
Whatever the proportion of those found incompetent, the question of incompetence is raised much more
frequently than it is answered in the affirmative. This means that, as suggested earlier in this chapter [§
6.03(c)], many defendants may be referred for evaluation needlessly. This has not only spurred the
development of outpatient evaluation systems [see §§ 5.02, 5.03], but also has encouraged the creation of the
screening instruments described later in this chapter [§ 6.07].

(b) Characteristics of Incompetent Defendants

A number of studies have examined the characteristics of defendants who have been adjudicated incompetent
to stand trial. In 2011, Pirelli and his colleagues conducted a meta-analysis of 68 studies published between
1967 and 2008 that compared competent and incompetent defendants on a number of demographic,
psychiatric, and criminological variables. Defendants diagnosed with a psychotic disorder were approximately
eight times more likely to be found incompetent than defendants without such a diagnosis. Incompetent
defendants also had higher rates of unemployment and psychiatric hospitalizations than their competent
counterparts.132
Incompetent defendants often are socially marginalized and have extensive histories of involvement with
the legal and mental health systems. For example, 539 incompetent males studied by Steadman were found to
have below-average education, few useful job skills, and few community ties.133 These defendants also usually
had long histories of shuttling between the criminal justice and mental health systems.134 No less than 81% of
the sample had undergone previous psychiatric hospitalizations, and more than two-thirds of the study group
had been previously arrested.135
These results are not surprising. More informative are studies that examine clinical along with
demographic variables, and that compare incompetent defendants with other offender groups. Hoge and his
colleagues compared persons admitted to hospitals in Virginia and Florida for competence restoration with
two other offender groups—randomly selected (unscreened) pretrial jail detainees, and pretrial jail detainees
receiving psychiatric treatment for issues other than competence restoration.136 Table 6.2 displays
demographic and social history findings for these three groups; Table 6.3 displays mental status and clinical
features.

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TABLE 6.2. Demographic and Social History Characteristics of Three Groups of Pretrial Defendants
Group
Measure HI (n = 159) JT (n = 113) JU (n = 94) Test and significance

Age (years)
M 34.2 32.4 29.9 F(2,362) = 7.28
p < .001

Education (years)
M 11.25 11.79 11.45 n.s.

Ethnicity
Nonwhite (%) 37% 32% 28% n.s.
Prior mental health
treatment

Inpatient (%) 79% 64% 10% χ2(2,365) = 119.45

p < .001
Outpatient (%) 77% 64% 15% χ2(2,365) = 97.03
p < .001

Prior arrests
M 1.7 1.7 1.8 n.s.

Note. HI, hospitalized incompetent; JT, pretrial jail detainees receiving psychiatric treatment for reasons other than competence
restoration; JU, unscreened pretrial jail detainees.

TABLE 6.3. Mental Status and Clinical Features of Three Groups of Pretrial Defendants
Group

Measure HI (n = 159) JT (n = 113) JU (n = 94) Test and significance

Prorated Verbal IQa

M 87.97 92.37 90.39 F(2,363) = 4.32

p < .001

BPRS totalb
M 37.02 38.95 28.72 F(2,357) = 50.98
p < .001

BPRS subscales
Psychoticism (M) 6.60 5.71 3.74 F(2,358) = 36.87
p < .001
Depression (M) 7.58 10.84 7.57 F(2,358) = 39.96
p < .001
Hostility (M) 6.58 5.79 4.41 F(2,358) = 23.38
p < .001
Withdrawal (M) 5.89 6.8 5.11 F(2,357) = 9.96
p < .001

Chart diagnosis

Schizophrenia (%) 65% 24% 2% χ2(6,366) = 337.7

p < .001
Affective disorder 28% 59% 0%
(%)

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 Other diagnosis 7% 17% 7%
(%)

Note. Abbreviations as in Table 6.2.

a
Based on three subscales of Wechsler Adult Intelligence Scale—Revised.
b
Brief Psychiatric Rating Scale (18-item, anchored version).

Table 6.2 reveals that although no difference between groups was found in terms of mean years of
education or mean number of arrests, the hospitalized incompetent (HI) group members had a more
significant history of prior psychiatric treatment, both inpatient and outpatient, than the jail-treated (JT) and
jail-unscreened (JU) groups. Table 6.3, on the clinical data, describes additional differences. First, the HI
group had a lower prorated mean Verbal IQ score than the other two groups (although the measurement of
IQ for the HI group may have been less valid, because the prevalence of schizophrenia and active psychotic
symptoms may have depressed IQ test performance). Second, although the JT and HI groups did not differ in
their total scores on the Brief Psychiatric Rating Scale (BPRS), their pattern of symptoms on BPRS subscales
differed. Consistent with the greater prevalence of schizophrenia in the HI group, higher scores were found
on the BPRS Psychoticism subscale. The mean BPRS Depression score, on the other hand, was higher
among JT inmates, for whom affective disorder more often appeared as a chart diagnosis.
All the subjects in Hoge and colleagues’ study were men, and little information has historically been
available regarding the characteristics of women in the context of adjudicative competence.137 This gap in the
literature was addressed by Poythress and his colleagues, who conducted a study with 106 women
defendants.138 The study design mirrored that of Hoge and colleagues, and the results of the studies are
similar in many respects. Most important for purposes of this chapter, performance on measures of
competence-related abilities was similar across genders among comparable groups (e.g., HI women vs. HI
men). In another study that compared competence evaluation findings for male (n = 187) and female (n =
157) defendants, Riley found that psychosis was negatively correlated with adjudicative competence
abilities.139 No overall association was found between gender and judgments of competence to proceed.

(c) Quality of Competence Evaluations

How much confidence can be placed in the opinions derived from evaluations of competence to proceed?
That is, how reliable and valid are such opinions? What level of expertise in the mental health professions is
required before adequate reliability and validity can be achieved? How intensive or broad does the evaluation
need to be to achieve adequate reliability and validity?
In theory, these evaluations should be more reliable and valid than many other types of forensic
evaluations. As noted in § 6.02(b), the competence assessment is focused, functional, and present-oriented; the
most pertinent questions concern the defendant’s ability to assist counsel and to understand the nature of the
legal proceedings. The evaluator usually does not need to speculate about the defendant’s state of mind at
some past or future time, and issues such as specific diagnosis and treatment remain in the background unless
and until it is determined that a significant impairment in competence abilities exists.140 Thus high reliability
and validity of evaluation results might be expected as long as evaluators understand their task.
The available research substantiates these hypotheses, at least when the focus is on clinicians’ categorical

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judgments (i.e., competent vs. incompetent). Exemplary of this research is Poythress and Stock’s examination
of interclinician agreement on a series of 44 cases at the Center for Forensic Psychiatry in Michigan.141 Pairs
of clinical psychologists interviewed defendants and then reached opinions without consultation within pairs;
100% agreement was reached as to the ultimate opinion on competence. Similarly high reliability has been
reported by several other investigators.142
Other research indicates that high reliability occurs even when the evaluators are not mental health
professionals if they have a structure for the interviews and an explanation of the concept of competence to
stand trial. Roesch and Golding reported 90% agreement between trained laypersons (members of the local
Association for Mental Health) and hospital-based forensic clinicians.143 Golding, Roesch, and Schreiber
observed 97% agreement between lawyers and clinicians on global assessments of competence to stand trial,
although they varied in how they formed opinions (lawyers attended more to “crazy” thinking; clinicians
placed greater weight on communication skills and recall ability).144
High interrater reliability on competence is thus possible. However, it must be noted that all of these
studies used samples of examiners who had been trained together, and that all the studies except that of
Poythress and Stock involved use of a structured interview format. Consequently, “real-world” reliability is
probably lower than in the studies reported above, as two recent studies from Hawaii suggest.145
If one adopts the view that the most important role for clinicians is to provide valid information relating to
competence, rather than categorical opinions about it, a more important line of research would examine the
validity of examiners’ clinicians’ evaluations relevant to specific Dusky criteria (i.e., ability to assist counsel,
rational and factual understanding of the proceedings). Some investigators have examined this issue. In a small
sample of 100 cases involving 50 defendants from a single jurisdiction, Skeem and colleagues found
considerable differences in the range of topics addressed in competence reports and, where evaluators of the
same defendant addressed common topics, relatively low agreement (in the range of 25%).146 By contrast,
Mossman and colleagues, using a representative sample of forensic reports, found that psychiatrists reached a
very high level of agreement on both Dusky competence criteria and defendants’ understanding of, reasoning
about, and appreciation of their legal situation.147 In another study, using vignettes that admittedly posed
hard cases, disagreement among 273 psychiatrists and psychologists ranged between 30 and 50%, depending
on whether the test applied was whether the defendant could act in a rational manner, had a rational
understanding of the criminal process, or could assist the attorney “properly.”148 At the same time, 75% of the
respondents arrived at the same ultimate conclusion, regardless of the test applied.149
Research about the quality of examiners’ reports is less encouraging. Christy and her colleagues examined
the content and quality of 143 reports summarizing competence-to-proceed evaluations of adult defendants in
Florida that were conducted by mental health professionals. Although the examiners generally complied with
general requirements of Florida law, many examiners failed to provide the factual bases for many of the
opinions they offered about the defendants’ abilities to understand and participate in the legal process. For
example, although most reports (i.e., well over 80%) included opinions about the defendants’ understanding of
the charges, allegations, possible penalties, and operation of the legal system, as required by Florida law, fewer
(approximately two-thirds) provided the factual basis for these opinions, as also required by Florida law.150
Similarly, Robinson and Acklin used an elaborate coding system to examine the content and quality of 150
reports summarizing competence evaluations of 50 defendants in Hawaii (3 evaluations per defendant).151

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The investigators described the reports as characterized by “pervasive mediocrity,”152 with many of them
failing to include a discussion of relevant information about the examinees’ backgrounds and failing to provide
reasoning and rationales for important opinions.
Data with respect to the validity of competence evaluations are more difficult to obtain. In view of the fact
that judges seldom challenge clinicians’ opinions as to defendants’ competence [see § 6.03(e)], there is no
independent criterion available in the legal system against which to compare clinicians’ opinions. Therefore,
most researchers have examined the validity of competence opinions through study of the kinds of variables
that predict ultimate opinion,153 comparison with “blue-ribbon” experts’ judgments,154 and experts’ analyses
of report quality.155 Early evidence from these types of studies suggested that clinicians frequently, and
erroneously, directly translated diagnoses of psychosis and intellectual disability into findings of
incompetence.156
More recent studies that have examined the correlates of clinicians’ opinions regarding defendants’ trial
competence have been more encouraging. For instance, a study involving 261 defendants admitted to an
Oklahoma State Hospital for pretrial evaluation reported that clinical symptoms and scores on a standard
competence screening measure accounted for most of the independent variance in clinicians’ judgments
regarding competence.157 A meta-analysis of 30 studies comparing competent and incompetent defendants
revealed that the factors most strongly related to clinicians’ recommendation of an adjudication of
incompetence were (1) poor performance on psychological tests or interviews that specifically evaluate
competence-related skills, (2) diagnosis of a psychotic disorder, and (3) severe symptoms of
psychopathology.158 Finally, using latent structure analytic methods to make inferences about examiners’
accuracy, Mossman and colleagues found that when psychiatrists based their conclusions on identical, high-
quality written material, they appeared to be very accurate in their judgments about adjudicative
competence.159
Taken in sum, these studies suggest that examiners trained in the nature of the competence construct
typically achieve high reliability and perhaps high validity as well. Furthermore, these levels of psychometric
rigor can be achieved in an outpatient examination rather than after an extended period of hospitalization.160
Quality is not diminished when trained community-based clinicians conduct examinations; indeed, quality
may even improve.161

6.07. STRUCTURED EVALUATION FORMATS

Many interview tools are available to assist in competence evaluations. Some tools function mainly as
screening instruments, designed to provide quick identification of those defendants in need of referral for a
more extensive competence evaluation. Other tools are nonstandardized, semistructured interviews, which are
commonly more elaborate devices meant to guide the entire competence evaluation. These instruments allow
an examiner to focus more on a defendant’s decisionmaking abilities (although they provide no guarantee that
the examiner will do so). Finally, the measures developed most recently systematically assess Dusky-related
abilities, using interview formats that are relatively standardized. These last tools have been developed with a
greater degree of conceptual and psychometric sophistication than earlier measures and facilitate consideration
of the examinee’s reasoning and decisionmaking abilities. In this section, we briefly discuss and describe

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exemplars of these different types of adjudicative competence measures. For more comprehensive evaluations
of the more commonly used measures, we recommend reviews by Grisso,162 Stafford and Sellbom,163 Zapf,
Roesch, and Pirelli,164 and Acklin.165

(a) Screening Instruments

As noted, competence screening instruments aid in rapidly identifying defendants who may have
compromised competence-related abilities. Such individuals can then be referred for more extensive (and
costly) evaluations, whereas those defendants “screened out” as presumptively competent can proceed to
adjudication. Arguably, such measures were more important in decades past, when most competence
evaluations were conducted on an inpatient basis and involved huge expenditures of time and professional
effort. Nevertheless, screening procedures are still used in some jurisdictions.166

(1) Competency Screening Test

The Competency Screening Test (CST; the instrument used in Case Study 6.1) is a 22-item sentence
completion test for use in screening defendants for competence. Administration and scoring are both
standardized. Each item is scored on a scale of 0–2, with 2 meant to represent a sentence completion showing
a high level of legal comprehension, and 0 representing a low level.167 Administration time is about 25
minutes.168 Representative items include “When I go to court, the lawyer will . . . ,” “When they say a man is
innocent until proven guilty, I . . . ,” and “What concerns Fred most about his lawyer. . . . ” The test
developers empirically established a cutoff score of 20; that is, defendants who score below 20 are to be
“screened in” for a more comprehensive evaluation.169
Research with the CST indicates that its classification errors are most often false positives (i.e., competent
persons labeled incompetent).170 This is the type of error one would want for a screening instrument, because,
at least in serious cases, more harm results from prematurely labeling defendants competent and subjecting
them to a trial they may not understand than from subjecting defendants who are competent to a more
thorough evaluation. At the same time, the false-positive rate should be sufficiently low that the instrument
prevents unnecessary full evaluations, especially if they are to take place in the hospital. Unfortunately, the
CST’s false-positive rate may be undesirably high (ranging from 14.3 to 28.6%).
Administration and scoring of the CST explain these results. Illiteracy and below-average intellectual
functioning in offender samples may make the written administration of the measure problematic. Defendants
with low intelligence may have difficulty relating to the hypothetical nature of the items; for instance, for the
stem “Jack felt that the judge . . . ,” they may founder simply in wondering who “Jack” is. The CST also
appears to incorporate a scoring bias against defendants with negative views of the legal system.171 For
example, in response to the stem “Jack felt that the judge . . . ,” “was fair” is a 2-point (competent) answer, but
“was unjust” is a 0-point (incompetent) answer. Similarly, a 0-point response to “What concerns Fred most
about his lawyer . . . ” is “is tardiness.” Presumably, the authors were attempting to differentiate defendants
based on their understanding of the way the system is supposed to work, but in some instances the scoring
criteria fail to distinguish incompetent defendants from those who are either cynical about the system (perhaps

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correctly in some instances) or who expect (again often accurately) unfavorable dispositions of their cases.
Another problem with the CST is that it is largely a measure of knowledge as distinguished from ability, so
that it does not assess discrete psycholegal abilities related to specific Dusky criteria. We know of no empirical
evidence that shows whether the CST adequately samples relevant competence-related abilities; it yields a
number rather than a descriptive appraisal of these abilities.172

(2) Georgia Court Competency Test

Like the CST, the Georgia Court Competency Test (GCCT) was developed as a screening device to identify
obviously competent defendants. The GCCT has two versions. The original GCCT consisted of 17 questions
administered in a fixed sequence and grouped into six categories:173 (1) Picture of Court (consisting of seven
questions about a drawing of a vacant courtroom—e.g., “Where does the Judge sit?”); (2) Functions
(consisting of five questions concerning roles and functions of key participants—e.g., “What do the witnesses
do?”); (3) Charges (consisting of two questions—e.g., “What are you charged with?”); (4) Helping the Lawyer
(one question: “How can you help your lawyer defend you?”); (5) Alleged Crime (one question: “What
actually happened about the charge you are here on?”); and (6) Consequences (one question: “If the jury finds
you guilty on this charge, what might they do to you?”). Examiners use explicit scoring criteria to assign
weights to various items (from 0 to 10 points, depending on the item) to arrive at a score from 0 to 50. Points
are multiplied by 2 to yield a range of 0–100. A more extended evaluation is recommended for defendants
who score 69 or below, and administration time is about 10 minutes.174
A revised, 21-item version of the GCCT was developed at the Mississippi State Hospital (GCCT-
MSH).175 The additional items focus on the defendant’s familiarity with his or her attorney (“What is your
attorney’s name? How can you contact him/her?”) and with expectations about courtroom behavior (e.g.,
“What will you do during the trial?”). In revising the instrument, item weights were adjusted in order to
preserve the point range of 0–100 and cutoff score of 69.
Factor analysis of the GCCT has yielded a stable three-factor structure: (I) General Legal Knowledge, (II)
Courtroom Layout, and (III) Specific Legal Knowledge.176 Yet one-third of the GCCT items (Picture of
Court) deal with relatively cosmetic and superficial issues about “who sits where,” which do not appear to tap
any meaningful dimension regarding understanding of, or participation in, the legal process. As Nicholson has
noted, “A major limitation of the test is that the underlying factors do not correspond clearly to the
competency construct as adumbrated by statute and case law. . . . The factors do not reflect an adequate
sampling of the domain of relevant abilities.”177

(3) Computer-Assisted Determination of Competency to Proceed

We mention only in passing a third competence screening tool, the Computer-Assisted Determination of
Competency to Proceed (CADCOMP),178 which involves the administration of 272 questions that tap
various content areas, including social history, psychological functioning, and legal knowledge, to which the
defendant provides self-report responses on a laptop computer. The items are primarily objective in format
(yes–no, true–false, multiple-choice), and the output from the program is a computer-generated, narrative

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report that summarizes the data provided by the defendant’s self-report. The data then form the basis for
further clinical interview.
In 1997, we raised several concerns about the CADCOMP that have yet to be addressed in research. In
particular, we noted that the initial estimate of its predictive validity (r = .55) was almost certainly inflated
because of criterion contamination; in the validation study, competence judgments based on the CADCOMP
reports were made by the same clinician who provided the criterion judgments of competence.179 A second
concern was the CADCOMP’s extensive reliance on defendants’ self-reports, given the potential advantages
that defendants may perceive (i.e., delaying or avoiding trial) if they present themselves as impaired. Finally,
we noted that the overall length of screening evaluations using the prescribed CADCOMP procedure would
be likely to exceed the average time required for full competence assessments using other available methods.
The measure’s inefficient nature probably explains the absence of further research on it. As a result, we cannot
recommend its use at this time.

(b) Semistructured Interviews

Historically, the evaluation procedure most commonly used in comprehensive competence assessments has
been the nonstandardized interview. Initial interview protocols were unstructured, lacked any pretense of
psychometric sophistication, and were brief menus listing topics that clinicians were encouraged to address.
The first such measure was Robey’s checklist,180 and others soon followed.181 Subsequently, mental health
professionals developed semistructured interview protocols or structured professional judgment tools that
included suggested interview questions and some indication of the kinds of responses that would warrant
particular ratings of psycholegal capacity. We review here three of the most carefully developed instruments of
this type.

(1) Competency Assessment Instrument

The Competency Assessment Instrument (CAI) was developed as part of a research project funded by the
National Institute of Mental Health (NIMH) at Harvard during the late 1960s.182 It consists of a
semistructured interview that provides the basis for 5-point Likert ratings (1 = “total incapacity” to 5 = “no
incapacity”) on 13 functions (e.g., “appraisal of available legal defenses”; “planning of legal strategy, including
guilty pleas to lesser charges where pertinent”; and “capacity to testify relevantly”). The CAI manual
emphasizes that the weight to be given particular functions is a matter for the court to decide, but it suggests
that “a majority or a substantial accumulation” of scores of 3 or less may be cause for inpatient observation.183
Although the CAI manual provides suggested questions for examiners to use in probing each area, neither
the administration nor the scoring of the CAI is standardized. Furthermore, there are no research-based
algorithms for combining the various individual ratings into more general indices of functional ability (e.g.,
capacity to assist counsel, factual understanding of proceedings); nor are there clinical norms for interpreting
ratings that clinicians might assign to the various functions inquired about. Thus whether the CAI scoring
system is helpful is essentially unknown.
However, the CAI can play an important role in competence evaluations by providing an organized format

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for guiding the interview. Furthermore, the CAI manual includes a large number of sample interview
questions and case examples that may be helpful to clinicians learning to perform competence evaluations.184
Finally, the 13 functions or content areas have high face validity, which may facilitate the CAI’s acceptance
among judges and attorneys.185

(2) Fitness Interview Test—Revised

The name of the Fitness Interview Test—Revised (FIT-R) reflects its roots in Canadian law, which refers to a
defendant’s “fitness” to stand trial,186 but is in all relevant respects similar to American concepts of
competence to stand trial. The FIT-R is a 16-item assessment tool that can be used with adults or
adolescents, and takes between 30 and 45 minutes to administer. It is not a test; rather, the FIT-R structures
the examiner’s assessment of the defendant’s competence to proceed. Items in the first section—
Understanding the Nature or Object of the Proceedings: Factual Knowledge of Criminal Procedure—focus
the examiner’s inquiry on the defendant’s understanding of the arrest process, current charges, the role of key
participants in the legal process, available pleas, and court procedures. Items in the second section—
Understanding the Possible Consequences of the Proceedings—examine the defendant’s understanding and
appreciation of the possible penalties, available legal defenses, and likely case outcomes. Finally, the third
section—Communication with Counsel—inquires about matters that include the defendant’s abilities to
participate in a defense, share relevant information with counsel and at trial, interact and communicate with
counsel, plan and consider legal strategies, participate in his or her defense, challenge witnesses, testify, and
manage courtroom behavior. Research conducted to date indicates that the FIT-R has adequate psychometric
properties.187

(4) Interdisciplinary Fitness Interview

Rarely used since its development over 40 years ago, but deserving of discussion because of its unique
approach, is the Interdisciplinary Fitness Interview (IFI),188 which was subsequently revised (the
Interdisciplinary Fitness Interview [IFI-R]) and was evaluated by Golding, Roesch, and Schreiber.189 The IFI
is a semistructured interview that results in ratings from 0 (“no or minimal incapacity”) to 2 (“substantial
incapacity”) on 5 aspects of specific legal functioning (having to do with the Dusky criteria); 11 items
representing psychopathology (e.g., hallucinations, amnesia, and intellectual disability); and 4 items having to
do with overall impressions of competence (e.g., overall fitness, rating of confidence in judgment, factors
taken into account in reaching the conclusion).
The unique feature of the IFI is that it is intended to be administered jointly by a mental health
professional and an attorney (presumably defense counsel). Having the lawyer present affords the opportunity
to observe attorney–client interactions, which may yield valuable data regarding capacity to assist counsel. It
also facilitates a level of expert–attorney case consultation that may enhance the clinician’s capacity to take
into account contextual issues in making judgments about competence. To this end, the raters also record,
again on a scale of 0–2, the weight each particular dimension is given in the formation of the opinion.
Golding and Roesch incorporated this second scale (Influence on Decision) on the assumption that the

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significance of a given dimension will vary with contextual factors. The one published study on the IFI found
that it is a time-efficient interview format that produces rich observations with high reliability.190
The stipulation that the IFI be administered by a mental health professional and a lawyer, while
commendable in theory, has posed practical limitations to its use. In our experience, most attorneys have
neither the time nor the inclination to observe, much less participate in, most evaluations of competence to
proeed.191 Golding eventually revised the IFI (IFI-R) to require ratings by just the examining clinician, after
extensive consultation with defense counsel192—a revision prompted in large part because of difficulty
experienced in trying to engage attorneys in the evaluation process.193 No one has published research using
the IFI-R; thus it is probably still best characterized as an experimental instrument. Like the CAI and FIT-R,
however, it may serve as a useful interview-structuring device.

(c) Second-Generation Adjudicative Competence Measures

In this section, we discuss two newer measures of adjudicative competence. Although these newer measures
differ from each other in important ways, each was created with greater attention to the discrete functional
abilities articulated in Dusky and with a greater emphasis on standardized administration, objective scoring,
normative interpretation, and psychometric development than previously existing measures. Thus these newer
measures may come closer to meeting the expectations, either explicit or implied, in Daubert v. Dow
Pharmaceuticals regarding demonstrated empirical support for forensic methods [see § 1.04(c)].

(1) MacArthur Competence Assessment Tool—Criminal Adjudication

The MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA)194 is the outgrowth

of nearly a decade of research funded initially by the MacArthur Foundation and later by the NIMH. Tested
in a series of studies published in the 1990s,195 the MacCAT-CA is a 22-item measure that is administered as
a semistructured interview. Administration time runs between 25 and 45 minutes, and the tool yields
quantitative indices of three competence-related abilities: Understanding, Appreciation, and Reasoning.196
Each index is related to the Dusky criteria. The Understanding index is related to factual understanding of
proceedings, the Appreciation index to rational understanding of proceedings, and the Reasoning index to
capacity to assist counsel. Each index also reflects the distinction (first developed by Bonnie197) between
adjudicative competence abilities that promote a reliable and dignified process, and decisional capacity needed
to exercise autonomy on decisions involving pleading guilty. Table 6.4 illustrates the convergence of these
influences within the structure of the MacCAT-CA and identifies the specific legal content for each item for
the various measures.

TABLE 6.4. Structure and Item Content of MacCAT-CA Measures

Psycholegal ability Bonnie’s theoretical domain Legal item content & relevant Dusky criterion

Factual understanding of proceedings

Understanding Baseline capacity 1. Understand roles of defense attorney and prosecutor.
2. Understand act and mens rea elements of a serious offense.
3. Understand elements of a less serious offense.

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 4. Understand role of a jury.
5. Understand responsibilities of a judge at a jury trial.
6. Understand sentencing as function of offense severity.

Decisional competence 7. Understand process of guilty plea.

8. Understand legal rights waived in pleading guilty.

Ability to assist counsel

Reasoning Baseline capacity 9. Reasoning about evidence suggesting self-defense.
10. Reasoning about evidence related to criminal intent.
11. Reasoning about evidence related to provocation.

12. Reasoning about motivation for one’s behavior.

13. Reasoning about impact of alcohol on behavior.

Decisional competence 14. Ability to identify information relevant to choice of trial versus
accepting a plea agreement.

15. Ability to identify advantages and disadvantages of a choice (i.e., to

plead guilty or go to trial).

16. Ability to compare options (i.e., pleading guilty vs. going to trial) in
terms of advantages and disadvantages.

Rational understanding of proceedings

Appreciation Baseline capacity 17. Plausibility of beliefs re: being treated fairly.
18. Plausibility of beliefs re: attorney being of assistance.

19. Plausibility of beliefs re: disclosing information to lawyer.

20. Plausibility of beliefs re: probability of being convicted.

21. Plausibility of beliefs re: severity of sentence if convicted.

Decisional competence 22. Plausibility of beliefs re: likelihood of accepting plea offer.

The MacCAT-CA evaluates Understanding and Reasoning by having the examiner read a vignette
describing a hypothetical bar fight between “Fred” and “Reggie,” which results in an aggravated assault charge
against Fred. The defendant-examinee then responds to a series of questions about Fred’s situation and his
options regarding resolution of his criminal charge. Answers to these questions provide insight about how well
the examinee can comprehend the adjudicatory process, discern facts that are most relevant to a criminal case,
and weigh advantages and disadvantages of going to trial versus accepting a plea offer.
Items that gauge Understanding are scored against explicit criteria. For example, item 5 asks what a judge
does during a jury trial. The examinee receives credit for articulating that the judge (1) instructs the jury about
the law, (2) rules on the admissibility of evidence, (3) ensures that rules are followed in order to ensure
fairness, and (4) may be responsible for imposing sentence. If an examinee cannot articulate at least two of
these duties, the examiner provides a short description of important judicial functions, and then asks the
examinee to paraphrase this description; the response is scored for accuracy. This feature of the MacCAT-CA
is intended to test how well the examinee can assimilate and articulate relevant information that he or she may
not have known at the outset of the evaluation.198 In other words, the Understanding section tries to evaluate
the examinee’s capacity to learn, not just regurgitate what he or she knows already.
Responses on the Reasoning measure are also scored against explicit criteria that refer to how well the

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examinee reasons and discusses the types of material relevant to assisting counsel. To work with counsel in
strategizing about a defense, an examinee has to recognize and disclose relevant case facts. Attorneys debriefed
about their experiences with clients whose competence they doubted have reported that about 70% of these
clients have difficulty recognizing and relating relevant factual information.199 To gauge this capacity, items
9–13 of the MacCAT-CA describe five different pairs of facts in Fred’s case. In one item, for example, the
examiner tells the examinee (1) about the music being played where the bar fight with Reggie occurred, and
(2) the fact that Fred called an ambulance when he saw that Reggie was hurt. The examinee’s tasks are to say
which of these facts is more relevant if Fred wants to explain his behavior (i.e., whether he was trying to hurt
Reggie or not), and why the chosen fact is more relevant. Other items juxtapose facts relevant to such issues as
self-defense, provocation, and the effects of intoxication. Items 14–16 on the Reasoning measure are based on
information the examiner describes about Fred’s options (going to trial vs. entering a plea agreement) and
about how Fred’s attorney views the likely outcomes associated with each option. The examiner then asks the
examinee what other things he might want to know before offering advice. Answering these questions
requires the examinee to perform mental tasks relevant to weighing one’s legal options, such as considering
and evaluating potential advantages and disadvantages of accepting a plea or going to trial. The examinee’s
explanation of why or how one option is better than the other answers also shows how well the examinee can
grapple with and talk about alternative routes to adjudication of a criminal charge.
The Appreciation section of the MacCAT-CA asks questions about how the examinee thinks things
might transpire in his or her own case, regardless of what is supposed to happen. Here the MacCAT-CA
focuses on the rationality of the examinee’s beliefs about the legal system and on the degree to which
delusional or otherwise irrational beliefs influence what the examinee anticipates will happen. The examinee
responds to questions about the six issues shown at the bottom of Table 6.4 (e.g., “Compared to other people
who are in trouble with the law, do you think you are more likely, less likely, or just as likely to be treated
fairly by the legal system? [Answer.] What are your reasons for thinking that?”).
Although some clinical interpretation of responses is required to score Appreciation items, the manual
provides guidelines and examples to facilitate these scoring decisions, and interrater reliability for this measure
is good.200 The point of these questions is to discern not so much what the examinee thinks of the legal
system as why he or she holds those views. Suppose, for example, that a defendant, Mr. Gomez, answers “less
likely” to the question in the preceding paragraph about fairness, and then explains that he belongs to an
ethnic minority and that the ethnic-majority-dominated legal system is stacked against him. Whether the
examiner agrees with this examinee’s assertion or not, it’s a plausible, nondelusional, understandable point of
view shared by many people—and hence the response would receive a 2-point score. By contrast, suppose that
Mr. Gomez responds “less likely” to the questions about fairness, and then claims that he is Captain James T.
Kirk of the starship Enterprise and explains that the judge and his attorney are Klingon enemies. Even if
“Captain Kirk” has described correctly (in Fred’s case) what courtroom personnel are supposed to do, knows
he faces a robbery charge, and can identify the charge’s potential prison sentence correctly, his answers to the
Appreciation items should dissuade an examiner from concluding that he is competent. In general, the
specific function of the Appreciation section is to identify individuals like Mr. Gomez/“Captain Kirk” who
understand facts about the legal system, but have delusional beliefs or other mental symptoms that prevent
them from taking a rational view of how the legal system affects them.

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 The developers of the MacCAT-CA evaluated their instrument’s psychometric properties and established
its norms using a large (N = 729), multisite (eight states) study that involved three relevant offender samples:
hospitalized incompetent defendants undergoing competence restoration treatment (HI, n = 283); inmates
receiving some form of mental health treatment in jail (JT, n = 249); and unscreened (i.e., randomly selected)
inmates from the jail’s general population (JU, n = 197). The developers’ findings showed that the MacCAT-
CA measures had strong internal consistencies (alphas = .81 to .85) and interscorer reliability (intraclass
correlation coefficients = .75 to .90). MacCAT-CA scores also had (as expected) positive associations with
estimated intellectual ability (r’s = .14 to .41) and global clinician ratings of competence (HI group only, r’s =
.36 to .49), and (again, as expected) negative associations with self-reported (r’s = –.21 to –.31) and
interviewer-rated (r’s = –.40 to –.52) symptoms of psychosis.201 Tables for each of the three sections show
percentile rankings (using the JU sample as a baseline for the Understanding and Reasoning measures, and a
rationality assessment as a baseline for the Appreciation measure) and provide interpretive cutoff scores for
judging the degree of impairment (minimal or no impairment, mild impairment, clinically significant
impairment).202
Although three scores result from the MacCAT-CA, they are not combined to generate a categorical index
of competence; nor should an examiner interpret individual section scores rigidly to arrive at a conclusion
about level of impairment. The MacCAT-CA provides normative estimates of capacity with respect to
understanding, reasoning, and appreciation, but it is not intended as a “test” of competence per se. For one
thing, the MacCAT-CA does not systematically assess all relevant abilities (e.g., adequate memory of events
related to the defendant’s own case; disorganization and incoherence of speech that can affect communications
with counsel). Furthermore, the examinee’s current level of mental symptoms and other factors such as poor
effort and malingering are not directly measured by the MacCAT-CA and may adversely affect performance
on it. Finally, calculations based on tables from the MacCAT-CA manual show that the instrument has well-
below-perfect accuracy in discriminating between presumptively competent and incompetent defendants,203
especially with respect to the Appreciation inquiry.204 As is true for any assessment instrument, the
MacCAT-CA is but one component of a broader clinical inquiry into adjudicative competence.
Clinicians who consider using the MacCAT-CA should also be aware of other potential limitations. One
concern stems from the use of a hypothetical vignette to assess Understanding and Reasoning.205 This form of
inquiry may not be well suited for intellectually limited defendants (a group with which the test was not
normed) and other examinees who have difficulty thinking hypothetically but may be quite adept at talking
about and discussing specifics of their own cases, which is what the Dusky standard requires. Some authors
have also found fault with the tool’s psychometric properties.206 A final concern is that in a substantial
fraction of evaluations (40% in one small but illustrative study), examiners cannot complete administration of
the MacCAT-CA. Reasons for this include clinical phenomena that are commonly encountered in
competence evaluations: severe thought disorganization; irritability; manic speech patterns that interfere with
presenting items uninterrupted or that result in incoherent responses; poor comprehension of the hypothetical
scenario; poor motivation (including feigned deficits with repeated “I don’t know” responses); and language
barriers.207 Despite these limitations, the ample body of published research performed during and since the
tool’s development commends the MacCAT-CA from the standpoint of the evidentiary considerations
regarding reliability outlined in Daubert.208

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 (2) Evaluation of Competency to Stand Trial—Revised

Another adjudicative competence instrument is the Evaluation of Competency to Stand Trial—Revised

(ECST-R).209 The choice of content for the ECST-R was informed by a panel of mental health and legal
experts,210 while the selection of specific items for the measure was informed by findings of empirical studies.
Like the MacCAT-CA, the ECST-R includes component measures that relate to separate Dusky criteria, and
indeed the ECST-R scales are named for the criteria to which they relate: Consult with Counsel (CWC, 6
items); Factual Understanding of the Courtroom Proceedings (FAC, 6 items); and Rational Understanding of
the Courtroom Proceedings (RAC, 7 items). The ECST-R also includes a brief measure, the Atypical
Presentation (ATP, 28 items) scale, to screen for possible feigning.211
The CWC items are queries about the client’s perceptions and experiences in working with his or her
attorney, including issues such as their shared expectations of each other, agreements and disagreements, and
so forth. Based on the defendant’s self-report, the examiner uses a 5-point scale (see Table 6.5) to record
ratings that combine judgments of the presence of certain types of psychiatric symptoms and their impact on
capacity to work with the attorney. FAC items evaluate basic knowledge such as the roles of courtroom
participants, name and nature of the defendant’s pending charges, and awareness of risks involved in talking
with the state’s attorney.Like the MacCAT-CA Understanding measure, the ECST-R makes explicit
provision for disclosing and retesting, to help the examiner find out whether a defendant’s initially incorrect
responses reflect mere ignorance or lack of capacity. Responses to most FAC items are rated on a 5-point
scale to indicate the accuracy of a defendant’s response as a function of examiner effort and/or psychotic
content (0 = initial response correct; 1 = correct response provided when prompted; 2 = correct response
provided with attempts to educate; 3 = incorrect response despite efforts to educate; 4 = response grossly
psychotic and unrelated to the question). RAC items evaluate the presence and influence of delusional
thinking with respect to several important perceptions (e.g., best, worst, or likely trial outcome) and decisions
(e.g., whether to testify; consideration of possible plea offer) relevant to the adjudicatory process. Most RAC
items are scored on the scale shown in Table 6.5.212

TABLE 6.5. ECST-R Item Rating Scale

Rating Clinical Meaning of Assigned Ratinga

0 Not observed

1 Questionable clinical significance

2 Mild impairment, unrelated to competency

3 Moderate impairment, peripherally related to competency (will affect but not impair competency)

4 Severe impairment, directly related to competency (will substantially impair competency)

Note. Rating scale used for items 1–6, 12b, 13b, 14b, 15, 16, 17.
a
Clinicians are instructed to rate various forms of psychopathology, but predominantly psychotic features—e.g., “Rate psychotic perceptions . . .
” (item 1); “Rate the effects of delusions and hallucinations . . . ” (item 3); “Rate Psychotic symptoms” (items 12b, 13b, 14b, 15–17).

For all three measures (the CWC, FAC, and RAC), item ratings are summed to yield scale scores. These
scale scores are then converted to T-scores213 by using a table in the ECST-R manual.214 The T-score values
are used for clinical interpretation to indicate varying degrees of functional capacity, based on norms

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developed in studies with offender samples. Descriptively, performance on the ECST-R scales, as indicated by
specific ranges of T-scores, are normal to mild impairment, moderate impairment, severe impairment, extreme
impairment, and very extreme impairment.215 Another feature unique to the ECST-R is that it provides
Certitude scores,216 indicating the confidence level in the classification of impairment for CWC, FAC, and
RAC scores at different levels.
The ECST-R has excellent psychometric properties. Combining subjects (N = 411) from six studies across
multiple sites, Rogers and colleagues reported internal consistencies ranging from .83 (CWC) to .89 (RAC)
and interrater reliabilities of .98–.99.217 Studies also demonstrate significant positive associations of ECST-R
scores with MacCAT-CA scores and with clinical judgments of experienced clinicians.218
The ECST-R has a number of features that make it an attractive tool for use in the assessment of
adjudicative competence. It covers a wide array of relevant legal content, and structures the inquiry into
separate scales, each of which relates to a discrete Dusky criterion. The administration is relatively
standardized, yet flexible enough to permit examiners to follow up on initial responses for additional
information or clarification. The FAC scale provides for explicit disclosure and testing with a defendant who
may be initially uninformed about relevant legal issues. Moreover, unique among adjudicative competence
measures, the ECST-R includes a brief assessment of possible feigning, which can help a clinician decide
whether to pursue the possibility of malingering. Finally, as noted, the measure has good psychometric
properties.
No instrument is perfect, of course. From the standpoint of Daubert’s evidentiary requirements, the
ECST-R still has a limited research base.219 The ECST-R also has potential limitations related to the
construction of some of the rating scales and the internal validity of the scores obtained. For instance, while
item 1 of the CWC rates the defendant’s “psychotic perceptions,” and item 3 calls for rating “the effects of
delusions and hallucinations,” no provision is made for rating how other forms of impairment or
psychopathology (e.g., intellectual disability, depression, or anxiety) affect performance on these items.
Another problem, related to the scale construction found in Table 6.5, is that the examiner rates gradations of
psychopathology from 0 (not observed) to 4 (severe impairment); yet only a rating of 4 is meant to indicate
any adverse impact on the functional ability being measured. So for all items that use this rating format, for
legal purposes a defendant is either unimpaired (ratings = 0–3) or substantially impaired (rating = 4). At the
same time, according to the rating guideline, a rating of 3, which is an indication of “moderate”
psychopathology, “will affect but not impair competency.” If moderate psychopathology will “not impair
competency,” then in what fashion will it “affect . . . competency”? Might not defendants with ratings of 3
have impaired competence-related capacities?
Related to this last point is the possibility of inconsistency between item ratings and scale interpretations.
Suppose, for example, that a defendant receives a score of 2 or 3 on each of the 6 items on the CWC. These
scores indicate “no impairment” on each of the items. Yet the resulting CWC scale score would be 12 to 18,
and this would convert to a T-score ranging from 75 to 90, which the manual states should be interpreted to
mean that the defendant has an impairment of “severe” or worse in rational ability to consult with counsel.220
Similarly, on the RAC, a defendant without self-defeating motivations who scores 2 or 3 for psychotic
symptoms on items 12–17 would receive a T-score ranging from 65 to 75, which translates into “moderate”
and “severe” impairment, respectively, with respect to rational understanding of proceedings, despite a lack of

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impairment on each individual item. Forensic examiners who use the ECST-R could have to explain these
incongruities if they should arise in actual cases. Even in cases that do not exemplify the particular response
patterns described above, clinicians may find difficult to explain, under hostile cross-examination, how a total
scale’s interpretation can differ so much from its parts.

(d) Summary

This brief review of instruments and interview formats for evaluating competence to stand trial reveals a
variety of approaches, differing in design, purpose, and scope. The instruments designed for competence
screening (e.g., the CST and GCCT) offer efficient (i.e., brief) administration, as well as the merits of
standardized administration and scoring. However, the instruments focus almost entirely on the defendant’s
understanding of the criminal process and may have limited utility beyond screening out defendants who are
“obviously competent.” Cases not “screened out” require further clinical inquiry, which then offsets at least
some of the efficiency of the screening methods.
The CAI, FIT-R, and IFI, which are semistructured interviews, do a better job of sampling the domain of
relevant legal issues. Among these three tools, the FIT-R appears to be the best by virtue of its availability,
comprehensiveness, and research base.
The MacCAT-CA and ECST-R attempt to rectify many of the problems with the earlier measures. Each
taps information or tests capacities related to discrete Dusky criteria. Both use highly standardized question
structure, and both explicitly provide disclosure-and-test procedures to help distinguish between mere lack of
knowledge and incapacity to learn and retain legal information. Both also allow comparison of the examinee
to relevant populations [see, e.g., the Keith Stiller report, § 19.02(a)]. Although these more structured
measures are not universally accepted and have limitations of their own, they represent advances in both
conceptual sophistication and empirical validation.

6.08. SPECIAL POPULATIONS

In this section, we consider briefly research findings and clinical assessment issues relevant to assessment of
competence in two special populations. One population consists of defendants with intellectual disabilities, for
whom special assessment tools have been developed. The other involves juveniles who are tried in adult
criminal court. (We cover issues of adjudicative competence at the juvenile court level in Chapter 14.)

(a) Defendants with Intellectual Disabilities

When a motion for competence evaluation is made and evidence suggests that the defendant may have an
intellectual disability, some states require evaluators appointed by the court to have had special training and/or
expertise in developmental disabilities. In Florida, for example, at least one of the evaluators must be approved
by the developmental services unit of Florida’s Department of Children and Families. Furthermore, all court-
appointed examiners must be qualified to evaluate persons with intellectual or other developmental
disabilities.221

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 The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR)222
was developed specifically to evaluate persons with impaired intellectual functioning. According to its authors,
people with intellectual disabilities are not well served by existing instruments, for several reasons. First, open-
ended questions such as those contained in conventional interview approaches (CAI, FIT-R, IFI) may not
yield accurate results with individuals with limited expressive skills; an objective format, such as use of
multiple-choice items, is preferable because it “reduces the demand on the respondent to answer
independently.”223 Second, existing tests do not necessarily use vocabulary and syntax at an appropriate level
for persons of reduced language ability.224 Third, instruments that focus on symptoms rather than concrete
legal functioning are inappropriate for persons with intellectual disabilities.225
The CAST-MR consists of 50 items in three sections, the first two of which require approximately a
fourth-grade reading level and the last of which is administered orally. Face validity for the CAST-MR items
was established by two groups of experts, who rated the appropriateness of proposed items. Section I includes
25 multiple-choice items that examine defendants’ understanding of basic legal terms (e.g., “What does the
judge do?” [(a) defends you, (b) decides the case, (c) works for your lawyer], and “What is a felony?” [(a) a way
to get off, (b) a very serious crime, (c) a person who talks in court]). Section II has 15 multiple-choice items
that explore defendants’ skills to assist in their defense (e.g., “What if the police ask you to sign something and
you don’t understand it? What would you do?” [(a) refuse to talk to them, (b) sign it anyway, (c) ask to see
your lawyer]). The final 10 items, in section III, solicit narrative responses from the defendant and relate to
the understanding of case events (e.g., “What were you doing that caused you to be arrested?” and “Tell me
what happened when the police came?”). The test manual provides guidelines for scoring each item either 0,
½, or 1.226
Pilot studies conducted in the development of the CAST-MR revealed satisfactory psychometric
properties. For example, interscorer reliability for section III of the CAST-MR (the nonobjective, narrative
section) was at acceptable levels (average agreement = 83% for ten pairs of examiners).227 In a subsequent
validation study that contrasted CAST-MR scores for a group of defendants without intellectual disabilities
and three groups of defendants who had intellectual disabilities (i.e., a nonreferred group, a referred group
judged clinically competent [MR-C], and a referred group judged clinically incompetent [MR-I]), mean
scores for the latter three groups were significantly different, in the appropriate directions, on all sections of
the CAST-MR.228 A subsequent study that compared CAST-MR scores of MR-C (n = 15) and MR-I (n =
20) groups also yielded significant differences for mean scores on sections I and III.229
These and other more recent studies provide support for the use of CAST-MR with defendants who have
intellectual disabilities.230 We note, however, that participants in the initial research examining on the
CAST-MR were persons from the community with intellectual disabilities; they were not defendants in
criminal proceedings.231 Thus, compared to individuals for whom the test was developed, the participants in
these studies may have lacked familiarity with the legal system. Furthermore, it is not clear how community
resident participants answered the questions in section III of the CAST-MR, which require respondents to
describe the events associated with their current case. Second, in the first validation study described, the
authors note that the MR-I group of defendants included a significant number of persons with co-occurring
mental disorders. The presence of mental illness in this group could have depressed IQ scores, as well as
contributed to some of the differences in outcomes observed between it and the other groups.

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 A more important observation is that some people with intellectual disabilities, even those whose
competence is not questioned or who are judged clinically “competent,” obtain CAST-MR scores significantly
lower than those of criminal defendants without intellectual disabilities.232 Thus, in contrast to the scoring on
other competence measures, a relatively high score on the CAST-MR does not necessarily imply that a person
with an intellectual disability has competence-related abilities comparable to those of defendants of average
intelligence. Related to this, Grisso notes that the multiple-choice format used to minimize the effects of
expressive deficits is “a bit further removed from the types of functioning that are actually needed during trial
participation [because] defendants frequently will not be offered alternative interpretations of what is
happening to them. In addition, they may be sometimes required to employ those same receptive and
expressive abilities that the format of the CAST-MR was designed to avoid.”233 Also important to keep in
mind are findings that persons with intellectual disabilities can suppress their performance on the CAST-MR
(just as persons evaluated with measures like the McCAT-CA and ECST-R can) and thereby exaggerate
their degree of disability.234
The CAST-MR is a viable instrument, but examiners who use it still must make judgments about the
demands of the case and the specific abilities needed when formulating clinical recommendations, as will
judges or juries who must reach ultimate conclusions about competence. Thus the CAST-MR might best be
used to supplement a structured inquiry into a defendant’s functioning, using the GCCT, FIT-R, or CAI.

(b) Juvenile Defendants in Adult Criminal Court

People charged with crime committed before age 18 are often tried in juvenile court but can sometimes be
transferred to adult court. Every state except Oklahoma requires that adolescents who appear in juvenile court
be competent to participate in the proceedings.235 Some states have developed substantive and procedural
provisions modeled on criminal court proceedings,236 and some explicitly recognize that cognitive or
developmental immaturity might be a basis for incompetence in juvenile court.237
When a juvenile is tried in adult (criminal) court (which, as Chapter 14 discusses, can occur in a number of
circumstances), immaturity may be less likely to be recognized as a basis for incompetence, particularly if the
relevant statutes focus solely on having a mental disorder as a predicate. While many states prohibit criminal
prosecution of juveniles found incompetent by the juvenile court judge,238 the recent increase in mechanisms
that bypass juvenile court review239 could thus lead to adult-court trials of juveniles who are incompetent due
to immaturity, but lack the mental disorder required for a finding of incompetence in adult court.
Several studies have investigated how the competence-related abilities of adolescents (both with and
without a history of contact with the legal system) compare to those abilities in adults.240 To date, the best
study on this issue was conducted by Grisso and his colleagues, who examined more than 1,400 males and
females ages 11–24 years. Half the participants were in jail or detention, and the other half were of similar
age, gender, ethnicity, and socioeconomic status but residing in the community.241 All participants were
administered several measures that assessed factors such as their (1) ability to understand and participate in
the legal process (using a revised version of the MacCAT-CA); (2) decisionmaking in other legal contexts
(e.g., waiving the right to silence and undergoing interrogation, accepting a plea agreement); (3) intelligence,
emotional functioning, and behavioral functioning; and (4) experience in the justice system.

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 Participants ages 11–13 years were more than three times as likely as young adults (ages 18–24 years) to be
classified as “seriously impaired” by the MacCAT-CA with respect to their understanding of and ability to
participate in the legal process, and participants ages 14–15 years were twice as likely as young adults to be so
classified. Compared to young adults, participants ages 15 years and younger were also less likely to recognize
the risks associated with different choices they might face if involved in the legal process, and less likely to
think about the long-term consequences of their choices (e.g., waiving vs. exercising the right to remain
silent). Juveniles of below-average intelligence (i.e., those whose IQ estimates were below 85) were more likely
to be classified as “significantly impaired” based on their MacCAT-CA performance than juveniles with
greater intellectual abilities. Over half of all 11- to 13-year-olds, and more than 40% of the 14- and 15-year-
olds with below-average IQs, were classified as “significantly impaired” based on their MacCAT-CA
performances. Age and intelligence were the only significant predictors of MacCAT-CA performance, which
did not vary as a function of participants’ gender, ethnicity, socioeconomic background, experience in the legal
system, or emotional and behavioral functioning. Note, however, that very few study participants were
classified as having serious mental disorders.
Also significant is that the investigators did not find significant differences between the MacCAT-CA
performances of 16- and 17-year-olds and the performances of young adults. In light of data showing that
juvenile transfers to adult court overwhelmingly involve youth in the 16–17 age range,242 Grisso and
colleagues’ study and those of other investigators243 should largely allay fears that large numbers of youth may
be required to proceed to adjudication in criminal court despite impaired competence due to immaturity.
Clinicians should be aware, however, that the studies suggest that adolescents younger than 16 years have a
higher likelihood of impaired competence, and that referrals for evaluation of waived/transferred age 15 years
and younger should be strongly considered.
One instrument that might be useful in evaluating competence of juveniles, whether in the juvenile or adult
setting, is the Juvenile Adjudicative Competence Interview (JACI). The JACI is a structured tool like the
FIT-R and other measures discussed above that are designed to ensure a comprehensive inquiry into
competence to proceed. But it focuses on developmental factors that may affect competence-related
abilities.244 The JACI provides standardized questions about 12 areas of inquiry related to the ability to
understand and participate in the legal process, as well as a set of problem-solving tasks involving hypothetical
legal situations to which the youth must respond and offer his or her underlying reasoning. The examinee’s
responses are not rated or scored, and no norms or cutoff scores are provided. Results of one study, in which
juvenile competence evaluations were conducted with (n = 55) and without (n = 55) the instrument, indicated
that the tool is a potentially valuable method for assessing juvenile competence.245

6.09. GUIDELINES FOR EVALUATION

(a) Social Context

Although standard legal analysis implies that competence or incompetence resides wholly within the
individual, it might more properly be viewed as a transactional construct that involves the attorney, the
defendant, and the legal context (e.g., the type or severity of the charges and the likelihood that the defendant
will go to trial). After all, the “assisting counsel” prong of the competence standard is directly concerned with

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the relationship between the attorney and his or her client, and the test also depends on the success of the
attorney’s efforts to educate the defendant about the nature of the proceedings. The cliché that “there are no
incompetent defendants, only incompetent attorneys” is mistaken. Yet most lawyers receive little if any formal
clinical training in talking with or counseling disturbed clients, and some attorneys may make referrals for
competence evaluations because of frustration or discomfort of working with clients who seem “strange” or
“difficult.”246
Thus, when limitations of a defendant’s adjudicative competence are not apparent, examiners should
approach the evaluation as a problem in consultation—that is, as a means of rendering assistance to the
defense attorney in preparing the client for the defense. Careful reporting of the evaluation data should give a
sense of the specific points about which the defendant needs further education or counseling [see, e.g., the
Keith Stiller report, § 19.02(a)]. When there seems to be a mismatch between attorney and defendant, the
clinician may be able to offer suggestions for ways of getting the relationship “unstuck.”

(b) Competence Evaluation Content

Although no single, standard protocol covers all evaluations of adjudicative competence, the following five
elements should be included, if possible, in assessments: (1) preevaluation preparation and consultation; (2)
defendant notification; (3) brief history; (4) mental status examination; and (5) evaluation of the defendant’s
understanding of, and reasoning about, the charges and case (which may be incorporated into some
assessment measures).247 Beyond these core components, additional considerations include (6) the potential
advantages of using an established competence assessment measure; (7) whether to use additional
psychological testing; and (8) issues related to amnesia and the defendant’s statements about the offense.

(1) Preevaluation Preparation and Consultation

At the outset of a competence evaluation, the examiner should obtain information about the behavior that
gave rise to the referral and the issues at stake. The need for this referral information is obvious; for instance,
to assess a defendant’s understanding of the charges and potential penalties, the examining clinician needs to
know what they are.
Court documents are one important source for this type of information. But often the most important
third-party data source for a competence evaluation is the defense attorney. With rare exceptions, the defense
attorney is in the best position to inform the examiner about the length, substance, and nature of previous
attorney–client contacts, and the basis for the referral. A defendant’s misunderstanding about charges and the
legal process after hours of counseling from the attorney should be interpreted differently than the same
misunderstanding after a five-minute meeting at a preliminary hearing should be. The attorney is obviously a
significant source of information about difficulties in communication between client and attorney.
Furthermore, defense counsel will be the primary, and perhaps only, source of information regarding specific
contextual issues that affect the anticipated defense [see § 6.02(b)].
We recommend that clinicians routinely try to obtain this type of information from attorneys representing
defendants referred for competence evaluations (and, conversely, that referring attorneys routinely provide it).

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A form such as that shown in Figure 6.1 may be helpful in this regard. The examiner should also attempt to
enlist the attorney’s assistance in accessing records of prior mental health evaluations and treatment that may
inform the present evaluation.

Defendant:__________________________ DOB: ____________

Attorney: __________________________

Describe the charges for which defendant is standing trial and the underlying facts:

Describe the potential penalties:

Describe the specific behavior of the defendant which leads you to believe that he/she may be incompetent to stand trial or was suffering
from significant mental abnormality at the time of the offense (e.g., detached and indifferent; depressed; hostile; chaotic behavior;
peculiar speech content; hallucinations; history).

Have you observed this behavior yourself? If not, who are the sources of these observations?

FIGURE 6.1. Referral form.

(2) Defendant Notification

At the outset of the clinical interview, the examiner should tell the defendant about the purpose and nature of
the evaluation, and should explain any associated limitations on confidentiality and/or privilege. As noted in §
4.05(d), this notice is ethically required even in contexts such as a court-ordered adjudicative competence
evaluation, in which the defendant does not have a legal right to decline to participate. Although the examiner
is not technically seeking to obtain informed consent in such evaluations, ethical considerations always require
the clinician to help the defendant understand the purpose and scope of the evaluation and to obtain the
defendant’s assent. In Chapter 4, Table 4.1 outlines a sample notification for use in adjudicative competence
evaluations, and § 4.05(e)(1) provides recommendations as to how examiners might best proceed with
defendants who withhold assent for the evaluation.

(3) Brief History

Taking a brief, focused history serves several functions. First, if taken early in the interview (perhaps
immediately following the notification/consent), it can reduce anxiety and help establish build rapport with
the defendant, who may find it more comfortable to discuss his or her past than the present charges. Second,
it can provide insights into the examinee’s current emotional, behavioral, and cognitive functioning, which

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relates directly to competence-relevant capacities such as ordering and expressing thoughts. Third, efforts to
take a history help the examiner see how well the defendant can form and sustain a working relationship,
which is an important indication of well the defendant might relate to his or her attorney. Fourth, the content
of the history—particularly with respect to mental health conditions, other medical problems, and past
treatment—may become important if the evaluation shows that the defendant has significant competence-
related impairments. Finally, any discrepancies between the examinee’s statements and other data sources can
inform judgments about the examinee’s current mental status and response style.
Our suggestion that the personal history part of the interview be brief may incur resistance from some
judges and others in the legal system. Perhaps because of the tradition of receiving reports based on inpatient
evaluations, many legal professionals have come to expect a “full psychological/psychiatric evaluation,”
including a comprehensive social history replete with psychological and/or medical testing. Illustrative are the
results of a study conducted in Virginia, in which 64% of a sample of 52 trial judges stated that family history
“is essential” in adjudicative competence evaluations.248 The fact remains that for most competence
evaluations, a detailed history is simply not relevant. Moreover, because a defendant at the competence
evaluation stage of criminal proceedings has not put his or her mental state or background at issue, eliciting
detailed information not germane to competence may be needlessly prejudicial.

(4) Mental Status Examination

Assessing current mental status is a key component of any competence evaluation. Examiners use various
methods to evaluate cognitive, emotional, and behavioral functioning, with the choice often depending on
their training, experience, and personal preferences. These methods can vary from open-ended, unstructured
questions (e.g., “Tell me how you’ve been feeling lately. . . . Have you had any troubling or unusual
thoughts?”) to highly structured inquiries such as those listed in § 3.03 (Table 3.3). Interviews may be
augmented by questions that evaluate specific cognitive capacities (e.g., brief digit span tests, serial sevens),
general knowledge (e.g., “Who is the President?”), and orientation (e.g., identifying the current date and place
of the evaluation). Mental health professionals also can use an array of tests for a more standardized or focused
assessment when needed. Information gathered through these various means augments observations of, and
inferences based on, the defendant’s behavior and comments during the interview.
Although the choice of methods and measures to assess current mental status is at the discretion of each
forensic examiner, we suggest that clinicians conduct a brief screening assessment that can be expanded later,
if needed, into a more detailed and focused assessment. We recommend this approach for two reasons. First,
as the research reviewed in § 6.06(a) indicates, the large majority of defendants referred for initial evaluation
will ultimately be adjudicated competent, and many of these examinees may display few if any deficits in
functional legal abilities. For such cases, a time-consuming, comprehensive, and expensive assessment of
current mental functioning is simply not needed to answer the referral question. Second, among defendants
who manifest clear impairments in competence-related abilities, the symptoms that “cause” the deficits may be
equally obvious (e.g., significant thought disorder or delusional content that affects the defendant’s
understanding of or ability to participate in the legal process), so that more in-depth and nuanced evaluations
provide little incremental information. However, more comprehensive investigations of mental status may be

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indicated when the nature or extent of psychological impairment and its impact on competence-related
abilities needs clarification.
The examiner should also consider interviewing third parties, such as family members or jail personnel,
who know about the defendant’s functioning in different contexts and at different times. This information can
facilitate a better understanding of the defendant’s current presentation; it can also inform judgments about
the defendant’s response style when concerns about fabrication, exaggeration, or disavowal of impairments
arise.

(5) Interviewing for Case-Specific Information

For forensic examiners who use one of the packaged measures that does not inquire into the specifics of the
defendant’s own legal situation (e.g., the CST or the MacCAT-CA), or for those who do not use any of these
measures, this inquiry should include at least two components. The first component, having to do with the
offense, will be an assessment of the defendant’s awareness of the charges, as well as his or her ability to
describe the specific allegations and their possible consequences. Questions here should be open-ended and
phrased in a way that does not assume the defendant’s involvement in the alleged offense. Thus questions
such as “What do the police say you did to get your current charges?”, “What are you accused of?”, or “What
can you tell me about your case?” are preferable to “Tell me about the armed robbery” or “Tell me about the
fight that led to your arrest.” Ideally, examiners will already know about the allegations, based on
documentation received with the referral and their oral or written communications with the attorney and/or
the court. This information may assist in guiding inquiries about the defendant’s knowledge or memory of
specific elements of the allegations and charges, or may provide the basis for confrontation if an examiner
thinks the examinee may be malingering or responding deceptively.
We also recommend that examiners ask defendants about what occurred at and around the time of the
alleged offense. A defendant’s responses to this questioning usually provides insight into his or her abilities to
(1) remember events of importance, (2) distinguish more important from less important information, (3) relay
important information to counsel, and (4) testify relevantly.
Some mental health professionals and commentators recommend that examiners make no such
inquiries,249 citing several legitimate concerns. First, although the examiner’s report may (and, we explain
below, should) leave out what the defendant said about the alleged offense, many jurisdictions allow testimony
about the defendant’s statements during a competence hearing and, if the defendant raises a mental state
defense, at trial as well [see § 4.02(a)].250 Second, even in jurisdictions that bar using a competence examiner’s
testimony as direct evidence to support a conviction, the testimony may be allowed as a “prior inconsistent
statement” to impeach a defendant who testifies at trial.251 Also, an examiner’s testimony concerning a
defendant’s statements about what led to the arrest could provide the prosecution with clues about potential
defense tactics at trial or investigative leads about evidence.252
Despite these potential problems, we agree with the following points made in the AAPL Practice
Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, which notes that in many
cases, avoiding asking for the defendant’s version is impracticable “because (for example), a court has ordered
examinations of competence and criminal responsibility, which psychiatrists usually perform during the same

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interview or set of interviews.” The AAPL Practice Guideline continues:

Except in those unusual circumstances in which the psychiatrist can determine quickly that a defendant is not competent, the psychiatrist
often has elicited or been told the defendant’s version of the events that led to his arrest. . . . Also, getting a defendant’s version of arrest-
related events as close as possible to the time those events occurred is the best way to learn what a defendant did and why. . . . For many
psychotic defendants—that is, those most likely to merit the insanity defense—obtaining their version of events before they receive
competence-restoring treatment can address the possibility that, once their rationality improves, they will recast their actions and motives
into behavior and reasons that seem more plausible, but that are also less exculpatory.
If a psychiatrist believes that asking the defendant about his or her version of events is important, the psychiatrist can deal with concerns
about having to testify about the defendant’s statements by preparing a response that will alert the court to the matters that are at stake. For
example, if the prosecution asks the psychiatrist to testify at a competence hearing about what the defendant said concerning the alleged
offense, the psychiatrist may wish to respond, “Before I answer that question, I must ask whether the defense attorney or the court objects,
because if I do answer, I may reveal information that will incriminate the defendant or that might compromise his defense strategy.”253

If the examiner does ask about what led to the arrest, we recommend that the report not include specifics
of what the defendant reported, but only a summary statement about the quality of the response. For example,
the report might say, “Mr. Doe offered an account of his behavior and the behavior of relevant others (e.g.,
the arresting officers, the alleged victim) around the time of the alleged offense that was temporally organized
and easy to understand and follow. Moreover, Mr. Doe’s responses to questions about these matters were
relevant and informative.”
A second component of the interview should focus on the defendant’s competence-related abilities in
connection with the legal process, including the ability to relate to the attorney. Information about the
defendant’s understanding of the legal situation can usually be obtained through nonconfrontational
conversational questions that inquire about the defendant’s understanding of the purpose of a trial, the roles of
the various participants at trial, the defendant’s rights, the trial process itself (e.g., the nature of examination
and cross-examination of witnesses), advantages and disadvantages of pleading guilty, and the operation of the
plea agreement process.
Because the overwhelming majority of defendants ultimately enter some kind of guilty plea [an issue
discussed in more detail in § 7.04], the examiner should also evaluate how the defendant understands and
thinks about this matter. Again, however, the examiner should include only a summary of findings when
writing the report, so as not to compromise a defendant’s legal options. For example, if Mr. Doe offers a
rational appraisal of the strength of the state’s case and indicates that he would be willing to enter a guilty plea
if a sentence of five years or lessis offered, the examiner might describe this in the report by saying, “Mr. Doe’s
statements about the strength of the state’s case against him was coherent and sounded rational, and his
logical comments about a possible legal strategy were anchored in this appraisal.”
The clinician should also inquire about the defendant’s perceptions and expectations of the attorney. Here
it is useful to have the defendant describe previous interactions with the attorney, including both their
quantity and quality (which can be compared with the attorney’s referral information).
With respect to both the offense and legal process components, and regardless of whether a packaged
format or a more informal interview process is used, clinicians should avoid following a rigid, test-like series of
questions. A series of rapid-fire questions (e.g., “What are you charged with?”, “What kind of penalties can
you get?”, “What does the defense attorney do?”) can turn the evaluation into one that is simply knowledge-
focused and neglects the defendant’s decisionmaking abilities. Moreover, poorly educated defendants

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sometimes perceive the list of factual questions about the legal system as a “schoolmarmish” test (as in some
sense it is), and they are accordingly reluctant to answer fully, lest their ignorance be uncovered. Also, such
defendants may be unable to give dictionary definitions of terms, despite having a basic understanding of the
underlying concepts.
Various alternative approaches are feasible. For example, defendants who cannot describe in the abstract
what a prosecutor does may nonetheless reveal a good understanding of the adversary system if the courtroom
situation is discussed in terms of their own cases. Similarly, conversations about past experiences in the
courtroom (e.g., “Tell me about who was there and what they did/were supposed to do”) may reveal a more
sophisticated understanding of the legal process than abstract questioning would. Finally, for defendants who
are reluctant to discuss or disclose information about their specific situations, or who believe that
acknowledging an understanding of the charges constitutes an admission, hypothetical inquiries of the type
used in the MacCAT-CA (e.g., “All right; suppose I were tried for murder. What would happen to me?”)
may prove useful, as they put emotional distance between the defendant’s case and the specific questions at
hand.

(6) Administration of a Competence Assessment Tool

Assessing the defendant’s functional legal abilities vis-à-vis the Dusky criteria is the focal point of the
adjudicative competence evaluation. In § 6.07, we reviewed a variety of instruments that examiners might use
to screen or assess these abilities comprehensively. Examiners’ choices about whether to use a formally tested
tool—and if so, which measure to employ—vary, depending on the examiners’ training, experience, and
individual preferences. The information provided above regarding the features and limitations of the various
measures should help guide an examiner’s choices.254

(7) Testing

As noted above, the routine administration of traditional conventional psychological or medical tests is
unlikely to be a cost-efficient means of gathering information in most competence cases. In a narrow range of
cases, however, testing may be useful. For instance, if symptom exaggeration or fabrication is suspected, the
examiner may want to administer one or more of the psychological tests of response style discussed in § 3.06
to gather additional information. In addition, when interview data suggest that the examinee is incompetent
or marginally competent, cognitive testing may be useful for one of the following purposes: (1) to corroborate
the degree of intellectual disability or other generalized impairment, or (2) to assess the examinee’s ability to
consider alternatives and process information in a structured situation. However, even these goals may often
be met more efficiently (and perhaps more validly) by examining agency records and through discussions
about the defendant’s typical behavior with relatives, health care providers, jailers, and others who know or
have interacted with the defendant.

(8) Amnesia and Statements about the Offense

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One of the more nettlesome problems in evaluating competence is the weight to be accorded a defendant’s
report of amnesia for what occurred at and around the time of the alleged offense. As noted in § 6.02(c),
amnesia per se is not a bar to competence. Indeed, general memory problems are more likely to be probative
on the competence issue than is amnesia for the time of the alleged offense, because the former may interfere
with the defendant’s ability to communicate with his or her attorney about important case matters or
participate in a trial, whereas the latter can often be rectified through provision of extrinsic information (e.g.,
witness accounts or video recordings of the alleged offense).
Nonetheless, because impaired memory for what occurred at and around the time of the alleged offense can
be relevant to a competence determination, the examiner should first try to determine whether the amnesia
claim is genuine—which is often easier said than done. Sometimes something as simple as repeatedly circling
back to the time of the alleged offense can “jog” a defendant’s memory; in rare cases, neurological testing may
be indicated [for a discussion of how to assess claims of amnesia, see § 3.05]. If, as a result of such efforts, the
clinician believes that the amnesia is fabricated but the defendant insists on having no recollection of what
happened, the clinician can still comment about the defendant’s capacity to relate the events surrounding the
crime. Even if the amnesia is real, the “usual” competence evaluation should proceed, because the quality of
the communication between counsel and client, as well as the defendant’s understanding of the criminal
process, may well be unimpeded. In addition, the defendant may be able to participate in the defense by
evaluating the prosecution’s evidence depicting his or her conduct at the time of the offense.
Whatever findings are made about the amnesia issue should be reported to the court. It is particularly
important to report information about the probable source of the amnesia and whether it is remediable, as
these determinations will be relevant to the defendant’s restorability if the defendant is found to be
incompetent. For reasons already discussed, the clinician should be alert to Fifth Amendment issues in doing
so [see § 4.02(a)]. Of course, statements made by the defendant as to what others (e.g., the police) say he or
she did may be included, because they are not self-incriminating and may well reflect the defendant’s
understanding of the charges, allegations, and quality of the state’s evidence.

(c) Treatment and Restorability

As discussed in § 6.04(a), Jackson v. Indiana places limits on the state’s ability to confine those adjudicated
incompetent. Thus, although determining treatment needs is not the primary purpose of a competence
evaluation, the examiner must consider restorability if the defendant appears to be incompetent or marginally
competent.255 Here the clinician should attempt to address the following issues, based on diagnostic
impressions and the available history of mental health treatment: (1) the probability of the defendant’s
achieving a higher level of competence under various treatment regimens, (2) whether such treatment can be
administered on an outpatient basis, and (3) the length of time that would constitute a reasonable treatment
trial under the proposed regimen(s). In addition, in some states the evaluator must address whether the
defendant meets the criteria for inpatient commitment (i.e., some variant of dangerousness to self or
others).256
The few studies that describe prognostications about restoration indicate that clinicians’ judgments on
these issues are not particularly accurate.257 However, forensic evaluators should not be unduly discouraged by

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this literature. At the front end of the process, examiners’ reports and testimony need to provide only
estimates of the likelihood of restorability and the time needed to achieve it.
Furthermore, examiners can rely on considerable research on the types of individuals most likely to be
restorable. First, a number of studies from the past several years provide empirical grounding for judgments
about this matter: Defendants who are older, have chronic, treatment-refractory mental illnesses, and/or have
intellectual disabilities are less likely to achieve restoration; defendants with criminal histories, personality
disorders, and nonpsychotic disorders (e.g., depression or bipolar disorder) are more likely to be restored.258
As Table 6.3 indicates, psychotic and mood disorders are most typically observed in defendants who have
been adjudicated incompetent, and these tend to be treatable with medication. Beyond the group-based
empirical information summarized in the preceding paragraph, the information most relevant to probability of
restoration is the defendant’s own treatment history—for example, whether standard treatments for the
defendant’s illness have worked previously, and how quickly the defendant responded when provided
appropriate treatment. For defendants without a relevant treatment history, knowledge of the efficacy of
various treatments available for the mental disorder underlying the defendant’s impaired competence will of
course still be relevant. Finally, competence evaluators may wish to examine reports about clinical
interventions that have been found efficacious in competence restoration.259
In addition to addressing specific treatment needs, the evaluator should be aware of typical times needed
for competence restoration, useful examples of which appear in Table 6.6. The studies are relatively consistent
in finding that the large majority of defendants referred for treatment are recommended as “restored” within
six months, and often earlier.260 Such findings can provide some empirical bases for clinicians’ ballpark
estimates of time to competence restoration.

TABLE 6.6. Competence Restoration: Length-of-Stay Data

State Sample Findings

Floridaa 2,834 restored defendants in calendar years 2002–2004 Cumulative % restored within
30 days: 6.1%
90 days: 40.9%
180 days: 78.5%
270 days: 87.3%

Michiganb 342 restored defendants in fiscal years 2002–2005 Average length of stay: 134.41 days
Median length of stay: 100.23 days

a
Data provided by the Forensic Services Division, Florida Department of Children and Families (personal communication, April
2005). Dates shown are from admission to the date a clinical report was sent to the court recommending that competence has
been restored. Patients typically remain in the hospital for a longer period awaiting transport to the county jail.
b
Data provided by the Forensic Services Division, Center for Forensic Psychiatry, Ann Arbor, MI (personal communication, May
2005). Dates show are from admission to actual discharge; average time in the hospital awaiting transport to county jail is
approximately 17 days after the clinical report is sent to the court.

However, substantially lower restoration rates, ranging from 24 to 33%, have been reported in studies of
incompetent defendants with intellectual disabilities.261 Thus it bears emphasizing that under Jackson,
attempts at restoration in the absence of a substantial probability that competence will be restored constitute
an unconstitutional deprivation of liberty. In any case in which it is apparent that the defendant’s clinical

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condition precludes restoration of competence, the examiner should make this clear. This, in turn, should
signal the attorneys and court to consider alternative dispositions of the case.
Finally, a word is necessary about the content of reports regarding competence restoration. Above, we
cautioned forensic examiners about the limited usefulness of social history data in conducting competence
evaluations. Arguably, more comprehensive social history information may be needed in the competence
restoration context; for example, family history may help to flesh out the nature and etiology of competence-
related problems, and a history of aggressive or violent behavior may be relevant to treating professionals’
assessments regarding an incompetent defendant’s risk of harm to others. However, the expanded license to
collect such information does not translate into a need to report such information to the court. Indeed,
hospital administrators and clinicians responsible for writing reports that accompany defendants when they
return to court should be careful about what information is included. Unlike initial assessments of
competence, which in many jurisdictions will have been conducted in jails by mental health professionals
functioning as independent consultants to an attorney or a court, social history information gathered in
forensic hospitals—particularly that of a medical nature (e.g., prior diagnosis and treatment of the defendant
or family members, HIV-related information)—may fall under confidentiality statutes that explicitly limit the
purposes for which, and circumstances in which, such information may be disclosed [see generally § 4.04].
This set of issues played out in the case of Hirschfield v. Stone,262 in which the court found for plaintiffs in
a class action suit arguing that such personal information should be excluded from competence restoration
reports. In its opinion, the court stated:

The fact that a criminal defendant is HIV positive and bisexual, was physically abused 14 years earlier, takes HIV related medication and
suffers from hepatitis and diabetes, or has siblings who served time in prison, is not essential information which a court must have before
determining that defendant has sufficient ability to consult with his lawyers and to understand the proceedings against him.263

Thus, when writing a report describing an incompetent defendant’s hospital course, the clinician should
include solely those data that are relevant to the defendant’s current functioning and adjustment as these relate
to the capacity to understand and participate in the legal process.

6.10. CONCLUSION

In the 30 years since the first edition of this book was written, comparatively little has changed in terms of the
jurisprudence of adjudicative competence. The Dusky standard still prevails in all United States jurisdictions,
although Bonnie’s theoretical writings have clarified the legal landscape. Jackson’s amorphous standard still
purportedly governs the circumstances under which governments may confine defendants adjudicated
incompetent, and despite the Supreme Court’s decision in Sell, in most cases medication may still be used over
the defendants’ objections to restore competence. Yet during this same time span, significant changes have
taken place in where and how professionals assess adjudicative competence. States have increasingly adopted
procedures for outpatient evaluations and treatment, thus reducing the costs and unnecessary restriction of
defendants’ rights that accompanied the widespread practice of inpatient competence assessments. Many new
and innovative evaluation tools (e.g., the FIT-R, MacCAT-CA, and ECST-R) have become available. In our
view, these are beneficial changes that should continue.

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 Despite the consensus on many legal and clinical issues regarding competence to proceed, attorneys and
forensic clinicians can still be helpful in educating the community (including legislators) about the system of
competence evaluations and problems associated with it, particularly in jurisdictions that persist in committing
defendants to maximum security hospitals for such evaluations. Similarly, if attorneys and clinicians now only
occasionally confuse incompetence and insanity,264 the error is much more common in the general public.
Whether directly through public lectures, or indirectly through education of community leaders and the news
media, attorneys and forensic clinicians can perform a useful service in teaching the distinctions between these
concepts and the legal underpinnings of the competence question.

BIBLIOGRAPHY

Richard Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation, 10 BEHAVIORAL SCIENCES & THE LAW 291 (1992).
Samuel Jan Brakel, Competency to Stand Trial: Rationalism, “Contextualism,” and Other Modest Theories, 21 BEHAVIORAL SCIENCES & THE

LAW 285 (2003).

J. Richard Ciccone, Competence to Stand Trial: Efforts to Clarify the Concept and Improve Clinical Evaluations of Criminal Defendants, 12
CURRENT OPINION IN PSYCHIATRY 547 (1999).
Melissa L. Cox & Patricia A. Zapf, An Investigation of Discrepancies between Mental Health Professionals and the Courts in Decisions about
Competency, 28 LAW & PSYCHOLOGY REVIEW 109 (2004).
Drope v. Missouri, 420 U.S. 162 (1975).
Dusky v. United States, 362 U.S. 402 (1960).
Michael H. Fogel et al., Ten Year Research Update (2001–2010): Evaluations for Competence to Stand Trial (Adjudicative Competence), 31
BEHAVIORAL SCIENCES & THE LAW 165 (2013).
THOMAS GRISSO, COMPETENCE TO STAND TRIAL EVALUATIONS: JUST THE BASICS (2014).
THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (2d ed. 2003).
Jackson v. Indiana, 406 U.S. 715 (1972).
IVAN KRUH & THOMAS GRISSO, EVALUATION OF JUVENILES’ COMPETENCE TO STAND TRIAL (2008).
LABORATORY OF COMMUNITY PSYCHIATRY, COMPETENCY TO STAND TRIAL AND MENTAL ILLNESS (1974).
Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 JOURNAL OF THE

AMERICAN ACADEMY OF PSYCHIATRY & THE LAW S3 (2007).

Randy K. Otto, Competency to Stand Trial, 2 APPLIED PSYCHOLOGY IN CRIMINAL JUSTICE 82 (2006).
Gianni Pirelli, William H. Gottdiener & Patricia A. Zapf, A Meta-Analytic Review of Competency to Stand Trial Research, 17 PSYCHOLOGY,
PUBLIC POLICY, & LAW 1 (2011).
NORMAN G. POYTHRESS ET AL., ADJUDICATIVE COMPETENCE: THE MACARTHUR STUDIES (2002).
RONALD ROESCH, PATRICIA A. ZAPF & DEREK EAVES, FITNESS INTERVIEW TEST—REVISED (2006).
Riggins v. Nevada, 504 U.S. 127 (1992).
Sell v. United States, 539 U.S. 166 (2003).
Kathleen Powers Stafford & Martin Sellbom, Assessment of Competence to Stand Trial, in 11 HANDBOOK OF PSYCHOLOGY: FORENSIC
PSYCHOLOGY 412 (Randy K. Otto ed., 2012).
Patricia A. Zapf, Ronald Roesch & Gianni Pirelli, Assessing Competency to Stand Trial, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 281
(Irving B. Weiner & Randy K. Otto eds., 4th ed. 2014).
PATRICIA A. ZAPF & RONALD ROESCH, EVALUATION OF COMPETENCE TO STAND TRIAL (2008).

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CHAPTER 7

Other Competencies in the Criminal Process

7.01. INTRODUCTION

Chapter 6 discussed competence to proceed— adjudicative competence—in criminal cases. This chapter
examines the large number of criminal justice situations that require decisional competence—the competence
to make a particular decision. The state has traditionally been accorded wide-ranging power to make decisions
for those unable to care for themselves under what is known as its parens patriae (literally, “state as parent”)
authority.1 At the same time, since the mid-19th century,2 much of Western society has subscribed to the
principle that human dignity demands respect for individual autonomy unless compelling reasons to infringe
upon that autonomy exist. On this assumption, the state should not invoke its parens patriae power as
justification for intervening in a person’s life unless, at a minimum, the individual lacks capacity to make the
specific decision or to perform the specific act at issue.3 Thus decisional competence is an important, albeit
often neglected, forensic issue.
This chapter examines the following decisional competence issues, in roughly the order they might arise
during criminal litigation: competence to consent to a search and seizure; competence to exercise and waive
the right to avoid self-incrimination; competence to enter a plea; competence to waive the right to an attorney
and represent oneself; and competence to refuse an insanity defense. We also cover two types of competence
that differ conceptually from both adjudicative competence and decisional competence: competence to testify
(and the associated issue of assessing witness credibility) and competence to be executed. Other competence
issues that might arise in civil contexts are discussed primarily in Chapter 11.

CASE STUDY 7.1

Following are the facts of Godinez v. Moran,4 a United States Supreme Court opinion discussed in §§ 7.04 and 7.05.
On August 2, in the early hours of the morning, Tom Moran entered the Red Pearl Saloon in Carson City, Nevada, and shot the
bartender and a patron four times each with an automatic pistol. He then walked behind the bar and removed the drawer to the cash
register. Nine days later, Moran arrived at the apartment of his former wife and opened fire on her; five of his seven shots hit their target.
Moran then shot himself in the abdomen and attempted, without success, to slit his wrists. Of the four victims of Moran’s gunshots, only
Moran himself survived. On August 13, Moran summoned police to his hospital bed and confessed to the killings.
After Moran was appointed counsel and had pled not guilty to three counts of first-degree murder, the trial court ordered that he be
examined by two psychiatrists, who both concluded that he was competent to stand trial. One of the psychiatrists stated that there was “not
the slightest doubt” that Moran was “in full control of his faculties” and had the “ability to aid counsel, assist in his own defense, recall
evidence and . . . give testimony if called upon to do so.” The other psychiatrist believed that Moran was “knowledgeable of the charges
being made against him”; that he had the ability to “assist his attorney, in his own defense, if he so desire[d]”; and that he was “fully
cognizant of the penalties if convicted.” Although both psychiatrists also said that Moran was very depressed, with one noting that his
“considerable remorse and guilt” might incline him “to exert less effort towards his own defense,” the trial court agreed with their ultimate
conclusions and found Moran competent to proceed.
The prosecution announced its intention to seek the death penalty. Two and a half months after the psychiatric evaluations, Moran

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again appeared before the trial court and stated that he wished to discharge his attorneys and change his pleas to guilty. When asked to
explain the change, Moran responded that he wished to represent himself because he opposed all efforts to mount a defense. His purpose,
specifically, was to prevent the presentation of any mitigating evidence on his behalf at the sentencing phase of the proceeding. The trial
judge inquired whether Moran was “presently under the influence of any drug or alcohol.” Moran replied, “Just what they give me in, you
know, medications.” The trial judge did not question Moran further regarding the type, dosage, or effect of the “medications” to which he
referred. In fact, Moran was simultaneously receiving four prescription drugs—Phenobarbital, Dilantin, Inderal, and Vistaril—that could
cause light-headedness, drowsiness, depression, confusion, or memory impairment.
The court then advised Moran that he had a right both to counsel and to represent himself, warned him of the “dangers and
disadvantages” of self-representation, inquired into his understanding and his awareness of his rights, and asked why he had chosen to
represent himself. In a string of affirmative responses, Moran stated that he knew the import of waiving his constitutional rights, that he
understood the charges against him, and that he was guilty of those charges. But when the trial judge asked Moran whether he killed his ex-
wife “deliberately, with premeditation and malice aforethought,” Moran unexpectedly responded, “No. I didn’t do it—I mean, I wasn’t
looking to kill her, but she ended up dead.”
Rather than probing further, the trial judge repeated the question, inquiring again whether Moran had acted deliberately. Moran
replied, “I don’t know. I mean, I don’t know what you mean by ‘deliberately.’ I mean, I pulled the trigger on purpose, but I didn’t plan on
doing it; you know what I mean?”
The trial judge stated, “Well, I’ve previously explained to you what is meant by ‘deliberation’ and ‘premeditation.’ ‘Deliberate’ means that
you arrived at or determined as a result of careful thought and weighing the consideration for and against the proposed action. Did you do
that?”
Moran responded, “Yes.”
Moran subsequently described his mental state at the time of these proceedings as follows: “I guess I really didn’t care about anything. . .
. I wasn’t very concerned about anything that was going on . . . as far as the proceedings and everything were going.”

Questions: In this case, both examiners opined that Moran was competent to stand trial and the court agreed. Of what relevance is this
finding in evaluating his competence to plead guilty, his competence to waive counsel, or his competence to represent himself? What else
would you want to know?
Now assume that the court finds that Moran is not competent to waive counsel, and that once counsel is appointed, the attorney makes
plans to assert an insanity defense over Moran’s objection. As a mental health professional, how would you evaluate Moran’s competence to
waive an insanity plea? If he is not competent to waive counsel, is he automatically incompetent to waive an insanity defense?
In the actual case, Moran was found competent to plead guilty and to waive his right to an attorney, and he represented himself. He pled
guilty and presented no evidence at his sentencing hearing, which took place shortly after the hearing described above. He received a death
sentence for the saloon murders and a life sentence for the murder of his wife. As a lawyer, what arguments could you make for or against
the proposition that at the time of the sentencing hearing, he was incompetent to be sentenced? To be executed?
Finally, note that while in the hospital, Moran gave a confession to the police in the absence of counsel (but apparently after receiving
Miranda warnings). What can you say about his competence to confess at that time? What else would you like to know?

7.02. COMPETENCE TO CONSENT TO A SEARCH OR SEIZURE

The government obtains much of the evidence used in criminal cases through searches of people’s houses,
effects, and papers, and through seizures and searches of persons. The Fourth Amendment to the United
States Constitution prohibits “unreasonable” searches and seizures, and requires that warrants authorizing a
search or seizure be based on “probable cause.”5 If a court determines at a pretrial “suppression hearing” [see §
2.04(a)(1)] that a police action violates these strictures, the “fruits” of the unlawful search are generally
excluded from the prosecution’s case.6
The Fourth Amendment issue most likely to require clinical evaluation is whether a person who consented
to a search or seizure was competent to do so. According to the United States Supreme Court, a valid,
competent consent to a search or seizure is one way the police action can be rendered reasonable. Specifically,
a search is reasonable, even if the police do not have cause to conduct it, when a person “voluntarily” consents
to the search.7 Similarly, a police detention of a person, even if lacking in basis, is not considered a Fourth

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Amendment seizure when the person is found to have “voluntarily” consented to the detention.8
The Supreme Court has also held that for Fourth Amendment purposes, a person’s consent can be
“voluntary” even if the person does not know of the right to refuse consent.9 Thus, in contrast to an
assessment of competence to confess—which ostensibly involves a court’s determining whether the suspect
waived the right to remain silent knowingly as well as voluntarily [see § 7.03]—evaluation of a person’s
competence to consent to a search is focused almost entirely on the extent to which police coerced the
consenter. A person’s knowledge or understanding of the right to refuse is a secondary issue at best.
Some data exist on the circumstances in which such consent is most likely to be voluntary in the sense of
being uncoerced. For instance, in simulated search scenarios, Kagehiro found that search requests phrased in
an interrogatory fashion (e.g., “Would you mind if I came in and looked around?”) resulted in higher
perceived choice than did declarative requests (e.g., “I would appreciate it if I could come in and look
around”). However, the former type of request resulted in a greater likelihood that entry would be granted and
that questions would not be asked about the police objective. This research suggests that people subjected to a
police request for consent may be more likely to assert their rights if the request is framed declaratively rather
than interrogatively. The study also found that the more detail the police provided in their request about their
objective, the less likely it was that the person would feel free to ask the police to leave, once consent was
given.10
A second study—which, unlike Kagehiro’s, involved people actually confronted by the police—found that
fear plays a major role in consent searches. Based on interviews with 54 people identified as consentors in
police reports, Lichtenberg concluded:

Consent was not contingent upon the number of persons present; the number of demands [unrelated to consent] the police officer forced the
subject to comply with prior to the request for consent; the number of questions asked from the inception of the stop; whether the subjects
felt they had to respond to the request for consent immediately; whether the subject was in a rush; the subject’s education or employment.
Also contrary to prediction, subjects were able to articulate why they gave consent. . . . People consented to search for one primary reason:
fear of reprisal if they refused. Most were unaware of their legal right to refuse. Those subjects who understood they could refuse expressed
virtually no faith in the law being followed by the police.11

These findings are particularly interesting, since they involved consent searches in Ohio when that jurisdiction
required police to tell individuals, before the request for consent, that they were free to leave (although those
stopped were not necessarily told that they had a right to refuse consent).
Based on her survey of research and compliance and related issues, Nadler came to similar conclusions:

[The most] plausible interpretation of these encounters—one that is based on established empirical findings—is that in many consent search
situations, citizens do not feel free to decline the search request, much less to terminate the encounter at the outset. Instead, the citizen
develops a clear understanding from the context of the encounter that any attempt to decline the request or terminate the encounter would
be construed by the officer as refusal to cooperate, and such refusal will be met with negative consequences for the citizen (even though it is
typically unclear at the time precisely what those negative consequences would be). In addition, citizens anticipate that part of the set of
negative consequences would be a decidedly negative affective reaction on the part of the officer. The officer’s request for consent to search
therefore places the citizen on the horns of a dilemma: either accede to a request that you would prefer to refuse, or refuse the request and
incur the (unknown) consequences of being “uncooperative.”12

This research may assist social scientists, lawyers, and courts in assessing the voluntariness of consent to a
search. But the most relevant case law and research about this subject comes from the confession context,
where the difficult issues concerning the interaction of police behavior and the individual’s vulnerabilities are

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virtually identical. It is to this subject that we now turn.

7.03. COMPETENCE TO EXERCISE THE RIGHT TO REMAIN SILENT

Like competence to consent to a search, whether a defendant was competent to confess at the time of
interrogation is an issue likely to be raised prior to trial, at a suppression hearing. Typically the defense will
argue that at the time of the self-incriminating statement, the defendant was incompetent to waive his or her
rights under the Fifth or Sixth Amendments or the due process clause, and that the statement should
therefore be excluded. In such a situation, a mental health professional may be asked to evaluate the defendant
to provide input relevant to the court’s determination about competence. In performing such evaluations,
some understanding of the law of confessions is necessary.

(a) The Law of Confessions

The law of confessions is fraught with competing considerations. On the one hand, criminal prosecution often
depends on obtaining confessions from guilty defendants. On the other hand, even reliable confessions are
unfairly obtained if they resulted from interrogation methods calculated to break the suspect’s “will”;
moreover, some police tactics (e.g., egregious lying, preventing access to an attorney) might be considered
“unfair” regardless of their impact on individuals. As a result, the courts have exhibited an ambivalence about
the desirability of effective interrogation ploys. A brief review of the evolution of standards for assessing the
admissibility of confessions helps illuminate the complexity involved in clinical evaluation of a defendant’s
competence to confess.13
The Supreme Court’s first significant case imposing constitutional limits on police interrogations was
Brown v. Mississippi,14 decided in 1936. In Brown, the Court vacated the convictions of three African
American defendants whose signatures on written confessions to murder had been extorted through physical
torture, hanging, and severe beating. The constitutional basis of this decision was the Fourteenth
Amendment’s admonition that government not deprive its citizens of liberty without “due process of law.” In
Brown and nearly 40 Court cases thereafter,15 the validity of the confession depended on whether the totality
of circumstances combined to deprive the defendants of their will to resist the police.16 For example, the
Court ruled inadmissible confessions that were obtained from a suspect who was questioned continuously for
36 hours without rest or sleep;17 a man who was told that he could not phone his wife or anyone else unless he
gave a statement;18 a woman who was informed that public assistance for her children would be terminated
and her children taken away from her if she failed to “cooperate”;19 and a man who was hospitalized for a
gunshot wound, suffering from extreme pain, and under the influence of morphine.20
Dissatisfied with the fact-specific nature of this due process “voluntariness” analysis—which usually
depended on findings of state courts that relied on police versions of events—the Court cast about for an
alternative approach. In 1964, the Court shifted its focus to whether the Sixth Amendment right to counsel
was violated by failure to provide counsel during the interrogation of persons who have been formally
charged.21 Two years later, the Court decided Miranda v. Arizona,22 which relied on the Fifth Amendment’s
“privilege against self-incrimination” as the ground for excluding confessions. Although the due process and

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Sixth Amendment approaches still apply in certain circumstances,23 the Fifth Amendment is now the
principal constitutional basis for regulating police interrogation.
Besides its doctrinal shift, Miranda is important for the adoption of “per se rules” governing confessions.
Unless suspects who undergo custodial interrogation are given the famous warnings mandated by Miranda,
any statements they make are usually inadmissible.24 If defendants are instructed about their rights (i.e.,
informed that they have a right to remain silent, that what they say can be used against them, and that they
have a right to an attorney—state-paid if necessary—before and during the interrogation), subsequent
statements are still not admissible unless the defendants knowingly, intelligently, and voluntarily waived
them.25 Moreover, interrogation must cease if a defendant says that he or she does not want to talk, or invokes
the right to counsel “in any manner and at any stage in the process.”26 These per se rules were designed to give
some protection to suspects who faced sophisticated psychological ploys of police interrogators,27 without the
necessity of discerning the facts of an essentially “secret inquisition”28 or engaging in the case-by-case analysis
required under the law of voluntariness.29
Yet the law of voluntariness remains a key element in confessions cases, and Miranda itself is partly
responsible. As noted above, Miranda held that once the warnings are provided, any subsequent statements
will be inadmissible unless they were uttered “knowingly, intelligently, and voluntarily.” Because police today
routinely give the warnings, admissibility analysis in most cases is therefore conceptually similar to, if not
indistinct from, the pre- Miranda totality-of-the-circumstances inquiry.30 Furthermore, although the
Supreme Court has refused to overrule Miranda altogether,31 it has made clear that voluntary statements not
preceded by warnings are still admissible under certain circumstances. For example, unwarned statements are
admissible when they are obtained during booking, when warnings might inhibit disclosure of information
needed to prevent danger to the public, and when the prosecution uses them to impeach a testifying
defendant, as long as the statements were voluntarily made in the totality of the circumstances.32 Similarly,
Miranda warnings are not necessary when the suspect is not in “custody.” Thus the Miranda rule does not
apply to interviews in the home,33 questioning after stops for a traffic arrest,34 or even some types of
questioning at the police station when these do not represent the functional equivalent of arrest.35 The sole
test in these situations is whether the confession is “voluntary.”
In interpreting the scope of this rejuvenated voluntariness test, the Court has focused on whether the police
action involved “actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise
his free will.”36 Although Miranda prohibited police “trickery,”37 later Court decisions have indicated that as
long as the person subjected to interrogation appears to have understood the right to remain silent and the
right to counsel, subsequent waiver of those rights will usually be “knowing and intelligent”; other types of
misunderstandings or misimpressions are not relevant to the admissibility issue. Thus the Court has admitted
confessions given by suspects (1) who thought they were making their admissions to prison inmates rather
than police undercover agents;38 (2) who believed that only written statements were admissible, and thus
willingly gave oral statements;39 (3) who were led to believe that they would be questioned about one crime,
but were in fact questioned about another;40 and (4) who were not told that their attorneys were trying to
reach them at the time of the interrogation.41 In each case, the Court justified its holding on the ground that
although the police action may have been fraudulent, it did not result in the “compulsion” banned by the Fifth
Amendment or the “coercion” prohibited by the due process clause.

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 As a result, confessions analysis has centered on the “voluntariness” component of the waiver requirement
and has brought to the fore the complicated issue of coercion. Although the offensiveness of physical abuse as
an interrogation tactic is widely acknowledged,42 police conduct that merely exerts “a tug on the suspect to
confess” is not as likely to attract the same moral consensus.43 Courts’ decisions reflect this ambivalence.
Miranda castigated police attempts to “persuade” and “cajole” suspects into talking, but later cases have been
less fastidious. For instance, in Rhode Island v. Innis,44 the Supreme Court found admissible the confession of
a defendant who was persuaded to reveal the location of the murder weapon by a police conversation to the
effect that if the weapon were not found, innocent children might discover it. Similarly, lower courts have
found nothing unconstitutional about police saying that they have physical evidence they do not possess, or
that a confession will make the suspect “look better” at trial.45
When a suspect is demonstrably impaired, however, courts have been more cautious about finding
confessions “voluntary.” For instance, several of the Supreme Court’s pre- Miranda due process cases declared
that the suspect’s intellectual disability or mental illness is an important factor to consider in gauging
voluntariness.46 At the same time, the courts have made clear that mental impairment, even if significant,
does not automatically render a confession incompetent.47 If the person understood his or her rights when
questioned, evidence of impairment is unlikely to convince the court to suppress the evidence without other
significant evidence of suggestibility or some abnormal vulnerability to police importuning.48
Furthermore, the Supreme Court has held that unless the police take advantage of a suspect’s mental
disability, due process and Miranda are not implicated because no governmental coercion has occurred. In
Colorado v. Connelly,49 the defendant flew from Boston to Denver to confess to police about a murder he had
committed several months earlier. Despite Miranda warnings and repeated reminders that he did not need to
talk, Connelly insisted on giving police self-incriminating details of the murder. The police claimed to observe
no signs of mental illness at that time. However, in trying to exclude Connelly’s admissions at a subsequent
hearing, the defense presented significant evidence of impairment, including the facts that Connelly had
undergone several psychiatric hospitalizations and had not taken medication for the previous six months. A
psychiatrist further testified that although Connelly had understood his right to remain silent at the time he
confessed, he had been “compelled” to talk by so-called “command delusions” [sic] from God. The Supreme
Court held, however, that even if such delusions existed, neither voluntariness analysis nor Miranda required
the exclusion of Connelly’s admissions, because the police in this case did not act improperly; Miranda
warnings were given, and the police were not even aware of, or at least did not play on, Connelly’s illness.
According to the Court, it was the illness, not the police, that caused the confession.
After Connelly, then, statements not coerced by the police are admissible under the Constitution, as least as
long as the defendant is not so cognitively impaired that he or she does not understand the right to remain
silent. While earlier Supreme Court cases appeared to adopt the position that the Constitution also protects
against false confessions, independent of any concern about coercion, Connelly rejected that view. After noting
that the lower court had found the confession in that case resulted from the defendant’s mental conflicts
rather than police interrogation,50 the majority in Connelly declared that “[a] statement rendered by one in the
condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the
evidentiary laws of the forum, . . . not by the Due Process Clause of the Fourteenth Amendment.”51 Thus the
Court dismissed the lower court’s holding that the clause requires “inquiries . . . divorced from any coercion

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brought to bear on the defendant by the State.”52 As a result, unless a confession is (1) coerced (2) by the
police, it is admissible as a constitutional matter; defendants seeking to exclude a confession solely on
unreliability grounds must do so under the jurisdiction’s evidence rules, which generally call on judges to
weigh the probative value of the confession against its prejudicial impact.53
Vigorous dissents have accompanied all the Supreme Court’s decisions and many of the lower courts’ cases
as well. Part of the difficulty is that unless one takes the view adopted by the Connelly majority—namely, that
“voluntariness” depends “on the absence of police overreaching, not on ‘free choice’ in any broader sense of the
word”54—then one must somehow resolve the conflicting metaphysical paradigms of action and choice [see §
1.03(a)]. Undertaking this task requires answering questions such as “How ‘hard’ did the police make the
defendant’s choice?” and “Was the defendant psychologically incapable of resisting?” On the one hand, no
amount of police pressure, even the whipping and hanging involved in Brown, entirely overpowers a suspect’s
will, in that the ultimate decision to talk is still the suspect’s choice (albeit a choice with only painful
alternatives). On the other hand, any degree of police confrontation is an influence that may induce or “cause”
a suspect to confess.
Some commentators have argued that, rather than try to litigate these difficulties from a “causation–
compulsion” framework, courts and legislatures should establish per se rules—beyond those laid out in
Miranda—that explicitly indicate which interrogation tactics undermine Miranda comprehension or are
deemed to elicit confessions unfairly. Although the ultimate determination of the fairness of police tactics is a
moral or legal matter, psychologists have amassed convincing empirical data (discussed more fully below)
demonstrating that even individuals who think they understand Miranda rights well do not.55 Furthermore,
the research indicates that even when suspects appear to understand the warnings, commonly used police
interrogation strategies—minimizing the seriousness of the charges, interrogating suspects at length, telling
suspects, “We already know you are guilty,” and presenting suspects with false evidence (e.g., “We have video
showing you were there”)—can induce false confessions with potentially devastating consequences.56 Based on
a survey of this type of empirical literature, White proposed that statements be presumptively inadmissible if
they are made by “mentally handicapped” individuals, result from “lengthy [6 hours or more] interrogations,”
or promise “harsh consequences” or “significant leniency.”57 Domanico and his coauthors suggest that police
should be required to record interrogations, to read and explain the Miranda warnings, to ask suspects to
paraphrase the warnings, and to avoid minimizing their significance.58 Kassin and his colleagues suggest that
courts consider ruling inadmissible confessions obtained following the presentation of false evidence or
minimization of the legal consequences of confessing; they also recommend requiring the presence of counsel
during interviews of naïve juvenile suspects and individuals whose mental vulnerabilities put them at
heightened risk of falsely confessing.59 A few jurisdictions have adopted some of these rules, but the Supreme
Court has not seen fit to adopt any of them as a constitutional matter.60

(b) Evaluation Issues

As noted above, the admissibility of a confession is usually considered prior to trial, with the defendant
arguing either that the confession was not the product of a valid waiver of the rights to remain silent and to
counsel or was in some other way the product of an “overborne will” (the constitutional issue) or that it is

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unreliable (the evidentiary issue). In most cases raising these issues, courts rely solely on the accounts offered
by the interrogating officers, and on transcripts or recordings of the rights notification/interrogation and other
documents (e.g., a rights notification form signed by the suspect prior to undergoing interrogation). However,
mental health professionals are increasingly involved in testifying about the interrogation process—both at
pretrial suppression hearings and, if the confession is nonetheless admitted, occasionally at trial as well.61
Any evaluation of a defendant’s capacity to understand rights and resist the pressures of interrogation is
complicated by the fact that it requires reconstruction of an event that may have taken place weeks or months
before the evaluation occurs. Nonetheless, there is a developing consensus on the manner of conducting these
examinations.62 As a general matter, examiners should focus their assessments on both person-centered
factors (e.g., the defendant’s intellectual functioning, suggestibility, and oral and/or reading comprehension)
and situational factors (e.g., whether the defendant was intoxicated or experiencing symptoms of mental
disorder at the time of the notification; how the defendant was informed about his or her rights; the behavior
of the interrogators; the setting, nature, and context of the interrogation process) that are known to affect a
suspect’s understanding of his or her rights and the ability to exercise them.
More specifically, mental health professionals can be of assistance to courts assessing the admissibility and
weight of confessions in three ways. First, they can offer testimony designed to inform the legal
decisionmaker’s opinions as to whether the suspect’s waiver of rights was knowing (e.g., the suspect’s ability to
the rights given the manner in which they were delivered) and intelligent (e.g., the suspect’s capacity to use
the information about the rights to make a rational and self-interested decision). Second, they can provide an
assessment of factors relevant to whether the confession was voluntary (e.g., the suspect’s vulnerability to
strong assertions of guilt or insinuations that the interrogators are there to “help” the suspect). Third, experts
may provide the court with evidence about the types of techniques that cause false confessions—information
that is directly relevant to the evidentiary inquiry and often relevant to the constitutional inquiry as well.

(1) The “Knowing” and “Intelligent” Inquiry

A significant amount of research supports the conclusion that many defendants do not understand the full
import of their constitutional prerogatives. Using instruments described in more detail below, Grisso found
that a significant proportion of adults (23%) did not understand at least one of the Miranda rights.63 Other
research verifies that many adult suspects misunderstand the warnings; they believe, for instance, that their
silence may be used against them,64 or that only written statements (not oral ones) are admissible.65 Research
by Rogers and his associates found that understanding the Miranda warnings requires at least a middle-school
reading capability.66 Furthermore, Grisso found, contrary to the probable assumption of the courts, that
previous court experience is not a predictor of understanding of the Miranda warnings67—a finding replicated
by other studies.68
Not surprisingly, juveniles and people with limited intellectual abilities are especially likely to be confused
about the warnings. With respect to juveniles, Grisso found:

As a class, juveniles younger than fifteen years of age failed to meet both the absolute and relative (adult norm) standards for comprehension.
. . . The vast majority of these juveniles misunderstood at least one of the four standard Miranda statements, and compared with adults,
demonstrated significantly poorer comprehension of the nature and significance of the Miranda rights.69

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With respect to people with intellectual disabilities, a study using Grisso’s instruments found that these
individuals scored significantly lower than nondisabled individuals, adult or juvenile.70 Using a different
assessment technique, Cloud and associates found that “[i]n contrast to nondisabled controls, mentally
retarded people simply do not understand the warnings. They do not understand the context in which the
interrogation occurs, the legal consequences of confessing, the meaning of the sentences comprising the
warnings, or even the warnings’ individual words.”71 Even individuals with IQs between 71 and 88 were
found to lack the “necessary understanding” of the rights.72
On the other hand, psychosis is not as likely to be correlated with lack of understanding in the confession
context. Using an instrument similar to Grisso’s, Viljoen and colleagues found that although defendants with
intellectual disabilities or with psychotic disorders were less likely than nonpsychotic defendants to understand
interrogation rights, psychosis by itself was not a good predictor of impairment of comprehension.73 This
result has been contested, however.74
In evaluating the “knowing” and “intelligent” prongs of the waiver issue, examiners should first question
defendants about their current understanding of the Miranda warnings (asking for both definitions and
applications). They should then learn step by step what is recalled about the interrogation. What did the
defendant think was the consequence of signing the waivers? What choices did the defendant think he or she
had? If an examinee signed a rights notification form, review of the form and questions about whether it was
read to the suspect or the suspect was asked to read it may provide relevant insight. Obviously transcripts and
recordings can provide useful additional information. Less useful are accounts of the rights notification and
interrogation included in the arrest report. These are often merely summaries of the defendant’s statements,
which may leave out valuable information about how the warnings were given and about the defendant’s
“true” mental state;75 furthermore, they seldom include any description of the all-important interrogation
events that occurred before the warnings are given. Psychological testing may prove helpful as well, given the
relationship between intellectual functioning and understanding of one’s Miranda rights.76
Finally, evaluators should consider use of measures that provide normative data regarding the defendant’s
understanding. In 1981 Grisso published the Instruments for Assessing Understanding and Appreciation of
Miranda Rights, which he developed as part of a larger research project examining juveniles’ and adults
understanding of the warnings. The four measures that make up this battery—Comprehension of Miranda
Rights (CMR), Comprehension of Miranda Rights—Recognition (CMR-R), Comprehension of Miranda
Vocabulary (CMV), and Function of Rights in Interrogation (FRI)—provide normative information about
the examinee’s present-day understanding of vocabulary and concepts related to the interrogation process and
the right to avoid self-incrimination. The CMR measure requires the defendant to paraphrase each of four
Miranda statements, and defendants’ explanations are scored 2–1–0 for the presence of critical elements in
each paraphrase. The CMR-R measure requires the defendant to match each of four Miranda statements to
three alternative statements and to judge whether the alternative means the “same” as or something “different”
from the Miranda statement with which it is paired, yielding a total score that ranges from 0 to 12. The CMV
measure requires that the defendant define six critical words (e.g., “right,” “consult”) contained in the Miranda
statements; these definitions are scored 2–1–0 for the inclusion of key definitional elements, yielding a score
from 0 to 12. Finally, the FRI gives juveniles vignettes about interrogation and assesses their answers to 15
standardized questions on a scale of 0–12. Juvenile norms are available for all four measures, whereas adult

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norms are available for three of them.77
These instruments constituted a significant first step in developing useful tools for evaluating
understanding of rights, and they are widely used.78 However, they have been criticized on a number of
grounds, including the lack of statistics describing some of the tests’ basic psychometric properties, the
absence of ideal comparison groups, and the inability of some of the embedded tests to discriminate because of
the minimal number of items.79 In 2012 Grisso and his colleagues published revised versions of these four
measures and retitled the battery the Miranda Rights Comprehension Instrument.80 Changes included a
more comprehensive test manual, additional test item content, simplified test item language, more
representative normative samples (although normative data are only provided for juveniles), and an expanded
discussion of admissibility issues and appropriate use of the tools. After comparing the relative strengths and
weaknesses of the Miranda Rights Comprehension Instrument and its predecessor, Frumkin and Sellbom
recommended that the choice between the two versions should depend on a number of case-specific factors,
such as the age and intellectual abilities of the examinee and the specific warning provided.81 Additionally,
because the Grisso batteries do not include measures of response style, examiners must be careful to consider
and address these issues by other means.
More recently, Rogers and his colleagues developed and published the Standardized Assessment of
Miranda Abilities (SAMA), which is best conceptualized as a battery of five measures to be used with adult
defendants.82 Like Grisso’s measures, the SAMA instruments provide normative data about an examinee’s
current understanding of and ability to exercise the Miranda rights. The five instruments are the Miranda
Comprehension Template (MCT), Miranda Quiz (MQ), Miranda Vocabulary Scale (MVS), Miranda
Acquiescence Questionnaire (MAQ), and Miranda Reasoning Measure (MRM). The MCT structures the
examiner’s interview of the examinee about the nature and circumstances surrounding his or her detention and
interrogation, and is completed based on review of relevant records (including the specific warning employed
by the interrogating officer) and an interview of the examinee. The MQ is a 25-item, self-administered, true–
false measure that assesses knowledge and misconceptions about Miranda rights. The MVS is a 36-item
measure that requires the examinee to define words that are often included in warnings in various
jurisdictions, with each response receiving a score of between 0 and 4. The MAQ is a 64-item, self-
administered measure that assesses the examinee’s knowledge about the right to avoid self-incrimination and
general attitudes about attorneys and law enforcement officers; its primary function is to assess the examinee’s
acquiescence. The MRM structures the examiner’s discussion with the examinee about the circumstances
surrounding the interrogation, and then suggests how the reasons for the examinee’s decision to invoke or not
invoke his or her rights should be assessed and scored. Like Grisso’s measures, none of the SAMA measures
have embedded measures of response style. Thus, again, examiners must be careful to consider and address
these issues by other means.

(2) The “Voluntary” Inquiry

Evaluation of the “voluntary” prong of a Miranda waiver is arguably much more challenging than evaluation
of the “knowing” and “intelligent” prongs. A step-by-step retrospective interview about the interrogation will
still be necessary, but other information may also be needed. If, for example, there is a question about a

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defendant’s being especially suggestible (an issue that is particularly likely to arise in connection with youth
and those with intellectual limitations),83 the clinician will want to find out more about the defendant’s
response to authority figures in other situations. Several research-based protocols can assist in this endeavor,
of which the Gudjonsson Suggestibility Scale is the best known [see, e.g., Carl Bates report, § 19.03(a)].84
Similarly, if a defendant claims to have been intoxicated at the time of interrogation, information will be
needed about the individual’s drug and alcohol history in order to evaluate the report. Police reports and
eyewitness accounts of the defendant’s behavior are also sometimes helpful, as of course are transcripts or
recordings of the confession itself.
As noted above, the voluntariness inquiry is especially important when the suspect has an intellectual
disability or is young. Fulero and Everington observed that suspects with intellectual disabilities usually have
“a strong desire to please others, especially those in authority,” and “a great deal of difficulty with what is
called ‘social intelligence,’ [i.e.,] the ability to decipher the motives of others, to act on that information
appropriately in complex situations, and to realize the consequences of one’s actions.”85 Thus people with
intellectual disabilities are more easily fooled, manipulated, and intimidated than most others. Similarly,
research demonstrates that children are more suggestible and compliant than adults,86 and that they are more
likely to change their perception of an event under stressful circumstances.87 Juvenile suggestibility is
particularly likely when questions are repeated or negative feedback is given.88 [Further research on juvenile
suggestibility is reported in § 7.07(b)(2).]
The evaluator should also keep in mind that people do confess to crimes they did not commit, even when
the techniques used do not involve physical coercion.89 Kassin and Wrightsman have described three different
situations in which this might occur:90 (1) “voluntary” false confessions, in which the individual confesses with
little or no police pressure, out of a desire for notoriety, a need to expiate guilt for other wrongdoing, or simply
an inability to distinguish fact from fantasy;91 (2) “coerced compliant” false confessions, which occur because
the suspect believes that confessing is the only way to escape from an intolerably stressful interrogation
situation (and which are usually retracted as soon as the confessor does escape); and (3) “coerced internalized”
false confessions, which occur because an innocent person temporarily internalizes the police message of
guilt.92 Based on a small case study, Ofshe suggested that the third type of confession is most likely to occur
when an interrogator, during a lengthy, emotionally intense interrogation, repeatedly displays certainty about
the suspect’s guilt, is able to produce seemingly incontrovertible proof of the suspect’s guilt, and is able to
suggest reasons why the suspect cannot remember committing the crime.93
In view of the fuzziness of the concept in the law and the illogic of the concept in a deterministic
paradigm, clinicians should not couch their reports in terms of “voluntariness” [see generally § 1.03(a)].
Rather, the clinician should report on those aspects of the defendant’s functioning that might make him or
her especially vulnerable to influence by the interrogating officer(s). Where systematic data are available as to
the effectiveness of a given interrogation technique with people of similar characteristics, such research should
also be reported.94 After Connelly, the mere presence of a severe mental impairment does not support a
constitutional claim that a confession was involuntarily made; some proof that police took advantage of the
defendant’s condition is required. Thus, whenever the defense theory is that a confession was unduly coerced,
the examiner should be careful to report from available sources the extent of police interaction with the
defendant, so that the “causal connection” issue can be addressed intelligently.

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 (3) False-Confession Research

After Connelly, the possibility that a confession is false does not, by itself, render the confession inadmissible
under the Constitution. However, as the foregoing discussion indicates, analysis of whether a confession is
“voluntary” often merges with an inquiry into whether a confession is false: The reasoning is that if a person
confessed to something he or she did not do, coercion must have occurred. Thus clinicians often offer, and
courts often accept, testimony about research findings suggesting that certain types of interrogation techniques
are unusually likely to produce false confessions.
This research is ably summarized elsewhere.95 It consists of both simulation research and analysis of actual
interrogations that produced confessions proven to be false through DNA analysis or some other mechanism.
In brief, simulation research has found that police use of “maximization” techniques (e.g., suggesting that a
failure to confess may lead to a negative consequence; fabricating or bluffing about evidence) and
“minimization” techniques (e.g., suggesting a rationalization for the offense; pretending to want to help the
suspect) can lead to false confessions.96 Field research on the extent to which these techniques cause innocent
people to confess confirms that long interrogations (over three hours), especially when combined with false-
evidence ploys, greatly increase the chance that such confessions will occur.97
This research must be taken with a grain of salt, however. The simulation scenarios, which generally rely
on student samples who are not given Miranda warnings, are difficult to generalize to warned criminal
defendants charged with serious crimes and potentially subject to imprisonment.98 Furthermore, because these
studies take place in the “lab” and must abide by research ethics standards, the studies have a hard time
replicating the incentives of real criminal defendants. In the popular “computer crash” paradigm, subjects are
falsely told that they have caused a computer to crash by pressing a button they were told not to press.99
While many of these innocent subjects “confess,” they could easily be doing so because they believe they are in
fact guilty, given the vagaries of typing.100 The better-constructed “cheating” paradigm, in which researchers
obtain confessions from people who in fact did not cheat and presumably know they did not, largely avoids
that problem and corroborates that minimization, false evidence, and bluffing techniques increase false
confessions.101 But the finding in these studies that even those not subject to any manipulative questioning
sometimes falsely confess (at a rate ranging from 6 to 26.7%102) indicates that students may not consider the
consequences of cheating during an experiment that significant.
Research on interrogations involving actual criminal defendants has better external validity. However,
because maximization and minimization techniques occur in a large number of interrogations, most of which
produce true confessions (or at least confessions not known to be false), this research is still ambiguous about
whether the techniques studied are likely to lead people to confess to crimes they did not commit.103 The fact
that 90% of false confessions came after interrogations lasting more than three hours, reported by Brandon
Garrett,104 does not mean that most such interrogations, or even a sizable minority of them, produce false
confessions.
Despite these external and internal validity problems, where the research is convergent—say, with respect
to the impact of minimization techniques or the combined impact of the false evidence ploy and lengthy
interrogation105—this type of evidence should probably be admissible, especially since it will also challenge
preconceptions about the likelihood that an innocent person would confess.

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 7.04. COMPETENCE TO PLEAD GUILTY

More than 90% of all criminal cases are resolved through a guilty plea rather than through a verdict reached
after a trial.106 As is true with confessions, such pleas must be “knowing” and “intelligent,” as well as
“voluntary.”107 According to the Supreme Court, to make a “knowing” plea, a defendant must understand at
least three aspects of the criminal process: (1) the nature of the charge pled to;108 (2) the penalties associated
with the charge;109 and (3) the rights waived by the plea of guilt, including the right to remain silent, the right
to confront one’s accusers, the right to a jury trial, and the right to trial counsel.110 This determination must
be made by a judge, on the record, at a plea hearing (often called the “arraignment” [see § 2.04(a)(1)]). At the
same time, the typical plea-taking process is short; it consists of a series of questions directed at the defendant,
who usually answers in monosyllables, as directed by the defense attorney. The assumption is that the attorney
has determined that the plea is in the defendant’s best interest and has explained to the defendant the
consequences of pleading guilty.111
Until the early 1990s, a crucial constitutional question in connection with guilty pleas was whether a person
who pleaded guilty had to be “more” competent than a person who decided to go to trial. The rationale for so
holding, endorsed by the Ninth Circuit in Sieling v. Eyman,112 was that a person who pleads guilty not only
has to understand the charge and its consequences (as is true with a defendant undergoing trial), but also must
be able, as indicated above, to understand and waive intelligently various constitutional rights. According to
Sieling, because “the degree of competency required to waive a constitutional right is that degree which enables
him to make decisions of very serious import” (emphasis added), the degree of competence necessary to make
a guilty plea valid must be higher than that required for competence to stand trial.113 Thus, the Sieling court
held, “[a] defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to
make a reasoned choice among the alternatives presented to him and to understand the nature of the
consequences of his plea.”114
However, in Godinez v. Moran115 (the facts of which are described in Case Study 7.1), the United States
Supreme Court rejected this standard, holding with the majority of federal courts that a person who is
competent to stand trial is also competent to plead guilty. The principal reason the Court gave for this
conclusion was that, contrary to the insinuation in Sieling, a person who stands trial, like a person who pleads
guilty, must also be able to decide whether to remain silent (when deciding whether to take the stand),
confront accusers (when it comes time for their cross-examination), and waive the right to a jury trial. Justice
Thomas wrote for seven members of the Court:

[All c]riminal defendants—not merely those who plead guilty—may be required to make important decisions once criminal proceedings have
been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions
that a defendant may be called upon to make during the course of a trial.116

As a practical matter, most defendants who go to trial do not consider waiving their rights to remain silent,
confront accusers, or be heard by a jury, and therefore do not have to make the momentous decisions that a
person pleading guilty must make; thus the Supreme Court’s justification for its holding in Moran is
somewhat disingenuous. But there are other reasons to support its conclusion equating competence to stand
trial with competence to plead guilty. As one commentator pointed out, the Sieling standard could “create a
class of semi-competent defendants who are not protected from prosecution because they have been found

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competent to stand trial, but who are denied the leniency of the plea bargain process because they are not
competent to plead guilty.”117 Moreover, as others have argued,118 the danger of inappropriate pleas by such
“semi-competent” individuals is mitigated by the fact that counsel can be assumed to have already made “a
reasoned choice among the alternatives,” even if the defendant is incapable of doing so.
In short, in those jurisdictions that follow Moran (i.e., all federal jurisdictions and most states), the
clinician performing a pretrial evaluation of competence need not “adjust” the competence standard according
to whether the defendant is likely to plead guilty or go to trial. As described in Chapter 6, the standard
evaluation of a defendant’s competence to proceed requires assessment of his or her understanding of the
charges and their consequences and of the nature of the process, including the trial rights that are waived
through a plea, which are precisely the issues that need to be addressed with respect to competence to plead
guilty as well. It is worth emphasizing, however, that to ensure that defendants are competent in the
appropriate areas, all defendants should be questioned about their understanding of the rights they waive
when they enter a plea of guilty or no contest. An instrument that was developed with this objective in mind
is the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA), described in §
6.07(c)(1).
The MacCAT-CA also examines the reasons for a guilty plea and tries to differentiate between rational
and irrational ones (e.g., “I’m pleading guilty because I signed a confession” vs. “I’m pleading guilty because
I’m the worst sinner in the world”). Although one might assume that the rationality of a person’s decision to
plead guilty is a crucial consideration, Moran does not explicitly require courts to assess this issue. Rather, it
merely draws a distinction between the “competence” inquiry and the inquiry into whether a plea is “knowing”
and “voluntary.” According to the Court, “[t]he focus of a competency inquiry is the defendant’s mental
capacity; the question is whether he has the ability to understand the proceedings. The purpose of the
‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand
the significance and consequences of a particular decision and whether the decision is uncoerced.”119 The
Court then quoted a previous Court decision, which required that a defendant must have “a full
understanding of what the plea connotes and of its consequences.”120 Although an inquiry into a defendant’s
“understanding of what the plea connotes and of its consequences” might include an investigation of the
person’s reasons for pleading guilty, the Court affirmed Moran’s conviction without addressing that issue (or
the effects of Moran’s depression).
Despite this ambiguity, an evaluator is well advised to elicit information about a person’s reasons for
wanting to plead guilty or go to trial, as the MacCAT-CA does. The determination of whether a waiver is
“knowing” goes beyond assessing competence to proceed; rather, it is a matter of decisional competence that
requires an inquiry into whether the waiver of rights associated with a guilty plea reflects autonomous
decisionmaking. The examiner should consider the defendant’s reasons for the decision, because evidence of
irrational reasoning (e.g., a psychotic defendant who says “I’m pleading guilty because space aliens told me to,”
or a clinically depressed defendant who says “I’m pleading guilty because I don’t care what happens to me”)
suggests an individual whose autonomy is seriously impaired. If assessment of the reasons a defendant gives
for pleading guilty is undertaken in connection with the usual competence-to-proceed evaluation, the
examiner will have obtained sufficient information for the “knowing” prong of the guilty plea inquiry [see the
Carl Bates report, § 19.03(a)].

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 It will then be for the judge to determine whether the person’s plea meets this requirement. Bonnie has
argued that the court should vary its conclusion on this issue, depending on whether the defense attorney
agrees with the defendant’s decision to plead guilty. If there is such agreement, the plea should be accepted as
long as the defendant understands the process and the rights being waived (and thus, Bonnie asserts, no
inquiry into his or her reasons for the plea is necessary in this scenario). When the defendant and attorney
disagree, on the other hand, Bonnie would require the court to ascertain the defendant’s reasons for pleading
guilty and would permit acceptance of the plea only if they evidence a “well-reasoned choice.”121 Slobogin and
Mashburn, on the other hand, have argued that respect for the defendant’s autonomy requires that a plea
recommended by the attorney be accepted only when the defendant understands the process and gives rational
reasons for a plea after considering the alternatives; at the same time, they argue that if the defendant meets
both of these criteria, the plea must be accepted regardless of the attorney’s views or of whether the
defendant’s views are “well-reasoned.”122 The fact that either one of these approaches, or some third
approach, might be taken by the courts argues for avoiding the ultimate issue of whether a plea is “knowing”
in evaluation reports and testimony.
The evaluator must also consider the “voluntary” component of the inquiry. Most guilty pleas are reached
through the plea-bargaining process, in which the prosecutor offers either a reduced charge or the promise of
a favorable sentencing recommendation in exchange for a plea of guilty.123 In short, guilty pleas typically
result in less aversive consequences than are risked by going to trial. Are such avoidance responses truly
“voluntary”?
The Supreme Court has answered this question in the affirmative. In Bordenkircher v. Hayes,124 the
prosecutor threatened to charge the defendant as a “habitual offender” (conviction of which would carry a
mandatory life sentence) if he did not agree to plead guilty and accept a five-year sentence. The Court found
nothing unconstitutional about the prosecutor’s action, because the “habitual offender” charge was legitimate
under state law and the defendant was free to accept or reject the prosecution’s offer. According to the Court,
“the imposition of these difficult choices [is] an inevitable—and permissible—attribute of any legitimate
system which tolerates and encourages the negotiation of pleas.” Similarly, in Brady v. United States,125 the
Supreme Court refused to invalidate a guilty plea given in exchange for a life sentence, despite the defendant’s
claim that he had pleaded guilty out of fear that he might receive the death penalty had he gone to trial and
been convicted. The Court explained that although fear of the death penalty might have “caused” the plea, it
did not coerce it; the latter would have been true only if the defendant had proven he “was so gripped by fear
of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally
weigh the advantages of going to trial against the advantages of pleading guilty.”
This extreme construction of voluntariness may not be the last word. The Brady Court itself suggested that
some types of government “threats” and “unfulfillable promises” might exert enough pressure on a defendant
to invalidate any subsequent guilty plea, regardless of the person’s rationality at the time it was made.126
Furthermore, in contrast to the confession context [see discussion of Connelly in § 7.03(a)], the government
may not even have to create this pressure for a plea to be invalid. Suppose, for instance, that a defendant with
intellectual disability places so much trust in counsel that he or she immediately accepts the attorney’s
suggestion to plea-bargain, without considering any of the options. Should not such a plea be considered
“involuntary”? Similarly, a defendant like Moran who is so depressed that he appears to abdicate all

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decisionmaking authority might be said to have seriously compromised autonomy. As noted in the preceding
section, there is no scientific basis for differentiating these cases on the basis of voluntariness, but courts might
nonetheless consider such information important.
The implications for the mental health professional of this analysis of the voluntariness prong of the
decision to plead guilty or no contest are straightforward. At the time of evaluation, the defendant usually will
not yet have made a definitive decision about pleading guilty or no contest, so the evaluator can only point to
personality traits that might make the person suggestible or prone to “irrational” fear. Occasionally a decision
to plead has been made, and the evaluator will have more direct evidence about the defendant’s specific
thought process. In either case, the examiner should describe the defendant’s reasoning about the decision and
any susceptibility to internal or external pressures to accept an offer, and should leave to the judge
determination of whether the choice was so hard as to render the plea involuntary.

7.05. COMPETENCE TO WAIVE THE RIGHT TO COUNSEL AND TO

REPRESENT ONESELF

The decision that is probably most likely to have an adverse effect on a defendant’s ability to achieve a fair trial
is the waiver of the right to trial counsel. Because this decision deprives the defendant of a legally trained
advocate, it will seldom if ever be in a defendant’s best interests.127 Nonetheless, in Faretta v. California,128
the United States Supreme Court held that the Sixth Amendment guarantees criminal defendants a right to
self-representation. Writing for the majority, Justice Stewart emphasized that procedural rights of due process
belong to the accused, not his or her counsel:

[The Sixth Amendment] speaks of the “assistance” of counsel, and an assistant, however expert, is still an assistant. The language and spirit
of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing
defendant, not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel
upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant but a
master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.129

The Court noted further that although the defendant may ultimately be acting to his or her detriment in
deciding to proceed pro se, the value of free choice is worthy of constitutional protection even when the choice
could increase the likelihood of criminal punishment.
In its decision in Faretta, the Court did not attempt to define competence to waive counsel. But it did
emphasize that a defendant is not incompetent to waive the right to an attorney merely because he or she may
be unable to understand technical legal matters such as the hearsay rules or the rules governing selection of the
jury. At the same time, earlier Court decisions had suggested, without deciding, that the level of competence
required for the decision to waive the right to counsel was “higher” than that required to stand trial or plead
guilty with the aid of counsel.130 This conclusion would seem to follow from the idea that counsel is crucial to
a fair trial in our adversarial system; recall also [from § 7.04] that the primary rationale for equating
competence to stand trial and competence to plead guilty is that counsel can ensure that the latter decision is a
wise one, which is much less likely if a defendant who is merely competent to stand trial is allowed to
discharge the attorney before making a plea.
In Godinez v. Moran,131 however, the Court not only found competence to stand trial and competence to

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plead guilty to be equivalent (as discussed in the preceding section), but also held that a person who is
competent to stand trial is competent to waive the right to an attorney. According to the majority, “the
competence that is required of a defendant seeking to waive his right to counsel is the competence to waive
the right, not the competence to represent himself.” Noting, as had the Faretta Court, that the right to self-
representation inevitably will mean some defendants will “conduct [their] own defense ultimately to [their]
own detriment,” the Court stated that “a criminal defendant’s ability to represent himself has no bearing upon
his competence to choose self-representation.”132
However, as with the guilty plea decision, the Court in Moran also held that the trial judge must determine
that the waiver is “voluntary” and “knowing.” Presumably voluntariness in this setting is assessed in the same
manner as it is with guilty pleas, and the reader is referred to discussion in the previous section about that
topic. To be knowing, the Moran Court stated, the defendant “must be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that he knows what he is doing and his
choice is made with eyes open.” In other words, the defendant not only must be competent to understand, but
must actually understand, the consequences of the waiver decision.133 As with guilty pleas, the Court did not
explicitly state that the court must inquire into a defendant’s reasons for waiving the right to counsel, or that it
must deny waiver if the reasons are irrational; however, given the fact that such a waiver is rarely a good idea,
both rules make sense.
It should also be noted that if a person does waive counsel and proceed to trial, the trial court is authorized
to appoint “standby counsel.” In McKaskle v. Wiggins,134 the Court held that a defendant who successfully
waives the right to counsel can nonetheless be forced to proceed with such counsel, as long as he or she retains
actual control over the case presented to the jury, and the jury understands that the defendant is representing
him- or herself. Under these conditions, the standby counsel can provide the pro se defendant advice about
tactics and information about legal rules.
Furthermore, 14 years after Moran, the Court announced a significant caveat to that decision. In Edwards
v. Indiana,135 the Court held that defendants who are competent to stand trial and waive counsel may
nonetheless be required to accept counsel if they “still suffer from severe mental illness to the point where they
are not competent to conduct trial proceedings by themselves.”136 Concerned about the dignity of the
courtroom and fairness to defendants, the Court in essence ignored Moran, at least when the defendant wants
to go to trial rather than plead guilty. Unfortunately, the Court declined to provide further clarification about
when a person who is competent to waive counsel is incompetent to represent him- or herself, except to
indicate that an “inability” to carry out “basic trial tasks” might meet that test.137
As a practical matter, evaluations of waiver of counsel and competence to represent oneself will usually not
be part of the typical competence evaluation. An evaluator can assume that a defendant being evaluated for
competence to proceed will not discharge his or her attorney. The waiver-of-counsel issue is most likely to
arise, as it did in Moran and Edwards, after the defendant has been adjudicated competent to proceed and
then decides to proceed pro se. If asked to do such an assessment, the clinician should first conduct a standard
competence-to-proceed evaluation, supplemented by additional inquiries into whether the defendant is aware
of the disadvantages of proceeding without counsel. These latter inquiries should involve assessing the
examinee’s understanding of the kinds of tasks an attorney performs (such as selection of a jury, opening and
closing statements, selecting and questioning witnesses, and evidentiary objections). Analogous to the guilty

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plea inquiry and other decisional competence evaluations, the examiner should next assess the reasons for
wanting to proceed pro se, with an eye toward identifying whether this decisionmaking process is somehow
tainted or compromised by symptoms of mental disorder.
Clinicians should be particularly alert to attitudes about the legal process that are the products of mental
disorder. These could include defeatist attitudes (e.g., “A lawyer won’t be any help, because I’m guilty”),
paranoid ideation (e.g., “All lawyers are against me”), or clearly fantastic objectives (e.g., a defense based on
the assumption that a murder victim is not dead) or irrational beliefs (e.g., supernatural powers will prevent
the jury from returning a guilty verdict). Historically, courts have been more willing to declare a defendant
incompetent in such situations.138 On the other hand, defendants who want to proceed pro se because they
think they can do a better job than a lawyer, who believe that a lawyer will not effectively communicate their
message, or who disagree with the lawyer’s objectives and strategies are not likely to be found incompetent
unless their reasoning is clearly irrational (i.e., the product of or tainted by mental disorder).139 Because the
importance of these variables may differ from case to case and court to court, our usual injunction to be careful
about addressing the ultimate issue stands here as well.
If the defendant pleads guilty, a comprehensive evaluation focused on the issues just described should be
sufficient. However, if the defendant wants to go to trial without an attorney, then, under Edwards, further
inquiry into the defendant’s ability to carry out trial tasks is necessary. Arguably, if the defendant is able to
communicate with defense counsel and testify relevantly (both of which should be true of a defendant who is
competent to stand trial), and if the defendant can give rational reasons for waiving counsel (which is true of a
defendant who is competent to waive counsel), the defendant should be permitted to proceed pro se. But
Edwards clearly contemplates a further degree of competence, perhaps involving the capacities to
communicate in public and to concentrate. At the same time, the Court’s decision in Faretta emphasized that
the defendant’s constitutional right to self-representation is not forfeited simply because the individual “may
conduct his own defense to his ultimate detriment.”140 Clinicians performing this type of evaluation should
assess a wide range of cognitive functions (e.g., concentration, reasoning, and communication capacities),
since the courts have not identified a uniform definition or legal test for determining when a person is
competent to proceed without counsel.141

7.06. COMPETENCE TO REFUSE AN INSANITY DEFENSE AND OTHER

MENTAL STATE DEFENSES

A variant of decisional competence arises when the defense attorney, the prosecution, or the court believes
that a defendant may have been insane at the time of the offense, but the defendant does not want to assert
such a defense. An analogous situation arises when the defendant in a capital case objects to presentation of
mitigation evidence in a capital proceeding (as occurred in Moran) or to presentation of a “diminished
capacity” defense at trial [see § 8.03(b) for a discussion of this defense]. Does the court or the defense attorney
have the authority, or perhaps even the duty, to raise these defenses over the defendant’s objection?
With respect to the insanity defense, the appellate courts have been divided in their approach.142 One line
of cases is illustrated by Whalem v. United States,143 in which Judge Bazelon, writing for the federal Court of
Appeals for the D.C. Circuit, appeared to require trial judges to impose an insanity defense when the defense

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would be likely to succeed:

One of the major foundations for the structure of the criminal law is the concept of responsibility, and the law is clear that one whose acts
would otherwise be criminal has committed no crime at all if because of incapacity due to age or mental condition he is not responsible for
those acts. . . .
In the courtroom confrontations between the individual and society, the trial judge must uphold this structural foundation by refusing to
allow the conviction of an obviously mentally irresponsible defendant, and when there is sufficient question as to a defendant’s mental
responsibility at the time of the crime, that issue must become part of the case. Just as the judge must insist that the corpus delicti be proved
before a defendant who has confessed may be convicted, so too must the judge forestall the conviction of one who in the eyes of the law is
not mentally responsible for his actions.144

The Whalem formulation thus emphasizes society’s interests in avoiding the conviction of a morally blameless
person. Although it permits judges, in their discretion, to take the defendant’s interests into account as
well,145 these interests would not be dispositive.
In contrast, a second line of cases, led by Frendak v. United States,146 requires that the defendant’s decision
regarding assertion of the defense be followed when the defendant is competent to make it. Pointing to the
United States Supreme Court’s post- Whalem decisions in North Carolina v. Alford147 (which held that a
competent defendant is permitted to plead guilty even when denying guilt) and Faretta v. California148
(establishing, as noted in the previous section, the right to represent oneself), the Frendak court concluded
that “respect for a defendant’s freedom as a person mandates that he or she be permitted to make fundamental
decisions about the course of the proceedings.”149 The court then noted several reasons why a defendant
might choose to refuse an insanity defense: (1) An insanity acquittal may result in a longer period of
confinement than would conviction; (2) the defendant may believe that better treatment will be received in
prison than in a mental hospital; (3) the defendant may wish to avoid the stigma associated with mental
disorder; (4) commitment to the mental health system may result in collateral loss of legal rights (e.g., the
ability to obtain a driver’s license); or (5) the defendant may view the crime as a political or religious act,
which an insanity defense would negate.150 The court was persuaded—properly, in our view—that because
the defendant must bear the consequences of any decision, these types of reasons are more compelling than
Whalem’s objective of upholding society’s concept of justice. Accordingly, Frendak limits the inquiry about
whether a defendant may refuse an insanity defense to an investigation of the defendant’s competence to
waive the defense.151
Frendak is clearly the majority view.152 Indeed, Whalem itself was overturned in United States v. Marble.153
But a few jurisdictions still adhere to the Whalem approach.154 The same uneven split exists in connection
with the presentation of mitigation evidence at sentencing; despite strong arguments that, at least when the
death penalty is at issue, society should be able to override a competent individual’s decision to forgo evidence
of mitigation,155 the clear trend is in the direction of permitting defendants to waive the presentation of such
evidence.156 The trend is somewhat less evident when counsel or the court wants to assert other mental state
defenses over a defendant’s objection, if only because very few cases address the issue.157
In those jurisdictions that allow imposition of a mental state defense over a competent defendant’s dissent,
the scope of the evaluation will be akin to a typical evaluation of mental state at the time of the offense; the
primary issue is whether the weight of the evidence points toward a viable defense, although the defendant’s
reasoning process in rejecting the defense may be considered relevant. On the other hand, in a Frendak-style

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jurisdiction, the nature of the evaluation will be similar to that required to assess competence to proceed.
Indeed, in light of Moran (discussed in the preceding sections), the Supreme Court would probably hold that
a person who is competent to stand trial is competent to waive the insanity defense.158
Yet, as with other decisional competencies, the clinician performing a Frendak-type evaluation should be
aware that there are differences between the typical decisions made by a defendant who is undergoing trial or
pleading guilty and the specific decision as to whether to assert an insanity defense. In particular, as the court
in Frendak recognized,159 an assessment of the latter decision might need to focus on whether a refusal to
pursue an insanity defense is related to a denial of one’s mental disorder (e.g., when the defendant’s claim that
an insanity defense should be rejected rests on the assertion that “there is nothing wrong with me”). If so, the
scope of the evaluation may go well beyond the typical competence-to-proceed evaluation and (as in Whalem
jurisdictions) require an assessment of mental state at the time of the offense.
Moreover, even if competence to waive an insanity defense is equated with competence to proceed, the
waiver must be voluntary and knowing, as is true with competence to plead guilty and to waive the right to
counsel. Thus the clinician will also need to explore the defendant’s understanding of alternative defenses and
their consequences, and the perceived probability of their success. In so doing, the inquiry once again may
focus on the viability of an insanity defense and whether the defendant’s reasoning is influenced by symptoms
of mental disorder.
Whether the defendant’s decisionmaking is so impaired that a finding of incompetence to refuse an
insanity defense is warranted is, of course, a matter for the judge to decide. As with guilty pleas, courts may
follow Bonnie’s suggestion and require “more” for a valid waiver of mental state defenses when the waiver is
against the attorney’s advice. That may have been what occurred, for instance, in the case of Theodore
Kaczynski, the so-called “Unabomber.” Despite its assumption that Kaczynski was competent to stand trial
and its willingness to allow him to plead guilty (on his attorney’s advice), the court in that case was apparently
also willing to allow Kaczynski’s defense attorneys to assert a mental state defense over his objection, had the
case gone to trial.160 Others have argued, in contrast, that if the defendant understands the risks and benefits
involved, and rejects a mental state defense for one of the reasons identified in Frendak, waiver should
normally be accepted even from a defendant who exhibits symptoms of mental disorder.161

7.07. COMPETENCE TO TESTIFY

Based on the principle that only evidence that has some probative value is admissible, courts have long held
that people who are incapable of remembering or reporting what they have observed, or have no ability to
grasp the importance of accurately doing so, may not testify. Thus testimonial competence is still another
competence issue that a forensic clinician may be asked to address. Two differences between this type of
competence and the others discussed in this chapter should be apparent, however. First, whereas the other
competencies addressed herein concern only the defendant, the issue of testimonial competence may arise in
connection with any person who might testify. Second, testimonial capacity arises in civil as well as criminal
trials. It is discussed here because it most often arises in criminal trials, particularly in a criminal prosecution in
which the defendant is alleged to have abused a child who may be called to testify.
Also discussed here is the closely related issue of expert evaluation of and testimony about a witness’s

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credibility. Mental health professionals have been increasingly involved in assessing and commenting upon the
truthfulness of testimony offered by witnesses who are competent to testify, but whose mental condition raises
questions about their veracity. The fourth subsection below examines this complex area.

(a) Legal Requirements for Testimonial Competence

Until the 1970s, the law of most states presumed that children under a certain age (e.g., 10 or 14) were
incompetent to testify, meaning that the party tendering a child as a witness had to prove competence.162
Although there was typically no similar presumption about those with mental disabilities, courts routinely
barred persons with significant impairments from testifying.163 The modern trend, in contrast, is to presume
that everyone is competent to testify, with any concerns about capacity to be addressed by the factfinder.164 In
1975 the Federal Rules of Evidence added Rule 601, which simply states that “[e]very person is competent to
be a witness” unless his or her testimony is irrelevant or likely to mislead the factfinder, or the person is unable
or unwilling to promise to testify truthfully.165 Describing current law at the federal level, Louisell and
Mueller go so far as to state:

Only in extreme cases—imaginable, but unlikely to be encountered often—should a trial judge exclude a witness [on the grounds of
incompetency]. Neither immaturity nor mental or psychological disability, nor even the use of drugs or alcohol, will ordinarily signify that a
witness cannot provide relevant evidence, or will inject into the case in undue degree the concerns underlying Rule 403 [which allows
exclusion of evidence that will create “unfair prejudice [or] confusion of the issues,” will “mislead the jury,” or will cause “undue delay, waste
of time or needless presentation of cumulative evidence”].166

Although a few states still set a presumptive age for incompetence, most states have since followed the federal
lead, or at most have set out guidelines for determining whether a witness is competent.167
In many jurisdictions, moreover, a witness who claims to be a victim of abuse and is testifying against the
alleged abuser is irrebuttably presumed to be competent168—a rule that has withstood constitutional
challenge.169 These “automatic competence” statutes are principally the result of the same campaign that gave
rise to child abuse reporting laws [see § 15.01(c)]. But they are also justifiable on grounds elucidated by the
noted evidence authority Dean Wigmore many years ago:

A rational view of the peculiarities of child-nature, and of the daily course of justice in our courts, must lead to the conclusion that the effort
to measure a priori the degrees of trustworthiness in children’s statements, and to distinguish the point at which they cease to be totally
incredible and acquire some degree of credibility, is futile and unprofitable. . . . Recognizing on the one hand the childish disposition to
weave romances and to treat imagination for verity, and on the other the rooted ingeniousness of children and their tendency to speak
straightforwardly what is in their minds, it must be concluded that the sensible way is to put the child upon the stand and let the story come
out for what it may be worth.170

It is important to note, however, that except in those jurisdictions requiring the admission of testimony
from alleged child abuse victims, modern law merely makes testimony by children and those with mental
disabilities more likely than under the common law; it does not prevent a judge from barring testimony on
competence grounds. Just as the common-law presumption of incompetence for children was rebuttable, the
modern presumption that everyone is competent may be overcome with sufficient evidence showing that a
person’s mental incapacity will render his or her testimony irrelevant, misleading, or incredible.171 Indeed, as
Weissenberger has noted, a preliminary hearing on the competence issue “is advisable in any case in which the

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trial judge has reason to believe that the witness’s testimony might be impaired by infancy, counter-probative
mental or psychological conditions or chemical influence.”172
The precise criteria the judge applies at such a hearing vary from state to state, but as summarized by
Myers,173 they focus on five capacities: (1) the ability to observe the event, (2) the ability to remember it, (3)
the ability to communicate that memory, (4) the ability to tell the difference between truth and falsity, and (5)
the ability to understand the obligation to tell the truth in court.174 Given the language of Rule 601 and its
state counterparts, presumably only minimal capacity in each of these areas is necessary. Nonetheless, courts
and parties have occasionally sought assistance from the behavioral sciences when questions about a witness’s
competence have been raised. To aid in this endeavor, the following discussion describes empirical research
relevant to the five areas described (the last two of which are discussed together). It also attempts to explicate
the legal implications of the research.

(b) Psychological Research

As the previous discussion suggests, the four categories of individuals most likely to trigger testimonial
capacity concerns are children, people with intellectual and other developmental disabilities, people with
mental illness, and those who have abused substances. Because the literature is most robust in connection with
children, this review focuses on what is known about their testimonial capacities. However, a few references to
research on the capacities of those with intellectual disabilities are noted as well. No research specific to
persons with mental illness or substance abuse is offered, though much of the discussion that follows may
prove helpful in such cases as well.

(1) Observation

Unless a child or a person with a mental disability has some significant visual or hearing deficits, his or her
capacity to sense events will usually be sufficient to meet the first prong of testimonial capacity. It is possible,
however, that some very young children or people with severe intellectual or other developmental disabilities
may not have the ability to process all types of events.175 For instance, although children seem to have the
capacity to recognize familiar faces and absorb simple scenarios, Johnson and Foley found that “recognition of
more complex events, such as unfamiliar, disguised faces . . . or complex scenes . . . evidently require processes
that are more likely to develop with age.”176 Children may also have difficulty grasping the meaning of
sophisticated conversations. At the same time, children still seem to be able to register an event even if they do
not understand it.177 Moreover, children who are called on to testify will typically be asked to describe
relatively concrete actions by people they know; if so, little question about their capacity to observe events
should exist. A separate issue is their ability to conceptualize and describe what has been observed—a topic
discussed in connection with ability to communicate.

(2) Memory and Suggestibility

Because legal proceedings often occur months or even years after the legally relevant event, the capacity to

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remember what was observed is as important as the capacity to observe. Furthermore, the capacity to
remember events accurately is virtually inseparable from one’s capacity to resist suggestion from other sources.
Thus research on both memory and suggestibility is important in evaluating this competence criterion.
Most of the research in this area has been conducted in connection with children. According to Lamb and
his colleagues, “age is the most important determinant of children’s memory capacity.”178 Yet, although
children are less likely than adults to retain memories of what they heard or observed, all but the youngest
children probably have good enough memories to pass the minimal requirements for testimonial capacity. On
the closely related issue of the extent to which memory may be affected by outside influences, most studies
indicate that young children are more suggestible than adults.179 Again, however, this finding alone probably
should not and typically does not render a child incompetent to testify. In most states, concerns about a
particular child witness’s vulnerability to suggestion go to the weight of the evidence, not its admissibility.
In assessing memory retention capacity, inquiries about two different types of memory should be noted:
questions about “recognition memory,” in which a person is asked whether he or she recognizes a person or a
place, and questions about “recall memory,” in which a person is asked to describe an event, person, or place.
Even children as young as three and four appear to perform as well as adults on some recognition memory
tasks. For instance, a child who is asked to identify previously seen pictures or faces should be able to do
almost as well as an adult, as long as no intervening suggestions have taken hold.180 Research also indicates
that even when a previously unfamiliar perpetrator is present in a lineup, five- and six-year-olds’
identifications can be as accurate as adults’.181 However, when a child has had only brief exposure to the
perpetrator or is very young, accuracy decreases.182 Furthermore, when the suspect is not present in the lineup,
children as old as nine tend to make more errors than adults,183 and there is some evidence that young
children may sometimes place familiar people at an event who were not actually there.184 However, children’s
tendency to make more identification errors in both target-present and target-absent lineups may be
minimized by use of sequential versus simultaneous lineups,185 or by providing specific instructions that the
perpetrator may or may not be present.186
Recall memory requires more sophisticated cognitive processes than recognition memory. Accordingly, a
child who is asked to describe a past event, such as an assault, will find the task relatively more difficult than
will an adult. The difference between the recall memory of children and adults depends primarily on two
variables: time, and the extent to which other versions of the event have been suggested by third parties (the
“suggestibility” issue).
When the time interval between the event and the attempt at memory recall is short, children apparently
do not do appreciably worse than adults. For instance, in a study by Marin and colleagues,187 students ages 5–
22 observed a confederate of the experimenter interrupt a session to complain angrily about the experimenter’s
using a room that was supposedly already scheduled. Participants were questioned about the incident after a
brief interval (10–30 minutes) and after two weeks. Memory was assessed via free recall, objective questions
(including one leading question), and photo identification. Older participants produced much more material
on free recall (mean number of descriptive statements: kindergarten and first grade, 1.42; third and fourth
grades, 3.75; seventh and eighth grades, 6.50; college students, 8.25). However, the younger participants
performed no worse than the older ones in answering objective questions and making photo identification
(supporting the findings about recognition memory noted earlier). Furthermore, the youngest participants

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were significantly more likely than adults to recall the event correctly on those occasions when they did
produce information (only 3% incorrect).188
As the time interval between event and recall lengthens, however, children do not do as well as adults in
recalling events.189 For instance, one study found that the proportion of inaccurate information from six- and
nine-year-old children doubled from 9% one day after the event to 18% five months after the event, whereas
the error rate for adults for the two time periods remained constant (10% vs. 8%).190 A similar pattern was
found in a study of children ages four to eight years: Although the error rate one week after the event was
similar among children and adults (7% on average), two years later the children’s error rate was 20%, whereas
the adults’ remained the same.191 This study also found that two years later 21% of the children attributed
actions to one person that had actually been performed by another—an error not made by any of the adults,
and one that has obvious legal implications. Finally, infantile amnesia can obscure memories of very early
childhood if enough time elapses.192 More research needs to be done, however, on whether children’s memory
fades more quickly than adults’ when a particularly negative event is involved.193
Presumably, one way of alleviating the effects of memory decay would be to obtain an early account of the
legally relevant event. A number of authorities recommend that interviews of child witnesses occur as close in
time as possible to the event(s) in question.194 Indeed, several studies have found that “events that are
personally significant, emotion-laden, and rehearsed are less likely to be lost from memory” (emphasis
added).195 As Poole and White suggest, a postevent interview may act as a “memory consolidator” for
children. However, they also conclude that it will have this effect only if it occurs less than a week after the
event, and only if it avoids specific (i.e., yes–no) questions.196 Unfortunately, neither of these conditions is
easily met in legal contexts such as abuse cases. Allegations of abuse may not arise until a significant amount
of time has elapsed since the alleged event. More important, use of open-ended questions, which is generally a
good idea in any forensic interview, may not be as productive where children are involved. As suggested by the
Marin et al. study described earlier, and as Poole and White themselves note, “it is exceptionally difficult to
get children to volunteer information with general questions.”197 In short, young children require direct cues,
such as specific, direct questions, to stimulate recall.198
These various observations bring to the fore the issue of suggestibility, which many courts have recognized
as an important component of competence analysis.199 Although specific questions may be the best method
for obtaining information from children, they are also most likely to contain cues as to how to answer. Hence
the “memory” recounted by a child may be suggested inadvertently (or advertently) as an adult helps the child
to make sense of the experience.
Here again the research is relatively clear. Although adults as well as children are prone to fill in perceptual
and memory gaps with stereotypical information and postevent suggestions,200 most studies find that young
children are more likely to accede to such suggestions, especially when they are made by authority figures who
act in an intimidating fashion.201 According to Ceci, children over 10 or 11 years of age tend to show adult
levels of resistance to leading questions.202 But children under 6 may acquiesce fairly frequently, especially
when questions are “highly leading, detailed, incriminating, and repeated over multiple interviews,” with
children in between showing varying levels of vulnerability.203 Vulnerability to suggestions may be particularly
high when, as is often the case with child witnesses in criminal and civil cases, the adults proffering the
suggestions are persons who saw the event. For instance, Warren and Lane found that the nine-year-olds in

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their study were significantly more likely than adults to adhere to the suggestions of adult interviewers who
had seen the event in question.204 Indeed, when the “suggester” has witnessed the event, his or her age may
not be a major determinant of suggestive power. Haugaard et al. showed children ages four to six a videotape
of a girl who was approached but not touched by a neighbor, and then falsely accused him of assaulting her.
Apparently responding to the girl’s lie, 29% of the children incorrectly recalled that the assault occurred,
whereas none of the undergraduates who viewed the tape did.205
This correlation between age and suggestibility can be explained in a number of ways, none of them
mutually exclusive. It is likely due in part to children’s weaker memory over time, discussed previously. It is
also likely due to young children’s greater respect for authority—a hypothesis bolstered by simple learning
theory, which suggests that children’s behavior will be shaped by their perceptions of adults’ expectations.206
Finally, it may have something to do with children’s moral development. As Fodor discovered,207 children
who yield to the suggestions of an adult interviewer tend to score lower on assessments of level of moral
judgment (according to Kohlberg’s criteria) than children who resist such suggestions.
Although the research is not as extensive, studies examining the capacities of persons with intellectual and
other developmental disabilities yield results similar to those obtained with children. As with children, the
method most likely to garner information from those with intellectual or developmental disabilities is also the
method most likely to taint it. Because of their cognitive deficiencies, individuals with intellectual and other
developmental disabilities are more likely to reveal what they know in response to a yes–no question format;
free recall is likely to produce less, if not inaccurate, information.208 Yet, because of their desire to please,
these people are also more likely than others to acquiesce in suggestions by authority figures.209
In light of the fact that by the time of the typical trial, a witness has been interviewed several times by
government officials and lawyers, and perhaps has been confronted by the alleged perpetrator as well, what are
the legal implications of these findings about suggestibility? Myers states that people “are not rendered
incompetent to serve as witnesses simply because they are sometimes misled by suggestion,” and implies that
generally heightened suggestibility should not be a bar to testimony.210 Christiansen is less sanguine, stating
that “when pretrial procedures have falsified a child’s memory, the child is not competent to testify to the
contents of that memory.” He goes on to suggest how the law should respond when suggestive procedures
have been used:

When a child has been the subject of potentially suggestive pretrial procedures the child’s competence as a witness cannot be determined
unless these procedures have been taken into account and any effects they may have had on the child’s memory have been weighed.
Competency hearing voir dire of the child alone does not satisfy this requirement. The child may not be able to separate out the various
interviews she has been through or to respond meaningfully to questions about them. The child may not have been at all aware of more
subtle forms of suggestion, such as the phrasing and repetition of questions. . . . Accordingly, competency determinations in such cases must
rely upon extrinsic evidence of the pretrial procedures as well, including, but not limited to, the testimony and records of those who
conducted the pretrial interviews and other procedures. . . . In some cases, it might also be appropriate to present expert testimony
independent of the testimony of the interviewers, to show why the procedures might or might not have affected the child’s memory.211

At the least, the research recounted earlier suggests that interviewing and evaluation of young children and
those with intellectual and other developmental disabilities must proceed cautiously. Specific guidelines along
these lines are taken up in § 7.07(c). As to the special issues that arise when the memory is allegedly
“repressed,” that topic is discussed in Chapter 15, which deals with abuse and neglect issues [see in particular

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§ 15.07(b)].

(3) Ability to Communicate

If an event cannot be communicated in a coherent, meaningful way, a witness’s observation and memory of it
are useless to the factfinder. Consequently, a person’s ability to conceptualize complex events and to order
them in space and time are of major legal importance. Furthermore, particular kinds of testimony may require
further specific competencies. Most notably, testimony about child sexual abuse may require verification of the
child’s comprehension of the meaning of sexual terms and behavior.
Decades ago, Piaget asserted that children up to the age of seven are unable to “decenter” from the most
obvious attributes of a stimulus; for instance, children may have difficulty in understanding time independent
of distance and speed (e.g., many believe that the object that travels the furthest has traveled for the longest
period of time), and thus may have difficulty in describing the chronology of events. Furthermore, Piaget
asserted, the basic egocentrism of young children may make it difficult for them to interpret the actions of
others outside a limited frame of reference.212 All this may affect a child’s ability to relate past experiences
accurately.
However, more recently Shaffer has concluded that “by age 5, children not only understand most of the
grammatical rules of their native tongue but are also constructing remarkably complex, adult like
sentences.”213 Brainerd, Trabasso, and others have demonstrated that preschoolers can be trained in
conversation skills,214 contrary to the Piagetian hypothesis that the necessary cognitive structures would not be
expected to have developed adequately. With respect to the egocentrism claim, Borke has found that children
three to four years old have the capacity to take the perspective of another,215 provided that the specific task is
a simple one and involves little use of language.216
In any event, young children’s immaturity of conceptualization may ultimately have little impact on their
competence to testify, for at least two reasons. First, modern courts do not seem overly concerned with these
problems. According to most courts, the fact that children use language differently, are occasionally
inconsistent, make factual mistakes, have difficulty conceptualizing time, or resort to nonverbal methods are
not bars per se to finding children competent to testify.217 The ultimate question is whether children’s
testimony is so unreliable that jurors would be “unduly” influenced by it. Thus, as long as the court thinks that
a jury (or, in a bench trial, the judge) can accurately perceive the objective reality of a child, the child’s
cognitive immaturity is of little significance.
Second, steps can be taken to increase the likelihood that a child’s testimony will be understandable. In the
typical abuse case, the child will appear incompetent if the examiner uses technical vocabulary rather than
slang or dolls or drawings. Monge et al.218 found that even ninth graders are often unfamiliar with “proper”
terms for sexual anatomy and physiology.219 On the other hand, there is evidence that by age four most
children are quite aware of sex differences and willing to speak freely about them, provided that questions are
direct and phrased in familiar language.220 Furthermore, several jurisdictions permit the presence of an
“interpreter” to help decipher a child’s statements, a “support person” who accompanies the child to the stand,
and “comfort items” (e.g., a teddy bear); some states also limit the extent to which lawyers may ask leading
questions that can confuse the child.221

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 (4) Moral Development: Distinguishing Truth and Falsity

If a witness can relate his or her experiences adequately, the principal concern is whether he or she will do so
truthfully. Indeed, under the common law, a witness’s ability to abide by the “oath” was the focal point of the
competence assessment; courts would routinely ask child witnesses, for instance, if they believed in God and
knew the consequences of telling a lie in court, and would base their competence decisions on the answers.222
Even today, the courts tend to gloss over observation, memory, and communication capacities and place
primary emphasis on the witness’s ability to differentiate truth from falsehood, to comprehend the duty to tell
the truth, and to understand the consequences of not fulfilling this duty.223 However, in contrast to the
common-law test, the modern witness need not confirm a belief in God. Most jurisdictions now give the
witness the choice of taking the oath (i.e., swearing to tell the truth “so help me God”) or simply affirming
that he or she will tell the truth.224 Several states even allow a child to testify without taking an oath if, in the
court’s discretion, the child does not understand it but is still likely to give probative testimony.225
When it comes to children, the courts’ focus on truth telling seems overblown. There is in fact little
correlation between age and truth telling; in other words, children are not more prone to lie than adults or to
misunderstand the concept of truth.226 Bussey found that “even preschoolers could differentiate between lies
and truthful statements about misdeeds [and] appreciated the naughtiness of lying.”227 Another study of
children ages four to six also found that most understood the difference between the truth and a lie.228
However, consistent with the research on suggestibility, these researchers did caution that “there may be a
small percentage of children whose definition of the truth may be influenced by parental direction or its
helpfulness to a friend.”229 Similar general findings have been made with respect to those with intellectual and
other developmental disabilities.230
A more likely developmental differentiation is in the reasons people give to justify behavior. For instance,
as children grow older, they become more sociocentric and oriented toward respect for persons individually231
or collectively.232 In contrast, younger children are likely to say that the oath is important on more “primitive”
grounds involving reification of rules233 and avoidance of punishment.234 This difference is unlikely to be
relevant in this context, however.235 Justice will be served if witnesses tell the truth, regardless of their reasons
for doing so, and most courts today recognize that fact.236 If there is some reason to ascertain a child’s
conceptualization of the duty to tell the truth, however, the yes–no and definition questions traditionally used
in the common-law voir dire of witnesses are inadequate measures. One of the philosophical underpinnings of
current cognitive-developmental theories of moral development is that a given behavior may be motivated by
vastly different levels of moral reasoning.237 Thus asking a child to explain the meaning of “truth,” “oath,” or
“God” will probably reveal more about the child’s intellectual development than about his or her propensity to
tell the truth.238

(5) Conclusions

Although there are some gaps in the relevant literature, the available research suggests that children as young
as five have the capacity to observe events, remember them accurately for moderately long periods (as long as
authority figures do not suggest alternative facts to them), and communicate about them with the

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understanding that a truthful report is important. Children under the age of five are likely to have more
difficulty with long-term memory, resisting suggestions, and effectively communicating their observations, but
with assistance even some three-year-olds may have the capacity to report their observations accurately and
understand the difference between a lie and the truth. The analogues with people who have intellectual and
other developmental disabilities are not precise, but the correlation between testimonial capacity and
intellectual ability is probably similar to that between testimonial capacity and age.
A possible caveat to these conclusions is that very little of the research on children’s testimonial accuracy
has replicated the stress likely to be associated with the courtroom setting. Research on this issue is mixed,
although the evidence points to the conclusion that conventional legal procedures are more likely to be stress-
inducing than informal environments,239 and that testimony is somewhat more likely to be incomplete in
traditional courtrooms.240 Concern over these effects has led some states to construct elaborate procedures for
taking children’s testimony in criminal proceedings, including use of screens and television monitors to
distance the witness from the defendant and the trappings of the courtroom.241 Yet these procedures are
seldom used,242 apparently because prosecutors perceive live testimony to be more persuasive,243 fear creating
appealable issues,244 and lack the necessary financial resources.245 In those (predominantly foreign) settings in
which the procedures are more commonly used, their efficacy is unclear, although it does appear that having
the option of such a procedure (whether or not it is chosen) alleviates stress.246
In any event, stress impairment at trial will normally not reach a level requiring a declaration of
incompetence. In view of the small percentage of cases that reach the courtroom,247 much more important
from the standpoint of obtaining the “facts” is avoiding stress, suggestion, and other accuracy-reducing aspects
of the investigation process—a subject covered in more detail below.

(c) Guidelines for Evaluation

It is important to recognize that evaluations of witnesses stand on a different footing than evaluations of
litigants (which are the usual focus of this book) do. Although litigants can be said to have placed their mental
state at issue by raising or defending a particular claim, witnesses are often “innocent bystanders” in the
quarrel. Thus courts have exhibited some reluctance to order psychological evaluations of witnesses, primarily
on privacy grounds [see § 7.07(d)(2) for elaboration of this point].248
Another preliminary issue clinicians must address is whether they have anything to add to what a trial
judge will be able to discern with respect to observational, memory, communicative, and moral capacities. At
least one commentator has stated that “the trial judge is nearly always capable of reaching a reasoned decision
on competence without [a mental health] evaluation.”249 Furthermore, as indicated earlier, the clinician
should remember that multiple interviews with witnesses like children may tend to distort the ultimate
testimony. On the other hand, mental health professionals may well have something useful to say about
testimonial competence in selected cases, particularly involving very young children and individuals with
intellectual disabilities or severe mental disorders.
If an evaluation is undertaken, it should focus on the four types of capacities described above. The witness’s
observational skills can be directly assessed, although if the event in question took place some time previously
when the witness was very young, information about such skills at the time of the event may have to be

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obtained from parents or other significant figures. Memory for events other than the one in question can be
tested by asking simple questions about both recent and long-ago events. Communicative skills can also be
ascertained by having the witness recount an event known to have happened and ascertaining his or her
capacity to describe correctly spatial, temporal, and other aspects of the event. Finally, the witness’s
understanding and commitment to truth telling can be assessed by asking in the abstract what it means to tell
the truth and then asking for examples. If more concrete information is needed, the witness can be asked
whether a statement such as “I am wearing glasses” is true or false, and then asked why it is one or the other.
In general, the techniques developed for children, noted earlier, should be transferable to evaluations of other
individuals of suspect testimonial capacity.
Although such an assessment would cover the basic criteria of testimonial competence, an evaluation
probably should not stop at this point if it is to be truly useful. A court would generally also benefit from
insight into whether the witness’s memory of the legally relevant event is “genuine” and is being accurately
recounted, or instead is the product of suggestion or fantasy. As already indicated, the difficulty is that by the
time the question of competence is raised, the potential witness is likely to have been asked about the event in
question numerous times. If it was perceived as a traumatic event, and/or if a family member is the defendant,
the witness may also have been bombarded with diverging interpretations of the event. Moreover, especially
with a child, when the event in question was one previously outside the witness’s experience or one that he or
she had not previously identified as deviant, the witness may be dependent upon others to provide meaning to
the experience.
Determining with certainty the origins of a witness’s memories in such situations may not be possible. But
it will obviously be useful in this regard to determine as precisely as possible when and with whom the child
has talked, and the content and process of these discussions. If depositions have already been taken, they
should be reviewed and compared with the interview notes. As Christiansen states in the passage quoted
above, a “child’s competence as a witness cannot be determined unless these procedures have been taken into
account and any effects they may have had on the child’s memory have been weighed.”250
The clinician must also try to avoid “creating” memories. One could avoid asking about the event entirely,
instead simply carrying out the third-party investigation described above. The problem with this approach is
that there may be no current version of the story with which to compare earlier versions; furthermore, useful
information about communication skills may be obtainable only by having the witness recount the event once
again. If such an account is viewed as necessary, Yuille et al. have described the following several-stage process
as a way of maximizing information while minimizing suggestion: building rapport; asking for a free narrative
account; and, only if the latter appears ineffective, proceeding to open-ended questions, specific yet
nonleading questions, and finally leading questions.251 If the final two steps can be avoided, however, they
should be. Young children are much more likely to indicate that they do not know the answers to “wh-”
questions (what, who, where, when, why, how) than to yes–no questions.252 Open-ended questions, if
preceded by getting the child to practice recounting everyday narratives, have positive effects both on the
amount of information reported253 and on the accuracy of recall.254
Although the fact-gathering and evaluation process just described can probably be accomplished by
competent nonprofessionals (and indeed is often carried out by judges and lawyers without assistance from
mental health professionals), there are other ways in which clinicians might be particularly helpful to the legal

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system in this context. First, when it is necessary to correct any misconceptions about typical behavior of
children at a given age, a clinician might present research of the type described in the previous discussion. In
this guise, the clinician or research psychologist is providing assistance similar to that provided by a
psychologist who describes general problems with eyewitness observation—what Monahan and Walker refer
to as “social framework evidence,” or context for determining past facts.255
Second, the clinician can consult with the attorneys seeking—or challenging—a prospective witness’s
testimony. In the former instance, the clinician may be helpful in preparing the witness for testimony—both
by desensitizing him or her to the court process, and by providing the attorney with advice on ways of
interviewing the witness (or, as may be allowed in some courts, conducting the questioning him- or herself).
As a consultant to the challenging attorney, the clinician may point out factors likely to affect the accuracy of
the witness’s testimony and ways of highlighting these factors on voir dire.
Third, and most controversial, the clinician might, at the behest of the lawyers or the court, attempt to
solidify a vulnerable witness’s memory. Saywitz tentatively suggests three methods designed to improve
“memory performance”: (1) “narrative elaboration,” in which witnesses “learn to organize the elements of an
event into five forensically relevant, theoretically driven categories (participants, setting, actions,
conversations/affect, and consequences)”; (2) “strategy training to resist misleading questions, including
practice, feedback, [and] self-monitoring”; and (3) the “cognitive interview,” which, as described by other
researchers,256 relies on mnemonics and other cognitive interventions to enhance the accuracy of recall and
testimony. These methods would presumably be used prior to trial, and in preparation for it. Further
discussion of the methods for evaluating children in abuse cases is found in § 15.06(b).257

(d) Assessment of Witness Credibility

As just discussed, an evaluation of a witness’s competence to testify addresses the person’s capacity to observe,
recall, and report events purportedly witnessed and to understand the oath. Expert testimony on credibility, on
the other hand, addresses the likelihood that statements made by a person who has been found competent to
testify are truthful. As a conceptual matter, the distinction between a competence evaluation and a credibility
assessment seems reasonably clear. As a practical matter, however, the line between the two evaluations is
likely to be blurred—as should become apparent from the following discussion, which examines the
evidentiary rules governing testimony on witness credibility and the extent to which a party may obtain an
evaluation for the purpose of preparing such testimony.

CASE STUDY 7.2

John is charged with buying cocaine from a government informant named George. The only evidence against John consists of George’s
testimony and the fact that cocaine was found in John’s car. John admits that George, whom he vaguely knows, asked him if he wanted to
buy cocaine when they met by chance at a shopping mall, but swears he turned George down flat. Noting that George had access to his car
(which he left unlocked), and that undercover informants get paid by the “sting,” John asserts that George framed him. You have been hired
by John’s lawyer to evaluate George’s credibility. From records John’s attorney has obtained from the prosecution during discovery, you
know that George has been involved in several cases involving similar facts. The records also reveal that he has an extensive criminal
history, involving minor drug crimes and assaults against others. Although you haven’t had access to George, John’s attorney locates an ex-
girlfriend of his, who tells you that George beat her, that he always laughed at her when she cried or told him to stop beating her, that he has

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had several girlfriends over the years whom he has also beaten, that he has never held a steady job or stayed in one location for long, and that
he constantly stole from his friends. At trial, you observe George testify and notice his eyes constantly shifting.

Questions: Would you be willing to testify to the effect that George may well be lying about John’s actions on the day of the offense? If
so, would you offer the factfinder any diagnostic information (e.g., that George has an antisocial personality)? Why or why not?

CASE STUDY 7.3

Susan claims that Jack raped her. Jack admits that he and Susan had intercourse, but claims it was consensual. He asserts that Susan has
fabricated the rape claim because he broke up with her the night the rape allegedly occurred. Jack’s attorney moves for an evaluation of
Susan’s mental state, averring that, according to Jack, Susan has been seeing a therapist for the past three years and has been treated with
lithium for two of those years. The attorney also subpoenas Susan’s psychiatric records and requests a deposition of the therapist.

Questions: Should the court grant the evaluation, subpoena, and deposition requests? How should Susan’s therapist respond? If the
court grants the evaluation request, how should the evaluator go about the evaluation? [This problem requires consideration of issues
discussed in Chapters 3 and 4 as well.]

(1) The Law on Expert Testimony about Witness Credibility

It is a basic premise of the Anglo-American legal system that the jury (or judge, in bench trials) is responsible
for assessing the credibility of witnesses.258 In an effort to avoid “usurping” this function of the jury, ethical
rules forbid both the judge and the lawyers from expressing an opinion in front of the jury about the
truthfulness of a witness.259 For some time, the law also significantly restricted the ability of a party to present
testimony about a witness’s credibility. Only statements about the witness’s “reputation” for truthfulness in the
community were permitted; the person describing the witness’s reputation was prohibited from expressing his
or her own opinion as to credibility, and furthermore was not permitted to describe specific acts of
untruthfulness or truthfulness unless queried about them during cross-examination.260 As Lilly noted, these
limitations were designed “to minimize the burdens of delay and distraction caused by the introduction of
secondary issues.”261 Furthermore, information about reputation was seen as more reliable than a personal
opinion about truthfulness, and more relevant and less prejudicial than descriptions of specific acts of
fabrication.
In 1975, however, the federal courts adopted Rule 608, which liberalized the approach to credibility
testimony. The rule, adopted by most states as well, provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after
the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (Emphasis added)

As the italicized language indicates, Rule 608 allows opinion testimony as well as reputation testimony.
Interestingly, the legislative history of the rule indicates that it was aimed solely at broadening the basis of lay
credibility testimony; as the commentary to the rule explained, “[w]hile the modern practice has purported to
exclude opinion, witnesses who testify to reputation seem in fact often to be giving their opinions, disguised
somewhat misleadingly as reputation.”262 Nonetheless, the wording of the rule obviously does not limit
opinion testimony about witness credibility to that provided by lay witnesses.
Whatever the correct reading of Rule 608, mental health testimony on credibility was for some time
admitted with some frequency. A relatively common position was expressed in United States v. Lindstrom,263

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where the Court of Appeals for the Eleventh Circuit noted that the kind of conditions that might be relevant
to impeaching a witness included “psychoses, most or all neuroses, defects in the structure of the nervous
system, mental deficiency, alcoholism, drug addiction, and psychopathic personality.”264
At the same time, such testimony is not routinely admitted. Indeed, the recent trend has been to insist that
experts should normally not be allowed to testify about credibility.265 There appear to be two reasons for this
stance. First, of course, a court might believe that such testimony is not based on specialized knowledge,
which is required of all expert testimony [see § 1.04(a)]. Second, even if a mental health professional’s
credibility testimony is thought to pass this initial test, the court may believe that its potential for confusing
the jury or usurping the jury’s traditional role as an assessor of credibility outweighs its probative value. In
many cases, this possibility might be curable with an instruction reminding the jury that judgments of
credibility are ultimately its responsibility. In other cases, however, the courts have concluded that these
procedural devices do not sufficiently protect against misleading the jury.
Thus, for instance, state courts in California adhere to a strict judicial policy disfavoring the use of expert
testimony of mental health professionals to impeach. In People v. Alcala,266 the California Supreme Court
explained that such testimony may be irrelevant or its basis not generally accepted; that a psychiatrist may not
be in any better position to evaluate credibility than a juror; and that such testimony may be distracting, time-
consuming, and costly. Several courts in other states have arrived at similar holdings.267
Nonetheless, expert testimony on witness credibility has been permitted in enough cases to discern at least
four areas in which courts in some jurisdictions may permit it. The first is when the witness is allegedly
experiencing significant symptoms of mental disorder, such as hallucinations.268 In these cases, expert
testimony assessing the credibility of the witness comes closest to the traditional role of assessing competence
to testify.
Second, courts historically allowed credibility testimony focused on the complainant in rape cases—the
situation raised in Case Study 7.3.269 This stance follows the view of many commentators, who have argued
that accusations of rape are particularly likely to be fabricated. As one put it, “the accusation is ‘easily to be
made and harder to be defended,’ the penalties are high, and often the charge incites sympathy for the
prosecutrix and prejudice for the defendant.”270 Because this reasoning appears to be based on outdated
attitudes amounting to sexism, testimony about the credibility of alleged rape victims became much less
common beginning in the 1980s.271 More recently, however, some lawyers have sought to admit expert
testimony regarding the presence (prosecutors) or absence (defense attorneys) of indicators of “rape trauma
syndrome” in the alleged victim, to bolster or challenge the accuser’s claims that nonconsensual sex took place
[see § 8.03(c)].272
Similar comments can be made about a third common area for expert testimony regarding the credibility of
a witness, having to do with the truthfulness of child witnesses in child abuse cases. Some courts have allowed
the prosecution to rebut attacks on a child witness’s credibility with expert testimony to the effect that
children never or seldom lie about abuse.273 Like testimony attacking the credibility of rape complaints,
testimony unequivocally supporting the credibility of child abuse complainants is based on outmoded
assumptions—in this case, the assumption that children are not able to, or simply do not, fabricate stories
about sexual abuse. Courts may be more reluctant to permit such testimony as they come to recognize that
children do lie, or at least, as suggested in § 7.07(b)(2), can be prompted to “remember” events that did not

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occur. This topic is discussed further in § 15.04(c)(4).
A final common type of credibility testimony has to do with the accuracy of eyewitnesses. Whereas the
foregoing types of credibility testimony usually address whether a witness is consciously deceiving the
factfinder, this testimony typically describes the extent to which unconscious factors may affect the accuracy of
a witness’s account. It seeks to build on the immense amount of research exploring the difficulties of
accurately perceiving and remembering an observed event. Beyond what has already been said in connection
with testimonial competence [see in particular § 7.07(b)(2)], a description of these studies is not attempted
here, as quite competent treatments exist elsewhere.274 It is sufficient for present purposes to note that the
research suggests a number of conclusions about eyewitness testimony that, if not counterintuitive, at least
may be helpful to a jury considering the credibility of an eyewitness. These include the findings that (1) people
tend to be less accurate observers in stressful situations; (2) people have difficulty making cross-racial
identifications; (3) people focus on weapons rather than faces; (4) the memory of a perception begins decaying
immediately; (5) gaps in memory are easily and often unconsciously replaced by preconceptions about what
must have happened, or by suggestions implanted by subsequent accounts, the police, or other external forces;
and as a result of all this, (6) there is no necessary correlation between the level of certainty evinced by the
eyewitness and accuracy.
Despite the helpfulness of such observations, several courts have clung to the view that juries are competent
to evaluate eyewitness testimony without expert assistance, or, somewhat contradictorily, that the jury will be
overly influenced by expert testimony on the topic.275 Many other courts have permitted such testimony,276
although some have reasonably limited the expert to social framework testimony (which involves a recitation
of the eyewitness accuracy research surrounding matters that apply to the case at hand), and have prohibited
the witness from offering an opinion about the eyewitness’s accuracy.277
Consistent with the latter view, our own view is that in all four of these situations, mental health
professionals should refrain from pronouncing whether they believe particular witnesses. The literature on lay
and expert ability to detect deception is not encouraging.278 Discussed in Chapter 3 [see in particular § 3.06]
are mental health professionals’ abilities to assess examinees’ response styles (e.g., malingering, disavowal,
presentation of positive attributes). But these abilities are anchored in specialized knowledge about mental
disorders and their presentation and in facility with psychological testing. Thus, although some clinicians can
offer expert opinions about whether an examinee is feigning psychotic symptoms or memory impairments,
they appear to have no specialized ability to determine whether an examinee is lying about matters such as
whether he or she graduated from high school, has never been arrested, has always respected his or her
marriage vows, and has never used illegal drugs. We believe that when the only reason an expert is on the
stand is to attack a witness’s motivations or honesty, there will typically be very little “science” involved. In
short, as a general matter, this type of credibility testimony about a witness is highly suspect.

(2) Legal Strictures on Evaluations of Credibility

The issue addressed here is whether there are, or should be, any restrictions on when a witness can be
compelled to undergo an evaluation for the purpose of assessing credibility.279 The relevant procedural rules
place significant limitations on when a party can force an evaluation of someone who is not a litigant. As

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explained in § 2.04(b), out of concern for witness privacy, the Federal Rules of Civil Procedure only allow
mental examinations of parties and only when there is good cause for such an evaluation.280 The rules do not
even mention examination of nonparties (i.e., witnesses other than the plaintiff, the defendant, or someone in
the plaintiff’s or defendant’s legal custody). Similarly, the Federal Rules of Criminal Procedure explicitly
contemplate only mental examinations of criminal defendants, and only on issues connected with competence
and mental state at the time of the offense.281
Nonetheless, courts often hold that they have inherent authority to order evaluations when necessary to
reach a just result. The question then becomes how a court should balance the competing interests. On the
one hand is the witness’s interest in maintaining privacy. On the other is the opposing party’s interest in
discovering relevant information. When, as in Case Studies 7.2 and 7.3, the party seeking records is a criminal
defendant, the latter interest rises to constitutional status, given the Sixth Amendment’s guarantees of the
rights to compulsory process and to confront accusers. The fulcrum on which these interests balance is
relevance: Only if the examination will yield relevant results should it be permitted. But how “relevant” must
the results be?
In civil cases, one might argue that if “good cause” is required to evaluate a party to a dispute, at least that
level of cause ought to be required before a third party can be subjected to such an intrusion. Although “good
cause” is an amorphous term, it is normally interpreted to mean something more than a possibility of finding
relevant evidence.282 Thus a good-cause showing in this context might require proof that the witness is
known to have some kind of impairment that has led to fabrication in the past; an even more stringent test
might require showing that there has been fabrication on similar issues. According to the Supreme Court, the
good-cause standard might also require a showing that no other means exist for assessing the witness’s
credibility.283
In criminal cases, on the other hand, a lesser showing might be permitted, at least when the defendant
requests such an evaluation (given the constitutional interests involved). However, some commentators have
argued that a lesser standard is not appropriate even for defendants, at least in sexual assault and child abuse
cases.284 Noting that parties rarely make, and courts rarely grant, motions for evaluations of witnesses in other
types of criminal cases (e.g., simple assault or battery), and that such evaluations can be particularly damaging
to vulnerable subjects such as women or children who have been abused, they claim that permitting routine
evaluations of such alleged victims is discriminatory—especially with the advent of rape shield laws, which
severely restrict defense inquiries into the personal histories of alleged victims in sexual assault cases.285 In
short, to the alleged victim’s privacy interest they add an equality interest, which would require the same
showing required in any other case. In this type of regime, courts should be willing to grant an evaluation
motion only upon a showing that the rape or abuse victim has impairments that have led (as opposed to might
lead) to fabrication about the precise type of event at issue. Although courts usually do not require this precise
showing, many do require the defendant to come forward with more than mere speculation that an
examination will provide useful impeachment evidence.286
In sum, courts should consider motions to compel an evaluation for purposes of assessing credibility with
caution. Indeed, the weak scientific basis for most such assessments, combined with the insult to privacy
interests, might lead to the conclusion that such evaluations should never be permitted, even when the witness
to be evaluated is a party to the litigation.

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 7.08. COMPETENCE TO BE EXECUTED AND TO PARTICIPATE IN AND WAIVE
APPEALS

CASE STUDY 7.4

Assume that you are a psychologist employed by the Department of Corrections. Gregory Brown is scheduled to be executed within 48
hours. You have heard via the prison grapevine that in the past two weeks Mr. Brown occasionally has lapsed into spells of wailing and
talking in tongues; he also is said to claim that his execution is “a conspiracy among the communists and fascists.” Having evaluated Mr.
Brown previously as part of the system’s classification program, you believe that he has borderline personality disorder and may
decompensate under stress. On the other hand, the correctional officers are virtually unanimous in the view that Mr. Brown is faking a
mental disorder. The consulting psychiatrist has supported the latter assessment. You are assigned to give another opinion about Mr.
Brown’s competence to be executed.

Questions: (1) Will you conduct the evaluation? Why or why not? (2) Assume that you decide to conduct the evaluation. How will you go
about it?

(a) The Legal Tests

The prohibition against executing those adjudged incompetent to understand what is being done to them has
its origins in the common law.287 Constitutionalizing this centuries-old rule, the Supreme Court’s 1986
decision in Ford v. Wainwright288 held that the Eighth Amendment (banning cruel and unusual punishment)
prohibits the execution of an “insane” person. While the Court did not formulate a definition of competence
to be executed, Justice Powell, in a concurring opinion, suggested that the Eighth Amendment “forbids the
execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer
it.” He also stated that the state could properly presume the prisoner’s competence at the time sentence is to
be carried out, and that it could require “a substantial threshold showing of insanity merely to trigger [a]
hearing process.”
Most states have adopted execution competence standards similar to Powell’s.289 In Florida, for instance, it
must be shown that the defendant understands the nature and effect of the death penalty, and why it is to be
imposed, before execution may take place.290 In contrast, the American Bar Association (ABA), in language
that has also been adopted by the American Psychiatric Association and the American Psychological
Association,291 has endorsed a broader standard, in a resolution calling for exemption from capital
punishment of any individual who “has a mental disorder or a disability that significantly impairs his or her
capacity to understand the nature and purpose of the punishment or to appreciate the reason for its
imposition.”292 The drafters of the ABA resolution reasoned that if, as many commentators have argued,293
the primary purpose of the competence-to-be-executed requirement is retribution, then the offender should
not merely have a shallow understanding of why he or she is being executed, but rather should internalize why
society has decided to impose the ultimate punishment.
In Panetti v. Quarterman,294 decided almost two decades after Ford, the Supreme Court appeared to adopt
this position. There the Court concluded that a person who meets Powell’s test is still incompetent if “his
awareness of the crime and punishment has little or no relation to the understanding of those concepts shared
by the community as a whole.” Thus the Court suggested that Panetti, who understood that he would die if
executed and also understood that the state’s stated reason for executing him was his conviction for capital

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murder, might still be incompetent if, due to mental disorder, he believed that the state’s real reason for
executing him had to do with his preaching activities. As the Court put it, “A prisoner’s awareness of the
State’s rationale for an execution is not the same as a rational understanding of it.”295 At the same time, the
Court made clear that its test was tied to serious mental disorder:

The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered
“normal,” or even “rational,” in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder
may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame
to others as to be considered, at least in the colloquial sense, to be out of touch with reality. . . . The beginning of doubt about competence in
[Panetti’s case] is not a misanthropic personality or an amoral character. It is a psychotic disorder.296

While Panetti fleshes out the definition of execution competence, Ford is still the leading case with respect
to the Court’s stance on the procedures for determining competence in that context. Five members of the
Court in Ford found Florida’s procedure (which relied on the governor’s assessment of clinical reports)
unconstitutional, on three grounds: (1) It provided no opportunity for the prisoner or his or her counsel to be
heard; (2) it did not permit challenge of the state-employed mental health professionals’ findings on the
competence issue; and (3) it left the final decision as to competence to the executive, rather than the judicial,
branch. However, the deciding vote on this issue, from Justice Powell, stated that in place of the Florida
procedure, the offender is merely entitled to a “fair hearing,” which includes the “opportunity to be heard.”297
Justice Marshall, who wrote the Court’s opinion, suggested that Florida create a competence procedure similar
to that used in the competence-to-stand-trial or civil commitment contexts, with a right to counsel, but he
was unable to obtain a majority on this point. Furthermore, several members of the Court cautioned against
requiring, as a constitutional ruling, a full-blown “sanity trial.” In Panetti, however, the Court appeared to
construe Justice Powell’s language to require, at the least, an entitlement to expert testimony, at state expense
if necessary.298 The ABA’s Criminal Justice Mental Health Standards recommend that the indigent prisoner
be able to obtain an independent evaluation of competence; that the prisoner be represented by counsel at the
competence hearing; and that the burden be on the prisoner to show incompetence by a preponderance-of-
the-evidence standard (thus, in effect, establishing a presumption of competence).299
The ABA/American Psychological Association/American Psychiatric Association resolution noted above
addresses two other closely related issues that arise in the death penalty context. The first, analogous to
competence to stand trial and competence to be sentenced, concerns competence to participate in
postconviction proceedings subsequent to appeal, such as habeas corpus proceedings. Although the courts
have made it clear that there is no constitutional right to competence in such proceedings (because they are
deemed “collateral” in nature),300 the resolution nonetheless calls for such a requirement and defines
competence as a “significant” impairment in the individual’s “capacity to understand or communicate
pertinent information, or otherwise assist counsel, in relation to specific claims bearing on the validity of his
conviction or sentence that cannot be fairly resolved without the prisoner’s participation.”301 The resolution
also provides that if the person who is incompetent in this sense is unrestorable, the death sentence should be
commuted, based on the rationale of Jackson v. Indiana [see § 6.04(a)]. In Ryan v. Gonzalez,302 however, the
Supreme Court rejected the latter position. Rather, according to the Court, “Where there is no reasonable
hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its
presumptively valid judgment.”303

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 The ABA/American Psychological Association/American Psychiatric Association resolution also proposes
a decisional competence rule governing the person who has “a mental disorder or disability that significantly
impairs his or her capacity to make a rational decision to forego or terminate post-conviction proceedings
available to challenge the validity of his conviction or sentence.”304 This language is meant to describe the so-
called “volunteer” death row inmate, who waives all appeals due to extreme depression or an irrational thought
process.305 In such cases, the standard provides, “the court shall permit a next friend acting on the prisoner’s
behalf to initiate or pursue available remedies to set aside the conviction or death sentence.”306 However, if
the individual waiving the postconviction process is competent to do so, the Supreme Court has made clear
(as it has in other decisional contexts) that the waiver is valid so long as it is “knowing and intelligent,”
meaning that the individual realizes the import of the decision.307

(b) Evaluation Issues

There are three competence issues that can arise in capital cases after conviction and sentence have been
imposed. First, the defense might object that the defendant is not competent to assist counsel in
postconviction proceedings. As noted above, that issue is in effect a competence-to-proceed question.
Second, as just discussed, occasionally a defendant may waive the right to postconviction hearings, against
counsel’s advice. Here the inquiry is primarily aimed at assessing the rationality of the decision, as in other
decisional competence cases. But the problematic voluntariness concept may also arise in this context.
Research indicates that a large number of so-called “volunteers” suffer from serious mental disorders
(particularly clinical depression), which arguably affect their motivation and willingness to consider their
options.308 As Brodsky has pointed out,309 evaluations of this type of decisional competence can raise
numerous ambiguities. For instance, Brodsky asks, how does one evaluate the competence and voluntariness
of a prisoner’s decision to forgo further appeals when the reason for doing so is that the prisoner wants to
appear “tough”? And how does one evaluate these issues when the person’s decision is based on the belief that
he or she cannot tolerate the thought of life without parole (especially when this decision may be based on
experience on death row, whereas a life sentence would usually be served in the general prison setting)?310
Although, as we have suggested throughout this volume, the clinician should provide information in such
situations and let the tribunal wrestle with the difficult moral issues, the courts are likely to press clinicians for
their views when the stakes are this high [see § 18.07].
The final competence issue, and the focus of what follows, is competence to be executed at the time the
death warrant is signed. The principal focus of this competence evaluation is the individual’s cognitive
functioning—specifically, whether the individual has a rational capacity to understand that he or she will be
put to death and why. After Panetti, inquiry must also be made into why the defendant thinks society has
sought and imposed the ultimate punishment.
Today there are at least two structured professional judgment tools, the use of which help ensure a
comprehensive inquiry into relevant capacities. Each instrument addresses three domains relevant to execution
competence: the inmate’s (1) “awareness of the punishment” (i.e., understanding that he or she will be
executed); (2) awareness of “why he or she is to suffer it” (i.e., understanding that the execution is occurring
because of the crime for which the offender was convicted); and (3) ability to assist counsel.

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 Ebert’s Competency to Be Executed Rating Instrument comprises 12 items that include 8 inquiries related
to functional legal abilities and 4 more clinical inquiries.311 The inquiries related to functional legal abilities
are straightforward. Regarding awareness of punishment, the clinician rates, for example, the examinee’s
“ability to identify what is about to happen” and “ability to understand the sentence of death.” Regarding why
the individual is to suffer the punishment, the clinician rates, for example, the examinee’s “ability to
understand the meaning of the term and concept of punishment” and “ability to understand the reason for the
punishment of death.” The four clinical inquiries relate to issues such as the examinee’s “ability to perceive
reality in the present” and “self-serving versus self-defeating motivation.” A significant limitation of Ebert’s
measure is that sample questions are not provided for all the identified areas. While answers to sample
questions such as “What is going to be your punishment for the crime you committed?” and “Tell me what
the death penalty means to you” are provided to help elicit information about “ability to understand the
sentence of death,” no such sample questions are provided in connection with the inquiry regarding “ability to
work with attorney.”
The Interview Checklist for Evaluations of Competency for Execution addresses the same domains that
Ebert’s tool addressed, but in substantially greater depth.312 The basic outline of this instrument, which can
be conceptualized as a structured professional judgment tool as well, is shown in Table 7.1. Parts I and II of
this checklist direct the examiner’s attention to the examinee’s understanding of the reasons for punishment
and awareness of the specific punishment that he or she is to receive. Each of these parts has several
subheadings (eight and five, respectively). Particularly helpful is that, for each subheading, sample inquiries
are provided for use with the examinee, the purpose of which are to facilitate discussion of the inmate’s
understanding of these issues. Although Part III (nine subheadings) covers some of the same issues that are
included in Parts I and II, it focuses the examiner’s attention on the examinee’s abilities to appreciate and
reason about the pending sentence and reasons for it, thus making it consistent with the Court’s reasoning in
Panetti and with the broader competence construct incorporated in other modern competence assessment
tools.313 As discussed in more detail in § 6.07(c), the evaluation of appreciation and reasoning (rationality) is
important in distinguishing between a shallow and potentially abstract understanding of an issue from one
that reflects an appreciation of one’s own personal situation and/or is colored by implausible or delusional
beliefs. Finally, Part IV (ten subheadings) facilitates a systematic inquiry of capacities having to do with
relating to and communicating with counsel, mainly around decisional competence issues (i.e., appeals).

TABLE 7.1. Structure of the Interview Checklist for Evaluations of Competency for Execution
I. Understanding of the reasons for punishment
i. Reasons why in prison (inquiries a–d)
ii. Place of residence within the prison (inquiries a–b)
iii. Conviction information (inquiries a–d)
iv. Explanation of the criminal act (inquiries a–c)
v. Victim identifying information (inquiries a–d)
vi. Perceived justice of conviction (inquiries a–c)
vii. Reasons other people are punished for same offense (inquiries a–c)
viii. Self-identified unique understandings of offense and trial (inquiries a–c)

II. Understanding of the punishment

i. Sentence for the crime—specifically (inquiry a)

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 ii. Meaning of a sentence of death (inquiry a)
iii. Meaning when a person is dead (inquiries a–c)
iv. Specific understanding about death from execution (inquiries a–c)
v. Reasons for execution (inquiries a–c)

III. Ability to appreciate and reason in addition to simple factual understanding

i. Appreciation of the personal importance of this punishment (inquiries a–b)

ii. Appreciation of the personal meaning of death (inquiries a–c)
iii. Rationality/reasoning regarding the physical changes during and after execution (inquiries a–b)
iv. Rationality/reasoning regarding the mental changes during and after execution (inquiries a–b)
v. Rationality/reasoning regarding other personal changes during and after execution (inquiry a)
vi. Rationality/reasoning regarding beliefs in invulnerability (inquiries a–b)
vii. Inappropriate affect about execution associated with rationality/reasoning (inquiries a–c)
viii. Rationality/reasoning regarding acceptance or eagerness for execution (inquiries a–b)
ix. Rationality/reasoning regarding factors associated with beliefs that person should not be executed (inquiries a–b)

IV. Ability to assist attorney

i. Identity of attorney (inquiries a–d)
ii. Time with attorney (inquiries a–d)
iii. Trust of attorney (inquiries a–e)
iv. Awareness of execution date (if any) or likely date (inquiries a–c)
v. Status of appeals (inquiries a–c)
vi. What attorney seeks to accomplish through appeals (inquiries a–b)
vii. How appeals will be processed and assessed (inquiries a–b)
viii. Actual substance of appeals (inquiries a–b)
ix. Important content withheld from attorney (inquiries a–c)
x. Pathological reasons for not planning or discussing appeals (inquiries a–c)

Note. Adapted from Patricia A. Zapf et al., Assessment of Competency for Execution: Professional Guidelines and an Evaluation
Checklist, 21 BEHAV. SCI. & L. 103 (2003). Copyright 2003 by John Wiley & Sons, Ltd. Adapted by permission.

Neither of the tools described above yields a quantitative index of capacities, nor should either tool do so.
For instance, Ebert’s measure records clinicians’ global impressions of degree of impairment/incapacity on a 5-
point scale ranging from 0 (no incapacity) to 4 (severe incapacity); it includes no actuarial formula for
combining ratings, or norms for interpreting the degree of (in)competence. Similarly, there is no explicit
rating scale for the Interview Checklist in Table 7.1, although clinicians will probably use some scale like the
one associated with Ebert’s tool to register clinical impressions. These limitations notwithstanding, the use of
measures such as these help identify the content of the competence-for-execution clinical interview and the
bases for judgments about the extent of an inmate’s impairments.
Of course, use of one of these measures alone should not constitute the entire evaluation of competence to
be executed. Rather, their use would be one element of a broader clinical inquiry. Commentators disagree,
however, about the nature of the full assessment. Ebert, for example, argues for the administration of a
comprehensive battery of psychological tests in all execution competence evaluations, and he sets out a lengthy
and uncritical list of measures for evaluators to consider.314 He also recommends gathering extensive
background information, including remote historical information (e.g., marital and relationship history,
educational and employment history, military background).315 For reasons outlined in Chapter 3, we think
that this blunderbuss approach will usually be unwarranted. Conventional psychological testing and much of
the historical information, including many of the records Ebert refers to, are not likely to be informative

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regarding current functional legal abilities. Historical information, if useful at all, is only likely to be of value
in clarifying the nature, chronicity, and trajectory of any impairments that the examinee may be experiencing.
Testing, if conducted at all, should be focused on specific clinical hypotheses; a blanket administration of a
battery of tests has little place in any forensic assessment.
Given the present-state focus of competence-for-execution evaluations and, in our view, the primacy of
assessing legal functioning, we recommend that a clinician focus on gathering recent information that is most
likely to be informative about an inmate’s current functioning.316 Of course, the evaluation should include an
interview with the inmate, perhaps following one of the structured formats. The interview should be designed
to assess current emotional, behavioral, and cognitive functioning, so that the cause(s) of any observed deficits
in psycholegal capacities can be identified. We concur with the suggestion of Heilbrun317 and others318 that
multiple contacts with the inmate may be of value in assessing the stability of his or her mental status.
Similarly, examiners should attempt to arrange for sessions to be conducted in settings that facilitate valid
clinical assessment. At least one court has imposed such conditions on the competence evaluation in the death
penalty situation. In Hays v. Murphy,319 the Tenth Circuit required that evaluations be performed somewhere
other than on death row and include “the type of extended close observation in a proper setting which is
generally recognized as essential for all psychiatric and psychological evaluations.”
Other data sources might include health care records and collateral interviews with those who have
observed the inmate’s behavior (e.g., prison staff members, family members). Psychological and medical tests
should only be employed if the situation warrants specific measures (e.g., assessment of response style; tests
that gain insight into the examinee’s current emotional, behavioral, and cognitive functioning).320
Examiners should recognize that sensitive ethical issues arise any time they perform an evaluation that
could lead to an inmate’s execution. Some argue that mental health professionals should play only a limited
role in such evaluations. For instance, one board of the American Psychological Association has opposed the
participation of psychologists in “routine certification of competency for execution.” In the board’s view,
“[j]ustification for participation in such evaluations should be based solely on the possibility of bringing new
information which might change the legal verdict and subsequent death sentence.”321
We think that a more contextual stance is in order. As discussed in § 4.05(b)(1), mental health
professionals should determine before conducting an evaluation whether their beliefs compromise their ability
to conduct a valid and objective assessment. Under this standard, clinicians who find the death penalty
morally repugnant may decide that they cannot participate in any evaluations connected with capital cases, not
just evaluations of execution competence, simply because their biases are likely to affect their work.322 Or a
clinician may distinguish between capital-case evaluations of competence to stand trial and insanity on the one
hand, and competence-to-be-executed evaluations on the other, on the ground that the latter are closer in
time to the pending execution, or more closely connected to the issue of whether or not execution will occur.
Finally, a clinician may decide that objectivity can be maintained despite the high stakes involved in capital
cases; in this instance, involvement in a competence-to-be-executed evaluation would be ethical. Bonnie has
stated:

Although pleas of conscience (and likely bias, as a result) should be respected, I see no categorical objection to execution competency
assessments. Indeed, in light of the fact that a significant proportion of death sentences are eventually set aside, enhanced sensitivity to this
issue by correctional authorities actually could be beneficial to the interests of condemned prisoners as a class. Prisoners living for prolonged

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 periods under the shadow of the executioner are at high risk for developing emotional and behavioral problems, especially in light of their
tortured emotional histories. To the extent that prospective concern about execution competency provides an incentive for correctional
authorities to assure that adequate clinical resources are available for ongoing monitoring and treatment, it might enhance the opportunities
for healing.323

(c) Treatment Issues

As this last statement suggests, treatment of the person on death row involves another difficult ethical
decision. Although this topic is technically beyond the scope of this book, a few words about it are useful
because of its relationship to the evaluation issue. The National Medical Association (NMA) has adopted the
position that physicians should always provide needed treatment, regardless of prisoners’ legal situations.324
Bonnie, on the other hand, would condition treatment on whether prisoners state they want treatment at a
time that they are competent to make that decision.325 If so, Bonnie believes, along with the NMA, that
clinicians are ethically obligated to provide treatment, even if it will lead to the prisoner’s restoration of
competence to be executed. On the other hand, if the inmate’s desires are unclear, the inmate competently
refuses treatment, or the inmate is incompetent to make treatment decisions, Bonnie believes, contrary to the
NMA, that treatment is unethical. In these situations, according to Bonnie, “the clinician would be serving a
role that is ethically indistinguishable from [that of] the physician who administers the lethal injection of
barbiturates.”326
Of course, if all clinicians accepted this latter ethical tenet, it would be impossible to execute many of those
adjudicated incompetent to be executed, or at least many of those whose competence can only be restored
through psychiatric treatment. One response to this dilemma would be to commute the death sentences of
these people;327 the problem with this approach is that it might increase the incentive on the part of prisoners
and their attorneys to “manufacture” incompetence as a last-line defense against the death penalty. Another
“solution” would be to allow execution of incompetent persons, but Ford has apparently foreclosed that
option.
In this regard, the litigation in Perry v. Louisiana is of interest.328 After sentencing Perry to death, the trial
court found him incompetent to be executed unless maintained on medication, and ordered that he be forcibly
medicated to ensure his competence. After the state appellate courts affirmed the trial court’s order, Perry
sought relief from the United States Supreme Court. That court vacated the trial court order and remanded
for reconsideration in light of its decision in Washington v. Harper,329 which was decided after the state court
litigation in Perry and allowed forcible medication considered “medically appropriate” for a prisoner who was
dangerous to others [see § 11.03(b)].
On remand, the Louisiana Supreme Court concluded—somewhat surprisingly, given the decision in
Harper and the previous rulings of the Louisiana courts—that forcibly medicating individuals to render them
competent to be executed is impermissible. It distinguished Harper by concluding that forcing medications
merely “to facilitate . . . execution does not constitute medical treatment but is antithetical to the basic
principles of the healing arts.”330 Ultimately, however, the court’s analysis of Harper was unnecessary to its
decision, because the court found two independent state law bases for its holding. First, it found that
medicating an objecting individual to facilitate execution constituted cruel and unusual punishment under the
state constitution, because it “fails to measurably contribute to the social goals of capital punishment,” “would

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add severity and indignity to the prisoner’s punishment beyond that required for the mere extinguishment of
life,” and “is apt to be administered erroneously, arbitrarily or capriciously.”331 Second, the court held that
involuntary medication in such circumstances violated the right to privacy guaranteed in the Louisiana
Constitution, because, given the inhumaneness of the situation, the state’s interest in executing such an
individual was not compelling. If other courts follow the lead of the Louisiana Supreme Court, the treatment
dilemma posed above would disappear.
A contrary result was reached in Singleton v. Norris.332 In this case, the Eighth Circuit Court of Appeals
held that because the government’s interest in carrying out a lawfully imposed death sentence is “essential,”
involuntary medication is permissible when no less intrusive way of fulfilling this interest exists, and when the
state can show by clear and convincing evidence that the medication is likely to render the person competent,
has no serious side effects, and is in the person’s “best medical interests.” To the argument that medicating a
death row inmate to permit his or her execution is not in his or her “medical interests,” the court responded
that at least when “eligibility for execution is the only unwanted consequence of the medication,” the practice
is permissible because the inmate’s “due process interests in life and liberty . . . have been foreclosed by the
lawfully imposed sentence of execution.”
Since Perry and Singleton, the Supreme Court has decided Sell v. United States,333 which, as recounted in §
6.04(d), held that defendants found incompetent to stand trial have a right to refuse medication, at least when
(1) they are not dangerous, (2) they are competent to make treatment decisions, and (3) the charges against
them are not serious. Sell also emphasized, as did Singleton, that involuntary medication is never permissible
unless it is medically appropriate and tailored to meet the state’s interest. Sell may require the Eighth Circuit
to rethink its position. On the other hand, the third exception may justify the holding in Singleton.
The ABA resolution noted above in § 7.08(b) takes a nuanced approach to the medication issue.334 If the
inmate is found to be incompetent to be executed “after challenges to the validity of the conviction and death
sentence have been exhausted and execution has been scheduled,” the death sentence is to be commuted. In
other words, involuntary medication is not permitted. Before execution has been scheduled, on the other
hand, if the individual becomes unable to participate in his or her defense or makes an irrational decision to
forgo postconviction appeals (the other two types of incompetence identified by the provision, which have also
been discussed above), then involuntary medication may be permissible if it is medically appropriate and meets
Sell’s other requirements. In these two situations, the drafters reasoned, medication can facilitate challenges to
the death sentence and underlying conviction, and the mental health professional is not placed in as vulnerable
a position ethically. When the death warrant has been signed, in contrast, the sole purpose of the treatment is
to ensure execution, which makes the treating professional akin to an accomplice to the punishment.

BIBLIOGRAPHY

Stanley L. Brodsky et al., The Last Competency: An Examination of the Legal, Ethical, and Professional Ambiguities Regarding Evaluations of
Competence for Execution, 1 JOURNAL OF FORENSIC PSYCHOLOGY PRACTICE 1 (2001).
Morgan Cloud et al., Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 UNIVERSITY OF CHICAGO
LAW REVIEW 495 (2002).
Edwards v. Indiana, 554 U.S. 164 (2008) (competence to represent self).
Frendak v. United States, 408 A.2d 364 (D.C. 1975) (competence to waive insanity defense).
Livia L. Gilstrap, Child Witnesses: Common Ground and Controversies in the Scientific Community, 32 WILLIAM MITCHELL LAW REVIEW 59

264
 (2005).
Godinez v. Moran, 509 U.S. 389 (1993) (competence to plead guilty and waive attorney).
THOMAS GRISSO, JUVENILES’ WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE (2d ed. 2012).
GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATION AND CONFESSIONS (2003).
Lea Johnston, Representational Competence: Defining the Limits of Self-Representation at Trial, 86 NOTRE DAME LAW REVIEW 523 (2011).
Dorothy Kagehiro, Psychological Research on the Fourth Amendment, 1 PSYCHOLOGICAL SCIENCE 187 (1990).
Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUMAN BEHAVIOR 3 (2010).
MEMORY AND TESTIMONY IN THE CHILD WITNESS (Maria Zaragoza et al. eds., 1995).
Panetti v. Quarterman, 551 U.S. 930 (2007).
Richard Rogers, Jill E. Rogstad & Nathan D. Gillard, “Everyone Knows Their Miranda Rights”: Implicit Assumptions and Countervailing
Evidence, 16 PSYCHOLOGY, PUBLIC POLICY, & LAW 300 (2010).
Christopher Slobogin, Mental Illness and Self-Representation: Faretta, Godinez, and Edwards, 7 OHIO STATE JOURNAL OF CRIMINAL LAW 391
(2009).
CHARLES WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE, chs. 12, 16, 26, & 31 (6th ed. 2015) (consent searches,
confessions, guilty pleas, and counsel).
Patricia A. Zapf et al., Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist, 21 BEHAVIORAL SCIENCES
& THE LAW 103 (2003).

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CHAPTER 8

Mental State at the Time of the Offense

8.01. INTRODUCTION

This chapter discusses a number of defenses that criminal defendants may raise at the guilt determination
phase of the criminal process. Specifically, it addresses the insanity defense; the “automatism” defense; the
“diminished capacity” defense; the so-called “character” defenses; “affirmative” defenses, such as self-defense,
provocation, duress, and entrapment; defenses associated with psychoactive substance use; and the “guilty but
mentally ill” verdict. Although each of these defenses has different attributes, they all have one thing in
common: When they are invoked, they require an investigation of the defendant’s “mental state at the time of
the offense” (MSO)—a reconstruction of the defendant’s thought processes and behavior before and during
the alleged crime.
Not all states recognize each of these defenses (for instance, as detailed below, fewer than half recognize
the diminished capacity defense, and at least four states do not have an insanity defense). Moreover, each
defense comes in various guises (e.g., there are at least five different insanity tests currently in use among the
states). To ensure that the proper legal question is addressed in each case, the lawyer and the mental health
professional need to understand the various MSO doctrines.
This chapter outlines for each defense the majority approach and the most significant competing
approaches. It also provides some guidance regarding the clinical syndromes most likely to form the bases for
these defenses. Finally, it provides suggestions on the best way to evaluate and formulate an opinion about a
person considering an MSO defense.

CASE STUDY 8.1

William Davidson, a longshoreman, shot and killed his foreman, Joseph O’Leary, at about 2:30 A.M. Between 6:00 and 11:00 the night
before, Davidson had consumed well over a fifth of a gallon of sloe gin while at work on the pier. Around midnight, O’Leary told Davidson
that he was drunk and told him to go home. They argued, Davidson spat in O’Leary’s face, and O’Leary knocked Davidson down and
kicked him. Davidson was taken to the hospital, where he received five stitches near his eye. When discharged from the hospital at 1:45
A.M., he went back to the pier, insisting that he wanted to work, but O’Leary told him to go home. Davidson said, “I’m going to take care of

you, you bastard.” He drove to his home, got a .25 caliber automatic pistol containing two bullets, drove back to the pier, and arrived there
about 30 minutes after he had been sent home. In the meantime, O’Leary had alerted the police, who were at the pier as well, near O’Leary.
Nonetheless, when Davidson found O’Leary, he shot and killed him. The officers subdued Davidson after a brief struggle. Shortly
thereafter, Davidson told the authorities that O’Leary was “looking at me, smiling, so I just let him have it.” The rest of his recollection of
that night was hazy.
An expert psychiatrist reported that for 20 years, Davidson had experienced trances during which he heard voices and experienced visions
—particularly of devils in disguise committing abnormal sexual acts, sometimes upon Davidson. Davidson recognized that these
experiences were “not real,” but believed that they were forced upon him by the devil. Furthermore, a year before the shooting, Davidson
(who was 56 years of age at the time of trial) became concerned about loss of sexual power. The expert concluded, “With this concern, his
sexual hallucinations occurred with increased frequency, and his ability in his work became increasingly important to him as a proof of

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manhood. On the night of the shooting, O’Leary’s statement that Davidson was drunk and should leave his work was like telling the
defendant ‘You’re not a man, you’re impotent, you’re a sexual pervert.’ ” The expert stated that Davidson told him O’Leary then called
Davidson an epithet indicating sexual perversion. Davidson continued that until the time of the shooting, “That is all I was thinking about
all of this time is to shoot O’Leary. I forgot about my family, I forgot about God’s laws and humans’ laws and everything else. The only
thing was to get that guy, get that guy, get that guy, like a hammer in the head.”
At this point, according to the expert, “Davidson was confronted with the imminent possibility of complete loss of his sanity. The
strength of this obsession was proportioned not to the reality of the danger, but to the danger of the insanity. For this man, to go insane
would mean to be permanently in the world of these visions and under the influence of the devil. An individual in this state of crisis will do
anything to avoid the threatened insanity, and it’s this element that lent strength to his compulsive behavior, so that he could think of
nothing else but to get O’Leary.”‘

Questions: As a mental health professional, what could you say about the role of mental illness in this case? The role of intoxication?
Was Davidson’s impairment cognitive, volitional, or both? What more would you want to know to answer these questions? Is the testimony
from the expert plausible? Assuming it to be admissible under the rules of evidence, would it nonetheless be permissible to exclude it as a
constitutional matter? As a lawyer, would you assert an insanity defense, or some other type of defense? [The case study is based on People v.
Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959), which recognized that the expert’s testimony could be relevant to a “diminished capacity”
defense, although a more accurate term might be “diminished responsibility” [§ 8.03]].

CASE STUDY 8.2

Andrea Yates drowned all five of her children, one by one, in the bathtub. She then called 911 and requested police assistance. During her
interrogation, she said she killed her children because she had not been a “good mother.” She later stated that she believed that, had she not
killed her children, they would have suffered eternal damnation and would have been “tormented by Satan.” These beliefs could be traced
back to the period after her third child was born, when Andrea and her husband, Rusty, began following an itinerant preacher, whose fire-
and-brimstone sermons made her worried that she was not protecting her children from sinful influences. Four months after her fourth
child was born, Andrea attempted suicide and told doctors she had seen at least ten visions over a period of days. Three weeks later she
again tried to commit suicide, was admitted to a hospital with a diagnosis of postpartum depression, and was prescribed antipsychotic and
antidepressant medications. When released after 19 days, she was told that having another child would trigger a severe relapse. But Andrea
stopped taking her medications (despite hearing voices that, she told a friend, told her to do things she was unable to describe), and gave
birth to a fifth child. Within a few months she stopped eating, drinking, and speaking. She was again prescribed antidepressant and
antipsychotic medications, but doctors took her off the latter medication three weeks before the crime, and she stopped taking all
medications once again. Because Andrea was able to carry out only cursory tasks like making the children’s lunches, her mother and Rusty
helped with the children every day, except for one hour in the morning after Rusty went to work. Andrea killed her children during that
hour.

Questions: As a mental health professional, would you say that Andrea Yates’s impairment was cognitive, volitional, or both? What
“caused” her crimes? Did she have the mens rea for murder? As a lawyer, what type of defense(s) would you raise? How would you respond to
the argument that she was responsible for the deaths because she had the fifth child and went off her medications? [Andrea Yates was
convicted and sentenced to life imprisonment at her first trial. After that verdict was overturned, she was found not guilty by reason of
insanity at her second trial.]

CASE STUDY 8.3

Alice Sorenson killed her husband, J.D. She had been beaten by J.D. for years. He would demand that she bark like a dog, eat dog or cat
food, and sleep on the cold concrete floor. If she refused, he would hit her with whatever was handy—his fist, a flyswatter, a baseball bat, a
shoe, an ashtray—all of which left scars up and down her body. Two days before the shooting, J.D. took Alice to a truck stop and forced her
to prostitute herself, something he had done on numerous other occasions. He also assaulted her, for which he was arrested. Upon
returning from jail the next day, he beat her continually, and Alice, apparently in distress, took an overdose of nerve pills. When emergency
personnel arrived to treat her, J.D. tried to interfere, stating, “Let the bitch die. . . . She ain’t nothing but a dog. She don’t deserve to live.”
The next day, the day of the shooting, J.D. again beat Alice all day, kicking her in the head, smashing food in her face, and putting a
cigarette out on her chest. When he decided to take a nap, Alice took her daughter’s baby, whom she had been babysitting, to her mother’s
house so that J.D. would not be awakened by the crying. At her mother’s house, Alice picked up a gun; when she returned home, she shot
her husband while he lay sleeping.

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 Questions: As a mental health professional, how would you describe Alice’s mental condition at the time of the offense? Do you have any
expertise that can assist the factfinder in a case like this? As a lawyer, what type of defense might you assert in a case like this? [The case
study is based on State v. Norman, 366 S.E.2d 586 (N.C. Ct. App. 1988), rev’d, 378 S.E.2d (1989), where the defendant’s self-defense
argument was unsuccessful.]

8.02. THE INSANITY DEFENSE

The bulk of this chapter focuses on the insanity defense, because it is the most commonly invoked doctrine
relating to MSO. The premise of the defense is as follows: Most criminal offenders choose to commit crime
for rational reasons and of their own “free will,” and are therefore deserving of punishment. Some mentally
disturbed offenders, however, are so irrational in their behavior, or so unable to control it—that is, so unlike
“us”—that we feel uncomfortable imposing criminal liability on them. To put the rationale in terms of
criminal law doctrine, these individuals are not properly punishable as criminals, because the principal grounds
for such punishment—retribution and deterrence—are not applicable to them. Society should not feel
vengeful toward persons who, at the time of the offense, “did not know what they were doing” or “could not
help themselves”; such individuals should be treated with compassion, not branded as criminals. Nor can
society hope either to deter such persons from committing other crimes or to deter others like them from
crime, because “crazy” people are oblivious to the constraints of the real world. Such people may need
treatment and perhaps restraint, but these two objectives are most properly met through hospitalization, not
imprisonment.
The defense of insanity is probably the most controversial issue in all of criminal law. Thousands of pages
have been written debating the value of a defense that provides an excuse for antisocial actions.1 For some
time, commentators have argued that the theoretical assumptions underlying the defense are unfounded—that
very few, if any, individuals are completely undeterrable by or undeserving of punishment.2 From a practical
viewpoint, some contend that treatment of dangerous mentally ill persons can be better accomplished through
alternative methods,3 that the terms used to define “insanity” are unconscionably yet inevitably vague,4 and
that mental health professionals are unable to provide meaningful testimony on the issue.5 Other
commentators, the clear majority, have just as vigorously rejected the abolitionist stance.6 They see the defense
not only as a moral necessity for the sake of the individual, but as the sole vehicle society possesses for publicly
debating the meaning of “criminal responsibility”—for examining the assumption, basic to the criminal law
and our notions of personhood generally, that by far the majority of those who commit crime could have acted
otherwise.7 To proponents of the defense, those criminal defendants who are afflicted by severe mental
disorder at the time of the offense—and who are therefore intuitively, if not demonstrably, less able to control
or appreciate their behavior—must be afforded the opportunity to argue their lack of blameworthiness, or the
moral integrity of the law will suffer.8

(a) Common Misperceptions about the Defense

While academics tend to support the insanity defense, the public has often expressed dissatisfaction with it.9
Popular opinion about the insanity plea appears to be based largely on impressions gained from the extensive
media coverage that inevitably accompanies insanity trials such as that of John Hinckley, charged with

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attempting to assassinate President Reagan; Lorena Bobbitt, charged with cutting off her husband’s penis;
Jeffrey Dahmer, charged with killing 13 people; and Andrea Yates, charged with drowning her five children.
(Hinckley and Bobbitt were acquitted by reason of insanity; Dahmer was convicted; and Yates [as noted in
Case Study 8.2] was initially convicted, had that verdict reversed, and was acquitted on retrial.) In one sense,
this publicity may be desirable; it tends to encourage public examination of the moral premises underlying the
criminal justice system. But it also appears to have given the public a somewhat distorted view of the nature of
the defense. For example, many appear to believe that (1) a large number of defendants use the defense, and
that (2) most are successful (in part because defendants and their expert witnesses are able to deceive gullible
juries). It also seems to be commonly assumed that (3) those acquitted by reason of insanity are released upon
acquittal or shortly thereafter, even though (4) they are extremely dangerous.10 These perceptions, if accurate,
would understandably lead to antipathy toward the defense. Yet the available data indicate that they appear to
be largely unsupportable.
Numerous studies have found insanity plea rates in felony cases to be extremely low, ranging from 0.1 to
0.5%.11 A multistate study by Steadman et al., examining insanity pleas from the late 1970s through the mid-
1980s, found slightly higher rates in some states but for the most part replicated earlier studies.12 Thus
available information, much of it gathered during the pre- Hinckley period when the defense was in its
heyday, appears to counter the belief that the plea is an everyday occurrence in the criminal courts.13 One
reason for the low plea rates is that mental health professionals are seldom willing to support a defense, with
most studies finding that forensic evaluators conclude a defendant is insane less than 15% of the time.14 These
data belie the claim that mental health professionals are “fuzzy apologists for criminals.”15
Data on the success rate of the insanity defense are less uniform. A contested insanity claim prevails
between 10 and 60% of the time, depending on the state and the period investigated.16 But Steadman, Pantle,
and Pasewark have estimated that, nationally, the defense wins only one out of every four times it is raised.17
Furthermore, the absolute number of individuals found not guilty by reason of insanity (NGRI) is very low.
For instance, nationwide statistics in 1978, before major reforms to the insanity defense reduced its scope in
most states, indicate that only 8.1% (or 1,625) of the close to 20,000 admissions to mental hospitals in the
United States were defendants found NGRI, representing fewer than 0.3% of all felony cases for that year.18
Perhaps most important, in most jurisdictions well over 70% of these insanity acquittals resulted from a
plea-bargaining or quasi-plea-bargaining arrangement rather than a full-fledged jury trial.19 In these cases, the
prosecution agreed that the defendants were so “crazy” they should be hospitalized rather than convicted and
imprisoned. Thus the number of cases in which there is any potential for a defendant somehow to fool a trial
jury is extremely small to begin with. Even if there is some abuse of the defense in such trials [see, e.g., §§
8.02(c)(1) & (2)], it would seem that the total number of “valid” acquittals far outweighs the number of
“invalid” ones. This point is substantiated by evidence that most insanity acquittees (60–90%) continue to be
diagnosed as “psychotic after acquittal” [see § 8.02(c)].20
The not illogical assumption that defendants found “not guilty” by reason of insanity are treated like the
typical acquitted defendant and permitted to “walk” is also wrong. One commentator who surveyed the laws
of the 50 states at the time of the Hinckley verdict concluded that “[a]n acquittal by reason of insanity is rarely
a ticket to freedom.”21 Since that verdict, commitment laws in many states have been tightened even
further.22 Many states require automatic commitment of those acquitted on insanity grounds, usually for a

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minimum averaging 60 days. Those states that do not have automatic commitment permit confinement for an
initial period of up to a year upon relatively meager evidence of mental illness, dangerousness, or both. As §
10.10(c) discusses in more detail, the statutory criteria for releasing a person found NGRI after this initial
detention period (which typically focus on the individual’s mental illness and potential for endangering others)
are more restrictive on their face or “as applied” than similar criteria used in the civil commitment process.
Moreover, the release of individuals found NGRI usually depends on judicial approval, in contrast to the
typical discharge from civil commitment, which only requires the hospital director’s authorization.23 Finally,
most states place no limit on the length of time individuals found NGRI may spend in confinement, as long
as they continue to meet the commitment criteria, and the acquittee usually bears the burden of showing that
the criteria are not met.24
Not surprisingly, therefore, research indicates that the average length of stay for those acquitted by reason
can be substantial, particularly for those charged with serious crimes.25 Furthermore, when time spent
hospitalized as incompetent to stand trial is factored in, the length of confinement may be much longer.26
Finally, a number of studies have found that the confinement of those found NGRI is as long as or longer
than the confinement of persons imprisoned on similar charges.27 While several studies have also found to the
contrary,28 all the studies indicate that the insanity defense rarely results in immediate freedom or short-term
confinement when the charges are serious.29 Most important, any difference that does exist does not by itself
signify that there is a problem with either the insanity defense or the disposition of insanity acquittees. Only if
individuals found NGRI need to be confined for longer periods would these data merit such a conclusion.
On this score, there are several studies comparing the recidivism rates of individuals found NGRI who
have been released from the hospital with those of released felons convicted on similar offenses. Most studies
find that individuals found NGRI are less likely as a group to have recidivating members than felons as a
group, or that the two groups are about even in the rate of recidivism,30 although a few have reached less clear
results.31 As with research comparing the recidivism rates of those who are civilly committed to those of the
general population,32 these studies tentatively suggest that the most accurate predictors of violence are the
number and nature of prior offenses, not mental illness. They also suggest that the treatment provided to
those found NGRI is not particularly effective at removing criminal tendencies (although more recent
research, looking at the efficacy of conditional release programs for those found NGRI, is more positive in
this regard33). What the research does not support is the contention that typical released insanity acquittees
are “abnormally” dangerous, or that such persons should be confined longer than felons because they are more
likely to reoffend than their convicted counterparts.
In conclusion, the available research suggests that support for abolishing the insanity defense is misguided
inasmuch as it is based on the belief that the defense is frequently raised and usually successful, or on the
impression that an insanity acquittee is a dangerous “monster” who is let loose once acquitted or at the whim
of unmonitored hospital staff. It should also be noted that the last two subjects discussed—the duration of
confinement for persons found NGRI, and their potential dangerousness—have more to do with the correct
disposition of NGRI cases than with the insanity defense itself. The defense, and what is done with those who
successfully assert it, are two separate issues. The latter subject is discussed in more detail in § 10.10(c).
Over time, the defense of insanity has shown remarkable resilience. Despite intense public hostility toward
the doctrine and the introduction of scores of bills proposing its elimination, only four states have abolished it

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at this writing.34 For better or for worse, lawyers and mental health professionals must continue to grapple
with both the evolution and the scope of the defense.

(b) History of the Defense

The idea of a defense to criminal responsibility based on mental disability goes back as far as the ancient
Greek and Hebrew civilizations.35 English case law, which heavily influenced early American courts, has long
recognized the concept. At least as early as the 13th century, records show that English kings were pardoning
murderers because their crimes were committed “while suffering from madness.”36 Over the next several
centuries, many different formulations of the defense emerged. Sir Edward Coke, a famous legal scholar of
the late 16th and early 17th centuries, felt that “idiots” and “madmen” who “wholly loseth their memory and
understanding” should be found insane.37 Sir Matthew Hale, Chief Justice of the King’s Bench in the 17th
century, concluded in his private papers that the “best measure” for determining insanity was whether the
accused had “as great understanding as ordinarily a child of fourteen hath.”38 In 1723 Justice Tracy, refining a
concept introduced five centuries before,39 held that to be found insane “a man must be totally deprived of his
understanding and memory so as not to know what he is doing, no more than an infant, brute or a wild
beast.”40 At about the same time, other English courts were excusing those who lacked the capacity to
distinguish “good from evil” or “right from wrong.”41
It was this latter approach that, in slightly modified form, became the so-called “M’Naghten test” of
insanity. In response to controversy surrounding the insanity acquittal of Daniel M’Naghten for killing the
private secretary of Prime Minister Robert Peel, the House of Lords announced the following rule:

To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused
was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he
did know it, that he did not know he was doing what was wrong.42

This formulation, announced in 1843, became the accepted rule in both England and the United States.
Criticism of the test was vigorous, especially from the medical community. Indeed, five years before the
House of Lords’ pronouncement, Sir Isaac Ray, a noted American physician, had argued that the “insane
mind” is often “perfectly rational, and displays the exercise of a sound and well-balanced mind.”43 Thus,
according to Ray, a defense based on mental illness that focuses merely on cognitive impairment is
incomplete; the defendant’s ability to control his or her acts must also be considered.44 Although directed at
the law as it existed in 1838, Ray’s comments applied with equal force to the M’Naghten test, which varied
only slightly from its predecessors.
A second criticism of the rule was its rigidity. Even if one accepts the premise that cognitive dysfunction is
the only appropriate focus of the insanity defense, the M’Naghten rule, it was claimed, did not fairly pose the
question; a literal interpretation of the M’Naghten test would seldom if ever lead to exculpation. In the words
of one psychiatrist, “[if the test language were taken seriously,] it would excuse only those totally deteriorated,
drooling hopeless psychotics of long-standing, and congenital idiots.”45
In the United States, the legal response to the first criticism came in the form of a supplementary test for
insanity, which eventually came to be called the “irresistible impulse” rule. One of the first courts to adopt the

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rule described it as follows:

[The defendant is not] legally responsible if the two following conditions concur: (1) If, by reason of the duress of . . . mental disease he had
so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time
destroyed; (2) and if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to
have been the product of it solely.46

The adoption of the test was usually justified on the ground that those offenders who could not control their
behavior at the time of the offense were not deterrable by criminal sanctions; therefore, no legitimate moral or
policy purpose was served by convicting them.47
The “irresistible impulse” test met resistance from several fronts. Many in the legal community believed
that impulsivity could easily be feigned, and they feared that the test would lead to numerous invalid insanity
acquittals.48 From the medical side came the criticism that a separate “control” test furthered the mistaken
impression that the human psyche is compartmentalized into cognitive and volitional components.49 And,
like M’Naghten, the test was seen as too rigid, excusing only those who were totally unable to prevent their
unlawful behavior.50
In 1954, partly in response to the latter two contentions and the criticisms of M’Naghten, the federal
District of Columbia Court of Appeals adopted the “product test” for insanity—a rule originally devised by
the New Hampshire Supreme Court in 1870,51 but one that had received little notice since. As set forth in
Durham v. United States,52 the test stated simply that “an accused is not criminally responsible if his unlawful
act was the product of mental disease or defect.” Judge Bazelon, the author of the Durham opinion, hoped
that by removing legal strictures on clinical testimony and allowing explanation of all aspects of a defendant’s
personality and functioning, the rule would encourage mental health professionals to “help reform the
criminal law” and “humanize” it.53
In time, however, this lack of guidance became a problem in itself. The product test asked essentially two
questions: (1) Did mental disease or defect exist at the time of the offense? (2) Was the offense the product of
this disease or defect? The Durham court failed to define either “mental disease” or “product.” Trial courts had
particular difficulty dealing with the meaning of the former term, as it was no longer modified by functional
criteria, as it had been in earlier tests.54 The problem surfaced dramatically in 1957 when staff members at St.
Elizabeths Hospital, which provided the D.C. courts with most of their experts on the insanity issue, suddenly
voted to incorporate the personality disorders, including the so-called “sociopathic personality,” within the
definition of “mental disease” for purposes of the insanity defense.55 Because many criminal offenders have
some type of personality disorder, this weekend change in hospital policy had a major impact in the courts.
Not surprisingly, the insanity acquittal rate in the District of Columbia rose precipitously in the following
years.56
In the 1962 decision MacDonald v. United States,57 the D.C. Court of Appeals finally conceded that trial
courts required some guidelines in implementing the product test; it declared that henceforth “the jury should
be told that a mental disease or defect includes any abnormal condition of the mind which substantially affects
mental or emotional processes and substantially impairs behavior controls.”58 With the judicial gloss added by
MacDonald, the difference between the product test and a test combining M’Naghten and the “irresistible
impulse” rule was reduced substantially. Even so, definitional problems persisted, and Durham was finally

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overruled in 1972.59 Maine, the only state besides New Hampshire to adopt the product test, later abandoned
it as well.60
In place of the product test, the D.C. Court of Appeals adopted still another version of the insanity test,
which was first proposed a year after Durham. This test, drafted by the American Law Institute (ALI), was an
attempt to deal with most of the problems associated with previous tests by avoiding the all-or-nothing
language of the M’Naghten and “irresistible impulse” formulations, while retaining some specific guidelines for
the jury. The rule reads as follows:

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial
capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law.61

This language combines the notions underlying both the M’Naghten and “irresistible impulse” formulations,
but makes it clear that a defendant’s cognitive or volitional impairment at the time of the offense need only be
“substantial,” rather than total, to merit an insanity defense.
The ALI’s proposal also included a second paragraph, which, according to its drafters, was designed
specifically “to exclude from the concept of ‘mental disease or defect’ the case of so called ‘psychopathic
personality.’ ”62 It states: “As used in this Article, the terms mental disease or defect do not include an
abnormality manifested only by repeated criminal or otherwise antisocial conduct.”63 Interestingly, this
proposal was published two years before the St. Elizabeths vote on sociopathy.
The ALI test proved to be a popular one: Over the next two decades, a majority of the country’s
jurisdictions adopted the first paragraph, and many of these also adopted the second. Nonetheless, the ALI
test came under attack by a new wave of critics, who felt that it and all of the tests that preceded it relied too
heavily on the so-called “medical model.” Among these critics was Judge Bazelon, who came to believe that
the Durham rule’s emphasis on mental disease (and by implication the ALI test’s predicate as well) gave the
psychiatric profession too much control over the insanity finding.64 Thus he formulated a new test: A person
should be found insane “if at the time of his unlawful conduct his mental or emotional processes or behavior
controls were impaired to such an extent that he cannot justly be held responsible for his act.”65 This test does
away with the “mental disease or defect” requirement, as well as any specific requirement of functional
impairment. It gives the factfinder virtually limitless discretion to decide what types of “impairment” merit
excusing one for one’s behavior. Legal scholars such as Moore and Morse have proposed other tests that
abandon the medical model; instead, they focus on the “rationality” of the offender at the time of the
offense.66 But the “justly responsible” test and similar formulations have not received widespread acceptance.
Indeed, no state has rejected the medical model predicate for the insanity defense.67
A more popular (and the most recent) trend in insanity jurisprudence has been to attack the volitional
prong of the defense. During the debates over the defense occasioned by the Hinckley verdict, both the
American Bar Association (ABA) and the American Psychiatric Association recommended the elimination of
the so-called “control” inquiry, although they continued to support the “appreciation” prong of the ALI’s test
(thereby indicating an unwillingness to return to M’Naghten’s “knowledge” formulation).68 The ABA’s test
reads as follows: “[A] person is not responsible for criminal conduct if, at the time of such conduct, and as a
result of mental disease or defect, that person was unable to appreciate the wrongfulness of such conduct.”
Echoing past criticism, both the ABA and the American Psychiatric Association reasoned that if mistakes do

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occur in the administration of the insanity defense, they are most likely to result from utilizing a volitional
test.69 The commentary to the ABA’s standard states: “Clinicians can be more precise and arrive at more
reliable conclusions about a person’s awareness, perceptions and understanding of an event, than about the
‘causes’ of a person’s behavior, especially when the determinants of behavior are felt to be unconscious.”70 In
addition, Bonnie, who played an instrumental role in formulating both the ABA and American Psychiatric
Association tests, argued that an “appreciation” test was sufficient to capture the universe of people who
should be excused:

The most clinically compelling cases of volitional impairment involve the so-called impulse disorders—pyromania, kleptomania, and the like.
These disorders involve severely abnormal compulsions that ought to be taken into account in sentencing, but the exculpation of pyromaniacs
would be out of touch with commonly shared moral intuitions.71

Influenced by such arguments, in 1984 the United States Congress adopted a narrow version of the ABA
proposal, requiring that the offender demonstrate a “severe” mental disease or defect that caused the offender
to be “unable”—rather than merely “substantially unable”—to appreciate the wrongfulness of the criminal
act.72 A number of states followed suit. Thus today the full ALI test is used in only 14 states, down from its
peak of more than 25 states in the early 1980s. Some variation of the M’Naghten/cognitive-impairment-only
test holds sway in 28 states, with another three subscribing to M’Naghten plus the “irresistible impulse” test.
New Hampshire continues to use the “product” test, and, as noted earlier, four states (Kansas, Idaho,
Montana, and Utah) have abolished the defense, although expert testimony is still admissible on mens rea [see
§ 8.03(b)].73
Although the supreme courts in several of the latter states have upheld abolition of the insanity defense,74
the United States Supreme Court has yet to address whether the insanity defense is required under the federal
Constitution. However, in Clark v. Arizona,75 the Court did signal that all of the formulations discussed
above are sufficient for constitutional purposes. At issue in Clark was Arizona’s insanity formulation, which
tracked the prong of M’Naghten having to do with knowledge of wrongfulness, but eliminated that case’s
“nature and quality of the act” language as a separate basis for an insanity defense. Noting that it had never
decided that M’Naghten constituted the baseline for the insanity inquiry, and that nine other states had
adopted tests similar to Arizona’s, the Court held that “the insanity rule, like the conceptualization of criminal
offenses, is substantially open to state choice.”76 The Court also saw little practical difference between the
Arizona language and M’Naghten. It stated that “if a defendant did not know what he was doing when he
acted, he could not have known that he was performing the wrongful act charged as a crime.”77
A topic subjected to much research has been whether differences in test language produce any difference in
outcome. The results are equivocal, regardless of the methodology used. Relying on mock juries, Simon found
a small but statistically significant difference between verdicts from juries given the Durham instruction and
juries given the M’Naghten instruction, with the latter group finding fewer people NGRI.78 But in a second
mock-jury study, Finkel and colleagues found no significant differences among five versions of the insanity
test.79 A review of studies looking at the actual effect of changes in the insanity standard in five states
concluded that differences in acquittal rates may have occurred when the M’Naghten test was replaced by the
ALI test.80 Steadman and colleagues reported, on the other hand, that verdict outcomes in California
probably did not depend on whether the factfinder was using the M’Naghten or the ALI test.81

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 Regardless of whether the test language affects jury verdicts, the following comment by the ABA bears
repeating:

[T]he impact of particular language on decisions made before a jury retires to deliberate also must be considered—the decisions of experts
whether or not to testify and, if so, the formulation of their testimony; the strategic decisions by defense counsel relating to the insanity
defense, direct and cross-examination, and summation; and trial court rulings on the legal sufficiency of the evidence to raise a jury
question.82

(c) A Closer Look at the Insanity Defense

With the exception of the “justly responsible” test, each of the insanity tests described earlier incorporates the
notion that to be excused on the basis of insanity the defendant must have been suffering from a “mental
disease or defect.” In addition, each test requires that this mental disease or defect “cause” some type of
dysfunction at the time of the offense. Finally, except for the Durham rule, each test indicates in more specific
terms the type of dysfunction that must occur in order to justify a finding of insanity. (Under Durham, the
offense itself is sufficient evidence of dysfunction.) This section focuses on these three components of the tests
in more detail. It also looks at the issues of burden and standard of proof, because a jurisdiction’s rules
concerning how much evidence each party must produce in order to prevail may have a significant substantive
impact. Although the discussion attempts to delineate the major legal trends in each area discussed, it cannot
provide definitive answers for any given case, because of the inevitable ambiguity of legal terminology.
Whether an individual meets the legal criteria associated with insanity is ultimately a legal–moral question to
be decided by the judge or jury on a case-by-case basis. The observations below are offered merely as
guideposts to clinicians performing evaluations or testifying for the courts and to lawyers making tactical
decisions.

(1) Mental Disease or Defect

From its inception, the insanity defense has been available only to those individuals who suffer from some sort
of “mental disorder.” It has been argued that because environmental and sociological factors, such as poverty
and cultural “proclivities,” can have as significant an impact on an individual’s functioning as psychological
ones, they too should have exculpatory effect.83 But, as detailed above, the law has continued to adhere to the
so-called “medical model” of insanity. This tenacity is certainly due in part to the desire, noted earlier, to focus
on those who are not rational enough to understand and obey the commands of the law. But it also stems
from the belief that “exogenous” factors such as one’s environment are more subject to an individual’s control,
and therefore less deserving of consideration for purposes of assessing criminal responsibility.84
This is not to say that an insanity defense cannot be based on behavior that is “caused” by the environment,
but only that some internal, more “proximate” cause must also be identified. For instance, Vietnam veterans
have successfully attributed exculpatory effect to their experiences in Vietnam, but only when they can also
show that those experiences led to trauma and confused thinking which contributed to the offense [see the Ed
Wertz report, § 19.04(a)]. The focus in insanity analysis is on whether the person is abnormal; the direct
effect of abnormal situations is more commonly the province of other legal doctrines discussed later [see in
particular § 8.03(d)].

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 Accordingly, every currently accepted test for insanity establishes “mental disease or defect” as a threshold
consideration. The term “mental disease” has usually been equated with mental illness, whereas the term
“mental defect” is usually thought to be synonymous with intellectual disability, although some courts have
indicated that “defect” refers to any condition that is incapable of improving.85
Can these terms be defined any more precisely? Written opinions grappling with the mental disease or
defect threshold for purposes of the insanity defense are rare,86 but those that do exist construe the concept
narrowly. It will be remembered, for instance, that the District of Columbia Circuit Court of Appeals, in
defining the term for purposes of the Durham rule, stated that it only “includes any abnormal condition of the
mind which substantially affects mental or emotional processes and substantially impairs behavior controls”
(emphasis added). Other courts have emphasized that mild symptomatology will not support a defense,
presumably even if the individual is psychotic.87 A few have expressed some distaste for “temporary
insanity”—pleas based on nonpsychotic disorders such as “dissociative states,” which appear to take hold of
the defendant at the time of the offense but at no other time.88 A number have also indicated that alcohol- or
drug-induced “insanity” is rarely a successful claim, at least when the dysfunction is caused by short-term or
one-time use of the psychoactive substance;89 usually only in cases involving “settled insanity” from prolonged
alcohol or drug abuse (resulting in significant organic damage) are the courts willing to recognize an insanity
defense [see § 8.03(e)].
Some states have also passed statutory provisions narrowing the content of the mental disease or defect
threshold. A number of states have adopted the second paragraph of the ALI test, which, it will be recalled,
aims to exclude antisocial personality disorder from this threshold [see § 8.02(b)]. The federal insanity test, as
indicated above, requires that the mental disease or defect be “severe”; the provision’s legislative history states
that use of this word is meant to exclude “nonpsychotic behavior disorders or neuroses such as an ‘inadequate
personality,’ ‘immature personality,’ or a pattern of ‘antisocial tendencies.’ ”90 Other state statutes exclude all
personality disorders.91 Connecticut has provided that pathological gambling cannot form the basis for an
insanity defense.92 And some states have equated the definition of mental disorder in insanity cases with the
definition of mental disorder used in commitment statutes, which arguably requires a severe degree of
impairment.93 Similarly, both the American Psychiatric Association and the ABA have proposed definitions
of mental disease and mental defect that would adopt a narrow threshold. For example, the American
Psychiatric Association’s definition reads: “[T]he terms mental disease and mental retardation include only
those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or
understanding of reality and that are not attributable primarily to the voluntary ingestion of alcohol or other
psychoactive substances.”94
Analysis of trial outcomes affirms the judicial and statutory law. In historical fact, most successful insanity
defenses are based on the presence of one of two mental conditions: psychosis or intellectual disability.95 As
noted later [§ 8.04(a)], virtually all studies of the subject indicate that the majority (60–90%) of defendants
acquitted by reason of insanity are diagnosed as psychotic. To judges, lawyers, and juries, then, these
individuals are the most likely to appear sick rather than “evil” and the least likely to seem deserving of
criminal punishment.96
Equating “mental disease or defect” with psychosis and intellectual disability would be too simplistic a
summary of the law, however, especially as it has developed in modern times. For instance, several states

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permit a defense based on a personality disorder.97 Along the same lines, in Michigan—one of the states that
by statute has equated mental disease or defect with the definition of mental disorder in civil commitment—
courts have nonetheless refused to conclude that the insanity defense is limited solely to those conditions that
can form the basis for commitment.98 Similarly, research suggests that juries are swayed by evidence of
biological dysfunction even when it is not associated with overt psychotic symptomatology.99
As an empirical matter, individuals who have neither psychosis nor intellectual disability have been found
insane. The data described in § 8.04(a) show that in some jurisdictions, up to 25% of those acquitted by
reason of insanity are classified as having personality disorders.100 Indeed, one well-known criminal law text
has gone so far as to suggest that the mental disease or defect threshold adds nothing to the test for insanity
beyond the previously described preference for endogenous causes, stating that: “[I]t would seem that any
mental abnormality, be it psychosis, neurosis, organic brain disorder, or congenital intellectual deficiency . . .
will suffice if it has caused the consequences described in the second part of the test.”101 In other words, it is
asserted, any mental disability that results in significant cognitive or volitional impairment meets the
threshold.
In short, legal definitions of the mental disease or defect threshold, if they exist at all, are extremely vague
and vary from jurisdiction to jurisdiction. Thus it would be unwise to assume that a particular diagnosis can be
equated with insanity or its threshold. The drafters of the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, fifth edition (DSM-5), recognized this latter point in stating:

In most situations, the clinical diagnosis of a DSM-5 mental disorder . . . does not imply that an individual with such a condition meets legal
criteria for the presence of a mental disorder or a specified legal standard (e.g., for competence, criminal responsibility, or disability). . . . It is
precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis
does not imply a specific level of impairment or disability. . . . Nonclinical decision makers should also be cautioned that a diagnosis does not
carry any necessary implications regarding the etiology or causes of the individual’s mental disorder or the individual’s degree of control over
behaviors that may be associated with the disorder.102 (Emphasis added)

Accordingly, the clinician preparing a report or testifying about insanity may be best advised, in the usual
case, to focus on describing symptomatology—perhaps resorting to a diagnostic label only if it will help the
factfinder understand the nature of the person’s mental condition or its relative severity. The latter situation
might occur if, for instance, the clinician concludes that the person has schizoid personality disorder and that
telling the legal system this fact, together with a description of symptoms associated with this disorder, will
get across the comparative magnitude of the person’s mental problems [see § 8.07(a) for further discussion of
this point].
At the same time, it must be recognized that this fact-oriented approach to the mental disease or defect
issue will probably meet with resistance from the legal profession. As § 18.07 discusses in more detail, lawyers
and judges often ignore DSM-5’s cautionary injunction and demand that an expert give a diagnosis even when
it is not particularly helpful, in the belief that without one, no “mental disease or defect” exists. In such cases,
the clinician may find it advisable to provide the diagnosis and defend it, for what it is worth. But the clinician
(and lawyers conducting direct or cross-examination) should also keep in mind that succumbing to this
pressure might well result in a confusing and largely irrelevant battle over whether a person fits the criteria for
a particular diagnosis.

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 (2) Causation

Every test of insanity requires that the mental disease or defect “cause” either the offense itself (Durham) or a
dysfunction that in turn impairs the individual’s appreciation or control of the acts constituting the offense (as
with the M’Naghten, “irresistible impulse,” ALI, and ABA/American Psychiatric Association tests). To put it
simply, there must be a link between the mental disease or defect and the crime.
One might assume that proving the defendant was suffering from significant impairment at the time of the
offense would be sufficient to meet this element of the defense. But, in fact, the few courts that have
addressed this issue (in particular, the D.C. Court of Appeals during the Durham era) have emphasized that if
the disorder does not directly affect the defendant’s actions at the time in question, it is irrelevant. One’s
illness is not presumed to cause all of one’s acts; as the D.C. Court of Appeals put it, the evidence must show
that “but for” the disorder, the criminal act would not have occurred.103 Thus, for instance, in Case Study 8.1
it might be important to tease apart the extent to which Davidson’s intoxication, rather than his mental
illness, played a role in the offense.
Furthermore, some have contended that merely establishing a link between a certain mental or physical
state and the crime should not be enough. Moore has argued, for instance, that showing a crime was caused
by factors such as the unconscious or biology (e.g., an extra Y chromosome) is generally irrelevant to criminal
responsibility; the law typically should be interested only in the effect of the actor’s conscious reasons on
behavior.104 Moore arrives at this conclusion by distinguishing, on the basis of linguistic philosophy, between
“responsibility” and “causation”: Whereas the language of “causation” refers to events occurring because of
antecedent events, the language of “responsibility” refers to persons acting for reasons. According to Moore, if
the latter concept is not kept distinct from the former, one would have to adopt the untenable position that no
one is responsible for his or her actions, because all behavior can be said to be “caused” by factors other than
an individual’s reasons for the behavior—factors such as physiological processes or the unconscious. Thus, he
states, even if one assumes that a particular person’s behavior is “caused” by one of these other factors, the
person is nonetheless “responsible” for his or her behavior whenever it is done for reasons that are rational
(i.e., intelligible and relatively consistent with one another). Only if the person’s conscious reasons for acting
are irrational should exculpation result.
Moore’s argument has been criticized by a number of commentators,105 most notably on the ground that it
provides “an unduly thin account of the essential attributes for moral agency.”106 But it is probably the best
effort to date at reinforcing the contentions summarized in § 1.03(a): namely, that the determinism of the
behavioral sciences is inappropriate in the criminal context because it threatens the central premises of the
criminal law—that “free will” exists, and that people are generally responsible for their behavior. Unless the
defendant’s own reasons for acting are seen as the “proximate cause” of his or her actions, every case is
potentially open to deterministic claims that the actions were predestined by upbringing or biology. Moore’s
reasoning suggests that in insanity cases, testimony describing unconscious motivation, physiological evidence,
or environmental factors should generally be either excluded or minimized.107
What are the implications of the foregoing discussion for the mental health professional and the lawyer?
Causation in the insanity context might best be conceptualized in the same way it is in other areas of the law,
in terms of both “but for” or factual causation and “proximate” or legal causation [see, e.g., § 12.03(a)(3)].

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First, it must be determined to which disorder, if any, the crime is linked. If, for instance, a defendant has a
dual diagnosis of schizophrenia and antisocial personality disorder, and the crime appears to be associated only
with the latter, the “but for” or factual causation component of the insanity defense is unlikely to be met;
antisocial personality disorder is rarely an adequate predicate for insanity. Second, if a strong link is found
between a legally relevant mental disorder and the crime, an inquiry into whether the disorder is the
“proximate” or primary cause of the crime should be conducted. A serious mental disorder may contribute to
the crime, but may not be its major precipitant; for instance, in some cases the acute effects of drug use rather
than mental disorder may be the best single explanation for a crime. In such a multicausal case, the clinician
should identify all the causes and suggest, if possible, which are the strongest.
The effect of the mental disorder on the defendant’s behavior will usually be discernible through analysis of
the defendant’s stated or inferred desires and beliefs at the time of the crime; Case Studies 8.2 and 8.3 appear
to be examples of situations where this type of analysis is appropriate. Occasionally, however, as Case Study
8.1 demonstrates, the clinician may believe that unconscious conflicts played a role in the criminal activity. In
such cases, following Moore’s reasoning, only if the conscious reasons do not seem to explain a person’s true
motivation for acting (i.e., when they are not credible in some way) should other data be sought out and relied
on. As should become clear from the following discussion, the latter step is most likely to be necessary when
volitional, as opposed to cognitive, impairment is the suspected culprit.

(3) Cognitive Impairment

The M’Naghten test, the first prong of the ALI test, and the ABA/American Psychiatric Association
formulation permit a defense of insanity only if a mental disease or defect causes cognitive impairment at the
time of the offense. The M’Naghten test permits exculpation on either of two grounds: (1) when the
defendant did not know the nature and quality of the criminal act, or (2) when the defendant did not know
that the act was wrong. As the Supreme Court pointed out in Clark, typically an accused person who does not
meet the first test will not meet the second. The ALI and ABA/American Psychiatric Association
formulations, on the other hand, focus on the single standard of whether the defendant “substantially” lacked
the ability to “appreciate” the “criminality” of the act or, in the alternative, the “wrongfulness” of the act.
If one looks solely at the language of the two different formulations, it is clear that M’Naghten is the more
restrictive. Whereas M’Naghten speaks in terms of whether the offender did or did not know about the nature
of the act, the ALI refers to a lack of substantial capacity to appreciate it. In justifying their approach, the
drafters of the ALI test stated that whether an offender possessed “substantial capacity” is all “that candid
witnesses, called on to infer the nature of the situation at a time that they did not observe, can ever confidently
say, even when they know that the disorder was extreme.”108 In the same liberal spirit, they explained, use of
the word “appreciate” is designed to permit testimony about defendants’ emotional and affective attitude
toward their offenses, as well as about their perceptions and memory of the crimes.109 The language and
intent of the ALI test, then, indicate that it is significantly broader than M’Naghten. In theory, for instance, a
person with a personality disorder might never have a defense under a literal construction of M’Naghten
(because such a person will always “know” that crime is wrong), but may have a defense under the ALI test
(because such a person may not “emotionally appreciate” the wrongness of the crime).

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 Yet, according to Goldstein, who studied evidence presented and instructions given in jurisdictions that use
the M’Naghten rule, most courts interpret M’Naghten liberally, in a manner that makes it equivalent to the
ALI test.110 Thus the word “know,” when it is defined at all, is usually given broad construction to encompass
defendants’ ability to “understand” or “appreciate” the nature and consequences of their actions. The phrase
“nature and quality of the act” is either eliminated altogether from the jury’s instructions or, in Goldstein’s
words, “treated as [if it added] nothing to the requirement that the accused know his act was wrong.”111 As
indicated earlier [see § 8.02(b)], the little empirical evidence that exists is inconclusive with respect to whether
the ALI test leads to more pleas of insanity and more successful defenses than M’Naghten.
If there is any difference between existing formulations of the cognitive impairment necessary for insanity,
it is likely to arise in connection with the “wrongness” issue rather than the “knowledge/appreciation”
language. According to Goldstein, under M’Naghten some courts have interpreted the word “wrong”
restrictively, holding that defendants are sane if they knew that their offenses were prohibited by law. The
majority of courts, however, have taken the position that “wrong” should be read to mean “morally wrong.”112
Thus, to use Goldstein’s example, these latter courts would find legally insane a man who thinks God ordered
him to kill an individual, even if he knew it was legally wrong to take another’s life. The ALI options
described earlier are meant to reflect this dichotomy. If the word “criminality” is adopted, the test is meant to
apply only to those who did not appreciate that their act was legally wrong. If the word “wrongfulness” is
adopted, individuals who knew that their acts were illegal, but whose mental disorder nonetheless led them to
feel morally justified in committing these acts (e.g., the individuals in Case Studies 8.2 and 8.3?), may be
excused by reason of insanity.113
Some formulations of the cognitive prong attempt to stake out a position somewhere between the
criminality and wrongfulness approaches. For instance, a second rule adopted by the House of Lords in the
M’Naghten case was that if the defendant suffered from “partial delusions,” he would not have an insanity
defense unless his delusion would justify his crime. The House of Lords explained it thus:

For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills
that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious
injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

This modification of M’Naghten, which a few states explicitly follow today,114 narrows the scope of the
“wrongfulness” approach by providing that, of those defendants whose mental illness made them believe their
crime was morally permissible, only those who would have been justified had their delusions been true will
have a defense.
The Washington Supreme Court has limited the “moral wrong” approach even further by holding that it
applies only when the defendant feels justified as a result of a “deific decree” of the type referred to earlier
(where God orders the crime to be committed).115 To adopt the full-blown moral wrong approach, or even
the M’Naghten limitation on it, the Washington court reasoned, “would seriously undermine the criminal law,
for it would allow one who violated the law to be excused from criminal responsibility solely because, in his
own conscience, his act was not morally wrong.” This analysis leaves out the fact that the person alleging
insanity must also show a “mental disease or defect,” and that, at least under M’Naghten’s partial delusion test,
the imagined act must be justifiable. As Judge Cardozo stated in People v. Schmidt116—the first case to

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recognize the “deific decree” notion of insanity—“[t]he anarchist is not at liberty to break the law because he
reasons that all government is wrong. The devotee of a religious cult that enjoins polygamy or human sacrifice
as a duty is not thereby relieved from responsibility before the law.” Nonetheless, the Washington court’s fear
that terrorists and similar routinely antisocial individuals would benefit from the broad “moral justification”
formulation is understandable. Indeed, some have argued that even the deific decree version of the insanity
defense is problematic, because a “person’s sincerely held belief that God ordered him or her to kill qualifies as
a religious belief” and therefore “should not be characterized as a delusion.”117
Again, however, it is important not to make too much of differences in legal language. The M’Naghten
case itself provides an illustration of the degree of “stretch” in even that seemingly narrow test. Daniel
M’Naghten shot Edward Drummond, private secretary to Prime Minister Peel, apparently under the
mistaken impression that Drummond was the Prime Minister. The defense attorneys introduced evidence
tending to show that M’Naghten felt persecuted by a Tory “system” of spies that followed him, allowed him
no peace of mind, and was out to kill him; the defense also claimed that M’Naghten thought the person he
shot was part of this system. However, there is little doubt that M’Naghten knew the nature and quality of his
act in the literal sense: He knew he was firing a pistol, knew he was shooting a human being, and had every
intention of killing that human being. It also appears that he knew, in the abstract sense, that it was unlawful
to shoot another, and he may also have known that the shooting was not necessary to avoid further
harassment.118 Yet he was acquitted under instructions that were very similar to the rules subsequently
pronounced by the House of Lords.119
Furthermore, whatever the applicable test, the type of expert evidence submitted is not likely to vary. The
basic issue under any of these tests—degree of cognitive impairment—is the same. Later in this chapter, we
suggest some specific areas that can be investigated in this regard [see §§ 8.06, 8.07(a)].

(4) Volitional Impairment

The “irresistible impulse” test and the second prong of the ALI test excuse individuals whose mental disease
or defect causes a loss of control over their actions at the time of their offenses. The former standard is
popularly characterized as the “policeman at the elbow” test, under which offenders will be found insane only
if they would have committed their offenses in the presence of an officer (consider, in this regard, Case Study
8.1).120 The latter test, as with the ALI’s cognitive prong, focuses on whether the defendants lacked
“substantial capacity” to conform to the requirements of the law. Nonetheless, similar to experience with the
cognitive tests, the irresistible impulse formulation has not led to less testimony on the impulsivity issue than
is offered in ALI jurisdictions.121
Whatever language is used to encapsulate it, the lack-of-control defense clearly is not as favored as the
cognition-based excuses. As noted earlier, fewer than 20 states use one of the two control formulations, and
several states have specifically rejected the defense.122 Recall also that the principal criticism of the control
tests is the lack of objective basis for determining whether an impulse is irresistible. The American Psychiatric
Association states:

The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk. . . . The
concept of volition is the subject of some disagreement among psychiatrists. Many psychiatrists therefore believe that psychiatric testimony

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 (particularly that of a conclusory nature) about volition is more likely to produce confusion for jurors than is psychiatric testimony relevant to
a defendant’s appreciation or understanding.123

Some question exists, however, as to whether these assertions of potential abuse are correct. At least one
study suggests that volitional impairment is just as easily gauged as cognitive impairment, at least when a
structured instrument is used.124 Moreover, the courts in jurisdictions that maintain a loss-of-control defense
have usually been careful to restrict its scope in two ways. First, many have narrowly defined the type of
mental disease or defect that can form the predicate for this type of defense. As one court put it, the
irresistible impulse “is to be distinguished from mere passion or overwhelming emotion not growing out of
and connected with, a disease of the mind. Frenzy arising solely from the passion of anger and jealousy,
regardless of how furious, is not insanity.”125 Illustrative is a decision that denied a volitional impairment
defense to a woman with a “passive–aggressive personality” who was conceded to have killed her husband in
the heat of the moment, but at the same time acted merely on the basis of “sudden anger produced by the pain
of his kick.”126 In another case, the court upheld a conviction for bail jumping of a defendant who claimed he
was insane because he suffered from something called a “judgment disorder with mixed disturbances of
emotions and conduct.”127
A second way courts restrict the volitional impairment defense is through requiring a significant degree of
impulsivity. For instance, Virginia courts have held that under the irresistible impulse test, any indication of
planning preceding the criminal act will prevent an insanity finding.128 An old Pennsylvania decision, not yet
overruled, held that an irresistible impulse defense is permitted only when the defendant can show that the
same impairment had caused a similar act on another occasion.129 Many jurisdictions using the ALI’s
volitional test or its equivalent have been similarly restrictive. For instance, one federal appellate court held,
before abolition of the volitional prong in federal jurisdictions, that expert evidence that the defendant’s
embezzlement was due to his pathological need to gamble did not even overcome the “presumption of sanity”
[see § 8.02(c)(5) for discussion of this term], much less make a positive case for insanity.130
On the other hand, it must be admitted that these types of restrictions are not uniformly applied. As the
trial of Lorena Bobbitt (charged with severing her husband’s penis) illustrated, insanity acquittals for “crimes
of passion” have occurred despite an absence of significant mental disorder. Courts in other jurisdictions have
been willing to let the volitional impairment issue go to the jury despite considerable evidence of planning.131
And some courts have quoted with favor a comment made by Warren Burger before he rose to the Supreme
Court that the irresistible impulse label “has always been a misleading concept because it has connotations of
some sudden outburst of impulse and completely overlooks the fact that people do a lot of weird and strange
and unlawful things as a result of not just sudden impulse but long brooding and disturbed emotional
makeup.”132 In short, the scope of the volitional prong is extremely vague. Whether this vagueness leads to
more “abuse” than occurs under the cognitive-impairment-only approach is still not proven, however.
The practical arguments against the volitional prong do not directly address whether volitional impairment
— if it can be proven and if it is significant—should be given exculpatory effect. Several commentators have
argued that the concept of an excuse based on impaired volition is “vacuous”133 or is better captured through
analysis of whether the allegedly compelled action is rational.134 Yet there is also a long philosophical
tradition suggesting that volitional impairment, by itself, should have mitigating impact.135 Bonnie’s assertion
[described in § 8.02(b)] that it would violate our “shared moral intuitions” to find insane those people who

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have been diagnosed as having pedophilia or kleptomania may be correct. But these are not the only types of
disorders that might cause volitional impairment with few or no cognitive ramifications. For instance, one
study concluded that manic patients are often severely impaired in their capacity to control behavior, while
their cognitive impairment is less striking. As a result, the authors of the study asserted, elimination of the
volitional prong could lead to conviction of “a class of psychotic patients whose illness is clearest in
symptomatology, most likely biologic in origin, most eminently treatable and potentially most disruptive in
penal detention.”136 Even Moore, whose focus on the rationality of one’s reasons for acting [see § 8.02(c)(2)]
significantly diminishes the role volitional impairment would play in insanity analysis,137 is unwilling to
conclude that compelled behavior cannot form the basis of an exculpatory defense [consider Case Study 8.1
and the Seth Hedges report, § 19.04(c)].138
The lack-of-control tests are still viable in many states and may even make a comeback, especially as more
is learned about neurological correlates of behavior such as frontal lobe disorder.139 Although appellate courts
have interpreted the control tests somewhat restrictively, juries still seem willing to acquit on lack-of-control
grounds, even when there is some evidence of planning. Later in this chapter, we attempt to pinpoint those
factors that seem most relevant to the impulsivity inquiry [see §§ 8.04(f)–(g), 8.05(d), 8.06, 8.07(c)].

(5) Burden and Standard of Proof

In those cases that go to trial, neither side may be able to present evidence that is overwhelmingly convincing
to the factfinder. The law has developed two concepts, “burden of proof” and “standard of proof,” to deal with
this probability. If the party with the burden of proof does not meet the standard of proof established by law,
that party loses. The outcome of an insanity case could depend as much on a jurisdiction’s approach to these
proof issues as on its substantive test of insanity.
There are three major competing approaches to proof issues in the insanity context. Most states place the
burden of proof on the defendant to show by a “preponderance of the evidence” (or with a 51% degree of
certainty) that he or she was insane at the time of the offense.140 If the defendant’s evidence does not meet
this standard, the prosecution wins. Arizona and the federal courts require the defendant to prove insanity by
“clear and convincing evidence” (or with approximately a 75% degree of certainty).141 The remaining states
require the prosecution to prove sanity “beyond a reasonable doubt” (which translates to perhaps a 90–95%
degree of certainty). If the factfinder is not convinced beyond a reasonable doubt that the defendant was sane
at the time of the offense, the prosecution loses.
The courts that follow the latter approach appear to treat sanity as if it were an element of every crime, just
as some type of unlawful act is an element of every crime. These courts reason that just as the prosecution
must prove beyond a reasonable doubt that the act associated with a given crime was in fact committed by the
defendant, it must also prove beyond a reasonable doubt that the defendant was sane at that time. Courts and
legislatures that place the burden on the defendant do not consider sanity a formal element of every crime, or
they disregard the elements analysis entirely; their principal concern is that the “reasonable doubt” standard of
proof might unfairly hinder the prosecution in cases involving the ambiguous matters raised by an insanity
plea.142 In fact, the data that exist do not suggest any consistent relationship between the burden of proof and
the acquittal rate.143

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 A final proof issue deserving of mention is the so-called “presumption of sanity.” This evidentiary doctrine,
which exists in all jurisdictions, does not affect the burden of proof just discussed; it merely requires the
defendant to “get the ball rolling” on the insanity issue by presenting some evidence of insanity. Most state
courts hold that a “scintilla” (or very minimal amount) of evidence satisfactorily rebuts this presumption;144
other jurisdictions require the defendant to present a prima facie case of insanity,145 which means that the
evidence standing alone must be sufficient to support an insanity verdict. If the judge decides that the
presumption has not been rebutted, the defendant is not entitled to argue the insanity defense. If the judge
decides that the presumption has been rebutted, the evidence goes to the jury and the jury decides, under the
appropriate burden and standard of proof, who wins. Unlike the burden and standard of proof, the
presumption is never mentioned to the jury; it is merely a judicial device for ensuring that the defendant does
not waste the jury’s time with a frivolous argument.

8.03. EXCULPATORY AND MITIGATING DOCTRINES OTHER THAN INSANITY

Except for strict liability offenses, which are not relevant to the topic of this chapter, every crime consists of at
least two elements: (1) the physical conduct associated with the crime (known as the actus reus); and (2) the
mental state, or level of intent, associated with the crime (known as the mens rea). To convict an individual of
a particular crime, the state must prove beyond a reasonable doubt that the defendant committed the actus
reus with the requisite mens rea for the crime (e.g., murder is the unlawful killing of another human being
[the actus reus] with intent to do so [the mens rea]). Whether conviction also requires proof of a third
element—sanity—has been discussed in the preceding subsection and is not reexamined here.
The law requires an act as a predicate for criminal liability because “evil thoughts” alone, however
repugnant morally, have never been considered sufficient to justify the imposition of criminal sanctions. It has
developed the mens rea requirement because proof that an individual has committed a given act is not viewed
as a sufficient measure by itself of criminal culpability. All would agree, for example, that the unjustified
killing of another is reprehensible. But we would all also probably agree that the driver who accidentally runs
into a child, the husband who in a rage kills the man he finds sleeping with his wife, and the “cold-blooded”
murderer should not be punished equally. Determining the individual’s mens rea at the time of the offense
provides a mechanism for deciding how much retribution is justifiable in such cases. Most of the legal
doctrines to be discussed in the following subsections have developed out of the law’s attempt to define the
actus reus and mens rea concepts.

(a) Automatism Defense

The actus reus contemplates a voluntary physical act. For instance, if A pushes B’s arm into C, B cannot be
convicted of assault even though B’s arm committed the actual touching, because B’s act was not voluntary. It
could also be said that B did not intend to commit the assault and thus did not have the mens rea for the
crime. But a distinction is usually made between an act over which there is no conscious control and a
conscious action with unintended consequences. The assault described here is an example of the first type of
act and has traditionally been analyzed under the voluntariness requirement of the actus reus. An example of

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the latter situation would be if B meant to tap C but instead killed C; B’s act would be voluntary, but B would
not have the mens rea for murder.
The automatism (or unconsciousness) defense recognizes that some criminal acts may be “involuntary,”
even though no third party (like A in the previous example) is involved. The classic example of the
“automaton” is the person who commits an offense while sleeping; courts have held that such an individual
does not have conscious control of his or her physical actions and therefore acts involuntarily.146 Other, more
“clinical” situations in which the defense might be implicated arise when a crime occurs during a state of
unconsciousness induced by a head injury, hypnotic suggestion, shock created by bullet wounds, or metabolic
disorders (such as anoxia, hypoglycemia, or the involuntary ingestion of alcohol or drugs).147 As discussed in
more detail later, events caused by epilepsy and dissociation are probably best placed in this category as well.
Several courts have limited the automatism defense by holding that a person claiming to have been affected
by one of the above-named conditions at the time of the offense cannot prevail if the disability has been
experienced on previous occasions, and if steps reasonably could have been taken to prevent the criminal
occurrence.148 For example, if a man knows he is subject to epileptic seizures, loses control of a car because of
a seizure, and kills someone in the process, he may not be able to take advantage of the defense. Note that the
same concern about causing the condition of one’s excuse could also apply in the insanity context (consider
Case Study 8.2 in this regard), although it is seldom stated explicitly in the appellate cases.149
Conceptually, the automatism defense differs from the insanity defense in three ways. First, insane persons,
unlike automatons, generally have conscious control of their acts, but either do not understand the true nature
of the acts or cannot stop themselves from performing them. Second, although most jurisdictions do not
consider sanity an element that must be proven for each offense, the prosecution clearly bears the burden of
establishing the actus reus and thus bears the burden of negating an automatism claim beyond a reasonable
doubt. Finally, to prevail, a person alleging insanity must be found to have a mental disease or defect; there is
no such requirement when automatism is involved.
Partly because an automaton is not perceived to be as “sick” as an insane person, and partly because cases
raising the issue of legal unconsciousness are rare, there are no special commitment statutes (analogous to
those used in the insanity context) governing those who are acquitted on automatism grounds. But
occasionally, of course, a person suffering from a condition that causes involuntary behavior in the legal sense
may be both in need of treatment and quite dangerous. Thus many courts confronted with an automatism
defense have glossed over the theoretical distinctions between insanity and automatism in order to ensure the
commitment of violent offenders. For example, most commentators agree that an epileptic seizure is best
characterized as an involuntary act rather than an “irresistible impulse,” because the seizure is not triggered by
the individual’s conscious (or even unconscious) processes.150 Yet courts in Britain, where the law of
automatism is well developed, have rejected automatism defenses based on epilepsy and instead have
permitted only claims of insanity in such cases, on the explicit ground that to do otherwise would result in
immediate release of dangerous individuals.151 Rather than distorting the insanity doctrine in such a fashion,
it would make more sense to subject those acquitted on automatism grounds to commitment provisions
similar to those applicable in the insanity context.
The automatism defense is infrequent in the United States, even in cases in which it is most likely to be
successful. Cases involving dissociation illustrate this point. Conduct committed by a person in a dissociative

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or fugue state is probably best described as activity that, although purposive in nature, is no longer subject to
conscious constraints, and is therefore “involuntary” or “automatic.”152 Yet American defendants claiming to
have experienced dissociation at the time of the offense usually rely on the insanity defense rather than the
automatism doctrine, or are forced to do so by the courts.153 Consider specifically defenses based on
dissociative identity disorder (DID), previously called multiple personality disorder (MPD). According to
DSM-5, individuals with DID experience at least two personality states with different moods, perceptions,
behavioral characteristics, and identities, as well as memory patterns that are not continuous and do not
overlap with each other.154 [See § 8.04(d) for further clinical discussion of MPD/DID.] In most cases in
which the diagnosis is involved, the issue has been whether the personality in control at the time of the
offense was insane.155 An arguably better analysis, suggested by automatism doctrine, is to determine “who”
was in control at the time of the offense—the “host” personality or one of the alters.156 If the latter, acquittal
should result, given the defendant’s lack of conscious control over his or her actions. If the former, then and
only then should insanity become an issue.
Admittedly, identifying the “host” may sometimes be difficult. In such a situation, Saks has argued that the
defendant should be found nonresponsible, except under two conditions: (1) when “all of a multiple’s alters
know about and acquiesce in the crime,” or (2) when there is a “ringleader alter in addition to well-established
lines of responsibility for different tasks [such that] each alter has sufficient knowledge and control over the
others that group liability makes sense.”157
In any event, this discussion suggests that automatism may be a more appropriate defense than insanity in
some types of cases. But judicial hostility toward a doctrine that results in complete acquittal may help explain
its relative dearth in the case law. Partly to allay such concerns, and partly based on an assessment of the
relevant science, one author has proposed what amounts to a “diminished voluntariness” defense, analogous to
the diminished responsibility defense discussed below, that would result in conviction of a lesser included
offense in cases where consciousness is thought to be only partially compromised.158

(b) Mens Rea Testimony (Diminished Capacity)

The principal device the law uses to grade culpability is mental state. A person who deliberately plans a crime
is more culpable than one who accidentally commits one. Under the common law, courts developed literally
scores of mens rea terms to describe various levels of culpability. Unfortunately, these terms—“willful and
wanton,” “with a depraved heart,” and so on—were more colorful than descriptive. Over the years, two generic
categories were created to help categorize these diverse mental states, although they were only partially
successful in doing so. “Specific intent” was meant to designate the mens rea of those crimes requiring a
further intention beyond that identified with the physical act connected with the offense (e.g., “premeditated”
murder, “aggravated” assault, and assault “with intent to rape”). “General intent” crimes, on the other hand,
only require proof that the perpetrator was conscious of his or her physical actions and knew or should have
known of their consequences (e.g., manslaughter, battery, and rape).
Because neither the original mens rea terms nor the concepts of specific and general intent were necessarily
self-defining, modern statutory codes have attempted to be more precise on issues relating to mental state.
Most influential in this regard has been the ALI’s Model Penal Code formulation, which attempts to simplify

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the mens rea inquiry by specifying four different mental state “levels.” In descending order of culpability, they
are (1) “purpose,” when the criminal conduct is the offender’s conscious object; (2) “knowledge,” when the
offender is aware of the circumstances that make the conduct criminal, but does not intend them; (3)
“recklessness,” when the offender “consciously disregards a substantial and unjustifiable risk” that the conduct
will produce a given result; and (4) “negligence,” when the offender, although not actually aware of such a risk,
should have been aware of it.159
The first two mental states (purpose and knowledge) focus on subjective mental state (i.e., what the
defendant was thinking), whereas negligence is objectively defined (i.e., what a reasonable person should have
thought). Recklessness falls somewhere in between the two. Although the common-law terms are so
amorphous that equating them with Model Penal Code mental states is a somewhat risky venture, it is
probably fair to say that “specific intent” most closely coincides with the subjective mental states of “purpose”
and “knowledge,” while “general intent” can be equated with “recklessness” and “negligence.” As will become
clear later, distinguishing between subjective mental states (purpose, knowledge, and specific intent) and
objectively defined mental states (negligence, general intent) is important in understanding the courts’
approach to clinical input on mens rea.
It is also important to recognize that the mens rea inquiry described above is quite distinct from the
insanity inquiry. Although a person who meets the M’Naghten test may also be incapable of forming the
requisite intent for an offense, it is theoretically and practically possible for an insane person to have the
appropriate mens rea. In fact, most people who are found insane had the mens rea for their crime. To use the
M’Naghten case as an example once again, Daniel M’Naghten probably met the mens rea requirements for the
crime charged (i.e., knowingly shooting at another with the purpose of killing him), but he was nonetheless
found insane. Similarly, John Hinckley certainly intended to cause harm to President Reagan, and Andrea
Yates planned the killing of her children, but both were found insane.
Out of this distinction has developed the so-called “diminished capacity” concept. In its broadest sense,
this “doctrine”160 permits the accused to introduce clinical testimony focusing directly on the mens rea for the
crime charged, without having to assert an insanity defense. For example, in a murder case, the doctrine would
allow clinical evidence relevant to whether the defendant purposely or knowingly committed the killing. If the
charge is assault with intent to rape, mental health professionals would be permitted to address whether the
defendant acted with the purpose of committing rape at the time of the offense. In contrast to the disposition
when insanity is the defense, when the mens rea for a crime is negated by clinical testimony, the defendant is
acquitted only of that charge. Thus, in the homicide example, conviction might still be sought on a
manslaughter charge (requiring a reckless or negligent mens rea). In the rape case, prosecution on assault
charges is still an option. Showing the absence of mens rea for these lesser included offenses is unlikely,
because these crimes are either partially or wholly objective (i.e., dependent on whether a “reasonable” person
should have known his or her conduct would cause the harm), and thus evidence of subjective mental state is
irrelevant.
The diminished capacity doctrine should be distinguished from the “diminished responsibility” or “partial
responsibility” doctrine. The latter doctrine is a “mini-insanity defense,” which gives mitigating effect to
mental disorder that causes cognitive or volitional impairment, but produces neither insanity nor an inability
to form the mens rea for the offense. For instance, in People v. Poddar,161 the defendant—a student from

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India who was accustomed to arranged marriages—tried to introduce testimony by an anthropologist that he
killed his girlfriend because of the stress created by American-style relationships. This testimony, which was
not permitted, would not have negated mens rea; Poddar clearly intended to kill his girlfriend. Nor was it
evidence of insanity. Rather, it would have merely suggested that cultural differences impaired Poddar’s
reasoning and volitional capacities. A similar example comes from United States v. Alexander and Murdock,162
in which one of the defendants, a black man, wanted to present evidence of his “rotten social background” and
experience with racial oppression to explain why he shot two Marines who had responded to his taunts with
racial epithets. Again, this testimony, which the court excluded, would merely have suggested a reduction in
impulse control in certain situations, not a lack of mens rea or the presence of insanity.
As the upheld convictions in these two cases indicate, the doctrine of diminished responsibility has rarely
enjoyed support in the courts. For a time in California, the doctrine appeared to flourish (although it was
often confusingly called “diminished capacity,” which explains the result in Case Study 8.1).163 But in 1981
the California legislature abolished it.164 Today, evidence of diminished responsibility—usually described in
terms of whether the defendant was experiencing “extreme mental or emotional disturbance” at the time of
the crime—is admissible at murder trials in some states [see § 8.03(d)] and is considered very relevant at
sentencing, especially in death penalty cases [see § 9.05(a)].165 But except in these situations, it is likely to
remain dormant, if only because it is so difficult to implement: How does one sensibly define “partial
responsibility” for the jury, and of what crime is the partially responsible defendant guilty?166
On the other hand, the diminished capacity doctrine, focused solely on whether the defendant had the
mens rea for the crime, has found greater acceptance. A sizable number of states,167 as well as the federal
courts,168 prohibit clinical testimony on any issue other than insanity, generally on the ground that such
testimony is too speculative or comes too close to diminished responsibility testimony.169 But many other
states (perhaps 35 all told) permit clinical testimony on mens rea as well as on insanity, at least under certain
circumstances.170
One issue addressed in Clark v. Arizona,171 decided by the United States Supreme Court in 2006, was
whether such a stance is constitutionally required (a second issue addressed in Clark, discussed above, was the
proper scope of the insanity defense). Prior to Clark, several courts had held that principles of fairness and due
process require permitting defendants to introduce any competent relevant evidence, including psychiatric
testimony, in their defense.172 It could also be argued that because the prosecution is entitled to an inference
that accused persons intend the natural consequences of their acts,173 denying defendants the opportunity to
present competent clinical evidence when such evidence is the only means of overcoming the inference would
in effect permit the prosecution to convict when there is a reasonable doubt as to guilt.174
In Clark, however, the Supreme Court rejected these types of arguments. Although it stated that
“observation evidence” relevant to mens rea should always be admissible, it upheld an Arizona statute that
limited clinical opinion testimony in criminal cases to the insanity issue. The Court gave several reasons for its
holding, but they boiled down to three related concerns about opinions that address the capacity of those with
mental disorder to form mens rea: (1) Such opinions are of suspect reliability; (2) they may mislead the jury;
and (3) they may address legal issues rather than clinical ones. As the Court put it, “empirical and conceptual
problems add up to a real risk that an expert’s judgment . . . will come with an apparent authority that
psychologists and psychiatrists do not claim to have.”175 This reasoning is an interesting contrast to the

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Court’s analysis in Barefoot v. Estelle,176 which permitted clinical predictions of risk in capital cases despite
arguments that such opinions are scientifically suspect and likely overinfluence the jury [see § 9.05(a)].
After Clark, limiting clinical opinion testimony to the insanity defense, where the defendant rather than
the state often bears the burden of proof, is apparently constitutionally permissible. At the same time, the
Court emphasized that “observation” testimony should still be admitted on mens rea issues even if it comes
from mental health professionals. According to the Court, observation evidence includes not only what the
defendant did and said during the period of the alleged offense, but also “testimony that an expert witness
might give about [the defendant’s] tendency to think in a certain way and his behavioral characteristics.”177
This type of testimony is to be contrasted, according to the Court, with “mental-disease evidence” that
describes a defendant’s particular disorder (e.g., the defendant was “psychotic” or “suffering from
schizophrenia” at the time of the offense) and with “capacity evidence” about a defendant’s “capacity for
cognition and moral judgment.”178 The latter two types of testimony may constitutionally be excluded. As the
four-member dissent in Clark points out, this scheme permits the expert to testify about a person’s
“tendencies” while prohibiting the expert from linking it to a diagnosis that helps explain why those
tendencies exist, and also prevents an expert from verifying that thoughts the defendant claims to have had are
common among people with certain disorders.
Clark is a confused and confusing opinion. As to the ban on “mental-disease evidence,” the dissent
persuasively noted that “[i]t makes little sense to divorce the observation evidence from the explanation that
makes it comprehensible.”179 Similarly, the ban on capacity evidence would exclude not just ultimate-issue
testimony, but also expert testimony explaining why the defendant’s account of his or her thought process is
credible. In Clark itself, for instance, Clark claimed that he thought the police officer he killed was an alien,
and thus that he did not have the mens rea for homicide (which requires knowing that the victim is a person).
To support the factual predicate of that argument, he presented an expert who verified that people with
psychosis often have such threatening delusions. But the Supreme Court upheld the trial judge’s refusal to
consider this testimony, at least on the mens rea issue.
Of course, Clark was still able to present expert testimony on the insanity issue. And although the Court’s
analysis in Clark is occasionally befuddling, underneath its convoluted categorizations is a real concern: that a
defendant will present diminished responsibility testimony in the guise of mens rea testimony and hope the
jury will acquit because it doesn’t understand the difference. The antidote to this problem, however, is not per
se exclusion of all evidence on mens rea; rather, as the Court has concluded in several other contexts,180 judges
should evaluate admissibility on a case-by-case basis. As developed in more detail below, diffuse testimony
about disorder that is not directed to an element of the offense should be excluded, or relegated to the insanity
defense; however, testimony such as that presented in Clark should be admissible on both issues if it satisfies
the rules of evidence.
The courts, however, are leery of carrying out such a case-by-case analysis. Even those states that permit
clinical testimony on mens rea usually do so grudgingly. Over the past century, three types of limitations on
such evidence have developed. First, to prevent clinicians from testifying on the ultimate issue of whether
defendants possessed the requisite mens rea at the time of their offenses, many courts permit clinicians to
testify only as to the “capacity” of the defendant to form the requisite mental state (thus one reason for the
name “diminished capacity”); further testimony that the person did, or did not, have the necessary intent is

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barred.181 Second, courts may require proof that a severe “mental disease or defect,” analogous to that required
in the insanity context, caused the lack of capacity.182 Finally, most states restrict the admissibility of clinical
evidence to certain types of crimes.
This third limitation on mens rea evidence is itself of two types. One approach permits clinical testimony
only on behalf of defendants charged with some type of intentional homicide.183 A second approach, taken by
most other states that allow clinical testimony on mens rea, admits clinical testimony for any crime involving
“specific intent” (in common-law jurisdictions) or for which intent is subjectively defined (in Model Penal
Code jurisdictions), but does not admit such evidence for crimes involving “general intent” (in common-law
states) or for which intent is defined objectively (in Model Penal Code states).184
The “capacity” and “severe mental abnormality” limitations represent an attempt by the courts to ensure
that any opinions proffered by mental health professionals on mens rea are in fact clinical in nature. They are
also motivated by a fear that without such restrictions every case will turn into a psychiatric one, as there is
always something “expert” to be said about the psychological processes of criminals. Limiting mens rea
evidence to certain types of crimes is directed toward another concern: that some mentally ill defendants
(including those who ordinarily would have pleaded insanity and thus been committed) will otherwise be able
to use clinical evidence to elude confinement completely.185 The public is protected in states limiting
testimony on mens rea to murder cases by the fact that a defendant who has killed another person can almost
always be convicted of at least negligent homicide (involuntary manslaughter), no matter how mentally ill; as
noted earlier, the mens rea for that crime is objectively defined in terms of what a reasonable person would do,
making clinical evidence of the defendant’s subjective state of mind irrelevant. Similarly, in those states in
which the defense is available only for crimes involving specific intent, a defendant with mental illness can
usually be convicted of some lesser included offense requiring only general intent.
The limitations on mens rea evidence thus grew from practical concerns. However, none of these
limitations is conceptually justified. If, as many courts have held, due process prohibits barring competent
evidence on mens rea, the sole requirement for clinical testimony relevant to that subject should be whether it
is admissible as expert opinion [see § 1.04]. If a clinician’s opinion avoids technical legal language (e.g., the
defendant “premeditated” the act), is based on specialized knowledge, and can assist the trier of fact in
reaching a conclusion on the issue, it should be admissible whether it is phrased in terms of capacity or actual
intent, whether it is based on a finding of significant mental abnormality or mere “quirkiness,” and regardless
of the offense charged.186 Admittedly, deciding when a particular opinion is based on “specialized knowledge”
may be difficult in certain cases. But this problem is alleviated somewhat by the narrow confines of the mens
rea concept. As the example using the M’Naghten case illustrated, mere proof of “craziness” is insufficient for
purposes of negating mens rea; it must be shown that because of mental aberration, the defendant was actually
unable to formulate the requisite intent. If A, a person with schizophrenia, intends to kill B, A has the mens
rea for some type of intentional homicide; only if A’s illness negates intent—for example, A thinks that B is
nonhuman (e.g., an alien, as in Clark)—would A be able to benefit from a diminished capacity defense.
Volitional impairment of the type evidenced in Case Study 8.1 is also usually irrelevant to the mens rea issue.
The fear that the public will be endangered unless the doctrine is limited in scope is also exaggerated.
Because most mentally ill defendants are conscious of their actions, they will often be guilty of some crime
involving general intent, objectively defined, even without the technical restriction rigidly limiting clinical

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evidence to offenses involving specific intent. And there is no obstacle to adopting special-commitment
statutes for those dangerously mentally ill persons who somehow do escape conviction altogether.
A description of a federal case may help illustrate why clinical testimony about mens rea should generally
be admissible. In Bright v. United States,187 the defendant was charged with possession of stolen checks—a
crime requiring proof that the accused person knew the checks were stolen. The defendant in the case received
six checks under circumstances that would have suggested to most people that they were stolen. However, the
defendant offered testimony by a psychiatrist suggesting that she had in fact not known they were stolen.
According to the psychiatrist, the defendant had a “passive–dependent” personality and possessed a “childlike
character structure,” which led her to trust implicitly those close to her; because the person who gave her the
checks was a good friend of her boyfriend and told her the checks were legitimate, she did not think they had
been stolen. One may question whether the clinician’s testimony was based on specialized knowledge (which
is, in essence, the reason the court gave for excluding it). But his testimony, if accepted as competent, was
clearly relevant to the issue of whether the defendant knew the checks were stolen, even though it was neither
phrased in terms of capacity nor based on a finding of severe mental illness. To exclude it on irrelevance
grounds would have permitted conviction of a person who might not have been guilty of the crime as defined
by the legislature.
Even in jurisdictions that do not recognize the diminished capacity defense, the testimony in Bright might
possibly have been admitted as “character evidence.” An increasing number of courts allow psychiatric opinion
evidence about the defendant’s character, independently of their stand on the diminished capacity issue.188
This trend is an outgrowth of the rule, found in the Federal Rules of Evidence and the evidence rules in most
states, that opinion evidence of a “pertinent” trait of an accused person’s character is admissible to show that
the person “acted in conformity therewith on a particular occasion.”189 The previously described limitations
on diminished capacity testimony (i.e., the capacity, mental disease, and crime limitations) do not apply to
character evidence. Such evidence is evidence about relative capacity, so the capacity limitation is meaningless
in this context. And under the evidentiary rules, if character evidence tends to show that the accused person
acted a certain way on the day of the offense, it is generally admissible regardless of the degree of disability or
the crime involved.
The one significant limitation on psychiatric opinion evidence about character, aside from the obvious one
that it must be acceptable as expert opinion based on specialized knowledge, is that it cannot be introduced
unless the defendant chooses to open the door on that topic.190 The prosecution is not permitted to introduce
evidence of the defendant’s bad character unilaterally, out of fear that the factfinder will convict on the basis of
the character evidence, not the evidence related to the crime in question. Once the defendant opens the door
on character, on the other hand, the prosecution may rebut with opinion evidence on character, or evidence of
specific acts that tend to show the defendant does not have the asserted character. Thus, in Bright, the expert
testimony could have been admitted as character evidence because it showed a propensity on the part of the
defendant to believe what those close to her said—a propensity that was relevant to whether she had the mens
rea for the crime charged. The prosecution could have rebutted this testimony with expert testimony showing
that Bright was not a passive–dependent personality, or by proving specific instances in which she did not
believe those who were close to her.
Although the character evidence issue was not raised in Bright, a number of other cases have addressed the

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issue. For instance, in United States v. Staggs,191 the defendant argued that when he picked up a gun upon
arrival of the arresting agents, he intended to turn it on himself rather than the agents (an argument that, if
believed, would prevent conviction on assault charges, which require a specific intent to harm). In support of
this position, the court permitted a psychologist’s testimony that the defendant was the type of person who
was more likely to be aggressive toward himself than toward others. In other cases, the character evidence has
sought to “reduce” the level of mens rea rather than to negate criminal intent completely. For instance, in
State v. Hallman,192 the court held that expert testimony describing the defendant’s “impulsive personality”
was admissible because it tended to disprove the premeditation necessary for conviction on first-degree
murder charges (but did not prevent conviction on lesser homicide charges, which did not require proof of
premeditation). These cases illustrate the breadth of situations in which character evidence relevant to mens
rea might be introduced. They also illustrate how the character evidence rules can be used to circumvent a
jurisdiction’s limitations on, or rejection of, the diminished capacity doctrine.
It should also be noted that in addition to negating or reducing mens rea, character evidence can be used to
suggest that because the defendant is a certain way (e.g., passive or violent), he or she could not have (or could
have) committed the offense in question. It can also be used to suggest that a person who admits committing
the act with the requisite mens rea nonetheless acted “reasonably,” given the type of person the defendant is
(e.g., a man who cannot bear slights to his manhood). Character evidence used in the first way is meant to
address whether the actus reus occurred and is discussed in the next subsection. Character evidence used in
the second way is used to support an “affirmative defense,” such as self-defense, and is discussed in the
subsection following the next one.

(c) Actus Reus Testimony

In asserting any of the defenses discussed to this point—the insanity defense, the automatism defense, and the
diminished capacity doctrine—the defendant is conceding that he or she committed the conduct connected
with the crime, but is claiming full or partial nonresponsibility due to mental disability. In some cases,
however, the defendant may want to use psychological evidence to suggest that he or she was not even
physically involved in the offense. Thus clinicians have provided character testimony to the effect that the
accused person could not have been the perpetrator. By the same token, the prosecution has often used
psychological evidence to suggest that the defendant could have committed (and therefore did commit) the
act. Finally, in a growing number of cases, evidence from clinicians has been proffered to show that a criminal
act (e.g., rape or child molestation) occurred—proof that, in conjunction with evidence that the defendant had
the opportunity to commit such an act, is meant to suggest that the defendant is a criminal.
A number of cases illustrate the first type of case, in which the defendant denies being the perpetrator. For
instance, in O’Kon v. Roland,193 the court permitted psychiatric testimony that the defendant, charged with
murder, was a passive person and unlikely to commit a violent act. In other cases, the courts have permitted
expert opinion tending to show that a person with the defendant’s personality would not have molested a
child.194 In still other cases, expert testimony to the effect that the defendant was not a violent person has
been permitted to show that the defendant could not have committed rape.195
However, most courts confronted with this type of character evidence have excluded it, usually on the

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plausible ground that the scientific basis for such testimony is weak.196 A well-known case in this regard is
New Jersey v. Cavallo,197 in which the court affirmed the trial court’s exclusion of expert testimony suggesting
that Cavallo was “a nonviolent, nonaggressive person” who did not “fit within [the] mold” of a rapist.
Applying the Frye “general acceptance” test [see § 1.04(c)], the court concluded that the defendants (Cavallo
and his codefendant)

have not met their burden of showing that the scientific community generally accepts the existence of identifiable character traits common to
rapists. They also have not demonstrated that psychiatrists possess any special ability to discern whether an individual is likely to be a rapist.
Until the scientific reliability of this type of evidence is established, it is not admissible.

The second type of actus reus testimony—proof of character to show that the defendant committed the
crime—is limited by the rule, described above, barring prosecution experts’ evidence on character except in
rebuttal to the defendant’s character evidence. For instance, in Minnesota v. Loebach,198 the prosecution in a
child molestation case attempted to show that the defendant was the one who abused the child victim by
presenting testimony that he fit a battering-parent syndrome. The court reversed the defendant’s subsequent
conviction, stating that such testimony would not be admissible unless the defendant first argued that he did
not fit the syndrome. Most courts have followed this lead.199 In at least one case, however, the court
erroneously permitted prosecution character evidence when the defendant had not opened the door on the
issue. In State v. Hickman,200 the defendant, charged with rape, testified that the intercourse had been
consensual; he did not testify to his own character or present any other type of character evidence.
Nonetheless, the prosecution was permitted to present expert rebuttal evidence to the effect that the
defendant fit in “the class of aggressive, antisocial or sociopathic, hatred rapists.” The court’s holding can be
faulted not only for permitting questionable expert testimony, but also for allowing the prosecution to present
character evidence in violation of the “defendant first” orientation of the character evidence rule.
The final category of cases in which clinical testimony may provide information about the actus reus is
when there is some doubt as to whether a crime has occurred. Here the focus of the expert testimony is on the
victim rather than the defendant. For instance, some courts have allowed expert opinion on whether a child
who is suspected of having been abused fits a constellation of factors consistent with being battered.201 Others
have permitted testimony that the alleged victim of rape is suffering from rape trauma syndrome.202 In both
types of cases, nonclinical evidence of the crime is often weak (i.e., in the first type of case because a child is
usually the only witness against the accused person; in the second because there may be no physical evidence
of rape). The syndrome evidence, which usually focuses on whether psychological symptoms associated with
trauma are present, is introduced to support the victim’s story.
One problem with evidence of this type is that the symptoms reported may have resulted from a traumatic
event other than the abuse or rape that is alleged. Most courts have not considered this fact sufficient to
exclude syndrome evidence in cases involving allegedly battered children, because there is usually also physical
evidence of trauma, and the key question is whether it was due to human agency. On the other hand, many
courts are more reluctant to admit rape trauma syndrome evidence and its close relative—evidence that a child
has been sexually abused (as opposed to battered).203 As the court pointed out in People v. Bledsoe,204 the
studies relied on by experts who present rape trauma syndrome evidence are based on reports from counselors
who are trying to help rape victims, not probe the accuracy of the victims’ accounts of the alleged rapes. In

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contrast, the battered-child syndrome derives from studies of children known to be abused. For this among
other reasons the Bledsoe court rejected use of rape trauma syndrome evidence in the case before it. However,
it also stated that such evidence would be admissible to help dispel myths about rape victims, as in cases in
which juries might assume that a delay in reporting an incident meant that the rape did not occur, when in
fact it may have been due to postrape fears of reprisal, exposure, or shame. Many other courts follow Bledsoe’s
lead.205
This latter “dispelling-of-myths” concept is one that judges, lawyers, and mental health professionals might
do well to consider in analyzing the admissibility of clinical testimony based on theories that are not well
accepted or are based on shaky data. If such testimony only confirms what most laypeople would assume,
given the facts, then it should not be permitted (unless it is offered in rebuttal of other expert testimony) [see
§ 1.04(b)]. Such testimony is likely to undercut the fairness of the adjudication, because it will add the
imprimatur of expertise to a concept the jury is already very willing to endorse, and because such testimony is
unlikely to be treated with the skepticism it deserves. If, on the other hand, the opinion seems to lead to
counterintuitive conclusions (e.g., that the defendant did not intend the obvious consequences of his or her
acts—as in the Bright case described in the preceding subsection—or that women with no visible signs of
sexual battery can still have been raped), admission should be seriously considered. Such testimony is unlikely
to be accepted unquestioningly by the factfinder, but at the same time it may serve to counterbalance
inaccurate lay preconceptions.

(d) Self-Defense, Provocation, Duress, and Entrapment

In many cases, defendants admit that they voluntarily committed the crimes with the relevant mental state,
but still assert that they are not guilty, based on what has traditionally been called an “affirmative defense.” An
affirmative defense—such as self-defense, provocation, duress, or entrapment—concedes that the prosecution
has proven its case on the actus reus and mens rea elements, but asserts that some justification or mitigating
factor should lead to acquittal on the offense charged. Traditionally, the defendant bore the burden of proving
an affirmative defense by a preponderance of the evidence. However, with respect to an increasing number of
such defenses, since the Supreme Court’s decision in In re Winship (holding that the prosecution must prove
each element of its case beyond a reasonable doubt),206 the state must disprove the defendant’s claim beyond a
reasonable doubt.207
Until recently, psychiatric testimony was seldom proffered in support of such defense claims. But as the
criminal law has moved toward a subjective definition of culpability, the courts’ willingness to hear expert
clinical testimony on these issues has increased. To illustrate this development and its ramifications, we first
look at self-defense, provocation, and duress. Given its different origins, entrapment is discussed separately.
The traditional approach to self-defense, as summarized by LaFave,208 is as follows: “One who is not the
aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he
reasonably believes that he is in immediate danger of unlawful bodily harm from his adversary and that the use
of such force is necessary to avoid this danger.” In a majority of jurisdictions, a person may use deadly force to
repel an attack that is reasonably believed to be deadly, even if he or she could safely retreat from the attack;
however, in a “strong minority” of jurisdictions, one must retreat before using deadly force if the retreat can be

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accomplished safely. Even in the minority jurisdictions, one need not retreat if the attack takes place in the
defendant’s house, on the theory that one is entitled to stand firm in one’s home. A valid self-defense claim
leads to acquittal on any charge.
The provocation “defense,” on the other hand, is available only in homicide cases and leads to reduction of
the charge from murder to voluntary manslaughter, rather than to acquittal. In most jurisdictions, this
reduction occurs when the defendant can show that (1) the killing was in reaction to provocation that would
cause a “reasonable person” to lose control; (2) this provocation in fact provoked the defendant; (3) a
“reasonable person” so provoked would not have cooled off in the interval between the provocation and the
delivery of the final blow; and (4) the defendant did not in fact cool off. Related to the provocation defense is
“imperfect” self-defense, which recognizes that some types of provocation, although they do not justify the use
of deadly force in return, might make a “reasonable” person impulsively kill someone and thus should be given
mitigating (but not exculpatory) effect. The common law has identified a number of situations in which such
provocation might occur (e.g., use of serious but not deadly force against the defendant, serious assault,
mutual combat not involving deadly force, and discovery of adultery by the offended spouse).209
Finally, the defense of duress is usually recognized for conduct produced by an unlawful threat that causes
the defendant to have a reasonable belief that the only way to avoid imminent death or serious bodily injury
(to him- or herself or to another) is to engage in conduct that violates the criminal law. A duress defense
might succeed, for instance, if a man commits robbery because someone else has threatened to kill him or a
member of his family if he does not. Duress is not normally a defense to intentional homicide, however, since
the rationale for the defense is generally thought to be that acquittal should be permitted only when the
defendant, faced with a choice of evils, chooses the lesser evil.210
It should be clear even from this brief description that under the common law, “reasonable person”
language dominates the definition of these defenses. Use of such language presumably renders mental
abnormality irrelevant, because the reasonable person is the “normal” person as defined by the judge or
members of the jury—a hypothetical actor who cannot, by definition, be mentally disordered. Thus with
respect to the provocation doctrine, for instance, in most jurisdictions “the defendant’s special mental qualities
. . . are not to be considered.”211
Modern developments in these three areas, however, demonstrate an increasing willingness to consider the
personal characteristics of the accused individual in deciding whether a defense is available. The Model Penal
Code is representative of the trend, as indicated by the italicized language that follows (emphasis added).
With respect to self-defense, the Code permits “the use of force upon or toward another person . . . when the
actor believes that such force is immediately necessary for the purpose of protecting himself against the use of
unlawful force by such person on the present occasion.”212 This formulation makes the actor’s beliefs relevant
to a self-defense claim, regardless of how “unreasonable” they are. The provision of the Code that is analogous
to the common-law provocation doctrine (discussed earlier in connection with the diminished responsibility
issue) is somewhat more objectively defined, but still incorporates subjective elements. It states that a
homicide that would otherwise be murder is manslaughter if it “is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse[,] . . . the reasonableness
of such explanation or excuse [to] be determined from the viewpoint of a person in the actor’s situation under
the circumstances as he believes them to be.”213 Similarly, with respect to duress, the Code provides for an

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affirmative defense when a person commits a crime “because he was coerced to do so by the use of, or a threat
to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his
situation would have been unable to resist.” The defense is not available when the “actor recklessly placed
himself in a situation in which it was probable that he would be subjected to duress.”214
To the extent that criminal law defenses are defined subjectively, they increase the potential for clinical
testimony. Consider, for example, the fate of testimony about the battered-spouse syndrome,215 at issue in
Case Study 8.3. Such testimony is “character evidence” (see the discussion in the previous subsections) that
attempts to explain why a woman who has suffered repeated beatings from her spouse nonetheless finds it
difficult to leave him; if accepted, this conclusion, combined with the obvious fact that women have difficulty
responding to physical attacks by men at the time they occur, explains why a woman might kill her spouse
even when she is not “imminently” threatened by him. Most courts that follow traditional self-defense
doctrine are reluctant to allow such testimony, much less permit a self-defense argument based on it; they
reason that a “reasonable person” under the woman’s circumstances would not kill her husband, but rather
would leave the home.216 But courts following a more subjective approach usually permit testimony about the
battered-spouse syndrome in homicide cases, because it supports the woman’s assertion that, in the words of
the Model Penal Code, “the actor believe[d] that such force [was] immediately necessary for the purpose of
protecting [her]self against the use of unlawful force by such person on the present occasion.”217 In other
words, the subjective approach allows testimony that explains how a reasonable battered spouse would react in
the given situation.
Similarly, subjectifying provocation and duress can expand the mental health professional’s role as expert.
Two examples will suffice. In Bedder v. Director of Public Prosecutions,218 an English case, the defendant was
an 18-year-old boy who was impotent and apparently emotionally distressed about his condition. On the
night of the offense, he attempted in vain to have sex with a prostitute, who then taunted him and tried to
leave. He grabbed her shoulders, at which point she kicked him in the groin. The defendant then knifed her
twice in the abdomen. The court instructed the jury that it could find provocation only if a “reasonable person,
an ordinary person,” not one who “is sexually impotent,” might react in this way, and the defendant was
convicted of murder. Under a more subjective approach (as provided in the Model Penal Code, for instance),
looking at the “reasonableness of the [actor’s] explanation or excuse . . . from the viewpoint of a person in the
actor’s situation under the circumstances as he believes them to be” might have produced a different result. In
United States v. Hearst,219 the defendant (who had been kidnapped and forced, under threat of death, to
participate in a robbery) explained that she had continued to participate in criminal activities after the robbery,
despite the absence of further direct threats, because she had been “brainwashed” by the kidnappers. Although
the common-law definition of duress would not countenance the latter claim, one could construct an
argument under the Model Penal Code formulation that “a person of reasonable firmness in [Hearst’s]
situation” might have been coerced by the kidnappers’ blandishments. In short, in contrast to the insanity
defense and related defenses—where the assertion is that mental abnormality should lead to exculpation—
duress permits a “normal” person to argue that an abnormal situation should lead to exculpation.
From the clinical perspective, the entrapment defense raises an issue similar to duress, except that the third
party who induces the crime must be a government agent and the coercion need not be as significant. Unlike
the three doctrines already discussed, entrapment doctrine in most jurisdictions has always been subjectively

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defined; specifically, the issue has been whether the defendant was “predisposed” to commit the crime. If the
individual is predisposed, the entrapment defense fails. But if the defendant can show an absence of
predisposition, the defense may be successful, at least when it can also be shown that the government’s actions
induced the defendant to commit crime.220 Here again, clinical testimony about the defendant’s “character”
might be viewed as relevant to culpability, and many courts have so held.221
As these cases illustrate, subjectification of the defenses—whatever its justification on moral grounds—
creates the potential for turning virtually every criminal case into a psychiatric one, replete with battles of the
experts and confusing psychojargon. Many legislatures and courts have resisted this development, either by
refusing to adopt the subjective approach to defenses, or (if the subjective approach has been adopted) by
concluding that clinical testimony is relevant only on the insanity issue.222 In those jurisdictions that have
instead permitted clinical testimony relevant to the affirmative defenses, clinicians have an ethical obligation
to ensure that their testimony is based on solid ground. As already suggested in the discussion concerning
actus reus testimony, one consideration clinicians might take into account in assessing this obligation is
whether their testimony helps to dispel “myths” likely to be held by laypeople (e.g., that battered women find
it no more difficult than other people to leave their spouses). Another consideration, treated in more detail in
§ 7.07(d)(1), is whether the clinical testimony is merely an endorsement of the defendant’s claim (e.g., in
Bedder, about how the defendant’s impotence affected his reaction), rather than an “expert” opinion based on
specialized knowledge independent of the claim. Finally, clinicians and lawyers should be aware that when
such defenses are raised, they will probably not fare well. Kirschner and Galperin reported that in New York,
diminished responsibility defenses in homicide cases virtually never succeed when the prosecution contests the
issue: The defense prevailed in 11 of 28 cases studied, but in 10 of those cases the state did not contest the
claim.223

(e) Defenses Based on Intoxication

Like mental illness and intellectual disability, intoxication—either by alcohol or by narcotic drugs—can form
the basis for an insanity defense, an automatism defense, or a mens rea defense. Whether it supports any of
these defenses, and if so, which one it supports, will depend on whether the intoxication is “voluntary,”
“involuntary,” or the result of long-term addiction or use.
“Voluntary” intoxication is intoxication of a nonaddicted individual produced by drinking on one occasion.
Because it is self-induced and temporary, it is seldom given complete exculpatory effect. It is well established
that unless substance abuse has been prolonged to the point where it has produced “settled insanity” (i.e., a
bona fide organic mental disease or defect that has become a chronic condition), the insanity defense will not
be an option.224 This stance is generally taken even when the intoxicant is a drug that produces psychotic-like
effects. For instance, in State v. Hall,225 the court upheld the trial court’s refusal to give an insanity instruction,
even though the testimony indicated that the defendant’s ingestion of LSD caused him to believe that his
driving companion (whom he shot) was a rabid dog. The majority adhered to the traditional rule that “a
temporary mental condition caused by voluntary intoxication . . . does not constitute a complete defense.”
Similarly, proof that alcohol rendered a person “unconscious” at the time of the offense is likely to receive a
hostile reaction from the courts.226

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 Although voluntary intoxication seldom supports either an insanity or an automatism defense, it can often
support a defense analogous to a diminished capacity claim. In many states, evidence of voluntary intoxication
is considered relevant on the issue of whether a defendant charged with first-degree murder premeditated the
crime. Several states also permit such evidence if it is offered to prove that a defendant did not possess the
mens rea for other crimes involving specific intent.227
Some might wonder why voluntary intoxication should be given any mitigating effect; after all, the
defendant intentionally chooses to drink, knowing that drinking can loosen inhibitions and self-control.
Robinson has articulated a theory that tries to explain the common-law approach.228 He compares the
voluntary intoxication scenario to accomplice liability, with the “accomplice” being the defendant at the time
he or she decides to drink, and the “principal” being the defendant at the time of the crime. Just as a person is
not considered an accomplice to a crime unless he or she aids and abets its perpetrator, a person who drinks
without intending the consequences of the drinking is not culpable for those consequences. Under this
approach, a person who drinks in order to fortify him- or herself for a murder is liable for homicide. But the
more typical person who is not aware of the risk that the drinking will contribute to crime should not be
denied the appropriate defense if and when the drinking results in a lack of mens rea or conscious control of
the person’s behavior. Note that this is the same analysis applicable to situations in which a person with a
mental disability fails to take medication, or a person subject to seizures drives a car. If the decision (to forgo
medication or to drive) results in harm, at most the person should be guilty of “general intent” (i.e., objectively
defined) crimes, unless he or she intended or foresaw the decision’s eventual consequences.
To these arguments could be added the claim that prohibiting evidence tending to show a lack of mens rea
is a violation of due process [see § 8.03(b)]. Nonetheless, in Montana v. Egelhoff,229 a plurality of the Supreme
Court held that because the defense of voluntary intoxication was of relatively “recent vintage,” it is not so
fundamental that a state statute prohibiting it is unconstitutional. The plurality also noted that elimination of
the defense might serve as a deterrent to drunkenness and associated irresponsible behavior—a position
supported by research indicating that drunken individuals are violent in part because they believe that they
should be, not because they lack the requisite mens rea.230
Partly as a result of Egelhoff, a number of states have eliminated the voluntary intoxication defense.231 Even
in those states that retain it, the defense is seldom successful. Indeed, one commentary concluded that
“[i]ntoxication defenses are essentially unavailable as currently construed.”232
Courts are much more lenient in the relatively rare cases involving “involuntary” intoxication. Such
intoxication occurs when a defendant is tricked into ingesting drugs or alcohol, or otherwise unknowingly
takes the substance. Also conceivably falling into this category are cases of “pathological” intoxication, where a
defendant knows what has been taken, but the substance produces an atypical and excessive reaction that the
defendant could not have foreseen.233 If involuntary intoxication produces psychotic symptoms, makes it
impossible for the defendant to form the mens rea for the crime, or renders the defendant’s criminal act
“automatic,” courts will generally require acquittal of the crime charged;234 the limitations imposed on
evidence of intoxication that is voluntary do not apply in such a situation, due to the accused person’s
underlying innocence with respect to the initial ingestion of the substance.
A final type of intoxication, which may be seen as either voluntary or involuntary, is that resulting from
chronic use of psychoactive substances. Some courts have held that persons with alcohol or drug addictions are

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impelled to drink or use drugs, and that any use of such substances is thus “involuntary” in nature.235 If this is
true, then chronic users of psychoactive substances who can show that, due to intoxication, they did not
appreciate the consequences of their act, lacked conscious control of their conduct, or lacked the mens rea for
the crimes charged will be acquitted of those crimes, as in other cases of involuntary intoxication. Most courts,
however, have been reluctant to accept this interpretation of addiction, with the result that these cases are
most often analyzed as situations involving voluntary intoxication.236 Even in these jurisdictions, however,
persons with severe, chronic alcohol or drug use may be able to prove that their substance abuse has caused a
“mental disease or defect,” which in turn resulted in significant cognitive or volitional impairment at the time
of their offenses. It is in these cases that a claim of “settled insanity” is most likely to be accepted.237

(f) “Guilty But Mentally Ill” Plea

Since 1976, at least 12 states have passed statutes authorizing the factfinder to return a verdict of “guilty but
mentally ill” (GBMI).238 Although there are many different versions of the GBMI concept, most proposals
work basically as follows: A defendant who pleads NGRI may be found not guilty, guilty, insane, or (as a final
alternative) GBMI at the time of the offense. If the jury makes the last-mentioned finding, the defendant may
be sentenced to any term appropriate for the offense. Thus jurors in insanity cases are given three sets of
instructions with respect to the ultimate verdict they may reach: One explains under what circumstances a
defendant may be found guilty of the crime charged; one describes the state’s test for insanity; and one
informs the jury when a defendant who is guilty beyond a reasonable doubt and not insane may be found
GBMI. The definition of mental illness found in the last of these instructions varies from state to state, but
usually borrows heavily from the definition of mental illness in the state’s civil commitment statute. In
Michigan, for instance, the definition is taken directly from the mental health code and states that mental
illness is “[a] substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity
to recognize reality, or ability to cope with the ordinary demands of life.”239
The GBMI verdict is to be distinguished from proposals for replacing the insanity defense (as well as all
other clinical defenses) with a “guilty but insane” verdict.240 This proposal, which prohibits evidence of
clinical testimony until the second phase of trial, has not been adopted by any state. As noted in § 8.02(b),
four states have abolished the insanity defense. But in each of these states, clinical testimony relevant to mens
rea (i.e., diminished capacity) is still admissible.241 The mens-rea-only approach has been upheld against
constitutional challenge by at least four courts.242 But the “guilty but insane” proposal, to the extent that it
would give no mitigating effect to evidence of mental illness, on either insanity or lack-of-mens-rea grounds,
is probably unconstitutional [see § 8.03(b)]. In contrast, the GBMI scheme has been upheld against due
process challenges.243
Proponents of GBMI statutes do not wish to eliminate the insanity defense. However, by offering jurors a
compromise verdict that ensures prolonged incarceration of people who are dangerous and mentally ill, they
do hope both to reduce insanity acquittals and to provide greater protection to the public. Whether the verdict
is any better than the traditional system at accomplishing these goals remains unclear. Research suggests that
the verdict may actually increase insanity acquittals by encouraging defendants to raise the plea in the hope of
at least obtaining a GBMI verdict.244 Nor is the duration of a given individual’s confinement likely to be

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increased by a GBMI verdict: As noted previously, a person found GBMI receives the same sentence as a
person convicted outright of the same crime—a term of confinement that in turn is usually equivalent to the
detention received by a person found NGRI for the same crime [see research described in § 8.02(a)].245
Even assuming that the GBMI verdict reduces insanity acquittals and results in longer confinement,
however, it is a questionable reform for two reasons. First, the verdict creates a significant potential for jury
confusion and abuse, given the similarity between its definition of mental illness and the definition of insanity
(compare, e.g., the definition of mental illness under Michigan’s GBMI statute set out above with the
language of the ALI rule, which is the test for insanity in Michigan). Jurors who see little difference between
the competing terminologies may choose the GBMI verdict solely because they think it results in longer
confinement, better treatment, or both. Even if these two assumptions about the effect of the verdict were true
(which, as discussed above and below, they are not), this reasoning might well result in improper conviction of
a person with a valid insanity defense.246 Unfortunately, there is probably no way to define mental illness so as
to avoid this result and still meaningfully distinguish between “normal” offenders and noninsane but mentally
ill offenders.
Second, and more important, the GBMI verdict is deficient because it is not a proper “verdict” at all. It is
neither a device for assessing criminal responsibility, as is the insanity defense, nor a method of grading
culpability, as is the doctrine of diminished capacity. Thus, as noted, those found GBMI receive sentences
similar to those found guilty of the same crimes; indeed, several defendants found GBMI have been sentenced
to death.247 At the same time, because the finding of mental illness associated with the verdict relates to the
time of the crime rather than the time of disposition, the GBMI verdict generally should not have (and in fact
usually does not have) any effect on conditions of confinement, either; indeed, only one state requires that an
offender found GBMI be put in a hospital.248 Judicial instructions, found in some states,249 telling the jury
that those found GBMI are guaranteed treatment not afforded those found guilty are misleading for two
reasons. First, in reality many offenders found GBMI who need treatment do not receive it,250 and courts and
legislatures have been unwilling, usually for financial reasons, to rectify this situation.251 Second, providing
treatment to offenders found GBMI that is not provided to other mentally ill offenders would raise serious
equal protection concerns; indeed, every state, including those with GBMI statutes, has long had a statute
providing for the hospitalization of all prisoners who require inpatient care.252
In short, the GBMI verdict is conceptually flawed, has significant potential for misleading the factfinder,
and does not appear to achieve its goals of reducing insanity acquittals or prolonging confinement of offenders
who are mentally ill and dangerous. The one goal it may achieve is relieving the anxiety of jurors and judges
who otherwise would have difficulty deciding between a guilty verdict and a verdict of NGRI.253 It is doubtful
that this goal is a proper one or is worth the price. Furthermore, to the extent that the difficulty of the
decision results from a fear that those found insane will “walk,” instructions to the effect that a person found
insane is to be confined indeterminately until no longer insane or dangerous would alleviate the factfinder’s
burden. Perhaps for these reasons, interest in the GBMI verdict has waned.254

8.04. RESEARCH ON THE RELATIONSHIP OF DIAGNOSIS TO MSO DEFENSES

CASE STUDY 8.4

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The defendant is charged with the murder of his girlfriend. The defense attorney admits that his client killed the victim, but intends to
assert a defense of insanity based on epileptic seizure. The defendant reports amnesia for his behavior during the time of the incident, and
electroencephalographic (EEG) testing is interpreted as displaying some “mild abnormality.” The victim was shot once at close range in her
home. After being shot in the dining room, her body was stashed under the basement stairs and covered with a blanket. The telephone in
her hallway had been ripped out of the wall. Third-party sources also indicated that the defendant was jealous that the victim had also been
seeing a married man; a week before the murder, the defendant had reported this affair by phone to the man’s wife.

Questions: (1) What third-party information would be valuable in a case such as this? (2) How long do seizures typically last, and what
does violence manifested during a seizure usually look like? (3) What are the implications of the fact that only a single bullet was fired?

CASE STUDY 8.5

You have been appointed by the court to evaluate Sharon Tonlam, who has been accused of second-degree murder. The state alleges that
Ms. Tonlam killed her long-time boyfriend, Joseph Blake, while he was asleep. Mr. Blake was found shot to death in bed, in the motel room
that he shared with the defendant for three weeks. Ms. Tonlam was found walking aimlessly along the beach approximately two hours after
the motel maid found the body. When initially questioned by the police, Ms. Tonlam neither denied nor admitted killing Mr. Blake, but
instead reported that she had little memory for the event. She also claimed to have been in a fog for a good deal of the time preceding and
following the death of her boyfriend. When informed about the death of the boyfriend, Ms. Tonlam became hysterical and was admitted to
the local Crisis Stabilization Unit. A gun with her fingerprints was found in a trash can on the beach, and she was later charged. The public
defender is considering an insanity defense; you have been appointed by the court to conduct the evaluation of MSO. Ms. Tonlam
previously underwent inpatient treatment at a university-based psychiatric hospital, where she received a diagnosis of dissociative identity
disorder (DID) [see § 8.03(a)].

Questions: (1) How will you go about the evaluation? (2) What kind of third-party information will you seek? List, in order of
importance, the types of third-party information you think are most necessary or will be most helpful. (3) How will you structure your
interview and evaluation with Ms. Tonlam? Will you follow a certain plan? (4) Will you request that any diagnostic testing (neurological,
psychological) be completed? If so, what would you request, and how do you think this will be helpful? What do you expect to find? (5) If
you establish the DID diagnosis, and it appears that an “alter personality” committed the offense, what are the implications for the clinical
opinion?

This section looks at the types of clinical phenomena that have been associated with the insanity defense and
other MSO defenses. It first examines research that describes the correlation between various well-known
diagnoses and the insanity defense. It then looks at research on a number of relatively novel disorders or
syndromes that, although unlikely to form the basis for an MSO defense, have been raised as exculpatory
conditions often enough to merit close analysis of their relevance.

(a) Diagnosis Generally

Research examining the results of court-ordered evaluations has consistently found that clinical support for
claims of insanity typically (although by no means overwhelmingly) rests on findings that the defendant
suffered from symptoms of a debilitating psychiatric condition at the time of the alleged offense. In a study of
617 cases referred for insanity evaluation in Virginia, Warren and her colleagues found that schizophrenia
(28%), affective disorders (15%), and intellectual disabilities (11%) were the most commonly reported
diagnoses associated with opinions supporting an insanity claim.255 A subsequent multistate study showed
that schizophrenia, organic disorders, and other psychotic disorders were most commonly the basis for MSO
opinions favorable to the defense.256 Psychoses (40%), mood disorders (10%), and intellectual disabilities
(20%) also accounted for most NGRI recommendations in a large sample of federal pretrial evaluations.257

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This same body of research suggests that diagnoses of substance use and personality disorders are least likely
to lead to clinical opinions that favor an insanity verdict. All these findings come from studies that
investigated the reports of court-ordered examinations in which the clinicians were selected and employed by
the court, not the prosecution or the defense. How well they would generalize to evaluations conducted by
independent practitioners is not clear.
Research on the diagnoses of those people found NGRI by courts (as opposed to evaluators) reaches
similar results, which should not be surprising, given the key role that forensic evaluations of MSO play in
insanity adjudications. Table 8.1 displays various characteristics of individuals found NGRI in Michigan (two
samples), New York (two samples), California, Georgia, Connecticut, and Oklahoma.258 The “typical” patient
found NGRI is a male charged with a violent offense who, as likely as not, has a record of prior psychiatric
hospitalization. In six of the seven samples for which racial breakdowns were available, the majority of NGRI
acquittees were white; however, when population base rates are taken into consideration, blacks were
overrepresented in some of these samples.259 A possible explanation comes from a more recent study of
insanity acquittees in Kentucky, which suggests that black race was a factor in favor of an examiner’s
supporting an insanity defense.260

TABLE 8.1. NGRI Characteristics: Findings from Eight Studies

Note. All figures are percentages. *Data not provided.

a
Ranges are given where the study examined different NGRI samples, before and after some NGRI reform.
b
For the first three studies, “violent” includes homicides and assault. For the last five studies, “violent” includes homicide, assault, rape, arson,
and kidnapping.
c
Defendant was incompetent for trial for the NGRI offense.

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 Of most relevance for present purposes, these data also suggest that suffering from a psychosis is usually
required for the insanity defense to succeed.261 Although Table 8.1 indicates that a substantial percentage of
insanity acquittees do not suffer from psychoses, this represents a very small fraction of all defendants who
might have nonpsychotic diagnoses. Along with the relatively low success rate for the insanity defense even on
those unusual occasions when it gets to a jury [see § 8.02(a)],262 this information provides some comfort to
skeptics who view the defense as a scam allowing criminals to “beat the rap.”
Few systematic studies have examined data relating diagnoses to successful automatism, diminished
capacity, or other defenses described earlier in this chapter. In their study of 24 defendants who successfully
asserted an “extreme emotional disturbance” (EED) defense in New York, Kirschner and colleagues
concluded that psychoses and other severe mental disorders did not figure prominently; only 16 defendants
had a prior psychiatric diagnosis, and only 1 appeared to haved been receiving treatment at the time of the
offense.263 Kirschner and colleagues also concluded that successful and unsuccessful EED cases were not
distinguished on the basis of clinical diagnostic information,264 but that “the quality and/or the intensity of
the defendant’s emotion at the time of the crime could certainly play a critical role in determining the
outcome of the case.”265 In studies that examine correlations between the GBMI verdict and diagnosis, it
appears that most of those found GBMI have personality disorders;266 this reaffirms the assertion made
earlier [see § 8.03(f)] that the verdict probably does little to reduce insanity acquittals, but instead merely
provides another label for those who are guilty of the offense charged.

(b) Epilepsy

Occasionally defendants will assert an MSO defense based on a diagnosis of epilepsy, particularly in cases
involving assaultive crimes. The National Institute of Neurological Disorders and Stroke’s Epilepsy
Information Page explains:

In epilepsy, the normal pattern of neuronal activity becomes disturbed, causing strange sensations, emotions, and behavior or sometimes
convulsions, muscle spasms, and loss of consciousness. The epilepsies have many possible causes and there are several types of seizures. . . .
Epilepsy may develop because of an abnormality in brain wiring, an imbalance of nerve signaling chemicals called neurotransmitters, changes
in important features of brain cells called channels, or some combination of these and other factors. . . . Only when a person has had two or
more seizures is he or she considered to have epilepsy.267

The classification of seizures has undergone several changes since the first edition of this book was
published,268 and as etiological understanding and diagnosis improves, further revisions are likely.269 The
most recent (2010) official classification system contains three large groups: “generalized seizures” (involving
the entire brain), “focal seizures” (involving a portion thereof), and “unknown.”270 Generalized seizures come
in six large subtypes, the best known (to laypersons) being “grand mal” or “generalized tonic–clonic” seizures,
episodes of which involve loss of consciousness, diffuse convulsions, and muscle rigidity. The other subtypes
of generalized seizures are “absence” (characterized by brief losses of consciousness), “myoclonic” (involving
sporadic, isolated jerking on both sides of the body), “clonic” (repetitive, rhythmic jerking on both sides),
“tonic” (stiffening of muscles), and “atonic” (sudden, generalized loss of muscle tone).271 Focal seizures may or
may not involve some impairment of consciousness.272
Although the 2010 classification scheme did away with terminology that distinguished between “simple”

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partial seizures (without impairment of consciousness) and “complex” partial seizures (involving altered
consciousness), it should be noted that what would now be diagnosed as a “focal seizure with impairment of
consciousness” corresponds roughly to what previously classifications called a “complex partial seizure”273—
the type of seizure of greatest significance for legal purposes. This type of seizure may last one to several
minutes and is characterized

by some ‘impairment’ of consciousness, ranging in severity from the slightest degree of confusion to a more or less profound stupor. . . .
Although, in some cases, the seizure manifests with this impairment of consciousness alone, one will in most cases also see a ‘motionless
stare’ and/or automatisms. . . . Automatisms range in complexity from such simple, stereotyped behavior as lipsmacking or chewing to highly
complex activity, which is, to a greater or lesser degree, “reactive” to the environment. Such reaction automatisms may consist of a more or
less faithful continuation of pre-ictal behavior or may represent behavior, which, although still reactive to the environment, represent a break
with the patient’s pre-ictal behavior. . . . Patients are subsequently totally, or sometimes only partially, amnestic for the events that occurred
during the seizure.274

These kinds of seizures are probably most likely to be relevant to a criminal defense, particularly in cases
involving seemingly unprovoked or senseless violent offenses. Indeed, the medical literature contains many
case reports of epilepsy-based claims, which, though far from universally successful, sometimes led to insanity
verdicts.275 At the same time, however, all available research suggests that such cases should be rare, because
the relationship between aggression or “directed” violence and most forms of epilepsy is tenuous, especially
during the seizure itself. Clinical observations have suggested that the incidence of aggressive behaviors with
seizures is about 1 in 1,000, and that when aggression was observed, it “appeared suddenly, without evidence
of planning, and lasted an average of 29 seconds. . . . Aggressive acts were stereotyped, simple, unsustained,
and never supported by consecutive series of purposeful movements.”276 The medical literature is consistent in
emphasizing “the extreme rarity of directed aggression during seizures and the near impossibility of
committing murder or manslaughter during random and unsustained psychomotor automatisms.”277
Experts who have studied cases of video-recorded attacks during known seizures allow for the possibility
that “more harmful acts of aggression could characterize the automatisms of criminals with epilepsy or
violence-prone patients with psychoses and epilepsy.”278 But such findings are likely to be rare if, as an
international panel recommends, the following five criteria for deciding when a specific criminal act was the
result of a seizure are closely adhered to: (1) A diagnosis of epilepsy should be made by a neurologist with
expertise in epilepsy; (2) epileptic automatisms should be documented using closed-circuit television and
simultaneous EEG recordings; (3) aggression during a seizure should be verified by a video-recorded seizure
in which epileptiform patterns also appear on the EEG; (4) the aggressive act should be typical of the patient’s
seizures as described in the clinical history; and (5) the neurologist should attest to the possibility that the
alleged offense occurred during a seizure.279
Aggressive behavior occurs more frequently—though it is still quite unusual—during the postictal period
(i.e., immediately after the seizure). During this period, individuals are confused but relatively interactive with
the environment, and aggression typically occurs during misinterpreted efforts to restrain the individuals or
offer them medical assistance.280
Finally, up to one-tenth of patients with epilepsy may experience postictal psychosis that begins hours to a
few days the seizure, and that may evolve from postictal confusion or lucid states. Such states have a tendency
to recur in certain individuals and last for days or weeks. In contrast to the poorly directed and motiveless

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behavior during ictal or postictal periods, these states bear a greater likelihood for well-directed violent
behavior.281 For example, a report by Kanemoto and colleagues showed that “well-documented violent
attacks” resulting in severe injury occurred mainly during a postictal psychosis; mere postictal confusion
mainly led to resistive violence.282 These attacks are also rare.283
Although the available medical literature suggests that claims that seizures caused violence or other
criminal behavior deserve skepticism, a caveat is in order. For ethical and practice reasons, documenting an
instance of purposeful, organized violence associated with epilepsy is difficult, and “absence of proof is not
necessarily proof of absence” of goal-directed ictal aggression.284 Most published studies reflect selection bias,
in that they have taken place in tertiary referral centers, examined unusual patients with other significant and
behavioral problems, and lacked adequate controls for possible confounding factors that could affect
behavior.285 A temporal relationship between a seizure and onset of psychosis, plus other evidence of
preexisting central nervous system injury (which is a risk factor for postictal psychosis286), may provide some
support for positing a relationship between the intentional behavior and epilepsy.
The medical literature also contains numerous reports of potential relationships between numerous other
disorders and epilepsy or epileptiform EEG activity.287 But with the exception of one type of childhood
epilepsy associated with borderline personality disorder,288 “the existence and specificity of an ‘epileptic
personality’ and the literature surrounding this topic [remain] controversial.”289 Although a wide variety of
features are said to characterize the disorder,290 they appear to have limited relevance to the development of
MSO formulations.291
In short, epilepsy will rarely give rise to a successful MSO defense.292 When it does, it is most likely to do
so in one of three ways. An assault that resulted from the uncontrollable flailing of arms or legs during a grand
mal seizure might be excused on either insanity, automatism, or mens rea grounds (with automatism being the
best fit conceptually, given the lack of conscious control over the body [see § 8.03(a)]). A crime might also
result from the automatisms during a postictal period if the defendant, although partially conscious at the time
of the alleged offense, exhibited robot-like behavior (volitional impairment) and experienced transient deficits
in processing or meaningfully reflecting on incoming stimuli (cognitive impairment), thus raising the
possibility of an insanity or automatism defense. Finally, if aggression occurred during the interictal period in
someone who also experienced a psychosis, this might provide a basis for an MSO defense along more
conventional lines.
In performing evaluations of those alleged to have epilepsy, clinicians will want to guard against
unwarranted attributions of violence to an epileptic state. In this regard, clinicians should consider the criteria
suggested by Hindler:

The person has a history of unequivocal epileptic attacks.

The crime is out of character with the accused’s previous personality.
The alleged offense was motiveless and unpremeditated.
EEG studies are compatible.
The person experienced an altered state of consciousness during the event.
There is total or partial amnesia for the alleged offense.293

A clinician must also be wary of “overselling” medical tests, such as an abnormal EEG obtained after the

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alleged crime occurred. Attempts to infer the presence of insanity or automatism solely based on such tests
betray a mistaken emphasis on psychophysiological measures. The associated psychological conditions—
thoughts, feelings, motivational states—constitute the proper focus of these determinations.

(c) Hypoglycemic Syndrome

Another defense theory occasionally encountered in court (e.g., in Dan White’s “Twinkie defense” murder
trial in San Francisco) is based on mental aberrations caused by hypoglycemia, or abruptly low blood glucose
(a type of sugar). Although the brain can and will run on ketones during prolonged fasting, starvation, or very-
low-carbohydrate diets, it usually depends on glucose as its primary energy substrate.294 When the blood
glucose level drops too quickly (a situation to which individuals who take insulin and certain other drugs are
particularly vulnerable), mental symptoms may occur, including confusion, disassociation from the
environment, and unusual behavior such as aggression or automatisms. Individuals may look normal while
having these episodes, which can occur without a person’s knowing that an episode is occurring or what is
causing it. During hypoglycemic periods, individuals often retain some ability to perform complex and
intentional motor tasks, though after the episodes resolve, individuals may not remember what they did.295
Claims of hypoglycemic dysfunction may give rise to a claim of either insanity or (as appears to be more
common outside the United States296) automatism. Among the issues with which the court will be concerned
—and therefore which the clinician conducting an examination regarding mental state and culpability should
address—is whether the alleged offender should have recognized an episode was impending and was aware
that he or she was susceptible to such episodes (e.g., through previous, similar experiences).297 Marks suggests
that the following indicia point to the probability (without necessarily proving) that an individual’s behavior
was due to hypoglycemia’s effects on the nervous system:

Presence of factors known to predispose to hypoglycemia, and more especially of hypoglycemia

unawareness.
Evidence that the suspect had taken insulin or another potential hypoglycemia-producing drug at a time
relevant to the incident.
A rapid and complete change in the patient’s demeanor after ingesting or receiving sugar.
Amnesia for the events immediately preceding, during, and immediately after the event.
Apparently motiveless and very uncharacteristic behavior.298

(d) Dissociative States

Among those psychiatric conditions having potential legal relevance in reconstructive defenses, none is more
perplexing or poorly understood than those falling under the heading of dissociative disorders. The ambiguity
of the clinical criteria for these disorders makes application of legal doctrine particularly difficult.
DSM-5 contains a diagnostic group of “dissociative disorders,” all of which involve disrupted or
discontinuous consciousness, personality functioning, bodily sensations, movements, and behavior.299 DSM-5
lists five dissociative diagnoses, of which dissociative identity disorder (DID), formerly called MPD, has
received the most attention in court cases and legal circles [see § 8.03(a)].300 To receive a diagnosis of DID,

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an individual must manifest two or more distinct personality states (or what might be interpreted in some
cultures as an experience of possession) and recurrent episodes of amnesia.
The distinctive experiences of an individual with DID typically include (1) recurring, unexplained
intrusions into conscious functioning and sense of self, such as experiencing others’ voices, thoughts, or
emotions, or dissociated actions and speech; (2) an altered sense of self (i.e., a sense that one’s attitudes,
preferences, body, thoughts, or actions are not one’s own or are outside one’s own control); (3) odd changes of
perception, such as feeling detached from one’s mind or self while cutting oneself, or similarly detached from
one’s surroundings; and (4) intermittent neurological dysfunction that has no anatomical basis, such as
nonepileptic “seizure” episodes or periods of medically unexplainable paralysis (which are more prominent in
non-Western countries).301
The amnesia associated with DID typically displays itself in one of three ways: (1) gaps in remote
autobiographical memory, such as lack of memory for large parts of childhood, getting married, or giving
birth; (2) memory lapses for things such as what happened the previous day or for well-learned skills (e.g.,
how to use a computer or drive); and (3) encountering evidence of everyday actions with no memory of doing
them (e.g., finding objects among one’s possessions or unrecalled injuries, or “coming to” in the midst of an
activity, such as suddenly finding oneself at work or at home in bed with no memory of how one got there).
The latter experience is attributable to an alteration of behavior and consciousness termed a “dissociative
fugue.”302
Individuals with DID commonly try to hide or minimize the problem, but they also may not fully realize or
grasp what they are experiencing. Discontinuities in identity and memory experienced by these individuals are
not always easy to detect, because their behavior and speech remain organized and directed toward logical
ends. Their problems become evident to others, however, when they do not remember something they did or
said, or do not recognize or remember the names of family members or close friends.303
Claims of DID have been controversial, particularly in the last portion of the 20th century.304 But
descriptions of multiple personality states appear in medical literature going back centuries,305 and more
recent research has demonstrated both its occurrence around the world and its association with traumatic
experiences and posttraumatic stress disorder. In discussing “myths” about DID that are common in
professional circles, Brand and her colleagues claim that research backs up the following assertions:

Using structured instruments, well-trained clinicians can diagnose persons with DID reliably and
differentiate this condition from others.306
Proper treatment (i.e., psychotherapy that is consistent with expert recommendations) helps individuals
with DID.307
The diagnosis (and underlying condition) is not confined primarily to North America, as some authors
have stated; nor is it diagnosed only by clinicians with a special interest in DID.308
DID is not rare and is not overdiagnosed or “created” by therapists who induce vulnerable patients to
believe they have DID. If anything, the condition is underdiagnosed because of clinicians’ skepticism
about the condition and its existence.309

In clinical and epidemiological (i.e., nonforensic) settings, symptoms are often quantified by using the
Dissociative Experiences Scale,310 and accurate diagnosis is possible with the Structured Clinical Interview for

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Dissociative Disorders—Revised311 and the Dissociative Disorders Interview Schedule.312
A growing number of medical and psychological publications discuss dissociation and DID among
offenders. One study of 42 prison inmates in New Zealand documented the presence of DID and severe
childhood abuse based on analysis of “medical, psychiatric, social service, school, military, and prison records,”
“records of interviews with subjects’ family members and others,” and “[h]andwriting samples” (showing
different “identities”).313 According to the authors, their study and other studies suggest that some clinical
phenomena interpreted as psychosis might represent dissociation related to childhood trauma.314 A study
from Turkey that examined men admitted to an outpatient military psychiatric unit reported that subjects
with antisocial personality disorder commonly reported dissociative symptoms, and these were more likely if
they also reported experiences of childhood trauma.315 A third study found that dissociation is also common
in women offenders;316 a fourth study examined the psychometric properties of the Dissociative Experiences
Scale, using a large (n = 1,515) group of offenders;317 and a fifth linked intimate-partner violence, DID, and
childhood maltreatment.318 Although an older study did find that a dissociative disorder was diagnosed at the
time of the offense in only 13 of 3,520 cases (0.4%) evaluated for MSO, the forensic examiner supported the
insanity defense in 4 (31%) of those cases—a rate higher than for any other diagnosis.319
In deciding whether a DID claim is a valid basis for an MSO-based defense, several considerations deserve
emphasis. First, many offenders report having dissociative experiences during commission of violent acts. For
instance, many violent offenders (study estimates range from 6 to 77%, depending on the criteria used) report
having dissociative symptoms320 or experiencing depersonalization321 (feeling as though one is “watching
oneself” or is “disconnected” from one’s behavior) during their criminal acts. Men who have been violent
toward their partners commonly report experiences of depersonalization.322 Up to 90% of police officers
involved in critical shooting incidents report having experienced dissociative symptoms.323 According to
DSM-5, up to half of adults experience at least one episode of depersonalization or derealization that last
hours to days.324 For this reason, dissociation by itself at the time of an alleged offense may more often be “a
normal response of some criminals to the traumatic events they create” than an MSO defense.325
A second consideration is that DID in adults is a chronic or recurring condition, indications of which will
usually have been observed over time by third parties who have been close to the alleged offenders. In the
absence of such history, clinicians should be cautious in claiming the presence of DID symptoms. Third, DID
as a basis for an MSO formulation makes more sense in scenarios involving reactions to acute situational stress
than in scenarios that reveal careful preparation or extensive cooperation and planning with coperpetrators.
Fourth, dissociative states should also be distinguished from the effects of drug and alcohol use. Gathering
and reporting third-party data describing any past “blackouts” and the defendant’s behavior immediately prior
to and during the alleged offense will be of considerable assistance in this regard. Fifth, many persons believed
to have genuine DID can appear to be psychotic or malingering when evaluated with standard psychological
tests. Researchers are continuing efforts to refine test endorsement patterns that distinguish genuine DID
from feigning, though such efforts have generally used participants simulating malingering and other
nonforensic populations.326
Clinicians who report on and testify about DID should avoid philosophical and moral judgments about
responsibility. Consider, for example, an alleged crime committed by an individual who genuinely presents
two identities. The clinician may describe the relevant behavior and dynamics of the two personalities, and

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perhaps even characterize their presence, psychometrically or otherwise.327 It remains for the legal system,
however, to determine whether the focus should be on the functioning of a particular personality (e.g., the one
in “control” at the time of the offense), or whether instead the mere fact of having more than one personality
is a sufficient ground to mitigate guilt.328 Furthermore, it is for the trier of fact, the attorneys, and the judge
to decide whether mitigation, when it is merited, should come under the automatism rubric [as discussed in §
8.03(a)], the insanity defense, or some other MSO doctrine.

(e) Posttraumatic Stress Disorder

That stressful life events such as combat, rape, earthquakes, and other disasters can cause significant
psychological symptoms reminiscent of the stressful event has long been recognized.329 The formal diagnosis
of posttraumatic stress disorder (PTSD) is a relatively new one, however, not appearing in DSM until the
third edition.330 DSM-5 requires that the disorder be caused by a trauma in which the individual experiences
another person’s death or encounters threatened or actual injury or sexual assault. The individual may
experience the traumatic event directly, witness others experiencing it, learn of a close relative or friend who
has experienced a trauma, or undergo intense exposure to accounts of a traumatic event or its aftermath.331
Furthermore, to merit a PTSD diagnosis, the trauma must follow more than a month’s persistence of each of
the following four symptom domains:

Intrusive thoughts, memories, or flashbacks.332

Avoiding things that the individual associates with the trauma.333
Persistent, negative beliefs, moods, and/or thoughts.334
Physiological changes that manifest themselves in overreacting to situations, or in problems with sleeping
or self-control.335

PTSD achieved considerable notoriety as a potential basis for MSO defenses to criminal behavior,
particularly insanity, in the years that followed the Vietnam War.336 Most of this attention focused on the
“reexperiencing” of trauma, in which the defendant, confronted with events reminiscent of the traumatic
event, suffered a dissociative “flashback,” believed the previously experienced trauma to be presently ongoing,
and acted accordingly. The paradigmatic example: During a flashback, a Vietnam veteran violently attacks a
home, believing that he is assaulting enemy troops.337
MSO evaluations of persons claiming to be suffering from PTSD pose several difficulties for forensic
examiners. One difficulty (common to many forensic evaluations) relates to establishing the diagnosis.
Although a number of structured measures have been developed to assess PTSD [see § 12.05(e)(1) for a
description], these, like the DSM-5 criteria for PTSD, relate to things learned through an examinee’s self-
report, and are therefore susceptible to disingenuous reporting338 or the person’s interpretation of the event
rather than its objective impact.339
Second, establishing retrospectively that a reliving “flashback” occurred is complicated by the fact that
during a flashback, an individual “may lose all contact with current reality and respond as if the trauma were
happening at that moment.”340 Thus obtaining reliable accounts of the defendant’s thoughts, feelings, and
perceptions during the episode may be difficult, particularly in the absence of detailed third-party accounts of

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the defendant’s actions. Identifying triggering stimuli at the crime scene reminiscent of the original trauma
could be helpful in this regard.
A final difficulty concerns the interaction of substance use and PTSD. The presence of alcohol or drug use
around the time of the alleged offense “may make it difficult to define the degree to which mental incapacity
at the time of an alleged act was due to the disorder or to voluntarily consumed intoxicants.”341 Several studies
show high rates of comorbid alcohol use disorders and PTSD, and individuals with both conditions have
more severe PTSD (i.e., they meet more diagnostic criteria), indulge in higher use of substances to relieve
PTSD symptoms, and experience higher rates of other psychiatric illnesses.342 Thus MSO evaluations
involving PTSD will often confront the possibility (and certainly the prosecution’s assertions) that the effects
of alcohol, commonly proscribed as a basis for an insanity defense, played a prominent role in producing the
defendants’ flashbacks or behavior.
Although PTSD has been associated with a wide variety of traumatic experiences, its use in criminal cases
has been discussed primarily in connection with combat-related trauma. In this context, Sparr has assembled
several factors regarding authenticity:

The alleged criminal act represents spontaneous, unpremeditated behavior uncharacteristic of the
individual.
The choice of a victim may be fortuitous or accidental.
Alleged acts psychologically recreate the trauma.
The defendant is mostly unaware of how he has repeated and reenacted traumatic experiences.
Seemingly benign incidents have resulted in bouts of violence.
There is amnesia for all or part of the episode.
The defendant is unable to explain the behavior.
The defendant has no prior criminal record.
Alleged acts were precipitated by events and circumstances that involved facing unresolved conflicts.
There is a lack of current motivation.
There is an absence of coherent dialogue during the dissociative state.343

(f) Impulse-Control Disorders

Although a number of scholars have argued that impulse-control disorders normally should not form the basis
for an insanity defense [see § 8.02(c)(4)], lawyers recurrently contend that a defendant whose cognition was
relatively unimpaired should nonetheless be acquitted because of volitional impairment. Information about the
disorders most often associated with such impairment may prove useful to examiners, especially those who
practice in jurisdictions that retain both prongs of the ALI test or use the irresistible impulse test. Here we
review the sparse evidence related to two impulse-control disorders—pyromania and kleptomania.
DSM-5 places these disorders in a larger category of disorders characterized by disruptiveness and poor
self-control. These disorders are associated with aggression, destroying property, lawbreaking, conflict with
authority, or otherwise violating social norms of proper behavior.344 One should not diagnose pyromania or
kleptomania if the person’s misconduct stems from cognitive or perceptual distortions (delusions,

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hallucinations), which means that these disorders would rarely if ever support an MSO defense based on
cognitive impairment. Thus it is not surprising that successful insanity pleas in arson cases usually involve
defendants with psychotic disorders, not pyromania, although pyromania may be relevant and be invoked to
negate specific intent (e.g., malice) in some arson cases.345
The DSM-5 criteria for pyromania and kleptomania require the clinician to rule out other, more common
or “rational” motives for the problem behavior. The criteria for pyromania require a conclusion that the
individual does not set fires for financial benefit, for social/political reasons, as a cover for other criminal
actions, as an expression of revenge or anger, or as a means to improve life circmstances.346 Similarly, the
diagnosis of kleptomania is appropriate only if the person is not stealing objects for his or her own use or
financial benefit, or as an expression of revenge or anger.347 Nor can these behaviors be better diagnosed as
conduct disorder, antisocial personality disorder, or mania.348 Rather, internal motivations involving arousal
and reduction of tension are required for these diagnoses.349
For both pyromania and kleptomania, numerous clinical case reports, self-descriptions, and
psychoanalytical speculations about unconscious motives are available; however, given the rarity of these
diagnoses, little rigorous or systematic research has been done. Studies of fire-setting behavior have looked at
prison, hospital, and community populations. In a study of 90 Finnish arson recidivists referred for pretrial
evaluation at a university forensic service, only 3 examinees met criteria for pyromania.350 Similarly, studies of
the prevalence of fire setting in persons undergoing psychiatric hospitalization have yielded few if any cases
that meet operational criteria for pyromania.351 Two separate studies on the lifetime prevalence of fire setting
in state hospital patients yielded figures of 26%352 and 27.2%,353 but these figures are not prevalence estimates
for pyromania. For many of these individuals, illegal fire setting was a single event,354 and the diagnosis of
pyromania was therefore rare within the sample.355 Fire setting among psychiatric patients appears to cut
across a wide variety of diagnoses, and “there appear to be no data on the salient features that would
distinguish psychiatric patients with a history of fire setting from those without such a history.”356
Finally, a study of 21 fire setters living in the community reported that most of them began setting fires in
adolescence or early adulthood. Common triggers included stress, boredom, feelings of inadequacy, and
interpersonal conflict, but a fourth of the sample reported no triggers. All experienced a “rush” when watching
or setting fires. More than 90% had comorbid DSM-IV Axis I disorders (especially mood, substance use, or
other impulse-control disorders); more than 90% reported having severe distress about fire setting; a third
considered suicide to control the fire setting; and most had not received prior treatment for the problem.357
Readers interested in additional information should consult Burton and his colleagues, who offer a useful,
forensically aimed review of the relationships among fire setting, arson, and pyromania.358
Accounts of kleptomania date back to the 19th century.359 A 1991 article reported that a comprehensive
review of the English-language literature on kleptomania yielded a total of 26 case reports of persons
diagnosed with this disorder;360 a more extensive review that scanned literature published in English,
German, and French yielded a total of 56 case reports.361 Research on patients with kleptomania and their
relatives suggests links to or comorbidity with mood disorders, substance use problems, and anxiety.362
Evidence of a biological basis comes from a study finding decreased integrity of white matter and evidence of
damage to orbitofrontal–subcortical brain circuitry among those with the diagnosis.363 Among reported cases,
kleptomania is more prevalent among women than men.364

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 One of the few studies about kleptomania that might assist a forensic examiner, with a 20-member sample,
found a mean frequency of 27–33 episodes of stealing per month, as well as a 100% prevalence of mood
disorder.365 Yet few persons arrested for shoplifting meet diagnostic criteria for this disorder.366

(g) Gambling Disorder

In DSM-5, “gambling disorder”—previously called “pathological gambling”—has been moved from the
section describing impulse-control disorders to the section on “substance-related and addictive disorders.”
This change reflects evidence that gambling and drugs of abuse activate the brain reward system in similar
ways, and that symptoms of gambling disorder bear an important resemblance to symptoms of substance use
disorders. To qualify for this diagnosis, a person must engage in repeated gambling events that cause
impairment or distress over a 12-month period. Typically, persons with gambling disorder bet more and more
to feel excitement, unsuccessfully try to control or stop themselves, become preoccupied with gambling even
when not betting, lose jobs or career opportunities because of gambling, or need to have others bail them out
of gambling-related financial problems.367 The diagnosis also involves ruling out the possibility that the
gambling behavior is a feature of a manic episode.368
Estimates of the lifetime occurrence rates for gambling disorder range from 0.4 to 1%.369 The illness may
be fairly persistent or fluctuating, with increases in gambling during times when the individual is stressed,
depressed, using substances, or avoiding substance use.370 Although gambling disorder often begins in
midlife, youthful gambling problems are also common, and are associated with risk taking, impulsiveness, and
substance use disorders.371 A number of other mental conditions are associated statistically with and often
antecede the onset of gambling disorder, including anxiety, depression, personality, and substance use
disorders.372
Of importance for forensic practitioners is a recent finding that in one correctional population, about 10%
of the inmates appeared to meet diagnostic criteria for gambling disorder,373 and a robust association existed
between problem gambling and charges for economic crimes, violent offenses, and drug crimes.374 Individuals
with gambling disorder are very unlikely to have mental conditions that would render them eligible for an
insanity defense. But courts have found criminal activity associated with problem gambling to be a basis for
treatment in lieu of incarceration and as a factor relevant to sentencing;375 in rare cases it could be grounds for
insanity in those states that recognize the volitional prong, at least for the crime of gambling.376

(h) Other Novel Defenses

To be successful, MSO defenses must usually be based on symptoms associated with the severe, well-
recognized, debilitating psychiatric disorders. Many MSO defense efforts have relied on more novel
formulations, however. Some of these have achieved considerable notoriety through extended media
coverage.377 Examples include the “television intoxication” defense of Ronnie Zamora,378 the “brainwashing”
defense of Patricia Hearst,379 and the battered-child defense of the Menendez brothers380 (all of which were
unsuccessful), and “gay panic” (which has succeeded in getting murder charges reduced).381 Supported by the
fact that premenstrual dysphoric disorder (PMDD) is grouped with the depressive disorders in DSM-5,382 an

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attorney might contend that the physiological changes associated with the menstrual cycle create marked
changes in mood or unusual proneness to anger,383 reducing the capacity of a female offender to control her
conduct. Or the defense argument might be that an individual’s volitional and cognitive impairments
associated with fetal exposure to drugs or alcohol might bolster an insanity defense,384 or that anger at a racist
world,385 “road rage,”386 or any of several other rage-related situations387 could be said to create an
“irresistible” impulse or irrational plan to avenge. “Cultural defenses” are also possible; indeed, the American
Psychiatric Association’s inclusion of cultural formulations of disorder as a separate chapter in Section III of
DSM-5,388 along with discussions throughout the manual on how culture affects the manifestations of mental
conditions, now provides more secure grounding for lawyers’ efforts at advancing such defenses. The
possibilities are seemingly endless, bounded only by the creativity of attorneys and the availability of data or
theory from the social sciences that may be brought to bear on some aspect of criminal behavior.389
Although systematic data on some of these topics may be lacking, and the alleged theoretical bases for the
phenomena may be conflicting, we do not advise mental health professionals against use of social science data
or theory in MSO cases simply because such defenses are unusual. But when data and theory are weak,
missing, or poorly understood, testimony should be ventured cautiously, if at all. Factors that may be
contributory or weakly predisposing should be explained for what they are, and poorly understood
relationships (e.g., feelings about gay people and actual criminal behavior) should not be elevated to the status
of syndromes (e.g., “gay panic”). The more unfamiliar or poorly understood the phenomenon, the more
restrained clinicians should be in their advocacy of its potential relevance.
When one is contemplating a “novel” defense, one might also recall Moore’s conceptualization of
responsibility. Under Moore’s formulation, the fact that behavior is “caused” by a particular physiological
mechanism or a peculiar situation is irrelevant unless it also renders the person’s reasoning process irrational
[see § 8.02(c)(2)]. To the extent that the law does or should adopt this approach, at least some of the
“defenses” described previously would not be recognized. For instance, the thought processes of most women
with PMDD are not irrational or even particularly distorted, though their feelings and reactions may be
intensified. Similarly, the fact that a war caused a traumatic stress disorder that is associated with a crime
would not, according to Moore, absolve a defendant on insanity grounds unless it also significantly
compromised the defendant’s thought process. The distinction between causation and explanation on the one
hand, and irrationality and excuse on the other, may turn out to be a crucial one as science and popular belief
add to the already long list of conditions that might contribute to criminal conduct.390

8.05. CHARACTERISTICS OF CLINICIANS’ MSO OPINIONS

Though mental health professionals have long been involved in reconstructing MSO, relatively little
systematic research exists on the reliability and validity of their judgments in such cases. Thus public
perception on this issue has been shaped almost exclusively by a few highly publicized cases in which opposing
expert witnesses have offered inconsistent or contradictory testimony.391 Indeed, one caustic observer has
noted, “For every Ph.D. there is an equal and opposite Ph.D.”392 An understanding of the research that does
exist might help counteract this type of attitude, or at least provide a more realistic perspective. Thus we
briefly review here studies on reliability (interrater agreement), validity (agreement with external criterion),

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and other relevant aspects of clinicians’ opinions in insanity defense cases.

(a) Reliability Studies

Table 8.2 summarizes the findings from nine studies of interrater agreement in insanity evaluations. The first
study comes from Stock and Poythress,393 who examined the reliability of insanity opinions formulated by 12
Ph.D. psychologists at Michigan’s Center for Forensic Psychiatry. In each of 33 cases, a pair of psychologists
simultaneously interviewed the defendant and had equal access to relevant third-party information such as
police reports or prior medical records. Without conferring with each other, they provided the investigators
their opinions regarding insanity. As the table shows, the pairs agreed in 97% of the cases.

TABLE 8.2. Reliability of Forensic Examiners’ Opinions Regarding Insanity: Summary of Findings from Seven Studies

Study Number of cases Statistic Level of agreement

Stock & Poythress 33 Proportion in agreement .97
Fukunaga, Pasewark, Hawkins, & Gudeman 384 Proportion in agreement .92
Raifman 214 Proportion in agreement .64

Rogers, Dollmetsch, & Cavanaugh 25 Correlation coefficient .82a

Rogers, Wasyliw, & Cavanaugh 25 Kappa .93b

Rogers, Seman, & Wasyliw 30 Kappa 1.00

Phillips, Wolf, & Coons 66 Proportion in agreement .76

Kappa .45

Large, Nielssen, & Elliott 61 Kappac .51

Kappad .64

Gowensmith, Murrie, & Boccaccini 165 Multirater kappa .56

a
“Correlation coefficient” is defined in § 20.02. The correlation of +.82 indicates fairly high agreement between the clinicians.
b
Kappa is a statistic for measuring agreement between examiners on nominal categories, such as diagnosis or (in the present context) legal
sanity–insanity. It is considered to be a conservative statistic, because agreement between examiners is corrected to eliminate the effects of
chance agreement. A kappa of 1.00 reflects perfect interrater agreement, while a kappa of 0 indicates that examiners agree at the level obtainable
by chance alone (negative values indicate less than chance agreement).
c
Experts retained by the opposing sides.
d
Experts retained by the same side.

Fukunaga, Pasewark, Hawkins, and Gudeman obtained a similar reliability estimate in a much larger study
of defendants in Hawaii who underwent examination by a pair of psychiatrists.394 In this study, however, the
examiners were not prevented from conferring with one another prior to forming their opinions. Thus the rate
of agreement may have been inflated by examiners’ efforts to iron out their differences.
The third study was conducted by Raifman,395 who reported reliability estimates for psychiatrists
performing insanity evaluations in Arizona. A total of four psychiatrists were involved in the study, with two
involved in any one case. In each case, one psychiatrist was selected from a list provided by the prosecutor, the
other from a list provided by the defense. Overall agreement here was much lower, with considerable variation
among the pairs.
The next three studies listed in Table 8.2 were conducted by Rogers and his colleagues.396 They reported

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interrater agreement between experienced clinicians (either psychologists or psychiatrists) using the Rogers
Criminal Responsibility Assessment Scales (R-CRAS),397 a set of explicit rating scales described in more
detail below. The agreement rate was consistent with the rate found in the first two studies described above.
The seventh study comes from Phillips and colleagues,398 who reported findings from insanity evaluations
conducted in Alaska between 1977 and 1981. Their review of close to 1,000 state hospital, community mental
health clinic, and private clinic files revealed 66 cases in which two or more clinicians had examined a
defendant for MSO. As in the study by Fukunaga and colleagues, evaluators’ opinions regarding insanity were
not necessarily independent; even so, the agreement rate was relatively low.399
The eighth study comes from Large and his colleagues in New South Wales, Australia (the state in which
Sydney is located),400 who reviewed 115 pairs of insanity reports on 61 defendants.401 Agreement about
insanity was moderate when experts had been engaged by opposite sides (kappa = .508), and good when
experts had been engaged by the same side (kappa = .644). A higher level of agreement obtained when the
experts also agreed about the diagnosis of schizophrenia.
The ninth study comes from Gowensmith and his colleagues,402 who reviewed 483 insanity reports from
165 criminal cases in Hawaii. Here there were three evaluations on 153 defendants and two evaluations for 12
defendants. In just 55.1% of cases did all evaluators agree about the defendant’s sanity at the time of the
alleged offense (although any random pair of evaluations agreed 76% of the time). The free-marginal
multirater kappa coefficient for the defendants with three evaluator opinions was .56, a value interpreted as
“‘fair’ but not ‘good.’”403
These studies differed in several ways, which render comparison or generalization difficult. First, the
studies used examiners of different professional disciplines—psychiatrists (Raifman, Phillips et al.) versus
psychologists (Stock & Poythress) versus both psychiatrists and psychologists (Rogers et al., Gowensmith et
al., Large et al.). Second, the examiners may have differed in their forensic training, a factor shown to
influence output;404 the psychologists in the Stock and Poythress study had received months of supervised
training in performing insanity evaluations, but the specific training of the clinicians in the other studies is not
known. Third, some differences may be attributable to examination settings; some occurred in private offices
(Raifman), others in a hospital setting (Stock and Poythress). Different legal tests were also applied—ALI
(Phillips et al.) versus M’Naghten (Raifman). The examiners may have differed in terms of allegiances—court-
appointed (Stock and Poythress) versus retention by a particular party (Raifman, Large et al.). Finally, some
evaluations took place in conditions where collaboration was possible (Stock & Poythress, Fukunaga et al.),
others in conditions where collaboration was unlikely or not allowed (Large et al., Gowensmith et al.).
Thus no broad conclusions can be drawn concerning the reliability of mental health professionals’ opinions
on the insanity question. But the higher reliability figures reported by Stock and Poythress and by Rogers and
colleagues suggest that the reliability of insanity opinions may be quite respectable under certain conditions—
namely, among clinicians with forensic training, working in a hospital or clinic setting where similar concepts
and approaches may be shared, with no a priori allegiance to either party. Supporting this conclusion is
research showing that clinicians working in state hospitals overwhelmingly agree that personality disorders
should not form the basis for an insanity defense.405 The substantially lower figures reported by Raifman and
by Phillips and colleagues paint a different portrait and leave open to question (and, we hope, further
empirical study) which factor or factors contribute to low agreement between examiners.

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 To our knowledge, no published reliability studies have looked at clinicians’ judgments on MSO defenses
other than insanity. One would expect, however, that interrater agreement for diminished capacity or
automatism would be somewhat lower than for insanity opinions, as the former issues are usually raised in
connection with mental conditions that are less conspicuous than those required for consideration of an
insanity acquittal.
We also know of no studies that have looked at the reliability of judgments and inferences that stop short
of ultimate conclusions about sanity, mens rea, and other MSO issues. Since we discourage forensic examiners
from addressing ultimate legal issues [see § 1.04], this latter type of research would be the most useful from
our perspective. Some research about this topic conducted in nonforensic settings, however, is not
encouraging. Staller and Geertsma asked 27 psychiatrists who were faculty members at a major medical school
to view a 30-minute videotaped interview of a patient and then rate the applicability, on a scale from 0 to 5, of
each of 565 descriptive statements that the investigators had prepared.406 The mean correlation coefficient
over all pairs of clinicians was only .37. The investigators had hoped to use the procedure to develop a device
for assessing students’ clinical skills; instead, they concluded:

[E]xperts with the highest credentials did not agree on a sufficient number of the 565 items . . . given them to make up an examination. . . .
[I]nstead of reporting here on a new device for assessing clinical skill in psychiatry, we are presenting these sobering findings on the failure of
psychiatric experts to agree in their clinical judgments.407

Conversely, Gowensmith and colleagues found that in 77% of their series, all three examiners agreed about
the presence or absence of a psychosis. Yet even when the examiners agreed about having a psychosis, they
disagreed about insanity, particularly in cases where all thought that the defendants were not psychotic at the
time of the alleged offense.408

(b) Validity Studies

We report here on six studies that look at the concordance between clinicians’ insanity opinions and courts’
decisions. In the first such study, Daniel and Harris reported the results of pretrial examinations of female
criminal defendants (n = 66) conducted at a large state hospital in Missouri from 1974 to 1979.409 Of the 25
cases for which NGRI was recommended, the court returned an NGRI verdict in 22 (88%).
Similarly, Fukunaga and colleagues reported an overall clinician–court agreement rate of 93% in their study
of 315 cases in Hawaii; the court disagreed with only 11 of the clinicians’ 105 insanity findings and only 10 of
the clinicians’ 210 sanity conclusions.410 This validity estimate is probably inflated, however, as the
investigators excluded, among others, 44 cases in which the examining psychiatrists did not state definite
opinions. Although it is to the psychiatrists’ credit that they refused to offer opinions when none could be
formed, exclusion of these cases probably biased the sample by excluding the more difficult cases.
Even using a more careful methodology, however, Poythress obtained impressive results.411 In each of the
139 cases studied, a Ph.D. clinical psychologist from Michigan’s Center for Forensic Psychiatry completed an
insanity evaluation and testified in court, usually with opposing testimony by a psychiatrist from the private
sector. The overall agreement rate between the opinion of the center’s psychologist and the ultimate verdict
was 93% (only 3 of the 41 defendants recommended insane by clinicians were found sane by the courts, and

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only 6 of the 98 defendants recommended sane by the clinicians were found insane by the courts).
A fourth concordance study was published by Rogers and colleagues,412 who compared court opinions to
those of forensic psychiatrists and psychologists in Illinois and Ohio using the R-CRAS. The courts agreed
with the clinicians in 93 of 104 cases (88%). However, because the study looked at all cases referred for
evaluation, and some of those cases undoubtedly did not result in assertion of an insanity defense, the criterion
variable for many of the “sane” cases was in effect a defense attorney’s or defendant’s decision not to raise the
defense, rather than judicial or jury review of the clinical opinion. A fifth study by Wettstein and colleagues
reported legal outcomes for 112 cases in which psychiatrists employed at a court clinic opined that the
defendant was legally insane.413 In 91 of these cases (81.3%), the defendant was found NGRI in court.414
Our final data set comes from the above-discussed agreement study by Gowensmith and colleagues. In the
138 cases for which two or three evaluators gave the same opinion and the court made a disposition of either
sane or insane, judges agreed with the majority evaluator opinion in 90.6% of all cases, and in 95.4% of cases
where all the evaluators agreed. When judges disagreed, they tended to do so in favor of finding defendants
sane.415
Despite differing methodologies, these studies report fairly consistent concordance rates (81–95%) between
examiner opinions and legal outcomes. They all share an important methodological problem: Defining an
adequate criterion for a “correct” judgment on issues such as insanity and automatism is virtually impossible.
Thus the investigators in the studies reported above compromised by using court decision as the criterion.
This criterion may serve as well as any other when the basis for the verdict is developed through an adversarial
proceeding.416 But when, as is often the case [see § 8.02(c)(4)], the insanity determination occurs in a
relatively nonadversarial, bench trial setting in which the clinical opinion is uncontested and usually
dispositive, the court’s decision may well be contaminated by the very dependent measure being studied.
Unfortunately, with the exception of Poythress’s study, the research reported above appears to depend at least
in part on court decisions of the latter variety.
Even when the verdict does come from an adversarial proceeding, a further problem with all the studies is
the fact that the examiners were appointed as “court” evaluators, nominally without allegiance to either party
in the litigation. The parties calling these clinicians probably portrayed them in court as “neutral,” while
characterizing the opposing clinicians as “hired guns.” As a result, the judges or jurors may well have viewed
the studied examiners as less biased or more objective, and their verdicts may have been based on trust rather
than on a critical, independent assessment of the evidence. In short, like the reliability studies, these studies
suffer from methodological problems that make it hard to compare them or to place much confidence in them
as true validity estimates.

(c) The Effect of Discipline on Insanity Opinions

Another interesting question is whether, and the extent to which, support for MSO evaluations might differ
as a function of forensic examiners’ professional disciplines. Research that bears on this issue was reported by
Warren and colleagues,417 who compared the rates of supportive opinions rendered by 164 psychologists and
58 psychiatrists in 3,471 Virginia cases. The results indicated that psychologists found defendants insane
about 13% of the time, whereas the rate was half again higher in evaluations conducted by psychiatrists

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(20%).418 Although these findings are suggestive of discipline differences, the investigators also reported a
confound in the data: The psychiatric examiners in this study were, on average, less experienced than the
psychologists.419 Moreover, Gowensmith and colleagues found no effect of evaluator discipline in their
study.420 The next section, however, suggests that there may also be discipline-related differences in the
justifications used in supporting an insanity defense.

(d) Application of Cognitive versus Volitional Prongs

A final aspect of MSO opinions that has been studied is the extent to which forensic examiners rely on the
cognitive versus volitional prong of an insanity test when support for the defense is found.421 Warren et al.’s
examination of forensic examiners’ opinions in 563 cases found that the volitional prong alone was used in
only 9% of cases, that the cognitive prong alone was used in 43% of cases, and that defendants were judged to
have met both prongs in 48% of cases.422 Somewhat different results were reported by Wettstein and
colleagues in their study of 164 insanity cases, in which one of four board-certified forensic psychiatrists
opined that the defendant was insane.423 This study indicated that the volitional prong alone was used in
24.4% of cases, that one or another aspect of the cognitive prong was met in only 2.4% of cases, and that
defendants were judged to have met the volitional prong plus at least one aspect of the cognitive prong in
69.5% of cases.424
The differing methodologies of these two studies preclude strong comparisons between them. However,
together they have potential implications regarding the insanity defense. One is that eliminating the volitional
prong of the insanity test would potentially affect the results of about 10–25% of cases. The other is that there
may be disciplinary differences in interpreting the exculpatory effect of volitional impairment. While use of
the cognitive prong was more pronounced in the Warren et al. study, where the majority (71%) of cases
supporting the insanity defense were conducted by psychologists,425 the use of the volitional prong was more
pronounced in the Wettstein et al. study, in which all evaluations were conducted by psychiatrists. In addition,
the psychiatrists in the Wettstein et al. study expressed (slightly) higher levels of confidence in their opinions
when the judgment entailed the volitional (vs. cognitive) prong.426

8.06. MSO INVESTIGATION

Several features of the clinical evaluation of MSO make it one of the more difficult assessments in forensic
work. First, as the foregoing discussion makes clear, the governing legal doctrine is amorphous, which means
that virtually any aspect of an individual’s personality may assume legal relevance. Second, unlike the focus of
most other forensic assessments, the focus of the MSO evaluation is retrospective. Having to ascertain what
an individual thought or believed weeks or months earlier limits the applicability of many traditional clinical
procedures and creates concern about the possible impact of intervening events. Added to these concerns are
challenges that are generic to forensic evaluations, but that can be particularly intense in the MSO setting: the
unavailability of desired third-party information, and uncooperative or dishonest subjects.
We thus use the term “investigation” intentionally. In complex MSO cases, forensic examiners function
more as investigative reporters than as traditional clinicians. They often spend more effort outside the

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interview room gathering and reviewing third-party information as they spend inside with the defendants. In
addition, the time they do spend with the defendants can potentially be much more confrontive and
inquisitive than is typical in therapy or many other types of forensic evaluations. Chapter 3 has detailed the
many differences between forensic and therapeutic assessments; a typical MSO examination illustrates the
forensic evaluation par excellence.
Given the complexity of the MSO evaluation and its focus on a unique set of circumstances in every case,
evaluation techniques are not standardized. Yet forensic examiners should try to be systematic in considering
information from three broad domains upon which there is some general agreement across authorities.427
These domains include third-party information; the defendant’s own report of MSO (and relevant personal
history); and the use of psychological tests, tools, and clinical techniques that may be useful in MSO
assessments.

(a) Third-Party Information

As Morse has stated, “In determining whether a defendant is crazy, there is simply no substitute for the fullest
possible account from all sources of the defendant’s behavior at the time of the alleged crime.”428 Third-party
information is essential to a good MSO evaluation. Which third-party information to pursue, and how best to
pursue it, will depend on the complexity of the evaluation [see generally § 3.04].
Table 8.3 identifies five categories of potential information. Information regarding the referral itself is
crucial in defining the scope of the evaluation and ethical obligations [see § 4.05(b)(1)]. Reports about the
crime scenario are also obviously essential, both for purposes of comparison with the defendant’s narrative and
for developing leads for further investigation; increasing numbers of police departments are video-recording
interrogations and other interactions with defendants at or near the time of the offense,429 which may provide
a particularly useful source of information about defendants’ thinking and functioning. Developmental and
historical information provides corroboration of mental state and diagnosis, and helps in formulating
alternative “causation” hypotheses. Within this category, recent hospital records in particular may contain a
wealth of descriptive information regarding the frequency and duration of symptoms, response to medication
or other intervention, and prior displays of legally relevant behavior.

TABLE 8.3. Sources of Third-Party Information

1. Information regarding evaluation itself
a. Referral source
b. Referral questions
c. Why is evaluation requested (i.e., what behavior triggered the evaluation)?
d. Who is report going to?
e. When will report be used?

2. Offense-related information
a. From attorney’s notes
b. From police reports
c. From witnesses, victim(s)
d. From confession, preliminary hearing transcript, etc.
e. Laboratory reports

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 f. Autopsy reports
g. Video recordings (including police body cameras)
h. Newspaper accounts

3. Developmental/historical information
a. Personal data (traumatic life events, unusual habits or fears, places lived)
b. Early childhood illnesses (if organic deficit suspected)
c. Family history (especially if young and/or still living with family)
d. Marital history (especially in spousal homicide cases)
e. Educational, employment, and military history
f. Social relationships
g. Criminal history
h. Substance use history
i. Psychosexual history (especially if sex offense)
j. Medical and psychiatric records

4. “Signs of trouble”
a. Juvenile and criminal court records
b. Probation reports

5. Statistical information (i.e., studies of the behavior of individuals with the defendant’s characteristics)

Records of evaluation or treatment in the hospital or jail following arrest may also be important,
particularly if the examiner suspects that a defendant’s mental condition has changed significantly since the
arrest. For example, blood or urine testing at the hospital may inform judgments regarding the possible
contribution of drugs or alcohol to the alleged crime; rapid and spontaneous remission of psychotic symptoms
after a few days in jail may suggest a recent substance-induced (rather than functional) psychotic state. The
fourth category, records of prior criminal activity, will suggest patterns of behavior or types of triggering
events that can help the clinician gain insight into reasons for the individual’s current criminal act. Finally,
relevant statistical data about antisocial tendencies of people with similar personalities can form a baseline for
the evaluation.
More difficult than determining what type of information is needed is obtaining it. Problems can occur
with respect to all five types of information described in Table 8.3. Referral information should come from the
initial consultation with the referral source, the court order, or both, but as discussed in Chapter 3, it is
occasionally not forthcoming without considerable effort on the clinician’s part. Crime information is usually
available from the police and the attorneys; because these sources may not be attuned to various psychological
clues, however, the examiner may occasionally feel compelled to seek corroboration from complainants,
witnesses, codefendants, or others who may help to reconstruct a defendant’s MSO. If so, allegations of
“witness tampering” should be avoided by contacting each source through the referring party. Records
regarding treatment, criminal history, juvenile history (to the extent that it is not “expunged”), education,
military service, and so on should be obtained by the defendant’s attorney and given to the clinician; again,
however, the adversarial nature of the criminal process may inhibit free exchange of information.
Furthermore, if the defendant’s attorney does not provide the information, the examiner will need to get
written authorization from the defendant to obtain psychiatric and medical records; even though the privilege
associated with this material is probably waived once a defense is raised [see § 4.04(c)], when the defense has

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not been raised, or when examiners are unsure about the relevance of the sought-after records, a valid privilege
claim may exist without such consent. Finally, as the preceding sections of this chapter have made clear, to
date useful statistical information about crime and mental disability is rare or so general as to be of little use.
Despite these difficulties, the evidence-gathering effort is usually worth it and can sometimes prove crucial.
Consider a case in which one of us (Poythress) was involved, the data for which are presented in Table 8.4.
The defendant, a successful insurance saleswoman, was charged with the murder of her estranged husband
while he was visiting with the family to celebrate the birthday of their teenage son. She claimed she was
insane at the time of the killing. Hospital records indicated that she had suffered three manic episodes in the
past. Other information accompanying the referral revealed that she had been taken directly from the scene of
the shooting to the hospital, that she had been admitted in an “angry and disorganized state,” and that she
had subsequently received treatment for depression and grief reaction over a several-month period. Her usual
treating psychiatrist had evaluated her at the request of the defense and prepared a report supportive of an
insanity defense based on her bipolar disorder. As Table 8.4 reveals, however, the defendant’s assertions
regarding her mental state at the time of the shooting, her motivation, and her rationale for having a loaded
gun in the home were all at odds with one or more pieces of third-party data gathered through investigative
interviewing. These data were pivotal in supporting a formulation that the shooting was primarily a product of
anger and jealousy, rather than a relapse into a manic episode.

TABLE 8.4. The Usefulness of Third-Party Information: An Illustration

Defendant assertion Third-party source Third-party data Implication

Cause of the shooting

Experienced a manic episode Treating psychiatrist Patient “religiously” took her Inconsistent with defendant
that “caused” the murder. medications; lithium levels well claim of manic episode.
within the therapeutic range for
past 3 months.

Individual therapist Therapy notes and verbal report Inconsistent with

of weekly sessions, including decompensation into psychotic
observations 2 days prior to state.
shooting. No sign of
manic/hypomanic symptoms;
primary therapy issue is anger
toward husband for separation.

Teenage child, age 18, living at Observations of defendant Inconsistent with

home at/near time of shooting. No decompensation into psychotic
behaviors noted that were similar state.
to symptoms at times of previous
acute manic episodes.

Supervisor at work Defendant described as a highly Inconsistent with

competent, effective insurance decompensation into psychotic
sales person. No behaviors noted state.
that were similar to symptoms at
times of previous acute episodes.

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“Loved husband” despite
separation; no reason to act
aggressively toward husband.
Episode may have been
triggered by alcohol.
Loaded rifle kept in home “since
my husband moved out” (6
weeks ago) in order to protect
family in high-crime
neighborhood.
—Radio had been stolen from
son’s car.
—Neighbors had had prowlers
recently.
—Police frequently called to area
due to high crime.
Assuming that the appropriate information is sought and obtained, the clinician must still make judgments
Feelings toward victim and motivation
Individual therapist
Teenage child, age 18, living at
home
Role, if any, of alcohol
Bartender at lounge where
defendant went some evenings
to meet men
Teenage child, age 18
Rationales for availability of loaded weapon
Teenage child, age 18
Teenage child, age 18
Interview neighbors
Police dispatch log
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Repeated theme in therapy,
especially in session 2 days prior
to shooting, is anger over
separation; much verbal hostility,
but no explicit threats or plans of
action toward him.
Observations on evening of
shooting include that defendant
and victim argued about family
obligations moments before the
shooting.
Defendant usually drank 1–2
glasses of wine; behavior
described as reserved, controlled,
and quiet.
Mother drinks infrequently and
small quantities; no pattern of
volatile or aggressive behavior
noted when drinking.
Defendant asked him to load
gun 2 weeks ago and leave in hall
closet.
Radio had in fact been stolen,
but while car was parked at
school, 7 miles away.
Next-door neighbor reports one
incident of school kids marking
car/house windows with bar of
soap. Nine other neighbors deny
any recent crime problems; some
view neighborhood as “safe
enough to leave your door
unlocked.”
No patrol cars dispatched to
defendant’s street in prior 4
months.
Inconsistent with feeling/affect
recalled by defendant at time of
forensic evaluation.
Confrontation and disagreement
over family obligations may have
provoked defendant’s anger and
behavior.
Inconsistent with “pathological
intoxication” or other
explanation based on triggering
effects of alcohol.
No indication of history of
radical reaction to alcohol
consumption.
Inconsistent with defendant’s
rationales for keeping loaded
gun.
Not a criminal incident in the
vicinity of the home.
Neighbors do not describe
neighborhood as high-crime
area, which is inconsistent with
defendant’s account and
rationale for having rifle loaded.
Inconsistent with defendant’s
characterization of needing to
defend family against high-crime
in the neighborhood.
about how much to rely on any given feature of the information. One concern is admissibility [see § 3.07].
For instance, a police file may contain an illegally obtained confession, which may not be admissible in the
prosecution’s case-in-chief. We do not suggest that mental health professionals acquire the habit of “playing
lawyer” by trying to guess whether various items of evidence will be admissible or not. We do suggest,
however, that clinicians initially refuse to consider any third-party information that they know is inadmissible,
as the ethical rules seem to require [see § 4.05(e)(2)]. Only after completing their usual investigation and
arriving at a formulation should they decide whether to review the evidence known to be inadmissible. In this
way, they can assure the court that they have developed a formulation that has not been contaminated by
exposure to the inadmissible evidence.
A second concern is validity [see § 3.02(d)]. For instance, the statement of a codefendant or a relative of
the defendant may be suspect; the codefendant may duplicitously want to place the entire blame on the
defendant, while the family member may want to absolve a loved one he or she knows is guilty. Clinicians
should also be circumspect about relying on statements by defendants whose intelligence is low or who may be
suffering from mental disorder; the police method of obtaining and recording such defendants’ statements
may significantly influence the validity (in the clinical sense) of the information gathered. Examiners should
be particularly careful with confessions written in formal, stilted, first-person language (e.g.,“I, John Doe, on
the evening of November 4, did break and enter . . . ”). Such “confessions” may actually be police summaries
of the defendant’s words; as such, they may consciously or unconsciously screen out important diagnostic
information, such as language reflecting a formal thought disturbance.
One such confession, for instance, described the defendant’s robbery of a liquor store and subsequent
escape on foot, during which he hid under a front porch from pursuing police officers. Because the defendant
had been in psychiatric treatment during the nine-month period after charges were filed, suspicion developed
that this relatively straightforward account misrepresented the defendant’s true state at the time of the
confession. Accordingly, a concerted effort was made to obtain a transcript of the defendant’s actual words.
Obtained from the prosecutor’s office, the confession read:

Got a drink of water gas station with the dog walked through the blocks store opened, sign out of window walked in dog layed on step a car
drove up near by asked 4 matches sorry eyed, didn’t use them till bottle of brew was put in the bag with the money and out the door dogs
noticed by passerby. Drove away crossed street other lawnway “south” of first house cut into block and lawns path took behind to porch and
beneath I hide opened bottle left prints on door and bottle 2 cigarette butts. I knew a brunt check bag cover policeman shot a definite three
times, as leaving porch space after asking questions to the house owner of the dog, and demanding me to leave out of there. I ran when
crossed the first set of tracks hid again till rain ceased search of men Margarette not anywhere still cursing went over to vacant building and
slept without change. Awoke to noon had a beer when met the old lady. Left to foot doctors office and received warranted arrest there.430

Clearly, the defendant’s “word salad” confession produces a different impression regarding his mental state
near the time of the offense than could be gleaned from the cleaned-up version that the police had induced
him to sign.
Evaluators should be aware, however, that even a video recording may not provide a good portrayal of a
defendant’s beliefs and motives at the time of the confession. For example, in an attempt to secure a criminal
conviction, get an arrestee to admit to certain facts about a case, and negate a valid insanity defense, officers
will often ask yes–no questions, attempt to elicit nonpsychotic motives (e.g., “So you were angry at him,
right?”), and guide the arrestee toward acknowledging wrongfulness (e.g., “Are you sorry about what

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happened?”). A video recording consisting solely of such questions and responses is of limited value to the
clinician. It may be particularly suspect if most or all of the responses are brief or if the defendant is of low
intelligence (as indicated in § 7.03(b)(2), such defendants have a tendency to acquiesce to persons in
authority431). In short, the clinician performing an MSO evaluation must constantly be alert to validity
problems.

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 (b) Phases and Tone of the Defendant Interview

There is no widely used standard interview procedure for MSO evaluations. However, it is possible to outline
a relatively typical interview process, consisting of six phases.
The first phase involves disclosure and orientation. After introducing him- or herself and any others
participating in the interview, the examiner describes the purpose of the interview, making it clear that the
examination is not for treatment purposes and will not necessarily “help” the defendant. The examiner should
also explain several other matters regarding the examiner–examinee relationship [see § 4.05(d)], among them
the limits on confidentiality (e.g., a report of the evaluation will go to the prosecution) and the consequences
of not answering questions (e.g., “I’ll explain this in my report,” or the possibility of sanctions when the report
is requested by the state or the court). Finally, the examiner should explain any special equipment in use, such
as a one-way mirror, recording devices, and the like, and note that the defendant is entitled to breaks. The
examiner then asks the defendant to paraphrase this explanation of the purpose and potential uses of the
evaluation, and invites the defendant to ask questions when uncertainties exist.432
The second phase involves obtaining a developmental and sociocultural history from the defendant. Many
of the questions are relatively innocuous, and the interchange helps establish rapport and give the examiner a
feel for how the individual functions in society. A third, related phase involves an assessment of present
mental status, including current or recent symptoms of thought, mood, perception, or behavioral disturbance.
Such information can shed light on the defendant’s past mental state, although, of course, the examiner
cannot assume that the defendant’s status has remained constant since the time of the alleged crime.
At the fourth phase, the examiner focuses on the events and actions surrounding the alleged offense,
inquiring about the defendant’s recall of thoughts, feelings, behavior, and motives at the time. The examiner
also seeks information regarding situational variables (e.g., intoxicants and actions of others) that may have
contributed to the criminal act. Table 8.5 identifies specific areas of concentration at this point in the
interview. At the end of this stage, the examiner should have developed a preliminary judgment about the
degree and type of disturbance present at the time of the alleged offense as well as at the time of the interview.

TABLE 8.5. Information from the Defendant about the Alleged Offense
1. Defendant’s present “general” response to offense—for example:
a. Cognitive perception of offense
b. Emotional response

2. Detailed account of offense

a. Evidence of intrapsychic stressors—for example:
i. Delusions
ii. Hallucinations
b. Evidence of external stressors—for example:
i. Provoking events
ii. Fear or panic stimuli
c. Evidence of altered state of consciousness—for example:
i. Alcohol-induced
ii. Drug-induced

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 d. Claimed amnesia
i. Partial
ii. Complete

3. Events leading up to offense

a. Evidence of major changes in environment—for example:
i. Change in job status
ii. Change in family status
b. Prior relationship to victim
c. Preparation for offense

4. Postoffense response
a. Behavior following act
b. Emotional response to act
c. Attempts to explain or justify act

If other professionals are participating in the MSO examination, the fifth phase involves conferring with
them outside the presence of the defendant and comparing impressions. In addition, comparison of what the
defendant has said about the alleged offense with reports from other data sources may give leads to further
inquiries. At the sixth phase, if required, the examiner reviews with the defendant any areas of inconsistent or
contradictory information and explores any potentially important areas that the defendant was initially
reluctant to discuss.
The examiner’s interviewing style may vary, depending on the phase of the interview, the attitude or
mental state of the defendant, and the consistency of the information received. If the defendant is depressed,
guarded, and/or of low intelligence, the examiner may have to be more active throughout the interview; with a
defendant who is cooperative and verbal, the examiner may be fairly low-key while obtaining general or
historical information. At the fourth and sixth phases—reconstruction of MSO—the examiner will be most
active, eliciting details involving actions, feelings, perceptions, reactions, and memories of the alleged criminal
act. The examiner may also ask for repeated narratives from the defendant, looking for inconsistencies across
versions or internal inconsistencies in a version. Often the “spiraling” approach is used: The examiner first
elicits a brief general account of the offense, but subsequent queries focus increasingly on details of the
defendant’s thoughts and actions.
The examiner’s tone may vary significantly as well: It can be receptive and supportive or skeptical and
confrontational (but still respectful), depending on perceptions of the defendant’s honesty and candor [see §
3.06 for discussion of various techniques for detecting malingering]. Suspected malingering should not always
trigger confrontation, however. The approaches and tone the examiner employs will depend on a variety of
factors, including the nature of the defendant’s symptoms (e.g., cognitive vs. functional impairment), the
defendant’s level of cooperation with less confrontational structured testing, and the availability of third-party
sources that can be used to challenge the defendant. Furthermore, clinicians should be aware that some
defendants will have a psychological need to “save face” in the process of admitting their feigning. Therefore,
we recommend that when examiners use confrontation, they should also adopt an “understanding” posture—
perhaps prefacing the confrontation with acknowledgment of the defendants’ legal situation and an expression
of appreciation that such circumstances might reasonably induce people to exaggerate their symptoms. This

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tack is more likely than others (e.g., hostile, accusatory confrontation) to convince defendants to acknowledge
feigning or embellishment and subsequently interact with more candor.
In summary, an examiner’s style and tone of interviewing during an MSO evaluation will depend on a
number of factors. Significantly, the examination process may call for the clinician to be more active, directive,
and accusatory than is typical of a therapeutic interview.

(c) Psychological Testing and Other Special Procedures

As Chapter 3 has indicated, forensic clinicians have at their disposal several specialized procedures that may
assist in gathering information for the MSO evaluation. We consider first a measure intended specifically for
the assessment of MSO. We then consider more broadly the use of more conventional psychological tests and
other clinical measures.

(1) The Rogers Criminal Responsibility Assessment Scales

The R-CRAS, mentioned in § 8.05(a), is a set of scales designed to evaluate factors relevant to, structure
clinical inquiry about, and guide decisionmaking on the issue of legal insanity.433 The R-CRAS manual
explains that the major concern motivating the test’s creation was the lack of scientific respectability associated
with clinicians’ judgments on insanity: “The scientific basis of such judgments has, until now, remained
practically unresearched. This absence of empirical data, compounded by problems of perceived financial self-
interest, has led authors addressing this issue to conclude that psychiatric testimony lacks the requisite
scientific precision for rendering expert opinions” with reasonable medical or scientific certainty.434 The R-
CRAS seeks to correct these perceived deficiencies in insanity evaluations and opinions by having examiners
use scales to rate aspects of human behavior such as (1) the relative severity, for legal purposes, of disordered
behavior; and (2) the relative contribution, for legal purposes, of symptoms of disordered mental states to the
criminal behavior itself.
The 30 RCRAS variables address a number of different factors, including the reliability of the defendant’s
narrative (vs. possible malingering); evidence and impact of “brain damage”; presence and impact of
intellectual disability; and presence and impact of symptoms such as anxiety, mood problems, hallucinations,
and delusions. The clinician’s ratings on these variables are combined into six summary “psycholegal criteria”
that address the presence of malingering, the presence of “organicity,” the presence of a major psychiatric
disorder, loss of cognitive control (i.e., whether the person “lacked the ability to comprehend the criminality of
his behavior”), and loss of behavioral control (i.e., whether the person “was unable to change, monitor, or
control his criminal behavior”), followed by a judgment about the relationship between the assessed loss of
control and the “organicity” or psychiatric disorder. The conclusions with respect to these six psycholegal
criteria are then used in decision trees435 that guide the clinical opinion about legal insanity. Interrater
reliability for R-CRAS judgments is good, and concordance between opinions based on R-CRAS ratings and
court verdict is respectable [see §§ 8.05(a) and (b)].
On the R-CRAS scales, the examiner assigns an ordinal rating (from 0 to 5 or 6) to reflect the relative
severity of the factor being rated. In a few instances, the scale anchors are objective or normed measures of

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behavior (e.g., the degree of intellectual disability is anchored to scores on intelligence tests). Most variables
reflect a gradient of severity (e.g., from “slight” to “extreme” impairment). For example, they reflect whether
the examiner believes the examinee “was in complete control,” “lost control of a significant portion of the
criminal act after choosing” to commit a crime, lost control during “the initial approach to the crime scene,” or
was “completely out of control” throughout the alleged criminal act. Other scales rate the relationship between
a symptom or diagnostic condition and the alleged offense—for example, the relationship of “brain damage”
to the commission of the alleged crime, for which a score of 5 indicates that the examinee “lacked
intentionality, could not comprehend the criminality of what he/she was doing and/or lacked control over
his/her behavior.”
The strengths and imitations in the R-CRAS have been noted in other reviews,436 and Rogers has
responded to the criticisms in publications he has authored since the instrument’s creation.437 Here we
mention several concerns about the RCRAS.
First, other than the item anchors, the R-CRAS booklet and the manual provide no instructions on how to
measure intentionality, comprehension of criminality, or self-control. An important question, therefore, is
whether by assigning ordinal numbers to a continuum of conclusions of this type, the examiner is merely
grading folk-psychological, common-sense judgments of the sort that everyone makes, and thus using
numbers to say the same types of things that mental health professionals have previously been criticized for
passing off as scientific appraisal based on “reasonable certainty.”438
Second, the value of ordinal numbers as true quantifiers becomes more uncertain when the clinician
proceeds to the important summary decisions by combining various subsets of the basic 30 variables. These
numerical variable ratings (e.g., 0–5 or 6) are not combined arithmetically; rather, the examiner makes a global
judgment about (for example) whether the examinee experienced a “definite loss of cognitive control” and
“lacked substantial the ability to comprehend the criminality” of the alleged criminal behavior. Thus the
ultimate judgments involved in the R-CRAS are not based on quantitative measurement.
Third, research on R-CRAS validity must be viewed skeptically. Several studies have reported that
defendants classified as insane with the R-CRAS, compared to their criminally responsible counterparts,
demonstrate (1) a relative absence of malingering, (2) more severe psychopathology associated with major
mental disorder, and (3) a greater loss of cognitive and/or behavioral control.439 However, these studies have
suffered from criterion contamination: The classification of cases as “sane” or “insane” was derived from the
RCRAS decision tree itself, which takes into account the specific scales that relate to malingering,
psychopathology, and perceived loss of control to generate categories.
Fourth, the published investigations that Rogers recently cited in support of the RCRAS are those
authored by him and his colleagues,440 and our searches of Google Scholar and the Web of Science database
turned up no independently conducted U.S. studies.441 These problems may help explain the instrument’s
limited adoption in the three decades since its publication,442 which in turn might lead practitioners to worry
about whether RCRAS-based opinions would be challenged because the instrument does not enjoy “general
acceptance” in the relevant professional community.443
Despite these concerns, a reasonable basis for defending use of the R-CRAS flows from considerations
described elsewhere in this book [see § 9.09(c)] regarding “structured professional judgment” (SPJ). Like SPJ
in the risk context, the RCRAS can provide help to examiners without leading them directly to a particular

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judgment. In scoring the RCRAS variables, the examiner is forced to consider each of them and its potential
significance with respect to the examiner’s final opinion about criminal responsibility. In this respect, the R-
CRAS can be regarded as an SPJ tool that functions as an aide-memoire for forensic clinicians. The measure
contains many factors that an examiner should consider in an MSO evaluation, and it may help clinicians
organize their interviews or their thoughts about the data gathered in investigation.
For this reason, Packer has suggested that “the R-CRAS would be an aid to guide an evaluator regarding
which issues to address and a framework for integrating the data into an analysis of the legal criteria.”444 The
R-CRAS may also help evaluators “make their most important contributions by clarifying for the trier of fact
the underlying bases for professional judgment, hence potentially highlighting the areas of disagreement so
that expert testimony can be of more assistance to judge or juror.”445 At the same time, examiners who use the
R-CRAS should avoid overly relying on the instrument’s dictates about ultimate-issue questions, or on how
the instrument ranks and sorts judgments about matters that are logical, intuitive, or based on common sense
(rather than clinical expertise).

(2) Other Psychological Tests and Diagnostic Procedures

In the minds of many practitioners, conventional psychological testing should be an integral part of all MSO
evaluations.446 In a survey of experienced forensic clinicians, approximately two-thirds of respondents rated
the use of tests as either “essential” or “recommended.”447
Despite this apparently common practice, however, we suggest a much more limited role for testing in the
MSO evaluation. The reasons for this position, discussed in full in § 3.03(a), can be summarized briefly here.
Perhaps most obvious is that psychological tests provide information about current functioning, whereas an
MSO examination seeks to reconstruct the defendant’s prior mental state.448 Some aspects of personality and
behavior may be relatively stable over time (e.g., intelligence), but most conditions of interest in the MSO
examination change naturally (the cyclical nature of some disorders, spontaneous remission, reactions to
situational factors or to medication, etc.). Unless the testing takes place soon after the alleged offense, it will
often provide information that is only marginally relevant. Second, and perhaps even more important, tests tap
a general level of functioning, whereas the behaviors of interest in the MSO evaluation are relatively specific
(e.g., thoughts or feelings about the particular victim or situation). Third, the professional literature lacks
sound empirical studies demonstrating either that psychological test data can establish a link between
particular diagnostic conditions and legally relevant behavior in individual cases, or that they are useful for
assigning individuals to discrete legal categories (e.g., sane vs. insane). Although conventional testing can
certainly perform a corroborative function [see § 3.03(a)], it generally should not play a primary role in MSO
evaluations.
This analysis applies to other laboratory procedures as well. As the American Academy of Psychiatry and
Law notes:

Brain imaging remains a rapidly expanding area of scientific research. Results from MRI, functional MRI (fMRI), positron emission
tomography (PET), single-photon emission computed tomography (SPECT), and diffusion tensor imaging (DTI) studies may be requested
by attorneys in an attempt to show concrete evidence of brain abnormalities. These presentations may be persuasive to a jury, regardless of
their scientific merit or relevance to mental state at the time of the crime. Currently, imaging procedures may help confirm or establish the
diagnosis of certain brain disorders, but they do not provide any evidence that a defendant met either the cognitive or volitional prong of the

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 insanity defense. Further, the presence of a brain lesion documented through brain imaging does not speak directly to a defendant’s
culpability.449

Similarly, as noted in the discussions about MSO and epilepsy [see § 8.04(b)],450 knowing that a defendant
has had an abnormal EEG in the laboratory gives no particular assurance that seizure activity or postictal
complications affected actions at the time of the alleged offense. Such findings may support a medical
diagnosis and suggest something that may have affected a person’s behavior, but they do not provide
information about the specific thoughts, feelings, motives, or behaviors that may have contributed to the
alleged crime.
Some instruments that focus on the defendant’s phenomenology (thoughts, feelings, perceptions, beliefs)
may be more useful. Certainly, when malingering is suspected, a number of instruments can help [see §
3.06].451 Furthermore, Rogers suggests that the Schedule of Affective Disorders and Schizophrenia,452 which
has very good reliability, can help mental health professionals gauge symptom severity at specific times and
can (with slight modifications) help in retrospective assessments of defendants’ functioning around the time of
an alleged offense and of whether mental illness is feigned.453 Similarly, although they do not describe their
recommendations as formal instruments, Knoll and Resnick have published useful lists that can help
examiners think through whether information from the defendant and other sources can provide evidence of
MSO-related considerations such as knowing wrongfulness or loss of control at the time of an alleged offense,
spurious and genuinely exculpatory relationships between symptoms and criminal acts, and clinical signs of
malingering.454 Given the centrality of delusional thinking to many forms of psychosis, and the prevalence of
psychotic disorders among insanity acquittees [see Table 8.1 and accompanying text], these approaches may
be more useful than more general personality and diagnostic measures in the assessment of MSO.
As a general matter, however, laboratory and psychological tests have much less relevance to the MSO
evaluation than has previously been claimed. These procedures can in some cases provide valuable
supplementary data to interview and investigative procedures, but we urge forensic examiners to acknowledge
the limited use of these techniques for reconstructing mental states. Expert witnesses should be prepared to
concede the limitations on reliability and validity of tests they use, and to make other appropriate
qualifications to prevent the trier of fact from being misled about the precision of these techniques.

8.07. CLINICAL FORMULATIONS ABOUT MSO

After investigating and attempting to reconstruct a defendant’s MSO, a clinician should have a wealth of
information that is potentially useful to the judge and jury. How best should the clinician organize and present
these findings?
The first judgment is whether the evaluation revealed the kind of severe psychopathology that could
provide a clinical basis for an MSO defense. When such pathology is not present, a report to this effect will
usually lead the defense to abandon the MSO strategy in favor of another.
When severe psychopathology was present at the time of the alleged offense, the clinician must
contemplate the possible interactions between the symptoms and offending behavior. Potential relations
include (1) some “causal” role (i.e., the offending behavior reflected or was in some way a consequence of the
symptoms present); (2) coincidental occurrence (i.e., symptoms were present at the time of the alleged offense,

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but did not contribute directly to the criminal behavior; and (3) a postevent role (i.e., the mental illness
developed after, and possibly was caused by, the criminal act).455 In the latter two instances, the clinician will
need to describe findings indicating that the psychopathology was not a significant contributor to the offense
and suggest other, non-“crazy” motives or reasons for the criminal behavior. These might include evidence of
planning (but not always, as the cases of John Hinckley and Andrea Yates show), cooperation with others,
having collaborators, and efforts to avoid detection or apprehension. The clinician should also be aware,
however, that the MSO investigation may yield information that does not all point in the same direction. In
some cases, psychopathology may have contributed to the behavior, although other information suggests some
level of culpability. In such instances, the clinician should explain how both types of information were
considered in formulating the opinion.
When clinical evidence does provide grounds for an insanity defense, the clinician’s task is to explain how
the link between symptoms and behavior reflects the particular relationship in the prevailing insanity test. In
Chapter 1, we discuss in some detail a seven-level typology of inferences about mental states [see § 1.04(a)]. It
ranges from straightforward observations about behavior (e.g., “The defendant was muttering”) to opinions on
the ultimate legal issue (e.g., “The defendant was sane at the time of the offense”). As we stress throughout
this volume, mental health professionals should generally be reluctant to offer inferences at levels 6 and 7,
which require a social and moral judgment or a legal interpretation that is usually not within the realm of
mental health expertise. As the data permit, however, inferences at other levels are defensible if based on
specialized knowledge that will help factfinders or on a specialized skill that can produce otherwise
inaccessible knowledge.
Generally, as we suggested in § 8.02(c)(2), the most relevant inferences will be those based on the
defendant’s conscious reasons for committing the offense (which may be ascertained from the defendant or
inferred from other information). Occasionally, however, motives of which the defendant was not aware
explain his or her behavior. The following subsection looks at both types of formulations.

(a) Formulations Referring to Behavior, Conscious Motives, and Unconscious Motives

In reporting on defendants’ conscious reasons for acting, forensic examiners can usually offer, at a minimum,
extensive descriptive information (levels 1 and 2) based on their own observations and those of their
investigative sources. When they observe a pattern of behavior over time (e.g., through the social history
study) or a complex of behaviors recognizable as a clinical syndrome, examiners can also provide constructs or
diagnoses. With appropriate caution, examiners may even elaborate on behaviors often associated with the
syndrome or diagnosis—for example, type and degree of cognitive impairment, perceptual disturbances, range
and control of emotional expression, and so on (levels 3 and 4).
With respect to the role of diagnosis (level 4), a few words are in order. The importance of diagnosis in
reconstructive evaluations has been both overstated and understated. Its importance has been overstated by
those mental health professionals who, for example, mistakenly equate certain conditions (e.g., symptomatic
schizophrenia) with legal insanity; as the empirical data in § 8.04 illustrate, psychosis does not equal insanity.
The position at the other extreme is that of Morse,456 who argues that diagnoses are irrelevant. He avers that
diagnoses are abstractions that tell the trier of fact nothing about a defendant’s specific, legally relevant

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behavior and are not even translatable (at least by mental health witnesses) into legal terms such as “mental
disease or defect.”
Although Morse has a valid point, he somewhat understates the utility of diagnosis to clinicians, lawyers,
and factfinders. First, determining which diagnoses are present may help forensic examiners calibrate their
sights. For instance, as a legal matter, certain diagnoses rarely support an insanity defense, and as noted in §
8.02(c)(1), some jurisdictions explicitly limit the applicability of specific diagnoses to certain MSO defenses
(e.g., drug or alcohol intoxication may be excluded as a basis for legal insanity). Knowledge of these
diagnostically based legal limitations should help keep speculative tendencies in check. Similarly, a diagnosis
may provide the lawyer with a shorthand device for assessing the probable legal relevance of the findings. It
may also help determine the particular legal doctrine (e.g., insanity vs. automatism) that will be the focus of
the defense’s case.
Finally, clinicians’ knowledge of different disorders can be of help to factfinders. Contrary to Morse’s
assertion, for instance, it may assist in determining the presence of a legally sufficient “mental disease or
defect.” Although we agree with Morse that diagnoses are generally not translatable into this legal concept,
they may nonetheless provide the factfinder with information about the fit between a defendant’s mental state
and the notion of “disease” that underlies the insanity defense. For example, jurors or judges may find it useful
to know that disorders such as schizophrenia, bipolar disorder, or psychotic depression—which (like most
medical conditions) have genetic underpinnings, reflect neurobiological abnormalities, remit in response to
medication, and have a predictable course if left untreated—conform to the disease model better than do
disorders that lack some of these features. Put another way, a psychiatric diagnosis may facilitate consideration
of the extent to which biological, personality, and/or situational factors influenced legally relevant behavior.
Along the same lines, as noted in § 8.02(c)(1), testimony about diagnosis may help the factfinder assess
whether the illness is “severe” (as many jurisdictions require).457
Diagnostic information may also help the factfinder evaluate the type of impairment caused by the mental
disorder. For instance, the research on incidence of violence in different diagnostic groups [discussed in §
9.09(c)(5)] may interest judges and juries; making such information relevant to a particular case would require
mentioning the defendant’s diagnosis. It may also help the factfinder (as it does the clinician) to assess the
defendant’s credibility (e.g., is the defendant’s claim to have developed multiple personalities at age 42
consistent with the DID diagnosis?; consider also the discussion of Clark in § 8.03(b)).
Despite all these potential uses of diagnoses, however, we reiterate that a diagnosis, standing alone, is
virtually useless to the legal system. The most relevant information is that specifically focused on the accused
person’s characteristic thoughts, feelings, and beliefs. Put in clinical terms, symptoms are more important than
diagnoses to resolution of legal issues.
The same sort of approach is recommended if and when the clinician proceeds to level 5—the relationship
of the clinically relevant behavior to the alleged criminal act. Clinical testimony can be useful here, but only to
the extent that the clinician sticks to providing a professionally informed explanation about the defendant’s
judgment, concentration, focus of attention, interpersonal functioning, and other aspects of experience at this
particular point in time. In this regard, it should be recalled that the legal doctrines discussed earlier in this
chapter tend to sort into defenses based on either cognitive impairment (e.g., M’Naghten, the first prong of
ALI, and diminished capacity) or volitional impairment (e.g., irresistible impulse, the second prong of ALI,

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and automatism). Cognitive impairment may be reflected in a variety of ways, but most typically through
perceptual distortions (e.g., hallucinations), unusual thought content (e.g., delusions or idiosyncratic
interpretations of ordinary events), or disruptions in the thought process (e.g., confusion, disorganized
thinking, or illogical thoughts). Volitional impairment is most obviously reflected in states in which executive
control mechanisms are impaired—as in manic episodes, episodes of dissociation or depersonalization, and
confusional states following head trauma or epileptic seizure (the postictal phase)—or in cases in which
criminal behavior occurs despite a desire not to commit it (consider Case Study 8.2).
Careful description at inference levels 1–5 of the defendant’s MSO should be sufficient to inform the
judgments that should properly be left to the trier of fact—inference levels 6 (penultimate issue) and 7
(ultimate issue). We recognize that the legal system often expects or requires mental health experts to provide
explicit statements on the penultimate or ultimate issue, either through statutes that require that reports state
explicit opinions on insanity or (for example) knowledge of wrongfulness, or through questions during
testimony. Nonetheless, mental health professionals best serve the trier of fact when their reports and
testimony focus on levels 1–5.
The following cases, illustrating possible formulations relating symptoms of psychopathology to legally
relevant behavior, adhere to this prescription. Aware of the pressures or requirements that examiners may
encounter to explicitly address legal criteria, however, we provide in Chapter 18 suggestions for indicating
how a defendant’s symptoms may reflect elements of a (level 6) legal formulation regarding insanity [see §
18.07].

Case 1: Delusional Beliefs. A defendant charged with unlawfully stealing a bus was diagnosed as suffering from paranoid schizophrenia,
with symptoms that included delusions of grandeur at the time of the offense. Believing that he was a high government official, he
commandeered a bus from a Greyhound terminal at 6:00 in the morning. The clinical formulation included the following:

Mr. Doe knew that he needed to return to his home city. While he told me that he knew that the Greyhound bus did not literally
belong to him, he stated that he felt entitled to take it. Mr. Doe described the strong belief (which was of course erroneous), that he
was an important law enforcement official—specifically, the FBI director. Records from several prior psychiatric hospitalizations
describe similar exaggerated and erroneous beliefs of this type by Mr. Doe in the past. It appears that his delusional belief contributed
to his taking the bus, as he also reported believing that he had the discretionary authority to commandeer public transportation
vehicles in the execution of his official duties. Mr. Doe had difficulty distinguishing between his legitimate authority and the
authority he delusionally believed he had because of his illness.

Case 2: Intellectual Disability. A young man with a mild intellectual disability was charged with third-degree sexual misconduct after
approaching a woman outside the lion’s cage at the city zoo, grabbing her from behind, and briefly fondling her breasts before running
away. The clinical formulation included the following:

Mr. Roe functions intellectually in the lowest 1–2% of the population of persons his age. During psychological testing, he was
presented with hypothetical social situations involving two or more people and was asked to describe what might be going on between
them. In most instances, his responses were brief, were poorly articulated, and reflected a poor understanding of how social
relationships are developed and appropriately maintained. This is consistent with the information provided by family members, who
reported that Mr. Roe did not know how to approach other people or make friends. Family members also told me that he was shy, felt
uncomfortable around women, and had no dating or courting experiences.
When asked to describe what happened at the zoo, Mr. Roe provided a factual account that, consistent with what I have already
described regarding his limited social skills, reflected his naiveté in these matters. He reported that he had seen his cousin and
girlfriend “hugging on” each other as they walked through the zoo with him, and he noted, “It didn’t seem like she minded it at all.”
He also indicated that during recess at school, “The boys chase the girls around the playground and grab them. They usually just
laugh and giggle. . . . I figured she [the victim] would too.”

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 In summary, Mr. Roe has an intellectual disability, extremely poor social skills, and very minimal ability to discern appropriate
behavior in social contexts, particularly when relationships with women are involved. His intellectual and social impairment makes it
difficult for him to distinguish between, for example, what is appropriate conduct with classmates on the school playground and what
would be appropriate contact with a stranger in a public place. This difficulty contributed to his alleged acts at the zoo.

Case 3: Dissociation. A young man faced a charge of second-degree murder. The victim was a woman who had been his date on the
evening in question; she died as a result of extensive internal bleeding and ruptured internal organs secondary to a severe vaginal assault.
The defendant claimed amnesia for the incident. The examiner located another woman, the defendant’s usual girlfriend, who described
a similar but substantially less serious assault on her approximately a week before the crime. She reported:

While we were making love, he suddenly changed. It was like he was a different person—like he wasn’t really there. He looked off to
the side, his eyes were half closed, and he had this strange look on his face. He kept saying, “You’ve wanted this for all these years . . .
now you’re going to get it.” And then he shoved his whole hand in me. I don’t know who he thought I was, because I’ve only known
him a few months. It didn’t matter, because he was off in another world. I yelled and told him to stop, that it hurt, but it was like he
didn’t even hear me. No response, no recognition, no nothing. Then, suddenly, he quit. He just changed back into himself. He didn’t
even know what had happened.
In the clinical formulation, the examiner relied heavily on this witness’s account of the assault, offering that the present offense
could feasibly have occurred during a similar episode. The examiner suggested that the defendant “may have experienced a brief
dissociative episode during which he was unaware of or unresponsive to others in his presence or his impact on them. This
impairment in his ability to receive and critically process information, including feedback about his own behavior, would have made
it difficult for him to modulate his actions.”

The preceding examples illustrate how clinicians might provide descriptive accounts and logical links
between symptoms (and diagnoses) associated with conventional psychiatric disturbances and alleged criminal
behavior. Similar accounts could be developed to explain the possible impact of hallucinations, the effects of
drugs and/or alcohol, or other symptom patterns determined to have been present at the time of an offense
[see, e.g., the Ed Wertz and Seth Hedges reports, § 19.04].
Occasionally, however, a clinician may feel that neither a mental illness nor a defendant’s honest recitation
of what the defendant believes were his or her real motives for the alleged behavior provides a convincing
explanation for the event. If a person knowingly commits a criminal act, the fact that it was motivated by
unconscious feelings or beliefs does not change its voluntary nature or its intentionality. Yet in situations in
which an analysis of the defendant’s apparent conscious motivations are enigmatic, formulations that explain
more plausible—but unconscious—motives might be offered as the basis for a MSO defense.

Case 4: Inadequate Conscious Explanations. To better explain our point here, we offer the case of F.N. as an illustration of the potential
usefulness of psychodynamic explanations in a legal setting. F.N. was a divorced white man in his mid-20s. One evening, he went to the
apartment of a woman whom he had known only as an acquaintance of his ex-wife. She recognized him and allowed him to enter the
apartment, whereupon he commenced a lengthy and brutal sexual assault involving verbal and physical sadistic acts, including the
forcing of various foreign objects into the victim’s anal cavity. The case appeared to be a culpable rape: The defendant did not have a
documented history of any major psychiatric disorder, and from the victim’s account, he very clearly knew what he was doing at the time
of the offense. Nonetheless, a clinician might speculate:

Certain features of the defendant’s behavior, as described by the victim, suggested some explanation for the crime other than a mere
desire to brutalize a woman. She described him as speaking throughout the ordeal in an unusual voice (an affected Hispanic accent),
and on several occasions he stated to her rhetorically, “How do you like getting it from a big stud Mexican?” Because the defendant
was white and not a Latino, the comment made no sense. The comment, plus the severity of the attack, suggested that the defendant
was acting out hatred toward someone else. Furthermore, when the assault was terminated, the defendant made no effort to escape
the scene; rather, he went to the victim’s bedroom, lay down on the bed, and went to sleep.
During the forensic interview, the defendant recalled little of the assault. Exploration of the defendant’s psychosexual history,
however, revealed some startling information. He recalled how his mother had physically coddled and caressed him well into late

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 adolescence, and he intimated that he might have had intimate sexual contact with her at the age of 18. Long after they were living
apart, she would continue to call him on the phone and describe in graphic detail her latest sexual encounters. One such occasion that
stuck particularly firmly in his memory was his mother’s account of her escapades with a “big stud Mexican.” In light of these findings
and the defendant’s amnesia for the assault, the examiner concluded that the defendant’s repressed anger toward a seducing mother
provided an explanation (although not necessarily a legal excuse) for his behavior—one that might otherwise have been unavailable to
the factfinder.

Formulations such as the one just described may provide a rationale for unusual defendant behavior when
medical-model formulations and common-sense inferences do not explain the available data. In F.N.’s case,
the defendant’s behavior looked like a sadistic rape, but such an account would not have explained his altered
voice quality and repeated (and peculiar) reference to “getting it from a big stud Mexican.”
Having said this, we add that formulations imputing unconscious motives carry considerable risks when
applied to criminal behavior.458 One problem is that psychodynamic explanations and behavioral explanations
that appeal to unconscious thinking and processed apply to much of human behavior—criminal or
noncriminal, “normal” or “crazy.”459 The same theoretical constructs and explanatory devices that make sense
of unusual behavior also apply to behavior we would consider perfectly ordinary. Virtually every criminal case
—including those in which obvious criminal motives appear conscious and controlling—is susceptible to
psychodynamic theorizing. Moreover, such theorizing is speculative, and the main constructs and explanatory
devices of the psychodynamic theory are so flexible that two similarly oriented practitioners might offer
strikingly different formulations, neither of which might be valid by external criteria.460 For these reasons,
examiners should attempt to explain behavior through appeals to unconscious motives only when ordinary
folk-psychological, common-sense motives or defendants’ conscious, illness-driven motives fail to account for
what happened. In such a case, the clinician should identify the specific features of the case that invite
alternative analyses, weigh the applicability of alternative theories, and concede that other formulations may
offer other feasible explanations. Finally, the clinician should be candid about the reasons for selecting the
particular theory chosen, and should be prepared to discuss whether any research supports the reliability and
validity of formulations based on that theory.

(b) Multiple Formulations

Multiple opinions about MSO defenses may be appropriate in cases that involve multiple charges or
conflicting “facts.” Below are two examples of this situation.

Case 5. Space Invaders. The defendant, who had a prior felony conviction for drug possession, was arrested and charged with (1)
unlawful discharge of a firearm in the city limits and (2) being a felon in possession of a handgun. The clinical evidence indicated that
the defendant believed aliens were trying to get into his apartment to harm him. (He had previously reported these concerns to his
landlord, who had changed the locks!) On the evening in question, the defendant believed that aliens were flying in a spacecraft above
the apartment, which led him to fire several shots through the apartment skylights. The defendant’s delusional beliefs about the space
invaders provided a clinical basis for an insanity defense on the charge of unlawful discharge of a firearm.
His explanation for having a gun in his possession was very different. He said that he had obtained the handgun many months earlier,
long before any concerns arose that aliens might be out to do harm to him. He stated that he had “kept a gun around” for many years, and
that it was simply something that “made me more comfortable.” Nothing in the defendant’s account suggested any lack of awareness that
his prior conviction made it illegal for him to possess the gun. Consequently, the clinician did not support an insanity defense for the
second charge.

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 A second situation that might call for multiple opinions arises when the facts are unclear. Although only
one set of “facts” prevails at trial (the version believed by the trier of fact), forensic examiners may be presented
at the pretrial evaluation stage with accounts that, if not literally contradicting each other, may lead to
potentially conflicting impressions about the role or relevance of psychiatric symptoms. Consider the
following case:

Case 6. Accidental Shooting, Self-Defense, or Insanity? The defendant was a 62-year-old man charged with the murder of his 24-year-
old son. The defendant’s account of events (most of which was corroborated by his wife, who was present in the home when the shooting
took place) indicated that an argument with his son had precipitated the episode. On the day of the alleged offense, the defendant had
placed a pot of chili on the stove to warm and was sitting on the back porch reading a magazine. When he looked into the kitchen, he saw
his son standing over the stove and thought that he might be putting something in the chili. The defendant got up from the porch,
confronted his son in the kitchen, and warned him, “Leave my food alone!” The man then returned to his seat on the porch and
continued reading the magazine. A few moments later his son came out of the kitchen and, without warning, hit the defendant in the
head with his fist, breaking his glasses and knocking him out of his chair. Another verbal argument ensued, but the wife separated the
father and son and quelled the argument.
The defendant then went to his bedroom, retrieved a shotgun (which was already loaded) from the closet, and returned to the porch,
placing the gun next to the chair where he was reading. Shortly thereafter, the son returned to the back porch and began shouting at his
father. The defendant reported that he picked up the gun, pointed it at his son, and warned his son, “I don’t want no more trouble with
you. Just leave me alone.” The son continued to shout abusively at his father and, according to the defendant, came toward him. Not
wanting to shoot his son, the defendant reported that he backed across the porch, away from his son, repeating his plea that his son leave
him alone. His son, however, continued toward him in what the defendant perceived to be a threatening manner. As he continued to
back-pedal across the porch, the defendant stumbled over a large planter, which caused him to lose his balance. As he fell backward, the
gun discharged, killing his son. The defendant denied any intention to kill his son and asserted that the gun discharged “accidentally”
due to the collision with the planter.
On these facts, the defense might feasibly proceed on the grounds of either self-defense or an accidental shooting, about which the
forensic examiner would probably have little if anything to offer. Consider, however, the additional clinical information in the case.
Reports from the defendant, his wife, and additional third parties confirmed that the defendant had been extremely paranoid for the
prior eight to ten months. He had experienced a sudden change in his duties at work (reduction in hours, with some of his previous
duties being passed on to a younger man) and had developed suspicions that his wife and son, working in collusion with his employer,
were trying to harm him. Six months earlier, he had moved out of the bedroom that he had shared with his wife for 41 years and taken
refuge in a small room at the back of the home. He boarded up the windows to that room from the inside and installed multiple locks on
the door to prevent anyone from entering. At home he ate only food that he made for himself, most of which he prepared on a small
warming plate in his own bedroom. He rarely spoke with his wife or son except to make small talk or to take care of essential family
business, because he believed that microscopic transmitters, hidden on his clothing or in his car, picked up anything he said and
conveyed it to his employer. On the day of the shooting, the initial confrontation with his son in the kitchen reflected some contribution
of these paranoid symptoms: The argument had begun when he accused his son of placing “poisons and toxins” in the chili. This
resulted in the son’s accusations that he was being “crazy and paranoid,” to which he responded indignantly, and the escalation of events
then occurred as described above.
In this case, the examiner clearly had evidence of the presence of mental illness and the possible contribution of paranoid delusions to
the dispute that gave rise to the shooting. The extent to which this evidence would support a case of insanity, however, is murky. If the
victim did in fact threaten the defendant, a self-defense claim might be plausible. If the defendant did in fact slip on the porch, making
the discharge of the gun completely accidental, an acquittal would be possible. (For instance, the defense might be able to show that
there was damp soil on the seat of the defendant’s pants as a result of falling backward into the planter, or that the geometry of the
entrance and exit wounds relative to the height of the defendant and the victim suggested that the gun discharged as the defendant was
falling.)

In cases such as this, the examiner should keep his or her distance from the ultimate issue regarding
insanity. A forceful conclusion that the defendant in Case 6 was insane would, at least implicitly, indicate the
examiner’s belief that the alleged offense was committed intentionally and unjustifiably. A better approach
would involve tentative, and probably different, inferences about the potential relevance and contribution of

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the defendant’s symptoms to the shooting. These inferences would depend on the extent to which physical
findings and other evidence (e.g., the wife’s or other witnesses’ testimony) provided support for other defense
claims that would obviate the need for, or render moot, opinions about legal insanity.
More generally, as developed more fully in Chapter 18, if the facts support two different crime scenarios, it
is not the clinician’s job to play investigator and decide which is correct. Instead, the clinician should recount
the possible versions of the facts and offer a conditional opinion. For instance, the report might read: “If facts
A and B are correct, then my opinion is C; if, on the other hand, facts X and Y are true, then my opinion is Z.”

(c) Cautions Regarding Formulations of Volitional Impairment

As noted in § 8.02(c)(4), several commentators have expressed concern about the conceptual and practical
basis for insanity formulations based on volitional impairment.461 We encourage forensic examiners to read
these analyses to gain a fuller understanding of problems associated with assessing this complex issue. Here we
make three points relevant to examiners working in jurisdictions where the law allows “capacity to conform
conduct” and similar formulations to figure in insanity defenses.
First, the mere fact that a defendant experienced strong urges to commit a crime does not establish a lack
of control for legal purposes. If it did, not only the psychotic individual but the person who steals to finance an
addiction, the person who sexually molests a child, and perhaps even the corporate executive who steals out of
greed could be said to be volitionally impaired (although a successful insanity defense would still require a
mental disease or defect). Furthermore, as Morse notes,462 compulsive behavior is generically defined by the
American Psychiatric Association as “intentional” and “purposeful” conduct, which undermines the assertion
that people with compulsions lack the ability to conform their conduct to the requirements of the law.
A second, related point is that volitional impairment cannot be equated automatically with impulsiveness.
Whereas “impulsivity” enjoys considerable popularity as a research construct, little consensus exists as to its
boundaries. Impulsiveness is often assessed clinically as a unitary trait, when in fact it may involve multiple
facets, not all of which might be relevant to an analysis of volitional behavior.463 Indeed, as Morse again
notes, no clinical technology allows the “gauging the strength of criminal desires, or the weakness of the will
to resist them.”464 Thus it is probably “impossible to differentiate ‘irresistible’ impulses from those simply not
resisted.”465
Third, we repeat our admonition about making the causation–compulsion error. As noted in § 8.04(h), a
mere correlation between criminal activity and a particular gene, brain defect, chemical imbalance, or
childhood event does not prove that a person was compelled, or even predisposed, to commit it. If that were
true, all behavior would be compelled, because all behavior emanates from a biological substrate—the human
brain. Clinicians (and lawyers) should resist suggesting that anomalous biological or historical traits, in the
absence of evidence of strong urges or automatic behavior, indicate an inability to act in a law-abiding
manner.
A possible implication of these points is that volitional impairment may be better evaluated in terms of
cognitive impairment, with a particular focus on the rationality of the outcomes sought by the defendant. Was
the criminal act “unthinking”? If not, were the desires and beliefs that motivated the criminal action
nonetheless unintelligible, significantly inconsistent with one another, or incoherent? Answering these types

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of questions may be more fruitful than trying to determine whether the individual “willed” the action, had the
“ability to control” his or her behavior, or acted “impulsively.”466

(d) Clinical Assessment of Diminished Capacity

We have focused almost exclusively on the insanity defense in the clinical portion of this chapter on MSO
defenses. In practice, the automatism, diminished capacity, diminished responsibility, and other affirmative
defenses rarely arise and, as noted in § 8.03, are usually only available in highly restricted circumstances.
Furthermore, most clinicians who are familiar with the insanity inquiry are well equipped to carry out these
other inquiries. All require delving into cognitive or volitional impairment (or both) at the time of the alleged
offense, and the legal section of this chapter provides the clinician with a sufficient framework for such
evaluations.
The one MSO defense that might prove difficult to grasp, even for those clinicians who are familiar with
criminal law doctrine, is the diminished capacity defense, which involves a determination of whether the
defendant possessed the mens rea for the offense. Thus it is worth emphasizing a few points about this
particular defense.
First, as noted in § 8.03(b), most defendants, including most seriously disordered defendants, will not
qualify for this defense—a point that can be illustrated by reexamining some of the cases described above. For
instance, in Case 1 the defendant clearly intended to take a bus (albeit for delusional reasons), and in Case 5
the defendant didn’t discharge his gun accidentally or randomly, but intentionally discharged it to scare off
“aliens.” As these examples demonstrate, very disturbed individuals nevertheless will often consciously pursue
the specific actions that lead to their charges. Intentional behavior, albeit colored by and in the service of
delusional beliefs, is still intentional and thus satisfies the law’s required mental state for the offense alleged.
Some defendants do lack the requisite mens rea due to mental disorder, however. In addition to the actual
examples provided in § 8.03(b), consider a hypothetical situation posed by one commentator, involving an
individual with severe intellectual limitations who is charged with larceny.467 That crime requires the intent to
deprive another person of his or her property. An individual with a moderate or severe intellectual disability
may be incapable of understanding the abstract concept of (personal) property; things may be just “things” to
this person, not possessions “owned” by someone else. If so, the mens rea for larceny would be absent.
Clinicians must also be sure to understand their role in diminished capacity cases. The ultimate question
addressed by the defense is whether the defendant had the mens rea for the offense. But if, as we suggest,
experts should avoid this issue, the clinician might best think of the diminished capacity in terms of whether
the defendant had the capacity to form intent—an approach that many courts in fact require of experts. Of
course, when this question is answered in the negative, it is tantamount to saying that the defendant did not
have the requisite intent; one cannot form an intent that one lacks the capacity to form.468 On the other hand,
consistent with a preference for non-ultimate-issue testimony, an affirmative answer to the capacity question
answer still leaves to the factfinder the determination of whether the individual did in fact intend the alleged
criminal act.
Some clinicians may be inclined to offer opinions about a defendant’s capacity to form intent on the basis
of whether the alleged criminal behavior is characteristic of the defendant. For example, consider a defendant

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who is generally quiet, shy, withdrawn, passive, dependent, and prone to avoid conflict. If this person’s history
is bereft of prior incidents of aggressive or violent behavior, a clinician might be tempted to opine that the
defendant “could not form the intent” associated with a violent or aggressive offense. Yet such an opinion,
based on the appraisal of broad personality traits and dispositions rather than behavior and thoughts at the
time of the offense, is really character evidence in disguise. This clinical sleight of hand should be avoided; if
such testimony is presented, it should be candidly described as character evidence.
A third point about the diminished capacity defense is practical. There is no special technology for
assessing the specific mental element of an offense or the capacity to form it. As with the insanity defense, the
clinical approach involves interviewing the defendant and collecting relevant third-party information. For
instance, one might infer capacity to form intent from the facts that after seriously harming someone, the
defendant stopped at a gas station, purchased gas, and drove home—actions involving a series of complex
behaviors (e.g., going in the correct general direction, making the correct turns, arriving at his or her own
house rather than someone else’s) that suggest the capacity for intentional conduct. Yet such evidence does
not directly address the specific time of the offense. In the case just described, for example, the defendant
might have experienced a time-limited alteration in consciousness (e.g., due to epilepsy) during the offense.469
Thus clinicians must be careful to limit the reach of their inferences about capacity based on intentional
collateral behavior.

8.08. CONCLUSION

As a way of synthesizing the various points made concerning the clinical evaluation of MSO, we offer Figure
8.1. Note that once the MSO investigation is completed, the clinician can focus on five different types of
dysfunction (in the left-hand column of the “MSO Logic Tree”) in determining whether the defendant’s
MSO was legally relevant. As pointed out earlier, the actual MSO defense the defendant presents is not a
concern of the clinician’s; the figure lists the defense or defenses most probably related to each type of
dysfunction merely to tie together the points made in the first half of this chapter.

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 FIGURE 8.1. The MSO evaluation.

BIBLIOGRAPHY

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Clark v. Arizona, 548 U.S. 735 (2006).
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Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954)
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HENRY HART, PUNISHMENT AND RESPONSIBILITY (1968) (see particularly 90–112 on unconsciousness).
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M’Naghten’s Case, 10 Cl. F. 200, 8 Eng. Rep. 718 (H.L. 1843).
MICHAEL MOORE, LAW AND PSYCHIATRY: RETHINKING THE RELATIONSHIP (1984) (see in particular chs. 6, 10).
NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW (1982).
Stephen J. Morse, Causation, Compulsion, and Involuntariness, 22 BULLETIN OF THE AMERICAN ACADEMY OF PSYCHIATRY & THE LAW 159

340
 (1994).
Stephen J. Morse, Diminished Rationality, Diminished Responsibility, 1 OHIO STATE JOURNAL OF CRIMINAL LAW 289 (2003).
IRA K. PACKER, EVALUATION OF CRIMINAL RESPONSIBILITY (2009).
MICHAEL PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENSE (1994).
Christopher Slobogin, A Defense of the Integrationist Test as a Replacement for the Special Defense of Insanity, 42 TEXAS TECH LAW REVIEW
523 (2009).
Christopher Slobogin, The Guilty But Mentally Ill Verdict: An Idea Whose Time Should Not Have Come, 53 GEORGE WASHINGTON LAW
REVIEW 494 (1985).
HENRY STEADMAN ET AL., BEFORE AND AFTER HINCKLEY: EVALUATING INSANITY DEFENSE REFORM (1993).
United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
Peter Westen, The Supreme Court’s Bout with Insanity, 4 OHIO STATE JOURNAL OF CRIMINAL LAW 143 (2006) (criticizing Clark).
Patricia A. Zapf et al., Assessing Criminal Responsibility, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 315 (Irving B. Weiner & Randy K.
Otto eds., 4th ed. 2014).

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CHAPTER 9

Sentencing

9.01. INTRODUCTION

“Sentencing” is the dispositional phase of the criminal process. A sentence may be imposed only after
conviction. In the Anglo-American system, sentencing practices have usually been governed by one or more of
the following goals: retribution, deterrence, incapacitation, and rehabilitation.1
A purely retributive approach to sanctions focuses on ensuring that the offender receives the punishment
that is “deserved.” The only consideration is the culpability of the offender, which is usually measured by the
nature of the crime and the mental state of the offender at the time the crime occurred, but may sometimes
also involve assessment of previous criminal activity. The more blameworthy the offender, the more
punishment he or she receives.
Deterrence is usually divided into general and specific types. Like the retributive principle, general
deterrence focuses on the nature of the offense. Rather than measuring punishment according to its relative
culpability, however, general-deterrence theory considers how much punishment is needed to prevent others
from committing the offense in question. The empirical basis for assuming that a particular sanction (e.g.,
fine, probation, imprisonment) will be more or less effective than another type of sanction in “deterring”
others from committing similar offenses is weak.2 But it is obvious that in general, punishment of offenders
provides some disincentive to the rest of the population to commit crimes. Many commentators, from Jeremy
Bentham onward,3 have considered deterrence to be the sole or principal goal of punishment.
Specific deterrence, in contrast, aims at deterring not society at large, but rather a specific offender.
Implementing this principle requires assessment of the amount of punishment necessary to discourage the
particular offender from engaging in crime in the future. As such, it is closely related to both the
incapacitation and rehabilitation goals of punishment.4
Incapacitation is also designed to prevent further crimes by the offender. Like specific deterrence, and
unlike retributive and general deterrence, it focuses on what the offender will do (if not punished), rather than
on what the offender has already done.5 The predictions the incapacitation model requires can often be
difficult to make with a high degree of accuracy [see § 9.09(c)]. Nonetheless, incapacitative goals have played
a prominent role in sentencing policy, and most recently have served as justification for the hybrid sentencing-
via-commitment laws known as “sexually violent predator” statutes.
Punishment based on rehabilitation also requires a difficult prediction: Is the offender treatable?
Furthermore, it is based on the empirically shaky assumption that offenders can be “cured” of their criminal
tendencies or risk-inducing behavior through treatment programs [see § 9.07(b)].6 Like the specific-
deterrence and incapacitation concepts, the rehabilitative approach to punishment is more oriented to the
particular offender and less attuned to the nature of his or her offense than either the retributive or general-

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deterrence goals of punishment.
Of these five goals, only general deterrence does not raise clinical issues. The culpability assessment
required for retributive punishment can involve psychological inquiries similar to those connected with the
insanity defense and other mental state doctrines. The specific-deterrence and incapacitation goals may
require a clinician’s assessment of the examinee’s risk for reoffending, with or without treatment. And the
rehabilitation goal raises treatment questions even more directly.
Since mental health professionals became involved in the criminal process at the end of the 19th century,
the influence of these various punishment goals has varied considerably, and with it the role of mental health
professionals at sentencing. At times, offender-driven, forward-looking rehabilitative and incapacitative goals
prevailed—not coincidentally, when faith in the behavioral sciences was at its height. During these periods,
mental health professionals have been heavily involved in correctional schemes. At other times, offense-
focused, backward-looking retributive and deterrence goals have predominated, and the role of mental health
professionals has been more circumscribed.
This chapter begins with a brief overview of the history of sentencing. It then compares the
rehabilitative/incapacitative model of sentencing (sometimes called the “therapeutic” model) with the
retributive/deterrent model (sometimes described as the “just deserts” model) in terms of underlying premises,
the roles of the various participants, and the typical procedures used. Then follows a discussion of “special”
sentencing statutes, including those for repeat or habitual offenders, sexual offenders, youthful offenders, and
those addicted to substances or suffering from severe and persistent mental illness. A separate section on
capital sentencing, which raises special issues for forensic evaluators, is next. Finally, the chapter discusses,
from both the research and evaluation perspectives, the three issues that mental health professionals are most
likely to confront during the sentencing phase: treatment needs assessment, culpability determinations, and
assessments of violence and reoffense risk.

9.02. A BRIEF HISTORY OF SENTENCING

Problem 9.1

The legislature has decided to revamp its sentencing scheme. A criminal justice subcommittee has been
appointed the task of drafting legislation on the use of mental health information in the sentencing process.
It has asked you to testify regarding (1) whether you recommend indeterminate or determinate sentencing
(or perhaps both, depending on the type of person being sentenced); (2) under the scheme you prefer, what
role mental health professionals should play; and (3) under either scheme, what type of procedures should
be followed for making clinical determinations relevant to sentencing.

The United States imprisons more people per capita and has longer prison terms than any other Western
country.7 The increase in prison use has also outpaced population growth. In 1978 under half a million people
were imprisoned, while today there are well over two million Americans behind bars,8 and an estimated 1 out
of 20 persons will serve some time in prison during his or her lifetime.9
Imprisonment has not always been the norm in Anglo-American law, however. In England, early common
law made death the penalty for all offenses except petty larceny and mayhem.10 Even for the latter crimes,

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imprisonment was not common; the stocks and corporal punishments were the usual sanctions. The same
held true in colonial America, where incarceration was rare. Corporal punishment and banishment from the
community were frequent for crimes of violence, while fines and restitution were imposed for property
offenses.11
By the middle of the 19th century, however, imprisonment had become commonplace. Antipathy toward
execution and physical punishment as routine penalties played a role in this change, as did the disappearance
of places of exile. In addition, a belief emerged that one purpose of sentencing was the offender’s reformation.
As one scholar has noted, criminality came to be explained as “a function of defective moral training, a
byproduct of rapid urbanization and industrialization. The proposed solution was programs of moral training,”
which could best take place in an enclosed environment, separate from the criminalizing influences of modern
society.12
As this comment suggests, retributive and deterrence principles, which had dominated sentencing policy
up to this time, began to give way to rehabilitative concerns. After the Civil War, the rehabilitative goal
exerted an even stronger influence in the United States. Rooted in the new philosophy of “positivism,” it
promised that the causes of crime could be identified and cured.13 It found formal expression in 1870 in the
Declaration of Principles by the National Congress on Prisons and Reformatory Discipline, which asserted
that crime is

a moral disease, of which punishment is the remedy. The efficiency of the remedy is a question of social therapeutics, a question of the fitness
and the nature of the dose. . . . [P]unishment is directed not to the crime but the criminal. . . . The supreme aim of the prison discipline is the
reformation of criminals, not the infliction of vindictive suffering.14 (Emphasis added)

Probably the single most important consequence of this philosophy was the notion of indefinite sentences.
The National Congress recommended that such “indeterminate” terms be imposed to allow reformation to
occur on an individual basis, unhampered by artificial time constraints. In the National Congress’s view, the
ultimate length of a sentence was best determined by the success of the rehabilitation effort in a particular
case. This approach was quite different from early sentencing practices, where the penalty imposed depended
on the offense rather than the offender, and little discretion was left either to the sentencing judge or to prison
authorities.15
The positivist movement resulted in the revision of sentencing laws in almost every state. By 1922, 37
states had enacted indeterminate sentencing statutes, and most of the rest had parole systems functionally
similar to the indeterminate sentence.16 Increased confidence in the efficacy of mental health treatment also
gave rise to indeterminate sentencing provisions for “special populations” (e.g., sexual offenders and youthful
offenders) thought to be particularly amenable to interventions and treatment [see §§ 9.04(b) & (c)]. By 1948,
the United States Supreme Court was able to describe the rehabilitative model as the

prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. The belief no longer
prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and particular habits of a
particular offender. . . . Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have
become important goals of criminal jurisprudence.17

Not surprisingly, the rehabilitation model’s focus on the attributes of the individual offender and on
“curing” offenders so that they would not offend again resulted in an infusion of mental health terminology

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and methodology into the prison system: An inmate was “classified,” the functional equivalent of diagnosis;
treatment plans were developed; and the inmate’s progress was closely monitored.18 The rehabilitative model
also led to the employment of an array of clinicians and administrative personnel (on parole boards) to decide
when offenders were rehabilitated sufficiently to warrant their return to the community.
The rehabilitative/incapacitative model enjoyed primacy until the mid-1970s. At that time, however, it
came under serious attack on a number of grounds. One such ground was the perceived failure of mental
health professionals to implement the goals of the model successfully.19 Research indicated, for example, that
prison rehabilitation was not occurring,20 and that even when it did, it did little to curb recidivism.21 Indeed,
in 1980 two commentators suggested that the move away from the rehabilitative model was in part an effort
to “empty the basket of what is perceived to be its psychological and psychiatric refuse.”22
But the perceived failings of the mental health professions were only partially responsible for the hostile
reaction to indeterminate sentencing. In an attack reminiscent of some of the challenges to civil commitment
laws [see Chapter 10], the political left complained that such sentencing “legitimated the expansion of powers
used in practice to discriminate against disadvantaged groups and to achieve covert organizational goals (such
as alleviating court backlogs and repressing political opposition),”23 while the political right favored
determinate sentencing primarily as a means of ensuring more certain punishment. Others speculated that the
rehabilitative model might actually be countertherapeutic:

The principal practical effect of an emphasis on “cure” has been to encourage convicts to view their time in prison as an exercise in theatre.
They “volunteer” for group therapy and other rehabilitative programs, say the right things about the help that they have received, and even
find Christ and become guinea pigs for medical experimentation in hypocritical efforts to curry favor with parole boards. In addition, it has
become increasingly apparent that the very indeterminacy of indeterminate sentences is a form of psychological torture.24

Along the same lines, Hogarth asserted that “[i]t can be demonstrated that the rehabilitative ideal has led to
neither humane nor effective sentencing decisions. Rather, it has led to massive disparity in the name of
individualization, and longer sentences in the name of treatment.”25
The suggested antidote for all these ills was to make sentencing more predictable and certain for the
offender and the community, by once again focusing on the offense rather than the offender, and by limiting
judicial and administrative discretion.26 So-called “determinate sentencing” has gained increasing popularity
since Maine enacted the first statute establishing this type of regime in 1976. By the mid-1990s, at least 20
states had passed major revisions of their sentencing laws aimed at narrowing the permissible ranges of
sentences.27 In addition, in 1984 the federal government required determinate sentencing in the federal
courts, under a set of federal sentencing guidelines developed by a sentencing commission.28 As discussed in
more detail below, in determinate sentencing the sentence ultimately depends on the presence or absence of
specified “aggravating” and “mitigating” circumstances relating to culpability (e.g., responsibility for or degree
of participation in the crime, amount of drugs possessed, number of victims); when judicial discretion is
limited in this way, disparity and uncertainty are supposed to be minimized.
Yet determinate sentencing has been criticized as well. Studies examining the impact of various revised
state statutes have echoed the same concerns: (1) Most determinate sentencing schemes have done nothing to
curb prosecutorial discretion with respect to selection of charges; (2) sentencing disparities still exist across
jurisdictions, with minority group members and unemployed persons receiving proportionately harsher

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sentences; (3) the reduction of judicial discretion in considering individual characteristics has led to unjust
results; and (4) many of the sentencing schemes result in unduly harsh penalties, independent of any
mitigating individual characteristics.29
Particular attention has been focused on federal sentencing, with a number of symposia devoted to the
topic.30 For many of the reasons given above, critics have characterized the federal guidelines as “disastrous”
and a “debacle.”31 Adding to the ferment over the guidelines and sentencing schemes like them is the
Supreme Court’s 2005 decision in United States v. Booker.32 As described in more detail below, Booker ruled
that mandatory guidelines regimes violated defendants’ Sixth Amendment right to a jury trial, to the extent
that they permitted a judge (rather than a jury) to determine facts that, if found, lead to a sentence
enhancement above the guidelines’ maximum for the crime of conviction.
Analyzing these various claims about the rehabilitative/indeterminate sentencing model and the
retributive/determinate sentencing model requires a more in-depth understanding of the two models. We
undertake this task in the next section.

9.03. A COMPARISON OF REHABILITATIVE AND RETRIBUTIVE SENTENCING

Today any sentencing scheme can be described along a spectrum ranging from one that wholeheartedly
endorses the rehabilitative ideal to one that rigidly implements the retributive model. To summarize the
import of the foregoing discussion, the primary goal of rehabilitative sentencing is the reform of offenders.
Sentencing

is premised on the assumption that a sentencing judge, armed with an intimate knowledge of the offender’s character and background and
aided by scientific and clinical evaluations, can determine an appropriate sentence and treatment program that will rehabilitate the offender.
Under this model, the sentencing judge seeks to define the offender’s exact personality and social situations, and then prescribes an
“individualized” sentence and treatment program. Because rehabilitation is the primary concern, the sentencing judge theoretically is less
concerned with deterring future crime or achieving retribution for society.33

In contrast, the retributive model assumes that “those whose criminal actions are equally reprehensible deserve
like amounts of punishment.”34 Rehabilitation is a secondary goal, or perhaps not a goal at all. Rather, the
objective of exacting “just deserts” for the offense predominates,35 with the severity of the sentence made
proportionate to the gravity of the defendant’s criminal conduct. A related objective is to reduce the disparity
of sentences for defendants convicted of the same offense. The implications of these differing premises for the
role of legal decisionmakers, the procedures used, and the role of mental health professionals is explored
below.

(a) The Role of Legal Decisionmakers

There are four institutions that could in theory control the type and duration of punishment: legislatures,
prosecutors, courts, and parole boards. Each sentencing model has different consequences for these
decisionmakers.

(1) The Legislature

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In most jurisdictions, the legislature establishes the statutory scheme for sentencing. It does this first by
defining the different types of criminal offenses, and then by fixing the penalties for each offense (or, more
commonly, each category of offense). As outlined in § 2.04(a), there are two generic categories of offenses,
felonies and misdemeanors, with the former typically carrying penalties of over one year and the latter
bringing penalties of a year or less. There are also different classes of felonies and misdemeanors, with
different levels of severity of punishment. For example, in New York there are five major classes of felonies.
Under the rehabilitative/incapacitative model, the sentences for these different classes of crimes are
relatively open-ended. Thus, for instance, a legislature might provide that for the most serious, Class A
felonies (e.g., first-degree murder), the minimum penalty ranges from 15 to 25 years, and the maximum
penalty is life imprisonment. For Class B felonies, the authorized penalty might range from 5 years to 30
years, and so on. As discussed previously, wide ranges are provided to permit individualization of sentences by
the other decisionmakers, particularly the court and the parole board.36 The criteria for individualizing a
sentence are typically unspecified and may include the offender’s culpability, amenability to treatment, and
recidivism risk, as well as less legitimate or transparent factors.
Under a determinate model, on the other hand, sentencing ranges are much more restricted, and
individualized variations within the range are permitted only under narrow circumstances having to do with
the offender’s culpability and offense record, rather than amenability to treatment or recidivism risk. This
notion can be implemented in a number of ways. Under the “presumptive” approach, the legislature
establishes three possible terms for each offense, with the middle term to be imposed unless the court
specifically finds the existence of statutorily created aggravating circumstances (in which case the more
punitive sentence will be imposed) or mitigating circumstances (in which case the less punitive sentence will
be administered).37 For example, the legislature might establish 10 years’ imprisonment as the presumptive
term for armed robbery, but allow an 8-year sentence if the defendant can prove a legislatively recognized
mitigating circumstance (e.g., youth or mental disturbance), and a 12-year penalty if the prosecution proves a
legislatively recognized circumstance that allows the more stringent penalty (e.g., multiple counts or prior
convictions).
A second type of determinate sentencing scheme is the “definite” sentencing approach, which, similar to
indeterminate sentencing, involves setting a range of penalties within which the court imposes a sentence.38
However, unlike an indeterminate sentence, a definite sentence is fixed at the time of sentencing, so the
defendant knows the time to be served when the sentence is imposed. Furthermore, judicial discretion is
limited, because the court may consider only the factors (usually offense-related) set forth by the legislature.
In an effort to develop a third, sophisticated version of determinate sentencing, some legislatures have
vested their penalty creation authority in a sentencing commission. By 2015, at least 21 states, the District of
Columbia, and the federal government used such commissions.39 A sentencing commission sets sentencing
guidelines by developing an actuarial-like table of penalties, using as criteria the severity of the offense and a
prediction factor based primarily on criminal history or record.40 The table establishes a recommended
sentence, which becomes the “tariff” for that particular category of offense. The matrix established by the
Minnesota commission is set out in Figure 9.1.

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FIGURE 9.1. Minnesota sentencing guidelines and commentary, sentencing guidelines grid (effective Aug. 1, 2016).

As this discussion suggests, there are many variations of determinate sentencing. A comparative analysis of
the first determinate sentencing statutes (Maine, California, Illinois, and Indiana) revealed “vast differences”
in the following:

The constraints on judicial discretion to choose or reject incarceration.

The degree of judicial discretion in setting the sentence.
The specificity of aggravating and mitigating factors.
The use of “good time” to reduce the length of incarceration.
The range of possible penalties for a given offense.
The degree to which determinate sentencing as practiced in the particular jurisdiction resembled
indeterminate sentencing.41

In short, as indicated at the beginning of this section, sentencing schemes are probably best evaluated along a
spectrum of indeterminate to determinate, rather than rigidly categorized as one or the other.

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 (2) The Prosecutor

The prosecutor exerts tremendous influence over the sentence in two ways: through selecting the charge and
through plea bargaining. The initial charge against a suspect is wholly within the prosecutor’s discretion—
discretion enhanced by the fact that the same conduct may constitute several offenses, each falling within a
different offense category and therefore carrying different potential penalties. In New York, for example, a
prosecutor could charge a man who beats and chokes his spouse with any of several offenses, including
attempted murder (a Class A-II felony punishable by a maximum of life imprisonment), assault in the first
degree (a Class C felony punishable by a maximum of 15 years’ imprisonment), assault in the third degree (a
Class A misdemeanor punishable by no more than 1 year’s imprisonment), or menacing (a Class B
misdemeanor punishable by no more than 3 months’ imprisonment). The prosecutor can also break down a
particular offense into multiple counts; for instance, each act of sexual intercourse can be a separate rape, and
each victim of a robbery can lead to a separate theft count. The prosecutor also enjoys similar discretion in
disposing of cases through plea bargaining, a process that historically has resolved approximately 95% of all
criminal cases prior to trial.42 As discussed in § 2.04(a)(1), there are two basic types of plea bargaining, both
of which can occur in the same case. In the first, “charge bargaining,” the defendant pleads guilty or nolo
contendere to one charge, in exchange for which the prosecutor agrees to dismiss or reduce other charges. In
the second, “sentence bargaining,” the defendant pleads guilty to the original charge in exchange for the
prosecutor’s recommendation of a reduced sentence; a “binding” sentence bargain must be accepted by the
judge or the case goes to trial, whereas a “discretionary” sentence bargain exposes the defendant to the risk
that the judge will reject the recommended sentence and impose a higher one. In most cases, court approval of
the bargain is a formality.
Under the rehabilitative/incapacitative model, this indirect ability of the prosecutor to individualize
punishment after consideration of the defendant’s culpability, risk, treatability, and other factors is not
necessarily inappropriate; these are the same factors that would influence a judge’s sentence after a conviction
at trial. Under a retributive approach, in contrast, individualization is theoretically impermissible unless the
prosecutor focuses solely on an assessment of the offender’s blameworthiness. But most determinate
sentencing reforms do not address prosecutorial power, meaning that discretion remains unbounded. In fact,
studies of federal practice indicate that prosecutorial control over sentencing increased after enactment of the
federal sentencing guidelines.43 Although efforts have been made in some jurisdictions to reduce or eliminate
plea bargaining, they have had little impact on sentencing.44 Determinate sentencing statutes will not achieve
their objective of eliminating disparity until the prosecutor’s power to formulate charges and to bargain for
guilty pleas is checked.45

(3) The Court

The trial judge imposes sentence in the vast majority of jurisdictions. In a few jurisdictions, however, the jury
has sentencing authority,46 and jury sentencing is the preferred method of sentencing in capital cases [see §
9.05(b)]. In those states in which the jury sentences, the jury will either return a sentence with the verdict or,
if the statute calls for a bifurcated proceeding, return its verdict first and then consider sentence.

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 A defendant convicted of more than one offense may have the sentences imposed consecutively or
concurrently. If the sentences are consecutive, one sentence begins on completion of the other. If the
sentences are concurrent, they run simultaneously. Although concurrent sentences for different charges may
seem to allow commission of some offenses “at no charge,” the convictions that form the basis for concurrent
sentences can still have an effect on a parole board’s decision regarding early release, and on the severity of
future sentences should the individual reoffend.
Under the rehabilitative/incapacitative model, the court, like the prosecutor, has broad discretion. As long
as the court imposes a sentence that falls within the range set by the legislature, the appellate courts as a rule
will refuse to disturb the punishment.47 In shaping the sentence to the individual offender’s characteristics, the
court has a wide variety of options:

1. The court may incarcerate the individual for any number of years within the range established by the
legislature.
2. The court may suspend all or part of the sentence.
3. In conjunction with a suspended sentence, the court may require that certain conditions be met to avoid
reimposition of sentence; these “probation” conditions can include a multitude of requirements, including
abstaining from drug and alcohol use, participation in treatment programs and “work release,” and
restrictions on travel.
4. In lieu of imprisonment, the court may order the payment of a fine to the court or restitution to the
victim, or the court may order forfeiture of property, such as contraband or property used in criminal
activity. It may also order the offender to engage in work that benefits the community.

In a determinate sentencing scheme, many or all of these options (i.e., sentence suspension, probation, and
restitution) may also exist, but judicial discretion is much reduced. In addition to having a narrower durational
range to work with, the court usually must identify in writing the reasons for any departure from the legislated
norm. Moreover, such a departure is usually appealable, further inhibiting judicial discretion. Finally, because
rehabilitation is no longer the primary goal, and because the statute lists the only aggravating and mitigating
circumstances that can be considered, a court in a determinate sentencing jurisdiction must narrow its focus.
Rather than looking at the “total” offender, it may consider only those offense and offender traits deemed
relevant by the sentencing commission or legislature.
It was the latter aspect of determinate sentencing that occasioned the Supreme Court’s aforementioned
decision in Booker (striking down parts of the federal sentencing guidelines) and its predecessor, Blakely v.
Washington (which involved a state determinate sentencing scheme).48 These cases held that a sentencing
regime that allows the judge to enhance a sentence above the statutory or guidelines’ maximum for the offense
of conviction upon a separate offense-related factual finding (e.g., that the defendant was armed or that the
drugs possessed exceeded a certain weight) violates the Sixth Amendment right to a jury determination of the
basis for punishment. In contrast, the Court concluded in Booker, a sentencing scheme that only makes
aggravating and mitigating sentencing factors “advisory” does not infringe Sixth Amendment rights, because
in such cases the factors are not “elements” of the offense that a jury must find beyond a reasonable doubt;
rather, they are merely considerations that a judge may use to fashion a sentence.49 Thus, the Court held, the
federal sentencing guidelines are unconstitutional to the extent that they bind the sentencing judge, but they

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can and should be considered by appellate courts as guidelines in determining whether judge-imposed
sentences are “reasonable.”50 In fact, most sentences since Booker still appear to be based on the guidelines51
(although the percentage of downward departures not related to aiding the prosecution has increased since
Booker from below 10% to over 18%).52 Booker and Blakely will probably not have a significant impact on
clinical participation in the sentencing process, although they may increase the likelihood that states will move
back toward indeterminate sentencing, since these decisions appear to immunize that approach from Sixth
Amendment challenge.53

(4) The Parole Board

The parole board is an independent administrative body, usually composed of citizens and corrections
officials. As noted earlier, in states with indeterminate sentencing, the parole board controls the length of the
imprisonment once an inmate becomes eligible for parole (typically after serving one-third or one-half of the
imposed sentence). The parole decision is usually based on the seriousness of the inmate’s index offense(s),
criminal history, and behavior and adjustment while incarcerated, with the overall issue being whether the
offender is sufficiently rehabilitated to warrant a supervised return to the community. In 1972, near the height
of the rehabilitative trend, the Supreme Court described parole in the following manner:

During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the
penological system. . . . Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted
criminals. Its purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able, without being confined
for the full term of the sentence imposed. It also serves to alleviate the costs to society of keeping an individual in prison. The essence of
parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance
of the sentence.54

As the last statement suggests, when parole is granted, it is often accompanied by a set of conditions
similar to those imposed on probationers: Alcohol or drugs may be proscribed; association or correspondence
with certain individuals may be forbidden; restrictions may be placed on travel, employment, or operating a
motor vehicle; and regular meetings with parole officers are usually required. Violation of any of these
conditions may result in revocation of parole and the reinstitution of sentence. Like the court’s sentencing
decision, the board’s decision on the merits and conditions of parole is generally unreviewable.
The role of the parole board changes significantly in a jurisdiction that employs a determinate sentencing
scheme. In the majority of determinate sentencing states, parole has been abolished.55 In most other
determinate sentencing states, the parole board’s authority to fix the length of a sentence is drastically
diminished by specific guidelines.56 As in indeterminate sentencing states, however, the board continues to
monitor inmates after release.57

(b) Procedures

Under the Sixth Amendment, the defendant has a right to counsel at the sentencing hearing.58 But most
other rights associated with trial (e.g., adherence to the rules of evidence and a right to cross-examine adverse
witnesses) are not constitutionally mandated at sentencing. Indeed, after reviewing the Supreme Court’s

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decisions addressing the procedures constitutionally required for sentencing, Dix concluded in 1981 that the
cases “provide no consistent pattern except perhaps to demonstrate sympathy for the state’s interest in
preserving flexible and minimally restricted sentencing procedures.”59 Intimations in Booker to the contrary
notwithstanding,60 the Court has not repudiated this lax approach to sentencing procedure. In capital
proceedings, judges must disclose those portions of the presentence report on which they rely, and offenders
are entitled to present mitigating evidence.61 But in noncapital proceedings, the Constitution does not entitle
the defense to cross-examine witnesses or even to allow the defendant to speak (although most states protect
the right of allocution, and many allow the defense to produce evidence).62 The only explicit limitation
imposed by the Court is that “misinformation of constitutional magnitude” may not be considered by the
sentencing court,63 and this exception in practice does little to limit the general rule permitting wide-open
inquiry.64
As a result, the degree of formality at sentencing is principally a matter for the individual states. With the
exception of some special and determinate sentencing schemes, the rights accorded convicted offenders during
the sentencing process do not approach those enjoyed by the defendant at the guilt adjudication stage. Thus,
for instance, there is no right to counsel during interviews by probation officers preparing presentence reports;
judges have discretion to prevent counsel from seeing “sensitive” portions of these reports; and defendants may
not be entitled to present evidence at the sentencing hearing.65 Similarly, parole boards, whether deciding
issues of release or revocation, are subject to relatively few procedural constraints and almost always provide
less process than at sentencing.66 Most important for mental health professionals, Daubert and Frye usually do
not apply at sentencing, so expert testimony is not as closely regulated at that stage as it might be at trial [for
further discussion of this point, see § 9.03(c)].67

(1) The Degree of Formality

The sentencing process is particularly informal under the rehabilitative model, for three reasons. First, the
success of individualized sentencing assumes the ability of the judge to “know” the defendant. When this
model is operational, the Supreme Court has found “highly relevant . . . if not essential . . . to [the judge’s]
selection of an appropriate sentence . . . the possession of the fullest information possible concerning the
defendant’s life and characteristics.”68 Because obtaining information about the defendant is so important,
courts have resisted arguments that the legal protections that might diminish access to it (e.g., the Fifth
Amendment’s privilege against self-incrimination or the hearsay rules) should apply to sentencing. As the
Supreme Court has stated, “Modern concepts of individualizing punishment have made it all the more
necessary that the sentencing judge not be denied an opportunity to obtain pertinent information by a
requirement of rigid adherence to restrictive rules of evidence properly applicable to trial.”69
Informality is also rationalized on the assumption that society has “earned” the right to punish a convicted
individual. The due process protections associated with trial are in place to reduce error in determining guilt
to an acceptable level. Once guilt is determined, defendants, because of their convicted status, are thought to
have forfeited the right to strict due process protection.
Finally, informality under a rehabilitative model is justified on the ground that the state is acting in the
individual’s interest in constructing a plan for rehabilitation. Adherence to strict principles of due process,

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which are applied when the interests of the state and the individual are in conflict, is deemed unnecessary.
Procedures under determinate sentencing schemes are often no more formal than under indeterminate
approaches, perhaps because there is still a need for information about the defendant and because the belief
persists that a convicted person is not as deserving of procedural protection. But some have argued that
determinate sentencing inherently requires a more formal process. First, recall that under a determinate
scheme, a judicial finding that an aggravating or mitigating circumstance exists leads to an enhanced or
reduced penalty. The traditional response of the legal system when a decisionmaker must determine the
existence of a particular fact, especially when there are consequences for individual liberty, is to formalize the
process by adopting an adversarial proceeding in which each party presents evidence and has the right of
cross-examination. Moreover, the more adversarial sentencing hearings become, the more likely they are to be
treated like a trial for constitutional purposes.70 Indeed, Blakely’s and Booker’s requirement that juries find the
facts required to enhance sentences is a direct outgrowth of this reasoning.
Second, as noted above, determinate sentencing schemes usually provide for an appeal of the sentence. To
make such review possible, the appellate court needs to examine the reasons for the court’s action. Thus at
least one federal court of appeals has directed district courts to “elicit fully articulated objections” by the
defendant to the court’s factual and legal conclusions.71
Third, and most important, an informal process may be conceptually antithetical to sentencing once the
rehabilitative ideal has been abandoned in favor of a more punitive sentencing philosophy. As one
commentator has argued, “The relaxed practices associated with rehabilitative sentencing cannot be reconciled
with a [determinate] sentencing model that does not emphasize values of individualization and treatment.”72
As sentencing moves from an “inquisitorial” to an “accusatorial” model, it must become more formal to
protect individual interests adequately. Such a transformation would not be without precedent. In both civil
commitment and juvenile court proceedings, more safeguards were applied to the decisionmaking process as
the courts rejected the notion that the state’s interest was benevolent and defined the primary area of concern
as the individual’s liberty interests [see §§ 10.02(c), 14.02(d)].
As noted above, this transformation has yet to take place in a significant way. But some differences
between determinate and indeterminate regimes do exist. In determinate regimes, judges are usually required
to state on the record their reasons for particular sentences, at least when departing from the presumptive
range.73 Moreover, appeals of sentences, by both defense and prosecution, are much more common. In federal
court, perhaps 5% of defendants appeal their sentence, and appellate courts are empowered to evaluate the
“reasonableness” of such sentences.74

(2) The Presentence Investigation or Report

If a court rather than a jury imposes sentence, it typically first orders preparation of a presentence investigation
(PSI) or report. In federal courts, as is true in many states, the court must order preparation of a report unless
the defendant (with the court’s permission) waives the report, or the court finds that the record before it
contains information sufficient to enable it to exercise its sentencing discretion properly.75
If one is ordered, the PSI is usually prepared by a probation officer. Under the rehabilitative model, the
report typically follows a structured format composed of five core categories:76 (1) offense information, which

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includes both the official version and the defendant’s version of the facts, information about any codefendants,
and statements of witnesses and victims; (2) criminal record, including juvenile adjudications; (3) personal and
family data, including information about the defendant’s educational, employment, medical, mental health,
and substance use histories; (4) an evaluation section, which provides alternative sentencing plans and data;
and (5) a recommendation for sentencing. In determinate sentencing jurisdictions, on the other hand, the
report is much more likely to be focused on the index offense and prior offenses, and to specified aggravating
and mitigating circumstances. Nonetheless, even in the relatively strict federal system, the presentence report,
after providing voluminous detail on the offense and related conduct, also contains information about
“offender characteristics,” including “mental and emotional health,” “substance use,” and “education,
vocational and special skills,” with an eye toward helping the court decide the nature of disposition within the
sentencing range.77 One observer has noted that the advent of determinate sentencing has increased the
influence of federal probation officers over sentencing, because of the reliance by the prosecutor and the court
on the PSI in deciding the offense category that should control sentencing.78 However, now that Blakely and
Booker require that sentence enhancements be treated merely as guidelines unless the facts underlying them
are found by a jury, the probation officer’s determination cannot be dispositive of the ultimate sentence.79
Once the PSI is submitted, the judge typically holds a conference with the probation officer,80 followed by
the hearing itself. Because hearsay evidence is admissible and often included in presentence reports, it is
critical that the defendant be provided a copy to review and challenge. However, as noted above, in both
indeterminate and determinate jurisdictions, the extent to which disclosure is mandated in noncapital cases is
still debated, and it is less than complete in even the most disclosure-oriented jurisdictions [see § 9.06(c)].

(c) The Role of Mental Health Professionals

Under the rehabilitative/incapacitative model of sentencing, the general role of mental health professionals is
obvious. Making treatment recommendations, providing information relevant to culpability, and offering
assessments about recidivism risk (both violent and nonviolent) all are functions that might be fulfilled by
experts in the behavioral sciences. Although some have concluded that providing this type of information
inappropriately leads clinicians into “the business of attempting to control people,”81 mental health
professionals have long played a prominent role at sentencing when this model holds sway.
Some observers predicted that the move toward determinate sentencing would greatly decrease mental
health professionals’ participation in the sentencing phase.82 Because amenability to treatment and recidivism
risk are deemphasized in determinate sentencing schemes, there is no doubt that the clinical-forensic role is
different. But even sentencing limited to implementing retributive principles requires input related to
culpability. As the shift to determinate sentencing accelerated, Monahan and Ruggiero noted:

[T]o the extent predictions by physicians and psychologists of future criminal behavior are eliminated from the sentencing process, these
disciplines will assume a correspondingly larger role as experts on “culpability” during the trial itself, at sentencing, or in post trial
“diversionary” commitments imposed in lieu of imprisonment.83

Indeed, most determinate sentencing statutes invite clinical participation, primarily through reference to
mitigating circumstances, proof of which may result in a reduced sentence. For example, the Minnesota

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guidelines include the following as mitigating circumstances:

(1) [T]he offender played a minor or passive role in the crime or participated under circumstances of coercion or duress.
(2) The offender, because of physical or mental mpairment, lacked substantial capacity for judgment when the offense was committed.
(3) Other substantial grounds exist which tend to excuse or mitigate the offender’s culpability, although not amounting to a defense.84
(Emphasis added)

In other determinate sentencing schemes, mitigating factors are unspecified, but judges continue to rely on
“mental health reasons” for setting sentences below the presumptive level. Thus, even in jurisdictions in which
the court is bound to reduce the presumptive sentence by the same amount for everyone proving a mitigating
circumstance, the potential for significant clinical input continues to exist. The extent to which that potential
is realized is discussed in § 9.06(d).
Before mental health professionals can have any impact at sentencing, however, their testimony and reports
must be heard. Particularly controversial in this regard has been clinical and actuarial testimony about risk.
Although the Supreme Court held, in Barefoot v. Estelle,85 that the Constitution does not bar such testimony
even in capital sentencing proceedings [see § 9.05(a)], numerous litigants have argued that the rules of
evidence should bar or severely limit prediction evidence at sentencing.
These arguments virtually always lose, with most courts holding, as indicated above, that cases like Daubert
and Frye do not apply at sentencing.86 Some courts have balked, however, at certain features of actuarial risk
assessment. As one court put it, “[r]elying upon a sum of numbers purportedly derived from objective data
cannot serve as a substitute for an independent and thoughtful evaluation of the evidence presented for
consideration.”87 But this argument seldom holds sway. Indeed, the lower court decision in which this
statement appeared was later rejected by the state supreme court, which stated that “[h]aving been determined
to be statistically valid, reliable, and effective in forecasting recidivism, the assessment tool scores may, and if
possible should, be considered to supplement and enhance a judge’s evaluation, weighing, and application of
the other sentencing evidence in the formulation of an individualized sentencing program appropriate for each
defendant.”88
At the same time, a few courts have been sensitive to concerns about whether specific actuarial instruments
can address legally relevant questions. For instance, in State v. Loomis, the Wisconsin Supreme Court
admonished judges to be aware that such instruments may not have been normed on local populations and in
any event “must be constantly monitored and re-normed for accuracy due to change [in] populations and
subpopulations.”89 The court also cautioned that risk assessments instruments may “disproportionately classify
minority offenders as having a higher risk of recidivism,” given their heavy reliance on prevalence of
potentially racially skewed arrest and conviction information.90

9.04. SPECIAL SENTENCING PROVISIONS

Most jurisdictions have experimented with special sentencing statutes for discrete populations thought to be
significantly different from the mass of offenders. The populations most frequently singled out for special
sentencing are repeat offenders, those who have committed or are considered to be at increased risk for
committing sexual offenses, youthful offenders, and certain types of drug-dependent offenders. As the
discussion that follows suggests, in many states these statutes have been eliminated or substantially modified

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as the rehabilitative model has fallen into disfavor.

(a) Repeat Offender Statutes

By the early 1990s, nearly all jurisdictions had passed legislation that allowed for or mandated increased
sentencing for those convicted of multiple felonies.91 These statutes—traditionally called “repeat offender” or
“habitual offender” statutes, and more recently labeled “three-strikes-and-you’re-out” laws—typically prescribe
enhanced sentencing upon conviction of a third or fourth felony. For example, Indiana law defines a habitual
offender as a person convicted of two prior unrelated felonies who, upon conviction of a third felony, can
receive a 30-year term in addition to the standard penalty.92 A habitual offender law approved by California
voters in 1994 doubles the sentence of felons with one prior conviction for a serious felony, and imposes a 25-
years-to-life sentence on felons with two prior violent felony convictions (even if the third conviction is for a
nonviolent offense).93
Although these statutes can be justified on retributive grounds (e.g., people who commit three felonies are
particularly “evil”), they are most often based on an incapacitative rationale. Fueled by public concern over
crime, they assume that “the effect of imprisonment on street crime is a direct function of the rate at which
incarcerated offenders would have committed crimes if they were not confined.”94 They have also been
criticized, however, both for being impractical and for falling most heavily on petty criminals and older
offenders who may be approaching the end of their criminal careers.95 For example, a study of the first 11
months following initiation of the California three-strikes law indicated that the plea-bargaining rate dropped
from 94 to 6% for offenders charged with their “third strike.” Apparently, and not surprisingly, most
defendants opted to go to trial rather than suffer the mandatory sentence that would ensue after a third felony
conviction.96 Also of interest was the reported finding that the vast majority of those eligible for third-strike
sentencing under the California law were charged with nonviolent offenses.97
Despite the harshness of the penalties available under these statutes, they have survived constitutional
scrutiny. Indeed, in Rummel v. Estelle,98 the Supreme Court upheld a Texas habitual offender statute
providing mandatory life imprisonment upon conviction of any three felonies, including nonserious ones.
Rummel was sentenced to life imprisonment under this statute after being convicted of fraudulently using a
credit card to obtain $80 worth of goods, and after the prosecutor had proven that he had previously been
convicted of forging a check for $28.36 and obtaining $120.75 by false pretenses. Rummel’s argument that the
sentence violated the Eighth Amendment prohibition against cruel and unusual punishment was rejected by
the Court, which concluded that the penalty was neither disproportionate nor “cruel.” The Court later held, in
Solem v. Helm,99 that imposition of a life sentence on an offender with multiple prior convictions may be
unconstitutional when, unlike in Rummel, there is no possibility of parole. But Solem vigorously reaffirmed
the general principle that habitual offender statutes are constitutional and that individual sentences will be
overturned only in extreme circumstances. And in a more recent case, Ewing v. California, the Court upheld a
25-year sentence for a fourth offense involving theft of $1,200 worth of golf equipment.100 The Court has
thus placed its imprimatur on virtually unlimited legislative discretion in sentencing schemes for repeat
offenders.
Because habitual offender statutes are not rehabilitative in intent and operate primarily on the basis of

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accumulated convictions—an objective criterion—clinical involvement will be minimal in such cases. The only
clinical input is likely to be indirect, as defense attorneys try to find ameliorative evidence to avoid conviction
for a third felony. Knowledge of these statutes is nonetheless useful as background for the discussion that
follows.

(b) Sex Offender Statutes

Special sentencing provisions for sex offenders date back to 1937, when Michigan passed the first “sexual
psychopath” law.101 Within 40 years, 28 states had enacted what came to be known as “mentally disordered
sex offender” (MDSO) statutes, designed to divert individuals charged with multiple sexual offenses from the
criminal justice system to treatment programs of indeterminate length.102 Statutes that functioned in similar
ways for youthful offenders—so-called “defective delinquent” statutes—were also passed in a number of
states.103 Not surprisingly, the rejection of the rehabilitative model in regular sentencing spilled over into this
area as well. By 1990, the number of states with MDSO and defective delinquent laws had dwindled to about
a dozen.104 More recently, however, there has been a resurgence of interest in such statutes, especially in the
wake of the Supreme Court’s decision in Kansas v. Hendricks105 upholding their constitutionality. Thus they
are worth examining in detail.
The indeterminate sentences authorized by MDSO laws had two primary goals: the protection of society
from sex offenders considered to be dangerous, and the rehabilitation of those offenders. These twin
objectives, involving prediction and treatment, invited clinical participation as forthrightly as any area of
criminal law. In fact, the first-generation MDSO statutes “were meant to be harbingers of a future in which
all criminals would be ‘treated’ under similar provisions.”106
The statutes come in a “criminal” and a “civil” form. The criminal version provides for special commitment
procedures after conviction, whereas the civil version is triggered after a charge for a sex offense has been filed
but before conviction.107 Despite this difference and the different legal labels, the two types of statutes share
several attributes:

Commission of a sex offense is required.

The conduct generally must involve force, aggression, or minors.
The conduct must be repetitive. Unlike repeat offender statutes, however, MDSO statutes do not always
require a history of sex offending, and the idea of repetition may be satisfied by a prediction of future
conduct.
The offender must have a mental disorder, though the definition of disorder is broader than that used in
other areas of the law, so that many disorders that could not or typically would not form the basis for
traditional civil commitment (e.g., personality disorders, paraphilic disorders, substance use disorders) can
serve as the predicate impairment in this context.
The individual, once labeled, is to be treated, though a finding that the offender is treatable is typically not
required.
As indicated above, commitment is indeterminate, based on the individual’s continued “need for
treatment” and anticipated risk for continued offending.108

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 Procedures under the two types of statutes are similar as well, and are generally more formal than the usual
sentencing proceeding. The additional procedural rigor is the result of Specht v. Patterson,109 a United States
Supreme Court decision holding that because designating a person a “sexual offender” can lead to significant
enhancement of the normal sentence for the crime, the defendant is entitled to an adversary proceeding,
including notice, a right to a hearing, cross-examination and presentation of evidence, and a right to counsel.
Although Specht dealt with a criminal MDSO statute, it probably applies to civil versions as well.110 At the
same time, the Supreme Court has indicated that the Fifth Amendment’s privilege against self-incrimination
does not apply in MDSO proceedings.111
Beginning in the 1970s, MDSO statutes came under heavy attack. As early as 1977, the Group for the
Advancement of Psychiatry (GAP), originally a proponent of the laws, came to believe that “sex psychopath
and sexual offender statutes can best be described as approaches that have failed”112 and called for repeal of all
“sex psychopath” statutes. In the mid-1980s, the American Bar Association (ABA) recommended repeal as
well.113
This antipathy toward MDSO statutes was based on perceived flaws in the assumptions underlying sex
offender legislation, which the ABA identified as follows:

(1) there is a specific mental disability called sexual psychopathy, psychopathy, or defective delinquency; (2) persons suffering from such a
disability are more likely to commit serious crimes, especially dangerous sex offenses, than normal criminals; (3) such persons are easily
identified by mental health professionals; (4) the dangerousness of these offenders can be predicted by mental health professionals; (5)
treatment is available for the condition; (6) large numbers of persons afflicted with the designated disabilities can be cured.114

The GAP and the ABA contested each assumption. For example, according to the GAP, the
categorization process created by sexual psychopath statutes lacks clinical validity. The assumption that a
“hybrid amalgam of law and psychiatry can validly label a person a ‘sexual psychopath’ or ‘sex offender’ and
then treat him is rejected as analogous to creating special categories of ‘burglary offender’ statutes or ‘white
collar’ offender statutes.”115 Both the ABA and the GAP also noted problems with accurately assessing
recidivism risk, and both asserted that although the statutes promised therapy, the primary goal appeared to
be reassuring the community of its own safety rather than providing treatment.116
Building on the latter point, the GAP also asserted that these statutes compromise mental health
professionals in two ways. First, clinicians may be asked to make “generalizations about sex offenders not
grounded in empirical data from the individual case which often do more harm to the individual and society
than no statements at all.”117 Second, the absence of meaningful treatment programs for the condition
diagnosed, GAP asserted, raises an ethical as well as practical dilemma for clinicians: “[P]erhaps the worst
thing a psychiatrist can do is tailor his opinion to whatever compromised versions of treatment are currently
being offered, thus putting himself in the role of sanctioning treatments in which he does not believe.”118
Although these arguments appeared to persuade many state legislatures to repeal their MDSO laws in the
1970s and 1980s, they did not deter a new wave of sex offender statutes in the 1990s. Indeed, the attack on
treatment efficacy may have even lent support to the more recent versions of these statutes, which go well
beyond earlier legislation in two ways. First, every state requires sex offenders to register with local authorities
following their release from prison, with some states limiting registration requirements to those who qualify as
“sexual predators” and others applying them to a broader group of offenders.119 Along the same lines,

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Congress has enacted a statute requiring all states to disseminate information about these offenders, to the
extent necessary to protect public safety (but has left to the states how much information to disclose and the
manner of doing so).120 These types of statutes, which the Supreme Court has upheld against constitutional
challenge,121 reflect not only public concern regarding safety but also doubt that treatment results in reduced
recidivism.
More significantly, at least 20 states and the District of Columbia have enacted statutes that provide for
confinement of sexual offenders not as an alternative to incarceration (as traditional sexual offender statutes
provide), but subsequent to completion of a criminal sentence.122 These statutes, now adopted in a number of
states, have come to be known as “sexually violent predator” (SVP) statutes. Under Washington’s law, for
example, offenders adjudicated as SVPs can be involuntarily committed for an indeterminate term upon
completion of their criminal sentences.123 Under the statute, an SVP is defined as someone “who has been
convicted of or charged with a crime of sexual violence and who suffers from mental abnormality or
personality disorder which makes the person likely to engage in predatory acts of sexual violence.”124 The
law’s legislative history asserts that these persons can be subjected to special incarceration terms because they
“generally have antisocial personality features which are unamenable to existing mental illness treatment
modalities. [Therefore,] the prognosis for curing [them] is poor, [and] the treatment needs of this population
are very long term.”125
These newer statutes can be criticized on the same practical grounds as the original MDSO statutes: A so-
called “SVP” may be no more dangerous than other types of offenders, and, in any event, determining who is
“likely” to engage in additional predatory acts can be very difficult. Because SVP laws do not apply until after
completion of the criminal sentence, they also squarely raise a conceptual problem that was rarely considered
in connection with the older statutes (although they share the problem): whether incarceration based solely on
dangerousness/incapacitation grounds is permissible.
This last issue requires further comment. Based on the assumption that people have, or at least should be
treated as if they have, free will (the capacity to choose and control their conduct), the criminal law
traditionally has required an act—either a completed crime or a substantial step toward completing one—
before confinement may occur; incarceration based solely on a prediction of future crime in the absence of a
choice to commit it has been considered illegitimate.126 There are generally thought to be only three
exceptions to this general rule: (1) when a person is lacking in free will (i.e., is mentally ill) and thus can be
confined without violating the free-will paradigm (as is the case with civil commitment);127 (2) when
confinement based on dangerousness is not long-term (as with pretrial detention);128 and (3) when
confinement based on dangerousness is limited by retributive principles (as is true even in most indeterminate
sentencing schemes, where a sentence range is set according to “just deserts,” within which the court and
parole board may impose a sentence based in whole or in part on dangerousness concerns).129
This tradition appeared to be reaffirmed in the Supreme Court’s 1992 decision in Foucha v. Louisiana,130
in which the Court ordered the release of a person acquitted by reason of insanity who was later diagnosed as
having antisocial personality disorder and, at least according to the state’s experts, was no longer “mentally
ill.”131 The four-member plurality of the Court reasoned that the state had to release Foucha, since he had not
been convicted and could not be committed (due to the absence of mental illness). As the plurality put it,
allowing indeterminate confinement of Foucha “would . . . be only a step away from substituting

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confinements for dangerousness for our present system which, with only narrow exceptions and aside from
permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt
to have violated a criminal law.” However, Justice O’Connor, who provided the fifth and deciding vote in
Foucha, stressed that if “the nature and duration of detention were tailored to reflect pressing public safety
concerns related to the [insanity] acquittee’s continuing dangerousness,” and there is some “medical
justification for doing so,” prolonged confinement based solely on dangerousness might be constitutional.132
In other words, Justice O’Connor appeared to recognize a fourth, “pressing public concern” exception to the
general rule that dangerousness alone cannot form the basis for confinement. Such an exception could swallow
the general rule.
Nonetheless, in Kansas v. Hendricks,133 which was decided seven years after Foucha, the Supreme Court
appeared to endorse that exception by upholding an SVP law based on Washington’s statute. The Court’s
most important holding in Hendricks was its conclusion that long-term preventive detention of persons who
have not been convicted or who have already served a criminal sentence does not violate due process, as long
as the “mental abnormality” predicate of the statute requires an impairment that makes these people subject to
commitment “dangerous beyond their control.”134 In other words, depending on how one defines the
“dangerous beyond control” language, the Court either adopted the fourth, public-safety-based exception
described in O’Connor’s Foucha concurrence, or expanded the first exception beyond people with serious
mental illness to include people like Hendricks, who at most was suffering from a nonpsychotic impulse-
control disorder. In a subsequent case, Kansas v. Crane,135 the Court attempted to define further the
“dangerous beyond control” predicate, but ended its discussion with the relatively unhelpful conclusion that
“[i]t is enough to say that there must be proof of serious difficulty in controlling behavior.”136 The Crane
Court also refused to indicate whether “emotional” or cognitive impairment, as distinguished from volitional
impairment, might be a sufficient basis for preventive detention, but the Court is likely to so hold when
confronted with the issue, as long as the impairment causes perceptual or reality-testing difficulties that make
antisocial behavior more likely.137 Bolstering the expansive reach of the Court’s decisions is the fact that,
nationally, only 12% of those committed as SVPs are diagnosed with a “serious mental illness”; most are
diagnosed with paraphilias, personality disorders, and substance use disorders.138
Hendricks also argued that because it was imposed after his criminal sentence was completed, his
commitment as an SVP constituted double punishment for his child molestation offense, in violation of the
Constitution’s double jeopardy clause. The Court dismissed this claim as well, holding that commitment as an
SVP is not punishment, since its intent is to further incapacitative and rehabilitative goals rather than
retributive or general deterrence aims.139 Although Hendricks was housed in a high-security facility and
received little or no treatment, the Court concluded that “where the State has ‘disavowed any punitive intent’;
limited confinement to a small segment of particularly dangerous individuals; provided strict procedural
safeguards; directed that confined person be segregated from the general prison population and afforded the
same status as others who have been civilly committed; recommended treatment if such is possible; and
permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired,
we cannot say that it acted with punitive intent.”140
Subsequent challenges to SVP laws have fastened on the language in the quotation above suggesting that
preventive detention may be unconstitutional if treatment is possible and is not provided. In Seling v.

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Young,141 however, the Court rejected the argument that failure to provide treatment to an individual
committed as an SVP renders the confinement imposed by such statutes punishment in violation of the
double jeopardy clause. At the same time, it intimated that committed individuals might be able to bring a
due process challenge to confinement conditions, when it noted that “due process requires that the conditions
and duration of confinement . . . bear some reasonable relation to the purpose for which persons are
committed.”142 Of course, if the state disavows any treatment objectives, it may be able to escape this
constitutional claim as well. Even when such objectives are explicitly stated in the statute, only a few courts
have been willing to take them seriously enough to require legal relief, and the relief has often been
superficial.143 Noteworthy in this regard, however, is the decision by a federal district court that, given the
failure of Minnesota to release outright any of the 700 sex offenders committed under its program since the
1990s, the state’s SVP statute was unconstitutional; the court ruled that the state must conduct individualized
risk assessments of all sex offenders to determine whether they were treatable and, if so, whether treatment
could take place in a community setting.144
At least 12 of the 20 states that have SVP laws passed them after Hendricks was decided.145 In theory,
however, the rationale underlying Hendricks is not limited to sex offenders. Any class of people who are
perceived to be dangerous because of volitional impairment (drunk drivers, domestic abusers, persistent
burglars?) could conceivably be subject to preventive detention under the reasoning of Hendricks, depending
again on how “dangerous beyond control” is ultimately defined. Some lower courts have treated this language
simply as a makeweight, by holding that proof that a person is likely to offend again is also proof of
inadequate control.146 Moreover, some of these courts merely require proof that recidivism is likely or
probable; proof beyond a reasonable doubt or even by clear and convincing evidence that the individual will
commit crime is not required.147
Other courts have taken the impairment and prediction requirements more seriously. For instance, in
upholding Minnesota’s MDSO law in In re Blodgett,148 the Minnesota Supreme Court limited the scope of
the statute to those who exhibit (1) a habitual course of misconduct in sexual matters, and (2) “an utter lack of
power to control sexual impulses,”149 in addition to (3) strong proof that the person will attack or otherwise
injure others. Criterion 2, if applied conscientiously, would restrict sex offender confinement to those cases in
which the offender is lacking in “free will” and thus is a legitimate candidate for commitment under the first
exception outlined earlier. The first criterion is also noteworthy, because proof of recidivism should bolster the
prediction of dangerousness and gives the extended confinement more of a retributive cast.
That the Minnesota court is serious about these limitations was demonstrated in its subsequent decision in
In re Linehan.150 There the court found that because expert testimony on the issue of whether Linehan could
control his behavior was inconsistent,151 the state had failed to demonstrate by clear and convincing evidence
that Linehan had “an utter lack of power” to control his sexual impulses. The court also gave careful attention
to the practical issue of prediction. Although the court did not address Linehan’s argument that the state had
failed to prove he would offend again (because its finding on controllability mooted the issue), it did direct
trial courts to consider the following factors when determining dangerousness: (1) relevant demographic
characteristics (e.g., age and education); (2) the individual’s history of violent behavior, focusing on recency,
severity, and frequency of violent acts; (3) base rate statistics for violent behavior among individuals of the
defendant’s particular background; (4) environmental stressors (defined by the court as cognitive and affective

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factors indicating that the person may be predisposed to respond to stress in a violent or nonviolent manner);
(5) the similarity of the present or future context to those contexts in which the person had engaged in past
violence; and (6) the person’s record in sex therapy programs.152 In effect, the Court established a legal
framework, borrowed principally from the work of John Monahan [see § 10.08(d)], for making the prediction
of dangerousness required by the Minnesota statute. Although these factors have been criticized as
outdated,153 they are at least a move in the right direction. More sophisticated means of assessing risk are
discussed in § 9.09.

(c) Youthful Offenders

Special sentencing procedures for “youthful offenders” tried in adult court were pioneered by the federal
government with the enactment of the federal Youth Corrections Act (YCA) of 1950.154 Although the
statute was repealed in 1984,155 it is briefly described here as an example of the rehabilitative model at its
peak.
Congress enacted the YCA because of perceptions that youthful offenders committed a disproportionate
amount of crime, and that the penitentiary system had failed in rehabilitating these offenders.156 Its goal was
to “cure” offenders whose youth made them more amenable to treatment than older criminals.157 The YCA
defined a “youth offender” as a “person under the age of 22 years at the time of conviction.”158 An individual
between the ages of 22 and up to but not including 26 at the time of conviction could also be sentenced under
the YCA if the court found “reasonable grounds” to believe that the defendant would benefit from treatment.
The court was to make this decision after considering the previous record of the defendant as to delinquency
or criminal experience; the defendant’s social background, capabilities, and mental and physical health; and
other pertinent factors.159
An offender sentenced under this law was given an “indeterminate” term generally not to exceed six years,
with actual confinement not to exceed four years.160 The parole commission set the length of sentence within
these bounds, as it did with adult offenders.161 If the youthful offender was unconditionally discharged prior
to the expiration of the maximum sentence imposed, the conviction was automatically “set aside,” and the
individual was given a certificate to that effect.162
The YCA was a pristine example of the rehabilitative model of sentencing, and its repeal is another
illustration of the general shift in sentencing ideology and philosophy that transformed the adult and juvenile
justice systems from the mid-1980s through the 1990s. Although there has been a resurgence of youthful
offender statutes in recent years, their motivation differs from the premise of the YCA. Consistent with the
ideological shift to the determinate sentencing model, these newer laws are meant to provide a means of
holding juvenile offenders past the age of juvenile jurisdiction, not to provide a flexible treatment disposition
[see § 14.02(e)].

(d) Drug-Dependent Offenders

In the mid-20th century, Congress enacted special sentencing provisions for drug-dependent offenders. These
provisions called for confinement of an addicted offender for an indeterminate period of treatment for the

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addiction.163 Other provisions permitted the prosecutor to commit the individual in lieu of criminal
punishment.164 Like the YCA, however, virtually all of these laws have been repealed.165 Today the federal
sentencing guidelines explicitly prohibit consideration of addiction as a mitigating factor.166
However, a number of state courts have experimented with innovative “drug courts,” which divert criminal
offenders to treatment programs that are closely monitored by the courts and require strict adherence to
treatment goals and behavioral objectives. One commentator has described these experiments as follows:

These court-initiated efforts attempt to break the cycle in which defendants are arrested, spend a short time in jail and are released only to be
arrested once again by ensuring that defendants receive treatment for their substance abuse problems. These programs emphasize a “team
approach” in which the judge, prosecutor, public defender and treatment provider work together to develop, implement, and monitor a
treatment plan for each defendant.167

In this area at least, the rehabilitative ideal has enjoyed some success, perhaps because the retributive model is
so clearly ineffective. Therapeutic courts, including drug courts and mental health courts, are discussed in
more detail in § 2.04(e).

9.05. CAPITAL SENTENCING

CASE STUDY 9.1

On the morning of the murder, Mr. Miller was released from county jail, where he had been incarcerated for possession of a concealed
weapon (a fishing knife). He wandered around town and bought a fishing knife similar to the one that had been taken from him by the
police. An employee in the store where the weapon was purchased stated that Mr. Miller was “wild-looking” and was mumbling angrily to
himself. This employee called the police and followed Mr. Miller to two nearby bars. After seeing Mr. Miller leave in a cab with a female
driver, the employee contacted the taxi company to inform it of the apparent danger. The taxi driver was found murdered a short while later,
having been stabbed nine times. Mr. Miller had apparently raped her when she was dead or dying. When Mr. Miller was arrested at the
substation that evening, his pants were still covered with blood, and bloodstained money (some of which had been taken from the taxi
driver) was found in his pockets.
After Mr. Miller was charged with this crime, he was found incompetent to stand trial and was committed to a state mental hospital.
Two and a half years later, after being heavily medicated, he was adjudicated competent to stand trial and was convicted of capital murder.
At the sentencing hearing, psychiatric testimony suggested that Mr. Miller was suffering from paranoid schizophrenia and hallucinations.
He had been committed to mental hospitals on several previous occasions and had a long history of drug abuse. Testimony also indicated
that Mr. Miller had a severe hatred of his mother and had planned to kill her after his release from jail. Apparently Mr. Miller’s hatred arose
in part from the fact that his mother, who had been married four times, had refused any contact with him for several years. On several
previous occasions, Mr. Miller had experienced hallucinations in which he saw his mother in the body of other persons in a “yellow haze,”
and at least once before, he had senselessly assaulted another woman while experiencing such hallucinations. Mr. Miller testified that at the
time of the capital murder, he saw his mother’s face on the 56-year-old female taxi driver in a “yellow haze,” and proceeded to stab her to
death.

Questions: Assume that the death penalty statute under which Mr. Miller is sentenced includes as mitigating circumstances that the
offender was, at the time of the offense, (1) under extreme mental or emotional distress and (2) substantially unable to appreciate the
wrongfulness of his act or conform his act to the requirements of the law. Assume also that the statute includes as aggravating
circumstances that (1) the crime was committed in a wanton, atrocious, and cruel manner; and (2) the offender has a probability of
committing criminal acts in the future. As a mental health professional, which if any of these issues would you address, and what could you
say about them? As a lawyer for Mr. Miller, what arguments might you make to exclude clinical testimony about his dangerousness?

Clinical opinion will be sought in most capital contexts. Because the stakes are so high in such cases, defense
attorneys seek any information that may assist them in preventing imposition of the death penalty. In

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addition, the hostility toward the rehabilitative/incapacitative model in regular sentencing has not affected
capital sentencing; because the penalty is death, the courts have allowed the defense to present almost any
information that might put the defendant in a better light, including testimony about treatability and
nondangerousness. This section describes the substantive and procedural requirements imposed by the United
States Supreme Court in connection with death penalty proceedings. [See §§ 7.08(c) and 9.09(c)(7) for
discussions of ethical problems that clinicians may confront when participating in such a process.]

(a) Substantive Criteria

The modern death penalty process has been shaped by a long series of United States Supreme Court
decisions, beginning in 1972 with Furman v. Georgia.168 Prior to Furman, most states permitted a death
sentence for certain crimes, including murder and aggravated rape. But in Furman, the Court signaled that it
would strictly scrutinize use of this ultimate sanction when it declared the capital punishment statutes of
Texas and Georgia unconstitutional. Each of the nine Justices wrote separately in Furman, making it fruitless
to describe the “Court’s opinion.” However, Justice Brennan perhaps best articulated a theme running through
the opinions of the five Justices who voted to invalidate the statutes:

[W]hen a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong
that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction; . . .
[otherwise] it smacks of little more than a lottery system.169

Justice Douglas described the populations arbitrarily singled out for those rare occasions when death was
imposed: “It is the poor, the sick, the ignorant, the powerless and the hated that are executed.”170 To both
Justices, the death penalty was a violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment, as well as a violation of the equal protection guarantee.
Since 1972, the Court has attempted to make imposition of the death penalty less arbitrary. It started with
the premise that the death penalty is unique in the criminal justice system. The Court stated in Woodson v.
North Carolina: “The penalty of death is qualitatively different from a sentence of imprisonment, however
long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one
of only a year or two.”171
Accordingly, the Court has distinguished capital sentencing from regular sentencing in a number of ways.
First, it has adopted two outright exemptions from capital punishment: intellectual disability and youth. In
Atkins v. Virginia,172 the Court held that execution of people with intellectual disabilities violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. The Court based this decision both on a
determination that a “national consensus” had been reached that people with intellectual disabilities should
not be executed,173 and on its own conclusion that, because of their cognitive and volitional deficits, people
with intellectual disabilities who kill are never as culpable or deterrable as the “average murderer” and
therefore are not among the “worst of the worst” who should receive capital punishment.174 The Court
reached a similar conclusion with respect to juveniles who commit murder before the age of 18 in Roper v.
Simmons,175 citing a national (and international) consensus against execution of juveniles, as well as concerns
regarding the culpability of minors when compared to adults.

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 The Court left to the states the definition of intellectual disability for purposes of implementing Atkins.
But its opinion referenced both the American Association on Mental Retardation (now the American
Association on Intellectual and Developmental Disabilities) definition and the American Psychiatric
Association definition of that condition.176 Most states have adopted similar formulations (i.e., a significantly
subaverage IQ—an IQ somewhere below 70 to 75—with significant deficits in adaptive functioning).177 In
Hall v. Florida,178 the Court essentially held that these professional definitions should control the definition of
intellectual disability for death penalty purposes. The Florida law challenged in Hall, as interpreted by the
Florida Supreme Court, prohibited an individual with an IQ over 70 from introducing evidence of adaptive
functioning, essentially limiting the Atkins exemption to people with an obtained IQ of 70 or lower. The
majority in Hall correctly observed that scores on intelligence tests have some degree of error, and that states
cannot ignore this fact in deciding whether a defendant with an IQ above 70 can introduce evidence of
adaptive functioning. Similarly, in Moore v. Texas,179 the Court held that the adaptive functioning component
of the intellectual disability diagnosis in death penalty cases must conform with accepted professional
definitions. In Moore, that holding meant that the lower court’s reliance on the facts that Moore had mowed
lawns, functioned fairly well in prison, and was not considered “retarded” by his relatives were irrelevant, given
his adaptive deficits in clinically relevant areas.
One might argue that if people with intellectual disabilities and juveniles are exempt from the death
penalty, offenders who experienced serious mental illness at the time of the offense should be exempt as well.
Certainly a person with psychotic-spectrum symptoms at the time of the crime is less culpable than the
average murderer, even if he or she does not meet criteria for insanity—a fact that the ABA, the American
Psychiatric Association, and the American Psychological Association have all recognized in adopting a
resolution calling for an exemption for people with serious mental illness.180 However, both Atkins and
Simmons were based not only on assessments of relative blameworthiness and deterrability, but also on the
degree of consensus among legislatures and courts as to who should be exempt from the death penalty. Of
those states with the death penalty, none exempt noninsane, mentally ill people from that punishment,
whereas almost 50% of these states had exempted people with intellectual disabilities and juveniles at the time
Atkins and Simmons were decided.181
Mental illness is still very relevant to death penalty analysis, however. In those situations where Atkins and
Simmons do not apply, the Court has emphasized that, whatever might be permissible in noncapital
sentencing proceedings, the substantive criteria for determining the appropriateness of the death penalty must
give the judge or jury the opportunity to consider all relevant mitigating evidence about the individual capital
offender, including evidence of mental disorder. Thus it has banned statutes making execution mandatory for
certain types of offenses,182 as well as statutes that somehow limit the individualization process. For example,
in Lockett v. Ohio, it struck down an Ohio law that “did not permit the sentencing judge to consider as
mitigating factors, [the defendant’s] character, prior record, age, lack of specific intent to cause death, and her
relatively minor part in the crime.”183 The Court reiterated its observation in Woodson that “in capital cases
the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the
character and record of the individual offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting the penalty of death.”
In an effort to meet these guidelines, the typical modern capital sentencing statute sets out a list of

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aggravating and mitigating factors. The prosecution must prove the existence of at least one of the aggravating
factors before the death penalty may be imposed. In most states, this proof must be beyond a reasonable
doubt, although in some states the statute is silent on this point.184 The defendant, on the other hand, is not
required to prove any mitigating circumstances (and in some cases, discussed below, it may make sense to
avoid doing so). None of the statutes directs the factfinder how to balance aggravating and mitigating
circumstances once they are proven. In theory, at least, the jury may treat an offender with only one
aggravating factor and six mitigating factors in the same way as an offender with two aggravating factors who
is unable to produce any evidence in mitigation. As a result, although discretion has been limited somewhat,
considerable potential for inconsistency and arbitrariness still exists.
The specific aggravating and mitigating factors employed by jurisdictions vary. A few general comments
can be made about them, however. First, most mitigators are phrased in terms that invite clinical
participation. For example, roughly two-thirds of states with the death penalty identify the following as
potential mitigators:

The defendant was under the influence of extreme mental or emotional distress.
The capacity of the defendant to appreciate the criminality of his or her conduct, or to conform his or her
conduct to the requirements of law, was significantly impaired.185

Other common statutory mitigators include “extenuating circumstances” at the time of the offense,
“domination of another” during the offense, a belief that the act was “morally justified,” and proof that the
defendant is not dangerous.186
As this list indicates, a second aspect of mitigating circumstances is that they are broadly framed. Note that
the language of the first mitigating circumstance listed above, although similar to that used to define
provocation for manslaughter purposes [see § 8.03(d)], does not require that the emotional distress be
“reasonable.” Similarly, the language of the second listed mitigating circumstance, although similar to the
American Law Institute test for insanity [see § 8.02(b)], does not include a “mental disease or defect”
predicate. These differences emphasize the fact that at the sentencing phase, the degree of mental disability
necessary to establish mitigation need not be as serious as at the trial stage. Indeed, as already noted, Lockett
established as a constitutional matter that any mitigating evidence relevant to the defendant’s character and
offense must be admitted during a capital sentencing proceeding. Thus the mitigating circumstances found in
typical death penalty statutes are not exclusive. Some of the nonstatutory mitigating factors that have been
recognized by courts include whether the defendant is “contrite and remorseful”; has limited intellectual
abilities (as compared to an intellectual disability); suffers from an organic brain syndrome; was under the
influence of alcohol at the time of the offense; was abused as a child or had an otherwise deprived childhood;
and has a history of commitment to mental institutions and is treatable.187
On the other hand, the statutory aggravating circumstances are usually considered exclusive.188 That is, the
prosecution must prove one of the listed aggravating circumstances before the death penalty may even be
considered; furthermore, other types of aggravation are usually irrelevant. Most of the aggravating
circumstances listed in the typical statute (e.g., whether the crime was particularly cruel and atrocious, the
offender’s criminal history) do not call for clinical participation. But in the 6 states that explicitly make
dangerousness an aggravating circumstance and the 20 or so states that treat it as a “nonstatutory” aggravator

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(which cannot, by itself, authorize a death sentence),189 such participation may occur. In Virginia, for
instance, clinicians have testified about violence-proneness under a statute that makes an offender eligible for
the death penalty if “there is a probability . . . that he would commit criminal acts of violence that would
constitute a continuing serious threat to society.”190
This latter type of testimony has been of particular concern for mental health professionals on substantive
and ethical grounds, but it is clear that it will continue to be sought. Despite the difficulty of predicting
violent behavior, the Supreme Court has upheld the constitutional validity of statutes permitting a death
sentence based on a prediction of future dangerousness.191 As noted in § 9.03(c), it has also explicitly found,
in Barefoot v. Estelle,192 that the Constitution does not bar clinical testimony on the subject. To the American
Psychiatric Association’s argument that long-term predictions of dangerousness are so unreliable that they
should be proscribed at capital sentencing, the Court rather glibly responded: “The suggestion that no
psychiatrist’s testimony may be presented with regard to dangerousness is somewhat like asking us to disinvent
the wheel.” Lower courts continue to follow Barefoot, despite increased knowledge about the vagaries of risk
assessment. For instance, in United States v. Coonce, the defendant argued that predictions of violence should
not be allowed as an aggravating factor in a death penalty proceeding, based on numerous post- Barefoot
studies that demonstrated the suspect reliability of such testimony. The district court, deliberating 30 years
after Barefoot, demurred, stating:

To the extent that studies may show that determinations of future dangerousness are so unreliable as to be per se improper, such a ruling
would need to come from the United States Supreme Court. . . . This Court is not prepared to overrule the Supreme Court’s reasoned
decision on this matter.193

Two other capital sentencing issues that may be relevant to mental health professionals should be noted.
First, in a state in which dangerousness is not an aggravating circumstance, certain types of mitigating
information about an offender’s postoffense behavior may be considered irrelevant. In Skipper v. South
Carolina,194 three members of the United States Supreme Court suggested that unless it is necessary to rebut
the prosecution’s assertion that the offender is dangerous, testimony that the offender has made a “good
adjustment” in prison could be barred. It is unclear whether testimony about postoffense remorse on the
offender’s part would also be prohibited by this reasoning.
Second, in many cases an offender’s mental illness, although presumptively mitigating, might also be
directly connected with an aggravating circumstance. For instance, an offender’s risk for violence might be the
result of mental illness. Similarly, the “heinousness” of the murder might in some way be related to mental
disorder. In the case on which Case Study 9.1 is based, the Florida Supreme Court made clear that when an
aggravating circumstance is the “direct consequence” of mental illness, a death sentence based on it is
invalid.195 In other words, when mental illness could form the basis for both an aggravating and a mitigating
circumstance, it may be considered only in connection with the latter. Although the United States Supreme
Court has not yet addressed this issue, it has intimated that it might agree with the Florida Supreme Court.196
Despite this case law, important to note is the voluminous research indicating that jurors often perceive
evidence of mental illness as an aggravating circumstance (usually because they believe it correlates with
dangerousness), rather than as a mitigating circumstance.197 This research suggests that extreme caution
should be exercised in deciding whether and how to present evidence of mental disorder in mitigation. [§ 9.08

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suggests some methods of doing so.198]

(b) Procedural Criteria

In contrast to typical sentencing, the process when death is the potential sentence is very formal, providing the
defendant with many of the procedural protections normally associated with trial. Justice Blackmun has
observed:

In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the
procedure by which the State imposes the death penalty than with the substantive factors the state lays before the jury as a basis for imposing
death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty.199

Accordingly, the typical death penalty statute provides the following procedural protection:200

The determination of guilt or innocence and sentencing is bifurcated; that is, it occurs at two separate
proceedings.
The defendant must have access to and be able to contest all information to be relied on by the
decisionmaker, and if information is withheld, it must be made available for appeal.201
The reasons for the sentence must be stated in writing.
Automatic appellate review by the state’s highest court must be available.
Rules of evidence usually apply (though their application is not constitutionally compelled).202

In addition, in practice, any obstacles to obtaining expert assistance are normally relaxed in capital cases.
Indeed, in Ake v. Oklahoma,203 the Supreme Court held that a capital defendant is entitled to psychiatric
assistance when dangerousness is an issue in capital sentencing, although it also limited this assistance to one
professional and made clear that defendants are not entitled to the clinician of their choice [see § 4.03(b)(1)].

9.06. FACTORS INFLUENCING SENTENCING

From the foregoing, it should be apparent that mental health professionals could provide input on a variety of
issues relevant to sentencing. But what is the impact of such input? Before examining in more detail the
information the clinician can provide at sentencing, and to put its usefulness in perspective, we review briefly
some of the nonclinical influences on the sentences assigned by judges and juries.

(a) Judicial Philosophy

An obvious influence on sentencing comes from the judge’s own predilections. Indeed, one study that
examined sentencing disparity in the federal courts prior to adoption of the federal sentencing guidelines
concluded that “more variance in sentences is explained by differences among individual judges than by any
other single factor.”204 Now that the federal sentencing guidelines are advisory rather than mandatory, the
identity of the sentencing judge once again appears to be an important variable in determining sentence.205
Similarly, in her discussion of factors that contribute to sentencing disparity, Diamond identified varying
judicial sentencing goals as a crucial factor.206 Some judges seem more attuned to retributive considerations,

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whereas others are prone to seek dispositions that further rehabilitative ends. Diamond hypothesized that
cases in which individual philosophies play the most important role are probably those in which conflicting
information (e.g., both aggravating and mitigating) is present. Of overriding concern is research indicating
that when judges depart from established sentencing guidelines, their judgments tend to correlate with
inaccurate predictions of recidivism.207

(b) System- and Defendant-Based Factors

Various other factors have been shown to be related to sentencing decisions. It is well established that
defendants who go to trial and are convicted receive harsher sentences than those who enter guilty pleas
through a plea agreement.208 The implication is that judges penalize defendants for exercising their
constitutional right to a trial by jury, or at least want to send a message to guilty defendants that the system
prefers them to plead guilty. Other research indicates that individuals who are denied bail and who have
appointed, as opposed to retained, counsel are subject to more severe sentences.209
Of course, factors related to offenders’ characteristics also play a role in sentencing. In addition to obvious
factors, such as degree of victim harm and prior convictions, studies routinely show that race and gender are
correlated with sentence length (with members of minority groups and males more likely to receive harsher
sentences), although the extent to which explicit bias rather than institutional patterns of practice, type of
crime, poverty, and other factors explain the divergence is unclear.210 Mental disorder can also have a
significant impact on sentences, although whether it plays a mitigating or aggravating role is dependent on a
number of factors, many of which are explored in later sections of this chapter.211
These findings help explain the impetus for determinate sentencing designed to remove the influence of
factors considered irrelevant to punishment (e.g., judicial preferences, type of counsel, gender) and to focus
the issue on retribution (e.g., prior offenses and degree of harm caused). One might assume that as sentencing
does become determinate, the influence of many of the factors described above should disappear. However,
other research indicates that even in regimes where judicial discretion is limited, disparity occurs—if only
because prosecutors, who have biases as well, control the charging process and thus can strongly influence the
sentence in this way.212

(c) Presentence Investigations or Reports

The probation officer’s presentence report or PSI [see § 9.03(b)(2)] is generally conceded to be the most
influential tangible factor on the ultimate sentence.213 Indeed, in some determinate sentencing jurisdictions,
including the federal courts, the report’s calculation of guideline categories is often close to dispositive
(although, again, Booker and Blakely make clear that any facts “found” by the probation officer cannot dictate
sentence enhancements above the statutory maximum).214 Even in cases resolved through plea bargaining,
“judges may prefer the pre-sentence reports’ factual assertions [to] those stipulated in an agreed plea deal.”215
Mental health professionals and attorneys need to be aware of this reality, if for no other reason than to avoid
the assumption that the clinical evaluation and associated report constitute the sole or primary source of
information available to the court.

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 The PSI also plays a critical role in the life of the offender after sentencing. For example, in the federal
system, the Bureau of Prisons uses the report to prepare the classification study that identifies the offender’s
needs and assists in assigning him or her to a particular institution and a particular level of security within the
institution; to determine the conditions of the inmate’s confinement (e.g., visitation rights, work–study
release, and transfer to another institution); and to make decisions on granting or withholding good-behavior
credits. In the federal system prior to the abolition of parole, the report also was reviewed by the parole
commission when considering the appropriateness of parole216—a practice that presumably still occurs in
those states that have retained parole.
Because of the importance attached to the PSI both during and after sentencing, its accuracy is of
paramount concern. Unfortunately, research indicates that there are “numerous instances of serious
inaccuracies in presentence reports.”217 One way of correcting this inaccuracy would be to permit the
defendant to peruse the report before its use. Traditionally, however, full disclosure is not required, out of fear
that the defendant would somehow misuse the information.
A more sensible approach is found in Rule 32 of the Federal Rules of Criminal Procedure, which since
1974 has permitted greater disclosure in federal court. Under that rule, the probation officer must, within 35
days of sentencing, submit the report to the defense, which must make any objections to its accuracy within 14
days of receiving it. The probation officer is then to meet with the parties and, if necessary, investigate further
and revise the report. The court is to receive the report at least 7 days before sentencing, with any unresolved
objections appended.218 The court has discretion to hear evidence on the objections, and must indicate in
writing its conclusion about the objections.219 The only information in the report the defendant is not entitled
to review is the probation’s officer recommendation regarding sentencing; “any diagnosis that, if disclosed,
might seriously disrupt a rehabilitation program”; “any sources of information obtained under a promise of
confidentiality”; and “any other information that, if disclosed, might result in physical harm or other harm to
the defendant or others,”220 and even then the Rule requires that the court provide the defense with a
summary of the excluded information.221
The federal rule represents a reasonable attempt to balance the court’s interest in obtaining and relying on
all information about the defendant with the defendant’s interest in having sentencing based on accurate
information. A study of the impact of this rule concluded that despite fears to the contrary, disclosure did not
have a negative impact on the sentencing process.222 However, the manner in which some courts utilize the
exceptions to disclosure is troubling. For instance, some courts have withheld a wide array of information
under the “diagnostic information” exception.223 Since this information is notoriously unreliable and may have
a significant impact on sentencing, these exclusions can undercut the purpose of disclosure. Similarly,
information in the report may be used despite serious objections to it. For example, as one commentator
noted, under the current system the Bureau of Prisons can rely on a disputed sexual offense in designating a
person as higher-risk and justifying assignment to a higher-security prison.224 Such designations can also
affect prison employment, prison transfers, visitation and mail privileges, sentencing credit, work–study, and
medical and mental health treatment, and are very hard to change after sentencing.225
Clearly, a clinician should try to gain access to the PSI. Its impact on sentencing will be substantial, and its
recommendations should be taken into account in formulating a clinical opinion.

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 (d) The Impact of Clinical Recommendations

In light of the foregoing, it is probably no surprise that despite the widespread use of mental health
professionals at sentencing, and despite the law’s traditional acceptance of mental disorder as a mitigating
factor at disposition, the impact of clinical opinion is insignificant in many cases—either in the sense that the
judge pays little attention to it, or in the sense that the judge merely uses it to justify “scientifically” a decision
he or she has already made. For instance, some research conducted when indeterminate sentencing was in
vogue found a high concordance rate between clinical opinions and judges’ decisions, but also concluded that
the primary determinant of both was the number of prior offenses, meaning that the clinical opinions
contributed very little to the ultimate determinations.226 Other studies of the same vintage found that a
clinical opinion is most likely to be followed when disposition is “obvious,” or when incarceration or probation
is “recommended,” and that courts tend to reject recommendations for release unless the offense is not
serious.227
The law in determinate sentencing states reduces even further the likelihood that clinical opinion will have
substantial impact in most cases. Indeed, at the federal level, the guidelines specifically prohibit downward
departures based on mental disorder where “the facts and circumstances of the defendant’s offense indicate a
need to protect the public because the offense involved actual violence or a serious threat of violence; or the
defendant’s criminal history indicates a need to incarcerate the defendant to protect the public.”228 Even
though some judges recognize that “[p]ersons who find it difficult to control their conduct do not—
considerations of dangerousness to one side—deserve as much punishment as those who act maliciously or for
gain,”229 downward departures on grounds of mental disorders such as depression, mania, severe emotional
stress, and psychosis are usually “summarily rejected.”230
One reason clinical input may not have much independent impact in many types of cases is the priority
many judges assign to PSIs. For instance, Bohmer found that recommendations contained in presentence
reports received considerably more attention than reports submitted by mental health professionals, which had
a “low rate of acceptance” by the courts.231 A related reason may be that many judges view mental health
professionals as “bleeding hearts” who too often find pathology as an excuse for criminal behavior and are
unrealistic about the true rehabilitative potential in a given case. A third reason—and one that mental health
professionals may be prone to ignore—is that even under an indeterminate sentencing scheme, rehabilitation
is only one of many factors a judge must consider. In particular, retributive, incapacitative, and deterrence
concerns may become paramount, especially as the seriousness of the offense escalates.
Despite this rather grim assessment of clinical participation at sentencing, mental health professionals do
have a role to play at this stage of the criminal process, although one that is perhaps more restricted than the
role envisioned by those who most avidly support the rehabilitative model. In our view, the mental health
professional can best serve the sentencing process by carefully gathering information about the individual
offender that helps explain the way in which the offender differs from stereotypical notions the court might
have about those convicted of a particular offense. That is, the clinician should try, in those cases in which it is
appropriate, to answer the judicial question: “Is this offender different from any of the hundreds of others I’ve
seen, and if so, how?”
Responses to this overarching question will be shaped by the type of sentencing scheme (indeterminate or

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determinate) that exists in the clinician’s jurisdiction and by the specific issues the referral source wants the
clinician to address. As already indicated, one or more of the following assessments will usually be involved:
(1) the offender’s need for treatment (relevant under indeterminate sentencing), (2) information bearing on
the offender’s personal culpability (relevant under determinate and indeterminate sentencing), and (3) future
dangerousness (relevant under indeterminate sentencing). The next three sections focus in turn on each of
these issues. We give greatest emphasis to the issue of clinical involvement in the determination of future
dangerousness. Assessment of treatability needs requires relatively little coverage, in light of the significant
overlap with concerns common in ordinary clinical practice; similarly, much of what can be said about
presentence evaluations on culpability overlaps both conceptually and practically with the clinical portions of
Chapter 8.

9.07. ASSESSMENT OF TREATMENT NEEDS

Of all the tasks associated with sentencing, assessing an offender’s need for treatment is the one most
consistent with a mental health professional’s training and technical expertise. Given the turn toward
determinate sentencing, this type of assessment has become much less important than it was in the 1960s and
1970s.232 Yet indeterminate sentencing still exists in some states, and even in determinate sentencing regimes,
the fact that treatability is not supposed to affect the length of disposition does not mean it cannot affect its
nature.233 Increasing economic constraints may make clinical information about alternatives to incarceration
particularly useful.234 Such alternatives, which are especially likely for those charged with less serious crimes or
those who are first-time offenders, include pretrial diversion programs, inpatient or outpatient civil
commitment, supervision in drug courts or mental health courts, home confinement or home arrest, and
work-release programs.235 Even if an individual is incarcerated, a mental health professional might be able to
tell the court what type(s) of treatment the offender could benefit from in prison, whether it is available there,
how being in custody might affect the course of a disorder,236 and how such treatment might affect the
likelihood of recidivism.237 After briefly describing the types of offenders a treatment evaluation is likely to
involve, this section discusses the typical areas of inquiry and problems connected with making treatment
recommendations.

(a) Characteristics of Offenders Evaluated for Treatment

Theoretically, many seriously disordered criminal defendants should be diverted before sentencing—through
either civil commitment, adjudication as incompetent to proceed, or acquittal by reason of insanity. Yet a
substantial fraction of convicted offenders experience symptoms of serious mental illness,238 and many others
referred for presentence examination who are not seriously ill display some level of impaired functioning.239 A
referral is likely to stem from a judge’s or attorney’s perception that something is “wrong” or “different” about
an offender. Types of adult offenders often referred for treatment evaluations include the following:

Youthful adult offenders “at a crossroad.”

Persons charged with serious crimes who do not have a significant history of offending.
Persons charged with offenses (not necessarily serious) that are intuitively associated with psychological

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 aberration (e.g., exhibitionism, fire setting, and conduct associated with drug or alcohol use).
Persons with obvious, serious mental disorders.

(b) Conducting the Treatment Evaluation

Treatment evaluations conducted for purposes of sentencing can be very wide-ranging. A still-relevant
evaluation guide published by the National Institute of Corrections in 1984 recommends assessing the status
of an offender with respect to several areas: serious psychiatric impairments, substance use disorders; deficits
in intelligence and/or adaptive behavior; academic training; vocational skills; and interpersonal/social skills.240
Beyond interviewing the examinee and collateral sources (e.g., family members), examiners should attempt to
find and review records of past and current medical, mental health, and substance use treatment; school and
vocational functioning; and contact with the criminal justice system.241
Also of some assistance in making treatment assessments is the Level of Service Inventory—Revised.242
Although this tool was developed primarily to structure assessments of male and female offenders’ recidivism
risk and to aid in calculating specific risk estimates, it can also prove helpful in needs assessment and
treatment/habilitation planning with offenders, insofar as it identifies dynamic (as opposed to static) factors
associated with higher rates of offender recidivism. In assessing these areas, examiners can also use their usual
array of structured and unstructured interviews, structured and unstructured psychological tests, lab tests, and
various sources of collateral information (e.g., educational, vocational, medical, and mental health records;
perceptions of the offender offered by knowledgeable third parties). Examiners can also employ some of the
many screening instruments243 and consult guidebooks244 developed specifically to assess the needs of inmates
with mental disorders.
Moreover, clinicians can now take advantage of empirical information on the efficacy of various treatment
programs. Decades ago, research on rehabilitation was interpreted as showing that “nothing works.”245
Assessments since 1990 have been somewhat more optimistic, at least when criminal recidivism is the
outcome variable. Several meta-analyses of corrections treatment studies, including those conducted by
Andrews and colleagues,246 Lipsey,247 and subsequent investigators,248 suggest that appropriate treatment
does work to reduce recidivism (though sometimes only modestly).249 “Appropriate” treatments are those that
are follow three principles: (1) identifying and focusing on offenders at highest risk for recidivism (the “risk”
component); (2) focusing treatments on criminogenic factors (e.g., antisocial attitudes or peer relationships,
criminal role models) rather than personal/emotional problems (e.g., poor self-esteem) (the “needs”
component); and (3) using interventions with a clear, concrete focus on activity and acquisition of skills that
offenders can apply—that is, approaches aiming for cognitive and behavioral change rather than insight into
one’s problems (the “responsivity” component).250 In their meta-analysis, Andrews and his colleagues found
that “appropriate” treatments, so defined, may reduce criminal recidivism by half compared to recidivism rates
of those subjected to criminal sanctions alone (e.g., probation and incarceration), or to “inappropriate”
treatment or treatment that does not clearly embrace these three principles. Subsequent studies report similar
findings in general offender populations.251 Research examining the efficacy of treatment for sex offenders
shows application of these same principles achieve reductions in recidivism for those offenders as well,
although the findings are not as robust.252

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 Research on the efficacy of home confinement is also thin but suggestive. Although home confinement
restricts freedom, it allows for the presence of family support while offenders obtain treatment in the
community (with electronic monitoring of movement to authorized locations) and/or perform community
service, which from a treatment standpoint may have some restorative value. Home incarceration,
confinement to a halfway house, or probation may also permit participation in competitive employment or
work release programs, which can promote prosocial integration into the community and lead to the
development of skills and qualifications to allow offenders to be self-supporting.253 Work also has mental
health benefits, including the sense that offenders are participating in and contributing to society, along with
(in the case of severely ill individuals) a fuller sense of recovery.254

(c) Formulating the Treatment Recommendation

To summarize the results of the wide-ranging inquiry suggested by the foregoing discussion, the types of data
that are of particular interest to courts fall into five categories:

An offender’s motivation. (Does the offender express remorse about the act and express a desire to be
treated?)
Family/environmental situation. (Would it be beneficial or harmful to the offender and his or her
associates if the offender returned to it?)
Past treatment attempts. (If there have been successes, can they be repeated? If not, is there a treatment
modality that has not been tried with this offender and that has demonstrated—preferably empirically—its
efficacy?)
Offense record. (Is there a pattern that treatment might affect?)
Need for external control. (Can treatment safely take place in an unsecure environment?)

Some of these issues, especially the last two, are related to dangerousness assessments—the subject of §
9.09. As developed in that section, “treatability” and “dangerousness” are two sides of the same coin to many
courts and can be subsumed within the concept of “risk management.” Leaving to that section more specific
commentary on recommendations about risk, here we make some general observations about formulating
treatment recommendations, and then discuss how those recommendations should be framed.

(1) General Considerations

In producing a report about treatability for the court, the evaluator should bear in mind a number of
considerations. First, even if one adopts a purely utilitarian approach to punishment as a mechanism for
reducing recidivism, psychiatric or psychological treatment is not necessarily the best response to all crime. In
some situations, negative reinforcement (e.g., fine and incarceration) may be more appropriate;
overdiagnosing or overpathologizing behavior is to be avoided. Second, the evaluator should be thoroughly
familiar with treatment resources in the community and be as specific as possible about their usefulness in a
particular case, relying as much as possible on empirical information about what works, of the type just
described.255 A report that recommends an abstract treatment that is not available, too expensive, or untested

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is not likely to be helpful to the court. Third, in recommending a treatment regimen, the evaluator who
happens also to provide those treatment services should be attuned to potential ethical conflicts, and should
avoid (whenever possible) recommending that if the court thinks such treatment appropriate, he or she can
provide it [see § 4.05(c)]. Finally, the evaluator should be alert to the possibility that an offender, eager to take
advantage of alternatives to incarceration such as probation, will prevaricate about or miscalculate his or her
willingness and capacity to participate successfully in a given program. Related to this concern, the evaluator
should be frank with the examinee about the challenges of such programs, including limits on confidentiality
in light of court-reporting requirements [§§ 4.05(d) & (e)] and the possibility that a failure to complete a
given program can result in a longer sentence than if the offender simply accepts a prison term now (these are
both facts that attorneys should provide, but sometimes does not in their eagerness to get a “deal” for their
clients).

(2) Scope of Recommendations

As is true for every context discussed in this book, the mental health professional’s job in assessing treatment
needs is not to make a legal decision, but rather to provide data so that the appropriate legal authority can
make a more informed decision. Although a clinician may feel that an offender needs treatment to improve
his or her emotional or behavioral functioning, the clinician should not go further and conclude that the
offender “needs,” in the sense of “requires,” a particular disposition. As indicated above, the clinician might
advise the court of what is likely to happen if a particular treatment is provided or not provided—for example,
whether a person with psychosis is likely to become severely dysfunctional if imprisoned rather than
hospitalized, or whether a person with limited intellectual abilities and work skills requires vocational training
to obtain gainful employment. However, recommending the length of disposition or indicating whether it
should take place in or out of prison requires consideration of the moral goals of sentencing and current social
and political pressures that lie beyond the clinical expertise of the mental health professional.
We therefore advise against making direct recommendations for disposition or placement (e.g., “This
offender should be sent to place X to receive treatment Y”). Rather, a clinician should provide the court with a
series of “If . . . , then . . . ” statements that provide the court with alternatives, depending on what
dispositional action is taken—for example, “If the court is inclined to a disposition such as probation, then
Mr. Doe’s limited social skills may be the focus of treatment through group therapy at the Westside Mental
Health Center. If the decision is to place Mr. Doe in the state prison, then his social skills are not likely to
improve, as the clinical staff members at the prison inform me that they presently have no active therapy
focusing on social skills training.” The court can then decide whether to afford Mr. Doe the group therapy
opportunity in light of competing concerns, such as retribution or the need for preventive detention.

9.08. ASSESSMENT OF CULPABILITY

Unlike treatment needs, culpability is an issue considered in every sentencing scheme, whether it is
indeterminate, determinate, or some mix thereof. From the defendant’s perspective, the clinician may
contribute to the culpability assessment in three ways. First, the clinician may inform the judge or jury about

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situational factors that contributed to the commission of the offense, as enhanced awareness of these factors
may undermine the factfinder’s presumption that the crime was a function of the offender’s free choice.
Second, the clinician may help to educate the judge or jury about the offender’s life generally. An offender
who has suffered greatly may arouse more sympathy than one who has not. Third, explanations of cultural
factors may help the factfinder understand how the offender experienced the situation that led to the charge.
These three roles are described here, followed by comments on evaluation procedures.

(a) Understanding the Offense

“The jury and judge must be made to understand what caused a crime, particularly in homicides. . . . It is the
role of psychiatry and related professions to provide that understanding so a rational approach to a penalty can
be taken.”256 To set punishment, the sentencing judge or jury must determine the seriousness of the crime
committed. This objective requires consideration of both the harm done and the culpability of the offender.
Lay assessments of harm are reliable. For example, people can agree, when contemplating different crimes
in the abstract, that armed robbery is more serious than shoplifting but less serious than murder. The same is
not true, however, of judgments in the area of personal culpability: How people attribute culpability and
blame is highly influenced by minor factors that have little relevance to notions of justice.257 As Bonnie has
noted in discussing culpability in the context of capital sentencing, the law seeks to make the difficult moral
distinction between “a person who has chosen evil” and “the person whose homicidal behavior arose from
significant impairment in his normal psychological controls.”258
Clinical explanations of “how” or “why” a crime occurred offered at sentencing are similar to those
described in Chapter 8, which discusses mental state defenses.259 The significant difference is that at the
sentencing stage, the door is open to a much wider range of clinical input than is true at trial; explanatory
formulations do not have to be so compelling as to constitute a possible legal defense. For example, in capital
sentencing [see § 9.05(a)], examiners are generally not constrained by a threshold finding of mental disease or
defect.260 The possible influences of chronological age, psychological immaturity, unstable family background,
lack of adequate role models, physical or neurological impairment, intoxicants, and/or stress due to situational
factors might all be woven into a clinical formulation that permits the judge or jury to attribute the crime in
part to influences other than the offender’s evilness or depravity.261

(b) Understanding the Offender

Even when not integrated into an explanatory theme, a description of the offender’s life may arouse the
judge’s or jury’s sympathy sufficiently to lead to a reduced sentence.262 Similarly, merely having a history of
psychiatric problems may affect punishment, depending on how the information is presented.263
However, research employing simulated sentencing exercises reveals that efforts revolving around arousal of
sympathy are likely to be less successful as the severity of the offense increases. In a series of vignettes, Austin
varied the amount of extraneous offender suffering (none, moderate, excessive) in three cases involving
increasingly harmful outcomes (i.e., purse snatching, purse snatching plus assault, or rape), and asked
undergraduates to assume the role of jurors and impose the most appropriate sentence, given the

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circumstances of each case.264 For the minor offense of shoplifting, sentences decreased as a function of
offender suffering, but with crimes of moderate or high severity, information that the offender had suffered
moderate physical injuries did not affect sentencing recommendations. Only when the offender’s suffering was
excessive was the sentence reduced. Austin concluded that while jurors will sentence according to “just
deserts” principles for offenses of low severity, other considerations (e.g., vengeance for harm caused to the
victim) influence sentences imposed for more serious offenses.
These findings are consistent with legal rules that affect sentencing, where only an “exceptional” amount of
suffering by the defendant may justify a downward departure in sentence.265 They are also consistent with
research by Robinson and his colleagues, which investigated the impact on sentencing decisions of “extralegal
punishment factors” (XPFs)—that is, factors that are not associated with traditional legal concerns relating to
harm, blameworthiness, or deterrence.266 In their vignette studies evaluating the impact of 18 potential XPFs,
they found that the offender’s reaction to the offense (particularly remorse), subsequent rehabilitation, and
postoffense suffering were especially strong predictors of support for mitigation. Again, however, the appeal of
these mitigators diminished as the seriousness of the offense increased.267
Finally, it should be noted that mitigating information submitted only to arouse sympathy may have a
lessened impact in certain types of sentencing schemes. As indicated earlier, in many determinate sentencing
jurisdictions, such mitigating information may be inadmissible because it is not directly related to the
offender’s mental state at the time of the offense.

(c) Cultural Factors

Awareness of how ethnicity, culture, personal experiences, psychopathology, and legally relevant categories
interact is an important feature of all forensic mental health assessments.268 All participants in the legal
process—including attorneys, judges, mental health professionals, and jurors—bring with them culture-bound
attitudes and values that may be different from those of the persons they are judging.269 For these and other
reasons, forensic examiners are now encouraged to consider cultural influences in any opinion formulation.270
Given the stakes involved, this sensitivity to cultural variations is particularly important in the sentencing
context, in a number of ways. First, examiners can explore features of identity and self-concept that reflect
culture-linked beliefs and fill out their social context with an eye to grasping offenders’ moral views or
reasoning processes.271 In some jurisdictions, the extent to which an offender’s concept of wrongfulness
reflects sociocultural features (e.g., attitudes toward insults to manhood, domestic disputes, or racial issues)
might count as a potential mitigating factor in sentencing.272 The clinician might also help avert
misunderstanding that might arise from mistaking cultural and ethnic aspects of an examinee’s trial or hearing
demeanor for other things (e.g., callousness, lack of remorse, symptoms of psychosis). Furthermore,
understanding matters of culture and background can affect locations for rehabilitation programs. For
example, if a program that involves placement with family is under consideration, the following considerations
may be crucial:

If one is sent back to one’s family or community after legal entanglement, it will be important to know what sort of environment one is
returning to. Will the person be accepted by his family and reintegrated into the community? How does the family understand the illegal
behavior, and what is their attitude towards the returning individual? It will be important to consider the reactions of family and community

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 members to a psychiatric illness and deviant behavior. Will one have the necessary support and structure to make a successful rehabilitation?
273

In order to carry out these roles, clinicians must be aware not only of the relevant cultural variables, but of
how their own preconceptions about culture can influence the evaluation process. Psychiatric disorders are
diagnosed at different rates in different racial and ethnic groups. Compared to Americans of European origin,
for example, African Americans with similar symptoms are more likely to receive diagnoses of psychoses and
less likely to receive diagnoses of mood or anxiety disorders.274 In general, diagnostic differences (and errors)
may arise from cultural differences in styles of communication and interaction, as well as perceptions of the
roles of doctors and other professionals. A clinician lacking knowledge about how an examinee’s culture and
associated life experience can affect his or her presentation may misinterpret information obtained during
assessments or fail to account properly for the impact of health care disparities in making formulations,
reaching judgments about treatability, and giving testimony.275
The impact of culture can be particularly evident in the interpretation of psychological tests. No test is
culture-neutral, and the test results of persons from cultures different from those on which tests were
developed require thoughtful consideration of how to interpret individual item responses, response style, and
overall test results.276 For example, some response style scales of the Minnesota Multiphasic Personality
Inventory–2—Restructured Form (MMPI-2-RF) require interpretation in light of the degree to which an
examinee’s background emphasizes conformity or frowns upon uninhibited displays of emotion.277 Conveying
this kind of information in a report summarizing a sentencing evaluation may help the factfinder better
interpret observed phenomena (e.g., the offender’s demeanor or reactions). Similarly, although several
publications attest to the cross-cultural usefulness of the Psychopathy Checklist—Revised (PCL-R),278 the
instrument’s semistructured interview format requires some knowledge and awareness of the examinee’s
cultural background during its administration.279
Even more than effort at understanding and respecting cultures, clinical competence in formulating
assessments with culture in mind entails a conscious effort on the part of clinicians to identify and factor in
their own social or cultural biases. Examiners’ religion, social status, and ethnicity all influence their views of
others, as do personally held stereotypes.280 Although no human examiner can avoid being vulnerable to these
influences, attention to them and to countertransference feelings (which are as important in forensic
examinations as they are in therapeutic encounters) may help to limit the impact of unconscious reactions.
Consulting colleagues or experts may help the examiner identify these issues and may broaden the examiner’s
grasp of an offender’s background. This, in turn, may help the examiner better convey these ideas in reports
and testimony.

(d) Evaluating Culpability

The presentence evaluation that focuses on possible mitigating factors at the time of the offense is similar to
the investigative inquiry involved in reconstructive mental state defenses. Many of the same tools and
techniques, including accessing third-party sources of information, may be helpful in this evaluation. But
because the clinical investigation at presentencing is not constrained by having to fit criteria for recognized
legal defenses (e.g., a severe mental disease or defect that could negate knowledge of wrongfulness), the door

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is open to a wider range of descriptive and theoretical formulations, such as those discussed in § 8.07(b). Any
information, for example, that helps the judge or jury understand intrinsic limitations or external factors that
undermined an offender’s self-control may aid their determination of the individual’s culpability.
In jurisdictions that have statutes explicitly identifying what mitigating factors to consider, clinicians
should also be aware of the law’s possible implications for the evaluation. For example, as noted in § 9.05(a),
most states’ capital sentencing statutes include, as a mitigating factor, circumstances in which the defendant
acted under extreme duress or under the substantial domination of another person.281 Depending on the facts
of the case, clinical inquiry into the issue of the “domination of another person” might entail interviewing
observers of or accomplices to the offense, and developing some judgments as to the relative strengths of the
various personalities involved and the dependencies among them.
As elsewhere, clinicians should be candid about the sources of their data and the validity of their inferences,
and they should clearly advise the court of the bases and limitations of their formulations. Clinicians should
also avoid moral conclusions regarding whether any developmental deficits, environmental stresses, or
psychopathology is sufficient to meet the discretionary legal test. The clinician’s responsibility is to explain
how psychological factors affected the offender’s behavior. Whether and to what degree the offender does or
does not deserve leniency should be left for the attorneys to argue and the judge or jury to decide.

9.09. ASSESSING RISK OF VIOLENCE AND RECIDIVISM

Regardless of the theoretical bases underlying sentencing structures, an offender’s potential for future violence
is almost always an explicit or implicit consideration. Forward-looking, indeterminate schemes—exemplified
by special-track provisions for sex offenders—forthrightly make violence or recidivism potential a part of the
problem to be treated and reduced. Similarly, many jurisdictions require the judge or jury to consider evidence
regarding future dangerousness in deciding whether to impose the death penalty.282 Although the “just
deserts” justice model is in theory not concerned with future behavior, perceptions of violence-proneness may
nonetheless influence where within the range of prespecified retributive punishments an offender’s sentence
should fall. Moreover, the sentence enhancements for prior crimes allowed under determinate-sentencing
schemes may be a proxy for a future-dangerousness assessment, rather than a moral judgment that a repeat
offender is more blameworthy than a first-time offender [see, e.g., the discussion of Rummel in § 9.05(a)].
Clinicians’ involvement in what is now called “risk assessment”—or, as was more common before the
1990s, “violence prediction”—is morally fraught and perhaps less controversial than it ought to be. In no other
area of the law does expert testimony have a possible life-or-death impact or carry the potential to add or
subtract years from an offender’s sentence. At the same time, many factors limit clinicians’ abilities to assess
risk, and whether mental health professionals’ risk assessments are sufficiently accurate to meet acceptable
scientific or legal standards remains a topic of scholarly debate.
This section discusses the literature on the assessment of long-range risk (i.e., risk over several months to
years) for violence and criminal recidivism more generally. (Readers will find a somewhat parallel discussion
relating to short-term predictions in the chapter on civil commitment [see § 10.08(d)], and briefer references
to the risk assessment literature in many other parts of this book.283) We first review a variety of factors that
can affect clinicians’ judgments about violence potential. We then discuss empirical studies evaluating those

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judgments and criticisms of those studies. In the final section, we suggest particular factors to which clinicians
should attend and strategies that they might employ in developing and presenting formulations regarding
violence potential.

(a) Factors That Influence Judgments about Dangerousness

Among the aspects of risk assessment that can make the clinician’s task difficult are definitional variations; the
complexity and vastness of the literature on risk; unconscious and conscious judgment errors and biases; and
the “political” consequences of an erroneous prediction.

(1) Variability in the Legal Definition

The definition of “dangerousness” varies extensively from context to context even within the same
jurisdiction.284 For instance, in capital sentencing proceedings, Texas defines dangerousness as “a probability
that the individual will commit criminal acts of violence that constitute a continuing threat to society”;285 in
Texas sex offender commitment proceedings, by contrast, the inquiry is whether the person is “likely to
engage in a predatory act of sexual violence”;286 and at civil commitment in Texas, dangerousness focuses
simply on whether the person is “likely to harm others.”287 In noncapital sentencing cases where risk is
relevant, the judge probably is interested in ascertaining whether there is any “significant” risk for commission
of a felony. And the standard of proof that must be met to prove that these conditions exist can vary from
proof beyond a reasonable doubt in capital cases to a preponderance in insanity commitment hearings and
perhaps in noncapital sentencing as well.
The importance of these differences for the clinician is that the “outcome variable” may differ, depending
on the context. While a showing that an offender might commit assault within the next year or two could be
very relevant in a noncapital sentencing proceeding, it is probably not sufficient to support an aggravating
factor in a capital sentencing proceeding, and is clearly not the type of crime that is the focus of many sex
offender commitment proceedings.

(2) Complexity of the Literature

The literature on risk factors for violence is vast and complex. Discussed in detail in § 9.09(c), this literature
includes clinical anecdotes, theoretical analyses, experimental and quasi-experimental research,
epidemiological studies, and program evaluation studies. It has yielded guidance that includes biological and
demographic markers, clinical clues, developmental indicators, empirically determined correlates of violence
recidivism, and multivariate equations yielding statistically based classifications of risk.
This is both a blessing and a curse. On the one hand, researchers have identified a host of relevant factors,
and in many cases have established their empirical relationship to violence or aggression. On the other hand,
many studies suffer from methodological limitations, and their sheer number is daunting. The result, for the
conscientious clinician, is a lack of professional consensus on the best way to evaluate violence risk.

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 (3) Judgment Errors and Biases

In the absence of systematic guidelines for synthesizing the prediction literature and for applying it to
individual cases, mental health professionals have adopted varying approaches to developing opinions on
future violence. Noted here are a few of the common pitfalls encountered by clinicians who have done so.
One significant conceptual problem is the tendency to view dangerousness solely as a trait. Psychiatric and
psychological explanations for violent behavior have historically focused on an individual’s background and
enduring characteristics. Many currently available tools for assessing violence risk (discussed later in this
chapter) largely ignore the ways that situations and environment influence individuals’ choices and actions.288
Several factors contribute to this phenomenon. First, traditional mental health assessment strategies focus on
individuals. In addition, clinicians are not well trained in assessing social environments or contexts; these
usually fall within the purview and knowledge base of sociologists and social psychologists. Finally, clinicians
usually see their subjects in offices, jails, prisons, or hospitals, all settings that take examinees outside the social
contexts in which they typically function. These settings limit examiners to individual-focused assessment
techniques (mainly interviews and psychological testing), even if examiners recognize that such techniques tap
only limited information about violence risk.
Clinicians’ judgments may also be affected by cognitive heuristics that influence the selection and
weighting given to particular predictor variables.289 To use an older but still relevant example, Steadman and
his colleagues examined the dangerousness evaluations of 257 incompetent criminal defendants in New
York.290 Although the examining psychiatrists offered a variety of factors as the basis for predictions of future
violence,291 statistical analysis revealed that the psychiatrists gave one factor overriding significance:
“Psychiatrists seem to be making recommendations as to dangerousness based almost exclusively on the
defendants’ charges, with little additional discrimination evident.”292 Other studies, noted earlier in this
chapter in connection with the discussion of sex offenders’ sentencing, reported similar results [see § 9.06(d)].
This research illustrates how a particular piece of data, because of its recency (index offense) or its salience
(crime severity), may disproportionately affect clinical judgments.
Another potential source of error in clinical judgments is reliance on “illusory correlations,” which stem
from a belief that a relationship between two variables exists despite empirical demonstration that it does not
(or not to the degree believed). Illusory correlations persist in the clinical lore because of selective attention to
and recall of individual cases in which the relationship was emotionally vivid. In the prediction area, for
instance, Dinwiddie and Yutzy suggested that clinicians’ perceptions that dangerousness is highly associated
with the “misidentification syndrome” (an individual’s belief that he or she has changed identity) is an
example of an illusory correlation, given the lack of empirical data illustrating such a relationship in an
unselected sample.293 More generally, an examinee may be considered dangerous merely because he or she
suffers from a mental disorder. In reality (as recent research has shown), the relationship between violence and
mental disorder is more nuanced.294
Along the same lines are personal biases or attitudes that distort the predictive endeavor. Mental health
professionals who conduct risk assessment are often members of advantaged social groups, while persons of
color and lower socioeconomic status are overrepresented among examinees. As discussed in § 9.08(c), the
psychological literature has long recognized the importance of race, ethnicity, and culture in understanding

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behavior, and a growing knowledge base informs how these issues play out in forensic contexts.295 As
discussed in connection with treatment assessments, resentment over or ignorance about cultural or racial
differences may inhibit rapport between the examiner and the client. Even when rapport is established and the
examinee talks freely, relayed experiences may be foreign to the examiner, with resulting difficulty in
understanding their relevance for violence risk.

(4) Political Consequences for the Predictor

Finally, “politics” can influence an assessment. If an examinee is returned to or remains in the community on
the basis of a clinician’s risk judgment and subsequently commits a violent act, the clinician can expect
extensive negative publicity in connection with media coverage of the crime,296 as well as possible legal action
for negligent release (although to our knowledge, such liability has never been found in a sentencing case [see
§ 4.04(d)(2)]). In contrast, judging that an examinee is too dangerous to release usually carries no legal or
reputational consequences for a clinician, whether the examinee is subsequently confined or released (at least if
it is a court that ignores the clinical recommendation). For clinicians, the obvious incentive is to err on the
side of caution—that is, to avoid false-negative judgments about violence risk—in ambiguous cases.297

(b) The Move from Accuracy of Predictions to Risk Assessment and Management

In the 30 years that have elapsed between the first and present editions of this book, violence risk assessment
has undergone a complete transformation. In the 1980s, the existing studies of risk assessment—then
described as studies of “violence prediction”—emphasized clinicians’ unstructured, binary (“yes-or-no”)
judgments about whether mental patients were or were not “dangerous” (however this was defined).
Discussions of the quality of evidence and the accuracy of violence risk assessment still reflect impressions left
by these early studies.298 As we explain in § 9.09(c)(7), this emphasis on binary judgments is misplaced.
However, both mental health professionals and attorneys may benefit from a review of this literature, given its
major impact on how mental health professionals now undertake risk assessments.

(1) Errors and Base Rates

Investigators have several ways to describe the accuracy of an assessment technique or approach.299 One
approach involves constructing a 2 × 2 contingency table that arrays clinical predictions on one dimension and
observed outcomes on the other. Table 9.1 illustrates such an array.

TABLE 9.1. Typical Structure of a 2 × 2 Contingency Table Illustrating the Accuracy of Violence Predictions

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 From this table, one can compute a number of statistics. In the three decades prior to the mid-1990s, the
professional literature primarily focused on “how often predictions of violence are wrong” (HOPVAW). One
calculates HOPVAW by dividing the number of people incorrectly predicted to be violent by the total
number of people predicted to be violent—or B/(A + B), using the lettering in Table 9.1. This number
represents how often people were misclassified as “dangerous” and potentially subject to inappropriate
government intervention (e.g., enhanced imprisonment, execution or civil commitment). In some publications
(including previous editions of this book), HOPVAW is described as the “false-positive rate,” but this term
should actually be used only to describe B/(B + D), a statistic that we explain further below.
One problem with focusing on HOPVAW, as much pre-1990s literature did, is that it obscures another
type of error: missing an actually violent individual—that is, someone predicted to be nonviolent who
subsequently committed a violent act (erroneously sometimes called a “false negative”). This error exposes the
community to harm. A proper consideration of the policy implications of a prediction method should consider
both types of error and the outcomes associated with each.
A more important problem with the HOPVAW index is that it conflates intrinsic features of accuracy with
the violence base rate, or the overall frequency with which members of the study population act violently.
Studies of medical diagnostic techniques with binary outcomes avoid this problem by looking at two indices
that are independent of the base rate: “sensitivity” (also called the “true-positive rate”) and “specificity” (the
“true-negative rate”).300 In the violence prediction context, sensitivity, calculated as A/(A + C) using the
symbols in Table 9.1, is the probability that the test or method says “yes” if the person is violent—that is, how
sensitive the method is. Specificity, calculated as D/(B + D), is the probability that the method says “no” if the
person is nonviolent—that is, how specific the method is.
We can use these concepts to see what can go wrong when the HOPVAW approach is used to evaluate a
prediction method. Suppose we are analyzing a study involving clinical assessments of a group of 1,000
subjects, 25% (n = 250) of whom committed a violent act (i.e., a 25% base rate for violence). Assume also that
the risk assessment techniques employed by the clinicians have what appears to be a “high” sensitivity of 80%
and a “high” specificity of 80%; that is, the clinicians accurately identified 80% of the violent subjects and 80%
of the nonviolent subjects. Then the clinicians would accurately label as “violent” 250 × .80 = 200 truly violent
individuals and mislabel 50 violent subjects as “nonviolent”; similarly, the clinicians would correctly label
(1,000 – 250) × .80 = 600 “nonviolent” subjects and would incorrectly label 750 – 600 = 150 as “violent.”
Accordingly, in this study with a 25% base rate, the HOPVAW index would be 150/(150 + 200) = .43, or
43%. But suppose that the same clinicians, with the same assessment tool or technique, had evaluated a 1,000-
subject population in which just 100 of the individuals had become violent; that is, the base rate was only 10%.
Using the same math as before, we would find the number of individuals correctly labeled “violent” to be 80,
and the number of mislabeled “nonviolent” individuals to be 180. Now HOPVAW = 180/(80 + 180) = .69, or
69%. But we are still looking at the same clinicians, with the same risk assessment tool; the only difference is
the happenstance of the assessment group’s base rate!
Beyond the base rate problem, the HOPVAW approach fails to take into consideration another possibility:
graded levels of confidence about future violence. Instead of giving “yes” or “no” statements about future
violence, for example, the clinicians mentioned in the previous paragraph might have described the subjects by
using a 5-point scale. In such a scenario, subjects would be scored from 1 to 5, depending on whether they

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were considered to have levels of risk that were well below average (score = 1), below average (= 2), average (=
3), above average (= 4), or well above average (= 5). To characterize these clinicians’ performance within either
a HOPVAW or sensitivity–specificity framework, we could pick a single level—for example, by calling any
rating above “3” a “prediction of violence.” But doing so would cause us to miss much of what was going on.
Once these problems were pointed out,301 researchers began using receiver operating characteristic (ROC)
analysis to describe the accuracy of violence prediction. A key aspect of this method involves plotting a ROC
curve, which is a graph of a test’s sensitivity (true-positive rate) as a function of its false-positive rate (1 –
specificity). Unlike the contingency table in Table 9.1, which is restricted to just two judgments (“yes” or
“no”), ROC graphs depict the tradeoffs between sensitivity and specificity as the potential decision criterion
(i.e., the cutoff at which to say either “yes” or “no”) is moved throughout its entire range of possible values.
An example of a ROC curve appears in Figure 9.2, which describes the diagnostic accuracy of a
hypothetical clinician who graded levels of violence risk by using the 5-point scale described above. An
important feature of this figure is the way it depicts the area under the ROC curve, the gray-tinted regions of
Figure 9.2. Area under the curve (AUC) is a global index of multilevel classification accuracy; in the risk
assessment context, it is the probability that a randomly selected violent person will receive a higher risk rating
than a randomly selected nonviolent person. If the assessment provides no information (represented by the
dashed diagonal line in Figure 9.2), then it is no better than a coin flip, and the corresponding AUC is .50. A
perfectly accurate method would correctly rank violent and nonviolent persons every time, and its AUC value
would be 1.00. The ROC curve shown in Figure 9.2 has an AUC = .75, meaning that the clinician would
correctly classify 75% of randomly chosen pairs of violent and nonviolent subjects. The five labeled trapezoidal
layers in Figure 9.2 show why this is so. Each layer comprises a subarea (values of which appear to the right of
the category label) of the total AUC. The area within each layer equals the probability that a violent individual
would be rated at a particular risk level, multiplied by the probability that a randomly chosen nonviolent
person would have a lower rating.302 The sum of these subareas is .75, which (as should be the case) equals the
total area under the ROC curve.

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FIGURE 9.2. Receiver operating characteristic (ROC) curve describing diagnostic accuracy of a hypothetical clinician who graded levels of
violence risk by using a 5-point scale. The area under this ROC curve (AUC) is .75, meaning that the clinician would correctly rank 75% of
randomly chosen pairs of violent and nonviolent subjects. The five trapezoidal layers that form the total AUC have areas equaling the joint
probability that a violent individual would be rated at that risk level and that a randomly chosen nonviolent person would have a lower rating.

(2) First-Generation Prediction Studies

During the “first generation” of prediction studies (i.e., those conducted before the mid-1980s), investigators
focused on mental health professionals’ long-term predictions of dangerous behavior and often used the
HOPVAW statistic as the primary way of judging accuracy. Table 9.2 summarizes key findings from several
of these prediction studies, organized according to the populations about whom the predictions were made.
These studies varied considerably in methods used, which makes direct comparisons among them difficult (we
encourage readers to review them). But all had follow-up periods of a year or more, and most utilized formal
records—rearrest or rehospitalization—as the criterion for whether violence occurred. As the third column of
Table 9.2 reveals, HOPVAW in most of the studies was above 50%. Reviews of this literature, conducted a
decade apart, concluded that when mental health professionals made affirmative predictions of violence, they
were right no more a third of the time.303

TABLE 9.2. Summary of First-Generation Violence Prediction Studies

Study Criterion behavior HOPVAW Follow-up
Studies of Department of Correction parolees
Wenk, Robison, & Smitha

Study 1 Documented act of violence 86% ?

Study 2 Crime involving violence 99.7% 1 year
Study 3 Documented violent act 93.8% 15 months

Studies of maximum security forensic patients

Steadman & Cocozzab Rearrest or rehospitalized for an assaultive act 85% 3½ years

Thornberry & Jacobyc Arrest or rehospitalization for a violent act 85.5% 4 years

Mullen & Reinehrd Arrest for violent crime 89% 1–2 years

Studies of special-track offenders (dangerous sex offenders, defective delinquents)

Kozol, Boucher, & Garofaloe Committing a serious assaultive act 65% 5 years

Rappeportf Rearrest for any offense, violent or nonviolent 19–61% ?

Sidleyg Commission of an “aggravated” crime 67–81% ?

Studies of pretrial offenders (incompetent to stand trial)

Steadman & Cocozzah Assaultive behavior while in the hospital 44% ?

Assaultive behavior in community (arrest or 84% ?

rehospitalization for assaultive crime)

Cocozza & Steadmani Rearrest for violent offense 86% 3 years

Sepajak, Menzies, Webster, & Jensenj Criminal charges; behavior precipitating hospitalization; 44% 2 years
behavior in hospital and prison

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 Studies of community residents evaluated for dangerousness
Levinson & Ramsayk Threats or actions that endangered the well-being of 47% 1 year
others

Acts that endangered the well-being of others 71% 1 year

Note. HOPVAW, “how often predictions of violence are wrong.”

a
Data from Ernst Wenk et al., Can Violence Be Predicted?, 18 CRIME & DELINQ. 393 (1972).
b
Data from Henry J. Steadman & Joseph Cocozza, The Prediction of Dangerousness—Baxstrom: A Case Study, in THE ROLE OF THE FORENSIC
PSYCHOLOGIST 204 (Gerald Cook ed., 1980).
c
Data from TERENCE P. THORNBERRY & JOSEPH E. JACOBY, THE CRIMINALLY INSANE: A FOLLOW-UP OF MENTALLY ILL OFFENDERS
(1979).
d
Data from James M. Mullen & Robert C. Reinehr, Predicting Dangerousness of Maximum Security Forensic Patients, 10 J. PSYCHIATRY & L.
223 (1982).
e
Data from Harry L. Kozol et al., The Diagnosis and Treatment of Dangerousness, 18 CRIME & DELINQ. 371 (1972).
f
Data from Jonas Rappeport, Enforced Treatment: Is It Treatment?, 2 BULL. AM. ACAD. PSYCHIATRY & L. 148 (1974).
g
Sidley, see note 226.
h
Data from Steadman & Cocozza, see note 290.
i
Data from Cocozza & Steadman, see note 290.
j
Data from Diana S. Sepejak et al., Clinical Prediction of Dangerousness: Two-Year Follow-Up of 408 Pretrial Forensic Cases, 11 BULL AM.
ACAD. PSYCHIATRY & L. 171 (1983).
k
Data from Richard Levinson & George Ann Ramsay, Dangerousness, Stress and Mental Health Evaluations, 20 J. HEALTH & SOC. BEHAV. 178
(1979).

A Texas death penalty case that reached the United States Supreme Court, Estelle v. Smith,304 was also
influential in shaping opinion regarding clinical predictions of violence. On the basis of a brief “mental status
examination,” the state’s psychiatric expert, Dr. James Grigson, testified that Smith (the defendant) was a
“very severe sociopath”305 who was “going to go ahead and commit other similar or same criminal acts given
the opportunity to do so.”306 These conclusions apparently followed largely from Grigson’s impression that
the offender “lacked remorse,” which is neither necessary nor sufficient to establish a diagnosis of sociopathy,
antisocial personality disorder, or psychopathy. The fact that Smith had not killed the victim in the case at
hand (an accomplice had), the absence of any documented history of violent behavior (Smith’s sole conviction
was for possession of marijuana), and the obviously flimsy basis for the conclusions offered the sentencing
court led one commentator to conclude that Grigson was operating “at the brink of quackery.”307

(3) Critique of First-Generation Studies

As we have already explained, the first-generation studies used an inadequate accuracy criterion—the
HOPVAW statistic. Indeed, reanalyses of earlier data that used ROC methods found that clinical predictions
of violence had implied average AUC values well above chance levels.308 In addition, much of this research
was flawed in ways that would tend to underestimate the number of people predicted to be violent who in fact
were “dangerous.” First, in many of these studies the persons determined to be at high risk for violence were
confined and never released during the follow-up period, or were treated before they were released. As a
result, the sample of persons studied (i.e., those who were released and followed up) was restricted in a way
that reduced clinicians’ apparent accuracy rates. Second, some studies did not examine actual clinical
predictions. Rather, purely administrative decisions or impressions based on cursory clinical contacts with

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subjects were used as proxies for genuine judgments about dangerousness.
A third problem was related to the criteria used to decide whether violence had occurred. As the second
column of Table 9.2 shows, researchers typically relied on rehospitalization or rearrest records as outcome
measures. These criteria focused exclusively on serious aggressive acts, which, although important, presumably
did not include many instances of aggression that might have been serious but did not result in hospitalization
or arrest. To the degree that violent acts went unreported and did not result in arrest or hospitalization,
actually violent subjects were incorrectly classified as having been nonviolent during follow-up, which lowered
the apparent base rate and thus the HOPVAW value.
How much violent behavior went undetected in first-generation studies is unknown. But subsequent
research that followed subjects released shortly after risk assessment, using more comprehensive criteria for
violence and both official records and follow-up interviews with research subjects and collateral informants,
suggested that the one-year incidence of violence among patients was at least one-third.309 By contrast, using
arrest rates alone would have yielded an apparent incidence of 2–5%.310 Similarly, a study of discharged
emergency room patients reported a 45% incidence of violence when relying on self- and collateral reports.311
Steadman and his colleagues also found substantially higher base rates (33.6%) when using self- and collateral
reports of violence in the community.312

(4) Risk Assessment and Management: A Second Generation of Research

Viewing the earlier violence prediction studies from a vantage point that preceded use of ROC methods,
Monahan called for a “second generation” of studies using research designs that would correct the flaws in
earlier research.313 At least two major study programs took up this recommendation. One was funded by the
National Institute of Mental Health through grants to Lidz and Mulvey at the Western Psychiatric Institute
at the University of Pittsburgh, which resulted in the data referred to in the preceding paragraph.314 The
other was the MacArthur Risk Study (with major reports issued in both 1994 and 2001), funded by the John
D. and Catherine T. MacArthur Foundation through grants to Monahan and discussed in more detail
below.315 A related development, spurred in part by use of ROC methods as well as considerations relevant to
clinical usefulness, was that investigators and other scholars interested in the relationship between mental
illness and violence began to deemphasize efforts at binary predictions. Instead, the literature explored how
mental health professionals could generate clinical, descriptive, and empirical findings that would inform legal
judgments about risk assessment (e.g., under what circumstances will violence occur?) and risk management
(e.g., what might be done to reduce risk?). The impact of this reorientation of the prediction enterprise is
explored below.

(c) Assessment of Violence Risk

Problem 9.2

Read the report on Lester Thomas in § 19.05(c), up to the section on risk assessment. Draft the risk
assessment part of the report. Then compare your draft to the actual assessment report.

This section offers guidance to help mental health professionals conduct evaluations of violence risk that

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reflects what is known about factors affecting risk and how best to use available information. The section
begins by describing different approaches to risk assessment. It then describes various risk assessment tools
that have been developed, and ends with some suggestions, derived from the research, for performing an
evaluation and presenting the results.

(1) Approaches to the Assessment of Risk

Mental health professionals use at least five different approaches to assessing risk: “unstructured clinical
assessment,” “anamnestic assessment,” “structured professional judgment,” “actuarial assessment,” and
“adjusted actuarial assessment.”316 “Unstructured clinical assessment” is the method used in most
psychological and psychiatric evaluations, including many that involve risk assessment.317 Using this
approach, which has dominated forensic evaluations for well over 100 years, the examiner simply “combines or
processes information in his or her head” to form an opinion regarding the examinee’s risk for violence.318
The data the examiner might use may come from various sources, including results of psychological testing,
historical information, interview data, and laboratory findings. The types of information the examiner seeks
and uses often depends on what is readily available, and how the information is interpreted varies with the
examiner’s personal knowledge and experience, familiarity with the relevant literature, and memory of past
cases.
Key to understanding unstructured clinical assessment is that the examiner determines what information is
sought and relied upon, how it is organized and synthesized, and how much to weight any particular piece of
information. As a result, the interrater reliability (i.e., agreement) of risk judgments based on this approach is
low.319 Moreover, decades of research suggests that unstructured clinical assessment is likely to be less
accurate than judgments made using the structured methods described later in this section.320 At the same
time, differences among examiners, their techniques, and their abilities, and the lack of follow-up data on
their predictions, makes it difficult to identify or expose through cross-examination how accurate (or
inaccurate) a particular examiner’s clinical assessment is.
Despite the data regarding the inferiority of unstructured clinical assessment and the now-pervasive
criticism of it in the literature, mental health professionals continue to employ it, for a number of reasons.
First, as indicated above, most courts do not demand anything different. Second, in their everyday practice,
clinicians view individualized assessment and case-specific decisionmaking as important goals, and that
attitude can extend to the prediction setting. Third, unstructured clinical assessment is not time- or cost-
intensive, and in most cases is not obviously wrong. Finally, this assessment approach is flexible, insofar as it
can be used with a variety of populations in a variety of contexts. Although structured methods are available
for use in some contexts (e.g., discharging patients from forensic hospitals), clinicians daily encounter many
situations for which no validated risk assessment instrument exists or for which special features of the
evaluation make an assessment instrument inapposite.321
“Anamnestic assessment” is a special type of clinical assessment in which the examiner attempts to identify
violence risk factors for a specific examinee, based on a detailed consideration of the examinee’s violence
history. Through clinical interviews with the examinee, other clinical data (e.g., accounts of victims, family
members, and other knowledgeable third parties; review of arrest reports or hospital records that detail violent

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episodes), and perhaps psychological or laboratory testing, the examiner attempts to identify factors that have
distinguished the particular individual’s prior aggressive behavior (which may or may not be related to
violence in general). Analysis of these prior acts may yield insights about personal or situational factors or
person–situation interactions that repeat themselves across violent acts, and thus could help inform judgments
about risk level or strategies for reducing risk. Because the anamnestic approach is a type of clinical assessment
—one in which the examiner ultimately determines what information is sought, relied upon, and synthesized
—it has all the advantages and disadvantages inherent in unstructured clinical assessment. Its potential
advantages include its flexibility and utility with a variety of populations and in varying contexts; its potential
to identify violence risk factors for an individual that might not operate more generally or might not be
identified in large-group studies; and its ability to complement other, structured approaches described in the
following paragraphs.322
“Structured professional judgment” (SPJ), also referred to as “structured clinical assessment,” is like clinical
assessment in that the examiner gathers and synthesizes relevant data and ultimately makes a judgment about
the examinee’s risk for violence. In contrast to unstructured clinical assessment, however, SPJ methods direct
the clinician’s attention to a limited list of items or factors that have established or theorized relationships
with the criterion of interest—in this case, violence. Often SPJ instruments employ some type of “scoring”
system (e.g., 0 = factor absent, 1 = factor possibly present, 2 = factor present), which can be summed to
produce total values that are often used in studies that evaluate SPJ accuracy. Yet when these instruments are
used as intended, total or individual item scores do not dictate a risk level or a risk-based decision. Instead,
scoring simply forces the examiner to consider each item or factor and its potential significance with respect to
violence risk.
The potential value of SPJ for increasing reliability and validity in forensic contexts has been recognized
since the 1960s.323 Having all examiners use the same factors when assessing risk typically leads to greater
interrater reliability. In addition, as later discussion elaborates, SPJ leads to rates of judgment accuracy that are
as good as or better than actuarial judgments.324 In addition, to the degree that they identify dynamic causal
factors, SPJ approaches may be used to develop plans for management and treatment.
In contrast to the foregoing methods, “actuarial assessment” is a method in which “the human judge is
eliminated and conclusions rest solely on empirically established relations between data and the condition or
event of interest.”325 Developers of actuarial risk assessment instruments (ARAIs) for violence typically begin
by identifying samples of violent and nonviolent persons, as well as candidate factors that might distinguish
these two groups. Using statistical methods, developers then identify those factors that best discriminate
between violent and nonviolent subjects, and combine these factors into a formula for use in describing the
violence risk of examinees, typically by way of a probability estimate of future violent behavior. Although
actuarial formulas can include both dynamic variables (e.g., presence of acute symptoms, presence of violent
intent, ongoing substance misuse) and static factors that do not change over time (e.g., number of prior
assaults, sex, history of child abuse), the ARAIs developed to date mainly rely on static factors, largely because
these were the kinds of data accessible to investigators who developed the formulas. A key point is that even
when clinical judgment is required to score or categorize examinees on certain formula items, human
judgment plays no role in evaluating the gathered data or reaching a conclusion about risk. Rather, the ARAI
does all the information processing. Although most ARAIs consist of items that are weighted and added

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together, some use other classification schemes, such as flow charts (described in more detail below).
Actuarial assessment methods have several virtues: They typically enjoy high rates of interrater reliability;
their discrimination properties are easily quantifiable; they appear to work as well as competing approaches;
and they perform better than unstructured clinical assessment. But actuarial assessments also have limitations.
Critics argue that adherence to a strict actuarial approach precludes the examiner from considering important
factors that are known to relate to the behavior of interest, but are not included in the actuarial formula for
some reason (e.g., in cases where information regarding a factor was not available for the sample used to
develop the formula). Similarly, adherence to this approach also precludes consideration of unique factors that
are of obvious significance in a particular case, but are so uncommon that they are not components of the
actuarial formula (e.g., the case of a repeatedly violent offender high in psychopathy who has recently become
a quadriplegic).326 Finally, ARAIs run into practical problems associated with communicating the results to
judges and juries, who have trouble understanding statistics and often suspect they may have been
manipulated; research also shows that laypeople tend to prefer clinical case material and to ignore statistical
information.327
These observations lead naturally into a discussion of “adjusted actuarial assessment,” the final and most
controversial risk assessment approach. This approach advocates joining clinical and actuarial assessment
techniques by having examiners use one or more actuarial measures to provide a specific probability estimate,
and then either (1) “adjust” the estimate by taking into account important factors that appear to be related to
the behavior in question but are not accounted for by the formula; or (2) use the derived estimate as the basis
for, and to anchor, what is ultimately a primarily clinical judgment. Although this approach has intuitive
appeal, proponents of strict actuarial methods argue that once the actuarially derived estimate is “adjusted” in
any way by clinical judgment, the result is nothing more than unstructured clinical assessment, with all its
attendant problems and limitations. Studies show that clinicians often make too many adjustments, with the
result that they do worse than if they had stuck with purely actuarial techniques.328 Quinsey and his
colleagues, whose ARAI—the Violence Risk Appraisal Guide—we discuss later in this chapter, make this
argument:

Research . . . shows that clinicians’ impressions of dangerousness, insight, treatment response, and so on, are, at best, very weakly related to
violent recidivism. Combining actuarial scores with clinical judgments inevitably produces lower accuracy than actuarial scores alone.
Therefore, we recommend that clinical judgment not be blended with actuarial scores, actuarial scores not be used only as components to
clinical judgment, and clinical judgment not be used to decide which patients receive actuarial assessment. We recommend the role of
clinicians in risk appraisal be to compile relevant clinical material, and compute the actuarial scores.329

In contrast, other ARAI developers believe that clinical considerations have their place in risk assessment.
For example, the investigators responsible for the development and updating of the Static-99R, an ARAI
evaluating risk of reoffending among sex offenders, observed that their instrument “does not address all
relevant risk factors for sex offenders.” These authors continue:

Consequently, a prudent evaluator will always consider other external factors, such as dynamic or changeable risk factors, that may influence
risk in either direction. Additional factors in an individual case may also affect risk. An obvious example is where an offender states
intentions to further harm or “get” his victims (higher risk), or an offender may be somewhat restricted from further offending by health
concerns.330

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The Static-99R authors add that while the ARAI score should be left unchanged and reported along with its
empirically verified level of risk, examiners should report “additional factors that were taken into
consideration” in providing their opinion. “In other words, Static-99R is intended as one component of a risk
assessment report. Additional information should be considered external to the scale.”331
The most recent data suggest that forensic clinicians, both in the United States and elsewhere, regard SPJ
and ARAI approaches as equally valid and accurate, but that in their practices they seem to favor SPJ tools
and to use these tools more than ARAIs.332 The reasons include the research supporting the elements that
constitute SPJ tools and their established empirical correlations with violence. But beyond guiding judgments
about an examinee’s relative risk for violence, SPJ measures often include elements that guide risk
management; that is, they direct users’ attention to dynamic factors that affect risk, but also can inform
practical clinical interventions during subsequent treatment.333
The discussion that follows provides information about specific risk assessment techniques, beginning with
some of the best formal risk assessment tools. (Table 9.3 contains a summary of the techniques that we review
in this chapter and a few other measures.) The first section below discusses tools that are useful in evaluating
risk for any criminal activity (most relevant at sentencing); the section that follows reviews tools that evaluate
violent recidivism (most relevant to capital sentencing and commitment); and the subsequent section reviews
tools that help assess sexual offense recidivism (particularly relevant under SVP regimes).

TABLE 9.3. Representative Risk Assessment Tools

Appropriate Peer-reviewed
Tool Instrument type Items Criterion populations Sample items research?

General reoffending

Level of Service Actuarial 54 General Male and female Criminal history, Yes
Inventory— reoffending offenders antisocial
Revised (LSI-R) attitudes,
antisocial
associates,
education,
employment,
family, marital,
leisure,
recreation, and
substance use

Youth Level of SPJ 8 General Male and female Offense history, Yes
Service/Case reoffending adolescent academic history,
Management offenders family and
Inventory 2.0 parenting
(YLS/CMI 2.0) circumstances,
antisocial
attitudes and
orientation, peer
relations

Violence risk

Classification of Actuarial Varies General violence Adult psychiatric Hot temper, past Yes

391
Violence Risk patients threatening
(COVR) behavior, head
injury with loss
of consciousness,
witnessed
domestic
violence as a
child

Early Assessment SPJ 20 Reoffending Boys to age 12 Lack of caregiver Yes

Risk List for continuity,
Boys (EARL- history of
20B) abuse/neglect/tra
uma,
hyperactivity/imp
ulsivity/attention
deficits

Early Assessment SPJ 21 Reoffending Girls to age 12 Antisocial values Yes

Risk List for and conduct,
Girls (EARL- likeability, peer
21G) socialization,
sexual
development,
antisocial
attitudes,
antisocial
behavior

HCR-20V3 SPJ 20 General violence Adult offender Major mental Yes

and psychiatric disorder, past
populations antisocial
behavior,
instability,
substance use,
insight, violence
history,
supervision
response, living
situation

Spousal Assault SPJ 20 Domestic Persons with a Domestic Yes

Risk Assessment violence history of violence history,
(SARA) domestic general violence
violence history, recent
relationship
problems, recent
substance
abuse/dependenc
e

Violence Risk Actuarial 12 Violent Adult offenders Psychopathy, Yes

Appraisal Guide reoffending and forensic early school
(VRAG) patients problems,
violence history,

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 age at index
offense, history
of alcohol
problems

Structured SPJ 30 General violence Youth ages 12– Violence history, Yes
Assessment for 18 years exposure to
Violence Risk in violence in the
Youth (SAVRY) home, peer
delinquency, peer
rejection,
impulsivity/risk
taking, low
empathy/remorse

Sexual violence

Minnesota Sex Actuarial 16 Sexual Incarcerated Number of sex Yes

Offender reoffending male sex offenses, use of
Screening Tool offenders force with sex
—Revised offense,
(MnSOST-R) disciplinary
history while
incarcerated,
history of sex
offender
treatment refusal
or failure

Sex Offender Actuarial 14 Violent sexual Incarcerated School Yes

Risk Appraisal recidivism male sex adjustment,
Guide (SORAG) offenders previous
convictions for
sexual and
violent offenses,
alcohol
problems,
phallometry,
psychopathy,
prior failure on
release

Static-99R Actuarial 10 Sexual Incarcerated Number of prior Yes

reoffending male sex offenses, sex of
offenders victim(s),
relationship to
victim(s),
number of
sentencing
occasions,
conviction for
noncontact sex
offense

Sexual Violence SPJ 20 Sexual violence Sex offenders Presence of Yes

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Risk–20 (SVR-20) paraphilia/sexual
deviation,
personality
disorder, high-
density sex
offenses, multiple
sex offense types,
past nonsexual
violence, negative
attitudes toward
treatment

(2) Risk Assessment Tools (General Recidivism)

Risk factors correlated with general criminal behavior (including all violent and nonviolent offenses) are not
identical to correlates of violent criminal behavior, sexually violent criminal behavior, or other specific
crimes.334 Accordingly, measures or assessment techniques that are appropriate for use in assessing one type of
risk are not always appropriate for another type. We start here with instruments that may be useful in
assessing general criminal recidivism.
One such instrument is the Level of Service Inventory—Revised (LSI-R), one in a family of instruments
developed by Andrews and Bonta, based on their extensive program of research examining correlates of
offending in male and female Canadian populations.335 The Level of Service scales are intended for use by
mental health professionals and correctional personnel (e.g., parole officers) and probably are the most
frequently used risk assessment tools.336 The LSI–R serves as a quantitative survey of offenders’ attributes and
situations that (1) structures clinicians’ assessment of offenders’ risks for violent and nonviolent recidivism, (2)
identifies treatment targets, and (3) quantifies likelihood of criminal recidivism and thus informs
decisionmaking about custody levels. Based on an offender interview and review of collateral information, the
examiner using the LSI-R provides ratings on what are sometimes called the “Big Four” covariates of criminal
behavior (criminal history, antisocial attitudes, antisocial associates, and antisocial personality patterns) and
additional domains of education, employment, family, marital, leisure/recreation, and substance use. In
addition to structuring the clinician’s risk assessment and treatment planning, the LSI-R produces a total
score that permits short-term recidivism estimates (i.e., two years) for both male and female offenders.
Research examining the validity of the measure reports modest to good correlations (r values of .23–.40 in a
2014 meta-analysis, equivalent to AUCs of .63–.73) between LSI-R total scores and various outcome
measures of relevance, including general and violent recidivism, reincarceration, probation/parole violations,
and halfway house failure.337
A second general recidivism assessment tool is the Youth Level of Service/Case Management Inventory 2.0
(YLS/CMI 2.0). This semistructured interview reflects the same theoretical perspective as the LSI-R, but it is
meant to structure professionals’ judgments about risk assessment and treatment planning with delinquent
youth ages 12–18 years. It is based on the risk–needs–responsivity model, which (as discussed earlier in the
chapter) involves assessing level of risk so that higher-risk offenders receive more intensive services; assessing
and targeting a youth’s criminogenic needs during treatment; and taking into account a youth’s personality

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and learning style when implementing cognitive-behavioral interventions in treatment.338 The YLS/CMI 2.0
requires the professional to offer clinical ratings of a youth’s risk and needs factors, with the goal of facilitating
case management and treatment planning. After accessing multiple sources of information that ideally include
interviews with the youth, parents, and knowledgeable third parties (e.g., probation officers, teachers), as well
as educational, juvenile justice, and mental health records, the professional rates the level of risk (low,
moderate, high) for eight primary variables that are related to youthful offending: offense history; family
history and situation; education and employment history and adjustment; peer group and quality of peer
relations; substance use/abuse; leisure and recreation interests; psychopathology and personality factors; and
antisocial attitude and orientation. Studies of the original version of the YLS/CMI show that it has modest to
good predictive abilities for various outcomes such as rearrest and reconviction.339

(3) Risk Assessment Tools (Violence)

As noted above, legal decisionmakers may be concerned about an individual’s propensity for violence in a
variety of civil and criminal contexts. In the past two decades, researchers have responded by developing a
number of risk assessment tools of potential use in these settings.
The most researched SPJ tool for assessing violence risk is the HCR-20, a 20-item measure that focuses
evaluators on Historical, Clinical, and Risk management variables that have empirically supported
relationships to violence.340 Now in its third edition (the HCR-20V3), this instrument is intended for use
with forensic, civil psychiatric, and correctional populations.341 The 20 items are devoted to static historical
variables (10 items), clinical variables (5 items), and risk management factors (5 items). Also available is a
220-page compendium that describes the instrument’s background, ROC analysis, and numerous studies of
current and previous versions of the HCR-20.342 Although items on the HCR-20 are scored 0 (absent), 1
(possibly present), or 2 (present), the scoring profile is meant to structure the clinician’s judgment, not to
produce a recidivism probability. Several studies have evaluated the reliability and validity of the current
version of the HCR-20 in assessing correctional and forensic populations, and have found good reliability and
accuracy (at least equal to those of previous versions).343 What is probably the most rigorous meta-analysis of
risk assessment instruments found a median AUC of .70 for the HCR-20 (interquartile range = .64–.76).344
The Structured Assessment of Violence Risk in Youth (SAVRY) is a SPJ tool designed to aid in appraisals
of violence risk and formulating risk management plans for youth ages 12–18 years.345 The SAVRY is
composed of 24 static and dynamic risk factors (e.g., offense history, substance use) and 6 protective factors
(e.g., strong attachments and bonds, prosocial involvement). Risk items are classified as historical (e.g., history
of violence, exposure to violence in the home), social/contextual (e.g., peer delinquency, peer rejection), or
individual/clinical (e.g., risk taking/impulsivity, lack of empathy/remorse). The examiner rates each risk and
protective item, using information drawn from an interview of the youth and other sources (such as police or
probation reports, mental health records, and social service documents). As is true for most SPJ tools, the
SAVRY provides operational definitions for key risk factors that can be applied across different assessments
while structuring the examiner’s ultimate judgments about risk level and management needs. Accuracy of the
SAVRY is comparable to other risk assessment instruments, with a median AUC in eight high-quality studies
of .71 (interquartile range = .69–.73).346

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 The most researched ARAI to date is the Violence Risk Appraisal Guide (VRAG), a weighted, 12-item
formula originally developed on a 618-member sample of violent male offenders housed in an Ontario-based
maximum security hospital.347 The criterion employed in determining violent recidivism was whether the
offender was charged with, convicted of, or returned to the institution for a violent offense. The 12 VRAG
items, while primarily historical (e.g., suspended or expelled from school, marital history), also include some
dynamic factors (e.g., presence of attitudes supportive of crime, meeting diagnostic criteria for schizophrenia).
An examinee is rated on each item, and the items are then totaled to produce a score that places the examinee
in one of nine risk categories (or “bins”) associated with probabilities (ranging from 0 to 100%) for violent
recidivism over seven- and ten-year periods for people with the same score. A wealth of research has examined
the validity of the VRAG and indicates moderate to high correlations between total VRAG scores and violent
recidivism.348 A rigorous meta-analysis that included ten studies of the VRAG reported a median AUC of .74
for the instrument (interquartile range = .74–.81).349 We note, however, that AUC is a measure of intrinsic
discrimination ability and does not indicate how well the probabilities-associated bins match from one study
to another. Results of several studies have raised questions about whether the specific probabilities of
recidivism reported by the VRAG’s authors are valid in all populations.350
The Classification of Violence Risk (COVR) tool was developed by the MacArthur Violence Risk
Assessment Group, based on its study of over 1,000 psychiatric patients for one year after their return to the
community.351 The study used as thorough a follow-up process as was humanly possible: The researchers
obtained postdischarge data on aggression by using hospital and criminal justice records, interviews with the
patients themselves, and interviews of knowledgeable friends and family. Patients were classified as “violent”
during follow-up if they had engaged in some kind of physical contact with another party that resulted in
injury or had threatened another while holding a weapon.
Unlike most ARAIs that use statistical formulae to stratify risk, the COVR implements an “iterative
classification tree” (ICT) in which (based on input data) the examinee is placed in a succession of categories
(e.g., “recent violence-yes,” “recent violence-no”), with each placement dependent on the preceding
categorization.352 Ultimately the examinee is placed in a risk category associated with probabilities of violence
based on rates from the original sample. Administration of the COVR involves a brief chart review and a brief
computer-guided interview in which the examinee responds to inquiries about his or her personal background
(e.g., “Have you used a knife or fired a gun at anyone?”, “Was your father ever arrested?”) and clinical traits
(e.g., “My temper is quick and hot,” “When I get mad I can easily hit someone”).353 Because of the COVR’s
decision tree structure, not all examinees answer the same items. Reflecting concerns regarding the advantages
and disadvantages of different methods of risk communication, risk data derived from the examinee’s COVR
responses are described in three formats: probabilistic (e.g., “The likelihood that the patient will commit a
violent act toward another person in the next several months is estimated to be between 20 and 32%, with a
best estimate of 26%”); frequency (e.g., “Of every 100 people like the patient, between 20 and 32 are estimated
to commit a violent act toward another person in the next several months, with a best estimate of 26 people”);
and category (e.g., “average risk [corresponding to a risk of 26%/26 of 100]”).354
In contrast to the developers of the VRAG (who believe that clinical adjustment of risk estimates
undermines the accuracy of ARAIs), the COVR developers recommend a two-phase assessment:
administration of the COVR, and then review by the clinician responsible for making the risk assessment.

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The COVR authors explain:

Although clinical review would not revise or “adjust” the actuarial risk score produced by the COVR, and could in principle either improve
or lessen predictive accuracy . . . the application of clinical judgment represents the standard of care for legal purposes, [and] data in addition
to those collected by the COVR may properly impact violence risk assessment. . . . For example, a low-risk patient who makes a convincing
threat of physical harm to another person might be dealt with more cautiously than his or her COVR score would suggest.355

Only a few studies beyond those associated with the COVR’s development have been published. A
validation study conducted by the COVR’s creators used a sample of 157 inpatients released into the
community and followed over the course of 20 weeks; AUCs for this study implied modest predictive
accuracy.356 In small studies from the United Kingdom, the COVR did well in detecting inpatient violence by
forensic patients,357 but did not demonstrate significant discrimination for violence after discharge.358 The
COVR fared well in a study of inpatients in Sweden, where the instrument showed good discrimination
capabilities.359

(4) Risk Assessment Tools (Sexual Offending)

The Static-99R, mentioned earlier in the chapter, is the current version of an instrument (the Static-99)
originally developed by researchers within the Canadian and British correctional systems. It is a 10-item tool
for ranking sex offenders’ comparative risks of sexual recidivism. To do this, the Static-99R directs evaluators
to assemble and score commonly available demographic information and criminal history data—including age
at release, victim characteristics, and numbers of convictions for sex offenses and other crimes—that correlate
with sexual recidivism by adult male sex offenders.360 The Static-99R is the instrument most commonly used
to assess risk of sexual reoffending in the United States.361 One likely reason is that the instrument and
related research materials are publicly available for downloading from a well-maintained website.362
The instrument’s developers state frankly that the Static-99R “has a number of weaknesses,” including its
modest discrimination ability (i.e., AUC ≈ .69–.70) and the fact that it does not include “all the factors that
might be included in a comprehensive risk assessment.”363 The relative risks implied by Static-99R scores
hold up well across populations; that is, within a sample of offenders, a higher Static-99R score implies a
higher likelihood of reoffending.364 Yet the probabilities of recidivism described in previous interpretive tables
for the Static-99R do not apply to all populations,365 and the instrument’s developers recommend that
“evaluators should . . . consider whether it is necessary to report absolute recidivism rates at all . . . It would
also be possible to report an overall recidivism base rate and relative risk parameters,” by saying, for example,
that the local reoffending base rate is x percent, and stating that the examinee’s base “is half/twice/the same as
offenders in the middle of the risk distribution.”366
The Sexual Violence Risk–20 (SVR-20)367 is the second most widely used instrument (after the Static-
99R) for assessing likelihood of sexual reoffending.368 Unlike the Static-99R, the SVR-20 is an SPJ tool
designed to aid in assessing risk by guiding examiners through a comprehensive consideration of relevant
factors, but without prescribing an actuarially derived ultimate risk judgment. Rationally derived from the
authors’ review of the sexual offense literature, the SVR-20 identifies 20 factors thought to be related to sexual
offending (e.g., presence of paraphilia/sexual deviation, density of sexual offending, types of sexual offending,
attitudes toward sexual offending). Compared to the Static-99R, less research has examined the reliability and

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validity of judgments made with the SVR-20, and many of the published studies have involved small samples
(i.e., fewer than 100 individuals).369 What research has been conducted is generally positive, however. An
often-cited 2009 meta-analysis by Hanson and Morton-Bourgon included three heterogeneous studies of the
SVR-20 with effect sizes equivalent to AUCs of .56–.83.370 A 2011 meta-analysis (also reporting on just
three studies) reported AUCs of .71–.83.371

(5) Empirical Correlates of Dangerousness

Many types of factors are associated with violence. The kinds of historical and psychological variables covered
in most ARAIs represent one type; other types include social settings (institutional vs. community, work vs.
neighborhood), current level of psychiatric symptoms, treatment nonadherence, genetic factors,
neurotransmitter levels, and neural circuitry.372 Not all factors are of equal salience, of course, and their
interactions often produce a level of complexity that exceeds their usefulness in making judgments about
violence risk. Often the apparent value of factors that appear in isolation to predict outcomes is diminished
after considering how other factors simultaneously affect violence. For example, a well-designed 2016 study
conducted from Swedish data registries showed that the likelihood of violent reoffending after release from
prison was much lower when antipsychotic medications, psychostimulant medications, and medications to
treat addiction were dispensed to former inmates, suggesting that proper psychopharmacological treatment of
mental disorders might by itself reduce violence risk.373 But as a commentary on this research noted, the same
result might not apply in the United States, where distinctive social factors (higher rates of violence and
incarceration, and unequal distribution of health care and income) might overwhelm the impact of
medication.374
Yet certain risk factors for violence appear repeatedly in rigorous research studies. Although we encourage
mental health professionals to keep abreast of new developments in the violence risk assessment literature, and
to use validated assessment tools as the foundation of risk judgments when they fit the legal setting and the
population at issue, we describe in Table 9.4 some factors that consistently appear in the risk assessment
literature and that can assist with judgments about risk and its management. The factors are organized in
terms of dispositional characteristics (sex, age, and personality characteristics such as antisocial personality
disorder and psychopathy); personal historical factors (adult and juvenile arrest history, age of onset);
contextual factors (weapon and victim availability, social support); and clinical factors (major mental illness
and substance use disorders).

TABLE 9.4. Factors Associated with Violence Recidivism

Dispositional factors

Sex Males are at higher risk than females.

Comments: Males at higher risk constitute a more robust finding in studies focused on expressions of serious violence (e.g.,
felony arrest reports). Some studies using collateral and self-report measures have reported a higher incidence of lesser
violence among women.a

Studies of domestic violence often find that women are more likely to be violent than are men.b

Age Younger age is associated with higher risk.

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 Comments: Greatest risk is late adolescence to early adulthood.

Some studies suggest a drop in aggressive behavior after age 40. This “burnout” phenomenon may not hold for males with
psychopathy.c

Antisocial APD is significantly associated with criminality in adults.

personality
Comments: The presence of APD mediates the association between major psychoses and crime; APD and substance use
disorder
disorders together explain the association between crime and psychoses.d
(APD)

Psychopathy Psychopathy, as measured by the Psychopathy Checklist—Revised (PCL-R), is positively associated with parole failuree and
violence recidivism in correctional/forensic populations.f

Comments: Psychopathy (PCL-R) is related to but distinguishable from APD as defined by the DSMs, although DSM-5
Section III (“emerging measures and models”) has a psychopathy specifier for the APD diagnosis.g Psychopathy also may be
a better predictor of violent recidivism than is APD.h

Personal historical factors

Arrest The single most robust predictor of future violence is a history of violent offending.
history
Some studies suggest that recidivism risk exceeds 50% for persons with more than five prior offenses.i

Conduct CD is associated with adult criminality. Its primary effect is through its association with delinquency and adult disorders
disorder (APD, substance abuse).j
(CD) and
Comments: Childhood history of comorbid problems (CD with attention-deficit/hyperactivity disorder or aggression) is a
delinquency
risk factor for delinquency/adult criminal behavior.k Callous and unemotional traits, measured separately from CD, may be
an important factor underlying delinquency.l

Age of onset Early onset (before age 12 years) is a significant predictor of delinquency careers and adult criminal activity.m

Contextual factors

Weapon Risk is enhanced, particularly for more lethal forms of violence, when weapons are readily available.
availability
Comments: Supporting evidence comes primarily from studies of domestic violence; possible added risk if substance use is
also present.n

Social Social networks may buffer against life stresses, thus aiding in adjustment/coping.
support
Due in part to increased availability, family members may be at increased risk for violent victimization.o

Comments: Risk for violence toward significant others may be enhanced when those persons are involved in setting limitsp or
are perceived by the individual to be threatening or hostile.q

Victim Higher risk for persons with history of violence toward a broad range of victims, or multiple assaults on narrow class of
availability victims who remain available (e.g., significant others).

Clinical factors

Major Having a current diagnosis and acute symptoms of a major mental illness (bipolar disorder, schizophrenia) is associated with
mental violence in the community. Studies suggest a risk multiplier of about six compared to undiagnosed persons. The relationship
illness between depression and violence is less clear.r

Comments: Simply having been diagnosed previously for major mental illness, or having been hospitalized for same, is not an
indicator for increased risk.s The presence of current active symptoms, along with other factors (such as alcohol or drug
abuse, nonadherence to treatment, and poor impulse control), accounts for the relationship between severe mental illness and
violence.t

Specific psychotic symptoms associated with enhanced risk include paranoid ideation and persecutory delusions.u

399
 Substance Association between substance use disorders and violent behavior suggests a substantial impact, compared to the risk level of
use persons without either type of problem.v

a
In the MacArthur Risk Study, incidence of violence during the initial follow-up period was 22.4% in men versus 32.8% in women; Steadman et
al., see note 307, at 309. Lidz et al. reported rates of 42% (males) versus 49% (females); see note 311, at 1010.
b
John Archer, Sex Differences in Aggression between Heterosexual Partners: A Meta-Analytic Review, 126 PSYCHOL. BULL. 651 (2000) (women
slightly more likely than men to use physical aggression; men more likely to inflict injury); Deborah M. Capaldi et al., A Systematic Review of
Risk Factors for Intimate Partner Violence, 3 PARTNER ABUSE 231, 242 (2012) (citing similar findings).
c
See Robert Hare et al., Male Psychopaths and Their Criminal Careers, 56 J. CONSULTING & CLINICAL PSYCHOL. 710 (1988) (age-related
decreases in criminal behavior among psychopaths were accounted for largely by reduction in nonviolent offenses); Timothy J. Harpur & Robert
D. Hare, Assessment of Psychopathy as a Function of Age, 103 J. ABNORMAL PSYCHOL. 604 (1994) (impulsivity and sensation seeking may be
what are influenced by age). But see also Mark E. Olver & Stephen C.P. Wong, Short- and Long-Term Recidivism Prediction of the PCL-R and
the Effects of Age: A 24-Year Follow-Up, 6 PERSONALITY DISORDERS 97 (2015) (age has significant impact on reoffending).
d
Elbogen & Johnson, see note 294.
e
Stephen D. Hart et al., Performance of Male Psychopaths Following Conditional Release from Prison, 56 J. CONSULTING & CLINICAL PSYCHOL.
227 (1988); Ralph C. Serin et al., Predictors of Psychopathy and Release Outcome in a Criminal Population, 2 PSYCHOL. ASSESSMENT: J.
CONSULTING & CLINICAL PSYCHOL. 419 (1990).
f
Anne-Marie R. Leistico et al., A Large-Scale Meta-Analysis Relating the Hare Measures of Psychopathy to Antisocial Conduct, 32 LAW & HUM.
BEHAV. 28, 39 (2008).
g
Robert D. Hare et al., Psychopathy and the DSM-IV Criteria for Antisocial Personality Disorder, 100 J. CONSULTING & CLINICAL PSYCHOL.
391 (1991); AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 765 (5th ed. 2013).
h
Joel T. Andrade, The Inclusion of Antisocial Behavior in the Construct of Psychopathy: A Review of the Research, 13 AGGRESSION & VIOLENT
BEHAV. 328, 333 (2008) (summarizing studies); Rebecca E. Riser & David S. Kosson, Criminal Behavior and Cognitive Processing in Male
Offenders with Antisocial Personality Disorder with and without Comorbid Psychopathy, 4 PERSONALITY DISORDERS 332, 333 (2013)
(summarizing studies).
i
Among individuals released from prison in 2005, the five-year arrest rate for violent offenses was 60.8% for individuals with four or fewer prior
offenses, 75.9% for those with five to nine prior offenses, and 86.5% for those with ten or more prior offenses. MATTHEW R. DUROSE ET AL.,
RECIDIVISM OF PRISONERS RELEASED IN 30 STATES IN 2005: PATTERNS FROM 2005 TO 2010 (NCJ Report No. 244205, Apr. 2014).
j
Ou & Reynolds, see note 381.
k
Jessica J. Asscher et al., The Relationship between Juvenile Psychopathic Traits, Delinquency and (Violent) Recidivism: A Meta-Analysis, 52 J.
CHILD PSYCHOL. & PSYCHIATRY 1134 (2011) (moderate associations between psychopathy and delinquency, general recidivism, and violent
recidivism). Concerning the limited stability of ratings of adolescent psychopathy, see Elizabeth Cauffman et al., Comparing the Stability of
Psychopathy Scores in Adolescents versus Adults: How Often Is “Fledgling Psychopathy” Misdiagnosed?, 22 PSYCHOL. PUB. POL’Y & L. 77 (2016).
l
Paul Frick, Psychopathy and Conduct Problems in Children, 103 J. ABNORMAL PSYCHOL. 700 (1994); Jeff Mathesius et al., Child and
Adolescent Disposition Model: An Examination of the Temperament Factor Structure within Early Childhood, INT’L J. OFFENDER THERAPY &
COMP. CRIMINOLOGY (online publication Oct. 7, 2016) (citing studies), available at
http://journals.sagepub.com/doi/abs/10.1177/0306624X16672931?rss=1.
m
ROLF LOEBER ET AL., FROM JUVENILE DELINQUENCY TO YOUNG ADULT OFFENDING (STUDY GROUP ON THE TRANSITIONS BETWEEN

JUVENILE DELINQUENCY AND ADULT CRIME) 5–6 (2013) (citing studies).

n
The evidence for this association comes primarily from studies of within-home violence. Aaron J. Kivisto, Violence Risk Assessment and
Management in Outpatient Clinical Practice, 72 J. CLINICAL PSYCHOL. 329, 336 (2016) (attacks by people with mental illness on strangers are
too unusual to allow for scientifically based judgments about risk facts such as firearm availability); Jeffrey W. Swanson, Explaining Rare Acts of
Violence: The Limits of Evidence from Population Research, 62 PSYCHIATRIC SERV. 1369 (2011) (violence toward strangers is too rare). The
association between substance use and firearm-related violence often diminishes when studies adjust for psychiatric disorders, especially APD.
Magdalena Cerdá, Editorial: Gun Violence—Risk, Consequences, and Prevention, 183 AM. J. EPIDEMIOLOGY 516 (2016).
o
S.E. Estroff et al., Risk Reconsidered: Targets of Violence in the Social Networks of People with Serious Psychiatric Disorders, 33 SOC.
PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY S95 (1998).
p
Katherine A. Straznickas et al., Violence toward Family Caregivers by Mentally Ill Relatives, 44 HOSP. & COMMUNITY PSYCHIATRY 385, 387
(1993).
q
Estroff & Zimmer, see note 386, at 280.
r
Jeffrey W. Swanson et al., Violence and Psychiatric Disorder in the Community: Evidence from the Epidemiologic Catchment Area Surveys, 41
HOSP. & COMMUNITY PSYCHIATRY 761 (1990); Toshi A. Furukawa, The Relationship between Depression and Violent Crime, 2 LANCET

400
PSYCHIATRY 193, 194 (2015) (evidence for some depression-related enhanced risk).
s
Jeffrey W. Swanson, Mental Disorder, Substance Abuse and Community Violence: An Epidemiological Approach, in VIOLENCE AND MENTAL
DISORDER, see note 309, at 101, 132; Elbogen & Johnson, supra note d (this table).
t
Bruce G. Link et al., The Violent and Illegal Behavior of Mental Patients Reconsidered, 57 AM. SOC. REV. 275–92 (1992); Katrina Witt et al.,
Risk Factors for Violence in Psychosis: Systematic Review and Meta-Regression Analysis of 110 Studies, 8 PLOS ONE e55942 (2013).
u
Coid et al., see note 390.
v
Swanson et al., supra note r (this table); Elbogen & Johnson, supra note d (this table). Substance use disorder mediates the relationship
between major mental disorder and violence risk.

Some of these factors are likely to be relevant to risk assessment only, while others are relevant to both risk
assessment and risk management. For example, factors such as personal history (e.g., history of abuse, number
of violent offenses) are in large part inflexible or unchangeable. Demographic features (e.g., sex and age) are
fixed as well, and certain personality characteristics (e.g., basic personality style, intellectual abilities) may not
be changeable either. These “static” factors may inform the fundamental judgment about baseline level of risk,
but to improve risk management, clinicians focus mainly on clinical, situational, and contextual factors that
can be altered or treated.
Among demographic factors, the literature generally reveals a positive association with criminality for
younger persons and males. Although not as firmly established (and therefore not noted in Table 9.4), lower
socioeconomic status is also sometimes implicated as a predictor and may significantly account for the
association sometimes found between non-European descent and criminality.
As for personality factors, perhaps the single best predictor of violence is psychopathy. As first
conceptualized by Cleckley375 and refined by Hare,376 “psychopathy” is a constellation of affective,
interpersonal, and behavioral characteristics that include egocentricity; impulsivity; irresponsibility; shallow
emotions; lack of empathy, guilt, and remorse; psychopathological lying; manipulativeness; and the persistent
violation of social norms, rules, and expectations. This personality construct is best assessed with the
Psychopathy Checklist—Revised (PCL-R), a clinical assessment instrument yielding ratings on 20 scales that
load on two, three, or four factors.377 Although most conventional psychological tests offer little help to
clinicians undertaking violence risk assessments,378 PCL-R scores are consistently helpful in identifying
persons at greater risk for criminal recidivism and have good interrater reliability (see Table 9.4, footnotes e–
h). In addition to informing judgments about violence recidivism, PCL-R scores may also inform judgments
about the appropriateness of certain treatment programs for individuals being considered for therapeutic
placements.379 Note also that, as indicated in Table 9.4, psychopathy as measured by the PCL-R is
distinguishable from the diagnosis of antisocial personality disorder found in the Diagnostic and Statistical
Manual of Mental Disorders, fifth edition (DSM-5), which is not as useful a predictor.380
For assessing baseline level of risk, historical factors such as adult criminal record and delinquency history
are among the most important data. Several publications describe well the developmental pathways to
delinquency careers and adult violent behavior, including the linkages between childhood disorders such as
conduct disorder and attention-deficit/hyperactivity disorder, parenting style or effectiveness,
school/socialization failures, and affiliation with delinquent peer groups.381 One caveat is that many juvenile
offenders desist by the time they reach their 20s. But young boys who are especially aggressive, and those
juveniles whose offense history begins before the age of 12, years are more likely to offend repeatedly when

401
they reach early adulthood.382
The relationship between violence recidivism and contextual factors has been examined less frequently and
systematically. Yet the changeability of context probably has important implications for risk management, if
not for evaluating baseline risk level.
One area of interest in this regard is the relationship between youthful violence and gang membership.
Across the globe, gang membership increases all types of youthful crime, but especially serious and violent
crimes. The impact on violence is particularly important in countries (like the United States) where access to
firearms is greater. Studies have shown that rates of violent delinquency increased during periods when youth
were members of gangs and decreased after youth left—though in some studies, general offending remained
higher even after subjects left gangs.383 Moreover, gang membership and youth violence share many risk
factors related to peer relationships, family behavior, educational performance, and community influences.384
These findings suggest that getting delinquent gang members to desist from membership might reduce the
likelihood of violence—and might also reduce the adverse impact of gang membership on educational
attainment, adult financial problems, and experiences of violent victimization.385
Although it is generally believed that having a support network is more favorable prognostically than
having none, a comprehensive review by Estroff and colleagues found little pertinent research bearing on the
relationship of social support systems to violence recidivism,386 and research on this matter remains modest,
especially in adult groups.387 Clinicians should continue to evaluate whether social support is potentially
available (and if so, what types). But rather than assuming that available support is beneficial, they should also
be more detailed in their inquiries about prior interactions between the person being evaluated and the
support network [see Table 9.4, note q].
With respect to clinical factors, probably the most controversial issue has been whether a connection exists
between serious mental disorder and violence. Since 1990, accumulated evidence from epidemiological studies
has established a clear but modest statistical link between mental disorder and violence.388 In the studies that
have confirmed this relationship, however, most persons with mental disorder were not violent during the
evaluation period. Persons who suffer from both substance use disorders and major mental illnesses are at
greater risk than those with either type of disorder,389 although much of this association appears attributable
to other risk factors, such as situational substance use, comorbid antisocial personality disorder, or violence
history.390 A recurring and increasingly accepted view is that violence is connected to particular symptoms of
psychosis, especially paranoid ideation and persecutory delusions.391 This finding is consistent with clinical
insights about the potential role of these symptoms.392
In conclusion, other things being equal, research establishes that the factors listed in Table 9.4 are likely to
be associated with poorer outcomes (violence recidivism). Yet without having risk assessment tools that
provide an empirical basis for weighting or combining these factors, examiners are left to their own devices in
deciding how much significance to give each. One reasonable response would be to adopt the approach
recommended by the developers of the COVR and start with an assessment instrument relevant to the
evaluation task that incorporates, and directs an examiner’s attention to, empirically demonstrated risk
factors.393 Having considered these factors, the examiner would then consider other factors not covered by the
instrument that have obvious relationships to risk. Examples of such factors might include recent credible
threats or clearly expressed intentions to do harm, having weapons available, attitudes favoring use of violence,

402
and particular types of symptoms (e.g., paranoid delusions) with clear relationships to risk. The examiner
should also consider any obvious relationships between past precipitants or situations that led the individual to
act violently, and compare these with the circumstances the individual is likely to face in the future period that
is the focus of the assessment. Evaluating such relationships may be enhanced by anamnestic risk appraisal, to
which we now turn.

(6) Individualized (Anamnestic) Risk Appraisal

Earlier in this chapter, we reviewed the empirically demonstrated advantages of making systematized
judgments of risk rather than relying on unstructured clinical assessment. Yet (as we also have discussed),
most developers of risk assessment tools see a role for considering those individually relevant factors that are
not incorporated into risk instruments. Moreover, given their emphasis on static factors and individual
characteristics, risk instruments frequently provide little help in making individual-specific decisions about
management and mitigation of risk. For these kinds of decisions, the clinician cannot rely solely on actuarial
information; he or she must also examine data from the person’s violence history for themes or indicators as to
that individual’s expressions of violence. Although an anamnestic analysis may explore many of the same
factors covered by assessment instruments and listed in Table 9.4, a clinical focus on the individual sometimes
reveals additional violence-related factors not examined by large-group studies.
The anamnestic evaluation involves a careful reconstruction of the examinee’s prior violent actions, much as
one might undertake in an insanity evaluation [see § 8.06]. The most commonly available information about
such events will usually be that provided by the examinee, who may even be willing to disclose prior incidents
that have not led to apprehension by the authorities [for a discussion of whether and when such information
should be reported, see § 4.04(b)]. This information can be augmented by available police reports, transcribed
witness statements, telephone interviews with family members or other persons, and other archival
information.
In cases that involve repeated themes or acts of violence, mental health professionals may find it useful to
systematically record the relevant information, perhaps even coding behavior in each event according to its
apparent motivation, perpetrator–victim dynamics, context/location, and other descriptive variables. Factors
that recur across vignettes may then form the basis for hypotheses about particular themes or triggers of
violence. Identifying these features (e.g., particular mood or other symptom states) can then serve as the
starting point for recommendations regarding management and control.

(7) Formulations Regarding Risk

Although mental health professionals are often asked to testify in conclusory terms about whether or not
individuals are “dangerous” or “represent a risk,” we hope that this chapter’s review of the issues in risk
assessment explain why “yes-or-no” formulations are unhelpful and even misleading. The literature on risk
assessment shows that mental health professionals can do better than chance at ranking relative levels of risk,
but that their binary, “dangerous-or-not” predictions will often be inaccurate. In addition, the ambiguity of
legal definitions of dangerousness and the general concern regarding ultimate-issue testimony make

403
conclusory testimony problematic.
Mental health professionals have several ways of providing well-grounded testimony without overstating
their knowledge. Users of ARAIs such as the VRAG or Static-99R can provide those instruments’ probability
estimates, and probability estimates might also be offered by users of SPJ tools when evidence shows that
particular scores on particular tools have been associated with certain outcome rates in the relevant population.
Of course, such estimates are most relevant to members of specific populations in which the instruments have
been tested, and may not be apposite for populations that do not share key characteristics with the examinee
who is the focus of evaluation and testimony. Testifying experts should make these facts clear to the judge and
jury.
If published probability norms appear inapplicable to the setting or examinee in question, clinicians should
formulate their judgments in relative risk terms with explicit reference to the comparison group(s) (e.g., the
general population, other drug-dependent offenders, other insanity acquittees). Based on a rational integration
of actuarial risk factors and knowledge gained through anamnestic analysis, clinicians can use descriptors such
as “Mr. White’s risk is relatively low [or average, moderately high, etc.] when compared to other insanity
acquittees [or sex offenders, prisoners, etc.] who have undergone psychiatric hospitalization [or
imprisonment] and who share similar background and offense history characteristics.” Although some may
criticize this approach as too gross and lacking precision, we recommend it precisely for these reasons. That is,
given the current state of risk assessment and the lack of universally applicable norms for ARAIs that would
produce more specific estimates, providing such estimates would suggest a level of knowledge that does not
exist and could mislead the factfinder.
Reports or testimony explaining risk assessments should include references to relevant empirical correlates
of violence and descriptive clinical information (attitudes, threats, violence fantasies, symptoms, etc.). With
this information, the court can then decide the appropriate level of supervision (regular vs. intensively
supervised probation, incarceration, hospitalization), taking into account other important sentencing
considerations such as retribution and general deterrence.
When the court is considering a community placement, reports should also make recommendations about
ways to reduce risk. For instance, for individuals whose past violence appears to have been a function of their
serious mental symptoms, recommendations about management will require information about treatment
adherence and treatment effectiveness. If self-control has been compromised in the past by use of alcohol or
drugs, the effectiveness of substance use treatment programs (including pharmacological therapies) and
intensive supervision (e.g., via drug testing and other regular monitoring) should be considered. If placement
in the community is an option, consideration of the individual’s likely living arrangements will be relevant; the
clinician should be prepared with information to help the court decide whether to impose constraints that
limit access to certain individuals (e.g., potential victims and aggressive peers), to items (e.g., removal of
weapons or alcohol from the home), or to particular environments (e.g., bars, the neighborhoods of previous
victims).
Most importantly, recommendations or testimony about relative risk level should reflect the anticipated or
possible level of treatment and supervision or other external controls that will be applied to the offender. Thus
the clinician should think about and be prepared to discuss conditional risks, rather than simply offering static
descriptions of risk level.394 Consistent with our admonition in connection with testimony about treatment

404
[see § 9.07(c)(2)], clinicians should formulate these types of recommendations in the form of “If . . . , then . . .
” statements.
The approach we suggest, which is based on assessments that are informed by a careful reading of the
empirical literature, would ground the expert’s clinical testimony about “dangerousness” in a specialized body
of knowledge that stands outside the ken of laypersons. Some critics might argue that much of the empirical
and clinical analysis described above relies on “face-valid” factors that lay decisionmakers, applying common
sense, could use to reach the same judgments. We disagree. Although the implications of some factors are
evident on their face (e.g., multiple prior convictions suggests heightened risk of recidivism), laypersons will
not be as familiar with or be able to interpret as well other types of factors, such as developmental deficits
(e.g., when and whether child conduct problems are a prelude to adult criminality), historical factors (e.g., age
of onset for delinquency), and clinical factors (e.g., the relative risk associated with psychosis vs. substance use
disorders, and the particular psychotic symptoms associated with increased risk). Such informed testimony can
help prevent the courts from reaching inappropriate conclusions based on stereotypical views of “psychopaths”
or “schizophrenics,” and may thus facilitate more disciplined and humane dispositions by judges and juries.

BIBLIOGRAPHY

D.A. ANDREWS & JAMES BONTA, THE PSYCHOLOGY OF CRIMINAL CONDUCT (6th ed. 2016).
Barefoot v. Estelle, 463 U.S. 880 (1983).
MARY ALICE CONROY & DANIEL C. MURRIE, FORENSIC ASSESSMENT OF VIOLENCE RISK: A GUIDE FOR RISK ASSESSMENT AND RISK
MANAGEMENT (2007).
Phyllis L. Crocker, Concepts of Culpability and Deathworthiness: Differentiating between Guilt and Punishment in Death Penalty Cases, 66
FORDHAM LAW REVIEW 21 (1997).
KEVIN S. DOUGLAS ET AL., HCR-20 VIOLENCE RISK ASSESSMENT SCHEME: OVERVIEW AND ANNOTATED BIBLIOGRAPHY (CURRENT UP TO
JANUARY 1, 2014), available at http://hcr-20.com/hcr/wp-content/uploads/2013/03/HCR-20-Annotated-Bibliography-Version-12-
January-2014.pdf.
Seena Fazel, Jay P. Singh & Martin Grann, Use of Risk Assessment Instruments to Predict Violence and Antisocial Behaviour in 73 Samples
Involving 24,827 People: Systematic Review and Meta-Analysis, 345 BRIT. MED. J. e4692 (2012).
HANDBOOK OF VIOLENCE RISK ASSESSMENT (Kevin Douglas & Randy K. Otto eds., 2d ed. forthcoming).
HANDBOOK ON PSYCHOPATHY AND LAW (Kent A. Kiehl & Walter P. Sinnott Armstrong eds., 2013).
GRANT T. HARRIS ET AL., VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK (3d ed. 2015).
KIRK HEILBRUN, EVALUATION OF RISK FOR VIOLENCE IN ADULTS (2009).
Kansas v. Hendricks, 521 U.S. 346 (1997).
John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients, 92 VIRGINIA LAW REVIEW 391
(2006).
JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR STUDY OF MENTAL DISORDER AND VIOLENCE (2001).
AMY PHENIX ET AL., STATIC-99R CODING RULES REVISED—2016 (2016).
PROTECTING SOCIETY FROM SEXUALLY DANGEROUS OFFENDERS: LAW, JUSTICE AND THERAPY (John Q. LaFond & Bruce Winick eds.,
2006).
THE SEXUAL PREDATOR: LEGAL ISSUES, CLINICAL ISSUES, SPECIAL SITUATIONS (Anita Schlank ed., 2001).
Christopher Slobogin, Dangerousness and Expertise Redux, 56 EMORY LAW JOURNAL 275 (2006).
CHRISTOPHER SLOBOGIN, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE WITH MENTAL DISABILITY OF LIFE AND LIBERTY chs. 3, 4, & 5
(2006) (re: capital punishment and sentencing).
United States v. Grayson, 438 U.S. 586 (1978).
VIOLENCE IN PSYCHIATRY (Katherine D. Warburton & Stephen M. Stahl eds., 2016).

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PART III

NONCRIMINAL ADJUDICATION

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CHAPTER 10

Civil Commitment

10.01. INTRODUCTION

The term “civil commitment” refers to the state-sanctioned involuntary hospitalization of individuals with
mental disorders who require treatment, care, or incapacitation because of self-harming or dangerous
tendencies. Like the criminal justice process, the civil commitment process permits confinement or mandated
community intervention because of behavior deemed unacceptable to the community. However, the two
systems differ in at least four ways: (1) the jurisprudential basis for the state’s intervention, (2) the definition
of behavior that may trigger that intervention, (3) the process by which the state accomplishes intervention,
and (4) the duration of the intervention.
The jurisprudential basis of criminal law is the “police power,” which authorizes the state to protect the
community and to “ensure domestic tranquility.”1 Although the criminal justice system may seek to
rehabilitate offenders, it primarily serves other purposes, such as retribution and deterrence [see § 9.01]. In
contrast, civil commitment has traditionally been justified under the state’s parens patriae authority, which has
long been described as the authority to act as the “general guardian” of children and people with mental
disabilities,2 and generally focuses on the needs of the individual, not of society. Today, because of legal
developments in the 1960s and 1970s that made danger to others an explicit criterion for commitment, the
jurisprudential basis for commitment is a mixture of the parens patriae and police powers. But this mixture
still emphasizes treatment rather than punishment, and as the discussion below indicates, a growing number
of jurisdictions have made an individual’s need for treatment an important, independent basis for civil
commitment.
With respect to triggering conduct, while the same behavior (e.g., an assault) may precipitate intervention
in either system, the specificity with which the law describes that behavior differs. In the criminal justice
system, an act is not criminal unless the legislature has specifically defined it as such, in enough detail that an
individual can fairly be said to have sufficient “notice” that the behavior is outlawed by society.3 With civil
commitment, however, the terms describing the grounds for intervention—“mental disorder,” “need for
treatment,” “dangerousness”—elude precise definition. Furthermore, criminal punishment is permissible only
for conduct that has already occurred, but commitment is designed to prevent a future occurrence. Thus it
would be difficult, and may in any event be counterproductive, to specify the types of behavior that may lead
to commitment with the degree of detail required by the criminal law.
The process due in the two regimes is also different. Because criminal prosecution may result in
imprisonment, the criminal justice process affords a panoply of procedural protections, including the rights to
counsel, to cross-examination, and to an open hearing. Most important, from a symbolic standpoint at least,
the state bears the burden of proving its case “beyond a reasonable doubt.” As the United States Supreme

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Court noted at the height of litigation over the constitutionality of state civil commitment laws, use of this
highest standard of proof “manifests our concern that the risk of error to the individual must be minimized
even at the risk that some who are guilty might go free.”4 In contrast, the civil commitment process, though
much more “legalized” today than it was in the 1960s, is still procedurally lax [see § 10.05(c)] and demands
proof only by the lesser standard of “clear and convincing evidence,”5 suggesting that society may not be as
troubled by an unjustified civil commitment as it is by false conviction.
Finally, the duration of the intervention in the criminal system is based on different criteria than in the civil
commitment system. The length of a criminal sentence is fixed legislatively, guided by retributive notions, and
modified to some degree by concerns about incapacitation, deterrence, and rehabilitation. Convicted offenders
may not know precisely when they will be released, but the maximum length of their sentence is generally
established by law and may not be altered.6 On the other hand, most jurisdictions impose no limits on the
duration of hospitalization under civil commitment, provided that the individual continues to meet the
statutory basis for commitment. The length of each discrete commitment is usually limited (e.g., an individual
may be committed for no longer than six months without additional judicial review), but neither the
legislature nor any other authority poses limits on the number of recommitments, and hence on the total
length of time the individual may spend hospitalized.
Because of these differences, the criminal system has been called an example of the “sanction model” of
state intervention, and the civil commitment process an example of the “control model.”7 How civil
commitment controls rather than punishes behavior was spelled out in Alan Stone’s summary of the four
social purposes of commitment:8 (1) By hospitalizing people with mental disorders, it provides care and
treatment for those requiring it; (2) by removing individuals to a protective environment, it prevents allegedly
irresponsible people from harming themselves; (3) by removing individuals from the community, it protects
society from their anticipated dangerous acts; and (4) by placing individuals in an environment that provides
for their basic needs in a setting isolated from the general community, it relieves society and the family from
accommodating those who are bothersome.
This enumeration suggests the conflicted nature of the control model. Commitment facilitates the
provision of treatment, but it also has protective functions generally associated with the criminal law.
Moreover, it can potentially serve a political function by making possible the removal from society of those
considered nuisances or troublesome. Thus, while the need for a criminal justice system is generally accepted,
some commentators contest the very legitimacy of civil commitment. These critics, most prominently Szasz9
and Morse,10 have questioned whether the state should ever be permitted to confine an individual
involuntarily except through the criminal justice model.
Partly driven by these types of concerns, and influenced by the broader civil rights movement of the time,
public interest lawyers brought a series of lawsuits beginning in the early 1970s designed to change (if not
abolish) civil commitment. The suits were of three types: challenges to the substantive and procedural criteria
of state commitment laws;11 suits regarding institutional conditions (e.g., cases involving the “right to
treatment” and the “least restrictive alternative”);12 and claims about how treatment was administered (e.g.,
cases asserting a right to refuse treatment).13 Although this litigation did not erase the differences between
commitment and the criminal system, it did have a significant impact on the law of commitment.
After providing a brief history of commitment, the legal segment of this chapter describes the first type of

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litigation and the more recent trends that have diminished some of its accomplishments. Forensic examiners
should understand this legal history of civil commitment because it still shapes commitment law today, as well
as other policies relevant to mental health and the law. The second—institutional—type of litigation is briefly
discussed in this section as well (while § 11.03(b) examines the right to refuse treatment). The chapter then
briefly examines empirical research on the effects of this civil rights litigation, most of which has concluded
that changes in the law have had negligible effects on the civil commitment process, but have had some
impact on conditions in state psychiatric hospitals. We also summarize research suggesting that community or
outpatient treatment is the best option in many cases. The chapter then discusses the proper role for attorneys
and mental health professionals in the commitment process, in light of this empirical background. We argue,
in contrast to the position taken by proponents of mental health courts [see § 2.04(e)], that attorneys in civil
commitment proceedings should generally assume an adversarial stance. We also provide relatively detailed
recommendations to clinicians concerning the substantive and procedural issues that arise in commitment
evaluations. Finally, we briefly describe variations in the commitment law that governs four specific
populations: insanity acquittees, persons charged with criminal offenses, persons with intellectual disabilities,
and persons with substance use disorders.

10.02. HISTORY OF COMMITMENT LAW

(a) From Ancient Times to the 1970s

Ancient civilizations dealt with people with mental disorders by familiar-sounding methods. According to
Brakel and Rock, Greek philosophers recommended that people with mental disabilities be cared for in a
comfortable, sanitary, well-lighted place.14 The Romans appointed a “curator” (guardian) to safeguard the
property of a mentally disabled person, and debated the legal effect of decisions made by the ward during lucid
moments.15
During the Middle Ages, medical definitions of mental disorder were supplanted by theories of possession
by demons, and exorcism and forms of torture became primary antidotes.16 Nonetheless, the only significant
change in the law’s approach to mental disorder was a more refined effort to differentiate between people with
intellectual disabilities and people who had mental illnesses. In England, the De Praerogativa Regis (literally,
the “Prerogative of the King”) was enacted between 1255 and 1290. It divided people with mental disabilities
into two classes, “idiots” and “lunatics.”17 The King took custody of the lands of an “idiot”—defined as a
person who “hath no understanding from his nativity”—and could retain any profits from the land.18 In
contrast, the King merely served as guardian of the lands of a “lunatic,” defined as “a person who hath had
understanding, but hath lost the use of his reason”; any profits from such guardianships were not retained by
the Crown, but were applied to the maintenance of the disordered persons and their households.19 A
procedure eventually developed whereby a jury determined whether an individual was an idiot or a lunatic.
While the former were often confined in public houses, the latter were usually committed to the care of
friends or relatives, who received an allowance for the cost of care. Management of such a person’s estate was
the responsibility of the nearest heir or relative.20
In colonial America, indigent people with mental disorders often formed groups that wandered the
countryside.21 Only occasionally did a community arrange for the sustenance of these individuals, utilizing a

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guardian or custodian. Typically, people with mental disabilities were the subject of ridicule, harassment, and
in some cases whipping—a response that made sense in a society that equated a failure to work with
immorality.22
The first American hospital for the exclusive care of people with mental disorders was not established until
1773, in Williamsburg, Virginia; the second came in 1824 in Lexington, Kentucky. These “asylums”
developed their own significant problems as their populations grew. Initially designed as a means of
incarcerating violent people with mental disorders,23 they gradually became warehouses for other types of
individuals, many of whom were confined with few or no procedural safeguards.24 For instance, an 1842 New
York statute required the confinement of all at-large “lunatics,” not just those who were dangerous, and
commissioned “assessors” to search for such people; if two assessors agreed, individuals could be committed
for a minimum of six months.25 In the latter half of the 19th century, reform efforts led by individuals who
had been confined on flimsy authority26 and by those concerned with the lack of adequate facilities for
treating mental disabilities27 stimulated modest changes in commitment laws, some reformation of existing
facilities, and the construction of new hospitals. But the movement toward a more legalized commitment
process was relatively short-lived. During the first two-thirds of the 20th century, most changes in civil
commitment law made commitment easier rather than more difficult, in large part due to medical advances
that increased optimism about treatment efficacy.
Thus, by 1970, 31 states provided for hospitalization based simply on the certification of one or more
physicians that the individual suffered from mental illness and needed treatment.28 Even in states in which
judges were the principal decisionmakers, courts routinely deferred to medical opinion. For example, an
American Bar Foundation study concluded:

The judicial commitment procedure thus amounts to administrative monitoring, often cursory, or a medically oriented process upon which
jural apparatus has been grafted . . . the court becomes essentially ministerial. . . . The medical treatment questions are determined by
medical testimony from examiners whose opinions are rarely at variance and are rarely disputed.29

Nonetheless, beginning in the late 1950s, the numbers of persons in psychiatric hospitals dropped
drastically. Between 1955 and 1975, the population of those confined in public institutions due to mental
illness dropped from 560,000 to fewer than 200,000, a 65% decrease.30 This trend has continued. In the early
2010s, the United States had only 45,000 psychiatric beds in the public sector.31 The percentage of state
mental health funding that went to state hospitals declined from 63% in 1981 to 23% in 2012.32 While the
annual number of hospitalizations is greater than one million,33 the average length of stay is usually quite
short.34
Several events account for these changes.35 First, the introduction of effective antipsychotic medications in
the mid-1950s allowed the stabilization and return to the community of thousands of severely ill individuals.36
Second, in 1963, President Kennedy called for the development of community services for people with mental
disability, and the subsequent passage of what became known as the Community Mental Health Centers Act
promised the development of a capacity to treat individuals on an outpatient basis.37 Third, in the 1970s
Congress enacted changes in the Medicare, Medicaid, and Social Security laws, which created a financial basis
for providing psychiatric care in settings other than hospitals, such as nursing homes or in the community.
Fourth, managed care in general medical practice shortened all kinds of hospital stays,38 a development that

411
influenced perceptions of the need for care of persons who were involuntarily committed. Managed care
incentives also made it more likely that when hospitalizations did occur, they took place in community
settings or local general hospitals.39 Finally, beginning in the early 1970s, the legal profession began
examining the institution of commitment in earnest—a subject to which we now turn.

(b) The Legal Reform Movement

As noted earlier, the parens patriae power, rooted in English law, enabled the King to act as “general guardian
of incapacitated classes, including infants and the mentally disordered,” whereas the state’s police power
authorized the state to act as protector of the community through enactment of laws for the protection of
public health, safety, welfare, and morals.40 Until the 1970s, most courts viewed civil commitment as an
exercise of parens patriae power. For example, a 1960 Iowa Supreme Court decision characterized
commitment as fundamentally and acceptably paternalistic in nature:

It must be kept in mind that appellant is not charged with a crime and is not so incarcerated. He is being restrained of his liberty in that he is
not free to come and go at will, but such restraint is not in the way of punishment but for his own protection and welfare as well as for the
benefit of society.41 (Emphasis added)

This perspective contemplated a legal process decidedly less formal than that found in criminal trials. As
Wexler explained, under the traditional view,

[w]here the state’s aim is not to punish but to assist by providing therapy, there is no need for an adversary process because all parties have
the best interest of the deviant at heart. And, the argument continues, the criminal law safeguards have no place in a therapeutic proceeding,
for they serve only to “criminalize” the process and further stigmatize the subject, and they are simply unnecessary impediments to achieving
the central goal, which is to help the deviant actor.42

The early 1970s saw multiple challenges to this view, representing the juxtaposition of three related strands
of thought. The first questioned whether commitment was or should be a solely medical decision; the second
questioned whether the consequences of commitment were in fact therapeutic or even humane; and the third
asserted that the criteria for commitment and the commitment process were inherently flawed. Underlying
these challenges was the recognition that civil commitment resulted in a deprivation of civil rights at least as
serious as that faced by a convicted criminal.

(1) Challenges to the Medical Model

Civil commitment is premised on a belief that “mental illnesses” are definable and potentially treatable
medical disorders. Challenges to this view, and to the credibility of the psychiatric profession generally, were
critical inspirations to legal efforts aimed at reforming civil commitment. Reformers often drew inspiration
from the work of Thomas Szasz, a psychiatrist43 who characterized “mental illness” as a label that the state
used to legitimize confinement of individuals who were unacceptable to the majority of citizens. Scholars and
researchers questioned the validity and reliability of psychiatric diagnosis,44 and a consensus developed that
psychiatrists could not predict dangerous behavior any better than a layperson.45 Although the accuracy of
both diagnosis and risk assessment has improved significantly over the past few decades, the state of the art in

412
both areas was relatively primitive when these challenges were voiced in the 1960s and 1970s. Thus a plausible
argument could be made that commitment based on these assessments was unjustified.
As a result, American courts fundamentally redefined the values at stake in commitment. Most
dramatically, the United States Supreme Court itself bolstered the reform movement with its 1972 decision in
Humphrey v. Cady, which countered a century of judicial deference to medical opinion by declaring that
commitment involved a “massive curtailment of liberty.”46 In the same term, in Jackson v. Indiana,47 the
Court seemed to invite legal challenges to commitment laws, commenting that given the number of persons
affected by commitment, “it is perhaps remarkable that the substantive constitutional limitations on this
power have not been more frequently litigated.”48
It is not clear that the Supreme Court meant to signal a sea change in commitment law with these
comments.49 But the lower federal courts embraced the aforementioned challenges to the credibility of
psychiatric decisionmaking. In the leading lower-court decision, Lessard v. Schmidt, the court favorably
quoted a law review article that asserted:

Obviously, the definition of mental illness is left largely to the user and is dependent upon the norms of adjustment that he employs. Usually
the use of the phrase “mental illness” effectively masks the actual norms being applied. And, because of the unavoidably ambiguous
generalities in which the American Psychiatric Association describes its diagnostic categories, the diagnostician has the ability to shoehorn
into the mentally diseased class almost any person he wishes, for whatever reason, to put there.50

Another court, expressing concern over the broad latitude given psychiatrists by statutes that used vaguely
defined concepts of mental illness as a basis for commitment, asserted that the courts were “blindly relying on
the conclusion drawn by the examining psychiatrist.”51 Creation of stricter statutory terms was thought
necessary to avoid commitment decisions that depended merely “upon the examining psychiatrist’s personal
conception of normal social behavior.”52

(2) Challenges to the Consequences of Commitment

While challenges to the legal criteria for commitment sought to narrow the universe of people subject to
commitment laws and to dilute the importance of medical decisionmaking, a second prong of the reform
movement challenged the consequences of commitment. This litigation focused both on the deficiencies of
the physical conditions in state hospitals and on the loss of collateral civil rights that often ensued as a result of
commitment. With respect to the first issue, one group recapitulated the argument as follows:

The loss of physical freedom resulting from civil commitment is, for all practical purposes, little different from that which results from a
prison sentence. Depending upon the quality of the hospital, a person committed may be subject to overcrowding, unsanitary conditions,
poor nutrition and even to brutality at the hands of attendants or other hospital residents. Commitment also infringes grossly upon privacy,
and committed patients may be subjected to compulsory medication, electroconvulsive therapy and other potentially hazardous and intrusive
procedures.53

Even leading psychiatrists confirmed that “the megainstitutions presided over by the mental health professions
are an acknowledged disaster.”54 The result was “right-to-treatment” litigation, epitomized by the seminal
case of Wyatt v. Stickney,55 which ordered sweeping reforms in Alabama’s mental health facilities. This type
of lawsuit, often the result of joint efforts by lawyers and mental health professionals, adopted the view that
the state could not be assumed to be acting benevolently when committing an individual.56

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 Critics also pointed to the ancillary consequences of commitment. The most significant was the stigma
attaching to an individual labeled “mentally ill” and committed to an institution. The phrase “mental
illness”—like its predecessors, such as “lunacy,” “insanity,” and “pauper lunatic”—was said to carry with it
notions of “alienation, [and] banishment from society.”57 The conclusion that commitment stigmatized its
subjects fueled the argument that the act of diagnosis itself was an inherently destructive act.58 A second
collateral consequence of commitment was an increased risk of institutional dependency, which undercut the
individual’s ability to deal with the world outside the institution.59 Finally, commitment often resulted in the
loss of important civil rights, including the right to enter into a contract, the right to vote, the right to marry
and to bear children, the right to obtain a driver’s license, and the right to serve on juries.
These arguments, accompanied by depictions of conditions in state psychiatric hospitals, elicited a
sympathetic judicial response. The West Virginia Supreme Court of Appeals, considering a challenge to that
state’s commitment laws, found that “in determining whether there is any justification under the doctrine of
parens patriae for deviation from established due process standards, it is appropriate for this court to consider
that the State of West Virginia offers to those unfortunates who are incarcerated in mental institutions
Dickensian squalor of unconscionable magnitudes.”60 The federal court that decided Lessard v. Schmidt,61
after noting the low number of physicians available in Wisconsin’s public mental health facilities, observed
that “perhaps the most serious possible effect of a decision to commit an individual lies in the statistics which
indicate that an individual committed to a mental institution has a much greater chance of dying than if he
were left at large.”62 The court concluded:

It is obvious that the commitment adjudication carries with it an enormous and devastating impact on an individual’s civil rights. In some
respects, such as the limitation on holding a driver’s license, the civil deprivations which follow civil commitment are more serious than the
deprivations which accompany a criminal conviction.63

The conclusion that commitment was largely countertherapeutic for the individual shook the parens
patriae rationale to the core. The federal Court of Appeals for the District of Columbia Circuit held that
“without some form of treatment, the state justification for acting as parens patriae becomes a nullity,”64 and
the West Virginia Supreme Court concluded that “the ancient doctrine of parens patriae is in full retreat on
all fronts except in those very narrow areas where the state can demonstrate, as a matter of fact, that its care
and custody is superior to any available alternative.”65

(3) Challenges to the Commitment Process and Criteria

Those hoping to abolish civil commitment relied on the arguments just canvassed: that “mental illness” was an
ill-defined term easily manipulated to segregate the socially undesirable, and that confinement to a state
hospital was more likely to be detrimental than beneficial. On the realistic assumption that the commitment
system would continue to exist, however, reformers also advocated for replacing informal commitment
procedures with a formal process designed to minimize error in decisionmaking, and with new criteria
designed to narrow the use of civil commitment.66 The overarching constitutional claim was that government
should not deprive individuals of liberty without affording them significantly more due process of law than
traditionally had been available.

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 On the procedural front, plaintiffs turned to the criminal justice model—with its guarantees of rights to
counsel, to confrontation of one’s “accusers,” and to notice of the charge—because it represented the ultimate
use and refinement of the constitutional “due process” model of decisionmaking. The Supreme Court
provided impetus for this approach with its 1967 decision In re Gault,67 which imposed the adult criminal
model on a juvenile court system that until that time had been grounded on a therapeutic, parens patriae
principle similar to the purported rationale for civil commitment. In doing so, the Court explained that
juveniles confined in deficient facilities after informal proceedings received the “the worst of both worlds.”68
To the critics of commitment as it existed in the 1960s, those sent to public mental health facilities based
on little more than a doctor’s order were in the same situation. These critics argued that the criminal
procedure approach would improve the accuracy of commitment decisions and the basic nature of the inquiry
conducted at commitment. Dershowitz, for example, contended that if civil commitment was conceptualized
as primarily a medical procedure, medical control of the inquiry was inevitable: The pertinent questions would
be posed in medical terms (e.g., “Does the individual needs ‘treatment’ ”?), and assumptions about the validity
and reliability of medical decisionmaking and the therapeutic intent underlying the state’s intervention would
go unchallenged.69 If losing liberty was seen as the chief consequence of commitment, however, courts would
become the proper decisionmakers, and the inquiry necessarily would involve more formalized scrutiny of the
state’s interests in restricting the individual’s liberty.
Critics also argued that the Constitution required changes in the substantive criteria for commitment.
Once courts adopted the assumption that clinical decisionmaking was inherently flawed because of its inexact
nature and because of the vague criteria for commitment, something more than clinical opinion on treatability
was required before commitment could occur. Again borrowing from the criminal law, advocates asserted that
the individual must commit an “overt act” evidencing danger—the equivalent of the actus reus in the criminal
law [see § 8.03(c)]—before commitment could occur.70 More fundamentally, simply having a mental illness
and a need for treatment would no longer suffice as grounds for committing an individual. Again analogizing
to criminal law, plaintiffs argued that the state’s parens patriae power either should be eliminated entirely or
should be strictly defined to exclude nonsuicidal behavior.
The judiciary accepted many of these arguments. The courts ordered state legislatures to amend civil
commitment statutes to require formal legal procedures at commitment hearings and to develop more specific
commitment criteria.71 The resulting statutes, largely products of the 1970s, are discussed later in this chapter
[see § 10.03]. But first, to complete the historical picture, we trace the other legal developments that emerged
in the late 1970s. These developments were important because they appeared to signal a retreat from the
reform movement’s efforts to equate civil commitment with the criminal model, and they ultimately triggered
a new generation of statutes.

(c) Supreme Court Retrenchment

As the 1970s drew to a close, lower courts had largely repudiated the notion that commitment decisions
should be based solely on whether psychiatrists believed treatment might provide beneficial treatment or care.
But by the end of that decade the United States Supreme Court, primarily through the opinions of then Chief
Justice Burger, had signaled that a less “legalistic” approach to civil commitment was constitutionally

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permissible. In a series of cases, the Court reasserted the legitimacy of the state’s parens patriae authority and,
more importantly, began rehabilitating medical judgment as a constitutionally acceptable basis for decisions.
In doing so, the Court did not retreat from its earlier statement that commitment involved a “massive
curtailment of liberty.” For instance, in O’Connor v. Donaldson,72 involving the lengthy coerced confinement
of an individual who had repeatedly sought his freedom, the Court defined the issue as a “single, relatively
simple, but nonetheless important question concerning every man’s constitutional right to liberty,”73 and went
on to rule that “the State cannot constitutionally confine without more a nondangerous individual who is
capable of surviving safely in freedom by himself or with the help of willing and responsible family members
or friends.”74 Although this holding is ambiguous and has been much debated,75 it did at least emphasize the
Court’s belief that the civil commitment process was subject to constitutional principles. Yet the majority
opinion in Donaldson was studiously vague with respect to the limitations imposed by constitutional precepts
and did not endorse explicitly any of the libertarian reforms adopted by the lower courts.
Furthermore, in a much less ambiguously worded concurring opinion in Donaldson, Chief Justice Burger
offered a skeptical view of these reforms. While acknowledging that involuntary commitment constituted a
deprivation of liberty that the state could not accomplish without due process of law,76 he rejected the
contention, accepted by the lower court in Donaldson,77 that the state could confine those who were not
physically dangerous only if it also provided treatment for them. Instead, he asserted, “custodial confinement”
of those simply in need of care was a long-recognized and legitimate purpose of commitment.78 He
concluded:

[T]he idea that states may not confine the mentally ill except for the purpose of providing them with treatment is of very recent origin, and
there is no historical basis for imposing such a limitation on state power. . . . [In addition to the police power,] the states are vested with the
historic parens patriae power. . . . The classic example of this role is when a state undertakes to act as “the general guardian of all infants,
idiots, and lunatics.”79

The Chief Justice wrote for a unanimous Court in its next major decision on civil commitment, Addington
v. Texas,80 which concluded that the Constitution permitted use of a “clear and convincing” standard of proof
at a commitment hearing—a level of certainty falling between the “beyond a reasonable doubt” standard the
Court had required in juvenile delinquency and in criminal cases,81 and the “preponderance of the evidence”
standard typically used in civil proceedings [see § 2.04(b)]. In so holding, the Supreme Court moved some
distance from lower courts’ pronouncements about the nature of involuntary commitment. While
acknowledging that commitment involved a constitutionally significant loss of liberty, and noting that
“stigma” could have a “very significant impact on the individual,”82 the Court reiterated that the state had
authority to commit both under its police power and under its parens patriae power. The Court also
characterized the exercise of the latter power in decidedly less negative terms than had many lower courts,
stating explicitly that commitment and the criminal process differed: “In civil commitment state power is not
exercised in a punitive sense. Unlike the delinquency proceeding . . . a civil commitment proceeding can in no
sense be equated to a criminal prosecution.”83 The opinion also acknowledged the key role of mental health
professionals in the commitment process, saying that “whether the individual is mentally ill and dangerous to
himself or others and is in need of confined therapy turns on the meaning of the facts which must be
interpreted by expert psychiatrists and psychologists”84 (emphasis added). As indicated earlier, many other

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courts had assumed that it was for the judiciary to draw the necessary conclusions from the facts; Addington
intimated that a majority of the Court did not accept that view, and had in fact moved some distance from the
earlier Supreme Court ruling in Humphrey v. Cady characterizing civil commitment as a “massive curtailment
of liberty.”
The Addington opinion did emphasize the “lack of certainty and fallibility of psychiatric diagnosis,”85 but it
did so only to support its rejection of the “beyond a reasonable doubt” standard. It stated that because
psychiatric diagnoses were imprecise, the state could not meet the burden imposed by the criminal standard,
and therefore need meet only the less stringent “clear and convincing evidence” test. Otherwise, however,
Chief Justice Burger did not question the preeminence of clinical expertise.
In fact, as he soon demonstrated, the Chief Justice could find significant rigor in clinical decisionmaking
when it served the jurisprudence he was attempting to develop in the field of mental disability law. Within a
year the Court, in another decision authored by Burger, took its most dramatic step toward affirmation of
medical judgment in commitment. Parham v. J.R.86 involved a challenge to Georgia’s voluntary commitment
statute for children under the age of 18. The statute permitted a facility superintendent to admit a child for
observation and diagnosis upon receipt of an application for hospitalization signed by a parent or guardian,
and if such observation revealed that the child suffered from mental illness and was suitable for treatment in
the hospital, to continue hospitalization “for such period and under such conditions as may be authorized by
law.”87 This statutory scheme had few of the elements that lower courts had found necessary to satisfy due
process in civil commitment proceedings. It depended wholly on the judgment of the admitting parent or
guardian (the latter including a state agency acting as custodian) and the facility’s medical staff. No judge was
involved, no attorney was provided for the child, and no requirement of a finding of “dangerousness” was
required. The lower federal court had found the statute unconstitutional because it failed to protect children’s
due process rights.88
Nonetheless, the Supreme Court reinstated the statutory scheme. The Court began by stating that in
determining whether the admission procedures were constitutional, it had to consider three issues: the minor’s
interest in not being committed (which it considered “inextricably linked to the parents’ interest in and
obligation for the welfare and health of the child”); the state’s interest in the procedures it had adopted for the
commitment and treatment of children; and the need for protection against arbitrary commitment decisions.89
In each of these three areas, the Court minimized or rejected outright assumptions that had informed lower-
court rulings dealing with commitment.
The Court agreed that minors had a substantial and constitutionally protected liberty interest in not being
confined unnecessarily. However, it rejected the notion that significant “stigma” resulted from psychiatric
hospitalization. According to the Court, the state, acting through its voluntary procedures, “does not ‘label’
the child; it provides a diagnosis and treatment that medical specialists conclude the child requires.”90 It also
concluded that the state had a “genuine interest” in avoiding “time-consuming procedural minuets”; not only
did Georgia’s statutory scheme give staff more time to treat patients, but “the parens patriae interest in
helping parents care for the mental health of their children” would be disrupted by an admission process that
was “too onerous, too embarrassing, or too contentious.”91 Finally, the Court rejected the argument that
potential parental abuse of the commitment process required that a formal adversary hearing take place before
commitment. It concluded that the affinity of interest between parent and child, long recognized by the law,92

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combined with the superintendent’s review authority, provided sufficient protection against such abuse.
Other courts had depicted commitment as a stigmatizing, negative experience very different from
nonpsychiatric hospitalizations. But in the eyes of the Chief Justice, the decision to hospitalize a child was like
any “tonsillectomy, appendectomy, or other medical procedure” that a parent might authorize.93 Other courts
viewed an adversary proceeding as a necessary safeguard against inappropriate commitments; the Chief Justice
concluded that at least when commitment was initiated by a parent or the state acting as guardian, a formal
hearing would be a “procedural minuet” that took away time clinicians could better spend on delivering care.
The Court acknowledged that the risk of error inherent in parental decisionmaking was sufficiently great to
require an inquiry by a “neutral factfinder” who would probe the child’s background, using all available
sources.94 But a judge was not required because the decision to hospitalize was a medical decision, and
“neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric
judgments.”95 Lower courts had consistently characterized the decision to commit or not to commit as a legal
decision informed by medical evidence. However, the Court thought the issue to be “essentially medical in
character. . . . Even after a hearing, the nonspecialist decision-maker must make a medical–psychiatric
decision.”96 The Court also concluded that despite “the fallibility of medical and psychiatric diagnosis,” a shift
in the locus of decisionmaking from a “trained specialist to an untrained judge” would not remedy those
shortcomings.97
The implication of these remarks is clear. To the Court, psychiatric decisionmaking for purposes of civil
commitment was sufficiently refined that it deserved the type of deference generally reserved for judicial
decisionmaking when constitutionally protected freedoms are at stake. Although Parham involved the
commitment of children, the decision still represented a distinct departure from the tone of earlier lower-court
decisions. Indeed, because those who seek to commit adults (e.g., family members or clinicians) usually can be
said to have the subjects’ best interests at heart as well, one might argue that the type of procedure permitted
in Parham is sufficient for the commitment of adults as well.
The cases described above, plus a number of other Court decisions in the area of mental health,98 laid the
groundwork for a new round in the debate over what legal rules should govern the commitment process and
how much courts should defer to the judgments of clinicians. These decisions had an immediate impact on at
least some lower federal courts,99 despite criticism both within the Court100 and from commentators.101 As
discussed in more detail below, Addington and Parham laid the foundation for much-expanded definitions of
dangerousness in the 21st century.

10.03. SUBSTANTIVE CRITERIA FOR COMMITMENT

CASE STUDY 10.1

For the past year, Ms. Boggs, a.k.a. Ms. Joyce Brown,102 has lived on the public sidewalk in front of a New York City restaurant. She used
this location as her bedroom, toilet, and living room. At a proceeding instituted to determine whether she should be committed, Ms.
Putnam, a social worker who worked for Project Help (an organization that attempts to assist homeless persons), testified that she observed
Ms. Boggs scream racial epithets at delivery men who came near her on the sidewalk, apparently believing that they thought she was a
prostitute; Ms. Putnam was worried that the men might even assault Ms. Boggs.
Dr. Hess, a psychiatrist with Project Help, testified that a month after this incident, he saw Ms. Boggs for the first time; he also saw her
on three subsequent occasions, and each time her condition had worsened. On his first visit, she exhibited hostility to his staff’s attempts to

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help her; wore disheveled clothing; twirled an open umbrella to avoid eye contact with Dr. Hess and passers-by; and spoke in sexual rhymes
about genitals. Five days later, she had become more disheveled and was barefoot; she cursed him, flipped open her skirt, and exposed her
buttocks. Two months later, she was still at the same location. Her clothes were torn to the point that large portions of her torso were
exposed, and her clothing was inadequate for the weather. Her hair was matted; she smelled of urine and feces; she had torn up money and
stuck its pieces in the sidewalk; and she shouted obscenities at him. A month later, she smelled strongly of feces and Dr. Hess saw more
torn-up currency, which had been urinated upon; she also repeatedly said, “What is my name?” At this point, she was taken to the hospital.
At the hospital, another psychiatrist, Dr. Mahon, interviewed Ms. Boggs three times in the week before the hearing. He testified that on
the first occasion, he could not speak with her because she was hostile and angry. On the second, she was less angry, and he spoke with her
for 30 minutes. On the third occasion, four days after her first interview, she was bright, verbal, and oriented. He diagnosed her as having
chronic schizophrenia and said that her improved condition might have been due to a dose of psychoactive medication. Dr. Gould, another
psychiatrist, interviewed Ms. Boggs a few days after Dr. Mahon’s first interview; he found her to have no suicidal or homicidal ideation and
no delusions or hallucinations. He testified that “her insight was somewhat impaired” in terms of the “troubles [that] ensue from her
behavior,” but he did not think that she was suffering from schizophrenia. He said that she tore up the money because she found accepting
it degrading; that she had no alternative to defecating in the street; that she had never been hurt and “has very good survival skills”; that she
was congenial to those she liked; that the small amount of medication Ms. Boggs had been given could not account for the change in her
behavior following hospitalization; and that he found no evidence of deterioration in Ms. Boggs’s mental or physical condition, except for
the state of her clothing.
Ms. Boggs testified that she stayed at the street location because it had a hot-air vent there; that she had never been cold; that she
panhandled money for food, and made eight to ten dollars a day, which was more than she needed for food; that she had friends who could
supply her with clothes; that she used profanity to make the state’s staff go away; that she had no delusions about black persons giving her
money for sex; and that she had never hurt or threatened anyone. She testified that she would go back to the streets if released.

Questions: On these facts, should Ms. Boggs have been forcibly treated, or should her refusal have ended the matter? As a clinician, how
would you address questions about the likelihood that she will harm herself or harm others? If you were the judge ruling on a civil
commitment petition, would you have committed her for inpatient treatment? Would it make a difference if you could commit her to an
outpatient setting for treatment?

CASE STUDY 10.2

You work in a hospital emergency room. Police officers bring a 36-year-old man to the facility, and report that he became irritated at a
group of children and shook a small girl. Apparently the children had been playing outside his apartment, and he had rushed toward them
screaming, among other things, “You’ve taken away my childhood. You’ll go to hell.” The children were upset, but a medical examination of
the girl revealed no significant harm, and the officers reported that they would not charge the man. As you talk to the man, he seems calm.
He tells you that he lives alone on Social Security, that he has never taken psychotropic medication, and that he hears voices from time to
time telling him that he’s getting old and will soon go to hell. He admits that the children made him very angry, but he cannot explain why,
except that they reminded him of his past.

Questions: Should this man be forcibly treated? What else would you like to know? If he agrees to admit himself as a voluntary patient—
apparently convinced, contrary to what the police tell him, that it is the only way to avoid jail—should he be allowed to do so? What issues
would you consider in deciding whether a voluntary admission is appropriate?

Although the constitutional challenges to state commitment laws did not abolish involuntary psychiatric
hospitalization, they did lead to significant changes that have largely persisted even after the Supreme Court
decisions that we have just reviewed.103 Commitment laws in the United States vary across jurisdictions—and
in their actual application, from county to county within states.104 Yet every state’s law incorporates certain
key elements that we discuss in this section (on substantive criteria) and the next section (on procedural law).
With respect to substantive criteria, all state statutes require the individual subject to potential commitment
—often termed the “respondent”—to have a mental disorder. In defining “mental disorder,” some jurisdictions
include what is in effect another substantive criterion by requiring that the disorder result in lack of capacity to
recognize the need for treatment or make treatment decisions. Each state also requires a finding that the

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individual is dangerous to self or others as a result of the mental disorder. This emphasis on dangerousness is
the clearest legacy of the 1970s reforms, although as we explain below, modern courts have often framed
dangerousness much more broadly than did Lessard and other early cases.
Furthermore, most statutes allow commitment on the ground that the mental disorder renders the
individual unable to care for his or her basic needs. This latter criterion may be a part of the statutory
definition of dangerousness to self, or it may stand as a separate justification for commitment. A few states
also insist on a “need for treatment,” although permitting commitment on this ground alone would probably
be unconstitutional under Donaldson.
Finally, many statutes require that a commitment hearing include consideration of where treatment should
take place. This criterion—a requirement that treatment occur in the “least restrictive alternative” setting or
“least restrictive environment”—seeks to limit hospital confinement to those persons for whom no alternative
(or less restrictive) locus for treatment exists. Recently, this requirement has bolstered increased consideration
of outpatient commitment rather than hospitalization.
We consider each of these criteria briefly in the following sections. Recall that after Addington, the federal
constitution requires that these criteria be shown by “clear and convincing evidence,” although some states go
beyond the constitutional minimum and require proof “beyond a reasonable doubt.”

(a) Mental Disorder

The reform movement aimed to force greater specificity in legislative definitions of mental illness and largely
succeeded—at least on paper. For example, although at one time some states defined a “mentally ill person” to
be “a person whose mental health is substantially impaired,”105 today virtually every state defines mental
illness in less tautological terms. Vermont’s language is representative: “‘Mental illness’ means a substantial
disorder of thought, mood, perception, orientation or memory, any of which grossly impairs judgment,
behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but shall not include
intellectual disability.”106 This definition gives notice that the “disorder” must be serious (“substantial”) with
significant consequences (“grossly impairs”). It also recognizes that the disorder must impair the person either
cognitively (with its reference to compromised “judgment” or “capacity to recognize reality”) or functionally
(with its reference to deficits in “behavior” or “ability to meet the ordinary demands of life”).
Vermont’s definition also excludes intellectual disabilities from the mental illness rubric (although a
separate law authorizes commitment of this group). Several other jurisdictions also seem to exclude conditions
long associated with brain dysfunction, such as delirium, dementia, and epilepsy, by focusing solely on
schizophrenia and related psychotic disorders.107 Some statutes also specifically exclude antisocial personality
disorder,108 or nearly all personality disorders,109 from the definition of mental illness, perhaps because these
disorders seem less treatable or because they are associated with behavioral problems that seem better handled
through the criminal justice system.110 Finally, some states explicitly exclude substance use disorders in the
statutory definition of mental illness, and some states have separate inpatient commitment laws that address
substance use disorders.111
However, probably none of these exclusions is required by the Constitution. The Supreme Court’s decision
in Kansas v. Hendricks112 [discussed in detail in § 9.04(b)] made clear that for constitutional purposes, the

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definition of mental disorder in the commitment context can be very broad and is essentially a matter for each
state to decide.113 While the Court did require that the “mental abnormality” that forms the basis for
commitment make the individual “dangerous beyond control,” in practice this requirement has merely meant
that the person must evidence significant signs of danger, and it is clearly met if a person has a personality
disorder or a paraphilia—conditions that traditionally have not triggered mental health commitments.
Furthermore, Hendricks only defined mental disorder for purposes of police power commitment. As discussed
in the next subsection, the definition of mental disorder for parens patriae commitment is not subject to the
“diminished control” limitation.114

(b) Capacity to Make Treatment Decisions

The current “official” definition of a mental disorder refers to “clinically significant disturbances” and
“dysfunction in the psychological, biological, or developmental processes underlying mental functioning.”115
Notice that this definition does not mention the extent to which a mental disorder affects one’s competence to
make treatment decisions. Yet when civil commitment reforms were taking shape in the 1970s, influential
commentators, including Roth116 and Stone,117 proposed that individuals should not be subject to
commitment unless their mental disorder impairs their capacity to make a competent decision concerning
treatment. To the extent that use of an incapacity threshold is limited to parens patriae commitments, this
stance makes sense. The state should have no authority to exercise this power over people who can make valid
decisions of their own [see §§ 7.01, 11.01]. But if the state wishes to commit someone under the police power
because of risk to others, the individual’s ability to make treatment decisions should probably not be
determinative.118
Despite the logic of imposing an incapacity criterion on parens patriae commitments, only a handful of
states do so, and few of these try to define the competence concept further.119 This is unfortunate not only for
the theoretical reasons just outlined, but also for two practical reasons. First, as discussed in detail in §
11.03(b), a number of courts have recognized a constitutional right to refuse psychoactive medication for
patients who are competent to make treatment decisions (at least if they are not dangerous to others). In these
jurisdictions, the issue of capacity will often have to be confronted in any event [see the J. Marlar report in §
19.06(a)]. If it is not then, as Roth observed, “the risk is that the mental hospital will again become custodial,”
because competent patients will refuse proposed treatment.120 Second, as described in § 10.04(c), every state
provides persons subject to commitment some sort of “voluntary” hospitalization option, which can usually
only be exercised if the respondent is competent to understand the consequences of the decision. Indeed, in
Zinermon v. Burch,121 the Supreme Court strongly suggested that “voluntary commitment” of an incompetent
person is unconstitutional; as the Court put it, a state must either “comply with state procedures for admitting
involuntary patients, or . . . determine whether a patient is competent to consent to voluntary admission.”122 If
this requirement is taken seriously (which often is not the case123), some assessment of competence should be
made preparatory to every commitment hearing, to find out whether the voluntary option might be
exercisable.124

(c) Danger to Others

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All states allow the commitment of individuals who pose a risk of harm to others. Indeed, given the Supreme
Court’s statements in Donaldson and Addington, dangerousness has firm support as a commitment criterion.
Definitions of “dangerousness” vary widely, however. One of the more restrictive definitions, similar to
Lessard’s, comes from Florida, which requires a “substantial likelihood that in the near future [the person] will
inflict serious bodily harm on . . . another person, as evidenced by recent behavior causing, attempting, or
threatening such harm.”125 Alabama’s statute, in contrast, states simply that a person with mental illness is
committable if he or she poses a “real and present threat of substantial harm to self and/or others.”126 A
number of states (including Alabama) also have adopted what has been called the “predicted deterioration”
standard, which often applies only in connection with outpatient commitment but in some states could justify
inpatient commitment as well. In Hawaii, for instance, a person can be committed to outpatient treatment if
he or she has been previously hospitalized for a severe mental disorder or substance abuse, has been
imminently dangerous to self or others, or is gravely disabled, and now needs treatment “to prevent a relapse
or deterioration which would predictably result” in the individual’s becoming “imminently dangerous to self or
others.”127
In comparing these formulations, note first that the Florida law requires proof of a substantial risk of
“bodily” harm. Most states that define dangerousness do likewise. However, danger to property or other
interests may occasionally form the basis for commitment. For example, a federal court of appeals found that
Hawaii’s statute allowing commitment based on any type of harm to property was unconstitutionally broad,
but the court also noted that it need not decide “whether a state may ever commit one who is dangerous to
property.”128 In addition, a few states allow commitment based on a prediction that the individual will cause
emotional harm to others.129
Another important feature of the Florida statute is its insistence upon proof of some “recent” violent
behavior, or a threat of such behavior, to justify commitment. A fair number of states explicitly require that an
“overt act” be proven to authorize commitment. For example, Pennsylvania requires proof that the person
poses a “clear and present danger” to self or others, as shown by conduct that has occurred “within the past 30
days.”130 This type of requirement is designed both to minimize the risk of an erroneous prediction and to
increase the likelihood that the danger is “imminent,” as opposed to diffuse and distant.131 However, a
number of courts have held that proof of an overt act is not a necessary predicate for commitment, at least as
long as the statute still requires proof that the dangerous behavior is reasonably foreseeable;132 those states,
like Hawaii, that adopt a predicted deterioration standard also appear to have abandoned any overt act
requirement and have clearly rejected the imminence requirement.
Regardless of the definition, certain legal variables are always likely to be relevant in assessing danger to
others. In a formulation that remains as pertinent now as when it appeared in the 1980s, Brooks
conceptualized dangerousness as involving four such variables: (1) the severity of the harm predicted, (2) the
probability that the predicted harm will occur, (3) the frequency with which the harm might occur, and (4)
the imminence of the harm.133 None of these factors is dispositive; rather, each requires consideration in any
effort to evaluate the seriousness of the “danger.” For instance, confining a person who is thinking about
killing someone within the next few weeks makes sense, even if the chance of his or her doing so is small. By
comparison, one might be less willing to commit a person who, like the woman in Case Study 10.1, is at most
certain to resume shouting epithets at passers-by, or a person who, like the man in Case Study 10.2, is prone

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to actions that might occasionally cause slight physical injury (although the fact that the risk in this case is to
children might push the calculus in the other direction).134

(d) Danger to Self

Each state also allows commitment of individuals who represent dangers to themselves. The definition of
“danger to self” tends to mirror the definition of “danger to others.” That is, statutes providing little or no
content in defining “danger to others” provide little or no content in defining “danger to self.” Pennsylvania’s
statute, in contrast, is quite specific, requiring a suicidal act or an act of self-mutilation within the past 30
days.135
Despite the variation in definition, every state statute appears to contemplate commitment for risk of
suicide. In addition, as the next subsection discusses in more detail, those states that do not have a criterion of
“grave disability” usually apply the “danger-to-self” criterion broadly enough to encompass nonsuicidal
conduct that could cause serious harm to oneself.

(e) Grave Disability/Inability to Care for Self

To the reformers of the 1970s, committing poor individuals with idiosyncratic lifestyles simply because they
“needed treatment” was a prime example of paternalistic (mis)use of state authority. Their position won partial
support in Donaldson, where the Supreme Court firmly stated that the state could not hospitalize people
simply to improve their living conditions or solely because they were mentally ill [see § 10.02(c)]. Yet the
majority opinion also stated that “the State may arguably confine a person to save him from harm,”136
suggesting that the state’s authority to commit gravely disabled persons had continued vitality—a position that
Chief Justice Burger strongly endorsed in his concurring opinion.
In any event, today every state permits commitment of persons who are so “gravely disabled” that they are
at risk of incurring physical harm, as demonstrated by failure to take self-preserving steps or by statements
that reflect intent to self-harm. At least three-quarters of the states do so explicitly,137 whereas the rest allow
such commitment under the danger-to-self rubric. The implementation of this criterion, as usual, varies
among the states. Nevada incorporates the concept into its definition of mental illness by requiring a showing
that the person’s behavior within the past 30 days indicates “that, without the care, supervision or continued
assistance of others, the person will be unable to satisfy his or her need for nourishment, personal or medical
care, shelter, self-protection or safety,” and thus risk “death, serious bodily injury or physical debilitation”
within a month.138 Other jurisdictions use an inability-to-care-for-basic-needs rubric and delineate the
“needs” that the individual must be found incapable of meeting—typically food, clothing, shelter, medical
care, and the ability to secure personal safety.139
A third variant, proposed by the American Psychiatric Association and adopted in a number of states,140
would permit commitment if the person “will if not treated suffer or continue to suffer severe and abnormal
mental, emotional or physical distress, and this distress is associated with significant impairment or judgment,
reason, or behavior causing a substantial deterioration of his previous ability to function on his own.”141 As in
the police power setting, this “predicted deterioration” standard is usually applicable only in the outpatient

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setting. It is meant to be broader than the two formulations described above because it allows commitment
based on predicted rather than present disability. In upholding this standard against constitutional challenge,
the Wisconsin Supreme Court stated:

By permitting intervention before a mentally ill person’s condition becomes critical, the legislature has enabled the mental health treatment
community to break the cycle associated with incapacity to choose medication or treatment, restore the person to a relatively even keel,
prevent serious and potentially catastrophic harm, and ultimately reduce the amount of time spent in an institutional setting. This type of
“prophylactic intervention” does not violate substantive due process.142

This decision is particularly noteworthy because the Wisconsin statute in question permits hospitalization
if the criteria are met.143 It also defines “grave disability” very broadly, to include mental or emotional harm
that can cause loss of cognitive or volitional control; suicidal or physically harmful behavior need not be
predicted, even in the far-off future, although an incapacity to make treatment decisions must be
demonstrated.144 This statute and the court’s reaction to it differ strikingly from the Wisconsin federal district
court’s Lessard ruling, which held that “the state must bear the burden of proving that there is an extreme
likelihood that if the person is not confined he will do immediate harm to himself.”145
Continuing difficulties in creating community-based care systems in the United States146 (often
encountered abroad as well147), combined with a call in some quarters for reinstitutionalization,148 probably
guarantee the continued vitality of the “grave disability” criterion. Yet commitment under this standard is the
most problematic, because, as Case Study 10.1 illustrates, it requires trying to distinguish between individuals
who live an impoverished existence and individuals whose existence is impoverished because of treatable
mental disorder. This criterion raises most starkly issues of state power, individual autonomy, and the
multiplicity of causes for any specific living situation.

(f) Need for Treatment

The majority of states also include as part of their commitment laws a requirement that the person need
treatment.149 This concept is frequently incorporated into the definition of mental illness. For example,
Delaware defines a “mentally ill person” as “a person suffering from a mental disease or condition which
requires such person to be observed and treated at a mental hospital for his own welfare and leaves the person
unable to make responsible treatment decisions or a danger to self or others.”150 It may also be included as
part of another criterion, usually that having to do with “grave disability.”
As noted above, some states have expanded their commitment laws to permit commitment of a person who
is at risk of deteriorating without treatment. Yet a “need for treatment” without some additional justification
is probably not sufficient to warrant commitment.151 Prior to the 1970s, need for treatment or care was the
most common commitment criterion. However, since Donaldson’s holding that the state cannot confine a
person simply because he or she is mentally ill, it has been on shaky constitutional footing.152
Conversely, as a conceptual matter, lack of treatability is not a bar to commitment if the basis for
commitment is the police power.153 As the United States Supreme Court wrote in considering the validity of
sexual offender commitment laws,

While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, we have never held that the Constitution
prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. A State could

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 hardly be seen as furthering a “punitive” purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease . .
. Similarly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no
acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill
and dangerous simply because they could not be successfully treated for their afflictions.154

Given this language, treatability may not even be a requirement in the parens patriae setting.155
Even in the face of these doctrinal considerations, the idea persists that treatment ought to be the primary
consideration in deciding whether to commit an individual. Indeed, despite the common view that after the
legal reforms of the 1970s, the treatability criterion seemed like a “vestigial structure”156 left over from the
pre-reform laws, a few commentators continued to favor reinstituting this criterion as a primary basis for
commitment.157 The proposals of Stone and Roth alluded to earlier [see § 10.03(b)] were the most explicit in
this regard. We discuss their ideas briefly here, because recent changes in civil commitment law and the
Supreme Court’s related rulings have given treatment-oriented commitments renewed importance.
The Stone and Roth models are similar in intent and in form. Each focuses clinical attention and resources
on the treatment of illness rather than on the patient’s dangerousness. Each also seeks to limit the use of civil
commitment only to the most seriously ill persons, and each attempts to ensure that treatment will be made
available to patients. The main features of these proposals are the following:

1. The individual must be reliably diagnosed as suffering from severe mental illness.158
2. In the absence of treatment, the prognosis for the individual is poor.
3. The individual is incompetent; that is, the individual’s mental illness substantially impairs the ability to
understand or communicate about the possibility of treatment.159
4. Treatment is available.
5. The risk–benefit ratio of treatment is such that a reasonable person would consent to it.160

If these conditions are met, as determined at a hearing at which the person has full procedural rights, a brief
period (six weeks, in Roth’s proposal161) of treatment may occur. Because the court has found that the patient
lacks capacity to make treatment decisions, a substitute decisionmaker would give or withhold informed
consent to the proposed treatment.162
Roth also advocated limited use of commitment on dangerousness grounds,163 while Stone would relegate
the control of dangerousness to the criminal justice system.164 The primary goal of each proposal, however, is
to restore parens patriae as the primary source of civil commitment. Stone calls this the “Thank You Theory
of Civil Commitment”: “[I]t asks the psychiatrist to focus his inquiry on illness and treatment, and it asks the
law to guarantee treatment before it intervenes in the name of parens patriae.”165
These proposals received immediate criticism on both theoretical and practical grounds,166 and they were
never incorporated fully into any state statute. Furthermore, empirical research on the extent to which
involuntarily committed individuals are retroactively grateful for the experience reports mixed results.167
Nonetheless, these proposals, or something like them, could well be rejuvenated given the renewed arguments
over the goals and substantive criteria for civil commitment.

(g) The Least Restrictive Alternative

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In most states, meeting the substantive criteria is not enough: Commitment to a hospital is still not
permissible if a less restrictive alternative exists.168 First recognized by Judge Bazelon as a right derived from
statutory law,169 the least-restrictive-alternative doctrine has since attained constitutional status in a number
of jurisdictions.170 The basis for the doctrine is the principle, developed in cases involving the First
Amendment,171 that the state may restrict the exercise of fundamental liberties only to the extent necessary to
effectuate the state’s interest. Because commitment infringes the fundamental interest of individual liberty,
this argument goes, it is justifiable only to the extent needed to achieve the aims of providing treatment and
protecting the individual or community. Under this scheme, the state hospital is posited as the most restrictive
environment, and community-based services and outpatient care are seen as less restrictive.
The goal of the doctrine, which seeks to ensure that hospitalization occurs only when necessary, is
laudable. However, as with the other criteria discussed, statutory guidelines in this area are not particularly
precise. As Hoffman and Foust pointed out years ago,172 this ambiguity has led to a failure to resolve several
critical issues. First, the doctrine is preoccupied with physical restrictiveness. It presumes that hospitals are the
most restrictive environment and that treatment settings become more preferable as they become less
“hospital-like.” This superficial analysis fails to recognize that certain physically restrictive treatments might
be more efficacious and might therefore result in an overall reduction in the duration of state intervention.
The conditions in unregulated community-based adult living facilities, which have shown little improvement
over the past decades, also undercut the idea that hospitals are necessarily the most restrictive treatment
environment.173 Second, it is not always clear who is responsible for finding alternatives (the judge, the
individual, or the state?), or what the extent of that responsibility is. Even when the responsible party is
identified, one study found that the responsibility was often ignored.174 Third, alternative resources often
simply do not exist. Is the inquiry limited to a search of available resources, or must it consider the most
appropriate resource in an ideal world?
Several courts have found that the doctrine requires the development of community-based resources.175
However, other courts have rejected this argument.176 The Supreme Court has shown ambivalence about this
idea even when it is incorporated into federal legislation, such as the Developmentally Disabled Assistance
and Bill of Rights Act.177 In Olmstead v. L.C. ex rel. Zimring,178 the Court did hold that continued
institutionalization of a person who could be treated in the community may constitute discrimination under
the Americans with Disabilities Act (ADA) [see § 13.02]. But the Court also stated that “the State generally
may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets
the essential eligibility requirements’ for habilitation in a community-based program.”179 More importantly, it
emphasized that states have a “fundamental alteration” defense under the ADA that allows them to take costs
into account when deciding whether to create community treatment programs.180 Thus the Court concluded
that states must provide these programs only when “the State’s treatment professionals determine that such
placement is appropriate, the affected persons do not oppose such treatment, and the placement can be
reasonably accommodated, taking into account the resources available to the States and the needs of others
with mental disabilities” (emphasis added).181
At the same time, even this cautious language could be interpreted as providing a springboard for creating a
community treatment network.182 Although ADA-based lawsuits have faltered in some jurisdictions,183 in
others the state has agreed to broad relief for thousands of individuals in areas such as housing (New York),

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employment (Rhode Island), and treatment services (Delaware).184
In sum, while it seems unlikely that the Court will find a constitutional basis for the least-restrictive-
alternative doctrine,185 the doctrine remains an explicit statutory principle in federal law and the law in most
states. Even if it does not lead to dramatic changes in states’ willingness to create community programs, it may
affect the outcome of individual commitment cases—particularly in view of the dramatic upsurge in statutes
that provide for outpatient commitment, discussed next.

(h) Outpatient Commitment

If restrictiveness for purposes of commitment refers merely to the degree of physical confinement, then the
most obvious way to implement the least-restrictive-alternative doctrine is to commit respondents, whenever
feasible, to an outpatient treatment program.186 Involuntary community treatment comes in at least three
guises, however, two of which may not completely mesh with the doctrine’s underlying policy.
The type of nonhospital treatment that most obviously implements the least restrictive alternative policy is
outpatient commitment as an alternative to hospitalization—an option now authorized in almost all states.187
This approach is usually accomplished by inserting a phrase such as “or outpatient treatment” whenever the
commitment statute refers to inpatient treatment. Whether the court orders inpatient or outpatient care, the
substantive and procedural standards are the same. The purpose is simply to give the court an alternative to
inpatient care if the person meets the criteria for commitment.
A second nonhospital option is conditional release, which has been widely available for decades188 and was
particularly common when state psychiatric facilities were the primary caregivers.189 This form of outpatient
commitment involves continued supervision after release from the hospital. Typically, the hospital (or, in
some jurisdictions, the court) informs the person of the release conditions (e.g., reporting to a clinic for
medication), violation of which can trigger rehospitalization, either summarily or after some sort of hearing.
In contrast to commitment at the front end, conditional release serves mainly as a way to evaluate the treated
individual’s ability to function in the community under supervision. Note further that, unlike outpatient
commitment as an alternative to hospitalization, conditional release programs implicitly permit the state to
maintain control over an individual who does not meet the traditional commitment criteria focusing on
imminent danger; otherwise, release would be unlikely.
The final type of outpatient commitment, which has been called “preventive commitment,”190 explicitly
permits state intervention using standards that differ from inpatient commitment standards. More specifically,
these statutes rely on some version of the predicted-deterioration formulation described above to authorize
commitment of those who will soon meet the usual commitment criteria if intervention does not take place.
These statutes have received the most attention, because they lie at the heart of the debate regarding the
appropriate balance between individual liberty and the reach of state authority. Thus it is worth examining
them in a bit more detail.
Preventive-commitment statutes were enacted not as alternatives to inpatient commitment (one of the
purported reasons for outpatient commitment), but for a number of other reasons, including

concerns about . . . a growing number of mentally disordered people in shelters and on the streets, resistant to treatment and in various stages
of decompensation, who cannot be hospitalized under the strict commitment criteria; a backlash among psychiatrists and mental health

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 professionals to what is perceived as over-legalization of the mental health system; and advocacy by increasingly vocal parents’ groups,
particularly the National Alliance for the Mentally Ill, who are demanding treatment for their family members and increasingly allying
themselves with mental health professionals to press for the easing of commitment standards.191

As the New York legislature concluded in passing its preventive-commitment law (commonly known as
“Kendra’s Law”192),

there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but
who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization . . . Family members and
caregivers often must stand by helplessly and watch their loved ones and patients decompensate.193

Thus preventive commitment is aimed at obtaining treatment for individuals with mental illness who do not
meet the “reform criteria” based on imminent danger to self or others.
Statutes authorizing preventive outpatient commitment take many forms. For example, Kendra’s Law
authorizes “assisted outpatient treatment” (AOT), a program designed to keep people with mental illness who
are in the community in contact with treatment and support services through a comprehensive “case
management” system that operates on an indeterminate basis. The law permits intervention if, inter alia, the
person (1) “is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which
would be likely to result in serious harm to the patient or others”; and (2) has a “history” of noncompliance
with treatment, as a result of which hospitalization has occurred twice within the last 36 months or violence
has occurred within the last 48 months.194 Failure to accept treatment may lead to a 72-hour hospitalization;
further hospitalization requires that traditional commitment criteria be met.195
Opponents of the law worried that it would vastly expand the reach of the commitment regime, with some
predicting that each year 10,000 people would be added to the commitment rolls. Experience has proven
otherwise. In the first two and a half years of the law’s operation, more than 7,000 individuals were
“investigated,” but only 2,135 AOT orders were issued.196 In the first five years of the statute, 3,908 were
committed under its authority, and through 2007, there had been 8,752 orders and 5,684 renewals of initial
orders.197 Furthermore, the legislature appropriated millions of dollars to provide services to people
committed under Kendra’s Law and included a provision granting these people automatic access to intensive
case management and priority for housing. These actions, combined with the ruling by the New York Court
of Appeals that medication could not be imposed absent a judicial finding of incompetence,198 have effectively
converted Kendra’s Law into a “right-to-treatment” statute, potentially diluting the controversy regarding the
civil rights implications of the law. While other states with preventive commitment statutes have not been so
generous with funding, they apparently seldom rely on the laws for front-end commitment; rather, most
outpatient services are provided as a form of conditional release.199
From the foregoing descriptions, it should be apparent that the three legal mechanisms for treating people
in the community stem from different policy goals. At the same time, they are similar in their salient
substantive features. Technically, a person is not eligible for the first type of outpatient commitment unless he
or she meets the traditional commitment criteria, whereas conditional release and preventive commitment can
be triggered by something less. As a practical matter, however, the substantive criteria as applied to people
who are mentally ill and dangerous to self or others are probably not very different under any of these options.
Most people who are presently or “imminently” dangerous to themselves or others are not treatable on an

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outpatient basis. On the latter assumption, the only persons for whom outpatient commitment makes sense
are those who would eventually come to harm or would harm others if treatment was not commenced or
maintained. In practice, therefore, the standard of predicted deterioration applies to all three mechanisms
labeled “outpatient commitment.”200
This standard may well violate the libertarian notion that the state should intervene only when danger is
imminent,201 but that does not make it unconstitutional or even unwise. As § 10.03(c) points out,
“dangerousness” is best conceptualized as a multifactor construct, involving the nature of the anticipated harm,
its probability of occurrence, and the frequency with which it may occur, in addition to its imminence. Under
this formulation, the imminence of the harm is only one of many factors relevant to whether a person should
receive involuntary state intervention for treatment or incapacitation purposes. Thus, assuming that the
anticipated harm is significant and probable, or likely to occur frequently, it may not need to be imminent to
justify commitment. Several courts, including the New York Court of Appeals in its analysis of Kendra’s Law,
have suggested as much—both when the predicted-deterioration standard is used as the initial intervention202
and when it is used in connection with conditional release.203
Although eliminating the imminence requirement may therefore be permissible,204 such a move might still
have an unconstitutional impact without certain precautions. As research suggests,205 the predicted-
deterioration standard could easily create a class of patients who never escape control by the state, because
their “dangerousness” is always just around the corner (consider, in this regard, Case Study 10.1).
Consequently, commitment statutes using such a standard should perhaps be construed to provide that those
committed under this standard should be eligible for automatic release from outpatient commitment after a
certain time unless their dangerousness does become imminent.206
Relevant to the constitutional issue is empirical research evaluating the efficacy of outpatient commitment.
The matter remains in doubt,207 although some studies suggest that intense outpatient commitment can
reduce hospital readmission rates and lengths of stay. One of the most thorough studies of outpatient
commitment to date found that readmission rates for psychotic individuals could be diminished significantly if
outpatient commitment was prolonged (180 days or more) and if a high level of outpatient services was
provided (more than seven encounters a month).208 Extended outpatient commitment also may reduce
criminal victimization and arrest.209 Less clear is whether involuntary outpatient commitment is needed to
treat the people it targets. Several commentators have argued that aggressive, comprehensive, and intensive
outpatient mental health resources provided on a voluntary basis might produce the same positive outcomes;
in their view, the evidence for compulsory mechanisms is weak, and the cost of the intervention (in monetary
terms and coerciveness) is not warranted, given the state of the evidence.210
Outpatient commitment is just one way to induce people to obtain community treatment. In a multisite
study of self-reported lifetime experience with community treatment, approximately 50% of more than 1,000
community patients reported that they had experienced at least one form of leverage designed to make them
comply with treatment, including not only civil or criminal court orders, but threats to withhold money and
housing.211 To date, the latter forms of leverage have been relatively neglected by legal commentators, even
though they may feel as coercive as outpatient commitment.212

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 10.04. PROCEDURAL DUE PROCESS

Because civil commitment involves a deprivation of liberty, the 1970s movement to reform civil commitment
laws sought to make judges rather than clinicians the primary decisionmakers, and to give the proposed
patients (the “respondents”) procedural protections approaching those afforded to criminal defendants. In
doing so, it was hoped that this new, “legalized” process, combined with stricter and better-defined
substantive criteria for commitment, would improve the accuracy of the decisions made at commitment and
eliminate inappropriate confinement.
The commitment process has in fact been legalized (although perhaps not in practice [see § 10.05(c)]).
Even those jurisdictions that, in substantive terms, are the most medically oriented grant respondents a wide
range of procedural rights; the primary difference between statutes appears to be when judges become involved
in decisionmaking. The first subsection that follows contrasts several representative statutes, which fall along a
continuum from medically oriented (New York) to relatively legalistic (California) to primarily legalistic
(Virginia). The procedures associated with outpatient and voluntary commitment are then discussed.

(a) Inpatient Commitment Procedures

Each state provides for at least two stages of commitment. The first is emergency commitment, generally
unencumbered by significant procedural trappings.213 The second, which usually follows soon after the first, is
the formal commitment hearing, at which the full panoply of rights applies.

(1) Emergency Admissions

Because of the frequent need to intervene immediately to prevent harm to self or others, even the most
legalistic state commitment schemes allow emergency admission with a minimum of involvement by court
personnel. In California,214 either a police officer or a clinician may authorize emergency admission of an
individual. In New York,215 the decision is made by a clinician at a facility or by the county director of mental
health. Although a judge or magistrate makes the emergency detention decision in Virginia,216 the judge need
not actually see the respondent. In none of these states is the respondent entitled to a hearing, or even entitled
to speak to counsel before hospitalization. Nor does the petitioner for emergency admission have to meet a
high level of proof in establishing committability; no standard of proof is established in New York or
Virginia,217 and California requires the decisionmaker only to state that “probable cause”218 exists to believe
that the person is mentally disordered and, as a result, gravely disabled or a danger to self or others.
Each state does require that the detained individual be given prompt notice of (1) how long the
confinement is likely to last, (2) when the right to counsel becomes available, and (3) when the individual is
entitled to a hearing. In Virginia, these rights are related to the individual by a judge at a “probable cause”
hearing held within 72 hours of detention;219 in New York220 and California,221 the detaining facility
provides the necessary notice. Access to counsel is theoretically available immediately after notice in Virginia,
but in California only if the individual is held longer than 72 hours.222 In New York, where Case Study 10.1
took place, patients automatically have the benefit of the Mental Hygiene Legal Service, a legal advocacy
organization located on facility grounds.

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 In most states, the period of emergency admission is brief (72 hours in both Virginia223 and California224).
In New York, however, the individual may be detained up to 15 days on an “emergency” basis if a second
physician has examined the person within 48 hours of admission and finds that the individual is mentally ill
and dangerous to self or others.225 This provision is tempered somewhat by the monitoring of the
aforementioned Mental Hygiene Legal Service. Also, the patient may request a judicial hearing at any time,
and if the patient does so, the hearing must be held within five days.226
A mechanism that competes with the emergency admission procedures just outlined is the “prehearing
screening.” Beginning in the 1980s, a number of states established, by statute or local custom, “screening”
organizations at the community level that are charged with referring people with mental problems to the most
effective treatment program available. In these jurisdictions, “the great majority of persons entering the mental
health–judicial system never see the inside of a courthouse: many persons are screened and diverted to more
suitable alternatives, many elect to enter mental health treatment and care programs voluntarily, and some are
discharged shortly after arrival at the mental health facility.”227
Most jurisdictions specifically exempt “emergency” cases from this screening procedure; even so, many
individuals who might have been “emergency admissions” under the old system seem to avoid the involuntary
commitment process altogether under this new scheme. In Arizona, for instance, about three times as many
individuals were diverted than proceeded through the involuntary petition procedure.228 Knowledge of
available services is a key component of effective screening. One commentary noted:

These early interventions should be based on knowledge of the mental health services delivery in the area and should take into account such
factors as the range of treatment and services available, the criteria for admission to various facilities, the security of particular mental health
facilities, and the conditions within facilities. Good initial processing decisions also require an understanding of the linkages between the
agencies.229

(2) Long-Term Detention

In contrast to emergency admissions, which are designed to promptly confine acutely ill and dangerous
persons, long-term detention requires judicial approval of continued confinement in an adversarial proceeding.
In each of the jurisdictions under consideration, the respondent is entitled to the following rights before or
during this hearing:

1. Written notice of the fact that the patient faces a commitment proceeding; his or her rights during that
proceeding; and, with the possible exception of New York,230 the underlying reasons for the proposed
commitment.
2. A right to counsel, and to have counsel appointed if necessary.231
3. The right to call witnesses and cross-examine witnesses.
4. The right to request a jury trial, although in Virginia and New York this right does not apply unless the
patient appeals the initial determination.232
5. The right to have a judge rather than a clinician make the ultimate decision.
6. The right to have the state prove its case by clear and convincing evidence.233

States may differ on issues such as the admissibility of hearsay evidence [see § 3.07(a)],234 the applicability

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of the privilege against self-incrimination [see §§ 4.02(e), 10.09(a)],235 the right of the individual to an
independent clinician to assist in the preparation of a “defense” [see § 4.03(b)(1)],236 whether the respondent
may invoke privilege to prevent treating clinicians from testifying,237 when the respondent can waive the right
to be present,238 and the confidentiality of the commitment proceeding.239 But the core procedural rights are
fairly standardized throughout the country, whether the statute is “legalistic” or “medical” in general
orientation. To a great extent, respondents have rights similar to those available to criminal defendants.
The procedural differences that most clearly reveal how a legislature has chosen to balance individual and
state interests involve when more formal adversary proceedings must occur and the duration of the resulting
confinement. In Virginia, a full judicial hearing must occur within 72 hours of entry of the initial detention
order.240 If the court determines that the individual meets the commitment criteria, it may commit the person
initially for up to 30 days, with commitment of up to 180 days possible after another judicial hearing.241 In
contrast, in California, an individual may be confined for up to 4 days (with a possible 48-hour extension)
after the initial 72-hour detention if the facility finds that the person meets the commitment criteria;242 if
certification occurs, treatment may continue for the remainder of the 14-day period that begins after
expiration of the initial 72-hour detention.243 If further care is required at the expiration of the 14 days, it may
be obtained either through a second 14-day certification (for an “imminently suicidal” person),244
“conservatorship” (guardianship) proceedings (if the person is gravely disabled),245 or a full judicial hearing
(for all others).
New York’s scheme is quite different from the two just described. Confinement extending to 60 days after
the 15 days of emergency detention may occur after two physicians have certified that the individual meets
commitment standards.246 Once the individual is hospitalized, a third physician at the institution must
examine the patient and also consider alternatives to hospitalization;247 as noted previously, the patient may
also request a judicial hearing with the aid of the Mental Hygiene Service. But no such hearing is required
until 75 days from the original detention.248
As with the substantive criteria for commitment, statutory procedural protections attempt to accommodate
both the state’s and the individual’s interests. The balance struck, however, does make a difference. For
example, New York’s scheme, which does not require a judicial hearing for two and a half months, may vitiate
the effect of procedural protections in checking unwarranted commitment, simply because of the delay after
confinement in making the protections available. Though most psychiatric hospitalizations nowadays last less
than two weeks,249 some patients stay much longer,250 and an early and meaningful judicial check on the
clinical decision to admit may provide valuable legal protections. In contrast, Virginia’s law, which requires a
full hearing within 48 hours of the initial detention, may not allow enough time for a thorough clinical
evaluation prior to the hearing. Given insufficient data, the system may react by deciding close or undeveloped
cases in favor of commitment. The balance struck by the California law—which establishes clinical
gatekeeping, an informal “probable cause” hearing before a 14-day confinement can occur, and a judicial
hearing before longer detention—affords enough time for an accurate assessment while still protecting
individual liberty interests.251

(b) Outpatient Commitment Procedures

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Whether the mechanism for implementing outpatient treatment is traditional outpatient commitment,
conditional release, or preventive commitment [see § 10.03(h)], three procedural components for ensuring
compliance with the treatment regimen are necessary: a method for arranging the outpatient treatment
program, some type of monitoring system, and some procedure for taking corrective action if the person
committed does not adhere to the outpatient treatment plan. The laws of most states are extremely vague
about these implementation issues.
The primary responsibility for developing a treatment plan rests with clinicians. In the context of
conditional release, once the plan is developed most states require that the committed person receive a copy of
the conditions to be followed; some require a written agreement with the person.252 Presumably, similar
methods of informing the committed person are available under outpatient and preventive-commitment
statutes, although the relevant statutes seldom make this clear. The principal difference between the
outpatient treatment mechanisms is that under most conditional-release regimes, the person remains legally
committed to the releasing institution rather than to an outpatient treatment setting.253 Another difference
between states, pertaining solely to conditional-release programs, is that courts are not always involved in
approving the treatment plan. Even when courts are involved, however, they rarely do more than rubber-
stamp the treatment plan and order the committed person to follow it.254 The same is probably true at
hearings to determine whether outpatient commitment should occur at the front end. However, some states
do require proof that the recommended treatment actually be available, which tends to require more court
involvement.255
Once a patient enters an outpatient program, how is compliance with the treatment plan enforced?
Typically, the committing court is merely a nominal monitor; the real oversight comes from the treatment
agency. Some commentators have proposed an alternative, which could be called the “administrative” model.
The Psychiatric Security Review Board in Oregon provides a useful example. This board is composed of a
psychiatrist, a psychologist, a lawyer, a parole expert, and a member of the public, and supervises conditional
release of insanity acquittees.256 In addition to making the initial release decision, the board is charged with
intensively supervising the acquittee’s progress and appears to have performed well in this regard.257 Falling
somewhere between these two models is the practice in New York, where intensive case management, backed
up by resort to the court in cases of nonadherence, provides the monitoring mechanism.258 A number of legal
issues could arise related to the intrusiveness of such monitoring,259 but to date, no legal decisions address
these matters.
From the legal perspective, the most controversial implementation issue concerns the procedure for
“revoking” or terminating outpatient treatment and recommitting or committing the individual to an inpatient
facility. Inevitably, courts analyzing this issue have focused on the analogy to revocation of parole [see §
9.03(a)(4)]. Here the leading decision is Morrissey v. Brewer,260 where the United States Supreme Court held
that the “conditional liberty” of paroled criminals entitles them to preliminary and final revocation hearings,
notice and confrontation rights, and (in “complex” revocation proceedings) the right to counsel as well. Some
lower courts, contrasting the therapeutic rationale of hospitalization with the punitive intent behind parole
revocation, have held that Morrissey does not apply in the outpatient treatment context, at least to revocation
of conditional release. These courts have thus upheld automatic (i.e., nonjudicial) rehospitalization of the
outpatient who has violated a condition of treatment (although they also note that the person can always

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challenge a detention through a writ of habeas corpus).261 Other courts have permitted emergency detention,
but then required a prompt Morrissey-type hearing to determine whether hospitalization was warranted.262
Finally, a number of courts and state statutes permit rehospitalization only upon court order, although they
differ as to whether a hearing must precede the order.263 Some states also apply the latter procedures to
attempts to hospitalize those initially committed on an outpatient basis.264 And some states with preventive
commitment statutes permit the initial outpatient commitment itself to take place under relaxed procedures.
For instance, in North Carolina provision of counsel is automatic at hearings regarding inpatient treatment,
but is discretionary with the court at preventive commitment hearings.265
Analogizing revocation of parole with revocation of conditional release (or with hospitalization after an
initial outpatient commitment), as most courts have, is problematic. Hospitalization is not a punitive measure,
and it usually will last a much shorter time than does imprisonment after parole revocation, which might
suggest that less process is due. At the same time, however, the state has clear authority to incarcerate the
paroled offender for the period denominated by the uncompleted sentence; in contrast, the state does not have
authority to confine unconvicted persons with mental illness unless they are dangerous to themselves or
others. For this reason, one can argue that justice requires granting a rehospitalized patient a full hearing after
a short emergency detention, and that rehospitalization should occur only if the normal inpatient commitment
criteria are met. In some states, such a requirement results in the patient’s being transported to a hospital for
evaluation, which exacts a toll on law enforcement resources.266 Ideally, the evaluation and hearing regarding
the need for hospitalization would take place in the community.

(c) Voluntary Hospitalization Procedures

Every state allows competent adults to admit themselves voluntarily; a number of states permit juveniles over
age 14 or 16 to do so as well, without parental consent.267 Voluntary hospitalization has traditionally been
preferred over involuntary commitment because voluntary patients are presumably more motivated, and
because voluntary treatment is less stigmatizing, more efficient, and more prompt than involuntary
commitment.268 In the past, about 50% of the population in public mental health hospitals was
“voluntary.”269 That percentage dropped significantly in the 1990s, for fiscal reasons and because of a need to
provide beds for individuals referred to mental hospitals from the criminal system. Nonetheless, a significant
number of patients still enter hospitals under the “voluntary” label.
The quotation marks are necessary because many so-called “voluntary” admissions may not be. A number
of states allow “informal admissions” triggered by oral requests; these can be terminated upon request as well,
unless the hospital staff decides at the time of the discharge request that the person meets the involuntary
commitment criteria. Very few “voluntary” patients are in the hospital informally, however. Rather, they are
there because they signed a written request for admission, or because they were offered and accepted the
voluntary option at a commitment hearing. Research indicates that many people in the latter categories either
do not understand the consequences of their action or were “cajoled” into taking it by the threat of involuntary
commitment;270 some of the most sophisticated research on this issue, conducted by the MacArthur Research
Network on Mandated Treatment, reported that some voluntary patients felt a high degree of coercion during
the process of “accepting” hospitalization.271 Furthermore, a person hospitalized under the formal voluntary

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admission procedure may (depending on the state) be detained for several days even after asking to leave,
while the psychiatric staff decides whether to initiate involuntary commitment proceedings.
As noted earlier, in Zinermon v. Burch,272 the Supreme Court called into question the practice of
“volunteering in” a person who is not competent to make treatment decisions. Instead, the Court suggested, a
person who lacks such capacity should only be hospitalized if he or she is shown to meet the criteria for
involuntary commitment at a full hearing. Zinermon has been criticized to the extent that it imposes
involuntary commitment proceedings on clearly ill patients who express some willingness to be
hospitalized.273 Many “voluntary” patients do not understand features of voluntary admission,274 and thus
would require involuntary commitment hearings under Zinermon. Further, as we discuss below, empirical
study of these hearings reveals that they are often pro forma exercises in which little effort is expended on the
respondent’s behalf. These facts, together with the perceived advantages of voluntary treatment listed above,
led the American Psychiatric Association to recommend that an assenting patient be accepted as a voluntary
admission if he or she understands two simple items of information: that he or she “is being admitted to a
psychiatric hospital or ward for treatment, and . . . that release from the hospital may not be automatic.”275

10.05. THE EFFECTS OF COMMITMENT LAWS AND COMMITMENT

Although rights-oriented reforms of commitment laws seemed radical in the 1960s and 1970s, the changes
they wrought actually were quite moderate. The title of Paul Appelbaum’s book on the topic, Almost a
Revolution: Mental Health Law and the Limits of Change, captures the point.276 As noted in the preceding
section, treatment- and rights-oriented statutes have many similarities; the major formal difference is when
judicial review takes place. More important, the practical impact of rights-oriented statutes has been modest,
as this section explains.

(a) Frequency of Commitment

As noted in § 10.02(a), the number of people hospitalized in state facilities has fallen strikingly since the
1950s, the result of financial incentives, better treatment, and changed treatment philosophies.277 One might
assume that changes in civil commitment laws also contributed to this decline. But a number of studies
suggest this was not the case. At most, the research suggests, the typical rights-oriented change merely has a
short-term effect.278
In one of the best-designed studies on this topic,279 Luckey and Berman examined the effects of the
Nebraska Mental Health Commitment Act.280 Although the Nebraska law has some unusual provisions,281 it
is a particularly comprehensive, rights-oriented statute. Luckey and Berman found that the statute had merely
a transitory effect on the number of commitments. Within 18 months after passage of the law, the total
number of commitments had returned to the pre-reform level, based on admission trends prior to enactment
of the law. Indeed, much of the initial decrease may have resulted simply from the need for time to implement
the new commitment system. Corroborating this interpretation is the fact that the decrease was largely
specific to rural counties, where the necessary professionals were in short supply. A more recent study
conducted in New Jersey produced similar results.282

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 Further evidence that changes in the law are not the primary reason for changes in commitment practices is
provided by the fact that the frequency of hospitalization, as opposed to the number hospitalized at a given
time, actually increased between 1955 and 1980, when the legal reform movement was at its peak.283 In view
of mental health professionals’ traditional tendency to err on the side of caution (i.e., by wrongly calling
someone dangerous rather than missing an actually violent individual),284 one could assume that rigorous
cross-examination in commitment proceedings would produce a drop in the number of commitments. That
such a drop has not occurred suggests that the tighter standards and procedures required by the revised
commitment statutes had little impact on whether hospitalization occurred. Studies of commitment hearings
themselves, to which we now turn, confirm this interpretation.

(b) Commitment Criteria

The dangerousness standard was meant not only to narrow the scope of commitment, but also to focus the
commitment inquiry on the normative issue of when the state may deprive someone of liberty, rather than the
clinical issue of whether a person needed treatment. Accordingly, one might predict, commitment decisions
under the new laws would reflect considerations related to freedom as well as psychopathology. Yet, in
general, clinicians’ opinions as to committability are usually dispositive, regardless of the legal standard to be
applied. Studies indicate that rates of agreement between clinicians’ conclusions and factfinders’ decisions fall
between 90 and 100%.285 This evidence suggests, although it does not prove, that adherence to the supposedly
narrower substantive criteria imposed by commitment has not been uniform.
Also supporting the proposition that the dangerousness criterion has had little restricting effect in practice
is research suggesting that the movement in some jurisdictions to a pure parens patriae model, using a need-
for-treatment or predicted-deterioration, did not substantially increase the size of the population subject to
commitment (although this finding has not always been replicated).286 Several studies show too that need for
hospitalization is often assumed without critical application of the least-restrictive-alternative concept.287 In
short, the substantive criteria meant to limit unnecessary deprivation of liberty, far from “criminalizing”
commitment,288 appear to be neglected because of a Parham-like conceptualization of the civil commitment
decision as medical or psychological rather than legal.

(c) Procedures

Adversary procedures appear to enhance individuals’ perceptions about whether justice has been served,289 and
all commitment statutes endorse such procedures, at least at the hearing stage. Yet substantial empirical
evidence demonstrates that adherence to proper legal procedure during civil commitment is typically lax, no
matter what the statutes say.290
Consider the following data, both self-report and observational, from a study of the Iowa process.291
Three-fourths of the referees and clerks of court surveyed acknowledged that commitment hearings were
usually not adversarial. Defense attorneys requested an independent mental health evaluation (available by
right under the statute) in fewer than 1% of cases, and they rarely called more than two witnesses (often
none). Most defense attorneys failed to put the respondents on the stand. One attorney even reasoned that to

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do so would risk respondents’ persuading the referees that they had no mental illness! Consistent with their
lack of active participation in the hearings, the attorneys uniformly spent less than two hours in preparation of
these cases.
For their part, the referees encouraged passivity on the part of defense attorneys. Some referees expressly
discouraged cross-examination of witnesses; if questions were to be asked, the referees themselves would ask
them. The result was that a commitment hearing was usually little more than a stamp of approval for the
attending physician’s opinion. In fact, a change in treatment plan from that which the hospital physician had
recommended was observed to occur in fewer than 1% of cases. Referees and attorneys generally agreed that
clinicians should decide whether the elements of the standard for civil commitment had been met, and if so,
what the conditions of treatment should be.
These types of findings are echoed in several other studies. Virtually all found that attorneys rarely act in an
adversarial manner during commitment hearings; indeed, they often assist the state in its task of proving
committability.292 Although many of these studies are decades old, recent looks suggest that little has
changed.293

(d) Did the Reforms Fail?

Did commitment reforms of the 1970s “fail”? Some have suggested that they did, and that the failure resulted
from a wide array of factors. Probably the principal reason given is that, regardless of the risk actually posed by
a respondent, clinicians and lawyers continue to believe that simply having a mental illness should result in
hospitalization.294 Other factors include a willingness to err on the side of commitment in close cases due to
safety or liability concerns,295 pressure from families to have their disturbed relatives confined,296 rising
unemployment rates,297 and the cognitive impact of terrorist attacks.298
However, the view that the reforms had no impact on commitment should be resisted. Although
hospitalization rates began to fall before these reforms went into effect, the rights-oriented perspective on
involuntary treatment may have played some role in the enormous drop in the average length of stay in state
hospitals,299 and it certainly increased appreciation of patients’ human rights.300 Furthermore, studies from
the 1980s found that clinicians’ judgments about whether to initiate commitment proceedings were consistent
with statutory requirements.301
Some of these studies also indicated that commitments may have occurred not because statutory criteria
were ignored, but because clinicians were taking into account other factors, such as patients’ amenability to
treatment, their own individual inclinations, the evaluation setting, and the availability of beds or other
outside resources.302 Research from the past two decades emphasizes this last factor: The availability of
reasonable alternatives to hospitalization is a major influence on decisions about detention, both in the United
States303 and in European countries with similar commitment requirements.304 This research suggests that,
independent of statutory language, decisions to pursue involuntary hospitalization are likely to be significantly
reduced when comprehensive community services and sources of social support for individuals undergoing
mental health crises are available.305
Civil commitment laws can work as intended when legal authorities take their obligations seriously.306
Although such an orderly, responsible approach may require careful engineering of the civil commitment

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system as a whole,307 it is clearly appropriate.

(e) The Questionable Benefit of Hospitalization

The influence of alternatives to hospitalization on commitment practices is consistent with research about the
effectiveness of those alternatives. In 1982, Kiesler reviewed all the existing experimental comparisons of
hospitalization and alternative care.308 The ten studies used various interventions and outcome measures, yet
came to consistent conclusions:

[F]or the vast majority of patients now being assigned to inpatient units in mental institutions, care of at least equal impact could be
otherwise provided. There is not an instance in this array of studies in which hospitalization had any positive impact on the average patient
care investigated in the study. In almost every case, the alternative care had more positive outcomes. There were significant and powerful
effects on such life-related variables as employment, school attendance, and the like. There were significant and important effects on the
probability of subsequent readmission. Not only did the patients in the alternative care not undergo the initial hospitalization but they were
less likely to undergo hospitalization later, as well. There is clear evidence here for the causal sequence in the finding alluded to earlier that
the best predictor of hospitalization is prior hospitalization. These data across these 10 studies suggest quite clearly that hospitalization of
mental patients is self-perpetuating.309

Moreover, in no study was alternative care found to be more expensive than hospitalization.310
Kiesler did not say that available research showed that no one should be hospitalized.311 Specifically, for
those who are truly imminently dangerous to self or others,312 a good inpatient unit may be the wisest setting
for treatment, and for some chronically ill and severely impaired individuals, hospitalization may be the best
choice.313 Nonetheless, Kiesler’s article and subsequent studies314 make an important case against considering
hospitalization to be the presumptive best choice. For many individuals who need urgent and intensive
psychiatric care, other, less restrictive alternatives will provide the treatment they need. Moreover, that care
may well be less expensive, even with the shorter hospital stays that occur today.315 Indeed, partly because of
concerns about cost containment, obtaining needed hospitalization is often the more pressing issue today.316
Nonetheless, when combined with the literature on decisionmaking in civil commitment proceedings, the
research on the questionable benefits of hospitalization implies that mental health professionals should
exercise great care in evaluating persons for possible civil commitment. The research on process indicates that
clinicians’ opinions are often dispositive. The research on hospitalization indicates that the harm that might
result from keeping people in the hospital is as important a consideration as the harm that might result from
releasing them, and that inpatient care will not always be the least restrictive effective alternative. Thus
clinicians have a special ethical obligation to inform factfinders of possible alternatives to involuntary
hospitalization and their relative efficacy. Furthermore, lawyers as well as clinicians should go into
commitment proceedings with their eyes fully open to how the process is likely to work and to the reality of
state and community hospitals. Those considerations should inform how they carry out their roles during
commitment—a subject to which we now turn.

Problem 10.1

Based on the foregoing discussion, construct an “ideal” civil commitment system in terms of the
appropriate (1) substantive criteria, (2) procedural rules, and (3) facilities.

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 10.06. ATTORNEY’S ROLE

The respondent’s attorney holds primary responsibility for testing the reliability of any evidence supporting
civil commitment. Whether the proceeding acts as a check on state power will turn largely on whether the
attorney assumes an adversarial stance. Indeed, civil commitment standards are mere words unless attorneys
behave in an adversarial fashion.317
Yet significant difficulties inhere in adopting such a stance. Some lawyers do not appreciate the legal–moral
aspects of civil commitment, and they may feel mystified by the clinical phenomena presented to them. Even
when attorneys are neither naive nor lackadaisical, they may find judicial resistance to the adversarial stance.
Perhaps most problematic, the mental health attorney has no clear ethical mandate. In American
jurisprudence, attorneys are supposed to be “zealous advocates” of their clients’ wishes.318 Although this canon
of professional responsibility may at times be a legal fiction,319 it guides lawyers’ conceptualizations of their
role in most circumstances. Mental health cases often raise doubts about this canon, however. Should a lawyer
zealously advocate the wishes of a client who thinks and behaves irrationally? What are such a client’s real
interests? In this context, the American Bar Association’s (ABA’s) Model Code of Professional Responsibility
does not endorse a pure adversarial stance. It recognizes that

the responsibilities of a lawyer may vary according to the . . . mental conditions of a client. . . . Any mental or physical condition of a client
that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. . . . If a
client under disability has no legal representative [a guardian], his lawyer may be compelled in court proceedings to make decisions on behalf
of the client.320

However, the Model Code still retains a preference, albeit ambivalent, for an adversarial rather than a best-
interests approach in commitment cases. Other ethical formulations, including the ABA’s more recent Model
Rules of Professional Conduct, do so as well.321 According to the ABA Rules, if the client can understand the
matter in question, the lawyer should obtain from him or her all possible aid, regardless of other impairments.
If the disability of the client and the lack of a legal surrogate decisionmaker compel the lawyer to make
decisions for the client, the lawyer should consider all circumstances then prevailing and act with care to
safeguard and advance the interests of the client.322
In light, then, of both the stakes involved and ethical precepts, we believe that the attorney should advocate
the client’s wishes and avoid acting as a guardian or an amicus (an attorney for the court) would. Only when
the client is unable to express a preference, or expresses clearly irrational wishes, should the attorney consider
what others perceive as the client’s best interests, and even then these views should not be dispositive. Those
authorities—among them, those who promote “therapeutic courts” [see § 2.04(e)]323—who have argued that
attorneys for allegedly mentally disordered persons should always act as paternalists have ignored the reality
that the civil commitment system requires advocates for the respondents if it is to work at all. They have also
minimized the risk of harm resulting from inappropriate involuntary hospitalization, as well as the possibility
that an adversarial process may be therapeutic for the respondent and the family.324
We do not mean to imply, however, that an attorney must necessarily pursue “getting the client off” with
single-minded zeal (unless a competent client so directs). Rather, as with most legal issues,325 the attorney’s
job lies in testing the case against his or her client and bargaining for the best possible resolution in light of
the client’s desires. This process has different components prior to, during, and after the commitment hearing.

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 Wexler provides a terse summary of minimal work required for effective representation by counsel prior to
the hearing:

The attorney should make a thorough study of the facts of the case, which should include court records, hospital records, and information
available from social agencies. Communication with the patient is, in the ordinary case, a must. The family and friends of the patient should
also be contacted to ascertain the true facts behind the petition. It is essential that the attorney have a full understanding of the events
preceding the filing of the petition. An investigation of the financial condition of the patient and his family—including their hospitalization
insurance—is necessary to determine if certain alternatives to hospitalization should be explored. Finally, the attorney should explore the
treatment and custodial resources of the community, should understand the various services offered by social agencies, and should know the
avenues by which these resources can be applied to meet the needs of the client as alternatives to involuntary commitment.326

Admittedly, accomplishing these tasks will take considerable time and energy. But if time is needed, the
attorney can ask for a continuance (assuming that the client agrees). A vigorous pretrial effort not only will
assure a well-prepared case, but may also result in a “settlement,” obviating the need for a hearing.
If a hearing is held, advocacy should also be vigorous. Cross-examining a mental health professional may
be difficult for an attorney who is not trained in mental health, but not more so than in the criminal or tort
context. In addition, relatively simple questions designed to elicit from the doctor why the client is believed to
be mentally ill or dangerous can have a surprising effect on the course of the hearing. In justifying the opinion,
the expert will have to divulge whether his or her conclusions are based on hearsay and to what degree
conclusions are “gut reactions” versus scientifically grounded conclusions. Giving the expert a list of outpatient
facilities and asking why each is not a feasible treatment alternative may also prove beneficial. Moreover, many
mental health professionals appreciate capable representation of respondents. Such representation takes the
onus off clinicians, who often come away from civil commitment hearings feeling that they were the only
professionals present concerned about the respondents’ civil rights.
Pursuing a case after the hearing—either through the occasional appeal or, if the court orders outpatient
treatment, through monitoring the client’s compliance—is a further important element of advocacy. When
judges know that their decisions may be reviewed by a higher court, they may devote more effort to meeting
their obligations under the commitment statute (although an appeal may be viewed as “moot” when the
patient/client has been released pending the appeal). Follow-up of the client by the attorney may also ensure
that treatment is received and make a recommitment petition based on noncompliance less likely.
A more detailed analysis of the commitment attorney’s obligations can be found elsewhere.327 What is
needed is a means of alerting the legal community to these obligations. A forceful approach to the problem is
through legislation. The state of Arizona, for example, has provided that counsel for a defendant in a
commitment hearing must perform certain duties or be subject to a citation for contempt of court.328
Legislation could also raise attorneys’ fees and provide funds for independent psychiatric evaluations and other
expenses. In addition, courts can more rigorously monitor attorneys’ conduct during the commitment process.
For instance, in In re the Mental Health of K.G.F.,329 the Montana Supreme Court stated that ineffective
assistance of counsel standards developed in criminal cases should apply in the civil commitment context as
well, and concluded that “evidence that counsel independently advocated or otherwise acquiesced to an
involuntary commitment—in the absence of any evidence of a voluntary and knowing consent by the patient-
respondent—will establish the presumption that counsel was ineffective.”330 If the latter finding is made, the
court continued, the commitment should be vacated.

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 Underlying the foregoing discussion is the assumption that counsel can improve the fairness of the
commitment process and reduce the factfinder’s tendency to rely solely on expert clinicians, by ensuring that
the evidentiary bases for and against commitment are adequately developed. This adversarial role of counsel is
fundamental to ensuring that the rights-oriented commitment statutes accomplish the goals that led to their
adoption.

10.07. CLINICIAN’S ROLE

Throughout this book, we advise mental health professionals to avoid exceeding the limits of their expertise
and to do their best to refrain from invading the province of factfinders. We also emphasize that lawyers and
judges should not delegate their responsibilities to the clinicians.
Nowhere is this theme more pertinent than in civil commitment. Because of the deference usually given to
clinicians’ opinions in this context, mental health professionals bear much of the responsibility for staying
within the boundaries of their expertise. Clinicians should resist giving ultimate-issue opinions. Whether a
respondent is so ill and dangerous as to merit deprivation of liberty is a legal and moral decision, not a clinical
judgment. Whether a respondent is “dangerous” for purposes of civil commitment subsumes a series of legal
conclusions: the threshold determination of recent dangerous behavior, the range of behaviors that are
“dangerous,” the likelihood that the risk of danger will continue, and the confidence to be placed in that
determination of risk.
Rather than articulating conclusions, mental health professionals should describe respondents’ mental
states and behaviors, any associated risks of harm to self or others, and any treatment or other interventions
that may reduce identified risk. As we pointed out earlier [§ 10.03(c)], statutes generally frame a court’s
judgment about current risk in terms of the respondent’s recent past behavior.331 Yet clinicians may wish to
supplement their expert testimony about behavior and symptoms with actuarial data relevant to future risk of
harm and with information about violence-enhancing and violence-reducing factors [see § 9.09(c)(7) and the
J. Marlar report, § 19.06(a)]. As always, clinicians should acknowledge the limitations of their opinions; this is
an especially important admonition in the civil commitment context, where their opinions have a great impact
on the ultimate decision.
Clinicians who know that hearings in their jurisdiction are quick and perfunctory, and that attorneys for
respondents usually do little or no preparation for hearings, may ask themselves, “Why bother to do a good
job?” Yet, as Pinals and Mossman recommend, clinicians in commitment proceedings should still “strive to
provide cogent, relevant, thoughtful, and effective testimony whenever they testify.”332 These authors offer
several reasons for taking this position, including the following:

It pays to be prepared. Even where courts typically rubber-stamp clinicians’ judgments, an occasional
respondent’s attorney will sincerely contest commitment. If a respondent has a serious mental illness and
poses a risk, being unprepared will do the respondent and the community a disservice.
When they testify, mental health professionals do more than provide evidence about a single respondent.
They also reveal much about their own competence and attitudes, and about what their profession stands
for. Poor testimony can leave court personnel, and (especially) the respondent who is still to receive care,

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 with a bad impression of the expert’s abilities and of mental health professionals in general.
Good testimony can be beneficial. As we have pointed out earlier, respondents may be more prone to feel
that their legal proceedings were fair when their positions have been heard and treated respectfully, even if
the decision goes against them.
Civil commitment temporarily deprives respondents of their most precious right: their freedom. Clinicians
should care about their patients’ rights, particularly when they act to curtail them, and they can show that
they care by providing clear, thoughtful testimony.
Sometimes a respondent should not undergo further involuntary hospitalization. This often happens
because the circumstances that justified emergency detention have changed—for example, the respondent
has improved with just a few days’ hospital care (consider Case Study 10.1). Clinicians can help the
factfinder understand these situations if they provide a clear, convincing explanation for such
phenomena.333

Mental health professionals may also serve as consultants to attorneys in exploring alternatives to
commitment and examining the reliability of evidence supporting commitment. Indeed, where legal aid
programs are responsible for civil commitment representation, their effectiveness would probably be enhanced
by having consulting clinicians on their staffs.334 When such “in-house” professional consultation is not
provided, attorneys for indigent respondents should be allowed to select independent mental health
professionals to examine their clients and to assist in identifying possible alternative forms of treatment [see §
4.03(b)(1)].335 The assistance of an independent expert may be very important in developing lines of defense
against commitment (e.g., possible less restrictive alternatives). Perhaps most important, a “second opinion”
might reduce the probability of an erroneous commitment based on unquestioning acceptance of a lone
expert’s opinion. In short, justice might well be served by a “battle of the experts” in commitment cases.

10.08. COMMITMENT EVALUATION

As discussed in § 10.03, the typical commitment evaluation involves an assessment of a person’s mental
condition and treatment needs; risk of harm to self or others; and ability to function safely outside the hospital
or in some less restrictive alternative.

(a) Mental Illness and Need for Treatment

The first aspect of the evaluation resembles a typical clinical assessment. The examiner must determine
whether the respondent has a mental disorder that qualifies as “substantial” under the jurisdiction’s statute,
and if so, how it might be treated. In making such judgments, examiners will probably find their usual
armamentarium of clinical assessment techniques appropriate. Perhaps the key distinction between a regular
evaluation for development of a traditional treatment plan and an evaluation of mental disorder for civil
commitment arises from the fact that the latter contemplates involuntary treatment, which creates special
obligations for care and certainty given the invasion of liberty. Hence the content of this part of the evaluation
may be typical, but the attitude of clinicians should not be. As recommended earlier, clinicians should note
the points of uncertainty in their diagnoses, the possible alternatives for treatment (including no treatment),

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and the probable levels of efficacy of each.
Some states include in the definition of mental disorder a requirement that the individual lack capacity to
make treatment decisions. In § 11.03(d), we describe several instruments that might guide the determination
of this capacity. Also relevant in this regard is the problem many people with serious mental illness have in
recognizing that they suffer from an illness.336 Despite what some clinicians believe,337 however, neither
serious illness nor lack of insight is dispositive of the legal issue. Unless an individual cannot understand or
appreciate the risks and benefits of treatment, or denies objectively verifiable facts about his or her mental
condition, the person should generally be considered competent.

(b) Dangerousness to Self

Several publications discuss evaluation of risk for suicide attempts and their appropriate clinical assessment.
The following discussion follows the American Psychiatric Association’s most recent practice guidelines for
evaluating adults.338

Any psychiatric evaluation should include an assessment of: current and past suicidal thoughts, plans, and
attempts; intentional self-injury without suicidal intent; anxiety symptoms, including panic attacks;
hopelessness; impulsiveness; current or recent use of alcohol and drugs; psychosocial stressors such as
problems with finances, housing, and interpersonal relationships; mood, anxiety, and thought processes;
past treatment; and past trauma.
Someone who reports current suicidal thoughts should be assessed regarding the following: intended
course of action if current symptoms worsen; access to suicide methods, including firearms; possible
suicide motives (e.g., shame, humiliation, psychotic experiences); reasons for not committing suicide (e.g.,
one’s children or religious beliefs); suicidal behaviors in biological relatives.
For someone who reports prior suicide attempts, the clinician should assess details of each attempt, such as
context, intent, method, harm done/damage, potential lethality, and intent.
Finally, the clinician should document an estimate of the person’s suicide risk and risk factors.

In making these recommendations, the American Psychiatric Association comments that they are neither
“a comprehensive set of questions relating to suicide risk assessment, nor should they be seen as an
endorsement of a checklist approach to evaluation.” Many efforts to develop scales to evaluate suicide risk
have been studied. Although these scales may help clinicians be more thorough in their interviews than they
would otherwise be,

no scale has been shown to provide a numerical score with clinically useful predictive value . . . [and] no study has shown an ability to use
population-based risk factors or combinations of those risk factors to accurately predict patients who die by suicide . . . Accordingly,
estimation of an individual patient’s risk for suicide is ultimately a matter of clinician judgment.339

Given this conclusion, the Practice Guidelines suggest, the clinician’s most useful role in a commitment
proceeding is to identify risk factors, including those that treatment will not modify (e.g., financial
circumstances) and those that treatment might alleviate over the short term—matters such as “psychosis,
mood changes, hopelessness, insomnia, irritability, agitation, aggressive behaviors, and increases in substance

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use.”340 This information can help with treatment planning and provide the potential rationale for involuntary
treatment aimed at lowering the risk of self-harm.
In analyzing risk and protective factors, the testifying clinician should be particularly attentive to third-
party information obtained from previous records and from interested and available informants—family
members, friends, and other persons who make up the patient’s social network. Assessments conducted in the
context of civil commitment are usually precipitated by behavior and events—often memorialized in a
commitment petition filed by a friend, family member, or law enforcement officer—that provide reasons to be
very concerned about the respondent’s potential for self-injury and the need for treatment. Clinical testimony
that links such information to scientifically grounded risk factors can clarify why the person needs mental
health care and why such care has the potential to reduce the risk of self-harm. Third-party contacts may also
be important as a means of identifying (1) situational factors that contribute to suicide risk (e.g., job loss or
loss of a loved one); (2) the respondent’s typical personality and functioning, together with co-occurring
problems such as substance use;341 and (3) potential less restrictive alternatives to hospitalization and to
posthospital arrangements. The latter type of information is particularly important, given the fact that the risk
for suicide varies with the availability of needed support systems outside the hospital.342
Inpatient commitment normally provides the highest degree of supervision and treatment with the lowest
morbidity. But the disadvantages of inpatient placement can include reinforcement of dependency, increased
stigma, and potential isolation of the patient from contributing stressors that might more effectively be dealt
with through outpatient treatment.343 Although outpatient commitment probably minimizes these problems,
it has disadvantages of its own, including safety risk and increased burden on those called on to provide extra
support to the individual.344 Kalafat and Underwood direct that when clinicians are considering outpatient
intervention as an alternative to the hospital for potentially suicidal individuals, they should carefully assess the
environment to which the individuals may be released, including the availability of treatment providers and
the extent to which others can be expected to be actively involved in monitoring.345

(c) Grave Disability/Inability to Care for Self

A logical extension of the criterion of dangerousness to self is inability to care for self: Inability to provide for
one’s basic needs is ultimately no less dangerous than actively self-destructive behavior. As noted in §
10.03(e), some statutes combine these two factors into one prong of the civil commitment standard,346
whereas others have adopted a separate provision (sometimes together with special procedures) for civil
commitment based on “grave disability.”347 The latter standard requires identification of the particular survival
skills the person has, as well as any means of protecting him- or herself that might be less restrictive than
hospitalization.
When this issue arises in the commitment context, clinicians’ abilities to make judgments are limited. First,
information about symptoms and diagnoses alone says little about the significance of a respondent’s disability,
because people with the same symptoms and diagnoses can differ radically in how well they care for
themselves and meet basic needs. Second, the context of the evaluation limits the data-gathering process.
Researchers have developed standardized techniques for specifically assessing competence to live safely in the
community [discussed in § 11.02(b)(2) in connection with guardianship, which raises issues virtually identical

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to those raised by the inability-to-care-for-self criterion]. But commitment assessments usually take place in a
hospital or crisis stabilization unit—an environment radically different from that in which the respondent
ordinarily functions (recall Case Study 10.1). Furthermore, self-reports on these issues from acutely
symptomatic clients may be unreliable. Therefore, the key sources of information about respondents’ self-
preservation and survival skills will once again usually be third-party informants from the community (e.g.,
family members, friends), who have observed and can describe to the clinicians (or, preferably, to the court
directly) the respondents’ abilities in this regard.
Whether developed by the clinician or provided by third-party informants, some types of behaviors relevant
to a respondent’s grave disability clearly “speak for themselves.” Relevant, for instance, would be evidence that
the respondent recently failed to obtain food and store it properly; has such confused and disordered speech
that he or she cannot make needs known or negotiate purchases; is too disoriented to navigate independently
in the community; or has been living in squalor. A thorough description of such impairments and of their
likely consequences to well-being if left unchecked, combined with a description of how symptoms of a
mental disorder (rather than poverty or some other external circumstance) explains these impairments, is all a
clinician will usually have to offer on these matters.

(d) Dangerousness to Others

Assessing the risk of harm to others in the civil commitment context is superficially similar to assessing
dangerousness at sentencing [see § 9.09], and we refer readers to that portion of this book for a detailed
discussion of the empirical correlates of violent behavior and the methods of evaluating danger to others. But
the commitment context is distinguishable from other contexts in which clinicians evaluate danger to others in
several respects.
First, the time and resources available to clinicians are often more restricted in the commitment setting. In
presentencing or post-insanity-acquittal evaluations, defendants are likely to be in custody for a considerable
period prior to disposition, which allows clinicians to obtain prior hospital records, examine police reports
related to current and/or prior offenses, read presentencing reports, and track down potential third-party
informants. In contrast, petitions in support of commitment must be completed within a short (usually 72-
hour) time. Even with modern communication technology, obtaining and reviewing all of the desired archival
documents may not be possible. Thus, in assessments for involuntary hospitalization, practical constraints may
limit clinicians’ ability to develop the optimal database for risk assessment.
Second, the legal issues at commitment are different in ways that facilitate and, arguably, simplify the risk
assessment. Most notably, as noted in § 10.03(c), civil commitment is premised on present risk of harm
evidenced by recent behavior that is attributable to the respondent’s mental illness. In this context, the
extensive archival and historical information necessary in long-term risk assessments may not even be relevant.
Insight into characterological contributors to aggression (e.g., psychopathy) is not as important as
understanding whether recent aggression has occurred and can be reasonably attributed to current, active
symptoms of mental disorder. Distant historical factors (e.g., multiple prior offenses) will not be as significant
as recent overt acts, which in most states are the required focus of a commitment evaluation [see § 10.03(c)],
and which will often be described in the commitment petition.

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 With this framework of short-term risk in mind, the clinical inquiry in the typical case (such as Case Study
10.2) should assess feelings or attitudes toward persons in the respondent’s usual social environment, along the
lines suggested in § 9.09(c). Pertinent inquiries would include questions regarding (1) anger or revenge
motives; (2) perceptions (particularly psychotic ones) endorsing the belief that someone in the respondent’s
environment poses a threat to the respondent; (3) plans for or recent behavior displaying efforts to strike
against the perceived sources of these threats; (4) grandiose beliefs or other delusions that might logically lead
the respondent into conflict with others; and (5) other intentions to harm others for any reason. Although (as
stated previously) archival data are not as important in this context, such data should be reviewed if available,
to determine whether historic behavioral antecedents might help gauge the likelihood of future violent
behavior. Monahan’s questions (see Table 10.1) can provide an organizational framework for all of these
issues.

TABLE 10.1. Assessing Violence Potential for Purposes of a Civil Commitment Hearing
What events precipitated the question of the person’s potential for violence being raised, and in what context did these events take place?
What are the person’s relevant demographic characteristics?
What is the person’s history of violent behavior?
What is the base rate of violent behavior among individuals of this person’s background?
What are the sources of stress in the person’s current environment?
What cognitive and affective factors indicate that the person may be predisposed to cope with stress in a violent manner?
What cognitive and affective factors indicate that the person may be predisposed to cope with stress in a nonviolent manner?
How similar are the contexts in which the person has used violent coping mechanisms in the past to the contexts in which the person likely
will function in the future?
In particular, who are the likely victims of the person’s violent behavior, and how available are they?
What means does the person possess to commit violence?

Note. Adapted from J. MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR (1981).

Readers should note that this discussion has referred to identifying, describing, and judging risks, rather
than “predicting” violence. In general, a court that properly evaluates whether a respondent poses a risk to
harm others should focus on (1) recent actions (including threats); (2) the connection (if any) of those actions
to a substantial disorder that grossly impairs judgment, behavior, or ability to recognize reality; and (3)
whether that disorder persists and thus implies a continuing risk of harm. Thus a clinician who focuses on
making “predictions,” particularly yes-or-no, categorical predictions, misperceives the task at hand. Instead,
keeping in mind information about risk-enhancing factors and about the recent or intended behavior that
suggests aggression, clinicians in the civil commitment context should merely provide descriptive formulations
—analogous to the formulations of mental state at the time of the offense developed in insanity defense cases
—that aid the judge in deciding whether the legal threshold for “danger to others” has been met.

10.09. THE PROCESS OF THE EVALUATION

Beyond understanding the content of the evaluation, clinicians should also be aware of certain factors that can
affect the process of the evaluation. Some of these factors are legal and vary from jurisdiction to jurisdiction,

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whereas others are likely to affect any evaluation, regardless of location.

(a) The Right to Silence

We have suggested that the civil commitment hearing should be adversarial. This assumption raises the
question of whether the respondent may be compelled to submit to an evaluation that might reveal
“incriminating testimony.” As noted in § 4.02(d), the majority view, now firmly supported by the Supreme
Court, is that the Fifth Amendment is not applicable to civil commitment.348 Usually, however, this holding
has been based on a conclusory statement that the Fifth Amendment is applicable only to criminal
proceedings. This pat conclusion is belied both by cases that apply the Fifth Amendment in noncriminal
proceedings,349 and by a more thoughtful analysis of the purpose of the privilege against self-incrimination. In
a truly adversary system, some lower courts have held, the state should not be permitted to use “legal process
to force from the lips of the accused the evidence necessary” to deprive him or her of liberty.350
Even if the Fifth Amendment is not applicable to civil commitment, both ethical and strategic issues
should be considered in determining whether a respondent should be compelled to speak to an evaluating
mental health professional. First, a clinician who evaluates a respondent solely for purposes of future
testimony during commitment (as opposed to treatment) should attempt to inform the respondent of the
evaluation’s purpose and the associated limits on confidentiality [see § 4.05(d)].351 In a situation such as
emergency detention, where the individual is in fact compelled to appear if not to talk, the clinician should
also explain any sanctions present in that jurisdiction for noncooperation [see § 4.02(d)].352
Second, under some circumstances counsel for the respondent may advise the client not to talk, even when
there is no Fifth Amendment privilege in civil commitment proceedings. Particularly in jurisdictions with
“overt act” requirements, the defense might want to force the state to develop the evidence from witnesses and
other sources, because such evidence might later be used in criminal proceedings. However, the attorney
considering such a tactic should be aware that silence itself, as well as other uncooperative behavior, may be
perceived as indicative of pathological interpersonal relations—especially in jurisdictions in which no right to
silence applies. Also, when the client has been detained for observation, it is practically impossible to maintain
silence over the course of the stay in the inpatient setting.

(b) The Right to Assistance of Counsel

Although the presence of counsel for the respondent is required during the commitment hearing itself,353 in
some jurisdictions counsel will not be assigned until late in the process.354 This fact makes it especially
important for mental health professionals to inform respondents about what is happening or potentially going
to happen, their rights during the process,355 and the means of obtaining counsel if it is desired. Even if not
legally required,356 careful documentation of clinical interviews may be advisable to provide attorneys who are
eventually appointed with a basis for competent cross-examination of the examining mental health
professionals [see § 4.03(a)].

(c) The Context of Civil Commitment Evaluations

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Forensic clinicians must always be aware of their “double-agent” status [see Chapter 4]—a status starkly raised
in civil commitment. Especially in the case of parens patriae commitments, clinicians may perceive their
participation as being for the respondent, in that hospitalization is a necessary part of the respondent’s
treatment. Indeed, the clinician who testifies at civil commitment is often the one treating the respondent. Yet
clinicians should recognize that supporting civil commitment makes them participants in a process through
which the state may deprive respondents of their liberty. Given these concerns, clinicians who have provided
treatment, even if only temporarily, should avoid the testimonial role [see § 4.05(c)], although we realize that
in practice such niceties are difficult to observe.
Mental health professionals involved in “prescreening” for civil commitment, a statutorily required step in
some jurisdictions [see § 10.04(a)(1)], should also be mindful of their role as gatekeepers and should remain
cognizant of community resources. “Prescreeners” may be crucial actors in ensuring continuity of care.357 If a
respondent is in fact committed, the prescreener should ensure that necessary background information is
transmitted to the receiving hospital, and that steps are taken to initiate liaison with community clinics for
eventual aftercare.
Finally, clinicians doing commitment evaluations should remember that they are often seeing respondents
under especially strained circumstances. For example, an irate family member of a respondent may have
summoned the police after a domestic squabble, and the police may have forcibly brought the respondent to
the emergency room. Such a situation is almost guaranteed to elicit disturbed behavior. Clinician should try to
identify and reduce stress-induced sequelae of the evaluation itself. Such thoughtfulness is necessary for
maintaining the reliability and validity of assessments, as well as for providing humane care.

10.10. SPECIAL COMMITMENT SETTINGS AND POPULATIONS

The discussion in this chapter thus far has broad applicability to evaluations for civil commitment. But in
some special circumstances, the prevailing standards, procedures, or both may differ from ordinary civil
commitment. We briefly examine five such circumstances: (1) when the respondent is a minor, (2) when the
respondent is a jail or prison inmate, (3) when the respondent has been acquitted of a crime by reason of
insanity, (4) when the respondent has an intellectual disability, and (5) when the primary diagnosis is a
substance use disorder. Commitment may not always be denominated “civil” when the respondent is a jail or
prison inmate or has been acquitted of a crime by reason of insanity. We have included these situations here,
however, because the nature of the inquiry is usually similar to that in civil commitment and because of the
substantial interplay among the standards and procedures for civil and criminal commitment.

(a) Minors

At several points in this chapter, we have mentioned the Supreme Court’s decision in Parham v. J.R.,358
addressing the constitutional requirements when parents or guardians seek to “volunteer” their children or
wards for admission to mental hospitals. In brief, the Court held that the only process due a child in such a
situation is review of the child’s need for hospital treatment by the admitting physician, acting as a “neutral
factfinder.” But many states require more procedural protections than the constitutional minima announced in

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Parham.359 Therefore, lawyers and mental health professionals involved in hospitalization of minors should
take care to know the law in their own jurisdictions.360
As discussed in § 10.02(c), in determining that nonadversary, administrative procedures would adequately
protect minors’ constitutional interests, the Supreme Court relied on idyllic assumptions about the biological
families of mentally disordered children (as well as the “families” provided by state social workers), the
conditions of state hospitals, and the efficacy of administrative procedures. Several authors have described the
questionable nature of these assumptions.361 Suffice it to say that since well before Parham was decided, the
modal resident of state hospital facilities for minors has been a troubled and troubling, but not mentally ill,362
adolescent363 who is a ward of the state364 and has little or no support in the community.365
Much of what we have already said about the roles of lawyers and mental health professionals in civil
commitment of adults applies also to civil commitment of minors. The populations of residential facilities in
mental health, juvenile justice, social service, and special educational systems are to a large extent
interchangeable.366 Research has shown that hospital-based treatment of minors rarely helps,367 especially the
conduct-disordered youngsters who are sometimes sent to psychiatric facilities in lieu of juvenile correction
institutions.368 For many of these youth, an approach that is more “educational” than “medical” may be the
treatment of choice [see § 14.05(b)(3) and Chapter 17, on the Education Act]. Although hospitals are not per
se the most restrictive or intrusive settings for treatment, special care should be taken to ensure that minors are
not being “dumped” into hospitals because it is the easiest—not necessarily the best or the least restrictive—
thing to do with them,369 or simply because they have no advocates to watch out for them. The “investigative”
role of lawyers and clinicians in civil commitment thus assumes special importance in cases of minors.370

(b) Jail and Prison Inmates

Correctional facilities have two distinct subpopulations who may need mental health treatment. The first
consists of those who have been convicted and are being housed in jail or prison for the duration of their
sentence. The second consists of those who have not yet been subjected to adjudication.

(1) Inmates Convicted of a Crime

The stigma and intrusions on privacy involved in mental hospitalization seemed sufficiently great to the
Supreme Court that it held, in Vitek v. Jones,371 that prisoners are entitled to an administrative hearing to
determine the need for a transfer to a psychiatric facility. Inmates subjected to such hearings are also entitled
to the services of a “qualified and independent” advocate, but not necessarily a licensed attorney, to assist them
in the hearing.372 Vitek thus recognizes the residual liberty interests of prisoners in avoiding involuntary
mental health treatment, but it suggests that those interests can be protected with less procedural rigor than
required in civil commitment, and with a mere showing of a need for treatment.373
Some commentators have suggested that the Court did not go far enough in Vitek. They argue that equal
protection and due process demand that standards and procedures used in mental health commitment of
prisoners should be largely indistinguishable from those used in civil commitment.374 The ABA’s Criminal
Justice Mental Health Standards appear largely to endorse this view. The Standards provide for judicial

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commitment proceedings, with the prisoner having a right to legal counsel.375 However, only the threshold
prong of most civil commitment statutes (i.e., that the prisoner is “seriously mentally ill”) need be met for
transfer.376
It is not clear how broadly even the limited requirements of Vitek apply. For example, is a hearing
necessary before transfer to a “hospital” run by the department of corrections or to a psychiatric wing of a
regular prison?377 Is a hearing necessary if the transfer is only temporary?378 If an inmate believes that he or
she has been prematurely transferred back to the correctional setting, is there a right to a hearing on the issue?
379 Furthermore, as the ABA Standards recognize, ensuring that involuntary transfer is appropriate is a
secondary problem compared to the difficulty in obtaining treatment for an inmate who wants and needs it.380
Such treatment is probably required on both moral and constitutional grounds.381
Whether the proposed transfer is involuntary or voluntary, the clinical inquiry is similar. The clinician
should determine whether the inmate has a bona fide mental disorder, what his or her needs for treatment are,
and whether those needs can be met within the prison. Evaluating this last element requires the clinician to
know the services that are available within the correctional system (which are often woefully inadequate382)
and the particular stresses and demands of prison life.383
Although this type of evaluation shares many features of other assessments conducted for possible
commitment, certain aspects of it are unique to incarceration settings. The alternatives to hospitalization often
depend on the specific prison system and the specific prison, which implies that the ideal evaluator should
have some situation-specific knowledge about available dispositions (i.e., hospitalization vs. changes in
housing, observation levels, medication, or other therapy) and their likely effectiveness, risks, and benefits. In
some circumstances, a clinician’s involvement may begin in the context of a behavioral or emotional crisis, for
which efforts at deescalation or problem resolution may be the ostensible reason that the evaluation was
requested.384 The clinician working within correctional systems may also experience a variety of pressures,
emotions, and potential role conflicts peculiar to the penal environment. These can include staff members’
implicit or explicit wishes for a “clinical” resolution that will rid the institution (at least temporarily) of a
troublesome inmate; exasperation at what seems like misbehavior (e.g., smearing feces) that might cloud the
clinician’s assessment; temptation to ally with the prisoner and to intervene in matters properly managed by
security staff; and letting a desire to maintain collegial relationships interfere with an objective clinical
appraisal of diagnosis and treatment needs.385 A final set of considerations that distinguish prison-based
evaluations stems from mentally ill inmates’ vulnerability to predations by fellow incarcerees if left in prison,
and the safety risk posed to other inmates by those who have psychopathic personality problems in addition to
their serious mental illnesses.386

(2) Inmates Awaiting Trial

If persons sentenced to prison still have a liberty interest in avoiding involuntary mental health treatment,
then surely persons who are in jail awaiting trial have an interest analogous to that of respondents who are
living in freedom. Yet problems with managing difficult jail behavior often lead to use of relatively informal
competence-to-proceed procedures to get troublesome inmates to a state hospital, even when treating mental
illness promptly rather than restoring competence to proceed would be the proper clinical focus.387 As we

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have noted in § 6.03(c), in such instances the proper procedure would be to seek civil commitment rather than
to apply a ruse that is more convenient to carry out.388 This recommendation is based not only on protection
of inmates’ civil rights, but also on the practical reality that competence evaluations are a cumbersome and
inefficient way of arranging for treatment.
Regardless, a clinician asked to evaluate a defendant in jail for possible treatment needs should view the
assessment as a consultation in the strict sense. What might be done to stabilize the individual through the
crisis engendered by arrest and incarceration? With the cooperation of the attorneys and the court, minor
offenders might have their charges dismissed and be treated (involuntarily or voluntarily) in local facilities.389
Serious offenders who cannot make bond may have to be treated in jail, either by jail staff or by outside
professionals. Whatever route is taken, mental health professionals and jail staff should have compatible
goals.390 Mental health interventions in jails should be directed toward diversion or stabilization of inmates, in
an effort to ameliorate inmates’ symptoms and help the corrections staff run the jail more smoothly.

(c) Insanity Acquittees

A person acquitted by reason of insanity is usually committed automatically to a forensic unit for evaluation,
typically for 30–60 days, at which point a court decides whether the acquittee is mentally ill and dangerous. If
commitment occurs, the acquittee may be confined anywhere from six months to two years after the original
commitment until the next release hearing [see § 8.02(a)].391
For this type of commitment, the clinician is asked to provide an assessment relevant to the court’s
determination of whether the acquittee is mentally ill and/or dangerous.392 Although these questions are
similar, if not identical, to those posed in civil commitment proceedings,393 both standards and procedures for
criminal commitment often differ significantly from those in civil commitment. For example, the state must
prove by clear and convincing evidence that a civil respondent meets the commitment standard,394 but the
burden of proof may be shifted to the defendant in postacquittal commitment.395 Imminent danger may not
be required, the voluntary option will not be available, and the least-restrictive-alternative doctrine is less
likely to apply. Although release criteria might appear identical to those used in ordinary civil commitment,
more stringent criteria are actually applied to insanity acquittees.396 Furthermore, the release decision is
typically made by a different process and in a different forum—for example, by the judge who heard the
insanity trial rather than by a hospital administrator.397
These differences are based on two assumptions: that defendants acquitted by reason of insanity are
unusually dangerous (because they have committed violent acts, though not technical crimes), and that they
are mentally ill (because of their insanity pleas).398 However, these assumptions can be faulty. As to the first,
some defendants receive insanity acquittals for misdemeanor charges or charges that did not involve
allegations of violence;399 if so, the offense might not even qualify as the overt, dangerous act necessary for
civil commitment in many jurisdictions. Moreover, not all serious acts of violence (e.g., murder of one’s
spouse) imply that the individual is likely to commit another similar act. As to the assumption regarding
“continuing” mental illness, in jurisdictions in which an insanity acquittal can be based on a reasonable doubt
as to sanity,400 mental disorder may not be proven to the degree necessary for civil commitment. In addition,
of course, an acquittee’s mental condition may have improved markedly since the offense, either spontaneously

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or because of the treatment provided to render him or her competent to proceed.
Nonetheless, in Jones v. United States,401 the Supreme Court reaffirmed these twin assumptions about the
dangerousness and illness of acquittees. It held that any criminal act by a defendant “certainly indicates
dangerousness”402—even if, as in Jones, the act was attempted shoplifting of a jacket! The Court also
maintained that “it comports with common sense to conclude that someone whose mental illness was
sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment.”403 On the basis
of these assumptions, the Court sanctioned the automatic posttrial evaluative commitment described earlier,
and strongly implied that placing the burden of proof on the acquittee at the initial review hearing would be
constitutional. It also held that in virtue of the incapacitative and rehabilitative goals of criminal commitment,
defendants may constitutionally be required to remain in confinement until they can prove that they no longer
merit commitment, even though the maximum possible sentence for an individual’s offense of prosecution
may have long since passed.404
Jones did not directly address another important issue: whether an acquittee must be released if either the
mental illness or the danger finding no longer applies, or whether instead both must be shown to be absent. In
Foucha v. Louisiana,405 discussed in detail in § 9.04(b), four members of the Court concluded that proof of
dangerousness alone was insufficient to justify continued commitment; in other words, confinement may
continue only upon a showing of both mental disorder and dangerousness to keep the person confined.
However, Justice O’Connor, who provided a fifth vote for this general proposition, also stated that she would
be willing to create an exception to it in cases in which an acquittee had committed a violent offense and the
state could demonstrate “some medical justification” for continued confinement. Five years after Foucha, the
Court held in Kansas v. Hendricks406 that dangerous persons who have a “mental abnormality” or “personality
disorder” (terms that are extremely elastic) may be confined indefinitely even if they are not treatable.
Together, these holdings mean that in practice, dangerousness associated with any type of disorder may be
sufficient for commitment—although, consistent with Hendricks, the state may still have to show that an
individual is “dangerous beyond control” [see § 10.03(a)].
The focus of these evaluations is similar to the focus of civil commitment evaluations. But most evaluations
for commitment of acquittees take place in a setting different from that of civil commitment evaluations (e.g.,
a forensic hospital), and with different standards and different procedures. Although insanity acquittees as a
group are not particularly prone to subsequent violent or criminal behavior, especially when compared to
felons,407 the legal meaning of “dangerousness” in this context may easily depart from the clinician’s
understanding of that word.

(d) People with Intellectual Disabilities

Most states have enacted separate statutory provisions for commitment of people with intellectual disabilities.
Early on, most of these statutes provided less procedural protection than did commitment statutes for people
with mental illness. They also were less explicit about commitment criteria, and often merely required a
finding of “mental retardation” (the term then in use) and need for treatment or habilitation.408 In part, this
laxness was the result of historical accident. As noted in § 10.02(a), the law’s approach to people with
intellectual disabilities, premised on the irreversibility of their condition, was less solicitous of their property

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and persons than was the case with people suffering from mental illness.
Rightly or wrongly, the Supreme Court seems willing to countenance lesser constitutional protections for
individuals with intellectual disabilities. In Heller v. Doe,409 the Court upheld a statutory scheme that allowed
commitment of people with intellectual disabilities under a lower standard of proof than is required for people
with mental illness, primarily on the erroneous assumption that treatment for intellectual disabilities was less
intrusive than inpatient psychiatric care.410 The court also upheld a statutory provision that granted party
status to family members and guardians of people with intellectual disabilities, even though the statute
regarding commitment of people with mental illness did not do so. The reason given for the latter ruling was
that because people with intellectual disabilities often live with their parents, the presence of family members
at their hearing is more likely to be useful and less likely to infringe privacy. Even if the latter assumption were
correct, the Court did not satisfactorily explain why, in light of a trial court’s subpoena power, it was necessary
to grant party status—which entitles a person to have an attorney present and appeal the commitment
decision—to implement the state’s goal of ensuring a family member’s presence.
Equal protection analysis only requires a plausible rationale for differential treatment; thus the Court’s
specific holdings in Heller might be acceptable as a matter of constitutional law.411 But not even a plausible
justification exists for relaxing the criteria for commitment of people with intellectual disabilities. The line
between “intellectual disability” and “normal intellectual and adaptive functioning” is arbitrary, and whether
an individual has an intellectual disability is frequently difficult to discern.412 Institutionalization is as much a
deprivation of liberty for people with intellectual disabilities as it is for people with mental illnesses; as such, it
should only occur after appropriate due process has taken place. If dangerousness to self or others and grave
disability are considered the proper criteria for commitment of those with mental illness, the same should be
true of those with intellectual disabilities. Those individuals who are not dangerous and can live on their own
with or without help in the community should not be committable on the grounds of intellectual disabilities
and treatability alone. If anything, given the relatively stable nature of their condition, people with intellectual
disabilities should be entitled to more particularized attention than those with mental illness when it comes to
the least-restrictive-alternative criterion and to periodic review provisions. Otherwise, hospitalization of such
individuals could amount to confinement for life.413
Many contemporary statutes, while still segregating the commitment provisions concerning the two
groups, recognize these realities. For example, Florida law defines “intellectual disability” as “significantly
subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior which
manifests before the age of 18 and can reasonably be expected to continue indefinitely”; the statute further
explains that “‘[s]ignificantly subaverage general intellectual functioning’ means performance that is two or
more standard deviations from the mean score on a standardized intelligence test,” and that “adaptive
behavior” refers to “the effectiveness or degree with which an individual meets the standards of personal
independence and social responsibility expected of his or her age, cultural group, and community.”414 Thus,
consistent with current psychiatric diagnostic criteria,415 IQ score is not the sole criterion for meeting the
disability threshold. Commitment may occur only if, because of the intellectual disability, the person either is
“likely to physically injure others if allowed to remain at liberty” or lacks the capacity to apply voluntarily for
services “and lacks basic survival and self-care skills to such a degree that [not providing] close supervision and
habilitation in a residential setting . . . would result in a real and present threat of substantial harm to the

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person’s well-being.”416 Residential placement may only occur if it is the least restrictive and most appropriate
setting to meet the person’s needs.417 These criteria must be proven by clear and convincing evidence at a fully
adversarial proceeding.418 But notice that despite its relative sophistication, Florida’s statute does not require a
recent act or threat for commitments based on danger to others, nor does it require that violence appear
imminent—provisions that appear in the state’s statute governing mental illness commitments.419
Persons with intellectual disabilities have traditionally received even less consideration when subject to
commitment after an insanity acquittal. Many states’ statutes do not provide for their commitment, although
courts, when confronted with this fact, construe the term “mental illness” in these provisions to encompass
intellectual disabilities.420 More important, given the permanence of their condition, persons with intellectual
disabilities who are committed after an insanity acquittal are particularly disadvantaged in those states that
permit continued confinement on the basis of either mental disability or dangerousness and that do not
provide for automatic periodic review.421 Whatever Foucha and Hendricks may allow as a matter of
constitutional law, provisions such as those recommended by the ABA—permitting continued detention only
on a finding of mental disability and dangerousness, and establishing periodic review422—are necessary to
ensure that individuals with intellectual disabilities, whether in the civil or criminal system, are not
warehoused or forgotten after commitment.

(e) People with Substance Use Disorders

Substance use disorders are among the nation’s most significant problems because of their economic cost,423
their effects on health and functioning,424 and their impact on crime.425 The predominant legal approach to
people with such disorders has been criminal prosecution. Starting in the 1970s, however, states began to
develop alternative approaches, including commitment. Although their use varies from a few cases a year in
many states to several thousand in a few,426 commitment may have advantages over criminalization [see §
9.04(d)].
As of 2012, about two-thirds of the states had special statutes governing commitment of persons with drug
or alcohol use disorders.427 Most statutes require some proof of loss of self-control and some showing of
dangerousness to self or others, similar to mental health commitments. For example, Colorado’s statute
permits commitment for alcohol abuse following the filing of a petition alleging “that the person is an
alcoholic and that the person has threatened or attempted to inflict or inflicted physical harm on himself or
herself or on another and that unless committed the person is likely to inflict physical harm on himself or
herself or on another or that the person is incapacitated by alcohol.”428 Texas defines “chemical dependency”
as “abuse of alcohol or a controlled substance; psychological or physical dependence on alcohol or a controlled
substance; or addiction to alcohol or a controlled substance.”429 A few states require inpatient commitments,
but most allow for either inpatient or outpatient treatment.430 Procedurally, the statutes for commitment of
those who abuse substances are generally similar to other commitment statutes. In a number of states, initial
and subsequent commitments are shorter than for mental health commitment (i.e., three months or less).431
The need for special commitment statutes for substance use disorders stems in part from specific statutory
exclusions contained in some states’ mental health commitment laws,432 and the unwillingness of some state
courts to label addiction a mental illness for purposes of commitment.433 Having a separate statute for

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substance use problems also makes clinical sense, in that treatment for these disorders often involves
specialized programs and may emphasize features (e.g., detoxification, 12-Step groups) different from those
typical of inpatient care for psychoses and disabling mood disorders.
A few authors have questioned whether treatment should ever be involuntarily imposed upon persons who
abuse substances. Wexler has argued against police power commitment of this population because they
generally only commit property crimes, and because, at least in the case of those who abuse illegal drugs, their
dangerousness is the fault of the state, which has intentionally prohibited their access to these intoxicants.434
He has also criticized commitment of people who abuse psychoactive substances on parens patriae grounds
because, despite their lack of self-control, they usually are “competent” to make treatment decisions about
their drug use (at least as competent as those who use cigarettes, for instance), and because treatment
programs for addictions have not been particularly successful.435
Wexler concedes, however, that using commitment as an alternative to the criminal process can encourage
entry into treatment programs, especially if the threat of prosecution is held over the committed person’s
head.436 Moreover, as scientists understand more about the ways addictions function—how they change brain
circuitry so as to weaken the regions responsible for decisionmaking, inhibitory control, and self-regulation437
—Wexler’s arguments about preserved competence become less convincing. Further justification for this type
of commitment may find support in studies that demonstrate the effectiveness of substance use treatment438
and the link between substance use and violence.439 In addition, the Court’s holding in Kansas v. Hendricks440
permitting commitment of people with mental abnormalities that make them “dangerous beyond their
control” [see § 9.04(b)] is relatively easily applied to people addicted to psychoactive substances.

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Parham v. J.R., 442 U.S. 584 (1979).
John Petrila & Bruce Lubotsky Levin, Mental Disability Law, Policy, and Service Delivery, in MENTAL HEALTH SERVICES: A PUBLIC HEALTH
PERSPECTIVE (Bruce Lubotsky Levin et al. eds., 2d ed. 2004).
DEBRA A. PINALS & DOUGLAS MOSSMAN, EVALUATION FOR CIVIL COMMITMENT (2011).
Loren Roth, A Commitment Law for Patients, Doctors, and Lawyers, 136 AMERICAN JOURNAL OF PSYCHIATRY 1121 (1979).
Alexander Scherr, Daubert & Danger: The “Fit” of Expert Predictions in Civil Commitments, 55 HASTINGS LAW JOURNAL 1 (2003).

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BRUCE WINICK, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL (2004).

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CHAPTER 11

Civil Competencies

11.01. INTRODUCTION

In Chapters 6 and 7, we considered the range of competencies that come into question when a criminal
defendant has or may have a mental disorder. Throughout those chapters, we emphasized that having a
mental disability does not, by itself, imply incompetence. Rather, the presence of a mental disorder only raises
a question about whether specific functional incapacities render a person unable to make a particular kind of
decision or perform a particular kind of task.
This idea applies even more clearly in civil contexts, where the presence of a mental disorder raises
questions such as the following: If someone with an intellectual disability cannot conceptualize large sums of
money, but does understand what cash is and can perform simple calculations, should that person be allowed
to decide how to spend his or her money (at least within circumscribed limits)? Should a person who is
hospitalized or ordered to outpatient treatment because of mental disorder also lose other rights, such as the
right to control property, the right to vote, or the right to marry? Do civilly committed persons have a residual
right to privacy or retain a right to exercise informed consent that permits them to decline intrusive treatments
—and, conversely, the right to consent to experimental treatment? Under what circumstances may a person’s
will be declared invalid because of his or her mental condition at the time the will is signed? This chapter
considers these types of questions in the context of evaluations for guardianship, competence to consent to
treatment and research, and testamentary capacity (competence to make a will).
As the introduction to Chapter 7 notes, the underlying rationale for treating competence as a task-specific
capacity is that persons with mental disabilities—like all persons—should determine how they wish to live,
absent compelling reasons to the contrary. A Presidential commission phrased it thus:

More is involved in respect for self-determination than just the belief that each person knows what’s best for him- or herself. . . . Even if it
could be shown that an expert (or a computer) could do the job better, the worth of the individual, as acknowledged in Western ethical
traditions and especially in Anglo-American law, provides an independent—and more important—ground for recognizing self-
determination as a basic principle in human relations[.]1

Yet the right to self-determination is not absolute. Two types of circumstances justify preventing
individuals from doing what they would otherwise choose: (1) when significant harm to others will result from
their actions, or (2) when they are incompetent to make the specific decision in question.2 We explore the
dangerousness concept elsewhere in this book [see §§ 9.09, 10.03(c)]. In this chapter, we focus on how and
when incompetence justifies exceptions to the principle of self-determination.
Several different levels of competence—ranging from the mere ability to indicate one’s desires to a
determination by an expert panel that one’s decision is “reasonable”—are conceivable, and which definition is

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adopted can have a major influence on whether the person is deemed competent in a particular situation.
These various levels are discussed further later in this chapter [see § 11.03(a)(2)]. Here we simply point out
that the definition of “competence” may vary, depending on the context. Assume, for instance, that a doctor
wants to administer a treatment that is clearly beneficial, with minimal side effects for the patient in question.
Some have argued that one may reasonably require a more modest degree of competence to consent to such
treatment than one would require to refuse such treatment, on the ground that the law should facilitate
administration of beneficial treatment.3 By contrast, these commentators contend, if the proposed treatment
is experimental, extremely intrusive, or likely to cause serious side effects, these competence requirements
should be reversed, so as to make the threshold for consent more demanding and the threshold for refusing
easy. In a slightly different vein, it has been argued that as the consequences of a decision become more
significant, the level of required competence should be increased.4
Not all agree with this reasoning. Saks has argued that calibrating the level of competence according to the
significance of the decision or its consequences is problematic, because not all persons assess significance and
consequences alike.5 For instance, while “beneficial” hospitalization may seem relatively harmless and less
risky than psychosurgery, someone might view the deprivation of liberty associated with commitment as much
more intrusive than psychosurgery, particularly if the latter is the only viable treatment. Furthermore, Saks
argues that

if varying the level of competency based on the importance of decision made sense, a competency theorist might urge us to lower the level of
competency for potentially consequential decisions. Because people care more about more consequential decisions, we should arguably permit
them to choose what they will have to live with. Moreover, taking away consequential decisions may entail a greater assault on individual
dignity. For example, telling a person that he can decide what kind of ice cream to have, but not where to live, may more seriously injure his
self-esteem.6

Whether the nature of the decision should influence the required level of competence is an issue that
permeates this chapter.

11.02. GUARDIANSHIP

CASE STUDY 11.1

In a proceeding brought by a neighbor to determine whether Mr. Galvin needs a guardian of his estate and person, the Court hears the
following testimony. A primary care doctor testifies that he first treated Mr. Galvin three years earlier for “advanced multiple arthritis”; at
that time, he noted that Mr. Galvin had also suffered a “cerebral vascular accident” or stroke. The doctor further testifies that Mr. Galvin
was readmitted to the hospital the next year for treatment of his heart, cerebral, and arthritic conditions. Noting that Mr. Galvin was “a
little bit confused at times” and “a little bit agitated at times,” the doctor had a psychiatrist interview Mr. Galvin. The psychiatrist observed
that Mr. Galvin experienced “some delusions” and “hallucinations.” Based on this finding, the primary care doctor diagnosed Mr. Galvin as
having an “unspecified mental disorder due to known physiological condition,” signifying a severe mental disorder caused by damage to the
brain. The doctor released Mr. Galvin from the hospital after about two months.
According to the doctor, Mr. Galvin’s heart condition is currently stable, but the condition is irreversible, and failure to take his cardiac
medication as prescribed could endanger Mr. Galvin’s life. Although the doctor does not know how Mr. Galvin handles his finances, he
believes that Mr. Galvin is disabled and unable to manage his affairs. On cross-examination, however, the doctor testifies that Mr. Galvin
has made some recent improvement. He states that Mr. Galvin is “more oriented and more realistic.”
Mr. Galvin testifies that he owns the three-flat building in which he lives. He occupies the basement apartment with two men, John and
Mike. They do not pay rent, but Mr. Galvin does collect rent from the other two apartments. Mr. Galvin handles his own financial affairs
and has a checking account, which currently has a balance of $350. He receives about $900 each month in Social Security payments. He

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does not believe that he has a heart condition, though he continues to take prescribed medication. On cross-examination, Mr. Galvin
testifies that he invented the snowmobile, that at one time he had a pet black widow spider, and that he can produce fire by pointing his
finger. He also testifies that John and Mike sometimes prepare his meals, but he can and sometimes does prepare his own meals. He says he
can shop by himself, can pull a shopping cart, and can go to the laundromat with the use of his walker. He insists that he can take care of
himself and does not need a guardian.
John and Mike testify that Mr. Galvin has no concept of time, and that he also believes he was a former coworker of Barack Obama.
They state that they plan to move out of Mr. Galvin’s apartment, meaning that Mr. Galvin will be left alone. The petitioner (the person
seeking guardianship, a relative) also testifies. She states that Mr. Galvin is “constantly” at her home, where she and her mother “take care
of” him. In addition, she testifies, Mr. Galvin goes outside “without shoes or stockings and wearing only slippers during subzero weather.”
Another neighbor testifies that when Mr. Galvin goes to the hospital, the petitioner does his shopping and provides for his other needs.

Questions: What other information, if any, would you want about Mr. Galvin to evaluate his decisionmaking ability and his ability to
care for himself? Should the Court appoint a guardian, devise some other method of monitoring him, or allow him to be left alone? If a
guardianship were considered advisable for Mr. Galvin, should it be a guardian of the estate, a guardian of the person, or both? Plenary or
“limited”? If you were appointed guardian for Mr. Galvin, would you attempt to have him hospitalized involuntarily, perhaps under the
grave-disability standard [see Chapter 10]? Use his money to have a nurse or home health worker visit him?

(a) Forms of Guardianship

Guardianship is a legal mechanism by which the state delegates authority over an individual’s person or estate
to another party. It is probably the most ancient aspect of mental health law. In both Roman and English
common law, the sovereign possessed the power and duty to “guard” the estate of incompetent persons.7 This
power, which emanated from the state’s interest in preserving its wealth, is the historic basis of the parens
patriae authority, which has since been applied broadly—and perhaps illogically8—to allow the state to
regulate many other aspects of decisionmaking by children and people with mental disabilities, including civil
commitment [see § 10.02]. In any event, guardianship is the vehicle through which the state delegated this
authority to third parties (usually family members or members of the government).
Today, guardianship comes in many forms.9 Some jurisdictions have separate provisions for appointing a
guardian of one’s person (e.g., with authority over health care decisions) and a guardian of one’s estate (e.g.,
with authority over contracts to sell one’s property).10 The latter type of guardian is often called a
“conservator” or “committee,” although this nomenclature is not consistent across jurisdictions (with some,
like California, using the former term to cover both person and property11). In addition to, or instead of, this
distinction, most jurisdictions also distinguish between “general” (or “plenary”) and “specific” (or “limited”)
guardianship.12 A general or plenary guardianship confers on the guardian total control of the ward’s person,
estate, or both. A specific or limited guardianship restricts the guardian’s powers to particular types of
decisions. Thus, under a limited guardianship of the person, the guardian may have authority only to make a
specific treatment decision (e.g., consent to a specific course of treatment that has been proposed) or
“nonroutine” treatment decisions (e.g., consent to any major surgery); the ward would remain free to make
other health care decisions. Similarly, a person with mental disorder under limited guardianship of the estate
might be allowed to spend up to $100 a week, but would not be allowed to make decisions about large
purchases or complicated investment matters.
Beginning in the late 1980s, national efforts to make guardianship processes more rigorous and fair to
potential wards led to reforms in most states.13 These included the following:

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 Requiring courts to consider alternatives to plenary guardianship that provide the same outcome or
protection for the person (the least-restrictive-alternative requirement).14
Restricting the use of emergency guardianship and, at a minimum, providing a full hearing as soon as
possible.
Encouraging the presence of the proposed ward at the hearing.
Assuring that evaluations of capacity assess functioning (a principle at the heart of our own
recommendations regarding the clinical assessment of capacity).

Clearly, limited-guardianship schemes preserve more of a person’s autonomy than do plenary

dispositions.15 Yet the limited-guardianship option is rarely used.16 Tor and Sales, in an early analysis,
suggested a number of reasons for this omission, including the vagueness of the implementing statutes; the
biases of judges (who may presume or anticipate eventual total incompetence); the lack of resources to carry
out a limited guardianship; and (most important to the subject of this book) a failure on the part of
respondents (and their experts) to provide specific information on the respondents’ limitations.17 More recent
commentary has agreed that the continued vagueness of some statutory limited-guardianship provisions and
the nonspecific nature of expert reports pushes judges toward the use of plenary guardianship, to the
derogation of individual autonomy.18 At the same time, widespread use of limited guardianship could have
drawbacks as well. In particular, it could result in an inappropriate broadening of guardianship jurisdiction
beyond those people with serious mental and functional impairments.
For these reasons, some have suggested less restrictive alternatives to guardianship. These include “advance
directives”; representative-payee arrangements (used for receipt of welfare benefits [see § 13.04(b)]); and trusts
and joint tenancies, which allow for transfers or sharing of specific property without the need for an
overarching guardianship. The use of advance directives [discussed further in § 11.02(e)] involves allowing
people with mental illness to appoint a surrogate decisionmaker with respect to one or more specified
decisions during a period of competence;19 this approach of course requires that the individual be competent
at some point to understand the relevant issues and designate a surrogate. A related but more radical
development is the concept of “supported decision-making,” which “seeks to maximize the on-going and
active involvement of the principal in the decision-making process” and can be established even if the
individual “would not be deemed to have the generally accepted level of legal capacity to enter in to a general
or health care power of attorney.”20 Both alternatives are based on the assumption that guardianship
“perpetuates stereotypes that wards are incapable or unworthy of participating in community life, [and]
diminishes the ward’s opportunities to participate in . . . every day social, economic, civil, and cultural
activities.”21 To date, however, these alternatives are rarely used in the United States. Finally, a number of
jurisdictions have developed programs that are often put under the rubric of “adult protective services”—a
legislatively mandated system of health and social services such as homemaker support, home health care, and
alternative care arrangements that are usually coordinated by caseworkers. Unfortunately, such services, like
guardianship generally, have been associated with elder abuse, which government has been less than successful
at reducing.22
Beyond these distinctions about the scope of guardianship, it is also important to recognize disparate bases
of guardianship. In most instances, individuals are found, on the basis of particularized evidence, to lack

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specific or general capacities. They are actually (or de facto) incompetent and in need of a guardian to make
decisions for them. On the other hand, some people are presumed to require a guardian. Regardless of their
actual mental capability, they are incompetent in law (de jure).
For example, though older minors can make many types of decisions as competently as adults do,23 the law
treats them as incompetent for most purposes and as lacking legal authority to act on their own behalf.24
Moreover, even though older minors have better decisionmaking capacity than younger children, the law
recognizes such distinctions inconsistently.25 Even when the law lets them make decisions independently,26
minors generally are presumed incompetent until they are able to rebut this presumption.27 Because of this
strong legal presumption of minors’ incompetence, courts rarely adjudicate their need for guardianship.28
Also, in most cases involving juveniles, the courts have no need to determine who the guardian will be.29
Children are generally subject to the wishes of their “natural” guardians—their parents—who are presumed, in
the absence of strong evidence to the contrary, to act in their best interests.30
Civilly committed adults may also find themselves presumed incompetent to make many decisions. At one
time, civil commitment carried with it collateral loss of rights to marry, possess a driver’s license, refuse
intrusive treatments, manage one’s property, and so forth.31 Today, commitment does not automatically
render a person incompetent to perform such functions. Furthermore, in virtually every state a committed
individual who refuses treatment is entitled to a separate hearing to adjudicate the issue.32 Yet vestiges of
earlier practices linger, as recounted in § 11.03(b).
Three separate issues arise in the guardianship context: determining whether someone needs a guardian;
deciding, if a guardian is necessary, who that person shall be; and determining, once a guardian is appointed,
what the guardian should do. These issues are discussed below.

(b) Determining Need for Guardianship

(1) Legal Requirements

Identifying persons who are de jure incompetent is usually as easy as determining how old they are or whether
they have been civilly committed (in those states that retain the equation of commitment and incompetence).
So most guardianship proceedings occur only when an allegation of de facto incompetence is made. In most
jurisdictions, any interested person can petition to have someone declared incompetent and subject to
guardianship.33 As a result, even today a petitioner sometimes may not be acting with the person’s interests in
mind.34 Nonetheless, both the procedural and the substantive criteria in guardianship proceedings are less
rigorous, on their face and as applied, than the procedures and criteria that govern civil commitment, which
themselves have been subject to criticism [see §§ 10.03, 10.04].
That guardianship proceedings lack procedural rigor has been a consistent, common finding of researchers
and commentators, notwithstanding decades of reform efforts.35 This situation has been endorsed by many
courts on the questionable ground that the consequences of guardianship are not as onerous as those
associated with other types of proceedings.36 Although changes to state laws in the past decade mean that
most respondents now have a right to receive specific notice of the proceedings, to be present during those
proceedings, to be assisted by counsel, and (in about half the states) to have a jury,37 observations of
guardianship proceedings indicate that many are extremely informal. A 2003 study of 566 guardianship cases

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in ten states found that:

25% of the hearings lasted less than 5 minutes, and 58% lasted less than 15 minutes.
The proposed ward did not attend the hearing in 66% of the cases.
Counsel was often not present and, when present, was often silent; expert reports often lacked detail.
The expert was only present at 8% of the hearings.38

In addition, a 2004 report by the United States Government Accountability Office39 reported several concerns
regarding guardianship:

Varying implementation across states of statutory requirements that judges monitor guardianships.
A failure by most courts to track the number of active guardianships.
Frequent misuse of Social Security funds by guardians acting as representative payees for their wards.40

If a guardian is appointed, the burden is usually on the incompetent person to initiate “restoration”
proceedings.41 This fact, combined with the reality that most guardianships are not actively monitored by the
courts,42 may mean that many individuals do not receive such hearings. This lack of review is particularly
troubling given the frequent failure to file guardians’ reports and inventories of assets.43
The procedural laxity of guardianship proceedings is commonly matched by ambiguity of standards. For
general guardianship, many state statutes simply require findings of a threshold status (e.g., in the past,
“idiocy” or “senility”; today, more commonly, “mental illness”) and incapacity “to care properly for oneself or
one’s estate.”44 As Alexander noted years ago, this vague standard leaves the door wide open for essentially
arbitrary judicial decisions:

What does the word “properly” mean in the statutes relating to property management? Do persons whose survival is not in question manage
“improperly” if they fail to live up to standards the trial court finds appropriate? How does the court decide on an appropriate standard?
The statutory standards seem to allow definitions of functional ability ranging from simple improvidence in occasional transactions to
incapacity to provide for food or medical care for extended periods of time. Since one can almost always find property managers who can
improve on a particular owner’s management, it is unclear when it becomes appropriate to impose such a manager on an unwilling
recipient.45

Some modern guardianship statutes attempt to remedy these problems by focusing on the proposed ward’s
thought process rather than the capacity to care for self. The Uniform Probate Code, followed in a number of
states, defines an incapacitated individual as “any person who is impaired by reason of mental illness, mental
deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication . . . or other
cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or
communicate responsible decisions concerning his person.”46 Yet this language is itself susceptible to many
interpretations, and in In re Boyer, the Utah Supreme Court held it to be unconstitutionally vague unless it is
interpreted as requiring that the person is actually “unable to care for his personal safety or unable to attend to
and provide for such necessities as food, shelter, clothing, and medical care, without which physical injury or
illness may occur.”47
Although the Boyer definition returns the guardianship question to the inability-to-care-for-self inquiry
that predated the Uniform Probate Code, it does tighten that standard somewhat. A number of states have
moved to this third, so-called “functional” approach to guardianship.48 Note also that the Boyer definition

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matches the “grave disability” standard associated with civil commitment [see § 10.03(e)], which explains why
California courts appoint a guardian (called a “conservator”) to oversee the commitment.49 Even this standard
can lend itself to significant value judgments, however. For instance, New Hampshire’s statute defines
functional limitations as “behavior or conditions . . . which impair [the person’s] ability to participate in and
perform minimal activities of daily living that secure and maintain proper food, clothing, shelter, health care
or safety for himself or herself” (emphasis added).50
As might be expected from these ambiguities, guardianship statutes are applied with considerable
variation.51 On the one hand, courts are sometimes prone to enter orders for guardianship on the basis of
medical opinion alone, or on the basis on what appears to the court to be the “reasonable” or “rational” course
of action individuals should take (and whether they have taken, or plan to take, that action). In a 1983 case,
for example, the Nebraska Supreme Court upheld appointment of a conservator for an elderly woman where
the evidence showed that she had used all but $19.18 of the estate left by her husband, that she had given
away much of the money, and that she had made some foolish real estate deals.52 Apparently no evidence was
taken as to her actual capacity to manage her property. Two members of the court entered an impassioned
dissent:

The fact that one has made bad investments or is inclined to give one’s property away is not sufficient to justify the appointment of a
conservator over the objections of the one for whom the conservator is being sought. Were it otherwise, a number of us would have
conservators appointed for us. Often all that persons of advanced age have left is their dignity and the ability to dispose of their property as
they may choose. We should not take that right away so quickly, absent evidence of mental incapacity.53

On the other hand, some courts have required considerable evidence of incompetence before entering an
order for guardianship. For example, in the matter that gave rise to Case Study 11.1, the respondent’s
testimony about his financial dealings convinced both the trial court and the appellate court that the
individual did not need a guardian. Similarly, a California appellate court overturned a conservatorship for a
man with schizophrenia who lived in his sister’s backyard much of the time and who was described as dirty,
disheveled, and incontinent.54 The court held that it was reversible error for the trial judge to fail to admit
evidence about, and to instruct the jury on, the availability of assistance by others that could meet the
respondent’s basic needs.
Despite the many efforts of courts and legislatures to reform guardianship proceedings and provide wards
with more protections from unscrupulous guardians, few major changes have actually occurred.55 As a result,
the first line of protection for someone subject to a guardianship proceeding may in fact be a competent,
focused forensic examination. We turn to this subject now.

(2) Clinical Evaluation

In contrast to laws concerning the insanity defense, commitment, or entitlement laws, many states do not
require an evaluation prior to a guardianship proceeding.56 However, in most states such an evaluation must
be provided if demanded by the petitioner or the subject of the guardianship proceeding.57
The clinician who undertakes such an evaluation should remember several points. First, the loss of
decisional autonomy associated with guardianship can have “considerable psychological consequences,
impacting mental well-being, personal control, ability to cope with changes and stressors, and physical

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health.”58 Second, the clinician should focus the assessment on the range of functions that the respondent can
perform, rather than on the respondent’s diagnosis or symptoms. A detailed functional assessment may be
especially helpful in jurisdictions where judges are permitted and inclined to craft limited guardianships. As
pointed out earlier, one reason why limited guardianships are seldom used is that specific evidence about
functional deficits, whether from an expert or a layperson, is simply not produced.59 Thus, although it takes
time and thought to do so, the clinician should try to pinpoint and describe precisely the tasks the allegedly
incompetent person can and cannot do.
The clinician should also attend to whether weaknesses in the individual’s performance are, or might be,
alleviated by assistance from others. Of particular relevance in this regard are possible “less restrictive
alternatives” to guardianship discussed earlier, including adult protective services, advance directives, and
supported decisionmaking. The examiner should be aware of these alternatives as well as their pitfalls, and
should provide the court with information that informs the court of which alternatives (if any) are available
and might address the person’s difficulties.
Finally, as in any evaluation context, the clinician should stay attuned to the newest strategies for
performing guardianship evaluations. As recently as 2003, one commentator asserted: “Due to the complexity
of the matter, it is unlikely that a set of requisite functional abilities will ever be identified and agreed upon to
make the competence determination more standardized and less discretionary.”60 But that assessment turned
out to be wrong. Some general strategies for evaluating competence in connection with guardianship have
received widespread recognition. More than 70 published instruments (some noted below) are now available
to aid clinicians in conducting functional assessments of respondents.61
Determining what a proposed ward can actually do and handle “is a complex, cross-disciplinary process
that ideally involves a range of professionals,” who together can develop a comprehensive picture
encompassing the respondent’s capacities to feed him- or herself; attend to personal hygiene; care for a home;
perform independent activities of daily living (IADLs) such as cooking, cleaning, and shopping; carry out
medical instructions; and handle finances.62 Recognizing this need, some jurisdictions (e.g., Kentucky and
North Carolina) have guardianship evaluations performed by a multidisciplinary team, the members of which
can focus their skills and expertise on areas relevant to a respondent’s disability.63
When an individual evaluator undertakes evaluation, Moye suggests using “testing, observation, and third
party informant report” to assess cognition and behavior with respect to domains such as health, independent
living, and transportation.64 Moye also notes two situations in which apparent functional deficits in these
areas may be attributable to causes other than cerebral dysfunction. First, the evaluator should consider
whether findings about incapacity are due to measurement error attributable to deficits in hearing, vision, or
speed of processing; reluctance to take formal tests; and the like.65 Second, environmental conditions may
have an impact on perceived capacities of the elderly; for example, atrophied ability to manage finances may be
due to a living situation that discourages autonomy in managing money, rather than to an actual deterioration
of functional capacity.66 In addition, the complexity of the transactions at stake will have an impact on
assessment. For example, if an individual has a larger estate, the individual may need a greater degree of
functional capacity than would be required to handle monthly Social Security payments.
As we mentioned earlier, several instruments can aid evaluators in assessing IADLs.67 While all these
measures have strengths and weaknesses, the Direct Assessment of Functional Status (DAFS) is one of the

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most studied instruments available. In its original form,68 the DAFS was designed for outpatient testing and
contained 85 items that addressed several functional domains (e.g., communication, using transportation,
handling financial issues and shopping). The DAFS requires the individual to perform each activity (using
checks, the phone, money, etc.), with the evaluator assigning points in each area. The developers of the 55-
item 2010 revision of the DAFS (DAFS-R) removed items that produced little to no variation on the original
DAFS and added more difficult subscales that addressed medication management skills. This makes the
DAFS-R more sensitive to the early decrements in IADLs that may signal initial cognitive impairment in
community-dwelling individuals, particularly impairment related to managing one’s medications.69
A second instrument, the Assessment of Capacity for Everyday Decision-Making (ACED), aims at
helping an evaluator assess a cognitively impaired “person’s capacity to make a decision with regard to solving
his or her own actual functional problems.”70 The ACED uses a semistructured interview to help the
examiner collect information from caregivers about functional deficits—a feature that permits tailoring of
content to an individual examinee.71 Examinees are also evaluated on the ACED’s “standardized content,”
which provides them with written information about a functional problem, options to address it, and risks and
benefits of these options, and then asks them to decide; this evaluation technique is intended to minimize the
impact of any short-term memory problems. The ACED uses the four-element competence rubric
(articulating a choice, understanding, appreciation, and reasoning) developed by Appelbaum and Grisso72 [see
§ 11.03(a)(2)], and it uses a scoring system that the developer claims has good interrater reliability and
internal consistency for ACED-evaluated abilities.
We have only described two of the dozens of appropriate-seeming instruments that might serve as
reasonable candidates for assessing guardianship-related capacities. As Mossman and Farrell point out,73 this
plethora of choices actually poses some problems for examiners:

Having so many tools available makes it hard for an examiner to know about many of them—let alone
develop expertise in using them.
Even among the instruments that have been published under peer-reviewed conditions, few have been
discussed in more than a handful of publications, which precludes having a high level of confidence in
most of them.
Most of these instruments have therefore not received “general” acceptance as evaluation tools relevant to
assessing the need for guardianship.
Those instruments for assessing cognitive status that are generally accepted74 do not directly assess the
practical skills and functioning that an individual needs when managing his or her personal and financial
matters.

Mossman and Farrell suggest the following:

Evaluators can effectuate practical solutions to these problems by remembering that . . . the value of structured assessment instruments
inheres chiefly in their assuring a systematic and consistent approach to looking at the types of behavior and performance capacities relevant
to the evaluation . . . Use of previously published instruments also gives the fact-finder some assurance that the examiner’s judgments are
reasonably reliable and do not arise from idiosyncratic interpretations of what is needed to function competently and independently.75

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 (c) Determining Who Shall Be the Guardian

The kinds of parties that may serve as guardians range from family members to government agencies, social
workers, lawyers, and even sheriffs; most are family members.76 Each type of guardian comes with its own
pros and cons. For instance, public guardians, available in approximately three-quarters of the states, provide
services either free of charge or for a nominal fee; however, because they generally are part of a bureaucratic
structure with no relation to their ward, they may be impersonal or overly casual about managing the persons’
affairs. They can also be overwhelmed: One 2005 study describes a guardian with responsibility for 173
wards.77 Furthermore, if a public guardian works for an agency with the obligation to provide services to the
ward, conflicts of interest can arise.78 Family members are likely to be less impersonal in approach; yet they
too may have conflicts of interests, especially when the respondent’s values or decisions about using money are
deemed improper by the rest of the family.79
Because the preference for one sort of guardian or another is likely to be a matter of policy or law, mental
health professionals usually will have no input into this decision. However, they may become involved when
conflicts become apparent. Consider, for example, a situation in which the parents of an intellectually disabled
adult are divorcing. Each parent may claim to be the potential guardian most likely to meet their adult child’s
best interests. Another choice-of-guardian situation for which clinical input might conceivably be sought
would be one involving a court’s effort to match an incompetent person with a guardian who would be
especially attuned to the person’s needs and able to communicate easily.
For some wards, a clinician might be appointed guardian.80 Of course, a clinician should not assume this
role if he or she is providing treatment to the ward [see § 4.05(c)].

(d) Determining What the Guardian Shall Do

Once a guardian is appointed, two models guide decisionmaking. In the first, the guardian acts according to
an objective test: What action will most effectively serve the ward’s best interests? In the second, exemplified
by a series of cases in Massachusetts and New Jersey,81 the guardian should undertake to make a subjective
substituted judgment—that is, to choose or act as he or she thinks the ward would have acted if the ward were
competent.82 The Supreme Court’s decision in Cruzan v. Missouri Department of Health,83 discussed in the
next subsection, suggests that the latter standard is required when the guardian must decide whether to
terminate the life of a ward who has suffered an accident and is in a vegetative state. However, most courts
have distinguished this kind of situation from others where the ward has never been competent to make
treatment decisions.84 Thus the best-interests model usually prevails in mental health treatment and child
abuse cases.85 In any event, the subjective test usually becomes a de facto best-interests test. It may be easy to
construct hypothetical cases in which the decision made by the guardian should differ, depending on which of
the two models is used.86 But in practice, the specific situation in which the guardian is required to act is often
a novel one that leaves no basis for knowing what the ward would have done if competent. This, in essence,
leaves the guardian in the position of choosing the best course of action after objectively weighing the
merits.87
Thus, if the guardian’s decision involves treatment of the ward and the mental health professional is asked

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to provide information to assist in the decision, the evaluation will usually be a treatment-oriented assessment
focused on the ward’s best interests. Typically, the inquiry will be this: Given the individual’s needs, what are
the treatments available, their probable benefits, and their probable side effects? To put it another way, the
clinician should provide enough information for the guardian to give informed consent—a topic addressed in
§ 11.03.

(e) Advance Directives

Today, all states recognize the legitimacy of one form or another of so-called “advance directives,” and at least
half the states have enacted comprehensive statutes governing these directives.88 The move toward advance
directives was hastened by adoption of the federal Patient Self-Determination Act, which requires all health
care providers that receive Medicare or Medicaid funding to provide patients with information regarding their
right to participate in treatment decisions and to prepare advance directives.89 An “advance directive” is an
instruction from a competent individual that directs or authorizes certain actions if the individual becomes
unable to make decisions about them. Available since 1976, these directives are intended to protect
individuals’ autonomy by assuring that persons who lose decisionmaking capacity can receive the care they
would have wanted, by delegating the decision to a surrogate decisionmaker, documenting their wishes in the
event that they lose capacity, or both.90 If executed in accordance with applicable statutory provisions, an
advance directive binds the appointed decisionmaker, including a guardian.91
Advance directives can take many forms. Most common is the so-called “living will,” used to indicate a
person’s desires regarding treatment should he or she become terminally ill and incompetent. A “durable”
power of attorney,92 available in all 50 states and the District of Columbia, can be used to cover nonterminal
situations as well and can include directions concerning property. A number of states have formal mechanisms
for advance directives concerning medical treatment of a person who has become incompetent because of
mental illness, unconsciousness, or some other cause, although use of these mechanisms has been somewhat
sparse.93
An example of the latter type of directive is found in Florida, where a person (the “principal”) can designate
a “health care surrogate” through a simple document witnessed by two persons, neither of whom is the
designated surrogate. Subsequently, if two doctors certify that the principal has become incapacitated
(meaning “physically or mentally unable to communicate a willful and knowing health care decision”), the
surrogate is to make the necessary health care decisions in accordance with the principal’s instructions in the
living will. Although these decisions may be challenged judicially by the attending physician, the health care
facility, the patient’s family, or “any other interested person,” they are presumptively valid.94
An important subtype of health care advance directives is the “psychiatric advance directive” (PAD). The
PAD is designed to permit an individual with mental illness to direct in advance the type of mental health
treatment he or she would or would not like in the event of incapacity.95 Because the PAD is likely to arise in
the narrow context in which the patient’s competence to consent to treatment is at issue, we defer our
discussion of PADs to § 11.03.
In Cruzan v. Missouri Department of Health,96 the United States Supreme Court appeared to give its
imprimatur to advance directives, even when the surrogate’s decision is to end the patient’s life. In Cruzan, the

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parents of a 26-year-old woman who was in a permanent vegetative state sought to terminate procedures that
were sustaining her life. The trial court approved the termination, finding that the daughter had been a
“vivacious, active, outgoing, independent person who preferred to do for herself,” and that a year prior to her
death she had had “somewhat serious” conversations with a friend in which “she expressed the feeling that she
would not wish to continue living if she couldn’t be at least halfway normal.” The Supreme Court found this
evidence insufficient for determining the daughter’s wishes and concluded that, under these specific
circumstances, the state could require that her life be preserved:

An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as
advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected
death of the patient despite the administration of life sustaining treatment, at least create the potential that a wrong decision will eventually
be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction.

However, the Court also indicated that a formal written statement of intent to permit withdrawal of treatment
—a “living will” of the type authorized by Florida law—would have sufficed to overcome the state’s interest in
preserving life.97 After lower courts echoed this holding in contexts involving mental health treatment,98
Cruzan stimulated interest in both general advance directives and PADs.
An evaluation of whether a person is experiencing the degree of incapacity necessary to trigger an advance
directive is, in essence, an evaluation of the competence to make a treatment decision [which is described in §
11.03(d)]. Similar issues can arise in evaluating the principal’s capacity to draft or agree to terms of a directive
at the time it is signed. In the latter situation, however, the clinician has the additional duty of sensitizing the
principal to the kinds of eventualities noted in Cruzan—in particular, the possibility that future medical
advances or changed circumstances could someday affect what treatment one might choose or prefer.99 In
short, the clinician should ensure that the advance consent truly is informed.

11.03. COMPETENCE TO MAKE TREATMENT DECISIONS

CASE STUDY 11.2

Mr. Bowman, a 43-year-old man, has long-standing glaucoma in both eyes. In one eye, vision remains only for motion. In the other eye,
vision was previously better, but is now getting worse despite medication. Mr. Bowman’s ophthalmologist has proposed performing a
trabeculectomy (a fluid-draining procedure) for the second eye that has a high chance of improving his vision for several months and a
negligible chance of damaging the eye. Although Mr. Bowman expresses concern about the pressure in his eye and is fearful of going blind,
he refuses the procedure, explaining that his “voices” would be “angry with him” if he underwent the procedure. When his reasons for
refusal are explored further, he notes that his mother had a drainage procedure that had not been helpful. He then discusses his attachment
to his mother, stating that he feels that whatever happened to his mother will also happen to him.

Questions: How would you evaluate Mr. Bowman’s competence under each of the five competence standards described below? How do
you evaluate his reasoning, given that he gave two reasons for refusing the procedure? Of what relevance is the ophthalmologist’s opinion
that without treatment, Mr. Bowman is likely to go blind?

(a) Requirements for Informed Consent

Although getting a patient’s explicit, informed permission now seems like an obvious and almost natural
aspect of providing treatment, the doctrine of informed consent is a relatively recent development in tort

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law.100 Under this doctrine, clinicians may face liability for battery101 or negligence102 if they fail to obtain
informed consent, or if they treat patients whose consent is invalid [see § 4.04(d)(1)]. In the 1970s and 1980s,
discussions of informed consent for psychiatric treatment were overshadowed by debate over a constitutionally
based right to refuse [discussed in § 11.03(b)]. More recently, however, informed consent has taken on new
significance as more treatment is provided in the community, where clinicians are not governed by the
constitutional rules that limit state hospital practice.103
The requirement of informed consent for care serves (1) to promote individual autonomy; (2) to encourage
rational decisionmaking; and (3) to protect the safety and welfare of patients or research subjects.104 The first
purpose is probably the most important. As Katz has eloquently shown,105 protecting autonomy in treatment
decisions is not simply a matter of valuing free agency for its own sake (though this is a far from trivial goal).
Protection of autonomy also promotes respect for the patient as a person rather than an entity to be
patronized, taken for granted, or treated as an object of treatment (“a case”) by professionals.106 By
personalizing and humanizing the clinician–patient relationship, the process of informed consent balances the
clinician’s professional authority and the patient’s self-governing authority. Indeed, informed consent stands
as part of the larger strategy that all health care providers are pursuing to better engage patients in their
treatment; for instance, the Affordable Care Act codifies an emphasis on patient engagement and ties
financing to the success of care providers in achieving this goal.107
A valid informed consent consists of three elements: appropriate disclosure, a competent patient, and
voluntary consent.108 Although legal and clinical authorities agree on these elements, how to determine the
presence of the elements is far from settled.

(1) Disclosure

What constitutes an adequate disclosure of information? One view, which went essentially unchallenged until
1972,109 judges the adequacy of disclosure on the basis of what a “reasonable clinician” would disclose under
similar circumstances.110 A second approach evaluates the adequacy of disclosure from the patient’s
perspective: What information would suffice to allow a patient to make a reasonable decision?111 Jurisdictions
that have adopted the second approach are divided as to whether to apply an objective test112 (i.e., whether
the patient is given the information that a “reasonable person” would need to make an informed judgment) or,
less commonly, a subjective test113 (i.e., whether the patient received the information that this particular
patient needed to make an informed judgment). Under each of these tests, the elements of disclosure are
commonly the same—the nature of the recommended treatment procedure, its risks and benefits, and its
alternatives.114 But how one evaluates the adequacy of disclosure obviously varies between the tests. A few
jurisdictions have considered expanding disclosure requirements to include information about the health care
professional’s experience in performing the procedure at issue, though this line of reasoning has found little
traction.115
In medical malpractice cases, about one-half of the states apply the first disclosure standard (i.e., what
other, similarly situated clinicians do).116 This customary-practice standard has at least two justifications:
Only physicians would know what risk might apply to particular patients, and the legal assessment of
negligence normally evaluates the conduct of a reasonable actor, not the expectations of a reasonable victim.117

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Yet, as one court pointed out, this standard leaves disclosure “totally subject to the whim of the physicians in
the particular community” and is “inconsistent with the patient’s right to self-determination.”118 Katz adds
that under the customary-practice standard,

the objective of giving patients a greater voice in medical decisionmaking is well-nigh unattainable. For such disclosures do little to expand
opportunities for meaningful consent, particularly in surrender-prone medical settings, in which a proposed treatment is zealously advocated
despite its risks.119

For truly informed consent, Katz argues, respecting patients and giving them information will not suffice;
clinicians must also be willing to share authority and to engage in dialogue with patients. Informed consent is
a process, and its goals cannot be met through a one-way, clinician-to-patient transfer of information. The
disclosure rule also appears to have a practical impact on litigation claiming lack of consent: A 2007 study
found that verdicts for plaintiffs were much more frequent in jurisdictions with patient-centered disclosure
standards (27% decided for plaintiffs) versus customary-practice standards (17% for plaintiffs).120
Whatever disclosure rule is adopted, all jurisdictions recognize (to varying degrees) four types of exceptions
to the informed consent requirement. First, courts routinely hold that disclosure is not necessary in
“emergencies,” a term that is usually left undefined.121 Regardless of its definition, however, this exception
would seldom apply in mental health treatment outside hospitals and emergency rooms, where a patient’s
needs or clinical condition not infrequently warrants immediate intervention.
Second, in most jurisdictions the right to disclosure can be waived by the patient (e.g., “Doctor, don’t tell
me anything”).122 Yet such a waiver is arguably invalid unless the patient has some idea of what the doctor
would say. To address this problem, such a waiver might be deemed valid only when the patient knows that
(1) the health care professional has a duty to disclose treatment-related information; (2) the patient is legally
entitled to make decisions regarding treatment; and (3) treatment cannot be provided without consent.123
A related exception is the so-called “therapeutic privilege,” which permits withholding information that
would “foreclose a rational decision, or complicate or hinder the treatment, or . . . pose psychological damage
to the patient.”124 This third exception is potentially the broadest and, if applied without care, could swallow
the disclosure rule. To prevent this from happening, it should only apply when the disclosure—not any mental
illness the patient might have—would bring about an irrational decision. As one court put it, it should have
effect only

when a doctor can prove by a preponderance of the evidence he relied upon facts which would demonstrate to a reasonable man the
disclosure would have so seriously upset the patient that the patient would not have been able to dispassionately weigh the risks of refusing to
undergo the recommended treatment.125

Finally, courts recognize an exception to the informed consent requirement when the patient is
incompetent, in which case the guardian rather than the patient should receive the information and give
permission for treatment. While plausible on the surface, this exception too can undermine the informed
consent doctrine, particularly its purpose of promoting autonomy by ensuring a collaborative relationship
between treater and treated. Indeed, even when proxy decisionmaking is necessary, the clinician should act as
a counselor126 rather than as a parent, for several reasons.127 First, participation by the patient in the
treatment plan is ethically mandated whenever possible.128 Second, strong evidence exists that such
collaboration is therapeutic in itself and often enhances the patient’s sense of and capacity to exercise

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autonomy.129 Third, for reasons that we explain below, reaching a definitive determination that someone is
incompetent is sometimes difficult, which suggests that the clinician should err on the side of treating the
person as competent.

(2) Competence

Competence to make treatment decisions is usually presumed unless the individuals involved are persons with
mental disabilities, elderly persons, or children. Even within these groups of “uncertain competence,” the
competence issue arises only in certain situations. First, and perhaps most common, the issue is often raised
when a person of uncertain competence refuses the treatment prescribed. Even when the patient is seriously
mentally ill, the competence of a patient who wants to accept recommended treatment usually goes
unquestioned unless the treatment is experimental or particularly intrusive. Second, as just suggested, if an
individual of uncertain competence is to undergo a major medical procedure or one that is experimental, a
physician may seek consultation to ensure that the patient can give informed consent. In this instance, the
evaluation is often motivated by desires to avoid malpractice litigation rather than concerns about the patient’s
autonomy. Third, evaluation may be sought when a patient who is de jure incompetent for most purposes
(e.g., a minor) is given legal authority, if de facto competent, to give informed consent in a particular limited,
legally sanctioned context (e.g., abortion).130 Again, the evaluation may be motivated more by litigation
wariness than by concern about how well the patient can make medical decisions.131 If the individual is found
incompetent in any of these situations, surrogate decisionmaking, of the type described in § 11.02, is usually
in order.
Regardless of how the issue arises, the elements of competence to consent to treatment are rarely
elaborated in law. This leaves to clinicians the task of analyzing and describing the scope and contours of a
competence evaluation. Among the earliest efforts to conceptualize these matters were psychiatrist Loren
Roth and his colleagues, who identified five types of competence tests that have been used in various settings:
expression of a preference, understanding, appreciation, reasonable decisionmaking process, and reasonable
outcome.132 These constructs, with some modification, have withstood the test of time and critical review.133
The simplest of these standards, and the one most respectful of autonomy, is expression of a preference.
Under this standard, as long as the patient can indicate a choice, that choice is deemed a competent one.
Generally, determination of competence under this standard is straightforward: The patient says yes
(competent), no (competent), or nothing (incompetent). Yet sometimes consent under this standard is not so
clear. Some patients are ambivalent and waver in their preferences. Consider, for example, a man who is
brought to a psychiatric emergency room and, after disclosure of risks and benefits, is advised to take an
injection of antipsychotic medication. He says no, but holds out his arm. His verbal utterance indicates
refusal, but his action implies a different choice. What preference is he expressing?
Of course, a policy of accepting any expressed choice as a proxy for competence virtually assures that
individuals of uncertain competence will make choices without knowing what they are choosing, and could
therefore result in outcomes contrary to what they would want if they could grasp their circumstances. The
standard of understanding is intended to reduce this risk; indeed, “competence is universally viewed as
incorporating the requirement that a patient have the ability to understand the information required to be

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disclosed.”134 Generally, the understanding standard aims to ensure that individuals have a reasonable
knowledge of the major information disclosed. The danger is that the legal threshold for understanding may
be set so high that most nonclinicians could not pass it. In such cases, individuals whose competence is
brought into question (e.g., those with mental illness) may be held to a higher standard than persons whose
competence is unquestioned.
Understanding is distinct from appreciation, which takes into account “cognitive and emotional factors
which impair a person’s ability to relate what she ‘understands’ about the reasons for choosing one or another
course of action to her own situation.”135 That is, “[a] patient may understand in an abstract sense the risk of a
particular treatment but fail to understand how those risks will affect her.”136 Under this standard, persons
who understand the nature, risks, and benefits of a procedure in the abstract, but who offer patently “crazy”
reasons for refusing the procedure, are incompetent. To keep the definition narrow, some courts and
commentators have insisted that a finding of incompetence to make a treatment decision, at least about
psychoactive medication, is inappropriate under this standard unless a person’s reasons for refusing (or
consenting to) treatment are truly out of touch with reality (e.g., “The medicine will make my head explode,”
a belief that the doctors are practicing witchcraft, or a belief that the medicine is poison).137 Mere insistence
that the medication will not work, has harmful effects, or is unnecessary may be insufficient evidence of
incompetence under this approach.
When the focus of the test shifts from understanding to the reasonableness of the decisionmaking process,
patients must not only understand or appreciate the major information that has been disclosed to them, but
also weigh the information rationally. According to one variant of this test, attention is focused on the
cognitive process itself. That is, does the patient consider each aspect of the information and evaluate the
expected value of each possible alternative? The major problem with this standard is that it assumes a
sophisticated level of reasoning and calculation that few people can actually exercise in treatment decisions.138
Another variant, advocated by Stone [see § 10.03(b)],139 is a determination of incompetence whenever a
decision to refuse treatment is “irrational and is based on or related to the diagnosed illness.”140 This
determination is likewise not as easy as it may sound. What if, for example, a patient declines medication
because “it makes my mouth dry [a real side effect], and the doctor doesn’t want me to tell the truth about the
FBI” (a case similar to Case Study 11.2)? Or if a person with delusions denies being mentally ill?141 If
individuals with florid delusions but a good factual understanding of the proffered treatment refuse it because
they cannot see that they need treatment, does this mean that their refusals are incompetent ones?
The final type of test—reasonable outcome—is the least respectful of personal autonomy. Under that
standard, a person is judged competent to consent if his or her decision, regardless of its foundation, is the
choice that a reasonable person would have made. Of course, most clinicians believe that reasonable persons
would accept the treatment they recommend.142 Thus, despite its being an “objective” test, assessment of
competence under a reasonable-outcome standard is especially vulnerable to an evaluator’s viewpoint. The test
does not leave room for preferences that are idiosyncratic, even if they are “knowing” and “intelligent.” In
addition, this test is problematic because it can be difficult to rank potential benefits and harms—a difficulty
compounded by situational differences and the impact of personal preferences on such decisionmaking.143
With these differing levels of competence in mind, we can revisit the argument, raised in the introduction
to this chapter, that the legal definition of competence should vary with the circumstances. This view would

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require a high degree of competence (e.g., the standard of reasonable outcome or rational decisionmaking)
when a patient seeks to consent to a very intrusive treatment with questionable efficacy and negative or
irreversible side effects (such as psychosurgery), or when a patient refuses a very benign treatment the benefit
of which is clear (such as insulin shots when the patient has diabetes). On the other hand, a mere ability to
express a reasonable preference might suffice in accepting a patient’s refusal to undergo psychosurgery or
consent to insulin shots. For treatments that fall in between, the understanding or appreciation test may make
more sense. For instance, one might argue that when the proposed treatment is psychotropic medication with
many potential side effects and only moderate efficacy, the treatment should be refusable by a person who
understands why his or her caregivers propose it and who has no grossly delusional beliefs about the treatment
or its efficacy.144 Unfortunately, as the discussion on the right to refuse medication [see § 11.03(b)] points
out, the courts have yet to articulate clear standards in this area.

(3) Voluntariness

As we have noted in other contexts [see §§ 1.03(a), 7.03], voluntariness is a legal rather than a mental health
issue, which can make it difficult to conceptualize clinically. To make things worse, the law has not invoked
this concept consistently or coherently. For instance, in a well-known 1973 case, one court worried that being
institutionalized might leave patients unable to consent voluntarily to particularly intrusive treatment (e.g.,
psychosurgery).145 Although hospitalized persons are subject to all sorts of pressures and restrictions [see §
11.03(c)(3)], this does not mean that their confinement would make consent to one form of treatment less
voluntary than consent to others. As a second example, courts have consistently considered voluntary
hospitalization to be voluntary in fact, despite the reality that many “voluntary” patients either are unaware of
their legal status or choose voluntary status to avoid involuntary commitment [see § 10.04(c)].
As these examples illustrate, separation of competence and voluntariness may also not be theoretically
sound. As a conceptual matter, one can imagine a person who has a thorough understanding of the pros and
cons of a proposed treatment and who has the capacity to reason quite logically, but who makes a decision
under duress. In many clinical situations, however, it can be hard to make such a clear distinction between
competence and voluntariness. The same immaturity in social and moral development that may make some
children and some adults with intellectual disabilities incapable of perceiving rights as applicable to themselves
(a cognitive deficit relevant to competence) may also render them vulnerable to influence by authorities (a
volitional deficit relevant to voluntariness).146 Similarly, competence itself is an interactive construct, in that
how well a person reasons may be affected by the supportiveness or stressfulness of the person’s social
context.147 In their broadest senses, competence and voluntariness are also bound up with both the legal and
clinical evaluator’s and the patient’s cultural backgrounds in ways that may require special sensitivity to
discern. As one commentator has noted, results from competence tests, “if applied in an indiscriminate way to
individuals from the non-dominant culture, can lead to faulty conclusions, and ultimately poor legal
decisions.”148

(b) The Right to Refuse Psychoactive Medication

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CASE STUDY 11.3

Mr. Jones, who tried to commit suicide after threatening to kill his girlfriend, has been committed to the state hospital as dangerous to self
and others. His diagnosis is schizophrenia. The treatment staff believes that the best treatment for him is quetiapine, an antipsychotic
medication. At first Mr. Jones takes the medication, and his psychotic symptoms disappear. After a few weeks, however, Mr. Jones
complains of drowsiness, hunger, and a 10-pound weight gain, and he refuses to take any more quetiapine. He says that he is not mentally
ill and that he would “rather die than take the medication.” When pressed, he also says that he would rather stay in the hospital longer than
be forced to take medication and be released sooner. After a few weeks without medication, his condition deteriorates to the point where he
believes that all the blond patients on the ward are “Nazis” who are out to kill him and his “pet dogs.” (In fact, the hospital allows no dogs
on its premises.)

Questions: What can be said about Mr. Jones’s decisionmaking capacity? His dangerousness? In arriving at answers to these questions,
what other information would you want? What procedures, clinical and legal, should be followed? Based on what you know, would you say
that Mr. Jones may be forcibly medicated?

Beyond the general legal requirements for consent to treatment, courts have developed a special body of law
concerning whether psychiatric patients may refuse antipsychotic medication. Well into the 1970s, it was
assumed that hospitals could administer such medication without consulting the patient or the family. Not
until such cases as Rennie v. Klein149 and Rogers v. Commissioner of Mental Health150 did civil rights litigators
shift their focus from tightening the criteria for commitment to the ways that hospitals treated those who
were committed.151 These and other cases recognized a right to refuse treatment that (in contrast to the
common-law basis supporting informed consent doctrine) derives from the Constitution. These cases rely on
a host of theories, including the First Amendment right to freedom of speech (and thought),152 the right to
avoid cruel and unusual punishment,153 the equal protection clause (given the right of persons who are not
mentally ill to avoid treatment absent informed consent),154 or the “penumbral” right to privacy and bodily
integrity (which comes closest to the Supreme Court’s approach, detailed below).155
Although the subject is often referred to as “the right to refuse treatment,” litigation generally focuses on
the right to refuse antipsychotic drugs—the medications that are the mainstay of treatment for schizophrenia
—rather than antidepressants, mood stabilizers or other types of treatment.156 Indeed, one court expressly
stated that the right to refuse applies solely to antipsychotic medications, in the belief that they have more
harmful side effects.157 This narrow focus probably resulted in part from the fact that the so-called “first-
generation” antipsychotic medications available when the seminal cases were litigated often caused serious
motor impairment. Patients could experience restlessness as well as tremors, muscle stiffness, and
emotionlessness typical of patients with Parkinson’s disease.158 Even more serious drug-related conditions
were “tardive dyskinesia,” a serious and sometimes irreversible disorder which affected as many as a third of
persons exposed to antipsychotic drugs for long periods,159 and “neuroleptic malignant syndrome,” a rare side
effect but one that results in death 10% of the time.160
Second-generation antipsychotics (SGAs), the earliest of which were clozapine (1990), risperidone (1994),
and olanzapine (1996), are less likely to cause these neuromotor side effects.161 Yet these drugs, and the SGAs
that have become available more recently, can also cause serious problems. Clozapine requires frequent blood
testing to avoid potentially fatal agranulocytosis. Higher doses of risperidone and other higher-potency SGAs
can cause parkinsonian side effects like those caused by older drugs.162 All the SGAs place patients at risk for
developing metabolic problems, including weight gain, high blood lipids, hypertension, and diabetes mellitus;

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though the risks of this “metabolic syndrome” vary, patients who take any of the SGAs require clinical
monitoring of their weight, vital signs, and laboratory values.163 Although psychiatrists had hoped that the
lower incidence of neuromotor side effects would lead patients to take SGAs more consistently, a two-year
study found that patients taking SGAs quit taking medications at approximately the same rate as did those
taking a first-generation drug.164
In addition to concerns about side effects, two other concerns influence judicial thinking about the right to
refuse medication. First is the use of antipsychotic drugs as “chemical restraints,” where treatment became
either a secondary goal or entirely irrelevant.165 Second, even when medication eliminates psychotic or other
symptoms of mental disorder, it may suppress other, “normal” types of behavior as well;166 create new
psychological problems that the patient would rather not experience;167 or be administered in inappropriately
large dosages or with other drugs that are not compatible.168
Whereas litigation involving the “right to refuse treatment” was extraordinarily controversial during the
1970s and 1980s, today there is little argument that mental health patients have some right to refuse such
treatment,169 including the SGAs.170 The controversy centers instead on (1) identifying the situations in
which state interests are sufficiently compelling to overcome the individual’s right to refuse, and (2) the rigor
of procedures used to determine whether patients meet this standard. To a large extent, this debate is
analogous to the ongoing dispute over the appropriate scheme to be used in civil commitment [see Chapter
10]. That is, most persons interested in the issue acknowledge that patients have at least some interest in
avoiding involuntary treatment, but most also recognize that in some circumstances, involuntary
hospitalization is justified.
How one thinks about the right to refuse depends on whether one conceives of treatment refusal as a
medical or a legal problem. Some psychiatrists perceive a treatment refusal as itself a symptom—a
manifestation of the lack of insight that a patient’s psychotic illness produces.171 Viewed in this way, not
taking medication does harm to the patient (and potentially others) in the form of persistent psychosis (which
may damage the brain172) and because of the resulting need to impose more physically restrictive interventions
such as long-term hospitalization or restraints. To some who hold this viewpoint, the clinical problems caused
by treatment refusals are merely worsened by court proceedings that divert resources and clinicians’ time away
from giving care to these patients.173 From a legal perspective, however, forcing treatment upon someone is a
gross intrusion on individual autonomy and privacy—interests that are as important to persons with mental
disorders as they are to everyone else. Because these interests are at risk, a decision to administer treatment
involuntarily is a legal and moral issue that should be decided by a judge or jury.
The United States Supreme Court has sent mixed signals about the right to refuse treatment, and has yet
to delimit fully the constitutional contours of the right. At issue in Washington v. Harper174 was a state prison
policy that permitted involuntary medication if a three-person committee (composed of two mental health
professionals and the associate superintendent of the prison) concluded that the refusing prisoner suffered
from a “mental disorder” and was either “gravely disabled” or posed a “substantial risk” of “serious harm” to
self or to others. Through counsel, Harper argued that this policy was unconstitutional because it deprived
him of liberty without due process; instead, Harper contended, forcible medication should be allowed only
after a finding of incompetence by a court and a further finding that the medication was in the person’s best
interests under the “substituted-judgment” standard. Six members of the Court disagreed with both the

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substantive standard and the legal procedures Harper proposed, and upheld the prison policy.
Noting the potential side effects of psychiatric medication, the majority had “no doubt” that citizens have
“a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment.” But it concluded that the state has an even stronger interest
in ensuring the safety of prisoners and prison staff. According to the majority, as long as antipsychotic
medication is administered “for no purpose other than treatment” that is designed to further these objectives, a
prisoner, even a competent one, cannot refuse it. On the procedural issue, the Court followed its tendency to
allow informality in civil commitment proceedings and other mental health contexts.175 The Court concluded
that in light of the variable nature of competence, the expense of judicial proceedings, and the state’s
requirement that the treatment refusal board not be composed of staff currently treating the prisoner, the
state’s review procedure was constitutional. It also found that counsel need not be provided during the
hearing.
What does Harper entail regarding medication refusals by individuals who have been civilly committed,
committed after an insanity acquittal, or hospitalized after a finding of incompetence? Winick argued that the
implications are minimal, given that Harper focused on the prison setting.176 But the state’s interest in
protecting confinees and staff is just as strong in these other settings, and the individual’s interest in avoiding
medication is no stronger.
At the same time, Harper suggests that a competent individual should be able to refuse medication
administered for a “purpose other than treatment” or administered to someone who is not dangerous or
gravely disabled.177 The Supreme Court seemed to reinforce this point in its second right-to-refuse case,
Riggins v. Nevada.178 In this case, a defendant being tried for capital murder was medicated with thioridazine
(Mellaril) at 800 mg/day, ostensibly to ensure his competence for trial. Noting that this dosage was high and
may have impaired Riggins’s ability to communicate with his attorney,179 a seven-member majority held that
the state had failed to show the drug treatment “was medically appropriate and, considering less intrusive
alternatives, essential [either to maintain] Riggins’ own safety or the safety of others” or to “obtain an
adjudication of Riggins’ guilt or innocence.” The Court remanded the case for a determination as to whether
the medication dosage affected Riggins’s ability to testify and interact with counsel.
Riggins is important not only because it emphasized Harper’s requirement that involuntary medication be a
medically appropriate means of implementing an important state objective, but also because it stressed, in the
language quoted above, that the medication must be the least intrusive means of achieving this objective.
Whether this latter aspect of the decision applies beyond the trial context at issue in Riggins is unclear,
however; the Court may have thought that because trial defendants have an interest not only in avoiding
medication side effects per se, but also in retaining sufficient mental clarity to consult with counsel, their
treatment requires more intense constitutional scrutiny than treatment imposed on persons who are civilly or
criminally committed.
The Court’s next medication refusal case, Sell v. United States,180 dealt with the state’s authority to
medicate a criminal defendant whom the state wants to render competent to proceed. As recounted in §
6.04(d), the decision seems to go beyond Riggins by holding that even when medication is medically
appropriate and does not compromise the criminal defendant’s ability to participate at trial, it may not be
administered involuntarily unless (1) the defendant is dangerous to self or others, or (2) the crime with which

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he or she is charged is “serious.”181 However, these two exceptions, read broadly, could swallow the right of
incompetent defendants to refuse, especially if combined with the decision’s further intimation that
incompetence to make treatment decisions (which would encompass most defendants who are incompetent to
stand trial) constitutes a third exception to its rule.182 Nonetheless, as of 2012, roughly one-third of the
federal decisions addressing forcible medication of defendants found incompetent to proceed favored the
defendant.183 Perhaps one reason is that Sell also requires that the medication be “substantially likely” to
restore the defendant, which some courts equate with a probability above 50%.184
The Court has not addressed the right to refuse medication for those who are subject to civil commitment.
Even if Sell and Riggins provide a robust right to refuse in the criminal trial context, the Court might take a
different view of the right in the commitment setting. First, because Riggins and Sell dealt with the criminal
trial, where constitutional principles have always had more impact, their implications for civilly committed
persons may be minimal. Second, all the Court’s medication refusal cases allow forcible medication when an
individual is dangerous to self or dangerous to others—the two primary criteria for commitment. And the
leading Supreme Court case construing those criteria, Harper, seemed to construe “dangerous” broadly, given
its willingness to uphold a policy that permitted involuntary medication both of “gravely disabled” persons and
of persons whose danger was not necessarily “imminent.” Finally, even if Riggins’s least-intrusive-means
principle were to be applied outside the criminal trial context, its scope would likely be narrow. In Harper, the
Court responded to the prisoner’s argument that physical restraints were a less drastic way of achieving the
state’s goal of preventing harm simply by stating that this suggestion was “in no way responsive to the state’s
legitimate interests.” Other Court decisions, particularly Youngberg v. Romeo,185 suggest that the Court will
view the state’s “professional judgment” as dispositive on the issue of whether medication is the least intrusive
method for achieving its goals.186 However, when the goal is preventing self-harm, some courts have also
required a showing of incompetence to make treatment decisions.187
With respect to procedure, which is at least as important as the substantive standard, the federal courts also
tend to eschew restrictions on clinical decisionmaking. Although Harper approved an administrative
procedure, it did not require even that amount of process as a constitutional matter; Supreme Court cases in
related contexts suggest that something less may be sufficient.188 Many lower courts have required a judicial
determination of incompetence or dangerousness in nonemergency situations,189 but others permit an
administrative procedure such as that sanctioned by Harper or allow the treating professional’s decision to go
unreviewed.190 The argument for avoiding judicial involvement is that waiting for a court to rule delays
needed treatment and creates substantial costs.191 At the same time, research indicates that a procedure like
that endorsed in Harper, where the review board is staffed by people from the same ward as those who make
the initial recommendation for medication, is likely to be biased.192 One way to balance independence and
efficiency is to require, in nonemergency situations, a review of the refusing person’s situation by a panel
composed of staff members from a different ward or, where possible, a different institution.193 The proportion
of refusals in civil populations (normally well under 15%194) is typically not so great that this requirement
would be unduly burdensome, and the individual’s interest in an accurate, relatively unbiased decision on
complex issues such as incompetence, dangerousness, and medical appropriateness is significant.
As this discussion makes clear, Harper, Riggins, and Sell only address the federal constitutional minima for
a right to refuse psychotropic medications. State courts can and have been more protective of individual

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interests in this regard. A number of cases have also indicated that when the treatment seems even more
intrusive (e.g., psychosurgery and electroconvulsive therapy), patients may have a greater right to refuse, and
even guardians have a more constrained right to consent.195
At the same time, the overall effect of increased legal procedures on patients’ treatment must be
considered. Viewed from the standpoint of improving the care of hospitalized patients, the litigation that led
to the current right to refuse may represent an instance of “grabbing the problem by the wrong handle.” As
psychiatrist Thomas Gutheil and his colleagues note, care of psychiatric inpatients has long been “stigmatized,
underfunded, and undersupplied.”196 They allege that the primary effect of providing judicial hearings before
treatment can be imposed is merely to delay treatment. Responding to a quality-of-care problem by creating a
legal response to treatment refusal “actually worsened the treatment for those patients [who refused],
prolonged their hospitalizations, increased the costs, paralyzed and discouraged treatment staff, and—perhaps
most important—disrupted the care of other, treatment-compliant patients on the same wards.”197

(c) Research on Informed Consent

(1) Disclosure

Research suggests that in actual practice, mental health professionals often deviate from the spirit of informed
consent.198 Ironically, this deficiency may stem in part from the use of consent forms meant to address
legalistic concerns. The forms are often lengthy (which research suggests is inversely related to
understanding199) and written in vocabulary beyond the comprehension of many or even most patients.200
However, even concise forms do not always lead to better comprehension. As one study that attempted to
assess the impact on decision-making and comprehension of a short form found, “The longer consent form
did not generate greater comprehension, and the concise form did not enhance satisfaction. Surprisingly,
volunteers who reported financial considerations to be their primary motivation for participating had
significantly greater comprehension.”201
Legalistic or not, forms are often presented as a mere formality.202 Even in package inserts approved by the
Food and Drug Administration, information about the risk of tardive dyskinesia is minimal, and few patients
who are undergoing treatment know that they face this risk even with SGAs.203 In discussions with treating
clinicians, such omissions may occur because psychiatrists either believe that severely impaired patients lack
capacity to weigh information well enough to share in decisionmaking about their treatment, or fear that
disclosure will adversely affect patient care.204
Treating patients this way sounds paternalistic and certainly contradicts published practice guidelines.205
But while receiving information causes no direct harm to any patient, it does not necessarily result in good
decisionmaking. Years ago, researchers showed that mere mention of a risk or benefit may cause exaggerated
concern or hope; information designed to convince people that various “disaster scenarios” are unlikely often
backfires and makes people more alarmed.206 Even among “normal” individuals, perceptions of and responses
to risks and benefits are not just matters of rational calculation; people judge activities on the basis of
stereotypic patterns or their feelings about the activities, and they mentally replace relevant but difficult-to-
process attributes with irrelevant attributes that they can more easily process.207 People also overestimate the
significance of risks if the negative consequences are “easy to imagine.”208 As a result of these heuristic

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problems, one commentator has concluded:

Subjects’ autonomy is arguably only protected if they are given all of the information that would make a difference to their decision to
participate. But if certain pieces of information make a difference by inducing an inaccurate picture of the risks and benefits . . . , disclosing
such information may lead people to act in a manner contrary to their best interests. In other words, fully preserving subjects’ autonomy may
require sacrificing their welfare, and vice versa.209

In light of this information, the benefits of disclosure—and therefore, the extent of the obligation to
disclose—become somewhat murky. For instance, should a psychotic patient who needs an SGA be told of
the possibility of neuroleptic malignant syndrome, which, as noted previously, is rare but results in death 10%
of the time? Does the possibility that a patient would “irrationally” fixate on the “easily imagined”
consequence (death) and ignore its low probability justify invoking the “therapeutic” exception to the
informed consent doctrine? Or is the fact that the patient might “fixate” on the consequence rather than the
probability irrelevant, because respect for autonomy mandates that acting upon one’s preferences, however
wrong they may seem to others, must take priority?
As to the format for disclosing information, besides the obvious point that easily understandable language
should be used, data from the MacArthur Foundation Research Network on Mental Health and Law suggests
that repetition and staged disclosure are advisable.210 The group’s research indicates that all persons, whether
hospitalized or not, “manifested considerably better understanding of the treatment information after it was
disclosed to them part by part the second time (element disclosure) than when disclosed as a whole the first
time (uninterrupted disclosure).”211 In other words, after an initial full disclosure, a second disclosure,
following a step-by-step process in which the patient is asked to summarize or paraphrase each element of
information (e.g., alternatives, risks, and benefits) after each step, is likely to improve “competence”
significantly.212
Apart from issues of form and content of disclosure is the issue of how one documents that valid informed
consent was obtained. This issue can be critical if a lawsuit is filed alleging that the clinician committed
battery or treated the patient without obtaining valid consent. Yet one study of 30 psychiatrists’
documentation practices revealed that, on average, documentation of informed consent to take psychotropic
medication appeared in only 23% of their patients’ charts.213 A written consent disclosure that records not
only the information provided to the patient, but also the basis for the clinician’s judgment that the patient
gave valid consent, provides an easy way to secure this important documentation. Several measures suitable for
this purpose are noted below [see § 11.03(d)].

(2) Competence

The effects of varying disclosure levels, just described, make many of the studies on competence suspect. Early
naturalistic studies of patients’ competence to consent, whether of medical or psychiatric patients, reported
substantial gaps in relevant knowledge.214 But these studies usually failed to document what information had
been disclosed,215 thus leaving unclear whether the findings reflected lack of disclosure or incompetence.
Several subsequent studies that remedied this problem, conducted in mental health settings, yielded
inconsistent results. Soskis found that, relative to medical patients, people with schizophrenia tended to have a
good understanding of the risks of their medication.216 Similarly, Jaffe found no differences in understanding

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between two groups of 16 outpatients, one treated for mental disorder and the other for a physical
condition;217 another study, comparing elderly depressed persons with nonpsychiatrically ill older persons,
obtained similar results.218 Yet several studies have also found that poor understanding occurs when patients
suffer from thought disorder, brain dysfunction, psychosis, or schizophrenia (as opposed to depression).219
The best-constructed study to date produced results somewhere between those obtained in these two
groups of research: It found that fewer than half of persons with significant mental illness were incompetent,
but that severely mentally ill individuals, particularly those with thought disorders, were less likely to be
competent to make treatment decisions than other groups.220 Using the step-by-step disclosure of
information described earlier, and well-conceptualized instruments that measure understanding, appreciation,
and reasoning ability,221 the MacArthur research team compared the competence of six groups—three groups
of hospitalized patients, and three control groups of nonhospitalized persons taken from the same
communities as the patients. Patients in one of the hospital groups had schizophrenia or schizoaffective
disorder; the second hospital group had major depression; and the third hospital group was from a medical
hospital unit that treated heart disease.
The study yielded three main findings. First, on the measures of understanding, appreciation, and
reasoning, patients with mental illnesses were more likely to display deficits in performance than were
medically ill patients and the nonhospitalized control groups. Indeed, when the most highly impaired
subgroups were identified on each measure, they were composed almost entirely of the patients with mental
illnesses.
Second, despite overall lower levels of performance in the groups with mental illnesses, the patients with
schizophrenia and depression displayed substantial diversity in capabilities. Patients with schizophrenia had
impairments in performance that were more pronounced and more consistent than those of patients with
depression. This finding was consistent with a large body of research published before and since the
MacArthur research, establishing that persons with schizophrenia (as a group) suffer from a broad array of
cognitive impairments.222 Even so, on any given measure of decisional abilities, most patients with
schizophrenia did not perform worse than other patients and nonpatients. The poorer mean performance of
the group with schizophrenia on any particular measure was due to a minority within that group.
Third, among patients with schizophrenia, the minority with poorer performance on the measures of
understanding and reasoning tended to have more severe psychiatric symptoms, especially thought disturbance
(e.g., conceptual disorganization, unusual thoughts). These results are in keeping with both theory and
empirical findings regarding cognitive deficits associated with schizophrenia.223 Apart from this difference,
however, this poorer-functioning subgroup was not distinguishable on the basis of other demographic, mental
status, or patienthood variables used in this study.224
Based on these data, the authors concluded that “the justification for a blanket denial of the right to
consent to or refuse treatment for persons hospitalized because of mental illness cannot be based on the
assumption that they uniformly lack decision-making capacity.”225 Many persons with thought disorders are
not incompetent. At the same time, between 23 and 52% of those patients hospitalized with schizophrenia,
and between 5 and 24% hospitalized with major depression, had substantially impaired decisionmaking; the
rates of impairment were much smaller in the control groups.226 Thus persons with these diagnoses are more
“at risk” of incompetence than people with no such diagnosis. Furthermore, given these percentages, to the

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extent that competence assessment focuses solely on patients who refuse treatment (who, as noted above,
normally constitute at most 15% of those who receive treatment), it may miss assenting patients whose
treatment competence should be questioned (although it is likely that any proxy decisionmakers appointed for
this latter group would authorize the treatment being proposed in any event).
Other studies, using a variety of research measures for assessing capacity to consent to treatment, have both
confirmed and extended the main findings of the MacArthur network studies.227 First, consistent with some
earlier literature,228 people with major mental disorders (particularly schizophrenia-spectrum disorders and
Alzheimer’s disorder) perform more poorly than do other patient groups (e.g., people with depression) or
nonpatient controls.229 Second, despite poorer mean scores on measures of capacity, patients’ scores vary, and
substantial numbers of mental patients do as well as control participants.230 Third, although severity of
current symptoms is associated with impaired capacity,231 some studies indicate that cognitive impairment is
associated more strongly with impaired capacity than is psychiatric status.232 Finally, brief educational
interventions can improve the capacity to consent to treatment of people with depression233 or psychosis.234
Similar interventions can help people with schizophrenia involved in research. Concerning this last group,
researchers have concluded that informed consent is best viewed as an ongoing dialogue,235 which represents
an affirmation of the original vision of informed consent articulated by Jay Katz.236
These findings have important implications for clinical practice in the assessment of competence to consent
to treatment. First, the fact that substantial numbers of patients with mental illness perform as well as controls
without mental illness refutes any assumption that serious mental disorder necessarily results in incompetence.
Perhaps more importantly, the finding that the capacities of many patients improve with educational
interventions tells us that patients should not be declared (clinically) incompetent merely because of poor
performance on their first exposure to competence inquiries. Mental health professionals should not make
final judgments of capacity until they have tried to educate patients about the details of information disclosed
in ways that will facilitate optimal comprehension.
With respect to the competence of youth, most of the research on developmental factors in competence to
consent to treatment comes from nonclinical samples.237 In a now-classic study that is still cited frequently,
Weithorn and Campbell asked 9-, 14-, and 18-year-olds to decide several hypothetical situations involving
physical or mental health problems.238 In general, the 14-year-olds were as competent as adults in making
treatment decisions—not just in terms of outcome, but in terms of understanding the alternative treatments
and their risks and benefits, and in terms of rationally weighing such information. Even the 9-year-olds,
although deficient in reasoning capacity, did not differ from adults in their ability to express a preference or
reach a reasonable outcome (i.e., the choice that a panel of experts would have made). Recent studies confirm
these findings in clinical populations. For example, among a group of minor patients deemed eligible for
research studies and judged according to the “understanding, appreciation, reasoning, and choice” rubric
discussed earlier in this chapter, children younger than 9 years were unlikely to be competent, but competence
was likely by age 11 years.239 This kind of research underlies the current view favoring involvement of children
in treatment decisions to promote a sense of autonomy and facilitate treatment.240

(3) Voluntariness

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When is consent given in mental health care settings truly voluntary? During an involuntary hospitalization,
for example, is a patient’s agreement to take medication the outcome of a free choice, or the result of the
control and influence of hospital staff members? Grisso has suggested that persons in institutions may have a
“power deficiency,” arising from their membership in relatively powerless segments of society and from the
fact that the hospital is the doctors’, not the patients’, “turf.”241 He also points to Goffman’s classic
Asylums,242 a work that described how entrance into an institution alters one’s identity and exerts an
extraordinary limitation on freedom. Finally, Grisso notes research suggesting that hospital patients come to
believe noncompliance with doctors’ requests can mean that other services will be withheld.243
Exacerbating these possible institutionalization effects are two other phenomena that can affect outpatients
as well. As already noted, medical professionals typically treat consent requirements in a pro forma fashion.
They often fail to make an effort to involve patients in a truly collaborative relationship and may cajole
agreement to accept a particular treatment.244 (It is noteworthy in this regard that obviously nonconsensual
treatment was historically common on general medical wards as well as psychiatric wards.245) Even as
informed consent has become an accepted, standard ethical and legal principle, other barriers exist to
informed decisionmaking by patients. For example, physicians may overestimate their communication abilities
in regard to patients,246 and language and cultural barriers to communication may impede patient health
literacy.247 Moreover, inpatients and outpatients who face difficult, complex treatment choices often want to
and do rely on their doctors’ knowledge, good intentions, and guidance—factors that doctors may use to
“nudge” patients subtly toward “good” choices.248

(d) Evaluating Competence to Make Treatment Decisions

When a patient’s competence to consent to a particular proposed treatment is at issue, the evaluator’s task is
to determine whether the elements of informed consent are present. In most cases, the first step is to ask the
patient’s caregivers what they have told, or tried to tell, the patient about the treatment. If talking with the
patient reveals that he or she has misunderstandings or points of ignorance about the treatment, the evaluator
should to try to teach the relevant information (using the “element,” step-by-step approach noted previously)
to see whether any perceived problems in understanding are simply the result of inadequate disclosure. To do
this, the evaluator will obviously need basic knowledge about the proposed treatment. Unless the clinician
thinks that the patient will feel intimidated in the presence of the treating physician, it may be useful to have
the treating physician present for at least part of the interview to answer the patient’s questions and to try to
clear up misunderstandings.
After such disclosure, the person’s competence can be assessed. Here the clinician will want to learn what
the patient understands about the nature and purpose of the treatment, its risks and benefits, alternative
treatments, and their risks and benefits (the understanding component of competence); the patient’s ability to
process this information (the reasoning component); and the patient’s ability to apply it to his or her situation
(the appreciation component). Evaluating the patient’s reasoning and appreciation requires learning about the
patient’s reasons for consenting or refusing consent.
This last information may also help the evaluator assess the voluntariness of consent. In addition, the
evaluator should be aware of situational factors that may affect voluntariness. Research shows that caregivers

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can induce patients to comply with increasingly demanding requests if the patients have first agreed to
relatively small, “easy” requests.249 The effects of being hospitalized can be investigated by asking whether the
patient believes that agreeing to the treatment is a condition of receiving other benefits, and by stressing that
the decision is up to the patient rather than the treating physician.
If the task is to assess a patient’s general competence to consent to treatment (i.e., outside the context of
considering a specific treatment), presenting hypothetical treatment decisions and then probing as described
above can be a useful strategy. In that regard, several vignette-based instruments are now available, and
examiners who plan to conduct many evaluations of this type may benefit from developing expertise in their
use.250
Additional issues arise when a clinician is evaluating whether psychoactive medication should be
administered involuntarily. First, depending on the relevant state law, the clinician may need to evaluate the
individual’s dangerousness or likelihood of deteriorating without the medication. Second, assessing whether
the medication is the only or most effective option is critical to answering questions about whether medication
is the least restrictive treatment alternative; while it may often be for most psychotic disorders, this is not
always the case.251 In some jurisdictions, clinicians make the ultimate decision on the competence,
dangerousness, and intrusiveness issues, often with very little direction as to how to weight these variables. For
example, in what was almost a “nonopinion” regarding the standard to be used, the Court of Appeals for the
First Circuit held that the federal Constitution requires only that clinicians do an “ad hoc balancing” of “the
varying interests of particular patients in refusing antipsychotic medication against the equally varying
interests of patients—and the state—in preventing violence,” with “neither . . . allowed necessarily to override
the other in a blanket fashion.”252 In a jurisdiction that requires a judge’s order to force medication, the
evaluator should provide relevant information about treatment options, understanding that the ultimate
decision about treatment rests with the court.
As noted above, there are several instruments for evaluating treatment competence, but the one with the
most extensive research grounding is the MacArthur Competence Assessment Tool for Treatment Decisions
(MacCAT-T).253 One of the instruments’ creators has provided an excellent summary article on assessing
treatment competence that includes a set of useful and easily adaptable questions suited to many medical
assessment settings.254 As this summary indicates, the MacCAT-T is relatively easy to use and takes about 20
minutes to administer. It involves a semistructured interview that consists of a series of disclosures and queries
relevant to the proposed treatment. Unlike the MacArthur research measures from which the MacCAT-T
was derived, the MacCAT-T is individualized to the patient’s particular treatment context. For each
assessment, the evaluator uses a basic template to “construct” a measure, the content of which is developed
from information in the patient’s chart and clinical history. The evaluator records information about
symptoms, diagnosis, and treatment needs in appropriate sections of the MacCAT-T record form and uses
this to organize the assessment.
For example, the Understanding portion of the MacCAT-T includes disclosures about (1) features of the
patient’s current disorder (active symptoms); (2) characteristics of the proposed treatment (e.g., medication
type, dosage, side effects) and alternative treatments (e.g., other medications or other forms of treatment); and
(3) risks and benefits associated with each treatment discussed. The Appreciation portion explores the
patient’s views and beliefs about the illness (i.e., whether the patients regards the symptoms described in the

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Understanding disclosure as legitimate concerns) and the proposed treatment (i.e., reasons for believing that
the treatment will/will not likely be of benefit). The Reasoning portion tests the patient’s ability to reflect on
the information provided, particularly in terms of ranking preferences among the available treatments,
explaining/justifying preferences in terms of possible consequences, and comparing treatments in terms of
risks and benefits. Clinician ratings of the patient’s responses lead to quantitative indices for capacities of
Understanding relevant information, Appreciation of one’s own clinical situation vis-à-vis the proposed
treatment, Reasoning about risks and benefits of potential treatment options, and ability to express a Choice
among treatment options.
Research to date has shown that use of this instrument results in highly reliable clinical judgments. For
example, Grisso and colleagues reported intraclass correlations (an index of rater agreement) of .99 for
Understanding, .91 for Reasoning, .87 for Appreciation, and .97 for expressing a Choice in a study of 40
patients with schizophrenia or schizoaffective disorder and 40 controls without mental illness.255 Buchanan
and colleagues used the MacCAT-T to structure assessments of 55 patients and reported high levels of
categorical agreement between two clinicians participating in the same clinical interview (kappa = .84) and
between two clinicians who evaluated the patients separately up to seven days apart (kappa = .82).256
Construct validity has also been demonstrated, in the sense that poorer MacCAT-T performance is associated
with more severe or debilitating psychiatric symptoms.257
Among the many other instruments available for assessing treatment competence,258 the Capacity to
Consent to Treatment Instrument (CCTI)259 merits mention as another tool with substantial research
backing.260 The CCTI uses two clinical vignettes presenting hypothetical medical problems and symptoms,
and two treatment alternatives with associated risks and benefits. A patient is asked 14 questions designed to
evaluate capacities relevant to competence to consent to treatment. Grisso notes that one of the CCTI’s
strengths is its use of constructs drawn from legal analysis of competence, which is derived largely from the
sources reported above. While the CCTI was developed specifically to explore competence in patients with
Alzheimer’s disease, the CCTI should help an examiner to delineate relevant differences between
nondisordered comparison subjects and individuals with other serious mental disorders (e.g., schizophrenia
and depression).261

(e) Research on, and Evaluations for, Psychiatric Advance Directives

In § 11.02(e), we provided a general discussion of psychiatric advance directives (PADs)—mechanisms

through which people provide for decisions regarding future treatment, in the event that they become
incompetent to make those decisions. A finding of incompetence to consent to psychiatric treatment might
lead to the activation of a patient’s previously completed PAD. Here we briefly discuss research on PADs and
the clinical assessment of competence to create a PAD.
PADs come in three types.262 One type provides advance instructions that express the patient’s preferences
regarding treatment. Advance instructions can include “prescriptions” (the specification of treatments or
interventions that the consumer wants to receive) as well as “proscriptions” (the specification of treatments or
interventions that the consumer does not want to receive). A second type of PAD designates a proxy
decisionmaker, sometimes called a “mental health power of attorney,” to whom the consumer gives legal

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authority to make decisions should the individual become incompetent to decide on his or her own. A third
type of PAD is a hybrid of the first two: It specifies the individual’s treatment preferences and designates a
proxy decisionmaker responsible for implementing those preferences and for making other mental-health-
related decisions.
Most states provide for general health care advance directives, and many states specifically recognize
PADs. Yet studies suggest that without encouragement and assistance, only a small fraction of patients (4–
13%) complete a PAD.263 Moreover, the rates of PAD completion do not seem to vary with the presence of
explicit PAD statutes.264 At the same time, several studies indicate that mental health consumers are generally
favorably disposed toward PADs. In one study that examined the attitudes of 40 individuals with serious and
persistent mental illnesses (primarily schizophrenia), 87% of those responding approved of PADs, and 75% of
those indicating a willingness to complete a PAD did so.265 Other studies of larger populations found
similarly large proportions interested in completing PADs, ranging from 53 to 77%.266 Swanson and
colleagues also reported that the primary correlates of an expressed desire to have a PAD included (1) self-
reported past experiences of pressure to take medication or otherwise participate in treatment, (2) a recent
arrest experience, (3) a history of suicidality or self-harm, and (4) feelings of disempowerment. On the other
hand, correlates of actually having completed a PAD included (1) feelings of disempowerment in life generally,
(2) high insight, (3) more available social resources, and (4) being married or cohabitating.267 Also, a North
Carolina study showed that providing trained facilitators to help with advance directives dramatically
increased rates of completion.268
Among the factors that account for the comparatively modest use of PADs269 are these:

Clinical and operational barriers to their use.

Stakeholder reluctance to use them.
Difficulties in implementation.
Liability concerns regarding implementation or overriding of preferences.
Systemic continuity of care that incorporates the patient’s preferences.

Perhaps because of concern that patients will use PADs to stipulate that they receive no treatment in the
future,270 psychiatrists most strongly support the type of PAD that names a proxy decisionmaker but provide
no instructions.271 Patients seem to prefer that option as well. Studies suggest that most patients’ directives
endorse deference to the treating psychiatrist’s judgment or continuing the present treatment; proscriptive
provisions focus on excluding specific interventions (e.g., electroconvulsive therapy or a particular medication)
rather than on denying/refusing any or all treatment.272
Because a PAD is a legal document, a question may arise as to whether the person completing it was
competent when he or she prepared it. A determination that the person was incompetent would presumably
invalidate its provisions, whereas evidence that the person was competent would support its execution if the
person later became incompetent to make treatment decisions. One way to avert future questions about the
individual’s competence would be to document that competence contemporaneously with the PAD’s
preparation. Although a clinical description of the individual’s mental status might suffice for this purpose,
Srebnik and colleagues have developed a structured assessment approach: the Competence Assessment Tool
for Psychiatric Advance Directives (CAT-PAD).273 Like other contemporary measures of competence-

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related abilities [see, e.g., §§ 6.06, 11.03(d), 11.04(c)], the CAT-PAD contains subscales that assess three
distinct capacities related to decisionmaking. The Understanding subscale assesses ability to grasp the key
components of PADs (e.g., they involve delineating treatment preferences or designating a proxy
decisionmaker). The Reasoning subscale taps the capacity to draw inferences about how PADs would affect
the individual’s life and treatment. The Appreciation subscale assesses the individual’s recognition of the
relevance of a PAD’s provisions to his or her own specific situation. In a test of the CAT-PAD administered
to 80 individuals with major mental disorders, Srebnik and colleagues reported satisfactory subscale
consistency and between-rater agreement.274 The authors also noted that their participants’ generally good
performance on the CAT-PAD was consistent with findings of an earlier study reporting that a large majority
of individuals with serious mental disorders correctly understood important PAD concepts.275
Srebnik et al. think that screening for competence to complete a PAD is most appropriate when doubt
about an individual’s capacity might “lead to later challenges to the validity of a PAD.” Such screening might
identify problems with decisional capacity that could be remediated via education to allow completion of a
valid PAD.276 A subsequent 469-subject study appeared to bear this out. Using a short version of the CAT-
PAD, Elbogen and colleagues showed that identifying and remediating decisionmaking deficits in individuals
with psychoses boosted their competence and thereby improved the likelihood that their PADs would be
deemed valid.277
Clinicians should take great care in determining when to act upon completed PADs. Patients who are in
crisis or have decompensated present varying clinical pictures and inconsistency in their decisionmaking
behavior. PADs are operative only when their preparers are clearly incompetent to make treatment decisions
for themselves. Activating a PAD prior to a patient’s becoming legally incompetent may result in depriving
him or her of the right to determine treatment and prematurely passing that authority on to the proxy
decisionmaker. In some jurisdictions, a court’s determination of incompetence may be required.
Despite difficulties in implementation, psychiatric advance directives will play an important role in
administering care consistent with patients’ wishes. PADs have the potential to enhance patients’ autonomy,
promote their active participation in their own care, reduce use of restrictive treatment, improve the alliances
between patients and caregivers, and facilitate the integration of care across systems. PADs thus should appeal
to health care consumers who desire greater choice and self-determination, to clinicians who enjoy the
benefits of better treatment alliances, and to care systems that benefit from better-coordinated care.278

11.04. COMPETENCE TO CONSENT TO RESEARCH

A subcategory of informed consent doctrine looks at consent to participate in research. The potential benefits
of research on new mental health treatments are fairly obvious, whether the treatments are psychological or
medical in nature. Because research in the social and behavioral sciences carries little or no risk of significant
harm to subjects, it has rarely resulted in “malresearch” litigation.279 But research on biomedical matters often
does present significant (and sometimes unknown) risks for the participants.280 Furthermore, such research
presents serious ethical problems when practiced on persons of questionable competence. Here the usual
tension in mental health law between autonomy (patients’ rights to choose whether to participate) and
paternalism (clinicians’ or researchers’ making this decision) is heightened, particularly if experimental

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treatments often do not provide direct benefit to the participants. Thus some knowledge of the special rules
for obtaining consent in this situation is important.

(a) Legal Requirements

The Nuremburg Code, enacted after horrific human rights abuses in Nazi Germany carried out in the name
of research, established the legal framework in this area by prohibiting any research using persons who cannot
provide valid informed consent.281 In the United States, human subjects research is regulated primarily by
rules promulgated by the Department of Health and Human Services282 and adopted by most other federal
agencies.283 Procedurally, these regulations provide for administrative review of all human research by local
institutional review boards (IRBs). Substantively, they often require that participants provide informed
consent. To these ends, the regulations require the following disclosures:

(1) a statement that the study involves research, an explanation of the purposes of the research, the expected duration of the subject’s
participation, a description of the research procedures and identification of any experimental procedures;
(2) the reasonably foreseeable risks or discomforts to the subject;
(3) benefits to the subject or others that the research might yield;
(4) appropriate alternative procedures or courses of treatment that might be advantageous to the subject;
(5) the extent, if any, of confidentiality of records identifying the subject (under Health Insurance Portability and Accountability Act
[HIPAA] or other legal rules);284
(6) if the research involves more than minimal risk, an explanation as to any compensation and whether any medical treatments are available
in the event of injury;
(7) a contact for answers to questions regarding the research as well as subject rights; and
(8) a statement that participation is voluntary, that refusal to participate will carry no loss of benefits, and that participation may be
discontinued at any time without penalty.285

Additional elements of informed consent are applicable “when appropriate”:

(1) if the subject is or may become pregnant, a statement that the treatment or procedure may involve risks to the fetus or embryo, or subject,
which are currently unforeseeable;
(2) circumstances under which the subject’s participation may be terminated by the investigator without subject consent;
(3) costs that may accrue to the subject as a result of the research;
(4) procedures for orderly termination of participation by the subject and potential consequences on withdrawal;
(5) a statement that significant new findings developed during the research that may relate to continued participation will be provided to the
subject; and
(6) the approximate number of subjects in the study.286

However, the IRB may waive the requirements for full disclosure if the proposed research involves no more
than “minimal risk” to the subjects, the waiver or alteration will not adversely affect the rights and welfare of
the subjects, or the research could not practicably be carried out without the waiver or alteration. Whenever
appropriate in such situations, the subjects should be provided with additional pertinent information after
participation.287 The regulations define “minimal risk” to mean that “the probability and magnitude of harm
or discomfort anticipated in the research are no greater in and of themselves than those ordinarily encountered
in daily life or during the performance of routine physical or psychological examinations or tests.”288 Under
changes proposed to the Common Rule (but not yet adopted at this writing), minimal risk is clarified to
include the following:

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 The reference group with respect to how risk is experienced should be the general population, not the
group subject to the research.
Minimal risk might include high probability but low magnitude risks and high magnitude but low
probability risks.
IRBs should avoid overestimating confidentiality risks.289

Drawing from the seminal work of the National Commission for the Protection of Human Subjects of
Biomedical and Behavioral Research,290 the regulations also provide special requirements for research
involving participants of uncertain competence.291 Research on prisoners, for example, is forbidden (because
of the potential for coercion) unless the research (1) is directly related to study of criminal behavior or
incarceration and involves only risks that would be accepted by nonprisoner volunteers,292 and (2) does not
involve incentives for participation that would unduly influence decisions whether to participate.293 Research
on children generally requires the assent of the children themselves and the permission of their parents.294
Additional review is required when the research involves more than minimal risk295 or when the potential
participants are wards of the state.296 The IRB may waive the requirement for parental consent if parental
involvement would harm, or at least not protect, potential child participants (e.g., neglected or abused
children).297
On the other hand, the Department of Health and Human Services never implemented proposed
regulations for research involving persons described as the “institutionalized mentally infirm.”298 Research
involving psychiatric patients follows the general regulations on human research and requires the informed
consent of the patients themselves or their legal representatives (e.g., guardians). IRBs, of course, remain free
to require more protection than do the regulations themselves. In general, people with mental disorders are
widely recognized as a potentially vulnerable population who may need special protections and particularly
careful assessment with respect to their capacity to consent to research participation.299

(b) Research

Since the mid-1990s, empirical work focusing on capacity to consent to research participation has grown
substantially.300 In the face of studies suggesting that traditional clinical measures have little utility in this
area,301 several research measures have been developed that specifically assess various abilities relevant to
competence to consent to research participation.302 The results from the research broadly parallel those
obtained in studies of capacity to consent to treatment.303 First, people with more serious disorders perform
more poorly on structured measures of capacity than do either those with less serious disorders or control
subjects who do not have mental illness. People with mild to moderate Alzheimer’s disease perform poorly in
absolute terms304 and in comparison to people with schizophrenia,305 whereas people with schizophrenia
perform more poorly than those diagnosed with depression306 or control subjects,307 and people with
depression often show good competence-related skills.308
Second, although many people with various mental disorders display impaired capacities relative to
comparison subjects with no mental illness, abilities within diagnostic groups vary considerably, and they vary
within individuals over time.309 Many individuals with disorders such as schizophrenia and depression display

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competence-related abilities comparable to those of individuals with no mental illness.310 In studies of people
with major mental disorders, the more severe a person’s current symptoms, the worse the person’s
performance on measures of competence-related abilities.311 In most studies, however, impaired competence
is linked more closely to cognitive deficits than to symptoms such as hallucinations or delusions.312 As
Carpenter and colleagues note, “These findings agree with the common clinical observation that the degree of
psychotic symptoms, except at the extreme, does not robustly predict patients’ functionality in daily life.”313
Finally, and perhaps most importantly, poor performance on measures of capacity to consent to research
can be remediated by educational interventions that reiterate information and instruct patients on information
that was initially poorly understood.314 This means that individuals with mental illnesses should not be
presumptively considered incompetent or excluded from research participation because of an initially poor
performance on a screening assessment.315 On the other hand, because individuals with severe mental illnesses
may experience fluctuations in coherence that potentially affect capacity, study participants may require
reassessment—“an ongoing dialogue”—throughout a research protocol.316
Early research on the competence of children suggested that elementary-school-age children were not
significantly less competent than adults at assessing proposed research.317 Abramovitch and her colleagues
found, however, that although children between the ages of 7 and 12 “were quite competent with respect to
knowing why the studies were being done,” even with probing they “had difficulty describing benefits and
risks” when compared to adults.318 Furthermore, children were much more likely to stop their participation in
research if they were told that the experimenter would not be upset if they stopped.319
The data on treatment competence reported in the preceding section are relevant here as well, but only
tangentially so, because experimental treatment is not analogous to ordinary treatment in a number of ways.
Of particular concern is the finding that many participants in experimental treatment studies often do not
understand that they are part of a research project;320 rather, they feel they are getting treatment to which they
have agreed. This “therapeutic misconception”321 has received much study in both the psychiatric and general
health domains.322 Interestingly, one commentator has asserted that the therapeutic misconception can affect
not only research subjects, but researchers as well.323
Second, risk assessment for consent to research differs from that for consent to treatment. For the latter,
the provision of actuarial tables concerning treatment success or their equivalent is at least theoretically
possible. In contrast, many of the risks in research are unknown, and all that researchers can do is to
extrapolate from analogous situations and offer speculations based on theory. For example, the first humans to
receive an experimental drug can be told the effects the drug has had in animal studies and the theories about
the drug’s action, but the risks in humans cannot be known until the people have taken the drug.
Third, the motivations for consenting to research could differ from those for consent to treatment. It is
conceivable that the desire to be altruistic or to receive compensation might dwarf other factors in a potential
subject’s decision whether to participate. Nonetheless, at least for minimal-risk research, there appears to be
little reason not to honor the preferences of many who are mentally ill or in their teenage years.

(c) Evaluation

To a large extent, an evaluation of competence to consent to research mirrors an evaluation of competence to

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consent to treatment. Yet the clinician should also evaluate the elements of informed consent that are specific
to research (e.g., the nature of research as opposed to treatment; freedom to withdraw or set limits, including
the fact that withdrawing will occasion no negative consequences; and, when relevant, the lack of benefit to
the participant). To aid in this endeavor, various assessment instruments have been developed, although not
all are of equal usefulness. Dunn and colleagues evaluated ten tools and found inconsistencies in the way
understanding, appreciation, and reasoning abilities (particularly the latter two) are operationalized.324 They
ultimately concluded that the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-
CR)325 was the best instrument currently available.
We concur. Like the MacCAT-T, which is used to assess capacities related to consenting to treatment, the
MacCAT-CR assesses multiple competence-related abilities (understanding, reasoning, appreciation, ability
to express a choice) and must be “constructed” according to the nature and details of the proposed research
project. That is, the information that the potential participant must understand or manipulate (to demonstrate
reasoning capacity) is customized to the specifics of the proposed research protocol. At the same time, the
same constructed instrument can be used with all potential participants in a given research project.
Administration time is approximately 15–20 minutes. High levels of interrater reliability have been reported
for the MacCAT-CR,326 and construct validity is supported by positive correlations with measures of
cognitive functioning and negative associations with indices of psychopathology.327
As noted above, research has also demonstrated that educational strategies are successful at improving the
comprehension of individuals who may seem at first glance to be incompetent. In particular, a number of
studies have concluded that repeated learning trials and corrected feedback were associated with
improvements in understanding, as were iterative feedback (i.e., rereading parts of the consent form that
convey information not understood on the first postconsent test) and the use of a video-recorded educational
intervention.328 Therefore, the examiner and/or researcher may have opportunities to enhance competence
through use of comparatively simple interventions similar to those described earlier in this chapter.
As in the consent-to-treatment context, documenting the informed consent process when recruiting
research participants can serve several important functions. At a minimum, it confirms that the investigator
has fulfilled the obligation to obtain informed consent. If an individual’s capacity to consent is subsequently
challenged, structured or semistructured measures facilitate the documentation of the individual’s responses to
queries related to his or her understanding, appreciation, and reasoning capacities, and thus provide a record
of at least some of the important bases for the researcher’s judgment to permit the individual to enroll in the
study. More so than unstructured clinical interviews, structured measures also shed light on the examiner’s
attitudes toward autonomy, which may be relevant in subsequent legal inquiry.329 Particularly with respect to
the appreciation aspect of capacity, the criteria can vary considerably; some examiners consider beliefs about
the proposed research irrational “merely” because they seem inaccurate, implausible, or overly optimistic,330
and others require evidence of more bizarre or “patently false” beliefs.331

11.05. TESTAMENTARY CAPACITY

CASE STUDY 11.4

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Ms. Kohler died, leaving only one dollar of a sizable estate to her only child, Ms. Rogers, and the rest to a church. Testimony at a court
hearing challenging her will reveals that when Ms. Kohler was asked why she wanted to distribute her estate in this way, she stated that she
had not gotten along well with Ms. Rogers; while living with the Rogers family, she had been required to do things that she did not want to
do; her daughter’s husband had made a derogatory remark concerning Germans (Ms. Kohler was of German descent); the Rogers family
lacked religious spirit; and Ms. Rogers had tried to kill her mother by putting glass in her pudding. Ms. Kohler also stated that she herself
had failed to contribute enough in support of the church. Independent evidence discloses that the daughter had prepared the pudding that
had the glass in it, but that the glass was there accidentally. Furthermore, many people had assured Ms. Kohler that this was the case, but
she persisted in believing that her daughter wanted to harm her.

Questions: As a clinician, how would you evaluate Ms. Kohler’s testamentary capacity? Do you think your evaluation would be of any
assistance to the court?

Courts and attorneys sometimes ask mental health clinicians to evaluate whether an individual is (or, more
commonly, was) competent at the time of executing a will. If the “testator” (i.e., the person preparing the will)
is still living, the examiner interviews him or her and others contemporaneous with execution of the will; if the
testator is deceased, the examiner engages in a retrospective inquiry aimed at shedding light on the testator’s
capacity when the will was prepared.332 In either circumstance, the evaluation does not focus on the
individual’s general competence, but on the individual’s specific legal capability to prepare a valid will. If the
testator is judged to have lacked competence (referred to in this context as “testamentary capacity”) when the
will was written, the will is not “admitted to probate,” and its provisions have no effect. In such cases,
distribution of the estate will proceed under the terms of any valid will that exists or, in the absence of a valid
will, under the rules of “intestate succession,” which favor the immediate family.

(a) Legal Requirements

The requirement that testators be competent is most often expressed by the simple admonition that they be
“of sound mind.”333 The courts have interpreted this phrase to encompass the following four attributes:

1. Testators must know at the time of making their wills that they are making their wills.
2. They must know the nature and extent of their property.
3. They must know the “natural objects of [their] bounty.”
4. They must know the manner in which the wills they are making distribute their property.334

In determining whether testamentary capacity exists under these standards, the law is not interested in
“perfect” capacity or knowledge.335As with many competencies, only a low threshold of functioning is
required: “Capacity” in this context means testators’ ability to understand in a general way the nature and
extent of their property, their relation to those who may naturally claim to benefit from the property they
leave, and the practical effect of their wills.336 For example, testators need not know every detail concerning
their property. Similarly, mere forgetfulness is not equivalent to a lack of capacity: If a testator has forgotten
about a cousin who lives 3,000 miles away, and as a result has not included that cousin as a beneficiary, the
will is not automatically invalidated.
Most relevant for present purposes, the simple existence of mental illness is not equivalent to testamentary
incapacity. A person with mental illness may make a valid will, as may an individual addicted to narcotics or
alcohol.337 The focus is on the individual’s functional abilities when making the will with respect to each of

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the four attributes noted above. Thus, for instance, if the will of a person with florid mental illness has been
executed during a “lucid interval,” it will be deemed valid.338 Similarly, a testator’s prejudice against or dislike
for a particular individual, no matter how ill founded, is not the same as a lack of capacity; nor is a simple
belief on the part of a testator that another party has been attempting to injure him or her. The issue with
someone like Ms. Kohler (in Case Study 11.4) is not the existence of such beliefs, but their cause; the court,
and clinicians called on to assist it, must distinguish between beliefs that might be mistaken and actual
delusions. The latter will not be found to exist unless the testator’s belief “has no basis in reason, cannot be
dispelled by reason and can be accounted for only as the product of mental disorder.”339
As may be surmised from the foregoing, the competence requirement may create a tension in particular
cases between the well-established principle in Western society that persons should have control over their
property and the natural inclination to question atypical distribution patterns. Suppose a man leaves his
property to an animal shelter rather than to his family. The competence paradigm allows the family members
to question this bequest and may lead to invalidation of the will. A valid question, raised decades ago by Szasz
and subsequently by others,340 is why such challenges should be allowed; even if the testator is psychotic,
dispositions through the will express a desire and intent that arguably should be honored to the same extent
that a bequest based on “reasonable” mistake should be. But, as in other areas of the law [see § 8.02(c)(1)], the
medical model has provided the dividing line. Correcting for all “mistakes” would violate libertarian notions;
allowing mistakes caused by mental illnesses would insult those same notions. The difficulty, of course, is
separating rational from irrational bequests.341 Again, as always, the clinician’s task is to gather information
that informs the judgment of legal decisionmakers.
A related but separate issue that might call for clinical expertise is whether the testator was subject to
undue influence at the time of executing the will. In such situations, the issue is not so much whether the
testator has testamentary capacity, but whether his or her distribution of property was too heavily influenced
by a third party. Case law criteria vary from state to state, but in general, a court considering an allegation of
undue influence looks for evidence of “a susceptible testator, another’s opportunity to exert it, the fact of
improper influence exerted or attempted, and the result showing the effect of such influence.”342 More
specifically:

In evaluating whether suspicious circumstances are present, all relevant factors may be considered, including: (1) the extent to which the
donor was in a weakened condition, . . . and therefore susceptible to undue influence; (2) the extent to which the alleged wrongdoer
participated in the preparation or procurement of the will or will substitute; (3) whether the donor received independent advice from an
attorney or from other competent and disinterested advisors in preparing the will or will substitute; (4) whether the will or will substitute was
prepared in secrecy or in haste; (5) whether the donor’s attitude toward others had changed by reason of his or her relationship with the
wrongdoer; (6) whether there is a decided discrepancy between a new and previous wills or will substitutes of the donor; (7) whether there
was a continuity of purpose running through former wills or will substitutes indicating a settled intent in the disposition of his or her
property; and (8) whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair, for
example, whether the disposition abruptly and without apparent reason disinherited a faithful and deserving family member.343

Of course, it is the first issue—susceptibility to influence—that is most likely to call for clinical insight.

(b) Clinical Evaluation of Testamentary Capacity

One obvious difference between the evaluation of testamentary capacity and the assessment of other capacities

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is that, in most instances, the subject of the evaluation has died. This fact ensures that in the vast majority of
cases, “the best evidence of capacity—the testator himself”344—will be unavailable to the clinician.
Sometimes, however, examiners are asked to conduct evaluations while the testator is available. A few
states, for example, have antemortem probate statutes that allow a will to be probated prior to the testator’s
death.345 In other jurisdictions, attorneys may advise their clients to seek an evaluation of capacity at the time
of execution of the will, in an attempt to reduce the possibility of a contest later.
The areas of inquiry will be similar, whether or not a testator is alive. The primary difference will be in the
source of information; obviously, the testator will be the primary source if alive. In such cases, we recommend
video-recording the evaluation, which may be persuasive in demonstrating the reasons for clinical conclusions
about the subject’s mental state and functioning.346 If the testator is not alive, the information will have to be
obtained from friends, acquaintances, family, available medical records, and any other source that might shed
light on the testator at the time of making the will.
As a general rule, the clinician should remember that the question of testamentary capacity is best
conceptualized as a functional one, focusing on the testator at the time the will was made. Thus the clinician
may want to structure the evaluation and report to conform with the legal elements of the capacity test.
Several authors offer guidance for such endeavors.347 Here we provide our own suggestions for an evaluation.

(1) Testator Knowledge of Making a Will

When the testator is available for interview, the examiner should ask about his or her conception of a will and
what it does (e.g., “How would you explain a will to someone who didn’t know?”), about previous wills if they
exist, and about why the testator is preparing a will now. Asking “Why now?” may help to reveal delusional
motivations (e.g., “I’m writing a will because the President has said my death is near”), and also will show
whether the testator is in fact aware that he or she is preparing a will. In some cases, asking “Why now?” may
also yield some information about whether the individual is writing a will volitionally, rather than as the result
of coercion from others that might constitute undue influence.
If the testator has died, the existence of a will may suffice to demonstrate that he or she understood the
purpose of a will, as long as the will purports to distribute the testator’s property. Spaulding suggests that the
question of whether a testator knew he or she was making a will should be left to the factfinder;348 in the case
of a retrospective inquiry, we concur that an expert generally will have little to offer on this feature of
testamentary capacity.

(2) Testator Knowledge of Nature and Extent of Property

If the testator is alive, questions designed to elicit information about his or her property holdings are
appropriate. These might include questions regarding occupation, salary, living accommodations, personal
possessions, intangibles (e.g., bank accounts or notes), and any other possessions. Questioning should be
open-ended and designed to let testators describe their property in their own words—for example, “Please
describe your financial assets for me. . . . Tell me about their value,” “What other property do you own?”, “Do
you have any bank accounts? How much do they contain?”349 Again, the purpose is primarily to determine

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whether testators’ assessments of their possessions are realistic or are instead wholly at odds with the facts; if
the latter, what is the cause of the lack of “fit,” and is it suggestive of incapacity? In this regard, clinicians need
to seek corroborative information about the estates in question from available archival sources, family
members, and others.350
If the testator is dead and little is known about the exact circumstances of the will’s preparation, the legal
factfinder will often determine the testator’s knowledge of the nature and extent of the property from objective
evidence found in the will. For example, does the disposition made by the testator match the estate, or does
the will attempt to bequeath items that the testator does not possess? For example, if a will states that “I give
the one million dollars in my State Bank account to the Society for the Preservation of Prince Philip’s Ponies,”
and neither the bank account, the one million dollars, nor the society exists, the factfinder can readily judge
the testator’s capacity. In cases this blatant, clinical opinion about whether testators knew the nature and
extent of their property may add little to what can be inferred from the mismatch between property
bequeathed and actual possessions.

(3) Testator Knowledge of Natural Objects of Bounty

Forensic examiners will probably be most useful in this area of inquiry because they can help ascertain
testators’ actual values and preferences, thus inhibiting application of an objective “reasonable person” test that
might not reflect a testator’s intent.351 A testator who is still living can be asked to identify family members,
friends, and others who might have played a major role in his or her life. An examiner can then ask about the
testator’s view of his or her relations with them, to assist the factfinder in answering the following sorts of
questions: Is a particular relationship a close and loving one? If not, why not? Does the testator believe that
another party is “out to get” him or her? If so, what is the basis of the belief? The clinician should remember
that prejudice or hostility held by a testator against another person does not automatically render the testator
incapable to execute a will.
This part of the inquiry obviously will be much more difficult when a testator is dead. In many cases,
disputes over a will’s validity arise because the will has excluded one or more individuals who believe
themselves the “natural objects” of the testator’s “bounty.” In such cases, the clinician will have to attempt to
reconstruct the testator’s relationships with these significant others by relying on extrinsic sources—including,
quite probably, the individuals embroiled in contesting the wills. Therefore, the clinician must take particular
care to corroborate the information relied on, and must keep in mind that reports may be suspect because of
their sources. Archival records that document frequency of contact or communication with the testator or
provide evidence of the quality of the relationship (e.g., close and caring vs. remote or distant) may offer
further clues as to the testator’s awareness of and intentions toward family members.

(4) Testator Knowledge of the Manner in Which Property Is Disposed

If the testator is alive, the clinician should ask questions about the general consequences of the property
disposition made. For example, if a woman intends to leave her only daughter a few dollars a month out of a
considerably greater fortune, does the testator know the likely impact on the daughter’s life? Does she believe

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that a greater sum is unnecessary because the daughter has independent means of her own? If so, is that true,
or is the daughter in fact living in poverty? If the latter situation obtains, is the testator’s belief a product of
delusion, personal pique, or simply a mistake? The clinician should keep in mind, of course, that the testator
may simply value the designated recipient(s) of the balance of her wealth more highly than she does her
daughter.
If the testator is dead, inquiry into his or her understanding of the dispositions made by the will is
problematic. In a case such as the one just described, a question about capacity would probably be raised,
because the disposition is “unnatural.” As when the testator is alive, the focus of clinical inquiry would then be
on any material that would reveal why the testator made the disposition. The difficulty lies, of course, in
finding and assessing the material. As before, the role of the clinician should not be to evaluate the wisdom of
the choices made by the testator, but to discover the factors leading to those choices.

(c) Conclusion

Courts appear to be hearing increasing numbers of will contests based on allegations of testamentary
incapacity or undue influence. Factors contributing to the trend include increasing size of intergenerational
wealth transfers, blended family structures that can lead to more conflict, and larger numbers of elderly
persons who suffer from cognitive impairments.352 Clinical opinion about testamentary capacity and undue
influence is susceptible to a number of mistakes and errors that can arise confusing “undue” with “reasonable”
forms of influence, basing judgments on diagnoses rather than relevant capacity, and misapplying concepts
such as “delusions” and “cognitive impairment.”353 In some cases, clinical testimony may or should be
superfluous, because the inquiry into testamentary capacity is often a common-sense determination to which
mental health clinicians can add little or nothing beyond the bare facts.
In some cases, however, clinicians may be able to provide useful information to the probate court. Through
physical and neurological examinations, intelligence tests, interviews of the testator (if still alive), and careful
information collection if the testator is dead, a clinician may be able to cast light on the extent of the testator’s
dementia, psychosis, or intellectual disability and the thought processes these conditions engendered. At the
same time, opinion testimony should still avoid the ultimate question as to whether a person lacks or lacked
testamentary capacity. We stress this admonition here because of the pressures that can come to bear in
probate contests where considerable money is involved, and where—to put it bluntly—greed can become an
overriding motivation for those contesting the will.

BIBLIOGRAPHY

JESSICA BERG ET AL., INFORMED CONSENT: A STUDY OF DECISIONMAKING IN PSYCHIATRY (2001).

Alexander Brooks, The Right to Refuse Medication: Law and Policy, 39 RUTGERS LAW REVIEW 339 (1987).
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ASSESSMENTS) (2010).
Laura B. Dunn, Capacity to Consent to Research in Schizophrenia: The Expanding Evidence Base, 24 BEHAVIORAL SCIENCES & THE LAW 431
(2006). (Other articles in this issue of BEHAVIORAL SCIENCES & THE LAW are also useful.)
THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (2d ed. 2003).
THOMAS GRISSO & PAUL S. APPELBAUM, ASSESSING COMPETENCE TO CONSENT TO TREATMENT (1998).

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Harper v. Washington, 494 U.S. 210 (1990).
Dilip V. Jeste et al., Magnitude of Impairment in Decisional Capacity in People with Schizophrenia Compared to Normal Subjects: An Overview,
32 SCHIZOPHRENIA BULLETIN 121 (2006).
JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT (2002 ed.).
ERIC G. MART & ADAM E. ALBAN, THE PRACTICAL ASSESSMENT OF TESTAMENTARY CAPACITY AND UNDUE INFLUENCE IN THE ELDERLY
(2010).
NATIONAL BIOETHICS ADVISORY COMMISSION, RESEARCH INVOLVING PERSONS WITH MENTAL DISORDERS THAT MAY AFFECT
DECISIONMAKING CAPACITY (1998).
Edward D. Sturman, The Capacity to Consent to Treatment and Research: A Review of Standardized Assessment Tools, 25 CLINICAL
PSYCHOLOGY REVIEW 954 (2005).
Jeffrey Swanson et al., Psychiatric Advance Directives among Public Mental Health Consumers in Five U.S. Cities: Prevalence, Demand, and
Correlates, 34 JOURNAL OF THE AMERICAN ACADEMY OF PSYCHIATRY & LAW 43 (2006).
Phillip B. Tor & Bruce D. Sales, A Social Science Perspective on the Law of Guardianship: Directions for Improving the Process and Practice, 18
LAW & PSYCHOLOGY REVIEW 1 (1994).
50 C.F.R. §§ 50.25-50.56 (2016) (regulations governing consent to research), available at
https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=50.25.

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CHAPTER 12

Compensating Mental Injury

Workers’ Compensation and Torts

12.01. INTRODUCTION

Society has long been concerned with compensating those injured by others, but compensation for
psychological damages, most often called “mental” or “emotional” injury in legal parlance, is a comparatively
recent and still controversial idea. This chapter describes the legal and forensic rules that govern recovery for
this type of injury.
The criminal justice system has always helped “compensate” victims of others’ conduct by exacting
vengeance. Yet vengeance is a notion that relates as much to societal expectations as to a victim’s demands.
Individual monetary compensation is most directly achieved through the civil justice system, primarily via
“tort” law—the law of civil wrongs. Because a person’s injurious conduct harms both society and the victim,
both systems may respond to the same act. An assault, for example, may be punished by the state in criminal
court and may also lead the victim to seek compensation for damages via a tort action. In the first instance,
the state will be the “complainant”; in the second, the state merely provides the forum for resolution of a
dispute between private parties [see § 2.04]. Given the differing objectives of the two systems, the standards
of proof differ, and seemingly inconsistent results can sometimes occur. In 1995, for instance, O.J. Simpson
was acquitted on two counts of homicide in a criminal trial, presumably because the jury had a reasonable
doubt as to whether he committed the killings. But he was found liable for those same killings in a civil trial
brought by the family of one of the victims, because the jury there concluded that he was more likely than not
to have been the perpetrator. As a result, Simpson avoided criminal punishment, but was ordered to pay
monetary damages to the family.
The division between criminal and civil law was not always so distinct. In medieval England, the idea of
compensating injured parties developed as an alternative to the warfare that traditionally occurred when the
honor of one clan was affronted by another.1 The Anglo-Saxons ranked individuals in terms of their relative
worth, assigning a tariff, known as the wer, which established the official monetary worth of each person.
When a clan member caused injury to a member of another clan, fighting was avoided by offering the wer,
which was distributed in prescribed allowances to the paternal and maternal kin of the injured party. Over
time, however, the King demanded penalties when the transgression disturbed the King’s peace; this payment
became known as the wite. Eventually, the functions of appeasing the family and atoning for the breach of the
King’s peace were separated: The latter emerged as the criminal law, and the former became the law of
“torts.”2
As tort law developed, it came to incorporate a broad universe of harms. Today, the American Law

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Institute’s Restatement (Third) of the Law of Torts states that any conduct that causes harm and that is either
“negligent, reckless, or intentional in its harm-causing quality” can be tortious.3 As this definition suggests,
however, the tort system is still anchored in the idea of “fault,” with liability depending upon whether the
harming party is somehow to blame for the harm. Furthermore, as described in more detail below, if the
“victim” can be shown to have contributed to the harm, then liability may be mitigated or eliminated.4
Because a “fault-based” system sometimes denies relief to parties who might reasonably deserve or require
redress, “no-fault” systems of compensation have developed or been proposed over the years.5 The most
extensive no-fault compensation system today is workers’ compensation, designed to provide compensation to
injured workers for the loss or impairment of their wage-earning power.6 The “workers’ comp” system came
into being in the early 20th century, largely because the various defenses available to employers in tort suits
left employees injured on the job grossly undercompensated. This system has been described as “a form of
strict liability requiring employers, regardless of fault, to compensate employees for injuries arising out of and
in the course of employment.”7 The basic test of workers’ compensation liability is simply whether there is a
connection between work activities and the injury; “liability is imposed as an incident of the employment
relationship, a cost to be borne by the business enterprise.”8
Both the tort system and the workers’ compensation system were initially reluctant to accept claims of
mental injury.9 However, this reluctance has grudgingly given way to expanded coverage, at least in part
because of an increased willingness of courts to accept diagnoses and prognosis of emotional and behavioral
impairments as legitimate areas of scientific knowledge. Thus, under either fault-based or no-fault systems of
compensation, a clinician may be asked to assess the impact of conduct or events on an individual’s mental
status, functioning, and prognosis for recovery. Whereas compensation for emotional or mental injury has
expanded beyond its initial boundaries in some jurisdictions, in others it has contracted or been limited. A
primary example is the establishment of statutory caps on noneconomic damages, including pain and
suffering, in malpractice cases. As of 2017, the majority of states had imposed such caps; these caps have
reduced payouts to plaintiffs significantly.10
This chapter first discusses the workers’ compensation system. It then examines compensability for mental
injury under tort law. In the latter area, we focus particularly on the tort of infliction of emotional distress,
because it most clearly raises the issue of “mental suffering.” We also note differences between the workers’
compensation and tort systems throughout the chapter, which we conclude with a discussion of clinical
evaluation techniques.
Other legal regimes also provide avenues of compensation for mental injury. Covered elsewhere in this
book, for instance, are discrimination claims based on the Americans with Disabilities Act and the Fair
Housing Act [see Chapter 13]. Sexual harassment complaints under Title VII of the Civil Rights Act and
other work-related litigation may also involve claims of psychological injury.11 Some of the general points
made here, particularly with respect to causation and proof of injury, are relevant in these regimes as well. We
note, finally, the lack of both doctrinal consistency and consistency across jurisdictions in how emotional
distress is treated; one commentator has described it as a “patchwork of liability rules.”12 The reader should
keep this in mind in thinking about cases that involve alleged mental injury.

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CASE STUDY 12.1

Ms. Friend, a long-time employee of Big Sound, a manufacturer of stereo equipment, had a spotless employment history. She rarely missed
work either for vacations or because of illness, and she was well liked by other employees. Her job consisted principally of driving a forklift
on the warehouse floor. One morning, as she was moving material, she heard a loud noise. She looked to her left and saw hundreds of
cartons falling from shelving directly onto a coworker who was driving another lift. The other employee’s neck was broken in the accident,
and he died instantly.
Ms. Friend brought a workers’ compensation claim against her company for the emotional injury sustained as a result of witnessing the
fatal accident. She tells you that since the accident, she has slept poorly and has lost her appetite. She also has had difficulty at work,
because when she gets on her forklift, she begins shaking so badly she has difficulty driving. She complains of stomach and neck pains as
well. You further discover that one month before the accident, Ms. Friend’s young son died at home in an accident. After returning from a
two-week paid leave to attend to funeral arrangements, she seemed depressed, according to coworkers. She has a small daughter at home,
who is watched by a nanny (Ms. Friend’s husband works full-time as well). She has told her coworkers that she feels guilty about leaving her
son at home prior to his death and wants to spend more time with her daughter.

Questions: Assume that you are Ms. Friend’s lawyer. What can you say about her ability to recover monetarily from the workers’
compensation system? Assume instead that her employer is not governed by a workers’ compensation plan. Could she recover damages in a
tort suit? In either case, what information would you want from a mental health professional in trying to determine the type and extent of
her injury and adequate compensation?
Now assume that you are a mental health professional. How would you proceed with your evaluation?

12.02. WORKERS’ COMPENSATION LAW: AN OVERVIEW13

Before the development of workers’ compensation law, an employee injured at work could only seek
compensation through tort litigation. In such suits, the employer could raise several defenses, including
“contributory negligence” (asserting that the employee’s negligence contributed to the injury), “assumption of
the risk” (asserting that the employee assumed the risk of injury by taking the job), and the “fellow servant”
rule (asserting that the worker’s injuries resulted from the negligence of another worker).14 These defenses
effectively barred many workers (or families bringing suit on their behalf) from recovering any compensation
for workplace injuries or deaths, medical and other costs associated with the injury, and lost wages from the
subsequent loss of employment. Even when no defense applied, proving fault was often a long, involved
process that “frequently worked an injustice on the worker.”15 An Illinois study of the situation at the
beginning of the 20th century found that of 614 work-related death cases, 214 families had received no
compensation and 111 cases were in pending litigation. In New York City in 1908, workers received no
compensation for 43.2% of work-related accidents in which the outcome was known.16 One commentator
characterized this state of affairs as “a complete failure [which], in most serious cases, left the workers’ family
[members] destitute.”17
The workers’ compensation system was designed to remedy these problems. Participation in workers’
compensation, which is compulsory in most states,18 requires both employers and employees to give up rights
otherwise available in tort law. Employers must guarantee compensation to employees for work-related
injuries regardless of fault and, except in a few limited circumstances, agree to waive the various defenses
available in tort.19 Employees, in exchange, forfeit the potentially unlimited compensation available in a tort
case (assuming they could provide adequate proof of tortious conduct and damages) but obtain more certain
recovery, based on a fixed schedule derived from the degree and duration of the disability and on the

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employee’s preinjury salary. Generally paid over a fixed period on a weekly basis, this compensation is not
designed to “make the person whole,” as is the case with tort damages, but to replace some meaningful degree
(typically two-thirds) of lost earning capacity.20 In addition, the disabled worker receives payment for medical
care, surgery, nursing, and burial services.21 Today, all states and the federal government have workers’
compensation laws,22 and the vast majority of all civilian employees are covered.23

(a) The Claims Process

One of the primary goals of workers’ compensation is the expeditious adjustment of claims for
compensation.24 Therefore, nearly all jurisdictions provide for summary and generally informal proceedings
before an administrative agency, as well as for appeal to the courts.
To initiate the process, the worker must give notice of injury to the employer and, in some jurisdictions, to
the workers’ compensation board. The notice must provide general information regarding the circumstances
of the accident and the nature and extent of the injury.25 Once notice is given, the employee may be required
to submit to a medical or physical examination to determine whether there is an injury, and if so, its extent.26
In such situations, the patient–physician privilege [see § 4.04(c)] is considered inapplicable.27
The statutes generally provide an opportunity for the parties to reach a voluntary settlement. If adjudication
of the claim becomes necessary, an administrative proceeding takes place, and the matter is tried before a
hearing officer (who may be called a “commissioner”) rather than a judge in the civil court system. Technical
rules of pleading are not followed (although the claim must set forth facts adequate to establish the case for
compensation28), and the rules of evidence may not apply either, in which case hearsay will be admissible.29
The adjudication is informal in character; in some jurisdictions, the parties may proceed without counsel.
The claimant has the burden of making out a case for recovery. The standard of proof, which courts have
described in various ways, is equivalent to the “preponderance of the evidence” test. This standard requires the
claimant to show it is “more probable than not” that the employment caused the injury.30 Expert testimony is
allowed, though in at least some jurisdictions the expert is (and, in our opinion, should be) barred from
testifying on the ultimate issue as to the percentage of loss of earning power suffered by the claimant.31 The
hearing officer decides both law and fact questions and is often required to produce written findings of fact.
Thus the hearing officer determines whether an injury has occurred, its extent, and its compensability. As
detailed in § 12.02(d), compensation can be for permanent total disability (paid out for the worker’s lifetime
or for some large number of weeks, such as 500); permanent partial disability (often paid out as a percentage
of total impairment); or temporary total or temporary partial disability (paid weekly for the duration of the
disability).32
The findings, as well as any award, are conclusive as to the parties’ interests in the case, unless reversed on
appeal. Because workers’ compensation was designed to replace tort law in adjudicating work-related injuries,
as a general rule the employee cannot pursue tort litigation in the hope of supplementing the compensation
award. However, the administrative outcome may be appealed to a court if a party questions how the law was
applied to the particular case.

(b) Substantive Criteria for Compensation

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Although workers’ compensation laws vary from state to state, they have common features. Typically the
worker—or in the case of death, the beneficiary33—must demonstrate (1) an injury or disability, (2) arising
out of and in the course of employment, which is (3) “accidental,” as that term has come to be used in workers’
compensation laws. We discuss these elements of a claim in more detail before describing how workers’
compensation law treats mental injury.

(1) Injury or Disability

The worker first must show that he or she has suffered an injury or disability that affects earning power.34
Because of the requirement that injury and earning power be related, some injuries that might be compensable
in tort litigation are noncompensable under workers’ compensation. Examples include facial disfigurement,
loss of sexual potency, and pain and suffering.35 Despite this substantive limitation, many types of injuries and
disabilities are potentially compensable—including, as discussed later, various types of mental injury.36

(2) Origin in the Course of Employment

Assuming a showing of a compensable injury, the employee must also demonstrate that it arose “out of and in
the course of employment.” This criterion has two elements. The first (“out of” employment) requires
establishing a causal relationship between the injury and the conditions under which the employee was
required to perform the work.37 In the past, courts required a showing that as a result of employment, the
worker faced a risk of injury distinct from the risk faced by the general public.38 Thus a worker who
contracted lung cancer because of coworkers’ smoking might not be compensated (many people might be
exposed to second-hand smoke), whereas a construction worker injured by a fall at a building site would be
(because construction workers are uniquely exposed to construction site mishaps). In many jurisdictions,
however, laws permit workers’ compensation for injuries that result from any exposure associated with
employment, even if it is an exposure faced by the public as well.39 Adopting an even broader interpretation,
some courts have endorsed the “positional risk” test. Under this test, an injury is compensable if it occurred
simply because the conditions or obligations of employment placed the claimant in the situation (or
“position”) in which the injury occurred.40 These changes have made more types of injuries compensable.41
However, the “positional risk” test is controversial because it undercuts the purpose of workers’ compensation:
to allocate recovery for injuries arising out of employment.42
The second causal requirement—that the injury arise “in the course of employment”—focuses on the time,
place, and circumstances of the injury.43 Therefore, key questions include whether the injury occurred within
the period of employment, at the place of employment, and at a location where the employee might
reasonably be expected to be while fulfilling duties associated with employment.
Preexisting conditions create troublesome issues in determining causation in workers’ compensation cases
[see, e.g., the Lane Cates report, § 19.08(a)]. As a general rule, employers are said to take employees as they
find them; a history of either physical or mental problems or a preexisting sensitivity to such problems will
not, in itself, result in a denial of compensation.44 Thus, if a workplace injury aggravates an existing disease or
infirmity or accelerates its course, compensation is due.45 “Aggravation” of a disease might include situations

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in which a breathing problem worsened because of work activities.46 “Acceleration” of a disease might include
a situation in which an employee’s already weakened heart failed due to work-related excitement or exertion.47
However, if injury was not caused, aggravated, or accelerated by something arising out of and in the course of
employment, but instead arose or worsened independently of work, the claimant will not receive
compensation.

(3) Injury Arising “by Accident”

The cause of the injury must usually be “accidental”—that is, an unanticipated event that occurs at the
worksite. However, events that are not accidents in the lay sense may be compensable. For example, if a
worker who is routinely expected to lift heavy objects in the course of employment develops a hernia, the
result of the job performance is unexpected (or “accidental”), and therefore the injury is compensable.48 In
short, in most instances, either an event that accidentally causes injury or an accidental result of normal job
performance will satisfy this test.
Although “usual exertion” with an unexpected result generally suffices for compensability, courts have been
reluctant to apply this principle when heart disease is involved. Rather, some (but not all) jurisdictions have
required “unusual exertion” before awarding compensation in such cases.49 This requirement flows from a
concern alluded to in the discussion of causation above—the difficulty in proving that deaths resulting from
heart disease actually arise out of employment.50 We mention this aspect of the law here because it is similar
to limits courts have placed on recovery for mental injuries, again because of concern over difficulties in
proving etiology and causation.

(c) Mental Injury

The cost of poor health and lost work productivity is immense. A 2011 study estimated that “health-related
work losses are estimated to cost US employers more than $260 billion each year, and may cost some
companies more than direct medical expenditures.”51 The costs from stress-related health claims is estimated
as being close to $150 billion per year.52
Yet in early workers’ compensation cases, employees had much more difficulty obtaining compensation for
mental injury than for physical injury. Some of this difference was due to technical legal findings. For
instance, courts often upheld findings that the mental disorder could not have been caused by an “accident,” or
that the mental disorder was not an “injury” within the statutory meaning. But at bottom, the hostility to
compensation for mental injury reflected inherent distrust of such claims, including a fear of malingering,53
and concern about whether one could objectively link employment to mental problems whose etiology and
course was uncertain or unknown.54 In more recent times, compensation for mental injury has become much
more common,55 and workers’ compensation cases now involve mental disorders of “almost every conceivable
kind of neurotic, psychotic, psychosomatic, depressive, or hysterical symptom, functional overlay, or
personality disorder.”56
Nonetheless, the success of a modern mental injury claim is uncertain, depending on its character and the
state in which the claim is brought. Most commentators divide such claims into three categories: physical

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trauma causing mental injury, mental stimulus causing physical injury, and mental stimulus causing mental
injury.57 Although the first two categories are usually compensable, the third category continues to be viewed
skeptically in many jurisdictions.

(1) Physical Trauma Causing Mental Injury

When a worker suffers a physical stimulus or trauma that causes either a mental injury or a physical injury that
in turn results in a mental disorder, the mental injury is compensable.58 In such cases, legal decisionmakers
have little difficulty with the causation issue (i.e., the linking of employment with the injury); the usual
reasoning is that “the existence of an objective, traumatic, work-connected physical impact or injury provides
an intuitive guarantee that the mental disorder is genuine and that the employment genuinely caused it.”59
Although this type of analysis may overstate the case in clinical terms (e.g., by ignoring the multiple causative
factors that may underlie the now-discernible mental disorder), the assumption that physical impact makes
the claim of mental injury more credible is not confined to workers’ compensation. As will be seen, the same
assumption governs the award of compensation in tort suits for mental injuries.
Myriad physical situations have given rise to compensable mental injury. The following provide some idea
of the variety: emotional trauma caused by rape at gunpoint; mental injury resulting from a pulled muscle
sustained while swinging a sledgehammer; a posttraumatic disorder resulting from an employee’s fall from a
scaffold; an anxiety disorder that developed without any discernible physical cause, but that arose after several
work-related accidents; a mental disorder resulting nine years after a work-related amputation of an arm;
trauma that developed from the loss of an employee’s eye, suffered while removing the cap of a fire
extinguisher; and a “fear complex” that prevented an employee from working after suffering severe finger
fractures from operation of a power press.60

(2) Mental Stimulus Causing Physical Injury

Physical injury caused by a mental stimulus is also compensable,61 whether the mental stimulus is sudden
(e.g., extreme fright resulting in physical injury) or more protracted. For example, a heart condition that
resulted from a long period of emotional stress arising out of work would be compensable, as would a heart
condition that resulted from a sudden shock. Courts have also upheld awards for a claims adjuster who
suffered angina pectoris due to exhaustion, a negotiator who after 65 days of work-related tension suffered a
stroke and paralysis, an insurance administrator who had a cerebral thrombosis as a result of job pressures, an
employee who suffered a heart attack after becoming emotionally upset over office clerical errors, and an
employee who suffered a stroke while arguing over the amount of his paycheck.62 Perhaps some of the
symptoms experienced by Ms. Friend in Case Study 12.1 would fall into this category as well. But most of her
symptoms would probably fall into the third category of injury, discussed immediately below.

(3) Mental Stimulus Causing Mental Injury

The most controversial of the three categories is the last, in which a claimant seeks compensation for a mental

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injury caused by a mental stimulus. Courts initially resisted compensating these injuries because no “physical”
evidence—a definable event or observable bodily changes—supported their presence. As the sophistication
and acceptance of diagnostic techniques grew, that view changed.63 As a result, most American jurisdictions
deem such injuries compensable.64 However, many American (and Canadian) jurisdictions impose limitations
on recovery for so-called “mental–mental” injuries that they do not apply to injuries with a physical
component.65 For instance, some states limit compensation to a sudden stimulus (e.g., fright or shock)—a
limitation much like the “physical” limitation formerly imposed by courts uncertain of the genuineness of
injuries without a physical etiology.66 On occasion, legislatures have imposed such limitations even over a
court’s contrary finding. For example, after the Louisiana Supreme Court ruled that a claimant could recover
for mental injury suffered after a period of harassment by other employees,67 the Louisiana legislature
amended the workers’ compensation statute to permit recovery for mental injury only if it “was the result of a
sudden, unexpected, or extraordinary stress related to the employment and is demonstrated by clear and
convincing evidence.”68
While many jurisdictions allow compensation for mental injuries arising from “gradual” or incremental
stress, they typically require that the stimulus complained of “exceeds in intensity the emotional strain and
tension normally encountered by employees on a daily basis.”69 In other words, the stress or strain that
culminates in the mental injury cannot simply be the routine stress associated with the job. One court put the
matter succinctly when, in rejecting a claim resulting from “a tremendous amount of pressures and tensions,”
it observed that the concept of a compensable injury “still does not embrace every stress or strain of daily living
or every undesirable experience” presented by employment.70
A final barrier to compensability of mental injury claims, whether linked to physical or mental trauma, is
the issue of causation. For instance, California allows compensation for mental injury only if the employee
demonstrates that “actual events of employment were predominant as to all causes combined of the psychiatric
injury.” Furthermore, when the injury results from being a victim of a violent act or from witnessing one, the
event must be responsible for “at least 35 to 40 percent of the causation from all causes combined.”71
To some extent, these limitations reflect a continuing skepticism of mental injury claims. But they also
stem from concern regarding rising costs.72 This concern has persisted into the 21st century.73 In 2013,
workers’ compensation insurance premiums for state-funded and private carriers totaled $41.9 billion, with
premiums for private carriers jumping 5.4% from the prior year. Growth of medical costs associated with
workers’ compensation has been much steeper than inflation in health care as a whole.74 The increase was
attributed to a number of factors, including the wage replacement costs associated with filling the positions of
individuals injured on the job.75
Thus, for both evidentiary and fiscal reasons, among the many reforms proposed or adopted in workers’
compensation over the years,76 redefining the compensability of mental injury was a priority in a number of
states. And even in states with coverage, recovery can be difficult. As of 2015, a review found continuing
suspicion of “mental injury” claims, a lack of parity in recovery for mental versus physical claims (despite
federal legislation requiring parity in insurance coverage), and a failure to “rely on psychological science” in
adjudicating claims of mental injury.77

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 (4) Preexisting Mental Disorder

A difficult issue that can arise in all three of the categories discussed above is the extent to which the mental
injury preceded the work-related incident or stress. As noted earlier, the core question in determining
compensability is whether the employment “aggravated” or “accelerated” the course or severity of the
preexisting disorder. If this inquiry is answered affirmatively, the employee may receive compensation,
including for mental injury.78 Note, however, that the presence of a preexisting disorder will make proof of a
causal connection between the employment and the mental injury more difficult, given the somewhat
ephemeral quality of the concepts of acceleration and aggravation. In addition, a claimant with a history of
mental disorder may be viewed more skeptically by the legal decisionmaker. The implications of these points
for mental health professionals asked to evaluate mental injury are discussed later in this chapter [see §§
12.04, 12.05(f)].

(d) Compensation Awards in Workers’ Compensation Cases

As noted above, one reason the workers’ compensation system was established was to make compensation
more predictable. To this end, states maintain schedules that govern compensation. In North Carolina, for
example, the payment schedule provides that an employee who has a permanent impairment of some sort at
the end of the “healing period” should receive two-thirds of his or her average weekly wage times a particular
number of weeks (e.g., 75 weeks for loss of a thumb; 200 weeks for loss of a leg). If the loss is not total, the
employee usually receives proportionately less (e.g., an employee who only loses 50% of the use of a thumb
receives 50% of the relevant compensation). When the loss renders the individual unable to earn wages “as
great as before the injury,” the employee has the option of receiving “[two-thirds] of the wage difference for a
period not to exceed 300 weeks from the date of the injury.” Physicians determine the percentage of loss, with
disagreement between them resolved by the workers’ compensation commission.79 Under this regime, all
claimants with the same percentage of disability from the same injury should receive the same compensation.
As one can imagine, determining the level of compensation for mental injury can be a challenging
enterprise under this scheme. It is also a very different approach to compensation than the one adopted in tort
law, to which we now turn.

12.03. THE TORT OF EMOTIONAL DISTRESS

Like the workers’ compensation system, the tort system provides monetary compensation for certain types of
injuries. Yet tort law differs from workers’ compensation in several critical respects. First, in nearly all
jurisdictions, workers’ compensation depends on administrative decisionmaking at the factfinding level. In
contrast, tort law relies nearly exclusively on judicial proceedings (albeit proceedings that are increasingly
truncated by procedures for resolving disputes without litigation, adopted as a part of medical malpractice
reform).80 Second, compensability under workers’ compensation is a statutory creation (though judicial
interpretation is important), whereas tort law has largely developed via case law, although, as we discuss in §
12.03(a)(4) below, legislatures increasingly address cost through limits on damages, particularly in medical
malpractice cases.

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 Finally, the aims of tort compensation differ from those of workers’ compensation. Workers’ compensation
awards follow a prescribed schedule and redress impairment in earning capacity. As a result, only a few of the
claimant’s costs (medical care, nursing care, etc.) are compensated. In contrast, tort damages are set by a jury
(unless jury trial is waived); are subject to judicial review only for their reasonableness in light of the facts; and
seek to compensate all damages resulting from the tortious conduct, including difficult-to-quantify categories
such as “pain and suffering,” “loss of consortium,” and “mental anguish” (subject to legislatively imposed caps).
Therefore, the potential award to a plaintiff in a tort action is often much higher than would be available in a
workers’ compensation case—and much less predictable, for reasons discussed in the preceding section.

(a) Substantive Criteria

As noted at the beginning of this chapter, tort law is a legal mechanism to provide compensation for private
wrongs.81 Thus a tort is not the same thing as a crime (though a crime may also constitute tortious conduct)
and may not involve any evil intent or motive. A tort also differs from an action for breach of contract, which
is based on violation of an explicit understanding about the duties between parties. Conversely, behavior that
might seem immoral to most people is not necessarily tortious conduct if the actor’s conduct is “within the
rules.” Thus, for instance, failure to save a drowning child—though morally reprehensible—is a tort only if the
party has a recognized obligation to act, as would be true of a parent or lifeguard.
Parties may be liable in tort for many types of tortious acts. Examples include assault, battery, false
imprisonment, defamation, libel, slander, invasion of privacy, and malicious prosecution. Although the
definitional criteria differ for individual torts, certain core concepts define whether an actionable wrong has
been committed in each case: (1) The defendant must owe a “duty” to the plaintiff, which (2) the defendant
“breaches” or violates, (3) thereby “proximately” causing (4) damages (i.e., a type of injury that is recognized as
compensable).

(1) Duty

William Prosser, who more than any individual articulated and consolidated the principles that underlie
modern tort law, defined the first prong of a tort as “an obligation, to which the law will give recognition and
effect, to conform to a particular standard of conduct toward another.”82 Prosser acknowledged the vagueness
of this concept, concluding that “no better statement can be made, that the courts will find a duty where, in
general, reasonable men would recognize it and agree that it exists.”83 The Restatement (Third) of Torts84
defines “duty” in these terms:

(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm. (b) In exceptional cases,
when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide
that the defendant has no duty or that the ordinary duty of reasonable care requires modification.85

One can also understand duty by considering certain principles and obligations that govern relationships
between individuals. For example, an individual has a duty to refrain from going uninvited on the property of
another; if the individual nevertheless does so, he or she may have violated that duty and may be liable for
damages stemming from the tort of trespass. A physician has a duty to treat patients according to accepted

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professional standards; failure to perform this duty may result in a claim for damages based on the tort of
malpractice. An individual has a duty to avoid engaging in uninvited physical contact with another individual;
to strike the other person violates the duty and may make the actor liable for the torts of assault and battery.
Finally, to repeat a previous example, parents have a duty to prevent their children from dying if they can
reasonably do so. Duties may be created through legislation, through court decisions, or by a jury ruling in a
case for which neither legislative nor judicial guidelines exist.

(2) Breach of Duty

An individual may violate a duty either by act or by omission. To return to the examples above, a parent’s or a
lifeguard’s failure to attempt to save a child when the adult reasonably could have done so is an omission likely
to lead to tort liability. Another example of a breach of duty through omission, more familiar to mental health
professionals, is the failure to take steps to protect a third party endangered by the clinician’s patient—a duty
first articulated in Tarasoff v. Board of Regents86 [discussed in § 4.04(b)].
Violation of a duty, whether by act or omission, may be intentional, negligent, or in some cases neither.
The “intentional infliction of emotional distress” (discussed below) and assault and battery are examples of
intentional torts. In cases that allege intentional torts, a key issue is whether the actor intended the result of
the act, not merely the act itself.87
“Negligence,” in contrast, does not describe a state of mind; rather, it is a failure to “exercise reasonable care
under all the circumstances.”88 The Restatement (Third) explains, “Primary factors to consider in ascertaining
whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will
result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate
or reduce the risk of harm.”89 If the jury finds that the plaintiff’s injury resulted from the defendant’s failure to
act with reasonable care, the defendant will be found negligent.
Finally, in some cases liability will be imposed regardless of whether the defendant intended harm or acted
reasonably. The best examples of this “strict liability” concept come from product liability cases. For instance,
a pharmaceutical company may be held liable merely on proof that it manufactured defective drugs and that
the defect caused injuries. Imposition of strict liability represents a policy judgment that certain entities owe a
heightened duty to society, as well as a practical judgment that proof of actual intent or negligence in such
cases often would be difficult. Although strict liability is controversial, it continues to be the typical standard
in product liability cases.90

(3) Proximate Cause

Whether conduct is intentional, negligent, or governed by strict liability rules, it will not result in liability
unless it “proximately” causes the claimant’s injury. Every event or condition has several causes. But to be
relevant in tort, the cause must be “proximate.” The traditional method of determining whether one event is
the proximate cause of another is to ask whether one could “reasonably foresee” that the former would lead to
the latter. Legal cause is also characterized as “a substantial factor in bringing about the harm” to the
claimant,91 “the near issue, not the remote one,”92 and “the straw that broke the camel’s back.”93 In short, tort

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law, like workers’ compensation law, attempts to conceptualize causation as a series of events, with the most
recent event or events being the only legally relevant ones. At bottom, however, proximate cause is as much a
normative concept as it is descriptive. As one judge put it, “What we do mean by the word proximate is that
because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of
events beyond a certain point.”94
Consistent with these formulations, action by a third party, either before or after the tortious act, may
relieve the actor of liability. For example, if a driver strikes a child while speeding, but the child was shoved
into the driver’s path at the last minute by a third party, the driver may not be the proximate cause of the
child’s injury; at a minimum, the person who shoved the child into the driver’s path will share blame for the
injuries (i.e., he or she will also be said to have “proximately caused” the child’s injuries).

(4) Compensable Damages

Not every harm or injury proximately caused by violation of a duty is compensable. In the tort context,
“damages” or “injury” means “an invasion of a legally protected interest.”95 In other words, even though the
individual may feel harmed, law compensates for the harm only if it is sufficiently important or worthy of
protection to hold the person causing the harm liable. For example, as already noted and discussed further
below, some jurisdictions do not provide compensation for emotional distress: Harm may have occurred, but it
is not compensable because of a policy decision that broadening the scope of liability to include “bruised
feelings” would make the conduct of daily life intolerable.
The law recognizes three principal types of damages. “Compensatory damages” are designed to place
claimants in a pecuniary position substantially equivalent to their pre-tort status. They provide compensation
for lost wages, medical expenses (including future medical expenses), and other pecuniary losses. They can also
include compensation for pain and suffering resulting from the tortious act.96 A second, rarer type of damages
award is known as “nominal damages.” These modest awards indicate that the defendant has committed a
tort, but caused only minimal harm to the claimant. Finally, the claimant may sometimes receive “punitive
damages,” which are awarded to punish the tortfeasor for conduct that is outrageous or recklessly indifferent
to the interests of the claimant.97 The award of punitive damages turns on the actor’s state of mind rather
than the nature of the underlying tort, and thus is most common in connection with intentional torts such as
assault and battery, false imprisonment, and the intentional infliction of emotional distress.98
States have resorted to a number of mechanisms designed to control rising malpractice costs. Statutory caps
on damages for pain and suffering have been especially popular; for example, California limits noneconomic
damages (including pain and suffering) in malpractice cases to $250,000. Courts often but not always have
upheld these caps against myriad legal challenges, though commentators continue to criticize them.99

(b) Mental Injury

It has been claimed that “in every case of personal injury, there will be some accompanying mental
damage.”100 The issue considered here is when the law should recognize an independent tort for mental injury
(variously referred to as “psychic trauma,” “emotional distress,” or “emotional harm”). Traditionally, mental

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injury would not receive tort compensation unless it resulted from another tort.101 For example, if an
individual was slandered and suffered emotional distress as a result, the mental injury was compensable
because it was a consequence of slander. And, as noted above, pain and suffering are compensable in
connection with most torts. If an individual could not trace the mental injury to another tort, however,
compensation was unavailable.102
Recognition of emotional injury as an independent tort was slow in coming for a number of reasons, similar
to those explaining hostility to recovery for mental injury in workers’ compensation cases: a fear of false
claims, concern that quantifying and proving emotional injury would be too difficult, a belief that emotional
injury was “too removed” from the claimed source of an injury, and a fear that compensation would “open the
floodgates” to litigation.103 Those jurisdictions that did allow recovery for mental injury unassociated with
another tort generally insisted that the plaintiff show physical as well as mental effects of the defendant’s
conduct,104 just as a physical antecedent was traditionally required in workers’ compensation cases.
However, many jurisdictions have departed from this traditional view; as early as 1978, one commentator
observed that the trend in law “has been to give accelerated, increasing and extensive protection to feelings
and emotions and to enlarge and redress reparation for psychic injuries.”105 The most concrete illustration of
this trend is the recognition in the past several decades of the independent torts of intentional infliction of
emotional distress and negligent infliction of emotional distress. Although our discussion here is limited to
these torts, the elements identified below are likely to be the focus of any tort case where mental injury is
alleged.

(1) Intentional Infliction of Emotional Distress

Recognition that an individual could engage in tortious conduct by attempting to cause emotional harm to
another first came in 1948, in the Restatement of Torts. The Restatement (Second) of Torts106 summarized
the relevant case law as of 1965 by stating that liability would be imposed as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability
for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional
distress:
(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.

The Restatement (Third) largely leaves the tort of intentional infliction of emotional distress unchanged.107
Today, nearly all jurisdictions recognize the tort.108
Note that the “mental state” element of the tort is proven if either intent or recklessness is shown.109
“Recklessness” does not require a conscious purpose to produce harm, but instead refers to a deliberate
disregard of a high probability that harm will occur; thus, even if the harm was not intended, a defendant
could be liable if he or she was aware that harm was likely.110 If the defendant knows that the plaintiff is
particularly susceptible to emotional distress, for instance, causing such stress might be reckless even if not
intended.111
The second element of the tort—that the conduct be “outrageous”—is meant to signal that not all

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intentional or reckless conduct that results in distress to another is tortious. As one court that addressed this
issue explained, “Liability has been found only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”112 Examples from the cases include sending a package with a dead rat
rather than the expected loaf of bread, an undertaker’s refusal to relinquish control of the dead body of the
plaintiff’s son for the purpose of collecting an account, failure to provide prompt ambulance service, and
fraudulent inducement to enter a bigamous marriage. Other cases, however, have characterized a wide variety
of more common conduct as “extreme and outrageous,” including assaults, interference with the enjoyment of
property, threats, discrimination, defamation, false imprisonment, malicious prosecution, interference with
business relationships, wrongful eviction, and unlawful suspension from a labor union.113
In addition, although the courts have been reluctant to impose liability for harm caused by an individual’s
words—in part because of concern for the constitutional right of free speech114—numerous exceptions to this
rule have been recognized.115 Thus, for some time, a majority of jurisdictions have held racial or religious
epithets actionable if they result in emotional harm.116 In addition, innkeepers, common carriers, and others
in a business relationship with an individual may be subject to liability for insulting or abusive language.117
More recent cases also explore the application of the tort of intentional emotional distress to spousal abuse118
and situations in which children are exposed to domestic violence.119
The third requirement of the tort is that the conduct must have been the “proximate cause” of the injury.
This concept has already been discussed in connection with general tort law. But it is a particularly important
issue in mental injury cases, and thus is discussed in more detail below [see § 12.04].
Finally, the injury must be severe. In attempting to provide content to this concept, one authority
suggested that the plaintiff’s emotional injury must be exceptionally serious:

Complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the
price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to
endure it. The intensity and duration of the distress are factors to be considered in determining its severity.120

The terms used to describe emotional injury in these cases are as “varied as the language we use to describe
emotional injury.”121 Examples include mental suffering, mental anguish, mental or nervous shock, fright,
horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.122

(2) Negligent Infliction of Emotional Distress

The elements of the tort of negligent infliction of emotional distress are the traditional ones necessary to
establish an action for negligence—that is, a duty on the part of the defendant to protect the plaintiff from
injury, and a violation of the duty that proximately causes compensable injury.123 Not surprisingly, however,
the courts have been quite reluctant to impose liability when the simple negligence of another party caused the
mental injury.124 As a result, liability for negligent infliction of emotional stress was traditionally limited by
the “impact” rule, which required that the plaintiff suffer a physical injury.125 This limitation was similar to
the traditional requirement in workers’ compensation cases that physical injury be a condition for
compensating mental injury [see § 12.02(c)(1)].

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 Today, however, all but two states recognize a tort of negligent infliction of mental or emotional distress
without requiring physical injury or impact as an antecedent.126 The Restatement (Third) of Torts defines the
tort of negligent infliction of emotional distress as follows:127

An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct: (a) places
the other in danger of immediate bodily harm and the emotional harm results from the danger; or (b) occurs in the course of specified
categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.

The Restatement (Third) also recognizes that bodily harm to a third person can also lead to liability for
negligent infliction of emotional distress:128

An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional disturbance thereby
caused to a person who: (a) perceives the event contemporaneously, and (b) is a close family member of the person suffering the bodily injury.

One commentator has characterized (a) as “bystander” liability and (b) as “preexisting relationship” cases.129
Nearly all states recognize some version of this tort, but not all are as expansive as this formulation. In most
states that permit liability in such cases, the plaintiff/bystander and the victim must be related, and the
bystander must be within the “zone of danger” created by the defendant.130 For example, a mother who sees
her child struck and killed by a negligently driven automobile and suffers distress as a result will have a claim
—but if she only hears about the accident later, or if the woman is not the mother but the child’s teacher, she
will not. However, in other states the plaintiff need not be related or in the zone of danger, as long as the
mental injury suffered was “foreseeable” (i.e., reasonably predictable). Of the other states that have clear
rulings on the issue, some require a showing that physical injury has resulted from the plaintiff’s mental injury;
others, serious emotional harm but not physical injury; and a few do not require either a physical injury or
severe emotional injury, but do require something more than foreseeability.131 Consider the relevance of these
various approaches to Case Study 12.1.
For over 50 years, courts have also been willing to compensate individuals who suffer emotional distress as
a result of manufacturers’ negligence. For example, a baby food manufacturer was liable to a mother for
emotional distress suffered as a result of seeing her son gag and choke on foreign material contained in his
food.132 In another case,133 an auto manufacturer was liable for the emotional distress suffered by a couple
who saw their children ejected through the defective rear door of their van after it was struck by another
car.134

(c) The Predisposed Plaintiff

With respect to plaintiffs who are predisposed to mental injury, torts cases apply the same rule used in
workers’ compensation cases. A plaintiff’s preexisting condition or susceptibility does not per se bar
compensation. If the emotional distress would have resulted without the defendant’s intervening act, however,
the defendant should prevail.135 We now turn to the subtle nature of the causation inquiry.

12.04. CAUSATION IN MENTAL INJURY CASES: A PARADIGM CLASH?

Although they may employ different terminology, both workers’ compensation law and tort law refuse to hold

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a defendant liable unless the defendant “proximately caused” the victim’s injury. As noted earlier, for practical
reasons, the concept of “proximate cause” has come to mean “recent cause”—“the straw that broke the camel’s
back.” Events further back in the causal chain are considered irrelevant.136
Both medical and psychological science have a very different approach to understanding the causes of
mental health disorders. When thinking about posttraumatic stress disorder (PTSD), for example, scientists
often begin by asking, “Why do some persons develop this condition after a stressor when other persons do
not?” Also, because the development of a mental disorder coincides with the development of changes in neural
functioning, scientists increasingly look for causal explanations that link features of the brain to features of
thinking or behavior. Thus, scientists now know that genetic variation (particularly variation in genes related
to neurotransmitters like serotonin and dopamine) accounts for 30–70% of the likelihood that a person will
develop PTSD following exposure to a stressor, making genetic makeup one “cause” of PTSD. Scientists also
recognize that certain pretrauma environmental exposures (e.g., to child abuse, maternal depression, and other
adverse conditions or rearing) alters brain regions (e.g., the amygdala) that support emotional reactivity. Thus
previous experience is another “cause” of PTSD. Furthermore, acquired individual neuronal variation (e.g.,
differences in the size or activity of certain brain structures in monozygotic twins) affects the development of
PTSD following an emotional trauma. Finally, experiences in the days or hours after a trauma influence
whether symptoms will emerge, and if they do, what form they will take.137
For these reasons, in addressing the causation issue (in, e.g., the situation presented by Case Study 12.1),
the clinician who performs a forensic examination should merely indicate whether the legally relevant incident
(the employment injury or the negligent act by the defendant) appears to have played a role in the claimant’s
current mental injury, and should identify other contributing factors. Pronouncements that the work-related
event or the tort “caused” the claimant’s mental state, or is the sole, “predominant,” or primary cause of it,
should generally be avoided, as should attempts to quantify the degree to which an incident caused the injury
(statutory provisions notwithstanding). This approach best reflects the clinical view of causation: That is,
individuals have predisposing factors that render them vulnerable to developing mental problems in response
to certain kinds of precipitants.
This approach has another potential benefit as well. In part because of the differences between legal and
scientific views of causation, an examiner who is asked to state the “proximate cause” for a mental injury may
simply fall back on common-sense views of fault and blame. A more circumspect, less conclusory opinion by
the clinician may limit the tendency on the part of the legal decisionmaker to abdicate responsibility for
analyzing the causation issue and applying the relevant legal constructs.138

12.05. CLINICAL EVALUATION OF MENTAL INJURY

The evaluation of mental injury is similar in workers’ compensation and tort cases. Each type of evaluation
requires an understanding of the legal context of the evaluation, together with extensive information
gathering. The goal is to assess the possible impact of the alleged wrong by comparing the examinee’s pre-
and postevent functioning and, if changes are found, identifying the possible causes of the changes. Causes
may include the alleged wrongdoing, but also may involve other factors (e.g., other life events not related to
the alleged wrong, the effects of litigation, the impact of preexisting conditions). The examiner will also

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usually need to comment on the examinee’s future adjustment and functioning, and to recommend
interventions that may be helpful in ameliorating negative effects that have been observed.

(a) Context of Evaluation

The first issue in any evaluation is whether the clinician is qualified to perform it [see § 4.05(a)]. In workers’
compensation cases, some states require that physicians be involved, but (in contrast to how matters stood
three decades ago139) psychologists typically may serve as independent examiners in cases where their skills
and the nature of the claim match.140 As we make clear elsewhere [see § 1.05], as a general rule we favor
skills-based rather than degree-based criteria for identifying forensic examiners. In many mental injury cases,
evaluations that draw on both psychiatric and psychological skills may be helpful.
The clinician who has the educational and experiential qualifications necessary for a specific evaluation
should think about a number of other ethical and professional matters before agreeing to undertake the
evaluation. Any forensic evaluation carries with it the potential that “[e]motions such as anger, pity, guilt,
affection, resentment, disdain, humiliation, and others may give rise to unconscious motivations that conflict
with the [examiner’s] motivation to be objective.”141 Before conducting any evaluation, a clinician should look
at what kinds of attitudes, past opinion patterns, and relationships with referral sources might disturb or
undermine objectivity,142 along with aspects of the clinician’s personal background (e.g., ethnicity, sexual
orientation, political ideology, or religious beliefs) that might bias thinking about the plaintiff’s claims.143
During the evaluation, a process of self-questioning (e.g., “Am I fixating on a particular perspective in this
case, to the exclusion of other points of view?”) or obtaining a consultation may be helpful to remind oneself
to stay objective.144
A further problem, distinct from bias, stems from the examining clinician’s legal relationship to the
examinee. Davidson’s observation from over 50 years ago remains valid:

In a sense, the opposing doctors are examining different patients. The plaintiff-selected physician starts off with a good rapport. He is the
helping doctor. The claimant trusts him—but sees the defense physician as the enemy. The first physician gets the picture of a sincere,
trusting, and friendly soul. The defense examiner sees a surly and suspicious one. These differences obviously affect the examination
technique, as well as the credibility of the history and subjective symptoms.145

Thus examiners confront a host of psychological factors in examinees and within themselves for which they
must try to compensate as they attempt to construct accurate clinical pictures of the individuals they evaluate
—a task discussed more fully below.

(b) Scope of Evaluation

The mental injury evaluation is more challenging than many other forensic evaluations because the examiner
must describe the examinee’s emotional and behavioral functioning at three times: prior to the alleged harm (a
retrospective assessment), presently (a current-state assessment), and in the future (a prospective assessment).
In workers’ compensation cases, this last inquiry involves assessing how the injury will affect the claimant’s
wage-earning capacity. In tort law, the focus is on the plaintiff’s continued ability to function as the “person he
or she was” before the defendant’s tortious conduct.

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 Because the issues are so broad, these evaluations require the clinician to come to know and to explain the
claimant’s life much more thoroughly than do most of the evaluations discussed elsewhere in this book. The
clinician should gather a complete history, with emphasis not only on the events surrounding the alleged
injury but also on the period before, extending into the past as far as is necessary to understand the examinee’s
functioning before the event and the effects that the alleged harm may have had. Since the claimant’s
predisposition to mental injury or possible preexistence of the mental injury is highly relevant, the examiner
should gather full documentation of the plaintiff’s emotional and medical histories (if this has not been done
by the referral source). The clinician also should assess the examinee for the presence of past behavioral or
emotional disorders that have not received formal clinical attention, and should gather any other social history
that might shed light on the claimant’s condition in the past and at the time of the evaluation. If the
evaluation is being performed in the context of a workers’ compensation claim, the clinician should also obtain
a detailed description of the claimant’s employment, place of work, conditions of employment, and all other
work-related information.

(c) Use of Psychological and Medical Tests

Other evaluation methods supplement clinical interviews and in many cases are crucial to data interpretation
and opinion formulation. In cases involving physical injuries (e.g., in which a psychological harm is alleged to
have resulted in part from a physical injury, or in which a physical injury is alleged to have resulted from a
psychological stressor), additional medical tests may be of value.146 Psychological testing deserves special
mention, because it may be more helpful in this type of forensic assessment context than in any other. Many
of the symptoms quantified by clinical assessment instruments (e.g., depression, intellectual functioning,
memory functioning, anxiety) are directly relevant to assessments of pain, suffering, and impairments in
functional abilities (e.g., ability to work). Test results may prove of even more value when they can be
compared to results of testing administered before the event in question [see § 12.05(d)].147
Surveys of psychologists consistently show that structured testing plays an important role in personal injury
cases.148 Although forensic psychiatrists place greater emphasis on information gleaned from thorough,
detailed interviewing,149 they too recognize the important role of structured testing as a complement to
forensic interview findings.150 Of particular value in this regard is structured testing to evaluate response bias
and efforts at impression management, a topic to which we return later in this chapter.
As is the case with psychological testing in general mental health practice, some caveats apply to use of
tests in this forensic assessment context.151 First, many psychological tests are best conceptualized as
“hypothesis generators” and should generally not be used as the ultimate means of verifying whether an
examinee has a particular mental condition. In addition, examiners should remain cognizant of the “here and
now” nature of most psychological tests and assessment tools. Although a few types of psychological measures
assess relatively stable characteristics such as intelligence, most psychological tests assess only a person’s
current mental state and functioning.

(d) Structuring the Examination

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Legal decisionmakers consider the “total person” when adjudicating claims for damages.152 As a result, an
assessment that does not consider competing explanations for and consequences of claimed injuries will serve
its legal purpose poorly and may expose the clinician to personal embarrassment. As one commentator has
stated, for example, a clinician who testifies only to the emotional effects of trauma but fails to address its
effects upon physical functioning “is asking to have his or her testimony impeached.”153
Given the broad reach of a mental injury evaluation, some attempt to organize the inquiry is essential. In
his description of the typical personal injury examination process, Greenberg has recommended a five-part
format:

(1) preallegation adjustment: a retrospective inquiry into and assessment of the claimant’s pre-event strengths, competencies, vulnerabilities,
and impairments;
(2) trauma and distress: a retrospective inquiry into what the claimant reports being exposed to that has resulted in harm;
(3) event sequelae: a retrospective and current-state inquiry into and assessment of substantial impairments the claimant may have
experienced as a result of the alleged trauma, including indicators of resiliency;
(4) causation: identifying impairments that would not have occurred but for the alleged trauma, as well as impairments that would have
occurred otherwise; and
(5) prognosis: a consideration of possible future impairments and recommendations for interventions, treatments, and/or
accommodations.154

Among existing structured evaluation guidelines for assessment of mental injury, the most prominent may
be the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment.155
Although the AMA Guides and their report format (summarized in Table 12.1) are most typically used in
workers’ compensation cases, they help provide a structure for any examination of mental injury, including one
triggered by a tort lawsuit. The Guides are referred to throughout the following discussion.

TABLE 12.1. Recommended Report Format for Assessment of Mental Injury (AMA)

Behavioral observations
Arrival at examination
Appearance
Response style
Posture and gait

Examinee’s chief complaint(s)

Date and circumstances of onset of condition
Impact of condition on work and social functioning
Summary of outpatient evaluations and treatment
Treating professional(s)
Treatment(s)
Treatment response
Summary of hospitalizations and inpatient treatment for mental disorders
Names of hospitals
Dates of hospitalizations
Treatment(s)
Treatment response
Activities of daily living
Social functioning
Episodes of decompensation and effects on adjustment

Relevant history

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 Educational
Medical
Social
Legal
Marital
Occupational

Mental status
Appearance, behavior, and speech
Thought process
Thought content
Perceptual abnormalities
Mood and affect
Sensorium and cognition (including orientation, memory, concentration, and intelligence)
Judgment and insight

DSM-5 diagnosis

Prognosis

Note. Adapted from AMERICAN MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (6th ed. 2008).
Copyright 2008 by the American Medical Association. Adapted by permission.

(e) Ascertaining Mental Injury

The law requires some objective indicia of mental injury to make out a compensable claim. The touchstone for
this inquiry is generally the current edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM). A DSM diagnosis may lend credibility to a claim of mental injury and is often considered crucial
evidence in such cases. Indeed, some states (e.g., California) require the use of DSM in determining whether
a mental disorder exists. A diagnosis and mental injury are not necessarily synonymous, however. As one
observer noted, a diagnosis indicates that a mental disorder exists, but does not always clarify the degree of
dysfunction,156 and few diagnoses identify a cause. Moreover, even assuming reliable ratings, two persons with
the same diagnosis may have very different clinical presentations, given the fact that a particular diagnosis is
often associated with multiple criteria (none of which is either necessary or sufficient). Greenberg, Shuman,
and Meyer raise a number of other concerns regarding use of diagnosis in forensic evaluation contexts: Some
diagnoses may be unfairly prejudicial (e.g., antisocial personality disorder) and others may inappropriately
suggest legal causality (e.g., PTSD), while the absence of a diagnosis may erroneously suggest the absence of
impairment, harm, or damage. Greenberg et al. conclude:

In the personal injury arena, the factfinder is asked to assess damages including pain and suffering, as well as loss of ability to perform certain
functions. A psychiatric diagnosis is not the physical and mental distress suffered from an injury nor is it pain, suffering, and the inability to
perform certain functions. Such diagnosis is, at best, a categorization of the pain, suffering, or distress. But it is in no way a measure of the
inability to perform certain functions. To determine that issue, the factfinder must know the plaintiff’s relevant pre- and postevent
capabilities and performance.157

Most helpful in these cases are a rich description of the symptoms underlying the diagnosis, a similarly rich
description of the symptoms’ likely causes, and an explanation of how these symptoms affect the examinee’s
day-to-day adjustment and functioning. The AMA Guides also stresses the importance of evaluating the
examinee’s self-care; interpersonal relationships; concentration, persistence, and pace; and employability with

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accommodations.158 The sixth edition of the AMA Guides notes the importance of adhering to the DSM-IV
criteria for determining the presence of impairment,159 but depending on where they are working, examiners
may wish to use and apply now-current DSM-5 criteria.160
These caveats made, we also recognize that several different “conditions” are often alleged in mental injury
evaluation contexts. We explore these in some detail below.

(1) PTSD

Historically, the constellation of mental effects most frequently reported in workers’ compensation or
emotional distress cases was “traumatic neurosis,” although it had a variety of other names as well.161 In the
21st century, the “trauma”-based diagnosis most often rendered in mental injury cases is PTSD. From the
standpoint of individuals who seek compensation for mental injury (or their attorneys), PTSD is almost
“made to order,” because the diagnostic criteria explicitly include the proximate cause.162 DSM-5 explains
that a diagnosis of PTSD may follow a trauma in which an individual experiences another person’s death or
encounters actual or threatened injury or sexual assault. Triggering events can include experiencing the
traumatic event directly, witnessing others experience it, learning that a close relative or friend experienced the
event, or having an intense secondary exposure to a traumatic event or its aftermath—for example, through
repeatedly hearing detailed accounts of child abuse, or by collecting body parts after an explosion.
Furthermore, DSM-5 requires that the diagnosis of PTSD be made only if the individual displays a
constellation of problems:

Intrusion symptoms (e.g., involuntary, recurring, intrusive, and distressing memories of or dreams related
to the event, or strong reactions to stimuli related symbolically to the event).
Continuing avoidance of things associated with the traumatic event (e.g., trying to avoid reminders of or
thinking about the event).
Adverse thinking patterns and beliefs (e.g., not remembering key aspects of the trauma, negative
expectations or beliefs about oneself, or self-blame for the trauma).
Hyperarousal and proneness to overreaction (e.g., irritability, excessive startle response, insomnia, or
concentration problems).163

DSM-III, the 1980 edition of DSM, required that the traumatic event be one that is “generally outside the
realm of usual human experience.”164 When DSM-IV removed this criterion in 1994, it was reasonable to
expect that the prevalence of this diagnosis, and its use in litigation, would increase; research has borne this
out. In a survey of over 500 United States residents, Elliott reported that 72% of the respondents had
experienced at least one event that could serve as a qualifying stressor under the revised criteria (although the
number of persons who met all diagnostic criteria for PTSD was presumably much lower).165 In a meta-
analysis limited to studies examining prevalence of PTSD among persons who experienced a qualifying
trauma six or more months before their assessments, Shercliffe reported mean rates of current PTSD of 25%
(interpersonal violence), 15% (accidents), and 7% (life-threatening illness).166
In the process of developing the revisions that led to DSM-5, the American Psychiatric Association
recognized that changes in diagnostic criteria might influence several aspects of forensic practice and many

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types of legal determinations. For this reason, the DSM-5 Task Force solicited input from forensic
psychiatrists in the development and finalization of the manual.167 Following the publication of DSM-5, the
American Academy of Psychiatry and the Law devoted a special section of its journal to how the new manual
might affect forensic practice, including an entire article by Levin and his colleagues on the forensic
implications of changes in PTSD criteria.168 After reviewing many features of the criteria changes—including
some research169 suggesting that fewer trauma sufferers qualify for a PTSD diagnosis under DSM-5 than
under DSM-IV—the authors speculate on the potential impact of criteria changes in civil litigation related to
alleged mental injury. Among their comments are the following:

Inclusion of employment-related exposures as a possible source of trauma “may increase the demands on
examiners to understand work conditions, and particularly, the nature and frequency of traumatic material
encountered on the job.”170
“Defendants may ask plaintiffs’ experts to explain how it is possible for victims who were not either trained
professionals, dissociated, or head injured . . . to develop PTSD when they did not experience fear at the
time of the trauma.”171
“[C]ognitive constructs such as distorted self-blame and persistent negative beliefs may be difficult to
ascertain accurately, . . . and may be relatively easy to malinger.”172
For persons who do not meet full diagnostic criteria for PTSD, “diagnoses of adjustment disorder or other
and unspecified trauma- and stressor-related disorder should be applied . . . This approach will permit
plaintiffs to include the term trauma when describing potential damages.”173
The DSM-5 PTSD criteria appear to expand “the realm of traumatic stressors” to include “a hostile work
environment characterized by sexually offensive comments” and other “noncontact sexual abuse.”174
“Enshrining PTSD in a category of trauma- and stressor-related disorders may strengthen the perception
of direct causation, despite evidence that predisposing factors and posttrauma experiences often play an
important role in the development of PTSD. On the other hand, the expanded text discussion of the role
of pre-, peri-, and posttraumatic factors in the development of PTSD could be used by defendants to
weaken the causal but-for link between the trauma and resultant symptoms.”175
Individuals whose vocational responsibilities cause them to “routinely encounter lurid details of traumatic
events”—including firefighters, police, and emergency room personnel—“could make claims of on-the-job
injury that fall into the mental–mental injury category (i.e., a mental stressor precipitating psychological
symptoms) recognized under workers’ compensation legislation.”176

Although PTSD has become an accepted and well-established diagnosis among mental health
professionals, the details and contours of the diagnosis remain controversial, particularly to investigators who
specialize in researching this condition. Responding to the changes in diagnostic criteria introduced in DSM-
5, Hoge and 11 colleagues criticized the narrower scope of events that would qualify an individual for the
diagnosis—a change they attributed to wanting to “reduce ‘bracket creep’ and ‘frivolous tort or compensation
claims.’ ”177 Hoge and colleagues also criticize changes in descriptions—and in some cases replacement—of
DSM-IV symptoms that were often good predictors of outcome, or that described the kinds of complaints
offered by war veterans. “The revision,” Hoge and colleagues argue, “undermines our ability to generalize the
extensive research base” developed using previous diagnostic criteria and disrupts “the long chain of links,

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established through epidemiological, neurobiological, and treatment studies, [that provide the] foundation of
current practice for patients with PTSD.”178 In response, Friedman and his colleagues describe the extensive
levels of review to which the DSM5 criteria were subjected, as well as research showing “that diagnoses across
DSM-IV and DSM-5 were more concordant than not.”179
Researchers have developed several specialized instruments designed to aid in the assessment of PTSD.180
Among these are the PTSD Checklist (PCL)181 and its revised version, the PTSD Checklist for DSM-5
(PCL-5).182 Since its initial development in 1990, the PCL has been a widely used self-report measure for
PTSD and is regarded as having excellent reliability and validity for research purposes.183 The PCL contains
17 items that correspond to PTSD symptoms from DSM-IV; the PCL-5 contains 20 items that refer to
symptom criteria in DSM-5. On both instruments, respondents indicate symptom severity on a 5-point scale;
the items can be summed to generate nearly continuous gradings of symptom severity. Initial validation
studies showed that the PCL-5 exhibited strong internal consistency, test–retest reliability, and validity when
assessed alongside comparable measures; these findings led the authors to conclude that the PCL-5 was “a
psychometrically sound self-report measure of the DSM-5 PTSD symptom criteria, and is closely comparable
to the PCL.”184
Forensic examiners who wish to use a structured assessment tool to confirm a suspected PTSD diagnosis
will probably prefer to rely on a clinician-administered instrument rather than a self-report measure. One such
instrument to consider is the Clinician-Administered PTSD Scale for DSM-5 (CAPS-5).185 Like the PCL-
5, the CAPS-5 represents a revision of an earlier scale designed when DSM-IV was in use.186 The CAPS-5 is
a 30-item structured interview that comes in three versions that aid in (1) making past-month or lifetime
diagnoses of PTSD, (2) assessing recent severity of the 20 DSM-5 PTSD symptoms, and (3) evaluating
distress and impact on functioning. The full interview takes 45–60 minutes to administer. Ratings of CAPS-5
items use a 5-point scale that incorporates information about frequency and intensity of a symptom; scoring
instructions come with the instrument. The CAPS-5 thus yields a total symptom severity score and cluster
severity scores for specific types of symptoms.
For example, in assessing intrusion symptoms, a clinician administering the CAPS-5 asks the examinee,
“In the past month, have you had any unwanted memories of [the traumatic event] while you were awake, so
not counting dreams?” This is followed by several questions about what provokes the symptom (“How does it
happen that you start remembering . . . ?”), as well as queries about whether the memories are unwanted,
disturbing, persistent, and frequent enough to qualify as intrusive for purposes of the diagnosis. The clinician
then rates the symptom as anywhere from “absent” to “extreme/incapacitating,” based on its frequency,
intensity, and manageability.187

(2) Other Conditions

Although PTSD is the disorder most commonly associated with experiencing an unusual stressor, it is not the
only diagnosable psychological response to stress that might constitute a mental injury for purposes of
workers’ compensation or tort damages. People vary in how they display psychological distress after
experienced a traumatic or stressful event.188 Some individuals have a symptom pattern in which (as is true of
PTSD) anxiety or fear is the dominant emotion. Others may have responses in which depressed mood or loss

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of enjoyment predominates, in which case a diagnosis of depression might best capture their clinical features.
In some cases, the type of stressor predicts that depression is more likely than PTSD.189 Some individuals
may have a clinical picture in which anger and aggression are most prominent. A further consideration is that
certain types of events that would qualify as workplace injuries or torts may not meet the diagnostic criteria for
PTSD. In such cases, a diagnosis of adjustment disorder—accompanied by description of the associated
mental impairment—might best comport with the clinical presentation.190 Finally, DSM-5 contains the
diagnosis of “other specified trauma- and stressor-related disorder,” to describe syndromes in which an
individual has “symptoms characteristic of a trauma- and stressor-related disorder” that cause impairment or
distress, but that do not qualify for diagnoses such as PTSD. Examples would include adjustment-like
disorders in which symptoms begin after a several-month delay from the stressor, or disorders that persist
more than six months after cessation of the stressor.191
Other compensable conditions the clinician may encounter include grief or sorrow.192 These conditions
will of course be particularly likely in cases involving death of a loved one or in cases asserting intentional or
negligent infliction of emotional distress, relevant in jurisdictions where the survivors may claim damages for
“sorrow, mental anguish and solace which may include society, companionship, comfort, guidance, kindly
offices, and advice of the decedent.”193 In addition, the claimant may present evidence of the symptoms and
sequelae of concussion and postconcussion syndrome,194 various emotional and behavioral reactions to spinal
injuries,195 and (rarely) psychosis following trauma,196 as well as posttraumatic epilepsy197 and deficits in
intellectual functioning.198
Finally, given the broad nature of the compensability of mental injury and the fact that the constellation of
symptoms for which the claimant seeks relief normally need not fit into formal diagnostic nomenclature, the
clinician may be asked to evaluate the existence or impact of a host of vaguely defined symptoms, such as
irritability and headache. These may not readily lend themselves to diagnostic labels, but compensation may
nonetheless be sought.199

(3) Symptom Exaggeration and Fabrication

Examinees can falsely report or exaggerate symptoms of most conditions likely to be claimed in an allegation
of disability from a mental injury. In almost any forensic evaluation, some consideration of the examinee’s
response style is appropriate;200 questions about whether reported symptoms and impairments have been
exaggerated or fabricated are particularly likely in cases of alleged mental injury.201 DSM-5 explains that
malingering involves an intentional effort to feign or exaggerate mental or physical problems aimed at
achieving some “external incentive.”202 In the evaluation context discussed in this chapter, “external
incentives” may include getting paid time off from work, obtaining monthly payments for temporary or
permanent disability, or getting a large settlement in a tort case. How often disability claimants exaggerate or
feign mental problems is hard to know, but studies and estimates suggest that a quarter to a third of
examinees do so.203
Because the consequences of misclassifying honest or dishonest examinees can be serious, experts in
forensic assessment recommend a trimodal approach to assessing response style. In brief, the three elements
are as follows:

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 1. A careful clinical interview that seeks detailed data about the nature and effects of the examinee’s
complaints and symptoms. Assembling such information allows the examiner to compare what the examinee
states about his or her condition with typical patients’ reports of that condition and with objective features of
the examinee’s presentation. If, for example, an employee reports being very depressed and unable to
concentrate on work, yet laughs often and shows no lapses in concentration during an extended interview, the
examiner should suspect exaggeration of symptoms and impairment.204
2. Evaluation of collateral information. Even a clinical examination that lasts several hours provides limited
information about an individual’s capabilities and functioning. To evaluate symptom consistency across
situations and contexts, an evaluator ideally should have access to several types of information, including
medical records, reports of job performance before and after the claimed injury, observations of other
disinterested parties, objective data on substance use, and legal and work histories (which may reveal evidence
of repeated disability claims against employers).205 In addition to these traditional sources of forensic
evaluation data, the digital age now makes it relatively easy to find detailed information about many
examinees’ functioning, hobbies, interests, and daily activities.206 Not everything that people post is true, of
course, and forensic evaluators should use such information cautiously.207
3. Test data. Forensic examiners now can avail themselves of many instruments and tools that can assist
them in characterizing response style. Such instruments include stand-alone measures specifically designed to
test for feigned psychopathology or cognitive impairment, and validity scales “embedded” within other general
assessment instruments (e.g., the Minnesota Multiphasic Personality Inventory–2208 and the Personality
Assessment Inventory209). Psychologists in particular believe that evaluation of response style should include
data from instruments with empirically based support.210

Additional discussion of various means of assessing response style appears in § 3.06.

(f) Assessing the Relationship between Injury and Event

Of course, the mere presence of mental injury will not result in liability. The defendant/employer must have
proximately caused the injury. We discussed the conceptual problems related to this issue in § 12.04. Here we
explain some techniques that may help in assessing and reporting this aspect of mental injury cases.
To begin with, the clinician should have some knowledge of the relationship between particular life events
(e.g., an accident) and both preceding and subsequent psychological adjustment. Numerous studies have
investigated the relationships between personality characteristics and accidents.211 Numerous other studies
have demonstrated a positive relationship between life changes other than accidents and later psychiatric
illness.212
In addition, many structured questionnaires have been developed to help assess the frequency and/or
impact of life changes. For example, the World Health Organization’s Adverse Childhood Experiences
International Questionnaire,213 which is designed for administration to adults, asks about intense, common
sources of stress that many children suffer early in life: various types of abuse and neglect, violence between
parents or caregivers, violence among peers and within one’s community, and household dysfunction (e.g.,
alcohol and substance abuse). The significance of this sort of assessment within the current forensic context is

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the robust evidence it provides about how prolonged stress in childhood affects lifelong health and well-being
through effects on brain development and the immune system. Individuals who have faced more serious
adverse events in childhood develop adult behaviors or problems such as alcoholism, depression, unsafe sex,
cancer, and various other chronic illnesses.214 A related tool, the Centers for Disease Control and Prevention’s
Behavioral Risk Factor Surveillance System Questionnaire,215 provides an in-depth look at many health-
related behaviors that affect functioning.
Of course, an adult’s retrospective report about adverse experiences in childhood may leave out many events
that the adult actually experienced—a finding that affects research in these areas216 and, in all likelihood,
affects forensic assessments as well. Yet these sorts of instruments provide an evaluator with a systematic,
thorough way to inquire about sources of mental problems beyond the incident(s) reported by a claimant or
plaintiff. In general, questionnaires that inquire systematically about life changes can help the evaluator think
to ask about (and sometimes to discover) events or developments that contributed to psychological distress or
decompensation. Such information may also help the clinician to pinpoint areas of further inquiry and to
establish some “baseline” data regarding the examinee’s pretrauma condition against which to compare the
posttrauma presentation [see, e.g., the Lane Cates report, § 19.08(a)].
The creative examiner may make use of other measures of preincident adjustment when these are available.
Pre- and postincident psychological testing could be particularly useful, as might be other relevant records
from medical, military, and education sources. The more objectively and systematically the clinician can
document the examinee’s condition before and after the legally relevant incident, the more complete and
compelling will be the clinical formulation regarding the relative contributions of various factors to the client’s
distress.
Having accumulated these data, the examiner may find it helpful to think through alternative frameworks
for causation, using an approach that remains as valid now as when Ebaugh and Benjamin described it before
World War II:

1. The trauma (or event or accident) was the sole cause of the mental injury. This would apply to examinees
who displayed no signs of a mental disorder before the trauma—in other words, to cases where the mental
injury, in the examiner’s opinion, would not have occurred now or later, had no trauma occurred.
2. The trauma was a major precipitating factor. This would be the case where the examinee had some
predisposing vulnerability to developing an emotional disorder, but the symptoms would not have
emerged had the accident not occurred.
3. The trauma was an aggravating factor. In these cases, some emotional disorder was clinically manifested
prior to the trauma, but the condition was materially affected by the injury.
4. The trauma was a minor factor. In these cases, the emotional disorder was well developed before the
trauma, but the claimed precipitating event contributed somewhat to the intensity of the present
symptoms.
5. The trauma is unrelated to the emotional disorder.217

Drukteinis suggests that evaluators trying to draw conclusions about causation based on data assembled
during workers’ compensation evaluations, ask themselves these types of questions:

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1. Does the examinee have a diagnosable mental disorder?
2. If so, are all the symptoms consistent with that disorder? Might they represent symptoms of another
condition?
3. What is the evidence for how much distress the examinee experiences—just the examinee’s report, or
collateral sources as well?
4. Is the disorder one that might reasonably have resulted from the reported injury?
5. Can you verify the injury?
6. Before the injury, how well adjusted was the examinee at work, at home, and in general?
7. What was the examinee’s employment situation when the injury occurred? In what ways (if any) were
employment conditions undesirable?
8. Considering the examinee’s personal background and personality functioning, what are the plausible
alternative explanations for the mental disorder?
9. Has the examinee had a typical course of illness and response to treatment? Why or why not? Is the
examinee motivated to recover?218

Whatever analytical structure the clinician adopts on the issue of causation, it is important to remember, as
noted in § 12.04, that the factfinder decides where (if anywhere) along the spectrum of causation “proximate
cause” is found. The clinician’s job is to report the data and to distinguish between speculation and behavioral
observation.

(g) Ascertaining Effects of Mental Injury

The core inquiry in a mental injury case is how the injury affects functioning. In workers’ compensation cases,
where the examination is increasingly structured by statute or state policy, the AMA Guides or alternative
sources provide detailed guidelines on this issue. Some jurisdictions may use either categories of impairment
based on or modified from the fifth edition of the AMA Guides219 or a format similar to that used by the
Social Security Administration in disability determinations [see § 13.04(c)].220 The sixth edition of the
Guides restricts impairment to three diagnostic categories:

Mood disorders, such as depression and bipolar disorder.

Anxiety disorders, such as panic disorder and PTSD.
Psychoses, such as schizophrenia.221

The sixth edition has also revised the areas of impairment clinicians should investigate, to include self-care
and hygiene; social and recreational activities; travel; interpersonal relationships; concentration, pace, and
persistence; and employability.222 The Guides recommend a multistep impairment rating method that begins
with assigning a score on the Brief Psychiatric Rating Scale, followed by determinations of both Global
Assessment of Functioning and Psychiatric Impairment Rating Scale scores. Instructions are then provided
for combining these scores to reach a single impairment rating.223
In tort cases, the examination and opinion are structured the same way. Moreover, the examiner often will
consider issues with broader impact, as all injuries are potentially compensable (assuming that the other

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substantive criteria for tort liability are met). However, the clinician must still focus on ways in which the
individual is “diminished” from the person he or she was prior to the trauma or accident. For example, the
mere presence of increased irritability, depression, or constant headache may be insufficient to convince a jury
that such problems substantially alter the individual’s life from what it had been previously. Again, though the
AMA Guides focus on work-related injury, they provide a point of reference for the examiner in tort cases,
because they stress linking the injury to the activities in which the claimant normally engages.

(h) Prognosis

The clinician must gather information that is relevant not only to the present severity of a mental injury, but
also to the likely future impact of the injury and to whether treatment might alleviate its debilitating effects.
In tort cases, this information is directly relevant to the damage award the plaintiff will receive, assuming that
liability is found. In workers’ compensation cases, prognosis is important because it will be useful in
determining the likely duration of the impairment caused by the injury. As the AMA Guides stress, a key
component of this inquiry is the injured person’s motivation to recover and participate in rehabilitation
programs.224 Offering this kind of prognosis is similar to the types of assessments mental health professionals
often do in their treatment practices. In mental injury cases, however, several factors affect prognosis—
particularly motivation to improve—differently or more strongly than they typically do in clinical treatment.
In this regard, Gold and colleagues point out:

Noncompliance with rehabilitation, medication, and other treatment, along with an early decision by the claimant that he or she will never
work again, should raise suspicion about the role of choice versus impairment in the claim. . . . Exaggeration of symptoms or the potential for
financial or psychological gain may be present when an individual makes little or no effort to seek treatment or rehabilitation. . . .
Evaluation of alternative explanations for disability claims should take into account the possible contribution of workplace and personal
dynamics. For example, disability claims not uncommonly arise when an employee faces negative personnel action due to deficient work
performance, a personality change, lack of motivation, employment instability, or misbehavior. . . .
Outside the work setting, the claimant may face a personal life crisis that would be resolved by quitting work and claiming disability. The
timing of the claimed disability or manifestation of symptoms disproportionate to the claimed impairment, along with evidence of
exaggeration and malingering, may be clues to the presence of personal problems.225

An additional factor not present in ordinary clinical practice is the compensation process itself. A recent
meta-analysis of international studies that looked prospectively at compensation and mental health after
accidents and medical errors found that, despite often similar triggering events, individuals seeking
compensation had worse mental health complaints than individuals who were not seeking compensation—a
difference that the authors thought might “be explained by a selection bias or more anger and blame about the
accident.”226 In addition, mental health at initial and follow-up assessment improved less in the compensation
seekers—a finding attributable to “an unconscious financial incentive for victims not to get better as long as
the settlement lasts”227 and from “secondary victimization . . . caused by the numerous assessments and thus
repeated confrontation with the traumatic history, delayed funds and financial risks, and the often adversarial
relationship between [a] client and the insurance agency.”228
The evaluator’s report might not only address these types of issues, but also make recommendations as to
the timing and type of treatment that would most effectively deal with the claimant’s mental problems.

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 12.06. CONCLUSION: REPORTS AND TESTIMONY

Detailed guidelines for writing reports and testifying are found in Chapter 18 of this book, and other sources
also provide helpful guidance on these topics.229 As a way of summing up the various aspects of the clinical
evaluation of mental injury, however, we make three final points about communicating with the legal system,
based in large part on principles found in the AMA Guides.
First, the clinician should avoid overreliance on diagnosis. The inquiry in workers’ compensation and tort
cases seeks ultimately to explain why a particular individual reacted in a particular way to a particular event or
series of events. A diagnostic label may help the examiner to characterize the constellation of symptoms
displayed by the claimant, but it does not by itself suffice to explain how the claimant has been affected. A
diagnosis requires supplementation through a more detailed narrative in which the clinician provides the
substantive bases for his or her opinion about disability.
Second, a complete assessment of mental injury requires a longitudinal history of the impairment, its
treatment, and attempts at rehabilitation, including the claimant’s motivation to recover. Reports and
testimony must canvass the period before and after the legally relevant incident, and must offer prognoses
based on multiple sources of information. In thinking about causation, the examiner should consider any
preexisting conditions or predispositions and explain why these may or may not be relevant to the claimant’s
current condition. The examiner should also make clear that he or she is describing causation from a clinical
point of view, and that from a clinical perspective, multiple causation is the rule rather than the exception.
Third, examiners should avoid giving merely conclusory information. Because of the amorphous nature of
concepts such as mental injury, causation, and degree of impairment, clinicians bear a special responsibility to
provide descriptive reports and testimony in these cases. On a systemic level, the failure to exercise this
responsibility may have had significant consequences. Although written in 1979, these words from Blinder
assessing the legal system’s treatment of mental injury cases are still worth considering:

There is probably never a physical injury without some measurable psychic trauma or functional overlay. The past 30 years, and particularly
the last decade, however, have seen the exploitation of this truism in workers’ compensation and personal injury litigation coupled with ever
broader interpretations of the concepts of proximate cause, predisposition, work-connection, and secondary gain, resulting in a staggering
number of physically fit, mentally competent individuals forever being relieved of responsibility for earning a living—on psychiatric grounds.
The medicolegal system as it is presently construed not only drains away funds necessary for the sustenance of those truly disabled but may
foster or even increase disability where one otherwise would not have occurred . . . resulting in intolerable financial burdens for compensation
funds, employers and carriers alike, substantially higher costs to the consumer, and ultimately, loss of coverage.230

Not everyone shares this view, and expansion of recovery for serious mental injury is probably a good thing,
on the whole.231 But to the extent that Blinder’s critique is a response to legal decisionmakers’ face-value
acceptance of conclusory statements by mental health professionals about causation and degree of impairment,
we agree with it. Both the legal system and mental health professionals have more than occasionally forgotten
that the examiners should be disseminators of information, not benefits.

BIBLIOGRAPHY

AMERICAN MEDICAL ASSOCIATION, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (6th ed. 2008).
CLINICAL GUIDE TO MENTAL DISABILITY EVALUATIONS (Liza H. Gold & Donna L. Vanderpool eds., 2013).
Eric Y. Drogin et al., Personal Injury and Other Tort Matters, in 1 APA HANDBOOK OF FORENSIC PSYCHOLOGY: INDIVIDUAL AND

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 SITUATIONAL INFLUENCES IN CRIMINAL AND CIVIL CONTEXTS 471 (Brian L. Cutler & Patricia A. Zapf eds., 2015).
Liza H. Gold et al., AAPL Practice Guideline for the Forensic Evaluation of Psychiatric Disability, 36 JOURNAL OF THE AMERICAN ACADEMY OF
PSYCHIATRY & THE LAW S3 (2008 supp.).
Lawrence Joseph, The Causation Issue in Workers’ Compensation Mental Disability Cases: An Analysis, Solutions, and Perspective, 36
VANDERBILT LAW REVIEW 263 (1983).
Terence M. Keane et al., Posttraumatic Stress Disorder: Etiology, Epidemiology, and Treatment Outcome, 2 ANNUAL REVIEW OF CLINICAL
PSYCHOLOGY 181 (2006).
WILLIAM J. KOCH ET AL., PSYCHOLOGICAL INJURIES: FORENSIC ASSESSMENT, TREATMENT AND LAW (2006).
LEX K. LARSON & ARTHUR LARSON, WORKERS’ COMPENSATION LAW: CASES, MATERIALS, AND TEXT (4th ed. 2008).
MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS (2005).
Emmanuel S. Tipon, Right to Workers’ Compensation for Emotional Distress or Like Injury Suffered by Claimant as Result of Nonsudden Stimuli
—Requisites of, and Factors Affecting, Compensability, 106 AMERICAN LAW REVIEW 111 (2003).
Workmen’s Compensation, 82 AMERICAN JURISPRUDENCE (SECOND) §§ 1–670 (2016).

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CHAPTER 13

Federal Antidiscrimination, Entitlement, and Immigration

Laws

13.01. INTRODUCTION

State law governs most areas of forensic practice. However, federal law may also call for significant clinical
participation, in at least four areas. First, several federal civil rights statutes (most prominently, the Americans
with Disabilities Act [ADA] of 1990 and the Fair Housing Amendments Act [FHAA] of 1988) prohibit
discrimination against an individual with a mental disability in a number of settings, including employment
and housing. Under these statutes, an opinion from a mental health professional may be needed to determine
whether a mental disability exists, and if so, whether employers or housing authorities have made reasonable
efforts to accommodate the disability. Second, federal entitlement statutes (notably the Social Security Act)
ensure minimum levels of financial support for individuals with a disability. Here clinical input is important
because entitlement to financial assistance turns on whether an individual has a serious disability that
significantly affects the ability to work. Third, the federal Individuals with Disabilities Education Act (IDEA)
requires school districts to provide children with disabilities a free appropriate education in the public school
environment whenever possible—a goal that invites expert evidence regarding the nature of a child’s disability
and its effects on the child’s performance, as well as information about the best way to ameliorate those
effects. Finally, a number of clinical issues are raised by federal immigration laws that grant waivers from the
usual entry requirements in cases involving vulnerable children, nondangerous individuals who are crucial to
caring for family members already in the United States, and individuals who might be subject to abuse if they
are returned to their country of origin.
This chapter discusses the ADA, the FHAA, Social Security laws, and immigration laws (the IDEA is
discussed in Chapter 17, in connection with children’s issues). Significant changes have occurred in each of
these areas since the third edition of this book was published. Most notably, Congress enacted legislation
effectively overturning United States Supreme Court cases restricting application of the ADA. Clinical issues
connected with immigration have also become particularly important in the past decade; this book discusses
these issues for the first time in this edition.
At the outset, it is important to note a number of differences between evaluations performed under these
statutes and most other types of forensic evaluations. First, although each statute provides for judicial review,
original enforcement of complaints occurs through administrative proceedings. As discussed in § 2.04(c) and
elaborated on in this chapter, administrative proceedings differ in important respects from the prototypical
court process that triggers nearly every other type of evaluation discussed in this book. Second, the evaluation
issues that arise under these federal statutes are governed explicitly by the applicable statute or regulation; for
example, examinations performed pursuant to the Social Security Act must address specific issues delineated

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in that law. Therefore, the clinician engaged in examinations discussed in this chapter must be aware of
considerably more “law” than in many other forensic contexts, where awareness of one or two general
principles may provide adequate substantive knowledge. Third, many of the examinations performed under
these statutes will require specialized clinical knowledge, which may (or at least should) make examiners
without such knowledge hesitant to accept a referral. For example, in conducting examinations under the
ADA, providing advice about possible “accommodations” for a person with a mental disability may be difficult
without some grasp of industrial occupational psychology, or at least an appreciation of the particular
employment situation at issue.
The first section below (§ 13.02) examines the ADA, and the three subsequent sections look at the
FHAA, Social Security statutes and regulations, and immigration law, respectively. Each section discusses the
pertinent statutory and regulatory base, the forensic issues that may arise under each statutory regime, research
that may be relevant to the examination, and the examination process itself.

CASE STUDY 13.1

Fred Phantom is a 32-year-old individual who works for Better Plastics. His job is to test new forms of plastic that the company’s engineers
develop; if he performs these tests incompetently, products made with the plastic might shatter or melt when they are not supposed to. He
has recently been transferred to the night shift. He has been treated in a private hospital in the past for schizophrenia and still takes
psychotropic medication in low dosages. He has a good work history, but since his transfer to the night shift, he has experienced increased
difficulty sleeping (during the day). At the same time, he has fallen asleep twice while at work, and was reprimanded the second time it
happened. He is becoming increasingly uneasy about his work status and is concerned that he may have to increase his medication in an
effort to lessen stress. He has never revealed his psychiatric history because of a concern that his employer will terminate him. He is
uncertain how to proceed and has the following questions: Can he be fired from his job because of his diagnosis or his past or present
psychiatric treatment? Can he request a transfer back to the day shift, using his disability as a reason, without getting fired or hurting his
chances for promotion?
Assume that Fred is transferred back to the day shift, but a few years later begins experiencing panic attacks, which for brief periods of
time leave him unable to speak and feeling as if his body is covered with bee stings. He is diagnosed as having posttraumatic stress disorder
(PTSD) as well as panic disorder by the company doctor, who is also his treating physician. As a result of these problems, he is unable to
carry out his job at Better Plastics. On the doctor’s recommendation, the company offers him a job as a janitor (characterizing the offer as a
reasonable accommodation to his mental disability), but he rejects this offer in part because he views it as demeaning, and he is fired. He
becomes extremely fearful of other people and buys a Great Dane to protect himself, despite his apartment complex’s no-pet policy. He now
has three more questions: Can he get his old job back, or some other job with more perceived status than his previous position as a janitor?
If he can’t, is he eligible for Social Security Disability Insurance payments now that he has no job? Finally, can he stop his landlord’s
attempts to evict him because of his violation of the no-pet policy?

Questions: As a lawyer or mental health professional, what information would you like to have before answering Fred’s questions? How
would you respond, based on what you know?

13.02. AMERICANS WITH DISABILITIES ACT

The ADA1 was enacted in 1990 and became effective in 1992. One reason Congress passed the law was its
conclusion that 43 million Americans had one or more disabilities,2 many of whom suffered discrimination
when trying to access services, employment, and other aspects of society most Americans take for granted.3
The ADA is designed to end such discrimination by requiring that people with disabilities be treated like
other individuals unless it can be demonstrated, on an individual basis, that a person’s disability creates
substantial barriers to his or her employment (addressed in Title I of the Act), access to public services (Title

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II), public accommodations and services operated by private entities (Title III), and access to
telecommunications (Title IV). The fundamental importance of the ADA is that it represented the evolution
of disability policy in the United States from “a model of charity and compensation to . . . [a focus on]civil
rights.”4
This discussion focuses on Title I of the Act, barring discrimination in employment, because that is the
part of the ADA most likely to create issues for the forensic examiner. It can serve as a paradigm for
evaluations under any other title of the Act. In enacting Title I, Congress found that approximately two-
thirds of people with disabilities are unemployed,5 and that one reason for this situation was discrimination.
The preamble of the ADA states:

[I]ndividuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the
discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make
modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser
services, programs, activities, benefits, jobs, or other opportunities.6

Congress also noted that discrimination has a significant economic impact, “cost[ing] the United States
billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”7 Additional
support for Title I came from research showing a clear relationship between employment status and mental
health,8 and from other empirical evidence indicating that only a few companies had antidiscrimination
policies that addressed the needs of people with mental disabilities.9
Title I applies to any business with more than 15 employees. Although largely superseded by the ADA, the
Rehabilitation Act of 1973,10 from which the ADA borrows much of its language, continues to bar disability
employment discrimination by federal agencies and entities receiving federal assistance. Despite these laws,
full-time employment remains an elusive goal for many people with disabilities.11 But these statutes, together
with other government policies,12 clearly indicate that creation of employment opportunities for individuals
with disabilities is an important national objective.

(a) Overview of Title I of the ADA

Title I of the ADA establishes the general principle that

no covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.13

In contrast to many statutes, which use vague language intended to be refined through regulation or judicial
decision, Title I is very detailed,14 defining a number of activities that constitute employment discrimination.
These include:

1. limiting, segregating, or classifying a job applicant or employee in a way that affects the opportunities or status of that individual because
of his or her disability;
2. subjecting an applicant or employee with a disability to discrimination by participating in a contractual or other relationship with an
employment or referral agency, union, or training program [which discriminates against the individual];
3. utilizing standards, criteria, or methods of administration that either have the effect of discriminating based on disability or perpetuate the
discrimination of others;

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 4. excluding or otherwise denying equal jobs or benefits to an individual because of a known disability of an individual with whom the
applicant or employee has a relationship or association;
5. not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless it can be shown that the accommodation would impose an undue hardship on the operation of
the business of the covered entity; or denying employment opportunities to an applicant or employee if the denial is based on the need to
make a reasonable accommodation;
6. using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a
disability or class of individuals with disabilities unless the standard, test or other selection criteria as used by the covered entity is shown
to be job-related for the position in question and is consistent with business necessity; and
7. failing to select and administer tests concerning employment in the most effective manner to ensure that, when the test is administered to
an applicant or employee with a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills,
aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of the employee or applicant (except where such skills are what the test purports to measure).15

In addition, the ADA contains detailed provisions addressing who is covered by the ADA, provides for an
administrative enforcement procedure, and specifies remedies for violations, all described below.

(b) Coverage

The ADA protects a “qualified individual with a disability,” further defined as “an individual with a disability
who, with or without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.”16 This definition contains three separate criteria: “disability,”
“qualified individual,” and “reasonable accommodation.”

(1) Disability

The basic definition of “disability” under the ADA as a mental or physical disability that “substantially limits”
a “major life activity” has remained intact since its initial passage. However, in 2008 Congress revamped the
ADA because it concluded that the courts, including the United States Supreme Court, had unduly restricted
application of the law through statutory interpretations at odds with congressional intent; additionally, in
2011, the statutory revisions were fleshed out by the United States Equal Employment Opportunity
Commission (EEOC).17 These revisions effectively expand the universe of people potentially covered under
the ADA.
The threshold question regarding the presence of a “disability” is whether the person has an “impairment.”
The working definition of an “impairment” was established in the 2011 EEOC regulations.18 Under these
regulations, “physical or mental impairment” means the following:

(1) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as
neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome,
emotional or mental illness, and specific learning disabilities.

If the person has an impairment, the question is whether it rises to the level of a protected “disability.” The
ADA defines “disability” broadly to include either “(1) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3)

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being regarded as having such an impairment.”19 This definition creates three domains of “disability.” The
first covers individuals with current impairments. The second covers any individual who has a history of
impairment, but who may at present be unaffected by the impairment. The third covers any individual who is
perceived by others as having an impairment, whether or not the individual actually has or has had an
impairment. The latter two categories were included in the ADA to ensure that discrimination based on past
history, stereotyping, or false assumptions about an individual does not occur.20
As noted above, “mental impairment” is defined in terms that give it a broad reach, despite arguments in
Congress that it should not be covered at all.21 Given that the term includes “any mental or psychological
disorder” as defined in (2) above, virtually any diagnostic disorder will meet this initial definition except for
specific exclusions, noted below.22 As applied, courts and the EEOC tend to rely on the Diagnostic and
Statistical Manual of Mental Disorders (DSM) in deciding whether an impairment exists for purposes of the
ADA.23 However, it is worth noting that the ADA specifically excludes several conditions from coverage.
Alcoholism is a covered condition, but on-the-job drinking and illegal drug use are not covered (although
persons whose addictions have been successfully rehabilitated may be protected).24 Nor does the ADA protect
against discrimination on the basis of homosexuality, bisexuality,25 or other types of sexual orientation or
various types of criminal pathology, such as pyromania and kleptomania.26 It is also worth noting that such
personality traits as poor judgment or quick temper are not impairments for purposes of the ADA,27 and that
the revisions to the ADA have not changed this rule.28
Other conditions may or may not constitute mental impairments under the statute, depending on the
context and etiology. For instance, the EEOC has observed that general stress resulting from job pressures
would not come under the definition of impairment, but that a psychiatric diagnosis of stress disorder would
constitute an impairment.29 Similarly, although poor judgment, standing alone, is not an impairment, poor
judgment caused by a “mental disorder” is.30
A person with an impairment does not automatically meet the threshold requirement of the ADA,
however. The impairment must also substantially limit one or more major life activities that the average
person in the population could perform. The original ADA did not provide detailed definition of these terms,
leaving them subject to judicial interpretation. Although employees initially prevailed in many claims, several
cases decided by the United States Supreme Court near the turn of the century substantively restricted
employee prospects under the ADA. First, the Court ruled that an impairment must be considered in its
corrected condition to determine whether it constituted a disability within the meaning of the statute. In three
cases decided in 1999 (the principal one of which was Sutton v. United Airlines31), the Court reversed the
consensus within the courts and the EEOC by holding that if corrective measures eliminated the limitation
on a major life activity (e.g., if eyeglasses corrected substantial limitations in sight), then the person did not
have a protected disability.32 As a result, if treatment ameliorated an individual’s mental disability, the person
did not have a protected disability (at least under the present-impairment category).33 At the same time, if the
treatment itself was disabling or did not correct the person’s condition, then the person might have a
disability.34
As to which activities are considered “major,” EEOC rules initially listed walking, speaking, breathing,
performing manual tasks, seeing, hearing, learning, caring for oneself, working, sitting, and standing.35
Activities more relevant to those with mental disorders, such as interpersonal skills, concentration, and

531
cognitive processing, were initially specifically excluded from this list during the rulemaking process, out of
fear that impairments in these areas are widespread and would lead to too many ADA claims.36 However, in a
subsequent statement regarding psychiatric disabilities, the EEOC observed:

The major life activities limited by mental impairments differ from person to person. There is no exhaustive list of major life activities. For
some people, mental impairments restrict major life activities such as learning, thinking, concentrating, interacting with others, caring for
oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity that may be limited by mental impairments.37

While this statement includes work as a major life activity, another Supreme Court opinion, Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams,38 cast doubt on this proposition. In that case, the Court
unanimously reversed a federal appellate court ruling in favor of a claimant with carpal tunnel syndrome, on
the ground that “the central inquiry must be whether the claimant is unable to perform the variety of tasks
central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her
specific job.” The proper focus, in the Court’s view, was on the claimant’s ability to take care of her personal
hygiene, perform household chores, and bathe and brush her teeth. The Court also emphasized a point it had
made in other analyses of the ADA: A diagnostic category or disability does not automatically limit an
individual; rather, the inquiry must focus specifically on the impact of the impairment on the individual.
Finally, not for the first time, the Court noted the “conceptual difficulties” inherent in the argument that work
is a major life activity that, if impaired by disability, meets the threshold requirement of the ADA; according
to the Court, this interpretation would mean that all substantial work impairments would trigger an obligation
to accommodate them. The practical effect of the Court’s ruling was to raise the burden on the employee
claiming a substantial limitation, because substantial impairment in the workplace would not suffice if the
person could perform the specific types of basic activities (e.g., personal hygiene, household chores) noted by
the Court.39
In response to these and subsequent lower-court rulings further restricting application of the ADA,
Congress enacted the 2008 amendments referred to earlier [called the ADA Amendments Act, or the
ADAAA]. In doing so, Congress codified a more precise definition of “substantial limitation” of “major life
activities.” Because of their importance, the definitions are quoted here in full. “Major life activities” as
defined in the ADA include but are not limited to these traits:40

(i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and
(ii) The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth;
and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ
within a body system.

The statute also states, contrary to the suggestion in Toyota Motor, that “[i]n determining other examples of
major life activities, the term ‘major’ shall not be interpreted strictly to create a demanding standard for
disability. Whether an activity is a ‘major life activity’ is not determined by reference to whether it is of ‘central
importance to daily life.’ ”41
Congress also amended the ADA42 to make clear that treated disability is still covered by the Act:

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects

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 of mitigating measures such as: (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary
eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing
devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or
auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. (Emphasis added)

This language overturned Sutton and other judicial decisions holding that impairment would be considered
only in its corrected state.
Consistent with these statutory amendments, the EEOC’s implementing rules state that “[t]he primary
object of attention in cases brought under the ADA should be whether covered entities have complied with
their obligations and whether discrimination has occurred, not whether an individual’s impairment
substantially limits a major life activity”; that “the term ‘substantially limit’ shall be interpreted and applied to
require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior
to the ADAAA; that “[t]he comparison of an individual’s performance of a major life activity to the
performance of the same major life activity by most people in the general population usually will not require
scientific, medical, or statistical analysis”; that “[t]he determination of whether an impairment substantially
limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures”;
and that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major
life activity when active.”43 These provisions in essence nullify the Supreme Court’s decisions.
Another part of the regulation, titled “predictable assessments,”44 provides more specific guidance, stating
that “the individualized assessment of some types of impairments will, in virtually all cases, result in a
determination of coverage,” and listing the types of impairments that clearly limit major life activities. The
mental impairments so listed are these:

autism that substantially limits brain function;

cerebral palsy that substantially limits brain function;
epilepsy that substantially limits neurological function;
multiple sclerosis that substantially limits neurological function;
muscular dystrophy that substantially limits neurological function; and
major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia that
substantially limit brain function.

In short, the EEOC guidance establishes what amounts to a conclusive presumption that the impairments in
question constitute disabilities within the ADA, which substantially enlarges the universe of people who will
be found covered by the ADA. Given its specificity, the guidance also reduces the utility of expert testimony
on these issues.
Before leaving the subject of impairment,45 it should be noted that the ADA does not just bar
discrimination against those who are currently “disabled.” Recall that the ADA’s definition of disability also
includes having a record of, or being regarded as having, the type of impairment defined above. One
illustration the EEOC gives of the first situation is the following: “A job applicant, formerly a patient at a
state psychiatric institution, was misdiagnosed as psychopathic and the diagnosis was never removed from her
records. If she is otherwise qualified for the job, but is not hired because of this record, the employer has
violated the ADA.”46 In such a case, although the employee is not presently disabled, the protection of the
ADA is triggered because the employee’s history of impairment was the basis for an employment decision.
However, courts have also held that unless the employment decision is based on a tangible record indicating

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the existence of disability, this criterion is not met.47
With respect to the “regarded as” component of ADA protection, the amendments to the ADA made a
significant change. Specifically, the statute now states that an individual is “regarded as” having a disability “if
the individual establishes that he or she has been subjected to an action prohibited under this chapter because
of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived
to limit a major life activity.”48 This provision removes the requirement of a limitation on a major life activity
from this prong of the ADA. As Michelle Travis, a scholar whose work focuses on the ADA, notes: “Without
a functional limitations component or a stigma-based inquiry, the ‘regarded as’ prong now protects nearly all
individuals from impairment-based decision-making in the workplace, just as Title VII protects against
employment decisions based on race, color, national origin, religion, and sex.”49

(2) Qualified Individual

A person who has a disability as defined by the ADA does not automatically benefit from the statute. He or
she also must be a “qualified individual”—a person who, “with or without reasonable accommodation, can
perform the essential functions of the employment position that such individual holds or desires.”50 The
EEOC has broken down this definition into two separate factors. First, it must be determined that the person
meets the “necessary prerequisites” for the job in terms of education, work experience, training, skills,
licenses/certificates, and other job-related requirements (such as good judgment or the ability to work with
other people).51 Second, if the person meets the general qualifications for the job, he or she must be able to
perform the “essential functions” of the job with or without “reasonable accommodation.”52 The emphasis on
“essential functions” is designed to assure that an individual with a disability will not be considered unqualified
simply because of the inability to perform marginal or incidental job functions.
Determining the “essential functions” of a particular job is often difficult. The ADA provides that the
employer’s judgment about this issue should be given significant weight.53 The EEOC regulations further
define the term as “the fundamental job duties of the employment position the individual with a disability
holds or desires”54 and provide several illustrations of this concept. A function may be essential because the
position exists to perform the function; for example, if a person is hired to proofread documents, the ability to
proofread would be an essential function because the only reason the position exists is to proofread.55 A
function also may be essential because only a limited number of employees are available to perform the
function.56 Finally, a function may be essential because it is so highly specialized that the employee has been
hired for his or her expertise in performing a particular function.57 In addition, the scope of a job’s “essential”
functions may be based on (1) written job descriptions prepared before interviewing for a position, (2) the
amount of time spent on the function, (3) the consequences of not having the function performed, (4) the
terms of a collective bargaining agreement, (5) the work experience of past employees in a particular job, and
(6) the experience of employees in similar jobs.58
As noted above, in deciding whether a function is “essential,” deference is to be given to the employer’s
judgment.59 An example of how courts have interpreted the concept is found in McMillan v. City of New
York.60 McMillan suffered from schizophrenia and worked as a case manager for a social services agency. The
agency had a flex-time policy, but McMillan, who took medication that he said made him drowsy, was often

534
tardy even under the terms of the policy. After ten years, his supervisors began to refuse to approve his
tardiness. McMillan requested a later start time as an accommodation for his disability, but instead was
suspended. He challenged this penalty under the ADA. The District Court granted summary judgment to the
defendant (New York City), in part based on a conclusion that arrival at work by the time set by the agency
was an essential function of the job. However, the Court of Appeals reversed, finding that there were issues of
fact regarding whether McMillan could perform the various tasks of the job regardless of his start time, and
whether providing later start times as an accommodation would be an undue hardship on the agency. The
Court of Appeals stated: “Here it is undisputed that McMillan was tardy because of his disability and that he
was disciplined because of his tardiness. In other words, McMillan was disciplined because of his disability.”
The Court remanded the case to the lower court for further fact finding.
Consistent with this holding, the EEOC has taken the position that regular work attendance—sometimes
difficult for people with disabilities—is not necessarily an essential job function. However, many courts have
often been hostile to this type of claim.61 While the ADA encourages courts to consider telecommuting and
other technological facilitators in determining the meaning of “attendance,”62 even in such cases there is
judicial resistance to plaintiffs’ claims.63
Two other cases involving matters other than tardiness provide other examples of judicial resistance to
ADA cases. In Altman v. New York City Health and Hospitals Corporation,64 the court decided that the
plaintiff, who had been Chief of the Department of Internal Medicine at one of the defendant’s hospitals
before alcoholism led to his removal, could no longer carry out the essential functions of that job despite
intervening treatment for his condition. Although the hospital had concluded that Altman could be reinstated
as a physician in a high-level position on a trial basis, it also concluded that he still needed supervision, and
that such supervision would be lacking in his position as chief of the department—a view in which the court
concurred. As another example, the EEOC concluded in Stocketta v. Runyon65 that a postal clerk with PTSD
was not otherwise qualified to perform the essential duties of his position, which involved computer data
entry, because the stress accompanying heavy computer work triggered Stocketta’s memories of military
experiences and debilitated him from working.

(3) Reasonable Accommodation

If an individual has a recognized disability or a record of such a disability (but not if the disability is only
“perceived”) and the individual is qualified to perform the essential functions of the job, then he or she is
entitled to any “reasonable accommodation” of the disability necessary to carry out the job. The ADA
prohibits

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on
the operation of the business of the covered entity.66

It is also illegal discrimination for an employer to deny employment to an otherwise qualified individual if the
denial is based on its anticipated need to make a reasonable accommodation.67
The reasonable-accommodation principle has a long history in disability rights statutes and litigation.68 It

535
has become even more important since the 2008 amendments, since many more individuals will now cross the
disability threshold and be able to argue for accommodation.69 In general, “an accommodation is any change
in the work environment or in the way things are customarily done that enables an individual with a disability
to enjoy equal employment opportunities.”70 Federal regulations create three categories of reasonable
accommodation, designed to accomplish the three objectives established by the statute:

(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees without disabilities.71

The ADA indicates that specific accommodations might include making existing facilities readily
accessible to and usable by individuals with disabilities; restructuring jobs to permit part-time or modified
work schedules; reassignment of the individual to a vacant position; acquisition or modification of equipment
or devices; and providing training materials and qualified readers or interpreters.72 These types of
accommodation principles attempt to overcome barriers to employment of people with disabilities.73
At the same time, there are limitations on an employer’s obligation to accommodate disability. First, the
employer is obligated to make an accommodation only to an individual’s known limitations. This provision
requires the employee to disclose his or her disability, although the request need not be made in writing or use
the phrase “reasonable accommodation,”74 and the employer may have an obligation to engage in an
“interactive process” with the individual to determine the scope of possible accommodations.75 Second, the
reasonable-accommodation obligation applies only to the removal of barriers to employment, not those related
to nonemployment goals. For example, if an individual requires “personal use items” both on and off the job
(e.g., medication or music therapy), the employer is not obligated to make such items available as an
accommodation; only those items that are necessary to enable the individual to perform essential job functions
are required.76 Third, a reasonable accommodation, if it is effective, does not need to be the best possible
accommodation. Fourth, the United States Supreme Court has made clear that labor agreements
presumptively take precedence over an employee’s request for reasonable accommodation. In U.S. Airways,
Inc. v. Barnett, the Court ruled that an employer is not obligated to create an accommodation that conflicts
with seniority provisions of a labor agreement between the employer and its workforce (though the Court also
rejected the employer’s argument that employees with disabilities should always be treated in a neutral rather
than preferential manner).77
Finally, perhaps the most important exception is that an accommodation need not be made if it causes the
employer “undue hardship.” The ADA lists a number of factors to be considered in determining whether a
proposed accommodation would work undue hardship: the nature and cost of the accommodation; the overall
financial resources of the covered entity; the size of the business and number of persons employed; the impact
of the accommodation upon the operation of the business; the number, type, and location of its facilities; and
the composition, structure, and functions of the workforce.78 The EEOC admonishes, however, that an
employer may not claim undue hardship solely because an accommodation “has a negative impact on the
morale of other employees.”79

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 Application of the reasonable-accommodation principle to individuals with mental disabilities may be
more difficult than in cases of physical disabilities, for a number of reasons. First, employees or applicants may
be reluctant to disclose the existence of their disability because of the stigma associated with mental
impairment (as in Case Study 13.1).80 Second, employers may be less familiar with mental disabilities and
their impact on the ability to work. Similarly, employers may be less certain about how to provide
accommodation for people with mental disability.81 Finally, as the debates in Congress attest, there may
simply be more resistance to accommodating those with mental, as opposed to physical, disabilities.
Nonetheless, accommodations can be and have been made for persons with mental disability. One still
useful guide to the ADA provides a number of suggestions for such accommodations, in four areas: (1)
changes in the physical environment, (2) flexible scheduling, (3) restructuring of jobs and training, and (4)
improved communication and support.82 In the first area, the authors suggest that employers can build
partitions and place people in enclosed offices, if this is necessary to provide quiet. In connection with
providing flexible scheduling, the authors’ recommendations include not only obvious adjustments, such as
shift changes and split time, but also longer work breaks and leaves, which may be the most important type of
accommodation for those with mental disabilities.83 The third area—job restructuring and training—is
probably the most controversial, because it is likely to require the biggest and most expensive changes, and
thus trigger claims of unfair “affirmative action” for people with disabilities. Nonetheless, possible
accommodations in this area might include restructuring jobs to focus on their primary functions, providing
part-time opportunities and special training, allowing additional time to learn new jobs, breaking the duties of
a job into discrete steps, and the use of clear job descriptions. Finally, in the area of improved communications
and support, suggestions include regular meetings with a supervisor to establish clear goals, sensitizing other
employees to the nature of an individual’s disability, allowing the use of a job coach and other peer supports,
providing health insurance that covers the cost of mental illness treatment, and establishing on-site services or
access to such services as employee assistance programs and crisis intervention services.84Although not all
these suggestions might be supported by the courts in a given fact situation, a number of them have been
followed by employers, as Table 13.1 attests.85

TABLE 13.1. Examples of Reasonable Accommodation

Time off for weekly therapy sessions, or schedule adjustments to accommodate these sessions
Time-management training
A mentor or job coach for employees with [intellectual disability] to demonstrate and discuss tasks, the organization of work, or specific on-
the-job problems
Special supervision at the beginning and end of the shift to organize work and review lists of tasks to see that they have been completed
A quiet environment free of background noise or distractions
Telecommuting
A modified schedule that permits an employee with narcolepsy to nap, or a place in an empty office or other location in which an employee
may take a nap
Allowing a person who has bipolar disorder to work in bright light or near a window
Allowing an individual with a learning disability to dictate work, instead of writing it or typing it
Obtaining a spell-checker or furnishing software with spell-check and grammar-check capabilities for an employee with a learning disability
Allowing an individual more time to complete certain tasks
Using descriptions with an employee other than “right” or “left”

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 Providing extra or specialized training to an employee
Allowing an employee to trade marginal job functions with a coworker
Educating coworkers and supervisors about the special needs of a particular employee, including behaviors, how to handle seizures, and
appropriate terminology
Allowing the use of company facilities for self-help or support groups
Providing instructions in written form instead of oral form, or vice versa, to accomodate specific learning disabilities
Allowing an individual to tape-record interviews or meetings and to have transcripts prepared
Color-coding objects or files
Having supervisors explain inappropriate behaviors in the workplace and why they are inappropriate
Having supervisors provide unusually specific instructions

Note. From Margaret Hart Edwards, The ADA and the Employment of People with Mental Disabilities, 18 EMPLOYEE RELATIONS L.J. 347,
381–82 (1992–93). Reprinted by permission.

A number of decisions have found proposed accommodations to be unreasonable, however. For instance,
in Gore v. Shalala,86 the EEOC concluded that the agency sufficiently accommodated an employee with an
alcoholism problem by rescinding its removal proceedings against him and giving him leave without pay to
receive treatment. The agency did not need to grant the employee’s requests for advanced sick leave to cover
the treatment period and for a transfer during his recovery to a place closer to his family. Gore illustrates the
precept noted earlier that the ADA does not require an accommodation to be the best possible one. In other
decisions, the court or the EEOC has simply found that the employee could under no circumstances carry out
the essential functions of the job, and that accommodation was therefore impossible or unnecessary. More
recent cases have reached similar results.87 These cases echo EEOC guidelines, which state that “employees
with disabilities should not be evaluated on a lower standard or disciplined less severely than any other
employee. This is not equal employment opportunity.”88 Fred Phantom’s request for the day shift and his
subsequent request for a job other than janitor (in Case Study 13.1) need to be considered against this
backdrop.89
At present, the current state of the law regarding reasonable accommodation can be summarized as follows:
(1) The reasonable-accommodation principle is a core concept of the ADA and the primary vehicle for
ameliorating the impact of disability on an individual’s ability to work; (2) the individual bears the burden of
requesting an accommodation, though the manner in which a request is made need not follow a particular
formula; (3) the employer should engage in an “interactive process” in determining whether a requested
accommodation is reasonable; (4) employer obligations are limited by the exception for “undue hardship,”
although the accommodations most often suggested for people with mental illnesses are not particularly
costly; (5) if the individual, even with accommodation, cannot perform the essential functions of the position,
then the ADA’s protection disappears.

(4) Direct Threat

An aspect of the ADA’s coverage deserving of special mention is its provision permitting employers to
condition a job on a showing that the individual “not pose a direct threat to the health or safety of other
individuals in the workplace.”90 The term “direct threat” (which in Congressional debates focused primarily
on the question of individuals who were HIV-positive) is defined as a “significant risk to the health or safety

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of others that cannot be eliminated by a reasonable accommodation.”91 A person who poses a direct threat is
excluded from the protection of the ADA.
The regulation implementing this statutory exclusion provides that the determination as to whether an
individual poses a “direct threat”

shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This
assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available
objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of
the risk; (2) The nature and the severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence
of the potential harm.92

The EEOC’s interpretive guidelines flesh out the meaning of this regulation with three principles.93 First,
the risk must be significant (i.e., must represent a high probability of substantial harm, rather than being
speculative or remote). Second, the determination must be made on a case-by-case basis. It is illegal to assume
that individuals in a particular category (e.g., people with a particular diagnosis of mental illness) represent a
“direct threat.” Third, the determination must rely on “objective, factual evidence—not on subjective
perceptions, irrational fears, patronizing attitudes, or stereotypes—about the nature or effect of a particular
disability, or of disability generally.” The guidelines also contain language specific to individuals with mental
disabilities: “To find that an individual with a psychiatric disability poses a direct threat, the employer must
identify the specific behavior on the part of the individual that would pose the direct threat. This includes an
assessment of the likelihood and imminence of future violence.”94 As an illustration, the EEOC notes that a
law firm may not reject an applicant with a history of mental illness on the basis of a generalized fear that the
stress of attempting to make partner might cause a relapse of the illness and somehow harm others. In
contrast, the EEOC notes, a man with a history of altercations who applies for a position with an employer
after being terminated by another employer for telling a coworker he would get a gun and “get his supervisor”
would pose a direct threat.95
In short, the ADA seeks to deter judgments about danger based on stereotypes about groups of people
with disabilities, focusing instead on the individual and proof of the behaviors that give rise to the purported
threat. However, one review of practice under the Rehabilitation Act (the predecessor of the ADA) indicated
that an employer typically was required to do little by way of accommodation when an employee’s mental
disability led to disruptive or dangerous behavior.96 Administrative and judicial decisions under the ADA
suggest continued impatience with behavior that might arguably pose a threat to others. Thus, although some
commentators have suggested that the ADA requires employers to try to accommodate potentially violent
employees,97 the courts appear to have written such a requirement out of the ADA. For example, in Palmer v.
Circuit Court98 the court noted that employers had a duty to create reasonable accommodations, but “we
cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts.”
One specific example is Scofield v. Bentsen,99 where the plaintiff—a man with acknowledged alcoholism
who was working for the Bureau of Alcohol, Tobacco, and Firearms—had been involved in a car accident
while driving a government vehicle under the influence. Although the EEOC found plausible the plaintiff’s
assertion that his continued employment could be accommodated by providing him a “firm choice” between
alcohol treatment and termination, it found this option to be an undue burden on the government, because it
would compromise “public confidence” and (given the plaintiff’s need to carry firearms) perhaps endanger the

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public as well. The danger in this case seemed to be of the “generalized” type the EEOC guidelines indicate
should not prevent accommodation, but it was nonetheless of sufficient concern to convince the EEOC that
the ADA did not cover the plaintiff.100 This type of decision suggests that people like Fred Phantom in Case
Study 13.1, who desire jobs that could endanger others if inadequately performed, may find significant
difficulty in fitting themselves within the protection of the ADA.
Other cases even more clearly illustrate the direct-threat scenario. For instance, in Franklin v. U.S. Postal
Service,101 decided under the Rehabilitation Act, the court upheld the discharge of an individual with
schizophrenia who periodically refused her medication and had a history of carrying a concealed weapon into
the office of the state’s governor and attempting to force entry into the White House. The court found that
the employee was not “otherwise qualified” for her job; even if she were qualified, the court asked rhetorically,
“how many times must violence be overlooked before a ‘reasonable accommodation’ has been achieved?” In a
more recent case, decided under the ADA, a federal court granted summary judgment against an employee
who engaged in “bizarre and threatening behavior” at work; the employee, diagnosed with and treated for
paranoid schizophrenia and bipolar disorder, had threatened other employees and (according to the employer)
required more than ordinary supervision to perform her work. The court held that her threats against
coworkers placed her outside the statute.102
The rise of prescription drug abuse in the United States has led to another type of direct-threat scenario. In
Bates v. Dura Automotive Systems, Inc.,103 the appellate court ruled that an employer was within its rights to
terminate employees for the use of oxycodone and other prescription drugs. The employer argued that the use
of these drugs constituted a direct threat in the workplace because the employees worked in manufacturing
making glass windows, and the drug labels warned against use of the medications when operating machinery.
The case has been criticized on the ground that the ADA requires a case-specific individualized assessment of
“direct threat,” and that prescription drug use is not a reasonable proxy for such a query.104
For some time, it was unclear whether the direct-threat exception to the ADA encompassed threats to self
rather than to others. This issue was resolved by the United States Supreme Court in Chevron U.S.A. v.
Echazabel.105 In that case, the employer refused to hire the applicant because a physical examination showed
that the applicant had a liver abnormality caused by hepatitis C that would be aggravated by exposure to
toxins at the employer’s plant. A unanimous Supreme Court upheld an EEOC regulation recognizing that an
employer could use a defense of “threat to self” in an ADA action; the Court found nothing in either the
history of the ADA or the Rehabilitation Act suggesting that Congress intended to exclude threats to self
from the direct-threat provisions of the ADA. This decision has been criticized as paternalistic and as a
further barrier to the employment of people with mental illnesses; it has also been suggested that the decision
permits rejection of job applicants based not only on evidence of suicidal inclinations, but also on tests
indicating increased genetic risk for illness.106 Regardless, it is now clear that an individual may be excluded
from the protection of the ADA on the basis of a direct threat either to others or to self.

(c) Applicant Testing

The ADA also governs employment application processes (as well as school and licensing applications, which
are not covered here107). In contrast to hiring and firing decisions, an applicant claiming discrimination in the

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application process need not show that he or she is qualified for the job. Rather, as indicated in § 13.01, this
aspect of the ADA is violated when an employer uses

qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a
class of individuals with disabilities, unless the standard, test or other selection criteria . . . [are] shown to be job-related for the position in
question and is consistent with business necessity, and
fails to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a
job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills,
aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired
sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to
measure).108

This provision is designed to ensure that employer-created job qualifications do not routinely screen out
individuals whose disability does not interfere with their ability to perform the job.109 The ADA regulates the
application process in three significant ways: First, it regulates the types of questions that an employer may ask
an applicant; second, it regulates the types of tests that may be administered, both before and after a job offer;
third, it creates rules for the administration of tests.

(1) Restrictions on Certain Types of Questions

In an effort to reduce the temptation to discriminate, the ADA prohibits employers from asking questions
that focus on whether an applicant has an impairment. The EEOC defines a “disability-related inquiry” as “a
question (or series of questions) that is likely to elicit information about a disability.”110 Questions that are
prohibited under this definition include queries about whether an employee/applicant has or ever had a
disability, the severity of a disability, or its origins; asking for medical documentation regarding a disability;
asking a coworker, family member, doctor, or another about an employee’s/applicant’s disability; asking about
one’s history of workers’ compensation claims; asking whether the employee/applicant is taking prescription
drugs or medication, or has in the past; and asking a broad question about impairments that is likely to elicit
information about a disability (e.g., “What impairments do you have?”).111
Questions the EEOC indicates may be asked include asking generally about an employee’s/applicant’s
well-being; asking an employee/applicant who looks tired or ill if he or she is feeling okay; asking how an
employee/applicant is doing following the death of a loved one or end of a relationship; asking about non-
disability-related impairments (e.g., “How did you break your leg?”); asking whether the employee/applicant
can perform job functions; asking whether the employee/applicant has been drinking; asking about current
illegal use of drugs; and asking an employee/applicant to provide a contact in the event of an emergency.112
Furthermore, otherwise prohibited questions may be asked when a particular issue is job-related and
consistent with business necessity. For example, police officers may be required to report taking medications
that might impair their judgment in using firearms.

(2) Restrictions on Certain Types of Tests

The manner in which the ADA and implementing regulations restrict testing before and after a job offer
reflects the underlying premise of the ADA: Tests cannot directly seek to determine whether a person has a

541
protected impairment or disability. To the extent that tests are used in a way tending to screen out persons
with disabilities, such tests may only do so using exclusion criteria that are job-related and consistent with
business necessity.113 Thus, for instance, preemployment medical examinations are generally prohibited,
because they will reveal the existence of an impairment.114 Similarly, the EEOC suggests that a test that is
routinely used in clinical settings to diagnose mental disorder or impairment, and that is interpreted in the job
setting by a psychologist, would be a medical examination under the ADA.115
In contrast, tests to determine illegal drug use may be administered at any time, including before
employment, although the test to detect drug use cannot be used to uncover both legal and illegal drug use.116
In addition, the EEOC has indicated that “psychological tests that measure personality traits such as honesty,
preferences, and habits” should not be considered medical examinations, and thus are generally permissible.117
Early commentary on the ADA also suggested that because personality traits (e.g., the ability to handle stress)
are not in and of themselves impairments under the ADA, tests designed to elicit their existence might
continue to be permitted, as long as they did not disadvantage people with impairments that are covered by
the ADA.118
At this time, however, the status of many common psychological tests such as the Minnesota Multiphasic
Personality Inventory–2 (MMPI-2) continues to be unclear under the ADA. Although early cases were
inconsistent,119 the United States Circuit Court of Appeals for the Seventh Circuit found that an early version
of the MMPI was a medical examination within the meaning of the ADA when used to test applicants for
management positions, because certain questions could be used to diagnose psychiatric disorders.120 In
contrast, the Eighth Circuit Court of Appeals reached a contrary conclusion when the MMPI-2 was used in
screening potential police officers before employment. The Court wrote, “[W]e easily conclude that
appropriate psychological screening is job-related and consistent with business necessity where the selection of
individuals to train for the position of police officer is concerned.”121

(3) Test Administration

The ADA also affects the manner in which tests and the application process in general are administered. For
example, if a test is given to an individual with impaired sensory, speaking, or manual skills, it must be
administered in a format and manner that does not require use of those skills, unless the format and manner
in which the test is administered is designed to measure a job-related skill.122 In illustrating this principle, the
EEOC uses the example of a person with dyslexia. According to the EEOC, such a person should be given
the opportunity to take a written test orally, unless the ability to read is a job-related function that the test is
designed to measure; even then the EEOC suggests that a reader be made available, unless the ability to read
unaided is an essential function of the job.123 Similarly, the EEOC suggests providing extra time for people
with visual or learning disabilities or intellectual disabilities, unless a timed test is necessary to measure the
speed crucial to performing an essential function of the job.124 Other types of test-related accommodations
might include permitting people with visual or learning disabilities or with limited use of their hands to record
test answers by computer, dictation, or audio recorder; scheduling breaks for people with mental or other
disabilities who require such breaks; permitting a person with a disability who is easily distracted to take a test
in a separate room; or, if no alternative formats are available, evaluation of the individual’s skills and ability

542
through another means (e.g., a job interview, a work experience, or a trial job demonstration).125 A
comprehensive look at issues involved in testing and disability, at least in the law school testing setting, can be
found in a 2016 consent decree settling litigation over the manner in which the Law School Admission Test
(LSAT) is taken.126

(d) Enforcement

The employment provisions of the ADA are implemented in the same manner as the employment provisions
of the Civil Rights Acts of 1964.127 This means that the EEOC is principally responsible for the enforcement
of Title I’s employment provisions, although litigation is pursued by the Department of Justice (which
maintains a helpful overview of the types of cases commonly pursued).128 The ordinary process for resolving a
complaint under Title I has several steps.129
First, an individual who believes that he or she has been discriminated against files a charge with one of the
EEOC’s regional offices, either in person, by telephone, or by mail. The charge must be filed within 180 days
of the alleged discriminatory act and must contain information identifying the parties, the nature of the
discrimination, the nature of the disability, details of the purported discrimination, and any witnesses. Within
ten days of the charge being brought, the EEOC must notify the party that allegedly has violated the ADA.
Once notification occurs, the EEOC may contact witnesses, seek additional information, and make
preliminary findings regarding the charge. After it completes its investigation, the EEOC issues a “letter of
determination,” which states whether or not it has found “reasonable cause” to believe that discrimination has
occurred. If the EEOC finds no cause, it will take no further action, but will issue a “right to sue” letter to the
charging party; at that point, but not before, the charging party may initiate a lawsuit, typically in federal
court. If the EEOC finds reasonable cause to believe that discrimination has occurred, it will attempt to
resolve the matter through conciliation and negotiation, which it prefers to adversarial litigation—a preference
that has been applauded by commentators.130 If alternative dispute resolution techniques fail, the EEOC may
initiate litigation on its own, or (as when it finds no case exists) issue a “right to sue” letter. The EEOC may
utilize a number of remedies in resolving discrimination cases. These include directing the employer to: hire,
reinstate, or promote the individual; award back pay; fashion a reasonable accommodation; and pay the party’s
attorney fees, costs, and expert witness fees. If intentional discrimination is found, compensatory and punitive
damages of the type typically awarded in a tort case may be awarded as well.131
Although the enforcement mechanisms for the ADA are elaborate, the EEOC’s capacity to use them has
been strained by the high volume of cases it has been called upon to handle and its simultaneous staffing
shortages. In the first year the ADA was in effect, nearly 12,000 complaints were filed with the EEOC—a
figure that far surpassed the number of complaints filed by women and minorities in the year after enactment
of the Civil Rights Act of 1964.132 Claims based on mental disabilities (nearly 10% of the total) represented
the second highest percentage of claims in the first year of the ADA (back impairments were first, with
approximately 18% of the total).133
Since that time, a comprehensive analysis of the more than 250,000 ADA claims filed with the EEOC
between the effective date of the statute (1992) and September 30, 2000 concluded that the EEOC had been
successful in revamping and improving its complaint-handling processes, but that it still lacked sufficient

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resources to provide individual attention to all complainants.134 The study also showed that four impairments
dominated complaints: back impairments (15.5%; n = 23,133); psychiatric impairments (13.1%; n = 19,468);
neurological impairments (10.1%; n = 14,995); and impairments related to extremities (i.e., loss of limbs or
digits or nonparalytic orthopedic impairments of hands, legs, feet, and shoulders) (10.0%; n = 14,883).135
Employees prevailed in only 12.4% of the nearly 150,000 cases closed during this period, although, as the
authors point out, this did not mean that meritorious claims were necessarily denied.136 Analyses also have
consistently suggested that claimants alleging the existence of a mental disability are less likely to be successful
than those claiming physical impairments;137 perhaps this finding reflects skepticism about mental
impairment claims, similar to that encountered in other contexts [see Chapter 12 on compensating mental
injuries].
A 2010 dissertation reached similar conclusions about a more recent examination of all ADA employment
claims between July 26, 1992 and December 31, 2008 (a total of 402,291 claims).138 Of these, 56,846 (or
14.1%) were for mental illnesses, with the major categories being depression (25,375); unknown mental illness
(11,977); anxiety disorder (10,370); bipolar disorder (7,675); and schizophrenia (1,449).139 Claims based on
mental illnesses were found to be meritorious less often (19.83%) than claims not reliant on such illnesses
(23.39%).140
As noted above, individuals can also bring lawsuits under the ADA alleging discrimination. However, the
United States Supreme Court created an important limitation on that right in 2001, in Board of Trustees of
University of Alabama v. Garrett.141 The Court’s ruling in Garrett, based in large part on earlier case law
redefining federalism principles, was that Congress exceeded its authority when it permitted individuals to sue
the states for monetary damages.142 This ruling creates the anomalous result that an individual who works for
a private university (or any private entity) can sue the university for damages under the ADA, while an
individual who works for a state university (or any state government entity) cannot sue that university for
damages on the same facts. At the same time, the Court has made clear that the federal government can still
bring damage claims against state governmental agencies.143
Also worth noting is evidence about the impact of the 2008 amendments. A 2013 analysis examining all
summary judgment decisions by federal courts from January 1, 2010 through April 30, 2013 concluded that
employers were far less likely to obtain summary judgments under the amended ADA, but at the same time
found that plaintiffs were less likely to be found qualified.144 Others agree that given the expansive definition
of disability under the new ADA, the main line of defense had shifted to asserting (often successfully) that
claimants were not “otherwise qualified” for the job because of an inability to perform essential functions.145
These perspectives are a useful reminder that statutory reform may not definitively solve the issues it
addresses.

(e) Forensic Evaluation

The following discussion borrows from William Foote’s work on forensic aspects of the ADA.146 Foote posits
two possible roles for the forensic examiner under the statute. The first is providing consultation to an
employer and/or employee in determining whether an employee has an impairment and is in need of
reasonable accommodation. The second is serving as an expert witness in litigation based on a claim of

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violation of the ADA.
When the evaluator is acting as a consultant, Foote suggests five components to the evaluation. First, the
employee’s work history, including relevant personnel documents, should be reviewed as a way of gaining
insight into the development of the potential disability. Second, the consultant should determine the tasks
that constitute the job; this may require visiting the workplace, meeting with the employee’s supervisor, noting
the environment in which the job occurs (e.g., noise level), and observing the employee’s performance of the
job. Third, the consultant should determine the “parameters of the job,” including the hours that the
employee works, the time of day work occurs, and similar issues. Fourth, the consultant should learn about the
social environment in which the job occurs (the level of collegiality required, the hierarchy of command, etc.).
Finally, the consultant must understand the cognitive skills required by the position, especially the functions
established in the job description.
In outlining the evaluator’s role as an expert in ADA litigation, Foote has several other suggestions. First,
the examiner should consider psychological testing, both to determine the existence and type of impairment,
and to examine issues such as paranoia and malingering (the latter issues are particularly relevant to hostile
work environment claims and claims for reprisal). Second, multiple interviews of the claimant (preferably
structured) should be conducted, in order to observe the claimant’s behavior in various settings; multiple
interviews will also be helpful in assessing claims for damages, particularly emotional damages. Finally, Foote
observes that it will be necessary in cases alleging discrimination to recreate the claimant’s life before and after
the alleged discrimination—not only to assist in determining the validity of the claim, but also to determine
whether discrimination brought a change in life activities as a result. In this respect, the inquiry is similar to
any other evaluation of mental injury [on this issue, see in particular § 12.05].
Regardless of role, the forensic examiner must carefully track the statutory structure and language. As
noted above, four statutory issues dominate: whether the applicant or employee has a mental impairment,
whether the person with an impairment is a qualified individual, whether a proposed accommodation is
reasonable, and whether the person constitutes a direct threat to the health or safety of others. As the
discussion below suggests, the evaluation may raise issues that go beyond the competence of most examiners.

(1) Mental Impairment

As indicated in § 13.02(b)(1), the threshold determination on the question of mental impairment is whether
the individual has “any mental or psychological disorder, such as an intellectual disability (formerly termed
‘mental retardation’), organic brain syndrome, emotional or mental illness, and specific learning disabilities,”
other than certain sexual disorders, conditions resulting from illegal drug use, and “symptoms that are mere
personality traits.” Therefore, in evaluating this issue, the examiner should draw on customary diagnostic and
evaluative tools. Recall, however, that the ADA also protects people who are discriminated against because of
a history of an impairment, or who are perceived as having an impairment. Thus an examiner may be asked to
conduct a retrospective inquiry as well. In such cases, the examiner will need to document the past existence of
an impairment that may not be evident at the time of examination. The clinical task in such a case should
nonetheless be comparatively simple. Foote suggests that cognitive testing will generally be necessary in
determining what skills the worker has, and advises that the inquiry should focus specifically on the deficits

545
cited by the employer or employee. He also recommends taking a full vocational history, with emphasis on
whether the employee has had problems in other work settings stemming from bad temper, intolerance of
supervision, or the like.
As made clear above, even if a person has a “mental impairment,” the impairment does not fall within the
ADA’s coverage unless it substantially limits one or more of the person’s major life activities. However, under
the 2008 amendments and the current EEOC guidelines, most conditions in DSM-5 will probably qualify, if
symptoms of the condition are currently being experienced and cause an inability to carry out everyday
activities that the average person can perform. Recall also that under the amendments, even if treatment has
eliminated the symptoms, an impairment for purposes of the ADA can exist if substantial inability to carry
out a major life activity could be present without the treatment.

(2) Qualified to Perform Essential Functions

If the examiner concludes that a “substantial limitation” on major life activities due to mental impairment
exists or might exist, the next question is whether the person is qualified to perform the job [see § 13.02(b)
(2)]. The person must be qualified at two levels. First, he or she must meet the general qualifications for the
job. Assessing this issue generally involves looking at objective criteria (e.g., educational level and possession
of specified licenses), and therefore is not specifically a question for the examiner. Beyond meeting general
qualifications, however, the person must also be able to perform the “essential functions” of the job. Here a
clinician may be of some help, but only after first understanding what the job’s essential functions are. As
noted above, the examiner should review written materials describing the job (including descriptions in
personnel manuals, advertisements, and other published sources), and should also obtain what is known as a
“job analysis” if the employer has prepared one.
Once the examiner understands the essential functions of the job, he or she should inquire into the
relationship between the mental impairment and the person’s ability to perform those functions. For example,
suppose that a woman with depression is normally competent at her job as a therapist in a clinic, but
occasionally misses work because of bouts with depression and is obsessed with thoughts of suicide.
Furthermore, the employer fears that her patients will be traumatized if she does commit suicide, or expresses
her suicidal ideation to them. Do these facts indicate that the woman is unable to perform an “essential
function” of her job as therapist?147 Although the answer to this question is ultimately legal, the clinician may
be able to give the decisionmaker useful information on the extent to which the disability undermines the
person’s ability to relate to patients, establish long-term relationships with them, and carry out other functions
associated with being a therapist.

(3) Reasonable Accommodation

If the person can perform the essential function of the job but is not considered qualified for the job as
presently defined, the next question is whether the employer can create a reasonable accommodation that
permits the person to perform essential job functions, despite his or her impairment. In the example provided
above, the inquiry would be whether there is an accommodation that would enable the therapist, despite

546
suffering from depression and anxiety, to perform her job. Such an accommodation might include a change in
job schedule, or ultimately reassignment to a diagnostic position that does not involve prolonged contact with
patients.
As with the qualification issue, it is not the role of the forensic examiner to determine whether a proposed
accommodation is reasonable or whether it imposes an undue hardship on the employer (thereby making the
accommodation unnecessary). This is a legal question that lies beyond the responsibility of the examiner.
However, the examiner may provide useful information regarding the likely impact of the accommodation
upon the person’s ability to perform the essential functions of the job.
If the clinician is addressing the accommodation issue as a consultant to the employee and comes to the
conclusion, along with the employee, that a new or restructured job would make sense, the clinician may want
to contact the employer to see if such a job exists within the organization and, if so, whether there is any
possibility it could be made available to the employee. Although the employer is under no obligation to
participate in such a meeting, we noted above the tendency of courts to take favorable views of employers who
have engaged in an “interactive process” regarding accommodation. Finally, Foote proposes that if employer
and employee reach agreement regarding an accommodation, the agreement should be memorialized in a
written plan for implementation. The clinician may also be able to provide accounts of research on the efficacy
of various types of accommodations.148

(4) Direct Threat

As indicated in § 13.02(b)(4), the employee falls outside the protection of the ADA if he or she constitutes a
“direct threat”—a concept that is rigidly structured by law and includes threats both to others and to self. Two
points are important to note with respect to assessment of this issue.
First, the assessment must be based on “the most current medical knowledge and/or the best available
objective evidence.” Although the direct-threat provision was written primarily with medical conditions
(specifically HIV/AIDS) in mind, one can also read the phrase to require familiarity with the current state of
knowledge on risk assessment [see §§ 9.09(c), 10.08(d)]. In addition, the language concerning the “best
available objective evidence” suggests that the examiner must look for corroborating evidence of dangerousness
from sources other than the person being evaluated.
Second, the regulatory structure requires that four factors be considered in assessing risk under the ADA:
the duration of the risk, its severity, its likelihood, and the imminence of the harm. These factors are
comparable to the examination of dangerousness in the context of civil commitment [see § 10.08(d)]. Recall
also that the regulations prohibit employment decisionmaking based on speculative or remote threats. In the
hypothetical case involving the therapist presented above, the employer’s fear of harm to patients is an issue
that must be addressed by the legal decisionmaker, who might be aided by a clinical assessment of the
likelihood that the woman will commit suicide or express the idea of suicide to her patients, and of the harm
either event may cause her patients.149

13.03. FAIR HOUSING AMENDMENTS ACT

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Good housing is scarce for people with disabilities, especially when, as is so often the case, they are poor. A
2014 report found that in 162 housing markets spanning 33 states, rental prices for one-bedroom apartments
exceeded 100% of monthly Social Security income, with rents for “modest” units in 15 of those jurisdictions
exceeding 150%.150 In many places, housing for people with low incomes has disappeared for a variety of
reasons, including gentrification of old housing stock and set-asides for certain populations (e.g., elderly
persons).151 But discrimination also helps explain the housing woes of people with mental disabilities. The
FHAA152 was enacted to address this last problem.
The FHAA prohibits discrimination in the sale or rental of housing on the basis of “handicap” or familial
status. It is similar in structure to the ADA. To avoid redundancy, the reader is referred to relevant sections of
the ADA discussion for more detailed discussion of concepts that appear in both statutes.

(a) Purposes of the Act

The FHAA of 1988 amended the Fair Housing Act of 1968 in two ways. First, Congress intended to
strengthen enforcement of the 1968 Act, which had prohibited discrimination in housing on the basis of race,
color, religion, or national origin.153 Many observers and members of Congress believed that the original Fair
Housing Act did not provide adequate protection against housing discrimination. As one commentator noted,
under the 1968 Act, the Department of Housing and Urban Development (HUD) received fewer than 5,000
complaints each year—a figure estimated to represent fewer than 1% of housing discrimination incidents
occurring annually.154 To correct this problem, the FHAA grants HUD additional enforcement powers.
The second change wrought by the FHAA, of more importance here, was an extension of the 1968 Act’s
prohibition on housing discrimination to situations involving “handicaps” and familial status, in addition to
those involving race, color, religion, or national origin.155 With respect to people with mental disabilities in
particular, Congress intended to achieve two specific goals. The first was to enable people with “handicaps” to
obtain housing in the communities of their choice. The second was to use access to housing as a vehicle for
integrating people with disabilities into the mainstream of American life.156
These goals stemmed from the belief that discrimination was an important barrier to housing for people
with mental disabilities,157 and that a lack of housing was not only problematic per se,158 but also increased
the risk of rehospitalization and further mental disability.159 Congress was also undoubtedly influenced by the
United States Supreme Court’s 1985 decision in City of Cleburne v. Cleburne Living Center,160 which found
that the defendant city violated the equal protection clause of the Constitution when it required a group home
for people with intellectual disabilities to obtain a special permit that private clubs and fraternities, apartment
hotels, and homes for elderly persons did not need to obtain. Cleburne squarely rejected housing decisions
based on “an irrational prejudice against the mentally retarded,” stating that “mere negative attitudes, or fear,
unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for
treating a home for the mentally retarded differently from apartment houses, multiple dwellings and the like.”
This language could also easily be applied to discriminatory actions against people with mental disabilities
other than intellectual disabilities.
The FHAA makes it illegal

to discriminate in the sale or rental [of], or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of:

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 (A) that buyer or renter; (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C)
any person associated with that buyer or renter.161

Note that the FHAA bars not only discrimination based on the disability of an individual buyer or renter, but
also discrimination based on an association with an individual with a disability.162 For example, assume that a
landlord refuses to rent to an organization providing housing for people with disabilities. Although technically
the landlord’s refusal may have been conveyed to a person without a disability (the organizational
representative), the FHAA applies because the refusal is motivated by a desire to avoid renting to individuals
with disabilities who are “associated” with the organizational representative.163

(b) Coverage of the Act

As noted above, FHAA has a structure similar to that of the ADA. To show discrimination under the
FHAA, a claimant must prove (1) the existence of a disability within the meaning of the statute, which (2)
does not disqualify the person for access to the housing in question, at least when (3) reasonable
accommodation can be made, and (4) the person does not pose a direct threat to others.
Although the FHAA uses the word “handicap” instead of “disability” (Congress abandoned “handicap”
when it enacted the ADA two years later164), the FHAA’s definition of “handicap” is virtually identical to
that used by the ADA in defining “disability.” Under the FHAA, a “handicap” is either (1) a physical or
mental impairment that substantially limits one or more of such person’s major life activities, (2) a record of
having such an impairment, or (3) being regarded as having such an impairment.165 As with the ADA,
“mental impairment” includes most major mental disorders, but excludes the “current, illegal use of or
addiction to a controlled substance” and conditions associated with sexual orientation.166
Similarly, just as the ADA requires that a person with a disability be “otherwise qualified” for the job, the
FHAA creates a “qualified-for-tenancy” requirement. For example, in announcing the rules implementing the
FHAA, HUD regulations observe that although alcoholism is a handicap within the FHAA, a landlord is not
obligated to make a dwelling available to an individual who suffers from this problem unless the individual can
follow rules of the tenancy:

[T]he fact that alcoholism may be a handicap does not mean that housing providers must ignore this condition in determining whether an
applicant for housing is qualified. On the contrary, a housing provider may hold an alcoholic to the same standard of performance and
behavior (e.g., tenant selection criteria) to which it holds others. . . . In other words, while an alcoholic may not be rejected by a housing
provider because of his or her alcoholism, the behavioral manifestations of the condition may be taken into consideration in determining
whether or not he or she is qualified.167

As the ADA does, the FHAA also circumscribes the questions that may be asked of applicants to
determine if they are “qualified” for the housing in question; as a general rule, for instance, a landlord (or
property seller) may not ask whether a potential tenant has a handicap or disability. However, the landlord
may ask whether (1) the applicant can meet the conditions of tenancy (i.e., abide by the rules imposed on
tenants); (2) the tenant is qualified for housing that carries a priority for, or is exclusively designed for, people
with a handicap; and (3) the applicant is currently taking illegal drugs, is addicted to a controlled substance, or
has been convicted of the illegal manufacture or sale of a controlled substance.168
The FHAA also includes a reasonable-accommodation requirement similar to that found in the ADA. For

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instance, the FHAA labels as discriminatory a refusal to permit, at the expense of the person with a handicap,
reasonable modifications of the premises if the modifications are necessary to afford the person full enjoyment
of the premises.169 It is also discriminatory to refuse to make reasonable accommodation in rules, policies,
practices, or services when the accommodation may be necessary to enable the person to enjoy the premises
fully.170 In addition, the law requires compliance with several statutory provisions requiring that multifamily
dwellings provide access to people with physical handicaps.171
Finally, and again similarly to the ADA, the FHAA exempts from its coverage “an individual whose
tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would
result in substantial physical damage to the property of others.”172 In justifying the eventual regulations
implementing this provision of the statute, HUD observed that it was the intent of Congress

to require that the landlord or property owner establish a nexus between the fact of the particular individual’s tenancy and the asserted direct
threat. Any claim that an individual’s tenancy poses a direct threat and substantial risk of harm must be established on the basis of objective
evidence, e.g., a history of overt acts or current conduct. Generalized assumptions, subjective fears, and speculation are insufficient to prove
the requisite direct threat . . . the landlord may not infer that a history of physical or mental illness or disability, or treatment for such
illnesses or disabilities, constitutes proof that an applicant will be unable to fulfill his or her tenancy obligations.173

Congressional history makes the same point, noting that “there must be objective evidence from the person’s
prior behavior that the person has committed overt acts which caused harm or which directly threatened
harm.”174 This insistence on objective evidence of dangerousness resonates with the analogous ADA
regulations [see § 13.02(b)(4)].

(c) Judicial Interpretation

The Bazelon Center for Mental Health Law has periodically updated all reported cases addressing claims
under the FHAA.175 According to the Center, as well as an earlier review by Petrila,176 the law through the
early 2000s had become a fairly effective vehicle for people with mental disabilities, particularly in combating
certain types of barriers to housing access. More recently, advocates have tried to use the FHAA as a lever to
enable people with mental disabilities to move from group homes to more “normal” housing. The success of
such claims has been limited, though at least one state has agreed to broad relief in a settlement.177 Examples
of more typical cases can be divided into several categories.

(1) Zoning and Building Requirements

The FHAA was not intended to prohibit typical zoning ordinances that may affect group homes or other
accommodations for those with mental disabilities. For instance, the FHAA states that “nothing in this title
limits the applicability of any reasonable local, State, or Federal restrictions regarding the maximum number
of occupants permitted to occupy a dwelling.”178 At the same time, Congress did intend to prohibit the
application of special restrictive covenants and conditional or special-use permits that have the effect of
limiting the ability of individuals with disabilities to live in the residence and community of their choice.179
Thus, in City of Edmonds v. Oxford House,180 the United States Supreme Court held that a city ordinance
limiting the number of unrelated people in a single-family dwelling to 5 was not necessarily exempt from

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challenge under the FHAA by a group home that housed 10–12 persons recovering from addiction. Although
the Court avoided specifically deciding whether the FHAA prevented the city from prohibiting operation of
the Oxford House, it indicated that on remand, the group home should prevail if the city could not point to
“reasonable” health and safety considerations that explained the ordinance’s distinction between such a home
and a dwelling housing single families larger than five people.
Another type of municipal ordinance that might be challenged under the FHAA is one creating safety
requirements for housing used by people with mental disabilities. Even if they are promulgated in good faith,
such requirements are discriminatory if they are not based on empirically derived findings that the individuals
in question require the equipment. For example, in Marbrunak, Inc. v. City of Stow,181 the city advised
operators of a home for people with mental disabilities that a permit would not be issued unless the home was
equipped with special sprinkling systems and with special doors to make access and egress easier. The provider
challenged the requirements because they were not imposed on the operators of group homes for other types
of clients, and also argued that the extra cost associated with the requirements made opening the home more
difficult. The court agreed, finding the requirements discriminatory.182 In addition, courts have routinely
struck down state and local laws requiring group homes and other congregate living facilities for people with
disabilities to be a certain distance from each other.183

(2) Notice and Hearing Requirements

Some states and municipalities require public notice and an opportunity for a public hearing prior to the
issuance of a permit for group homes for those with mental disabilities. These laws are subject to attack under
the FHAA because such requirements typically are not imposed on other individuals or groups as a condition
of obtaining a housing permit. Thus, for example, in Potomac Group Home Corporation v. Montgomery
County,184 a federal district court declared illegal a notice-and-hearing requirement prior to obtaining a
permit for a home for four elderly individuals with disabilities, observing that “this requirement on its face
creates an explicit classification based upon disability and is not supported by any justification of the County. .
. . [It] is not imposed upon any family residential unit nor on any other properly zoned residential unit in the
County besides group homes for the disabled.”185

(3) Reasonable Accommodation

The reasonable-accommodation requirement of the FHAA has supported challenges both to tenancy rules
and to restrictions on the siting of residences for people with disabilities. In Crossroads Apartments Associates
v. Lebo,186 as in Case Study 13.1, the landlord sought to evict a long-term tenant soon after he bought a pet
(in this case, a cat), on the ground that he was in violation of the landlord’s no-pet policy. The court ruled that
issues of fact had to be litigated regarding whether the tenant had a disability and whether the cat was so
necessary to his continued tenancy that the landlord would have to waive the no-pet rule as a reasonable
accommodation. Eventually, the case was settled; the tenant agreed to move out, because the tenant’s expert
mental health witnesses could testify only that the cat was therapeutically helpful, not that it was necessary to
his continued tenancy (as suggested by the fact that he had lived in the apartments for years without a pet).

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However, in a similar case, the defendant landlord was denied summary judgment on a claim that the
plaintiff’s “companion animal” was an unreasonable accommodation;187 this is an example of a “growing
consensus” that emotional support animals are available as a reasonable accommodation under the FHAA.188
These cases demonstrate how the FHAA can convert an otherwise routine eviction into a “mental health”
issue, complete with affidavits from experts for both sides concerning the presence of disability and how best
to ameliorate its consequences.
As noted above, courts have routinely struck down statutes and ordinances creating distance requirements
between congregate living residences, on the grounds that they are discriminatory. Alternatively, such
ordinances have been interpreted to violate the reasonable-accommodation requirement. For example, in
United States v. Village of Marshall,189 a federal court ruled that as a reasonable accommodation, the village
had to permit two such homes within 1,600 feet from one another, despite a state law requiring them to be at
least 2,500 feet apart. The court found that waiving the space requirement would not have a significant
adverse effect on any legitimate goals of the village.190

(4) Direct Threat

Perhaps the most troublesome issue under the FHAA involves the tension between the “direct-threat”
exemption from the statute and landlords’ efforts to accommodate the desires of other tenants to live free from
disruption, in particular since the latter efforts can sometimes hide discriminatory intent or biased,
stereotypical views of people with disabilities. For example, in Baxter v. City of Belleville,191 a federal court
overturned a denial of a permit to a provider who wished to open a home for people with AIDS, despite
arguments that the proposed residents of the home posed a danger to the community. The court observed that
“the scientific and medical authority is that HIV-positive persons pose no risk of transmission to the
community at large.”192 A similar result was reached in a case striking down a New Jersey law that prohibited
people who had been found not guilty by reason of insanity from living in community residences; again, the
court focused on the negative stereotype that the statute endorsed.193
Other cases pose the more traditional forensic question of whether a particular individual is dangerous
enough to evict from public housing. In 2004, the Department of Justice and HUD issued a joint statement
providing guidance on this issue, including two examples illustrating application of the direct-threat rule.194
In the first example, an applicant for housing lists as a prior residence a place that the manager knows is a
group home for persons recovering from alcoholism. He rejects her application on that basis. This is unlawful
because it relies on a “generalized stereotype related to a disability” rather than an individualized assessment.
In the second illustration, a tenant is arrested for threatening a neighbor with a baseball bat; he has threatened
others as well. According to the statement, the manager may evict this tenant in the absence of any evidence
that the tenant will agree to take medication and other steps to address his tendency toward violence.
Court decisions have demonstrated a nuanced approach to the issue. In Roe v. Sugar River Associates,195
the plaintiff brought suit under the FHAA to stop his eviction. The landlord responded by alleging that the
plaintiff had threatened an 82-year-old resident of the complex with physical harm on several occasions, using
obscene and threatening language. Another tenant alleged in a supporting affidavit that as a result of
witnessing these confrontations, she had become very fearful of the plaintiff and sick to her stomach. The

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plaintiff claimed that his behavior was the result of an unspecified mental disability, and that the defendant
was obligated to create an (also unspecified) accommodation that would ameliorate the potential behavioral
consequences of his disability. The court denied the landlord’s motion for summary judgment, ruling that
disputed issues of fact existed regarding whether the plaintiff had a protected disability, and that the landlord
had to demonstrate that no reasonable accommodation could acceptably minimize or eliminate the risk posed
by the plaintiff to other tenants. In reaching its decision, the court cited Congressional committee language
noting that although

a dwelling need not be made available to an individual whose tenancy can be shown to constitute a direct threat and a significant risk of harm
to the health or safety of others . . . [i]f a reasonable accommodation could eliminate the risk, entities covered under this Act are required to
engage in such accommodation.

As a result, the landlord could not summarily evict the tenant without factual inquiry into these issues.
A few other cases have similarly required specific proof of recent violent behavior in order to meet the
direct-threat threshold.196 However, other courts display less willingness to engage in protracted inquiries like
the one mandated by the Roe decision, particularly if the suggested accommodations involve significant
burdens on the other residents.197 Some courts have compromised, by requiring landlords to delay eviction for
at least a short period if the threatening behavior is amenable to treatment.198
An additional source of tension on this issue comes from the potential clash between a tenant’s right to
privacy and the possible obligation to warn other tenants of the potential threat posed by the tenant with a
disability. Although no court has yet addressed this issue, one legal analysis suggests that the tenant’s right to
privacy should hold sway, and that landlords should not be saddled with a duty to warn other tenants about a
perceived threat.199

(5) Poverty/Special Mental Health Housing

There are at least two other types of possible housing discrimination claims worth noting. First, some
plaintiffs have claimed that the inadequacies of federal subsidies for housing for people with disabilities violate
the FHAA, because these inadequacies have a discriminatory impact. To date, the courts have uniformly
rejected this argument—in part because of a view that Congress has made participation in federally subsidized
housing programs voluntary for landlords, and in part because, in the courts’ view, the FHAA was not meant
to elevate the rights of the poor with disabilities over the rights of other poverty-stricken individuals.200
Second, a claim might be made that the ADA is violated when the receipt of housing is conditioned on
adherence to treatment or some other requirement. In the first nationwide study of lifetime self-reports of
various experiences with coercion, Monahan and colleagues found that 23–40% of the individuals surveyed at
five sites reported that they had experienced some form of coercion or leverage in connection with housing.201
Allen, among others, has argued that such conditions violate the ADA and subvert an individual’s tenancy
rights.202 However, to date, this challenge has not been addressed by the courts.

(d) Enforcement

As noted at the beginning of this section, Congress passed the FHAA in part to improve enforcement of the

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original Fair Housing Act. Primary responsibility for enforcement of these laws rests with HUD. The
enforcement provisions enacted in 1988 contain a mixture of administrative and judicial remedies for
violations of the statute. A person claiming discrimination must file a complaint with the Secretary of HUD
within a year of the alleged discrimination.203 Upon receiving a complaint, HUD is to attempt to mediate the
dispute, in a fashion similar to the conciliatory role the EEOC plays after the filing of a complaint under the
ADA. If HUD finds reasonable cause that discrimination has occurred, it may charge the party engaging in
the discriminatory practice and hold an administrative hearing. Available relief includes issuance of an
injunction and financial penalties.
A person may also file a complaint in federal or state court within two years of the alleged discriminatory
practice. However, if HUD is already conducting an administrative proceeding, the court must stay its
proceedings (i.e., hold the case in abeyance). HUD also has the right to go to court on its own, as does the
United States Attorney General.

(e) Role of the Forensic Examiner

As the previous discussion suggests, at least three types of issues raised by the FHAA may result in the
involvement of mental health professionals. First are challenges to special physical requirements for housing
for people with mental disabilities. In a case contesting such requirements, a clinician might be able to provide
useful information about (1) the existence of a disability; (2) its impact on functioning in the areas in question
(e.g., in a case like Marbrunak, noted above, whether the disability interferes with the person’s ability to
become aware of dangerous conditions and to exit the residence in the event of danger); and (3) whether the
special requirements are necessary to enable the person to protect him- or herself. To address the third issue,
the examiner will need to learn as much as possible about the characteristics of the residence in which the
person or persons will live, and will need to explain whether the disability (if one exists) substantially limits the
person’s ability to live in the residence. In a case such as Oxford House, the evaluator may be able to provide
information about the effect on health and safety of housing more than five people with mental disabilities in
the same dwelling.
The opinion of a mental health professional may also be sought regarding the appropriateness of a
reasonable accommodation in a particular case. Recall that in Lebo, for example, mental health professionals
were asked by both parties to assess whether having a pet was therapeutically necessary for the tenant to
continue to live successfully within his apartment complex. In such a case, the examiner is not to determine
whether an accommodation (in this case, waiving the no-pet rule) is appropriate, because that is the ultimate
legal issue. Rather, the examiner should (1) provide information on whether the person has a disability within
the meaning of the statute; (2) discuss the effect of that disability on the capacity of the person to live
according to the rules of tenancy; and (3) determine, if possible, whether the accommodation proposed is
necessary to ameliorate the behavioral consequences that might ensue without the accommodation. Given the
similar nature of the inquiry under the FHAA and the ADA, Foote’s suggestions concerning ADA
evaluations, discussed in § 13.02(e), will prove helpful in this context as well.
As the Roe case suggests, a third question that might be raised under the FHAA is the more traditional
issue of dangerousness. Under the applicable law, the direct-threat criterion is only met on production of

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objective evidence, based on previous behavior. The discussion of this issue in connection with the ADA is
relevant here as well [see § 13.02(e)(4)].

13.04. SOCIAL SECURITY LAWS

Since the 1930s, the federal government has funded “income maintenance” programs for persons who,
because of physical or mental disabilities, are unable to engage in substantial gainful employment. In contrast
to Title I of the ADA, which protects those who are able to work, these programs are meant to provide
financial aid for people whose mental disability prevents them from functioning at a self-sustaining level. The
most significant modern programs in this regard are the Social Security Disability Insurance (SSDI)
program204 and the Supplemental Security Income (SSI) program.205 Since 1972, these programs have been
administered solely by the federal government.206 Together, they constitute the bulk of the federal
government’s effort to aid those who lack the capacity to work.
The Social Security Disability Act is found in Title II of the Social Security Act. SSDI functions as an
insurance program, providing benefits for disabled people who have worked and paid into the Social Security
Trust Fund in 20 of the 40 calendar quarters prior to the beginning of a disability.207 In contrast, the SSI
program, found at Title XVI of the Social Security Act, is available to anyone meeting the eligibility criteria,
regardless of work history or payment of Social Security taxes;208 thus it is need-based rather than insurance-
based. Benefits may be sought under either SSI or SSDI, or both; if the latter, applications are processed
simultaneously.209
Although the two programs differ in other ways,210 the discussion below does not differentiate between the
two, because their eligibility criteria are identical apart from the distinction noted above. This section begins
with a detailed examination of these criteria. The regulations setting them out are complex and change with
some frequency. At the same time, they are founded on certain core principles that can profitably be discussed
here. After looking at these principles, we examine the process by which disability determinations are made,
and we conclude with suggestions concerning clinical involvement in this process.

(a) Eligibility Criteria

This discussion of eligibility criteria first addresses criteria for adults and then discusses those for children. For
many years, the criteria for the latter differed significantly from those applicable to adults. A Supreme Court
ruling forced the adult and juvenile criteria into greater alignment, but as a result of statutory changes in 1996,
the differences continue to be significant.

(1) Adults

In the late 1970s and early 1980s, the disability criteria for adults were the focus of much controversy, because
of executive branch efforts to reduce the costs of Social Security through narrow interpretation of statutory
coverage. In 1983, the Congressional watchdog agency, then known as the General Accounting Office
(GAO), characterized the Social Security Administration (SSA) as “overly restrictive” in making disability

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determinations.211 Yet efforts to eliminate people with disability from the program continued until a series of
lawsuits culminated in a 1986 ruling by the United States Supreme Court that the SSA had applied eligibility
criteria inappropriately.212 Congress’s first attempt at responding to this decision213 led to a significant
expansion of the Social Security rolls.214 Within a decade, however, Congress made a number of changes that
eliminated benefits eligibility for some groups (principally individuals whose primary diagnosis is substance
abuse)215 and created incentives for individuals who rely primarily on Social Security benefits to return to the
workforce.216 Despite all these changes, the primary disability of between one-quarter and one-half of the
millions of individuals who receive Social Security benefits is a psychiatric disorder.217
The core question in determining eligibility for benefits under these statutes is whether an individual has a
“disability.” For an adult, the statute defines “disability” as an inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less than 12
months.”218 In addition, the impairment must be

of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for
work.219

As noted above, if alcoholism or drug addiction is a material contributing factor to the disability, then the
person is not eligible for benefits.
In interpreting these statutory requirements, the SSA has developed a five-step process, summarized in
Figure 13.1.220 First, the SSA determines whether the individual is ineligible because he or she is engaged in
“substantial gainful activity,” which it defines as work that involves significant and productive physical or
mental duties and is carried out for pay or profit.221 According to the regulations, the SSA does not consider
activities such as taking care of oneself, household tasks, hobbies, therapy, school attendance, club activities, or
social programs to be substantial gainful activity.222

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 FIGURE 13.1. Logic tree: Competence to work.

Second, if the individual is not gainfully employed, the SSA determines whether he or she has a “severe”
impairment—that is, one resulting in a significant limitation on the person’s physical or mental abilities to
perform basic work activities. The regulations define basic work activities to include physical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing,
hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment;
responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a
routine work setting.223
In evaluating the degree of functional limitation from mental impairment, the SSA looks at four areas.
Until recently, these areas were restriction of activities of daily living; difficulties in maintaining social
functioning; deficiencies of concentration, persistence, or pace; and episodes of deterioration or
decompensation. As of January 2017, the areas have been changed slightly to focus on restrictions on the
ability to understand, remember, or apply information; deficiencies in interacting with others; deficiencies in

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maintaining concentration, persistence, and pace; and ability to adapt or to manage oneself.224 The SSA also
examines “all relevant and available clinical signs and laboratory findings, the effects of . . . symptoms, and
how . . . functioning may be affected by factors including, but not limited to, chronic mental disorders,
structured settings, medication, and other treatment.”225 Recall that the assessment of severity also requires a
determination as to whether the impairment has or will last for a continuous period of at least 12 months.
However, the fact that a “severe” impairment has been in remission occasionally during the 12-month period
will not automatically disqualify the individual for eligibility.226
Third, if the person’s impairment is severe, the SSA determines whether the impairment meets or equals a
“listed” impairment (i.e., an impairment listed in the regulations); if so, the person is eligible for benefits on
“medical grounds alone.”227 The “listed” mental impairments are found in an appendix to the federal
regulations, and were recently revised to correspond to changes in DSM-5.228 They include neurocognitive
disorders (previously organic mental disorders); schizophrenia spectrum and other psychotic disorders;
depressive, bipolar, and related disorders (previously affective disorders); intellectual disorder; anxiety-related
and obsessive–compulsive disorders; somatic symptom and related disorders; personality and impulse control
disorders; autism spectrum disorder; and (new with the January 2017 revisions) neurodevelopmental, eating,
and trauma- and stressor-related disorders. Substance addiction disorders, at one time included in the list, are
now not listed.229 To provide the reader with some sense of the SSA’s definition of these disorders, Table
13.2 provides the first three mental disorders from the listing. Again, a finding that a person has a listed
impairment ends the inquiry, resulting in a judgment that the person is disabled within the meaning of the
statute.

TABLE 13.2. Mental Impairments Resulting in Disability Finding on “Medical Grounds Alone”

12.02 Neurocognitive disorders

a. These disorders are characterized by a clinically significant decline in cognitive functioning. Symptoms and signs may include, but are not
limited to, disturbances in memory, executive functioning (that is, higher-level cognitive processes; for example, regulating attention,
planning, inhibiting responses, decision-making), visual–spatial functioning, language and speech, perception, insight, judgment, and
insensitivity to social standards.
b. Examples of disorders that we evaluate in this category include major neurocognitive disorder; dementia of the Alzheimer type; vascular
dementia; dementia due to a medical condition such as a metabolic disease (for example, late-onset Tay–Sachs disease), human
immunodeficiency virus infection, vascular malformation, progressive brain tumor, neurological disease (for example, multiple sclerosis,
parkinsonian syndrome, Huntington disease), or traumatic brain injury; or substance-induced cognitive disorder associated with drugs of
abuse, medications, or toxins.

c. This category does not include the mental disorders that we evaluate under intellectual disorder, autism spectrum disorder and
neurodevelopmental disorders.
This diagnosis is satisfied by A and B, or A and C below:
A. Medical documentation of a significant cognitive decline from a prior level of functioning in one or more of the cognitive areas:
1. Complex attention;
2. Executive function;

3. Learning and memory;

4. Language;
5. Perceptual–motor; or

6. Social cognition.
AND

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 B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
1. Understand, remember, or apply information.
2. Interact with others.
3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
OR
C. Your mental disorder in this listing category is “serious and persistent”; that is, you have a medically documented history of the existence of
the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes
the symptoms and signs of your mental disorder; and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already
part of your daily life.

12.03 Schizophrenia spectrum and other psychotic disorders

a. These disorders are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a
clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-
directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of
mood, odd beliefs and mannerisms, and paranoia.
b. Examples of disorders that we evaluate in this category include schizophrenia, schizoaffective disorder, delusional disorder, and psychotic
disorder due to another medical condition.
This diagnosis is satisfied by A and B, or A and C below:
A. Medical documentation of one or more of the following:
1. Delusions or hallucinations;
2. Disorganized thinking (speech); or
3. Grossly disorganized behavior or catatonia.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:

1. Understand, remember, or apply information.

2. Interact with others.

3. Concentrate, persist, or maintain pace.

4. Adapt or manage oneself.

OR
C. Your mental disorder in this listing category is “serious and persistent”; that is, you have a medically documented history of the existence of
the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes
the symptoms and signs of your mental disorder; and

2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already
part of your daily life.

12.04 Depressive, bipolar, and related disorders

a. These disorders are characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all
activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of
hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in
energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and
social withdrawal.
b. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder,
persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition.
This diagnosis is satisfied by A and B, or A and C below:
A. Medical documentation of the requirements of paragraph 1 or 2:

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 1. Depressive disorder, characterized by five or more of the following:
a. Depressed mood;
b. Diminished interest in almost all activities;
c. Appetite disturbance with change in weight;
d. Sleep disturbance;
e. Observable psychomotor agitation or retardation;
f. Decreased energy;
g. Feelings of guilt or worthlessness;
h. Difficulty concentrating or thinking; or
i. Thoughts of death or suicide.

2. Bipolar disorder, characterized by three or more of the following:

a. Pressured speech;
b. Flight of ideas;
c. Inflated self-esteem;
d. Decreased need for sleep;
e. Distractibility;
f. Involvement in activities that have a high probability of painful consequences that are not recognized; or
g. Increase in goal-directed activity or psychomotor agitation.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:

1. Understand, remember, or apply information.

2. Interact with others.

3. Concentrate, persist, or maintain pace.
4. Adapt or manage oneself.
OR
C. Your mental disorder in this listing category is “serious and persistent”; that is, you have a medically documented history of the existence of
the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes
the symptoms and signs of your mental disorder; and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already
part of your daily life.

Note. Taken from 20 C.F.R. § 404, subpt. P., app. I, ch. 12.00 (2016).

Fourth, if a person not currently engaged in substantial gainful activity is found to have a severe
impairment but not one that is listed (or its equivalent), the SSA makes an individualized determination of
whether the claimant has a nonlisted impairment that prevents him or her from doing any work that the
claimant has done in the past.230 If the SSA finds that the claimant can perform such work despite his or her
impairment, the claimant will not be considered disabled. This is true even if the claimant’s job no longer
exists in significant numbers in the national economy. In 2003, the United States Supreme Court upheld SSA
regulations providing that the SSA is permitted to make a determination of nondisability in this situation.231
Fifth, if the individual is unable to do any work done in the past (as might be the case with Fred Phantom
in Case Study 13.1), the SSA performs an analysis of the person’s “residual functional capacity” (RFC),
together with his or her age, education, and past work experience, to determine whether the person can do any
other job that exists in significant numbers in the national economy;232 if so, the individual is still denied
benefits. RFC is defined as “what [the claimant] can still do despite . . . limitations.”233 To help determine
whether RFC exists, the SSA has developed Medical Vocation Guidelines (focused on age, education, skill,

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and work experience, among other factors) that guide its determination as to whether the person can engage
in substantial gainful employment.234 Three points should be emphasized about the SSA’s analytic approach.
First, the SSA requires evidence of functional impairment, not just clinical evidence of diagnosis. For
example, note from Table 13.2 that a claimant who seeks to show he or she is suffering from schizophrenia
(12.03) must prove not only that relevant symptomatology under part A is present (e.g., delusions or
hallucinations), but also that the symptoms resulted in at least two types of dysfunction from part B (as of
2017, the dysfunction must be either “extreme,” meaning an inability to function “independently,
appropriately, effectively and on a sustained basis,” or “marked,” meaning that the ability to function in these
ways is “seriously limited”). Alternatively, eligibility is established if the claimant can meet the requirements of
part C—namely, a “medically documented history” of the disorder for at least two years, and evidence of
ongoing treatment and of difficulty in adjusting to new environments.
Second, external evidence must be available to support a finding of impairment; according to the statute,
the impairment must result “from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.”235 Simple statements
from an individual that he or she suffers from depression, for example, are insufficient to establish eligibility
without corroborating evidence. However, in this regard the courts have been sensitive to the relative
imprecision of psychiatric as opposed to physical diagnosis. One court noted:

Courts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as a medical
impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in
the field of medicine. . . . A strict reading of the statutory requirement that an impairment be “demonstrable by acceptable clinical and
laboratory diagnostic techniques” is inappropriate in the context of mental illness. Rather, when mental illness is the basis of a disability
claim, clinical and laboratory data may consist of the diagnoses and observations of professionals trained in the field of psychopathology. The
report of a psychologist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of
substantial documentation, unless there are other reasons to question the diagnostic technique.236

At the same time, examiners should be aware of the SSA’s extensive guidelines, discussed further below,
concerning the sources of information that evaluators should use.
Third, the criteria pertinent to a disability determination under the Social Security Act are similar to those
that apply under the ADA [see § 13.02(b)]. Both inquiries require a showing that mental impairment will
significantly affect a major life activity. The difference, presumably, is that a person so disabled as to qualify
for benefits under Social Security may be too disabled to perform the essential functions of a job as required by
the ADA. In fact, some courts at one time applied a conclusive presumption that a person found disabled
under the Social Security laws cannot bring an ADA claim asserting the ability to perform essential job
functions. However, the United States Supreme Court has ruled that Social Security and ADA claims can
coexist in at least some circumstances, and that automatic rejection of ADA claims brought by people
receiving Social Security benefits is not permissible.237

(2) Children

The statutory and regulatory structure for determining whether a child has a disability has been changed
several times in recent years.238 Prior to 1990, the SSA required only the first three steps of the five-stage

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sequential process used for adults. Advocates argued that this truncated procedure resulted in the
inappropriate denial of benefits to children, and pointed out that the statutory definition of disability did not
appreciably differentiate between adults and children; it merely stated that “in the case of a child under the age
of 18,” eligibility depended on the existence of “any medically determinable physical or mental impairment of
comparable severity” to that required for adult eligibility.239 The SSA, on the other hand, contended that the
fourth and fifth steps of the adult process were a vocational assessment, not applicable to children.
These conflicting positions were eventually reviewed by the United States Supreme Court in Sullivan v.
Zebley,240 decided in 1990. The Court held that the SSA regulations for children were illegal, because they
applied different and more restrictive criteria than the regulations for adults. In reaching its decision, the
Court cited a Congressional study showing that 25% of the adults found to be eligible for benefits were found
eligible during the last two steps of the five-stage process.241 As a result, the Court concluded, the regulations
denied to children a process that should have made at least some of them eligible for benefits.242 The Court
also rejected the SSA’s argument that it could not perform a vocational assessment with children, noting that
the additional steps used with adults involved a functional as well as a vocational assessment. In the Court’s
words,

an inquiry into the impact of an impairment on the normal daily activities of a child of the claimant’s age—speaking, walking, washing,
dressing, and feeding oneself, going to school, playing, etc.—is, in our view, no more amorphous or unmanageable than an inquiry into the
impact of an adult’s impairment on an ability to perform “any other kind of substantial gainful work which exists in the national
economy.”243

However, in 1996 Congress significantly amended the Social Security laws as they applied to children, in
effect changing them back to their pre-Zebley state. First, Congress amended the definition of “eligible mental
disability” for children, changing it from a disability of a severity “comparable” to that triggering adult
eligibility to a “medically determinable physical or mental impairment which results in marked and severe
functional limitations” of substantial duration.244 This change was designed to overturn Zebley, which had
relied on statutory interpretation of the “comparability” language. Second, the statute explicitly eliminated the
individualized functional assessment (IFA) that had been developed to implement Zebley.245
A primary reason for these amendments was Congressional concern that parents were coaching their
children to “fake” mental disorders. Yet studies by the SSA, the Department of Health and Human Services
Office of the Inspector General, and the GAO failed to discover evidence of widespread fraud.246 The
Congressional Budget Office estimated that as a result of the IFA’s elimination, 267,000 children would lose
access to benefits over the six years following enactment of the amendments.247
Given the revised statute and implementing regulations, today a child under the age of 18 is considered
disabled only if he or she has a medically determinable physical or medical impairment or combination of
impairments that causes marked and severe functional limitations, and that can be expected to cause death or
that has lasted or can be expected to last for a continuous period of not less than 12 months.248 In evaluating
whether a child meets this standard, the SSA once again uses a three-step process, described on its website.249
First, it must be determined whether the child is engaging in “substantial gainful activity.” If so, the child is
not considered disabled.250 If not, the second step is to determine whether the child has a severe impairment
from the listed impairments; if the impairment is not severe, the child is not considered disabled.251 If the

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child has a severe impairment, and it is not found in the listed impairments, the third step is to determine
whether it “medically equals, or functionally equals” the listing of impairments. The listed impairments for
children ages 3–18 include the same 11 diagnostic categories that apply to adults, with some modifications;
for children up to age 3, a single category, “developmental disorders in infants and toddlers,” applies.
As with an adult, the definition of each listed impairment relevant to step 2 includes a paragraph A, which
describes the characteristics necessary to substantiate the existence of the disorder, and a paragraph B, which
describes the social and personal functional limitations that must result from the disorder for the child to be
considered disabled. However, the SSA also notes:

The presentation of mental disorders in children, particularly the very young child, may be subtle and of a character different from the signs
and symptoms found in adults. For example, findings such as separation anxiety, failure to mold or bond with the parents, or withdrawal may
serve as findings comparable to findings that mark mental disorders in adults. The activities appropriate to children, such as learning,
growing, playing, maturing, and school adjustment, are also different from the activities appropriate to the adult and vary widely in the
different childhood stages.252

The definition of schizophrenia for children, found in Table 13.3, illustrates this point; it can be compared
to the adult listing for schizophrenia and other psychotic disorders in Table 13.2. The criteria for the other 11
diagnostic categories for children can be found online at the Social Security website in a publication titled
Disability Evaluation under Social Security (also known as the “Blue Book”).253

TABLE 13.3. Definition of Psychotic Disorders in Children

112.03 Schizophrenia spectrum and other psychotic disorders (in children)
a. These disorders are characterized by delusions, hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a
clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, inability to initiate and persist in goal-
directed activities, social withdrawal, flat or inappropriate affect, poverty of thought and speech, loss of interest or pleasure, disturbances of
mood, odd beliefs and mannerisms, and paranoia.

b. Examples of disorders that we evaluate in this category include schizophrenia, schizoaffective disorder, delusional disorder, and psychotic
disorder due to another medical condition.
For children age 3 to attainment of age 18, satisfied by A and B, or A and C:
A. Medical documentation of one or more of the following:
1. Delusions or hallucinations;
2. Disorganized thinking (speech); or
3. Grossly disorganized behavior or catatonia.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
1. Understand, remember, or apply information (see 112.00E1).

2. Interact with others (see 112.00E2).

3. Concentrate, persist, or maintain pace (see 112.00E3).
4. Adapt or manage oneself (see 112.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent”; that is, you have a medically documented history of the existence of
the disorder over a period of at least 2 years, and there is evidence of both:

1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes
the symptoms and signs of your mental disorder; and

2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already
part of your daily life.

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 112.00E [slightly modified here] provides definitions of the categories in paragraph B:
1. Understand, remember, or apply information. This area of mental functioning refers to the abilities to learn, recall, and use information
to perform age-appropriate activities. Examples include: understanding and learning terms, instructions, procedures; following one- or
two-step oral instructions to carry out a task; describing an activity to someone else; asking and answering questions and providing
explanations; recognizing a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using
reason and judgment to make decisions. These examples illustrate the nature of the area of mental functioning. We do not require
documentation of all of the examples. How this area of mental functioning is manifested and limitations in using it depends, in part, on
age.
2. Interact with others. This area of mental functioning refers to the abilities to relate to others age-appropriately at home, at school, and in
the community. Examples include: engaging in interactive play; cooperating with others; asking for help when needed; initiating and
maintaining friendships; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding
and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and
keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. These examples illustrate the
nature of this area of mental functioning. We do not require documentation of all of the examples. How this area of mental functioning
is manifested and limitations in using it depends, in part, on age.
3. Concentrate, persist, or maintain pace. This area of mental functioning refers to the abilities to focus attention on activities and stay on
task age-appropriately. Examples include: initiating and performing an activity that you understand and know how to do; engaging in an
activity at home or in school at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding
distractions while engaged in an activity or task; changing activities without being disruptive; engaging in an activity or task close to or
with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at school; and engaging in
activities at home, school, or in the community without needing an unusual amount of rest. These examples illustrate the nature of this
area of mental functioning. We do not require documentation of all of the examples. How this area of mental functioning is manifested
and limitations in using it depends, in part, on age.
4. Adapt or manage oneself. This area of mental functioning refers to the abilities to regulate emotions, control behavior, and maintain
well-being in age-appropriate activities and settings. Examples include: responding to demands; adapting to changes; managing your
psychologically based symptoms; distinguishing between acceptable and unacceptable performance in community- or school-related
activities; setting goals; making plans independently of others; maintaining personal hygiene; and protecting yourself from harm and
exploitation by others. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all
of the examples. How this area of mental functioning is manifested and limitations in using it depends, in part, on age.

Note. Taken from 20 C.F.R. § 404, subpt. P., app. I, ch. 112.00 (2016).

If the child does not have a listed impairment, then, as noted above with respect to step 3, the child must
have a functionally equivalent impairment to receive benefits.254 To meet this criterion, the child must have a
marked limitation in two of the following domains, or extreme limitation in one: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about
and manipulating objects; (5) caring for self; and (6) health and physical well-being. Each of these areas of
inquiry in turn is developed in more detail in the regulations and in the various publications available online
from SSA.255 The examples used by SSA to define when the child is not capable of “attending and
completing tasks” (2, above) illustrate both the level of detail and the focus on function:

(i) easily startled, distracted, or overreactive to sounds, sights, movements, or touch; (ii) slow to focus on, or fails to complete activities of
interest (e.g., games or art projects); (iii) repeatedly becomes sidetracked from activities; (iv) frequently interrupts others; (v) easily frustrated
and gives up on tasks, including ones [the child is] able to do; (vi) requires extra supervision to be engaged in an activity.256

(b) The Process for Decisionmaking

A Social Security claim is initiated by filing an application for benefits at the local Social Security district

564
office. The process is described on the SSA website.257 The application form asks for work and medical
history, the identity of any doctors consulted, and a description of the basis for the disability claim.258 The
initial determination of disability rests with a state agency, acting on behalf of the Secretary of Health and
Human Services (although the state may decline this function if it desires, in which case the federal
government fulfills the role259). In cases involving claims of mental disability, the initial determination is
made by a “disability examiner” and a psychiatrist or psychologist.260 No hearing occurs at this point, and the
claimant is advised by letter of the outcome of the claim. If the state agency decides in favor of the claimant,
benefits typically will be paid.261 If benefits are denied, the claimant may seek reconsideration of the decision
by the program administrators.
If the claim is denied by the program administrators as well, the claimant may request reconsideration of
the decision before a hearing officer. The claimant may represent him- or herself or have a representative
present, and is entitled to present evidence, although the proceeding is much less formal than a court
proceeding.262 Two sources of information are particularly important in case determinations. One is a
“vocational expert,” who may help the hearing officer determine whether there is a job in the “national
economy” that fits the claimant’s skills (in adult cases).263 Testimony from such an expert is not mandatory,
although some courts take the position that “[t]here should be a per se rule . . . requiring outright reversal of
the Secretary’s ‘finding’ where no vocational expert testified.”264 Second, in an effort to rebut the claimant’s
evidence, the government will often require the claimant to undergo a medical examination at government
expense (a consultative examination, or CE).265
After considering these various types of evidence, the hearing officer will issue a written decision.266 At
that point, appeal is available either to an administrative law judge or, under some circumstances, to a court,
through an expedited process.267 Proceedings before the administrative law judge are administrative in nature
[see § 2.04(c)]. One administrative law judge described his role in these cases as “unique” within the
American judicial system, because of the broad powers the judge has over the conduct of the hearing and the
fact that the government is not represented by counsel.268
It is evident from this brief description that establishing disability requires negotiating a many-tiered
administrative structure. Because most applicants will suffer from some impairment (whether or not it turns
out to be severe enough to show disability), and many have also been recently hospitalized for psychiatric
disorders, a large proportion of applicants have difficulty in maneuvering through the process. Many have
problems even getting past the first stage of this regime, meaning that they do not ever receive a hearing on
their claims.269

(c) Evaluation of Adults

As should be clear from the foregoing discussion, clinical information is critical to a Social Security
determination of disability based on mental impairment. The first major task of the examiner in Social
Security cases is determining whether a listed impairment or its equivalent exists. In doing so, it is important
to remember that the criteria require a finding both of enumerated clinical signs and symptoms (the part A
criteria) and the limitations on functioning caused by the impairment (the part B criteria). In addition, in
evaluating some disorders (e.g., schizophrenia) the regulations establish a third set of criteria (the part C

565
criteria) that, if met together with the criteria in A, can establish eligibility even if the criteria in B are not met
(see Table 13.2). The examiner should also remember the durational requirement that an impairment must
exist or will exist continuously for a period of at least 12 months.
When the examiner is evaluating whether a person has a listed impairment, the American Psychiatric
Association urges reference to the DSM because of the manual’s emphasis on objective and observable
criteria.270 If the person does not meet the criteria in one of the diagnostic categories, then the examiner must
determine whether the individual has a functionally or medically equivalent impairment. As noted earlier, the
SSA regulations focus on four types of activities in addressing this issue: understanding, remembering, or
applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself.271
Under guidelines provided by the agency, “understanding, remembering, or applying information” refers to
the abilities to learn, recall, and use information to perform work activities. Examples include understanding
and learning terms, instructions, or procedures; following one- or two-step oral instructions to carry out a
task; describing a work activity to someone else; asking and answering questions and providing explanations;
recognizing a mistake and correcting it; identifying and solving problems; sequencing multistep activities; and
using reason and judgment to make work-related decisions.
“Interacting with others” refers to the abilities to relate to and work with supervisors, coworkers, and the
public. Examples include cooperating with others; asking for help when needed; handling conflicts with
others; stating one’s own point of view; initiating or sustaining conversation; understanding and responding to
social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and
challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or
suspiciousness.
“Concentrating, persisting, or maintaining pace” refers to the abilities to focus attention on work activities
and stay on task at a sustained rate. Examples include initiating and performing a task that the person
understands and knows how to do; working at an appropriate and consistent pace; completing tasks in a
timely manner; ignoring or avoiding distractions while working; changing activities or work settings without
being disruptive; working close to or with others without interrupting or distracting them; sustaining an
ordinary routine and regular attendance at work; and working a full day without needing more than the
allotted number or length of rest periods during the day.
“Adapting or managing oneself” refers to the abilities to regulate emotions, control behavior, and maintain
well-being in a work setting. Examples include responding to demands; adapting to changes; managing
psychologically based symptoms; distinguishing between acceptable and unacceptable work performance;
setting realistic goals; making plans independently of others; maintaining personal hygiene and attire
appropriate to a work setting; and being aware of normal hazards and taking appropriate precautions.272 As
these criteria suggest, a full review of treatment records is essential to a disability evaluation.
In performing these assessments, the clinician may use forms developed by the SSA to structure the
inquiry. For instance, to “facilitate uniform and accurate application of listings at all levels of administrative
review,” the SSA has developed a Psychiatric Review Technique Form (PRTF), which is used in evaluating
whether an individual has a mental impairment that meets or equals the types of medical listings illustrated by
Table 13.2.273 The first page of the 15-page form requires the evaluator to list the disorder or disorders found

566
(if any); the next 11 pages repeat the criteria in paragraph A for each of the 11 listings; and the final pages of
the form repeat the criteria in paragraph B (which are identical for each listing) and paragraph C (which are
identical in those listings that have a paragraph C). For each section, the evaluator is to check the boxes that
apply and is provided space for “consultant’s notes” to explain the findings.
The clinician may also use a Residual Functional Capacity Assessment Form to measure the individual’s
capacity to perform work if he or she does not have a listed impairment. This form asks the rater to evaluate
various skills, such as the number of hours per day a claimant can sit, stand, walk, or work; the weight the
claimant can lift or carry; the ability to engage in repetitive hand action; the ability to stoop, crawl, and kneel;
the ability to tolerate dust, noise, and machinery; and the degree of pain suffered by the claimant.274
Although these forms probably do help structure the inquiry, overreliance on them in the past reportedly
undermined the quality of evaluations. For example, one survey found that many Social Security reports drew
conclusions without evidence of disabling illness or impairments, rarely described individual behaviors,
presumed disability from evidence of episodic psychosis, and ignored data on psychosocial stressors and
adaptive functioning.275 Similarly, a GAO report found that use of an early version of these checklists led to
undue weight being placed on the conclusions reached rather than on the facts underlying the judgment.276
The American Psychiatric Association also noted that many disability reports provided poor descriptions of
the level of functioning: “Common conclusions that a claimant ‘is not able to take care of himself’ or is ‘never
able to get along with anyone’ or ‘has no interests’ lack the specificity required to substantiate a conclusion that
the person is disabled.”277
Thus, in undertaking Social Security evaluations, the examiner should remember several points. First, a
diagnosis is important, but alone is not enough to prove that an impairment exists; rather, the examination
must explore the impact of an impairment upon the functional areas spelled out in the regulations. In using
the PRTF and other forms, therefore, the clinician should take full advantage of their provision for a
“narrative summary” of findings focused on the effect of the individual’s disorder. Second, the examiner
should always conduct a mental status examination; indeed, such an examination is required under the
regulations, and failure to conduct it is the most common error in cases reversed on review.278 Third,
according to the SSA, “in psychiatric claims, perhaps more so than in any other [area], a detailed longitudinal
history is needed.”279 Thus the clinician should evaluate and describe the length and history of the
impairment, points of exacerbation and remission, any history of hospitalization and/or outpatient treatment,
and modalities of treatment used in the past.
Fourth, collateral sources of information are very important, both because functional limitations cannot be
assessed without knowledge of the person’s daily activities and because of the durational requirement for the
impairment. For example, in assessing how a person interacts at home or at work, the mental health
professional necessarily will have to rely on the reports of others; information made available through the
clinical interview will not be sufficient. In many instances, the regulations indicate that such collateral
information is required.
Finally, the clinician should consider the claimant’s treatability, because the claimant will not be found
disabled if he or she is not following treatment recommendations that can restore the ability to work.280
Therefore, the examiner’s treatment recommendations may have a significant impact on the eligibility
determination. In addition, prognosis is important in determining the duration of the disability because of the

567
regulatory focus on duration of the impairment.
In an effort to create a useful format for evaluations and report writing in this area, the American
Psychiatric Association created model guidelines in 1983.281 Although these guidelines are dated, the report
format is similar to the general format for report writing endorsed in this book [see § 19.01] and has several
elements worth considering in this context:282

An introduction, providing basic identifying and demographic information.

A history of present illness, including its course, treatment, and important clinical changes, as well as an
“explicit description” of the claimant’s functioning over a period of time with examples of that functioning.
Past history, including a description of the claimant’s history prior to the onset of the current illness, and
relevant family and developmental history.
Mental status exam report, designed to clearly establish the presence or absence of a current mental illness,
organized in a logical fashion with “actual descriptions of behavior and direct quotations from the
claimant.”
A summary of information, which ties together the information from the previous sections.
Diagnosis.
Prognosis, which is important in assessing whether the disability will be considered lasting enough in
duration to meet statutory requirements.
Ability to handle funds, often required as part of the report when the referral for evaluation is made.

Note that the Association’s format does not include a section on psychological testing. However, the SSA
recognizes that such testing can often be helpful in performing disability evaluations, if the test is associated
with certain characteristics: (1) validity (i.e., the test measures what it is supposed to measure); (2) reliability
(i.e., the test arrives at consistent results over time with the same individual); (3) availability of appropriate
normative data (i.e., individual test scores can be compared to test data from other individuals or groups of a
similar nature, representative of that population); and (4) a wide scope of measurement (i.e., the test measures
a broad range of facets/aspects of the domain being assessed). The SSA also states that personality tests such
as the MMPI-2, projective measures, and neuropsychological assessments may be helpful.
Note also that the APA’s report format does not include a section on whether the person is entitled to
compensation. This conforms with our usual injunction against reaching the ultimate issue. As the
tumultuous history of the Social Security laws indicates, politics can play a significant role in determining the
scope of the disability rules. It is not up to the clinician to determine benefits. The Peter Doe report, in §
19.10(a), provides an illustration of many of these points.

(d) Evaluation of Children

As noted above, the SSA follows a three-step sequential process for determining whether a child is eligible for
benefits: (1) Is the child engaged in substantial gainful activity? (2) If not, does the child have an impairment
found in the listed impairments? (3) If not, does the child have an impairment that is the medical or
functional equivalent of an impairment as determined by application of the SSA guidelines? The evaluation
structure is thus not unlike that for adults. However, there are at least three differences between the two types

568
of evaluations. First, the Social Security guidelines (provided in the aforementioned Disability Evaluation
under Social Security, or the “Blue Book”) take care to distinguish between the criteria for children and those
for adults. The evaluator must be familiar with these differences, which can be found primarily though not
exclusively in the part B criteria defining the functional limitations created by the symptoms of the
impairment. Instead of focusing on deficiencies in the areas of daily living, social functioning, concentration,
and work settings, as is the case with adults, these criteria are expressed in terms of age-appropriate behaviors
in the areas of cognitive/communication functions, social functions, personal/behavioral functions, and
concentration.
Second (and more important), although both sorts of evaluation focus on the interrelationship between the
impairment and functioning, the functional areas at issue vary according to the examinee’s age. The SSA
differentiates among ages 0–3, 3–6, 6–12, and 12–18; at age 18, the child must be reevaluated under adult
standards. The evaluator should rely on tools that can reliably and validly evaluate children of the claimant’s
age, which may not be the same as those that are useful in evaluating adults or as those that are useful for
children at other ages. One commentator has also suggested that in examining the six domains of functioning
the SSA considers with children (noted earlier), some multidimensional scales may be helpful to the examiner
—in particular, the current versions of the Vineland Adaptive Behavior Scales, the Scales of Independent
Behavior, the Child and Adolescent Functional Assessment Scale, and the Child and Adolescent Level of
Care Utilization System.283
Third, although collateral information is important in both types of evaluations, the sources will vary from
those relied on in evaluating an adult. With a child, school records will be important, as will communications
with parents or those acting in that role. Other informants may include friends or others in a position of
authority. As with adults, the SSA regulations emphasize reliance on multiple sources of information284 and
the acquisition of longitudinal information.285
Finally, the evaluation of a child or adolescent must consider the impact of both hospitalization (or
placement in other structured settings) and medications. Children in the hospital may appear to be
functioning at a higher level than they can elsewhere.286 Therefore, the degree to which the child can function
outside the structured setting should be determined. At the same time, the regulations make it clear that the
fact of placement in such a setting does not alone permit a conclusion that the child or adolescent has an
impairment. Similar cautions are appropriate in connection with the impact of medication, particularly
psychoactive medications.287

13.05. IMMIGRATION LAW

(a) Legal Setting

Noncitizens (sometimes referred to as “aliens”) who seek admission to the United States are subject to a
complicated statutory regime enacted by Congress (entitled the Immigration and Nationality Act) and to
regulations promulgated by the Department of Homeland Security and other agencies. These rules establish
numerous grounds for denying admission to the country (e.g., certain types of criminal histories). They also
differentiate between types of legitimate entries. Some noncitizens are granted permanent resident status
(symbolized by their “green card,” which is actually pink); others are granted temporary admission for

569
purposes such as vacationing, attending college, joining family members already present in the country, or
working for a sponsoring employer.288
Once within the country, noncitizens may be subject to “removal” (i.e., deportation) for a number of
reasons. For instance, noncitizens who entered without presenting themselves for inspection and admission
may be removed. Noncitizens who have been lawfully admitted to the United States can be removed as
well.289 For example, aliens who have overstayed vacation visas, who are no longer enrolled in educational
programs for which they were granted admission, or who are no longer employed by a sponsoring employer
may be deported. And aliens who have been granted permanent resident status can be removed for a number
of reasons as well (e.g., if they have been convicted of certain crimes).
In most of these situations, noncitizens who want to contest the denial of admission or their removal are
entitled to due process via participation in immigration court. The immigration adjudication process begins
when the Department of Homeland Security files a Notice to Appear naming a noncitizen (called the
“respondent”). The Notice to Appear is the equivalent of a charging document in criminal proceedings and
specifies the government’s allegations (e.g., that the respondent was convicted of a criminal act that justifies
deportation, or that the respondent entered the country illegally and is appropriate for removal). In some
cases, the respondent is detained in a detention center that operates much like a prison or jail; in other cases,
the respondent is allowed to remain in the community while awaiting a hearing.
Immigration court cases are adjudicated by the Executive Office of Immigration Review (EOIR), which is
part of the Department of Justice and is managed under the authority of the Attorney General.290 Thus
immigration proceedings are administrative in nature, and immigration courts are housed in the executive
rather than the judicial branch of the federal government. Department of Homeland Security attorneys
represent the federal government, and immigration judges are appointed by the Attorney General. Decisions
of immigration courts can be appealed to the Board of Immigration Appeals (BIA). The BIA does not
conduct courtroom proceedings, but on rare occasions it may hear oral arguments. BIA decisions are subject
to judicial review in the federal courts. In 2015, immigration courts opened 284,667 cases and
completed/closed 262,293 cases.291
Although aliens may retain their own attorneys in immigration court, with rare exceptions they do not have
the right to representation by government-paid attorneys.292 As a result, immigration court judges have
obligations that many judges do not. For example, as explained in more detail in § 13.05(b)(6), immigration
court judges must help respondents understand the nature and purpose of the proceedings in which they are
involved, assist them in identifying forms of relief for which they may be eligible, and aid them in developing
records (i.e., evidence) that can be used in support of any legal arguments they make.

(b) Issues That May Require Forensic Assessment

The parties or the judge in an immigration proceeding may seek the assistance of mental health professionals
for a number of reasons. The initial decision as to whether an alien is “admissible” or “removable,” such as
whether an alien has been convicted of a particular offense or is no longer with a sponsoring employer or
family, is not likely to require clinical expertise. But if inadmissibility or removability is established, the alien is
afforded an opportunity to apply for relief on numerous grounds, some of which might hinge on factors that

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are psychological or psychiatric in nature. These grounds are briefly described here.

(1) Hardship

In some cases, aliens may be granted relief in lieu of removal if they can show “hardship.” An alien who is
ineligible for admission to the United States can seek a “waiver of inadmissibility” if he or she can show that a
spouse, parent, or child who is either a permanent resident or a United States citizen would suffer “extreme
hardship” if the waiver is not granted.293 For example, a woman who is an inadmissible alien may seek a
waiver on the ground that if she is not allowed entry, her 87-year-old father (a permanent resident with severe
and debilitating dementia) will experience “extreme hardship.” Similarly, a man who is an undocumented
respondent could seek cancellation of removal by showing that his 8-year-old daughter, a United States
citizen with severe emotional and behavioral impairments, would suffer “exceptional and extremely unusual
hardship” in response to his removal.
In such a case, a mental health professional could be called on to evaluate the permanent resident or
citizen, describe his or her functioning and adjustment, and explain how it would be affected by the removal
of the alien spouse, parent, or child. Such an evaluation might be similar to a custody or other family-oriented
evaluation.294 But clinicians should be aware that a hardship claim seldom succeeds. Because removal of an
alien spouse, parent, or child will cause hardship for almost any permanent resident or citizen, establishing
simple hardship is not enough. The hardship must be beyond that which would ordinarily be expected to
result from separation.295

(2) Risk for Torture

Aliens can also seek to avoid removal on the grounds that they would be tortured if returned to the country of
their citizenship.296 In some of these cases, aliens may seek mental health evaluation to support their claim
that they have been tortured in their home country (and therefore are at risk for further torture if removed).
Expert testimony in these cases is in some ways similar to syndrome evidence offered in other contexts [see,
e.g., §§ 8.04(e), 15.04(c)(4)]. Thus it has all the attendant problems. For instance, the absence of symptoms
that might be expected to result from torture does not mean that a person has not been tortured. Nor does the
presence of symptoms that sometimes result from torture prove that the claimant was tortured (or, if tortured,
was tortured for the reasons claimed). Accordingly, mental health professionals should again be careful in
offering opinions in these matters.297

(3) Asylum

Aliens may also seek to avoid removal by applying for asylum in the United States. To qualify for asylum, a
respondent must prove that he or she meets the definition of “refugee.”298 This showing requires proof that, if
returned to the country of origin, the respondent will be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion.299 Mental health professionals may be involved
in these proceedings in one of two ways.

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 In some cases, aliens argue that they would be persecuted because of impairments in their emotional,
behavioral, or cognitive functioning. For example, a man with schizophrenia could allege that if returned to
the country where he retains citizenship, he would be persecuted, given prevailing beliefs that people with
mental disorders are possessed by the devil. In this case, the mental health professional would not address
whether the alien is likely to be persecuted if returned to his country of origin (this responsibility would fall to
others, perhaps anthropologists), but rather would provide evidence as to whether the alien has the claimed
mental disorder.
In other cases, aliens may claim that they were previously persecuted, in support of a claim that persecution
will occur again if they are removed. In such a case, an alien may seek clinical confirmation of psychological
symptoms consistent with persecution. Because such claims are similar to claims regarding torture, they raise
the same problems [see Ruth Amantha report, § 19.11(a)].

(4) Domestic Violence

A fourth way in which aliens may seek to avoid removal is a claim that they were subjected to domestic
violence at the hands of the spouse or parent who sponsored their initial entry.300 These respondents, usually
women, may now want to leave the relationship, but in doing so may be rendered inadmissible (e.g., because
of financial hardship or because they have lost their sponsors). Or, if they are being removed for some other
reason, they may claim that without the protection of American courts they will be subject to further abuse.
To establish independent legal status, the alien must prove that the removal would result in “extreme
hardship” to him or her, or to a child or parent who would be left behind. In these cases, aliens may seek
mental health evaluation with an eye toward showing the nature and extent of the physical or psychological
consequences of abuse,301 or demonstrating that they or others will experience some form of “extreme
hardship” in the country of origin if removed.

(5) Abused, Neglected, or Abandoned Children

Like women who are abused, juveniles who are abused or neglected may be able to avoid removal;
additionally, a juvenile who arrives at the border unaccompanied by an adult, which in recent years has
occurred frequently,302 may have grounds for admission. Juveniles who fit one of these categories are
considered for “special immigrant juvenile status.” Such children may be able to obtain admission or avoid
removal if they can show that otherwise they would be abused or persecuted, or suffer other extreme
hardship.303 The procedure for doing so can be complicated, involving use of state courts with the consent of
the federal government rather than the usual administrative procedure.304 A child’s testimony about abuse,
neglect, or abandonment may be sufficient in some of these cases. But corroborating evidence can include
psychological and medical evaluations.305

(6) Discretionary Determinations

Most forms of relief in lieu of removal require aliens to demonstrate that such relief is in the public interest.

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When removal is based upon factors such as prior criminal acts, violence, or substance abuse, aliens can
present evidence of their rehabilitation to support the argument that the removal should be canceled.306 For
example, an alien facing removal as the result of criminal convictions might argue that the convictions were, in
part, the result of a substance abuse problem for which he or she has undergone rehabilitation. In this type of
case, the mental health professional’s examination would focus on any impairments the respondent
experienced, and on the resulting treatment and response.307

(7) Risk Assessment

As is the case in state and federal domestic criminal proceedings, an immigration court judge may order a
respondent’s detention if the judge finds that the respondent (1) will not appear at subsequent legal
proceedings, or (2) is a danger to the community.308 Thus the mental health professional may be asked to
evaluate a respondent’s emotional, behavioral, and cognitive functioning as it affects the likelihood of
appearing in court or committing a crime. These evaluations are similar to those a psychologist might conduct
for purposes of informing a criminal court judge’s decision about a defendant’s eligibility for bail or bond.
A second type of risk assessment may be required when an alien is declared inadmissible on the ground
that he or she has a mental disorder that (1) threatens the public, (2) interferes with the capacity to care for
self or others or to attend school or work, or (3) might lead to extensive medical treatment and/or future
institutionalization.309 In such circumstances, the respondent can apply for a waiver of inadmissibility.310
Supporting documentation typically includes a mental health evaluation that includes diagnostic information,
an assessment of likelihood of harm to self or others (or to property), and a prognosis. If the waiver
application is approved, a second postadmission evaluation may be requested.311

(8) Competence to Proceed

Many aliens who have mental disorders or are young may have great difficulty understanding and
participating in immigration proceedings, even if language is not a barrier. Nonetheless, the relevant
regulations do not prohibit such proceedings when a respondent is incompetent. Rather, the procedure is to
go forward, with the respondent’s interests represented by a lawyer, a “next friend,” or (if neither exists) the
custodian of the detaining institution;312 in the latter two circumstances, the judge is charged with ensuring
that the respondent’s “rights and privileges” are protected.313
In Matter of M-A-M,314 the BIA fleshed out this judicial obligation. The court held that “if there are
indicia of incompetency, the Immigration Judge must make further inquiry to determine whether the alien is
competent for purposes of immigration proceedings.”315 It further held that “[t]he test for determining
whether an alien is competent to participate in immigration proceedings is whether he or she has a rational
and factual understanding of the nature and object of the proceedings, can consult with the attorney or
representative if there is one, and has a reasonable opportunity to examine and present evidence and cross-
examine witnesses.”316
Although this latter language is very similar to the Dusky test applicable in criminal proceedings [see §
6.02(b)], as applied in the immigration context it differs in two respects. First, as already noted, immigration

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proceedings may move forward even if the respondent lacks the competence to participate meaningfully in
them, provided that the court can identify available safeguards to ensure a fair hearing.317 Second, because an
alien is not entitled to counsel in these proceedings, even a person who is competent under Dusky may be at a
significant disadvantage in an immigration court.
Current EOIR policy attempts to mitigate these concerns. It states that unrepresented respondents must
have a

1. rational and factual understanding of:

a. the nature and object of the proceeding;
b. the privilege of representation, including, but not limited to, the ability to consult with a representative if one is present;
c. the right to present, examine, and object to evidence;
d. the right to cross-examine witnesses; and
e. the right to appeal.
2. reasonable ability to
a. make decisions about asserting and waiving rights;
b. respond to the allegations and charges in the proceeding; and
c. present information and respond to questions relevant to eligibility for relief.318

Consistent with M-A-M, an immigration judge who has a “bona fide doubt” that a detained, unrepresented
respondent is incompetent under this standard is required to conduct a judicial inquiry.319 If the judge is
unable to reach an opinion about the respondent’s competence, a psychologist or psychiatrist is to be
appointed to assess the respondent and write a report summarizing the evaluation.320 This report goes to the
judge, the government attorney, and the respondent, but the judge may use its contents solely for the purpose
of determining competence; thus, for instance, it may not be used to prove that the respondent is eligible for
removal [cf. § 4.02(a) on use of competence report results].321 If, after this inquiry, unrepresented respondents
are adjudicated incompetent to represent themselves, they are provided with government-paid counsel.322
As a result of these rules, competence evaluations of respondents who are represented by counsel may look
very much like competence-to-proceed evaluations of defendants in criminal proceedings [see § 6.08], and
competence-to-proceed evaluations of nonrepresented respondents may be similar to evaluations of criminal
defendants who are seeking to waive counsel and represent themselves [see § 7.05].323 Nonetheless, critical to
conducting these evaluations is an appreciation of the differences between immigration and criminal
proceedings (in particular, their relative informality and the complex nature of possible defenses to removal),
and the many unique aspects of the respondents in these proceedings. We turn briefly to this last topic.

(c) Special Aspects of the Evaluation

Although the foregoing discussion should make it clear that as far as forensic assessment is concerned,
immigration proceedings raise issues similar to those encountered in domestic law situations, a number of
factors can complicate the evaluation process.324 First, of course, many respondents do not speak or are not
fluent in English, meaning that many evaluators will need interpreters.325 Second, many respondents know
little about the American justice system and come from countries where there is considerable distrust of the
government, so a significant amount of “education” may be necessary simply to ensure basic knowledge of the
proceedings. Even more challenging is the fact that respondents will often come from cultures that manifest

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or conceptualize mental disorder differently than Americans do—a fact recognized in DSM-5.326 Indeed, the
entire life experience of respondents who have been subject to wars, gangs, political repression, and the like
diverges sharply from the experiences of most Americans and can have profound effects on their cognitive,
emotional, and behavioral functioning,327 especially if the noncitizens are children.328 All of these factors
work together to complicate the evaluation process.
In such cases, the evaluator is not simply aiming at a diagnosis and an assessment of mental symptoms.
Evaluations may require inquiry about numerous ecological factors: the vulnerability of refugees (especially a
children); wartime experiences; childhood soldiering; domestic violence; human trafficking and other forms of
exploitation; forced labor; malnutrition; residence in refugee camps; separation from family members; and
rapidly changing mores and expectations as individuals migrate through more than one geographic location.
Relevant data might include detailed narratives of what led up to the migration, what occurred during the
flight to a different country, whether the individual faced detention or other confinement conditions upon
arrival in the United States, stressful circumstances in the process of arrival and acculturation, family ties and
support networks in the United States, access to treatment/efficacy of treatment in this country and in the
country of origin, and conditions that the individual would face if he or she were made to return to the
country of origin.
Even if all of this information can be obtained, concerns about validity abound. A respondent’s accounts of
events, especially events outside the country, will often be unverifiable unless experiences were publicized or
the respondent traveled with other migrants.329 Furthermore, the intensity of these experiences and the
applicant’s age and developmental sophistication may pose challenges to the applicant’s capacity to report
what took place.330 Perhaps most challenging is the fact that the recommended content areas for examinations
give only minimal attention to cultural variations. In addition to the obvious problems created by language
differences are the lack of norms for many of the populations evaluated and the concomitant limitations on
the typical tools and procedures a forensic evaluator might use.331 In short, the evaluator must make an effort
to determine whether manifestations of symptoms and behaviors related to mental disorders are idiographic,
typical of the individual’s culture, or pervasive across cultures.332

13.06. CONCLUSION

The federal statutes described in this chapter are attempts to create a “safety net” for people with mental
disabilities. The Social Security laws are meant to ensure a minimal degree of financial sustenance for those
people who, because of their disabilities, are unable to perform a job. The ADA attempts to assist those who
can perform a job by prohibiting discrimination on the basis of disabilities, perceived as well as actual, in the
employment context. The ADA also bans such discrimination in the transportation, telecommunications, and
public accommodation contexts, while the FHAA does so in connection with housing. Immigration laws,
although not focused solely on people with disabilities, take mental and familial health issues into account in
regulating determinations about admission or deportation, and thus are another federal effort, admittedly only
partially realized, to ensure people with mental disabilities are not mistreated.
The ADA and FHAA have reconceptualized provision of employment and housing as matters of civil
rights rather than as acts of charity. Social Security laws increasingly try to encourage self-reliance and moving

575
people into the workforce. Immigration law is constantly being tweaked as a means of either increasing or
decreasing the exclusion of aliens. The impact of these policy shifts has been the subject of much debate—
politically, legally, empirically, and ideologically. The job of the mental health professionals charged with
performing evaluations in these contexts is to steer clear of the debate and to adhere to the structure that each
statutory scheme imposes on evaluations.
Although, as applied, these statutes provide only imperfect protection for those with mental disabilities,
together they represent a pioneering attempt to ensure that people with disabilities have access to basic
amenities that most citizens take for granted, but that have often been denied to those with disability because
of discrimination or a lack of means. This overarching purpose behind the laws should inform both the
lawyers and the mental health professionals working in this area.

BIBLIOGRAPHY

Michael Allen, Waking Rip Van Winkle: Why Developments in the Last 20 Years Should Teach the Mental Health System Not to Use Housing as a
Tool of Coercion, 21 BEHAVIORAL SCIENCES & THE LAW 503 (2003).
RICHARD J. BONNIE & JOHN MONAHAN, MENTAL DISORDER, WORK DISABILITY AND THE LAW (1996).
Peter Blanck et al., Applicability of the ADA to “Ticket to Work” Employment Networks, 20 BEHAVIORAL SCIENCES & THE LAW 621 (2002).
Robert Burgdorf, The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARVARD CIVIL
RIGHTS–CIVIL LIBERTIES LAW REVIEW 413 (1991).
STEPHEN A. CULBREATH, COMPREHENSIVE INTRODUCTION TO U.S. IMMIGRATION LAW (2016 ed.).
William E. Foote, Forensic Evaluations in Americans with Disabilities Act Cases, in 11 HANDBOOK OF PSYCHOLOGY: FORENSIC PSYCHOLOGY
(Alan M. Goldstein ed., 2003).
William E. Foote, A Model for Psychological Consultation in Cases Involving the Americans with Disabilities Act, 31(2) PROFESSIONAL
PSYCHOLOGY: RESEARCH & PRACTICE 190 (2000).
LAURA L. MANCUSO, CASE STUDIES ON REASONABLE ACCOMMODATION FOR WORKERS WITH PSYCHIATRIC DISABILITIES (1993).
John Monahan, Alison D. Redlich, Jeffrey Swanson & Pamela Clark Robbins, Use of Leverage to Improve Adherence to Psychiatric Treatment in
the Community, 56 PSYCHIATRIC SERVICES 37 (2005).
Susan M. Meffert, Karen Musalo, Dale E. McNiel & Renee L. Binder, The Role of the Mental Health Professional in Political Asylum
Processing, 38 JOURNAL OF THE AMERICAN ACADEMY OF PSYCHIATRY & LAW 479 (2010).
John Petrila, Enforcing the Fair Housing Amendments Act to Benefit People with Mental Disability, 45 HOSPITAL & COMMUNITY PSYCHIATRY
156 (1994).
Special Report: Guidelines for Psychiatric Evaluation of Social Security Disability Claimants, 34 HOSPITAL & COMMUNITY PSYCHIATRY 1044
(1983).
BONNIE TUCKER & BRUCE A. GOLDSTEIN, LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN ANALYSIS OF FEDERAL LAW (1992).

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PART IV

CHILDREN AND FAMILIES

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CHAPTER 14

Juvenile Delinquency

14.01. INTRODUCTION

In the first edition of this book, this chapter began:

Perhaps nowhere in the legal system is there as much deference to mental health professionals as in the juvenile court. Indeed, the child
mental health and social service professions have grown up with the juvenile court to a large extent. Although this symbiosis has been under
attack in the last two decades, it persists and shows no sign of disappearing.1

After another three decades, prevailing juvenile justice policy has changed little. Although the attack on the
court and its rehabilitative mission accelerated in the early 1990s, the assault had died down substantially by
the turn of the millennium, and clinical participation in the juvenile court system is still significant. A recent
panel of the National Research Council (NRC) observed:

By the mid-1990s, juvenile crime rates began to decline, and by 2004 youth crime rates were at a two-decade low. Although supporters
might argue that the harsh legal response caused the decline, juvenile crime rates had begun to decline long before the era of punitive reforms
ran its course. A new attitude toward adolescent offenders and juvenile crime emerged, along with a reevaluation of incarceration-based
policies. The underlying premise of the juvenile court—that juvenile offenders are different from adult criminals and that the justice system
should treat them differently—seems to be reemerging.2

At the same time, the new “children-are-different” trend is not dramatic, and the juvenile court remains
the subject of passionate debate between the left and the right. Those on the left continue to worry about the
watered-down version of due process that is a vestige of the original highly paternalistic juvenile court; those
on the right lament the coddling of juvenile offenders, which they believe is at least partially responsible for an
epidemic of serious juvenile crime. The right’s assumptions about the record of the juvenile court and the
prevalence of serious juvenile crime, although largely contrary to empirical evidence, were energized by the
skeptical beliefs and fearful attitudes of the general public.3 Although public attitudes have moderated since
the 1990s, the majority of adults continue to doubt the efficacy of the existing juvenile justice system, as it is
typically implemented, in rehabilitating juvenile offenders4—ironically, at the same time that the state of the
art (if not the state of the practice) of treating juvenile delinquents has improved significantly [see § 14.05(b)
(3)].
The result of these perceptions was a marked erosion in the late 20th century of the juvenile court in most
states through reduction of the court’s jurisdiction, increased transfer (or waiver) of juveniles to criminal
courts,5 and deemphasis of its historic rehabilitative purpose [see § 14.02(e)]. Nonetheless, the rehabilitative
goal typically was not eliminated altogether.6 Indeed, the transfer decision itself usually requires mental
evaluation to determine whether the juvenile is amenable to treatment in the juvenile system [see § 14.04(b)].
The increased complexity of the juvenile court’s roles and functions gives new weight to the conclusion to the

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introduction to this chapter in the first edition:

In view of the special role of mental health professionals in the juvenile process, it is particularly important for child clinicians and juvenile
attorneys to have an appreciation of the situations in which clinical opinions are likely to be significant in juvenile court, as well as of the
limits of expertise on these questions.7

To obtain such an appreciation, it is useful to begin by examining the evolution of the juvenile court. The
chapter then discusses the modern process of adjudicating delinquency and some directions for reform,
including those that have been advanced in the international arena. Finally, it provides recommendations for
mental health evaluations in the delinquency context, together with relevant recent research concerning the
causes and patterns of delinquency and the most effective ways of treating juveniles with mental and
behavioral problems.

Problem 14.1

A juvenile court clinic is involved in a long-term planning process. You are asked to (1) advise clinic staff
members about ways that trends in legal policy and research on serious delinquency are apt to affect their
work, and (2) make recommendations about changes that may be needed in its program. In preparing your
response, consider (1) the changing jurisdiction of the juvenile court, (2) the expectation in international
human rights law that procedures will comport with a child’s sense of dignity, and (3) knowledge about the
causes and treatment of delinquency.

14.02. THE RISE AND FALL OF THE “THERAPEUTIC” JUVENILE COURT

(a) Juvenile Justice in the Common Law

The juvenile court is a relatively recent jurisprudential invention. The first juvenile code (in Illinois) did not
appear until 1899. Prior to that time, juveniles’ indiscretions were considered within the general body of
criminal law. There was, however, an assumption that immaturity might reduce or even exculpate the
blameworthiness of errant youth. Specifically, in the common law, infancy8 was an absolute defense against
criminal charges until age 7 (or 10, depending on the jurisdiction); for children ages 7–14, the presumption of
incapacity to form criminal intent was rebuttable by a showing of maturity.9
Two points are noteworthy about the common-law heritage. First, the age at which children could be held
fully responsible for adhering to adult standards of conduct was quite young in comparison with current social
and moral standards. Second, when charges were brought against children and youth, the action was indeed
against them. The question was whether the juveniles had engaged in conduct deserving of criminal
punishment, not whether the state might assist the youth in their socialization.

(b) The Social and Legal Segregation of Youth

The prevailing ethos with respect to both of these points began to change late in the 19th century. First, the
industrial age brought the need both to socialize the immigrant class and to lengthen the period of immaturity
so that it was long enough for skills to be acquired to meet the increasingly complex demands of the
workplace. These social needs led to the “invention” of adolescence and the postponement of adult

579
responsibilities.10 For the first time, there was clear demarcation of youth as a special time of life, an
identifiable stage of development.
Second, with the invention of adolescence came demands for age-grading of responsibilities and increasing
segregation of youth from the adult world.11 This policy trend was endorsed by the leading social reformers
and scholars in the social sciences. For example, starting from the premise that ontogeny (the development of
the individual) recapitulates phylogeny (the development of the species), G. Stanley Hall, the father of
developmental psychology, conceptualized adolescence as an evolutionary way station between primitive
savagery and civilization.12 In the view of Hall and his contemporaries, special legal and social structures for
youth were necessary to ensure their socialization as rational contributors to the commonweal. Less elegantly,
“child saving” became the rubric for protecting middle-class, small-town youth from the threats that the
lifestyle of working-class immigrants allegedly posed to the American way.13 Age-graded institutions were
thus perceived as highly compatible with the interests of both the state and the juvenile. Paternalistic social
structures for youth would protect society from an immature social class and would assist in their
acculturation; it would also “save” youth from both the “lower” elements of the culture and their own baser
instincts.

(c) The Invention of the Juvenile Court

At about the turn of the 20th century, a number of age-graded legal structures were developed in response to
these beliefs; one of these structures was the juvenile court.14 These legal reforms all were founded on a
philosophical assumption that the interests of the state and the juvenile were coextensive. In the juvenile
court, unlike the criminal court, the state as parens patriae15 would act on behalf of youth and provide them
with the treatment needed to ensure that they overcame their youthful indiscretions and adopted civilized
mores.
The overriding raison d’être of the juvenile court was therefore rehabilitation. Because it did not subject
youth to punishment, this court had no need for formal protections of due process. Indeed, there was nothing
adversary about the proceeding (the state, after all, was acting for the juvenile); furthermore, the reasoning
went, the trappings of criminal procedure and formal rules of evidence might interfere with the treatment that
the court would initiate.
Several additional features followed from this philosophy. To avoid stigma (and resulting self-fulfilling
prophecies of criminal behavior), and to promote the beneficent appearance of the juvenile court, proceedings
would be closed and records would be sealed. The proceedings would be “civil,” and terminology derived from
civil procedure would be used.16 Because the focus was on rehabilitation rather than retribution, the
disposition would fit the offender and not the offense. A remorseful, troubled juvenile murderer might be
treated by a social worker in freedom, whereas another, more streetwise youth might be incarcerated for
several years for engaging in behavior that was neither clearly defined nor illegal for an adult (e.g.,
“incorrigibility”). As this latter example illustrates, because the aim was reform of errant youth, a whole new
category of offenses based on status was invented to provide the courts with the authority to implement this
reform. Typical “status offenses” included incorrigibility, unruliness, and truancy, today all lumped together
under the rubric “children (or persons) in need of supervision (or services)” (CHINS, also known as PINS).

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 Perhaps most important, the key actors in the juvenile court would be social workers, mental health
professionals, and probation officers. There was, after all, very little law and even less need for lawyers. Indeed,
many of the juvenile court judges were untrained legally.17 From intake to release, the key questions were need
for, and amenability to, treatment, and the experts on these questions were clinicians and caseworkers, not
lawyers.

(d) The Fall of the Rehabilitative Ideal

In the view of the reformers, the juvenile court was the paragon of “legal realism,”18 the ideal marriage of
“science”19 and law for the social good. Even as late as 1950, Dean Roscoe Pound, an illustrious proponent of
“sociological jurisprudence,”20 lauded the juvenile court as “the greatest step forward in Anglo-American
jurisprudence since the Magna Carta.”21
In fact, however, there was very little science in the juvenile court. Although clinicians were invited to
diagnose the psychopathology of wayward youth, to design dispositions, and in effect to adjudicate cases, there
was little attention to the assumptions of social fact22 that were fundamental to the court’s work. The
malleability of youth, the incompetence (and therefore lack of responsibility) of youth, the desirability of
informal proceedings for juveniles, and the rehabilitative potential of the court were all taken for granted
rather than empirically tested.
Gradually, however, it became clear that the juvenile court had failed to match its promise. As Justice
Fortas wrote in the majority opinion in Kent v. United States in 1966, “[T]here may be grounds for concerns
that the child [brought before juvenile court] gets the worst of both worlds: that he gets neither the
protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”23
The criticism was even more strident a year later in Justice Fortas’s opinion for the Court in In re Gault,24
doubtless the most important case in juvenile law specifically and children’s rights generally. In Gault, Justice
Fortas described juvenile courts as “kangaroo court[s]”25 characterized by arbitrariness,26 ineffectiveness,27 and
the appearance of injustice.28
The Gault case had two major effects. First, it made clear for the first time that children are “persons”
within the meaning of the Constitution; in the words of the Court, “neither the Fourteenth Amendment nor
the Bill of Rights is for adults alone.”29 These dicta opened the door to a whole series of questions about the
extent of constitutional rights for minors and their competence in exercising these rights.30 Second, Gault
“legalized” the juvenile court by establishing that juveniles were owed at least those elements of the due
process essential to fundamental fairness (e.g., the rights to counsel, to written and timely notice of the
charges, and to the privilege against self-incrimination).31 The Court made clear that a tradeoff between fair
procedures and the provision of “treatment” or custody would no longer be tolerated.32
It is indisputable that Gault has had a profound effect on the juvenile court system. Lawyers and law-
trained judges in juvenile courts are now commonplace, and in many jurisdictions juvenile courts have the
same trappings and most of the same procedures as criminal courts. At the same time, though, it is
noteworthy that ambivalence—less charitably, false hope—about the juvenile court has persisted since Gault.
The Gault Court itself seemed to suggest that the failures of the juvenile court were, to a large extent, the
result of inadequate resources rather than inherent flaws.33

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 Four years after Gault, the Supreme Court clearly enunciated that belief in denying juveniles the right to a
jury trial:

The juvenile concept held high promise. We are reluctant to say that, despite disappointments of grave dimensions, it still does not hold
promise, and we are particularly reluctant to say . . . that the system cannot accomplish its rehabilitation goals. So much depends on the
availability of resources, on the interest and commitment of the public, on willingness to learn, and on understanding as to cause and effect
and cure. In this field, as in so many others, one perhaps learns best by doing. We are reluctant to disallow the States to experiment further
and to seek in new and different ways the elusive answers to the problems of the young, and we feel that we would be impeding that
experimentation by imposing the jury trial. . . .
If the formalities of the criminal adjudicative process are to be superimposed upon the juvenile court system, there is little need for its
separate existence. Perhaps that ultimate disillusionment will come one day, but for the moment we are disinclined to give impetus to it.34

Consistent with this ambivalence, some juvenile courts still are not “Gault courts,” in that they are loath to
permit full adversariness and strict application of the rules of evidence.35 Analogously, there is a continuing
controversy about the proper role of defense attorneys in juvenile courts [see § 14.04(c)].36 In short, there is a
persistent debate about how to reconcile the promise of the juvenile court as a therapeutic instrument with
requirements for due process. Increasingly, this debate has merged with controversies about ways to
accommodate the desire to hold juvenile offenders—especially violent juveniles and repeat offenders—
accountable for their behavior. Policymakers are searching for a court form that vindicates the public’s
interests in retribution against and protection from serious offenders, at the same time that it provides justice
tempered by the offenders’ immaturity. In effect, there has been open recognition of the long-present but
formerly denied reality that punitive impulses exist side by side with altruistic and paternalistic aims in the
juvenile justice system.37
A 1991 national survey revealed the public’s support for all these positions.38 With a level of unanimity
rarely present in public opinion, 99% favored punishment of serious violent juvenile offenders, and 97%
supported punishment of youthful drug dealers and serious property offenders. At the same time, almost two-
thirds opposed incarceration of juveniles in adult prisons for serious property offenses, and the majority
opposed such incarceration even for serious violent crimes. Almost three-fourths supported primary reliance
on community-based programs rather than training schools, and nearly all favored rehabilitative programs
even for serious offenders. More than three-fourths also favored providing juvenile respondents with the due
process rights accorded to adult defendants.
Gallup polls conducted about a decade later, however, showed greater preference for adult-like punishment
for juveniles. Whereas earlier polls had indicated a desire among the majority to punish juvenile offenders less
harshly than adults, in the early 21st century about three-fifths of American adults (65% in 2000 and 59% in
2003) indicated that juveniles between 14 and 17 who commit violent crimes should be treated the same as
adults39—a result probably reflecting the increasingly retributive tone of American public opinion about crime
in general (regardless of the age of the offender). Some ambivalence remains, however. Showing, perhaps,
some awareness of the legislative changes in the 1990s,40 the proportion of the public that regarded the justice
system as “not tough enough” declined from 83% in 1992 to 65% in 2003, and had declined still further to
45% by 2016.41 More directly to the point, about 70% of adults believe that incarcerating juveniles with adults
makes young offenders more likely to commit crimes after release, and a similar proportion disagree that such
“shock incarceration” has a deterrent effect on juveniles.42

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 (e) The Shrinking of the Juvenile Court

Although the public has conflicting attitudes about appropriate measures to take, there is little disagreement
that something needs to be done to reform juvenile justice. Despite contrary empirical evidence,43 many
people believe that an epidemic of juvenile crime has been underway since the 1990s.44 Responding to this
perception, between 1991 and 1997 virtually every state legislature amended its juvenile code to “get tough” on
youth crime,45 and the two subsequent decades have seen only scattered movement back toward a less punitive
model.46 This trend is an extension in many ways of the legal reforms that took place in the 1980s, when
legislators began to try to bring juvenile codes into full conformance with Gault.47
The challenge for legislators has been to arrive at solutions that accommodate the widespread public
support both for maintenance of a rehabilitative regime and for a more punitive response to serious juvenile
crime. Although there may be other ways of reconciling these conflicting goals,48 the primary legislative
response has been to shrink rather than abolish the juvenile court.49 The new juvenile court laws appear to
have grown from an effort to limit juvenile court jurisdiction to those youth who “deserve” that court’s
presumably less punitive approach.50
Legislatures have followed several kinds of strategies in reducing the juvenile court’s jurisdiction.51 Least
commonly, they have lowered the upper age for juvenile jurisdiction (e.g., from 18 to 16). More commonly,
legislatures have made certain kinds of serious offenses subject to concurrent jurisdiction with adult criminal
court, so that prosecutors are able to choose where to file cases. Still more states, along with the federal
government, now have statutes requiring criminal filing of certain kinds of cases when older youth are
involved, and many have expanded the range of ages (e.g., down to 13) and offenses (e.g., possession of a
handgun) in which transfer is possible. Other states have established classes of juvenile offenders subject to
special provisions—an approach illustrated by statutes that impose adult criminal sentences on older youth
and those charged with especially serious offenses.52 Another common reform that limits juvenile court
jurisdiction, albeit one that moves away from punitive approaches, is the elimination of status offenses [see §
14.07(c)].

(f) The Neo-Paternalistic View

The long-term trend toward a more punitive “adult” approach to juvenile justice was slowed by the Supreme
Court’s decision in Roper v. Simmons,53 in which the Court held that the Eighth Amendment bars capital
punishment for offenses that occurred while the defendant was under 18 years old. The Court’s reasoning in
Roper has been applied in a series of subsequent cases to bar the application of the most severe punishments to
juveniles when there is the possibility of mitigation due to immaturity; “adult” crimes by juveniles, the Court
has said, need not imply “adult” punishments.54
Writing for the majority in a 5–4 decision in Roper, Justice Kennedy found that there are three “general
differences” between adolescents under 18 and adults that foreclose reliably classifying juveniles “among the
worst offenders”: (1) immaturity reflected in a tendency toward recklessness, (2) vulnerability to “negative
influences and outside pressures,” and (3) the lack of a fully formed character (transience of adolescent
personality traits).55 Therefore, the Court concluded, juveniles’ culpability is reduced.56 The Court also

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expressed doubt that the threat of capital punishment would deter young people prone to impetuous
behavior.57
Justice Kennedy appeared to rely heavily on an amicus brief filed by the American Psychological
Association. Making assertions that differed substantially from its previous briefs in cases involving
adolescents,58 the Association was in turn strongly influenced by the arguments of law professor Elizabeth
Scott and developmental psychologist Laurence Steinberg, both of whom consulted in the drafting of the
brief. In a series of publications since 1992,59 Scott, Steinberg, and their colleagues have argued that although
some differences between adolescents and adults (notably in capacity for rational, cognitive problem solving)
may have been exaggerated in the past, the differences are nonetheless substantial enough to warrant a
distinctive legal regime designed to protect young people from their own impetuousness. Scott et al. are
particularly concerned about the prevailing tendency to punish serious offenses by juveniles as if they were
adults. In making their legal argument, they focus on four psychological variables that they believe are likely to
differentiate adolescents from adults: (1) vulnerability to peer influence; (2) degree of orientation toward the
future (adolescents are posited to be more present-oriented than adults); (3) risk assessment and risk taking;
and (4) impulsivity.60 They further argue that maturity should be conceived more broadly than cognitive
competence, to include responsibility (self-reliance; independence in the face of peer pressure); time
perspective (consideration of both long- and short-term consequences of decisions); interpersonal sensitivity
(empathy); and temperance (self-control, modulation of emotions).61
In our judgment, Scott et al. overstate their case in four ways. First, they tend to overgeneralize about
adolescents’ capacity, based on differences between early adolescents and adults. The research on late
adolescence does not support a categorical view of adolescents as immature.62 Second, because they take a
deficit-focused approach, systematically looking for the variables (such as vulnerability to peer influence) on
which adolescents’ performance may be different than that of adults, overall similarities in capacity are
minimized. Third, Scott et al. tend to understate the “immaturity” of young adults (i.e., people within the 18-
to 25-year-old range), who also have a high rate of antisocial and risky behavior and who are far more similar
to than different from 16- and 17-year-olds. Fourth, even if Scott et al.’s observations were well taken, the
reality is that refraining from serious criminal acts requires little in the way of cognitive sophistication or
impulse control; an immaturity-based explanation for heinous crimes proves too much. All that is necessary
for full criminal culpability is the ability to perceive the most basic norms of social behavior—skills usually
well ingrained among elementary-school-age children and sometimes even younger children.
Nonetheless, we concur with the general thrust of Scott et al.’s argument, at least in regard to criminal
responsibility.63 When society systematically excludes young people from responsible positions and thus
deprives them of experience in decisionmaking, it is simply unfair to hold adolescents to the same standards as
adults. Our specific rationales for maintaining a separate juvenile system are somewhat different, however.
First, we believe that a treatment-oriented regime for juveniles is better justified on, and more consistent with,
a prevention rationale than on the lesser culpability rationale advocated by Scott et al.64 Second, we are also
struck by the indications that adolescents appear particularly inept in the legal system [see §§ 14.04(a) &
14.04(c)]. Several factors probably contribute to the difficulties that children and adolescents experience in the
legal process:65

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 1. Socioeconomic status. Research has shown that children from disadvantaged backgrounds typically do
not view themselves as entitled to rights and may actually believe they will be punished for exercising them (at
least until they observe otherwise). This distrust of justice system professionals—distrust that is doubtless
deserved at times—ironically is apt to increase the impression that such a juvenile is only marginally
competent, and, in so doing, increase the attorney’s belief that he or she should not directly advocate the
juvenile’s wishes.
2. Psychological well-being. Emotional disturbance is common among juvenile offenders. It is plausible that
psychological concerns adversely affect their performance in assisting in their defense.
3. The quality of legal representation. The American Bar Association (ABA) has acknowledged that the
quality of representation for juveniles is often poor. Unsurprisingly, the majority of children in the system are
dissatisfied with the quality of legal advocacy that they have experienced. Uncertainty about whether attorneys
should act as advocates, guardians, or both also undermines the quality of legal representation.
4. Perceived or actual coercion. As noted above, juveniles may perceive that, regardless of assurances to the
contrary, they will be punished if they assert their rights. Furthermore, in a system in which dispositions are
based on “amenability to treatment,” exercise of those rights can result in more onerous consequences because
it suggests that the juvenile is not being “cooperative” and “remorseful.” Additionally, parents generally
encourage or even order their children who are accused of breaking the law to waive their rights.
5. Inexperience in using professional services. Because of their dependency, both legally and financially,
young people rarely have experience in contracting for professional services. Hence, even when they are
entitled to counsel, invoking that right may seem to be a formidable task. In fact, in many states, the majority
of respondents waive their right to counsel.

In short, even if limitations in use of the justice system are not the product of immaturity per se—or at least
not immaturity alone—but, instead, of circumstances associated with young people’s status in our society,
there is reason to reconsider the premises of juvenile justice policy. In that regard, Scott et al.’s exposition of
an alternative viewpoint in prestigious fora and the attention given to it by the Supreme Court in Roper and
its progeny may be useful in stimulating more thoughtful policies in response to children and adolescents who
break the law. Some of these policies are discussed below.

14.03. THE NATURE OF THE JUVENILE PROCESS

(a) A Typical Statute

As the new transfer statutes described above illustrate, most state juvenile codes now are uneasy mixtures of
the old “therapeutic” approach and the new “criminalized” approach. Responding to constitutional dictates
and public opinion, state legislatures have uniformly rejected the pure parens patriae model, but almost all
have been reluctant to discard a beneficent approach altogether. The current hybrid model has emerged in
waves of legislation responding to the Supreme Court’s decisions in the late 1960s and early 1970s, the ABA’s
Juvenile Justice Standards Project in the late 1970s and the early 1980s, and the public concern about violent
juvenile crime in the 1990s. To provide a concrete picture of the resulting legislative framework, we examine
Colorado’s juvenile code,66 which is typical.

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 (1) Purpose

The Colorado juvenile code, like the juveniles codes of most states, exemplifies the attempt to accommodate
simultaneously rehabilitative, incapacitative, and retributive goals. Thus the purposes of the Colorado statute
are “[t]o secure for each child . . . such care and guidance as will best serve his welfare and the interests of
society, [t]o improve and strengthen family ties . . . , [t]o remove a child from the custody of his parents only
when his welfare and safety or the protection of the public would otherwise be endangered . . . and, [t]o secure
for any child removed from the custody of his parents the necessary care, guidance, and discipline to assist him
in becoming a responsible and productive member of society.”67 At the same time, the code seeks “to protect,
restore, and improve the public safety by creating a system of juvenile justice that will appropriately sanction
juveniles who violate the law.”68 Although it is not as explicit as some laws in establishing a retributive or “just
deserts” purpose [see § 9.02], the Colorado statute also provides, consistent with such a purpose, for
commitment of juveniles adjudicated delinquent to the Department of Human Services for a determinate
term (varying according to the offender’s age) or to county jail or community corrections for a determinate
term (for offenders ages 18–21).69

(2) Jurisdiction

Several types of jurisdiction are connected with the juvenile court. “Act” jurisdiction concerns the types of
conduct that trigger juvenile court adjudication. In Colorado, the juvenile court has jurisdiction over cases
involving delinquency, CHINS, domestic relations, and civil commitment. Delinquency jurisdiction, which is
the primary subject of this chapter, may be exerted over any act that would be a crime if committed by an
adult, including traffic offenses.70 CHINS jurisdiction, which is a secondary topic of this and the following
chapters, encompasses habitual truancy, habitual running away, and other acts (e.g., violation of curfew) that
are offenses only if committed by children in Colorado. As is true in most other states, CHINS jurisdiction
may be exercised only if these acts present a substantial danger to the child’s health, or if the child or family is
in need of services not presently received and court intervention is necessary to provide them. Finally, civil
commitment jurisdiction, discussed in § 10.10(a), allows the juvenile court to hospitalize involuntarily
children found to be mentally disordered and dangerous to themselves or others.
The retention of CHINS jurisdiction illustrates the continued resistance toward patterning the juvenile
court system after the adult court. Perhaps Colorado and other states that recognize status offenses see them
as mechanisms for protecting children from unpleasant family situations rather than as disciplinary devices.
However, to the extent that this is the case, CHINS jurisdiction overlaps with domestic relations jurisdiction
and is unnecessary [see Chapters 15 and 16].
“Age” jurisdiction determines the point in a child’s life when the court loses control over him or her. In
Colorado, the juvenile court has “adjudicatory jurisdiction” over any child who has not yet reached the age of
18 at the time the act complained of was committed, and “dispositional jurisdiction” over a youth until the age
of 21.71 This means, for instance, that a 17-year-old who is found delinquent may be detained in a juvenile
facility for four years. The court also has jurisdiction over adults in abuse, neglect, and CHINS cases.
A final type of jurisdiction possessed by the juvenile court in Colorado as well as most other states is

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“transfer” or “waiver” jurisdiction. As noted previously, this type of jurisdiction gives the court authority to
decide whether a child charged with delinquency should be tried in criminal court. If transfer occurs, the
juvenile court loses jurisdiction over the child. Additionally, in Colorado (as in about 15 other states),
prosecutors can bypass the juvenile court entirely through “direct file” authority, which allows prosecutors to
file directly with the adult court charges on certain types of crimes for juveniles who are past a certain age.72
With respect to transfer effected by the juvenile court, the court need merely find “probable cause” that the
offense has been committed and that the interests of the juvenile or of the community would be better served
by transferring (or “waiving”) jurisdiction.73 In making the latter determination, the court is directed to
consider, among other things, the seriousness and number of alleged offenses; whether the offenses were
committed in an aggressive, violent, premeditated, or willful manner; whether the offense was committed
against persons or property; the juvenile’s maturity, record, and previous history; the likelihood of
rehabilitation of the juvenile in facilities available to the juvenile court; the community’s interest in
punishment commensurate with the gravity of the offense; and the impact of the offense on the victim. Thus
the criteria for determining whether a youth is appropriately retained in the juvenile system are a complex set
of factors bearing on culpability, rehabilitative potential, and public safety.

(3) Procedure

The stages of a juvenile delinquency or CHINS proceeding parallel those in adult criminal court [see §
2.04(a)]. However, the terminology used to describe these stages continues to reflect the desire to avoid
equating delinquency with criminality, and thus to minimize the stigma associated with the juvenile process.
In Colorado, after arrest (in most other states called “apprehension”74), the juvenile has the right to a
“detention hearing” to determine whether release is appropriate (analogous to an adult defendant’s bail
hearing). The juvenile may be detained if release would endanger the juvenile or the community. A district
attorney who determines that the interests of the juvenile or the community demand further action may
initiate a “petition” in delinquency against the juvenile in juvenile court.75 If the petition is the first petition
filed against the juvenile in the jurisdiction, the district attorney may determine whether implementation of
restorative justice practices would be preferable to formal prosecution or diversion of charges is appropriate.
Once a petition is filed, the district attorney must make discovery material available to the juvenile, and the
juvenile court must hold a “preliminary hearing” at the request of the district attorney or the juvenile to
determine whether there is probable cause to believe that the juvenile committed the alleged delinquent act.
At the preliminary hearing, the state has the burden of establishing probable cause, and the juvenile has the
right to counsel, to cross-examine witnesses, and to present evidence.76
If the court determines at a preliminary hearing that probable cause exists, it must schedule an adjudicatory
“hearing” (i.e., trial). Although the juvenile enjoys most rights afforded to adult criminal defendants in district
court, he or she has no right to a jury trial except in limited circumstances, and hearings may be conducted in
an “informal manner.”77 The state bears the burden at trial of proving its “allegations” (i.e., charges) beyond a
reasonable doubt. If, after trial, the juvenile is found to be delinquent (i.e., guilty), a sentencing hearing (called
a “dispositional hearing” in many states) takes place. The judge usually depends heavily on the probation
officer’s “social study” (presentence) report. Appeal may be made to the Colorado Court of Appeals (the

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intermediate state appellate court).78
Although this description depicts the law in a single state, it can fairly be said to represent the typical
juvenile code. The Colorado statute reflects public ambivalence about the juvenile court, especially in regard to
adjudication and disposition of serious offenses. At the same time, it retains much of the historic juvenile
process focused on the youth’s best interest.

(b) Directions for Reform

(1) Community-Based Systems

The public’s mixed attitudes about the stance that the juvenile court should take are further reflected in the
fact that the “get-tough” response to the perceived increase in serious juvenile crime has not been uniform.
Indeed, legislatures and administrators in some of the most conservative states have been among the leaders in
progressive juvenile justice reform.79 Recognizing that traditional training schools are ill suited to modify the
multiple determinants of juvenile crime, policymakers in some states have substantially reduced their use of
incarceration and substantially expanded their community-based alternatives to incarceration. The motivation
for this shift has not been a desire to “go easy” on vulnerable juveniles. Rather, policymakers in such states—
often with a nudge from the courts80—have concluded that large institutions are both expensive and
ineffective relative to well-conceptualized community alternatives. From such a perspective, the growth of
community programs is closely linked to the public’s clamor for a reduction of juvenile crime.
Idaho is an example of a politically conservative state with an increasingly expansive juvenile justice policy.
Consider the list of principles found in a three-page intent section that was adopted by the Idaho legislature in
1995 and updated in 2006, describing critical elements of a “coordinated program of rehabilitation”:

It is the . . . intent of the legislature that the primary purpose of this act is to provide a continuum of programs which emphasize the juvenile
offender’s accountability for his actions while assisting him in the development of skills necessary to function effectively and positively in the
community in a manner consistent with public safety. These services and programs will individualize treatment and control the juvenile
offender for the benefit of the juvenile and the protection of society. It is legislative intent that the department of juvenile corrections be
operated within the framework of the following principles to accomplish this mission:

(1) Provide humane, disciplined confinement to a juvenile who presents a danger to the community.
(2) Strengthen opportunities for the juvenile’s development of competency and life skills by expanding the juvenile’s access to applicable
programs and community resources.
(3) Hold juveniles accountable for their delinquent behavior through such means as victim restitution, community service programs and the
sharing of correctional costs.
(4) Invoke the participation of the juvenile offender’s parent or legal guardian in assisting the juvenile to recognize and accept responsibility
for his delinquent or other antisocial behavior and hold the parent or legal guardian accountable, where appropriate, through the payment
of detention costs and restitution to victims and through attendance at programs for the development of positive parenting skills designed
to promote a functional relationship between the juvenile and his family.
(5) Develop efficient and effective juvenile correctional programs within the framework of professional correctional standards, legislative
intent and available resources.
(6) Provide for a diversity of innovative and effective programs through research on delinquent behavior and the continuous evaluation of
correctional programs.
(7) Assist counties in developing meaningful programs for juveniles who have come into the juvenile justice system but who have not been
committed to the custody of the department of juvenile corrections.
(8) Provide programs to increase public awareness of the mission of the juvenile corrections system and encourage public participation in
developing an effective juvenile corrections system designed to aid in reducing juvenile crime in this state.

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 (9) Develop and maintain a statewide juvenile offender information system.81

Note that although the tenor of this statutory language is within the rehabilitative tradition, it is tempered
by the beliefs that the juvenile justice system sometimes does more harm than good, that careful evaluation
and planning are needed to avoid such a result, and that juveniles should be held accountable for their
behavior. The approach adopted by Idaho also entails a multiplicity of responses (e.g., “humane, disciplined
[formerly ‘secure and therapeutic’ in the 1995 version of the law] confinement” for dangerous youth) matched
to community resources as well as offender risk and needs.

(2) Juvenile Justice Standards

The values and beliefs underlying the Idaho juvenile code, as revised, bear considerable resemblance to those
grounding the Juvenile Justice Standards adopted over three decades ago. The product of the Juvenile Justice
Standards Project, a mammoth interdisciplinary undertaking sponsored by the Institute of Judicial
Administration and the ABA in the late 1970s and early 1980s, the Standards remain the most influential
scholarship in the debate about the proper form of the juvenile justice system. The Project generated 23
volumes of standards and commentary on various topics of juvenile court administration, procedure, and
substance. Most of these volumes have been adopted as official ABA policy.82
The Standards are important not simply because of their official status and the stature of the panels that
composed them. They are also significant because they present a well-thought-out model for the post- Gault
juvenile court. Indeed, the Standards go well beyond Gault in the limits that they would place on discretion
and in their rejection of the assumption that juvenile courts are primarily agencies for treatment.
In terms of procedure, the Standards emphasize the appearance and reality of fairness through adherence to
the sorts of procedures that have been linked in the Constitution and the common law with due process
(including the right to public jury trial).83 With respect to substantive provisions,84 the most significant (and
most controversial) provisions replace offender-based dispositions with determinate sentences proportionate
to the offenses in question (the “just deserts” approach discussed in § 9.02). On the theory that the juvenile
justice system is usually more debilitative than rehabilitative, they provide for a presumption at intake in favor
of referrals to community agencies in lieu of filing charges, and require that postadjudicative dispositions be to
the least restrictive alternatives. Status offenses are “decriminalized” and removed from the jurisdiction of the
juvenile court.
In short, the Standards reject rehabilitation as a feasible and fair primary basis for a justice system, and they
provide for the “five D’s”: due process, deserts, diversion, deinstitutionalization, and decriminalization. Even if
the philosophical foundations are not fully compatible, the systemic reforms attempted under the Idaho code
described in the previous section are thus progeny of the reforms that attracted widespread attention from
both scholars and policymakers decades earlier. Although the ABA is currently revising the Standards, and
the American Law Institute is drafting principles in this area as well (both of them in an effort to take into
account the developmental literature and case law described earlier), neither project is likely to depart far from
these premises.85

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 (3) Abolition

Given the extraordinary scope of the Standards Project, its most remarkable aspect may have been that it
nearly completely avoided the question of whether the juvenile court could be justified at all.86 By contrast,
calls for outright abolition or major reconstruction have come from multiple law professors. The abolitionists
believe that Gault, if taken seriously, would result in courts so close in form to adult criminal courts as to be
indistinguishable; at the same time, they note that adult courts still could administer punitive sanctions that
are less harsh for juveniles than for adults. The most influential proponent of abolition was at one time Barry
C. Feld, who observed that “[a]t best the contemporary juvenile court functions as little more than a scaled-
down, second-class criminal justice system for youths that provides neither therapy nor justice.”87
Accordingly, Feld questioned whether there is “any reason to maintain a separate court whose sole
distinguishing characteristic is its persisting procedural deficiencies.”88
Some other commentators acknowledge that the historic rationales for the juvenile court are bankrupt,89
but nonetheless assert that there still is a need for a court that combines rigorous protection of juveniles’ rights
with mild punitive sanctions (relative to those imposed by criminal courts). Such commentators sometimes
argue that the level of change needed to establish such a court is so great that functionally the result would be
a new type of court.90 As already suggested, they premise their begrudging support for a separate juvenile
court on one or more of the following three arguments:

The lesser culpability and deterrability of juveniles (relative to adults) and the lower stigma associated with
juvenile delinquency (relative to adult convictions).91
The lack of adherence to ideals of due process and humane treatment in criminal courts and adult
corrections.92
The difficulty that many juvenile respondents have in using adult due process protections.93

Neither abolition nor radical reform has made much headway, however. The fact that legislatures have
focused on shrinking the jurisdiction of the juvenile court rather than eradicating or significantly changing it
suggests that—however dissatisfied lawmakers may be with the court’s response to serious juvenile crime—
they desire a variant of the historic juvenile court. The modal view thus appears still to be that fairness and
rehabilitation can be achieved in the juvenile justice system for most juveniles who come before the court.
Indeed, even Feld has abandoned his earlier view that the juvenile court should be abolished.94
Even the staunchest defenders of the juvenile court generally concede, however, that the level of reform
needed is substantial. Common “mainstream” proposals include the following:

Greater judicial leadership than has been common.

Development and vigorous implementation of court rules to improve the quality of advocacy for juveniles.
Community action to increase the availability of high-quality preventive and rehabilitative services.
Changes in policy to accomplish sufficient diversion that the court’s caseload can be managed effectively.95

A more radical proposal is to abolish transfer, on the ground that treating juveniles as adults is criminogenic
and that public safety goals can be met through expansion of juvenile court jurisdiction.96
As the global community has recognized through the United Nations Convention on the Rights of the

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Child, the challenge is to create a juvenile legal system that treats every child within it “in a manner consistent
with the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and
fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting
the child’s reintegration and the child’s assuming a constructive role in society.”97 Accomplishment of this
goal will require law reform,98 probably including a reduction of cases coming before the court so that
adequate attention can be given to the cases that are heard.99 It will probably also require changes in mental
health professionals’ role in the court.

14.04. MENTAL HEALTH PROFESSIONALS’ ROLES IN JUVENILE COURT100

Mental health professionals may serve at least three roles in juvenile court. The first mimics the role clinicians
play in adult criminal court—evaluations of present and past mental state designed to aid in adjudicating guilt.
The second role—treatment evaluations—also arises in adult court, but is much more significant in juvenile
court. The third role—consultation—is really a spinoff of the first two, and may become particularly
important as juvenile justice becomes more adversarial in nature.

(a) Criminal Forensic Questions: Competence and Insanity

One result of changes designed to tie juvenile law more closely to precepts of the adult criminal law is that
forensic questions commonly raised in the criminal process [see Chapters 6–8] may now arise in juvenile cases.
Most importantly, as just discussed, if the proceedings are truly adversary, the question of juveniles’ ability to
assist in their defense is enlivened.
Consistent with that logic, approximately four-fifths of all states now address the issue of juvenile
competence to proceed via statute or case law. Most of these jurisdictions have adopted a test identical or
highly similar to that enunciated by the Supreme Court in Dusky v. United States101 and adopted in their
criminal codes.102 In applying the Dusky test, however, only about one-third of state courts have ruled that
juveniles appearing in juvenile court must have capacities similar to those of adults,103 and many of these cases
involved older juveniles who were at risk for transfer to criminal court.104
Other courts have indicated that the Dusky standard should be modified in juvenile proceedings. For
example, in S.W.M. v. State, the Wyoming Supreme Court held that “the statutory standards for determining
the competency of a defendant to stand trial . . . are also the standards to use in determining the competency
of a child to participate in adjudication proceedings in juvenile court, but those standards must be applied in
light of juvenile norms rather than adult norms.”105 Similarly, the Louisiana Supreme Court ruled that
“[w]here a juvenile is ‘incompetent’ primarily because of his tender years, it might be unnecessary and perhaps
unwise to substitute the full-dress examinations and hearings designed for adult incompetents, in place of
procedures designed especially to deal with youth and inexperience.”106 Conversely, a small number of states
identify immaturity as a common basis for incompetence.107 These latter states recognize that a juvenile’s
inability to understand and participate in legal proceedings may result not from mental illness or intellectual
disability, but from normal cognitive “limitations” related to incomplete and ongoing development (sometimes
referred to as “developmental incompetence” or “developmental immaturity”).

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 This latter situation raises difficult practical questions that have yet to be confronted. Suppose, for example,
that a 7-year-old accused of shoplifting is found to be too immature to understand the nature of the
proceedings or to assist counsel in preparing a defense. Is the adjudicatory hearing to be postponed until the
juvenile is, say, 14 years old and “restored” to competence? If so, what is to be done with the juvenile in the
interim?
Clinicians must be alert to these various issues when evaluating juvenile competence. Use of specialized
instruments for assessment of competence in adults [see § 6.07(c)] is generally discouraged in juvenile cases,
given the many developmental differences between adolescents and adults, and the absence of adequate data
regarding juveniles’ performance on these assessment tools [see § 6.08(b)].108 Of course, examiners may use
general psychological tests to measure a youth’s current emotional, behavioral, or cognitive functioning, but
these types of “findings” alone cannot support an opinion about competence to proceed.
Fortunately, there are at least two other useful tools for assessing juvenile competence. The first is Grisso’s
Juvenile Adjudicative Competence Interview (JACI).109 As described in more detail in § 6.08(b), the JACI
organizes evaluations of youth’s abilities around the capacities most relevant to participating in the legal
process, with particular attention to developmental factors that might influence competence. The second tool
is the Fitness Interview Test—Revised (FIT-R), which, like the JACI, is a semistructured interview and can
be administered in 30–45 minutes.110 The examiner using the FIT-R inquires into 16 separate competence-
related areas (e.g., understanding of current charges, understanding of legal process, appraisal of available legal
defenses, appraisal of likely outcomes, appreciation of possible penalties, capacity to communicate facts,
capacity to challenge witnesses) and then forms judgments about the examinee’s understanding of the
proceedings, understanding of possible outcomes, and ability to work with counsel. No scores are produced,
but preliminary research indicates that the FIT-R has adequate levels of interrater reliability [see § 6.07(b)
(2)].111 Moreover, moderate correlations have been obtained between age and intelligence on the one hand,
and judgments of adolescents’ competence-related abilities made by clinicians using the FIT-R on the
other.112 Unlike the JACI, however, the FIT-R does not include any components designed to ensure the
examiner’s consideration of developmental factors as they may affect competence-related abilities.113
In conducting competence evaluations on juveniles, knowledge of empirical findings on juvenile
competence may also be useful. As reported in § 6.08(b), research on a wide variety of populations indicates
that while 16- and 17-year-old juveniles typically have capacities that are more comparable to those of adults,
the majority of juveniles under the age of 15, as well as 15- and 16-year olds with compromised intellectual
abilities, show significant limitations in their ability to understand and participate in the legal process.114 The
most comprehensive investigation of this sort was carried out by Grisso and colleagues, who studied the
competence-related abilities of over 1,400 children and young adults, both in the juvenile system and in the
community; they used a number of measures, including a revised version of the MacArthur Competence
Assessment Tool—Criminal Adjudication described in § 6.07(c)(1). They found that competence-related
abilities did not vary by gender, ethnicity, socioeconomic status, prior experience with the legal system, or
psychopathy, but that these did vary significantly with age and intelligence. Juveniles between the ages of 11
and 13 were over three times more likely than young adults (between the ages of 18 and 24) to demonstrate
serious competence-relevant impairment, and juveniles 14–15 years of age were twice as likely to demonstrate
such impairment. They further found that youth under the age of 15 differed from adults in their ability to

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recognize risks inherent in different choices and consider the long-term implications of choices they made.115
In other words, juveniles at these early adolescent ages were particularly compromised in terms of “decisional
competence” (while less impaired in terms of “adjudicative competence”) [see § 6.01].
In light of these findings, one might be particularly concerned about the competence of juveniles who are
“direct-filed” to adult court without any judicial determination of competence. Yet Poythress and colleagues
found few competence-related differences between this group and youth tried in juvenile court; any
differences that did exist supported the conclusion that the direct-filed group performed better than the
juvenile court group.116
Although most states now require some inquiry into competence issues, the case law is divided about the
applicability of the insanity defense in juvenile cases.117 Those courts holding that the defense is unavailable
have usually argued that because juvenile respondents are not subject to criminal penalties, there is no need for
exculpation of those who are mentally disordered, and that in any event there is already provision for adequate
care and treatment under the juvenile code.118 Such a conclusion flies in the face of the logic underlying Gault
and its progeny. As Chief Justice Burger wrote for the Supreme Court in Breed v. Jones, “it is simply too late
in the day to conclude . . . that a juvenile is not put in jeopardy at a proceeding whose object is to determine
whether he has committed acts that violate a criminal law and whose potential consequences include both the
stigma inherent in such a determination and the deprivation of liberty for many years.”119 If criminal conduct
is to be excused because of insanity, it is hard to understand why the same defense should not also be available
to juveniles whose conduct is mitigated not just by mental disorder but by immaturity. Regardless of the law’s
approach to these issues, however, clinicians are unlikely to see many insanity defense claims in juvenile court.
They are even less likely to encounter a defense of diminished capacity [see § 8.03(b)] in juvenile court.
When, as is true in most jurisdictions, the disposition is linked to the offender’s needs rather than to the
offense, there is little strategic advantage to reducing guilt from, for example, first-degree to second-degree
murder.120

(b) Amenability to Treatment

In contrast to the infrequency with which they assess competence and culpability issues, forensic child
clinicians are likely to spend considerable time in the evaluation of respondents’ amenability to treatment.
Indeed, it may be fairly stated that amenability to treatment remains the overriding question in the juvenile
process. In many states, it is typically the key question at every pre- and postadjudicatory stage of the
proceeding, as well as at transfer hearings, and it remains important, although less so, even under the “just
deserts” model underlying the Juvenile Justice Standards.121
At intake, as noted earlier, a probation officer must decide whether to release the juvenile outright, to
release with conditions, or to pursue delinquency proceedings (i.e., to file a “petition”). Some of the issues at
this point are analogous to those presented in a criminal preliminary hearing (e.g., legal sufficiency of the
complaint). The most significant question, though, is usually whether the juvenile is amenable to treatment by
a community agency other than the court. Theoretically, this phase of the proceeding is designed to minimize
the number of youth who come before the juvenile court. There is substantial research evidence, however,
suggesting that the development of special programs for diversion often tends to “widen the net” of the

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juvenile court.122 The same youth who would have been adjudicated still are, and juveniles who would have
been released through police, prosecutorial, or court discretion are coerced into special treatment programs
under the aegis of the juvenile court.
Amenability to treatment is also likely to arise in the context of “dispositional bargaining,” the juvenile
equivalent of plea bargaining. Indeed, “for the attorney who represents accused delinquents, often the most
critical issue is devising an appropriate disposition.”123 As we noted in the discussion of mental state defenses,
the specific charge of which a juvenile is eventually convicted typically makes little difference in most
jurisdictions, if the juvenile is guilty of something and the case is not transferred to the criminal court. Unlike
the situation in criminal court, a defense attorney has won little if he or she bargains successfully for reduction
of an aggravated assault charge to simple assault in exchange for a juvenile’s plea of not innocent. Therefore,
whether at the formal intake conference or in negotiation with the prosecutor, bargaining in juvenile court is
likely to focus on the intrusiveness of the disposition. Will the prosecutor accept a relatively unrestrictive
treatment plan in exchange for a plea of not innocent? To have a strong hand in negotiation, the defense
attorney may need a clinical opinion about the respondent’s amenability to treatment using alternatives other
than incarceration. It is likely that clinicians’ involvement (at least indirectly) in preadjudicatory dispositional
bargaining is frequent.124
For some juveniles, the next point in the process at which amenability to treatment is at issue is at the
transfer or waiver proceeding. As noted previously, a juvenile above a certain age and/or charged with a serious
felony may be transferred (waived) to criminal court, provided that certain findings are made. Some of these
findings are not within the expertise of a mental health professional (e.g., whether probable cause exists to
believe that the juvenile has committed the felony, and whether transfer would serve the public interest).
Commonly, however, transfer hearings ultimately focus on general questions of the juvenile’s “best interests”
or “amenability to treatment” as a juvenile.125 As Standard 2.2 of the Juvenile Justice Standards frames the
issue, the ultimate question is whether the juvenile is “a proper person to be handled by the juvenile court.” To
reach such a conclusion, the court must find, by clear and convincing evidence, “[1] the likely inefficiency of
the dispositions available to the juvenile court as demonstrated by previous dispositions; and [2] the
appropriateness of the services and dispositional alternatives available in the criminal justice system for dealing
with the juvenile’s problems.” These questions obviously invite expert opinion about treatability—a fact
implicitly recognized by several courts.126
If the juvenile is not transferred and is found to be delinquent at the adjudicatory hearing, amenability to
treatment also always arises as an issue at the dispositional hearing. Because most jurisdictions still insist upon
rehabilitation as a primary basis for the juvenile justice system, amenability to treatment is ostensibly the
primary question in determining the disposition.127
If the juvenile is found not amenable to treatment in the community (as part of probation) and is
committed to a juvenile correctional facility or “training school,” in most jurisdictions the period of
incarceration will depend once again on a treatment assessment. Disposition is usually indeterminate (at least
as long as the individual remains young enough to be subject to juvenile jurisdiction), so that release will be
contingent upon the juvenile’s progressing to a point where he or she is found to be amenable to treatment in
the community. Finally, even if a juvenile is transferred and is convicted in adult court, recent Supreme Court
decisions indicate that treatability may need to be considered at sentencing. In Graham v. Florida,128 the

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Court struck down sentences of life without parole for juveniles who commit crimes other than homicides,
emphasizing (as Roper had in the death penalty context) that juvenile offenders manifest a unique “capacity
for change”; this capacity, in turn, makes them “most . . . receptive to rehabilitation” and is antithetical to life
imprisonment without the possibility of parole.129 Instead, the state “must . . . give [juveniles] some
meaningful, [‘realistic’] opportunity to obtain release based on demonstrated maturity and rehabilitation.”130
In Miller v. Alabama,131 the Court relied on this language in striking down mandatory life sentences for
homicides as well. In essence, one commentator has argued, these cases create a right of juveniles transferred
to adult court to have their rehabilitative potential considered in adult sentencing proceedings.132
In short, dispositional issues arise at every phase of the process except adjudication.133 Because amenability
to treatment remains the ubiquitous, practically dispositive issue in juvenile court, clinicians tend to play an
important role in the process.

(c) Consultation

Beyond their role as evaluators on specific forensic questions, clinicians potentially can be especially useful to
the legal system as consultants in juvenile court. We have already noted the potential usefulness of clinicians
in assisting attorneys in the development of treatment plans that may be used as negotiating chips. Forensic
clinicians often may be of even more help to attorneys in the process of “lawyering” with juveniles than with
the substance of the case itself. Such a role is especially important if courts are restructured along the
adversarial lines discussed in § 14.03(b)(3), and thus become more concerned with ensuring that juveniles
have the opportunity to assist actively in their defense.
The role of defense attorneys in juvenile court—not unlike their role in civil commitment [see § 10.06]—is
ambiguous and controversial.134 How much weight should an attorney give to the wishes of a 12-year-old
client in “zealously” defending the client’s interests? Still more basically, is it really the juvenile who is the
client? Should the attorney’s primary allegiance be to the juvenile or to the juvenile’s parents (who may be
paying the bill for the attorney’s services)? To the extent that a true adversary system applies in juvenile court,
the answer is superficially clear: The attorney zealously advocates the wishes of the juvenile respondent.
However, there is presumably some point of cognitive and social immaturity in the client, such that even the
most adversarial attorney begins to shift into a guardian-like role in which decisions about defense strategy are
made independent of the client’s wishes.135
Obviously, the less attuned attorneys are to their clients’ concerns and the less able the attorneys are to
communicate with youth, the more problematic their representation of juveniles becomes. The research
literature strongly suggests that such communication is a substantial problem in juvenile cases.136 Although
there is little evidence concerning what actually happens between attorneys and juvenile clients,137 it is well
substantiated, as previous discussion noted, that juveniles younger than 15 have on average less complete and
less accurate understanding of the legal process than do adult defendants.138 Juveniles are less likely to
conceptualize rights as entitlements applicable to their own cases,139 and they tend—perhaps realistically—to
perceive the juvenile court as inquisitory rather than adversary.140 Consistent with that view, juveniles
frequently do not appreciate the meaning of the attorney–client privilege.141 Moreover, juveniles often have
trouble comprehending the vocabulary in Miranda warnings and other legal contexts.142 These

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misunderstandings are not alleviated by previous experience with the law,143 contrary to the assumption of
many courts.144
When juveniles’ understanding of the process is so likely to be at least partially incorrect, it would certainly
be unsurprising to find that attorneys fail to appreciate their clients’ concerns fully and that juvenile clients fail
to make good use of their attorneys.145 In such a situation, mental health professionals who are knowledgeable
about children’s and adolescents’ understanding of the legal system could be very helpful in consulting with
attorneys about communication with their clients, and even in acting as “interpreters” or “legal educators” for
the juveniles.
Mental health professionals may also be useful adjuncts to attorneys in preparing juveniles for intake
hearings and court appearances. For example, the proportion of juvenile delinquents who have diagnosable
learning disabilities is known to be very high.146 Such youth are no more likely to commit delinquent offenses
than are other youth, as measured by both self-report and police contacts.147 But they are more likely to be
adjudicated delinquent. Presumably these youth appear less amenable to treatment (perhaps realistically), or
they are simply not very adept at appearing appropriately remorseful and respectful. In other words, they are
not skilled in manipulating the system. In such cases, clinicians acting as consultants might be very helpful to
attorneys in preparing clients for the legal process.
Finally, mental health professionals may take a consultant’s role more typical among expert witnesses:
evaluation of the evidence of the opposing side. In particular, clinicians may be able to assist in supporting (or
rebutting) assessments of amenability to treatment through discussion of the treatment outcome research on
juveniles with particular characteristics and presentation of the literature on clinical prediction. Similarly, in a
transfer hearing, the conclusions about a juvenile’s amenability to treatment often turn on findings about the
reason for failure of previous treatments. Therefore, a clinician may often be very helpful in evaluating the
adequacy and appropriateness of previous efforts to rehabilitate the juvenile.

14.05. THE NATURE OF THE EVALUATION

(a) The Process of the Evaluation

If mental health professionals do act as clinical evaluators of juveniles, they should be cognizant of the
difficulty of the enterprise, particularly in terms of eliciting meaningful communication from children charged
with acts of delinquency. This difficulty can arise for any number of reasons. First, juveniles whose
understanding of the legal process is inaccurate—which, as discussed previously, is a relatively common
phenomenon—may be suspicious about the purpose of an evaluation. Second, in our experience, although
adult defendants often wish to appear “sick” in the hope of facilitating less aversive dispositions of their cases,
adolescents almost never adopt such a stance. Indeed, a far more common problem is that juveniles “clam up,”
or, alternatively, try to present themselves as streetwise “tough guys,” lest clinicians conclude that they are
crazy. For many adolescents, including those whose misbehavior is more neurotic or impulsive than
characterological, the label of “delinquent” or “troublemaker” is less threatening to their self-esteem than
being considered “crazy” or “weird.”148 Finally, it must be acknowledged that the consequences of being found
amenable to treatment, particularly for those juveniles charged with minor offenses, may well be more

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intrusive—even if necessary or desirable—than a contrary finding. Thus juveniles may be realistically
unmotivated to cooperate with evaluations.
For these reasons, juveniles referred for evaluation typically require more “warming up” than adult
defendants, and it is especially important to spend a substantial amount of time going over the purpose of an
evaluation and the limits of confidentiality. Although allowance must be made for individual differences, it is
usually true that juveniles reveal more when the interviews are low-key and conversational rather than
confrontational. Moreover, juveniles are more likely to require “patching up” and reassurance at the end of the
interviews, especially when their offenses are masked symptoms of depression or concurrent with a depressive
disorder,149 and their evaluations therefore touch on especially painful and conflict-laden memories. In part
because more time usually must be given to establishing rapport and ending evaluations supportively, it is our
experience that juvenile assessments often take longer (e.g., require more interviews) than evaluations of adult
defendants on comparable questions.

(b) The Scope of the Evaluation

The greater typical length of juvenile assessments is not simply a matter of clinical technique. It also reflects
the greater typical scope of juvenile forensic evaluations.150 The evaluator may occasionally be asked to focus
on competence or insanity issues alone (in which case, in addition to § 14.04(a), we refer the reader to
Chapters 6, 7, and 8). But as we have discussed earlier in this chapter, evaluations in juvenile cases are usually
focused on amenability to treatment. Thus the juvenile court evaluator should be particularly aware of the
scope of this type of evaluation, which is defined by the legal meaning of treatment, the dispositions available,
and the dispositions most likely to work.

(1) The Meaning of “Treatment”

“Amenability to treatment” should not be read as “amenability to psychotherapy”; rather, it refers to

amenability to any treatments available, or even potentially available, in the juvenile court. As detailed later,
because the range of dispositions open to juvenile judges in most jurisdictions is very broad, the evaluation of
amenability to treatment should also be very broad. A thorough assessment of a juvenile’s amenability to
treatment should usually include an evaluation not only of personality functioning, but also of cognitive,
educational, vocational, and social needs in the context of the various systems (e.g., family, school, and
neighborhood) of which he or she is a part. As already noted, the assessment may also require evaluation of
previous treatment efforts.
A qualifier to this broad conceptualization of treatment is that the meaning of amenability to treatment
may vary, depending on the stage of the proceeding. Mulvey has articulated this point well:

Each different proceeding presents potentially different factors weighing on the amenability judgment, and no single decision equation
applies to all hearings where amenability is at issue. In the transfer decision, for example, the consideration of amenability is explicit (usually
defined by statute), and must be documented in the judge’s written decision. Also, the consequences of a judgment of nonamenability in this
hearing is that the juvenile is processed through the adult system. For transfer, the question for the clinical profession is, thus, usually one
whether the youth is treatable at all. In contrast, the diversion and disposition decisions present a much more implicit amenability question,
often framed by its interaction with several unstated but influential variables (e.g., concern for public safety and court philosophy). Clinical

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 information in these situations is deemed valuable for matching a juvenile with an appropriate service. The point is that, while pervasive, the
amenability determination and the clinical question related to it are far from uniform. Different court proceedings frame the decision
differently.151

Grisso has similarly argued that the implicit mental health screening questions also vary across the process:

The type and depth of mental health information that the system needs [vary] considerably from one step in the adjudication process to
another. For example, we must ask whether probation intake staff really need to know specific diagnoses for every youth who comes through
the door. Alternatively, might a brief screening instrument that provides a rough index of symptoms such as depressed mood and anger be
sufficient? Do detention staff need to know an adolescent’s diagnosis, or is it sufficient for them to learn that the youth is or is not a suicide
or assaultive risk? Is it sufficient for staff who are preparing to make disposition recommendations to only know about symptoms provided by
a brief screening instrument, or is something more needed?152

It should also be noted that at the transfer stage, the clinician performing the evaluation is effectively required
to assume that the juvenile is guilty in order to complete the assessment.153
These various points notwithstanding, the clinician asked to assess a juvenile’s amenability to treatment
should consider all the alternatives: those that are easily available (e.g., a local court diversion program); those
that are available but require extraordinary efforts (e.g., an individualized program fashioned from the
offerings of several agencies) or expense; and those that might work but are not presently available (i.e., a
particular kind of program that is matched to the offender’s needs but is unavailable in the community or the
state). It is true that the factfinder—whether a judge or an intake officer—may choose to consider only certain
kinds of alternatives at particular points in the proceeding (and, at least at the transfer stage, a lack of local
treatment programs may result in a waiver154). The clinician should recognize, however, that the possibilities
for treatment at all stages of the proceeding are typically very broad, and should permit the factfinder to make
the legal judgment of whether the level of effort or expense required for a particular plan of treatment is
justifiable. Such a stance is especially appropriate in jurisdictions in which the juvenile court exercises judicial
oversight over public agencies (or private agencies receiving public funds) serving youth and their families; in
these jurisdictions, the clinician may be very helpful to the court in identifying gaps in services to troubled
youth.
In short, the more specificity that is present in the conclusions to a report about the sort of program that
would aid a juvenile, the better. The seemingly ubiquitous recommendation for a “structured treatment
program” is practically worthless to a court trying to make a transfer or dispositional decision. Clinicians
should be similarly straightforward in reporting the level of juveniles’ amenability to particular treatments and
the level of confidence they attach to these opinions.
On the other hand, the probability of success required to warrant a finding of amenability at various stages
of the juvenile process is a legal judgment that should be vested with the factfinder. A related qualifier is that
the definition of success implicit in the judgment of amenability should also be left to the factfinder. It has
been our experience that in the minds of legal authorities, there is usually an implicit clause in the standard:
amenability to treatment, such that the juvenile will be less likely to recidivate. That is, as is true in the adult
context as well [see § 9.07], the court tends to be most interested in treatment as it affects legally relevant
behavior, and predictions should be made with respect to recidivism if there are data available on which to
base a valid prediction.
In that regard, the science and practice of risk assessment for violence and delinquency have advanced

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considerably since the 1980s. One of the fundamental requirements of youth risk assessments is that they be
developmentally informed.155 They should also be sensitive to the relevant differences between adult and
juveniles in justice settings, including varying base rates of violence, risk factors, behavioral norms, stability of
“personality” and trait factors, and psychosocial maturity.156 Clinicians should not apply existing adult risk
measures to children and adolescents. Instead, the risk and protective factors considered must be those most
appropriate to the age range of the intended target population.
Because unstructured, “seat-of-the-pants” assessments often result in inaccurate decisions, risk assessment
should be systematic.157 Without proper structure, mental health professionals often rely on factors that do
not have a demonstrated relationship to violence, and overlook some factors that do.158 Fortunately, as §
9.09(c) describes in more detail, several instruments show some promise in structuring and improving risk
appraisals in juvenile offenders.159
At the same time, clinicians must take care to ensure that instruments designed for, or validated with,
long-term predictions are not used to make short-term risk assessments. Furthermore, instruments intended
for classification of incarcerated juvenile offenders may have little direct relevance in a dispositional or transfer
assessment. Of course, care must also be taken to remember the rate of false positives, and to avoid bald
pronouncements of risk based on actuarial assessments that are not accompanied by an assessment of means
through which whatever danger is present can be reduced. The need for an ecological approach at all points in
the process should be paramount. Finally, risk assessments should be informed by the fact that adolescence is
the greatest risk period for criminal behavior,160 with the frequency of such behavior rising dramatically
between ages 7 and 17, and dropping off significantly between 17 and 30.161 Given the rapid change in risk
profiles, the truism that the best predictor of future behavior is past behavior, which informs many actuarial
instruments, is probably not true with juveniles.162 As Borum states, “a cross-sectional ‘snapshot’ of the
personality, thinking, emotion, and behavioral functioning of a child—as opposed to an adult—has less
predictive power and less likelihood of reflecting the child’s typical patterns.”163 The same cognitive or
volitional tendency at age 11 may manifest itself very differently at age 16; this process is known as heterotypic
(as opposed to homotypic) continuity.164
Although courts may often focus on recidivism and its reduction, clinicians should also feel free, given the
historic child-centered approach of the juvenile court, to make assessments of amenability to treatment in the
context of juveniles’ treatment needs even if there is no clear connection to the juveniles’ offenses [see the
Todd Merton report, § 19.12(a)]. The factfinder can then decide whether it is appropriate to consider such
treatment options in its findings about the juveniles’ amenability.

(2) Dispositional Alternatives

To reinforce the point about breadth of treatment available to the juvenile court, it may be useful to consider
in some detail the range of dispositions at the disposal of a creative juvenile court. The juvenile court in
Colorado, for example, may (1) commit a juvenile to the Department of Human Services; (2) confine certain
juveniles in county jail or community corrections; (3) place the juvenile in detention; (4) place the juvenile in
the legal custody of a relative or other suitable person; (5) place the juvenile on probation; (6) commit the
juvenile to a community accountability program; (7) place the juvenile in the custody of county social services;

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(8) place the juvenile in a hospital or other suitable facility for treatment; (9) impose a fine; (10) order the
juvenile to pay restitution; (11) order the juvenile to complete an anger management program; or (12) require
the juvenile to participate in a restorative justice program under certain circumstances.165
Even when there is no explicit authority for creative dispositions, juvenile judges generally have broad
authority to establish special conditions of probation for juveniles and/or their parents, as long as the
conditions are believed to be in the juveniles’ best interest. Indeed, the only limit to juvenile judges’ authority
over probationers may be the First Amendment prohibition on an order to go to church!166 Judges may even
be able to order agencies to submit treatment plans for the court’s approval.167 In some sense, the juvenile
court’s dispositional authority is limited only by a judge’s imagination and the finite nature of human and
economic resources.
Moreover, in the transfer context, even finite resources may not be a permissible consideration in the
determination of amenability to treatment. An argument can be made that the unavailability of resources is a
constitutionally indefensible basis for a finding of unamenability to treatment when such a finding subjects a
juvenile to possible criminal penalties.168 The explicit purpose of rehabilitation in many state juvenile codes,
bolstered by the Supreme Court’s recent jurisprudence, may even create a right to treatment requiring that
some rehabilitation effort be made for all delinquents.169

(3) What Works

To be meaningful, evaluation of amenability to treatment requires delineation of the context. As already

noted, the clinician needs to have an appreciation of the range of treatments actually or potentially available to
the court. A prediction of the outcome of treatment obviously also requires a knowledge of which treatments
work and for whom.
Almost four decades ago, a panel of the NRC lamented that no research had persuasively refuted the
hypothesis that “nothing works” in both juvenile and adult corrections.170 More recently, one of us acerbically
summarized the literature as indicating that “[t]he most well-validated treatment for delinquent behavior
remains getting older!”171
Fortunately, the state of knowledge about the potential efficacy of treatment is substantially more positive
today, even if the state of practice remains seldom matched to the state of the art. The most extensive meta-
analysis of delinquency treatment programs was conducted by Lipsey, who reviewed nearly 500 studies
through 1987.172 In nearly two-thirds of the studies (all of which were experimental or quasi-experimental),
the results favored the experimental group. Other, more recent investigations have also issued rebuttals to the
assertion that “nothing works.”173
Two caveats are noteworthy, however. First, the overall magnitude of the positive results has typically been
modest. Treatment programs for delinquent youth reduce general delinquent recidivism by an average of
approximately 10%,174 and the average treatment effect for the most serious and violent juvenile offenders was
about 6%.175 Nonetheless, even a modest effect of treatment can have substantial social and economic
benefits. The South Carolina Department of Youth Services has estimated, for example, that a reduction in
adult recidivism by juvenile probationers from 29 to 25% would result in savings equivalent to one-half of the
entire budget of the state’s juvenile justice system.176

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 A second important observation about Lipsey’s findings is that forms of treatment that were single-faceted
and ill matched to the development of skills in the natural environment (e.g., traditional counseling and social
skills training) generally were unsuccessful.177 In other words, nothing works that nobody should expect to
work. In particular, programs that relied on deterrence (e.g., “shock” approaches, such as Scared Straight)
typically had negative effects.178 Similar findings were reflected in a comprehensive review of 134 studies
examining the efficacy of a range of juvenile offender treatment programs and interventions. Dowden and
Andrews reported effect sizes ranging from –0.43 to +0.83, suggesting that while some programs are effective
in reducing recidivism, others have wholly unintended effects.179 More specifically, some popular programs
(e.g., Drug Abuse Resistance Education, peer-led programs) do not appear to result in significant reductions
in recidivism, while other courses of action, such as waiver to adult court, may result in higher recidivism
rates.180
Similarly, interventions that bring high-risk youth together (e.g., state training schools and other
institutional commitments) tend to be ineffective.181 A subset of youth in such programs (i.e., those with less
serious delinquency histories) show higher rates of recidivism as a result of associating with more antisocial
youngsters.182 As a 2013 NRC panel concluded, “facilities or programs in which justice involved youth are
placed become an important social context for their ongoing development, and these dispositions therefore
have a strong potential for either facilitating or undermining healthy maturation.”183
Accordingly, the panel added, “juvenile justice interventions, both residential and community-based, that
genuinely aim to reduce recidivism will seek to provide opportunity structures that can promote young
offenders’ development.”184 The programs that consistently have had at least moderately positive effects on
recidivism are those that are multimodal, skill-oriented, and based in the community (probably because the
juveniles are treated in a “real-world” environment). The designers of these interventions have become more
creative in addressing the multiplicity of factors involved in juvenile delinquency. In so doing, researchers have
been able to demonstrate positive effects—sometimes substantial effects—on recidivism even by “deep-end”
populations.185
Perhaps the best-validated program is multisystemic treatment (MST), which has been evaluated in more
than 25 randomized trials and quasi-experiments by Henggeler, his colleagues, and independent
researchers.186 MST is a relatively short-term (approximately three-month) intensive treatment delivered in
home and community settings. Relying on research on the multiple personal, familial, educational, and
socioeconomic factors involved in delinquency, MST therapists work to put a self-sustaining system into place
in which families are empowered to solve their own problems, but ongoing supports are also available in the
extended family and community.
MST is perhaps best summarized by its guiding principles:

1. The primary purpose of assessment is to understand the “fit” between the identified problems and their
broader systemic context.
2. Interactions should be present-focused and action-oriented.
3. Interventions should target sequences of behavior within or between multiple systems.
4. Interventions should be developmentally appropriate and should fit the youth’s developmental needs.
5. Interventions should be designed to require daily or weekly effort by family members.

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6. Intervention efficacy is evaluated continually from multiple perspectives.
7. Interventions should be designed to promote treatment generalization and long-term maintenance of
therapeutic change.
8. Therapeutic contacts should emphasize the positive and should use systemic strengths as levers for
change.
9. Interventions should be designed to promote responsible behavior and decrease irresponsible behavior
among family members.187

This approach has shown remarkable efficacy even with youth whose offending is chronic and serious—the
population that was first studied in community trials of MST. It has also been validated for use with juvenile
sex offenders, substance-abusing youth, adolescents with serious emotional disturbance (including youth in
psychiatric hospitals), adolescents with chronic illnesses (e.g., diabetes), and families in which child
maltreatment has occurred or parents have engaged in substance abuse. In one clinical trial with a chronically
offending sample based in a community mental health center, recidivism in the first year was reduced by
approximately one-half relative to the recidivism of youth receiving the usual juvenile justice services—a
difference that sustained itself across at least three years.188 Even more positive results were obtained in a
second trial in which graduate students in clinical psychology served as therapists. In that study, after four
years of follow-up, the overall recidivism for adolescents who completed MST (22.1%) was less than one-
third of that for those who completed individual treatment (71.4%), dropped out of individual treatment
(71.4%), or refused treatment altogether (87.5%), and less than one-half of that for those who dropped out of
MST (46.6%).189
A meta-analysis of 11 trials of MST showed a moderate effect overall (d = 0.55), with youth and families
treated with MST doing better than 70% of the control group.190 Illustrating the importance of treatment
fidelity, the average effect of MST administered by graduate student therapists (d = 0.81, a large effect) was
much stronger than its effects when provided by community therapists (d = 0.26, a small effect).191 Apart
from differences in level of supervision in university and community settings, impediments to optimal
application of MST occur when therapists wait for clients to come to the clinic, or when agency policies limit
therapists’ flexibility in work hours or creativity in development of sources of social support for their clients.
Although the work on MST provides perhaps the most extensive evidence that an intensive, individualized
home- and community-based treatment can substantially reduce delinquent behavior even among youth with
chronically serious offending, there are other, similar examples in the literature. In an early example, Massimo
and Shore demonstrated change sustained across 15 years among delinquents who received vocationally
oriented psychotherapy (a program that was similar to MST in intensity and scope, but focused on helping
youth get and keep jobs).192 Another series of experiments showed a substantial reduction in recidivism
among delinquent youth who, with their families, were the recipient of several hours of volunteer service per
week by undergraduates trained in empathic listening, behavioral contracting, and family advocacy.193
Similarly, a Norwegian school-based secondary prevention program that focused on changes in the school
itself as well as in individual children and their families showed marked and sustained reduction of school
aggression (bullying), fighting, victimization, vandalism, alcohol abuse, and truancy, as well as marked
improvement in school order, peer relationships, and attitudes toward school and schoolwork.194 Other,

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primarily systemic-oriented therapies show similar results.195

14.06. SPECIFIC AREAS OF TREATMENT EVALUATIONS

Given the range of dispositions available to the juvenile court and the outcome research showing that well-
conceived treatment often does work to prevent recidivism, what sorts of things should a clinician who is
asked to evaluate a juvenile’s amenability to treatment examine? The general answer, which should be obvious
by now, is anything relevant to determination of interventions (including interventions outside the mental
health system) that would assist in the juvenile’s adaptation to the community. The clinician will need to
adopt a broad, ecological perspective for evaluation. Therefore, the evaluation will often require an
interdisciplinary approach, or at least a thorough investigation of the juvenile’s behavior in home, school,
workplace, and neighborhood. It will often be helpful to enlist the assistance of the defense attorney or court
staff (depending on the stage of the proceeding and the source of the referral) in the gathering of information
for the evaluation.
The specific content of the evaluation will obviously vary, depending on the issues that seem to be
presented by the case and upon the orientation and style of the evaluation. However, we present some areas
that are common considerations: family, peers, community, vocational skills, and personality functioning.196

(a) Family

(1) Reasons for Assessment

There are three major reasons for conducting a thorough family evaluation. First, evaluation of the family is
often important in formulating the causes of the delinquent behavior, just as such an evaluation is usually
helpful or perhaps even necessary in nonforensic assessment of an adolescent.197 Family assessment becomes
central if the offense itself is familial—for example, if the juvenile is charged with violence against another
family member,198 if a family member is a prosecuting witness,199 or if the offense may have been perpetrated
by multiple family members. Second, parents and other family members can provide historical information to
supplement or corroborate the juvenile’s own account. Third, as we noted earlier, the juvenile court has
authority in many jurisdictions to order a family disposition.200 It also has the power to remove the juvenile
from the home. Accordingly, the clinician should be alert to the possibility of treatment of the juvenile
through family therapy or parent counseling.
The clinician’s assessment of the emotional supports available or potentially available in the family may also
inform the judge’s determination of the juvenile’s amenability to treatment while living at home. Such an
assessment may also provide ideas about external supports that would enable the parents to provide necessary
supervision and nurturance for their child. As noted in the preceding section, the most effective approaches do
not rely solely on traditional counseling or therapy, but instead integrate such techniques into a more
comprehensive intervention.

(2) Clinical Issues

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Generally, there are two themes in the literature about families of aggressive children. First, aggressive
children tend to come from families in which there are high levels of hostility and aggression.201 This
principle was vividly illustrated by data gathered from the Rochester, New York site of the Causes and
Correlates study, a landmark three-site, large-scale longitudinal study of the development of delinquency.202
A history of child maltreatment increased by 24% the likelihood that a youth would report violent behavior at
some point during adolescence. If partner abuse and a general climate of hostility (e.g., general conflict or
physical fighting) in the family also existed, the risk of violent delinquency was twice as great as among
nonviolent families.203 In short, aggressive children often live in homes in which there are high levels of
conflict, with aggression being a common mode of dispute resolution among family members.204 There are
frequently cycles of coercive behavior (e.g., parents are targets as well as instigators of coercive behavior) and
high levels of parental rejection and punitiveness, especially physical punitiveness.205 There is sometimes
direct parental reinforcement of aggression, especially aggression directed toward people outside the family.206
Second, aggressiveness in children is related to parental ineffectiveness and family disorganization.
Generational role boundaries are commonly blurred,207 and parents are relatively likely to respond positively
to deviant behavior and aversively to appropriate behavior.208 There are also high levels of father absence209
and, when both parents are present, conflict between parents.210 The significance of father absence apparently
lies largely in the associated level of supervision and the consistency of discipline, not in father absence per se.
The time that parents spend with their children is negatively related to incidence of almost all forms of
antisocial behavior.211 Time that parents spend with their children decreases time spent with delinquent
peers, increases availability of positive states, and diminishes acquisition of delinquent peers.212
To summarize, families of delinquents frequently benefit from measures that enhance the warmth of
relationships; provide nonaggressive models and clear, consistent norms for behavior; and increase parental
monitoring of children’s behavior. Such efforts are important to prevent the effects of other risk factors as well
as to diminish family problems themselves. A strong attachment to parents and close supervision by them are
the strongest correlates of “resilience” (i.e., avoidance of delinquency while at high risk for it).213
Nonetheless, clinicians should be careful not to limit their assessment to the domains most familiar to
mental health professionals (i.e., to personal and familial factors) and, by so doing, to circumscribe
dispositional planning. Although some phenomena of family structure and process have been consistently
shown to be correlates of delinquency, such variables by themselves are only modest correlates of
delinquency.214 More notable than the existence of these correlations is how weak they are. Contrary to what
is probably popular belief as well as clinical intuition, family interventions, without more, are unlikely to turn
the tide in development of a pattern of chronic offending.

(b) Peer Relations

By contrast, association with peers who are delinquents and drug users may be the most potent correlate of
delinquency.215 Indeed, delinquency is normative behavior among adolescents in some communities.216 Peer
influence increases in late childhood and early adolescence as parental influence begins to decline, peaks
around age 14, and gradually diminishes with development of self-identity and autonomy. Furthermore, peer
influence tends to be stronger in connection with antisocial behavior than with prosocial behavior, making it

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one of the most powerful risk markers for teens. Indeed, most initial forays into delinquency are facilitated by
peers, and most effective interventions address the element of peer influence.217 At the same time, delinquent
behavior within a group need not represent an antisocial personality structure; thus the prognosis is better for
delinquent youth who only co-offend (rather than instigate the offense),218 as is often the case when antisocial
behavior begins in adolescence.219
This is not to say, of course, that group delinquency is benign. Notably, gang crime accounts for a
substantial proportion of youthful offending in many metropolitan centers, especially among minority youth
in their teens and early 20s.220 Much of the public fear of juvenile crime probably stems from the marked
increase in gang violence in the 1990s, which occurred in part because of increasing availability of guns.221
Nonetheless, the image of well-organized gangs establishing “franchises” in multiple locations does not
match reality. Family migration, not gang relocation, and local genesis are the primary causes of growth of
gangs. Most gangs are poorly organized and transient; membership is “not simply a matter of rational choice
by career criminals.”222 Offending does tend to increase substantially while an adolescent is a gang member,
but membership for a few months is much more common than membership across a number of years.
Accordingly, long-term membership in a gang is an especially bad prognostic sign.223
In short, treatment programs that do not conscientiously promote relationships with nondelinquents are
setting an uphill course in attempting to prevent recidivism. Conversely, as the literature on gangs illustrates,
delinquent peer networks often can be disrupted; establishment of more positive peer relationships can be a
powerful factor in preventing recidivism.

(c) Community

The reasons for evaluating the community (as it interacts with the juvenile) parallel the reasons for assessing
the family. First, consideration of support systems (or lack thereof) in the community may suggest both
reasons for the delinquent behavior and resources for changing it. Neighbors, youth group leaders, and
teachers can be valuable informants about the juvenile’s behavior.
Moreover, long-term change in the juvenile’s behavior is unlikely to result unless there is also change in the
community. Some creativity may be necessary in identifying and making use of both natural helpers and
formal programs that might assist the juvenile and prevent further delinquency. Even if the juvenile is going to
be removed from the home or incarcerated, ultimately there must be attention to preparing the community for
his or her return. There needs to be sufficient assessment of the community to construct such plans.
Finally, as noted previously, in some jurisdictions the juvenile court has authority over public agencies. The
court may order agencies to provide services that might contribute to the rehabilitation of the juvenile.
Therefore, some assessment of the match between the juvenile and the community’s resources is useful.
It is known that neighborhood cohesion is negatively related to the prevalence of delinquency.224
Increasing concentration of poverty in particular neighborhoods and weakening of social networks supportive
of families throughout society—what might be described as “social poverty”—have coalesced into dangerous
situations in many American communities.225 With a level of alarm rarely found in such reports, a panel of
the NRC summarized in 1993 the socially toxic condition of many neighborhoods:

Over the past two decades, the major settings of adolescent life have become increasingly beleaguered, especially where the number of

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 families living in poverty has expanded and where their concentration in the inner cities of large urban areas has increased. Schools in such
areas do not have the resources needed to sustain their mission, school buildings are in disrepair, and there is often the threat of violence in
classrooms and corridors; neighborhoods are more dilapidated, and streets often physically dangerous; communities are also fraying as ever-
rising mobility destroys personal ties and traditional institutions, such as churches, and local businesses suffer from disinvestment; families
are more frequently headed by a single parent, often a working mother unable to obtain competent child care[,] or by two working parents
with less time for childrearing because they are striving to maintain their standard of living in the midst of a general decline in wages. Such
settings have become the crucible in which the lives of increasing numbers of America’s youth are being shaped.226

Obviously, the court’s ability to deal with such problems is limited. The limitation is not simply one of the
boundaries of technology. It is also a problem of paradigm: It is difficult to change the community when the
disposition is necessarily fashioned around the individual.227 Nonetheless, community juvenile advocacy
programs have had some success in reducing recidivism.228 Broad assessment will be necessary to construct
programs to reshape the social context in which particular juveniles live, and to promote community
responsibility for the well-being of youth.229 Judicial leadership can be important in that process.230
One issue that is noteworthy in the assessment of community resources is that the use of an amenability-
to-treatment standard is likely to result in more restrictive dispositions for juveniles from lower-income
communities. We do not mean to imply that poor people are untreatable. Indeed, there is substantial evidence
to the contrary, even with traditional verbal therapies.231 There can be little doubt, however, that the resources
for significant change—or simply for elaborate, if not necessarily effective, treatment plans—are less likely to
be available as the socioeconomic ladder is descended. At the same time, the level of drain on the resources
that are available is likely to be higher. Although the inequities of disposition arising from use of the
amenability-to-treatment standard may not be an immediate concern of forensic evaluators, they should be
considered by policymakers in the analysis of the proper bases for punitive interventions.232

(d) Academic and Vocational Skills

It is especially important to identify a juvenile’s academic and vocational skills, because such skills enable a
youth to adapt to mainstream society. This is not to say that improving achievement level will prevent violent
recidivism; obviously, academic and vocational skill levels on their face have little to do with such crime. On
the other hand, it can be said with some confidence that insufficient skills substantially increase the
probability of a juvenile’s getting into some kind of trouble.233 Whether treatment gains will be maintained
over time appears to be highly related to the seriousness of academic deficits that remain.234 As already noted
[see § 14.05(b)(3)], the programs that have demonstrated some success in treatment delinquency have had
strong educational/vocational components. Analogously, the only adult correctional programs that have
shown evidence of effectiveness are those that have combined work and financial support.
The power of school failure in setting a course for delinquency was illustrated by the finding in the Causes
and Correlates study that reading performance and retention grade are both related to delinquency even for
first graders.235 In this connection, it is important to note that the relationship between commitment to school
and delinquency is reciprocal.236 In other words, low commitment to school increases the likelihood of
delinquency in the subsequent year, and vice versa.
Beyond their obvious implications for establishing a niche in the community and particularly the school
itself, vocational and educational skill levels are likely to be significant in the design of dispositional plans for

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several other reasons. First, such skills are important in establishing a sense of self-esteem and active mastery
of conflicts.237 Second, the ability to verbalize conflicts (which can come from educational attainments)
contributes to delay in expression of impulses and probably to less reliance on physical aggression.238 Third, a
carefully designed educational treatment program may increase social skills and accuracy of social perceptions,
which may in turn improve interpersonal relationships and the ability to navigate through the juvenile justice
system itself.239 The ability to conceptualize behavioral alternatives and to plan accordingly may be a bridge
between cognitive development and personality functioning.240
To reach conclusions sufficiently refined to base an individualized educational program (IEP, described
further below) on them, it will generally be necessary to perform a formal psychoeducational assessment—one
of the few situations in which we believe psychological testing to be an efficient means of gathering data to
answer a forensic question. It is important in that regard not to stop with vocational interest scores, grade
levels, and IQs, but to develop a full picture of a juvenile’s learning style and the interaction of that style with
the juvenile’s emotional development and behavior.241 Such a profile will be more useful than global scores in
both understanding the juvenile’s fit with the environment and developing a specific treatment program.
In most cases, the attorney should see not only that the broad evaluation recommended here is used for
assessing the juvenile’s amenability to treatment and developing a dispositional plan in juvenile court, but also
that it is transmitted directly to the local school system. Under the Individuals with Disabilities Education Act
(IDEA) [see Chapter 17], an IEP paves a procedural avenue for ensuring that a juvenile receives appropriate
educational treatment, whether he or she remains in the local school system or is institutionalized. Official
identification as a pupil with special needs may also substantially reduce the juvenile’s future vulnerability to
suspension or expulsion for school misbehavior.242

(e) Personality Functioning

It is, of course, in the area of personality functioning that the assessment of a juvenile is most likely to
resemble a traditional mental health evaluation. We need not prescribe the format for such an evaluation, but
we do wish to offer several notes of caution. First and most important, it should be emphasized that the same
behavior may have multiple etiologies, even apart from environmental considerations. It has been our
experience that clinicians often generalize from preconceptions about delinquent behavior without really
examining the environmental and intrapsychic determinants of the behavior in particular juveniles. Even from
a psychodynamic perspective, serious delinquent behavior may be the product of group norms (i.e.,
“sociosyntonic” or “socialized aggressive” behavior), a “pure” character disorder, “overdetermined” neurotic
motivation (e.g., when the delinquent behavior is a depressive equivalent), or truly crazy thinking. This
complexity of causation probably contributes to the high rate of comorbidity (multiplicity of diagnoses) among
juvenile delinquents.243
Changes in physical capacities and ways of acquiring and processing knowledge can also influence a young
person’s mood and self-concept, which in turn can affect decisionmaking and behavior across a variety of
situations, including those involving crime.244 In particular, brain maturation continues into the early 20s.245
Young people have much greater activity than adults in the emotional and reactive brain regions (including
the amygdala and other structures in the limbic region), and much less activity and maturation in the planning

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and inhibitory ones. Parts of the brain that guide and control high-level cognitive functions such as reasoning,
problem solving, and inhibiting behavior are among the last areas to develop fully in the normal human.246 In
short, there may be substantial differences in the mental health treatment of choice, given these various
etiologies and symptom pictures.
A second note of caution is that clinicians need to be attuned to base rates of behavior. In that regard, note
that mental health professionals tend to ascribe more disturbance to normal adolescents than even clinical
groups of adolescents themselves report247—a point that bears special emphasis, given that delinquent
“careers” are usually short-lived adolescent phenomena.248
Third, we repeat the caution given earlier regarding the potential for changes in risk profiles among
adolescents. Although as a general matter risk heightens as records accumulate,249 desistance among
adolescents is quite possible.250 It is also important to note here that studies showing a significant relationship
between certain “psychopathic” traits (particularly those related to social deviance) and future (short-term)
conduct problems, aggression, and violent behavior must be taken with a grain of salt.251 Vincent and Hart
summarized the dilemma well:

We can reliably identify something in adolescence that is [at least phenotypically] similar to psychopathy in adults and that is associated with
future criminality. . . . The problem is that we have no strong or direct evidence the thing we are measuring is actually psychopathy per se, a
stable personality disorder that does not dissipate over time.252

Because of the heavily negative connotations of the “psychopathy” label, clinicians should be careful about
using this term in the juvenile context. The diagnostic ambiguity associated with psychopathy does not
necessarily strip the traits themselves of all clinical value, however. Widely used instruments that can help
assess this cluster of traits are available.253
Fourth, although we have noted that well-conceptualized treatment has a good track record even in cases
of serious delinquency, it must also be acknowledged that such a conclusion does not extend to traditional
psychotherapy.254 Furthermore, conclusions about particular juveniles’ amenability to treatment may have
little empirical basis. In short, clinicians must remember that the need for modesty about the limits of
expertise is no less present here than in other legal contexts. This admonition is especially important, given
the likelihood that juvenile courts may be unusually receptive to mental health professionals’ theorizing about
the causes of a particular’s youth transgressions and about the avenues that treatment might take.
Although there needs to be an individualized assessment, given the multiple specific causes of delinquent
behavior, some directions are especially likely to be fruitful. In particular, certain social-cognitive distortions
(notably tendencies to perceive hostile intent and to misperceive others’ thoughts, feelings, and intentions)
have been shown to be common in aggressive youth.255 Focused cognitive-behavioral treatments are available
to remediate such distortions and to facilitate thoughtful problem solving. Their efficacy in reducing
aggressive behavior, however, is not yet established,256 and attempts to establish constellations of personality
traits that cause delinquency have been “fraught with conceptual and methodological difficulties and have
generally yielded few meaningful findings.”257

14.07. SPECIAL JUVENILE POPULATIONS

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 (a) Very Young Offenders

Some populations of juvenile offenders present special issues. One such group is preadolescent offenders. Age
of onset of chronic antisocial behavior is sufficiently prognostic that the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV) differentiated between conduct disorder with onset during
childhood (prior to age ten) and conduct disorder with adolescent onset; this differentiation has been
maintained in DSM-5.258 The earlier that children come into the juvenile justice system, the more frequent
their involvement with the courts tends to be.259
At the same time, these correlations should not be used to “write off” children prematurely. Many juveniles
appear in court only once, and it is difficult to differentiate at first offense who will go on to chronic
offending. The nature of the initial offense has little validity as a predictor of recidivism, in regard to either
future court involvement at all or the nature of the offense if recidivism does occur.260 Moreover,
epidemiological research suggests that early intervention has good promise to interrupt budding delinquent
careers, and that very young offenders should receive special attention to avert development of a chronic
pattern of offending:

[R]esults reported here suggest that if problems in the family or school, or initial delinquency itself, are left unattended, a behavioral
trajectory is established that increases considerably the likelihood of a delinquent career. After some initial impetus is provided, the reciprocal
nature of the causal system tends to be self-perpetuating, and delinquency becomes more and more likely. On the other hand, however, if
early problems are successfully treated, then the same reciprocal quality of the system works to decrease the chances of delinquency and
increase the chances for conformity. For example, successful family intervention should both reduce delinquency and increase commitment to
school, which should begin a set of mutually reinforcing relationships that make delinquency less and less likely. The most important point
from an interactional perspective is that all of the causes of delinquency need to be identified and dealt with in a coordinated fashion to take
advantage of the reciprocal quality of the system, thereby establishing a behavioral trajectory that makes delinquency increasingly less
likely.261

Therefore, clinicians making an assessment of very young offenders for diversion or disposition should be
especially careful, so that they address the family, peer, school, and community characteristics that may be
conducive to development of a chronic offending pattern. Just as multiple problems can feed on each other to
build a context in which delinquent behavior is difficult to change, multiple positive changes can have a
multiplicative effect to enable resilient responses.262

(b) Sex Offenders

Although considerable attention has been directed at juvenile sex offenders by program developers and
policymakers in recent years,263 the research base remains thin. Some of the evidence thus far supports the
conventional wisdom that juvenile sex offenders have particularly pronounced emotional and interpersonal
deficits, and are often loners with high levels of anxiety and especially troubled, often abusive families.264
Starting from the assumption that the sexual dimension of such offending is grounded in a distinctive clinical
picture, the dominant approach to treatment of juvenile sex offenders has consisted of group therapy with a
cognitive-behavioral orientation and foci on development of skills in building relationships; differentiation
and management of emotions; and correction of myths about sexuality.265
The bulk of the evidence, however, is that this approach is too narrow. Juvenile sex offenders have more in

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common with other juvenile offenders (those charged with nonsexual offenses) than with adult sex
offenders.266 In a particularly extensive comparison, Ronis and Borduin compared the responses of juveniles
themselves, parents, and teachers across demographically matched samples of sexual offenders who had
peer/adult victims, sexual offenders with child victims, violent nonsexual offenders, and nonoffending
youth.267 Consistent with research on the causes and correlates of juvenile delinquency in general, they found
juvenile sex offenders to have a panoply of problems in their families, among their peers, and in their
schools.268 Summarizing, Ronis and Borduin noted that “juvenile sexual offenders, like juvenile nonsexual
offenders, had more behavior problems, more difficulties in family and peer relations, and poorer academic
performance than did nondelinquent youths. However, juvenile sexual offenders and nonsexual offenders did
not differ on any of the measures of individual or interpersonal adjustment.”269
These findings suggest that a “cookbook” approach to treatment of juvenile sexual offenders is apt to
fail.270 The scope and heterogeneity of these adolescents’ problems indicates that, as for other juvenile
offenders, a comprehensive, multifaceted approach in the community is necessary to obtain lasting results.
This impression is confirmed by the only clinical trials so far of treatment for adolescent sexual offenders.
In two small but long-term studies (N’s of 16 and 48, with 9 years of follow-up so far) of MST compared with
usual services, MST yielded dramatic and lasting reductions in arrests and days of incarceration for both
sexual and nonsexual offenses, self-reported offending, parent and youth mental health problems, youth
association with antisocial peers, and violence toward peers, with increased family cohesion and adaptability
and improved school grades.271 In a subsequent clinical trial with a two-year follow-up, the MST group
improved significantly over the control group in frequency of deviant sexual interests, delinquency, substance
use, youth-reported externalizing behavior, and out-of-home placement.272
Accordingly, although evaluations of juvenile sex offenders should include a focus on attributions, beliefs,
and attitudes about sexuality, and indeed relationships in general, clinicians should not overlook other
domains of life. To be effective, a dispositional plan, at least for an adolescent,273 must include attention to
the youth’s family and community.274

(c) Status Offenders

A 1991 review of the PsycINFO database failed to uncover a single article on status offenses or status
offenders published after 1988.275 With the attention given by federal agencies to serious offenders, concern
about status offenders had evaporated, notwithstanding the huge number of youth involved. That
nonchalance continues today. Repeating the search 25 years later, we uncovered only four articles since 1988
(only one since 2007) in peer-reviewed journals on the topic “status offense” or “status offender,” and none of
them reported empirical research.276
The lack of attention to status offenses is especially troubling given the links between status offense and
child protection jurisdictions. As Melton concluded in 1991: “It is only slightly overstated to say that, however
noble public officials’ intent may be, status offense jurisdiction often is de facto punishment for being
maltreated” (emphasis in original). He went on to say:

[Several facts underlie this harsh conclusion.] . . . First, research shows that status offenders do “look different” from juvenile delinquents.
The notion that status offense jurisdiction is a wise exercise in early intervention among antisocial youth is simply untrue. Research shows

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 that status offending is typically not a steppingstone to delinquency. Adolescent girls, many of whom have been subjected to sexual abuse,
enter the juvenile justice system much more often, proportionately, under status offense jurisdiction than as a result of delinquency petitions.
Moreover, they tend to be subjected to harsher dispositions than male status offenders.
Second, as illustrated by the examples of girls who run away from home as a defense against incest and of youth who are classified legally
as runaways but who really are “throwaways,” juvenile court jurisdiction in status-offense cases often could be sought instead on the basis of
child protection petitions. As one well known scholar on juvenile justice and child welfare has succinctly stated, “One of the most
problematic aspects of the juvenile justice system is its failure to distinguish offenders from victims. Nowhere is this more true than in the
case of sexual abuse and sexual behavior.” Indeed, the most striking commonality of status-offense cases is serious family dysfunction.
Although the proportion varies across jurisdictions, in many communities the majority of status offense petitions—in some cities, the vast
majority—are filed by parents against their children as “ungovernable” or “incorrigible.” Research shows that such petitions are especially
likely to result in detention and restrictive dispositions. It is hard to imagine how a quasi-punitive response to an individual child in the face
of such serious family conflict can be either fair or effective. The ineffectiveness of such an approach is confirmed by available evaluation
research, which shows that services based in juvenile justice often fail even in inducing youth to keep their appointments.
Third, the Children in Custody survey shows that thousands of children and youth charged with status offenses are confined each day
without even the pretense of a status offense. They are acknowledged to be incarcerated simply because they are victims, and an alternative
emergency placement is unavailable. . . .
Fourth, just as child protective jurisdiction has become the entry point for overburdened child welfare agencies in some communities,
status offense petitions often are misused as a means of obtaining services for troubled youth and families. In some communities, the court is
the first rather than the last resort for families desiring services. . . . Families should not have to resort to a stigmatizing determination of
their child’s “guilt” in a juvenile court proceeding in order to obtain help when they are having serious problems. . . .
[S]tatus offense petitions often are signs of failure of, or at least dissatisfaction with, the service system more than indicators of culpable
behavior of the individual youth. Such petitions are clear exemplars of blaming the victim—subjecting a child who already may have a
traumatic history to a quasi-punitive process because of a lack of adequate services.277

In short, evaluations for diversion or disposition of status offenders should include a special focus on family
issues. That assessment should incorporate an analysis of resources outside the family that might be useful in
reducing the youth’s conflict with his or her family and (especially in truancy cases) school [see Chapter 15].

14.08. DO THE MENTAL HEALTH AND JUVENILE SYSTEMS BELONG

TOGETHER?

Although this volume focuses primarily on evaluation in the legal system, it is appropriate in this chapter to
discuss the initiation of forensic evaluations. As we noted in § 10.10(a), the populations of youth in juvenile
justice facilities and in mental hospitals are to a large extent interchangeable. Indeed, in many jurisdictions,
juvenile courts are the primary referral agents for hospitalization of children and adolescents;278 the specific
route that difficult youth travel depends largely on the ease of entry into one system or the other,279 and on
other criteria that are unrelated to the juveniles’ treatment needs or the nature of their behavior disorders.280
Even in less serious cases, though, there is often such movement back and forth between the mental health
and juvenile justice systems. In particular, mental health and social service personnel sometimes use the
juvenile court—especially status offense jurisdiction—as a means of obtaining treatment for youth.281 There
may be various motives for this strategy: (1) The juvenile, the juvenile’s parents, or the whole family may be
refusing treatment; (2) public agencies may be slow to respond for bureaucratic reasons, in the absence of a
court order; or (3) the court may be perceived as an avenue for integrating services for a multiproblem family.
The practice of invoking juvenile court jurisdiction as a means of obtaining treatment is mistaken, albeit
benevolently motivated. Pragmatically, the experience of the juvenile court over the past century reveals the
necessity of constructing realistic goals for the court. As Mulvey has pointed out,282 courts are ill equipped to

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deal with family problems; the juvenile court is not in fact structured as a crisis intervention or mental health
agency. If the need is to make treatment available, it would be more effective and more efficient to focus
advocacy on the systems designed to provide human services, rather than to try to deflect courts from their
central purposes. Expansion of juvenile court jurisdiction will not result in a substantial increase in the
quantity or quality of services to children, youth, and families, but it will transform them into coercive
services,283 and it will subject their targets to added stigma from the label of “delinquent” or “families in need
of services.”284
These points apply also to the rapidly increasing number of “subspecialized” juvenile courts (e.g., juvenile
drug courts, juvenile gun courts, juvenile mental health courts, and truancy courts).285 If the intent is simply to
enhance the individualization of disposition, this care should be exercised in all cases that enter the juvenile
court, not just a few that manifest particular characteristics. Similarly, if the intent is to increase the quantity
and quality of services, the strategy would appear to be an inefficient one, even if understandable in light of
the ongoing dismantling of the juvenile court’s rehabilitative mission.
Although their assessment was written decades ago, we concur with Morse and Whitebread that mental
health professionals (and legal authorities) should welcome an increasingly legalistic model in juvenile law:

Although the [Juvenile Justice Standards] clearly . . . shifted [policy and practice] from the traditional discretionary, medical model of
juvenile justice, it is apparent nonetheless that mental health service providers will continue to play a substantial if considerably more modest
role. The opinions of mental health professionals will be sought regularly and they will be asked to provide services in both institutions and
community programs. Although informed consent will be required for most mental health services, we suspect that many juveniles will
accept such services if their benefits are patiently and clearly explained. Moreover, treatment under such conditions is not only more likely to
be successful, it is also more respectful of the juvenile’s autonomy and privacy than coerced treatment. Mental health professionals are vitally
concerned with respect for the individual and should therefore applaud a model that enhances autonomous, contractual relations between
helping professionals and their patients or clients. It is true, of course, that some juveniles who might have been helped by coerced treatment
will refuse such treatment. But, again, we suspect that such cases will be few in number and it is a price worth paying in order to develop a
freer and more respectful treatment regime. Mental health professionals will lose some power, but they are still charged with performing
those services they are trained best to provide—evaluating and treating patients who want and need such services.286

In short, we should be circumspect in grafting therapeutic objectives onto the justice system, despite its
historic rehabilitative mission. As we have noted elsewhere, “It is important to remember that a court—or a
problem-solving, quasi-legal substitute for a court—that does not fulfill the purpose of justice, whatever its
prowess in organizing treatment services, fails in the end.”287

BIBLIOGRAPHY

THOMAS GRISSO, DOUBLE JEOPARDY: ADOLESCENT OFFENDERS WITH MENTAL DISORDERS (2004).
SCOTT W. HENGGELER, DELINQUENCY IN ADOLESCENCE (1989).
SCOTT W. HENGGELER, MULTISYSTEMIC THERAPY FOR ANTISOCIAL BEHAVIOR IN CHILDREN AND ADOLESCENTS (2009).
Gary B. Melton, Taking Gault Seriously: Toward a New Juvenile Court, 68 NEB. L. REV. 146 (1989).
NATIONAL RESEARCH COUNCIL, LOSING GENERATIONS: ADOLESCENTS IN HIGH-RISK SETTINGS (1993).
NATIONAL RESEARCH COUNCIL, REFORMING JUVENILE JUSTICE: A DEVELOPMENTAL APPROACH (Richard J. Bonnie et al. eds., 2013).
THE OXFORD HANDBOOK OF JUVENILE CRIME AND JUVENILE JUSTICE (Barry Feld & Donna M. Bishop eds., 2012).
ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE (2008).
CHRISTOPHER SLOBOGIN & MARK R. FONDACARO, JUVENILES AT RISK: A PLEA FOR PREVENTIVE JUSTICE (2011).
YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE (Thomas Grisso & Robert Schwartz eds., 2000).

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CHAPTER 15

Child Abuse and Neglect

15.01. THE NATURE OF ABUSE AND NEGLECT PROCEEDINGS

(a) Philosophical Dilemmas

As discussed in Chapter 14, the separate system of juvenile justice has its roots in parens patriae doctrine; it
was intended to protect state interests in the socialization of children. An even more direct reflection of the
state’s interest and duty in protecting children is found in the invocation of state power on behalf of abused
and neglected children—an issue usually considered by the same specialized court that has jurisdiction over
delinquency cases. State action in cases of child maltreatment represents a direct conflict with family privacy
and parental liberty. As such, it is an area of the law in which the complex and sometimes confusing mixture
of interests among child, family, and state is starkly presented.1 For example, the state has an interest in the
socialization of the child to be a productive citizen, but it also has an interest in the preservation of the family
as a basic social institution and a buffer between the state and the individual. Similarly, parents are usually
assumed to act on behalf of the child, but their interests may be demonstrably in conflict with, or at least
different from, the child’s. The child has an interest in preserving his or her care and relationships (and
therefore in parental autonomy), but he or she may also have independent interests in liberty and privacy.
These philosophical issues, combined with difficulties in clearly and narrowly defining “abuse” and “neglect,”2
have made the question of the proper breadth of state jurisdiction and intervention in cases of child
maltreatment a hotly debated one for the past several decades.
The attempt to balance the state’s interest in protecting children with the parents’ interest in family privacy
is especially troublesome because of questions about the state’s ability to fulfill its interest. The documented
lack of stability in foster care in most jurisdictions3 frames the balancing of interests in terms of a dreadful
dilemma: Are children worse off in the care of abusing and neglecting parents, or in that of the state?4
Although there are no clear answers to this question yet, the fact that it is seriously posed indicates both the
depth of controversy about policies concerning child maltreatment and the widespread skepticism about the
ability of social service and mental health professionals to evaluate possible maltreatment validly and to treat
parents and children successfully.5 That the question continues to be debated a half-century after the launch
of the modern child protection system reflects the lack of resolution of long-standing fundamental issues in
the field.

(b) Stages of the Legal Process

These issues permeate each stage of abuse and neglect proceedings. The first such stage is the identification of
“abuse.” The most important development here are the abuse-reporting statutes that now exist in every state.6

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These laws usually require certain categories of professionals, most prominently mental health professionals,
to report any case in which they have reasonable cause to suspect that child abuse or neglect has occurred.
Therefore, initial state intervention, in the form of investigation and any emergency action, often takes place
on the basis of an assessment by a professional. This process has been subject to numerous criticisms.7 First, it
may disrupt ongoing services by requiring a breach of confidentiality.8 Second, although there can be no doubt
that reporting laws have “worked” in the sense that they have greatly increased the incidence of reported
cases,9 the magnitude of the increase has so overloaded protective caseworkers that it is questionable whether
any substantial degree of protection has been added.10 Finally, it is unlikely that the law has been applied
uniformly, because of some professionals’ resistance to reporting, uncertainty about the behavior that should
be reported, and differences among demographic groups in the degree to which they are subject to scrutiny by
mandated reporters.11
Once possible child maltreatment has been reported and investigated, there may be a second stage, in
which a petition is filed by a state attorney or social worker alleging that the child is in fact abused or
neglected.12 At the hearing that results (often conducted confidentially), there is an adjudication of whether
the allegation is valid—that is, whether there is a legally sufficient basis for the state to assume jurisdiction
over the child and family. It is at this phase that definitional problems and questions of the proper balance
between state and parental authority are most directly presented.
If the child is found to be abused or neglected, there is a third phase, in which disposition is determined.
There are two types of dispositional questions that may be posed. The first concerns temporary or time-
limited dispositions. The inquiry in that regard typically follows a best-interests standard, in which the court
has broad authority to require the parents to meet conditions designed to improve the quality of their care of
the child (e.g., to attend parent education classes to obtain vocational training) and to ensure the safety and
welfare of the child (e.g., the court may transfer custody to the department of social services). The second kind
of dispositional question, typically not raised until a later hearing, concerns permanent termination of the
parental rights. Besides consideration of the child’s best interests, termination typically requires specific
findings of the parents’ lack of amenability to treatment, and sometimes requires documentation that the state
has made diligent efforts to remediate the parents’ propensity to maltreat the child. If rights are terminated,
the parents become strangers to the child from the point of view of the law. The child becomes available for
adoption, and the parents lose even visitation rights.
Both kinds of questions demand difficult predictions of future parental behavior and the efficacy of
treatment, and both again present issues concerning the proper reach of the state and the proper deference to
parents. The latter issue is acutely presented in cases in which children are in foster care for extended periods
of time but are unavailable for adoption (because parental termination has not yet occurred), or are even
returned to parents with whom they have lived for little if any of their lives.

(c) General Policy Perspectives

(1) Perspectives on State Intervention

As the preceding discussion shows, the general problem of balancing state and parental interests, and the
corollary problem of the proper level of involvement of mental health professionals, arise at several points in

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the process. There is no consensus on these questions,13 and different answers may be given for different
stages of the proceedings.
Historically, for example, “child savers” have preferred to err on the side of ensuring protection for
children.14 They would therefore establish low standards for invoking state jurisdiction, and they would prefer
high levels of intervention once that threshold is crossed. In its modern version, proponents of this perspective
argue that deference to family privacy is ultimately destructive of families and is certainly not in the best
interests of children.15 The child savers advocate broad discretion and considerable resources for state social
workers, so that they can fashion and implement a comprehensive plan for rehabilitation of each family.
A second perspective emphasizes the potential harm (at least the lack of clear benefit) of state intervention
in many cases, the often arbitrary grounds for intervention, and the limits of available resources. Advocates of
this perspective argue for clearly defined, limited bases for state intervention, and they state a preference for
minimal intrusions upon family privacy once jurisdiction is taken.
A leading proponent of the latter view, Michael Wald,16 heavily influenced the relevant volume of the
Juvenile Justice Standards.17 The fact that this volume was never adopted as policy by the American Bar
Association (ABA), unlike almost every other volume of the Juvenile Justice Standards, is illustrative of the
deep and long-standing divisions about child protection policy. Nonetheless, the Standards remain important
authority for the advocates of limited state intervention in cases of child maltreatment.
State intervention under the Standards generally would be limited to situations in which there are findings
that a child has suffered (or is at substantial risk of suffering) serious harm, and that intervention is necessary
to protect the child from being endangered in the future [see § 15.02]. If this high standard is crossed, the
court would be required to choose the disposition that, while protecting the child from the harm justifying
intervention, is least invasive of familial privacy.
In work published after adoption of the Standards, Wald has reiterated that position. He argued that while
inadequate care—currently the predominant reason for families’ entry into the formal child protection
system18—ought to be a major concern for policymakers, it is not and cannot be effectively addressed in Child
Protective Services (CPS, the usual name for the program in state and county social service agencies that is
charged with investigating reports of suspected child maltreatment and developing related case plans).
Accordingly, Wald maintains, such allegations of neglect should be removed from CPS’s jurisdiction. Instead,
he argues, “a new approach is needed, one that focuses on providing a realistic system of services for engaging
and helping [multiproblem] families, a system that will be accepted by policymakers and the public.”19 This
alternative, positively oriented, nonstigmatizing approach would be embedded in the health and education
systems (specifically, expansion of infant home visitation, the Women, Infants, and Children [WIC]
Program, and Early Head Start), with integration through an evidence-based initiative for community
engagement in support of parents of young children.20
A third perspective was offered by Goldstein, Freud, and Solnit,21 who argued for maintaining a very high
threshold for state intervention (significantly higher than that of the Standards), but, once that threshold had
been crossed, for making it very easy to terminate parental rights. Relying on psychoanalytic theory, Goldstein
and his colleagues argued that the prime considerations in family policy should be preservation of continuity
in the child’s “psychological parent” and respect for the authority of that parent. They claimed that a child
needs the security of a parent who is perceived as omnipotent, and that the state is not equipped to meet the

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child’s emotional needs. Therefore, they would permit state intervention only under circumstances of the
direst and clearest harm to the child, with no prospective inquiry. That is, serious harm, or an attempt to do
such harm, must already have occurred before jurisdiction could be invoked.
When the child did enter foster care under this approach, foster parents could assume parental rights just
by showing that they were now the “long-time caretakers” of the child (i.e., they had cared for the child for at
least one year if the child was placed at less than three years of age, or two years if the child had been placed at
a later age).22 If the basis for removal had been sexual abuse or serious physical abuse, the natural parents
would not even have a right to a hearing on the matter.23
Of course, the three perspectives presented are not necessarily ideologically pure, and similar policies in
regard to the threshold and intensity of state intervention can be advocated for different reasons. For example,
Goldstein and colleagues’ preference for a high threshold for any state intervention into family life, but a low
threshold for termination of parental rights if the first threshold is crossed, was derived from a child-centered
belief about the nature of children’s relationships. In contrast, some conservatives who advocate a similar
policy do so on the bases of their strong “family values” and a corollary general distrust of government
intervention into family life, coupled with the belief that the behavior of some parents (e.g., parents who abuse
drugs) deviates so much from such values that those parents do not deserve the state’s respect for their
authority.24
Child protection policy thus rests on a complex set of normative and empirical assumptions, many of which
remain unsettled. Development of coherent policy is further complicated by often competing policy goals. For
example, policies and practices in response to spouse abuse (also labeled “intimate-partner violence”)—a
context that is in many ways analogous to child maltreatment—have been guided in recent years by the belief
that these cases involve a clear perpetrator and an obvious victim, and that the perpetrator must be controlled
through, for example, protective orders prohibiting the perpetrator from access to the family. Although this
model is sometimes applicable in cases of child maltreatment (notably when a family member is sexually
exploitive),25 the more common situation is that there is not a clear “bad guy.” Others may view particular
parents as inept, unmotivated, or cruel (indeed, so cruel that retribution may be justifiable),26 but the child’s
welfare may still demand that attention be given to strengthening the parent–child relationship.

(2) “Neighbors Helping Neighbors”: The New Paradigm in Child Protection

The historic perspectives on child protection policy have focused for the most part on the coercive application
of state power to prevent harm to individual children. Accordingly, the policy debate has rested largely on
questions about the circumstances justifying such intrusion, the scope of mandated reporting, and the
adequacy of the investigations triggered by such reports. All too often, public attention has been directed to
exposés of tragedies purportedly resulting from the incompetence or sloth of workers in CPS. The “answers”
thus have been framed as (1) a refined threshold for reporting so that the “right” cases come to CPS; and (2)
an enlarged and better-trained workforce, so that caseworkers will competently and diligently investigate the
reports and respond accordingly.
In more recent years, these answers have themselves come into question, at least in part as a result of the
arguments raised by the United States Advisory Board on Child Abuse and Neglect (ABCAN) in several

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reports published between 1990 and 1995.27 In its first report, ABCAN noted the stunning incidence of child
maltreatment, the catastrophic failure of the child protection system in all its elements, and the costly
consequences of this failure, calling it a moral disaster that rose to the level of a national emergency.28
Although ABCAN’s stark description of the problem’s scope helped focus the issue, its biggest
contribution was its analysis of the roots of the emergency. Noting that the failure to protect children went far
beyond CPS programs, ABCAN traced the emergency not to inadequate resources for CPS, but instead to
intrinsic problems in the system’s design:

The most serious shortcoming of the nation’s system of intervention on behalf of children is that it depends upon a reporting and response
process that has punitive connotations, and requires massive resources dedicated to the investigation of allegations. State and County child
welfare programs have not been designed to get immediate help to families based on voluntary requests for assistance. As a result it has
become far easier to pick up the telephone [and report abuse than] to request and receive help before the abuse happens. If the nation
ultimately is to reduce the dollars and personnel needed for investigating reports, more resources must be allocated to establishing voluntary,
non-punitive access to help.29

ABCAN contended that even if policymakers patched the existing child protection system, the emergency
would recur unless the question facing caseworkers was transformed from “What happened?” to “What can we
do to help?” Similarly, ABCAN argued, policymakers must shift their primary focus from the question of the
grounds for coercive state intervention to the fundamental concern: What can society do to prevent or
ameliorate harm to children?30
To achieve such a shift, ABCAN recommended a radical solution: “Once the emergency is brought under
control, the Board believes that the nation should commit itself to an equally important goal: the replacement
of the existing child protection system with a new, national, child-centered, neighborhood-based child protection
strategy” [emphasis in original].31 To effect this strategy, ABCAN advocated a new national child protection
policy32 and a corollary shift in the nature of government’s involvement in the protection of children to
facilitation of “comprehensive community efforts to ensure the safe and healthy development of children.”33
The cornerstone of ABCAN’s proposed strategy was signaled in the title of the report presenting it:
Neighbors Helping Neighbors.34 ABCAN argued that, whether for prevention or treatment, a strong emphasis
should be placed on the design of communities to promote mutual assistance—neighbors watching out for
each other’s families. ABCAN was influenced by research showing the potency of both economic and social
support—neighborhood quality—in preventing child maltreatment [see § 15.03(d)(2)].
In research completed over the last two decades, ABCAN’s proposed national strategy has been tested in a
large foundation-funded quasi-experimental trial (i.e., using matched comparison communities) in a portion
of the Greenville, South Carolina metropolitan area, in an initiative called Strong Communities for
Children.35 With facilitation by a single outreach worker per suburb or area, whole communities joined
together for approximately seven years to “keep kids safe” by providing informal support to their families. In
particular, the participating communities pledged to ensure that “every child and every parent would know
that if they had reason to celebrate, worry, or grieve, someone would notice, and someone would care.” The
participating organizations represented all sectors of the community: churches and other religious
organizations, businesses, day care centers, fire and police departments, health centers, housing developments,
local governments, schools, and so on. The focus was on development of new norms across the community
consistent with expression of “hospitality” (in Biblical terms, “love of strangers”)—in effect, “leaving no family

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outside” by following a principle that “people shouldn’t have to ask.”36 In an area that then had about 125,000
residents, more than 5,000 volunteers and more than 500 community organizations joined in support of the
initiative. The volunteers were remarkable for their diversity in ethnicity, gender, age, and socioeconomic
status, and the communities included urban neighborhoods, small towns, suburbs, and rural areas.
In comparison with matched communities across three years, randomly selected parents of young children
in the participating communities showed significant changes in the expected direction for social support,
collective efficacy, child safety in the home, observed parenting practices, parental stress, parental efficacy,
self-reported parenting practices, rates of officially substantiated child maltreatment, and rates of child injuries
suggesting child maltreatment.37 Reductions in child maltreatment among young children were observed in
both low- and high-resource communities, but mobilization was greater in low-resource communities, which
also showed greater changes in neighboring, receiving help from neighbors, and observed positive parenting.38
Trials are now underway to test the feasibility of Strong Communities in diverse cultures and
communities.39 If the ABCAN approach becomes more widely adopted, there are apt to be several important
implications for forensic clinicians. First, in many instances, decisionmaking about help for families in which
child maltreatment is suspected to have occurred is apt to shift away from formal legal processes [see §
15.04(f)]. Evaluators may find themselves in new roles in which they collaborate with families to understand
the risks that may be present and to design ways to mitigate the danger. Second, mental health professionals
will be involved with new community structures for assessment, planning, and implementation of voluntary
service plans [see, e.g., § 15.04(a), describing requirements in some states for community child protection
teams]. Third, the menu of services is likely to expand, with an emphasis on design of sustainable informal
support networks. Accordingly, clinicians will be challenged to develop alternatives that are truly ecological—
that integrate psychological and social strategies in the design of everyday settings to ensure safety for
individual children [see § 15.03(c)].

15.02. LEGAL DEFINITIONS OF CHILD MALTREATMENT

Although it is clear that the Zeitgeist has been shifting in the field of child protection, it is also clear that there
still is no consensus among authorities about even the overall framework that should guide legal policies on
child maltreatment. There is basic disagreement over the proper balance among interests at both the
invocation of state authority and the dispositional phases. This philosophical disagreement—in combination
with conceptual unclarity among mental health professionals about the nature and etiology of child
maltreatment [see § 15.03]—has led to often vague and disparate standards for the types of “abuse” and
“neglect” that can lead to state intervention.

(a) Physical Abuse

All jurisdictions provide for state intervention to protect physically abused children. They differ substantially,
however, in terms of the degree to which the finding of abuse is based on value judgments about what
behavior is abusive, as well as the nature of the proof required. In view of the frequency of corporal
punishment as a disciplinary technique in American families,40 and the perception that it is relatively more

619
common in particular sociocultural groups,41 the application of broad standards raises the possibility of
arbitrariness and the probability of unreliability.
Recognizing this problem, the drafters of the Juvenile Justice Standards proposed a standard that is much
stricter than in most state statutes (although not as limited as Goldstein and colleagues advocated):
Intervention is permitted in this context only if “a child has suffered, or there is a substantial risk that a child
will imminently suffer, a physical harm, inflicted nonaccidentally upon him/her by his/her parents, which
causes, or creates a substantial risk of causing disfigurement, impairment of bodily functioning, or other
serious physical injury.”42 The commentary to the standard indicates that its “intent . . . is to prevent injuries
such as broken bones, burns, internal injuries, loss of hearing, sight, etc. It is not intended to cover cases of
minor bruises or black and blue marks, unless the child was treated in a way that indicates that more serious
injury is likely to occur in the future.”43 In making that judgment, the drafters emphasized that it “does not
imply acceptance of corporal punishment as a means of discipline. Rather, it reflects the judgment that even in
cases of physical injury, unless the actual or potential injury is serious, the detriment from coercive
intervention is likely to be greater than the benefit.”44
Like the Standards, many state statutes require a finding of “harm” or at least “danger of harm” as a result
of intentional infliction of physical injury; the abusive act alone is not enough. In some of these states, the
level of harm required is also similar to that of the Standards. For example, New York’s definition of an
“abused child” includes any child whose parent or guardian “inflicts or allows to be inflicted upon such child
physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or
protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or
impairment of the function of any bodily organ.”45 There is a similar open-ended quality to some of the other
statutes, which at first glance seem to conceptualize physical abuse in terms of intentional action resulting in
serious bodily harm. Wyoming, for example, defines physical injury as “any harm to a child including but not
limited to disfigurement, impairment of any bodily organ, skin bruising if greater in magnitude than minor
bruising associated with reasonable corporal punishment, bleeding, burns, fracture of any bone, subdural
hematoma or substantial malnutrition.”46
Most problematic, however, are those statutes that expressly call for a value judgment about the limits of
acceptable physical punishment independent of its actual or probable harm. Some states include “excessive
corporal punishment” in the definition of abuse.47 Courts are divided on whether such standards are so vague
as to be violative of due process.48

(b) Physical Neglect

Every state also permits intervention if there has been “neglect” of the child. Here the variations are even
greater.
The Juvenile Justice Standards require a finding of serious physical harm before a child can be adjudicated
to be neglected. That is, as with the Standards’ definition of abuse, it must be found that

a child has suffered, or . . . there is a substantial risk that the child will imminently suffer, physical harm causing disfigurement, impairment
of bodily functioning, or other serious physical injury as a result of conditions created by his/her parents or by the failure of the parents to
adequately supervise or protect him/her.49

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The drafters of the standard made clear that they opposed state intervention on the basis of “inadequate”
parental behavior, which they viewed as both too vague and too likely to result in overintervention.50 But state
neglect statutes frequently require only that the state show that the parents have failed to provide “proper
supervision.”51 Some states even invoke jurisdiction if there is sufficient “immorality” to make the home
unfit.52
A continuing thorny issue relates to circumstances in which children lack adequate care (e.g., safe housing)
because their parents do not have sufficient income to meet those needs. Even proper supervision is
problematic in this regard. Consider, for example, a parent making minimum wage who might leave
elementary school children unsupervised during the time between the parent’s departure for work and the
children’s departure for school. On the one hand, requiring a finding of parental fault would obviate the
protective purpose of family law. Arguably, it should not matter why the children were left unsupervised. On
the other hand, the investigatory nature of the CPS process and the punitive overtones of its remedies imply a
fault dimension before a parent can be found neglectful.53 In view of the strong relationship between poverty
and neglect,54 Wald’s question about the usefulness (or, to the contrary, arbitrariness) of neglect jurisdiction
for multiproblem families should be given careful consideration.55

(c) Sexual Abuse

Sexual abuse of a child by a parent or parental figure is also a typical basis for intervention. Child sexual abuse
was “discovered” in the early 1980s,56 and reporting of sexual abuse increased dramatically.57 The
conceptualization of sexual abuse also changed, so that criminal prosecution became common and even
routine in some jurisdictions.58
Reflecting the “prediscovery” Zeitgeist, however, the drafters of the Juvenile Justice Standards Relating to
Abuse and Neglect (who did their work in the mid-1970s) were ambivalent about application of family court
jurisdiction to this type of abuse. Although the Standards would permit coercive intervention in all cases of
sexual abuse,59 an alternative standard was offered to require a finding of serious harm, on the theory that the
legal system’s intervention might often engender more distress than the sexual abuse itself.60 Furthermore,
“sexual abuse” was not defined in the Standards, because of a preference for using the definition of the term
found in a state’s penal code.61 Although some states do define the term in their criminal statutes,62 others do
not,63 and some of the states that specifically include sexual abuse in their civil child abuse statutes do not
define it there or in any other law.64
Commercial sexual exploitation and sex trafficking of minors are problems that only recently have attracted
widespread attention. Most commonly, minors who engaged in sexual activity as part of commercial
transactions were considered to be criminal (e.g., prostitutes) or status offenders (e.g., runaways). However,
reflecting more recent attitudes, a panel of the National Academies of Sciences started from the premise that
“commercial sexual exploitation and sex trafficking of minors should be understood as acts of abuse and
violence against children and adolescents.”65

(d) Emotional Abuse and Neglect

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Emotional abuse—also known as “psychological maltreatment”66—is the most controversial aspect of child
protection jurisdiction, probably because it is so difficult to define. Although one can imagine cases in which
most people would agree that there was emotional abuse (e.g., locking a child in a dark closet for prolonged
periods of time), there is no such consensus for most questionable parental practices. It is probably also true
that in many (perhaps most) circumstances where there is a consensus that emotional abuse is present, there
would be other grounds for invocation of jurisdiction.
Another problem is that establishing the basis for emotional harm presents difficult problems of proof.
How does one really know whether a child’s maladjustment is the result of parental practices? It is clear in this
regard that many children develop appropriately in spite of growing up with parents who are relatively
unresponsive or who have erroneous ideas about children’s needs [see § 15.05]. Moreover, given the myriad
parental behaviors that may adversely affect child development, do we really want to expand jurisdiction to the
range of situations that may be psychologically unhealthy?67 If not, what is to be the decision rule for
determining whether an unwise practice is also an abusive practice that warrants state intervention to protect
the child?
For these reasons, the Juvenile Justice Standards would permit invocation of state authority in cases of
emotional abuse and neglect in only a single narrow situation:

[when] a child is suffering serious emotional damage [not necessarily as a result of parental actions], evidenced by severe anxiety, depression,
or withdrawal, or untoward aggressive behavior toward self or others, and the child’s parents are not willing to provide treatment for
him/her.68

In contrast, most states providing for intervention in cases of emotional abuse and neglect tend to use
broad definitions of “mental injury” that offer little guidance. Wyoming, for example, permits state
intervention when parental action results in “an injury to the psychological capacity or emotional stability of a
child as evidenced by an observable or substantial impairment in his ability to function within a normal range
of performance and behavior with due regard to his culture.”69

(e) Conclusions

Clearly there is great diversity in statutory definitions of abuse and neglect. Also, there is often sufficient
vagueness in state statutes to raise constitutional questions.70 Vague or value-laden definitions unfortunately
often result in arbitrary application. There is solid empirical evidence of gross unreliability in perceptions of
child maltreatment, with the groups most likely to be involved in initial investigations (i.e., social workers and
the police) being those that tend to have the most expansive concepts of child abuse and neglect.71 Even
within the social work profession, though, there is substantial variation in understanding of the definition of
child maltreatment, as a result of differences in the settings in which social workers are employed and in their
theoretical orientations.72 We turn now to examination of these clinical concepts.

15.03. CHILD MALTREATMENT AS A CLINICAL PHENOMENON

(a) The “Discovery” of Child Abuse

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Although the juvenile court has had jurisdiction over poorly supervised children since its inception, the
development of the special system of legal regulation and social services for abused and neglected children is a
rather recent phenomenon. The major impetus for this development came from an article published in the
Journal of the American Medical Association in 1962.73 In that article, Henry Kempe and his colleagues
identified the existence of “battered-child syndrome” as a clinical condition. There was a considerable outcry
thereafter, and all states enacted mandatory reporting laws over a four-year period in the mid-1960s.74
Since then, not only has the number of reported and substantiated cases grown at an astronomical rate,75
but the range of parental behavior at issue has steadily expanded. New public concern with sexual abuse added
an additional spurt of cases in the 1980s and led to many new laws and programs as criminal prosecution
became more frequent.76
Today, as elaborated in the remainder of this section, the typical child protection case does not comport
with the image of the battered child. Rather than being victims of malicious beatings or even of sexual
exploitation, three-fourths of the children entering the child protection system are believed to have been
neglected.77 Although the risks to their health and welfare are often substantial, they typically live in families
with multiple complex and serious problems. Solving those problems is a substantially more difficult matter
than “just” ensuring that children are safe from brutal family members. Meanwhile, a “backlash” persists in
which many critics argue that the child protection system is prone to overreaching, sometimes with life-
shattering results.78
We emphasize these shifts in scope here because the “eye-of-the-beholder” problem is as real for the social
welfare and mental health professions as it is for the law. Child maltreatment is certainly not new; indeed,
trends across generations have been toward more humane treatment of children and more recognition of
children as persons.79 The identification of child maltreatment as a clinical entity, however, is relatively new.
We do not wish to minimize the realities of abuse of children, but it is important to recognize that child abuse
and neglect are social constructs that have entered the behavioral sciences only in the past half-century.

(b) Social Science Definitions

Historically, definitions of child maltreatment used by social scientists have tended to be substantially broader
than those in law, at least in the more carefully drafted statutes, and even more diverse. Parke and Collmer
advocated a culturally relative definition: “non-accidental physical injury (or injuries) that are the result of acts
(or omissions) on the part of parents or guardians that violate the community standards concerning the
treatment of children.”80 Also using a culturally relative but still broader definition, the Garbarinos defined
child maltreatment as including “acts of omission or commission by a parent or guardian that are judged by a
mixture of community values and professional expertise to be inappropriate and damaging.”81 They further
defined emotional abuse to include parental behavior that hampers the development of social competence by
penalizing a child for normal exploration and expression of affect, discouraging attachment, lowering self-
esteem, or discouraging relationships outside the family.82 Another well-known pioneer in research on child
maltreatment, sociologist David Gil, defined physical abuse as “the intentional, non-accidental use of physical
force, or intentional nonaccidental acts of omission, on the part of a parent or caretaker interacting with a
child in his care, aimed at hurting, injuring, or destroying that child.”83 Gil’s definition would appear to

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include all corporal punishment.
More recent definitions are generally just as broad and culturally relative. A 1989 consensus conference of
the National Institute of Child Health and Human Development recommended that maltreatment be defined
as “behavior towards another person, which (a) is outside the norms of conduct, and (b) entails a substantial
risk of causing physical or emotional harm. Behaviors included will consist of actions and omissions, ones that
are intentional and ones that are unintentional.”84 In 2004, two commentators summed up the definitional
challenges by declaring that there is still “no general consensus regarding the definition of the physical abuse
of a child, either among scholars or across state child abuse reporting legislation.”85
The broad and inconsistent definitions used by social scientists are problematic not only because of the
difficulty in applying vague language. They are troublesome also because of their potential influence on
helping professionals, who may apply even broader standards than the law permits. Inconsistent definitions
also make comparisons across studies difficult, and overly broad definitions render research questionably
applicable to legal policy. The National Research Council (NRC) Panel on Research on Child Abuse and
Neglect was so disturbed by such problems that it devoted a full chapter to definitional issues,86 and its first
recommendations were for development of a consensus on research definitions and corollary “reliable and
valid clinical–diagnostic and research instruments for the measurement of child maltreatment.”87

(c) Social Science Perspectives

Probably of even more consequence than the specific definitions used by social scientists are the overall
perspectives adopted, which tend to shape both the standards for intervention and the kinds of interventions
employed. Psychodynamic theorists emphasize the significance of the personality traits and personal histories
of parents who neglect or abuse their children. Policy grounded in such a perspective is likely to rest on a
determination of their treatability, and interventions are apt to be individually focused counseling or
psychotherapy programs aimed at the parents. Professionals with a social learning orientation are likely to give
principal attention to parental skill deficits and maladaptive attributions, and to organize behavioral training
programs (“parent education”) and therapies designed to correct erroneous beliefs and expectancies that
parents may have. Sociologically oriented theorists regard child maltreatment as a societal problem reflecting
the level of violence in the society, the status of children and women, and the unequal distribution of wealth.
They are apt to direct most of their energy into the development of large-scale preventive programs.
Practitioners and policymakers are still likely to view child maltreatment from one of these perspectives.
The evidence is now clear, however, that child maltreatment is multiply determined.88 There is a need to
understand the social factors in interaction with individual differences in psychological traits. Ecological
theorists offer such a complex perspective.89
Ecological theorists emphasize the fit between the person and the environment. The environment itself is
recognized to consist of several levels, each in interaction with the other: (1) the “microsystem,” the immediate
social context of the child (e.g., the family); (2) the “mesosystem,” the connections among microsystems of
which the child is a part (e.g., an older sibling’s accompanying the child to school); (3) the “exosystem,”
external influences on the child’s life (e.g., the flexibility of the father’s place of employment, enabling him to
set aside time for the family); and (4) the “macrosystem,” the broad cultural blueprint influencing the structure

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and processes of lower-level systems (e.g., the overall concept and status of childhood). Thus, although
ecological theorists do not deny the effects of individual differences in personality and skills, they look to
diverse and complex social factors to determine how those individual differences will be expressed.
For example, the effects of unemployment on a family might be expected to vary with the following factors,
among others: (1) the parents’ ability to respond to frustration (microsystem); (2) the degree of interaction
between the family and social resources (e.g., friendly teachers) that might help to alleviate stress
(mesosystem); (3) the availability of help in finding jobs (exosystem); and (4) the national economic policy in
regard to tolerable levels of unemployment (macrosystem). Therefore, to say that unemployment—or poor
impulse control—is the cause of child maltreatment is to oversimplify a complex social phenomenon.
Assessment of only one level or aspect of the situation will be short-sighted, and intervention directed at only
one level or aspect is unlikely to have substantial effects.
Ecological theorists also recognize that cause–effect relationships are rarely unidirectional, although
differentials in power may make effects in one direction stronger than the other. For example, it is obvious
that in most families most of the time, parents have more effect on children than the converse. Parents
generally have greater control over reinforcements and greater physical strength, cognitive skills, social
experience, and behavioral repertoire.90 It is also clear, however, that the presence of children changes the life
of adults, and that the care of some children is much more demanding and stressful than the care of others.91
Moreover, these effects are likely to be mediated by external influences (e.g., the parents’ support system) that
may not be directly involved with the child.92
It is noteworthy in this regard that the antecedents of neglect and physical abuse appear to be largely the
same.93 Both neglect and physical abuse commonly take place in socially toxic situations in which economic
and social poverty combine with parental inadequacy and child vulnerability. The relationship of sexual abuse
to risk factors is not as strong,94 probably because of the dynamics of exploitive or predatory behavior—a
dimension that generally is not present in other forms of child maltreatment. Nonetheless, the situation in
sexual abuse cases is often also noteworthy for its complexity:

Empirical studies have found that families of both incest and nonincest sexual abuse victims are reported as less cohesive, more disorganized,
and generally more dysfunctional than families of nonabused individuals. The areas most often identified as problematic in incest cases are
problems with communication, a lack of emotional closeness and flexibility, and social isolation.95

Although reviewers commonly conclude that socioeconomic status is unrelated to sexual abuse,96 there is also
evidence that this conclusion is erroneous, at least in regard to severe abuse. When epidemiological surveys in
broad, reasonably representative populations have focused on genital contact (thus, e.g., excluding being
“flashed”), researchers have found sexual abuse to be strongly related to poverty.97

(d) Factors in the Etiology of Child Maltreatment

(1) Psychological Factors

The dominant early view of child maltreatment (perhaps still the dominant view among the general public
and the courts) was that it is a reflection of psychiatric dysfunction—a “syndrome”—in the maltreating parent.
Wolfe has succinctly described the history and logic of this perspective:

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 Because pediatricians and other medical personnel brought the problem of abuse to worldwide attention, early attempts to explain this
phenomenon were couched predominantly in terms of the individual psychopathology of the offender. Child abuse was a deviant act;
therefore, it was reasoned that the perpetrators of such acts were themselves deviant. The search began for the identification of the
psychiatric symptoms or psychopathological processes that were responsible for such inhumane behavior toward one’s offspring, and that
would respond to psychiatric treatment.98

The literature resulting from this search long consisted largely of clinical impressions based on case reports
and other uncontrolled clinical studies. The result was inconclusive. In a review published in 1973, Gelles
found that at least two or more authorities had agreed on only 4 of 19 traits reported in the literature.99 A
largely uncritical review published by Spinetta and Rigler a year earlier reached a similar conclusion:

A review of opinions on parental personality and motivational variables leads to a conglomerate picture. While the authors generally agree
that there is a defect in the abusing parent’s personality that allows aggressive impulses to be expressed too freely, disagreement comes in
describing the source of the aggressive impulses.100

Simply saying that an abusive parent has trouble controlling aggression is, of course, tautological. Such an
“insight” offers no help in understanding the phenomenon.
Since this early research, more systematic studies have shown a variety of mental health problems—but not
severe mental illness—to be common among abusive and neglecting parents: hostility, depression, anxiety,
dependency, and general inadequacy, often accompanied by substance abuse.101 The search for a child abuser
syndrome, however, has remained elusive. As an NRC panel concluded in 1993, a “consistent profile of
parental psychopathology or a significant level of mental disturbance has not been supported.”102
More conceptually based research has suggested some psychological problems that may relate directly to
parents’ maltreatment of their children. Abusive and neglecting parents have often been shown to be low in
empathy and in understanding and acceptance of the nuances of behavior.103
Even this conclusion, however, must be qualified. The evidence that maltreating parents have
inappropriate expectations—at least in terms of expectations for their children—is equivocal. Rosenburg and
Reppucci reported data from a study that cast doubt on this hypothesis, although their findings did raise other
possible explanations.104 When abusive and matched nonabusive parents were presented with vignettes about
childrearing, the abusive group actually perceived more alternative reasons for their children’s behavior (e.g.,
they more often saw misbehavior as possibly accidental as opposed to purposeful), and there were no group
differences in attribution of intentionality. The abusive mothers tended to be much more self-critical,
however. Rather than misperceiving the children’s behavior, they seemed to experience behavior management
problems as threats to their own self-esteem. The more alternatives that they could generate for their
children’s difficulties, the more responsible—and the more out of control—they felt. Thus the mothers may
have had expectations that were too high for themselves, not for their children. The abusive mothers also
indicated significantly more sources of stress on them in the past year than did the nonabusive parents.
Therefore, there was the suggestion of a lethal combination of high stress, self-reproach (perhaps abusive
parents blame themselves not just for childrearing problems but for other sources of stress as well), and
displacement of anger onto children.
Indeed, a low sense of competence as a parent, accompanied by affect (e.g., depression) appropriate to that
self-perception, seems to be the most well-validated personality attribute of abusive and neglecting parents.105
As Pelton has argued, such a trait is even apt to mediate the effects of poverty, and therefore to distinguish

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between poor families in which maltreatment occurs and poor families that adapt to their circumstances.106

(2) Social and Economic Factors

The evidence that social and economic factors play a role in the etiology of child abuse and neglect—especially
neglect—is far stronger than it is for psychological factors. To summarize the discussion to follow, when social
poverty (i.e., isolation and lack of social support) combines with economic poverty, the result is significant
danger for children.

Neighborhood Quality. Social poverty is perhaps best illustrated by neighborhoods in which relationships
are so weak or so negative that people do not watch out for each other. Particularly strong evidence for this
conclusion has come from the studies that James Garbarino and his colleagues conducted over the course of
two decades.107 In one study they conducted, they found that although economic factors alone accounted for
52% of the variance in the rate of child maltreatment across communities, variables related to neighborhood
stability were also very significant correlates.108
Examining the latter finding in more detail, Garbarino and Sherman studied two low-income
neighborhoods that had dramatically different reported rates of child maltreatment.109 The two
neighborhoods had identical proportions of low-income families living in them (72%), but child maltreatment
was eight times more prevalent in one neighborhood than in the other. Interviews with expert informants
(ranging from Scout leaders to school principals to letter carriers) gave contrasting pictures of the two
neighborhoods as places to live—impressions confirmed by interviews with residents. One-third of the
children from families in the high-risk neighborhood, compared with just 8% of the children in families in the
low-risk neighborhood, played regularly with children in the neighborhood. Parents in the high-risk
neighborhood were much less likely to be available for their children after school, much more likely to have
experienced multiple major stressors in the previous year, and likely to have fewer other adults whom they
considered to be interested in their children.
The general picture of the high-risk neighborhood was of a community in which there were great
emotional drains and few social supports to replace the depleted human resources. In such a situation,
regardless of the personal inadequacies of parents, intervention must take into account the need to build the
community as a whole if it is to be successful.
Even stronger support for this proposition came from a comparison of descriptions by a representative
sample of parents in upstate South Carolina of the safety of children in their homes with direct observations
of indicators of neighborhood quality (e.g., evidence that homes, lawns, and community infrastructure were
being cared for). When major demographic variables (e.g., household income) were controlled, neighborhood
quality still accounted for about one-fourth of the variation in children’s safety in their homes—a much higher
proportion than is typically found in studies of the relation of psychological variables to child maltreatment.110

Social Support. Social isolation has long been known to be related to child maltreatment. In older research,
abusive and neglectful parents have been found to be less likely than other parents to belong to organizations,
to have telephones, to have relationships outside the home, and so forth.111 The direction of causality,
however, has been unclear. Have maltreating parents been excluded from supportive social networks, are such

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networks unavailable to them, do they lack the skills to enter into networks, or have they withdrawn from
social interaction?
Moreover, until relatively recently, little effort has been made to understand the elements of social support
that are important in preventing child maltreatment. It is not self-evident that having increased social contacts
with significant others should be an objective in treatment plans for abusive and neglectful parents. Consider,
for example, situations in which relatives are hostile toward one another112 or friends are made in the process
of sharing illicit drugs.
Coohey’s research is illustrative of work designed to identify the critical elements of social support in
prevention and treatment of child abuse and neglect:

To summarize, neglectful mothers had fewer members in their networks, had fewer total contacts, had less contact with the members they did
have, perceived their members to be less supportive, and received fewer instrumental and emotional resources from their network members
compared to mothers who did not abuse their children. Thus, the neglectful mother’s perception of support was consistent with the actual
receipt of fewer resources. . . . In retrospect, the finding that neglect is related to fewer instrumental resources seems obvious, since close
family members and friends provide instrumental resources that may, in part, prevent some types of neglect. For example, children being left
alone [are] by far the largest group of neglected children in Illinois, and family members and friends are the major source[s] of short-notice
or emergency assistance (especially baby sitting). If a mother has only a few people she can turn to when she needs to go out, she may under
certain circumstances (e.g., cannot reciprocate the favor) leave her children alone.113

Thompson has contributed the most extensive analysis of the relation of social support to child
maltreatment.114 He has noted that there are several benefits to social support for high-risk families:
“appropriate models of parenting behavior; a buffer against the effects of socioeconomic or other life stresses;
enhanced access to skills, services, or information; counseling; or other kinds of assistance,” as well as ongoing
monitoring and social control.115 However, such support is only offered, accepted, and sustained if it is
perceived as noncontingent (as in kin relations) and reciprocal.116 Thompson has argued, therefore, that
dispositional plans should be tailored to extend the latter type of resources:

[A] program of social support intervention, especially one emphasizing informal social networks, must extend significantly beyond
neighborhoods to encompass extended kin; workplace social networks; friends who live outside local neighborhoods; associates through
churches, unions, and other broader community groups; school-based associates; and other potentially valuable social resources to parents
and their offspring.117

As Coohey’s findings illustrate,118 these “natural” networks must be constructed (the paradox embedded in
this language is noteworthy) so that not only emotional but also instrumental support is provided. Child care
appears to be a particularly important contribution that friends and relatives can make to prevent child
neglect.119

Material Support. Research on the etiology of child abuse and neglect suggests that concrete assistance
(such as child care) ought to be a central feature of most dispositional plans. Pelton began a background paper
for ABCAN with this stark conclusion: “After years of study and research, there is no single fact about child
abuse and neglect that has been better documented and established than their strong relationship to poverty
and low income.”120 Elaborating, Pelton noted:

The great majority of families to which child abuse and neglect have been attributed live in poverty or near-poverty circumstances. The
finding that poor children are vastly overrepresented among incidents of child abuse and neglect has been obtained across a range of
methodologies and definitions, forms of abuse and neglect, and levels of severity.121

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Moreover, there is evidence that the risk of child maltreatment is related to the severity and intractability of
the deprivation that a family experiences. For example, among families receiving Aid to Families with
Dependent Children (AFDC), families known to be abusive or neglectful were living in more crowded and
dilapidated conditions, more likely to have gone hungry, and in general experiencing a worse standard of
living.122 Similarly, unemployment is most strongly related to child maltreatment in the poorest
communities.123
Inadequate housing appears to be a particularly potent risk factor.124 ABCAN identified five reasons for
this relationship:

First, parents who lack adequate housing—or any housing—face an unusually difficult task to keep their children safe, because the hazards of
everyday life become more frequent and more serious. . . .
Second, poor housing itself is a stressor that may make coping with the demands that children pose more difficult. Notably, when homes
are overcrowded, conflicts may escalate faster, because physical confrontation may be inevitable.
Third, housing costs account for a sufficiently large proportion of household budgets, especially for families in poverty, that housing policy
may have a direct effect on the level of poverty that disadvantaged families experience and, therefore, the prevalence of child maltreatment.
Fourth, housing is a major marker of social status and community integration. People living in dilapidated housing may be especially
prone to regard themselves as unworthy. High levels of absentee ownership and building vacancies may be important factors in residents’
feelings of loss of control and their unwillingness to invest their energy in caring for their neighborhood and the children within it. . . .
Fifth, regardless of the particular state of repair of the homes in a neighborhood, housing patterns can promote or inhibit interaction and
watchfulness among neighbors. Accordingly, housing designed in a manner that impedes such interaction may increase social isolation and
foster zones of violence.
In short, inadequate housing can result both directly and indirectly in increased risk of child maltreatment.125

In general, the relationship between child maltreatment and poverty is valid across forms of maltreatment
(including sexual abuse), but it is especially applicable to neglect.126 The relationship with neglect is valid
almost by definition, because the most common allegation in neglect cases is “deprivation of necessities.”127
Similarly, poverty substantially raises the risk associated with “inadequate supervision,” a particularly common
specific allegation.128 The problem of inadequacy of care typically involves the interaction of personal
problems, social isolation, and economic deprivation:

Impoverished families tend to live, though not by choice, in neighborhoods with the highest crime rates, in apartments that are not secure,
and in homes made dangerous by lack of heating, poor wiring, and exposed lead paint, to name only a few of the health and safety hazards
associated with poverty. These conditions, the same ones that may cause indirect danger to children by generating stressful experiences for
the parents, cause direct danger as well, for which it becomes possible to implicate the parents for not preventing. Moreover, in the presence
of these conditions, impoverished parents have little leeway for lapses in responsibility, whereas in middle-class families there is some leeway
for irresponsibility, a luxury that poverty does not afford.129

(e) Prognosis and Treatment

This subsection of the previous edition of this book began with a dismal picture. Relying on findings reported
as recently as 2005, it noted that research on the types of interventions that work in child maltreatment cases
was “remarkably scarce, especially for neglect cases,” and that what evidence existed was “discouraging.”130 We
further noted that the interventions that took place often did not halt child maltreatment, especially if
psychodynamic in orientation.131 Similarly, the NRC panel that reviewed the literature on child maltreatment
in the early 1990s lamented its task of reviewing a “fragmentary” body of research lacking systematic reviews
and controlled studies.132 The panel further noted a wide range of contexts for which neither theoretical

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foundations nor well-designed outcome studies were available, especially in regard to neglect.133
Today, as the recent IoM/NRC panel noted, the situation is different, thanks to the influence of the
movement for evidence-based treatment.134 Indeed, the situation is so different that a program-by-program
review is well beyond the scope of this book.135 Several general points, however, still are relevant to clinicians
involved in dispositional planning:

1. It is important to remember the complexity of causation of child abuse and neglect, especially the latter.
Hence an integrated service plan that addresses these multiple elements, including those related to material
and social needs, is commonly desirable.136 For some purposes, informal services will be most relevant and
effective.137
2. The treatment should be germane to the individual parent, child, or family. For example, trauma-focused
cognitive-behavioral therapy has an enviable evaluation record.138 For a child referred for chronic neglect
because of a multiplicity of inadequacies in the home, however, trauma may not be the core experience. More
generally, a problem-by-problem litany in a service plan may not provide a practical strategy for dealing with
multiple problems. In the same vein, parent training may lack relevance for a parent whose children have been
removed from the home.
3. The treatment should be available and administered with fidelity. Access to high-quality services is still
often a problem for many families, including children in foster care.

15.04. CLINICIANS’ INVOLVEMENT IN THE LEGAL PROCESS

CASE STUDY 15.1

You are the therapist for Joan McIntyre, a single mother who is being treated for depression. Ms. McIntyre works as a housekeeper in a
local motel and ekes out a living for her two children, ages 8 and 4. In the context of the treatment, you learned that there have been times
when Ms. McIntyre has been so short on energy as well as funds for child care that she has left the children alone for hours at a time, and
that she sometimes has been psychologically unavailable even when physically present. You became sufficiently concerned that, with Ms.
McIntyre’s knowledge but over her objection, you reported your suspicion of child neglect to CPS.
After conducting a home visit in which it was determined that the neglect had occurred but that the children were not in immediate
danger, the CPS caseworker called you to ask you to conduct an evaluation so that a dispositional plan could be developed. The plan may
ultimately be submitted to juvenile court.

Questions: Should you agree to conduct the evaluation? Would your answer change if you were the children’s therapist or the therapist
for the whole family, as opposed to the therapist for Ms. McIntyre? Suppose that CPS does assume jurisdiction and that the children
remain in the home, but that CPS and Ms. McIntyre cannot come to an agreement about the specific steps to be taken to ensure the
children’s safety. Would you accept a request to mediate the dispute? To provide an evaluation for use by the mediator? What types of issues
would you want to raise in conducting such a mediation or evaluation?

(a) Investigation

Historically, mental health professionals rarely became involved in addressing forensic issues in child
maltreatment cases before the cases were adjudicated. In recent years, however, clinicians’ involvement has
begun increasingly earlier in the process. In this regard, child protection bears some resemblance to civil
commitment in that a forensic clinician may assume the role of decisionmaker and even initiator (i.e.,

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mandated reporter) of the process in its early phases, but then may return to the role of neutral expert at the
adjudication and disposition.
The potential role confusion is even more likely to be present, however, because of the nature of the
questions posed in child protection cases. After a report is made, state authorities—most often CPS workers
—have two kinds of questions that they are legally obligated to answer. First, did child maltreatment occur?
This question actually has two parts: Did child abuse or neglect, as defined in the criminal and the family
codes, occur? Second, if child maltreatment did occur, what disposition would alleviate the danger? The latter
question potentially involves immediate (emergency), short-term, and long-term predictions and decisions.
Note that a positive answer to the first question necessarily triggers an inquiry in regard to the second—in
effect, an exploration of the coercive steps that the state might take to ensure the child’s safety. Even when
CPS fails to substantiate that legally cognizable abuse or neglect has occurred, however, the state may pose the
second question (or an even broader question about a plan to meet the needs of the child and family) in regard
to voluntary services.
Unfortunately, the former question (What happened?) so dominates the inquiry in most states that the
latter question (What can we do about it?) often is addressed minimally if at all. Even when maltreatment is
substantiated, often no services at all are delivered; as noted in the preceding section, children’s own needs for
services are especially unlikely to be addressed.139 ABCAN [see § 15.01(c)(2)] concluded:

Investigation now drives the child protection system. Stated differently, the system acts in response to allegations—not needs for help. . . .
The result of the current design of the child protection system is that investigation often seems to occur for its own sake, without any realistic
hope of meaningful treatment to prevent the recurrence of maltreatment or to ameliorate its effects, even if the report of suspected
maltreatment is validated. Obviously investigation cannot be removed altogether, but it should no longer be the centerpiece of child
protection.140

In most states, the inquiry in regard to both questions (What happened? What can we do about it?) is
labeled an “investigation.” That term connotes, however, an emphasis on the answer to the former question.
To try to reorient the child protection system, some CPS agencies are now differentiating between an
“investigation” (the former inquiry) and an “assessment” (the latter inquiry).141 Some states have established
multidisciplinary teams for investigation, assessment, and intervention, with clinicians focused on the latter
roles.142 Others now try to separate the investigatory and therapeutic roles by placing primary responsibility
for the former work on law enforcement agencies, at least in cases in which criminal charges may be
invoked.143
Such differentiation is likely to reduce the role confusion—and related ethical problems [see § 15.06(e)]—
of mental health professionals. The determination of whether abuse or neglect occurred is a judgment
requiring common sense and legal acumen, but it is outside the specialized knowledge of mental health
professionals [see § 15.04(c)(4)]. On the other hand, dispositional planning is well within the province of
clinicians. Even on the latter issue, however, clinicians should avoid giving ultimate-issue opinions about
dispositions (e.g., whether the risk to a child’s safety is so egregious that it warrants placement of the child in
foster care).
These attempts to increase the clarity of various professionals’ roles in child protection cases are laudable.
But clarity in concept does not necessarily translate into clarity in practice. Three points are noteworthy here.
First, clinicians must remain mindful that although dispositional issues are conceptually within their province,

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their expertise on such issues may still be limited. In particular, the scientific foundation for risk assessment144
and treatment planning in cases of child maltreatment is weak, albeit improving [see § 15.03(e)].
Second, as this last point implies, determination of the circumstances in which maltreatment has occurred
may be highly relevant in assessing the risk to the child and developing a plan to mitigate it. Therefore,
drawing a bright line between “investigation” and “assessment” may be quite difficult.145
Third, the multidisciplinary team approach noted above is not likely to be a panacea. Under this approach,
responsibility for decisionmaking about civil child protection petitions, corollary dispositional matters, and
even the filing of criminal charges may be diffused across the justice, health, mental health, and social service
systems, including mental health professionals practicing in any of these settings. Although the clinicians’
roles may primarily be to plan and implement treatment, they are also likely to be involved as team members
in at least an advisory capacity in decisionmaking about the pursuit of legal matters. In that connection, the
clinicians’ role may be especially ambiguous, because they may be regarded as the team’s experts in
interviewing children. In such a capacity, they may substitute not only for CPS workers, but also for police
officers in conducting part of the investigation.146 In such a circumstance, the clinicians could in theory
remain information gatherers without becoming decisionmakers. Nonetheless, when clinicians have an explicit
role of eliciting information that may be used in a prosecution, the possibilities for confusion—not only of the
clinicians themselves, but also of the individuals whom they are interviewing—are obvious. Consider these
observations about conflicting roles in connection with Case Study 15.1 and the typical investigation process,
described below.

(b) Emergency Decisions

After any report of suspected maltreatment, the first step for the caseworker or child protection team is to
determine the level of imminent risk and, if necessary, take emergency action to protect the child. State
statutes permit removal of a child from parental custody as one of the options in emergency situations. The
specific circumstances justifying such action vary, but they typically include, for example, a caseworker’s or law
enforcement officer’s belief that a child is in imminent danger or in need of immediate medical attention, or
that the child has been sexually abused. The criteria specified in the Alaska statute are illustrative:

(1) the child has been abandoned . . . ;

(2) the child has been neglected by the child’s parents or guardian . . . and the department determines that immediate removal . . . is
necessary to protect the child’s life or provide immediate necessary medical attention;
(3) the child has been subjected to physical harm by a person responsible for the child’s welfare, and the department determines that
immediate removal . . . is necessary to protect the child’s life or that immediate medical attention is necessary; or
(4) the child or a sibling has been sexually abused [under certain circumstances].147

In most states, the authority for taking a child into emergency custody rests with CPS, the local law
enforcement agency, or both. Under such a statutory structure, a mental health professional may become
involved in decisionmaking as a consultant assisting a CPS worker in analyzing the level of imminent risk to
the child and considering steps that might be taken to mitigate that risk. Alternatively, in the course of an
evaluation or treatment, the mental health professional may become alarmed at the apparent level of risk and
may recommend—and thereby precipitate—emergency action to protect the child.

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 In some states, clinicians may also act directly to initiate emergency protective action. For example, Illinois
law states that

a physician treating a child may take or retain temporary protective custody of the child without the consent of the person responsible for the
child’s welfare, if (1) he has reason to believe that the child cannot be cared for at home or in the custody of the person responsible for the
child’s welfare without endangering the child’s health or safety; and (2) there is not time to apply for a court order under the Juvenile Court
Act of 1987 for temporary custody of the child.148

If the physician makes this decision, he or she must notify the Illinois Department of Children and Family
Services immediately, so that the department may initiate proceedings for continued temporary custody of the
child in a court of competent jurisdiction. The burden for showing a continuing need for custody then rests
with the state.149
Whether the assessment relates to an initial clinical or a later judicial determination of danger to the child,
the clinician should remember that the question is not simply whether the child’s safety demands placement
outside the home. If a less intrusive action (e.g., periodic monitoring) can mitigate the risk sufficiently for the
short term, that plan should be followed.

(c) Adjudication

Several issues arise in connection with the adjudication of neglect and abuse. Some are procedural, such as the
appropriate manner of taking a child’s testimony in the highly charged context of an abuse proceeding where
the accused person and the accuser are related. Others are evidentiary, including when an out-of-court
statement by a child is admissible. A third series of issues concerns a child’s competence to testify in abuse
cases. Finally, there are a host of issues associated with identifying whether abuse has occurred and who
committed it.

(1) Procedural Issues Involved in Obtaining Children’s Testimony

In the 1980s, as reporting and criminal prosecution of sexual abuse cases began to increase dramatically,
legislators and courts began to be more concerned about removing barriers to children’s testimony (given the
common lack of eyewitnesses and corroborative physical evidence in sexual abuse cases) and diminishing the
emotional trauma that many believed the legal process inflicted on child witnesses.150 Accordingly, most
states adopted statutes and court rules that changed the procedural and evidentiary rules governing children’s
testimony, at least in abuse cases.151 Typically, these legal rules limit the defendant’s confrontation of the
child (e.g., though closed-circuit TV), minimize public access to the child’s testimony (e.g., through
courtroom closure), and change the way in which the jury hears the child’s evidence. Although the specific
issues vary, the post-1980 rules typically raise questions about attenuation of the defendant’s rights to face-to-
face confrontation and a fair, public jury trial, as well as of the public’s right (through the press) to access to
the trial process.
Apparently because of prosecutors’ preference for live testimony by the witnesses they call, their reluctance
to open doors to appeal of convictions, and concern over costs, the special procedures are applied in relatively
few cases in most jurisdictions.152 Another reason to be wary of these alternatives is their potentially distorting

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effect on jurors’ assessment of both the defendant’s guilt and the child’s credibility.153 Nonetheless, the
number of sexual abuse cases reaching the courts is now so vast that issues regarding special procedures come
up more than occasionally.154
Though a state-by-state, law-by-law review of the status of special procedures in child abuse cases is
beyond the scope of this book, the overarching principle of federal constitutional law governing testimony by
child witnesses in abuse cases can be described briefly. In a series of such cases decided between 1982 and
1990,155 the United States Supreme Court repeatedly applied the well-settled constitutional principle that
intrusions on fundamental rights must be narrowly drawn to meet a compelling state interest.156 Specifically,
the Court held that although access to evidence and protection of children’s welfare are compelling state
interests sometimes justifying intrusions on the rights of defendants and the public, states cannot establish
blanket rules to infringe on such rights in cases involving child victims. Relying heavily on amicus briefs filed
by the American Psychological Association,157 the Court emphasized the need for case-by-case determination
of the need for special procedures.
This principle was elaborated most forcefully in Maryland v. Craig.158 The Court held that only

if the State makes an adequate showing of necessity [will] the state interest in protecting child witnesses from the trauma of testifying in a
child abuse case [be] sufficiently important to justify the use of a special procedure that permits a child witness . . . to testify at trial against a
defendant in the absence of face-to-face confrontation with the defendant.159

To reach a conclusion of “necessity” for testimony outside the physical presence of the defendant (e.g., via
one-way closed-circuit TV), the trial court has to make three findings to satisfy Craig. First, “the requisite
finding of necessity must of course be a case-specific one: the trial court must hear evidence and determine
whether use of the . . . procedure is necessary to protect the welfare of the particular child witness who seeks
to testify.”160 Second, “the trial court must also find that the child witness would be traumatized, not by the
courtroom generally, but by the presence of the defendant.”161 Third, “the trial court must find that the
emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e.,
more than ‘mere nervousness or excitement or some reluctance to testify.’ ”162 The Supreme Court also held,
however, that such findings could be made without the trial judge’s direct observation of how the child
behaves in the presence of the defendant:

The trial court in this case, for example, could well have found, on the basis of expert testimony before it, that testimony by the child
witnesses in the courtroom in the defendant’s presence “will result in [each] child suffering serious emotional distress such that the child
cannot reasonably communicate.”163 (Emphasis added)

In short, the Supreme Court encouraged trial courts to consider means of mitigating the child’s distress
without limiting confrontation by the defendant. For example, if the trial process itself is found to be
traumatic, “the child could be permitted to testify in less intimidating surroundings, albeit with the defendant
present.”164 The Court declined to specify the level of disturbance required for a “more than de minimis”
showing that confrontation would be traumatic, because the Maryland statute at issue in Craig established a
threshold that “clearly suffices to meet constitutional standards.”165 Specifically, the Maryland statute required
a finding that the child would suffer such emotional distress that he or she would be unable to communicate
reasonably—in effect, that the court would be deprived of the child’s testimony and that justice would be
stymied.166 It is unclear whether the Supreme Court would sanction statutes, present in some states,167 that

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condition use of special procedures on protection of the child from mere “psychological” harm.168
Craig opened the door to testimony by mental health professionals in hearings to determine whether there
is a necessity for special procedures to protect particular child witnesses. The Maryland statute and others like
it appear on their face to require a type of evaluation that will be familiar to forensic mental health
professionals specialized in work with children. As one commentator stated,

the Maryland procedures seem to require a focus on expectable cognitive–linguistic–social performance when faced with a particular stressor.
This focus is not unlike that of an evaluation of competency to testify, one element of which is a child’s ability to relate a story accurately.169

In contrast, in states that base their use of special procedures on their desire to protect children from
psychological harm [see § 15.02(d)], “[t]he focus is on the potential injury to the child of testimony in front of
the defendant, regardless of whether the child can communicate sufficiently to offer useful testimony.”170
Thus the type of evaluation demanded in these jurisdictions, whether involving use of special procedures in a
criminal court or a family court, may overlap with a dispositional evaluation in child protection proceedings in
the family court. It is narrower than that type of evaluation, however, in the sense that it requires
consideration of the emotional consequences of the child’s interaction with a particular adult in a specific
context.
Although the nature of the inquiry may be familiar under either type of statute, the information needed to
make the necessary predictions is sparse, and it is unlikely that the necessary scientific foundation will be
available soon. A working group of the American Psychological Association concluded:

Although there are reasons to believe that some children need special procedures in order to avoid trauma and provide full and accurate
testimony, identification of these children is complicated by the infrequent use of such procedures. The sample sizes for testimony under
different conditions are so small that it is unlikely that an actuarial risk–benefit assessment soon will be available for determination of the
particular cases requiring procedural modification.171

The knowledge that is now available provides additional foundation for the need for caution in such
evaluations. Although research on the emotional sequelae of child victims’ testimony in criminal proceedings
“lends credence to the case-by-case approach, it also suggests the difficulty of implementing it”:172

Interestingly, the children who most want to have their day in court are those who are in some of the most negative circumstances (e.g., who
have a history of previous abuse; whose caretaker is poorly adjusted) and thus are at high risk for negative effects of testimony. This finding
has important policy implications. First, it suggests the need for special procedures in some cases so that children who, in a sense, have the
most to tell are able to do so without undue risk. Second, when combined with other findings, it indicates the complexity of determining
who is most at risk. Bright-line rules (e.g., age) will not validly discriminate children at high risk of negative effects of testimony.
Assessments of overall clinical risk will be overbroad because some children who may be in especially difficult circumstances will benefit from
the opportunity to testify. In either instance, assessment of probable effects of testimony may not be informative about probable effects of
testimony under special procedures [the question posed by Craig and the preceding cases].173 (Emphasis in original)

Moreover, the scant research available on the general effects of use of special procedures raises some
questions about their efficacy. Notably, research conducted in two Australian jurisdictions showed that,
contrary to the beliefs of parents and the professionals involved, use of closed-circuit television for children’s
testimony affected neither their emotional well-being nor their perceptions of their court experience.174 On
the other hand, having a choice about whether to use closed-circuit TV (regardless of the choice made) did
alleviate children’s stress. This finding is paralleled by British research showing that having a choice about the

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site for an investigative interview diminished the emotional sequelae of the process.175 A subsequent study in
the United States revealed that children experience greater pretrial anxiety before testifying in court than via
closed-circuit TV, but that this anxiety decreased with increased knowledge of the legal system.176 Research
on other models—such as cross-questioning child witnesses through an intermediary—is nascent.177
Thus, although research and theory on the dynamics of child abuse178 and the nature of children’s
experience in the legal process179 may be helpful in suggesting the possible effects of alternative procedures,
there is little research directly on point, and that which is available gives more reason for caution in
predictions. Amid such uncertainty, there is special significance in our usual injunctions to avoid the ultimate
issue (in this instance, in regard to whether there is a necessity for use of a particular procedure) and to
illuminate the level of uncertainty in the foundation for one’s opinions.

(2) Reliability of Hearsay

Another potential side issue for forensic evaluation at the adjudicatory stage is the reliability of hearsay
statements [see § 3.07(b) for a general treatment of hearsay]. In their zeal to minimize child victims’ direct
confrontation of defendants and to preserve evidence that inculpates defendants, prosecutors frequently desire
to admit statements that children have made out of court. Moreover, many state legislatures have adopted
special hearsay exceptions for use in cases involving child abuse.180 While the various grounds for admission of
children’s hearsay statements are diverse,181 the important point for present purposes is that because such
statements by their nature affect a defendant’s right to confront the witness, the proffer of such hearsay
statements in a criminal child abuse case implicates the Sixth Amendment’s confrontation clause.
In construing the scope of the Sixth Amendment in this context, the Supreme Court’s rulings prior to 2004
seemed to open the door to expert testimony on the admissibility of hearsay statements.182 In 2004, however,
the Supreme Court drastically changed its interpretation of the confrontation clause by concluding, in
Crawford v. Washington,183 that virtually all “testimonial” hearsay statements must be excluded in criminal
cases. The Court held that, “at a minimum,” a statement is testimonial if made during police interrogation
and other “formal” processes designed to obtain information for trial, since these practices have a close kinship
to the abuses at which the confrontation clause was directed.184
Applied to this setting, most statements made by children to police investigators are likely to be testimonial
and may not be introduced unless the child is in court and available for cross-examination.185 But a later
Supreme Court decision held that statements are not testimonial if made “under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.”186 Lower courts have held that statements made to doctors and nurses during postincident
treatment,187 to an emergency response team mere hours after the alleged event,188 or to nongovernmental
officials (such as the other parent) are nontestimonial.189
If a statement is nontestimonial, then the state’s normal hearsay rules apply.190 In most states,
nontestimonial hearsay from children is presumptively admissible; however, as discussed in more detail below
[see § 15.04(c)(4)], courts might still require proof of some indicia of reliability before allowing it into
evidence.191 In such cases, clinicians may be asked to determine the trustworthiness of children’s
nontestimonial hearsay statements.

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 In responding to requests for such determinations, clinicians should consider two points. First, the factors
that courts frequently consider in determining the trustworthiness of a child’s statement are largely matters of
common sense; for instance, courts may assume that children are not likely to lie to a doctor they view as
beneficent. Second, research tentatively suggests that children are no more likely to recant or make false
accusations in cases involving alleged sexual abuse than adults.192
Given these facts, there is good reason to doubt whether mental health professionals bear specialized
knowledge justifying admission of their opinions about the reliability of a child’s hearsay statements. There
may be some specific factors about which psychological knowledge is relevant (e.g., the sophistication of
vocabulary and grammar that is common among children of a given age and the specific child whose
statement is in question; the range of emotion that children may display when they initially disclose abuse).
Even in these instances, however, there clearly is no foundation in psychological research for the ultimate
conclusion about whether a child’s statement is trustworthy.

(3) Competence to Testify

The criteria for competence to testify are elaborated in § 7.07. Children are competent to testify when they
have the capacity to observe and remember events and to communicate about them, when they can distinguish
reality from fantasy, and when they understand the obligation to tell the truth.193 The majority of states now
presume children to be competent witnesses, whether in general or in child abuse cases specifically.194 In some
jurisdictions, this presumption is irrebuttable, meaning that no competence hearing occurs, a policy that is
based on the desire to avoid time-consuming pretrial proceedings, the assumption that the child’s testimony is
crucial is such cases, and the belief that juries are capable of assessing the reliability of most testimony.
The clinician who is invited to evaluate a child’s competence to testify should be aware of the large body of
research on children’s skills as witnesses [see § 7.07(b)].195 Much of this research may actually speak more to a
child’s credibility than to his or her competence as a witness. Credibility is a continuum; competence is a
dichotomy. As long as the competence threshold is passed, developmental differences in children’s cognitive,
linguistic, or social skills or their moral judgment are irrelevant to the latter determination. As indicated in the
preceding paragraph, that threshold can be quite low; in any event, it is based at least as much on jurors’
competence in weighing children’s testimony as it is on children’s skill in presenting it.
One last point has to do with the distinction between competence to testify and the confrontation issue
addressed in the preceding section. As Myers has pointed out, the reliability determination involved in hearsay
confrontation analysis is different from the ability-to-communicate determination involved in competence-to-
testify analysis.196 Thus, for instance, inquiry into a child’s ability to relate facts to a social worker is focused
on reliability, whereas the child’s ability to relate the same facts to a jury is focused on communication
issues.197

(4) The Case in Chief: Proving Injury and Abuse

The most controversial uses of clinicians’ testimony in child maltreatment cases relate to the questions “What
happened?” and “Who did it?” There may be no other context in which evidentiary and professional issues of

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the sort discussed in Chapter 1 are as frequently and acutely raised. When, if at all, may group data be used as
evidence about whether a particular individual perpetrated or experienced abuse or neglect? What level of
inference should mental health professionals be permitted to reach in their opinion testimony?
Use of mental health professionals’ testimony to prove elements of the prosecution’s case in chief—whether
in a family court adjudication or a criminal trial—is a highly debated phenomenon. It is possible to identify
several different kinds of questions that clinicians might be asked and that are directly germane to proof of
elements of the offense.

Admission of a Child’s Statements through a Mental Health Professional. In one scenario, the clinician’s
opinions are not at issue; rather, the clinician is asked to testify as a voice for the child—a reporter of
statements made by the child about the maltreatment that he or she experienced. Because of a child’s
unavailability, a desire to avoid the necessity of his or her testimony, or simply a wish to corroborate testimony
that is given, attorneys often wish to admit statements made by the child outside the courtroom. One
potential source of such hearsay evidence is a health care professional (possibly a mental health clinician) to
whom the child confided about maltreatment.
As discussed above, the key questions here are whether the statements are nontestimonial, and if so,
whether an exception to the hearsay rule permits them to be introduced through the mental health
professional. On the latter issue, one traditional exception that may frequently apply in the child witness
setting is when a statement is made for the purpose of “medical diagnosis and treatment” (an exception resting
on the assumption that statements made for treatment purposes are likely to be reliable).198 Another
exception applies when a statement is “spontaneous” or an “excited utterance” (on the assumption that
statements made immediately after the observed event and without time for reflection are reliable).199 A
number of jurisdictions also have a “catch-all” exception that permits any statement considered reliable to be
admitted.200 Note, however, that all of these exceptions, and particularly the last, require overcoming judicial
skepticism about the circumstances under which statements by children are often made, doubts about their
spontaneity, and concerns about the possible suggestive effects of prior and leading questions. Furthermore, as
discussed earlier, many statements made to mental health professionals during the investigative phase are
likely to be seen as testimonial, and therefore will be inadmissible under Crawford regardless of whether a
hearsay exception is met, unless the child testifies and is subject to cross-examination.

Expert Testimony about Whether a Mental Injury Has Occurred. The most common use of a mental health
professional’s testimony is not simply to repeat statements made by a child, but to testify as an expert—an
approach that may also permit admission of the child’s statements, but as foundation for the expert’s opinions
rather than for their factual value. This type of testimony is much more controversial.
The least controversial testimony of this type concerns degree of mental injury under child protection
statutes that allow inquiry into emotional harm as an element of abuse or neglect [see § 15.02]. In such a case,
maltreatment is assumed to have occurred, and the clinician will be asked to determine whether psychological
damage has resulted from the maltreatment. Thus the evaluation and testimony will be focused on the child’s
mental status, and if significant disturbance is present, on whether it may have been caused by abuse or
neglect. The nature of the inquiry in this context is similar to that in tort cases in which mental injury is
alleged [see §§ 12.05(c) and (d)]. The problem for clinicians is most likely to be the question of causation.

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 In that regard, it is important to remember that child maltreatment commonly occurs in a context in which
children face many psychosocial challenges [see § 15.03], each of which might cause disturbance. Moreover,
at the time that a clinician is asked to evaluate a child believed to have been maltreated, the child is likely to be
experiencing stress as a result of the child protection proceedings themselves. If the child has been placed in
foster care as a protective measure prior to adjudication, the child also may be experiencing trauma as a result
of separation from the family of origin, placement with strangers, a change of schools, and disruption of other
daily routines.

Expert Testimony about Whether Abuse or Neglect Has Occurred. Another instance in which a clinician may
be asked to testify about a particular alleged victim involves questions about whether the child has been abused
(as opposed to harmed by acknowledged abuse). When this question is framed in terms of the child’s
truthfulness (“I believed her, because . . . ”) or of the truthfulness of abused children in general (“Children
don’t lie about sexual abuse”), courts and commentators are virtually unanimous in their view that such
opinions usurp the role of the trier of fact and should not be admitted.201 Some appellate courts have been
vociferous in their rejection of such testimony. For example, the Oregon Supreme Court wrote: “We have said
before, and we will say it again, but this time with emphasis—we really mean it —no psychotherapist may
render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of
credibility is for the trier of fact and not for psychotherapists.”202 Also bemoaning the intrusion on the
factfinder’s role, a Texas appellate court observed that “experts on child abuse are not human lie detectors. Nor
are they clairvoyant. Nothing in this literature suggests that experts can or should replace the jury as the
ultimate arbiters of credibility.”203
Some commentators distinguish the admissibility of an opinion about whether a purportedly abused child
is believable from that of a “diagnosis” of a child as abused.204 In our view (and that of most appellate
courts205), this is a distinction without a difference. Many clinicians are convinced that assessment of whether
abuse has occurred is a matter in which they are skilled and about which they should be permitted to
testify.206 Such a belief is understandable when the law not only permits but requires a clinician’s report of his
or her mere suspicion that a child has been abused or neglected, although the point should not be lost that this
duty extends in most jurisdictions to many more people than those who have professional training in the
mental health disciplines.207 There is no reason to believe that clinicians’ skill in determining whether a child
has been abused is the product of specialized knowledge.208 The conclusions to be drawn from a child’s
graphic description of a sexual encounter, for example, are a matter of common sense, not scientific
knowledge or even clinical acumen.
Because testimony as an expert involves an implicit representation that the opinions presented are
grounded in specialized knowledge, a mental health professional should decline on ethical grounds to offer an
opinion about whether a child told the truth or has been “abused.” By the same token, under the rules of
evidence, such an opinion should never be admitted.

Expert Testimony about Characteristics of Maltreated Children. The question is harder, and the case law is
divided, about the admissibility of a mental health professional’s opinion concerning the typical characteristics
of abused or neglected children (as opposed to whether a particular child is abused).209 If such an opinion is
grounded in hard data, its careful presentation does not violate professional ethics. We are leery of such

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testimony, however, as substantive evidence. In the current state of knowledge, such testimony is likely to be
so misleading and prejudicial that it will not assist the trier of fact.
Too often, clinical impressions about child abuse “syndromes” are presented without regard to the lack of a
systematic empirical foundation for such opinions.210 Although clinical intuition may be useful in guiding
treatment planning, it is insufficient as a basis for determining whether maltreatment may have occurred.
Furthermore, when statistical data are available, they provide acute evidence of a serious base rate problem.
One consensus conference concluded: “No specific behavioral syndromes characterize victims of sexual abuse.
Sexual abuse involves a wide range of possible behaviors which appear to have widely varying effects on its
victims.”211 Many sexually abused children show no symptoms at all, and most of the symptoms that are
disproportionately common among sexually abused children are quite common among children in general.212
The probability is that children showing behavior said to be indicative of sexual abuse—even those that most
strikingly differentiate sexually abused children—have not been abused [see § 1.03(c)(2)].213
Of course, these issues apply in both directions. One cannot assume, for example, that a purported victim
without obvious emotional distress lacks credibility. Accordingly, courts that have been skeptical about
admission of syndrome evidence in the prosecution’s case in chief still often have permitted use of such
evidence for rebuttal purposes (e.g., to the effect that abuse victims often appear “normal” or do not report
abuse).214
Also, the problems with psychological syndrome evidence may not apply to physical evidence.215 In contrast
to the ambiguities in the former type of evidence, alternative explanations for particular physical injuries (e.g.,
shaken-baby syndrome and spinal fractures) may be hard to generate.216

Expert Testimony about Characteristics of Child-Abusing Adults. An early illustration of the use of
testimony about the characteristics of child-abusing parents came in the Minnesota case of State v.
Loebach,217 an appeal of the conviction of Robert Loebach for the third-degree murder of his three-month-
old son, Michael. Although Loebach was a criminal case, the evidentiary issue presented in it is equally
applicable to civil adjudication of child abuse and neglect. In Loebach, Dr. Robert ten Bensel, an expert on
battered-child syndrome, first testified that the pattern of injuries that Michael had sustained was consistent
with the syndrome. As noted above, this medical testimony about physical injuries presumably fell well within
the boundaries of acceptable expert testimony in terms of assisting the jury to determine whether the death of
Michael was the product of nonaccidental injury. However, Dr. ten Bensel also described the psychosocial
characteristics of “battering parents”: a history of abuse in their own childhoods, role reversal, low empathy, a
“short fuse” and a “low boiling point,” high blood pressure, strict authoritarianism, uncommunicativeness, low
self-esteem, isolation, and lack of trust. The prosecution then called two caseworkers who had known
Loebach since he was a child to testify that he did in fact possess many of those characteristics.
The Minnesota Supreme Court ruled that Dr. ten Bensel’s testimony about the characteristics of battering
parents and the related testimony by the caseworkers should have been excluded. The court seemed to rely
initially on the fact that the evidence was admitted essentially to establish that the defendant’s character was
such that he was prone to child abuse. Under traditional evidence law, such evidence is not admissible unless
the defendant places his or her character at issue, which the defendant in Loebach did not. Ultimately,
however, the court’s decision did not rest on the bar against gratuitous prosecution use of character

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evidence.218 Rather, the holding was said to be “required until further evidence of the scientific accuracy and
reliability of syndrome or profile diagnoses can be established.”219
We have no quarrel with the result in Loebach—a result unanimously reached by the courts that considered
the same issue subsequently.220 The review of the literature in § 15.03(d)(1) shows that the scientific basis for
the battering-parent syndrome is very weak. When used in combination with medical evidence as to the cause
of physical injuries, it is likely to be highly prejudicial and misleading.221 Although the low validity of the
syndrome could have been elicited through skillful cross-examination and rebuttal testimony by other experts,
it is unlikely that Dr. ten Bensel’s testimony on the syndrome could have assisted the jury.
However, the Loebach court’s ultimate reliance on scientific invalidity may have been a ruse. The court
apparently did not review the scientific evidence on the battering-parent syndrome, and it avoided the more
basic and harder question of when group data should be used in individual cases [see § 1.03(c)(2)]. Suppose
that Dr. ten Bensel had given a scholarly, comprehensive review of the literature in terms comprehensible to a
lay jury. Suppose further that he had indicated the proportion of abusers possessing each of the characteristics,
the proportions in other groups in the population, and the methodological strengths and weaknesses of the
literature. This information would have provided the jury with base rates that might have assisted it in
weighing the evidence.
The critical point, however, is that a description of the general characteristics of many abusive adults is only
tangentially relevant to the question of whether a particular defendant abused a child. Although this
application of group data to an individual is common in forensic work, in this case, as Loebach suggested,
concerns underlying the prohibition on character evidence arise [see § 8.03(c)].222 Defendants should be
convicted and respondents’ parental rights should be infringed on the basis of what they did, not who they are.
In the unlikely event that behavioral scientists are called to testify about the characteristics of abusive
parents, they would certainly be ethically obligated to indicate the limitations of the literature and the overlap
among populations. To prevent misuse of the evidence, they also should make clear to the factfinder the
difficulties in drawing inferences about individual events on the basis of group data.

(d) Disposition and Postdispositional Review

Although much of the debate about use of mental health professionals in child protection cases focuses on
their involvement in generating and presenting evidence about the case in chief, the most common use of
mental health professionals is in the development of information that may be used in crafting dispositional
plans. This role may first arise in emergency decisionmaking soon after a report of suspected child
maltreatment is made to CPS or a law enforcement agency [see § 15.04(b)]. It usually continues at the
dispositional hearing that follows a family court’s adjudication that child maltreatment has occurred, or the
sentencing hearing that follows a criminal conviction for such behavior. Indeed, dispositional questions may
continue to arise even after the disposition is settled. Federal law specifically requires a postdispositional
review of the child and parents at least semiannually if a child is placed in out-of-home care.223 Of course, the
prospect of long-term placement of this type may stimulate questions about possible termination of parental
rights [see § 15.04(e)] or, conversely, eventual reunification of children with their biological parents.224 In
short, as long as the court maintains jurisdiction over the family—in effect, as long as CPS has an open case—

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dispositional questions are apt to arise.
This process is analogous to juvenile delinquency proceedings in several respects. First, no matter what the
specific point in the process,225 the court is able to undertake a far-ranging inquiry about the child’s best
interests, and the range of potential specific dispositions (e.g., conditions placed on parents in either retaining
or regaining custody of the child) is broad.226 Second, in consideration of a child’s best interests, an
overarching predictive question (analogous to “amenability to treatment” in juvenile justice) dominates the
process: What is the level of risk to a child’s safety associated with each dispositional option?
Third, notwithstanding this commonality across proceedings, each point in the process brings different
specific issues (analogous to the variations in meaning of “amenability to treatment” at various points of
delinquency proceedings [see §14.04(b)]). For example, emergency decisions and subsequent hearings on
temporary disposition are apt to focus on imminent risk that may justify immediate removal [see §15.04(b)].
Postadjudication hearings are likely to focus instead on long-term risk and actions that could be taken to
reduce it. Because of a federal statutory requirement227 and corollary statutes in many states,228
postdispositional hearings (whether conducted by a juvenile or family court, a foster care review board, or
both) typically include an inquiry about whether the state has made reasonable efforts “to prevent or eliminate
the need for removal of the child from his home, and [when placement occurs] to make it possible for the
child to return to his home.”229 Proceedings in which termination of parental rights is under consideration
typically require other specific findings about the long-term prognosis [see §15.04(e)].
For clinicians, the second point made above is probably the most important. Regardless of the specific
point in the process, mental health professionals are apt to be most helpful to the court and other
decisionmakers (e.g., CPS workers and foster care review boards) by conducting and reporting clinical
assessments focused on prevention of further maltreatment and alleviation of the psychological harm that may
already have occurred. Drawing from research and theory about the nature, causes, and sequelae of child abuse
and neglect [see § 15.03], the clinician may be able to ask the “right” questions to identify the precipitants of
abuse and neglect in a specific case, the particular needs of the family as a whole and of family members as
individuals, and the nature of relationships within the family.
The nature of this inquiry is closely analogous not just to delinquency assessments but also to adult
sentencing evaluations [see §§ 9.07, 9.09], because both involve identifying the level of risk and the relative
efficacy of interventions that may increase safety. The sentencing analogy is also an apt reminder of the
problems with such assessments. Although research on the effectiveness of various dispositional alternatives
has vastly improved [see §15.03(e)], there is still much to learn. Therefore, even when experts are involved in
the relatively uncontroversial context of dispositional decisionmaking, they should have great humility in
making predictions and offering other opinions.
Moreover, because many of the determinations that courts make in the dispositional phases of child
maltreatment cases are similar to the judgments that mental health professionals make in treatment planning,
we repeat that clinicians need to exercise special care in avoiding ultimate-issue opinions [see § 1.04]. The
level of risk to children that society should and will tolerate, the question of whether children should be
removed from their homes against their parents’ will, and the circumstances justifying involuntary family
treatment are not “clinical” or “scientific” matters. Although clinicians may guide courts in identifying
dispositional options, mental health professionals do not have specialized knowledge about the embedded

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legal and moral issues.

(e) Termination of Parental Rights

Although the question of whether parental rights should be terminated sometimes arises at the initial
dispositional phase,230 that issue more commonly arises at a later hearing to review disposition. In some states,
the question will automatically arise if the child has been in foster care for a particular period of time, although
a more common procedure is to consider the question only if the state moves for termination.231 Termination
itself occurs in a single proceeding in most states, although the proceeding is bifurcated in some
jurisdictions.232 In the bifurcated procedure, there is an initial “factfinding” proceeding to determine whether
particular threshold conditions (e.g., parental unfitness) exist. If the threshold questions are answered in the
affirmative, a second “dispositional” hearing considers whether termination of parental rights would be in the
best interests of the child.
Even in cases of clear maltreatment, termination of parental rights is one of the most difficult decisions a
court is required to make.233 Permanent severance of family ties is recognized as an especially grave step,
perhaps even more severe than imprisonment.234 Furthermore, authorities are increasingly mindful of the
history of “legal abuse” of children by bouncing them among foster homes because the children are unavailable
for adoption. Amid this profound conflict, there is concern about the high risk of error, in view of both
vagueness of standards and unreliability of assessment. This risk is compounded by the fact that mental health
and social service evaluations are usually crucial evidence. The deck is usually stacked against the parents in
this regard, in that they typically have substantially less access to these professionals than the state has.235
In § 15.02, we noted the common problems of vagueness of standards for abuse and neglect, and reliance
in the standards on individual value judgments as to proper childrearing practices. These problems are often
compounded at the termination phase. Although some standards rely on relatively objective determinations of
fact (e.g., whether the parents abandoned the child, or whether the parents failed to maintain contact with the
child or to comply with orders of the court after the child was placed in foster care), even in these instances
termination typically is discretionary, based on the judge’s conclusion as to the child’s best interests.
More troublesome are statutes that permit termination if the parents are found to be “unfit,” usually
without further explication of the standards. Often these broad, value-laden grounds for termination are
accompanied by an express or implicit presumption of unfitness on the part of parents with mental illness,
intellectual disabilities, or drug or alcohol dependence. Nebraska, for example, permits termination if “the
parents are unfit because of debauchery, habitual use of intoxicating liquor or narcotic drugs, or repeated lewd
and lascivious behavior, which conduct is found by the court to be seriously detrimental to the health, morals,
or well-being of the juvenile.”236 Termination may also occur if “the parents are unable to discharge parental
responsibilities by reason of mental illness or mental deficiency and there are reasonable grounds to believe
that such condition will continue for a prolonged indefinite period.”237
The model statute recommended by the National Council of Juvenile and Family Court Judges also
permits termination based on a broad inquiry leading to a finding that “the parent [is] unfit or that the
conduct or condition of the parent is such as to render him/her unable to properly care for the child and that
such conduct or condition is unlikely to change in the foreseeable future.”238 The model statute directs the

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court to consider a number of factors (e.g., parental mental disorder, “excessive use of intoxicating liquors or
narcotic or dangerous drugs,” and “conduct towards a child of a physically, emotionally or sexually cruel or
abusive nature”), but it permits discretion as to the weight accorded these and any other relevant factors.239
When the child has been in foster care, the court is also required to consider the child’s relationship with the
foster family and the family’s suitability as a permanent home.240
Concern about the risk of error arising from such broad discretion has led to a trend toward more clearly
limited inquiry. This limitation takes two forms. One approach is to move the focus somewhat away from the
failings of the parents to the adequacy of the services offered, and procedures followed, by the state. It is
increasingly common to require a showing of “reasonable”241 or even “diligent”242 efforts by the state to
rehabilitate the parents.
A second approach, exemplified by the Juvenile Justice Standards, is to rely on relatively narrow and
objective standards. The Standards would permit termination at the initial disposition only if the child has
been abandoned; the child has been previously removed because of maltreatment, then returned to the parent,
and now requires removal again; or another child in the family has been abused and the parent has received
treatment thereafter. At the review phase, termination would occur if the child has been in foster care for six
months (if placed under age three) or one year (if placed when over age three) and cannot be returned to the
home.
Moreover, the Standards recognize several exceptions to automatic termination, many of which call for a
more psychological (albeit limited) inquiry. Termination would not occur in any of the following
circumstances:

A. Because of the closeness of the parent–child relationship, it would be detrimental to the child to terminate parental rights.
B. The child is placed with a relative who does not wish to adopt the child.
C. Because of the nature of the child’s problems, the child is placed in a residential treatment facility, and continuation of parental rights will
not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer
needed.
D. The child cannot be placed permanently in a family environment and failure to terminate will not impair the child’s opportunity for a
permanent placement in a family setting.
E. A child over age ten objects to termination.

Under the Standards, if termination is ordered, the court would be directed to consider whether the foster
home is suitable and whether “the child has substantial psychological ties to the foster parents.” If so, the child
would remain in the foster home even if the foster parents are unable or unwilling to adopt the child. Unlike
the Juvenile and Family Court Judges’ model statute, the Standards do not require consideration of this factor
in the termination decision itself, except insofar as it arises in paragraph D above.
Under the Standards, the involvement of mental health professionals in a termination proceeding would be
similar to that in a temporary dispositional assessment, in that the key question would generally be whether
the child could be safely returned home. There would be additional special evaluation questions relating to the
intensity of the parent–child relationship (paragraph A) and the adoptability of the child (paragraphs C and
D).
Under the Juvenile and Family Court Judges’ model statute and the statutes prevailing in most
jurisdictions, the nature of questions posed to mental health professionals in a termination proceeding is also

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likely to be very similar to that in any dispositional review. The focus of the inquiry is likely to be slightly
different, however, in that the prognosis for successful treatment of the parent is the key question. The mental
health professional might also be asked to evaluate the adequacy of efforts to treat the parent and the nature of
the child’s relationship with the foster parents.

(f) Mediation and Other Alternative Processes

In § 16.01(b)(1), we review the issues involved in mental health professionals’ assumption of dual roles as
evaluators and mediators in child custody disputes arising in divorce. Although the issues involved in such
duality of roles in child protection cases are at least as serious, they have received little attention in this context
from other commentators. The reason is simple: Until relatively recently, programs for alternative dispute
resolution (ADR) in child protection cases were virtually nonexistent. The conventional wisdom was that
mediation is inappropriate in cases in which one party has been subjected to abuse. Even more fundamentally,
the adversary model is seen as optimal for child protection cases; in this view, the state ought to prosecute
parents who abuse or neglect their children (although the prosecution may be civil rather than criminal).
Opponents of ADR in child protection cases argue that a compromise is apt to threaten the child’s safety, and
that rehabilitation will occur only if the state exercises coercive authority.
About 30 years ago, these assumptions began to be questioned among professionals involved in child
protection. In a report of a symposium convened by several national legal organizations, Davidson noted
several scenarios in which mediation might be helpful in child protection cases: (1) conflict between
caseworkers and parents about the dispositional plan; (2) conflict between parents and relatives, when such
conflict is interfering with implementation of the dispositional plan; (3) conflict among foster parents, the
child welfare agency, and biological or adoptive parents; and (4) conflict among the professionals involved in
such cases.243 In each instance, the goal would be to facilitate the prompt establishment or implementation of
a workable plan to protect the child, and to do so in a manner that minimizes trauma to the child and the
family.244 There may even be instances in which ADR is useful prior to adjudication in reaching an agreement
between the family and neighbors or professionals about the range of behaviors that constitute a threat to the
child and about some means of reducing or preventing them.245
Some forms of ADR show promise as a means of building community and extended-family responsibility,
and thus of diminishing families’ isolation.246 Perhaps the foremost example is the family group conference, a
procedure pioneered in New Zealand in 1989 in its overhaul of its juvenile justice and child protection
systems.247 Drawing from Maori traditions, New Zealand began relying on meetings of family groups—
extended families and others, such as football coaches and family friends, who are important people in the
lives of family members—rather than courts to create and confirm dispositional plans. This concept has now
been adopted in a number of North American jurisdictions, although typically as a mechanism for diversion
rather than disposition.248
As a means of responding to these possibilities and attempting to develop a helping and cooperative
approach rather than a prosecutorial and adversarial stance, ADR in child protection cases is no longer off the
table.249 A landmark in that regard was publication of a special issue of Family Court Review on child
protection mediation in 2009.250 Within that issue, Nancy Thoennes published a review of research on child

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protection mediation that had been published between 1990 and 2005.251 The studies reviewed were
undertaken in 13 states and the District of Columbia.252 In most programs, 60–80% of the cases resulted in
an agreement; about 10–20% resulted in partial settlements.253 The cases ranged throughout the process, from
preadjudication to termination of parental rights, with settlement rates higher in the early phases.254 The
plans that emerged from mediation were similar to those in conventional proceedings, although mediation-
based plans were more likely to deal with visitation by parents of children in out-of-home care.255 Settlements
were reached more quickly in mediation and at less cost.256 Parents and extended families were more engaged,
and they felt that they had a say.257 Parental compliance was better than in conventional processes, and there
was some evidence for improved relationships among the parties.258
With this largely positive evidence, a working group was convened by the Association of Family and
Conciliation Courts (AFCC) to draft Guidelines for Child Protection Mediation.259 Adopted by the AFCC
board of directors in 2012, the Guidelines are grounded on principles of inclusivity, collaboration, timeliness,
safety, confidentiality, ethics (e.g., voluntariness), and quality assurance.260 They provide a framework for
mediation at every stage from prepetition to adoption.261 The Guidelines also address the roles of the
participants, the process of mediation, possible resolutions to special problems (e.g., a history of violence), and
monitoring and evaluation.
In the light of these developments, four points are noteworthy. First, the audience for information
generated in dispositional evaluations is increasingly likely to be a nonjudicial decisionmaker. Second, as the
emphasis on voluntary dispositions (including dispositions involving private parties outside thefamily)
increases, the range of possibilities to consider expands. Third, clinicians must guard against inadvertently
being drawn into the role of decisionmaker or advocate when they have represented themselves as
investigators or evaluators. Fourth, the AFCC Guidelines are apt to be helpful in finding workable pathways
through the challenging practical and ethical issues in participation in child protection mediation.

15.05. SPECIAL POPULATIONS

(a) Parents with Mental Illness

The various special provisions for termination of the rights of parents with mental disabilities noted in §
15.04(e) have been subject to considerable litigation. There are two broad constitutional challenges to these
provisions. First, it is argued that the statutes violate equal protection, because there is no compelling basis for
discrimination on the basis of a parent’s mental condition. Second, particularly when the statutes do not
expressly require a finding that a parent’s condition is directly and adversely related to his or her competence
as a parent, there is a claim that due process is violated. Relatedly, there may be an argument that provisions
for termination of the parental rights of parents with mental illness are so vague as to violate due process.262
Nonetheless, in cases considering termination of parental rights of parents with mental illness or substance
abuse problems, appellate courts have almost uniformly upheld the order to terminate.263
In these cases, the state has generally taken at least some care to relate the parents’ disorders to childrearing
practices, and the results of the various cases may have been proper. However, the rationality of a lower
threshold for termination of the parental rights of parents with mental disabilities is questionable. Perhaps

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contrary to intuition, having a parent with mental illness—even serious mental illness—is in fact not very
predictive of inadequate adjustment in a child. Although children of parents with mental illness are at
relatively high risk for significant developmental problems, most develop normally.264 Insofar as children of
parents with mental disorders are prone to such disorders themselves, there is still a question whether the
developmental risk is a result of parental incompetence (rather than, e.g., genetic factors).265 The state would
have no interest in termination of parental rights unless a child’s welfare would be substantially improved in
another home. Moreover, given that parental physical illness understandably also increases children’s stress
and corollary symptoms,266 questions remain (on equal protection grounds) why stress resulting from parental
mental illness should be given heightened consideration in intrusions on family integrity.
In the meantime, the problem of support for parents with serious mental illness and their families deserves
greater attention. The majority of women with serious mental illness marry,267 and their birth rate approaches
that in the general population.268 Yet adult mental health programs generally give insufficient attention to
parental issues. In fact, the programs’ management information systems typically do not even provide for
recording information about parental status.269
The research that has been conducted on parenting by individuals with serious mental illness is scant, and
much of what is available is arguably inapplicable to an understanding of ongoing parenting in the
community. Much of the research on infant care by mothers with serious mental illness has been conducted
on small samples in specialized inpatient programs outside the United States.270 This research shows that
some of these mothers apparently care for their babies normally, even when they are in the most acute phase
of psychosis.271 Combined with evidence about child outcomes, such a finding runs against presumptions
present in many states for termination of parental rights of parents with mental illness. Clearly, however, there
is a need for research on parenting by individuals with mental illness in families living in the community and
containing children of various ages.272 For instance, one study suggests that maternal mental disabilities are
associated with poorer academic performance by children, primarily because of less parental confidence.273
Similarly, as psychopharmacological advances permit greater independence of adults with serious mental
illness, there is a need for parallel development of supports for them as parents and for their children.274
Preliminary investigations indicate that effective interventions can reduce psychological dysfunction in the
children of people with mental disabilities.275
Absent a more extensive literature on such programs, clinicians conducting dispositional evaluations are left
to their general knowledge of social support and mental health services in suggesting alternatives that might
enable families of parents with serious mental illness to live together with safety for the children. In the
meantime, neither clinicians nor legal authorities should infer from a diagnosis that a parent is unfit. To guard
against such inferences, clinicians should make clear in their reports and testimony that conclusions about
parental difficulties based on the presence of a mental illness per se are at present scientifically unsupportable.

(b) Parents with Intellectual Disabilities

There is also weak empirical support for special provisions for terminating the parental rights of persons with
intellectual disabilities. It is true that a high proportion of mothers who are in the child protection system for
neglect have intellectual disabilities.276 But it is not clear that this should be so. Most parents with intellectual

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disabilities have only mild form of the disorder, and people with mild intellectual disabilities are typically
capable of holding jobs and living independently under reasonably normal conditions.277
Moreover, mild intellectual disabilities are heavily related to socioeconomic status.278 Thus, as with mental
illness, it is unclear whether any heightened risk of neglect that does occur results from parental
incompetence, apart from the well-documented effects of poverty [see § 15.03(d)(2)]. This fact also means
that a heightened review of the competence of parents with intellectual disabilities is in effect a heightened
review of parental competence of lower-income persons. The risk of capriciousness in application of the policy
is obvious.
That being said, intellectual disabilities are often among the many challenges faced by the neglectful
families that now predominate in the child protection system, and this fact needs to be considered in the
design of dispositional plans, which might often include parental training.279 A related consideration is the
possibility that the children have intellectual disabilities. Although most children of parents with mild
intellectual disabilities are not known to be similarly affected, parents with intellectual disabilities are more
likely than other parents to have children with such disabilities. The risk in such instances is about 20%, and
rises substantially if both parents have intellectual disabilities and they have already had a child with
intellectual disabilities.280

(c) Parents Who Abuse Alcohol

Although parental use of illegal drugs has attracted the attention [see next subsection], the far greater problem
in terms of incidence rates in child protection caseloads is alcoholism.281 Alcohol abuse is also a common
factor in sexual abuse cases.282
Notwithstanding that parental alcohol abuse and alcohol dependence have long been known to be common
problems that may be plausibly hypothesized to have serious effects on parent–child relations, there is limited
research from which to draw conclusions about the risks incurred by children of alcoholic parents. In a review
of the literature in 1978, Jacob et al. uncovered only 16 studies of such children, and only one of those studies
included appropriate comparison groups.283 Most of the studies on the effects of mothers with alcoholism on
their children have looked at toxic effects on drinking during pregnancy, not the adequacy of childrearing.
The childrearing outcome literature that does exist gives reason for caution in assuming that alcoholism in a
parent is often related to poor socialization of a child. In a comprehensive review of the literature in 1983,
Vaillant concluded: “Perhaps for every child who becomes alcoholic in response to an alcoholic environment,
another eschews alcohol in response to the same environment.”284
In another review,285 Rotunda et al. reached similar conclusions. They noted that relative to families in
which parents are not dependent on alcohol, families with alcoholic parents are characterized by higher levels
of negativity, conflict, and competitiveness, and lower levels of cohesion, expressiveness, and problem-solving
capacity286 (a finding replicated in other more recent studies as well287). There is, however, no family pattern
that is unique to families with alcoholic parents; similar problems are experienced in families facing other
challenges.288 Most important for legal policy and forensic assessment is the great variation among children of
parents with alcoholism. Adult children of such parents do not differ from other adults on personality
measures, although they are more likely to have alcohol-related and physical problems.289 Of course, the

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greater risk of alcohol use disorders may be the product of genetic predisposition.
Although parental alcoholism is undoubtedly a factor that should be considered when one is designing
dispositional plans, there again is good reason not to jump from a diagnosis of alcoholism to a conclusion
about parental unfitness. One specific dynamic that ought to be considered in dispositional planning,
however, is the sense of isolation commonly experienced by families of alcoholic parents, especially when the
parents are “wet” (i.e., in an episode of active drinking).290 In view of the relation of this variable to child
maltreatment [see § 15.03(d)(2)], there is special reason to make enhancement of social support an element of
dispositional plans when parental alcoholism is an issue. Research also suggests a particular need to consider
mechanisms to monitor child supervision, especially when both parents have alcohol problems.291

(d) Parents Who Use Illegal Drugs

During the 1990s, policymakers gave extraordinary attention to the problem of parental use of illegal drugs.292
Although the ongoing debate on this issue has focused in large part on prenatal exposure and related policy
responses,293 research thus far suggests that the bigger issue concerns parental behavior per se.294 Prenatal
cocaine exposure may have some subtle developmental effects (notably, impaired ability to organize behavior
and temperament problems), but the majority of cocaine-exposed infants are not significantly developmentally
delayed, and the quality of early caregiving is important in mediating whatever direct effects the prenatal toxic
exposure may have.295 Likewise, research on the detrimental effects of parents’ methamphetamine use
suggests that the core problem is the care that children receive from such parents rather than the prenatal toxic
effects.296
Thus the primary focus should be on the care that children receive from drug-abusing parents. For
example, a study comparing mothers in a substance abuse treatment program with mothers in Head Start
programs in southeastern Michigan found substantially more frequent moves, less contact with the fathers,
and less adequate housing, child care, and toys in the former group.297 Nearly half the children of the
substance-abusing mothers had been in foster care; none of the children in Head Start programs had had such
an experience.298 Substance-abusing mothers commonly reported periods of psychological unavailability and
physical neglect of their children.299 Similar findings have been reported by other researchers.300
Persons using methamphetamine—in 2015 estimated to include 14 million Americans301—may present an
even greater problem. While the effects of methamphetamine are similar to those of cocaine (e.g., increased
heart rate and energy levels, irritability, mood swings), the effects are generally more intense and much longer-
lasting. Additionally, in comparison to cocaine, methamphetamine is relatively simple and inexpensive to
manufacture; as a result, many of those who use it choose to manufacture the drug themselves, often in their
homes. Parents who engage in such home manufacture subject their children to toxic fumes as well as risk of
accidents from chemical spills or explosions.302
Such research findings indicate the level of the challenge involved in treating families in which parents are
using illegal drugs. It is not clear, however, how special the challenge is. Drug abuse commonly occurs in a
context in which there are other impulsive and antisocial behaviors, as well as a panoply of social and
economic problems.303 Similarly, child maltreatment, especially neglect, typically occurs in a complex
situation in which there are many serious problems. Accordingly, in cases of parental drug abuse, like other

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instances of child maltreatment, an integrated multifaceted dispositional plan usually is needed.
For example, Magura and Laudet recommended that programs for substance-abusing parents and their
families include the following elements:

access to physical necessities including food, housing, and transportation; life skills training including parenting, financial management,
assertiveness training, stress management and coping skills; educational and vocational assessment, counseling, training and opportunities,
including language and literacy competency; counseling on topical issues including substance abuse and family therapy; health education and
medical care; child care; social services, social support, psychological assessment and mental health care; family planning services; and
planned, continuing care after program completion.304

Similarly, a review of the scores of demonstration programs that were funded by the Pregnant and
Postpartum Women and Infants Program of the Center for Substance Abuse Prevention (CSAP) showed
that the best programs looked like well-conceptualized family service programs in other agencies. The typical
CSAP-funded demonstration program for substance-abusing women and their families included the
following elements:

an array . . . [of] services that includes education and services to meet the diverse and complex needs of families;
practical help, including transportation, child care, job seeking, emergency assistance, housing, food, and fun;
recognition and use of extended family, neighbors, friends, and tribal members who seem to have natural ability to understand and help;
locations (and times) that are convenient for participants;
novel approaches to education and counseling tailored to special needs and usually developed from earlier efforts that were less successful
than was hoped;
support even after program services are complete, an ongoing network of help, support, and advice;
collaboration across boundaries that previously had not been crossed, whether between a tribal community and a dominantly European-
American town or businesses, human services [or] law enforcement.305

Although the challenge should not be minimized, it should not be assumed that the fact of parental drug
use necessarily means that the situation cannot be made safe for the child or that the parent cannot recover. In
a report to Congress, what was then called the General Accounting Office (GAO) summarized research and
clinical experience on treatment of cocaine-dependent individuals:

[T]hree cognitive/behavioral treatment approaches—relapse prevention, community reinforcement/contingency management, and

neurobehavioral therapy—have shown early promise with cocaine-abusing and cocaine-dependent clients, many of whom are classified as
“hardcore” users. Clients treated with these approaches have demonstrated prolonged periods of cocaine abstinence and high rates of
retention in treatment programs. For example, more than 60 percent of the cocaine-addicted clients who attended a relapse-prevention
program in New York were continuously abstinent from cocaine during the 6- to 24-month follow-up period; more than 70 percent
completed the relapse prevention program. About half the cocaine-dependent clients receiving community reinforcement/contingency
management in a Vermont outpatient program remained continuously abstinent through 4 months of treatment; 58 percent completed the
entire 6-month course of therapy. And 36 percent of the cocaine-using clients enrolled in a California neurobehavioral therapy program were
abstinent from cocaine 6 months after entering treatment; the average length of stay in the program was 18 weeks.306

Although this subsection is entitled “Parents Who Use Illegal Drugs,” the most difficult assessment
problems may occur with parents who use psychoactive drugs legally. In that regard, special challenges have
arisen in child welfare agencies in relation to parents who use marijuana legally.307 Concerns involve not only
parental impairment but also child access, especially in cases of accidental poisoning—through a child’s
attraction, for example, to edible products (e.g., “gummy bears” laced with cannabis) or colorful packaging.
Difficult issues have also arisen in regard to parents’ facilitation of children’s medical use of marijuana, to deal
with uncontrolled epilepsy or side effects of cancer treatment.

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 Questions of parental impairment as a result of use of a legal drug require especially careful attention to
determination of the relationship between the drug use and the quality of child care. At the same time,
minimizing risks to children because of the drug’s availability should be high on policymakers’ agenda.308
Some analogous problems are present in instances in which parents become dependent on opioids, often at
least initially through medical prescriptions.309 In some rural states, opioid use is a factor in large numbers of
child welfare removals (e.g., in Vermont, 80% of removals of children under age three).310 The troublesome
element, of course, is the clouded consciousness caused by opioids. Not only may parents fail to supervise and
care for their children when they are under influence of large doses of the drugs, but children may also be
traumatized by the experience of seeing their parents in such a situation.311 The issues for child welfare
authorities because of the opioid epidemic may be “ordinary” in the sense that opioid addiction becomes part
of a web of problems for a family with children. However, the circumstances of addiction may not match
those that are typical with other addictive drugs.

(e) Parents Who Experience Intimate-Partner Violence

Another category of children who may be at risk consists of those cared for by a couple involved in an abusive
relationship. In such situations, two major features of the system affect how a child’s situation is framed. First,
advocates for abused and neglected children, including the legally designated child protection authorities
(CPS), have historically been at odds with—or, in the best case, avoided interaction with—advocates for
abused women.312 There are multiple reasons for this mutual suspicion. Perhaps with some oversimplification,
the following issues stand out.

• In many jurisdictions, an abused woman risks losing her children in a child protection proceeding, and
even receiving criminal sanctions—either for (1) failing to protect the children from maltreatment (which
could simply consist of allowing them to be exposed to the violence perpetrated against their mother); or (2)
neglect, because the children lack a permanent home and other economic assets after the mother leaves the
abusive partner.313 Hence advocates for abused women are apt to regard child advocates in general and CPS
in particular as enemies prone to “blame the victim.”
• Although half of the residents of their shelters are children, programs for abused women often lack
special resources for children.314 The programs’ focus is not on healing of the family, but instead on
empowerment of the mother, who is trusted to make the right decisions for her family. Consistent with this
ideology, advocates for abused women zealously guard the autonomy and privacy of women in shelters and
related programs. Accordingly, they are likely to construe mandated reporting laws narrowly. Hence child
protection authorities are apt to regard advocates for abused women as unconcerned about the children and as
obstacles to their protection.
• Providers of domestic violence services generally regard intimate-partner violence as the behavior of a
“bad guy” (the perpetrator) who assaulted a victim and should be restrained and punished. On the other hand,
the child protection system is premised on the assumption that child maltreatment is a family problem that
should be treated, although the “discovery” of sexual abuse in the 1980s challenged this perspective.
• Domestic violence programs are typically grassroots community organizations.315 CPS agencies are public

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bureaucracies, which strive to be professional in their approach to clients. Hence the two types of
organizations typically have strikingly different cultures.

In short, the desire to respond to the societal problem of intimate-partner violence can clash with the need
to plan a disposition gauged to an individual family’s concerns, and thus can impede efforts to find a practical
solution to the needs of children in a volatile situation.
A second background factor influencing child protection in abusive situations is the fact that multiple legal
actions may be pending in diverse courts, sometimes with different judges in the same court. Even if the only
event currently leading to legal action is the alleged assault on the child’s mother, pending actions may include
a dependency petition (civil child protection case) alleging neglect of the child; a criminal complaint pending
against the father; a cross-complaint against the mother who is alleged to have struck the father (perhaps in
self-defense); a request for a restraining order against the father (an order that itself may include custody and
visitation provisions); and a dispute over custody and visitation in the context of separation or divorce. Given
that multiple forms of victimization are common if a child experiences any such episode,316 other matters
(e.g., a status offense petition against the child) may already be pending. It is easy to see that pitfalls may await
experts called to help to illuminate such a complex, possibly dangerous, and emotionally and even politically
charged set of circumstances.
The situation is often complicated still further by the presence of statutory reforms that may not be having
their intended effects. Concerned by evidence that the effects on children of exposure to intimate-partner
violence are comparable to those of direct victimization317 (on average318), most legislatures and even some
appellate courts took action in the 1990s to protect children from violence between adults in the home.
According to Weithorn,319 who has surveyed the various strategies adopted, by far the most common reform
(enacted in almost all of the states) is a statute to enable courts to deny custody to, or limit visitation by, a
parent who has been abusive toward the other parent.320 Such provisions effectively set a limit on “friendly-
parent” rules present in the majority of states, which ordinarily require courts to award custody to the
divorcing parent who is more likely to allow access to the other parent. In a minority of the states, the statutes
go further, by converting family violence from a factor in determining the child’s best interests to the trigger
for a rebuttable presumption against sole or joint custody by the abusive parent. In a rapidly growing number
of states, the magnitude of criminal penalties is increased if an assault against an intimate partner occurs in the
presence of a child.321 Other states have changed their statutes on child abuse and neglect,322 providing that
exposure to intimate-partner violence is a ground for invoking dependency323 or criminal jurisdiction,324 or is
a factor to be considered in child protection cases.325
In some cases, however, these reforms have backfired. In Minnesota, a statute was enacted in 1999 to make
a child’s exposure to violence in the household per se evidence of neglect subject to mandated reporting.326 In
at least two instances, CPS sought to learn the names of all families with children in shelters for abused
women—once by accessing the state database for reimbursement of shelter care, and once by calling a shelter
and demanding its roster. Reports to CPS doubled, with a projection that the caseload would ultimately reach
500% of its previous level. In response, the legislature repealed the statute less than a year after it went into
effect. In an analogous story, also in 1999, Florida enacted Kayla’s Law in response to several highly
publicized cases, including one in which six-year-old Kayla McLeod was killed by her father in an incident

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that occurred after four calls had been made to the CPS hotline.327 The resulting statute eliminated various
state officials’ discretion in filing dependency petitions in cases in which a child’s exposure to intimate-partner
violence was an issue. Again, within a year, the relevant language was amended to making filing discretionary,
with violence in the household being a factor in determining whether to give the case greater attention. The
impetus for the rapid legislative correction was an “overflow of cases . . . after compliance with [Kayla’s Law]
nearly paralyzed the state’s ability to respond to any maltreatment cases.”328
The Minnesota and Florida experiences in child protection policymaking at the turn of the millennium are
all too familiar in the modern history of the child protection field. Whether the discovery of the year (no
matter how serious each may be) is Baby Doe, in utero drug exposure, legal-system-induced trauma, or
exposure to domestic violence, each problem definition or policy response is, as ABCAN lamented, “an
episodic response to a chronic difficulty,”329 and each such fragmentary action contributes to a system that is
suffering from “chronic and critical multiple organ failure.”330 The problems that children and their families
face in instances of intimate-partner violence are serious and frequent enough that they merit careful attention
by policymakers and child protection authorities. The interests at stake and the clinical phenomenon itself are
sufficiently complex, however, that the assumption that well-intentioned action will be benign at worst in its
effects on children is not one that should be made lightly.331
Caution is especially warranted about relying on assumptions for which the evidence is little more than an
“Everybody knows . . . ” assertion. The information that is available from small, single-site studies gives ample
additional reason for modesty in making ideologically grounded assumptions, at least until large-scale, more
representative studies are available. For example, in one study, frequency of father visitation was shown to be
negatively related to both internalized and externalizing symptoms among preschool children whose mothers
were subjected to abuse by the fathers.332 In a second study, adjustment of both mothers and their young
children (ages two to eight) generally improved within six months after the mothers left the partners who had
been violent toward them.333 Furthermore, the mothers in the shelter sample in the latter study showed no
less competent parenting than did a matched comparison sample of low-income women not known to be in
violent relationships.334 In short, clinicians would be wrong (at least in part) if they started from the
assumption (1) that men who are abusive toward their women generally pose threats to their young children;
(2) that relationships with fathers are nearly always important to children; or (3) that women in abusive
relationships are often too preoccupied with their own situations to provide adequate care for their children.
Nonetheless, all of these ideas have been at the root of some policy responses to children exposed to intimate-
partner violence. These errors should serve as warnings to clinicians who would confidently make predictions
about the likely effects of various visitation arrangements for children in such situations.

(f) Parents Who Are Incarcerated

Another troubling situation affecting many children, and one that has been largely ignored until recently, is
the imprisonment of parents. By 1997, almost 1.3 million children in the United States had a parent in prison
—a number that had tripled since 1986.335 By the end of 2002, more than 2% of children under age 18 had a
parent in prison.336 This huge increase reflected in large part the rapidly growing incarceration of women (an
increase of 114% from 1990 to 2001).337 Of course, when mothers are incarcerated, living arrangements for

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their children are apt to be disrupted.
In most such cases, children live with grandparents or other relatives, but about 10% enter foster care.338
This latter group of children is of particular concern, because under current law the chance that they will lose
their parents (thus compounding any sense of abandonment, grief, and shame they already have) is
significant.339 Under the Adoption and Safe Families Act (ASFA) of 1997, a state must cease efforts to
reunify the family and begin instead to terminate parental rights when a child has been in foster care for 15 of
the most recent 22 months.340 After ASFA was enacted, termination proceedings involving incarcerated
parents more than doubled (at least in part because most sentences are in excess of 15 months, even for drug
offenses or nonviolent property crimes341), and more than 90% of termination petitions brought against
incarcerated parents were granted.342 Although ASFA requires that “reasonable efforts” be undertaken to
reunify the family,343 three-fourths of the states permit waiver of this requirement if a parent is incarcerated,
usually for a particular period of time.344
Clinicians and lawyers should nonetheless be aware that states may avoid the ASFA time limit and thus
refrain from filing a petition for termination if there are “compelling reasons” to do so.345 Regular visitation
and communication in the context of a strong bond between a parent and child may provide such reasons,
especially if the parent has made diligent efforts to fulfill the requirements of a case plan.346 Of the few states
that have policies aimed at reunifying families separated by incarceration, most focus on facilitation of regular
communication and visits.347 A few states also provide for family counseling and education programs for
inmates who are parents.348 In light of these facts, a clinician who is asked to evaluate whether compelling
reasons exist to extend the ASFA guidelines should examine the parent’s efforts to maintain a relationship
with the child despite the limited opportunities available, as well as the extent to which the parent has taken
advantage of existing programs. The clinician also should interview the parent and child, and gather any other
indicators of the strength of their emotional bond.

(g) Biologically Related Foster Parents

An evaluator may be asked to address not only what might be done to increase safety for a child, but also who
might do it. A particularly common question concerns the optimal involvement of relatives, particularly
whether they might provide appropriate supplementary or substitute care (e.g., as noted in the preceding
section, when a child’s mother is imprisoned). Such involvement has become known as “kinship care.”
In part because of the phenomenon of grandparents’ assuming responsibility for care of their grandchildren
because their daughters are abusing drugs,349 there has been an extraordinary increase in kinship care,
especially in urban states. The exact magnitude of the increase is not known, because many states do not track
kinship care cases separately.350 There are, however, some striking examples. For example, the prevalence of
kinship care in New York City grew from 1,000 children in 1986 to 24,000 in 1992351 to 165,000 in 2000.352
The majority of states now have an explicit policy preference for use of kinship care rather than foster care
outside the extended family, and most of the remaining states frequently use kinship care.353
Congressional action in the last two decades aimed to increase the frequency of use of kinship care and the
frequency with which the question of kinship care is raised in dispositional hearings. By adding a new section
to Title IV-E of the Social Security Act (the title providing for funds to states for foster care), the federal

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welfare reform bill enacted in 1996 appeared to create a presumption in favor of kinship care.354 Specifically,
Congress required states to “consider” giving preference to an adult relative over nonrelative caregivers when a
child is placed outside the home, provided that the relative meets relevant state standards.
Several potential advantages of kinship care underlie these developments:

Enabling children to live with persons whom they know and trust;
Reducing the trauma children may experience when they are placed with persons who initially are unknown to them;
Reinforcing children’s sense of identity and self-esteem, which flows from knowing their family history and culture;
Facilitating children’s connections to their siblings;
Encouraging families to consider and rely on their own family members as resources;
Enhancing children’s opportunities to stay connected to their own communities and promoting community responsibility for children and
families; and
Strengthening the ability of families to give children the support they need.355

On the other hand, skeptics about the increasing use of kinship care worry whether relatives will exercise
sufficient control over parents’ access to the children, whether the relatives’ own parental skills are likely to be
adequate, and whether the often elderly caregivers will have the energy and resources356 to provide care to
children with great needs. These concerns are heightened by the fact that licensing and supervision for relative
caregivers are typically less stringent than for nonrelative foster parents.357
Though research on kinship care is in its infancy, a number of clear facts have emerged from the work thus
far. First, clearly there is more stability in kinship care than in other foster care. Children in kinship care remain
in care longer than do children in other forms of out-of-home placement, but they are much less likely to
require multiple placements.358 A study of relative caregivers in Baltimore graphically illustrated the stability
in kinship care.359 Almost all the relative caregivers indicated that they would care for the children as long as
necessary,360 and three-fourths of the children had in fact been moved only a single time (from their parents
to the caregivers).361 About three-fourths had not moved in the past year.362
The lack of disruption in placement is probably desirable in itself, and it is likely to facilitate a smooth
transition into adult roles for adolescents in care.363 However, caseworkers may use the stability as a basis for
avoidance of case planning and services. For instance, most caseworkers (81%) worked with a family for less
than a year before moving to other cases.364 This avoidance is inconsistent with public policy, but may or may
not be inconsistent with the child’s interests and his or her sense of permanence:

[Q]uestions have arisen about the extent to which permanency planning is actually being carried out with children in kinship care and the
appropriateness of these provisions for children in kinship care. What “reasonable efforts” are required to reunite children in kinship care
with parents? Are the alternative permanency planning options, particularly adoption, appropriate? When the placement with kin is stable,
safe, and likely to last until the child reaches adulthood, what is the appropriate ongoing role of the state in the lives of the child and the
family?365

Second, children in kinship care tend to have needs at least as great as those of children in nonrelative foster
care. The Baltimore group found that children in kinship care had low levels of immunizations and dental
care, and that they were at high risk of hypertension, uncorrected vision and hearing problems, anemia,
asthma, dental problems, stunted growth, obesity, psychosomatic problems, behavioral problems, depression,
poor school achievement, and poor attention.366
Third, kinship care providers typically do not have the same levels of resources available to them that

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nonrelative foster parents do. Kinship care providers tend to be much less affluent than nonrelative foster
parents.367 Such providers are generally older and are often single and poorly educated.368 They rarely have
access to support groups for foster parents,369 or to other services such as respite care, which are often
inadequate but nonetheless more often available to nonrelative foster parents.370
Fourth, although kinship care providers often have grave doubts about the parental ability or motivation of
the biological parents, they are more likely than nonrelative caregivers to facilitate a continuing relationship
between the children and the parents, as well as other family members. In a substantial proportion of kinship
care cases (the majority in some jurisdictions), the relatives volunteered to provide foster care; indeed, they
often were the reporters of suspected child maltreatment.371 Accordingly, kinship care providers are
substantially less likely than caseworkers to support reunification.372 However, they also are more likely than
nonrelative foster parents to perceive themselves as responsible for maintaining the children’s relationships
with the biological parents and responding to the children’s sense of loss.373 Therefore, visitation occurs more
frequently and naturally in kinship care than in nonrelative care.374
Fifth, perhaps reflecting cultural norms of care by extended families,375 kinship care is much more often the
disposition in cases arising in African American families than in other ethnic groups.376 In California, for
example, half the children in kinship care are African American—a proportion twice as large as in foster care
overall.377
In short, kinship care shows promise as a way of meeting foster children’s right to a family environment,378
but questions remain about its implementation:

If kin can be prepared to assume their new role, if they can be assisted or trained in advocating for health, mental health, and educational
services for these children, and if they can provide suitable protection for children in homes where boundaries may be blurred by relationship
and history, kinship foster care may uniquely meet the best interests of many (perhaps the majority of) foster children. If, however, we view
kinship care as a cheap alternative to foster family care and provide little to bolster the significant work involved in caregiving, we will create
a two-tiered system. Given the striking differences found in several of these studies in the services and supports kinship caregivers—largely
single women of color—received from their child welfare agency, this two-tiered system already appears to be in place.379

Thus evaluators need to be aware of presumptions in many states in favor of kinship care, and they should
consider the support that may be available to these families (with or without a change of residence for the
children) from within the kin network. At the same time, as with other living arrangements, clinicians
conducting dispositional evaluations should consider the nature of the supports that will best facilitate healing,
safety, and healthy development for the children.

15.06. THE TECHNIQUE OF ABUSE/NEGLECT EVALUATIONS

(a) Content of the Evaluation

Two points should be given special attention in planning dispositional evaluations in child protection cases.
First, such an evaluation should be functional. It should focus on the parent’s competence as a parent, as well
as the ways in which the child’s safety can be enhanced. Conclusions about adequacy as a parent should not be
based on general mental status evaluations; diagnosis tells little about an individual’s parental abilities,
motivation, and practices. Indeed, ultimately the question should shift from parental competence as a personal
characteristic, because the critical problem is one of relationships.

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 Second, given what is known about the multiplicity of factors involved in child maltreatment [see § 15.03],
the evaluation should be wide-ranging. Of course, both the parent (or parents) and the child (or children)
should be interviewed. Whenever possible, the child and parent should be observed together [see § 19.13(a)
for an illustrative report], preferably in natural settings. But the evaluation should go beyond this dyad and
beyond psychology. There should be assessment of relationships outside the immediate family that might be
used, perhaps with some enhancement by professionals, to ensure social support (sometimes including
monitoring) for the family. In considering such alternatives, thought should be given to ways that the potency
of social support could be maximized by making it reciprocal (e.g., between families). Similarly, attention
should be given to the family’s need for material support and steps that might be taken to resolve the family’s
practical problems.
Collection of records of the family’s involvement with helping agencies is especially important in
dispositional evaluations. At a dispositional review, the degree of improvement in the situation, the
adjustment of the child, and the adequacy of services are typically all at issue, and agency records (often
followed by interviews of service providers) will usually be necessary to address these issues fully. Of course,
knowledge of past treatment and its outcome is helpful in developing recommendations about possible
interventions and reaching conclusions about prognosis. Social service and police reports, in combination with
parent interviews, may also be useful in identifying possible precipitants of maltreatment—information that is
often helpful for both designing interventions and determining prognosis.
Although clinicians should take a broad approach to dispositional assessment in child protection cases, they
should do so humbly. As the review in § 15.03(e) indicated, the scientific foundation is weak for predictions
about threats to the child’s safety as well as the likely efficacy of various interventions, alone and in
combination. Although enough is known about the factors that cause and maintain child maltreatment to
provide the foundation for thoughtful dispositional planning (at least in regard to issues that should be
addressed), it must be acknowledged that the selection of interventions is more art than science. There is little
basis for confidence. Predictions, whether implicitly or explicitly made, should be framed accordingly.

(b) Interviewing the Child

With some ambivalence, we are including a section on interviewing the child. As discussed in §§ 15.04(a) and
15.06(a), we believe that the increasing reliance on mental health professionals as investigative interviewers (in
effect, as law enforcement agents) in child protection cases is unfortunate. We are including a brief discussion
of the subject, however, both because of the interest in it (clinicians may reasonably act as consultants to
investigative interviewers, even if the clinicians do not assume such a role themselves) and because of the need
for child interviews as part of dispositional assessments. Even if the clinician does not assume the job of
determining whether a violation of law occurred, finding out the child’s perception of events may be quite
useful in determining precipitants for incidents of abuse and assessing the nature and strength of the child’s
relationships. Of course, interviewing the child is also important for assessing the child’s individual needs for
treatment and social support.
In that regard, it is important not simply to assume what the child must feel and what he or she has
experienced. As we observed earlier, the field of child protection has been rampant over the years with

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unstudied assumptions about what “everybody knows” that ultimately have proven to be distorted or simply
incorrect. Notably, the “trauma” approach to sexual abuse and related legal involvement simply cannot be
taken for granted. For example, the average severity of demonstrable harm resulting from sexual abuse is less
than that resulting from some other forms of maltreatment that rarely elicit criminal prosecution380 (although
this of course negates neither the wrongfulness of such violations of personal integrity nor the severe harm
experienced by some sexually abused children). Similarly, there is evidence that conventional clinical wisdom
about the way disclosure of sexual abuse typically unfolds is incorrect.381
We turn then to some general comments about interviewing children in child protection cases. Since the
mid-1980s, researchers have devoted extraordinary attention to issues related to children’s ability as
witnesses,382 especially their suggestibility [see § 7.07(b)(2)].383 In our view, this concern has been
overblown.384 Research shows that most children are resistant to suggestion for salient events, although the
risk of inaccurate reports in response to direct questions is highest among very young children (e.g., three-
year-olds).385
Furthermore, much of what is known about ways to minimize distortions in children’s memory (as in that
of adults), and to maximize the quantity and accuracy of information reported, borders on common sense.
Consider, for example, the recommendations of two distinguished scholars on children’s statements and
testimony:

To bolster the reliability of preschoolers’ reports, the following methods are indicated by the available research: (a) Misunderstandings can be
minimized by keeping questions short, grammatical constructions simple, and vocabulary familiar. (b) Accuracy is promoted when questions
concern events that are salient and meaningful to children and when question content is matched closely to children’s knowledge and
experience. (c) Accuracy can be facilitated when hesitant preschoolers are not pressured, coerced, or bullied into answering questions by
authority figures. Inconsistencies can be probed by professing confusion, not by challenging children. (d) Suggestibility may be reduced when
interviewers are neutral or supportive of children’s efforts but do not praise them for providing specific content. (e) Interviewer bias can be
reduced when interviewers take an objective, nonjudgmental stance on both nonverbal and verbal levels (e.g., tone of voice, facial expression,
wording of questions). This does not preclude empathic comments to overcome children’s anxiety. It does imply that an accusatory climate
must be avoided—for example, one in which suspects are labeled as “bad” and assumed to have done “bad things” based on uncorroborated
information provided by someone other than the child.386

Adults who know better still often use difficult vocabulary and complex grammar in questions to
children,387 and indeed linguistic lapses may be the most common inhibitors of effective communication
between interviewers and children. Linguistic complexity lowers the accuracy of statements and testimony by
witnesses of all ages, but it especially does so in communication with children.388 Good practical guides are
available, however, to prompt adults to avoid such miscommunication. A particularly useful brief manual,
including a model voir dire for determination of a child’s competence to testify, has been prepared by Anne
Graffam Walker, a forensic linguist.389
Specific techniques to enhance communication also are becoming available. The most extensively studied
may be the “cognitive interview,” which relies on mnemonic principles to increase the amount of information
provided. A summary of the procedures follows:

First, have the child reconstruct the circumstances of the crime by encouraging her to put herself in the place and time that the abuse
occurred—e.g., “picture it as if you were there right now.” To ensure the child focuses on actual events, do not use the words “imagine,”
“pretend” or “story.” Second, report everything the child says. Ask her to tell you as much information as possible, even seemingly
unimportant details. After the child finishes her narrative description, follow with questions to clarify what was said. Third, go through the

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 incident from beginning to end, then reverse the order and go through it again. Finally, encourage the child to recount events from different
perspectives—e.g., “if you were sitting in the corner of the room, what would you have seen?”390

Designed originally for use in interviews of adult eyewitnesses, the cognitive interview increases elementary-
school-age children’s recall of facts without a decrease in accuracy, especially when the children have an
opportunity to practice the technique.391 Again, however, children’s level of performance depends on adults’
skill in communication. In the above-described study, for instance, problems were observed with interviewers’
(in that instance, sheriff’s deputies’) adherence to the protocol.
Other techniques that have been shown to improve elementary-school-age children’s recall include training
in comprehension monitoring392 and narrative elaboration (i.e., thinking about the elements of a story—the
participants, the setting, the action, and the conversation by and feelings of the participants).393 Encouraging
elementary-school-age children to indicate when they don’t know the answer to an adult’s questions also
increases resistance to leading questions, but sometimes at the cost of overcaution in reporting information
that the children do know.394

(c) Psychometric Instruments

On occasion, specialized instruments for assessment of parental competence, parental attitudes, and family
relations may help suggest dispositional issues in child protection cases. Detailed attention to the merits of
such instruments has been given in reviews by Otto and Edens395 and by Budd and Holdsworth.396 Several
structured instruments are available for assessment of parental competence, parental attitudes, and family
relationships. These instruments may be helpful in clinical evaluation, but the fact that most have not been
validated for use in child protection dispositions should make clinicians cautious in interpreting observations
drawn from them.
There also are several instruments for assessment of an adult’s “abuse potential,” of which the best validated
is the Child Abuse Potential Inventory (CAP).397 As one reviewer put it, “the CAP’s hit rate in identifying
known abusers in highly selected samples is simply uncanny. It is hard to imagine another instrument of similar
age with better established psychometric properties”398 (emphasis added). Nonetheless, we do not recommend
the CAP for clinical use in screening CPS cases; rather, it shows most promise as a research instrument.399 As
the italicized language indicates, the success of the CAP in identifying individuals with past abuse came
largely in validation samples in which half of the participants were known to have physically abused their
children—a base rate that is obviously far higher than in the general population. CAP scores also tend to be
elevated among parents of children with disabilities, especially when other stressors or possible support deficits
(e.g., single parenthood) are present. Therefore, incorrect inferences can be drawn from CAP scores when
parents are in situations in which they have especially difficult problems of child care. Perhaps most seriously,
the false-positive rate rises to unacceptably high levels when the CAP is used predictively.400 Also, we remain
concerned that judges and CPS workers will misinterpret CAP validation data to indicate the odds that a
parent actually abused his or her child.

(d) Anatomically Detailed Dolls

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Undoubtedly the most controversial evaluation technique is the use of anatomically detailed dolls. Much of
the debate rests on the use of doll play as a projective exercise to indicate whether a child has been sexually
abused. There is evidence that such interpretation is common,401 even though it obviously embraces the
ultimate issue and thus is inconsistent with our general view about the proper bounds of expert testimony.
Apart from our general recommendation, professional authorities are united in their view that play with
anatomically detailed dolls cannot be used as a test to determine whether child maltreatment has occurred.402
The question remains whether the dolls are so suggestive that they should not be used even as
demonstration aids to clarify a child’s statements. Wolfner and his colleagues reached a number of factual
conclusions from a careful review of 20 studies on anatomically detailed dolls, including the following:

Anatomically detailed dolls “do not evoke a large base rate of sexualized play among those who have not
been sexually abused.”
There appear to be group differences in the frequency of sexualized doll play when abused and nonabused
children are compared.
At the same time, sample size and nonequivalence of comparison groups on other variables reduce
confidence that the null hypothesis can be validly rejected.
It is unknown whether the use of anatomically detailed dolls increases the validity of either investigation or
clinical assessment when sexual abuse is suspected.403

In similar fashion, a working group on doll use established by the American Psychological Association urged
caution in “interpreting the results of children ages 4 years and under, at least so far as when affirmations to
leading questions about ‘being touched’ are concerned and when repeated misleading questioning has been
used.”404 The working group also noted, however, that “using AD [anatomically detailed] dolls in evaluations
does not inherently distress or overstimulate children,” that “using the dolls can clearly assist in identifying
children’s preferred or idiosyncratic names for body parts,” and that “using AD dolls often results in increased
verbal productions during standardized research interviews.”405

(e) Avoiding Ethical Problems

In his book of maxims for expert witnesses, Brodsky began one chapter with the following assertion: “Of all
mental health legal procedures, termination of parental rights and child custody decisions probably produce
the most heat and greatest hazards for the professionals doing the assessments.”406 Brodsky concluded his
discussion of termination proceedings with the following maxim: “The heated emotionality of termination of
parental rights hearings calls for exceptionally well-prepared and constructive testimony.”407 Because of the
desire to “save” maltreated children and to preserve the family relationships of clients, there may be special
pulls, both psychologically and socially, on mental health professionals to reach beyond their specialized
knowledge in child protection proceedings and to act as advocates rather than neutral experts.
Moreover, the mixed civil–criminal system heightens the possibilities of mental health professionals’
becoming de facto law enforcement agents, sometimes without realizing that they are assuming such a role.
Statements made in a civil child protection proceeding and a corollary treatment program might ultimately be
used in a criminal proceeding or, of course, a civil hearing to infringe parental rights.408

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 Perhaps most acutely, the child protection system as presently structured invites conflicts between “doing
justice” and “doing good.”409 As we discussed in § 15.04(a), mental health professionals are increasingly being
used as investigators charged with gathering evidence about whether maltreatment has occurred. We are
troubled by this development for three reasons. First, it encourages clinicians to reach conclusions outside
their expertise. Second, it promotes confusion about the mental health professional’s purpose in the minds of
both the clinician and the interviewee, and thus raises ethical problems in regard to fidelity to role—a variant
of the “white-coat” phenomenon in forensic mental health [see § 3.02(a)]. Indeed, it is increasingly common
to link treatment services for abused children directly to the prosecutor’s office.410 Third, it may exacerbate
the already pronounced tendency to sacrifice prevention and treatment of child maltreatment in the name of
investigation.
We discussed the first two points at length earlier in this chapter [see §§ 15.04(a), 15.04(c)(4)]. The third
point bears further discussion.411 There is good reason to believe that clinicians’ involvement as investigators
will directly and indirectly impede the provision of treatment. The framing of child protection services as
adjunctive to investigation and prosecution inevitably leads to conflicts between the mental health professions’
emphasis (on behalf of their clients) on confidentiality and the prosecution’s need for inculpatory evidence—
conflicts that may prevent the treatment programs’ further development. Apart from role conflicts, the need
for mental health professionals to deal with legal issues, to prepare reports for attorneys, courts, and probation
officers, and to interrupt clinical practices for court dates may distract clinicians from providing the scarce
treatment services now available and may deter or distract them from serving maltreated children and their
families. Moreover, although there is little direct evidence about public perceptions of mental health
professionals’ involvement in child maltreatment cases, it is possible that increasing involvement in contested
cases (or at least the perception of increasing involvement) will diminish public confidence in the mental
health professions. Certainly high-publicity forensic work has had such an effect before.412 Indeed, the
phenomenon has already occurred in sexual abuse cases as clinicians appear on nationally televised talk shows
to debate false-memory syndrome (an issue discussed below).
Whether or not public perceptions about these issues are accurate, they tend to defeat the most
fundamental purpose of child protection: They deter people from seeking or fully using treatment to prevent
child maltreatment or ameliorate its harm. Note that although more traditional forensic child protection work
(i.e., conducting a postinvestigation assessment as a step toward development of a treatment plan) does not
completely obviate such issues, it presents them much less acutely. In a dispositional assessment (especially
when the court is not necessarily looming in the background), the inquiry is oriented toward development of
help for the child and the family, and the clinician’s mind is in fact likely to be focused on service provision.413

15.07. ADULT CASES RELATED TO ABUSE AND NEGLECT

(a) Elder Mistreatment

The legal architecture for responses to abuse and neglect of elderly and disabled adults is closely analogous to
that for responses to child abuse and neglect, and thus is discussed here. For example, California’s Adult Civil
Protection Act414 provides for mandated reporting of abuse of a dependent adult415 to a social services agency
(Adult Protective Services), law enforcement, or a state agency regulating institutional settings. The definition

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of reportable situations is even broader than the analogous provisions in the child protection context. Elder
abuse must be reported if a professional suspects that a dependent adult has been subjected to “physical abuse,
. . . abandonment, abduction, isolation, financial abuse, or neglect.”416 The breadth appears to reflect concerns
that disabled and elderly adults often have some conflict of interest with their caregivers—a circumstance that
may be less likely in parent–child relations.417
As in other states, and as is the case in child protection matters, California also has a mixed civil–criminal
system to handle adult protection issues. Criminal sanctions may be applied if one willfully causes or permits
an elder or dependent adult to suffer “unjustifiable physical pain or mental suffering” or to be “placed in a
situation such that his or her person or health is endangered.”418
Clinically, there also are striking parallels between child and elder maltreatment. The demographic
(socioeconomic) correlates and perhaps even the prevalence rates of elder abuse and neglect also closely relate
to those in child maltreatment.419 Beyond the epidemiological similarity, the questions and dynamics often
are similar. Victims often have ambivalent responses to state intervention, and many are unwilling to
acknowledge that a loved one could mistreat them.420 Moreover, it often is unclear whether elders are
objectively better off after such investigations. Notably, about one-half of reports result in placement of the
victims in nursing homes or other institutions.421
Perpetrators themselves often are enmeshed in multiple problems that make their blameworthiness unclear,
in part because of the nature of the “victims.” The typical victim of elder abuse is very old (over 75) and frail,
with great needs for personal care to remain clean, oriented, well nourished, and safe.422 In such a situation, it
is easy for care even by a well-meaning family member to lapse, especially when the caregiver is poorly
educated and facing many life challenges (e.g., divorce, unemployment, and substance abuse):

It is common to receive a referral that describes an elder as confused, incontinent, dehydrated, or malnourished, and there may also be
evidence of skin breakdown, fractured bones from falls, and drug toxicity from improper prescriptions. The person reporting elder abuse
must determine abuse or neglect based upon many factors, including the nature and extent of the trauma, the likelihood of abuse or neglect
given the care provider’s resources, and the level of accountability the care provider can be held to. In cases of intentional physical abuse that
results in trauma to the elderly, few professionals would argue against the validity of the label “elder abuse.” However, many responsible
adults are not educated to prevent or detect risk factors for subsequent neglect. When an elderly individual, cared for at home by well-
intentioned family members, presents with symptoms of neglect such as urine burns and decubitus ulcers, the determination of abuse is not
so clear.423

In short, the issues presented in elder abuse and neglect cases are closely related to those in child
maltreatment cases. Evaluators should address many of the same domains in dispositional evaluation, and they
should be alert to many of the same potential ethical problems and role confusion. In that regard, clinicians
need to remain sensitive to the problem of mixed and sometimes conflicting purposes of adult protective
action (e.g., retribution and treatment).
There are two obvious differences in the nature and scope of the evaluation, however. First, clinicians
conducting dispositional evaluations in cases involving elders or other dependent adults need to be aware of
the service alternatives for adults with disabilities, and they need to have a realistic view of the care needs that
a victim presents. In that sense, the scope of an evaluation in an elder maltreatment case may have much in
common with an evaluation for limited guardianship [see § 11.02(b)].
Second, in the adult protection context (unlike child protection), a victim is presumed to be competent

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until there is a legal determination otherwise. About one-fourth of the complainants in adult protection cases
are the victims themselves.424 As in guardianship cases, there may also be questions of financial conflicts of
interest—especially as they may relate to issues about expenditure of assets, in that caregivers are often
financially dependent on the victims.425 Although resolution of possible conflicts of interest is not within the
evaluator’s role, the clinician needs to be sensitive to the ways in which complex relationships may complicate
an elder’s care and to consider alternative sources of care and support for him or her, including autonomous
action by the elder him- or herself (perhaps with facilitation by others).

(b) Adult Survivors of Child Abuse and Neglect

The other set of “adult” issues in abuse and neglect is actually a problem of child maltreatment: legal and
clinical issues that arise when a history of child maltreatment is identified in adulthood. There has been a
pointed and sometimes heated controversy about the recollection of child abuse in adulthood,426 complete
with establishment of a foundation for studying cases of false-memory syndrome.427
Building on the belief that children are sometimes so traumatized and/or dependent that child abuse is not
remembered and disclosed until many years later, many state legislatures have explicitly made the delayed-
discovery rule applicable in such instances.428 “Delayed discovery” is a common-law principle in tort law that
enables a victim of tortious conduct to be compensated past expiration of the statute of limitations (the
maximum time in law between a violation of law and the initiation of legal action) when the victimization was
not promptly discovered. For example, the fact that surgical instruments were left in a patient’s abdomen may
not be discovered until some time later when symptoms appear and are correctly diagnosed, but the patient
should be able to recover for the damages experienced as a result of the surgeon’s negligence even if the statute
of limitations has been exceeded. By establishing a special exception to the statute of limitations for child
abuse cases, legislatures have established an assumption in law that victims of child abuse sometimes are
unable to disclose the abuse before they reach adulthood.
Two studies formed the foci for the debate about the frequency of delayed discovery in sexual abuse cases.
In the first, Briere and Conte reported that about three-fifths of adults “said to have been abused” indicated
that they had experienced periods in which they could not remember the abuse.429 Amnesia was particularly
likely to be reported when the abuse was violent (i.e., it involved physical force, multiple perpetrators, or fears
of death) or occurred over a long period of time, or when current mental health symptoms were relatively
severe.
In the second study, Williams interviewed women who, as girls, had been seen in an urban emergency
room 15–18 years earlier as victims of sexual offenses.430 In three-hour interviews that included a broad
assessment of psychosocial functioning and history (including sexual history), more than one-third did not
report the incidents that had brought them to the emergency room or any other abuse by the perpetrators
identified at that time, although two-thirds of these individuals did report other incidents involving other
perpetrators. Whether the index events were recalled was unrelated to whether the individuals reported other
embarrassing or traumatic events. Even among those women who were age seven or older at the time of the
incident, 28% did not recall it.
As in Briere and Conte’s research, the women in Williams’s study who were least likely to recall their

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childhood victimization were those whom clinical theory would suggest were most traumatized and those who
were most likely to have been pressured into silence:

For example, the records from 1973 show that Maria was abused by her father at least six times. The last time was when she was 12. She
now reports no memory of it. June was abused by three of her cousins over a two-year period. She was 7 years old at the time of the last abuse
and now reports no memory of it. Contrary to skepticism about how someone could forget such abuse, there is reason to believe that the
dynamics of incestuous abuse—which may include grooming the child to accept the advances of the perpetrator, the use of adult authority,
and a progression (confusing to the child) from acts of affection to physically invasive sexual penetration and rape—may be associated with
memory problems. . . . [W]omen in my sample were more likely to forget abuse by someone to whom they were close.431

Skeptics about the validity of repression or other forgetting among a high proportion of victims of child
sexual abuse have made three primary counterarguments. First, they have argued that the purported frequency
is an artifact of study designs. For example, Loftus criticized Briere and Conte’s question asking those who
reported sexual abuse about any “time when you could not remember the forced sexual experience,” because it
could be interpreted to be referring to whether one chose not to think about, rather than repressed, the
terrible memory.432 Second, critics have pointed to experiments and anecdotes about circumstances in which
demonstrably false memories for childhood traumatic events have been induced.433 Third, they have argued
that adult reports of child sexual abuse are often the products (at least in part) of therapists’ suggestive
interviewing.434
Some evidence that at least the most severe allegations by adults are often partially the products of
suggestion (whether by peers, the mass media, or therapists) arose in a large-scale survey of therapists by
Bottoms and her colleagues about ritualistic and religion-related abuse.435 A very small proportion (2%) of the
therapists surveyed accounted for most of the reports of ritualistic abuse,436 and the majority of those who
reported any such cases had been to workshops on the subject.437 Allegations of ritualistic abuse, when made
by adults about childhood experiences, were almost always initially disclosed in treatment,438 and therapists
almost always believed the stories, even when no corroboration was present.439 The evidence for the ritualistic
cases was much sketchier than in “religion-related” cases (e.g., cases of medical neglect or physical abuse based
on religious beliefs or delusions with religious content, such as a belief that a child had been possessed by the
devil).440 Furthermore, the most bizarre accounts of ritualistic abuse typically were alleged by or about adult
survivors, not by children.441
Echoing law enforcement specialists who have been unable to find evidence supportive of vast satanic
conspiracies,442 Bottoms et al. reviewed the weak evidence for adults’ (as opposed to children’s) graphic
allegations that they had been subjected to ritualistic abuse in childhood:

Believers in ritual abuse assert that it has been occurring in the same fashion for generations. If the intergenerational view is valid, current
reports by child and adult survivors should be quite similar because they are simply two views of the same phenomenon. Our data challenge
that premise. Child ritual cases shared some features with adult cases, but they also differed in important ways. In general, child ritual cases
were not as extreme as adult ritual cases. There was more social service and legal investigation of child cases and more corroborative evidence
of abuse. . . . Children were less likely than adults to have disclosed their alleged abuse in the context of psychotherapy.443

Such evidence does not negate the possibility—indeed, probability—that studies such as those by Briere
and Conte and by Williams and related clinical observations reflect instances in which valid memories of child
abuse are first revealed in adulthood because of the combination of repression or other forgetting and of real
or perceived pressure not to tell. To a large extent, the academic debate about repressed memory for sexual

664
abuse is about its frequency and mechanism, not its reality.
Indeed, given the vociferousness of the debate, the level of agreement between the skeptical memory
researchers and the not-so-skeptical clinical psychologists in the American Psychological Association
Working Group on Investigation of Memories of Childhood Abuse was remarkable.444 The Working Group
itself noted five “key points” of consensus:

1. Controversies regarding adult recollections should not be allowed to obscure the fact that child sexual
abuse is a complex and pervasive problem in America that has historically gone unacknowledged.
2. Most people who were sexually abused as children remember all or part of what happened to them.
3. It is possible for memories of abuse that have been forgotten for a long time to be remembered.
4. It is also possible to construct convincing pseudomemories for events that never occurred.
5. There are gaps in our knowledge about the processes that lead to accurate and inaccurate recollections of
childhood abuse.445

Several other critical points of agreement can be found in the text of the Working Group’s report:

Many possible errors in working with adult survivors or with clients who present as recovering memories of childhood abuse could be
avoided if the therapist were well grounded in developmental psychology . . . , cognitive psychology . . . , and research on trauma. . . .446
Clients who seek hypnosis as a means of retrieving or confirming their recollections should be advised that it is not an appropriate
procedure for this goal because of the serious risk that pseudomemories may be created in trance states and of the related risk due to
increased confidence in those memories. . . .447
[D]enials by alleged perpetrators also should not be taken as evidence that the client is experiencing other than an accurate recollection. . .
.448
[A]lthough there are no statistics available on its prevalence, it is known that, on occasion, adults who report recovering memories will lie,
particularly when the constellation of motives (e.g., fear, embarrassment, desire to protect loved ones, desire for revenge) outweighs the
incentives to tell the truth.449
Therapists need to eschew the roles of advocate, detective, or ultimate arbiter of reality. . . . Forensic psychologists . . . should avoid
attempting to speak to the ultimate issue (i.e., guilt or innocence) in a case, because they are not usually in a position to know the truth.450
[W]henever possible, therapists should avoid serving as expert forensic witnesses in the cases involving clients whom they are treating.451

In any event, the repressed-memory debate need not be resolved in a book on forensic assessment, because
the assessment of truthfulness and validity of memory is not a matter for clinical opinion in the courtroom.
Regardless of whether one accepts Loftus’s assertions that many adult memories of child abuse may be
distorted, it is difficult to argue with her conclusions about the stance that mental health professionals should
take:

What should therapists do . . . ? As a first step, it is worth recognizing that we do not yet have the tools for reliably distinguishing the signal
of true repressed memories from the noise of false ones. . . . Zealous conviction is a dangerous substitute for an open mind. Psychotherapists,
counselors, social service agencies, and law enforcement personnel would be wise to be careful how they probe for horrors on the other side of
some presumed amnesic barrier. They need to be circumspect regarding uncorroborated repressed memories that return. Techniques that are
less potentially dangerous would involve clarification, compassion, and gentle confrontation along with a demonstration of empathy for the
painful struggles these patients must endure as they come to terms with their personal truths.452

It is further noteworthy that even this advice really is aimed at therapists, not at forensic evaluators. In that
regard, in adult as well as child cases, mental health professionals should resist attempts to induce them to
assume the role of human lie detectors. Nothing in the professional preparation of clinicians uniquely qualifies

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them to discern the validity of memories and the truthfulness of allegations that result.

BIBLIOGRAPHY453

THE APSAC HANDBOOK ON CHILD MALTREATMENT (J. Bart Klika & Jon R. Conte eds., 4th ed. 2017).
C. HENRY KEMPE: A 50-YEAR LEGACY TO THE FIELD OF CHILD ABUSE AND NEGLECT (Richard D. Krugman & Jill E. Korbin eds., 2013).
HANDBOOK OF CHILD MALTREATMENT (Jill E. Korbin & Richard D. Krugman eds., 2014).
CLARE HUNTINGTON, FAILURE TO FLOURISH: HOW LAW UNDERMINES FAMILY RELATIONSHIPS (2014).
INSTITUTE OF MEDICINE & NATIONAL RESEARCH COUNCIL, CONFRONTING COMMERCIAL SEXUAL EXPLOITATION AND SEX TRAFFICKING
OF MINORS (Ellen Wright Clayton et al., 2013).
INSTITUTE OF MEDICINE & NATIONAL RESEARCH COUNCIL, NEW DIRECTIONS IN CHILD ABUSE AND NEGLECT RESEARCH (Anne C.
Petersen et al. eds., 2014).
ANNIE KEMPE, A GOOD KNIGHT FOR CHILDREN: C. HENRY KEMPE’S QUEST TO PROTECT THE ABUSED CHILD (2007).
ROGER J.R. LEVESQUE, CHILD MALTREATMENT AND THE LAW: RETURNING TO FIRST PRINCIPLES (2010).
Gary B. Melton & Susan P. Limber, Psychologists’ Involvement in Cases of Child Maltreatment: Limits of Role and Expertise, 44 AMERICAN
PSYCHOLOGIST 1225 (1989).
NIGEL PARTON, THE POLITICS OF CHILD PROTECTION: CONTEMPORARY DEVELOPMENTS AND FUTURE DIRECTIONS (2014).
PROTECTING CHILDREN FROM ABUSE AND NEGLECT: FOUNDATIONS FOR A NEW NATIONAL STRATEGY (Gary B. Melton & Frank D. Barry
eds., 1994).
Special Issue, Communities’ Influence on Children’s Safety, 41 CHILD ABUSE & NEGLECT 1 (Jill D. McLeigh & Gary B. Melton eds., 2015).
TOWARD A CHILD-CENTERED, NEIGHBORHOOD-BASED CHILD PROTECTION SYSTEM (Gary B. Melton et al. eds., 2002).
ROSS A. THOMPSON, PREVENTING CHILD MALTREATMENT THROUGH SOCIAL SUPPORT (1995).

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CHAPTER 16

Child Custody in Divorce

16.01. THE SCOPE OF CLINICIANS’ INVOLVEMENT IN CUSTODY DISPUTES

(a) The Changing Landscape

The nature of custody disputes has changed dramatically over the last several decades, in at least three ways.
One difference is the type of people involved. Yesterday’s custody evaluation was likely to focus on the
children of two married heterosexual parents in their late 20s or 30s. Today’s custody evaluation is just as
likely to involve the children of two formerly cohabiting but unmarried individuals in their 40s, or blended
sibling groups of one spouse who has been married twice previously and another who was married once
before, or the children of same-sex parents, or a divorcing multinational couple. Since the 1950s, age at first
marriage has increased from 23 to 28 years for men, and from 20 to 26 years for women.1 Marital longevity is
falling, with 10% fewer men remaining married for more than 20 years now than in the early 1980s.2
Although the divorce rate has leveled off at about 50%, marriage is less likely, and multiple marriages and
cohabitation are more likely.3 In the past few decades, diversity within families, whether measured in terms of
race, ethnicity, or sexual orientation, has also increased significantly.4 The changing nature of families and the
new variations on the traditional family structure inevitably affect the terrain of child custody evaluations.
Another trend influencing custody evaluations is legal rather than cultural. Traditionally a custody
evaluation was conducted in the shadow of a court proceeding; today it is just as likely to take place as part of
an alternative dispute resolution process. For some time, a number of states have required traditional
mediation as a predicate to litigation.5 At this writing, almost half the states have also enacted “collaborative
practice” legislation that encourages settlements out of court through full disclosure requirements, a demand
that the parties work together in the best interests of the family, the involvement of therapists and others to
help make decisions, and an agreement by the attorneys that they will not represent the parties if settlement
fails.6
A third change has been the influence of the mental health profession in custody cases. Thirty years ago,
many (perhaps most) custody issues were resolved without the participation of mental health professionals,
even when these issues were contested.7 Today, in contrast, the involvement of clinicians is a common feature
of custody cases.8 Clinicians may be involved even when the parties agree on the custody arrangement; indeed,
the current trend is in the direction of assuming that parents cannot be trusted to make the “right” decision
and require intervention from professionals.9
We view this last development with some concern. While clinicians certainly can be helpful on custody
matters, their participation in such cases should be cautious, for two reasons. First, some of the considerations
most relevant to a determination of a child’s best interests in law (e.g., parental “responsibility” and moral

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guidance) are ones that are arguably well within the province of the factfinder and about which clinicians have
no special expertise.10 Second, there is limited scientific basis for opinions about the kinds of questions that
the courts must decide in divorce cases when children are involved. Although much is known about the effects
of divorce on children [see § 16.03(a)], and studies about the effects of various custody arrangements on
children and families of different characteristics are burgeoning [see §§ 16.03(b)–(e)], generating data at a
level that would be helpful in determining best interests in individual cases is difficult [see § 16.02(g)].11
There is no doubt that existing psychological research can highlight ways in which parental factors such as
parenting skills and parental mental health, family process factors such as parental conflict, and individual
factors such as a child’s age, gender, and developmental stage might contribute to positive or negative
outcomes. But these indicators are often overinterpreted or given far too much significance.12 In short, the
state of the literature does not promote confidence about the validity of ultimate opinions concerning
dispositions judges might consider in custody cases.13
Several American Psychological Association committees—concerned that clinicians who testify in custody
disputes often reach beyond their expertise, evaluate only one party but render opinions about both parties, or
use irrelevant measures or data—have joined together to develop the Guidelines for Child Custody
Evaluations in Family Law Proceedings.14 As these Guidelines suggest, the most basic ethical issues for
clinicians involved in custody disputes revolve around monitoring the limits of competence and avoiding
trespass across these limits. Although this concern is not unique to custody evaluations, it is rendered
especially acute in this context because of the complex interests and relationships typically involved in custody
disputes. The superficial relevance of everyday clinical assessment practice to custody disputes, the shifting
boundaries and allegiances within families (and the resulting pulls on clinicians), and even the related gender
politics [see § 16.05] may sometimes seduce mental health professionals into reaching unwarranted
opinions.15
Consistent with these observations, legal practitioners generally are skeptical about the usefulness of mental
health involvement in child custody cases, even when those cases involve domains thought to be familiar to
mental health professionals. Almost half the judges in a 1985 national study reported that clinicians’ opinions
in custody disputes were useful no more than occasionally—substantially less frequently than for other forensic
issues.16 Only 2% of the judges in a 1987 study of Northeastern judges ranked mental health professionals’
opinions among the top five factors in their custody decisions,17 and 86% cited no social science readings or
workshops as influential in their thinking about child custody.18 These types of reactions are still common
among members of the bar. Well into the 21st century, legal commentators continue to bemoan the quality of
clinical testimony in custody cases, with some declaring that it often fails to meet Daubert’s requirements [see
§ 1.04(c)].19

(b) Some Possible Roles

(1) Evaluator and Investigator

We do not wish to imply that clinicians have no proper role at all in custody matters. There are times when
conventional clinical descriptions of family dynamics will provide judges with some assistance in making
decisions about child custody. Clinical impressions about alliances and conflicts within a family and their basis

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might present judges with a useful framework for consideration of which child goes where and for what
reasons. Clinicians (at least those specialized in child or family practice) are trained in, and used to, talking
with children and families under stress and gathering information from diverse sources about the life of the
family. Therefore, child and family clinicians are likely to be efficient and effective gatherers of facts for the
court, even when they are not able to develop strong opinions based on specialized knowledge about the
implications of those facts. Similarly, opinions about present and past intensity of marital conflict and its
sources may provide the factfinder with some basis for prediction of the probable success of various conditions
of custody and visitation.
Unfortunately, given present practice parameters, the courts often do not seek the significant amount of
relevant information clinicians can provide. Although, as we shall see, the legal standards in most jurisdictions
would seem to demand such extensive evidence, current procedures inhibit it. Because only the parents have
standing,20 evidence about the child’s best interests may not be presented unless it is clearly helpful to the case
of one of the divorcing spouses. Even appointment of a guardian ad litem to represent the child’s interests may
not ensure development of this type of evidence, in part because of the ambiguities of the role.21 In some
jurisdictions, inadequate funding limits practice. In § 16.04(a), we suggest ways of overcoming these obstacles
to the mental health professional’s fulfilling an investigative role.
Mental health professionals (and other behavioral scientists) may also assist the court by pointing out what
is not known about the psychological effects of various custody arrangements. This honesty about the limits of
knowledge serves dual purposes: It assists the factfinder in determining the degree of confidence to attach to
any speculations about the import of psychological factors, and it deters the court from relying on such
opinions in obscuring, intentionally or unconsciously, value preferences in the law. A good example of the
potential for such a role came in the United States Supreme Court’s consideration of Palmore v. Sidoti.22 The
trial court, affirmed by the state appellate court, had transferred custody of a European American child from
her mother to her father after her mother had married an African American man. The lower court relied on
psychological assumptions (i.e., the “inevitable” vulnerability to “peer pressures” and “social stigmatization”) to
justify its decision.23 Although the Supreme Court ultimately rejected this argument unanimously,24 evidence
as to the lack of psychological authority for the Florida courts’ assumptions might have served to focus
attention from the start on the constitutional values at stake.

(2) Mediator and Intervenor

Mental health professionals often may be useful as adjuncts to the negotiation process in clarifying points of
agreement and disagreement. In performing custody evaluations, we have been struck by the number of times
the spouses’ disagreements—on which they are expending substantial energy and money—are objectively
rather insignificant (e.g., a difference of one or two hours a week in how much time each parent has the
children; withholding visitation because of sleeping arrangements; choosing which parent has to pick up and
drop off the children). In an emotionally charged atmosphere, the availability of a third party to mediate the
dispute might facilitate settlement.25 Divorce lawyers often perceive their role to be one of moderating their
clients’ wishes;26 thus referrals for “evaluation” may actually be thinly disguised requests for information that
might illuminate the foundation for a settlement or even for mediation, involving direct assistance by the

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clinician in bringing the parties to agreement. A variation on the mediator role, usually dubbed “parent
coordinator” or “special master,” may also involve clinicians. Appointed by the court, parent coordinators are
quasi-judicial officials whose primary responsibilities are to facilitate development of appropriate parenting
plans, develop functional coparenting relationships, and resolve ongoing disputes between the parents.
Three important caveats about mediation should be remembered. First, while the courts may turn to
mental health professionals in the initial phase of mediation for information gathering and assessment data,
and in the postmediation phase for clinical support of coparenting plans, the official mediation role in states
that mandate it remains a role undertaken by mediation lawyers who have special expertise in reaching
equitable solutions.27 Mediation and associated intervention activities go well beyond the bounds of forensic
assessment and thus are not discussed more fully here.28
A second, closely related caveat is that when a clinician is employed as an evaluator, he or she should be
careful not to slip into the role of intervenor unless, as indicated above, the parties or the court so requests and
there are no dual-role ethical conflicts. Although the report might help clarify topics for potential negotiation
(and, indeed, as already noted, one or both attorneys might request a report for just such a purpose), it is up to
the attorneys to negotiate a settlement. There are also potential ethical pitfalls associated with professional
competence issues when clinicians begin skirting—or crossing—the bounds of legal practice. Although mental
health professionals may be sensitive to the emotional fallout of separation and divorce, they are more often
than not ignorant of property issues and related matters. Analogous concerns are obviously present when
attorneys begin acting like therapists or intrafamilial violence risk experts. Even for those mental health
professionals who are also trained as lawyers, there are serious problems of dual practice and dual
representation.29
Third, even when the role conflicts can be resolved, mediation (especially when compulsory30) is not
necessarily beneficial and may in fact be contraindicated in some cases.31 It has been asserted that, relative to
litigation, mediation is likely to reduce competition between parents, improve children’s adjustment, reduce
relitigation, and increase satisfaction and compliance with agreements.32 But even some proponents of
mediation, noting the diversity in auspices, length, voluntariness, and scope of mediation programs, have
indicated a lack of surprise at research showing that mediation does not consistently produce results superior
to litigation.33 Although the majority of studies on particular hypothesized benefits of mediation have
confirmed the hypotheses, research to the contrary is also available on virtually every point.34 Few studies have
shown mediation, relative to litigation, to have the hypothesized ultimate benefit: better postdivorce
adjustment by children.35 Indeed, mediation—especially when conducted in a high-conflict divorce—may
actually increase the strength of association between parental and child problems,36 although some of the
effect size is accounted for by the predivorce negative effects of troubled marriages on children.37
These caveats notwithstanding, the movement toward compulsory mediation of custody disputes is likely
to continue, because it undeniably reduces courts’ workloads.38 Moreover, even without compulsory
mediation, changes in the justice system are rapidly fostering a two-tiered, extrajudicial system.39 Looking for
a prompt resolution of their family disputes, affluent clients are engaging private mediators. And many states
have established public mediation services, which permit poorer couples to avoid the court system and perhaps
even obtain resolutions to their disputes without benefit of counsel.40 Consequently, whether the service is
framed as intervention (e.g., mediation) or as evaluation, clinicians working in the public system and dealing

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with the vast number of divorces involving children will find themselves increasingly in a position in which
they must educate parents about what is to come not only in their family life per se, but also in the pending
dispute resolution proceeding. The problems presented often are thorny ones that are both clinically and
ethically challenging.41

(c) Guidelines for Custody Evaluation Practice

These challenges are sufficiently great that the American Psychological Association has taken the step of
promulgating the previously mentioned Guidelines for Child Custody Evaluations in Family Law
Proceedings,42 many of which endorse the principles we have already stated. The Guidelines (joining the
American Law Institute in this regard) state a preference for terms such as “parenting plan,” “parenting time,”
or “parental rights and responsibilities” over the term “custody,” but they continue to use the latter word
because of its ubiquity in legal documents. Starting from the premise that the child’s needs must be
paramount,43 the Guidelines advise clinicians (as do we) to undertake a functional assessment of the skills and
values of the parents and their match to the child’s needs; although a diagnosis or description of any parental
psychopathology may be relevant if it negatively affects the child, it generally is not the “primary focus.”44
This functional inquiry, the Guidelines state, typically requires a wide-ranging assessment using multiple
sources of information and methods of data gathering (i.e., the investigator role we advocate).45 Recognizing
that the multiple lenses through which family members embroiled in a high-conflict divorce view the situation
are apt to be clouded by emotion, and that the scientific foundation for prediction of postdivorce behavior is
thin, the Guidelines also advise evaluators to interpret clinical information “only after they have conducted an
examination of the individual adequate to support their statements and conclusions” and “consistent with
established professional and scientific standards.”46
The Guidelines recognize that child custody evaluators are often pulled in conflicting directions by their
concern for the various individuals involved. They note that a psychologist’s role is that of a professional
expert who strives to maintain an objective, impartial stance,47 regardless of whether he or she is retained by
the court or by a party to the proceedings. If either the psychologist or the client cannot accept this neutral
role, they advise the psychologist to decline the evaluation referral; if he or she is not permitted to decline, the
psychologist should acknowledge past roles and other factors that could affect impartiality.48 To further
maintain objectivity and avoid role conflicts, the Guidelines advise the mental health professional to refrain
from testimony (other than as a fact witness) in any case in which the clinician has been a therapist for one of
the family members (a topic to which we return).49 For the same reason, the Guidelines state that it is
important to obtain a portrayal of the family from all perspectives. Therefore, barring exceptional
circumstances, it is advisable to interview all parents or guardians and children alone and together, and not to
give an opinion about any individual whom the clinician has not directly evaluated.50 This too we endorse,
although our approach is even more “ecological” [see § 16.04].
The Association of Family and Conciliation Courts (AFCC) has also developed guidelines for custody
evaluation practice51 and a secondary set of guidelines addressing brief evaluations.52 Like the American
Psychological Association Guidelines, the AFCC guidelines encourage evaluators to use multiple data-
gathering methods in order to increase accuracy and objectivity. The AFCC guidelines also recognize that

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brief focused assessments may suffice in instances in which a clear and circumscribed referral question is
received, when description is needed more than analysis, or when the focus is on the short-term needs of the
family.

16.02. STANDARDS FOR RESOLUTION OF CUSTODY DISPUTES

As in all forensic areas, mental health professionals conducting custody evaluations need to be knowledgeable
about the standards for determining custody. The prevailing standard should define the scope of the
evaluation. However, as we shall see, the most common standard gives clinicians—and, ultimately, the courts
—limited and sometimes conflicting guidance.

(a) Historic Preferences

Until relatively recently, there was rarely any real contest for custody of children following divorce. Until well
into the 19th century, custody was routinely perceived as a concomitant of paternal power; children, like
wives, were in effect their fathers’ chattels.53 However, late in the 19th century, the predominant view shifted
to the child’s own best interests as the determining factor in child custody litigation.54 With that change in
perspective also came a presumption that children of “tender years” are best served by remaining with their
mothers.55 Thus, although the best-interests standard is theoretically indeterminate,56 in fact the question of
custody was usually settled a priori by award of custody to the mother, unless the tender-years presumption
could be rebutted by a showing of unfitness. When that event occurred, it was often de facto punishment for
the mother’s fault in the divorce (e.g., adultery) rather than a real concern with the mother–child
relationship.57
Ironically, the women’s movement has resulted in a weakening of the maternal preference. With new social
and legal concern for gender equality, judges have applied equal-protection-based analysis58 and legislatures
have adopted clear statutory directives59 to end legal preferences for maternal custody. Although it is
important to recognize that maternal custody remains the norm and that the tender-years presumption is still
given great weight in some jurisdictions,60 in general the trend is toward determining the best interests of the
child by examining the relationship with both parents61 (so much so that in the 1990s, some feminist groups
called for a revival of the maternal preference as a way of protecting “the greater emotional commitments of
women to children”62 and recognizing that women bear the overwhelming responsibility for childrearing
despite typically bleaker postdivorce financial prospects63). Because of this growing recognition of father–child
attachment, postdivorce gender inequities, and emphasis on the importance of both parents in the lives of
children, the demand for clinical input has increased substantially in recent years.

(b) The Best-Interests Standard

Most jurisdictions now determine custody on the basis of the best interests of the child.64 The court usually is
given some guidance as to the factors to be included in determining best interests, but the weight to be
accorded them is left to judicial discretion. Thus custody determinations will usually be reversed only if the

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judge refuses to consider a factor that the appellate court believes is, as a matter of law, a part of “best
interests.” The calculus is necessarily idiosyncratic.65 Moreover, except for certain suspect classifications that
are constitutionally or statutorily impermissible as bases for custody,66 courts are free to weigh any factors that
they believe are important in any particular case.67
This indeterminate approach is illustrated by the model standard incorporated in the Uniform Marriage
and Divorce Act, which has been adopted in many states:68

The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child’s parent or parents as to his custody;

(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly
affect the child’s best interest;
(4) the child’s adjustment to his home, school, and community; and
(5) the mental and physical health of all individuals involved.

The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.69

This list does not exhaust the types of factors that could influence judicial determinations. For instance,
common factors that come under consideration include the education levels of the parents, their childrearing
skills, home environment, special needs of the child, parental illness(es), parental employment and financial
status, and parental motives for seeking custody.70
Just as the implicit elements of the best-interests test are almost infinite (i.e., “all relevant factors”), the
desired outcome against which the factors must be weighed is also indeterminate. There is usually no clear
guideline, for example, as to whether the best-interests standard is present- or future-oriented—or, indeed,
how much weight prior parental infractions should be given. Should the court be concerned with the child’s
past welfare, the child’s immediate welfare, or the child’s well-being 10 or 20 years from now?71
More broadly, the best-interests test seems to demand no less than a judicial determination of a citizen’s
desirable traits—traits that vary with changes in culture. This phenomenon is graphically illustrated by the
often-cited opinion of the Iowa Supreme Court in Painter v. Bannister.72 Custody of seven-year-old Mark
Bannister was awarded to Mark’s grandparents (the parents of his deceased mother) instead of his father, who
was described as an agnostic and a “political liberal” living in an unpainted house in northern California.73
The court concluded that Mr. Bannister would provide Mark with an “unstable, unconventional, arty,
Bohemian, and probably intellectually stimulating” home.74 In contrast, the grandparents were said to be
churchgoing, “highly respected members of the community” who offered a “stable, dependable, conventional,
middle-class mid-west background.”75 The court “unhesitatingly” believed the Painters’ home to be more
suitable for a child: “We believe security and stability in the home are more important than intellectual
development in the proper development of a child.”76
Cases rarely offer such dramatically different potential households, and courts rarely are as forthcoming
about the values on which they base their decisions. Nonetheless, most other cases are different only in degree
not in kind. Contested custody determinations are easy only in those rare cases in which one and only one
parent is obviously unfit, or one and only one parent is attached to the child.77 More commonly, courts are
faced with competing homes that, whether because of divergent personalities, educations, or social and

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financial resources, are likely to nurture somewhat different traits in the child but are unlikely to result in
substantial differences in the child’s ultimate well-being. The case is likely to turn, then, on the judge’s own
view of the most desirable traits and prediction as to the parent more likely to socialize them. Although the
judge may be guided by a sense of the values of the community, thus reducing arbitrariness, there is clearly an
indeterminacy in the nature of “best interests” themselves.
For the same reason, clinicians have little objective basis for determining what to examine in a best-
interests custody evaluation; the lack of statutory guidance may make subjective influences about the “best”
outcome inevitable. Accordingly, clinicians should report their assumptions about the factors and outcomes to
be considered (as they shape the scope of the evaluation and the opinion resulting from it), as well as the
uncertainties of their opinion. Furthermore, given the fact that the ultimate conclusion about best interests is
at least as value-laden and unscientific as other legal determinations, it should clearly be preserved for the
factfinder. A clinician should never reach a conclusion as to the parent who would better meet a child’s
interests. In those rare instances when a judge solicits or even orders an opinion, we recommend that the
clinician respectfully demur, offer as an alternative a detailed explanation of any psychological factors that
might be germane to an opinion, and note that there may be nonpsychological factors that are relevant to the
conclusion (thus falling outside the expertise of a mental health professional).

(c) The Least Detrimental Alternative

Another rule, suggested by three leading psychoanalysts (Joseph Goldstein, Anna Freud, and Albert Solnit),78
has not been adopted in state statutes, but nonetheless has been somewhat influential in the thinking of many
judges, lawyers, and mental health professionals.79 Although the scientific foundation for their argument was
dubious,80 Goldstein and colleagues believed that a child’s primary need is for a seemingly omnipotent,
omnipresent attachment figure.81 Therefore, they advocated vesting total legal authority for a child in the
“psychological parent.”82 The psychological parent would not only have physical custody and authority for
medical and educational decisionmaking on behalf of the child, but also would be able to regulate how much
involvement, including visitation, the noncustodial parent would have in the life of the child.83 When both
parents are equal psychological parents84—a situation that is probably not unusual in divorce—the couple
would draw straws for custody.85
Under the theory that the state is ill equipped to regulate the lives of children, and that any determination
of custody is likely to have an untoward effect on the child,86 Goldstein and colleagues called their proposed
standard the “least detrimental alternative.” However, the standard would be likely to have substantial
undesirable effects. For example, the all-or-nothing custody decision would probably result in more custody
fights by parents who wish to avoid the possible loss even of visitation.87 It might also increase the possibility
of the custodial parent’s using the child as a marble in “visitation roulette” to punish or manipulate the
noncustodial parent.88 Because the standard includes a presumption that the parent who has custody is the
psychological parent,89 it could even increase the incidence of parental kidnapping.90 The law is clearly
moving from the “rule of one” to “collaborative parenting” and joint custody of some sort.91
Nonetheless, Goldstein and colleagues’ now quite dated emphasis on choosing a single parent represents
important authority for foes of joint custody. Their work also provides guideposts for judges in best-interests

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jurisdictions, who, in the absence of definitive standards, may seek to determine who the “psychological
parent” is (although two or perhaps even multiple psychological parents may be the norm92). The next section
describes a variant of that approach.

(d) The Primary-Caregiver and Approximation Standards

A seemingly more objective alternative to the quest for a psychological parent is the “primary-caregiver” rule.
This rule received its greatest development in West Virginia, where it was championed by Justice Neely,93 but
it has also been applied in some other jurisdictions.94 Ostensibly gender-neutral,95 the primary-caregiver (or,
as it is more commonly known, the “primary-caretaker”) rule has a premise similar to the tender-years
presumption: that young children generally are better off when their established attachments are preserved.96
Consequently, custody is awarded to the parent who “until the initiation of divorce proceedings, has been
primarily responsible for the caring and nurturing of the child.”97
From courts’ perspective, the major advantage of the primary-caregiver standard is that it is more easily
susceptible to proof than is psychological parenthood. As defined by the West Virginia Supreme Court, the
primary caregiver is established by determining who has been principally responsible for

(1) preparing and planning of meals; (2) bathing, grooming and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care,
including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e., transporting to friends’ houses or,
for example, to girl or boy scout meetings; (6) arranging alternative care, i.e., babysitting, daycare, etc.; (7) putting child to bed at night,
attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e., teaching general manners and toilet training;
(9) educating, i.e., religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.98

Although more palatable as a practical matter than either the best-interests or psychological-parent
standards, the primary-caregiver approach can be challenged on normative grounds. Its purely quantitative
inquiry may offer little insight into the nature of the child care arrangements that would “naturally” develop
under various scenarios after a divorce (or if the parents remained married), or how changing developmental
factors might call for different arrangements over time. Although meal preparation may be correlated with the
intensity of a child’s relationship, it seems unlikely that cooking a child’s food causes the development of such
a relationship. The same argument can be made, for example, about washing a child’s laundry. Nonetheless,
the results under a primary-caregiver rule (as operationalized by the West Virginia judiciary) may appear fair
from adults’—especially adult women’s99—perspective. Custody is awarded to the parent who has invested the
most time and energy in household management, including (but not limited to) direct care of the child.
West Virginia has since adopted a variation on the primary-caregiver concept, known as the
“approximation standard.”100 The West Virginia statute provides that “unless otherwise resolved by agreement
of the parents . . . or unless manifestly harmful to the child, the court shall allocate custodial responsibility so
that the proportion of custodial time the child spends with each parent approximates the proportion of time
each parent spent performing caretaking functions for the child prior to the parents’ separation, or if the
parents never lived together, before the filing of the action . . . ”101 Other states have adopted similar rules.102
The standard has also been endorsed by the American Law Institute in its Principles of the Law of Family
Dissolution, published in 2002.103 As described by Elizabeth Scott, who first proposed it, the approximation
test requires that childrearing responsibilities mirror, as closely as possible, the division of responsibility before

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the parental separation.104 Although the results under this standard may often be similar to those that would
occur under either a best-interests or primary-caregiver standard, it probably tends to push more in the
direction of joint custody than the other two (see below). Critics argue that the approximation rule is unlikely
to reduce either the level of conflict between parents or their children’s harmful exposure to it; mistakenly
confuses the amount of parent–child time with parental commitment; and ignores the difficulties inherent in
measuring parental time investment, involvement, devotion, and importance.105
Neither the primary-caregiver nor the approximation standard calls for psychological opinions. Instead,
both invite evidence on who did what, and they start from a presumption that more caregiving activity is
better. In such a framework, mental health professionals are apt to be used most extensively as interviewers to
gather and corroborate evidence, not as experts to offer opinions. In short, the primary-caregiver and
approximation rules implicitly limit mental health testimony in a manner that is consistent with our own
preference [see § 16.01(b)(1)].

(e) Joint Custody

At the foundation of joint legal and physical custody is the presumption that both parents have the ability to
act in the best interests of the child. As with the primary-caregiver rule, joint-custody rules resulted in part
from the difficulty in choosing between two fit parents.106 In contrast to the former rule, however, joint
custody has achieved widespread adoption. In 1975, only one state, North Carolina, had a joint-custody law.
Spurred by California’s enactment of a preference in favor of joint custody in 1979,107 about 30 states enacted
joint-custody statutes within the next five years.108 These statutes tend to have stronger presumptions in favor
of joint custody, but recent versions of those statutes also allow easy rebuttal of the presumption in certain
situations, such as when parents do not agree to it at the outset.109
Technically, “joint custody” refers to shared parental authority to make decisions on behalf of children. It
does not necessarily include joint physical custody; indeed, such an arrangement is far less common than joint
legal custody.110 Nor does it necessarily equate with equal parenting time. However, it is clear that the initial
proponents of joint custody expected both shared legal authority and shared physical custody.111 Joint-custody
agreements typically specify each parent’s powers, rights, and responsibilities for the care of the child and for
major decisions such as education, health care, and religious training.112
In some “strong-presumption” states,113 joint custody must be ordered unless the court finds that such an
arrangement would be harmful to the child, presumably even if both parents object.114 Even among states
with weaker presumptions, the preference for parental cooperation is often expressed in a “friendly-parent”
rule, which provides that if joint custody is not awarded, sole custody should be granted to the parent more
likely to facilitate the noncustodial parent’s involvement with the child.115 As Scott and Derdeyn have pointed
out, this rule may diminish the presentation of evidence suggesting that joint custody will be detrimental.116 A
parent may be reluctant to describe continuing conflict or question the fitness of the other parent, lest the
questioner be viewed as “unfriendly.”117
There is growing recognition that joint-custody agreements are sometimes unworkable, particularly when
the parties hold significant hostility toward each other, live long distances from each other, or face other
practical obstacles.118 Examples of the latter can include children who are distressed by moving between two

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households, children with mental health or health needs that require proximity to treatment resources, and
adolescents who value school extracurricular activities and friendships in one locality relative to the other one.
Joint custody thus tends to be reserved for couples that have the capacity to carry it out without repeated legal
motions and protracted proceedings, and for family or child circumstances that do not make the plan
unworkable.119
Sometimes little difference exists between many joint-custody arrangements that specify parenting time for
both parents and a sole-custody arrangement that specifies visitation time for the noncustodial parent.120 An
arrangement that is truly joint would (1) avoid naming any parent the primary or residential custodial parent;
(2) require that all major decisions be made by both parties; (3) provide that each parent retain at least some
decisionmaking responsibility in certain limited areas, either minor or major; (4) include an agreement
concerning whether and how removal from the area may occur; (5) include clear specifications of parenting
time; (6) include a mediation mechanism, to be completed prior to the ability of either party to file a motion
for court resolution; (7) provide for periodic review of the agreement; (8) include an agreement as to the
parties’ access to records and information concerning the child; and (9) require advanced notice of any of the
children’s major activities and events.121 Another type of joint-custody arrangement, designed to minimize
the impact on the child of relocating to a different house every week, is “bird nesting,” where the parents
rotate through a home in which the child lives on a permanent basis.122

(f) Special Populations

The shifts in custody standards discussed above probably reflect changes in society. The changing roles of
women, for instance, have provided the push for standards that are gender-neutral. The increase in divorce
rates, and the parallel decrease in marriage rates (the lowest in American history123), have also contributed to
diverse norms for childrearing, with blended families and stepparents now common phenomena. The ease of
modern movement in the modern economy has left grandparents isolated from their grandchildren after
divorce. At the same time, financial pressures create pressure to return to extended-family living
arrangements, and adult children, including young mothers, are living at the homes of their parents longer
than they did in the 20th century.124 While parents in the military have always struggled with the impact of
their unique career demands on custody disputes, the increasing role of women in the military has raised even
more awareness of these challenges.125
Other changes have created families that diverge significantly from the traditional model. Some of these
relationships (e.g., heterosexual cohabitation and childbearing outside marriage) are now commonplace.
Similarly, gay marriage has now been legalized and substantially destigmatized.126 All these trends of the past
few generations have increased the pressure on courts to resolve custody cases efficiently, while simultaneously
creating ambiguities concerning how the law should recognize and address diverse parenting roles and
responsibilities in custody disputes.
The “village” involved in raising children (grandparents, live-in aunts and uncles, nonbiological married
and unmarried homosexual parents, stepparents) has a particularly ambiguous role. Although some of these
individuals may not have legal “standing” to ask for custody and thus are immediately disenfranchised, the
visitation rights of nonbiological and nonadoptive individuals who assume major parenting roles and

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responsibilities are sometimes recognized.127 In some situations, even custody is granted to nonbiological
parents. For instance, about 40,000 procedures in which embryos are created through in vitro fertilization
(IVF) technology occur each year. In cases involving surrogate mothers using IVF (using donated sperm and
an unknown donor’s implanted eggs), custody is sometimes awarded to the surrogate even though she is not
genetically related to the baby, especially when prebirth agreements are ambiguous.128
The law is constantly struggling to keep pace with the numerous ways in which modern family living
arrangements do not adhere to the traditional nuclear family model.

(1) Same-Sex Parents

As symbolized by Obergefell v. Hodges,129 the 2015 United States Supreme Court decision that guaranteed the
right to marry a person of the same gender, attitudes toward same-sex couples have changed dramatically in
the past few decades. At the end of the 20th century, many courts were hostile to the claims of gay
individuals, even when they were the biological parent.130 Then in 2003, in Lawrence v. Texas,131 the
Supreme Court struck down a Texas law criminalizing homosexual conduct. Although Lawrence did not
address custody issues, it did state that one reason why criminalization of homosexuality is unconstitutional is
that it facilitates discrimination against gays and lesbians in matters relating to “family issues.” In combination
with the Supreme Court’s earlier decision in Palmore v. Sidoti,132 which bans custody decisions based on
hostility toward racial groups, Lawrence instilled caution about denying custody simply on the ground of
sexual orientation. Obergefell should encourage that trend with respect to both biological and nonbiological
parents in same-sex relationships. Indeed, one commentator has declared that although the impact on custody
disputes involving children born pre- Obergefell is not clear, “[n]ow that marriage is a fundamental right of
same-sex couples, it seems likely—if not certain—that non-biological same-sex parents will enjoy the
presumption of parentage to children born during a marriage or adoption.”133
Nonetheless, whether or not a child was born before Obergefell, a nonbiological same-sex partner is well
advised to formally adopt the child to ensure parental custody rights, given the vague state of the law.
Additionally, a parental agreement about custody, specifying legal rights and responsibilities in the manner of
a will, can ensure equal consideration.134 These contracts are not enforceable under the law, but courts
consider them to be a strong indication of the parental views of the children’s best interests.135

(2) Military Families

For separated, divorced, or never-married military parents, the stress of deployment to distant, sometimes
overseas, locations poses special challenges in custody disputes.136 In recognition of this fact, the Service
Member’s Civil Relief Act suspends for at least 90 days court proceedings that a service member cannot attend
because of deployment,137 and several states have enacted statutes that deal specifically with military parents
facing visitation and custody disputes.138 The Uniform Deployed Parents Custody and Visitation Act
provides a model for such statutes.139 It bars consideration of deployments and relocation in deciding the best
interests of children; encourages parents to reach enforceable agreements prior to or during deployment;
allows for prompt procedures and electronic testimony to facilitate case agreements and adjudications;

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authorizes judges to grant visitation rights to family members with close relationships with the child (as long
as doing so is in the child’s best interests); and promotes expeditious resolutions in the face of impending
deployment or at the termination of deployments. Special forensic issues that can arise in such cases include
the impact of the deployment cycle on family relationships and roles; the mobility of military families more
generally; the impact of posttraumatic stress disorder and other combat-related conditions; and the
assumptions and biases about the military on the part of both the nonmilitary spouse and the evaluator.140

(3) Multinational Families

In additional to the usual state laws governing custody disputes, treaties and international law may have an
impact on disputes between spouses from different countries. Under Title III of the International Child
Abduction Prevention and Return Act,141 which implements the Hague Convention on the Civil Aspects of
International Child Abduction,142 the Department of Homeland Security, Customs and Border Protection,
the State Department, and other federal agencies have established a program that prevents departure of a child
from the United States if ordered by a court of competent jurisdiction. Evaluations that might support such an
order may need to accommodate language and cultural differences, large geographic distances between the
parents’ residences, and different norms and expectations concerning childrearing.

(4) Native American Families

In 1978, acting on data showing that a large percentage of children from mixed Indian and non-Indian
couples, as well as abandoned and neglected Native American children, were being placed with non-Indian
families, Congress enacted the Indian Child Welfare Act (ICWA).143 The ICWA gives tribal courts exclusive
jurisdiction over cases involving children who reside on or are domiciled on reservations or who are wards of
the tribe, and presumptive jurisdiction over children not living on reservations (although transfer to tribal
court can be vetoed if trial in that court would create undue hardship or if the child objects and is over age
12,144 or if the tribal group is not certified as a “tribe” under the ICWA145). For a time, several states
construed the ICWA to allow state rather than tribal jurisdiction over cases where the child was not part of an
“existing Indian family.”146 However, the state supreme court that initially created this exception subsequently
reversed itself,147 and today the Department of Justice regulations specifically reject the exception.148 Custody
evaluations in this setting require understanding of Native American culture and values, especially in those
cases where a non-Indian is seeking custody.

(5) Grandparents and Other Third Parties

The increasingly diverse configurations of families constantly push the legal envelope in custody matters.149
Thus, for instance, as households have become less likely to include extended-family members, and as non-
work-related relationships have become less common and less intense, the law has more routinely had to deal
with the extended-family relationships that do remain and that might enhance the well-being of children.
Although less rigidly applied in recent years, the general rule in most jurisdictions remains that biological

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parents lose custody to a nonparent only when the parents are unfit.150 This biological orientation applies
even when the nonparent is a stepparent who has developed a close relationship with the child and the
opponent is a grandparent rather than the parent.151 Moreover, even when states have opened the door to
custody by someone other than a biological or adoptive parent, they generally have established a strong
presumption in favor of custody by the parent,152 and have also been reluctant to grant visitation rights unless
the nonbiological parent continues to contribute to child care.153
Consistent with the biological orientation of custody law, the one major exception to the presumption
against third-party custody occurs when the third party is a grandparent. By the 1990s, all 50 states, while
maintaining a strong presumption in favor of parental custody when a grandparent seeks custody,154 had
enacted statutes recognizing visitation rights for grandparents who wished to maintain contact with their
grandchildren when their adult children no longer had custody.155 Such reforms in part reflected the growing
political influence of older Americans, and specifically their success in convincing legislatures to recognize
grandparents’ rights. But they also reflected the changing roles of grandparents. Although the number of
grandparents present in households with children steadily declined during the 20th century,156 these family
members—especially the parents of the custodial parent—can today assume increased importance after
separation and divorce.157
However, the movement in this direction was slowed somewhat in 2000, when the Supreme Court decided
Troxel v. Granville.158 Justice O’Connor’s plurality opinion reasoned that the parents’ fundamental right to
make childrearing decisions requires that their views be given “special weight” in deciding visitation issues.
Although the Court did not strike down Washington’s visitation statute, which permitted a court to grant
visitation rights to “any person” if consistent with the child’s best interests, it did hold impermissible the trial
court’s refusal in Troxel to give any deference to the mother’s desire to avoid visitation by the grandparents.
It is important to note that Troxel did not make the parents’ views on third-party visitation dispositive.
Even so, several courts have since struck down statutes that permitted grandparent visitation under various
circumstances.159 Other courts, arguably more in line with the gist of Troxel, have merely required some
deference to parental desires about visitation.160 Nonetheless, the unanimity about grandparent visitation that
existed prior to Troxel is now gone.
Even if constitutional concerns are put aside, the proper approach to this issue is not entirely clear.
Although not doubting the general desirability of strong grandparent–grandchild relationships, some
commentators have hypothesized possible negative side effects of legal enforcement of such relationships in
divorce cases. In particular, the new standing of grandparents may exacerbate family conflict by adding new
parties to the fray in custody and visitation battles.161 Thus the legal recognition of grandparents’ interests
may complicate bargaining by the divorcing parents,162 and may even increase the likelihood of conflicts
between the divorcing parents and their children.163
Regardless of the policy’s wisdom, clinicians may find themselves faced with new questions as grandparents
seek visitation. At the same time, the underlying inquiry about extended-family relationships should not be
appreciably different from the traditional assessment aimed at facilitating custody and visitation arrangements
most in keeping with a child’s interests. In other words, grandparent–grandchild relations may well affect
courts’ parental custody and visitation decrees even when they are not the direct focus of a custody dispute.

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 (6) Parents Who Are Batterers

Domestic violence cuts across all socioeconomic lines and affects millions of families, and the risk of such
violence increases significantly after a couple separates.164 In some jurisdictions, increased awareness of and
responsiveness to domestic violence have led to legal presumptions against custody by batterers.165
Occasionally, the violence in family relationships is so substantial it has triggered extraordinary remedies. In
1995 a pioneering court in New Jersey ordered not only that the parents divorce but also the creation of new
birth certificates and Social Security numbers, so that those at risk for family violence could acquire new
identities, in a family law equivalent of the Federal Witness Protection Program.166 Other jurisdictions have
moved in this direction as well.167
Custody evaluators may be able to assist in identifying the potential for domestic abuse and its impact on
children.168 For instance, they may be able to point to research about the relationship between parental
substance abuse and exposure to child abuse and neglect,169 and make distinctions between violence aimed at
control and intimidation, on the one hand, and situational violence on the other.170 But addressing the family
violence issue in the custody setting is fraught for several reasons, noted here and discussed in detail in
Chapter 15.
First, discovering the relevant facts and making the relevant predictions can be very difficult.171 Although
abuse is sometimes hidden by both parties, it can also be falsely claimed or exaggerated.172 Second, where
documented violence against children exists, decisionmakers must be careful not to avoid unfairly
revictimizing spouses who did not (perhaps because they could not) prevent it. Third, there is significant
disagreement on the strategies for preventing abuse and keeping children safe after divorce,173 especially given
the reality that abusing spouses may continue to have contact after separation.174 Fourth, unclear from either
the clinical or legal perspective is the best way to assess the true desires of the children, whose interests may
differ from those of one or both parents but who may feel constrained in voicing them.175

(7) Parents Who Relocate

A parent may need to relocate for a new career or a new relationship; to be near extended-family members,
friends, or aging parents; or to parent an older or a new child. Although, for constitutional reasons, a court
typically cannot prevent such a move by a custodial parent, restructuring of the custodial relationship or
visitation arrangements may have that effect. Some jurisdictions have placed restrictions on relocations,176 and
others have liberalized standards for relocation.177 The American Academy of Matrimonial Lawyers’ Model
Relocation Act provides recommendations for a uniform approach to relocation controversies.178
The issues that an evaluation might address in such a case include the impact of changing schools and
friendships, the emotional preparedness of the children to handle loss, and perhaps the question of whether
the move is being made in good faith. Evaluators can highlight the risk factors associated with relocation and
ways to ameliorate those factors. In particular, suggestions about how to revise the parenting plan in the
children’s best interests could be helpful.179

(g) Multiplicity of Issues

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The foregoing examples illustrate the multiple issues that may arise in any given custody dispute beyond the
matter of custody per se. Despite attempts to provide more precision (as with the primary-caregiver and joint-
custody standards), the modal practice in child custody and visitation cases remains broad judicial discretion.
Even in joint custody, the allocation of physical custody may be subject to the discretion of the court, as may
be the arrangements for financial support of the children. In more traditional, sole-custody arrangements,
there is a seemingly infinite array of possibilities for amount and conditions of visitation. Moreover, the court
may make other, less central determinations (e.g., whether the children will go to summer camp; if so, who
will pay) if they are in dispute. There may be financial undertones to custody disputes that are inextricably
intertwined with other parenting concerns and allegations.180 For instance, a father who values time with his
children may not fight a property settlement that is generous to his wife, and may concede custody if visitation
arrangements are liberal. Courts also consider residential instability, as well as disorganization in homes and
neighborhoods.181
The broad range of potential dispositions in custody disputes, particularly when a best-interests standard is
employed, is important in the present context for two reasons. First, the breadth of possible dispositions
suggests the need for a wide-ranging evaluation. Second, it creates inherent difficulty in ever generating an
adequate research database that could be useful in charting specific dispositions in individual cases. The
possibilities are simply too numerous to compare.

16.03. WHAT DO WE KNOW?

(a) Effects of Divorce on Children

Parental separation and divorce are almost always tense events for children. Research conducted over the past
several decades has examined both the short-term and long-term effects of these traumatic events on children
and families.
A major advance in knowledge about the effects of divorce came from two longitudinal studies, conducted
in Virginia and California and reported in the 1970s and 1980s.182 In general, these studies found that
immediately after divorce and for some time thereafter, the typical family experienced significant “emotional
turmoil,” but that after a year or so the situation stabilized. However, even at five years, adjustment difficulties
persisted for some children, especially boys. Moreover, long-term effects varied considerably, depending on
the child’s predivorce coping skills, the stability of new arrangements, and the amount of support in the home
environment.183 Preschoolers appeared to be the most traumatized initially, but were minimally affected ten
years later.184 Adolescents were more likely to disengage, but if that disengagement also involved finding
support from other adults (such as the noncustodial parent, a grandparent, a teacher, or an adult family
member of a friend), it actually had “salutary effects”; if instead disengagement occurred in the absence of
adult monitoring, deviant behavior was more likely.185 These and other earlier studies also indicated that the
divorce “crisis” is exacerbated if there is very high conflict between the parents; in such cases, children are
worse off when the parents stay in contact.186 In less conflicted situations, however, postdivorce adjustment
(especially for young boys) was apparently facilitated by frequent visitation by the father (where the mother
had custody).187
Finally, relevant to assessments under the primary-caregiver and approximation standards, the research

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indicated that parental and behaviors at the time of divorce (when a custody evaluation is likely to occur) are
not predictive of postdivorce behavior. For instance, the new custodial situation might modify male parent
behavior by turning some fathers into “superdads” and causing others to withdraw.188 And the downward
economic mobility engendered by some divorces can clearly affect the success of various dispositions.189
Both of these initial longitudinal studies involved relatively nondiverse samples (72 and 60 white middle-
class families, respectively). Furthermore, many of the data were based on self-report, and measurements of
well-being were not always standardized. A number of more recent studies—conducted with different types of
samples, incorporating more pre- and postdivorce variables, and focusing on transitional stages in the
postdivorce process—have built on early research efforts and have further informed our understanding of how
divorce affects children.190 These studies reinforce the view that many children are resilient and suffer few
significant negative long-term effects of divorce.191 Moreover, those negative effects that are found may not
result from the divorce per se, but from other variables. These include levels of interparental hostility and
conflict (both pre- and postdivorce); domestic violence and other forms of intrafamilial abuse and neglect;
postdivorce complications involving relocation or other factors; cooperation or conflict related to remarriage
and cohabitation; and parental mental health and substance abuse concerns.192
Despite these moderating factors, the research also indicates that divorce can have seriously negative effects
under certain circumstances.193 For instance, when divorce results in increased impoverishment of single-
parent households, it can be very detrimental to child well-being—especially when the single parent is a
woman, is a minority group member, or is poorly educated.194 Children clearly also suffer when unrelenting
high conflict between parents occurs during divorce, or continues after it because of a failure to set clear
boundaries between parents and any new partners that exist.195 For some children, mental health issues persist
long after divorce,196 especially if abuse is associated with it.197 As compared to peers from intact families,
children of divorced parents also appear to have an increased risk of performing lower on measures of
academic achievement and academic motivation and engagement,198 although these findings vary
considerably according to age and other variables,199 and there is still some dispute over whether these effects
are the result of divorce or begin before divorce.200
In short, the effects of divorce on children will vary widely, depending on numerous factors. In light of the
research, it may be useful to think of divorce impact as a trajectory, not a discreet outcome. Negative effects
are not inevitable or necessarily long-term. Parents’ characteristics or levels of distress are not necessarily
predictive of how they will function in the postdivorce phase of life.201 Acute and disorganizing anxiety or
strain seen in the immediate postdivorce period may or may not persist, and the effects of any acrimony that
does persist may be ameliorated by other support systems. While many children will not suffer long-term
effects of divorce even if parenting is merely competent, for many other children parents will need to make a
conscientious effort to protect their children from their own anger, pain, grief, fear, and distress over
transitions, and from the upheaval in everyday life that divorce can bring.202 The message for the custody
evaluator is that reaching a definitive conclusion about the effects of a particular divorce on particular children
will be a rare event.

(b) Father Custody

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Although the law now is ostensibly gender-neutral, father custody remains a relatively rare event in law.
However, in practice, it is not rare; roughly a quarter of single-family households are headed by fathers.203
While “[c]ourts have warmly embraced the concept that it is generally in the best interest of the child to have
a healthy relationship with both parents following marital dissolution”204—a position that social science
research supports, at least when the coparenting relationship is strong205—the impact of giving sole custody to
the father is less well studied, partly because it is so rare. The research that has been conducted suffers from
numerous methodological problems.206 Nonetheless, the existing research suggests that fathers who become
principal caregivers for their children are able to carry out “maternal” caregiving while maintaining the sort of
physical rough-housing often associated with men.207 In short, contrary to the assumption underlying the
tender-years exception, research gives almost no reason for a general gender-based preference, especially when
the father is present at birth.208

(c) Father–Son, Mother–Daughter Custody

A 1979 study that compared observations of maternal-custody, paternal-custody, and intact two-parent
families (20 families per group) indicated that the social development of children ages 6–11 proceeds more
smoothly when children live with the parent of the same gender.209 Thus boys in single-father homes were
found to be more socially competent than boys in intact families.210 These data were consistent with other
research showing less frequent coercive cycles between custodial fathers and sons than between custodial
mothers and sons, and greater self-perceived difficulty of fathers in dealing with adolescent daughters than
with adolescent sons,211 as well as research suggesting that adolescent daughters have more adjustment
problems in father-custody than in mother-custody homes.212
In theory, parent-child same-gender dyads may be likely to do better because of the availability of a model
of gender-related behavior and because of the parent’s own experience in growing up. The parent’s own
experience may be manifest not only in useful practical advice for the child, but also in maintenance of
emotional closeness and support as the child enters adolescence and sexuality becomes a greater issue. A
simple conclusion that children automatically will do better with the parent of the same gender is
inappropriate, however, because it ignores the possibility—indeed, probability—of remarriage. The lack of a
same-gender role model would presumably be mitigated in a stepfamily, although remarriage presents other
challenges for adaptation by parents, stepparents, and children.213
Moreover, the advantages of same-gender custody arrangements may be countered by the disadvantages.
Children learn important lessons from both parents.214 Gender is a sufficiently powerful independent variable
that children are likely to learn somewhat different ways of relating to others and solving problems from their
mothers and fathers (and stepparents). Moreover, a same-gender parent preference would require separating
brothers from sisters. The conventional wisdom is that, all things being equal, children adjust better when the
sibling group remains intact, although there is very little research testing this assumption.215
Given this complex picture, it is unsurprising that the match between parental and child gender is not a
consistently strong factor in children’s adjustment.216 Indeed, more recent studies call the findings of earlier
studies into question.217 Perhaps because of some of the factors identified above and because of changes in
childrearing practices, studies that have directly tested the assumption that any particular type of parent is

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preferable have failed to find significant support for the hypothesis.

(d) Joint Custody

Joint physical custody clearly requires diligent efforts by both parents to make it work. Thus, despite its
intuitive attractiveness, research suggests that it is often not the optimal arrangement. The positive results that
appeared in early studies of joint physical custody (conducted before legal presumptions favorable to such an
arrangement were enacted) must be interpreted cautiously, because the parents participating in the research
were especially highly motivated to make joint physical custody work.218 More recent research studies of joint
custody arrangements, over a wider range of parents and children, also reach positive outcomes compared to
maternal custody, but often with only modest statistical support.219
On the negative side are several studies questioning the value of joint custody in particular situations.
Because continuing parental contact and negotiation are required to sustain joint physical custody, in a high-
conflict situation the joint arrangement is more likely to be associated with poor adjustment;220 it may have
the unintended consequences of exacerbating the impact of interparental conflict and even increasing domestic
violence.221 Even in the absence of serious conflict, a disengaged style of parenting is common among joint-
custody parents, with disengagement or conflict occurring even among cooperative parents when one or both
parents enter new relationships.222 Furthermore, initial agreement on joint custody can change to
dissatisfaction in parents who come to perceive the postdivorce agreement to be different from the
arrangement to which the couple agreed.223 When viewed across all divorce situations, parents in shared
arrangements tend to have lower levels of acrimony, but it is unclear whether this reflects predivorce
willingness to enter into a joint arrangement, a gradual waning of hostilities, or the influence of continued
contact and cooperation via shared parenting. In addition, the continued movement between households
required by shared parenting can be stressful for children, and the continued need for contact can be stressful
for the parents.224
At the same time, the potential benefits of shared parenting for children are several: ongoing contact with
and guidance from both parents; continued acknowledgment of the roles and involvement of both parents;
maintenance of contact and attachment; and more engagement of the party who pays child support (and thus
less risk that those payments will be neglected).225 Supporting these hypotheses, the most recent meta-
analytic reviews have found that joint custody commonly achieves better outcomes for a child than when the
child lives primarily with the mother, even in some high-conflict situations.226 Joint custody is also associated
with equivalent or better outcomes than sole custody with respect to the father–child relationship, parenting
stress, parental conflict/relitigation, and overall adjustment, although custodial parents tend to fare better
when they have sole custody.227 Furthermore, parent education and mediation in some instances may mitigate
the negative effects of joint custody.228 As with other custody arrangements, practical considerations and
extrafamilial support have much to do with how well joint physical custody works.229
Again, as with the effects of divorce, the research in this area highlights the difficulty of judging on an
individual basis which children will fare better with joint-custody arrangements compared to sole custody.
Nuanced research is lacking that would allow evaluators to weigh the relative impact of interparental
communication patterns and flexibility; active and passive involvement in shared parenting; the quality and

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significance of changes (whether formal or informal) to parenting time arrangements; children’s school and
activity schedules; the effect of transporting children on continued willingness to engage in shared parenting;
developmental and parenting needs of individual children over the course of childhood; and parenting styles
and approaches to discipline. Research is needed to clarify the influence of these and numerous other
variables.

(e) Special Populations

Mental health professionals may be especially likely to become involved in cases that involve nontraditional
custody or visitation arrangements.230 For some specific topics (e.g., the visitation of parents in prison), the
literature is extremely limited.231 However, for some clinical populations (e.g., parents with serious mental
disorders) there is at least some research on typical parental behavior and children’s outcomes [see § 15.05].
Probably the most significant type of case in this vein arises when at least one parent is gay. The research
rebuts the myths that homosexuality is associated with mental illness, that lesbian women are less maternal
than heterosexual women, and that children reared by such parents are more likely to have mental health
problems or be gay.232 However, a more recent, relatively rigorous study also found that children reared in
such families are more likely to be affected negatively in a number of ways, including incidence of
inappropriate sexual touching, unemployment and welfare rates, and commission of non-minor offenses.233
Noteworthy about this study are the facts that roughly half of the children reared in such families were born
out of wedlock and half into traditional families that broke up, and that many children lived with the gay
parents only sporadically, meaning that the gay families studied tended not to be stable. In short, the study
may say more about the negative effects of divorce and family transition than the impact of gay parents.

(f) Children’s Participation in Decisionmaking

(1) Law and Empirical Research

As noted in the discussion of the best-interests standard, the Uniform Marriage and Divorce Act considers
the child’s wishes as a determinant in best-interests analysis, but it does not indicate the weight to be given to
the child’s own preference. Some states have provided statutory guidelines based on age, reasoning ability, or
both.234 Nebraska, for example, requires consideration of a child’s wishes if he or she is at an “age of
comprehension regardless of chronological age, when such desires and wishes are based on sound
reasoning.”235 In practice, age tends to serve as a proxy for competence and maturity.236 Older children are
routinely asked about their custodial preferences; children under age six rarely are asked.237
Research on children’s competence in this context is somewhat limited. Children are capable of providing
accurate and meaningful information about their experiences, thoughts, feelings, and perceptions, but young
children sometimes are susceptible to the effects of pressure, bias, and suggestion [see § 7.07(b)].238 One
quantitative study found that even elementary-school-age children gave adult-like reasons, in response to
hypothetical situations, for preferring a particular custody arrangement.239 The rationality of the responses
was more highly related to the children’s general cognitive competence than to their ages. However, the direct
application of these results is limited somewhat by the fact that children whose parents were divorced or

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divorcing were removed from the sample.
There is also little research directly testing whether querying children about their preferences is
psychologically harmful because of the bind in which it places them.240 Relatedly, there is little research on
the effects of the procedure for involving a child (e.g., whether interviewing should take place in chambers or
be carried out by a mental health professional). This lack of research is unfortunate. Because the best-interests
standard tends to encourage litigation, it tempts parents to influence child preferences.241 Thus evaluators and
courts must keep in mind that those preferences may be the result of parental pressure and loyalty conflicts, as
well as the product of the inhibitions, short-sightedness, and limitations in capacity to articulate their best
interests that often afflict the expressed desires of young people.242 Research on when and how children’s
desires are best elicited could help better structure children’s participation in custody disputes.

(2) Professional Standards and Practices

Although in some quarters the direct involvement of children in matters pertaining to their families remains
controversial, the conventional legal wisdom now seems to be that children’s voices ought to be heard, at least
when the child is beyond infancy. For instance, in one jurisdiction in which there was no legal obligation to
elicit children’s opinions, most judges indicated that they nonetheless did so in cases not involving
preschoolers:

The judges reported that children below the age of six were the subject of fifty percent of litigated custody disputes, and most agreed that
children’s wishes in this age group were irrelevant to the decision. In contrast, the vast majority of judges reported that they routinely
attempted in some way to get information about older children’s wishes. Even for children in the six- to nine-year age group, sixty-five
percent of judges tried to obtain some information about the child’s preference, although usually not directly from the child. For children
over fourteen years of age, ninety-seven percent of judges considered the child’s views.243

The judges reported that such interviews typically were brief and conducted in chambers,244 usually alone.245
More than two-thirds reported that children age 14 and over were routinely interviewed, but fewer than one-
fourth said that they commonly interviewed 6- to 9-year-old children, and few ever interviewed
preschoolers.246
The judges’ behavior may have been based as much on practical considerations as it was on respect for older
children’s opinions. If a 15-year-old is refusing to live with one parent but not the other, the law may have few
means (short of draconian measures) to enforce an order to grant custody to the parent with whom the
adolescent is in conflict. Whatever judges’ motivation, however, and notwithstanding the dearth of research
on the effects of children’s direct involvement in divorce proceedings, there is clearly ample opportunity for
mental health professionals to assist lawyers and judges in structuring interviews of children who are the
subjects of custody and visitation disputes.
A separate question is whether a child ought to be given a more formal voice, through a lawyer. In an
analogous context (child protection cases), the American Bar Association (ABA) has adopted the position
that an attorney should be provided for an allegedly abused child and, once so provided, generally should not
stray from advocacy: “The term ‘child’s attorney’ means a lawyer who provides legal services for a child and
who owes the same duties of undivided loyalty, confidentiality, and competent representation to the child as is
due an adult client.”247

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 According to the ABA Standards on child protection, if a conflict arises between the child’s preferences
and his or her interests, the attorney should continue to follow the former.248 However, if “the child’s
expressed preference would be seriously injurious to the child (as opposed to merely being contrary to the
lawyer’s opinion of what would be in the child’s interests),” the attorney also should request the appointment
of a guardian ad litem249 who would protect the child’s interests without being bound by the child’s expressed
preferences.250
The ABA Standards further provide that, “irrespective of the child’s age, the child’s attorney should visit
with the child prior to court hearings and when apprised of emergencies or significant events impacting on the
child.”251 In those contexts, the attorney “should explain to the client, in a developmentally appropriate
manner, what is expected to happen before, during and after each hearing.”252 “In most circumstances,” the
attorney should arrange for the child’s presence at hearings (even when the child is not expected to testify)253
and prepare the child for the experience.254 Building on a recommendation that children’s lawyers receive
specialized training,255 the Standards also presume that a child’s lawyer will undertake an extensive
investigation of the child’s history,256 including interviews not only with the child but also with the child’s
parents, “school personnel, child welfare caseworkers, foster parents and other caretakers, neighbors, relatives,
school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other
potential witnesses.”257
Of course, the ABA Standards just described were designed to guide lawyers involved in child protection
cases, and the specific provisions of the Standards might have been different if the focus had been on custody
in divorce cases. It seems unlikely, however, that ABA custody standards would have differed from its child
protection standards in more than their nuances. Surely it is no more aversive for children in a divorce case
than for those who are believed to have been maltreated to hear about the details of their family life in an
official forum. Similarly, although the state’s interest may differ in degree in the two contexts, surely children’s
attorneys in contested custody cases ought to take due care in investigating potential conditions of custody for
their clients. Indeed, the principal difference in the two contexts in regard to the child’s role may simply be
that the child is much less likely to have his or her own legal representative (even a guardian ad litem) in the
custody context.
Indeed, the relative infrequency with which guardians ad litem are appointed in divorce cases may mean
that some of the educative role normally assigned children’s attorneys will fall on clinical evaluators, who are
ethically obligated to inform their interviewees about the context for the evaluation. In such a situation, the
clinician may even be tempted to act as advocate for the child—a difficult role discussed in § 16.04. When
children do have their own attorneys, however, the clinician’s role is more likely to consist of generating and
communicating information that will assist the attorney in “developmentally appropriate” representation.
Thus, in this context as in many others, forensic clinicians are likely to find themselves used as consultants as
much as evaluators, in the narrow sense of the latter term.

(g) Parental Education Programs

Some courts have implemented training programs for divorcing parents. The goal is to educate parents about
the impact of divorce of children, explain and provide examples of the legal construct of “best interests of the

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child,” minimize interparental conflict, smooth postdivorce adjustment for parents and children, and describe
postdivorce custody arrangements and logistics. Such programs are relatively new, but outcome results of
preliminary studies offer hope that as a result of such programs, visitation time is better tolerated by both
parents, and father involvement is enhanced.258 More research is needed to identify mechanisms of change
and key variables that facilitate cooperation.

16.04. THE TECHNIQUE OF CUSTODY EVALUATIONS

CASE STUDY 16.1

In many cases, legal presumptions or practical reality make it likely that one particular parent will receive custody; in such situations,
custody evaluations often center on the visitation issue. Contested visitation requests typically involve at least implicit allegations of
unfitness and extreme parental conflict. In essence, one parent is claiming that it would be detrimental for the child even to see the other, at
least for any extended period of time. Visitation issues are also difficult because they involve potential de facto termination of parental
rights, but with a low substantive standard (best interests) and standard of proof (preponderance of the evidence). When maltreatment is
alleged, concurrent cases may be pending in three courts on three issues (i.e., postdivorce visitation, child abuse/neglect, and criminal
abuse/neglect), all requiring different standards of proof. Consider the following hypothetical case, which illustrates (1) the difficulty of the
ethical and evaluative questions that may be raised in such cases, and (2) the number of parties who may be involved in and profoundly
affected by evaluations:
Juan and Maria Doe are divorcing after a rather tumultuous marriage. Maria says that Juan’s hostility toward her was so intense that she
was often fearful for herself and their eight-year-old daughter, Martina. However, she admits that Juan never actually was abusive. Juan
describes Maria as having an anxiety disorder that prevents her from interpreting situations correctly. He describes her as someone who
occasionally binge-drinks and then falls asleep on the sofa. When Juan and Maria separated six months ago, Maria was awarded temporary
custody of Martina, and Juan was permitted visitation from eight to five on Saturdays. There is uncontroverted evidence that Martina has
been having difficulty in school since the separation. Although Martina says that she wants to visit her father, Maria has observed that
Martina becomes very anxious on Friday evenings. She has begun wetting the bed frequently on Friday nights. Maria claims often to have
difficulty managing Martina’s behavior when she returns from visits.
After the Does filed for divorce, Juan’s adult daughter from a previous marriage, Sara, came forward and alleged that Juan had abused her
when she was a child. Juan’s denial has been vehement. He claims that Sara must have been influenced by Maria and Martina, and perhaps
manufactured the event because of her emotional distress (which Juan acknowledges) after the first divorce and her anger at Juan, who
admits having walked out on Sara and her mother. Regardless, there is no physical evidence that either Sara or Martina has been molested,
and Sara had made no such allegations prior to the present divorce custody proceedings.
Juan insists that it is important for both Martina and him to maintain a close relationship. Therefore, he is requesting that the court
order weekend (overnight) visitation during the school year and alternate-week physical custody during the summer. He is willing to
concede legal custody to Maria. On the other hand, Maria says that the visits are obviously upsetting to Martina, and she worries for
Martina’s safety. She has asked the court to bar any visitation. The court orders evaluation by a clinical psychologist to determine the
visitation arrangement (if any) that would be in Martina’s best interests. All parties are to cooperate in the evaluation.

Questions: (1) How would you conduct the evaluation? (2) What kinds of conclusions might you be able to reach? (3) You receive a
phone call at home from Sara. She says that Maria has told her that you are conducting an evaluation of Juan. Sara is calling you because she
fears that Juan will retaliate against her. She wants to know whether you think that Juan might in fact harm her. What do you say or do? (4)
If you decide to interview Martina as part of the evaluation, what, if anything, should you tell her about the purpose of the evaluation and
the limits of confidentiality? What feedback should you give her about your findings at the conclusion of the evaluation?

(a) Auspices: Who Is the Client?

In other contexts (e.g., criminal evaluations), we have defended the practice of having the parties employ their
own experts [see § 4.03(b)(1)]. In an adversary system, justice normally is served by giving each side the
chance to put its best case forward. However, custody evaluations raise unique issues. First, it is the child’s

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interests, not the parties’ (i.e., the parents’) interests, that are theoretically paramount; accordingly, some of
the usual reasons for protecting the interests of the parties do not so readily apply. That is, there may be
substantial reason for the court to seek its own evidence regarding the interests of a third party (i.e., the child).
Second, as a practical matter, it is difficult to do a credible custody evaluation without access to both parents;
yet such access may not be possible in a purely adversarial setting. Even if the clinician is asked to address only
the effects that might occur if custody is granted to the employing party, he or she is hampered by not hearing
the other parent’s side of things, because the family history and family process are likely to be perceived
differently by each party. Accordingly, as a general rule, we suggest that the clinician seek to enter a custody
dispute as an expert for the court, or (as permitted in some states) as the guardian ad litem,259 although there
may be some rare circumstances in which it is sufficient to have access to only one parent.260
A clinician who already has an ongoing therapeutic relationship with one or both of the spouses should be
especially careful to avoid giving opinions without adequate foundation. Opinions as to parental competence
or parent–child relationships should never be offered unless there has been a specific focus on these topics in
therapy sessions. Therapists who testify typically do so as fact witnesses, not expert witnesses. As such,
descriptive data are provided, not opinion data. As indicated earlier, a custody evaluation involves an interview
with the child, with the parents and child together, or both kinds of interviews; both kinds will generally be
necessary if there is to be any substantial basis for an opinion on custody issues. Thus reliance on therapeutic
encounters as the sole basis for evaluation and testimony is inappropriate.
Indeed, it may be that any opinion about custody given by the therapist of one or both parents is
inappropriate [see generally § 4.05(c)(2)]. We have already noted [see § 16.01(c)] the American Psychological
Association’s recommendation that a therapist refrain from offering custody opinions as an expert (as opposed
to acting as a “fact” witness who recounts observations). The reasons for this position are numerous. There is
often a temptation when an adult client is involved in a custody dispute to act to protect the client. After all, if
the client is heavily invested in being a parent, an adverse ruling will be likely to take a substantial
psychological toll. Even when a clinician is treating both parents, as in marriage counseling or couple therapy,
there may be pulls to take sides.261 One parent may feed information damaging to the other. And even if the
clinician could maintain perfect objectivity, evaluation and testimony are likely to create an acute sense of
betrayal on the part of one or both parents. There are similar issues when a clinician hired as a mediator
begins to act like an evaluator [see § 16.01(b)(2)].

(b) Application of the Psychotherapist–Patient Privilege

There are other pitfalls in moving from the role of therapist to that of evaluator (which even cautious
clinicians may be forced to do under subpoena). The applicability of psychotherapist privilege262 in custody
cases is unclear and is highly variable across jurisdictions.263 Can one spouse waive privilege for both when
they have been jointly involved in marriage counseling or couple therapy?264 Can a child assert (or waive)
privilege?265 Or can privilege be claimed at all in custody disputes (given the fact that the contestants are
implicitly, if not explicitly, making an issue of their mental state)?266 If therapy for a child begins in the
context of a divorce custody proceeding, did the therapist obtain permission from both parents to conduct
therapy, as required?

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 In some jurisdictions, these issues are unsettled. As a general rule, in determining whether waiver has
occurred, courts consider whether the evidence is relevant and material to the issue before the court, whether
the information can be secured from any less intrusive source, whether the treatment was recent enough to
retain its relevance, and whether any impact the therapist will describe is situational or pervasive.267 But given
the variability in legal outcomes, clinicians involved in marital/couple or family therapy should seek legal
advice as to the limits of privilege in their jurisdictions [see generally § 4.04(c)]. In the meantime, a therapist
should be aware that material from family, child, or marital/couple treatment is often not protected by
privilege in a custody case—even in jurisdictions recognizing a general psychotherapist privilege, and even
when a person involved in the treatment objects to the admission of evidence based on it.

(c) Scope of the Evaluation

In the past two decades, a number of books describing clinical assessment procedures and decision trees in
child custody cases have been published.268 As they indicate, potential approaches to assessment in custody
evaluations include (1) comprehensive observation and interviewing of the parents and children, and gathering
of interview and archival information from third-party sources; (2) the administration of traditional
psychological assessment measures; and (3) the administration of specialized assessment measures. Our
position is strongly in favor of the first of these approaches. For reasons discussed below, we recommend only
a limited role for the use of traditional assessment measures. We discuss the first approach here. The use of
different types of assessment measures is discussed in the following two sections.

(1) Identifying the Referral Question

The first goal in any custody evaluation is to identify the precise referral question to be addressed. Not all
custody evaluations are alike. In some cases, the parties or the judge want a comprehensive inquiry; in others,
they are interested only in a limited range of special issues. Examples of specific information that might be
requested include the developmental needs of children at different stages; how to best educate children at
various ages about parental separation and marital termination; the effects of interparental conflict on
children; ways in which children can be supported and the effects of divorce ameliorated; factors contributing
to resilience in children at different developmental stages; interventions that address parental resistance to
parenting plans; and the pros and cons of different plans. Other specific referral questions might focus on the
impact of separating siblings; domestic violence or child maltreatment; the mental and physical health of the
parents; and the likelihood that each parent would support the child’s relationship with the other parent.269
As noted earlier, statutes and case law also sometimes require consideration of the wishes and desires of
children of a certain age.

(2) Investigative Interview

Within the bounds of the referral question, even one that is relatively restrictive, the breadth of the best-
interests concept and the multiplicity of factors potentially affecting the outcome of various custody and

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visitation arrangements mean that a child custody evaluation is best summarized as comprehensive [see, e.g.,
the Gonz-Jones report, § 19.14(a)]. Table 16.1 provides an outline of such a comprehensive evaluation. In the
typical custody case, parents, stepparents, and children should all be interviewed as to their perceptions of
relationships in the family (past, present, and future); their preferences about custody; and any special needs of
the children. Because of the significance of interparental conflict in the literature on effects of divorce, special
attention should be given to the parents’ capacity for cooperation, the nature and intensity of their
disagreements about the children, and points of possible compromise. As a means of observing parent–child
relationships in a realistic environment, home visits may be advisable as well, although considerations of
geographic expanse and remoteness may be relevant in some cases.

TABLE 16.1. Clinical Inquiry in Custody Evaluations (for Each Parent and Child)
Parent’s description of marital relationship and family structure
Parent’s attitude and concerns regarding the other parent, his or her access to the children, nature of visitation, etc.
— Discussion with children about the separation and divorce
— The parent’s communications with the children about the other parent
— The parent’s goals for visitation and decisionmaking should he or she be awarded custody
Parent’s prior and current relationship with the children and responsibility for caretaking
— Reaction to pregnancy and childbirth, and impact of these on relationship and functioning outside the family
— Early caretaking
— Current caretaking
— Punishment
— Leisure and social activities
— Interactional style
— Allegations of abuse/neglect
Parent’s current, anticipated living and working arrangements
— Who is living in the home
— Significant others
— Day care, babysitting
— Schools and school districts
Parent’s emotional functioning and mental health
— Prior or current substance abuse/dependence and treatment
— Prior or current mental health problems and treatment
— Emotional response to the divorce
Child’s attitude and preference regarding the parents, current living arrangement, visitation, and future placement
Child’s depictions and conceptualization of relationship with each parent
— Punishment
— Leisure and social activities
— Interactional style
— Allegations of abuse/neglect
Child’s emotional functioning and mental health
— Prior or current substance abuse/dependence and treatment
— Prior or current mental health problems and treatment
— Emotional or behavioral responses (i.e., problem behaviors) to the divorce
Child’s social, academic, and vocational functioning prior to and after divorce

Note. Adapted from RANDY OTTO, OUTLINE ON CUSTODY EVALUATIONS, Florida Mental Health Institute (August 1996).

Nor should the evaluation stop with interviews of the immediate family. Contact with extended family,

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teachers, social service agencies, and even child care providers can illuminate potential sources of support (or
the lack thereof) under various custody arrangements (e.g., switching between parental homes). Sources
outside the nuclear family may also give important, relatively objective glimpses of children’s responses to
arrangements developed during separations and under temporary custody orders. In that regard, the existing
and previous custody arrangements can be conceptualized as natural experiments of a sort. The clinician
should be sure to elicit information as to the parties’ attitudes and behavioral responses to those arrangements.
Referral questions might call for a somewhat different focus. For instance, in a case where one parent is
planning to relocate, additional considerations include determining each parent’s understanding of the motives
for the proposed move; parental views of a viable parenting plan if the move takes place; logistics and
financing of travel for shared parenting time (and whether it is the child or the adult who travels); parental
perceptions of what might happen if the court disallows the move; advantages and risks to international
moves; how each parent might promote a relationship between the child and the other parent; and parenting
plans in anticipation of different possible outcomes. In a case involving allegations of domestic violence, abuse,
or other maltreatment, the evaluation typically includes assessment of each parent’s view of the history of
violence or maltreatment and conflict resolution (both during the relationship and after separation); accounts
of the history of violence or maltreatment; reports of fear of, or actual incidents of, violence or maltreatment;
reports of threats or stalking; prior or recent harm to persons or property; reports of how the children were or
are being affected by the parental conduct; the perspective(s) of the children; safety plans; and relevant risk
factors.
The overarching approach should be multimodal, and the clinician should avoid the temptation to focus on
single factors out of context. For example, a finding that a parent has a mental illness or personality disorder,
or even discovery of a history of significant substance use, should not be the end of the inquiry into parental
fitness. Such a finding must have bearing on current parenting and parental functioning to have legal
significance. A focus on psychopathology has as much potential to obfuscate as to contribute to clinically
meaningful findings. Similarly, where statutes allow for a child’s input into the custody decision, a child’s
expressed wishes alone are insufficient, but should be contextualized by assessing the child’s intellectual
sophistication, decisionmaking abilities, social maturity, and developmental stage. And where relationship
dynamics are characterized, prevailing research-based theories should be preferred over conjecture.

(3) Record Review

Given the often highly conflicted and highly nuanced nature of custody evaluations, corroboration of parent
and child reports is important. Review of health, mental health, educational, and other records, obtained via
court order or after waiver of the psychotherapist–patient privilege, is an important part of that
corroboration.270 Records are particularly important in cases involving children with significant mental health
or behavioral concerns; allegations of parental mental illness or substance abuse; and allegations of domestic
violence, child abuse, or neglect. For example, in a case involving allegations of domestic violence, the
evaluator might seek the following:

Medical records documenting physical or emotional injuries.

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 Criminal records relevant to domestic violence or other forms of interpersonal violence.
Police complaints or reports regarding the same types of behavior.
Witness reports or any other independent observations of physical or emotional injuries.
Child Protective Services documents concerning children’s accounts of domestic violence.
Reports or documentation of weapons in the home.
Records regarding neglectful conduct or attempts at child abduction.
Records regarding domestic-violence-related anger management interventions.

The information obtained through this type of record review should be used in a descriptive manner,
reserving for the court the legal relevance of their content. Thus, in the hypothesized domestic violence
inquiry, the evaluator should report the relevant information and provide relevant risk factors, but should not
declare that the abuse that occurred was a crime (unless a court so found), that it will continue to occur, or
that it automatically precludes a parent’s future involvement with the children.

(d) Traditional Psychological Assessment

One of the more controversial issues in the child custody literature is the proper role for traditional
psychological measures in the assessment process. Research on typical practices of custody evaluators indicates
that the use of these measures is routine.271 Grisso summarized the debate over the utility of these practices in
his 1986 text on forensic assessment:

Psychological testing of parents in custody cases (for intelligence, personality, and/or psychopathology) has been described variously as of no
utility, of dubious value, potentially useful when performed selectively and only when a clear need is identified, and one of the better
indications of a parent’s true feelings and intentions. Rarely are opinions of this type offered with any empirical support or with reference to
any particular psychological tests.272

Within a short time of this review, several other authors weighed in on the issue, with some offering an
unbridled endorsement of psychological assessment,273 others expressing caution regarding their use,274 and
still others advocating against their use.275
Surveys of typical practice show equally varied results. A survey in 1986 indicated that roughly 75% of
psychologists conducting such evaluations used psychological tests of some type.276 A survey conducted ten
years later indicated that the norm continued to be use of such measures.277 In contrast, a 21st-century survey
of one jurisdiction in a Midwestern state found that only 19% of custody evaluators used psychological
assessment of adults, and only 12% of evaluators used child assessment measures. Private evaluators were
much more likely than evaluators appointed by the court to use such measures (53% vs. 3% for adults, and
34% vs. 2% for children).278
It is our contention that psychological assessment measures of clinical constructs (e.g., intelligence,
depression, personality, academic achievement) should be used only when they have direct relevance to the
referral question. Measures of intellectual capacity, achievement, personality style, and psychopathology assess
constructs that are linked only indirectly, at best, to the key issues concerning custody and visitation. As
Brodzinsky notes, a measure might occasionally be helpful—for example, when a child has a possible
impairment that might influence special education needs (e.g., learning disability), or when there is a question

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of significant mental disorder (e.g., depression) in a parent previously so diagnosed.279 However, like most
other commentators,280 he questions the routine use of testing in custody assessments and concludes that
“psychologists routinely misuse test data in this type of forensic case.”281 The danger is that they will be used
in fishing expeditions to “uncover” a diagnosis or to compare the suitability of parents.
Thus we recommend the use of traditional psychological assessment measures only when specific problems
or issues that these tests were designed to measure appear salient in the case. Unfortunately, as detailed in the
next section, specialized tests that purport to assess constructs directly relevant to custody have their own
theoretical and psychometric limitations.

(e) Specialized Assessment Measures

Evaluators sometimes turn to specific measures purporting to provide a more focused determination regarding
custody and visitation. A few examples include the Conflict Tactics Scale,282 the Parenting Stress Index,283
the Child Abuse Potential Inventory,284 the Parent–Child Relationship Inventory,285 the Ackerman–
Schoendorf Scales for Parent Evaluation of Custody,286 and the Adult–Adolescent Parenting Inventory,287
among others.288 Some are global in nature; others focus on the quality of parent–child relationships, stress,
disciplinary strategies, or risk of child maltreatment.
The evidence for reliability and validity of these measures as they pertain to custody evaluations is limited.
Indeed, we have found no methodologically sound research, published in refereed scientific journals, to
support the use of these or similar measures in child custody decisionmaking.289 Some of these measures were
designed for research, so their applicability to custody matters has not been demonstrated. Many of those
designed for applied uses suffer from development flaws. For instance, “content validation” may be limited to
the test author’s logical analysis, and thus some items have speculative relationships to parental abilities and
stress, quality of relationships, or child outcomes. Or validation may rely on unrepresentative, small samples,
or the outcome measure (agreement between clinicians’ opinions and ultimate outcomes) may be affected by
the assessments themselves. Even the best-known scales are psychometrically deficient.290
More generally, these measures tend to reduce complex constructs to narrow behavior samples (e.g.,
bedtime rituals as indicators of family life, reports of stress as an indicator of emotional reactivity and potential
parenting unsuitability). They thus may ignore a variety of factors, such as the degree of support from
extended-family members and other third parties; the fact that different children demand different parenting;
and numerous parental capacities, such as—to offer just a few examples—the capacities for organization,
perspective taking, emotion expression, playfulness, engagement, discipline, role modeling, arranging
cooperative ventures with other parents (e.g., car pooling), recognizing and addressing the special needs of a
particular child, meal preparation/dietary considerations, and appropriate levels of safety vigilance. Measures
could be developed that contain these types of items, but they are not always relevant, and no set of discrete
items encapsulates the whole of parenting. Other concerns include whether specific measure scores in the
aggregate can be applied to all children within a family; whether the measures can take into account different
answers by parents and children; whether parent perceptions of children or children’s perceptions of parents
reflect actual relationship quality; and whether the scores measure parenting capacity.291
In short, custody issues are best analyzed through a variety of data sources, not a distillation of a few

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limited and possibly irrelevant items or factors contained in a specific instrument. We join with other
reviewers who recommend caution in the use of these commercially available measures.292 Although some of
these measures may facilitate gathering useful responses regarding parents’ attitudes, knowledge, or values
with respect to raising their children, the lack of adequate reliability and validity studies counsels against use of
the formal indices they yield. Certainly these indices do not identify “scientifically” the parent of choice or
indicate other dispositional conclusions—matters that are properly reserved for the court.293

(f) Recommendations

Whether the evaluation is comprehensive or brief, the recommendations made in a report or testimony should
be tailored to the referral question(s), in a way that focuses on the clinician’s consultative role in determining
the best parenting plan and interventions that might assist the parties.294 Examples of potential
recommendations include coparenting coordination and other conflict management services, emotional
support services, community supports, respite options for mentally ill or overwhelmed parents, self-help
services, anger management referrals, trauma therapy, substance abuse rehabilitation services, domestic
violence safety resources and services, educational and child care resources, risk management, after-school
resources, parent mentoring and support services for parents with cognitive limitations, and identification of
visitation supervisory resources or supervision centers. Recommendations are most helpful when they include
examples of existing services in the community. In some cases, if doing so is within the bounds of the court
order, the evaluator might provide recommendations going beyond possible custody arrangements and address
age-appropriate parenting skills designed to help parents deal with children in divorce. For instance, a report
might suggest strategies to respond to tearfulness, distress, and tantrums in toddlers; how to create a vibrant
learning environment in the home for elementary-school-age children; and how to create a coherent parenting
schedule for middle and high school students involved in multiple activities.
As in any forensic report, the evaluator should be careful to distinguish among descriptive data,
interpretations, and recommendations. Furthermore, evidence-based decisions about legally relevant behavior
(e.g., whether someone is in fact a perpetrator of domestic violence or child maltreatment) should be left to
the judge, as should, of course, the ultimate custody determination. On the latter score, however, the evaluator
might consider an if–then analysis when drafting recommendations. For instance, a report might state,
“Should parent A be granted more parenting time, then this parenting plan and division of parenting tasks is
recommended; should parent B be granted more parenting time, then this (other) parenting plan and division
of parenting tasks is recommended.”

16.05. THE POLITICS OF DIVORCE

We conclude this chapter as we began it—with caveats. Throughout this chapter, we have noted that the
relevant empirical knowledge is especially limited, and that the prevailing legal standards are especially
problematic. Making this combination of legal and clinical conundra even more problematic is the fact that
forensic clinicians involved in divorce cases work against a politically charged backdrop.
Consider, for example, the lead paragraphs from a full-page article in the APA Monitor in the mid-1990s:

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 It used to be that a woman had to be considered a terrible mother to lose custody of her children in a divorce case. It usually took something
like a serious mental illness, substance abuse or child abuse to convince a judge that keeping a mother and her children together was not in
the children’s best interests. But today, losing children through divorce is much easier. Something as seemingly innocent as working late
hours or enrolling a child in day care can be used as evidence of bad mothering.295

The author went on to lament the “devastating” effects of loss of custody on mothers’ mental health.296 Such
mother-centered critiques of egalitarian custody policies assume special significance when viewed in the
context of domestic violence cases, because most such violence is perpetrated by men (as alleged in Case Study
16.1).
The politics of divorce is not simply a matter of gender. Generational conflicts also are in the backdrop. As
discussed in § 16.02(f)(5), such groups as the American Association of Retired Persons have been active in
advocating the interests of grandparents. At the other end of the age spectrum, child advocates are disturbed
that children’s lack of standing in cases involving their own custody often means that their interests receive the
least attention in divorce.297 Following similar logic, concern about the effects of divorce on children has led
some commentators to argue that divorce has become too easy,298 even if more stringent standards and
onerous procedures would have troubling effects on the parents themselves.
Such a complex political context intensifies the potential ethical dilemmas for clinicians. Without
providing elaboration about the ways that “biases” can influence child custody evaluations, the American
Psychological Association’s Guidelines indicate a concern about personal and political interests that may affect
child custody evaluations:

The psychologist is aware of personal and societal biases and engages in nondiscriminatory practice. The psychologist engaging in child custody
evaluations is aware of how biases regarding age, gender, race, ethnicity, national origin, religion, sexual orientation, disability, language,
culture, and socioeconomic status may interfere with an objective evaluation and recommendations. The psychologist recognizes and strives
to overcome any such biases or withdraws from the evaluation.299 (Emphasis in original)

Although the issues typically are subtle, mental health professionals conducting custody evaluations should
take special care to examine ways in which their own experiences and attitudes color their views about
childrearing and “proper” roles—especially gender roles—of family members. They also need to be especially
sensitive to ways that a clinician can be unwittingly drawn into taking sides with a family member.

BIBLIOGRAPHY

Paul R. Amato, The Consequences of Divorce for Adults and Children, 62 JOURNAL OF MARRIAGE & THE FAMILY 1269 (2000).
Paul R. Amato & Jacob Cheadle, The Long Reach of Divorce: Divorce and Child Well-Being across Three Generations, 67 JOURNAL OF

MARRIAGE & THE FAMILY 191 (2005).

American Academy of Child & Adolescent Psychiatry, Practice Parameters for Child Custody Evaluation, 36 JOURNAL OF THE AMERICAN
ACADEMY OF CHILD & ADOLESCENT PSYCHIATRY 575 (1997).
American Psychological Association, Guidelines for Child Custody Evaluations in Family Law Proceedings, 65 AMERICAN PSYCHOLOGIST 863
(2010).
ASSOCIATION OF FAMILY AND CONCILATION COURTS, MODEL STANDARDS OF PRACTICE FOR CHILD CUSTODY EVALUATION (2006),
available at https://www.afccnet.org/Resource-Center/Practice-Guidelines-and-Standards.
ASSOCIATION OF FAMILY AND CONCILIATION COURTS, TASK FORCE ON PARENTING COORDINATION, GUIDELINES FOR PARENTING
COORDINATION (2005), available at https://www.afccnet.org/Resource-Center/Practice-Guidelines-and-Standards.
William G. Austin, Relocation, Research, and Child Custody Disputes, in PARENTING PLAN EVALUATIONS 549 (Kathryn Kuehnle & Leslie
Drozd eds., 2012).

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Sandra T. Azar & Linda R. Cote, Sociocultural Issues in the Evaluation of the Needs of Children in Custody Decision Making: What Do Our
Current Frameworks for Evaluating Parenting Practices Have to Offer?, 25 INTERNATIONAL JOURNAL OF LAW & PSYCHIATRY 193 (2002).
Linda Cavallero & Susan Hanks, Guidelines for Brief Focused Assessment: AFCC Task Force on Brief Focused Assessments (2012), available at
http://www.williamjames.edu/community/children-families-law/upload/mspp-brief-focused-assessment.pdf.
ROBERT E. EMERY, MARRIAGE, DIVORCE, AND CHILDREN’S ADJUSTMENT (1988).
ROBERT E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS: DIVORCE, CHILD CUSTODY, AND MEDIATION (1994).
Robert E. Emery, Randy K. Otto & W. T. Donohue, A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System,
6 PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 1 (2005).
Guidelines for the Pratice of Parenting Coordination, 67 AMERICAN PSYCHOLOGIST 63 (2012).
E. Mavis Hetherington & W. Glenn Clingempeel, Coping with Marital Transitions, 57(2–3) MONOGRAPHS OF THE SOCIETY FOR RESEARCH
IN CHILD DEVELOPMENT (Serial No. 227) 1 (1992).
E. Mavis Hetherington & Margaret M. Stanley-Hagen, Parenting in Divorced and Remarried Families, in 3 HANDBOOK OF PARENTING 287
(Marc H. Bornstein ed., 2d ed. 2002).
MIMI E. LYSTER, CHILD CUSTODY: BUILDING AGREEMENTS THAT WORK (1995) (practical guide for divorcing parents; includes self-
administered questionnaires that may be useful in facilitating and structuring data gathering).
Karen Saywitz, Lorinda B. Comparo & Anna Romanoff, Interviewing Children in Custody Cases, 28 BEHAVIORAL SCIENCES & THE LAW 542
(2010).
David A. Sbarra & Robert E. Emery, Deeper into Divorce: Using Actor–Partner Analyses to Explore Systematic Differences in Coparenting
Conflict Following Custody Dispute Resolution, 22 JOURNAL OF FAMILY PSYCHOLOGY 144 (2008).
PHILIP STAHL, COMPLEX ISSUES IN CHILD CUSTODY EVALUATIONS (2003).
Elizabeth S. Scott, Pluralism, Parental Preference and Child Preference, 80 CALIFORNIA LAW REVIEW 615 (1992).
Judith S. Wallerstein, The Long-Term Effects of Divorce on Children: A Review, 30 JOURNAL OF THE AMERICAN ACADEMY OF CHILD &

ADOLESCENT PSYCHIATRY 349 (1991).

Judith Wallerstein & Deborah Resnikoff, Parental Divorce and Developmental Progression, in A HANDBOOK OF DIVORCE AND CUSTODY:
FORENSIC, DEVELOPMENTAL AND CLINICAL PERSPECTIVES 365 (Linda Gunsberg & Paul Hymotiez eds., 2005).
Richard A. Warshak, The Approximation Rule, Child Development Research, and Children’s Best Interests after Divorce, 1(2) CHILD
DEVELOPMENT PERSPECTIVES 119 (2007).
Richard A. Warshak, Securing Children’s Best Interests While Resisting the Lure of Simple Solutions, 56 JOURNAL OF DIVORCE & REMARRIAGE
57 (2015).

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CHAPTER 17

Education and Habilitation

17.01. INTRODUCTION

Children with mental disorders make up perhaps 13–20% of those eligible for schooling.1 In the past several
decades, two developments in public education have directly affected this group. The first was a movement
toward inclusion of populations previously excluded from mainstream education. Spurred by the separate-is-
not-equal rationale of Brown v. Board of Education,2 in the last third of the 20th century the United States
began to embrace the notion that all children, regardless of mental status, are entitled to an education, and
that failure to provide this education is discriminatory. The second, not always compatible, development was
the standardization of education. Schooling has traditionally been a local matter, with diverse standards. In
recent decades, however, a movement toward a national assessment measure has reflected legislative efforts to
facilitate children’s learning through individual and institutional testing.3
The federal government has played a crucial role in both the inclusion and standardization movements.
The most significant federal program for those with mental disability is the Individuals with Disabilities
Education Act (IDEA) (known from 1975 to 1990 as the Education for All Handicapped Children Act).4
But the Rehabilitation Act and the Americans with Disabilities Act (ADA)5 also give the federal government
a significant role in education policymaking. The IDEA is based on the principle that children with
disabilities are entitled to the same education as their nondisabled peers. It seeks to provide a “free appropriate
public education” in the “least restrictive environment” for all children with disabilities.6 Section 504 of the
Rehabilitation Act prohibits recipients of federal funds from discrimination on the basis of disability and Title
II of the ADA prohibits discrimination on the basis of disability in state and local governmental services,
including public school district services, whether or not they are federally funded [for detailed analysis of the
structure of the latter two statutes, see § 13.02].
Together, these statutes (1) seek to provide comparable benefits and services between those with disabilities
and their nondisabled peers; (2) prohibit policies or practices that, intentionally or not, result in
discrimination; (3) call for reasonable accommodations and modifications to address the needs of students
with disabilities; and (4) aim for feasible integration of all students into the regular educational environment.
For instance, the ADA places the burden upon schools to demonstrate that a student’s removal from a regular
education environment is appropriate.7 The 1997 amendments to the IDEA require states to develop
performance goals and indicators for children with disabilities that are consistent, to the maximum extent
appropriate, with the standards set by the state for all students.8 All three statutes make it illegal for schools to
deny students with disabilities the opportunity to participate in or benefit from a service; to provide them with
a benefit or service that is not as effective as those provided to others; or to provide them with different
services, unless those services are necessary to ensure the same level of effectiveness as those services provided

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to others.9 Where the IDEA, the Rehabilitation Act, and ADA differ, the statute that affords the greatest
protection governs.
Thus students with disabilities must be provided with courses and instruction that teach the curriculum of
general education. The method of teaching may need to be modified through reasonable accommodations,
supplementary aid, or supplementary services. For a small number of students who have significant
disabilities, modifications, adaptations, and expansion of instruction and curricula may be needed. Failure to
adapt assessment criteria or methods of administration to the disabilities of students constitutes
discrimination. To the extent that these statutes accomplish these ambitious goals—sometimes classified
under the rubric “mainstreaming”—they provide a significant rehabilitative mechanism for children with
serious emotional disturbances and learning disabilities.
These statutes clearly implement the inclusion goal. At the same time, they, along with the No Child Left
Behind Act of 2001,10 make assessment and test standardization the key to ensuring the delivery of high-
quality education to children with disabilities, at both the institutional and individual levels. Large-scale
assessments are used to identify strengths and weaknesses in schools and to provide them with the
information needed to make improvements. Individual assessments measure children’s disabilities, indicate
how to respond to them, and determine whether the responses are working.
The inclusion and testing trends can be in some tension. The test culture has given rise to criticisms that
individual competencies and school system accomplishments may not be measurable in a uniform way; that
testing can be subject to cultural biases; that testing leads to the organization of education around preexisting
standards and measures; and, most relevant here, that inequities can result from increased tracking through
testing.11 Test-related terms such as “underachievement,” “learning-disabled,” and “socially–emotionally
disabled,” while perhaps useful as means of defining eligibility for special academic services, serve to foment
exclusion.12 One theme of this chapter is that forensic evaluators can serve an important role in identifying
individualized ways to reconcile the parallel goals of offering an inclusive learning environment while adhering
to the school’s core curriculum.
Although we occasionally refer in this chapter to relevant provisions of the ADA and the Rehabilitation
Act, we focus on the IDEA, which establishes the template for evaluations of disability in the education
context. Furthermore, consistent with this book’s overall focus on forensic assessment, we focus here on
individual rather than systemic evaluations.

17.02. THE IMPETUS FOR THE IDEA

CASE STUDY 17.1

Bob, a 13-year-old student, has become socially withdrawn in the last year. Despite repeated efforts at tutoring and counseling, his grades
have declined steadily; he has started to skip school; and when the teacher calls upon him in class, he responds tersely or not at all. Most
recently, he pushed over a desk and stalked out of the room when disciplined by the teacher. The teacher is worried that he may have an
emotional disorder. She has made a referral to the special education department.

Questions: If you were called upon as a consultant, how would you conduct an evaluation of Bob? What legal strictures might be placed
on your evaluation? What would the objectives of such an evaluation be? Is the client the student or the school system? Would your
recommendations focus on learning, achievement, social development, emotional well-being, cultural and school climate adaptations, or
some combination? Should recommendations be limited to school-based programs and resources, or should they include opportunities

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available in the wider community? Does the role of evaluation include advocacy? If so, what forms of advocacy are appropriate?

In the preamble to the 1975 Act, Congress stated that there were “more than eight million handicapped
children in the United States,” over half of whom were not receiving an appropriate education, and more than
one million of whom were excluded from the public school system entirely.13 Congress went on to conclude
that it is “in the national interest . . . to provide programs to meet the educational needs of handicapped
children.”14 Behind this rather conclusory pronouncement lay at least three related influences. The first was
clear evidence that many of the institutions in which children with disabilities were then being housed were
abominations. Hearings before the United States Senate featured professionals, parents, and children
describing overcrowding, lack of staff, and inadequate treatment, as well as abuse.15 Complementing the
desire to provide alternatives to these institutions was research suggesting that children with disabilities could
benefit from education,16 thus weakening any arguments against educating such children. This research, along
with other studies showing that testing designed to determine educational abilities was often racially
discriminatory,17 also suggested an analogy between children with disabilities and once powerless minority
groups that had since benefited from federal legislation.18
A final influence on Congress was the more general push to “mainstream” into the community all those
with mental disabilities, even if the benefit was unclear. This “community-first” movement was premised on
several assumptions: (1) that treatment in the community is less of a deprivation of liberty than placement in a
segregated institution; (2) that integrated treatment, habilitation, and education within the community are at
least as effective as institutional services; (3) that community-oriented services place persons with disabilities
closer to the family and friends who provide emotional sustenance; (4) that community programs give persons
with disabilities practice and “role models” in dealing with the rest of the world; and (5) that exposure of the
community to people with disabilities will reduce stigma.19 By fostering education in the “least restrictive
alternative” within the public school system, the IDEA was meant to accommodate these various goals.
The IDEA was also preceded by important case law that laid the groundwork for the legislation. The
impact of Brown v. Board of Education20 has already been noted: By overturning the “separate but equal”
standard in cases involving race segregation in public schools, that case provided an important precedent for
an integrated public education for all students. Two more critical cases in the early 1970s, Pennsylvania
Association for Retarded Children (P.A.R.C.) v. Commonwealth of Pennsylvania21 and Mills v. Board of
Education,22 struck down local laws excluding millions of children with disabilities from schools and
established that children with disabilities have the right to a public education. In P.A.R.C., a federal district
court, relying in part on Brown, approved a consent decree enjoining Pennsylvania from denying public school
admission to children (up to age 21) with developmental disabilities, or from changing a student’s educational
status without notification and an opportunity for a due process hearing. Mills expanded the impact of
P.A.R.C. to children with alleged mental, behavioral, physical or emotional disabilities, and precluded the
District of Columbia government and school system from using insufficient financial resources as an excuse to
deny education to such children. Other federal cases followed suit,23 including, at the Supreme Court level,
Youngberg v. Romeo,24 which held that deliberate indifference to serious treatment needs of institutionalized
individuals with disabilities constituted a violation of the Eighth Amendment.
However, Youngberg at best imposed a low floor on the states in terms of habilitation obligations, and

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other federal cases did not apply nationwide or were unevenly enforced. Congress concluded that a federal
statutory requirement was necessary. The IDEA, the ADA, and the Rehabilitation Act accelerated
deinstitutionalization for children. Even with the advent of these statutes, however, children with mental
disabilities can be bounced among juvenile correctional facilities, residential treatment agencies, and more
traditional general and state hospital psychiatric units for children and adolescents. Many children with
mental disabilities tend to be clients of several systems (e.g., child and family welfare services, juvenile justice
services, educational systems, developmental disability services), without continuity of care and sometimes
without a lead agency.25 This background should be kept in mind in evaluating and advocating for education
opportunities for children.

17.03. THE STRUCTURE OF THE IDEA

As the United States Supreme Court stated in Honig v. Doe,26 the IDEA “confers upon disabled students an
enforceable substantive right to public education in participating States . . . and conditions federal financial
assistance upon States’ compliance with substantive and procedural goals of the Act.” The IDEA is
implemented through provision of federal funds to those states that agree to abide by its essential provisions
(by 1995, all 50 states had so agreed). The U.S. Department of Education, through the Office of Special
Education Programs (OSEP), monitors the states’ use of federal funding. Where it finds gross
noncompliance, OSEP has the authority to withhold funds, although it typically does not do so because of
political pressure from Congress. States are also required to monitor IDEA compliance by local school
districts. Unfortunately, monitoring resources typically are stretched thin, and visits may occur as infrequently
as every five to seven years.
Under these circumstances, individual evaluations can play a particularly significant role in ensuring that
the goals of the IDEA are met. Thus evaluators need to understand both the substantive and procedural
aspects of the IDEA.

(a) Substantive Coverage

The IDEA guarantees, up to the age of 22, any individual who has a “disability” a “free appropriate public
education,” as well as “related services,” in the “least restrictive environment.” Over time, these phrases have
become terms of art in special education.

(1) Disability

The original Act was based on a 1972 Massachusetts statute designed “to assure the maximum possible
development” of “children with special needs.”27 Describing this law as “the . . . most comprehensive law
regulating special education in the nation at the time,”28 Gordon pointed out that the population
encompassed by the Massachusetts act was quite broad, consisting of “any child who, for a variety of reasons is
‘unable to progress effectively in a regular education program . . . ‘”29 Thus the act did not hinge on any
particular diagnosis and implicitly envisioned an individualized approach to education.

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 In contrast to the Massachusetts statute, the IDEA has focused on “children with disabilities.” The original
federal statute referred to “handicapped children.” In 1990, along with changing the statute’s name to the
Individuals with Disabilities Education Act, Congress replaced statutory references to “handicapped children”
with the term “children with disabilities.” Under the Act as amended in 2004, children with the following
disabilities are covered if “by reason thereof” they require “special education and related services”:

mental retardation, hearing impairments (including deafness), speech or language impairment, visual impairments (including blindness),
serious emotional disturbance, . . . orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning
disabilities.30

For purposes of the Act, “mental retardation” (now called “intellectual disability”) is defined as
“significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, that adversely affects a child’s educational
performance.”31 “Emotional disturbance” is defined in the federal regulations as a condition persisting “over a
long period of time and to a marked degree that adversely affects a child’s educational performance,” which is
characterized by (1) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (2)
an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (3)
inappropriate types of behavior or feelings under normal circumstances; (4) a general pervasive mood of
unhappiness or depression; or (5) a tendency to develop physical symptoms or fears associated with personal
or school problems.32
Historically, proof of learning difficulties that made one eligible under the Act consisted of a discrepancy
between IQ and achievement, whether the disability was intellectual or emotional. But today that model is
considered overly simplified and outdated, because it treated IQ as a static variable and ignored a variety of
neurobiological, cognitive, behavioral, psychosocial, sociocultural, and environmental factors associated with
learning difficulties.33 More recent conceptual models rely on a finding of disability, coupled with a finding
that a child has not made sufficient progress when provided with research-based educational interventions.34
Furthermore, multimethod approaches to both assessment and intervention are preferable, due to the weak
reliability and validity of any score or any single measure as a stand-alone indicator.35 The 2004 IDEA’s
“response-to-intervention” (RTI) approach recognizes these developments by permitting schools to use any
valid assessment approach that measures a student’s response to traditional interventions, and treats a poor
response as a valid indicator of a learning disability or disabilities.
Although both the IDEA’s language and the RTI approach extend educational rights to a wide variety of
children with disabilities, not all children with learning difficulties are necessarily covered. Learning problems
that result from “conduct disorders,” family dysfunction, or psychosocial stressors generally are not supposed
to form the basis for eligibility under the IDEA unless there is a comorbid emotional disability. Furthermore,
a child is not considered to have a disability for purposes of the Act if the “determinant factor” behind his or
her difficulties in learning is “lack of appropriate instruction in reading; . . . lack of instruction in math; or
limited English proficiency.”36 State and local regulations often elaborate on these somewhat vague
categorizations.

(2) Free Appropriate Public Education

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Congress defined “free appropriate public education” to mean “special education” and “related services” that
are provided at “public expense, under public supervision and direction,” conform with the standards of the
state educational agency, and “include an appropriate preschool, elementary school, or secondary school
education in the State involved.”37 Case law has clarified this definition over the years. Most significantly, in
Board of Education v. Rowley.38 the Supreme Court rejected the lower court’s definition of “free appropriate . .
. education” as “an opportunity to achieve full potential commensurate with the opportunity provided to other
children.”39 Rather, the Court held, the statute merely requires free “personalized instruction with sufficient
support services to permit the child to benefit educationally from that instruction.”40 According to the
majority in Rowley, the special education need not meet or try to meet the optimal potential of a child with
disabilities, or even provide resources sufficient to allow the child to reach a level proportionate to that reached
by other children. Rather, in the Court’s words, it need merely provide “some benefit” to the child.
Such a holding may seem narrow, but it reflects the reality of the school system. Traditionally, the public
schools have not been obligated to maximize the potential of nondisabled children, or even to ensure that they
reach a certain proportion of their potential. Thus requiring such goals for those with disabilities would
undermine the usual approach to education, which places students in grades according to general criteria such
as age and minimal performance, rather than individualizing the learning experience.41 In the 1997
amendments to the IDEA, Congress adopted Rowley’s definition.
However, it is important to recognize that Rowley does require some effort at providing meaningful
education. Thirty-five years after Rowley, the Supreme Court made this clear in Endrew F. ex rel Joseph F. v.
Douglas County School Dist. RE-1, where it stated that “[t]he IDEA demands more than [de minimis
progress]. It requires an educational program reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.”42 Some states have enacted statutes that go beyond this
standard by requiring that children with disabilities receive the same “educational opportunity” as children
without disabilities, which may mean that the former group must be provided with resources sufficient to
realize the same degree of their potential as is generally achieved by the latter group.43 While the Supreme
Court’s decision in Joseph F. declined to go that far in interpreting the federal IDEA,44 these state laws appear
to recognize that ideal educational practices involve individualized programs designed to maximize potential,
and that otherwise special education practices would be little more than an intensification of pre-IDEA
practice.

(3) Related Services

Children who are eligible to receive special education under the IDEA are also entitled to “related services.”
The IDEA includes under this rubric services “required to assist a child with a disability to benefit from
special education,” including “developmental, corrective, and other supportive services . . . psychological
services . . . therapeutic recreation, social work services, . . . rehabilitation counseling . . . and medical services”
(the latter to be provided “for diagnostic and evaluation purposes only”).45 In Irving Independent School
District v. Tatro,46 the Supreme Court interpreted this provision to require “only those services necessary to
aid a handicapped child to benefit from a special education.” Thus, for instance, whether psychological
services must be provided by the school district depends on whether they are “necessary” to allow the student

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to function in the classroom. Furthermore, the Court has intimated that those medical services requiring a
licensed physician—for instance, the administration of psychotropic medication—are not related services.47
At the same time, Tatro held that medical services that are “necessary” to provide an educational benefit and
can be provided by a school nurse must be made available, even if they go beyond providing a diagnostic or
evaluative function.48

(4) Least Restrictive Environment: Mainstreaming

A critical feature of the IDEA is its command to educate children who have disabilities with children who do
not. The original Education for All Handicapped Children Act stated that

special classes, separate schooling or other removal of handicapped children from the regular educational environment should occur only
when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be
achieved satisfactorily.49

Although this language was already relatively strong, the 1990 amendments to the Act again emphasized
“mainstreaming” as a priority.50 The drafters of the amendments probably were reacting to research showing
that at least three-quarters of the children covered by the Act were still being educated in separate classes.51 In
a study of one school district, for instance, only between 3 and 7% of the students with disabilities were
assigned to regular academic classes, with mainstreaming occurring only in such subjects as art, music, and
physical education.52 Although such resistance to mainstreaming might have stemmed from prejudice and
misunderstanding, it could also have been the result of good-faith concerns on the part of school districts that
placing children with disabilities in the classroom would disrupt both their education and the education of
nondisabled students.53
The courts have been sensitive to the tension between these concerns and the statute’s language to varying
degrees. The Supreme Court has not yet addressed the issue, but the lower courts have produced different
tests for deciding whether the school district has complied with the IDEA’s mainstreaming requirement,54
two of which are dominant. One test appears to lean toward favoring the school district’s recommendations,
whatever they may be, whereas the other seems more supportive of pro-mainstreaming decisions. The first
test was articulated by the Sixth Circuit in Roncker v. Walter,55 which involved a nine-year-old boy with
moderate intellectual disability. The school district sought to place him in a “segregated” county school
exclusively for children with intellectual disabilities, because it believed that he would not receive any benefit
from placement in a regular school. Although the parents agreed that their child could not be fully
mainstreamed, they challenged the school district’s recommendation because it provided no contact with the
child’s nondisabled peers.56 The Sixth Circuit articulated a two-prong test for determining whether the
mainstreaming requirement is met. The first question is whether the school district’s proposed placement is
“appropriate” under the Act, which merely requires, under Rowley, that the proposed placement provide “some
educational benefit” to the child with disabilities. If so, and if the school district’s proposal involves segregated
placement, the second question is “whether the services which make that placement superior could be feasibly
provided in a non-segregated setting.”57 Although the second prong appears to support a mainstreaming
argument, the court’s discussion of “feasibility” emphasized that some children must be segregated, because

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they will not benefit from mainstreaming, will receive better education with segregation, or will be disruptive
if mainstreamed. Furthermore, the court concluded that cost is a factor that may be considered, because
excessive spending on one child with a disability can deprive other children with disabilities of a free
appropriate public education.
The second test for determining whether mainstreaming is required was first articulated by the Fifth
Circuit in Daniel R.R. v. State Board of Education.58 The child in the Daniel case had Down’s syndrome. At
age six, his developmental age was between two and three years. The parents wanted him to spend half of
each school day in a segregated special education class and the other half day in a regular prekindergarten
class. School district officials initially agreed to the placement, but after a few months they decided that the
child required too much constant individual attention by the teacher and her aide, to the detriment of the
nondisabled students. Furthermore, they believed that the child was not benefiting from the regular classroom
placement. In resolving this case, the Fifth Circuit rejected the Roncker test and instead adopted its own two-
prong test. According to the Daniel test, the court must first determine whether education in a regular
classroom, with supplemental aids and services, can be achieved satisfactorily. If so, the school district must
mainstream the child in the regular classroom. If not, the school district may place the child in special classes
or remove the child from regular education. Even in the latter situation, however, the school district must still
mainstream the child to the maximum extent appropriate.
This test appears on its face to be more supportive of mainstreaming than the Roncker formulation,
because it starts from a presumption in favor of mainstreaming, whereas the latter test effectively puts the
burden on the plaintiff to show that a segregated placement is inappropriate. Whether there is in fact a
significant difference between the two tests is an open question. For instance, in construing the first prong of
Daniel’s test (as to whether a child can be educated satisfactorily in a regular classroom), a subsequent decision
by another circuit held that school boards may consider the comparative benefits of mainstreaming versus
separating the child, the effect of the child on the education of other children in the classroom, and the costs
of the supplemental aids and services necessary to accommodate the mainstreamed child.59
As an apt summary of how ambiguous the mainstreaming requirement is, consider this paragraph from a
2011 case:

Only if a child’s disability is so severe that a regular education, even when supplemented by supports and services, will not produce
satisfactory results may the child be educated in a special education classroom, home, hospital, institution, or other segregated setting.
“[E]ven in cases in which mainstreaming is not a feasible alternative,’ the statutory preference for a least restrictive placement applies.”
Moreover, “a determination that a child with disabilities might make greater academic progress in a segregated, special education class may
not warrant excluding that child from a regular classroom environment.” On the other hand, “it is not enough to show that a student is
obtaining some benefit, no matter how minimal, at the mainstream school in order to prove” that a regular education setting constitutes the
student’s least restrictive environment. “Under the Act, where the nature or severity of the handicap is such that education in regular classes
cannot be achieved satisfactorily, mainstreaming is inappropriate.”60

Statistics from 2013 indicate the extent to which the mainstreaming experiment has worked. Among
students ages 6–21, 87.1% of those with speech and language impairments were placed in a regular education
classroom 80% or more of the day, followed by 40.2% of those with multiple disabilities and 29.5% of deaf–
blind students. Of the students with intellectual disabilities, only 16.7% were in a regular classroom.61

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 (b) Procedures under the Act

The IDEA creates a several-stage process for deciding whether it applies. It begins with identifying children
who may have disabilities, proceeds with developing an education program for those who are so identified,
and establishes several mechanisms for reviewing the children’s educational progress. The essential elements
of this process are described below.

(1) Identification of Children with Disabilities

Under the IDEA, a participating state and each of its local education agencies (LEAs) must identify, locate,
and evaluate “all children residing in the state who are handicapped, regardless of the severity of their
handicap, and who are in need of special education and related services.”62 If a child has been identified as
having a potential disability, “Written prior notice [must be provided] to the parents of the child . . . whenever
the local educational agency proposes . . . or refuses to initiate or change, the identification, evaluation, or
educational placement of the child, or the provision of a free appropriate public education to the child.”63 In
addition, each state must ensure that LEA personnel, as well as parents and volunteers, receive training that
will assist them in identifying and evaluating children with special educational needs.64

(2) Evaluation of the Child: The Individualized Education Program

Once identified, each child is evaluated by a “multidisciplinary team,” which must include at least one teacher
or specialist with knowledge of the area of the child’s suspected disability (e.g., an occupational or physical
therapist, medical specialist, or school psychologist), as well as the child’s teacher or potential teacher, the
child’s parents or guardians, and “whenever appropriate,” the child.65 Parents were included on the committee
to act as a check on administrators and professionals who might overlook a child’s special needs. But they
often do not take advantage of this opportunity; even when they do, they may not recognize when a school is
noncompliant (many such parents have low incomes and are poorly educated66), or they may be ignored by
the rest of the team.67 Moreover, notwithstanding statutory language that has become increasingly insistent
that the students themselves be involved in the planning process, such involvement seems to have increased
very little,68 even in the face of evidence that it can be effective.69
The primary objective of the team and the evaluation is to develop for each child an individualized
education program (IEP) (formerly known as an individualized education plan). The 2004 reauthorization of
the IDEA made several key changes to the IEP and evaluation process. First, in order to reduce
administrative costs, reevaluations for IEPs are to occur at most only once a year, unless the parties agree
otherwise.70 Second, in an effort to bring the IDEA in line with the results-oriented provisions of the No
Child Left Behind Act of 2001,71 annual goals must now be “measurable” and include evaluative criteria,72
meaning that standardized testing plays a significant role in determining a student’s progress.73 In order to
determine how well a particular district and state are educating children in their charge, the annual yearly
progress of children with disabilities as a group must also be measured, which will again usually be carried out
through standardized tests.74 States are permitted to develop alternative methods of evaluating progress, but
the number of students who may be so evaluated in each state is capped at 1% unless an exemption to that

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limit is obtained.75 To accomplish the group testing goal, the IEP must now include “a statement of any
individual appropriate accommodations that are necessary to measure the academic achievement and
functional performance of the child on State and district wide assessments.”76
Thus an IEP must include sections on (1) the child’s present level of educational performance; (2)
measurable annual goals; (3) the special education and related services to be provided to the child; (4) the
extent, if any, to which the child will not participate with nondisabled children in the regular classroom; (5)
any individual modifications in the administration of assessments that are needed for the child to participate
in an assessment; (6) the projected date for the beginning of the services and modification, and the frequency,
location, and duration of those services and modifications; (7) needed transition services at applicable ages;
and (8) the way(s) in which the child’s progress toward the annual goals will be measured. In practice, the IEP
typically includes the following:

A description of the child’s disability.

A description of the child’s strengths and present levels of academic and functional achievement.
Annual educational and functional goals and criteria (including benchmarks and short-term objectives) for
measuring the child’s attainment of the goals.
Any program modifications and supports needed (e.g., modifications to educational content, lowered
success criteria, increased emphasis on functional skills, or decreased reliance on state assessments).
Any accommodations needed (e.g., alternative ways of demonstrating what the child has learned;
preferential seating; extended time for tests and assignments; access to word processing; shortened school
day).
Any special education services and aids needed (e.g., assistive technology; teaching aides; direct and
consultative services of specialists; transportation arrangements77).
Least-restrictive-environment data delineating how much time is spent in regular versus special education
settings, as well as a justification of any time the child does not participate alongside children without
disabilities.

When the student reaches age 16, the IEP must also contain a transition plan delineating postsecondary goals.
As this last requirement indicates, the call for evaluations does not end when an adolescent’s high school
education is completed. The IDEA does not extend to the college years, but under the ADA, college students
with disabilities may also request “reasonable accommodations.” In postsecondary settings, reasonable
accommodations may include curriculum modifications, testing accommodations, assistive technologies, and
special academic counseling.78 In order to qualify for services at the college level, a student typically must
produce evidence of a learning disability or other relevant condition, evidence that the disability historically
has interfered with learning, and evidence that it is likely to continue interfering with learning. Simply
providing evidence of a diagnosis is insufficient. The student must also provide documentation in the form of
an evaluation report, along with recommendations for accommodations. Standards for classifying
postsecondary students as having learning disabilities are less clear, but suggestions on this score have been
made, based upon prevalence rates and group characteristics.79
Federal law has also extended education services backward through infancy. The original Act covered only

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children between the ages of 6 and 21.80 In 1986, the Act was amended to extend coverage to children below
the age of 6 with disabilities, developmental delays, or risk for delays. Definitions for children at risk of delays
are left to the discretion of the states. For these children, participating states must set up a system of early
intervention, including family counseling, home visits, and diagnostic and evaluative medical and
rehabilitative services. The state must also develop an individualized family service plan (IFSP), which is
similar to an IEP but focuses more on the needs of the family as a whole than on the individual child.81
The evaluation that produces the IEP or IFSP must conform to certain specifications. As already
mentioned, the evaluation must be performed by a “multidisciplinary team.” Furthermore, evaluation
materials and procedures must be selected and administered so as to avoid racial or cultural discrimination;
thus, for instance, procedures must be administered in the child’s native language, unless it clearly is not
feasible to do so.82 Finally, no single procedure can be the sole criterion for determining an appropriate
educational program for the child;83 the IDEA specifically provides that intelligence tests may not form the
only basis for an evaluation.84 As Clune and Pelt have noted, “[p]lacement decisions should not be based on
tests alone, but should include at least one other evaluation source, such as a teacher’s observation of the
child’s classroom performance.”85
Thus a model evaluation—whether at the preschool, elementary, secondary, or postsecondary level—would
typically involve a variety of indicators tailored to specific referral questions. Those referral questions should
focus on the hypothesized learning needs of the student (including school-based social-emotional and other
school-based needs), impediments (either academic or functional) that are interfering with learning, and the
interventions that can best ameliorate learning problems. The evaluation should describe the student in the
context of the learning and social environment, and should go well beyond a simple reiteration of
measurement scores.

(3) Review Procedures

There are several layers of review of the identification and evaluation processes. First, if the parents are
dissatisfied with the evaluation, they can ask for an independent educational evaluation (IEE).86 Those
evaluations tend to be performed by specialist evaluators who are unaffiliated with the school system. The
school can either pay for this evaluation or request a hearing from the LEA as to the adequacy of its initial
evaluation. If it chooses the hearing and loses, it must pay for an IEE. If it wins, the parents can still obtain an
IEE at their own expense.87 This administrative procedure was designed to place “more systematic pressure
on school systems, put handicapped children on an educational par with nonhandicapped students, and lead
to uniformity of treatment among handicapped children.”88
Although normal trial rules do not apply at these hearings, parents can be represented by counsel, and have
the right to present evidence, confront witnesses, and obtain findings of fact; all of this means that the
findings of the experts can be brought under intensive scrutiny. If the administrative process finds against
them, parents are entitled to take the issue to the courts, and are awarded attorney’s fees if they prevail.89
Finally, even if the parties agree on the IEP, the child must be reevaluated at least once every three years and
as often as once a year, unless the parties together decide otherwise.90 The Families and Advocates
Partnership for Education and various other organizations have produced useful summaries of procedural

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issues under the IDEA.91

(4) Disciplinary Procedures

If a child with a disability is placed in a regular classroom, is the child governed by the school’s discipline
code? More specifically, if a disciplinary sanction conflicts with the IEP, how is the conflict to be resolved?92
To answer this question, school personnel must have a good grasp of the differences between discipline and
intervention, and of situations when each is indicated. If a student’s misconduct is the result of a disability or
the school’s failure to implement the IEP, the school may not subject the student to the typical disciplinary
procedure, but instead in most cases must restructure the IEP to ensure that student stays in school. Three
Supreme Court cases set the stage for this regime.
The first two cases deal with minimum procedures in any disciplinary case. Wood v. Strickland93 held that
education is “a right of property and liberty,” and thus is protected by the Fourteenth Amendment’s
prohibition against depriving people of life, liberty, or property “without due process of law.” Accordingly, “a
student who is to be expelled and deprived of an education, albeit temporarily, must be accorded due process.”
Goss v. Lopez94 elaborated on the specific requirements of due process in this context by holding that
“suspension,” limited to ten days, may only be imposed after the student is given an oral or written notice of
the charges, an explanation of the evidence that the authorities have, and an opportunity to present his or her
side of the story. When expulsion (i.e., suspension of more than ten days) is involved, the student is entitled to
an opportunity to secure counsel; the right to call, confront, and cross-examine witnesses; and the right to
have the case heard by an impartial hearing officer. Finally, when the suspended individual poses a threat to
persons, property, or the education of others, the person may be immediately removed, but notice and an
informal hearing should follow as soon as practicable.
Against the backdrop of these cases, the Supreme Court decided Honig v. Doe,95 involving disciplinary
action against two children with disabilities. One child was involved in a physical assault; the other was
allegedly engaged in extortion. In both cases, the school districts first temporarily suspended the children,
then proposed to exclude them permanently and extended the suspension pending the expulsion proceedings.
The lower courts held that these latter actions violated the IDEA—specifically, the provision requiring a
school district to keep the child in his or her current placement, pending review of its decisions on changes in
placement (the “stay put” provision).96 The Supreme Court agreed with this finding. It held that schools may
use normal disciplinary procedures in temporarily suspending a student with disability for up to ten days, and
that longer removal of a student can be accomplished when the district and the parents can agree on an
interim placement, pending a review of the student’s placement. In the absence of parental consent, however,
the school district seeking (long-term) expulsion and new placement must convince a court that the child’s
present placement is inappropriate under the child’s IEP. In the meantime, the child is to remain in the
school. According to the Court, the “stay put” provision “effectively creates a presumption in favor of the
child’s current placement, which school officials can overcome only by showing that maintaining the child in
his or her current placement is substantially likely to result in injury to either the child or others.”97
As a result of the latter holding, which contemplates a full court hearing and a finding of dangerousness,
students with disabilities may be accorded more due process than other students before they can be

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permanently removed from the school system. That fact triggered contentious debates in Congress during the
IDEA’s reauthorizations in both 1997 and 2004. For cases where the discipline involves a suspension for
fewer than ten days, Congress ended up retaining the more relaxed procedures, “to the extent [that] such
alternatives are applied to children without disabilities”98 or is the result of conduct “that is determined not to
be a manifestation of the child’s disability.”99 For longer suspension based on disability-related conduct, the
IEP team is to conduct a “functional behavioral assessment and implement a behavioral intervention plan,” or,
if there is already such a plan, to determine whether modification of it is necessary.100 Furthermore, where the
child “has inflicted serious bodily injury upon another person,” the school “may remove a student to an interim
alternative educational setting [i.e., ignore the ‘stay put’ provision] for not more than 45 school days without
regard to whether the behavior is determined to be a manifestation of the child’s disability.”101 Ellis and
Geller conclude that, whatever procedures are in place, administrators should remain “in close contact with
the group of people responsible for the student receiving an appropriate education,” in an effort to establish a
code of behavior that is fair to both disabled and nondisabled students.102

17.04. CLINICAL EVALUATION UNDER THE ACT

To understand the scope of clinical evaluation under the IDEA, consider these statistics from 2013.103 In that
year, 339,071 infants and toddlers through age 2 were served under the IDEA, 88.7% of whom received early
intervention services primarily in the home, and 6.9% of whom received early intervention services in a
community-based setting; 745,336 children ages 3–5 received IDEA services, with the most common
disabilities being speech or language impairments (44.2%), developmental delay (37.1%), and autism (8.4%);
and 5,847,624 students ages 6–21 were served under the IDEA, most commonly for specific learning
disabilities (39.5%), speech or language impairments (17.9%), other health impairments (13.8%), autism
(8.2%), intellectual disabilities (7.1%), and emotional disturbances (6.0%).104
These statistics make it clear that an evaluator trained to evaluate and diagnose only a small range of
disorders will face significant challenges in appropriately identifying relevant conditions and functional
capacities, describing the impact of those conditions on learning, and making recommendations that are
germane to adaptations to a school environment. Evaluators must have broad clinical training that includes
developmental sophistication, sociocultural–emotional competencies, and an understanding of learning
strategies for children with sensory and motor impairments. Because of the nuances involved, interpreters
should be used only when evaluators with the relevant skills are unavailable.
In addition to these clinical skills, IEP evaluations require the evaluator to be familiar with the “difference
dilemma.”105 Federal law such as the IDEA and the ADA clearly adopt the goal of combatting discrimination
based on disability. But in identifying special-needs differences in an effort to combat discrimination,
evaluators must also be careful to avoid contributing to the stigma and implicit or explicit exclusion that
results from highlighting differences. The challenge for an IEP evaluator is to characterize the child in a
manner that facilitates inclusion through recommendations that help the community embrace the child, rather
than tempt it to reduce the student to marginalizing numbers, test scores, or diagnostic conditions.106
With these background considerations firmly in mind, the typical evaluation under the IDEA should
address several issues: (1) Does the child have one of the listed disabilities that requires special educational

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efforts? (2) If so, does that disability adversely affect the child’s capacity to make sufficient academic progress?
(3) If so, what would be an appropriate education (i.e., what instructional methods, goals, behavioral strategies
and accommodations would provide benefit to the child by promoting educational progress)? (4) What related
services are necessary to ensure that this education occurs? (5) What is the least restrictive setting in which
this education can be delivered? Note further that the evaluation is not intended merely to uncover deficits.
The student’s strengths should be highlighted, so that methods of instruction and forms of service delivery are
designed to utilize his or her skills and abilities.
Answering these types of questions involves a wide-ranging assessment. In any case involving a specific
learning disability, the process also requires additional team members, classroom observations, a special
written report, and a specific finding that the child’s disability is not in fact another type of (noncovered)
disability.107 Additionally, regulations mandate that assessment measures and other evaluation materials be
validated for the specific purpose for which they are used and administered by a person trained to do so.108
In short, an evaluation under the IDEA should include assessment of relevant specific skills areas,
comprehensive information gathering, and appropriate testing. These three components of the evaluation are
discussed below, followed by suggestions about reports and testimony called for by the IDEA.109

(a) Specific Skills to Assess

Generally, the evaluator should consider assessing at least five traits or skills in any evaluation under the
IDEA. The most obvious evaluation focus is intelligence. As noted previously and discussed further below,
the IDEA makes it clear that this trait cannot be assessed solely by a standardized test, and that if such a test
is used it must be appropriately normed and meaningfully interpreted. A second area requiring assessment is
that of language and communication skills. These skills can also be evaluated with various standardized tests,
such as achievement tests. Again, however, such tests may not be sensitive to everyday communication
problems, which are better explored through direct conversation with the child, observations of the child in
the context of his or her communication with teachers and peers, and data collection concerning alternative or
augmented communication strategies. Third, perceptual and executive function abilities—visual–spatial,
psychomotor, and phonological processing; metacognition, planning, and organization; memory skills;
attention and concentration skills; and the capacity to use technological aids—should be examined via
assessment measures or interviews. Fourth, academic achievement in the areas of reading, writing, and
mathematics needs to be examined, but again without overreliance on single score indicators. Finally,
behavioral and emotional needs—including developmental and sociocultural considerations, motivation,
tolerance for cooperative or other forms of group learning, and self-regulation—should be assessed via the
usual techniques, with an emphasis on ecological validity.
More specific examples of referral questions that might be germane to the development of an IEP include
the following:

In what physical environment does the child learn best?

What is useful, debilitating, or neutral about the way the child approaches the task?
Can the student hold multiple pieces of information in memory and then act upon them?
How does increasing or slowing the speed of instruction affect the child’s accuracy?
What processing mechanisms are being taxed in any given task?

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 How does this student interact with a certain teacher style?
With whom has the child been successful? What about the person seems to have contributed to the child’s success?
What is encouraging to the child? What is discouraging?
How does manipulating the mode of teaching (e.g., visual or auditory presentation) affect the child’s performance?
How does transitioning between environments affect the child?
What organizational capabilities does the child need to function in a particular classroom environment?110

In light of the provisions under the 2004 IDEA reauthorization enactment denying eligibility to children
whose learning difficulties are primarily associated with lack of instruction (and implementing regulations
requiring data showing that attempts at appropriate instruction in a regular education setting from qualified
personnel have been made),111 a final question that should be answered is whether and how the child has
responded to instructional strategies known to be effective for struggling students. If the child has responded
positively to such strategies, he or she may not be covered by the IDEA. For instance, a student may have a
disability that affects attention, organizational capacities, patience when working in groups, and frustration
tolerance. But if a teacher has developed classroom-based techniques that are effective for that student, and if
the student is completing assignments and earning passing grades, the disability may not be covered by the
IDEA. If, by contrast, the student’s grades are declining, the student’s frustration is increasing, the student’s
symptoms are interfering with attention and concentration, the student is not keeping pace in completing
assignments, and the teacher has exhausted his or her repertoire of typical strategies, the IDEA may be
relevant.

(b) Information Gathering

Given the wide-ranging nature of the skills to be assessed, several sources of information may be important to
an evaluation under the IDEA. One such source is school records, if they exist. These records might describe
changes in behavior, attendance, or grades that help identify emotional problems. At the same time, it should
be remembered that most students experience difficulties at particular times in their educational careers; for
instance, changes in class performance may merely stem from beginning middle school, which is often
accompanied by differences in length and intensity of assignments.
A second source of information is student work, both on paper and in the classroom. Many teachers
maintain portfolios for each student, which can be skimmed by the evaluator. More importantly, observation
of the student in the classroom is crucial to most evaluations. Such observations should occur at different
times and in different classes. If monitoring certain behaviors, the observer may keep a log of occurrences,
look for specific behavioral events and tally their frequency, or use checklists or rating scales developed for the
purpose.112 More generally, it is important to study the student’s “ecology,” a construct to which we have
referred in previous chapters [see, e.g., § 14.06, which provides a discussion in the context of delinquency
evaluations that is very relevant here]. Briefly, ecologically valid assessments take account of the various
systems with which a particular child may interact. Disruptions in family life, social functioning, and intimate
relationships, among others, can profoundly affect academic performance and other functional domains.
Wallace, Larsen, and Elksinin state: “An evaluation that fails to consider a student’s ecology as a potential
causative factor in reported academic or behavioral disorders may be ignoring the very elements that require
modification before we can realistically expect changes in that student’s behavior.”113

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 Of course, interviewing the relevant parties is crucial (indeed, as noted earlier, involving the parents in the
evaluation process is required by law). Teachers and parents should probably be consulted before the child is
interviewed. Hoy and Gregg suggest that the viewpoints of these various individuals be compared in a number
of domains, including (1) perception of the primary learning deficits, their intensity and chronicity, and their
apparent causes; (2) the attempts that have been made to solve or address the problem; (3) recent changes in
the problem’s severity; and (4) the student’s strengths and weaknesses.114 To that list, we would add questions
concerning (5) learning patterns and academic progress in small-group versus large-group contexts; (6) types
of assignments that are completed and types that are avoided or not completed; (7) types of accommodations
or other helping strategies that have proved successful (and on what types of assignments); (8) whether the
child takes advantage of in-school helping resources (and if not, why not); (9) temporal or contextual
differences in the capacity for input (listening, observing, concentrating) and output (writing, speaking in
class, cooperating on group assignments) across the course of a typical school day and in other environments
or cultural settings; (10) occasions when anxiety in the setting of learning is most problematic and when it is
least problematic; (11) circumstances under which tardiness, nonattendance, leaving class, or leaving school
tends to occur; (12) the child’s social integration into the school environment and its relevance, if any, to
learning difficulties; (13) the child’s capacity for transitions and changes throughout the school day; (14) the
child’s capacity to cope with distractions during the school day; and (15) any transportation issues that
interfere with the child’s capacity to settle into the school day (e.g., problems on the bus, lengthy commutes).
Interviews with the child can be conducted in a number of different ways, times, and places. The child can
be asked about the effects of mental health symptoms during the school day, to determine his or her capacity
for self-reporting and self-reflection, as well as the type of mental health treatment that might be most
suitable within and outside school. The child can also be asked to complete particular tasks, on either a whole-
problem or a step-by-step basis, and to describe what he or she likes about teachers perceived as effective and
why. Social situations can be observed and discussed to discern those the child considers most challenging and
least challenging. Of course, the perspective students provide may be limited. For instance, children may be
fearful of their safety in ways that they have difficulty articulating, because safety concerns are such a part of
the social fabric of their lives that they lack the vocabulary for comparison and contrast. An evaluator should
strive to create an environment of sharing and conversation, but should be aware that developmental and
social considerations may make it challenging for the child to describe his or her learning difficulties.115

(c) Testing and Assessment

Testing may be more useful in this context than in many of the other situations described in this book,
because the forensic issue centers on present functioning (rather than past or future functioning) and requires
an assessment of specific skills that such tests can often provide. In addition, as noted above, the 2004
modifications to the IDEA require standardized testing as a way of measuring annual yearly progress for the
district as a whole (unless the district receives an exemption). They also require that the student’s annual
progress under the IEP be measurable, which may also call for testing.
However, several caveats about testing are in order. First, many educators rightly object to standardized
tests that are not normed for the target population—a concern that, as noted previously, has found its way

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into the regulations implementing the IDEA. Second, obtaining “correct” answers on some tests requires
specific culturally based knowledge to which some members of society are not privy.116 Third, school officials
and clinicians unwittingly fall into the habit of concluding that a child has improved if single scores improve.
Fourth, educators and evaluators sometimes fall prey to the temptation to “teach to the test,” rather than
educating the child and evaluating progress based upon multiple indices and constructs.117
More specific caveats about intelligence testing in particular must be recognized, because evaluators may
tend to overuse such tests in this setting. A first concern is the variability of intellectual scores across
childhood due to comorbid mental health concerns and learning disabilities.118 Comorbid associations can
drag down intellectual scores (and achievement scores) when a child is in a florid symptomatic phase of a
mental disorder or is under a significant amount of stress for non-mental-health-related reasons. Second, the
ecological validity of intellectual scales (and achievement scales) may be suspect. These tests contain a variety
of discrete items that are administered in an individual setting. By contrast, the school day typically takes place
in a busy group setting, and assignments gradually become lengthier and more complex over the course of a
child’s education. A typical day might include a long-term assignment, a field trip, a group learning activity
requiring cooperation and concentration, or a complex assignment that taps into a variety of integrated skill
sets. The neurodevelopmental maturation needed to master those tasks is greater than the sum of the linear
progression of intellectual, literacy, or math skills.119 Thus reliance upon cutoff scores or score discrepancies as
indicators of learning difficulties falls short of capturing the necessary data to describe a child’s learning
strengths and weaknesses.
Thus, whether they are designed to help develop the IEP or are meant to evaluate the child’s progress
under it, measures must be carefully selected and their inclusion must be justifiable. The skill areas to be
assessed, the similarity between a test’s tasks and classroom tasks, the reliability and the validity of the test,
and (when the test is norm-referenced) the norm group’s resemblance to the student are all important
considerations. Even when these and other factors are taken into account, testing may be better at identifying
deficits than at providing information relevant to instructional strategies. As one review put it, parents and
teachers are often frustrated by “assessment . . . information that more or less states, ‘The student is having
problems.’ ”120 Ultimately, the IDEA requires intervention as prescribed by an educational plan, not just a
diagnosis. RTI, not response to a single test score, is the measure of progress.

(d) Report and Testimony

Clinicians, parents, and lawyers should be aware that the United States Department of Education has
developed model forms to be used in these evaluations; the clinician should consult these before conducting an
evaluation and preparing a report.121 With that caveat, the report and testimony should, at a minimum,
address the five questions raised by the IDEA. The first issue, whether the child has a disability, will depend
on whether the child is diagnosable with one of the disorders identified in the IDEA. The “free appropriate
public education” issue is even more amorphous, because legally it merely requires a plan that provides the
child with “some benefit” or “satisfactory progress.” Perhaps the best approach is to identify the best possible
educational plan and then indicate variations of this plan that are feasible and will still promote progress.
Similarly, defining “related services” and which of these are “necessary” to make the educational plan work is

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probably best accomplished through identifying the ideal situation and backup plans. Addressing the issues of
“free appropriate public education” and “related services” may make clear whether education in a regular
classroom will work, but this point too needs to be specifically addressed, given the Act’s preference for
mainstreaming. Finally, given Honig, the clinician or multidisciplinary team should address the extent to
which education in the classroom will be disruptive or dangerous to other students.
It would no doubt be tempting, after a comprehensive evaluation such as that described above, to
pronounce in the evaluation report that the child has (or does not have) a “disability,” and if a disability is
present, that the child “needs” a particular type of education, that a given array of services is “necessary” to
ensure the education will take place, and that the educational and related services can (or cannot) be
“satisfactorily” provided in the regular classroom. Indeed, it is likely that schools and parents will exert
considerable pressure on the evaluation team to produce just such a report. Thus our usual injunction against
giving into the lure of ultimate-issue conclusions is important here as well. If such conclusory language is
considered important (perhaps because local regulations demand it), it should only be used after the
evaluation’s results, and alternative interpretations of those results, are canvassed. Phrases such as “some
benefit,” “necessary,” and “satisfactory” are legal terms susceptible to multiple interpretations, and the clinician
should not pretend that he or she knows or is an arbiter for what they mean.
Instead, a strong report should cover the child’s history of success and lack thereof in school; parental and
referral source descriptions of the child’s strengths and weaknesses; relevant historical data related to health
and mental health; a summary of previous evaluation data and conclusions; diagnoses; the evaluator’s
perception of learning strengths and weaknesses; social and emotional challenges to learning; behavior
patterns; resilience and coping resources; core cognitive processes; behavioral and psychosocial factors
(attention, organization, emotional control, motivation, attitudes); environmental factors (socioeconomic
issues, housing stability, school climate, available interventions/resources); sociocultural challenges to school
adaptation (English as a second language, immigration status, acculturation/assimilation); and a narrative
summary (not just a distillation of scores and computer interpretations) of domains of learning and memory
that might be challenging for the child.
The report should end with meaningful recommendations (instructional strategies, accommodations that
might be needed, access to services, ancillary services) that provide a menu of options for educators. These
recommendations should conceptualize learning problems as an issue of adaptation in an educational and
social context, rather than a set of discrete deficits in need of repair. Learning takes place in the context of a
developmental course, and children and adolescents may be more distressed by learning challenges in some
settings or time frames than in others. Children can be protected from risks and exclusion by the social
context, primary support figures, other key adults, personal qualities (e.g., perseverance and other
nonacademic skills), and self-knowledge of strengths and weaknesses.122

17.05. CONCLUSION

Modern public education, bolstered by federal statutes, emphasizes educating all students in as inclusive a
setting as possible, with adequate support and accommodations, and treatment services where indicated. In
this setting, the clinician can serve the unique role of synthesizing the available data, assisting in the

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development of an integrated and systematic approach to a child’s education, and helping assess the societal
impact that educating each disabled individual can achieve. But to carry out this role, clinicians must commit
to acquiring a broad base of knowledge that encompasses clinical, neuropsychological, educational, public
policy, and case law content and updates, and must develop experience with complex and comorbid disorders
and multimodal methods of assessment. They should also be able to work with parents, school officials, and
educational advocates in striving for the right balance of advocacy and objectivity. Finally, they should
constantly be sensitive to the overall goal of integrating students in a way that facilitates learning.

BIBLIOGRAPHY

IDA SUE BARON, NEUROPSYCHOLOGICAL EVALUATION OF THE CHILD (2004).

BARBARA BATEMAN & MARY ANNE LINDEN, BETTER IEPS. HOW TO DEVELOP LEGALLY CORRECT AND EDUCATIONALLY USEFUL
PROGRAMS (4th ed. 2006).
Board of Education v. Rowley, 458 U.S. 176 (1982).
JACK M. FLETCHER, G. REID LYON, LYNN S. FUCHS & MARCIA A. BARNES, LEARNING DISABILITIES: FROM IDENTIFICATION TO

INTERVENTION (2007).
Robert A. Garda, Jr., Untangling Eligibility Requirements under the Individuals with Disabilities Act, 69 MISSOURI LAW REVIEW 441 (2004).
Stacey Gordon, Making Sense of the Inclusion Debate under IDEA, 2006 BRIGHAM YOUNG UNIVERSITY EDUCATION & LAW JOURNAL 189
(2006).
CHERI HOY & NOEL GREGG, ASSESSMENT: THE SPECIAL EDUCATOR’S ROLE 46 (1994).
NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS, BEST PRACTICES IN SCHOOL PSYCHOLOGY IV (A. Thomas & J. Grimes eds., 2002).
NATIONAL ASSOCIATION OF SCHOOL PSYCHOLOGISTS, NASP TOOLKIT: ASSESSMENT ALTERNATIVES UNDER IDEA 2004 (2006).
THE SAGE HANDBOOK OF CHILD RESEARCH (Gary B. Melton et al. eds., 2014).
Michael Solis, Jeremy Miciak, Sharon Vaught & Jack M. Fletcher, Why Intensive Interventions Matter: Longitudinal Studies of Adolescents with
Reading Disabilities and Poor Reading Comprehension, 37 LEARNING DISABILITY QUARTERLY 218 (2014).
U.S. Department of Education, Regulations Implementing Individuals with Disabilities Education Improvement Act of 2004 (August 14,
2006), available at https://www2.ed.gov/legislation/FedRegister/finrule/2006-3/081406a.pdf
DEBORAH P. WABER, RETHINKING LEARNING DISABILITIES (2010).
Betsy B. Waterman, Assessing Children for the Presence of a Disability, NICHCY NEWS DIGEST 1 (1994) (disseminated by the former National
Information Center for Children and Youth with Disabilities).

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PART V

COMMUNICATING WITH THE COURTS

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CHAPTER 18

Consultation, Report Writing, and Expert Testimony

18.01. INTRODUCTION

The legal system’s use of reports and testimony from mental health professionals dates back to well before the
beginning of the 20th century.1 Since that time, the courts’ reliance on such witnesses has steadily increased.
In the late 1980s, it was estimated that psychiatrists, psychologists, and social workers were involved in as
many as one million legal cases a year.2 The number is probably at least twice that now.3
As Chapter 1 indicated, the influx of mental health professionals in the courtroom is viewed with cynicism
and doubt by a good many detractors. To some extent, this antipathy stems from the belief that mental health
professionals too often try to answer legal questions for which there are no good behavioral science answers—
or, worse, are merely selling their testimony to the highest bidder.4 But it also flows from the fact that even
when clinicians have something useful to say and are eager to maintain their integrity, their message is often
obscured or confused. Their reports are perceived as conclusory and filled with jargon; their testimony is
viewed as hard to follow (on direct examination) and befuddled (on cross-examination).
Forensic knowledge of the type provided in the previous chapters will be virtually useless if it is not
organized and presented in a manner that will be helpful to legal consumers (lawyers, judges, jurors), and if its
purveyors are not prepared to endure the sometimes harsh scrutiny that the adversary process demands.
Accordingly, forensic clinicians need to develop skills in consultation, forensic report writing, and delivery of
oral testimony. Lawyers too need to develop skills, parallel to those the clinicians must have. Bonnie has
noted:

The bench and the bar are ultimately responsible for improving the administration of justice. If judges and juries are confused or misled by
expert testimony, this usually means there has been poor lawyering. If experts give conclusory testimony, encompassing so-called ultimate
issue issues—and fail to explain the bases for their opinions—the fault lies with the bench and bar, not with the experts. If forensic evaluators
do not have access to the same information and reach different opinions for this reason, the fault lies with the legal system, not with the
experts.5

In short, both clinicians and lawyers need to do better at translating clinical knowledge into legally useful
form.6
In this chapter, we explore formal and informal communications between the clinician and agents of the
court; in particular, we examine the social psychology of the courtroom and the mechanics for presenting
testimony.7 The first three sections below deal with preliminary contacts between the clinician and the legal
system. The fourth section provides suggestions for the preparation of written reports. The final two sections
deal with various aspects of testimony in court.
A principal theme of this chapter is that, above all, clinicians should be effective advocates for their data,
whether or not this makes them effective advocates for the parties that call them to court. Because much of

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this chapter deals with ways of coping with the courtroom and the adversarial system, readers may be misled
into thinking that we are simply coaching clinicians on how to “win” for their side. That is not our intention.
For instance, throughout this chapter we recommend full disclosure of data (including data that limit or may
be inconsistent with one’s opinions and formulations) and discourage heavy reliance on testimony about
ultimate legal issues. Both of these postures stem from the perspective that the clinician should strive to
remain neutral with respect to the policy objectives of the party calling the clinician to testify, and should
focus on helping the legal decisionmaker understand matters in dispute that involve matters of psychology or
psychiatry. At the same time, effective communication requires knowing the “system.” Defending one’s data
in any forum requires familiarity with the rules, roles, and procedures that one can expect to encounter, and
acquiring such familiarity is what we purport to address here.

Problem 18.1

Read the Timmy Gonz-Jones custody report in § 19.14. Assume that you are participating in a pretrial
conference as either the psychologist who wrote the report or the lawyer representing Mr. Jones, who has
called the psychologist as an expert in that case. How would you prepare for testimony? How should direct
examination proceed? What should the lawyer tell the mental health professional? What should the mental
health professional tell the lawyer?
Now assume that the mental health professional has testified on direct examination. How should he or
she respond to the following questions on cross-examination? Should the lawyer object to any questions?
“Doctor, I’d like to start with some questions about your qualifications and evaluation procedure. You
are not a medical doctor, correct? Isn’t it true that Dr. Cowan prescribed Ritalin for Timmy? And isn’t it
true that you would have no way of knowing whether this was the correct treatment for Timmy? Even if
you have some idea, the fact remains that if medication rather than therapy is the best treatment for
Timmy, you don’t have the expertise to tell us, correct? Thus your ability to tell us what is in Timmy’s best
interests is somewhat circumscribed, correct?
“As to your evaluation procedure, you stated during voir dire that you interviewed several people,
including all the parties, and conducted testing, specifically the Minnesota Multiphasic Personality
Inventory–2. Did you do a Thematic Apperception Test? A Rorschach? A Wechsler Adult Intelligence
Scale? A Bender–Gestalt? And you call this evaluation comprehensive? Nor did you do a home visit, which
is a standard part of any custody evaluation, did you? So you never really saw Timmy in his everyday
environment, did you?
“Doctor, I’d now like to turn to your suggestion that Mr. Jones is the best parent for Timmy. Isn’t it
true that, all else being equal, fathers are generally not the best parents? Do you have any research to back
up the belief that fathers are, all else being equal, as good parents as mothers? Doctor, do you recognize
this book? [Shows witness Fatherhood and Family Policy (Michael E. Lamb & Abraham Sagi eds., 1983),
the relevant chapter of which is noted in § 16.03(b), note 206] Is it an authority in the field? In a chapter
in this book by Ross A. Thompson, entitled The Father’s Case in Child Custody Disputes: The
Contributions of Psychological Research, the statement is made that the studies tending to show fathers are
good parents, I quote, ‘all . . . rely upon interviews with single fathers without direct observation of father–
child interaction. Their portrayal of family life is thus inherently subjective and, quite likely, positively

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skewed.’ Furthermore, the summary says, the fathers in these studies ‘were contacted through informal,
word-of-mouth sources, advertisements or, on occasion, single-parent support groups (such as Parents
Without Partners), and thus probably reflect a select, highly motivated, and involved sample.’ Thus the
research is highly flawed, is it not?
“Turning to Mr. Jones in particular, let’s look at how good a parent he would be, compared to Ms.
Gonz. First, isn’t it true that he was arrested for stealing from his employer? Was Ms. Gonz ever arrested
for a criminal offense?
“Second, isn’t it true that Mr. Jones has alcoholism? Does Ms. Gonz have a drinking problem? Isn’t the
common saying true that ‘once an alcoholic, always an alcoholic’—that these people must fight to keep
from drinking? And isn’t it true that Mr. Jones has never sought help for this problem until recently—
indeed, after this custody battle began? Would you be surprised to learn that Mr. Jones is drinking again?
“Third, isn’t it true that Mr. Jones faked his answers on the MMPI-2? I read from your report: ‘Mr.
Jones may have minimized his difficulties or shortcomings, in an attempt to portray himself in a positive
way.’ That means he faked his answers, right? At the same time, did you not describe Ms. Gonz’s
responses as ‘honest and straightforward?’
“Fourth, isn’t it true that Mr. Jones thinks that a major reason his marriage with Ms. Gonz failed was
the fact that they married after only knowing each other for ten weeks? Yet isn’t it also true that Mr. Jones
become engaged to his current wife after only one month? Do you think Mr. Jones learns from his
mistakes?
“Now let’s talk about Ms. Gonz’s strengths and her supposed problems. First, you don’t think Ms.
Gonz is a bad parent, correct? Indeed, you state that she is creative and loving, correct? She has never
abused the child, correct? Timmy has always lived with her, correct? And it would be wrenching to take
him away from her at this point, correct? Especially, now that he has a baby brother whom he loves,
correct?
“Doctor, it appears that you think Ms. Gonz’s biggest problem is her inability to follow through and get
things done, correct? One reason for that conclusion is her MMPI-2 test, correct? Could you show me the
scale that led to your conclusion in this regard? [The Ma scale, on which Ms. Gonz received a 27.] Now
isn’t it true that Mr. Jones’s performance on this scale looks pretty similar? [Mr. Jones received a 25 on this
scale.] We’re talking a difference of 2 points on a 50-point scale right? Doctor, do you recognize this book
as an authority? [Showing the witness KENNETH POPE ET AL., THE MMPI. MMPI-2, AND MMPI-A IN

COURT: A PRACTICAL GUIDE FOR EXPERT WITNESSES AND ATTORNEYS (3d ed. 2006).] In this book,
there is a table that seems to state that Ms. Gonz’s results means she is less able to follow through than
92% of those tested, but it also indicates that, based on his test results, Mr. Jones is less able to follow
through than 85% of those tested. There’s not much difference between the two, is there?
“Another reason you seem to think Ms. Gonz has difficulty in getting things done is that she hasn’t
followed through on appointments and therapy, correct? Yet she has never been late for an appointment
with you, has she, Doctor? As to these appointments with the three therapists, isn’t it true that one
encounter ended because Mr. Jones, not Ms. Gonz, wanted to terminate the relationship? And isn’t it true
that one of the other encounters was terminated by Ms. Gonz because no one had told her that Timmy
was getting Ritalin? Doesn’t this show concern, rather than inattention, on her part?

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 “As to Ms. Gonz’s failure to keep appointments with the last therapist, and with Timmy’s teachers, isn’t
it true that one reason for this could be the fact that Ms. Gonz is a single mother with a job? Isn’t it true
that since the last therapist, her mother has moved in with her? This is likely to mean that Ms. Gonz will
have fewer child care burdens, correct?
“Doctor, would you like to change your opinion at this time?”

18.02. PRELIMINARY CONSULTATIONS

Ideally, the groundwork for a forensic evaluation, report, or testimony is laid through a series of consultations
between the clinician and the attorney responsible for the referral.8 In his text on principles of forensic
evaluation, Heilbrun and his colleagues described six key matters that should be addressed during these initial
contacts: (1) identifying the relevant forensic issues; (2) determining whether the referral questions are within
the clinician’s areas of expertise; (3) evaluating whether any concerns about impartiality exist; (4) clarifying the
role(s) that the clinician will be expected to fill (which includes setting the ground rules for interaction with
the examinee and the attorney); (5) clarifying financial arrangements; and (6) obtaining the appropriate
authorization to proceed with the evaluation.9 These issues have been discussed in detail in previous chapters,
so they are only summarized here.

(a) Clarification of Issues to Be Addressed

When a forensic evaluation is requested, the clinician must make sure to verify the legal issues to be addressed.
Too often, a brief, informal call from a court clerk is followed by a written court order for evaluation that is
unclear. Or a court routinely uses dated order forms that are overly restrictive or vague in light of what the
referring judge intends. In either case, amended orders may need to be requested. An initial referral from a
private attorney can be just as ambiguous. Brodsky and Poythress noted:

As elementary as it may seem to do so, attorneys do not always tell the mental health professional in clear terms the focus of the examination
and testimony to be provided. Attorneys may confuse the different legal issues, or they may mistakenly assume that one examination will
suffice for a variety of purposes.10

Even apparently clear referrals from courts may have hidden agendas. For example, an order for an
inpatient examination of competence to proceed may actually have been requested because (1) the sheriff
wants to reduce overcrowding in the jail; (2) the defendant is considered to be at increased risk for suicide and
is thought to require civil commitment; (3) the defendant has medical problems for which the county does not
want to pay; or (4) the attorney is using the referral for tactical delay [see § 6.03(c)]. Careful inquiry into the
reasons for the referral may save time in the evaluation process or obviate it altogether. Further, if the issues
discussed below are resolved and the evaluation takes place, this clarification also helps ensure that the
examinee is properly notified about the nature and purpose of the evaluation, and that the examiner focuses
the evaluation appropriately. Failure to provide proper notification may trigger legal or ethical rules restricting
the admissibility of the information gathered [see §§ 4.02(f), 4.05(d)].

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 (b) Determining Appropriate Expertise and Availability

The most fundamental reason for clarifying referral issues is to make sure that the clinician has the clinical and
forensic skills necessary to undertake the referral. Such an inquiry is crucial, because clinicians should never
agree to conduct evaluations on issues they are not competent to address.
Even if qualified to perform the evaluation, the clinician should alert the attorney to the limits of his or her
expertise on any of the referral questions. Legal professionals may otherwise approach mental health
professionals with mistaken assumptions about what information an evaluation might provide. Furthermore,
clinicians should indicate their posture with respect to testifying on ultimate legal issues. Many attorneys will
expect clinicians to readily offer opinions or conclusions couched in ultimate legal language. Clinicians who
intend (as we encourage in § 18.07) to deviate from the traditional posture should so advise lawyers, who can
then decide whether to make another referral.
If the referral is coming from an attorney in a state where the clinician is not licensed to practice, an inquiry
should be made regarding that state’s rules and regulations regarding local practice requirements. States differ
widely in their regulation of out-of-state experts, and failure to consider local regulations may result in a
variety of negative outcomes for the clinician, the case, or both [see § 4.05(a)].11
Once the examiner has an understanding of what the retaining party wants, he or she can form some
general impression of the work and time involved. At this point, the examiner should discuss with the referral
source any litigation timelines and dates, and determine whether he or she will be able to schedule the
evaluation and participate in any scheduled proceedings.

(c) Evaluating Impartiality

The clinician should also attempt to determine whether there are any factors that would make it difficult for
him or her to render an impartial formulation or opinion in the case. Obvious concerns would include any
prior personal or professional relationship with the examinee or persons close to that individual. Other
concerns might include a potential financial interest in the outcome beyond the expected fees for conducting
the evaluation. Personal values of the clinician may also come into play. Clinicians have been known to decline
pretrial evaluations of criminal defendants facing child abuse charges because of a general animosity toward
such individuals. Some clinicians may believe that they could not be objective conducting evaluations of
competence to face execution because of moral opposition to the death penalty or perceived conflicts with
other ethical mandates [see §§ 7.07(c) and (d)].12 If the mental health professional determines that his or her
objectivity might be compromised, the referral should be declined.

(d) Clarifying the Examiner’s Role

Even if the initial referral question is clear and the evaluator has the expertise to address it with impartiality,
further role clarification may be necessary. For instance, the attorney may expect the mental health
professional to function not only as an expert evaluator, but also as a consultant (e.g., in connection with jury
selection or helping to prepare cross-examination of the other side’s witnesses). As Hess observed, “the
consultant role can predispose the psychologist to identify with the client’s cause and lead to loss of

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objectivity,”13 which in turn can compromise the expert’s role, “rightfully provoking the criticism that experts
are hired guns.”14 A possible solution is for the clinician to agree initially only to serve as an expert examiner,
and to decline to perform any consultative services unless and until the attorney has determined that the
results of the forensic assessment will not be presented at court, thus relieving the clinician of the expert
evaluator role. These issues, which are not uncontroversial,15 are discussed more fully in § 4.03(b)(1).
Other matters that should be settled with the examinee and the attorney or other inferring agency (gleaned
from § 4.05) include the following:

The need for the examinee and the referring agent to be as open with the evaluator as possible (with the
provision that a significant failure to provide information may result in an inability to provide an opinion).
The need for the examinee to provide (revocable) releases for all information and records considered
relevant by the evaluator.
The fact that the clinician may contact third-party sources of information, including the examinee’s
friends, relatives, acquaintances, and/or employers, in order to acquire relevant information.
The need for the examinee to permit revelation of confidential information to consulting clinicians and
third-party insurers when necessary.
The possibility that damaging or embarrassing information will be revealed as a result of the evaluation.
The possibility that opinions will be offered that are not helpful to the examinee.
The fact that the clinician is conducting an examination and not providing treatment.
The types of assessment techniques (including tests and interviews) that may be employed.
The likely length of the evaluation process.
The fact that the clinician does not give legal advice.
The fact that any prepared report will be submitted to the referral source, not the examinee (although the
examinee may have a feedback session with the clinician).

The topics outlined above may be spelled out in the form of an agreement to be signed by the examinee
after consultation with counsel. If the clinician takes this approach, sentences can be added to relieve the
clinician of legal liability for damage caused by disclosure of confidential information. However, this kind of
“release” seldom prevents a finding of liability when the clinician’s negligence is the cause of such disclosure in
those rare situations where liability from disclosure is possible [see § 4.04(a)].16

(e) Clarifying Financial Arrangements

A fifth issue to be addressed during initial contacts concerns financial arrangements [a topic discussed in detail
in § 5.06(a)]. In many evaluation situations, this issue may be relatively simple to address. For court-
appointed pretrial evaluations of adjudicative competence or mental state at the time of an offense, for
instance, payment amounts and schedules may be set by the court. Expenses associated with the infrequent
case that requires more extensive or collateral data acquisition may be sought by the attorney through a
petition to the court.
In cases in which the expert is privately retained by counsel, however, the clinician should execute a written
contract for services. As discussed in § 5.06(a), this contract should specify the clinician’s hourly fee for

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services and provide for a retainer to cover the initial costs of conducting the evaluation, up to at least the
point of providing an oral report of findings to the retaining attorney. Some authorities suggest a schedule of
payments that specifies periodic payment of accumulated fees to be paid at or before identifiable phases of the
evaluation and/or litigation in association with deliverable work products (e.g., prior to a written report; prior
to deposition).17
Most importantly, the contract should specify that the attorney’s firm is responsible for payment of all fees
associated with the expert’s services. For a number of reasons, clinicians should avoid arrangements that pass
payment responsibility on to the attorney’s client, an insurance company with which the attorney is working
or which insures the attorney’s client, or other third parties. Executing a contract with the attorney also serves
to reinforce the applicability of attorney–client privilege (where the privilege applies), and provides insulation
from untoward effects of taking payment directly from the subject of the examination.
Finally, as discussed in § 4.05(b)(2), ethical guidelines discourage mental health professionals who are
expected to testify from entering into contingency fee arrangements (in which an expert witness is paid only if
the retaining party prevails in some way), given the potential impact it can have on the professionals’
objectivity. Moreover, in some jurisdictions these fee arrangements are prohibited by law. Letters of
protection, in which experts are expected to delay seeking payment for services until litigation is complete (but
which require payment at that point, whether or not relief is granted) are not considered contingency fee
arrangements. However, because these letters create similar pressures, many recommend that experts not enter
into such agreements.18

(f) Obtaining Appropriate Authorizations

Assuming that the foregoing issues have been satisfactorily resolved and an agreement to conduct the
evaluation is reached, the final issue is to ensure that appropriate authorization for conducting the evaluation
is provided for the clinician. In a court-appointed case, this authorization will usually be in the form of a court
order, which (pending clarification with the court clerk and/or attorney) may need to be modified if it does
not authorize the type and scope of evaluation that is desired. In a private appointment case, the authorization
will come in the form of a letter from the attorney that affirms the examiner’s employment in the case and
identifies the array of forensic issues to be addressed in the evaluation.

18.03. DATA COLLECTION, MAINTENANCE, AND DISCLOSURE

With the appropriate authority to proceed, the clinician can begin the data collection stage, and at this point
information exchange becomes crucial. At the initial contact, most of the information will be in the referring
party’s possession. What current behavior or background information has prompted the referral? What
records have been obtained or requested? Where is the examinee residing, and what special arrangements, if
any, must be made for the clinical evaluation? What other information sources should be contacted? What
time constraints, if any, exist? Is a written report requested regardless of the outcome, or only if the clinical
data are favorable to the attorney’s case? Generally, these questions should all be answered at the initial
contact stage.

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 Also at this stage, the clinician may begin to compile a list of collateral sources of data that the attorney or
court can seek and provide. Criminal, mental health, medical, educational, military, and employment records
are usually more easily obtained by the attorney (as personal representative of the examinee) or the court than
by the examiner. Furthermore, some potentially useful information (e.g., otherwise confidential and privileged
health care records, questioning of noncooperative witnesses) may be available only through discovery
methods such as subpoenas, interrogatories, depositions, or private investigations—procedures only the
attorney or court can initiate [see generally § 3.04(b)]. If there appear to be time constraints for the
examination, the examiner should suggest that the attorney request a continuance so that a proper evaluation
can be completed.
Clinicians should be aware that attorneys may not initially provide all of the case information in their
possession. The reasons may vary. Sometimes an attorney may believe that the information is irrelevant or
minimally relevant and withhold it, thinking that the less information the clinician has to review, the less time
will be spent (and billed) reviewing records. Alternatively, information that the attorney perceives to be
potentially damaging to the case may be withheld in the hope of obtaining a more favorable opinion. Of
course, in either case the risk is that an expert’s opinion may change when the expert is presented with the
withheld information. To avoid this situation, the court-retained examiner can submit requests in writing to
all parties for all case-related information they consider relevant. If either counsel subsequently tries to suggest
that the expert failed to consider information that was not made available, the expert can respond, “I didn’t
consider this information, because it was not provided to me when I requested that your office forward all
relevant information.” If retained by counsel, the examiner should submit requests for relevant information to
the attorney.
Once collected, data should be carefully maintained. Examiners will often be required to testify on cases
initiated several months or even years earlier. Without records detailing not only conclusions but also the data
supporting those conclusions, preparation for testimony will be difficult, and the testimony itself will probably
be lacking in credibility.
Good records typically contain the following:

The referral source and reason for the forensic contact.

Relevant legal documents provided by the referral source (e.g., court order, indictment, depositions,
pleadings, transcripts).
Information about financial arrangements.
The date, length of time, and content of each visit, phone call, and conference, with descriptions of events
in the examinee’s or third party’s own words whenever possible.
Results of psychological and other tests.
Clear separation of opinion from factual matters.
Initialing of items in the record that are not in the clinician’s handwriting.
Copies of all correspondence.19

Perhaps the only individual case data that should routinely be discarded from files are trivial notations and
draft reports that have been superseded by final products. Copies of articles relied on in forming opinions also
need not be kept in the files.

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 As the previous paragraph suggests, the evaluator’s files may provide useful “impeachment” information for
the cross-examiner. Under some circumstances [as discussed in §§ 4.02 and 4.04], the contents of an
evaluator’s files may be protected by the attorney–client privilege or the Fifth Amendment. Once the mental
state of the person evaluated becomes a litigation issue and the examiner is announced as a witness, however,
the file contents lose that protection. Indeed, virtually every relevant piece of information in the file (including
the examiner’s scribblings) is generally discoverable once the examiner has been identified as a witness prior to
or during trial. Such discovery is usually accomplished through a subpoena duces tecum (literally, “bring with
you”).
Fearful of such a subpoena, some clinicians may keep only minimal information in the file or create
separate “court” and “personal” files. Neither approach is a good one, for a variety of reasons. First, as we
discussed earlier, comprehensive file information is important. Second, merely labeling a file “personal” does
not exclude it from the reach of a valid subpoena. Finally, such attempts to hide information are inconsistent
with the examiner’s obligation to act in an objective manner and assist the trier of fact. If the court learns
about such ruses, the clinician could be held in contempt.20 The best approach is to keep complete files and, if
in doubt, retain information in the file. Any information that is truly irrelevant can and should be excluded by
the judge. Information that is relevant should not embarrass the evaluator who has been objective and candid.
Occasionally, even relevant information for which privilege has been waived may be protected from a
subpoena. Two such situations are noteworthy. First, the “work product doctrine” protects information that
comes directly from the attorney and that could be construed to pertain to the attorney’s “mental impressions”
about, or strategy for, the case.21 Exactly what constitutes “work product” is often contested by attorneys.
Experts, as a result, should seek guidance from retaining counsel when contemplating whether any
information contained within the file qualifies as “work product” and is not subject to disclosure as a result.
One way an expert can circumvent confusion in this area is to provide the file information to the retaining
attorney, with the understanding that he or she will review it and provide to the other party only that
information to which it is entitled.
Second, “test data” (i.e., test scores, examinee responses and reports) and “test materials” (i.e., tests, test
manuals, test protocols, test questions, test stimuli) may not be directly discoverable. The American
Psychological Association’s Ethical Principles of Psychologists and Code of Conduct direct psychologists to
“provide test data to the client/patient or other persons identified in the release” and to “take reasonable steps
to ensure that explanations of [test] results are given to the individual or designated representative unless the
nature of the relationship precludes provision of an explanation of results.”22 But based on concerns about
misuse of test results and test security, the Ethical Principles also allow withholding of data to “protect a
client/patient or others from substantial harm or misuse or misrepresentation of the data or the test,”23 and
mandate that psychologists “make reasonable efforts to maintain the integrity and security of test materials
and other assessment techniques consistent with law and contractual obligations, and in a manner that permits
adherence to this Ethics Code.”24 The latter prescriptions run afoul of the adversary system’s penchant for
transparency and disclosure of the basis for proffered expert opinions,25 and thus courts need not abide by
them (especially in the face of a valid motion for discovery). However, many courts have been willing to accept
the position that test data and test materials should be released only to qualified mental health professionals
trained in psychological assessment.26

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 When valid grounds for not complying with a subpoena exist, the clinician can usually look to the retaining
attorney to make arguments directed toward “quashing” the subpoena. If there is no such attorney, or if a
third party’s interests are at stake (e.g., the files contain private information about a third party otherwise
uninvolved in the case), the third party or the clinician may need to retain a lawyer (although arguments can
also be made pro se). Note further that in the absence of a subpoena signed by a judge, turning over
documents may be a violation of confidentiality or privilege. It is important to make sure that the subpoena is
valid.
Occasionally a forensic clinician may receive a telephone request from the opposing attorney, “wondering”
whether the clinician would discuss the case or provide access to records. In such situations, the best course of
action is to contact the retaining attorney to ascertain his or her views about such contact. Often opposing
counsel is not permitted to engage in such informal discovery. Instead, the adverse party will be required to
depose the clinician. The deposition notice may then be accompanied by a subpoena duces tecum or formal
discovery request for documents [see generally § 2.04(b)]. The same procedure might be appropriate when the
examiner is retained or appointed by the court, and either attorney wants informal discovery. Here, however,
the examiner could suggest meeting with both attorneys simultaneously; this would avoid the cost of a
deposition, allegations that the evaluator is aligning with one of the attorneys, and any appearance of
impropriety (although the clinician should still bill for any time he or she spends in this pursuit).

18.04. PRELIMINARY REPORT OF FINDINGS

Throughout the evaluation process, the clinician should keep the referral source agency informed of how the
evaluation is progressing and whether additional information is needed. When the evaluation is completed,
the examiner should contact and seek direction from the referral source. When retained by counsel, the
examiner should offer an oral summary of his or her findings and let the attorney decide whether a written
report is needed. If the referral originates with the court, on the other hand, a written report is typically
prepared without preliminary oral communication of the findings.
Not uncommonly, the clinical evaluation will result in findings that suggest legal strategies other than
those considered at the initial contact. For example, an evaluation of competence to proceed may reveal that
the defendant has a chronic mental disorder that may have affected his or her competence to exercise Miranda
rights [see § 7.03]. Similarly, an evaluation in a divorce/custody case may conclude that both partners are
amenable to a mediated settlement, which would be less costly, both emotionally and financially, than
proceeding to an adversary hearing [see § 16.01(b)(2)]. When alternative issues appear ripe for exploration,
and the referral source agrees to them after proper explanation, the scope of the clinical evaluation can be
expanded to address the new legal issues.
At this preliminary stage, clinicians may also be able to give feedback that will assist attorneys in working
more effectively with their clients.27 Such advice can be particularly helpful when litigants are impaired in
some ways. Attorneys may not be accustomed to working with such individuals and may feel frightened or
uncomfortable around them. For example, litigants with symptoms of mania may be difficult to interview,
given their rapid speech, poor transitions between topics, and intense emotions. In such cases, attorneys can
be educated about how to structure their interactions (e.g., ask brief, focused questions) and avoid appearing

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fearful of their clients’ outbursts. Similarly, in cases in which a person’s intellectual impairment is mild but
perhaps not obvious, clinicians can provide the attorney with strategies to facilitate communicating and
working with the client. Clinicians can also offer advice about the appropriate precautionary measures to be
taken for recurring disturbances, such as seizures, and can warn attorneys or the court of the probable extent of
trial delay should a seizure occur. Finally, an examiner might comment on interactions between the litigant
and the social–legal environment (e.g., relationships to family members, to the court, or to jail personnel) and
suggest ways to improve the litigant’s coping skills while awaiting resolution of his or her case.

18.05. REPORT WRITING

As indicated above, almost all cases in which the examiner is retained by the court will result in preparation of
a written report. Whether the examiner will write a report when retained by counsel, however, depends on a
number of factors. Most obviously, if the examiner’s opinions are not helpful, the attorney will probably not
want a report. If the expert’s opinions are supportive of the attorney’s legal argument, a report is more likely,
but is not always requested. For example, in some jurisdictions (e.g., Florida), experts who are expected to
testify are not required to write a report. However, other jurisdictions require clinicians who will testify to
prepare reports in anticipation of trial. For instance, the Federal Rules of Civil Procedure provide:

Unless otherwise stipulated or ordered by the court, [identification of a testimony expert] must be accompanied by a written report—
prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose
duties as the party’s employee regularly involves giving expert testimony. The report must contain: (i) a complete statement of all opinions
the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits
that will be used to summarize or support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous
10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a
statement of the compensation to be paid for the study and testimony in the case.28

Reports summarizing forensic evaluations differ in a number of important ways from reports prepared for
use in traditional clinical settings. First, forensic reports are not written for other health care professionals, but
for legal personnel and laypersons who are unfamiliar with clinical shortcuts in report writing. Therefore,
jargon should be kept to a minimum or explained. Furthermore, judges and attorneys are accustomed to
scanning cases and briefs, looking for the discussion of the legal issue that is most pertinent to their
arguments. Forensic examiners should write in a fashion that facilitates this approach—for example, by using
topical headers that identify different types of information (e.g., referral issue, clinical findings, opinions about
legal issues) and organizing the report as an argument that builds from data to inferences and conclusions.29
Second, compared to the content of a traditional clinical report, the report’s content is more likely to
become public knowledge—either as part of the court record, through word-of-mouth statements of
courtroom spectators, or through media coverage of court proceedings. Thus the examiner should take care to
minimize any infringement on the privacy rights of persons mentioned in the report, including the examinee
[see § 4.05(e)(2)].30 Finally, and most importantly, the report and the clinician who writes it will (or at least
should) receive close scrutiny during adversary negotiations or proceedings. A well-written report may obviate
courtroom testimony. A poorly written report may become, in the hands of a skillful lawyer, an instrument to
discredit and embarrass its author. Therefore, attention to detail and to the accuracy of information is

729
required. All these issues are elucidated further below.

(a) Functions of a Forensic Report

The written report serves several important functions. It is, first of all, a professional record documenting that
an evaluation has taken place and the manner in which it was performed. The nature of the evaluation and the
opinions the examiner formed are memorialized through a summary of the contacts with the examinee, the
assessment procedures employed, and the collateral data sources considered. Findings and limitations in the
clinical data are also preserved in written form. Lawyers might find particularly important the collateral
sources upon which the examiner relied, for purposes of determining whether those sources are “hearsay” or
suspect for some other reason, and whether they may nonetheless be described in court without objection [see
§ 3.07].
In addition, the act of creating the report forces the examiner to impose some organization on his or her
data.31 Data are often gathered from widely diverse sources and are sometimes inconsistent.32 Drafting a
report requires the examiner to weigh this information, find a theme that best integrates the various findings,
consider alternatives, and recognize vulnerabilities. Organizing data and thoughts for the report also helps the
mental health professional covertly prepare and rehearse the essence of any direct and cross-examination
testimony that may be provided.
A third function of the report, as noted previously, is to permit disposition without formal legal
proceedings. A well-written, articulate report may satisfy both parties to the degree that stipulations to the
written findings and conclusions are entered. It may also serve as a basis for informal negotiations, as in plea
bargaining or out-of-court settlements in civil cases.

(b) General Guidelines for Report Writing

There are no hard-and-fast rules for writing forensic reports, and substance and organization may vary,
depending on the type of referral. However, several general guidelines appear applicable across many
contexts.33

(1) Separate Facts from Inferences

Examiners should take care to distinguish facts they are provided or uncover from their inferences and
opinions. This organization allows the examiner to “build” a case, organizing the investigative data in a
manner that invites the reader to reason along with the writer. Furthermore, as noted above, if the
decisionmaker wishes to consider the examiner’s data independently, this segregation facilitates the effort. In
providing this information, the clinician must always attrribute sources and distinguish assertions that might
be self-interested (e.g., “Mr. X reported that he graduated from high school in 1989”) from corroborated
information (e.g., “School records reflect that Mr. X stopped attending school after being expelled while in
10th grade”).
Regardless of the forensic issue it addresses, a report should always include certain items of information. In

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the order that we have found useful (and that clearly separates facts from opinions), they are the following:

1. Circumstances of the referral. The examiner identifies the referral source that authorized the evaluation
(e.g., attorney referral, court order); legal issues addressed; and circumstances leading to the clinical evaluation
(e.g., a description of ongoing litigation in custody/divorce or criminal proceedings).
2. Date and nature of clinical contacts with the examinee. This section lists the examiner’s contacts with the
person and describes the nature of the contact (e.g., interview, psychological testing, family observation). We
also recommend that the clinician document the time spent with the individual during each session.
Recording session times can prevent potentially embarrassing moments on the witness stand when the
clinician’s recall is demonstrated to be drastically at odds with jail log-in sheets or other records. This
information also provides an indirect method of assessing the evaluation’s comprehensiveness.
3. Collateral data sources. In this section, the examiner identifies sources of information other than the
individual who was examined (e.g., third-party interviews; case documents such as depositions, pleadings, or
arrest reports; educational, legal, health care, military, or employment records).
4. Relevant personal background information. Historical information about the examinee that is relevant to
the examiner’s opinions is provided here. This section might be extensive in some kinds of cases (e.g., a
lengthy history of illness and treatment in a disability case) and extremely brief in others (e.g., any evaluation
that is highly focused on present state, such as competence to proceed). The key to including information in
this section is its relevance to the matter at hand.
5. Clinical findings. This section summarizes the examiner’s observations, test results, and so forth.
Observations about present mental functioning or, when appropriate, diagnostic formulations would be
included here. Forensic examiners should keep in mind that legal consumers are likely to have difficulty
understanding test scores or indices without some accompanying explanation, since test scores are essentially
jargon. Thus, for example, Weiner has suggested that when reporting that an examinee obtained an IQ of 100
on a particular measure of intelligence, the examiner also report the following: The test is a widely used
measure of intellectual functioning (assuming this to be the case); the score is an estimate of true intellectual
abilities that (like all tests) is subject to error; and approximately half of the adult population obtains scores
higher (or lower) than 100.34 Weiner has also argued that the test results are more defensible if expressed in
terms of the type of information such tests actually yield (i.e., inferences about individuals based on
nomothetic data). Thus he advises characterizing individuals in relative terms (e.g., “Mrs. J is more self-
centered than most people”) or by noting similarities to clinically relevant groups (e.g., “Mrs. T shows many
clinical features in common with people who have experienced a stress disorder subsequent to a traumatic
event”), rather than in absolute terms (e.g., “Mrs. J is a very self-centered person”).35 Similarly, reports may be
both more accurate and defensible in the face of cross-examination if clinical conclusions are qualified in
terms of the bulk or balance of the evidence (e.g., “The evidence at hand suggests that Ms. L is quite
depressed and possibly suicidal at the present time”).36
6. Psychological–legal formulation. In this section, the examiner should draw on information reported in
the previous sections and integrate the data, using a logical or theoretical theme to indicate the relevance of
the clinical material to the legal issue being decided. In many (perhaps most) situations, forensic examiners
will have considerable latitude in constructing their formulations; indeed, this part of the report may often be

731
the most individualistic and creative. Clinicians should be aware, however, that in some jurisdictions
procedural or evidentiary rules may impose specific requirements on the way findings are reported. For
example, virtually all jurisdictions follow the Dusky standard for adjudicative competence [see § 6.02(b)], and
clinicians will need to offer formulations regarding the separate Dusky criteria. In states like Florida, the rules
of criminal procedure further articulate six specific factors that “examining experts shall consider and include
in their report.”37 Failure to address the specific factors may be rightfully interpreted as reflecting an
inadequate or insufficient evaluation, or an incompetent examiner. Thus awareness of and compliance with
any special reporting requirements is an important consideration (and one that the clinician should explore
with the attorney during the initial consultations).
Some sections of the report may, on occasion, include two or more alternative summaries or
interpretations. Situations that would warrant this approach include (a) reports based on evaluations by a team
(rather than an individual examiner), in which two or more team members have significantly different views
about the data or the meaning of the data; and (b) reports summarizing evaluations in which there is
conflicting factual information, such that assuming one set of facts leads to one formulation and assuming a
different set of facts leads to a different one [see § 8.07(c), Case 6]. In each of these situations, the report
should carefully spell out the data and assumptions associated with each of the formulations or opinions
presented. When appropriate, the examiner(s) should also communicate the level of confidence associated
with each formulation. When offering such conditional opinions, examiners should generally avoid indicating
which of the two (or three, or four) alternative scenarios is most likely, unless they can anchor their opinion in
some type of specialized knowledge. Rather, they should leave this decision to the trier of fact.

Chapter 19 presents model reports in several forensic areas, each of which reflects variations in the use of
this general format. The reader is referred to that chapter to get a concrete sense of how reports should be
organized.

(2) Stay within the Scope of the Referral Question

As discussed in § 4.05(e), a referral for forensic evaluation is not a license to inquire into any aspect of the
examinee’s life or behavior. Admittedly, clinicians privately retained by counsel may have somewhat greater
latitude in their examinations than mental health professionals working for the court, where a court order may
specify limits of inquiry. In either case, however, examiners should confine themselves to inquiries legitimately
raised by the referral source and should restrict the substance of their reports accordingly.
As obvious as this recommendation may seem, mental health professionals occasionally err by either (1)
failing to address issues that have been raised in the referral or (2) offering gratuitous opinions on issues that
have not been raised. McGarry’s 1965 study of competence evaluations in Massachusetts, which we hope is
unrepresentative of practice anywhere today, documented the first type of error.38 Of 106 reports audited,
none offered a discussion of the defendant’s understanding of an ability to participate in the legal process,
which was an explicit referral question in the court orders. Rather, the reports simply focused on the
examinee’s emotional, behavioral, and cognitive functioning, with discussion of many matters that were
wholly irrelevant to the issue of trial competence. More recent evaluations of the quality of forensic reports

732
document improvement over the situation reported by McGarry, although there is still evidence that clinicians
err by not fully addressing the legal issues or not adequately linking their clinical data to their inferences and
conclusions about clients’ functional legal abilities.39
Consider as one example, based on an actual case, a report evaluating a defendant’s mental state at the time
of the alleged offense. The following paraphrase fairly reproduces the examiner’s written summary:

It does not appear that Mr. Smith was suffering from any psychosis at the time of the assault. He may have been under the influence of
various drugs and alcoholic beverages, which he reported consuming at that time. There is no clinical basis for an insanity defense here. Mr.
Smith is one of the most dangerous persons I have ever examined; the only appropriate disposition would be a lengthy prison sentence.

Here the psychiatrist went beyond the referral question and made uninvited statements about disposition and
sentencing. With these damning statements appended, it is unlikely that the defendant’s attorney would have
felt comfortable submitting the report to the court, even though parts of it (e.g., the defendant’s drug history)
would have been relevant in weighing culpability.

(3) Avoid Information Over(and Under)kill

In preparing a written report, the clinician must make some decisions about the amount of information to be
included. Any written report will be a distillation of essential material from a larger body of data. There are
many schools of thought about this issue of data reduction, each of which has its advantages and
disadvantages. Individual preferences may dictate which philosophy an examiner will follow.
At one extreme are those who advocate writing very brief reports. These reports tend to be conclusory, with
extensive data and justification excluded by design. The objective is to provide as little ammunition as possible
for the cross-examining attorney. There are two primary problems with this perspective. First, these reports
cannot serve the documentation, organizational, and efficiency objectives outlined in § 18.05(a). Second,
engaging in such gamesmanship is inconsistent with the examiner’s obligation to be of assistance to the
decisionmaker, and suggests that the examiner has adopted the advocacy perspective of the retaining attorney.
At the other extreme are those who encourage lengthy, overly detailed reports. Such reports “cover all bases”
and usually leave the clinician an “out” from a tight situation in testimony. There are a number of problems
with this approach as well. First, this type of report may not be read, or, if read, may not be understood.40
Furthermore, longer reports tend to include irrelevant detail, redundancies, or excessive equivocations. This
may convey to the reader the impression of uncertainty or lack of self-confidence in the examiner, and it also
increases the risk that the examinee’s privacy will unnecessarily be compromised.41
For a written report to be useful, it should be brief enough that the attorney or judge is not intimidated by
its mere length; however, it should also be comprehensive. Relevance to the factfinder, not tactical
considerations (such as minimizing the amount of information that can be scrutinized by the cross-examining
attorney), should guide the examiner in making decisions about data inclusion or exclusion. Indeed, the
examiner is obligated to make known all sources of data and to present a balanced account of the evaluation.42
Thus, whereas extraneous social history data, overly technical descriptions of test results, and reference to
dated and perhaps marginally relevant medical, educational, military, or legal records may be excluded (or at
least deemphasized), findings essential to the clinical formulations advanced should be included.

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 To help determine which, and how much, information needs to be included in the written report,
consultation with the attorney may help. Although the clinician must exercise independent judgment in
deciding what is relevant to his or her findings, the attorney may assist in selecting the anecdotal or historical
material that is most important in light of the legal arguments that will be pursued.

(4) Minimize Clinical Jargon

In the clinical setting, mental health professionals’ reports are replete with clinical jargon. A man who knows
his identity and the date and place of the interview is “oriented times three”; an examinee who tenaciously
holds to obviously mistaken beliefs, even in the face of good evidence to the contrary, is said to exhibit
“delusional thinking”; a defendant who demonstrates no emotion has “blunted affect.”
As useful as this shorthand may be to mental health professionals, it can be confusing to legal consumers
and may even lead to erroneous impressions on the part of laypeople who assign the “generally accepted”
meaning to a clinical phrase (e.g., the belief that “schizophrenia” means “split personality”). Unfortunately,
many forensic clinicians do not seem to recognize this problem. For instance, in a study conducted by Petrella
and Poythress,43 judges and lawyers labeled “unclear” the following phrases from reports prepared by
experienced forensic clinicians: “delusional ideation”; “affect”; “neologisms”; “loosening of associations”; “flight
of ideas”; “blocking”; “his paranoid ideation is nonspecific, completely unsystematized”; “oriented to time,
place, and person”; “lability”; “loose associations and tangentiality”; “flat affect”; “grandiosity”; “personality
deficit”; “hysterical amnesia”; “‘lack of registration’ amnesia”; and “psychotic mentation.” Also likely to be of
no help to laypersons are most diagnoses and the specific dosages and trade or generic names of many
medications.
To say that clinical jargon is confusing to legal consumers is not to say that it is useless in the forensic
context, however. In addition to serving as a convenient shorthand, it helps to establish that the clinician is
dealing with a specialized body of knowledge. Psychological terms and constructs may also be useful in
developing and explaining theoretical formulations of the type that would not be obvious to the trier of fact,
provided that they are explained.
The obvious compromise is to explain these terms for legal consumers when they are first used; this
approach conveys the message that the clinician is an expert in a specialized field, at the same time that it
ensures more effective communication with the legal system. Furthermore, once explained, the terms acquire a
“shorthand” function for the new audience as well. These explanations need not be elaborate. For example, a
clinician might use such terms as “delusions” and “hallucinations” in the following manner: “During the
clinical interview, Mr. Jones voiced several delusional beliefs (i.e., strongly held but bizarre and obviously
mistaken beliefs resulting from a mental disorder) and reported a history of auditory hallucinations (i.e.,
hearing imaginary voices).” The sample reports in Chapter 19 offer other examples of explaining jargon in
written reports. In addition, the glossary of clinical and research terms in Chapter 20 may be of some aid to
clinicians developing a lay “dictionary” (as well as to lawyers attempting to decipher “clinicalese” that has not
been explained).

18.06. EXPERT TESTIMONY AND THE SOCIAL PSYCHOLOGY OF PERSUASION

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For many mental health professionals, going to court arouses considerable anxiety, fed by tales of colleagues
who have been embarrassed by clever attorneys. To some extent, such trepidation is legitimate. Nowhere are
the differences in training, philosophy, and objectives between lawyers and mental health professionals more
clearly on display than in an adversarial proceeding. The clinician as scientist-practitioner is accustomed to the
pursuit of truth through dispassionate examination of data. Attorneys, on the other hand, are committed
primarily to persuasion, and “the expert is often viewed by the retaining attorney as the ‘hood ornament’ on
the vehicle of litigation that the attorney drives into court.”44 From the attorney’s perspective, the “truth” as
the clinician sees it is but one more piece of information subject to manipulation in service of the greater goal
of achieving the desired verdict. Stated differently, attorneys are more interested in credibility than in truth per
se; many of the questions posed in court by attorneys are aimed at enhancing (through direct questioning) or
undermining (through cross-examination) a witness’s credibility [see § 1.03(b)].
On the other hand, if the clinician understands the attorney’s agenda and adjusts to it, the courtroom
appearance need not be traumatic. It is the exception rather than the rule that attorneys are truly malicious in
their cross-examinations; as often as not, it is lack of preparation by witnesses or their inexperience in
detecting or anticipating cross-examination gambits that leads to embarrassing moments in court. Once
witnesses gain an appreciation for the tactics of direct and cross-examination and work out strategies for
dealing with common ploys, courtroom testimony can be an enjoyable experience that is also informative to
the factfinder. The experience is most likely to be successful if experts remember that they are advocates for
their opinions, not for the attorneys who have retained them.
The key to such appreciation is understanding the notion of “credibility.” Research on the social
psychology of persuasive communications deconstructs credibility into three components: expertise,
trustworthiness, and dynamism.45 “Expertise” pertains primarily to the formal aspects of the witness’s
experience and training, including such factors as degrees obtained, positions held, populations evaluated or
treated, honors and awards, and so forth. “Trustworthiness” refers to perceptions that listeners (in this context,
judges and jurors) form regarding the honesty of the witness; put another way, it has to do with their degree of
confidence that testimony has been offered in good faith to inform rather than mislead. The third element,
“dynamism,” comprises a number of features related to style and charisma that serve to ensure that the
intended audience pays attention and listens to the speaker. Sensitivity to this latter aspect of credibility has
given rise to the well-worn adage that attorneys are often more interested in locating and retaining a good
witness than a good doctor.46
This section is intended to assist clinicians in preparing for court by highlighting common tactics attorneys
use to enhance or undermine the perceptions of judges and jurors regarding mental health experts’ expertise,
trustworthiness, and dynamism. We first look at how these tactics are used during the deposition, the pretrial
conference, and the three typical phases of testimony— voir dire (when the expert is qualified), direct
examination, and cross-examination. As will be seen, expertise issues arise primarily during the voir dire phase
of testimony; challenges to trustworthiness may be launched during either voir dire or testimony proper; and
efforts to combat dynamism are most likely to occur during cross-examination. The section concludes with a
general discussion of the procedural devices used by attorneys attempting to elicit or prevent testimony, as well
as the important issue of impression management.

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 (a) Deposition

In most civil cases, and increasingly in criminal cases as well, opposing counsel will file a motion to depose the
expert witness prior to trial. As discussed in § 2.04(b), a deposition involves sworn testimony, given out of
court but transcribed as a formal record. Depositions may take place at the office of an attorney, the court
reporter, or the expert.
Deposition procedures vary significantly from the courtroom procedures described below. While both
attorneys and a court recorder are present, no judge or jury is involved. There is no formal “qualification” (voir
dire) of the witness (although credentials may be examined). When the expert is retained by counsel, the
deposition will be requested by the nonretaining attorney, who initiates the questioning. The retaining
attorney may also ask questions. When an expert is court-appointed, the deposition is most likely to be
requested by the attorney who is not satisfied with the expert’s opinions. The rules governing questioning of
the deposition witness are also relaxed; the attorney who is not questioning the witness may “object,” but the
absence of a judge means that there is typically no contemporaneous ruling on the objection. Instead, the
witness will usually be instructed to answer all questions, and the objections will be ruled on later, based on
review of the deposition transcript. Two possible exceptions to this procedure can occur: in connection with
objections on privilege grounds and on the ground that a question asks for irrelevant and prejudicial
information, which some attorneys may insist should not be answered unless and until a judge rules otherwise.
A deposition can serve several functions. First, it may allow the opposing attorney to find out the gist of
the expert’s findings and the methods used to obtain them. Second, it may permit discovery of the other side’s
theory of the case, especially when the expert’s deposition testimony indicates a particular rationale or line of
reasoning. Third, opposing counsel has an opportunity to “size up” the expert, especially in terms of
“dynamism.” Questioning during deposition may reveal how adept the expert is at handling cross-examination
and offer an indication of the impression the witness might make at trial. Fourth, depositions may be used to
impeach the expert witness at trial; if answers to questions at trial are inconsistent with deposition testimony,
the latter may be introduced to expose the contradiction, thus undermining trustworthiness. Alternatively, a
deposition sometimes helps avoid trial because it persuades an opposing attorney to pursue a plea bargain or
out-of-court settlement. Although not relevant to the current subject, a final purpose of a deposition is to
preserve the testimony of a witness who will be unavailable at trial.
Of course, clinicians should answer all deposition questions honestly and fairly. Because of the potential
use of these answers as impeachment weapons, however, a deposition is not the best place to be overly
elaborate. Information that goes beyond the scope of the questions asked should not be volunteered, because it
may come back to haunt the witness. Specifically, examiners should not be lulled by the seemingly less formal
atmosphere of the deposition into accepting casual invitations to speculate beyond their data.
For the same reason, we advise examiners to exercise their right to review the deposition transcript (usually
the witness will be asked if he or she wants to do so at the conclusion of the deposition). Review of the
transcript allows the witness to identify and correct any errors or misstatements that are best clarified prior to
testifying in court. Furthermore, if court testimony does become necessary, clinicians should review the
transcript of deposition testimony very carefully, to minimize the possibility that their courtroom testimony
will contain inconsistencies.

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 (b) Pretrial Conference

We highly recommend a pretrial conference with the attorney who will call the witness, except when (as in
many criminal cases and some custody cases) the expert is retained by the court, when other considerations
may come into play.47 This meeting is often invaluable in planning strategy on direct examination, in
anticipating questions likely to be presented during cross-examination, and in learning about each other’s
attitudes toward the case beyond whatever is learned during earlier telephone conferences and consultations. It
is also the best mechanism for helping the witness decide how to enhance an impression of expertise,
trustworthiness, and dynamism in the courtroom.
Specifically, during the conference the attorney should make clear to the clinician the theory of the case,
what the opposing side will try to prove, how the clinician’s data should be presented, and (if necessary) the
nature of the courtroom process. The clinician should make sure the attorney knows his or her qualifications
(for voir dire), describe the evaluation procedure, identify possible weaknesses in the opinion, provide
assessment of the other side’s opinion, and rehearse the database so the attorney will know what background
information will need to be introduced. The clinician should also critique the attorney’s plans for presenting
the clinical opinion. For example, the clinician may suggest that the more important findings be presented
very early or very late in the testimony, to capitalize on “primacy” and “recency” effects.48
During the discussion of the clinician’s database, it may become clear that the witness feels ethically
obliged to reveal information the attorney would prefer remain undisclosed (e.g., a prior offense or
psychological tests results that are not supportive of the retaining attorney’s arguments). In such a situation,
the clinician should ascertain whether the attorney intends to avoid eliciting the troublesome information; if
so, the clinician may refuse to testify. An alternative solution, which may be superior not only from the
clinician’s but from the attorney’s perspective, is to develop specific questions for direct testimony that allow
the clinician to “explain away” the inconsistent data or provide alternative formulations. This latter strategy
serves as a preemptive strike on facts or inferences that would probably be brought out during cross-
examination anyway, and serves to inoculate the judge or jury against anticipated challenges to the clinician’s
ultimate formulation.49 Most important from the attorney’s point of view, it increases the credibility of the
witness by showing a willingness to reference data that are not consistent with his or her opinion, which is in
line with the obligation to tell “the whole truth.”
Although the conference will probably focus on direct testimony, it may also be used to identify areas best
reiterated on redirect testimony, after cross-examination. Some of these areas will be “rescue points”—topics
on which it is known in advance that concessions will have to be made. In addition, a small number of major
points should be identified for repetition on redirect testimony, to capitalize on recency effects.
Finally, the witness and the attorney should be in agreement with each other on the clinician’s posture with
respect to ultimate-issue questions. As we discuss more fully in § 18.07, the attorney’s inclination will
probably be to ask the clinician questions that are couched in the explicit language of the statutory test or
verdict. These questions will often be prefaced with inquiries about “reasonable medical certainty” or
“reasonable scientific certainty.”50 Although these terms may have some meaning when the clinician is talking
about confidence in the clinical diagnosis or assessment results, the questions will usually be asked so as to cast
the desired legal conclusion in terms of rigorous medical or scientific validity. We recommend that the

737
clinician take steps to avoid being misused in this fashion; to ensure that the flow or impact of direct
testimony is not disrupted, these issues should be discussed and clarified prior to testimony.
Sometimes something more than general discussion about these various points might be advisable. For
example, without overly rehearsing the specific responses to questions (so as to avoid mechanical presentation
at trial), some minimal role playing of voir dire, direct examination, and redirect testimony may be helpful at
this stage. The attorney may even want to role-play the cross-examiner, to give the expert a feel for the types
of questions that the opposing attorney may use to challenge the expert’s credibility.

(c) Voir Dire: Qualifying as an Expert

Voir dire is the first stage of testimony—usually conducted while the jury is present—and consists of an
examination by the attorneys, and perhaps the judge as well, designed to determine the qualifications of the
witness. As discussed in § 1.04(a), under the rules of evidence, “lay” witnesses usually may offer only factual
observations in testimony; “expert” witnesses, on the other hand, may offer inferences, conclusions, and
opinions regarding matters in their fields of expertise. The voir dire establishes the extent and limits of this
expertise.
In terms of the components of credibility noted earlier, the primary focus during voir dire is clearly on
expertise, with trustworthiness and dynamism taking a back seat at this point. Accordingly, when a witness’s
credentials are particularly impressive (or at least are known to be sufficient), the side proffering the witness
wants to put them on display, whereas the opposing side may attempt to downplay them. Indeed, in such
instances the opposing side may offer to stipulate to the expert’s qualifications in an effort to avoid their
psychological impact. If the other side agrees, and the judge accepts the stipulation, the hearing will proceed
to the next stage. Of course, the proffering party need not agree with the stipulation, in which case voir dire
will continue.
If voir dire does takes place, the side calling a witness to testify initially leads the witness through a fairly
predictable series of questions designed to elicit for the decisionmaker information about the witness’s
education, training, and professional experience. As indicated in the previous section, in preparation for this
process the clinician should meet with the attorney, who can rehearse the examination and discuss the
substance of voir dire testimony. Brodsky and Poythress have suggested that the following items be reviewed
prior to trial:

Formal education, including dates and places of degrees awarded.

Practical experience, including internship, residency, and professional positions held; type of work
(teaching, research, administration, or service provision); and kinds of clients served (adult, adolescent,
child; inpatient or outpatient).
Professional certification or licensure; board certification, where applicable.
Membership in professional organizations (e.g., American Psychiatric Association, American Psychology–
Law Society).
Professional publications—books, journal articles.
Prior court experience as an expert and in what kinds of litigation.51

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 Questions dealing with substantive areas of expertise should be tailored to the particular case at hand—
emphasizing, for example, experience or training with children and families in a custody case, or experience
with adult offenders in a sentencing hearing. Alternatively, since the witness probably has the best
understanding of those aspects of his or her training and experience that are most relevant to the issues in
dispute, he or she can provide the attorney with a list of draft questions to review, add to, and edit.
In some cases, clinicians and attorneys might consider devoting part of the voir dire to a brief discussion of
discipline differences—the distinctions between a psychiatrist and a psychologist, a psychologist and a social
worker, and so on—in terms of academic preparation, experience, and training.52 Through such comparisons
and contrasts of disciplines, the trier of fact may better understand the unique strengths and skills of the
proffered expert. This understanding may be particularly important if the opposing side is planning to call an
expert from a discipline traditionally perceived to be of higher status.53 The voir dire questioning might even
encourage the factfinder to view the disciplines as complementary rather than competing in terms of their
contribution to the case at hand.54
Following the litany of credentials on direct questioning, the opposing attorney has an opportunity to
question the witness further. The opposing attorney will usually focus on what the witness is not (“Doctor, as
a psychologist you are not trained in administering and evaluating the effects of medications, are you?”) and
on what the witness did not/could not do (“Doctor, as your training is in psychiatry and medicine, you are not
qualified to administer and interpret neuropsychological tests, are you?”). Predictable areas of emphasis
include the witness’s limited contact with particular populations, lack of training, or lack of experience in the
courtroom. Less common, but equally appropriate for exploration during voir dire, is an inquiry into the
evaluation procedure and data relied upon. Admissibility of expert testimony may be challenged if the
clinician has used procedure(s) “not generally accepted in the field”55 or of unproven validity,56 or if the
clinician has relied on data differing from those on which experts in the field “reasonably rely”57 [see generally
§ 3.07 for a discussion of these terms].
All the testimony described to this point is focused on the “expertise” component of credibility. However,
during cross-examination, the opposing attorney may also try to attack the “trustworthiness” of the proffered
expert. The attorney may inquire about the fees that the witness is collecting in the case, with the implication
being that the clinician is a “hired gun” whose testimony has been bought. This strategy is less common than
might be anticipated, however, since an expert retained by the cross-examining attorney is subject to the same
type of inquiry. If subjected to such a line of questioning, the witness should assert that fees are paid on the
basis of professional time, not for a particular outcome or finding.
Another common ploy is to inquire about the frequency with which the witness has testified for a
particular side (“Doctor, how many times have you testified for the plaintiff in personal injury cases?”). To a
degree, the expert who is asked this type of question is at the mercy of his or her own history of involvement
in the type of litigation in question. However, the innuendo of “bias” can be deflated to some extent if the
witness can honestly state that his or her conclusions have favored the opposing side on several occasions and,
for this reason, were never relied on by the referring party. For instance, a witness might state:

“Although I have testified on behalf of plaintiffs in 11 cases, I have served as a consultant to plaintiffs’
attorneys in 36 cases. Thus I have testified on behalf of plaintiffs in fewer than one-third of the cases in

739
 which I have been consulted by them, because the opinions I formed were not helpful to their cases.”

Replies to challenges on expertise and trustworthiness grounds can also come on redirect examination, in
which the attorney proffering the witness raises these issues again (e.g., fees and customary alignment with
one party) in a way that allows the clinician to discuss them in a more favorable light. However, as noted
earlier, we recommend that attorneys consider raising these issues during the initial voir dire direct
examination rather than waiting for redirect. This approach can enhance trustworthiness by showing that the
witness has “nothing to hide,” thus inoculating the judge and jury from impressions of “bias” that are
“uncovered” on cross-examination. Other approaches to establishing trustworthiness of the witness include
noting membership in professional organizations that have ethical codes governing clinical/forensic practice,
and eliciting the witness’s affirmation of an effort to conduct evaluations that are consistent with professional
guidelines.
Mental health professionals occasionally attempt to bolster their credentials with claims or elaborations
that come off as phony. One psychologist received his doctorate from a nonaccredited program, but instead of
modestly conceding the point during cross-examination, he launched into a defensive narrative that doctoral
training at nonaccredited programs was widely regarded as superior to that provided at accredited programs.
This same expert averred that he had worked in the “field of psychology” for 15 years—an assertion that was
technically true, but appeared at best to be a distortion when the cross-examiner brought out that for 12 of
these years he had worked as a nonprofessional, as a paraprofessional, or as a student.
We strongly discourage any such efforts to enhance perceived expertise through fabricated or contrived
credentials or half-truths. Mental health professionals have an ethical responsibility to avoid
misrepresentation, no matter how cleverly disguised. Moreover, judges and jurors will probably see through
such contrivances and attribute them to lack of confidence or, worse, to the witness’s dishonesty.
Trustworthiness is perhaps the most important component of credibility,58 and to compromise personal or
professional integrity is probably the single greatest error a witness can make in court.
Following voir dire, the attorney calling the witness to testify may ask that the judge acknowledge that the
clinician is an expert witness. This decision is generally entirely within the discretion of the trial court; as
noted earlier, judicial preferences concerning clinicians of different training may be influenced not only by the
clinicians’ credentials, but also by the type of litigation involved. If designated an expert, the witness is allowed
to offer inferences, opinions, and conclusions that go beyond the data. If not, the clinician may still (it is
important to note) testify about observations and descriptive data. Not infrequently, judges will take an
intermediate position—allowing clinicians whose credentials have been challenged to testify as experts, but
instructing the jury that their limits in training or experience should be considered in addressing the weight to
give their testimony.
As the foregoing discussion illustrates, voir dire testimony is typically not particularly difficult for the
witness. The issues to be covered are prepared for in advance, and many of the challenges from opposing
counsel are predictable. Clinicians should present themselves as confident and enthusiastic about their
professional identities, matter-of-factly stating for the court what they are and what they are not, but they
should remain nondefensive and detached during debate about their “expert” status, leaving that issue up to
the attorneys and the court.

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 (d) Direct Testimony

Following voir dire, the witness undergoes direct examination by the attorney who has called him or her to
court. Direct testimony involves describing the evaluation procedures conducted, the data obtained, and the
opinions formed by the examiner.
A popular way to structure the body of the testimony, ideally worked out with the attorney prior to trial, is
modeled on an inverted pyramid: The expert begins by describing evaluation techniques and the data those
techniques have produced; then proceeds to inferences; and ends with the “peak,” the summary conclusion. If
tests or laboratory procedures were used, the clinician should be prepared to discuss their validity and to
describe the methods of test development. As noted throughout this volume, the clinician should not hesitate
to describe uncertainty in the process of opinion formation. Again, this latter recommendation not only is
ethically mandated,59 but also tends to “steal the thunder” of the cross-examining attorney (and thus minimize
the impact of questioning like that depicted in Problem 10.1).
As to the style of this testimony, it is probably best to avoid staccato-like questions and answers that come
across as rehearsed. The dynamism of the expert, as well as the information he or she possesses, is best
displayed through a narrative style of testimony that enables the clinician to reference and synthesize various
findings from the evaluation in a fluid manner. (This style of testimony is also encouraged by the general rule
that attorneys conducting direct examination may not ask “leading questions,” i.e., questions that suggest the
answers.) In general, the same suggestions we have made with respect to writing reports—avoiding
information overkill, eschewing unexplained jargon, separating facts from inferences—are useful here as well.
When the fundamental facts of a case are in dispute, an attorney may wish to establish the litigant’s
credibility by seeking to have the clinician affirm his or her honesty and candor. Although clinicians may have
something legitimate to say about deception [see § 3.06], they should generally avoid being used as “lie
detectors” [see § 3.07]. The best tactic is to leave the credibility issue up to the trier of fact. However, this
admonition does not prevent the clinician from alluding to third-party information corroborating that
provided by the examinee, or from offering feasible clinical explanations for contradictions or inconsistencies
in the database. In addition, analogous to the discussion of report writing, the clinician can assume
hypothetically each of the competing factual situations and report formulations consistent with each.
With careful preparation, direct examination is usually the smoothest stage of testimony. The clinician can
expect open-ended questions that allow considerable latitude in responding. The only interruptions will be the
succession of questions from the attorney and, infrequently, objections from opposing counsel [the latter are
discussed in more detail in § 18.06(f)].

(e) Cross-Examination

Cross-examination, which follows direct testimony, is the stage that is most trying for experienced and
inexperienced witnesses alike. Gone is the friendly, understanding expression of the attorney who has led
direct testimony; in its place is the scowl or piercing stare of the opposing attorney, whose tone of voice and
looks of astonishment convey to the jury the “unbelievable” nature of the clinician’s testimony. A variety of
verbal and nonverbal ploys may be employed in an effort to confuse or discredit the witness, the testimony, or

741
the witness’s profession. In place of the logical progression of open-ended questions that permit narrative
answers are narrow, constricting inquiries that push for brief, fragmented speech (indeed, leading questions
are the staple ploy of the cross-examiner). The questions will also emphasize vulnerable points in the clinical
findings, and attempt to distort the very message the witness is trying to convey. The cross-examining
attorney’s perspective may well be that whatever the witness did in the evaluation was insufficient, and that
whatever the witness did not do was essential. Also emphasized will be what the witness does not know.
In general, the most important way of coping with this type of attack is careful preparation. As indicated
earlier, conducting a careful evaluation, becoming familiar with the validity of tests used, going over one’s
deposition testimony, and consulting with the referral attorney should be part and parcel of the witness’s
pretrial work. Once on the stand, a second important response, also noted earlier, is to acknowledge
controversial points and concede minor or indefensible ones—although not at the expense of a balanced
presentation that includes positive support for the witness’s position.
Following these general recommendations may not be enough to protect one’s credibility, however,
particularly from the expertise and trustworthiness perspectives. The art of cross-examining the mental health
expert witness has been the subject of considerable writing.60 Thus, the attorney has numerous sources to call
on in preparing an attack on witness credibility. At the same time, there is a significant literature suggesting
responses to specific cross-examination ploys.61 It is beyond the scope of this chapter to review the full range
of such ploys, but this section describes several of the more common ones and indicates appropriate responses
by a mental health witness. Readers who anticipate appearing frequently in court as expert witnesses may wish
to become more intimately familiar with the literature.

(1) The “Infallibility Complex” and “God Only Knows” Gambits

To overcome any perception the jury may have of the witness as infallible, the cross-examining attorney may
ask a question designed to suggest fallibility. For instance, the attorney may ask the witness about the
relevance of some very new, or very obscure, research that the witness will probably not have seen. This ruse,
the attorney hopes, will result in an “I don’t know” response. Or the attorney may ask questions to which there
is not a sure, easy, or precise answer (e.g., “What really causes schizophrenia?”).
When confronted with the “infallibility complex” or “God only knows” gambits, the witness can use an
“admit–deny” response. With this response, the witness concedes the attorney’s narrower point, but does so in
a way that demonstrates some knowledge or mastery of the subject. Here is an example:

Q: Doctor, do you think that the new research by Smith and Jones might be relevant here?
A: The studies having the most direct bearing on this issue are those by Holmes, Dawson, and Wortman. I
don’t recall seeing citations to Smith and Jones. If you have the paper, perhaps I could look it over
during a recess.

Rather than simply conceding ignorance of the Smith and Jones study (which would be, of course, an
acceptable response), the witness answered in such a way as to affirm expertise in the area generally.
Furthermore, the witness’s final statement—the offer to review the paper during a court recess—demonstrates
an openness to new information that may enhance the witness’s trustworthiness in the eyes of the jury; it will

742
also force the attorney to withdraw if he or she has simply posed a misleading citation for purposes of
confrontation.
Here is a similar response to the “God only knows” gambit:

Q: Doctor, what really causes schizophrenia?

A: Research has implicated a number of factors that contribute to schizophrenia. There is some evidence
for a genetic contribution, as biological relatives of people with schizophrenia are at much greater risk
for the illness than are persons selected randomly. Stressful life experiences may also contribute in some
way. Unfortunately, the state of the science at present does not permit us to identify the precise cause or
causes of schizophrenia in a particular case.

Again, the witness admits ignorance in such a way as to appear well informed and to make the jury aware of
the complex nature of the subject.

(2) “Yes–No” Questioning

With the next gambit, the attorney attempts to box the witness in by phrasing questions in such a way as to
force a “yes” or “no” answer. For instance, the attorney might ask, “Isn’t it true that predictions of
dangerousness are very inaccurate?”; then, when the clinician attempts to answer in an explanatory fashion, the
attorney will cut off the answer with “Doctor, a simple yes or no would suffice.” In response to this type of
questioning, the clinician should be assertive and state, when true, that a “yes” or “no” response would be
inappropriate or misleading. If the attorney presses for a yes–no answer, the witness may appeal to the judge
(“Your Honor, I believe that an answer of ‘yes’ or ‘no’ without explanation would be misleading”), who will
either instruct the witness to answer the question or instruct the attorney to rephrase it. In any event, the
other attorney will be alerted to clear up this matter with clarifying questions on redirect examination.

(3) The “Unreliable Examination” Gambit

Often the attorney will question the witness about the uncertainty of his or her findings (questionable validity
of diagnoses or specific tests, low accuracy of predictions, etc.). This gambit can be dealt with in numerous
ways. As noted previously, the witness can simply concede the degree of inaccuracy or unreliability that exists.
Such concessions, if made nondefensively, convey a sense of honesty and candor that the judge or jury will
appreciate. Although ideally they would be made during direct examination, they can often be used to the
witness’s advantage even on cross-examination, through what is known as the “push–pull” response. With this
response, the witness does not simply concede the point; rather, he or she concedes even more than the
attorney asked for, so that it appears to be a point the witness wants to impress on the jury, not one the
attorney has forced the witness to make. In other words, the witness concedes substantive ground, but
reclaims territory in the area of trustworthiness. Here is an example:

Q: Doctor, isn’t it true that the use of actuarial tools like the Violence Risk Appraisal Guide has been
seriously questioned by some psychologists?

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 A: No psychological tool, the Violence Risk Appraisal Guide included, is perfectly valid. It is important
that you [the jury] not place undue weight on any one of the particular test results I’ve described, but
consider all of the information as a whole.

Conceding the substantive point about the Violence Risk Appraisal Guide, the witness recaptures the possible
loss of credibility by extending the point to other findings as well.
However, simple concessions and the push–pull response should be used only when the substantive
concessions being sought are reasonable. When the attorney asks for too much, the appropriate response is to
correct him or her.

Q: Doctor, isn’t it true that psychiatric diagnosis is generally unreliable? Isn’t it true that you psychiatrists
rarely agree on when somebody is, or is not, suffering from schizophrenia?
A: No, that is not true. The reliability of a general diagnosis of schizophrenia is quite good, particularly if a
structured psychiatric interview like the one I used in this case is employed.

(4) The “Subjective Opinion” Ploy

The cross-examining attorney sometimes asks whether the witness has conducted systematic research
examining the reliability and/or validity of his or her own clinical opinions and judgments. This “subjective
opinion” ploy attempts to impress upon the jury that the clinician’s formulations and opinions are simply
“what the witness thinks,” rather than findings with scientific or clinical legitimacy.
Responses to this ploy should include a brief statement of the scientific underpinnings of the clinician’s
training and a modest statement of personal and professional integrity to this effect: “Because I am a
professional with a particular personal set of values, I am careful in the collection and analysis of data to
ascertain that my clinical formulations are consistent with known data or widely accepted theory,” which
should then be described. Of course, if in fact the witness’s clinical judgments have been the subject of
systematic study, the results of such study should be described.

(5) The “Loaded Question” and “Lawyer as Expert” Ploys

Occasionally an attorney may intentionally distort information, especially if he or she is desperate. For
instance, the attorney may misstate what the witness has said or agreed to in an earlier response, usually by
“loading” the prior statement with additional information. If a witness has previously agreed to assertions X, Y,
and Z, a later question by the attorney might be: “Doctor, you earlier testified that W, X, Y, and Z were true.
Doesn’t that mean that . . . ?” Or the lawyer might graciously volunteer to testify for the clinician regarding
the clinician’s own field (e.g., “Doctor, doesn’t a standard psychological evaluation consist of . . . ?”). This
gambit sets up the clinician for later questions that depend on the attorney’s definition of what is “standard.”
The “loaded question” and “lawyer as expert” ploys primarily require good listening by the witness. If
clinicians are familiar with their written reports (as they should be) and are careful in their own testimony,
they will be able to pick up on the gratuitous “facts,” “findings,” or concessions that such attorneys may
attribute to them when they load their questions. At such points, clinicians should clarify what they do or do

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not agree with, or what they have or have not written in their reports or stated in their testimony. The ability
to respond in this manner sends a powerful, unstated message to the attorney who tries such an approach: “I
know the facts of this case, I know what I wrote in my report, and I know what I testified to. Do not
misrepresent any of this again.”
In particular, under no circumstances should clinicians take the “lawyer as expert” ploy casually. Leading
questions regarding what is “standard,” “acceptable,” or “proper” clinical practice should be scrutinized
carefully. The safest response to such questions is never to answer them with a “yes.” By avoiding simply
agreeing with attorneys’ definitions of standard or proper procedure, clinicians will ultimately force the
attorneys to ask them to define such terms themselves. Then they are on safe ground, for they can offer
definitions of the terms that are broad or qualified enough to encompass procedures they have used. In short,
clinicians should jealously guard their area of expertise and should not cede it to the clever phrases of cross-
examining attorneys.

(6) The “Learned Treatise” Assault

One additional cross-examination tactic worthy of special attention is the “learned treatise” assault. Here the
attorney attempts to undermine the clinician’s testimony by showing that it is contradicted by findings in the
published literature. Typically, the attorney first produces copies of published research or clinical commentary,
such as journal articles or books, and attempts to establish that these documents are by authorities in the field.
Once the credibility of the documents is established, the attorney then reads, or requires the witness to read
aloud in court, excerpts that contradict the oral testimony of the clinician, thus raising questions in the jurors’
minds about the credibility of the witness.
Witnesses may offer different responses to this tactic.62 In many jurisdictions, the rules of evidence
governing learned treatises require that the witness acknowledge the authority of the source before it can be
used as impeachment evidence. In others, evidentiary rules require further that the document must have been
relied on by the witness.63 Because the meaning of “authoritative” is unclear, the witness might first ask the
attorney to define the term and consider any further responses accordingly. At this point, the witness might
refuse to recognize the publication as authoritative. This response carries some risk, however. If the witness
refuses to acknowledge the authority of the source, or admits being ignorant of much of the published
research, he or she may appear uninformed (lacking “expertise”) or even dishonest (not “trustworthy”).
Furthermore, in most jurisdictions the judge or another witness can declare a treatise authoritative
independently of the witness,64 at which point the publication can be used for purposes of impeachment.
An alternative response tactic is for the clinician to accept the proposed document as authoritative and deal
with its alleged contradictions directly. In this way, the clinician can parry the “learned treatise” assault
without resorting to avoidance tactics. Of course, this response is most effectively carried out if the clinician
has anticipated the major issues to be debated. If so, the clinician not only can acknowledge or criticize the
findings as appropriate, but also can provide specific citations to support the position taken.65 Note further
that when a treatise is used to impeach, the witness is always entitled to ask to see it—a move that can
facilitate a reasoned response. For instance, in Problem 18.1 the expert asked about the Fatherhood and
Family Policy book might ask to see it, note that its contents are now over 30 years old, and if sufficiently

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familiar with the book, point to contrary findings in other chapters. Of course, newer research, discussed in §
16.03(b) could also be described.
The witness should also be alert to misuse of an authoritative source. Two anecdotes from our experience
illustrate this concern. In one case, an expert testified that a defendant’s Wechsler Adult Intelligence Scale
(WAIS) Full Scale IQ score of 67 placed him in the lower 2% of the population of persons his age. The
attorney then produced a well-known psychology textbook, which the witness acknowledged as an
authoritative source. At this point the attorney queried, “Doctor, would it surprise you to learn that this
authoritative text indicates that an IQ of 67 is not at the 2nd percentile, but in fact is at the 22nd percentile?”
With this question, the attorney implied that the book asserted that an IQ of 67 is at the 22nd percentile (and
that the psychologist either made a mistake or was lying). But the attorney had not actually said the book
made that assertion, because the question began with “Doctor, would it surprise you to learn that . . . ?”
The lesson here is that witnesses must pay close attention to the phrasing of attorneys’ questions. Two
responses to such questions are appropriate. The first is to ask to see the book, which, as noted previously, the
witness is entitled to do. The other is to answer the question that was asked; in this instance, the response was
“Not only would I be surprised, I would be amazed if an eminent scholar such as the author of that text
allowed an error of that magnitude in his book.” Because the WAIS is constructed to obtain a normal
distribution of scores with a standard deviation of 15 (around a mean of 100), such a statement would be
unlikely from any credible source.
The second anecdote involved questioning about the side effects of a certain drug that the defendant had
taken the evening prior to committing a murder. The attorney produced the Physicians’ Desk Reference
(PDR), which was acknowledged as an authoritative text on medication actions and side effects. The attorney
then queried, “Doctor, isn’t it true according to the PDR that drug X ‘produces hallucinations, disorientation,
confusion . . . [and a litany of other drastic psychological reactions]’?” Here the proper response was to ask to
review the reference, which the attorney permitted, albeit while holding on to the book. The attorney then
asked the witness to read the list of side effects verbatim from the PDR. The witness alertly noted that the
attorney’s finger was covering up the first word of the sentence, which turned out to be “Rarely.” Bringing this
out when reading from the PDR exposed the attorney’s effort to misrepresent what the PDR actually said
about reasonably expected side effects.

(f) Objections and Hypothetical Questions

An “objection” is a motion, usually made by the attorney who is not questioning the witness, to have a
question or answer stricken from the record or modified in some respect. When an objection is made, the
clinician should either not answer the question or, if the objection comes in the middle of an answer, stop
testifying. If the objection is “overruled,” the testimony may proceed. If the objection is “sustained,” the
questioning attorney either rephrases the question or goes on to something different (although the judge or
lawyer may request an answer for the record, out of the presence of the jury, to preserve the objection on
appeal).
Typical objections during cross-examination, made by the clinician’s own attorney, might include
“badgering the witness,” “asked and answered” (suggesting that the cross-examiner has already obtained one

746
answer and is now fishing for a better one), and “irrelevant” (suggesting that the cross-examiner is asking for
information that is not legally material to the case). Often, objections by the witness’s own attorney are
strategic moves designed to allow the witness to catch his or her breath and think through a good answer.
During direct examination, a prominent objection by opposing counsel is designed to prevent the direct
examiner from asking leading questions (again, questions that suggest the answers, often in the format of
“Isn’t it true that . . . ?”). As noted earlier, the leading-question objection is often sustained, because the direct
examiner is supposed to let witnesses speak for themselves rather than put words in their mouths; leading
questions are permitted, however, during the more adversarial cross-examination, and indeed they are the
principal mode of interrogation during this phase of the proceedings. A second type of objection during direct
examination is a challenge to the basis of the expert’s statements. Such objections come in many varieties; as
discussed in § 3.07, they range from objections on “hearsay” grounds and complaints based on the
Constitution to objections that the information forming the basis for the testimony is not “reasonably relied”
on or is not “generally accepted.”
Clinicians should also be alert to the potential use of hypothetical questions by attorneys for either side.
Such questions are usually prefaced by a clear signal (e.g., “Doctor, I’m going to ask you a hypothetical
question”) and consist of a statement of several assumptions, followed by an inquiry as to the clinician’s
opinion about them. Consider this example:

Q: Doctor, I am going to ask you to assume certain facts, and then I want you to tell the jury what you
would conclude about the defendant’s mental condition if all of these facts were true. I want you to
assume that W, X, Y, and Z are true. Given these facts, what would you conclude about the defendant’s
mental state at the time of the murder?

Such hypothetical questions are generally permitted,66 but clinicians should be careful in answering them.
The attorney will usually have arranged the assumed facts in such a way as to force a conclusion or opinion
that supports the theory or verdict being pursued. In doing so, the attorney may (1) exclude factual
information that the clinician knows to exist, (2) include factual information of which the clinician is unaware,
or (3) include as information to be assumed facts not in evidence in the case. In the third of these instances,
the other attorney may successfully object, and the hypothetical question may have to be rephrased. In the first
two instances, the clinician should answer the question but may wish to qualify the opinion or conclusion, if
only to remind the jury that the response is tailored exclusively to the hypothetical question and is not based
on his or her entire information base. Thus the witness might respond to the question above as follows:

A: Assuming only W, X, Y, and Z is difficult for me, because in my own investigation in this matter I found
A and B, as well as C, which contradicts W. However, if I assume only what you stated and disregard
what else I know, a reasonable inference would be R.

The clinician might also appropriately avoid drawing a conclusion or inference if the information to be
assumed is not clear, as in the following response:

A: You have asked me to assume that a neighbor testified that Mr. Doe was acting crazy before the
shooting. Without knowing more about what the neighbor meant by “crazy” behavior, I am not sure

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 what inferences or conclusions I would draw.

Finally, if the hypothetical question is so long and convoluted that a sensible answer would be difficult, the
clinician can ask for clarification or—especially deadly when the question has gone on for ten minutes or so—
politely ask: “Could you repeat the question, please?”
It is worth noting that hypothetical conclusions and inferences not only may be offered in response to
limited questions constructed by the attorney, but may also be volunteered by the clinician on either direct
examination or cross-examination. Situations in which this might be appropriate have previously been
described in the discussions of both report writing and direct testimony.

(g) Impression Management

Up to this point, we have discussed primarily substantive features of expert testimony. Another important
consideration, and one to which many mental health professionals pay insufficient attention, is the image that
clinicians convey through their nonverbal behavior. For better or worse, “dynamism” or charisma is an element
in the structure of credibility. Dress, posture, tone of voice, and a variety of other factors may have a
considerable impact on the impression jurors form of the witness; perceived expertise is not determined simply
by the litany of credentials recited on voir dire. Thus we devote a few words to “impression management.”

(1) Style of Dress

The clinician’s attire should be selected so as to conform to the judge’s or juror’s stereotype of a professional
person. Thus clinicians are advised to dress conservatively when going to court. Dress does not have to be
expensive, but it should be neat. Blue jeans and a sweater may be fine in the private office for conveying a
“low-key” image and making therapy clients feel comfortable, but they are not suitable for the courtroom.
Most simply, novices seeking more specific direction with respect to what they should wear when appearing in
court need look no further than the attorneys who retain them.

(2) Familiarity with Courtroom Protocol

The courtroom is not the place to appear timid, passive, or unsure. Clinicians should learn in advance how the
courtroom is set up and what is expected of them, and should execute the legally appropriate behaviors in a
manner that reflects comfort and familiarity.
For example, the clinician should not wait to be ushered around the courtroom like a lost child. When
called to testify, he or she should stride forward confidently, stopping at the witness stand to face the judge or
bailiff and be sworn in. In giving testimony, the clinician should take time to think through a question, pause
reflectively if necessary, and respond in a clear, even tone. Information should not be volunteered from the
witness stand, but should be provided only in response to questions. The clinician should also know about
typical “objections” made during direct and cross-examination and how to react when an objection is made
[see discussion in § 18.06(f)].

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 (3) Speaking to the Jury

The witness should face the factfinder when answering questions. It is typically easy to face the jury, which
will likely be seated in a box to the witness’s left or right, but it is often difficult to make eye contact with the
judge, who may be behind and elevated above the witness. Thus, when testifying in a bench trial, the witness
may simply have to trust that the judge is making an effort to listen. Good eye contact should be maintained if
at all possible. This advice is important at all times, but perhaps most important during cross-examination.
Opposing attorneys may attempt to interrupt the channel of nonverbal communication between the witness
and the jury in one of two ways. The attorney may approach the witness stand, almost to the point of invading
the witness’s personal space, in order to become a physical obstruction between the witness and the jury. More
subtly, the attorney may wander across the room away from the jury box, speaking in such a low voice that the
witness must look away from the jury to hear the question. The witness will occasionally forget to turn back to
face the jury, and the nonverbal communication will have been severed.
In testimony, as in report writing, the clinician should use language that the jury members can easily
understand. A limited amount of clinical jargon may reaffirm the clinician’s expertise, but any jargon used
should be explained to ensure the jurors’ comprehension.

(4) Powerful Speech

Clinicians who are going to be testifying in court should cultivate a style of speech that enhances their
credibility. They should develop a fluid, conversational tone and a clear, even, and confident voice. Dramatics
are to be avoided, but the witness should be sufficiently personable and animated to maintain the audience’s
attention (dynamism). Also important is the ability to communicate with relatively few hesitations,
“qualifiers,” or “intensifiers”—phenomena that tend to diminish the force of one’s presentation.67 Finally,
although reports and records should be available, credibility is likely to be enhanced when testimony is
delivered with little or no reliance on the report or supporting case documents.

(5) Maintaining Composure

The importance of maintaining composure cannot be overstated. Apart from any substantive concessions
made in testimony, the most damaging thing that can happen to a witness is to become angry, defensive, or
upset. If the witness can be confused or flustered to the point that a powerful speech style is abandoned or
composure is lost, the third component of credibility (dynamism/charisma) will have been undermined.
As indicated earlier, one technique that cross-examining attorneys use to frustrate witnesses is to ask
complex questions to which no simple responses can be given. Rather than grasping for an adequate response
when none is possible, witnesses should ask the attorney to repeat or simplify the question, thus placing the
responsibility on the questioner for clarifying a confusing situation that, after all, is the questioner’s fault.
Attorneys may also engage in argumentative or ad hominem tactics simply to get a rise out of the expert,
caring little for substantive points gained or lost. A witness should endeavor to maintain a polite, respectful
posture toward a hostile lawyer, even in the face of a personal attack. Not only will this composed response
maintain credibility; it may leave the jury with the impression that the lawyer is a “bully,” thereby hurting the

749
lawyer’s credibility.
A final cross-examination technique, used when the witness is conceding a point, is to induce the witness
to adopt an apologetic tone. Unless a witness is admitting an error, however, there is no need for such a tone.
Limits in the technology, data, or precision are not the clinician’s fault; they are simply the way things are.
The clinician may explain limitations in his or her knowledge or formulation, but apologies for the state of the
art and science of behavior are uncalled for.

(6) Conclusion

The import of what has been said about impression management is captured in this passage by Brodsky:

[C]redibility is dependent upon the perception of the witnesses by judges and jurors as likeable, honest, and confident. Note that these three
personality attributes are unrelated to accuracy of the witnesses’ specific observations. However, these attributes are vitally important in being
believed. People believe individuals they like, people believe individuals they see as honest, and people believe individuals who are confident.
The implication of such attributions is that presentation of self in these ways greatly enhances effectiveness on the witness stand.68

As this passage indicates, mental health professionals who engage in forensic work must develop skills for
effective testifying. In part, these skills involve simply being at ease with oneself. But they also can be honed in
various ways. One way to do so is to go to court or search YouTube and watch expert witnesses testify;
observing various models can be very educational. Another good learning exercise is to rehearse expert
testimony with colleagues who play the parts of judge and attorneys; video-recording the exercise should even
further enhance feedback from such a role-playing experience. Although impression management should
never take priority over clinical acuity, we encourage mental health professionals to develop a calm, friendly,
and professional manner for testifying, to maximize the chances that the factfinder will attend to their
testimony.

(h) Lay Attitudes toward Experts: Empirical Findings

Many of the courtroom tactics and impression management strategies described above derive from the
wisdom and intuitions about jury decisionmaking that have accumulated over years of courtroom experience.
Perhaps not surprisingly, research based on both hypothetical cases and reports from individuals who have
served on juries indicate that many of these intuitions are correct. Although it is beyond the scope of this
chapter to provide a comprehensive review of this literature, examples from selected studies are provided
below, because they may be helpful to attorneys in selecting and recruiting mental health experts and to
would-be experts preparing themselves for courtroom testimony.
A central finding of this literature is that “peripheral” aspects of the expert and his or her testimony
matter.69 For example, a survey of jury-eligible adults indicated that potential jurors are inclined to trust local
experts more than those brought in from distant communities or from out of state; this means that experts
who can be made to look as if they are not “one of us” may suffer in terms of credibility.70 The same survey
provided support for the expert witness fee cross-examination technique described in the discussion of voir
dire above. Specifically, respondents’ answers suggested an inverse relationship between the amount an expert
was paid and respondents’ readiness to believe that expert’s testimony.71 A mock-juror study similarly found

750
that very highly credentialed experts who were well paid relative to other experts were particularly ineffective
at persuading jurors.72
Another voir dire cross-examination tactic discussed above is a query about the extent to which the expert
had consistently (or perhaps predominantly) testified for one party in a particular type of case. Some research
findings suggest that, regardless of point of view, prolific testimony undermines trustworthiness. Respondents
in a survey of community adults expressed a greater readiness to believe an expert who “mostly sees patients”
(82%) than one who “mostly testifies in trials” (5%).73 Moreover, mock jurors perceived highly credentialed
experts who had more extensive histories of testifying in court as less honest, trustworthy, believable, and
likeable, and as more annoying.74
Other research, involving actual jurors as research participants, supplements the foregoing comments. One
particularly interesting study in this vein looked at the effects of experts in capital trial and sentencing
proceedings, as reported by 152 jurors from 36 different trials.75 The first series of comments made by these
capital jurors had to do with their general perceptions of expert witnesses, both clinical and nonclinical. On
the whole, the jurors tended to remember defense experts as less credible than prosecution experts, lay
witnesses, or even defendants’ family members (who obviously had a motivation to shade the truth on the
stand). Defense experts were seen as “hired guns,” especially when they disclosed they had received large sums
of money (e.g., $200/hour) for their evaluation and testimony. Explanations that this money was for time
actually spent on the case did not impress many of the jurors, who knew that the prosecution experts were on
salary and who probably did not make nearly that hourly amount themselves. Especially when (as was usually
the case) a defense expert was paid by the state, jurors were galled at the “waste of taxpayer money.”
Other factors that led jurors to distrust or discount expert testimony, whether for the defense or the
prosecution, centered on practical concerns, once again having little to do with the content of the testimony.
Jurors were (rightly) critical of experts who did not spend much time investigating the case, had seen the
defendant only shortly before trial, destroyed recordings and notes, and appeared to be pompous and self-
centered. Another common thread in juror comments was the criticism of experts who seemed to have made
no effort to relate their testimony to the rest of the evidence being presented. Those experts who wove the
physical evidence and the testimony of other witnesses into their testimony were perceived as more credible
than experts who appeared to be popping into the courtroom from their busy schedules and were isolated
from the rest of the defense (or prosecution) “team.”
Finally, whether rightly or wrongly, some jurors felt they knew more about the experts’ subject matter than
the experts themselves. One recurring example of this phenomenon involved expert testimony about the
negative effects of alcohol and drug use. Many jurors dismissed expert opinions on this issue, based on their
own knowledge or stories they had heard from friends or relatives. Similarly, some jurors were irritated by
experts on eyewitness accuracy because of the latter’s suggestion that people cannot trust their senses. Because
this testimony was so contrary to their own beliefs, the jurors believed it was clearly erroneous. Indeed, in
those cases in which the lay jurors felt more knowledgeable than the experts, the term “expert” was often used
pejoratively and equated with quackery.
Again, this study is anecdotal, in the sense that it relied on interviews and included no controls. Research
relying on actual jurors using more scientific methodology provides nuance to many of these conclusions. In
two surveys of participants in civil cases,76 Champagne, Shuman, and Whitaker found that clarity of

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presentation, familiarity with the facts of the case, and impartiality (as connoted by reliance on third-party
information and source of payment) were more important than an expert’s educational credentials,
appearance, and personality, although the latter were not unimportant; they also found that plaintiffs’ experts
were generally perceived as less credible than experts who testified for the defense (perhaps because, it was
speculated, plaintiffs tended to raise novel claims or were associated with frivolous lawsuits).
The finding that credentials are less important than clarity must be tempered by other research that has
varied the complexity of the expert testimony. While this research found, consistent with the foregoing
reports, that experts are most persuasive when their testimony relates to jurors’ constructs about other evidence
in the trial and jurors’ preexisting views, it also indicates that this tendency is reduced in complicated cases.77
In other words, in complex cases, jurors are more likely to give import to the expert’s credentials rather than
the manner in which testimony is presented.
Further, other research indicates that, regardless of complexity, jurors perceive being a “leading expert in
the field” as important,78 and that, when asked to rate the credibility of expert testimony, warmth and
likeability are as important as, or perhaps more important than, competence.79
Degree of confidence can also matter. Several studies indicate that both tentativeness and absolute certainty
or over-reliance on ultimate issue language undermine credibility (suggesting that the best tone is one of
measured confidence).80 At the same time, research indicates that jurors tend to find “clinical” testimony more
persuasive than “statistical” testimony, despite the fact that the latter type of testimony is likely to be less
conclusory in nature.81
These results provide interesting (if somewhat conflicting) food for thought. The clinician who is going to
court, and the lawyer who is presenting the expert, would do well to consider their implications.

18.07. THE ULTIMATE-ISSUE ISSUE

Throughout this volume, we have discouraged mental health professionals from offering opinions or
conclusions couched in the language of the ultimate legal issue. As Chapter 1 showed, philosophical
differences between the law and the behavioral sciences abound. Furthermore, analysis of forensic legal issues
requires not only clinical information, but reference to social and moral policy. Thus the ultimate legal issue
(e.g., a categorical expression as to whether a person is legally sane, competent, dangerous, or fit to be a
parent) lies outside the province of scientific inquiry. Clinicians may provide useful information about the
mental infirmities of an elderly person, but they have no barometer for determining when such infirmities are
sufficient to warrant the appointment of a guardian or conservator who will infringe upon the individual’s
interest in autonomy. Clinicians may provide diagnostic and prognostic information about a criminal offender
at sentencing, but their scientific expertise does not allow them to determine what a proper sentence would be
in light of competing sentencing goals such as retribution, rehabilitation, and deterrence. Conclusions on such
ultimate legal questions are the responsibility of the judge and jury, and clinicians should resist drawing them.
Our analysis and recommendation notwithstanding, the “ultimate-issue issue” remains a salient point of
debate.82 Contemporary practices often encourage, permit, and in some instances require mental health
professionals to address ultimate legal issues in their reports and testimony.83 Thus, to appreciate the
consequences of our position, several questions need to be addressed: From the courts’ perspective, how

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important is ultimate-issue testimony from mental health professionals? What are the various pressures on
mental health professionals to provide such testimony? In the absence of offering ultimate-issue opinions, how
can mental health professionals best demonstrate the relevance (or perceived relevance) of their clinical
findings?

(a) Perceived Importance of Opinions on Ultimate Legal Issues

Avoiding the ultimate legal issue in forensic reports or in testimony would be a relatively simple matter, were
it not for the fact that many attorneys and trial court judges regard ultimate-issue opinions as very important.
This fact is borne out by considerable anecdotal information.84 It is also supported empirically by a survey of
trial judges (n = 59), prosecutors (n = 46), and defense attorneys (n = 26) in Virginia conducted by Redding et
al.85 In this survey, respondents rated the importance of the following eight aspects of mental health expert
testimony as this testimony might be presented in the context of an insanity defense.86

A. Descriptive Clinical Information (e.g., descriptions of the defendant’s behavior as observed by the expert or as reported by others).
B. Clinical Diagnosis (e.g., statements indicating whether the defendant met diagnostic criteria and what the diagnosis would be).
C. Statistical Data on Diagnostic Reliability (e.g., statements indicating the reliability or validity of clinical diagnoses indicated by the expert).
D. Interpretations of the Legal Standard for Mental Disorder (e.g., opinions as to whether the diagnosis or symptoms in the present case
satisfy some legal [e.g., statutory] criterion).
E. Theoretical Accounts of Legally Relevant Behavior (e.g., expert testimony that puts forth theoretical accounts that connect the defendant’s
symptoms and legally relevant behavior).
F. Statistical Crime Data on the Relationship between Clinically and Legally Relevant Behavior (e.g., actuarial relationships between clinical
behavior [diagnosis] and legally relevant behavior [incidence of various types of crimes]).
G. Possible Motives or Explanations for Criminal Behavior (e.g., opinion testimony selecting among different possible motives or
explanations as contributing most significantly to the alleged crime).
H. Ultimate-Issue Opinions (e.g., conclusory statement often couched in terms of the legal standard).

Judges indicated their ratings on the importance of these types of testimony on a 9-point scale, anchored as
follows:

Scale points 7, 8, and 9 should reflect that “you consider the element/item to be essential to dispensing
justice; judgments by the trier-of-fact would be seriously hampered if this element/component were not
included.”
Scale points 4, 5, and 6 should reflect that “you consider the element/item desirable for inclusion in expert
testimony. Justice could be fairly dispensed without this particular feature having to be present, but its
inclusion would perhaps allow for more fully informed decisions.”
Scale points 1, 2, and 3 should reflect that “you consider the element/item either unnecessary,
uninformative, or undesirable as a feature of expert testimony. Its presence would add nothing of particular
significance for the trier-of-fact, and possibly it might have negative impact by confusing or clouding the
issue.”

Table 18.1 lists the mean ratings for each group of respondents;87 also shown are the relative rankings of
probative value for each of the eight aspects of testimony. The three respondent groups were in agreement
that testimony about diagnosis and whether that diagnosis met legal criteria (e.g., was it a “mental disease or

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defect” for legal purposes?) was most important. Indeed, it was considered more important—unfortunately,
from our perspective [see § 1.04(a)]—than even descriptive testimony. Most relevant to the present
discussion, however, are the findings with respect to opinion testimony on the ultimate legal issues. This type
of testimony was ranked relatively highly by both judges and prosecutors, in the “desirable” to “essential”
range. Ultimate-issue testimony was rated somewhat lower by defense attorneys, with a mean rating
indicating that such testimony is “desirable.” Ancillary analyses carried out by Redding et al., however,
indicated that desire for ultimate-issue testimony was negatively associated with legal experience,88 suggesting
that “experience with cases involving formal psychological evaluations may lead lawyers and judges to attach
less value to conclusory testimony from mental health experts.”89

TABLE 18.1. Legal Experts’ Rated Importance of Eight Types of Mental Health Expert Testimony in Insanity Defense Cases
Mean ratings of Rank order of ratings of
Type of testimony Judges Prosecutors Def. atys. Judges Prosecutors Def. atys.

A. Descriptive 6.14 5.58 6.50 5 5 4

B. Clinical Diagnosis 7.29 6.93 7.96 1 2 1
C. Statistical Data: Reliability of Clinical 6.90 6.12 4.77 4 4 7
Diagnosis
D. Mental Illness: Interpreting Legal Standard 7.05 7.28 7.62 2 1 2

E. Theoretical Accounts of Criminal Behavior 5.64 4.42 7.44 6 6 3

F. Statistical Data: Associations between Clinical 4.17 4.17 4.42 8 7 8
Indices and Crimes

G. Differential Weighting of Competing Motives 4.59 3.98 5.62 7 8 5

or Explanations

H. Ultimate Opinions on Defendant’s Legal 6.93 6.71 5.31 3 3 6

(In)sanity

Note. Statistically significant differences in ratings were observed for testimony types B, E, and G.
Adapted from Richard E. Redding et al., What Judges and Lawyers Think about the Textimony of Mental Health Experts: A Survey of the Courts
and Bar, 19 BEHAV. SCI. & L. 583, Table 2 (2001). Copyright 2001 by John Wiley & Sons, Ltd. Adapted by permission.

(b) Pressures to Address Ultimate Legal Issues

Numerous pressures, some subtle and some not so subtle, push mental health professionals in the direction of
ultimate-issue testimony. The most prominent pressure is the one just described: the belief on the part of legal
professionals that such testimony is an important aspect of the expert’s presentation. As reflected in the
Redding et al. survey and in anecdotal reports,90 attorneys who want a particular verdict are inclined to prefer
such testimony. This pressure may be exacerbated if there is any type of positive relationship between the
clinician and the attorney seeking clinical assistance. Brodsky and Poythress have noted:

Mental health professionals who testify regularly find themselves subjected to pressures to join the attorney in the adversarial process. After
all, the attorney who has engaged the experts is the person with whom the personal relationship has been established. A sense of loyalty
exists. . . . It is not unusual, therefore, for some experts to find themselves committed to defending “their” attorney’s position in a fierce and
vigorous manner.91

This “allegiance effect” has been demonstrated in a number of studies.92

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 The legal profession’s desire for conclusory testimony has other effects as well. In most jurisdictions, it has
led to legal statutes and rules of evidence that permit or require the examining clinician to reach a conclusion
on the ultimate legal issue (with the most prominent exception to that rule being the federal rules’ prohibition
on ultimate-issue testimony in insanity cases, discussed further below).93 Clinicians working at state forensic
facilities may feel further pressure from department or facility policies dictating that such opinions be
generated. These policies (which probably reflect explicit or implicit judicial preferences) might be resisted in
rare cases, but usually not without creating some subjective concerns over job security.
Economic considerations might also affect clinicians in private practice. If their livelihood depends on
attracting a certain amount of forensic evaluation business, they may feel that their “market value” will
diminish if they too strenuously resist providing opinions and conclusions that may be easily obtained
elsewhere.94 This pressure might explain why one clinician was willing to diagnose a defendant, charged with
murder, with “urban survival syndrome,” and why another, in the highly publicized trial of Jeffrey Dahmer,
was willing to state that the defendant suffered from metaphorical “cancer of the mind.”95 If clinicians are
willing to make such pronouncements, they presumably would have no difficulty mouthing legal language.
The dynamics of the courtroom may also seduce clinicians into addressing questions that are properly
beyond their expertise. The process of voir dire is a public statement of professional expertise by the witness—
a statement subsequently endorsed by the trial judge’s official proclamation that the witness is an expert on
issues before the court. Thus a clinician might feel it incongruent to demur with “I have no opinion” at just
the point when the issues of greatest concern are raised. In fact, Bradley’s research suggests that persons who
have openly professed expertise will guess rather than admit ignorance in response to questions arguably
related to their areas of expertise, even if the questions are virtually impossible to answer.96
Finally, of course, clinicians may be willing to offer ultimate-issue testimony because they believe, contrary
to the arguments made in § 1.04(a), that there is no ethical or legal prohibition against doing so. Historically,
clinicians have operated with crude and erroneous diagnostic decision rules (e.g., psychosis equals insanity), on
occasion expressing exasperation that jurors might disagree with their professional judgments. One
psychiatrist’s commentary is illustrative: “[I]f a jury found that the accused was not insane, then it was a fact
that he was not insane, no matter what any number of medical men might say! What a source of confusion.”97
The courts have sometimes fed these beliefs. Even when legal rules prohibit ultimate-issue testimony, as
Federal Rule of Evidence 704(b) does with respect to testimony about whether a criminal defendant was
“unable to appreciate the wrongfulness of his conduct,” the courts often allow experts to say anything short of
mouthing the legal test language. For instance, one federal court permitted an expert in an insanity case to
state that the defendant’s mental disease “affected his appreciation of his actions.”98
In summary, there are various inducements pushing the mental health professional to give ultimate-issue
testimony. The precedents for doing so come not just from lawyers, but from the established practices of
psychologists and psychiatrists, who pass the tradition on to their protégés through the processes of
socialization and training. Because of competition among the various disciplines, none can unilaterally impose
a “gag” rule on its members without risking forfeiture of its share of the business. Thus, in spite of a growing
number of hortatory appeals from legal and clinical academicians, there is little movement in the law toward
imposing formal restrictions on these witnesses.

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 (c) Resisting the Ultimate-Issue Question

We suggest that such a movement should take place. “Since it is not within the professional competence of
psychologists to offer conclusions on matters of law, psychologists should resist pressure to offer such
conclusions.”99 Although some disagree,100 we believe that this recommendation of the American
Psychological Association’s Task Force on the Role of Psychology in the Criminal Justice System is applicable
to all mental health professionals and in virtually all litigation. Mental health professionals do have
considerable expertise in their own fields of study—for example, in identifying and describing abnormal
behavior, providing information about etiology and prognosis, and offering theoretical formulations that
provide the factfinder with feasible psychological explanations for complex human behavior. However, they do
not have the expertise, nor are they charged with the responsibility, to make truly ultimate legal judgments
such as whether someone is incompetent or insane—judgments that involve moral values and the weighing of
competing social interests.
Because we are encouraging a posture that is unconventional by current standards, and one not likely to be
well received by the courts, it is incumbent upon us to suggest practical methods of implementation. As a
predicate for doing so, it should first be noted that the position advocated here requires only that the mental
health professional make openly and candidly the same concessions that a good attorney could extract through
careful cross-examination. Few knowledgeable clinicians would maintain, under close questioning, that they
are experts in moral decisionmaking or that such decisions can be made scientifically.
Moreover, a careful analysis reveals that this posture may be used to advantage. For instance, a denial that
ultimate-issue opinions are within the province of the mental health sciences can be an effective rebuttal to
such opinions from the opposition’s witness. Indeed, if one witness tries to defend the indefensible position
(that clinicians are experts in drawing legal conclusions), but the other witness readily concedes otherwise, an
advantage in trust goes to the second witness. If, on the other hand, both sides concede the point, ultimate-
issue opinions may be discarded without loss—leaving the experts free to develop their data, observations, and
theoretical formulations, and leaving arguments and persuasion to the attorneys.
That prescription does not mean that clinicians should avoid conclusions that approach the ultimate issue.
In this regard, consider Gutheil’s suggestion as to the type of testimony that should be proffered in an insanity
case.101 Gutheil wrote:

The witness should avoid stating the ultimate issue (“Mr. Jones is insane”) but should instead present the opinion in operational terms (“Mr.
Jones suffered from a delusional disorder that, in my opinion to a reasonable degree of medical certainty, impaired his ability to appreciate
the wrongfulness of his conduct in the following manner, etc.”).102

Although one might quibble with the recitation of the “reasonable medical certainty” mantra,103 the
important aspect of this example opinion is the way the clinical findings are described vis-à-vis insanity test
language (which, as noted above, usually focuses on whether the defendant lacks “substantial” capacity to
appreciate wrongfulness). The phrasing suggested by Gutheil indicates that some clinical evidence consistent
with impaired capacity was obtained. However, the expert does not offer any conclusion about whether this
quantum of clinical evidence satisfies the legal requirement that Mr. Jones “lacked substantial capacity” or
rendered him categorically “unable” to appreciate. This format for testifying, while touching on the specific
legal criteria, is consistent with the notion that mental health experts do not have the requisite tools and

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expertise for determining when such criteria have been met, and is not inconsistent with court decisions,
noted in the previous section, interpreting the federal ultimate-issue ban.104
Gutheil’s approach is adaptable to any of the legal referral questions discussed in this text. In an evaluation
regarding involuntary hospitalization, behavioral observations and third-party reports of behavior suggesting
that the respondent is showing a recurrence of symptoms associated with previous suicide attempts may be
cited in support of the opinion that “Mrs. X is currently experiencing symptoms of the type that increase the
likelihood that she may harm herself.” In a guardianship assessment, recent loss of the ability to perform the
arithmetic operations needed to manage money, and recent incidents documenting foolish and obviously
wasteful spending, may provide a basis for concluding that “Mr. J’s ability to manage his own finances has
been adversely affected due to diminished cognitive abilities.” Without concluding that a specific event caused
the impairment, an examiner in a personal injury case might conclude that “based on clinical testing and
extensive third-party information, there is evidence that Mrs. P’s ability to perform the logical, reasoning,
computational, and organizational activities required in her job have diminished substantially since [the date
of the alleged traumatic event in question].”
Testifying in the fashion described here may help protect the forensic examiner from being dragged into
the proverbial “battle of the experts” that results from diametrically opposed ultimate-issue opinions. Under an
ultimate-issue ban, clinicians’ reports are likely to offer something that both parties can use, and attorneys are
more likely to focus on clinical findings and data that support their respective arguments. Furthermore,
because it incorporates terms from the specific legal criteria, Gutheil’s approach may enhance the trier of fact’s
understanding of the clinical evidence. At the same time, it will remain for the legal decisionmaker to sift
through the sometimes complex clinical testimony to determine the appropriate outcome for the case. This,
we think, is as it should be.
Although the posture we propose thus has practical advantages, it also clearly has disadvantages. As already
noted, pressure to form and provide ultimate-issue opinions will come from judges who do not want the
responsibility for making tough moral decisions alone, from attorneys who are accustomed to using “expert
opinions” to sway the jury, and from statutes or hospital policy dictating that opinions on legal issues be
developed. Recognizing that there may be situations in which clinicians will not be able to resist these
pressures, we strongly recommend the following tactics.
First, clinicians should try to define exactly what they mean when they use legal language. Thus, for
instance, if the word “sane” must be used, clinicians should link it to the appropriate test and then explain how
they understand each component of the test. Even if, as in Gutheil’s example above, the clinician only uses
penultimate language about whether the defendant could “appreciate” the wrongfulness of his or her conduct,
the clinician should explain what he or she means by the word “appreciate”; if that word has been defined by
case law in the jurisdiction, the clinician can point out how his or her definition of “appreciate” differs (if at
all) from the court’s. In this way, the clinical nature of the testimony will be driven home to the factfinder.
Similarly, clinicians should make clear that ultimate-issue opinions are not derived from scientific inquiry.
In reports and testimony, they can state that such opinions are not scientific determinations, and that the
evidence they have to offer should be considered advisory only.105 In testimony, clinicians should also be
careful in responding to questions about “reasonable medical certainty” or “reasonable scientific certainty,” and
should perhaps volunteer that such statements relate more to the clinicians’ subjective confidence in their

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findings than to a firm basis in science for the opinions that follow.106 In short, it should be clear that such
opinions, if given, will not be offered for more than they really are—judgments based in common sense and
personal moral values. These steps, we believe, will encourage more ethically sound testimony by mental
health professionals and more independent decisionmaking by the trier of fact.
On the question of the ultimate legal issue, the relationship between the law and the mental health sciences
invokes the analogy of a couple in psychotherapy who are locked in an overly dependent relationship. The
legal system resists dealing with problems of its own by demanding that mental health professionals accept
responsibility for them, conferring special status as an inducement. For their part, mental health professionals
experience an increasing awareness of the unreasonable demands being made, but are unsure how to break the
bond. Although both feel ambivalence, it is a relationship with old roots and considerable inertia. Change,
when attempted, is slow to take effect and is usually resisted. It is our hope that suggestions in this volume for
changes in the relationship will contribute to a weaning that is long overdue.

BIBLIOGRAPHY

STEVEN BABITSKY & JAMES MANGRAVITI, CROSS-EXAMINATION: THE COMPREHENSIVE GUIDE FOR EXPERT WITNESSES (2003).
Marcus T. Boccaccini, Phyllis P. Kwartner & Paige B. Harris, Testifying in Court: Evidence-Based Recommendations for Expert-Witness
Testimony, in LEARNING FORENSIC ASSESSMENT 506 (Rebecca Jackson & Ronald Roesch eds., 2d ed. 2016).
STANLEY L. BRODSKY, TESTIFYING IN COURT: GUIDELINES AND MAXIMS FOR THE EXPERT (2d ed. 2013).
STANLEY L. BRODSKY & THOMAS G. GUTHEIL, THE EXPERT EXPERT WITNESS: MORE GUIDELINES AND MAXIMS FOR TESTIFYING I.
COURT (2d ed. 2016).
COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY (David Faust ed., 6th ed. 2012).
FORENSIC MENTAL HEALTH ASSESSMENT: A CASEBOOK (Kirk Heilbrun et al. eds., 2d ed. 2014).
KIRK HEILBRUN, THOMAS GRISSO & ALAN GOLDSTEIN, THE FOUNDATIONS OF FORENSIC MENTAL HEALTH ASSESSMENT (2009).
MICHAEL KARSON & LAVITA NADKARNI, PRINCIPLES OF FORENSIC REPORT WRITING (2013).
Tess M.S. Neal & Margaret Bull Kovera, Harnessing the Science of Persuasion for Expert Witness Testimony (2015), available at
http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015-
sac/written_materials/32_1_harnessing_the_science_of_persuasion.authcheckdam.pdf.
RANDY K. OTTO, RICHART L. DEMIER & MARCUS T. BOCCACCINI, FORENSIC REPORTS AND TESTIMONY: A GUIDE TO EFFECTIVE
COMMUNICATION FOR PSYCHOLOGISTS AND PSYCHIATRISTS (2014).
Randy K. Otto, Susan L. Kaye & Allen K. Hess, Testifying in Court, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 733 (Irving B. Weiner &
Randy K. Otto eds., 4th ed. 2014).
Irving B. Weiner, Writing Forensic Reports, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 711 (Irving B. Weiner & Randy K. Otto eds., 4th
ed. 2014).

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CHAPTER 19

Sample Reports

19.01. INTRODUCTION

This chapter contains 19 sample reports, many of them based on actual cases. They are included in this book
primarily for two reasons. First, they provide concrete illustrations of the types of information we think should
be communicated to the courts in the subject areas covered in this book. Second, they demonstrate application
of the report-writing guidelines set out in the preceding chapter [see § 18.05(b)]. The editorial comments that
follow each report highlight the ways in which the samples illustrate these substantive and communicative
objectives; they also note other interesting legal and clinical issues raised by the reports, including ways they
could be improved.
We do not offer a report on each of the subjects covered in this book, both because of space considerations
and because reports on some subjects (e.g., the various competencies) will be similar in tone even if the
specific legal issue addressed varies. However, we do provide at least one sample report for each chapter on
substantive legal issues (Chapters 6–17). The reports address the following topics: competence to proceed
(both adult and juvenile); competence to plead guilty, to confess, and to waive an insanity defense; mental
state at the time of the alleged offense; commitment as a sexually violent predator; long-term dangerousness in
the criminal context; short-term dangerousness in the civil commitment context; competence to handle
finances; employment-related mental injury; reasonable accommodation under the Americans with
Disabilities Act (ADA); eligibility for Social Security; immigration status; transferability of a juvenile; review
of disposition in an abuse case; custody and visitation rights; and the educational needs of a child who may be
eligible for services under the Individuals with Disabilities Education Act (IDEA).
Before we begin presenting the reports, a brief summary of what has been said in this book about
communicating with the courts—whether the communication is written or oral—may be helpful. Above all, it
should be remembered that forensic reports and testimony are intended for a lay audience interested in
information relevant to specific legal questions. The clinician should either avoid clinical jargon or explain it if
it is used. The expert should also generally avoid giving gratuitous opinions on questions that have not been
asked. Throughout, the expert should strive for clarity and conciseness. It also bears emphasizing that writing
a report and giving testimony require thought and preparation. Regardless of the legal issue presented, the
clinician should develop an outline to make sure that the presentation of the information is organized,
addresses each issue raised by the referral source, and informs the reader of the underlying bases for each
conclusion. When possible, “facts” or “data” should be separated from “inferences” and “opinions.” Sources
should always be attributed.
Finally, clinicians should always be sensitive to the limits of their expertise. Speculation should be
identified. Most importantly, because of their scientific nature, definitive conclusions as to whether a legal test

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or standard is met should be avoided unless (as discussed in Chapter 18) the legal system demands them.
The reports below attempt to achieve these objectives, although they may not always be successful at doing
so. They follow a similar sequential format: subject name, date of birth, date of referral, referral issues, data
sources for the evaluation, relevant personal history, presentation of clinical data, and discussion of the legal
issues (in those reports based on actual cases, identifying information has been changed to ensure
confidentiality). Aside from this similarity in structure, however, the format varies considerably. The clinician
will soon develop a report-writing style suited to his or her personal needs; we would only reemphasize the
importance of organization, both to assure that the report is understandable to the nonclinicians who are its
primary audience, and to assist the clinician in assuring that all relevant issues have been addressed.

19.02. COMPETENCE TO PROCEED [CHAPTERS 6 AND 14]

(a) Keith Stiller Report

NAME: Keith Stiller

D.O.B.: April 14, 1975
DATE OF PRIMARY INTERVIEW: August 19, 2012
LEGAL ISSUE: Competence to proceed

IDENTIFYING INFORMATION; NOTIFICATION; REFERRAL: Keith Stiller is a 37-year-old

single white male who was referred by his public defender, Kelly Bailey, for evaluation of his competence to
proceed. Documents provided by Ms. Bailey indicate that the defendant is currently facing charges of
aggravated battery stemming from allegations that he assaulted his live-in girlfriend during the course of a
domestic dispute that occurred in their apartment on June 5, 2012. Ms. Bailey reported that she was
requesting the evaluation because Mr. Stiller had a tendency to ramble and jump from topic to topic.
This writer evaluated Mr. Stiller in the Ferman Road Jail on August 19, 2012. Before the evaluation began,
its nature and purpose were explained to the defendant, who was specifically instructed that any information
he provided would be included in a report that would be distributed to the prosecutor, defense attorney, and
judge. Mr. Stiller demonstrated a basic understanding of this notification and agreed to participate in the
evaluation.

SOURCES OF INFORMATION: The following sources of information were relied upon in conducting
this evaluation:

Clinical interview with Keith Stiller (08/19/12, 1.50 hours).

Administration of MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA)
(08/19/12).
Review of court order authorizing forensic evaluation (08/19/12).
Review of arrest warrants and reports (08/19/12).
Review of defendant’s jail medical record (08/19/12).
Telephone interview with attorney Kelly Bailey (08/05/12, 0.25 hours).
Telephone interview with Alison Kestler, the defendant’s mother (08/22/12, 0.33 hours).

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CURRENT CLINICAL FUNCTIONING/BEHAVIORAL OBSERVATIONS: Keith Stiller appeared
his stated age. The defendant was adequately groomed; he was wearing jail-issued clothing; and he was
oriented to time, place, and person (i.e., he knew when it was, where he was, and who he was). When asked
about his current functioning, Mr. Stiller indicated that he had begun work as a kitchen trusty the week
preceding his contact with this writer (a fact verified by the officer working in his unit). He insisted that he
had made an adequate adjustment to the jail and reported no difficulties in sleeping, energy level, mood,
attention, concentration, or memory, or in interacting with jail officers or other inmates. He also denied any
thoughts of harming himself or harming others.
Despite these claims by Mr. Stiller, there were several indications of a severe and persistent mental disorder
that affected his thought content, thought process, attention, concentration, and mood. For instance, Mr.
Stiller’s speech was rapid and pressured, and his thought process was tangential and circumstantial. That is, he
provided overly detailed information in answer to virtually every question; he appeared to have difficulty
distinguishing more important from less important details; and he jumped from topic to topic. He also offered
conflicting accounts of important events. For example, Mr. Stiller alternately reported that he was unsure of
why he had been incarcerated, that he had been arrested for a battery charge, and that he was jailed by the
court so that his DNA could be tested in connection with potential child support payments. Because Mr.
Stiller often lost his train of thought and offered information that was not directly relevant to questions that
had been presented to him, it took considerable effort to gather information, and the interview had to be
highly structured. Indeed, even the initial notification process was difficult, given his tangential responses.
Also noteworthy is that he appeared to have little awareness of these tendencies on his part.
Further evidence of Mr. Stiller’s confused thinking (and the possibility of delusional thinking) was
indicated by his descriptions of his parents and of his relationship with the victim. About his parents, Mr.
Stiller stated that he thought his mother might actually be his stepmother, giving as the only reason for this
suspicion the fact that he and his older sister shared the same birthday (month and date). He also denied that
he had ever had a romantic relationship with the alleged victim, and he claimed that she had repeatedly
victimized him (e.g., by putting her name on his vehicle and real estate titles, stealing cash from him, breaking
into his residence, and assaulting him)—all of which appears to be inaccurate (see below).
The possibility of delusional thinking flowing from an underlying mental disorder was also suggested by a
review of the defendant’s jail medical record. More specifically, jail medical staff indicated that during his
incarceration, the defendant had attributed his arrest to a conspiracy centered in the sheriff’s office. The
record also indicated that the defendant had been placed in an observation cell because of problem behaviors
that included persecutory delusions, increased levels of anger and agitation, and pressured speech. These
observations led jail medical staff to offer a provisional diagnosis of bipolar I disorder (i.e., manic–depressive
illness) and to prescribe mood-stabilizing medication—which the defendant has consistently refused to take.

RELEVANT HISTORY: (Note: Unless otherwise indicated, all information in this section was provided by
the examinee.) Mr. Stiller was born in Shreveport, Louisiana, and grew up in Tallahassee, Florida, with five
siblings. His stepfather was employed at a local utility, while his mother worked as a bus driver for the school
district. Despite his confused and unusual concerns regarding his mother, Mr. Stiller described both parents
in positive terms and reported no incidents of abuse or neglect.

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 Mr. Stiller was held back in the third grade, and his parents requested his placement in special education
classes at some time during junior high school because of academic difficulties. He was once suspended for
truancy, but was never expelled. He describes himself as literate.
He first left home and began living independently shortly after graduating from high school. He
subsequently completed a number of limited training programs in small-engine repair. For the first five years
of his adult life, he was employed as a fiberglass installer at a number of local boat builders. Since the age of
23, however, he has been self-employed and has primarily operated lawn service and small-engine repair
shops. At the time of his arrest, he was living in an apartment over a place of business.
Mr. Stiller has never married and has no children. He stated that he is in good physical health, and that he
has no history of surgeries, hospitalizations, or chronic illness. He also stated that he was not taking any
medication or under a physician’s care for any physical health problems at the time of his interview. These
facts were corroborated by a review of the jail medical record.
Many other statements Mr. Stiller made about his history are contradicted by other evidence, however. For
instance, he denied any history of emotional or behavioral problems; self-injurious behavior or aggressive
behavior directed toward others; symptoms associated with depression or manic episodes; auditory or visual
hallucinations (i.e., hearing or seeing things in the absence of external stimuli); or contact with the mental
health system. Yet Alison Kestler, the defendant’s mother, reported in a phone conversation that her son had
a two-year history of emotional and behavioral difficulties that had resulted in a diagnosis of bipolar disorder,
which he was either unwilling or unable to accept. She further reported that her son was briefly admitted to
local crisis stabilization units on at least two occasions in the preceding two years, in response to aggressive
and threatening behaviors displayed toward her and other family members. She noted that while her son had
been referred for outpatient follow-up treatment upon being discharged to the community, he had shortly
thereafter discontinued treatment with mood-stabilizing medication, both because of the sedating side effects
and because he did not believe he needed treatment.
As noted above, Mr. Stiller also appears confused or in denial about his relationship with his mother and
with the victim. Ms. Kestler stated, contrary to Mr. Stiller’s account, that she was indeed Mr. Stiller’s
biological mother (and was surprised to hear that he questioned this); she also stated that the alleged victim
was the defendant’s ex-girlfriend, who had left him because of problems resulting from his mental disorder
(the latter a fact confirmed by the arrest report). She added that her son had suffered significant financial
setbacks in the past two years because of his mental disorder.
Mr. Stiller was vague when questioned about his history of alcohol use, and consistently responded that he
used alcohol “not very often.” When pressed, the defendant stated that he drank less than once a week, and
denied any history of alcohol abuse or alcohol-related problems. Mr. Stiller also denied any history of illegal
drug use. Ms. Kestler was unaware of any alcohol or drug use on her son’s part. In the jail medical record, the
defendant is described as minimizing his history of alcohol use, but no other information regarding this issue
is offered.
Mr. Stiller reported that his history of contact with the criminal justice system was limited to an arrest in
the early 1990s for driving with a suspended license and the present arrest.

COMPETENCE TO PROCEED: Mr. Stiller’s competence to proceed was evaluated using both a

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structured instrument—the MacCAT-CA—and a clinical interview.
The MacCAT-CA provides a series of questions that help the examiner quantitatively and qualitatively
compare defendants in three different domains relevant to competence to proceed: the capacities to
understand, to appreciate, and to reason about one’s charges and the criminal process. Each of Mr. Stiller’s
three MacCAT-CA scores fell in the “clinically significant impairment” range for the abilities assessed. A
number of his responses to specific items on the instrument also provided direct evidence that the impairment
was attributable to his underlying psychiatric symptomatology. For example, on the Understanding measure of
the MacCAT-CA, the examinee was asked to describe the elements of a hypothetical offense (i.e., aggravated
assault) that had been disclosed to him. His response was rambling and tangential and was in no way
responsive to the query. On the Appreciation measure, when questioned about his beliefs regarding the
likelihood of being found guilty or the likelihood of pleading guilty, Mr. Stiller’s responses were colored by his
assertions that the alleged victim was conspiring with the sheriff’s office against him. Overall, Mr. Stiller’s
MacCAT-CA scores clearly suggest significant impairment in multiple competence-related abilities.
The results of the clinical interview were consistent with these findings. As indicated above, Mr. Stiller
offered inconsistent responses when queried about the basis for his most recent arrest and incarceration. He
initially indicated having no understanding of the basis for his arrest; then stated that he was arrested for a
battery charge; and finally stated that he had been detained for DNA testing in connection with paternity and
child support claims levied by the alleged victim’s child, nieces, and nephews. As this vacillating account
suggests, it was difficult to discuss the charges with the defendant, and he showed a quite limited ability to
understand and appreciate their significance. In contrast, Mr. Stiller understood that the aggravated battery
charge was a felony and was punishable by imprisonment as well as by less severe sanctions such as probation.
He appeared to understand the significance of these sanctions, and indicated a preference for a disposition
that would allow him to return to the community as soon as possible. This ability to understand and
appreciate possible sanctions stands in contrast to Mr. Stiller’s confusion regarding the basis for his current
incarceration.
Mr. Stiller also demonstrated an impaired understanding of the legal process and the roles of those
involved. He correctly indicated that he was represented by the public defender’s office, and he reported that
defense counsel was to advocate for him and defend him against the state’s charges. However, Mr. Stiller also
stated that he intended to have the public defender get the charges against him “reversed” and instituted
against the alleged victim, and that he also wanted the public defender to bring a civil suit against her. He
could not be convinced that the public defender’s office would be unwilling to represent him in a civil
proceeding. In contrast, Mr. Stiller offered an adequate understanding of the pleas available to him, and the
roles of the prosecutor, judge, and jury.
Mr. Stiller’s greatest limitation with respect to competence was his difficulty in providing a coherent
account of his current allegations. As indicated above, Mr. Stiller alternately claimed that he had no awareness
of why he was in jail, that the basis for his current incarceration was a domestic violence charge, and that he
was being detained for paternity testing. When discussing the possible results of DNA testing, Mr. Stiller
engaged in a rambling and confusing account of his relationship with the alleged victim, her child, and other
relatives—one that included references to health insurance, the Department of Children and Families, and
Child Protective Services. Altogether, it is clear that an underlying mental disorder significantly limits the

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defendant’s ability to provide his attorney with information of relevance, work cooperatively with his attorney
with respect to crafting a response to the state’s charges, and testify about offense-related events.
In sum, Mr. Stiller’s understanding and appreciation of the charges and allegations against him, his ability
to provide his attorney with important information, his ability to work cooperatively with his attorney, and his
ability to understand and participate meaningfully in legal proceedings are significantly limited at this time as
a result of an underlying mental disorder, most probably bipolar I disorder. Furthermore, his performance on
the MacCAT-CA—which was normed on a diverse array of individuals, including those referred for
competence evaluations—indicates that these deficits are significant when compared to findings for other
defendant populations. Given all of these factors, it is this writer’s recommendation that the court consider the
defendant incompetent to enter a plea, stand trial, or be sentenced at this time. Of course, such decisions are
ultimately legal ones that are to be decided by the legal decisionmaker.
If Mr. Stiller were to take prescribed mood-stabilizing medication as recommended, it is likely that he
could show improved competence-related abilities within a period of three to six months. However, jail
records indicate that Mr. Stiller has consistently refused this treatment, both when in the community and in
jail. Given his lack of insight into his current emotional and behavioral difficulties, and his limited
understanding of his competence-related limitations, treatment in a psychiatric hospital may be necessary.
Thank you for this evaluation opportunity. If you have any questions about this evaluation, please do not
hesitate to contact me.
Joseph Hachem, Ph.D., Licensed Psychologist
Diplomate in Forensic Psychology
American Board of Professional Psychology

(b) Discussion

The Stiller report is a fairly straightforward report on competence to proceed, still the most common forensic
question. In this particular case, unlike some cases referred for competence evaluation [see § 6.06(a)], the
defendant’s competence to proceed is clearly in question.
A report on competence, whether criminal or civil, should be very focused. For example, historical
information is generally relevant only insofar as it helps illuminate the competence issue. Thus some of the
historical information in this report describing early childhood and employment, while probably important in
a sentencing evaluation or an evaluation of mental state at the time of the offense (MSO), might well be
superfluous in connection with a competence evaluation. On the other hand, the historical material reciting
the contradictions between the examinee and his mother on the question of past emotional problems is
obviously crucial in this case.
This latter point also highlights the importance of third-party information (here, information obtained
from the mother, jail records and personnel, the arrest report, and the public defender) and different
evaluation methodologies (the MacCAT-CA, in addition to the clinical interview) in competence-to-proceed
evaluations. Had the examiner relied solely on Mr. Stiller’s account, his conclusions about mental state would
have been significantly less persuasive. Of special note is the examiner’s use of the MacCAT-CA, which
provides corroboration based on a structured interview format and permits comparison to “other defendant
populations” (although this aspect of the instrument could have been explained more clearly [see §§ 6.06(b),

764
6.07(c)(1)]). Note also that the examiner continually identifies his sources. This general style of making clear
the basis for any reported “facts” is important in the legal setting. While it may result in a somewhat stilted
style, it is essential as a means of making clear to the reader the basis for any reports or opinions offered, and
thus facilitates follow-up, clarification, and further investigation of the data included.
As is appropriate, the report addresses each of the functional elements of the competence test [see §
6.02(b) for a discussion] and competence restoration issues [see § 6.09(c)]. For example, the report discusses
Mr. Stiller’s “inconsistent responses” regarding the circumstances of his current arrest, which are potentially
relevant to his basic understanding of the charges as well as his ability to consult with counsel. The report also
describes his limited understanding of the role of defense counsel and the legal process itself, though it also
points to his “adequate understanding” of the pleas available to him and the roles of the other parties to the
legal process. Note also that the examiner anchors his recommendation by making clear that Mr. Stiller’s
dysfunction is caused by his mental disorder. That fact is an important predicate to an incompetence finding;
for instance, confusion about the role of counsel that is due to ignorance rather than disorder is probably best
remedied through a simple conversation with counsel rather than court intervention. Finally, given this
presence of mental disorder, the report addresses treatment issues, should the court find Mr. Stiller
incompetent and in need of restoration.
As these comments suggest, none of the impairments described in the report in and of themselves make the
defendant incompetent. This is why the examiner suggests that the court consider the defendant incompetent,
but recognizes that the issue is ultimately a legal one.

(c) Warner Premington Report

NAME: Warner Premington

D.O.B.: November 18, 1958
DATE INTERVIEWED: October 24, 2015
SUBJECT: Competence to proceed

SOURCES OF DATA: Interview by Samuel Tatum, M.D., and Guy C. Harris, Ph.D.; interview of Mrs.
Premington by Drs. Tatum and Harris; Competency Screening Test; University of Virginia Hospital Chart.

REFERRAL INFORMATION: Mr. Premington was referred to the Forensic Psychiatry Clinic for
evaluation of competence to stand trial by his attorney, Robert Smith of Fairfax, Virginia. Specifically, the
clinic was asked to determine whether Mr. Premington has substantial mental capacity to understand the
proceedings against him, whether he has the mental capacity to aid and assist his counsel in his defense, and
whether more extensive evaluation and observation are required. The present evaluation concerns Mr.
Premington’s charges of “driving after having been adjudged a habitual offender.” These charges result from
incidents in Fairfax County on April 25, 2015, and in Loudoun County on May 19, 2015. Also pending is an
appeal in Loudoun County General District Court on a related charge of driving under the influence.
Mr. Smith has represented Mr. Premington for a number of years, and he was concerned about a steady
deterioration that he has observed in Mr. Premington’s ability to understand and orient himself to present
events. Particular precipitants of the current evaluation were Mr. Premington’s tendency to confuse the

765
Loudoun County charge with the incident in Fairfax County, and his disorientation at the time of a
preliminary hearing in Loudoun County, according to Mr. Smith.

BACKGROUND INFORMATION: Mr. Premington has a lengthy history of psychiatric problems. He

was hospitalized on several occasions with a diagnosis of paranoid schizophrenia at the Salem Department of
Veterans Affairs Hospital after a psychiatric discharge from military service in the Vietnam War. He was
evaluated here at the Forensic Psychiatric Clinic in December 2006, subsequent to charges of breaking and
entering. At that time, he was apparently actively delusional and hallucinating. Of most relevance to the
current situation, Mr. Premington suffered rather severe damage to the cortical area of the brain as a result of
head trauma incurred in a motorcycle accident in July 2013. Since that time he has had serious memory
deficits and, according to his wife, periodic rage reactions. He has been hospitalized for these problems on
occasion at the University of Virginia Hospital. He is currently being maintained on Haldol (an antipsychotic
medication) at 2 mg per day. It is also noteworthy that Mr. Premington has a history of chronic alcohol abuse.

MENTAL STATUS EXAMINATION: Mr. Premington presented as a rather tense, anxious man who
appeared somewhat bewildered by the evaluation process. It was immediately apparent that he has some
difficulty in recalling life events. He stated that his memory “has really gone downhill” since the accident of
July 2013. The problems in recall were somewhat diffuse, but appeared to be more pronounced when he was
attempting to relate events in the recent past. On examination, Mr. Premington was able to retain and recall a
series of three digits; when four digits were given, his sequential recall deteriorated significantly. He had very
inconsistent recall when asked to repeat several series of three and four digits in reverse order. He could recall
his own telephone number, but claimed no recall for the telephone numbers of his children (who live in the
area). He also stated that he cannot remember the extent of his extended family (he is not sure how many
grandchildren he has).
Mr. Premington was unable to engage in abstract thinking in the evaluation. This was tested through the
presentation of a series of items, one of which does not belong to the set (e.g., “Which one does not belong to
the series: apple, orange, pear, ice cream cone?”). Mr. Premington consistently provided the wrong answer or a
confused response to these questions.
The client was fully oriented to time, person, and place (i.e., his awareness of his whereabouts and identity
was intact), as well as his situation (i.e., being evaluated by physicians), although it cannot be assumed that he
understood the actual medical–legal significance of this examination. It is noteworthy also that Mr.
Premington had a marked tendency to perseverate. That is, he would make an appropriate verbal response,
but then would continue to repeat that response in contexts in which it no longer made any sense. He was
apparently unable to shift his understanding of the situation when the situation had in fact changed. For
example, on a sentence completion task (the Competency Screening Test—a measure designed to assist in
assessment of a defendant’s competence-related abilities), Mr. Premington repeatedly responded, “I’d tell the
truth,” when that answer was not relevant to the sentence stems presented. An originally appropriate response
was thus repeated in inappropriate contexts. Largely because of this confusion, Mr. Premington scored below
the cutoff point for competence on the Competency Screening Test, which indicates the possibility of
significant limitations in his competence-related abilities.

766
UNDERSTANDING OF THE LEGAL SITUATION: Mr. Premington is aware that he was not
supposed to be driving because he did not have a driver’s license. He apparently does not understand the
reason why his permit was revoked, though. He defined “habitual offender” as “driving the car more than
once.” He does understand the meaning of “driving under the influence” and its illegality. Mr. Premington
was able to give a reasonably cogent description of the circumstances surrounding the offense in Fairfax
County. However, when asked about other charges, Mr. Premington stated several times that he had no other
charges pending. During the second interview, Mr. Premington did recall the Loudoun County offense,
although he did not seem to realize that he was still liable for it. At best, he confused the two events and had a
clear awareness only of the Fairfax County charge. He was aware of no current charges of driving under the
influence. He also had no memory of any recent court appearances.
Mr. Premington has some limited understanding of the process of a trial. He knows that a judge “gives you
time” or “dismisses the case if you’re not guilty.” He observed that police are often present at the court, but he
was unable to describe why. He also had no idea how an attorney might help him. Mr. Premington claimed to
have no memory of what had happened in previous trials in which he had been a defendant. He described a
jury as “three or four people together saying that you’re guilty.” He defined “guilty” as meaning that one is
“charged with a crime.” It was not clear if he understood that one could be charged but actually found not
guilty; that is, it was unclear if he really knew what “being charged” means.
Mr. Premington does not understand his rights in a trial. He said that the right to remain silent means that
one is “not guilty,” and later said it meant “telling the truth.” A third definition he gave was that if a
policeman tells someone about this right, “he don’t believe that you’re guilty.” He also does not understand
the process of confrontation of witnesses. When asked what he would do if a witness lied about him, he
reasoned that “I’d just feel bad” and that “I wouldn’t do nothing.”

CONCLUSIONS CONCERNING COMPETENCE TO PROCEED: Subsequent to head trauma, Mr.

Premington has suffered a significant memory loss. In the current context, he confuses the offenses with
which he is charged, and it is questionable whether he would be able to keep the events of a trial in sequence.
Because of his tendency to perseverate, it is also questionable whether he would be able to follow the trial as it
progresses. Mr. Premington does understand that it was against the law for him to drive, and he remembers
the Fairfax County incident reasonably well. Although he does understand a trial as possibly resulting in
“giving him time,” Mr. Premington has numerous misconceptions and gaps in his knowledge about the
process of a trial. Mr. Premington’s ability to engage in abstract thinking is so minimal that he is unable to
conceptualize the roles of various participants in the trial. It is not likely that Mr. Premington would be able
to provide his attorney with relevant facts as the trial progresses, because he could not be expected to
understand the implications of testimony. He is compliant, though, and he would probably assist his attorney
as much as he could, which realistically would be on an extremely limited basis.

CONCLUSIONS CONCERNING TREATMENT: We believe that Mr. Premington’s lapses are largely
related to brain damage. These lesions are permanent; as a result, he cannot be expected to show improvement
in his competence-related abilities, even with treatment. In our opinion, he does not require hospitalization at
this time. Continued supervision by Mrs. Premington at home with medication would be a “less restrictive
alternative” for his care than a hospital.

767
 Samuel Tatum, M.D.
Guy C. Harris, Ph.D.

(d) Discussion

Note that in contrast to many competence reports, detailed historical information is clearly relevant to a
determination of Mr. Premington’s competence. Most significant in this regard is his history of brain damage.
Some of this background information was received from the attorney; a form such as that found in Figure 6.1
can help focus the attorney (or other informant) on the relevant considerations.
Second, note the cautious manner in which clinical information is offered. Instead of bald assertions of
“poor memory,” examples are given of Mr. Premington’s problems with memory and abstract thinking. By
providing the court with the basis for their clinical judgments, the report writers enhance the court’s ability to
judge the validity of their conclusions. Toward the same end, clinical terms (e.g., “perseverate”) are explained
in lay terms.
Third, as in the Keith Stiller report, the writers focus on the specific functional elements of competence.
They describe Mr. Premington’s understanding of court process and of the roles of the various participants,
using concrete examples from his statements at the interview and other sources. Although the court might not
give credence to the information (e.g., the court might ask whether other individuals—say, Mr. Premington’s
wife—could corroborate what appears to be his extremely hazy notion of court process), these examples would
at least make the court aware of the reasons for the clinical opinion. In contrast to the writer of the Stiller
report, the evaluators did not use a normed competence measure, but instead (cautiously) relied on the
Competency Screening Test [see § 6.07(a)(1)]; this illustrates the variety of ways examiners can assess
competence, as long as they focus on functional elements rather than global competence.
Fourth, note that although on balance the writers appear to suggest that Mr. Premington is not competent,
they avoid the ultimate issue, as we suggest they should. Leaving this judgment to the legal system might
frustrate the court and counsel. But competence is a legal issue, and its determination often involves
considerations that are not clinical in nature. In this case, for instance, the state needs only to prove that Mr.
Premington had a previous driving offense and was “behind the wheel” on this occasion to obtain a conviction
under the “habitual offender” statute. The court might decide that Mr. Premington is competent to
understand his relatively simple charges and to confer with his attorney about them. Finally, the report notes
the permanency of Mr. Premington’s condition. This fact will be relevant to the issue of restoration of
competence if the court finds Mr. Premington incompetent [see §§ 6.04(a), 6.09(c)].

(e) Fordham Rhodes Report

NAME: Fordham Rhodes

D.O.B.: April 26, 1971
DATE OF REPORT: January 3, 2005
SUBJECT: Competence review after initial adjudication of incompetence to proceed

DATE OF INTERVIEW: January 2, 2005, by Walt Allman, M.D.

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PURPOSE OF REPORT: Mr. Rhodes has been housed here at the South Florida Treatment and
Evaluation Center since August 2003, after a Dade County court found him incompetent to proceed on
charges of aggravated assault (a felony), credit card theft (a misdemeanor), and fraudulent use of a credit card
(a felony). As mandated by statute, he is to be evaluated every six months to determine whether he remains
incompetent to proceed. This report addresses that issue.

NOTIFICATION: Mr. Rhodes was told that he was being evaluated for his competence to proceed, and
that the results of the evaluation would go to the court, the prosecution, and his lawyer. He signed a form
indicating his understanding of these points and indicating his agreement to participate in the evaluation.

BACKGROUND: Mr. Rhodes is a 34-year-old black male. He entered the Navy at the age of 18, serving as
an aircraft mechanic on an aircraft carrier. He also claims that he was a Navy SEAL during his enlistment, but
this cannot be verified. After eight years of service, he left the Navy and worked at various jobs, including as a
radio and television tuner repairman. In 1999 he was arrested for unauthorized use of a vehicle, but charges
were dismissed. In 2002 he was charged with assault with intent to cause serious bodily harm, possessing a
hypodermic needle, resisting arrest, and disorderly conduct, but again charges were dismissed, on “grounds of
mental disorder.” The current charges arose out of an incident on August 2, 2003, at the Miami International
Airport.

PSYCHIATRIC HISTORY: Mr. Rhodes has spent most of his adult life hospitalized for psychiatric
problems. His consistent Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV)
diagnoses have been schizophrenia (paranoid type) and polysubstance dependence. His first experience with
treatment was in the Navy, where he reported hallucinations (i.e., seeing persons or things that were not
there); these symptoms were treated with Haldol (an antipsychotic medication) and Cogentin (a medicine
that relieves the side effects of Haldol). Since then he has been in mental hospitals on three other occasions,
including his current hospitalization here, for a total of almost six years out of the past nine years. As his
diagnosis indicates, he has a history of alcohol and drug misuse as well. Cocaine is his drug of preference,
although he has reported using marijuana, LSD, and mushrooms.

COMPETENCE TO PROCEED: In his initial evaluation, as well as in previous reviews, Mr. Rhodes
showed limited abilities with respect to all competence-related issues listed in the Florida Rules of Criminal
Procedure. My assessment of these factors indicates that he has improved significantly in all six areas.

1. Capacity to appreciate the charges or allegations. Mr. Rhodes could state to me with confidence what his
charges are, and could explain in abstract terms what “aggravated assault” and “credit card theft” mean. For
example, he knew that assault means hitting someone, and that theft means taking away someone’s property.
He also understood that aggravated assault is more serious than nonaggravated assault.
2. Capacity to appreciate the range and nature of possible penalties. Mr. Rhodes stated, accurately, that he
could receive up to seven years for his offenses under the Florida sentencing guidelines. He also understood
that a person who is sent to prison can get time off for good behavior. However, he also said, “I’ll never go to
prison.” When asked why, he said, “I’m a hospital man. I’m going to spend the rest of my life in a hospital.
They can’t send me to prison.” When pressed with the possibility that he might be convicted and sentenced

769
(at least technically) to a prison, he persisted in his statement that he will never be sent to prison. He also
stated that he likes the hospital environment and would not like prison. Thus, although he appears capable of
describing the penalties he faces, he appears emotionally or affectively somewhat indifferent about them. This
attitude might lead him to underestimate the potential benefits and negative consequences that could flow
from any bargains that might be offered or the potential consequences of a conviction.
3. Capacity to understand the adversary nature of the legal process. Mr. Rhodes’s previous experience with
the criminal justice system appears to have made him well acquainted with its attributes. Specifically, he stated
that the role of his attorney is to “take the case to court [trial] and fight for me”; he also acknowledged that
the attorney can arrange a plea in place of a trial. He was aware of the responsibility of the judge (bench trial)
or jury to “listen to both sides” and render a decision of guilty or not guilty. He gave a rudimentary description
of the role of witnesses in criminal proceedings and was able to identify potential witnesses both for him and
against him. For example, he was aware that this examiner or other mental health professionals who have
treated him in the past might be witnesses regarding his mental condition; he also recognized, in the abstract,
that a person who is assaulted or whose credit card is stolen might be a witness in a trial involving his type of
charges. He knew that the right to remain silent means that he does not have to talk even if the judge asks
him questions.
4. Capacity to disclose to counsel facts pertinent to the proceedings at issue. The police reports state that at
the time of the offense, Mr. Rhodes was trying to purchase a $2,500 ticket to Australia with four credit cards
belonging to other people. When confronted with this fact, he became belligerent and struck an airport guard.
There is no information in the report about how he obtained the credit cards, although it is conjectured that
he bought them from somebody on the street. Mr. Rhodes claimed during the interview that he met someone
on the street who took him to a bank vault full of gold. Somehow, during this visit to the vault, he came away
with the credit cards. He said that the names on the cards represented various names he has had throughout
his life. As to the alleged assault, Mr. Rhodes said, “You’d hit someone too, if they were in your face and
calling you names.” He became very agitated at this point, and the interview was delayed for a short time.
When the interview resumed, he stated that he would never plead guilty to the charges, again because he
belongs in the hospital.
Perhaps also relevant to this criterion, and his ability to relate to his attorney generally, is his delusional
system. Mr. Rhodes would often talk about an experience in the Navy, when he somehow fell in the water, or
was in the water during his work as a SEAL, and ended up as a tooth in a shark who was really his dead
stepfather. The delusions are much more elaborate, but will not be described further here. They are
mentioned because Mr. Rhodes often began describing them in response to questions about his prior life and
criminal offenses.
5. Capacity to manifest appropriate courtroom behavior. Mr. Rhodes was generally relaxed and even happy
during the interview. Although he did become agitated when asked questions about the assault, he did not
become violent; rather, he was allowed to smoke a cigarette, and he calmed down immediately. He did not
raise his voice and stayed seated throughout the interview, which in many ways simulated a mild cross-
examination. He is currently on Haldol. He stated, and this evaluator can confirm, that this medication
“shades” his hallucinations but does not relieve them totally. He also reported that he does not have significant
side effects from his current dosage. As noted previously, when focused and not talking about his delusions, he

770
appeared to be able to describe with lucidity various aspects of the system, his current situation, and his
everyday behavior. There were four or five occasions during our two-hour interview when Mr. Rhodes
interjected somewhat bizarre and inappropriate material; however, he could rather easily be directed to contain
this material until a later and more appropriate time for discussion. The hospital ward staff reports that he has
been relatively cooperative and appropriate during this period of confinement. Thus, although it is clear that
Mr. Rhodes suffers from some symptoms of mental disorder, the likelihood of substantial disruption as a
result of those symptoms is considered relatively low.
6. Capacity to testify relevantly. The information above is relevant to this criterion as well. If Mr. Rhodes
took the stand, he would probably be able to provide information “relevant” to an insanity defense and the
assault charge, but would not be particularly helpful to a jury trying to find out precisely how he obtained the
credit cards. He would probably be able to recount other aspects of his history with the same clarity that he
did during this evaluation (described above). Again, any digressions on his part can easily be halted; thus,
should he be called on to testify, only minimal difficulties or disruptions should occur.
7. Other relevant factors. Mr. Rhodes understands, in the abstract, that if he pleads guilty he gives up his
right to have a jury trial and to confront his accusers. Again, however, he stated to me that he would never
plead guilty.

CONCLUSIONS REGARDING COMPETENCE: Mr. Rhodes is most likely to have difficulty with
respect to appreciating the consequences of a conviction. On the other hand, he may be correct in believing
that even if he were convicted, he would end up in a hospital, given his need for medication and his history.
Mr. Rhodes also is not able to provide accurate information about the credit card charge, although his
description might bolster an insanity defense. Whether these or other mental problems described previously
make him incompetent is beyond the expertise of this examiner.

TREATMENT CONSIDERATIONS: If Mr. Rhodes is found competent to proceed, he should be

maintained on his current dosage of Haldol, pending the trial proceeding. If he is found incompetent to
proceed, the chances that his mental status will further improve are very low. In an effort to minimize his
hallucinations, this hospital has tried a number of medications, including lithium (usually given to those with
manic–depressive psychosis) and Clozaril (a newer antipsychotic drug that has fewer side effects than Haldol).
The lithium did not work, however, and the Clozaril turned out to affect Mr. Rhodes’s blood pressure and
was discontinued. Thus, given our current medical resources, Mr. Rhodes’s mental state is the “best” it can be
at the present time.
Walt Allman, M.D.

(f) Discussion

A few differences between this report and the two other competence-to-proceed reports should be noted.
First, this evaluation was not conducted at the “front end” of the process. Rather, it was a review procedure,
mandated in virtually all states, to assess the current competence of a person who has previously been
adjudicated incompetent to proceed. Note that Mr. Rhodes has already been in the hospital for well over two
years. Although this might seem to be a violation of Jackson v. Indiana [see § 6.04(a)], in Florida—the state

771
in which this evaluation took place—the relevant rules provide that charges against a person found
incompetent do not have to be dismissed until five years after arrest on a felony charge and one year after
arrest on a misdemeanor charge.
Second, Florida law dictates that certain specific criteria be assessed, in contrast to many states where the
competence standard consists solely of the Dusky test. These criteria help focus the evaluator and the court.
But they may not be adequate. For instance, note that despite the fact that most defendants plead guilty rather
than go to trial, the six factors identified in Florida law do not directly assess one’s understanding of rights
waived by a guilty plea—an issue the evaluator therefore discusses under the “basket” category of “other
relevant factors.”
As to application of the criteria, probably the most interesting issues are raised by factors 2 (appreciation of
consequences) and 4 (recounting facts). Mr. Rhodes has the capacity to understand that a person charged with
his offenses could receive seven years, but he does not appreciate (in the sense of “believe”) that this
consequence could happen to him. It is not clear whether this lack of appreciation means that Mr. Rhodes is
incompetent (an issue the evaluator wisely avoided). In this regard, note that some of the newer assessment
instruments, including the MacCAT-CA, specifically try to assess not only the individual’s understanding of
the situation, but also his or her “appreciation” of the legal facts as they apply in his or her case [see § 6.07(c);
see also the Keith Stiller report above].
With respect to factor 4, note that in contrast to the previous two reports, this report recounts Mr.
Rhodes’s own account of the offense in some detail. Because this report is court-ordered, this level of detail
may present a Fifth Amendment issue, especially when the defense attorney is asserting that his or her client
did not commit the crime (although those jurisdictions that prevent use of the competence results at trial
minimize this problem [see § 4.02(a)]). In any event, an interesting issue is whether Mr. Rhodes’s capacity to
give his presumably delusional version of the offense is sufficient to meet factor 4. The answer to that question
may depend on whether he raises an insanity defense. Or a court may decide that the attorney’s ability to
represent this client is inevitably compromised until the attorney gets a “coherent” account from his client
about the manner in which the credit card was obtained and the alleged assault. Similar issues arise in
connection with factor 6, having to do with the capacity to testify. Note the hints the evaluator gives as to how
to handle Mr. Rhodes, should he take the stand or be interviewed.
Third, this individual, unlike Mr. Premington or Mr. Stiller at the time of his interview, is heavily
dependent on antipsychotic medication (the various types of which are explained rather than merely named).
Note how the report addresses the effects of the medication on Mr. Rhodes’s ability to communicate—an
issue that the Supreme Court, in both the Riggins and Sell decisions, has indicated is particularly important
[see § 6.04(d)]. The report also tries to predict whether the medication, or any other treatment, will improve
Mr. Rhodes’s condition (an inquiry necessitated by Jackson).

(g) Richard Stevens Report

NAME: Richard Stevens

DATE OF EVALUATION: May 27, 2006
CASE #: 05CJ011110A

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DATE OF REPORT: May 28, 2006
D.O.B.: July 16, 1994
AGE: 11
EDUCATION: Fourth grade

IDENTIFYING INFORMATION/REFERRAL QUESTION/NOTIFICATION: Richard Stevens is

an 11-year-old African American boy who was ordered by Judge Holmes to undergo evaluation of his
competence to proceed in a delinquency proceeding. Review of records provided by the public defender
indicated that Richard is facing two charges—delivery of cannabis within 1,000 feet of a school, and
possession of cannabis—based on allegations that on November 22, 2005, marijuana was found in his
backpack while he was on school grounds. In a letter to this writer, Richard’s public defender, Lisa Laney,
indicated that she requested the evaluation because of difficulties she had experienced discussing the legal
proceedings with her client during their first meeting.
Richard was interviewed in this writer’s office on May 27, 2006. Before the evaluation began, its nature
and purpose were explained to Richard and his mother, Tammy Stevens. Richard appeared to have a basic
understanding of the evaluation, while his mother evidenced a more complete understanding, and consented
to the evaluation on his behalf.

SOURCES OF INFORMATION: The following sources of information were relied upon in conducting
this evaluation:

1. Clinical interview with Richard Stevens (05/27/06, 1.33 hours).

2. Interview with the examinee’s mother, Tammy Stevens (05/27/06, 0.66 hours).
3. Review of court order authorizing forensic evaluation (05/26/06).
4. Review of arrest report and supporting documentation (05/26/06).
5. Review of delinquency petition (05/26/06).
6. Review of Richard’s Highlands County Schools records (05/26/06).
7. Administration of Juvenile Adjudicative Competence Interview (05/27/06).

RELEVANT HISTORY: Ms. Stevens reported that her son was the product of an unplanned, somewhat
short (8.5 months), but otherwise normal pregnancy, during which she received appropriate prenatal care and
did not use any alcohol, illegal drugs, or tobacco products. Ms. Stevens stated that there were no
complications during Richard’s delivery, but that he only weighed 5 pounds, 2 ounces at birth. She described
an unremarkable medical history overall and indicated that her son attained all developmental milestones (e.g.,
crawling, walking, talking, and toilet training) as expected.
At the time of the evaluation, Ms. Stevens stated, Richard lived in an apartment in northeastern Richmond
with his seven-year-old half-sister, his stepfather (a hairstylist), and herself (a part-time worker at a credit card
call center). Ms. Stevens (who kept that name because she had not married the stepfather) reported that
Richard also had a number of half-siblings by way of his biological father. According to Ms. Stevens,
Richard’s relationships with his stepfather and siblings were positive, as was his interaction with his biological
father. Although Richard had minimal contact with his father for the first nine years of his life, he has seen

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him on a weekly basis for the past two years. Ms. Stevens believed that this contact has led to improvement in
her son’s emotional and behavioral adjustment and functioning.
In a separate interview, Richard described his mother, stepfather, and father in positive terms and did not
report any history of abuse or neglect. He also reported having positive peer relationships both in school and
at home; identified a number of friends by name; and described involvement in age-appropriate activities,
including playing Little League baseball, watching television, and playing video games. This account of
positive peer relations was corroborated by Ms. Stevens.
At the time of the interview, reported Ms. Stevens, Richard had just completed fourth grade at
Sensenbrenner Elementary School in north Richmond. Ms. Stevens stated that her son had been retained in
the fourth grade as a result of reading difficulties, which remained an ongoing issue. More specifically, Ms.
Stevens reported that at the beginning of the 2005–06 school year, Richard was reading at the first-grade
level. As a result of these difficulties, Ms. Stevens stated, Richard was enrolled in special reading classes.
Today, at the age of 11, she said, he reads at a third-grade level. According to Richard’s school records, testing
completed in October 2005 indicated that Richard was functioning in the average range of intelligence, and
that his academic skills were consistent with his grade level (with the exception of reading). As a result,
Richard was diagnosed with a learning disability and placed in special education programming focused on his
reading skills and abilities. Richard reported enjoying school primarily because of his peer relationships. He
identified math as his favorite subject, and acknowledged that he had some problems with reading. No history
of suspension or expulsions was reported by Ms. Stevens or indicated in the school records.
Both Richard and his mother stated that he does not use alcohol or illegal drugs, and Ms. Stevens noted
that after his arrest on the current charges, Richard had to undergo drug testing, with negative results. She
also reported that her son had never displayed emotional or behavioral difficulties that necessitated treatment
of any type. Overall, she described Richard as a happy and well-adjusted 11-year-old who sometimes was
embarrassed by his reading difficulties.
Both Richard and his mother reported that his arrest on these charges constituted his first contact with the
juvenile justice system.

CURRENT CLINICAL FUNCTIONING/BEHAVIORAL OBSERVATIONS: Richard Stevens is a

short, slightly built African American male whose stature makes him appear somewhat younger than his
stated age. Richard and his mother arrived promptly for the evaluation. Richard was casually but neatly
dressed, wearing a T-shirt with a sports team logo, baggy denim shorts, and Adidas sandals with socks.
Richard was cooperative with the evaluation process and complied with all requests made of him. Rapport was
easily established; Richard volunteered information appropriately; and his responses to questions were
typically relevant and informative. There were no indications that the form or logic of Richard’s thought
process was impaired by a mental disorder. Richard displayed a range of emotion during the course of the
interview, and his expressed emotion was always appropriate to and consistent with the content of his speech.
Richard’s attention and concentration appeared unimpaired, and his memory for remote and recent events
appeared unimpaired as well.

COMPETENCE TO PROCEED: Richard’s competence was evaluated according to the Dusky v. United
States criteria, which focus on the defendant’s understanding of the charges, sanctions, and legal process, and

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his or her ability to communicate with the attorney and others with a reasonable degree of rational
understanding. The information below was obtained largely from administration of the Juvenile Adjudicative
Competence Interview, which permits inquiry into those criteria from a developmentally appropriate
perspective.
When queried about the charges that resulted in his arrest, Richard responded, “Process of marijuana
within 100 feet of a school.” When asked to explain this response, Richard made clear that he understood he
was accused of possessing marijuana while on the grounds of Sensenbrenner Elementary School. However, in
other respects, his understanding of his charges was compromised. Although Richard estimated the date of
his arrest to be sometime in December 2005, he was actually arrested in November 2005. Although he
understood that he was accused of possessing marijuana, he did not know that he was also charged with
delivering marijuana to others; nor did he appreciate the significance of this distinction even after it was
reviewed with him. This confusion demonstrates an incomplete understanding and appreciation of the
charges and allegations.
When first queried regarding the sanctions that could be imposed if it was determined that he was
responsible for the charges as alleged, Richard responded that authorities could “put me in jail . . . put me in
prison . . . put me on probation.” As he offered these options, Richard became noticeably upset and began to
cry. Further inquiry revealed that Richard erroneously believed that a long term in prison was a good
possibility. He also did not understand “probation” or “conditions of supervision.” These matters were then
explained to him. Because Richard was able to incorporate and remember this information, as indicated by his
responses to queries later in the evaluation process, he appeared to have a basic understanding and
appreciation of sanctions that could be imposed. Indeed, Ms. Stevens indicated that she believed her son’s
improved adjustment and functioning in school resulted in part from his belief that he could be sanctioned in
serious ways as a result of the current charges.
Richard was able to provide an independent account of his behavior and that of relevant others at and
around the time of the alleged offenses. More specifically, Richard could informatively describe the behavior
relevant to his charges both in narrative form and in response to focused questions. This ability on the
examinee’s part indicates that he is able to provide his attorney with a relevant account of events surrounding
his behavior at and around the time of the alleged offenses. It also reflects Richard’s ability to testify about
these issues, should he and his attorney decide that it is in his best interests to do so. Additionally, given the
fact that, as suggested above, Richard interacted appropriately with this writer and complied with all requests
made of him, he should have little difficulty acting in an appropriate way during the course of upcoming legal
proceedings.
In contrast, Richard demonstrated significant limitations with respect to his understanding of the legal
process, its adversarial nature, the roles of those involved, and his rights as a defendant. Richard offered only a
rudimentary understanding of defense counsel’s role and responsibilities, and he demonstrated an even less
complete understanding of the role and responsibilities of the judge and prosecutor. More specifically,
although Richard stated that defense counsel was “there to help me,” he could not identify any actions that his
attorney might take; nor could he incorporate such information after it was presented to him. Richard offered
no understanding of the prosecutor’s role or motivations, and was unable to relate back information about
these topics even after considerable discussion. When queried about the judge’s role, Richard offered that the

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judge was to “decide what happens,” but he could not identify how the judge might reach a verdict, again
despite considerable discussion of this issue. Consistent with these findings, Richard had little understanding,
even after discussion, of the adversarial nature of the legal process and his rights as a respondent (such as the
rights to retain counsel, avoid self-incrimination, confront witnesses, and testify).
Note that the deficits referenced here do not flow from an emotional or behavioral disorder, or from
intellectual or cognitive limitations. Rather, Richard’s limited understanding of the legal process, its
adversarial nature, his rights, and the roles and responsibilities of those involved appears to result from normal
“limitations” associated with his age (11 years old). Similarly, the deficits observed by this writer are
considered to be more than deficits in knowledge; rather, they suggest a lack of appreciation and
understanding flowing from his (age-related) cognitive “limitations.” As such, these deficits cannot be
remedied simply by instruction. Given the cause of these deficits, no treatment or intervention can be
recommended to restore Richard’s competence at this time. Accordingly, the court may wish to adjudicate the
examinee incompetent to proceed, and either dismiss the charges or stay the proceedings with the
understanding that he could be reevaluated at some time in the future (one year).
If you have any questions about this evaluation, please do not hesitate to contact me.
Respectfully submitted,
Zeke Mowatt, Ph.D.
Licensed Psychologist

(h) Discussion

This evaluation involves an increasingly common issue: whether a youth is competent to proceed in a
delinquency proceeding. As this report illustrates, there are certain similarities between juvenile and adult
competence evaluations. For example, the “sources of information” are not significantly different, and the
Dusky criteria apply in both types of evaluations. (As noted in § 14.04(a), the Dusky criteria have been
criticized as developmentally inappropriate, but examiners must follow the law of the jurisdiction.)
There are also significant differences between adult and juvenile competence-to-proceed evaluations,
however. The evaluator here uses the Juvenile Adjudicative Competence Interview, which is appropriate in
this context, but would not be with an adult examinee—just as the MacCAT-CA or Evaluation of
Competency to Stand Trial—Revised, which have only been normed with adults, should generally not be used
with juveniles [see § 6.07(c)]. The report also describes a significant amount of historical information, which
is more likely to be useful in juvenile cases, given the relevance of child care and schooling to juveniles’ current
capacities.
Note that the evaluator reports that he provided Richard with information relevant to the competence
standard, and that Richard was able to incorporate some of this information (e.g., what the term “conditions
of supervision” means) but not all of it (e.g., the role of various legal parties). Because competence to proceed
focuses on the examinee’s capacity, it is appropriate for an evaluator to use this “education–recall” technique
when the examinee displays deficits in knowledge, and for the evaluator’s opinion on competence to be guided
at least in part by the examinee’s ability to incorporate and use the information.
This report also illustrates the difficulties that the examiner can encounter in addressing the question of
competence among very young or immature defendants. In this particular case, the evaluator recommends an

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adjudication of incompetence based on “normal ‘limitations’ associated with [the examinee’s] age (11 years
old).” This type of conclusion raises three issues. First, the examiner must determine whether the law of the
jurisdiction permits an incompetence finding based on age, or whether instead it requires a “mental disorder.”
Second, the examiner must clearly communicate that the examinee’s limitations are age-based, rather than
flowing from a diagnosable disorder. Any temptation to assign a diagnosis, despite the absence of symptoms,
in an effort to reinforce an opinion that the defendant is incompetent must be resisted on ethical grounds.
Finally, as the evaluator notes here, no treatment program can address age-based or developmental-
immaturity-based incompetence. Only further maturation can create the potential for the defendant to
become competent.

19.03. COMPETENCE TO PLEAD AND WAIVE RIGHTS [CHAPTER 7]

(a) Carl Bates Report

NAME: Carl Bates

D.O.B.: March 28, 1957
DATE OF REPORT: June 22, 2014

DATES OF INTERVIEWS: Social history by John Waggoner, M.S.W., on June 6, 2014; psychiatric
evaluation by George Fordham, M.D., on June 13, 2014.

REFERRAL INFORMATION: Mr. Bates is a 57-year-old white male charged with one count of felonious
attempted shooting. The charge arose out of an incident that occurred on March 19, 2014, in which Mr.
Bates allegedly shot an airplane as it flew over his property. The plane, a crop duster, was hit five times, but no
one was injured. Mr. Bates has signed a confession stating that he did shoot at the plane.
Mr. Bates was referred to the clinic pursuant to an agreement between the Commonwealth’s Attorney of
Columbia County, Charles Daniels, and Mr. Bates’s attorney, Sam James, of Columbia, Maryland. The clinic
was asked to address Mr. Bates’s competence to (1) enter a plea and (2) exercise Miranda rights at the time of
his detention and interrogation.
The clinic has the following sources of information available to it: a summary of the police investigation
relating to Mr. Bates’s charge, prepared on March 19, 2014, by Trooper G.W. Jones; a summary of a
psychiatric report on Mr. Bates from Brisbane Hospital in Jessup, Maryland, prepared by Dr. Lester Oldes,
Jr., psychiatrist at the Columbia County Family Guidance Center; a copy of Mr. Bates’s indictment; the
deposition of arresting Trooper Jones; and the clinic’s own evaluation, consisting of a two-hour social history
interview, a two-and-a-half-hour clinical interview, and administration of the Wechsler Adult Intelligence
Scale—Third Edition (WAIS-III) and several instruments that help measure capacity to exercise
interrogation rights (the Comprehension of Miranda Rights, Comprehension of Miranda Rights—
True/False, Comprehension of Miranda Vocabulary, and Function of Rights in Interrogation measures).

PERSONAL HISTORY: Mr. Bates has been admitted to a psychiatric facility on only one occasion: In
1998, he was hospitalized at Columbia General Hospital and then transferred to Brisbane Hospital, a mental
health institution. Mr. Bates is not sure why he was hospitalized, though he suspects it may have had

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something to do with his drinking. (He told the clinic that prior to his hospitalization, he would often
consume a fifth of whiskey while watching a baseball game on TV.) The clinic does not have access to the
final report from Brisbane, but a summary of the report prepared by Dr. Oldes indicates that the hospital staff
believed Mr. Bates was manifesting “paranoid delusions of a great variety” on his admission to Brisbane. His
condition was diagnosed as “chronic undifferentiated schizophrenia with organic features.” Signs of heavy
drinking were also noted. Mr. Bates told the clinic that he received no treatment at Brisbane. He was
apparently released after approximately six months.
According to Mr. Bates, his admission to Brisbane marked a time of significant change in his life. He
stated to the clinic interviewers that although he had enjoyed an active sex life before his admission, afterward
he did not engage in sex at all. He began having trouble sleeping; he said that this was the result of loud
pounding noises originating from rooms adjacent to his. Most significantly, it was at this time that Mr. Bates
began to believe that government officials were attempting to harass him. He eventually came to believe that
the noises were made by these government agents, whom he alternatively characterized as the “Law,” the
“Metropolitan Police,” the “government,” or “plainclothesmen.”
Mr. Bates reported other manifestations of government harassment over the years since 1998. He stated
that even though he changed residences several times in the years between 1998 and 2009, the night noises
continued. The “Law” allegedly placed bugging devices in his bed and kept him under constant surveillance
with cameras and other electronic equipment. Automobiles with Washington, D.C. plates (perceived as
indicating a connection with the government) would be waiting outside his door to tail him. He said that the
government even began making use of his neighbors and family in its attempt to harass him. He reported that
although he used to have a close relationship with his family, he no longer trusts them because they have been
“turning to the Law.”
From Mr. Bates’s description, what he characterizes as the government’s scheming increased after he
moved to his present location in Archer, Maryland, which happens to be near a military training center. He
claimed that eavesdropping devices were planted all over his house, and that government cameras were set up
in his elder brother’s home across the street. Neighbors’ children were supposedly employed by the “Law” to
observe his activities. The ploy that most annoyed Mr. Bates was the alleged use of planes and helicopters by
the “Law” to conduct surveillance and bombard his home with electronic weapons. According to Mr. Bates,
the latter action resulted in damage to his house and the death of one of his dogs.
In his confession to the police, Mr. Bates admitted to the shooting incident that led to the current charges.
In the confession, he justified his act as an effort on his part to retaliate against the long years of government
surveillance and to bring attention to the government’s methods. Though asked at several points during the
clinic interview why he thought the government was conducting this campaign against him, he could recite no
reason other than the possibility of “some sort of grudge.” When confronted with the suggestions that perhaps
the cameras and bugging devices did not exist (he admitted to not being able to find them), and that the
planes might have been engaged in legitimate enterprises, he rejected the notions vigorously. He appears to be
convinced that the government is “out to get me,” and that the plane he shot at was just another indication of
this plot.
Since his arrest, Mr. Bates has been living at home. He reported that he has not observed any government-
sponsored plane flying over his house, though he believes the cameras are still in place. He stated that he is

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not concerned about the outcome of the pending proceedings, because he has “everything in my hands”; this
appears to mean that he has caught the government in the act, and it will eventually suffer for it. He believes
that his trial and incarceration, if they take place, will be the “match to the gasoline barrel” that will highlight
the misdeeds of the “Law” and its officials. He compared himself in this regard to Thomas Friedman, the
columnist.
Mr. Bates also believes that the “Law” has been behind the delay in having his case heard. He stated that if
he were to be sent to jail, he would not be surprised if it was because the judge and the lawyers had been
bribed.

MENTAL STATUS: Mr. Bates is a 57-year-old white male with a ruddy complexion. He rarely smiled
during the interview and assumed a belligerent tone during most of it; however, his irritation was directed
toward those he believed to be harassing him and not toward the interviewers. Mr. Bates was oriented to time,
place, and person; that is, he knew what time of the year and day it was, where he was, who he was, and who
the interviewers were. He did seem somewhat confused as to the purpose of the interview, at one point stating
that he felt his evaluation at the clinic was another attempt at delay by the “Law.” He understood, however,
that the interview was somehow connected with his pending criminal proceeding.
Mr. Bates exhibited significant signs of delusion when discussing the “Law’s” involvement in his life. On
other topics, he did not exhibit such delusional symptoms; he was able to discuss rationally such subjects as his
weight, gardening, different types of guns, and the weather.
Clinically, there is some evidence of incipient organicity (i.e., damage to brain tissue, which often manifests
itself through deficits in memory and orientation). Mr. Bates could have done damage to his brain through his
heavy drinking in the past. Such damage could also result from deterioration due to the aging process. Mr.
Bates’s thought content was often tangential (i.e., divergent from the topic under discussion). When
confronted with the assertion that some of his statements contradicted reality, he answered with seemingly
irrelevant pronouncements. For instance, when it was noted that he had never been able to discover any
bugging devices in his home, he responded, “I don’t have to find it, because I know just what I’m looking for.”
To further investigate these deficits, Mr. Bates was administered the WAIS-IV. He appeared to take the
testing seriously, and thus the results probably accurately reflect his current intellectual functioning. Those
results place him in the borderline range of intellectual functioning, and indicate no discrepancies between his
verbal and nonverbal, visual–motor abilities.
Mr. Bates’s affect (his emotional response to the content of the interview) consisted primarily of anger or
irritation throughout most of the interview.

OBSERVATIONS ABOUT MR. BATES’S COMPETENCE TO EXERCISE INTERROGATION

RIGHTS: Mr. Bates coherently described the events leading up to his confession, the important aspects of
which are corroborated by the police account. Mr. Bates stated that he was arrested by three policemen shortly
after the alleged offense and was taken to the station house. He was not asked any questions on the ride to the
station, and he did not volunteer any information, other than exclaiming, “You’ll pay for this!” from time to
time. He reported that after booking, he was verbally instructed about his rights and then questioned about
the offense; this session took about an hour and took place in a windowless room on the second floor of the
police station, with three plainclothes officers and an audio recorder present. About one hour after the

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questioning ended, he was asked to sign a document purporting to summarize his statements, which he did.
According to the deposition of Trooper Jones, the defendant was not asked any questions about the offense
until he arrived at the police station. Once there and placed in an interview room, with Jones and two other
officers present, Jones apprised the defendant of his rights by reading them from an agency-issued card. Jones
made no specific inquiry into the defendant’s appreciation of these rights beyond asking him if he understood
them, to which the defendant replied affirmatively.
During the clinical interview, Mr. Bates volunteered with reasonable precision the Miranda notification,
but he did fail to mention the fourth prong (i.e., that if a person cannot afford an attorney, one will be
appointed for him or her). He was then read the Miranda warnings. When asked to explain the meaning of
the statement “You have the right to remain silent,” Mr. Bates replied, “You do not have to talk to the police.”
When presented with the phrase “Anything you say can and will be used against you in a court of law,” Mr.
Bates responded, “If you say anything, they’ll use it to hang your ass . . . to convict your ass . . . send you off to
prison . . . right?” When presented with the statement, “You have the right to an attorney,” Mr. Bates offered,
“It means when you’re arrested you get a lawyer, no matter what . . . no ifs, ands, and [ sic] buts.” When asked
to explain the statement “If you cannot afford an attorney, one will be appointed for you,” Mr. Bates
responded, “I forgot that one now, didn’t I? That means that if you got no money—like me—they get you a
lawyer, from the court or the county or something.”
Mr. Bates was also administered four tests developed by Grisso to examine understanding of Miranda
rights. His score of 7 (out of a possible 8) on the Comprehension of Miranda Rights measure places him at
the 58th percentile when compared to a sample of adult offenders; his score of 10 (out of a possible 12) on the
Comprehension of Miranda Vocabulary measure places him at the 63rd percentile when compared to a
sample of adult offenders; his score of 11 (out of a possible 12) on the Comprehension of Miranda Rights—
True/False measure places him at the 60th percentile when compared to a sample of adult offenders; and his
score of 26 (out of a possible 30) on the Function of Rights in Interrogation measure is an average score
obtained by an offender sample. Although these scores are more relevant to Mr. Bates’s understanding at the
time of the evaluation than at the time of the arrest, they indicate a generally well-developed appreciation of
his interrogation rights.
Mr. Bates also reported that he had not felt physically threatened by the police at the time of the
confession; nor was he under the influence of drugs or alcohol at that time. As evidenced during his interview,
he does not seem suggestible, particularly when an aspect of his delusional system is challenged (see above).
Nonetheless, Mr. Bates was administered a specialized measure that is useful in evaluating an individual’s
proneness to be influenced by others, the Gudjonsson Suggestibility Scales 1 (GSS 1). The GSS 1 measures
the tendency to “yield” to misleading or leading questions, and the tendency to “shift” to different responses
when pressured. On the GSS 1, Mr. Bates was asked to read a paragraph containing a number of facts, and
was then asked to recall verbally what he remembered. After a one-hour delay, he was again asked to recall
what he remembered. He was then asked 20 questions about the story, 15 of which were misleading or
leading. He “yielded” to only one of those questions. Mr. Bates was then told (deceptively) that he had
answered a number of the questions incorrectly and that he needed to be more accurate. He nonetheless
refused to “shift” on any of his answers. Both his Yield and his Shift scores were below average, and his total
suggestibility score on the GSS 1 was 5.0. Since the average score on the GSS 1 is 7.5, this measure tended to

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confirm that Mr. Bates is not likely to be easily influenced by others, including perhaps police officers.

OBSERVATIONS ABOUT MR. BATES’S COMPETENCE TO ENTER A PLEA: In the state of

Maryland, to be competent to plead, one must be competent to stand trial, understand the various rights that
are waived through a guilty plea, and enter the plea voluntarily. Thus competence to plead guilty first requires
the capacity to communicate with one’s lawyer. Mr. Bates’s mental condition, which demonstrates clear
evidence of paranoia, distorts his perception of reality. However, he is able to communicate verbally with
relative ease. He can recite the events leading up to his arrest and describe what occurred thereafter. Although
his interpretation of these events is somewhat abnormal, he is able to describe them in sufficient detail to give
an attorney a factual basis on which to work.
Mr. Bates stated that he does not believe his attorney is part of the plot to harass him, and in fact told the
clinic interviewers that he “trusts” Mr. James. There is a possibility that Mr. Bates could change his opinion of
Mr. James as the trial date approaches or after he sees how the trial progresses. However, at present he
appears willing to cooperate with his attorney in his own defense.
The other prong of the test of competence to plead guilty is whether the defendant possesses a rational and
factual understanding of the proceedings against him. As noted previously, Mr. Bates’s perception of the legal
process is distorted by his belief that if he is found guilty, it will be because the court has been corrupted and
not because he has done something illegal. This belief is not “rational” in the sense that it does not comport
with reality (though it is “rational” if one accepts Mr. Bates’s premise that the “Law” is determined to martyr
him). The important point here, however, is that Mr. Bates’s delusion does not obscure his understanding of
the functions of various court personnel; nor does it hinder his grasp of the purpose of trial. He was able to
explain adequately what the judge and lawyers are expected to do in and out of the courtroom. For instance,
he said that the judge “makes the decision about the case,” and that lawyers “help him do it, by showing him
both sides of the case.”
Mr. Bates also was able to demonstrate a minimal understanding of what it means to plead guilty. When
asked if he would receive a trial after pleading guilty, Mr. Bates stated, “No.” When asked what he would
plead guilty to, he stated, “Shooting an airplane.” As noted previously, he understands that a plea of guilty
could potentially result in incarceration, although he did not know the maximum penalty. (As it turns out, no
one knows the maximum penalty for “shooting an airplane,” because technically it is not a crime in Maryland.
Mr. Daniels states that he will probably eventually charge Mr. Bates with some type of assault.) Whatever the
charge, it seems probable that Mr. Bates, on a cognitive level, would understand the implications of pleading
guilty to it.
It is noteworthy in this regard that if Mr. Bates did plead guilty, he would still in all likelihood believe that
his acts were totally justified and that he is not “guilty” in the moral sense. He would probably admit to
shooting the airplane, but would never admit that he was “wrong” in doing so.
The clinic has no opinion as to the voluntariness prong of the guilty plea test, as that will presumably
depend on the circumstances surrounding the occasion of the plea. Our observations with reference to Mr.
Bates’s suggestibility in a general sense are stated above.
George Fordham, M.D.
John Waggoner, M.S.W.

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 (b) Discussion

The Bates report is interesting from a number of perspectives. First, it demonstrates a point made in all the
chapters dealing with competence [Chapters 6, 7, and 11]: namely, that psychosis or delusions do not
automatically render a person incompetent. A competence evaluation must focus on the individual’s
understanding of the specific functions considered relevant by the law; even if the person is “out of touch with
reality” in a general sense, he or she may still be able to grasp the narrow notions encompassed by the legal
test. Here, the data presented in the report suggest that Mr. Bates is competent to proceed and to plead guilty
(and that his confession was valid as well), despite his paranoid delusions. Of course, a judge might decide
that Mr. Bates’s delusional system, and specifically his refusal to admit any moral wrongdoing, render his
confession or guilty plea “unintelligent” or “unknowing”; such a possibility illustrates the importance of
avoiding the ultimate issue, as the examiners have done.
With respect to the portion of the report concerning competence to confess, it is worth noting the use of
Grisso’s assessment instruments to gauge present understanding of the Miranda litany, the careful recitation
of the events surrounding the confession, and the use of the GSS 1 to evaluate suggestibility. All of these
aspects of the report would be relevant to the voluntariness determination required in such cases [see §
7.03(b)]. However, it should be stressed that data such as those from Grisso’s instruments and the GSS 1
must be used with care. These instruments do not “establish” voluntariness or involuntariness, or the validity
or invalidity of a rights waiver; they merely give the factfinder some feel for the comparative extent to which
the defendant understands and has the capacity to assert the Miranda warnings.
With respect to the portion of the report concerning competence to plead guilty, note that the writers first
set out their understanding of the legal test (and that their formulation is accurate under Godinez v. Moran
[see § 7.04]). They then address each aspect of it—including the important issues of whether Mr. Bates’s
paranoia may affect his relationship with his attorney, the extent to which he may in fact believe he is guilty if
and when he pleads guilty, and the voluntariness of such a plea. On the latter issue, as the report notes, a
prospective assessment cannot be made, because the examiners have no knowledge of the circumstances
surrounding the plea arrangement.
Because of the complicated nature of Mr. Bates’s delusional system and its possible relevance to the
competence issues, the report spends more time recounting Mr. Bates’s personal history than many
competence reports do. Given Mr. Bates’s history, and his apparent perception of the offense, it is interesting
to speculate whether Mr. Bates should have been found “insane” at the time of the offense. Under the
Durham rule [see § 8.02(b)], he would probably have been found insane because the shooting was the
“product” of his paranoia. Under the American Law Institute or M’Naghten formulations, on the other hand,
whether he would have been found insane might have depended on whether the “appreciation of
wrongfulness” notion incorporated in each refers to awareness that the offense was legally wrong or morally
wrong [see § 8.02(c)(3)]. Mr. Bates clearly knew that his act was wrong in the first sense, but just as clearly
believed that it was “right” in the second sense. Because, for him, the “Law” was in essence breaking the law
by gratuitously attacking his home, killing his pets, and monitoring his every move, he might have been
justified in retaliating. On the other hand, if what he believed to be happening had actually been happening, it
might still have been wrong (morally as well as legally) to react in the way he did, rather than, for instance,

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contacting other authorities.

19.04. MENTAL STATE AT THE TIME OF THE OFFENSE [CHAPTER 8]

(a) Ed Wertz Report

NAME: Ed Wertz
D.O.B.: July 27, 1980
DATE OF REPORT: July 20, 2006

REFERRAL INFORMATION: Mr. Wertz is a 26-year-old married white male who is charged with armed
robbery. The offense occurred on March 3, 2006, when Mr. Wertz allegedly entered the K & K Gun Shop
and robbed the owner at gunpoint, leaving the scene with two semiautomatic rifles and ammunition. Mr.
Wertz was referred to the clinic by his attorney, Mr. Ennis Whitley, who requested an assessment of Mr.
Wertz’s mental state at the time of the offense.

INTERVIEW DATES AND INFORMATION SOURCES: First interview (two hours) by Sally Patton,
Ph.D., on June 19, 2006; second interview (one hour) and Brevital (methohexital sodium) interview (one
hour, 15 minutes) performed by Louis Beck, M.D., on July 3, 2006.
Third-party information reviewed by the examiners included (1) a summary of the investigation report
describing the crime scenario, prepared by Detective Warren Bond of the Columbia police department; (2)
two transcripts of statements given by Mr. Wertz to police officers on March 4 and 5, 2006; (3) photocopies
of handwritten statements prepared by each of three witnesses present at the scene of the crime and by the
arresting officer; and (4) a telephone interview with Jane Wertz (the defendant’s wife) on June 22, 2006.
Professional literature pertinent to the present clinical findings includes the following:

Behar, Flashbacks and Posttraumatic Stress Symptoms in Combat Veterans, 28 COMPREHENSIVE PSYCHIATRY 459 (1987).
Hoge et al., Combat Duty in Iraq and Afghanistan, Mental Health Problems, and Barriers to Care, 351 N. ENG. J. MED. 13 (2004).
Sparr et al., Military Combat, Posttraumatic Stress Disorder, and Criminal Behavior in Vietnam Veterans, 15 BULL. AM. ACAD. PSYCHIATRY &
L. 141 (1987).

PERSONAL BACKGROUND: Mr. Wertz was born in Minnesota and lived there until the age of four, at
which time his parents separated and he moved to Texas and continued living with his mother. He described
both parents as heavy drinkers, and reported that at approximately age 12 he ran away from home because “my
mom was an alcoholic. . . . I was tired of her drinking and the constant parade of men she brought into the
house.” He was subsequently picked up and placed in a foster care home, where he remained until age 18.
At age 22 Mr. Wertz entered the U.S. Army and served a two-year tour of duty in Iraq. It was considered
clinically noteworthy that he had significant difficulty discussing his time in Iraq; with persistent questioning,
however, he gave a brief summary of his combat experiences, including one occasion on which he used a .50-
caliber machine gun to kill approximately 31 insurgents holed up in a bunker.
In 2004 Mr. Wertz married his present wife, Jane (Decker) Wertz. Also at that time he began working at
the Columbia City Hospital as a maintenance mechanic, a job that he held continuously until his arrest on the
present charge. Mr. Wertz’s feelings about his job appear quite mixed. On the one hand he reported, in an

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almost boastful tone, that when on duty he had the maintenance responsibility for the entire hospital and
additional duties as a security person; with respect to the latter duties, he seemed quite concerned that the
examiners understand the importance of his role. He repeatedly stressed the value in having a “nonviolent
person” responsible for calming agitated patients. On the other hand, he also described considerable anxiety
associated with his job, primarily in relation to concerns about how workers on other shifts might perceive
him (and his competence) if he passed uncompleted projects to them at the end of his shift. He also admitted
feeling chronically dissatisfied with the lack of opportunity for advancement.
Mr. Wertz denied any current use of illicit drugs, though he admitted that he had smoked marijuana
during his teenage years. He reported that he occasionally drinks alcoholic beverages (usually beer), but not to
the point of feeling intoxicated.
Mr. Wertz denied any prior contact with the mental health professions. However, he did describe one
prior episode of behavior that is regarded as clinically significant. In September 2005, he was packing his car
to leave for a hunting trip. As he was doing so, he began ruminating about the anxiety and dissatisfaction
associated with his employment, and he considered that he might be forced to desert his family and “run
away” to escape the situation. His next memory of the event is waking up at the hunting cabin, initially quite
disorganized because he could not recall having driven up there (a drive of over four hours). He reported
feeling even more perplexed after inspecting his automobile, which was packed with virtually all his personal
possessions (e.g., tools, clothing); furthermore, he had apparently acquired a powerful rifle (30.06) but had no
recollection of having purchased it. Feeling quite upset, he returned home to his family the next day. Jane
Wertz remembers her husband telling her about the experience on the day he returned, describing it
essentially in the same terms just reported.
There was no indication of prior criminal behavior, either in the police files or in the self-report from Mr.
Wertz.

CIRCUMSTANCES OF THE OFFENSE: At the June 19 interview, Mr. Wertz provided the following
information regarding the alleged offense. After having worked the midnight shift on his job at the hospital,
he arrived home in the morning in time to see his wife off to work and his daughter off to day care. He then
drove to a nearby store, purchased some beer, and returned home, where he began working in his garage. He
reported that he was building a lawn cart for a friend, and his last memory of the morning was of standing in
the garage, staring at the blueprints.
His next memory was of “being in the gun shop with a shotgun in my hand. . . . I can see John [the
owner], and I remember pointing the gun at him.” He also recalled leaving the gun shop with two automatic
rifles and “starting heading west on a dirt road, back toward Winford County.” He could recall no other
details regarding the robbery, nor could he recall the route he took after “heading west.” Mr. Wertz could not
recall stopping his Jeep; nor could he explain why he stopped where he did. His next memory was of standing
in a field, shooting one of the automatic rifles at an abandoned farm building. He recalled that a deputy sheriff
approached and asked, “Why are you shooting at that building?” Mr. Wertz recalled feeling very exasperated
by the question, for he had no idea why he was standing in the field and firing the weapon. He reported that
he readily put the weapon down and agreed to talk with the officer after receiving his Miranda warnings.
Initially he could not recall the robbery and could not explain how the automatic rifles came to be in his

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possession. When the officer mentioned a robbery at the K & K Gun Shop, Mr. Wertz’s memory was jogged,
and he reported the sketchy memories summarized above.
Because of Mr. Wertz’s reported memory at the time of the first interview was quite minimal, the
examiners elected to conduct a subsequent interview with the defendant under the influence of Brevital.
Brevital (methohexital sodium) is a general anesthetic that can be administered intravenously to create an
altered state of consciousness in the subject. Although such chemicals have no proven validity as “truth
serums,” they may be useful in relaxing the subject’s psychological defenses and may permit repressed
memories to surface into consciousness. The Brevital interview was conducted on July 3, 2006, and Mr.
Wertz’s memory was somewhat enhanced by this procedure. He recalled working in his garage on the
morning in question and stated that his cousin, David, dropped in for a visit. He estimated that he consumed
ten beers before leaving home around 11:30 A.M. He reported entering the K & K Gun Shop two times, the
first time simply to use the men’s room. Before entering the second time, he removed the shotgun from his
Jeep and loaded it as he walked toward the door. He described feeling “nervous, scared, hurt . . . I wanted to
give the butt end of the gun to them . . . so they could stop me from what I was doing.” After driving away
from the gun shop, he stopped the Jeep and loaded the automatic rifles. He then proceeded to a deserted farm
and began firing on a concrete outbuilding. He stated that the building reminded him of concrete houses he
had assaulted in Iraq, and he recalled having been bothered by ruminations of his war experience earlier that
day.

PRESENT MENTAL STATUS: Mr. Wertz was on bond at the time of the clinical evaluation. He was on
time for both appointments and presented as a tall, slender white male who was dressed in casual but neat
clothing. He was a cooperative informant who responded to all questions from the staff; he responded without
undue delay and discussed positive and negative aspects of his background without becoming guarded or
defensive. This, along with the consistency between his account of his behavior and the account distilled from
third-party sources, led the staff to view him as a candid respondent. There was no evidence of bizarre or
peculiar thought patterns or perceptual distortions (e.g., hearing imaginary voices); nor did Mr. Wertz report
having previously experienced such symptoms. His mood was variable and appropriate to the topic of
conversation, though he was predominantly serious and somber, and he appeared to have difficulty relaxing.
He admitted to some chronic feelings of depression and dissatisfaction associated with his employment
situation, and to transient periods of increased anxiety and depression associated with memories of combat
experiences in Iraq. He reported that he tries to cope with these disturbing memories by “not thinking about
it.” He otherwise presented himself as a conscientious and responsible member of the community—a
characterization that appears consistent with the available prior history.

MENTAL STATE AT THE TIME OF THE OFFENSE: In the opinion of the clinic staff, Mr. Wertz
was suffering from a significant psychological disturbance at the time of the offense. As noted previously, this
defendant is a veteran of the Iraq war and reported undergoing extremely stressful events during the war,
including witnessing the gruesome deaths of fellow soldiers who fought alongside him. He recalled
ambivalent feelings about his role as a soldier, feeling guilt about having killed other human beings, but also
feeling anger and hatred sparked by his desire to avenge the deaths of his own comrades. Since his discharge,
he has experienced anxiety and depression associated with ruminations about his war experience, and he

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reported experiencing such ruminations on the day of the offense.
Mr. Wertz’s behavior on the day of the crime is, in the staff’s opinion, reasonably viewed as a response to
the recurring stress associated with painful memories of combat—a phenomenon recognized in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), as
posttraumatic stress disorder (PTSD). One characteristic stress response is for individuals to “relive” through
their own thoughts and fantasies the original stressful episodes, in an apparent effort to bring about more
successful (i.e., psychologically acceptable) solutions. Such “reliving” episodes are sometimes referred to as
“flashbacks”; during these episodes, the individuals’ behavior is marked by feelings of detachment or
estrangement from the present-day world around them, and they act “as if” they are back in time when the
stressful event occurred.
Several features of Mr. Wertz’s behavior and recollection of March 3, 2006, suggest that he may have been
in an altered state of consciousness in which he was reliving his Iraq war experiences. Most obvious is the
choice of a target for assault with the semiautomatic weapons taken from the gun shop—a concrete building
on a deserted farm, which visually reminded him of concrete houses he had assaulted during fighting in
Fallujah. It should also be mentioned that Mr. Wertz admits owning several rifles and handguns, but no
semiautomatic weapons such as those he used in the war. Thus a special purpose in obtaining the
semiautomatic weapons is implied. His sketchy memory and reported subjective feelings of ambivalence
during the robbery (“I wanted to give them the butt end of the gun . . . so they could stop me . . . ”) are also
consistent with the kind of altered state associated with reliving prior experiences, during which the
experience of self-control is diminished. In the opinion of the clinic staff, the absence of evidence of careful
planning of the offense, the lack of resistance at the time of arrest, and the absence of other apparent motive
for obtaining these particular weapons lends further credence to this psychological explanation.
Based on research on veterans of the Vietnam war, Sparr and his colleagues (1987) developed criteria for
evaluating the credibility of a “Vietnam flashback” that might also be relevant to Mr. Wertz as a veteran of the
Iraq war: (1) The flashback behavior appears to have been sudden and unpremeditated; (2) the flashback
behavior is uncharacteristic of the person in normal circumstances; (3) the flashback reasonably reenacts one
or more traumatic combat events; (4) the person has amnesia for all or part of the episode; (5) there is no
apparent motivation for the flashback behavior; (6) the offense environment was reminiscent of environmental
features in the war zone; (7) the person is unaware of the specific ways in which he has reenacted prior
experiences; and (8) the victim may be fortuitous or accidental. Virtually all these criteria appear to be met in
this case. Mr. Wertz might have sought treatment after his first flashback (at the hunting lodge), but that
incident apparently was an isolated one, and treatment services for veterans are sparse (see Hoge et al., 2004).
It should also be noted that other research, from Behar (1987), indicates that among Vietnam veterans
with PTSD, flashbacks with disorientation were more common for those who also suffered from alcoholism
(72%) than for those who did not (16%). In other words, drinking may play a role in producing a flashback.
Mr. Wertz reported consuming as many as ten cans of beer on the morning of the offense. The effect of the
alcohol may have been to weaken the elements of self-control he normally uses to control or repress these
recurring feelings about his war experience.
Sally Patton, Ph.D.
Louis Beck, M.D.

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 (b) Discussion

The Wertz report is an evaluation of mental state at the time of the offense (MSO) in a case presenting an
unusual clinical picture. Several points are worth making.
First, an MSO report, like any forensic report, should contain a detailed list of sources, as this one does. Of
special significance are those sources describing the offense. This information will assist the legal system in
assessing the credibility of the report’s offense description.
Second, note the amount of historical material in the report. Compared to the typical competence report,
much more history is presented in an MSO report, particularly history relevant to the individual’s status at the
time of the offense. For example, in this report Mr. Wertz’s war experience and his attitude toward
employment (i.e., his “chronic dissatisfaction” with a lack of advancement opportunities) are discussed because
they are directly related to the clinical formulation of the offense.
Third, the evaluators describe the offense, Mr. Wertz’s feelings while committing it, and his later recall of
it in some detail. In contrast to a competence report, such a discussion is crucial to an MSO evaluation, for
the obvious reason that it is highly relevant to insanity and other mental state claims. It also enables the legal
system to “see” an offense through a clinician’s eyes, and thereby to evaluate more effectively the clinical
explanation of the offense. For example, if the clinician describes the offense in a manner wholly at variance
with the eventual determination by the legal system as to how the offense actually occurred, clinical
explanations of behavior will become less compelling. Conversely, if the explanation of the offense is generally
consistent with the legal system’s views (or at least those of one side of the controversy), the clinical
conclusions may be more persuasive. In this regard, it should be noted that the writers carefully give reasons
why they believe Mr. Wertz to be credible about the offense—an issue of paramount importance to an MSO
report.
Fourth, the writers have sought and relied on a wide range of data outside the clinical interview to support
their opinion. Relevant literature about postwartime stress is cited (although it should have been more
current), and a Brevital interview was conducted. In each case, the report tries to make clear the extent to
which the data were relied on and the possible problems with their use, as well as popular misconceptions that
might contaminate a reader’s response to the report. For instance, the writers carefully avoid equating Brevital
with “truth serum.” Because malingering may be an issue in a case such as this, the authors might have made
use of other techniques designed to detect feigned symptoms [see § 3.06].
Note also that, given the relatively untested theories and procedures on which it relies, the admissibility of
all or parts of the report (as well as testimony based on the excluded portions) might be challenged. For
instance, the trial court might decide, in a Frye jurisdiction, that PTSD is not generally accepted (despite its
inclusion in DSM) or that the Brevital procedure is not sufficiently established in the field. In a Daubert
jurisdiction, the court might reach the same ultimate conclusions, but based on a finding that the scientific
validity of these clinical devices has not been proven [see § 1.04(c)].
Finally, note that although the clinical conclusions are given in detail and with an absence of jargon, the
report does not give an opinion on the ultimate legal issue of insanity. The report—properly, in our view—
leaves to the legal system the legal significance of the clinical material, which may or may not have established
insanity, automatism, diminished capacity, or some other defense [see §§ 8.02, 8.03].

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 Consonant with our recommendations in § 4.02(b), a report of this type should not be sent to the
prosecution prior to the defendant’s notice of an intent to raise a defense of mental abnormality. Instead,
unless the court orders otherwise, we recommend that only a short summary containing no incriminating
material be sent to the prosecutor prior to such notice.

(c) Seth Hedges Report

NAME: Seth Hedges

D.O.B.: January 6, 1991
DATE OF REPORT: June 2, 2012

IDENTIFYING DATA: Mr. Seth Hedges is a 22-year-old white male. He is charged with kidnapping to
facilitate a felony and attempted sexual battery with some force or violence, events which allegedly occurred on
April 15, 2012. He was admitted to the Forensic Service of Florida State Hospital on April 20, 2012, after
being found incompetent to proceed by the Honorable John Shell, Jr., Circuit Court Judge in the Circuit
Court of the Fourth Judicial Circuit, in and for Clay County, Florida. Judge Shell has now ordered that the
hospital staff evaluate his sanity at the time of the offense, after his attorney gave formal notice of the defense
on May 5, 2012.

PROCEDURES: To assess Mr. Hedges’s sanity at the time of the alleged offense as set forth in the Florida
Standard Jury Instructions (the M’Naghten test), the following procedures were carried out. Mr. Hedges was
interviewed on May 11, May 17, and June 2, 2012, and was given the Minnesota Multiphasic Personality
Inventory–2 (MMPI-2) on May 20, 2012. His medical record and ward chart were also reviewed; these
records include documents received from the court concerning the alleged offense, an admission summary and
social history, reports on treatment progress, and descriptions of current behavior. Interviews were also
conducted on May 28, 2012, with Mr. Hedges’s parents, Ken and Sarah Hedges (2012); with Detective Joe
Fox, who transported Mr. Hedges to the Clay County Jail following his arrest; and with Ms. Diane Shorty,
the victim of the alleged offense. Before the evaluation began, Mr. Hedges was informed of its purpose and
the associated limits on confidentiality. Specifically, he was told that he was being evaluated as a result of a
court order requiring assessment of his mental state at the time of the offense, and that the results of the
evaluation would be sent to the court, the prosecutor, and the defense attorney. He appeared to understand
this notification and agreed to participate.

RELEVANT HISTORY: Mr. Hedges was born in Reno, Nevada, and was adopted at the age of five by Mr.
and Mrs. Hedges. He has a younger brother who was also adopted. The family moved from Nevada to
Tuscaloosa, Alabama, and then to Melbourne, Florida, when he was about 12 years old. Mr. Hedges appeared
to do well in school up until approximately the fifth grade, when he started to have disciplinary problems. He
was suspended from high school twice for skipping school and being “the class clown.” He has worked at
various types of unskilled labor (including in construction and at fast-food restaurants), but no job has lasted
for any longer than one or two months, with many lasting only a few days. His criminal history includes two
charges of driving under the influence of alcohol, one of which involved an accident while drinking and

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resulted in the loss of his driver’s license for five years. He has also been arrested for forgery and uttering,
trespassing, and failure to appear on a charge of indecent exposure. Mr. Hedges began to drink and eventually
abuse alcohol beginning at age 14, and began to use marijuana heavily at approximately age 13. He reports
that he has tried speed and cocaine, but not on a consistent basis. His previous psychiatric history includes a
year-long stay at Florida State Hospital, as well as two admissions to PATH (the local receiving unit for civil
commitments); he also completed a month-long residential treatment program through Gateway Services in
Jacksonville. His previous diagnoses (based on the Diagnostic and Statistical Manual of Mental Disorders,
fourth edition (DSM-IV)) have been bipolar I disorder, current episode manic (a diagnosis explained further
below) and mixed substance abuse, as well as antisocial personality disorder and alcohol abuse. According to
treatment records, the examinee responds well to lithium and antipsychotic medications.
The bipolar disorder was apparently diagnosed for the first time in 2010, when the examinee was
committed to PATH (where he stayed one month). There followed a commitment to Florida State Hospital
(admitted September 5, 2010; discharged June 20, 2011 after two four-day leaves of absence in March and
April 2011, respectively). Following his discharge from Florida State Hospital, he returned home to live with
his parents. At first, according to his parents, he “lay around the house, shaved badly, didn’t work, and had to
be helped with simple jobs.” He went through vocational rehabilitation and subsequently obtained a job at
Goodwill, from which he was reportedly fired for sleeping on the job. After attending day treatment at Forest
County Mental Health Services (FCMHS) for three weeks in July 2011, he boarded there briefly in their
halfway house. He then began working a series of restaurant jobs (Calico Jack’s Oyster Bar, Perkins, Western
Sizzlin’, Lorenzo’s) that lasted anywhere from three days to two months. He also bought expensive ($1,600)
musical equipment and worked in yards as well as at the previously noted jobs to keep up his payments. He
joined a band as well that fall, but the band “let me go” after six weeks, reportedly because of his psychological
difficulties. During this period he continued to keep his scheduled medication appointments at FCMHS,
being prescribed mood-stabilizing (lithium) and antipsychotic (Zyprexa) medications by Dr. Mark Fisher.
It was also during this period that he first met Diane Shorty, who was eventually the victim of the alleged
offense. She was the general manager of the Perkins where Mr. Hedges began working in late August/early
September 2011. Although she saw little of him during that time (she worked the day shift; he was on the
night shift in the kitchen), she did report interviewing him and hiring him for the job. She stated that she saw
“nothing unusual or untoward” about him, particularly in terms of behavior toward her, during this time.
Their employment overlapped for three weeks, at which time she left to establish her own business. She said
that her departure was not related in any way to him; she had already given notice before he was hired.
She next saw him “around Thanksgiving,” when he came into her store in the Gateway Mall. She reported
that he complimented her on her appearance, saying something like “You sure look gorgeous,” or “You look a
lot better in those clothes than in your Perkins uniform.” Mr. Hedges stated that he did not remember this
meeting. Several weeks later, according to Ms. Shorty, she was getting gas in an Exxon station on Loganville
Road when Mr. Hedges pulled up to the pump next to her. He then leaned out of the passenger side of the
truck (driven by another man) and “asked me to get in the car and go get married.” Ms. Shorty did not know
whether he was joking, but said, “He wasn’t smiling.” She immediately walked over and notified the station
manager, and Mr. Hedges apparently drove off. Mr. Hedges did recall riding in a truck with a friend
(“Chester”) that day and said he “might have” made that comment, but added, “I say that to all the girls.”

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 Ms. Shorty reported that Mr. Hedges was “in and out of the store quite a bit over Christmas.” On one
occasion, he reportedly asked her whether she had plans for New Year’s. She replied, “Yes, I do.” He then
said, “My band’s playing; why don’t you come watch?” She repeated, “I have plans.” She added that she was as
direct as she could be in discouraging his advances “without having him thrown out of the store.” Mr.
Hedges’s recollection was vaguer but somewhat different. He recalled asking her to come watch his band play,
but said it would not be a “date”; “she’d just be coming with a friend.” When asked how she responded to his
invitation, he replied, “She probably said, ‘I’ll try to.’ ”
Their last meeting before the day of the alleged offense took place on Saturday (April, 13, 2012), when
Mr. Hedges was in the store and made several comments such as “You sure look pretty today,” and “Are you
still dating the same guy?” Ms. Shorty, who felt uncomfortable around him at this point, asked another
customer in the store (a neighbor of hers) to stay until he left.

MENTAL STATE AFTER OFFENSE AND DURING INTERVIEW: Following admission to Florida
State Hospital, Mr. Hedges was evaluated by the admitting psychiatrist, Frank Boz, M.D. Dr. Boz found Mr.
Hedges to be “agitated but cooperative, with very poor eye contact and also flat affect (emotional content). He
was also quite easily distracted.” Dr. Boz also noted that Mr. Hedges reported that he was hearing voices,
“both male and female, which seemed to be in pain but did not state why they were in pain.” Dr. Boz also
reported that Mr. Hedges stated “he saw a vision in which he saw Jesus and got messages from TV. He
further felt that people frequently talked about him.” Dr. Boz offered a DSM-IV diagnosis of bipolar I
disorder, current episode manic; mixed substance abuse; and antisocial personality disorder. Mr. Hedges was
continued on medication, and he is currently being maintained on 1,200 mg of lithium and 40 mg of Prolixin
daily, which he had been taking for two weeks at the time of the first interview.
During the present interviews, Mr. Hedges presented as appropriately, although somewhat carelessly,
dressed and groomed. Mood appeared markedly anxious, with affect blunted (i.e., with very little emotional
expression). He was oriented correctly as to time, place, and person. Overall level of intellectual functioning
was not formally measured, but appeared to be in the low-normal to normal range. His speech was largely
coherent and relevant, although occasionally tangential (digressing from the topic on hand). There were no
indications of currently held delusions, although Mr. Hedges acknowledged having had bizarre beliefs (such
as getting messages from the TV and having “special powers”) at previous times. Results obtained from the
MMPI-2, a diagnostic personality inventory (or test), suggest the possibility that the examinee was
experiencing symptoms associated with depression and an impaired thought process. Individuals with MMPI-
2 profiles of the type produced by Mr. Hedges are often described as excitable, tense, and anxiety-prone.
Strong emotional reactivity (an inability to modulate behavior) is often seen in these types of individuals.
Exaggerated needs for affection and basic insecurity are often noted as well, as are argumentativeness, irritable
rebelliousness, and egocentricity.

SANITY AT THE TIME OF THE ALLEGED OFFENSE: Mr. Hedges was arrested on April 15, 2012.
During the ten days prior to the arrest, he was described by his parents as follows. On April 6, Mr. Hedges
attempted to have himself admitted to PATH, as he felt “way up” and was having trouble sleeping. On April
7, he was advised by Dr. Fisher to continue on his medication but not to enter PATH. After attending a
Narcotics Anonymous meeting at PATH on April 8, Mr. Hedges again asked to stay at PATH, which he was

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permitted to do for one night. On April 10, Mrs. Hedges spoke with Dr. Cortez, describing Mr. Hedges as
“manipulative and obnoxious.” On April 12, Mr. Hedges was taken by a friend to day treatment and appeared
to his mother “still way up.” He arose at 3:30 A.M. on April 12 and seemed to his parents to be “irrational and
argumentative,” demanding money. He again awoke and dressed at 3:30 A.M. on April 14, and “wanted to go
looking for a job right then.” He “called 30 minutes later from a phone on Capital Circle, saying there were
packs of dogs after him.”
Later that morning, he was taken to PATH but apparently could not be seen by Dr. Fisher. That
afternoon, he did not appear for a yard job that his mother had arranged. On April 15, the day of the alleged
offense, he again awoke at 3:30 A.M. and wanted to go to the mall. His mother took him to Tallahassee Mall
at about 8:00 A.M., telling him, “Son, be careful, you’re awfully manic today.”
Mr. Hedges’s own account of his thinking and behavior on the day of the alleged offense began as quite
vague. He initially stated that he “blacked out” and remembered nothing about the entire day. Upon
questioning based on the accounts of others, he reported recalling some of the details. Frequently during our
interviews, however, he would stop and say something like “I don’t remember, I was sick, I was insane, I
didn’t know what I was doing.” Although some of the vagueness is probably a function of his manic
condition, it is noteworthy that his account of his thinking would become considerably vaguer when he was
asked about potentially damaging information. At the same time, the more he was questioned about the
events, the more forthcoming he was about them, suggesting that his claimed “lack of memory” was
malingered.
He reported that he arrived at the mall “about 10:00” on April 15 and stopped in Ms. Shorty’s store “for
cigarettes.” According to her account, he was waiting outside the store when it opened at 10:00. When it was
opened by a male colleague (Mr. Hooper) rather than Ms. Shorty, Mr. Hedges reportedly walked away. He
returned at 10:30, “walking in quickly right after I arrived.” He left several minutes later when Mr. Hooper,
still in the store, came out from the back room with a customer. At about 10:30, Mr. Hedges returned to the
store for a third time. Ms. Shorty, feeling uncomfortable, left to get stamps and a book. When she returned
five minutes later, she saw that Mr. Hooper, who had been talking with Mr. Hedges, had a “horrified look”
on his face. Apparently, Mr. Hedges had been asking how she was “in bed.” At this point, Mr. Hedges
reportedly stuck out his hand to Mr. Hooper, said, “I’m Seth Hedges,” and left the store. Mall security officers
were then notified, and they said they would look for Mr. Hedges and watch the store.
Mr. Hedges’s own account included only one stop in the store that morning, “for cigarettes.” He could not
(or would not) describe further details of this visit or the other visits before the offense, even when prompted
with others’ accounts. He did report going into the New Life Health Club in the mall sometime that
morning, and thinking there were girls in the spa having sex. According to the club’s receptionist, he took off
his clothes in a room with exercise equipment and was asked by club staff to put them back on.
Mr. Hedges next remembered being outside the store at about 2:00, which coincides with Ms. Shorty’s
recollection of the approximate time. He then recalled going in the store and taking off his clothes. He
remembered that she was screaming and that he was trying to have sex with her, but stated that they were not
fighting. He also recalled having a sheriff’s deputy come into the store, point a gun at them, and threaten to
“blow my head off” unless he released her. He stated that he released her immediately. Ms. Shorty indicated
that Mr. Hedges disrobed immediately upon entering the store, saying, “Let’s make out,” or “I’ve been

791
working out.” He then grabbed her as she attempted to reach a metal pipe she had put behind the cash
register. At this point, he was saying, “Be quiet, Ms. Shorty, let’s do it just a little, fuck me, fuck me.” She
reported that he had an erection. He then pushed her into the stockroom and tried to push her face to his
penis; shortly after that, Detective Joe Fox arrived. All parties (Hedges, Shorty, and Fox) agree that Fox
identified himself as a police officer and said, “Let her go or I’ll blow your head off.” According to Ms. Shorty
and Detective Fox, however, Mr. Hedges did not immediately release her (as he reported), but said “No” and
held her body between himself and the weapon. Fox then cocked the weapon and Ms. Shorty bent over,
exposing Mr. Hedges to the line of fire. At that point, he released her.
As he was being transported to Clay County Jail by Detective Fox, Mr. Hedges appeared “fairly calm.” He
put on a jumpsuit Fox had brought, with “no resistance or comments.” During their drive to the jail, Mr.
Hedges reportedly told Detective Fox that he had gone “door to door” in the mall, looking for a girl “to have
fun with.” He also stated, regarding Ms. Shorty, that “I always wanted to get some of her,” and that “all I
wanted was a little pussy—there’s nothing wrong with that.”
It is clear that Mr. Hedges was experiencing some active symptoms of bipolar I disorder on April 15,
notably impulsivity and a highly sexualized manic “high.” He also reported that he thought he had “special
powers to heal,” so he may have been experiencing some grandiose thinking as well (this is more difficult to
judge, as none of the descriptions of him that day contain accounts of speech that would clearly reflect the
presence of such delusions, and Mr. Hedges himself appeared at times to exaggerate the symptoms he
experienced). Impulsive behavior, grandiosity (i.e., beliefs about one’s powers that are not based in reality),
and manic (i.e., hyperactive) behavior are typical of people diagnosed with bipolar I disorder. All these
features could have affected Mr. Hedges’s knowledge of the wrongfulness of his conduct with Ms. Shorty. In
answer to a direct question about the wrongfulness of his actions, he stated: “Hell, I know it’s wrong to rape.
But she wanted it. It was the way she looked at me. Girls always go for me. She wanted me bad, which is why
I still don’t understand why that cop came at me with the gun.” When asked whether he thought it was
strange to approach a woman in a public place, he stated, “Hell, we were behind the counter. No one would
have bothered us if it hadn’t been for the stupid cop.”
On the other hand, there is also clear evidence of a long-standing social and sexual attraction to Ms.
Shorty, which was not reciprocated. Having seen her at her store on a number of previous occasions, and (in
another setting) suggested they get married (jokingly or not), would all suggest a pattern of persistence in the
face of refusal and increasingly intimate advances that are more characteristic of personality disorder (i.e.,
antisocial personality disorder) than mood disorder (i.e., bipolar I disorder). Mr. Hedges’s previous diagnosis
of antisocial personality disorder cannot be definitively confirmed by this evaluator, but he does have a history
of antisocial behavior and an apparent inability to feel remorse for or appreciate the harm his acts can cause
others—two hallmarks of that diagnosis.

CONCLUSIONS: In the opinion of the undersigned, based on all of the factors described above:

1. Seth Hedges was experiencing some active symptoms of bipolar I disorder on April 15, 2012, most
notably impulsivity, diminished judgment, and a highly sexualized manic “high.”
2. These symptoms interfered with his ability to control his sexual attraction to Ms. Shorty. His choice of
her as a victim, however, appeared strongly influenced by his prior knowledge of her. He appeared to retain

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some limited sense of the nature and wrongfulness of his conduct, as evidenced by his repeated brief visits to
her shop that morning, leaving when Mr. Hooper appeared, telling her to be quiet, and releasing her when
exposed to the line of fire.
Zebulon Fike, M.D.

(d) Discussion

Note again how, as in the Ed Wertz report, the evaluator carefully lays out the differing descriptions of the
alleged offense. The accounts of the victim and any other eyewitnesses are critical in such assessments of
responsibility. When such accounts are available, relying solely on the defendant’s often self-serving version
(unfortunately a common occurrence) borders on “evaluation malpractice.” Also important is the
“triangulation” carried out by this evaluator—that is, elicitation of information about the defendant’s mental
state, both before and after the offense, from the defendant and other sources (family, victim, and
professionals). This information helps in understanding and corroborating accounts of MSO. Morse even
suggests that this type of information is all that is needed in an MSO report [see § 1.04(a)]. Consider, for
instance, whether the diagnostic and explanatory opinions provided by Dr. Fike are “helpful” to the factfinder
or merely superfluous personal judgment if the factual information just described is provided to the factfinder
(by a mental health professional or, alternatively, by the parents, the other doctors, the victim, and the
detective).
Putting that evidentiary issue aside, is Mr. Hedges insane? In contrast to the Wertz case, the evidence that
this defendant suffers from a serious mental disorder is unquestionable; the diagnosis of bipolar I disorder
clearly applies to him, is well accepted, and is considered “valid”—presumably sufficiently so for legal purposes
under Frye and Daubert [see § 1.04(c)]. What is uncertain is the effect the disorder had on the defendant’s
behavior at the time of the offense. Recall that the coexistence of mental disorder and a criminal offense does
not prove insanity; even under the Durham (or product) test, some proof that the former caused or at least
contributed to the latter must be shown [see § 8.02(c)(2)]. Furthermore, even if such a link exists, there must
also be proof of the specific dysfunction required by law. In this jurisdiction the relevant doctrine is the
M’Naghten test, which is a “cognitive” test and thus does not countenance insanity based solely on volitional
impairment of the type often manifested by those with bipolar I disorder. In this case, the evaluator points out
that Mr. Hedges’s criminal behavior could have been influenced by either the bipolar I disorder or his
antisocial tendencies, and notes that in any event, the degree of cognitive distortion was unclear. Left to the
trier of fact are the ultimate issues (whether the manic behavior or the antisocial tendencies were the most
significant contributors to the action; whether a lack of remorse due to the latter equates with an inability to
know that his actions were wrong; whether his attempts to obtain help prior to the offense mitigate his
responsibility in any way).
Another interesting legal issue posed by this case is whether Mr. Hedges had the “intent” to commit rape.
Generally, rape requires only an intent to have intercourse with a woman under circumstances that would lead
a reasonable person to know she was not consenting; in some jurisdictions, however, conviction may occur
only if the defendant knew the victim was not consenting [see § 8.03(b) for discussion of the objective and
subjective definitions of mens rea].

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 19.05. SENTENCING [CHAPTER 9]

(a) Leland Jennings Report

DATE OF REPORT: August 31, 2006

DATE OF EVALUATION: August 28, 2006
IDENTIFYING DATA:
EXAMINEE: Leland Jennings
ID #: 9036643
D.O.B.: April 27, 1960
AGE: 46
ETHNICITY: White
JUDICIAL CIRCUIT/COUNTY: Pinellas

REASON FOR REFERRAL: Mr. Jennings was referred by the Florida Department of Children and
Families Sexually Violent Predator Program. The purpose of the examination was to determine whether Mr.
Jennings meets criteria for involuntary civil commitment as a Sexually Violent Predator, pursuant to Chapter
394, Part V, Florida Statutes.

NOTIFICATION/INFORMED CONSENT: Mr. Jennings was presented with a copy of the Sexually
Violent Predator Program Informed Consent for Mental Health Evaluation form, both orally and in writing.
Using this form as a framework, the evaluator informed Mr. Jennings of the nature and purpose of the
evaluation and the limited confidentiality of the ensuing report. He was also informed that he was not
required to speak to the evaluator, that he had the right to refuse any questions asked of him, and that his
decision to participate in the examination would not guarantee any particular outcome regarding the exam.
Finally, he was informed that he had the right to consult with an attorney regarding participation in the
evaluation. Mr. Jennings acknowledged an understanding of the information as presented by the evaluator. He
was able to summarize relevant points of this information, and he was provided the opportunity to ask
questions concerning the evaluation. He agreed to be interviewed.

EVALUATION PROCEDURES:

Review of records (See Appendix I for list of documents)

Clinical interview
Administration of the following instruments:
Static-99
Hare Psychopathy Checklist—Revised (PCL-R), Second Edition

RELEVANT HISTORY:

Chronology of Juvenile and Adult Charges with Apparent Sexual Motivation. The table is a summary of Mr.
Jennings’s charges and dispositions in connection with sexually motivated crimes.

Summary of Juvenile and Adult Charges without Apparent Sexual Motivation: Mr. Jennings denied any

794
history of childhood behavioral difficulties. There are no records documenting the examinee’s childhood
adjustment and functioning in Indiana (where he was born and raised). Nor is there any documentation or
self-report concerning a juvenile offense history. It appears that Mr. Jennings’s criminal history began at the
age of 20 with convictions for Petty Larceny, Disorderly Conduct, and Criminal Mischief, and dismissed
charges of Harassment and Criminal Contempt.
Note that around the time of Mr. Jennings’s 1993 sex-offending spree (detailed in the adjacent table), the
examinee also committed two separate Burglaries of a Dwelling that were apparently nonsexual in nature,
with the victims being couples (rather than older women residing alone). It should also be pointed out that the
1986 sexual offense described above was a violation of probation that Mr. Jennings received in connection
with a Criminal Mischief charge. Additionally, in 1991, Mr. Jennings violated parole by leaving Indiana and
moving to Florida, after which he was extradited to Indiana and incarcerated for eight additional months.

History of Sex Offender Treatment: While serving time, Mr. Jennings was screened for sex offender treatment
in the Florida Department of Corrections (DOC) on two occasions (09/28/2005 and 05/12/2002). In 2002,
Mr. Jennings reported that he was amenable to treatment. The Sex Offender Screening and Selection Form
filled out in 2002 reported that “Inmate cited family told him to get help in prison. Cites it was exciting to
commit [breaking and entering], and sex offenses were merely crimes of opportunity. Cites conversion to
Christianity since incarceration as important factor in accepting responsibility for his actions.” In contrast to
the statements above, Mr. Jennings stated during the 2005 screening that he did not want to participate in sex
offender treatment. During the current examination, Mr. Jennings denied that anyone in DOC had ever
talked to him about sex offender treatment and stated, “There’s no programs for it in prison.”

Family and Social History: Mr. Jennings stated that he was born and raised in Gary, Indiana, and has lived in
Pinellas County since 1992. Mr. Jennings reported growing up with his biological parents, two brothers, and a
half-sister. His father was employed at a factory, while his mother worked as a waitress. Although he states
that he was never abused, neglected, or subjected to corporal punishment by his parents, and that neither
parent used alcohol or drugs, Mr. Jennings did acknowledge “a little” domestic violence between his parents.
He does not know of any history of mental illness within the family.

Date Offense Disposition

06/27/93 Case #: 93-35560 Count 1:

(O) Count 1: Burglary of a Dwelling with Battery Guilty, 20 yrs
12/08/93 Official Description: According to a Post-Sentence Investigation Report (dated 07/18/94), the defendant DOC with
(A) entered a residence with a ladder through a second-story window. Once inside the residence, the defendant credit for 195
entered the victim’s bedroom and placed his hand over her mouth, awakening her. A Complaint Affidavit days served,
indicated that Mr. Jennings got into bed with the victim. The victim was able to break free and tried to leave concurrent.
the bedroom. The defendant caught the victim, and she started to yell. The defendant exited through the
same window he had entered. At the time of this incident, the defendant was naked.
Examinee’s Account: “I think that’s the one I used the ladder. Went through her purse again. Looked
around. She was laying in bed. Went up to her and did the same thing, just fondled her. She jumped up,
screamed. I left.” The examinee was questioned in reference to the documentation that he was naked at that
time. Mr. Jennings responded, “They would recognize me if I had more clothes on.” He admitted to getting
into bed with the victim while naked, but denied any intention of sexual intercourse.

795
04/15/93 Case #: 93-35558 Count 1:
(O) Count 1: Burglary of a Dwelling with Battery Guilty, 20
12/08/03 Count 2: Battery Upon a Person 65 Years of Age or Older years DOC
(A) Official Description: According to the Post-Sentence Investigation Report (dated 07/18/94), the examinee with credit for
unlawfully entered a residence, went into the kitchen, and rummaged through the victim’s purse, taking 195 days time
approximately $200. After committing the theft, the examinee walked to the 66-year-old victim’s bedroom, served,
pulled the victim’s nightgown up, exposed her breasts, and began sucking and biting on them. It should be concurrent.
noted that the victim was a person over the age of 65. Count 2:
Examinee’s Account: Mr. Jennings admitted to this offense, but reported that he could not remember any Guilty,
pertinent facts. When attempts were made to refresh Mr. Jennings’s memory (i.e., by reciting documented 5 years DOC
facts concerning this offense), the inmate denied touching the victim’s breasts. with credit for
195 days
served,
concurrent.

04/01/93 Case #: 93-35488 Found Guilty

(O) Count 1: Sexual Battery of Sexual
12/02/93 Count 2: Kidnapping Battery (Count
(A) Count 3: Burglary of a Dwelling with Battery 1); Assault,
Official Description: According to the Post-Sentence Investigation Report (dated 07/18/94), the defendant Reduced
forcibly entered a residence, pushed the 65-year-old occupant onto the bed, held his hand over her mouth (Count 2);
and nose, and forced sexual intercourse upon her. The examinee also rummaged through the victim’s purse Burglary of a
and took a small undetermined amount of currency. Dwelling with
Examinee’s Account: “I broke in looking for some money. Went through her wallet and stuff. She woke up Battery (Count
to use the bathroom or something. I startled her, went into the bedroom. Threw her on the bed and fondled 3).
her . . . just took off.” Mr. Jennings denied that any sexual intercourse occurred and only admitted to fondling Count 1:
the victim’s breasts. When asked why he thinks that he engaged in such behavior, the examinee responded, Adjudicated
“The excitement, I guess.” guilty, 20 yrs
DOC with
credit for 201
days served.
Count 2: 60
days jail with
credit for 60
days served.
Count 3: 20
yrs DOC with
credit for 201
days served,
concurrent to
Count 1.

03/09/86 Case #: 86-0338-001 On 02/24/87,

(O) Count 1: Burglary, First Degree defendant pled
Unknown Count 2: Robbery, Second Degree guilty to
(A) Count 3: Sexual Abuse, First Degree Burglary of a
Official Description: According to the Post-Sentence Investigation Report (dated 07/18/94) the victim (age Dwelling; 1
unlisted) was awakened in her bedroom by someone standing in her room over the bed and fondling her year, 8 months
breasts. As she screamed and resisted, the examinee threw her to the floor and attempted to hold her down, to 5 years
after which he fled the apartment. The victim later discovered that $240 was missing from her purse. prison (Gary,
Examinee’s Account: “I just broke into her house, there was money and food stamps on the table, and I took IN).
that. Then I went into where she was. She woke up when I was there. She was telling me to get out and
screaming. I just lifted up her shirt and fondled her breasts and ran home.” Mr. Jennings reported that this

796
 victim, and all of his other victims, were strangers. When Mr. Jennings was asked why he fondled the victim’s
breasts, he responded by stating, “I just wanted to see what she looked like.”

Additional Mr. Jennings’s was questioned concerning why he sexually victimized older women. Mr. Jennings responded by
comments stating, “I don’t want to say they were lying, but none of them were that age.” The examinee further reported
that, in court, “They put three old ladies up there and said they were the victims; they weren’t the victims.”
When asked why he had sexually assaulted the victims, Mr. Jennings responded, “I don’t know. I was living
with my wife, having sex with her. She was providing. I broke in and just got carried away, I guess.” Mr.
Jennings denied being sexually excited by his victims and stated, “I feel terrible about all of this. I’ve hurt my
family, my girlfriend and victims.” Mr. Jennings’s affect (demeanor) was not judged as being congruent with
the latter statement.

Mr. Jennings stated that after discharge from the military at the age of 19 (see below), he remained in
Indiana for 12 or 13 years, during which time he was incarcerated for approximately 3 years. He married
during this time, but was divorced after 4 years, which he attributed to his incarcerations. He reported no
other history of “live-in” relationships. Mr. Jennings also reported having a 24-year-old daughter from a prior
relationship, but stated that he neither saw her nor provided financial support for her.

Education: Mr. Jennings reported graduating from high school. He described a generally good behavioral
adjustment when in school, with no suspensions or expulsions. No educational records were made available to
this examiner.

Military and Employment History: The examinee reported that shortly after high school graduation, he
enlisted in the Army. He reported that he came to dislike the service after a period of two months, at which
point he “lied to the doctor” about a false medical condition, which resulted in a Medical Discharge. No
military records were available for review. Mr. Jennings described a rather marginal work history with
sporadic, short-term employment in primarily unskilled positions (e.g., lawn cutting, housepainting, day
labor). After leaving the military, reported Mr. Jennings, he lived with his parents, who provided his primary
financial support. After marrying, he was supported by his wife. Since his divorce, he has supported himself
with short-term employment.

Mental Health History: Mr. Jennings was court-ordered to attend outpatient counseling in Indiana. During
the current exam, the examinee stated, “I was there to see a psychiatrist and talk; it was mandatory.” Records
reviewed indicate that the inmate was not motivated for treatment and participated sporadically. Mr. Jennings
states that he has never been admitted to a psychiatric hospital, and he has never taken psychiatric
medications.

Substance Abuse History: Mr. Jennings reported that he began to use alcohol at the age of 17, and he
described a pattern of sporadic abuse through the age of 22. He said he has abstained since then. There is no
reported or documented history of drug use.

Behavioral Adjustment during Current/Prior Commitments: Florida DOC records document a generally
stable institutional adjustment during his most recent imprisonment of 12 years, with a total of three
Disciplinary Reports for Failure to Comply, Disobeying Orders, and Participating in a Riot. Although Mr.

797
Jennings reported he had previously worked as a “kitchen trusty” at another correctional institution, he stated
that he was not consistently working at his current institution.

CLINICAL INTERVIEW DATA:

Current Mental Status: Leland Jennings is a 46-year-old white male. At the time of the exam, grooming and
hygiene were appropriate, and no gross physical or developmental abnormalities were observed. Mr. Jennings
was oriented to time, place, and person. There was no evidence or reports concerning underlying thought
disorder or related psychotic-like symptomatology. Rather, his thinking was logical, goal-directed, and
“reality-based.” The inmate understood commands and followed directions. He did not display inattention or
distractibility. Memory for recent and remote events appeared to be intact. According to DOC records, Mr.
Jennings’s intellect was previously assessed as falling within the Low-Average to Average range (i.e., Beta II-R
score of 89).
Mr. Jennings was friendly, compliant, and appropriately interactive throughout the duration of the
examination. He appeared somewhat tired and lethargic, yet he smiled and chuckled with spontaneity. He
stated that he has not been sleeping well, because he has been worried about the fact that no postrelease
residence is available to him, and he does not know where he will stay upon his return to the community. Mr.
Jennings stated, “I have to stay in Florida. No family, no friends, nowhere to go here.” Mr. Jennings indicated
he had no history of ongoing anxiety or depression, or of homicidal or suicidal ideas or behaviors.

Sexual Development and Experience: Mr. Jennings denied any history of childhood sexual
abuse/victimization. He reported no history of homosexual interactions and stated, “I was a virgin until I was
21—she was 17.” The examinee denied any contact with prostitutes and admitted to “cheating on my wife
twice, I think.” Mr. Jennings estimated having “about five” sexual partners over the years, four of whom were
“really one-night stands.” He denied any involvement/interest concerning pornography or frequenting strip
clubs.
Mr. Jennings reported that he began to masturbate at the age of 13, and he stated that he currently
masturbates “maybe once a week” while focusing on “being with my ex-wife.” Mr. Jennings denied ever
having any sexual fantasies concerning victims of his sex offenses, and he denied any interest in activities such
as sadomasochism or bondage.

TEST RESULTS AND INTERPRETATION:

Static-99: The Static-99 is a brief actuarial instrument (10 items) designed to estimate the probability of
sexual and violent recidivism among adult males who have been charged with at least one sexual offense
against a child or nonconsenting adult. In this assessment, the instrument was scored utilizing the 1993
offenses (Case #’s 93-35488, 93-35558, 93-35560) described in the table. On the Static-99, Mr. Jennings was
ranked with a total score of 6 (i.e., out of a possible score of 12). The score of 6 places the inmate in the High
risk range (concerning sexual violence recidivism), as defined by the authors of the Static-99.

PCL-R: The PCL-R (Second Edition) assesses psychopathy. The construct of “psychopathy” generally
describes an individual who does not profit from experience, who lacks a sense of responsibility, who is unable
to form meaningful relationships, who lacks control over impulses, who lacks a moral sense, and who is

798
chronically antisocial. Such individuals are frequently described as being emotionally immature, unable to
experience guilt, and self-centered. On the PCL-R, Mr. Jennings’s ranked total score of 26.3 falls below the
cutoff for “prototypical” psychopathy (defined as a total score of 30 or above).
Nonetheless, Mr. Jennings’s total score of 26.3 serves to identify the presence of psychopathic features.
Compared to a large sample of North American male offenders (N = 5,408), this inmate’s PCL-R score falls
at the 67th percentile. Consequently, Mr. Jennings demonstrates more psychopathic features than the
“average” male offender. It should also be pointed out that he scored at the 68th percentile on the PCL-R
dimension that identifies the presence of an unstable and antisocial lifestyle, which is associated with a
significant degree of impulsivity, irresponsibility, and social deviance. There was also an elevation (65.8th
percentile) on the PCL-R dimension that identifies the callous and remorseless use of others. Finally, it
should be pointed out that research pertaining to the PCL-R and sexual offenders indicates that the
combination of sexual deviance and a PCL-R score of 25 or above has been associated with increased risk for
sexual recidivism.

STATIC–DYNAMIC VARIABLES/MITIGATING FACTORS: The following analysis evaluates Mr.

Jennings, based on factors that have some relationship to risk.

Antisocial Orientation: Available information indicates that Mr. Jennings has a history of antisocial behavior,
which includes sexual offenses, (nonsexual) violent offenses, and general criminal offenses. There have also
been two violations of community supervision. This antisocial orientation suggests increased risk for sexual
reoffending.

Self-Management: Within a structured prison setting, Mr. Jennings’s self-management skills have apparently
been adequate. However, in a less restrictive/community-based setting, the examinee has demonstrated poor
self-management skills that have been manifested in impulsive criminal offending and specific, repetitive
sexual offending. Poor self-management is also reflected in the inmate’s history of relationship instability and
limited employment. All of these factors suggest the potential for difficulty in controlling behavior, should
Mr. Jennings be released into a less restrictive/community-based setting.

Participation in Sex Offender Treatment: Mr. Jennings has never participated in sex offender treatment.
Furthermore, when faced with court-stipulated mental health treatment mandates in the past, Mr. Jennings
was noncompliant. While refusing to participate in sex offender treatment has not been identified as a specific
risk factor leading to sexual recidivism, Mr. Jennings’s refusals appear to be related to the inmate’s antisociality
and lifestyle instability. Those latter factors are associated with increased risk for sexual recidivism.

Substance Abuse: There is no indication of recent substance abuse/dependence in this case.

Social and Community Supports/Intimacy Deficits: Currently there appears to be a lack of any community
support for Mr. Jennings. As indicated above, Mr. Jennings stated that, due to conditional-release sanctions,
“I have to stay in Florida. No family, no friends, nowhere to go here.” There also appears to be a history of
intimacy deficits. Mr. Jennings reported that his relationship with his wife was intermittent as a result of
repetitive incarcerations, and Mr. Jennings engaged in sex offending and extramarital affairs while with his

799
wife.

Attitudes Tolerant of Sexual Assault: Mr. Jennings did not report any attitudes indicating tolerance of sexual
assault during the current examination. Rather, he admitted (although he minimized) his sexual offense
history and acknowledged the wrongfulness of such behavior. However, the history of repetitive sexual
offending, combined with antisocial and psychopathic features, suggests that there has been an underlying
tolerance concerning the enactment of inappropriate sexual behavior.

Community Supervision: Records reviewed indicate that, should Mr. Jennings be released into the
community, he will be on conditional-release sanctions through 11/26/2013 (i.e., for seven years). Mr.
Jennings indicated that his initial conditional release plan to return to Indiana and live with his sister was
denied “because my 9-year-old niece lives there.” Consequently, reported Mr. Jennings, he now plans to “stay
in Florida.” It is important to point out that in the past, community supervision has not been effective, since
Mr. Jennings committed a sex offense while on probation. After being incarcerated for that sex offense, and
while on parole, Mr. Jennings violated his parole by moving to Pinellas County from Indiana without
notifying authorities.

Release/Relapse Prevention Plans: As indicated above, should he be released into the community, Mr.
Jennings will be on conditional release and supervised by the DOC for seven years. According to his DOC
Classification Officer, Mr. Jennings will be subjected to standard sex offender treatment requirements as part
of his conditional release, which will include mandatory participation in sex offender treatment. However, as
indicated above, it is this examiner’s opinion that such conditions cannot be viewed as relevant protective
factors in this case, based on Mr. Jennings’s history.
During the exam, Mr. Jennings indicated that he does not want to reoffend or become reinvolved with the
criminal justice system. However, he did not cite any strategies to aid him in accomplishing these goals.

DIAGNOSES: Mr. Jennings qualifies for a Diagnostic and Statistical Manual of Mental Disorders, fourth
edition (DSM-IV) diagnosis of Paraphilia Not Otherwise Specified (NOS) (nonconsenting persons). The
inmate meets Criterion A of the Paraphilia diagnosis due to his history of behaviors that include forcing
nonconsenting partners to have sexual relations with him. Such behaviors have occurred over a period
exceeding six months in duration. Mr. Jennings meets Criterion B due to a history of arrests and incarceration
related to his sexual misbehavior.
Mr. Jennings also meets almost all of the criteria associated with the DSM-IV diagnosis of Antisocial
Personality Disorder. He has failed to conform to social norms with respect to lawful behaviors. He has
repetitively performed acts that are grounds for arrest. He has demonstrated impulsivity and failure to plan
ahead. He has a history of aggressiveness and has demonstrated a reckless disregard for the safety of others,
irresponsibility, and at least some lack of remorse (as indicated by his indifference to having hurt or mistreated
others). In order to diagnose an individual with Antisocial Personality Disorder, however, there must be some
indication of Conduct Disorder prior to age 15 years. Because there is no available evidence on this point, the
technically correct diagnosis is Personality Disorder NOS (with distinct antisocial features). As indicated
earlier in this report, psychopathic features have also been identified.

800
 The inmate reported that when he was younger, he abused alcohol to some degree. While this history
serves as a basis for the DSM-IV diagnosis of Alcohol Abuse, both the inmate’s reports and reviewed
documentation indicate that such abuse has been in remission for a lengthy period of time.

CONCLUSIONS: The sex offender statute requires an evaluation of whether the inmate has a mental
abnormality that predisposes him to commit acts of sexual violence.
With respect to the mental abnormality issue, this inmate can easily be diagnosed with Paraphilia NOS
and Personality Disorder NOS, and comes close to meeting all the criteria for Antisocial Personality Disorder.
Although Mr. Jennings does not meet criteria for “prototypical” psychopathy, distinct psychopathic features
were also identified during this examination.
Several aspects of Mr. Jennings’s behavior suggest that in his case, these conditions create a predisposition
to engage in sexual acts. Mr. Jennings’s rapid and repetitive sexual offense history indicates that he found
nonconsensual sexual interactions to be stimulating, exciting, and thus reinforcing. Note also that Mr.
Jennings’s Florida sex offenses occurred when the inmate was reportedly involved in an active sexual
relationship with his wife, which further suggests a strong urge to commit these offenses. Mr. Jennings’s
targeting of older female victims also demonstrates atypical sexual preferences. Added to these sex-offense-
specific features of Mr. Jennings’s conduct are a number of other risk-indicative factors. These include
intimacy deficits, employment instability, general criminal offending, and parole violations. Additionally, as
documented earlier in this report, Mr. Jennings appears to be vulnerable to emotional stress or “destabilizers.”
For sex offenders, such emotional destabilization can acutely increase the risk for sexual misbehavior.
The actuarial evidence confirms that Mr. Jennings is a high-risk individual. Mr. Jennings was convicted of
a sexually related offense in 1986. According to the examinee’s own timeline, he was in the community for
only two years after release on this conviction before engaging in three sexually violent offenses, all of which
occurred within a three-month period. Recidivism research for sex offenders suggests that only about 15%
reoffend within a five-year period after institutional release. Thus Mr. Jennings falls within an elite group of
sexual recidivists. Furthermore, Mr. Jennings’s total PCL-R (Second Edition) score of 26.3 is above 25—a
threshold that has been associated with particularly High Risk in connection with sexual recidivism.
Prospects for treatment are not good. First, psychopathic and antisocial behavioral patterns are unlikely to
remit spontaneously or “go away.” Second, although, as noted above, the decision not to participate in sex
offender treatment has not been associated with recidivism risk, Mr. Jennings’s failure to succeed with
remediation attempts (in both therapeutic and supervision/management realms) indicates that he is not likely
to comply with less restrictive rules. The inmate’s lack of insight or understanding concerning aspects of his
“sex offender issues” further supports this contention. Moreover, should he be released into the community,
Mr. Jennings lacks any real support system. Without such support, it is likely that emotional destabilization of
the type described above will ensue. Although Mr. Jennings would be subject to conditional-release
supervision, his supervisory history, in combination with the risk factors identified above, suggest that such a
program will not be effective in managing Mr. Jennings’s risk to the community.
In summary, Mr. Jennings has demonstrated serious difficulty in controlling his sexual behavior. Enduring
risk factors have been identified suggesting that he remains likely to engage in future acts of sexual violence.
The fact that he is 46 years old, however, may mitigate this likelihood, as age over 45 is negatively correlated

801
with risk.
I hope this information will be of service to the Department of Children and Families and to the Court in
terms of arriving in an ultimate disposition in this case. If I can provide you with further consultation or
clarification concerning any aspect of this examination report, please do not hesitate to contact me.
Edgar Bennett, Ph.D.
Licensed Psychologist

APPENDIX I—SOURCES OF INFORMATION: This evaluation is based on information obtained from

the following records provided by the Florida Department of Children and Families:

1. Sexually Violent Predator Program Clinical Summary

2. Sexually Violent Predator Program Initial Case Review Forms
3. Arrest History Forms
4. Florida Department of Corrections (DOC) Notice of Release Pursuant of Florida Statute 394.910–
394.930
5. Institutional Adjustment Form
6. Florida DOC Classification Report
7. Post-Sentence Investigation Report (07/18/94)
8. Pre-Sentence Investigation Report (11/22/93)
9. State Attorney’s Information Sheet (Case #: 93-134546)
10. Complaint Affidavit (Agency Report #: 9350006)
11. State Attorney’s Information Sheet (Case #: 93-43554)
12. Complaint Affidavit (Agency Report #: 930345)
13. State Attorney’s Information Sheet (Case #: 93-34536)
14. Complaint Affidavit (Agency Report #: 933245778)
15. State Attorney’s Information Sheet (Case #: 93-98653)
16. Booking Report (Agency Report #: 93216236)
17. State Attorney’s Information Sheet (Case #: 93-12783)
18. Complaint Affidavit (Agency Report #: 92103454)
19. Arrest Record Detail
20. Offender Management Comments
21. DOC Mental Health Records (Partial)
22. Sex Offender Screening and Selection Form (09/28/05)
23. Sex Offender Screening and Selection Form (05/12/02); DOC Medical Records (volume I of I
reviewed); Records from DOC Classification Records (volume I of I reviewed); Brief consultation with
Inmate’s DOC Classification Officer

(b) Discussion

Technically, an assessment of whether an individual meets the criteria for commitment under a state’s sexually
violent predator or sexual psychopath statute is not a sentencing evaluation. In the vast majority of such cases,

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the petition for this type of commitment is precipitated by the pending expiration of the criminal sentence,
not its pending imposition [see § 9.04(b)]. However, such assessments are not dissimilar to sentencing
evaluations in their focus on long-term risk. In fact, other than in capital cases, the assessment of risk in these
types of cases is the most consequential of any that a forensic examiner will perform, given the potential
impact of these proceedings on the individual as well as the public.
This report is well organized in a number of ways. First, the format used in the offense section permits an
easy comparison of the official version of the examinee’s offenses and the examinee’s version. The report also
provides good details about the examinee’s sexually related offenses, nonsexual offenses, treatment history, and
other historical information (e.g., his violation of probation), all of which are potentially relevant to the
question before the court.
Second, the report clearly separates the relevant information into specific categories. Of special note is the
author’s division of the material on recidivism into a description of the actuarial results and then an analysis of
specified risk factors. His concluding section explicitly addresses both the mental abnormality issue and the
recidivism issue, two of the three key components of this type of evaluation [see § 9.04(b)]. He deals less
explicitly with a third component that the courts have considered important, the degree of volitional
impairment (although he does include information on this point in several places).
Third, the report provides a detailed listing of information relied on in the assessment, which reminds the
evaluator of his sources should he have to testify, and which alerts the lawyers and the court to the
comprehensiveness of the evaluation. Although most reports in this chapter place the sources of information
at the beginning of the report, here the examiner has chosen to place them in an Appendix. In a case such as
this (and in sentencing assessments as well), the examiner will want to review as many potentially useful
sources as possible. A wide array of information is relevant to this type of assessment, including offense-
related information, treatment-related information, the examinee’s attitudes toward sexual offending, alcohol
and drug use, and research data. On this last score, the report could have included citations to the relevant
literature, which would help bolster the report’s credibility
Two other aspects of the report are worth noting. First, the examiner provides a detailed discussion of the
notification he provided the examinee before initiating the evaluation, which included the admonition that
participation in the examination was the examinee’s choice and that he had the right to consult with counsel.
Note, however, that in most states a refusal to cooperate in such an evaluation can have legal repercussions
[see § 4.02(d)]. Second, when discussing recidivism, the examiner is careful to place the examinee within a
larger population, and avoids “predicting” that this particular individual will necessarily recidivate. In this area,
too often examiners minimize the probabilistic nature of their conclusions, and too often courts are led to
believe (or end up believing) that risk assessment instruments can definitively predict whether the individual
in question will offend again. At the same time, the evaluator states several times, on the basis of scores from
the Static-99 and the PCL-R, that the examinee is classifiable as “high risk,” without specifying the
probability range or the population on which the instruments were validated. Yet the latter type of
information could be very important to the factfinder. The limitations of such instruments could also have
been acknowledged [see § 9.09(c)].
The examiner is even less careful in dealing with the psychopathy issue. Note that the report states that the
examinee has “distinct psychopathic features,” even though he does not meet the official cutoff score on the

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PCL-R. The danger of this kind of statement is that it might persuade a judge that the examinee is in fact
psychopathic, regardless of the score on the PCL-R; reported court cases provide evidence that this dynamic
occurs with some frequency. Given the stakes, it is especially important that the examiner be very careful in
making statements regarding diagnosis, risk, and the basis for conclusions on those issues.
A final criticism of this report is that it is relatively heavy with jargon. The author fails to explain many
technical terms, such as “distractibility,” “emotional destabilizers,” and “intimacy deficits.” These phrases
could have been avoided or explained better. The author also seems to assume that the reader is very familiar
with how DSM works, which of course will not always be the case.

(c) Lester Thomas Report

DEFENDANT: Lester Thomas

D.O.B.: October 14, 1973
DATE OF REPORT: January 15, 2015

REFERRAL: Lester Thomas is a 42-year-old single white male referred for an evaluation by his attorney,
Jim Scott. Mr. Thomas is currently charged with two counts of misdemeanor stalking. This writer was
directed to assess the examinee’s mental state at the time of the alleged offenses, as well as his future risk for
violent behavior.

NOTIFICATION: Prior to the evaluation, Mr. Thomas was advised of the purpose of the evaluation, this
examiner’s status as a confidential expert for his attorney, the probable evaluation procedures, and the
potential uses of the evaluation at subsequent stages of his case. Mr. Thomas indicated that he understood the
notification, and he agreed to participate in the evaluation.

EVALUATION PROCEDURES: The following records were reviewed during the evaluation:

A. Criminal justice records/documents reviewed:

1. Criminal Report Affidavit dated June 1, 2014, completed in conjunction with present charge of
stalking.
2. Walker County Sheriff’s Office Incident Report (Case No. 96-000331) dated June 1, 2014, related to
charge of stalking.
3. Walker County Sheriff’s Office Incident Report (Case No. 96-078891) dated June 6, 2014, related to
charge of stalking, and supplemental investigation report dated June 6, 2014.
4. Walker County Sheriff’s Office Incident Reports dated 2010–2011 related to prior charges involving
harassing phone calls, trespassing, and trespass after warning.
5. Pretrial forensic evaluation reports for the current case prepared by Dr. Boris Cutler (November 18,
2014), Dr. Ervin Johns (November 21, 2014), and Dr. Fred Cox (December 15, 2014).
B. Records of psychiatric treatment reviewed:
1. Mountain View Community Mental Health Center (selected records from 2004–2006, including
termination note).
2. Premium Health Care, Inc., various records, 2005, 2008, 2009–2012, and 2014.

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 3. Missouri Mental Health Institute, various records, 2009–2010.
4. Walker County Jail, Tyson Road, medical record 2014.
C. Third-party interviews
1. Defendant’s brother, James Thomas (January 9, 2015, by phone).
2. Hans Rabel, Discharge Coordinator, Premium Mental Health Care, Inc. (regarding community
placement options).
3. Adam Nester, Case Management Supervisor, Mountain View Health Centers (regarding community
placement options).
D. Clinical procedures
1. December 30, 2014 interview of Mr. Thomas at the Tyson Road Jail (2:10), including administration
of the Psychopathy Checklist—Revised (PCL-R).
2. January 7, 2015 interview of Mr. Thomas at the Tyson Road Jail (3:00), including administration of
Structured Interview of Reported Symptoms (SIRS).

PERTINENT HISTORY: The history summarized here represents a synthesis of self-report information
from Mr. Thomas, information gleaned from prior medical records, and information obtained from an
interview with the defendant’s brother.
Mr. Thomas is a 42-year-old white male, born and raised in St. Louis, Missouri, by his natural parents.
His history is relatively benign until approximately age 27. He attended school in St. Louis, where he reported
making “average and above” grades. Neither the defendant nor his brother reports any significant history of
delinquency or acting-out behavior when Mr. Thomas was a child or during adolescence. Mr. Thomas
attended college at the University of Kansas from (approximately) 1989 to 1991, was out of school for two
years, then continued his education at the University of Arkansas (1993–1998), where he graduated with a
degree in biology. He reported studying theater for approximately two years. During his college years he
experimented briefly with drugs, having tried heroin (perhaps two or three times), cocaine (six or seven times),
and marijuana. He denies having used illicit drugs in the past 15–20 years.
Despite his intelligence and academic accomplishment, Mr. Thomas’s work history and social history
suggest marginal achievements during his adult life. He has held jobs as a painter, plumber’s apprentice,
private security guard, and pizza delivery man. He has never been married and apparently has had only one
serious relationship. It is clear that his adjustment has been variable, depending on his fluctuating psychiatric
condition.
His first psychiatric “break” occurred in approximately 1998, when he reported being seen at the University
of Arkansas Counseling Center and then at Walker County Hospital and Premium Health Care, Inc. Mr.
Thomas reported that he was diagnosed as suffering from schizophrenia and was treated with major
tranquilizing medications (Prolixin); symptoms he recalled included bizarre and unrealistic beliefs (delusions)
that “hit men from the Mafia were out to get me.” He received transitional services and aftercare, but his
compliance with treatment was variable, and at one point he discontinued treatment against medical advice.
A second major psychotic episode occurred around 2004. Records suggest that he became unrealistically
preoccupied with a female acquaintance and contacted local authorities, reporting his (delusional) belief that
she had been kidnapped by his neighbors. Because of his bizarre behavior, he was committed involuntarily for

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treatment to the Mountain View Community Mental Health Center. He was diagnosed as suffering from
schizophrenia, paranoid type, and was treated with psychotropic medications. He received outpatient follow-
up care until his termination from the Mountain View caseload on July 7, 2006. During aftercare his
medication (Navane) was gradually lowered, then discontinued, and he remained psychiatrically stable until
termination. In contrast to his prior treatment experience, Mr. Thomas was described as “quite dependable
about keeping his appointments. . . . Made progress on all goals.”
In 2009 Mr. Thomas came to the attention of the criminal justice system for charges of harassing phone
calls and trespassing. He again developed a preoccupation with a woman who, records suggest, was no more
than a casual or social acquaintance from his church. He came to hold the (inaccurate and delusional) belief
that she was interested in developing a relationship with him. He also reported attempting to communicate
with her by “sending mind waves.” These problems led to recommitment to Premium Health Care, transfer to
the Missouri Mental Health Institute, and subsequent follow-up outpatient care with Premium Health Care.
As before, his psychotropic medication was discontinued by the psychiatrist during follow-up treatment (May
26, 2012), and he remained psychiatrically stable until termination in September 2012.
In September 2014, Mr. Thomas was readmitted to Premium Health Care on a voluntary basis as his
current legal difficulties came to a head. Records note his “pathological obsession with a woman [a different
one from the two previous occasions] prior to coming in.” During this brief admission Mr. Thomas was
compliant with treatment, and notes indicate: “Client has been treated before for this illness. . . . Client
benefited from outpatient counseling and would benefit again. . . . Client responds to medication.”

CURRENT CLINICAL PRESENTATION: Mr. Thomas was interviewed on two occasions at the Tyson
Road Jail. Dressed in standard jail clothing, he appeared to be mildly anxious and somewhat self-conscious
during the first interview, but attentive and cooperative. According to jail medical records, Mr. Thomas was
receiving an antipsychotic medication (Geodon) for “delusional disorder” at the time of this evaluation. The
sedating effects of this medication may have contributed to the lack of animation and emotion in Mr.
Thomas’s presentation. Although he was cooperative and responsive throughout two lengthy interviews, his
emotional expression was judged to be somewhat flat or muted. His memory was intact, and he neither
reported nor presented with obvious symptoms of mental disorder throughout much of the interview. He was
able to remain on topic, to elaborate his responses to questions, and to provide a detailed history that appears
reasonably reliable in light of available records and other third-party information.
The SIRS is a psychological inventory used to assess exaggeration/fabrication of psychotic-spectrum
symptoms. The examinee’s responses to this structured interview did not indicate that he was motivated to
exaggerate and/or fabricate symptoms of severe and persistent mental disorder. If anything, his responses
suggested a tendency to understate such symptoms.
Despite his overall benign presentation during clinical interview and on formal testing, serious
psychopathology was clearly evident in his remarks concerning his history with and perceptions about the
complainant in his current stalking cases. Mr. Thomas described chronologically and in considerable detail his
feelings toward and perceptions regarding the complainant. It is clear from Mr. Thomas’s account that during
the lengthy period of time when his behavior gave rise to concerns of stalking, he was suffering from bizarre
and unrealistic beliefs (delusions), as well as perceptional distortions (hallucinations). For example, he

806
described numerous occasions when he was able to “hear her [the victim] speaking to me” when he was not
physically close enough for this to have realistically occurred. He also asserted that the victim “led me on” by a
sophisticated and intricate set of “coded” behaviors that, per Mr. Thomas’s (delusional) interpretations, gave
him signals as to when and where he might expect to meet with her.
Although he is presently forced by the salience of his legal difficulties to consider that his previous
experiences and encounters with the complainant may have been colored by his symptoms, Mr. Thomas
insists that he experienced the events as described above. The array of delusional thinking, perceptual
distortions, and idiosyncratic interpretations of events—all in support of his heightened focus on a casual
female acquaintance—are reminiscent of at least two of his prior psychotic episodes. Thus a current diagnosis
of schizophrenia appears appropriate.

EVALUATION OF MENTAL STATE AT THE TIME OF THE OFFENSE: Mr. Thomas admits that
“objectively” he never had a formal, serious relationship with the victim, that they never really “dated,” and
that there were few if any occasions in which they were actually in close enough physical proximity with one
another that they could communicate. Nevertheless, he asserts that she “led me on” by communicating with
him over considerable distances, although his description of specific instances of such communications defy
credibility and, in this examiner’s opinion, give evidence of how his stalking behavior was driven by
misperceptions and hallucinations that are part and parcel of his illness. For example, the examinee asserted
that while he observed the complainant dance on one occasion at the St. Louis Performing Arts Center, she
singled him out from a crowd of between 200 and 300 people to tell him, from the stage, that she wanted to
“go to bed with me.” This refueled his interest in a relationship with her and increased the attention he gave
to her at her work setting. Although no actual face-to-face conversations occurred, Mr. Thomas asserted that
he “heard” her make aside comments as she worked on her job at Taco Bell, to the effect that “in the end, it
will all work out. We’ll get married and move to Chicago.” After being instructed not to return to her place of
work, Mr. Thomas monitored the victim from across a busy boulevard and asserted that she set up a series of
special codes (e.g., focusing her eyes in one direction and shaking her head) as she walked into work in order
to tell him whether or not “I’ll see you after work tonight.” Similar “messages” were “received” from afar by the
examinee from patrons who entered and exited her place of work.
These claims by the defendant appear incredible on their face and, in light of the complaints filed, almost
certainly false. Yet they are not unlike prior symptoms experienced by the defendant, also during times of
intense and inappropriate focus on developing romantic relationships with women who had not expressed any
genuine interest in him. Mr. Thomas had not been taking psychotropic medications for a significant period of
time (since May 26, 2012) when his preoccupation with the complainant developed and flourished. In this
examiner’s opinion, Mr. Thomas’s actions toward the complainant are reasonably attributed to the difficulty
he experienced in accurately perceiving the reality of his (non)relationship with her. Hallucinated voices and
idiosyncratic interpretations of ordinary, meaningless, and innocuous events (e.g., a change in posture or
shaking of her hair) formed the “encouragement” that fueled his attention to and monitoring of the
complainant. Mr. Thomas, during this period of heightened psychotic symptoms, would have had difficulty in
correctly determining that his attentions were unwanted and inappropriate.
Thus it is the opinion of this examiner that, at and around the time of the offenses, Mr. Thomas’s

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appreciation of the meaning and significance of the behavior he directed toward the victims was significantly
affected by symptoms associated with a mental disorder (including hallucinations and delusions). More
specifically, it is offered that these symptoms affected the examinee’s understanding and appreciation of the
“wrongfulness” of his actions that form the basis for the stalking charges. Of course, whether the examinee’s
behavior rose to a level that he should be considered “insane” at the time of the offenses is ultimately a legal
issue that is to be decided by the legal decisionmaker.

RISK ASSESSMENT: If Mr. Thomas is convicted on the current charges or is adjudicated not guilty by
reason of insanity, consideration as to appropriate placement and disposition will have to weigh the potential
risk for violence that he poses to the community. Whether a person will behave aggressively is a function of a
variety of factors that include history, personal disposition, environmental factors, and situational variables
(e.g., provocation) that cannot all be identified in advance. However, it is possible to consider the available
historical data and the anticipated placement/situational factors to estimate relative risk. This is the basis for
the current risk assessment.
Among historical factors most strongly correlated with aggression or violence recidivism, a history of
serious aggressive behavior during adolescence, particularly with early onset (below age 12) is a primary
concern. There is no such history in the case of Mr. Thomas.
A second historical factor that is related to risk is psychiatric diagnosis. In terms of
psychological/psychiatric factors, one of the best clinical instruments for the assessment of risk is the PCL-R,
because the interpersonal style assessed by this measure (psychopathy) is associated with increased risk for
violent behavior directed toward others. Clinical ratings on the 20 items of the PCL-R yield a score ranging
from 0 to 40, with a score of 30 or above indicative of a psychopathic interpersonal style characterized by
impulsivity, behavioral excess, a manipulative interpersonal style, and callousness. Mr. Thomas’s PCL-R score
of 5 is well below the range conventionally associated with a psychopathic interpersonal style and increased
risk for violent and nonviolent criminal behavior.
Research does suggest that persons who suffer from schizophrenia, such as Mr. Thomas, represent some
level of increased risk. However, two caveats about this research are in order. First, although persons with
schizophrenia are at increased risk relative to persons with no diagnosis, their risk level is relatively low
compared to persons with some other diagnoses (e.g., substance use disorders). Second, among persons who
suffer from schizophrenia, those who are at greater risk usually show one or both of the following symptoms:
persecutory delusions (unrealistic beliefs that others are trying to harm them) or perceptions that others are
controlling their thoughts (e.g., inserting or removing their thoughts). Importantly, Mr. Thomas displays
neither of these symptoms and thus, among persons with schizophrenia, should be considered at relatively
lower risk.
A third important historical factor is adult history of violent behavior. Although no “bright-line” indicators
exist, the literature suggests that a history of fewer than three felony arrests involving crimes against person is
a favorable prognostic sign; Mr. Thomas has zero prior felony arrests, according to information made available
to me.
A fourth consideration is the individual’s current thoughts, feelings, and attitudes toward others, including
any fantasies involving possible interactions with others. In interviews with this examiner, Mr. Thomas denied

808
any prior or current intentions or fantasies of harming others. He denied any history of owning/using firearms
or other weapons, and no angry/aggressive feelings other than “frustration” that his desired relationships with
women did not eventuate. He said that his intentions and fantasies have always been benign/amorous; this is
corroborated by reports from the defendant’s brother, who has discussed these matters with Mr. Thomas on
occasion.
A fifth consideration is the availability of support and supervision to ensure that behaviors of concern (e.g.,
taking medication and avoiding further “stalking”) can be monitored. As noted previously, Mr. Thomas has a
history of compliance with and success in outpatient psychiatric treatment. A number of community-based
placements may be available, ranging from living at home with day care activities and medication monitoring
to residential or supervised living situations (group homes, apartments, adult congregate living facilities) that
have overlaid mental health and case management services. In light of Mr. Thomas’s excellent recent history
of compliance with and success in outpatient care, these options should be explored, should the court be
willing to consider supervised probation as a disposition. I have spoken with Mr. Adam Nester, Case
Management Supervisor at Mountain View Mental Health Center, who would be able to arrange for a
screening evaluation of Mr. Thomas, should the court determine that to be appropriate. Mountain View is
capable of providing virtually the full range of options noted here.
Although Mr. Thomas should be considered, on the analyses provided here, to present a relatively low risk
for violent or aggressive behavior in the community, the recurrent pattern of his symptoms suggests that
without medication and periodic outpatient follow-up, he should be considered at relatively high risk for the
recurrence of hallucinations and misinterpretations of the behavior of others—most likely in the context of a
sought-after relationship with a woman who becomes the focus of his attention. Thus suppression and
deterrence of the kinds of behavior that led to his current charges may be dependent on the reliability of
external controls (medication, counseling); although Mr. Thomas has attained sufficient remission following
two prior treatment episodes that his doctors have voluntarily discontinued his treatment, the longer view of
his history suggests that this discontinuation should not happen again.
Jefferson Dodge, Ph.D.

(d) Discussion

This report addresses both MSO and sentencing factors. Although this combination would be unusual for a
court-ordered evaluation, the results of which go to all the parties, note that here the referring party is the
defendant’s attorney, which means that the report will be protected by the attorney–client privilege [see §
4.02(b) & (c)]. It will often make sense for the defense attorney to obtain an “exploratory” evaluation of both
MSO and sentencing issues, the latter in case an insanity defense or a related defense does not pan out.
Furthermore, the more wide-ranging scope of a sentencing evaluation can be useful for plea-bargaining
purposes.
With respect to sentencing issues, this report provides a good example of risk assessment—one that
considers both risk factors and protective factors. Note the reference to the various empirically validated
predictors (the actuarial approach), as well as the close analysis of Mr. Thomas’s behavior and mental state
during past stalking episodes (the anamnestic approach). On the latter score, the MSO part of the report is

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helpful, demonstrating that risk and MSO considerations are sometimes closely related. Additionally, as §
9.03 indicated, culpability assessments can be very relevant in certain sentencing regimes, so that even if the
defendant is not found insane, this kind of information can be useful at disposition [see also § 9.08].
Two other aspects of the report are of particular interest. First is its use of well-validated assessment
instruments: the SIRS, which has been shown to be a useful way of detecting malingering [see § 3.06(b)], and
the PCL-R [see § 9.09(c)(5)]. Second, note that the evaluator follows the recommendation in § 9.09(c)(4)
that treatment recommendations should follow the “if–then” format. He makes his observations about
outpatient services only after noting that they are relevant solely if probation is a consideration (and, in doing
so, stresses the importance of creating supports that may enable the examinee to maintain adequate
functioning in the community).

19.06. CIVIL COMMITMENT [CHAPTER 10]

(a) Jacob Marlar Report

Judge Jane Doe

County Court House

Dear Judge Doe:

This letter reports my evaluation of Mr. Jacob Marlar (Case No. 1234) under the state commitment law.
That law authorizes involuntary commitment if the individual (1) is mentally ill, defined as “a substantial
disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life”; and (2) the mental illness causes the person to be “likely to
inflict serious bodily harm on self or others within the near future, or causes the person to be unable to survive
safely in freedom with the help of friends or others.”
Mr. Marlar is a 37-year-old single male. He was arrested yesterday, March 2, 2015, on charges of
trespassing upon property other than a structure, and was brought here to the Receiving Unit, where I
immediately evaluated him. My evaluation consisted of a 1.5-hour interview of Mr. Marlar, a brief
conversation with the detaining officer, review of his police and psychiatric records (received by fax), and
administration of the HCR-20 (an assessment tool that is used to structure assessments of risk).

Information from Interview and Records: When I interviewed him, Mr. Marlar was dirty and disheveled. He
apparently had been living on the streets for some time. According to the police, he was arrested while sitting
on a bench in front of a restaurant. When asked to leave by the owners of the restaurant, he refused, stating
that he had a right to sit and sleep on the bench. The police were called, and he was arrested.
Mr. Marlar denies having hallucinations and has refused all medication (although, given his emergency
status, the hospital staff has medicated him with Risperdal). This medication had had little effect at the time I
interviewed him. During the interview, he asked that the TV be turned down when in fact no TV was on. He
claims to be a prophet and a savior. Although he says his parents knew he was an important religious figure
from the time of his birth, he also claims that they paid his landlord to have him evicted and are setting him
up to be killed by federal agents in response to his political and religious writings. He also reports that he is

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named in the “real” Bible, which is found in the basement of Buckingham Palace. He claims that the current
Bible is a fake, orchestrated by the Jews, who were originally aliens from another planet. He also feels that the
police officer who arrested him was not a real officer. He claims to have extraordinary healing powers. He
carries a “pendulum,” which he uses to heal himself and others of diseases that include exposure to Agent
Orange, AIDS, and broken vertebrae.
He has one prior month-long admission to a psychiatric facility, in December 2014. There he was
diagnosed as suffering from schizophrenia, paranoid type. Apparently, the admission was voluntary on his
part. He also has a history of drug and alcohol abuse dating back to his teenage years. He was arrested for
possession of marijuana in 2002 and arrested for driving under the influence (DUI) in 2004.

Mental Illness: I confirm Mr. Marlar’s diagnosis as schizophrenia, accompanied by a history of alcohol abuse.
Mr. Marlar’s schizophrenia substantially impairs his ability to perceive reality (see my description above
regarding his paranoid and grandiose delusions) and limits his insight into the nature and extent of his mental
disorder and how it affects his day-to-day functioning. Largely because of this lack of insight, he has refused
all treatments that have been recommended during the course of this current hospitalization. Moreover,
treatment that has been administered over his objections (i.e., sedating, antipsychotic medication) has met
with little success in controlling the examinee’s level of symptomatology.

Danger to Others: An investigation structured by the HCR-20 suggests that there are some violence risk
factors in this case. They include stress associated with unstable interpersonal relationships, a lack of housing,
and financial problems; a history of substance abuse; the presence of paranoid delusions (potentially leading
the examinee to think that he is at risk of harm by others); a lack of insight into his psychiatric disorder and
associated treatment refusal/denial; and unresponsivity to attempted treatments. Several other factors reduce
the risk of harm. Most important, with the exception of his struggle with police during the current arrest
(during which he apparently swung at an officer), Mr. Marlar has no history of violence, and his only other
criminal offenses are a DUI and possession of drugs. Furthermore, he does not have immediate access to a
vehicle or lethal weapons, has not recently abused drugs or alcohol, and expresses no violent intentions; in
particular, he states that he would not harm his parents, despite their efforts to have him evicted and killed,
because he is a “healer,” not a “killer.” In any event, Mr. Marlar’s parents live in another state.
It should be noted that Mr. Marlar insists that if released, he will return to the bench where he was found,
because he says it is public property. Mr. Marlar also may be a “nuisance” to those around him, in that he
appears quite willing to walk alongside people and tell them about his healing prowess.

Danger to Self: Several risk factors for suicide and self-injurious behavior are present, including the presence
of a severe and persistent mental disorder (i.e., schizophrenia); presence of a history of substance abuse (albeit
with no recent use); and numerous social stressors (i.e., financial problems, lack of adequate housing, poor
social support). Most notable, however, is the absence of some of the most salient risk factors for self-injurious
behavior, including a history of such attempts, current thoughts of self-harm, or the presence of depression
and associated symptoms.

Ability to Survive: As stated above, Mr. Marlar was dirty and disheveled when I talked to him. His clothing

811
was smelly, and he was very thin. He claimed that he was able to get food from handouts and from the
homeless shelter, and that he lived in a box under the Massif Bridge. According to his records, he was at one
time a landscaper. However, in his current condition, it is unlikely he could obtain employment in that
capacity (or in any other), and his ability to consistently meet basic needs (such as food, clothing, and shelter)
will fluctuate significantly as a function of the specific environment in which he finds himself and the level of
his symptomatology (which will probably continue to go untreated if he returns to the community).

Competence to Make Treatment Decisions: If Mr. Marlar is committed for care and treatment, he will
probably continue to refuse medication. Under state law, such a refusal must be honored in nonemergency
situations if he is found competent to make a treatment decision by the court. Mr. Marlar understands the
diagnosis of schizophrenia, the intended effects of recommended treatment in this case (i.e., antipsychotic
medication), and the possible side effects of that medication. However, because he lacks insight into the fact
that he is experiencing symptoms of schizophrenia, he denies that medication could eliminate these symptoms
in him. He says that he does not feel sick, and that “mental illness” and “schizophrenia” are labels doctors use
to oppress people. He also does not like the side effects of his current medication. He adamantly states that he
does not want the medication and wants to return to the streets. If he becomes sick, he says, he can heal
himself, using the pendulum.

Conclusion: It is the opinion of this evaluator that if he is released without treatment, Mr. Marlar’s condition
will continue to deteriorate. However, he will probably be able to survive the way he has in the past, especially
if Social Services staff members check on his “box” and ensure that he receives food from the homeless shelter;
he may also be eligible for Supplemental Security Income (SSI) or Social Security Disability Insurance
(SSDI). These might be “less restrictive alternatives” to hospitalization. However, his delusional system will
probably again lead to a confrontation with others of the type that precipitated this admission; furthermore,
his physical condition will deteriorate along with his mental condition. At the present time, he has the
cognitive ability to understand the risks and benefits of treatment, but clearly does not appreciate his own
condition.
Martha Questin, M.D.

(b) Discussion

Typically, no written report is prepared in civil commitment cases. When the evaluation is conducted at the
front end of this process (as in this case), there may be no time to do so, because in many jurisdictions judicial
review takes place within 48 hours of admission [see § 10.04(a)(1)]. For the same reason, the evaluator seldom
has access to the type and amount of information available in criminal cases and most other civil cases, as this
report illustrates. Thus this report represents an idealized version of what a report or testimony in a civil
commitment case might look like.
Note that the evaluator addresses each statutory question. Only the first issue (mental illness) is addressed
with any confidence, however. Whether Mr. Marlar is dangerous to self or others, and whether he is unable to
survive, are difficult legal questions that require balancing liberty interests against the interests of society under
the police power and parens patriae power. Relevant to this question are the degree and probability of the risk

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and its imminence [see § 10.03(c)]. The evaluator provides information on these various issues without
performing the ultimate calculus. Note also that given Mr. Marlar’s refusal of medication, the evaluator
addresses the competence issue, but leaves it up to the judge to decide whether a lack of “appreciation” of one’s
illness constitutes incompetence [see § 11.03(a)(2)].
Finally, note that the evaluator addresses least-restrictive-alternative issues [see § 10.03(g)], although
somewhat tentatively. Ideally, the evaluator would have a firmer grasp of institutional and noninstitutional
community options and could provide a fuller description of them to the judge. Of course, if Mr. Marlar were
entitled to an independent expert (as is the case in a few jurisdictions [see § 10.04(a)(2)]), this information
could come from that source.

19.07. COMPETENCE TO HANDLE FINANCES [CHAPTER 11]

(a) Dorothy Dyer Report*

NAME: Dorothy Dyer

D.O.B.: September 3, 1962
DATE OF REPORT: September 4, 1994

CIRCUMSTANCES OF REFERRAL: Dorothy Dyer, a 32-year-old white female, was referred to the Elk
County Clinic for evaluation by her attorney, Sally Hudson of the Elk County Legal Aid Society. On March
9, 1984, Ms. Dyer was found incapable of handling business matters due to “retarded physical and mental
condition, as a result of congenital deficiency.” Richard Perkins, an attorney from Athens, Arizona, who had
handled her family’s legal affairs, was appointed as her guardian at that time. At the present time, Ms. Dyer
would like to have the guardianship dissolved, because she believes she is able to handle her own financial
affairs. As a result, she has procured the counsel of Ms. Hudson in the hope of restoring her competence to
conduct her affairs. Ms. Hudson has requested the clinic to assess Ms. Dyer’s present competence as it
pertains to the management of her financial affairs.

SOURCES OF INFORMATION: In conducting its evaluation, the clinic had available to it information
from the following sources:

1. Court order appointing Guardian from the Corporation Court of the City of Athens, Arizona, dated
March 9, 1984.
2. Medical records from the Elk County General Hospital regarding Ms. Dyer’s treatment immediately
after birth, dated September 4, 1962, through September 20, 1962.
3. Medical records from the Neuropsychiatry Department at the Elk County General Hospital regarding
outpatient speech and play therapy with Ms. Dyer dated December 1, 1968, through June 1, 1969.
4. Medical records from the Neurology Clinic at the Elk County General Hospital regarding an evaluation
of Ms. Dyer, dated April 10, 1978.
5. A report of psychological testing of Ms. Dyer, performed at age 12, from the file of the Social Security
District Office, Athens.
6. A telephone interview with Mr. Perkins, the Guardian, by Janet Higham, Ph.D., conducted on August

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 30, 1994.
7. A telephone interview with Sarah Smith, Ms. Dyer’s supervisor at the Frost Diner, by Lisa Madding,
D.S.W., conducted on August 27, 1994.
8. A telephone interview with Jean Smart, the babysitter for Ms. Dyer’s two-year-old son, by Lisa
Madding, D.S.W., conducted on August 27, 1994.
9. A telephone interview with Farah James, a Health Department nurse who has treated Ms. Dyer’s son, by
Lisa Madding, D.S.W., conducted on August 27, 1994.
10. A psychosocial interview by Lisa Madding, D.S.W., with Ms. Dyer, conducted on August 30, 1994.
11. A psychosocial interview by Lisa Madding, D.S.W., with Mr. John Daniels, Ms. Dyer’s boyfriend (and
father of her child), conducted on August 30, 1994.
12. Psychological testing of Ms. Dyer by Marci Levin, M.S., a clinical psychology resident supervised by
Janet Higham, Ph.D., conducted on August 30, 1994.
13. A competence assessment interview of Ms. Dyer by Janet Higham, Ph.D., conducted on August 30,
1994.

PERSONAL/FAMILY BACKGROUND: Ms. Dyer was born on September 3, 1962, and has lived all her
life in Athens, Arizona. According to Ms. Dyer, she was the youngest of the six children born to the Dyer
family. She reported that her father supported the family by working in a garage, while her mother
supplemented the family income by doing laundry. She stated that her father died in 1982 and her mother in
1985, and that her grandparents also died around this time—“They all went one after another.” Ms. Dyer
indicated that she does not get along well with her three brothers and two sisters (the oldest of whom is 53
years of age) because of their chronic use of alcohol. Related to this point, she noted that the guardianship was
initially established because her mother was afraid that Ms. Dyer’s sister would “use up all my money
drinking.”
Ms. Dyer explained that she attended school in Athens through the fourth grade. She remarked that she
“liked it one time,” but quit because “I couldn’t talk.” (In this respect, she referred to a pronounced speech
impediment from which she suffers.) She reported that she had been living with her parents, and moved in to
live with a sister after her mother’s death. In 1989, she moved out of her sister’s home and established her own
residence. She described the move as “hard at first,” stating that “at first I was lonely, but then I enjoyed
myself.” She remarked that she wanted her own place “because all my friends got one.” This seemed very
important to her.
Ms. Dyer stated that she met her first and current boyfriend, John Daniels, in late 1990 at her aunt’s home.
Mr. Daniels reported in this regard: “We watched each other for a couple of weeks and then decided to go
out.” The couple began dating steadily at this point; in December 1991, one year later, Ms. Dyer gave birth to
a male child, whom she named Larry. Following the birth of the child, she and John began living together and
have resided together since that time. The relationship has lasted four years, and they both speak of it in
positive terms. Ms. Dyer reported that she loves John and hopes to marry him some day, but also indicated
that she’s “not quite ready yet.” Mr. Daniels described Ms. Dyer as a “good and understanding person.” He
explained that they “just took to each other.” During the last year, Mr. Daniels was in Nevada for 12 months
between April 1992 and April 1993. According to Ms. Dyer, he sent her about $250 during that time and

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called on a regular basis. He explained that he was involved in a one-year training program to become a
mechanic, but indicated that he had to withdraw from the program when Ms. Dyer asked him to come home.
Larry, their son, is presently two and a half years old. Ms. Dyer and Mr. Daniels spoke of him with
apparent affection, and both agreed that “he’s real smart for a two-year-old.” Ms. Dyer explained that he
“loves McDonald’s” and reported that he even “jogs” with the two of them. She stated that she hopes to have
one more child, but commented, “I’m going to wait until Larry’s a little older. Then I’m going to stop—two’s
enough.” Farah James, a public health nurse, reported that Ms. Dyer is very regular with her appointments at
the Care-Baby Clinic and apparently devotes considerable energy to being a good mother. She stated that
Larry is developing normally and suffers from no observable impediments.
Ms. Dyer stated that she works as a dishwasher at the Frost Diner in Athens. She added that she “likes my
job,” where she has been working for ten years. She stated that she works from 7:30 A.M. to 2:30 P.M. daily
during the winters and is free to spend the summers at home with her son.
Her supervisor, Sarah Smith, reported that Ms. Dyer is very responsible in her work and gets along well
with the other employees. She stated that she follows instructions well and never misses work unless she is
taking her son to an appointment.

DETERMINATION OF INCOMPETENCE: On March 9, 1984, Ms. Dyer was deemed incompetent in

the Corporation Court of the City of Athens. Donald Siegle, the guardian ad litem, reported that as a result of
“some congenital deficiency,” Ms. Dyer is a “person of retarded physical and mental condition.” Thus Ms.
Dyer was considered “incapable of handling business affairs.” The court order provided no further elaboration
regarding the reasons for the ruling of incompetence. At that time, Richard Perkins (an attorney for the Dyer
family prior to the death of Ms. Dyer’s mother) was appointed guardian of the estate.

BEHAVIORAL OBSERVATIONS: Ms. Dyer was neatly and casually dressed for her sessions at the Elk
County Clinic. She made good eye contact and was cooperative throughout the sessions. She seemed well
aware of the nature and purpose of the evaluation, and clearly understood the clinic’s role in providing her
attorney with information about her need (or lack thereof), for a guardian. She responded to questions
directly.
Ms. Dyer has a severe speech impediment, which made it difficult to understand her speech most of the
time. She patiently repeated responses to items until she was certain she was understood. She was aware of
this deficit and was able to discuss her impairment openly and nondefensively. Similarly, Ms. Dyer worked
patiently and conscientiously on difficult test items. Although she was aware that she was unable to respond
correctly to many items, she continued patiently and methodically to attempt new items.
Ms. Dyer also appeared to have some gait disturbance; however, she was able to walk without assistance.
She reported poor fine motor coordination. Her fingers appeared stiff.
In general, Ms. Dyer appeared friendly and motivated to perform well on tasks. In spite of speech, motor,
and intellectual deficits, she was able to relate in an effective way to others.

ASSESSMENT OF INTELLECTUAL FUNCTIONING: In 1974, Ms. Dyer was administered Form 1

of the revised Stanford–Binet Intelligence Scale by a Dr. D.T. Fletcher. At that time, she was 12 years of age
and in the fourth grade. Ms. Dyer’s mental age was calculated as five years, eight months, giving her an IQ of

815
47. Dr. Fletcher suggested that she be referred to a class for trainable mentally retarded children.
On August 30, 1994, at the Elk County Clinic, Ms. Dyer was administered the Wechsler Adult
Intelligence Scale—Revised (WAIS-R) to identify specific strengths and deficits that characterize her present
intellectual and neuropsychological functioning. Neuropsychological assessment involves the evaluation of the
behavioral expression of brain dysfunction.
Ms. Dyer is currently functioning in the upper end of the mild mental retardation range of intellectual
functioning. Her scores on the Verbal and Performance scales of the WAIS-R did not differ significantly
from one another. The Verbal scale includes subtests that focus primarily on skills related to fund of general
information, vocabulary, abstract reasoning, social judgment, auditory memory, concentration, attention, and
mathematical skills. The Performance scale subtests measure perceptual–motor integration and motor
coordination, ability to perceive visual details, ability to solve visual and spatial problems, and sense of the
appropriate sequences of social interactions.
Relative to her overall functioning, Ms. Dyer evidenced particular strength in her social judgment skill (the
ability to use facts in a pertinent, meaningful, and emotionally relevant manner). Ms. Dyer also performed
relatively well on the Block Design subtest. This subtest assesses visual organization skills of analysis (breaking
down a pattern) and synthesis (building the pattern up again with blocks). She performed relatively poorly on
a subtest (i.e., the Object Assembly subtest) measuring perceptual organization skills. The subtest requires a
person to arrange parts into a meaningful whole.

ASSESSMENT OF ADAPTIVE FUNCTIONING: Ms. Dyer was administered subscales of the

American Association on Mental Retardation (AAMR) Adaptive Behavior Scale. Information provided by
Jean Smart, the babysitter for Ms. Dyer’s child, and Farah James, a Health Department nurse, as well as
information obtained from Ms. Dyer and clinic staff’s observations, were also used to determine the level of
Ms. Dyer’s adaptive functioning. According to reports from Ms. Smart and Ms. James, Ms. Dyer is able to
care adequately for her child. In addition, Ms. Dyer’s supervisor at work, Sarah Smith, reported that Ms. Dyer
is capable of functioning well at her job. In general, Ms. Dyer appears capable of self-care skills required in
independent functioning. These skills include the ability to eat, clean, and dress herself and maintain an
appropriate appearance. Moreover, she indicated that she is able to ride a bus or call a taxi to travel places
locally by herself. She reported an awareness of how to use the telephone and find a phone number. She
maintains her own phone notebook and can use a directory in some instances. She stated that she shops for
herself and is able to make simple purchases. She also reported knowledge of how to use a bank.

COMPETENCE TO MANAGE HER FINANCIAL AFFAIRS: An assessment of Ms. Dyer’s

competence to manage her financial affairs was performed. The accuracy of her understanding of her financial
assets, and the practicality and soundness of logic underlying her financial planning, were assessed. In
addition, the Managing Money subtest of the Independent Living Scales was administered, in order to obtain
normative data regarding Ms. Byer’s financial decisionmaking and money management capacities.
Ms. Dyer was asked a series of specific questions about her financial assets. Her responses were compared
with information provided by Mr. Perkins. Mr. Perkins had reported to Ms. Hudson that Ms. Dyer receives
her weekly paychecks directly from her employer. However, according to Mr. Perkins, Supplemental Security
Income (SSI) checks for both herself and her child are sent to Mr. Perkins, who deposits the money in bank

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accounts, drawing upon these funds when Ms. Dyer’s or the child’s expenses are greater than her salary. In
addition, Ms. Dyer has a savings account including money left to her by her family, as well as a savings
certificate from her father. The various accounts currently total more than $7,000. Mr. Perkins stated that he
was not certain whether Ms. Dyer had been informed as to the specific amount and nature of her assets.
When asked to do so, Ms. Dyer was able to describe her assets only partially. She knew that her salary
check was $125 weekly. However, she only knew the approximate amount of her SSI checks and did not
know how much money she had in the bank. She was aware of the existence of a large sum of money left to
her by her family. She reported that it was her understanding that her father left her enough money in the
bank to live on for the rest of her life. It appears that someone told Ms. Dyer that this was the case, because
she was not aware of the specific amount of money.
Ms. Dyer was able to provide a fairly detailed description of her bills and how she pays each bill. For
example, she reported that she receives a $125 check at work, which she cashes at work. Groceries cost
approximately $50, which she pays in cash. She pays the babysitter $40 in cash each week. She stated that she
puts aside the remainder of each week’s money to pay the monthly utility bills and other expenses (such as
shoes). Although she plans ahead by saving this money, she does not appear to budget systematically specific
amounts of money for each expense. Rather, she saves what is left over and pays her bills. If she requires
additional funds—for clothing, for instance—she contacts Mr. Perkins, who writes her a check or arranges
payment for such items directly with the merchant. She states that she obtains a money order at the post
office to pay phone and electric bills. Although she does not write checks, she stated that she knows how to do
this.
Ms. Dyer demonstrated her ability to work with money during the sessions. She was given coins and bills
and could “pay for” hypothetical items. She also would calculate—in her head, in some instances—how many
bills of specific types would be needed to pay for an item costing $30, for example. However, whereas she
knew that three $10 bills or a $20 bill and a $10 bill could pay for the item, she was unable to estimate how
many $5 bills would equal $30. In contrast, she could count out $30 in $5 bills. This differentiation of skills
suggest that whereas Ms. Dyer is able to work with actual money, her ability to work abstractly with monetary
concepts is somewhat limited. This appears to be the case when she is asked to consider larger sums of money.
She could not fully comprehend, for example, the difference between $500 and $5,000. She could only say
that the latter sum was “bigger” than the former. She also did not have a clear idea as to what could be bought
(e.g., a car, a house) with the latter sum.
Although Ms. Dyer demonstrated a working knowledge of how to buy items and could provide a detailed
account of her regular daily expenses, she was not able to grasp more complex concepts that would be
necessary in the administration of large sums of money. For example, she could not comprehend the
difference between a checking and a savings account. When these concepts were explained to her, she did
state that if she had control of all of her money, she’d “put it away in a bank.” Consistent with the above, Ms.
Dyer’s performance on the Managing Money subtest of the Independent Living Scales indicated only slightly
below-average ability with respect to basic skills (i.e., counting money), but significantly below-average
performance regarding more complex tasks such as paying bills and writing checks.

CONCLUSIONS AND RECOMMENDATIONS: Ms. Dyer demonstrated several strengths and

817
weaknesses related to her ability to manage her financial affairs. She is currently functioning in the upper end
of the mild mental retardation level of intelligence. She also has a severe speech impediment. Despite her
speech impediment and impaired intellectual functioning, she has adapted well to her environment. She is
able to work effectively and care for herself and her child. She is also able to travel within this local
environment by using the public transit systems. She responsibly manages the money to which she has access
—successfully paying her bills, and shopping to meet food and clothing needs. She currently sets aside money
to pay bills that are due at the end of the month. Clearly, she has learned to adjust to her environment in an
adaptive and productive manner. However, her intellectual deficits limit her ability to deal with abstract and
symbolic concepts, including monetary concepts. She is more adept at dealing with the concrete physical
reality of a situation than with theoretical concepts requiring her to plan for the future. She is not able to
specify how much money should be set aside each week to ensure a total amount at the end of the month to
cover her bills. She cannot perform the arithmetic necessary to handle large sums of money. Although this
inability does not currently interfere with her management of money, it would be likely to pose a problem
with transferring larger sums of money, to the extent that this requires “paper transactions” rather than direct
use of the money itself. Moreover, her ability to conceptualize the actual value of large sums is limited.
Janet Higham, Ph.D.
Clinical and Supervising Psychologist
Marci Levin, M.S.
Clinical Psychology Resident

(b) Discussion

This report was triggered by Ms. Dyer’s desire to have her guardianship dissolved. As noted in § 11.01, a
competence report must focus on the specific function the law deems relevant. The writers of this report
painstakingly obtained information from Ms. Dyer about her ability to handle various sums of money. She
was asked to describe her assets and the bills she paid; was given hypothetical situations requiring her to use
money to pay for different items; and was quizzed about other aspects of financial dealings, including banks
and checking accounts. Of particular note is the examiners’ use of hypothetical situations: What better way to
determine whether a person will be able to perform a task than to have her perform it in front of an examiner?
The examiners also attempted to gather information relative to Ms. Dyer’s general ability to deal with
abstract, as well as concrete, notions. Several sources were consulted (her guardian, her employer, her nurse,
her boyfriend, and even her babysitter) in an effort to derive useful data on this point. In addition,
performance-oriented psychological tests were administered that focused on organizational and social
judgment skills. In particular, use of a structured measure designed for these types of evaluations (the
Independent Living Scales) provides comparative data [see § 11.02(b)(2) for descriptions of similar, better-
studied, and more recent measures]. This kind of information might be very relevant to the court attempting
to determine the extent, if any, to which Ms. Dyer should be given control of her affairs.
On the central question presented by this case—whether Ms. Dyer should be allowed to control the money
managed by her guardian—the examiners suggest that although Ms. Dyer appears capable of handling small
sums of money, larger sums are difficult for her to fathom. Whether this fact should deny her control of the
money is a legal–moral issue that the examiners leave to the judge. This report does illustrate, however, that in

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competence cases (as opposed to most of the other types of cases discussed in this book), the gap between
clinical data and the ultimate issue is often minuscule.

19.08. WORKERS’ COMPENSATION FOR MENTAL INJURY [CHAPTER 12]

(a) Lane Cates Report

NAME: Lane Cates

D.O.B.: April 1, 1982

REFERRAL INFORMATION: Lane Cates is a 27-year-old married white male who was referred for a
clinical evaluation regarding possible psychiatric or psychological disturbance secondary to injuries received in
an accident on his job.

CLINICAL CONTACTS AND SOURCES OF INFORMATION: Mr. Cates was interviewed at my

office on the following dates: April 11, 2009 (two hours); April 30, 2009 (one-hour interview and
administration of the Minnesota Multiphasic Personality Inventory–2 [MMPI-2]); and May 16, 2009 (one-
and-one-half-hour joint interview of Mr. and Mrs. Cates and administration of the Life Experiences Survey).
Additional information received included the following: records of hospitalization and treatment associated
with the surgical removal of Mr. Cates’s right testicle in October 2008; records of attendance and disciplinary
actions from Mr. Cates’s employer, the Acme Machine Shop, from February 2005 through March 2009; brief
interviews with two of Mr. Cates’s fellow workers, Mr. Jones and Mr. Smithers.

CIRCUMSTANCES OF THE REFERRAL: Mr. Cates reported that he has worked at the Acme Machine
Shop since February 2005. His duties have included operating various power tools, including a lathe, a table
saw, and a grinding machine. He reported that in late September 2008, he was struck in the groin while
operating the grinding machine. He developed an abscess, which resulted in the surgical removal of his right
testicle on October 4, 2008. He returned to work in December 1998, but was assigned primarily to janitorial
and “cleanup” duties. He reported that he continues to experience periodic “nagging” pain in the right groin
area and occasional sharp or shooting pain extending to his right pelvic region. A lawsuit against the
manufacturer of the machine is pending.

PRESENT CLINIC FINDINGS: Lane Cates is a slender white male of medium build. He was on time for
each of the three interviews I had with him, and he was accompanied by his wife on each occasion. Mr. Cates
has been married for six years and has one child, a daughter two years old. He indicated that he comes from a
big family (three brothers and four sisters), and that he and his wife had also planned to have a large family.
In presenting his current problems, Mr. Cates began by stating that “it all happened as a result of my
accident” (referring to the groin injury and subsequent surgery). He complained of occasional difficulty in
maintaining an erection (corroborated by his wife’s statements) and a fear of pain during sexual intercourse; he
indicated that since his operation he has been occasionally fearful of having relations with his wife, who has at
times responded with anger and frustration. He voiced the fear that his “sexual problems” might lead to
further problems in their marriage, and his wife stated that they had talked about going to their minister for

819
counseling. Both Mr. Cates and his wife voiced concerns that they may not be able to have any more children;
laboratory findings from tests conducted at Harper Heights Clinic indicated that a February 2009 sperm
count from his left testicle was zero.
During the interviews, Mr. Cates appeared alert and oriented to his surroundings; he neither complained
of physical pain nor displayed pain response behavior. His speech was relevant, organized, and coherent, and
there was no interview behavior suggestive of major thought disturbance. Mr. Cates did, however, appear both
anxious and depressed. Anxiety was manifested in nervous movements of his hands (e.g., picking at his skin or
clothing) and face (e.g., grimaces), and in his frequently averting his eyes from the examiner’s, particularly
when discussing his groin injury and diminished sexual activity. He also reported feeling fatigued, unhappy,
and self-conscious, particularly around other men at work who know the nature of his injury. Transient sleep
disturbance was noted as well. His wife corroborated that he had had trouble sleeping for the past several
months and that he had become progressively “more nervous-acting.”
Other evidence provided further support for the conclusion that Mr. Cates is suffering from anxiety. The
profile from the MMPI-2, a self-report objective personality measure, portrayed an individual who is
experiencing moderate symptoms of depression and anxiety, including dysphoria (an emotional state often
characterized by anxiety or unease), sleep difficulties, ruminative thinking, problems with attention and
memory, and diffuse somatic complaints. (Response style scales on the MMPI-2 indicate that Mr. Cates
responded to the items in a consistent manner, and thus probably did not try to manipulate these results.) I
also interviewed two men who work with Mr. Cates: Mr. Jones and Mr. Smithers. They both stated that Mr.
Cates seemed more withdrawn and nervous “lately.”

OTHER PSYCHOLOGICALLY IMPORTANT EVENTS: An examination of Mr. Cates’s attendance

record at the Acme Machine Shop revealed almost perfect attendance (except for approved vacation time off)
until July 2008, two months before his accident. In July Mr. Cates took four days’ sick leave; two additional
days of sick leave were taken in August, and three sick days were taken in September before his accident.
When questioned about this, Mr. Cates responded that his father passed away in July and that “it hit me
pretty hard.” He indicated that he had been very close to his father when he was younger, but had felt more
distant from him in recent years. He had intended to try to “mend the fences between us”; he indicated that
his father had always been quietly dissatisfied with Mr. Cates’s choice of a wife, and later with the way he was
raising his child. His father’s sudden and unexpected death in July precluded any possibility of restoring their
relationship. As a result, Mr. Cates felt guilty about not having made up with his father, and Mrs. Cates
described him as “all torn up” following the funeral. The subsequent absences from work in late July, August,
and September were a result of continued mourning for his deceased father and “difficulty getting going
again” after the father’s death.
Partly as a result of this information, I administered the Life Experiences Survey to Mr. Cates and his wife
in the course of interviewing them. The inventory surveys the occurrence and perceived impact of potentially
stressful life events during a given period; Mr. and Mrs. Cates were individually asked to complete the survey
for the six-month period preceding Mr. Cates’s accident at work. Mr. Cates identified the loss of his father as
one stressful event, though he tended to minimize its impact on him; the only other stressful events identified
by Mr. Cates were receiving a traffic ticket for running a red light and decreased attendance at church.

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 Mrs. Cates, however, identified several other life changes during that period, including “trouble with in-
laws” (Mr. Cates’s parents, prior to Mr. Cates’s father’s death) and changes in social activities for the family
generally. Further inquiry into these areas revealed that Mr. Cates had been openly criticized by his father at a
family reunion approximately six weeks before the father’s death, primarily about the way he was raising his
child and his failure to be more financially successful. Mrs. Cates indicated that her husband could never stand
up to his father face to face, but later at home ruminated excessively about the confrontation and defended
himself to her against his father’s accusations. She indicated that he became preoccupied with proving himself
to his father and was subsequently distant from her and other family members for a period. It was during this
period that he received his traffic ticket for running a red light—an incident that Mrs. Cates described as
resulting from her husband’s “driving around in a daze . . . like he was lost in a fog.” She also reported other
incidents—for example, $2,200 damage to the family car; this was never fully explained, though she clearly
suspected that Mr. Cates was at fault. During Mrs. Cates’s narrative, Mr. Cates was noticeably uncomfortable
and appeared embarrassed, though he never defended himself except to assert meekly that the car had been
“sideswiped” while parked on the street. Mrs. Cates described her husband as periodically “absent-minded”
and possibly accident-prone, though she could recall no other specific events in their recent history to
illustrate this impression.
This description was corroborated by Mr. Jones and Mr. Smithers, both of whom said that Mr. Cates had
begun to “stare into space” during work hours beginning over a year ago, and that on several occasions prior to
the accident he had forgotten to turn off the machine he was using after he was through with it.

CLINICAL FORMULATION: Lane Cates is a 27-year-old married white male who presently reports
residual, transient pain secondary to an injury that necessitated the removal of his right testicle, as well as mild
to moderate anxiety and depression of approximately four months’ duration. He complains that his sexual
relationship with his wife has been unsatisfactory since his surgery, and his wife confirms this. Both appear
disappointed at the prospect of not being able to have any more children.
Given the medical evidence available regarding the nature of Mr. Cates’s surgery and the subsequent
laboratory sperm count, it appears reasonable to infer that Mr. Cates’s present anxiety and depression are in
part emotional reactions to the effects of his job-related injury. Other factors, however, must be considered in
weighing the relationship between Mr. Cates’s accident and his emotional state.
Most particularly, assuming that the reconstruction above of events concerning his father is accurate, it
appears reasonable to infer that Mr. Cates may have been clinically depressed prior to the accident that led to
his subsequent surgery. Having not had the opportunity to examine Mr. Cates at that time, I cannot describe
in detail the symptoms associated with the probable grief reaction and depression, or comment in any precise
way about their possible contribution to his job-related accident. However, it is probable that the death of his
father contributes to his current depression and loss of self-esteem, though there is no precise way to tease
apart the relative impact of this loss and that of the accident on his present emotional state.
Finally, a key facet of Mr. Cates’s personality may have had a role to play. The information gleaned from
individual and family interviews suggests that Mr. Cates is a somewhat passive individual who avoids
confrontation with others and may deal with conflict by excessive ruminating and preoccupation. It is possible
that this increased mental activity results in reduced attention to the external environment and may thus

821
contribute to inefficient performance or minor incidents such as running a red light. Although it cannot be
confirmed whether such inattention contributed to his accident at work and thus to his current mental state,
this history may have to be considered as a possible contributory factor.
I cannot say whether Mr. Cates will be “mentally” able to return to the type of work he performed in the
past. Certainly, from the evidence, it appears that his nervous and distracted state has increased rather than
decreased since the accident. I have recommended to Mr. Cates that he consider seeking professional help to
counsel him through his current problems (specifically, his reaction to his father’s death and to his injury).
This type of therapeutic intervention may reduce his anxiety level.
Leslie Dean, Ph.D.

(b) Discussion

This workers’ compensation report attempts to evaluate whether Mr. Cates has suffered “mental injury,” and
if so, the extent to which it might be the result of a work-related incident. The compensability of mental
injury in workers’ compensation cases varies considerably from state to state [see § 12.02(b)]. Several aspects
of the report should be noted.
First, the organization of the report tracks the framework of the legal rules for compensation in such cases.
After (as always) listing the sources of information, the examiner describes the incident that allegedly
precipitated the mental injury, then reports the evidence relevant to whether that injury existed, and finally
tries to discern the extent to which the present clinical findings concerning Mr. Cates’s mental problems are
related to the incident.
Second, the examiner attempts to seek corroboration of Mr. Cates’s statements whenever possible. Mr.
Cates’s wife and fellow workers were consulted about both the present and past state of his mental health. Mr.
Cates was interviewed on three separate occasions (given typical expert fee schedules, three interviews may be
viewed as a luxury by many forensic clinicians, however).
Third, an extensive historical review was conducted. Because the examiner took the time to develop Mr.
Cates’s work history, she became aware of the death of Mr. Cates’s father. Through use of the Life
Experiences Survey, she discovered the occurrence of other events that suggested an accident-prone person.
Without these aids, the picture of Mr. Cates’s mental injury and what “caused” it would be incomplete.
Fourth, the examiner is extremely cautious in discussing the issue of causation. As recommended in §
12.04, she avoids labeling any one factor as the cause of Mr. Cates’s current state, and she makes it clear that
his basic personality structure is a relevant consideration. Whether the work-related injury or some other
phenomenon was the “proximate” cause of his current problems is left up to the factfinder. In this regard,
however, it should be noted that as pointed out in § 12.02(c)(4), the law generally holds that employers take
employees as they find them. Thus it is unlikely that compensation would be withheld merely upon proof that
Mr. Cates’s grief over his father’s death or his absent-mindedness contributed to the physical injury. There is
no defense in workers’ compensation law of “contributory personality.” Even in a tort suit, it would have to be
proven that the father’s death, and not the work-related injury, was the proximate cause of Mr. Cates’s mental
state before compensation would be denied.
Finally, the report avoids making a value judgment regarding whether the injury was “severe” and admits

822
the difficulty of predicting its future course. It does suggest, however, ways of remediating Mr. Cates’s
problem that may prove relevant, if compensation is to be awarded, to whether and how much money should
be allocated to treatment.

19.09. REASONABLE ACCOMMODATION UNDER THE AMERICANS WITH

DISABILITIES ACT [CHAPTER 13]

(a) Mike Johnson Report*

DATE: July 8, 2009

SUBJECT: Mike Johnson

PURPOSE: The purpose of this assessment is to help determine whether a reasonable accommodation for
Mr. Johnson is necessary and feasible under the Americans with Disabilities Act (ADA). This evaluation is
undertaken under a written contract with Perfect Technologies, Mr. Johnson’s employer, under which I
agreed to “stimulate a problem-solving dialogue” with respect to accommodations for Mr. Johnson. The
contract states that Perfect does not have to accept any of my recommendations. The contract also makes clear
that I am providing information only from my perspective as a clinical psychologist, and that I will not address
financial or other nonclinical aspects that might be considered as potential reasonable accommodations to Mr.
Johnson.

BACKGROUND: The following information was obtained from Mr. Johnson’s psychiatric and employment
records; a phone conversation with Dr. Jones, who is a psychiatrist treating Mr. Johnson; and an interview
with Ms. Coltrane, Mr. Johnson’s supervisor. Mr. Johnson is a 35-year-old senior account executive for
Perfect Technologies, Inc., a large nationwide manufacturer and distributor of sophisticated communication
systems. By 2008, Mr. Johnson had held this position for five years and, according to Ms. Coltrane, was
considered an excellent employee. He consistently exceeded his sales goals and earned more than $150,000
annually in salary and commissions, largely by developing accounts with national clients.
After a recent sales campaign, Mr. Johnson admitted himself to the Paradise mental health facility in
Houston, where he was diagnosed as having bipolar disorder (sometimes called “manic–depression”). Mr.
Johnson immediately reported his illness to Ms. Coltrane and applied for short-term disability benefits. After
a three-week period of hospitalization and rest, Mr. Johnson told Ms. Coltrane that he was “ready to return to
work,” and that he should “stay this way as long as he continued outpatient treatment.” Mr. Johnson returned
to work, and after one month on the job appeared to be performing satisfactorily. Indeed, he exceeded his
sales quota for his first two months after returning to work.
Toward the end of this two-month period, however, Ms. Coltrane noticed that most evenings Mr. Johnson
worked extremely late, and that occasionally he did not arrive at work until lunchtime. Furthermore, during
this period it became clear that Mr. Johnson did not return phone calls he would normally be expected to
return, and that he failed to keep a few appointments during his travels around the country. During the next
six months (which led up to this evaluation), he failed to meet his sales quota in two successive months
(although he was again ahead of the quota in the other four months). Ms. Coltrane indicates that until last
year, Mr. Johnson “was my best salesperson.” But lately, she states, he has sometimes overloaded his schedule,

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making impossible demands upon himself; at other times he seems fatigued and doesn’t schedule enough
activity. She also remembers that after being back on the job for two months, Mr. Johnson told her, “I feel
stressed out again and wish there were an alternative.”
Dr. Jones, Mr. Johnson’s psychiatrist at Paradise, was contacted after Mr. Johnson signed a release form.
Dr. Jones is currently prescribing a combination of medications and varying the levels of medication.
Although Mr. Johnson’s mental illness has stabilized somewhat over the past several months, Dr. Jones
continues to monitor and adjust the drug therapy. According to Dr. Jones, this therapy will eliminate severe
shifts between mania and depression, but Mr. Johnson will continue to experience a wider range of euphoria
and depression than would persons without bipolar disorder. Mr. Johnson is also attending group therapy and
individual counseling sessions twice each week to help him function with bipolar disorder. Dr. Jones also
indicates that Mr. Johnson has a “minor” drinking problem, which can exacerbate the manic and depressive
episodes.

INTERVIEW WITH MR. JOHNSON: Mr. Johnson arrived for his interview on time, well dressed and
aware of the purpose and nature of the interview. When presented with the history above, he corroborated all
of it. He is aware that he has manic phases and depressed phases. Indeed, he stated that at the time of the
interview, he felt a “manic phase coming on,” although his speech did not seem particularly pressured and his
thought patterns were not delusional or grandiose. He states that he plans to continue taking his medication
and seeing Dr. Jones, and that he plans to curtail his drinking, if only because it can exacerbate the negative
side effects of lithium. He admits to some tension with Ms. Coltrane, whom he describes as a “strict
supervisor who wants everyone under her to meet their quotas, or they’re in trouble.” When asked if he can
work with Ms. Coltrane, he answered, “No problem, so long as she understands my situation and makes a
little leeway for it.” He feels confident that he can meet his quotas if he stays with his treatment and is
provided with some “help” at work, in particular if Ms. Coltrane allows him a lighter schedule when he
becomes depressed and monitors his work closely when he is more manic.

ADA ASSESSMENT: The ADA appears to require inquiry into four separate areas, discussed below.

Disability: Mr. Johnson is suffering from bipolar disorder, meaning that he has mood swings that alternate
between hyperactivity and grandiose thinking on the one hand, and depression and relatively self-deprecating
thoughts on the other. This condition can be moderated with treatment, as has been the case with Mr.
Johnson, but it is “permanent” in the sense that it will probably be with Mr. Johnson for the foreseeable
future. Furthermore, as indicated previously, the treatment will not remove all symptoms. Finally, if left
untreated, Mr. Johnson’s condition is likely to worsen and would probably disable him from carrying out any
of the functions he currently fulfills at Perfect.
Mr. Johnson’s moderate abuse of alcohol also contributes to his difficulties at work. This behavior does not
amount to alcoholism as traditionally defined, in that there appears to be no physiological addiction.

Qualified to Perform an Essential Function of the Job: According to Ms. Coltrane and to Perfect’s written job
description for Mr. Johnson’s position, Mr. Johnson’s job requirements are cyclical, consisting of periods of
intense performance and travel followed by periods of relative inaction. According to both Ms. Coltrane and

824
Mr. Johnson, Mr. Johnson’s work during the periods necessitating high performance is occasionally
substantially limited by his tendency to create grandiose schemes, to overload his schedule, and to work late at
night (when he is in his manic phase) or by his tendency to wake up late for work, miss appointments and
project deadlines, and experience fatigue (when he is in his depressed phase). According to Dr. Jones, Mr.
Johnson has experienced relatively mild manic and depressive cycles for the entire period after returning to
work. At the same time, as noted previously, he has often exceeded his quotas, and he recently landed a new
national account.
What these behaviors mean with respect to Mr. Johnson’s ability to carry out “essential functions” of his
job would seem an issue best assessed by Ms. Coltrane and Perfect, in conjunction with Mr. Johnson. What
this evaluator can assist with is advice as to how to accommodate Mr. Johnson’s disability in his current work
environment.

Reasonable Accommodation: The following steps might assist in improving Mr. Johnson’s performance at
Perfect:

1. The company could, consistent with confidentiality concerns, provide to Ms. Coltrane and others who
work closely with Mr. Johnson a description of bipolar disorder written in lay terms, to dispel common myths
associated with the illness. This description should include the facts that people with bipolar disorder
experience periods of mania and depression; that symptoms of mania include abundant energy, an unrealistic
belief in one’s abilities, increased risk taking, and irritability or distractibility; and that symptoms of depression
include pessimism, sleep problems, decreased energy, social withdrawal, and difficulty making decisions. It
should also make clear that treatment for bipolar disorder is generally effective, and that persons with this
condition function for long periods free of debilitating symptoms.
2. Probably no new staff support position is needed to accommodate Mr. Johnson’s disability. In other
words, Mr. Johnson does not need a full-time assistant to “shadow” him as he performs his duties. However,
Mr. Johnson could benefit from peer support, because he travels for prolonged periods and could suffer a
relapse while on the road caused by failing to eat or sleep regularly and by the increased stress of traveling.
One possible approach would be for Perfect, during a six-week transitional period, to send a coworker—
preferably one of Mr. Johnson’s choice—to accompany Mr. Johnson on extended national sales campaigns.
This coworker would ensure that Mr. Johnson eats and sleeps and does not become overanxious due to
stressful traveling. An assessment should be made at the end of this six-week period as to whether the
coworker is needed further; if so, appropriate arrangements should be made.
3. To the extent possible, the high-performance periods required of Mr. Johnson should be correlated with
periods during which his bipolar illness is at its lowest ebb. The latter periods can be ascertained by conferring
with Mr. Johnson himself and Dr. Jones. To facilitate this inquiry, Mr. Johnson and Ms. Coltrane should
meet weekly at an established time to discuss matters including sales calls, sales proposals, Mr. Johnson’s new
initiatives, and other essential tasks Mr. Johnson performs. The goal of these meetings, to which Ms.
Coltrane appears amenable, is to permit the two to make adjustments to the accommodation plan when
necessary.
4. In addition, flexible scheduling should be permitted, to enable Mr. Johnson to obtain appropriate
medical care and attend group therapy sessions.

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 5. Finally, Mr. Johnson should have a private office, to minimize interruptions during his periods of stress.

Before the company decides to implement these accommodations, Ms. Coltrane should of course be
consulted. As noted earlier, when asked whether she would mind meeting with Mr. Johnson on a weekly or
more frequent basis to determine his needs, she stated that she would not mind doing so if the meetings were
not long and if they would guarantee high-quality work from Mr. Johnson. However, if friction does develop
between the two, Mr. Johnson’s stress could be exacerbated. Thus ensuring that Ms. Coltrane agrees with the
preceding suggestions is important.

Threats to Others: At the present time, Mr. Johnson appears to pose absolutely no threat to others in the
physical sense. Of course, if he fails to meet his quotas he could “threaten” his colleagues in a fiscal sense, but
the above-described accommodations should prevent this from occurring. In any event, such a “threat” does
not appear to be the type of threat contemplated by the ADA.
Everett Sims, Ph.D.

(b) Discussion

The type of report provided here might be requested by a company or by the employee of a company as an aid
to implementing the ADA’s command that employees with disabilities be afforded reasonable
accommodation. Ideally, such a consultation would take place prior to any litigation, in an effort to reach
agreement between the parties.
Confidentiality can often be a major concern in such cases. For instance, many employees may not be as
forthcoming as Mr. Johnson was in providing consent for an evaluator to view and report on psychiatric
records. (In this regard, note that the ADA does not require accommodation of someone who does not make
known the limitations of his or her disability [see § 13.02(b)(3)].) Furthermore, “evaluation” of the employee’s
coworkers, in an effort to determine their attitudes toward the employee, may become important. For
instance, here the evaluator emphasizes the need to involve Ms. Coltrane in the plan, to ensure that it has a
chance of succeeding.
As to the report’s substance, note that at the beginning of the report the evaluator makes clear the areas of
his expertise. Only an industrial psychologist is likely to have the specialized knowledge to analyze job
requirements in detail, and even that type of professional is not necessarily equipped to provide information
helpful to the financial and personnel decisions required by a reasonable accommodation plan under the
ADA. Note further that the evaluator divides the report into the four substantive areas that are the focus of
the ADA [see § 13.02(b)]. In all four areas, the evaluator avoids the ultimate legal issue—that is, whether it is
permissible under the ADA to take action against Mr. Johnson for alcohol abuse (the relevant law states that
alcohol use short of alcoholism is not a basis for protection under the ADA); whether Mr. Johnson is qualified
for his job; whether any of the suggested accommodations are “reasonable”; and what is meant by the “threat”
exception to the ADA. At one time, the courts required that a disability must be considered in its corrected
state to determine whether the individual falls within the protection of the ADA, which meant that examiners
had to consider the impact of medication used in treatment, as this examiner does (by pointing out that
although Mr. Johnson takes his medication, it does not always ameliorate his symptoms). However, after the

826
amendments to the ADA, this aspect of the evaluation is not as important; the issue is simply whether a
disability exists, with or without correction [see § 13.02(b)(1)].
Like a treatment plan, an accommodation plan should be reduced to writing, after consultation with
professionals and the relevant parties. A written accommodation plan can facilitate interaction between the
employer and the employee, and can make review and subsequent modification easier. To provide some idea
of how such a plan might look, the following plan, based on the Johnson case and taking into account
nonclinical as well as clinical factors, is set out below:

A. Short-Term Accommodations

The following temporary accommodations will be accorded to Mr. Johnson as support for an orderly
resumption of the performance of all the responsibilities of a senior account executive. They are not
anticipated to be needed for more than six weeks.

1. A coworker will be designated as a peer support person for Mr. Johnson. This peer support person will
accompany him on every trip that requires an overnight stay outside Mr. Johnson’s base city.
2. On average, the number of sales calls Mr. Johnson will make will equal one-half of those required by his
normal appointment schedule until he shows an ability to handle more calls.
3. Mr. Johnson’s rate of pay will remain at his average for this period in the previous calendar year,
including bonus income.
4. Mr. Johnson’s emergency calls and new customer calls will be minimized.
5. Mr. Johnson’s supervisor will continue to learn the characteristics of bipolar disorder so that she has an
understanding of his disability, and will maintain an open-door policy for discussion.
6. Perfect will engage a neutral adviser to assist in the dialogue on evaluating and modifying the plan of
accommodation, and will make the adviser available to Mr. Johnson and his supervisor in Mr. Johnson’s base
city.
7. Although Perfect’s company policies would permit it to apply Mr. Johnson’s paid vacation to his period
of hospitalization, Perfect has chosen not to do this. Instead, Mr. Johnson may retain his pool of vacation days
so that he can draw on them to reduce stress.

B. Long-Term Accommodations

1. Mr. Johnson’s supervisor will permit the flexible scheduling of hours to accommodate his need to attend
doctor appointments, therapy sessions, or other treatment.
2. Mr. Johnson will have access to a private work office space, so that he can regulate his environment and
minimize interruptions during periods of stress.
3. During Mr. Johnson’s annual performance review, his supervisor will not use any information gathered
during his period of hospitalization or the period of short-term accommodation, or any information
concerning bipolar disorder, in considering whether Mr. Johnson qualifies for a promotion or raise.

C. Assessment

1. Mr. Johnson and his supervisor will meet at least weekly, and more often if necessary, to discuss whether

827
he is performing tasks as expected.
2. Mr. Johnson and his supervisor agree that he must return to the level of productivity consistent with a
senior account executive. That level of productivity should be reached in six weeks.
3. At the end of six weeks, Mr. Johnson and his supervisor will meet to discuss the removal of the short-
term accommodations.

19.10. CONSULTATIVE EXAMINATION FOR SOCIAL SECURITY [CHAPTER 13]

(a) Peter Doe Report

NAME: Peter Doe

D.O.B.: January 8, 1982
DATE OF EVALUATION: February 18, 2015
DISABILITY EXAMINER: Ms. Rae Pullen
CASE #: 13-6598389

REASON FOR CONSULTATIVE EXAMINATION: Mr. Peter Doe was referred by Ms. Rae Pullen of
the MetroCity Disability Determination Services office for a consultative examination. The request was
approved for a 1.5-hour examination, with no allowance for psychological assessment measures. Thus this
consultation was limited to a 1.5-hour interview and observations. In addition, I reviewed attached records, as
described below.

LIMITS OF CONFIDENTIALITY: Prior to the evaluation, I informed Mr. Doe that I was asked by the
office of Disability Determination Services, a branch of the Social Security Administration (SSA), to conduct
an evaluation to determine his diagnoses (if any), assess his mental status, make behavioral observations, and
determine any impact upon functioning of his mental health status. I informed Mr. Doe that the content of
the interview and my observations would be shared with the SSA in a report submitted to Ms. Rae Pullen,
and that the report would become part of the SSA records concerning his application for Social Security
benefits. Mr. Doe is applying for both Supplemental Security Income (SSI) (Title 16) and Social Security
Disability Insurance (SSDI) (Title 2) benefits. I informed him that relevant employees of the SSA would have
access to the evaluation report. I informed him that if he made an appeal of his case or otherwise turned to the
courts for assistance, that the evaluation report would be submitted to the court by the office of Disability
Determination Services. Mr. Doe said that he understood these conditions. He signed an informed consent
form specifying those conditions.

METHODS AND SOURCES OF INFORMATION:

1. Clinical interview and behavioral observations of Mr. Peter Doe.

2. Q28 mental status examination.
3. Outpatient records from City Mental Health Center.
4. Inpatient records from Cityside Psychiatric Institute.
5. Inpatient records from Midstate Recovery Center.

828
6. Mental health and substance abuse treatment records from Strong Living Rehabilitation Center.
7. Form 0588 submitted by Jane Follow, LMHC.
8. Family Health Center records.
9. Functioning Data Form.

RELEVANT HISTORICAL DATA: Unless otherwise noted, information in this section was provided via
self-report by Mr. Peter Doe. Mr. Doe said he was born and raised in MetroCity, Maine. He was raised by
his mother, and between ages 8 and 17 he had a stepfather, who left the family when his mother divorced him
due to his legal problems (according to Family Health Center records, he was convicted of Assault and
Battery and Possession of a Class B Substance, and incarcerated when Mr. Doe was 16). Mr. Doe got along
well with his mother, who was a licensed practical nurse, but his stepfather was a man with a volatile temper
who sometimes drank alcohol to excess and was verbally abusive. Despite these difficulties Mr. Doe looked up
to his stepfather, who advocated for him when he had difficulty in school. Mr. Doe has no siblings.
With respect to his family’s mental health history, Mr. Doe said he had never met his biological father, but
his mother informed him that his biological father may have had Attention-Deficit/Hyperactivity Disorder or
Bipolar Disorder. His mother suffered from intermittent depression, but most of the time she was happy and
energetic.
With respect to his education, Mr. Doe said he attended regular school through seventh grade. In the
middle of eighth grade, he was placed on an Individualized Education Program because he was falling behind
in math and reading, he was having difficulty keeping up with the work, he did not get along with one of his
teachers, and he was beginning to skip classes from time to time. In his sophomore year, he became
increasingly frustrated with math and lengthy reading assignments. He was placed in a vocational tech
classroom and provided with tutoring in the resource room. He also saw the school counselor. Mr. Doe left
school in tenth grade, but he later earned his general equivalency diploma (GED).
Mr. Doe’s employment history consists of four jobs: three years as a cashier, one year as a car dealer, two
years as a mechanic’s assistant, and a half year as a service station attendant. He said he lost the cashier job
because he once yelled at a customer, and because he often argued with his boss and thought he had better
ideas about how to run the store. He lost his job as a car dealer because he had a driving under the influence
(DUI) offense and lost his driver’s license, which was necessary for the job. At the mechanic shop, he retrieved
supplies for the mechanics in the shop, and did small jobs that did not involve engine work. He left that job
when his stepfather’s friend said he had “worked there long enough.” Mr. Doe then took a service station job
that was arranged by a vocational supervisor, but he was let go because he fell asleep on the job. At the time
this report was prepared, he had been unemployed for 20 months.
With respect to his mental health history, Mr. Doe said he first entered treatment in high school, when he
was asked to meet with the school counselor. The meeting occurred because he had some behavioral
difficulties in one of his classes and threw objects toward the teacher and some of the students. He sometimes
yelled at his teacher.
Mr. Doe was admitted to an inpatient hospital at age 15 due to suicidal ideation. The incident was
triggered by his hearing “the voice of the devil” tell him to “stop or you will die.” When asked if he was
supposed to stop some sort of behavior, Mr. Doe said, “I never did figure out what I was supposed to stop.”

829
He became distressed by the voice and he thought maybe the voice was telling him to die, so he took a
handful of medications he found in the medicine cabinet in his home. He then became frightened and told his
mother, who took him to the emergency room. He was hospitalized in an inpatient unit for 10 days and
prescribed an antidepressant medication (he did not recall which one) and Abilify.
The voices eventually stopped, and Mr. Doe returned home and to school. Mr. Doe’s mother subsequently
took him to City Mental Health Center for outpatient sessions. He benefited from treatment there. But
because he began to believe that his treatment provider was a friend of the devil (“he had an evil look” and “he
could tell what I was thinking”), Mr. Doe stopped treatment. He returned to school, but he began to have
attendance problems. He said the school principal “began to read my mind, too.” He said, “I hated that man
because he could look right into you.” He dropped out of school at age 17.
During late adolescence, Mr. Doe stopped playing sports. He began to spend time alone in his room. His
mother reenrolled him in treatment at City Mental Health Center, with a new therapist, and Mr. Doe began
to make progress. He also began to see a psychiatrist, who again prescribed Abilify. With that assistance, he
was able to study for his GED and ultimately obtained it. He started the first job (as a cashier), but had
difficulty getting along with his first employer. He got along better with his second employer (at the car
dealership), but his immediate supervisor “got on my case—she said I talked too fast.” He said that at that
time, he was confident in his capacity to sell cars; indeed, he thought he was the best car salesperson in the
dealership and perhaps in the whole state. He said, “Every day, I almost sold a car.”
Mr. Doe said he was hospitalized in a dual-diagnosis facility at Midstate Recovery Center right after his
lost the dealership job. He said, “I was drinking way too much booze.” He said he began using alcohol at age
15, and he began to use it to excess at about age 18 or 19. At the time of his DUI-related job loss at the car
dealership, he was drinking six to eight 12-ounce beers per night. But he stopped after he went to the recovery
center, and his mother subsequently enrolled him in City Mental Health Center for a third time, for therapy
and substance abuse treatment. He started the job at the mechanic’s shop, and his mother “hooked me up
with a sponsor [at Alcoholics Anonymous].” He said that arrangement worked well until “the voice of the
devil warned me off of him.” The radio in the shop “began to run an ad that told me, in so many words, that I
was being watched”; the radio lyrics sometimes were embedded in “unspoken lyrics,” but they would “beam
out to individuals who understood.”
After leaving that job, Mr. Doe was referred to the Strong Living Rehabilitation Center. He continues to
live in a group home provided by that facility. This was when he worked part-time in a service station, in a job
secured for him via the vocational rehabilitation component of that facility, but (as noted above) lost the job
for sleeping.
Mr. Doe has been living in the Strong Living Rehabilitation Center’s housing for over a year. He has
remained sober, as verified by his group home supervisor. Mr. Doe has resumed his psychiatric treatment. He
sees a nurse practitioner on a monthly basis. He is prescribed Abilify. He takes it “most of the time, except
when I see dots of poison on it.” He said he could tell when his Abilify had poison because “sometimes it has
a black dot, the dot of the devil, maybe.”
When asked about friendships, Mr. Doe said he had had friends on his baseball team in high school. He
said he had sometimes spent time with his cousin, but his cousin had gotten married and relocated out of
state. He stated that he currently has no friends and tends to spend time alone, except when he visits his

830
mother. He also said he dated in high school, but he has not had any recent dating relationships.

RECORD REVIEW: The functioning data form, completed by Mr. Doe’s mother, corroborates much of
this report. She noted that Mr. Doe began treatment in high school, was hospitalized twice, and attended
outpatient treatment at City Mental Health Center for the periods Mr. Doe described. She verifies that he
takes medication prescribed by his psychiatrist that includes Abilify and occasional doses of Haldol. He is
having difficulty taking care of himself and needs encouragement to shower, clean his room, and comb his
hair. He sometimes does not change his clothes for days at a time. He can pay attention to very simple food
preparation, such as making toast, but he becomes confused with recipes. He goes to treatment sessions, but
he sometimes does not take his medication due to delusions. His mother noted that Mr. Doe’s mental
condition has been gradually worsening over the course of his young adulthood.
Records from Cityside Psychiatric Institute confirmed that Mr. Doe was hospitalized in adolescence
secondary to suicidal ideation/attempt and auditory hallucinations. The report also contained the following
account of this hospitalization: Mr. Doe had ingested medicine from the home medicine cabinet. At that
time, his hygiene had deteriorated, and he was spending most of his time alone. When he did go out, he spent
money excessively and was reported to be hypomanic. His mood sometimes was depressed and sometimes was
elevated during hospitalization. During the hospitalization, he “began to lecture his peers,” and he “told them
the devil would mark them up for counting.” He avoided groups initially, but began to participate and show
gradual calming and abatement of suicidal ideation. He was discharged with a recommendation for a partial
hospitalization program. He was diagnosed with Delusional Disorder as defined by the Diagnostic and
Statistical Manual of Mental Disorders, fifth edition (DSM-V).
Outpatient notes from City Mental Health Center show that Mr. Doe attended weekly appointments in
adolescence (ages 15–16) and again in young adulthood (ages 21–22, 24, and 31). He was seen in therapy
weekly, and he saw both a psychiatrist and a nurse practitioner for medication appointments. He was
diagnosed with Schizoaffective Disorder and was prescribed antipsychotic and antidepressant medications.
Therapy focused mainly on his delusional and grandiose thoughts. He also was provided with substance abuse
counseling. Records describe his alcohol use as primarily consisting of consumption of beer. During sobriety,
his delusions and grandiose thoughts did not improve.
Midstate Recovery Center records describe Mr. Doe as an individual diagnosed with Delusional Disorder
and Bipolar Disorder. He also was described as having a history of Alcohol Abuse. At Midstate Recovery
Center, he was admitted with a blood alcohol level of zero, and labs showed no other substance use. He was
described as having pressured, excessive, tangential, and circumstantial speech. His hygiene and grooming
were poor upon admission. He made limited eye contact and showed labile affect. He sometimes
demonstrated psychomotor agitation, which consisted of pacing up and down the hallway while speaking in
undertones at a nonstop rate. Most of the symptoms improved during hospitalization, but the length of stay
was an extended one (6 weeks), and his improvement was gradual. He had some difficulty with medication
adherence. He fixated on one of the other patients and accused that patient of stealing his thoughts. He also
had a delusion that a lyricist owed him a substantial amount of money because of his “hidden text lyrics” and
“sky fly lyrics.” He was discharged to a group home, where he continued therapy and substance abuse
rehabilitation.

831
 The 0588 form received from Mr. Doe’s counselor at Strong Living Rehabilitation Center described him
as having delusions and agitation. He had difficulty making and keeping friends, because he tended to make
accusations about other individuals that were based upon his misinterpretations. His hygiene and grooming
were variable, and he sometimes would go for days without changing clothes or cleaning up. He sometimes
wandered the streets while talking to no one in particular. His mother visited him, but she said she could not
take him home, because taking care of him exhausted her. Mr. Doe was asked to do simple chores, but he had
difficulty with concentration, task initiation and completion, and getting along with others. He sometimes
made odd and accusatory statements. He sometimes was nonadherent with medication, but more often took it
as prescribed. His counselor described him as having a poor prognosis.
Family Health Center records show a steady series of appointments concerning his general health status,
with occasional brief mental status examinations and continuous psychotropic medication prescriptions. Notes
from the past two years describe concern about his grooming, hygiene, self-care, activity level, and energy. He
was described as having low energy, with hypersomnia, inactivity, a poor sense of relatedness, and “strange
statements.”

MENTAL STATUS EXAMINATION AND BEHAVIORAL OBSERVATIONS: Mr. Doe was

oriented to person, place, time, and situation. He arrived 10 minutes late for his appointment and was
accompanied by a caseworker. When I asked for permission to speak with the caseworker, he said he thought
she was “in league” and declined to give permission. Mr. Doe was somewhat disheveled. He was hostile at
times, but he was able to calm down and cooperate with encouragement. He had difficulty sitting still and
sometimes stood up and walked about the office. Each time I asked him to return to his seat, he did so
without protesting. His mood ranged from calm to anxious and agitated. His affect was variable.
Mr. Doe sometimes had difficulty responding to questions because of tangential and circumstantial speech.
His speech was rapid and excessive at times. He was difficult to interrupt at times. He ultimately was able to
respond to most questions, but it took effort to get him to concentrate on the content of the questions. He
provided a history, but it was not chronologically organized.
Mr. Doe completed a variety of concentration tasks on the Q28, but his error rate was high. He had
difficulty mentally manipulating and reversing information. He had difficulty producing information at a
steady pace. He made false starts and would begin again. He had difficulty completing tasks. Although he had
transient coherence, most of the time his thoughts contained tangential and paranoid content. For example,
he said that his caseworker was trying to thwart his efforts to get well; that the devil continued to warn him
away from evil agents at times; and that he was sure that people were trying to steal money from him, most
notably a big check he was expecting from a famous artist. When asked to describe the voice of the devil, he
said it was a male voice that was coming from outside his head.
Mr. Doe was able to name the president and the governor, and one past president. When asked to
interpret the proverb “All that glitters is not gold,” he gave a tangential description of how it related to the
check that he was expecting from the famous artist. He had difficulty with single-digit multiplication, but he
could accurately add and subtract single-digit numbers, and could calculate the change he would receive if he
purchased a coffee that cost $4.25 and paid with a $5.00 bill. He said he has never kept a checkbook, but
manages cash. He said his mother keeps track of his finances. When asked if he could get around the city by

832
using public transportation, Mr. Doe said that he used to take the bus, but he stopped because he disliked the
crowds. He gets rides from his mother.
Mr. Doe endorsed many symptoms consistent with hypersomnia, psychomotor agitation, increased
appetite, aimless movement, pacing, and depressed mood. He said he had difficulty falling asleep because his
mind was “too busy.”
Mr. Doe said he has difficulty enjoying tasks, but he does enjoy watching a certain game show on
television. He spends most of his day sitting in his room, but he sometimes engages in group home chores.
He said he has remained sober for the past three years and does not want to relapse.
I asked Mr. Doe to read several passages from a local newspaper that features brief articles. He had
difficulty reading words of three or more syllables, but he was able to summarize the gist of simple articles of a
few paragraphs. With respect to his insight and judgment, Mr. Doe said he thought he needed to remain in
the group home. He said he did not need supervision, but he sometimes needed help on tasks. He said, “I
need someone to put my schedule right sometimes.” When asked to explain what he meant, he said, “I just sit
and sit if no one tells me to go somewhere or do something.” Mr. Doe said he needs treatment, but “not that
much.”

INTERPRETATION: Mr. Doe meets DSM-V diagnostic criteria for Schizoaffective Disorder. Symptoms
of relevance include abnormal thought processes and content, auditory hallucinations, paranoid and grandiose
ideation, delusions, aimless pacing, agitation, intermittent mood dysregulation, rapid and excessive speech,
deteriorating social functioning, concentration impairment, and difficulty adapting to stress and changing
circumstances. Mr. Doe also meets DSM-V diagnostic criteria for Alcohol Abuse, in remission. Records show
that his labs have been negative for alcohol and that he has remained sober for the past three years. He has
shown symptoms and behaviors associated with Schizoaffective Disorder during periods of sobriety.
With respect to his capacity for self-care and other activities of daily living, Mr. Doe has variable hygiene
and grooming skills and has difficulty organizing himself. He needs reminders and supervision. His mother
manages his money and takes care of some of his shopping. She reminds him of appointments and makes sure
he keeps in contact with treatment providers and self-help resources. She is in regular communication with his
case manager. His case manager keeps track of his appointments.
With respect to his capacity for concentration, persistence, and pace, Mr. Doe’s mood is anxious, and his
affect is variable. He has difficulty concentrating due to emotional lability and disorganized thinking. He has
difficulty initiating and completing simple chores. He is inactive. Even when he engages in simple tasks, he
has difficulty with sustained attention and concentration. His pace is slow due to the interfering effects of
atypical thoughts and labile affect. He can recall instructions, but he has difficulty with motivation and follow-
through. He sometimes completes very simple chores in the group home, but not efficiently or in a complete
manner, according to his treatment source. He needs reminders.
With respect to his capacity for socialization and cooperative relationships with coworkers and supervisors,
Mr. Doe is hostile and agitated at times. His thought form is remarkable for tangential and circumstantial
speech. When he communicates, he has difficulty expressing himself due to tangential statements, grandiose
ideation, and sometimes paranoid ideation. He sometimes has a fixed delusion concerning an artist who owes
him money. He has hallucinations concerning the voice of the devil. He is suspicious about some of the

833
individuals supervising the group home. At times, he is suspicious of family members. He has difficulty
forming and keeping friendships, and is isolated except for structured social contacts in the group home. He
can be amiable at times, but he more often is accusatory and agitated. He has been let go from previous jobs
for a variety of reasons. He gets along with authority figures some of the time, but he also has bouts of
suspiciousness, anger and arguing. He has suspicious ideation about some of his caregivers.
With respect to his capacity for adaptation, stress tolerance, and community travel, Mr. Doe has partial
insight and limited judgment. He will sometimes seek treatment on his own accord, but more often he does so
only after his mother or other individuals admonish him to do so. He is easily overwhelmed by ordinary
stressors. He is able to find his way around the community, but he needs someone to accompany him when
traveling in public, due to his disorganization and psychosis. He avoids crowds.
To summarize, Mr. Doe has been symptomatic for well over one year. It is unlikely that Mr. Doe could
sustain concentration, persistence, and pace in simple work, or that he could get along with coworkers or
employers in a sustained fashion. His prognosis is poor, according to his current therapists. Records describe
him as benefiting from medication at times, but he has not been able to sustain those benefits. His psychosis
has remained intractable and disorganizing, even with medication and group home treatment. He has a
longitudinal history that is consistent with his current presentation, and his records show consistency of
symptoms across the course of time. He continues to have a thought disorder that would interfere with work
relationships, concentration, persistence, and pace. He wants to return to work, however, and he is willing to
engage in vocational training. Should he train for work, he is best suited for simple work that involves limited
public interaction. But it is doubtful that he will make meaningful vocational training progress in the near
future. He has been unemployed for almost two years, and his mental status has deteriorated gradually and
significantly.
Should Mr. Doe be awarded benefits, he should be assigned a rep payee due to (1) his mental
disorganization, (2) his history of alcohol abuse, and (3) his need for money management assistance from his
mother.
Respectfully submitted,
Don Torres, Ph.D.
Licensed Psychologist

(b) Discussion

As noted in § 13.04(b), the SSA may request a consultative examination (CE) when medical records provide
insufficient information about a claimant’s eligibility for social security benefits or to resolve conflicts in the
evidence. Given limited resources, the SSA usually places restrictions on the duration of such an evaluation
(e.g., as in this case, it might approve 1.5 hours of evaluation time), as well as on the measures that may be
used (e.g., it might limit psychological testing to an intellectual assessment as part of or in addition to the
fixed evaluation period). Such limitations can put the clinician asked to conduct the CE in a quandary if he or
she believes that more than an interview, or a longer interview, is required; these limitations may also have an
impact on the quality of the evaluators willing to perform CEs and the quality of the evaluations that are
produced.
As noted in § 13.04(a)(1) and detailed in Table 13.2, to be eligible for benefits, a claimant like Mr. Doe

834
needs to demonstrate medically documented persistence of one or more specified symptoms associated with a
schizophrenia spectrum or other psychotic disorder (Criterion A), resulting in “[e]xtreme limitation of one, or
marked limitation of two,” of these four areas: understanding, applying, or remembering information;
interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself
(Criterion B). If the disorder is a “serious and persistent” one currently alleviated with medication or
psychosocial support, the claimant can substitute for Criterion B a showing of at least a two-year medically
documented history of the disorder, together with evidence of both (1) “[m]edical treatment, mental health
therapy, psychosocial support(s), or a highly structured setting . . . that is ongoing and that diminishes the
symptoms and signs of [the] mental disorder”; and (2) “[m]arginal adjustment, that is, . . . minimal capacity to
adapt to changes in [the] environment or to demands that are not already part of . . . daily life” (Criterion C).
The report above addresses all three criteria in its final section. While such a report need not—and, given
ultimate-issue concerns, perhaps should not—use the precise language just given, this report might have more
clearly related its findings to the three criteria.
Given the specific criteria (and analogous ones for other types of disorders), evaluators who serve as
consultative examiners must have training in the diagnosis of neurocognitive disorders (formerly organic
mental disorders); schizophrenia spectrum and other psychotic disorders; depressive, bipolar, and related
disorders (formerly affective disorders); intellectual disorder; anxiety-related and obsessive–compulsive
disorders; somatic symptom and related disorders; personality and impulse control disorders; autism spectrum
disorder; and (as of January 2017) neurodevelopmental, eating, and trauma- and stressor-related disorders.
Furthermore, they should be trained to determine the claimant’s functioning capacities in the four domains
noted above (having to do with using information, interacting with others, concentration, and managing
oneself). As § 13.04(a)(2) indicates, the criteria are somewhat different for children, but they mirror the
functioning domains of adults.
Consistent with this sample report, CE reports usually contain the following elements: (1) identifying
information; (2) documentation of a warning of the limits of confidentiality; (3) a history section; (4) a
description of current symptoms and functioning from the claimant; (5) a mental status examination that
includes a formal measure of mental status and documentation of behavioral observations; (6) diagnoses; (7) a
description of symptoms relevant to the diagnoses; and (8) conclusions concerning the impact upon
functioning in the relevant domains. Because such reports are read by administrative decisionmakers who
routinely see them, the extensive use of clinical jargon in this report may not be as problematic as it is in other
contexts.
Finally, because the SSA regulations demand longitudinal evidence of a mental disorder, the history
portion of the CE report is particularly important, and should trace the development of any mental disorder
that exists and how it changes over time (e.g., improvements, deterioration, changes in diagnoses or
functioning). Thus this section of the report virtually always includes a review of the claimant’s mental health
history and other historical factors germane to mental health status and functioning, such as educational
background or comorbid health concerns. Corroboration of the claimant’s account of mental health history is
important, again raising concerns about time limits on CEs. Somewhat alleviating this concern, however, is
that fact that any records that exist are usually provided to the evaluator by the SSA or the claimant.

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836
 19.11. IMMIGRATION STATUS [CHAPTER 13]

(a) Ruth Amantha Report

November 30, 2012

Theodore Tabow, Esq.
1000 Main Street
Springfield, MA
Re: Ruth Amantha

Dear Mr. Tabow:

Thank you for the opportunity to consult with you concerning Ruth Amantha, age 35, D.O.B. January 4,
1977. As described in your referral, Ms. Amantha is facing deportation proceedings for having remained in
the United States beyond the pendency of her visitor visa. Below is a summary of my forensic psychological
examination of Ms. Amantha, a summary of my interview and observations, the records reviewed, relevant
clinical and journalistic literature, and my opinion and recommendations. This letter follows the structure
submitted to me by you, her lawyer.

Reason for Consultation: Ruth Amantha submitted an Application for Asylum and for Withholding of
Removal. Ms. Amantha says she delayed seeking asylum due to unawareness that it was an option. This report
describes her mental health status as it relates to the circumstances in her country of origin and her delay in
filing an Application for Asylum and Withholding of Removal.

Examiner Qualifications: I have been licensed as a psychologist in the Commonwealth of Massachusetts

since 1992. I have been board-certified in forensic psychology by the American Board of Professional
Psychology since 1996, and I also hold board certifications in clinical psychology (American Board of
Professional Psychology) and neuropsychology (American Academy of Pediatric Neuropsychology). I
completed a postdoctoral fellowship in forensic psychology in 1990–91 at the University of Massachusetts
Medical School. I am a Fellow of the American Psychological Association and the American Psychology–Law
Society. I have chaired national committees relevant to clinical psychology, forensic psychology, and
neuropsychology. I have a clinical and research appointment at Local Medical School and Local Hospital in
Springfield, Massachusetts. I have conducted evaluations in several Application for Asylum and Withholding
of Removal cases, and have testified on the basis of such evaluations in U.S. Federal Court District 2, U.S.
Federal Court District 3, and U.S. Federal Court District 7.

Notification of Limits of Confidentiality: Prior to the consultation, I informed all parties I interviewed that I
am a psychologist, and that I was asked by counsel to gather information concerning the case of Ruth
Amantha that the Court might use in considering her mental health status as it relates to her legal
circumstances and delay in making an application. I informed all parties that the content of the interview,
assessment results, record review, and observations would be shared with her attorney and the Court in the
form of a consultation report, and that I might be asked to testify in court concerning the report contents. Ms.

837
Amantha and other parties interviewed expressed comprehension of these terms, and Ms. Amantha signed a
release concerning the terms.

Methods and Sources of Information:

1. Clinical interview of Ms. Ruth Amantha.

2. Interview of Ms. Alvina Ray, friend of Ms. Amantha.
3. Interview of Ms. Martha Mee, clinician at Local Mental Health Center.
4. Telephone interview of Dr. Lillian Solah, internist at Local Family Health Clinic.
5. Internet interview of Jane Amantha of Oxford, England.
6. Telephone interview of Donna Amantha of Amsterdam, The Netherlands.

I reviewed the following documents:

1. Application for Asylum and for Withholding of Removal, Ruth Amantha.

2. Copy of Passport at Entry, Ruth Amantha.
3. Kenya: Country Reports on Human Rights Practices, U.S. Department of State, Bureau of Democracy,
Human Rights and Labor; February 23, 2000.
4. Outlawed Female Genital Mutilation Persists in Kenya. The Journal, Month and Date, 2011.
5. Kaczorowski, J., et al. (2011). Adapting clinical services to accommodate needs of refugee populations.
Professional Psychology: Research and Practice, 42(5), 361–367.
6. Gong-Guy, E., et al. (1991). Clinical issues in mental health service delivery to refugees. American
Psychologist, 46(6), 642–648.

Relevant Historical Data: Unless otherwise noted, information in this section and the following Delay of
Application section was provided by Ms. Ruth Amantha. Ms. Amantha stated that she was born in Nyanza,
Kenya, and that she grew up on a small two-acre farm near Ginju, Kenya. She had one brother and three
sisters. Her family supported itself with farming income, and the children were able to attend school because
of that income. The children worked hard on the farm in addition to attending school. Her parents grew a
variety of vegetables. They had three cows that they milked manually. Ms. Amantha’s mother went to the
market in Nyanza every Tuesday to sell produce. By Kenya’s standards, Ms. Amantha’s family was regarded as
middle-class, and they led a comfortable life. Ms. Amantha finished the equivalent of high school. She took
vocational courses at a small community college in Butare, Central Province, Kenya. She planned to attend
college, and she hoped to become a business assistant.
Ms. Amantha described her family as part of the TribeOne tribal group. As a child and adolescent, she was
aware of ethnic and tribal strife, but she thought of it as something that was limited to other regions of Kenya
and that only occurred during election time.
However, in April 1998 after a major election, when Ms. Amantha was age 21, the strife spread; in
particular, it led to the killing of boys and men of TribeOne. Ms. Amantha reported that on April 20 of that
year, her family was awakened one morning by young TribeTwo men who had entered their farm and were
pounding on the doorway, demanding her brother, Arthur Amantha. When Ms. Amantha’s father, John,
opened the window to ask why they needed Arthur, the men demanded that both Arthur and Mr. Amantha

838
come out of the house. Ms. Amantha’s mother hid her and her sisters under the bed. Ms. Amantha’s father
argued and begged. He said the warriors could have anything from the farm, but pleaded with them not to
take his son. One of the men killed Ms. Amantha’s father with a spear. They stole the cows and then killed
Ms. Amantha’s brother by cutting his throat and forcing the cows to trample him. Ms. Amantha did not see
the murders, but she could hear what was taking place. She saw the bodies of her father and brother
afterward. Her mother screamed, and neighbors came to comfort her. They urged her to go to a nearby
church. When the remaining family members arrived at the church, there were about 80 other individuals
there, all victims of violence.
Ms. Amantha, her three sisters, and her mother, Hannah, were taken in by Catholic church officials. They
stayed in the church compound. Priests organized the mothers, asking them to go daily to their farms to
retrieve food for the children. Two weeks after the death of Mr. Amantha’s brother and father, Ms.
Amantha’s mother and six other mothers were slashed and murdered on one of the women’s farms as they
attempted to gather food for their children. There were rumors that the women had been raped before their
deaths. Ms. Amantha was highly traumatized and grief-stricken when her father and brother died, but her
mother’s death affected her even more significantly. She first learned of it through the failure of the seven
mothers to return to the compound. It was widely known that if women did not return, they had probably
been murdered. Ms. Amantha learned through the priest that her mother had died a horrible death, and that
the seven women’s bodies were left in a mass grave. Because it was not safe to leave the compound, Ms.
Amantha had no way to attend the memorial or visit her mother’s grave. Instead, a deacon of the church
attended the memorial on her behalf.
In the next month or so, Ms. Amantha remained at the church compound, where victims of violence came
and went. She was confused and overwhelmed. She saw that some of the younger children, usually those
under age five, were adopted by other families. The older children who had completed high school were asked
by a priest to write essays about what happened to their families. The priest later revealed that the essays
might help the high school graduates to leave Kenya, become further educated, and then return to educate
younger generations of Kenya. A priest helped the group of students obtain passports. Ms. Amantha’s
passport was issued on July 10, 1998. She and 11 other students went to the U.S. Embassy in Kigali, Kenya,
to request Visas to enter the United States. After they were issued Visas, they left Kenya with a priest named
Father Matthew, traveled through Amsterdam, and arrived in Baltimore, Maryland, on July 31, 1998.
Ms. Amantha said she contacted a high school friend of hers who was attending boarding school in
Greenwich, Vermont. She remained fearful that she would be murdered if she returned to Kenya (which, as
indicated above, was what the rest of the group planned to do). She requested help from her friend to remain
in the United States. Without telling the members of her group, Ms. Amantha fled the group and stayed a
sleepless night at an inexpensive hotel, paying the bill with the $60 allowance given to her by the church. Her
friend made arrangements for bus transport. In the morning, she took a bus to Burlington, Vermont, arriving
about midafternoon. Her friend was waiting for her in her car. Her friend bought her clothing, taught her
enough English to pass the driver’s written examination, and helped her obtain a driver’s license and Social
Security card. Her friend also gave her a place to live and advised her that her life would never be the same
again. Ms. Amantha felt guilty about leaving her sisters and classmates behind, and about running away from
the Catholic workers who had provided her with protection and assistance, but her friend encouraged her to

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“get rid of her guilt.”
Ms. Amantha earned her Vocational Degree from the Johnson Vocational School in Burlington, and then
worked at Smith’s Vocational Training School. She worked at Dodge’s Appliances in Springfield,
Massachusetts (1999–2001), and at Fogerty’s Hardware in Burlington, Vermont (2001–2004). In 2003, she
later obtained another degree from Phoenix Technical High School in Springfield, Massachusetts. She turned
down financial aid and instead paid by way of a payment plan. She graduated on June 4, 2003, and passed her
licensing exam the next month. In November 2004, she gave birth to her first child, Edwin, and remained
home with her baby for a month. In 2005, Ms. Amantha married the father of Edwin, Mr. Davis Deer. She
applied for legal status via marriage, but her husband was detained just before the interview on a warrant for a
criminal case. Ms. Amantha posted bail for him. She retrieved him from the jail, but he excused himself to get
a cup of coffee, and then abandoned her and their child. He called her that evening to say he would not
return. He called sporadically afterward with a blocked caller ID. His last call was in January 2007. She
divorced him. After Ms. Amantha’s life settled again, she began working at Sumner’s Marketplace in
Springfield (2007–present). On February 4, 2009, she married Mr. Raymond Sun, whom she met at work.
She subsequently gave birth to two daughters. Her children are now ages 7 years, 3 years, and 17 months. Ms.
Amantha has no history of arrest or conviction for any crime in the United States or in Kenya.
Ms. Amantha said she was “not well” when she first entered the United States. It took her four to five years
to feel comfortable in the United States. She did not feel that she was herself. She had a continuous out-of-
body, dream-like sense of herself. She walked around in a condition of numbness and unreality. Once she
enrolled in continuing education courses, she began to understand herself and her symptoms. Before she took
the courses, she said, her adult life was “horrible.” Ms. Amantha felt lonely, sad, and upset when she saw
children with their parents, particularly if she observed mothers about the same age as her mother at the time
her mother was murdered. She would imagine that her mother was like the mothers she observed. She became
upset when she observed happy family activities, and she would find herself imagining what her life would
have been like had her parents survived.
Ms. Amantha said that her relationships have been problematic because of her fearfulness; her tendency to
become emotional and then to shut off her emotions by escaping into numbness; and her occasional
screaming at others when she is emotionally aroused. She previously cohabited with Mr. Sun, but then
separated from him prior to their recent reunification and marriage. She cried frequently when talking with
her husband. He tried to be supportive, but he became frustrated with having to continually calm her down.
He asked her to try to learn how to cope and move on. She temporarily left him because she could not figure
out how to manage her symptoms or how to work things out with him. At his urging, she agreed to seek
therapy.
Ms. Amantha said that she suffers from frequent flashbacks, and that she avoids emotions (both positive
and negative) by staying busy. She checks her children frequently because she fears for their lives, making her
husband frustrated by her constant overprotectiveness and fear of disaster or death. She avoids movies and
television shows because of the noise and violence. She finds pleasure only in quiet activities such as reading
books or knitting. She remains fearful that she will die an untimely and violent death as a young woman. She
has bought life insurance because of her fears that she will die prematurely as a young mother.
Ms. Amantha said she used to dream almost nightly about the deaths of her parents and brother,

840
particularly about her mother’s death. She has these dreams less frequently now. She used to cry almost daily,
but now cries about once to twice per week. When she talks about their deaths, she dreams and has
nightmares about it. She typically avoids discussing her mother unless it is absolutely necessary. She said she
has found a way to trust people, but she feels scared much of the time and is slow to trust others. When
people scream, it bothers her immensely. Other loud noises such as ambulances bother her considerably.
Ms. Amantha expressed strong fear that she would be killed if she returned to Kenya. Her parents’ farm
was taken by members of the TribeTwo tribe. She fears that she would be harmed because of her membership
in TribeOne and because of her children’s United States citizenships. Ms. Amantha said she is afraid to live
anywhere in Kenya. She fears she will be murdered like her parents and brother. She cannot imagine leaving
her children behind were she to be deported, but she fears that if she were to take them with her, her children
would be kidnapped by the Ukazi, a terrorist-like group favoring return to indigenous African customs
through ethnic violence and disdain for modernization. She said her children have only known United States
customs and culture. They do not speak TribeOne’s language; they know nothing of Kenyan culture; and they
would face overwhelming differences in culture and lifestyle. She is concerned that they would not get a good
education, or perhaps any education at all, if she were made to return to Kenya. She does not know how they
would adjust. Finally, she doubts that her husband would accompany her if she were made to return to Kenya,
and thus she fears that her marriage would end.

Data from Ms. Amantha’s Sisters: Ms. Amantha’s sisters secured permanent Visas to relocate via asylum
applications in the countries in which they now reside. I contacted Ms. Amantha’s oldest sister in Oxford,
England, via a secure Internet connection, and her second oldest sister in Amsterdam, The Netherlands, via
telephone. They provided similar accounts of their parents’ deaths (the accounts can be found in attachments
to this report). I did not contact the third sister, because she was a young infant when the deaths took place.

Delay of Application for Asylum and Withholding of Removal: Ms. Amantha explained that she delayed her
application because she did not know it was possible to apply for asylum. She was afraid to tell people what
she had been through. She did not want to talk about the bad experiences in her life. She could not find the
words to tell people. She was embarrassed that she was sponsored by the Catholic workers and then escaped
from them. She was embarrassed that she could not honor the positive aspects of her African heritage without
experiencing fear and intrusive recollections. She was concerned that people would pass judgment against her
for being the child of murdered parents, and for fleeing the help of a charitable organization. She said she fled
out of desperation and fear of what would become of her if she were made to return to Kenya as a young
woman.
Early in her tenure in the United States, Ms. Amantha could not even imagine speaking out and telling
people what had happened. In 2011, she shared her story with a neighbor and friend, Ms. Alvina Ray, who
referred her to a local Legal Aid Clinic. Workers in that clinic referred her to her attorney. Through these
measures, she learned that asylum might be an option. She said that she had no pictures of her family
members or death certificates for her parents or her brother, but that her sisters would tell the same story. The
sisters have not been to the United States, and she does not have the means to visit them.
Ms. Amantha said that although she remains in telephone contact with her sisters, they do not discuss the
deaths of their family members. They do not discuss her parents or brother, or their former lives in Kenya.

841
She said the memories are “too painful” and result in tearfulness, nightmares, recurrence of symptoms,
regression, relationship problems, fear, worrying, panic, sadness, pain, and other forms of anxiety and distress.

Collateral Data: Dr. Lillian Solah, internist at Local Family Health Clinic, described Ms. Amantha as a
timid woman who attends appointments only when it is necessary, and who expressed anxiety and fearfulness
when the topic of her life in Kenya was first broached. When Dr. Solah conducted an initial inquiry into Ms.
Amantha’s medical history, Ms. Amantha trembled as she provided information, even when the health care
information she provided did not reflect any traumatic circumstances. Dr. Solah observed that Ms. Amantha
was uncomfortable, anxious, and wary, and that she appeared to be traumatized. She said that in recent
appointments Ms. Amantha has been calmer, but that she remains avoidant of any questions about her past.
She will answer questions that are asked, but she does not volunteer information. Dr. Solah said that the
avoidance is not antagonistic, but appears to reflect Ms. Amantha’s difficulty discussing even the most
innocuous aspects of her history in Kenya. Ms. Amantha had no previous health records or narrative accounts
of health care visits concerning her time in Vermont. She did not see a doctor until her pregnancy. Dr. Solah
believes that Ms. Amantha meets current diagnostic criteria for Posttraumatic Stress Disorder (PTSD). She
prescribed anxiolytic medication, but she believes that Ms. Amantha rarely takes it, because she does not
request new prescriptions. Dr. Solah also has worked with Ms. Amantha to help her learn and implement a
variety of other coping methods. She said Ms. Amantha remains easily upset and overwhelmed at times, but is
benefiting from support. She added that Ms. Amantha still appears hypervigilant concerning the safety of her
children. In particular, she shows symptoms of panic and rapid heartbeat when the safety of her children is
discussed.
Ms. Martha Mee, of Local Mental Health Center, said that Ms. Amantha was referred to the clinic in late
2009 by a local center for immigrants after her husband encouraged her to seek help. She said that Ms.
Amantha has been reluctant to discuss her past in any group setting because it is too upsetting. She sought
therapy at the urging of her husband and after reading information that described its utility. She was
somewhat skeptical that it would be helpful to her, however, due to her belief that she might be too
traumatized to gain any therapeutic benefit. When she discussed her history in individual sessions, she
typically broke down and cried, sometimes through most of the session. Their sessions have focused on
current security, safety, and perceptions of safety, with less emphasis on the past because of its upsetting
nature. Ms. Mee said that Ms. Amantha is easily upset, has difficulty discussing the past, is concerned that
her children will suffer some form of trauma or death, and is worried that she will die and no one will be
available to care for her children. The account that Ms. Amantha provided to Ms. Mee is contained in the
attached documents from the clinic and is consistent with the information Ms. Amantha provided in my
session with her.

Documentation: There is no available documentation concerning Ms. Amantha’s personal experiences in

Kenya. Mr. Tadow obtained an affidavit from Father Matthew concerning Ms. Amantha’s travel with a group
of young adults from Kenya to Baltimore (see attached document). He verified that Ms. Amantha traveled to
the United States from Kenya on a student visa, that she remained with the group for several weeks, and that
she then fled in the nighttime to an unknown location. Father Matthew made attempts to locate her, without
success. He also verified the deaths of her family members and noted that she was taken into the charitable

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organization’s compound in Kenya for her safety and protection.
U.S. State Department documents confirm that President Daniel arap Moi was reelected in 1997, in the
country’s second general election since the restoration of multiparty politics in 1991; they also explain that
Moi is fromTribeTwo and that his rivals for election were from TribeOne. In and around 1997, the
agricultural sector supported 70% of total employment in Kenya. There were drought and famine in some
rural areas. The Kenya government’s overall human rights record was generally poor, and serious problems
remained in many areas; although there were some signs of improvement in a few areas, the situation
worsened in others. Police arbitrarily arrested and detained individuals. The government limited free speech
and freedom of the press. The government engaged in harassment and intimidation. Violence and
discrimination against women and abuse of children were serious problems. Additionally, female genital
mutilation remained widespread, affecting as many as 50% of females nationwide. Child prostitution
increased as economic conditions deteriorated, and child labor was endemic.
Most relevant here, the documents show that violence by government officials, mobs, and
nongovernmental armed groups resulted in many deaths. Presidential security forces committed extrajudicial
killings, torture, and beatings of TribeOne people throughout the country. They used excessive force, rape,
and other abuses. Mob violence contributed to 139 documented deaths in 1998 and even more deaths in
1999. Mob violence included lynching, beating, burning, robbery, cattle rustling, and other forms of terror.
Violence against women was serious and widespread. There were 903 rapes cited in official governmental
statistics, but it is likely that rapes were underreported. Rates of prosecution of rape were low.

Observations on Current Mental State: Ms. Amantha was tearful as she described her experiences in Kenya.
She had a look of extreme dread on her face as she described her childhood and the deaths of her brother and
her parents. She trembled as she spoke at length about the pain her mother must have suffered before she
died. Ms. Amantha spoke about her own death as though it were imminent. She reiterated that she had
purchased life insurance because of a sense that her early death is imminent and inevitable. She hoped her
children would understand that she tried to provide for them as best she could.
Ms. Amantha said she would prefer to die than return to Kenya, but she said she is not actively suicidal.
About the possibility of return, Ms. Amantha stated:

“Working is like my therapy to cover it [her pain and distress]. I try to cover it. I never told anybody. I
want to prove I can make it in life. I don’t have a place to go. For the well-being of my kids, I am worried if
I go. It would be like saying we are leaving our warm house and we are going to stay in a dump. If I go for
real, it will be like going to somewhere, to an end, and you can’t see beyond it. It is unknown and
indescribable. It would be bad because it would be so stressing and so depressing.”

Although Ms. Amantha’s children are not parties to this case due to their U.S. Citizenship, Ms. Amantha
could not imagine being separated from them if she were made to return to her country of origin. She fears for
their safety if she were to take them with her. She said, “Maybe my children would never go back to school.
How would they adjust? For them, it would be a new life. For me, it would be the end of their lives.” She
expressed fear that her children would be mutilated, raped, or killed.

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Interpretation: Ms. Amantha, orphaned and homeless at age 21, meets current diagnostic criteria for PTSD.
She also suffers from muscle tension and from mental and physical fatigue (see the attached records from her
internist). The index events (triggering traumas) for PTSD were the violent murders of her brother and
parents, and she exhibits the symptoms associated with PTSD. She experiences recurrent horror, intense fear,
and helplessness. She has recurrent and intrusive distressing recollections of the event and recurrent
distressing dreams of the event, and reports fear of reliving the event or experiencing a similar event. She also
reports depersonalization (the sense that one is not part of one’s own bodily experience), physiological
reactivity to loud noises and screaming, avoidance of thoughts of and conversations about the trauma,
avoidance of loud settings, diminished interest in leisure time activities that involve noise, difficulty forming
attachments in friendships and in her marriage, a sense of a foreshortened future, irritability, hypervigilance,
and exaggerated startle response.
If Ms. Amantha remained in the United States, she could continue her recovery from her PTSD and better
support herself and her children. She remains in fear of being murdered should she return to Kenya. She
reported that the leader of the Kenyan nation is a member of the tribe of individuals whose representatives
murdered her brother and parents, and State Department information confirms the President’s tribal
membership. Even if things were to improve in Kenya, Ms. Amantha’s subjective sense is that she and her
children would never be safe in that environment. It is likely that she would be in a constant state of alarm and
emotional hyperarousal if she returned to Kenya. It is likely that her symptoms would be exacerbated
significantly, and that she would function poorly in the role of parent because of significant deterioration.
Furthermore, her children speak only English, and they have been raised as United States citizens in the
culture, norms, social conventions, and educational system of the United States. She fears they would make a
poor adaptation to Kenya. She does not know how she would protect them or help them adapt if she and her
children were to return to Kenya. She also cannot imagine leaving them behind were she to be ordered to
return to Kenya.
Were she allowed to remain in the United States, Ms. Amantha would probably continue to struggle with
PTSD, but the condition would affect her less severely, and it is likely that she would gradually recover. She is
showing gradual improvements. She has used work to cope; she has managed to forge a relationship with her
husband, despite some conflict between them due to her symptoms; and she functions as a member of the
community (for example, she works and takes care of her children). Although she has few friendships, she is
beginning to trust some of her neighbors. She provides a safe home, nutrition, and education for her children.
She is gradually learning to trust other adults, and she has found psychological assistance through therapy and
through reading continuing education textbooks on the topics of psychology and individual well-being.
Signed under the pains and penalties of perjury.
Elle Cellers, Ph.D.
Licensed Psychologist

(b) Discussion

As noted in § 13.05(b)(3), aliens can obtain asylum in the United States if they can show that they are
“refugees” by proving that removal would lead to persecution based on race, religion, nationality, membership
in a particular social group, or political opinion. The subject of this report might also have been able to avoid

844
removal on the grounds of extreme hardship to her children and family [see § 13.05(a)]. The report provides
information that can address both of these points, while avoiding ultimate conclusions regarding the issues of
either persecution or extreme hardship.
This report also demonstrates the difficulties in conducting evaluations in the immigration context.
Collateral sources are hard to obtain. In this case, the evaluator had to reach overseas to other members of the
family and consult government records to obtain corroboration of events in Kenya. Additionally, sociocultural
and English language proficiency considerations can restrict the techniques available in these examinations,
because many of the measures that might be helpful have not been translated into other languages or normed
on the relevant cultures. Although the subject of this report had been in the United States for some years, the
quotes from her interview indicate that she still struggled with the language in a way that might affect her
capacity to respond to assessment measure questions; furthermore, the lack of supplementary norms for Kenya
prevented use of measures that might help in the evaluation of Ms. Amantha for PTSD. More broadly,
structured interview tools may fail to capture all of the variables that are relevant in these evaluations, which
often focus on experiences that are well outside the realm of the ordinary. Finally, as the report suggests, for
people with Ms. Amantha’s background, formal assessments and treatment for psychological issues are
unusual and perhaps even resisted, another obstacle to obtaining the needed information.
Despite these problems, the report provides a diagnosis. Should it do so? On the one hand, the diagnosis
lends credibility to the hardship claim and to the claim that persecution on the basis of membership in a group
actually occurred. On the other, for reasons just suggested, its validity could be questioned. Arguably, the
most important aspect of this report is its account of the facts. Of course, this account could also be provided
by the examinee and the attorney. But a report like this helps organize the material for the lawyer and for the
court in a way that might not come out coherently in a courtroom proceeding.
As indicated in § 13.05(a), aliens subject to immigration proceedings are not entitled to state-paid
attorneys. In this case, the lawyer who submitted the referral was working for a small fee and requested that
the evaluator do likewise. There is no funding base for these evaluations, and applicants for asylum must raise
their own resources and hire their own lawyers in most situations. Many such cases are handled by pro bono
clinics, in which both lawyers and evaluators donate their time.

19.12. TRANSFER TO ADULT COURT [CHAPTER 14]

(a) Todd Merton Report

NAME: Todd Merton

DATES OF EVALUATION: June 29 and 30, 2012; July 1, 2012; October 7, 2012
D.O.B.: August 5, 1996
AGE: 15
DATE OF REPORT: December 1, 2012
EDUCATION: Seventh grade

IDENTIFYING INFORMATION/REFERRAL QUESTION/NOTIFICATION: Todd Merton is a

15-year-old referred for a psychological evaluation by his attorney, Deborah Jenkins. Ms. Jenkins requested

845
that this writer conduct a psychological evaluation of Todd to assess his current emotional and behavioral
functioning, with a focus on factors relevant to whether he should be transferred from juvenile court to adult
court on charges of aggravated battery and attempted murder arising from an alleged assault on his uncle with
a baseball bat. According to Ms. Jenkins, specific psychological factors that will be considered by the court in
reaching a transfer decision include Todd’s overall maturity, his risk for future offending, and his need for and
amenability to treatment, so these factors are addressed in this report.
Todd was interviewed and tested on June 29 and 30, 2012; July 1, 2012; and October 7, 2012. Prior to the
initial interview, the nature and purpose of the evaluation were explained to Todd (in the presence of his
attorney). He demonstrated a basic understanding of this notification and agreed to participate in the
evaluation.

SOURCES OF INFORMATION: The following sources of information were relied upon in conducting
this evaluation:

Clinical interviews with Todd Merton (06/29/12, 2.5 hours; 06/30/12, 2.25 hours; 07/01/12, 2.25 hours;
10/07/12, 3.0 hours).
Administration of Wechsler Intelligence Scale for Children—Fourth Edition (06/29/12).
Administration of Wide Range Achievement Test–4 (06/29/12).
Administration of Mini-Mental State Examination (06/29/12).
Administration of Behavior Rating Inventory of Executive Functioning (06/29/12).
Administration of Structured Assessment for Violence Risk in Youth (06/29/12).
Administration of Youth Level of Service/Case Management Inventory (06/29/12).
Review of March 25, 2010 family and social history (06/28/12).
Review of March 8, 2011 Multidisciplinary Team Meeting minutes (06/28/12).
Review of April 5, 2011 milieu report (06/28/12).
Review of April 5, 2011 psychological evaluation (06/28/12).
Review of April 15, 2011 diagnostic evaluation (06/28/12).
Review of initial diagnostic classroom report (06/28/12).
Review of transfer hearing motion (06/30/12).
Review of motion for guardian ad litem (06/30/12).
Review of delinquency history and arrest summaries (06/28/12).
Review of truancy records (06/28/12).
Review of arrest report and supporting documentation (06/28/12).

CURRENT CLINICAL FUNCTIONING/BEHAVIORAL OBSERVATIONS: Todd Merton is a

slightly built 15-year-old white male who appears somewhat younger than his stated age. He was interviewed
on three separate occasions in the detention center (once in the presence of his attorney), and once in the
courthouse just prior to a court appearance (in the presence of his attorney and co-counsel). At each interview
he wore detention-center-issued clothing, was well groomed, and was neatly dressed.
Eliciting information from Todd was sometimes difficult. During his first two interviews, Todd rarely
maintained eye contact with the interviewer, volunteered little information, and kept his responses brief,

846
despite being told by this writer and his attorneys that he needed to be open and candid. A later conversation
with his attorney revealed that Todd had indicated some discomfort with this writer, so he was interviewed in
his attorney’s presence during the third and fourth contacts, during which he was somewhat more
forthcoming. Otherwise, Todd communicated satisfactorily. Although Todd occasionally exhibited a mild
stutter (especially when the topic was anxiety-provoking), he could easily be understood. At times, he
appeared to have difficulty comprehending questions presented to him, but he readily indicated such difficulty
and was generally able to answer questions when they were reworded.
Todd showed no signs of significant mental disorder. When interviewed, Todd was oriented to time, place,
and person (i.e., he knew when it was, where he was, and who he was). Todd’s speech was typically logical and
goal-directed, and there were no indications that the form or logic of his thought process was impaired.
Similarly, Todd did not report any unusual ideas or beliefs indicative of delusional thinking. He also did not
report other symptoms of major mental illness (i.e., auditory or visual hallucinations). Todd’s attention,
concentration, and memory for remote and recent events were considered to be only minimally impaired. He
displayed a limited range of emotion, but his expressed emotion was consistent with and appropriate to his
speech content. At times, especially when discussing offense-related events and possible sanctions, Todd
would cry. Todd stated that he was being prescribed medications for sleep and anxiety (the symptoms for
which are described more fully below), but that he was on no other medications, psychiatric or otherwise.
In order to assess Todd’s current functioning and adjustment, he was administered a number of
psychological tests. Two of these focused primarily on intellectual functioning. His score on the Wechsler
Intelligence Scale for Children—Fourth Edition (WISC-IV) indicated that he falls in the borderline range of
intellectual functioning, which is consistent with his scores on intellectual testing completed between 2002
and 2007 (which were summarized in an April 2011 psychological evaluation conducted after an earlier
offense). His WISC-IV performance also indicated equally developed verbal abilities and nonverbal, visual–
motor abilities, with specific limitations in connection with social judgment, attention to detail, and problem
solving. Todd’s performance on the Wide Range Achievement Test–4 (WRAT-4), a screening measure of
academic achievement and skills, was consistent with these results. His performance on the WRAT-4
Reading subtest (a measure of word recognition) indicated that he is functioning at the fourth-grade level,
while his performance on the Spelling and Arithmetic subtests indicated skills at the fifth-grade level. These
test results are also generally consistent with psychological test results administered during the course of the
April 2011 psychological evaluation.
Two other tests measured more general functioning capability. Todd’s performance on the Mini-Mental
State Examination suggested no significant impairment with respect to orientation, concentration, language
comprehension, or communication skills. However, a somewhat different picture emerged from his
performance on the Behavior Rating Inventory of Executive Function (BRIEF), a self-report measure that
assesses executive functions (processes that control cognitive, emotional, and behavioral functions, particularly
during problem solving). His performance on the BRIEF indicated significant limitations (when compared to
same-age peers) with respect to modulating/controlling his emotions, demonstrating flexibility in attention
and problem solving, anticipating future events, understanding interactions and communications, setting
goals, and planning responses. Response style scales on the BRIEF indicate that Todd responded to the items
in a consistent manner and made no attempt to manipulate the results.

847
RELEVANT HISTORY: All of the following information was obtained from Todd, except where
indicated.

Social and Family History: Todd reported not knowing where he was born, but indicated that, other than
when his family moved to Georgia for a brief period of time when he was 10 or 11, he has spent the majority
of his life in Jacksonville, Florida. At the time of his arrest, he was living with his grandfather and
grandmother, whom he described as his legal guardians, and with whom he had been living since the age of
12.
Todd has two half-sisters (Opal, age 13, and Tina, age 7), a full brother (Ricky, age 18), and one half-
brother (Brandon, age 33). He grew up with Ricky, his half-sisters, his mother, and his stepfather (Richard
Simpkins). Todd reported positive relationships with his brother and half-sisters, and less contact with his
half-brother. He routinely interacted with his brother and believes his half-sisters looked up to him.
Todd says he is not sure when or why his biological parents divorced, but that he has no memory of them
living together. He grew up believing that his stepfather was his biological father. Todd estimated that he first
met his biological father, whom his mother called a “drunk,” when he was 11 or 12, and that he has had
contact with his father on no more than 10 or 15 occasions, typically on holidays.
Todd grew up calling his stepfather “Dad” and his biological mother (Ernestine Simpkins) “Mom.” When
living with his mother and stepfather, he shared a bedroom with his brother, and his sisters shared a room as
well. His stepfather supported the family by working as an auto mechanic (in both Florida and Georgia) while
his mother remained at home.
When asked to describe his mother, Todd responded, “I loved her for a while, and then my stepfather told
her it was me and Ricky or him.” In response to further inquiry, Todd indicated that two years ago his
stepfather had forced his mother to choose between him (the stepfather) and Todd and his brother. As a
result, according to Todd, he and his brother were forced to leave the family home, at which point he began
living with his grandmother. In response to focused questioning, Todd acknowledged being upset with his
mother’s actions, but appeared to downplay the significance of her choice and its effects on him. Similarly,
while he at first stated that his mother had never abused him, Todd eventually admitted that she sometimes
referred to him as “dumbass” (and his denial of abuse appears to be incorrect, as indicated below).
When asked about his stepfather, Todd responded that although he and his brother typically did not get
along with him, he had “no clue” why the stepfather had issued the ultimatum about their leaving. Since that
time, he and his brother have had minimal contact with their mother and stepfather, and the contact they
have had has not been positive (e.g., Todd reported that at times his mother and stepfather have thrown beer
bottles at them and called them names). When queried about his current feelings about his mother, Todd
replied, “She didn’t care, so I decided to be the same way . . . that’s it.” Since his arrest, he has had no contact
with his mother or stepfather. A family and social history completed on March 25, 2010, at the Duval County
Juvenile Detention Center in connection with a previous offense provides collateral information that
corroborates Todd’s account of his abandonment by his mother and stepfather and his move to live with his
grandparents.
Although at times during his discussions with this writer Todd reported that he never got along with his
stepfather, at other times he described an occasionally positive relationship, including involvement in activities

848
of mutual interest such as building go-carts and repairing automobiles. However, Todd consistently stated
that his stepfather changed over time, becoming more verbally abusive to him and his brother. The extent of
physical abuse by the stepfather is unclear. Todd reported never being subjected to corporal punishment, and
indicated that he was typically sanctioned by being sent to his room. But he also reported being physically
assaulted by his stepfather on one occasion, and noted that he and his brother were sometimes hit with a belt
or switch. His half-sisters, on the other hand, were not subjected to either physical or verbal abuse, according
to Todd.
In contrast, Todd spoke of his grandparents only in positive terms and reported that he was never subjected
to corporal punishment at their hands. He described his grandmother as “bed-fastened” (appearing to mean
bedridden), which he attributed to strokes. The March 25, 2010 report noted above states that his
grandparents supervised him minimally and acknowledged problems with his behavior.
Todd was also asked about his relationship with his uncle, Alvin Geary, the alleged victim in this case.
Todd reported knowing Mr. Geary, who is only 10 years his senior, for all of his life. He stated that he and
his uncle frequently argued, and that Mr. Geary often taunted him (e.g., referring to him as “dumbass” or
“queer”). Although he was noticeably uncomfortable discussing the topic, Todd also estimated that he was
sexually abused by Mr. Geary four or five times during the 10 months preceding his arrest. Todd reported
that, using a knife to threaten him, his uncle forced him to perform oral sex and masturbated while they were
alone in his grandparents’ home. According to Todd, when he said he would inform the authorities or others
of these occurrences, his uncle threatened to harm him. Despite these threats, Todd said he did confide his
abuse to his cousin and her boyfriend (Jenna and Nick), but directed them not to tell others. In interviews
completed by detectives, Jenna and Nick reported that Todd had once confided to them that his uncle was
“messing” with him, but that he had refused to discuss this issue with them any further in response to their
inquiries.
Todd reported that these incidents with his uncle led him to feel embarrassment, shame, and anger, and to
question his sexuality and sexual orientation. He was unsure of what he could do to stop the encounters, given
his fear of his uncle. Todd did report, however, that he sometimes left his grandparents’ home after they left
in order to avoid interactions with his uncle.

Educational History: At the time of his arrest, Todd was attending the eighth grade at Waters Middle
School. He estimated that he had been held back a grade two or three times, which he explained by stating, “I
wasn’t smart, I guess.” Todd stated that he had a history of placement in special education classes since he was
“young . . . since I was real little,” and that he typically obtained B’s and C’s. He said his best subjects were
science and social studies, while his most challenging were mathematics and reading.
Although he initially described positive relationships with his peers at school (with whom he described
engaging in bike riding, swimming, hiking, and football), in response to further inquiry he acknowledged that
he had been subjected to criticism and ridicule, which sometimes led to fighting. Todd explained that as a
result of this behavior, he had been suspended six or seven times, beginning in the fifth grade, although he has
never been expelled.
A review of school records indicated significant absences for the 2010–11 school year, along with a total of
five suspensions for assaulting another student and disrespectful behavior. Review of a March 8, 2011, social

849
summary indicated that during the 2010–11 school term, Todd was considered to be habitually truant from
school; this behavior resulted in an adjudication of delinquency.

Substance Use and Mental Health History: Todd reported that he used alcohol (beer) infrequently. However,
he also indicated that he had first used marijuana when he was 6 years old (after finding marijuana that
belonged to his mother and stepfather), and began using it regularly at the age of 12 or 13, only stopping
when he was arrested. Additionally, at 15 he began using a variety of prescription medications on a regular
basis, including Xanax and OxyContin. He also reported using morphine eight or nine times.
Todd denied any history of mental health treatment or contact with mental health professionals. He
acknowledged, however, periods of depression lasting from a few days to a few weeks. When asked to describe
his depression, Todd reported experiencing low self-esteem, feelings of pessimism, diminished energy, sleep
difficulties, and isolation. Todd initially denied ever having any thoughts of harming himself, but upon further
questioning, he acknowledged one episode during which he challenged an individual to shoot him during the
course of an altercation. He insisted that he did not want to die, however, and he specifically denied ever
having thoughts of harming himself.
An April 5, 2011, treatment summary described Todd as adjusting well during the course of his stay at the
Duval County Juvenile Detention Center (where, as noted above and described more fully below, he was
detained for a previous offense). Todd was described by facility staff as grieving for the loss of his mother
(subsequent to her abandoning him) and his grandmother (subsequent to her strokes). Other issues of
significance noted by staff included Todd’s ongoing substance abuse, inappropriate behaviors at school,
limited intellectual functioning, ridicule by peers (with associated anger and aggression), and symptoms of
anxiety and depression. Placement in a group home setting, accompanied by special education programming
and counseling focused on substance abuse and family issues, was recommended.
In a psychological evaluation completed at the Duval County Juvenile Detention Center on April 5, 2011,
Todd was described as suffering from Depressive Disorder Not Otherwise Specified (NOS), Anxiety Disorder
NOS, Cannabis Dependence, Parent–Child Relationship Problems, Neglect of Child, and Borderline
Intellectual Functioning—as defined by the Diagnostic and Statistical Manual of Mental Disorders, fourth
edition (DSM-IV). Physical health problems of significance that were noted included seasonal allergies, vision
problems, hearing problems, cataracts with associated surgeries, and head trauma.
Todd reported during his interviews with this writer that he was experiencing a number of symptoms
associated with a stress disorder, including nightmares, flashbacks, and intrusive thoughts regarding the sexual
abuse, as well as a hyperstartle reflex and a feeling of being on edge. It was partly in response to these
symptoms that he used antianxiety medication (Xanax) while in the community.

Medical History: Todd stated that he has had cataracts, resulting in multiple surgeries and limited vision that
requires correction with glasses. Todd also reported head injuries at 12 (as a result of being hit with brass
knuckles) and 13 (when he was hit with a baseball bat), neither of which resulted in loss of consciousness.

Juvenile Justice History: Todd reported that his history of contact with the juvenile justice system was limited
to two arrests: one for possession of marijuana in April 2011, and a concealed weapon, and the second for the
current offense. Records provided by the public defender corroborate that he was adjudicated delinquent for

850
possession of marijuana and a weapon (a buck knife) on May 13, 2011. However, these documents also
describe two other incidents: a delinquency adjudication for assault on an acquaintance, Ervin Green, in
March 2010, and an assault on a cousin outside his grandparents’ residence on June 13, 2012.

DIAGNOSTIC IMPRESSION:

Axis I:
Dysthymic Disorder
Posttraumatic Stress Disorder
Polysubstance Dependence, In Remission, In a Controlled Environment
Physical Abuse of Child
Sexual Abuse of Child
Neglect of Child
Axis II: Borderline Intellectual Functioning

OFFICIAL ACCOUNTS OF THE ALLEGED OFFENSES AND SURROUNDING

CIRCUMSTANCES: The most recent arrest report states that, when interrogated by arresting officers,
Todd stated that on the morning of his arrest, he had been arguing with his uncle (who was intoxicated) in his
grandparents’ home about access to marijuana. Todd stated that he went outside to avoid any further
altercation with his uncle, and directed his uncle to leave and “cool off” because he wanted to “let the matter
drop.” Todd then stated that his uncle, as he left the house, charged Todd—at which point Todd grabbed a
baseball bat that was lying on the porch and hit his uncle in the head “like three or four times” before
dropping the bat and fleeing. The arrest report indicates that Todd returned to his residence later in the day
and surrendered to officers without incident while stating, “I didn’t do anything wrong—aren’t you gonna
arrest him?” When interrogated by detectives later that day, records indicate, Todd informed the detectives
that his uncle had forced him to engage in sexual contact previously and had come to his house seeking further
sexual contact. Todd, in response, had informed him that he would no longer allow him to force him to have
sex, and that he intended to notify law enforcement of his behavior.
Reports completed by law enforcement officers indicate that the alleged victim (Mr. Geary) reported that
Todd assaulted him when, during the course of an argument over marijuana, Mr. Geary threatened to call
Todd’s probation officer and notify him of his whereabouts. Mr. Geary stated that as he was walking down
the porch steps, Todd picked up a bat and hit him in the back of the head while yelling, “I’ll kill you,
motherfucker.” Mr. Geary reported remembering that he fell to the ground and was hit once more, after
which he lost consciousness. In interviews conducted and summarized by detectives, Mr. Geary denied any
history of sexual contact with Todd. When asked to explain why his nephew, prior to the assault, had
suggested to third parties that he had been abused, Mr. Geary stated that those making these allegations were
long-standing “family enemies” of his who were lying and trying to provide Todd with an “abuse excuse.”

DISPOSITIONAL ISSUES:

Maturity: Review of records and psychological testing indicates that, compared to same-age peers, Todd
clearly experiences cognitive limitations that affect his ability to assess and understand social situations and to

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solve problems with which he is faced. This deficit has manifested itself in poor academic performance and, at
times, strained peer relationships.

Amenability to Treatment: Todd’s limited problem-solving skills may provide some basis for understanding
his ongoing problems with substance abuse, which to date he has done nothing about. Today, however, Todd
admits that his drug use is a problem, and expresses a desire to receive treatment for it. He also states that he
wants to address his academic problems. Although he initially offered his belief that issues of past
victimization need not be addressed in treatment (probably as a result of the embarrassment and discomfort he
experiences in talking about those events), Todd indicated his willingness to do so if it was considered
necessary.

Risk: When compared to the general population, Todd is at increased risk for violence. However, he is
considered to be a moderate risk for violent and nonviolent delinquent/criminal behavior in the future, based
on a structured assessment incorporating the Structured Assessment of Violence Risk in Youth and the Youth
Level of Service/Case Management Inventory. Risk factors for continuing violent behavior that are present in
this case include the following:

A history of caregivers’ abuse and neglect.

Early caregiver disruption.
Substance abuse.
Emotional and behavioral problems.
Problematic school achievement and low commitment to school.
Poor parental management.
Poor coping.
Lack of social support.
Community disorganization.

Risk factors that are absent in this case include the following:

Extensive history of violent and nonviolent delinquent behavior.

Early history of violence.
History of self-injurious behavior.
History of instrumental violence.
Emotional callousness.
Exposure to violence in the home.
Peer delinquency.
Parental criminality.
Negative attitudes toward intervention.
Poor treatment compliance.
Risk taking and impulsivity.
Anger management problems.
Attention-deficit/hyperactivity difficulties.

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Treatment Recommendations: Regardless of his disposition and placement, Todd should receive the
following treatments and interventions:

1. Educational and vocational programming, the goal of which is to ensure that Todd has basic academic
(reading, writing, computation) and vocational skills as a way of facilitating independent living upon his
eventual return to the community.
2. Cognitive-behavioral psychotherapy focused on (a) symptoms of depression, (b) history of abuse/neglect,
and (c) trauma-related symptoms, the overall goal of which is to provide Todd with strategies for
managing these symptoms.
3. Treatment focused on Todd’s history of substance abuse, the goal of which is to decrease the likelihood of
a recurrence of substance use upon Todd’s eventual return to the community.
4. Cognitive-behavioral treatment focused on increasing Todd’s problem-solving skills and ability to assess
and understand situations with which he is faced.

In addition, upon his eventual release to the community, it will be important that Todd receives social and
emotional support and minimal access to delinquent peers. It is not clear that these conditions can be provided
at his grandparents’ without their undergoing some counseling on this subject.
If you have any questions about this evaluation, please do not hesitate to contact me.
Sammie Smith, Ph.D.
Licensed Psychologist

(b) Discussion

In this case, the legal issue is whether the juvenile should be transferred or “waived” to adult court [see §§
14.03(a)(2), 14.04(b)]. Note that at the outset of the report, the examiner describes the psychological factors
that the attorney has identified as relevant to the transfer/waiver decision (i.e., amenability to treatment, risk
for future offending, and “maturity”), thus making clear the parameters of the evaluation. Note further that
although the examiner reaches some conclusions about these issues at the end of the report, he refrains from
offering an opinion on the ultimate legal issue (i.e., whether the juvenile should be tried in juvenile or criminal
court). Indeed, such an opinion might meet with considerable resistance from the court, which is likely to see
this issue solely as a legal one (in interesting contrast to the typical court reaction to ultimate-issue testimony
in many other contexts, such as competence to proceed).
Note that this report is very comprehensive in its discussion of family, educational, and medical history;
social and sexual relationships; and previous treatment evaluations. This level of detail is necessary, because
the attorney has asked the examiner to address a wide-ranging set of questions that require a careful
reconstruction of the examinee’s life in a number of areas. Although the number of tests administered might
seem unnecessary because of previous testing, intellectual functioning and problem-solving skills at the present
time are important in determining whether Todd is amenable to treatment, and if so, what programs he
should undergo. Note also that to corroborate Todd’s account, the examiner makes significant use of past
records, which the attorney apparently provided and which should be demanded by any clinician doing this
type of evaluation. However, the examiner might also have talked to the grandparents and perhaps other third

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parties as well, to get more information about Todd’s assaultive history and other behavior as a way of
determining potential support mechanisms.
With respect to the offense, the examiner reports and contrasts the official account, the examinee’s
account, and his uncle’s account. The examiner will rarely be able to say for certain what happened during
such events, and when an opinion rests too heavily on a particular version of them, it may readily be
discredited if the “facts” prove to be significantly different. Here, whether the uncle forced sexual contact on
the examinee is a question of evident importance, but the examiner reaches no conclusion as to its occurrence;
instead, he notes the different versions offered and the interview with two parties in whom the examinee
confided. Also note that the examiner limits his discussion of the examinee’s account of the alleged offense to
that which the teenager offered to arresting officers—presumably given concerns about revealing potentially
self-incriminating information.
The examiner also explicitly lays out those factors that point toward future risk and those factors that do
not. (In this regard, further anamnestic evaluation of Todd’s other assaults would have been useful.) While he
notes that the potential for future risk is “moderate,” he takes care to avoid making an absolute prediction in
either direction on this core question. Similarly, the examiner makes specific treatment recommendations that
should help the court decide Todd’s disposition, again while avoiding the issue of whether Todd should be
waived to adult court.

19.13. DISPOSITIONAL REVIEW [CHAPTER 15]

(a) George and Gerald Jones Report

NAME: George and Gerald Jones

D.O.B.: George—December 5, 2006; Gerald—October 20, 2010
MOTHER: Suzanne Jones
FOSTER PARENTS: George—David and Jane Williams; Gerald—Molly Davidson

SOURCES OF INFORMATION:

1. Referral letter and notes from Sue Jacobson, Department of Social Services; predispositional report from
Ms. Jacobson, dated August 1, 2012.
2. Records regarding Ms. Jones from North State Hospital (NSH) (including admission and discharge
summaries).
3. Report of evaluation of Ms. Jones by Jack Henderson, M.D., on August 30, 2012.
4. Report of evaluation of Ms. Jones by James Johnson, Ph.D., on October 31, 2012.
5. Letter regarding Ms. Jones from Marian Disney, R.N., Community Mental Health Center (CMHC) of
Johnstone County, dated May 1, 2013; phone conversation with Ms. Disney on May 18, 2013.
6. Intake evaluation report by Susan Hilton, M.S.W., CMHC of Johnstone County, dated January 10,
2008.
7. Phone conversation with Lynn Nelson, Broadview School (George’s teacher), March 1, 2013, and face-
to-face conversation, April 5, 2013.

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 8. Notes on visits between Ms. Jones and her children by Jeannette Sterling, December 30, 2012, through
April 10, 2013; conversation with Ms. Sterling on March 15, 2013.
9. Interviews with Ms. Jones on March 1, May 1, and May 3, 2013.
10. Observation of Ms. Jones with George and Gerald on March 20, 2013.
11. Interview with Jane and David Williams on March 15, 2013.
12. Interview with George on March 15, 2013.
13. Classroom observation of George on May 5, 2013.
14. Interview with Molly Davidson on March 20, 2013.
15. Play interview with Gerald on March 20, 2013.

Records were requested from Stone Ridge Workshop at NSH, where Ms. Jones is now employed, but they
have not been received.

REFERRAL: The Jones family, consisting of Suzanne (the mother) and George and Gerald (the children),
was referred for evaluation by Sue Jacobson, a Department of Social Services caseworker. Suzanne Jones, age
26, has a history of hospitalization at NSH with a diagnosis of schizophrenia, paranoid type. At the time of
the first hospitalization (2008), George was placed in foster care for about four months. He reentered foster
care in August 2009, and he returned to his mother about two months later. After Ms. Jones became pregnant
with Gerald in February 2010, she was unable to take her psychotropic medication, and her mental health
deteriorated. After several instances of reported abuse, George was returned to foster care in June 2010. A few
days later Ms. Jones was readmitted to NSH. The Williams home, where George has lived since July 2012, is
his sixth foster home. Gerald was born in October 2010 while Ms. Jones was in NSH. He was immediately
placed in foster care with Molly Davidson, with whom he has lived continuously.
Ms. Jones’s visits with the children have been supervised under court order since an incident in spring 2012
when she experienced auditory hallucinations (i.e., hearing voices that were not present), lost control, and
destroyed some property during a visit with George. She now has visits with George alone once a week and
with George and Gerald together once a week. These visits are supervised by a Social Services worker.
The present evaluation is intended to assist Social Services in developing a permanent plan for the Jones
children. The evaluation was ordered by Johnstone County Separate Juvenile Court in August 2012.
According to Ms. Jacobson, the court sought assistance as to the probable effect of Ms. Jones’s mental
disorder on her ability to function as a parent, and the effect of Ms. Jones herself on the mental health of the
children. Ms. Jacobson also requested an opinion as to George’s needs for treatment or preventive services. An
opinion was further sought as to the Williamses’ and Ms. Davidson’s attachment to George and Gerald,
respectively, and their ability to meet the children’s special needs in the future.

EVALUATION OF MS. JONES:

History: Ms. Jones reported that her mother died when she was about two years old. She never knew her
father. Following her mother’s death, she went to live with her uncle and aunt and their four children (all four
to ten years older than Ms. Jones). Ms. Jones’s uncle worked in a factory, and her aunt, who died when Ms.
Jones was 14, was a domestic worker. Ms. Jones reported that each of her cousins has made a satisfactory

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adjustment as an adult. She indicated that she sometimes thinks she is an embarrassment to the family
because of her history of mental disorder. Sean, age 36, is married and owns a small business. Jennie, age 34, is
married and living in Georgia. Kathryn, who is about age 32, is recently divorced and a secretary. Joan, age 30,
is living with a dentist, and she owns a clothing shop. Ms. Jones has four older natural siblings, who live
around the country, and one younger sister, who was adopted and whom she does not know. Ms. Jones was
unable or unwilling to describe her childhood in much detail, but she said it was unremarkable.
Before dropping out of school, Ms. Jones obtained a tenth-grade education. She then went to live with a
sister in Cleveland. She worked briefly as a secretary at a large company before becoming an “exotic dancer” at
about age 19. The latter occupation was apparently embarrassing to Ms. Jones, and she declined to discuss it
except to say that the auditory hallucinations she experienced in the past sometimes consisted of voices
making accusations about her conduct as a dancer. Apparently Ms. Jones began to become quite paranoid
during her last months in Cleveland, and she obtained some mental health care there.
Ms. Jones met her first husband and the father of both boys, Elton Jones, in 2006, when she left Cleveland
and came to Johnstone County. When she was not in the hospital, she lived with him until 2010, when
Gerald was born and he sought a divorce. He has since disappeared. Ms. Jones was then married to John
Morton in June 2012. This marriage was also short-lived, however, and the divorce is currently being
finalized. Ms. Jones had known Mr. Morton for about two years prior to their marriage. She said that they
separated because of differences in religious beliefs and Mr. Morton’s unreliability (drinking and
unemployment). Mr. Morton has no contact with the children and pays no child support.
Ms. Jones was hospitalized at NSH from December 28, 2007, to January 5, 2008, and from June 5, 2010,
to May 7, 2011. Since then she has been attending a vocational rehabilitation program at Stone Ridge, and
therapy at CMHC of Johnstone County. Ms. Jones sees Marian Disney, R.N., every other week for therapy.
She is also involved in social activities at the CMHC, and her medications (Clozapine and Halcion) are
monitored there.
Ms. Disney reported that Ms. Jones has been reliable in keeping appointments and has been cooperative as
well. Since August 2012, Ms. Jones has reported no hallucinations, and Ms. Disney said that she has no
reason to dispute that report. Ms. Disney has worked with Ms. Jones in maintaining cognitive control over
her feelings and ideation. However, Ms. Disney is not sure that Ms. Jones would be able to apply these skills
when under stress (e.g., to know what to say to herself if she began to hear voices). She sometimes does not
remember things she has discussed with Ms. Disney and skills she has learned several sessions previously. Ms.
Disney indicated that Ms. Jones has reported no episodes of aggression or inappropriate temper outbursts in
recent months. However, she added that Ms. Jones has been under no particularly stressful situations other
than the current legal proceedings concerning her children. Ms. Jones gave a similar report of her recent
mental status and stress level during her interviews with me.
Ms. Disney indicated that her current concern about Ms. Jones is “her tendency to withdraw and isolate
herself.” This impression was corroborated by history in the current evaluation. Ms. Jones said that there is no
one inside or outside her family on whom she can really depend. However, she is closest to her cousin
Kathryn, and she is sometimes able to use her as a sounding board. According to Ms. Disney, Ms. Jones has
not joined an activity or group on her own, although she does participate in social activities and the CARE
parenting program at CMHC.

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 Ms. Jones reported that she is now seeking employment through Vocational Rehabilitation. She is looking
for a job as a custodian; in the meantime, she is considering doing volunteer work at the Department of
Veterans Affairs Hospital. At present, Ms. Jones is supported by Supplemental Security Income. She handles
all of her own financial affairs and daily living skills.

Mental Status: Ms. Jones was cooperative for the evaluation and reliable in keeping appointments. Ms. Jones’s
affect (expression of feelings) was generally flattened. Although she did show appropriate laughter at times,
her ability to show affect appeared limited. Her demeanor was marked by a blank stare typical in chronic
schizophrenia.
Ms. Jones’s ideation was very concrete, although not bizarre. She was unable to solve common proverbs.
She was not a very good historian, and she seemed to have some difficulty in remembering and describing her
experiences. Some of her lack of fluency was probably attributable to guardedness about the nature of the
evaluation, however. Ms. Jones gave no sign of attending to hallucinations (which she denied having
experienced in recent months), although she may have been somewhat distracted by inner experiences. Her
performance on digit span tests (five digits forward, three digits reversed) was about two standard deviations
below the mean (i.e., she attained a level surpassed by well over 95% of persons her age). Such deficits in
short-term memory are sometimes associated with difficulties in attention. Reports from Ms. Disney that Ms.
Jones has difficulty in retaining directions and lessons are consistent with such a picture as well.
Ms. Jones’s insight and judgment appeared somewhat improved over previous evaluations. For example,
she described her medication as designed to “stop me from hearing voices and having temper tantrums, help
me relax, and get a good night’s sleep,” and she recognized the need to take the medication on a regular basis.
However, she seemed to have little insight about the origins of her disorder or patterns in her behavior,
although she is aware that she has gotten out of control when she has experienced hallucinations. She
recognizes that she has not really been tested with respect to her ability to maintain control during
hallucinations, although she says that she knows what to do if they would recur (e.g., “hit a beanbag” if the
voices make her angry; “tell myself they’re not real—use rational thinking”).
As already noted, Ms. Jones reported few social relationships. She said that there had been “loneliness”
since her separation from Mr. Morton, but that she is “surviving.” In view of her avoidant style, her capacity
to form and maintain relationships may be limited.

Summary: Ms. Jones retains some of the symptoms of schizophrenia (e.g., social isolation and flattened
affect), but she does not appear to be actively paranoid at this point. She apparently has made slow but steady
progress over the past few months in her general mental status. Her insight and judgment have improved, but
her thinking remains very concrete.

EVALUATION OF GEORGE:

Interview: George, six years old, related appropriately and cooperatively. He did show some signs of anxiety
(e.g., nails bitten to the quick), and he was very aware of (although somewhat reluctant to talk about) the
instability of home life he has experienced. George said that the reason that he had been placed in foster care
was that his mother had thrown him against the wall. Although he said that he enjoyed visiting his mother,
he would prefer to live with someone else “just in case.” As might be expected, given the proportion of his life

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spent in foster care, George’s attachment to his mother is tenuous. When asked to draw a picture of his
family, he drew the Williamses. Similarly, he drew a picture of a home (the one in which he currently lives)
and pointed out where “Mommy” and “Daddy” (Rev. and Mrs. Williams) sleep. At the same time, though, he
does not seem very attached to the Williamses. He said that he would most like to live with Helen (a foster
mother from whose home George was removed because the foster father allegedly engaged in inappropriate
sexual contact with a foster daughter), and Social Services notes indicate that he frequently telephones Helen
during his visits to Ms. Jones.
Some of the content of George’s interview suggested that he may be preoccupied at times by concerns
about aggression and his vulnerability. For example, when asked what animal he would most like to be,
George replied that he would like to be an eagle, because “if somebody is going around killing animals, I could
be an eagle to fly so they couldn’t get me.” These suggestions are corroborated by home and school
observations indicating significant emotional disturbance. Rev. and Mrs. Williams reported that George has a
short attention span, often stares off into space, sleeps deeply and frequently (he actually fell asleep in the
waiting room while I was interviewing the Williamses), and has difficulty in shifting moods (e.g., when he
becomes angry, he stays angry for a prolonged period of time).
Lynne Nelson, George’s teacher, also noted his difficulty in shifting moods and, in particular, his marked
responses to frustration. Ms. Nelson said that he is also very sensitive to discipline; he becomes obstinate and
pouts after being corrected. She noted that George easily becomes angry, and then he becomes quite
aggressive at times and hits and pinches the other children, without showing remorse for having done so. He
also has a tendency to disrupt the class by being noisy and silly and refusing to do his work. Ms. Nelson added
that his misbehavior is especially marked after even a single day’s absence from school; he seems to have
difficulty when routines are disrupted. Ms. Nelson indicated that George seems to crave attention from adults,
and that he does best in one-to-one work—a tendency that was apparent during my classroom observation.
Ms. Nelson is sufficiently concerned about George that she has made a referral for school psychological
services.

Academic Achievement: George’s academic progress is mildly delayed (he is currently functioning at about a
beginning-of-first-grade level). He is in low-performing groups in both math and reading, although he has
begun making rapid progress in math, which he enjoys. Intellectual testing performed by school psychology
staff during the current school year indicates that George is functioning in the average range of intelligence,
with equally developed verbal and nonverbal, visual–motor abilities. In light of George’s below-average
schoolwork, these test results suggest that he is not working to his potential, perhaps because of interference
from emotional factors.

Summary and Recommendations: Although George does not show signs of severe psychological disorder, he
is clearly a troubled and perhaps somewhat troubling youngster. He appears to have substantial concern about
the instability in his life, and he has difficulty in managing his feelings, especially anger. I strongly recommend
his becoming involved in psychotherapy, both to help him to deal with the traumatic events he has
experienced and to give him skills in controlling his feelings. Such treatment would preferably be long-term,
to give him the possibility of exploring his feelings within a consistent relationship. My expectation is that it
would take a number of sessions before he would begin to feel secure enough in the relationship to make good

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use of it therapeutically. Cognitive-behavioral work aimed at giving George skills in dealing with anger and
increasing his attention span and tolerance for frustration would also be useful. In any case, some form of
intervention would be especially important if there is a change of residence or custody.

EVALUATION OF GERALD:

Interview: Gerald appeared to be a remarkably bright, inquisitive 28-month-old boy. His play with Molly
Davidson (his foster mother) and me was structured and imaginative. He was highly verbal for a two-year-old.
Gerald talked a great deal, and he did so in three-word sentences. With Ms. Davidson, he was very polite
(e.g., using “please” and “thank you” consistently), and his play was quite social for a child of his age. For
example, he wanted to make sure that there were dolls to go with cars and other toys (“[Where are the]
People, Mama?”). Ms. Davidson said that Gerald is close to his stepsister (an eight-year-old foster child
whom Ms. Davidson is adopting). He gets up to tell her good-bye every morning when she leaves for school,
and he plays violin with her sometimes. (Ms. Davidson has involved both children in Suzuki violin lessons.)
Gerald’s developmental milestones have generally been appropriate. He walked at 11 months. Toilet
training is just beginning.

Summary: Gerald is a bright two-year-old who shows appropriate cognitive and social development.

NATURE OF THE FOSTER HOMES:

The Williamses: Rev. and Mrs. Williams appear on first impression to be caring people. They have, for
example, endeavored to involve Ms. Jones in some of the activities of their church, and they have kept
communication open (e.g., permitting holiday visits and frequent phone calls). They also appear to have
reasonable sensitivity to George’s emotional needs. They are committed to long-term foster care, if necessary,
for George. However, they have not really discussed the possibility of adoption at some point, and they
perceive the best option as eventually returning George to his natural mother.
The Williamses are Pentecostalists, and they may have unnecessarily strict expectations for their children,
or at least expectations that may prove difficult to achieve. For example, they will not allow their children to
play with other children in the neighborhood because of the “bad mouths” of the neighbor children. They also
forbid dancing and rock music. No mention was made, however, of any conflicts with George concerning the
household rules per se.
At the same time that I met with the Williamses, I was just beginning my evaluation of George.
Consequently, I have not broached the possibility of his receiving psychological help with them. Assuming
that long-term care by the Williamses continues, Social Services workers might explore their willingness to
cooperate with a treatment program.

Ms. Davidson: Ms. Davidson is a single foster parent who apparently pays special attention to the intellectual
stimulation of her children. As noted earlier, she has enrolled the children in Suzuki lessons. She encourages
Gerald to watch Sesame Street and the like, but she denies access to TV cartoons because of the violence in
them. She does permit “classical cartoons” (e.g., library showings of animated versions of The Nutcracker),
however.
Ms. Davidson is a graduate of Peace College, and for several years she worked as a media specialist in

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Peace’s laboratory school. She has recently been a substitute teacher, and she is working on setting up a
preschool with some friends. She has obtained an elementary-school teaching job in St. Louis, and she will be
moving there in July. She would like to take Gerald with her, and indeed to adopt him.
Ms. Davidson’s mother, a widow who lives in St. Louis, is also in the process of adopting three foster
children, and she has taken care of foster children for some time. Ms. Davidson herself seemed to minimize
the realistic problems of being a single parent. However, she apparently has substantial social support at
present in church groups, and she will have the support of her family when she moves to Missouri.

RELATIONSHIP BETWEEN MS. JONES AND HER CHILDREN: On observation Ms. Jones seemed
generally to be appropriately involved with the children, although Social Services notes suggest that she may
be somewhat detached at times. During the play session, the children were, in her words, “hyperactive” and
often somewhat out of control. She was generally slow to respond. When she did respond, she was not very
effective. Gerald’s behavior presented a particular contrast to his behavior with Ms. Davidson. Although he
had frequently shown toys to his foster mother and talked with her, he seldom engaged in those behaviors
with Ms. Jones. He was also markedly less well behaved and polite, although the presence of a second child
may have contributed to his misbehavior. (Gerald’s identifying most of the toys as his own whenever George
wanted to play with something was the instigation of much of the observed behavior.)
Ms. Jones appears to be trying to be a good parent—something that can be difficult for a noncustodial
parent. According to the Williamses, she calls George about every other day. During the interviews, she
seemed at times to be asking for the “answers” about how to handle childrearing situations. At the same time,
though, her skills in problem solving as a parent need more development. When presented with a series of
hypothetical parenting problems/challenges, Ms. Jones’s answers, while typically not noticeably inappropriate,
could also be characterized as sparse. That is, she sometimes seemed “stuck” in figuring out ways of getting
from a problem to a successful resolution of the problem. It is likely that her concreteness of thought and
limited relationships have adversely affected her ability to empathize with the children in a situation in which
they are having difficulty.
Ms. Jones has made an effort to apply some of the childrearing concepts taught in the CARE program. For
example, she describes “time out” as a primary disciplinary tool, and she apparently uses the technique on
occasion during visits with the children (according to Social Services notes prepared by Ms. Sterling).
However, there is an impression reported in the notes and in conversation with Ms. Sterling that she uses the
technique somewhat arbitrarily, without explanation to the children and without clear understanding of the
concept. Ms. Sterling’s impression that Ms. Jones may not fully understand the application of time out was
corroborated during my own interviews with her. In response to one of the parenting vignettes provided to her
(which involved her response to catching George shoplifting cookies), Ms. Jones initially talked only about
how to get the cookies back to the grocery store. When pressed to identify the appropriate consequences for
George, she said, “The first time I’d just tell him. The second time he’d get a spanking. I don’t think he
should just go on time out for stealing. I don’t think he’d learn from it.” However, she had also said that time
out “always works.”
Ms. Jones said that she would prefer to regain custody of both children. However, she added that having
only one would be “okay.” If it came to that, she thinks that George would be the child for whom she could

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care better. Besides the fact that Gerald has always lived in foster care, he requires more care because he is
younger. Her first response was simply that George “helps me.” There may be some role reversal with him—a
tendency that has been commonly reported in clinical reports of abuse and neglect.
At the current time, Ms. Jones denied that her hallucinations have contained content about the children.
Although she was very reluctant to talk about the voices, she said that they made accusations about her having
been an exotic dancer (she refused to elaborate further) and her being unclean (e.g., “You smell”). Apparently,
however, the hallucinations have often focused on the children, although without direct instructions of what
to do to the children. The NSH records indicated that the hallucinations at the times of her hospitalizations
often focused on accusations about her care of her children. More recently, Ms. Disney asked Ms. Jones to
keep a log of hallucinations. Although, as already noted, she has not reported any for several months, prior to
that time the content often involved the children (e.g., “You should give your baby to someone who loves
him”; “Does Mommy want this baby?”; “You have to go back to the hospital so you can beat the boy”; “She’s
always hurting someone. Yaaa!”; “I can’t wait until you lose the kid”).

CONCLUSIONS: Although Ms. Jones’s mental status appears to have improved in recent months, she
continues to show residual signs of chronic schizophrenia (e.g., flattened affect/emotional response and social
isolation), which are likely to persist. A major concern is the question of recurrence of hallucinations and Ms.
Jones’s ability to keep control if and when they return. It is clear that the probability of florid paranoid
symptoms is substantially decreased while Ms. Jones remains on medication. However, it is unclear what the
probability is of her again experiencing hallucinations and losing control. Apparently she has not been under
great stress in recent months. Accordingly, one cannot make very strong inferences from the recent lack of
active hallucinatory behavior as to the probability of her losing control in the future. As her previous behavior
suggests, it is at such times that the children might be at physical risk.
For the time being, the general treatment plan being used by CMHC seems appropriate for Ms. Jones. It
might be useful to add work on empathy and problem solving with respect to the children themselves.
Continuing work by Social Services on application of parental skills would also be appropriate. However, Ms.
Jones’s concrete thinking style and low relatedness make such work difficult.
On the basis of the one-time interviews with them, I do not feel confident in making strong statements
about the adequacy of the Williamses and Ms. Davidson as long-term foster parents or potential adoptive
parents. Generally, however, the care given the children sounds appropriate. It is clear that Gerald is securely
attached to Ms. Davidson (e.g., he uses her as “home base” for exploration of an unfamiliar setting). However,
George appears not to be strongly attached to either Ms. Jones or any of the series of foster parents with
whom he has lived (except perhaps for Helen, as mentioned earlier).
George also appears to have substantial concerns related to his vulnerability and difficulty in managing
affect, especially anger. He is having both academic and social problems in school as well. I recommend his
referral for psychotherapy, preferably long-term. A full psychoeducational evaluation would also be advisable.
Gerald, on the other hand, appears well adjusted for a child of his age.
A final point that should be made is that Ms. Jones’s schizophrenia should not be viewed as an indicant per
se of inability to function as an adequate parent. Research by Arnold Sameroff, Bertram Cohler, Norman
Garmezy, and others indicates that although children of mothers with schizophrenia are at greater risk for

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developmental difficulties than children of mothers without mental disorders, most of these differences are
erased when comparisons are made with other diagnostic groups (e.g., mothers with mood disorders), and
many of the differences, at least for young children, disappear when proper controls are added for
socioeconomic status and stress level. Moreover, many children of mothers with schizophrenia appear to cope
reasonably well. However, the risk level is related to the chronicity of a mother’s condition, the manner in
which the illness manifests itself, and the degree of compliance with appropriate treatments. In general, the
more serious and durable the condition, the more likely it is that neglect or abuse will occur.
David P. Rodriguez, Ph.D.

(b) Discussion

The Jones report was prepared for a review of disposition in a child abuse case, which usually requires a very
wide-ranging evaluation [see § 15.06(a)]. In that regard, note that before the report was written, the clinician
took care to obtain records that might illuminate the degree of change occurring since the last review. He also
interviewed the natural mother, both sets of foster parents, and the children themselves, both by themselves
and with their mother. In addition, he had conversations with Ms. Jones’s therapist, the social worker, and the
Social Services aide, and he visited the school. The checks with other sources (e.g., Ms. Jones’s therapist) were
helpful as well; besides giving the evaluator a baseline against which to measure change, they hint at
relationships between Ms. Jones’s mental disorder and her behavior with her children (e.g., child-related
content of auditory hallucinations) that Ms. Jones did not disclose. Exploration of these diverse sources of
information is also essential in reaching conclusions about the children’s adjustment and the adequacy of the
foster homes. Both of these latter issues are ancillary to questions of a parent’s fitness, but both frequently
arise in dispositional reviews.
Substantial attention is given to Ms. Jones’s mental status, but it is important to note that it is not
scrutinized for its own sake. Rather, the clinician is interested in changes in Ms. Jones’s condition and the
relationship between Ms. Jones’s psychiatric problems and her care for her children.
Note also that in the conclusion to the report, the clinician informs the court and the Department of Social
Services of the research showing little relationship between schizophrenia and parental incompetence [see §
15.05(a)]. Elsewhere in the report, there are indirect references to research literature (e.g., using an adult as
“home base” for exploration as an indicator of a child’s attachment), which may illuminate behavioral science
information unlikely to be known to the court.
Finally, note the care with which conclusory statements, particularly predictive statements, are made. The
clinician indicates that abusive incidents in the past all occurred in the context of Ms. Jones’s hallucinations.
He reports the apparent lack of hallucinations over the previous months, but he also notes that Ms. Jones was
not under much stress during that time. Therefore, he concludes that he is unable to draw a firm conclusion
about the likelihood of Ms. Jones’s experiencing hallucinations again or of being unable to control herself if
they do recur. Similarly, the clinician emphasizes the limited database available to him for determining the
foster parents’ suitability for long-term placement or adoption. In keeping with our usual injunction against
ultimate-issue testimony, the clinician refrains from drawing conclusions as to whether Ms. Jones is an unfit
parent and whether the children should be returned to her.

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 19.14. CUSTODY [CHAPTER 16]

(a) Gonz-Jones Report

CHILD: Timmy Gonz-Jones

D.O.B.: October 31, 2006
PARENTS: Robert Jones and Mae Gonz
DATES OF INTERVIEWS: September 10, 22, and 29, 2013; October 16, 2013
DATE OF REPORT: November 20, 2013

REFERRAL/NOTIFICATION: Mr. Robert Jones and Ms. Mae Gonz were referred for a psychological
evaluation to assist the court with respect to determining the custody and placement of their seven-year-old
son, Timmy Gonz-Jones. Attorneys for Mr. Jones and Ms. Gonz agreed that this writer would be appointed
by the court to evaluate both parties and submit a written report.
Mr. Jones and his fiancée, Carol Wright (who has now married Mr. Jones but is referred to as “Ms.
Wright” throughout), were interviewed on two occasions (see below). Ms. Mae Gonz also was interviewed on
two occasions (see below), and her mother, Ms. Faye Diane Gonz, was interviewed on one occasion. Timmy
was seen on two occasions: during the course of the second interview with Mr. Jones and Ms. Wright, and
during the course of the second interview with Ms. Gonz. This writer was assisted with the evaluation by
Barbie Owling, a clinical psychology intern at the Florida Mental Health Institute.
The nature and purpose of the evaluation were explained to Mr. Jones, Ms. Wright, and Ms. Gonz. They
agreed to participate in the evaluation process. Mr. Jones and Ms. Gonz reviewed and signed consent forms
describing the evaluation procedure in more detail. Mr. Jones, Ms. Wright, and Ms. Gonz all appeared to
understand the nature of the evaluation process and agreed to participate in every aspect of it.

SOURCES OF INFORMATION: In the course of this evaluation, the following sources of information
were relied on:

1. Clinical interviews with Robert Jones and Carol Wright (September 22, 2013, 3.5 hours; September 29,
2013, 2.25 hours).
2. Clinical interviews with Mae Gonz (September 10, 2013, 3.2 hours; October 16, 2013, 1.5 hours).
3. Clinical interviews with Timmy Gonz-Jones (September 29, 2013; October 16, 2013).
4. Minnesota Multiphasic Personality Inventory–2 (MMPI-2) completed by Robert Jones.
5. MMPI-2 completed by Carol Wright.
6. MMPI-2 completed by Mae Gonz.
7. Review of psychological evaluation of Timmy Gonz-Jones, completed by Vanessa Kandies, Ph.D., and
dated May 2013.
8. Clinical treatment records describing interactions with Robert Jones, Mae Gonz, and Timmy Gonz-
Jones, compiled by Michael Johnson, Ph.D.
9. Telephone interview of Austin Cowan, M.D., treating psychiatrist for Timmy and parents, conducted on
November 9, 2013.
10. Telephone interview of Mark Johnson, Ph.D., treating psychologist for Timmy and parents, conducted

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 on October 1, 2013.
11. Telephone interview of Vanessa Kandies, Ph.D., evaluating psychologist for Timmy, conducted on
October 20, 2013.
12. Telephone interview of Andrew Lane, Ph.D., treating psychologist for Timmy and parents, conducted on
October 21, 2013.
13. Telephone interview of Francis George, owner and director of Children’s World Learning Center,
conducted on November 12, 2013.
14. Review of final judgment of dissolution of marriage of Robert Jones and Mae Gonz, dated April 14,
2010.
15. Review of court order for psychological evaluation in the case of Robert Jones and Mae Gonz, dated July
22, 2013.
16. Clinical interview with Faye Diane Gonz (December 9, 2013, 40 minutes).
17. Telephone contacts with attorney Sara Giovanie, Timmy’s guardian ad litem.
18. Copy of Timmy’s first-grade report card for the first nine weeks of the 2013–14 school year.

EVALUATION OF ROBERT JONES:

History and Background Information: Mr. Jones was born in Washington, D.C., and raised in Orlando,
Florida; his parents remain married and live in the Orlando area today. Mr. Jones is the oldest of three
children; he reported having a close relationship with his brothers and parents. Mr. Jones described his parents
as doing a “great job.”
Mr. Jones reported that he was an average student who, after graduating from high school, enlisted in the
Army. While stationed in Delaware, Mr. Jones met Mae Gonz. He reported that they dated for ten weeks
prior to marrying in October 2004. In retrospect, Mr. Jones described the short courtship and subsequent
marriage as a mistake.
While Mr. Jones was stationed in Boston, Mae delivered Timmy. Shortly after Timmy’s birth, Mr. Jones
left the Army, and he, Mae, and Timmy returned to Florida. He described Mae as becoming significantly
depressed after the birth of Timmy, and stated that she refused to be treated for this depression. Mr. Jones
also described Mae as being somewhat neglectful of Timmy during the course of her alleged depression. For
example, he reported that she did not change Timmy’s diapers as frequently as necessary, and that she
sometimes forgot or neglected to feed him.
Mr. Jones reported that he and Mae eventually came to live with his parents because of financial
difficulties. He reported that his separation from Mae was in response to her allegations that his brother
sexually abused Timmy while he was asleep. Mr. Jones denied any knowledge of such an incident and doubted
that it happened. Shortly after this incident, Mae separated from Mr. Jones, apparently citing concerns about
Timmy’s safety as well as the family’s failure to address this issue. Mr. Jones saw Mae’s allegations as an excuse
to leave their difficult marriage.
Mr. Jones described his current relationship with Mae as “very touchy but civil.” He described Mae as
resenting him, partly as a result of allegations he made regarding the suspected sexual abuse of Timmy
allegedly perpetrated by Mae’s ex-boyfriend, Ralph Carter.
Mr. Jones reported experiencing employment difficulties during the course of the marriage as a result of his

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alcohol abuse and dependence. He reported finding stable employment since he has abstained from alcohol
(see below). He currently works for a hardware store.
At the time of the interviews, Mr. Jones was engaged to Carol Wright. By the time this report was written,
Ms. Wright and Mr. Jones had married, as noted above. Mr. Jones and Ms. Wright met in May 2012 and
were engaged one month later. They married in September 2013. Mr. Jones and Ms. Wright have lived
together since July 2012.

Mental Health History and Current Psychological Functioning: Mr. Jones arrived promptly for both of his
appointments. He was well groomed and casually attired on both occasions. Mr. Jones cooperated throughout
the evaluation process.
Mr. Jones denied any significant psychiatric history, with the exception of a history of alcohol abuse and
dependence. He reported that he first began drinking heavily after enlisting in the Army. He reported
drinking alcohol on a daily basis while in the Army and afterwards. He reported experiencing a number of
employment and marital difficulties as a result of his alcohol abuse and dependence.
Mr. Jones reported abstaining from alcohol since February 2010. He reported that he stopped drinking
without entering any treatment program. He reported being involved in Alcoholics Anonymous on a monthly
basis for the past few months.
With the exception of the alcohol problems, Mr. Jones denied experiencing any emotional or psychiatric
difficulties in the past. He denied ever receiving any kind of mental health treatment. Mr. Jones has
participated in therapy with three of Timmy’s therapists (Drs. Lane, Cowan, and Johnson).
Mr. Jones communicated well during the course of the evaluation. His responses to questions were direct
and to the point. There were no indications of any major psychiatric disturbance or disorder. Mr. Jones
displayed a range of emotions that were always in control and always appropriate to the content of his speech
(i.e., he adopted a serious tone when talking about serious issues, and he was less serious when talking about
less serious issues).
Mr. Jones was administered the MMPI-2, a structured psychological instrument that assesses emotional
functioning, psychological symptomatology, and behavioral patterns. Individuals with similar profiles are
described as responding somewhat defensively to the inventory. Validity indices indicate that Mr. Jones may
have minimized his difficulties or shortcomings in an attempt to portray himself in a positive way. Such an
approach to testing, of course, is not uncommon among people completing the testing under such
circumstances.
Individuals with similar MMPI-2 profiles are considered to be without significant mental health
difficulties. They may have limited insight into their psychological functioning, however. People with similar
MMPI-2 profiles are often overly sensitive to the criticism and disapproval of others, and are perhaps passive
and overcompliant in interpersonal relationships as a result. They often have difficulty expressing anger
directly because of their fear of disapproval. They also find it difficult to assert themselves with others and may
express their anger indirectly as a result. Persons with similar MMPI-2 profiles are outgoing and enjoy
interacting with others. They may have difficulty sustaining attention and remaining focused on particular
issues.

Mr. Jones’s Relationship with and Concern for Timmy: Mr. Jones portrayed himself as highly concerned

865
about his son’s adjustment at home, at day care, and at school for the past few years. He reported a history of
behavioral and emotional difficulties that Timmy had displayed in his various day care and school placements.
These difficulties are not described in detail here, as they have been documented by various mental health
professionals (see, e.g., Dr. Kandies’s report) and Timmy’s teacher (see his report card). Mr. Jones reported
that Timmy was almost expelled from day care on one occasion because of some of these difficulties. Mr.
Jones believes that his ex-wife lied to day care professionals in response to their suggestions that Timmy be
treated for these difficulties.
Mr. Jones reported that about one year ago, he and his ex-wife agreed that Timmy would live with him
and Ms. Wright if he continued to show behavior problems. He reported that Ms. Gonz later denied ever
reaching such an agreement and refused to let Timmy move in with him.
Mr. Jones reported that he, his ex-wife, and Timmy first enrolled in treatment for Timmy’s difficulties
with Dr. Andrew Lane in December 2012. He reported that Dr. Lane met mostly with him and Ms. Gonz
over the course of their three to four sessions, and that the sessions focused on communicating with each
other and agreeing on how to treat and handle Timmy. Mr. Jones reported that he saw treatment with Dr.
Lane as being of little help because of his ex-wife’s unwillingness to engage in treatment and respond to
Timmy’s difficult behaviors. Thus he discontinued the treatment.
From March through May 2013, Mr. Jones and Ms. Gonz sought treatment with Dr. Austin Cowan. Mr.
Jones reported that he “wanted somebody fresh.” Dr. Cowan apparently diagnosed Timmy as suffering from
attention-deficit/hyperactivity disorder (ADHD) and prescribed Ritalin, a psychostimulant often used for
children with ADHD. Ritalin was apparently prescribed without Ms. Gonz’s knowledge. The Ritalin was
discontinued after two weeks because of increased aggression and no improvement in attention on Timmy’s
part. Treatment with Dr. Cowan was subsequently discontinued, in part because of Ms. Gonz’s concern
regarding Timmy’s being administered the medication without her knowledge or approval.
Finally, Mr. Jones and Ms. Gonz initiated treatment with Dr. Mark Johnson in June 2013. Mr. Jones’s
understanding of the treatment was that he and his ex-wife were to work together to establish a stable,
consistent, and supportive environment for Timmy. Dr. Johnson discontinued treatment in response to Ms.
Gonz’s failing to keep a number of appointments and her inability to pay the bills for those missed
appointments (see below). Further treatment has not been initiated.
In January 2013, Mr. Jones contacted Health and Rehabilitative Services (HRS) and alleged that Timmy
might have been abused by Mr. Carter, Ms. Gonz’s ex-boyfriend. Mr. Jones reported that he was granted
custody of Timmy until June 2013, at which time it was determined that the allegation of sexual abuse was
unfounded, based on the evaluation by Dr. Kandies.
Mr. Jones agreed to Timmy’s returning to his mother after reading Dr. Kandies’s report. Between May
2013 and October 2013, Timmy lived alternately with his mother and father, moving back and forth between
their households every two days or so. Mr. Jones reported that Timmy did not appear to be experiencing any
difficulties as a result of this arrangement until he entered school. He reported, however, that the situation
was sometimes confusing for Timmy.
Mr. Jones described himself as having a positive, happy, and loving relationship with his son. He described
Timmy as affectionate, though sometimes distant. He reported that Timmy always sought to do things with
him on their visits. He reported paying more attention to Timmy now than he had in the past.

866
 Mr. Jones described Timmy and Ms. Wright’s relationship in a positive way. He acknowledged that their
relationship was somewhat tentative because Timmy was “still getting to know Carol.” Mr. Jones described
his fiancée/wife as adopting a parenting role with Timmy in a very natural way. He reported that Ms. Wright
sometimes becomes frustrated because she has not been involved in Timmy’s treatment in the past.
Mr. Jones reported that Timmy is very confused about his current living arrangement and about what is
and is not acceptable behavior. Mr. Jones attributed this confusion to differences he and his ex-wife have with
respect to raising Timmy and responding to his inappropriate or problematic behaviors. Mr. Jones also
identified Timmy as having problems with a short attention span and infrequent aggression. He sees these as
secondary to other problems. For example, Mr. Jones reported that the difficulties with attention and
aggression appear to be mostly a problem at school, and he wondered whether Timmy’s difficulties with
bedwetting in the past have contributed to teasing and frustration that resulted in his becoming aggressive
with other children.
Mr. Jones believes that Timmy needs to establish a primary residence because of the consistency that would
result. He also believes that placement in a smaller school, with more individualized attention, would be
helpful to Timmy.
With respect to his strengths as a parent, Mr. Jones identified his love for Timmy and children in general
and his devotion to his son. He identified as a potential weakness his tendency sometimes to act before
thinking. He acknowledged that he sometimes “comes on stronger” than he realizes. Mr. Jones thinks that
Ms. Gonz believes he is “too strict,” and that she might be concerned about his history of alcohol abuse.
Mr. Jones described his ex-wife as highly creative and as easygoing and fun for Timmy to be around.
However, he also described his ex-wife as having an “explosive temper” and being too permissive with Timmy
on some occasions. Mr. Jones sees some of Timmy’s difficulties as resulting from his ex-wife’s failure to
appreciate the significance of Timmy’s problems and/or her unwillingness to punish his problem behaviors.
With respect to responding to Timmy’s problem behaviors, Mr. Jones and Ms. Wright provided examples
of behavioral programs and strategies they have developed. For example, they have posted lists for Timmy to
refer to that identify his responsibilities during the morning (e.g., using the bathroom, dressing, brushing his
teeth, and turning off the bedroom light). Mr. Jones also described developing a behavioral program for
Timmy, whereby he is rewarded on those days that he does not wet his pants. Mr. Jones and Ms. Wright
reported that these techniques have generally been successful, although there have been some setbacks. They
see the lack of consistency between their household and Ms. Gonz’s as responsible for the less than ideal
improvement.

Mr. Jones’s Preferred Custody Arrangement: Mr. Jones would like to see Timmy maintain his primary
residence with him and Ms. Wright. He identified this as most appropriate for Timmy for a number of
reasons. First, as indicated above, Mr. Jones sees Timmy as needing consistency and direction. He considers
himself and Ms. Wright to be better able to provide this; Mr. Jones sees one of his ex-wife’s weaknesses as her
difficulty in being firm and consistent with Timmy. Mr. Jones also cited Timmy as needing significant
intervention as a result of his behavioral and emotional difficulties. He related numerous instances where he
believed his ex-wife was lax in either responding to these difficulties or ensuring that Timmy received some
kind of treatment for them. Finally, Mr. Jones, who is anticipating a move to Pinellas County, reported that

867
Timmy would benefit from the opportunity to attend a new school where he would not suffer because of his
reputation for past difficulties. Mr. Jones made clear that he fully expected Timmy to remain involved with
Ms. Gonz, however.

EVALUATION OF MAE GONZ:

History and Background Information: Ms. Gonz was born and raised in Delaware. She is the oldest of three
children. She was enrolled in college when she met Mr. Jones and dropped out of college to marry him. Ms.
Gonz reported some positive experiences over the early course of her marriage, but also reported experiencing
significant financial and relationship difficulties as a result of his alcohol abuse.
Ms. Gonz reported an uncomplicated pregnancy and delivery with Timmy, but noted that Timmy endured
some problems with his digestive tract after being born, and that these were successfully treated. She described
Mr. Jones as supportive and helpful during her pregnancy and delivery.
Shortly after Timmy’s birth, Mr. Jones left the Army, and he, Ms. Gonz, and Timmy moved in with
Robert’s parents in Orlando. Ms. Gonz reported experiencing some depression, which she attributed to her
mother-in-law’s overcontrolling behavior and negative comments offered by Mr. Jones’s family regarding her
depression. She reported undergoing one or two counseling sessions for depression at the suggestion of her
husband, but she could not remember the content of the sessions or why they ended.
Ms. Gonz obtained a job when Timmy was approximately three or four months old. She reported that her
mood improved significantly, and she attributed this to her increased self-esteem and to the fact that she and
her husband could now afford their own apartment. However, Ms. Gonz reported experiencing ongoing
financial problems over the course of her marriage as a result of Mr. Jones’s alcohol abuse and job instability.
She reported that her ex-husband was once jailed and fined after stealing approximately $1,000 from his
employer. Both Ms. Gonz and Mr. Jones reported that he was not convicted for this offense after completing
a pretrial intervention program.
Ms. Gonz reported that she and her ex-husband had to return to his parents’ home after being evicted
from their apartment because of his failure to pay their rent. It was at this time that the alleged sexual abuse of
Timmy by Mr. Jones’s brother occurred. Ms. Gonz’s concerns about what she perceived as her ex-husband’s
failure to protect and intervene on Timmy’s behalf eventually led to her separation and eventual divorce.
Ms. Gonz reported that during the initial part of their separation, she and her ex-husband did not develop
specific arrangements about visitation and custody. Ms. Gonz claimed that her ex-husband was less involved
in decisionmaking about Timmy, but that his interest in Timmy increased and appeared to coincide with his
involvement with Ms. Wright.
At the time of the evaluation, Ms. Gonz had recently ended her relationship with Ralph Carter—her
boyfriend and the father of her second child, Ron, who was born in June 1993. After completing the clinical
interviews, Ms. Gonz reported via telephone that her mother had moved to Florida to live with her and help
her raise her children.

Mental Health History and Current Psychological Functioning: Ms. Gonz arrived for her interviews
promptly. There were no indications of depression or any other significant or serious psychiatric disorder; Ms.
Gonz reported adequate adjustment and no significant psychiatric difficulties. As indicated previously, Ms.

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Gonz did report experiencing some depression shortly after the birth of Timmy. She reported no similar
difficulties after the birth of Ron, however.
Ms. Gonz cooperated with the evaluation process. Her responses to questions were direct and on point.
She displayed a range of emotion that was always appropriate to the content of her speech. She denied any
history of drug or alcohol abuse or dependence.
Ms. Gonz was administered the MMPI-2 (see the evaluation of Mr. Jones for a description of this
instrument). Individuals with similar validity configurations are described as responding to the items in an
honest and straightforward manner. Thus the profile is considered to reflect accurately her current level of
psychological functioning.
Individuals with similar MMPI-2 profiles are described as experiencing some psychological difficulties.
They are observed to drive themselves excessively and to be overextended as a result. They develop unrealistic
plans and may fail to complete or reach their goals. Individuals with similar MMPI-2 profiles dislike having
to deal with details and are somewhat disorganized.
Individuals with similar MMPI-2 profiles are described as highly confident. They are highly focused on
their own needs, and they may become frustrated, irritable, and moody when things do not go their way.
Persons with similar MMPI-2 profiles sometimes act without considering the consequences of their behavior;
this may create difficulties for themselves or others. Individuals with similar MMPI-2 profiles may be
manipulative and superficial in their relationships with others. They may experience strained interpersonal
relationships as a result. Such persons are easily bored, are outgoing and sociable, and have a strong need to be
around others.

Ms. Gonz’s Relationship with and Concern for Timmy: Ms. Gonz described both Timmy and Ron in very
positive terms. Her appraisal of Timmy’s adjustment, however, suggested that she sees him as having fewer
and less severe problems than her ex-husband perceives. She acknowledged problems with Timmy’s school
behavior, including decreased attention and difficulty following directions, and physical aggression directed
toward other children. She stressed, however, Timmy’s intelligence and ability to learn.
Ms. Gonz described herself as willing to do whatever was necessary to facilitate her son’s adjustment. She
reported meeting with teachers and intervening at home (e.g., helping Timmy with his homework and
directing him to take time to consider things before acting). She reported that she planned to meet with
Timmy’s teacher on a daily basis.
Ms. Gonz reported that Timmy’s problems appeared to develop in kindergarten. She attributed this in part
to the fact that Timmy had five teachers in two months. Ms. Gonz reported that it was also at about this time
that Timmy began having difficulties with bedwetting. Unlike her ex-husband, Ms. Gonz felt that Timmy’s
behavior had improved somewhat in response to therapy with Dr. Lane. She saw the termination of treatment
with Dr. Lane as resulting from her ex-husband’s refusal to participate in treatment.
According to Ms. Gonz, it was shortly after this termination that her ex-husband alleged that her ex-
boyfriend, Mr. Carter, abused Timmy. Ms. Gonz reported that Timmy was evaluated by Dr. Kandies in
response to these allegations. She says she does not know if the abuse occurred.
Ms. Gonz reported that she, her ex-husband, and Timmy also entered treatment with Dr. Cowan. She
reported that she became upset with Dr. Cowan after he prescribed Ritalin without her permission. Finally,

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Ms. Gonz and her ex-husband agreed to see Dr. Johnson this past spring. It was Ms. Gonz’s understanding
that she and her husband were to work together so that they would be more consistent in their interactions
with Timmy. At the time of the evaluation, Ms. Gonz reported having questions about whether therapy with
Dr. Johnson would be successful; she attributed her concerns to her ex-husband’s attitude.

Ms. Gonz’s Preferred Custody Arrangement: Ms. Gonz sees Timmy’s behavior as partly a function of the lack
of consistency and confusion that presumably results from his movement between two households. She
believes that Timmy needs to identify one household as home. She would prefer that Timmy live with her
during the week and live with her ex-husband on weekends. Ms. Gonz believes that placement with her ex-
husband would not be in Timmy’s best interests for a number of reasons. Ms. Gonz thinks that entering a
new school, rather than helping Timmy, would increase problems because of a lack of consistency and further
change. She also sees the changes of day care centers that have occurred in the past as detrimental to Timmy.
She reported that Timmy has been involved in three day care centers, and she saw her ex-husband as moving
Timmy from one center with little justification. Ms. Gonz also sees her ex-husband as too strict with Timmy,
and believes that this is yet another reason why placement would be better with her.
When asked about her strengths as a parent, Ms. Gonz described herself as a fair, honest, patient, loving
parent who stresses independence. She identified as a weakness her need to increase her consistency in
response to misbehavior on Timmy’s part. She reported that she does not use corporal punishment and prefers
to use “time out.” She also identified as a weakness her tendency to be “scatterbrained.” She described herself
as having no concept of time, and acknowledged that appointments had been missed as a result.
When asked to describe her ex-husband’s strengths, Ms. Gonz identified his love and concern for their
son, as well as some of the behavioral programs that he has developed for Timmy. Ms. Gonz identified her
concerns regarding her ex-husband’s parenting abilities as “his short fuse, his lack of patience, and his
tendency to be too strict.” She also described her ex-husband as not acting on his own, but being easily led by
those around him.

EVALUATION OF CAROL WRIGHT:

History and Background Information: Ms. Wright reported growing up in a military family and moving
around frequently as a young child. She has lived in Florida since the age of 12. Ms. Wright has worked for a
finance company for the past four years. This is Ms. Wright’s first marriage.

Mental Health History and Current Psychological Functioning: Ms. Wright was seen on two occasions in
the department clinic. She was cooperative with the evaluation process and appeared to make a sincere
attempt to answer all questions that were presented to her.
Ms. Wright gave considerable thought to her responses and was able to express herself quite well. She
displayed a range of emotions during the interviews, and her expressed emotion was always appropriate to the
content of her speech. At one point during the second interview, she became tearful as she talked about
Timmy’s difficulties, as well as the frustration that she experiences when she feels left out of decisions made
about Timmy.
Ms. Wright denied any history of involvement with the mental health system. She denied any history of
drug or alcohol abuse. She reported significantly decreasing her alcohol use over the past one and a half years,

870
since meeting Mr. Jones. Ms. Wright denied having had any need for mental health treatment in the past.
Ms. Wright was administered the MMPI-2. Validity indices of the MMPI-2 indicate that Ms. Wright
portrayed herself in a positive manner, minimizing difficulties, faults, or shortcomings. Such an approach to
testing is typical of persons who are trying to maintain an appearance of adequacy and self-control, or who are
completing psychological testing as part of a forensic evaluation. Individuals with similar validity
configurations are also described as having somewhat limited insight. They may be inflexible in their approach
to their problems and may not be open to psychological evaluation or interpretation.
Persons with similar MMPI-2 profiles are sometimes seen as intolerant of others’ shortcomings. As a result
of their approach and self-concept, such persons are unlikely to seek mental health treatment. Individuals with
similar MMPI-2 profiles are described as having few difficulties. Persons with similar MMPI-2 profiles are
generally outgoing and energetic. They enjoy being around and in the company of others.

Ms. Wright’s Relationship with and Concern for Timmy: Ms. Wright expressed obvious concern and
affection for Timmy. When asked to describe Timmy, Ms. Wright responded that Timmy is “physically
attractive and very charming; he has a cuteness about him, which he sometimes uses to manipulate” others.
Ms. Wright went on to note that she sometimes saw Timmy play his parents off against one another. Like
Mr. Jones, Ms. Wright sees Timmy as having significant behavioral and emotional difficulties that have not
been ideally treated. She and her new husband are in general agreement regarding how to respond to Timmy’s
behavior, and their approach is more behaviorally focused than that offered by Ms. Gonz (see above and
below).
Ms. Wright identified Timmy’s main problems as the instability and inconsistency in his life, due to the
lack of a stable and structured environment. Ms. Wright sees Timmy as responsive to interventions and limits
that are placed on him. She believes that if Timmy were placed with Mr. Jones and her, he would show
improvement in his behavior and other difficulties.
Ms. Wright stated that her parenting strengths include her stability and consistency. She described herself
as loving Timmy “with all my heart” and expressed considerable concern about his future, given his current
difficulties. When asked to identify her potential weaknesses, Ms. Wright reported that she needs to increase
her patience. Ms. Wright stated that Timmy came into her life in an abrupt way as a six-year-old, and that
she may have expected too much too soon from Timmy. She sees herself as making significant gains in this
area, however. In contrast to herself, Ms. Wright sees her husband as having considerable patience, and she
sees them as “balancing each other out.” She also sees her husband’s love for his son and desire for
involvement with him as strengths. Ms. Wright identified her husband’s weaknesses with respect to parenting
as his fear of being seen as a “heavy” by Timmy and being less consistent as a result.

INTERVIEW WITH FAYE DIANE GONZ (MAE GONZ’S MOTHER): The elder Ms. Gonz was
interviewed after she had been living with her daughter for four weeks. She reported that the two of them
agreed that she would move to Tampa from Delaware to offer both financial and emotional support. She
described her daughter as undergoing a number of stressors in the past year, including questions about custody
of Timmy, financial problems, the birth of a new son, and the dissolution of her relationship with Mr. Carter.
Ms. Gonz, however, noted that her daughter appeared to be managing these stressors in a positive way. Ms.
Gonz reported that although her plans were not fully crystallized, she hoped to remain in Tampa for at least

871
one year to assist and support her daughter.
Ms. Gonz described Timmy as doing very well in terms of his adjustment at home. She described him as
acting as she would expect most boys his age to act, with relatively few problems. However, she did
acknowledge that Timmy was having some difficulties, and also acknowledged some awareness of difficulties
at school.
Ms. Gonz described her daughter as loving, creative, and consistent with respect to making rules. With
respect to weaknesses, she reported that her daughter could be more organized, and she believed that Timmy
would benefit from this. Moreover, Ms. Gonz stated that the number of stressors her daughter was under
negatively affected her parenting in some ways on a day-to-day basis.

EVALUATION OF TIMMY GONZ-JONES: Timmy was interviewed on two occasions: once

accompanied by his father and stepmother, and once accompanied by his mother. On both occasions, Timmy
was quite energetic and distractible. In his interactions with this writer and Ms. Owling, he frequently had to
be redirected and reinstructed regarding what was expected and asked of him. Timmy was quite fidgety and
had difficulty sustaining attention for any length of time. He frequently left his chair and moved around the
room, sometimes ignoring the directions or instructions of Ms. Owling. However, Timmy eventually came to
comply with almost all requests that were made of him.
Timmy spoke about his father, his mother, and Ms. Wright in positive terms. He indicated that his
parents did not live together because “they are not happy together.” He described himself as happy when
spending time with both his mother and his father. He reported not being able to spend as much time with
his mother, however, because of his new baby brother, whom he also described in positive terms.
Timmy described his school experience in generally negative terms. He reported not having many friends,
sometimes being teased, and not being liked by his teacher. Timmy reported that his mother helped him with
his homework. He reported that his father and Ms. Wright did not do this because he did not take
schoolwork to their house on weekends. Timmy was able to identify a number of friends that he has in his
neighborhood.
Timmy reported having different responsibilities and schedules in his two houses, and acknowledged that
this was sometimes confusing. When interviewed in the presence of his mother, father, and Ms. Wright,
Timmy was somewhat better behaved and more compliant. He appeared to respond to the directions and
requests of his mother, father, and Ms. Wright equally. Timmy was able to describe his daily routine and
responsibilities in both homes with the assistance of his mother, father, and Ms. Wright. All three adults
showed affection for and an ability to work with Timmy during these interactions.
Timmy’s report card from the most recent term indicated that he was having difficulties in all areas of
behavior. The guardian ad litem, Ms. Giovanie, was informed by Timmy’s teacher that he continues to show
significant behavioral and emotional difficulties. She also informed Ms. Giovanie that Timmy continues to
fail to complete homework assignments, and that Ms. Gonz has not kept appointments with her or followed
through with recommended interventions.

REPORTS OF EVALUATING AND TREATING MENTAL HEALTH PROFESSIONALS: In a

telephone interview, Dr. Lane, the first psychologist to treat Timmy and his parents, reported that he
considered Timmy’s problems to be largely the results of parental conflict. It was Dr. Lane’s impression that

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Mr. Jones chose not to continue their sessions. Dr. Lane believed that Mr. Jones was not fully invested in the
treatment. He saw Ms. Gonz as more focused on Timmy’s needs and more agreeable to treatment.
Dr. Cowan, the second psychologist who saw Timmy and his parents, believed that Mr. Jones and Ms.
Gonz blamed each other for Timmy’s difficulties. As compared to Dr. Lane, Dr. Cowan saw Mr. Jones as
more involved in treatment. Dr. Cowan understood that treatment was discontinued because Ms. Gonz was
upset by the fact that Timmy was started on psychostimulant medication without her knowledge.
Dr. Johnson was the last mental health professional to be involved with Timmy and his parents for
treatment. Dr. Johnson reported that Ms. Gonz failed to keep a number of scheduled appointments or call to
cancel them. Dr. Johnson reported that he terminated treatment because of Ms. Gonz’s inconsistency and her
inability to pay for her missed sessions. Dr. Johnson stated that the parents appear to be unable to cooperate
with each other and carry out an effective intervention for their son. He described Mr. Jones as
“overprotective” and Ms. Gonz as “unable to follow through.”

IMPRESSIONS AND RECOMMENDATIONS: Interviews with Timmy, Timmy’s parents, and treating
mental health professionals indicate that Timmy is experiencing considerable emotional and behavioral
difficulties. It is also the consensus of most, if not all, of those involved that Timmy’s difficulties are largely
related to the confusion and inconsistency he has experienced as a result of his parents’ divorce. Compounding
the general difficulties experienced by Timmy as a result of the dissolution of his parents’ marriage is his
parents’ inability to interact with each other in a reasonable way and consistently place the needs of their son
before their own needs and desires.
It is also the general agreement of all those involved that Timmy will benefit from a more structured and
consistent environment. It is agreed that finalization of the custody arrangement and placement in a “primary
home” should lead to an improvement in terms of Timmy’s adjustment. Such a placement, however, in and of
itself, will not be enough to facilitate Timmy’s adjustment. Therapy for Timmy, his custodial and
noncustodial parents, and significant others who are involved (i.e., his maternal grandmother and his
stepmother) is clearly indicated. Of some concern is the fact that Mr. Jones and Ms. Gonz have not been able
to manage to make such therapy work to any degree in the past.
The results of psychological testing, as well as impressions gained through clinical interviews, suggest that
neither Mr. Jones nor Ms. Gonz is an “inadequate” parent. Both have strengths and weaknesses that they and
treating mental health professionals have identified. If Timmy is to remain in the primary custody and
residence of his mother, he will have access to his half-brother and maternal grandmother. These are
important issues to be considered. Placement with his mother, however, does have drawbacks. Accounts of
Ms. Gonz’s behavior suggests that she has experienced some significant stressors that have affected Timmy in
a negative way. Specifically, Ms. Gonz’s mother sees these stressors as negatively affecting Ms. Gonz’s ability
to parent Timmy in some ways. A more significant concern is perhaps Ms. Gonz’s apparent difficulties with
organization and follow-through, as evidenced by her difficulty in maintaining contact with Timmy’s most
recent therapist. Moreover, school personnel have reported that Timmy’s schoolwork is suffering because of
his mother’s failure to supervise his homework or follow through adequately. It is disheartening to see that
Timmy’s most recent attempt at therapy was abandoned in part because of a lack of follow-through on his
mother’s part.

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 There are also strengths and limitations of placing Timmy with his father. Mr. Jones and Ms. Wright
appear to have a greater awareness of, and are more focused on, Timmy’s emotional and behavioral
difficulties. They were able to describe, in detail, reasonable and organized attempts they have made to work
with Timmy at home to facilitate his adjustment. These attempts, if initiated on a regular and ongoing basis,
in addition to therapy, should result in improvements in Timmy’s adjustment and behavior. There are
drawbacks to Timmy’s living with his father and stepmother, however. They include his removal from a half-
brother with whom he has bonded, as well as the lack of regular exposure to his mother, who is considered by
all to be a very loving, creative, and stimulating parent.
Again, this writer would like to reiterate that it is apparent that both Ms. Gonz and Mr. Jones are very
concerned about Timmy. Neither parent is “inadequate.” Rather, each parent has relative strengths and
weaknesses that may be more or less important to Timmy at this point in his life.
Respectfully submitted,
Raoul K. Osmond, Ph.D.
Licensed Psychologist

(b) Discussion

Note that the evaluator in this case is working for the court rather than for one of the parties. As suggested in
§ 16.04(a), this role is often advantageous in the custody setting, because it reduces the adversarial pressures
on the expert and facilitates gathering information. Although the expert appears to lean in the direction of the
father and his new wife, the court-appointed role probably made it easier for him to ensure that the report
recounts the strengths and weaknesses of both sides.
The evaluation is perhaps not as “ecological” as it could be [see § 16.04(c)]. For instance, the evaluator did
not make a home visit. On the other hand, he did obtain information from multiple sources, including school
records, standardized testing, interviews with other therapists, and interviews with Timmy’s significant others.
Note that the evaluator interviewed each parent with Timmy present, so as to be able to observe their
interaction. From each parent, he elicited descriptions of the family structure; the parent’s attitudes toward the
other parent; the parent’s goals with respect to Timmy, custody, and visitation; and the parent’s prior, current,
and anticipated caregiving procedures and lifestyle. From Timmy, he elicited attitudes and preferences
regarding the parents’ current living arrangements, visitation, and placement, and his conceptualization of the
relationship with each parent. The mental and emotional functioning of each individual was also assessed.
After reading this report, consider how you would answer the questions posed in Problem 18.1 (in Chapter
18), assuming that you are the court’s witness.

19.15. EVALUATION UNDER THE INDIVIDUALS WITH DISABILITIES

EDUCATION ACT [CHAPTER 17]

(a) Sam Shay Report*

NAME: Sam Shay

D.O.B.: August 3, 1987
SEX: Male

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DATE INTERVIEWED: May 28, 1995
CLINICIAN: Patti Barrett, Ph.D.
REFERRED BY: School psychologist

REASON FOR REFERRAL: Sam was referred for a psychoeducational evaluation by the school
psychologist, Ms. Thompson, to determine whether he has a learning disability. Sam has been having
difficulties in school, both academic and behavioral. Ms. Thompson would like to understand what is causing
Sam’s difficulties and to obtain appropriate services for him under the Individuals with Disabilities Education
Act (IDEA).

BACKGROUND INFORMATION:

Current Functioning: Sam is currently in a general education third-grade class at school. His classroom
teacher has suggested that he repeat third grade next year. A report card from the third grading period shows
F’s in mathematics, science, and social studies, and D’s in reading and language arts. Sam received a B in art
and C’s in music and physical education. Effort and behavioral grades are all “Unsatisfactory” or “Needs
Improvement.” The teacher’s comments from the first quarter describe poor reading and writing skills (“Sam
does not know letter sounds . . . cannot pronounce new words . . . flubs directions . . . writes anything because
he cannot read the directions”). The teacher also describes poor behavior and effort by the third quarter (“Sam
has made no effort . . . doesn’t seem to care”).
Sam receives additional academic support in the form of a small-group remedial reading class daily. A
teacher report from this group in April 1995 says that Sam’s behavior has improved as he has been learning
word attack skills on the Macintosh computer. This teacher also says, “Despite his difficulties with the process
of learning to read, he never gives up. He has a great attitude.”
Ms. Thompson does not believe that Sam can receive adequate support for his academic difficulties in the
large class, and that many of his behavioral problems stem from frustration and the low self-esteem that
comes from failing in the large class. She notes that with appropriate support, like that in the remedial reading
class, Sam is motivated and learns; however, she does feel that he has visual and learning problems that make
many academic tasks difficult.

History: Sam was born after a pregnancy complicated by preeclampsia (high blood pressure and fluid
retention) and toxemia (which can follow from preeclampsia and involves convulsions). He weighed 7 pounds,
11 ounces at birth and was a healthy baby. According to his mother, he met developmental milestones early.
Sam’s medical history includes a bout of scarlet fever, for which he was not hospitalized. He has asthma
and takes Ventolin (an antiasthmatic drug) as needed. Otherwise, he appears to be in good health.
Sam started school at Mark Twain Elementary School, where he is now. The report card from
kindergarten indicates that Sam mastered most of the required skills, although even then he was having some
difficulty learning letters and sounds and had some small-muscle control difficulties. In first grade, he
achieved ratings of “Good” in mathematics computation, science, social studies, art, and music, but his
performance in other areas was inconsistent. In handwriting, he started the year with “Unsatisfactory,” but
achieved a “Good” by the end of the year. In reading, although his comprehension was “Good,” he clearly
struggled with phonetic analysis. Things changed significantly in second grade: In the first quarter, Sam was

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described as below grade level across the board, with particular weaknesses in mathematics and reading, and
was rated as “Unsatisfactory” in most areas of behavior.
The school suggested that Sam repeat first grade at that time, but Mrs. Shay chose instead to transfer Sam
to a private school, where there were smaller classes. Even in a smaller class, Sam continued to have academic
difficulties—receiving a C+ in reading, and D+’s in mathematics, language arts, science, and social studies—
but he was rated “Satisfactory” in behavior. At the end of second grade, Sam had to leave the private school
for financial reasons and went back to public school to repeat second grade. His report card shows “Good”
work and study habits, and “Good” achievement in mathematics, social studies, spelling, art, and music but
continued difficulties (“Needs Improvement”) in reading and language arts. This teacher described Sam as
being cooperative and working well independently, but also as being easily distracted.
When Sam returned to Mark Twain Elementary, Mrs. Shay had him tested for a learning disability. Sam
was found to have average intellectual functioning on the Wechsler Intelligence Scale for Children—Third
Edition (WISC-III) and average visual–motor integration skills as measured by the Bender–Gestalt Test. The
psychologist who conducted this testing described a number of specific behaviors on Sam’s part. These
included some misinterpretations of what Sam heard, inordinate erasing on the Bender–Gestalt, use of verbal
self-instruction on some WISC-III Performance tasks, and needing considerable probing on some Verbal
tasks. Despite average intellectual abilities, Sam’s performance on the Kaufman Tests of Educational
Achievement fell somewhat below grade expectations, particularly in reading, where he scored at the 21st
percentile rank. More in-depth educational assessment was conducted by the educational evaluator, who
described Sam as a hesitant reader who made many word recognition errors and reversed d’s and b’s. On
rereading with a page mask, he was able to correct many reading errors. On the Slingerland (a test measuring
reading disability, which looks at visual processing of letters), he made many errors indicative of a reading
disability, including transpositions, substitutions, and reversals; the evaluator described Sam as having weak
visual and auditory perception and memory, with poor sound–symbol associations. The speech and language
evaluator described low-average receptive language skills, with difficulty discerning phonological differences
and an uneven vocabulary. Expressive language appeared to be average.
Mrs. Shay independently had a visual evaluation conducted by Oscar Bing, who found that Sam was
significantly farsighted and astigmatic—a condition that could be corrected with glasses to only a limited
extent. Dr. Bing noted that Sam was likely to have underlying visual–motor integration and spatial
organization problems resulting in significant interference with learning, with concomitant loss of attention
and motivation. The school recommended no special education supportive services for Sam, but, according to
Mrs. Shay, recommended that she work with him in phonics and read with him more. As stated earlier, Sam
does participate in a small-group remedial reading class daily.

TEST BEHAVIOR: Sam came to the assessment with his mother. He chose to participate in an initial
informational interview between the clinician and his mother, rather than play with toys in the room. He
participated in the 45-minute interview appropriately, clearly interested in the issues being discussed and
contributing relevant information. He demonstrated good turn-taking skills, and he both initiated and
responded to conversation. His language appeared age-appropriate; his sentences were well organized and his
vocabulary adequately developed for his age. He related well to the clinician and willingly turned to testing

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tasks when the interview ended.
Sam was very cooperative during both test sessions. He showed good concentration and attention across
tasks, and enjoyed the challenges of many of them. He was persistent even with difficult tasks, but was able to
assess appropriately what was too difficult for him. He was interested in the process of testing and asked
appropriate questions about what the subtests were for, demonstrating a good understanding of some of the
types of behavior being assessed.
Sam demonstrated some good test-taking strategies, which, if applied in the classroom, would support
classroom learning. He self-monitored, checking his work and frequently correcting errors. He had an ordered
step-by-step approach to some familiar academic tasks, and he did not let failure upset his subsequent
performance. He tried to relate unfamiliar tasks to familiar experiences, saying, “Oh, this is kind of like when
I . . . ” (making appropriate analogies to his experience).
Sam understood the reason for testing, but showed limited insight into his behavioral difficulties. He
tended to blame others for these problems, saying that the teacher and other kids picked on him and that he
was never responsible for any of the problems. He had more insight into his academic problems, saying that
his language arts class was hardest for him in school because he couldn’t always understand the tasks, and that
reading was often hard for him. He felt he behaved better in the small-group reading class because the teacher
there taught in a way that helped him learn better.

TESTING: The tests administered were the Woodcock–Johnson—Revised (WJ-R) Tests of Cognitive
Ability, the WJ-R Tests of Achievement, the Bender–Gestalt Test, and some informal tests of academic
functioning. (Note that Sam’s evaluation was conducted in 1995; at the present time, the WJ III instead of the
WJ-R would be used.) The results of the cognitive tests are reported first, followed by an interpretation of
those results. Achievement test results and interpretation are then provided.

Tests of Cognitive Ability: Results

WJ-R Tests of Cognitive Ability:

Areas Standard score Age-equivalent %ile for age
Long-Term Retrieval 110 13–9 74
Short-Term Memory 91 7–9 27

Processing Speed 90 8–9 26

Auditory Processing 87 6–11 20

Visual Processing 118 13–5 89

Comprehension–Knowledge 79 7–1 8
Fluid Reasoning 93 8–2 33
BROAD COGNITIVE 86 8–2 17

Bender–Gestalt Test: Age-equivalent: 7.0 to 7.5

Tests of Cognitive Ability: Interpretation

Sam’s scores on the WJ-R Tests of Cognitive Ability fell roughly between the 15th (low-average) and 85th

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(high-average) percentiles for his age. Sam’s Broad Cognitive score (i.e., his overall score) of 17 fell in the
low-average range; however, this score is the result of significantly different domain scores, suggesting wide
variability in his abilities. As the table shows, Sam’s scores in the different cognitive areas assessed in this test
ranged from the 8th percentile rank to the 89th percentile rank in relation to his age peers, and his scores on
the subtests varied even more widely (from the 5th to the 99th percentiles).
Sam has a number of processing strengths. He processes and retains visual information accurately, and he
can demonstrate this ability as long as the assessment task requires recognition and not motoric reproduction
of what he has seen. On two subtests, he accurately identified incomplete pictures (39th percentile rank) and
easily recognized which pictures in a group of pictures he had seen before (99.7th percentile rank). This latter
was an area of real strength and suggests that visual presentation of information could help enhance his recall
of information.
Sam also has age-appropriate short-term auditory memory skills. On two memory subtests, he was able to
attend to and recall sentences and lists of words he heard, accurately recalling sentences of up to nine words
(27th percentile rank) and lists of five words (68th percentile rank). His score for the recall of sentences would
have been higher, but he made a number of minor grammatical errors when repeating sentences, which
lowered his score. On another subtest, he also could fill in missing auditory information (sounds) and identify
incomplete words he heard (46th percentile rank). Thus he is clearly able to process and recall the content of
verbal messages accurately.
Sam’s strong performance on tasks that required making new auditory–visual associations shows that he is
able to integrate information across these two modalities. On subtests, Sam easily recalled nonsense labels for
unusual designs (72th percentile rank) and meaningful labels for symbols (70th percentile rank). His recall of
information presented in the two modalities was stronger than his recall of information presented only in the
auditory modality.
However, Sam does have difficulties processing some types of auditory and visual information. He had
great difficulty with the Sound Blending subtest (11th percentile rank). He both added and omitted sounds
and was unable to blend more than two sounds. This was an area of significant difficulty, which clearly
underlies phonetic analysis and decoding skills.
Sam also had difficulty discriminating visual information, familiar and unfamiliar, when scanning small
symbols or numbers was required (26th percentile rank). He could do this accurately, but the effort required
resulted in slow speeds. To identify two matching numbers in a row of numbers, he often had to scan the row
of numbers more than once, and he sometimes skipped numbers in his scanning.
Sam also had difficulties that interfered with his expression of information, not just intake of information.
On tasks requiring motor reproduction of what he saw, Sam consistently had integration difficulties; that is,
he could not accurately copy two designs in relationship to each other. He knew that there were errors in his
reproductions, but he was not able to correct them. When asked to reproduce the drawings from memory, he
recalled seven of the nine designs, showing good visual memory, but persisted in his drawing errors. His
performance on the Bender–Gestalt suggested a delay of one and a half to two years, somewhat worse than his
performance in previous testing. However, an inordinate amount of erasing was noted in the previous testing,
suggesting that attainment of an average score required significant effort to compensate for visual–motor
difficulties.

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 The other expressive difficulty Sam had was a word-finding problem. He did relatively poorly in the
Comprehension–Knowledge area, which tests expressive vocabulary. On one subtest, Sam had great difficulty
naming pictures of familiar objects (5th percentile rank). However, it was clear that he often knew what the
object was but could not recall the name on demand. So, for instance, he called a faucet a “pipe,” a globe a
“model of Earth,” and a thermostat a “heat-on.”
Overall, the following was learned about Sam’s learning style. He is motivated to perform in a one-to-one
situation and, by teacher report, in small-group instructional situations. He does well when he feels successful,
and he enjoys demonstrating his prowess and does not get thrown by failure. He has good reasoning skills and
can follow an organized approach to problem solving. He learns new information best when information is
presented simultaneously in the visual and auditory modalities, because each compensates for difficulties in the
other. Although he understands meaningful information presented in both modalities, he has difficulty
scanning visual information and copying it, and he has difficulty blending sounds he has heard and retrieving
words. These difficulties, if not remediated, would be expected to interfere with learning of phonetic analysis,
mathematics computation, and written composition.

Tests of Achievement: Results

Area Standard score Grade-equivalent %ile for grade

Letter–Word Identification 76 2.0 6

Passage Comprehension 81 2.2 3

BROAD READING 77 2.0 6

Calculation 88 3.0 21
Applied Problems 103 4.0 58

BROAD MATH 96 3.4 38

Dictation 86 2.6 18

Writing Samples 97 3.3 42

BROAD WRITING 91 2.8 26

Tests of Achievement: Interpretation

Reading: Sam scored at a beginning second-grade level in reading overall, placing him at the 6th percentile
rank in relation to his grade peers. Both comprehension and word recognition scores were consistent with this
overall score. This suggests that Sam is ready for reading instruction in second-grade-level texts.
Sam had great difficulty attacking words he did not know by sight and sometimes made errors on even
simple words, which he was usually able to correct. These word identification difficulties seemed to be due to
a number of different factors. He made a number of letter identification errors; for instance, he read “is” for
“as” (he self-corrected this error) and “farest” for “fastest.” In some instances, he read the first part of the word,
but omitted or misread the ending; for instance, he read “shouldn’t” for “shoulder” and “person” for “personal.”
These errors may well be due to visual scanning difficulties. He did not use a phonetic approach, but tried to
find known words within the unknown word—an approach that might help compensate for his sound-

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blending difficulties—but this was often not effective because of the inaccuracy of his visual scanning. Thus he
read “cor-re-city” for “correctly.” When reading paragraphs, Sam used context, his good reasoning skills, and
his knowledge of the world to guess what unknown words might be, and was often able to read more difficult
words correctly. He still made many word recognition errors, but he reread sentences that did not make sense
and was then able to correct about one-third of his errors.
Sam’s comprehension of paragraphs was significantly impaired by his word recognition difficulties. He
made so many errors when reading that even after corrections, he could get little meaning out of texts above
the early second-grade level. He has the reasoning and language skills to understand the concepts of higher-
level text, but his decoding difficulties are too great.

Mathematics: Sam scored at a grade level of 3.4 overall in mathematics, or at the 38th percentile rank for
grade. However, he was much better at applying mathematical concepts to solving daily living problems (58th
percentile rank for grade) than at solving straight calculation problems (21st percentile rank). In large part,
this was due to the fact that he made many errors in calculations, which he was able to correct when told to
check his work; with corrections, he improved his calculation score to the 4.3 grade level. This level of
performance suggests significant gains from the previous testing in mathematics.
When doing calculations, Sam demonstrated a good understanding of the procedures involved in addition
and subtraction. He knew how to carry and borrow, and knew how to place decimal points. He has not yet
memorized basic math facts, but he could count on his fingers to solve basic addition, subtraction, and
multiplication facts. Sam initially scored at the 3.0 grade level in calculation because he misread four signs.
When told to check his work, he independently corrected all the errors. Thus Sam’s difficulty in visual
scanning appears to be interfering with his performance on calculation tasks.
On the Applied Problems subtest, Sam easily demonstrated basic knowledge about money, time, and
measurement. He also was able to solve word problems, correctly identifying the appropriate operation to
perform and determining which information was relevant to the solution of the problem. He was able to set
up the correct calculations on his scrap paper, and to line up and organize numbers correctly.

Writing: Sam scored at the 2.8 grade level in written language overall, or at the 26th percentile rank in
relation to grade. Again, there was a significant difference between the two subtests in this area. In a test of
the mechanics of writing and spelling, Sam scored at the 2.6 grade level, or the 18th percentile rank. In a test
that looks at sentence organization but does not penalize the student for spelling or errors in writing
mechanics, Sam scored at the 3.3 grade level, or at the 42nd percentile rank for grade.
Sam’s handwriting was neat, but he wrote somewhat awkwardly, pressing hard, writing small, and having
difficulty forming some letters. His letters tended to sink below the line, and he frequently erased or
reinforced letters. Handwriting did not appear to be fluid; it required some effort.
Sam knew how to spell some words correctly from memory, but he occasionally omitted letters. When he
did not know a word from memory, he tried a phonetic approach with little success. He spelled “comb” as
“kome,” which demonstrates a good understanding of the silent-e rule, but other attempts at phonetic spelling
showed limited knowledge of other phonetic principles.
Sam was able to write generally well-organized, complete sentences to describe pictures. He was able to
communicate the central information about a picture, despite spelling and grammatical errors. He was willing

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to produce long sentences, despite the effort it required.
Overall, Sam’s academic achievement is significantly below grade level in reading and in some aspects of
written language, including spelling and mechanics. He achieves at grade level in mathematics when he
carefully checks his work, and in the communicative aspects of writing.

SUMMARY: Sam is a child of average intellectual ability who was held back in second grade, and who is still
achieving significantly below grade level in reading and some areas of writing. He has responded
inconsistently to classroom demands over the years in terms of motivation and attention, but he has
consistently had difficulties with reading tasks. Although he can accurately understand and retain information
presented both visually and aurally, he has some specific basic psychological processing difficulties that are
interfering with his learning. He has great difficulty with sequential auditory processing, and thus has
difficulty blending sounds; he has difficulty scanning sequences of visual symbols, and thus is slow at
processing letters and numbers and tends to make omission errors; and he has difficulty integrating visual and
motor processes, so that it is hard for him to accurately copy designs and symbols without effort. Sam has a
learning disability that contributes to his academic problems and may be contributing to behavioral problems.
He needs specialized instruction to compensate for his difficulties.

RECOMMENDATIONS: The following recommendations should be considered as a whole.

1. Sam needs specialized instruction in a small-class setting of 15:1. He may also need other supportive
services. As recommended in the report by Dr. Bing, further evaluation of Sam’s visual difficulties should be
conducted to determine appropriate interventions. Also, an occupational therapy evaluation should be
conducted to determine the need for intervention for visual–motor difficulties.
2. Sam would benefit from short-term individual counseling to help him understand the reasons for his
academic difficulties and to help him take more responsibility for his behavior.
3. Sam would benefit from oral language development classroom activities to increase vocabulary and
decrease word-finding difficulties. The classroom teacher should consult with the speech and language
therapist to develop such activities.
4. Sam’s ability to use good problem-solving strategies should be supported by recognition of them and
direct instruction. When he self-monitors, self-corrects, accesses prior knowledge, and relates new
information to his previous experience, this should be acknowledged and reflected back to him to make his use
of the skills more conscious. He also should be directly instructed in such techniques.
5. Sam learns best when new information is presented in multiple modalities. Whenever possible, graphics,
demonstrations, written directions, and other visually perceived cues should accompany verbal instruction.
6. Sam needs to experience success in the classroom and should receive positive reinforcement whenever
appropriate. Classroom tasks should initially be structured so that he can succeed, and he should be given the
opportunity to practice new skills. Immediate, informed, and supportive feedback should be given.
7. Sam learns well in small groups, and small-group learning experiences should be provided whenever
possible.
8. In reading, Sam is currently ready to be instructed in second-grade-level texts. He should be directly
instructed in areas of difficulty, using a multimodality approach. Therefore, a technique such as Orton–

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Gillingham, Slingerland, or Fernald should be used to teach phonetic analysis of words. Sam’s strength in
comprehension monitoring should be supported, and he should also be taught new comprehension skills, such
as predicting, self-questioning, and previewing texts.
9. In mathematics, Sam should be taught the second-grade-level curriculum. However, he needs to be
directly taught strategies for checking his work and attending to signs.
10. In both mathematics and reading, Sam would benefit from aids for accurate visual scanning, such as
page masks.
11. In writing, Sam might benefit from learning keyboarding, which couldeventually reduce the problems
caused by his visual–motor difficulties. He should be allowed to write compositions on a voice-output word-
processing program with spell-checking and auditory prompts for misspellings, such as Write OutLoud.
12. Given Sam’s positive response to reading interventions on the Macintosh computer, Sam should
continue to work with reading software as well.
Patti Barrett, Ph.D.
School Psychologist

(b) Discussion

When the report on Sam Shay first appeared in an earlier edition of this book, we described it as “relatively
routine.” Our point was that the IDEA has become sufficiently integrated into the culture of public schools
that the preparation of such reports is now perceived as an ordinary activity within them. School psychologists
often spend most of their time in testing children referred for special education, preparing reports of their
assessments for consideration by multidisciplinary teams, and participating in team meetings where their own
and others’ observations and recommendations are discussed. Furthermore, staff and processes are present in
virtually every public school to regulate access to special education and related services, and to ensure their
delivery in individualized fashion.
However, the “routine” nature of the Shay report is not simply a matter of the frequency with which such
documents are prepared. It is also the least “forensic” report in this volume. This point is true in relation to the
report’s authorship, audience, context, and content. Although we are not aware of data supporting these
assertions, we are reasonably certain both that the psychologists undertaking IDEA-mandated assessments are
usually school employees or contractors, and that they neither define themselves as forensic psychologists nor
identify their work as forensic practice.
Moreover, we suspect that external evaluators are thrust into that role primarily because of their therapeutic
work with children in a health or mental health setting and the corollary need to integrate services. Typically,
they are perceived as allies of the school even if their time is compensated by another agency. Indeed, the
community clinician’s therapeutic services may be reconstrued as related services in an individualized
education program (IEP).
There are instances in which an IDEA process and either juvenile justice or child protection proceedings
properly intersect—so, for example, that a probation plan and an IEP are coordinated to optimize a child’s
treatment. Nonetheless, we are confident that proportionately few of the participants in multidisciplinary
teams under the IDEA are lawyers or other professionals in the legal system (e.g., probation officers).

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Similarly, few of the other participants define themselves as “forensic”; nor do they regard the
multidisciplinary team meeting as a legal proceeding. Rather, the process is considered to be “educational” and
nonadversary. Even when specific staff are assigned to coordinate the process, lead the decisionmaking, draft
the IEPs, and monitor their implementation and effectiveness, they are rarely considered to do “legal” work
(as, e.g., administrative hearing officers).
Perhaps most importantly, the content of the IDEA process is rarely conceived as forensic. The noted
reasons for referral of Sam Shay were for diagnosis and creation of an IEP with, if necessary, provision of
additional services. Moreover, the resulting evaluation was remarkably wide-ranging. Judging by the scope of
the assessment, the school psychologist interpreted her task as being one of evaluating Sam’s educational
performance in all of its dimensions. In that regard, the assessment was “routine” in its being familiar to
school and clinical psychologists in its scope and instrumentation.
Although the evaluation does not look forensic, it is important to remember nonetheless that parents have
a right to obtain a second opinion and ultimately to seek a hearing before an administrative officer if they
disagree with the team’s opinion; further appeal to a federal court is possible. Thus the report does have
significant legal implications.
In that regard, the school psychologist in the Shay case made an admirable effort to be functional in her
assessment. Using interactive interviews and appropriately normed tests, the evaluator explores each of the five
areas outlined in § 17.04 (intelligence; language and communication skills; perceptual and executive
functioning abilities; academic achievement; and behavioral, emotional, and social development), although the
report does not track these categories in that order. At the same time, however, she may have been overly
specific in her recommendations, given the implicit judgments required in assessing (1) how much specialized
education is enough and (2) the level of prediction that is possible in considering the potency of various
potential interventions. In particular, the scientific foundation for the recommendation of a class of 15
students is questionable.

* This report is a version of one provided to the authors by Lois Weithorn, Ph.D. Because the case it describes took place a good many years
ago, the report reflects the terminology for intellectual disabilities that was current at that time, as well as the assessment instruments in use at
that time.
* This report is adapted from a sample plan for reasonable accommodation described in Peter David Blanck et al., Implementing Reasonable
Accommodations Using ADR under the ADA: The Case of a White-Collar Employee with Bipolar Mental Illness, 18 MENTAL & PHYSICAL
DISABILITY L. REP. 458 (1994).
* This report was provided to the authors by Patti Slobogin, Ph.D. Some of the tests used in this evaluation have since been updated, but the
report still reflects the type of evaluation conducted under the IDEA.

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CHAPTER 20

Glossary

The glossary is divided into two parts: legal terms, and clinical and research terms. References to other terms
in the glossary are capitalized.

20.01. LEGAL TERMS

No effort is made here to define specific crimes or torts, as their definition varies from jurisdiction to
jurisdiction. For other definitions, see BLACK’S LAW DICTIONARY.

ABET. Aid; help.

AB INITIO. From the beginning; from the first act.
ABSTRACT OF RECORD. An abbreviated history of a legal case, from the initial filing to its resolution.
ACCESSORY. A person who contributes to or aids in the commission of a crime, either before or after its
commission.
ACCOMPLICE. A person who knowingly aids the principal offender in the commission of a crime.
ACQUITTAL. Used in criminal cases to designate a finding, after trial, that a defendant is not guilty of the
crime charged.
ACTUS REUS. The physical act or omission required for conviction of a particular crime; the act or omission
must be one over which the person has conscious physical control.
AD LITEM. For the suit; for the purposes of the suit. A GUARDIAN AD LITEM is a GUARDIAN
appointed to prosecute or defend a suit on behalf of a party incapacitated by infancy or otherwise.
ADJUDICATION. The judgment rendered in a criminal or civil case.
ADJUDICATORY HEARING. In juvenile court, the trial.
ADVERSARY SYSTEM. A procedural system found in the United States and some other countries, in
which each party has an opportunity to present opposing views in front of a tribunal that is not itself
responsible for conducting an investigation into the facts. To be distinguished from an INQUISITORIAL
SYSTEM.
ADVERSE WITNESS. A witness for the opposing party.
ADVISORY OPINION. A formal opinion by a court provided at the request of a legislative body or
governmental official, addressing an issue not yet raised in litigation.

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AFFIDAVIT. A written declaration or statement of facts, confirmed by oath or affirmation.
A FORTIORI. With stronger reason; much more.
AGGRAVATING CIRCUMSTANCE. In capital or determinate sentencing, a factor that, if proven, tends
to enhance the sentence. To be distinguished from MITIGATING CIRCUMSTANCE.
ALLOCUTION. Court’s formal inquiry of a prisoner as to why sentence should not be pronounced.
AMICUS CURIAE. Literally, a “friend of the court”; a person or organization permitted by the court to
provide information to the court relevant to the subject matter before it.
ANSWER. A pleading in which the defendant in a civil case replies to the allegations made in the plaintiff’s
COMPLAINT.
APPELLANT. The party appealing a decision or judgment.
APPELLATE COURT. A court that reviews the decision of a lower court, focusing on that court’s rulings
on the proper law to apply to the case and the proper interpretation of that law. To be distinguished from a
trial court.
APPELLEE. The party against whom an appeal is taken.
APPREHENSION. In juvenile court, arrest.
A PRIORI. From the cause to the effect; from what goes before.
ARRAIGNMENT. The stage of the criminal process at which a defendant is required to plead in court to a
criminal charge.
ATTORNEY–CLIENT PRIVILEGE. A legal doctrine that permits a person to refuse to disclose, and to
prevent others from disclosing, communications between the person and his or her lawyer (or the lawyer’s
agent) that are made during the course of their professional relationship. The privilege is deemed waived by
the client under circumstances described in § 4.02.
AUTOMATISM. A defense to crime. Lack of conscious control of one’s physical acts. See § 8.03(a).

BAIL. The release of an arrested person in exchange for security, usually money provided by a bail
bondsperson, who thereby becomes responsible for the released person’s return; designed to ensure that the
person will appear in court on a specified date.
BAILIFF. A court official who keeps order in the courtroom and is “in custody” of the jury.
BENCH TRIAL. A nonjury trial.
BENCH WARRANT. A document issued by the court, or “bench,” authorizing arrest of a person or seizure
of property.
BEST INTERESTS. An amorphous term, used particularly in the juvenile and guardianship contexts,
connoting the optimal arrangement or action under the totality of the circumstances. See §§ 11.02(b),
16.02(b).
BEYOND A REASONABLE DOUBT. A STANDARD OF PROOF required to be met by the
prosecution in criminal trials for each element of the crime charged; normally defined as a belief to a moral

885
 certainty that does not exclude all possible or imaginary doubt, but that is of such convincing character that
a reasonable person would not hesitate to rely and act upon it in the most important of his or her own
affairs.
BIFURCATED TRIAL. A two-phase trial. One type of bifurcated trial is that in which guilt is determined
in the first phase and sanity in the second phase. Another variant used, particularly in capital proceedings, is
a first phase determining guilt and a second phase devoted to deciding what penalty should be imposed.
BIND OVER. To certify that there is probable cause for grand jury or trial proceedings.
BONA FIDE. In or with good faith; honestly.
BRANDEIS BRIEF. A brief using social science research to buttress its arguments. So called because the
first Supreme Court case in which such a brief was submitted was drafted by Louis Brandeis, later a
Supreme Court Justice.
BRIEF. A written argument filed with the court by counsel, almost always required in appellate cases,
occasionally at the trial level.
BURDEN OF PROOF. The necessity of proving a fact or facts in dispute. It consists of both the “burden of
production” (the obligation of a party to provide sufficient evidence on a certain issue to avoid a
DIRECTED VERDICT by the judge on that issue) and the “burden of persuasion” (the obligation of a
party to persuade the factfinder of the truth of an issue, to the degree of certainty required by the
STANDARD OF PROOF).

CAPIAS. Literally, “that you take”; a blanket term referring to several types of writs that require a state official
to take the person of the defendant into custody.
CAUSE OF ACTION. A legal claim.
CERTIORARI. A writ issued by a court to a lower court requiring it to produce a certified record of a case
the superior court wishes to review. This is the primary method the United States Supreme Court uses to
review cases.
CLEAR AND CONVINCING PROOF. A measure of persuasion greater than a mere
PREPONDERANCE OF EVIDENCE but less than BEYOND A REASONABLE DOUBT; defined
as proof that produces a firm belief or conviction as to the proposition sought to be established.
CIRCUIT COURTS OF APPEAL. In the federal judicial system, the intermediate courts of appeal. See §
2.03(a).
COMMON LAW. Judge-made law, as opposed to constitutional, statutory, or administrative law. See
generally § 2.02(d).
COMMUTATION. A reduction in punishment, as from a death sentence to life imprisonment.
COMPETENCE OR COMPETENCY. The capacity to perform a given function with a degree of
rationality; the requisite degree depends on the function to be performed. Chapters 6, 7, and 11 all deal
with various types of competence.

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COMPLAINT. A pleading in which the plaintiff in a civil case asserts allegations against a named
defendant.
CONCURRENT SENTENCE. A sentence served simultaneously with sentences for other crimes. To be
distinguished from consecutive or CUMULATIVE SENTENCE.
CONSERVATORSHIP. A guardianship (see GUARDIAN) that in some states is limited to control over
the ward’s fiscal affairs, and in others (e.g., California) permits control over the ward’s physical person. See
§ 11.02(a).
CONTEMPT. Willful disobedience to or disrespect of a court or legislative body, which may result in fines,
incarceration, or other penalties designed to force the action desired by the condemning agency.
CONTINUANCE. A postponement, usually of trial.
CORAM NOBIS. A writ whose purpose is to correct a judgment made by the same court issuing the writ.
CORPUS DELICTI. The body (elements) of a crime; also, the material substance upon which a crime has
been committed (e.g., a corpse, a burned-down house).
COUNT. A single allegation in a civil pleading, or a single charge in a criminal indictment or information.
COURT OF RECORD. A court whose proceedings are transcribed with a view toward appeal. To be
distinguished from a court not of record, in which no transcription is taken.
CRIMINAL RESPONSIBILITY. One’s accountability under the criminal law for one’s acts; often equated
with INSANITY, but including notions underlying the AUTOMATISM doctrine and other legal
doctrines as well. See Chapter 8.
CROSS-EXAMINATION. The questioning of a witness by an opposing party.
CUMULATIVE SENTENCE. A sentence consisting of two or more sentences imposed against one
offender for separate crimes, to be served consecutively.

DECREE. A decision or order of the court.

DE FACTO. In fact; actually. To be distinguished from DE JURE.
DEFAULT. When the defendant in a civil action fails to plead within the time allowed or fails to appear at
trial.
DEFENDANT. The accused in a criminal case; the alleged tortfeasor (wrongdoer) in a TORT case.
DE JURE. Legitimate, lawful, but not necessarily in fact. To be distinguished from DE FACTO. De jure
incompetence is incompetence as a matter of law (as with a child), even if the person may not be
incompetent in fact.
DEMURRER. In a civil action, a defense to the effect that the opposing party has failed to state a claim that
is recognized by the law.
DEPOSITION. A proceeding in which a witness is questioned or “deposed,” out of court, usually by an
opposing party. The deposition is transcribed for use both in preparation for trial and at the trial itself,
where it may be entered in evidence in the witness’s absence or used to impeach the witness if he or she

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 testifies. See §§ 2.04(b), 18.06(a).
DETENTION HEARING. In juvenile court, the bail hearing.
DETERMINATE SENTENCE. A sentence whose length is established at the time of sentencing. To be
distinguished from an INDETERMINATE SENTENCE. See generally § 9.03.
DICTUM (pl. DICTA). A statement in a judicial decision that does not have the force of law or precedent
because the court does not rely on it to decide the case.
DIMINISHED CAPACITY. A doctrine permitting clinical testimony relevant to MENS REA. See §
8.03(b).
DIMINISHED RESPONSIBILITY. Although sometimes confused with DIMINISHED CAPACITY,
the term actually refers to a degree of mental impairment short of that necessary to meet the INSANITY
test. It does not negate MENS REA, but it may be relevant at trial to reduce the grade of the offense, or,
more likely, relevant at sentencing to mitigate the severity of punishment. Also known as “partial
responsibility.” See § 8.03(b).
DIRECTED VERDICT. A verdict entered by the trial judge in a jury trial after a determination that the
jury could not rationally decide the case any other way.
DIRECT EXAMINATION. Questioning of a witness at trial by the party calling the witness.
DISCOVERY. The process through which parties to an action find out, or “discover,” facts known to each
other or other relevant parties. Discovery devices include but are not limited to DEPOSITIONS,
INTERROGATORIES, and physical and mental examinations.
DISPOSITIONAL HEARING. In juvenile court, the sentencing hearing.
DISSENT. An opinion in an appellate judicial decision that disagrees with the result in the court’s, or
majority, opinion.
DOUBLE JEOPARDY. The prohibition, found in common law and constitutional law, against multiple
trials or punishments for the same offense.
DUE PROCESS. The constitutional guarantee found in the Fifth and Fourteenth Amendments that the
government will act fairly when it attempts to deprive a person of life, liberty, or property.
DURHAM RULE. A test for INSANITY. See § 8.02(b).

EMANCIPATED MINOR. A minor who, as a result of exhibiting general control over his or her life, is
found to be no longer in need of the care or custody of his or her parents or guardians and is thus accorded
the rights of an adult.
ENJOIN. The act of requiring a person, by an injunction issued by a court, either to perform some act or to
abstain or desist from some act.
EXCLUSIONARY RULE. A judicially created remedy designed to exclude illegally obtained evidence from
a criminal trial.
EX PARTE. By or for one party; put another way, done in the absence of interested parties. For example, if

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 the court issues an ex parte order, it is issuing an order without having heard argument from the party or
parties directly affected.
EXPERT WITNESS. A witness who, by virtue of specialized knowledge or skill, can provide the factfinder
with facts and inferences drawn from those facts that will assist the factfinder in reaching a conclusion on
the issue addressed by the witness. A lay witness is not generally permitted to offer opinions about the
evidence; an expert witness is. See generally § 1.04.
EX POST FACTO. After the fact.

FELONY. An offense punishable by death or imprisonment in the penitentiary. To be distinguished from a

MISDEMEANOR.
FIDUCIARY. A person, such as a trustee or GUARDIAN, whose duty is to act in the BEST INTERESTS
of those whose property or person is held to be in his or her care.
FRYE TEST. A test governing the admissibility of scientific evidence announced in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923), stating that such evidence must be derived from theories or procedures that
are “generally accepted” by the relevant scientific community before it may be admitted into evidence. See §
1.04(c).

GRAND JURY. See JURY.

GRAVAMEN. The substance of an allegation.
GUARDIAN. A person lawfully invested with the power to and charged with the duty of making personal
and/or financial decisions for a person who, due to some deficiency, is considered incapable of doing so.
GUARDIAN AD LITEM. A person appointed by a court to represent the BEST INTERESTS of a minor or
an incapacitated person who is involved in litigation.
GUILTY BUT MENTALLY ILL. A verdict in criminal cases that first enjoyed widespread popularity in
the early 1980s, providing the jury with a compromise between a guilty verdict and a verdict of not guilty by
reason of insanity. See § 8.03(f).

HABEAS CORPUS. Literally, “you have the body.” Typically, a writ directing a state official in charge of
detaining a person to produce that person in court, so as to determine whether his or her liberty has been
deprived in violation of due process.
HARMLESS ERROR. An error that does not require the reversal of judgment.
HEARSAY. Statements or acts described by a witness who did not directly perceive or hear them. Hearsay is
presumptively inadmissible unless the maker of the statement (or the doer of the act) can be subjected to

889
 cross-examination about the circumstances under which the statement (or act) occurred. However, the rules
of evidence recognize many exceptions to the hearsay prohibition, including the LEARNED TREATISE
EXCEPTION, the business records exception, the statement-against-interest exception, the dying-
declaration exception, and the excited-utterance exception. Most of these exceptions represent situations in
which the law has assumed that the out-of-court statements will be reliable, or that the information in the
statement will not be available from another source, or both. See § 3.07(a).
HOLOGRAPHIC WILL. A will written and signed by the testator, but unwitnessed. Admitted to
PROBATE in approximately half the states.
HOSTILE WITNESS. A witness who is subject to cross-examination by the party who called him or her
because he or she has evidenced antagonism toward that party during direct examination.
HYPOTHETICAL QUESTION. A question composed of proven or assumed facts designed to elicit an
opinion from an expert witness.

IMPEACHMENT. An attack on the credibility of a witness.

IN CAMERA. Literally, “in chambers”; thus out of the presence of the jury.
INCOMPETENCE. See COMPETENCE.
INDETERMINATE SENTENCE. An indefinite sentence, with the minimum term usually set at the time
of sentencing but the maximum term left up to parole authorities. To be distinguished from
DETERMINATE SENTENCE. See generally § 9.03.
INDICTMENT. A document issued by the grand jury accusing the person named of a criminal act.
INFORMATION. A document issued in the absence of an INDICTMENT by a state official, usually the
prosecutor, accusing the person named of a criminal act.
INFORMED CONSENT. Consent to a treatment that is based on adequate knowledge about the risks and
benefits of the treatment, is not coerced, and is given while the individual is COMPETENT to do so. See
§ 11.03(a).
INJUNCTION. An order from a court requiring a person to act or to abstain or desist from acting.
IN PARI DELICTO. In equal fault.
IN PERSONAM. With reference to a person.
IN REM. With reference to things, property.
INQUISITORIAL SYSTEM. A procedural system in which the judge is the principal investigator as well as
decisionmaker. To be distinguished from ADVERSARIAL SYSTEM.
INSANITY. A lack of responsibility for one’s acts due to MENTAL DISEASE OR DEFECT. Incorrectly
often used to designate INCOMPETENCE. The various tests for insanity are discussed in § 8.02(b).
INSTRUCTION. An explanation of the law by the judge to the jury, designed to guide the jury in its
deliberations.
INTAKE HEARING. In juvenile court, a preliminary hearing for the purpose of determining what

890
 disposition of a child charged with a delinquency or status offense is appropriate; dispositions range from
diversion from the juvenile court system to adjudication (trial). Usually initiated by a probation or “intake”
officer. See § 14.03(a)(3).
INTENT. Mental state ranging, in the law, from purpose to awareness of the consequences or risks of one’s
actions. See MENS REA.
INTERROGATORIES. Written questions drafted by one party to a civil action and served on another party
to the action, who then must answer the questions truthfully or state a valid reason why they cannot be
answered.
INTESTATE. Without a will.

JOINT CUSTODY. Shared parental authority to make decisions about children. It does not necessarily
include shared physical custody.
JUDICIAL NOTICE. Recognition by the court of a fact not proven by evidence.
JURY. A group of persons selected through VOIR DIRE to hear evidence. The PETIT JURY, composed of
from 6 to 12 members, hears evidence at civil and criminal trials and returns a verdict. The GRAND
JURY, composed of from 12 to 24 members in most states, investigates specific criminal charges brought to
it by the prosecutor and issues an indictment if it finds probable cause.
JUVENILE. In most states, a person under the age of 18.

LEADING QUESTION. A question that suggests its answer; technically prohibited on direct examination.
LEARNED TREATISE EXCEPTION. An exception to the HEARSAY rule that permits an examining
attorney to introduce into evidence the text of a book which is recognized as an authority, either by the
court or by the witness being examined. See § 18.06(e)(6).
LEAST RESTRICTIVE ALTERNATIVE. The concept that when the government is authorized to
infringe upon individual liberty, it must do so in the least drastic manner possible. See § 10.03(g).
LEGAL FICTION. An assumption known to be false or of questionable validity but adopted by courts to
further legal analysis or promote certain policies, as in the assumption that a corporation is a “person” for
purposes of criminal law, or the assumption that a family always acts in a child’s BEST INTERESTS.
LIABLE. In a civil case, a finding by the factfinder that the plaintiff has met the BURDEN OF PROOF on
his or her claim.
LITIGATION. A lawsuit.
LIVING WILL. Procedure by which competent persons can direct their doctors to treat them in a prescribed
way if they become incompetent. See § 11.02(e).

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MALPRACTICE. The failure to exercise the degree of skill in treatment or diagnosis customarily expected
of a professional.
MANDAMUS. A writ commanding a government official to take action.
MANSLAUGHTER. The unlawful killing of another without “malice.” Voluntary manslaughter is reckless
or impulsive, but still intentional, homicide; involuntary manslaughter is negligent homicide.
MATERIAL. Relevant.
MENS REA. The specific state of mind (e.g., purpose, knowledge, recklessness, or negligence) required for
conviction of a crime; “guilty mind.” See § 8.03(b).
MENTAL DISEASE OR DEFECT. The threshold mental condition for the INSANITY defense, and in
some states for the DIMINISHED CAPACITY defense. See §§ 8.02(c)(1), 8.03(b).
MENTAL STATE (CONDITION) AT THE TIME OF THE OFFENSE. Those aspects of a criminal
defendant’s functioning that are relevant to INSANITY, MENS REA, AUTOMATISM, or
DIMINISHED RESPONSIBILITY.
MISDEMEANOR. A category of offense less serious than FELONY; generally punishable by fine or
imprisonment in jail, as opposed to the penitentiary, for a year or less.
MITIGATING CIRCUMSTANCE. In capital or determinate sentencing, a factor that, if proven, tends to
reduce the sentence. More generally, any factor that tends to reduce culpability at trial or at sentencing.
MOOT. Undecided; in judicial decisions, a moot question is one that does not arise under the existing facts
of the case.
MOTION. An application for a ruling or order from the court, either verbally or in writing.
MOTION IN LIMINE. A motion to limit or prohibit the introduction of certain evidence, usually triggering
a pretrial hearing or removal of the jury to determine the admissibility issue.
MURDER. The unlawful killing of a human being with “malice” or purpose.

NEGLIGENCE. An act or failure to act that the “reasonable person” would not have committed or have
failed to commit.
NO BILL. A finding by the grand jury that no indictment should be issued; also known as “not a true bill.”
NOLLE PROSEQUI. A formal entry upon the record by the plaintiff in a civil suit or the prosecutor in a
criminal case declaring that he or she “will no[t] further prosecute” the case; however, in criminal cases, this
does not prevent reprosecution at some later time.
NOLO CONTENDERE. A pleading by a criminal defendant meaning “I will not contest” the charge. Unlike a
plea of guilty, such a plea usually cannot be used against the person in subsequent proceedings.
NON COMPOS MENTIS. Not of sound mind.
NUNC PRO TUNC. Having retroactive effect.

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OBITER DICTUM. A remark made incidentally or in passing by a judge. See DICTUM.
OBJECTION. A formal exception to a statement made by a witness, lawyer, or judge, or a procedure
followed by a lawyer or judge, designed to have the statement of a witness or lawyer stricken from the
record or the procedure aborted. If the objection is “overruled,” as opposed to “sustained,” it may be
“preserved” by the objecting party in order to create a record for appellate review.
OPINION TESTIMONY. Testimony as to what the witness infers with respect to facts in dispute, as
distinguished from personal knowledge of the facts themselves. Generally, only expert witnesses may offer
opinions.

PARENS PATRIAE. The authority of the state to act as “parent”; traditionally exercised over children, persons
with mental illness, and persons with intellectual disabilities.
PAROLE. Conditional release of a convict before the expiration of his or her sentence; failure to abide by
conditions of parole will result in the convict’s serving the remainder of the sentence.
PARTIES. Those persons or entities involved in the litigation, as defined by the pleadings in civil cases and
the INFORMATION or INDICTMENT in criminal cases.
PENDENTE LITE. Pending the litigation of a case.
PEREMPTORY CHALLENGE. The right, exercisable at VOIR DIRE, to remove a person from
participation on the jury for no stated reason; each side to a dispute is limited to a certain number of
peremptory challenges. To be distinguished from “for-cause” challenges, which are unlimited in number
but which require a legally recognized reason (such as evidence that the potential juror has a personal
relationship with the defendant) before they can be exercised.
PETIT JURY. See JURY.
PLAINTIFF. In civil cases, the person who initiates the litigation by filing a complaint.
PLEA BARGAINING. The process by which a criminal defendant seeks a reduced charge or a
recommended sentence from the prosecutor in exchange for a plea of guilty.
POLICE POWER. The authority of the state to act to protect the public welfare; punishing criminal
offenders is the primary exercise of this authority.
POLLING THE JURY. Asking the individual members of the jury after its verdict has been announced how
they voted.
POWER OF ATTORNEY. An instrument authorizing another to act. Such an instrument expires when
the delegator becomes incompetent, unless it is a “durable” power of attorney. See § 11.02(e).
PRECEDENT. A judgment of a court that is viewed as authority for deciding similar cases similarly. See
STARE DECISIS.
PRELIMINARY HEARING. Any of a number of different pretrial hearings in the criminal process
concerning issues such as probable cause to detain, bail, and whether a PRIMA FACIE case against the
defendant exists. See § 2.04(a)(1).

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PREPONDERANCE OF EVIDENCE. The standard of proof in civil cases, requiring sufficient evidence
to show that a given proposition is more probable than not.
PRESUMPTION. An inference of fact or law that must be drawn by the factfinder upon proof of a predicate
fact, unless other evidence rebuts the inference. An “irrebuttable presumption” is one that cannot be so
rebutted once the predicate fact is shown. For example, under common law, there was an irrebuttable
presumption that children under the age of 7 cannot be criminally responsible, and a rebuttable
presumption that children between the ages of 7 and 14 are not responsible. In each case, age is the
predicate fact that must be proven.
PRESUMPTION OF INNOCENCE. A presumption that a person charged with an offense is innocent,
which can be rebutted through adequate proof of guilt. Somewhat different from the normal
PRESUMPTION, since no predicate fact need be proven in order to benefit from the “presumption.”
PRIMA FACIE. Sufficient proof to establish a claim before challenge by the opposing side.
PROBABLE CAUSE. A reasonable ground for belief in the truthfulness of a proposition. Most commonly
used in the criminal law to refer to the degree of certainty required for issuing an arrest or search warrant, or
for detaining an arrested person.
PROBATE. The process of certifying the validity of a will and distributing its bequests.
PROBATION. The suspension of a sentence at the time of sentencing on the condition that the offender
abide by conditions set by the court. If these conditions are violated, the offender may be required to serve
the remainder of the sentence.
PROSECUTOR. An official of the state responsible for charging persons with crime and representing the
state against those so charged at pretrial and trial proceedings.
PROXIMATE CAUSE. Legal cause; generally refers to the event or occurrence closest in time to the injury
without which the injury would not have occurred. See § 12.03(a)(3).
PSYCHOTHERAPIST (PSYCHOLOGIST)–PATIENT PRIVILEGE. A legal doctrine that permits,
under limited circumstances, the patient to prevent disclosure of any communication between the patient
and his or her treating clinician that was made during treatment. See § 4.04(c).

QUANTUM MERUIT. As much as is deserved.

QUASH. To annul.
QUID PRO QUO. Literally, “what for what”; in law, something for something.

RATIO DECIDENDI. The principal reason for a court’s opinion.

REBUTTAL. The introduction of evidence attempting to contradict evidence presented by the opposing
side.
RECROSS-EXAMINATION. Questioning of a witness by the party that cross-examined the witness;

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 follows REDIRECT EXAMINATION.
REDIRECT EXAMINATION. Questioning of a witness by the party that questioned the witness on
DIRECT EXAMINATION; follows CROSS-EXAMINATION. Often designed to “rehabilitate” the
witness or to clarify his or her answers during cross-examination.
REGULATIONS. Rules of law promulgated by government agencies, as opposed to STATUTES, passed by
legislatures.
RES IPSA LOQUITUR. The thing speaks for itself.
RES JUDICATA. A matter or case that has been decided. A final decision not subject to review.
RESPONDENT. In appellate practice, the party responding to the appeal. In civil commitment and
delinquency proceedings, the party subject to commitment and thus analogous to DEFENDANT.

SCIENTER. Knowingly; having knowledge.

SEARCH WARRANT. A written order issued by a magistrate or judge authorizing search of the named
premises for the named items.
SELF-DEFENSE. A justification for a criminal act when it is based on a (reasonable) belief that one is in
danger of immediate harm, and when it is in proportion to the perceived danger.
SEQUESTRATION. The act of barring from the courtroom a witness or the jury, so as to prevent the
witness or the jury from hearing evidence. Also, the act of prohibiting the jury from reading or observing
media accounts of a trial.
SERVICE. The exhibition or delivery of a writ, notice, or injunction by an authorized individual to the
person named in the document.
SINE QUA NON. An indispensable requirement.
SOCIAL AUTHORITY. A phrase coined by John Monahan and Laurens Walker to refer to social science
used to make law, analogous to the phrase “legal authority.” An example of social authority would be the
use of research about clinical predictions of dangerousness to help determine whether the law ought to
impose liability on therapists who do not take reasonable steps to prevent the harm caused by their patients.
SOCIAL FRAMEWORK. A phrase coined by John Monahan and Lauren Walker to refer to the use of
general conclusions from social science research in determining factual issues in a specific case (e.g.,
syndrome evidence, profile evidence, and testimony based on research about eyewitness accuracy).
STANDARD OF PROOF. The measure of proof that the party with the BURDEN OF PROOF must
meet, as in proof by a PREPONDERANCE OF EVIDENCE, proof by CLEAR AND CONVINCING
EVIDENCE, or proof BEYOND A REASONABLE DOUBT.
STANDING. The right to litigate a given issue, usually dependent on having a property interest or some
other substantial interest that might be affected by legal resolution of the issue.
STARE DECISIS. The legal principle stating that the legal rules expounded in decided cases govern
subsequent cases; designed to ensure the consistency of legal rules.

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STATUTE. Law passed by a legislature and codified; to be distinguished from REGULATIONS or
COMMON LAW.
STAY. A stopping of a judicial proceeding by order of the court.
STIPULATION. An agreement by attorneys on opposing sides regarding a procedural or substantive matter
involved in the litigation between the two sides. To be binding, it must be agreed to by the attorneys’
clients.
SUA SPONTE. At the court’s initiative.
SUBPOENA. A process, or document, requiring a witness to appear and give testimony.
SUBPOENA DUCES TECUM. A process, or document, requiring a witness or other person to produce
named documents or records at trial or at another proceeding.
SUI GENERIS. Unique.
SUI JUDICE. Pending decision before a court.
SUMMONS. A writ directing the sheriff or other proper officer to notify the person named that an action
has been commenced against him or her in the court that issued the writ, and that the person is required to
appear there on the named day and answer the complaint made against him or her.

TARASOFF. A California court decision holding liable therapists who fail to take steps to prevent harm by
patients they know or should have known are dangerous. See § 4.04(b).
TENDER-YEARS PRESUMPTION. The PRESUMPTION, still recognized in some jurisdictions, that
custody of children of “tender years” (i.e., below the age of two) is best given to the mother. See § 16.02(a).
TESTAMENTARY CAPACITY. Capacity to execute a will. See § 11.05.
TESTIMONIAL CAPACITY. The capacity to testify, usually defined as the ability to observe and
remember events and to understand the oath requiring that testimony be truthful. See § 7.07.
TESTIMONY. Evidence given by a witness under oath, as distinguished from written or other tangible
evidence.
TORT. An injury or wrong, committed intentionally or negligently, to the person or property of another.
The act constituting a tort may also be a crime. See § 12.03.
TRANSCRIPT. The official record of judicial proceedings.
TRANSFER HEARING. In juvenile court, the hearing to determine whether a juvenile should be tried in
adult court. Also called a “waiver hearing.” See § 14.04(b).
TRIAL DE NOVO. A separate, totally “new” trial; most commonly applied to the trial held in a court of
record when a criminal defendant appeals the result in a court not of record.
TRUE BILL. The finding by a grand jury that a criminal indictment is warranted.

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ULTRA VIRES. Beyond the scope of one’s authority.
UNDUE INFLUENCE. Influence that causes a person not to act of his or her own free will.
UTTER. To circulate (e.g., a forged check).

VENIRE. The group of individuals from which jurors are selected.

VENUE. The political division in which a court sits, and which thus determines which cases it may hear.
VERDICT. The final judgment of the judge or jury in a criminal or civil case.
VICARIOUS LIABILITY. Indirect legal liability for the acts of someone under one’s control. A doctor may
be vicariously liable for the acts of his or her employees.
VOIR DIRE. An examination of a prospective juror to determine whether he or she should serve. Also, a
pretrial examination of a witness to determine whether he or she is competent or possesses the
qualifications to testify, or whether the information the witness has to offer is admissible.

WAIVER. The relinquishment of a right. If the right is of constitutional dimensions, it generally may be
waived only under circumstances that are shown to lead to a knowing, intelligent, and voluntary decision.
WAIVER HEARING. See TRANSFER HEARING.
WARRANT. A writ issued by a magistrate or judge in a criminal case authorizing an arrest or a search. See
SEARCH WARRANT.
WITNESS. One who testifies as to what he or she has seen or heard.
WRIT. An order issuing from a court requiring the performance of a specified act, or giving authority to have
it done.

20.02. CLINICAL AND RESEARCH TERMS

Many of the definitions in this section are adapted from the American Psychiatric Association’s AMERICAN
PSYCHIATRIC GLOSSARY (8th ed. 2003). Although some psychiatric diagnoses are defined, official definitions
should be sought from the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS (5th ed. 2013), commonly called DSM-5. For more detailed description of statistical
techniques, see D.W. BARNES, STATISTICS AS PROOF: FUNDAMENTALS OF QUANTITATIVE EVIDENCE
(1983).

ABREACTION. Emotional release or discharge after recalling a painful experience that has been repressed
because it was consciously intolerable.

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ABULIA. A NEUROLOGICAL DEFICIT evidenced by lack of will or motivation, as with an inability to
make decisions or set goals.
ACTING OUT. Expressions of emotional conflicts or feelings in actions rather than words. The person is
often not aware of the meaning of such acts.
ACUTE CONFUSIONAL STATE. An acute stress reaction to new surroundings or new demands,
common in adolescence; a loss of memory or orientation, usually associated with amnesia and clouding of
consciousness.
ADDICTION. Physiological dependence on a chemical substance, such as narcotics, alcohol, and most
sedative drugs.
ADJUSTMENT DISORDER. Maladaptive reactions to identifiable life events or circumstances. The
symptoms generally lessen as the stress diminishes or as the person adapts to the stress.
AFFECT. The outward manifestation of a person’s feelings, tone, or mood. “Affect” and “emotion” are
commonly used interchangeably. “Blunted” or “flat” affect means the absence or near-absence of expression;
“inappropriate” affect means discordance of voice and movements with the content of the person’s speech or
ideas; “labile” affect means repeated, rapid, or abrupt shifts in expression.
AGNOSIA. A NEUROLOGICAL DEFICIT evidenced by failure to recognize objects despite ability to
see.
AKATHISIA. Motor restlessness ranging from a feeling of inner disquiet, often localized in the muscles, to
inability to sit still or lie quietly. A side effect of some older ANTIPSYCHOTIC DRUGS.
AKINESIA. A state of motor inhibition; reduced voluntary movement. A side effect of some older
ANTIPSYCHOTIC DRUGS.
ALIENATION. The estrangement felt in cultural settings one views as foreign, unpredictable, or
unacceptable.
ALIENIST. Obsolete term for a psychiatrist who testifies in court about a person’s sanity or mental
competence.
ALOGIA. Literally, speechlessness. Most commonly used to refer to the lack of spontaneity in speech and
diminished flow of conversation that occur in SCHIZOPHRENIA.
AMERICAN BOARD OF FORENSIC PSYCHOLOGY. A group of professionals who administer and
grade the certification examination in forensic psychology. Questions about the Board can be addressed to
600 Market Street, Suite 201, Chapel Hill, N.C. 27516, or can be submitted by accessing the Board’s
website (http://www.abfp.com or http://www.abpp.org). To be distinguished from the American Academy
of Forensic Psychology, which conducts seminars and training programs, and the American Psychology–
Law Society, which publishes a journal and organizes conferences, and has a website
(http://www.apadivisions.org/division-41).
AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY. A group of 16 physicians that
arranges, controls, and conducts examinations to determine the competence of specialists in various
subspecialties of psychiatry and neurology. The group consists of five physicians from the AMERICAN
PSYCHIATRIC ASSOCIATION, four from the American Neurological Association, three from the

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 Section Council on Psychiatry of the American Medical Association, two from the American Academy of
Neurology, and two from the Section Council on Neurology of the American Medical Association. The
Board’s website has a section for those wishing to become certified in forensic psychiatry
(https://www.abpn.com/become-certified/taking-a-subspecialty-exam/forensic-psychiatry).
AMERICAN PSYCHIATRIC ASSOCIATION. The leading national professional organization in the
United States for PSYCHIATRISTS. Its headquarters are at 1000 Wilson Boulevard, Arlington, VA
22209-3901. Its forensic component is the American Academy of Psychiatry and the Law, headquartered
at 1 Regency Drive, Bloomfield, CT 06002. The American Psychiatric Association’s website is at
http://www.psych.org.
AMERICAN PSYCHOLOGICAL ASSOCIATION. The leading national professional organization in
the United States for PSYCHOLOGISTS. Its headquarters are at 750 First Street, N.E., Washington,
DC 20002-4242. Its forensic component is the American Psychology–Law Society. The American
Psychological Association’s website is at http://www.apa.org.
AMNESIA. Partial or total loss of memory. Some subcategories of amnesia refer to the etiology of the
memory loss. “Psychogenic” amnesia refers to memory failure secondary to stressful emotional experiences
that “cause” the person to be unable to remember certain events; other causes of amnesia include physical
trauma (e.g., a blow to the head), chemical intoxication (e.g., alcohol blackouts), or disease processes (e.g.,
amnesia associated with epileptic seizures). Other subcategories refer to the period in time for which
memory is impaired relative to the occurrence of a significant event (e.g., head trauma; see
ANTEROGRADE). Still other subcategories refer to the type of cognitive function that accounts for the
memory impairment. “Registration” amnesia refers to memories not available because, at the time the
events occurred, the individual’s mental state would not permit the permanent registration and storing of
memory traces (e.g., severe intoxication); “recall” amnesia implies that the memory traces are intact but that
other factors interfere with their retrieval. Recall that is sketchy or patchy may be referred to as “partial” or
“selective” amnesia.
AMPHETAMINES. A group of chemicals that stimulate the cerebral cortex of the brain; often misused by
adults and adolescents to control normal fatigue and to induce euphoria.
ANALYSAND. A patient in psychoanalytic treatment.
ANALYSIS OF VARIANCE (ANOVA). A widely used statistical procedure for determining the
significance of differences obtained on an experimental variable studied under two or more conditions.
Differences are commonly assigned to three aspects: the individual differences among the subjects or
patients studied; group differences, however classified (e.g., by sex); and differences according to the various
treatments to which the subjects have been assigned. The method can assess both the main effects of a
variable and its interaction with other variables that have been studied simultaneously.
ANAMNESIS. The developmental history of a patient and of his or her illness, especially recollections.
ANTABUSE (DISULFIRAM). A drug used in treatment of alcoholism to create an aversive response to
alcohol.
ANTEROGRADE. Amnesia for events occurring after a significant point in time. To be distinguished from
RETROGRADE, which is defined as impairment in memory for events occurring prior to a significant

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 point in time.
ANTIPARKINSONIAN DRUGS. Pharmacological agents that ameliorate symptoms of
PARKINSONISM. These agents are used to combat the untoward Parkinson-like and
EXTRAPYRAMIDAL effects that may be associated with treatment with PHENOTHIAZINE drugs
and other older ANTIPSYCHOTIC DRUGS.
ANTIPSYCHOTIC DRUGS. Drugs used to control psychosis. See PHENOTHIAZINE
DERIVATIVES and ATYPICAL MEDICATIONS.
ANTISOCIAL PERSONALITY. See PERSONALITY DISORDERS.
APHASIA. A NEUROLOGICAL DEFICIT evidenced by loss of a previously possessed facility of
language comprehension or production that cannot be explained by sensory or motor defects or by diffuse
cerebral dysfunction.
ANOMIC OR AMNESTIC APHASIA. Loss of the ability to name objects.
BROCA’S APHASIA. Loss of the ability to express language.
WERNICKE’S APHASIA. Loss of the ability to comprehend language, coupled with production of
inappropriate language.
APHONIA. An inability to produce normal speech sounds, due to either organic or psychological causes.
APPERCEPTION. Perception as modified and enhanced by one’s own emotions, memories, and biases.
APRAXIA. A NEUROLOGICAL DEFICIT evidenced by loss of a previously possessed ability to perform
skilled motor acts, not due to weakness, abnormal muscle tone, or elementary incoordination.
ATAXIA. A NEUROLOGICAL DEFICIT evidenced by failure of muscle coordination; irregularity of
muscle action.
ATTENTION-DEFICIT/HYPERACTIVITY DISORDER (ADHD). A persistent pattern of
inattention and/or hyperactivity–impulsivity that is more frequently displayed and more severe than is
typically observed in individuals at a comparable level of development. Some symptoms must have been
present before age seven years, in at least two settings (e.g., at home and at school or work), and there must
be clear evidence of interference with developmentally appropriate social, academic, or occupational
functioning.
ATYPICAL MEDICATIONS. Although there is some disagreement regarding the formal definition of
atypical medication, this term is generally used to describe “newer” medications (i.e., those produced since
the late 1980s) that are used to treat psychotic-spectrum disorders, including schizophrenia. The
medications, when compared to earlier types, appear to treat more effectively the symptoms of psychosis
while having fewer side effects. Brand names include Zyprexa, Seroquel, Risperdal, Geodon, Abilify, and
Clozaril.
AUTISM. A DEVELOPMENTAL DISABILITY caused by a physical disorder of the brain, appearing
during the first three years of life. Symptoms include disturbances in physical, social, and language skills;
abnormal responses to sensations; and abnormal ways of relating to people, objects, and events.
AUTOPLASTIC. Referring to adaptation by changing the self.
AVERSION THERAPY. A therapy in which undesirable behavior is paired with a painful or unpleasant

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 stimulus, resulting in the suppression of the undesirable behavior.

BARBITURATES. Drugs that depress the activities of the central nervous system; primarily used either for
sedation or for treatment of EPILEPSY.
BASE RATE. The frequency of occurrence of a particular phenomenon in a specified time frame. For
example, the base rate for suicide in the general population is approximately 12 cases per 100,000 persons
annually.
BAYESIAN EQUATION. In probability theory, a mathematical relationship that defines the probability of
an event A occurring, given that event B did occur, as a function of the independent probabilities that A
might (or might not) occur and the joint probabilities of B occurring with or without A occurring. For
example, let A be the event that a person will attempt suicide, and let B be the event that the person scored
above some cutoff score on a suicide prediction test. Assume that the initial probability of a suicide attempt
is 5% p(A) = .05, and that the probability of no attempt is 95% p(not A) = .95. Assume also that of those
who attempt suicide, 80% will have scored above the cutoff point on test B; thus p(B/A) = .80. Finally,
assume that of those who do not attempt suicide, 30% score above the cutoff point on B; p(B/not A) = .30.
Given these figures, we can then compute the probability that a person will attempt suicide, given that he
or she scored above the cutoff point, using the following equation:

BEHAVIORAL SCIENCE(S). The study of human development, interpersonal relationships, values,

experiences, activities, and institutions; fields within the behavioral sciences include psychiatry, psychology,
cultural anthropology, sociology, political science, and ethology.
BEHAVIORISM. The school of psychological theory that holds that behavior is generally determined and
explicable by principles of learning and conditioning.
BEHAVIOR THERAPY. A mode of treatment that focuses on modifying observable and, at least in
principle, quantifiable behavior by means of systematic manipulation of the environmental and behavioral
variables thought to be functionally related to the behavior. Some behavior therapy techniques include
OPERANT CONDITIONING, TOKEN ECONOMY, AVERSION THERAPY, and
BIOFEEDBACK.
BENDER–GESTALT TEST. A psychological assessment technique in which the subject is required to
make accurate copies of relatively simple stimulus figures that are presented to him or her. The organization
and accuracy of the drawings can be scored by the examiner in light of developmental norms for different
age groups and may be useful in the gross screening for organic conditions that involve impairment in

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 visual–motor areas.
BIOFEEDBACK. The use of instrumentation to provide information (feedback) about variations in one or
more of the subject’s own physiological processes not ordinarily perceived (e.g., brain wave activity, muscle
tension, or blood pressure). Such feedback over time can help the subject learn to control those processes,
even though he or she is unable to articulate how the learning is achieved.
BIPOLAR DISORDERS. MOOD DISORDERS in which there are episodes of MANIA and/or
HYPOMANIA alternating with episodes of DEPRESSION. Bipolar I disorder, formerly called “manic–
depressive illness,” involves at least one episode of MANIA and is typically characterized by cycling among
episodes of MANIA (or HYPOMANIA), episodes of DEPRESSION, and mixed episodes. Bipolar II
disorder involves the presence or history of HYPOMANIA and DEPRESSION but no MANIA.
BLOCKING. A sudden interruption of thinking or speaking, experienced as an absence of thought.
BLUNTED AFFECT. See AFFECT.
BOARD-CERTIFIED PSYCHIATRIST. A psychiatrist who has passed examinations administered by the
AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY, and thus becomes certified as a
medical specialist in psychiatry.
BOARD-ELIGIBLE PSYCHIATRIST. A psychiatrist who has completed an approved psychiatric
residency training program, and is thus eligible to take the examinations of the AMERICAN BOARD OF
PSYCHIATRY AND NEUROLOGY.
BORDERLINE INTELLECTUAL FUNCTIONING. Traditionally defined as an IQ in the range of 71–
84, although DSM-5 has dropped this part of the definition. An additional “condition that may be a focus
of clinical attention” in DSM-5, especially when it coexists with a disorder such as SCHIZOPHRENIA.
BORDERLINE PERSONALITY. See PERSONALITY DISORDERS.

CASE MANAGEMENT. (1) A type of health care delivery with emphasis on the development of
alternative treatment plans for the patients who have been identified (by preadmission certification,
diagnosis, etc.) as potential high-cost cases. Once such a case has been identified, the case manager confers
with the patient’s physician to develop a less expensive treatment plan and aftercare. (2) The process of
following a patient through various types of treatment and helping him or her gain access to care and other
social services and entitlements.
CATATONIA. Immobility with muscular rigidity or inflexibility and at times excitability. See also
SCHIZOPHRENIA.
CHARACTER DISORDER (CHARACTER NEUROSIS). A now archaic term for a PERSONALITY
DISORDER manifested by a chronic, habitual, maladaptive pattern of reaction that is relatively inflexible;
that limits the optimal use of potential; and that often provokes the responses from the environment that
the subject wants to avoid. In contrast to symptoms of NEUROSIS, character traits are typically EGO-
SYNTONIC.
CIRCUMSTANTIALITY. Pattern of speech that is indirect and delayed in reaching its goal. Compare with

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 TANGENTIALITY.
CLANGING. A type of thinking in which the sound of a word, rather than its meaning, gives the direction
to subsequent associations; punning and rhyming may substitute for logic; and speech may become
increasingly a senseless association of sounds and decreasingly a vehicle for communication.
CLOZAPINE. An ANTIPSYCHOTIC DRUG with fewer side effects than most.
COGNITIVE. Refers to the mental process of comprehension, judgment, memory, and reasoning, as
contrasted with emotional and volitional processes. Contrast with CONATIVE.
COGNITIVE-BEHAVIORAL MODIFICATION. Form of treatment that uses principles of learning to
modify an individual’s cognitions, as well as his or her behavior. The underlying theory of the interaction
between cognitions and environmental contingencies is often called “social learning theory.”
COMMUNITY MENTAL HEALTH CENTER (CMHC). A mental health service delivery system first
authorized by the federal Community Mental Health Centers Act of 1963 to provide a comprehensive
program of mental health care to catchment area residents. A CMHC is typically a community facility or a
network of affiliated agencies that serves as a locus for the delivery of the various services.
COMORBIDITY. The simultaneous existence of two or more illnesses, such as the co-occurrence of
schizophrenia and cocaine use disorder or of alcohol use disorder and depression. The association may
reflect a causal relationship between one disorder and another or an underlying vulnerability to both
disorders. Also, the appearance of the illnesses may be unrelated to any common ETIOLOGY or
vulnerability.
CONATIVE. Pertains to one’s basic strivings as expressed in behavior and actions; volitional, as contrasted
with COGNITIVE.
CONCRETE THINKING. Thinking characterized by immediate experience, rather than abstractions. It
may occur as a primary, developmental defect, or it may develop secondary to ORGANIC BRAIN
DISORDER or SCHIZOPHRENIA.
CONDENSATION. A psychological process, often present in dreams, in which two or more concepts are
fused so that a single symbol represents the multiple components.
CONDITIONING. Establishing new behavior as a result of psychological modifications of responses to
stimuli.
CONDUCT DISORDER. A disruptive behavior disorder of childhood, characterized by repetitive and
persistent violation of the rights of others or of age-appropriate societal norms or rules. Some symptoms
include bullying others; truancy from school; staying out at night despite parental prohibition before the age
of 13; breaking into another’s house or car; fire setting with the intent of causing serious damage; physical
cruelty to people or animals; stealing; and use of a weapon that could cause harm to others (e.g., brick,
broken bottle, or gun).
CONFABULATION. Fabrication of stories in response to questions about situations or events that are not
recalled.
CONFLICT. A mental struggle that arises from the simultaneous operation of opposing impulses, drives,
external (environmental) demands, or internal demands; termed “intrapsychic” when the conflict is between

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 forces within the personality, “extrapsychic” when it is between the self and the environment.
CONJOINT THERAPY. A form of couple therapy in which a therapist sees the partners together in joint
sessions.
CONSCIOUS. The content of mind of which one is aware.
CONTROL. In research, the term is used in three contexts: (1) the process of keeping the relevant
conditions of an experiment constant; (2) the process of causing an INDEPENDENT VARIABLE to vary
in a specified and known manner; and (3) the use of a spontaneously occurring and discoverable fact as a
check or standard of comparison to evaluate the facts obtained after the manipulation of the independent
variable.
CONTROL GROUP. A randomly selected group of research participants exposed to the same treatments as
an experimental group except the INDEPENDENT VARIABLE under investigation.
CONVERSION. A DEFENSE MECHANISM by which intrapsychic CONFLICTS that would
otherwise give rise to anxiety are instead given symbolic external expression, including such symptoms as
paralysis, pain, or loss of sensory function.
CORRELATION. The extent to which two measures vary together, or a measure of the strength of the
relationship between two variables. It is usually expressed by r, a coefficient that varies between +1.0, perfect
agreement, and –1.0, a perfect inverse relationship. A correlation coefficient of 0 would mean a perfectly
random relationship. The correlation coefficient signifies the degree to which knowledge of one score or
variable can predict the score on the other variable. A high correlation between two variables does not
necessarily indicate a causal relationship between them: The correlation may follow because each of the
variables is highly related to a third yet unmeasured factor.
COUNTERTRANSFERENCE. The clinician’s partly unconscious or conscious emotional reactions to the
patient. See also TRANSFERENCE.
CRISIS INTERVENTION. A form of brief clinical intervention that emphasizes identification of the
specific event precipitating the emotional trauma and uses methods to neutralize that trauma. Often used in
hospital emergency rooms.
CRITERION VARIABLE. Something to be predicted.

DECOMPENSATION. The deterioration of existing defenses, leading to an increase in the behavior

defended against. More generally, a reduction in levels of functioning.
DEFENSE MECHANISM. Unconscious intrapsychic processes serving to provide relief from emotional
CONFLICT and anxiety. Conscious efforts are frequently made for the same reasons, but true defense
mechanisms are unconscious. Some of the common defense mechanisms are CONVERSION, DENIAL,
DISPLACEMENT, DISSOCIATION, IDENTIFICATION, INTROJECTION, PROJECTION,
RATIONALIZATION, REACTION FORMATION, REGRESSION, and SUBSTITUTION.
DEINSTITUTIONALIZATION. Change in locus of mental health care from traditional, institutional
settings to community-based services. Compare TRANSINSTITUTIONALIZATION.

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DELIRIUM TREMENS. An acute and sometimes fatal brain disorder (in 10–15% of untreated cases)
caused by total or partial withdrawal from excessive alcohol intake. Usually develops in 24–96 hours after
cessation of drinking. Symptoms include fever, tremors, and ATAXIA, and sometimes convulsions,
frightening ILLUSIONS, DELUSIONS, and HALLUCINATIONS.
DELUSION. A false belief based on an incorrect inference about external reality and firmly sustained despite
clear evidence to the contrary. The belief is not part of a cultural tradition, such as an article of religious
faith.
DEMENTIA. An ORGANIC MENTAL DISORDER in which there is a deterioration of previously
acquired intellectual abilities of sufficient severity to interfere with social or occupational functioning.
Memory disturbance is the most prominent symptom. Other symptoms may include impairment of abstract
thinking, judgment, and/or impulse control, as well as personality change. Dementia may be progressive,
static, or reversible, depending on the pathology and on the availability of effective treatment. It now
corresponds to the DSM-5 diagnosis of major neurocognitive disorder, which is coded according to its
cause.
DENIAL. A DEFENSE MECHANISM used to resolve emotional conflict and allay anxiety by disavowing
thoughts, feelings, wishes, needs, or external reality factors that are consciously intolerable.
DEPENDENT VARIABLE. The aspect of the subject that is measured after the manipulation of the
INDEPENDENT VARIABLE and is assumed to vary as a function of the independent variable.
DEPERSONALIZATION. Feelings of unreality or strangeness concerning either the environment, the self,
or both.
DEPRESSION. A condition marked by a disturbance in mood or emotion, often associated with feelings of
helplessness, hopelessness, and low self-esteem.
DETERMINISM. The theory that one’s emotional life and actions are determined by earlier events or
physiological states.
DEVALUATION. A mental mechanism in which one attributes exaggerated negative qualities to oneself or
others. Contrast with IDEALIZATION.
DEVELOPMENTAL DISABILITY. A substantial handicap or impairment originating before the age of
18 that may be expected to continue indefinitely. The disability may be attributable to INTELLECTUAL
DISABILITY, cerebral palsy, EPILEPSY, or other neurological conditions, and may include AUTISM.
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM). The
AMERICAN PSYCHIATRIC ASSOCIATION’S official classification of mental disorders, first
published in 1952 and most recently available in its fifth edition (2013).
DIATHESIS–STRESS HYPOTHESIS. A theory that mental disorder is triggered by the interaction
between environmental stressors and genetic predisposition.
DIPLOMATE. One who has been certified as having special competence in a particular professional
specialty (e.g., see BOARD-CERTIFIED PSYCHIATRIST). Diplomates in forensic mental health are
recognized by the AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY, the AMERICAN
BOARD OF FORENSIC PSYCHOLOGY, and the American Academy of Forensic Social Work.

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DISCRIMINANT ANALYSIS. A statistical classification procedure that selects from an initially large pool
of predictor variables (e.g., test scores and demographic measures) a smaller number of measures, which,
when mathematically combined, maximize the correct classification of individuals into nominal criterion
groups (e.g., diagnoses).
DISORIENTATION. Loss of awareness of the relation of self to space, time, or other persons; confusion.
DISPLACEMENT. A DEFENSE MECHANISM in which emotions, ideas, or wishes are transferred
from their original object to a more acceptable substitute.
DISSOCIATION. A DEFENSE MECHANISM through which emotional significance and affect are
separated and detached from an idea, situation, or object. Dissociation may defer or postpone experiencing
some emotional impact, as, for example, in selective AMNESIA.
DISSOCIATIVE DISORDER. Category of disorders in which there is a sudden, temporary alteration in
normally integrated functions of consciousness, identity, or motor behavior, so that some part of one or
more of these functions is lost. These disorders include dissociative AMNESIA, dissociative FUGUE,
MULTIPLE PERSONALITY DISORDER (now called dissociative identity disorder), and
DEPERSONALIZATION disorder.
DOUBLE-BLIND. A study in which a number of treatments—for instance, one or more drugs and a
placebo—are compared in such a way that neither the patients/research participants nor the persons
administering the treatment know which preparation is being administered.
DUAL DIAGNOSIS. (1) The co-occurrence within one’s lifetime of a psychiatric disorder and a substance
use disorder. In such a case, COMORBIDITY is the preferred term. (2) The co-occurrence of major
mental illness and INTELLECTUAL DISABILITY.
DUALISM. Philosophical belief in the separation of mind and body.
DYSPHORIA. Unpleasant mood.
DYSTONIA. Acute muscular spasms, often of the tongue, jaw, eyes, and neck, but sometimes of the whole
body. Sometimes occurs during the first few days of ANTIPSYCHOTIC DRUG administration.

ECOLOGICAL THEORY. Perspective in psychology, identified with Urie Bronfenbrenner and others,
that emphasizes the interaction among the individual and the various systems affecting the individual in
determining behavior.
ECOLOGICAL VALIDITY. The extent to which controlled experimental results can be generalized
beyond the confines of the particular experimental context to contexts in the real world.
EGO. In psychoanalytic theory, one of the three major divisions in the model of the psychic apparatus, the
others being the ID and the SUPEREGO. The ego represents the sum of certain mental mechanisms, such
as perception and memory, and specific DEFENSE MECHANISMS. It mediates between the demands
of primitive instinctual drives (the id), of internalized parental and social prohibitions (the superego), and of
reality. The compromises between these forces activated by the ego tend to resolve intrapsychic
CONFLICT and to serve an adaptive and executive function. Psychiatric usage of the term should not be

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 confused with common usage, which connotes self-love or selfishness.
EGO BOUNDARIES. Hypothesized lines of demarcation between the ego and (1) the external world
(external ego boundary) and (2) the internal world, including the repressed UNCONSCIOUS, the ID, and
much of the SUPEREGO (internal ego boundary).
EGO-DYSTONIC. Aspects of a person’s behavior, thoughts, and attitudes viewed as repugnant or
inconsistent with the total personality. Contrast with EGO-SYNTONIC.
EGO-SYNTONIC. Aspects of a person’s behavior, thoughts, and attitudes viewed as acceptable and
consistent with the total personality. Contrast with EGO-DYSTONIC.
ELECTROCONVULSIVE THERAPY (ECT). Use of electric current with anesthetics and muscle
relaxants to induce convulsive seizures. Most effective in the treatment of DEPRESSION. Introduced in
1938. Modifications are electronarcosis, which produces sleeplike states, and electrostimulation, which
avoids convulsions.
ELECTROENCEPHALOGRAM (EEG). A graphic (voltage vs. time) depiction of the brain’s electrical
potentials recorded by scalp electrodes. It is used for diagnosis in neurological and neuropsychiatric
disorders and in neurophysiological research.
EMPIRICISM. A philosophical approach to knowledge maintaining that knowledge is acquired through
observation and experience.
ENDOGENOUS. Originating or beginning within the organism.
EPILEPSY. A central nervous system disorder characterized by disruption of normal activity in the brain’s
nerve cells, causing convulsions (repeated involuntary muscle spasms) or periods of unusual behavior,
sensations, and/or alterations in consciousness. Epilepsy may develop because of abnormal neural wiring,
imbalanced signaling between nerves, or combinations of these and other factors. Patterns of abnormal
electrical discharges may appear on an EEG, and brain scans (e.g., magnetic resonance imaging or
computed tomography) may reveal structural abnormalities that underlie epilepsy. Seizures are classified as
“partial” or “generalized” based on whether they involve parts of or the entire brain. For a more elaborate
description of epilepsy and its various manifestations, including “focal seizure with impairment of
consciousness,” formerly known as “complex partial seizure,” and its relationship to aggression, see §
8.04(b).
ETIOLOGY. Causation, particularly with reference to disease.
EXHIBITIONISM. One of the PARAPHILIAS, characterized by marked distress over, or acting on, urges
to expose one’s genitals to an unsuspecting stranger.
EXOGENOUS. Originating or having to do with outside the body.
EXPERIMENTAL RESEARCH. A research approach that tests causal linkages among variables. The
experimenter manipulates the INDEPENDENT VARIABLE, attempts to control extraneous conditions,
and assesses the effect on a DEPENDENT VARIABLE by randomly assigning groups to various
conditions.
EXPLOSIVE PERSONALITY. A disorder of impulse control in which several episodes of serious outbursts
of relatively unprovoked aggression lead to assault on others or the destruction of property. There is no

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 organic, epileptic, or any other personality disorder that might account for the behavior. Also called
“intermittent explosive disorder.”
EXTERNAL VALIDITY. The degree to which results of a study can be generalized to the real world.
EXTRAPYRAMIDAL SYNDROME. A variety of signs and SYMPTOMS, including muscular rigidity,
tremors, drooling, shuffling gait (PARKINSONISM), restlessness (AKATHISIA), and many other
neurological disturbances. May occur as a reversible side effect of certain antipsychotic drugs, particularly
PHENOTHIAZINE DERIVATIVES. See also TARDIVE DYSKINESIA.

FACTITIOUS DISORDERS. A group of disorders characterized by intentional production or feigning of

physical or psychological symptoms or signs related to a need to assume the sick role, rather than for
obvious SECONDARY GAINS such as economic support or obtaining better care. The symptoms
produced may be predominantly psychological, predominantly physical, or a combination of both. An
example is MUNCHAUSEN SYNDROME.
FALSE NEGATIVE. An erroneous opinion that something is not present or will not be present (e.g., an
opinion of normal behavior when a mental disorder is actually present).
FALSE POSITIVE. An erroneous opinion that something is or will be present (e.g., an inaccurate diagnosis
of mental illness or prediction of violent behavior).
FETAL ALCOHOL SYNDROME. A congenital disorder resulting from alcohol use by the mother, with
the following possible symptoms: central nervous system dysfunction, birth deficiencies (such as low birth
weight), facial abnormalities, and variable major and minor malformations. A safe level of alcohol use
during pregnancy has not been established, and it is generally advisable for women to refrain from alcohol
use during pregnancy.
FIXATION. The arrest of psychosocial development at a particular stage.
FLIGHT OF IDEAS. Verbal skipping from one idea to another. The ideas appear to be continuous, but are
fragmentary and determined by chance or temporal associations.
FORMAL THOUGHT DISORDER. An inexact term referring to a disturbance in the form of thinking
rather than to abnormality of content. Can consist of BLOCKING, incoherence, LOOSENING OF
ASSOCIATIONS, and POVERTY OF SPEECH.
FREE ASSOCIATION. In psychoanalytical therapy, spontaneous, uncensored verbalization by the patient
of whatever comes to mind.
FREE-FLOATING ANXIETY. Severe, generalized, persistent anxiety not specifically ascribed to a
particular object or event and often a precursor of panic.
FUGUE. A DISSOCIATIVE DISORDER characterized by AMNESIA and involving actual physical
flight from the customary environment or field of conflict.
FUNCTIONAL DISORDER. A disorder in which the performance or operation of an organ or organ
system is abnormal, but not as a result of known changes in structure.

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G

GANSER’S SYNDROME. Also called “nonsense syndrome,” “syndrome of approximate answers,” or

“prison psychosis.” It is characterized by giving deviously relevant or approximate answers to questions.
Asked what a 25-cent piece is, the person says it is a dime. The syndrome is commonly associated with
dissociative AMNESIA or FUGUE. Other symptoms may include disorientation, perceptual disturbances,
and CONVERSION symptoms. The syndrome is described most frequently in prison inmates, for whom
it may represent an attempt to gain leniency from prison or court officials.
GENERALIZABILITY. The degree to which conclusions of a study may be applied in situations beyond
the conditions of the study itself. See also EXTERNAL VALIDITY.
GRANDIOSITY. Exaggerated belief or claims of one’s importance or identity, often manifested by
DELUSIONS of great wealth, power, or fame. See BIPOLAR DISORDERS, MANIA.
GRAND MAL. See EPILEPSY.

HALLUCINATION. A sensory perception in the absence of an actual external stimulus. May occur in any
of the senses.
HEALTH MAINTENANCE ORGANIZATION (HMO). A form of group practice (composed, e.g., of
physicians and supporting personnel) to provide comprehensive health services to an enrolled group of
subscribers who pay a fixed premium (“capitation fee”) to belong. Emphasis is on maintaining the health of
the enrollees as well as treating their illnesses. HMOs must include psychiatric benefits to receive federal
support.
HEURISTIC. Serving to encourage discovery of solutions to a problem, but otherwise unjustified or
incapable of justification.
HUMANISM. The school of psychological theory that holds that human behavior is ultimately purposeful.
Humanists, such as Abraham Maslow and Carl Rogers, have stood as a “third force” opposing the
deterministic underpinnings of behaviorist and psychoanalytical theories. Humanistic theories are also
distinguished by their phenomenological approach; they generally emphasize the significance of
understanding an individual’s here-and-now experience (as opposed, e.g., to the individual’s childhood or
history of reinforcement).
HYPERACTIVITY. Excessive motor activity, generally purposeful. It is frequently, but not necessarily,
associated with internal tension or a neurological disorder. Usually the movements are more rapid than
customary.
HYPOGLYCEMIA. Abnormally low level of blood sugar.
HYPOMANIA. A mood episode whose characteristics are the same as in an episode of MANIA, but not so
severe as to cause marked impairment in social or occupational functioning or to require hospitalization,
even though the mood change is clearly different from the subject’s usual nondepressed mood and is
observable to others. See BIPOLAR DISORDERS.

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HYSTERICAL PERSONALITY. A term now considered obsolete; see HISTRIONIC under
PERSONALITY DISORDERS for a current equivalent.

IATROGENIC ILLNESS. A disorder precipitated, aggravated, or induced by the physician’s attitude,

examination, comments, or treatment.
ID. In Freudian theory, the part of the personality structure that harbors the unconscious instinctual desires
and strivings. See also EGO and SUPEREGO.
IDEALIZATION. A mental mechanism in which the person attributes exaggerated positive qualities to the
self or others. Contrast with DEVALUATION.
IDEAS OF REFERENCE. Incorrect interpretation of casual incidents and external events as having direct
reference to oneself. May reach sufficient intensity to constitute DELUSIONS.
IDENTIFICATION. A DEFENSE MECHANISM by which a person patterns him- or herself after some
other person. Identification plays a major role in the development of one’s personality, and specifically of
the superego. To be differentiated from “imitation” or “role modeling,” which is a conscious process.
IDIOGRAPHIC. Referring to an individual case.
IDIOPATHIC. Of unknown cause.
ILLUSIONS. A misperception of a real external stimulus. For example, the rustling of leaves is heard as the
sound of voices. Contrast with HALLUCINATION.
ILLUSORY CORRELATION. An incorrect belief, often resulting from selective attention to
unrepresentative occurrences, that two variables are correlated in a particular fashion when in fact they are
not. See CORRELATION.
IMPULSE-CONTROL DISORDERS. A varied group of nonpsychotic disorders in which impulse control
is weak. The impulsive behavior is usually pleasurable, difficult to resist, and EGO-SYNTONIC.
INCIDENCE. The number of cases of a disease that come into being during a specific period of time.
INDEPENDENT VARIABLE. The variable under the experimenter’s control.
INSANITY. A vague term for PSYCHOSIS, now obsolete. Still used, however, in strictly legal contexts such
as the insanity defense. See INSANITY [§ 20.01].
INTEGRATION. The organization and incorporation of both new and old data, experience, and emotional
capacities into the personality.
INTELLECTUAL DISABILITY. Significantly subaverage general intellectual functioning, existing
concurrently with deficits in adaptive behavior and manifested during youth. Four degrees of severity have
traditionally been recognized: mild (IQ 50–55 to 70); moderate (IQ 35–40 to 50–55); severe (IQ 20–25 to
35–40); and profound (IQ below 20 or 25). More recent definitions, however, place less emphasis on IQ
scores and more on the totality of an individual’s adaptive functioning.
INTELLIGENCE QUOTIENT (IQ). A numerical value, determined through psychological testing, that
indicates a person’s approximate level of intellectual functioning relative to either his or her chronological

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 age or to other persons having similar demographic characteristics.
INTELLIGENCE TESTS. Any of several psychological techniques for systematically assessing the
cognitive functioning and general problem-solving ability of an individual relative to others of his or her
own age or of similar demographic background. Intelligence tests typically result in an IQ score, which can
be interpreted according to population norms to estimate a person’s level of adaptive intelligence.
Commonly used intelligence tests include the Wechsler Adult Intelligence Scale (currently in its fourth
edition), the Wechsler Intelligence Scale for Children (currently in its fifth edition), the Stanford–Binet
(currently in its fifth edition), and the Peabody Picture Vocabulary Test (currently in its fourth edition).
INTERNAL VALIDITY. The degree to which any effects of an experimental intervention can be logically
attributed to the intervention and to which rival hypotheses may be ruled out. Internal validity can be
affected by “history” (when an observed effect is due to an event that takes place between the pretest and
posttest); “maturation” (i.e., aging); a “testing effect” (i.e., familiarity with a given test); “instrumentation”
(i.e., a flaw in the instrument or observers); “selection bias” (resulting from differences in comparison
groups, a validity problem pervasive in QUASI-EXPERIMENTAL designs); and “statistical regression”
(where, to the extent that an instrument does not accurately reflect the subjects’ views, attitudes, etc., the
inaccuracy will tend to be in the direction of, or “regress toward,” the mean).
INTERVENING VARIABLE. Something intervening between a circumstance and its consequent,
modifying the relation between the two. For example, appetite can be an intervening variable determining
whether or not a given food will be eaten.
INTRAPSYCHIC. That which takes place within the psyche or mind.
INTROJECTION. A DEFENSE MECHANISM whereby loved or hated external objects are symbolically
absorbed within oneself. The converse of PROJECTION. May serve as a defense against conscious
recognition of intolerable hostile impulses.
INVOLUTIONAL MELANCHOLIA. A term formerly used to describe an agitated DEPRESSION in a
person of climacteric age. Currently, such patients are not distinguished from depressed patients of other
age groups.
IQ. See INTELLIGENCE QUOTIENT.

KLEPTOMANIA. See MANIA.

KORSAKOFF’S SYNDROME. A disease associated with chronic alcoholism, resulting from a deficiency of
vitamin B1. Patients sustain damage to part of the thalamus and cerebellum. Symptoms include
inflammation of nerves, muttering delirium, insomnia, ILLUSIONS, and HALLUCINATIONS.

LABILE. Rapidly shifting, unstable (referring to emotions).

LEARNING DISABILITY. Difficulty experienced by school-age children of normal or above-normal

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 intelligence in learning to read (“dyslexia”), write (“dysgraphia”), and/or calculate (“dyscalculia”). Such a
disorder is believed to be related to slow developmental progression of perceptual–motor skills. See also
ATTENTION-DEFICIT/HYPERACTIVITY DISORDER, MINIMAL BRAIN DYSFUNCTION.
LIBIDO. The psychic drive or energy usually associated with the sexual instinct. (“Sexual” is used here in the
broad sense to include the seeking of pleasure and love objects.)
LIMBIC SYSTEM. An area in the brain associated with the control of emotion, eating, drinking, and sexual
activity.
LITHIUM CARBONATE. An alkali metal, the salt of which is used in the treatment of acute MANIA and
as a maintenance medication to help reduce the duration, intensity, and frequency of recurrent mood
episodes, especially in bipolar I disorder (see BIPOLAR DISORDERS).
LOOSENING OF ASSOCIATIONS. A disturbance of thinking in which ideas shift from one subject to
another in an oblique or unrelated manner. When loosening of associations is severe, speech may be
incoherent. Contrast with FLIGHT OF IDEAS.

MALINGERING. Deliberate simulation or exaggeration of an illness or disability to avoid an unpleasant

situation or to obtain some type of personal gain.
MANIA. A mood episode characterized by excessive elation, hyperactivity, agitation, and accelerated
thinking and speaking. Sometimes manifested as FLIGHT OF IDEAS.
MANIC–DEPRESSIVE ILLNESS. See BIPOLAR DISORDERS.
MEAN. The arithmetic average of a set of observations; the sum of scores divided by the number of scores.
MEDIAN. The middle value in a set of values that have been arranged in order from highest to lowest.
MEDICAL MODEL. A perspective that views abnormal behavior as the product of an illness. The “illness”
may be intrapsychic rather than organic.
MENTAL DISEASE. See MENTAL DISORDER.
MENTAL DISORDER. Impairment in functioning due to a social, psychological, genetic,
physical/chemical, or biological disturbance.
MENTAL STATUS EXAMINATION. The process of estimating psychological and behavioral function
by observing the patient, eliciting his or her description of self, and formally questioning him or her. The
mental status is reported in a series of narrative statements describing such things as AFFECT, speech,
thought content, perception, and COGNITIVE functions.
MILIEU THERAPY. Socioenvironmental therapy in which the attitudes and behavior of the staff of a
treatment service and the activities prescribed for the patient are determined by the patient’s emotional and
interpersonal needs.
MINIMAL BRAIN DYSFUNCTION (MBD). A now outmoded term used to describe a disturbance of
children, adolescents, and perhaps adults, without signs of major neurological or psychiatric disturbance.
Characterized by decreased attention span, distractibility, increased activity, impulsivity, emotional lability,

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 poor motor integration, disturbances in perception, and disorders of language development. See also
LEARNING DISABILITY.
MINNESOTA MULTIPHASIC PERSONALITY INVENTORY (MMPI/MMPI-2). An
OBJECTIVE PERSONALITY TEST composed of items that the subject scores as “true–false” as applied
to himself or herself. The original MMPI test contained ten scales for clinical assessment and three
“validity” scales to assess the person’s test-taking attitude or candor. Other popular tests of this type include
the California Psychological Inventory and the Millon Clinical Multiaxial Inventory.
MODE. The most frequently occurring observation in a set of observations.
MOOD DISORDERS. A group of disorders in which there is a prominent and persistent disturbance of
mood (DEPRESSION, MANIA, and/or HYPOMANIA). Such a disorder is usually episodic but may be
chronic. The category of mood disorders has been dropped from DSM-5 (where depressive disorders and
bipolar and related disorders are now classified separately), but the term is still widely used.
MULTIPLE PERSONALITY DISORDER. In DSM-5, this is now called dissociative identity disorder,
although the older term is still popular. It consists of the existence within one person of two or more
distinct personalities or personality states (“alters” or “alter personalities”). Each personality state has its
own relatively enduring pattern of perceiving, relating to, and thinking about the environment and the self,
and at least two of them alternate in taking control of the person’s behavior. Characteristically, there is an
amnestic barrier between personalities; this may be absolute or (more commonly) unilateral, denying one
personality access to the memories of the other but allowing the other personality full access to the memory
systems of both.
MUNCHAUSEN SYNDROME (PATHOMIMICRY). A chronic form of FACTITIOUS DISORDER
as defined by DSM-5, with physical symptoms that may be totally fabricated, self-inflicted, or
exaggerations of preexisting physical conditions. The subject’s entire life may consist of seeking admission
to or staying in hospitals (often under different names). Multiple invasive procedures and operations are
eagerly solicited. The need is to assume the sick role, rather than to reap any economic benefit or to ensure
better care or physical well-being.

NARCISSISM (NARCISM). Self-love as opposed to object love (love of another person). To be

distinguished from “egotism,” which carries the connotation of self-centeredness, selfishness, and conceit.
Egotism is but one expression of narcissism.
NARCOTIC. Any opiate derivative drug, natural or synthetic, that relieves pain or alters mood. May cause
ADDICTION.
NATIONAL ALLIANCE ON MENTAL ILLNESS (NAMI). An organization whose members are
parents and relatives of patients with mental illness and former patients; its main objective is for better and
more sustained care. Its trustees and chapter officers engage in active lobbying and in education projects.
NATIONAL INSTITUTE OF MENTAL HEALTH (NIMH). An institute within the National
Institutes of Health responsible for research on the causes and treatments of mental illnesses.

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NEOLOGISM. A new word or condensed combination of several words coined by a person to express a
highly complex idea not readily understood by others; seen in SCHIZOPHRENIA and ORGANIC
MENTAL DISORDERS.
NEURASTHENIA. An archaic term for one of the SOMATOFORM DISORDERS, characterized by
persisting complaints of mental or physical fatigue or weakness after performing daily activities, and by
inability to recover with normal periods of rest or entertainment. Typical symptoms include muscular aches
and pains, dizziness, tension headaches, sleep disturbance, and irritability.
NEUROLEPTIC. An ANTIPSYCHOTIC DRUG.
NEUROLOGICAL DEFICIT. An inability to perform because of some interference along the chain of
neurophysiological or neurochemical events that lies between stimulus and response.
NEUROLOGIST. A physician with postgraduate training and experience in the field of organic diseases of
the nervous system, whose professional work focuses primarily on this area. Neurologists also receive
training in psychiatry.
NEUROLOGY. The branch of medical science devoted to the study, diagnosis, and treatment of organic
diseases of the nervous system.
NEUROSIS. A now dated term for emotional disturbances of all kinds other than PSYCHOSIS. It implies
subjective psychological pain or discomfort beyond what is appropriate in the conditions of one’s life.
Neuroses once commonly recognized are as follows:
ANXIETY NEUROSIS. Chronic and persistent apprehension manifested by autonomic hyperactivity
(sweating, palpitations, dizziness, etc.), musculoskeletal tension, and irritability. Somatic symptoms may
be prominent.
DEPERSONALIZATION NEUROSIS. Feelings of unreality and of estrangement from the self, body,
or surroundings. Different from the process of DEPERSONALIZATION, which may be a
manifestation of anxiety or of another mental disorder.
DEPRESSIVE NEUROSIS. An outmoded term for excessive reaction of DEPRESSION due to an
internal CONFLICT or to an identifiable event such as loss of a loved one or of a cherished possession.
HYSTERICAL NEUROSIS, CONVERSION TYPE. Disorders of the special senses or the voluntary
nervous system, such as blindness, deafness, absence of sensation, PARATHESIA, pain, paralysis, and
impaired muscle coordination.
HYSTERICAL NEUROSIS, DISSOCIATIVE TYPE. Alterations in the state of consciousness or in
identity, producing such symptoms as AMNESIA.
OBSESSIVE–COMPULSIVE NEUROSIS. Persistent intrusion of unwanted and uncontrollable EGO-
DYSTONIC thoughts, urges, or actions. The thoughts may consist of single words, ruminations, or
trains of thought that are seen as nonsensical. The actions may vary from simple movements to complex
rituals, such as repeated handwashing.
PHOBIC NEUROSIS. An intense fear of an object or situation that the person consciously recognizes as
harmless. Apprehension may be experienced as faintness, fatigue, palpitations, perspiration, nausea,
tremor, and even PANIC. See also PHOBIA.

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NOMOTHETIC. Referring to comparisons between groups.
NORMS. In one usage, a set standard of development or achievement usually derived from the average or
median achievement of a large group. In another sense, any pattern or trait taken to be typical in the
behavior of a social group.
NOSOLOGY. The classification of diseases.
NULL HYPOTHESIS. Predicting that an experiment will show no difference between conditions or no
relationship between variables. Statistical tests are then applied to the results of the experiment to try to
disprove the null hypothesis. Testing requires a computation to determine the extent to which two groups
(e.g., an experimental and a control group) may differ in their results even though if the experiment were
often repeated or the groups were larger no difference would be found. The probability of the obtained
difference being found if no true difference existed is commonly expressed as a p value (e.g., p less than .05
that the null hypothesis is true). See STATISTICAL SIGNIFICANCE.

OBJECTIVE PERSONALITY TESTS. Psychological diagnostic tests that are highly structured and have a
limited response format, usually one that can be reliably scored by a technician having little knowledge of
the theoretical construction of the test or meaning of the responses obtained. Personality inventories
consisting of “true–false” responses to series of descriptive statements are representative of this type of test.
An example is the MINNESOTA MULTIPHASIC PERSONALITY INVENTORY (MMPI/MMPI-
2).
OBJECT RELATIONS. The emotional bonds between one person and another, as contrasted with interest
in and love for the self; usually described in terms of capacity for loving and reacting appropriately to others.
OCCUPATIONAL THERAPY. An adjunctive therapy that utilizes purposeful activities as a means of
altering the course of illness. The patient’s relationship to staff members and to other patients in the
occupational therapy setting is often more therapeutic than the activity itself.
OPERANT CONDITIONING (INSTRUMENTAL CONDITIONING). A process of treatment by
which, in theory, the results of the person’s behavior determine or influence whether the behavior is more
or less likely to occur in the future.
ORGANIC BRAIN SYNDROME. See ORGANIC MENTAL DISORDER.
ORGANIC MENTAL DISORDER. A now dated term for transient or permanent dysfunction of the
brain, caused by a disturbance of physiological functioning of brain tissue at any level of organization
(structural, hormonal, biochemical, electrical, etc.). Causes are associated with aging, toxic substances, or a
variety of physical disorders.
ORIENTATION. Awareness of one’s self in relation to time, place, and person (i.e., identity).
ORTHOPSYCHIATRY. An approach that involves the collaborative effort of psychiatry, psychology,
psychiatric social work, and other behavioral, medical, and social sciences in the study and treatment of
human behavior in the clinical setting. Emphasis is placed on preventive techniques to promote healthy
emotional growth and development, particularly of children.

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OUTPATIENT. A patient who is receiving ambulatory care at a hospital or a health facility without being
admitted to the facility.
OVERCOMPENSATION. A conscious or unconscious process in which a real or imagined physical or
psychological deficit generates exaggerated correction.

PANIC ATTACK. A period of intense fear or discomfort, with the abrupt development of a variety of
symptoms and fears of dying, going crazy, or losing control, all of which reach a crescendo within ten
minutes. The symptoms may include shortness of breath or smothering sensations; dizziness, faintness, or
feelings of unsteadiness; trembling or shaking; sweating, choking, nausea, or abdominal distress; flushes or
chills; and chest pain or discomfort.
PARADIGM. A way of looking at the world; the set of philosophical assumptions that underlies a discipline
or school of thought.
PARANOIA. A condition characterized by the gradual development of an intricate, complex, and elaborate
system of thinking based on (and often proceeding logically from) misinterpretation of an actual event. A
person with paranoia often considers him- or herself endowed with unique and superior ability. Despite its
chronic course, this condition does not seem to interfere with thinking and personality. To be distinguished
from SCHIZOPHRENIA and PARANOID PERSONALITY DISORDER, which are specific
diagnoses of which paranoid ideation may be a part.
PARAPHILIAS. Recurrent, intense sexual urges and sexually arousing fantasies that involve nonhuman
objects, children or other nonconsenting persons, or the suffering or humiliation of oneself or the sexual
partner. Also traditionally called “perversions” or “sexual deviations.”
PARAPRAXIS. A faulty act, blunder, or lapse of memory, such as a slip of the tongue or misplacement of an
article. According to Freud, these acts are caused by unconscious motives.
PARATHESIA. Abnormal tactile sensation, often described as burning, pricking, tickling, tingling, or
creeping.
PARKINSONISM. One of the medication-induced movement disorders, consisting of a rapid, coarse
tremor; muscular rigidity; or AKINESIA developing within a few weeks of starting or raising a dose of
neuroleptic medication or of reducing medication used to treat EXTRAPYRAMIDAL symptoms.
PASSIVE–AGGRESSIVE PERSONALITY. See PERSONALITY DISORDERS.
PASSIVE–DEPENDENT PERSONALITY. See DEPENDENT under PERSONALITY
DISORDERS.
PATHOGNOMONIC. A symptom or group of symptoms that are specifically diagnostic or typical of a
disease.
PEDOPHILIA. Sexual activity of adults with children as the objects.
PERSEVERATION. Tendency to emit the same verbal or motor response again and again to varied stimuli.
PERSONALITY DISORDERS. Enduring patterns of perceiving, relating to, and thinking about the

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environment and oneself that begin by early adulthood and are exhibited in a wide range of important social
and personal contexts. These patterns are inflexible and maladaptive, causing either significant functional
impairment or subjective distress. Many different personality types or personality disorders have been
described. The following include those specified in DSM-5 or earlier editions of DSM:
ANTISOCIAL. In older literature, called PSYCHOPATHIC PERSONALITY. Among the more
commonly cited descriptors are superficiality; lack of empathy and remorse, with callous unconcern for
the feelings of others; disregard for social norms; poor behavioral controls, with irritability, impulsivity,
and low frustration tolerance; and inability to feel guilt or to learn from experience or punishment. There
is evidence of CONDUCT DISORDER in childhood and of overtly irresponsible and antisocial
behavior in adulthood, such as inability to sustain consistent work behavior, conflicts with the law,
repeated failure to meet financial obligations, and repeated lying or “conning” of others. Characteristic
behavior appears before age 15, although the diagnosis may not be apparent until adulthood.
AVOIDANT. Characterized by social discomfort and reticence, low self-esteem, and hypersensitivity to
negative evaluation. Manifestations may include avoiding activities that involve contact with others
because of fears of criticism or disapproval; experiencing inhibited development of relationships with
others because of fears of being foolish or being shamed; having few friends despite the desire to relate to
others; or being unusually reluctant to take personal risks or engage in activities because they may prove
embarrassing.
BORDERLINE. Instability in a variety of areas, including interpersonal relationships, behavior, mood,
and self-image. Interpersonal relationships are often intense and unstable, with marked shifts of attitude,
including inappropriate, intense, or uncontrolled anger. Frequently, there is impulsive and unpredictable
behavior that is potentially physically self-damaging, including self-mutilation and suicide threats. There
may be chronic feelings of emptiness and boredom, or brief episodes of PSYCHOSIS.
DEPENDENT. Inducing others to assume responsibility for major areas of one’s life; subordinating one’s
own needs to those of others on whom one is dependent to avoid any possibility of independence; lack of
self-confidence; inability to express disagreement because of possible anger or lack of support from
others; and preoccupation with fears of being left to take care of self.
HISTRIONIC. Excitability, emotional instability, overreactivity, and attention seeking, and often
seductive self-dramatization, whether or not the person is aware of its purpose. People with this disorder
are immature, self-centered, vain, and unusually dependent. Other characteristics may include
overattention to physical attractiveness; rapidly shifting and shallow emotions; speech that is excessively
impressionistic and lacking in detail; viewing of relationships as being more intimate then they actually
are; and seeking immediate gratification. In older literature, referred to as HYSTERICAL
PERSONALITY.
NARCISSISTIC. Characterized by a pervasive pattern of GRANDIOSITY. Manifestations may include
an exaggerated sense of self-importance or uniqueness; preoccupation with fantasies of limitless success;
need for constant attention and admiration; and disturbances in interpersonal relationships, such as lack
of empathy, exploitativeness, and relationships that vacillate between the extremes of
(over)IDEALIZATION and DEVALUATION.

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 OBSESSIVE–COMPULSIVE. Also “compulsive personality”; characterized by preoccupation with
perfectionism, mental and interpersonal control, and orderliness, all at the expense of flexibility,
openness, and efficiency. Some of the manifestations are preoccupation with rules, lists, or similar items;
excessive devotion to work, with no attention paid to recreation and friendships; limited expression of
warm emotions; reluctance to delegate work and the demand that others submit exactly to his or her way
of doing things; and miserliness.
PARANOID. Pervasive and long-standing suspiciousness and mistrust of others; hypersensitivity and
scanning of the environment for clues that selectively validate prejudices, attitudes, or biases. Stable
psychotic features such as DELUSIONS and HALLUCINATIONS are absent.
PASSIVE–AGGRESSIVE. Aggressive behavior manifested in passive ways, such as obstructionism,
pouting, procrastination, intentional inefficiency, and obstinacy. The aggression often arises from
resentment at failing to find gratification in a relationship with an individual or institution on which the
individual is overdependent. (Not an official diagnosis.)
SCHIZOID. Manifestations include shyness, oversensitivity, social withdrawal, frequent daydreaming,
avoidance of close or competitive relationships, and eccentricity. Persons with this disorder often react to
disturbing experiences with apparent detachment and are unable to express hostility and ordinary
aggressive feelings.
SCHIZOTYPAL. Characterized by a combination of discomfort with and reduced capacity for close
relationships and cognitive or perceptual distortions and eccentricities of behavior. Possible
manifestations include odd beliefs or magical thinking inconsistent with cultural norms; unusual
perceptual experiences, including bodily ILLUSIONS; odd thinking and speech; no close friends (or
only one) because of lack of desire, discomfort with others, or eccentricities; and persisting, excessive
social anxiety that tends to be associated with paranoid fears rather than negative judgments about
oneself. Some studies suggest that schizotypal personality disorder might more properly be considered a
part of a schizophrenia-spectrum disorder.
PERSONALITY TESTS. See OBJECTIVE PERSONALITY TEST.
PHENOTHIAZINE DERIVATIVES. A group of psychotropic drugs that include Thorazine, Stelazine,
Haldol, Mellaril, and Prolixin and can cause side effects such as AKATHISIA, DYSTONIA, and
TARDIVE DYSKINESIA. As a group of drugs, the phenothiazines are also known as
ANTIPSYCHOTIC DRUGS.
PHOBIA. An obsessive, persistent, unrealistic, intense fear of an object or situation. The fear is believed to
arise through a process of displacing an internal (unconscious) conflict to an external object symbolically
related to the conflict. See also DISPLACEMENT.
POSTTRAUMATIC STRESS DISORDER (PTSD). A disorder in which exposure to a mental or physical
stressor such as war, rape, or an accident is followed—sometimes immediately and sometimes not until
three months or more after the stress—by persistent reexperiencing of the event, avoidance of stimuli
associated with the trauma or numbing of general responsiveness, negative changes in mood and cognition,
and manifestations of increased arousal. The trauma typically includes experiencing, witnessing, or
confronting an event that involves actual or threatened death or injury, or a threat to the physical integrity

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 of oneself or others, with an immediate reaction of intense fear, helplessness, or horror. Reexperiencing the
trauma may take several forms: recurrent, intrusive, and distressing recollections (images, thoughts, or
perceptions) of the event; recurrent distressing dreams of the event; sudden feeling as if the event were
recurring or being relived (including DISSOCIATIVE flashback episodes); or intense psychological
distress or physiological reactivity if exposed to internal or external cues that symbolize or resemble some
part of the event. The affected person tries to avoid thoughts or feelings associated with the event and
anything that might arouse recollection of it; there may even be AMNESIA for an important aspect of the
trauma. The person may lose interest in significant activities, feel detached or estranged from others, or
have a sense of a foreshortened future. The person may also have difficulty falling or staying asleep, be
irritable or have angry outbursts, experience problems concentrating, and have an exaggerated startle
response.
POVERTY OF SPEECH. Restriction in the amount of speech. Spontaneous speech and replies to questions
range from brief and unelaborated to monosyllabic or no response at all, or are vague, stereotyped, or
obscure in content.
PRECONSCIOUS. Thoughts that are not in immediate awareness but that can be recalled by conscious
effort.
PREDICTOR VARIABLE. The test or other form of performance that is used to predict the person’s status
on a CRITERION VARIABLE. For example, scores on the SAT might be used to predict the criterion
“finishing college within the top 33% of graduating class.” Scores on the SAT would be predictor variables.
PRESSURED SPEECH. Rapid, accelerated, frenzied speech. Sometimes it exceeds the ability of the vocal
musculature to articulate, leading to jumbled and cluttered speech; at other times it exceeds the ability of
the listener to comprehend, as the speech expresses a FLIGHT OF IDEAS (as in MANIA) or an
unintelligible jargon.
PRIMACY EFFECT. The tendency to have better recall of events that occur at the beginning of a sequence.
To be distinguished from RECENCY EFFECT.
PRIMARY PROCESS. In psychoanalytic theory, the generally unorganized mental activity characteristic of
the UNCONSCIOUS. It is marked by the free discharge of energy and excitation without regard to the
demands of environment, reality, or logic. See also SECONDARY PROCESS.
PROFESSIONAL STANDARDS REVIEW ORGANIZATION (PSRO). A physician-sponsored
organization charged with comprehensive and ongoing review of services provided under Medicare,
Medicaid, and maternal and child health programs. The object of this review is to determine for purposes
of reimbursement under these programs whether services are medically necessary; provided in accordance
with professional criteria, norms, and standards; and, in the case of institutional services, rendered in
appropriate settings.
PROGNOSIS. The prediction of the future course of an illness.
PROJECTION. A DEFENSE MECHANISM in which what is emotionally unacceptable in the self is
unconsciously rejected and attributed (projected) to others.
PROJECTIVE DRAWINGS. Any of several projective techniques requiring that the subject draw specific
figures or objects. The clinician then draws inferences about the subject’s personality, based on his or her

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 interpretations of the style, manner, degree of detail, and other features of the drawings in light of the
theoretical or empirically determined meaning of those features. Tests of this type include the Draw-a-
Person test and the House–Tree–Person test.
PROJECTIVE TESTS. Psychological diagnostic tests that utilize ambiguous stimulus material to elicit the
subject’s responses, usually in a relatively unstructured procedure. Because the subject must impose his or
her own meanings and organization on the ambiguous material, the responses are viewed as projections of
the subject’s own personality. Scoring of projective tests is typically complex and may involve a significant
amount of interpretation by the clinician. See, for example, RORSCHACH TEST.
PSYCHIATRIC NURSE. Any nurse employed in a psychiatric hospital or other psychiatric setting who has
special training and experience in the management of psychiatric patients. Sometimes the term is used to
denote only a nurse who has a master’s degree in psychiatric nursing.
PSYCHIATRIC SOCIAL WORKER. A social worker with specialized psychiatric training leading to a
master’s or doctoral degree. See SOCIAL WORK.
PSYCHIATRIST. A licensed physician who specializes in the diagnosis, treatment, and prevention of
mental and emotional disorders. Training encompasses a medical degree and four years or more of
approved residency training. For those who wish to enter a subspecialty, such as child psychiatry,
psychoanalysis, administration, or the like, additional training is considered essential.
PSYCHOANALYST. A person, usually but not always a psychiatrist, who has had training in
psychoanalysis and who employs the techniques of psychoanalytic theory.
PSYCHODYNAMICS. The systematized knowledge and theory of human behavior and its motivation, the
study of which depends largely on the functional significance of emotion. Psychodynamics recognizes the
role of unconscious motivation in human behavior. The theory of psychodynamics assumes that one’s
behavior is determined by past experience, genetic endowment, and current reality.
PSYCHOGENESIS. Production or causation of a symptom or illness by mental or psychic factors as
opposed to organic ones.
PSYCHOLOGICAL TESTS. Any of a variety of systematic techniques for measuring human behavior,
including personality, intelligence, attitudes, achievement, academic performance, or other aspects of
behavior. See PROJECTIVE TESTS, PROJECTIVE DRAWINGS, THEMATIC APPERCEPTION
TEST, OBJECTIVE PERSONALITY TESTS, and INTELLIGENCE TESTS.
PSYCHOLOGIST. A person who holds a master’s degree or doctorate from an accredited graduate training
program in psychology (involving the study of mental processes and of the behavior of people and animals).
A psychologist may be involved in teaching, in research, or in an applied position. Those who apply
psychological knowledge and techniques in the assessment and amelioration of abnormal or disturbed
human behavior are usually “clinical psychologists,” and in most states must obtain licensing or certification
to practice. Other applied practitioners include “counseling psychologists,” who typically work with less
severely disturbed populations than do clinical psychologists (though many of the same assessment
techniques and therapy principles may be utilized), and “school psychologists,” who work with problems
that arise in school settings.
PSYCHOMOTOR EPILEPSY. See EPILEPSY.

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PSYCHOPATHIC PERSONALITY. An early term for ANTISOCIAL personality. See
PERSONALITY DISORDERS. Such persons are sometimes referred to as “psychopathic” or
“SOCIOPATHIC.”
PSYCHOPATHOLOGY. The study of the significant causes and processes in the development of mental
disorders. Also, the manifestations of mental disorders.
PSYCHOSEXUAL DEVELOPMENT. In Freudian theory and its derivatives, a series of stages from
infancy to adulthood, relatively fixed in time, and determined by the interaction between a person’s
biological drives and the environment. With resolution of this interaction, a balanced, reality-oriented
development takes place; with disturbance, FIXATION and CONFLICT ensue, which may result in
characterological or behavioral disorders. The stages of development are (1) “oral,” lasting from birth to 12
months or longer; (2) “anal,” lasting usually from one to three years; (3) “phallic,” occupying the period
from about two and a half to six years; and (4) “Oedipal,” overlapping somewhat with the phallic stage (ages
four to six) and representing a time of inevitable conflict between the child and parents.
PSYCHOSIS. A major mental disorder of organic or emotional origin in which a person’s ability to think,
respond emotionally, remember, communicate, interpret reality, and behave appropriately is sufficiently
impaired as to interfere grossly with the capacity to meet the ordinary demands of life. Often characterized
by regressive behavior, inappropriate mood, diminished impulse control, and such abnormal mental content
as DELUSIONS and HALLUCINATIONS. The term is also applicable to conditions having a wide
range of severity and duration. See also SCHIZOPHRENIA, BIPOLAR DISORDERS,
DEPRESSION, ORGANIC MENTAL DISORDER, and REALITY TESTING.
PSYCHOSOMATIC. Referring to the constant and inseparable interaction of the psyche (mind) and the
soma (body). Most commonly used to refer to illnesses in which the manifestations are primarily physical
but with at least a partial emotional etiology.
PSYCHOSURGERY. Surgical intervention to sever fibers connecting one part of the brain with another or
to remove or destroy brain tissue, with the intent of modifying or altering severe disturbances of behavior,
thought content, or mood. Such surgery may also be undertaken for the relief of intractable pain.
PSYCHOTHERAPY. A therapeutic procedure involving verbal interaction between a mental health
professional and a client. Also, the interpersonal relationship that develops between them; the objective is
to help alleviate the client’s suffering and/or to increase his or her coping skills.
PSYCHOTROPIC. A term used to describe drugs that have a special action upon the psyche.

QUANTITATIVE VARIABLE. An object of observation that varies in manner or degree in such a way
that it may be measured.
QUASI-EXPERIMENT. Experimental design that uses a comparison group of subjects that is not
randomly selected. Thus the group not only differs in terms of the INDEPENDENT VARIABLES, but,
in contrast to the comparison group in a “true” experiment, also differs in some other systematic way. For
instance, a before–after design is a quasi-experiment in that the comparison group (the “after” group) may

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 have been affected not only by the intervention to be studied, but also by other factors that can affect
INTERNAL VALIDITY, such as aging of the subjects.
Q-SORT. A personality assessment technique in which an individual “sorts” a series of descriptive statements
into categories along some ordinal dimension, to reflect the degree to which each statement applies to a
target person (either him- or herself, or someone else specified by the examiner).

RANDOM SAMPLE. A group of subjects selected in such a way that each member of the population from
which the sample is derived has an equal or known chance (probability) of being chosen for the sample.
RATIONALIZATION. A DEFENSE MECHANISM in which the person attempts to justify or make
consciously tolerable by plausible means feelings, behavior, or motives that otherwise would be intolerable.
Not to be confused with conscious evasion or dissimulation.
REACTION FORMATION. A DEFENSE MECHANISM in which a person adopts affects, ideas,
attitudes, and behaviors that are the opposites of impulses he or she harbors either consciously or
unconsciously (e.g., excessive moral zeal may be a reaction to strong but repressed asocial impulses).
REALITY TESTING. The ability to evaluate the external world objectively and to differentiate adequately
between it and the internal world. Falsification of reality, as with massive DENIAL or PROJECTION,
indicates a severe disturbance of ego functioning and/or the perceptual and memory processes upon which
it is partly based.
RECALL. The process of bringing a memory into consciousness. “Recall” is often used to refer to the
recollection of facts, events, and feelings that occurred in the immediate past.
RECENCY EFFECT. The tendency to have better recall of events that occur at the end of a sequence. To
be distinguished from PRIMACY EFFECT.
REGRESSION. Partial or symbolic return to more infantile patterns of reacting or thinking. Manifested in a
wide variety of circumstances, such as in patterns of sleep, play, and physical illness and in many mental
disorders.
RELIABILITY. The extent to which a test or procedure will yield the same result either over time or with
different observers. The most commonly reported reliabilities are (1) “test–retest reliability,” the correlation
between the first and second test of a number of subjects; (2) “split-half reliability,” the correlation within a
single test of two similar parts of the test; and (3) “interrater reliability,” the agreement between different
individuals scoring the same procedure or observations.
REMISSION. Abatement of an illness.
REPRESSION. A DEFENSE MECHANISM that banishes unacceptable ideas, fantasies, affects, or
impulses from consciousness or that keeps out of consciousness what has never been conscious. Although
not subject to voluntary recall, the repressed material may emerge in disguised form. Often confused with
the conscious mechanism of SUPPRESSION.
RETROGRADE. See ANTEROGRADE.
RORSCHACH TEST. A PROJECTIVE TEST requiring that the subject free-associate to ambiguous

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 inkblots. The manner and content of the subject’s perceptions and verbalizations are scored and interpreted
by a trained clinician to reveal hypotheses and insights about the person’s general psychological functioning.

SCHIZOID. See PERSONALITY DISORDERS.

SCHIZOPHRENIA. A large group of disorders, usually of psychotic proportion, manifested by
characteristic disturbances of language and communication, thought, perception, AFFECT, and behavior
that last longer than six months. Thought disturbances are marked by alterations of concept formation that
may lead to misinterpretation of reality, misperceptions, and sometimes DELUSIONS and
HALLUCINATIONS. Mood changes include ambivalence, blunting, inappropriateness, and loss of
empathy with others. Behavior may be withdrawn, regressive, and bizarre. The clinical picture is not
explainable by any of the ORGANIC MENTAL DISORDERS.
SCHIZOPHRENIFORM DISORDER. A disorder whose clinical features are the same as those seen in
SCHIZOPHRENIA, but whose duration is less than that required for a diagnosis of schizophrenia.
SECONDARY GAIN. The external gain derived from any illness, such as personal attention and service,
monetary gains, disability benefits, and release from unpleasant responsibility.
SECONDARY PROCESS. In psychoanalytical theory, mental activity and thinking characteristic of the
EGO and influenced by the demands of the environment. Characterized by organization, systematization,
intellectualization, and similar processes leading to logical thought and action in adult life. See also
PRIMARY PROCESS.
SELECTION BIAS. The inadvertent selection of a nonrepresentative sample of subjects or observations. A
classic example is a 1936 Literary Digest poll that predicted a victory for Alfred Landon over Franklin D.
Roosevelt in the Presidential election because telephone directories were used as a basis for selecting
respondents. In 1936, telephones were owned primarily by persons in higher socioeconomic brackets.
SENSITIVITY. An indication of a test’s capacity to select the individuals who possess the trait or exhibit the
behavior that the test is designed to measure. Compare to SPECIFICITY.
SENSORIUM. Synonymous with “consciousness.” Includes the special sensory perceptive powers and their
central correlation and integration in the brain. A clear sensorium conveys the presence of a reasonably
accurate memory, together with ORIENTATION for time, place, and person.
SOCIAL WORKER. A professional with a graduate degree whose primary concern is how human needs—
both of individuals and of groups—can be met within society. Social and behavioral sciences provide the
educational base of social work. Practice methods are directed to fostering maximal growth in people and to
influencing their environments to become more responsive to their needs. The services provided include
general social services, such as health and education, and welfare services to targeted groups such as
economically disadvantaged individuals, persons with disabilities, elderly persons, or victims of disasters.
SOCIOPATHIC. An unofficial descriptor for an individual with ANTISOCIAL personality or
PSYCHOPATHIC PERSONALITY. See PERSONALITY DISORDERS.
SOMATIC THERAPY. In psychiatry, the biological treatment of mental disorders (e.g., electroconvulsive

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 therapy, psychopharmacological treatment). Contrast with PSYCHOTHERAPY.
SPECIFICITY. An indication of a test’s capacity to select only those individuals possessing the trait or
expressing the behavior that the test is designed to detect. Compare SENSITIVITY.
SPLITTING. A mental mechanism in which the self or others are reviewed as all good or all bad, with
failure to integrate the positive and negative qualities of self and others into cohesive images. Often the
person alternately idealizes and devalues the same person.
STANDARD DEVIATION (SD). A mathematical measure of the dispersion or spread of scores clustered
about the MEAN. In any distribution that approximates a normal curve in form, about 68% of the
measurements will lie within one SD of the mean, and about 95% will lie within two SDs of the mean.
STATISTICAL SIGNIFICANCE. A finding that an observed phenomenon (e.g., a difference between two
groups) is unlikely to have occurred by chance. Conventionally, in the social and behavioral sciences,
findings are held to be statistically significant when p = .05 (i.e., when a group difference of a given
magnitude would be expected by chance fewer than 5 times in 100).
STRESS REACTION. An acute, maladaptive emotional response to industrial, domestic, civilian, or
military disasters, and other calamitous life situations.
SUBCONSCIOUS. Obsolete term. Formerly used to include the PRECONSCIOUS and
UNCONSCIOUS.
SUBLIMATION. A DEFENSE MECHANISM, operating unconsciously, by which instinctual drives,
consciously unacceptable, are diverted into personally and socially acceptable channels.
SUBSTITUTION. A DEFENSE MECHANISM by which an unattainable or unacceptable goal, emotion,
or object is replaced by one that is more attainable or acceptable.
SUGGESTIBILITY. Uncritical compliance or acceptance of an idea, belief, or attribute.
SUPEREGO. In psychoanalytical theory, that part of the personality structure associated with ethics,
standards, and self-criticism. It is formed by identification with important and esteemed persons in early
life, particularly parents. The supposed or actual wishes of these significant persons are taken over as part of
the child’s own standards to help form the conscience. See also EGO and ID.
SUPPRESSION. The conscious effort to control and conceal unacceptable impulses, thoughts, feelings, or
acts.
SYMPTOM. A specific manifestation of a patient’s condition indicative of an abnormal physical or mental
state; a subjective perception of illness.
SYNDROME. A configuration of symptoms that occur together and constitute a recognizable condition.
Examples are battered-spouse syndrome, child abuse accommodation syndrome, and rape trauma
syndrome.

TANGENTIALITY. Replying to a question in an oblique or irrelevant way. Compare with

CIRCUMSTANTIALITY.

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TARDIVE DYSKINESIA. Literally, “late-appearing abnormal movements”; a variable complex of
movements developed in patients exposed to some of the older ANTIPSYCHOTIC DRUGS. Typical
movements include writhing or protrusion of the tongue, chewing, puckering of the lips, finger movements,
toe and ankle movements, jiggling of the legs, or movements of neck, trunk, and pelvis.
TEMPORAL LOBE EPILEPSY. PSYCHOMOTOR EPILEPSY; see EPILEPSY.
THEMATIC APPERCEPTION TEST (TAT). A PROJECTIVE TEST requiring that the subject create
narrative stories in response to a series of pictured cards, usually portraying one or more persons. The
subject’s responses regarding the thoughts and feelings of the stimulus figures, the nature and quality of
their relationship with each other, and techniques they employ in resolving personal or interpersonal
problems are interpreted by the clinician to gain insight into the subject’s own personality. For use with
children, there is the Children’s Apperception Test.
THOUGHT DISORDER. A disturbance of speech, communication, or content of thought, such as
DELUSIONS, IDEAS OF REFERENCE, POVERTY OF THOUGHT, FLIGHT OF IDEAS,
PERSEVERATION, LOOSENING OF ASSOCIATIONS, CLANGING, WORD SALAD, etc. See
also FORMAL THOUGHT DISORDER.
TOKEN ECONOMY. A system involving the application of the principles and procedures of OPERANT
CONDITIONING to the management of a social setting such as a ward, classroom, or halfway house.
Tokens are given contingent upon completion of specified activities and are exchangeable for goods or
privileges desired by the patient or client.
TRANSINSTITUTIONALIZATION. Moving a patient from one facility to another. Compare
DEINSTITUTIONALIZATION.
TRANSFERENCE. The unconscious assignment to others of feelings and attitudes that were originally
associated with important figures (parents, siblings, etc.) in one’s early life. The clinician utilizes this
phenomenon as a therapeutic tool to help the patient understand emotional problems and their origins. In
the patient–clinician relationship, the transference may be negative (hostile) or positive (affectionate). See
also COUNTERTRANSFERENCE.
TRUE NEGATIVE. An accurate opinion that something is not present or will not be present. Compare
FALSE NEGATIVE.
TRUE POSITIVE. An accurate opinion that something is or will be present. Compare FALSE POSITIVE.
TYPE I ERROR. The error that is made when the NULL HYPOTHESIS is true but, as a result of the test
of significance, is rejected or declared false.
TYPE II ERROR. The error that is made when the NULL HYPOTHESIS is false but, as a result of the
test of significance, is not rejected or declared false.

UNCONSCIOUS. That part of the mind or mental functioning of which the content is only rarely subject to
awareness. It is a repository for data that have never been conscious (primary repression) or that may have
become conscious briefly and later repressed (secondary repression). See REPRESSION.

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V

VALIDITY. Accuracy. The degree to which a type of measurement is related to a construct or criterion; for
example, the level of CORRELATION between a test score and a criterion (e.g., school performance) that
the test is designed to predict.
VARIABLE. Any characteristic in any experiment that may assume different values. See INDEPENDENT
VARIABLE and DEPENDENT VARIABLE.
VARIANCE. The square of the STANDARD DEVIATION. Also used interchangeably with “variability.”

WORD SALAD. A rare form of speech disturbance, sometimes observed in persons suffering from
SCHIZOPHRENIA, marked by a mixture of words and phrases that lack meaning or logical coherence.

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Notes

Chapter 1

1. Anonymous, The Whole Duty of a Chemist, 33 NATURE 73, 74 (Nov. 26, 1885).
2. See quotations collected in York University Department of Mathematics, Lies, Damned Lies and Statistics (July 12, 2012), available at
http://www.york.ac.uk/depts/maths/histstat/lies.htm (accessed Aug. 3, 2016).
3. As one statistics professor put it, “Indeed, it is not stretching matters to say that the courts and the bar, and even the public at large, have
come to hold the profession of psychiatry in considerable contempt—as a clan of hired guns, available for a price to whichever side first knocks
on the door.” Paul Meier, Damned Liars and Expert Witnesses, 81 J. AM. STAT. ASS’N 269, 269 (1986).
4. See Melissa Stoeltje, Syndrome or Pseudo-Science?, SAN ANTONIO EXPRESS NEWS, May 4, 2007, at 3A; PETER HUBER,
GALILEO’S REVENGE: JUNK SCIENCE IN THE COURTROOM (1991); David E. Bernstein, Junk Science in the Courtroom, WALL
ST. J., Mar. 24, 1993, at A15; MARGARET A. HAGEN, WHORES OF THE COURT: THE FRAUD OF PSYCHIATRIC
TESTIMONY AND THE RAPE OF AMERICAN JUSTICE (1997).
5. See generally Richard Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J.L. & PUB. POL’Y 10
(1995). See also description of Osby trial, infra note 6.
6. The “abuse excuse” became infamous during the trial of Eric and Lyle Menendez (who argued, ultimately unsuccessfully, that their killing
of their parents was provoked by years of mistreatment) and later in the trial of Lorena Bobbitt (who defended against charges of assault against
her husband by claiming insanity resulting in part from his abuse of her). Id. The “urban survival syndrome” defense was raised in the trial of
Daimian Osby, where Osby’s attorney argued that young black men living in the inner city like Osby were afflicted by a syndrome, characterized
by overwhelming terror when confronted by other young African American men. See Courtland Milloy, Self-Defense Goes Insane in the City,
WASH. POST, May 18, 1994, at D1.
7. See Daniel Slater & Valerie P. Hans, Public Opinion of Forensic Psychiatry Following the Hinckley Verdict, 141 AM. J. PSYCHIATRY
675 (1984).
8. See, e.g., George Will, Insanity and Success, WASH. POST, Jun. 23, 1982, at A27, col. 1 (criticizing the Hinckley verdict); WALTER
WINSLADE, THE INSANITY PLEA: THE USES AND ABUSES OF THE INSANITY DEFENSE (1983).
9. Senate Floor Amendment 1 to Senate Bill 459, 42d Leg., 1st Sess. (N.M. 1995), cited in Scott E. Sundby, The Jury as Critic: An Empirical
Look at How Capital Juries Perceive Expert and Lay Testimony, 83 VA. L. REV. 1109, 1109 (1997).
10. David Bazelon, Veils, Values, and Social Responsibility, 37 AM. PSYCHOLOGIST 115 (1982).
11. CITIZENS COMMISSION ON HUMAN RIGHTS, PSYCHIATRY ERADICATING JUSTICE 8 (1995) (quoting Jeffrey Harris,
executive director of the Attorney General’s Task Force on Violent Crime).
12. See, e.g., Stephen J. Morse, Failed Explanations and Criminal Responsibility: Experts and the Unconscious, 68 VA. L. REV. 971, 1037
(1982); David Faigman, To Have and Have Not: Assessing the Value of Social Science to the Law as Science and Policy, 38 EMORY L.J. 1005,
1073–77 (1989).
13. Douglas Mossman, “Hired Guns,” “Whores,” and “Prostitutes”: Case Law References to Clinicians of Ill Repute, 27 J. AM. ACAD.
PSYCHIATRY & LAW 414 (1999). See also Susan Hatters Friedman et al., Reel Forensic Experts: Forensic Psychiatrists as Portrayed on
Screen, 39 J. AM. ACAD. PSYCHIATRY & LAW 412 (2011) (most persons develop their views of mental health professionals on the basis
of media portrayals).
14. See, e.g., JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW (7th ed. 2010); JUDITH AREEN ET AL.,
LAW, SCIENCE AND MEDICINE (1984); John Monahan & Laurens Walker, Teaching Social Science in Law: An Alternative to “Law and
Society,” 35 J. LEGAL EDUC. 478 (1985).
15. Much of the commentary in the 1980s and 1990s was in the form of debate. Compare, e.g., Rogers Elliott, Social Science Data and the
APA: The Lockhart Brief as a Case in Point, 15 LAW & HUM. BEHAV. 59 (1991), with Phoebe C. Ellsworth, To Tell What We Know or

927
Wait for Godot?, 15 LAW & HUM. BEHAV. 77 (1991); David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241
SCIENCE 31 (1988), David Faust & Jay Ziskin, Response to Fowler and Matarazzo, 241 SCIENCE 1143 (1988), and Jay Ziskin & David
Faust, A Reply to Matarazzo, 46 AM. PSYCHOLOGIST 881 (1991), with Raymond D. Fowler & Joseph D. Matarazzo, Psychologists and
Psychiatrists as Expert Witnesses, 241 SCIENCE 1143 (1988), Joseph D. Matarazzo, Psychological Assessment versus Psychological Testing:
Validation from Binet to the School, Clinic, and Courtroom, 45 AM. PSYCHOLOGIST 999 (1990), and Joseph D. Matarazzo, Psychological
Assessment Is Reliable and Valid: Reply to Ziskin and Faust, 46 AM. PSYCHOLOGIST 882 (1991); William Gardner et al., Asserting Scientific
Authority: Cognitive Development and Adolescent Legal Rights, 44 AM. PSYCHOLOGIST 895 (1989), with Gary B. Melton, Knowing What
We Do Know: APA and Adolescent Abortion, 45 AM. PSYCHOLOGIST 1171 (1990); Gail S. Goodman et al., The Best Evidence Produces the
Best Law, 16 LAW & HUM. BEHAV. 244 (1992), with Ralph Underwager & Hollida Wakefield, Poor Psychology Produces Poor Law, 16
LAW & HUM. BEHAV. 233 (1992); Thomas Grisso & Paul S. Appelbaum, Is It Unethical to Offer Predictions of Future Violence?, 16 LAW
& HUM. BEHAV. 621 (1992), and Thomas Grisso & Paul S. Appelbaum, Structuring the Debate about Ethical Predictions of Future Violence,
17 LAW & HUM. BEHAV. 482 (1993), with Thomas R. Litwack, On the Ethics of Dangerousness Assessments, 17 LAW & HUM. BEHAV.
479 (1993).
16. Faust & Ziskin, The Expert Witness, supra note 15; Faust & Ziskin, Response, supra note 15; Ziskin & Faust, A Reply to Matarazzo,
supra note 15. These articles emanated from Ziskin and Faust’s three-volume treatise, COPING WITH PSYCHIATRIC AND
PSYCHOLOGICAL TESTIMONY (4th ed. 1988), designed to provide ammunition for attorneys attacking mental health testimony. The
book is in its sixth edition (2012) at this writing.
17. One example is the work of Stephen Morse. See § 1.04(a).
18. Fowler & Matarazzo, supra note 15; Matarazzo, Psychological Assessment versus Psychological Testing, supra note 15; Matarazzo,
Psychological Assessment Is Reliable and Valid, supra note 15.
19. A survey of the legal literature through 2015 discloses that such criticism continues, but the supporting citations are to publications from
the 20th century. See, e.g., Dora Klein, Rehabilitating Mental Disorder Evidence after Clark v. Arizona: Of Burdens, Presumptions and the Right
to Raise Reasonable Doubt, 60 CASE W. RES. L. REV. 645, 663 (2010) (repeating the “hired gun” critique, but citing articles from the 1980s
and 1990s, or articles that in turn cite such articles).
20. United States v. Lewellyn, 723 F.2d 615 (1983). See also United States v. Shorter, 618 F. Supp. 255 (D.D.C. 1985); Alan J. Cunnien,
Pathological Gambling as an Insanity Defense, 3 BEHAV. SCI. & L. 85 (1985). The case study is based loosely on Lewellyn and on State v.
Campanaro, Union County Indictment No. 632079 (N.J. Crim. Div. 1981), where expert testimony about pathological gambling was allowed.
At the time of Lewellyn, DSM-III (the version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders
then extant) included the diagnosis of pathological gambling, and, according to expert witnesses at the trial, perhaps 20–25 mental health
professionals had experience with pathological gambling. The study about criminal propensities of pathological gamblers is made up; the
comments concerning studies about suicidal behavior, however, are accurate. See Nancy M. Petry et al., Comorbidity of DSM-IV Pathological
Gambling and Other Psychiatric Disorders: Results from the National Epidemiologic Survey on Alcohol and Related Conditions, 66 J. CLINICAL
PSYCHIATRY 564 (2005); Nancy M. Petry & Brian D. Kiluk, Suicidal Ideation and Suicide Attempts in Treatment-Seeking Pathological
Gamblers, 190 J. NERVOUS & MENTAL DISEASE 462 (2002).
21. At some point, however, even extremely contested concepts such as self-control might be reframed in language understood by both
lawyers and mental health professionals. See Joshua Buckholtz, Valerie Reyna & Christopher Slobogin, A Neuro-Legal Lingua Franca: Bridging
Law and Neuroscience on the Issue of Self-Control, 5 MENTAL HEALTH L. & POL’Y 1 (2016).
22. 214 F.2d 862 (D.C. Cir. 1954).
23. Daniel M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (House of Lords, 1843).
24. Durham was finally overruled and replaced in the District of Columbia by the test found in the American Law Institute’s (ALI’s) Model
Penal Code, United States v. Brawner, 471 F.2d 969 (1972), and then, as in other federal jurisdictions (by Congressional action), by a modified
version of the cognitive prong of the ALI test. See § 8.02(b). Before Brawner, the D.C. Circuit Court, then led by Chief Judge Bazelon, made
several unsuccessful attempts to salvage the Durham rule by limiting its terms. See, e.g., Carter v. United States, 252 F.2d 608 (1957) (defining
“product”); McDonald v. United States, 312 F.2d 847 (1962) (defining “mental illness”). See also Bazelon, supra note 10.
25. See, e.g., Bruce J. Winick, Autonomy: Legal and Psychological Perspectives, 37 VILL. L. REV. 1705, 1755–68 (1992); John Ensminger &
Thomas Liguori, The Therapeutic Significance of the Civil Commitment Hearing: An Unexplored Potential, 6 J. PSYCHIATRY & L. 5 (1978).
26. Ideological conflicts may also be substantial within particular mental health professions, particularly when leaders of professional
organizations rather than ordinary practitioners attempt to shape mental health policy. See, e.g., Lynn Kahle & Bruce D. Sales, Comment on
“Civil Commitment,” MENTAL DISABILITY L. REP. 677 (1978); Gary B. Melton, Organized Psychology and Legal Policymaking:
Involvement in the Post-Hinckley Debate, 16 PROF. PSYCHOL.: RES. & PRAC. 810 (1985).
27. Such a division among the professions was observed, for example, in the amicus briefs submitted in Washington v. Harper, 494 U.S. 210
(1990) (whether prisoners have a constitutional right to refuse psychoactive medication); Mills v. Rogers, 457 U.S. 291 (1982) (whether mental

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patients have a constitutional right to refuse psychoactive medication); and Parham v. J.R., 442 U.S. 584 (1979) (whether parents may admit
their child to a mental hospital without a hearing). In a concurring opinion in Harper, 494 U.S. at 178, Justice Blackmun noted his ambivalence
in evaluating the conflicting briefs of the American Psychiatric Association and the American Psychological Association.
28. See Norman G. Poythress, Psychiatric Expertise in Civil Commitment: Training Attorneys to Cope with Expert Testimony, 2 LAW &
HUM. BEHAV. 1 (1978).
29. That is, “commonsense psychology that explains human behavior in terms of beliefs, desires, intentions, expectations, preferences, hopes,
fears, and so on.” Lynne R. Baker, Folk Psychology, in THE MIT ENCYCLOPEDIA OF THE COGNITIVE SCIENCES 319 (R.A.
Wilson & F.C. Keil eds., 2001).
30. For example, in her May 2015 address to the American Psychiatric Association, the director of the National Institute on Drug Abuse,
Nora Volkow—a psychiatrist and researcher who knows as much as anyone about the brain reward systems that underlie addictions—explained
the suicide of her maternal grandfather (who had alcohol use disorder) as “one last moment of self-hatred,” and her mother’s reaction as “shame
. . . because he had committed suicide out of hopelessness and helplessness at his inability to control the strong urge to drink.” Mark Moran,
Volkow Tells Story of Dopamine, Addiction, and Human Tragedy, 50 PSYCHIATRIC NEWS 1 (June 2015).
31. For example, in linear regression, the square of the correlation coefficient estimates the proportion of variance in a given phenomenon
(i.e., the proportion of individual or group differences) accounted for by a second variable.
32. The real-world generalizability of a study is called its “external validity.” See § 20.02. In the leading case on use of scientific evidence, the
Supreme Court noted that the question of experts’ assistance to the trier of fact is primarily one of relevance or, in scientific terms,
“generalizability.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 591 (1993).
33. Although there are various kinds of scientific reliability, in the present context “reliability” refers to the similarity of conclusions by two or
more observers. Generally, it describes the degree of elimination of error in observation (i.e., the repeatability and stability of measurement). See
§ 20.02. As used in evidence law, reliability is synonymous with scientific “validity.” Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 590–91
n.9 (1993).
34. In psychology, “validity refers to the degree to which evidence and theory support the interpretations of test scores entailed by proposed
uses of tests.” AM. EDUC. RES. ASS’N ET AL., STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING 9
(1999). “Content validity” is an aspect of test validity of key importance to courts; in psychology, this phrase “refers to the degree to which a test
appropriately represents the content domain it is intended to measure.” Stephen G. Sireci, Content Validity, in ENCYCLOPEDIA OF
MEASUREMENT AND STATISTICS 181 (N.J. Salkind ed., 2007). For example, the content validity of a test used to measure disability for
purposes of a guardianship proceeding might be established in part by showing a strong correlation between test scores and actual performance
of various activities of daily living in the community. See § 20.02.
35. See generally CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF LAW, SCIENCE AND
SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS ch. 3 (2007).
36. Richard Rogers, Insanity Evaluations, in LEARNING FORENSIC ASSESSMENT 109–28 (Rebecca Jackson & Ron Roesch eds.,
2008); Richard Rogers & Daniel W. Shuman, The Mental State at the Time of the Offense Measure: Its Validation and Admissibility under
Daubert, 28 J. AM. ACAD. PSYCHIATRY & LAW 23 (2000).
37. Stephen J. Morse, Determinism and the Death of Folk Psychology: Two Challenges to Responsibility from Neuroscience, 9 MINN. J.L. SCI.
& TECH. 1, 2–3, 10 (2008).
38. Id.
39. Kathleen T. Brady & Rajita Sinha, Co-Occurring Mental and Substance Use Disorders: The Neurobiological Effects of Chronic Stress, 162
AM. J. PSYCHIATRY 1483, 1486 (2005).
40. R. Andrew Chambers et al., A Neurobiological Basis for Substance Abuse Comorbidity in Schizophrenia, 50 BIOLOGICAL
PSYCHIATRY 71 (2001).
41. Marina Šagud et al., Smoking and Schizophrenia, 21 PSYCHIATRIA DANUBINA 371 (2009).
42. Nora D. Volkow & R.D. Baler, Addiction Science: Uncovering Neurobiological Complexity, 76 NEUROPHARMACOLOGY 235, 235–
36 (2014).
43. Nora Volkow & Ting-Kai Li, The Neuroscience of Addiction, 8 NATURE NEUROSCI. 1429 (2005).
44. See, e.g., Adrian Raine, Patricia Brennan, & David P. Farrington, Biosocial Bases of Violence: Conceptual and Theoretic Issues, in
BIOSOCIAL BASES OF VIOLENCE 1, 4–20 (Adrian Raine et al. eds., 2014) (explaining types of interactions, offering a model for mutual
effects, and citing several supporting studies).
45. An extraordinary investment has been made in the Human Genome Project, a huge initiative sponsored by the United States
Departments of Energy and of Health and Human Services. This initiative is directed toward “mapping” the human genome (i.e., identifying
the functional significance of particular genetic patterns). See generally GENETICS AND CRIMINALITY: THE POTENTIAL MISUSE
OF SCIENTIFIC INFORMATION IN COURT (Jeffrey R. Botkin et al. eds., 1999).

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 46. Gideon Yaffe & Uri Maoz, What Does Recent Neuroscience Tell Us about Criminal Responsibility?, 2 J.L. & BIOSCI. 1, 20 (Dec. 2015),
available at http://jlb.oxfordjournals.org/content/early/2015/12/30/jlb.lsv051.full?Papetoc (“many of the most difficult and deepest, questions
about criminal responsibility and the brain are no more, or less, tractable in light of recent neuroscientific experiments”).
47. Id. (describing relevant neuroscience research).
48. See Michael S. Moore, Causation and the Excuses, 73 CAL. L. REV. 1091, 1112 (1985).
49. Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 PHIL. TRANSACTIONS
ROYAL SOC’Y BIOLOGICAL SCI. 1776 (2004).
50. See Mark R. Fondacaro & Megan J. O’Toole, American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive
and Consequentialist Responses to Crime, 18 NEW CRIM. L. REV. 477, 503 (2015) (arguing that criminal law must move “from intuitive, folk
psychology models of criminal responsibility that focus on divining atomistic past mental states that decontextualize human behavior and help
justify unduly harsh criminal sanctions. Human behavior is much more complex, better understood, and more fairly judged when analyzed
within a social ecological framework that takes into account the complex interplay of dynamic biological, psychological, and social factors”).
51. See, e.g., MICHAEL MOORE, LAW AND PSYCHIATRY: RETHINKING THE RELATIONSHIP (1985) (discussed in more
detail in § 8.02(c)(2)); Stephen Morse, Brain and Blame, 84 GEO. L.J. 547 (1996).
52. Deborah S. Hasin et al., DSM-5 Criteria for Substance Use Disorders: Recommendations and Rationale, 170 AM. J. PSYCHIATRY 834,
844 (2013).
53. A sampling of articles discussing these issues: Larry H. Strasburger et al., On Wearing Two Hats: Role Conflict in Serving as Both
Psychotherapist and Expert Witness, 154 AM. J. PSYCHIATRY 448 (1997); Douglas Mossman, Is Expert Psychiatric Testimony
Fundamentally Immoral?, 17 INT’L J.L. & PSYCHIATRY 347 (1994); Paul S. Appelbaum, A Theory of Ethics for Forensic Psychiatry, 25 J.
AM. ACAD. PSYCHIATRY & LAW 233 (1997); Douglas Mossman, Is Prosecution “Medically Appropriate”?, 31 NEW ENG. J. ON
CRIM. & CIV. CONFINEMENT 15 (2005); Kenneth S. Pope & Valerie A. Vettner, Ethical Dilemmas Encountered by Members of the
American Psychological Association: A National Survey, 47 AM. PSYCHOLOGIST 397 (1992). See generally § 4.05.
54. For a discussion of the implications of this point for mental health professionals involved in child protection cases, see Gary B. Melton,
Doing Justice and Doing Good: Conflicts for Mental Health Professionals, FUTURE OF CHILDREN, Summer–Fall 1994, at 102.
55. There is, of course, the possibility that the expert will be subtly swayed by the attorney’s “preparation” of him or her and by the desire
simply to be helpful. See Michael J. Saks, Opportunities Lost: The Theory and the Practice of Using Developmental Knowledge in the Adversary
Trial, in REFORMING THE LAW: IMPACT OF CHILD DEVELOPMENT RESEARCH 179 (Gary B. Melton ed., 1987).
56. For a recent discussion, see Ezra E.H. Griffith, Stone’s Views of 25 Years Ago Have Now Shifted Incrementally, 36 J. AM. ACAD.
PSYCHIATRY & LAW 201 (2008).
57. Oliver Wendell Holmes, Learning and Science (speech at a dinner of the Harvard Law School Association in honor of Professor Charles
C. Langdell, June 25, 1895), in SPEECHES 67, 68 (1900).
58. E.g., H.L. v. Matheson, 450 U.S. 398 (1981); Parham v. J.R., 442 U.S. 584 (1979). See Gary B. Melton, Developmental Psychology and
the Law: The State of the Art, 22 J. FAM. L. 445 (1984); see also Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social
Facts: Parham as an Example, 22 J. FAM. L. 633 (1984) (judicially noticed social facts sometimes take on precedential value of their own and
obscure the meaning of case holdings). Although there is some controversy about the confidence that one can have in conclusions about the
relative competence of adolescents and adults (see Gardner et al., supra note 15), there is little disagreement that the foundation is lacking for
judicial conclusions about widespread incompetence of adolescents. See Gary B. Melton, APA and Adolescent Abortion: Knowing What We Do
Know, 45 AM. PSYCHOLOGIST 1171 (1990).
59. For a decision in which the majority of Supreme Court Justices found psychological evidence persuasive, see Atkins v. Virginia, 536 U.S.
304 (2002) (barring execution of persons with intellectual disabilities).
60. Craig Haney, Psychology and Legal Change: On the Limits of a Factual Jurisprudence, 4 LAW & HUM. BEHAV. 147, 165 (1980).
61. Am. Psychol. Ass’n, Specialty Guidelines for Forensic Psychology, 68 AM. PSYCHOLOGIST 1 (2013); Am. Acad. of Psychiatry & the
Law, Ethics Guidelines for the Practice of Forensic Psychiatry (May 2005), available at http://www.aapl.org/ethics.htm (accessed Aug. 24, 2015).
62. See § 18.07 and citations therein.
63. For example, the Ohio Revised Code directs the examiner to state whether “the defendant is capable of understanding the nature and
objective of the proceedings against the defendant or of assisting in the defendant’s defense.” OHIO REV. CODE ANN. § 2945.371(G)(3)(a)
(West 2014). Like all state statutes governing forensic practitioners’ reports on competence to stand trial, this requirement calls for a yes-or-no
judgment about a capability—competence—that actually lies along a continuum.
64. See, e.g., Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) (lauding an expert who provided individualized rather than research-
based testimony); State v. McLean, 183 N.C. App. 429, 645 S.E.2d 162 (2007), review denied, 361 N.C. 700, 654 S.E.2d 706 (2007)
(excluding eyewitness testimony “where the expert had not interviewed the victims, had not visited the crime scene, and had not observed the
witnesses’ trial testimony”); United States v. Serna, 799 F.2d 842 (2d Cir. 1986); United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973)

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(rejecting probabilistic testimony). Some evidence exists for a legal preference for testimony by clinicians even when basic research is being
presented. See § 18.07(a).
65. David L. Faigman & Claire Leskar, Organized Common Sense: Some Lessons from Judge Jack Weinstein’s Uncommonly Sensible Approach
to Expert Evidence, 64 DEPAUL L. REV. 421 (2015) (“This expression [reasonable degree of medical/psychological certainty] has no empirical
meaning and is simply a mantra repeated by experts for purposes of legal decision makers who similarly have no idea what it means”); Robert D.
Miller, Reasonable Medical Certainty: A Rose by Any Other Name, 34 J. PSYCHIATRY & L. 273, 278 (2006).
66. See David L. Faigman, John Monahan & Christopher Slobogin, Group to Individual (G2i) Inference in Scientific Expert Testimony, 81 U.
CHI. L. REV. 417 (2014).
67. “Nomothetic,” from the Greek word for “legislator,” refers generally to the study or discovery of general scientific laws. Since the 1930s,
psychologists have used the term to refer to the study of groups or classes of persons. See, e.g., GORDON W. ALLPORT, PERSONALITY:
A PSYCHOLOGICAL INTERPRETATION 22 (1937).
68. State v. Middleton, 668 P.2d 371 (Or. 1983). Similar testimony has been at issue in scores of appellate cases in recent years. See §
15.04(c)(4).
69. State v. Loebach, 310 N.W.2d (Minn. 1981).
70. See United States v. Mendenhall, 446 U.S. 544 (1980). In the surveillance campaign of which this case was a part, the stops were not
solely the result of correlation between those stopped and the profile. Tips from informants, information from ticket agents, and other sources
all contributed.
71. This hypothetical scenario is based on a score that might be derived from the Sex Offender Risk Appraisal Guide (SORAG). Higher
scores on the SORAG are associated with parental alcoholism (item 3) and failure to meet diagnostic criteria for schizophrenia (item 12). See
VERNON L. QUINSEY ET AL., VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK 261–64 (2d ed. 2006).
72. For a general treatment of this issue from an evidentiary perspective, see Faigman et al., supra note 66.
73. This type of evidence has been called “social framework” evidence. See Laurens Walker & John Monahan, Social Frameworks: A New Use
of Social Science in Law, 73 VA. L. REV. 559 (1987). The phrase refers to generalizable information that is presented to provide a framework
with which to determine a factual issue (e.g., reliability of an eyewitness identification) in a particular case. Walker and Monahan argue that
such information (like law) should be presented to the court through briefs and to the jury through instructions.
74. Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329 (1971).
75. Tribe would permit mathematical evidence to be presented to negate a misleading impression that might be left by expert opinion. Id. at
1377.
76. Tribe, supra note 74, at 1368–72.
77. Id. at 1361–66.
78. Id. at 1372–75.
79. Id. at 1375–77.
80. Michael J. Saks & Robert Kidd, Human Information Processing and Adjudication, 15 LAW & SOC’Y REV. 123 (1980–81).
81. Buck v. Davis, 137 S.Ct. 759, 778 (2017); see also Daniel Goodman, Demographic Evidence in Capital Sentencing, 39 STAN. L. REV.
499, 508–27 (1987).
82. See, e.g., Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 STAN. L. REV. 803 (2014)
(arguing that actuarial risk prediction in sentencing is both unconstitutional and immoral); Goodman, supra note 81; Barbara Underwood, Law
and the Crystal Ball: Predicting Behavior with Statistical Inference and Individualized Judgment, 88 YALE L.J. 1408 (1979).
83. FED. R. EVID. 401 states that all relevant evidence is admissible except as provided for in other rules. The principal rule limiting the
admissibility of relevant evidence is Rule 403, which bars evidence whose “probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” All relevant evidence is “prejudicial” to one party or the other. When used in this chapter, “prejudice” refers to the “unfair
prejudice” mentioned in Rule 403, meaning a tendency on the part of the evidence to mislead or “overpower” the jury.
84. See Richard N. Kocsis & George B. Palermo, Disentangling Criminal Profiling: Accuracy, Homology, and the Myth of Trait-Based
Profiling, 59 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 313 (2015) (arguing that until now, research on offender
homology may only reflect analyses of different people who have committed roughly similar types of crimes); Pascale Chifflet, Questioning the
Validity of Criminal Profiling: An Evidence-Based Approach, 48 AUST. & N.Z. J. CRIMINOLOGY 238 (2015) (arguing that “profiling is
based on theories that are uncertain at best, and little research has been undertaken to assess the actual accuracy of generated profiles”).
85. See Christopher Slobogin, The World without a Fourth Amendment, 39 UCLA L. REV. 1, 82–86 (1991) (conceding that such profiles
are questionable statistically, but arguing that if a solid statistical foundation does exist, use of such profiles to stop individuals is little different
from traditional police work that relies on past experiences, and in any event is not inimical to the probability assessment at issue during the
investigative phase).

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 86. FED. R. EVID. 404.
87. See Hal R. Arkes, Principles in Judgment/Decision Making Relevant to Legal Proceedings, 7 BEHAV. SCI. & L. 429, 435–42 (1989).
88. Cf. SLOBOGIN, supra note 35, at 122–125.
89. Daniel A. Krauss & Bruce D. Sales, The Effects of Clinical and Scientific Testimony on Juror Decision Making in Capital Cases, 7
PSYCHOL. PUB. POL’Y & L. 267, 305 (2003) (finding that “jurors weigh clinical opinion expert testimony more heavily than actuarial expert
testimony” and that “adversarial procedures may be insufficient to remove this bias”): Daniel A. Krauss et al., The Effects of Rational and
Experiential Information Processing of Expert Testimony in Death Penalty Cases, 22 BEHAV. SCI. & L. 801, 814 (2004) (same); N.Z. Hilton et
al., Communicating Violence Risk Information to Forensic Decision Makers, 32 CRIM. JUST. & BEHAV. 97 (2005) (finding that qualitative, as
opposed to quantitative, estimates of risk significantly inflate risk estimates).
90. FED. R. EVID. 704, advisory committee’s note.
91. See Christopher Slobogin, The “Ultimate Issue” Issue, 7 BEHAV. SCI. & L. 259, 259–60 (1989) and citations therein. But see Richard
Rogers & Charles P. Ewing, Ultimate Opinion Proscriptions: A Cosmetic Fix and a Plea for Empiricism, 13 LAW & HUM. BEHAV. 357
(1989). In contrast, front-line practicing legal professionals rate ultimate-issue testimony as highly important and desirable. Richard E. Redding
et al., What Judges and Lawyers Think about the Testimony of Mental Health Experts: A Survey of the Courts and Bar, 19 BEHAV. SCI. & L.
583 (2001); Lindsey Peterson, Answering the Ultimate Legal Question: A Survey of Lawyers and Psychologists 29 (unpublished Ph.D.
dissertation, Drexel University, on file with the Drexel University Library, 2015) (“Lawyers prefer to have forensic mental health evaluation
reports that always contain ultimate issue opinions, whereas psychologists prefer to offer such opinions on a more limited basis, if at all”).
92. See, e.g., Am. Psychol. Ass’n, Ethical Principles of Psychologists and Code of Conduct, Including 2010 Amendments, especially principle D
& std. 1.02, available at https://www.apa.org/ethics/code/index.aspx; Am. Psychol. Ass’n, Specialty Guidelines for Forensic Psychologists, supra
note 61, stds. 1.02, 7.02, and 11.01. These provisions are discussed in detail in § 18.07.
The qualifier in regard to role (i.e., that clinicians acting as experts should refrain from providing ultimate-issue opinions) relates to the fact
that mental health professionals sometimes are in the role of legal decisionmakers. For example, mental health professionals often are
empowered to issue emergency orders as the first step in civil commitment, and they always are required to report suspected child maltreatment.
In such instances, a legal decision (e.g., whether a person with mental illness is so imminently dangerous that he or she should be immediately
hospitalized involuntarily) is required; hence an ultimate-issue opinion is not only permissible but necessary. On the other hand, when a
clinician moves from decisionmaker to expert—for example, when the clinician testifies in a commitment hearing about the individual whom he
or she hospitalized—then the ultimate opinion formation should be reserved for the court.
93. Several authors have criticized the versions of this position that appeared in previous editions of this text. For a useful summary of
counterarguments, see Richard Rogers & Charles Patrick Ewing, The Prohibition of Ultimate Opinions: A Misguided Enterprise, 3 J.
FORENSIC PSYCHOL. PRAC. 65 (2003).
94. See Stephen J. Morse, Law and Mental Health Professionals: The Limits of Expertise, 9 PROF. PSYCHOL. 389 (1978). For more recent
arguments to the effect that opinion testimony from mental health professionals ought to be seriously circumscribed, see Edward Imwinkelried,
The Case against Abandoning the Search for Substantive Accuracy, 38 SETON HALL L. REV. 1031 (2008) (arguing that clinical testimony
not backed up by psychometrically valid malingering tests should be considered highly suspect); Faigman, supra note 12, at 1013 (arguing that
there is no distinction between suppositional testimony from mental health professionals and “Dostoevskean psychologist[s]”).
95. Morse, supra note 94, at 392.
96. Empirically, specific symptoms—not diagnoses per se—affect potentially functional legal abilities, and these symptoms should determine
experts’ judgments about psychological abilities. See Barry Rosenfeld & Alysa Wall, Psychopathology and Competence to Stand Trial, 25 CRIM.
JUST. & BEHAV. 443 (1998). Diagnoses do not translate directly into the legal concept of “mental disease or defect,” and certainly not into
conclusions about the degree of impairment of certain functions. Indeed, DSM-5 recognizes as much. AM. PSYCHIATRIC ASS’N,
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 25 (5th ed. 2013). Diagnoses may relate to relevant
characteristics of and research on mental disorders, however, and they can serve as a convenient shorthand. DSM-5 also suggests:

[W]hen the presence of a mental disorder is the predicate for a subsequent legal determination (e.g., involuntary civil commitment), the use
of an established system of diagnosis enhances the value and reliability of the determination. . . . [D]iagnostic information about longitudinal
course may improve decision making when the legal issue concerns an individual’s mental functioning at a past or future point in time.

Thus, although omission of diagnoses from forensic reports might offer some advantages, omission might create some problems, too. See §
8.07(a).
97. See generally ZISKIN & FAUST, COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY, supra note 16.
98. Richard J. Bonnie & Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed
Speculation, 66 VA. L. REV. 427 (1980).
99. It is important to note that a particular opinion, although equally relevant in two legal contexts, might be admissible in one context but

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not the other. Where the prejudicial import of evidence varies, so too would its admissibility. Hence the standard of admissibility should be
somewhat stricter in civil commitment proceedings, where experts’ opinions typically go unchallenged, than in insanity cases, where jurors tend
to be skeptical of experts’ opinions. This point is developed further below in § 1.04(b).
100. See generally SLOBOGIN, supra note 35, chs. 3–5.
101. GARY B. MELTON ET AL., COMMUNITY MENTAL HEALTH CENTERS AND THE COURTS: AN EVALUATION
OF COMMUNITY-BASED FORENSIC SERVICES 43–55 (1985).
102. Stephen J. Morse, Failed Explanations and Criminal Responsibility: Experts and the Unconscious, 68 VA. L. REV. 971, 1016–18 (1982).
103. On the importance of understanding forensic explanation as storytelling, see Ezra E.H. Griffith et al., Conceptualizing the Forensic
Psychiatry Report as Performative Narrative, 38 J. AM. ACAD. PSYCHIATRY & L. 32 (2010) (explaining that narrative in forensic writing
“is grounded in the discipline of psychiatry, relies on ethics-based principles of respect for persons and truth-telling, and uses language to tell a
story that persuades the legal audience”).
104. It should be noted that we are not arguing that psychodynamic opinions should be admissible simply because they have achieved
widespread scientific acceptance. As we discuss later, such a standard has been largely discredited legally. See § 1.04(c). It is unlikely in any event
to correspond completely with usefulness to the trier of fact. Our approval of admission of psychodynamic opinions in some contexts is based on
the assumption that opinions derived from a coherent, if unproven, scientific theory may offer the factfinder some assistance in constructing the
range of plausible explanations for particular behavior. For an argument developing this point of view in connection with equally “unscientific”
character evidence, see Andrew Taslitz, Myself Alone: Individualizing Justice through Psychological Character Evidence, 52 MD. L. REV. 1
(1993).
105. See SLOBOGIN, supra note 35, at 53–55 (arguing, based on the Supreme Court’s decision in Rock v. Arkansas holding that states may
not prevent a defendant from presenting his own hypnotically induced testimony as well as the compulsory process clause, that defendants have
a right to voice their past mental state arguments through an expert). See also Christopher Slobogin, The Right to Voice Reprised, 40 SETON
HALL L. REV. 1647 (2010).
106. Richard Rogers et al., “Everyone Knows Their Miranda Rights”: Implicit Assumptions and Countervailing Evidence, 16 PSYCHOL.
PUB. POL’Y & L. 300 (2010) (subjects held many misconceptions, including what the “right to remain silent” means, irrespective of their
intelligence, education, or arrest history).
107. Cf. Slobogin, supra note 91 (arguing for this position). Fulero and Finkel found that the lack of rebuttal experts significantly affected
outcome, whether testimony was framed in ultimate, penultimate, or diagnostic terms (levels 7, 6, and 5 in our schema). Solomon M. Fulero &
Norman J. Finkel, Barring Ultimate Issue Testimony: An “Insane” Rule?, 15 LAW & HUM. BEHAV. 495 (1991).
108. An important empirical issue is whether legal decision-makers will accept such statements of caution, particularly when also faced with
experts who, by contrast, overstep the bounds of expertise. See § 18.07(a).
109. This section is based in part on Gary B. Melton, Expert Opinions: “Not for Cosmic Understanding,” in PSYCHOLOGY IN
LITIGATION AND LEGISLATION (Bruce D. Bales & Gary Van den Bos eds., 1994).
110. 392 F. 1013 (D.C. Cir. 1923).
111. Note that this language is very similar to that in Rule 703 (see Table 1.2). Some have wondered whether Rule 703 was meant to
incorporate the Frye test. STEPHEN SALTZBURG & KENNETH REDDEN, FEDERAL RULES OF EVIDENCE MANUAL 452 (3d
ed. 1982). However, the history of the rule suggests that it was meant to get at another problem: the admissibility of expert testimony based on
facts that are not otherwise admissible (e.g., hearsay). This issue is discussed at length in § 3.07.
112. See, e.g., People v. Beckley, 456 N.W.2d 391, 404 (Mich. 1990) (recognizing a “fundamental difference between techniques and
procedures based on chemical, biological, or other physical sciences as contrasted with theories and assumptions that are based on the behavioral
sciences,” and holding that Frye should not apply to the latter).
113. Indeed, even with respect to predictions of dangerousness, which are generally considerably relatively unreliable, courts have had no
difficulty permitting clinical testimony from those who believe it is “accepted,” whether the legal context is civil commitment or the death
penalty. See SLOBOGIN, supra note 35, at 108–09.
114. See, e.g., Jahnke v. State, 682 P.2d 991 (Wyo. 1984) (rejecting battered-child syndrome testimony on this ground).
115. See, e.g., State v. Free, 798 A.2d 83 (N.J. Super. Ct. App. Div. 2002) (concluding that a testifying psychologist’s premises had not
“gained general acceptance” and “that the opinions offered in his report are inadmissible as not scientifically reliable” under New Jersey law).
116. For a general exposition of these points, see Paul Gianelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half-
Century Later, 80 COLUM. L. REV. 1197 (1980) (also noting that determining the relevant “field” and whether “acceptance” was “general”
enough caused additional problems under Frye).
117. 509 U.S. 579 (1993).
118. The adjectives describing the two approaches can be found in Daubert. Id. at 588–89.
119. Black’s Law Dictionary defines “dictum” as follows: “The word is generally used as an abbreviated form of obiter dictum, ‘a remark by the

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way’; that is, an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application
of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case . . . ” BLACK’S LAW DICTIONARY
454 (6th ed. 1990). Dicta thus have some precedential value because they indicate the thinking of a court and the analysis that it might apply if a
particular issue related to the case at hand were before the court. Nonetheless, because dicta are not part of the holding in regard to the question
litigated, they are not controlling on subsequent or inferior courts. See § 20.01.
120. 509 U.S. at 597.
121. Id. at 592–93.
122. Id. at 593–94.
123. Id. at 594–95.
124. Michael Gottesman, Admissibility of Expert Testimony after Daubert: The “Prestige” Factor, 43 EMORY L.J. 867, 875–76 (1996).
125. See, e.g., United States v. Rouse, 100 F.2d 560, 567–68 (1996) (stating that Daubert “specifically noted that the discussion was limited
to a scientific context,” and suggesting that “social science” should be treated differently).
126. 526 U.S. 137 (1999).
127. Id. at 148.
128. Two years earlier, the Court had made clear that it is the job of the trial judge, not the jury, to apply the Daubert criteria. General
Electric Co. v. Joiner, 522 U.S. 136 (1997). The Court emphasized that the judge must play a “gatekeeper” role with respect to admissibility
decisions, and that his or her decision, whether to exclude or admit, must be given great deference on appeal.
129. See Post-Daubert Standards for Admissibility of Scientific and other Expert Evidence in State Courts, 90 A.L.R. 5th 453, § 2 (2001). This
source identifies the following states as Daubert jurisdictions: Alaska, Arkansas, Colorado, Connecticut, Delaware, Idaho, Indiana, Iowa,
Kentucky, Louisiana, Maine, Mississippi, Montana, Nebraska, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia, Wyoming. The following states are identified as Frye jurisdictions:
Arizona, California, District of Columbia, Florida, Illinois, Kansas, Maryland, Michigan, Minnesota, Missouri, New York, North Dakota,
Pennsylvania, Washington. Further, the source notes that the test in several states, including some of those already listed, varies depending on
the type of case. In 2015, Florida appeared to replace Frye with Daubert, FLA. STAT. § 90.702, but then may have reneged. See 210 So. 3d.
1231 (2017).
130. See, e.g., Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 409 (2004) (excluding testimony about the psychological effects of sexual
harassment under a Frye test, but noting that “[r]egardless of which test the court applies, the court may admit evidence only once it ensures,
pursuant to [the Michigan equivalent of Rule 702], that expert testimony meets that rule’s standard of reliability”). For a state-by-state review as
of 2004 showing that most states either adopted Daubert or interpret their law consistently with Daubert, see David E. Bernstein & Jeffrey D.
Jackson, The Daubert Trilogy in the States, 44 JURIMETRICS J. 351, 355 n.25 (2004).
131. Veronica B. Dahir, Judicial Application of Daubert to Psychological Syndrome and Profile Evidence, 11 PSYCHOL. PUB. POL’Y & L.
62, 78 (2005) (stating, based on a survey of 325 state court judges prior to Kumho, that “it appears that Daubert’s influence on judicial
admissibility decisions for [profiles and syndrome] evidence is insignificant, leading us to conclude that one reason that psychology is still
considered part of the ‘soft sciences’ is that judges seldom hold the discipline to the same rigorous methodological standards as the ‘hard
sciences’ ”); Henry F. Fradella et al., The Impact of Daubert on Behavioral Science Testimony, 30 PEPPERDINE L. REV. 403 (2003) (finding
virtually no impact); Jennifer L. Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal
Cases, 8 PSYCHOL. PUB. POL’Y & L. 339 (2002) (an empirical study of criminal cases concluded in 1998 finding that there was only a
marginally significant decline in the proportion of expert evidence admitted, although judges were clearly scrutinizing such evidence more
closely after Daubert).
132. See, e.g., Jonathan E. Sherin & Charles B. Nemeroff, Post-Traumatic Stress Disorder: The Neurobiological Impact of Psychological
Trauma, 13 DIALOGUES CLINICAL NEUROSCI. 263, 267 (2011).
133. See, e.g., Ronald Allen, Expertise and the Daubert Decision, 84 J. CRIM. L. & CRIMINOLOGY 1157 (1994); Kenneth J. Chesebro,
Galileo’s Retort: Peter Huber’s Junk Scholarship, 42 AM. U. L. REV. 1637 (1993); Edward J. Imwinkelreid, Attempts to Limit the Scope of the
Frye Standard for the Admission of Scientific Evidence: Confronting the Real Cost of the General Acceptance Test, 10 BEHAV. SCI. & L. 441
(1992); Michael S. Jacobs, Testing the Assumptions Underlying the Debate about Scientific Evidence: A Closer Look at Juror “Incompetence” and
Scientific “Objectivity,” 25 CONN. L. REV. 1083 (1993); Neil Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving
Scientific/Medical Issues?: Some Data from Medical Malpractice, 43 EMORY L.J. 885 (1994). For a good debate on this issue, compare
Faigman, supra note 12, with Taslitz, supra note 104.
134. Cf. Rosemary L. Flint, Note, Child Sexual Abuse Accommodation Syndrome: Admissibility Requirements, 23 AM. J. CRIM. L. 171, 190
(1995) (noting that “child sexual abuse accommodation syndrome” may be the best evidence that will ever be available in child sexual abuse
cases, as such abuse cannot be experimentally recreated, controlled, or evaluated).
135. Maureen O’Connor et al., Mental Health Professional Expertise in the Courtroom, in LAW, MENTAL HEALTH, AND MENTAL

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DISORDER 40, 51–54 (Bruce D. Sales & Daniel W. Shuman eds., 1996); Slobogin, supra note 105, at 1656.
136. 526 U.S. at 142.
137. Id. at 150.
138. Id. at 156.
139. Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962).
140. For detailed overviews of the limits of authority for various types of mental health professionals, see the state-by-state series of
monographs on law affecting psychological practice edited by Bruce D. Sales and published by the American Psychological Association. For
empirical studies about judicial preferences for experts from different mental health disciplines, see Norman G. Poythress, Psychological Issues in
Criminal Proceedings: Judicial Preference Regarding Expert Testimony, 10 CRIM. JUST. & BEHAV. 175 (1983); A. Daniel Yarmey & P.
Karen Popiel, Judged Value of Medical versus Psychological Expert Witnesses, 11 INT’L J.L. & PSYCHIATRY 195 (1988); Redding et al.,
supra note 91, at 587 (finding that judges, defense attorneys, and prosecutors expressed a preference for psychiatrists over other mental health
professionals as expert witnesses).
141. To take just one example, assessing intellectual disability for purposes of capital punishment eligibility [discussed further in Chapter 9]
usually requires administration of intelligence tests—something that few psychiatrists know how to do, but that many clinical psychologists do
well.
142. Russell Petrella & Norman G. Poythress, The Quality of Forensic Examinations: An Interdisciplinary Study, 51 J. CONSULTING &
CLINICAL PSYCHOL. 6 (1983).
143. Jodi Viljoen, Ronald Roesch & Patricia Zapf, Interrater Reliability of the Fitness Interview Test across 4 Professional Groups, 47 CAN. J.
PSYCHIATRY 945 (2002).
144. We have omitted the other major group of mental health professionals, psychiatric nurses, from this brief discussion because they have
not been included in the relevant research. However, those nurses with substantial (master’s-level) training in mental health could well serve
competently as mental health experts. Also, where the opinions being offered concern research reports rather than clinical impressions, other
professionals (e.g., sociologists, social psychologists) may offer the most extensive and up-to-date testimony.

Chapter 2

1. See W. William Hodes, Congressional Federalism and the Judicial Power: Horizontal and Vertical Tension Merge, 32 IND. L. REV. 155
(1998).
2. For example, the Court invalidated a provision of the Brady Bill, enacted as part of a Congressional effort to create some checks on the
purchase of handguns, on the ground that the statute improperly forced local law enforcement officials to take certain actions. Gene R. Nichol,
Justice Scalia and the Printz Case: The Trials of an Occasional Originalist, 70 U. COLO. L. REV. 953 (1999). The Court has also made clear
that only it, not Congress, may enlarge constitutional protections, and in doing so has appeared to some commentators to be improperly
inserting itself in decisions properly left to Congress. For a review, see Robert J. Kaczorowski, Popular Constitutionalism versus Justice in
Plainclothes: Reflections from History, 73 FORDHAM L. REV. 1415 (2005).
3. For a general review of Congressional efforts to shape mental health policy, both substantively and fiscally, see John Petrila & Bruce
Lubotsky Levin, Mental Disability Law, Policy, and Service Delivery, in MENTAL HEALTH SERVICES: A PUBLIC HEALTH
PERSPECTIVE ch. 3 (Bruce Lubotsky Levin et al. eds., 2d ed. 2004).
4. See Roper v. Simmons, 543 U.S. 551 (2005) (exempting juveniles from the death penalty); Atkins v. Virginia, 536 U.S. 304 (2002)
(exempting people with intellectual disabilities from the death penalty).
5. 42 C.F.R. §§ 2.1.290(ee)–3(a) (2006) (providing that federal law applies in all cases involving a “drug abuse prevention function
conducted, regulated, or directly or indirectly assisted by any department or agency of the United States”).
6. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
7. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 317 (1819).
8. For access to the treaties and an indication of signatory and ratifying states, see http://indicators.ohchr.org.
9. For instance, in Matter of the Guardianship of Dameris L., 956 N.Y.S.2d 848, 855 (2012), the court stated that the CRPD is entitled to
“persuasive weight.”
10. MICHAEL L. PERLIN, INTERNATIONAL HUMAN RIGHTS AND DISABILITY LAW 24 (2012).
11. UNITED NATIONS, CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, art. 12, available at
https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities/convention-on-the-rights-of-persons-
with-disabilities-2.html#content [hereinafter CRPD].
12. U.N. Human Rights Council, Thematic Study by the United Nations High Commission of Human Rights on Enhancing Awareness and
Understanding on the Convention on the Rights of Person with Disabilities, para. 45, available at

935
http://www.undg.org/docs/10541/A.HRC.10.48.english.pdf [hereinafter U.N. Rights Council].
13. Id., para. 47.
14. CRPD, supra note 11, art. 14.
15. U.N. Human Rights Council, supra note 12, at para. 48. For more detailed analysis of the possible impact of the CRPD, see Christopher
Slobogin, Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of
Persons with Disabilities on the Insanity Defense, Civil Commitment and Competency Law, 40 INT’L J.L. & PSYCHIATRY 40 (2015).
16. UNITED NATIONS, CONVENTION ON THE RIGHTS OF THE CHILD art. 3, available at
http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf.
17. Id., art. 12.
18. Id., art. 24.
19. Id., art. 26.
20. Id., art. 28.
21. For a discussion and comparison of the two systems, see Michael K. Block & Jeffrey S. Parker, Decision Making in the Absence of
Successful Fact Finding: Theory and Experimental Evidence on Adversarial versus Inquisitorial Systems of Adjudication, 24 INT’L REV. L. &
ECON. 89 (2004).
22. In many states, the “appeal” of a misdemeanor conviction is a trial de novo, meaning that the “appellate” court, which is usually the felony
trial court, retries the case from scratch. The de novo device developed because transcripts were not kept of misdemeanor proceedings. For a
description and critique of how this process works in one state, see Benjamin Will Bates, Exploring Justice Courts in Utah and Three Problems
Inherent in the Justice Court System, 2001 UTAH L. REV. 731 (2001). The question of whether such proceedings violate the double jeopardy
provision of the United States Constitution has generally been rejected. See Developments in State Constitutional Law: 1998: VII. Criminal
Procedure: Trial and Post-Trial Issues, 30 RUTGERS L.J. 1333 (1999).
23. 28 U.S.C. § 1251. See also U.S. CONST. art. III(d).
24. 28 U.S.C. §§ 1252, 1254.
25. 441 U.S. 418 (1979).
26. 494 U.S. 210 (1990).
27. 536 U.S. 304 (2002).
28. In re Winship, 397 U.S. 358 (1970).
29. See, e.g., United States v. Wade, 388 U.S. 218 (1967). However, the Court has held that a conviction does not violate the Sixth
Amendment if the defendant received no prison time. Argersinger v. Hamlin, 407 U.S. 25 (1972).
30. U.S. CONST. amend. VI.
31. Gerstein v. Pugh, 420 U.S. 103 (1975); Riverside Cty. v. McLaughlin, 500 U.S. 44 (1991).
32. See, e.g., 18 U.S.C. §§ 3141–50 (1984).
33. Brady v. Maryland, 373 U.S. 83 (1963).
34. CHARLES WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND
CONCEPTS § 23.02(a) (4th ed. 2000).
35. McCarthy v. United States, 394 U.S. 459 (1969).
36. See BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 1998, at
8–9 (2001), cited at n.1 in Ronald Wright & Mark Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29 (2002). The number of
cases resolved by plea bargaining has increased steadily over many decades. A number of commentators have argued that too many cases are
resolved in this fashion; others argue that taking every case to trial would effectively bring the criminal justice system to a standstill. Wright and
Miller call this argument a “false paradox” and contend that better prosecutorial screening of cases could reduce the number of criminal cases
brought forward. Regardless, it seems unlikely that the reliance on plea bargains will be dramatically reduced in the foreseeable future.
37. Apodaca v. Oregon, 406 U.S. 404 (1972); Johnson v. Louisiana, 406 U.S. 356 (1972).
38. 463 U.S. 880 (1983). See § 9.05(a).
39. 477 U.S. 399 (1986). See § 7.08(b).
40. Joan Petersilia, When Prisoners Return to Communities: Political, Economic, and Social Consequences, 65 FED. PROBATION 3 (2001).
41. In capital cases, the usual alternative to the death penalty is “life without parole,” an alternative some predicted would reduce the number
of death sentences. However, one commentary concludes that the impact has been minimal. Note, A Matter of Life and Death: The Effect of Life-
without-Parole Statutes on Capital Punishment, 119 HARV. L. REV. 1838 (2006).
42. Vitek v. Jones, 445 U.S. 488 (1980).
43. See § 8.02(a)(2).
44. Michael McConville & Chester L. Mirsky, The Skeleton of Plea Bargaining, NEW L.J. 1373 (Oct. 9, 1992). Despite these perceptions of

936
attorneys who represent the indigent, however, empirical findings suggest that court-appointed and public defender attorneys are fully as
effective as privately retained counsel. See NAT’L CENTER FOR STATE COURTS, INDIGENT DEFENDERS: GET THE JOB
DONE AND DONE WELL (1992).
45. Neglect proceedings in which the state seeks custody over the child represent a unique category of cases. See generally Chapter 15. They
are not “civil” in the sense that this term is used here; nor are they “criminal” or “quasi-criminal,” as either term is used in this chapter. They are
most closely analogous to administrative proceedings, described below, which involve an attempt by the state to deprive an individual of
“property.”
46. FED. R. CIV. P. 35.
47. FED. R. CIV. P. 26(a)(2).
48. FED. R. CIV. P. 26(a)(1)(A).
49. FED. R. CIV. P. 26(b)(4)(B).
50. See FED. R. CIV. P. 26(b)(5).
51. FED. R. CIV. P. 48.
52. See, e.g., Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978). The right to refuse treatment, covered in Chapter 11, remains controversial.
As Chapter 11 suggests, the courts have split on the question of whether a court must hear the case of a treatment provider attempting to treat a
person involuntarily, or whether a nonjudicial body may hear the case.
53. Addington v. Texas, 441 U.S. 418 (1979).
54. See, e.g., Lessard v. Schmidt, 349 F. Supp. 1078 (1972).
55. McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
56. In re Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967).
57. Derek A. Denckla, Essay: Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal
Law, 27 FORDHAM URBAN L.J. 1613 (2000).
58. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISON AND JAIL INMATES AT MIDYEAR 1997 (2001).
59. The President’s New Freedom Commission on Mental Health, established by President George W. Bush, reported in 2003 that
approximately 13 million individuals had been arrested in the United States in the previous year, and identified the need for expanded diversion
and treatment services for individuals with mental disorders in the correctional system as one of the most pressing issues facing federal and state
governments. NEW FREEDOM COMMISSION ON MENTAL HEALTH, ACHIEVING THE PROMISE: TRANSFORMING
MENTAL HEALTH CARE IN AMERICA (2003).
60. National Drug Court Resource Center, How Many Drug Courts Are There?, available at http://www.ndcrc.org/content/how-many-drug-
courts-are-there (reporting 3,133 such courts as of June 30, 2015).
61. Steven Belenko, The Challenges of Integrating Drug Treatment into the Criminal Justice Process, 63 ALBANY L. REV. 833 (2000).
62. Justice Center, The Council of State Governments, Mental Health Courts, available at http://csgjusticecenter.org/mental-health-court-
project.
63. Allison Redlich et al., Patterns of Practice in Mental Health Courts: A National Survey, 30 LAW & HUM. BEHAV. 347 (2006). See also
Alison Redlich et al., The Second Generation of Mental Health Courts, 11 PSYCHOL. PUB. POL’Y & L. 527, 527 (2005).
64. David B. Wexler & Bruce J. Winick, Introduction, in ESSAYS IN THERAPEUTIC JURISPRUDENCE (David B. Wexler & Bruce
J. Winick eds., 1992).
65. Judith Kaye, Lawyering for a New Age, 67 FORDHAM L. REV. 1 (1998). See also JUDGING IN A THERAPEUTIC KEY:
THERAPEUTIC JURISPRUDENCE AND THE COURTS (Bruce J. Winick & David B. Wexler eds., 2003).
66. For an early but still useful critique of the “therapeutic” model of lawyering, see Richard C. Boldt, Rehabilitative Punishment and the
Drug Treatment Court Movement, 76 WASH. U. L. QUART. 1206 (1998). For additional analysis, see Mae C. Quinn, Whose Team Am I On
Anyway? 26 N.Y.U. REV. L. & SOC. CHANGE 37 (2000–01).
67. Allison Redlich, Voluntary, but Knowing and Intelligent?: Comprehension in Mental Health Courts, 11 PSYCHOL. PUB. POL’Y & L.
605 (2005).
68. Id. See also Martin Reisig, The Difficult Role of the Defense Lawyer in a Post-Adjudication Drug Court: Accommodating Therapeutic
Jurisprudence and Due Process, 38 CRIM. L. BULL. 216 (2002) (posing similar questions regarding competency and voluntariness in
connection with drug courts).
69. Norman Poythress et al., Perceived Coercion and Procedural Justice in the Broward County Mental Health Court, 25 INT’L J.L. &
PSYCHIATRY 517 (2002).
70. Kathleen P. Stafford & Dustin B. Wygant, The Role of Competency to Stand Trial in Mental Health Courts, 23 BEHAV. SCI. & L. 245
(2005).
71. For a general discussion of such courts, see John Petrila, An Introduction to Special Jurisdiction Courts, 26 INT’L J.L. & PSYCHIATRY

937
3 (2003).
72. George E. Dix, The Death of the Commerce Court: A Study in Institutional Weakness, 8 AM. J. LEGAL HIST. 238 (1964).
73. Rochelle C. Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. REV. 1 (1989).

Chapter 3

1. For a comprehensive treatment of this issue, see Stuart Greenberg & Daniel Shuman, Irreconcilable Conflict between Therapeutic and
Forensic Roles, 28 PROF. PSYCHOL.: RES. & PRAC. 50 (1997). See also Larry Strasberger et al., On Wearing Two Hats: Role Conflict in
Serving as Both Psychotherapist and Expert Witness, 154 AM. J. PSYCHIATRY 448 (1997); Stuart Greenberg & Daniel Shuman, When
Worlds Collide: Therapeutic and Forensic Roles, 38 PROF. PSYCHOL.: RES. & PRAC. 129 (2007). But see also Terence Heltzel,
Compatibility of Therapeutic and Forensic Roles, 38 PROF. PSYCHOL.: RES. & PRAC. 122 (2007) (discussing arguments about the
appropriateness of mixing therapeutic and forensic roles).
2. Robert M. Wettstein, Fitness-for-Duty Evaluations, in CLINICAL GUIDE TO MENTAL DISABILITY EVALUATIONS 309, 331
(Liza Gold & Donna L. Vanderpool eds., 2013).
3. See, e.g., the American Psychological Association’s definitions of “client” and “examinee” in its Specialty Guidelines for Forensic Psychology,
68 AM. PSYCHOLOGIST 7, 19 (2013) (“Client refers to the attorney, law firm, court, agency, entity, party, or other person who has retained,
and who has a contractual relationship with, the forensic practitioner to provide services. . . . Examinee refers to a person who is the subject of a
forensic examination for the purpose of informing a decision maker or attorney about the psychological functioning of that examinee”).
4. Many authors have noted that therapist responsiveness, empathic understanding, and the credibility (as opposed to accuracy) of
therapeutic interpretations are among the general (vs. specific) sources of gain in therapy. See, e.g., Robert L. Hatcher, Interpersonal
Competencies: Responsiveness, Technique, and Training in Psychotherapy, 70 AM. PSYCHOLOGIST 747 (2015); FRANK-M.
STAEMMLER, EMPATHY IN PSYCHOTHERAPY: HOW THERAPISTS AND CLIENTS UNDERSTAND EACH OTHER
(2012); Leslie Greenberg et al., Empathy, 38 PSYCHOTHERAPY 380 (2001); JEROME FRANK, PERSUASION AND HEALING (3d
ed. 1991).
5. This does not mean that people seek mental health treatment eagerly. See, e.g., David L. Vogel et al., Avoidance of Counseling:
Psychological Factors That Inhibit Seeking Help, 85 J. COUNSELING & DEV. 410 (2007) (citing and describing concerns about social stigma,
treatment fears, fear of emotion, anticipated utility and risks, and self-disclosure).
6. Daniel Shuman, The Use of Empathy in Forensic Evaluations, 3 ETHICS & BEHAV. 289 (1993); Robert I. Simon & Robert M.
Wettstein, Toward the Development of Guidelines for the Conduct of Forensic Psychiatric Examinations, 25 J. AM. ACAD. PSYCHIATRY &
L. (1997).
7. “All tests share the need for a relatively quiet, distraction-free setting in administration. . . . When these conditions are not met in a single
case, then the test norms may not apply in evaluating that individual’s performance.” Kirk Heilbrun, The Role of Psychological Testing in Forensic
Assessment, 16 LAW & HUM. BEHAV. 257, 266 (1992).
8. The brief for the American Psychological Association in the landmark case of Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962),
argued that “[i]n the diagnosis of mental disease and mental defect, including the causal relationships between mental disease or defect and overt
behavior, a principal tool of the clinical psychologist is found in psychological tests. . . . ” Erasmus L. Hoch & John Darley, A Case at Law, 17
AM. PSYCHOLOGIST 623, 632 (1962).
9. “Clinical psychologists generally utilize a standardized, self-report personality inventory in conjunction with one or two other tests usually
of the projective type; however, any reliable psychological evaluation of a defendant should consist of an extensive battery of tests, both of the
self-report personality inventory nature and projective techniques.” Raymond M. Cameron, The Mental Health Expert: A Guide to Direct and
Cross-Examination, 2 CRIM. JUST. J. 299, 309 (1979).
10. See, e.g., David Brodzinsky, Use and Misuse of Psychological Testing in Child Custody Evaluations, 24 PROF. PSYCHOL.: RES. &
PRAC. 213 (1993).
11. See THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (2d ed.
2003); Theodore Blau, Psychological Tests in the Courtroom, 15 PROF. PSYCHOL.: RES. & PRAC. 176–86 (1984); Heilbrun, supra note 7.
12. For discussion of the admissibility of various tests, see Richard Rogers et al., Validation of the Millon Clinical Multiaxial Inventory for
Axis II Disorders: Does It Meet the Daubert Standard?, 23 LAW & HUM. BEHAV. 425 (1999); Robert J. Craig, Testimony Based on the
Millon Clinical Multiaxial Inventory: Review, Commentary, and Guidelines, 73 J. PERSONALITY ASSESSMENT 40 (1999); F.G. Dyer &
J.T. McCann, The Millon Clinical Inventories, Research Critical of Their Forensic Application, and Daubert Criteria, 24 LAW & HUM.
BEHAV. 487 (2000); H.N. Garb et al., The Validity of the Rorschach and the Minnesota Multiphasic Personality Inventory: Results from Meta-
Analyses, 9 PSYCHOL. SCI. (1998); J.T. McCann, Defending the Rorschach in Court: An Analysis of Admissibility Using Legal and Professional
Standards, 70 J. PERSONALITY ASSESSMENT 125 (1998); W.M. Grove & R.C. Barden, Protecting the Integrity of the Legal System: The

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Admissibility of Testimony from Mental Health Experts under Daubert/Kumho Analysis, 5 PSYCHOL. PUB. POL’Y & L. 224–242 (1999);
Barry Ritzler et al., Protecting the Integrity of Rorschach Expert Witnesses: A Reply to Grove and Barden (1999) Re: The Admissibility of Testimony
under Daubert/Kumho Analyses, 8 PSYCHOL. PUB. POL’Y & L. 201 (2002); William M. Grove et al., Failure of Rorschach-Comprehensive-
System-Based Testimony to Be Admissible under the Daubert–Joiner–Kumho Standard, 8 PSYCHOL. PUB. POL’Y & L. 216 (2002); Kenneth
S. Pope et al., THE MMPI. MMPI-2, AND MMPI-A IN COURT: A PRACTICAL GUIDE FOR EXPERT WITNESSES AND
ATTORNEYS (3d ed. 2006); FORENSIC APPLICATIONS OF THE MMPI-2 (Yossef S. Ben-Porath et al. eds., 1995); Stephen J. Lally,
Should Human Figure Drawings Be Admitted into Court?, 76 J. PERSONALITY ASSESSMENT 135 (2001).
13. Kirk Heilbrun, Richard Rogers & Randy Otto, Forensic Assessment: Current Status and Future Directions, in PSYCHOLOGY AND
LAW: REVIEWING THE DISCIPLINE 119 (J.R.P. Ogloff ed., 2002).
14. THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (1986).
15. See TWENTIETH MENTAL MEASUREMENTS YEARBOOK (Janet F. Carlson et al. eds., 2017). This edition does not review all
current tests, many of which are reviewed in previous editions. A website provides information on all editions (http://buros.org/mental-
measurements-yearbook).
16. See TESTS IN PRINT IX (Jennifer E. Schlueter Janet F. Carlson & Kurt F. Geisinger eds., 2016).
17. Liza H. Gold et al., AAPL Practice Guideline for the Forensic Evaluation of Psychiatric Disability, 36 J. AM. ACAD. PSYCHIATRY &
L. S3, S13, S25 (2008 supp.).
18. American Academy of Psychiatry and the Law (AAPL), AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants
Raising the Insanity Defense, 42 J. AM. ACAD. PSYCHIATRY & L. S3, S26 (2014 supp.).
19. As an extreme example of the contrary view, one of us (R.K.O.) reports meeting a psychologist who claimed that the Bender–Gestalt test
could be used to inform psychologists’ judgments about any and all psycholegal matters, and that most other measures were unnecessary.
20. Heilbrun, supra note 7, at 265.
21. Legal competence to proceed depends on whether the defendant has “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding . . . [and has a] rational as well as factual understanding of proceedings against him.” Dusky v.
United States, 362 U.S. 402 (1960). See § 6.02(b).
22. F. Barton Evans & Benjamin M. Schutz, The Rorschach in Child Custody and Parenting Plan Evaluations: A New Conceptualization, in
THE HANDBOOK OF FORENSIC RORSCHACH ASSESSMENT (Carl Gacono & F. Barton Evans eds., 2008); Stuart Greenberg et
al., The Utility of Psychological Testing in Personal Injury Evaluation, 10 ASSESSMENT 411 (2002).
23. Robert D. Miller & Edward J. Germain, The Retrospective Evaluation of Competency to Stand Trial, 11 INT’L J.L. & PSYCHIATRY
113 (1988).
24. Steven Bank & Norman Poythress, The Elements of Persuasion in Expert Testimony, 10 J. PSYCHIATRY & L. 173 (1982).
25. For instance, one justice characterized psychiatry as the “ultimate wizardry,” David Bazelon, Psychiatrists and the Adversary Process, 230
SCI. AM. 18–23 (1974). Similarly, Supreme Court Justice Lewis Powell referred to the use of research and statistical findings as “numerology,”
Ballew v. Georgia, 435 U.S. 223, 246 (1978) (Powell, J., concurring).
26. Richard E. Redding et al., What Judges and Lawyers Think about the Testimony of Mental Health Experts: A Survey of the Courts and Bar,
19 BEHAV. SCI. & L. 583 (2001) (“while courts and attorneys find traditional clinical testimony useful in criminal cases, they also favor
ultimate issue testimony, and view research data or statistically based information as less helpful”).
27. Cf. THE QUOTABLE LAWYER 111 (David Shrager & Elizabeth Prost eds., 1986) (attributing to Benjamin Disraeli the statement:
“There are three kinds of lies; lies, damned lies, and statistics”).
28. N.J. Scheitzer et al., Neuroimages as Evidence in a Mens Rea Defense: No Impact, 17 PSYCHOL. PUB. POL’Y & L. 357 (2001)
(“Despite suggestive findings from previous research, we found no evidence that neuroimagery affected jurors’ judgments (verdicts, sentence
recommendations, judgments of the defendant’s culpability) over and above verbal neuroscience-based testimony”).
29. Ames Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 22 AM. J. PSYCHIATRY 616 (1965).
30. Heilbrun et al., supra note 13.
31. Jay P. Singh et al., International Perspectives on the Practical Assessment of Violence Risk, 13 INT’L J. FORENSIC MENTAL
HEALTH 193 (2014).
32. “Normative data [are] data from a reference population that establishes a baseline distribution for a score or measurement, and against
which the score or measurement can be compared. Normative data [are] typically obtained from a large, randomly selected representative sample
from the wider population.” Examples of such tests include standardized IQ measures, such as the Wechsler scales of intelligence. Daniel
Campbell, Normative Data, in ENCYCLOPEDIA OF AUTISM SPECTRUM DISORDERS 2062 (2013).
33. See § 6.06(b).
34. RONALD ROESCH, PATRICIA ZAPF & DEREK EAVES, FITNESS INTERVIEW TEST—REVISED (2006).
35. See, e.g., Robey, supra note 29.

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 36. See, e.g., Jeffrey S. Janofsky et al., The Hopkins Competency Assessment Test: A Brief Method for Evaluating Patients’ Capacity to Give
Informed Consent, 43 HOSP. & COMMUNITY PSYCHIATRY 132 (1992). The instrument is organized, inappropriately, around patients’
comprehension of what doctors are supposed to do in the informed consent process, rather than around the information and abilities that
patients actually need to give informed consent.
37. See, e.g., BARRY BRICKLIN, BRICKLIN PERCEPTUAL SCALES: CHILD PERCEPTION OF PARENT SERIES (1990).
38. Randy Otto & Kirk Heilbrun, The Practice of Forensic Psychology: A Look to the Future in Light of the Past, 57 AM. PSYCHOLOGIST
5, 9–10 (2002).
39. See, e.g., ROESCH ET AL., supra note 34.
40. THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS (2d ed. 2003).
41. See Kirk Heilbrun, Response Style, Situation, Third Party Information and Competency to Stand Trial: Scientific Issues in Practice, 14
LAW & HUM. BEHAV. 193 (1990); Kirk Heilbrun et al., The Use of Third Party Information in Forensic Assessments: A Two-State
Comparison, 22 BULL. AM. ACAD. PSYCHIATRY & L. 399 (1994); Randy Otto, Christopher Slobogin & Stuart Greenberg, Legal and
Ethical Issues in Accessing Third Party Information, in 2 FORENSIC PSYCHOLOGY 195 (Alan Goldstein ed., 2006).
42. Douglas Mossman, “Hired Guns,” “Whores,” and “Prostitutes”: Case Law References to Clinicians of Ill Repute, 27 J. AM. ACAD.
PSYCHIATRY & L. 414 (1999) (“findings document the perception among legal professionals that many mental health experts are
unscrupulous”); John F. Edens et al., “Hired Guns,” “Charlatans,” and Their “Voodoo Psychobabble”: Case Law References to Various Forms of
Perceived Bias among Mental Health Expert Witnesses, 9 PSYCHOL. SERV. 259 (2012) (adding to Mossman’s findings and showing that
“diverse forms of bias that go beyond financial motives are alleged against mental health experts by various players in the legal system”).
43. See, e.g., Christopher Slobogin et al., The Feasibility of a Brief Evaluation of Mental State at the Time of the Offense, 8 LAW & HUM.
BEHAV. 305 (1984) (recommending at least a two-stage process for insanity evaluations).
44. For a fuller account, see Otto et al., supra note 41.
45. AM. BAR ASS’N (ABA), ODEL RULES OF PROFESSIONAL CONDUCT, Rule 4.2 (“In representing a client, a lawyer shall not
communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized by law to do so”).
46. Cf. ABA, supra note 45, Rule 4.3 (“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not
state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands
the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding”).
47. Although reports of amnesia may arise in a variety of cases, they may be particularly prevalent in pretrial evaluations of criminal
defendants. See generally Sven A. Christianson & Harald Merckelbach, Crime Related Amnesia as a Form of Deception, in THE
DETECTION OF DECEPTION IN FORENSIC CONTEXTS 195 (Par Anders Granhag & Leif A. Stromwall eds., 2004). See also
Michael D. Kopelman, The Assessment of Psychogenic Amnesia, in HANDBOOK OF MEMORY DISORDERS 427 (Alan D. Baddeley et al.
eds., 1995) (between 25 and 45% of convicted homicide offenders report amnesia for the offense); Natalie M. Pyszora et al., Amnesia for
Criminal Offences: A Study of Life Sentence Prisoners, 14 J. FORENSIC PSYCHIATRY & PSYCHOL. 475 (2003) (29% claimed amnesia for
their offenses); Ceri Evans et al., Amnesia for Violent Crime among Young Offenders, 20 J. FORENSIC PSYCHIATRY & PSYCHOL. 85
(2009) (20% of the offenders reported amnesia for some or all of the offense).
48. Andrea Stracciari et al., When the Past Is Lost: Focal Retrograde Amnesia. Focus on the “Functional” Form, 20 BEHAV. NEUROLOGY
113 (2008).
49. Alan D. Baddeley, The Psychology of Memory, in THE ESSENTIAL HANDBOOK OF MEMORY DISORDERS 1 (Alan D.
Baddeley et al. eds., 2d ed. 2004).
50. Frank Wood et al., The Episodic–Semantic Memory Distinction in Memory and Amnesia: Clinical and Experimental Observations, in
HUMAN MEMORY AND AMNESIA 167, 171 (Laird S. Cermak ed., 2014).
51. Charles L. Scott, Evaluating Amnesia for Criminal Behavior: A Guide to Remember, 35 PSYCHIATRIC CLINICS N. AM. 797, 802–
04 (2012) (citing studies).
52. Id. at 803–04.
53. Michael D. Kopelman, Disorders of Memory, 125 BRAIN 2152, 2171 (2002).
54. Miriam A. Mintzer & Roland R. Griffiths, Alcohol and Triazolam: Differential Effects on Memory, Psychomotor Performance and
Subjective Ratings of Effects, 13 BEHAV. PHARMACOLOGY 653 (2002).
55. Scott, supra note 51, at 808 (citing sources).
56. Aaron M. White et al., Prevalence and Correlates of Alcohol-Induced Blackouts among College Students: Results of an E-Mail Survey, 51 J.
AM. COLL. HEALTH 117 (2002).
57. Pamela J. Taylor & Michael D. Kopelman, Amnesia for Criminal Offences, 14 PSYCHOL. MED. 581 (1984).
58. Scott, supra note 51, at 808–09 (citing sources).

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 59. Hans J. Markowitsch & Angelica Staniloiu, The Impairment of Recollection in Functional Amnesic States, 49 CORTEX 1494 (2013).
60. Harald Merckelbach & Sven Å. Christianson, Amnesia for Homicide as a Form of Malingering, in OFFENDERS’ MEMORIES OF
VIOLENT CRIMES 165, 173 (Sven Å. Christianson ed., 2007).
61. Markowitsch & Staniloiu, supra note 59, at 1504–05.
62. Scott, supra note 51, at 805–13.
63. Gary R. Elkins et al., Advancing Research and Practice: The Revised APA Division 30 Definition of Hypnosis, 57 AM. J. CLINICAL
HYPNOSIS 378, 382 (2015).
64. Faysal M. Hasan, Hypnotherapy Is More Effective than Nicotine Replacement Therapy for Smoking Cessation: Results of a Randomized
Controlled Trial, 22 COMPLEMENTARY THERAPIES MED. 1 (2014).
65. Sharon B. Spiegel, Current Issues in the Treatment of Specific Phobia: Recommendations for Innovative Applications of Hypnosis, 56 AM.
J. CLINICAL HYPNOSIS 389 (2014); Pamela Kaiser, Childhood Anxiety and Psychophysiological Reactivity: Hypnosis to Build Discrimination
and Self-Regulation Skills, 56 AM. J. CLINICAL HYPNOSIS 343 (2014).
66. Guy H. Montgomery et al., A Meta-Analysis of Hypnotically Induced Analgesia: How Effective Is Hypnosis?, 48 INT’L J. CLINICAL &
EXPERIMENTAL HYPNOSIS 138 (2000).
67. Gabriele Moser et al., Long-Term Success of GUT-Directed Group Hypnosis for Patients With Refractory Irritable Bowel Syndrome: A
Randomized Controlled Trial, 108 AM. J. GASTROENTEROLOGY 602 (2013).
68. Ria Willemsen et al., Hypnotherapeutic Management of Alopecia Areata, 55 J. AM. ACAD. DERMATOLOGY 233 (2006).
69. J. Stephen Horsley, Narco-analysis, 227 LANCET 55 (1936); J. STEPHEN HORSLEY, NARCO-ANALYSIS (1943).
70. August Piper, Jr., “Truth Serum” and “Recovered Memories” of Sexual Abuse: A Review of the Evidence, 21 J. PSYCHIATRY & L. 447,
448 (1993).
71. Sunday T.C. Ilechukwu & Thomas Henry, Amytal Interview Using Intravenous Lorazepam in a Patient with Dissociative Fugue, 28
GEN. HOSP. PSYCHIATRY 544 (2006); Yuna Seo et al., Effectiveness of Lorazepam-Assisted Interviews in an Adolescent with Dissociative
Amnesia: A Case Report, 8 NEURAL REGENERATION RES. 186 (2013).
72. Scott, supra note 51, at 814–15. See also Robert A. Karlin, Illusory Safeguards: Legitimizing Distortion in Recall with Guidelines for
Forensic Hypnosis—Two Case Reports, 45 INT’L J. CLINICAL & EXPERIMENTAL HYPNOSIS 18 (1997) (observing that “[h]ypnosis
used to facilitate [recall] alters expectations about what can be remembered, makes memory more vulnerable to post-event information, and
increases confidence without a corresponding increase in accuracy”). But see Gajendra K. Goswami, Forensic Law, 50 ANN. SURV. INDIAN
L. 649, 650 (2014) (describing recent interest in, and criticism of, narcoanalysis in India).
73. In this context, one often-cited reference is Wiley Mittenberg et al., Base Rates of Malingering and Symptom Exaggeration, 24 J.
CLINICAL & EXPERIMENTAL NEUROPSYCHOL. 1094 (2002) (reporting survey results with malingering rates in 29% of personal
injury cases, 30% of disability cases, 19% of criminal cases, and 39% mild head injury cases). See also Douglas Mossman et al., Estimating the
Accuracy of Neurocognitive Effort Measures in the Absence of a “Gold Standard,” 24 PSYCHOL. ASSESSMENT 815, 819 (2012) (estimating a
32.5% malingering rate in outpatient examinees, most of whom were undergoing forensic neuropsychological examinations).
74. Richard Rogers, An Introduction to Response Styles, in CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION
(Richard Rogers ed., 4th ed. 2017) [hereinafter MALINGERING AND DECEPTION 4th ed.].
75. Id.; Richard Rogers & Matthew Bender, Evaluation of Malingering and Deception, in FORENSIC PSYCHOLOGY 382 (Alan
Goldstein ed., 2003).
76. Mark Ruiz et al., Trying to Beat the System: Misuse of the Internet to Assist in Avoiding Detection of Psychological Symptom Dissimulation,
33 PROF. PSYCHOL.: RES. & PRAC. 294 (2002).
77. Kenneth R. Morel, Test Security in Medicolegal Cases: Proposed Guidelines for Attorneys Utilizing Neuropsychology Practice, 24
ARCHIVES CLINICAL NEUROPSYCHOL. 635, 636 (2009) (citing studies).
78. For a comprehensive review of the early literature on the detection of malingering, see Jeffrey L. Geller et al., Feigned Insanity in
Nineteenth-Century America: Tactics, Trials, and Truth, 8 BEHAV. SCI. & L. 3 (1990).
79. See, e.g., James Knoll & Phillip J. Resnick, The Detection of Malingered Post-Traumatic Stress Disorder, 29 PSYCHIATRIC CLINICS
N. AM. 629 (2006); Phillip J. Resnick & James Knoll, Malingered Psychosis, in CLINICAL ASSESSMENT OF MALINGERING AND
DECEPTION 51 (Richard Rogers ed., 3d ed. 2008) [hereinafter MALINGERING AND DECEPTION 3d ed.].
80. Richard Rogers, Structured Interviews and Dissimulation, in MALINGERING AND DECEPTION 3d ed., supra note 79, at 251.
81. Daniel Schacter, Amnesia and Crime: How Much Do We Really Know?, 41 AM. PSYCHOLOGIST 286, 290–91 (1986).
82. See Rebecca L. Jackson & Michael J. Vitacco, Structured and Unstructured Interviews, in ZISKIN’S COPING WITH PSYCHIATRIC
AND PSYCHOLOGICAL TESTIMONY (David Faust ed., 6th ed. 2012) (especially 302–311).
83. IRA K. PACKER, EVALUATION OF CRIMINAL RESPONSIBILITY 120 (2009).
84. RICHARD ROGERS ET AL., SIRS: STRUCTURED INTERVIEW OF REPORTED SYMPTOMS: PROFESSIONAL

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MANUAL (1992); RICHARD ROGERS ET AL., SIRS-2: STRUCTURED INTERVIEW OF REPORTED SYMPTOMS–2:
PROFESSIONAL MANUAL (2d ed. 2010).
85. One scale (DS) is designed to detect a defensive posture. The remaining 12 scales primarily target overendorsement or exaggeration of
symptoms.
86. “In simulation studies, investigators ask ‘normal’ (non-ill) subjects to respond to the instrument’s items as they would if they really had
mental disorders and compare these simulated responses to the item responses of persons who (the investigators believe) are honestly reporting
symptoms of their mental illnesses.” Mossman et al., supra note 73, at 816. In known-group (or “criterion-group”) studies, investigators compare
“how two clinical populations—a group that the investigators believe are reporting symptoms honestly, and a group that the investigators believe
are malingering—perform.” Id.
87. Richard Rogers et al., Standardized Assessment of Malingering: Validation of the Structured Interview of Reported Symptoms, 3
PSYCHOL. ASSESSMENT: J. CONSULTING & CLINICAL PSYCHOL. 89 (1991).
88. Richard Rogers et al., The SIRS as a Measure of Malingering: A Validation Study with a Correctional Sample, 8 BEHAV. SCI. & L. 85
(1990).
89. Richard Rogers et al., Detection of Malingering on the Structured Interview of Reported Symptoms (SIRS): A Study of Coached and
Uncoached Simulators, 3 PSYCHOL. ASSESSMENT: J. CONSULTING & CLINICAL PSYCHOL. 673 (1991).
90. Richard Rogers et al., Faking Specific Disorders: A Study of the Structured Interview of Reported Symptoms (SIRS), 48 J. CLINICAL
PSYCHOL. 643 (1992).
91. A test’s “sensitivity” or “true-positive rate” is the probability that the test will identify an individual who possesses the trait or exhibits the
behavior that the test is designed to detect. Eugene Somoza & Douglas Mossman, Introduction to Neuropsychiatric Decision Making: Binary
Diagnostic Tests, 2 J. NEUROPSYCHIATRY & CLINICAL NEUROSCI. 297, 298 (1990). See also § 20.02.
92. A test’s “specificity” or “true-negative rate” is the probability that the test will correctly identify an individual who does not possess the
trait or behavior that the test is designed to detect. Somoza & Mossman, supra note 91 at 298. See also § 20.02.
93. Debbie Green & Barry Rosenfeld, Evaluating the Gold Standard: A Review and Meta-Analysis of the Structured Interview of Reported
Symptoms, 23 PSYCHOL. ASSESSMENT 95 (2011).
94. Steven Rubenzer, Review of the Structured Inventory [sic] of Reported Symptoms–2 (SIRS-2), 2 OPEN ACCESS J. FORENSIC
PSYCHOL. 273 (2010) (“manual contains some erroneous and questionable statistics and arguments”); Debbie Green et al., New and
Improved?: A Comparison of the Original and Revised Versions of the Structured Interview of Reported Symptoms, 20 ASSESSMENT 210
(2013) (“changes in scoring resulted in markedly lower sensitivity rates of the SIRS-2 . . . compared with the SIRS”).
95. See Mossman et al., supra note 73, at 816 (noting that the simulation design used by Rogers et al. may not replicate the types of
responses “real-world malingerers” produce, while in the known-group design they use, “what is ‘known’ is not known for certain”). Ideally
instruments would be developed and validated through using both types of designs and clinical controls, as opposed to a control group
composed of “normal” (i.e., nonseverely mentally ill) individuals. Recently Mossman and colleagues have used a statistical approach called
“latent class modeling” and mixed-group validation, which let them “use data from real-life subjects evaluated in a forensic context to generate
inferences about the accuracy of certain types of effort measures.” Id.; see also Douglas Mossman et al., A Bayesian Approach to Mixed Group
Validation of Performance Validity Tests, 27 PSYCHOL. ASSESSMENT 763 (2015) (showing how previously published data can be used to
quantify test accuracy and effects of covariates; unlike known-group and simulation studies, such “findings neither rely on possibly flawed
assumptions about subjects’ intentions nor assume that experimental simulators can duplicate the behavior of real-world examinees”).
96. See, e.g., HOLLY A. MILLER, MILLER–FORENSIC ASSESSMENT OF SYMPTOMS TEST (M-FAST): PROFESSIONAL
MANUAL (2001); Holly A. Miller, Examining the Use of the M-FAST with Criminal Defendants Incompetent to Stand Trial, 48 INT’L J.
OFFENDER THERAPY & COMP. CRIMINOLOGY 268 (2004).
97. See, e.g., Kenneth W. Sewell, Dissimulation on Projective Measures, in MALINGERING AND DECEPTION 3d ed., supra note 79, at
207; Ronald J. Ganellen, Rorschach Assessment of Malingering and Defensive Response Sets, in HANDBOOK OF FORENSIC
RORSCHACH ASSESSMENT 89 (Carl B. Gacono & F. Barton Evans eds., 2008); David J. Schretlen, The Use of Psychological Tests to
Detect Malingered Symptoms of Mental Disorder, 8 CLINICAL PSYCHOL. REV. 451 (1988); and Jennifer Guriel & William Fremouw,
Assessing Malingered Posttraumatic Stress Disorder: A Critical Review, 23 CLINICAL PSYCHOL. REV. 881 (2003).
98. See, e.g., Howard Garb et al., Roots of the Rorschach Controversy, 25 CLINICAL PSYCHOL. REV. 97 (2003); James Wood et al.,
WHAT’S WRONG WITH THE RORSCHACH? (2003); Ronald Ganellen, Weighing Evidence for the Rorschach’s Validity: A Response to
Wood et al., 77 J. PERSONALITY ASSESSMENT 1 (2001); Howard Garb et al., Effective Use of Projective Techniques in Clinical Practice:
Let the Data Help with Selection and Interpretation, 33 PROF. PSYCHOL: RES. & PRAC. 454 (2003); Carl B. Gacono et al., The Rorschach
in Forensic Practice, 2 J. FORENSIC PSYCHOL. PRAC. 33 (2002).
99. See, e.g., JOHN R. GRAHAM, MMPI-2: ASSESSING PERSONALITY AND PSYCHOPATHOLOGY (2011); ROGER L.
GREENE, THE MMPI-2/MMPI-2-RF. AN INTERPRETIVE MANUAL (2011); YOSSEF S. BEN-PORATH, INTERPRETING

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THE MMPI-2-RF (2012).
100. Roger Greene, Assessment of Malingering and Defensiveness by Multiscale Personality Inventories, in MALINGERING AND
DECEPTION 3d ed., supra note 79, at 148.
101. LES MOREY, PROFESSIONAL MANUAL FOR THE PERSONALITY ASSESSMENT INVENTORY (2d ed. 2007).
102. John Edens et al., Forensic and Correctional Applications of the Personality Assessment Inventory, 19 BEHAV. SCI. & L. 519 (2001).
103. See, e.g., SETH GROSSMAN & BLAISIE AMENDOLACE, ESSENTIALS OF MCMI-IV ASSESSMENT (2016); Richard
Charter & Michael Lopez, Millon Clinical Mulitaxial Inventory (MCMI-III): The Inability of the Validity Conditions to Detect Random
Responders, 58 CLINICAL PSYCHOL. REV. 615 (2002); M. Schoenberg et al., The Ability of the MCMI-III to Detect Malingering, 15
PSYCHOL. ASSESSMENT 198 (2003).
104. David J. Schretlen, The Use of Psychological Tests to Identify Malingered Symptoms of Mental Disorder, 8 CLINICAL PSYCHOL.
REV. 451 (1988).
105. “Scatter” refers to the finding that fakers fail more of the easy items, but pass more of the harder ones, than do persons who are truly
mentally deficient. “[W]idely used intelligence tests, such as the WAIS-R, are poorly adapted to ‘scatter’ analysis because they contain too few
easy items and the items are arranged in an obvious hierarchical order.” Schretlen, supra note 104, at 456.
106. See, e.g., Richard Rogers et al., Feigning Schizophrenia on the MMPI-2: Detection of Coached Simulators, 60 J. PERSONALITY
ASSESSMENT 215, 256 (1993).
107. Jerry Sweet, Malingering: Differential Diagnosis, in FORENSIC NEUROPSYCHOLOGY: FUNDAMENTALS AND PRACTICE
255, 263–77 (Jerry Sweet ed., 1999).
108. Randy Otto, The Ten Most Important Things to Know about Assessment of Response Style (paper presented at the annual meeting of the
American Neuropsychiatric Society, La Jolla, CA, Feb. 2006).
109. Id.
110. John Edens et al., Factors Differentiating Successful versus Unsuccessful Malingerers, 77 J. PERSONALITY ASSESSMENT 333
(2001).
111. Examples of the few free-standing measures designed to identify persons who are guarded or defensive in responding include the
Paulhus Deception Scales and the Crowne–Marlowe Social Desirability Scale.
112. Greene, supra note 100, at 169.
113. John Edens et al., Forensic and Correctional Applications of the Personality Assessment Inventory, 19 BEHAV. SCI. & L. 519 (2001).
114. See sources cited supra note 103.
115. David Schretlen & Hal Arkowitz, A Psychological Test to Detect Prison Inmates Who Fake Insanity or Mental Retardation, 8 BEHAV.
SCI. & L. 75 (1992); David Schretlen et al., Cross-Validation of a Psychological Test Battery to Detect Faked Insanity, 4 PSYCHOL.
ASSESSMENT 77 (1992).
116. Graham M. Silk-Eglita et al., Rates of False-Positive Classification Resulting From the Analysis of Additional Embedded Performance
Validity Measures, 22 APPLIED NEUROPSYCHOL. ADULT 335 (2015); Barry Rosenfeld et al., What to Do with Contradictory Data?:
Approaches to the Integration of Multiple Malingering Measures, 9 INT’L J. FORENSIC MENTAL HEALTH 63 (2010); Randy Borum et
al., Improving Clinical Judgment and Decision Making in Forensic Evaluation, 21 J. PSYCHIATRY & L. 35 (1993).
117. See, e.g., Glenn J. Larrabee, Aggregation across Multiple Indicators Improves the Detection of Malingering, 22 CLINICAL
NEUROPSYCHOL. 666 (2008); Moran Bar-Hen et al., Empirically Derived Algorithm for Performance Validity Assessment Embedded in a
Widely Used Neuropsychological Battery: Validation among TBI Patients in Litigation, 37 J. CLINICAL & EXPERIMENTAL
NEUROPSYCHOL. 1086 (2015)
118. For a detailed analysis of the case law on the admissibility of polygraph tests and hypnosis and the relevant science, see DAVID
FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE (2016–17), chs. 18 (hypnosis) and 38 (polygraph). On narcoanalysis, see
MCCORMICK ON EVIDENCE 879 (6th ed. 2006) (noting that narcoanalysis is rarely admissible on its own, but asserting that “[w]hen an
expert uses narcoanalysis or hypnosis in his or her examination of a person to determine whether the individual is insane, incompetent or
mentally incapacitated, the case for admissibility is much stronger”). For reasons discussed in the text [both below and in § 3.05], we disagree
with the latter statement, to the extent that the results of the narcoanalysis form a significant basis for the clinical opinion. See also State v.
Moore, 902 A.2d 121 (N.J. 2006), reversing State v. Hurd, 432 A.2d 86 (1981), which had developed six criteria that had to be met before
hypnotically induced results could be introduced (e.g., avoiding leading questions, recording all contacts with the examiner). In Moore, the New
Jersey Supreme Court held that even with these protections, it was no longer “convinced that it is possible to know whether post-hypnotic
testimony can ever be as reliable as testimony based on ordinary recall, even recognizing the myriad of problems associated with ordinary recall.”
Id. at 1213.
119. See, e.g., Commonwealth v. Chappell, 40 N.E.3d 1031 (Mass. 2015); Commonwealth v. Talbot, 830 N.E.2d 177 (Mass. 2005); Dep’t
of Youth Serv. v. A Juvenile, 398 Mass. 516, 499 N.E.2d 812 (1986).

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 120. See, e.g., State v. Franklin, 318 S.C. 47, 456 S.E.2d 357 (1995) (psychiatrist who never examined defendant may base opinion on reports
by persons who did); United States v. Lawson, 653 F.2d 299, 301–02 (7th Cir. 1981) (psychiatrist can describe staff reports, defendant’s
interviews with other physicians, reports from the FBI and from the United States Attorney’s Office); United States v. Bilson, 648 F.2d 1238,
1239 (9th Cir. 1981) (psychiatrist can base sanity opinion on psychological tests administered by unlicensed psychologist). But see Schmidt v.
State, 816 N.E.2d 925, 939 (Ind. 2004) (courts are reluctant to find reasonable reliance when third party is not specially trained).
121. See, e.g., Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974).
122. FED. R. EVID. 801(d)(2).
123. FED. R. EVID. 803(b)(3).
124. FED. R. EVID. 803(b)(1).
125. See, e.g., United States v. Gonzalez, 559 F.2d 1271 (5th Cir. 1977). But see United States v. Guinan, 836 F.2d 350 (7th Cir. 1988).
126. FED. R. EVID. 803(6) (Records of Regularly Conducted Activity). See also FED. R. EVID. 803(8) (Public Records and Reports). Cf.
Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417 (1955).
127. Note, Hearsay Bases of Psychiatric Opinion Testimony: A Critique of Federal Rule of Evidence 703, 51 S. CAL. L. REV. 129 (1977);
Ronald L. Carlson, Collision Course in Expert Testimony: Limitations on Affirmative Introduction of Underlying Data, 36 FLA. L. REV. 234
(1984). Several courts have adopted this reasoning, at least when the hearsay alleges a prior criminal act that did not lead to conviction. See, e.g.,
State v. Floyd Y., 2 N.E.3d 204 (N.Y. 2013) (holding that experts’ reliance, in a civil commitment proceeding, on statements about unconvicted
sexual acts described in a parole report was impermissible); Lawrence v. Commonwealth, 689 S.E.2d 748, 750–751 (Va. 2010); In re Care and
Treatment of Colt, 211 P.3d 797, 804 (Kan. 2009); Commonwealth v. Markvart, 771 N.E.2d 778, 783–784 (Mass. 2002). But see In re
Manigo, 697 S.E.2d 629, 634 (S.C. 2010); In re Detention of Stenzel, 827 N.W.2d 690, 710 (Iowa 2013); In re Interest of A. M., Jr., 797
N.W.2d 233, 261–262 (Neb. 2011); In re Civil Commitment of Williams, 735 N.W.2d 727, 731–732 (Ct. App. Minn. 2007).
128. 541 U.S. 36 (2004).
129. Id. at 51.
130. See, e.g., People v. Goldstein, 843 N.E.2d 727 (N.Y. 2005).
131. See State v. Floyd Y., 2 N.E.3d 204, 213 (N.Y. 2013) (summarizing case law in several states).
132. For instance, many statements made to a social worker doing a family history may help form the basis for an opinion, but may not be
“significant.” Or a psychologist whose tests form part of the basis of an opinion may have left the state for another job. In both instances,
requiring the out-of-court declarant to testify may not be considered necessary.

Chapter 4

1. Schmerber v. California, 384 U.S. 757, 761 (1966). See generally CHARLES WHITEBREAD & CHRISTOPHER SLOBOGIN,
CRIMINAL PROCEDURE: AN ANALYSIS OF CONSTITUTIONAL CASES AND CONCEPTS ch. 15 (6th ed. 2015). For a full
explication of the issues discussed in this and the following section, see Christopher Slobogin, Estelle v. Smith: The Constitutional Contours of
the Forensic Evaluation, 31 EMORY L.J. 71 (1982).
2. 218 U.S. 245 (1910).
3. Schmerber v. California, 384 U.S. 757, 765 (1966) (blood test); Gilbert v. California, 388 U.S. 263, 266–67 (1967) (handwriting sample);
United States v. Wade, 388 U.S. 218, 222–23 (1967) (lineup); Holt v. United States, 218 U.S. 245 (1910) (clothing).
4. Thornton v. Corcoran, 407 F.2d 695, 700 (D.C. Cir. 1969).
5. 451 U.S. 454 (1981).
6. Id. at 464 n.8.
7. Hoffman v. United States, 341 U.S. 479 (1951).
8. This ban applies in federal jurisdictions under FED. R. CRIM. P. 12.2(c)(4). A number of states also impose the ban or a limited version
of it. See, e.g., FLA. R. CRIM. P. 3.211(e); MICH. CRIM. L. & P. § 6:72 (2016); . KY. PRAC. CRIM. PRAC. & P. § 16:13 (5th ed. 2015).
For a compilation of older case law and statutes, see Validity and Construction of Statutes Providing for Psychiatric Evaluation of Accused to
Determine Mental Condition, 32 A.L.R. 2d 434, § 5 (containing cases as early as the 1930s, but updated through the 1990s) [hereinafter
A.L.R.].
9. 451 U.S. at 465.
10. Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand Trial, 35 J. AM.
ACAD. PSYCHIATRY & L. S3, S21, S22 (2007 supp. 4).
11. Even if it can be assumed that the prosecutor acts in good faith, the prosecutor “cannot be certain that somewhere in the depths of his
investigative apparatus, often including hundreds of employees, there was not some prohibited use of the compelled testimony.” Kastigar v.
United States, 406 U.S. 441, 469 (1971) (Marshall, J., dissenting). Discovering such abuse and proving it are extremely difficult, “for all proof

944
lies in the hands of the government.” James Rief, The Grand Jury Witness and Compulsory Testimony Legislation, 10 AM. CRIM. L. REV. 829,
856–59 (1972).
12. VA. CODE ANN. § 19.2-169.1(D).
13. 483 U.S. 402 (1987).
14. 532 U.S. 782, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001).
15. See, e.g., WASH. REV. CODE § 10.77.020(4) (“In a competency evaluation conducted under this chapter, the defendant may refuse to
answer any question if he or she believes his or her answers may tend to incriminate him or her or form links leading to evidence of an
incriminating nature”).
16. See, e.g., FLA. R. CRIM. P. 3.211(e) (providing that results of a competence report may be used only on that issue, unless the defendant
uses the report or portions thereof “for any other purpose, in which case disclosure and use of the report, or any portion thereof, shall be
governed by applicable rules of evidence and rules of criminal procedure”). Under this type of rule, if the defendant supports an insanity defense
with an expert other than the one who conducted the competence examination, or with the same expert but based on a different evaluation, the
competence results could not be used by the prosecution. Compare People v. Pokovich, 39 Cal. 4th 1240, 141 P.3d 267, 270–74 (2006)
(competence results may not be used to impeach defendant at trial) with United States v. Vasquez-Pulido, 155 F.3d 1213, 1217–18 (10th Cir.
1998) (allowing prosecution use of competence results to impeach defense’s mens rea expert).
17. See FED. R. CRIM. P. 12(c)(1)(B); FLA. R. CRIM. P. 3.216(d).
18. Id. See Grattan v. Virginia, 685 S.E.2d 634, 645 (Va. 2009); Webster v. State, 2003 WL 23019195 (2003); Bright v. State, 455 S.E.2d
37, 48 (Ga. 1995); United States v. Albright, 388 F.2d 719 (4th Cir. 1968); Alexander v. United States, 380 F.2d 33, 39 (8th Cir. 1967). But
see Johnson v. People, 172 Colo. 72, 470 P.2d 37 (1970).
19. 451 U.S. at 465.
20. For a case discussing the noncooperation issue and many of the cases, see United States v. Johnson, 383 F. Supp. 1145 (N.D. Iowa 2005).
Preclusion of expert testimony for noncooperation can also occur in capital cases. See, e.g., FLA. R. CRIM. P. 3.202.
21. See, e.g., State v. Huson, 73 Wash. 2d 660, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096 (1968). Some states bar the defense
altogether. See, e.g., Michigan v. Hayes, 364 N.W.2d 635 (Mich. 1984); State v. Richards, 495 N.W.2d 1987 (Minn. 1992). For criticism of
these latter two approaches, see Slobogin, supra note 1, at 103–06.
22. Lee v. County Court, 267 N.E.2d 452, 461–62, 318 N.Y.S.2d 705, 719 (1971).
23. MODEL PENAL CODE § 4.09 (1962). See also ALA. R. CRIM. P. 11.2; CT. R. SUP. CT. § 40-19; DEL. R. SUP. CT. 12.2; ILL.
COMP. STAT. ch. 725, § 5/104–14; KAN. STAT. ANN. § 22-2910; KY. R. CRIM. P. 8.07; MASS. GEN. LAWS. 233 §23B. R.I. GEN.
LAWS § 40.1-5.3-3; WYO. STAT. ANN. § 7-11-304.
24. FED. R. CRIM. P. 12.2(c)(4).
25. See, e.g., Lovette v. State, 636 So. 2d 1304 (Fla. 1994) (citing FLA. R. CRIM. P. 3.216(a)).
26. 134 S. Ct. 596 (2013).
27. See also State v. Herrera, 895 P.2d 359, 370 (Utah 1995) (holding that raising lack of mens rea as a defense also waives the Fifth
Amendment).
28. See, e.g., Neuman v. State, 773 S.E.2d 716, 721 (Ga. 2015); People v. Gurule, 751 P.3d 224, 250 (2002); Smith v. McCormick, 914 F.2d
1153, 1159 (9th Cir. 1990); United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975); Houston v. State, 602 P.2d 784 (Ala. 1979); Pratt v. State,
387 A.2d 779, 783 (Md. 1978). Some courts have tried to make impractical distinctions between postnotice disclosure of statements about the
crime and postnotice disclosure of statements made in response to “questions about mental health.” Traywicks v. State, 927 P.2d 1062, 1065
(Okla. Crim. 1996).
29. See, e.g., Pawlyk v. Wood, 237 F.3d 1054 (9th Cir. 2001). But see Justice Marshall’s dissent to the denial of certiorari in Granviel v.
Texas, 495 U.S. 963 (1990), arguing that the results of an evaluation mandated by Ake v. Oklahoma, which is meant to provide the defendant
with expert assistance, should never be revealed to the prosecution, even after notice of an intent to raise a defense. For further discussion of this
point, see § 4.03(b)(1).
30. VA. CODE ANN. § 19.2-169.5(E).
31. VA. CODE ANN. §§ 19.2-169.5(E) & 19.2-168.1.
32. See, e.g., AM. BAR ASS’N (ABA), CRIMINAL JUSTICE DISCOVERY STANDARDS, std. 11-3.2 (1989).
33. See State v. Shaw, 471 P.2d 715 (Ariz. 1970); State ex rel. Boyd v. Green, 355 So. 2d 789 (Fla. 1978); Sanchez v. State, 562 P.2d 270
(Wyo. 1977).
34. See generally David W Louisell & Geoffrey C. Hazard, Insanity as a Defense: The Bifurcated Trial, 49 CAL. L. REV. 805 (1961); Note,
The Psychiatric Expert in the Criminal Trial: Are Bifurcation and the Rules Concerning Opinion Testimony on Ultimate Issue Constitutionally
Compatible?, 70 MARQ. L. REV. 493 (1987).
35. Of the two dozen states that once required bifurcation, at most only six states (California, Colorado, Maryland, New Mexico, New York,
and Wisconsin) retain the procedure. SAMUEL BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW, Table 12.6, col. 10

945
(1985).
36. Indiana, Maine, Massachusetts, Minnesota, New Jersey, North Dakota, Pennsylvania, and West Virginia permit the procedure on this
basis. Id., col. 11. See generally 1 A.L.R. 4th 884 (1980–2006).
37. See, e.g., Gibson v. Zahradnick, 581 F.2d 75 (4th Cir. 1978).
38. ABA. CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-6.7 (2d ed. 2016) [hereinafter ABA STANDARDS]
39. Hollis v. Smith, 571 F.2d 685, 691 (2d Cir. 1978); Annotation, 9 A.L.R. 3d 990, 999–1001 (1966).
40. 451 U.S. at 462–63.
41. ABA STANDARDS, supra note 38, pt. IX.
42. Id. at 469 n.13.
43. 526 U.S. 314 (1999).
44. Id. at 326.
45. Id. at 330.
46. 536 U.S. 24 (2002).
47. 387 U.S. 1 (1967).
48. See, e.g., 349 F. Supp. 1078 (1972).
49. See, e.g., United States v. Sahhar, 917 F.2d 1197 (9th Cir. 1990); State for Interest and Protection of Ellenwood, 567 S.W.2d 251 (Civ.
App. 1978).
50. 478 U.S. 364 (1986).
51. See also French v. Blackburn, 428 F. Supp. 1351 (M.D.N.C. 1977), aff’d, 443 U.S. 901 (1979), which summarily affirmed a lower court’s
holding that the Fifth Amendment does not apply to civil commitment.
52. 451 U.S. at 468.
53. 484 U.S. 436 (1966).
54. Miller and his colleagues found that few patients subject to commitment proceedings refuse to talk as a result of warnings. They
speculate, based on other studies of the admission process, that this is because “most patients understand and recall little of what they are told on
admission,” that “many patients tend to perceive clinicians as helpers no matter what the situation,” and that “warnings may actually seduce
some patients into feeling secure enough to reveal more information than they otherwise would have done.” Robert Miller et al., The Right to
Remain Silent during Psychiatric Examination in Civil and Criminal Cases—A National Survey and an Analysis, 9 INT’L J.L. &
PSYCHIATRY 77, 91–92 (1986).
55. Coleman v. Alabama, 399 U.S. 1 (1970); Wade v. United States, 388 U.S. 218 (1967); Hamilton v. Alabama, 368 U.S. 52 (1961).
56. See Maxwell C. Smith, Quiet Eyes: The Need for Defense Counsel’s Presence at Psychiatric Evaluations, 16 CAP. DEF. J. 421, 425 n.27
(2004) (describing cases).
57. Id. at 424–25 n.26.
58. 451 U.S. at 470 & n.14.
59. 388 U.S. 218 (1967).
60. Id. at 230–31.
61. Id. at 231.
62. For an example of a case in which the attorney’s presence could have been useful, see United States v. Byers, No. 78–1451 (D.C. Cir.
Dec. 24, 1980). A second decision in Byers was issued at 740 F.2d 1104 (D.C. Cir. 1984), after Estelle v. Smith was decided and reargument
occurred. The court, per Judge Antonin Scalia, rejected the right-to-counsel argument, and even rejected the suggestion that government be
required to record the interview. Id. at 1114–15.
63. Thornton v. Corcoran, 407 F.2d 695 (D.C. Cir. 1969).
64. See ABA STANDARDS, supra note 38, std. 7-3.5(c). Outside the competence context, the Standards leave the decision up to the
evaluator, although they call for recording of all court- and prosecution-initiated evaluations.
65. Compare Zabkowicz v. West Bend Co. 585 F. Supp. 635, 636 (D. Wis. 1984) (attorney presence permitted because psychiatric
examination “could easily be transformed into a de facto deposition”) with Warrick v. Erode, 46 F.R.D. 427, 428 (D. Del. 1969) (“The very
presence of a lawyer for the examined party injects a partisan character into what would otherwise be a wholly objective inquiry”). See also
Stakley v. Allstate Ins. Co., 547 So. 2d 275 (Fla. 2d Dist. 1989) (attorney’s presence is permitted if the client requests it, “absent any valid
reason to prohibit the presence of a third party”); CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2236 (2002).
66. See, e.g., American Academy of Clinical Neuropsychology, Policy Statement on the Presence of Third Party Observers in
Neuropsychological Assessment, 15 CLINICAL NEUROPSYCHOL. 433 (2001); National Academy of Neuropsychology, Presence of Third
Party Observers during Neuropsychological Testing, 15 ARCHIVES CLINICAL NEUROPSYCHOL. 379 (2000).

946
 67. Angela D. Eastvold et al., Does a Third Party Observer Affect Neuropsychological Test Performance?: It Depends, 26 CLINICAL
NEUROPSYCHOL. 520 (2012) (meta-analysis of findings from 62 studies published between 1924 and 2009 suggests that a third party
worsens performance, particularly on test of attention, learning/memory, and delayed recall). See also Randy K. Otto & Daniel Krauss,
Contemplating the Presence of Third Party Observers and Facilitators in Psychological Evaluations, 16 ASSESSMENT 362 (2009), for an
extended discussion of these issues.
68. See Pamela Casey & Ingo Keilitz, An Evaluation of Mental Health Expert Assistance Provided to Indigent Criminal Defendants:
Organization, Administration and Fiscal Management, 34 N.Y.L. SCH. L. REV. 19 (1988) (app.).
69. See, e.g., Slobogin, supra note 1, at 132–34; Travis H. Lewin, Indigence Informal and Formal Procedures to Provide Partisan Psychiatric
Assistance to the Poor, 52 IOWA L. REV. 458, 487 (1966).
70. GARY MELTON ET AL., COMMUNITY MENTAL HEALTH CENTERS AND THE COURTS: AN EVALUATION OF
COMMUNITY-BASED FORENSIC SERVICES 23–42 (1985) (estimating approximately 40% savings if community-based resources are
used).
71. 470 U.S. 68 (1985).
72. See generally 85 A.L.R. 4th 19 (1991). See also Granviel v. Lynaugh, 881 F.2d 185 (5th Cir. 1989) (holding that Ake requires no more
than an “independent” court-appointed psychiatrist whose report is to be made available to both the prosecution and defense). But see Hammett
v. State, 578 S.W.2d 699, 720–21 (Tex. Crim. App. 1979) (Odum, Roberts, & Phillips, JJ., concurring).
73. See Granviel v. Texas, 495 U.S 963 (1990) (denying certiorari in a case where the Fifth Circuit held that Ake was not violated when the
defendant’s Ake report was sent, after notice, to the prosecution as well as the defense).
74. These states include Alabama, Alaska, Arkansas, Connecticut, Illinois, Kansas, Iowa, Michigan, South Dakota, North Dakota, Ohio,
Oregon, Pennsylvania, Rhode Island, and Washington. See BRAKEL ET AL., supra note 35, Table 12.6, col. 7.
75. For a description of such a program in Virginia, see MELTON ET AL., supra note 70, 137.
76. McWilliams v. Dunn, 137 S.Ct. 1790 (2017) (emphasizing that Ake entitles defendants to expert assistance not only via an
“examination,” but also to expert assistance in evaluating, preparing and presenting a defense); Binion v. Commonwealth, 891 S.W.2d 383, 386
(Ky. 1995); Jones v. Ryan, 583 F.3d 626, 638 (9th Cir. 2009). For additional discussion, see Paul C. Giannelli, Ake v. Oklahoma: The Right to
Expert Assistance in a Post-Daubert, Post-DNA World, 89 CORNELL L. REV. 1305, 1400–02 (2004).
77. Mossman et al., supra note 10, at S26.
78. See, e.g., Am. Psychol, Ass’n, Ethical Principles of Psychologists and Code of Conduct, 57 AM. PSYCHOLOGIST 1060 (2002) (2010 and
2016 amendments available at http://www.apa.org/ethics/code.index.aspx [hereinafter Ethical Principles], and Am. Psychol. Ass’n, Specialty
Guidelines for Forensic Psychology, 68 AM. PSYCHOLOGIST 7, 11 (2013) [hereinafter Forensic Psychology Guidelines].
79. Cara H. Drinan, The Revitalization of Ake: A Capital Defendant’s Right to Expert Assistance, 60 OKLA. L. REV. 382, 290–93 (2007).
80. See, e.g., In re Gannon, 123 N.J. Super. 104, 301 A.2d 493, 494 (1973) (civil commitment). See generally Giannelli, supra note 76, 1369–
73 (application of Ake to noncapital sentencing and civil proceedings).
81. 425 F. Supp. 1038 (E.D.N.Y. 1976), aff’d, 556 F.2d 556 (2d Cir. 1977).
82. Gray v. District Ct., 884 P.2d 286 (Colo. 1994). See generally Stephen Saltzburg, Privileges and Professionals: Lawyers and Psychiatrists,
66 VA. L. REV. 597 (1980).
83. 519 F.2d 1036 (3d Cir. 1975).
84. Id. at 1054. See also People v. Knuckles, 165 Ill. 2d 125, 209 Ill. Dec. 1, 650 N.E.2d 974 (1995); Simpson v. Braider, 104 F.R.D. 512
(D.D.C. 1985); Houston v. State, 602 P.2d 784 (Ala. 1979); Pratt v. State, 39 Md. App. 442, 387 A.2d 779 (1978), aff’d, 284 Md. 516, 398
A.2d 421 (1979).
85. Wynn v. Earin, 125 P.3d 236 (Wash. 2005) (counselor testified beyond the scope of the questions asked, without demanding a subpoena
and without the patient’s consent, in violation of state confidentiality statute); Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962); Berry v.
Moench, 8 Utah 2d 191, 331 P.2d 814 (1958). Cf. Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973); Hammond v. Setna Ins., Ohio, 243 F. Supp.
793 (1965).
86. Although the United States Supreme Court has barred pretrial discovery of case records under limited circumstances in Seattle Times v.
Rhinehart, 467 U.S. 20 (1984), the First Amendment and state public access laws push in the opposite direction in most cases. See generally
Katherine Pownell, The First Amendment and Pretrial Discovery Hearings: When Should the Press Have Access?, 36 UCLA L. REV. 609 (1989);
Charles N. Davis, Access to Discovery Records in Florida Criminal Trials: Public Justice and Public Records, 6 FLA. J.L. & PUB. POL’Y 297
(1995). The typical exceptions to this public access rule are juvenile records and presentence reports. See Lynn E. Sudbeck, Placing Court
Records Online: Balancing Judicial Accountability with Public Trust and Confidence, 51 S.D. L. REV. 81, 92 n.34 (2006) (enumerating typical
exceptions to public records laws).
87. Chandler v. Florida, 449 U.S. 560 (1981); Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980).
88. Block v. Sacramento Clinical Labs, 131 Cal. App. 3d 306, 182 Cal. Rptr. 438 (1982); Commonwealth ex rel. Platt v. Platt, 266 Pa.

947
Super. Ct. 276, 404 A.2d 410 (1979) (civil commitment hearing); McKay v. Commonwealth, 52 Pa. Comm. 24, 415 A.2d 910 (1980)
(competence to operate a motor vehicle). See generally Margaret Z. Johns, A Black Robe is Not a Big Tent: The Improper Expansion of Absolute
Judicial Immunity to Non-Judges in Civil Rights Cases, 59 S.M.U. L. REV. 265, 277–83 (2006) (discussing case law granting immunity from
suits alleging deprivation of civil rights).
89. See, e.g., Ethical Principles, supra note 78, std. 4.04 (“Psychologists include in written and oral reports and consultations, only information
germane to the purpose for which the communication is made”).
90. For a description of statutes, see Adrienne Jennings Locke, Salt in the Wounds: Why Attorneys Should Not Be Mandated Reporters of
Child Abuse, 36 N.M. L. REV. 125, 126–29 (2006); Matthew F. Soulier et al., Status of the Psychiatric Duty to Protect, Circa 2006, 38 J. AM.
ACAD. PSYCHIATRY & L. 457 (2010). See also Mental Health Professionals’ Duty to Warn, available at
http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx#1 (table listing statutes, current at this writing as of Sept.
28, 2015).
91. Note, however, that several states have included attorneys (and therefore their agents) as required abuse reporters. See Katharyn I.
Christian, Putting Legal Doctrines to the Test: The Inclusion of Attorneys as Mandatory Reporters of Child Abuse, 32 J. LEGAL PROF. 215,
218–19 nn.34–35 (2008) (listing states).
92. The principal exception to the nondisclosure rule dictated by the attorney–client privilege is when the attorney’s services are sought to
enable the client to commit a future crime. See MCCORMICK ON EVIDENCE § 95 (6th ed. 2006). But the ethical rules also require or
recommend that the attorney provide information necessary to prevent a crime that can cause death or seriously bodily harm, even if the
attorney’s services are not sought for that purpose. See ABA, MODEL RULES OF PROFESSIONAL CONDUCT, rule 1.6.
93. See Elijah W. v. Superior Ct., 216 Cal. App. 4th 1140 (2013) (holding that the attorney–client privilege trumps both mandated reporting
laws and Tarasoff duties, which are discussed below). But see the ABA Criminal Justice Mental Health Standards, which provide:

If in the course of any evaluation, the evaluator concludes that the defendant presents an imminent risk of serious danger to him or herself or
to another person or otherwise needs emergency intervention, the evaluator should take other appropriate precautionary measures in
accordance with applicable professional standards and statutory reporting requirements.

ABA STANDARDS, supra note 38, std. 7-3.2(b)(ii).

94. Indeed, this is the general rule with therapists as well. THOMAS G. GUTHEIL & PAUL S. APPELBAUM, CLINICAL
HANDBOOK OF PSYCHIATRY AND THE LAW 12 (3d ed. 2000).
95. Tarasoff v. Regents, Univ. of Cal., 551 P.2d 334 (Cal. 1976).
96. See Claudia Kachigian & Alan R. Felthous, Court Responses to Tarasoff Statutes, 32 J. AM. ACAD. PSYCHIATRY & L. 263, 266–68
(2004) (table listing statutes and cases).
97. CAL. CIV. CODE § 43.92. An even more limited variation comes from Arizona, where liability attaches only if “the patient has
communicated to the mental health provider an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable
victim or victims, and the patient has the apparent intent and ability to carry out such threat.” ARIZ. REV. STAT. ANN. § 36-517.02. A few
state courts have rejected Tarasoff altogether. See, e.g., Boynton v. Burglass, 590 So. 2d 446 (Fla. Dist. Ct. App. 1991). For a review of state
laws on the topic, see Soulier et al., supra note 90.
One study found that as of 1989, approximately 50 professionals were sued each year for breach of the duty to protect, roughly two-thirds of
whom settled before trial, and one-ninth of whom ended up losing at trial. James C. Beck, Current Status of the Duty to Protect, in
CONFIDENTIALITY VERSUS THE DUTY TO PROTECT: FORESEEABLE HARM IN THE PRACTICE OF PSYCHIATRY 9
(James C. Beck ed., 1990). Interestingly, of all the published decisions regarding Tarasoff as of 1989, only four imposed liability on the
defendant. Id.
98. See, e.g., Ryans v. Lowell, 197 N.J. Super. 266, 484 A.2d, 1253 (A.D. 1984); State v. Cole, 295 N.W.2d 29 (Iowa 1980); Chiasera v.
Employers Mut. Liab. Ins., 101 Misc. 2d 877, 422 N.Y.S.2d 341 (Sup. Ct. 1979). Hawaii has granted immunity from Tarasoff-type claims to
mental health professionals who are conducting evaluations by court order. Seibel v. Kemble, 631 P.2d 173 (Haw. 1981).
99. Thompson v. County of Alameda, 27 Cal. 3d 741, 614 P.2d 728, 167 Cal. Rptr. 70 (1980). These statutes often respond to cases in
which a state court has found potential liability for situations where violence “should” have been foreseen—a determination subject to the heavy
influence of hindsight bias. For example, the Ohio legislature enacted statutory provisions “to respectfully disagree with and supersede the
statutory construction holdings of the Ohio Supreme Court relative to section 5122.34 of the Revised Code as set forth in Estates of Morgan v.
Fairfield Family Counseling Ctr. (1997), 77 Ohio St. 3d 284.” OHIO AM. H. B. NO. 71, § 3.
100. We use Arizona again as an example. The relevant statute states that the duty “is discharged by all of the following: 1. Communicating
when possible the threat to all identifiable victims. 2. Notifying a law enforcement agency in the vicinity where the patient or any potential
victim resides. 3. Taking reasonable steps to initiate proceedings for voluntary or involuntary hospitalization, if appropriate. 4. Taking any other
precautions that a reasonable and prudent mental health provider would take under the circumstances.” ARIZ. REV. STAT. ANN. § 36-

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517.02(8). The Maryland statute is similar, but adds that the duty can be discharged by making “reasonable and timely efforts to . . . formulate a
diagnostic impression and establish and undertake a documented treatment plan calculated to eliminate the possibility that the patient will carry
out the threat.” MD. CODE ANN. § 5-315(c)(2)(ii).
101. Note, Where the Public Peril Begins: A Survey of Psycho-Therapists to Determine the Effects of Tarasoff, 31 STAN. L. REV. 165 (1978).
102. See Douglas Mossman, Critique of Pure Risk Assessment or, Kant Meets Tarasoff, 75 U. CIN. L. REV. 523, 542 (2006) (summarizing
studies).
103. For ethical rules, see Am. Med. Ass’n, Principles of Medical Ethics of the American Medical Association, § 9, available at
http://directory.csms.org/ama-ethics/; Am. Psychiatric Ass’n, Ethical Principles of Psychiatrists, 141 AM. J. PSYCHIATRY 487 (1984);
Forensic Psychology Guidelines, supra note 78 (see in particular std. 3.05). See also Brian Ginsburg, Tarasoff at Thirty: Victim’s Knowledge
Shrinks the Psychotherapist’s Duty to Warn and Protect, 21 J. CONTEMP. HEALTH L. & POL’Y 2 (2004) (arguing that Tarasoff “might
hold more potential for good than was once believed”), and Mossman, supra note 102, at 587–601 (providing a Kantian argument that
reporting or taking actions to thwart a patient’s violent intentions vindicates the therapist’s paramount obligation to respect the patient’s
humanity).
104. Virtually every state recognizes a psychologist–patient privilege. Those that specifically recognize a social worker–patient privilege as
well include Alabama, California, District of Columbia, Florida, Idaho, Illinois, Iowa, Kansas, Montana, Nevada, New York, Ohio,
Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, and West Virginia. In Jaffee v. Redmond, 518 U.S. 1 (1996), the
United States Supreme Court adopted the psychotherapist–patient privilege for the federal courts and included social workers in the definition
of “psychotherapist.” For a description of statutes, see Rebecca S. Auerbach, New York’s Need for a Psychotherapist–Patient Privilege
Encompassing Psychiatrists, Psychologists, and Social Workers, 69 ALB. L. REV. 889, 900–905 (2006).
105. See Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 470 N.Y.S.2d 122, 470 N.E.2d 363 (1983) (protective order may be
obtained by treating hospital or doctor if disclosure “may be seriously detrimental to the interest of the patient, to uninvolved third parties, or to
an important program of the custodian of the record”).
106. For states that apply the balancing approach in the civil context, see CAL. EVID. CODE § 1010-28(1); CONN. GEN. STAT. ANN.
§ S2-146(c); ILL. COMP. STAT. ANN. ch. 91h, § 810(a)(1); ME. REV. STAT. ANN. tit. 32, § 7005; MASS. ANN. LAWS ch. 233, §
20B(c); TENN. CODE ANN. § 24-1-207; VA. CODE ANN. § 8.01-400.2. Judge Hufstedler has argued that disclosures may not be
compelled in a personal injury case over a claim of privilege beyond “the fact of treatment, the time and length of treatment, the cost of
treatment, and the ultimate diagnosis unless the party seeking disclosure establishes in the trial court a compelling need for its production.”
Caesar v. Moutanos, 542 F.2d 1064, 1075 (9th Cir. 1976) (Hufstedler, J., concurring and dissenting). But see Jaffee v. Redmond, discussed infra
in text accompanying notes 107–08.
For nuances in the application of the privilege in the criminal context, see Auerbach, supra note 104. For a general treatment of the privilege,
see MCCORMICK ON EVIDENCE, supra note 92, ch. 11.
107. 518 U.S. 1 (1996).
108. Id. at 17.
109. CAL. EVID. CODE § 1024; Guerrier v. State, 811 So.2d 852 (Fl. Ct. App. 2002); United States v. Glass, 133 F.3d 1356 (10th Cir.
1998).
110. See United States v. Hayes, 227 F.3d 578 (6th Cir. 2000); State v. Miller, 709 P.2d 225, 236–37 (Or. 1985). See generally Gregory B.
Leong et al., The Psychotherapist as Witness for the Prosecution: The Criminalization of Tarasoff, 149 AM. J. PSYCHIATRY 1011 (1992);
Robert Lloyd Goldstein & Joann Maria Calderone, The Tarasoff Raid: A New Extension of the Duty to Protect, 20 BULL. AM. ACAD.
PSYCHIATRY & L. 335 (1992).
111. For a general treatment of the informed consent doctrine, see Alan Meisel et al., Toward a Model of the Legal Doctrine of Informed
Consent, 134 AM. J. PSYCHIATRY 285 (1977).
112. Although failure to inform the patient of relevant information is the gravamen of an informed consent claim, absence of injury will
usually lead to a summary judgment in favor of the defendant; nominal damages are rarely granted in such cases (and are rarely sued for to begin
with).
113. For an accessible, succinct discussion of malpractice and negligent misdiagnosis actions, see PAUL S. APPELBAUM & THOMAS G.
GUTHEIL, CLINICAL HANDBOOK OF PSYCHIATRY & THE LAW 118–24 (4th ed. 2007). See also RALPH SLOVENKO,
PSYCHIATRY IN LAW/LAW IN PSYCHIATRY 459–60 (2d ed. 2009).
114. See generally Joseph King, Reconciling the Exercise of Judgment and the Objective Standard of Care in Medical Malpractice, 52 OKLA. L.
REV. 49 (1999).
115. These states include California, Massachusetts, Michigan, Missouri, Nevada, New York, Ohio, Oregon, and Pennsylvania. Federal
jurisdictions also routinely grant immunity. See Hughes v. Long, 242 F.3d 121, 127 (3d Cir. 2001) (court-appointed custody evaluators advising
court absolutely immune because intimately involved in judicial process); Rippy v. Hattaway, 270 F.3d 416, 422–23 (6th Cir. 2001) (social

949
workers absolutely immune for initiating judicial proceedings against those suspected of child abuse or neglect because such actions intimately
related to judicial phase of prosecutorial proceedings); Morstad v. Dep’t of Corr. & Rehab., 147 F.3d 741, 744 (8th Cir. 1998) (court-appointed
psychologist evaluating sexual offender for probation revocation absolutely immune for testimony and reports submitted to court). See generally
R.F. Chase, Annotation, Liability for False Imprisonment Predicated upon Institution of, or Conduct in Connection with, Insanity Proceedings, 30
A.L.R. 3d 523, § 5 (1995); Johns, supra note 88, at 277–83.
116. 948 P.2d 828 (Wash. 1997).
117. Id. at 829.
118. Pollock v. Panjabi, 781 A.2d 518 (Conn. 2000).
119. Murphy v. Mathews, 841 S.W.2d 671 (Miss. 1992). See also James v. Brown, 637 S.W.2d 914 (Tex. 1982).
120. Bruce v. Byrne-Stevens & Associates, 776 P.2d 666 (Wash. 1989). For a general discussion of the witness immunity issues, see Leslie
Masterson, Witness Immunity or Malpractice Liability for Professionals Hired as Experts?, 17 REV. LITIG. 393 (1998).
121. 42 U.S.C. § 1320d-1320d-9. Note that “compliance dates” range from October 2002 to April 2005, depending upon the issue.
122. The Health Information Technology for Economic and Clinical Health (HITECH) Act was enacted as part of the so-called “stimulus
package” that Congress enacted to address the “great recession” of 2008. HITECH enacted a series of rules for the protection of the security of
health information stored electronically, as well as providing billions of dollars of investment in electronic health records. Unless the forensic
practitioner is part of a group or entity covered by HITECH, its provisions will have little relevance to forensic practice. A discussion of
HITECH and its implementing regulations can be found in Tracey L. Murray et al., Privacy, Confidentiality, HIPAA and HITECH:
Implications for the Health Care Practitioner, 7 J. NURSE PRACTITIONERS 747 (2011); Margaret M. Richards, Electronic Medical Records:
Confidentiality Issues in the Time of HIPAA, 40 PROF. PSYCHOL.: RES. & PRAC. 550 (2009).
123. 42 U.S.C. § 1320d-1(a); see also 45 C.F.R. § 160.103. Forensic programs that receive payment only from courts or the government are
not covered by HIPAA. If a “hybrid” entity has some components covered by HIPAA, however, it may require compliance from either all its
components or only those components it designates as “health care components,” which could include forensic programs. 45 C.F.R. §
164.105(b).
124. 45 C.F.R. §§ 164.520–528.
125. 45 C.F.R. § 160.103.
126. 45 C.F.R. § 164.512(a)(1).
127. 45 C.F.R. § 164.512(d)(1)(ii).
128. 45 C.F.R. § 164.512(f).
129. 45 C.F.R. §§ 164.520(a)(3), 164.524(a)(2)(ii), 164.528.
130. For a review of the arguments for and against, and of case law that suggests at least by extension that forensic practice is not
presumptively exempt from HIPAA, see Bruce G. Borkosky et al., Are Forensic Evaluations “Health Care” and Are They Regulated by HIPAA?,
7 PSYCHOL. INJ. & L. 1 (2014). Borkosky and colleagues conclude: “It appears that the evidence strongly suggests that, for those forensic
mental health practitioners who are covered entities, HIPAA does apply to forensic evaluations.”
131. 42 U.S.C. § 1320d-1(a). More information about “covered entities” can be found at a website maintained by the Department of Health
and Human Services on health information privacy: https://www.hhs.gov/hipaa/for-professionals/covered-entities.
132. For a discussion of what constitutes a “transaction” under HIPAA, see http://www.aapsonline.org/confiden/hipaacovered.htm (accessed
on Aug. 10, 2016).
133. For a discussion of “hybrid entities” and applicable rules, see https://www.hhs.gov/hipaa/for-professionals/faq/315/when-does-a-
covered-entity-have-discretion-to-determine-covered-functions/index.html.
134. Compare, e.g., Bruce G. Borkosky & James M. Pellet, Can FMHPS Refuse to Release Records to Evaluees Because the Records are
“Information Complied in Reasonable Anticipation of Litigation”?, 31 AM. J. FORENSIC PSYCHOL. 21 (2014) with RANDY K. OTTO,
KIRK HEILBRUN & ALAN M. GOLDSTEIN, ETHICAL PRACTICE IN FORENSIC PSYCHOLOGY (2017).
135. 45 C.F.R. §§ 164.524(a)(1)(i)–(ii) & 164.501. For a discussion of the circumstances under which individuals can access their health
information, and the exclusions to this right, see https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access (accessed on Aug. 10,
2016).
136. Compare David Michael Corey, Principles of Fitness for Duty Evaluations for Police Psychologists, in HANDBOOK OF POLICE
PSYCHOLOGY 274 (J. Kitaeff ed., 2011) (arguing the position in the text) with LIZA H. GOLD & DANIEL W. SHUMAN,
EVALUATING MENTAL DISABILITY IN THE WORKPLACE: MODEL, PROCESS AND ANALYSIS 38 (2009) (arguing that all
such information is protected by the work product doctrine).
137. American Academy of Psychiatry and the Law (AAPL), Ethics Guidelines for the Practice of Forensic Psychiatry [hereinafter AAPL
Ethics Guidelines]. These guidelines were last revised in May 2005 and are available at http://www.aapl.org/ethics.htm.
138. Forensic Psychology Guidelines, supra note 78, at 7.

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 139. These guidelines are available at http://nofsw.org/wp-content/uploads/2014/03/NOSFW-Code-of-Ethics-Changes-2-16-12.pdf.
140. AAPL Ethics Guidelines, supra note 137, § V.
141. Forensic Psychology Guidelines, supra note 78, at 9.
142. Randy K. Otto & Kirk Heilbrun, The Practice of Forensic Psychology: A Look toward the Future in Light of the Past, 57 AM.
PSYCHOLOGIST 5 (2002).
143. Stanley E. Prentice, A History of Subspecialization in Forensic Psychiatry, 23 BULL. AM. ACAD. PSYCHIATRY & L. 195 (1995);
Rusty Reeves & Richard Rosner, Education and Training in Forensic Psychiatry, in PRINCIPLES AND PRACTICE OF FORENSIC
PSYCHIATRY 52 (Richard Rosner ed., 2d ed. 2003); Richard Rosner & Robert L. Sadoff, The Modern Era of Forensic Psychiatry, in THE
EVOLUTION OF FORENSIC PSYCHIATRY 33, 39 (Robert L. Sadoff ed., 2015). The AAPL lists programs that offer forensic psychiatry
fellowships at http://www.aapl.org/fellow.php.
144. Daniel A. Krauss & Bruce D. Sales, Training in Forensic Psychology, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 111
(Irving Weiner & Randy Otto eds., 4th ed. 2014); Donald N. Bersoff et al., Training in Law and Psychology: Models from the Villanova
Conference, 52 AM. PSYCHOLOGIST 1301 (1997); Donald N. Bersoff, Preparing for Two Cultures: Education and Training in Law and
Psychology, in PSYCHOLOGY AND LAW: THE STATE OF THE DISCIPLINE (Ronald Roesch et al. eds., 1999). The American
Psychology–Law Society has a list of programs that offer training in forensic psychology, available at http://www.apadivisions.org/division-
41/education/index.aspx.
145. Specialty forensic training is offered through each of the major forensic mental health professional organizations: the AAPL (see
http://www.aapl.org), the American Academy of Forensic Psychology (see http://aafpforensic.org/workshops/), and the NOFSW (see
http://www.nofsw.org).
146. Eligibility now requires postresidency fellowship training in forensic psychiatry. See http://www.abpn.com/become-certified/taking-a-
subspecialty-exam/forensic-psychiatry.
147. Certification in the specialty of forensic psychology is offered through the American Board of Professional Psychology, in conjunction
with the American Board of Forensic Psychology (see http://www.abpp.org/i4a/pages/index.cfm?pageid=3356).
148. Although national board certification requires a medical or doctoral degree and many hours of supervision, such certification does not
automatically translate into state certification or acceptance as an expert witness, as state law can vary significantly from that tested by these
boards.
149. Certification in forensic social work is a function of the NOFSW; see supra note 145.
150. In some cases, of course, self-study—including reading relevant literature and statutes, and informal discussions with mental health and
legal colleagues—may be sufficient to enable clinicians to generalize into areas not drastically dissimilar from their established areas of
competence.
151. Thomas Grisso, The Economic and Scientific Future of Forensic Psychological Assessment, 42 AM. PSYCHOLOGIST 831, 836 (1987).
152. See, e.g., §§ 8.04(b) & (e).
153. Linda Appenfeldt, Court-Appointed Competency to Proceed to Trial Evaluations, FLA. PSYCHOLOGIST, Nov. 1991, at 20.
154. Robert I. Simon & Daniel W. Shuman, Conducting Forensic Examinations on the Road: Are You Practicing Your Profession without a
License?, 27 J. AM. ACAD. PSYCHIATRY & L. 75 (1999); William H. Reid, Licensure Requirements for Out-of-State Forensic Examinations,
J. AM. ACAD. PSYCHIATRY & L. 433, 434 (2000) (several states’ medical boards reported that “a [medical] license would generally be
required” to conduct a forensic psychiatric examination); Christine L. Yantz et al., Regulations Governing the Out-of-State Practice of Psychology:
Implications for Forensic Neuropsychologists, 13 APPLIED NEUROPSYCHOL. 19 (2006).
155. Jill A. Tucillo et al., Licensure Requirements for Interjurisdictional Forensic Evaluations, 33 PROF. PSYCHOL.: RES. & PRAC. 377,
379 (2002). See also Eric A Drogin, Interstate Forensic Mental Health Practice: A Jurisprudent Science Perspective, 36 J. PSYCHIATRY & L.
345 (2008).
156. Tucillo et al., supra note 155.
157. Simon & Shuman, supra note 154, at 75. In most states violation of local temporary practice laws is considered a misdemeanor,
although in a minority of states it is a felony offense. Tucillo et al., supra note 155, at 380.
158. For psychologists, a useful resource for information on local practice standards is the Association of State and Provincial Psychology
Boards (http://www.asppb.net).
159. Forensic Psychology Guidelines, supra note 78, at 12. Although the AAPL Ethics Guidelines, supra note 137, do not mention this
explicitly, forensic psychiatrists agree. See, e.g., Diane H. Schetky, Introduction to Forensic Evaluations, in PRINCIPLES AND PRACTICE
OF CHILD AND ADOLESCENT FORENSIC MENTAL HEALTH 29, 31 (Elissa P. Benedek et al. eds., 2010) (“The expert also needs
to be open regarding any skeletons in his or her closet that might preclude his or her involvement in a case”); Robert L. Sadoff, The Practice of
Forensic Psychiatry: Perils, Problems, and Pitfalls, 26 J. AM. ACAD. PSYCHIATRY & L. 305, 309–10 (1998) (discussing examples of
conflicts of interests); and Park E. Dietz, The Quest for Excellence in Forensic Psychiatry, 24 BULL. AM. ACAD. PSYCHIATRY & L. 153,

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157 (1996) (providing additional examples of “skeletons in [the expert’s] closet”).
160. B. Myers & M.P. Arena, Trial Consultation: A New Direction in Applied Psychology, 32 PROF. PSYCHOL.: RES. & PRAC. 386
(2001); Robert I. Simon, The Psychologically Vulnerable Witness: An Emerging Forensic Consulting Role, 29 J. AM. ACAD. PSYCHIATRY &
L. 29 (2001).
161. Allen K. Hess, Serving as an Expert Witness, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 532 (Allen K. Hess & Irving
B. Weiner eds., 2d ed. 1999). See also Simon, supra note 160.
162. For a broader discussion of these and related issues, see Chapter 18.
163. “Results from MRI, PET, and SPECT scans are attractive to attorneys, as they seem to show concrete evidence of brain abnormalities.
These can be quite persuasive to a jury.” Deborah Giorgi-Guarnieri et al., AAPL Practice Guideline for Forensic Psychiatric Evaluation of
Defendants Raising the Insanity Defense, 30 J. AM. ACAD. PSYCHIATRY & L. S3, S23 (2002 supp.).
164. “Absent a court order, psychiatrists should not perform forensic evaluations for the prosecution or the government on persons who have
not consulted with legal counsel when such persons are: known to be charged with criminal acts; under investigation for criminal or quasi-
criminal conduct; . . . Examinations related to rendering medical care or treatment, such as evaluations for civil commitment or risk assessments
for management or discharge planning, are not precluded by these restrictions.” AAPL Ethics Guidelines, supra note 137, § III. For an opposing
view regarding prearraignment forensic psychiatric evaluations, see Steven A. Ornish et al., Prearraignment Forensic Evaluations: Toward a New
Policy, 24 BULL. AM. ACAD. PSYCHIATRY & L. 453 (1996).
165. Some authorities recommend that the expert arrange to be paid for evaluation time prior to testifying in court, thus avoiding the
situation of testifying (presumably on behalf of) a party that owes him or her a large amount of money. See Stuart A. Greenberg & Francine B.
Kulick, The Role of the Mental Health Professional in Employment Litigation, in MENTAL AND EMOTIONAL INJURIES IN
EMPLOYMENT LITIGATION 141 (James J. MacDonald Jr. & Francine B. Kulick eds., 1994); Sadoff, supra note 159, at 308. This
recommendation appears to flow more from considerations of trial tactics and appearances, however, than from ethical mandates.
166. AAPL Ethics Guidelines, supra note 137, § IV.
167. Forensic Psychology Guidelines, supra note 78, at 12 (guideline 5.02).
168. See, e.g., Dupree v. Malpractice Research Inc., 179 Mich. App. 254, 445 N.W.2d 498 (1989); Polo v. Gotchel, 225 N.J. Super. 429, 542
A.2d 947 (1987).
169. See Ethical Principles, supra note 78, and Forensic Psychology Guidelines, supra note 78, at 12. Analogously, lawyers are urged (but not
required) to donate 50 hours of their time to pro bono service. ABA, MODEL ROLE OF PROFESSIONAL CONDUCT, rule 6.1.
One problem not answered by the clinical ethical codes is the appropriate response when clinicians who have agreed to be involved in a case
on a pro bono basis are offered what amounts to full payment by parties who in fact prevailed. These situations, admittedly infrequent, are
troublesome. On the one hand, the payment may be seen as a serendipitous and fair reward for someone who, in good faith, committed
professional services to the public good with no expectation of personal benefit. Alternatively, accepting such payment leaves a clinician open to
allegations of de facto contingency contracting under the guise of voluntary professional service.
170. Dietz, supra note 159, at 160.
171. See Forensic Psychology Guidelines, supra note 78, at 9 (guideline 1.03).
172. Clinicians’ objectivity might also be open to question if the results of their forensic evaluations turn out favorably for “their patients.”
173. AAPL Ethics Guidelines, supra note 137, § II.
174. “Psychologists are committed to increasing scientific and professional knowledge . . . and to the use of such knowledge to improve the
condition of individuals, organizations and society. . . . Psychologists . . . are aware of their professional and scientific responsibilities to society
and to the specific communities in which they work. Psychologists uphold professional standards of conduct, clarify their professional roles and
obligations . . . and seek to manage conflicts of interest that could lead to exploitation or harm.” AM. PSYCHOL. ASS’N, ETHICAL
PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT 3 (June 1, 2010), available at
http://www.apa.org/ethics/code/index.aspx.
175. Am.Med.Ass’n, supra note 103, at 1
176. See TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 116–17, 166–68 (5th ed.
2001).
177. Douglas Mossman, Forensic Psychiatry and Forensic Psychology: Ethics of Psychiatry, in 2 ENCYCLOPEDIA OF FORENSIC AND
LEGAL MEDICINE 591, 596 (2016).
178. Daniel Shuman, The Use of Empathy in Forensic Evaluations, 3 ETHICS & BEHAV. 289 (1993). Shuman would prohibit only
“reflective” empathy (which he defines as a “quality of felt awareness of the experiences of another person”), while allowing “receptive” empathy
(defined as “awareness of a person’s perceptions and experiences”). Thus he would prohibit the statement “I’ll bet that made you angry,” but
would permit “I am not sure that I understood your response; were you angry?” We assume, for purposes of the following discussion, that
examinees actually would experience and respond to these two statements differently.

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 179. When an emergency situation forces the clinician to assume a therapeutic role and posture toward an individual, ethical guidelines
related to problems with dual-role relationships suggest that the examiner avoid providing further forensic services (e.g., forensic evaluation
anticipating expert testimony) to that person, unless this is reasonably unavoidable. Forensic Psychology Guidelines, supra note 78, at 12.
180. AAPL Ethics Guidelines, supra note 137, § II.
181. For an excellent discussion of this issue, see Thomas G. Gutheil & James T. Hilliard, The Treating Psychiatrist Thrust into the Role of
Expert Witness, 52 PSYCHIATRIC SERV. 1526 (2001).
182. See Forensic Psychology Guidelines, supra note 78, at 11; AAPL Ethics Guidelines, supra note 137, § IV.
183. “[I]n a small town or rural area there may be only one practitioner available with the requisite credentials to perform a forensic
evaluation.” Larry H. Strassburger et al., On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness, 154 AM. J.
PSYCHIATRY 448, 455 (1997). “[T]he dual role of treatment provider and forensic expert cannot always be avoided in small towns and rural
areas. . . . The psychiatrist may go to court expecting to testify as a fact witness but may be converted by the judge into an expert witness.”
Robert I. Simon & Izben C. Williams, Maintaining Treatment Boundaries in Small Communities and Rural Areas, 50 PSYCHIATRIC SERV.
1440, 1442 (1999).
184. See AAPL Ethics Guidelines, supra note 137, § II, and Forensic Psychology Guidelines, supra note 78, at 11 (§ 4.02).
185. Similar conflicts are found in other contexts. For example, a psychiatrist who evaluates an individual for civil commitment may later be
put in the role of the attending physician following involuntary hospitalization.
186. A thoughtful discussion of these issues appears in the report of the National Institute of Mental Health task force that reviewed
procedures at St. Elizabeths Hospital in Washington, D.C., prompted by concerns with the hospital’s management of John Hinckley, the
patient who attempted to assassinate President Ronald Reagan. See Final Report of the National Institute of Mental Health (NIMH) Ad Hoc
Forensic Advisory Panel, 12 MENTAL & PHYSICAL DISABILITY L. REP. 77 (1988) [hereinafter NIMH Panel].
187. The NIMH Panel (supra note 186) concluded that in such contexts, therapists should be required to provide input into decisions
regarding patient management and discharge planning:

The panel also notes, however, that assessing the likelihood of future violent behavior of forensic patients requires the calibration of multiple
factors including the patient’s medical progress, underlying personality characteristics, and the environmental stresses that will likely be
encountered upon release. The dynamics of a patient’s committing offense may offer certain clues toward understanding and prediction. . . .
The treatment staff needs to consider detailed information not only about the patient’s medical progress but how multiple factors come
together to make the next step safe. Some of the relevant information may be best understood and known by the patient’s therapist. . . . This
information should, therefore, be integrated into the forensic assessment and prediction process and documented. . . . Many communications
in therapy are not recorded on charts, shared directly with others on the treatment team nor do they become open later to court scrutiny and
review. . . . The safeguards [for release decisionmaking] should ensure that all clinically relevant information (even that learned in therapy)
does go forward and is at least potentially available to the court in its role in release decisionmaking. (Id. at 78–79)

Although the patient should be advised that the therapist may make limited disclosures to other hospital staff involved in a collateral forensic
evaluation, efforts should be made to otherwise preserve the therapeutic role and relationship. Thus the NIMH Panel also advised: “The Panel
recommends that patients’ therapists not be subpoenaed to court to testify at release hearings.” Id. at 79.
188. See AAPL Ethics Guidelines, supra note 137, § II.
189. Id.
190. Forensic Psychology Guidelines, supra note 78, at 10 (preface to guideline 8.01 and guideline 6.03).
191. This tension parallels that which arises in similar situations in the law—for example, when the “best” information for purposes of
determining the “truth” may have to give way to “justice” concerns that an individual’s privacy right not be sacrificed in the process of obtaining
that evidence. See § 7.02, discussing search-and-seizure law.
192. See Ethical Principles, supra note 78, std. 3.10.
193. Mossman et al., supra note 10, at S24 (citations omitted).
194. Ethical Principles, supra note 78, principle E (Respect for People’s Rights and Dignity).

Chapter 5

1. See Symposium, Justice and Mental Health Systems Interactions, 16 LAW & HUM. BEHAV. 1 (1992).
2. Evaluations connected with private civil litigation (e.g., torts and, in most states, child custody disputes) are often conducted by mental
health professionals in independent practice who are not subject to any “system” as such (although, as discussed in § 16.01(b)(2), some states
have established special court clinics in which professionals provide services to children and parents involved in dependency and custody

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matters). Civil evaluations that are mandated by the government (e.g., workers’ compensation, Social Security, and civil commitment
determinations) do take place within a “system,” but these evaluations are relatively standardized, because they commonly arise in administrative
structures guided by detailed statutes or regulations [see Chapter 13]. Also, even though such evaluations involve public law, their immediate
consequences usually apply only to the subjects and their families (unlike criminal and juvenile cases, in which retribution and incapacitation are
often immediate public concerns). Therefore, most of the controversy about the design of forensic service systems has focused on ways of
evaluating persons involved in the criminal and juvenile justice systems, and our own discussion has a similar emphasis.
3. This section and § 5.05 appeared earlier in somewhat different form in Gary B. Melton, Expert Opinions: “Not for Cosmic Understanding,”
in PSYCHOLOGY IN LITIGATION AND LEGISLATION 55 (Bruce D. Sales & Gary Van den Bos eds., 1994).
4. See JEROME D. FRANK, PERSUASION AND HEALING (3d ed. 1991); PLACEBO: THEORY, RESEARCH, AND
MECHANISMS (Leonard White et al. eds., 1985).
5. See, e.g., Richard Robinson & Marvin Acklin, Fitness in Paradise: Quality of Forensic Reports Submitted to the Hawaii Judiciary, 33 INT’L
J.L. & PSYCHIATRY 131 (2010) (finding that reports summarizing competence-to-proceed evaluations that were submitted by mental health
professionals who provided full-time forensic services were of higher quality than those submitted by mental health professionals whose work
was not solely forensic).
6. Stuart Greenberg & Daniel Shuman, Irreconcilable Conflict between Forensic and Therapeutic Roles, 28 PROF. PSYCHOLOGY: RES.
& PRAC. 50 (1997).
7. See, e.g., Am. Psychol. Ass’n, Ethical Principles of Psychologists and Code of Conduct, 57 AM. PSYCHOLOGIST 1060, std. 7.03 (2010);
Am. Psychol. Ass’n, Specialty Guidelines for Forensic Psychology, 68 AM. PSYCHOLOGIST 7, guidelines 4.02 & 4.02.01 (2013); Am. Acad.
Psychiatry & the Law, Ethics Guidelines for the Practice of Forensic Psychiatry, commentary accompanying guideline IV (May 2005), available
at http/www.aapl.org/ethics.htm.
8. Of course, this particular problem can be avoided—albeit often with some loss of efficiency and privacy—by conducting jail-based
evaluations of defendants currently in custody. Nonetheless, the broader point is still applicable. General clinicians’ forays into the legal system
(often with great publicity) may affect other clients’ and potential clients’ trust.
9. GARY B. MELTON, LOIS WEITHORN & CHRISTOPHER SLOBOGIN, COMMUNITY MENTAL HEALTH CENTERS
AND THE COURTS: AN EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES 113 (1985).
10. Payment for community-based evaluations came from court budgets, while the much greater cost of state-financed hospital evaluations
was not incurred by the referring agency. Id. at 90–92.
11. VA. CODE ANN. §§ 19.2-168.1 & 19.2-169.1 to 19.2-169.7.
12. See, e.g., James R.P. Ogloff & Ronald Roesch, Using Community Mental Health Centers to Provide Comprehensive Mental Health Services
to Local Jails, in LAW AND PSYCHOLOGY: THE BROADENING OF THE DISCIPLINE 241, 252–58 (James R.P. Ogloff ed., 1992).
13. Henry J. Steadman, Boundary Spanners: A Key Component for the Effective Interactions of the Justice and Mental Health Systems, 16
LAW & HUM. BEHAV. 75 (1992).
14. To be clear, as the discussion infra indicates, our desire to have most forensic assessments conducted by specialists in forensic mental
health does not imply that the specialists should be located outside the regular community mental health system. Integration of forensic services
into community mental health services is needed to avoid establishing a chronically underfunded and understaffed de facto corrections program,
and to assure responsiveness to people in conflict with their relatives and neighbors and in periods of great crisis. Such an approach may
ultimately reduce unnecessary court referrals.
15. MELTON ET AL., supra note 9 at 43–55. It is important to note that samples of forensic clinicians in this study were probably atypical.
One group consisted of community mental health professionals who had participated in an extensive training program at the Institute of Law,
Psychiatry and Public Policy at the University of Virginia. The other group was composed of psychologists certified in forensic psychology by
the American Board of Professional Psychology. These groups showed that they possessed a specialized body of knowledge commonly possessed
by neither judges nor general mental health professionals. See also Robinson & Acklin, supra note 5 (finding that reports summarizing
competence-to-proceed evaluations that were submitted by mental health professionals who completed state-focused forensic training were of
higher quality than reports completed by examiners who did not complete the training).
16. This section is derived from Norman Poythress, Randy Otto & Kirk Heilbrun, Pretrial Evaluations for Criminal Courts: Contemporary
Models of Service Delivery, 18 J. MENTAL HEALTH ADMIN. 198–207 (1991). Information about the number of states following the
models is drawn from Thomas Grisso et al., The Organization of Pretrial Evaluation Services: A National Profile, 18 LAW & HUM. BEHAV.
377 (1994). Thus the latter information is outdated, but to our knowledge no follow-up survey has been done.
17. See, e.g., RONALD ROESCH & STEPHEN GOLDING, COMPETENCY TO STAND TRIAL 188–91 (1980).
18. See generally Ingo Keilitz et al., Least Restrictive Treatment of Involuntary Patients: Translating Concepts into Practice, 29 ST. LOUIS U.
L.J. 691 (1985).
19. Of course, this approach could also be used in the inpatient context. By the same token, the more global approach could be used in the

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outpatient context, although it would be less feasible in many cases.
20. Thomas Grisso et al. (personal communication, Sept. 11, 1995) at 50.
21. Id. at 50–51. But see Grisso et al., supra note 16, at 386 (Table 6), for different figures: inpatient (27.2-day average); local outpatient (19-
day average for private practitioner system, 27.1-day average for community-based system); and outpatient hospital (49-day average). The latter
average is much higher than that reflected in the text, and may affect the cost assessment.
22. MELTON ET AL., supra note 9, at 27–42.
23. Norman Poythress, Forensic Examiner Training in Alabama (paper presented at the meeting of the American Psychology–Law Society,
Williamsburg, VA, Mar. 1990).
24. See supra note 21.
25. See generally Gary B. Melton, Community Psychology and Rural Legal Systems, in RURAL PSYCHOLOGY (Alan W. Childs & Gary
B. Melton eds., 1983) (discussing potential benefits of psychological consultation in the legal system in rural communities).
26. MELTON ET AL., supra note 9, at 43–67.
27. Cf. Thomas Grisso, The Economic and Scientific Future of Forensic Psychological Assessment, 42 AM. PSYCHOLOGIST 831 (1987)
(discussing ways that market forces may diminish or increase the quality of forensic assessments).
28. Poythress et al., supra note 16.
29. Janet Warren et al., Forensic Mental Health Clinical Evaluation: An Analysis of Interstate and Intersystemic Differences, 21 LAW &
HUM. BEHAV. 377 (1997).
30. MELTON ET AL., supra note 9, at 59–67; Lawrence Fitch & Janet Warren, Community-Based Forensic Evaluation, 11 INT’L J.L. &
PSYCHIATRY 359 (1988).
31. John F. Edens et al., Effects of State Organizational Structure and Forensic Examiner Training on Pretrial Competence Assessments, 26
LAW & HUM. BEHAV. 140, 146–47 (1999).
32. See, e.g., MELTON ET AL., supra note 9, at 79–83.
33. Id. See generally HENRY J. STEADMAN ET AL., THE MENTALLY ILL IN JAIL: PLANNING FOR ESSENTIAL
SERVICES (1989) (describing the state of mental health services in jails in the United States); Ogloff & Roesch, supra note 12, at 245–51
(discussing the rationale for jail-based mental health services, including forensic services). See also Karen A. Abram & Linda A. Teplin, Co-
Occurring Disorders among Mentally Ill Jail Detainees: Implications for Public Policy, 46 AM. PSYCHOLOGIST 1036 (1991); Linda A.
Teplin, The Criminalization Hypothesis: Myth, Misnomer, or Management Strategy?, in LAW AND MENTAL HEALTH: MAJOR
DEVELOPMENTS AND RESEARCH NEEDS 149 (Saleem A. Shah & Bruce D. Sales eds., 1991) (discussing the risk of detention in jail
for people with serious mental illnesses when therapeutic alternatives are believed to be unavailable); Henry J. Steadman et al., The Diversion of
Mentally Ill Persons From Jails to Community-Based Services: A Profile of Programs, 85 AM. J. PUB. HEALTH 1630 (1995) (describing
effective means for diverting offenders with mental disorders from jails).
34. A fundamental constitutional principle is that involuntary restrictions on liberty and intrusions on privacy should be no greater than
necessary to meet the state’s compelling interest. See, e.g., Jackson v. Indiana, 406 U.S. 715, 717; Shelton v. Tucker, 364 U.S. 479, 488 (1960);
Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966).
35. For a discussion of the abuse of hospital-based evaluations of competence to proceed, see § 6.03(c).
36. Most of this section is derived from MELTON ET AL., supra note 9, chs. 6, 7. For a similar discussion in connection with juvenile
services, see IVAN KRUH & THOMAS GRISSO, DEVELOPING SERVICE DELIVERY SYSTEMS FOR EVALUATIONS OF
JUVENILES’ COMPETENCE TO STAND TRIAL: A GUIDE FOR STATES AND COUNTIES (NATIONAL CENTER FOR
MENTAL HEALTH AND JUVENILE JUSTICE, 2017), available at https://www.ncmhjj.com/resources/developing-service-delivery-
systems-for-evaluations-of-juveniles-competence-to-stand-trial/.
37. Douglas A. Hastings & Richard J. Bonnie, A Survey of Pretrial Psychiatric Evaluations in Richmond, Virginia, 1 DEV. MENTAL
HEALTH L. 9–12 (1981); Ronald Roesch & Stephen Golding, Legal and Judicial Interpretation of Competency to Stand Trial Statutes and
Procedures, 16 CRIMINOLOGY 420–29 (1978).
38. For an example of such a statute, see VA. CODE ANN. §§ 19.2-169.1 & 19.2-169.5 (dealing with the procedures for performing
competence and sanity evaluations and for filing a report).
39. MELTON ET AL., supra note 9, at 98–99.
40. The American Academy of Psychiatry and the Law maintains a list of accredited forensic psychiatry fellowships (see
http://www.aapl.org/fellow.php); the American Psychology–Law Society maintains a list of graduate programs, internships, and fellowships
devoted to forensic matters as well (see http://www.apadivisions.org/division-41/education/programs/index.aspx); and continuing education
offerings in forensic psychology practice are provided throughout the United States by the American Academy of Forensic Psychology (see
http://www.aafpforensic.org/workshops).
41. MELTON ET AL., supra note 9, at 53–54 & 94–100.

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 42. For an example of such training in the juvenile context, see http://njdc.info/our-work/training. This training program, developed by the
National Juvenile Defender Center and Juvenile Law Center for attorneys who represent children in juvenile court proceedings, has five
modules: Adolescent Development; Screening, Assessing, and Evaluating Youth; Special Education and Disability Rights; Communication
with Youth: Interviews and Colloquies; and Legal Questions about Youth Capacities.
43. See AM. BAR ASS’N, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS (2d ed. 2016), std. 7-1.7.
44. See, e.g., Gary B. Melton, Effects of a State Law Permitting Minors to Consent to Psychotherapy, 12 PROF. PSYCHOL. 647 (1981);
Marsha B. Liss & Linda E. Weinberger, Psychologists’ Knowledge of Mental Health Laws, or I Didn’t Know I Was Legally Responsible for That
(paper presented at the meeting of the American Psychology–Law Society, Chicago, Oct. 1983).
45. Cf. Lawrence H. Cohen et al., Use of Psychotherapy Research by Professional Psychologists, 41 AM. PSYCHOLOGIST 198 (1986)
(describing clinical psychologists’ reliance on oral communications from trusted colleagues and their limited reading of journals and research
books); Thomas Grisso & Gary B. Melton, Getting Child Development Research to Legal Practitioners: Which Way to the Trenches?, in
REFORMING THE LAW: IMPACT OF CHILD DEVELOPMENT RESEARCH 146 (Gary B. Melton ed., 1987).
46. See, e.g., STEPHEN L. WASBY, SMALL TOWN POLICE AND THE SUPREME COURT: HEARING THE WORD (1976).
47. MELTON ET AL., supra note 9, at 100–01.
48. Robert Fein et al., The Designated Forensic Professional Program: A State Government–University Partnership to Improve Forensic Mental
Health Services, 18 J. MENTAL HEALTH ADMIN. 223 (1991).
49. For a contrast of opinions regarding the attractiveness of the forensic specialty over time, compare Stephen J. Morse, Failed Explanations
and Criminal Responsibility: Experts and the Unconscious, 68 VA. L. REV. 971, 1053–54 (1982) with Randy K. Otto & Kirk Heilbrun, The
Future of Forensic Psychology: A Look toward the Future in Light of the Past, 57 AM. PSYCHOLOGIST 6 (2002).
50. Randy Otto et al., Training and Credentialing in Forensic Psychology, 8 LAW & HUM. BEHAV. 271, 226–27 (1990).
51. W. Neil Gowensmith et al., State Standards for Training and Certifying Evaluators of Competency to Stand Trial, 15 J. FORENSIC
PSYCHOL. PRAC. 295 (2015) (surveying 50 states and concluding that numerous states still do not require certification, but do offer other
means of improving evaluation services).
52. See Fein et al., supra note 48.
53. An additional situation in which a noncertified clinician may be called as an expert might occur when the clinician has been treating a
person for an extended period, during which the person allegedly becomes involved in a crime. The treating clinician’s opinions may provide
especially probative evidence concerning the defendant’s mental state near or at the time of the offense. However, as we caution in § 4.05(c)(2),
the ethically pure role in such a dual-role situation is to resist offering an expert opinion and to act as a fact witness, recounting solely
observations about behavior.
54. John Petrila, Forensic Psychiatry and Community Mental Health, 2 DEV. MENTAL HEALTH L. 1 (1981).
55. Henry J. Steadman et al., Mentally Disordered Offenders: A National Survey of Patients and Facilities, 6 LAW & HUM. BEHAV. 31
(1982).
56. See, e.g., Anne G. Crocker et al., Research Priorities in Mental Health, Justice and Safety: A Multi-Disciplinary Stakeholder Report, 14
INT’L J. FORENSIC MENTAL HEALTH 205 (2015) (describing the types of data that should be obtained for a well-functioning forensic
system).
57. See MELTON ET AL., supra note 9, at 92.
58. Id.
59. See Poythress et al., supra note 16, at 203.
60. Grisso, supra note 27.
61. See RANDY K. OTTO, ALAN M. GOLDSTEIN & KIRK HEILBRUN, ETHICS IN FORENSIC PSYCHOLOGY PRACTICE
(2017) (identifying a number of practice guidelines, published by various professional psychological, psychiatric, and interdisciplinary
organizations, that address issues directly relevant to a multitude of forensic practice pursuits—including matters as diverse as child custody
evaluations, competence-to-proceed evaluations, disability evaluations, use of response style measures, functioning as a parent coordinator, and
surreptitious recording of forensic examinations).
62. One way of disseminating research, not discussed in the text, is to change the system to make it more receptive to such research. Grisso’s
colleague Paul S. Appelbaum has argued for such a specialized system for civil commitment decisions. Appelbaum, Civil Commitment from a
Systems Perspective, 16 LAW & HUM. BEHAV. 61 (1992). Similarly, Melton has proposed development of a specialized bar in the juvenile
court system—to more effectively use and debunk psychological and psychiatric evidence on substantive issues in proceedings involving children,
and to apply developmental knowledge to improve the quality of representation of children. See generally Gary B. Melton, Taking Gault
Seriously: Toward a New Juvenile Court, 68 NEB. L. REV. 146 (1989).
In describing prevailing approaches to criminal forensic evaluation, Grisso et al., supra note 16, at 389–90, found that systematization—
establishment of a network of community programs providing evaluations—resulted in far more continuing education and quality control than

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occurred in states using either traditional inpatient models or ad hoc appointment of private practitioners. The states using community agencies
also had higher satisfaction with their forensic services. Id. at 390.
63. See generally REFORMING THE LAW: IMPACT OF CHILD DEVELOPMENT RESEARCH (Gary B. Melton ed., 1987)
[hereinafter REFORMING THE LAW]; Gary B. Melton, Bringing Psychology to the Legal System: Opportunities, Obstacles, and Efficacy, 42
AM. PSYCHOLOGIST 488 (1987).
64. Grisso & Melton, supra note 45, at 146.
65. Thomas L. Hafemeister & Gary B. Melton, The Impact of Social Science Research on the Judiciary, in REFORMING THE LAW,
supra note 63, at 27.
66. Gary B. Melton, Guidelines for Effective Diffusion of Child Development Research into the Legal System, in REFORMING THE LAW,
supra note 63, at 280.
67. See generally CAROL H. WEISS & E. SINGER, REPORTING OF SOCIAL SCIENCE IN THE NATIONAL MEDIA (1988).
68. It is also interesting to note that the extent to which judges read literature, in whatever form, varies directly with the extent of their
secretarial help. MELTON ET AL., supra note 9, at 76 (r = .72 in one sample of trial judges).
69. See WASBY, supra note 46.
70. Kathryn Olson & Aleisa C. McKinlay, Peer Networking as a Method of Dissemination of Information to Judges about Child Sexual Abuse
(Center on Children, Families, and the Law, University of Nebraska–Lincoln, 1993).
71. This process would be ideal for communication of information related to development or maintenance of a forensic service system. It also
is an inexpensive way of providing external consultation by nationally recognized authorities about issues in using expert opinions in particular
contexts.
72. For example, the Scientific Paper Review Committee of the American Psychology–Law Society has commissioned “white papers” on
such topics as false confessions and eyewitness identification. See, e.g., Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations, 34 LAW & HUM. BEHAV. 3 (2010), and Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for
Lineups and Photospreads, 22 LAW & HUM. BEHAV. 603 (1998).
73. See, e.g., Gary B. Melton, Organized Psychology and Legal Policy-Making: Involvement in the Post-Hinckley Debate, 16 PROF.
PSYCHOL.: RES. & PRAC. 810 (1985).
74. See Gary B. Melton et al., Psychologists as Law Professors, 42 AM. PSYCHOLOGIST 502 (1987).
75. It should also be noted that therapists—in contrast with evaluators—may not be entitled to fees for testimony, because they are
considered fact witnesses, not experts. See, e.g., Baird v. Larson, 59 Wash. App. 715 (1990).
76. Forensic evaluations typically are not covered by insurance policies, because such evaluations are occurring as part of a legal strategy; they
are not “medically necessary.” When coverage is thus limited, billing implicitly or explicitly representing that the services were medically
necessary would be fraudulent.
77. ERIC G. MART, GETTING STARTING IN FORENSIC PSYCHOLOGY PRACTICE: HOW TO CREATE A FORENSIC
SPECIALTY IN YOUR MENTAL HEALTH PRACTICE 131 (2006).
78. Robert L. Sadoff, Practical Issues in Forensic Psychiatric Practice, in PRINCIPLES AND PRACTICE OF FORENSIC
PSYCHIATRY 41, 45 (Richard Rosner ed., 1994).
79. Id. at 46.
80. Sadoff flatly states that “[i]t is not recommended to advertise one’s wares or skills in legal journals or daily newspapers.” Id. at 45.
81. FLA. STAT. § 490.009(2)(d)(e) (1995).

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Chapter 6

1. Bruce Winick, Incompetency to Stand Trial: Developments in the Law, in MENTALLY DISORDERED OFFENDERS:
PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 3 (John Monahan & Henry Steadman eds., 1983).
2. The defendant’s usual reason for “intentionally not entering a plea (i.e. being mute of malice) was to preserve [the defendant’s] property for
his family and avoiding the forfeiture to the Crown which followed conviction. By not entering a plea, there could be no trial, no conviction and
hence no forfeiture.” Amar Shah, Making Fitness to Plead Fit for Purpose, 1 INT’L J. CRIMINOLOGY & SOCIOLOGY 176, 178 (2012).
3. Winick, supra note 1, at 3–4. See also GROUP FOR THE ADVANCEMENT OF PSYCHIATRY (GAP), MISUSE OF
PSYCHIATRY IN THE CRIMINAL COURTS: COMPETENCY TO STAND TRIAL (1974) [hereinafter GAP].
4. 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 2181 (W. Jones ed., 1916). Blackstone also
noted the requirement that the defendant be competent throughout all phases of the criminal process, going on to state that if the defendant
“loses his senses” after conviction but prior to judgment, judgment shall not be pronounced, and if the defendant “becomes of nonsane memory”
after judgment, execution shall be stayed. Id. at 2182.
5. Frith’s Case, 22 How. St. Tr. 307 (1790).
6. JUSTIN MILLER, HANDBOOK ON CRIMINAL LAW 28–32 (1934).
7. United States v. Lawrence, 26 F. Cas. 887 (D.C. Cir. 1835).
8. Youtsey v. United States, 97 F. 937, 940–41 (6th Cir. 1899).
9. Drope v. Missouri, 420 U.S. 162, 172 (1975). See also Dusky v. United States, 362 U.S. 402 (1960); Godinez v. Moran, 509 U.S. 389
(1993).
10. Note, Incompetency to Stand Trial, 81 HARV. L. REV. 454, 457–58 (1967).
11. See also id. at 458 (“In part there is the notion that the state is justified in imposing sanctions only where there is a possibility that the
person convicted will realize the moral reprehensibility of his conduct”).
12. 362 U.S. 402 (1960).
13. Id.
14. As is true in other areas (e.g., civil commitment, discussed in Chapter 10), statutory definitions vary among the states. The statutory
definitions are collected in Douglas Mossman et al., AAPL Practice Guideline for the Forensic Psychiatric Evaluation of Competence to Stand
Trial, 35 J. AM. ACAD. PSYCHIATRY & L. S3, S59–S67 (2007 supp.). Explicit differences between state competence standards are
minimal. As one review concluded, “all states construe their statutes to conform with the Dusky standard.” Grant H. Morris et al., Competency
to Stand Trial on Trial, 4 HOUS. J. HEALTH L. & POL’Y 193, 208 (2004). Even when jurisdictions use different language, they usually
apply similar standards. Id. at 225–26.
15. One commentary has observed that despite the fact that concerns for fairness underlie the competence doctrine, “as a practical matter . . .
these considerations cannot require that every defendant have ‘a high degree of performance capacity.’ . . . Many defendants lack the intelligence
or the legal sophistication to participate actively in the conduct of their defense. But enlarging the class of persons considered incompetent to
stand trial to include all such defendants would fundamentally alter the administration of the criminal law.” Note, supra note 10, at 459. As §
6.06(a) indicates, among defendants referred for a competence evaluation, well under half are adjudicated incompetent.
16. See Astrid Birgden & Don Thomson, The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed
Assessment Procedure Involving Mental Health Professionals and Lawyers, 6 PSYCHIATRY PSYCHOL. & L. 207, 211 (1999) (discussing the
relationship between complexity and competence). See also Samuel Jan Brakel, Competency to Stand Trial: Rationalism, “Contextualism,” and
Other Modest Theories, 21 BEHAV. SCI. & L. 285 (2003).
17. Morris v. Slappy, 461 U.S. 1, 13 (1983). Although Morris was not a competence case, but rather focused on whether the lack of a
meaningful relationship rendered counsel ineffective, it suggests that a defendant need not be capable of forming a high-quality attorney–client
relationship to be competent to proceed.
18. Wolf v. United States, 430 F.2d 443, 445 (10th Cir. 1970); accord, People v. Lang, 113 Ill. 2d 407, 498 N.E.2d 1105 (1986); State v.
Black, 815 S.W.2d 166 (Tenn. 1991); State v. Perry, 502 So. 2d 543 (La. 1986), cert. denied, 484 U.S. 872 (1987); Harper v. State, 579 N.E.2d
68 (Ind. 1991). For additional discussion, see Mossman et al., supra note 14, at S12.
19. FLA. R. CRIM. P. § 3.211(a).
20. Richard J. Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation, 10 BEHAV. SCI. & L. 291 (1992); Richard J.
Bonnie, The Competence of Criminal Defendants: Beyond Dusky & Drope, 47 U. MIAMI L. REV. 539 (1993).
21. See, e.g., Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991), cert. denied, 112 S. Ct. 1942 (1992); Martin v. Estelle, 546 F.2d 177, 180
(5th Cir.), cert. denied, 431 U.S. 971 (1977); Wieter v. Settle, 193 F. Supp. 318, 321–22 (W.D. Mo. 1961).
22. GAP, supra note 3, at 896–97.

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 23. “Legal competence constructs focus on person–context interactions. A legal competence question . . . asks . . . ‘Does this person’s level of
ability meet the demands of the specific situation with which the person will be (was) faced?’ ” THOMAS GRISSO, EVALUATING
COMPETENCIES 32 (2003). See also references, supra note 16.
24. 46 A.L.R. 3d 544 (1972).
25. Though this distrust has a lengthy history, empirical data show that it is justified. See, e.g., Maaike Cima et al., Claims of Crime-Related
Amnesia in Forensic Patients, 27 INT’L J.L. & PSYCHIATRY 215, 218 (2004) (23% of male forensic inpatients charged with serious crimes
claimed either partial or total amnesia).
26. Commonwealth ex rel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758, 763 (1966), cert. denied, 385 U.S. 869. The court also noted that
“for over 100 years, lack of memory in murder cases has been a common and frequent defense.” 218 A.2d at 760.
27. State v. McClendon, 103 Ariz. 103, 437 P.2d 421, 424, 425 (1968).
28. 391 F.2d 460 (1968).
29. Id. at 463–64.
30. 325 F. Supp. 485 (D. Tenn. 1971).
31. 469 F.3d 1113 (7th Cir. 2006).
32. Id. at 1119.
33. Bruce Winick, Psychotropic Medication and Competence to Stand Trial, 1977 AM. B. FOUND. RES. J. 769, 773 (1977).
34. 504 U.S. 127 (1992).
35. 539 U.S. 166 (2003).
36. Id. at 180–81.
37. Winick, supra note 1, at 9.
38. Stuart E. Eizenstadt, Mental Competency to Stand Trial, 4 HARV. C.R.-C.L. L. REV. 379 (1969).
39. American Academy of Psychiatry and the Law (AAPL), Ethics Guidelines for the Practice of Forensic Psychiatry (May 2005), available at
http://www.aapl.org/ethics.htm (accessed May 1, 2016).
40. Am. Psychol. Ass’n, Specialty Guidelines for Forensic Psychology, 68 AM. PSYCHOLOGIST 7, 13 (2013).
41. AM. BAR ASS’N (ABA), CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-4.4(a)(ii) (2016) [hereinafter ABA
STANDARDS].
42. 383 U.S. 375 (1966).
43. Bruce Winick, Incompetency to Stand Trial: An Assessment of Costs and Benefits, and a Proposal for Reform, 39 RUTGERS L. REV.
243, 265–66 (1987).
44. See § 6.04(d).
45. Rodney J. Uphoff, The Role of the Criminal Defense Lawyer in Representing the Mentally Impaired Defendant: Zealous Advocate or Officer
of the Court?, 1988 WISC. L. REV. 65.
46. ABA STANDARDS, supra note 41, std. 7-4.3(c) (emphasis added).
47. Id., std. 7-4.8(b).
48. 383 U.S. 375 (1966). See also 18 U.S.C. § 4241(a).
49. 420 U.S. 162 (1975).
50. Id. at 180.
51. For a recent example, see State v. Dort, 106 A.3d 277 (2014) (trial court abused its discretion by not ordering a second competence
evaluation after defense counsel raised new concerns about his client’s competence).
52. Arthur H. Rosenberg & A. Louis McGarry, Competency for Trial: The Making of an Expert, 128 AM. J. PSYCHIATRY 82 (1972).
53. RONALD ROESCH & STEPHEN GOLDING, COMPETENCY TO STAND TRIAL 50–52 (1980).
54. Id. at 193–97; Ronald Roesch & Stephen Golding, Legal and Judicial Interpretation of Competency to Stand Trial, 16 CRIMINOLOGY
420 (1978).
55. Jeffrey Geller & Eric D. Lister, The Process of Criminal Commitment for Pretrial Psychiatric Examination: An Evaluation, 135 AM. J.
PSYCHIATRY 53 (1978). See also ALAN STONE, MENTAL HEALTH AND THE LAW: A SYSTEM IN TRANSITION 63 (1976)
(suggesting that when police learn the strictures of “imminent dangerousness” in the context of civil commitment, they are more likely to rely on
the criminal justice system to force entry of “crazy” people who are “disturbing the peace” into the mental health system).
56. ROESCH & GOLDING, supra note 53, at 192.
57. John T. Phillipsborn, Searching for Uniformity in Adjudications of the Accused’s Competence to Assist in Capital Cases, 10 PSYCHOL.
PUB. POL’Y & L. 417, 418 (2004) (cataloguing reasons why using competence evaluations for delay purposes could backfire); Ira K. Packer,
The Court Clinic System in Massachusetts: A Therapeutic Approach vs. a Rights-Oriented Approach, 20 NEW ENG. J. ON CRIM. & CIV.
CONFINEMENT 291, 294 (1994) (finding that the forensic system was not being used as a means of obtaining treatment for individuals who

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were uncommittable under civil commitment standards).
58. Robert A. Burt & Norval Morris, A Proposal for the Abolition of the Incompetency Plea, 40 U. CHI. L. REV. 66, 88 (1972).
59. Thomas Grisso et al., The Organization of Pretrial Forensic Evaluation Services: A National Profile, 18 LAW & HUM. BEHAV. 377,
384–85 (1994); Norman G. Poythress et al., Pretrial Evaluations for Criminal Courts: Contemporary Models of Service Delivery, 18 J. MENTAL
HEALTH ADMIN. 198 (1991). A disclosure is appropriate here: Petrila began the decentralization of the Missouri forensic system when he
was Director of Forensic Services from 1979 to 1981, and Melton and Slobogin were involved in decentralizing the Virginia forensic system. See
GARY B. MELTON, LOIS WEITHORN & CHRISTOPHER SLOBOGIN, COMMUNITY MENTAL HEALTH CENTERS AND
THE COURTS: AN EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES (1985).
60. See, e.g., Richard Robinson & Marvin Acklin, Fitness in Paradise: Quality of Forensic Reports Submitted to the Hawaii Judiciary, 33
INT’L J.L. & PSYCHIATRY 131 (2010); Russell C. Petrella & Norman G. Poythress, The Quality of Forensic Evaluations: An
Interdisciplinary Study, 51 J. CONSULTING & CLINICAL PSYCHOL. 76 (1983).
61. Today most of the federal circuits and a majority of states allow psychologists to testify on essentially the same footing as psychiatrists.
See Annotation, Qualification of Nonmedical Psychologist to Testify as to Mental Condition or Competency, 72 A.L.R. 5th 529 (2015).
62. Ronald Roesch & Stephen Golding, Treatment and Disposition of Defendants to Stand Trial: A Review and Proposal, 2 INT’L J.L. &
PSYCHIATRY 349, 365 (1979); Joyce K. Laben et al., Reform from the Inside: Mental Health Center Evaluations of Competency to Stand Trial,
5 J. COMMUNITY PSYCHOL. 52 (1977).
63. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE (6th ed. 2014), ch. 20 (bail),
ch. 25 (speedy trial).
64. In particular, the rise of mental health courts that divert mentally ill defendants from the usual adjudicatory tracks into treatment
dispositions may have reduced the number of defendants for whom attorneys might otherwise have sought competence evaluations. See, e.g.,
A.J. Lurigio et al., Therapeutic Jurisprudence in Action: Specialized Courts for the Mentally Ill, 84 JUDICATURE 189 (2001); Henry J.
Steadman et al., From Referral to Disposition: Case Processing in Seven Mental Health Courts. 23 BEHAV. SCI. & L. 215 (2005).
65. Note, supra note 10, at 470; Carter v. United States, 252 F.2d 608, 617–18 (D.C. Cir. 1957); Patricia A. Zapf et al., Have the Courts
Abdicated Their Responsibility for Determination of Competency to Stand Trial to Clinicians?, 4 J. FORENSIC PSYCHOL. PRAC. 27, 42
(2004) (psychologists “argue that the final determination of the issue of competency is one that needs to be left in the hands of the court and
should not be abdicated to the mental health professional”).
66. W. Neil Gowensmith et al., Field Reliability of Competence to Stand Trial Opinions: How Often Do Evaluators Agree, and What Do Judges
Decide When Evaluators Disagree, 34 LAW & HUM. BEHAV. 19, 23 (2010) (finding 92.7% agreement between judges and the majority of
evaluators); Melissa L. Cox & Patricia Zapf, An Investigation of Discrepancies between Mental Health Professionals and the Courts in Decisions
about Competency, 28 LAW & PSYCHOL. REV. 109 (2004) (finding 99.6% agreement between judges and evaluators in Alabama); Keith R.
Cruise & Richard Rogers, An Analysis of Competency to Stand Trial: An Integration of Case Law and Clinical Knowledge, 16 BEHAV. SCI. &
L. 35 (1998) (above 90%); Ian Freckleton, Rationality and Flexibility in Assessment of Fitness to Stand Trial, 19 INT’L J.L. & PSYCHIATRY
39 (1996) (above 90%); Stephen Hart & Richard Hare, Predicting Fitness to Stand Trial: The Relative Power of Demographic, Criminal and
Clinical Variables, 5 FORENSIC REP. 53 (1992) (Canada). The just-mentioned articles cite studies from before 1990 that show similar
findings.
67. Zapf et al., supra note 65, at 35.
68. Id. at 41.
69. Alec Buchanan, Competency to Stand Trial and the Seriousness of the Charge, 34 J. AM. ACAD. PSYCHIATRY & L. 458 (2006);
Douglas Mossman, Conceptualizing and Characterizing Accuracy in Assessments of Competence to Stand Trial, 36 J. AM. ACAD.
PSYCHIATRY & L. 340 (2008).
70. 505 U.S. 437 (1992).
71. Bruce Winick, Presumptions and Burdens of Proof in Determining Competency to Stand Trial: An Analysis of Medina v. California and
the Supreme Court’s New Due Process Methodology in Criminal Cases, 47 U. MIAMI L. REV. 817 (1993).
72. Cooper v. Oklahoma, 517 U.S. 348 (1996).
73. See ARIZ. REV. STAT. ANN. § 13-4504(a); CAL. PENAL CODE § 1370.2; Onwu v. State, 692 So.2d 881 (Fla. 1997). The ABA’s
Criminal Justice Mental Health Standards recommend this practice as well:

[I]n lieu of or after a hearing, the parties may request that the court dispose of the case by either dismissing the charges without prejudice or
placing the charges in abeyance, pending the defendant’s successful participation in treatment, if (i) based on the reports of the evaluators, it
appears that the defendant is incompetent to proceed but would be a suitable candidate for mental health treatment, or (ii) the prosecutor
and the defense attorney agree that such diversion would be preferable to an order for restoration of competence to proceed, and (iii) the
defendant assents to such diversion.

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ABA STANDARDS, supra note 41, std. 7-4.8(e).
74. Roesch & Golding, supra note 62, at 349–50.
75. 406 U.S. 715 (1972).
76. Id. at 737–38.
77. STONE, supra note 55, at 212.
78. Roesch & Golding, supra note 62, at 355. These authors summarize a dozen proposals that deal with limitations on treatment and/or
disposition of criminal charges. They note that most of the proposals advocate a six-month limit on treatment, with an additional six months
available if needed—an addendum that STONE, supra note 55, at 212, has also suggested.
79. See, e.g., Patricia A. Zapf & Ron Roesch, Future Directions in Restoration of Competency to Stand Trial, 20 CURRENT DIRECTIONS
PSYCHOL. SCI. 43 (2011); Debra Pinals, Where Two Roads Meet: Restoration of Competence to Stand Trial from a Clinical Perspective, 31 N.
ENG. J. ON CRIM. & CIV. CONFINEMENT 81, 96–99 (2005).
80. See, e.g., Douglas R. Morris & George F. Parker, Jackson’s Indiana: State Hospital Competence Restoration in Indiana, 36 J. AM.
ACAD. PSYCHIATRY & L. 522 (2008); Douglas M. Mossman, Predicting Restorability of Incompetent Criminal Defendants, 35 J. AM.
ACAD. PSYCHIATRY & L. 34 (2007).
81. 104 F. Supp. 2d 663 (W.D. La. 2000).
82. Andrew R. Kaufman et al., Forty Years after Jackson v. Indiana: States’ Compliance with “Reasonable Period of Time” Ruling, 40 J. AM.
ACAD. PSYCHIATRY & L. 1 (2012); Nicolas Rosinia, How “Reasonable” Has Become Unreasonable: A Proposal for Rewriting the Lasting
Legacy of Jackson v. Indiana, 89 WASH. U. L. REV. 673, 689–90 (2012).
83. See, e.g., FLA. R. CRIM. P. 3.213(a).
84. At least one state supreme court has ruled this scheme constitutional. See State v. Williams, 930 N.E.2d 770 (Ohio 2010) (holding that
involuntary commitment under a criminal court’s jurisdiction pursuant to restrictive rules that also apply to insanity acquittees is “civil in nature”
and does not violate equal protection or due process).
85. New York’s experience is illustrative. Anecdotal evidence suggests that hospital staff members may be reluctant to move for complete
dismissal of charges because facility control over the individual would be loosened. For instance, an individual committed as incompetent to
stand trial receives no passes or furloughs unless an internal review by a forensic committee concurs that the person is not dangerous—a
procedure that is not required when a civilly committed patient is involved.
86. Nicole R. Johnson & Philip J. Candilis, Outpatient Competence Restoration: A Model and Outcomes, 5 WORLD J. PSYCHIATRY 228,
229 (2015) (describing the District of Columbia’s 32% success rate after 45 days). See also Disability Rights California, PLACEMENT OF
INDIVIDUALS FOUND INCOMPETENT TO STAND TRIAL: A REVIEW OF COMPETENCY PROGRAMS AND
RECOMMENDATIONS 21 (Publication No. CM52.01, 2012), available at http://www.disabilityrightsca.org/pubs/CM5201.pdf (accessed
May 6, 2016).
87. W. Neil Gowensmith et al., Lookin’ for Beds in All the Wrong Places: Outpatient Competency Restoration as a Promising Approach to
Modern Challenges, 22 PSYCHOL. PUB. POL’Y & L. 293, at 293 (2016) (describing the results of a preliminary investigation finding that
outpatient competence restoration programs demonstrated high restoration rates, low program failure rates, and significant cost savings).
88. ABA STANDARDS, supra note 41, std. 7-4.10(b)(ii) & (iii).
89. Id., std. 7-4.12(a).
90. Roesch & Golding, supra note 62, at 364.
91. MASS. GEN. LAWS ch. 123, § 17. For a similar approach, see S.C. CODE § 44-23-440 (2012). Our informal surveys of attorneys and
mental health professionals in Massachusetts and South Carolina indicate that defense attorneys rarely exercise this right, however.
92. In 2016, the ABA replaced the policy with one that required civil commitment or release of a nonrestorable defendant. See ABA
STANDARDS, supra note 41, std. 7-4.14.
93. OHIO REV. CODE ANN. § 2945.39.
94. Physicians refer to this phenomenon as “anosognosia,” which is found in more than half of persons with schizophrenia. Douglas S.
Lehrer & Jennifer Lorenz, Anosognosia in Schizophrenia: Hidden in Plain Sight, 11 INNOVATIONS CLINICAL NEUROSCI. 10, 12–13
(May–June 2014) (discussing possible neuroanatomical underpinnings for anosognosia).
95. In United States v. Weston, 255 F.3d 873, 877 (2001), attorneys for a defendant who faced capital murder charges argued that “the
ethical obligations a doctor owes a patient preclude forcible medication in these circumstances,” and that the trial court should therefore not
order involuntary treatment.
96. “It has long been recognized, in this and other jurisdictions, that the demeanor in court of one who has raised the issue of his sanity is of
probative value to the trier of fact.” People v. Hardesty, 139 Mich. App. 124; 362 N.W.2d 787, 795 (1984) (citing 19th-century sources).
Hardesty testified at his murder trial after having received more than two years of antipsychotic treatment, but the appeals court nonetheless
held that the medication had not interfered with his right to testify. Id. at 797. For a nuanced, detailed discussion of how these matters could

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affect trial rights, see United States v. Weston, 134 F. Supp. 2d 115, 134–35 (2001).
97. Khiem v. United States, 612 A.2d 160, 168 (D.C. Ct. App. 1992) (noting that most of the courts that have been asked to do so have
upheld the involuntary administration of psychotropic drugs to restore or maintain a defendant’s competency to stand trial). See also United
States v. Charters, 863 F.2d 302, 304–06 (4th Cir. 1988). But see Commonwealth v. Louraine, 453 N.E.2d 437 (Mass. 1983); State v. Hayes,
389 A.2d 1379 (N.H. 1978); State v. Law, 244 S.E.2d 302 (S.C. 1978).
98. 539 U.S. 166 (2003).
99. Id. at 180.
100. Id. at 181–82.
101. Id. at 182 (“Every State provides avenues through which, for example, a doctor or institution can seek appointment of a guardian with
the power to make a decision authorizing medication—when in the best interests of a patient who lacks the mental competence to make such a
decision”).
102. Id. at 179.
103. Id. at 180 (“The defendant’s failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the
mentally ill”).
104. At least one court has required that the authorization of involuntary medication to restore a nondangerous defendant to competence
must include the specific drugs psychiatrists intend to use and the proposed maximum dosages. United States v. Chavez, 734 F.3d 1247 (10th
Cir. 2013).
105. Commenting on a previous state decision (Hardesty) that contemplated allowing a defendant asserting an insanity defense to refuse
demeanor-changing medication, a Michigan appeals court stated: “Hardesty is highly questionable in light of [the U.S. Supreme Court’s
decision in] Riggins [v. Nevada] . . . Moreover, the holding in Hardesty does not really recognize that mental illness, or insanity, is not solely an
issue of demeanor, but also has to do with thought processes.” People v. Posby, 227 Mich. App. 219; 574 N.W.2d 398, 402 (1997).
106. For two vivid examples, see A Mother’s Madness: Andrea Yates Documentary, YOUTUBE (Feb. 25, 2016), available at
https://www.youtube.com/watch?v=vANWPV-PttI (video beginning at 8:55 shows a psychiatrist’s interview of the defendant) and UNM
Department of Psychiatry/Law School: Phillip J. Resnick, M.D., YOUTUBE, available at https://www.youtube.com/watch?v=dCnUlQt7YN0 (a
defense expert in the Andrea Yates trial provides a superb explanation of psychiatric evidence in the case).
107. See, e.g., FLA. R. CRIM. P. 3.215(c)(2) (“If the defendant proceeds to trial with the aid of medication for a mental or emotional
condition, on the motion of defense counsel, the jury shall, at the beginning of the trial and in the charge to the jury, be given explanatory
instructions regarding such medication”).
108. 389 A.2d 1379 (1978).
109. In cases involving defendants with serious mental illness, however, the right to counsel will usually be applicable. See Gagnon v.
Scarpelli, 411 U.S. 778 (1973) (holding that the right to counsel at revocation proceedings depends upon the complexity of the proceeding and
whether the petitioner is “capable of speaking effectively for himself”); Morrissey v. Brewer, 408 U.S. 471 (1972) (same).
110. Requiring competence before a defendant is eligible for pretrial release would defeat the purpose of such release, which is to permit the
defendant with roots in the community to sustain employment, live at home, and prepare a defense.
111. 531 F.2d 83 (2d Cir. 1976).
112. The right comes in many forms. Some jurisdictions require that the court address the defendant personally, United States v. Byars, 290
F.2d 515 (6th Cir. 1961); others hold that inquiry by the defense attorney is sufficient, Cummingham v. State, 575 P.2d 936 (Nev. 1978). Some
limit the right to certain crimes, Brogan v. Banmiller, 136 A.2d 141 (Pa. App. 1957) (allocution applicable only to murder); some do not permit
its exercise when conviction is by plea, Goodloe v. State, 486 S.W.2d 430 (Mo. 1972).
113. 656 F.2d 512 (9th Cir. 1981).
114. For instance, many states require a showing of prejudice before a violation of the right is found and resentencing ordered. See
Annotation, 96 A.L.R.2d 1292, 1296 (2011).
115. Chavez v. United States, 531 F.2d 83 (2d Cir. 1976).
116. See, e.g., FLA. R. CRIM. P. 3.720(a).
117. ABA. CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-5.2 (1989).
118. ABA STANDARDS, supra note 41, std. 7-8.7.
119. See, e.g., Denise L. Mumley et al., Five Year Research Update (1996–2000): Evaluations for Competence to Stand Trial (Adjudicative
Competence), 21 BEHAV. SCI. & L. 329 (2003); Kathleen Powers Stafford, Assessment of Competence to Stand Trial, in 11 HANDBOOK
OF PSYCHOLOGY: FORENSIC PSYCHOLOGY 359 (Alan M. Goldstein ed., 2003); J. Richard Ciccone, Competence to Stand Trial:
Efforts to Clarify the Concept and Improve Clinical Evaluations of Criminal Defendants, 12 CURRENT OPINION PSYCHIATRY 547 (1999);
Ronald Roesch et al., Defining and Assessing Competency to Stand Trial, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 327
(Allen K. Hess & Irving B. Weiner eds., 2d ed. 1999); LABORATORY OF COMMUNITY PSYCHIATRY, COMPETENCY TO

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STAND TRIAL AND MENTAL ILLNESS (1974); GAP, supra note 3; ROESCH & GOLDING, supra note 53; THOMAS GRISSO,
COMPETENCY TO STAND TRIAL EVALUATIONS: A MANUAL FOR PRACTICE (1988); Thomas Grisso, Pretrial Clinical
Evaluations in Criminal Cases: Past Trends and Future Directions, 23 CRIM. JUST. & BEHAV. 90 (1996); Thomas Grisso, Five-Year Research
Update (1986–1990): Evaluations for Competence to Stand Trial, 10 BEHAV. SCI. & L. 353 (1992).
120. Steven K. Hoge et al., Attorney–Client Decision Making in Criminal Cases: Client Competence and Participation as Perceived by Their
Attorneys, 10 BEHAV. SCI. & L. 385, 389 (1992) (finding that attorneys doubted the competence of their clients in 14.8% of 122 felony
cases); Norman G. Poythress et al., Client Abilities to Assist Counsel and Make Decisions in Criminal Cases: Findings from Three Studies, 18
LAW & HUM. BEHAV. 435, 450 (1994) (finding in three samples that included both felony and misdemeanor cases that attorneys doubted
competence in 7.9%, 14.7%, and 11% of cases); Jodi L. Viljoen et al., Defense Attorneys’ Concerns about the Competence of Adolescent
Defendants, 28 BEHAV. SCI. & L. 630 (2010) (survey of 214 attorneys with experience in juvenile court proceedings reporting concerns about
the competence of 9.7% of their clients).
121. In the study by Hoge et al., supra note 120, at 391, attorneys referred 52.6% of cases for evaluation of competence. In the three studies
by Poythress et al., supra note 120, at 450, only 20–45% of cases were referred for evaluation.
122. See Hoge et al., supra note 120.
123. Lisa M. Berman & Yvonne H. Osborne, Attorneys’ Referrals for Competency to Stand Trial Evaluations: Comparisons of Referred and
Nonreferred Clients, 5 BEHAV. SCI. & L. 373 (1980).
124. See Viljoen et al., supra note 120.
125. NORMAN G. POYTHRESS ET AL., ADJUDICATIVE COMPETENCE: THE MACARTHUR STUDIES 50 (2002).
126. ROESCH & GOLDING, supra note 53, at 47–49.
127. Robert A. Nicholson & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative Review of Comparative
Research, 109 PSYCHOL. BULL. 355, 358 (1991).
128. Janet I. Warren et al., Forensic Mental Health Clinical Evaluation: An Analysis of Interstate and Intersystemic Differences, 21 LAW &
HUM. BEHAV 377, 382–383 (1997) (reporting 13%, 18%, and 29% cases recommended incompetent in Virginia, Michigan, and Ohio,
respectively); S.E. Riley, Competency to Stand Trial Adjudication: A Comparison of Female and Male Defendants, 26 J. AM. ACAD.
PSYCHIATRY & L. 223, 227 (1998) (reporting 38% of cases recommended incompetent in a Phoenix, Arizona sample); Barry Rosenfeld &
Alysa Wall, Psychopathology and Competence to Stand Trial, 25 CRIM. JUST. & BEHAV. 443, 451 (1998) (reporting 46% of cases
recommended incompetent in a New York City sample); Cox & Zapf, supra note 66 (reporting 19% recommended clinically incompetent in an
Alabama sample); Robert E. Cochrane et al., The Relationship between Criminal Charges, Diagnoses, and Legal Opinions among Federal Pretrial
Defendants, 19 BEHAV. SCI. & L. 565 (2001) (reporting 18% recommended clinically incompetent in a United States federal sample).
129. Daniel C. Murrie et al., Clinician Variation in Findings of Competence to Stand Trial, 14 PSYCHOL. PUB. POL’Y & L. 177 (2008)
(reporting that 20% of 6,680 reports summarizing competence evaluations completed by 55 Virginia examiners recommended adjudications of
incompetence).
130. Id.
131. Id. at 183–85.
132. Gianni Pirelli et al., A Meta-Analytic Review of Competency to Stand Trial Research, 17 PSYCHOL. PUB. POL’Y & L. 1 (2011).
133. HENRY STEADMAN, BEATING A RAP?: DEFENDANTS FOUND INCOMPETENT TO STAND TRIAL (1979).
134. Id. at 30–33.
135. Id.
136. Steven K. Hoge et al., The MacArthur Adjudicative Competence Study: Development and Validation of a Research Instrument, 21 LAW
& HUM. BEHAV. 141 (1997).
137. A meta-analysis of 30 adjudicative competence studies found that 89.5% of study participants were men. Nicholson & Kugler, supra
note 127, at 358.
138. Norman G. Poythress et al., The Competence-Related Abilities of Women Criminal Defendants, 26 J. AM. ACAD. PSYCHIATRY &
L. 215 (1998).
139. Riley, supra note 128.
140. A clinical judgment that a defendant may be incompetent moves these more traditional issues to the fore. In jurisdictions requiring that
treatment for competence restoration be provided in the least restrictive appropriate setting, an examiner may also have to address the issue of
whether the defendant meets criteria for involuntary hospitalization—typically a “dangerousness” standard. See § 6.09(c).
141. Norman G. Poythress & Harley Stock, Competency to Stand Trial: A Historical Review and Some New Data, 8 J. PSYCHIATRY & L.
131 (1980).
142. Douglas Mossman et al., Quantifying the Accuracy of Forensic Examiners in the Absence of a “Gold Standard,” 34 LAW & HUM.
BEHAV. 402 (2009); Barry Rosenfeld & Kerri Ritchie, Competence to Stand Trial: Clinician Reliability and the Role of Offense Severity, 43 J.

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FORENSIC SCI. 151 (1998); LABORATORY OF COMMUNITY PSYCHIATRY, supra note 119; Stephen L. Golding et al., Assessment
and Conceptualization of Competency to Stand Trial: Preliminary Data on the Interdisciplinary Fitness Interview, 8 LAW & HUM. BEHAV.
321 (1984); Ronald Roesch, Determining Competency to Stand Trial: An Examination of Evaluation Procedures in an Institutional Setting, 47 J.
CONSULTING & CLINICAL PSYCHOL. 542 (1979).
143. ROESCH & GOLDING, supra note 53, at 188–91; Ronald Roesch, A Brief, Immediate Screening Interview to Determine Competency
to Stand Trial: A Feasibility Study, 5 CRIM. JUST. & BEHAV. 241 (1978).
144. Stephen L. Golding et al., Assessment and Conceptualization of Competency to Stand Trial: Preliminary Data on the Interdisciplinary
Fitness Interview, 8 LAW & HUM. BEHAV. 321 (1984).
145. W. Neil Gowensmith et al., Field Reliability of Competence to Stand Trial Opinions: How Often Do Evaluators Agree, and What Do
Judges Decide When Evaluators Disagree? 36 LAW & HUM. BEHAV. 130, 134 (Table 1) (2012) (in a three-examiner context, all three agreed
in 71% of initial competence evaluations; in a two-examiner context, agreement of 81% in initial competence evaluations); Richard Robinson &
Marvin Acklin, Fitness in Paradise: Quality of Forensic Reports Submitted to the Hawaii Judiciary, 33 INT’L J.L. & PSYCHIATRY 131 (2010)
(in 35 of 50 cases, all three examiners offered similar opinions regarding the defendant’s competence, reflecting a moderate legal of agreement
[kappa = .56]).
146. Jennifer L. Skeem et al., Logic and Reliability of Evaluations of Competence to Stand Trial, 22 LAW & HUM. BEHAV. 519 (1998).
147. Mossman et al., supra note 142.
148. Morris et al., supra note 14, at 213–15.
149. Id. at 223–24.
150. Annette Christy, Eva R. Kimonis & Randy K. Otto, Content and Quality of Competence to Proceed Evaluations in Florida: A Survey
(unpublished manuscript, University of South Florida, 2010).
151. Robinson & Acklin, supra note 145.
152. Id. at 131.
153. See, e.g., ROESCH & GOLDING, supra note 53, at 188–91; Roesch, supra note 143.
154. See Golding et al., supra note 144.
155. See MELTON ET AL., supra note 59, at 11–12; Russell C. Petrella & Norman G. Poythress, The Quality of Forensic Examinations:
An Interdisciplinary Study, 51 J. CONSULTING & CLINICAL PSYCHOL. 76 (1983).
156. A. Louis McGarry, Competence for Trial and Due Process Via the State Hospital, 122 AM. J. PSYCHIATRY 623 (1965) (reporting a
perfect correlation between diagnosis of psychosis and opinion of “incompetent” [31 cases] and nonpsychotic diagnosis and opinion of
“competent” [75 cases]).
157. Robert A. Nicholson & William G. Johnson, Prediction of Competency to Stand Trial: Contribution of Demographics, Type of Offenses,
Clinical Characteristics and Psycholegal Ability, 14 INT’L J.L. & PSYCHIATRY 287 (1991) (finding that 43% of the variance in clinicians’
judgments was explained, with diagnoses of psychoses [5%] and scores on the Georgia Court Competency Test [7%] accounting for
independent components of variance). See also A.E. Daniel et al., Factors Correlated with Psychiatric Recommendations of Incompetence, 12 J.
PSYCHIATRY & L. 527 (1984) (finding that clinicians’ judgments correlated .40 with total scores on the Competency Screening Test;
however, these scores did not survive as an independent predictor in the discriminant function analysis, suggesting that clinicians might have
given greater weight to diagnosis and symptoms than to impairment in functional legal abilities).
158. Nicholson & Kugler, supra note 127.
159. Mossman et al., supra note 142, at 410 (Table 4) (showing areas under receiver operating characteristic curve well above .90).
160. See, e.g., LABORATORY OF COMMUNITY PSYCHIATRY, supra note 119, at 100; ROESCH & GOLDING, supra note 53, at
188–91; Golding et al., supra note 144. See also Poythress & Stock, supra note 141; Roesch, supra note 143.
161. See generally MELTON ET AL., supra note 59, ch. 4.
162. GRISSO, supra note 23.
163. Kathleen Powers Stafford & Martin Sellbom, Assessment of Competence to Stand Trial, in 11 HANDBOOK OF PSYCHOLOGY:
FORENSIC PSYCHOLOGY 412 (Randy K. Otto ed., 2d ed. 2013).
164. Patricia A. Zapf et al., Assessing Competency to Stand Trial, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 281 (Irving B.
Weiner & Randy K. Otto eds., 4th ed. 2014).
165. Marvin W. Acklin, The Forensic Clinician’s Toolbox I: A Review of Competency to Stand Trial (CST) Instruments, 94 J.
PERSONALITY ASSESSMENT 220 (2012).
166. Competence screening evaluations are widely used in Massachusetts, for example, although the instruments used for such screening use
semistructured formats rather than the screening tools described here. Ira K. Packer (personal communication, April 2005).
167. Paul Lipsitt et al., Competency for Trial: A Screening Instrument, 128 AM. J. PSYCHIATRY 105 (1971). The scoring manual is
provided in LABORATORY OF COMMUNITY PSYCHIATRY, supra note 119, at 75–88.

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 168. Id. at 91.
169. Lipsitt et al., supra note 167, at 107.
170. The usual false-negative rate found in the studies is below 7% and ranges as low as 0%. The exception is a study by Roesch and
Golding, which obtained a false-negative rate of 23.8%. ROESCH & GOLDING, supra note 53, at 181–83.
171. Samuel J. Brakel, Presumption, Bias, and Incompetency in the Criminal Process, 1974 WIS. L. REV. 1105, 1118–19 (1974).
172. Robert A. Nicholson et al., Instruments for Assessing Competency to Stand Trial: How Do They Work?, 19 PROF. PSYCHOL.: RES. &
PRAC. 383 (1988). See also Karen L. Ustad et al., Restoration of Competency to Stand Trial: Assessment with the Georgia Court Competency
Test and the Competency Screening Test, 20 LAW & HUM. BEHAV. 131 (1996).
173. Robert W. Wildman II et al., The Georgia Court Competency Test: An Attempt to Develop a Rapid, Quantitative Measure of Fitness for
Trial (unpublished manuscript, Forensic Services Division, Central State Hospital, Milledgeville, GA).
174. GRISSO, supra note 23, at 116–17.
175. Nicholson et al., supra note 172, at 391–392.
176. Id. at 391–92; Ustad et al., supra note 172, at 143.
177. Robert A. Nicholson, Defining and Assessing Competency to Stand Trial (paper presented at the meeting of the American Psychological
Association, Washington, DC, 1992).
178. George W. Barnard et al., Competency to Stand Trial: Description and Initial Evaluation of a New Computer-Assisted Assessment Tool
(CADCOMP), 19 BULL. AM. ACAD. PSYCHIATRY & L. 367 (1991).
179. Id. at 373.
180. Ames Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 AM. J. PSYCHIATRY 616 (1965).
181. Barry A. Bukatman et al., What Is Competency to Stand Trial?, 127 AM. J. PSYCHIATRY 145 (1971).
182. LABORATORY OF COMMUNITY PSYCHIATRY, supra note 119, at 98–116.
183. Id. at 100.
184. Id. at 98–125.
185. Indeed, some states have tailored their evaluation procedures after the CAI, adopting in whole or in part the functions on the CAI
rating form as criteria for examiners to address in their reports. See, e.g., FLA. R. CRIM. P. 3.211.
186. RONALD ROESCH ET AL., FITNESS INTERVIEW TEST—REVISED: A STRUCTURED INTERVIEW FOR
ASSESSING COMPETENCY TO STAND TRIAL (2006).
187. See, e.g., Jodi Viljoen et al., Interrater Reliability of the Fitness Interview Test across 4 Professional Groups, 47 CAN. J. PSYCHIATRY
945 (2002); Jodi L. Viljoen et al., Assessing Adolescent Defendants’ Adjudicative Competence: Interrater Reliability and Factor Structure of the
Fitness Interview Test—Revised, 33 CRIM. JUST. & BEHAV. 467 (2006). For a general review of the FIT-R, see Gregory DeClue, Fitness
Interview Test—Revised: A Structured Interview for Assessing Competency to Stand Trial, 34 J. PSYCHIATRY & L. 371 (2006).
188. Stephen L. Golding & Ronald Roesch, Interdisciplinary Fitness Interview Training Manual (unpublished manuscript, 1981). The
manual for the IFI-R is available at http://www.concept-ce.com/wp-content/uploads/2013/09/IFI-Training-Manual.pdf (accessed Oct. 26,
2016).
189. Golding et al., supra note 144.
190. Id.
191. Furthermore, the process could be potentially unwieldy in some states (such as Florida) that permit both the defense attorney and the
prosecutor to be present to observe competence evaluations.
192. STEPHEN L. GOLDING, INTERDISCIPLINARY FITNESS INTERVIEW—REVISED: A TRAINING MANUAL (1993).
193. Stephen L. Golding (personal communication).
194. NORMAN G. POYTHRESS ET AL., PROFESSIONAL MANUAL FOR THE MACARTHUR COMPETENCE
ASSESSMENT TOOL—CRIMINAL ADJUDICATION (1999). See also Randy K. Otto et al., Psychometric Properties of the MacArthur
Competence Assessment Tool—Criminal Adjudication, 10 PSYCHOL. ASSESSMENT 435 (1998).
195. See generally POYTHRESS ET AL., supra note 125.
196. Factor-analytic research using data from the validation sample suggested that while a three-factor model that corresponded to the three
MacCAT-CA measures provided a reasonably good fit for the data, a modified model provided a better fit. See Patricia A. Zapf et al., Factor
Structure and Validity of the MacArthur Competence Assessment Tool—Criminal Adjudication, 17 PSYCHOL. ASSESSMENT 433 (2005).
197. See Chapter 11, especially § 11.03(a)(2).
198. The Evaluation of Competency to Stand Trial—Revised (ECST-R), discussed next, also includes a disclose-and-test capacity, although
the disclosures are not standardized.
199. Poythress et al., supra note 120, at 443, 446.
200. Richard Rogers et al., Recent Interview-Based Measures of Competency to Stand Trial: A Critical Review Augmented with Research Data,

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19 BEHAV. SCI. & L. 503, 512 (2001) (reporting interrater reliability for Appreciation = .92).
201. Otto et al., supra note 194, at 438–439. A subsequent study by other researchers reports high correlations between participants’
performance on the FIT-R and the MacCAT-CA, which is another confirmation of the tool’s validity. Patricia Zapf & Ronald Roesch, An
Investigation of the Construct of Competence: A Comparison of the FIT, the MacCAT-CA, and the MacCAT-T, 29 LAW & HUM. BEHAV. 229
(2005).
202. POYTHRESS ET AL., supra note 194, at 18–20.
203. Douglas Mossman, Conceptualizing and Characterizing Accuracy in Assessments of Competence to Stand Trial, 36 J. AM. ACAD.
PSYCHIATRY & L. 340, 344–47 (2008) (reporting that the areas under the receiver operating characteristic curve for the three indices are
.74–.76).
204. Gregory Declue, Toward a Two-Stage Model for Assessing Adjudicative Competence, 30 J. PSYCHIATRY & L. 305 (2003).
205. See Rogers et al., supra note 200; Patricia A. Zapf & Jodi L. Viljoen, Issues and Considerations Regarding the Use of Assessment
Instruments in the Evaluation of Competency to Stand Trial, 21 BEHAV. SCI. & L. 351 (2003).
206. See Rogers et al., supra note 200.
207. Debra A. Pinals et al., Practical Application of the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA) in a
Public Sector Forensic Setting, 34 J. AM. ACAD. PSYCHIATRY & L. 179, 182 (2006). Because of these limitations, Pinals and colleagues
conclude that the MacCAT-CA “would be a useful adjunct” in competence assessments. Also, they believe that using the MacCAT-CA
“provided assistance as a training tool. Trainees of all disciplines can read the test booklet and manual to understand better the aspects of
assessing competence to stand trial and the development of research in this area.” Id. at 187.
208. For discussions that summarize some of the postpublication research on the MacCAT-CA (along with references to several original
articles describing this research), see Denise L. Mumley et al., Five Year Research Update (1996–2000): Evaluations for Competence to Stand
Trial (Adjudicative Competence), 21 BEHAV. SCI. & LAW 329 (2003), and Michael H. Fogel et al., Ten Year Research Update (2001–2010):
Evaluations for Competence to Stand Trial (Adjudicative Competence), 31 BEHAV. SCI. & L. 165 (2013).
209. RICHARD ROGERS ET AL., PROFESSIONAL MANUAL FOR THE ECST-R. EVALUATION OF COMPETENCY TO
STAND TRIAL—REVISED (2004).
210. Id. at 122.
211. Id. at 15.
212. For RAC items, separate clinical judgments are made regarding self-defeating motivations that may be present.
213. T-scores are a statistical conversion technique that allows the raw score from each measure to be interpreted on a single scale with a
common metric.
214. ROGERS ET AL., supra note 209, at 154–55 (app. B1).
215. Id., ch. 4 (Tables 4.4, 4.5, and 4.6).
216. Id. at 28.
217. Richard Rogers et al., Assessing Dimensions of Competency to Stand Trial: Construct Validation of the ECST-R, 10 ASSESSMENT 344,
350 (2003).
218. ROGERS ET AL., supra note 209, at 136–138.
219. For references to research developed by the ECST-R’s authors, see Fogel et al., supra note 208, at 186–90. For research by others, see
Kerri A. Norton & Nancy L. Ryba, An Investigation of the ECST-R as a Measure of Competence and Feigning, 10 J. FORENSIC PSYCHOL.
PRAC. 91 (2010), and Rachael E. Springman & Brian R. Vandenberg, The Effects of Test-Strategy Coaching on Measures of Competency to
Stand Trial, 9 J. FORENSIC PSYCHOL. PRAC. 179 (2009).
220. Id. at 43.
221. 23 FLA. STAT. ANN. §§ 916.115(1)(c), 916.301(5).
222. CAROLINE J. EVERINGTON & RUTH LUCKASSON, MANUAL FOR COMPETENCE ASSESSMENT FOR
STANDING TRIAL FOR DEFENDANTS WITH MENTAL RETARDATION (1992).
223. Caroline T. Everington, The Competence Assessment for Standing Trial for Defendants with Mental Retardation, 17 CRIM. JUST. &
BEHAV. 147, 148 (1990).
224. Id.
225. Id.
226. EVERINGTON & LUCKASSON, supra note 222, at 21.
227. Id. at 23.
228. Id. at 23 (Table 3), 31.
229. Id. at 24. Discriminant analysis yielded classification accuracy rates of 100%, 83%, and 83% for sections I, II, and III, respectively. Id.
230. See Caroline Everington & Charles Dunn, A Second Validation Study of the Competence Assessment for Standing Trial for Defendants

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with Mental Retardation, 22 CRIM. JUST. & BEHAV. 44 (1995). An unpublished study of 49 defendants with intellectual disabilities referred
for competence evaluation reported excellent internal consistency for sections I–III (Cronbach’s alphas = .93, .83, and .85, respectively) and for
the Total score (alpha = .95). Steven Simon & Candyce Sparks, Revising the Psychometric Properties of the Competence Assessment for Standing
Trial for Defendants with Mental Retardation (CAST-MR) (paper presented at the Biennial Conference of the American Psychology–Law
Society, Austin, TX, 2002).
231. EVERINGTON & LUCKASSON, supra note 222, at 21–22.
232. Id. at 18–19.
233. GRISSO, supra note 23, at 111.
234. Caroline Everington et al., Can Defendants with Mental Retardation Successfully Fake Their Performance on a Test of Competence to
Stand Trial?, 25 BEHAV. SCI. & L. 545 (2007).
235. THOMAS GRISSO, FORENSIC EVALUATION OF JUVENILES (2d ed. 2013).
236. See generally Richard J. Bonnie & Thomas Grisso, Adjudicative Competence of Youthful Offenders, in YOUTH ON TRIAL: A
DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE (Richard Bonnie & Robert Schwartz eds., 2000).
237. For example, forensic examiners in Florida are instructed, in cases in which they believe a juvenile might be incompetent, to report
specifically on “the mental illness, intellectual disability, or mental age causing incompetence.” FLA. R. CRIM. P. 8.095 (d)(2)(A) (emphasis
added). A related statute dealing with the disposition of incompetent youth acknowledges that juveniles may be adjudicated incompetent due to
mental illness, intellectual disability, or “because of age or immaturity, or for any reason other than for mental illness, intellectual disability, or
autism.” FLA. STAT. 985.19(h)(2). Similarly, Ohio allows for a determination of incompetence to proceed “due to mental illness, due to
developmental disability, or otherwise due to a lack of mental capacity.” OHIO REV. CODE ANN. § 2152.51(A)(1).
238. Virginia by statute, and at least two other states (Alabama and Michigan) by case law, indicate that adjudicative competence should be
taken into account in transfer hearings. Bonnie & Grisso, supra note 236, at 85.
239. See Barry C. Feld, Legislative Exclusion of Offenses from Juvenile Court Jurisdiction: A History and Critique, in THE CHANGING
BORDERS OF JUVENILE JUSTICE: TRANSFER OF ADOLESCENTS TO THE CRIMINAL COURT (Jeffrey Fagan & Frank E.
Zimring eds., 2000).
240. See, e.g., Dana Royce Baerger et al., Competency to Stand Trial in Preadjudicated and Petitioned Juvenile Defendants, 31 J. AM. ACAD.
PSYCHIATRY & L. 314 (2003); Eraka Bath et al., Competency to Stand Trial among Youths Admitted to a Juvenile Mental Health Court, 43 J.
AM. ACAD. PSYCHIATRY & L. 329 (2016); Debra K. Cooper, Juveniles’ Understanding of Trial-Related Information: Are They Competent
Defendants?, 15 BEHAV. SCI. & L. 167 (1997); Vincent Cowden & Geoffrey McKee, Competency to Stand Trial in Juvenile Delinquency
Proceedings: Cognitive Maturity and the Attorney–Client Relationship, 33 J. FAM. L. 629 (1995); Susan L. Ficke et al., The Performance of
Incarcerated Juveniles on the MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA), 34 J. AM. ACAD.
PSYCHIATRY & L. 360 (2006); Geoffrey McKee, Competency to Stand Trial in Preadjudicatory Juveniles and Adults, 26 J. AM. ACAD.
PSYCHIATRY & L. 89 (1998); Geoffrey McKee & Steven Shea, Competency to Stand Trial in Family Court: Characteristics of Competent and
Incompetent Juveniles, 27 J. AM. ACAD. PSYCHIATRY & L. 65 (1999); J.C. Savitsky & D. Karras, Competency to Stand Trial among
Adolescents, 74 ADOLESCENCE 349 (1984).
241. Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27
LAW & HUM. BEHAV. 333 (2003).
242. See, e.g., Charles E. Frazier et al., Get-Tough Juvenile Justice Reforms: The Florida Experience, 564 ANNALS AM. ACAD. POL. &
SOC. SCI. 167, at 168, 173 (Table 2) (1999).
243. See studies cited supra note 240.
244. THOMAS GRISSO, EVALUATING JUVENILES’ ADJUDICATIVE COMPETENCE: A GUIDE FOR CLINICAL
PRACTICE (2005).
245. Jenna Tomei, The Juvenile Adjudicative Competence Interview (JACI): Current Usage in Juvenile Competence to Stand Trial Evaluations
(unpublished master’s thesis, California State University, Fullerton, 2012).
246. One study reported that attorneys’ doubts regarding their clients’ competence are often related to perceptions of “personality problems”
or “mental confusion.” Hoge et al., supra note 120, at 389. In another study, attorneys reported that perceived low intellectual functioning or
“mental confusion” were bases for doubting their clients’ competence. Poythress et al., supra note 120, at 445.
247. The 2007 edition of this text stated that these elements and use of a competence assessment instrument “should be included in any
assessment” of adjudicative competence. We now say “should be included, if possible,” to reflect the fact that some defendants for whom courts
need competence reports are too psychotic or agitated to understand (or even listen to) notification, or to tolerate much of any exploration of
their understanding, reasoning, and appreciation.
248. For a general description of the test from which the results described in the text were taken, see MELTON ET AL., supra note 59, ch.
3.

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 249. Mossman et al., supra note 14, at S36.
250. See, e.g., Buchanan v. Kentucky, 483 U.S. 402, 423–24 (1987) (allowing prosecution to introduce evidence from a competence
evaluation to rebut the defendant’s mental state defense); Kansas v. Cheever, 134 S. Ct. 596, 600–01 (2013) (reaffirming Buchanan and
allowing prosecution to offer evidence from court-ordered psychological examination so as to avoid “allowing a defendant to provide the jury,
through an expert operating as proxy, with a one-sided and potentially inaccurate view of his mental state at the time of the alleged crime”). For
this reason, some states permit a defendant to refuse to answer questions during a competence examination.
251. People v. Robinson, 61 Cal. Rptr. 2d 587 (Cal. Ct. App. 1997); People v. Kashney, 472 N.E.2d 164 (Ill. App. Ct. 1984); People v.
Pokovich, 15 Cal. Rptr. 3d 503 (Cal. Ct. App. 2004).
252. People v. Jablonski, 126 P.3d 938 (Cal. 2006).
253. Mossman et al., supra note 14, at S36. The quoted material refers to psychiatrists because the AAPL Practice Guideline is focused
primarily on its members, all of whom are psychiatrists. Yet the guideline also expressly directs itself toward “other clinicians who are working in
a forensic role in conducting evaluations and providing opinions related to competence to stand trial.” Id. at S3.
254. It is important to point out that most psychologists do not routinely use any of these tools when conducting competence evaluations. In
a survey of 86 forensic psychologists who conducted competence evaluations, the overwhelming majority reported using no competence
assessment tools on regular basis. See Robert P. Archer at al., A Survey of Psychological Test Use Patterns among Forensic Psychologists, 97 J.
PERSONALITY ASSESSMENT 84 (2006). Similar data were reported by Ryba and colleagues who surveyed a sample of 82 psychologists
who conducted juvenile competence evaluations. See Nancy L. Ryba et al., Juvenile Competence to Stand Trial Evaluations: A Survey of Current
Practices and Test Usage among Psychologists, 34 PROF. PSYCHOLOGY: RES. & PRAC. 449 (2003). We assume that these numbers would
be similar, or even lower, for psychiatrists.
255. Indeed, in some jurisdictions the law mandates that evaluation reports deal with this issue. See, e.g., FLA. R. CRIM. P. 3.210(b)(1),
which requires that mental health experts who opine that the defendant may be incompetent to proceed “shall report on . . . the treatment or
treatments appropriate . . . , the availability of acceptable treatment . . . , the likelihood of the defendant attaining competence, [and] . . . the
probable duration of the treatment required to restore competence.”
256. See, e.g., FLA. R. CRIM. P. 3.212(c)(3)(i). Although the requirement that an incompetent person meet commitment criteria before
inpatient care can take place is a well-intentioned attempt to prevent unnecessary deprivations of liberty, it can result in inappropriate
placement. A certain proportion of those found incompetent do not meet commitment criteria, yet may nonetheless require inpatient
hospitalization to be restored. This group will be disserved by rules that, like Florida’s, prevent such hospitalization.
257. For reviews and discussion of these studies, see Robert A. Nicholson & John L. McNulty, Outcome of Hospitalization for Defendants
Found Incompetent to Stand Trial, 10 BEHAV. SCI. & L. 371 (1992), and Douglas Mossman, Predicting Restorability of Incompetent Criminal
Defendants, 35 J. AM. ACAD. PSYCHIATRY & L. 34, 35 (2007).
258. Douglas R. Morris & Nathaniel J. DeYoung, Long-Term Competence Restoration, 42 J. AM. ACAD. PSYCHIATRY & L. 81, 82
(2014) (summarizing other studies and reporting similar findings).
259. For reviews, see Charles L. Scott, Commentary: A Road Map for Research in the Restoration of Competency to Stand Trial, 31 J. AM.
ACAD. PSYCHIATRY & L. 36 (2003); Mossman et al., supra note 14, at S55–S58; Patricia Zapf, Standardizing Protocols for Treatment to
Restore Competency to Stand Trial: Interventions and Clinically Appropriate Time Periods (Document No. 13-01-1901, Jan. 2013), available at
http://www.wsipp.wa.gov/Reports.
260. In addition to the data in Table 6.6, see Zapf, supra note 259, at 2–3 (summarizing Washington state data from 2010; most defendants
restored within 90 days).
261. Shawn D. Anderson & Jay Hewitt, The Effect of Competency Restoration Training on Defendants with Mental Retardation Found Not
Competent to Proceed, 26 LAW & HUM. BEHAV. 343 (2002); Taiping Ho, Examination of Racial Disparity in Competency to Stand Trial
between White and African American Retarded Defendants, 29 J. BLACK STUDIES 771 (1999); Barry W. Wall et al., Restoration of
Competency to Stand Trial: A Training Program for Persons with Mental Retardation, 31 J. AM. ACAD. PSYCHIATRY & L. 189 (2003). All
these studies involved small samples of defendants with intellectual disabilities. Another small study suggests that specialized methods may have
more success. Barry W. Wall & Paul P. Christopher, A Training Program for Defendants with Intellectual Disabilities Who Are Found
Incompetent to Stand Trial, 40 J. AM. ACAD. PSYCHIATRY & L. 366, 370 (2012) (11 of 18 [61%] defendants restored with the “Slater
Method” designed for persons with intellectual disabilities, versus 2 of 12 [17%] restored via traditional methods).
262. 193 F.R.D. 175 (2000).
263. Id. at 191. For a discussion of the implications of this case for forensic hospital clinicians, see Norman G. Poythress & Dennis B. Feld,
“Competence Restored”—What Forensic Hospital Reports Should (and Should Not) Say When Returning Defendants to Court, 2 J. FORENSIC
PSYCHOL. PRAC. 51 (2002).
264. Thomas G. Gutheil, A Confusion of Tongues: Competence, Insanity, Psychiatry, and the Law, 50 PSYCHIATRIC SERV. 767 (1999).

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Chapter 7

1. See generally Hawaii v. Standard Oil, 405 U.S. 251 (1972).

2. See generally JOHN STUART MILL, O. LIBERTY (1859).
3. See Note, Civil Commitment of the Mentally Ill: Developments in the Law, 87 HARV. L. REV. 1190, 1217–18 (1974) (describing the
“threshold requirement of incapacity” for exercise of the parens patriae authority).
4. 509 U.S. 389 (1993).
5. U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated . . . ”).
6. Wong Sun v. United States, 371 U.S. 471 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
7. See generally CHARLES WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF
CASES AND CONCEPTS §§ 12.02, 12.04 (6th ed. 2015).
8. Florida v. Rodriguez, 469 U.S. 1 (1984) (finding that a person’s agreement to follow an officer to where the person’s colleagues were being
questioned by another officer “as clearly the sort of consensual encounter that implicates no Fourth Amendment interest”).
9. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
10. Dorothy Kagehiro, Perceived Voluntariness of Consent to Warrantless Police Searches, 18 J. APPLIED SOC. PSYCHOL. 38 (1988). See
also James Wulach, Psychological Evaluation of the Consent to Search, 18 PSYCHIATRY & L. 319 (1990). Subsequent research has examined
these issues in the context of current police practices, which include use of consent forms. See Nancy Leong & Kira Suyeishi, Consent Forms and
Consent Formalism, 2013 WIS. L. REV. 751, 753 (2013) (finding that “the existence of a consent form may do relatively little to ensure that
consent is rendered voluntarily,” and that “in virtually every case where there is a consent form, courts ultimately find that the consent was
voluntary”).
11. Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the “Consensual” Police–Citizen Encounter (1999)
(unpublished Ph.D. dissertation, Rutgers University), described in Steven L. Chanenson, Get the Facts, Jack!: Empirical Research and the
Changing Constitutional Landscape of Consent Searches, 71 TENN. L. REV. 399, 451–55 (2004).
12. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153, 211 (2002).
13. For a more comprehensive review of the law of confessions, see generally WHITEBREAD & SLOBOGIN, supra note 7, ch. 16.
14. 297 U.S. 278 (1936).
15. For a listing of these cases through the late 1950s, see Spano v. New York, 360 U.S. 315 n. 2 (1959).
16. See Fikes v. Alabama, 352 U.S. 191, 197(1957). But cf. Yale Kamisar, What Is an “Involuntary” Confession?: Some Comments on Inbau
and Reid’s Criminal Interrogation and Confessions, 17 RUTGERS L. REV. 728, at 755–59 (1963) (the Supreme Court actually rarely directly
analyzed the willfulness of the defendant’s confession).
17. Ashcraft v. Tennessee, 322 U.S. 143 (1944).
18. Haynes v. Washington, 373 U.S. 1336 (1963).
19. Lynum v. Illinois, 372 U.S. 528 (1963).
20. Beecher v. Alabama, 408 U.S. 234 (1972).
21. See Escobedo v. Illinois, 378 U.S. 478 (1964); Massiah v. United States, 377 U.S. 201 (1964).
22. 384 U.S. 436 (1965).
23. The continuing viability of the due process voluntariness approach is discussed below in the text. The Supreme Court resurrected Sixth
Amendment analysis in Brewer v. Williams, 430 U.S. 387 (1977). See Yale Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is
Interrogation? When Does It Matter?, 67 GEO. L. REV. 1 (1978). That analysis remains important in those cases in which defendants have
been formally charged (an event that usually takes place at least 24–48 hours after arrest) and the government deliberately elicits information
from the accused. In such circumstances, defendants must knowingly and voluntarily waive their Sixth Amendment right—an inquiry in most
respects identical to waiver analysis under Miranda. See WHITEBREAD & SLOBOGIN, supra note 7, § 16.04(c).
24. 384 U.S. at 444. As subsequent discussion in the text indicates, however, confessions obtained in violation of this rule may still be
admissible under certain circumstances.
25. 384 U.S. at 444.
26. Id. at 444–45.
27. See id. at 455–57. See also Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Currently available instructional texts on the use of such
ploys include FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS (5th ed. 2011) and FRED E. INBAU
ET AL., ESSENTIALS OF THE REID TECHNIQUE: CRIMINAL INTERROGATION AND CONFESSIONS (2013).
28. See Spano v. New York, 360 U.S. 315, 326 (1959) (Douglas, J., concurring).
29. For an eloquent critique of this body of law, see Kamisar, supra note 23.

969
 30. The one exception to this statement is when a defendant asks for an attorney. In such cases, the Court has adopted another per se rule
providing that unless the defendant initiates contact, the police are forbidden to talk to the defendant until an attorney is present. Edwards v.
Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi, 498 U.S. 146 (1990).
31. Dickerson v. United States, 530 U.S. 428 (2000).
32. Pennsylvania v. Muniz, 496 U.S. 582 (1990) (booking exception); New York v. Quarles, 467 U.S. 649 (1984) (public safety exception);
Oregon v. Hass, 420 U.S. 714 (1975) (impeachment exception); Harris v. New York, 401 U.S. 222 (1971) (impeachment exception).
33. Beckwith v. United States, 425 U.S. 341 (1976).
34. Berkemer v. McCarty, 468 U.S. 420 (1984).
35. Oregon v. Mathiason, 429 U.S. 492 (1977); California v. Beheler, 463 U.S. 1121 (1983).
36. See Oregon v. Elstad, 470 U.S. 298, 309 (1985).
37. 384 U.S. at 478–79.
38. Illinois v. Perkins, 496 U.S. 292 (1990).
39. North Carolina v. Butler, 441 U.S. 369 (1979); Connecticut v. Barrett, 479 U.S. 523 (1987).
40. Colorado v. Spring, 479 U.S. 564 (1987).
41. Moran v. Burbine, 475 U.S. 412 (1986).
42. The consensus may not be as universal as one would expect, however. A case decided shortly after Miranda is illustrative. In Davis v.
North Carolina, 384 U.S. 737 (1966), Davis, accused of rape and murder, confessed after being held incommunicado for 16 days and being fed
a diet of two sandwiches and peanuts daily (he lost 15 pounds during this period). At one point, he was required to walk 14 miles to disprove an
alibi. Each of the lower courts through the Fourth Circuit held Davis’s confession to be voluntary, as did two Supreme Court Justices (Clark and
Harlan).
43. See Miranda v. Arizona, 384 U.S. at 515 (Harlan, J., dissenting).
44. 446 U.S. 291 (1980).
45. See, e.g., Miller v. Fenton, 796 F.2d 598 (3d Cir. 1986) (waiver valid despite facts that detective exaggerated evidence against defendant,
lied about whether victim was dead, and promised psychiatric help if defendant confessed); United States v. Velasquez 885 F.2d 1076 (3d Cir.
1989) (waiver valid despite false statement about codefendant’s confession); State v. Braun, 509 P.2d 742 (Iowa 1973) (same). See generally Paul
Marcus, It’s Not Just about Miranda: Determining the Voluntariness of Confessions in Criminal Prosecutions, 40 VAL. U. L. REV. 6601, 619–21
(2006) (describing how courts have analyzed threats, promises, and other police techniques).
46. See, e.g., Reck v. Pate, 367 U.S. 433 (1961) (intellectual disability and physical illness); Blackburn v. Alabama, 361 U.S. 199 (1969)
(history of mental illness); Fikes v. Alabama, 352 U.S. 191 (1957) (schizophrenia and high suggestibility); Townsend v. Sain, 372 U.S. 392
(1963) (administration of truth serum).
47. See, e.g., Martin v. Mississippi, 871 So. 2d 693 (Miss. Sup. Ct. 2004) (a murder defendant’s IQ of 60 was not enough to require a finding
that he was incapable of making a voluntary waiver of his Miranda rights); Nebraska v. Smith, 494 N.W.2d 558 (Neb. 1993) (a person with low
intelligence and posttraumatic stress disorder symptoms made a valid waiver); Nebraska v. Melton, 478 N.W.2d 341 (Neb. 1992) (waiver was
knowing, intelligent, and voluntary, despite fact that the day after confession, the suspect was signed into a regional psychiatric treatment
center); Louisiana v. Castille, 590 So. 2d 755 (La. Ct. App. 1991) (evidence of substance abuse at time of interrogation was insufficient to
render confession involuntary); State v. Osborne, 330 S.E.2d 447 (Ga. 1985) (lack of education and illiteracy were not bars to finding confession
voluntary); State v. Jenkins, 268 S.E.2d 458 (Va. 1980) (subnormal intelligence was not “necessarily dispositive”).
48. Russell Yates, Waiving Goodbye to Miranda: Better Protection for People with Mental Illness and Mental Retardation Is Better for Us All
(Mar. 19, 2012), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2080313 (finding that of the 42 federal appellate court
decisions since 2000 that addressed the admissibility of confessions from mentally disordered defendants, none excluded the confession). See,
e.g., Daoud v. State, 618 F.3d 525 (6th Cir. 2010) (overturning trial court exclusion of a confession, despite testimony from two of the three
state’s experts that the defendant’s mental illness undermined the validity of his waiver); Darnes v. Texas, 118 S.W.3d 916 (Tex. Ct. App.
2003); Wessling v. Indiana, 798 N.E.2d 929 (Ind. Ct. App. 2003). For examples of state cases where a confession by a person with mental
disability was suppressed, see Louisiana v. Raiford, 846 So. 2d 913 (La. Ct. App. 2003); Ohio v. Clemens, 2001 WL 301432 (Ohio Ct. App.
Mar. 23, 2001). Generally, as Perlin and colleagues have summarized it, statements will be excluded only when “the mental subnormality is so
great that an accused is incapable of understanding the meaning and effect of his confessions” (quoting Casias v. State, 452 S.W.2d 483, 488
[Tex. Crim. App. 1970]), or when the defendant’s mental illness is combined with other circumstances so that it is not the “product of an
essentially free and unconstrained choice by the maker” (quoting Jackson v. United States, 404 A.2d 911, 923 [D.C. App. 1979]); MICHAEL
PERLIN ET AL., COMPETENCE IN THE LAW: FROM LEGAL THEORY TO CLINICAL APPLICATION 80 (2012).
49. 479 U.S. 157 (1986).
50. Id. at 162.
51. Id. at 167.

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 52. Id.
53. See, e.g., FED. R. EVID. 401 (defining as relevant any evidence that tends to make the existence of any material fact “more probable or
less probable than it would be without the evidence”) and FED. R. EVID. 403 (excluding relevant evidence when its probative value is
“substantially outweighed by the danger of unfair prejudice . . . or misleading the jury”).
54. 479 U.S. at 170.
55. Richard Rogers et al., “Everyone Knows Their Miranda Rights”: Implicit Assumptions and Countervailing Evidence, 16 PSYCHOL. PUB.
POL’Y & L. 300 (2010).
56. Saul M. Kassin, The Social Psychology of False Confessions, 9 SOC. ISSUES & POL’Y REV. 25, 33–41 (2015).
57. WELSH S. WHITE, MIRANDA’S WANING PROTECTIONS 190–95, 201–14 (2001).
58. Anthony J. Domanico et al., Overcoming Miranda: A Content Analysis of the Miranda Portion of Police Interrogations, 49 IDAHO L.
REV. 1, 19–21 (2012).
59. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 28–30 (2010).
60. See generally Christopher Slobogin, Manipulation of Suspects and Unrecorded Questioning: After Fifty Years of Miranda Jurisprudence,
Still Two (or Maybe Three) Burning Questions, 97 B.U. L. REV. 1157 (2017).
61. Brian Cutler et al., Expert Testimony on Interrogation and False Confessions, 82 UMKC L. REV. 589, 590 (2014) (noting that courts in
over 30 states have permitted expert testimony about factors that create interrogation pressure and produce false confessions, although also
noting that not all courts have been receptive to such testimony).
62. See, e.g., GREGORY DECLUE, INTERROGATIONS AND DISPUTED CONFESSIONS: A MANUAL FOR FORENSIC
PSYCHOLOGICAL PRACTICE (2005); I. Bruce Frumkin, Competency to Waive Miranda Rights: Clinical and Legal Issues, 24 MENTAL
& PHYSICAL DISABILITY L. REP. 326 (2000); ALAN M. GOLDSTEIN & NAOMI S. GOLDSTEIN, EVALUATING CAPACITY
TO WAIVE MIRANDA RIGHTS (2010).
63. THOMAS GRISSO, JUVENILE WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE 84 (1981).
64. MALIN AKERSTROM, BETRAYAL AND BETRAYERS: THE SOCIOLOGY OF TREACHERY 71 (1991) (reporting that
“the inmates I interviewed all believed that silence during an interrogation was interpreted as guilt [and] that if the evidence was against them
anyway, keeping silent could get them a stiffer sentence than if they talked”).
65. Lawrence S. Leiken, Police Interrogation in Colorado: The Implementation of Miranda, 47 DENV. L. REV. 1, 15–16, 33 (1971) (45% of
suspects given the warnings mistakenly believe that oral statements may not be used against them). See also Rogers et al., supra note 55 (in a
survey of adult defendants and college students, finding that 52% believed “off-the-record” comments to be inadmissible; 30.2% believed that
once counsel is requested, questioning may continue until counsel arrives; 30% believed that silence could be used as evidence; 25.9% believed
that a waiver must be signed to be valid; and 12.8% believed that statements could be retracted).
66. Richard Rogers et al., An Analysis of Miranda Warnings and Waivers: Comprehension and Coverage, 31 LAW & HUM. BEHAV. 177
(2007).
67. GRISSO, supra note 63, at 83.
68. Leiken, supra note 65, at 20; Richard H. Seeburger & R. Stanton Wettick, Miranda in Pittsburgh: A Statistical Study, U. PITT. L. REV.
1, 26 (1967); Evelle J. Younger, Results of a Survey Conducted in the District Attorney’s Office of Los Angeles County Regarding the Effect of the
Miranda Decision upon the Prosecution of Felony Cases, 5 AM. CRIM. L.Q. 32 (1966); Project, Interrogations in New Haven: The Impact of
Miranda, 76 YALE L.J. 1521 (1967). But see Solomon M. Fulero & Caroline Everington, Assessing Competency to Waive Miranda Rights in
Defendants with Mental Retardation, 19 LAW & HUM. BEHAV. 533 (1995) (finding that people with intellectual disabilities did learn from
previous exposure to the system).
69. Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1160 (1980). See also
Heather Zell et al., Juveniles’ Miranda Comprehension: Understanding, Appreciation, and Totality of Circumstances Factors, 39 LAW & HUM.
BEHAV. 281, 288 (2015) (replicating Grisso’s research and stating that “[i]t appears that youths are at risk for miscomprehending the
warnings, even before they consider the warnings as whole statements, simply because the individual words in the warnings are too complex”).
Another study reported that youth interpreted the warning that “anything can and will be used against you in a court of law” to mean that “any
disrespectful words directed toward police would be reported to the judge.” Ellen R. Fulmer, Note, Novak v. Commonwealth: Are Virginia
Courts Providing a Special Protection to Virginia’s Juvenile Defendants?, 30 U. RICH. L. REV. 935, 956–57 (1996). See also Kaitlyn McLachlan
et al., Examining the Role of Interrogative Suggestibility of Miranda Rights Comprehension in Adolescents, 35 LAW & HUM. BEHAV. 165
(2011); Rona Abramovitch et al., Young Persons’ Comprehension of Waivers in Criminal Proceedings, 35 CAN. J. CRIMINOLOGY 309, 320
(1993).
70. Caroline Everington & Solomon Fulero, Competence to Confess: Measuring Understanding and Suggestibility of Defendants with Mental
Retardation, 37 MENTAL RETARDATION 212 (1999).
71. Morgan Cloud et al., Words without Meaning: The Constitution, Confessions, and Mentally Retarded Suspects, 69 U. CHI. L. REV. 495

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(2002); I. Bruce Frumkin et al., The Grisso Tests for Assessing Understanding and Appreciation of Miranda Warnings with a Forensic Sample, 27
BEHAV. SCI. & L. 673 (2007).
72. Id. at 536. For a critique of the Cloud et al. methodology, which nonetheless concludes the findings are “valid,” see Bruce Frumkin &
Alfredo Garcia, Psychological Evaluations and the Competency to Waive Miranda Rights, 27 CHAMPION 12, 17 (2003).
73. Jodi Viljoen et al., An Examination of the Relationship between Competency to Stand Trial, Competency to Waive Interrogation Rights, and
Psychopathology, 26 LAW & HUM. BEHAV. 481 (2002).
74. Richard Rogers et al., Knowing and Intelligent: A Study of Miranda Warnings in Mentally Disordered Defendants, 31 LAW & HUM.
BEHAV. 401, 408 (2007) (finding that only about 10% of those with mental disorders had a good understanding of their Miranda rights).
75. See, e.g., example of “confession” in § 8.06(a).
76. See supra notes 70–72.
77. GRISSO, supra note 63, ch. 5.
78. In a mail survey of the evaluation practices of 96 psychologists who perform competence evaluations, 44% (n = 42) indicated that they
used one or more of Grisso’s measures. Most frequently used were measures of intelligence (605), academic achievement (35%) and reading
(17%). Nancy L. Ryba et al., Evaluations of Capacity to Waive Miranda Rights: A Survey of Practitioners’ Use of the Grisso Instruments, 14
ASSESSMENT 300 (2007).
79. RICHARD ROGERS & DANIEL SHUMAN, FUNDAMENTALS OF FORENSIC PRACTICE: MENTAL HEALTH AND
CRIMINAL LAW (2005); Richard Rogers et al., A Critical Review of Published Competency-to-Confess Measures, 28 LAW & HUM.
BEHAV. 707 (2004). But see Thomas Grisso, Reply to “A Critical Review of Published Competency-to-Confess Measures,” 28 LAW & HUM.
BEHAV. 719 (2004) (responding to many of these criticisms).
80. NAOMI S. GOLDSTEIN ET AL., MIRANDA RIGHTS COMPREHENSION INSTRUMENT (2012).
81. I. Bruce Frumkin & Martin Sellbom, Miranda Rights Comprehension Instruments: A Critical Review, 20 ASSESSMENT 545 (2013).
82. RICHARD ROGERS ET AL., STANDARDIZED ASSESSMENT OF MIRANDA ABILITIES (2012).
83. See, e.g., Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature and Issues, 5 PSYCHOL.
SCI. PUB. INT. 33 (2004); and ROBERT PERSKE, UNEQUAL JUSTICE (1991), which recounts more than 25 cases involving people
with developmental disabilities charged with crimes.
84. See, e.g., Gisli H. Gudjonsson, THE GUDJONSSON SUGGESTIBILITY SCALE MANUAL, described in Gisli H. Gudjonsson,
Compliance in an Interrogative Situation: A New Scale of Interrogative Suggestibility, 5 PERSONALITY & INDIVIDUAL DIFFERENCES
303 (1984); Krishna K. Singh & Gisli H. Gudjonsson, The Internal Consistency of the “Shift” Factor on the Gudjonsson Suggestibility Scale, 8
PERSONALITY & INDIVIDUAL DIFFERENCES 265 (1987). Based on recall of a hypothetical situation in response to misleading
questions, the subject evaluated on this scale receives a “total suggestibility” score. While this score may discern individuals who are suggestible,
the Gudjonsson Suggestibility Scale is probably best used as a means of acquiring descriptive information about how people respond to
misleading questions. I. Bruce Frumkin, supra note 62, at 331.
85. Fulero & Everington, supra note 68, at 56–58.
86. Laurel Montagne, Children under Pressure: The Problem of Juvenile False Confessions and Potential Solutions, 41 W. ST. U. L. REV. 29
(2014) (describing several laboratory studies and concluding from them that “juveniles are extremely willing to comply with authority figures,
with or without false incriminating evidence”); Kassin & Gudjonsson, supra note 83; Gerald P. Koocher, Different Lenses: Psycho-Legal
Perspectives on Children’s Rights, 16 NOVA L. REV. 711, 716 (1992); Naomi E. Goldstein et al., Risk Factors for False Confessions in
Adolescent Offenders (address at the European Association of Psychology and Law Conference, Lisbon, Portugal, Jun. 2001), cited in Kimberly
Larson, Improving the “Kangaroo Courts”: A Proposal for Reform in Evaluating Juveniles’ Waiver of Miranda, 48 VILL. L. REV. 629, 657–58
(2003).
87. Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 PSYCHOL. PUB. POL’Y & L. 3, 16 (1997) (noting that
“younger adolescents were significantly more likely than adults to change their stories”); Matthew B. Johnson & Ronald C. Hunt, The
Psycholegal Interface in Juvenile Assessment of Miranda, 18 AM. J. FORENSIC PSYCHOL. 17, 29 (2000). See also Rachel Sutherland &
Harlene Hayne, Age-Related Changes in the Misinformation Effect, 79 J. EXPERIMENTAL CHILD PSYCHOL. 338, 338–404 (2001)
(children are more likely to incorporate false information into their stories).
88. Matthew B. Johnson & Ronald C. Hunt, The Psycholegal Interface in Juvenile Miranda Assessment, 18 AM. J. FORENSIC PSYCHOL.
17, 24 (2000) (noting compliance as a “tendency to go along with instructions and directions without actual acceptance of the premises”);
GISLI H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATIONS AND CONFESSIONS: A HANDBOOK 381 (2003)
(“[A]dolescents are clearly more responsive to negative feedback than adults. This suggests that they do not cope as well with interrogative
pressure as adults and it links this type of suggestibility with a social rather than an intellectual and memory process”); G. Richardson et al.,
Interrogative Suggestibility in an Adolescent Forensic Population, 18 J. ADOLESCENCE 211, 215 (1995).
89. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. & CRIMINOLOGY 621, 689 n. 288 (1996) (“In both England and

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America, researchers have uncovered numerous documented cases of false confessions to police . . . in response to psychological [as opposed to
physical] interrogation techniques”).
90. Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence, in THE PSYCHOLOGY OF EVIDENCE AND TRIAL
PROCEDURE 67 (Saul M. Kassin & Lawrence S. Wrightsman eds., 1985).
91. Gudjonsson has added to this category those who may be protecting the real offender. GISLI H. GUDJONSSON, THE
PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 227 (1992).
92. Kassin & Wrightsman, supra note 90.
93. Richard J. Ofshe, Coerced Confessions: The Logic of Seemingly Irrational Action, 6 CULTIC STUDIES J. 6 (1989). For an elaboration of
social psychology theories as to the circumstances under which innocent people are most likely to confess, see Richard J. Ofshe & Richard A.
Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979 (1997).
94. See literature cited in § 7.03(b)(3). For research on the suggestibility of children and those with intellectual disabilities, see § 7.07(b)(2).
95. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW & HUM. BEHAV. 3, 16–22 (2010).
96. Melissa B. Russano et al., Investigating True and False Confessions with a Novel Experimental Paradigm, 16 PSYCHOL. SCI. 481 (2006)
(finding that maximization and minimization techniques raised the false confession rate from 6% when no techniques were used to 14% and
18%, respectively).
97. See Kassin et al., supra note 95; Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in a Post-DNA World, 82 N.C. L.
REV. 891 (2004) (reporting 125 cases purportedly involving confessions proven false through DNA analysis or other methods).
98. See Gisli H. Gudjonsson, The Psychology of False Confessions: A Review of the Current Evidence, in POLICE INTERROGATIONS
AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY RECOMMENDATIONS 43 (G. Daniel
Lassiter & Christian A. Meissner eds., 2012) (a leading confession researcher’s assertion that “[e]xperimental research is particularly helpful in
studying the conditions under which people make false confessions and allow the researcher to control for ground truth, but this kind of
research has little ecological validity in terms of applying it to real-life individual cases”).
99. See Saul M. Kassin & Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation, 7
PSYCHOL. SCI. 125, 126 (1996). This study has been replicated by other researchers. Robert Horselenberg et al., Individual Differences and
False Confessions: A Conceptual Replication of Kassin and Kiechel (1996), 8 J. PSYCHOL. CRIME & L. 1 (2003) (investigating the influence
of confession consequences); Jessica R. Klaver et al., Effects of Personality, Interrogation Techniques and Plausibility in an Experimental False
Confession Paradigm, 13 LEGAL & CRIMINOLOGICAL PSYCHOL. 71 (2008) (investigating the effect of minimization and
maximization techniques).
100. See Klaver et al., supra note 99, at 81–82 (finding that when the “crash key” was further away from the other keys, participants were 16
times less likely to falsely confess); Tim Cole et al., Trying to Obtain False Confessions through the Use of False Evidence: A Replication of Kassin
and Kiechel’s Study (2009), available at http://citation.allacademic.com/meta/p_mla_apa_research_citation/0/1/3/1/3/p13137_index.html
(obtaining no false confessions when subjects knew they had not caused the crash).
101. See, e.g., Russano et al., supra note 96, at 482 (stating that “the participants clearly knew whether they committed the act”) & 484
(Table 1) (finding significant effects of manipulation techniques); Jennifer T. Perillo & Saul M. Kassin, Inside Interrogation: The Lie, the Bluff,
and False Confessions, 35 LAW & HUM. BEHAV. 327, 330 (2011) (laboratory study finding that the bluff technique increased true
confessions from 26 to 89% and false confessions from 45 to 70%).
102. Russano et al., supra note 96, at 484 (Table 1) (6%); Perillo & Kassin, supra note 101, at 334 (26.7%).
103. See Lawrence Rosenthal, Against Orthodoxy: Miranda Is Not Prophylactic and the Constitution Is Not Perfect, 10 CHAP. L. REV. 579,
617–18 (2007) (“it would not surprise me if the vast majority of custodial interrogations involve the features condemned by critics. If so, the fact
that a study of false confessions will frequently disclose the use of [manipulative] interrogation tactics . . . provides no basis to conclude that
these features increase the likelihood that a confession is false”).
104. BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS G. WRONG 21, 38
(2011).
105. Based on his comprehensive study of false-confession cases, Leo concludes that these are the two most likely causes. RICHARD A.
LEO, POLICE INTERROGATION AND AMERICAN CRIMINAL JUSTICE 201, 224–25 (2008).
106. WHITEBREAD & SLOBOGIN, supra note 7, at 597.
107. Boykin v. Alabama, 395 U.S. 238 (1969).
108. In Henderson v. Morgan, 426 U.S. 637 (1976), the Court held that a plea is invalid unless the person understands the “critical”
elements of the charge, including the mens rea requirement for the crime. The Court overturned Henderson’s plea because he had not
understood that intent was an element of second-degree murder, to which he had pled guilty.
109. This obviously includes the most likely sentence. The federal rules also require that the person be informed of minimum and maximum
sentences, the effects of any special parole terms, and whether restitution of the victim might be required. FED. R. CRIM. P. 11(c). The

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American Bar Association (ABA) recommends that the defendant also be informed of any additional punishment that might be authorized by
reason of a previous conviction. ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY, std. 14-1-4(a)
(iii). However, “collateral” consequences of a plea (e.g., loss of the right to vote) need not be communicated, with some exceptions like
deportation. See generally WHITEBREAD & SLOBOGIN, supra note 7, at 613–15.
110. Cf. Boykin v. Alabama, 395 U.S. 238 (1969).
111. Cf. Henderson v. Morgan, 426 U.S. 637 (1976) (judge need not make inquiry on record to determine understanding of charge pleaded
to if there is “a representation [on the record] by defense counsel that the nature of the offense has been explained to the accused”).
112. 478 F.2d 211 (9th Cir. 1973).
113. Id. at 214–25.
114. Id. at 215.
115. 509 U.S. 389 (1993).
116. Id. at 398.
117. Note, Competence to Plead Guilty: A New Standard, 1974 DUKE L.J. 149, 170.
118. Bruce Winick, Incompetency to Stand Trial: An Assessment of Costs and Benefits, and a Proposal for Reform, 39 RUTGERS L. REV.
243, 271–72 (1987) (arguing that defendants who can articulate a preference for trial should be found competent, if their attorney acquiesces);
Richard J. Bonnie, The Competence of Criminal Defendants: A Theoretical Reformulation, 10 BEHAV. SCI. & L. 291 (1992) (disagreeing with
Winick’s “articulation” standard, and instead proposing a standard that requires the ability to give a plausible reason for the decision to go to
trial before agreeing with a defendant’s decision). For a subsequent treatment of both approaches, see Bruce Winick, Reforming Incompetency to
Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie, 85 J. CRIM. L. & CRIMINOLOGY 571 (1995).
119. 509 U.S. at 401 n.12.
120. Boykin v. Alabama, 395 U.S. 238, 244 (1969).
121. Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. MIAMI L. REV. 539, 579 (1993).
122. Christopher Slobogin & Amy Mashburn, The Criminal Defense Lawyer’s Fiduciary Duty to Clients with a Mental Disability, 68
FORDHAM L. REV. 1581, 1597–98 (2000).
123. WHITEBREAD & SLOBOGIN, supra note 7, at 599.
124. 434 U.S. 357 (1978).
125. 397 U.S. 742 (1970).
126. Toward the end of its opinion, the Court summed up its stance by stating: “[A] plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless
induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or
perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g., bribes).” Id. at 755
(quoting Shelton v. United States, 246 F.2d 571 (5th Cir. 1957) (en banc)).
127. It should be noted, however, that one study found that pro se defendants fared at least as well as those represented by counsel. Erica J.
Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. REV. 423 (2007).
128. 422 U.S. 806 (1975).
129. Id. at 820.
130. Westbrook v. Arizona, 384 U.S. 150 (1966) (per curiam); Massey v. Moore, 348 U.S. 105 (1954).
131. 509 U.S. 389 (1993).
132. Id. at 400.
133. Cf. United States v. Mohawk, 20 F.3d 1480 (9th Cir. 1994) (government failed to prove that waiver of counsel was knowing and
intelligent).
134. 465 U.S. 168 (1984).
135. 554 U.S. 164 (2008).
136. Id. at 178.
137. Id. at 175–76. It should also be noted that several states have refused to follow Edwards. See People v. Davis, 352 P.3d 950 (Colo.
2015); State v. Barnes, 753 S.E.2d 545 (S.C. 2014).
138. See, e.g., Cordoba v. Harris, 473 F. Supp. 632 (S.D.N.Y. 1979).
139. See John H. Blume & Morgan J. Clark, “Unwell”: Edwards v. Indiana and the Fate of Mentally Ill Pro Se Defendants, 21 CORNELL J.
L. & PUB. POL’Y 153, 161–67 (2011) (a survey of cases since Edwards, finding that trial judges usually allow defendants with serious mental
illness to proceed pro se and that appellate courts almost always affirm whatever decision the trial court makes about self-representation). A
good example is the Colin Ferguson case, involving a defendant charged with the murder of six people on the Long Island Railroad. There a
clearly mentally ill defendant was nonetheless allowed to proceed pro se after firing his lawyers, who had wanted to pursue a “black rage”

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defense. Because Ferguson was held to understand the consequences of his waiver, the court accepted it. Ferguson went on to defend himself on
the ground that he did not commit the offense, despite overwhelming proof to the contrary. N.Y. TIMES, Dec. 10, 1994, at 29, col. 5. See also
People v. Miller, 167 Cal. Rptr. 816, 1818 (1980) (bizarre statements and actions alone do not make waiver invalid); State v. Evans, 610 P.2d
35 (Ariz. 1980) (diagnosis of paranoid schizophrenia does not make waiver invalid).
140. Faretta, 422 U.S. at 834.
141. For a detailed proposal of how Edwards should be operationalized, see Lea Johnston, Representational Competence: Defining the Limits
of Self-Representation at Trial, 86 NOTRE DAME L. REV. 523 (2011).
142. For a list of relevant cases, see Frendak v. United States, 408 A.2d 364, 373 nn.13–14 (D.C. 1979).
143. 346 F.2d 812 (1965).
144. Id. at 818–19.
145. See, e.g., United States v. Robertson, 507 F.2d 1148, 1161 (D.C. Cir. 1974) (separate opinion of Bazelon, C.J.).
146. 408 A.2d 364 (1979).
147. 400 U.S. 25 (1970).
148. 422 U.S. 806 (1975).
149. 408 A.2d at 376.
150. Id. at 376–78.
151. Id. at 378.
152. Martin Sabelli & Stacey Leyton, Train Wrecks and Freeway Crashes: An Argument for Fairness and against Self-Representation in the
Criminal Justice System, 91 J. CRIM. L. & CRIMINOLOGY 161, 173–76 (2000) (noting that virtually all cases since 1980 have “rejected the
courts’ power to impose” an insanity defense).
153. 940 F.2d 1543 (D.C. Cir. 1991). The Marble court gave two reasons for its decision, both based on the post-Whalem changes in federal
law: (1) Because federal law has now made clear that insanity is an affirmative defense to be proven by the defendant [see § 8.02(b)], the defense
should have the prerogative of deciding when to raise it; and (2) because federal law has now made clear that persons who are convicted are
entitled to mental health treatment in a hospital if such treatment is necessary, bare imprisonment is no longer the only alternative to an insanity
acquittal for the mentally ill offender. Of course, neither of these reasons confronts the Whalem court’s conclusion that a blameless person
should not be convicted under any circumstances.
154. See Hendricks v. People, 10 P.3d 1231, 1242–44 (Colo. 2000) (relying on statutory provision allowing defense counsel to impose an
insanity defense with court approval). See also Robert D. Miller et al., Forcing the Insanity Defense on Unwilling Defendants: Best Interests and
the Dignity of the Law, 24 J. PSYCHOL. & L. 487, 504 (1996) (reporting, based on a survey of state attorneys general, that the insanity defense
can be raised over the defendant’s objection or without the defendant’s knowledge in 17 states).
155. See, e.g., Anthony J. Casey, Maintaining the Integrity of Death: An Argument for Restricting a Defendant’s Right to Volunteer for
Execution at Certain Stages in Capital Proceedings, 30 AM. J. CRIM. L. 75 (2002).
156. Sabelli & Leyton, supra note 152, at 176–79.
157. Id. at 179–81.
158. Some lower courts have so held. State v. Handy, 73 A.3d 421 (N.J. 2013); State v. Faragi, 498 A.2d 723, 728–30 (N.H. 1985).
159. 408 F.2d at 380 n.29.
160. See Slobogin & Mashburn, supra note 122, at 1582–83 & 1630 n.229.
161. Id. at 1604–05.
162. For reviews of the pre-1970s law, most of which came from cases rather than statutes, see George Collins & E. Clifton Bond, Youth as
a Bar to Testimonial Competence, 8 ARK. L. REV. 100 (1954). See, e.g., United States v. Perez, 526 F.2d 859 (5th Cir. 1976); United States v.
Schoefield, 465 F.2d 560 (D.C. Cir. 1975), cert. denied, 409 U.S. 881 (1972).
163. See Scott Rowley, The Competency of Witnesses, 24 IOWA L. REV. 482, 488 (1939).
164. For a summary of current state laws regarding requirements with respect to competence to testify, see Randy K. Otto et al., Testimonial
Capacity, in HANDBOOK OF FORENSIC ASSESSMENT: PSYCHOLOGICAL AND PSYCHIATRIC PERSPECTIVES 187 (Eric
Y. Drogin et al. eds., 2011).
165. The rule actually states that every person is competent to be a witness “except as otherwise provided in these rules.” Rules that might
limit the apparent broad scope of Rule 601 include Rule 401 (barring the admission of irrelevant information), Rule 403 (barring relevant
information if there is a substantial danger it would mislead the jury or cause undue prejudice), Rule 602 (requiring that testimony be based on
“personal knowledge”), and Rule 603 (requiring all witnesses to declare that they will testify truthfully).
The view endorsed by the Federal Rules of Evidence goes back much further, however. Indeed, in the 1895 case of Wheeler v. United States,
159 U.S. 523, 524 (1895), the United States Supreme Court held that the five-year-old son of a murder victim was properly qualified as a
witness. Even older is the English decision in Rex v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1770), which stated that “there is no precise or

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fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they
entertain of the danger and impropriety of falsehood, which is to be collected from their answers to questions propounded to them by the court,
but if they are found incompetent to take an oath, their testimony cannot be received.” Id. at 203.
166. DAVID LOUISELL & CHRISTOPHER MUELLER, FEDERAL EVIDENCE § 252, at 18 (1979).
167. See Otto et al., supra note 164, at 188.
168. See, e.g., 18 U.S.C. § 3509(c); ALA. CODE § 15-25-3(c) (2005); COLO. REV. STAT. § 13-90-106(1)(b)(II) (2005); CONN. GEN.
STAT. § 54-86h (2006); GA. CODE ANN. § 24-9-5 (2006); MO. ANN. STAT. § 491.060(2)(2005); UTAH CODE ANN. § 76-5-410
(2006). For other states, see John E.B. Myers, The Competence of Young Children to Testify in Legal Proceedings, 11 BEHAV. SCI. & L. 121,
132 n.66 (1993).
169. See, e.g., Moates v. State, 545 So. 2d 224 (Ala. Crim. App. 1989); People v. District Ct., 791 P.2d 682 (Colo. 1990).
170. JOHN HENRY WIGMORE, WIGMORE ON EVIDENCE § 509 (3d ed. 1940).
171. See supra note 165.
172. GLEN WEISSENBERGER, FEDERAL RULES OF EVIDENCE 235 (4th ed. 2001).
173. Myers, supra note 168, at 168.
174. Id. at 222–23. Although these criteria are most often found in cases addressing the competence of children, they are also used in
evaluating the competence of other witnesses. See, e.g., Commonwealth v. Anderson, 552 A.2d 1064 (1988) (holding that “competency
considerations applicable to a child witness are also applicable to a retarded adult with the mental capacity of a child”).
175. But note that even children with mild intellectual and other developmental disabilities can provide accurate accounts of their
experiences, at least when questioned in a nonleading manner. For a summary of this research, see MICHAEL E. LAMB ET AL., TELL M.
WHAT HAPPENED: STRUCTURED INVESTIGATIVE INTERVIEWING OF CHILD VICTIMS AND WITNESSES 247–51
(2008).
176. Marcia Johnson & Mary Foley, Differentiating Fact from Fantasy: The Reliability of Children’s Memory, 40(2) J. SOC. ISSUES 33, 36
(1984).
177. Gail S. Goodman & Alison Clarke-Stewart, Suggestibility in Children’s Testimony: Implications for Sexual Abuse Investigations, in THE
SUGGESTIBILITY OF CHILDREN’S RECOLLECTIONS (John Doris ed., 1991), cited in Myers, supra note 168, at 123.
178. Michael E. Lamb et al., Children and the Law, in 3 HANDBOOK OF CHILD PSYCHOLOGY AND DEVELOPMENTAL
SCIENCE 464 (7th ed. 2015).
179. Sue D. Hobbs et al., Evaluating Eyewitness Testimony of Children, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 561,
563, 566 (Irving B. Weiner & Randy K. Otto eds., 4th ed. 2014). See also Marcus Choi Tye, The Willingness of Children to Lie and the
Assessment of Credibility in an Ecologically Relevant Laboratory Setting, 3 APPLIED DEV. SCI. 92 (1999) (finding that 69% of children who
did not witness a theft accused the research assistant of the theft following prompting by significant others, and 56% of the children who
witnessed a significant other steal a textbook incorrectly accused the research assistant following a request from the significant other).
180. See studies described in Joanna D. Pozzulo & Janet Balfour, Children’s and Adults’ Eyewitness Identification Accuracy When a Culprit
Changes His Appearance: Comparing Simultaneous and Elimination Lineup Procedures, 11 LEGAL & CRIMINOLOGICAL PSYCHOL. 25
(2006); Marion Perlmutter & Nancy A. Myers, Recognition Memory in Preschool Children, 12 DEV. PSYCHOL. 271 (1976); Ann Brown,
Judgments of Recency for Long Sequences of Pictures: The Absence of a Developmental Trend, 15 J. EXPERIMENTAL CHILD PSYCHOL.
473 (1973).
181. Gail S. Goodman & Rebecca S. Reed, Age Differences in Eyewitness Testimony, 10 LAW & HUM. BEHAV. 317 (1986); Janat F.
Parker et al., Eyewitness Testimony of Children, 16 J. APPLIED PSYCHOL. 287 (1986).
182. Whitney J. Cain et al., A Face in the Crowd: The Influences of Familiarity and Delay on Preschoolers’ Recognition, 11 PSYCHOL.
CRIME & LAW 315 (2005); Michael Leippe et al., Eyewitness Memory for a Touching Experience: Accuracy Differences between Child and
Adult Witnesses, 76 J. APPLIED PSYCHOL. 367 (1987).
183. See generally Aspasia Karageorge & Rachel Zajac, Exploring the Effects of Age and Delay on Children’s Person Identification: Verbal
Descriptions, Lineup Performance, and the Influence of Wildcards, 102 BRIT. J. PSYCHOL. 161 (2011); Beth M. Schwart-Kenney et al.,
Improving Children’s Person Identification, 1 CHILD MALTREATMENT 121 (1996); Mary A. King & John C. Yuille, Suggestibility and the
Child Witness, in CHILDREN’S EYEWITNESS MEMORY 24 (Stephen J. Ceci et al. eds., 1987); Janat F. Parker & Lourdes E. Carranza,
Eyewitness Testimony of Children in Target-Present and Target-Absent Lineups, 13 LAW & HUM. BEHAV. 133 (1989); Joanna D. Pozzulo &
R. C. L. Lindsay, Identification Accuracy of Children versus Adults: A Meta-Analysis, 22 LAW & HUM. BEHAV. 549 (1998).
184. See Karageorge & Zajac, supra note 183; Karen J. Saywitz et al., Children’s Memories of a Physician Examination Involving Genital
Touch: Implications for Reports of Child Sexual Abuse, 59 J. CONSULTING & CLINICAL PSYCHOL. 682 (1991); Margaret S. Steward &
David S. Steward, The Development of a Model Interview for Young Child Victims of Sexual Abuse: Comparing the Effectiveness of Anatomical
Dolls, Drawings, and Video Graphics (Final Report to the National Center on Child Abuse and Neglect, 1990).

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 185. See, e.g., Joanna Pozzulo et al., Preschoolers’ Person Description and Identification Accuracy: A Comparison of the Simultaneous and
Elimination Lineup Procedures, 30 J. APPLIED DEV. PSYCHOL. 667 (2009); Joanna Pozzulo & Rod C.L. Lindsay, Elimination Lineups: An
Improved Identification Procedure for Child Eyewitnesses, 84 J. APPLIED PSYCHOL. 167 (1999).
186. See, e.g., Jayne Beresford & Mark Blades, Children’s Identification of Faces from Lineups: The Effects of Lineup Presentation and
Instructions on Accuracy, 91 J. APPLIED PSYCHOL. 1102 (2006).
187. Barbara Vanoss Marin et al., The Potential of Children as Eyewitnesses: A Comparison of Children and Adults on Eyewitness Tasks, 3
LAW & HUM. BEHAV. 295 (1979).
188. However, there is some research suggesting that a small proportion of young children (1–3%) report fantasy when asked about real-life
events. Gail S. Goodman & Christine Aman, Children’s Use of Anatomically Detailed Dolls to Recount an Event, 61 CHILD DEV. 1859
(1990); Leslie Rudy & Gail Goodman, Effects of Participation on Children’s Reports; Implications for Children’s Testimony, 27 DEV.
PSYCHOL. 527 (1991).
189. For a concise summary of this literature, see LAMB ET AL., supra note 175, at 38–40. See also Jonathan Ling & Allison Coombe, Age
Effects in Earwitness Recall of a Conversation, 100 PERCEPTUAL & MOTOR SKILLS 774 (2005).
190. Rhona Flin et al., The Effect of a Five-Month Delay on Children’s and Adults’ Eyewitness Memory, 83 BRIT. J. PSYCHOL. 323 (1992).
See also Karen Salmon & Margaret-Ellen Pipe, Recalling an Event One Year Later: The Impact of Props, Drawing, and a Prior Interview, 14
APPLIED COGNITIVE PSYCHOL. 99 (2000) (one year after event, 30–50% of new information reported for first time was inaccurate).
191. Debra Ann Poole & Lawrence T. White, Two Years Later: Effects of Question Repetition and Retention Interval on the Eyewitness
Testimony of Children and Adults, 29 DEV. PSYCHOL. 844 (1993). See also Charles J. Brainerd et al., Development of Forgetting and
Reminiscence, 55 MONOGRAPHS SOC’Y FOR RES. CHILD DEV. 1 (1990).
192. David B. Pillemer & S. White, Childhood Events Recalled by Children and Adults, 21 ADVANCES CHILD DEV. & BEHAV. 297
(1989). For a review, see Ingrid M. Cordon et al., Memory for Traumatic Experiences in Early Childhood, 24 DEV. REV. 101 (2004).
193. See generally Margaret-Ellen Pipe et al., Recent Research on Children’s Testimony about Experienced and Witnessed Events, 24 DEV.
REV. 440 (2004); Peggy J. Miller & Linda L. Sperry, Early Talk about the Past: The Origins of Conversational Stories of Personal Experience, 15
J. CHILD LANGUAGE 293 (1988).
194. See, e.g., AMERICAN PROFESSIONAL SOCIETY ON THE ABUSE OF CHILDREN, PRACTICE GUIDELINES:
FORENSIC INTERVIEWING IN CASES OF SUSPECT CHILD ABUSE (2012); Karen Saywitz & Lorinda B. Camparo, Contemporary
Child Interviewing: Evolving Consensus and Innovation over 25 Years, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS:
PSYCHOLOGICAL SCIENCE AND THE LAW 102 (Bette Bottoms et al. eds., 2009).
195. Gary Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLINICAL CHILD PSYCHOL. 47, 58 (1995)
(citing five studies); See also Pipe et al., supra note 193.
196. Debra Ann Poole & Lawrence T. White, Tell Me Again and Again: Stability and Change in the Repeated Testimonies of Children and
Adults, in MEMORY AND TESTIMONY IN THE CHILD WITNESS 26–34 (Maria S. Zaragoza et al. eds., 1995) [hereinafter
MEMORY AND TESTIMONY]. See also Amye R. Warren & Peggy Lane, Effects of Timing and Type of Questioning on Eyewitness Accuracy
and Suggestibility, in MEMORY AND TESTIMONY, at 56–57 (noting that “neutral questioning” may help maintain accuracy if done early,
but also noting that multiple neutral interviews are unlikely in the “real world”).
197. Poole & White, supra note 196, at 42. This observation is also consistent with earlier laboratory studies suggesting marked age
differences in free-recall ability that appear related to developmental differences in retrieval strategy discussed below.
198. Karen J. Saywitz et al., Can Children Provide Accurate Eyewitness Reports?, 1 VIOLENCE UPDATE 1 (Sept. 1990) (“One of the most
stable findings of memory research is that young children spontaneously recall less information than older children and adults when asked open-
ended questions”). But see Michael E. Lamb et al., Age Differences in Young Children’s Responses to Open-Ended Invitations in the Course of
Forensic Interviews, 71 J. CONSULTING & CLINICAL PSYCHOL. 926 (2003) (expressing a nuanced view of this point).
199. Probably the leading case in this area is New Jersey v. Michaels, 625 A.2d 489 (N.J. 1993), which held that upon an appropriate
showing, trial courts must hold “taint” hearings to determine whether suggestive interviewing has rendered a child’s testimony inadmissible.
200. See generally ELIZABETH LOFTUS, EYEWITNESS TESTIMONY (1979).
201. For summaries of this literature, see LAMB ET AL., supra note 175, at 40–43, and Hobbs et al., supra note 179, at 572–579.
However, one study found that suggestibility scores were lower after a three-month delay. Lucy Akehurst et al., Effect of Social Encountered
Misinformation and Delay on Children’s Eyewitness Testimony, 16 PSYCHIATRY PSYCHOL. & L. S125 (2009).
202. For a general review, see Stephen J. Ceci & Maggie Bruck, The Suggestibility of the Child Witness: A Historical Review and Synthesis,
113 PSYCHOL. BULL. 403 (1993). See also Stefanie Schwarz & Claudia Roebers, Age Differences in the Effects of Social Influence on
Children’s Eyewitness Performance and Their Metacognitive Monitoring, 94 J. EXPERIMENTAL CHILD PSYCHOL. 229 (2006); Stephen J.
Ceci et al., Interviewing Preschoolers: Remembrance of Things Planted, in THE CHILD WITNESS: COGNITIVE, SOCIAL AND LEGAL
ISSUES (D.P. Peters ed., 1996); Stephen J. Ceci et al., Age Differences in Suggestibility: Psycholegal Implications, 117 J. EXPERIMENTAL

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PSYCHOL.: GEN. 38 (1987).
203. Karen J. Saywitz, Improving Children’s Testimony: The Question, the Answer, and the Environment, in MEMORY AND
TESTIMONY, supra note 196, at 109 & 122. See also Jennifer Ackil et al., Memorial Consequence of Forced Confabulation: Age Differences in
Susceptibility to False Memories, 34 DEV. PSYCHOL. 1358 (1998) (finding that with age, participants were less likely to experience false
memories in response to questions about events that they had not experienced); Gail S. Goodman et al., Children’s Memory for a Stressful Event:
Improving Children’s Reports, 1 J. NARRATIVE & LIFE HIST. 69 (1991) (finding that when interviewed in an intimidating manner, three-
and four-year-olds may answer abuse-related questions at an average error commission rate of 25%); Ann E. Tobey & Gail S. Goodman,
Children’s Eyewitness Memory: Effects of Participation and Forensic Context, 16 CHILD ABUSE & NEGLECT 779 (1992) (describing
suggestivity of four-year-olds in response to police questioning).
However, there may not be a completely linear relationship between age and conformity. In research involving first, fourth, seventh, and
tenth graders, Allen and Newtson observed adult influence on children’s judgments to decrease sharply from first to fourth grade, and then to
increase slightly in tenth grade. This result was consistent across several forms of judgments: “visual” (judgment of length of line), “opinion”
(e.g., “Kittens make good pets”), and “delay of gratification” (e.g., “I would rather have 50 cents today than $1 tomorrow”). Vernon Allen &
Darren Newtson, Development of Conformity and Independency, 22 J. PERSONALITY & SOC. PSYCHOL. 18 (1972).
204. Warren & Lane, supra note 196, at 58–59.
205. Jeffrey J. Haugaard et al., Children’s Definitions of the Truth and Their Competency as Witnesses in Legal Proceedings, 15 LAW &
HUM. BEHAV. 253 (1991).
206. See generally Gail S. Goodman & V. Helgeson, Children as Witnesses: What Do They Remember? in HANDBOOK ON SEXUAL
ABUSE OF CHILDREN (Lenore E. Auerbach Walker ed., 1988) (noting that children are more likely to be suggestible than adults when
their memory is weaker or the questioner is “of relatively high status”).
207. Eugene Fodor, Resistance to Social Influence among Adolescents as a Function of Moral Development, 85 J. SOC. PSYCHOL. 121
(1971).
208. See Carol K. Sigelman et al., The Responsiveness of Mentally Retarded Persons to Questions, 17 EDUC. & TRAINING MENTALLY
RETARDED 120, 123 (1982).
209. Marvin Rosen et al., Investigating the Phenomenon of Acquiescence in the Mentally Handicapped: I. Theoretical Model, Test Development
and Normative Data, 20 BRIT. J. MENTAL SUBNORMALITY 58, 58–68 (1974); Carol K. Sigelman et al., When in Doubt, Say Yes:
Acquiescence in Interviews with Mentally Retarded Persons, 19 MENTAL RETARDATION 53 (1980). See also discussion of people with
intellectual disabilities and interrogation, supra notes 70–73.
210. John E.B. Myers, The Testimonial Competence of Children, 25 J. FAM. L. 287, 318 (1986).
211. John R. Christiansen, Washington Survey: The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62
WASH. L. REV. 705, 717–18 (1987). At least one court has adopted this procedure. See New Jersey v. Michaels, described supra note 199.
212. The classical Piagetian assessment of this ability invokes a task of reproducing the view of a particular scene (i.e., a model of three
mountains) from different vantage points. See JEAN PIAGET & BARBEL INHELDER, THE CHILD’S CONCEPTION OF SPACE
(1956).
213. DAVID SHAFFER, DEVELOPMENTAL PSYCHOLOGY: THEORY, RESEARCH, AND APPLICATIONS 285 (1985). See
also Yael Gertner et al., Learning Words and Rules: Abstract Knowledge of Word Order in Early Sentence Comprehension, 17 PSYCHOL. SCI.
684 (2006).
214. See Charles Brainerd, Learning Research and Piagetian Theory, in ALTERNATIVES TO PIAGET: CRITICAL ESSAYS ON THE
THEORY (Linda S. Seigel & Charles Brainerd eds., 1978) [hereinafter ALTERNATIVES].
215. Helene Borke, Piaget’s Mountains Revisited: Changes in the Egocentric Landscapes, 11 DEV. PSYCHOL. 240 (1975).
216. In a largely critical essay on the philosophical assumptions of Piagetian theory, Hall and Kaye made a similar point: “If psychologists are
interested in describing the normal course of cognitive development, much of Piaget’s theory may be of use. If, on the other hand, the theorist is
interested in determining the child’s ultimate capacity at any given time, he would use the approach exemplified by Trabasso.” Vernon C. Hall
& Daniel B. Kaye, The Necessity of Logical Necessity in Piaget’s Theory, in ALTERNATIVES, supra note 214, at 165–66.
217. For a review of the case law on these points, see Myers, supra note 210, at 318–24.
218. Rolf H. Monge et al., An Evaluation of the Acquisition of Sexual Information through a Sex Education Class, 13 J. SEX RES. 170
(1977).
219. Id. at 179 (only 38.4% of the students knew the meaning of the word “menstruation”; 13.1% knew the definition of “scrotum”; 14.1%
knew what “coitus” means; 30.3% knew that “Fallopian tubes” are part of the female reproductive system, and 54.5% knew that “seminal
vesicles” are part of the male reproductive system; the meaning of “menopause” was known by 27.5% of the students). See also Cathleen A.
Carter et al., Linguistic and Socioemotional Influences on the Accuracy of Children’s Reports, 29 LAW & HUM. BEHAV. 335 (1996) (finding
that accuracy was significantly decreased when complex, developmentally inappropriate questions were used, and increased when children were

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interviewed by “a warm supportive interviewer”).
220. Hans Kreitler & Shulamith Kreitler, Children’s Concepts of Sexuality and Birth, 37 CHILD DEV. 363 (1966).
221. See Ashley Fanshler & Rolando V. del Carmen, “The Child as Witness”: Evaluating State Statutes on the Court’s Most Vulnerable
Population, 36 CHILD. LEGAL RTS. J. 1 (2016) (cataloguing state law).
222. The voir dire in Wheeler, discussed supra note 165, was exemplary: “The boy . . . said among other things that he knew the difference
between the truth and a lie; that if he told a lie the bad man would get him, and that he was going to tell the truth. When further asked what
they would do to him in court if he told a lie, he replied they would put him in jail. He also said that his mother had told him that morning to
‘tell no lie,’ and in response to a question as to what the clerk said to him, when he held up his hand, he answered, ‘Don’t you tell no story.’ ”
159 U.S. at 524.
223. See, e.g., People v. Norfleet, 371 N.W.2d 438 (Mich. 1985) (child witness); State v. Pettis, 488 A.2d 704, 706 (R.I. 1985) (witness with
intellectual disability).
224. See, e.g., FED R. EVID. 603: “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath
or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”
225. See, e.g., N.Y. CRIM. PROC. LAW § 60.20 (2016); FLA. STAT. ANN. § 90.605(2) (2016).
226. Roger Burton, Honesty and Dishonesty, in MORAL DEVELOPMENT AND BEHAVIOR: THEORY, RESEARCH, AND
SOCIAL ISSUES (Thomas Lickona ed., 1976) [hereinafter MORAL DEVELOPMENT].
227. Kay Bussey, Lying and Truthfulness: Children’s Definitions, Standards and Evaluative Reactions, 63 CHILD DEV. 129, 135 (1992).
228. Haugaard et al., supra note 205.
229. Id. at 269. See also Marcus C. Tye et al., The Willingness of Children to Lie and the Assessment of Credibility in an Ecologically Relevant
Laboratory Setting, 3 APPLIED DEV. SCI. 92 (1999) (when parents direct children to lie, the rate of false allegations is likely to increase).
230. See studies cited in James Ellis & Ruth Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 429 n.78
(1985).
231. MORAL DEVELOPMENT, supra note 226. See also Katherine A. Broomfield et al., Children’s Understanding about White Lies, 20
BRIT. J. DEV. PSYCHOL. 47 (2002) (finding younger children more likely than older ones to tell the truth, despite a likelihood of hurting
someone’s feelings); Fen Xu et al., Understanding Concepts and Moral Evaluations of White-Lie and Truth-Telling, 34 ACTA PSYCHOL.
SINICA 74 (2002) (finding that children as young as four—but not three—were capable of understanding the concept of a falsehood in the
service of avoiding a hurtful truth).
232. Genyue Fu et al., The Moral Understanding and Evaluation of Lying or Truth Telling of Primary School Children under the
Circumstances of Individual Benefit or Collective Benefit, 28 PSYCHOL. SCI. (CHINA) 859 (2005) (finding that as Chinese children’s age
increases, their tolerance for lying in the service of individual needs decreases, whereas their acceptance of lying in the service of collective need
increases).
233. JEAN PIAGET, THE MORAL DEVELOPMENT OF THE CHILD (1965).
234. Lawrence Kohlberg, Stage and Sequence: The Cognitive-Developmental Approach to Socialization, in HANDBOOK OF
SOCIALIZATION THEORY AND RESEARCH (David A. Goslin ed., 1969).
235. The correlation between moral judgments and moral behavior is in fact rather modest. See Walter Mischel & Harriet Mischel, A
Cognitive Social-Learning Approach to Morality and Self-Regulation, in MORAL DEVELOPMENT, supra note 226.
236. Cf. State v. Green, 383 S.E.2d 419 (N.C. 1989) (trial court did not abuse its discretion in finding that a seven-year-old was competent
to testify when she testified that she knew what it meant to tell the truth and the difference between right and wrong, although she also testified
that her mother decided what the truth was and that she did not know what it meant to break a promise or what an oath was).
237. Lawrence Kohlberg, From Is to Ought: How to Commit the Naturalistic Fallacy and Get Away with It, in COGNITIVE
DEVELOPMENT AND EPISTEMOLOGY (Walter Mischel ed., 1971).
238. Adherents to social learning theory, the major competing theory of moral development, would agree. See Mischel & Mischel, supra note
235. From their point of view, children’s behavior would be influenced primarily by the rewards, punishments, and models available in a given
situation (in interaction with a child’s cognitive competencies).
239. See, e.g., Sherry Grogan & Kathleen Pace Murphy, Anticipatory Stress Response in PTSD: Extreme Stress in Children, 24 J. CHILD &
ADOLESCENT PSYCHIATRIC NURSING 58, 61 (2011); SUSAN R. HALL & BRUCE D. SALES, COURTROOM
MODIFICATIONS FOR CHILD WITNESSES: LAW AND SCIENCE IN FORENSIC EVALUATIONS 66 (2008).
240. Saywitz, supra note 203, at 136–37. See also Gail S. Goodman & Bette Bottoms, CHILD WITNESSES: UNDERSTANDING
AND IMPROVING TESTIMONY 283 (1993) (reporting research of Rhona Flin); Gail S. Goodman et al., Testifying in Criminal Court, 57
MONOGRAPHS SOC’Y FOR RES. CHILD DEV. 1 (1992); Julie A. Lipovsky, The Impact of Court on Children: Research Findings and
Practical Recommendations, 9 J. INTERPERS. VIOLENCE 238 (1994). There are obvious ethical problems in inducing such stress. As an
alternative, recall, conceptual skills, and the like might be evaluated in situations of naturally occurring stress, such as hospitalization.

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Experimentation might also be attempted in simulations of trials in courtrooms or simulated courtrooms.
241. Paul E. Hill & Samuel M. Hill, Videotaping Children’s Testimony: An Empirical View, 85 MICH. L. REV. 809 (1987). Cf. Maryland v.
Craig, 497 U.S. 836 (1990), in which the Supreme Court upheld such a procedure against a challenge that it violated the Sixth Amendment
right of confrontation.
242. See Gail S. Goodman & Jodi Quas, Innovations for Child Witnesses: A National Survey, 5 PSYCHOL. PUB. POL’Y & L. 255 (1999)
(of 153 prosecutor offices responding to survey, 0% used closed-circuit TV, either one-way or two-way, and only 0.7% used videotaped
depositions).
243. See, e.g., research indicating that the testimony of children whose questioning is recorded or viewed via closed-circuit TV has less
emotional impact and is perceived as less credible: Bradley McAuliff & Margaret B. Kovera, Do Jurors Get What They Expect?: Traditional
Versus Alternative Forms of Children’s Testimony, 18 PSYCHOL. CRIME & L. 27 (2012); Sara Landstrom, CCTV, Live and Videotapes: How
Presentation Mode Affects the Evaluation of Witnesses (2008) (unpublished doctoral dissertation, University of Gothenburg); Holly Orcutt et al.,
Detecting Deception in Children’s Testimony: Factfinders’ Abilities to Reach the Truth in Open Court and Closed-Circuit Trials, 25 LAW &
HUM. BEHAV. 339 (2001).
244. HALL & SALES, supra note 239, at 63.
245. Id. at 5. See also Melton et al., supra note 195, at 64, and Hobbs et al., supra note 179, at 593.
246. HALL & SALES, supra note 239, at 64–65.
247. Id., at 64. See also Lipovsky, supra note 240, at 636. But see Jeffrey C. Sandler, Alternative Methods of Child Testimony: A Review of Law
and Research, in CURRENT PERSPECTIVES IN FORENSIC PSYCHOLOGY AND CRIMINAL JUSTICE 203–212 (Curt R. Bartol
& Anne M. Bartol eds., 2006) (noting an increase in testimony by children since the 1980s).
248. See, e.g., Jonas v. State, 773 P.2d 960 (Alaska Ct. App. 1989); Barrera v. United States, 599 A.2d 1119 (D.C. 1991); State v. R.W., 514
A.2d 1287 (N.J. 1986).
249. Myers, supra note 210, at 348. Indeed, it appears that expert testimony on suggestibility, memory, or typical behavior of an abused child
is very rare. Goodman & Quas, supra note 242, at 6 (expert testimony occurred in 0–3.9% of the cases, depending on the issue).
250. See supra text accompanying note 211.
251. John C. Yuille et al., Interviewing Children in Sex Abuse Cases, in CHILD VICTIMS, CHILD WITNESSES: UNDERSTANDING
AND IMPROVING CHILDREN’S TESTIMONY: CLINICAL, DEVELOPMENTAL AND LEGAL IMPLICATIONS 95 (Gail S.
Goodman & Bette Bottoms eds., 1993). But see Cindy L. Hardy & Sarah A. Van Leeuwen, Interviewing Young Children: Effects of Probe
Structures and Focus of Rapport-Building Talk on the Qualities of Young Children’s Eyewitness Statements, 36 CAN. J. BEHAV. SCI. 155
(2004) (failing to find Yuille et al.’s Step-Wise Interview superior to other approaches in soliciting accurate information from children). See also
Ray Bull, Innovative Techniques for the Questioning of Child Witnesses, Especially Those Who Are Young and Those with Learning Disability, in
MEMORY AND TESTIMONY, supra note 196, at 179, 182–88.
252. Lindsay E. Cronch et al., Forensic Interviewing in Child Sexual Abuse Cases: Current Techniques and Future Directions, 11
AGGRESSION & VIOLENT BEHAV. 195 (2006); A. H. Waterman et al., Interviewing Children and Adults: The Effect of Question Format
on the Tendency to Speculate, 15 APPLIED COGNITIVE PSYCHOL. 521 (2001).
253. Kim P. Roberts et al., The Effects of Rapport-Building Style on Chlidren’s Reports of a Stage Event, 18 APPLIED COGNITIVE
PSYCHOL. 189 (2004).
254. Sonya P. Brubacher et al., Effects of Practicing Episodic versus Scripted Recall on Choldren’s Subsequent Narratives of a Repeated Event,
17 PSYCHOL. PUB. POL’Y & L. 286 (2011); J. Dorado & K. Saywitz, Interviewing Preschoolers from Low and Middle Income Communities:
A Test of the Narrative Elaboration Recall Improvement Technique, 30(4) J. CLINICAL CHILD PSYCHOL. 566 (2001). See generally Karen
J. Saywitz & Lorinda B. Camparo, Interviewing Children: A Primer, in THE SAGE HANDBOOK OF CHILD RESEARCH 371, 379
(Gary B. Melton et al. eds., 2014).
255. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND MATERIALS (8th ed. 2014).
256. Ronald P. Fisher & Michelle R. McCauley, Improving Eyewitness Testimony with the Cognitive Interview, in MEMORY AND
TESTIMONY, supra note 196, at 141.
257. Saywitz, supra note 203, at 128–31. For other descriptions of techniques that enhance investigative and testimonial accuracy, see Carter
et al., supra note 219; Goodman et al., supra note 203.
258. GRAHAM C. LILLY, AN INTRODUCTION TO THE LAW OF EVIDENCE § 10.2 (1987).
259. ABA MODEL CODE OF JUDICIAL CONDUCT canon 3(9); ABA STANDARDS FOR THE PROSECUTION AND
DEFENSE FUNCTIONS §§ 3-5.8(b), 4-7.7(b).
260. MCCORMICK ON EVIDENCE § 44 (6th ed. 2006).
261. LILLY, supra note 258, at 355–56.
262. See generally MCCORMICK ON EVIDENCE, supra note 260, § 44. Many states still restrict credibility testimony to reputation

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evidence, however. Id.
263. 698 F.2d 1154 (11th Cir. 1983).
264. See also Chnapkova v. Koh, 985 F.2d 79 (2d Cir. 1993); United States v. Sessa, 806 F. Supp. 1063, 1069 (E.D.N.Y. 1992); United
States v. Barnard, 490 F.2d 907 (9th Cir. 1973); United States v. DiBernardo, 552 F. Supp. 1315 (S.D. Fla. 1982).
265. DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE §17:9 (2015–16 ed.) (“Courts nearly uniformly prohibit
experts (or any witness) from offering an opinion regarding the trustworthiness of a witness’ specific allegations”); 4 JACK B. WEINSTEIN &
MARGARET A. BERGER, WEINSTEIN’S EVIDENCE §702.06[1][a] (Joseph M. McLaughlin ed., 2d ed. 2012) (“The credibility of
witnesses is normally an issue left exclusively to the finder of fact, and is an improper subject for expert testimony”). But see DAVID H. KAYE
ET AL., THE NEW WIGMORE: EXPERT EVIDENCE §2.4 (2010) (“Even today, in limited situations, general evidence about the
veracity of a particular class of witnesses should be admissible”).
266. 4 Cal. 4th 742, 842 P.2d 1192, 15 Cal. 2d 432, 454 (1992).
267. Lawrence v. State, 796 P.2d 1176 (Okla. Crim. App. 1990); State v. Schimpf, 782 S.W.2d 186 (Tenn. Crim. App. 1989) (comment
upon the credibility of witnesses is not a proper subject for expert testimony); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988)
(sexual abuse cases); Munoz v. State, 763 S.W.2d 30, 32 (Tex. Ct. App. 1988) (holding in a murder trial that the testimony of psychiatric
experts is generally not admissible to impeach, because the benefit to be gained does not offset the delay, confusion, and expense of such
testimony); People v. Miller, 481 N.W.2d 668 (Mich. App. 1987) (“It is well settled that an expert witness may not render an opinion as to a
complainant’s veracity”); United States v. Zaure, 801 F.2d 336 (8th Cir. 1986) (“putting an impressively qualified expert’s stamp on truthfulness
goes too far . . . The jury may well . . . [accept] the opinion and [surrender] their own common sense in weighing testimony”). See also Daniel
D. Blinka, Why Modern Evidence Law Lacks Credibility, 58 BUFF. L. REV. 357, 417 (2010) (“Trials are not social science seminars”). But see
Anne Bowen Poulin, Credibility: A Fair Subject for Expert Testimony?, 59 FLA. L. REV. 991, 994 (2007) (“The common-law prohibition
against expert testimony on credibility should not continue to restrict the admissibility of evidence bearing on credibility”).
268. United States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992). See generally Necessity and Admissibility of Expert Testimony as to Credibility
of Witness, 20 A.L.R. 3d 684 §§ 3 & 4 (1968, updated through 2005) (noting that most courts permit expert testimony on credibility only in
connection with “organic or mental disorders” or “mental impairment”).
269. State v. Kim, 64 Haw. 598, 645 P.2d 1330 (1982); State v. Wilson, 8 Ohio App. 3d 216, 456 N.E.2d 1287 (1982); Hawkins v. Florida,
326 So. 2d 299 (Fla. Ct. App. 2d Dist. 1976).
270. Michael Juviler, Psychiatric Opinion as to Credibility of Witnesses: A Suggested Approach, 48 CAL. L. REV. 648, 674 (1960), quoted in
State v. Vaughn, 171 Conn. 454, 370 A.2d 1002 (1976). See also WIGMORE ON EVIDENCE, supra note 170, §§ 934a, 924a.
271. See, e.g., State v. Campbell, 127 N.H. 112, 116 498 A.2d 330, 333 (1985) (holding that psychiatric testimony on credibility of a rape
complainant should be excluded because its prejudicial impact outweighs its probative value), and Commonwealth v. Zamarripa, 549 A.2nd 980
(1988) (holding that the prosecution-retained psychologist’s testimony that the alleged victim demonstrated symptoms consistent with rape
trauma syndrome was reversible error because it constituted impermissible bolstering of the complainant’s credibility). See generally Leigh B.
Bienen, A Question of Credibility: John Henry Wigmore’s Use of Scientific Authority in Section 924a of the Treatise on Evidence, 29 CAL. W. L.
REV. 235 (1983).
272. As of 2000, a total of 25 states and the military had ruled expert testimony on rape trauma syndrome as admissible evidence; 7 states had
ruled such testimony inadmissible; and 18 states and the District of Columbia had not directly ruled on its admissibility. See Arthur H.
Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and Its Admissibility in Criminal Trial, 23 AM. J. TRIAL
ADVOC. 591, 629 & app. (2000). For a review of the nuances of the caselaw, with some updates, see FAIGMAN ET AL., supra note 265, §§
14.1–14.6.
273. See Arthur Best & Jennifer Middleton, Winking at the Jury: “Implicit Vouching” v. the Limits of Opinion about Credibility, 55 ARIZ. L.
REV. 265 (2013) (describing case law and noting that many courts allow experts to testify in place of child witnesses, on the ground that the
children are incompetent or easily traumatized—in essence, allowing the experts to “vouch” for the child witness). For a detailed analysis in the
heyday of credibility assessments, see David McCord, Expert Psychological Testimony about Child Complainants in Sexual Abuse Prosecutions: A
Foray into the Admissibility of Novel Psychological Evidence, 77 J. CRIM. L. & CRIMINOLOGY 1 (1986).
274. See, e.g., Stephen J. Ross et al., Evaluating Eyewitness Testimony of Adults, in THE HANDBOOK OF FORENSIC PSYCHOLOGY
513 (Irving W. Weiner & Randy K. Otto eds., 4th ed. 2014); BRIAN L. CUTLER & MARGARET B. KOVERA, EVALUATING
EYEWITNESS IDENTIFICATION (2010); THE HANDBOOK OF EYEWITNESS PSYCHOLOGY: MEMORY FOR EVENTS
(Michael P. Toglia et al. eds, 2007); Gary L. Wells et al., Eyewitness Evidence: Improving Its Probative Value, 7 PSYCHOL. SCI. PUB. INT.
45 (2006).
275. See, e.g., United States v. Rincon, 28 F.3d 921, 39 Fed. R. Evid. Serv. 684 (9th Cir. 1994); United States v. Fosher, 590 F.2d 381 (1st
Cir. 1979); State v. Reed, 226 Kan. 591, 601 P.2d 1125 (1979); United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973).
276. Johnson v. State, 272 Ga. 254, 526 S.E.2d 549, 552 (2000) (stating that “only a minority of states and Federal circuits still adhere to the

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position that expert testimony on eyewitness identification should be excluded as a matter of law”); People v. MacDonald, 37 Cal. 3d 351, 690
P.2d 709, 208 Cal. Rptr. 236 (1984); United States v. Downing, 753 F.2d 1224 (3d Cir. 1985).
277. In a groundbreaking decision, the New Jersey Supreme Court set forth model instructions for cases involving eyewitness testimony.
New Jersey v. Henderson, 27 A.2d 872 (N.J. 2011). See also Ric Simmons, Conquering the Province of the Jury: Expert Testimony and the
Professionalization of Fact-Finding, 74 U. CIN. L. REV. 1013, 1032–37 (2006) (describing trend toward admissibility of expert testimony on
eyewitnesses).
278. See generally Michael Logue et al., Using Reality Monitoring to Improve Deception Detection in the Context of the Cognitive Interview for
Suspects, 39 LAW & HUM. BEHAV. 360, 360 (2015) (“numerous studies of many different populations have demonstrated an accuracy rating
of approximately 54% to 57%, not significantly better than the 50% success rate that would be expected by chance”). But see research examining
the utility of Ekman’s Facial Action Coding System in PAUL EKMAN ET AL., EMOTION IN THE HUMAN FACE: GUIDELINES
FOR RESEARCH AND AN INTEGRATION OF FINDINGS (2013).
279. Note that to the extent the issue can be framed in terms of witness competence rather than witness credibility, the moving party may be
better able to compel an evaluation. At the same time, unless there is significant evidence of mental disorder, the court is unlikely to grant such a
motion. Furthermore, even if an evaluation is compelled, it is likely to be at the behest of the court rather than one of the parties, because
witness competence is for the court to determine. Thus, for a competence evaluation, the court will probably select the evaluator and receive the
report.
280. FED. R. CIV. P. 35. In about half the states, parties to a civil suit do not even have the limited power granted by the Federal Rules of
Civil Procedure; even parties cannot be compelled to undergo an evaluation. Even under the Federal Rules, the power to compel is limited;
although the court is authorized in the typical discovery abuse situations to hold defaulting parties in contempt, it may not do so when the order
requires a physical or mental examination.
281. Actually, FED. R. CRIM. P. 16(a)(1)(D) and 16(b)(1)(B) only provide for disclosure of the results of such mental examinations and
tests; they do not authorize either side to compel them. However, most courts permit the prosecution to compel competence and sanity
evaluations. See §§ 4.02(a) & (b).
282. GENE R. SHREVE & PETER RAVEN-HANSEN, UNDERSTANDING CIVIL PROCEDURE § 75, at 297 (1993).
283. Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964).
284. See Oriana Mazza, Re-Examining Motions to Compel Psychological Evaluations of Sexual Assault Victims, 82 ST. JOHN’S L. REV. 763
(2008) (describing relevant law and arguing for a complete ban on compelled psychological evaluations in rape cases); Judith Greenberg,
Compelled Psychological Examination in Sexual Offense Cases: Invasion of Privacy or Defendant’s Right?, 58 FORDHAM L. REV. 1257 (1990).
285. See, e.g., FED. R. EVID. 412 (deeming evidence inadmissible if offered to prove the “alleged victim engaged in other sexual behavior”
or the “alleged victim’s sexual predisposition,” with exceptions); ALA. R. EVID. 412 (stating that “evidence relating to the past sexual behavior
of the complaining witness . . . shall not be admissible . . . except as otherwise provided in this rule”).
286. State v. Rizzo, 250 Wis. 2d 407, 640 N.W.2d 93, 99 (2002) (listing seven factors courts should consider in deciding whether to permit
an evaluation regarding rape trauma syndrome); State v. McIntosh, 30 Kan. App. 2d 504, 43 P.3d 837, 842 (2002), aff’d but criticized, 274 Kan.
939, 58 P.3d 716 (2002); Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989); People v. Graham, 173 Mich. App. 473, 434 N.W.2d 165
(1988); State v. Walker, 506 A.2d 1143 (Me. 1986); Staton v. State, 428 N.E.2d 1203 (Ind. 1981).
287. 4 WILLIAM BLACKSTONE, COMMENTARIES 24 (9th ed. 1978).
288. 477 U.S. 399 (1986).
289. See John L. Faringer IV, The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to
Be Executed, 54 VAND. L. REV. 2441, 2454–56 (2001) (indicating that most states have adopted either Powell’s standard, or Powell’s standard
plus a requirement that the inmate be able to assist counsel).
290. FLA. STAT. § 922.07 (1986).
291. This resolution is now incorporated in the ABA’s CRIMINAL JUSTICE MENTAL HEALTH STANDARDS (2016) [hereinafter
ABA STANDARDS].
292. Id. std. 7-9.9(a)(iii).
293. See Barbara Ward, Competency for Execution: Problems in Law and Psychiatry, 14 FLA. ST. UNIV. L. REV. 35, 49–56 (1986);
Christopher Slobogin, Mental Illness and the Death Penalty, 24 MENTAL & PHYSICAL DISABILITY L. REP. 667, 675–77 (2000).
294. 551 U.S. 930 (2007). The Court also reiterated Ford’s holding that mere reliance on expert reports to determine competence was
insufficient process.
295. Id. at 959.
296. Id. at 959–60.
297. Id. at 424.
298. 127 S. Ct. at 950–51.

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 299. ABA STANDARDS, supra note 291, std. 7-9.9(e).
300. Carter v. Bradshaw, 644 F.3d 329, 332 (2011).
301. ABA STANDARDS, supra note 291, std. 7-9.9(a)(ii).
302. 133 S. Ct. 696 (2013).
303. Id. at 709.
304. ABA STANDARDS, supra note 291, std. 7-9.9(a)(i).
305. For a description of this phenomenon, see John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 MICH. L.
REV. 939 (2005).
306. ABA STANDARDS, supra note 291, std. 7-9.9(b).
307. Gilmore v. Utah, 429 U.S. 1012 (1976).
308. See Blume, supra note 305, at 970 (over 35% of “volunteers” have serious disorders). See generally G. Richard Strafer, Volunteering for
Execution, 74 J. CRIM. L. & CRIMINOLOGY 860 (1983); Note, Insanity of the Condemned, 88 YALE L.J. 533 (1979).
309. Stanley L. Brodsky, Professional Ethics and Professional Morality in the Assessment of Competence for Execution: A Response to Bonnie,
14 LAW & HUM. BEHAV. 91, 92 (1990).
310. See, e.g., Smith v. State, 686 N.E.2d 1264 (Ind. 1997) (death row inmate found competent after stating, “I killed somebody. I’m asking
the court to give me what I’ve got coming. . . . I’m through pissing around,” despite testimony from his lawyer stating that Smith had said if he
was in a “different living situation . . . he would probably change his mind about the death penalty”).
311. Bruce Ebert, Competence to Be Executed: A Proposed Instrument to Evaluate an Inmate’s Level of Competency in Light of the Eighth
Amendment Prohibition against the Execution of the Presently Insane, 25 LAW & PSYCHOL. REV. 29, 56 (Table 2) (2001).
312. Patricia A. Zapf et al., Assessment of Competency for Execution: Professional Guidelines and an Evaluation Checklist, 21 BEHAV. SCI.
& L. 103, 117–120 (app.) (2003).
313. Loren Roth et al., Tests of Competency to Consent to Treatment, 134 AM. J. PSYCHIATRY 279 (1977).
314. Ebert, supra note 311, at 53 (Table 1).
315. Id. at 48–49.
316. In this regard, we concur with ROGERS & SHUMAN, supra note 79, at 322, who suggest a focal time frame that includes current
and past-year functioning.
317. Kirk S. Heilbrun, The Assessment of Competency for Execution: An Overview, 5 BEHAV. SCI. & L. 383, 392 (1987).
318. Ebert, supra note 311. Ebert recommends multiple (three to four) clinical interviews of 1–2 hours each, resulting in assessments of “up
to 8 hours.” Id. at 51. Although we concur with the value of multiple contacts in order to assess the stability and consistency of an inmate’s
presentation, we recommend a somewhat briefer evaluation procedure that may result in assessments of shorter duration.
319. 663 F.2d 1004 (10th Cir. 1981).
320. Id.
321. American Psychological Association, Board of Social and Ethical Responsibility in Psychology, Agenda, Meeting of May 5–7, 1989, at
117.
322. A survey of seven mental health professionals with prior experience in conducting competence-for-execution evaluations reported that
clinicians identified three global issues as most challenging: “(i) the nature of the inquiry itself and the gravity of the consequences, (ii) the
difficulty the evaluator may experience in trying to remain objective, and (iii) the evaluator’s own personal difficulties with the death penalty.”
Zapf et al., supra note 312, at 113. Describing his participation in a death row evaluation, one psychiatrist indicated, “I actually felt excited
about possibly saving a man from execution. I was not completely aware of it at the time, but in retrospect, my objectivity was surely affected.
To what degree, I still don’t know.” Scott A. Freeman, Objectivity versus Beneficence in a Death Row Evaluation, 12 ETHICS & BEHAV. 295,
295 (2002). Ackerson and colleagues reported a study in which 200 psychologists completed ratings of their attitudes toward the death penalty,
and also rated the execution competence of hypothetical inmates whose clinical status was described in written vignettes. This study found that
participants’ attitudes toward capital punishment were modestly but significantly related to judgments of execution competence (r = –.20);
clinicians with negative attitudes toward capital punishment were more likely to judge the fictitious inmate as incompetent. Kimberley S.
Ackerson et al., Judges’ and Psychologists’ Assessment of Legal and Clinical Factors in Competence for Execution, 11 PSYCHOL. PUB. POL’Y
& L. 164, 170–71 (2005).
323. Richard Bonnie, Dilemmas in Administering the Death Penalty: Conscientious Abstention, Professional Ethics, and the Needs of the Legal
System, 14 LAW & HUM. BEHAV. 67, 81–82 (1990).
324. Nat’l Med. Ass’n, Position Statement on the Role of the Psychiatrist in Evaluation and Treating “Death Row” Inmates (undated), cited in
Bonnie, supra note 323, at 84. See also John Gunn, The Royal College of Psychiatrists and the Death Penalty, 32 J. AM. ACAD.
PSYCHIATRY & L. 188 (2004); Abraham Halpern & Alfred M. Freedman, Participation by Physicians in Legal Executions in the USA: An
Update, 15 CURRENT OPINION PSYCHIATRY 605 (2002); G. B. Leong et al., Survey of Forensic Psychiatrists on Evaluation and

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Treatment of Prisoners on Death Row, 28 J. AM. ACAD. PSYCHIATRY & L. 427 (2000); Christopher J. Levy, Conflict of Duty: Capital
Punishment Regulations and AMA Medical Ethics, 26 J. LEGAL MED. 261 (2005).
325. Bonnie, supra note 323, at 83–84.
326. Id. at 82–86. A third response would be to have nonprofessionals provide the treatment—something that may be feasible for some types
of medical treatment, but probably not for all psychiatric treatment. See Stacy A. Ragon, A Doctor’s Dilemma: Resolving the Conflict between
Physician Participation in Executions and the AMA’s Code of Medical Ethics, 20 DAYTON L. REV. 975 (1995).
327. David Wexler & Bruce Winick, Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy Analysis and Research, 45 U.
MIAMI L. REV. 979, 992–97 (1991).
328. For a full description of the litigation, see State v. Perry, 610 So. 2d 746 (La. 1992).
329. 494 U.S. 210 (1990).
330. 610 So. 2d at 751.
331. Id. at 747–48.
332. 319 F.3d 1018 (8th Cir. 2003).
333. 439 U.S. 166 (2003).
334. See ABA STANDARDS, supra note 291, std. 7-9.9(d).

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Chapter 8

1. For one comprehensive treatment of the insanity defense that provides citations to much of the philosophical and empirical literature, see
MICHAEL PERLIN, THE JURISPRUDENCE OF THE INSANITY DEFENSE (1994).
2. DAVID ABRAHAMSEN, THE PSYCHOLOGY OF CRIME 106 (1967); Joseph Weintraub, Insanity as a Defense: A Panel
Discussion, 37 F.R.D. 365, 372 (1964); Abraham L. Halpern, The Politics of the Insanity Defense, 14 AM. J. FORENSIC PSYCHIATRY 1
(1993).
3. NORVAL MORRIS, MADNESS AND THE CRIMINAL LAW (1982).
4. 1 NAT’L COMM’N ON REFORM OF FED. CRIM. LAWS, WORKING PAPERS 248–52 (1970).
5. Mannfred Guttmacher, Principal Difficulties with the Present Criteria of Responsibility and Possible Alternatives, in MODEL PENAL
CODE § 171 commentary (Tent. Draft No. 4) (1995).
6. See Theodore Y. Blumoff, Rationality, Sanity and the Insanity Defense: Reflections on the Limits of Reason, 39 LAW & PSYCHOL. 161
(2014–15); Stephen Morse & Richard Bonnie, Abolition of the Insanity Defense Violates Due Process, 41 J. AM. ACAD. PSYCHIATRY & L.
448 (2013); ABRAHAM GOLDSTEIN, THE INSANITY DEFENSE 223 (1967); Richard Bonnie, The Moral Basis of the Insanity Defense,
69 A.B.A. J. 194–97 (1983); Bernard Diamond, With Malice Aforethought, 2 ARCHIVES CRIM. PSYCHIATRY 1 (1957); Henry H. Hart,
The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401 (1958).
7. As Fletcher put it, “The issue of insanity requires us to probe our premises for blaming and punishing. In posing the question whether a
particular person is responsible for a criminal act, we are forced to resolve our doubts about whether anyone is ever responsible for criminal
conduct.” GEORGE FLETCHER, RETHINKING CRIMINAL LAW 835 (1978).
8. For an argument that current affirmative defenses afforded people who do not have mental disability, if they are subjectively defined,
adequately capture the universe of people who should be acquitted, see Christopher Slobogin, A Defense of the Integrationist Test as a
Replacement for the Special Defense of Insanity, 42 TEX. TECH L. REV. 523 (2009).
9. After the Hinckley verdict in 1982, more than 40 bills proposing the abolition or modification of the defense were introduced in the
United States Congress, and similar bills were proposed in several state legislatures. See 6 MENTAL DISABILITY L. REP. 340 (1982). An
ABC News poll indicated that 76% of the respondents did not believe that justice had been done in the case. More recent polls indicate that
87% believe the insanity defense allows “too many guilty people to go free.” RALPH SLOVENKO, PSYCHIATRY AND CRIMINAL
CULPABILITY 1, 180 (1995).
10. Richard A. Pasewark et al., Opinions about the Insanity Plea, 8 J. FORENSIC PSYCHIATRY 8 (1981) (finding that the public believes
the defense is asserted in over 30% of all criminal cases); Eric Silver et al., Demythologizing Inaccurate Perceptions of the Insanity Defense, 18
LAW & HUM. BEHAV. 63, 67–68 (1994). See also NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: THE VERDICT
215 (2007) (“Respondents also believe that an average of 36.33 of every 100 defendants who employ the insanity defense are successful”);
Jennifer L. Skeem & Stephen L. Golding, Describing Jurors’ Personal Conceptions of Insanity and Their Relationship to Case Judgments, 7
PSYCHOL. PUB. POL’Y & L. 561, 604 (2001) (79% of participants believed that the defense is often abused and poses a threat to public
safety); Valerie P. Hans, An Analysis of Public Attitudes toward the Insanity Defense, 24 CRIMINOLOGY 393, 403 (1986) (finding that 89.2%
of respondents “agree[d] that the insanity defense is a loophole allowing too many guilty people to go free,” that “88.7% thought the defense
allows dangerous people out on the streets,” and that slightly more than half said “the insane should be punished just like everyone else when
they break the law”); Henry J. Steadman & Joseph J. Cocozza, Selective Reporting and the Public’s Misconceptions of the Criminally Insane, 41
PUB. OPINION Q. 523 (1978).
11. Michigan: Gerald Cooke & Cynthia Sikorski, Factors Affecting Length of Hospitalization of Persons Adjudicated Not Guilty by Reason of
Insanity, 2 BULL. AM. ACAD. PSYCHIATRY & L. 251 (1974) (0.1% for offenses involving serious offenses such as homicide, assault, and
burglary); New York: Hearing before Subcomm. on Criminal Justice of House Comm. on the Judiciary, 97th Cong., 2d Sess. (July 22, 1982)
(statement of Steadman) (0.16% of all felonies); St. Louis, Missouri: John Petrila, The Insanity Defense and Other Mental Health Dispositions in
Missouri, 5 INT’L J.L. & PSYCHIATRY 81 (1982) (0.2% of felonies); Richmond, Virginia: Douglas Hastings & Richard Bonnie, A Survey of
Pretrial Psychiatric Evaluations in Richmond, Virginia, 1 DEV. MENTAL HEALTH & L. 9 (1981) (0.5% of felonies); California: William
Turner & Beverly Ornstein, Distinguishing the Wicked from the Mentally Ill, 3 CAL. L. REV. 42 (1983) (0.6%); Illinois: ILLINOIS DEP’T
OF MENTAL HEALTH, COMM. ON CRIMINAL JUSTICE AND THE MENTAL HEALTH SYSTEM (1982) (0.23%) [hereinafter
ILLINOIS REPORT]; New Jersey: Hearing before Subcomm. on Crim. Justice of House Comm. on the Judiciary, 97th Cong., 2d Sess. (Sept. 9,
1982) (statement of Rodriguez) (0.16%) [hereinafter Rodriguez Statement]; another treatment of the same information is found at Joseph H.
Rodriguez et al., The Insanity Defense under Siege: Legislative Assaults and Legal Rejoinders, 14 RUTGERS L.J. 397 (1983). See generally
Randy Borum & Solomon M. Fulero, Empirical Research on the Insanity Defense and Attempted Reforms: Evidence toward Informed Policy, 23
LAW & HUM. BEHAV. 117, 120 (1999) (“on average the insanity defense is raised in less than 1% of all felony cases”); Jeffrey S. Janofsky et

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al., Defendants Pleading Insanity: An Analysis of Outcome, 17 BULL. AM. ACAD. PSYCHIATRY & L. 203 (1989) (of 11,497 persons
indicted in Baltimore in one year, only 16 [0.001%] maintained the insanity defense until the trial stage, and at trial only two cases were
contested, one being found not guilty by reason of insanity [NGRI] and one found guilty); Stuart M. Kirschner & Gary M. Galperin,
Psychiatric Defenses in New York County: Pleas and Results, 29 BULL. AM. ACAD. PSYCHIATRY & L. 194 (2001) (96 of 96,929 indicted
defendants entered an insanity plea).
12. HENRY STEADMAN ET AL., BEFORE AND AFTER HINCKLEY: EVALUATING INSANITY DEFENSE REFORM (1993)
(showing low rates in California, at 52, and Georgia, at 68 & 107, and a higher rate in Montana, at 126). The high rate in Montana was
apparently due to the fact that postacquittal commitment there tended to be short, and thus the defense was a relatively attractive alternative to
conviction for those charged with minor felonies. Id. at 127 (60% of those found NGRI in Montana were charged with minor felonies), 148
(acquittals were less desirable in New York and California than in Montana, given longer commitment terms in the first two states).
13. See also Grant H. Morris, Placed in Purgatory: Conditional Release of Insanity Acquittees, 39 ARIZ. L. REV. 1061, 1063 (1997) (noting
studies have concluded that “for every 1000 felony cases, insanity is pleaded in approximately nine cases and is successful in only two”).
14. Janet Warren et al., Forensic Mental Health Clinical Evaluation: An Analysis of Interstate and Intersystemic Differences, 21 LAW &
HUM. BEHAV. 377, 382 (1997) (reporting that pretrial MSO evaluations in Michigan, Virginia, and Ohio favored the insanity defense in
only 7%, 9%, and 13% of referrals, respectively); Robert E. Cochrane et al., The Relationship between Criminal Charges, Diagnoses, and Legal
Opinions among Federal Pretrial Defendants, 19 BEHAV. SCI. & L. 565 (2001) (reporting that opinions of insanity were returned in only 12%
of 1,710 evaluations conducted in the United States federal system).
15. S.A. Strauss, Psychiatric Testimony, with Special Reference to Cases of Post-Traumatic Neurosis, 1 FORENSIC SCI. 77, 78 (1978).
16. HENRY STEADMAN & JERALDINE BRAFF, Defendants Not Guilty by Reason of Insanity, in MENTALLY DISORDERED
OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE, 109, 118 (John Monahan & Henry Steadman eds., 1983)
(citing KENNETH FUKUNAGA, THE CRIMINALLY INSANE (1977) (19% acquittal rate in Hawaii); STEADMAN ET AL., supra
note 12, at 53 (40–50% in California from 1979 to 1984), 69 (Georgia, 25–60% from 1976 to 1980), 77 (New York, 15–35% from 1982 to
1987), 128 (Montana, from 15–35% from 1976 to 1979); Carmen Cirincione et al., Rates of Insanity Acquittals and the Factors Associated with
Insanity Pleas, 23 BULL. AM. ACAD. PSYCHIATRY & L. 402 (1995) (seven-state study finding acquittal rates ranging from a low of 0.12
verdicts out of every 100 felony indictments in New York to a high of 0.52 in Washington).
17. Henry Steadman et al., Factors Associated with a Successful Insanity Plea, 140 AM. J. PSYCHIATRY 401 (1983). See also Lisa A.
Callahan et al., The Volume and Characteristics of Insanity Defense Pleas: An Eight-State Study, 19 BULL. AM. ACAD. PSYCHIATRY & L.
331 (1991) (estimated 26% across eight states involved in Steadman study described in text).
18. Steadman et al., supra note 17, at 33. In 1978, there were approximately 2,284,495 felony arrests. FBI UNIFORM CRIME REPORTS,
CRIME IN THE UNITED STATES 185 (1979).
19. In Oregon between 1978 and 1980, 80% of NGRI verdicts were the result of agreements between prosecution and defense and did not
go to trial, 17% were the result of bench trials, and only 3% had gone through a jury trial. Jeffrey Rogers et al., Insanity Defenses: Contested or
Conceded?, 141 AM. J. PSYCHIATRY 885 (1984). A Michigan study found that 90% of those defendants found NGRI were adjudicated in
nonjury trials, often through a quasi-plea-bargaining process. Gare A. Smith & James A. Hall, Evaluating Michigan’s Guilty but Mentally Ill
Verdict, 16 U. MICH. J.L. REF. 77, 94 (1982). See also Robert P. Bogenberger et al., Follow-Up of Insanity Acquittees in Hawaii, 10 INT’L
J.L. & PSYCHIATRY 382 (1987) (72.5% of those found NGRI had a bench trial, 25% were found NGRI based on a plea agreement, and 2%
were found NGRI by juries); Callahan et al., supra note 17 (of NGRI verdicts, 77.2% were by bench trial, 15.8% by plea, and 7.4% by jury);
Andrew Blum, Debunking Myths of the Insanity Plea, NAT’L L.J., Apr. 20, 1992, at 9 (according to a study conducted by Policy Research
Associates, only 7% of NGRI verdicts are delivered by a jury); Carmen Cirincione, Revisiting the Insanity Defense: Contested or Consensus?, 14
BEHAV. SCI. & L. 61 (1996) (multistate study showing that only 14.4% of NGRI adjudications were by jury trial).
20. Hastings & Bonnie, supra note 11 (100% in Richmond, Virginia, in 1976); Richard A. Pasewark et al., Characteristics and Disposition of
Persons Found Not Guilty by Reason of Insanity in New York State, 1971–1976, 136 AM. J. PSYCHIATRY 655, 658 (1979) (68.9% in New
York in 1971–76); John Petrila et al., The Pre-Trial Examination Process in Missouri: A Descriptive Study, 9 BULL. AM. ACAD.
PSYCHIATRY & L. 60 (1981) (65% in Missouri in 1978); Rodriguez Statement, supra note 11 (81% in New Jersey in 1982).
21. Note, Commitment Following an Insanity Acquittal, 94 HARV. L. REV. 605 (1981).
22. See generally James Ellis, The Consequences of the Insanity Defense: Proposals to Reform Post-Acquittal Commitment Law, 35 CATH. U.
L. REV. 1961 (1986).
23. Grant Morris, Acquittal by Reason of Insanity, in MENTALLY DISORDERED OFFENDERS: PERSPECTIVES FROM LAW
AND SOCIAL SCIENCE 65, 70–72 (John Monahan & Henry Steadman eds., 1983); Note, supra note 21, at 605–06.
24. Morris, supra note 23, at 67–68; SAMUEL BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 786–95 (chart)
(1985).
25. Pasewark et al., supra note 20 (finding 40% still hospitalized within 2–12 years of the NGRI finding, with an average stay of three and a

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half years; the average length of stay for those released was 15 months, but those charged with serious crimes were confined on average 1,102
days); Michael Criss & Robert Racine, Impact of Change in Legal Standard for Those Adjudicated Not Guilty by Reason of Insanity, 1975–1979 in
Michigan, 8 BULL. AM. ACAD. PSYCHIATRY & L. 261, 266–67 (1981) (25% of those found NGRI were still confined five years after
passage of liberal release provisions). See also Lee J. Baldwin et al., Factors Influencing Length of Hospitalization for NGRI Acquittees in a
Maximum Security Facility, 20 J. PSYCHIATRY & L. 257 (1992).
26. ILLINOIS REPORT, supra note 11 (indicating that adding hospitalization for incompetence doubled the average length of stay for
those found NGRI).
27. Mark L. Pantle et al., Comparing Institutionalization Periods and Subsequent Arrests of Insanity Acquittees and Convicted Felons, 8 J.
PSYCHIATRY & L. 305 (1980) (New York: no appreciable difference); STEADMAN ET AL., supra note 12, at 98 (New York: no
appreciable difference); Eric Silver, Punishment or Treatment?: Comparing the Lengths of Confinement of Successful and Unsuccessful Insanity
Defendants, 19 LAW & HUM. BEHAV. 375, 382 (Table 3) (1995) (New York: over twice as long for those found NGRI); STEADMAN
ET AL., supra note 12, at 59 (California: roughly similar); Rodriguez Statement, supra note 11 (New Jersey: roughly similar); Harris et al.,
Length of Detention in Matched Groups of Insanity Acquittees and Convicted Offenders, 14 INT’L J.L. & PSYCHIATRY 223 (1991) (several
states: roughly similar).
28. STEADMAN ET AL., supra note 12, at 117 (Georgia: felons confined twice as long); Betty L. Phillips & Richard A. Pasewark,
Insanity Pleas in Connecticut, 8 BULL. AM. ACAD. PSYCHIATRY & L. 335 (1980) (those found NGRI released 19 months earlier on
average); Barbara E. McDermott & John W. Thompson Jr., The Review Panel Process: An Algorithm for the Conditional Release of Insanity
Acquittees, 29 INT’L J.L. & PSYCHIATRY 101, 102 (2006) (citing research showing that some insanity acquittees serve less time than
defendants convicted on similar charges, while others serve more time); Richard A. Pasewark et al., Detention and Rearrest Rates of Persons
Found Not Guilty by Reason of Insanity and Convicted Felons, 139 AM. J. PSYCHIATRY 892 (1982) (New York: those found NGRI released
10 months earlier).
29. Some have speculated that the long length of stay for defendants found NGRI reflects “an underlying punishment model.” Jocelyn A.
Lymburner & Ronald Roesch, The Insanity Defense: Five Years of Research (1993–1997), 22 INT’L J.L. & PSYCHIATRY 213, 228 (1999).
Other factors, including treating hospital staff’s fear of legal consequences in the event that a patient found NGRI and released harms someone
in the community, may also contribute to longer lengths of stay. See Norman G. Poythress & Stanley L. Brodsky, In the Wake of a Negligent
Release Lawsuit: An Investigation of Professional Consequences and Institutional Impact on a State Psychiatric Hospital, 16 LAW & HUM.
BEHAV. 155 (1992).
30. Those studies finding that those declared NGRI had a lower recidivism rate include Michael Norko et al., Assessing Insanity Acquittee
Recidivism in Connecticut, 34 BEHAV. SCI. & L. 423 (2016) (stating that under the Connecticut conditional release program for those found
NGRI over a 30-year period, there had been no rearrests for felonies, two misdemeanor convictions, and two dismissed charges); Richard
Miraglia & Donna Hall, The Effect of Length of Hospitalization on Re-Arrest among Insanity Plea Acquittees, 39 J. AM. ACAD.
PSYCHIATRY & L. 524 (2011) (finding, for males, a rearrest rate of 14% for NGRI releases and 56% among released prisoners); Stuart B.
Silver et al., Follow-Up after Release of Insanity Acquittees, Mentally Disordered Offenders, and Convicted Felons, 17 BULL. AM. ACAD.
PSYCHIATRY & L. 387 (1989) (finding that rearrest rate for defendants declared NGRI was significantly lower than the rearrest rate of
convicted felons and of mentally disordered prisoners transferred for hospital treatment); Phillips & Pasewark, supra note 28 (recidivism rates
about even); Pantle et al., supra note 27; Pasewark et al., supra note 20. In the latter two studies, however, those found NGRI who reoffended
repeated more often than the felons. The measures of recidivism are limited in all these studies. As indicated in § 9.09(b)(3), the official records
(of arrests, etc.) used in these studies to determine recidivism are relatively weak measures of criminality and tend to represent police efficiency
as much as subject behavior.
31. See, e.g., Stephen L. Bieber et al., Predicting Criminal Recidivism of Insanity Acquittees, 11 INT’L J.L. & PSYCHIATRY 105 (1980);
Marnie E. Rice et al., Recidivism among Male Insanity Acquittees, 18 J. PSYCHIATRY & L. 379 (1990).
32. Joseph J. Cocozza et al., Trends in Violent Crime among Ex-Mental Patients, 16 CRIMINOLOGY 317 (1978).
33. Alan R. Felthous, Enforced Medication in Jails and Prisons: The New Asylums, 8 ALB. GOV’T L. REV. 563, 589 (2015) (noting that
“one explanation for the impressive success of conditional release programs for insanity acquittees is their flexibility in allowing for involuntary
hospitalization for medication non-compliance or early signs of decompensation, a measure that is not used for most seriously mentally ill in the
community or in correctional facilities”); Morris, supra note 23, at 1074 (reporting a study in which, across a three-year period, “the
conditionally released patients had a significantly lower rearrest rate—but a significantly higher rehospitalization rate—than did the group
discharged without conditional release”). See also James Luettgen et al., Preventing Violent Reoffending in the Not Criminally Responsible
Patients: An Evaluation of a Continunity of Treatment Program, 21 INT’L. J.L. & PSYCHIATRY 89, 93 (1998) (reporting a reoffending rate
of only 7.3%, but a rehospitalization rate of 92.4%).
34. KAN. STAT. ANN. § 22-3220 (1995); 18 IDAHO CODE § 107 (1982); MONT. LAWS ch. 713 (1979); UTAH CODE ANN. §
76-2-304.5 (1983). Nevada also abolished the defense, NEV. STAT. ANN. § 174.035 (1997), but the Nevada Supreme Court reinstated it,

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Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001).
35. JOHN W. JONES, THE LAW AND LEGAL THEORY OF THE GREEKS 264 (1965); Anthony Platt & Bernard Diamond, The
Origins and Development of the “Wild Beast” Concept of Mental Illness and Its Relation to Theories of Criminal Responsibility, 1 J. HIST.
BEHAV. SCI. 355 (1965).
36. Loftus E. Becker, Durham Revisited: Psychiatry and the Problem of Crime, in DIAGNOSIS AND DEBATE 43 (Richard Bonnie ed.,
1977).
37. Id. at 44.
38. SIR MATTHEW HALE, PLEAS OF THE CROWN 14 (1847 ed.).
39. The “wild beast” language originated with Lord Bracton in 1265. J. BIGGS, THE GUILTY MIND 82 (1955).
40. Rex v. Arnold, 16 How. St. Tr. 695 (1724).
41. Anthony Platt & Bernard Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility, 54 CAL. L. REV. 1227
(1966).
42. 10 Cl. & F. 200, 8 Eng. Rep. 718 (H.L. 1843).
43. ISAAC RAY, A TREATISE ON THE MEDICAL JURISPRUDENCE OF INSANITY (1833), cited in Becker, supra note 36, at
50.
44. See id. at 34.
45. A. ZILBOORG, MIND, MEDICINE AND MAN 273 (1943).
46. Parsons v. State, 81 Ala. 577, 596, 2 So. 854 (1886).
47. See GOLDSTEIN, supra note 6, at 13; JAMES F. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 168
(1883). Although the volitional prong developed after the M’Naghten test, in the United States a number of states adopted a lack-of-volition
test at virtually the same time they adopted a lack-of-knowledge test. See HENRY WEIHOFEN, MENTAL DISORDER AS A
CRIMINAL DEFENSE 100–03 (1954).
48. See, e.g., Commonwealth v. Woodhouse, 16 A.2d 98, 106 (Pa. 1960); Sollars v. State, 316 P.2d 917, 920 (Nev. 1957); Robert Waelder,
Psychiatry and the Problems of Criminal Responsibility, 101 U. PA. L. REV. 378, 383 (1952); Barbara Wootton, Book Review, 77 YALE L.J.
1019, 1026–27 (1968) (reviewing ABRAHAM S. GOLDSTEIN, THE INSANITY DEFENSE [1967]).
49. SHELDON GLUECK, LAW AND PSYCHIATRY 54, 57–58 (1962); HENRY WEIHOFEN, MENTAL DISORDER AS A
CRIMINAL DEFENSE 85 (1954).
50. Durham v. United States, 214 F.2d 862, 873–74 (D.C. Cir. 1954); Herbert Wechsler, The Criteria of Criminal Responsibility, 22 U.
CHI. L. REV. 367, 375 (1954).
51. State v. Jones, 50 N.J. 369 (1871).
52. 214 F.2d 862 (D.C. Cir. 1954).
53. David L. Bazelon, Equal Justice for the Unequal (Isaac Ray Award Lecture, 1961), reprinted in DAVID L. BAZELON,
QUESTIONING AUTHORITY: JUSTICE AND CRIMINAL LAW (1988).
54. See, e.g., Blocker v. United States, 288 F.2d 853, 859 (D.C. Cir. 1961); O’Beirne v. Overholser, 193 F. Supp. 652, 660 (D.D.C. 1961).
55. See Becker, supra note 36, at 57, for a description of this event.
56. Richard Arens, The Durham Rule in Action: Judicial Psychiatry and Psychiatric Justice, 2 LAW & SOC’Y REV. 41 (1967) (acquittal rate
went from 0.5 to 2.5%); Abe Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 YALE
L.J. 905, 948 (1961).
57. 312 F.2d 847 (D.C. Cir. 1962).
58. Id. at 850–51.
59. United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972).
60. Maine adopted the “product” test in 1964, ME. REV. STAT. ANN. tit. 15, § 102 (1964), but repealed its statute and adopted a
modified version of the ALI test in 1975, ME. REV. STAT. ANN. tit. 17 A, § 58 (1975).
61. MODEL PENAL CODE § 401(1) (Tent. Draft No. 4) (1955).
62. MODEL PENAL CODE § 4.01 comment.
63. MODEL PENAL CODE § 4.01(2).
64. United States v. Brawner, 471 F.2d 969, 1029 (D.C. Cir. 1972) (Bazelon, J., concurring) (“At no point in its opinion does the court
explain why the boundary of a legal concept—criminal responsibility—should be marked by medical concepts, especially when the validity of the
‘medical model’ is seriously questioned by some eminent psychiatrists”).
65. See David L. Bazelon, The Morality of Criminal Law, 49 U.S.C. L. REV. 385 (1976).
66. For instance, Moore has proposed that insanity be equated simply with “irrationality,” with the latter term defined according to the
intelligibility, consistency, and coherence of the beliefs leading to the crime. MICHAEL MOORE, LAW AND PSYCHIATRY 244–45, 207

988
(1985). Morse has stated that “[r]ationality . . . is the most general, important prerequisite to being morally responsible.” Stephen J. Morse,
Immaturity and Irresponsibility, 88 J. CRIM. L. & CRIMINOLOGY 15, 24 (1997).
67. But see State v. Johnson, 399 A.2d 469, 476 (R.I. 1979) (adding “mental disease or defect” predicate to Bazelon’s responsibility test).
68. AM. BAR ASS’N (ABA), CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-6.1 (1984) [hereinafter 1984 ABA
STANDARDS]; AM. PSYCHIATRIC ASS’N, STATEMENT ON THE INSANITY DEFENSE 12 (1982) [hereinafter PSYCHIATRIC
STATEMENT]. This provision was reaffirmed when the standards were revised. See ABA, CRIMINAL JUSTICE MENTAL HEALTH
STANDARDS, std. 7-6.1 (2d ed. 2016) [hereinafter 2016 ABA STANDARDS].
69. 1984 ABA STANDARDS, supra note 68, at 329–32; PSYCHIATRIC STATEMENT, supra note 68, at 11.
70. 1984 ABA STANDARDS, supra note 68, at 341.
71. Bonnie, supra note 6, at 196–97.
72. 18 U.S.C. § 402 (1984). Another difference between the two is that the ABA is agnostic about the party that should bear the burden on
the insanity issue, while the federal statute places the burden of proving insanity on the defendant by clear and convincing evidence [see §
8.02(c)(5)].
73. See Clark v. Arizona, 548 U.S. 735, 749–752 (2006); John H. Blume & Sheri Lynn Johnson, Killing the Non-Willing: Atkins, the
Volitionally Incapacitated and the Death Penalty, 55 S.C. L. REV. 93, 140–41 (2003) (summarizing state insanity law). For a more current
listing, see Paul H. Robinson, The Effect of Mental Illness under U.S. Criminal Law, 65 N. IRELAND LEGAL Q. 229, 232 (2014).
74. See, e.g., State v. Korell, 690 P.2d 992 (Mont. 1984); State v. Searcy, 798 P.2d 914 (Idaho 1990); State v. Herrera, 895 P.2d 359 (Utah
1995); State v. Behtel, 66 P.3d 840 (Kan. 2003). But see Finger v. State, 27 P.3d 66 (Nev. 2001).
75. 548 U.S. 735 (2006).
76. Id. at 752.
77. Id. at 742.
78. RITA SIMON, THE JURY AND THE DEFENSE OF INSANITY 215 (1967).
79. Norman Finkel et al., Insanity Defenses from the Jurors’ Perspective, 9 LAW & PSYCHOL. REV. 77 (1985). See also Norman Finkel &
Christoper Slobogin, Insanity Justification and Culpability: Toward a Unifying Schema, 19 LAW & HUM. BEHAV. 447 (1995) (comparing
the federal and ALI tests).
80. Ingo Keilitz, Researching and Reforming the Insanity Defense, 39 RUTGERS L. REV. 47, 57–61 (1987).
81. STEADMAN ET AL., supra note 12, ch. 4.
82. 1984 ABA STANDARDS, supra note 68, at 343.
83. See, e.g., United States v. Brawner, 471 F.2d 969, 994 (D.C. Cir. 1972) (Bazelon, J., concurring); SEYMOUR HALLECK,
PSYCHIATRY AND THE DILEMMAS OF CRIME 341–42 (1967). Professor Norval Morris makes much the same point, but argues
from this premise that the insanity defense should be eliminated rather than expanded: “It is hard to see why a special rule . . . should be made
for the mentally ill.” MORRIS, supra note 3, at 61.
84. MOORE, supra note 66, chs. 2, 6, argues that one’s environment is usually irrelevant to responsibility determinations because it does not
normally disturb one’s capacity for rational action, which, he argues, is the only criterion by which we can assess illness and criminal culpability.
85. Durham v. United States, 214 F.2d 862 (1954).
86. DONALD H.J. HERMANN, THE INSANITY DEFENSE: PHILOSOPHICAL, HISTORICAL, AND LEGAL
PERSPECTIVES 129 (1983) (“[I]t is a common feature of [insanity] tests that they lack significant definition or provision of non-normative
criteria for the concept ‘mental disease’).
87. See, e.g., State v. Flake, 114 S.W.3d 487 (Tenn. 2003) (interpreting statutory requirement of “severe mental disease or defect”);
McDonald v. United States, 312 F.2d 847, 851 (D.C. Cir. 1962); Snider v. Smith, 187 F. Supp. 299 (1960); GOLDSTEIN, supra note 6, at
48.
88. Wood v. State, 804 N.E.2d 1182 (Ind. App. 2004) (upholding that court’s refusal of temporary insanity instruction); Lee v. Thompson,
452 F. Supp. 165, 167–68 (1977); Government of the Virgin Islands v. Downey, 396 F. Supp. 349 (D.V.I. 1975).
89. Reyna v. State, 11 S.W.3d 401 (Tex. App. 2000) (holding that even intoxication that renders defendant unaware of wrongfulness of act
only “mitigates” penalty); Kane v. United States, 399 F.2d 730, 733–36 (9th Cir. 1969); State v. Hall, 214 N.W.2d 205 (Iowa 1974); People v.
Kelly, 10 Cal. 3d 565, 517 P.2d 875, 111 Cal. Rptr. 171 (1973); Beasley v. State, 50 Ala. 149 (1874).
90. S. REP. No. 98-225, at 229 (1983).
91. ME. REV. STAT. ANN. ch. 149, § 39-A; Stacia E. Reynolds, Battle of the Experts Revisited: 1983 Oregon Legislation on the Insanity
Defense, 20 WILLAMETTE L. REV. 303 (1984).
92. CONN. PUB. ACTS 83-386 (1983).
93. See, e.g., MICH. COMP. LAWS §§ 768.21a(a), 330.1400a.
94. PSYCHIATRIC STATEMENT, supra note 68, at 12. The ABA version is found in the 2016 ABA STANDARDS, supra note 68,

989
std. 7-6.1, which defines “mental disorder” as “any disorder that substantially affected the mental or emotional processes of the defendant at the
time of the alleged offense, unless it was a disorder manifested primarily by repeated criminal conduct or was attributable solely to the acute
effects of voluntary use of alcohol or other drugs.”
95. GOLDSTEIN, supra note 6, at 33.
96. See, e.g., Jules B. Gerard, The Usefulness of the Medical Model to the Legal System, in ALEXANDER BROOKS & BRUCE WINICK,
CURRENT ISSUES IN MENTAL DISABILITY LAW 135, 154–68 (1987).
97. See generally Henry F. Fradella, From Insanity to beyond Diminished Capacity: Mental Illness and Criminal Excuse in the Post-Clark Era,
18 U. FLA. J. L. & PUB. POL’Y 7, 43–44 (2007) (noting that “some states have very broad definitions of mental illnesses for purposes of an
insanity defense,” and providing Alaska and Kentucky as examples).
98. People v. Doan, 141 Mich. App. 209, 366 N.W.2d 593 (1985).
99. N. J. Schweitzer et al., Neuroimages as Evidence in a Mens Rea Defense: No Impact, 17 PSYCHOL. PUB. POL’Y & L. 357, 387–88
(2011) (finding, more specifically, that while images of brains are not necessarily influential in and of themselves, expert evidence that invokes
neurological explanations for behavior tends to be more persuasive than evidence relying on “clinical psychological explanation”).
100. See also Phillips & Pasewark, supra note 28 (recounting that in Connecticut between 1970 and 1972, 40% of those found NGRI had
personality disorders).
101. WAYNE R. LAFAVE, CRIMINAL LAW 399 (5th ed. 2010).
102. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 25 (5th ed. 2013)
[hereinafter DSM-5].
103. Carter v. United States, 252 F.2d 608, 616 (D.C. Cir. 1957).
104. MOORE, supra note 66, chs. 1, 2, 6, 9, 10.
105. See, e.g., Michael Louis Corrado, Responsibility and Control, 34 HOFSTRA L. REV. 59, 79 (2005); Michael Louis Corrado,
Automatism and a Theory of Action, 39 EMORY L.J. 1991 (1990); Lloyd Weinreb, Desert, Punishment and Criminal Responsibility, 49 LAW
& CONTEMP. PROBS. 47, 61 N. 27 (1986); John L. Hill, Freedom, Determinism, and the Externalization of Responsibility in the Law: A
Philosophical Analysis, 76 GEO. L.J. 2045, 2059 (1988).
106. Scott W. Howe, Reassessing the Individualization Mandate in Capital Sentencing: Darrow’s Defense of Leopold and Loeb, 79 IOWA L.
REV. 994, 1033 (1994). See also Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral
Accountability, 39 UCLA L. REV. 1511, 1524–25 (1992):

[A] threshold conception of moral agency—one suitable for moral norms implicated by mala in se crimes—must include the following
character-based attributes: the capacity to care for the interests of other human beings; the internalization of others’ normative expectations,
including self-identification as a participant in the community’s blaming practices; the ability to engage in moral evaluation of one’s character
and acts; the capacity to respond to moral norms as a motivation for one’s choices; and the power to control those firmly entrenched aspects
of character that impair one’s ability to act in accordance with one’s moral judgments.

107. For further explication of Moore’s thesis, see Christopher Slobogin, A Rational Approach to Responsibility, 83 MICH. L. REV. 820
(1985).
108. MODEL PENAL CODE § 4.01 comment (Tent. Draft No. 4) (1955).
109. Francis Allen, The Rule of the American Law Institute’s Model Penal Code, 45 MARQ. L. REV. 494, 501 (1972).
110. GOLDSTEIN, supra note 6, at 49–53.
111. Id. at 50. More recent scholarship comes to the same conclusion. See Joshua Dressler, UNDERSTANDING CRIMINAL LAW 350
(5th ed. 2009) (describing “the broad definition of ‘know’ [as requiring] only that defendants have ‘affective knowledge’ of their action[, which]
is absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she acts, i.e., can
internalize the enormity of the criminal act and, thus, emotionally appreciate its wrongfulness”).
112. GOLDSTEIN, supra note 6, at 51–53. See generally State v. Singleton, 48 A.3d 285, 295 (N.J. 2012) (noting that “a majority of states
following the M’Naghten test have interpreted ‘wrong’ as encompassing . . . moral wrong”).
113. MODEL PENAL CODE § 4.01 comment (Tent. Draft No. 4) (1955).
114. See, e.g., State v. Wilson, 700 A.2d 633, 643 (1997); Cruse v. State, 588 So.2d 983, 989 (Fla. 1991).
115. See, e.g., State v. Crenshaw, 98 Wash.2d 789, 659 P.2d 488 (1983).
116. 216 N.Y. 324, 110 N.E. 945 (1915).
117. Grant H. Morris & Ansar Haroun, “God Told Me to Kill”: Religion or Delusion?, 38 SAN DIEGO L. REV. 973, 978 (2001).
118. Becker, supra note 36, at 46–48.
119. Id. at 48–49. See United States v. Freeman, 357 F.2d 606, 615–18 (2d Cir. 1966), for a slightly different view of the M’Naghten case.
120. See, e.g., United States v. Kunak, 17 C.M.R. 346, 357–58 (1954).

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 121. GOLDSTEIN, supra note 6, at 70–75.
122. See Robinson, supra note 73, at 232; Clark v. Arizona, 548 U.S. 735, at 751.
123. PSYCHIATRIC STATEMENT, supra note 68, at 11. These sentiments echo those of many scholars, among them Wootton, who
noted that “[i]t is indeed apparent that some people, such as sadistic sexual perverts, suffer from temptations from which others are immune,
[b]ut the fact that the impulse is unusual is no proof that it is irresistible.” Wootton, supra note 48, at 1026–27. See also United States v. Lyons,
731 F.2d 243, 248–49 (5th Cir. 1984).
124. See Richard Rogers, Empiricism v. Emotionalism, 42 AM. PSYCHOLOGIST 840, 841–42 (1987).
125. Thompson v. Commonwealth, 193 Va. 704, 717, 70 S.E.2d 284, 291–92 (1952). See also Turner v. State, 809 So. 2d 59, 61 (Fla. App.
2002) (“Unrestrained passion or ungovernable temper is not insanity”).
126. United States v. Chandler, 393 F.2d 920 (4th Cir. 1968).
127. United States v. Smeaton, 762 F.2d 796, 798–99 (9th Cir. 1985).
128. Thompson v. Commonwealth, 193 Va. 704, 717, 70 S.E.2d 284, 292 (1952); Rollins v. Commonwealth, 207 Va. 580, 151 S.E.2d 625
(1966).
129. Commonwealth v. Mosler, 4 Pa. 264 (1846).
130. United States v. Lewellyn, 723 F.2d 615 (8th Cir. 1983). See also Coffman v. United States, 290 F.2d 212 (5th Cir. 1961).
131. Blake v. United States, 407 F.2d 908 (5th Cir. 1969); see also United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967) (stating that the
volitional prong does not call for “complete destruction of the power to control one’s acts,” in reversing the conviction of a person with a “very
impulsive personality with very weak control”).
132. See United States v. Smith, 404 F.2d 720, 725 (6th Cir. 1968); Wion v. United States, 325 F.2d 420, 426 n.7 (10th Cir. 1963). Both
decisions quote from Warren Burger, Comments on Psychiatry and the Law, 32 F.R.D. 547, 560 (1962).
133. ROBERT SCHOPP, AUTOMATISM, INSANITY, AND THE PSYCHOLOGY OF CRIMINAL RESPONSIBILITY: A
PHILOSOPHICAL INQUIRY 165–174 (1991).
134. Stephen Morse, Culpability and Control, 142 U. PA. L. REV. 1587, 1619–34 (1994).
135. See, e.g., Jodie English, The Light between Twilight and Dusk: Federal Criminal Law and the Volitional Insanity Defense, 40 HASTINGS
L.J. 1, 13 (1988) (describing Aristotle’s views); 4 BLACKSTONE’S COMMENTARIES 20 (1803).
136. Governor’s Task Force to Review the Defense of Insanity, State of Maryland, reported in RITA SIMON & DAVID E.
AARONSON, THE INSANITY DEFENSE 167 (1988).
137. See Slobogin, supra note 107, at 830 (noting that under Moore’s definition of insanity, which asks simply whether the person was
irrational, the degree to which one is “compelled” is irrelevant, unless the compulsion creates irrational thinking).
138. See, e.g., MOORE, supra note 66, at 374 (speaking of unconscious compulsion as an “excuse in its own right”).
139. For two relatively recent articles supporting that position, see Richard Redding, The Brain-Disordered Defendant: Neuroscience and the
Insanity Test in the Twenty-First Century, 56 AM. CRIM. L. REV. 51, 87 (2006) (“Control tests are needed to ensure that defendants with
FLD [frontal lobe disorder] have the opportunity to prove that they lacked criminal responsibility for the charged offense, a right that is
essential in our system of retributive justice”), and Michael Corrado, The Case for a Purely Volitional Insanity Defense, 41 TEX. TECH L.
REV. 481 (2009).
140. For information of burdens and standards of proof on the insanity issue as of 2004, see BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, STATE COURT ORGANIZATION 200 (Table 35) (2004), available at
http://www.bjs.gov/content/pub/pdf/sco04.pdf.
141. 18 U.S.C. § 402(b) (1984).
142. See generally Addington v. Texas, 441 U.S. 418 (1979); PSYCHIATRIC STATEMENT, supra note 68, at 12–13.
143. Steadman et al. found that changing the burden and standard of proof in Georgia and New York did not reduce the success rate of
insanity pleas, although it did reduce the use of the plea. STEADMAN ET AL., supra note 12, ch. 5.
144. See generally Jordan Berman, Overworking the Presumption of Sanity: Clark’s Use of Mental Disease Evidence to Negate Mens Rea, 55
UCLA L. REV. 467, 472–75 (2007).
145. Id. See, e.g., United States v. Dresser, 542 F.2d 737, 742 n.2 (8th Cir. 1976).
146. See LAFAVE, supra note 101, at 491–92. For one of the first cases to so hold, see Fain v. Commonwealth, 78 Ky. 183 (1879); H.M.
Advocate v. Fraser, 4 Couper 70 (1878).
147. See generally LAFAVE, supra note 101, at 492–93. Most of the decisions finding automatism in such cases are British or Canadian. But
see Peavey v. State, 248 S.W.3d 455, 465–66 (Tex. App. 2008); State v. Cabrera, 891 A.2d 1066 (Del. Sup. 2005); State v. Bush, 164 N.C.
App. 254, 595 S.E.2d 715, 722 (2004); Fulcher v. State, 633 P.2d 142 (Wyo. 1981); Featherstone v. Clark, 293 F. Supp. 508 (W.D. 1978);
Sprague v. State, 52 Wis. 2d 89, 187 N.W.2d 784 (1971); Government of the Virgin Islands v. Smith, 278 F.2d 169 (3d Cir. 1960).
148. Tift v. State, 17 Ga. App. 663, 88 S.E. 41 (1916). Cf. State v. Gooze, 14 N.J. Super. 277, 81 A.2d 811 (1951); People v. Decina, 2 N.Y.

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2d 133 157 N.Y.S. 2d 558, 138 N.E.2d 799 (1956).
149. The pertinent cases tend to deal with intoxication issues. See, e.g., United States v. Henderson, 680 F.2d 659, 661–62 (9th Cir. 1982)
(insanity brought about by voluntary intoxication is not a defense); United States v. Burnim, 576 F.2d 236 (9th Cir. 1978) (insanity defense is
unavailable to defendant whose insanity was the product of voluntary intoxication); cf. State v. Maik, 60 N.J. 203, 215–16, 287 A.2d 715, 721–
22 (1972) (although culpability in causing insanity was at issue, the court refused to consider the etiology of the disease).
150. See, e.g., LAFAVE, supra note 101, at 497 (making this point in discussing the Bratty case, infra note 151).
151. Bratty v. Attorney-General for Northern Ireland, 3 All E.R. 535 (1961); Regina v. Kemp, 3 All E.R. 249 (1956). This concern over
disposition has also given rise to the rather strange distinction, prevalent in Commonwealth countries but fortunately nonexistent here, between
“sane automatism” (e.g., sleepwalking) and “insane automatism” (e.g., dissociation). See generally W.H. Holland, Automatism and Criminal
Responsibility, 25 CRIM. L.Q. 95 (1982) (a Canadian publication).
152. See Melissa Hamilton, Reinvigorating Actus Reus: The Case for Involuntary Actions by Veterans with Post-Traumatic Stress Disorder, 16
BERKELEY J. CRIM. L. 340, 352–61 (2011).
153. See, e.g., Hollander v. State, 296 N.E.2d 449, 451–52 (Ind. Ct. App. 1973) (holding that automatism, in this instance a “fugue” state of
mind, is a species of insanity defense), overruled by McClain, 678 N.E.2d at 106 n.4 (Ind. 1997); Futrell v. Commonwealth, 437 S.W.2d 487,
489 (Ky. Ct. App. 1969) (holding that defendant’s contention that he was suffering a “blackout” when he molested a young girl was adequately
covered by insanity defense instructions and did not require jury instructions on unconsciousness); State v. Bunk, 73 A.2d 249, 255 (N.J. 1950)
(referring to a defense of unconsciousness due to “a syncope or blackout spell” as a type of insanity defense and holding that the trial court did
not err in refusing the defendant’s requested changes in jury instructions concerning insanity). But see Smith v. State, 663 S.E.2d 155, 157 (Ga.
2008) (overturning trial court ruling that defendant’s theory that a physiological sleep disorder caused him to murder his wife without being
aware of what he was doing was an insanity defense, and instead holding that the defense went to the actus reus and mens rea elements).
154. DSM-5, supra note 102, at 292.
155. See, e.g., Washington v. Wheaton, 850 P.2d 507 (Wash. 1993).
156. See, e.g., United States v. Denny-Shaffer, 2 F.3d 999 (10th Cir. 1993).
157. Elyn Saks, Multiple Personality Disorder and Criminal Responsibility, 25 U.C. DAVIS L. REV. 383, 452–54 (1992). On the other
hand, Saks would not allow conviction even when the host sanely commits the crime, unless “the appearance of other alters is so extremely
limited that punishing the person-body does not seem problematic.” Id. This rule is less likely to be accepted by a court, for obvious reasons.
158. Deborah Denno, Crime and Consciousness: Science and Involuntary Acts, 87 MINN. L. REV. 269 (2002).
159. MODEL PENAL CODE § 2.02 (Official Draft) (1962).
160. The ABA has criticized the use of this term, because it suggests that clinical testimony on the issue of mens rea is a “doctrine” like the
insanity defense, when in fact it is merely an evidentiary rule that permits relevant testimony on an issue pertinent to most criminal trials. 1984
ABA STANDARDS, supra note 68, std. 7-6.2 and commentary. Though we agree with the ABA’s position, many jurisdictions do not (see
below). As a result, we continue to use the term “diminished capacity” as a shorthand designation for the various exceptions to the evidentiary
principle noted below.
161. 64 Cal. 2d 310, 518 P.2d 341, 49 Cal. Rptr. 815 (1974).
162. 471 F.2d 923 (D.C. Cir. 1972).
163. See, e.g., People v. Wolff, 61 Cal. 2d 795, 394 P.2d 959, 40 Cal. Rptr. 271 (1964); People v. Conley, 64 Cal. 2d 310,411 P.2d 911, 49
Cal. Rptr. 815 (1966). See generally Peter Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a
Doomed Marriage, 77 COLUM. L. REV. 827 (1977).
164. CAL. PENAL CODE §§ 188, 189.
165. As noted in Chapter 9, more than two-thirds of the states that have the death penalty follow the Model Penal Code’s formulation in
requiring the sentencing authority to consider as possible “mitigating factors” (1) whether the capital offense “was committed while the
defendant was under the influence of extreme mental or emotional disturbance”; and (2) whether at the time of the offense, cognitive or
volitional impairment was impaired by mental disease or defect or intoxication. See Mary Bicknell, Constitutional Law: The Eighth Amendment
Does Not Prohibit the Execution of Mentally Retarded Convicts, 43 OKLA. L. REV. 357 n.129 (1990).
166. Because of the latter difficulty, Morse has proposed that a person who can show diminished responsibility arbitrarily receive half the
punishment normally received for the crime. Stephen Morse, Diminished Capacity: A Moral and Legal Conundrum, 2 INT’L J.L. &
PSYCHIATRY 271 (1979).
167. See note 170 infra.
168. The Insanity Defense Reform Act of 1984 states that, aside from the insanity defense described in the act, “[m]ental disease or defect
does not otherwise constitute a defense.”18 U.S.C. § 20(a).
169. A third, much less persuasive reason given by the courts that reject the diminished capacity doctrine is that people who lack mens rea
due to mental disease or defect are not entitled to exculpation. As the court stated in State v. Johnson, 292 Md. 405, 439 A.2d 542 (1982), “The

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introduction of expert psychiatric testimony concerning the defendant’s mental aberrations when the basic sanity of the accused is not at issue
conflicts with the governing principle of the criminal law that all legally sane individuals are equally capable of forming and possessing the same
types and degrees of intent.” Of course, this type of tautological reasoning proves nothing.
170. See Robinson, supra note 73, at 238 (reporting that as of 2014, roughly 70% of the states permitted clinical testimony about mens rea).
But see infra notes 182–85 and accompanying text.
171. 538 U.S. 735 (2006).
172. State v. Hines, 445 A.2d 314 (Conn. 1982); Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976); People v. Wetmore, 22 Cal. 3d 318,
583 P.2d 1308, 149 Cal. Rptr. 265 (1978).
173. See Sandstrom v. Montana, 442 U.S. 510 (1979).
174. See Hughes v. Mathews, 576 F.2d 1250 (7th Cir.), cert. dismissed sub nom. Israel V. Hughes, 439 U.S. 801 (1978). Cf. Muench v.
Israel, 715 F.2d 1124 (7th Cir. 1983). In Montana v. Egelhoff, 518 U.S. 37 (1996), the Supreme Court rejected both of these arguments when
made in support of a “voluntary intoxication” defense. However, it based this rejection largely on the grounds that the intoxication defense is of
relatively “recent vintage.” Defenses based on mental illness obviously are not [see § 8.02(b)], although the specific defense of diminished
capacity defense is a very recent development. For more discussion of Egelhoff, see § 8.03(e), which examines the voluntary intoxication defense.
175. 538 U.S. at 778.
176. 463 U.S. 880 (1983).
177. 538 U.S. at 760.
178. Id.
179. Id. at 783 (Kennedy, J., dissenting).
180. See, e.g., Rock v. Arkansas, 483 U.S. 44 (1987) (finding violative of the confrontation and due process clauses a statute which
unequivocally banned hypnotically induced testimony); Delaware v. Van Arsdall, 475 U.S. 673 (1986) (finding violative of the confrontation
clause a state court ruling that prohibited all inquiry into bias of a prosecution witness).
181. See, e.g., Simpson v. State, 381 N.E.2d 122 (Ind. 1978); People v. Loving, 258 Cal. App. 2d 84, 65 Cal. Rptr. 425 (1968); Bradshaw v.
State, 353 So. 2d 188 (Fla. App. 1st Dist. 1978); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202 (1979).
182. See, e.g., United States v. Bright, 517 F.2d 584 (2d Cir. 1975).
183. Massachusetts and Texas clearly impose this limitation. The cases permitting expert testimony on mens rea in Pennsylvania, Nevada,
New Mexico, Rhode Island, and Washington were homicide cases, leaving it unclear whether they would restrict the use of such testimony to
homicide charges only.
184. See Robinson, supra note 73, at 238 (stating that as of 2014, roughly 30% of the states limited clinical testimony about mens rea to
specific intent crimes, and 40% permitted it on any subjective element of an offense). The situation in Model Penal Code jurisdictions is more
complicated than the text suggests. As defined in the Code, both recklessness and negligence have subjective elements. See MODEL PENAL
CODE §§ 2.02(2)(c) and (d). Thus, technically, evidence of mental impairment might even be admissible to negate these mental states. See
generally CHRISTOPHER SLOBOGIN ET AL., LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND CRIMINAL
ASPECTS 694–701 (6th ed. 2014).
185. Clark v. Arizona, 548 U.S. at 778 n.45 (“if substantial mental-disease and capacity evidence is accepted as rebutting mens rea in a given
case, the affirmative defense of insanity will probably not be reached or ruled upon; the defendant will simply be acquitted (or perhaps convicted
of a lesser included offense). If an acquitted defendant suffers from a mental disease or defect that makes him dangerous, he will neither be
confined nor treated psychiatrically unless a judge so orders after some independent commitment proceeding”).
186. See Richard Bonnie & Christopher Slobogin, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed
Speculation, 66 VA. L. REV. 427, 473–77 (1980).
187. 517 F.2d 584 (2d Cir. 1975).
188. See generally Andrew Taslitz, Myself Alone: Individualizing Justice through Psychological Character Evidence, 52 MD. L. REV. 1 (1993).
189. FED. R. EVID. 404.
190. FED. R. EVID. 404(a).
191. 553 F.2d 1073 (7th Cir. 1977).
192. 668 P.2d 874 (Ariz. 1981). See also State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981) (holding it error to exclude testimony that
the defendant had difficulty dealing with stress, and that the stress associated with the offense caused his reaction to be more reflexive than
reflective, and thus unpremeditated).
193. 247 F. Supp. 743 (S.D.N.Y. 1965). See also State v. Wood, 346 N.W.2d 481 (Iowa 1984), where the court allowed expert testimony
that one of the participants was a passive–dependent personality who would follow others and therefore should not be convicted as an
accomplice. See generally MCCORMICK ON EVIDENCE 769–70 (6th ed. 2006).
194. See, e.g., People v. Jones, 156 Cal. App. 2d 279, 319 P.2d 458 (1957). See also Robert H. Woody & J.M. Shade, Psychological

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Testimony on the Propensity for Sexual Child Abuse, MICH. PSYCHOLOGIST 12 (Mar.–Apr. 1989).
195. See, e.g., Freeman v. State, 486 P.2d 967 (Alaska 1971).
196. United States v. Webb, 625 F.2d 709 (5th Cir. 1980) (excluding testimony that defendant would not shoot a helicopter because this
conclusion was “within the ‘ken of lay jurors’ ”); United States v. MacDonald, 485 F. Supp. 1087 (E.D.N.C. 1979), aff’d, 688 F.2d 224 (4th
Cir. 1982) (rejecting testimony that defendant’s personality was inconsistent with violent murders).
197. 88 N.J. 508, 443 A.2d 1020 (1982).
198. 310 N.W.2d 58 (Minn. 1981).
199. See, e.g., Sanders v. State, 251 Ga. 70, 303 S.E.2d 13 (1983).
200. 337 N.W.2d 512 (Iowa 1983).
201. See, e.g., People v. James, 451 N.W.2d 611 (Mich. App. 1990); State v. McCoy, 400 N.W.2d 807 (Minn. App. 1987); In re Cheryl H.,
153 Cal. App. 3d 1098, 200 Cal. Rptr. 789 (1984); State v. Myers, 359 N.W.2d 604 (Minn. 1984).
202. Henson v. State, 535 N.E.2d 1189 (Ind. 1989); State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982); State v. Huey, 145 Ariz. 59, 699
P.2d 1290 (1985); State v. Allewalt, 308 Md. 89, 517 A.2d 741 (1986). Note that in these states the defendant would also be able to show
consent through proving that the trauma symptoms are not present. See generally Toni Massaro, Experts, Psychology, Credibility, and Rape: The
Rape Trauma Syndrome Issue and Its Implications for Expert Psychological Testimony, 69 MINN. L. REV. 395 (1985).
203. With respect to the rape trauma syndrome, see Rodriguez v. State, 2002 WL 2027328 (not designated for publication); State v. Kinney,
762 A.2d 833, 844 (Vt. 2000); State v. Saldana, 324 N.W.2d 227 (1982); Spencer v. General Elec. Co, 688 F. Supp. 1072 (E.D. Va. 1988);
People v. Pullins, 145 Mich. App. 414, 378 N.W.2d 501 (1985); Commonwealth v. Zamarripa, 379 Pa. Super. 20, 549 A.2d 980 (1988). As to
testimony that a child has been abused, see State v. Tracy, 482 N.W.2d 675 (Iowa 1992) (holding that an expert was impermissibly testifying as
to the child victim’s truthfulness); People v. Beckley, 434 Mich. 691, 456 N.W.2d 391 (1990); People v. Reinhardt, 188 Mich. App. 80, 469
N.W.2d 22 (1991) (limiting such testimony to whether the child’s symptoms are “typical” of those normally found in sexually abused children;
specific testimony that the child victim was abused is impermissible).
204. 36 Cal. 3d 236, 681 P.2d 291, 203 Cal. Rptr. 450 (1984).
205. For a summary of the caselaw, see 2 DAVID FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE 520–21 (2016–17)
(noting that “most courts stress in unequivocal terms that RTS [rape trauma syndrome] cannot be used to prove the ‘ultimate issue’ that a rape
occurred, and that RTS cannot be sued to support or bolster the credibility of the alleged witness,” while other courts limit experts “to
statements about whether the alleged victims’ post-intercourse behavior . . . is consistent with that of typical rape victims,” and a “subset of
courts” instead “only permit evidence that indicates that the alleged victim acted in a way not inconsistent with being a victim of rape”). This
source also notes that defendants also sometimes seek to admit evidence regarding rape trauma syndrome to support their versions of the facts,
although difficult issues arise as to whether the defendant can force the alleged victim to undergo a psychological evaluation for such purposes.
See id. at 531–34.
206. 397 U.S. 358 (1970).
207. See, e.g., Mullaney v. Wilbur, 421 U.S. 684 (1975) (holding that the state must disprove provocation beyond a reasonable doubt).
208. LAFAVE, supra note 101, at 569.
209. Id. at 820–25.
210. Id. at 518–21.
211. Id. at 827.
212. MODEL PENAL CODE § 3.04.
213. MODEL PENAL CODE § 210.3.
214. MODEL PENAL CODE § 2.09.
215. The initial research identifying this syndrome was conducted by Walker. See LENORE WALKER, THE BATTERED WOMAN
(1979). Scores of researchers have since refined the concept, and scores of commentators and courts have since considered its application under a
number of legal doctrines, including insanity, provocation, and (as described here) self-defense. See generally Joshua Dressler, Battered Women
and Sleeping Abusers: Some Reflections, 3 OHIO ST. J. CRIM. L. 457 (2006). Regina A. Schuller & Neil Vidmar, Battered Woman Syndrome
Evidence in the Courtroom: A Review of the Literature, 16 LAW & HUM. BEHAV. 273 (1992).
216. State v. Norman, 378 S.E.2d 8 (N.C. 1989). Cf. Jahnke v. State, 682 P.2d 991 (Wyo. 1984) (rejecting evidence of battered-child
syndrome to support self-defense claim).
217. See FAIGMAN ET AL., supra note 205, at 355 (stating “In general, courts have been sympathetic toward defense use of the battered
woman syndrome in homicide prosecutions and most admit expert testimony concerning this issue”). See, e.g., State v. Urena, 899 A.2d 1281
(R.I. 2006); State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984); Ibn-Tamas v. United States, 455 A.2d 893 (D.C. App. 1983); Smith v. State, 277
S.E.2d 678 (Ga. 1981); Hawthorne v. State, 408 So. 2d 801 (Fla. App. 1982). Note that the syndrome has also been used by the state to rebut a
defendant’s insanity defense. State v. Baker, 424 A.2d 177 (N.H. 1980).

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 218. 2 All E.R. 801 (1954).
219. 563 F.2d 1331 (9th Cir. 1977). See also Kanaras v. State, 54 Md. App. 568, 460 A.2d 61 (1983) (defendant was “passive” and “easily
led,” and therefore was coerced into theft, housebreaking, and felony murder).
220. See generally CHARLES WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE ch. 20 (6th ed. 2014).
221. United States v. Bestanipour, 41 F.3d 1178 (7th Cir. 1994); United States v. Hill, 655 F.2d 512 (3d Cir. 1981). Cf. United States v.
Newman, 849 F.2d 156 (5th Cir. 1988). People v. Voit, 335 Ill. App. 3d 1015, 825 N.E.2d 273, 283 (2004) discusses the opposing points of
view on psychiatric testimony about entrapment.
222. According to LAFAVE, supra note 101, (1) a “substantial minority” of states have adopted a version of the Model Penal Code’s
provocation formulation, id. at 828; (2) a “few” states have adopted a version of the Code’s subjective self-defense doctrine, id. at 574; and (3) “a
very distinct majority” of states have adopted its duress formulation, id. at 525.
223. Stuart M. Kirschner & Gary M. Galperin, The Defense of Extreme Emotional Disturbance in New York County: Pleas and Outcomes, 10
BEHAV. SCI. & L. 47 (2002).
224. See, e.g., People v. Kelly, 10 Cal. 3d 565, 516 P.2d 875, 11 Cal. Rptr. 171 (1973); Outturn v. Commonwealth, 211 Va. 12, 174 S.E.2d
779 (1970); Cirack v. State, 201 So. 2d 706 (Fla. 1967); Beasley v. State, 50 Ala. 149 (1874). See generally LAFAVE, supra note 101, at 399.
225. 214 N.W.2d 205 (Iowa 1974).
226. People v. Boyer, 38 Cal. 4th 412, 133 P.3d 581, 622 (Cal. 2006) (general intent is assumed to exist even if intoxication renders
defendant unconscious).
227. See LAFAVE, supra note 101, at 499–500. However, as explained below, a recent trend toward eliminating the voluntary intoxication
defense has developed.
228. Paul Robinson, Causing the Condition of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 VA. L. REV.
1 (1985).
229. 518 U.S. 37 (1996).
230. Id. at 50 (citing studies).
231. See Molly McDonough, Sobering Up, 88 A.B.A. J. 28 (2002).
232. Meghan Paulk Ingle, Law on the Rocks: The Intoxication Defenses Are Being Eighty-Sixed, 57 VAND. L. REV. 606, 631 (2002).
233. LAFAVE, supra note 101, at 507. See also Minneapolis v. Altimus, 306 Minn. 462, 238 N.W.2d 851 (1976); MODEL PENAL
CODE §§ 2.08(4) & (5)(c) (1962).
234. LAFAVE, supra note 101, at 507.
235. See, e.g., Driver v. Hinnant, 346 F.2d 761 (4th Cir. 1966). Cf. Robinson v. California, 370 U.S. 660 (1962).
236. United States v. Moore, 486 F.2d 1139 (D.C. Cir. 1973); United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969); People v. Vorrero,
227 N.E.2d 18 (N.Y. 1967); Roberts v. State, 41 Wis. 2d 537, 164 N.W.2d 525 (1969).
237. See LAFAVE, supra note 101, at 508; State v. Sexton, 904 A.2d 1092, 1104 (Vt. 2006) (limiting defense of “settled insanity” due to
psychoactive substance abuse “to those cases where the initial choice to abuse alcohol or drugs has become so attenuated over time that it serves
little or no purpose to hold the defendant accountable once a permanent mental illness has taken hold through years of chronic substance use”).
For a description of the nuances of the settled insanity defense and an argument that it should be abolished, see Mark A. Grimes, Punishing
Drug-Induced Insanity: An Analysis, 91 NEB. L. REV. 502 (2012).
238. See Carleton A. Palmer & Mark Hazelrigg, The Guilty But Mentally Ill Verdict: A Review and Conceptual Analysis of Intent and Impact,
28 J. AM. ACAD. PSYCHIATRY & L. 47, 47–48 n.* (2000) (Alaska, Delaware, Georgia, Illinois, Indiana, Kentucky, Maryland, Michigan,
New Mexico, South Carolina, South Dakota, and Utah).
239. See MICH. COMP. LAWS ANN. §§ 768.29(a)(2), 768.36 (1982).
240. See, e.g., BARBARA WOOTTON, CRIME AND THE CRIMINAL LAW (1963). This proposal, in turn, is to be distinguished
from the move in some states to change the insanity verdict from NGRI to “guilty except for insanity.” See, e.g., OR. REV. STAT. §
161.125(1). This type of legislation does not eliminate the insanity defense, but merely changes the verdict label, apparently in an effort to send
a message to the public that the person has been found to have committed a criminal act, and perhaps also to suggest that the person will not be
released immediately from custody.
241. See statutes cited supra note 34.
242. See supra note 74.
243. See, e.g., State v. Lantz, 712 N.E.2d 314 (Ill. 1999).
244. According to Smith & Hall, supra note 19, at 101, the percentage of acquittals since passage of Michigan’s GBMI law increased slightly
in the first eight years after passage. See also Christopher Slobogin, The GBMI Verdict: An Idea Whose Time Should Not Have Come, 53 GEO.
WASH. L. REV. 494, 506–10 (1985) (canvassing National Center for State Court data, which suggest that in only one of four states studied—
Georgia—did insanity acquittals drop after introduction of the verdict). Another study of Georgia found that the decrease in the acquittal rate

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in that state may have been due largely to a federal court’s decision a year before the adoption of the GBMI verdict eliminating Georgia’s
practice of automatically committing insanity acquittees. STEADMAN ET AL., supra note 12, at 108–11. At the same time, it found that the
rate of insanity pleas increased significantly after adoption of the verdict. Id. at 106–08.
245. Steadman and his colleagues found that in Georgia, those found GBMI for violent offenses were confined longer than those found
NGRI and those found guilty. STEADMAN ET AL., supra note 12, at 117–19. What is not clear from this research, however, is whether
those who received longer sentences would have been found NGRI in the absence of the GBMI verdict. In fact, it is very possible that this
group was composed of the most dangerous offenders, who under the pre-GBMI system would have been convicted and confined for relatively
longer periods, analogous to those experienced by persons found GBMI. In other words, Steadman et al.’s findings may merely indicate that the
GBMI verdict has changed nothing but the label assigned to the most dangerous, noninsane defendants. See Smith & Hall, supra note 19, at
95–100 (finding that most people in the GBMI group come from the guilty group, not the NGRI group).
246. See, e.g., People v. Murphy, 416 Mich. 453, 331 N.W.2d 152 (1982) (striking down a jury’s GBMI verdict as against the weight of the
evidence, and directing an insanity acquittal); Michigan v. Fultz, 111 Mich. App. 587, 314 N.W.2d 702 (1981) (same, except GBMI verdict
came from a bench trial).
247. See, e.g., People v. Crews, 122 Ill. 2d 266, 119 Ill. Dec. 308, 522 N.E.2d 1167 (1988).
248. DEL. CODE ANN. tit. 11, § 408.
249. See, e.g., the Michigan jury instruction, which after stating that “[i]n most respects a verdict of guilty but mentally ill is the same as a
verdict of guilty,” continues, “The distinction is that the verdict of guilty but mentally ill imposes upon the Department of Corrections an
obligation to provide appropriate psychiatric treatment during the period of imprisonment or while the defendant is on probation.” Michigan
Criminal Jury Instructions CJI 7:8:10 (1977).
250. Indeed, one mental health administrator asserted that roughly 75% of those found GBMI in Michigan are sent to prison and receive “no
treatment.” Testimony of William Meyer, in MYTHS & REALITIES: A REPORT OF THE NATIONAL COMMISSION ON THE
INSANITY DEFENSE 333 (1983). This testimony also indicated that most offenders found GBMI are sex offenders who are relatively
untreatable; however, a study of offenders found GBMI in Michigan found that 72% needed treatment. See generally Slobogin, supra note 244,
at 518 n.115; see also Smith & Hall, supra note 19, at 104–06 (finding that offenders found GBMI were no more likely to receive treatment
than other prisoners); STEADMAN ET AL., supra note 12, at 116 (finding that only 2% of those found GBMI in Georgia were hospitalized);
Keilitz, supra note 80, at 77.
251. Most state statutes make clear that treatment is not a “right,” but is to be provided to offenders found GBMI at the discretion of the
state. See, e.g., ILL. REV. STAT. ch. 38, § 1005-2-6; N.M. STAT. ANN. § 31.9.4; S.D. CODIFIED LAWS ANN. § 23A-27-38; UTAH
CODE ANN. § 77-35-21.5(4); 42 PA. CONS. STAT. § 9727(b); GA. CODE ANN. § 17-7-131(g). Several state courts have explicitly held
that there is no right to treatment under GBMI statutes. See, e.g., People v. Manning, 883 N.E.2d 429, 500 (2008) (“While a plea of GBMI
guarantees periodic examinations, it does not guarantee treatment”); People v. Marshall, 114 Ill. App. 3d 217, 448 N.E.2d 969 (1983). Even in
Michigan, where the courts have held that offenders found GBMI have a right to treatment, the right is seldom enforced. See Slobogin, supra
note 244, at 513–14 n. 90.
252. See Robert J. Favole, Mental Disability in the American Criminal Process: A Four Issue Survey, in MENTALLY DISORDERED
OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 281–95 (John Monahan & Henry J. Steadman eds., 1983)
(chart showing that all 50 states have some provision for transferring prisoners to mental health facilities).
253. See SIMON, supra note 78, at 178 (concluding that jurors would prefer such a compromise verdict).
254. Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. PA. L. REV. 2245 n.169 (1992) (“the [GBMI]
movement seems to have stalled and there has been little new legislative or judicial initiative in those states that did not develop ‘GBMI’ verdicts
by 1986”).
255. Janet I. Warren et al., Criminal Offense, Psychiatric Diagnosis, and Psycholegal Opinion: An Analysis of 894 Pretrial Referrals, 19 BULL.
AM. ACAD. PSYCHIATRY & L. 63 (1991). Psychotic, organic, and affective disorders were also associated with NGRI recommendations in
a subsequent study of Virginia cases. See also Janet I. Warren et al., Opinion Formation in Evaluating Insanity at the Time of the Offense: An
Examination of 5175 Pre-Trial Evaluations, 22 BEHAV. SCI. & L. 171 (2004) [hereinafter Warren et al., Opinion].
256. Cochrane et al., supra note 14, at 387.
257. Strauss, supra note 15, at 575.
258. Data for the first three samples, in the order in which they appear in the table, are from the following studies: Cooke & Sikorski, supra
note 11; Criss & Racine, supra note 25; Pasewark et al., supra note 20. The data for the fourth through sixth samples are from STEADMAN
ET AL., supra note 12, at 74–83 (New York data); 50–62 (California data); 105–119 (Georgia data). Data for Connecticut come from Howard
V. Zonana et al., Part I: The NGRl Registry: Initial Analyses of Data Collected on Connecticut Insanity Acquittees, 18 BULL. AM. ACAD.
PSYCHIATRY & L. 115, 121–23 (1990), and data for Oklahoma come from Robert A. Nicholson et al., Characteristics and Outcomes of
Insanity Acquittees in Oklahoma, 9 BEHAV. SCI. & L. 487, 491–94 (1991). Some condensing of the original data was necessary to make the

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studies more nearly comparable. The data are not directly comparable in all categories; for example, “prior criminal record” was recorded by
Cooke and Sikorski as prior conviction, while the other studies used prior arrest as the measure. Furthermore, the percentages in Table 8.1 are
rounded to the nearest whole percent. In some instances, the figures are extracted directly from the studies cited; in other instances, they are
based on our calculations of data presented. When we made the calculations, we used only the n’s for which data were available in determining
percentages.
259. The role of possible racial disparities in the administration of the insanity defense is not clear. Although the text suggests that black
defendants may be overrepresented when population base rates are considered, one study reported that examiners opined in favor of white
defendants more often than minority defendants, despite comparable psychiatric and criminal characteristics. Warren et al., Opinion, supra note
255, at 171.
260. Brea L. Perry et al., A Paradox of Bias: Racial Differences in Forensic Psychiatric Diagnosis and Determinations of Criminal
Responsibility, 5 RACE & SOC. PROBS. 239 (2013).
261. See also Petrila, supra note 11, Table 11 (reporting that a study of pretrial evaluations in Missouri in 1978 revealed that only 1 of 127
defendants recommended as NGRI was diagnosed as having a personality disorder).
262. Concerning the impact of skepticism about the insanity defense on venire members’ judgments about insanity cases, see Brooke Butler,
NGRI Revisited: Venirepersons’ Attitudes Toward the Insanity Defense, 36 J. APPLIED SOC. PSYCHOL. 1833 (2006) (support for insanity
defense was affected by attitudes about legal standards of insanity, mental illness, and myths associated with the insanity defense).
263. Stuart M. Kirschner et al., The Defense of Extreme Emotional Disturbance: A Qualitative Analysis of Cases in New York County, 10
PSYCHOL. PUB. POL’Y & L. 102 (2004).
264. Id. at 115.
265. Id.
266. Smith & Hall, supra note 19, at 95–100.
267. National Institute of Neurological Disorders and Stroke, Epilepsy Information Page, available at
https://www.ninds.nih.gov/Disorders/All-Disorders/Epilepsy-Information-Page.
268. For a review through 2013, see JEROME ENGEL, JR., SEIZURES AND EPILEPSY 14–31 (2013).
269. Ingrid E. Scheffer et al., Classification of the Epilepsies: New Concepts for Discussion and Debate—Special Report of the ILAE
Classification Task Force of the Commission for Classification and Terminology, 1 EPILEPSIA OPEN, 37, 39 (2016) (describing a proposed
framework).
270. Anne T. Berg et al., Revised Terminology and Concepts for Organization of Seizures and Epilepsies: Report of the ILAE Commission on
Classification and Terminology, 2005–2009, 51 EPILEPSIA 676, 678 (2010).
271. ENGEL, supra note 268, at 216–28.
272. Berg et al., supra note 270, at 678.
273. ENGEL, supra note 268, at 28.
274. DAVID P. MOORE & BASANT K. PURI, TEXTBOOK OF CLINICAL NEUROPSYCHIATRY AND BEHAVIORAL
NEUROSCIENCE 289 (3d ed. 2013). For examples of automatisms, see id., 290–92.
275. Antonio V. Delgado-Escueta et al., The Nature of Aggression during Epileptic Seizures, 6 EPILEPSY & BEHAV. 550 (2002); Neil S.
Pandya et al., Epilepsy and Homicide, 9 NEUROPSYCHIATRIC DISEASE & TREATMENT 667 (2013). The latter article describes a
review of medical and legal publications from 1880 to 2013, finding 30 publications that reported 176 cases of aggressive behavior in persons
with epilepsy. Of the 50 cases involving homicides, just 11 (22%) described violent behavior that occurred in temporal relationship to a seizure.
Nine of these homicides involved postictal (after-seizure) behavior (when individuals often experience an altered state of consciousness); one
involved interictal (between-seizure) behavior; and one occurred during a seizure.
276. Antonio V. Delgato-Escueta et al., The Nature of Aggression during Epileptic Seizures, 305 NEW ENG. J. MED. 711, 715 (1981).
277. Delgato-Escueta et al., supra note 275, at 555.
278. Id.
279. Id. at 555–56.
280. Laura Marsh & Gregory L. Krauss, Aggression and Violence in Patients with Epilepsy, 1 EPILEPSY & BEHAV. 160, 163–64 (2000).
For some vivid examples, see Arthur C. Grant et al., Acute Postictal Confusion and Violence: Two Cases with Unfortunate Outcomes, 1
EPILEPSY & BEHAV. CASE REP. 71, 71–72 (2013).
281. Id. at 164; Ivan Rektor et al., Third International Congress on Epilepsy, Brain, and Mind: Part 2, 50 EPILEPSY & BEHAV. 138, 146
(2015).
282. Kousuke Kanemoto et al., Violence and Postictal Psychosis: A Comparison of Postictal Psychosis, Interictal Psychosis, and Postictal
Confusion, 16 EPILEPSY & BEHAV. 162, 165 (2010).
283. Id. at 165 (“modern studies have rightly rejected the notion that most individuals with epilepsy are prone to violence”).

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 284. Steven C. Schachter, Aggression in Epilepsy, in PSYCHIATRIC ISSUES IN EPILEPSY: A PRACTICAL GUIDE TO
DIAGNOSIS AND TREATMENT 306, 315 (Alan B. Ettinger & Andres M. Kanner eds., 2d ed. 2007).
285. Id.
286. Orrin Devinsky, Postictal Psychosis: Common, Dangerous, and Treatable, 8 EPILEPSY CURRENTS 31, 32 (2008).
287. See Sarah Knott et al., Epilepsy and Bipolar Disorder, 52 EPILEPSY & BEHAV. 267, 269 (Fig. 1) (2015); Wenzel Schicho & Oliver
Pogarell, Physiological Aberrations in Panic Disorder, 21 CURR. TOPICS BEHAV. NEUROSCI. 185, 190–91 (2014); Anbesaw W. Selassie
et al., Epilepsy beyond Seizure: A Population-Based Study of Comorbidities, 108 EPILEPSY RES. 305, 307 (2013) (substance abuse, intellectual
disabilities, and personality disorders); Dominique Endres et al., Electroencephalographic Findings in Schizophreniform and Affective Disorders,
20 INT’L J. PSYCHIATRY CLIN. PRAC. 157 (2016); Ludger Tebartz van Elst et al., Increased Prevalence of Intermittent Rhythmic Delta or
Theta Activity (IRDA/IRTA) in the Electroencephalograms (EEGs) of Patients with Borderline Personality Disorder, 10 FRONTIERS BEHAV.
NEUROSCI. art. 12 (Feb. 23, 2016).
288. Matthias J. Koepp et al., Concepts and Controversies of Juvenile Myoclonic Epilepsy: Still an Enigmatic Epilepsy, 14 EXPERT REV.
NEUROTHERAPEUTICS 819 (2014).
289. Knott et al., supra note 287, at 269.
290. See David Bear et al., Interictal Behavior in Hospitalized Temporal Lobe Epileptics: Relationship to Idiopathic Psychiatric Syndromes, 45 J.
NEUROLOGY NEUROSURGERY & PSYCHIATRY 481 (1982); Dietrich Blumer, Evidence Supporting the Temporal Lobe Epilepsy
Personality Syndrome, 53 NEUROLOGY s9 (1999 supp. 2) (discussing a “deepening of emotionality with a serious, highly ethical, and spiritual
demeanor,” “particularly orderly and detailed . . . speech and actions,” a “relative decrease in sexual interest and arousal,” and “episodes of
irritable moods that contrast with a predominantly good-natured attitude and for which the patients will be remorseful”).
291. Characteristics that best discriminate the interictal behavior of persons with temporal lobe epilepsy from the behavior of controls include
clinginess, circumstantiality (excessive use of detail in verbal reports), hypergraphia (excessive writing behavior), hyposexuality (reduced sexual
interest and activity), and increased interest in religious and/or philosophical matters. Paul Fedio, Behavioral Characteristics of Patients with
Temporal Lobe Epilepsy, 9 PSYCHIATRIC CLINICS N. AM. 267, 273–74 (1986).
292. Markus Reuber & Ronnie D. Mackay, Epileptic Automatisms in the Criminal Courts: 13 Cases Tried in England and Wales between 1975
and 2001, 49 EPILEPSIA 138 (2008) (finding that “it is exceptional for epileptic seizures to cause criminal acts or omissions,” and that “some
of cases found NGRI on account of epilepsy were not actually related to seizures”).
293. C.G. Hindler, Epilepsy and Violence, 155 BRIT. J. PSYCHIATRY 246, 249 (1989) (describing these as “an amalgamation” of previous
authors’ recommendations). Accord, Schachter, supra note 284, at 314.
294. Yifan Zhang et al., Ketosis Proportionately Spares Glucose Utilization in Brain, 33 J. CEREBRAL BLOOD FLOW METABOLISM
1307 (2013).
295. Vincent Marks, Hypoglycaemia and Automatism, 55 MED. SCI. & L. 186, 187 (2015); Richard C. W. Hall et al., Endocrine Disease
and Behavior, 4 INTEGRATIVE PSYCHIATRY 122, 125–26 (1986). Physiological signs that may be present include dilated pupils,
hypertension, and tachycardia. Id.
296. Vincent Marks, Hypoglycaemia: Accidents, Violence and Murder. Part 1, 22 PRACTICAL DIABETES INT’L 303 (2005).
297. Marks, supra note 295, at 192.
298. Id.
299. DSM-5, supra note 102, at 291.
300. The other four dissociative disorders listed in DSM-5 are these:

Depersonalization/derealization disorder, which involves repeated experiences of feeling that things are unreal or that one is detached from
one’s mind or self, and/or feeling detached from one’s surroundings, or feeling that surroundings are unreal.
Dissociative amnesia, an inability to recall important autobiographical information beyond what is typical of normal forgetting.
Other specified dissociative disorder, a diagnosis used when symptoms do not meet criteria for another dissociative disorder, and the clinician
specifies why not.
Unspecified dissociative disorder, a diagnosis used when the clinician does not or cannot specify the reason that symptoms do not meet criteria
for a specified dissociative disorder (e.g., when the clinician has too little information to be more specific). DSM-5, supra note 102, at 291–
307.

301. Id. at 292–94.

302. Id. at 293.
303. Id..
304. See, e.g., Paul Chodoff, Comment, 144 AM. J. PSYCHIATRY 124 (1987) (reporting having observed only one “very doubtful case” in
40 years of practicing psychiatry, and informal polling of colleagues in private practice who report no, or at most one to two, cases); Corbett H.

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Thigpen & Harvey M. Cleckley, On the Incidence of Multiple Personality Disorder: A Brief Communication, 32 INT’L J. CLINICAL &
EXPERIMENTAL HYPNOSIS 63 (1984) (reporting having seen only one case of MPD in “tens of thousands” of patients in over three
decades of practicing psychiatry); Jane F. Cormier & Mark H. Thelen, Professional Skepticism of Multiple Personality Disorder, 29 PROF.
PSYCHOL.: RES. & PRAC. 163 (1998); Harrison G. Pope, Jr., et al., Attitudes toward DSM-IV Dissociative Disorder Diagnoses among
Board-Certified American Psychiatrists, 156 AM. J. PSYCHIATRY 321 (1999); Scott O. Lilienfeld & Steven J. Lynn, Dissociative Identity
Disorder: Multiple Personalities, Multiple Controversies, in SCIENCE AND PSEUDOSCIENCE IN CLINICAL PSYCHOLOGY 109
(Scott O. Lilienfeld et al. eds., 2003).
305. Bethany L. Brand et al., Separating Fact from Fiction: An Empirical Examination of Six Myths about Dissociative Identity Disorder, 24
HARV. REV. PSYCHIATRY 257, 258 (2016) (citing examples).
306. Id. at 259.
307. Id. The currently recommended treatment involves three phases: (1) focusing on patient safety and establishing a treatment alliance,
while avoiding premature exploration of traumatic memories; (2) after establishing the ability to regulate mood and manage symptoms, aiding
the patient in processing and resolving trauma; and (3) helping the patient to integrate dissociated states of self. See generally International
Society for the Study of Trauma and Dissociation, Guidelines for Treating Dissociative Identity Disorder in Adults, Third Revision: Summary
Version, 12 J. TRAUMA & DISSOCIATION 188 (2011).
308. Brand et al., supra note 305, at 259–60.
309. Id. at 260–62. This review summarizes international studies showing prevalences of 0.4–6% in clinical populations and 1.1–1.5% in
three general population studies; id. at 260 (Table 1). DSM-5 cites the 1.5% estimate. DSM-5, supra note 102, at 294.
310. Marinus H. van IJzendoorn & Carlo Schuengel, The Measurement of Dissociation in Normal and Clinical Populations: Meta-Analytic
Validation of the Dissociative Experiences Scale (DES), 16 CLINICAL PSYCHOL. REV. 365 (1996).
311. MARLENE STEINBERG, INTERVIEWER’S GUIDE TO THE STRUCTURED CLINICAL INTERVIEW FOR DSM-IV
DISSOCIATIVE DISORDERS—REVISED (1994).
312. Colin A. Ross et al., The Dissociative Disorders Interview Schedule: A Structured Interview, 2 DISSOCIATION 169 (1989). For a
review with comments about various instruments’ performance in diagnostic and epidemiological studies, see Martin J. Dorahy et al.,
Dissociative Identity Disorder: An Empirical Overview, 48 AUST. N.Z. J. PSYCHIATRY 402 (2014).
313. Dorothy O. Lewis et al., Objective Documentation of Child Abuse and Dissociation in 12 Murderers with Dissociative Identity Disorder,
154 AM. J. PSYCHIATRY 1703 (1997).
314. Andrew K. Moskowitz et al., Replication of Dissociation–Psychosis Link in New Zealand Students and Inmates, 193 J. NERVOUS &
MENTAL DISEASE 722, 725 (2005)
315. Umit B. Semiz et al., Childhood Trauma History and Dissociative Experiences Among Turkish Men Diagnosed with Antisocial
Personality Disorder, 42 SOC. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY 865, 868–69 (2007).
316. See, e.g., Dominique Roe-Sepowitz & Laura E. Bedard, The Impact of Child Abuse on Dissociative Symptoms: A Study of Incarcerated
Women, 8 J. TRAUMA & DISSOCIATION 7 (2007).
317. Mark A. Ruiz et al., Factor Structure and Correlates of the Dissociative Experiences Scale in a Large Offender Sample, 15 ASSESSMENT
511 (2008).
318. Aliya R. Webermann et al., Childhood Maltreatment and Intimate Partner Violence in Dissociative Disorder Patients, 5 EUR. J.
PSYCHOTRAUMATOLOGY, available at http://www.tandfonline.com/doi/full/10.3402/ejpt.v5.24568 (2014).
319. Warren et al., Opinion, supra note 255, at 180 (Table 2).
320. Andrew Moskowitz, Dissociation and Violence: A Review of the Literature, 21 TRAUMA VIOLENCE & ABUSE 21, 26 (Table 1)
(2004).
321. Id. at 32.
322. Styliani Simoneti et al., Dissociative Experiences in Partner-Assaultive Men, 15 J. INTERPERS. VIOLENCE 1262 (2000).
323. J. Michael Rivard et al., Acute Dissociative Responses in Law Enforcement Officers Involved in Critical Shooting Incidents: The Clinical
and Forensic Implications, 47 J. FORENSIC SCI. 1 (2002).
324. DSM-5, supra note 102, at 303.
325. Rivard et al., supra note 323, at 6.
326. Bethany L. Brand et al., MMPI-2 Item Endorsements in Dissociative Identity Disorder vs. Simulators, 44 J. AM. ACAD.
PSYCHIATRY & L. 63 (2016) (reviewing past research and reporting new findings).
327. For a review and critique of physiological studies that purport to provide evidence for alter personalities, see Harald Merckelbach et al.,
Alters in Dissociative Identity Disorder: Metaphors or Genuine Entities, 22 CLINICAL PSYCHOL. REV. 481 (2002).
328. Paul S. Appelbaum & Alexander Greer, Who’s on Trial?: Multiple Personalities and the Insanity Defense, 45 HOSP. & COMMUNITY
PSYCHIATRY 965 (1994); Jeanette Kennett & Steve Matthews, Identity, Control, and Responsibility: The Case of Dissociative Identity

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Disorder, 15 PHIL. PSYCHOL. 509 (2002).
329. The study of stress-related disorders has developed primarily in the context of war, including the study of war neurosis (combat-related
stress) and victims of the Holocaust. It has expanded into research on the impact of natural disasters (e.g., hurricanes) and industrial accidents,
and thence to specific individual experiences (e.g., rape or assault). For a review, see Philip A. Saigh, History, Current Nosology, and
Epidemiology, in POSTTRAUMATIC STRESS DISORDER: A BEHAVIORAL APPROACH TO ASSESSMENT AND
TREATMENT 1 (Philip A. Saigh ed., 1992).
330. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (3rd ed. 1980).
331. DSM-5, supra note 102, at 271. This and other parts of the DSM-5 criteria for PTSD represent a broadening of, and other changes in,
the criteria in previous DSMs. For a discussion focused on forensic evaluations, see Andrew P. Levin et al., DSM-5 and Posttraumatic Stress
Disorder, 42 J. AM. ACAD. PSYCHIATRY & L. 146, 146–151 (2014).
332. Examples would include recurring, troubling memories of the trauma or dreams that are thematically related to it. DSM-5, supra note
102, at 271.
333. Examples would include avoiding having thoughts or contact with things, places, or people that remind the individual of the trauma. Id.
334. Examples would include gaps in one’s memory for the trauma, unreasonably blaming oneself for the event, diminished interest in things
that the individual once enjoyed, and feeling estranged or distant from loved ones. Id. at 271–72.
335. Id. at 272.
336. Landy F. Sparr & Roland M. Atkinson, Posttraumatic Stress Disorder as an Insanity Defense: Medicolegal Quicksand, 143 AM. J.
PSYCHIATRY 608 (1986); Anthony S. Higgins, Post-Traumatic Stress Disorder and Its Role in the Defense of Vietnam Veterans, 15 LAW &
PSYCHOL. REV. 259 (1991); Alan A. Stone, Post-Traumatic Stress Disorder and the Law: Critical Review of the New Frontier, 21 BULL.
AM. ACAD. PSYCHIATRY & L. 23 (1993).
337. Flashback experiences among Vietnam veterans have been described as “sudden, discrete experience(s), leading to actions, where the
manifest psychic content is only indirectly related to the war; in addition the veteran does not have conscious awareness of reliving events in
Vietnam.” Herbert J. Cross, Social Factors Associated with Post-Traumatic Stress Disorder in Vietnam Veterans, in POST-TRAUMATIC
STRESS DISORDER: ASSESSMENT, DIFFERENTIAL DIAGNOSIS AND FORENSIC EVALUATION 73, 85 (Carroll L. Meek
ed., 1990).
338. Ryan C.W. Hall & Richard C.W. Hall, Malingering of PTSD: Forensic and Diagnostic Considerations, Characteristics of Malingerers
and Clinical Presentations, 28 GEN. HOSP. PSYCHIATRY 525, 526 (2006); Levin et al., supra note 331, at 153; Ziv E. Cohen & Paul S.
Appelbaum, Experience and Opinions of Forensic Psychiatrists Regarding PTSD in Criminal Cases, 44 J. AM. ACAD. PSYCHIATRY & L. 41,
49 (2016).
339. See, e.g., Anke Ehlers et al., Information Processing in Posttraumatic Stress Disorder, in THE OXFORD HANDBOOK OF
TRAUMATIC STRESS DISORDERS 191, 207 (J. Gayle Beck & Denise M. Sloan eds., 2012) (interpretation of trauma and intentional
biases contribute to perception of threat); Adriel Boals & Darnell Schuettler, A Double-Edged Sword: Event Centrality, PTSD and Posttraumatic
Growth, 25 APPLIED COGNITIVE PSYCHOL. 817, 821 (2011) (differences between individuals’ development of PTSD after a trauma
suggest that “subjective rather than objective aspects of a potentially traumatic event are more critical to trauma outcomes”).
340. Ehlers et al., supra note 339, at 192.
341. American Academy of Psychiatry and the Law (AAPL), AAPL Practice Guideline for Forensic Psychiatric Evaluation of Defendants
Raising the Insanity Defense, 42 J. AM. ACAD. PSYCHIATRY & L. S3, S12 (2014 supp.) [hereinafter AAPL Insanity Guideline].
342. Carlos Blancoa et al., Comorbidity of Posttraumatic Stress Disorder with Alcohol Dependence among US Adults: Results from National
Epidemiological Survey on Alcohol and Related Conditions, 132 DRUG & ALCOHOL DEPENDENCE 630 (2013).
343. Landy F. Sparr, Mental Defenses and Posttraumatic Stress Disorder: Assessment of Criminal Intent, 9 J. TRAUMATIC STRESS 405,
420–21 (1996).
344. DSM-5, supra note 102, at 461.
345. Faulkenberry v. State, 649 P.2d 951 (Alaska Ct. App. 1982); Commonwealth v. Glenn, 503 N.E.2d 39 (Mass. App. Ct. 1987); People
v. Ross, 2007 Cal. App. Unpub. LEXIS 2429 (Cal. Ct. App. 2007).
346. DSM-5, supra note 102. at 476.
347. Id. at 478.
348. Id.
349. For kleptomania, the person experiences increased tension just before stealing, and experiences positive emotions at the time of
committing the stealing. Id. For pyromania, the person experiences increased arousal or tension before setting a fire, and experiences positive
emotions during or after setting the fire. Id. at 476.
350. Nina Lindberg et al., Looking for Pyromania: Characteristics of a Consecutive Sample of Finnish Male Criminals with Histories of
Recidivist Fire-Setting between 1973 and 1993, 5 BMC PSYCHIATRY 47 (2005).

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 351. See, e.g., Jeffrey L. Geller, Firesetting in the Adult Psychiatric Population, 38 HOSP. & COMMUNITY PSYCHIATRY 501 (1987);
Jeffrey L. Geller et al., Adult Lifetime Prevalence of Firesetting Behaviors in a State Hospital Population, 63 PSYCHIATRIC Q. 129 (1992).
352. Jeffrey L. Geller & Gregory Bertsch, Fire-Setting Behavior in the Histories of a State Hospital Population, 142 AM. J. PSYCHIATRY
464 (1985).
353. Geller et al., supra note 351, at 129.
354. Geller & Bertsch, supra note 352 (half the group of fire setters had a history limited to a single episode).
355. In one study of 191 nongeriatric inpatients, none of those who had set illegal fires had a diagnosis of pyromania. Id. at 466.
356. Id. at 464.
357. Jon E. Grant & Suck Won Kim, Clinical Characteristics and Psychiatric Comorbidity of Pyromania, 68 J. CLINICAL PSYCHIATRY
1717 (2007).
358. Paul R. S. Burton et al., Firesetting, Arson, Pyromania, and the Forensic Mental Health Expert, 40 J. AM. ACAD. PSYCHIATRY & L.
355 (2012).
359. Anna I. Guerdjikova & Susan L. McElroy, Kleptomania, in 1 THE ENCYCLOPEDIA OF CLINICAL PSYCHOLOGY 1624,
1625 (Robin L. Cautin & Scott O. Lilienfeld eds., 2015).
360. Marcus J. Goldman, Kleptomania: Making Sense of the Nonsensical, 148 AM. J. PSYCHIATRY 986 (1991).
361. Susan L. McElroy et al., Kleptomania: Clinical Characteristics and Associated Psychopathology, 21 PSYCHOL. MED. 93 (1991).
362. Frank J. Bayle et al., Psychopathology and Comorbidity of Psychiatric Disorders in Patients with Kleptomania, 160 AM. J.
PSYCHIATRY 1509, 1512 (2003); Susan L. McElroy et al., Kleptomania: A Report of 20 Cases, 148 AM. J. PSYCHIATRY 652 (1991).
363. Jon E. Grant et al., White Matter Integrity in Kleptomania: A Pilot Study, 30 PSYCHIATRY RES. 233 (2006).
364. One review reported that women constituted 81% of reported cases. Marcus J. Goldman, Kleptomania: An Overview, 22
PSYCHIATRIC ANNALS 68 (1992). Women constituted 15 of the 20 cases described by McElroy et al., supra note 361.
365. McElroy et al., supra note 361, at 653.
366. “Although shoplifting is rampant, kleptomania is unlikely to explain more than a tiny fraction of such ‘offenses.’ Fewer than 5% of
arrested shoplifters give a history that is consistent with kleptomania.” Michael J. Popkin, Impulse Control Disorders Not Elsewhere Classified, in
2 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY V 1145, 1148 (Benjamin J. Sadock ed., 5th ed. 1989).
367. DSM-5, supra note 102, at 585–86.
368. Id.
369. Id. at 587.
370. Id. at 587–88.
371. Wendy S. Slutske et al., Personality and Problem Gambling: A Prospective Study of a Birth Cohort of Young Adults, 2 ARCHIVES
GEN. PSYCHIATRY 769 (2005).
372. Ronald C. Kessler et al., The Prevalence and Correlates of DSM-IV Pathological Gambling in the National Comorbidity Survey
Replication, 38 PSYCHOL. MED. 1351 (2008).
373. Nigel E. Turner et al., Endorsement of Criminal Behavior amongst Offenders: Implications for DSM-5 Gambling Disorder, 32 J.
GAMBLING STUDIES 35 (2016).
374. Bjarne Larson et al., Problem Gambling Associated with Violent and Criminal Behaviour: A Danish Population-Based Survey and Register
Study, 32 J. GAMBLING STUDIES 25 (2016).
375. See generally Alan Ellis et al., Gambling Addiction: Making the Case for Sentencing Relief, 30 CRIM. JUST. 12 (2015); Stacey A.
Tovino, Gambling Disorder, Vulnerability, and the Law: Mapping the Field, 16 HOUS. J. HEALTH L. & POL’Y 102, 124–27 (2016)
(focusing on examples from Nevada).
376. Cf. People v. Lowitski, 674 N.E.2d 859 (Ill. App. 1996) (pathological gambling cannot be a defense for “nongambling offenses”).
377. See generally Stephen J. Morse, The “New Syndrome Excuse Syndrome,” 14 CRIM. JUST. ETHICS 3 (1995).
378. Florida v. Zamora, 361 So. 2d 776 (Fla. App. 1978). In another case, Ronald Ray Howard, a crack cocaine dealer who murdered a
Texas highway patrol officer, asserted that the violent lyrics of “rap” music had “caused” him to shoot the trooper. The jury was not convinced,
and he was convicted of first-degree murder. USA TODAY, July 15, 1994, at 3a.
379. United States v. Hearst, 412 F. Supp. 889 (N.D. Cal. 1976).
380. See generally Richard Bonnie, Excusing and Punishing in Criminal Adjudication: A Reality Check, 5 CORNELL J.L. & PUB. POL’Y
10 (1995).
381. For an extended discussion of the “gay panic” defense in general and a detailed example, see David Alan Perkiss, A New Strategy for
Neutralizing the Gay Panic Defense at Trial: Lessons From the Lawrence King Case, 60 UCLA L. REV. 778 (2013). For another example, see
Keith Bradsher, Talk-Show Guest Is Guilty of Second-Degree Murder, N.Y. TIMES, Nov. 13, 1996, at A14.
382. DSM-5, supra note 102, at 171–72.

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 383. For further description, see the DSM-5 criteria for PMDD, id. at 171–172.
384. Alexander Capron, Fetal Alcohol and Felony, HASTINGS CENTER REP. (May–June 1992).
385. This defense was floated by William Kunstler and other attorneys of Colin Ferguson after Ferguson was charged with killing six people
on the Long Island Railroad. Ferguson later fired his attorneys and represented himself, rejecting the insanity defense and instead arguing that
he did not commit the crime. For a description of this defense in context, see Jeffrey Rosen, The Trials of William Kunstler, N.Y. TIMES
(Review of Books), Sept. 18, 1994, at 16, col. 3.
386. Laurence Jerome, Road Rage: Old Wine in a New Bottle, 10 CAN. J. PSYCHIATRY 709 (2004) (reporting that road rage is currently
recognized as a subcategory of emotional disorder in the Canadian Medical Association guidelines on driving safety).
387. “The term ‘road rage’ is only part of a vocabulary including terms like ‘supermarket checkout rage,’ ‘air rage,’ ‘computer rage,’ ‘cash-point
rage.’ ” G. Fong et al., Road Rage: A Psychiatric Phenomenon?, 36 SOC. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY 277, 278
(2001).
388. DSM-5, supra note 102, at 749–59.
389. Pasewark and colleagues, for instance, identified three groups of individuals found NGRI who probably should not benefit from the
defense but nonetheless periodically do; they are drawn from women who commit infanticide, law enforcement officials who kill in the course of
duty, and people whose plight as “victims” of their victims makes them sympathetic. Pasewark et al., supra note 20.
390. Another proponent of this approach, who has elaborated upon it further in forensic contexts such as those that purport to use novel
neuroscience-based excuses, is Stephen Morse. See Stephen Morse, Brain and Blame, 84 GEO. L.J. 527 (1996); Stephen Morse, Causation,
Compulsion, and Involuntariness, 22 BULL. AM. ACAD. PSYCHIATRY & L. 159 (1994). For Moore’s thoughts on Morse’s work, see
Michael E. Moore, Stephen Morse on the Fundamental Psycho-Legal Error, 10 CRIM. L. & PHIL. 45 (2016).
391. See PERLIN, supra note 1, at 14 (discussing the “vividness” effect, in which statistically undue prominence is given to abnormal
insanity cases).
392. PETER DIXON, THE OFFICIAL RULES 7 (1978).
393. Harley Stock & Norman Poythress, Psychologists’ Opinions on Competency and Sanity: How Reliable? (paper presented at the American
Psychological Association Annual Convention, New York, Aug. 1979).
394. Kenneth K. Fukunaga et al., Insanity Plea: Inter-Examiner Agreement and Concordance of Psychiatric Opinion and Court Verdict, 5
LAW & HUM. BEHAV. 325 (1981).
395. Lawrence Raifman, Interjudge Reliability of Psychiatrists’ Evaluations of Criminal Defendants’ Competency to Stand Trial and Legal
Sanity (paper presented at the American Psychology–Law Society Convention, Baltimore, Oct. 1979).
396. The three studies, in the order listed in the table, are Richard Rogers et al., An Empirical Approach to Insanity Evaluations, 37 J.
CLINICAL PSYCHOL. 683 (1981); Richard Rogers et al., Evaluating Insanity: A Study of Construct Validity, 8 LAW & HUM. BEHAV.
293 (1984); Richard Rogers et al., The R-CRAS and Legal Insanity: A Cross-Validation Study, 39 J. CLINICAL PSYCHOL. 544 (1983).
397. RICHARD ROGERS, ROGERS CRIMINAL RESPONSIBILITY ASSESSMENT SCALES (available from Psychological
Assessment Resources, Inc., Odessa, FL).
398. Michael R. Phillips et al., Psychiatry and the Criminal Justice System: Testing the Myths, 145 AM. J. PSYCHIATRY 605 (1988).
399. “[C]linicians’ determinations were not always independent—a second evaluator may have read the previous evaluator’s report.” Id. at
608.
400. Matthew Large et al., Reliability of Psychiatric Evidence in Serious Criminal Matters: Fitness to Stand Trial and the Defence of Mental
Illness, 43 AUST. N.Z. J. PSYCHIATRY 446 (2009).
401. In 43 cases, two reports were available; in 12 cases, three reports were available; and in 6 cases, four reports were available. For the
analyses described here, Large and colleagues treated each pair of reports separately, which yielded 43 + (12 × 3) + (6 × 6) = 115 report pairs. Id.
at 449.
402. W. Neil Gowensmith et al., How Reliable Are Forensic Evaluations of Legal Sanity?, 37 LAW & HUM. BEHAV. 98 (2013).
403. Id. at 101.
404. See GARY B. MELTON ET AL., COMMUNITY MENTAL HEALTH CENTERS AND THE COURTS: AN
EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES ch. 4 (1985).
405. See Petrila et al., supra note 20, at 60 (reporting that a study of pretrial evaluations in state institutions in Missouri in 1978 revealed that
only 1 of 127 defendants recommended as NGRI was diagnosed as having a personality disorder). See also Richard W. Jeffrey et al., Insanity
Plea: Predicting Not Guilty by Reason of Insanity Adjudications, 16 BULL. AM. ACAD. PSYCHIATRY & L. 35 (1988) (when discriminant
function analyses were used to predict forensic clinicians’ opinions and court decisions for 133 defendants evaluated at Colorado State Hospital,
a diagnosis of personality disorder was a significant factor predicting a clinical opinion that the defendant was sane and a legal outcome of
guilty); Warren et al., Opinion, supra note 255 (diagnoses most strongly associated with clinical recommendations of defendants as sane were
personality disorders and substance use disorders).

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 406. Robert J. Stoller & Robert H. Geertsma, The Consistency of Psychiatrists’ Clinical Judgments, 137 J. NERVOUS & MENTAL
DISEASE 58 (1963). Nested in the 565 items were 8 “nonsense” items that were deemed by the investigators to be fanciful, extremely esoteric,
and completely beyond the data demonstrated in the interview. Several of these items involved psychodynamic symbolism—for example, “At
this point, the patient’s depreciation of the introjected father’s penis is revealed,” or “The loss of a boyfriend is painful for the patient because it
reawakens her secondary envy of mother’s breast.” Though the psychiatrists had been instructed to give inapplicable items a rating of 0, three of
the nonsense items were scored across all six categories of applicability; four others were scored in five of the possible six categories.
407. Id. at 63.
408. Gowensmith et al., supra note 402, at 102–03.
409. Anasseril E. Daniel & Phillip W. Harris, Female Offenders Referred for Pre-Trial Psychiatric Evaluation, 9 BULL. AM. ACAD.
PSYCHIATRY & L. 40 (1981).
410. Fukunaga et al., supra note 394.
411. Norman G. Poythress, unpublished data (1982).
412. Richard Rogers et al., Legal Outcome and Clinical Findings: A Study of Insanity Evaluations, 14 BULL. AM. ACAD. PSYCHIATRY
& L. 219 (1986).
413. Robert M. Wettstein et al., A Prospective Comparison of Four Insanity Defense Standards, 148 AM. J. PSYCHIATRY 21 (1991).
414. Id. at 25. Other legal outcomes were guilty (9.8%), not guilty (6.3%), and GBMI (or other disposition) (2.7%). Id. at 25–26.
415. Gowensmith et al., supra note 402, at 102.
416. As Bonnie and Slobogin have argued, there is a natural skepticism in judges and jurors who serve in criminal cases, which serves as a
check against undue weight’s being assigned to mental health expert opinions. Bonnie & Slobogin, supra note 186, at 493. Some empirical
findings support the existence of this natural skepticism. See Diane L. Bridgeman & David Marlowe, Jury Decision-Making: An Empirical Study
Based on Actual Felony Trials, 64 J. APPLIED PSYCHOL. 91 (1979); Randolf B.A. Read et al., Psychiatrists and the Jurors’ Dilemma, 6
BULL. AM. ACAD. PSYCHIATRY & L. 1 (1978); Rita Simon, The Dynamics of Jury Behavior, in THE ROLE OF THE FORENSIC
PSYCHOLOGIST (Gerald Cooke ed., 1980).
417. Warren et al., Opinion, supra note 255.
418. Id. at 181.
419. Id.
420. Gowensmith et al., supra note 402, at 102.
421. Id. at 178.
422. Id. at 183 (Table 5).
423. Wettstein et al., supra note 413.
424. Id. at 24 (Table 4). Percentages do not sum to 100%, due to missing data.
425. Warren et al., Opinion, supra note 255, at 181 (Table 3) (showing that 407 of 576 cases yielding findings of “insanity” were conducted
by psychologists). The denominator likely exceeds the total number of cases reported in the text (563), because some cases involved more than
one clinical examiner.
426. Wettstein et al., supra note 413, at 24.
427. See, e.g., AAPL Insanity Guideline, supra note 341; IRA K. PACKER, EVALUATION OF CRIMINAL RESPONSIBILITY (2009);
Alan M. Goldstein et al., Evaluation of Criminal Responsibility, in 11 HANDBOOK OF PSYCHOLOGY: FORENSIC PSYCHOLOGY
381 (Alan M. Goldstein ed., 2003); Thomas G. Gutheil, Assessment of Mental State at the Time of the Criminal Offense: The Forensic
Examination, in RETROSPECTIVE ASSESSMENT OF MENTAL STATES IN LITIGATION: PREDICTING THE PAST 73
(Robert I. Simon & Daniel W. Shuman eds., 2002).
428. Stephen J. Morse, Failed Explanations and Criminal Responsibility: Experts and the Unconscious, 68 VA. L. REV. 971, 1049 (1982).
429. See, e.g., Innocence Project, False Confessions & Recording of Interrogations, available at https://www.innocenceproject.org/false-
confessions-recording-interrogations (reporting that approximately 1,000 jurisdictions in the United States use interrogation room recording
equipment). The advent of police body cameras may provide evaluators with even better information about crime scenes. Some predict that such
cameras will become as common as dashboard cameras within the very near future. See Body Worn Cameras (Feb. 14, 2013), available at
http://lawofficer.com/archive/body-worn-cameras.
430. This case was observed by Poythress.
431. W.M.L. Finlay & E. Lyons, Acquiescence in Interviews with People Who Have Mental Retardation, 40 MENTAL RETARDATION
14 (2002); L.W. Heal & C.K. Sigelman, Response Biases in Interviews of Individuals with Limited Mental Ability, 39 J. INTELL.
DISABILITY RES. 331 (1995).
432. Some sample wording of such an explanation appears in the AAPL Insanity Guideline, supra note 341, at S21–S22.
433. See ROGERS, supra note 397.

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 434. Id. at 1.
435. The decision trees relate to the ALI and M’Naghten insanity standards and the GBMI verdict. Id. at 33, 36, and 38.
436. See, e.g., THOMAS GRISSO, EVALUATING COMPETENCIES (2003); Robert Nicholson, Forensic Assessment, in
PSYCHOLOGY AND LAW: THE STATE OF THE DISCIPLINE 121 (Ronald Roesch et al. eds., 1999); Steven Golding et al., The
Assessment of Criminal Responsibility: Current Controversies, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 379 (Allen K. Hess
& Irving B. Weiner eds., 2d ed. 1999).
437. See, e.g., Richard Rogers & Charles P. Ewing, The Measurement of Insanity: Debating the Merits of the R-CRAS and Its Alternatives, 15
INT’L J. L. & PSYCHIATRY 113 (1992); Richard Rogers & Kenneth W. Sewell, The RCRAS and Insanity Evaluations: A Re-Examination of
Construct Validity, 17 BEHAV. SCI. & L. 181, 192–93 (1999) (“many practitioners consider the wrong issue in worrying whether the R-
CRAS meets exemplary standards . . . In light of past and current research, the R-CRAS remains the best validated measure for insanity
evaluations”); and Richard Rogers, An Introduction to Insanity Evaluations, in LEARNING FORENSIC ASSESSMENT: RESEARCH
AND PRACTICE 97, 110, 112 (Rebecca Jackson & Ronald Roesch eds., 2d ed. 2016) (criticizing views expressed in earlier editions of this
text, and recommending that forensic practitioners “weigh the validity data and criticisms for themselves”) [hereinafter Rogers, Introduction].
438. See generally Morse, supra note 2; Comment, The Psychologist as Expert Witness: Science in the Courtroom, 38 MD. L. REV. 539
(1979).
439. See articles by Rogers et al., supra notes 396 & 437.
440. Rogers, Introduction, supra note 437, at 110. See also Rogers & Sewell, supra note 437, at 184 (citing 1980s studies by Rogers and
colleagues).
441. We did find reports from China that used the RCRAS or modifications thereof. See Weixiong Cai et al., The Reliability and Validity of
the Rating Scale of Criminal Responsibility for Mentally Disordered Offenders, 236 FORENSIC SCI. INT’L 146 (2014), and studies cited
therein.
442. See, e.g., Robert P. Archer et al., A Survey of Psychological Test Use Patterns among Forensic Psychologists, 87 J. PERSONALITY
ASSESSMENT 84, 89 (Table 9) (2006) (only 29 of 86 respondents mentioned the R-CRAS; most never used it); Ira K. Packer, Evaluation of
Criminal Responsibility, in FORENSIC ASSESSMENTS IN CRIMINAL AND CIVIL LAW: A HANDBOOK FOR LAWYERS 32, 40
(Ronald Roesch & Patricia A. Zapf eds., 2013) (summarizing surveys and concluding that “experienced forensic evaluators recognize use of this
instrument as acceptable practice, but do not report using it frequently”). The AAPL Insanity Guideline, supra note 341, does not mention the
R-CRAS.
443. This concern is raised in Robert Lloyd Goldstein, Dr Rogers’ ‘Insanity Detector’ and the Admissibility of Novel Scientific Evidence, 11
MED. & L. 441, 445 (1992) (“Regardless of its possible scientific merit, most courts would find that the R-CRAS fails to satisfy the Frye test
for admissibility of novel scientific evidence”).
444. IRA K. PACKER, EVALUATION OF CRIMINAL RESPONSIBILITY 75 (2009).
445. Golding et al., supra note 436, at 387.
446. See, e.g., MARC J. ACKERMAN, ESSENTIALS OF FORENSIC PSYCHOLOGICAL ASSESSMENT 189 (1999) (in insanity
evaluations, “The clinician should typically administer one IQ test and one achievement test. . . . When selecting standardized personality tests,
the clinician should choose one self-report measure and the Rorschach”); Richard Rogers & Geoffrey R. McKee, Use of the MMPI-2 in the
Assessment of Criminal Responsibility, in FORENSIC APPLICATIONS OF THE MMPI-2 103, 120 (Yossef S. Ben-Porath et al. eds., 1995)
(“The MMPI or MMPI-2 should be a standard assessment measure in most evaluations of insanity and related psycholegal issues”). More
recently, however, Rogers has stated that “psychometric measures do not yield DSM-IV or DSM-5 diagnoses . . . their clinical correlates lack
the necessary precision for establishing specific diagnoses,” and that these measures can “yield unacceptably high false-positive rates.” Rogers,
Introduction, supra note 437, at 102. However, Rogers strongly recommends using the Schedule for Affective Disorders and Schizophrenia. Id.
at 105–06.
447. Randy Borum & Thomas Grisso, Psychological Test Use in Forensic Evaluations, 26 PROF. PSYCHOL.: RES. & PRAC. 465, 469
(Table 3) (1995).
448. This is a point candidly acknowledged even by advocates of testing. See, e.g., Goldstein et al., supra note 436, at 401 (“It must be
emphasized that psychological tests provide information about the defendant’s functioning at the time the tests were administered. They do not
directly provide information regarding the defendant’s behavior at the time of the crime”) (emphasis in original). See also KENNETH S. POPE
ET AL., THE MMPI. MMPI-2, & MMPI-A IN COURT 46 (2d ed. 2000) (“It is important to keep in mind that when the MMPI is
administered at some point after the crime, the results, if valid, reflect the individual’s current (i.e., at the time of test administration) mental
status, which may or may not be similar to the individual’s mental status at the time the crime was committed”) (emphasis in original).
449. AAPL Insanity Guideline, supra note 341, at S26 (citations omitted).
450. See also Lawrence S. Kubie, The Ruby Case: Who or What Was on Trial?, 1 J. PSYCHIATRY & L. 472 (1973).
451. A succinct review of potentially useful instruments in this context (the MMPI-2, the Personality Assessment Inventory, and the

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Structured Interview of Reported Symptoms–2) appears in Rogers, Introduction, supra note 437, at 107–08.
452. ROBERT L. SPITZER & JEAN ENDICOTT, SCHEDULE FOR AFFECTIVE DISORDERS AND SCHIZOPHRENIA (3d
ed. 1978).
453. Rogers, Introduction, supra note 437, at 105.
454. See, e.g., James L. Knoll & Phillip J. Resnick, Insanity Defense Evaluations: Toward a Model for Evidence-Based Practice, 8 BRIEF
TREATMENT & CRISIS INTERVENTION 92 (2008).
455. For more detailed discussions of these issues and other relationships between symptoms and mental states, see Park Dietz, The Mentally
Disordered Offender: Patterns in the Relationship between Mental Disorder and Crime, 15 PSYCHIATRIC CLINICS N. AM. 539 (1992);
Thomas G. Gutheil, Assessment of Mental State at the Time of the Criminal Offense, in RETROSPECTIVE ASSESSMENT OF MENTAL
STATES IN LITIGATION: PREDICTING THE PAST 73, 81–83 (Robert I. Simon & Daniel W. Shuman eds., 2002).
456. Morse, supra note 2, at 604–15.
457. To some extent, the battle over diagnosis in the Hinckley case, maligned by many commentators, may nonetheless have helped the jury
understand the degree of Hinckley’s dysfunction. See generally SLOBOGIN ET AL., supra note 184, at 510–11.
458. For a comprehensive critique of psychodynamic explanations of criminal behavior, see Morse, supra note 428, at 1022.
459. “The notion that much of mental life is unconscious is often challenged by critics of psychoanalysis, but has been extensively validated
by literature from experimental psychology.” GLEN O. GABBARD, PSYCHODYNAMIC PSYCHIATRY IN CLINICAL PRACTICE
11–12 (5th ed. 2014). For many, many examples (described entertainingly), see DAVID MCRANEY, YOU CAN BEAT YOUR BRAIN:
HOW TO TURN YOUR ENEMIES INTO FRIENDS, HOW TO MAKE BETTER DECISIONS, AND OTHER WAYS TO B.
LESS DUMB (2013).
460. For an example, see IAN P. ALBERY ET AL., COMPLETE PSYCHOLOGY 466 (2d ed. 2014) (describing how a psychiatrist
generated symbolic meanings for broom-carrying behavior that experimenters had created through behavioral techniques). The original account
is given in T. Ayllon et al., Interpretation of Symptoms: Fact or Fiction?, 3 BEHAV. RES. & THERAPY 1 (1965).
461. See in particular, e.g., Douglas Mossman, United States v. Lyons: Toward a New Conception of Legal Insanity, 16 BULL. AM. ACAD.
PSYCHIATRY & L. 49 (1988); Stephen J. Morse, Causation, Compulsion, and Involuntariness, 22 BULL. AM. ACAD. PSYCHIATRY &
L. 159 (1994); Christopher Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 36–38 (2003).
462. Morse, supra note 134, at 1594 n.23 (noting that the DSM-IV criteria for obsessive–compulsive behavior define compulsions as “aimed
at preventing or reducing distress or preventing some dreaded event or situation”). The same phrase appears in DSM-5, supra note 102, at 237.
463. At least four behavioral manifestations have been represented under the unitary term “impulsivity.” Stephen P. Whiteside & Donald R.
Lynam, The Five Factor Model and Impulsivity: Using a Structural Model of Personality to Understand Impulsivity, 30 PERSONALITY &
INDIVIDUAL DIFFERENCES 669, 685–86 (2001). These authors identify four behavioral manifestations that have been represented as
“impulsivity”: “Urgency (“the tendency to experience strong impulses, frequently under conditions of negative affect”); “[Lack of] premeditation”
(the tendency to “act on the spur of the moment and without regard to the consequences”); “Lack of perseverance” (“an individual’s [in]ability to
remain focused on a task that may be boring or difficult”); and “Sensation seeking” (“1) a tendency to enjoy and pursue activities that are exciting
and 2) an openness to trying new experiences that may or may not be dangerous”). See generally IMPULSIVITY: THEORY, ASSESSMENT,
AND TREATMENT (Christopher D. Webster & Margaret A. Jackson eds., 1997).
464. Morse, supra note 134, at 1600.
465. Slobogin, supra note 461, at 38.
466. Morse, supra note 134, at 1600–01.
467. Charles R. Clark, Specific Intent and Diminished Capacity, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 350, 372 (Allen
K. Hess & Irving B. Weiner eds., 2d ed. 1999).
468. Charles R. Clark, Clinical Limits of Expert Testimony on Diminished Capacity, 5 INT’L J.L. & PSYCHIATRY 155, 162 (1982).
469. Id. at 164.

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Chapter 9

1. ARTHUR CAMPBELL, THE LAW OF SENTENCING 24–41 (1978).

2. Michael Tonry, Purposes and Functions of Sentencing, 34 CRIME & JUST. 1, 28 (2006) (summarizing the research of three National
Academy of Sciences panels as concluding that “[i]maginable increases in severity of punishments do not yield significant (if any) marginal
deterrence effects”).
3. Bentham made the classical statement in support of deterrence. JEREMY BENTHAM, THE RATIONALE OF PUNISHMENT
(1830). See also Johannes Andenaes, The General Preventive Effects of Punishment, 144 U. PA. L. REV. 949 (1966).
4. These three goals of punishment are often called “individual prevention” goals, to emphasize their offender-specific orientation.
RICHARD BONNIE ET AL., CRIMINAL LAW 23–33 (2d ed. 2004).
5. As such, it tends to conflict with the free-will premise of the criminal justice system [see §§ 1.03(a), 9.04(b)]. For an elaboration of this
thesis, see HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION 73–75 (1968).
6. For descriptions of current research on the efficacy of treatment programs aimed at reducing reliance on drugs, providing vocational
training and treating mental disorder, see THE OXFORD HANDBOOK OF SENTENCING AND CORRECTIONS 463–626 (Joan
Petersilia & Kevin R. Reitz eds., 2012) [hereinafter OXFORD HANDBOOK OF SENTENCING] (overall, finding a modest recidivism-
reducing effect of these types of programs). See also infra text accompanying notes 245–54.
7. See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 50 (2011) (noting that the American
imprisonment rate is above 500 per 100,000, compared to European rates below 100 per 100,000); Christopher Slobogin, How Changes in
American Culture Triggered Hyper-Incarceration: Variations on the Tazian View, 58 HOWARD L.J. 305, 307–12 (2015) (noting huge
differences between U.S. and European imprisonment rates and sentence lengths, and describing research suggesting that crimes rates do not
explain the difference).
8. In 1978 there were 307,384 individuals imprisoned in the United States, distributed between federal (29,803 inmates) and state (277,581
inmates) prisons, and more than 158,000 individuals in local jails, some of them awaiting trial and most others serving time for misdemeanor
convictions. NICHOLAS KITTRIE & ELYCE ZENOFF, SANCTIONS, SENTENCING AND CORRECTIONS: LAW, POLICY
AND PRACTICE 362 (1981). These figures rose sharply through the 1980s, so that by 1992 there were 847,271 people in prison (65,706 in
federal prisons and 781,565 in state prisons), and the jail population had risen to 444,584. U.S. BUREAU OF THE CENSUS,
STATISTICAL ABSTRACT OF THE UNITED STATES, Tables 339 & 338 (1994). Today there are more than 2.35 million people in
United States prisons and jails. U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN THE UNITED STATES, 2014 at 5
(Jan. 21, 2016).
9. See supra note 8.
10. Rutherford Campbell, Sentencing: The Use of Psychiatric Information and Presentence Reports, 60 KY. L.J. 285, 288 (1972).
11. Alan Dershowitz, The Role of Psychiatry in the Sentencing Process, 1 INT’L J.L. & PSYCHIATRY 63, 63–64 (1978).
12. Gray Cavender & Michael Musheno, The Adoption and Implementation of Determinate-Based Sanctioning Policies: A Critical Perspective,
17 GEO. L. REV. 425, 434 (1983).
13. Id.
14. TRANSACTIONS OF THE NATIONAL CONGRESS ON PRISONS AND REFORMATORY DISCIPLINE (Albany 1871)
(Weeds & Parsons eds., 1970), quoted by Dershowitz, supra note 11, at 65.
15. Cavender & Musheno, supra note 12, at 430.
16. Dershowitz, supra note 11, at 6.
17. Williams v. New York, 337 U.S. 241, 247 (1948).
18. Dershowitz, supra note 11, at 6.
19. See, e.g., Gary Mason, Indeterminate Sentencing: Cruel and Unusual Punishment, or Just Plain Cruel? 16 NEW ENG. J. ON CRIM. &
CIV. CONFINEMENT 89 (1990).
20. Andrew Von Hirsch, Recent Trends in American Criminal Sentencing Theory, 42 MD. L. REV. 6, 29 (1983). For further discussion of
this issue, see § 9.07(b).
21. One of the most influential articles in this regard was Robert Martinson, What Works?: Questions and Answers about Prison Reform,
1974 PUB. INT. 22, which concluded that “with few and isolated exceptions, the rehabilitative efforts that have been reported so far had no
appreciable effect on recidivism.” This article is discussed further in § 9.07(b).
22. John Monahan & Mary Ruggiero, Psychological and Psychiatric Aspects of Determinate Criminal Sentencing, 3 INT’L J.L. &
PSYCHIATRY 143 (1980).
23. David Greenberg & Drew Humphries, The Cooptation of Fixed Sentencing Reform, 26 CRIME & DELINQ. 206, 208 (1980).

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 24. Albert Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for “Fixed” and “Presumptive” Sentencing,
126 U. PA. L. REV. 550, 552–53 (1978).
25. John Hogarth, Can Psychiatry Aid Sentencing?, 2 INT’L J.L. & PSYCHIATRY 499, 501 (1979). Hogarth concludes that psychiatry has
a role, but only if as an initial step coerced treatment in the name of rehabilitation is ended, thereby rendering the therapist–offender
relationship benign.
26. A major influence in this shift of opinion was a book: MARVIN FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT
ORDER (1973). Frankel, a former judge, started with the premise that “the almost wholly unchecked and sweeping favors we give to judges in
the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the role of law.” Id. at 5. In Chapter 9 of the
book, he proposed a “Commission on Sentencing,” a proposal eventually adopted by Congress and a number of states.
27. See Richard S. Frase, Sentencing: What’s at Stake for the States, 105 COLUM. L. REV. 1190, 1194–97 (2005) (indicating that roughly
half the states and the federal government have or are considering relatively determinate “guidelines sentencing” systems).
28. The Sentencing Reform Act of 1984 is found at 18 U.S.C. §§ 3551–3625, 3673, 3742, and at 28 U.S.C. §§ 991–98. The United States
Supreme Court upheld the constitutionality of the statute in Mistretta v. United States, 480 U.S. 361 (1989).
29. Todd Clear et al., Discretion and the Determinate Sentence: Its Distribution, Control, and Effect on Time Served, 24 CRIME &
DELINQ. 428 (1978); Stephen Lagoy et al., A Comparative Assessment of Determinate Sentencing in the Four Pioneer States, 24 CRIME &
DELINQ. 385 (1978); Blake Nelson, The Minnesota Sentencing Guidelines: The Effects of Determinate Sentencing on Disparities in Sentencing
Decisions, 10 LAW & INEQ. 217 (1992).
The relationship of race to sentencing has received particular attention. See infra note 210.
30. See, e.g., Symposium on Federal Sentencing, 66 S. CAL. L. REV. 99 (1992); Symposium: Punishment, 101 YALE L.J. 1681 (1992);
Symposium: Making Sense of the Federal Sentencing Guidelines, 25 U.C. DAVIS L. REV. 563 (1992).
31. Michael Tonry, The Success of Judge Frankel’s Sentencing Conversion, 64 U. COLO. L. REV. 713 (1993). See also Amy Baron-Evans &
Kate Stith, Booker Rules, 160 U. PA. L. REV. 1631, 1636–67 (2012) (criticizing the federal guidelines system even after recent reforms); Frank
Bowman, Sentencing Guidelines: Where We Are and How We Got There, 44 ST. LOUIS U. L.J. 405 (2000) (stating that the author might be
“one of the only academics” who likes the federal sentencing guidelines, but conceding that many of the sentences imposed under them are too
high); Daniel Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentences, 101 YALE L.J. 1681
(1992); Gerald Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 28 AM. CRIM. L. REV. 161 (1991). Heaney, who studied
sentencing under the guidelines in three federal districts in 1989, also concluded that prosecutors and probation officers, because of their
influence over the charge, had even more influence under the federal guidelines than before. Id. at 170–75.
32. 543 U.S. 220 (2005).
33. Stephen Fennell & William Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in
Federal Courts, 93 HARV. L. REV. 1613, 1621–22 (1980).
34. Andrew Von Hirsch & Kathleeen Hanrahan, Determinate Penalty Systems in America: An Overview, 27 CRIME & DELINQ. 289, 291
(1981).
35. Von Hirsch, supra note 20. Von Hirsch pointed out that incapacitation and deterrence could play roles in a determinate sentencing
scheme. However, the notion of “commensurate” punishment or “just deserts” (i.e., the idea that the offender is punished in proportion to the
severity of the offense) seems to have had the most impact as a conceptual underpinning for statutory revision. In large part, this development is
probably due to the influence that Von Hirsch himself has had on this movement. His book DOING JUSTICE (1976) has become a basic text
for advocates of determinate sentencing.
36. Von Hirsch & Hanrahan, supra note 34, at 294.
37. Cavender & Musheno, supra note 12, at 447 n.81 (reporting that by the 1980s, Alaska, Arizona, California, New Jersey, New Mexico,
and North Carolina had adopted presumptive sentencing).
38. By the 1980s, Colorado, Illinois, Indiana, Missouri, and Tennessee had adopted a definite sentencing scheme. Id. at 447 n.82. Maine
used a variation on this type of sentencing. Id. at 462 (Table 2).
39. See National Association of Sentencing Commissions, About NASC (July 2016), available at http://thenasc.org/aboutnasc.html (listing
sentencing commissions in the federal government and Alabama, Alaska, Arkansas, Connecticut, Delaware, the District of Columbia, Illinois,
Kansas, Louisiana, Maryland, Massachusetts, Missouri, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Utah, Virginia,
and Washington). See also Richard Frase, State Sentencing Guidelines: Diversity, Consensus and Unresolved Policy Issues, 105 COLUM. L.
REV. 1190, 1195 (2005).
40. Cavender & Musheno, supra note 12, at 448.
41. Lagoy et al., supra note 29, at 385.
42. Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 CAL. L. REV. 1117, 1138
(2011) (“[T]oday, 95 percent of criminal convictions result from guilty pleas and only 5 percent result from trials. Plea bargaining is no longer a

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negligible exception to the norm of trials; it is the norm”).
43. See, e.g., Albert Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CHI. L. REV. 901 (1991); Eric
Berlin, Comment: The Federal Sentencing Guidelines’ Failure to Eliminate Sentencing Disparity: Governmental Manipulations before Arrest,
1993 WIS. L. REV. 187 (1993). Both articles argue that prosecutors and investigative officers wield significant control over sentencing,
primarily through decisions categorizing the offense to be charged (which ultimately forms the basis for the sentence). Studies of plea-
bargaining practices in three cities under the federal sentencing guidelines found a significant amount of manipulation of plea bargaining by
prosecutors, albeit often to avoid imposition of mandatory minimum sentences. Ilene Nagel & Stephen Schulhofer, A Tale of Three Cities: An
Empirical Study of Charging and Bargaining Practices under the Federal Guidelines, 66 S. CAL. L. REV. 501 (1992); Stephen Schulhofer &
Ilene Nagel, Negotiated Pleas under the Federal Sentencing Guidelines: The First Fifteen Months, 27 AM. CRIM. L. REV. 231 (1989). The
authors concluded that “prosecutorial discretion, in charging and in the plea negotiation process, poses obstacles” to ending sentencing disparity
in federal law. Nagel & Schulhofer, supra, at 501.
44. Studies of efforts at banning or sharply curtailing plea bargaining in Alaska, Wayne County (Michigan), and “Hampton” County (a
pseudonym for another Michigan county) are summarized in RESEARCH ON SENTENCING: THE SEARCH FOR REFORM ch. 4
(Alfred Blumstein et al. eds., 1983). The reviewers conclude that plea-bargaining bans and mandatory and determinate sentencing laws have
produced “modest changes” in sentencing outcome, primarily in the direction of some increases of prison use for marginal offenders who might
not previously have received a prison sentence. Id. at 185–86. They also found that partial bans on plea bargaining were readily circumvented
(e.g., a ban on sentence bargaining produced an increase in charge bargaining). Id. at 185, 196–98.
45. Lucian E. Dervan, Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 UTAH L. REV. 51, 61
(2012) (“a general consensus has evolved within plea bargaining scholarship that plea bargaining became a dominant force as a result of
prosecutors gaining increasing power and control in an ever more complex criminal justice system”). See also Alschuler, supra note 24, at 551.
46. Six states still routinely rely on juries to impose sentences in felony cases (Arkansas, Kentucky, Missouri, Oklahoma, Texas, and
Virginia). Nancy King, Felony Jury Sentencing in Practice: A Three-State Study, 57 VAND. L. REV. 885, 886 (2004).
47. The United States Supreme Court has noted that “we begin with the general proposition that once it is determined that a sentence is
within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” Dorszynski v. United States, 418 U.S.
424, 431 (1974).
48. 542 U.S. 296 (2004).
49. 543 U.S. at 246.
50. Id. at 261–62. Cf. Gall v. United States, 552 U.S. 38 (2007) (holding that a sentence outside the guidelines can be reasonable even in the
absence of “extraordinary circumstances”).
51. Linda Drazga Maxfield, U.S. Sentencing Comm’n Office of Policy Analysis (Apr. 13, 2005) (finding only a 4% decrease in the rate of
sentences that fell within the federal guidelines’ range after Booker).
52. Michael Tonry, Federal Sentencing Reform Since 1984: The Awful as Enemy of the Good, 44 CRIME & JUSTICE 99, 121–122 (2015).
53. Cf. Blakely v. Washington, 542 U.S. at 332 (O’Connor, J., dissenting) (pointing out that indeterminate sentencing is clearly
constitutional under the Sixth Amendment).
54. Morrissey v. Brewer, 408 U.S. 471, 477 (1972).
55. Approximately 20 states have abolished or seriously limited parole. Edward E. Rhine, The Present Status and Future Prospects of Parole
Boards and Parole Supervision, in OXFORD HANDBOOK OF SENTENCING, supra note 6, at 627 (listing Arizona, Arkansas, California,
Connecticut, Delaware, Florida, Illinois, Kansas, Indiana, Maine, Mississippi, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South
Dakota, Virginia, Washington, and Wisconsin).
56. See generally Lagoy et al., supra note 29, at 390, 396 (discussing the diminished role of the parole boards in California and Illinois).
57. See Rhine, supra note 55, at 627.
58. Mempa v. Rhay, 389 U.S. 128 (1967); Townsend v. Burke, 334 U.S. 736 (1948).
59. George Dix, Expert Prediction Testimony in Capital Sentencing: Evidentiary and Constitutional Considerations, 19 AM. CRIM. L. REV.
1, 15 (1981).
60. Alan Dubois & Anne Blanchard, Sentencing Due Process: How Courts Can Use Their Discretion to Make Sentences More Accurate and
Trustworthy, 18 FED. SENT. REP. 84 (2005) (suggesting how Booker can lead to greater procedural protections at sentencing).
61. See Gardner v. Florida, 430 U.S. 349 (1977), and § 9.05.
62. See generally Alan Michaels, Trial Rights at Sentencing, 81 N.C. L. REV. 1771 (2003); People v. Brown, 665 N.E.2d 1290 (Ill. 1996)
(denial of right to allocute does not violate due process, even in a capital case).
63. United States v. Tucker, 404 U.S. 443 (1972).
64. In articulating this exception, the Supreme Court barred the use by a sentencing judge of two prior convictions that were later found to
be constitutionally invalid (because obtained when the defendant did not have counsel). Id. But it has also allowed a sentencing judge to take

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into account a defendant’s prior refusal to cooperate with a government investigation of other individuals, Roberts v. United States, 445 U.S.
552 (1980), as well as a belief that the defendant testified falsely at trial, United States v. Grayson, 438 U.S. 41 (1978).
65. Nancy J. King, Procedure at Sentencing, in OXFORD HANDBOOK OF SENTENCING, supra note 6, at 317, 327.
66. The parolee or probationer is entitled to the following procedural rights before revocation: (1) a “probable cause” finding, with notice to
the parolee that parole has been violated; and (2) a revocation hearing, where the parolee is entitled to written notice, the disclosure of adverse
evidence, an opportunity to be heard in person and to present witnesses, an opportunity to confront and cross-examine adverse witnesses (unless
the hearing officer finds “good cause” not to allow this), a neutral and detached hearing officer (who need not be a judge or a lawyer), and a
written statement giving the decision and the reasons for it. Morrissey v. Brewer, 408 U.S. 471, 484–88 (1972). Legal counsel is not guaranteed
in all cases; rather, counsel need only be provided when the facts are “complex” and/or the petitioner appears to be incapable of “speaking
effectively for himself.” Gagnon v. Scarpelli, 445 U.S. 480 (1981).
67. FED. R. EVID. 1101(d)(3) (“The [Federal Rules of Evidence] do not apply in . . . [p]roceedings for . . . sentencing”); United States v.
Fields, 483 F.3d 313, 342 (5th Cir. 2007) (“No Circuit . . . has applied Daubert to sentencing”).
68. Williams v. New York, 337 U.S. 241, 247 (1948).
69. Id. See also Roberts v. United States, 445 U.S. 552 (1980).
70. Joseph L. Hoffman, Apprendi v. New Jersey: Back to the Future?, 38 AM. CRIM. L. REV. 255, 267–68 (2001).
71. United States v. Jones, 899 F.2d 1097, 1102–03 (11th Cir. 1990). An excellent summary of federal appeals court decisions on the federal
sentencing guidelines is found in Guidelines Sentencing: An Outline of Appellate Case Law on Selected Issues (published periodically by the
Federal Judicial Center).
72. James Weismann, Sentencing Due Process: Evolving Constitutional Principles, 18 WAKE FOREST L. REV. 523, 524 (1982).
73. King, supra note 65, at 327.
74. Id. at 328. See also supra note 50.
75. FED. R. CRIM. P. 32(c)(1) (1994).
76. This description of the preparation of the presentence report and its contents is taken primarily from Fennell & Hall, supra note 33, at
1623–28.
77. OFFICE OF PROBATION AND PRETRIAL SERVICES, ADMINISTRATIVE OFFICE OF THE UNITED STATES
COURTS, THE PRESENTENCE INVESTIGATION REPORT, III-24–III-27 (2006), available at
http://cdn.ca9.uscourts.gov/datastore/library/2013/02/26/Horvath_presentence.pdf.
78. Heaney, supra note 31.
79. See, e.g., United States v. Fanfan, 543 U.S. 220, 228–29 (2005) (indicating that the trial judge would have violated the Sixth Amendment
had he followed the Probation Department’s presentence calculation that Fanfan should receive a federal guidelines sentence of 188–235
months, because that determination was based on an amount of crack cocaine and an assumption about Fanfan’s role in the conspiracy that had
not been proven to a jury, which had merely found Fanfan guilty of a conspiracy involving 500 grams of powder cocaine, for which a sentence of
no more than 78 months should be imposed).
80. Fennell & Hall, supra note 33, at 1626.
81. Hogarth, supra note 25, at 500.
82. Dershowitz, supra note 11, concluded that the continued role of psychiatry in the sentencing process is uncertain, because the objectives
of most sentencing reform efforts are (1) the reduction of discretion in sentencing and (2) renewed emphasis on the crime that has been
committed rather than the criminal who has committed it.
83. Monahan & Ruggiero, supra note 22, at 143.
84. These factors are listed in Research Project: Minnesota Sentencing Guidelines, 5 HAMLINE L. REV. 273, 412–15 (1982).
85. 463 U.S. 880 (1983).
86. For further discussion of these issues, see Christopher Slobogin, Constitutional and Evidentiary Issues Concerning Risk Assessment, in
HANDBOOK OF VIOLENCE RISK ASSESSMENT (Randy K. Otto & Kevin S. Douglas eds., 2d ed. forthcoming).
87. Rhodes v. State, 896 N.E.2d 1193, 1195 (Ind. Ct. App. 2008).
88. Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010).
89. State v. Loomis, 881 N.W.2d 749, 764 (Wisc. 2016).
90. Id. at 763–64.
91. For a description of “three-strikes” laws and the extent to which states use them, see Yan Zhang et al., The Impact of State Sentencing
Policies on the U.S. Prison Population, 37 J. CRIM. JUST. 190 (2009), and Joanna M. Shepherd, Fear of the First Strike: The Full Deterrent
Effect of California’s Two- and Three-Strikes Legislation, 31 J. LEGAL STUDIES 159, 160 (2002).
92. IND. CODE § 35-50-2-8 (1983 supp.).
93. Hallye Jordan, Three Strikes Hit Mostly the Non-Violent, 108 L.A. DAILY J., Jan. 9, 1995, at 1.

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 94. Comment, Selective Incapacitation: Reducing Crime through Predictions of Recidivism, 96 HARV. L. REV. 511, 512 (1983).
95. Id. at 513.
96. Jordan, supra note 93, at 1.
97. In the period studied, of more than 7,400 second- and third-strike cases, 70% were charged with nonviolent, nonserious offenses,
generally drug possession or petty theft. The vast majority of individuals sentenced after two or three “strikes” were convicted of nonviolent or
nonserious offenses. If limited to more serious crimes, on the other hand, these laws may not have much impact. In Illinois, which enacted the
equivalent of a three-strikes law focused on serious felons in 1978, only 92 of the nearly 25,000 people imprisoned between the effective date of
the statute and early 1994 received mandatory life sentences under the law, suggesting very little protection of the public. Harvey Berkman, Few
Felons Out in Three Strikes, 16 NAT’L L.J. 3 (1994). For more recent criticism of three-strikes laws on both empirical and conceptual grounds,
see Michael Vitello & Clark Kelso, A Proposal for a Wholesale Reform of California’s Sentencing Practice and Policy, 38 LOYOLA L.A. L.
REV. 513 (2005).
98. 445 U.S. 263 (1980).
99. 463 U.S. 277 (1983).
100. 538 U.S. 11 (2003).
101. SAMUEL BRAKEL & RONALD S. ROCK, THE MENTALLY DISABLED AND THE LAW 25 (1971).
102. GROUP FOR THE ADVANCEMENT OF PSYCHIATRY (GAP), PSYCHIATRY AND SEX PSYCHOPATH
LEGISLATION: THE 30s TO THE 80s, 950 n.15 (1977) [hereinafter GAP].
103. George Dix, Special Dispositional Alternatives for Abnormal Offenders, in MENTALLY DISORDERED OFFENDERS:
PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 133, 134–35 (John Monahan & Henry Steadman eds., 1983).
104. Note, Washington’s New Violent Sexual Predator Commitment System: An Unconstitutional Law and an Unwise Policy Choice, 14 U.
PUGET SOUND L. REV. 105, 110 n.27 (1990).
105. 521 U.S. 346 (1997).
106. GAP, supra note 102, at 842.
107. Comment, Commitment of Sexual Psychopaths and the Requirements of Procedural Due Process, 44 FORDHAM L. REV. 923, 933,
nn.68–69 (1976).
108. GAP, supra note 102, at 861–67.
109. 386 U.S. 605 (1967).
110. Minnesota ex rel. Pearson v. Probate Ct., 309 U.S. 270 (1940).
111. See Allen v. Illinois, 478 U.S. 364 (1986) [discussed in § 4.02(d)].
112. GAP, supra note 102, at 935.
113. AM. BAR ASS’N (ABA), CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-8.1 (1989).
114. Id. at 457–58. The second edition of the ABA Standards continues to call for repeal of all “dangerous offender” statutes that permit
indeterminate confinement after sentence. ABA, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-10.7 (2d ed. 2016).
115. GAP, supra note 102, at 935.
116. Id. at 936.
117. Id. at 937.
118. Id.
119. Marissa Ceglian, Predators or Prey: Mandatory Listing of Non-Predators on Predatory Offender Registries, 12 J.L. & POL’Y 843, 845 n.4
(2004) (listing statutes).
120. 42 U.S.C. § 14071(e).
121. See Conn. Dep’t of Public Safety v. Doe, 538 U.S. 84 (2003) (sexual offenders have no procedural due process right to a preregistration
hearing on whether they are currently dangerous, because registration law is based solely on the fact of conviction, for which there has been
adequate due process); Smith v. Doe, 538 U.S. 84 (2003) (notification law passed after an offender’s conviction is not an ex post facto law
because it is not punishment).
122. Ass’n for the Treatment of Sexual Abusers, Civil Commitment of Sexually Violent Predators Position Paper (2010), available at
http://www.atsa.com/civil-commitment-sexually-violent-predators (listing Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts,
Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, South Carolina, Texas, Virginia,
Washington, and Wisconsin).
123. Procedurally, the statute works as follows. Near or at the expiration of the criminal sentence, the state files a petition alleging the person
to be a sexually violent predator (SVP). If the court finds probable cause for the petition, the individual is transferred for evaluation, and within
45 days a court hearing is held to determine whether the state can prove beyond a reasonable doubt that the person is an SVP. If so, the
individual is committed to a facility for “control, care, and treatment” until “safe to be at large.” WASH. REV. CODE § 71.09.060(1).

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 124. WASH. REV. CODE § 71.09.020(1).
125. In re Young, 122 Wash. 2d 1, 857 P.2d 989, 992 (1993) (quoting the Act’s legislative history).
126. See generally Alan Dershowitz, The Origins of Preventive Confinement in Anglo-American Law, 43 U. CIN. L. REV. 781 (1974).
127. Note, Civil Commitment of the Mentally Ill: Developments in the Law, 87 HARV. L. REV. 1190, 1230 (1974).
128. Cf. United States v. Salerno, 481 U.S. 739 (1987) (upholding preventive detention prior to trial and providing examples of analogous
situations).
129. John Monahan, The Case for Prediction in the Modified Desert Model of Criminal Sentencing, 5 INT’L J.L. & PSYCHIATRY 103–13
(1982).
130. 504 U.S. 71 (1990).
131. Foucha had been found insane on the basis of testimony that he had a drug-induced psychosis. Upon recovery, he was diagnosed as
having antisocial personality disorder, which the Court assumed, based on a concession by the state, was not a “mental disease.” At another
point in its opinion, the Court expressed concern that Louisiana’s law “would permit the State to hold indefinitely any other insanity acquittee
not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct” (emphasis added). Ultimately, however,
there is no clear message from the Court as to what might constitute a mental illness for purposes of this exception to the ban on preventive
confinement, probably because the Court did not focus on the issue and has very little expertise on it.
132. 504 U.S. at 87–88.
133. 521 U.S. 346 (1997).
134. Id. at 357.
135. 534 U.S. 407 (2002).
136. Id. at 413.
137. Id. at 415.
138. W. Lawrence Fitch, Sex Offender Commitment in the United States: Legislative and Policy Concerns, in SEXUALLY COERCIVE
BEHAVIOR: UNDERSTANDING AND MANAGEMENT 489, 496 (Table I) (Robert Prentky et al. eds., 2003).
139. 521 U.S. at 361–62.
140. Id. at 368–69.
141. 531 U.S. 250 (2001).
142. Id. at 265.
143. See Eric S. Janus & Brad Bolin, An Endgame for Sexually Violent Predator Laws: As-Applied Invalidation, . OHIO ST. J. CRIM. L. 25,
26, 32 (2008).
144. Karsjen v. Jesson I, 109 F. Supp. 3d 1139 (June 2015); Karsjen v. Jesson II, 146 F. Supp. 3d 916 (Oct. 2015).
145. W. Lawrence Fitch & Debra A. Hammen, The New Generation of Sex Offender Commitment Laws: Which States Have Them and How
Do They Work?, in PROTECTING SOCIETY FROM SEXUALLY DANGEROUS OFFENDERS 27, 33 (Bruce J. Winick & John Q.
LaFond eds., 2002). A number of other states have enacted legislation that provides special sentences for sexual offenders: California, Colorado,
Nebraska, Oregon, Tennessee, and Utah. See Appendix in Kansas v. Hendricks, 521 U.S. at 397 (Breyer, J., dissenting).
146. Janine Pierson, Construing Crane: Examining How States Have Applied Its Lack-of-Control Standard, 160 U. PA. L. REV. 1527, 1559
(2012) (surveying lower courts’ cases and concluding that “[t]he Court’s decision not to elaborate on this standard has given states wide
discretion to determine what amount and kind of proof is sufficient to justify commitment and has resulted in numerous problems that sacrifice
due process”). See, e.g., People v. Wollschlager, 122 Cal. Rptr. 2d 171, 174 (Ct. App. 2002) (California SVP law “clearly presumes a serious
difficulty in controlling behavior: if a person cannot control his dangerous behavior to the extent that he is predisposed to commit criminal
sexual acts and thus becomes a menace to others, he has sufficient volitional impairment to be found an SVP”); In re Luckabaugh, 568 S.E.2d
338, 348 (S.C. 2002) (no special finding regarding volitional impairment is required); In re Laxton, 647 N.W.2d 784, 793–95 (Wis. 2002)
(serious difficulty in control is implicit in nexus between mental disorder and substantial probability of future sexual violence; failure to instruct
on serious difficulty is not error). In possible contrast, see Converse v. Dep’t of Children and Families, 823 So. 2d at 295, 297 (Fla. Ct. App.
2002) (stating a jury must find that the offender’s dangerousness was caused by or linked with a mental abnormality that made it “difficult, if not
impossible” to control behavior); Thomas v. State, 74 S.W.3d 789, 790 (Mo. 2002) (stating that “‘mental abnormality’ means a congenital or
acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree”
that causes the individual serious difficulty in controlling behavior).
147. See, e.g., People v. Superior Court (Ghilotti), 27 Cal. 4th 888, 895, 119 Cal. Rptr. 2d 1, 6, 44 P.3d 949, 954 (2002) (statutory standard
of “likely to reoffend” does not “require an evaluator to determine there is a better than even chance of new criminal sexual violence if the person
is free of custody and mandatory treatment”).
148. 510 N.W.2d 910 (Minn. 1994).
149. Quoting State ex rel. Pearson v. Probate Ct., 205 Minn. 545, 287 N.W. 297 (1939).

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 150. 518 N.W.2d 609 (Minn. 1994).
151. One expert had testified that Linehan was “extremely impulsive” when under the influence of alcohol, but that he normally was a
“stable, intact and fairly controlled personality” whose behavior was “planful” and “controlled.” 518 N.W.2d at 613.
152. Id. at 614.
153. In re Civil Commitment of Ince, 2013 WL 1092438 (Minn. Ct. App. 2013).
154. 18 U.S.C. §§ 5005–5026.
155. Pub. L. No. 98-473, 98 Stat. 2014 (1984).
156. Note, Sentencing of Youthful Misdemeanants under the Youth Corrections Act: Eliminating Disparities Created by the Federal Magistrate
Act of 1979, 51 FORDHAM L. REV. 1254 (1983).
157. Wilfred J. Ritz, Federal Youth Corrections Act: The Continuing Charade, 13 U. RICH. L. REV. 743 (1979).
158. 18 U.S.C. § 5006(d).
159. 18 U.S.C. § 4216.
160. 18 U.S.C. § 5010(b).
161. 18 U.S.C. § 5017.
162. 18 U.S.C. § 5021.
163. 18 U.S.C. §§ 4251–55.
164. 28 U.S.C.A. § 2902 (1994); National Addict Rehabilitation Act of 1966, 42 U.S.C. § 3401.
165. Pub. L. No. 98-473, 98 Stat. 2077 (1984) (repealing 18 U.S.C. § 4251); 42 U.S.C. § 3405(c)(1) (2000) (repealing 28 U.S.C. § 2902).
166. U.S.S.G. § 5H1.4.
167. Pamela Casey, The Evolving Role of Courts, 15 APLS NEWS 3 (No. 2, 1995). For a critical look at drug courts, see JAMES L.
NOLAN, REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 40, 42 (2001).
168. 408 U.S. 238 (1972).
169. Id. at 293 (Brennan, J.).
170. Id. at 251 (Douglas, J.).
171. 428 U.S. 280, 305 (1976).
172. 536 U.S. 304 (2003).
173. Id. at 313–17 (noting that a majority of death penalty states as well as national and international bodies are against such executions).
174. Id. at 318–20.
175. 543 U.S. 551 (2005).
176. 536 U.S. at 308 n.3.
177. See, e.g., In re Hawthorne, 35 Cal. 4th 40, 48, 105 P.3d 552, 557, 24 Cal. Rptr. 3d 189, 195 (2005) (defining “mental retardation” as
“significantly subaverage intellectual functioning and deficiencies in adaptive behavior” with onset before 18, with a concurring opinion
suggesting that the person must fall within or below the IQ range of 70–75). See also Alexis Krulish Dowling, Post-Atkins Problems with
Enforcing the Supreme Court’s Ban on Executing the Mentally Retarded, 33 SETON HALL L. REV. 773, 789–93 (2003) (describing various
state definitions, ranging from an IQ below 65 in Arkansas and Arizona to definitions that avoid IQ scores altogether).
178. 134 S. Ct. 1986 (2014).
179. 137 S. Ct. 1039 (2017).
180. The resolution reads:

Defendants should not be executed or sentenced to death if, at the time of the offense, they had a severe mental disorder or disability that
significantly impaired their capacity (a) to appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational
judgment in relation to conduct, or (c) to conform their conduct to the requirements of the law. A disorder manifested primarily by repeated
criminal conduct or attributable solely to the acute effects of voluntary use of alcohol or other drugs does not, standing alone, constitute a
mental disorder or disability for purposes of this provision.

See full resolution and commentary at http://www.americanbar.org/groups/committees/death_penalty_representation/resources/dp-

policy/mental-illness-2006.html. For arguments supporting this proposal, see Christopher Slobogin, What Atkins Could Mean for People with
Mental Illness, 33 N.M. L. REV. 293 (2003).
181. Atkins v. Virginia, 546 U.S. at 314–15 (listing 30 states—18 of which are death penalty states—that exempted people with intellectual
disabilities from the death penalty); Roper v. Simmons, 543 U.S. at 564 (listing 30 states—18 of which are death penalty states—that exempted
youth under 18 from the death penalty).
182. Woodson v. North Carolina, 428 U.S. at 305 (striking down the mandatory imposition of the death sentence upon conviction of first-
degree murder).

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 183. 438 U.S. 586, 597 (1978).
184. For a description and analysis of typical statutes, see Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two
Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 370–71 (1995); George Dix, Appellate Review of the
Decision to Impose Death, 68 GEO. L.J. 97, 107 (1979).
185. Ellen Fels Berkman, Mental Illness as an Aggravating Circumstance in Capital Sentencing, 89 COLUM. L. REV. 291, 297 (1989)
(noting that “nearly two dozen jurisdictions list as a statutory mitigating circumstance the fact that the defendant’s capacity to appreciate the
criminality of her conduct was substantially impaired, often as a result of mental defect or disease,” and that an “equally high number of states
includes ‘extreme mental or emotional disturbance’ as a mitigating factor”).
186. For typical mitigators, see Carissa Byrne Hessick & Douglas A. Berman, Toward a Theory of Mitigation, 96 B.U. L. REV. 161, 185–
203 (2016).
187. These factors are all taken from Florida cases. FLORIDA PUBLIC DEFENDERS ASS’N, DEFENDING CAPITAL CASES ch. 3
(1992).
188. See, e.g., FLA. STAT. § 921.141(5). In some states, however, nonstatutory aggravating factors may be considered.
189. See Mitzi Dorland & Daniel Krauss, The Danger of Dangerousness in Capital Sentencing, 29 LAW & PSYCHOL. REV. 63, 64 n.5, 65
n.12 (2005) (listing 6 states that make dangerousness a statutory aggravator and roughly 20 other states that permit it to be argued as a
nonstatutory aggravator).
190. VA. CODE ANN. § 19.2-264.4(c).
191. Jurek v. Texas, 428 U.S. 262 (1976).
192. 463 U.S. 880 (1983).
193. United States v. Coonce, 2014 WL 1018081 *4–5 (W.D. Mo. 2014).
194. 476 U.S. 1 (1986).
195. Miller v. State, 373 So. 2d 882 (Fla. 1979). See also Huckaby v. State, 343 So. 2d 29, 34 (Fla. 1977).
196. Zant v. Stephens, 462 U.S. 862, 885 (1976).
197. See Christopher Slobogin, Mental Illness and the Death Penalty, 24 MENTAL & PHYSICAL DISABILITY L. REP. 667, 669–70
(2000) (collecting research); John Blume et al., Future Dangerousness in Capital Cases: Always “At Issue,” 86 CORNELL L. REV. 397, 398
(2001). But see Michelle Barnett et al., When Mitigation Evidence Makes a Difference: Effect of Psychological Mitigating Evidence on Sentencing
Decisions at Capital Trials, 22 BEHAV. SCI. & L. 751 (2004) (concluding, based on a vignette study using undergraduates, that expert
testimony regarding mental disorder might have mitigating effect in capital proceedings).
198. For additional tips, see generally Berkman, supra note 185, at 306–08; John Blume & Pamela Blume Leonard, Offering Evidence of
Mental Retardation, 4 CRIM. PRAC. GUIDE 12 (2003); Michael L. Perlin, Professionalism, Mental Disability, and the Death Penalty: “The
Executioner’s Face Is Always Well-Hidden,” 41 N.Y.L. SCH. L. REV. 201, 209 (1996).
199. Barefoot v. Estelle, 463 U.S. at 896 (Blackmun, J., dissenting).
200. See generally Dix, supra note 184.
201. Gardner v. Florida, 430 U.S. 349 (1977).
202. See Carol Steiker, Things Fall Apart, but the Center Holds: The Supreme Court and the Death Penalty, 77 N.Y.U. L. REV. 1475, 1481
n.20 (2002) (noting that the statutes of ten states explicitly provide that the rules of evidence do not apply in capital sentencing).
203. 470 U.S. 68 (1985).
204. Kevin Clancy et al., Sentence Decisionmaking: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity, 72 J.
CRIM. L. & CRIMINOLOGY 524, 535 (1981). Factors that influenced sentence disparity included (1) the judges’ overall value orientations
about the functions of the criminal sanction, (2) judgments about the appropriate goal of case-specific sentences, (3) perceptions about the
severity of the sentences themselves, (4) a predisposition to impose relatively harsh or lenient sanctions, and (5) the manner in which each judge
perceived the seriousness of the particular attributes of a given case. Id. at 553–54. See also Brian Forst & Charles Wellford, Punishment and
Sentencing: Developing Sentencing Guidelines Empirically from Principles of Punishment, 33 RUTGERS L. REV. 799 (1981).
205. Ryan S. Scott, Inter-Judge Sentencing Disparity after Booker: A First Look, 63 STAN. L. REV. 1, 4 (2010) (after Booker made the
guidelines advisory, “the effect of the judge on sentence length has doubled in strength;” also finding that while some judges routinely stay
within the guidelines, other “‘free at last’ judges now sentence below the guideline range at triple or quadruple their pre-Booker levels”).
206. Shari S. Diamond, Order in the Court: Consistency in Criminal Court Decisions, in 2 PSYCHOLOGY & LAW 123 (Am.
Psychological Ass’n Master Lecture Series, James Scheirer & Barbara Hammonds eds., 1983).
207. Daniel Krauss, Adjusting Risk of Recidivism: Do Judicial Departures Worsen or Improve Recidivism Prediction under the Federal
Sentencing Guidelines? 22 BEHAV. SCI. & L. 731 (2004).
208. Nancy J. King et al., When Process Affects Punishment: Differences in Sentences after Guilty Plea, Bench Trial, and Jury Trial in Five
Guidelines States, 105 COLUM. L. REV. 959, 992 (2005) (finding increases in sentences for those who go to trial ranging “from 13% to 461%

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in Washington, from 58% to 349% in Maryland, and from 23% to 95% in Pennsylvania”). See also Jed Rakoff, Why Innocent People Plead
Guilty, N.Y. REVIEW OF BOOKS, Nov. 20, 2014, available at http://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-
guilty/?insrc=whcat (“in 2012, the average sentence for federal narcotics defendants who entered into any kind of plea bargain was five years and
four months, while the average sentence for defendants who went to trial was sixteen years”).
209. Alan J. Lizotte, Extra-Legal Factors in Chicago’s Criminal Courts: Testing the Conflict Model of Criminal Justice, 25 SOC. PROBS. 564
(1978); George W. Baab & William R. Furgeson, Comment, Texas Sentencing Patterns: A Statistical Study, 45 TEX. L. REV. 471 (1967).
210. See Cassia Spohn, Race, Crime and Punishment in the Twentieth and Twenty-First Centuries, 44 CRIME & JUST. 49, 72–78 (2015)
(describing the “five waves” of research on race and punishment); Tracy Schlesinger, The Cumulative Effects of Racial Disparities in Criminal
Processing, 2007 J. INST. JUST. & INT’L STUDIES 261 (finding racial effects mediated by a number of variables, including bail decisions);
Disparity in Sentencing: Race and Gender, 15 FED. SENT. REP. 160 (2003) (describing the views of a number of scholars on the issue); Jon’a
Meyer & Paul Jesilow, Research on Bias in Judicial Sentencing, 26 N.M. L. REV. 107 (1996) (providing a careful survey of the research through
the early 1990s).
211. See, e.g., Ronit Dinovitzer, The Myth of Rapists and Other Normal Men: The Impact of Psychiatric Considerations on the Sentencing of
Sexual Assault Offenders, 12 CAN. J.L. & SOC’Y 147 (1997) (“judicial perceptions of mental disorder act as aggravating factors in the
sentencing of sexual assault offenders when a judge also believes that force has been used in the commission of the offence”).
212. See U.S. SENTENCING COMM’N, FIFTEEN YEARS OF GUIDELINE SENTENCING: AN ASSESSMENT OF HOW
WELL THE FEDERAL CRIMINAL JUSTICE SYSTEM I. ACHIEVING THE GOALS OF SENTENCING REFORM 52 (2004),
available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/15-year-
study/15_year_study_full.pdf (finding “that while whites and African Americans were sentenced to similar sentence lengths in the pre-
Guidelines federal system, within ten years of their implementation, the average sentence quadrupled for African American defendants, while
only doubling for white defendants”).
213. Gregory W. Carman & Tamar Harutunian, Fairness at the Time of Sentencing: The Accuracy of the Presentence Report, 78 ST. JOHN’S
L. REV. 1, 1 (2004) (“The presentence investigation report or presentence report (PSR) is considered to be the most important document in
the sentencing and correctional processes involving criminal defendants”).
214. See generally Keith A. Findley & Meredith J. Ross, Comment, Access, Accuracy and Fairness: The Federal Presentence Investigation
Report under Julian and the Sentencing Guidelines, 1989 WIS. L. REV. 837. See also Elizabeth Lear, Is Conviction Irrelevant?, 40 UCLA L.
REV. 1179, 1203 (1993) (“hearsay statements contained in the presentence report often provide the sole justification for a substantially greater
term of imprisonment under the [federal sentencing] Guidelines”).
215. Melissa Hamilton, McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences, 33 CARDOZO L. REV. 2199,
2241 (2014).
216. John Schmolesky & Timothy Thorson, The Important of the Presentence Investigation Report After Sentencing, 18 CRIM. L. BULL.
406, 407–11 (1982).
217. Id. at 423. See also the articles and cases cited by these authors at nn. 91–95 and accompanying text; Timothy Bakken, The Continued
Failure of Modern Law to Create Fairness and Efficiency: The Presentence Investigation Report and Its Effect on Justice, 40 N.Y.L. SCH. L. REV.
363 (1996); John C. Coffee, The Future of Sentencing Reform: Emerging Legal Issues in the Individualization of Justice, 73 MICH L. REV. 1361
(1975).
218. FED. R. CRIM. P. 32(f) & (g).
219. Id. at 32(i).
220. Id. at 32(d)(3).
221. Id. at 32(i)(1)(b).
222. Fennell & Hall, supra note 33.
223. Id. at 1652.
224. Carman & Harutunian, supra note 213, at 6.
225. Id.
226. Nathan Sidley, The Evaluation of Prison Treatment and Preventive Detention Programs: Some Problems Faced by the Patuxent
Institution, 2 BULL. AM. ACAD. PSYCHIATRY & L. 73 (1974); Vladimir J. Konecni et al., Prison or Mental Hospital: Factors Affecting the
Processing of Persons Suspected of Being “Mentally Disordered Sex Offenders,” in NEW DIRECTIONS IN PSYCHOLEGAL RESEARCH
87–124 (Paul Lipsitt & Bruce D. Sales eds., 1980) (if the 9 cases in which the court ordered a continuance for further psychiatric studies are
discounted, the concordance rate for the remaining 104 cases is 99%).
227. Ian G. Campbell, The Influence of Psychiatric Pre-Sentence Reports, 4 INT’L J.L. & PSYCHIATRY 89 (1981); Charles E. Smith, A
Review of the Presentence Diagnostic Procedure Study in North Carolina, 8 N.C. CEN. L.J. 17, 31 n.27 (1976).
228. U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A, § 5K2.13. For an evaluation of this standard, see Eva E. Subotnik, Past

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Violence, Future Danger?: Rethinking Diminished Capacity Departures under Federal Sentencing Guidelines §5K2.13, 102 COLUM. L. REV.
1340 (2002).
229. United States v. Poff, 927 F.3d 588, 595 (7th Cir. 1991) (Easterbrook, J., dissenting). See, also United States v. Chambers, 885 F. Supp.
12 (D.D.C. 1995) (reducing sentence of a person with an intellectual disability from the federal guidelines’ minimum of 188 months to 21
months); cf. United States v. Lewinson, 988 F.2d 1005 (9th Cir. 1993) (holding that mental disorder need not be “severe” to warrant downward
departure, as long as it resulted in “significant impairment” affecting “behavior and decision-making during the offense period”).
230. See Michael L. Perlin & Keri K. Gould, Rashomon and the Criminal Law: Mental Disability and the Federal Sentencing Guidelines, 22
AM. J. CRIM. L. 431, 448–49 (1995); see also United States v. Roach, 296 F.3d 565 (7th Cir. 2002) (reversing a lower court’s decision
imposing no prison time on an offender with a “shopping addiction”).
231. Carol Bohmer, Bad or Mad?—The Psychiatrist in the Sentencing Process, 4 J. PSYCHIATRY & L. 23, 36 (1976).
232. Craig Haney, Politicizing Crime and Punishment: Redefining “Justice” to Fight the “War on Prisoners,” 114 W. VA. L. REV. 373, 396
(2012) (pointing out that sentencing reforms focused on the crime “decontextualizes” the offender by looking solely on his or her attributes at
the time of the offense).
233. Tapia v. United States, 564 U.S. 319 (2011) (holding that extending a sentence based on rehabilitative needs is inconsistent with the
federal sentencing guidelines).
234. Elliot L. Atkins & Clarence Watson, Sentencing, in HANDBOOK OF FORENSIC ASSESSMENT: PSYCHOLOGICAL AND
PSYCHIATRIC PERSPECTIVES 49, 50–51 (Eric Y. Drogin et al. eds., 2011).
235. Id. at 51.
236. On this point, see E. Lea Johnston, Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness, 103 J. CRIM. L. &
CRIMINOLOGY 147, 158–83 (2013) (detailing evidence of hardships experienced by prisoners with serious mental disorders).
237. American Academy of Psychiatry and the Law (AAPL), AAPL Practice Guideline for the Forensic Assessment, 43 J. AM. ACAD.
PSYCHIATRY & L. S3, S21 (2015 supp.) [hereinafter AAPL Assessment Guideline].
238. See KiDeuk Kim et al., The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and
Background Analysis 1 (Apr. 7, 2015), available at http://www.urban.org/research/publication/processing-and-treatment-mentally-ill-persons-
criminal-justice-system/view/full_report (citing epidemiological studies estimating that 15–24% of prison inmates are afflicted with severe
mental illnesses).
239. “An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health
problem.” Id. at 8.
240. NAT’L INSTITUTE OF CORRECTIONS, OFFENDER NEEDS ASSESSMENT: MODELS AND APPROACHES (1984).
241. Atkins & Watson, supra note 234, at 53–55.
242. D.A. ANDREWS & JAMES L. BONTA, LEVEL OF SERVICE INVENTORY—REVISED USER’S MANUAL (2000).
243. For an introduction, see Michael J. Mahoney et al., Mental Health Screening and Brief Assessments, in OXFORD TEXTBOOK OF
CORRECTIONAL PSYCHIATRY 57 (Robert L. Trestman et al. eds., 2015).
244. See, e.g., AM, PSYCHIATRIC ASS’N, PSYCHIATRIC SERVICES IN CORRECTIONAL FACILITIES 29–35 (3d ed. 2016).
For a review of clinical evaluation strategies specific to sex offenders, see Robert J. McGrath, Clinical Strategies for Evaluating Sexual Offenders,
in SEXUAL OFFENDING: PREDISPOSING ANTECEDENTS, ASSESSMENTS AND MANAGEMENT 265 (Amy Phenix & Harry
M. Hoberman eds., 2016). This comprehensive text also includes several chapters on other assessment techniques, including all the major risk
assessment instruments for sex offenders.
245. See, e.g., Von Hirsch, supra note 20, at 9.
246. Don A. Andrews et al., Does Correctional Treatment Work?: A Clinically Relevant and Psychologically Informed Meta-Analysis, 28
CRIMINOLOGY 369 (1990).
247. Mark W. Lipsey, Juvenile Delinquency Treatment: A Meta-Analytic Inquiry into the Variability of Effects, in META-ANALYSIS FOR
EXPLANATION 83 (Thomas D. Cook et al. eds., 1992).
248. See, e.g., James McGuire, ‘What Works’ to Reduce Re-Offending, in WHAT WORKS IN OFFENDER REHABILITATION: AN
EVIDENCE-BASED APPROACH TO ASSESSMENT AND TREATMENT 20 (L.A. Craig et al. eds., 2013) (summarizing findings
from 100 meta-analyses or systematic reviews of studies on reducing criminal recidivism or antisocial behavior published in 1985–2013).
249. For a thorough discussion of the debate on the efficacy of corrections treatment in reducing recidivism, see D.A. ANDREWS &
JAMES BONTA, THE PSYCHOLOGY OF CRIMINAL CONDUCT 345–392 (5th ed. 2010). See also Paul Gendreau, Offender
Rehabilitation: What We Know and What Needs to Be Done, in CURRENT PERSPECTIVES IN FORENSIC PSYCHOLOGY AND
CRIMINAL JUSTICE (Curt R. Bartol & Anne M. Bartol eds., 2006).
250. The “risk–needs–responsivity” triad was actually a reworking of the original model. McGuire, supra note 248, at 31–32; see also infra
note 338 and accompanying text.

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 251. See, e.g., Mark W. Lipsey et al., Effects of Cognitive-Behavioral Programs for Criminal Offenders, 2007:6 CAMPBELL SYSTEMATIC
REV. 1, 20 (2007) (meta-analysis of cognitive-behavioral programs showing that implementing best practices yields odds ratio of 2.86, implying
52% reduction in recidivism).
252. See R. Karl Hanson et al., First Report of the Collaborative Outcome Data Project on the Effectiveness of Psychological Treatment for Sex
Offenders, 14 SEXUAL ABUSE: J. RES. & TREATMENT 169 (2002) (recidivism reduced from 17.4 to 9.9%); R. Karl Hanson et al., The
Principles of Effective Correctional Treatment also Apply to Sexual Offenders: A Meta-analysis, 36 CRIM. JUST. & BEHAV. 865 (2009) (sexual
recidivism rates of 10.9% in treatment groups, compared to 19.2% in comparison groups); Mark E. Olver & Stephen C.P. Wong, Treatment
Programs for High Risk Sexual Offenders: Program and Offender Characteristics, Attrition, Treatment Change and Recidivism, 18
AGGRESSION & VIOLENT BEHAV. 579, 582–89 (2013) (describing outcomes in subgroups of sex offenders). But see Marnie E. Rice &
Grant T. Harris, The Size and Sign of Treatment Effects in Sex Offender Therapy, 989 ANNALS N.Y. ACAD. SCI. 428, 428 (2003) (reviewing
the first meta-analysis cited above and concluding that “the effectiveness of psychological treatment for sex offenders remains to be
demonstrated”). For a review of sex offender treatments and their principles, see R. Karl Hanson & Pamela M. Yates, Psychological Treatment
of Sex Offenders, 15 CURR. PSYCHIATRY REP. 348 (2013).
253. Atkins & Watson, supra note 234, at 51.
254. Mike Slade, Uses and Abuses of Recovery: Implementing Recovery-oriented Practices in Mental Health Systems, 13 WORLD
PSYCHIATRY 12, 14 (2014); Richard Warner, Recovery from Schizophrenia and the Recovery Model, 22 CURR. OPINION PSYCHIATRY
374 (2009).
255. AAPL Assessment Guideline, supra note 237, at S21.
256. James Podgers, The Psychiatrist’s Role in Death Sentence Debated, 66 A.B.A. J. 1509 (1980) (quoting David Goldberger).
257. Paul H. Robinson & Robert Kurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829, 1842–46 (2006–07).
258. Richard Bonnie, Psychiatry and the Death Penalty: Emerging Problems in Virginia, 66 VA. L. REV. 1676, 185 (1979).
259. For instance, one study found that sentence outcomes were affected by whether a defense attorney had access to a report from a mental
health professional supporting an insanity defense (with approximately two-thirds of the defendants with such reports allowed to plead to lesser
charges, as compared to only one-fourth of similarly charged defendants without such reports). Norman G. Poythress, Whether to Plead Insane:
A Study in Attorney–Client Decision Making (paper presented at the Biennial Conference of the American Psychology–Law Society, Mar.
1994).
260. Bonnie has noted that this is particularly relevant in capital cases: “The substantive inquiry in a capital sentencing proceeding . . . is not
restricted to behavioral impairments arising out of mental disease or defect. The door in this sense is open to the full spectrum of explanations
that may be offered. . . . ” Bonnie, supra note 258, at 184–85. This leaves the clinician free to explore unconventional syndromes (i.e., ones not
included in the Diagnostic and Statistical Manual of Mental Disorders [DSM]) or levels of emotional or psychological impairment that fall short
of diagnostic significance.
261. For a recent discussion of the impact that neuroimaging and psychological test data may have in this regard, see Deborah W. Denno,
The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases, 56 B.C. L. REV. 493 (2015).
262. For a discussion of the neural circuitry underlying this process as well as experimental examples, see Makiko Yamada et al., Neural
Circuits in the Brain That Are Activated When Mitigating Criminal Sentences, 3 NATURE COMM. 759 (2012).
263. For insights into how these considerations and courtroom social factors affect judges’ decisions, see Ursula Castellano, Courting
Compliance: Case Managers as “Double Agents” in the Mental Health Court, 36 LAW & SOC. INQUIRY 484 (2011).
264. William Austin, The Concept of Desert and Its Influence on Simulated Decision Makers’ Sentencing Decisions, 3 LAW & HUM.
BEHAV. 163 (1979).
265. See, e.g., United States v. Gardellini, 545 F.3d 1089, 1091 (D.C. Cir. 2008) (affirming downward departure to litigation-related
depression); City of Auburn v. Hedlund, 201 P.3d 315, 319–20 (Wash. 2009) (injuries already suffered dwarfed any legal penalties that might
be imposed).
266. Paul H. Robinson et al., Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good Deeds, Apology, Remorse, and Other
Such Discretionary Factors in Assessing Criminal Punishment, 65 VAND. L. REV. 737 (2012).
267. Id. at 815–25.
268. On this topic in general, see Neil Krishan Aggarwal, Adapting the Cultural Formulation for Clinical Assessments in Forensic Psychiatry,
40 J. AM. ACAD. PSYCHIATRY & L. 113 (2012).
269. WEN-SHING TSENG ET AL., CULTURAL COMPETENCE IN FORENSIC MENTAL HEALTH: A GUIDE FOR
PSYCHIATRISTS, PSYCHOLOGISTS, AND ATTORNEYS 4 (2004)
270. AAPL Assessment Guideline, supra note 237, at S39–S41.
271. Ezra E. Griffith, Personal Narrative and an African-American Perspective on Medical Ethics, 33 J. AM. ACAD. PSYCHIATRY & L.
371, 372 (2005); Laurence J. Kirmayer et al., The Place of Culture in Forensic Psychiatry, 35 J. AM. ACAD. PSYCHIATRY & L. 98 (2007);

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James K. Boehnlein et al., Cultural Considerations in the Criminal Law: The Sentencing Process, 33 J. AM. ACAD. PSYCHIATRY & L. 335
(2005).
272. TSENG ET AL., supra note 269, at 128; Boehnlein et al., supra note 271, at 338–40 (providing a detailed case example). For an
overview of legal claims based on culture, see Sam Beyea, Cultural Pluralism in Criminal Defense: An Inner Conflict of the Liberal Paradigm, 12
CARDOZO PUB. L. POL’Y & ETHICS J. 705 (2013).
273. Seema Garg et al., Transcultural Considerations, in HANDBOOK OF FORENSIC ASSESSMENT: PSYCHOLOGICAL AND
PSYCHIATRIC PERSPECTIVES 679, 693–94 (Eric Y. Drogin et al. eds., 2011).
274. David R. Williams et al., Prevalence and Distribution of Major Depressive Disorder in African Americans, Caribbean Blacks, and Non-
Hispanic Whites Results from the National Survey of American Life, 64 ARCHIVES GEN. PSYCHIATRY 305 (2007); Joshua Breslau et al.,
Lifetime Risk and Persistence of Psychiatric Disorders across Ethnic Groups in the United States, 35 PSYCHOL. MED. 317 (2005).
275. Jeanne Miranda et al., Mental Health in the Context of Health Disparities, 165 AM. J. PSYCHIATRY 1102, 1103–04 (2008).
276. An extended discussion, with examples, appears in TSENG ET AL., supra note 269, at 52–72.
277. ALAN F. FRIEDMAN ET AL., PSYCHOLOGICAL ASSESSMENT WITH THE MMPI-2, 196, 202 (2012).
278. See, e.g., Mark E. Olver, The Structural and Predictive Properties of the Psychopathy Checklist—Revised in Canadian Aboriginal and
Non-Aboriginal Offenders, 25 PSYCHOL. ASSESSMENT 167 (2013) (valid in both groups); Lorraine T. Benuto et al., Assessing Risk,
Recidivism, and Dangerousness in Asians, in GUIDE TO PSYCHOLOGICAL ASSESSMENT WITH ASIANS 443 (Lorraine T. Benuto et
al. eds., 2014); Michael J. Wilson et al., Psychopathy in Bulgaria: The Cross-Cultural Generalizability of the Hare Psychopathy Checklist, 36 J.
PSYCHOPATHOLOGY & BEHAV. ASSESSMENT 389 (2014) (correlations with external variables support the Bulgarian translation’s
convergent and discriminant validity). The citation for the PCL-R itself is ROBERT D. HARE & HANS VERTOMMEN, THE HARE
PSYCHOPATHY CHECKLIST—REVISED (1991).
279. Elizabeth A. Sullivan & David S. Kosson, Ethnic and Cultural Variations in Psychopathy, in HANDBOOK OF PSYCHOPATHY
437 (Christopher J. Patrick ed., 2006).
280. Kirmayer et al., supra note 271, at 100–01.
281. See, e.g., MONT. CODE ANN. § 46-18-304(c) (2015); PA. CONS. STAT. § 42-9711(e)(5) (2016); MISS. CODE ANN. § 99-19-
101(6)(e) (2013). For a complete listing, see DAVID DEMATTEO ET AL., FORENSIC MENTAL HEALTH ASSESSMENTS IN
DEATH PENALTY CASES 102–20 (2011).
282. See supra note 189.
283. Risk assessments are needed in diverse situations, including civil commitment [Chapter 10], confinement of persons adjudicated not
guilty by reason of insanity [§ 10.10(c)], bail determinations [§ 2.04(a)(1)], parental fitness determinations in child custody [Chapter 16], and
evaluations regarding allegations of parental abuse and neglect [Chapter 15]. Risk considerations come up indirectly in other evaluation
contexts: in competence-to-proceed assessments, for instance, evaluators often must say whether the person meets civil commitment criteria
under a “dangerous to others” standard to guide the court’s decision about placement [see § 6.09(c)].
284. The classic references are John Monahan & Saleem A. Shah, Dangerousness and Commitment of the Mentally Disordered in the United
States, 15 SCHIZOPHRENIA BULL. 541 (1989), and Saleem A. Shah, Dangerousness: Some Definitional, Conceptual, and Public Policy
Issues, in 1 PERSPECTIVES IN LAW AND PSYCHOLOGY: THE CRIMINAL JUSTICE SYSTEM 91 (Bruce D. Sales ed., 1977).
285. TEX. CODE CRIM. PRO. ANN. § 37.071, § 2(b)(2).
286. Id., at § 841.003.
287. Id. at § 574.034.
288. For example, two well-researched actuarial instruments, the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk
Appraisal Guide (SORAG), focus entirely on individual features, including psychopathy, school maladjustment, a diagnosis of personality
disorder or schizophrenia, age, upbringing and marital status, and offense history. The chief text on these instruments is GRANT T. HARRIS
ET AL., VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK (3d ed. 2015). Readers can see elements of the VRAG and
SORAG on many websites, including https://www.tn.gov/assets/entities/behavioral-health/p-r-f/attachments/VRAG_SORAG.pdf.
289. The classic text is DANIEL KAHNEMAN ET AL., JUDGMENT UNDER UNCERTAINTY (1982). A more recent, entertaining,
yet highly informative description is DANIEL KAHNEMAN, THINKING, FAST AND SLOW (2011). A superb description of cognitive
heuristics and biases as they arise in forensic mental health appears in Tess M.S. Neal & Thomas Grisso, The Cognitive Underpinnings of Bias in
Forensic Mental Health Evaluations, 20 PSYCHOL. PUB. POL’Y & L. 200 (2014).
290. Joseph Cocozza & Henry J. Steadman, Prediction in Psychiatry: An Example of Misplaced Confidence in Experts, 25 SOC. PROBS. 266
(1978); Henry J. Steadman, Some Evidence on the Inadequacy of the Concept and Determination of Dangerousness in Law and Psychiatry, 1 J.
PSYCHIATRY & L. 409 (1979); Henry J. Steadman & Joseph Cocozza, Psychiatry, Dangerousness, and the Repetitively Violent Offender, 69 J.
CRIM. L. & CRIMINOLOGY 226 (1978).
291. Steadman, supra note 290, at 419, described more than 18 criteria of dangerousness cited in court psychiatric reports.

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 292. Id. at 421.
293. Stephen H. Dinwiddie & Sean Yutzy, Dangerous Delusions?: Misidentification Syndromes and Professional Negligence, 21 BULL. AM.
ACAD. PSYCHIATRY & L. 513 (1993).
294. See, e.g., Eric B. Elbogen & Sally C. Johnson, The Intricate Link between Violence and Mental Disorder: Results from the National
Epidemiologic Survey on Alcohol and Related Conditions, 66 ARCHIVES GEN. PSYCHIATRY 152 (2009) (incidence of violence was higher
for people with severe mental illness, but only because of the presence of other risk factors for violence, such as substance abuse, environmental
stressors, and past violence).
295. For an introduction relevant to risk assessment that covers both scientific findings and the constitutional issues at stake, see John
Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm among Prisoners, Predators, and Patients, 92 VA. L. REV. 391(2006). For a
recent discussion of factors affecting violent recidivism, see Alex R. Piquero et al., A Systematic Review of Age, Sex, Ethnicity, and Race as
Predictors of Violent Recidivism, 59 INT’L J. OFFENDER THERAPY & CRIMINOLOGY 5 (2015).
296. Scott M. Reichlin & Joseph D. Bloom, Effects of Publicity on a Forensic Hospital, 21 BULL. AM. ACAD. PSYCHIATRY & L. 475
(1993).
297. This has been observed in studies from a variety of legal contexts. See Cocozza & Steadman, supra note 290 (reporting 86.7%
concordance rate between psychiatrists’ predictions of dangerousness and judges’ decisions to commit individuals determined incompetent for
trial); Norman G. Poythress, Mental Health Expert Testimony: Current Problems, 5 J. PSYCHIATRY & L. 201 (1977) (see in particular Table
2, showing several studies of high concordance rates between psychiatrists’ predictions of dangerousness and judges’ decisions to civilly commit).
298. The most widely quoted of these impressions comes from JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT
BEHAVIOR 47, 49 (1981) [hereinafter MONAHAN, CLINICAL PREDICTION] (“The ‘best’ clinical research currently in existence
indicates that psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period
among institutionalized populations that had both committed violence in the past (and thus had high base rates for it) and who were diagnosed as
mentally ill”) (emphasis in original). Among recent publications that quote John Monahan’s statement are BERNADETTE MCSHERRY,
MANAGING FEAR: THE LAW AND ETHICS OF PREVENTIVE DETENTION AND RISK ASSESSMENT 36 (2013), and
Michelle R. Guyton & Rebecca L. Jackson, Violence Risk Assessment, in LEARNING FORENSIC ASSESSMENT: RESEARCH AND
PRACTICE 132 (Rebecca Jackson & Ronald Roesch eds., 2015). We suggest a more nuanced analysis of Monahan’s judgment in the
following pages.
299. For a comprehensive review of performance indicators that are employed by investigators in this area, see Jay P. Singh, Predictive
Validity Performance Indicators in Violence Risk Assessment: A Methodological Primer, 31 BEHAV. SCI. & L. 8 (2013).
300. For an intuitive discussion using medical examples, see Tze-Wey Loong, Understanding Sensitivity and Specificity with the Right Side of
the Brain, 327 BRIT. MED. J. 716 (2003).
301. The first publications to do so were Douglas Mossman, Assessing Predictions of Violence: Being Accurate about Accuracy, 62 J.
CONSULTING & CLINICAL PSYCHOL. 783 (1994) (hereinafter Being Accurate about Accuracy) and Douglas Mossman, Further
Comments on Portraying the Accuracy of Violence Predictions, 18 LAW & HUM. BEHAV. 587 (1994).
302. In the case of tied ratings, half are deemed correct rankings and half incorrect (as though they were decided by a coin flip). In Figure
9.2, for example, the probability that both a violent and a nonviolent individual would both receive a score of 5 is .0055, and half this value
(represented by the triangular portion of the subarea labeled 5) is credited to the AUC.
303. Bernard Rubin, Prediction of Dangerousness in Mentally Ill Criminals, 27 ARCHIVES GEN. PSYCHIATRY 397, 397–98 (1972)
(“Even in the most careful, painstaking, laborious and lengthy clinical approach to the prediction of dangerousness, false positives may be at a
minimum of 60% to 70%”); MONAHAN, CLINICAL PREDICTION, supra note 298, at 47, 49.
304. 451 U.S. 454 (1981).
305. George Dix, The Death Penalty, “Dangerousness,” Psychiatric Testimony, and Professional Ethics, 5 AM. J. CRIM. L. 151, 158 (1977).
306. Id.
307. Id. at 172. Over the course of his career, Dr. Grigson testified in 167 capital cases. Texas ‘Dr. Death’ Retires after 167 Capital Case
Trials, WASH. TIMES, December 20, 2003, available at http://www.washingtontimes.com/news/2003/dec/20/20031220-113219-5189r/. In
1995, the American Psychiatric Association and the Texas Society of Psychiatric Physicians expelled Grigson from their professional
organizations. Laura Bell, Groups Expel Psychiatrist Known for Murder Cases, DALLAS MORNING NEWS, July 26, 1995, at 21A.
308. Mossman, Being Accurate about Accuracy, supra note 301, at 789 (average AUCs of .67–.71); Douglas Mossman, Commentary,
Assessing the Risk of Violence: Are “Accurate” Predictions Useful?, 28 J. AM. ACAD. PSYCHIATRY & L. 272, 276 (2000) (average AUCs of
.67–.72).
309. Henry J. Steadman et al., Designing a New Generation of Risk Assessment Research, in VIOLENCE AND MENTAL DISORDER:
DEVELOPMENTS IN RISK ASSESSMENT 310 (John Monahan & Henry J. Steadman eds., 1994) [hereinafter VIOLENCE AND
MENTAL DISORDER] (violence rate of 33.6%).
310. Id. at 307.

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 311. Charles W. Lidz et al., The Accuracy of Predictions of Violence to Others, 269 JAMA 1007, 1009 (1993).
312. Steadman et al., supra note 309, at 310.
313. John Monahan, The Prediction of Violent Behavior: Toward a Second Generation of Theory and Policy, 141 AM. J. PSYCHIATRY 10
(1984).
314. See Lidz et al., supra note 311.
315. JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR STUDY OF MENTAL
DISORDER AND VIOLENCE (2001).
316. Randy Otto, Assessing and Managing Violence Risk in Outpatient Settings, 56 J. CLINICAL PSYCHOL. 1239 (2000).
317. Tonia L. Nicholls et al., Comparing Preferences for Actuarial versus Structured Professional Judgment Violence Risk Assessment Measures
across Five Continents, in INTERNATIONAL PERSPECTIVES ON VIOLENCE RISK ASSESSMENT 127, 146 (Jay P. Singh et al. eds.,
2016) (summarizing survey data showing that a fourth to a half of all violence risk assessments are unstructured).
318. The quoted phrase comes from Robyn M. Dawes et al., Clinical versus Actuarial Judgment, 243 SCIENCE 1668 (1989), a classic and
still-important article for understanding the issues covered in this section.
319. Kevin S. Douglas & Kim A. Reeves, Historical–Clinical–Risk Management–20 (HCR-20) Violence Risk Assessment Scheme: Rationale,
Application, and Empirical Overview, in HANDBOOK OF VIOLENCE RISK ASSESSMENT 147, 152 (Randy K. Otto & Kevin S.
Douglas eds., 2010).
320. Kirk Heilbrun et al., Violence Risk Assessment Tools: Overview and Critical Analysis, in HANDBOOK OF VIOLENCE RISK
ASSESSMENT 1, 5 (Randy K. Otto & Kevin S. Douglas eds., 2010) (citing studies); Stefanía Ægisdóttir et al., The Meta-Analysis of Clinical
Judgment Project: Fifty-Six Years of Accumulated Research on Clinical Versus Statistical Prediction, 34 COUNSELING PSYCHOLOGIST
341 (2006). The classic writings on this topic are PAUL MEEHL, CLINICAL VERSUS STATISTICAL PREDICTION (1954), and
William M. Grove & Paul Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic)
Prediction Procedures: The Clinical–Statistical Controversy, 2 PSYCHOL. PUB. POL’Y & L. 293 (1996).
321. For example, the well-validated violence risk instruments discussed later have not received extensive testing in senior citizens or women
suffering from postpartum psychosis. Available sex offender risk assessments are validated only for men; at this writing, no such instrument is
available for women, although research in this area is expanding. See Franca Cortoni & Theresa A. Gannon, Female Sexual Offenders: An
Overview, in SEXUAL OFFENDING 213, 221 (Amy Phenix & Harry M. Hoberman eds., 2016).
322. Heilbrun et al., supra note 320, at 6.
323. Ames Robey, Criteria for Competency to Stand Trial: A Checklist for Psychiatrists, 122 AM. J. PSYCHIATRY 616 (1965).
324. John Monahan & Jennifer L. Skeem, The Evolution of Violence Risk Assessment, in VIOLENCE IN PSYCHIATRY 17, 19 (Katherine
D. Warburton & Stephen M. Stahl eds., 2016).
325. Dawes et al., supra note 318, at 1668.
326. “In psychology,” Gawande observes, “there’s something called the broken-leg problem. A statistical formula may be highly successful in
predicting whether or not a person will go to a movie in the next week. But someone who knows that this person is laid up with a broken leg
will beat the formula. No formula can take into account the infinite range of such exceptional events.” ATUL GAWANDE,
COMPLICATIONS: A SURGEON’S NOTES ON AN IMPERFECT SCIENCE 42 (2007).
327. Daniel Krauss & David Lee, Deliberating on Dangerousness and Death: Jurors’ Ability to Differentiate Between Expert Actuarial and
Clinical Predictions of Dangerousness 26 INT’L J.L. & PSYCHIATRY 113 (2003); Daniel Krauss & Bruce Sales, The Effects of Clinical and
Scientific Expert Testimony on Juror Decision Making in Capital Sentencing, 7 PSYCHOL. PUB. POL’Y & L. 267 (1998).
328. MICHAEL A. BISHOP & J.D. TROUT, EPISTEMOLOGY AND THE PSYCHOLOGY OF HUMAN JUDGMENT 47, 51–
52 (2005).
329. VERNON L. QUINSEY ET AL., VIOLENT OFFENDERS: APPRAISING AND MANAGING RISK xx (2d ed. 2006).
330. AMY PHENIX ET AL., STATIC-99R CODING RULES REVISED—2016 7 (2016).
331. Id.
332. Jay P. Singh et al., The International Risk Survey Use and Perceived Utility of Structured Violence Risk Assessment Tools in 44 Countries,
in INTERNATIONAL PERSPECTIVES ON VIOLENCE RISK ASSESSMENT 101, 116–17 (Jay P. Singh et al. eds., 2016); Nicholls et
al., supra note 317, at 140–42.
333. Laura S. Guy et al., Risk Assessment and Communication, in 1 APA HANDBOOK OF FORENSIC PSYCHOLOGY 35, 54 (Brian
L. Cutler & Patricia A. Zapf eds., 2015).
334. James Bonta et al., The Prediction of Criminal and Violent Recidivism among Mentally Disordered Offenders: A Meta-Analysis, 123
PSYCHOL. BULL. 123 (1998); D.A. ANDREWS & JAMES BONTA, THE PSYCHOLOGY OF CRIMINAL CONDUCT (6th ed.
2016).
335. ANDREWS & BONTA, supra note 334.

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 336. Mark E. Olver et al., Thirty Years of Research on the Level of Service Scales: A Meta-Analytic Examination of Predictive Accuracy and
Sources of Variability, 26 PSYCHOL. ASSESSMENT 156 (2014).
337. Id. at 162 (Table 3).
338. D.A. Andrews & James Bonta, Rehabilitating Criminal Justice Policy and Practice, 16 PSYCHOL. PUB. POL’Y & L. 39, 44–45
(2010).
339. Christina Campbell et al., Screening Offenders: The Exploration of a Youth Level of Service/Case Management Inventory (YLS/CMI) Brief
Screener, 53 J. OFFENDER REHABILITATION 19, 22 (2014) (citing studies from 1999 to 2012). See also Jodi L. Viljoen et al., Does
Reassessment of Risk Improve Predictions?: A Framework and Examination of the SAVRY and YLS/CMI, PSYCHOL. ASSESSMENT (Nov. 7,
2016), available at https://www.readbyqxmd.com/read/27819436/does-reassessment-of-risk-improve-predictions-a-framework-and-
examination-of-the-savry-and-yls-cmi (AUCs of .71–.73 for any reoffending in follow-up periods of 3–24 months).
340. Laura S. Guy & Catherine M. Wilson, Empirical Support for the HCR-20: A Critical Analysis of the Violence Literature (2007), available
at http://escholarship.umassmed.edu/psych_cmhsr/334.
341. KEVIN S. DOUGLAS ET AL., ASSESSING RISK FOR VIOLENCE—USER GUIDE (2013).
342. KEVIN S. DOUGLAS ET AL., HCR-20 VIOLENCE RISK ASSESSMENT SCHEME: OVERVIEW AND ANNOTATED
BIBLIOGRAPHY (CURRENT UP TO JANUARY 1, 2014), available at http://hcr-20.com/hcr/wp-content/uploads/2013/03/HCR-20-
Annotated-Bibliography-Version-12-January-2014.pdf.
343. Kevin S. Douglas, Version 3 of the Historical–Clinical–Risk Management-20 (HCR-20V3): Relevance to Violence Risk Assessment and
Management in Forensic Conditional Release Contexts, 32 BEHAV. SCI. & L. 557, 571–73 (2014).
344. Jay P. Singh et al., A Comparative Study of Violence Risk Assessment Tools: A Systematic Review and Metaregression Analysis of 68
Studies Involving 25,980 Participants, 31 CLINICAL PSYCHOL. REV. 499, 506 (Table 3) (2011). This study also supports the overall
conclusion that actuarial and SPJ approaches have comparable accuracy, id. at 509 (Table 9).
345. RANDY BORUM ET AL., MANUAL FOR THE STRUCTURED ASSESSMENT OF VIOLENCE RISK IN YOUTH (2006).
346. Singh et al., supra note 344, at 506 (Table 3). In addition, a more recent study showed that the predictive accuracy of the SAVRY
sustained its predictive accuracy over two years. Viljoen et al., supra note 339, at 7 (AUCs of .70–.72 for any reoffending in follow-up periods of
three to 24 months).
347. HARRIS ET AL., supra note 288. The VRAG has been revised, but the revision does not affect the commentary in the text. See
Marnie E. Rice et al., Validation of and Revision to the VRAG and SORAG: The Violence Risk Appraisal Guide—Revised (VRAG-R), 25
PSYCHOL. ASSESSMENT 951 (2013).
348. Seena Fazel et al., Use of Risk Assessment Instruments to Predict Violence and Antisocial Behaviour in 73 Samples Involving 24,827
People: Systematic Review and Meta-Analysis, 345 BRIT. MED. J. e4692 (2012).
349. Singh et al., supra note 344, at 506 (Table 3).
350. Astrid Rossegger et al., Replicating the Violence Risk Appraisal Guide: A Total Forensic Cohort Study, 9 PLOS ONE e91845 2, 3, 6
(2014) (citing previous studies and reporting poor calibration between VRAG bins and observed rates of recidivism).
351. JOHN MONAHAN ET AL., CLASSIFICATION OF VIOLENCE RISK PROFESSIONAL MANUAL (2002).
352. John Monahan et al., Developing a Clinically Useful Actuarial Tool for Assessment Violence Risk, 176 BRIT. J. PSYCHIATRY 312, 316
(2000).
353. John Monahan et al., The Classification of Violence Risk, 24 BEHAV. SCI. & L. 721 (2006).
354. Id. at 728.
355. Id. at 727.
356. John Monahan et al., An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorders, 56 PSYCHIATRIC SERV.
810, 814 (2005) (AUC = .63, improving to AUC = .70 when “a more inclusive definition of violence” was used).
357. Robert J. Snowden et al., Assessing Risk of Future Violence among Forensic Psychiatric Inpatients with the Classification of Violence Risk
(COVR), 60 PSYCHIATRIC SERV. 1522, 1524 (2009) (AUC = .73 for physical aggression).
358. Michael Doyle et al., Investigating the Validity of the Classification of Violence Risk in a UK Sample, 9 INT’L J. FORENSIC MENTAL
HEALTH 316 (2010).
359. Joakim Sturup et al., Violent Behavior and Gender of Swedish Psychiatric Patients: A Prospective Clinical Study, 64 PSYCHIATRIC
SERV. 688, 691 (2013) (AUC = .78 for women, .76 for men).
360. Leslie-Maaike Helmus & David Thornton, Stability and Predictive and Incremental Accuracy of the Individual Items of Static-99R and
Static-2002R in Predicting Sexual Recidivism: A Meta-Analysis, 42 CRIM. JUST. & BEHAV. 917 (2015).
361. R. Karl Hanson et al., What Sexual Recidivism Rates Are Associated with Static-99R and Static-2002R Scores?, 28 SEXUAL ABUSE
218, 219 (2016).
362. See http://www.static99.org.

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 363. PHENIX ET AL., supra note 330, at 7.
364. Leslie Helmus et al., Absolute Recidivism Rates Predicted by Static-99R and Static-2002R Sex Offender Risk Assessment Tools Vary across
Samples: A Meta-Analysis, 39 CRIM. JUST. & BEHAV. 1148 (2012).
365. Hanson et al., supra note 361, at 234.
366. Id. at 242.
367. DOUGLAS P. BOER ET AL., MANUAL FOR THE SEXUAL VIOLENCE RISK–20: PROFESSIONAL GUIDELINES FOR
ASSESSING RISK OF SEXUAL VIOLENCE (1997).
368. R. Karl Hanson & Kelly E. Morton-Bourgon, The Accuracy of Recidivism Risk Assessments for Sexual Offenders: A Meta-Analysis of 118
Prediction Studies, 21 PSYCHOL. ASSESSMENT 1 (2009).
369. Martin Rettenberger et al., The Reliability and Validity of the Sexual Violence Risk–20 (SVR-20): An International Review, 4 SEXUAL
OFFENDER TREATMENT 1, 5–6 (2009 issue 2) (summarizing studies).
370. Hanson & Morton-Bourgon, supra note 368, at 7 (Table 2, showing effect sizes of 0.21, 1.23, and 1.35).
371. Singh et al., supra note 344, at 506 (Table 3).
372. This list of factors reflects a sampling of chapter topics covered in VIOLENCE IN PSYCHIATRY (Katherine D. Warburton &
Stephen M. Stahl eds., 2016).
373. Zheng Chang et al., Association between Prescription of Major Psychotropic Medications and Violent Reoffending after Prison Release,
316 JAMA 1798 (2016).
374. Jeffrey Swanson, Mental Illness, Release from Prison, and Social Context, 316 JAMA 1771 (2016).
375. HARVEY CLECKLEY, THE MASK OF SANITY (5th ed. 1976).
376. ROBERT HARE, WITHOUT CONSCIENCE: THE DISTURBING WORLD OF THE PSYCHOPATHS AMONG US
(1993).
377. David J. Cooke et al., Understanding the Structure of the Psychopathy Checklist—Revised: An Exploration of Methodological Confusion,
190 BRIT. J. PSYCHIATRY s39 (2007 supp. 49).
378. See JOHN MONAHAN, PREDICTING VIOLENT BEHAVIOR: AN ASSESSMENT OF CLINICAL TECHNIQUES 80
(1981). None of the current risk assessment instruments relies on traditional tests.
379. James R.P. Ogloff et al., Treating Criminal Psychopaths in a Therapeutic Community Program, 8 BEHAV. SCI. & L. 181 (1990).
380. Only about one-third of men who meet criteria for antisocial personality disorder will also score in the clinical range on the PCL-R.
DONALD W. BLACK, BAD BOYS, BAD MEN: CONFRONTING ANTISOCIAL PERSONALITY DISORDER (SOCIOPATHY)
33–34 (2013). Elements of the PCL-R (often labeled Factor 1) relate to character traits that fit with Cleckley’s classic definition of psychopathy
rather than the DSM diagnosis. Thus a diagnosis of antisocial personality disorder is an incomplete proxy for PCL-R assessment, and this
diagnosis, although associated with violence, does not predict as well as PCL-R scores do.
381. Suh-Ruu Ou & Arthur J. Reynolds, Childhood Predictors of Young Adult Male Crime, 32 CHILD & YOUTH SERV. REV. 1097,
1098 (2010) (summarizing and citing studies); L. Rowell Huesmann et al., Childhood Predictors of Adult Criminality: Are All Risk Factors
Reflected in Childhood Aggressiveness?, 12 CRIM. BEHAV. & MENTAL HEALTH 185 (2002) (aggressiveness at age 8 years was the best
predictor of adult criminality).
382. See Table 9.4, n.m.
383. Kate O’Brien et al., Youth Gang Affiliation, Violence, and Criminal Activities: A Review of Motivational, Risk, and Protective Factors, 18
AGGRESSION & VIOLENT BEHAV. 417, 419–20 (2013) (summarizing findings from several studies).
384. Id. at 421 (Table 1).
385. Id. at 423.
386. Sue Estroff & Catherine Zimmer, Social Networks, Social Support, and Violence among Persons with Severe, Persistent Mental Illness, in
VIOLENCE AND MENTAL DISORDER, supra note 309, at 259; Sue Estroff et al., The Influence of Social Networks and Social Support on
Violence by Persons with Serious Mental Illness, 45 HOSP. & COMM. PSYCHIATRY 669 (1994); Jeffrey Swanson et al., The Social-
Environmental Context of Violent Behavior in Persons Treated for Severe Mental Illness, 92 AM. J. PUB. HEALTH 1523 (2002).
387. Yvonne H.A. Bouman et al., Social Ties and Short-Term Self-Reported Delinquent Behaviour of Personality Disordered Forensic
Outpatients, 15 LEGAL & CRIM. PSYCHOL. 357, 358–59 (2010).
388. John Monahan, Mental Disorder and Violent Behavior: Perceptions and Evidence, 47 AM. PSYCHOLOGIST 511 (1992); Jeffrey W.
Swanson et al., Psychotic Symptoms and Disorders and the Risk of Violent Behavior in the Community, 6 CRIM. BEHAV. & MENTAL
HEALTH 309 (1996).
389. Seena Fazel et al., Schizophrenia, Substance Abuse, and Violent Crime, 301 JAMA 2016, 2020 (2009); Seena Fazel et al., Bipolar
Disorder in Violent Crime: New Evidence from Population-Based Longitudinal Studies and Systematic Review, 67 ARCHIVES GEN.
PSYCHIATRY 931 (2010) (risk attenuated by considering co-occurring substance abuse and using full siblings as controls).

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 390. Elbogen & Johnson, supra note 294, at 158; Jeremy W. Coid et al., Paranoid Ideation and Violence: Meta-Analysis of Individual Subject
Data of 7 Population Surveys, 42 SCHIZOPHRENIA BULL. 907, 912 (2016).
391. Id.; Swanson et al., supra note 388.
392. For a succinct yet comprehensive review, see Charles L. Scott & Phillip J. Resnick, Clinical Assessment of Psychotic and Mood Disorder
Symptoms for Risk of Future Violence, in VIOLENCE IN PSYCHIATRY 32 (Katherine D. Warburton & Stephen M. Stahl eds., 2016).
393. We note here that such instruments have been developed for a wide variety of evaluation contexts, so finding an applicable instrument
should be much easier than was the case 10–15 years ago.
394. Edward P. Mulvey & Charles W. Lidz, Conditional Prediction: A Model for Research on Dangerousness to Others in a New Era, 18
INT’L J.L. & PSYCHIATRY 129 (1995).

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Chapter 10

1. See Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (“The possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the
community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s will”).
2. Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972) (quoting WILLIAM BLACKSTONE, COMMENTARIES 47).
3. The notion that criminal offenses must be explicitly defined is a principle of constitutional dimension going back generations in United
States law. See generally Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939); HERBERT PACKER, THE LIMITS OF THE CRIMINAL
SANCTIONS 88–91 (1968).
4. Addington v. Texas, 441 U.S. 418, 428 (1978).
5. Id.
6. Even most indeterminate sentencing schemes have an outer limit on imprisonment. See § 9.03(a).
7. RICHARD J. BONNIE, PSYCHIATRISTS AND THE LEGAL PROCESS: DIAGNOSIS AND DEBATE 24–26 (1977).
8. ALAN STONE, MENTAL HEALTH AND THE LAW: A SYSTEM IN TRANSITION 45 (1975).
9. THOMAS SZASZ, LAW, LIBERTY, AND PSYCHIATRY 240 (1963).
10. Stephen Morse, A Preference for Liberty: The Case against Involuntary Commitment of the Mentally Disordered, 70 CAL. L. REV. 54
(1982). Decades later, these fundamental debates about the appropriateness of civil commitment continue. Sara Gordon, The Danger Zone: How
the Dangerousness Standard in Civil Commitment Proceedings Harms People with Serious Mental Illness, 66 CASE W. RES. L. REV. 657
(2016); Megan Testa & Sara G. West, Civil Commitment in the United States, 7 PSYCHIATRY 30 (2010).
11. The first of the lawsuits, and the most important in terms of influence, was Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). It
is discussed in more detail throughout this chapter.
12. The seminal right-to-treatment case is Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff’d sub nom. Wyatt v. Aderholdt, 503
F.2d 1305 (5th Cir. 1974). These cases had enormous influence on subsequent litigation in this area. See Michael L. Perlin, “Abandoned Love”:
The Impact of Wyatt v. Stickney on the Intersection of International Human Rights and Domestic Mental Disability Law, 35 PSYCHOL. PUB.
POL’Y & L. 121, 121 (2009) (“Wyatt v. Stickney . . . spawned copycat litigation in multiple federal district courts and state superior courts; it
led directly to the creation of Patients’ Bills of Rights in most states; and it inspired the creation of the Developmental Disabilities Assistance
and Bill of Rights Act, the Mental Health Systems Act Bill of Rights, and the federally-funded Protection and Advocacy System”).
13. See, e.g., Washington v. Harper, 494 U.S. 210 (1990); Project Release v. Cuomo, 722 F.2d 960 (2d Cir. 1983); Rogers v. Comm’r Dep’t
of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983).
14. SAMUEL J. BRAKEL & RONALD S. ROCK, THE MENTALLY DISABLED AND THE LAW 1 (1971).
15. Id. at 1–2.
16. Id. at 2.
17. Id.
18. Id.
19. Id. For further discussion of the development of English law, see Alan Dershowitz, The Origins of Preventive Confinement in Anglo-
American Law, Part I: The English Experience, 43 U. CIN. L. REV. 1 (1974).
20. BRAKEL & ROCK, supra note 14, at 6.
21. Id. at 4.
22. Id. For further discussion of the development of American law, see Alan Dershowitz, The Origin of Preventive Confinement in Anglo-
American Law, Part II: The American Experience, 43 U. CIN. L. REV. 781 (1974).
23. BRAKEL & ROCK, supra note 14, at 6.
24. Id. at 36.
25. Dershowitz, supra note 22, at 789.
26. For example, a Mrs. E.P. Packard, committed for three years solely on the word of her husband and because she expressed opinions he
did not like, campaigned for increased safeguards at the time of commitment. BRAKEL & ROCK, supra note 14, at 7–8.
27. The person primarily responsible for focusing public attention on the problems of persons with mental disorder and the dramatic increase
in the creation of institutions for the disabled was Dorothea Dix, whose efforts resulted in federal grants of land to the states for the
establishment of hospitals and the building of at least 32 hospitals in the United States and abroad. Id. at 8, also n.39 and text.
28. Id. at 60.
29. Id.
30. NANCY M. COLEMAN & LAURENCE GILBERT, STALKING THE LEAST RESTRICTIVE ALTERNATIVE:

1023
LITIGATIVE AND NON-LITIGATIVE STRATEGIES FOR THE INDIGENT MENTALLY DISABLED 12 (1979) (and citations
therein).
31. Dominic A. Sisti et al., Improving Long-Term Psychiatric Care: Bring Back the Asylum, 313 JAMA 243 (2015). These authors go on to
note, “Given the doubling of the US population, this represents a 95% decline, bringing the per capita public psychiatric bed count to about the
same as it was in 1850—14 per 100,000 people.” Id.
32. Meighan B. Haupt, The Vital Role of State Psychiatric Hospitals 13, 14 (Technical Report, Nat’l Assoc. State Mental Health Program
Directors, 2014).
33. Elizabeth Stranges et al., State Variation in Inpatient Hospitalizations for Mental Health and Substance Abuse Conditions, 2002–2008
(Agency for Healthcare Research and Quality Statistical Brief No. 117, June 2011) (“In 2008, mental health (MH) or substance abuse (SA)
disorders were the principal reason for 1.8 million inpatient community hospital stays”).
34. Songkyu Lee et al., Length of Inpatient Stay of Persons with Serious Mental Illness: Effects of Hospital and Regional Characteristics, 63
PSYCHIATRIC SERV. 889 (2012) (finding that average length of stay in mental hospitals was about 13 days).
35. For a fuller discussion of the evolution of mental health law and its impact on institutional and community mental health services, see
John Petrila & Bruce Lubotsky Levin, Mental Disability Law, Policy, and Service Delivery, in MENTAL HEALTH SERVICES: A PUBLIC
HEALTH PERSPECTIVE (Bruce Lubotsky Levin et al. eds., 2d ed. 2004). Another important development during this period was the
creation of the National Institute of Mental Health, which helped stimulate the development of a research base in mental health.
36. For an early discussion of psychotropic medications and their impact, including on deinstitutionalization, see 2 THE PRESIDENT’S
COMMISSION ON MENTAL HEALTH, TASK FORCE REPORT: NATURE AND SCOPE OF THE PROBLEM 55–56 (1978)
(and citations therein).
37. Mental Retardation Facilities and Community Mental Health Centers Construction Act, Pub. L. 88-164, 77 Stat. 282 (1963) (repealed
2000).
38. Thomas M. Wickizer et al., Controlling Inpatient Psychiatric Utilization through Managed Care, 153 AM. J. PSYCHIATRY 339 (1996)
(“data suggest that managed care does restrict inpatient psychiatric care, primarily by managing length of stay”).
39. See John Petrila, Ethics, Money, and the Problem of Coercion in Managed Behavioral Health Care, 40 ST. LOUIS U. L.J. 359, 397 (1996);
David Mechanic et al., Changing Patterns of Psychiatric Inpatient Care in the United States, 1988–1994, 55 ARCHIVES GEN. PSYCHIATRY
785 (1998). For a review of the Massachusetts experience, see Christopher Hudson, Changing Patterns of Acute Psychiatric Hospitalization
under a Public Managed Care Program, 28 J. SOCIOLOGY & SOC. WELFARE 141 (2001).
40. Developments in the Law: Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190, 1207–08 (1974). This article was an
exhaustive discussion of civil commitment law, including a description of case law, statutory law, and commentary at a time when legal
challenges to civil commitment were at their height. For a more recent review of this history (2010), see Testa & West, supra note 10.
41. Proschaska v. Brinegar, 251 Iowa 834, 102 N.W.2d 870, 872 (1960).
42. DAVID WEXLER, MENTAL HEALTH LAW: MAJOR ISSUES 23 (1981).
43. See, e.g., SZASZ, supra note 9; THOMAS SZASZ, PSYCHIATRIC JUSTICE 269 (1965).
44. One of the most influential articles in this regard was David Rosenhan, On Being Sane in Insane Places, 179 SCIENCE 150 (1973). In
this study, eight individuals feigning mental illness were admitted to a number of mental health facilities. Staff members reportedly never
detected the deception.
45. The most influential article arguing this position is probably Bruce Ennis & Thomas Litwak, Psychiatry and the Presumption of Expertise:
Flipping Coins in the Courtroom, 62 CAL. L. REV. 693 (1974).
46. Humphrey v. Cady, 405 U.S. 504, 509 (1972).
47. 406 U.S. 715 (1972) [discussed in § 6.04(a)].
48. Id. at 737.
49. Wexler observes that this invitation was “rather rudely retracted in some later cases” that were decided on narrow grounds—a tendency
Wexler attributes tentatively to the difficulty of the issues the cases raised. WEXLER, supra note 42, at 52 n.13.
50. Lessard v. Schmidt, 349 F. Supp. 1078, 1094 (E.D. Wis. 1972), quoting Joseph Livermore et al., On the Justification for Civil
Commitment, 117 U. PA. L. REV. 75, 80 (1968).
51. Commonwealth ex rel. Finken v. Roop, 339 A.2d 764, 778 (Pa. Ct. App. 1978).
52. Id.
53. 1 MENTAL HEALTH LAW PROJECT, LEGAL RIGHTS OF THE MENTALLY DISABLED 37 (1975).
54. STONE, supra note 8, at 1.
55. Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff’d sub nom. Wyatt v. Aderholdt, 503 F.2d 1305 (5th Cir. 1974).
56. For the early impact of the Wyatt litigation, see Perlin, supra note 12, at 123–26; Special Project, the Remedial Process in Institution
Reform Litigation, 78 COLUM. L. REV. 784 (1978). The Wyatt litigation lasted decades, and eventually, its impact was superseded by the

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downsizing of state psychiatric hospitals. See Samuel R. Bagenstos, The Past and Future of Deinstitutionalization Litigation, 34 CARDOZO L.
REV. 1 (2012–2013).
57. R. Dennis Scott, The Treatment Barrier, 46 BRIT. J. MED. PSYCHIATRY 45, 46 (1973).
58. See, e.g., Amerigo Farina et al., People’s Reactions to a Former Mental Health Patient Moving to Their Neighborhood, 2 J. COMMUNITY
PSYCHOL. 108 (1974).
59. Mary Durham & John Q. LaFond, The Empirical Consequences and Policy Implications of Broadening the Statutory Criteria for Civil
Commitment, 3 YALE L. & POL’Y REV. 395, 428–31 (1985).
60. State ex rel. Hawks v. Lazaro, 202 S.E.2d 109, 120 (W. Va. 1974).
61. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1973), vacated on other grounds, 414 U.S. 473 (1973), on remand, 379 F. Supp. 1376
(E.D. Wis. 1974), vacated on other grounds, 421 U.S. 957 (1975), on remand, 413 F. Supp. 1318 (E.D. Wis. 1976).
62. Id. at 1089.
63. Id.
64. In re Ballay, 182 F.2d 648, 659 (D.C. Cir. 1973).
65. State ex rel. Hawks v. Lazaro, 202 S.E.2d at 121.
66. Other patient advocates sought to limit the use of commitment by making provision of institutional care prohibitively expensive. This
strategy formed the underpinning of at least some of the lawsuits filed challenging institutional conditions. MENTAL HEALTH LAW
PROJECT, supra note 53, at 40.
67. 387 U.S. 1 (1967).
68. Id. at 11.
69. Alan Dershowitz, Psychiatry in the Legal Process: A Knife Cuts Both Ways, in THE PATH OF THE LAW FROM 1967, 71–83 (Alfred
D. Sutherland ed., 1968).
70. For a general discussion reflecting the tenor of arguments during the legal reform movement, see Note, Overt Dangerous Behavior as a
Constitutional Requirement for Civil Commitment of the Mentally Ill, 44 U. CHI. L. REV. 562 (1977). The courts subsequently split on
whether an overt act is constitutionally required as part of the proof of dangerousness. Compare Project Release v. Prevost, 722 F.2d 960 (2d
Cir. 1983), and In re Salen, 228 S.E.2d 649 (N.C. Ct. App. 1976) (overt act not required), with Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa.
1976), and Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974) (overt act required).
71. See, e.g., Dixon v. Attorney Gen., 325 F. Supp. 966 (N.D. Pa. 1971); Wessel v. Pryor, 461 F. Supp. 1144 (E.D. Ark. 1978); State ex rel.
Hawks v. Lazaro, 202 S.E.2d 109 (W. Va. 1974).
72. 422 U.S. 563 (1975).
73. Id. at 573.
74. Id. at 576.
75. For instance, the “without more” language could be construed to mean that a state may confine a nondangerous person if it provides
treatment. See, e.g., Geoffrey Linburn, Donaldson Revisited: Is Dangerousness a Constitutional Requirement for Civil Commitment?, 26 J. AM.
ACAD. PSYCHIATRY & L. 343 (1998); Jeffrey Geller & Jonathan Stanley, Settling Doubts about the Constitutionality of Outpatient
Commitment, 31 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 127, 132 (2005). But subsequent Supreme Court decisions clearly
state that clear and convincing evidence of mental illness and dangerousness is required for civil commitment. See, e.g., Jones v. United States,
463 U.S. 354, 362 (1983) (interpreting Addington v. Texas, 441 U.S. 418, 426–27 (1979), as saying that “the Due Process Clause requires the
Government in a civil-commitment proceeding to demonstrate by clear and convincing evidence that the individual is mentally ill and
dangerous”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (stating that the state may “confine a mentally ill person if it shows by ‘clear and
convincing evidence that the individual is mentally ill and dangerous’ ”). For these reasons, Pinals and Mossman suggest that “without more” in
Donaldson be read as “without more justification.” DEBRA A. PINALS & DOUGLAS MOSSMAN, EVALUATION FOR CIVIL
COMMITMENT 25 (2011).
76. 422 U.S. at 580 (Burger, C.J., concurring).
77. Donaldson v. O’Connor, 493 F.2d 507, 520 (5th Cir. 1974).
78. 422 U.S. at 582.
79. Id. at 582–83.
80. 441 U.S. 418 (1978).
81. In re Winship, 397 U.S. 358 (1970).
82. 441 U.S. at 426.
83. Id. at 428.
84. Id. at 429.
85. Id.

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 86. 442 U.S. 584 (1979).
87. Id. at 591.
88. J.R. v. Parham, 413 F. Supp. 112, 139 (1976).
89. 442 U.S. at 600.
90. Id. at 600–01.
91. Id. at 605.
92. Id. at 602. To some extent, this statement by the Court was belied by its own decisions. For instance, just three years before Parham, the
Court had held that a state could not grant parents an absolute veto over a minor child’s decision to have an abortion, Planned Parenthood v.
Danforth, 428 U.S. 52 (1976)—a right that, while important, is no more important than the child’s liberty interest.
93. 442 U.S. at 603.
94. Id. at 606–07.
95. Id. at 607.
96. Id. at 609.
97. Id.
98. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982) (narrow definition of right to treatment); Washington v. Harper, 494 U.S. 219
(1994) (narrow definition of right to refuse treatment).
99. See, e.g., Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983) (relying on medical judgment and administrative processes for
determining a patient’s capacity to consent to treatment); United States v. Charters, 863 F.2d 302 (4th Cir. 1988) (relying on a medical
decisionmaking process to determine the right to refuse).
100. See, e.g., the dissent of Justice Brennan in the Parham case, 442 U.S. at 625, in which he criticized the majority opinion for its optimism
about clinical expertise.
101. See, e.g., Gary B. Melton, Family and Mental Hospital as Myths: Civil Commitment of Minors, in CHILDREN, MENTAL HEALTH,
AND THE LAW (N. Dickon Reppucci et al. eds., 1984); Michael Perlin, An Invitation to the Dance: An Empirical Response to Chief Justice
Warren Burger’s “Time-Consuming Procedural Minuets” Theory in Parham v. J.R., 9 BULL. AM. ACAD. PSYCHIATRY & L. 149 (1981).
102. This “case study” is based on the real Joyce Brown, whose circumstances gained national attention in the 1980s. See, e.g., Joyce Brown’s
Ascent from Anonymity, N.Y. TIMES, at A1 Feb. 15, 1988.
103. John Parry, Involuntary Civil Commitment in the 90s: A Constitutional Perspective, 18 MENTAL & PHYSICAL DISABILITY L.
REP. 320, 322 (1994) (noting that “not much has changed” in terms of commitment criteria and procedures “in the past ten years,” despite the
Supreme Court’s retrenchment). As recounted later in this chapter [§ 10.03(h)], however, some expansion of commitment did occur. See Mary
Durham & G.L. Pierce, Legal Intervention in Civil Commitment: The Impact of Broadened Commitment Criteria, 414 ANNALS AM. ACAD.
POL. & SOC. SCI. 42 (1986) (noting that several states relaxed their commitment standards in the 1980s). In the 21st century, that expansion
has been particularly noticeable in connection with outpatient commitment. Elizabeth McGuan, New Standards for the Involuntary
Commitment of the Mentally Ill: Danger Redefined, 11 MARQUETTE ELDER’S ADVISOR 181 (2009).
104. See, e.g., Shawn S. Barnes & Nicolas Badre, Is the Evidence Strong Enough to Warrant Long-Term Antipsychotic Use in Compulsory
Outpatient Treatment?, 67 PSYCHIATRIC SERV. 784 (2016) (noting, “In most states, involuntary outpatient commitment laws are applied
differently in each county”).
105. TEX. REV. CIV. STAT. ANN. art. 5547-4(k) (supp. 1982–83).
106. VT. STAT. ANN. tit. 18, § 7101(14). See also N.M. STAT. ANN. § 43-1-3(o); MICH. COMP. LAWS ANN. § 330.1400(g).
107. See, e.g., OR. REV. STAT. § 426.495; Paul Stiles & John Petrila, Report to Florida Legislature on State Mental Health Statutes 1–2
(Oct. 4, 1995).
108. See, e.g., FLA. STAT. ANN. § 394.455(28).
109. See, e.g., ARIZ. REV. STAT. ANN. § 36-501(24)(c).
110. For further explication of this issue, see § 8.02(c)(1).
111. As of 2014, 21 states excluded substance use disorders from the definition of mental illness, and nine had separate statutory provisions
for civil commitment of persons with substance use disorders. Arthur R. Williams et al., Statutory Definitions of Mental Illness for Involuntary
Hospitalization as Related to Substance Use Disorders, 65 PSYCHIATRIC SERV. 634 (2014).
112. 521 U.S. 346 (1997).
113. Id. at 359 (“we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather,
we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance”).
114. The latitude Hendricks gives state legislatures in defining mental disorder could conceivably expand the scope of commitment,
particularly since neither Hendricks nor subsequent Court opinions have defined the corollary criterion of dangerousness more precisely. See
Mara Lynn Krongard, A Population at Risk: Civil Commitment of Substance Abusers after Kansas v. Hendricks, 90 CAL. L. REV. 111, 115

1026
(2002) (arguing that “[b]y failing to limit the new broader standard for mental disorder to statutes which also require a heightened requirement
for dangerousness, the Supreme Court invited the use of civil commitment for individuals who are neither mentally ill nor have a history of
victimizing behavior”).
115. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 20 (5th ed. 2013)
[hereinafter DSM-5].
116. Loren Roth, A Commitment Law for Patients, Doctors, and Lawyers, 136 AM. J. PSYCHIATRY 1121 (1979).
117. STONE, supra note 8, at 66–70.
118. On the other hand, the individual’s ability to control his or her antisocial behavior, which may be closely related to the capacity to make
treatment decisions, is relevant to police power commitment. If the person’s mental disorder makes that person unresponsive to the dictates of
the criminal law (in other words, “insane” for purposes of criminal culpability), the state should probably have authority to commit, based on a
danger-to-others rationale. See Christopher Slobogin, MINDING JUSTICE: LAWS THAT DEPRIVE PEOPLE WITH MENTAL
DISABILITY OF LIFE AND LIBERTY 129–38 (2006).
119. See KAN. STAT. ANN. § 59-2946(f) (a mentally ill person “lacks capacity to make an informed decision concerning treatment”).
120. Roth, supra note 116, at 1121.
121. 494 U.S. 113, at 135, 136 (1990).
122. As Zinermon merely held that the plaintiff/patient had a cause of action against the state of Florida, it did not definitively resolve this
issue, however.
123. Unfortunately, these provisions are often more honored in the breach than the observance. Commentators have expressed doubt that
admitting facilities make much effort to determine whether an individual has the capacity to make the admission decision; they suggest that
many “voluntary” patients are in fact either subtly coerced into accepting the label or incapable of understanding its implications. See § 10.04(c).
124. See Dora W. Klein, When Coercion Lacks Care: Competency to Make Medical Treatment Decisions and Parens Patriae Civil
Commitments. 45 U. MICH. J.L. REFORM 561 (2012) (arguing for a presumption of competence).
125. FLA. STAT. § 394.467(1)(A)2.b (1995).
126. ALA. CODE § 22-52-10.4(a).
127. HAW. REV. STAT. § 334-121; see also N.C. GEN. STAT. § 122C-271(a)(1).
128. Suzuki v. Yuen, 7617 F.2d 173, 176 (9th Cir. 1980).
129. See, e.g., HAW. REV. STAT. § 334-1.
130. PA. STAT. ANN. tit. 50, § 7301(b).
131. Indeed, this requirement removes the need for any prediction at all, other than a determination that whatever mental illness resulted in
the aggressive behavior is still present. See Douglas Mossman et al., Risky Business versus Overt Acts: What Relevance Do “Actuarial,”
Probabilistic Risk Assessments Have for Judicial Decisions on Involuntary Psychiatric Hospitalization?, 11 HOUS. J. HEALTH L. & POL’Y
365, 450 (2011) (arguing that under the language of most statutes, “[o]vert behavior establishes that a risk is present, though actual future harm
remains a less-than-certain probability” and “that the probabilistic evidence” or predictions based on risk assessment instruments “have, at most,
ancillary significance for civil commitment proceedings in jurisdictions that require behavioral proof of danger, or as it is often termed, an overt
act”).
132. People v. Sansone, 309 N.E.2d 733, 735 (1974); In re Salem, 228 S.E.2d 649 (N.C. Ct. App. 1976). More recent discussions can be
found in Grant Morris, Escaping the Asylum: When Freedom Is a Crime, 40 SAN DIEGO L. REV. 481 (2003); Alexander Scherr, Daubert &
Danger: The “Fit” of Expert Predictions in Civil Commitments, 55 HASTINGS L.J. 1 (2003); and Mossman et al., supra note 131, at 446–47.
133. Alexander Brooks, Defining the Dangerousness of the Mentally Ill: Involuntary Civil Commitment, in MENTALLY ABNORMAL
OFFENDERS (M. & A. Craft eds., 1984).
134. For an interesting discussion of whether speech properly constitutes dangerousness in the context of civil commitment, see David H.
Streckman & D. Clay Kelly, Do Verbal Statements Constitute Dangerousness?, 40 J. AM. ACAD. PSYCHIATRY & L. 283 (2012).
135. PA. STAT. ANN. tit. 50, § 7301(a).
136. 422 U.S. at 575.
137. See Anthony B. Clapper, Finding a Right in State Constitutions for Community Treatment of the Mentally Ill, 142 U. PA. L. REV. 739–
83 n.183 (1993) (citing 39 states), and Sara G. Gordon, The Danger Zone: How the Dangerousness Standard in Civil Commitment Proceedings
Harms People with Serious Mental Illness, 66 CASE W. RES. L. REV. 657 (2016) (citing 42 states). These data suggest that there was little
statutory change from 1993 to 2016.
138. NEV. REV. STAT. § 433A.115(2)(a).
139. See e.g., COLO. REV. STAT. § 27-65-102(9); CAL. WELF. & INST. CODE § 5008(h)(1)(A); CONN. GEN. STAT. § 17a-
495(b).
140. See, e.g., WASH. REV. CODE 71.05.020(17); HAW. REV. STAT. § 334-121; see also N.C. GEN. STAT. § 122C-271(a)(1). See

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generally Robert Miller, Need for Treatment Criteria for Involuntary Civil Commitment: Impact in Practice, 139 AM. J. PSYCHIATRY 1380
(1992).
141. See Clifford Stromberg & Alan Stone, A Model State Law on Civil Commitment of the Mentally Ill, 20 HARV. J. ON LEGIS. 275,
301–03 (1983).
142. In re Commitment of Dennis H., 647 N.W. 2d 851 (Wis. 2002).
143. Cf. In re K.L., 806 N.E. 2d 480 (N.Y. 2004) (which upheld a predicted deterioration standard, but contingent on it being applied only
in the outpatient context, “inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to
comply with court directives”).
144. WIS. STAT. §§ 51.20(1)2(c) & (d). This criterion has been labeled the “Fifth Standard,” and some commentators have characterized
its adoption as heralding a new era in mental health law. Steven K. Erickson et al., Beyond Overt Violence: Wisconsin’s Progressive Civil
Commitment Statute as a Marker of a New Era in Mental Health Law, 89 MARQ. L. REV. 359 (2005–06). It should be noted, however, that,
given civil liberty concerns, Wisconsin’s grave disability standard may only be relied upon with approval of the state Attorney General.
145. Lessard, 349 F. Supp. at 1093.
146. Clifford J. Levy, Here, Life Is Squalor and Chaos, N.Y. TIMES, Apr. 29, 2002, at A1 (describing failures of community adult homes for
people with mental disabilities). The absence of adequate community-based care systems has been a major problem for people in need of
services because of deinstitutionalization. In 1983, as state psychiatric hospitals were rapidly being downsized, the journal HOSPITAL &
COMMUNITY PSYCHIATRY (now PSYCHIATRIC SERVICES) devoted nearly an entire issue to this topic. See 34 HOSP. & COMM.
PSYCHIATRY (Sept. 1983). Two decades later, the President’s New Freedom Commission on Mental Health noted that services for people
with serious mental illnesses continued to be fragmented across service sectors, which contributed to a lack of adequate services in many
communities and a corresponding lack of access to care. PRESIDENT’S NEW FREEDOM COMMISSION ON MENTAL HEALTH,
ACHIEVING THE PROMISE: TRANSFORMING MENTAL HEALTH CARE IN AMERICA, FINAL REPORT (DHHS Pub. No
SMA-03-3832, 2003). Since the previous edition of the present book appeared in 2007, many states have severely cut funding for mental health
programs. Lena H. Sun, Three Years after Sandy Hook, More States Cut Mental Health Funding, WASH. POST, Dec. 8, 2015, available at
https://www.washingtonpost.com/news/to-your-health/wp/2015/12/08/three-years-after-sandy-hook-more-states-cut-mental-health-
funding/?utm_term=.374ef8f5d750.
147. For a report on conditions in Europe, see JOSE MIGUEL CALDAS DE ALMEIDA & HELEN KILLASPY, LONG-TERM
MENTAL HEALTH CARE FOR PEOPLE WITH SEVERE DISORDERS (2011), available at
http://ec.europa.eu/health/mental_health/docs/healthcare_mental_disorders_en.pdf.
148. When the Coalition for the Homeless brought suit to compel New York State to provide housing for homeless mentally ill persons,
Mayor Koch of New York City was quoted as saying, “I hope [plaintiffs have] success in [the] suit in getting the state to reinstitutionalize those
who need it . . . ” N.Y. TIMES, May 21, 1982, at A1, col. 1. Those attitudes persist in some quarters. See H. Steven Moffic, Is it Time for Re-
Institutionalization?, PSYCHIATRIC TIMES (Apr. 20, 2012), available at http://www.psychiatrictimes.com/articles/it-time-re-
institutionalization.
149. See Parry, supra note 103, Table, at 330–36 (citing 32 states).
150. DEL. CODE ANN. 16 § 5001(6).
151. For a review of state laws finding that only 18 states included “need for treatment” as a criterion, see TREATMENT ADVOCACY
CENTER, MENTAL HEALTH COMMITMENT LAWS: A SURVEY OF THE STATES 26 (2014), available at
http://www.treatmentadvocacycenter.org/storage/documents/2014-state-survey-abridged.pdf [hereinafter TREATMENT ADVOCACY
CENTER].
152. A number of courts also struck down need-for-treatment statutes on vagueness grounds. See, e.g., Commonwealth ex rel. Finken v.
Roop, 339 A.2d 764 (Pa. 1975); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W. Va. 1975). But see Paul Appelbaum, Is the Need for
Treatment Constitutionally Acceptable as a Basis for Civil Commitment?, 12 LAW MED. & HEALTH CARE 144 (1984) (arguing that more
precisely defined criteria, perhaps akin to the predicted deterioration standard, should pass constitutional muster).
153. See, e.g., Lynch v. Baxley, 386 F. Supp. 378, 391–92 (M.D. Ala. 1974) (“[t]he state may well have an obligation under the police power
to restrain the liberty of the threatening individual, even though his condition is not amenable to any currently available treatment”).
154. Kansas v. Hendricks, 521 U.S. 346, 366 (1997).
155. Cf. Donaldson, 422 U.S. at 584–85 (Burger, C.J., concurring) (states are not “powerless” to provide “care in a sheltered environment” for
those mentally ill who are “untreatable” but otherwise “will suffer real harm to themselves”).
156. Kirkland Schwitzgebel, Survey of State Civil Commitment Statutes, in CIVIL COMMITMENT AND SOCIAL POLICY: AN
EVALUATION OF THE MASSACHUSETTS MENTAL HEALTH REFORM ACT OF 1970 54 (1981).
157. See, e.g., Appelbaum, supra note 152; Stromberg & Stone, supra note 141; Browning Hoffman & Robert C. Dunn, Beyond Rouse and
Wyatt: An Administrative Law Model for Expanding and Implementing the Mental Patient’s Right to Treatment, 61 VA. L. REV. 297 (1975).

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For more recent commentaries in support of a broader need for treatment standard, see Erickson et al., supra note 144, and TREATMENT
ADVOCACY CENTER, supra note 151.
158. STONE, supra note 8, at 66–67.
159. Roth, supra note 116, at 1122.
160. Id.; STONE, supra note 8, at 67.
161. Roth, supra note 116, at 1123.
162. Id.
163. Id. at 1124–25.
164. STONE, supra note 8, at 70.
165. Id.
166. Morse, supra note 10, at 87–93.
167. See, e.g., Marvin S. Swartz et al., Endorsement of Personal Benefit of Outpatient Commitment among Persons with Mental Illness, 9
PSYCHOL. PUB. POL’Y & L. 94 (2003) (finding that a majority of individuals subjected to outpatient commitment did not endorse such
commitment at the end of treatment, but that two-thirds of those who experienced positive treatment outcomes did endorse it). For a summary
of empirical findings related to the “Thank You” theory, see PINALS & MOSSMAN, supra note 75, at 82–84.
168. The best early analysis of the least restrictive alternative criterion can be found in Browning Hoffman & Laurence Foust, Least
Restrictive Treatment of the Mentally Ill: A Doctrine in Search of Its Senses, 14 SAN DIEGO L. REV. 1100, 1112–15 (1977). At the time of
their article, the authors counted 20 states that referred explicitly to the doctrine in their commitment laws. Id. at 48, n.49. Within the next ten
years, nearly every state required that commitment take place in the least restrictive setting. Ingo Keilitz et al., Least Restrictive Treatment of
Involuntary Patients: Translating Concepts into Practice, 29 ST. LOUIS U. L.J. 691, 708 (1985) (listing 47 states with such a requirement).
169. Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966).
170. See, e.g., Welsch v. Likens, 373 F. Supp. 487 (D. Minn. 1974). The Supreme Court, on the other hand, has seemed less receptive to the
idea that the doctrine has constitutional status. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982) (“The Constitution only requires that the
courts make certain that professional judgment in fact was exercised. It is not appropriate for the courts to specify which of several professionally
acceptable choices should have been made”).
171. In Shelton v. Tucker, 364 U.S. 479 (1960), the Court struck down an Arkansas law requiring teachers to list affiliations with
organizations. The Court announced that even a legitimate governmental purpose “cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.” Id. at 488.
172. Hoffman & Foust, supra note 168.
173. See, e.g., Clifford Levy, Voiceless, Defenseless, and a Source of Cash, N.Y. TIMES, April 30, 2002, at A1 (reporting horrific conditions
in unregulated adult living facilities in New York). See also CATHERINE HAWES & ANNE-MARIE KIMBELL, FINAL REPORT:
DETECTING, ADDRESSING AND PREVENTING ELDER ABUSE IN RESIDENTIAL CARE FACILITIES (2009) (reporting
similar conditions in homes for the elderly).
174. David Chambers, Alternatives to Civil Commitment of the Mentally Ill, 70 MICH. L. REV. 1107, 1168 (1972).
175. See, e.g., Dixon v. Weinberger, 405 F. Supp. 974 (D.D.C. 1975), ordering creation of suitable residential facilities that would allow the
implementation of patients’ rights to be treated in the least restrictive environment.
176. See, e.g., Leslz v. Kavanagh, 807 F.2d 1243 (5th Cir. 1987); Phillips v. Thompson, 715 F.2d 365, 368 (7th Cir. 1983).
177. In Pennhurst St. Sch. & Hosp. v. Haldemann, 451 U.S. 1, 29 (1981), the Court stated that it had never imposed on the states “such
open-ended and potentially burdensome obligations as providing ‘appropriate’ treatment in the ‘least restrictive environment,’ ” and that the
legislation before it (the Developmentally Disabled Assistance and Bill of Rights Act) had not done so either.
178. 527 U.S. 581 (1999).
179. Id. at 602.
180. Id. at 603–05.
181. Id. at 607.
182. For a discussion of the least restrictive alternative principle in light of Supreme Court decisions interpreting the Americans with
Disabilities Act, see Michael Perlin, Their Promises of Paradise: Will Olmstead v. L.C. Resuscitate the Constitutional “Least Restrictive
Alternative Principle” in Mental Disability Law? 37 HOUS. L. REV. 999 (2000).
183. Michael L. Perlin, “What’s Good Is Bad, What’s Bad Is Good, You’ll Find Out When You Reach the Top You’re on the Bottom”: Are the
Americans with Disabilities Act (and Olmstead v. L.C.) Anything More Than “Idiot Wind”?, 35 U. MICH. J.L. REFORM 235, 255–56 (2002)
(noting the paucity of decided cases); Shelley R. Jackson et al., Approaches to Implementing Olmstead ADA Ruling, 31 J. L. & MED. ETHICS
47, 48 (2004) (“As described in a recent study by the National Conference of State Legislators, states are struggling to meet Olmstead objectives

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in the face of severe budgetary limitations”).
184. John Petrila, Law & Psychiatry: Has the ADA Been Reborn as a Tool of Broad Community Change for People with Mental Disabilities?, 65
PSYCHIATRIC SERV. 847 (2014); Sharaya L. Cabansaz, Defending Access to Community-Based Services for Individuals with Developmental
Disabilities in the Wake of the “Great Recession,” 55 HOWARD L.J. 1025, 1949–50 (2012).
185. See generally Jan Costello & James Preis, Beyond Least Restrictive Alternative Doctrine: A Constitutional Right to Treatment for Mentally
Disabled Persons in the Community, 20 LOY. L.A. L. REV. 1527 (1987).
186. For a detailed treatment of the issues addressed in this subsection, see Christopher Slobogin, Involuntary Treatment in the Community
of People Who Are Violent and Mentally Ill, 45 HOSP. & COMMUNITY PSYCHIATRY 685 (1994). For a more recent paper arguing that
outpatient commitment is an essential vehicle for breathing life into the least restrictive alternative, see Aaron Goldman, Continued Overreliance
on Involuntary Commitment: The Need for a Less Restrictive Alternative, 36 J. LEGAL MED. 233 (2015).
187. As of October 2016, every United States jurisdiction except Connecticut, Maryland, Massachusetts, and Tennessee had enacted laws
that authorized the use of court-ordered outpatient treatment. Treatment Advocacy Center, Promoting Assisted Outpatient Treatment, available
at http://www.treatmentadvocacycenter.org/fixing-the-system/promoting-assisted-outpatient-treatment (accessed Oct. 1, 2016).
188. Amy Allbright et al., Outpatient Civil Commitment Laws: An Overview, 26 MENTAL & PHYSICAL DISABILITY L. REP. 179
(2002).
189. Id. See also Steven P. Segal & Philip M. Burgess, Conditional Release: A Less Restrictive Alternative to Hospitalization?, 57
PSYCHIATRIC SERV. 1600 (2006) (discussing involuntary outpatient commitment orders on release from hospitalization in Victoria,
Australia).
190. See Erin O’Connor, Is Kendra’s Law a Keeper?: How Kendra’s Law Erodes Fundamental Rights of the Mentally Ill, 11 J.L. & POL’Y 313
(2002). See also Richard C. Boldt, Perspectives on Outpatient Commitment, 49 N. ENG. L. REV. 39 (2014). For prototypes, see N.C. GEN.
STAT. § 122C-261 et seq.; GA. CODE ANN. § 37-3-81 et seq.; HAW. REV. STAT. § 334-121; N.Y. MENTAL HYG. LAW § 9.60.
191. Susan Stefan, Preventive Commitment: The Concept and Its Pitfalls, 11 MENTAL & PHYSICAL DISABILITY L. REP. 288 (1987).
192. The law was a direct response to the death of Kendra Webdale, who died when Andrew Goldstein, a person suffering from
schizophrenia who had unsuccessfully sought treatment, pushed her in front of a subway. New York 5. L.1999, c. 408 (legislative history).
193. New York 5. L.1999, c. 408 (legislative history).
194. N.Y. MENTAL HYG. LAW § 9.60(c).
195. Id. at 9.60(n). See also In re Urcuyo, 185 Misc. 2d 836, 714 N.Y.S. 2d 862 (Sup. Ct. 2000) (upholding this section).
196. See O’Connor, supra note 190, at 361–62.
197. NEW YORK STATE OFFICE OF MENTAL HEALTH, KENDRA’S LAW: FINAL REPORT ON THE STATUS OF
ASSISTED OUTPATIENT TREATMENT (2005) [hereinafter NEW YORK STATE OFFICE]; MARVIN SWARTZ ET AL., NEW
YORK STATE ASSISTED OUTPATIENT TREATMENT PROGRAM EVALUATION (2009).
198. In re K.L., 806 N.E.2d 480 (N.Y. 2004).
199. M. SUSAN RIDGELY ET AL., THE EFFECTIVENESS OF INVOLUNTARY OUTPATIENT TREATMENT (2002)
(finding, based on interviews with officials in a number of states, that outpatient commitment was used sparingly if at all to commit individuals
directly from the community, but rather had become a discharge-planning tool). A study in Florida found that only a minute percentage of
those meeting statutory standards for eligibility for outpatient commitment actually had proceedings initiated against them. John Petrila &
Annette Christy, Florida’s Outpatient Commitment Law: A Lesson in Failed Reform?, 59 PSYCHIATRIC SERV. 21 (2008).
200. See Jeffrey L. Geller, Rights, Wrongs, and the Dilemma of Coerced Community Treatment, 143 AM. J. PSYCHIATRY 1259, 1261
(1986).
201. For instance, in the leading case of Lessard v. Schmidt, 349 Supp. 1078 (E.D. Wis. 1972), a three-judge federal district court held that
involuntary commitment is constitutionally justified only if there is an “extreme likelihood that if the person is not confined he will do
immediate harm to himself or others.” See also Suzuki v. Alba, 438 F. Supp. 1006 (D. Haw. 1977); Mignone v. Vincent, 411 F. Supp. 1386,
1389 (S.D.N.Y. 1976).
202. See In re K.L., 806 N.E. 2d 480 (N.Y. 2004); In re Commitment of Dennis H., 647 N.W. 2d 851 (Wis. 2002); Hachter v. Wachtel,
269 S.E.2d 849, 852 (W. Va. 1980); Commonwealth v. Nassar, 380 Mass. 908, 406 N.E.2d 1286 (1980).
203. See, e.g., United States v. Crape, 603 F.3d 1237, 1244 (11th Cir. 2010); People v. De Anda, 114 Cal. App. 3d 488, 170 Cal. Rptr. 830,
833–37 (1983); State v. Collins, 381 So. 2d 449 (La. 1980); Wolonsky v. Balson, 58 Ohio App. 2d 25, 387 N.E.2d 625 (1976).
204. Alison Pfeffer, “Imminent Danger” and Inconsistency: The Need for National Reform of the “Imminent Danger” Standard for Involuntary
Civil Commitment in the Wake of the Virginia Tech Tragedy, 30 CARDOZO L. REV. 277, 290–91 (2008) (noting that only five state
commitment statutes still require “imminent” danger).
205. See Durham & LaFond, supra note 59, at 401 (under a predicted-deterioration standard adopted in Washington, “new patients stayed
in hospitals longer than other patients and become chronic users of the state mental hospitals”).

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 206. Cf. Stromberg & Stone, supra note 141, at 380 (arguing for release of all but a small group of involuntarily committed people within
100 days).
207. See Jeffrey W. Swanson & Marvin S. Swartz, Why the Evidence for Outpatient Commitment Is Good Enough, 65 PSYCHIATRIC
SERV. 808, 809 (2014) (“A fair-minded reading of the literature on outpatient commitment’s effectiveness would be that the evidence is mixed,
with success largely conditioned on effective implementation, the availability of intensive community-based services, and the duration of the
court order”).
208. Marvin Swartz et al., Can Involuntary Outpatient Commitment Reduce Hospital Recidivism?: Findings from a Randomized Trial with
Severely Mentally Ill Individuals, 156 AM. J. PSYCHIATRY 1968 (1999).
209. Marvin Swartz et al., Randomized Controlled Trial of Outpatient Commitment in North Carolina, 52 PSYCHIATRIC SERVICES 325
(2001). Swartz and colleagues’ study of New York’s Kendra’s Law reached similar conclusions. NEW YORK STATE OFFICE, supra note
197. See also Steve R. Kisely & Leslie A. Campbell, Compulsory Community and Involuntary Outpatient Treatment for People with Severe
Mental Disorders, 12 COCHRANE DATABASE SYSTEMATIC REV. CD004408 (2014) (“CCT [compulsory community treatment]
results in no significant difference in service use, social functioning or quality of life compared with standard voluntary care. People receiving
CCT were, however, less likely to be victims of violent or non-violent crime”).
210. Virginia A. Hiday, Outpatient Commitment: The State of Empirical Research on Outcomes, 9 PSYCHOL. PUB. POL’Y & L. 8, 23
(2003) (summarizing research as of the date of publication); JOSEPH P. MORRISSEY ET AL., INVOLUNTARY OUTPATIENT
COMMITMENT: CURRENT EVIDENCE AND OPTIONS: A REPORT PREPARED FOR THE CONTINUITY OF CARE
PANEL, MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE (Oct. 30, 2013).
For arguments that outpatient commitment is not effective enough to warrant its use as a coercive measure and its cost, see Michael Rowe,
Alternatives to Outpatient Commitment, 41 J. AM. ACAD. PSYCHIATRY & L. 332 (2013). For a contrasting view, see Jeffrey W. Swanson
et al., The Cost of Assisted Outpatient Treatment: Can It Save States Money?, 170 AM. J. PSYCHIATRY 1423 (2013) (study showing that
“[a]ssisted outpatient treatment requires a substantial investment of state resources but can reduce overall service costs for persons with serious
mental illness”). A good summary of the arguments, with citations to the pertinent research through 2016 and a conclusion that the evidence for
outpatient commitment and community treatment orders is weak, can be found at Reinhard Heun et al., Editorials: Little Evidence for
Community Treatment Orders—A Battle Fought with Heavy Weapons, 40 BJPSYCH. BULL. 115 (2016). For a description of the uneven
implementation of outpatient commitment as well as summaries related to evidence of effectiveness, see Marcia L. Meldrum et al.,
Implementation Status of Assisted Outpatient Treatment Programs: A National Survey, 67 PSYCHIATRIC SERV. 630 (2016).
211. John Monahan et al., Use of Leverage to Improve Adherence to Psychiatric Treatment in the Community, 56 PSYCHIATRIC SERV. 37
(2005) (reporting, based on interviews with approximately 200 community mental health patients at five sites, that the percentage of patients
who experienced at least one form of leverage varied from 44 to 59%; that use of money as leverage ranged from 7 to 19% of patients; outpatient
commitment, from 12 to 20%; criminal sanction, from 15 to 30%; and housing, from 23 to 40%).
212. For additional discussions, see Richard Bonnie & John Monahan, From Coercion to Contract: Reframing the Debate on Mandated
Community Treatment for People with Mental Disorders, 29 LAW & HUM. BEHAV. 487 (2005); Tania Gergel & George Szmukler, The
Ethics of Coercion in Community Mental Health Care, in COERCION IN COMMUNITY MENTAL HEALTH CARE:
INTERNATIONAL PERSPECTIVES 55 (Andrew Molodynski et al. eds., 2016).
213. Although the text focuses on a handful of states, a review of key parts of all state laws governing the use of emergency commitment (also
labeled “emergency holds”) appears in Leslie C. Hedman et al., State Laws on Emergency Holds for Mental Health Stabilization, 67
PSYCHIATRIC SERV. 529 (2016).
214. In California, the decision is made by attending staff, a mental health professional designated by the county, or a police officer, who has
the authority to have an individual admitted on an emergency basis. CAL. WELF. & INST. CODE § 5150.
215. N.Y. MENTAL HYG. LAW §§ 9.37, 9.39(a).
216. VA. CODE ANN. § 37.2-809(C).
217. For example, in New York, the statute requires only an “opinion” by the director of county mental health services that the individual is
mentally ill, needs immediate care and treatment, and presents a likelihood of serious harm to self or others. N.Y. MENTAL HYG. LAW §
9.37. In Virginia, the judge or magistrate can issue a temporary detention order without examining the person if the person has been examined
within the previous 72 hours by an employee or designee of the local community services board or there is a significant risk to the potential
evaluator in conducting an evaluation. VA. CODE. ANN. § 37.2-809(C).
218. CAL. WELF. & INST. CODE § 5150.
219. VA. CODE ANN. § 37.2-814.
220. N.Y. MENTAL HYG. LAW § 9.39(a).
221. CAL. WELF. & INST. CODE § 5150(a).
222. Id. § 5150(i).

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 223. VA. CODE ANN. § 37.2-809.
224. CAL. WELF. & INST. CODE § 5150.
225. N.Y. MENTAL HYG. LAW § 9.39.
226. Id.
227. National Center for State Courts, Guidelines for Involuntary Civil Commitment, 10 MENTAL & PHYSICAL DISABILITY L. REP.
409, 427 (1986). See also Uri Avirtur, Screening Services in Civil Commitment of the Mentally Ill: An Attempt to Balance Individual Liberties with
Needs for Treatment, 21 BULL. AM. ACAD. PSYCHIATRY & L. 195 (1993); Shenyang Guo et al., Assessing the Impact of Community-
Based Mobile Crisis Screening Services on Preventing Hospitalization, 52 PSYCHIATRIC SERV. 223 (2001) (community-based crisis
intervention reduced hospitalization by 8%, compared to a group receiving hospital-based crisis intervention services); DAVID HEATH,
HOME TREATMENT FOR ACUTE MENTAL DISORDERS (2004) (summarizing research on the topic from the United States,
Canada, and the United Kingdom).
228. NATIONAL CENTER FOR STATE COURTS, A MODEL FOR THE APPLICATION OF THE LEAST RESTRICTIVE
ALTERNATIVE DOCTRINE IN INVOLUNTARY CIVIL COMMITMENT 291–323 (1984).
229. Id. at 428.
230. New York law provides only for the giving of “notice” to the patient. N.Y. MENTAL HYG. LAW § 9.39. This provision was
challenged on constitutional grounds, but was upheld because nothing in the record proved that patients were failing to receive “notice” that was
“due.” Project Release v. Prevost, 722 F.2d 960 (2d Cir. 1983). The court’s reasoning on this issue is more a model of circularity than of clarity.
231. VA. CODE ANN. § 37.2-814; CAL. WELF. & INST. CODE § 5157. As noted, all patients in New York are entitled to the services
of the Mental Hygiene Legal Service.
232. In New York, the patient (or any relative or friend on his or her behalf) may file within 30 days for review of a judicial decision
authorizing detention, in which case a jury is summoned to hear the case. N.Y. MENTAL HYG. LAW § 9.35. In Virginia, the person has the
right to appeal within 10 days of entry of the order, and if a hearing is granted it will be de novo. VA. CODE ANN. § 37.2-821.
233. See supra note 80 and accompanying text.
234. Virginia, for example, does not exclude hearsay evidence at the commitment proceeding. The court may accept written certification of
the examining physician’s findings. VA. CODE ANN. § 37.2-808.
235. In most if not all jurisdictions, the right against self-incrimination does not apply to civil commitment proceedings. See, e.g., French v.
Blackburn, 428 F. Supp. 1351, 1358–59 (M.D.N.C. 1977), aff’d mem. 443 U.S. 901 (1979); Conservatorship of Mitchell, 114 Cal. 3d 606, 170
Cal. Rptr. 759 (1981).
236. See, e.g., WASH. REV. CODE ANN. tit. 71.05.470; CAL. WELF. & INST. CODE §§ 5251, 6507. California provides an
interpreter if necessary.
237. For example, Ohio has no such exception: In re Miller, 585 N.E. 2d 396, 404 (Ohio 1992); In re Ratz, 2003 Ohio 1569, 2003 Ohio
App. LEXIS 1497 (Ohio Ct. App., Montgomery County Mar. 23, 2003). Texas, however, does: TEX. EVID. R. 509(e)(6). So does
Massachusetts, under certain circumstances: Walden Behavioral Care vs. K.I., 27 N.E.3d 1244 (Mass. 2015).
238. In Stamus v. Leonhardt, 414 F. Supp. 439 (S.D. Iowa 1976), the court struck down a provision permitting exclusion of the respondent
from the hearing when it would be “injurious” to the respondent or “attended with no advantage.”
239. In many states, the hearing is closed unless the respondent requests that it be open; in others, the question is left up to the court; and in
still others, it is closed. CHRISTOPHER SLOBOGIN ET AL., LAW AND THE MENTAL HEALTH SYSTEM: CIVIL AND
CRIMINAL ASPECTS 933–34 (6th ed. 2014).
240. VA. CODE ANN. § 37.2-814.
241. Id.
242. CAL. WELF. & INST. CODE §§ 5250.
243. Id. at § 5256.
244. Id. at § 5257.
245. Id. at §§ 5350–71.
246. N.Y. MENTAL HYG. LAW §§ 9.27, 9.31.
247. Id. at § 9.27.
248. Id. at § 9.31.
249. Paul B. Lieberman et al., Decreasing Length of Stay: Are There Effects on Outcomes of Psychiatric Hospitalization?, 155 AM. J.
PSYCHIATRY 905 (1998) (reporting that between 1988 and 1996, average length of stay fell from 26.5 to 8.3 days). In a national sample of
106 hospitals from which 45,497 patients with serious mental illnesses had been discharged in 2006, the average length of stay was 10 days. Lee
et al., supra note 34. In 2010 the average length of stay for “psychoses”—a category that included depression, bipolar disorder, and
schizophrenia—was 7.2 days. National Center for Health Statistics, National Hospital Discharge Survey: 2010 (table), available at

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http://www.cdc.gov/nchs/fastats/mental-health.htm (accessed Oct. 2, 2016).
250. For example, a chart review study of 391 Missouri hospitalizations from January 2006 to September 2009 found an average length of
stay of 14.6 days, and 75% of patients were discharged within 16 days. However, the lengths of stay ranged from 1 to 189 days. Muaid H.
Ithman et al., Predictors of Length of Stay in an Acute Psychiatric Hospital, 2 J. BIOSAFETY & HEALTH EDUC. 2 (No. 119, 2014).
251. It also closely tracks the model for the commitment of children proposed by Justice Brennan in his concurring and dissenting opinion in
the Parham case. Although vigorously criticizing Chief Justice Burger’s analysis, Brennan agreed that nonjudicial forms of admission for
children might be constitutionally permissible if followed within a reasonable time by judicial hearing with procedural protection for the patient.
422 U.S. at 632–33 (Brennan, J., concurring and dissenting).
252. See Jillane T. Hinds, Involuntary Outpatient Commitment for the Chronically Mentally Ill, 69 NEB. L. REV. 346, 356 (1990).
253. Id. at 358–59. In Florida (based on reports from providers who were eligible to use outpatient commitment), complex notice and other
statutory requirements reduced enthusiasm for using the statute. Annette Christy et al., Involuntary Outpatient Commitment in Florida: Case
Information and Provider Experience and Opinions, 8 INT’L J. FORENSIC MENTAL HEALTH 122 (2009).
254. See David Wexler, Health Care Compliance Principles and the Insanity Acquittee Conditional Release Process, 27 CRIM. L. BULL. 18,
20–22 (1991). The high rate of agreement between the courts and mental health professionals providing testimony in civil commitment
hearings has long been noted. Bruce J. Winick, Therapeutic Jurisprudence and the Civil Commitment Hearing, 10 J. CONTEMP. LEGAL
ISSUES 37 (1999) (suggesting concordance exceeding 95%). Scholars continue to cite Winick’s views. See, e.g., Marie Fallon-Kund & Jerome
Bickenbach, Strengthening the Voice of Persons with Mental Health Problems in Legal Capacity Proceedings, 5 LAWS 29, 38 (Issue 3, 2016). See
also Stier & Stoebe, infra note 285 (concordance between court and expert in 99% of the cases).
255. N.Y. MENTAL HYG. LAW §§ 9.60(h)–(j) (requiring that treatment be available as a condition of issuing an order under Kendra’s
Law).
256. See OR. REV. STAT. §§ 161.295 to 161.351.
257. For a review of the board’s functioning since its inception in 1977 and a description of changes brought about by 2011 state legislation,
see Joseph D. Bloom & Mary Claire Buckley, The Oregon Psychiatric Security Review Board: 1978–2012, 41 J. AM. ACAD. PSYCHIATRY &
L. 560 (2013).
258. N.Y. MENTAL HYG. LAW § 9.60(i)(1) (requiring that a person committed under Kendra’s Law have access to intensive case
management).
259. Cf. Griffin v. Wisconsin, 483 U.S. 868 (1987) (Fourth Amendment governs search of a probationer’s home). See generally Patricia
Griffin et al., Designing Conditional Release Systems for Insanity Acquittees, 18 J. MENTAL HEALTH ADMIN. 231 (1991).
260. 408 U.S. 471 (1972).
261. See, e.g., Dietrich v. Brooks, 27 Or. App. 821, 558 P.2d 357 (1976); In re Richardson, 481 A.2d 473 (D.C. 1984) (requiring only an
affidavit by the hospital superintendent within 24 hours of rehospitalization, citing recent behavior by the patient).
262. G.T. v. Vermont (Vt. 1992) (No. 92–941); Application of True v. Dept. of Health & Welfare, 103 Idaho 151, 645 P.2d 891 (1982); In
re Peterson, 360 N.W.2d 33 (Minn. 1984).
263. See, e.g., United States v. Crape, 603 F. 3d 1237 (2010); Birls v. Wallis, 619 F. Supp. 481 (M.D. Ala. 1985); Hinds, supra note 252, at
376–80.
264. Id.
265. N.C. GEN. STAT. § 122C-267(d) (directing the court to appoint counsel in an outpatient commitment proceeding when the factual
or legal issues are of sufficient complexity to warrant it).
266. RIDGELY ET AL., supra note 199 (noting that law enforcement officials in rural areas were sometimes reluctant to incur both the
financial and time costs associated with transporting an individual significant distances, particularly when there had been no danger exhibited,
and that law enforcement officials in more urban areas had other demands on their time, absent danger on the patient’s part).
267. Karna Halverson, Voluntary Admission and Treatment of Incompetent Persons with a Mental Illness, 32 WM. MITCHELL L. REV.
161 (2005).
268. For further discussion of the advantages and disadvantages of voluntary hospitalization, see GROUP FOR THE ADVANCEMENT
OF PSYCHIATRY, FORCED INTO TREATMENT: THE ROLE OF COERCION IN CLINICAL PRACTICE (1994); Susan C.
Reed & Dan A. Lewis, The Negotiation of Voluntary Admission in Chicago’s State Mental Hospitals, 18 J. PSYCHIATRY & L. 137 (1990);
Francine Cournos et al., Report of the Task Force on Consent to Voluntary Hospitalization, 21 BULL. AM. ACAD. PSYCHIATRY & L. 293
(1993): Steven K. Hoge, On Being “Too Crazy” to Sign into a Mental Hospital: The Issue of Consent to Psychiatric Hospitalization, 22 BULL.
AM. ACAD. PSYCHIATRY & L. 431 (1994).
269. SAMUEL BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 178–79 (1985).
270. See Donald H. Stone, The Benefits of Voluntary Inpatient Psychiatric Hospitalization: Myth or Reality?, . B.U. PUB. INT. L.J. 25, 49-50
(1999); Alicia Lucksted & Robert D. Coursey, Consumer Perceptions of Pressure and Force in Psychiatric Treatments, 46 PSYCHIATRIC

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SERV. 146 (1995); Reed & Lewis, supra note 268.
271. For representative studies, see Sarah D. Rain et al., Perceived Coercion at Hospital Admission and Adherence to Mental Health Treatment
after Discharge, 54 PSYCHIATRIC SERV. 103 (2003); Steven Hoge et al., Perceptions of Coercion in the Admission of Voluntary and
Involuntary Psychiatric Patients, 20 INT’L J.L. & PSYCHIATRY 167 (1997); Charles W. Lidz et al., Factual Sources of Psychiatric Patients’
Perceptions of Coercion in the Hospital Admission Process, 155 AM. J. PSYCHIATRY 1254 (1998).
272. 494 U.S. 113 (1990).
273. Winick has argued that at least when a person “assents,” competence to make treatment decisions should not be a requirement for
voluntary admission, given the benefits of “voluntary” as opposed to “involuntary” treatment. Bruce Winick, Competency to Consent to
Voluntary Hospitalization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, 14 INT’L J.L. & PSYCHIATRY 169 (1991).
274. Binyamin C. Appelbaum et al., Competence to Consent to Voluntary Hospitalization: A Test of a Standard Proposed by APA, 49
PSYCHIATRIC SERV. 1193 (1999) (finding that the vast majority of patients met the low threshold for competence suggested by the
American Psychiatric Association for voluntary admission decisions, but that a subgroup of patients required special care in assuring their
understanding of the consequences of their decision); Norman G. Poythress et al., Capacity to Consent to Voluntary Hospitalization: Searching
for a Satisfactory Zinermon Screen, 24 BULL. AM. ACAD. PSYCHIATRY & L. 439 (1996) (using an instrument developed by the
MacArthur Foundation Research Network, the authors found that 55% of 120 persons brought to crisis stabilization units for involuntary
psychiatry evaluation demonstrated impairment in the capacity to understand at least one of four items of information relevant to voluntary
admission); Steward Levine et al., Competency of Geropsychiatric Patients to Consent to Voluntary Hospitalization, 2 AM. J. GERIATRIC
PSYCHIATRY 300 (1994).
275. Cournos et al., supra note 268, at 300. Pinals and Mossman point out that “foregoing a commitment hearing may cause little practical
harm to patients who are so incapacitated as to be incompetent to consent to psychiatric hospitalization and who then receive competence-
restoring treatment. This has become even truer as typical stays in psychiatric hospitals have shortened to just a few days.” PINALS &
MOSSMAN, supra note 75, at 30.
276. PAUL S. APPELBAUM, ALMOST A REVOLUTION: MENTAL HEALTH LAW AND THE LIMITS OF CHANGE
(1994).
277. See Haupt, supra note 32; Charles A. Kiesler, Public and Professional Myths about Mental Hospitalization: An Empirical Reassessment of
Policy Related Beliefs, 37 AM. PSYCHOLOGIST 1323 (1982); Charles A. Kiesler & Amy E. Sibulkin, Episodic Rate of Mental
Hospitalization, 141 AM. J. PSYCHIATRY 44 (1984). A particularly noteworthy reason for the push toward community treatment is a new
emphasis on consumer-centered treatment, psychosocial rehabilitation, and the principle of recovery (vs. symptom management) as a goal of
treatment, with the use of hospitalization primarily for symptom reduction in most cases. See, e.g., William A. Anthony, Recovery from Mental
Illness: The Guiding Vision of the Mental Health Service System in the 1990s, 16 PSYCHOSOCIAL REHAB. J. 11 (1993); PRESIDENT’S
NEW FREEDOM COMMISSION ON MENTAL HEALTH, supra note 146, at 27 (“Nearly every consumer of mental health services
who testified before or submitted public comments to the Commission expressed the need to fully participate in his or her plan for recovery . . .
Consumers of mental health services must stand at the center of the system of care. Consumers’ needs must drive the care and services that are
provided”); Nora Jacobsen & Dianne Greenly, What Is Recovery?: A Conceptual Model and Explication, 52 PSYCHIATRIC SERV. 482
(2001).
278. JOHN Q. LAFOND & MARY L. DURHAM, BACK TO THE ASYLUM: THE FUTURE OF MENTAL HEALTH LAW
AND POLICY IN THE UNITED STATES 144–45 (1992) (“Studies clearly demonstrate that when legislative reforms have been enacted to
limit the use of involuntary commitment, there has been an immediate decrease in the number of commitments for at least two years. But the
decline in admission rates is short-lived”); Michael R. Bagby & Leslie Atkinson, The Effects of Legislative Reform on Civil Commitment
Admission Rates: A Critical Analysis, 6 BEHAV. SCI. & L. 45 (1988) (finding that “15 of the 17 independent data sets showed that increases
in civil commitment rates followed initial post-reform decreases,” and that “[a]ll three studies which included extended post-reform observations
revealed that admissions rates eventually approach pre-reform levels”). Appelbaum has noted that changes in civil commitment practices were
“much less profound than they are on paper [and that] differences in involuntary hospitalization today compared with the 1950s and ‘60s
probably have more to do with changes to the mental health system than with any changes to civil commitment law.” Paul Appelbaum, A
History of Civil Commitment and Related Reforms in the United States: Lessons for Today, 25 DEV. MENTAL HEALTH L. 13, 18 (2006). In
more recent years, researchers have turned to the study of changes in outpatient commitment law, reflecting the greater currency of such
changes. See § 10.03(h).
279. In general, law effects were assessed through time-series designs. See, e.g., Felix v. Milliken, 463 F. Supp. 1360 (E.D. Mich. 1978).
280. James Luckey & John Berman, Effects of a New Commitment Law on Involuntary Admissions and Service Utilization Patterns, 3 LAW
& HUM. BEHAV. 149 (1979).
281. Nebraska uses an interdisciplinary quasi-judicial board for civil commitment. NEB. REV. STAT. § 71-917. This administrative
mechanism has been held to provide sufficient protection of the respondent’s right to due process. Doremus v. Farrell, 407 F. Supp. 509 (D.

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Neb. 1975). Nebraska’s procedures are also unusual in that the county attorney, who is also the criminal prosecutor, functions as both gatekeeper
(e.g., in determining whether there is cause to hospitalize someone involuntarily) and prosecutor in commitment proceedings. NEB. REV.
STAT. §§ 71-921 and 71-949. Although there is considerable potential for abuse in such a situation (e.g., the county attorney can move to
civilly commit an individual when evidence is too weak for him or her to pursue criminal prosecution), the procedure is a particularly close
analogue to prosecutorial gatekeeping in the criminal process as described in § 2.04(a).
282. Monica Malone, Effect of Statute Changes on Admission Trends at a New Jersey State Psychiatric Hospital (2008) (PCOM Psychology
Dissertations), available at http://digitalcommons.pcom.edu/cgi/viewcontent.cgi?article=1091&context=psychology_dissertations (finding that
admissions to a New Jersey state psychiatric hospital did not change at four points [1965, 1988, 1994, 1998] when major statutory changes
occurred).
283. Between 1956 and 1980, the number of patients in public mental hospitals dropped from 551,390 to 132,000, but the annual admission
rate almost doubled, from 185,597 to 390,000. BRAKEL ET AL., supra note 269, at 47. This trend has continued. See supra notes 30–32.
284. See Morse, supra note 10, at 67–79.
285. See, e.g., Candice Player, Outpatient Commitment and Procedural Due Process, 38 INT’L J. L. PSYCHIATRY 100, 112 (2015); Joshua
Cook, Lawyering and Bad Role Models: The Role of Respondent’s Counsel in a Civil Commitment Hearing, 14 GEO. J. LEGAL ETHICS 179
(2000); Virginia A. Hiday, Court Discretion: Application of the Dangerousness Standard in Civil Commitment, 5 LAW & HUM. BEHAV. 275
(1981); Paul D. Lipsitt & David Lelos, Decision Makers in Law and Psychiatry and the Involuntary Commitment Process, 17 COMMUNITY
MENTAL HEALTH J. 114 (1981); Serena Stier & Kurt Stoebe, Involuntary Hospitalization of the Mentally Ill in Iowa: The Failure of the
1975 Legislation, 64 IOWA L. REV. 1284 (1979); Carol Warren, Involuntary Commitment for Mental Disorder: The Application of California’s
Lanterman–Petris–Short Act, 11 LAW & SOC’Y REV. 629 (1977); David Wexler & Stanley Scoville, The Administration of Psychiatric Justice:
Theory and Practice in Arizona, 13 ARIZ. L. REV. 1 (1971); James Wickham, Hospitalization of the Mentally Ill in Idaho and the Need for
Reform, 16 IDAHO L. REV. 211 (1980); Jerome Yesavage, A Study of Mandatory Review of Civil Commitment, 41 ARCHIVES GEN.
PSYCHIATRY 229 (1984); Thomas Zander, Civil Commitment in Wisconsin: The Impact of Lessard v. Schmidt, 1976 WIS. L. REV. 503;
Harold Bursztajn et al., Process Analysis for Judge’s Commitment Decisions: A Preliminary Empirical Study, 143 AM. J. PSYCHIATRY 170
(1986).
286. Robert Miller, Need for Treatment Criteria for Involuntary Civil Commitment: Impact in Practice, 149 AM. J. PSYCHIATRY 1380
(1992) (in a survey of eight states that changed to broader commitment standards, finding that the change decreased admissions in at least five
states, and concluding that measurement of legal effects is very difficult in this area); John Monahan et al., The Stone–Roth Model of Civil
Commitment and the California Dangerousness Standard: An Operational Comparison, 39 ARCHIVES GEN. PSYCHIATRY 1267 (1982);
Jonathan Marx & Richard Levinson, Statutory Change and “Street-Level” Implementation of Psychiatric Commitment, 27 SOC. SCI. & MED.
1247 (1988). But see Bagby & Atkinson, supra note 278, at 58 (legislative provisions that have sought to expand medical prerogatives result in a
sustained increase in civil commitments, in part because mental health professionals perceive legalistic laws as an unnecessary constraint in the
treatment of mentally ill persons); Tad Hasebe & John McRae, A Ten-Year Study of Civil Commitments in Washington State, 38 HOSP. &
COMMUNITY PSYCHIATRY 983 (1987). Compare also Ken Hoge et al., An Empirical Comparison of the Stone and Dangerousness Criteria
for Civil Commitment, 146 AM. J. PSYCHIATRY 170 (1989) (resident psychiatrists’ application of Stone’s proposal [see § 10.10(b)] would
drastically reduce the number committed when compared to application of a dangerousness standard [from 296 to 32]), with Steven Segal et al.,
Civil Commitment in the Psychiatric Emergency Room, 45 ARCHIVES GEN. PSYCHIATRY 753 (1988) (clinicians’ ratings of “danger” and
“grave disability” under legalistic statutes were closely related to ratings of “most severely ill” on diagnostic and symptomatic assessments of
mental disorder).
More recent research suggests that “extrastatutory” factors can also influence clinical decision making regarding civil commitment. Nancy B.
Engleman et al., Clinicians’ Decisionmaking about Involuntary Commitment, 49 PSYCHIATRIC SERV. 941 (1998) (noting that the number
of clients retained by the clinician in the previous three months, the locale of the evaluation [inpatient or mobile crisis setting], and the
availability of detention beds in the community affected clinical decision making); S. Pirzada Sattar et al., To Commit or Not to Commit: The
Psychiatry Resident as a Variable in Involuntary Commitment Decision, 30 ACAD. PSYCHIATRY 191 (2006) (residents’ level of training and
risk-taking proclivities may influence decisions about the use of civil commitment). At some level, there appears to be a disconnect between
what clinicians would like civil commitment criteria to be and what those criteria actually are, which in turn may influence clinical judgment in
particular cases. See Robert A. Brooks, U.S. Psychiatrists’ Beliefs and Wants about Involuntary Civil Commitment Grounds, 29 INT. J.L. &
PSYCHIATRY 13 (2006).
287. Hoffman & Foust, supra note 168, at 1126. To some extent, however, the neglect of the least-restrictive-alternative notion may be due
to a belief that community resources are lacking and that hospitalization therefore represents the best alternative. Eric Turkheimer & Charles
D. H. Parry, Why the Gap?: Practice and Policy in Civil Commitment Hearings, 47 AM. PSYCHOLOGIST 646 (1992).
288. This thesis was suggested by Alan Stone, Psychiatric Abuse and Legal Reform: Two Ways to Make a Bad Situation Worse, 5 INT’L J.L.
& PSYCHIATRY 9, 10–16 (1982). Several studies seem to debunk the criminalization thesis. See Kenneth L. Appelbaum et al., Are Pretrial

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Commitments for Forensic Evaluation Used to Control Nuisance Behavior?, 42 HOSP. & COMMUNITY PSYCHIATRY 603 (1992); Virginia
Hiday, Civil Commitment and Arrests: An Investigation of the Criminalization Thesis, 180 J. NERVOUS & MENTAL DISEASE 184 (1992);
Thomas M. Arvanites, A Comparison of Civil Patients and Incompetent Defendants: Pre and Post Deinstitutionalization, 18 BULL. AM.
ACAD. PSYCHIATRY & L. 393 (1990). Linda A. Teplin, The Criminalization Hypothesis: Myth, Misnomer, or Management Strategy?,
LAW AND MENTAL HEALTH: MAJOR DEVELOPMENTS AND RESEARCH NEEDS 149 (Saleem Shah & Bruce D. Sales eds.,
1991).
289. See generally John Thibaut & Laurens Walker, A Theory of Procedure, 66 CAL. L. REV. 541 (1978); Tom R. Tyler, Procedural Justice,
Legitimacy, and the Effective Rule of Law, 30 CRIME & JUST. 283 (2003).
290. See generally the studies cited supra notes 279 & 285–86.
291. Stier & Stoebe, supra note 285.
292. See, e.g., Donald H. Stone, Giving a Voice to the Silent Mentally Ill Client: An Empirical Study of the Role of Counsel in the Civil
Commitment Hearing, 70 UMKC L. REV. 603, 608 (2002) (finding that 20% of surveyed attorneys questioned the adversarial approach);
Naomi Leavitt & Patricia L. Maykuth, Conformance to Attorney Performance Standards: Advocacy Behavior in a Maximum Security Prison
Hospital, 13 LAW & HUM. BEHAV. 217 (1989) (competence of representation in civil commitment cases was substantially lower than in
criminal commitment cases, even after implementation of attorney performance standards defining minimally adequate representation); Charles
D. Parry & Eric Turkheimer, Length of Hospitalization and Outcome of Commitment and Recommitment Hearings, 43 HOSP. &
COMMUNITY PSYCHIATRY 65 (1992) (focusing on recommitment hearings); the articles by Hiday and by Wexler & Scoville, supra note
285; Elliott Andalman & David Chambers, Effective Counsel for Persons Facing Civil Commitment: A Survey, a Polemic, and a Proposal, 45
MISS. L.J. 43 (1974); Fred Cohen, The Function of the Attorney and the Commitment of the Mentally Ill, 44 TEX. L. REV. 424 (1966); State
ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977).
293. William H. Fisher & Thomas Grisso, Commentary: Civil Commitment Statutes—40 Years of Circumvention, 38 J. AM. ACAD.
PSYCHIATRY & L. 365, 367 (2010) (commenting on “a double standard with respect to the application of Arizona’s commitment standards
to persons who have faced criminal charges and been found not competent and not restorable,” and asking, “Where are the lawyers?”). See also
Gwen A. Levitt et al., Civil Commitment Outcomes of Incompetent Defendants, 38 J. AM. ACAD. PSYCHIATRY & L. 349 (2010)
(defendants found not competent and not restorable underwent involuntary hospitalization, despite meeting fewer admission criteria and being
less dangerous than involuntary patients admitted from the community), Player, supra note 285.
294. In one report, a hospital’s director asked that for a week, no commitments be made unless absolutely necessary; yet the commitment rate
did not change at all. Israel Zwerling et al., “No-Commitment Week”: A Feasibility Study, 135 AM. J. PSYCHIATRY 1198 (1978). In the
second report, a psychologist trained mental health lawyers in cross-examining mental health professionals, but the attorneys did not apply their
new knowledge in commitment hearings, explaining that they believed their clients belonged in the hospital. Norman Poythress, Psychiatric
Expertise in Civil Commitment: Training Attorneys to Cope with Expert Testimony, 2 LAW & HUM. BEHAV. 1 (1978).
295. Scott M. Reichlin & Joseph D. Bloom, Effects of Publicity on a Forensic Hospital, 21 BULL. AM. ACAD. PSYCHIATRY & L. 475
(1993); Norman Poythress & Stanley L. Brodsky, In the Wake of a Negligent Release Law Suit: An Investigation of Professional Consequence and
Institutional Impact on a State Psychiatric Hospital, 16 LAW & HUM. BEHAV. 155 (1992).
296. Charles Kiesler, Mental Hospitals and Alternative Care: Noninstitutionalization as Potential Public Policy for Mental Patients, 37 AM.
PSYCHOLOGIST 349, 359 (1982).
297. Eric Kessell et al., Rates of Unemployment and Incidence of Police-Initiated Examinations for Involuntary Hospitalization in Florida, 57
PSYCHIATRIC SERV. 1435 (2006) (hypothesizing decreased tolerance for antisocial and self-harming behavior during periods of economic
stress, rather than an increase in these behaviors).
298. Ralph Catalone et al., Psychiatric Emergencies after the Terrorist Attacks of September 11, 2001, 55 PSYCHIATRIC SERV. 163–166,
166 (2004) (reporting increased involuntary hospitalizations right following the Sept. 11, 2001 terrorist attacks—an event unrelated to risk
presented by people with mental illnesses).
299. See Kiesler, supra note 277, at 1331.
300. See Lynn Kahle & Bruce Sales, Due Process of Law and the Attitudes of Professionals toward Civil Commitment, in NEW
DIRECTIONS IN PSYCHOLOGICAL RESEARCH 265 (Paul Lipsitt & Bruce Sales eds., 1979).
301. Nancy B. Engleman et al., Clinicians’ Decision Making about Involuntary Commitment, 45 PSYCHIATRIC SERV. 941 (1998) (citing
studies).
302. Id. (finding that “the proportion of patients detained by the clinician in the past three months,” whether “the evaluation occurred [in] an
in-house emergency service or a mobile crisis unit,” and “[t]he availability of detention beds in the community” predicted whether a patient
would be detained).
303. Elizabeth Lloyd McGarvey et al., Decisions to Initiate Involuntary Commitment: The Role of Intensive Community Services and Other
Factors, 64 PSYCHIATRIC SERV. 120 (2013) (Virginia study finding that “unavailability of alternatives to hospitalization, such as temporary

1036
housing or residential crisis stabilization” was a major predictor, along with “clinical factors related to the commitment criteria, including risk of
self-harm or harm to others” and severity of situation)
304. Vincent Lorant et al., Involuntary Commitment in Psychiatric Care: What Drives the Decision?, 42 SOC. PSYCHIATRY &
PSYCHIATRIC EPIDEMIOLOGY 360, 361 (2007) (Belgian study fining that percentage of patients involuntarily committed was high if no
less restrictive alternative was available or when a patient refused care).
305. McGarvey et al., supra note 303, at 125.
306. See, e.g., Zander, supra note 285, at 523, 524–26, 530–31, 539–42, 549–51, 552–54 (describing civil commitment hearings in Dane
County, Wisconsin).
307. See David Wexler, The Structure of Civil Commitment: Patterns, Pressures, and Interactions in Mental Health Legislation, 7 LAW &
HUM. BEHAV. 1 (1983). For an excellent discussion of structural changes in the aftermath of the Virginia Tech shootings, see Richard J.
Bonnie et al., Mental Health System Transformation after the Virginia Tech Tragedy, 28 HEALTH AFF. 793 (2009).
308. Kiesler, supra note 296.
309. Id. at 357–58.
310. Id. at 357.
311. Id. at 358–59.
312. It does not appear that this class of people was directly studied in the research reported by Kiesler, given the likelihood that few courts
would have allowed such persons to be randomly assigned to an outpatient program. See Mark Mills & Bonnie Cummins,
Deinstitutionalization Reconsidered, 5 INT’L J.L. & PSYCHIATRY 271, 276 (1982) (a review of studies concluding that the studies showing
clearly favorable outcomes for community treatment had excluded the most severely disturbed patients, while those that included this group
showed community treatment was not as successful).
313. Mary Test, Effective Treatment of the Chronically Mentally Ill: What Is Necessary, 37 J. SOC. ISSUES 71, 82 (1981) (comprehensive
community services can eliminate the need for hospitalization “for all but 15 to 25%” of chronically ill individuals).
314. See, e.g., William B. Hawthorne et al., Comparison of Outcomes of Acute Care in Short-Term Residential Treatment and Psychiatric
Hospital Settings, 50 PSYCHIATRIC SERV. 401 (1999) (short-term acute residential treatment was less costly yet as effective as
hospitalization for many voluntary adult patients), and William B. Hawthorne et al., A Randomized Trial of Short-Term Acute Residential
Treatment for Veterans, 56 PSYCHIATRIC SERV. 1379 (2005) (short-term acute residential treatment provided care as effective as
hospitalization, at considerably lower cost). However, data relevant to 21st-century practices remains limited, and “[m]ore research is needed to
establish the effectiveness of service models and target populations for residential alternatives to standard acute wards.” Brynmor Lloyd-Evans et
al., Residential Alternatives to Acute Psychiatric Hospital Admission: Systematic Review, 195 BRIT. J. PSYCHIATRY 109 (2009) (also finding
that of 27 relevant studies, nine provided “limited preliminary evidence that community-based alternatives may be cheaper and individuals more
satisfied than in standard acute wards”). See also Kerry A. Thomas & Debra Rickwood, Clinical and Cost-Effectiveness of Acute and Subacute
Residential Mental Health Services: A Systematic Review, 64 PSYCHIATRIC SERV. 1140 (2013) (“Acute residential mental health services
offer treatment outcomes equivalent to those of inpatient units,” but “[f]urther research is needed to determine client groups that will benefit
most from these alternative services”).
315. For a comprehensive discussion of the impact of financing on services from 1950 to the early part of the 21st century, see RICHARD
G. GRANK & SHERRY A. GLIED, BETTER BUT NOT WELL: MENTAL HEALTH POLICY IN THE UNITED STATES
SINCE 1950 (2006). For recent studies that examine the impact of hospitalization, see, e.g., Alexandre Andrade Loch, Discharged from a
Mental Health Admission Ward: Is It Safe to Go Home? A Review on the Negative Outcomes of Psychiatric Hospitalization, 7 PSYCHOL. RES.
& BEHAV. MGMT. 137 (2014); Nicolas Rusch et al., Emotional Reactions to Involuntary Psychiatric Hospitalization and Stigma-Related
Stress among People with Mental Illness, 264 EUR. ARCHIVES PSYCHIATRY & CLINICAL NEUROSCI. 35 (2014).
316. Bloom has asserted that for a variety of reasons, including changes in financing and reduction in service capacity, long-term civil
commitment has practically disappeared in Oregon. Joseph D. Bloom, Civil Commitment Is Disappearing in Oregon, 34 J. AM. ACAD.
PSYCHIATRY & L. 534 (2006). On the other hand, a 2011 study from Oregon concluded that cuts in Medicaid funding may have led to
increased use of state psychiatric hospitalization for patients with schizophrenia. Bentson H. McFarland & Jon C. Collins, Medicaid Cutbacks
and State Psychiatric Hospitalization of Patients with Schizophrenia, 62 PSYCHIATRIC SERV. 871 (2011).
317. See studies cited supra note 285.
318. AM. BAR ASS’N (ABA), MODEL CODE OF PROFESSIONAL RESPONSIBILITY canon 7.
319. See generally Stephen Briggs, The Myth and the Mischief of Zealous Advocacy, 34 COLO, LAW. 33 (Jan. 2005); DOUGLAS
ROSENTHAL, LAWYER AND CLIENT: WHO’S IN CHARGE? (1974).
320. ABA, MODEL CODE OF PROFESSIONAL RESPONSIBILITY, ethical consideration (EC) 7-11.
321. Model Rule 1.14 states that “[w]hen a client’s ability to make adequately considered decisions in connection with the representation is
impaired, . . . the lawyer shall, as far as reasonably possible, maintain a normal client–lawyer relationship with the client,” and is to seek a

1037
guardian “only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interests.” An earlier, rejected draft
had required the lawyer to seek appointment of a guardian “when doing so is necessary in the client’s best interests.” STEPHEN GILLERS &
ROY D. SIMON, REGULATION OF LAWYERS: STATUTES AND STANDARDS 155 (1999) (noting that this provision was
contained in a 1980 Discussion Draft of Model Rule 1.14).
322. ABA, MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-12.
323. See, e.g., Samuel Brakel, Legal Schizophrenia and the Mental Health Lawyer: Present Trends in Civil Commitment Litigation, 6 BEHAV.
SCI. & L. 3 (1988); Robert H. Woody, Public Policy and Legal Aid in Mental Hospitals: The Dimensions of the Problem and Their Implications
for Legal Education and Practice, 1982 A.B.F. RES. J. 237 (1982).
324. See Grant H. Morris, Pursuing Justice for the Mentally Disabled, 42 SAN DIEGO L. REV. 757, 766 (2005) (arguing that the beliefs
that mentally ill people are unable to determine what is best for them, and that courts should rely on the opinions of doctors, are based on a
prejudice against the mentally ill); John J. Ensminger & Thomas D. Liguori, The Therapeutic Significance of the Civil Commitment Hearing: An
Unexplored Potential, 6 J. PSYCHIATRY & L. 5 (1978) (arguing that adversarialism can have beneficial effects on the respondent and
relationships with doctors and family). See also Tom R. Tyler, The Psychological Consequences of Judicial Procedures: Implications for Civil
Commitment Hearings, 46 SMU L. REV. 433 (1992). But see Sumner J. Sydeman et al., Procedural Justice in the Context of Civil Commitment:
A Critique of Tyler’s Analysis, 3 PSYCHOL. PUB. POL’Y & L. 207 (1996).
325. See MICHAEL SAKS & REID HASTIE, SOCIAL PSYCHOLOGY IN COURT 119–33 (1978).
326. WEXLER, supra note 42, at 99.
327. See, e.g., Stone, supra note 292, at 613 (arguing that the adversarial role is presumptively warranted on ethical grounds and providing
suggestions for implementing it during commitment proceedings); Henry Chen, The Mediation Approach: Representing Clients with Mental
Illness in Civil Commitment Proceedings, 19 GEO. J. LEGAL ETHICS 599 (2006); Preparation and Trial of a Civil Commitment Case, 5
MENTAL DISABILITY L. REP. 201, 281 (1981).
328. ARIZ. REV. STAT. ANN. § 36-537.
329. 306 Mont. 1, 29 P.3d 485 (2001).
330. Id. at 501.
331. See Mossman et al., supra note 131, at 450.
332. PINALS & MOSSMAN, supra note 75, at 191.
333. Id. at 191–93.
334. The Division of Mental Health Advocacy in the Department of the Public Advocate in New Jersey provides an example. See Perlin,
supra note 101, at 156.
335. See Robert Farrell, The Right of an Indigent Civil Commitment Defendant to Psychiatric Assistance of His Choice at State Expense, 11
IDAHO L. REV. 141 (1975). But see In re Gannon, 123 N.J. Super. 104, 301 A.2d 493 (Somerset Co. 1973).
336. Douglas S. Lehrer & Jennifer Lorenz, Anosognosia in Schizophrenia: Hidden in Plain Sight, 11 INNOVATIONS CLINICAL
NEUROSCI. 10 (2014).
337. Cf. Fuller Torrey & Mary Zdanowicz, Outpatient Commitment: What, Why, and for Whom?, 52 PSYCHIATRIC SERV. 37 (2001)
(arguing that cognitive disability that prevents individuals from forming insight into their illness and need for treatment should justify
outpatient civil commitment).
338. AM. PSYCHIATRIC ASS’N, PRACTICE GUIDELINES FOR THE PSYCHIATRIC EVALUATION OF ADULTS 18 (3d
ed. 2016), available at http://psychiatryonline.org/doi/full/10.1176/appi.books.9780890426760.pe02 [hereinafter PSYCHIATRIC
PRACTICE GUIDELINES]. These guidelines acknowledge that “[t]he strength of research evidence supporting these recommendations is
low. However, a substantial body of epidemiological, cohort, case–control, and psychological autopsy studies has shown associations between
the risk factors described in this guideline and long-term relative risk of suicide or suicide attempts in populations.” Id. at 18–19.
For a recent discussion on the evaluation of children and adolescents, see Michael L. LeFevre, Screening for Suicide Risk in Adolescents,
Adults, and Older Adults in Primary Care: U.S. Preventive Services Task Force Recommendation Statement, 160 ANNALS INTERNAL MED.
719 (2014).
339. PSYCHIATRIC PRACTICE GUIDELINES, supra note 338, at 21.
340. Id. at 22–23.
341. See, e.g., Paul R. Stasiewicz et al., Factors Affecting Agreement between Severely Mentally Ill Alcohol Abusers’ and Collaterals’ Reports of
Alcohol and Other Substance Use, 22 PSYCHOL. ADDICTIVE BEHAV. 78 (2008) (study of individuals with severe mental illness showed
poor agreement between reports of patients and collaterals on the patients’ use of alcohol and drugs).
342. Betsy S. Comstock, Decision to Hospitalize and Alternatives to Hospitalization, in PSYCHIATRIC PRACTICE GUIDELINES,
supra note 338, at 207.
343. Id. at 210–11.

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 344. Id. at 210–12.
345. John Kalafat & Maureen Underwood, Crisis Intervention in the Context of Outpatient Treatment of Suicidal Patients, in
ASSESSMENT, TREATMENT AND PREVENTION OF SUICIDAL BEHAVIOR 171–177 (Robert I. Yufit & David Lester eds.,
2004).
346. See, e.g., NEB. REV. STAT. § 83-1009.
347. See, e.g., CAL. WELF. & INST. CODE §§ 5350, 5371.
348. See Allen v. Illinois, 478 U.S. 364 (1986) [discussed in § 4.02]; State v. ex rel. Strotman, 2011 WL 5084951 (2011). This rule applies
even in sexually violent predator proceedings. In re Commitment of Fisher, 164 S.W.3d 637 (Tex. 2005). A patient may not invoke his or her
constitutional right against self-incrimination in a proceeding involving involuntary admission under the Mental Health and Developmental
Disabilities Code unless the testimony might subject him or her to criminal liability. Id.; In re Daniel K., 990 N.E.2d 230 (App. Ct. 2d Dist.,
Ill., 2013). But see 405 ILL. COMP. STAT. § 5/3-208 (applying Fifth Amendment in civil commitment proceedings).
349. Although later undermined in Allen, supra note 348, In re Gault, 387 U.S. 1, 49 (1967) stated: “[T]he availability of the privilege does
not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure
which it invites. The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.”
350. Andersen v. Maryland, 427 U.S. 463, 475 (1976); Bellis v. United States, 417 U.S. 85, 88 (1974); United States v. White, 322 U.S. 694,
698 (1944).
351. We include the words “attempt to” in recognition that many persons for whom commitment is considered are too impaired to
understand such an explanation (or in some cases even to listen to it). For individuals who are this impaired, a court’s order satisfies ethics
requirements. For additional discussion, see PINALS & MOSSMAN, supra note 75, at 118–19 & 128.
352. The imposition of sanctions for refusing to talk in civil commitment hearings is problematic. For example, should a person with
catatonic muteness be held in contempt of court? Cf. Christopher Slobogin, Estelle v. Smith: The Constitutional Contours of the Forensic
Evaluation, 32 EMORY L.J. 71, 103–06 (1982).
353. See Preparation and Trial of a Civil Commitment Case, supra note 327, and cases cited therein.
354. As indicated in § 10.04(a)(1), even under relatively legalistic statutes there may be no right to counsel at the temporary detention
hearing. See, e.g., VA. CODE ANN. § 37.2-816. Under “medical” statutes, there may be a right to consult counsel after admission but no
automatic appointment of counsel. See, e.g., N.Y. MENTAL HYG. LAW § 9.07.
355. State statutes may require the presentation of information about the process and rights within it. Even in the absence of such statutes,
such “warnings” are ethically required. See American Psychological Association, Ethical Principles of Psychologists and Code of Conduct with the
2010 Amendments (2010) (stds. 3.10 and 9.03), available at http://www.apa.org/ethics/code/principles.pdf.
356. See In re Scott L., 469 A.2d 1336 (N.H. 1983).
357. Cf. STONE, supra note 8, at 19–20. Because the “prescreener” is based in a community mental health center, he or she can be especially
important in making the proper links among prehospital community-based care, the hospital, and community-based aftercare.
358. 442 U.S. 584 (1979).
359. For a general discussion of Parham and its requirements, see Jan C. Costello, Why Have Hearings for Kids If You’re Not Going to Listen?:
A Therapeutic Jurisprudence Approach to Mental Disability Proceedings for Minors, 71 U. CIN. L. REV. 19 (2002) (arguing that the relatively
adversarial process outlined in Parham is less beneficial to children than a more therapeutically oriented approach). For a discussion of the
procedural protections that state legislatures have extended children in some instances, see Louis A. Chiafullo, Innocents Imprisoned: The
Deficiencies of the New Jersey Standard Governing the Involuntary Commitment of Children, 24 SETON HALL L. REV. 1507 (1994).
360. Although it is outdated, this source provides the relevant citations for most states: Richard Redding, Due Process Protections for
Juveniles in Civil Commitment Proceedings, in ABA. JUVENILE COMMITMENT (Elissa C. Lichtenstein et al. eds., 1991), 57–59.
361. Melton, supra note 101; Perlin, supra note 101; Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social Facts:
Parham as an Example, 22 J. FAM. L. (1984); James Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62
CAL. L. REV. 840 (1974). There has been much discussion of how decisionmaking should be distributed between adolescents and their
parents in a number of health contexts. See, e.g., Rhonda Hartman, AIDS and Adolescents, 7 J. HEALTH CARE L. & POL’Y 280 (2004);
Randy Frances Kandel & Anne Griffiths, Reconfiguring Personhood: From Ungovernability to Parent Adolescent Autonomy Conflict Actions, 53
SYRACUSE L. REV. 995 (2003).
362. See, e.g., J.L. v. Parham, 412 F. Supp. 112, 124 (M.D. Ga. 1976); JANE KNITZER, UNCLAIMED CHILDREN: THE FAILURE
OF PUBLIC RESPONSIBILITY TO CHILDREN AND ADOLESCENTS IN NEED OF MENTAL HEALTH SERVICES 11–12
nn.23, 46 (1982); Robin S. Barack, Hospitalization of Emotionally Disturbed Children: Who Gets Hospitalized and Why, 56 AM. J.
ORTHOPSYCHIATRY 317 (1986) (no differences in diagnosis, academic achievement, intellectual functioning, or gender between inpatients
and special-class students; the key difference was that for the former group, a critical event had occurred within a month prior to admission).
363. KNITZER, supra note 362, at 11 n.21.

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 364. See, e.g., 412 F. Supp. at 112, 124; L. OLSON, A POINT IN TIME STUDY OF CHILDREN AND ADOLESCENTS IN
STATE HOSPITALS 5 (1981); Lois Weithorn, Mental Hospitalization of Troubled Youth: An Analysis of Skyrocketing Admission Rates, 40
STAN. L. REV. 773, 773–74 (1988) (finding that, in some communities, admissions of adolescents had increased between 250 and 400%,
attributable largely to a desire “to manage a population for whom such intervention is typically inappropriate: ‘troublesome’ youth who do not
suffer from severe mental disorders”).
365. Lois Weithorn, Envisioning Second-Order Change in America’s Responses to Troubled and Troublesome Youth, 33 HOFSTRA L. REV.
1305, 1380, 1384 (2006) (noting, almost 20 years after her earlier work, supra note 364, that adolescent hospitalization rates have “continued to
surge” despite managed care policies).
366. See generally Elizabeth Farmer et al., Pathways into and through Mental Health Services for Children and Adolescents, 54
PSYCHIATRIC SERV. 60 (2003); Sherry Glied & Alison Evans Cuellar, Trends and Issues in Child and Adolescent Mental Health, 22
HEALTH AFF. 39 (2003). See also Weithorn, supra note 364, at 1311 (“There is a core group of children whose conduct and family
circumstances could satisfy the legal criteria required to trigger the intervention in multiple systems”).
367. Ka Ho Robin Kwok et al., Review: Alternatives to Inpatient Care for Children and Adolescents with Mental Health Disorders, 21 CHILD
& ADOLESCENT MENTAL HEALTH 3 (2016); Scott W. Henggeler et al., Home-Based Multisystemic Therapy as an Alternative to the
Hospitalization of Youths in Psychiatric Crisis: Clinical Outcomes, 38 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1331
(1999); Sonja K. Schoenwald et al., Multisystemic Therapy versus Hospitalization for Crisis Stabilization of Youth: Placement Outcomes 4 Months
Postreferral, 2 MENTAL HEALTH SERVICES RES. 3 (2000); Bertrand Winsberg et al., Home vs. Hospital Care of Children with Behavior
Disorders: A Controlled Investigation, 37 ARCHIVES GEN. PSYCHIATRY 413 (1980).
368. See Rusty Reeves, “Voluntary” Hospitalization of Minors, 28 ANNALS ADOLESCENT PSYCHIATRY 5 (2005) (noting that
adolescents are hospitalized with conduct disorder diagnoses ostensibly, but not necessarily accurately, on a “voluntary” basis); Weithorn, supra
note 364, at 1380.
369. Michael Lundy & Andres Pumariega, Psychiatric Hospitalization of Children: Treatment in Search of a Rationale, 2 J. CHILD &
FAMILY STUDIES 1 (1994).
370. See Perlin, supra note 101, at 156–60.
371. 445 U.S. 480 (1980).
372. Id. at 568–70.
373. Id. at 567–70.
374. See, e.g., Michael Churgin, The Transfer of Inmates to Mental Health Facilities: Developments in the Law, in MENTALLY
DISORDERED OFFENDERS: PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 207, 219–23 (John Monahan & Henry
Steadman eds., 1983).
375. ABA, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS, std. 7-10.3(b) (2d ed. 2016) [hereinafter ABA
STANDARDS].
376. Id., std. 7-10.3(a).
377. See Churgin, supra note 374, at 226–27. The Supreme Court has made clear that neither transfer to another prison nor confinement in
any particular section of a prison gives rise to procedural due process protections. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983).
378. Gay v. Turner, 994 F.2d 425, 427 (8th Cir. 1993) (per curiam).
379. Compare Burchett v. Bower, 355 F. Supp. 1278 (D. Ariz. 1973) (right to hearing), with Cruz v. Ward, 558 F.2d 658 (2d Cir. 1977) (no
right to hearing). The ABA Standards provide for due process in this setting. ABA STANDARDS, supra note 375, std. 7-10.6.
380. ABA STANDARDS, supra note 375, std. 7-10.1.
381. See Estelle v. Gamble, 429 U.S. 97 (1976).
382. PAULA DITTON, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: MENTAL HEALTH AND TREATMENT
OF INMATES AND PROBATIONERS (1999). One national survey showed that only a third of prison inmates reporting mental problems
had received treatment; among jail inmates, less than a fifth of inmates with reported problems had received treatment. BUREAU OF
JUSTICE STATISTICS, MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES 8 (Report No. NCJ 213600, Sept.
2006), available at https://www.bjs.gov/index.cfm?ty=pbdetail&iid=789. About one-half of incarcerated individuals report symptoms of mental
illness. Id. at 3. Studies from the last three decades suggest that 9–20% of incarcerated persons have serious mental illnesses (e.g., psychoses,
depression, and bipolar disorder). Charles L. Scott & Brian Falls, Mental Illness Management in Corrections, in OXFORD TEXTBOOK OF
CORRECTIONAL PSYCHIATRY 8 (Robert L. Trestman et al. eds., 2015).
383. For a discussion of the impact of incarceration on prisoners and the prevalence and demographics of mental illness among inmates, see
DITTON, supra note 382, at 8–10.
384. Reena Kapoor, Crisis Assessment and Management, in OXFORD TEXTBOOK OF CORRECTIONAL PSYCHIATRY 131, 133
(Robert L. Trestman et al. eds., 2015).

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 385. Id. at 131–32.
386. Michael A. Norko et al., Hospitalization, in OXFORD TEXTBOOK OF CORRECTIONAL PSYCHIATRY 141, 144 (Robert L.
Trestman et al. eds., 2015).
387. William H. Snow & Katharine Briar, The Convergence of the Mentally Disordered and the Jail Population, 15 J. OFFENDER
COUNSELING SERVICES & REHABILITATION 147 (1990). In a study estimating that one in six recently jailed male inmates and one
in three recently jailed female inmates had serious mental illnesses, the author commented, “There is broad consensus that jails are not the
optimal settings to provide acute psychiatric treatment.” Henry J. Steadman, Prevalence of Serious Mental Illness among Jail Inmates, 60
PSYCHIATRIC SERV. 761, 765 (2009).
Recognizing that huge numbers of individuals with mental illnesses and substance use disorders are arrested on minor charges, locales
throughout the United States have developed programs to divert individuals away from the criminal justice system prior to or shortly after
booking. For a recent review (including data on the rates of mental illnesses seen in jails), see Center for Health and Justice at TASC, No Entry:
A National Survey of Criminal Justice Diversion Programs and Initiatives (2013), available at
http://www2.centerforhealthandjustice.org/sites/www2.centerforhealthandjustice.org/files/publications/CHJ%20Diversion%20Report_web.pdf.
The Council of State Governments operates a website that includes a frequently updated bibliography of articles on various pre- and
postbooking diversion programs, available at http://www.consensusproject.org.
388. The ABA Standards provide for a special administrative procedure in this context. See ABA STANDARDS, supra note 375, std. 7-2.6
(permitting commitment if “an administrative panel composed of the treating professional and another qualified treatment professional find that
the detainee is experiencing extreme emotional distress or deterioration of functioning that requires immediate treatment in the detention or
holding facility or in a treatment facility and that the purpose of treatment is likely to stabilize the detainee’s condition, is the least intrusive
method of doing so, and is medically appropriate”).
389. Because of the high prevalence of mental illnesses in jail populations, treatment often focuses on the prevention of suicide and
assessment issues. There have been a number of efforts to provide guidance on providing treatment in jails, including AM. PSYCHIATRIC
ASS’N, PSYCHIATRIC SERVICES IN CORRECTIONAL FACILITIES (3d ed. 2016); and NAT’L COMM’N ON
CORRECTIONAL HEALTH CARE, STANDARDS FOR MENTAL HEALTH SERVICES IN CORRECTIONAL FACILITIES
(2015). For an example of an instrument designed to provide a brief assessment tool in jails, see Henry Steadman et al., Validation of the Brief
Jail Mental Health Screen, 56 PSYCHIATRIC SERV. 816 (2005).
390. Jail personnel must focus on maintaining order and assuring the staff’s and inmates’ safety. Mental health staff members have a primary
focus on providing treatment. For a discussion of these sometimes conflicting interests and recommendations for reconciling them, see Kenneth
L. Appelbaum, The Mental Health Professional in a Correctional Culture, in HANDBOOK OF CORRECTIONAL MENTAL HEALTH
91 (Charles L. Scott ed., 2d ed. 2005).
391. JOHN PARRY, CRIMINAL MENTAL HEALTH AND DISABILITY LAW, EVIDENCE AND TESTIMONY 171 (2009).
For examples, see GA. STAT. ANN. § 17-7-131 (2016) (30-day initial commitment); VA. CODE ANN. § 19.2-182.2 (up to 45 days);
MICH. COMP. LAWS § 330.2050 (2016) (60-day initial commitment). Ohio requires an initial hearing after ten days, but otherwise its
statutory provisions are similar. See OHIO REV. CODE ANN. §§ 2945.40–2945.402 (2016).
392. PARRY, supra note 391, at 171.
393. See, e.g., GA. STAT. ANN. § 17-7-131(e)(1) (2016) (stating explicitly that the criteria are the same).
394. Addington v. Texas, 441 U.S. 418 (1979).
395. Grant Morris, Acquittal by Reason of Insanity: Developments in the Law, in MENTALLY DISORDERED OFFENDERS:
PERSPECTIVES FROM LAW AND SOCIAL SCIENCE 65, 69 (John Monahan & Henry J. Steadman eds., 1983). The ABA would
place the burden on the state by clear and convincing evidence, as in civil commitment. ABA STANDARDS, supra note 375, std. 7-7.4(b).
396. W. Neil Gowensmith et al., Decision-Making in Post-Acquittal Hospital Release: How Do Forensic Evaluators Make Their Decisions?, 32
BEHAV. SCI. & L. 596 (2014); Barbara E. McDermott et al., The Conditional Release of Insanity Acquittees: Three Decades of Decision-
Making, 36 J. AM. ACAD. PSYCHIATRY & L. 329 (2008); Lisa Callahan & Eric Silver, Factors Associated with the Conditional Release of
Persons Acquitted by Reason of Insanity: A Decision Tree Approach, 22 LAW & HUM. BEHAV. 147 (1998); Donald Linhorst, The
Unconditional Release of Mentally Ill Offenders from Indefinite Commitment: A Study of Missouri Insanity Acquittees, 27 J. AM. ACAD.
PSYCHIATRY & L. 563 (1999); Gina M. Manguno-Mire et al., Are Release Recommendations for NGRI Acquittees Informed by Relevant
Data?, 25 BEHAV. SCI. & L. 43 (2007). Similar findings obtain in Canada: Catherine M. Wilson et al., Factors Associated with Review Board
Dispositions following Re-Hospitalization among Discharged Persons found Not Criminally Responsible, 34 BEHAV. SCI. & L. 278 (2016).
397. See, e.g., GA. STAT. ANN. § 17-7-131(d) (2016), OHIO REV. CODE ANN. § 2945.401(A) (2016).
398. In re Franklin, 496 P.2d 465, 471 & n.6 (Cal. 1972); Chase v. Kearns, 278 A.2d 132, 134 (Me. 1971); In re Lewis, 403 A.2d 1115,
1117 (Del. 1979).
399. In some jurisdictions, insanity acquittals occur most frequently in cases involving property crimes. See Michele Schaefer & Joseph

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Bloom, The Use of the Insanity Defense as a Jail Diversion Mechanism for Mentally Ill Persons Charged with Misdemeanors, 33 J. AM. ACAD.
PSYCHIATRY & L. 79 (2005) (suggesting that the defense is used to divert misdemeanants); Maureen Barnes et al., Characteristics of
Criminal Defendants Referred for Psychiatric Evaluation, 29 N.Z. J. PSYCHOL. 121 (2000) (more than one-third of acquittees were charged
with property offenses).
400. In such jurisdictions, a reasonable doubt as to sanity cannot be said to imply clear and convincing evidence of mental illness, even at the
time of the offense.
401. 463 U.S. 354 (1983). For critiques of Jones, see Donald Hermann, Automatic Commitment and Release of Insanity Acquittees:
Constitutional Dimensions, 14 RUTGERS L.J. 667 (1983); James Ellis, The Consequences of the Insanity Defense: Proposals to Reform Post-
Acquittal Commitment Law, 35 CATH. U. L. REV. 961 (1986).
402. 463 U.S. at 364.
403. Id. at 366.
404. Id. at 368. The ABA would limit the length of criminal commitment to the maximum term the individual would have received had he
or she been convicted. ABA STANDARDS, supra note 375, std. 7-7.7. The acquittee may petition for release periodically; at these hearings,
the state would bear the burden of proof. Id., std. 7-7.8.
405. 504 U.S. 71 (1992).
406. 521 U.S. 346, 366 (1997) (“While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, we have
never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a
danger to others”). Although Hendricks addressed the constitutionality of a sexual predator statute [see § 9.04(b)], its rationale seems applicable
to insanity acquittees as well. Even if Hendricks does not apply and Foucha is construed to require both “serious” mental illness and
dangerousness for commitment, if a diagnosis can be characterized as a mental disorder separate from a dangerousness finding (which is true
even of the antisocial personality diagnosis at issue in Foucha), then proof of that diagnosis plus dangerousness could well satisfy Foucha.
407. Stuart B. Silver et al., Follow-Up after Release of Insanity Acquittees, Mentally Disordered Offenders, and Convicted Felons, 17 BULL.
AM. ACAD. PSYCHIATRY & L. 387 (1989) (insanity acquittees had a statistically significantly lower rate of criminal recidivism than
released felons or mentally disordered prisoners); Marnie E. Rice et al., Recidivism among Male Insanity Acquittees, 18 J. PSYCHIATRY & L.
379 (1990) (recidivism for convicted group was higher than for insanity acquittees).
A related and important point: Studies suggest that general criminogenic traits—not psychiatric diagnoses or symptoms—are the best
predictors of post-release recidivism among insanity acquittees. See Jillian K. Peterson et al., How Often and How Consistently Do Symptoms
Directly Precede Criminal Behavior among Offenders with Mental Illness?, 38 LAW & HUM. BEHAV. 439, 441 (2014) (summarizing studies).
408. See BRAKEL ET AL., supra note 269, Table 205.
409. 509 U.S. 312 (1993).
410. The Court also justified this holding by asserting that the extent of disability and dangerousness is easier to diagnose for people with
intellectual disabilities than for people with mental illness. Even if this were true, this reasoning directly contradicts the Court’s reasoning in
Addington v. Texas [see § 10.02(c)], where the Court justified a lower standard of proof for commitment because of the difficulty of making
psychiatric judgments.
411. See Christopher Slobogin, What Atkins Could Mean for People with Mental Illness, 33 N.M. L. REV. 293, 298–303 (2003) (explaining
how equal protection jurisprudence applies to people with mental disability, and arguing that Heller may be justifiable under that jurisprudence).
412. Douglas Mossman, Atkins v. Virginia: A Psychiatric Can of Worms, 33 N.M. L. REV. 255, 265–269 (2003). For a discussion of this
issue in death penalty litigation, see SCOTT VOLLUM ET AL., THE DEATH PENALTY: CONSTITUTIONAL ISSUES,
COMMENTARIES, AND CASE BRIEFS 79–86 (2014).
413. See generally James W. Ellis, Decisions by and for People with Mental Retardation: Balancing Considerations of Autonomy and
Protection, 37 VILL. L. REV. 1779 (1992); Bryan Y. Lee, The U.N. Convention on the Rights of Persons with Disabilities and Its Impact upon
Involuntary Civil Commitment of Individuals with Developmental Disabilities, 44 COLUM. J. L. & SOC. PROBS. 393 (2010).
414. FLA. STAT. § 393.063(24).
415. DSM-5, supra note 115, at 33.
416. FLA. STAT. § 393.11(8)(b)(3).
417. FLA. STAT. § 393.11(8)(b)(2).
418. FLA. STAT. § 393.11(7).
419. See FLA. STAT. § 394.467(1)(a)(2.b.), which requires showing a “substantial likelihood that in the near future” the respondent “will
inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm.”
420. See, e.g., United States v. Shorter, 343 A.2d 569, 571–72 (D.C. 1975).
421. James Ellis & Ruth Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 466–70 (1985).
422. ABA STANDARDS, supra note 375, stds. 7-7.4(b), 7-7.8.

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 423. Ellen E. Bouchery et al., Economic Costs of Excessive Alcohol Consumption in the U.S., 2006, 41 AM. J. PREVENTIVE MED. 516
(2011) (economic cost of excessive drinking estimated to be $223.5 billion).
424. Guiherme Borges et al., Associations of Substance Use, Abuse, and Dependence with Subsequent Suicidal Behavior, 151 AM. J.
EPIDEMIOLOGY 781 (2000).
425. Eric B. Elbogen & Sally C. Johnson, The Intricate Link between Violence and Mental Disorder: Results from the National Epidemiologic
Survey on Alcohol and Related Conditions, 66 ARCHIVES GEN. PSYCHIATRY 152 (2009). But see Thomas E. Feucht & Joseph Gfroerer,
Mental and Substance Use Disorders among Adult Men on Probation or Parole: Some Success against a Persistent Challenge (SAMHSA Data
Review, Document No. NCJ 235637, May 2011) (noting some reduction in rates of disorders).
426. Paul P. Christopher et al., Nature and Utilization of Civil Commitment for Substance Abuse in the United States, 43 J. AM. ACAD.
PSYCHIATRY & L. 313, 315 (2015)
427. Id.
428. COLO. REV. STAT. § 27-81-112(1) (2016).
429. TEX. HEALTH & SAFETY CODE § 462.001(3).
430. Christopher et al., supra note 426, at 317.
431. Id.
432. See PINALS & MOSSMAN, supra note 75, at 55. On the other hand, a number of states include substance use disorders within their
mental health commitment statutes. Id. at 56–57 (providing examples).
433. See, e.g., In re Stokes, 546 A.2d 356 (D.C. 1988); Dudley v. State ex rel. Dudley, 730 S.W.2d 51 (Tex. 1987).
434. WEXLER, supra note 42, at 37–39. For more recent arguments against the use of civil commitment for serious substance use disorders,
see Sana Loue, The Criminalization of the Addictions: Toward a Unified Approach, 24 J. LEGAL MED. 281 (2003).
435. WEXLER, supra note 42, at 42–44.
436. Id. at 39.
437. For a recent summary of scientific advances, see Nora D. Volkow et al., Neurobiologic Advances from the Brain Disease Model of
Addiction, 374 N. ENG. J. MED. 363 (2016).
438. Of particular significance is the often-essential role of medication assisted treatment for opioid-use disorders. See, e.g., James Bell,
Pharmacological Maintenance Treatments of Opiate Addiction, 77 BRIT. J. CLINICAL PHARMACOLOGY 253 (2014). For other types of
treatments for substance abuse, see, e.g., Christian A. Müller et al., Current Pharmacological Treatment Approaches for Alcohol Dependence, 15
EXPERT OPINION PHARMACOTHERAPY 471 (2014); Raye Z. Litten et al., Heterogeneity of Alcohol Use Disorder: Understanding
Mechanisms to Advance Personalized Treatment, 39 ALCOHOL: CLINICAL & EXPERIMENTAL RES. 579 (2015) (treatment rectifying
brain circuitry). The treatments described in the last-cited journal article often try to enhance healthy reward from social contact or exercise so as
to compete with the reinforcement from drugs, to mitigate stress and reactions to negative emotional states, to improve clients’ ability to avoid
situations that make them vulnerable to using drugs, and to reduce likelihood of relapse by helping clients develop new social circles where
friends do not use drugs. Volkow et al., supra note 437, at 368.
439. For a useful summary, see National Council on Alcoholism and Drug Dependence, Alcohol, Drugs and Crime (June 27, 2015), available
at https://www.ncadd.org/about-addiction/alcohol-drugs-and-crime. On the relationships among mental illness, substance use, and violence,
see Eric B. Elbogen et al., Beyond Mental Illness: Targeting Stronger and More Direct Pathways to Violence, 4 CLINICAL PSYCHOL. SCI.
747 (2016).
440. 521 U.S. 346 (1997).

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Chapter 11

1. 1 PRESIDENT’S COMM’N FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND
BEHAVIORAL RESEARCH, MAKING HEALTH CARE DECISIONS 44–45 (1982).
2. Even John Stuart Mill, who generally believed that the power of the government should be strictly curtailed, agreed that these two
exceptions, narrowly defined, were necessary. John Stuart Mill, On Liberty, in THE PHILOSOPHY OF JOHN STUART MILL 196–97
(1961); Mary Ellen Waithe, Why Mill Was for Paternalism, 6 INT’L J.L. & PSYCHIATRY 101 (1983). For an excellent discussion of Mill’s
work in the broader context of public health, see Lawrence O. Gostin & Kieran G. Gostin, A Broader Liberty: JS Mill, Paternalism, and the
Public’s Health, 123 PUB. HEALTH 214 (2009).
3. See, e.g., Loren Roth et al., Tests of Competency to Consent to Treatment, 134 AM. J. PSYCHIATRY 279 (1997); Bruce J. Winick, The
MacArthur Treatment Competence Study: Legal and Therapeutic Implications, 2 PSYCHOL. PUB. POL’Y & L. 137 (1996) (discussing
potential implications of a fluid definition of competence, from the perspective of therapeutic jurisprudence).
4. James F. Drane, The Many Faces of Competency, HASTINGS CENTER REP. 17 (Apr. 1985). This idea is often termed the “sliding-
scale model” of decisional capacity. See MARY DONNELLY, HEALTHCARE DECISION-MAKING AND THE LAW:
AUTONOMY, CAPACITY AND THE LIMITS OF LIBERALISM 105–08 (2010) (citing Drane and other proponents, and offering a
critique).
5. Elyn Saks, Competency to Refuse Treatment, 69 N.C. L. REV. 945, 995 (1991).
6. Id. at 997.
7. The history of guardianship law is reviewed in Erica Wood, History of Guardianship, in GUARDIANSHIP OF ADULTS:
ACHIEVING JUSTICE, AUTONOMY, AND SAFETY 17 (Mary Joy Quinn ed., 2005).
8. See In re Gault, 387 U.S. 1, 16–17 (1967).
9. The Social Security Administration’s review of guardianship laws as of May 2015 can be found at
https://secure.ssa.gov/poms.nsf/lnx/0200502300 (accessed July 18, 2016). For another review, see Sally Balch Hurme, Guardianship Trends in
the United States, in ADULT GUARDIANSHIP LAW FOR THE 21ST CENTURY 85–91 (Makato Arai et al. eds., 2013).
10. Virtually all states distinguish between guardianship (conservatorship) of the estate and guardianship of the person. J. Matt Jameson et
al., Guardianship and the Potential of Supported Decision Making with Individuals with Disabilities, 40 RES. & PRAC. FOR PERSONS
WITH SEVERE DISABILITIES 36 (2015).
11. CAL. WELF. & INST. CODE § 5350.
12. The distinction between plenary and limited guardianships has been long established; for example, Tor and Sales wrote in 1994 that “the
legal distinction between plenary and limited guardianship [is] well entrenched today.” Phillip B. Tor & Bruce D. Sales, A Social Science
Perspective on the Law of Guardianship: Directions for Improving the Process and Practice, 18 PSYCHOL. & L. REV. 1, 26 (1994).
13. For summaries of these reform efforts, see Jennifer Moye et al., Statutory Reform Is Associated with Improved Court Practice: Results of a
Tri-State Comparison, 25 BEHAV. SCI. & L. 425 (2007), and Pamela B. Teaster et al., Wards of the State: A National Study of Public
Guardianship, 37 STETSON L. REV. 195 (2007).
14. For a strong endorsement of using alternatives to guardianship to protect autonomy, see Peter Blanck & Jonathan G. Martinis, “The
Right to Make Choices”: The National Resource Center for Supported Decision-Making, 3 INCLUSION 24 (2015).
15. Lawrence A. Frolik, Promoting Judicial Acceptance and Use of Limited Guardianship, 31 STETSON L. REV. 735 (2002). See also Laura
Gibson, Giving Courts the Information Necessary to Implement Limited Guardianships: Are We There Yet?, 54 J. GERONTOLOGICAL SOC.
WORK 803 (2011).
16. Numerous studies have so found. See infra note 19; Lawrence Friedman & Mark Savage, Taking Care: The Law of Conservatorship in
California, 61 S. CAL. L. REV. 273, 283 (1988); Roger Peters et al., Guardianship of the Elderly in Tallahassee, Florida, 25
GERONTOLOGIST 532, 536 (1985); Lawrence Frolik, Plenary Guardianship: An Analysis, a Critique and a Proposal for Reform, 23 ARIZ.
L. REV. 599, 653 (1981); MELVIN T. AXILBUND, EXERCISING JUDGEMENT FOR THE DISABLED: REPORT OF AN
INQUIRY INTO LIMITED GUARDIANSHIP, PUBLIC GUARDIANSHIP AND PROTECTIVE SERVICES IN SIX STATES
(1979).
17. Tor & Sales, supra note 12, at 27–28.
18. See Neha Patel, The Homeless Mentally Ill and Guardianship: An Assessment of Current Issues in Guardianship and Possible Application to
Homeless Mentally Ill Persons, 11 GEO. J. POVERTY & L. 495, 504–05 (2004) (“courts seem more prone to install a traditional plenary
guardianship instead of issuing a limited order when reports do not detail the reasoning behind the specific incompetencies of the person in
question. Vagueness in statutes on limited guardianships may [also] induce the courts to cling to what they know and choose plenary
guardianships”). A review of available research by Moye in 2002 suggested that limited guardianship was used in fewer than 15% of cases in

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most states, and that statutory reform did little to boost its use. Jennifer Moye, Guardianship and Conservatorship, in THOMAS GRISSO,
EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 309, 317 (2d ed. 2002) [hereinafter
EVALUATING COMPETENCIES]. Five years later, Moye and her colleagues found that statutory reforms that are focused on improved
process and better attention to alternatives improved court practice in Colorado, but not in Massachusetts or Pennsylvania. Jennifer Moye et al.,
Clinical Evidence in Guardianship of Older Adults is Inadequate: Finding from a Tri-State Study, 47 GERONTOLOGIST 604, 611 (2007).
19. Ryan D. McMahan et al., Advance Care Planning Beyond Advance Directives: Perspectives from Patients and Surrogates, 46 J. PAIN &
SYMPTOM MGMT. 355 (2013); Jeffrey W. Swanson et al., Psychiatric Advance Directives: An Alternative to Coercive Treatment?, 63
PSYCHIATRY 160 (2000). Note, however that the incapacity and impoverished resources of some wards may limit the availability of these
options. JOHN PETRILA & JEFFREY SWANSON, MENTAL ILLNESS, LAW, AND A PUBLIC HEALTH LAW RESEARCH
AGENDA 34–45 (2010).
20. Leslie Salzman, Guardianship for Persons with Mental Illness—A Legal and Appropriate Alternative?, 4 ST. LOUIS U. J. HEALTH L.
& POL’Y 279, 306–308 (2011).
21. Id. at 314.
22. See Nina Santo, Comment, Breaking the Silence: Strategies for Combating Elder Abuse in California, 31 MCGEORGE L. REV. 801
(2000); Susan Lehman, Adult Protective Services in 2002, 25 WYO. LAWYER 33 (2002); Molly Dickinson Velick, Mandatory Reporting
Statutes: A Necessary yet Underutilized Response to Elder Abuse, 3 ELDER L. J. 165 (1995).
23. See generally CHILDREN’S COMPETENCE TO CONSENT (Gary B. Melton et al. eds., 1983) [hereinafter CHILDREN’S
COMPETENCE]; Gary B. Melton, Toward “Personhood” for Adolescents: Autonomy and Privacy as Values in Public Policy, 38 AM.
PSYCHOLOGIST 99 (1983).
24. For example, minors generally are unable to enter contracts, except for “necessaries.” See, e.g., 14 CAL. JURISPRUDENCE 3d, § 42
(2016).
25. Irma M. Hein et al., Why Is It Hard to Make Progress in Assessing Children’s Decision-Making Competence?, 16 BMC MED. ETHICS 1
(2015).
26. Some states have enacted provisions providing for minors’ independent consent to treatment. See NAT’L DISTRICT ATTORNEY
ASS’N, MINOR CONSENT TO MEDICAL TREATMENT LAWS (2013). See also Ann McNary, Consent to Treatment of Minors, 11
INNOVATIONS CLINICAL NEUROSCI. 43 (2014).
27. At common law, a special showing that the minor was “mature” was required before he or she was permitted to exercise self-
determination. See Walter Wadlington, Minors and Health Care: The Age of Consent, 73 OSGOODE HALL L.J. 115 (1973). However,
comparatively few states formally recognize the “mature-minor” rule, with one article suggesting that it is law in only approximately one-fifth of
the states. Dorane Lambelet Coleman & Philip M. Rosoff, The Legal Authority of Mature Minors to Consent to General Medical Treatment, 131
PEDIATRICS 786 (2013). The mature-minor rule has had its most controversial application in abortion law. See Guttmacher Institute, State
Policies in Brief: Parental Involvement in Minors’ Abortions (Mar. 1, 2016), available at
https://www.guttmacher.org/sites/default/files/pdfs/spibs/spib_PIMA.pdf.
28. Some have argued that given their ability to make certain types of decisions, adolescents should not always be subject to plenary
guardianship; rather, they should be given limited decisionmaking authority, similar to the specific-guardianship scheme applicable to adults
who have mental problems. See Martin T. Harvey, Adolescent Competency and the Refusal of Medical Treatment, 13 HEALTH MATRIX 297
(2003) (arguing for a “sliding scale” of competence for adolescents, based on the therapeutic benefit of the treatment proposed). For somewhat
different perspectives, each of which suggests the complexity of the issue, see Rhonda Gay Hartman, Adolescent Autonomy: Clarifying an
Ageless Conundrum, 51 HASTINGS L.J. 1265 (2000); Stephanie A. Zevala, Defending Parental Involvement and the Presumption of
Immaturity in Minors’ Decisions to Abort, 72 S. CAL. L. REV. 1725 (1999).
29. BRUCE D. SALES ET AL., DISABLED PERSONS AND THE LAW: STATE LEGISLATIVE ISSUES 464 (1982).
30. See, e.g., Parham v. J.R., 442 U.S. 182 (1979). But see WALTER WADLINGTON ET AL., CHILDREN IN THE LEGAL
SYSTEM 182 (1983) (noting that assumptions about the “natural bonds of affection” in Blackstone and Kent refer to the treatment of
bastards). For a recent discussion of the complexities that application of the “iconic” phrase “best interest of the child” entails, including factors
influencing parental decisionmaking based on this standard, see June Carbone, Legal Applications of the “Best Interest of the Child” Standard:
Judicial Rationalization or a Measure of Institutional Competence? 134 PEDIATRICS S112 (2014 supp. 2).
31. See SALES ET AL., supra note 29, at 13–14; B. ENNIS & L. SIEGEL, THE RIGHTS OF MENTAL PATIENTS: THE BASIC
ACLU GUIDE TO MENTAL PATIENTS’ RIGHTS 74–77 (1973).
32. Jennifer Fischer, A Comparative Look at the Right to Refuse Treatment for Involuntarily Hospitalized Persons with a Mental Illness, 29
HASTINGS INT’L & COMP. L. REV. 153, 167 (2008).
33. SALES ET AL., supra note 29, at 463.
34. Nina A. Kohn & Catheryn Ross, Lawyers for Legal Ghosts: The Legality and Ethics of Representing Persons Subject to Guardianship, 91

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WASH. U. L. REV. 581 (2016) (noting that guardian abuse of wards is not uncommon even after years of efforts at reform).
35. Jennifer Wright, Making Mediation Work in Guardianship Proceedings: Protecting and Enhancing the Voice, Rights, and Well-Being of
Elders, 8 J. INT’L AGING L. & POL’Y (2015) (recounting recent reports by federal and state agencies showing continuing problems with
guardianship proceedings in the United States).
36. See, e.g., Guardianship of Roe, 383 Mass. 45, 421 N.E.2d 40 (1981), in which the court justified a rejection of the clear and convincing
standard of proof used in civil commitment in favor of the lower preponderance standard with the following language: “We do not feel that
more harm will befall an individual who is erroneously subjected to guardianship than to an individual who is in need of a guardian but is
erroneously denied one. If an individual is erroneously subjected to a guardianship, then [state law] allows such a ward to file a petition for the
removal of his guardian.” Id. at 47. The latter statement is disingenuous at best, in light of the evidence that wards seldom make such petitions.
See infra notes 40–44 and accompanying text. The court also concluded, in somewhat circular reasoning, that counsel was not needed because
the rules of evidence did not apply at guardianship proceedings and because mandatory appointment of counsel would dissipate the ward’s
assets. See also Rud v. Dahl, 4578 F.2d 674, 679 (7th Cir. 1978) (holding that counsel is not required at guardianship proceedings because “the
nature of the intrusion on liberty interests from an adjudication of incompetency is far less than the intrusion resulting from other types of
proceedings in which the presence of counsel has been mandated”).
37. For a listing of notice, counsel, jury and other provisions in the guardianship statutes of all 50 states as of 2015, see Am. Bar Ass’n
(ABA), Charts: Guardianship Law and Practice, available at
https://www.americanbar.org/content/dam/aba/administrative/law_aging/chartrepresentationandinvestigation.authcheckdam.pdf and
https://www.americanbar.org/content/dam/aba/administrative/law_aging/chartconduct.authcheckdam.pdf. The fact that many state courts have
only recently recognized a right to counsel in such proceedings is indicative of the lax nature of the process. See, e.g., State ex rel. McQueen v.
Court of Common Pleas Cuyahoga County, 135 Ohio St. 3d 291 (2013) (recognizing right to counsel at proceedings to continue guardianship);
Guardianship of V.V., 470 Mass. 590 (2015) (holding that indigent parents have a right to counsel in guardianship-of-a-minor proceedings).
38. Alison Barnes, The Liberty and Property of Elders: Guardianship and Will Contests as the Same Claim, 11 ELDER L.J. 1, 9–10 (2003).
39. U.S. GOV’T ACCOUNTABILITY OFFICE (GAO), GUARDIANSHIPS: COLLABORATION NEEDED TO PROTECT
INCAPACITATED PERSONS (2004).
40. Id. at 2–4. Federal law provides that the Social Security Administration may appoint, through the administrative rather than the judicial
process, a “representative payee” for an individual who lacks the capacity to handle money. For discussions of the potential misuse of funds by
representative payees (which in some circumstances may be a state agency), see Keffeler v. Department of Social and Health Services: How the
Supreme Court of Washington Mistook Caring for Children as Robbing Them Blind, 77 WASH. L. REV. 877 (2002); Jim Moye, Get Your
Hands Out of Their Pockets: The Case against State Seizure of Foster Children’s Social Security Benefits, 10 GEO. J. POVERTY L. & POL’Y 67
(2003).
41. For a compilation of restoration statutes in all 50 states as of 2013, see ABA, Restoration in Adult Guardianship Statutes, available at
https://www.americanbar.org/content/dam/aba/administrative/law_aging/chartmonitoring.authcheckdam.pdf.
42. See also GAO, supra note 39, at 2; Barnes, supra note 38, at 10.
43. Barnes, supra note 38, at 10.
44. For a 50-state review as of 2015, see ABA, Chart: Capacity Definition and Initiation of Guardianship Proceedings, available at
http://www.americanbar.org/content/dam/aba/administrative/law_aging/chartcapacityandinitiation.authcheckdam.pdf; see also Peter Mosanyi
II, A Survey of State Guardianship Statutes: One Concept, Many Applications, 18 J. AM. ACAD. MATRIMONIAL L. 253 (2002).
45. George Alexander, Premature Probate: A Different Perspective on Guardianship for the Elderly, 31 STAN. L. REV. 1003, 1015–16
(1979).
46. NAT’L CONF. OF COMM’RS ON UNIFORM STATE LAW, UNIFORM PROBATE CODE § 5 (4th ed. 1975). These
suggested guidelines have been revised several times, most recently in 2008.
47. In re Boyer, 636 P.2d 1085, 1089 (Utah 1981). Arizona and Iowa courts have followed Boyer’s line of reasoning here. In re Kelly, 910
P.2d 665, 669 (Ariz. Ct. App. 1996); In re Hedin, 528 N.W.2d 567, 573 (Iowa 1995).
48. See statutes cited in ABA, Chart, supra note 44.
49. CAL. WELF. & INST. CODE § 5350.
50. N.H. REV. STAT. § 464-A:2. VII
51. For a general argument that state guardianship laws are routinely applied in ways that violate individual rights, and for a discussion of the
history of guardianship and efforts at reform, see A. Frank Johns & Vickie Joiner Bowers, Guardianship Folly: The Misgovernment of Parens
Patriae and the Forecast of its Crumbling Linkage to Unprotected Older Americans in the Twenty-First Century: A March of Folly? Or Just a Mask
of Virtual Reality? 27 STETSON L. REV. 1 (1997). One commentator suggests that guardianships (at least as applied in many cases) may also
violate the “integration mandate” of the Americans with Disabilities Act by imposing more restrictions on individual liberty than are warranted.
Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the

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Americans with Disabilities Act, 81 U. COLO. L. REV. 157 (2010).
52. In re Oltmer, 336 N.W.2d 560 (Neb. 1983).
53. Id. at 562 (Krivosha, C.J., dissenting).
54. Plumer v. Early, 190 Cal. Rptr. 578 (3d Dist. 1983).
55. A 2016 newspaper story in the Palm Beach Post noted that the number of registered professional guardians in Florida had increased from
108 in 2003 to 457 in 2015, and that this “big business” resulted in exorbitant fees charged against these estates, as well as fraud in a number of
cases. John Pacenti, Solution to Guardianship Crisis?: Advocates Say Cap Fees, PALM BEACH POST, Jan. 24, 2016, available at
http://www.mypalmbeachpost.com/lifestyles/health/solution-guardianship-crisis-advocates-say-cap-fees/V5Eae9AYrExSa6OX2DYa7N/.
56. See ABA, Chart, Representation and Investigation of Guardianship Proceedings, available at
http://www.americanbar.org/content/dam/aba/administrative/law_aging/chartrepresentationandinvestigation.authcheckdam.pdf (indicating
that as of 2015, many states do not require evaluations, although court usually must provide one if demanded by a petitioner or ward). In those
states that do, examination is often supposed to be conducted by a physician, although in some states a psychologist or a multidisciplinary team
may conduct it. Id.
57. Id.
58. Moye, supra note 40, at 313.
59. See Associated Press Special Report, Guardians of the Elderly: An Ailing System, L.A. TIMES, Sept. 27, 1987, at 2, 20, 28 (noting that
only in two out of three randomly sampled files was there evidence of specific deficits). This study also found, among other things, that most
states do not provide specific notice of the proceedings, do not provide counsel, do not require that the respondent be present, and do not file
annual reports mandated by statutes; however, given its age, the study does not reflect current practice in all of these respects, as indicated in the
text.
60. Kingshuk K. Roy, Sleeping Watchdogs of Personal Liberty: State Laws Disenfranchising the Elderly, 11 ELDER L.J. 109, 114 (2003). See
also Fran Baker, Assessing Competency in the Elderly, in GUARDIANSHIP OF THE ELDERLY: PSYCHIATRIC AND JUDICIAL
ASPECTS 160 (George H. Zimny & George Grossberg eds., 1998).
61. Center for Reducing Risks in Vulnerable Populations, Instrument Bank Table Current to June 29, 2009, available at
http://www.nursing.uic.edu/sites/default/files/Alphabetical_Variable_Listing.pdf.
62. Felicia Skelton et al., Determining If an Older Adult Can Make and Execute Decisions to Live Safely at Home: A Capacity Assessment and
Intervention Model, 50 ARCHIVES GERONTOLOGY & GERIATRICS 300, 300–01 (2010).
63. KY. REV. STAT. ANN. § 387.540 (West 2006); N.C. GEN. STAT. § 35A-1202(13) (2011). This idea is more than three decades old.
Thomas L. Hafemeister & Bruce D. Sales, Interdisciplinary Evaluations for Guardianships and Conservatorships, 8 LAW & HUM. BEHAV.
335 (1984). For a discussion of the interdisciplinary approach in the context of national guardianship initiatives, see Carolyn L. Dessin et al.,
Creating and Sustaining Interdisciplinary Guardianship Committees, 2012 UTAH L. REV. 1667, 1686–88 (2012).
64. Moye, supra note 40, at 323.
65. Mossman and Farrell describe additional limitations common among older persons, along with accommodations to make sure assessment
measures true capacity rather than the impact of the evaluation environment. Douglas Mossman & Helen M. Farrell, Civil Competencies, in 1
APA HANDBOOK OF FORENSIC PSYCHOLOGY 533, 552 (Brian L. Cutler & Patricia A. Zapf eds., 2015).
66. Moye, supra note 40, at 327.
67. For a discussion of a few of these and their supporting research, see Mossman & Farrell, supra note 65, at 549–51.
68. David A. Loewenstein et al., A New Scale for the Assessment of Functional Status in Alzheimer’s Disease and Related Disorders, 44 J.
GERONTOLOGY 114 (1989).
69. Graham J. McDougall et al., The Revised Direct Assessment of Functional Status for Independent Older Adults, 50 GERONTOLOGIST
363 (2010).
70. James M. Lai et al., Everyday Decision-Making Ability in Older Persons with Cognitive Impairment, 16 AM. J. GERIATRIC
PSYCHIATRY 693 (2008).
71. Id. at 694.
72. Paul S. Appelbaum & Thomas Grisso, Assessing Patients’ Capacities to Consent to Treatment, 319 NEW ENG. J. MED. 1635 (1988).
73. Mossman & Farrell, supra note 65, at 551.
74. Examples of these broadly accepted instruments include Marshall F. Folstein et al., Mini-Mental State: A Practical Method for Grading
the Cognitive State of Patients for the Clinician, 12 J. PSYCHIATRIC RES. 189 (1975), and Ziad S. Nasreddine et al., The Montreal Cognitive
Assessment (MoCA): A Brief Screening Tool for Mild Cognitive Impairment, 53 J. AM. GERIATRICS SOC’Y 695 (2005).
75. Mossman & Farrell, supra note 65, at 551.
76. See Mary Joy Quin & Howard S. Krooks, The Relationship between the Guardian and the Court, 2012 UTAH L. REV. 1611, 1612
(describing alternatives and noting that about 70% of guardians are family members).

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 77. PAMELA B. TEASTER ET AL., WARDS OF THE STATE: A NATIONAL STUDY OF PUBLIC GUARDIANSHIP (2005).
78. Frolik, supra note 16, at 646–49.
79. Consider, for example, the circumstance in which a wealthy elderly man takes a young woman as his paramour and wills most of his
estate to her. For a more detailed analysis of family versus “professional” guardians, see Alison Barnes, The Virtues of Corporate and Professional
Guardians, 31 STETSON L. REV. 941 (2002).
80. See Robert Wettstein & Loren Roth, The Psychiatrist as Legal Guardian, 145 AM. J. PSYCHIATRY 600 (1988).
81. See, e.g., Rogers v. Comm’r, Dep’t of Mental Health, 390 Mass. 489 (1983); In re Roe, 421 N.E.2d 40 (Mass. 1981); Saikewicz v.
Superintendent of Belchertown State Hosp., 370 N.E.2d 417 (Mass. 1977); In re Grady, 426 (N.J. 1981); In re Quinlan, 335 A.2d 647 (N.J.
1976), cert. denied, 429 U.S. 922 (1976).
82. What could be called a third model involves having a court, rather than the guardian, apply one of these two tests. For instance, court
permission is usually required for “extraordinary” interventions, such as sterilization. See, e.g., In re Hayes, 93 Wash. 228, 608 P.2d 635 (1980).
Courts are divided, however, as to whether hospitalization is an “extraordinary” intervention. Compare, e.g., Von Luce v. Rankin, 588 S.W.2d
445 (Ark. 1979) (prohibiting a guardian from “volunteering in” a ward, at least if the ward protests), with Parham v. J.R., 442 U.S. 584 (1979)
(permitting parents or state agency to “volunteer in” a child, at least if a mental health professional finds the child to be in need of treatment).
83. 497 U.S. 261 (1990).
84. For mental health treatment, see, e.g., In re Jeffers, 606 N.E.2d 727 (Ill. Ct. App. 1992) (rejecting the substituted-judgment test in the
context of a guardian’s consent to medicating the ward, because “the incompetency of an incompetent person in a vegetative state does not lead
him to pose a danger to himself or others while the incompetency of the mental health incompetent does[;] . . . the choices involved in the
present case hold far less drastic consequences than the choices of a guardian on behalf of a person in a vegetative state[;] and . . . a person who
suffers from mental incompetency might never have had the competency to make a reasoned decision regarding medication, as opposed to a
person who lives in a vegetative coma”); In re Guardianship of L.W., 482 N.W.2d 60 (Wis. 1992). For discussions of guardianship in child
abuse cases, see Mary Grams, Guardians ad Litem and the Cycle of Domestic Violence: How the Recommendations Turn, 22 LAW &
INEQUALITY 105 (2004); Brian E. Jones, Guardians ad Litem: Minnesota’s Response to the Growing Dissatisfaction with a “Friend,” 17
HAMLINE J. PUB. L. & POL’Y 427 (1996).
85. See ABA, Chart: Health Care Decision-Making Authority: What Is the Decision-Making Standard?, available at
http://www.americanbar.org/content/dam/aba/administrative/law_aging/What_is_the_Decision_Making_Standard.authcheckdam.pdf
(indicating that as of 2015, most states require the guardian to apply the best-interests standard, but that 12 states—Alabama, Alaska, Arkansas,
Michigan, Mississippi, Montana, New Hampshire, North Carolina, Oklahoma, Tennessee, Texas, and Wyoming—do not state an explicit
standard). Cf. In re Hayes, 93 Wash. 228, 608 P.2d 635 (1980), and In re Grady, 85 N.J. 235, 426 A.2d 467 (1981). See also Diane Somberg,
Defining the Role of the Law Guardian in New York State by Statute, Standards, and Case Law, 19 TOURO L. REV. 529 (2002).
86. For example, an individual may have a personal preference to avoid particular kinds of side effects (e.g., loss of hair), even if it means
enduring other consequences that most people would find more noxious.
87. The classic example: Saikewicz v. Superintendent of Belchertown State Hosp., 370 N.E.2d 417 (Mass. 1977), a case in which the court
tried to discern the subjective wishes of a man with a lifelong, severe intellectual disability.
88. Charles P. Sabatino, The Evolution of Health Care Advance Planning Law and Policy, 88 MILBANK Q. 211 (2010). Sabatino provides
an excellent overview of the development of advance planning for health care, including a historical perspective, as well as the status of state laws
on various matters (do-not-resuscitate orders, advance directives, etc.).
89. The Patient Self-Determination Act was enacted as part of the Omnibus Reconciliation Act of 1990, Pub. L. No. 101-508, 4206, 2751,
104 Stat. 1388 (1990). For a recent description and description of its success and limitations, see Cynda Hylton Rushton et al., Twenty Years
since Cruzan and the Patient Self-Determination Act: Opportunities for Improving Care at the End of Life in Critical Care Settings, 23 AACN
ADVANCED CRITICAL CARE 99 (2012).
90. Maria J. Silveira et al., Advance Directives and Outcomes of Surrogate Decision Making before Death, 362 N. ENG. J. MED. 1211 (2010).
91. See generally Judith Areen, The Legal Status of Consent Obtained from Families of Adult Patients to Withhold or Withdraw Treatment,
258 JAMA 229 (1987).
92. A durable power of attorney is to be distinguished from a traditional power of attorney, which does not survive the incapacity of the
principal.
93. A 2005 study highlighted difficulties in getting patients to complete advance directives; even with an interview and education about the
benefits of advance directives, completion rates among a convenience sample of hospital patients only increased from 18% to 26%. Susan
Salmond & David Estrella, Attitudes toward Advance Directives and Advance Directive Completion Rates, 2 ORTHOPAEDIC NURSING
117 (2005). Yet some recent studies suggest rates of completion as high as 70%. Silveira et al., supra note 90, at 1211–12.
94. FLA. STAT. §§ 765.101-765.113
95. See Justine A. Dunlap, Mental Health Advance Directions: Having One’s Say?, 89 KY. L. REV. 327, 370–71 (2001) (describing various

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state approaches to advance directives for mental health care).
96. 497 U.S. 261 (1990).
97. For a frequently cited decision that upheld such advanced directives, see In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990).
98. See, e.g., In re Rosa M. 597 N.Y.S.2d 544 (Sup. Ct. 1991) (involving refusal of electroconvulsive therapy by the patient’s surrogate
decisionmaker).
99. For an interesting study on end-of-life treatment preferences of people with mental illnesses, see Mary Ellen Foti et al., End of Life
Treatment Preferences of Persons with Serious Mental Illness, 56 PSYCHIATRIC SERVICES 585 (2005). The authors concluded that most of
the 150 community-residing individuals with mental illness who participated in the study could competently specify treatment choices for
certain end-of-life diseases.
100. Although the doctrine of informed consent has deep roots in Anglo-American reverence for individual liberty, the doctrine was not
developed until the 1960s. JAY KATZ, THE SILENT WORLD OF DOCTOR AND PATIENT 59–80 (1984); JESSICA BERG ET AL.,
INFORMED CONSENT: LEGAL THEORY AND CLINICAL PRACTICE (2d ed. 2001) [hereinafter INFORMED CONSENT].
The first informed consent case is usually considered to be Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 317 P.2d 170 (Cal. Dist. Ct.
App. 1957). For a discussion of the role of informed consent in public health, see Jessica Berg, All For One and One for All: Informed Consent
and Public Health, 50 HOUS. L. REV. 2 (2012)
101. See KATZ, supra note 100, at 49; Christine Grady, Enduring and Emerging Challenges of Informed Consent, 372 N. ENG. J. MED.
855 (2015).
102. See KATZ, supra note 100, at 69–71; Grady, supra note 101.
103. Richard Hermann et al., Prescription of Antipsychotic Drugs by Office-Based Physicians in the United States, 1989–1997, 53
PSYCHIATRIC SERV. 425 (2002) (reporting that visits during which antipsychotic medications were prescribed increased from 3.2 million in
1989 [46% of all visits that year] to 6.9 million visits in 1997 [88% of all visits]).
104. INFORMED CONSENT, supra note 100, at 18.
105. See KATZ, supra note 100.
106. Id. at 86–87.
107. Health Policy Brief: Patient Engagement (February 14, 2013), available at
http://healthaffairs.org/healthpolicybriefs/brief_pdfs/healthpolicybrief_86.pdf.
108. See generally INFORMED CONSENT, supra note 100, at 12.
109. The challenge came in Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), cert. denied, 409 U.S. 1064 (1972).
110. See, e.g., Natanson v. Kline, 350 P.2d 1093, reh’g denied, 354 P.2d 670 (Kan. 1960).
111. The leading case in this regard is Canterbury v. Spence, supra note 109.
112. See, e.g., id.
113. The subjective test has rarely been adopted, INFORMED CONSENT, supra note 100, at 49–50, in large part because of the
complications it creates for the health care professional in determining what information would be material to the individual (as opposed to the
“reasonable”) patient.
114. Id. at 54–61.
115. Id. at 61–64. For example, the Wisconsin Supreme Court ruled that a physician must reveal his or her actual experience with a particular
procedure in response to a direct question from a patient. Johnson v. Kokemoor, 545 N.W. 2d 495 (1996). Although this case involved a
physician’s untruthful answer to a patient’s question, there is logically no reason why the burden should fall on a patient to elicit the information
through a question; if the information is material in that situation, presumably it would be material generally. John Petrila, The Emerging Debate
over the Shape of Informed Consent: Can the Doctrine Bear the Weight?, 21 BEHAV. SCI. & L. 121 (2003). A 2012 review found a general
reluctance on the part of the courts to expand the doctrine of informed consent much beyond its original contours. B. Sonny Bal & Theodore J.
Choma, What to Disclose?: Revisiting Informed Consent, 470 CLINICAL ORTHOPAEDICS & RELATED RES. 1346 (2012).
116. See INFORMED CONSENT, supra note 100, at 48 (“Between 1970, when it was formulated by Waltz and Scheuneman . . . and
1978, about half of the courts considering the issue moved in this direction [toward patient-centered disclosure]. Since then, however, there has
been a gradual reverse trend, prompted mostly by legislatures that overturned judicial applications of the patient-oriented standard. At this time
roughly half the states use a professional standard of disclosure, and half use a patient standard”).
117. BARRY R. FURROW ET AL., HEALTH LAW § 3-10 (2013). The authors provide two less persuasive reasons as well: The
physician does not have enough time to give all the information patients may request, and the physician should not be subjected to the hindsight
of the patient and the second-guessing of the jury.
118. Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1988).
119. KATZ, supra note 100, at 83.
120. The same difference was not found in any other type of malpractice litigation. David M. Studdert et al., Geographic Variation in

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Informed Consent Law: Two Standards for Disclosure of Treatment Risks, 4 J. EMPIRICAL LEGAL STUDIES 103 (2007).
121. See, e.g., Mitchell v. Robinson, 334 S.W.2d 11 (Mo. 1960) (speaking of whether treatment was “immediately necessary to save [the
person’s] life or sanity”). The rule that informed consent is not required in emergencies is long-standing and unlikely to change; it applies in the
treatment of children as well. Committee on Pediatric Emergency Medicine and Committee on Bioethics, Consent for Emergency Medical
Services for Children and Adolescents, 128 PEDIATRICS 427 (2011).
122. See, e.g., Arato v. Avedon, 858 P.2d 598, 609 (Cal. 1993) (noting that a “patient may validly waive the right to be informed”); Holt v.
Nelson, 523 P.2d 211, 219 (Wash. 1974) (“A physician need not disclose the hazards of treatment when the patient has requested she not be
told about the dangers”); DEL. CODE ANN. tit. 18, § 6852(b)(2) (1999) (acknowledging waiver as a defense to lack-of-informed-consent
claims); UTAH CODE ANN. § 78B-3-406(3)(c) (2008) (same); VT. STAT. ANN. tit. 12 § 1909(c)(2) (same).
123. INFORMED CONSENT, supra note 100, at 85.
124. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).
125. Cobbs v. Grant, 502 P.2d 1, 246 (Cal. 1972). For a rationalization of this principle from a clinical perspective, see F. Carnerie, Crisis
and Informed Consent: Analysis of a Law–Medicine Malocclusion, 12 AM. J.L. & MED. 55 (1987). For an argument against the therapeutic
privilege, see Carolyn Johnston & Genevieve Holt, The Legal and Ethical Implications of Therapeutic Privilege—Is It Ever Justified to Withhold
Treatment Information from a Competent Patient?, 1 CLINICAL ETHICS 146 (2006). For a short article that conveys how thoughtful
physicians think about this matter, see Abby R. Rosenberg, Nondisclosure, 316 JAMA 821 (2016).
126. Weithorn has described well some models for such shared responsibility. Lois Weithorn, Involving Children in Decisions Affecting Their
Own Welfare: Guidelines for Professionals, in CHILDREN’S COMPETENCE, supra note 23.
127. See KATZ, supra note 100, especially ch. 6.
128. DIVISION OF CHILD, YOUTH, & FAMILY SERVICES, AM. PSYCHOLOGICAL ASS’N, STANDARDS REGARDING
CONSENT FOR TREATMENT AND RESEARCH INVOLVING CHILDREN (1982).
129. See generally Bruce Winick, Competency to Consent to Treatment: The Distinction between Assent and Objection, 28 HOUS. L. REV.
15 (1991).
130. Whether a minor may consent to abortion without parental notification is a highly charged political issue. See Planned Parenthood v.
Casey, 505 U.S. 833 (1992). For a discussion, see Malinda L. Seymore, Sixteen and Pregnant: Minors’ Consent in Abortion and Adoption, 25
YALE J.L. & FEMINISM 99 (2013).
131. See Gary B. Melton, Minors and Privacy: Are Legal and Psychological Concepts Compatible? 62 NEB. L. REV. 455, 492 (1983).
132. Loren Roth et al., Tests of Competency to Consent to Treatment, 134 AM. J. PSYCHIATRY 279 (1977). See also INFORMED
CONSENT, supra note 100, at 100–104.
133. Paul Appelbaum & Thomas Grisso, The MacArthur Treatment Competence Study (I), 19 LAW & HUM. BEHAV. 105 (1995)
(arguing, based on a comprehensive review of the legal and clinical literature, that the first four constructs discussed later in the text represent
the relevant legal landscape). Among the scores of recent citations are Henry Dlugacz & Christopher Wimmer, Legal Aspects of Administrating
Antipsychotic Medications to Jail and Prison Inmates, 36 INT’L J.L. & PSYCHIATRY 213, 217 (2013), and Sergio Ramos Pozón, Elementos
Necesarios al Consentimiento Informado en Pacientes con Esquizofrenia, 23 REVISTA BIOÉTICA 20, 25 (2015) (noting that empirical studies
of competence usually focus on these four criteria: “comprensión, razonamiento, apreciación y expression de una elección”).
134. INFORMED CONSENT, supra note 100, at 101.
135. See Richard Bonnie, The Competence of Criminal Defendants: Beyond Dusky and Drope, 47 U. MIAMI L. REV. 539, 574 (1993).
136. INFORMED CONSENT, supra note 100, at 102.
137. See Grant Morris, Judging Judgment: Assessing the Competence of Mental Patients to Refuse Treatment, 32 SAN DIEGO L. REV. 343
(1995). See generally Loren Roth et al., The Dilemma of Denial in the Assessment of Competency to Refuse Treatment, 139 AM. J.
PSYCHIATRY 910 (1982), and Renee Sorrentino, Performing Capacity Evaluations: What’s Expected from Your Consult, 13 CURRENT
PSYCHIATRY 41 (Jan. 2014).
138. William Thompson, Psychological Issues in Informed Consent, in 3 MAKING HEALTH CARE DECISIONS 83, 86–103
(President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research ed., 1983).
139. ALAN STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION 65–70 (1975).
140. Id. at 68–69.
141. See E. Fuller Torrey & Mary Zdanowicz, Outpatient Commitment: What, Why, and for Whom, 52 PSYCHIATRIC SERV. 337 (2001)
(arguing that individuals who refuse treatment often lack insight into their illness for physiological reasons). Poor insight into one’s illness,
which psychiatrists (borrowing a neurological term) refer to as “anosognosia,” is common in persons with schizophrenia. See Katerine Osatuke
et al., Insight in Schizophrenia: A Review of Etiological Models and Supporting Research, 49 COMPREHENSIVE PSYCHIATRY 70 (2008);
Douglas S. Lehrer & Jennifer Lorenz, Anosognosia in Schizophrenia: Hidden in Plain Sight, 11 INNOVATIONS CLINICAL NEUROSCI.
10 (May–June 2014).

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 142. See Morris, supra note 137, at 432 (“Most psychiatrists equated incompetence with either their finding of mental disorder or the
patient’s unwillingness to acknowledge mental disorder. When psychiatrists made a professional judgment that a medication was medically
appropriate to treat the patient’s disorder, they often viewed any patient objections as irrational”). See also Eva C. Winkler et al., Patient
Involvement in Decisions to Limit Treatment: The Crucial Role of Agreement between Physician and Patient, 27 J. CLINICAL ONCOLOGY
2225 (2009).
143. INFORMED CONSENT, supra note 100, at 103–104.
144. For an advocate of this view, see Saks, supra note 5.
145. See, e.g., Kaimowitz v. Department of Mental Health, No. 73-19434-AW (Cir. Ct. Wayne County, Mich., July 10, 1973)
(institutionalized patients unable to give voluntary consent to psychosurgery), abstracted in 13 CRIM. L. REP. 2452 (1973), reprinted in
ALEXANDER BROOKS, LAW, PSYCHIATRY, AND THE MENTAL HEALTH SYSTEM 902 (1974). See also DAVID WEXLER,
MENTAL HEALTH LAW: MAJOR ISSUES 193–212 (1981). The expansive ruling in the Kaimowitz case has not been applied by other
courts. Bruce J. Winick, Coercion and Mental Health Treatment, 74 DENV. U. L. REV. 1145 (1997).
Psychosurgery is still recommended for a few psychiatric conditions where no other therapy has been successful. See, e.g., Myreille D’Astous
et al., Bilateral Stereotactic Anterior Capsulotomy for Obsessive–Compulsive Disorder: Long-Term Follow-Up, 84 J. NEUROLOGY
NEUROSURGERY & PSYCHIATRY 1208 (2013). For historical reviews, see George A. Mashour et al., Psychosurgery: Past, Present, and
Future, 48 BRAIN RES. REV. 409 (2005); Kyle A.B. Lapidus et al., History of Psychosurgery: A Psychiatrist’s Perspective, 80 WORLD
NEUROSURGERY S27.e1 (2013).
146. Thomas Grisso & Linda Vierling, Minors’ Consent to Treatment, 9 PROF. PSYCHOL. 412, 421–23 (1978); Gary B. Melton, Decision
Making by Children: Psychological Risks and Benefits, in CHILDREN’S COMPETENCE, supra note 23, at 21, 24–26; Priscilla Anderson,
Competent Children?: Minors’ Consent to Health Care Treatment and Research, 65 SOC. SCI. & MED, 2272 (2007)
147. Gary B. Melton, Sexually Abused Children and the Legal System: Some Policy Recommendations, 13 AM. J. FAM. THERAPY 61
(1985).
148. Michael Perlin, “Where Souls Are Forgotten”: Cultural Competencies, Forensic Evaluations and International Human Rights, 15
PSYCHOL. PUB. POL’Y & L. 257, 268 (2009).
149. 720 F.2d 266 (3d Cir. 1983).
150. 738 F.2d 1 (1st Cir. 1984). See also Rogers v. Comm’r Dep’t Mental Health 458 N.E.2d 308 (Mass. Sup. Jud. Ct. 1983).
151. For a brief review of cases during the height of the controversy, see John Parry, Right to Refuse Psychotropic Medication, 8 MENTAL &
PHYSICAL DISABILITY L. REP. 83 (1984).
152. See, e.g., Rogers v. Okin, 478 F. Supp. 1342, 1367 (1979); cf. Aden v. Younger, 57 Cal. App. 3d 662, 129 Cal. Rptr. 535, 546 (4th Dist.
1976) (finding that psychosurgery and electroshock therapy infringed upon freedom of thought and thus could only be used if the state could
show a compelling state interest).
153. See, e.g., Nelson v. Heyne, 335 F. Supp. 451, 455 (N.D. Ind. 1972); cf. Knecht v. Gillman, 488 F.2d 1136 (8th Cir. 1973) (finding that
aversive conditioning violates the Eighth Amendment when not used for treatment purposes).
154. See discussion on informed consent doctrine, § 11.03(a).
155. See, e.g., Rogers v. Okin, 634 F.2d 650 (1st Cir. 1980); Scott v. Plante, 532 F.2d 939, 946 n.9 (3d Cir. 1976). For a review of the
various constitutional bases for the right to refuse as the case law was developing, see 2 MENTAL DISABILITY L. REP. 43–50 (1977).
156. In mid-2016, a Google Scholar search using the phrase “‘mainstay of treatment’ & antipsychotics & schizophrenia” produced more than
1,700 hits, more than 500 of which had appeared since 2012. See, e.g., Leonardo V. Lopez & John M. Kane, Recommendations for the
Monitoring of Serum Concentrations of Antipsychotic Drugs in the Treatment of Schizophrenia, 76 J. CLINICAL PSYCHIATRY 1249, 1249
(2015) (noting that “Antipsychotic drugs . . . have been the mainstay of the treatment of schizophrenia and related illnesses since the
introduction of chlorpromazine in 1954”). Many of these articles qualify this statement by noting the shortcomings of antipsychotic therapy.
See, e.g., Diarmid Sinclair & Clive E. Adams, Treatment Resistant Schizophrenia: A Comprehensive Survey of Randomised Controlled Trials, 14
BMC PSYCHIATRY 253 (2014) (noting that one-third of patients with schizophrenia do not benefit from antipsychotic drugs).
157. See, e.g., Rogers v. Okin, 634 F.2d 650, 650 n.1 (1st Cir. 1980) (explicitly excluding consideration of other powerful psychotropic
medications, such as lithium and the antidepressants).
158. Hae-Won Shin & Sun Ju Chung, Drug-Induced Parkinsonism, 8 J. CLINICAL NEUROLOGY 15 (2012). Parkinson’s disease is
caused by reduced striatal dopamine activity, and antipsychotic drugs, which block dopamine receptors, induce movements typical of the disease.
Id. at 16.
159. Margaret G. Woerner et al., The Prevalence of Tardive Dyskinesia, 11 J. CLINICAL PSYCHOPHARMACOLOGY 34 (1991)
(13.3% prevalence among patients at a voluntary psychiatric hospital, 36.1% prevalence at a state hospital); Gary D. Tollefson et al., Blind,
Controlled, Long-Term Study of the Comparative Incidence of Treatment-Emergent Tardive Dyskinesia With Olanzapine or Haloperidol, 154
AM. J. PSYCHIATRY 1248 (1997) (citing 25% incidence after long-term exposure).

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 160. Jeffrey R. Strawn et al., Neuroleptic Malignant Syndrome, 164 AM. J. PSYCHIATRY 870 (2007). The incidence of this syndrome was
once estimated to be as high as 3%, but “more recent data suggest an incidence of 0.01%–0.02%.” Id.
161. For a still-useful description of the second-generation antipsychotics (SGAs) and their legal implications, see Douglas Mossman,
Unbuckling the “Chemical Straightjacket”: The Legal Significance of Recent Advances in the Pharmacological Treatment of Psychosis, 39 SAN
DIEGO L. REV. 103 (2002).
162. Christine Rummel-Kluge et al., Second-Generation Antipsychotic Drugs and Extrapyramidal Side Effects: A Systematic Review and Meta-
Analysis of Head-to-Head Comparisons, 38 SCHIZOPHRENIA BULL. 167 (2012).
163. One recent meta-analysis puts the risk of metabolic syndrome at about one-third of persons with schizophrenia. Alex J. Mitchell et al.,
Prevalence of Metabolic Syndrome and Metabolic Abnormalities in Schizophrenia and Related Disorders—A Systematic Review and Meta-
Analysis, 39 SCHIZOPHRENIA BULL. 306 (2013). The metabolic syndrome is not confined to persons who take psychotropic medications.
About a quarter of adult Americans have the syndrome, and even more would if they were not taking medications to lower serum lipids and
blood pressure. Hiram Beltrán-Sánchez et al., Prevalence and Trends of Metabolic Syndrome in the Adult U.S. Population, 1999–2010, 62 J. AM.
C. CARDIOLOGY 697 (2013).
164. One SGA (olanzapine) was slightly better therapeutically than the other medications, but was also associated with significant weight
gain. On balance, all of the medications were equally associated with high rates of discontinuation because of side effects or inability to
adequately control symptoms. Jeffrey A. Lieberman et al., Effectiveness of Antipsychotic Drugs in Patients with Chronic Schizophrenia, 353 NEW
ENG. J. MED. 1209 (2005). A more recent meta-analysis does suggest that patients stop taking SGAs less often than first-generation drugs.
Stefan Leucht et al., Comparative Efficacy and Tolerability of 15 Antipsychotic Drugs in Schizophrenia: A Multiple-Treatments Meta-Analysis,
382 LANCET 9896 (2013).
165. Alexander Brooks, The Right to Refuse Antipsychotic Medications: Law and Policy, 39 RUTGERS L. REV. 339, 350–52 (1987) (citing
research indicating that “medications are extensively administered for the convenience of staff rather than for treatment purposes and are
commonly used in a counter-therapeutic manner”).
166. For example, antipsychotic medications (particularly the first-generation drugs) can induce “secondary negative symptoms,” including
low motivation, blunted affect, and diminished verbal production. Negative symptoms can worsen patients’ functional outcome and quality of
life. Matthias Kirschner et al., Secondary Negative Symptoms—A Review of Mechanisms, Assessment and Treatment, SCHIZOPHRENIA RES.
(online publication May 23, 2016), available at http://www.schres-journal.com/article/S0920-9964(16)30224-9/fulltext.
167. See, e.g., Kenneth Duckworth, Awakenings with the New Antipsychotics, PSYCHIATRIC TIMES (May 1998) (recounting problems
such as grief, depression over weight gain, and stresses associated with “normal” living after treatment with the atypical medications).
168. Brooks, supra note 165, at 351 (describing findings in Rennie v. Klein, 476 F. Supp. 1294, 1302 (D.N.J. 1979), that “[p]olypharmacy,
the universally condemned use of more than one antipsychotic drug at a time, was widespread”). See also William A. Hargreaves et al., Effects of
the Jamison–Farabee Consent Decree: Due Process Protection for Involuntary Psychiatric Patients Treated with Psychoactive Medication, 144 AM.
J. PSYCHIATRY 188, 192 (1985). A more recent study of 4,156 patients with schizophrenia found that approximately one-quarter (968)
received polypharmacy, and that discontinuation rates were higher among those who did. Maxine D. Fisher et al., Antipsychotic Patterns of Use
in Patients with Schizophrenia: Polypharmacy versus Monotherapy, 14 BMC PSYCHIATRY 341 (2014).
169. See, e.g., Rogers v. Okin, 634 F.2d 650, 651 (1st Cir. 1980) (noting lack of contest over existence of some right to refuse).
170. Myers v. Alaska Psychiatric Institute, 138 P.3d 238 (Alaska 2006).
171. More specifically, the problem appears to stem from patterns of brain connectivity. Philip Gerretsen et al., Impaired Insight into Illness
and Cognitive Insight in Schizophrenia Spectrum Disorders: Resting State Functional Connectivity, 160 SCHIZOPHRENIA RES. 43 (2014).
See also supra note 141 discussing anosognosia in schizophrenia.
We note that this viewpoint is not confined to medical professionals. The websites of the National Alliance on Mental Illness
(http://www.nami.org/Learn-More/Mental-Health-Conditions/Related-Conditions/Anosognosia) and the Treatment Advocacy Center
(http://www.treatmentadvocacycenter.org/problem/anosognosia) have provided discussions of this matter (sites accessed August 17, 2016).
172. Kelly K. Anderson et al., The Role of Untreated Psychosis in Neurodegeneration: A Review of Hypothesized Mechanisms of Neurotoxicity
in First-Episode Psychosis, 59 CAN. J. PSYCHIATRY 513 (2014).
173. For a description of the psychological and fiscal costs of the right to refuse as it gained traction, see Brooks, supra note 165, at 37–74.
174. 494 U.S. 210 (1990).
175. Parham v. J.R., 442 U.S. 584 (1979) [discussed in § 10.10(a)]; Vitek v. Jones, 445 U.S. 480 (1980) [discussed in § 10.10(b)(1)].
176. Bruce Winick, New Directions in the Right to Refuse Mental Health Treatment: The Implications of Riggins v. Nevada, 2 WM. &
MARY BILL RTS. J. 205 (1993).
177. No court has contemplated holding that an incompetent person should have such a right. This posture makes sense if the medication is
needed to restore competence. On the other hand, even an incompetent person should be able to avoid medication that is not administered for
treatment purposes.
178. 504 U.S. 127 (1992).

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 179. Riggins had argued that the medication affected his demeanor and mental state during trial, thus denying him the right to show the jury
his true mental state, which he thought was relevant to his insanity defense. The Court avoided addressing this argument [see § 6.04(d) for
further discussion of the issue], and instead focused its opinion on the issues discussed in the text.
180. 539 U.S. 166 (2003).
181. Id. at 182–83.
182. Id. at 182. For a discussion of how Sell’s exceptions could eviscerate Sell, see Christopher Slobogin, Sell’s Conundrums: The Right of
Incompetent Defendants to Refuse Medication, 89 WASH. U. L. REV. 1523 (2012).
183. Susan A. McMahon, It Doesn’t Pass the Sell Test: Focusing on “the Facts of the Individual Case” in Involuntary Medication Inquiries, 50
AM. CRIM. L. REV. 387, 403 (2013).
184. See United States v. Rivera-Morales, 160 F. App’x 648 (9th Cir. 2005) (stating that “a chance of success that is simply more than a 50%
chance of success does not suffice to meet [Sell’s] standard”).
185. 457 U.S. 307 (1982) (holding that whether the right to treatment has been violated depends on whether “professional judgment was
exercised” in arriving at the treatment plan).
186. But see Susan Stefan, Leaving Civil Rights to the “Experts”: From Defense to Abdication under the Professional Judgment Standard, 102
YALE L.J. 639 (1992). Stefan distinguishes between “positive rights” (where the claimant is asking the state for something, as with the right to
treatment) and “negative rights” (where the claimant is attempting to avoid state intervention, as with the right to refuse). She argues that
whereas Youngberg’s professional-judgment standard is appropriate where positive rights are involved, applying that standard in negative-rights
situations inappropriately allows the scope of a right protecting the individual from the state to be determined by doctors instead of courts.
187. See, e.g., Jennifer Colangelo, The Right to Refuse Treatment for Mental Illness, 5 RUTGERS J. L. & PUB. POL’Y 492, 498 (2008);
Rivers v. Katz, 495 N.E.2d 337, 343 (N.Y. 1986) (“[T]he sine qua non for the state’s use of its parens patriae power as justification for the
forceful administration of mind-affecting drugs is a determination that the individual to whom the drugs are to be administered lacks the
capacity to decide for himself whether he should take the drugs”); Steel v. Hamilton Cty. Mental Health Bd. 736 N.E.2d 10, 19 (Ohio 2000)
(“A state’s parens patriae power . . . is legitimately invoked in forced-medication cases only when the patient lacks the capacity to make an
informed decision regarding his/her treatment”). New York provides a right to refuse for an individual who is on outpatient, but noncompliance
can result in 72 hours’ automatic hospitalization, followed by civil commitment. In the Matter of K.L., 86 N.E.2d 480 (N.Y. 2004).
188. See, e.g., Parham v. J.R., 442 U.S. 584 (1979) (permitting commitment of minor on say-so of mental health professional; no judge or
attorney required).
189. For a review, see Wenona Y. Whitfield, Capacity, Competency, and Courts, 14 WASH. U. J.L. & POL’Y 385 n.5 (2004) (reporting
that the following states have statutes that require judicial hearings before permitting medication over objection: Alaska, California, Colorado,
Delaware, Florida, Hawaii, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Mississippi, Montana, Minnesota, New Mexico, New York,
North Dakota, Ohio, Pennsylvania, Texas, Vermont, Virginia, Washington, Wisconsin, and West Virginia). One of the leading cases on the
issue is Rogers v. Comm’r, 458 N.W.2d 308 (1983); see also Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 244, 250 (Alaska 2006) (requiring
court finding of incompetence and adding that “an independent judicial best interests determination is constitutionally necessary”).
190. See, e.g., Rennie v. Klein, 462 F. Supp. 1131, 1147 (D.N.J. 1978); Dautremont v. Broadlawns Hosp., 827 F.2d 291 (8th Cir. 1987);
UTAH CODE ANN. § 64-7-36(10) (a civilly committed patient is deemed to be incompetent for making treatment decisions). But see State
ex rel. Jones v. Gerhardstein, 416 NW.2d 883 (Wis. 1987) (holding that, under a statute similar to Utah’s, forcible medication is not permissible
until a court has found the patient incompetent).
191. Even an administrative procedure is costly. A study of the administrative review process at Napa State Hospital put the cost of outside
reviewers, advocates, lost staff time, and so on at $300,000 per year for that hospital, and estimated that the cost of instituting such a program at
all five California state hospitals would be between one million and one and a half million dollars. Hargreaves et al., supra note 168. See also J.
Richard Ciccone et al., Right to Refuse Treatment: Impact of Rivers v. Katz, 18 J. AM. ACAD. PSYCHIATRY & L. 203 (1990), examining the
reasons patients refused medication after the New York Court of Appeals decision instituting the right.
192. In New Jersey, switching from an external review system to an internal one dropped the proportion of cases in which there was
discontinuation or a reduction of dosages from 59% to 2.5%. Brief for New Jersey Dep’t of Public Advocate in Harper v. Washington, at 38–54,
cited in 494 U.S. 210, 252 n.22 (Stevens, J., dissenting). But see Franklin Hickman et al., Right to Refuse Psychotropic Medication: An
Interdisciplinary Proposal, 6 MENTAL DISABILITY L. REP. 122, 130 (1982) (an external psychiatrist affirmed treatment recommendation
in 100% of cases, whereas an internal reviewer affirmed in only 75% of the cases). The difference may lie in the composition of the review board.
Cf. Brooks, supra note 165, at 373 (speculating that relatively low 67% affirmation rate of Minnesota Treatment Review Panel was due to fact
that the panel had only one physician).
193. This procedure was required in Rennie v. Klein, supra note 190.
194. Refusals range from 2.4 to 15% of the total civil patient population. Brooks, supra note 165, at 373. However, they can range much
higher with forensic populations. Robert Miller et al., The Right to Refuse Treatment in a Forensic Patient Population: Six-Month Review, 17

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BULL. AM. ACAD. PSYCHIATRY & L. 107 (1989) (finding a refusal rate of 75%).
195. The leading case is Aden v. Younger, 57 Cal. App. 3d 662, 129 Cal. Rptr. 535 (1976) (recognizing that “[p]atients have a right to refuse
psychosurgery” and that “[n]o shock treatments may be given if the patient is able to give informed consent and refuses,” but also requiring
heightened review procedures for patient consent to such procedures). See also In re Dunn, 181 S.W.3d 601, 606 (Mo. App. E.D.) (2006)
(affirming MO. REV. STAT. § 630.130.4, which requires that parents of minor patients or legal guardians of incompetent patients obtain
court orders to authorize electroconvulsive therapy); Mike E. Jorgensen, Is Today the Day We Free Electroconvulsive Therapy?, 12
QUINNIPIAC HEALTH L. J. 1 (2008) (including an appendix listing statutes).
196. Thomas G. Gutheil et al., “The Wrong Handle”: Flawed Fixes of Medicolegal Problems in Psychiatry and the Law, 33 J. AM. ACAD.
PSYCHIATRY & L. 432 (2005).
197. Id. at 433 (citations omitted).
198. See generally KATZ, supra note 100; Paul R. Benson, Informed Consent: Drug Information Disclosed to Patients Prescribed
Antipsychotic Medication, 172 J. NERVOUS & MENTAL DISEASE 642 (1983). The gap between spirit and practice is not confined to
mental health care. See Christine Grady, Enduring and Emerging Challenges of Informed Consent, 372 N. ENG. J. MED. 855, 856–57 (2015)
(noting that “substantial body of literature corroborates a considerable gap between the practice of informed consent and its theoretical construct
or intended goals,” and providing examples and citations).
199. Anvita Pandiya, Readability and Comprehensibility of Informed Consent Forms for Clinical Trials, 1 PERSPECTIVES CLINICAL
RES. 98 (2010). The problem is one of long standing. Lynn Epstein & Louis Lasagna, Obtaining Informed Consent: Form or Substance?, 123
ARCHIVES INTERNAL MED. 682 (1969); INFORMED CONSENT, supra note 100, at 195 (“Evidence exists that patient understanding
of information on consent forms is inversely related to their length. Overly inclusive consent forms may have the paradoxical effect of decreasing
the level of patient understanding, perhaps even increasing the chance that a patient will feel misled, aggrieved, and inclined to sue”).
200. See Paul P. Christopher et al., Consent Form Readability and Educational Levels of Potential Participants in Mental Health Research, 58
PSYCHIATRIC SERV. 227 (2007) (consent forms for mental health research had average readability levels of grade levels 12 to 14.5, whereas
approximately 35% of potential subjects had not graduated from high school); Michael K. Paasche-Orlow et al., Readability Standards for
Informed-Consent Forms as Compared with Actual Readability, 348 N. ENG. J. MED. 721 (2003) (institutional review boards [IRBs] typically
suggest text for consent forms at a more difficult readability level than their own guidelines). The problem is not confined to mental health
consent forms. See, e.g., Adam E. M. Eltorai et al., Readability of Invasive Procedure Consent Forms, 8 CLINICAL & TRANSLATIONAL
SCI. 830 (2015) (average readability level = third year of college).
201. Leanne Stunkel et al., Comprehension and Informed Consent: Assessing the Effect of a Short Consent Form, 32 IRB: ETHICS & HUM.
RES. 1 (2010).
202. INFORMED CONSENT, supra note 100, at 194–96.
203. Frederick M. Jacobsen, Second-Generation Antipsychotics and Tardive Syndromes in Affective Illness: A Public Health Problem with
Neuropsychiatric Consequences, 105 AM. J. PUB. HEALTH e10 (2015).
204. Johannes Hamann et al., Psychiatrists’ Use of Shared Decision Making in the Treatment of Schizophrenia: Patient Characteristics and
Decision Topics, 60 PSYCHIATRIC SERVICES 1107 (2009); Debbie Carol Schachter & Irwin Kleinman, Psychiatrists’ Attitudes about and
Informed Consent Practices for Antipsychotics and Tardive Dyskinesia, 55 PSYCHIATRIC SERVICES 714, 715–16 (2004).
205. See AM. PSYCHIATRIC ASS’N, TARDIVE DYSKINESIA: A TASK FORCE REPORT OF THE AMERICAN
PSYCHIATRIC ASSOCIATION 216 (1992) (“Tardive dyskinesia is neither too infrequent nor too insignificant a risk of treatment to avoid
disclosure”).
206. Paul Slovic et al., Informing People about Risk, in PRODUCT LABELING AND HEALTH RISKS: BANBURY REPORT 165
(Lovis A. Morris et al. eds., 1980).
207. Joanna Sokolowska & Patrycja Sleboda, The Inverse Relation between Risks and Benefits: The Role of Affect and Expertise, 35 RISK
ANALYSIS 1252, 1253–54 (2015).
208. Steven J. Sherman et al., Imagining Can Heighten or Lower the Perceived Likelihood of Contracting a Disease: The Mediating Effect of
Ease of Imagery, 11 PERSONALITY & SOC. PSYCHOL. BULL. 118 (1985). The impact of risk disclosure on behavior is a major issue in a
variety of legal contexts. See, e.g., Stephanie Stern, Temporal Dynamics of Disclosure: The Example of Residential Real Estate, 2005 UTAH L.
REV. 57 (2005); Susanna Kim Ripken, Predictions, Projections, and Precautions: Conveying Cautionary Warnings, 2005 U. ILL. L. REV. 929
(2005). For a discussion of this issue in health care, see Kathleen Ruroede, Attitudes of Risk Management Professionals toward Disclosure of
Medical Mistakes, 12 RISK: ISSUES IN HEALTH & SAFETY 67 (2001).
209. William C. Thompson, Research on Human Judgment and Decision Making: Implications for Informed Consent and Institutional
Review, in RESEARCH ETHICS: A PSYCHOLOGICAL APPROACH ch. 2 (Barbara H. Stanley et al. eds., 1996) [hereinafter
RESEARCH ETHICS]. See also Benjamin Mouton & Jaime S. King, Aligning Ethics with Medical Decision-Making: The Quest for Informed
Patient Choice, 38 J. LAW MED. & ETHICS 85 (2010) (arguing that many patients undergo surgery they might have declined had all

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material risks been disclosed, and asserting that shared decisionmaking processes are critical to truly informed consent); Ronald M. Epstein et
al., Communicating Evidence for Participatory Decision Making, 291 JAMA 2359 (2004).
210. Thomas Grisso & Paul Appelbaum, The MacArthur Treatment Competency Study (III): Abilities of Patients to Consent to Psychiatric
and Medical Treatment, 19 LAW & HUM. BEHAV. 149, 173 (1995).
211. Id.
212. As the researchers put it, “a fixed inability to understand should not automatically be presumed on the basis of a patient’s initial failure
to comprehend the disclosure.” Id. at 173.
213. Debbie Schachter & Irwin Kleinman, Psychiatrists’ Documentation of Informed Consent, 43 CAN. J. PSYCHIATRY 1012 (1998). The
United States government has issued guidelines on informed consent for hospitals, including documentation requirements. Center for Medicaid
and State Operations/Survey and Certification Group, Revisions to the Hospital Interpretive Guidelines for Informed Consent (Department of
Health & Human Services, Centers for Medicare & Medicaid Services, Apr. 13, 2007), available at https://www.cms.gov/Medicare/Provider-
Enrollment-and-Certification/SurveyCertificationGenInfo/downloads/scletter07-17.pdf.
214. EVALUATING COMPETENCIES, supra note 18, at 400–402.
215. Id.
216. David Soskis, Schizophrenic and Medical Inpatients as Informed Drug Consumers, 35 ARCHIVES GEN. PSYCHIATRY 645 (1978).
217. Richard Jaffe, Problems of Long-Term Informed Consent, 14 BULL. AM. ACAD. PSYCHIATRY & L. 163 (1986).
218. Barbara Stanley et al., The Functional Competency of Elderly at Risk, 28 GERONTOLOGY 53 (1988).
219. Loren Roth et al., Competency to Decide about Treatment or Research: An Overview of Some Empirical Data, 5 INT’L J.L. &
PSYCHIATRY 29 (1982); Michael Irwin et al., Psychotic Patients’ Understanding of Informed Consent, 142 AM. J. PSYCHIATRY 1351
(1984); Jeffrey S. Janofsky et al., The Hopkins Competency Assessment Test: A Brief Method for Evaluating Patients’ Capacity to Give Informed
Consent, 43 HOSP. & COMMUNITY PSYCHIATRY 132 (1992); Paul R. Benson et al., Information, Disclosure, Subject Understanding,
and Informed Consent in Psychiatric Research, 12 LAW & HUM. BEHAV. 455 (1988); James C. Beck, Patients’ Competency to Give Informed
Consent to Medication, 37 HOSP. & COMMUNITY PSYCHIATRY 400 (1986).
220. Grisso & Appelbaum, supra note 210.
221. For a description of these instruments, see Thomas Grisso et al., The MacArthur Treatment Competence Study (II): Measures of Abilities
Related to Competence to Consent to Treatment, 19 LAW & HUM. BEHAV. 127 (1995). See also infra text accompanying notes 302, 324-327.
222. James M. Gold & Philip D. Harvey, Cognitive Deficits in Schizophrenia, 16 PSYCHIATRIC CLINICS N. AM. 295 (1993); Mario
Fioravanti et al., Cognitive Deficits in Schizophrenia: An Updated Metanalysis of the Scientific Evidence, 12 BMC PSYCHIATRY 64 (2012).
223. See, e.g., Kathryn Rieger et al., 15 Years of Microstate Research in Schizophrenia—Where Are We? A Meta-Analysis, 7 FRONTIERS
PSYCHIATRY 22 (2016) (EEG abnormalities in schizophrenia appear to “correspond to core symptoms of schizophrenia, e.g., insufficient
reality testing and self-monitoring as during auditory verbal hallucinations” that are particularly affected by antipsychotic drugs or neurofeedback
interventions”).
224. Grisso & Appelbaum, supra note 210, at 169.
225. Id. at 171.
226. Id. at 172.
227. For a brief review of earlier measures, see Marya E. Pollack & Stephen B. Billick, Competency to Consent to Treatment, 70
PSYCHIATRIC Q. 303 (1999). For more recent comprehensive reviews, see Edward D. Sturman, The Capacity to Consent to Treatment and
Research: A Review of Standardized Assessment Tools, 25 CLINICAL PSYCHOL. REV. 954 (2005); Paola C. Candia & Alfredo C. Barba,
Mental Capacity and Consent to Treatment in Psychiatric Patients: The State of the Research, 24 CURRENT OPINION PSYCHIATRY 442
(2011).
228. See Roth et al., supra note 219; Benson et al., supra note 219.
229. See, e.g., Dilip V. Jeste et al., Magnitude of Impairment in Decisional Capacity in People with Schizophrenia Compared to Normal
Subjects: An Overview, 32 SCHIZOPHRENIA BULL. 121 (2006), which reviews findings from 12 studies. In another article, these authors
also reported that effect sizes were greater in studies involving inpatient clinical samples than in those involving outpatients. See Jochem
Vollman et al., Competence of Mentally Ill Patients: A Comparative Empirical Study, 33 PSYCHOL. MED. 1463 (2003).
230. Barton W. Palmer et al., Correlates of Treatment-Related Decision-Making Capacity among Middle-Aged and Older Patients with
Schizophrenia, 61 ARCHIVES GEN. PSYCHIATRY 230 (2004).
231. Thomas Grisso et al., The MacCAT-T: A Clinical Tool to Assess Patients’ Capacities to Consent to Treatment Decisions, 48
PSYCHIATRIC SERV. 1415, 1417 (1997).
232. Palmer et al., supra note 230.
233. Maria I. Lapid et al., Decisional Capacity of Severely Depressed Patients Requiring Electroconvulsive Therapy, 19 J. ECT 67 (2003).
234. Barton W. Palmer et al., Treatment Related Decision-Making Capacity in Middle-Aged and Older Patients with Psychosis: A Preliminary

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Study using the MacCAT-T and HCAT, 10 AM. J. GERIATRIC PSYCHIATRY 207 (2002).
235. Barton Palmer et al., Changes in Capacity to Consent Over Time in Patients Involved in Psychiatric Research, 202 BRIT. J.
PSYCHIATRY 454 (2013).
236. See especially Respecting Autonomy: The Obligation for Conversation, in JAY KATZ, THE SILENT WORLD OF DOCTOR AND
PATIENT 130–64 (2002 ed.).
237. See Victoria Miller et al., Children’s Competence for Assent and Consent: A Review of Empirical Findings, 14 ETHICS & BEHAV. 255
(2004) (finding significant differences in the manner in which competence was approached in research studies, and that some studies
emphasized consent while others emphasized assent); Jennifer C. Hurley & Marion K. Underwood, Children’s Understanding of Their Research
Rights before and after Debriefing: Informed Assent, Confidentiality, and Stopping Participation, 73 CHILD DEV. 132 (2002); Gail Geller,
Informed Consent for Enrolling Minors in Genetic Susceptibility Research: A Qualitative Study of At-Risk Children’s and Parents’ Views about
Children’s Roles in Decision-Making, 32(4) J. ADOLESCENT HEALTH 260 (2003); Jean-Marie Bruzzese & Celia B. Fisher, Assessing and
Enhancing the Research Consent Capacity of Children and Youth, 7(1) APPLIED DEV. SCI. 13 (2003); Gary B. Melton, Developmental
Psychology and the Law: The State of the Art, 22 J. FAM. L. 445, 463–65 (1984), and the studies cited there. See generally CHILDREN’S
COMPETENCE, supra note 23.
238. See, e.g., Lois Weithorn & Susan Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53
CHILD DEV. 1589 (1982).
239. Irma M. Hein et al., Accuracy of the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR) for Measuring
Children’s Competence to Consent to Clinical Research, 168 JAMA PEDIATRICS 1147 (2014). Note that these findings are consistent with the
view that adolescents reach adult levels of cognitive capacity sooner than emotional or social maturity, which, if true, implies that clinicians and
policymakers should undertake situation-specific assessments of adolescent capacity. Laurence Steinberg et al., Are Adolescents Less Mature than
Adults?: Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop,” 64 AM. PSYCHOLOGIST 583 (2009).
240. Ellen A. Lipstein et al., An Emerging Field of Research: Challenges in Pediatric Decision Making, 35 MED. DECISION MAKING 403
(2015).
241. Thomas Grisso, Voluntary Consent to Research Participation in the Institutional Context, in RESEARCH ETHICS, supra note 209,
ch. 3.
242. See ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND OTHER
INMATES (1961).
243. Catherine E. Rosen, Why Clients Relinquish Their Rights to Privacy under Sign-Away Pressures, 8 PROF. PSYCHOL. 17 (1977) (100%
of patients agreed to allow a hospital to include personal data on a computer record until a sentence was added to the consent form that
treatment would not depend on whether they so agreed, at which point the compliance rate dropped to 41% in one clinic and 20% in another).
244. See generally KATZ, supra note 100; INFORMED CONSENT, supra note 100, at 67–70 (doctors’ tendency to sound as if they are
doing patients a favor in telling them about risks and benefits combines with patients’ self-doubt to produce a lack of assertiveness).
245. Loren Roth & Paul Appelbaum, Involuntary Treatment in Medicine and Psychiatry, 141 AM. J. PSYCHIATRY 202 (1984).
246. Jennifer Fong Ha & Nancy Longnecker, Doctor–Patient Communication: A Review, 10 OCHSNER J. 38 (2010).
247. Susan Shaw et al., The Role of Culture in Health Literacy and Chronic Disease Screening and Management, 6 J. IMMIGRANT &
MINORITY HEALTH 460 (2009).
248. Shlomo Cohen, Nudging and Informed Consent, 13 AM. J. BIOETHICS 3 (June 2013).
249. Thompson, supra note 138, at 90–91.
250. See, e.g., SCOTT Y.H. KIM, EVALUATION OF CAPACITY TO CONSENT TO TREATMENT AND RESEARCH 62–64
(Table 3.1) (2009). A recent, detailed example appears in Jasneet Parmar et al., The Development and Implementation of a Decision-Making
Capacity Assessment Model, 18 CAN. GERIATRICS J. 15 (2015).
251. Research has found that nonpharmacological treatments have limited effectiveness in schizophrenia. See S. Jauhar et al., Cognitive-
Behavioural Therapy for the Symptoms of Schizophrenia: Systematic Review and Meta-analysis with Examination of Potential Bias, 204 BRIT. J.
PSYCHIATRY 20 (2014) (meta-analysis shows only a small effect size). Also, continuous treatment appears to be the “gold standard” for care.
Marc De Hert et al., The Use of Continuous Treatment versus Placebo or Intermittent Treatment Strategies in Stabilized Patients with
Schizophrenia: A Systematic Review and Meta-Analysis of Randomized Controlled Trials with First- and Second-Generation Antipsychotics, 29
CNS DRUGS 637 (2015). Some individuals with bipolar disorder may have valid reasons for trying to go without medication. Reed
Cappleman et al., Managing Bipolar Moods without Medication: A Qualitative Investigation, 174 J. AFFECTIVE DISORDERS 241 (2015).
Nonetheless, the most recent clinical guidance recommends pharmacological treatment for the manic phase of bipolar disorder, followed by
psychosocial interventions. NAT’L INSTITUTE FOR CLINICAL EXCELLENCE, BIPOLAR DISORDER: ASSESSMENT AND
MANAGEMENT §§ 1.5–1.7 (Sept. 2014).
252. Rogers v. Okin, 634 F.2d 650, 654 (1980).
253. THOMAS GRISSO & PAUL S. APPELBAUM, ASSESSING COMPETENCE TO CONSENT TO TREATMENT: A

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GUIDE FOR PHYSICIANS AND OTHER HEALTH PROFESSIONALS (1998). As of mid-2016, Google Scholar counted more than
900 citations of the MacCAT-T. See Mossman & Farrell, supra note 65, at 540 (“The MacCAT–T has been evaluated in several diagnostic
groups, including persons with mood and thought disorders and persons with heart disease. This extensive research base for the MacCAT–T
may have particular value when an assessment is challenging and is likely to be resolved in court”).
254. Paul S. Appelbaum, Assessment of Patients’ Competence to Consent to Treatment, 357 N. ENG. J. MED. 1834, 1836 (Table 1) (2007).
255. Grisso et al., supra note 221.
256. Alec Buchanan et al., Reliability of Mental Capacity Assessments in Psychiatric Inpatients, 187 BRIT. J. PSYCHIATRY 372 (2005).
257. Grisso et al., supra note 221.
258. KIM, supra note 250, at 62–64.
259. Daniel C. Marson et al., Assessing the Competency of Patients with Alzheimer’s Disease under Different Legal Standards: A Prototype
Instrument, 52 ARCHIVES NEUROLOGY 949 (1995).
260. For helpful comparisons of key features of instruments including the MacCAT-T and the CCTI, see Jennifer Moye et al., Capacity to
Consent to Treatment: Empirical Comparisons of Three Instruments in Older Adults with and without Dementia, 44 GERONTOLOGIST 166
(2004), and Joyeeta G. Dastidar & Andy Odden, How Do I Determine If My Patient Has Decision-Making Capacity?, 15 HOSPITALIST 24
(2011).
261. EVALUATING COMPETENCIES, supra note 18, at 405–12. For studies that support the usefulness of the CCTI in evaluating in
persons with neurological disorders and brain injuries, see Laura E. Dreer et al., Cognitive Predictors of Medical Decision-Making Capacity in
Traumatic Brain Injury, 53 REHABILITATION PSYCHOL. 486 (2008), and Kristen L. Triebel et al., Medical Decision-Making Capacity in
Patients with Malignant Glioma, 73 NEUROLOGY 2086 (2009).
262. John Q. LaFond & Debra Srebnik, The Impact of Mental Health Advance Directives on Patient Perceptions of Coercion in Civil
Commitment and Treatment Decisions, 25 INT’L. J.L. & PSYCHIATRY 537 (2002).
263. Jeffrey Swanson et al., Psychiatric Advance Directives: A Survey of Persons with Schizophrenia, Family Members, and Treatment
Providers, 2 INT’L J. FORENSIC MENTAL HEALTH 73 (2003) [hereinafter A Survey]; Jeffrey Swanson et al., Psychiatric Advance
Directives among Public Mental Health Consumers in Five U.S. Cities: Prevalence, Demand, and Correlates, 34 J. AM. ACAD. PSYCHIATRY
& L. 43 (2006) [hereinafter Five U.S. Cities]. See also Debra S. Srebnik et al., Interest in Psychiatric Advance Directives among High Users of
Crisis Services and Hospitalization, 54 PSYCHIATRIC SERV. 981 (2003). In a 2013 report, however, 49% of “consumers” reported having an
advance directive. Christine M. Wilder et al., A Survey of Stakeholder Knowledge, Experience, and Opinions of Advance Directives for Mental
Health in Virginia, 40 ADMIN. & POL’Y MENTAL HEALTH 232, 235 (2013).
264. Five U.S. Cities, supra note 263, at 54.
265. Patricia Backlar et al., Consumer, Provider, and Informal Caregiver Opinions on Psychiatric Advance Directives, 28 ADMIN. & POL’Y
MENTAL HEALTH 427 (2001).
266. A Survey, supra note 263; Srebnik et al., supra note 263; Five U.S. Cities, supra note 263, at 49 (Table 1).
267. Five U.S. Cities, supra note 263.
268. Jeffrey W. Swanson et al., Facilitated Psychiatric Advance Directives: A Randomized Trial of an Intervention to Foster Advance
Treatment Planning among Persons with Severe Mental Illness, 163 AM. J. PSYCHIATRY 1943 (2006).
269. For a discussion and review, see Pablo Nicaise et al., Psychiatric Advance Directives as a Complex and Multistage Intervention: A Realist
System Review, 21 HEALTH & SOC. CARE COMMUNITY 1 (2013).
270. In one such case that received substantial attention, an involuntarily hospitalized Vermont woman had an advance directive that
explicitly refused “any and all anti-psychotic, neuroleptic, psychotropic, or psychoactive medications.” Hargrave v Vermont, 340 F.3d 27, 31 (2d
Cir. Vt. 2003). The Second Circuit voided a Vermont law that would have allowed an override of this directive after 45 days of no
improvement, saying that the override violated Title II of the Americans with Disabilities Act. Id at 38. As Paul Appelbaum, a former president
of the American Psychiatric Association commented, “If adopted more widely, . . . Hargrave would appear to provide a tool whereby patients
who are determined to avoid treatment with medications would be able . . . to completely preclude such [involuntary] treatment,” a situation
that could create “a class of patients who would be permanently untreatable, . . . if they later became psychotic and were hospitalized
involuntarily.” Paul S. Appelbaum, Psychiatric Advance Directives and the Treatment of Committed Patients, 51 PSYCHIATRIC SERV. 751,
752 (2004).
271. Marvin S. Swartz et al., Psychiatrists’ Views and Attitudes about Psychiatric Advance Directives, 4 INT’L J. FORENSIC MENTAL
HEALTH 107 (2005).
272. Backlar et al., supra note 265, at 434; Debra S. Srebnik et al., The Content and Clinical Utility of Psychiatric Advance Directives, 56
PSYCHIATRIC SERV. 592 (2005) (most common contents included instructions for deescalating a crisis, listing of preferred medications,
refusing electroconvulsive therapy, and preferring alternatives to hospitalization).
273. Debra Srebnik et al., Assessing Competence to Complete Psychiatric Advance Directives with the Competence Assessment Tool for

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Psychiatric Advance Directives, 45 COMPREHENSIVE PSYCHIATRY 239 (2004).
274. Id. at 242 (Table 2).
275. Backlar et al., supra note 265.
276. Srebnik et al., supra note 263, at 244.
277. Eric B. Elbogen et al., Competence to Complete Psychiatric Advance Directives: Effects of Facilitated Decision Making, 31 LAW &
HUM. BEHAV. 275 (2007). Gains among individuals in an intervention group occurred primarily in the area of reasoning about PADs. Id. at
285–86.
278. Heather Zelle et al., Advance Directives in Mental Health Care: Evidence, Challenges and Promise, 14 WORLD PSYCHIATRY 278
(2015).
279. Patricia Keith-Spiegel, Children and Consent to Participate in Research, in CHILDREN’S COMPETENCE, supra note 23, at 179,
180–81.
280. A notable and relatively common example would be drug research, in which the effect of new drugs on humans and particular groups
(e.g., children) is not completely predictable from results obtained in animal studies.
281. 32 JAMA 1090 (1946).
282. 45 C.F.R. § 46 (effective, 2005).
283. See, e.g., 10 C.F.R. § 745 (2005) (Dep’t of Energy); 16 C.F.R. § 1028 (2005) (Consumer Product Safety Comm’n); 21 C.F.R. §§ 50,
56 (2005) (Food & Drug Admin.). For analysis of the relevant issues, see INSTITUTE OF MEDICINE OF THE NATIONAL
ACADEMIES, ETHICAL CONDUCT OF CLINICAL RESEARCH INVOLVING CHILDREN (2004); INSTITUTE OF
MEDICINE OF THE NATIONAL ACADEMIES, ETHICAL CONSIDERATIONS FOR RESEARCH INVOLVING PRISONERS
(2007).
284. Although the Health Insurance Portability and Accountability Act (HIPAA) provides some protections for health data collected during
research purposes, it does not apply to research data that are not protected health information or are used outside a covered entity. This means
that disclosure of certain types of research data (e.g., about child abuse, drug use, or sexual behavior) could place participants at risk for
stigmatization, various kinds of discrimination (e.g., getting insurance), or criminal prosecution. For this reason, researchers sometimes obtain
(and IRBs sometimes require use of) certificates of confidentiality to safeguard participants’ privacy. Peter M. Currie, Balancing Privacy
Protections with Efficient Research: Institutional Review Boards and the Use of Certificates of Confidentiality, 27 IRB. ETHICS & HUM. RES.
7 (Sept.–Oct. 2005); Emily Haney-Caron et al., Safe from Subpoena?: The Importance of Certificates of Confidentiality to the Viability and Ethics
of Research, 48 AKRON L. REV. 349 (2015).
There has been significant controversy over whether the law should create a “privilege” for researchers—permitting the researchers to resist
legal efforts, primarily through subpoena, to discover underlying research data (including raw data such as subjects’ names, notes, etc.). For a
discussion and argument that such a privilege should not be available, see Geoffrey Stone, Above the Law: Research Methods, Ethics and the Law
of Privilege (2002), available at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1010&context=public_law_and_legal_theory
(accessed Apr. 24, 2017). For arguments in favor of extending privilege to researchers and a review of the relevant law, see Robert H.
McLaughlin, From the Trench and Tower: Should Social Science Research Be Privileged? 24 LAW & SOC. INQUIRY 927 (1999). A Canadian
court recognized a researcher privilege in 2014 in a decision that emphasized application of any privilege had to be made (as is ordinarily the
case) on a case-by-case basis. Wayne Renke, Researcher Privilege Recognized (This Time): A Comment on Parent and Bruckert v. The Queen, 3
HEALTH L. REV. 5 (2014).
285. 45 C.F.R. § 45.116(a) (2009).
286. 45 C.F.R. § 45.116(b) (2009).
287. 45 C.F.R. § 46.116(d) (2009). Disclosure may also be waived by the IRB for research or a demonstration project conducted by or
subject to the approval of state or local government officials and “designed to study, evaluate, or otherwise examine (i) public benefit or service
programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or
procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs”—but only if the research
could not be carried out without the waiver. 45 C.F.R. § 46.116(c) (2009).
288. 45 C.F.R. § 46.102(i) (2009). For discussions of the minimal-risk concept, particularly in connection with children, see Loretta M.
Kopelman, Pediatric Research Regulations under Legal Scrutiny: Grimes Narrows Their Interpretation, 30 J.L. MED. & ETHICS 38 (2002);
Carrie Fisher & Thomas Keens, Participation of Children in Research, 26 WHITTIER L. REV. 823 (2005). For discussion of minimal-risk in
the context of social sciences research, see NAT’L RESEARCH COUNCIL, PROPOSED REVISIONS TO THE COMMON RULE
FOR THE PROTECTION OF HUMAN SUBJECTS IN THE BEHAVIORAL AND SOCIAL SCIENCES (2014) [hereinafter NAT’L
RESEARCH COUNCIL, PROPOSED REVISIONS].
289. NAT’L RESEARCH COUNCIL, PROPOSED REVISIONS, supra note 288. For the text of the proposal, see
https://www.nap.edu/read/18614/chapter/1, at 61–68.

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 290. NAT’L COMM’N FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL
RESEARCH, THE BELMONT REPORT: ETHICAL PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF HUMAN
SUBJECTS OF RESEARCH (1979).
291. In addition, there are special regulations for research on fetuses, pregnant women, and in vitro fertilization. 45 C.F.R. § 46(B) (1983).
292. 45 C.F.R. § 46.306.
293. 45 C.F.R. § 46.305(a)(2).
294. 45 C.F.R. §§ 46.402(b), 46.402(c), and 46.408.
295. 45 C.F.R. §§ 46.405, 46.406, and 46.407.
296. 45 C.F.R. § 46.409.
297. 45 C.F.R. § 46.408(c).
298. Proposed regulations were published at 43 Fed. Reg. 53,590 (1978) but were never adopted. These would have paralleled the regulations
for children, with requirements for assent to minimal-risk research, increased supervision, and various forms of substituted consent in risky
research situations. Critics of the proposed regulations regarded them as insufficiently respectful of patients’ autonomy. See, e.g., Barbara Stanley
& Michael Stanley, Psychiatric Patients in Research: Protecting Their Autonomy, 22 COMPREHENSIVE PSYCHIATRY 420 (1981).
299. Nat’l Bioethics Advisory Comm’n, Research Involving Persons with Mental Disorders That May Affect Decisionmaking Capacity (1998),
available at https://bioethicsarchive.georgetown.edu/nbac/briefings/nov98/capacity.pdf.
300. For a review, see Umesh Candra Gupta & Saifuddin Kharawala, Informed Consent in Psychiatry Clinical Research: A Conceptual Review
of Issues, Challenges, and Recommendations, 3 PERSPECTIVES CLINICAL RES. 8 (2012)
301. See, e.g., Scott Y.H. Kim & Eric D. Caine, Utility and Limits of the Mini Mental State Examination in Evaluating Consent Capacity in
Alzheimer’s Disease, 53 PSYCHIATRIC SERVICES 1322 (2002). The Mini-Mental State Exam is insensitive to deficits detectable with
other measures. Kristen L. Votruba et al., Cognitive Deficits in Healthy Elderly Population With “Normal” Scores on the Mini-Mental State
Examination, 29 J. GERIATRIC PSYCHIATRY & NEUROLOGY 126 (2016).
302. See, e.g., Elyn Saks et al., The California Scale of Appreciation: A New Instrument to Measure the Appreciation Component of Capacity to
Consent to Research, 10 AM. J. GERIATRIC PSYCHIATRY 166 (2002); Luis H. Zayas et al., Capacity-to-Consent to Psychiatric Research:
Development and Testing of a Preliminary Screening Tool, 15 RES. ON SOC. WORK PRAC. 545 (2005); PAUL S. APPELBAUM &
THOMAS GRISSO, MACCAT-CR: MACARTHUR COMPETENCE ASSESSMENT TOOL FOR CLINICAL RESEARCH
(2001). For reviews, see Sturman, supra note 227, and Laura B. Dunn et al., Assessing Capacity to Consent to Treatment and Research: A Review
of Instruments, 163 AM. J. PSYCHIATRY 1323 (2006).
303. See supra text accompanying notes 216–40.
304. Scott Y. H. Kim et al., Assessing the Competence of Persons with Alzheimer’s Disease in Providing Informed Consent for Participation in
Research, 158 AM. J. PSYCHIATRY 712 (2001) (reporting that 82% of patients were rated as lacking adequate capacity in at least one
competence-related ability). See also Jeanne M. Sorrell & Pamela R. Cangelosi, Respecting Vulnerability: Informed Consent in Persons with
Alzheimer’s Disease, 9 S. ONLINE J. NURSING RES. (2009), available at
http://www.resourcenter.net/images/snrs/files/sojnr_articles2/Vol09Num04Art02.pdf (accessed July 19, 2016).
305. Barton W. Palmer et al., Assessment of Capacity to Consent to Research among Older Persons with Schizophrenia, Alzheimer Disease, or
Diabetes Mellitus: Comparison of a 3-Item Questionnaire with a Comprehensive Standardized Capacity Instrument, 62 ARCHIVES GEN.
PSYCHIATRY 726 (2005).
306. Paul G. Stiles et al., Improving Understanding of Research Consent Disclosures among Persons with Mental Illness, 52 PSYCHIATRIC
SERV. 780 (2001).
307. William T. Carpenter et al., Decisional Capacity for Informed Consent in Schizophrenia Research, 57 ARCHIVES GEN.
PSYCHIATRY 533 (2000); Jeffrey A. Kovnick et al., Competence to Consent to Research among Long-Stay Inpatients with Chronic
Schizophrenia, 54 PSYCHIATRIC SERV. 1247 (2003); David J. Moser et al., Capacity to Provide Informed Consent for Participation in
Schizophrenia and HIV Research, 159 AM. J. PSYCHIATRY 1201 (2002); Stiles et al., supra note 306. For a review, see Laura B. Dunn,
Capacity to Consent to Research in Schizophrenia: The Expanding Evidence Base, 24 BEHAV. SCI. & L. 431 (2006).
308. Paul S. Appelbaum et al., Competence of Depressed Patients for Consent to Research, 156 AM. J. PSYCHIATRY 1380 (1999); Stiles et
al., supra note 306.
309. Barton W. Palmer et al., Changes in Capacity to Consent over Time in Patients Involved in Psychiatric Research, 202 BRIT. J.
PSYCHIATRY 454 (2013).
310. In one study, for example, 80% of the participants with schizophrenia demonstrated adequate capacity to consent to a hypothetical
clinical drug trial. See Moser et al., supra note 307.
311. See studies cited supra note 307.
312. Id. See also Inés Morán-Sánchez et al., Assessment of Capacity to Consent to Research Among Psychiatric Outpatients: Prevalence and

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Associated Factors, 87 PSYCHIATRIC Q. 89, 97 (2016) (scores on MacCAT-CR correlated with measures of cognitive functioning, not
severity of psychopathology).
313. Carpenter et al., supra note 307, at 537.
314. Donna A. Wirshing et al., Informed Consent: Assessment of Comprehension, 155 AM. J. PSYCHIATRY 155 (1998); Laura B. Dunn et
al., Enhancing Comprehension of Consent for Research in Older Patients with Psychosis: A Randomized Study of a Novel Consent Procedure, 158
AM. J. PSYCHIATRY 1911 (2001); Donna A. Wirshing et al., A Videotape Intervention to Enhance the Informed Consent Process for Medical
and Psychiatric Treatment Research, 162 AM. J. PSYCHIATRY 186 (2005); David J. Moser et al., Using a Brief Intervention to Improve
Decisional Capacity in Schizophrenia Research, 32 SCHIZOPHRENIA BULL. 116 (2006). See also Carpenter et al., supra note 307, and Stiles
et al., supra note 306.
315. Paul S. Appelbaum, Missing the Boat: Competence and Consent in Psychiatric Research, 155 AM. J. PSYCHIATRY 1486 (1998).
316. Palmer et al., supra note 309.
317. Lois Weithorn, Children’s Capacities to Decide about Participation in Research, 5(2) IRB: REV. HUM. SUBJECTS RES. 1 (1983),
and studies cited therein.
318. INFORMED CONSENT, supra note 100, at 269–270; Rona Abramovitch et al., Children’s Capacity to Agree to Psychological
Research: Knowledge of Risks and Benefits and Voluntariness, 5 ETHICS & BEHAV. 25 (1995).
319. Abramovitch et al., supra note 318, at 36–45.
320. Laura B. Dunn et al., Assessment of Therapeutic Misconception in Older Schizophrenia Patients with a Brief Instrument, 163 AM. J.
PSYCHIATRY 500 (2006).
321. This term was introduced in Paul S. Appelbaum et al., The Therapeutic Misconception: Informed Consent in Psychiatric Research, 5
INT’L J.L. & PSYCHIATRY 319 (1982).
322. For example, one recent report examined 88 studies that evaluated the prevalence of this phenomenon, finding “variable and high rates .
. . (ranging from 12.5% to 86%) in some psychiatry research populations.” Ivan S.K. Thong et al., Therapeutic Misconception in Psychiatry
Research: A Systematic Review, 14 CLINICAL PSYCHOPHARMACOLOGY & NEUROSCI. 17 (2016).
323. Dunn, supra note 307, at 437.
324. Dunn et al., supra note 302, at 1331.
325. The MacCAT-CR has been the subject of a number of studies. A good discussion of the instrument and underlying validation data may
be found in EVALUATING COMPETENCIES, supra note 18, at 429–434.
326. Carpenter et al., supra note 307, reported high intraclass correlation coefficients for the Understanding (.98), Appreciation (.84), and
Reasoning (.84) components of the MacCAT-CR. Kim and colleagues, supra note 304, reported high interscorer (same subject interview rated
by two scorers) reliabilities (.93 for Understanding, .90 for Appreciation, and .80 for Reasoning), although interexaminer (separate interviews of
the same subject by different examiners) reliabilities were somewhat lower (.77, .68, and .82, respectively).
327. See Kim et al., supra note 304, and references supra note 307. For a description of the MacCAT-CR’s usefulness in measuring
children’s competence to consent to research, see Hein et al., supra note 239.
328. See references supra note 210–13.
329. See Saks, supra note 5, and accompanying text.
330. See, e.g., Dunn et al., supra note 320.
331. See Saks et al., supra note 302.
332. Daniel C. Marson et al., Testamentary Capacity and Undue Influence in the Elderly: A Jurisprudent Therapy Perspective, 28 LAW &
PSYCHOL. REV. 71 (2004).
333. Most state statutes simply use this phrase or some variation on it and provide no further definition. 11 AM. JUR. Testamentary
Capacity §§ 159, 161 (1985).
334. This test was first established in the 19th-century British case of Banks v. Goodfellow, 1870 5 Q.B. 549. For a discussion of this case,
the evolution of the doctrine of testamentary capacity, and some reflections on the role of the expert witness in assisting the courts in
determining whether capacity exists, see Willis Spaulding, Testamentary Competency: Reconciling Doctrine with the Role of the Expert Witness, 9
LAW & HUM. BEHAV. 113 (1985), and Kenneth Shulman et al., Contemporaneous Assessment of Testamentary Capacity, 21 INT’L
PSYCHOGERIATRICS 433 (2009).
335. Marson et al., supra note 332, at 77.
336. 79 AM. JUR. 2d Wills § 71 at 329 (1975) [hereinafter Wills].
337. See generally id. §§ 77–101.
338. For a discussion, see 18 AM. JUR. 2d Mentally Disordered Testator’s Execution of Will during Lucid Interval § 1 (1979).
339. Wills, supra note 336, § 87, at 341. In the case on which Case Study 11.4 is based, the court invalidated the will. In re Klein’s Estate,
183 P.2d 518 (Wash. 1947).

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 340. THOMAS SZASZ, LAW, LIBERTY AND PSYCHIATRY 75–76 (1963). A similar view is expressed in Note, Testamentary
Capacity in a Nutshell: A Psychiatric Reevaluation, 18 STAN. L. REV. 1119 (1996). But see M. C. Slough, Testamentary Capacity: Evidentiary
Aspects, in 2 LANDMARK PAPERS ON ESTATE PLANNING: WILLS, ESTATES, AND TRUSTS 594, 610–11 (Arthur Winard ed.,
1968).
341. For a detailed review of the law on this difficult issue, see Thomas E. Simmons, Testamentary Capacity, Undue Influence and Insane
Delusions, 60 S.D. L. REV. 175 (2015).
342. Krischbaum v. Dillon, 567 N.E.2d 1291, 1298 (Ohio 1991), quoting West v. Henry, 184 N.E.2d 200, 202 (Ohio 1962).
343. RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 8.3 cmt. h.
344. John Langbein, Living Probate: The Conservatorship Model, 77 MICH. L. REV. 63, 67 (1978).
345. OHIO REV. CODE ANN. § 2107.081 (West 2015); N.D. CENT. CODE ANN. § 30.1-08.1-01 (West 2015); ALASKA STAT.
ANN. § 13.12.530 (West 2015); ARK. CODE ANN. § 28-40-202 (West 2015), 5 N.C. GEN. STAT. ANN. § 28A-2B-1 (West 2015). At
least one court has ruled that in the absence of an explicit statute permitting an “antemortem” action, a testator could not seek a
contemporaneous judicial declaration of sound mind because of the possibility that the testator could later change his mind; in the court’s view,
there was no justiciable controversy, and so the court could not grant the requested order. Burcham v. Burcham, 1 P. 3d 756 (Colo. Ct. App.
2000). For further discussion of state laws and cases on the topic, see Jacob Arthur Bradley, Antemortem Probate Is a Bad Idea: Why
Antemortem Probate Will Not Work and Should Not Work (Jan. 27, 2016), available at http://ssrn.com/abstract=2723433.
346. For a discussion of various strategies designed to protect a will from challenge, see Dennis Collins, Avoiding a Will Contest: The
Impossible Dream?, 34 CREIGHTON L. REV. 7 (2000) (the author particularly recommends video-recording the testator).
347. See, e.g., Ryan C.W. Hall et al., Testamentary Capacity: History, Physicians’ Role, Requirements, and Why Wills Are Challenged, 17
CLINICAL GERIATRICS 18 (June 2009); Mossman & Farrell, supra note 65, at 544–46; Carmelle Peisah & Kenneth I. Shulman,
Testamentary Capacity, in CIVIL CAPACITIES IN CLINICAL NEUROPSYCHOLOGY: RESEARCH FINDINGS AND
PRACTICAL APPLICATIONS 95 (George J. Demakis ed., 2015).
348. Spaulding, supra note 334, at 138.
349. These examples are adapted from Mossman & Farrell, supra note 65, at 546 (Table 4).
350. Sources to consider include any previous wills or other legal documents with likely relevance, reliable listings of the testator’s assets (e.g.,
financial records), records of mental health and other medical care (including medications), and records documenting academic and employment
history. Mossman & Farrell, supra note 65, at 544 (Table 3).
351. That is, “whether the disposition of the property is such that a reasonable person would regard it as unnatural, unjust, or unfair.”
RESTATEMENT (THIRD) OF PROP.: WILLS & OTHER DONATIVE TRANSFERS § 8.3 cmt. h (8).
352. Patricia R. Recupero et al., Gender Bias and Judicial Decisions of Undue Influence in Testamentary Challenges, 43 J. AM. ACAD.
PSYCHIATRY & L. 60 (2015).
353. Thomas G. Gutheil, Common Pitfalls in the Evaluation of Testamentary Capacity, 35 J. AM. ACAD. PSYCHIATRY & L. 514
(2007).

Chapter 12

1. JEFFREY O’CONNELL & R. HENDERSON, TORT LAW: NO-FAULT AND BEYOND 1–2 (1975). The authors provide an
excellent summary of the development of the principle of “fault” as a determinant in adjudicating the compensability of injuries.
2. Id. at 3–6. Other ancient legal systems also viewed tort and criminal sanctions in ways that, from the modern U.S. vantage point, appear
mixed. See, e.g. Benjamin Shmueli & Yuval Sinai, Liability under Uncertain Causation?: Four Talmudic Answers to a Contemporary Tort
Dilemma, 30 B.U. INT’L L.J. 449, 467–68 (2012) (noting that “in general ancient law, particularly in Talmudic law, criminal and civil law were
mixed. . . . For example, . . . compensation for bodily harm, although intended to restore the injured to his state before the injury, serves other
purposes as well and has an aspect of punishment, which results in the application of a portion of penal law to the laws of injury [citations
omitted]”).
3. RESTATEMENT (THIRD) OF THE LAW OF TORTS: PHYSICAL AND EMOTIONAL HARM § 19 cmt. a, at 215 (2010)
(hereafter, RESTATEMENT (THIRD)).
4. The development of this and other tort doctrines is covered in an excellent book: G. EDWARD WHITE, TORT LAW IN AMERICA:
AN INTELLECTUAL HISTORY (2003).
5. See generally The American Law Institute’s Reporters’ Study on Enterprise Responsibility for Personal Injury, 30 SAN DIEGO L. REV. 371
(1993). One such system is based on the concept of “enterprise liability,” which would require compensation to any individual suffering injury
from the “enterprise” in question, regardless of fault. This type of system has been proposed as a substitute for medical malpractice litigation.
See, e.g., Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 TEX. L.

1061
REV. 1595 (2002). New Zealand, Sweden, and Denmark have implemented such systems with resulting reductions in liability costs and
improved victim compensation. Michelle M. Mello et al., Administrative Compensation for Medical Injuries: Lessons from Three Foreign
Systems, COMMONWEALTH FUND (July 2011), available at http://www.commonwealthfund.org/Publications/Issue-
Briefs/2011/Jul/Medical-Injuries.aspx.
6. 82 AM. JUR. 2D Workmen’s Compensation, 120, § 1 (2007) [hereinafter Workmen’s Compensation].
7. Id.
8. Id.
9. Throughout this chapter, we have used the term “mental injury” rather than “psychological injury” or “psychiatric injury,” because the latter
terms might suggest that these proceedings are limited to mental health professionals. In fact, many clinical professionals may be involved in
evaluating certain types of mental injuries. Evaluating mental injuries associated with head trauma, for example, often requires input from
neuroradiologists, neuropsychologists, internists, neurologists, psychiatrists, and psychologists. Jeffrey V. Rosenfeld et al., Blast-Related
Traumatic Brain Injury, 12 LANCET NEUROLOGY 882 (2013).
10. Seth A. Seabury et al., Medical Malpractice Reform: Noneconomic Damages Caps Reduced Payments 15 Percent, with Varied Effects by
Specialty, 10 HEALTH AFF. 1377 (2014).
11. The Supreme Court has recognized that Title VII’s prohibition of discrimination based on gender may be a basis for a sexual harassment
lawsuit. See, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)
(recognizing same-sex harassment claims). And the Civil Rights Act, which allows discrimination on the basis of sex and race, among other
traits, explicitly authorizes the award of compensatory damages not just for pecuniary losses, but also for “emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981 a(b)(3). As a result, damage claims
for emotional or mental injury associated with employment claims, including sexual harassment claims, are now common. For an overview, see
ANJA ANGELICA CHAN, WOMEN AND SEXUAL HARASSMENT: A PRACTICAL GUIDE TO THE LEGAL
PROTECTIONS OF TITLE VII AND THE HOSTILE ENVIRONMENT CLAIM (2013). For a review of psychological issues relevant
to sex harassment claims, see Chelsea R. Willness et al., A Meta-Analysis of the Antecedents and Consequences of Workplace Sexual Harassment,
60 PERSONNEL PSYCHOL. 127 (2007); WILLIAM E. FOOTE & JANE GOODMAN-DELAHUNTY, EVALUATING SEXUAL
HARASSMENT: PSYCHOLOGICAL, SOCIAL, AND LEGAL CONSIDERATIONS IN FORENSIC EXAMINATIONS (2005);
Eliza Pavalko et al., Does Perceived Discrimination Affect Health?: Longitudinal Relationships between Work Discrimination and Women’s
Physical and Emotional Health, 44 J. HEALTH & SOC. BEHAV. 18 (2003).
12. Robert L. Rabin, Emotional Distress in Tort Law: Themes of Constraint, 44 WAKE FOREST L. REV. 1197 (2009).
13. Readers who seek an in-depth understanding of workers’ compensation law should consult LEX K. LARSON & ARTHUR LARSON,
WORKERS’ COMPENSATION LAW: CASES, MATERIALS, AND TEXT (4th ed. 2008) [hereinafter LARSONS’].
14. Note, Determining the Compensability of Mental Disabilities, 55 U.S.C. L. REV. 193, 195 (1981).
15. William Keoniakelelani Shultz, Mitchell v. State and HRS § 386–3: Worker’s Compensation Reform in the State of Hawaii, 21 HAW. L.
REV. 807 (1999).
16. LARSONS’, supra note 13, at § 2.05.
17. Id. The development of workers’ compensation law was also influenced by the experience of railroad workers, who often were injured on
the job and experienced difficulty in obtaining compensation through traditional tort remedies. Edward M. Brown, Regulating Damage Claims
for Emotional Injuries before the First World War, 8 BEHAV. SCI. & L. 421 (1990).
18. Ellen Smith Pryor, Mental Disabilities and the Disability Fabric, in MENTAL DISORDER, WORK DISABILITY AND THE LAW
153, 157 (Richard J. Bonnie & John Monahan eds., 1996).
19. LARSONS’, supra note 13, at § 1.01.
20. Id.
21. Workmen’s Compensation, supra note 6, at § 6; O’CONNELL & HENDERSON, supra note 1, at 74.
22. NAT’L ACADEMY OF SOCIAL INSURANCE, WORKERS’ COMPENSATION: BENEFITS, COVERAGE AND COSTS,
2010 (2012).
23. O’CONNELL & HENDERSON, supra note 1, at 74.
24. Workmen’s Compensation, supra note 6, at § 6.
25. Id. at § 406.
26. Id. at § 50.
27. LARSONS’, supra note 13, at § 127.11.
28. Workmen’s Compensation, supra note 6, at § 549.
29. Id. at § 571.
30. Lawrence Joseph, The Causation Issue in Workers’ Compensation Mental Disability Cases: An Analysis, Solutions and a Perspective, 36

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VAND. L. REV. 263, 286 (1983).
31. Workmen’s Compensation, supra note 6, at § 572.
32. Pryor, supra note 18, at 186–87.
33. “The purpose of the workers’ compensation acts is not limited to the payment of compensation to injured employees during the period of
their incapacity, but extends as well to persons who are dependent upon such an employee for support, and who are deprived of such support by
reason of his death. . . . [I]t may be said that dependency means that the claimant looked to and relied on the contributions of the worker for
support and maintenance, in whole or in part.” Workmen’s Compensation, supra note 6, at § 161.
34. LARSONS’, supra note 13, at § 1.03.
35. Id.
36. Compensable diseases and injuries in general have been very broadly defined and include nearly all diseases or conditions, as long as the
disease or condition arises in the course of employment. See generally Workmen’s Compensation, supra note 6.
37. Id. at § 239.
38. Id.
39. LARSONS’, supra note 13, at § 3.
40. Id.
41. Id. at § 3.05.
42. For an argument against the positional-risk rule and a good overall review of statutory and case law on the topics of positional and
increased risk, see Matt Hlinak, In Defense of the Increased-Risk Doctrine in Workers’ Compensation, 7 J. BUS. & ECON. RES. 57 (2009).
43. Workmen’s Compensation, supra note 6, at § 240.
44. Note, supra note 14, at 210–11.
45. Workmen’s Compensation, supra note 6, at § 303.
46. Id. at § 300.
47. Id. at § 333.
48. LARSONS’, supra note 13, at §§ 43.01-43.03
49. Id. at §§ 38.80, 38.81.
50. Id.
51. Rebecca J. Mitchell & Paul Bates, Measuring Health-Related Productivity Loss, 14 POPULATION HEALTH MGMT. 93 (2011).
52. Paul Clauser & Denise Elliott, Understanding Workers’ Compensation Mental Injury Claims: Part 1, PENNSYLVANIA LABOR &
EMPLOYMENT BLOG (June 22, 2015), available at http://www.palaborandemploymentblog.com/2015/06/articles/workers-
compensation/understanding-workers-compensation-mental-injury-claims-part-1.
53. Right to Workers’ Compensation for Emotional Distress or Like Injury Suffered by Claimant as Result of Nonsudden Stimuli—Right to
Compensation Under Particular Statutory Provisions, 97 A.L.R. 5th 1 (2005) [hereinafter AMERICAN LAW REPORTS].
54. Id.
55. State-by-state reviews of workers’ compensation and recovery for emotional injury can be found in AMERICAN LAW REPORTS,
supra note 53, and in LARSONS’, supra note 13, at § 56.05.
56. LARSONS’, supra note 13, at § 56.03.
57. Id. at § 56.01.
58. Id. at § 56.03.
59. Joseph, supra note 30, at 288.
60. Id. at n.104. The case citations from which these examples derive are omitted here but are supplied in the source. See also Worker’s
Compensation—Mental State or Nervous Condition Following Accident or Injury as Compensable, 86 A.L.R. 961 (2016) (canvassing case law
nationally and state by state); Right to Workers’ Compensation for Emotional Distress or Like Injury, 84 A.L.R. 5th 249 (2016) (cumulative
supplements).
61. LARSONS’, supra note 13, at § 56.02.
62. Id.
63. Joseph, supra note 30, at 291.
64. LARSONS’, supra note 13, § 56.06. Relying on LARSONS’, Robinson divides the states into four groups with respect to compensating
for so-called “mental–mental” injury. Thomas A. Robinson, The Post-Traumatic Stress Disorder Dilemma for Workers’ Compensation Claims,
LEXISNEXIS LEGAL NEWSROOM, WORKERS’ COMPENSATION LAW (June 20, 2014), available at
https://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2014/06/21/the-post-
traumatic-stress-disorder-dilemma-for-workers-compensation-claims.aspx?Redirected=true.

Group One: A number of states, including Alabama, Arkansas, Connecticut, Florida, Georgia, Idaho, Kentucky, Minnesota, Montana,

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 Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, and Wyoming, do not award compensation for mental–mental claims, including
posttraumatic stress disorder (PTSD), under any circumstances.
Group Two: Mental–mental cases are compensable, but only if the stimulus is “unusual.” Colorado, Illinois, Iowa, Louisiana, Maine,
Mississippi, Missouri, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, and Vermont fall within
this group. “Unusual” means unusual for a typical person holding the claimant’s job, rather than “unusual” for a member of the public. For
example, police officers are expected to handle some sorts of stress within their ordinary duties that would be unusual for most members of the
public. For a case that discusses this idea, see Diaz v. Illinois Workers’ Compensation Comm’n, Ill. App. 2d 120294WC (2013).
Group Three: Mental–mental cases are compensable, but only if the mental stimulus is sudden. Colorado, Louisiana, Maryland, Tennessee,
and Virginia fall within this group.
Group Four: Mental–mental cases are generally compensable, whether or not the mental stimulus is sudden or unusual. Alaska, California, and
Hawaii are generally included in this group.

65. See Robinson, supra note 64 (Group Two).

66. Id.
67. Sparks v. Tulane Med. Ctr. Hosp. & Clinic, 546 So. 2d 138 (La. 1989). Sparks’s job at Tulane Medical Center was to distribute medical
supplies. She complained during her tenure on several occasions that coworkers were using drugs. She became the target of vandalism on the
job, and a supervisor told her that a number of her coworkers wanted “to kick [her] butt.” Id. at 141. She then left work, complaining of
headaches and difficulty in sleeping. She also entered psychiatric care. Interestingly, she recovered damages despite statutory language that
required the injury to be the result of “violence to the physical structure of the body.”
68. LA. REV. STAT. ANN. § 23:1021(8)(b) (2004).
69. AMERICAN LAW REPORTS, supra note 53, at § 14.
70. Jose v. Equifax, Inc., 556 S.W.2d 82, 84 (Tenn. 1977). Tennessee still follows this rule. See Rhoads v. State, 2008 Tenn. LEXIS 564 *8
(Tenn. Aug. 26, 2008).
71. CAL. LAB. CODE § 3208.3(a)(b) (2005). Other states have also required claimants to show employment contributed to mental
impairment by a certain percentage, ranging from 10 to 75%. Pryor, supra note 18, at 44.
72. See N.M. Helvacian, Workers Compensation Paranoia: Mental Stress Claims, cited in Pryor, supra note 18, at 44–45 (finding, based on
data from the National Council of Compensation Insurance from 1979 through 1990, that the incidence of mental stress claims in ten states
increased through the mid-1980s, peaked in 1987, and has since abated); S. Marley, Tort Reform Tops Concerns, BUS. INSURANCE, April
18, 1994 (nationwide poll of risk managers showing that stress-related workers’ compensation claims are no longer on the list of major
concerns).
73. Annmarie Lipold, The Soaring Costs of Workers’ Comp, WORKFORCE 42 (Feb. 2003), available at
http://www.workforce.com/2003/01/30/the-soaring-costs-of-workers-comp (“Base rates, which are used by insurers to determine premiums,
are rising in a number of states, with some seeing double-digit increases: Hawaii, 15.8 percent; South Carolina, 20.3 percent; and Florida, 21.5
percent”).
74. Insurance Information Institute, Workers Compensation: The Topic (Jan. 2016), available at http://www.iii.org/issue-update/workers-
compensation.
75. Id.
76. Reforms have included legislation permitting the use of employee-paid deductibles in workers’ compensation policies, the establishment
of antifraud units, and efforts to achieve cost savings by permitting workers’ compensation systems to contract with a health service plan to be
the exclusive provider of medical care for work and nonwork injuries and illnesses. See generally Ruth A. Brown, Workers’ Compensation: State
Enactments in 1992, MONTHLY LAB. REV. 50 (Jan. 1993).
77. Edward A. Wise & J. Gayle Beck, Work-Related Trauma, PTSD, and Workers Compensation Legislation: Implications for Policy and
Practice, 7 PSYCHOL. TRAUMA 500 (2015).
78. Note, supra note 14, at 211.
79. North Carolina Industrial Comm’n, Information about the North Carolina Workers’ Compensation Act 6 (Jan. 1, 2016), available at
http://www.ic.nc.gov/bulletin.pdf.
80. For a discussion, see Florence Ye, Mandatory Mediation: The Extra Dose Needed to Cure the Malpractice Crisis, 7 CARDOZO J.
CONFLICT RESOL. 393 (2005–06). Studies suggest that mediation and alternative dispute resolution are successful in avoiding litigation
while leaving plaintiffs and defendants satisfied. David H. Sohn & B. Sonny Bal, Medical Malpractice Reform: The Role of Alternative Dispute
Resolution, 470 CLINICAL ORTHOPAEDICS & RELATED RES. 1370 (2012). For discussion of a strategy for avoiding workplace
disability, see William Shaw et al., A Literature Review Describing the Role of Return-to-Work Coordinators in Trial Programs and Interventions
Designed to Prevent Workplace Disability, 18 J. OCCUPATIONAL REHABILITATION 2 (2008).
81. Note, however, that some consider deterrence, rather than compensation, to be the most important goal of the tort system. See, e.g., Gary

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T. Schwartz, Reality in the Economic Analysis of Tort Law: Does Tort Law Really Deter?, 42 UCLA L. REV. 377 (1994).
82. WILLIAM PROSSER, LAW OF TORTS 324 (4th ed. 1971).
83. Id. at 327.
84. The Restatements are detailed, authoritative compilations and explanations of United States common law published by the American
Law Institute, a prestigious organization made up of prominent law professors, judges, and attorneys. The Restatements (many of which are in
their third editions) are updated frequently and cover 15 broad areas of the law, including torts, contracts, wills, and property.
85. RESTATEMENT (THIRD), supra note 3, § 7.
86. 17 Cal. 3d 425, 557 P.2d 334, 131 Cal. Rptr. 14 (1976).
87. Laura Downs, The Duty to Protect a Patient’s Right to Confidentiality: Tarasoff, HIV, and Confusion, 15 J. FORENSIC PSYCHOL.
PRACT. 160 (2015).
88. RESTATEMENT (THIRD), supra note 3, at § 3, at 29.
89. Id. The Restatement (Third) thus envisions a type of cost–benefit analysis: The “costs” are precautions, and the benefits are reductions in
risk that would result from implementing the precautions. Id. at § 3, cmt. e. This notion implements ideas first expressed in United States v.
Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), a decision authored by Judge Learned Hand. See Stephen R. Perry, Cost–Benefit Analysis
and the Negligence Standard, 54 VAND. L. REV. 893, 893–94 (2001). For further exploration of the historical and substantive dimensions of
the “reasonable person” standard, see Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. REV. 323 (2012).
90. An excellent discussion and commentary on this debate can be found in James A. Henderson, Why Negligence Dominates Tort, 50
UCLA L. REV. 377 (2002).
91. Roberson v. Counselman, 686 P.2d 149, 151 (1984). For a discussion of causation under the Third Restatement, see Ken Oliphant,
Uncertain Factual Causation in the Third Restatement: Some Comparative Notes, 92 TEXAS L. REV. 1685 (2014); David W. Robertson,
Causation in the Third Restatement: Three Arguable Mistakes, 44 WAKE FOREST L. REV. 1007 (2009); Mike Steenson, Minnesota
Negligence Law and the Restatement (Third) of Torts: Liability for Physical and Emotional Harm, 37 WM. MITCHELL L. REV. 1055 (2011).
92. RALPH SLOVENKO, PSYCHIATRY AND LAW 296 (1973) (quoting Lord Chancellor Francis Bacon).
93. Id. at 297.
94. Quoted in id. at 278.
95. Id. at 298.
96. RESTATEMENT (THIRD), supra note 3, at § 45, cmt. a.
97. Id. at § 4 cmt. c.
98. MARILYN MINZER ET AL., DAMAGES IN TORT ACTIONS § 40.05 (2005).
99. Fred Hellinger & William Encinosa, The Impact of State Laws Limiting Malpractice Damage Awards on Health Care Expenditures, 96
AM. J. PUB. HEALTH 1375 (2006) (describing caps and estimating that they reduced state health care expenditures by 3–4%). However, a
later review of multiple studies on the impact of damage caps on insurance premiums found “mixed results” at best. Kathryn Zeller & Lorian E.
Hardcastle, Do Damage Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review of Estimates and the Methods Used to
Produce Them, in RESEARCH HANDBOOK ON THE ECONOMICS OF TORTS (Jennifer Alden ed., 2012). The Florida Supreme
Court struck down a cap on wrongful death noneconomic damages on constitutional grounds. Estate of Michelle Evette McCall, 134 So. 3d.
894 (Fla. 2014).
100. Arthur C. Roberts & Allen P. Wilkinson, Developing a Positive Picture at Trial, 19(1) TRIAL 56 (1983).
101. William H. Theis, The Intentional Infliction of Emotional Distress: A Need for Limits on Liability, 27 DEPAUL L. REV. 275, 275
(1977).
102. For a review of different legal theories for the recovery of “intangible damages” (i.e., pain and suffering, emotional distress), see Robert
L. Rabin, Intangible Damages in American Tort Law: A Roadmap (Stanford Public Law Working Paper No. 2727885, Feb. 4, 2016), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2727885##.
103. Ronald E. Coins, Intentional Infliction of Emotional Distress—Escaping the Impact Rule in Arkansas, 35 ARK. L. REV. 533, 536–37
(1981).
104. Id. at 533–36.
105. Thomas F. Lambert, Jr., Tort Liability for Psychic Injuries: Overview and Update, 37 A.T.L.A. L.J. 1 (1978).
106. RESTATEMENT (SECOND) OF THE LAW OF TORTS, § 46.
107. RESTATEMENT (THIRD), supra note 3, at § 46 & cmt. m.
108. MINZER ET AL., supra note 98, at § 6.03.
109. Id. at § 6.40.
110. Id. at § 6.43, citing RESTATEMENT (SECOND) OF THE LAW OF TORTS.
111. Id. at §§ 6.44–6.45.

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 112. Id. at § 6.02, quoting Howell v. New York Post Co., 81 N.Y.2d 115, 612 N.E.2d 699, 702 (1993). For a later review of case law at the
time the Restatement (Third) was under consideration, noting the difficulty of prevailing on such claims, see Kenneth W. Simons, A
Restatement (Third) of Intentional Torts?, 48 ARIZ. L. REV. 1062 (2006). See also Rabin, supra note 102.
113. Id. at §§ 6.60–6.68.
114. Id. at § 6.139.
115. Annotation, 20 A.L.R. 4th 773, 777 (1983).
116. Annotation, 40 A.L.R. 3d 1290, 1293–94 (1971).
117. MINZER ET AL., supra note 98, at 6-144–6-145.
118. Brandi Monger, Case Note: Wyoming’s Adoption of Intentional Infliction of Emotional Distress in the Marital Context, 2 WYO. L. REV.
563 (2002).
119. Natalie Kay Fox, Through the Eyes and Ears of Children: A Significant Advance for Third Parties Exposed to Domestic Violence, 3 WYO.
L. REV. 735 (2003).
120. MINZER ET AL., supra note 98, at § 6.02.
121. Id. at § 6.02.
122. Id. at § 5.02.
123. Note, Administering the Tort of Negligent Infliction of Mental Distress: A Synthesis, 4 CARDOZO L. REV. 487, 488–89 & n.9 (1993).
124. For a review and an argument that the Restatement (Third) is too limited in its recognition of the tort of negligent infliction of
emotional distress, see John L. Diamond, Rethinking Compensation for Mental Distress: A Critique of the Restatement (Third) §§ 45–47, 16 VA.
J. SOC. POL’Y & L. 141 (2008).
125. See, e.g., Dillon v. Legg, 441 P.2d 912 (Cal. 1968). Although the California courts expanded Dillon considerably in the following 20
years, in Thing v. LaChusa, 771 P.2d 814 (Cal. 1989), the California Supreme Court reaffirmed that “in the absence of physical injury or
impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury
victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and;
(3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”
126. John J. Kircher, The Four Faces of Tort Law: Liability for Emotional Harm, 90 MARQ. L. REV. 789, 809 (2007). The exceptions are
Arkansas, see Hardy v. United Servs. Auto. Ass’n, 233 S.W.3d 165, 168 (Ark. 2006), and New Mexico, see Akutagawa v. Laflin, Pick & Heer,
P.A., 126 P.3d 1138, 1143 (N.M. Ct. App. 2005) (“New Mexico does not recognize negligent infliction of emotional distress as a cause of
action except for bystander liability”).
127. RESTATEMENT (THIRD), supra note 3, at § 47.
128. Id. at § 48.
129. Gregory Keating, Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 WAKE FOREST L. REV. 1131 (2009).
130. See Colin E. Flora, Special Relationship Bystander Test: A Rational Alternative to the Closely Related Requirement of Negligent Infliction
of Emotional Distress for Bystanders, 39 RUTGERS L. REV. 28 (2011–12); Dale Joseph Gilsinger, Recovery under State Law for Negligent
Infliction of Emotional Distress under Rule of Dillon v. Legg, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2D 912 (1968), or Refinements Thereof, 96
A.L.R. 5th 107 (2004).
131. Id.
132. Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (Me. 1982).
133. Shepard v. Superior Ct., 76 Cal. App. 3d 16, 142 Cal. Rptr. 612 (1977).
134. This case is discussed in detail in Helen L. Collins, Torts—Strict Product Liability—Recovery for Emotional Distress, 17 DUQ. L. REV.
535 (1978–79). For a discussion of products liability under the Restatement (Third) of Torts, see Victor E. Schwartz, The “Restatement (Third)
of Torts: Products Liability”: A Guide to Its Highlights, 34 TORT & INS. L.J. 85 (1998).
135. MINZER ET AL., supra note 98, at § 6.81.
136. Joseph Sanders, The Insubstantiailty of the “Substantial Factor” Test for Causation, 73 MO. L. REV. 63 (2008); Michele R. Kendus &
Lucas W.B. Chrencik, Enough Is Enough: Reining in the Substantial Factor Test for Causation, FOR DEF. 61 (Jan. 2013).
137. Roee Admon et al., A Causal Model of Post-Traumatic Stress Disorder: Disentangling Predisposed from Acquired Neural Abnormalities,
17 TRENDS COGNITIVE SCI. 337 (2013).
Readers interested in additional discussion of this topic should consult Gerald Young, Causality and Causation in Law, Medicine, Psychiatry,
and Psychology: Progression or Regression?, 1 PSYCHOL. INJ. & L. 161 (2008).
138. Cory J. Clark et al., Moral Coherence Processes: Constructing Culpability and Consequences, 6 CURRENT OPINION PSYCHOL.
123, 124–25 (2015) (providing several examples of how, “when motivated to blame and punish others, people construct morally culpable agents
by adjusting their beliefs about intention, causation and control”). For another viewpoint discussed in the context of ethical principles for
psychologists, see Shadi Gholizadeh & Vanessa L. Malcarne, Professional and Ethical Challenges in Determinations of Causality of Psychological

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Disability, 8 PSYCHOL. INJ. & L. 334, 341–45 (2015).
139. Karen Merrikin et al., Recognition of Psychologists in Workers’ Compensation Law, 18 PROF. PSYCHOL.: RES. & PRAC. 260
(1987).
140. See, e.g., CAL. LAB. CODE §§ 3209.3; N.Y. CODE CRIM. PROC. § 300.2(2); OR. REV. STAT. § 656.328.
141. Adam J. Goldyne, Minimizing the Influence of Unconscious Bias in Evaluations: A Practical Guide, 35 J. AM. ACAD. PSYCHIATRY
& L. 60 (2007).
142. Liza H. Gold et al., AAPL Practice Guideline for the Forensic Evaluation of Psychiatric Disability, 36 J. AM. ACAD. PSYCHIATRY &
L. S3, S9 (2008 supp.). Research shows that an alliance with the retaining side is common, develops rather easily, and even affects scoring of
seemingly objective scales and instruments. For a review of the empirical research on this phenomenon, see Daniel C. Murrie & Marcus T.
Boccaccini, Adversarial Allegiance among Expert Witnesses, 11 ANN. REV. L. & SOC. SCI. 37 (2015).
143. Goldyne, supra note 141, at 62–63.
144. Id. at 64. The biases mentioned in the text are somewhat specific to forensic assessment. But a whole set of (by now) well-established
biases affect all kinds of human thinking. The classic article in this area is Amos Tversky & Daniel Kahneman, Judgement under Uncertainty:
Heuristics and Biases, 185 SCIENCE 1124 (1974). For applications to the context of forensic assessment, see Charles L. Scott, Believing
Doesn’t Make It So: Forensic Education and the Search for Truth, 41 J. AM. ACAD. PSYCHIATRY & L. 18, 27–31 (2013), and sources cited
therein.
145. HENRY DAVIDSON, FORENSIC PSYCHIATRY 65 (2d ed. 1965).
146. Gold et al., supra note 142, at S25.
147. The AMA GUIDES, infra note 155, at 359, suggest that psychological testing—including measures of intelligence, personality, and
psychopathology—may be useful in establishing the existence of a mental disorder in this context.
148. Several publications describe survey findings concerning test use in forensic assessment. One of the first, by Boccaccini and Brodsky,
focused specifically on assessment of emotional injury and reported that two measures were used by most respondents: the Minnesota
Multiphasic Personality Inventory (94%) and the Wechsler Adult Intelligence Scale (54%). Marcus Boccaccini & Stanley Brodsky, Diagnostic
Test Usage by Forensic Psychologists in Emotional Injury Cases, 30 PROF. PSYCHOL.: RES. & PRAC. 3 (1999). For a recent survey of test
usage in forensic assessments and a recent discussion of test usage practices, see Tess M.S. Neal & Thomas Grisso, Assessment Practices and
Expert Judgment Methods in Forensic Psychology and Psychiatry: An International Snapshot, 41 CRIM. JUST. & BEHAV. 1406 (2014), and
Jennifer L. McLaughlin & Lisa Y. Kan, Test Usage in Four Common Types of Forensic Mental Health Assessment, 45 PROF. PSYCHOL.:
RES. & PRAC. 128 (2014).
149. KIRK HEILBRUN ET AL., FORENSIC MENTAL HEALTH ASSESSMENT 286 (2d ed. 2014).
150. Gold et al., supra note 142, at S17–S18; Scott, supra note 144, at 24–26.
151. Stuart A. Greenberg et al., The Utility of Psychological Testing in Assessing Emotional Damages in Personal Injury Litigation, 10
ASSESSMENT 411 (2003).
152. WILLIAM J. KOCH ET AL., PSYCHOLOGICAL INJURIES: FORENSIC ASSESSMENT, TREATMENT AND LAW 50–
52, 128–35 (2006).
153. Roberts & Wilkinson, supra note 100, at 58–59.
154. Stuart A. Greenberg, Personal Injury Examinations in Torts for Emotional Distress, in FORENSIC PSYCHOLOGY 233 (Alan
Goldstein ed., 2003).
155. As of mid-2016, the most recent edition was AM. MEDICAL ASS’N (AMA), GUIDES TO THE EVALUATION OF
PERMANENT IMPAIRMENT (6th ed. 2008) [hereinafter AMA GUIDES].
156. Andrew D. Whyman & Robert J. Underwood, The Psychiatric Examination in Workers’ Compensation, 21 PSYCHIATRIC ANNALS
36, 52 (1991).
157. Stuart A. Greenberg et al., Unmasking Forensic Diagnosis, 27 INT’L J.L. & PSYCHIATRY 1, 12 (2004).
158. AMA GUIDES, supra note 155, at 352, 358–60.
159. Id. at 347–48.
160. Statutes and administrative rules are not necessarily updated or revised when new editions of DSM appear. For example, DSM-5
appeared in May 2013, but the state of Washington did not mandate its use in workers’ compensation evaluations until October 2015.
WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES, MEDICAL EXAMINERS’ HANDBOOK 48–49 (Nov.
2015). As another example, CAL. LAB. CODE § 3208.3(a) provides that “[a] psychiatric injury shall be compensable if . . . it is diagnosed
using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Third
Edition—Revised, or the terminology and diagnostic criteria of other psychiatric diagnostic manuals generally approved and accepted nationally
by practitioners in the field of psychiatric medicine.” Obviously, this allows use of diagnostic schemes more current than DSM-III-R, which
appeared in 1987.

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 161. SLOVENKO, supra note 92, at 294.
162. That the traumatic stressor and presumed causal relationship to emotional disorder are inherent in the diagnosis made PTSD
particularly popular in civil litigation. Landy F. Sparr & Roger K. Pitman, PTSD and the Law, in HANDBOOK OF PTSD. SCIENCE AND
PRACTICE 449, 454 (Matthew J. Friedman et al. eds., 2007) (attributing the “geometric increase” in PTSD-based civil claims to the
expansion of DSM-IV’s criteria for PTSD, and noting that “PTSD posits a straightforward causal relationship that plaintiffs’ lawyers
welcome”); Allan A. Stone, Post-Traumatic Stress Disorder and the Law: Critical Review of the New Frontier, 21 BULL. AM. ACAD.
PSYCHIATRY & L. 23 (1993) (commenting, “No diagnosis in the history of American psychiatry has had a more dramatic and pervasive
impact on law and social justice than PTSD”).
163. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 271 (5th ed. 2013)
[hereinafter DSM-5]. For a recent review of PTSD and other trauma-related mental disorder, see Jessica J. Fulton et al., Trauma- and Stressor-
Related Disorders: Posttraumatic Stress Disorder, Acute Stress Disorder, and Adjustment Disorder, in PSYCHIATRY 1142 (Allen Tasman et al.
eds., 4th ed. 2015).
164. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 236 (3d ed. 1980).
165. D. M. Elliott, Traumatic Events: Prevalence and Delayed Recall in the General Population, 65 J. CONSULTING & CLINICAL
PSYCHOL. 811 (1997).
166. R. Shercliffe, Post-Traumatic Stress Disorder in a Civilian Context: A Quantitative Review (2001) (unpublished doctoral dissertation,
Simon Fraser University).
167. For further discussion of this process, see Paul S. Appelbaum, Commentary: DSM-5 and Forensic Psychiatry, 42 J. AM. ACAD.
PSYCHIATRY & LAW 136 (2014).
168. Andrew P. Levin et al., DSM-5 and Posttraumatic Stress Disorder, 42 J. AM. ACAD. PSYCHIATRY & L. 146 (2014), available at
http://www.jaapl.org/content/42/2/146.full.pdf. This article contains a handy chart comparing DSM-IV-TR and DSM-5 criteria.
169. The study cited is Dean G. Kilpatrick et al., National Estimates of Exposure to Traumatic Events and PTSD Prevalence Using DSM-IV
and DSM-5 Criteria, 26 J. TRAUMATIC STRESS 537 (2013) (nearly 90% of individuals reported past exposure to trauma, but lifetime
prevalence was 8.3% under DSM-5 criteria; the main reasons why individuals met DSM-IV but not DSM-5 criteria for PTSD were the
exclusion from DSM-5 of nonaccidental, nonviolent deaths as a qualifying stressor and the new requirement of having at least one avoidance
symptom).
170. Levin et al., supra note 168, at 152.
171. Id.
172. Id.
173. Id. at 153.
174. Id. at 155.
175. Id.
176. Id.
177. Charles W. Hoge et al., Unintended Consequences of Changing the Definition of Posttraumatic Stress Disorder in DSM-5: Critique and
Call for Action, 73 JAMA PSYCHIATRY 750 (2016), citing Matthew J. Friedman et al., Considering PTSD for DSM-5, 28 DEPRESSION &
ANXIETY 750, 753 (2011).
178. Hoge et al., supra note 177, at 752.
179. Matthew J. Friedman et al., Correcting Misconceptions about the Diagnostic Criteria for Posttraumatic Stress Disorder in DSM-5, 73
JAMA PSYCHIATRY 753, 754 (2016), citing Kilpatrick et al., supra note 169, at 542 (75% of persons who met DSM-IV criteria for PTSD
also met DSM-5 criteria; 88% of persons who met DSM-5 criteria for PTSD also met DSM-IV criteria).
180. Several websites provide lists of these instruments, including the National Center for PTSD (see
http://www.ptsd.va.gov/professional/assessment/all_measures.asp#list1).
181. Frank W. Weathers, Posttraumatic Stress Disorder Checklist, in ENCYCLOPEDIA OF PSYCHOLOGICAL TRAUMA 491
(Gilbert Reyes et al. eds., 2008).
182. Christy A. Blevins et al., The Posttraumatic Stress Disorder Checklist for DSM-5 (PCL-5): Development and Initial Psychometric
Evaluation, 28 J. TRAUMATIC STRESS 489 (2015).
183. Frank W. Weathers et al., Clinician-Administered PTSD Scale: A Review of the First Ten Years of Research, 13 DEPRESSION &
ANXIETY 132 (2001).
184. Blevins et al., supra note 182, at 497; see also Meaghan L. O’Donnell et al., Impact of the Diagnostic Changes to Post-Traumatic Stress
Disorder for DSM-5 and the Proposed Changes to ICD-11, 205 BRIT. J. PSYCHIATRY 230, 231–33 (2014) (very good internal consistency,
good diagnostic power, and differences in scoring algorithms or diagnoses using DSM-IV versus DSM-5 criteria).
185. Frank W. Weathers et al., THE CLINICIAN-ADMINISTERED PTSD SCALE FOR DSM-5 (CAPS-5) (2013), available at

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https://www.ptsd.va.gov/professional/assessment/adult-int/caps.asp.
186. See Dudley David Blake et al., The Development of a Clinician-Administered PTSD Scale, 8 J. TRAUMATIC STRESS 75 (1995).
According to Gray and colleagues, “the CAPS is recognized as the gold standard in PTSD symptom assessment.” Matthew J. Gray et al.,
Psychometric Properties of the Life Events Checklist, 11 ASSESSMENT 330 (2004).
187. For additional description, see http://www.ptsd.va.gov/professional/assessment/adult-int/caps.asp.
188. DSM-5, supra note 163, at 275.
189. James C. Jackson et al., Depression, Post-traumatic Stress Disorder, and Functional Disability in Survivors of Critical Illness in the BRAIN-
ICU Study: A Longitudinal Cohort Study, 2 LANCET RESPIRATORY MED. 369 (2014) (“[d]epression is five times more common than is
post-traumatic distress disorder after critical illness and is driven by somatic symptoms”); Atsushi Sakuma et al., Post-Traumatic Stress Disorder
and Depression Prevalence and Associated Risk Factors among Local Disaster Relief and Reconstruction Workers Fourteen Months after the Great
East Japan Earthquake: A Cross-Sectional Study, 15 BMC PSYCHIATRY 58 (2015) (“probable depression” is more than twice as common as
“probable PTSD”).
190. James J. Strain & Matthew J. Friedman, Considering Adjustment Disorders as Stress Response Syndromes for DSM-5, 28 DEPRESSION
& ANXIETY 818 (2011).
191. DSM-5, supra note 163, at 289.
192. DSM-5 allows the diagnosis of “persistent complex bereavement disorder” for individuals who suffer severe and persistent grief and
mourning reactions. In its chapter on “Conditions for Further Study,” DSM-5 explains that this syndrome typically involves a “persistent
yearning/longing for the deceased” more than 12 months after the individual’s death, accompanied by several other symptoms (e.g., difficulty
accepting the death, bitterness about the loss, avoiding reminders of the deceased, detachment from others, feeling life is meaningless). Id. at
789–90.
193. This phrase appears in VA. CODE ANN. § 8.01-52 and in W. VA. CODE §55-7-6(c)(1), but the principle applies in several other
United States jurisdictions. See, e.g., Hern v. Safeco Ins. Co., 125 P.3d 597, 609 (Mont. 2005), FLA. STAT. § 768.21(4) (2014), Tommy’s
Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986), Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); LA. CIV. CODE. ANN. art.
2315.2; OHIO REV. CODE § 2125.02(b); ARK. CODE ANN. § 16-62-102; DEL. CODE ANN. tit. 10, § 3724. Statutes in some
jurisdictions have been interpreted as precluding recovery for mental suffering, anguish, bereavement, or solace, Williams v. Monarch Transp.,
Inc., 470 N.W.2d 751 (Neb. 1991), though recovery is allowed in the case of a child’s death for “a parent’s investment in that child of money,
affection, guidance, security, and love,” Brandon v. County of Richardson, 624 N.W.2d 604, 625 (Neb. 2001).
194. WALTER BROMBERG, THE USES OF PSYCHIATRY IN THE LAW: A CLINICAL VIEW OF FORENSIC
PSYCHIATRY 318–22 (1979).
195. Id. at 332–33.
196. Id. at 334–35.
197. Id.
198. Robert H. Woody, The Pain/Intelligence Nexus in Personal Injury Litigation, 1979 MED. TRIAL TECH. Q. 249 (1979).
199. Although a constellation of disabling psychological phenomena need not have a formal diagnosis to be compensable, showing that an
individual’s pattern of emotional responses fits a pattern generally recognized by mental health professionals—which is what a psychiatric
diagnosis does—lends credibility to the clinician’s conclusions about the individual’s condition and prognosis. It “also serves as a check on
ungrounded speculation about mental disorders and about the functioning of a particular individual . . . at a past or future point in time.” DSM-
5, supra note 163, at 25.
200. Richard I. Frederick, Malingering/Cooperation/Effort, in COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL
TESTIMONY 229 (David Faust ed., 6th ed. 2012).
201. Gold et al., supra note 142, at S19.
202. DSM-5, supra note 163, at 726.
203. Gold et al., supra note 142, at S19; Douglas Mossman et al., Estimating the Accuracy of Neurocognitive Effort Measures in the Absence of
a “Gold Standard,” 24 PSYCHOL. ASSESSMENT 815, 818 (2012).
204. Gold et al., supra note 142, at S19.
205. Id.
206. Patricia R. Recupero, The Mental Status Examination in the Age of the Internet, 38 J. AM. ACAD. PSYCHIATRY & L. 15, 21–22
(2010); Graham D. Glancy et al., AAPL Practice Guideline for the Forensic Assessment, 43 J. AM. ACAD. PSYCHIATRY & L. S3, S10 (2015
supp.).
207. See, e.g., the recommendations in Gianni Pirelli et al., Using Internet and Social Media Data as Collateral Sources of Information in
Forensic Evaluations, 47 PROF. PSYCHOL.: RES. & PRACT. 12, 14–16 (2016).
208. Richard Rogers et al., Detection of Feigned Mental Disorders: A Meta-Analysis of the MMPI-2 and Malingering, 10 ASSESSMENT 160
(2003).

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 209. Samuel W. Hawes & Marcus T. Boccaccini, Detection of Overreporting of Psychopathology on the Personality Assessment Inventory: A
Meta-Analytic Review, 21 PSYCHOL. ASSESSMENT 112 (2009).
210. McLaughlin & Kan, supra note 148, at 129 (citing sources).
211. For a summary of this research, see A. IAN GLENDON & SHARON G. CLARKE, HUMAN SAFETY AND RISK
MANAGEMENT 207–34 (3d ed. 2016). For a summary of studies that relate attitudes, behavioral traits, and personality to the risk for traffic
accidents, see Patricia Delhomme et al., Personality Predictors of Speeding in Young Drivers: Anger vs. Sensation Seeking, 15 TRANSP. RES.
PART F. TRAFFIC PSYCHOL. & BEHAV. 654–55 (2012).
212. See, e.g., Odd Steffen Dalgard et al., Social Support, Negative Life Events, and Mental Health, 166 BRIT. J. PSYCHIATRY 29 (1995);
Gunnvor Marum et al., The Relationship between Negative Life Events, Psychological Distress and Life Satisfaction: A Population-Based Study, 23
QUALITY LIFE RES. 601 (2014).
213. The questionnaire and various supporting materials are available to the public (see
http://www.who.int/violence_injury_prevention/violence/activities/adverse_childhood_experiences/en).
214. See Maha Almuneef et al., Adverse Childhood Experiences, Chronic Diseases, and Risky Health Behaviors in Saudi Arabian Adults: A
Pilot Study, 38 CHILD ABUSE & NEGLECT 1787–88 (2014) (citing studies from developed countries); Robert F. Anda et al., Building a
Framework for Global Surveillance of the Public Health Implications of Adverse Childhood Experiences, 39 AM. J. PREV. MED. 93 (2010)
(summarizing research findings).
215. CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC), BEHAVIORAL RISK FACTOR SURVEILLANCE
SYSTEM, available at https://www.cdc.gov/brfss. The questionnaire is often revised. The 2015 version (publication date Dec. 29, 2014)
contained 679 questions. The CDC website also contains a host of data that may be useful for comparison purposes.
216. Jochen Hardt & Michael Rutter, Validity of Adult Retrospective Reports of Adverse Childhood Experiences: Review of the Evidence, 45 J.
CHILD PSYCHOL. & PSYCHIATRY 260 (2004).
217. Franklin G. Erbaugh & John D. Benjamin, Trauma and Mental Disorder, in TRAUMA AND DISEASE 56 (L. Bradhy & S. Kahn
eds., 1937).
218. Albert M. Drukteinis, Workers’ Compensation Evaluations, in CLINICAL GUIDE TO MENTAL DISABILITY EVALUATIONS
215, 227 (Liza H. Gold & Donna L. Vanderpool eds., 2013).
219. See, e.g., CAL. LAB. CODE § 4660.1(b), citing AMA. GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT
(5th ed. 2001).
220. Drukteinis, supra note 218, at 230.
221. AMA GUIDES, supra note 155, at 349. (It should be noted that mood disorders are no longer combined into a single category in
DSM-5; depressive and bipolar disorders now have their own categories. Also, PTSD is no longer classified as an anxiety disorder in DSM-5,
but is included in the new category of trauma- and stressor-related disorders.) The Guides list a number of disorders that are not ratable,
including several pain conditions, dissociative reactions, substance use disorders, and sleep disorders. Id.
222. Id. at 352. Each area of functioning is rated according to anchored scales; id. at 358–60 (Tables 14-11 through 14-16).
223. Id. at 355–57.
224. Id. at 352–53.
225. Gold et al., supra note 142, at S18.
226. Nieke A. Elbers et al., Do Compensation Processes Impair Mental Health?: A Meta-Analysis, 44 INJURY 674 (2013).
227. Id.
228. Id. at 681.
229. In addition to the sources already cited in the chapter, readers may wish to consult the entire volume within which Drukteinis’s chapter
appears: CLINICAL GUIDE TO MENTAL DISABILITY EVALUATIONS (Liza H. Gold & Donna L. Vanderpool eds., 2013).
230. Martin Blinder, The Abuse of Psychiatric Disability Determinations, 25 MED. TRIAL TECH. Q. 84, 84–85 (1978).
231. See Roberts & Wilkinson, supra note 100.

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Chapter 13

1. 42 U.S.C. §§ 12101–12213 (1994, 2008).

2. 135 CONG. REC. § 10770 n.1.
3. In reaching this conclusion, Congress relied in part on a survey conducted by Louis Harris and Associates in 1986. LOUIS HARRIS &
ASSOCIATES, THE ICD SURVEY OF DISABLED AMERICANS: BRINGING DISABLED AMERICANS INTO THE
MAINSTREAM. Harris and Associates found that nearly two-thirds of Americans with disabilities were unemployed. Id. at 47. They also
discovered many other examples of disenfranchisement among individuals with disabilities. For instance, nearly two-thirds of those with
disabilities had not attended a movie in the year prior to the survey. Id. at 37, 39. Other sources recounted other types of discrimination
encountered by people with disabilities; for example, children with Down’s syndrome were denied admission to a zoo because the zookeeper
thought the children would upset the chimpanzees. S. REP. NO. 116, 101st Cong., 1st Sess. 7 (1989); H.R. REP. NO. 485, 101st Cong., 2d
Sess., pt. 2, at 30 (1990).
4. Peter Blanck et al., Applicability of the ADA to “Ticket to Work” Employment Networks, 20 BEHAV. SCI. & L. 621 (2002) [hereinafter
Applicability of the ADA]; Peter Blanck, Civil War Pensions and Disability, 62 OHIO ST. L.J. 109 (2001). While the analysis that follows
examines legal and assessment issues, the Americans with Disabilities Act (ADA) has also given rise to an increasingly rich literature recounting
the stories of individuals with disabilities who have attempted to utilize the ADA in confronting discrimination. RAVI MALHOTRA &
MORGAN ROWE, EXPLORING DISABILITY IDENTITY AND DISABILITY RIGHTS THROUGH NARRATIVES: FINDING
A VOICE OF THEIR OWN (2013); RUTH O’BRIEN, VOICES FROM THE EDGE: NARRATIVES ABOUT THE AMERICANS
WITH DISABILITIES ACT (2004). See also RUTH COLKER, DISABILITY PENDULUM: THE FIRST DECADE OF THE
AMERICANS WITH DISABILITIES ACT (2005).
5. See supra note 3. See also Report of Senate Committee on Labor and Human Resources, Report No. 101-116, at 9 (Aug. 30, 1989). The
percentage of people with mental disabilitywho are employed is difficult to estimate, in part because people who are employed may be reluctant
to reveal the existence of such disabilities for fear of reprisal. A 2016 report from the United States Bureau of Labor Statistics indicated that
people with disabilities still lagged far behind in gaining employment. According to the Bureau, 17.5% of people with disabilities were
employed in 2015, while 65% of those without disabilities were employed. The employment–population ratio was far lower for those with
disabilities than for those without in all age groups and at all levels of education. In addition, 32% of those with disabilities who were employed
were employed part-time, whereas that was true for only 18% without disabilities. See U.S. Dep’t of Labor, Economic News Release: Persons with
a Disability: Labor Force Characteristics Summary, available at http://www.bls.gov/news.release/disabl.nr0.htm (accessed Aug. 1, 2016)
[hereinafter Dep’t of Labor]. For additional discussion, see infra note 11.
6. 42 U.S.C. § 12101(a)(1) (1994).
7. 42 U.S.C. § 12101(a)(9).
8. See, e.g., Ralph Catalano et al., Using EGA Survey Data to Examine the Effect of Job Layoffs on Violent Behavior, 44 HOSP. &
COMMUNITY PSYCHIATRY 874 (1993); NICK KATES ET AL., THE PSYCHOLOGICAL IMPACT OF JOB LOSS (1990);
MARIE JAHODA, EMPLOYMENT AND UNEMPLOYMENT: A SOCIAL-PSYCHOLOGICAL ANALYSIS (1982); Ralph
Catalano et al., Using EGA Survey Data to Examine the Effect of Job Layoffs on Violent Behavior, 44 HOSP. & COMMUNITY
PSYCHIATRY 874 (1993). More recent research finding such a relationship can be found at Hendrik Schmitz, Why Are the Unemployed in
Worse Health?: The Causal Effect of Unemployment on Health, 18 LAB. ECON. 71 (2011), and Karsten Paul & Klaus Moser, Unemployment
Impairs Mental Health: Meta-Analyses, 74 J. VOCATIONAL BEHAV. 264 (2009).
9. Brian J. Jones et al., A Survey of Fortune 500 Corporate Policies Concerning the Psychiatrically Handicapped, J. REHABILITATION 31
(Oct.–Dec. 1991). The authors found that of 127 respondents to their survey, only 13 had a “formal policy (i.e., written regulation) specifically
concerning the hiring of the psychiatrically handicapped.” Id. at 33. A more recent review of studies of employers’ attitudes toward people with
disabilities concluded that in general employers articulated positive attitudes toward hiring such people, but that actual hiring and retention
practices were still often discriminatory in impact. Jana Burke et al., Employers’ Attitudes Towards Hiring and Retaining People with Disabilities:
A Review of the Literature, 19 AUSTL. J. REHABILITATION COUNSELLING 21 (2013).
10. 29 U.S.C. §§ 719, 793, 794. For a detailed discussion of the Rehabilitation Act, see BONNIE TUCKER & BRUCE A.
GOLDSTEIN, LEGAL RIGHTS OF PERSONS WITH DISABILITIES: AN ANALYSIS OF FEDERAL LAW chs. 3–9 (1992).
Although this book was written some time ago, it still provides a good overview of the Rehabilitation Act, which has become less important
with the passage of the ADA.
11. See Dep’t of Labor, supra note 5.
12. For instance, President George W. Bush’s New Freedom Initiative, announced in 2005, was meant to increase the “ability of Americans
with disabilities to integrate into the workplace.” See Remarks by the President in Announcement of New Freedom Initiative (2005), available at

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https://georgewbush-whitehouse.archives.gov/infocus/newfreedom/. Whether it did so, of course, is a separate question, and there is no
evidence on its impact.
13. 42 U.S.C. § 12112(a) (1994, 2008).
14. In an excellent early summary and discussion of the ADA, Burgdorf observed that a distinguishing feature of the ADA is “the extensive
statutory language devoted to defining discrimination and establishing standards to prohibit it.” He attributes this specificity to a reluctance on
the part of Congress to leave the development of legal standards under the Act “to the vagaries of the regulatory and judicial processes,” and the
“idiosyncracies of disability discrimination, which demand more statutory guidance than general mandates not to discriminate.” Robert L.
Burgdorf, The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L.
REV. 413, 509–10 (1991). Burgdorf suggested that this specificity could become a problem, because Congress would have to remedy any flaws.
As discussed below, Congress in fact did so in 2008.
15. 42 U.S.C. §§ 12112(b)(1)–(7) (1994, 2008).
16. 42 U.S.C. § 12111(8) (1994, 2008).
17. 29 C.F.R. § 1630 (2011). For a detailed discussion of Congressional reasons for revamping the ADA and an explanation of the
implementing regulations, see Appendix to Part 1630—Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. ch.
XIV § 374 et seq. (July 1, 2013) (hereafter EEOC Appendix). For a discussion of the relationship between the ADA and more traditional civil
rights laws, see Jeannette Cox, Crossroads and Signposts: The ADA Amendments Act of 2008, 85 IND. L.J. 187 (2010).
18. 29 C.F.R. § 1630.2(h)(1)(2).
19. 42 U.S.C. § 12102(2) (1994, 2008).
20. John Parry, Mental Disability Coverage and Important Terms of the Americans with Disabilities Act, in MENTAL DISABILITIES
AND THE AMERICANS WITH DISABILITIES ACT: A PRACTITIONER’S GUIDE TO EMPLOYMENT, INSURANCE,
TREATMENT, PUBLIC ACCESS, AND HOUSING 2 (John Parry ed., 1994). See also School Board v. Arline, 480 U.S. 273, 284 (1987),
which held that the analogous provisions of the Rehabilitation Act “acknowledged that society’s accumulated myths and fears about disability
and diseases are as handicapping as are the physical limitations that flow from actual impairment.”
21. For instance, Senator Jesse Helms linked pedophiles, people with schizophrenia, those with manic–depressive illness, transvestites, and
people who are HIV-positive, and declared that none should be covered by the ADA. 135 CONG. REC. § 10765-01 (1989).
22. 29 C.F.R. § 1630.2(h)(2). An excellent discussion of the ADA and learning disabilities can be found at Paul D. Grossman, Employment
Discrimination Law for the Learning Disabled Community, 15 LEARNING DISABILITY Q. 287 (1992); see also Paul J. Gerber & Lynda A
Price, Persons with Disabilities in the Workplace: What We Know So Far in the Americans with Disabilities Act Era, 18 LEARNING
DISABILITIES RES. & PRAC. 132 (2003).
23. For example, the Equal Employment Opportunity Commission (EEOC) states that “the current edition of the American Psychiatric
Association’s Diagnostic and Statistical Manual of Mental Disorders [DSM] . . . is relevant for identifying [mental] disorders.” U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMM’N, EEOC ENFORCEMENT GUIDANCE ON THE AMERICANS WITH
DISABILITIES ACT AND PSYCHIATRIC DISABILITIES § 1 (1997) [hereinafter EEOC ENFORCEMENT GUIDANCE—
PSYCHIATRIC DISABILITIES]. Some have questioned this reliance, especially in the wake of DSM-5, which includes a wide array of low-
level disorders such as “mild neurocognitive disorder” and “social (pragmatic) communication disorder.” See Douglas A. Hass, Could the
American Psychiatric Association Cause You Headaches?: The Dangerous Interaction between the DSM-5 and Employment Law, 44 LOY. U.
CHI. L.J. 683, 713–14 (2013) (arguing that “[r]egardless of the relative wisdom of the DSM-5 approach for the medical community, the
‘spectralization’ of mental illness means that legal practitioners, including courts and government agencies, must . . . remove the DSM from its
lofty pedestal of authority”).
24. 42 U.S.C. §§ 12114(a)–(b) (1994).
25. 42 U.S.C. §§ 12211(a)–(b) (1994).
26. 42 U.S.C. §§ 12211(b)(1)–(3) (1994). Other excluded conditions include transvestism, pedophilia, transsexualism, exhibitionism,
voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, and compulsive gambling.
27. EEOC, A TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT PROVISIONS (TITLE I) OF THE
AMERICANS WITH DISABILITIES ACT II-2 (1992) [hereinafter EEOC MANUAL].
28. Michelle Ballard Miller & Jennifer Cotner, The ADA and Mental Disabilities: Emerging Trends and Accommodation Issues, 55 DRI FOR
DEF. 50 (2013).
29. EEOC ENFORCEMENT GUIDANCE—PSYCHIATRIC DISABILITIES, supra note 23, § 2 (“stress, in itself, is not
automatically a mental impairment. Stress, however, may be shown to be related to a mental or physical impairment”). See also Paleologos v.
Rehab Consultants, 990 F. Supp. 1460 (N.D. Ga. 1998). For a general discussion, criticizing the courts’ reluctance to more closely examine
plaintiff claims founded on workplace stress, see Susan Stefan, You’d Have to Be Crazy to Work Here: Worker Stress, the Abusive Workplace, and
Title I of the ADA, 31 LOY. L.A. L. REV. 795 (1998). For an argument that harassment may cause stress and related outcomes that should but

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often do not fall within the definition of the ADA, see Mark C. Weber, Workplace Harassment Claims under the Americans with Disabilities
Act: A New Interpretation, 14 STAN. L. & POL’Y REV. 241 (2003).
30. Hindman v. GTE Data Services, Inc., 63 U.S.L.W. 2096 (M.D. Fla. 1994). See also Bennett v. Unisys Corp., 2000 U.S. Dist. LEXIS
18143 (E.D. Pa. 2000) (“While traits or behaviors, such as irritability and poor judgment, are not in themselves mental impairments, they may
be linked to mental impairments”).
31. 525 U.S. 106 (1999).
32. The plaintiffs in Sutton argued that airlines should waive rules that pilots have good uncorrected vision and allow the use of eyeglasses as
a reasonable accommodation. The Court rejected their argument, in part based on the Congressional estimate referred to earlier (see supra note
3 and associated text) that 43 million Americans had at least one disability. Were the Court to accept plaintiffs’ arguments, it would necessarily
mean that the majority of Americans had a disability, given the prevalence of sight problems that were correctable by eyeglasses. The Court
decided two other cases at the same time, one involving hypertension (Murphy v. United Parcel Service, 527 U.S. 516, 1999) and the other
vision impairments (Albertson’s, Inc., v. Kirkingburg, 527 U.S. 555, 1999). For a discussion, see John Petrila & Thomas Brink, Mental Illness
and Changing Definitions of Disability under the Americans with Disabilities Act, 52 PSYCHIATRIC SERV. 626 (2001).
33. See, e.g., Krocka v. City of Chicago, 203 F. 3d 507 (7th Cir. 2000) (a police officer with severe depression did not have a disability under
the ADA, because medication controlled his symptoms); Smoke v. Wal-Mart Stores, 2000 U.S. App. LEXIS 2478 (10th Cir. 2000). For one of
many discussions of the impact of the Sutton case on psychiatric impairment claims, see Randall Goldstein, Note: Mental Illness in the
Workplace after Sutton v. United Airlines, 86 CORNELL L. REV. 927 (2001).
34. The Supreme Court in its Sutton ruling observed that antipsychotic medication could cause “neuroleptic malignant syndrome and painful
seizures,” and that other medications could also have disabling effects, such as Parkinson’s or epilepsy. For a court opinion finding that certain
types of medications had a disabling effect on the plaintiff, see McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999). However,
such cases will be rare.
35. EEOC MANUAL, supra note 27, at II-3.
36. Christopher Bell, The Americans with Disabilities Act, Mental Disability, and Work, in MENTAL DISORDER, WORK,
DISABILITY AND THE LAW 208 (Richard Bonnie & John Monahan eds., 1996).
37. EEOC ENFORCEMENT GUIDANCE—PSYCHIATRIC DISABILITIES, supra note 23, § 3.
38. 534 U.S. 184 (2002).
39. For discussions of Toyota Motor and its implications, see John Petrila, Law & Psychiatry: The U.S. Supreme Court Narrows the Definition
of Disability under the Americans with Disabilities Act, 53 PSYCHIATRIC SERV. 797 (2002); Kiren Dosanjh Zucker, The Meaning of Life:
Defining “Major Life Activities” under the Americans with Disabilities Act, 86 MARQ. L. REV. 957 (2003); Lisa Eichorn, The Chevron Two-
Step and the Toyota Sidestep: Dancing around the EEOC’s Disability Regulations under the ADA, 39 WAKE FOREST L. REV. 177 (2004).
40. 29 C.F.R. § 1630.2(i)(1); 42 U.S.C. § 2102.
41. Americans with Disabilities Amendments Act, Pub. L. No. 110-325, § 2(b)(4) (Findings and Purposes) (2008).
42. 42 U.S.C. § 12102(4)(E)(ii).
43. 29 C.F.R. § 1630.2(j).
44. 29 C.F.R. § 1630.2(j)(3).
45. For an excellent discussion of the topic of impairment from a legal perspective, see Michelle A. Travis, Impairment as Protected Status: A
New Universality for Disability Rights, 46 GA. L. REV. 937 (2012).
46. EEOC MANUAL, supra note 27, at II-9.
47. Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008, 103 NW.
U.L. REV. COLLOQUY 217, 227 (2008).
48. 42 U.S.C. § 12102(3)(A) (2009).
49. Michelle Travis, Disqualifying Universality under the Americans with Disabilities Amendments Act, 2015 MICH. ST. L. REV. 1689,
1694 (2015).
50. 42 U.S.C. § 12111(8) (1994).
51. EEOC MANUAL, supra note 27, at II-11–II-12.
52. Id. at II-12.
53. 42 U.S.C. § 12111(8) (2004).
54. 29 C.F.R. § 1630.2(n)(1) (1993).
55. 29 C.F.R. § 1630.2(n)(2)(i) (1993); EEOC Appendix, supra note 17.].
56. 29 C.F.R. § 1630.2(n)(2)(ii) (1993).
57. 29 C.F.R. § 1630.2(n)(2)(iii) (1993).
58. 29 C.F.R. §§ 1630.2(n)(3)(ii)–(vii) (1993). For additional commentary on the idea of essential functions, see Margaret H. Edwards, The

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ADA and the Employment of Individuals with Mental Disabilities, 18 EMP. REL. L.J. 347, 359–62 (1992–93); Michael T. Brannick et al., Job
Analysis, Personnel Selection, and the ADA, 2 HUM. RESOURCE MGMT. REV. 171, 176 (1992). See also EEOC MANUAL, supra note
27, at II-19, II-20 (discussing the need for and content of a job analysis).
59. 29 C.F.R. § 1630.2(n)(3)(i) (1993).
60. 711 F. 3d. 120 (2d Cir. 2013).
61. See Flocker v. Sparrow Hospital, 2003 U.S. LEXIS 9667 (W.D. Mich. 2003) (regular attendance as a hospital health unit coordinator
was an essential function of the position); Kinnaman v. Ford Motor Co., 79 F. Supp. 2d 1096 (E.D. Mo. 2000) (regular attendance on an
automobile assembly line was an essential job function).
62. 42 U.S.C. § 12111(9)(B).
63. EEOC v. Ford Motor Company, 782 F.3d 753 (6th Cir. 2015) (holding that the employer could require individuals to be physically
present and did not have to provide telecommuting as an accommodation to an employee with irritable bowel syndrome).
64. 1993 WESTLAW 106166 (S.D.N.Y. 1993).
65. No. 03940027 (EEOC, May 12, 1994), reported in 18 MENTAL & PHYSICAL DISABILITY L. REP. 426 (1994). In an opinion
letter from 2008, responding to a query regarding employer obligations to a returning veteran with PTSD who had difficulties with workplace
relationships, the EEOC made clear that employers could enforce conduct standards at work. See
https://www.eeoc.gov/eeoc/foia/letters/2008/ada_disability_employee_misconduct.html.
66. 42 U.S.C. § 12112(5)(A) (1994, 2008).
67. 42 U.S.C. § 12112(5)(B) (1994, 2008).
68. For instance, the reasonable-accommodation principle has been called a “major element of disability nondiscrimination regulations and
caselaw under the Rehabilitation Act.” Burgdorf, supra note 14, at 460. See also U.S. COMM’N ON CIVIL RIGHTS,
ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES 102 (1983) (“discrimination against handicapped people
cannot be eliminated if programs, activities, and tasks are always structured in the ways that people with ‘normal’ physical and mental abilities
customarily undertake them. Adjustments or modifications of opportunities to permit handicapped people to participate fully have been broadly
termed ‘reasonable accommodation’ ”).
69. Long, supra note 47, at 228–29.
70. 29 C.F.R. § 1630.2(o) (1997).
71. 29 C.F.R. §§ 1630.2(o)(1)(i–iii) (1997)
72. 42 U.S.C. §§ 12111(9)(A)–(B) (1994).
73. Blanck et al., supra note 4, at 269.
74. EEOC, ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE
AMERICANS WITH DISABILITIES ACT, § 1.3 (2002) [hereinafter EEOC ENFORCEMENT GUIDANCE—UNDUE
HARDSHIP]. However, a failure to communicate a request for reasonable accommodation has resulted in summary judgment for an employer
in a case where the plaintiff went on extended medical leave because of major depression resulting from her discovery that she was HIV-
positive. Burke v. Iowa Methodist Medical Center, 2002 U.S. App. LEXIS 1811 (8th Cir. 2002).
75. The regulations note that “it may be necessary for the covered entity to initiate an informal, interactive process” to consider the request.
29 C.F.R. § 1630.2(o)(3) (2004). The courts are often sympathetic to employers that appear to take this requirement seriously, as it suggests
good faith on the part of the employer. See PollyBeth Proctor, Determining “Reasonable Accommodation” under the ADA: Understanding
Employer and Employee Rights and Obligations during the Interactive Process, 33 SW. U. L. REV. 51 (2003). But see Nancy J. Sandoval,
Disabled Yet Disqualified: Is It “Unreasonable” to Demand Accommodations for Employees with Depression Under the Americans With
Disabilities Act?, 17 CHAP. L. REV. 687, 712 (2013–14) (noting that the interactive process is not always followed).
76. General Principles, in EEOC ENFORCEMENT GUIDANCE—UNDUE HARDSHIP, supra note 74.
77. 535 U.S. 391 (2002). Justice Breyer, writing for a five-member majority, noted that there were occasions when an employee with a
disability could be treated preferentially under the ADA (e.g., permitting exceptions to “break from work” rules). He observed that if all
workplace rules had to be applied in a neutral manner, it would defeat the purpose of the ADA. However, the Court found that the proposed
accommodation, absent “special circumstances,” must fall to the seniority system that governed such assignments at U.S. Airways. See generally
Nelson Lund, Symposium, The Rehnquist Court: The Rehnquist Court’s Pragmatic Approach to Civil Rights, 99 NW. L. REV. 249 (2004); Note,
Leading Cases: III. Federal Statutes and Regulations: A. Americans with Disabilities Act, 116 HARV. L. REV. 42 (2002); Melissa M. Chereau,
Comment, The Barnett Paradox: Icarus’s Wings, 6 J. SMALL & EMERGING BUS. L. 395 (2002).
78. 42 U.S.C. § 12111.
79. EEOC ENFORCEMENT GUIDANCE—PSYCHIATRIC DISABILITIES, supra note 23, at III-15.
80. For a discussion, see Kim L. MacDonald-Wilson et al., Disclosure of Mental Health Disabilities in the Workplace, in WORK
ACCOMMODATION AND RETENTION IN MENTAL HEALTH (Izabela Schultz & E. Sally Rogers eds., 2011); LAURA L.
MANCUSO, CASE STUDIES ON REASONABLE ACCOMMODATION FOR WORKERS WITH PSYCHIATRIC

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DISABILITIES (1993). Mancuso, who explores in some depth the experiences of ten workers with mental disabilities, concludes from her
interviews that the decision to disclose or not to disclose the existence of a mental disability is a major decision and source of conflict for
employees and applicants. She identifies several benefits from disclosing the existence of a disability, including the fact that disclosure permits
the worker to ask for and be involved in creating a reasonable accommodation. In addition, it permits a worker to have a job coach come to the
worksite and communicate with the employer, makes it easier to come to work at a time of heightened symptoms, is likely to be consistent with
the process of recovery, and permits coworkers to offer support. She also notes several potential hazards from disclosure, including being teased
or harassed by coworkers; risking the possibility that despite the ADA, the employer may find a reason not to hire based on the disability;
limiting the opportunities for career advancement; and creating conflict with one’s self-perception or beliefs. In regard to the last point, Bell
states that “[t]here appears to be no consensus as to how, when, to whom or what information should be disclosed in the accommodation
process. Poor self-awareness or self-denial may also make disclosure difficult.” Bell, supra note 36, at 212. See also Ruth I. Freedman & Sheila
Lynch Fesko, The Meaning of Work in the Lives of People with Significant Disabilities: Consumer and Family Perspectives, 62 J.
REHABILITATION 49 (1996) (reporting that focus groups revealed significant reluctance to disclose the existence of disabilities to
employers); Amanda N. Jones, Disclosure of Mental Illness in the Workplace: A Literature Review, 14 AM. J. PSYCHIATRIC
REHABILITATION 211 (2011).
81. DEBORAH ZUCKERMAN ET AL., THE ADA AND PEOPLE WITH MENTAL ILLNESS: A RESOURCE MANUAL FOR
EMPLOYERS 36 (1993) (identifying several related barriers to reasonable accommodation, including a lack of resources to cover a person’s job
if he or she takes leave because of illness, and concern on the part of the employer and other employees that accommodations will lower
standards). This publication, published jointly by the American Bar Association and the National Mental Health Association, is a good guide to
issues associated with implementing the ADA in the area of employment for people with mental illness. For an excellent discussion, not focused
exclusively on mental illness, see Mark C. Weber, Unreasonable Accommodation and Undue Hardship, 62 FLA. L. REV. 1119 (2010); see also
U.S. DEP’T OF LABOR, JOB ACCOMMODATION NETWORK, EMPLOYERS’ PRACTICAL GUIDE TO REASONABLE
ACCOMMODATION UNDER THE AMERICANS WITH DISABILITIES ACT (2009).
82. ZUCKERMAN ET AL., supra note 81, at 25.
83. One study found, for instance, that employees with a mental disability most frequently cited a flexible or part-time schedule as a helpful
accommodation. MANCUSO, supra note 80, at 47. However, as the discussion at note 61, supra, suggests, an employee requesting such an
accommodation may run up against an argument that a fixed schedule is an essential job function.
84. It should be noted, however, that an employer need not provide a different supervisor as an accommodation. EEOC ENFORCEMENT
GUIDANCE—UNDUE HARDSHIP, supra note 74, at 33.
85. Edwards, supra note 58, at 381–82.
86. No. 01931927 (EEOC May 5, 1994), reported in 18 MENTAL & PHYSICAL DISABILITY L. REP. 527 (1994).
87. See, e.g., Clark v. Boyd Tunica, 2016 U.S. Dist. LEXIS 25223 (N.D. Miss., Mar. 1, 2016) (an employee who injured herself at work and
tested positive for alcohol while working was properly terminated by an employer who had a clear policy regarding the consequences of using
alcohol at work); Haas v. Village of Hinsdale, 2004 U.S. Dist. LEXIS 16758 (N.D. Ill. 2004) (a city employee could no longer perform the
essential functions required as a tree trimmer because of an injury to his back); McMackins v. Elk Grove Unified School District, 21 F. Supp.
2d 1201 (E.D. Cal. 1998) (a school employee with multiple sclerosis could not show she could perform essential functions of her job even with
accommodation); Scott v. Montgomery County Government, 164 F. Supp. 2d 502 (D. Md. 2001) (an employee with sleep apnea could not
demonstrate that a reasonable accommodation would enable him to perform the essential functions of being a messenger).
88. EEOC ENFORCEMENT GUIDANCE—PSYCHIATRIC DISABILITIES, supra note 23, at VII-7.
89. Edwards, supra note 58, at 379 (“accommodating the employee with a mental disability by reassigning the employee to another position
has been particularly problematic for courts under the Rehabilitation Act. A number of decisions have said that no such reassignment is required
when the individual is not otherwise qualified or is no longer qualified for his or her present position”).
90. 42 U.S.C. § 12113(b) (1994).
91. 42 U.S.C. § 12111(3).
92. 29 C.F.R. § 1630.2(r) (1991. 2011).
93. EEOC Appendix, supra note 17, at B-28–B-29.
94. EEOC ENFORCEMENT GUIDANCE—PSYCHIATRIC DISABILITIES, supra note 23, at 34.
95. Id.
96. Edwards, supra note 58, at 375–76. See also Ramachandar v. Sobol, 838 F. Supp. 100 (1993) (a physician who refused to take lithium for
a manic–depressive illness, and who as a result practiced while impaired, was not entitled to accommodation: The law “does not require
professional licensing authorities, against their best judgment, to play Russian roulette with public health. Reasonable accommodation, in the
context of permitting a physician to practice medicine, necessarily is accommodation that eliminates significant risk to patients”).
97. See, e.g., Karen Dill Danforth, Reading Reasonableness Out of the ADA: Responding to Threats by Employees with Mental Illness Following

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Palmer, 85 VA. L. REV. 661 (1999).
98. 117 F. 3d 351 (7th Cir. 1998).
99. No. 03920107 (EEOC Nov. 23, 1993), reported in 18 MENTAL & PHYSICAL DISABILITY L. REP. 270 (1994).
100. See also Davis v. West, No. 03930085 (EEOC Dec. 16, 1993), reported in 18 MENTAL & PHYSICAL DISABILITY L. REP. 270
(1994) (a postal worker who crashed while under the influence of alcohol and drugs could be fired despite availability of treatment, given the
public safety risk); Daniels-Merritt v. Johnson, 1993 U.S. Dist. LEXIS 18331 (W.D. Mo. 1993) (demotion and then discharge of an employee
was permissible despite the allegation that she could work under a different supervisor, in part because of “paranoia directed toward the high
level management officials” and in part because she was virtually impossible to work with or supervise, despite several counseling sessions). But
see Hindman v. GTE Data Services, Inc., 63 U.S.L.W. 2096 (M.D. Fla. 1994) (the court refused to grant summary judgment to GTE, despite
the plaintiff’s violation of company policy in bringing a gun to work; the court found that the company should have investigated the possibility
of leaves of absence to accommodate the employee’s problems with poor judgment).
101. 687 F. Supp. 1214, 1219 (S.D. Ohio 1988).
102. Johnson v. Maynard, 2003 U.S. Dist. LEXIS 2676 (S.D.N.Y. 2003). See also Ascani v. Hofstra University, 1999 U.S. App. LEXIS
7654 (2d Cir. 1999) (a university was entitled to summary judgment because a student who threatened a professor was posing a direct threat and
therefore not protected by the ADA).
103. 650 F. Supp. 2d 754 (M.D. Tenn. 2009), rev’d, 625 F.3d 283 (6th Cir. 2010). Note that while illicit use of drugs is not a disability
under the ADA, a person with a disability who is using prescription drugs (including antipsychotic medication) is usually protected by the
ADA. EEOC. TECHNICAL ASSISTANCE MANUAL, ch. VIII, § 8.3 (1992).
104. Elisa Y. Lee, An American Way of Life: Prescription Drug Use in the Modern ADA Workplace, 45 COLUM. J.L. & SOC. PROBS. 303
(2011).
105. 536 U.S. 7 (2002).
106. See, e.g., Nicole Silvestri, Echazabal and the Threat to Self-Defense: The Most Recent Call for a Consistent, Interstate Genetic
Nondiscrimination Policy, 7 U. PA. J. LAB. & EMP. L. 409 (2005).
107. For discussions, see John D. Ranseen & Gregory S. Parks, Test Accommodations for Post-Secondary Students: The Quandary Resulting
from the ADA’s Disability Definition, 11 PSYCHOL. PUB. POL’Y & L. 83 (2005); Suzanne Wilhelm, Accommodating Mental Disabilities in
Higher Education: A Practical Guide to ADA Requirements, 32 J.L. & EDUC. 217 (2003).
108. 42 U.S.C. §§ 12112(b)(6)–(7) (1994, 2008).
109. EEOC MANUAL, supra note 27, at IV-1.
110. EEOC, ENFORCEMENT GUIDANCE: PREEMPLOYMENT DISABILITY-RELATED QUESTIONS AND MEDICAL
EXAMINATIONS UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990, 8 FEP MANUAL (BNA) 405:7191 (1995)
[hereinafter 1995 EEOC ENFORCEMENT GUIDANCE—DISABILITY-RELATED QUESTIONS].
111. EEOC, ENFORCEMENT GUIDANCE: DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF
EMPLOYEES UNDER THE AMERICANS WITH DISABILITIES ACT, § B.1 (2000) [hereinafter 2000 EEOC ENFORCEMENT
GUIDANCE—DISABILITY-RELATED QUESTIONS].
112. Id.
113. EEOC MANUAL, supra note 27, at V-1. See generally Sujata S. Mejoge, Testing the Limits of Anti-Discrimination Law: How
Employers’ Use of Pre-Employment Psychological and Personality Tests Can Circumvent Title VII and the ADA, 82 N.C. L. REV. 326 (2003).
114. 2000 ENFORCEMENT GUIDANCE—DISABILITY-RELATED QUESTIONS, supra note 111, § B.2.
115. 1995 ENFORCEMENT GUIDANCE—DISABILITY-RELATED QUESTIONS, supra note 110.
116. EEOC v. Grane Healthcare Co., 2015 WL 5439052 (finding that the defendant had engaged in widespread discrimination under the
ADA by using pre-employment medical tests to learn whether applicants had a disability).
117. 2000 ENFORCEMENT GUIDANCE—DISABILITY-RELATED QUESTIONS, supra note 110, § B.2.
118. For an early general discussion of the status of psychological testing under the ADA, see David W. Arnold & Alan J. Thiemann, To
Test or Not to Test: The Status of Psychological Testing under the Americans with Disabilities Act (ADA), 6 J. BUS. & PSYCHOL. 503 (1992);
Scott L. Martin & Karen B. Slora, Employee Selection by Testing, HR MAG., June 1991, at 68. Both of these articles concluded that
psychological testing was generally unaffected by the ADA. Arnold and Thiemann noted that tests designed to detect a mental impairment
“represent a small minority of the tests which are used in employment settings. The vast majority of tests used in employment settings are used
to assess applicants with respect to qualities which are not even remotely similar to those contained in the definition of impairment.” Id. at 505.
Although these articles seemed generally persuasive, the authors of both articles were employed by firms that designed and/or administered such
tests as part of the employment process, and so might be perceived as having a stake in the outcome of this issue.
119. In Barnes v. Cochran, 944 F. Supp. 897 (S.D. Fla. 1996), a district court found that a battery of tests (including the original Minnesota
Multiphasic Personality Inventory [MMPI] and the Inwald Personality Inventory) given to an applicant for a corrections officer position

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constituted a medical examination under the ADA, because a licensed psychologist performed the examination and because of the “nature and
extent” of the examination. In contrast, a jury in Thompson v. Borg-Warner Protective Serv. Corp., No. C-94–4015 MHP, 1996 WL 162990
(N.D. Cal. Mar. 11, 1996), found that the PASS III D.A.T.A. Survey (a 100-question multiple-choice inventory) was not a medical
examination. A federal court in Varnagis v. City of Chicago, 1997 U.S. Dist. LEXIS 9031 (N.D. Ill. 1997), found that further factfinding was
necessary before it could be determined whether psychological testing had been used by the employer to determine whether the plaintiff (an
applicant to become a police officer) had a disability under the ADA. For a more general discussion of these cases and the principles involved in
applying the ADA to personality and psychological testing, see Gregory R. Vetter, Comment, Is a Personality Test a Pre-Job-Offer Medical
Examination under the ADA?, 93 NW. U. L. REV. 597 (1999).
120. Karraker v. Rent-A-Center Inc., 411 F.3d 831 (7th Cir. 2005).
121. Miller v. City of Springfield, 146 F.3d 612 (8th Cir. 1998).
122. EEOC MANUAL, supra note 27, at V-18.
123. Id. at V-19. An example of the latter situation comes from DiPompo v. West Point Military Academy, 770 F. Supp. 887 (S.D.N.Y.
1991), aff’d, DiPompo v. West Point Military Academy, 960 F. 2d 326 (2d Cir. 1992). There a firefighter with a successful record at two other
firefighting companies applied for a job at West Point. The job at West Point, unlike his previous employment, required employees to read and
interpret written material regarding toxic substances. The applicant had minimal reading skills because of his dyslexia. The court rejected his
argument that the job should be restructured, finding that it was not reasonable under the Rehabilitation Act to require West Point to hire a
reader so that the applicant could become a firefighter.
124. EEOC MANUAL, supra note 27, at V-19.
125. Id. at V-20–V-21.
126. Final Report of the “Best Practices” Panel, California Department of Fair Employment and Housing v. Law School Admission Council
(Case 3:12-cv-01830-EMC), available at https://www.ada.gov/lsac_best_practices_report.pdf.
127. 42 U.S.C. § 12117(a) (1994).
128. U.S. Dep’t of Justice, Civil Rights Division, Information and Technical Assistance on the Americans with Disabilities Act, available at
https://www.ada.gov/enforce_current.htm.
129. The description of this process is taken from the EEOC MANUAL, supra note 27, § X.
130. A comprehensive analysis of the use of mediation by the EEOC for claims filed between January 1, 1999 and June 30, 2000 and closed
as of September 30, 2000 showed that mental illness claims were slightly but significantly less likely to be referred for mediation than other
types of claims, but that once referred were as likely to result in settlement. Kathryn Moss et al., Mediation of Employment Discrimination
Disputes Involving Persons with Psychiatric Disabilities, 53 PSYCHIATRIC SERV. 988 (2002). During that period, there were 23,759 ADA
charges filed with the EEOC, of which 758 involved anxiety disorders, 1,825 involved depression, 510 involved manic–depressive disorder, 123
involved schizophrenia, 673 involved “other emotional impairments,” 285 involved alcohol abuse, 128 involved chemical abuse, and 20,075
involved other disability designations. The total number of impairments adds up to more than the total number of charges, because some
charges involved individuals who reported more than one type of disability. There were 3,277 mediations held involving these cases, of which
more than 2,000, or approximately 63%, resulted in settlements. The authors concluded that the mediation program was successful and should
be expanded.
131. For a general discussion of the enforcement provisions for each title of the ADA, see Kristi Bleger, The Americans with Disabilities Act:
Enforcement Mechanisms, 16 MENTAL & PHYSICAL DISABILITY L. REP. 347 (1992).
132. Liz Spayd, The Disabilities Act, One Year Later, WASH. POST, July 29, 1993, at 23.
133. Id.
134. Kathryn Moss et al., Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal
Employment Opportunity Commission, 50 KAN. L. REV. 1 (2001).
135. Id.
136. Id.
137. See, e.g., Kathryn Moss et al., Outcomes of Employment Discrimination Claims Filed under the Americans with Disabilities Act, 50
PSYCHIATRIC SERV. 1028 (1999) (finding that 13.6% of charges filed by individuals with psychiatric disabilities resulted in benefits,
compared with a benefit rate of 16% for persons with other disabilities, but that the average benefit was higher for those with psychiatric
disabilities). See also Stefan, supra note 29, at 818.
138. Jessica E. Hurley, An Analysis of ADA Title I Allegations of Workplace Discrimination File with the EEOC by Persons with Mental
Illness (2010) (Ph.D. dissertation, Virginia Commonwealth University), available at http://scholarscompass.vcu.edu/cgi/viewcontent.cgi?
article=3641&context=etd.
139. Id. at 12.
140. Jessica E. Hurley et al., Merit Determinants of ADA Title I Allegations Filed by Persons with Mental Illness, 36 J. VOCATIONAL

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REHABILITATION 171 (2012).
141. 531 U.S. 356 (2001).
142. For a discussion of the Court’s federalism decisions, see Symposium, The Rehnquist Court: The Judicial Safeguards of Federalism, 99
NW. U. L. REV. 131 (2004).
143. Tennessee v. Lane, 541 U.S. 509 (2004).
144. Stephen F. Befort, An Empirical Examination of Case Outcomes under the ADA Amendments Act, 70 WASH. & LEE L. REV. 2027
(2013).
145. Travis, supra note 49; Debbie N. Kaminer, Mentally Ill Employees in the Workplace: Does the ADA Amendments Act Provide Adequate
Protection?, 26 HEALTH MATRIX 205 (2016); Comment, The ADA Amendments Act of 2008: Why the Qualified Individual Analysis is the
New Battleground for Employment Discrimination Suits, 67 OKLA. L. REV. 111 (2014).
146. William E. Foote, Forensic Evaluations in Americans with Disabilities Act Cases, in 11 HANDBOOK OF PSYCHOLOGY:
FORENSIC PSYCHOLOGY (Alan M. Goldstein ed., 2003); William E. Foote, A Model for Psychological Consultation in Cases Involving the
Americans with Disabilities Act, 31(2) PROF. PSYCHOL.: RES. & PRAC. 190 (2000).
147. This example is taken from Doe v. Region 13 Mental Health–Mental Retardation Comm’n, 704 F.2d 1402 (5th Cir. 1983), in which
the court found that the plaintiff’s depression was an impairment under the Rehabilitation Act, but that she was not qualified to perform her job
as a therapist.
148. See, e.g., studies cited supra note 81. See also Ramona L. Paetzold, Law & Psychiatry: Mental Illness and Reasonable Accommodations at
Work: Definition of a Mental Disability under the ADA, 56 PSYCHIATRIC SERV. 1188 (2005); Judith Cook, Employment Barriers for
Persons with Psychiatric Disabilities: Update of a Report for the President’s Commission, 57 PSYCHIATRIC SERV. 1391 (2006); Ellen S.
Fabian et al., Reasonable Accommodations for Workers with Serious Mental Illness: Type, Frequency, and Associated Outcomes, 17
PSYCHOSOC. REHABILITATION J. 163 (1993); Loretta K. Haggard, Reasonable Accommodation of Individuals with Mental Disabilities
and Psychoactive Substance Use Disorders under Title I of the Americans with Disabilities Act, 43 J. URB. & CONTEMP. L. 343 (1993); Laura
L. Mancuso, Reasonable Accommodation for Workers with Psychiatric Disabilities, 14 PSYCHOSOC. REHABILITATION J. 3 (1990).
149. For a good discussion of this and other legal issues, see Jane Goodman-Delahunty, Psychological Impairment under the Americans with
Disabilities Act: Legal Guidelines, 31(2) PROF. PSYCHOL: RES. & PRAC. 197 (2000).
150. EMILY COOPER ET AL., PRICED OUT IN 2014: THE HOUSING CRISIS FOR PEOPLE WITH DISABILITIES 3 (2014).
151. Rachel Rubey, There’s No Place like Home: Housing for the Most Vulnerable Individuals with Severe Mental Disabilities, 63 OHIO ST.
L.J. 1729 (2002) (noting that in an effort to increase housing for elderly persons, Congress limited some publicly funded housing to that group,
creating approximately 25% fewer units for people with disabilities).
152. 42 U.S.C. §§ 3601-3619 (1994).
153. 134 CONG. REC. § 4603 (statement of Rep. Peter Rodino). Senator Edward Kennedy, chief sponsor of the Fair Housing
Amendments Act (FHAA) in the Senate, referred to the enforcement provisions of the original Fair Housing Act as a “toothless tiger.” 100th
Cong., 2d Sess., 134 CONG. REC. § 10454 (Aug. 1, 1988).
154. Recent Developments, Fair Housing Amendments Act of 1988, 24 HARV. C.R.-C.L. L. REV. 248 (1989).
155. The focus here is on discrimination based on “handicaps.” The statutory amendments also made illegal discrimination in the sale or
rental of housing based on “familial status.” 42 U.S.C. § 3602(k) (1994 supp.). For a general discussion of the latter issue, see Wendy L. Morris
et al., No Shelter for Singles: The Perceived Legitimacy of Marital Status Discrimination, 10 GROUP PROCESSES & INTERGROUP REL.
457 (2007); Michael Seng, Discrimination against Families with Children and Handicapped Persons under the 1988 Amendments to the Fair
Housing Act, 22 J. MARSHALL L. REV. 541 (1989).
156. James Kushner, The Fair Housing Amendments Act of 1988: The Second Generation of Fair Housing, 42 VAND. L. REV. 1049 (1989);
Harold Ellis, Neighborhood Opposition and the Permissible Purposes of Zoning, 7 J. LAND USE & ENVTL. L. 275 (1992).
157. See generally James Alisky & Kenneth Iczkowski, Barriers to Housing for Deinstitutionalized Psychiatric Patients, 41 HOSP. &
COMMUNITY PSYCHIATRY 93, 94 (1990); Barry Trute et al., Social Rejection of the Mentally Ill: A Replication Study of Public Attitude, 24
SOC. PSYCHIATRY & PSYCHIATRIC EPIDEMIOLOGY 69 (1989); Note, The Impact of Federal Antidiscrimination Laws on Housing
for People with Mental Disabilities, 59 GEO. WASH. L. REV. 413 (1991).
158. For discussion of the central role housing plays in enabling people to live in a community, see Tse-Chuan Yang et al., Perceived Housing
Discrimination and Self-Reported Health: How Do Neighborhood Features Matter? 10 ANNALS BEHAV. MED. 1 (2016); Beth Tanzman, An
Overview of Surveys of Mental Health Consumers’ Preferences for Housing and Support Services, 44 HOSP. & COMMUNITY PSYCHIATRY
450 (1993).
159. Geoffrey Nelson, Housing for People with Serious Mental Illness: Approaches, Evidence, and Transformative Change, 37 J.
SOCIOLOGY & SOC. WELFARE 123 (2010); Robert Drake et al., Housing Instability and Homelessness among After-Care Patients of an
Urban State Hospital, 40 HOSP. & COMMUNITY PSYCHIATRY 46, 47 (1989). In addition, an absence of adequate housing can prolong

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hospitalization for many individuals. Sharon Salit & Luis Marcos, Have General Hospitals Become Chronic Care Institutions for the Mentally Ill?,
148 AM. J. PSYCHIATRY 892 (1991).
160. 473 U.S. 432 (1985).
161. 42 U.S.C. § 3604(f) (1994 supp.).
162. 42 U.S.C. § 12112(b)(4) prohibits discrimination against a “qualified individual because of the known disability of an individual with
whom the qualified individual is known to have a relationship or association.”
163. Note, however, that the FHAA excludes certain transactions from its coverage. Most notably, a private home sale by an individual who
owns no more than three private homes and makes a sale without a broker is exempt from the FHAA. This exclusion was part of the original
Fair Housing Act, and applies as well under the FHAA. Michigan Protection & Advocacy Services, Inc., v. Babin, 799 F. Supp. 695 (E.D.
Mich. 1992).
164. H.R. REP. NO. 485, 101st Cong, 1st Sess., pt. 3.
165. 42 U.S.C. § 3602(h) (1994 supp.).
166. Id.
167. 54 Fed. Reg. 3232.
168. 24 C.F.R. § 100.202(c) (1993).
169. 42 U.S.C. § 3604(3)(A) (1994 supp.).
170. Id.
171. For example, the FHAA requires that for most multifamily dwellings constructed 30 months after the enactment of the FHAA, doors
for entering and leaving the dwelling have to be sufficiently wide to permit passage by an individual in a wheelchair. 42 U.S.C. § 3604(3)(c)
(1994 supp.).
172. 42 U.S.C. § 3604(f)(9) (1994 supp.); 24 C.F.R. § 100.202(d).
173. 100 C.F.R. § 200(d).
174. 1988 U.S.C.C.A.N. 2190.
175. See BAZELON CENTER FOR MENTAL HEALTH LAW, DIGEST OF CASES AND OTHER RESOURCES FOR FAIR
HOUSING FOR PEOPLE WITH DISABILITIES (2004).
176. John Petrila, Enforcement of the Fair Housing Amendments Act to Benefit People with Mental Disability, 45 HOSP. & COMMUNITY
PSYCHIATRY 156 (1994).
177. Glenna Riley, The Pursuit of Integrated Living: The Fair Housing Act as a Sword for Mentally Disabled Adults Residing in Group Homes,
45 COLUM. J.L. & SOC. PROBS. 177 (2011–2012); John Petrila, Law & Psychiatry: Has the ADA Been Reborn as a Tool of Broad
Community Change for People with Mental Disabilities?, 65 PSYCHIATRIC SERV. 847 (2014) (describing a case in which the Governor of
New York promised to provide thousands of new housing units for people with mental illness confined to group homes).
178. 42 U.S.C. § 3607(b).
179. H.R. REP. NO. 711, 100th Cong., 1st Sess. 24 (1988).
180. 514 U.S. 725 (1995).
181. 974 F.2d 43 (6th Cir. 1992).
182. In another case, Cason v. Rochester Hous. Auth., 748 F. Supp. 1002 (W.D.N.Y. 1990), a court ruled that it was illegal for the city
housing authority to force people with diagnoses of major mental illness (in this case, schizophrenia) to prove that they had the ability to live
independently before being granted public housing. The court ruling was based on the rationale that no other group of people had to make such
a showing, and that the requirement therefore was discriminatory, based on “unsubstantiated prejudices and fears regarding those with mental
and physical disabilities.” Id. at 1008. For a discussion of the powers and limits of local governments in this area, see Brian Connolly & Dwight
Merriam, Planning and Zoning for Group Homes: Local Government Obligations and Liabiltiy Under the Fair Housing Amendments Act, 47
URB. LAW. 225 (2015).
183. See, e.g., Larkin v. Michigan Dep’t of Social Services, 89 F. 3d 285 (6th Cir. 1996) (striking down a state law requiring that 1,500 feet
separate community residential facilities, because the statute “was not warranted by the unique and specific needs and abilities” of the individuals
who would reside in the community and was more likely to create community opposition than foster community integration).
184. 823 F. Supp. 1285 (D. Md. 1993).
185. See also Ardmore v. City of Akron, 1990 WESTLAW 385236 (N.D. Ohio 1990) (striking down similar notice and hearing
requirements).
186. 578 N.Y.S.2d 1004 (1991).
187. Ass’n Apartment Owners of Liluokalani Gardens at Waikiki v. Taylor, 892 F.Supp.2d 1268 (D. Haw. 2012).
188. Chris Ligatti, No Training Required: The Availability of Emotional Support Animals as a Component of Equal Access for the
Psychiatrically Disabled under the Fair Housing Act, 35 T. MARSHALL L. REV. 139 (2012).

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 189. 787 F. Supp. 872 (W.D. Wis. 1991).
190. See also Horizon House Developmental Services, Inc., v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992) (finding
a requirement that group homes be separated by at least 1,000 feet to be discriminatory on its face and therefore violative of the FHAA). The
Department of Housing and Urban Development (HUD) provides an interesting “spacing restrictions case study” that illustrates most of the
issues embedded in this area of law (available at https://www.hudexchange.info/resources/nimbyassessment/?
nimbyassessmentaction=spacing.viewnimbysitespacing).
191. 720 F. Supp. 720 (S.D. Ill. 1989).
192. Id. at 726. Another court reached a similar conclusion in a case in which a community argued that persons recovering from alcoholism
and substance abuse were dangerous, because the only “proof” that they posed a direct threat to the community was the “speculative conclusions
of the neighbors.” Oxford House–Evergreen v. City of Plainfield, 760 F. Supp. 1329 (D.N.J. 1991).
193. In re Commitment of J.W., 672 A. 2d 199 (N.J. Super. Ct. App. Div. 1996).
194. U.S. Dep’t of Justice & HUD, Joint Statement of the Department of Housing and Urban Development and the Department of Justice:
Reasonable Accommodations under the Fair Housing Act (May 17, 2004), available at
https://www.hud.gov/offices/fheo/library/huddojstatement.pdf.
195. 820 F. Supp. 636 (D.N.H. 1993).
196. Sinisgallo v. Town of Islip Housing Authority, 865 F. Supp. 2d 307 (2012).
197. For example, in Talley v. Lane, 13 F.3d 1031 (7th Cir. 1994), a federal court of appeals affirmed a summary judgment for the defendant
in a case in which the plaintiff had been convicted for offenses involving narcotics possession. See also Housing Auth. v. Pappion, 540 So. 2d
567 (La. Ct. App. 1989), involving a tenant with a diagnosis of schizophrenia who allegedly had threatened other residents and engaged in
other disruptive behavior. The reviewing court upheld his eviction, despite evidence that the tenant was now taking medication that had
eliminated the complained of behaviors. See generally Jennifer L. Dolak, The FHAA’s Reasonable Accommodation & Direct Threat Provisions as
Applied to Disabled Individuals Who Become Disruptive, Abusive, or Destructive in Their Housing Environment, 36 IND. L. REV. 59 (2003)
(pointing out, e.g., that courts have rejected proposed accommodations that would have required other residents to wear ear plugs or use white-
noise machines to mask noise from another resident who had a mental disability).
198. See Dolak, supra note 197, at 774–84.
199. Frederic White, Outing the Madman: Fair Housing for the Mentally Handicapped and Their Right to Privacy versus the Landlord’s Duty
to Warn and Protect, 28 FORDHAM URB. L.J. 783 (2001). While giving priority to the tenant’s right to privacy may be necessary to prevent
one source of discrimination against tenants with disabilities, it is also possible that a landlord may feel morally if not legally bound to take into
account the welfare of other tenants.
200. Salute v. Stratford Greens Garden Apartments, 136 F. 3d 293 (2d Cir. 1996). Between Salute and the time of this writing, no legal
developments have provided grounds for an argument challenging federal subsidies under the FHAA.
201. John Monahan et al., Use of Leverage to Improve Adherence to Psychiatric Treatment in the Community, 56 PSYCHIATRIC SERV. 37
(2005) (describing a study conducted in Chicago, Worcester, Raleigh–Durham, Tampa, and San Francisco that explored self-reports of
coercion in the areas of housing, criminal justice, outpatient civil commitment, and money).
202. Michael Allen, Waking Rip Van Winkle: Why Developments in the Last 20 Years Should Teach the Mental Health System Not to Use
Housing as a Tool of Coercion, 21 BEHAV. SCI. & L. 503 (2003).
203. See generally 42 U.S.C. §§ 3610-3614 for the statutory provisions concerning enforcement of the FHAA.
204. 42 U.S.C. §§ 401 et seq.
205. 42 U.S.C. §§ 1381 et seq.
206. Prior to 1972, the Social Security program was a mixture of federal and state responsibility, with states using disparate substantive and
procedural criteria in administering the program. In 1972, Congress enacted a comprehensive overhaul of the Social Security Administration
(SSA) and directed the SSA to create a program with standardized criteria and rules. Since that time, these disability programs largely have been
the product of federal law. See generally Rachelle Lombardi, The Evaluation of Children’s Impairments in Determining Disability under the
Supplemental Security Income Program, 57 FORDHAM L. REV. 1107 (1989).
207. Id.
208. Mark D. DeBofsky, Social Security Disability Law: A Game Plan, TRIAL 18 (June 1988).
209. The SSA maintains a website that, among many things, explains SSI and SSDI. The “Red Book” for the current year can be found at
https://www.ssa.gov/redbook/eng/overview-disability.htm.
210. For instance, individuals qualifying for Social Security Disability Insurance (SSDI) become entitled to Medicare, whereas those
qualifying for Supplemental Security Income (SSI) generally become eligible for Medicaid. Id. at 18. See also Michael C. Parks, The
Relationship between Medicaid and Social Security Administration Disability Determinations: An Introduction for Advocates, 25(12)
CLEARINGHOUSE REV. 1566 (Apr. 1992). Parks’s article provides a very good introduction for those wishing to acquire more information

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on the complex relationship between SSA determinations and state determinations of Medicaid eligibility. In addition, Congress has taken steps
in recent years to enable individuals with disabilities to retain benefits such as Medicaid in some instances, to remove disincentives to work. See
infra note 216 and accompanying text.
211. Statement of Peter I. McGough, Associate Director, Human Resources Division, U.S. General Accounting Office, before the Senate
Special Comm. on Aging, 98th Cong., 1st Sess. 6 (1983) [hereinafter GAO Testimony].
212. City of New York v. Heckler, 578 F. Supp. 1109 (E.D.N.Y.), aff’d, 742 F.2d 729 (2d Cir. 1984), aff’d sub nom. Bowen v. City of New
York, 476 U.S. 467 (1986). Prior to Heckler, the policies pursued by the SSA resulted in a precipitous decline in the numbers of people
receiving favorable SSI determinations, and in approximately 500,000 having benefits terminated; furthermore, people with mental disabilities
were singled out for such terminations. Richard E. Levy, Social Security Claimants with Developmental Disabilities: Problems of Policy and
Practice, 39 KAN. L. REV. 529, 530–40 (1991). After the Supreme Court’s ruling, the SSA changed its policy to one of encouraging people to
apply for benefits, and funded outreach programs designed to locate people who were eligible for benefits but had not yet applied. See, e.g., SSI
Outreach Demonstration Program for FY 1992, 56 Fed. Reg. 4784 (Sept. 20, 1991) (announcing the availability of funds and requesting
applications for “cooperative agreements which increase outreach efforts to needy aged, blind, and disabled individuals who are potentially
eligible for the SSI program”).
213. In 1984, Congress enacted the Social Security Disability Benefits Reform Act of 1984, 42 U.S.C. § 1305, directing the SSA to revise
the criteria for determining whether an individual had a mental impairment and whether the impairment had a significant impact on the
person’s ability to work.
214. Jennifer L. Erkulwater, The Judicial Transformation of Social Security Disability: The Case of Mental Disorders and Childhood Disability,
8 CONN. INS. L.J. 401 (2001–02) (noting that between 1985 and 1998 the number of disabled adults receiving SSI payments nearly doubled
from 1.9 million to 3.6 million, and the number of disabled children rose fourfold, but that “enrollment and application for SSI [have] dropped
off sharply since 1996” due to Congressional efforts at welfare reform).
215. 42 U.S.C. 423(d)(2)(C) (1996); Dru Stevenson, Should Addicts Get Welfare?: Addiction & SSI/SSDI, 68 BROOKLYN L. REV. 185
(2002). One study concluded that as a result of this legislative change, a number of individuals with co-occurring disorders (mental illness and
substance use) lost benefits, either because they were incorrectly certified as primarily substance-using or because they did not appeal the
decision stripping them of benefits. Katherine E. Watkins et al., Termination of Social Security Benefits among Los Angeles Recipients Disabled
by Substance Abuse, 50 PSYCHIATRIC SERV. 914 (1999). Despite the statute, however, some courts have permitted benefits to go to people
with substance abuse problems, as long as the substance abuse is not the primary cause of disability. See, e.g., Nieves v. Astrue, 2008 WL
4277995, at *3 (D. Colo. 2008); see also Marc Rosen et al., Effect of Social Security Payments on Substance Abuse in a Homeless Mentally Ill
Cohort, 41 HEALTH SERV. 173 (2006) (4-year study showing that receipt of benefits and drug abuse were not correlated).
216. Congress enacted two pieces of legislation in the late 1990s designed to create incentives for people with disabilities to work without risk
of losing other benefits automatically. Under the Ticket to Work and Work Incentives Improvement Act of 1999, individuals with disabilities
were no longer referred automatically to state-run vocational rehabilitation programs, but could buy “tickets” to purchase employment training
services from qualified “Employment Networks.” The Workforce Investment Act of 1998 permitted individuals with disabilities to continue to
maintain Medicaid coverage while working. Both legislative initiatives were designed to create greater self-sufficiency among people with
disabilities—a policy foundation at the core of President George W. Bush’s New Freedom Initiative. For an excellent discussion of this
legislation, its effectiveness, and its interaction with the ADA, see Blanck et al., supra note 4; see also James Schmeling et al., The New
Disability Law and Policy Framework: Implications for Case Managers, in CASE MANAGEMENT FOR REHABILITATION
PROFESSIONALS (Fong Chang & Jodi Saunders eds., 2d ed. 2004).
217. In the Social Security program, approximately one-third of working-age adults receiving SSI had a primary psychiatric impairment.
Robert Drake et al., Social Security and Mental Illness: Reducing Disability with Supported Employment, 28 HEALTH AFF. 761 (2009);
LaDonna Pavetti et al., Mental Disorders and Service Use among Welfare and Disability Program Participants in Fee-for-Service Medicaid, 61
PSYCHIATRIC SERV. 495 (2010). In the SSDI program, disability benefits were paid to 10.2 million people in 2014, with mental disorders
accounting for approximately one-half the diagnoses. SOCIAL SECURITY ADMINISTRATION, ANNUAL STATISTICAL REPORT
ON THE SOCIAL SECURITY DISABILITY PROGRAM, 2014 (2015).
218. This definition is found in the SSDI statutory scheme at 42 U.S.C. § 423(d)(1)(A) (1991), and in the SSI scheme at 42 U.S.C. §
1382c(a)(3)(A) (1991).
219. This requirement is contained at 42 U.S.C. § 423 (d)(2)(A) (1991) for SSDI, and at 42 U.S.C. § 1382c(a)(3)(B) (1991) for SSI.
220. See generally 20 C.F.R. §§ 404.1505 through 404.1599 (1993).
221. 20 C.F.R. § 404.1510 (1993).
222. 20 C.F.R. § 404.1572 (1993).
223. 20 C.F.R. §§ 404.1520 & 404.1521(b) (1993).
224. 20 C.F.R. § 404, subpt. P., app. I, chs. 12.00 and 112.00 (2017).

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 225. 20 C.F.R. § 404.1520a (2012).
226. See, e.g., Moore v. Sullivan, U.S. App. LEXIS 3312 (5th Cir. 1990) (holding that schizophrenia can meet the duration requirement
even if it has been in remission for some period during last 12 months); Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986). See also Wright v.
Barnhart, 284 F. Supp. 2d 1277 (D. Kan. 2003) (overturning a decision by an administrative law judge that a person with paranoid
schizophrenia did not meet disability standards, and that occasional nonadherence to treatment on its face makes the person ineligible for
benefits). In determining the relevance of alcohol or substance use, the decision maker must first go through the five step process to determine if
the person has a disability. Armstrong v. Astrue, Civil Action 09-2405-CM-GBC (D. Ct. Kan. 2010).
227. Bowen v. Yuckert, 482 U.S. 137, 141 (1987). See also Bowen v. City of New York, 476 U.S. 467, 471 (1986), in which the Court
observed that “if a claimant’s condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to
benefits.”
228. 20 C.F.R. § 404, subpt. P., app. I, chs. 12.00 and 112.00 (2016).
229. Id.
230. 20 C.F.R. § 404.1520(e) (1993).
231. Barnhart v. Thomas, 540 U.S. 20 (2003).
232. 20 C.F.R. § 404.1520(f) (1993).
233. 20 C.F.R. § 404.1545 (1993).
234. These guidelines are titled DI 25025.005: Exhibit of Appendix 2—Medical–Vocational Guidelines, available at
policy.ssa.gov/poms.NSF/lnx/0425025005.
235. 42 U.S.C. § 423(d)(3) (1991).
236. Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981).
237. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999). Justice Breyer noted, for example, that the ADA required
consideration of reasonable accommodation but that Social Security law did not, suggesting that an ADA claim that a person could do a job
with accommodation was not necessarily inconsistent with an SSDI claim asserting disability without considering accommodation. This case has
been reviewed favorably by at least one commentator. See Dominique Jones-Sam, Cleveland v. Policy Management Systems: A Step towards
Equity, 27 S.U. L. REV. 63 (1999).
238. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193.
239. 42 U.S.C. § 1382c(a)(3) (1993).
240. 493 U.S. 521 (1990).
241. Id. at 535 n.15, citing House Committee on Ways and Means, Background Material and Data on Programs within the Jurisdiction of the
Committee on Ways and Means, 101st Cong., 1st Sess. 46 (1989).
242. Other data from the House Committee on Ways and Means report, supra note 241, indicated that the SSA had significantly reduced
the proportion of cases in which it found that individuals had an impairment meeting or comparable to those on the listings. In 1975, for
instance, a match between the individual and list was found in 43.9% of the cases; in 1983, that figure had fallen to 8.3%, rising slightly in the
next few years to 11.0% in 1988. See Richard P. Weishaupt & Robert E. Rains, Sullivan v. Zebley: New Disability Standards for Indigent
Children to Obtain Government Benefits, 35 SOC. SEC. REP. SER. 3 n.115 (1992). These figures suggested the importance of the additional
steps for adults, because if the SSA was engaged in an effort to reduce benefit eligibility by applying the impairment criteria restrictively, the
additional steps provided another opportunity for an individual to gain benefits.
243. 493 U.S. at 539.
244. 42 U.S.C. § 1382c(a)(3) (1996).
245. Id.
246. Bazelon Center for Mental Health Law, The Impact of Children’s SSI Program Changes in Welfare Reform 1, 2 (Aug. 7, 1996).
247. Id.
248. 42 U.S.C. § 423 (1993).
249. See, e.g., Social Security Administration, DI 28005.021 Title XVI: Determining Continuing Disability at Step 2 of the Medical
Improvement Review Standard Sequential Evaluation Process for Children under Age 18—Functional Equivalence (July 6, 2005), available at
https://secure.ssa.gov/poms.nsf/lnx/0428005021#b; see also 20 C.F.R. § 416.924 (1993).
250. 20 C.F.R. § 416.924 (1993) et seq.
251. Id.
252. SOCIAL SECURITY ADMINISTRATION, DISABILITY EVALUATION UNDER SOCIAL SECURITY, MENTAL
LISTINGS, available at https://secure.ssa.gov/poms.nsf/lnx/0434232005.
253. SOCIAL SECURITY ADMINISTRATION, DISABILITY EVALUATION UNDER SOCIAL SECURITY, available at
https://www.ssa.gov/disability/professionals/bluebook [hereinafter BLUE BOOK].

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 254. 20 C.F.R. 416.926a (2001).
255. Id.
256. The federal government’s rules for making disability determinations are found in a publication titled Program Operations Manual
System (POMS). For information relevant to examiners evaluating disability in children, see POMS DI 25225.035, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0425225035, and 20 C.F.R. § 416.926a(h), as well as POMS DI 34232.005, available at
https://secure.ssa.gov/poms.nsf/lnx/0434232005.
257. See https://www.ssa.gov/disability/determination.htm.
258. See generally Ronald Gilbert & J. Douglas Peters, The Social Security Disability Claim, 24(6) PRAC. LAW. 47, S3 (1979).
259. 42 U.S.C. § 421 (1991); 20 C.F.R. § 416.1010 (2006).
260. 20 C.F.R. § 416.913 (2006).
261. 20 C.F.R. § 416.1018 (2006). The Secretary of Health and Human Services may overrule the state agency’s conclusion, however. 20
C.F.R. § 416.903 (2006).
262. See generally 20 C.F.R. § 416.1417 (2006).
263. For a discussion of the role of a vocational expert in these hearings, see SOCIAL SECURITY ADMINISTRATION OFFICE OF
DISABILITY ADJUDICATION AND REVIEW/OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE, VOCATIONAL
EXPERT HANDBOOK (2011).
264. Thompson v. Schweiker, 549 F. Supp. 51, 52 (D. Or. 1982); Christensen v. Bowen, 633 F. Supp. 1214, 1222 (N.D. Cal. 1986).
265. SSA. CONSULTATIVE EXAMINATIONS: A GUIDE FOR HEALTH PROFESSIONALS, available at
https://www.ssa.gov/disability/professionals/greenbook/ce-guidelines.htm.
266. 20 C.F.R. § 416.1417 (1993).
267. See generally 20 C.F.R. § 416.1423 et seq. (describing the process for expedited appeal to a federal district court) and 20 C.F.R. §
416.1429 et seq. (describing the process of appeal to an administrative law judge and subsequent proceedings).
268. Alan K. Goldhammer, Evidentiary Considerations in Disability Adjudication—A Judge’s Perspective, 44 ADMIN. L. REV. 445–52
(1992).
269. The district court in Heckler, supra note 212, found that “the mentally ill are particularly vulnerable to bureaucratic errors. Some do not
even understand the communications they receive from SSA. Others are afraid of the system. Even with help from social workers and others,
many do not appeal denials or terminations. An erroneous termination or denial of benefits to a mentally ill person means more than that he or
she will no longer receive benefits. To many it may mean a severe medical setback. [A psychiatrist] testified that one of her patients who had
not been hospitalized for fifteen years was hospitalized as a result of the trauma of having benefits cut off. This was not a unique case. Some slip
into acute paranoia while others become suicidal.” 578 F. Supp. at 1115.
270. Special Report: Guidelines for Psychiatric Evaluation of Social Security Disability Claimants, 34 HOSP. & COMMUNITY
PSYCHIATRY 1044, 1048 (1983) [hereinafter Special Report].
271. 20 C.F.R. § 404, subpt. P., app. I, chs. 12.00 and 112.00 (2017).
272. Id. at 12.00E.
273. This form and related forms can be obtained by writing to the SSA, Office of Disability, Division of Medical and Vocational Policy, 3-
A-10 Operations Building, 6401 Security Bldg., Baltimore, MD 21235. They can also be obtained online, at
https://www.masslegalservices.org/system/files/library/new_prtf.pdf.
274. As with every topic discussed in this chapter, the SSA provides not only examples of forms such as this, but the text of all regulations as
well as extensive commentary.
275. Commentary, Disability Determination: Psychiatrists Needed, 36 HOSP. & COMMUNITY PSYCHIATRY 337 (1985).
276. GAO Testimony, supra note 211, at 16.
277. Special Report, supra note 270, at 1048. As another example, the American Psychiatric Association notes that statements such as “this
patient has a severe ongoing depression that completely immobilizes him” are inadequate, because the regulations require support for this
conclusion by “symptoms, signs, and laboratory findings.” Id. at 1047 n.196.
278. SSA Program Circular, Office of the New York Regional Commissioners, No. 6-79 (Aug. 22, 1979).
279. Id. at 3; see also BLUE BOOK, supra note 253, and text accompanying that note.
280. 20 C.F.R. § 416.930 (2001).
281. Special Report, supra note 270, at 1048–51.
282. Id. at 1048–51.
283. Gail A. Edelsohn, Commentary, Using Scales Assessing Functional Impairment in Supplemental Security Income Eligibility
Determination, 44 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 339 (2005).
284. 20 C.F.R. § 416.926a (2001). The regulations tell the claimant: “We will ask for information from your treating and other medical

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sources who have seen you and can give us their medical findings and opinions about your limitations and restrictions. We will also ask for
information from your parents and teachers, and may ask for information from others who see you often and can describe your functioning at
home, in childcare, at school, and in your community. We may also ask you to go to a consultative examination(s) at our expense.”
285. 20 C.F.R. § 404, subpt. P, app. 1, ch. 112.00 (2001).
286. 20 C.F.R. § 404, subpt. P, app. 1, ch. 112.00E (2017).
287. 20 C.F.R. § 404, subpt. P, app. 1, ch. 112.00F (2017).
288. The grounds for which an alien may be denied admission are found in the Immigration and Nationality Act, 8 U.S.C. § 1182.
289. Many of the grounds for which an alien may be deported subsequent to admission are found at 8 U.S.C. § 1227.
290. For more information about the Executive Office for Immigration Review (EOIR), its operation, and immigration proceedings more
generally, see https://www.justice.gov/eoir (accessed Oct. 31, 2016).
291. U.S. DEP’T OF JUSTICE, EOIR. OFFICE OF PLANNING, ANALYSIS, & TECHNOLOGY, FY 2015 STATISTICAL
YEAR BOOK A2 (2016).
292. Forty-four percent of respondents whose cases were completed in immigration courts in 2012 were not represented by counsel. U.S.
DEP’T OF JUSTICE, EOIR. OFFICE OF PLANNING, ANALYSIS, & TECHNOLOGY, FY 2012 STATISTICAL YEAR BOOK A1
(2013) [hereinafter FY 2012 STATISTICAL YEAR BOOK].
293. 8 U.S.C. §1182(h)(1)(B).
294. Consistent with our position throughout this book [see § 18.07], we advise that mental health professionals limit their opinions to a
description of how the examinee’s functioning would be affected by the alien’s absence. Describing such hardships as “extreme” or “exceptional
and extremely unusual” can cause obvious problems, illustrating why mental health professionals should refrain from offering opinion on the
ultimate legal issue.
295. Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005) (noting that “extreme hardship” must be shown).
296. Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231.
297. For discussions of common effects of torture and the mental health assessment of persons making such claims, see Thomas A.
Campbell, Psychological Assessment, Diagnosis, and Treatment of Torture Survivors: A Review, 27 CLINICAL PSYCHOL. REV. 628 (2007);
Scott R. Vrana et al., Survey of National Consortium of Torture Treatment Program Therapists about the Assessment, Diagnosis, and Treatment
of the Psychological Sequelae of Torture, 19 TRAUMATOLOGY 144 (2013); Amanda C. de C. Williams & Jannie van der Merwe, The
Psychological Impact of Torture, 7 BRIT. J. PAIN 1 (2013); Laurence J. Kirmayer et al., Trauma and Disasters in Social and Cultural Context, in
PRINCIPLES OF SOCIAL PSYCHIATRY 155, 163–64 (Craig Morgan & Dinesh Bhugra eds., 2010).
298. 8 U.S.C. § 1101(a)(42).
299. 8 U.S.C. § 1158.
300. 8 U.S.C. § 1182(a)(6)(A)(ii); 8 U.S.C. §1229b(b)(2). See also Violence Against Women Act, 8 U.S.C. § 1154(a)(1)(A)(iii).
301. See Matter of Cervantes, 22 I &N Dec. 560 (BIA 1999).
302. According to one report over a decade ago, of those individuals in the United States on unauthorized status, 14% are children, many of
whom are unaccompanied by a parent or guardian. Jeffrey S. Passel, Unauthorized Migrants and Immigrants (Pew Hispanic Center, Jan. 14,
2005).
303. 8 C.F.R. § 204.11 (2009).
304. 8 U.S.C. 1101(a)(27)(J)(iii).
305. Julie Rahbany, Special Immigrant Juvenile Status, in THE WAIVERS BOOK: ADVANCED ISSUES IN IMMIGRATION LAW
PRACTICE 27 (I. Scharf et al. eds., 2011) [hereinafter THE WAIVERS BOOK].
306. 8 U.S.C. §1229a(c)(4)(A).
307. Philip Hornik, Cancellation of Removal for Lawful Permanent Residents: Suggestions for Obtaining a Favorable Exercise of Discretion, in
THE WAIVERS BOOK, supra note 305, at 27.
308. 18 U.S.C. § 3142(g).
309. 8 U.S.C. § 1182(a)(1)(A)(iii); Centers for Disease Control and Prevention, Technical Instructions for Panel Physicians and Civil
Surgeons, available at https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions/civil-surgeons/required-evaluation-
components/other-disease-disability.html [hereinafter Technical Instructions].
310. 8 U.S.C. § 1182(g)(3).
311. Technical Instructions, supra note 309.
312. 8 C.F.R. §§ 1240.4, 1240.43 (2010).
313. 8 U.S.C. 1229a(b)(3); see also 8 C.F.R. § 1003.10(b) (2010); Nee Hao Wong v. INS, 55 F.2d 521,523 (9th Cir. 1977) (holding that the
due process rights of an alien with mental disorder were not violated when he was represented by counsel and was accompanied by a state court-
appointed conservator who testified in his behalf).

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 314. 25 I&N Dec. 474, 2011 WL 1733182 (BIA 2011).
315. Id. at 484.
316. Id. at 474.
317. Id. at 479.
318. U.S. Dep’t of Justice, EOIR, Phase I of Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with
Mental Disorders 2 (2013), available at https://immigrationreports.files.wordpress.com/2014/01/eoir-phase-i-guidance.pdf [hereinafter Phase I
of Plan]. See also Franco-Gonzalez v. Holder, 2014 WL 5475097, at *6–7 (C.D. Cal. 2014) (also requiring an ability to “act upon instructions
and information presented by the immigration judge and government counsel”).
319. Phase I of Plan, supra note 318, at 5.
320. Id. at 7.
321. Id. at 14.
322. Id. at 15. See also Franco-Gonzalez v. Holder, 2014 WL 5475097, at *6–7 (C.D. Cal. 2014) (in which the Department of Justice agreed
to provide “qualified representatives” for detained aliens who were adjudicated incompetent to represent themselves in immigration
proceedings).
323. For elaboration of these points, see Caleb Korngold et al., Mental Health and Immigrant Detainees in the United States: Competency and
Self-Representation, 43 J. AM. ACAD. PSYCHIATRY & L. 277 (2015); Sarah Filone & Christopher M. King, The Emerging Standard of
Competence in Immigration Removal Proceedings: A Review for Forensic Mental Health Professionals, 21 LAW & HUM. BEHAV. 60 (2015).
324. Some of the unique challenges mental health professionals face when conducting evaluations in these proceedings are discussed in
Korngold et al., supra note 323; K. Musalo et al., The Role of Mental Health Professionals in Political Asylum Proceedings, 38 J. AM. ACAD.
PSYCHIATRY & L. 479 (2010); I. Bruce Frumkin, Forensic Evaluations in Immigration Cases: Evolving Issues, 13 BEHAV. SCI. & L. 447
(1995); Andrew Rasmussen et al., Posttraumatic Stress Disorder among Refugees: Measurement Invariance of Harvard Trauma Questionnaire
Scores across Global Regions and Response Patterns, 20 PSYCHOL. ASSESSMENT 1 (2015).
325. Data from the Department of Justice indicate that 276 different languages were spoken in immigration proceedings in 2012. FY 2012
STATISTICAL YEAR BOOK, supra note 292, at A1.
326. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 833–37 (5th ed.
2013) (Glossary of Cultural Concepts of Distress).
327. There is a growing literature describing the emotional, behavioral, and cognitive functioning of populations likely to appear in
immigration court. See, e.g., Allen Keller et al., Mental Health of Detained Asylum Seekers, 362 LANCET 1721 (2003); Gilberto De Jesús-
Rentas et al., Central American Victims of Gang Violence as Asylum Seekers: The Role of the Forensic Expert, 38 J. AM. ACAD. PSYCHIATRY
& L. 490 (2010). Q. Alemi et al., Psychological Distress in Afghan Refugees, 16 J. IMMIGRANT & MINORITY HEALTH 1247 (2014).
328. Eugenio M. Roth et al., Posttraumatic Stress Disorder among Cuban Children and Adolescents after Release from a Refugee Camp, 53
PSYCHIATRIC SERV. 970 (2002) (describing negative effects of postmigration detention); Tammy Bean et al., Comparing Psychological
Distress, Traumatic Stress Reactions, and Experiences of Unaccompanied Refugee Minors with Experiences of Adolescents Accompanied by Parents,
195 J. NERVOUS & MENTAL DISEASE 288 (2007) (describing negative effects on migrant children of being unaccompanied); Stuart L.
Lustig et al., Review of Child and Adolescent Refugee Mental Health, 43 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 24
(2004) (same); Matthew Hodes et al., Risk and Resilience for Psychological Distress amongst Unaccompanied Asylum Seeking Adolescents, 49 J.
CHILD PSYCHOL. & PSYCHIATRY 723 (2008) (same); Paul L. Geltman et al., The “Lost Boys of Sudan”: Functional and Behavioral
Health of Unaccompanied Refugee Minors Re-Settled in the United States, 159 ARCHIVES PEDIATRICS & ADOLESCENT MED. 585
(2005) (describing negative effects on children of separation from family members after entry); Alma Sujoldzic et al., Social Determinants of
Health—A Comparative Study of Bosnian Adolescents in Different Cultural Contexts, 30 COLLEGIUM ANTROPOLOGICUM 703 (2006)
(describing negative effects of discrimination in host country); Zelda Porte & Judith Torney-Purta, Depression and Academic Achievement
among Indochinese Refugee Unaccompanied Minors in Ethnic and Nonethnic Placements, 57 AM. J. ORTHOPSYCHIATRY 536 (1987)
(describing positive effects of acculturation). But see Anders Hjern et al., Political Violence, Family Stress and Mental Health of Refugee Children
in Exile, 26 SCANDINAVIAN J. SOC. MED. 18–25 (1998) (describing mixed effects of lack of social cohesion); Cecile Rousseau et al., Risk
and Protective Factors in Central American and Southeast Asian Refugee Children, 11 J. REFUGEE STUDIES 20–37 (1998) (same).
329. See Allen Keller et al., Mental Health of Detained Asylum Seekers, 362 LANCET 1721 (2003).
330. De Jesús-Rentas et al., supra note 327.
331. For example, the Harvard Trauma Questionnaire, a measure with utility within some regions and designed to be used broadly across
populations, nonetheless showed variance across cultures. Within some groups (Himalayan and West African), the measure showed significant
variance on all scores, and measures designed for North American and European populations may not hold globally. Rasmussen et al., supra
note 324.
332. See, e.g., Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008), described in Christopher Daley & John R. Chamberlain, Mental
Health Considerations for Asylum, 38 J. AM. ACAD. PSYCHIATRY & L. 278 (2010). In this case, the court of appeals considered the abuse

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the applicant suffered prior to migration, the age at which the incidents occurred, whether the alleged mental illness met criteria consistent with
the individual’s cultural framework, and the respondent’s treatability in this country and in the country of origin in determining whether he
qualified for refugee. See also Lynn H. Fujiwara, Immigrant Rights Are Human Rights: The Reframing of Immigrant Entitlement and Welfare, 52
SOC. PROBS. 79 (2005).

Chapter 14

1. GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL
HEALTH PROFESSIONALS AND LAWYERS 291 (1987) (notes omitted).
2. NAT’L RESEARCH COUNCIL (NRC), REFORMING JUVENILE JUSTICE: A DEVELOPMENTAL APPROACH 41–42
(Richard J. Bonnie et al. eds., 2013) (citation omitted) [hereinafter REFORMING JUVENILE JUSTICE]. The NRC acknowledged,
however, that the pace of reform, when viewed from a national perspective, has been “sluggish.” Id. at 4. Moreover, contemporary juvenile
justice has a greater focus on offender accountability and public safety than that found in the rehabilitative ideal of the early juvenile court. Id. at
46. See also id. at 10–11 (positing that “[promoting] accountability,” “preventing criminal reoffending,” and “[modeling] fairness” should be
guiding principles for juvenile justice reform).
For a detailed and critical history of the evolution of the juvenile court in the twentieth century, see BARRY C. FELD, BAD KIDS: RACE
AND THE TRANSFORMATION OF THE JUVENILE COURT (1999). Perhaps the next step in the 21st-century evolution of juvenile
justice policy is more extensive consideration of the application of some of the purported leniency of the juvenile law to apply to young adults in
their early 20s—a reflection in part of the generational shifts in the level of economic and social independence experienced by individuals in
their late teens and twenties. See Elizabeth S. Scott et al., Young Adulthood as a Transitional Legal Category: Science, Social Change, and Justice
Policy, 85 FORDHAM L. REV. 641 (2016).
3. Ira M. Schwartz, Juvenile Crime-Fighting Policies: What the Public Really Wants, in JUVENILE JUSTICE AND PUBLIC POLICY:
TOWARD A NATIONAL AGENDA 214 (Ira M. Schwartz ed., 1992) [hereinafter PUBLIC POLICY]. For reviews of the pertinent
evidence, see HOWARD M. SNYDER & MELISSA M. SICKMUND, JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL
REPORT (Mar. 2006), available at https://www.ojjdp.ncjrs.gov/ojstatbb/nr2006/downloads/NR2006.pdf; JEFFREY A. BUTTS, YOUTH
VIOLENCE: PERCEPTION VERSUS REALITY (1999); James C. Howell et al., Trends in Juvenile Crime and Youth Violence, in
SERIOUS, VIOLENT, AND CHRONIC JUVENILE OFFENDERS: A SOURCEBOOK 1 (James C. Howell et al. eds., 1995)
[hereinafter SOURCEBOOK].
4. Only about 25% of adults are confident that the juvenile justice system is effective in stopping either violent or nonviolent crimes, although
most (89%) believe that rehabilitative services can help prevent crime. Barry Krisberg & Susan Marchionna, Attitudes of U.S. Voters toward
Youth Crime and the Justice System 3 (Feb. 2007) (briefing in the FOCUS series of the National Council on Crime and Delinquency). See infra
notes 41–42 and accompanying text.
5. During the early 1990s, there was a dramatic increase in the number of judicial transfers of juveniles to criminal courts. U.S. GENERAL
ACCOUNTING OFFICE (GAO), JUVENILE JUSTICE: JUVENILES PROCESSED IN CRIMINAL COURT AND CASE
DISPOSITIONS (Aug. 1995) (Report No. GAO/GGD-95-170). Between 1988 and 1992, juvenile transfers increased by two-thirds, almost
three times faster than the number of juvenile cases overall. JEFFREY A. BUTTS, DELINQUENCY CASES IN JUVENILE COURT,
1992 (July 1994), at 1–2. The trend reversed between 1994 and 2001, so that the number of judicial transfers declined by about 40%, but the
trend reversed again between 2001 and 2002 when transfers increased by 13%. ANNE L. STAHL, DELINQUENCY CASES IN
JUVENILE COURT, 2002 (Nov. 2006), at 1–2. The seeming decline in transfers in the second half of the 1990s was probably illusory,
because numerous states had instituted statutory mandatory waivers (waivers without judicial review) or reduced juvenile jurisdiction overall
(e.g., by lowering the maximum age of juvenile jurisdiction). See infra notes 51–52 and accompanying text. Determining the strength and scope
of trends on the boundaries of juvenile justice is difficult, because most states do not provide complete and public accounting of the frequency of
transfers from juvenile to criminal jurisdiction. Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting
(Sept. 2011) (policy brief published by the Office of Juvenile Justice and Delinquency Prevention in JUVENILE OFFENDERS AND
VICTIMS: NATIONAL REPORT SERIES).
6. Daniel M. Filler & Austin E. Smith, The New Rehabilitation, 91 IOWA L. REV. 951 (2006); see also REFORMING JUVENILE
JUSTICE, supra note 2, at 1 (noting contemporary doubts about the wisdom of criminalizing juvenile justice, given the research on behavioral
differences between adults and adolescents).
7. MELTON ET AL., supra note 1, at 291.
8. Although the term “infant” has come to have a colloquial meaning referring to very young children, in law the use is broader—for example,
it is synonymous in some contexts with “minor”—and suggests both the continual raising of the threshold age for special status and the law’s
lack of recognition of the differences among children of various ages. The virtual absence of the term “adolescence” from legal commentary is

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illustrative. See Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799, 803 (2003); FRANKLIN E. ZIMRING,
THE CHANGING LEGAL WORLD OF ADOLESCENCE xi–xii (1982).
9. WAYNE R. LAFAVE, CRIMINAL LAW 485–86 (4th ed. 2003).
10. Janet E. Ainsworth, Youth Justice in a Unified Court: Response to Critics of Juvenile Court Abolition, 36 B.C. L. REV. 927, 931–32
(1995). See generally JOSEPH KETT, RITES OF PASSAGE (1977).
11. See ANTHONY PLATT, THE CHILD SAVERS: THE INVENTIONS OF DELINQUENCY (2d ed. 1977); Elizabeth S. Scott &
Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY
137, 142–45 (1997).
12. G. STANLEY HALL, ADOLESCENCE: ITS PSYCHOLOGY AND ITS RELATIONS TO PHYSIOLOGY,
ANTHROPOLOGY, SOCIOLOGY, SEX, CRIME, RELIGION, AND EDUCATION (1904).
13. See Franklin E. Zimring, The Common Thread: Diversion in Juvenile Justice, 88 CAL. L. REV. 2477, 2482–83 (2000). See generally
KETT, supra note 10.
14. Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL’Y REV. 143, 145–148 (2003). The first juvenile
code (in Illinois) was not enacted until 1899. The development of the juvenile court was coincident with the adoption of compulsory education
and child labor laws. See Ainsworth, supra note 10. These developments were paralleled by events in Scandinavia, where like-minded reformers
established an administrative, therapeutic system for juvenile justice and child welfare. TOVE STANG DAHL, CHILD WELFARE AND
SOCIAL DEFENCE (1985).
15. The parens patriae power is based on the state’s duty to protect dependent persons and their property. The application of this power to
quasi-criminal jurisprudence is dubious; it is certainly outside the centuries-old common-law meaning of the term. See In re Gault, 387 U.S. 1,
16–17 (1967).
16. This practice of using civil terms (e.g., “respondent” instead of “defendant”) persists in most jurisdictions, despite the repudiation of the
concept that the juvenile court is really civil.
17. In re Gault, 387 U.S. 1, 14 n.14.
18. The “legal realism” school of jurisprudence, which was especially influential in the first half of this century, is based on a belief that the
law is not a static, “natural” whole, but that it should respond to social realities and needs. See Gerald B. Wetlaufer, Systems of Belief in Modern
American Law: A View from Century’s End, 49 AM. U. L. REV. 1, 17–21 (1999).
19. The use of the term “science” is arguably a misnomer, in that the reformers were actually interested in the application of social welfare
principles to the law. The “science” involved was to be experts’ judgments of the best interests of the child, as derived from new penological
principles. See Jeffrey A. Butts & Ojmarrh Mitchell, Brick by Brick: Dismantling the Border between Juvenile and Adult Justice, in 2
CRIMINAL JUSTICE 2000: BOUNDARY CHANGES IN CRIMINAL JUSTICE ORGANIZATIONS 172 (Charles M. Friel ed.,
2000).
20. See WALTER F. MURPHY & C. HERMAN PRITCHETT, COURTS, JUDGES, AND POLITICS: AN INTRODUCTION
TO THE JUDICIAL PROCESS 5 (3d ed. 1979).
21. Address to the National Council of Juvenile Court Judges (1950), cited in Lamar T. Empey, Introduction: The Social Construction of
Childhood and Juvenile Justice, in THE FUTURE OF CHILDHOOD AND JUVENILE JUSTICE 1, 25 (Lamar T. Empey ed., 1979).
22. “Social facts” are the “recurrent patterns of behavior on which policy must be based.” DONALD L. HOROWITZ, THE COURTS
AND SOCIAL POLICY 45 (1977).
23. Kent v. United States, 383 U.S. 541, 556 (1966).
24. 387 U.S. 1 (1967).
25. Id. at 28.
26. Id. at 19.
27. Id. at 18.
28. Id. at 26.
29. Id. at 13.
30. For the range of questions about children’s rights that the United States Supreme Court considered until about 1990, see Gary B.
Melton, Rights of Adolescents, in 2 ENCYCLOPEDIA OF ADOLESCENCE 930 (Richard M. Lerner et al. eds., 1991).
31. 387 U.S. at 31–57.
32. Id. at 17.
33. Id. at 19.
34. McKeiver v. Pennsylvania, 403 U.S. 528, 547, 551 (1971).
35. See, e.g., Barry C. Feld, The Constitutional Tension between Apprendi and McKeiver: Sentence Enhancements Based on Delinquency
Convictions and the Quality of Justice in Juvenile Courts, 38 WAKE FOREST L. REV. 1111, 1152–59 (2003).

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 36. See generally Emily Buss, The Missed Opportunity in Gault, 70 U. CHI. L. REV. 39, 53 (2003) (“To secure children’s meaningful
participation, the juvenile justice system must offer children a process very different from the formal adversarial process afforded adults charged
with crimes”); N. Lee Cooper & Patricia Puritz, Fulfilling the Promise of In re Gault: Advancing the Role of Lawyers for Children, 33 WAKE
FOREST L. REV. 651, 655–60 (1998); Kristin Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory and the Role of Child’s
Counsel in Delinquency Cases, 81 NOTRE DAME L. REV. 245 (2005); Ellen Marrus, Best Interests Equal Zealous Advocacy: A Not So Radical
View of the Holistic Representation for Children Accused of Crime, 62 MD. L. REV. 288 (2003).
37. For an attempt to reconcile these objectives, see CHRISTOPHER SLOBOGIN & MARK R. FONDACARO, JUVENILES AT
RISK: A PLEA FOR PREVENTIVE JUSTICE (2011).
38. Schwartz, supra note 3. See also Ira M. Schwartz et al., Combatting Juvenile Crime: What the Public Really Wants (Apr. 1992)
(monograph available from the Center for the Study of Youth Policy, University of Pennsylvania School of Social Work).
39. Julie Ray, Public: Adult Crimes Require Adult Time (Nov. 11, 2003) (report by the Gallup Poll).
40. From 1980 to 2007, the incarceration rate in the United States steadily increased from 220 inmates per 100,000 people in 1980 to 760
inmates per 100,000 people in 2007. Since that time, the incarceration rate has decreased to 690 inmates per 100,000 people in 2014. U.S.
Bureau of Justice Statistics, Key Statistic: Incarceration Rate, available at https://www.bjs.gov/index.cfm?ty=kfdetail&iid=493 (accessed Oct. 23,
2016).
41. Justin McCarthy, Americans’ Views Shift on Toughness of Justice System (Oct. 20, 2016) (report by Gallup Poll); Heather Mason Keifer,
Public on Justice System: Fair but Still Too Soft (Feb. 3, 2004) (report by Gallup Poll).
42. Krisberg & Marchionna, supra note 4, at 1. See also ELIZABETH SCOTT & LAURENCE STEINBERG, RETHINKING
JUVENILE JUSTICE: A DEVELOPMENTAL MODEL OF YOUTH CRIME 281 (2008) (reporting national survey showing that, even
with respect to violent juvenile offenders, more lenient sanctions are preferred over incarceration when they are “effective”).
43. BUTTS, supra note 3; see SNYDER & SICKMUND, supra note 3.
44. Barry C. Feld, Will the Juvenile Court System Survive?: The Honest Politician’s Guide to Juvenile Justice in the Twenty-First Century, 564
ANNALS AM. ACAD. POL. & SOC. SCI. 10, 11 (1999); Schwartz, supra note 4, at 215; Robert E. Shepherd, Jr., Recapturing the Child in
Adult Court, 16 CRIM. JUST. 58, 58 (2002).
45. FRANKLIN E. ZIMRING, AMERICAN YOUTH VIOLENCE 11–12 (1998).
46. See Christopher Slobogin, Treating Juveniles like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction, 46 TEX.
TECH L. REV. 103, 103–105 (2013) (describing the punitive trends in both transfer and age jurisdiction); Elizabeth Scott, Miller v. Alabama
and the (Past and) Future of Juvenile Crime Regulation, 31 LAW & INEQ. 535, 548–50 (2013) (noting rehabilitative-oriented changes in
Washington, Connecticut, and Illinois).
47. In that decade, ten states redefined their codes to deemphasize the rehabilitative goal of the juvenile court, and numerous states moved
toward a modified “just deserts” approach providing generally for dispositions proportionate to the offense and specifically for mandatory
minimum terms or determinate terms for serious offenses. Barry C. Feld, Juvenile Court Meets Principle of Offense: Punishment, Treatment, and
the Difference It Makes, 68 B.U. L. REV. 821, 851 (1988); Barry C. Feld, The Punitive Juvenile Court and the Quality of Procedural Justice:
Disjunctions between Rhetoric and Reality, 36 CRIME & DELINQ. 443, 447–51 (1990).
48. One commentator has argued that such apparently divergent goals are reconciled in the context of youthful offender statutes that typically
provide for a period of incarceration followed by intensive supervision in the community. Julianne P. Sheffer, Note, Serious and Habitual
Offender Statutes: Reconciling Punishment and Rehabilitation within the Juvenile Justice System, 48 VAND. L. REV. 479 (1995).
49. The various views are discussed in § 14.03(b)(3).
50. The primary way that Americans have reconciled their ambivalence about punishing youth has been to deny that an immature young
person could commit an act of serious violence. If such an event occurs, then the individual is no longer a child, so the argument goes, and
transfer to the adult criminal justice system is appropriate. ZIMRING, supra note 45, at 14.
51. Butts & Mitchell, supra note 19, at 180–86; Howell et al., supra note 3, at 21–22.
52. For state-by-state reviews and associated literature, see Richard Redding & Barbara Morozski, Adjudicatory and Dispositional
Decisionmaking in Juvenile Justice, in JUVENILE DELINQUENCY: PREVENTION, ASSESSMENT, AND INTERVENTION 232,
239–243 (Kirk Heilbrun et al. eds., 2005) (delineating four types of transfer laws—legislative [or automatic based on age, record, and offense],
prosecutorial-discretionary, judicial-discretionary, and reverse waiver [returning a juvenile to juvenile court from adult court]—and noting that
most states have two or more types of provisions in place); PATRICK GRIFFIN, TRYING AND SENTENCING JUVENILES AS
ADULTS: AN ANALYSIS OF STATE TRANSFER AND BLENDED SENTENCING LAWS (2003); Kirk Heilbrun et al., A National
Survey of U.S. Statutes on Juvenile Transfer: Implications for Policy and Practice, 15 BEHAV. SCI. & L. 125, 128–43 (1997). The spate of new
transfer statutes in the early to mid-1990s invited a comparable wave of appeals asserting that such laws violate due process and equal protection.
Courts have been uniform, however, in upholding the federal constitutionality of provisions for direct filing in criminal courts by prosecutors
and for mandatory transfer in serious cases. See Friday v. Pitcher, 99 F. App’x 568 (6th Cir. 2004); Gray v. State, 267 P.3d 667 (Ala. Ct. App.

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2011); People v. Patterson, 25 N.E.3d 526 (Ill. 2014); People v. Parrish, 548 N.W.2d 32 (Mich. Ct. App. 1996); State ex rel. A.L., 638 A.2d
814, 818 (N.J. Super. App. Div. 1994); State v. Martin, 530 N.W.2d 420 (Wis. Ct. App. 1995); In re Boot, 925 P.2d 964 (Wash. 1996) (en
banc); State v. Robert McL., 496 S.E.2d 887 (W.V. 1997). But see State v. Mohi, 267 Utah Adv. Rep. 7, 1995 Utah LEXIS 37 (holding that a
provision for direct filing without guidance to prosecutors about the standard to be used was so arbitrary that it violated the Utah Constitution’s
requirement for “uniform operation” of the law).
53. 543 U.S. 551 (2005).
54. See Tatum v. Arizona, 137 S. Ct. 11 (2016) (certiorari granted, vacated, and remanded for reconsideration of life sentences of juveniles in
the light of Miller and Montgomery, infra); Montgomery v. Louisiana, 136 S. Ct. 7188 (2016) (Miller, infra, applies retroactively to juveniles
now serving life sentences without the possibility of parole); Miller v. Alabama, 132 S.Ct. 2455 (2012) (Eighth Amendment bars mandatory
sentence of a juvenile to life imprisonment without the possibility of parole for murder); J.D.B. v. North Carolina, 564 U.S. 261 (2011)
(juvenile’s age is material to determination of “custody” for the purpose of Miranda analysis); Graham v. Florida, 560 U.S. 48 (2010) (Eighth
Amendment bars sentence of a juvenile to life imprisonment without the possibility of parole for a crime not involving homicide).
55. 543 U.S. at 569–70.
56. Id. at 570–71.
57. Id. at 571–72.
58. In a dissent joined by two other Justices, Justice Scalia, id. at 617–18, appropriately pointed out the inconsistency in the conclusions that
the American Psychological Association presented about typical reasoning by adolescents.
59. See, e.g., SCOTT & STEINBERG, supra note 42; REFORMING JUVENILE JUSTICE, supra note 2; Richard J. Bonnie &
Elizabeth S. Scott, The Teenage Brain: Adolescent Brain Research and the Law, 22 CURRENT DIRECTIONS PSYCHOL. SCI. 158 (2013);
Elizabeth Cauffman & Laurence Steinberg, The Cognitive and Affective Influences on Adolescent Decision-Making, 68 TEMP. L. REV. 1763
(1995); Elizabeth Cauffman & Laurence Steinberg, Researching Adolescents’ Judgment and Culpability, in YOUTH ON TRIAL: A
DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 325 (Thomas Grisso & Robert Schwartz eds., 2000) [hereinafter
YOUTH ON TRIAL]; Alexandra O. Cohen et al., Who Is an Adolescent or Adult?: Assessing Cognitive Control in Emotional and
Nonemotional Contexts, 27 PSYCHOL. SCI. 549 (2016); Elizabeth S. Scott, Adolescence and the Regulation of Youth Crime, 79 TEMP. L.
REV. 337 (2006); Elizabeth S. Scott, Childhood in American Law, in A CENTURY OF JUVENILE JUSTICE (Margaret Rosenheim et al.
eds., 2001); Elizabeth S. Scott, Criminal Responsibility in Adolescence: Lessons from Developmental Psychology, in YOUTH ON TRIAL, supra,
at 291; Elizabeth S. Scott, Developmental Competence and Juvenile Justice Reform, 83 N.C. L. REV. 793 (2005); Elizabeth S. Scott, Judgment
and Reasoning in Adolescent Decisionmaking, 37 VILL. L. REV. 160 (1992); Elizabeth S. Scott, Miller v. Alabama and the Regulation of
Juvenile Crime, 31 MINN. J.L. & INEQ. 535 (2012–13); Elizabeth S. Scott et al., Evaluating Adolescent Decision-Making in Legal Contexts, 19
LAW & HUM. BEHAV. 221 (1995); Elizabeth S. Scott & Laurence Steinberg, Social Welfare and Fairness in Juvenile Crime Regulation, 71
LA. L. REV. 35 (2010); Jennifer L. Skeem et al., Justice Policy Reform for High-Risk Youth: Using Science to Achieve Large-Scale Crime
Reduction, 10 ANN. REV. CLINICAL PSYCHOL. 709 (2014); Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in
Adolescence: Psychosocial Factors in Adolescent Decision-Making, 20 LAW & HUM. BEHAV. 249 (1996); Laurence Steinberg & Elizabeth S.
Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM.
PSYCHOLOGIST 1009 (2003).
60. See generally Steinberg & Scott, supra note 59.
61. See, e.g., Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment of Adolescence: Why Adolescents May Be Less Culpable
than Adults, 18 BEHAV. SCI. & L. 741 (2000).
62. See Slobogin, supra note 46, at 112 (noting that the research of Cauffman & Steinberg, supra note 61, indicates that “while fourteen
through sixteen-year-olds are more impulsive, less risk-averse, more prone to peer influence, and less formed characterologically than adults,
their judgments regarding antisocial conduct are not significantly different (in absolute terms) from those of young adults”).
63. See, e.g., Gary B. Melton, Are Adolescents People?: Problems of Liberty, Entitlement, and Responsibility, in THE ADOLESCENT AS
DECISION-MAKER: APPLICATIONS TO DEVELOPMENT AND EDUCATION 281 (Judith Worell & Fred Danner eds., 1989).
64. SLOBOGIN & FONDACARO, supra note 37, at 107–121 (arguing that a separate juvenile justice system is warranted not because of
diminished culpability—which in concept merely justifies adult-type sentences that are discounted—but because of diminished deterrability,
which justifies a prevention-based system akin to a commitment regime, conceptually quite different from the culpability-based model that
applies in adult court).
65. Gary B. Melton, Background for a General Comment on the Right to Participate: Article 12 and Related Provisions of the Convention on
the Rights of the Child 46–48 (footnotes omitted) (report prepared for use by the U.N. Committee on the Rights of the Child, Sept. 2006)
[hereinafter Melton, Background].
66. COLO. REV. STAT. ANN. §§ 19-1-101–19-7-103; COLO. R. JUV. PROC.
67. Id. at § 19-1-102.

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 68. Id. at § 19-2-102.
69. Id. at §§ 19-2-907, 910, 911.
70. See id. at §§ 19-1-103 & 19-1-4; § 16.1-241(B); § 16.1-335-16.1-337
71. Id. at §§ 19-1-103, 19-1-104(4)(a).
72. Id. at § 19-2-517. In Colorado, the direct file age was raised from 14 to 16 in 2010. See generally Richard E. Redding, Juvenile Transfer
Laws: An Effective Deterrent to Delinquency? (2010), available at https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf; Rostyslav Shiller,
Fundamental Unfairness of the Discretionary Direct File Process in Florida: The Need for a Return to Juvenile Court Waiver Hearings, 6
WHITTIER J. CHILD & FAM. ADVOC. 13 (2006).
73. COLO. REV. STAT. ANN. § 19-2-518(3).
74. Another euphemism for arrest that is often used is “taking the child into custody.” See FLA. STAT. § 985.207 (2006).
75. Id. at § 19-2-512.
76. See id. at §§ 19-2-303, 19-2-705.
77. Id.; see also id. at § 19-1-106 (providing that hearings may be conducted in an informal manner) and at § 19-2-107 (listing instances
where the juvenile may demand a jury trial).
78. See id. at §§ 19-2-906, 19-2-903.
79. See, e.g., 2006 Miss. Laws 539.
80. Often in conservative states, observers and participants in juvenile justice reform noted the catalytic influence of judicial examination of
inhumane conditions in juvenile training schools. See, e.g., CENTER FOR THE STUDY OF YOUTH POLICY, ARKANSAS AND
ARIZONA: REFORMING TROUBLED YOUTH CORRECTIONS SYSTEMS (1992); CENTER FOR THE STUDY OF YOUTH
POLICY, MISSOURI AND HAWAII: LEADERS IN YOUTH CORRECTIONS POLICY (1992); BARRY KRISBERG & JAMES F.
AUSTIN, REINVENTING JUVENILE JUSTICE 142–70 (1993).
81. IDAHO CODE ANN. § 20–501 (2012).
82. Exceptions are the volumes on ABUSE AND NEGLECT, NONCRIMINAL MISBEHAVIOR, and SCHOOLS AND
EDUCATION. (The two latter volumes deal with status offenses, including truancy.) In effect, the American Bar Association (ABA) desired
to preserve the rehabilitative ideal in relation to juvenile court proceedings in matters other than juvenile delinquency. On the other hand,
juveniles’ violations of the criminal law were regarded as more fairly adjudicated in adversary proceedings, in which there was no illusion of
commonality of interests between the state and the respondent.
83. See JUVENILE JUSTICE STANDARDS: SUMMARY AND ANALYSIS (1982). For a reanalysis of McKeiver v. Pennsylvania, 403
U.S. 528 (1971) (juvenile respondents have no constitutional right to a jury trial), in the light of the evolving purposes of the juvenile court, see
Martin R. Gardner, Punitive Juvenile Justice and Public Trials by Jury: Sixth Amendment Applications in a Post-McKeiver World, 91 NEB. L.
REV. 1 (2012). Gardner argues that juveniles charged with delinquent offenses should have an option to choose between a jury trial and a bench
trial.
84. For a summary of these provisions, with special emphasis on forensic mental health, see Stephen J. Morse & Charles H. Whitebread II,
Mental Health Implications of the Juvenile Justice Standards, in LEGAL REFORMS AFFECTING CHILD AND YOUTH SERVICES
(Gary B. Melton ed., 1982).
85. The ABA’s project is populated by several individuals who were involved in or have written positively about the original Standards, and
the American Law Institute is currently drafting a Restatement of Children and the Law, with Elizabeth Scott as the primary reporter.
86. The text that came closest to addressing this question was a footnote excerpting a conclusory statement from a position paper prepared
for the Project: “Juveniles may be viewed as incomplete adults, lacking in full moral and experiential development, extended unique jural status
in other contexts, and deserving of the social moratorium extended by this and all other societies of which I am aware.” ABA JOINT
COMMISSION ON JUVENILE JUSTICE STANDARDS, JUVENILE JUSTICE STANDARDS RELATING TO DISPOSITIONS
19 n.5 (1980).
87. Feld, supra note 35, at 1224.
88. Barry C. Feld, Criminalizing the Juvenile Court: A Research Agenda for the 1990s, in PUBLIC POLICY, supra note 3, at 59, 60.
89. For example, Melton has debunked assumptions (1) that juveniles typically are so cognitively and socially incompetent that they cannot
fairly be held accountable for their behavior; (2) that juveniles, relative to adults, are so malleable that they can be assumed to be especially
amenable to treatment; and (3) that formal adversary procedures are not conducive to rehabilitation. Gary B. Melton, Taking Gault Seriously:
Toward a New Juvenile Court, 68 NEB. L. REV. 146, 150–64 (1989).
90. See, e.g., id. at 167–77.
91. See, e.g., SLOBOGIN & FONDACARO, supra note 37; C. Antoinette Clark, The Baby and the Bathwater: Adolescent Offending and
Juvenile Justice Reform, 53 KAN. L. REV. 659, 724–725 (2005).
92. See, e.g., Bree Langemo, Serious Consequences for Serious Juvenile Offenders: Do Juveniles Belong in Adult Court?, 30 OHIO N.U. L.

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REV. 141 (2004). “Experience with juvenile transfer suggests that criminal court jurisdiction—in effect, the model favored by the abolitionists
—is not likely to be fully satisfactory. Criminal courts are less likely than juvenile courts to take some action to hold juveniles accountable, and
adult correctional systems are less likely than juvenile programs to prevent recidivism.” Howell et al., supra note 3, at 22–23.
93. See, e.g., Melton, supra note 89, at 167–72.
94. Barry C. Feld, A Century of Juvenile Justice: A Work in Progress or a Revolution That Failed?, 34 N. KY. L. REV. 189, 255–56 (2007)
(“The primary virtue of juvenile courts is simply that they are not the criminal justice system. Regardless of their ability to help or rehabilitate
juveniles, they do less harm than when states process children in the adult criminal justice system” [footnote omitted]).
95. For an articulate discussion by a leading judge of his view that the various public purposes can be accommodated through judicial
leadership within the existing juvenile court, see Leonard P. Edwards, The Juvenile Court and the Role of the Juvenile Court Judge, 43(2) JUV. &
FAM. CT. J. 1 (1992); Leonard P. Edwards, The Future of the Juvenile Court: Promising New Directions, FUTURE OF CHILDREN, Winter
1996, at 131. Judge Edwards’s view was incorporated in CAL. R. CT. §§ 5.40(e) & 5.40(h) (2007), which provides remarkably expansive
authority and direction for juvenile court judges to assume leadership in the community’s service system for troubled youth.
96. See Slobogin, supra note 46, at 121–32 (discussing the failure of transfer to accomplish general or specific deterrence aims, its
overincapacitation effect, and its failure even on retributive grounds, and outlining a regime with a maximum dispositional age of 25, with a
possible extension of confinement for individuals who are “dangerous beyond their control”).
97. Convention on the Rights of the Child, U.N. Doc. A/Res/44/25 art. 40(1) (1989). The United States is the only member of the United
Nations that has not ratified the Convention. However, the United States is a signatory to the Convention. It is thus bound to work toward
ratification and to avoid actions inconsistent with the Convention. It is also arguable that the Convention is so widely adopted that some or all
of its provisions are applicable in United States domestic law as customary international law.
Eighth Amendment jurisprudence is especially open to “foreign” influences because of its reliance on evolving standards of decency (hence its
consideration of public opinion about the scope of human rights); the United States Supreme Court cited Article 37(a) of the Convention
(barring capital punishment of juveniles as a matter of human rights) in its analysis of the unconstitutionality of the death penalty for crimes
committed by juveniles. Roper v. Simmons, 543 U.S. 551, 576 (2005).
98. For example, responding to research showing that many juvenile respondents are not meaningfully represented by counsel (see supra note
36), Minnesota now provides for appointed counsel, or standby counsel if a child waives the right to counsel, and for consultation with an
attorney prior to acceptance of a waiver in all cases involving felony or gross misdemeanor charges or possible out-of-home placement. See Barry
C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 MINN. L. REV. 965, 1116–17 (1995).
99. In 2011, juvenile courts in the United States handled approximately 1.2 million cases. Sarah Hockenberry & Charles Puzzanchera,
Delinquency Cases in Juvenile Court, 2011 (Dec. 2014), available at https://www.ojjdp.gov/pubs/248409.pdf.
100. The following discussion focuses on the clinician’s role in juvenile delinquency cases and, to a lesser extent, in status offense cases. For
discussions of other clinical issues that may arise in juvenile court, see § 10.10(a) and Chapters 15, 16, and 17.
101. 362 U.S. 402 (1960).
102. See generally THOMAS GRISSO, CLINICAL EVALUATIONS FOR JUVENILES’ COMPETENCE TO PROCEED: A
GUIDE FOR LEGAL PROFESSIONALS (2005) [hereinafter GRISSO, CLINICAL EVALUATIONS]; Thomas Grisso, Forensic
Evaluation in Delinquency Cases, in FORENSIC PSYCHOLOGY 315 (Alan Goldstein ed., 2003); Richard Redding & Linda Frost,
Adjudicative Competence in the Modern Juvenile Court, 9 VA. J. SOC. POL’Y & L. 353, 368–74 (2001).
103. Christopher A. Mallett, Juvenile Competency Standards’ Perfect Storm: Ineffective Punitive Policies; Undetected Incompetent Youth; and
Roper v. Simmons, 44(6) CRIM. L. BULL. 3, 7 (2008). Eighteen other states have case law showing use of competence evaluations in juvenile
cases or reliance on adult standards. Id. at 7. See, e.g., In re W.A.F., 573 A.2d 1264 (D.C. 1990); In re the Welfare of D.D.N., 582 N.W.2d 278
(Minn. Ct. App. 1998); In re D.G., 91 Ohio Misc. 2d 226, 698 N.E.2d 533 (C.P. 1998).
104. See, e.g., In re S.H., 469 S.E.2d 801, 811–12 (Ga. Ct. App. 1996); In re K.G., 808 N.E.2d 631, 635 (Ind. 2004). See generally Redding
& Frost, supra note 102, at 373–74; Elizabeth Scott & Thomas Grisso, Developmental Incompetence, Due Process and Juvenile Justice Policy, 83
N.C. L. REV. 793, 800–05 (2005).
105. S.W.M. v. State, 299 P.3d 673, 682 (Wyo. 2013). For other examples of this approach, see, e.g., State v. Juan L., 969 A.2d 698 (Conn.
2009); In re J.M., 769 A.2d 656 (Vt. 2001).
106. In re Causey, 363 So. 2d 472, 476 (La. 1978).
107. See GRISSO, CLINICAL EVALUATIONS, supra note 102, at 43. For example, the Florida Rules of Juvenile Procedure instruct
forensic examiners, in cases in which they believe the juvenile might be incompetent, to report specifically on “the mental illness, mental
retardation, or mental age causing incompetence.” FLA. R. JUV. P. 8.095(d)(2)(A) (emphasis added). A related statute governing the
disposition of incompetent youth acknowledges that juveniles may be adjudicated incompetent due to mental illness or intellectual disability, or
“because of age or immaturity, or for any reason other than for mental illness or retardation.” FLA. STAT. § 985.19(2). See also ARK. CODE.
ANN. § 9-27-502 (West 2007); GA. CODE. ANN. § 15-11-659 (2014); LA. CHILD. CODE ANN. art. 837 (2014); MD. CODE ANN. §

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3-8A-17.3(a)(3)(i) (West 2005).
108. Randy K. Otto & Randy Borum, Juvenile Forensic Evaluation, in HANDBOOK OF FORENSIC PSYCHOLOGY 873 (William
O’Donahue & Eric R. Levensky eds., 2004); Redding & Frost, supra note 102, at 378.
109. THOMAS GRISSO, EVALUATING JUVENILES’ ADJUDICATIVE COMPETENCE: A GUIDE FOR CLINICAL
PRACTICE (2005).
110. RONALD ROESCH ET AL., FITNESS INTERVIEW TEST—REVISED (2006).
111. Jodi Viljoen et al., Assessing Adolescent Defendants’ Adjudicative Competence, 33 CRIM. JUST. & BEHAV. 467 (2006).
112. Jodi Viljoen & Ronald Roesch, Competence to Waive Interrogation Rights and Adjudicative Competence in Adolescent Defendants:
Cognitive Development, Attorney Contact, and Psychological Symptoms, 29 LAW & HUM. BEHAV. 723 (2005).
113. For a review of the literature, see Annette Christy et al., Juveniles Evaluated Incompetent to Proceed: Characteristics and Quality of
Mental Health Professionals’ Evaluations, 35 PROF. PSYCHOL.: RES. & PRAC. 380 (2004). For favorable reviews of the FIT-R, see
THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 101–08 (2003);
Gregory DeClue, Review of the Fitness Interview Test—Revised, 34 J. PSYCHIATRY & L. 371 (2006).
114. For a summary, see N. Dickon Repucci et al., Challenging Juvenile Transfer: Faulty Assumptions and Misguided Policies, in
CHILDREN AS VICTIMS, WITNESSES AND OFFENDERS 295, 299–304 (Bette L. Bottoms & Cynthia Nadjowski eds., 2009); see
also Dana Royce Baerger et al., Competency to Stand Trial in Preadjudicated and Petitioned Juvenile Defendants, 31 J. AM. ACAD.
PSYCHIATRY & L. 314 (2003); Darla M.R. Burnett et al., Adjudicative Competency in a Juvenile Population, 31 CRIM. JUST. & BEHAV.
438 (2004); Deborah K. Cooper, Juveniles’ Understanding of Trial-Related Information: Are They Competent Defendants?, 15 BEHAV. SCI. &
L. 167 (1997); Theo A.H. Doreleijers et al., Forensic Assessment of Juvenile Delinquents: Prevalence of Psychopathology and Decision-Making at
Court in the Netherlands, 23 J. ADOLESCENCE 263 (2000); Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of
Adolescents’ and Adults’ Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 333 (2003); Annette McGaha et al., Juveniles
Adjudicated Incompetent to Proceed: A Descriptive Study of Florida’s Competence Restoration Program, 29 J. AM. ACAD. PSYCHIATRY & L.
427 (2001); Geoffrey R. McKee, Competency to Stand Trial in Preadjudicatory Juveniles and Adults, 26 J. AM. ACAD. PSYCHIATRY & L.
89 (1998); Geoffrey R. McKee & Steven J. Shea, Competency to Stand Trial in Family Court: Characteristics of Competent and Incompetent
Juveniles, 27 J. AM. ACAD. PSYCHIATRY & L. 65 (1999); Michele Peterson-Badali et al., Young Children’s Legal Knowledge and Reasoning
Ability, 4 CAN. J. CRIMINOLOGY 145 (1997); Janet I. Warren et al., Correlates of Adjudicative Competence among Psychiatrically Impaired
Juveniles, 31 J. AM. ACAD. PSYCHIATRY & L. 299 (2003).
115. Grisso et al., supra note 114.
116. Norman Poythress et al., The Competence-Related Abilities of Adolescent Defendants in Criminal Court, 30 LAW & HUM. BEHAV.
75 (2006).
117. Compare Causey, supra note 106 (holding that juveniles have a constitutional right to assert an insanity defense), and Matter of
Stapelkemper, 562 P.2d 815, 816 (Mont. 1977) (holding that juveniles have a due process right to assert an insanity defense at any “adjudicatory
stage,” but that a transfer hearing is not an adjudicatory stage), with Matter of C.W.M., 407 A.2d 617 (D.C. App. 1979) (holding that juveniles
have no constitutional right to assert an insanity defense so long as they are afforded the same opportunity for psychiatric treatment as adults);
Golden v. State, 21 S.W.3d 801 (Ark. 2000) (holding that juveniles have no due process right to assert an insanity defense); and
Commonwealth v. Chatman, 538 S.E.2d 304 (Va. 2000) (same).
118. See Emily S. Pollock, Those Crazy Kids: Providing the Insanity Defense in Juvenile Courts, 85 MINN. L. REV. 2041 (2000–01).
119. 421 U.S. 519, 529 (1975).
120. This situation may be changing as legislatures more often predicate transfer to criminal court on the nature of the pending charge, and
as questions arise about the applicability of juvenile offenses under “three-strikes” laws that mandate onerous penalties for repeated offenses.
121. See, e.g., JUVENILE JUSTICE STANDARDS RELATING TO TRANSFER BETWEEN COURTS § 2.2(C)(3) (1980).
122. See, e.g., Donna M. Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 CRIME & JUST. 81, 127–28 (2000); Mark
Enzell, Juvenile Diversion: The Ongoing Search for Alternatives, in PUBLIC POLICY, supra note 3, at 45, 51–52.
123. WALTER WADLINGTON ET AL., CHILDREN IN THE LEGAL SYSTEM 550 (1983).
124. It has been our experience that clinical reports are often used for evidence of mitigation, preparatory to striking a bargain (1) to reduce
the charges in exchange for a guilty plea, (2) to drop the charges, or (3) to recommend probation in exchange for a guarantee of participation in
a treatment program. In some jurisdictions, even most insanity defenses are the result of prosecution stipulation. See § 8.02(a)(2).
125. Ivan P. Kruh & Stanley L. Brodsky, Clinical Evaluations for Transfer of Juveniles to Criminal Court: Current Practices and Future
Research, 15 BEHAV. SCI. & L. 151 (1997).
126. Cf. Harden v. Commonwealth, 885 S.W.2d 323 (Ky. Ct. App. 1994) (reversing juvenile court transfer decision for failure to make
required findings concerning statutory criteria); State v. Collins, 694 So.2d 624 (La. Ct. App. 1997) (same); In re J.D.W., 881 P.2d 1324
(Mont. 1994) (reversing transfer decision because juvenile judge focused solely on the seriousness of the alleged offense and did not consider

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“amenability to treatment”); State v. Sonja B., 395 S.E.2d 803 (W.Va. 1990) (reversing transfer decision for failure to consider “personal factors”
such as “physical condition, maturity, [and] emotional attitude”)
127. WADLINGTON ET AL., supra note 123, at 516. See generally Edward P. Mulvey, Judging Amenability to Treatment in Juvenile
Offenders, in CHILDREN, MENTAL HEALTH, AND THE LAW 195 (N. Dickon Reppucci et al. eds., 1984).
128. 560 U.S. 48 (2011).
129. Id. at 74.
130. Id. at 75, 82.
131. 132 S. Ct. 2455 (2012).
132. Martin R. Gardner, Youthful Offenders and the Eighth Amendment Right to Rehabilitation: Limitations on the Punishment of Juveniles,
83 TENN. L. REV. 455, 460 (2016) (arguing that “it is now unconstitutional to punish adolescent offenders with any sentence of
imprisonment without providing for their possible rehabilitation”). In its recent ruling in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that
Miller is retroactive, the Court has created still another issue regarding treatability—requiring an assessment of the corrigibility of a person
(usually an adult) who was sentenced to life without parole for a crime committed while a juvenile. Id. at 736 (“those prisoners who have shown
an inability to reform will continue to serve life sentences”).
133. Whether a respondent is found to be guilty should, of course, turn on whether the state can prove its charges beyond a reasonable doubt
—not whether the defense attorney or the judge thinks that the respondent is in need of, or amenable to, treatment.
134. See supra notes 35–36 and accompanying text.
135. Rule 1.14 of the ABA’s MODEL RULES OF PROFESSIONAL CONDUCT gives ambiguous guidance as to the proper style of
representation of a questionably competent client. See discussion of this issue in the civil commitment context [§ 10.06] and in custody and
abuse proceedings [§ 16.03(f)(2)].
136. See generally Thomas Grisso, What We Know about Youths’ Capacities as Trial Defendants, in YOUTH ON TRIAL, supra note 59
(communication between attorneys and juveniles is poor).
137. See Melton, Background, supra note 63, at 35–55 (detailed discussion of research on children’s participation in the legal process in
diverse cultures). The belief among leaders in the bar itself is that the quality of representation of juveniles is often poor. See, e.g., ABA, A
CALL TO JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN
DELINQUENCY PROCEEDINGS (1995); Thomas Grisso, Juveniles’ Consent in Delinquency Proceedings, in CHILDREN’S
COMPETENCE TO CONSENT 131, 144–45 (Gary B. Melton et al. eds., 1983). See generally Thomas Grisso & Thomas Lovinguth,
Lawyers and Child Clients: A Call for Research, in THE RIGHTS OF CHILDREN: LEGAL AND PSYCHOLOGICAL PERSPECTIVES
215 (James S. Henning ed., 1982).
138. See, e.g., Grisso et al., supra note 114; see also § 14.04(a).
139. Gary B. Melton & Susan P. Limber, What Rights Mean to Children: Children’s Own Views, in IDEOLOGIES OF CHILDREN’S
RIGHTS 167 (Michael Freeman & Phillip Veerman eds., 1992).
140. THOMAS GRISSO, JUVENILES’ WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE 118–20
(1981).
141. Id.
142. Id. at 59–93.
143. Id. at 83–84.
144. See id. at 64 nn.6–7, and cases cited therein.
145. See PATRICIA PURITZ, A CALL FOR JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF
REPRESENTATION IN DELINQUENCY PROCEEDINGS 26–27 (1995) (reporting survey results reflecting a widespread view among
juveniles that their attorneys were not on their side, did not give their cases adequate attention, and had not earned their trust). See also Emily
Buss, The Role of Lawyers in Promoting Juveniles’ Competence as Defendants, in YOUTH ON TRIAL, supra note 59, at 243, 247–48
(discussing some of the developmental barriers to the establishment of successful attorney–client relationships with juveniles).
146. See Resolution of the ABA on Learning Disabilities and the Juvenile Justice System (adopted by the House of Delegates, Aug. 1983).
147. See, e.g., NANCY DUNIVANT, A CAUSAL ANALYSIS OF THE RELATIONSHIP BETWEEN LEARNING
DISABILITIES AND JUVENILE DELINQUENCY (1984); NANCY DUNIVANT, IMPROVING ACADEMIC SKILLS AND
PREVENTING DELINQUENCY OF LEARNING-DISABLED JUVENILE DELINQUENTS: EVALUATION OF THE ACLD
REMEDIAL PROGRAM (1984); Elena Grigorenko et al., Academic Achievement among Juvenile Detainees, 48 J. LEARNING
DISABILITIES 359 (2015); Christopher A. Mallett, Youthful Offending and Delinquency: The Comorbid Impact of Maltreatment, Mental
Health Problems, and Learning Disabilities, 31 CHILD & ADOLESCENT SOC. WORK 369 (2014).
148. We do not mean to imply that adult defendants do not sometimes have similar views. Nonetheless, it has been our experience that
adults much more frequently perceive forensic evaluations as a possible opportunity to “beat the rap.” On the other hand, juveniles more often

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are anxious or resistant about evaluations, presumably because of the developmentally appropriate concern with fashioning an identity. See
ERIK ERIKSON, IDENTITY: YOUTH AND CRISIS (1968). In that connection, it is threatening to perceive one’s identity—already fragile
because of immaturity—as even more tenuous because of mental disorder. Also, for some youths, delinquent values and identification—and
therefore unwillingness to perceive themselves as needing help—may solidify connection with a delinquent peer culture. See § 14.06(b).
149. Depressed adolescents often engage in aggressive behavior. See, e.g., Christine Blain-Arcaro & Tracy Vaillancourt, Longitudinal
Associations between Depression and Aggression in Children and Adolescents, 45 J. ABNORMAL CHILD PSYCHOL. 959 (2017); Natassja
A. Marshall et al., The Association between Relational Aggression and Internalizing Symptoms: A Review and Meta-Analysis, 34 J. SOC. &
CLINICAL PSYCHOL. 135 (2015); Terrance J. Wade & David J. Pevalin, Adolescent Delinquency and Health, 47(4) CAN. J.
CRIMINOLOGY & CRIM. JUST. 619 (2005).
150. For a thoughtful list and categorization of the information to be collected by the clinician, see Robert Kinscherff, Forensic Assessment of
Amenability to Rehabilitation in Juvenile Delinquency, in FORENSIC MENTAL HEALTH ASSESSMENT OF CHILDREN AND
ADOLESCENTS 311 (Steven N. Sparta & Gerald P. Koocher eds., 2006).
151. Mulvey, supra note 127, at 201.
152. THOMAS GRISSO, DOUBLE JEOPARDY: ADOLESCENT OFFENDERS WITH MENTAL DISORDERS 7 (2004). See
also MENTAL HEALTH SCREENING AND ASSESSMENT IN JUVENILE JUSTICE (Thomas Grisso et al. eds., 2005) (describing
instruments for mental health screening in juvenile justice settings, and discussing issues in use of such measures).
153. See Kinscherff, supra note 150, at 314–17.
154. See, e.g., State v. Simpson, 836 S.W.2d 75, 82 (Mo. Ct. App. 1992) (waiving juvenile court jurisdiction for a 14-year-old because the
State’s experts testified that the state lacked adequate facilities to deal with a 14-year-old homicide offender); In re R.M., 648 S.W.2d 406, 408
(Tex. App.-San Antonio 1983, no writ) (granting transfer because no substance abuse treatment program was available); Commonwealth v.
Cessna, 537 A.2d 834, 839 (Pa. 1988) (determining that the juvenile did not show that there was a juvenile facility that would accept him). Cf.
Haziel v. United States, 404 F.2d 1275, 1280 (D.C. Cir. 1968) (violation of equal protection to transfer disadvantaged youth for lack of a
program that was available privately to wealthier juveniles).
155. ROBERT D. HOGE & DONALD ANDREWS, ASSESSING THE YOUTHFUL OFFENDER: ISSUES AND
TECHNIQUES (1996); JUVENILE CRIME, JUVENILE JUSTICE (Joan McCord et al. eds., 2001).
156. RANDY BORUM & SCOTT VERHAAGEN, ASSESSING AND MANAGING VIOLENCE RISK IN JUVENILES (2006);
Randy Borum, Assessing Violence Risk among Youth, 56 J. CLINICAL PSYCHOL. 1263 (2000).
157. HOGE & ANDREWS, supra note 155; Borum, supra note 156.
158. Randy Borum et al., Improving Clinical Judgment and Decision-Making in Forensic Evaluation, 21 J. PSYCHIATRY & L. 35 (1993);
Paul D. Werner et al., Reliability, Accuracy and Decision-Making Strategy in Clinical Predictions of Imminent Dangerousness, 51 J.
CONSULTING & CLINICAL PSYCHOL. 815 (1983); Paul D. Werner et al., Social Workers’ Decision-Making about the Violent Client,
25(3) SOC. WORK RES. & ABSTRACTS 17 (1989).
159. For a review, see Lorraine Johnstone, Assessing Violence Risk in Children: Implications for Dangerous Offender Provisions, in
DANGEROUS PEOPLE: POLICY, PREDICTION, AND PRACTICE (Bernadette McSherry & Patrick Keyser eds., 2011). Three such
instruments are the Early Assessment Risk List (EARL), the Structured Assessment of Violence Risk in Youth (SAVRY), and the Youth Level
of Service/Case Management Inventory (YLS/CMI). See L. AUGIMERI ET AL., EARLY ASSESSMENT RISK LIST FOR BOYS:
EARL-20B, VERSION 2 (2001); RANDY BORUM ET AL., MANUAL FOR THE STRUCTURED ASSESSMENT OF VIOLENCE
RISK IN YOUTH (SAVRY) (2006); ROBERT D. HOGE & DONALD ANDREWS, THE YOUTH LEVEL OF SERVICE/CASE
MANAGEMENT INVENTORY MANUAL (2002). The first two are structured professional judgment (SPJ) risk assessment instruments
(see § 9.09 for a discussion of SPJ), and the EARL has a separate version for girls. See KATHRYN S. LEVENE ET AL., EARLY
ASSESSMENT RISK LIST FOR GIRLS, VERSION 1—CONSULTATION (2001). The third instrument consists of a checklist of 42
items similar in some ways to the SPJ model, but explicitly links scores to risk classifications.
The Hare Psychopathy Checklist—Youth Version (PCL-YV) may also be a useful risk assessment device (see infra note 253 for further
discussion). A meta-analysis of recidivism studies using the PCL-YV found that this measure is significantly associated with both general and
violent recidivism, with effect sizes comparable to those reported for the YLS/CMI. John F. Edens et al., Youth Psychopathy and Criminal
Recidivism: A Meta-Analysis of the Psychopathy Checklist Measures, 31 LAW & HUM. BEHAV. 53 (2007). Finally, an instrument that
attempts to combine risk assessment with an assessment of treatability and maturity is the Risk, Sophistication–Maturity, and Treatment
Amenability Inventory (RST-I). See Alicia Leistico & Randy Salekin, Testing the Reliability and Validity of the Risk, Sophistication–Maturity,
and Treatment Amenability Inventory (RST-I): An Assessment Tool for Juvenile Offenders, 2 INT’L J. FORENSIC MENTAL HEALTH 101
(2003).
160. Results from an international study of more than 10,000 youth from five different countries indicated that almost one-quarter of the
sample engaged in serious delinquent behavior, while over three-quarters reported involvement in some type of delinquency. DELINQUENT

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BEHAVIOR AMONG YOUNG PEOPLE IN THE WESTERN WORLD (Josine Junger-Tas et al. eds., 1994). Results from large self-
report studies indicate significant rates of delinquent behavior among younger children as well. For example, Snyder and colleagues reported
that between 25 and 40% of boys between the ages of 7 and 10 had engaged in offenses such as petty theft, simple assault, and arson.
HOWARD SNYDER ET AL., PREVALENCE AND DEVELOPMENT OF CHILD DELINQUENCY (2003). These recidivism rates
are clearly higher than those for young adults.
161. Terrie E. Moffitt, Adolescence-Limited and Life-Course-Persistent Antisocial Behavior: A Developmental Taxonomy, 100 PSYCHOL.
REV. 674 (1993); Delbert S. Elliott et al., Self-Reported Violent Offending: A Descriptive Analysis of Juvenile Offenders and Their Offending
Careers, 1 J. INTERPERS. VIOLENCE 472 (1986) (about 80% of people who exhibit violence in adolescence desist by age 21).
162. Johnstone, supra note 159, at 141 (“Most young offenders do not become persistent adult offenders”).
163. Randy Borum, Assessing Violence Risk in Youth, in PRINCIPLES AND PRACTICE OF CHILD AND ADOLESCENT
FORENSIC MENTAL HEALTH 192 (Eliza P. Benedek et al. eds., 2006).
164. Dante Cicchetti & Fred A. Rogosch, A Developmental Psychopathology Perspective on Adolescence, 70 J. CONSULTING &
CLINICAL PSYCHOL. 6 (2002).
165. COLO. REV. STAT. ANN. § 19-2-907 (West 2015).
166. There is an argument to be made, however, that conditions of probation must be “fair and rationally related to a sensible plan for
rehabilitation.” CHARLES H. WHITEBREAD & MONRAD PAULSEN, JUVENILE LAW AND PROCEDURE 176 (1974).
167. E.g., VA. CODE ANN. § 16.1-278 (2016).
168. For illustrative cases, see Welfare of J.E.C. v. State, 225 N.W.2d 245 (Minn. 1975) (“The absence of rehabilitative facilities to treat
appellant may not mean he is not amenable to treatment as a juvenile if such facilities were available”); Welfare of C. v. State, 225 N.W.2d 245
(Minn. 1975) (remanding for a determination as to whether, if no treatment program for the juvenile was available, it was feasible to put
together such a program and, if so, why the Department had failed to do so). However, most courts have refused to recognize such a right. See
State v. B.B., 17 A.3d 30 (Conn. 2011); State v. Cain, 381 So.2d 1361 (Fla. 1980); State v. Hitt, 41 P.3d 732 (Kan. 2002); In re Samuel M.,
441 A.2d 1072 (Md. 1982); State v. Grigsby, 818 N.W.2d 511 (Minn. 2012); State v. Angilau, 235 P.3d 745 (Utah 2011); State v. Martin, 530
N.W.2d 420 (Wis. 1995). See also supra note 154.
169. The right to treatment in juvenile justice has been based on a theory that if liberty is deprived for the purpose of treatment (as the
juvenile justice system has purported to do), due process then requires that treatment be provided. See, e.g., Nelson v. Heyne, 491 F.2d 352 (7th
Cir. 1974); Bowers ex rel. Alexander S. v. Boyd, 876 F.Supp. 773 (D.S.C. 1995); Morgan v. Sproat, 432 F. Supp. 1130 (S.D. Miss. 1977); Pena
v. N.Y. State Div. for Youth, 419 F. Supp. 203 (S.D.N.Y. 1976); Inmates of Boys Training School v. Affleck, 346 F. Supp. 1354 (D.R.I. 1973);
Morales v. Turman, 364 F. Supp. 166 (E.D. Tex. 1973); State ex rel. S.D., 832 So.2d 415 (La. Ct. App. 2002); In re Johnny S., 896 N.Y.S.2d
842 (N.Y. Fam. Ct. 2010). This theory is undermined, however, by purpose statements in many modern juvenile codes that deemphasize or
eliminate rehabilitation as a primary goal. See HOWARD SNYDER & MELISSA SICKMUND, JUVENILE OFFENDERS AND
VICTIMS: A NATIONAL REPORT 71 (Aug. 1995) (listing the express purposes of state juvenile codes).
170. NRC. THE REHABILITATION OF CRIMINAL OFFENDERS: PROBLEMS AND PROSPECTS (Lee Sechrest et al. eds.,
1979). The panel saw no basis for the belief that juveniles would be especially amenable to treatment: “It could [even] be argued that given the
same circumstances it might be more difficult to rehabilitate juveniles than adults because their very youth is indicative that they have no
prolonged periods of satisfactory behavior patterns to which they might be restored by proper treatment. In fact, however, very little is known
about differential treatment or potential for rehabilitation of juveniles and adults. Certainly when the treatment methods that have been
employed are examined, there do not appear to have been any startling differences between what has been tried with juveniles and adults. The
one exception is temporary foster home placement of juveniles, but that tactic has never been subjected to a controlled test of its efficacy.” Id. at
50–51.
171. Melton, supra note 89, at 161–62. ZIMRING, supra note 45, later reached the same conclusion: “Growing up is by far the most potent
known cure for crime.” Id. at 166.
172. Mark W. Lipsey, Juvenile Delinquency Treatment: A Meta-Analytic Inquiry into the Variability of Effects, in META-ANALYSIS FOR
EXPLANATION: A CASEBOOK 83 (Thomas D. Cook et al. eds., 1992). See also Mark W. Lipsey & David B. Wilson, The Efficacy of
Psychological, Educational, and Behavioral Treatment: Confirmation from Meta-Analysis, 48 AM. PSYCHOLOGIST 1181 (1993).
173. See, e.g., Scott Henggeler & Sonja Schoenwald, Evidence-Based Interventions for Juvenile Offenders and Juvenile Justice Policies That
Support Them, 25(1) SOC. POL’Y REP. 1 (2011); Mark W. Lipsey, The Primary Factors That Characterize Effective Interventions with
Juvenile Offenders: A Meta-Analytic Review, 4 VICTIMS & OFFENDERS 124 (2009); David Tate et al., Violent Juvenile Delinquents:
Treatment Effectiveness and Implications for Future Actions, 50 AM. PSYCHOLOGIST 771 (1995); John T. Whitehead & Steven P. Lab, A
Meta-Analysis of Juvenile Correctional Treatment, 26 J. RES. CRIME & DELINQ. 276 (1989); Susan R. Woolfenden et al., Family and
Parenting Interventions for Conduct Disorder and Delinquency: A Meta-analysis of Randomised Controlled Trials, 86 ARCHIVES DISEASE
CHILDHOOD 251 (2002). Much—maybe even most—of the continuing positive change in knowledge about treatment of juvenile offenders

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is a reflection of the growing number of clinical trials and related process studies of multisystemic treatment (MST). See infra notes 186–191
and accompanying text. Knowledge about effective treatment in juvenile corrections has developed in tandem with research on child and
adolescent treatment in general. See, e.g., EVIDENCE-BASED PSYCHOTHERAPIES FOR CHILDREN AND ADOLESCENTS (Alan
E. Kazdin et al. eds., 2003); JOHN R. WEISZ & BAHR WEISZ, EFFECTS OF PSYCHOTHERAPY WITH CHILDREN AND
ADOLESCENTS (2003); John R. Weisz et al., Evidence-Based Youth Psychotherapies versus Usual Clinical Care: A Meta-Analysis of Direct
Comparisons, 61 AM. PSYCHOLOGIST 671 (2006).
A particularly noteworthy development in the evolution of evidence-based services for prevention of juvenile delinquency has been the
program-by-program publication of BLUEPRINTS FOR HEALTHY YOUTH DEVELOPMENT by the University of Colorado Center
for the Study and Prevention of Violence, established under the leadership of Delbert S. Elliott. More than 1,400 programs have been reviewed
by the Blueprints project since 1996 (through 2016), but fewer than 5% have been identified as “model” or “promising.” The Blueprints database
can be accessed at http://www.blueprintsprograms.com. MST is one of two programs that has been identified as “model-plus”—validated not
only through randomized clinical trials by the developer but also by independent evaluators, with program administration outside the direct
supervision of the developer.
174. Mark W. Lipsey, What Do We Learn from 400 Research Studies on the Effectiveness of Treatment with Juvenile Delinquents? in WHAT
WORKS?: REDUCING REOFFENDING 63 (James McGuire ed., 1995).
175. Mark Lipsey & D. Wilson, Effective Intervention for Serious Juvenile Offenders: A Synthesis of Research, in SERIOUS AND
VIOLENT JUVENILE OFFENDERS: RISK FACTORS AND SUCCESSFUL INTERVENTIONS 313 (Rolf Loeber & David P.
Farrington eds., 1998).
176. Cited in SNYDER & SICKMUND, supra note 169, at 160.
177. See, e.g., George J. DuPaul & Tanya L. Eckert, The Effects of Social Skills Curricula: Now You See Them, Now You Don’t, 9 SCH.
PSYCHOL. Q. 113 (1994). Cf. Stephen M. Cox et al., A Meta-Analytic Assessment of Delinquency-Related Outcomes of Alternative Education
Programs, 19 CRIME & DELINQ. 219 (1995) (showing no effect of such programs on recidivism). Otherwise well-designed and well-funded
behavioral programs often have failed to reduce recidivism (even though in-program gains were impressive) when they did not include
significant efforts to change the family and community. See, e.g., Susan B. Stern, Evidence-Based Practice with Anti-Social and Delinquent
Youth: The Key Role of Family and Multisystemic Intervention, in USING EVIDENCE IN SOCIAL WORK PRACTICE: BEHAVIORAL
PERSPECTIVES 104 (Harold E. Briggs & Tina L. Rzepnicki eds., 2004); Donna K. Ulrici, The Effects of Behavioral and Family Interventions
on Juvenile Recidivism, 10(1) FAM. THERAPY 25 (1983).
178. In that connection, the fascination of many policymakers with boot camps is especially troublesome. We are aware of no research
suggesting that boot camps and other shock incarceration approaches are any more effective than traditional training schools in reducing
recidivism. In fact, there is evidence that boot camps may actually cause an increase in juvenile offending. See, e.g., David P. Farrington &
Brandon C. Welsh, Randomized Experiments in Criminology: What Have We Learned in the Past Two Decades?, 1 J. EXPERIMENTAL
PSYCHOL. 9, 29 (2005). Criminal justice authorities worry that such approaches may increase hypermasculine, “tough-guy” responses that are
common in delinquent peer groups, and that they also may stimulate increased aggression by staff members. See, e.g., Merry Morash & Lila
Rucker, A Critical Look at the Idea of Boot Camp as a Correctional Reform, 36 CRIME & DELINQ. 204 (1990).
179. Craig Dowden & Donald Andrews, What Works in Young Offender Treatment: A Meta-Analysis, 11(2) FORUM ON
CORRECTIONS RES. 21 (1999).
180. U.S. DEP’T OF HEALTH AND HUMAN SERVICES, YOUTH VIOLENCE: A REPORT OF THE SURGEON GENERAL
(2001), available at https://www.ncbi.nlm.nih.gov/books/NBK44294 [hereinafter YOUTH VIOLENCE].
181. Thomas J. Dishion et al., Peer Ecology of Male Adolescent Drug Use, 7 DEV. & PSYCHOPATHOLOGY 803 (1995); Thomas J.
Dishion et al., Friendships and Violent Behavior during Adolescence, 6 SOC. DEV. 207 (1997); Thomas J. Dishion et al., When Interventions
Harm: Peer Groups and Problem Behavior, 54 AM. PSYCHOLOGIST 755 (1999); Delbert S. Elliott & S. Menard, Delinquent Friends and
Delinquent Behavior: Temporal and Developmental Patterns, in CURRENT THEORIES OF CRIME AND DEVIANCE 28 (J. David
Hawkins ed., 1996); Francois Poulin et al., Three Year Iatrogenic Effects Associated with Aggregating High-Risk Adolescents in Cognitive-
Behavioral Preventive Interventions, 5 APPLIED DEV. SCI. 214 (2001).
182. Not only do training schools serve as crime schools in which residents share stories about their delinquent exploits, but residents are apt
to observe “success” within the setting on the basis of power (in effect, bullying). See generally DAN OLWEUS, BULLYING AT SCHOOL:
WHAT W. KNOW AND WHAT W. CAN DO (1993).
183. REFORMING JUVENILE JUSTICE, supra note 2, at 120. The panel noted three “crucial environmental conditions” that programs
should seek to create or sustain: “authoritative parents or adult parent figures, prosocial peer affiliates (and limited access to antisocial peers), and
participation in activities that promote autonomy and critical thinking.” Id. (citation omitted).
184. Id. at 120–21.
185. Tate et al., supra note 173, at 777.

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 186. See, e.g., Jane Timmons-Mitchell et al., An Independent Effectiveness Trial of Multisystemic Therapy with Juvenile Justice Youth, 35 J.
CLINICAL CHILD & ADOLESCENT PSYCHOL. 227 (2006); Scott W. Henggeler et al., Four-Year Follow-Up of Multisystemic Therapy
with Substance-Abusing and Substance-Dependent Juvenile Offenders, 41 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 868
(2002); Charles Borduin et al., Multisystemic Treatment of Serious Juvenile Offenders: Long-Term Prevention of Criminality and Violence, 63 J.
CONSULTING & CLINICAL PSYCHOL. 569 (1995); Scott W. Henggeler & Charles M. Borduin, Multisystemic Treatment of Serious
Juvenile Offenders and Their Families, in HOME-BASED SERVICES FOR TROUBLED CHILDREN 113 (Ira M. Schwartz & Philip
AuClaire eds., 1995); Scott W. Henggeler et al., Family Preservation Using Multisystemic Therapy: An Effective Alternative to Incarcerating
Serious Juvenile Offenders, 60 J. CONSULTING & CLINICAL PSYCHOL. 953 (1992) [hereinafter Alternative]; Scott W. Henggeler et al.,
Family Preservation Using Multisystemic Treatment: Long-Term Follow-Up to a Clinical Trial with Serious Juvenile Offenders, 2 J. CHILD &
FAM. STUDIES 283 (1993) [hereinafter Follow-Up]; Scott W. Henggeler et al., Multisystemic Treatment of Juvenile Offenders: Effects on
Adolescent Behavior and Family Interaction, 22 DEV. PSYCHOL. 132 (1986); Melisa D. Rowland et al., A Randomized Trial of Multisystemic
Therapy with Hawaii’s Felix Class Youths, 13(1) J. EMOTIONAL & BEHAV. DISORDERS 13 (2005); David G. Scherer et al.,
Multisystemic Family Preservation Therapy with Rural and Minority Families of Serious Adolescent Offenders: Preliminary Findings from a
Controlled Clinical Trial, 2 J. EMOTIONAL & BEHAV. DISORDERS 198 (1994). For a complete listing of the extensive published
research on MST, see the relevant fact sheet and evaluation abstract at http://www.blueprintsprograms.com.
187. These principles are elaborated in SCOTT W. HENGGELER ET AL., MULTISYSTEMIC THERAPY FOR ANTISOCIAL
BEHAVIOR IN CHILDREN AND ADOLESCENTS (2009). For earlier explications of MST principles and strategies, see SCOTT W.
HENGGELER & CHARLES M. BORDUIN, FAMILY THERAPY AND BEYOND: A MULTISYSTEMIC APPROACH TO
TREATING THE BEHAVIOR PROBLEMS OF CHILDREN AND ADOLESCENTS (1990); SCOTT W. HENGGELER ET AL.,
TREATMENT MANUAL FOR FAMILY PRESERVATION USING MULTISYSTEMIC THERAPY (1994); SCOTT W.
HENGGELER ET AL., MULTISYSTEMIC TREATMENT OF ANTISOCIAL BEHAVIOR IN CHILDREN AND
ADOLESCENTS (1998).
188. Alternative, supra note 186; Follow-Up, supra note 186.
189. Borduin et al., supra note 186.
190. Nicola M. Curtis et al., Multisystemic Treatment: A Meta-analysis of Outcome Studies, 18 J. FAM. PSYCHOL. 411 (2004).
191. Id.
192. See, e.g., Joseph L. Massimo & Milton F. Shore, The Effectiveness of a Vocationally Oriented Psychotherapy, 33 AM. J.
ORTHOPSYCHIATRY 634 (1963) [hereinafter Effectiveness]; Milton F. Shore & Joseph Massimo, Comprehensive Vocationally Oriented
Psychotherapy for Adolescent Delinquent Boys: A Follow-Up Study, 36 AM. J. ORTHOPSYCHIATRY 609 (1966); Milton F. Shore & Joseph
L. Massimo, Five Years Later: A Follow-up Study of Comprehensive Vocationally Oriented Psychotherapy, 39 AM. J. ORTHOPSYCHIATRY
769 (1969); Milton F. Shore & Joseph L. Massimo, After Ten Years: A Follow-Up Study of Comprehensive Vocationally Oriented Psychotherapy,
43 AM. J. ORTHOPSYCHIATRY 128 (1973); Milton F. Shore & Joseph L. Massimo, Fifteen Years after Treatment: A Follow-Up Study of
Comprehensive Vocationally Oriented Psychotherapy, 49 AM. J. ORTHOPSYCHIATRY 240 (1979).
In the program described in these articles, therapists were on call 24 hours a day. The breadth of their work was illustrated by the following
description: “In essence, the therapist entered all areas of the adolescent’s life. Job finding, court appearances, pleasure trips, driving lessons
when appropriate, locating and obtaining a car, arranging for a dentist appointment, going for glasses, shopping for clothes with a first pay
check, opening a bank account and other activities require this maximum commitment.” Effectiveness, at 636.
193. See generally Williams S. Davidson II & Robin Redner, The Prevention of Juvenile Delinquency: Diversion from the Juvenile Justice
System, in 14 OUNCES OF PREVENTION: A CASEBOOK FOR PRACTITIONERS 123 (Richard H. Price et al. eds., 1988).
194. The prevention model and the early research associated with it are described in OLWEUS, supra note 182. For extensive materials for
use in implementation of the Olweus Bullying Prevention Program, as adapted to fit American schools and communities, see
http://www.violencepreventionworks.org.
195. See SLOBOGIN & FONDACARO, supra note 37, at 31–35 & app. (describing functional family therapy, multidimensional
treatment foster care, and Fast Track).
196. More detailed description of the research is found in SLOBOGIN & FONDACARO, supra note 37, at 20–28.
197. Deborah Gorman-Smith et al., A Developmental-Ecological Model of the Relation of Family Functioning to Patterns of Delinquency, 16 J.
QUANTITATIVE CRIMINOLOGY 169, 170 (2000) (“Family functioning has consistently been among the strongest predictors of risk for
delinquent and criminal behavior”).
198. The problem of juveniles’ violence against other family members is most often a reflection of violence as a pattern of interaction in the
family. See, e.g., Timothy Brezina, Teenage Violence toward Parents as an Adaptation to Family Strain: Evidence from a National Survey of Male
Adolescents, 30(4) YOUTH & SOC’Y 416 (1999); Jessica L. Hart & Jeffrey L. Helms, Factors of Parricide: Allowance of the Use of Battered
Child Syndrome as a Defense, 8(6) AGGRESSION & VIOLENT BEHAV. 671 (2003). See also Abigail Fagan, The Relationship between
Adolescent Physical Abuse and Criminal Offending: Support for an Enduring and Generalized Cycle of Violence, 20(5) J. FAM. VIOLENCE 279

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(2005) (describing general correlations between adolescent physical abuse and later perpetration of violent and nonviolent crimes).
199. Especially in status offense cases, parents are often complainants because of their children’s uncontrollability, promiscuity, or running
away. See, e.g., Randy Frances Kandel & Anne Griffiths, Reconfiguring Personhood: From Ungovernability to Parent–Adolescent Autonomy
Conflict Actions, 53 SYRACUSE L. REV. 995 (2003).
200. In an increasing number of jurisdictions, this authority extends to holding the parents’ accountable for their children’s behavior. See
generally Linda A. Chapin, Out of Control?: The Uses and Abuses of Parental Liability Laws to Control Juvenile Delinquency in the United States,
37 SANTA CLARA L. REV. 621 (1997); James Herbie Difonzo, Parental Responsibility for Juvenile Crime, 80 OR. L. REV. 1 (2001);
Tammy Thurman, Parental Responsibility Laws: Are They the Answer to Juvenile Delinquency?, 5 J.L. & FAM. STUDIES 99 (2003).
201. See, e.g., Fagan, supra note 198; Valerie Johnson & Robert J. Pandina, Effects of the Family Environment on Adolescent Substance Use,
Delinquency, and Coping Styles, 17 AM. J. DRUG & ALCOHOL ABUSE 71 (1991).
202. Terence P. Thornberry, Violent Families and Youth Violence (Dec. 1994) (Fact Sheet No. 21, Office of Juvenile Justice and
Delinquency Prevention [OJJDP], U.S. Dep’t of Justice). The project as a whole is summarized in several publications: DAVID HUIZINGA
ET AL., URBAN DELINQUENCY AND SUBSTANCE ABUSE: INITIAL FINDINGS (Mar. 1994) (monograph published by OJJDP);
Terence P. Thornberry et al., The Prevention of Serious Delinquency and Violence: Implications from the Program of Research on the Causes and
Correlates of Delinquency, in SOURCEBOOK, supra note 3, at 213; Tribute to Marvin E. Wolfgang: Symposium on the Causes and Correlates of
Juvenile Delinquency, 82 J. CRIM. L. & CRIMINOLOGY 1 (1991).
203. See also Anna Stewart et al., Transitions and Turning Points: Examining the Links between Child Maltreatment and Juvenile Offending,
32 CHILD ABUSE & NEGLECT 51 (2008) (finding that the greatest risk of criminal careers was associated with abuse that occurs in
adolescence).
204. In such a circumstance, the parents themselves often have a history of criminality, especially aggressiveness, and thus may model violent
and antisocial behavior and be unable or unwilling to establish clear positive norms. See Terence P. Thornberry et al., Linked Lives: The
Intergenerational Transmission of Anti-Social Behavior, 31(2) J. ABNORMAL CHILD PSYCHOL. 171 (2003).
205. See, e.g., Fagan, supra note 198; Thornberry et al., supra note 204. See also Patrick H. Tolan et al., Linking Family Violence to
Delinquency across Generations, 5 CHILDREN’S SERV: SOC. POL. RES. & PRAC. 273 (2002).
206. See, e.g., Pamela Orpinas et al., Parental Influences on Students’ Aggressive Behaviors and Weapon Carrying, 26(6) HEALTH EDUC.
& BEHAV. 774 (1999).
207. See, e.g., Stephanie M. Green et al., Child Psychopathology and Deviant Family Hierarchies, 1 J. CHILD & FAM. STUDIES 341
(1992); Barton J. Mann et al., An Investigation of Systemic Conceptualizations of Parent–Child Coalitions and Symptom Change, 58 J.
CONSULTING & CLINICAL PSYCHOL. 336 (1990).
208. See Orpinas et al., supra note 206.
209. SCOTT W. HENGGELER, DELINQUENCY IN ADOLESCENCE 47–48 (1989).
210. David P. Farrington, Childhood Origins of Antisocial Behavior, 12 CLINICAL PSYCHOL. & PSYCHOTHERAPY 177, 181 (2005);
HUIZINGA ET AL., supra note 202, at 14.
211. Mark Warr, Parents, Peers, and Delinquency, 72 SOC. FORCES 247 (1993).
212. Id.
213. Id. at 20; Farrington, supra note 210, at 180; Robert D. Laird et al., Parents’ Monitoring—Relevant Knowledge and Adolescents’
Delinquent Behavior: Evidence of Correlated Developmental Changes and Reciprocal Influences, 74 CHILD DEV. 752, 765 (2003).
214. HUIZINGA ET AL., supra note 202, at 14.
215. Dana L. Haynie, Friendship Networks and Delinquency: The Relative Nature of Peer Delinquency, 18 J. QUANTITATIVE
CRIMINOLOGY 99 (2002); HENGGELER, supra note 209, at 50; HUIZINGA ET AL., supra note 202, at 16.
216. The Causes and Correlates study (HUIZINGA ET AL., supra note 202) showed that involvement in the juvenile justice system is very
common in some neighborhoods. For example, about one-third of 15-year-old males in high-crime neighborhoods in Denver and Rochester
reported having been arrested at least once. Id. at 9–10. In the Denver sample (analogous Rochester data are unavailable), the proportion rose to
41% by age 17. Moreover, adolescent-onset delinquency often “is part of the conforming process that normally occurs within adolescent
friendship groups”—so much so that delinquents often are even more attached to their friends than are other adolescents. HENGGELER,
supra note 209, at 51.
217. YOUTH VIOLENCE, supra note 180.
218. Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference and Risky Decision Making in Adolescence and
Adulthood: An Experimental Study, 41(4) DEV. PSYCHOL. 625, 632 (2005); Albert J. Reiss, Jr., & David P. Farrington, Advancing
Knowledge about Co-Offending: Results from a Prospective Longitudinal Survey of London Males, 82 J. CRIM. L. & CRIMINOLOGY 360, 362
(1991).
219. The NRC panel noted that this heterogeneity in the nature and cause of delinquency is one of the key ways in which juvenile offending

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is differentiated from adult criminal behavior. REFORMING JUVENILE JUSTICE, supra note 2, at 23–26 &120.
220. Except where otherwise indicated, the description herein of characteristics of gangs is based on James C. Howell, Recent Gang Research:
Program and Policy Implications, 40 CRIME & DELINQ. 495 (1994).
221. In the Rochester sample in the Causes and Correlates study (HUIZINGA ET AL., supra note 202, at 18), 7% of ninth and tenth
graders owned illegal guns, and 3% owned legal guns. Illegal gun ownership was highly related to delinquency, and illegal gun owners often
were gang members whose friends also owned illegal guns. On the other hand, youth who owned guns legally typically had fathers who used
guns for sport and hunting. See generally Clifford R. O’Donnell, Firearm Deaths among Children and Youth, 50 AM. PSYCHOLOGIST 771
(1995).
222. John M. Hagedorn, Neighborhoods, Markets, and Gang Drug Organization, 31 J. RES. IN CRIME & DELINQ. 264, 290 (1994).
223. HUIZINGA ET AL., supra note 202, at 16.
224. See Robert J. Sampson et al., Assessing “Neighborhood Effects”: Social Processes and New Directions in Research, 28 ANN. REV.
SOCIOLOGY 443, 457 (2002). Increased risk for delinquency among youth is present in impoverished neighborhoods even when family
variables and race are controlled for. HUIZINGA ET AL., supra note 202, at 15–16; Donald R. Lynam et al., The Interaction between
Impulsivity and Neighborhood Context on Offending: The Effects of Impulsivity Are Stronger in Poorer Neighborhoods, 109(4) J. ABNORMAL
PSYCHOL. 563, 570 (2000).
225. See generally U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT, A NEW NATIONAL STRATEGY FOR THE
PROTECTION OF CHILDREN (1993).
226. NRC. LOSING GENERATIONS: ADOLESCENTS IN HIGH-RISK SETTINGS 14 (1993).
227. See William S. Davidson II & John A. Saul, Youth Advocacy in the Juvenile Court: A Clash of Paradigms, in LEGAL REFORMS
AFFECTING CHILD AND YOUTH SERVICES 29 (Gary B. Melton ed., 1982).
228. See id.; Beth E. Molnar et al., Effects of Neighborhood Resources on Aggressive and Delinquent Behaviors among Urban Youths, 98 AM.
J. PUB. HEALTH 1086 (2008).
229. See, e.g., Erin M. Ingoldsby & Daniel S. Shaw, Neighborhood Contextual Factors and Early-Starting Antisocial Pathways, 5 CLINICAL
CHILD & FAM. PSYCHOL. REV. 21, 50 (2002).
230. See Gary B. Melton, Children, Families, and the Courts in the Twenty-First Century, 66 S. CAL. L. REV. 1993, 2040–47 (1993).
231. See, e.g., Daniel W. Edwards et al., National Health Insurance, Psychotherapy, and the Poor, 34 AM. PSYCHOLOGIST 411 (1979).
232. See supra note 154.
233. See, e.g., Gary D. Gottfredson et al., School Climate Predictors of School Disorder: Results from a National Study of Delinquency
Prevention in Schools, 42 J. RES. CRIME & DELINQ. 412 (2005); Allison Ann Payne, A Multilevel Analysis of the Relationships among
Communal School Organization, Student Bonding, and Delinquency, 45 J. RES. CRIME & DELINQ. 429 (2008).
234. See, e.g., Tear Archwamety & Antonis Katsiyannis, Academic Remediation, Parole Violations, and Recidivism Rates among Delinquent
Youths, 21(3) REMEDIAL & SPECIAL EDUC. 161 (2000).
235. HUIZINGA ET AL., supra note 202, at 15.
236. Id.
237. See, e.g., Edward Morvitz & Robert W. Motta, Predictors of Self-Esteem: The Roles of Parent–Child Perceptions, Achievement, and Class
Placement, 25 J. LEARNING DISABILITIES 72, 73 (2001).
238. See Elizabeth M. Vera et al., Conflict Resolution Styles, Self-Efficacy, Self-Control, and Future Orientation of Urban Adolescents, 8
PROF. SCH. COUNSELING 73 (2004).
239. For discussions of the relationship between cognitive and affective development, see GARY B. MELTON, CHILD ADVOCACY:
PSYCHOLOGICAL ISSUES AND INTERVENTIONS 73–81 (1983); Robert Brooks, Psychoeducational Assessment: A Broader
Perspective, 10 PROF. PSYCHOL. 708 (1979).
240. See GERALD SPIVACK ET AL., THE PROBLEM-SOLVING APPROACH TO ADJUSTMENT (1976).
241. See Brooks, supra note 239.
242. When a behavioral problem is related to a special educational need, the procedural protections of the Individuals with Disabilities
Education Act and its guarantee of a free appropriate public education apply.
243. See GRISSO, DOUBLE JEOPARDY, supra note 152, at 33–36; Keith R. Cruise, Special Issues in Juvenile Justice, 2 APPLIED
PSYCHOL. CRIM. JUST. 177 (2006); Bryan Neighbors et al., Co-Occurrence of Substance Abuse with Conduct, Anxiety, and Depression
Disorders in Juvenile Delinquents, 17 ADDICTIVE BEHAV. 379 (1992). Rates of disorders among youth in the juvenile justice system may
also vary as a function of sex, ethnicity, and age, with girls and non-Hispanic white youth most likely to manifest problems. Linda A. Teplin et
al., Psychiatric Disorders in Youth in Juvenile Detention, 59 ARCHIVES GEN. PSYCHIATRY 1133 (2002); FRANCES J. LEXCEN &
RICHARD E. REDDING, MENTAL HEALTH NEEDS OF JUVENILE OFFENDERS: JUVENILE JUSTICE FACT SHEET
(2000).

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 244. See generally Laurence Steinberg, The Influence of Neuroscience on U.S. Supreme Court Decisions Involving Adolescents’ Criminal
Culpability, 14 NATURE REV. NEUROSCI. 513 (2013).
245. BARBARA STRAUCH, THE PRIMAL TEEN: WHAT THE NEW DISCOVERIES ABOUT THE TEENAGE BRAIN
TELL US ABOUT OUR KIDS (2003).
246. L. Patricia Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 NEUROSCI. & BIOBEHAV. REV. 417
(2000); Mary Beckman, Crime, Culpability and the Adolescent Brain, 305(30) SCIENCE 599 (2004).
247. Daniel Offer et al., The Mental Health Professional’s Concept of the Normal Adolescent, 38 ARCHIVES GEN. PSYCHIATRY 149
(1981).
248. Patrick H. Tolan, Delinquent Behaviors and Male Adolescent Development: A Preliminary Study, 17 J. YOUTH & ADOLESCENCE
413 (1988). Most adolescents engage in some delinquent behavior but most who come into contact with the juvenile justice system do so only
once. SNYDER & SICKMUND, supra note 169, at 49, 158–60. See generally Moffitt, supra note 161.
249. SNYDER & SICKMUND, supra note 169, at 158.
250. Jennifer S. Parker et al., Predictors of Serious and Violent Offending by Adjudicated Male Adolescents, 7(3) N. AM. J. PSYCHOL. 407
(2005).
251. John Edens et al., The Assessment of Juvenile Psychopathy and its Association with Violence: A Critical Review, 19 BEHAV. SCI. & L.
53 (2001); Heather M. Gretton, Psychopathy and Recidivism in Adolescence: A Ten-Year Retrospective Follow-Up, 59 DISSERTATION
ABSTRACTS INT’L: B. SCI. & ENGINEERING 6488 (1999); Paul J. Frick et al., Psychopathy and Conduct Problems in Children, 103 J.
ABNORMAL PSYCHOL. 700 (1994); Paul J. Frick, Callous–Unemotional Traits and Conduct Problems: A Two-Factor Model of Psychopathy
in Children, 24 ISSUES IN CRIMINOLOGICAL & LEGAL PSYCHOL. 47 (1995).
252. Gina M. Vincent & Stephen D. Hart, Psychopathy in Childhood and Adolescence: Implications for the Assessment and Management of
Multi-Problem Youths, in MULTI-PROBLEM VIOLENT YOUTH: A FOUNDATION FOR COMPARATIVE RESEARCH ON
NEEDS, INTERVENTION, AND OUTCOMES 150, 157 (Raymond R. Corrado et al. eds., 2002).
253. Two such instruments are the Hare PCL-YV (mentioned supra note 158) and the Antisocial Process Screening Device (APSD). See
ADELLE FORTH ET AL., THE HARE PSYCHOPATHY CHECKLIST: YOUTH VERSION (PCL-YV), RESEARCH VERSION
(2003); PAUL J. FRICK & ROBERT HARE, THE ANTISOCIAL PROCESS SCREENING DEVICE (2001). The PCL-YV is a 20-
item expert rating scale based on a modification of the PCL-R, designed to apply to youth between 12 and 18 years old. The APSD, formerly
known as the Psychopathy Screening Device, is a 20-item rating scale based on item content from the PCL-R, with modifications meant to
apply to youth ages 6–13. Like the PCL-R, the APSD requires that items be scored on a 3-point rating scale, but it does not require an expert’s
rating; parents and teachers can complete the scale.
254. See Lipsey, supra note 172; LAWRENCE S. WRIGHTSMAN ET AL., PSYCHOLOGY AND THE LEGAL SYSTEM 383 (7th
ed. 2011).
255. See Douglas Cohen & Janet Strayer, Empathy in Conduct-Disordered and Comparison Youth, 32 DEV. PSYCHOL. 988 (1996); Nancy
Eisenberg & Janet Strayer, Critical Issues in the Study of Empathy, in EMPATHY AND ITS DEVELOPMENT 3 (Nancy Eisenberg & Janet
Strayer eds., 1987); HENGGELER, supra note 209, at 29–30, and citations therein.
256. Tate et al., supra note 173, at 778–79.
257. HENGGELER, supra note 209, at 35.
258. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 470 (5th ed.
2013). See B.B. Lahey et al., Validity of DSM-IV Subtypes of Conduct Disorder Based on Age of Onset, 7 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 435 (1998).
259. SNYDER & SICKMUND, supra note 169, at 159.
260. Id. at 160.
261. Terence P. Thornberry et al., Testing Interactional Theory: An Examination of Reciprocal Causal Relationships among Family, School,
and Delinquency, 82 J. CRIM. L. & CRIMINOLOGY 3, 33 (1991).
262. One promising program in this regard is Fast Track, a comprehensive school-based intervention designed to prevent serious antisocial
behavior and related adolescent problems in younger children (see http://www.fasttrackproject.org/fastrackoverview.php).
263. See FRANKLIN E. ZIMRING, AN AMERICAN TRAVESTY: LEGAL RESPONSES TO ADOLESCENT SEXUAL
OFFENDING (2004).
264. HENGGELER, supra note 209, at 29–30, and citations therein.
265. See, e.g., Judith V. Becker & Meg S. Kaplan, Cognitive Behavioral Treatment of the Juvenile Sex Offender, in THE JUVENILE SEX
OFFENDER 264 (Howard E. Barbaree et al. eds., 1993).
266. See, e.g., Elizabeth Letourneau & Michael H. Miner, Juvenile Sex Offenders: A Case Against the Legal and Clinical Status Quo, 17
SEXUAL ABUSE: J. RES. & TREATMENT 293 (2005).

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 267. Scott T. Ronis & Charles M. Borduin, Individual, Family, Peer, and Academic Characteristics of Male Juvenile Sexual Offenders, J.
ABNORMAL CHILD PSYCHOL. 153 (2007).
268. Id. at 159–60.
269. Id. at 153.
270. By the same token, clinicians and legal decisionmakers should not assume that a juvenile sex offender is especially dangerous, and
therefore automatically apply a secure dispositional setting. See, e.g., Clare-Ann Fortune & Ian Lambie, Sexually Abusive Youth: A Review of
Recidivism Studies and Methodological Issues for Future Research, 26 CLINICAL PSYCHOL. REV. 1078 (2006); Letorneau & Miner, supra
note 266. For both sexual and nonsexual juvenile offenders, rearrest within a decade is far more likely to be for a nonsexual violent crime than
for a sexual offense. Dennis Waite et al., Juvenile Sex Offender Re-Arrest Rates for Sexual, Violent Nonsexual and Property Crimes: A 10-Year
Follow-Up, 17 SEXUAL ABUSE: J. RES. & TREATMENT (2005). Moreover, the lack of distinctive patterns of youth offending makes
adult risk assessment models inappropriate for use with adolescents. See Michael H. Miner, Factors Associated with Recidivism in Juveniles: An
Analysis of Serious Juvenile Sex Offenders, 39 J. RES. CRIME & DELINQ. 421 (2002).
271. Charles M. Borduin et al., Multisystemic Treatment of Adolescent Sexual Offenders, 34 INT’L OFFENDER THERAPY & COMP.
CRIMINOLOGY 105 (1990); Charles M. Borduin et al., A Randomized Clinical Trial of Multisystemic Therapy with Juvenile Sexual Offenders:
Effects on Youth Social Ecology and Criminal Activity, 77 J. CONSULTING & CLINICAL PSYCHOL. 451 (2009). See also Elizabeth J.
Letourneau et al., Children and Adolescents with Sexual Behavior Problems, 9 CHILD MALTREATMENT 49 (2004) (clinical study of effects
of MST in a large sample of juvenile offenders, both with and without a history of sexual offenses).
272. Elizabeth J. Letourneau et al., Multisystemic Therapy of Juvenile Sexual Offenders: 1-year Results from a Randomized Effectiveness Trial,
23 J. FAM. PSYCHOL. 89 (2009); Elizabeth J. Letourneau et al., Two-Year Follow-up of a Randomized Effectiveness Trial Evaluating MST for
Juveniles Who Sexually Offend, 27 J. FAM. PSYCHOL. 978 (2013).
273. In a clinical trial of treatment of 135 preadolescent children with sexual behavior problems (ages 5–12), only 2% of children treated with
cognitive-behavioral therapy (compared with 10% in play therapy) were arrested or reported for sexual misbehavior within the next decade.
Melissa Y. Carpentier et al., Randomized Trial of Treatment for Children with Sexual Behavior Problems: Ten-Year Follow-Up, 74 J.
CONSULTING & CLINICAL PSYCHOL. 482 (2006). Although Carpentier et al.’s results favor cognitive-behavioral treatment, they also
suggest that seemingly deviant sexual behavior in early childhood is rarely long-standing. It is probably inappropriate to group such behavior by
young children with that by adolescent offenders and certainly not with that by adult offenders. See ASS’N FOR THE TREATMENT OF
SEXUAL ABUSERS, REPORT OF THE TASK FORCE ON CHILDREN WITH SEXUAL BEHAVIOR PROBLEMS (2006).
274. This approach now officially represents the state of the art in treatment of juvenile sex offenders. See Michael Miner et al., Standards of
Care for Juvenile Sexual Offenders of the International Association for the Treatment of Sexual Offenders, 1 SEXUAL OFFENDER
TREATMENT Issue 3 (2006) (online journal).
275. Gary B. Melton, Testimony before the U.S. Senate Subcomm. on Juvenile Justice on the Subject of Status Offenses and Child Protection at
10 (May 21, 1991) (written statement). For an update on arrest and detention rates of juvenile status offenders, see Charles Puzzanchera, Trends
in the Justice System’s Response to Status Offending: OJJDP Briefing Paper (Jan. 16, 2007), available at
http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/adolescent_15.authcheckdam.pdf. On the increase in the
number of girls in the justice system, see ABA & Nat’l Bar Ass’n, Justice by Gender: The Lack of Appropriate Prevention, Diversion and
Treatment Alternatives for Girls in the Justice System, 9 WM. & MARY J. WOMEN & L. 73 (2002).
276. The four articles found included Jan Costello, “Wayward and Noncompliant” People with Mental Disabilities: What Advocates of
Involuntary Outpatient Commitment Can Learn from the Juvenile Court Experience with Status Offense Jurisdiction, 9 PSYCHOL. PUB.
POL’Y & L. 233 (2003); Deborah M. Mosthaghel et al., Mediating Status Offender Cases: A Successful Approach, 13 MEDIATION Q. 243
(1996); Claire Shubik & Jessica Kendall, Rethinking Juvenile Status Offense Laws: Considerations for Congressional Review of the Juvenile Justice
and Delinquency Prevention Act, 45 FAM. CT. REV. 384 (2007); David J. Steinhart, Status Offenses, 6(3) FUTURE OF CHILDREN 86
(1966).
277. Id. at 4–8 (footnotes omitted).
278. See Lois A. Weithorn, Envisioning Second-Order Change in America’s Response to Troubled and Troublesome Youth, 33 HOFSTRA L.
REV. 1305, 1459–60 (2005). Consistent with the referral route from juvenile courts, the most common diagnosis in children’s inpatient
facilities is a conduct disorder, and many have involvement in the juvenile justice system. See, e.g., Alan E. Kazdin, Overt and Covert Antisocial
Behavior: Child and Family Characteristics among Psychiatric Inpatient Children, 1 J. CHILD & FAM. STUDIES 3 (1992); Dean X. Parmelee
et al., Children and Adolescents Discharged from Public Psychiatric Hospitals: Evaluation of Outcome in a Continuum of Care, 4 J. CHILD &
FAM. STUDIES 43 (1995).
279. Weithorn, supra note 278, at 1361.
280. Id. at 1360–62.
281. See id.

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 282. Edward P. Mulvey, Family Courts: The Issue of Reasonable Goals, 6 LAW & HUM. BEHAV. 49 (1982).
283. In general, voluntary consent is likely to enhance the efficacy of services. See Gary B. Melton, Decision Making by Children:
Psychological Risks and Benefits, in CHILDREN’S COMPETENCE TO CONSENT 21, 30–31 (Gary B. Melton et al. eds., 1983).
284. See Kristin Henning, Eroding Confidentiality in Delinquency Proceedings: Should Schools and Public Housing Authorities Be Notified?, 79
N.Y.U. L. REV. 520, 527 (2004). Agreeing that juvenile justice systems are ill suited for treatment, Grisso has pointed out that the results of
intervention may often be negative. GRISSO, supra note 140, at 129–30.
285. See Gary B. Melton & Robin J. Kimbrough-Melton, Integrating Assessment, Treatment, and Justice: Pipe Dream or Possibility?, in
FORENSIC MENTAL HEALTH ASSESSMENT OF CHILDREN AND ADOLESCENTS 30 (Steven N. Sparta & Gerald P. Koocher
eds., 2006).
286. Morse & Whitebread, supra note 84, at 23–24. See also GRISSO, DOUBLE JEOPARDY, supra note 152, at 130–32.
287. Melton & Kimbrough-Melton, supra note 285, at 42.

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Chapter 15

1. See GARY B. MELTON, CHILD ADVOCACY: PSYCHOLOGICAL ISSUES AND INTERVENTIONS 3–9 (1983). Cf. GARY
B. MELTON ET AL., N. PLACE TO GO: THE CIVIL COMMITMENT OF MINORS (1998) (describing the complex relation of
children’s and parents’ interests in decisions about psychiatric hospitalization).
2. A panel of the National Research Council (NRC), an arm of the National Academies of Sciences, concluded:

Despite vigorous debate over the last two decades, little progress has been made in constructing clear, reliable, valid, and useful definitions of
child abuse and neglect. The difficulties in constructing definitions include such factors as lack of social consensus over what forms of
parenting are dangerous or unacceptable; uncertainty about whether to define maltreatment based on adult characteristics, adult behavior,
child outcome, environmental context, or some combination; conflict over whether standards of endangerment or harm should be used in
constructing definitions; and confusion as to whether similar definitions should be used for scientific, legal, and clinical purposes.

NRC, UNDERSTANDING CHILD ABUSE AND NEGLECT 5 (1993) [hereinafter NRC I].
More than 20 years later, this viewpoint was echoed in the findings by a similar panel of the Institute of Medicine (IoM), another arm of the
National Academies, in concert with the NRC:

Achieving clarity in the area of child abuse and neglect has . . . been a challenge. Legal definitions vary across states; researchers apply diverse
standards in determining incidence and prevalence rates in clinical and population-based studies; and substantial obstacles challenge efforts to
learn about children’s, especially young children’s, experiences with caregiver-inflicted abuse or neglect. As a result, the characteristics of the
problem and determinations regarding its scope will differ depending on the data source used for analysis. This challenge [was] articulated in
the 1993 NRC report and continues to impede a full understanding of the nature of the child abuse and neglect problem.

IOM & NRC. NEW DIRECTIONS IN CHILD ABUSE AND NEGLECT RESEARCH 31 (Anne C. Petersen et al. eds., 2014)
[hereinafter IOM/NRC II].
These definitional differences are not merely matters for academic quibbling. As the IoM/NRC panel noted, “In research . . . , the variability
in definitions compromises learning the true scope and characteristics of the problem, understanding trends over time, and determining the
relationship between child abuse and neglect and various outcomes.” Id. at 37–38. Moreover, the multiplicity of legal definitions used to identify
mandated reporters of suspected child maltreatment, and then for those individuals to determine what they must report, means in effect that
there are numerous policies operating across the country—policies that for the most part have not been directly evaluated. Id. at 37–38.
3. See David M. Rubin et al., Placement Stability and Early Behavioral Outcomes among Children in Out-of-Home Care, in CHILD
PROTECTION: USING RESEARCH TO IMPROVE POLICY AND PRACTICE 171 (Ron Haskins et al. eds., 2007) [hereinafter
CHILD PROTECTION] (describing the relative impact on the well-being of children entering foster care and of placement stability 18 and
36 months later). By the conclusion of the study period (after three years), the average child in the nationally representative sample of foster
children experienced 3.2 placements (range = 1–18). Id. at 176. Reunification with their families of origin occurred among one-third of the
children during the study period, but more than one-fourth of those children eventually returned to foster care. Id. at 178.
For an overview of life in the contemporary foster family, see John E.B. Myers, Foster Care and Adoption, in THE APSAC HANDBOOK
ON CHILD MALTREATMENT (John E.B. Myers ed., 3d ed., 2011) [hereinafter APSAC HANDBOOK III], at 67. See also
NATIONAL COMMISSION ON FAMILY FOSTER CARE, A BLUEPRINT FOR FOSTERING INFANTS, CHILDREN, AND
YOUTHS IN THE 1990S (1991); U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT (ABCAN), NEIGHBORS
HELPING NEIGHBORS: A NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN 27–30 (1993) [hereinafter
ABCAN] (reports of commissions discussing possible responses to the foster care crisis in the 1990s).
To some degree, debate about foster care has shifted over the years from “Should it be used?” to “Who should do it?”—specifically, whether
kin or non-kin caregivers should be provided. See, e.g., Richard P. Barth et al., Kinship Care and Nonkinship Care: Informing the New Debate, in
CHILD PROTECTION, supra, at 187. Attention also has shifted to assurance of quality in foster care. See, e.g., Heather Taussig & Tali
Raviv, Foster Care and Child Well-Being: A Promise Whose Time Has Come, in HANDBOOK OF CHILD MALTREATMENT (Jill E.
Korbin & Richard D. Krugman eds., 2014) [hereinafter HANDBOOK OF CHILD MALTREATMENT], at 393.
4. See Gary B. Melton, Child Protection: Making a Bad Situation Worse?, 35 CONTEMP. PSYCHOL. 213 (1990). Research suggests that
outcomes for children, especially older children, on the cusp of placement are generally better if they remain at home. Joseph J. Doyle Jr., Child
Protection and Child Outcomes: Measuring the Effects of Foster Care, 97 AM. ECON. REV. 1583 (2007).
5. The most heated current issue in the field relates to the application of “differential response” (DR; also known as “alternative response”)
policies. DR permits state social service authorities to respond to some reports of suspected child maltreatment with an assessment or other

1103
services instead of an investigation. See Special Issue, Differential Response, 39 CHILD ABUSE & NEGLECT 1 (Lisa Merkel-Holguin &
Donald C. Bross eds., 2015). But see Elizabeth Bartholet, Differential Response: A Dangerous Experiment in Child Welfare, 42 FLA. ST. L.
REV. 573 (2015). In essence, proponents of DR believe that state child protective authorities are often forced to be unduly heavy-handed
toward families in need of help, and they believe that offering voluntary services will facilitate the helping process. However, opponents like
Bartholet believe that parents who would come to the attention of child protection authorities are typically unable or unwilling to seek services
on their own, and that children of such parents must be “saved” through nondiscretionary investigation and coercive intervention. The
proponents of DR want to narrow child protective jurisdiction; the opponents generally seek to broaden such opportunities for state
intervention.
In the same vein, contemporary pressures to strengthen child protective authorities often originate from “bad cases” offering horrific fact
situations, which are so different from ordinary practice that they are apt to distract policymakers from helpful alternatives. This ongoing
political context has shaped policy in Australia, the United Kingdom, and the United States, among other countries. See, e.g., NIGEL
PARTON, THE POLITICS OF CHILD PROTECTION (2014); Bob Lonne & Kerri Gillespie, How Do Australian Print Media
Representations of Child Abuse and Neglect Inform the Public and System Reform?, 38 CHILD ABUSE & NEGLECT 837 (2014); Bob Lonne
& Nigel Parton, Portrayals of Child Abuse Scandals in the Media in Australia and England: Impacts on Practice, Policy, and Systems, 38 CHILD
ABUSE & NEGLECT 822 (2014). See generally BOB LONNE ET AL., REFORMING CHILD PROTECTION (2008) (providing an
ethically and politically sensitive framework for child protection reform in the wealthy English-speaking countries).
6. For a listing of statutes, see National District Attorneys Association, National Center for Prosecution of Child Abuse, Mandatory
Reporting of Child Abuse and Neglect: State Statutes and Professional Ethics (2010), available at
http://www.ndaa.org/pdf/Mandatory%20Reporting%20of%20Child%20Abuse%20and%20Neglect_May%202010.pdf. See also DOUGLAS J.
BESHAROV, RECOGNIZING CHILD ABUSE: A GUIDE FOR THE CONCERNED 23 (1990) (also noting that, “unfortunately,
these laws are often vague and can be understood only within the context of court decisions and agency practices”). For histories and critiques of
the reporting laws, see ABCAN, supra note 3, at 9–11; SETH C. KALICHMAN, MANDATED REPORTING OF SUSPECTED
CHILD ABUSE: ETHICS, LAW, AND POLICY (1993); MURRAY LEVINE ET AL., THE IMPACT OF MANDATED
REPORTING ON THE THERAPEUTIC PROCESS: PICKING UP THE PIECES (1995).
7. See generally Gary B. Melton, Mandated Reporting: A Policy without Reason, 29 CHILD ABUSE & NEGLECT 9 (2005).
8. See generally LEVINE ET AL., supra note 6 (discussing effects of therapists’ reports of suspected child maltreatment to Child Protective
Services [CPS]).
9. In 2014, 3.6 million reports of suspected child maltreatment involving 6.6 million children were officially recorded in the United States.
CHILDREN’S BUREAU, CHILD MALTREATMENT 2014 (2016), at ix. The number was nearly 3.3 times larger than the figure for
1980. ABCAN, supra note 3, at 8. When the battered-child syndrome was first identified in the early 1960s (the impetus to adoption of
reporting laws), it was estimated to affect about 300 cases. C. Henry Kempe et al., The Battered Child Syndrome, 181 JAMA 17 (1962).
10. In 2014, about 40% of officially recorded reports were screened out without an investigation or an alternative response. CHILDREN’S
BUREAU, supra note 9, at ix; see supra note 5 in regard to the meaning of “alternative response.” Of the officially substantiated or indicated
cases (only about one-fifth of those reported), id. at x, more than 40% received no services at all other than the investigation, id. at xi, if indeed
an investigation can be properly labeled as a “service.”
The sheer scale of the problem, and the equally striking enormity of the failure to respond adequately, led ABCAN to describe the situation
in 1990 as a “national emergency.” ABCAN, CHILD ABUSE AND NEGLECT: CRITICAL FIRST STEPS IN RESPONSE TO A
NATIONAL EMERGENCY (1990) [hereinafter ABCAN, CHILD ABUSE AND NEGLECT]. In some respects, this emergency has
persisted and worsened. See, e.g., ABCAN, THE CONTINUING CHILD PROTECTION EMERGENCY: A CHALLENGE TO THE
NATION (1993) [hereinafter ABCAN, THE CONTINUING EMERGENCY]. Notably, the number of reports in 2014 was 50% higher
than in 1989. ABCAN, supra note 3, at 8.
Commentators may quibble about the scope of the societal—especially governmental—response that the declaration of a national emergency
engendered. However, no one can credibly argue that the response was proportionate to the seriousness of ABCAN’s findings, notwithstanding
their having received an extraordinary level of media attention. See, e.g., Gary B. Melton, Chronic Neglect of Family Violence: More than a
Decade of Reports to Guide U.S. Policy, 26 CHILD ABUSE & NEGLECT 569 (2002); Byron D. Metrikin-Gold, Personal Reflections About
the Work of the U.S. Advisory Board on Child Abuse and Neglect, 41 CHILD ABUSE & NEGLECT 3 (2015).
11. A task panel of the American Psychological Association concluded:

The stunning frequency of reports masks substantial underreporting. Studies of mental health professionals’ compliance with mandatory
reporting show, on average, that more than 30% of clinicians sometimes suspect that one of their cases involves child maltreatment but fail to
report it. Such negligence often is related to an ethical dilemma that is perceived to be present in the decision whether to report suspected
maltreatment, and that creates considerable stress for most professionals facing such a decision. Clinicians often believe that reporting
maltreatment is not in their clients’ best interest and that it conflicts with professional standards of protection of clients’ privacy. . . .

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 Complicating the dilemma is the fact that reporting hinges on identification of situations that constitute maltreatment and warrant
reporting. The laws themselves, however, are of limited assistance in such judgments. The vagueness of legal standards for child abuse and
neglect may result in both underreporting and overreporting. Most often, because professionals regard reporting as a serious matter, they
desire some level of confidence in their opinions before reporting, even though the law requires reporting of mere suspicions. Clinicians have
a “reporting threshold” when they believe there is sufficient evidence of serious actual or potential harm to a child to warrant state action.
Vagueness of statutes decreases confidence in those judgments, so that the complexity of the case and the degree of specificity in the legal
standard interact to affect decisions whether to report suspected maltreatment.

Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLINICAL CHILD PSYCHOL. 47, 51 (1995 supp.)
(citations omitted).
12. There is often an additional discretionary judgment, generally made by the prosecuting attorney but often with consultation by social
services and mental health professionals, about whether criminal child abuse charges will be brought. In some cases, there may also be an
administrative process, a tort action, or both. For example, an allegation that a child care professional has abused a child may result in action to
suspend or revoke the license of the professional and the facility in which he or she worked, and to seek monetary damages from each. For
overviews of the legal process in child protection cases and the issues that may arise, see, e.g., ROGER J.R. LEVESQUE, CHILD
MALTREATMENT AND THE LAW: RETURNING TO FIRST PRINCIPLES (2010); JOHN E.B. MYERS, LEGAL ISSUES IN
CHILD ABUSE AND NEGLECT (1992); Josephine A. Bulkley et al., The Child Abuse and Neglect Laws and Legal Proceedings, in THE
APSAC HANDBOOK ON CHILD MALTREATMENT 271 (John Briere et al. eds., 1996) [hereinafter APSAC HANDBOOK]. For a
comprehensive casebook on the range of legal issues that may arise in child maltreatment cases, see ROGER J.R. LEVESQUE, CHILD
MALTREATMENT LAW: FOUNDATIONS IN SCIENCE, PRACTICE, AND POLICY (2002).
In a provocative and novel discussion, Huntington has analyzed family law in relation to the effects on the family and its members, not the
ordinary boundaries of domains in the law. CLARE HUNTINGTON, FAILURE TO FLOURISH: HOW LAW UNDERMINES
FAMILY RELATIONSHIPS (2014). For analogous considerations of the importance of legal architecture in structuring family life,
particularly in relation to the protection of children, see, e.g., Gary B. Melton, Introduction: Personal Satisfaction and the Welfare of Families,
Communities, and Society, in THE INDIVIDUAL, THE FAMILY, AND SOCIAL GOOD: PERSONAL FULFILLMENT IN TIMES
OF CHANGE ix (Gary B. Melton ed., 1995); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA.
L. REV. 851 (1988). Accordingly, the most significant legal elements of an effective child protection strategy may be policies that promote
community cohesion (e.g., in zoning law), that prevent community destruction (e.g., in regulation of liquor licenses), that promote professional
responsibility for children’s safety (e.g., in administrative and tort law defining expectations for health care providers), that create or strengthen
norms compatible with children’s safety (e.g., education law providing for school plans for prevention of bullying and support for parents), and
so on. See generally Robin J. Kimbrough-Melton & Gary B. Melton, “Someone Will Notice, and Someone Will Care”: How to Build Strong
Communities for Children, 41 CHILD ABUSE & NEGLECT 67 (2015).
13. See generally BARBARA NELSON, MAKING AN ISSUE OF CHILD ABUSE: POLITICAL AGENDA SETTING FOR
SOCIAL PROBLEMS (1984) (discussing the history of child protection legislation).
14. See ANTHONY PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977); Robert H. Mnookin,
Children’s Rights beyond Kiddie Libbers and Child Savers, 7 J. CLINICAL CHILD PSYCHOL. 163 (1978).
15. See, e.g., Elizabeth Bartholet, The Challenge of Children’s Rights Advocacy: Problems and Progress in the Area of Child Abuse and Neglect,
3 WHITTIER J. CHILD & FAM. ADVOC. 3 (2004); James Garbarino et al., Who Owns the Children?: An Ecological Perspective on Public
Policy, in LEGAL REFORMS AFFECTING CHILD AND YOUTH SERVICES 43 (Gary B. Melton ed., 1982).
16. See, e.g., Michael S. Wald, State Intervention on Behalf of “Neglected” Children: A Search for Realistic Standards, 27 STAN. L. REV. 985
(1975). Long a professor at Stanford Law School (now professor emeritus), Wald also served as deputy general counsel of the United States
Department of Health and Human Services, director of social services for the city of San Francisco, and an executive in the Hewlett
Foundation.
17. Wald was the reporter for the volume on JUVENILE JUSTICE STANDARDS RELATING TO ABUSE AND NEGLECT
(tentative draft 1977) [hereinafter STANDARDS].
18. Three-fourths of reports to CPS are for suspected neglect. CHILDREN’S BUREAU, supra note 9, at x. Echoing other commentators
who have questioned the usefulness of this process, Wald has concluded “that the net impact of expanding the scope of the child protection
system [beyond severe physical abuse] has not been beneficial to most children who experience inadequate parental care that significantly affects
their development.” Michael S. Wald, Taking the Wrong Message: The Legacy of the Identification of the Battered Child Syndrome, in C.
HENRY KEMPE: A 50-YEAR LEGACY TO THE FIELD OF CHILD ABUSE AND NEGLECT 89, 89 (Richard D. Krugman & Jill
E. Korbin eds., 2013).
19. Michael S. Wald, Beyond CPS: Developing an Effective System for Helping Children in “Neglectful” Families, 41 CHILD ABUSE &
NEGLECT 49, 51 (2015).

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 20. Id. at 60–63.
21. JOSEPH GOLDSTEIN ET AL., BEFORE THE BEST INTERESTS OF THE CHILD (1979); JOSEPH GOLDSTEIN ET
AL., BEYOND THE BEST INTERESTS OF THE CHILD (1973).
22. GOLDSTEIN ET AL., BEFORE THE BEST INTERESTS OF THE CHILD, supra note 21, at Child Placement Code of
Hampstead-Haven, ¶ 10.5.
23. Id., ¶ 30.9.
24. Cf. BESHAROV, supra note 6, at 12–19 (lamenting the number of unfounded reports of child maltreatment), 122–33 (advocating
reporting of parents with mental illness, intellectual disabilities, substance abuse, or “inability to care for a newborn,” even when no harm to
their children has occurred).
25. For policies and practices recommended by advocates in domestic violence programs to shield battered mothers and their children, see,
e.g., Barbara J. Hart, Parental Abduction and Domestic Violence (paper presented at the meeting of the American Prosecutors Research
Institute, Nov. 1992); Barbara J. Hart, Safety Planning for Children: Strategizing for Unsupervised Visits with Batterers (1990) (unpublished
manuscript, Pennsylvania Coalition against Domestic Violence).
Especially when the violent spouse is the husband (rather than the wife), and there are frequent acts of violence against the spouse, there is a
high probability of physical child abuse. Susan M. Ross, Risk of Physical Abuse in Children of Spouse Abusing Parents, 20 CHILD ABUSE &
NEGLECT 589 (1996).
26. In beginning one of its reports with several typical case examples, ABCAN, supra note 3, described the families as follows:

Their stories are not dramatic. They are not the sort that appear on the front pages of newspapers or the covers of news magazines. The
adults involved are not evil people.
But the families in the stories are people in real trouble who have many problems, few resources, and little access to help. The children are
at significant risk, the community has failed to provide the help necessary to ensure their safe and healthy development, and the child
protection system as currently designed may even interfere with the help that is needed.

Id. at 1. This image is consistent with epidemiological data showing the predominance of neglect in the child protection system. See supra note
18.
27. ABCAN, CHILD ABUSE AND NEGLECT, supra note 10; ABCAN, CREATING CARING COMMUNITIES: BLUEPRINT
FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT (1991) [hereinafter ABCAN, CREATING
CARING COMMUNITIES]; ABCAN, THE CONTINUING EMERGENCY, supra note 10 (presenting a new national strategy for child
protection); ABCAN, A NATION’S SHAME: FATAL CHILD ABUSE AND NEGLECT IN THE UNITED STATES (1995). All
these reports are available at
http://www.ucdenver.edu/academics/colleges/medicalschool/departments/pediatrics/subs/can/KempeNatlForum/Pages/Reports.aspx.
28. ABCAN, CHILD ABUSE AND NEGLECT, supra note 10.
29. ABCAN, CHILD ABUSE AND NEGLECT, supra note 10, at 80.
30. ABCAN, supra note 3, at 11.
31. ABCAN, CHILD ABUSE AND NEGLECT, supra note 10, at viii.
32. ABCAN, CREATING CARING COMMUNITIES, supra note 27, at 35–49. Both on their own and because of the influence of
ABCAN, several other boards and commissions in the 1990s adopted a similar perspective. See Patricia Schene, Child Abuse and Neglect Policy:
History, Models, and Future Directions, in APSAC HANDBOOK, supra note 12, at 385. Several foundations also launched initiatives designed
to implement the proposals of ABCAN and similar groups. See, e.g., Leslie Mitchel & Anne Cohn Donnelly, Healthy Families America:
Building a National System, APSAC ADVISOR, Winter 1993, at 9 (describing a national initiative led by the National Committee to Prevent
Child Abuse and funded by Ronald McDonald Children’s Charities); Center for the Study of Social Policy, A Community-Based Approach to
Child Protection (background paper for an initiative by the Edna McConnell Clark Foundation, Jan. 1995); Edna McConnell Clark
Foundation, Community Partnerships for the Protection of Children (guidelines for grant applications, June 1995). See also Gary B. Melton,
Infant Home Visitation: One Step toward Creation of Caring Communities, APSAC ADVISOR, Winter 1993, at 5 (describing ABCAN’s logic
in making recommendations that resulted in the Healthy Families America initiative noted supra).
33. ABCAN, CREATING CARING COMMUNITIES, supra note 27, at 46.
34. ABCAN, supra note 3. Background papers that ABCAN used in its deliberations were published in PROTECTING CHILDREN
FROM ABUSE AND NEGLECT: FOUNDATIONS FOR A NEW NATIONAL STRATEGY (Gary B. Melton & Frank D. Barry eds.,
1994) [hereinafter PROTECTING CHILDREN]. Twenty-year follow-ups, which generally confirmed the conclusions in PROTECTING
CHILDREN, supra, on the basis of substantially more research, were published in a special issue of CHILD ABUSE & NEGLECT in March
2015 (Vol. 41).
35. For an overview of the approach, including strategies and principles, see Kimbrough-Melton & Melton, supra note 12. Studies of the

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implementation of Strong Communities can be found in Special Issue, Strong Communities as Safe Havens for Children, 31(2) FAM. &
COMMUNITY HEALTH 83 (Bonnie J. Holaday & Gary B. Melton eds., 2008). For an overview of the nature and effects of Strong
Communities, see Gary B. Melton, Strong Communities for Children: A Community-Wide Approach to Prevention of Child Maltreatment, in
HANDBOOK OF CHILD MALTREATMENT, supra note 3, at 329.
36. See Gary B. Melton, Hospitality: Transformative Service to Children, Families, and Communities, 69 AM. PSYCHOLOGIST 761
(2014). Hospitality is an ancient practice in religions in the Abrahamic tradition. Pohl has been influential in generating interest in the potential
significance of the concept in contemporary communities. CHRISTINE D. POHL, MAKING ROOM: RECOVERING HOSPITALITY
AS A CHRISTIAN TRADITION (1999); Christine D. Pohl, Hospitality and the Mental Health of Children and Families, 81 AM. J.
ORTHOPSYCHIATRY 482 (2011).
37. James McDonell et al., Strong Communities for Children: Results of a Multi-Year Community-Based Initiative to Protect Children from
Harm, 41 CHILD ABUSE & NEGLECT 79 (2015).
38. Jill D. McLeigh et al., Community Differences in the Implementation of Strong Communities for Children, 41 CHILD ABUSE &
NEGLECT 97 (2015).
39. See Jill D. McLeigh et al., The Cultural Adaptation of a Community-Based Child Maltreatment Prevention Initiative,56 FAM.
PROCESS 393 (2017).
40. Murray Straus, a distinguished sociologist at the University of New Hampshire who died in 2016, was the pioneer in research on family
violence. He was passionate in his disapproval of all forms of family violence, perhaps especially corporal punishment of children. Summarizing
survey data in 1994, Straus concluded that “more than 90 percent of American parents hit toddlers and most continue to hit their children for
years. For at least one out of five, and probably closer to half of all children, hitting begins when they are infants and does not end until they
leave home.” MURRAY A. STRAUS, BEATING THE DEVIL OUT OF THEM: CORPORAL PUNISHMENT IN AMERICAN
FAMILIES 3 (1994).
It is likely that Straus’s summary overstates the frequency of corporal punishment today, although the norms in relation to corporal
punishment are increasingly unsettled. Referrals to CPS for physical abuse declined by more than 50% between the early 1990s and 2010, but
surveys show less decline. IOM/NRC II, supra note 2, at 48–49. Almost two-thirds of American parents in 2016, compared with three-fourths
in 1946, told Gallup Poll interviewers that they approved of corporal punishment. Lydia Saad, Gallup Vault: 1950s Nostalgia for Corporal
Punishment 2 (Aug. 16, 2016) (press release by the Gallup Organization). The positive response to a similar poll by Five Thirty-Eight fell from
84% in 1986 to 70% in 2012. Marcy Enten, Americans’ Opinions on Spanking Vary by Party, Race, and Religion (Sept. 15, 2014) (press release
by Five Thirty-Eight).
Corporal punishment in the schools has declined more precipitously (from 5% of students in K–12 in 1982 to 0.5% in 2006). ELIZABETH
GERSHOFF ET AL., CORPORAL PUNISHMENT IN U.S. PUBLIC SCHOOLS: LEGAL PRECEDENTS, CURRENT
PRACTICES, AND FUTURE POLICY 11 (2015). However, approval for the practice varies dramatically across regions. About 20 states,
mostly in the South, permit corporal punishment; in the 2005–06 school year, 7.5% of schoolchildren in Mississippi were subjected to physical
punishment at school. Id.at 10. Almost three-fourths of the schoolchildren subjected to corporal punishment in the United States in 2005–06
were in five states (Texas, Mississippi, Alabama, Arkansas, and Georgia).
41. Data from the 1990s indicated that middle-income parents may have been somewhat more likely to use corporal punishment on
adolescents, STRAUS, supra note 40, at 45, although the frequency of their use was somewhat less than that of lower-income parents, id. at
46–47. In other words, lower-income parents were relatively unlikely to hit their teenage children at all, but if they did, they did so relatively
often. When data are summed across all ages, socioeconomic status was unrelated to use of corporal punishment, id. at 56, and European
Americans were slightly more likely to use corporal punishment than were African Americans or Hispanic Americans, id. at 56–57. Recent
surveys give a somewhat different picture. African Americans, Southerners, born-again Christians, and Republicans are more likely than others
to approve of spanking. Saad, supra note 40.
42. STANDARDS, supra note 17, § 2.1(A).
43. Id., commentary at 63.
44. Id., commentary at 63–64.
45. N.Y. FAM. CT. ACT § 1012(e) (McKinney 2015).
46. WYO. STAT. ANN. § 14-3-202(a)(ii)(B) (2015) (emphasis added).
47. E.g., 325 ILL. COMP. STAT. 5/3(e) (2016); NEV. REV. STAT. § 432B.150 (2015). For an interesting case defining “reasonable”
corporal punishment, see Hawaii v. Crouser, 911 P.2d 725 (Haw. 1996).
48. A number of courts have upheld the constitutionality of broad standards (e.g., “cruelty”) for child abuse. E.g., People v. Jennings, 641
P.2d 276 (Colo. 1982) (“cruel punishment”); Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978) (“cruel or inhuman treatment”); see also infra
text accompanying notes 61–64.
49. STANDARDS, supra note 17, § 2.1(B).

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 50. Id., commentary at 65–66.
51. E.g., N.J. STAT. ANN. § 9:6-8.9(d)(2) (West 2016); R.I. GEN. LAWS § 40-11-2(1)(v) (2016).
52. E.g., TENN. CODE ANN. § 37-1-102(12)(B) (2016).
53. More than one-third of the children who receive services as a result of substantiation of a report of suspected maltreatment are placed in
foster care. CHILDREN’S BUREAU, supra note 9, at xii.
54. See Brett Drake & Melissa Jonson-Reid, Poverty and Child Maltreatment, in HANDBOOK OF CHILD MALTREATMENT, supra
note 3, at 131; Leroy H. Pelton, The Continuing Role of Material Factors in Child Maltreatment and Placement, 41 CHILD ABUSE &
NEGLECT 30 (2015).
55. See supra notes 19–20 and accompanying text.
56. Kelly Weisberg, The “Discovery” of Sexual Abuse: Experts’ Role in Legal Formulation, 18 U.C. DAVIS L. REV. 1 (1984).
57. From the early 1990s to about 2010, the proportion of CPS cases involving child sexual abuse and the number of sexual assaults or rapes
of 12- to 17-year-olds (whether or not they were reported to law enforcement) declined by about two-thirds. IOM/NRC II, supra note 2, at
48–49. For explanations of this decline, see David Finkelhor & Lisa M. Jones, Explanations for the Decline in Child Sexual Abuse Cases (Juvenile
Justice Bulletin, Jan. 2004), available at www.ncjrs.gov/pdffiles1/ojjdp/199298.pdf.
58. Reflecting the increased prosecutorial activity, appellate cases involving sexual abuse rose dramatically during the late 1980s and early
1990s. Gary Melton et al., Empirical Research on Child Maltreatment and the Law, 24 CLINICAL CHILD PSYCHOL. 47, 47–48 (1995).
For a review of research on the frequency of criminal trials in sexual abuse cases, see id. at 55.
59. STANDARDS, supra note 17, § 2.1(D) and commentary.
60. Id., commentary at 70–71.
61. Id., commentary at 72.
62. See, e.g., ALA. CODE §§ 13A-6-66 (2016); ALASKA STAT. § 11.41.436 (2014); 720 ILL. REV. STAT. 5/11-1.50 (2016); KY.
REV. STAT. ANN. § 510.110 (2016).
63. Arkansas and Kansas are among the states that do not specifically define “sexual abuse” in their criminal statutes. See infra note 64.
64. See, e.g., KAN. STAT. ANN. § 38-2202 (2016) (defining sexual abuse by reference to criminal statutes); ARK. CODE ANN. § 9-27-
303 (2016).
65. IOM & NRC. CONFRONTING COMMERCIAL SEXUAL EXPLOITATION AND SEX TRAFFICKING OF MINORS IN
THE UNITED STATES 3 (2013).
66. See, e.g., JAMES GARBARINO ET AL., THE PSYCHOLOGICALLY BATTERED CHILD (1986); PSYCHOLOGICAL
MALTREATMENT OF CHILDREN AND YOUTH (Marla R. Brassard et al. eds., 1987).
67. There is substantial evidence for adverse psychological effects on children as a result of their parents’ divorce. See, e.g., Paul R. Amato,
Life-Span Adjustment of Children to Their Parents’ Divorce, FUTURE OF CHILDREN, Spring 1994, at 143; Paul R. Amato & Christopher J.
Anthony, Estimating the Effects of Parental Divorce and Death with Fixed Effects Models, 76 J. MARRIAGE & FAM. 370 (2014); Sara
McLanahan et al., The Causal Effects of Father Absence, 39 ANN. REV. SOCIOLOGY 398 (2013); Jennifer Miner Weaver & Thomas J.
Schofield, Mediation and Moderation of Divorce Effects on Children’s Behavior Problems, 29 J. FAM. PSYCHOL. 39 (2015). Many of these
effects persist even into adulthood. Paul R. Amato & Bruce Keith, Parental Divorce and Adult Well-Being: A Meta-Analysis, 53 J. MARRIAGE
& FAM. 43 (1991). See, e.g., David M. Fergusson & Geraldine F.H. McLeod, Parental Separation/Divorce in Childhood and Partnership
Outcomes at Age 30, 55 J. CHILD PSYCHOL. & PSYCHIATRY 352 (2014); Howard S. Friedman et al., Psychosocial and Behavioral
Predictors of Longevity: The Aging and Death of the “Termites,” 50 AM. PSYCHOLOGIST 69 (1995). Given these effects and the fact that
divorce is clearly willful behavior on the part of at least one parent, could it be termed “abusive”?
68. STANDARDS, supra note 17, § 2.1(C).
69. WYO. STAT. ANN. § 14-3-202(ii)(A) (2015).
70. For examples of courts holding child abuse statutes unconstitutionally vague, see, e.g., State v. Ballard, 341 So. 2d 957 (Ala. App. 1976)
(“inflict unjustifiable physical pain or mental suffering . . . in a manner which is not ordinary and reasonable discipline and punishment”); People
v. Hoehl, 568 P.2d 484 (Colo. 1977) (conduct that “may endanger the child’s life or health”); People v. Maness, 732 N.E.2d 545 (failure to take
“reasonable steps” to prevent further sexual abuse); State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979) (“unjustifiable physical pain”); State v.
Hodges, 1999 WL 618861 (Tenn. Crim. App. 1999) (“inflict injury,” “adversely affect the health and welfare,” and “act of abuse”); State v.
Gallegos, 384 P.2d 967 (Wyo. 1963) (“cause, encourage, aid or contribute to the endangering of the health, welfare, or morals”). For examples
of courts finding child abuse statutes sufficiently precise, see, e.g., People v. Smith, 678 P.2d 886 (Cal. 1984) (inflicting “cruel or inhuman
corporal punishment or injury resulting in a traumatic condition”); People v. Jennings, 641 P.2d 276 (Colo. 1982) (“cruel punishment”);
DuFresne v. State, 826 So. 2d 272 (Fla. 2002) (“mental injury”); State v. Faber, 647 N.W.2d 67 (Neb. 2002) (“endanger”); Gilson v. State, 8
P.3d 883 (Okla. Crim. App. 2000) (“unreasonable force”); Campbell v. State, 999 P.2d 649 (Wyo. 2000) (“endangering of the child’s life or
health by violating a duty of care, protection or support”).

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 71. JEANNE GIOVANNONI & ROSINA M. BECERRA, DEFINING CHILD ABUSE (1979).
72. See, e.g., Vicki Ashton, The Relationship between Attitudes toward Corporal Punishment and the Perception and Reporting of Child
Maltreatment, 25 CHILD ABUSE & NEGLECT 389 (2001).
73. Kempe et al., supra note 9. C. Henry Kempe led the movement for adoption of mandated reporting laws and the creation of a field of
research on child maltreatment, organized the International Society for Prevention of Child Abuse and Neglect, and founded the Kempe
Center and the Kempe Foundation. A Holocaust survivor and an unaccompanied-minor refugee to the United States, Kempe had exceptional
empathy for the children who had the worst hand dealt to them. His biography by one of his daughters provides useful insights about the
motivation that underlay the creation of a movement to help the most vulnerable children. See ANNIE KEMPE, A GOOD KNIGHT FOR
CHILDREN: C. HENRY KEMPE’S QUEST TO PROTECT THE ABUSED CHILD (2007).
For an overview of child protection efforts in the United States prior to 1962, see JOHN E.B. MYERS, CHILD PROTECTION IN
AMERICA: PAST, PRESENT, AND FUTURE (2006).
74. SAMUEL M. DAVIS ET AL., CHILDREN IN THE LEGAL SYSTEM: CASES AND MATERIALS 559 (4th ed. 2005).
75. See supra notes 9–10.
76. In international work on child protection policy, Melton has been struck by what appears to be a natural evolution of child protection
efforts. See generally Gary B. Melton & Arlene Bowers Andrews, Building Systems for Safety in the Family: The U.S. Experience, 16 J. INT’L &
COMP. SOC. WELFARE 24 (2002). Other Western countries have tended to be on the same path as the United States, but several years
delayed. Thus the substantial increase in sexual abuse cases has come later to Europe, and the range of responses considered—notwithstanding
great debate about their efficacy—has been very similar in most countries to that in the United States.
Perhaps even more to the point, in newly democratic societies there seems to be a similar evolution. When people are freed to consider
domestic violations of human decency and individual rights, their first impulse is to try to ferret out cases of severe child abuse—to enact a
reporting law and to establish an investigation system. Soon this system becomes overwhelmed, and calls occur for its reform. See also David
Finkelhor, Introduction, in APSAC HANDBOOK, supra note 12, at ix (describing the evolution of the child protection movement).
77. See supra note 20.
78. See, e.g., THE BACKLASH: CHILD PROTECTION UNDER FIRE (John E.B. Myers ed., 1994); David Finkelhor, “The Backlash”
in Sociological Perspective, APSAC ADVISOR, Fall 1995, at 1.
We suspect that there are few contexts in which social science researchers and human service professionals are as polarized as they are in
matters pertaining to child maltreatment, particularly in regard to the response of the criminal justice system. To get a sense of this debate, see
Symposium, Suggestibility of Child Witnesses: The Social Science Amicus Brief in State of New Jersey v. Margaret Kelly Michaels, 1 PSYCHOL.
PUB. POL’Y & L. 243 (1995).
79. See, e.g., STRAUS, supra note 40, at 19–48; Robert F. Drinan, Saving Our Children: Focusing the World’s Attention on the Abuse of
Children, 26 LOY. U. CHI. L. REV. 137 (1995); Gary B. Melton, Socialization in the Global Community: Respect for the Dignity of Children,
46 AM. PSYCHOLOGIST 66 (1991).
80. Ross D. Parke & C.W. Collmer, Child Abuse: An Interdisciplinary Analysis, in 5 REVIEW OF CHILD DEVELOPMENT
RESEARCH 509, 513 (E. Mavis Hetherington ed., 1975).
81. JAMES GARBARINO & ANNE GARBARINO, EMOTIONAL MALTREATMENT OF CHILDREN 8 (1980).
82. Id. at 18–20.
83. DAVID GIL, VIOLENCE AGAINST CHILDREN: PHYSICAL ABUSE IN THE UNITED STATES 6 (1970).
84. Katherine K. Christoffel et al., Standard Definitions for Childhood Injury Research: Excerpts of a Conference Report, 89 PEDIATRICS
1027 (1992).
85. Ofelia Rodriguez-Srednicki & James A. Twaite, Understanding and Reporting Child Abuse: Legal and Psychological Perspectives, 32 J.
PSYCHIATRY & L. 315, 319 (2004).
86. NRC I, supra note 2, at 57–77.
87. Id. at 345.
88. In an expansive review covering even evidence for evolutionary and genetic factors in child maltreatment, Belsky has clearly stated the
need for an ecological approach that examines the interaction among multiple determinants of abuse and neglect:

When the etiology of child maltreatment is considered, there is no shortage of causal agents that are invoked to explain the occurrence of
physical child abuse and neglect. Some of the factors are historical (e.g., societal attitudes toward family privacy) and some are
contemporaneous (e.g., poverty); some are cultural (e.g., tolerance of violence) and some are situational (e.g., crying episode); and some are
attributes of parents (e.g., hostile personality) and some of children (e.g., difficult temperament). Although past reviewers of the literature
have identified psychiatric or psychological models of maltreatment, which focus attention on the characteristics of the perpetrator,
sociological models, which focus attention on the contextual conditions that give rise to abuse and neglect, and social-interactional or effect-
of-child-on-caregiver models, which underscore the dyadic nature of problematic parenting, it is clear today that no one such model is

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 adequate . . .
[C]hild maltreatment is now widely recognized to be multiply determined by a variety of factors operating through transactional processes
at various levels of analysis (i.e., life-course history to immediate situational to historical–evolutionary) in the broad ecology of parent–child
relations. Moreover, it is well appreciated that what determines whether child maltreatment will take place is the balance of stressors and
supports or of potentiating (i.e., risk) and compensatory (i.e., protective factors). When stressors (of a variety of kinds: parent, child, social
conditions) outweigh supports (also of a variety of kinds), or when potentiating factors [overbalance] compensatory ones, the probability of
child maltreatment increases. In other words . . . there not only appears to be no single cause of child maltreatment, but no necessary or
sufficient causes. All too sadly, there are many pathways to child abuse and neglect.

Jay Belsky, Etiology of Child Maltreatment: A Developmental–Ecological Analysis, 114 PSYCHOL. BULL. 413, 413 (1993).
89. See, e.g., Liza Little & Glenda Kaufman Kantor, Using Ecological Theory to Understanding Intimate Partner Violence and Child
Maltreatment, 19 J. COMM. HEALTH NURSING 133 (2002); James Garbarino, An Ecological Perspective on the Effects of Violence on
Children, 29 J. COMM. PSYCHOL. 361 (2001).
90. “Behavioral repertoire” refers to the range of behaviors available to an individual in a particular situation.
91. For a brief review of the literature on the significance of child characteristics in the etiology of child maltreatment, see NRC I, supra note
2, at 123–25. See also Robert T. Ammerman, The Role of the Child in Physical Abuse: A Reappraisal, 6 VIOLENCE & VICTIMS 87 (1991)
(arguing that aggressive and disobedient behavior by children may maintain, but probably does not create, physical abuse).
92. See generally EXTENDING FAMILIES: THE SOCIAL NETWORKS OF PARENTS AND THEIR CHILDREN (Moncrieff
Cochran et al. eds., 1990).
93. Martha Farrell Erickson & Byron Egeland, Child Neglect, in APSAC HANDBOOK, supra note 12, at 4, 13.
94. See generally Gary B. Melton, The Improbability of Prevention of Sexual Abuse, in CHILD ABUSE PREVENTION 168 (Diane J.
Willis et al. eds., 1992) (arguing that a broad strategy of family strengthening is most likely to have the effect of preventing sexual abuse, but
that such a strategy will have stronger effects on other potential childhood problems).
95. Lucy Berliner & Diana M. Elliott, Sexual Abuse of Children, in APSAC HANDBOOK, supra note 12, at 51, 53 (citations omitted).
96. See, e.g., id.; NRC I, supra note 2, at 133.
97. Gallup Poll Finds Far More of America’s Children Are Victims of Physical and Sexual Abuse Than Officially Reported, 14 ABA JUV. &
CHILD WELFARE L. REP. 171, 172 (1996); Leroy Pelton, The Role of Material Factors in Child Abuse and Neglect, in PROTECTING
CHILDREN, supra note 34, at 131, 135. In a study conducted by colleagues McDonell and Skosireva, the frequency of hospital diagnoses that
physicians believed might indicate child maltreatment was linked to direct observations of neighborhood quality (e.g., presence of trash,
indications of the neighborhood’s name). Even when socioeconomic status was statistically controlled for, preliminary analyses showed that
neighborhood quality accounted for a very large proportion of the variation across communities in the prevalence of diagnoses that might
indicate sexual abuse. The findings provide robust support for the argument by Pelton, supra, and others that sexual abuse, like other forms of
child maltreatment, is in substantial part the product of social factors. James R. McDonell & Anna K. Skosireva, Neighborhood Characteristics,
Child Injuries, and Child Maltreatment, 2 CHILD INDICATORS RES. 133 (2009).
98. David A. Wolfe, The Role of Intervention and Treatment Services in the Prevention of Child Abuse and Neglect, in PROTECTING
CHILDREN, supra note 34, at 224, 225.
99. Richard J. Gelles, Child Abuse as Psychopathology: A Sociological Critique and Reformulation, 43 AM. J. ORTHOPSYCHIATRY 611
(1973).
100. John J. Spinetta & David Rigler, The Child Abusing Parent: A Psychological Review, 77 PSYCHOL. BULL. 296, 299 (1972).
101. See, e.g., Martha Farrell Erickson & Byron Egeland, Child Neglect, in THE APSAC HANDBOOK ON CHILD
MALTREATMENT 3, 13–14 (John E.B. Myers et al. eds., 2d ed. 2002); NRC I, supra note 2, at 111–15; David J. Kolko, Child Physical
Abuse, in APSAC HANDBOOK, supra note 12, at 21, 24–25; Wolfe, supra note 98, at 224–25.
102. NRC I, supra note 2, at 111 (citations omitted). There may be stronger evidence for distinctiveness in family dynamics than abuser
characteristics. See, e.g., James M. Gaudin, Jr., et al., Family Functioning in Neglectful Families, 20 CHILD ABUSE & NEGLECT 363 (1995)
(relative to a comparison group of low-income families enrolled in public support programs, neglectful families were substantially less organized,
less democratic, more chaotic, less verbally expressive, and less positive in their affect). It is noteworthy that there nonetheless was wide variation
among the neglectful families in Gaudin et al.’s study.
103. See, e.g., NRC I, supra note 2, at 115–16; Erickson & Egeland, supra note 101, at 13; Kolko, supra note 101, at 25–26. See also Joel S.
Milner et al., Empathic Responsiveness and Affective Reactivity to Infant Stimuli in High- and Low-Risk for Physical Abuse Mothers, 19 CHILD
ABUSE & NEGLECT 767 (1995) (finding that high-risk mothers’ empathy did not differ in response to changes in infants’ affect).
104. Mindy S. Rosenberg & N. Dickon Reppucci, Abusive Mothers: Perceptions of Their Own and Their Children’s Behavior, 51 J.
CONSULTING & CLINICAL PSYCHOL. 674 (1983).
105. It is noteworthy that Parents Anonymous groups generally focus on enhancing the parents’ sense of competence. See Virginia Murphy-

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Berman & Gary B. Melton, The Self-Help Movement and Neighborhood Support for Troubled Families, in TOWARD A CHILD-
CENTERED, NEIGHBORHOOD-BASED CHILD PROTECTION PROGRAM 233 (Gary B. Melton et al. eds., 1996).
106. Pelton, supra note 97, at 153 (citations omitted).
107. James Garbarino & Ann Crouter, Defining the Community Context of Parent–Child Relations: The Correlates of Child Maltreatment, 49
CHILD DEV. 604 (1978); James Garbarino & Kathleen Kostelny, Neighborhood-Based Programs, in PROTECTING CHILDREN, supra
note 34, at 304, 315–22; James Garbarino et al., Child Maltreatment as a Community Problem, 16 CHILD ABUSE & NEGLECT 455
(1992); James Garbarino et al., Children in Dangerous Environments: Child Maltreatment in the Context of Community Violence, in CHILD
ABUSE, CHILD DEVELOPMENT, AND SOCIAL POLICY 167 (Dante Cicchetti & Sheree Toth eds., 1993) [hereinafter CHILD
ABUSE AND POLICY]; James Garbarino & Deborah Sherman, High-Risk Neighborhoods and High-Risk Families: The Human Ecology of
Child Maltreatment, 51 CHILD DEV. 188 (1980).
Other researchers have confirmed the significance of neighborhood well-being in children’s safety both inside and outside their homes. See,
e.g., Asher Ben-Arieh, Community Characteristics, Social Service Allocation, and Child Abuse Reporting, 41 CHILD ABUSE & NEGLECT
136 (2015); Claudia J. Coulton et al., Community Level Factors and Child Maltreatment Rates, 66 CHILD DEV. 1262 (1995); Claudia J.
Coulton et al., How Neighborhoods Influence Child Maltreatment: A Review of the Literature and Alternative Pathways, 31 CHILD ABUSE &
NEGLECT 1117 (2007); Clifton R. Emery et al., Neighborhood Informal Social Control and Child Maltreatment: A Comparison of Protective
and Punitive Approaches, 41 CHILD ABUSE & NEGLECT 158 (2015); Joy Swanson Ernst, Community-Level Factors and Child
Maltreatment in a Suburban County, 25 SOC. WORK RES. 133 (2001); Beth E. Molnar et al., A Multi-Level Study of Neighborhoods and
Parent-to-Child Physical Aggression: Results from the Project on Human Development in Chicago Neighborhoods, 8 CHILD
MALTREATMENT 84 (2003); Beth E. Molnar et al., Neighborhood-Level Social Problems and Substantiated Cases of Child Maltreatment, 51
CHILD ABUSE & NEGLECT 41 (2016). See also Gary B. Melton, It’s Time for Neighborhood Research and Action, 16 CHILD ABUSE &
NEGLECT 909 (1992) (commenting on the implications of Garbarino et al.’s work).
The overall significance of neighborhood factors in child development is well established. See, e.g., NRC, LOSING GENERATIONS:
ADOLESCENTS IN HIGH-RISK SETTINGS (1993); Jeanne Brooks-Gunn et al., Do Neighborhoods Influence Child and Adolescent
Development?, 99 AM. J. SOCIOLOGY 353 (1993); Claudia J. Coulton & Shanta Pandey, Geographic Concentration of Poverty and Risk to
Children in Urban Neighborhoods, 35 AM. BEHAV. SCIENTIST 238 (1992); Tama Leventhal & Jeanne Brooks-Gunn, The Neighborhoods
They Live In: The Effect of Neighborhood Residence on Child and Adolescent Outcomes, 126 PSYCHOL. BULL. 309 (2000).
108. Garbarino & Crouter, supra note 107.
109. Garbarino & Sherman, supra note 107.
110. James R. McDonell, Neighborhood Characteristics, Parenting, and Children’s Safety, 83 SOC. INDICATORS 177 (2007).
111. Richard J. Gelles & Murray A. Straus, Violence in the American Family, 35(2) J. SOC. ISSUES 15, 33 (1979).
112. Neglectful mothers often report that their own mothers are seldom positive toward them (e.g., they do not really listen or provide
companionship to them), and that their male partners are relatively unlikely to provide them with instrumental support (e.g., babysitting). Carol
Coohey, Neglectful Mothers, Their Mothers, and Partners: The Significance of Mutual Aid, 19 CHILD ABUSE & NEGLECT 743 (1993).
113. Carol Coohey, Child Maltreatment: Testing the Social Isolation Hypothesis, 20 CHILD ABUSE & NEGLECT 241, 249–50, 251
(1996) (citations omitted).
114. ROSS A. THOMPSON, PREVENTING CHILD MALTREATMENT THROUGH SOCIAL SUPPORT: A CRITICAL
ANALYSIS (1995) [hereinafter THOMPSON, PREVENTING CHILD MALTREATMENT]; Ross A. Thompson, Social Support and the
Prevention of Child Maltreatment, in PROTECTING CHILDREN, supra note 34, at 40.
115. THOMPSON, PREVENTING CHILD MALTREATMENT, supra note 114, at 17.
116. Id. at 29, 100–01, 112.
117. Id. at 163.
118. See supra notes 112–13.
119. THOMPSON, PREVENTING CHILD MALTREATMENT, supra note 114, at 179.
120. Pelton, supra note 97, at 131.
121. Id. at 137.
122. Isabel Wolock & Bernard Horowitz, Child Maltreatment and Material Deprivation among AFDC Families, 53 SOC. SERV. REV. 175
(1979).
123. Pelton, supra note 97, at 149–50.
124. Id. at 145–47.
125. ABCAN, supra note 3, at 21–22 (emphasis and footnotes omitted).
126. Pelton, supra note 120, at 132–42.
127. Id. at 154, and citations therein.

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 128. Id.
129. Id. at 155.
130. We cited, inter alia, Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation
for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT 1 (1994 supp.); Heather Allin et al, Treatment of Child Neglect: A
Systemic Review, 50 CAN. J. PSYCHIATRY 497 (2005); Catherine Marneffe, Child Abuse Treatment: A Fallow Land, 20 CHILD ABUSE &
NEGLECT 379, 379 (1996) (lamenting the lack of articles on treatment in CHILD ABUSE & NEGLECT); Anne H. Cohn & Deborah
Daro, Is Treatment Too Late?: What Ten Years of Evaluative Research Tells Us, 11 CHILD ABUSE & NEGLECT 433, 440 (1987).
131. We cited, inter alia, Judith V. Becker et al., Empirical Research on Child Abuse Treatment: Report by the Child Abuse and Neglect
Treatment Working Group, American Psychological Association, 24 J. CLINICAL CHILD PSYCHOL. 23, 36–37 (1994 supp.); Pelton, supra
note 97, at 159–66.
132. NRC I, supra note 2, at 255.
133. See generally id. at 256–78.
134. IOM/NRC II, supra note 2, at 247–48.
135. Readers interested in such a review would be well advised to consult the database of the California Evidence-Based Clearinghouse for
Child Welfare, available at http://www.cebc4cw.org.
136. Multisystemic therapy for child abuse and neglect (MST-CAN) provides such a framework. See, e.g., Cynthia Cupit Swenson et al,
Multisystemic Therapy for Child Abuse and Neglect: A Randomized Effectiveness Trial, 24 J. FAM. PSYCHOL. 497 (2010).
137. See Gary B. Melton, “Programs” Aren’t Enough, 37 CHILD ABUSE & NEGLECT 1 (2013 supp.).
138. See IOM/NRC, supra note 2, at 251–52 and 281, discussing Anthony P. Mannarino et al., Trauma-Focused Cognitive-Behavioral
Therapy for Children: Sustained Impact of Treatment 6 and 12 Months Later, 17 CHILD MALTREATMENT 231 (2012).
139. ABCAN, supra note 3, at 2, 9–11, and citations therein.
140. Id. at 9–10 (footnote omitted).
141. This differentiation is commonly known as “dual tracking.” See MO. REV. STAT. § 210.110 (2016) (differentiating between
“assessment” and “investigation”).
142. See, e.g., NEB. REV. STAT. § 28-728 (2015). See also MASS. DEP’T OF SOC. SERV., TASK FORCE ON
MULTIDISCIPLINARY ASSESSMENT, FINAL REPORT (Jan. 1996) (report to the Massachusetts Commissioner of Social Services).
143. See, e.g., NEB. REV. STAT. § 28-713 (2014).
144. See, e.g., Virginia Murphy-Berman, A Conceptual Framework for Thinking about Risk Assessment and Case Management in Child
Protective Services, 18 CHILD ABUSE & NEGLECT 193 (1994); Michael S. Wald & Maria Woolverton, Risk Assessment: The Emperor’s
New Clothes?, 69 CHILD WELFARE 483 (1990).
145. This problem may be alleviated by establishment of limitations on admission in criminal proceedings of information gathered for the
purpose of child protection and related services. See Murray Levine & Eric Doherty, The Fifth Amendment and Therapeutic Requirements to
Admit Abuse, 18 CRIM. JUST. & BEHAV. 98 (1991).
146. For a debate on the use of child interview specialists, see Paul Stern & Bill Walsh, Professional Exchange: The Role of Child Interview
Specialists, APSAC ADVISOR, Summer 1995, at 10.
147. ALASKA STAT. § 47.10.142 (2014).
148. 325 ILL. COMP. STAT. 5/5 (West 2016).
149. Id.; see also CAL. WELF. & INST. CODE §§ 319(a)–(d) (West 2015), stating that a child taken into protective custody shall be
released to the parents unless “the court finds that continuance in the parent’s or guardian’s home is contrary to the child’s welfare, and (1)
[t]here is a substantial danger to the physical health of the child or the child is suffering severe emotional damage, and there are no reasonable
means by which the child’s physical or emotional health may be protected without removing the child from the parent’s or guardian’s physical
custody; (2) [t]here is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court; (3) [t]he
child has left a placement in which he or she was placed by the juvenile court; [or] (4) [t]he child indicates an unwillingness to return home, if
the child has been physically or sexually abused by a person residing in the home.”
150. Kayla Bakshi & Darcy Katzin, Helping Child Victims and Witnesses Present Effective Testimony, 54(7) U.S. ATT’YS’ BULL. 42, 42–43
(Nov. 2006) (arguing that a child witness experiencing stress may be uncooperative on direct examination or vulnerable to the rigors of cross-
examination; may produce testimony that is unreliable or difficult to test with follow-up questions; or may refuse to answer questions at all,
provide vague or incomplete answers, or give false or misleading responses).
151. For an overview of these laws and their implementation, see DEBRA WHITCOMB, WHEN THE VICTIM IS A CHILD (2d ed.
1992). For more recent developments, see Frank E. Vandervort, Law and the Forensic Social Worker in Criminal Proceedings, 3 J. FORENSIC
SOC. WORK 150 (2013).
152. See Gail Goodman et al., Innovations for Child Witnesses: A National Survey, 5 PSYCHOL. PUB. POL’Y & L. 255, 270 (1999).

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 153. See Emma Antrobus et al., Mode of Children’s Testimony and the Effect of Assumptions about Credibility, 23 PSYCHIATRY
PSYCHOL. & L. 922 (2016) (finding that stereotypes about children’s memory had more influence on juror perceptions when testimony was
presented via closed-circuit TV and was prerecorded); Katherine J. Bennett, Legal and Social Issues Surrounding Closed Circuit Testimony of
Child Victims and Witnesses, 8 J. AGGRESSION MALTREATMENT & TRAUMA 233 (2008) (reporting research suggesting that special
procedures might produce a pro-defense bias).
154. Melton et al., supra note 58, at 47–48. A LexisNexis search conducted on April 3, 2007, found the language “sex(ual) abuse” or “incest”
in almost 900 reported cases in state courts in California, New York, and Texas alone, and in almost 1,000 reported cases in the federal courts
nationwide.
155. Maryland v. Craig, 497 U.S. 836 (1990); Coy v. Iowa, 487 U.S. (1988); Kentucky v. Stincer, 482 U.S. 730 (1987); Globe Newspaper
Co. v. Superior Ct., 457 U.S. 596 (1982). See also Idaho v. Wright, 497 U.S. 805 (1990) (considering the admissibility of an allegedly abused
child’s hearsay statements).
156. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (articulating the doctrine of strict scrutiny of intrusions on rights
expressly or impliedly guaranteed by the Constitution).
157. See Mark A. Small & Gary B. Melton, Evaluation of Child Witnesses for Confrontation by Criminal Defendants, 25 PROF.
PSYCHOL.: RES. & PRAC. 228, 229 (1994), and citations therein. The American Psychological Association’s brief in Maryland v. Craig,
497 U.S. 836 (1990), was written largely by a team of psychologists (principally Gail S. Goodman, Murray Levine, and Gary B. Melton, with
assistance by counsel David W. Ogden) and was subsequently published at 15 LAW & HUM. BEHAV. 13 (1990).
158. 497 U.S. 836 (1990).
159. Id. at 855.
160. Id.
161. Id. at 856.
162. Id.
163. Id. at 860 (citation omitted).
164. Id. at 856.
165. Id.
166. Id.
167. See, e.g., NEB. REV. STAT. § 29-1926 (2014); see also State v. Parker, 757 N.W.2d 7, 18 (Neb. 2008) (finding statute constitutional
on the ground that protecting children from “psychological harm” is a compelling state interest) (citing Craig).
168. See Small & Melton, supra note 157, at 230. The application of Craig is also unclear in states that have confrontation clauses appearing
to be more restrictive than the Sixth Amendment to the U.S. Constitution. See Mark A. Small, Constitutional Challenges to Child Witness
Protection Legislation: An Update, 9 VIOLENCE & VICTIMS 369 (1994) (discussing the application of Craig to state constitutional
provisions requiring face-to-face confrontation).
169. Small & Melton, supra note 157, at 232 (citation omitted).
170. Id.
171. Melton et al., supra note 58, at 68 (citations omitted).
172. Gary B. Melton, Children as Partners for Justice: Next Steps for Developmentalists, 57 MONOGRAPHS SOC’Y FOR RES. CHILD
DEV. (Serial No. 229) at 153, 157 (1992), discussing Gail S. Goodman et al., Testifying in Criminal Court, 57 MONOGRAPHS SOC’Y FOR
RES. CHILD DEV. (Serial No. 229), at 1 (1992).
173. Id.
174. Judy Cashmore, The Use of Closed-Circuit Television for Child Witnesses in the ACT (report to the Australian Law Reform Commission,
Oct. 1992).
175. Helen L. Westcott & Graham M. Davies, Sexually Abused Children’s and Young People’s Perspectives on Investigative Interviews
(unpublished manuscript, Public Policy Department, National Society for Prevention of Cruelty to Children, London, England, 1994).
176. Gail S. Goodman et al., Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children’s Eyewitness Testimony and Jurors
Decisions, 22 LAW & HUM. BEHAV. 165, 197–98 (1998).
177. See Kirsten Hanna et al., Questioning Child Witnesses: Exploring the Risks and Benefits of Intermediary Models in New Zealand, 20
PSYCHIATRY PSYCHOL. & L. 527 (2013).
178. See Small & Melton, supra note 157, at 231.
179. See Melton et al., supra note 58, at 62–66, and citations therein. See generally Gary B. Melton, Children as Legal Actors, in
HANDBOOK OF PSYCHOLOGY AND LAW 275 (Dorothy K. Kagehiro & William S. Laufer eds., 1991) (discussing children’s
competence and experience in various legal roles, including the role of witness).
180. See Josephine Bulkley, Recent Supreme Court Decisions Ease Child Abuse Prosecutions: Use of Closed-Circuit Television and Children’s

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Statements of Abuse under the Confrontation Clause, 16 NOVA L. REV. 687, 689–90 (1992). For an overview of issues regarding the use of
hearsay, unconventional means of eliciting children’s statements, and related expert testimony, see JOHN E.B. MYERS, MYERS ON
EVIDENCE IN CHILD, DOMESTIC AND ELDER ABUSE CASES (rev. ed. 2005).
181. For a primer on these grounds, see MYERS, supra note 12, at 33–52.
182. See Idaho v. Wright, 497 U.S. 805 (1990); Ohio v. Roberts, 448 U.S. 56 (1980) (overruled by Crawford v. Washington, 541 U.S. 36
(2004)).
183. Crawford v. Washington, 541 U.S. 36 (2004).
184. Id. at 68.
185. Stephanie McMahon, The Turbulent Aftermath of Crawford v. Washington: Where Do Child Abuse Victims’ Statements Stand?, 33
HASTINGS CONST. L.Q. 361, 382 (2006).
186. Davis v. Washington, 547 U.S. 813, 822 (2006).
187. United States v. Peneaux, 432 F.3d 882 (8th Cir. 2005); Dave Gordon, Is There an Accuser in the House?: Evaluating Statements Made
to Physicians and Other Medical Personnel in the Wake of Crawford v. Washington and Davis v. Washington, 38 N.M. L. REV. 529 (2008).
188. State v. Buda, 949 A.2d 761, 788–89 (N.J. 2008).
189. State v. Beadle, 265 P.3d 863 (Wash. 2011).
190. Crawford v. Washington, 541 U.S. at 68 (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to
afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from
Confrontation Clause scrutiny altogether”).
191. Validity, Construction and Application of Child Hearsay Statutes, 71 A.L.R. 5th 637, §§ 6.8-8(b) (2015).
192. Lindsay C. Malloy et al., Filial Dependency and Recantation of Child Sexual Abuse Allegations, 46 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 162, 164–65 (2007) (finding that adults were more likely to recant than children, and finding no
relationship between recanting and falsity). Another study estimated that the base rate for false reports of abuse made by children ranged from 2
to 33%. See generally Edwin J. Mikkelsen et al., False Sexual Abuse Allegations by Children and Adolescents: Context Factors and Clinical
Subtypes, 45 AM. J. PSYCHOTHERAPY 556 (1992).
193. Randy K. Otto et al., Testimonial Capacity, in HANDBOOK OF FORENSIC ASSESSMENT: PSYCHOLOGICAL AND
PSYCHIATRIC PERSPECTIVES 188 (Eric Y. Drogin et al. eds., 2011).
194. Bulkley et al., supra note 12, at 271, 288–89. See also Jane Dever Prince, Competency and Credibility: Double Trouble for Child Victims
of Sexual Offenses, 9 SUFFOLK J. TRIAL & APP. ADV. 113, 114–117 (2004).
195. See Melton et al., supra note 58, at 57–60; Karen J. Saywitz & Gail S. Goodman, Interviewing Children In and Out of Court, in APSAC
HANDBOOK, supra note 12, at 297.
196. MYERS, supra note 12, at 53.
197. Id. at 52–54.
198. FED. R. EVID. 803(4). See, e.g., Webb v. Lewis, 33 44 F.3d 1079, 1390 (9th Cir. 1994) (finding that this exception did not apply in a
child witness case).
199. FED. R. EVID. 803(2)–(3). See, e.g., United States v. Harrison, 296 F.3d 994 (10th Cir. 2002) (applying this exception in a child
witness case).
200. FED. R. EVID. 807.
201. John E.B. Myers, the leading proponent of liberal use of mental health professionals’ opinions on the case in chief in child maltreatment
cases (see infra note 204), has flatly rejected testimony that directly focuses on the child’s credibility: “All U.S. courts agree that expert witnesses
are not to comment directly on the credibility of individual children or on the credibility of sexually abused children as a group. Thus, expert
witnesses should not say that a child told the truth or was believable when describing abuse.” John E.B. Myers, Expert Testimony, in APSAC
HANDBOOK, supra note 12, at 319, 335–36.
202. State v. Milbradt, 756 P.2d 620, 624 (Or. 1988).
203. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). See also, e.g., Buford v. State, 368 Ark. 87, 243 S.W.3d 300 (2006) Hester v.
Commonwealth, 734 S.W.2d 457 (Ky. 1987); Com. v. Trowbridge, 636 N.E.2d 291 (Mass. App. Ct. 1994), aff’d, 647 N.E.2d 413 (Mass.
1995); State v. Chul Yun Kim, 350 S.E.2d 347 (N.C. 1986); State v. Buchholtz, 841 N.W.2d 449 (S.D. 2013). But see State v. Kim, 645 P.2d
1330 (Haw. 1982).
204. See, e.g., John E.B. Myers et al., Expert Testimony in Child Sexual Abuse Litigation, 68 NEB. L. REV. 1 (1989); APSAC,
GUIDELINES FOR PSYCHOSOCIAL EVALUATION OF SUSPECTED SEXUAL ABUSE IN YOUNG CHILDREN (1990)
[hereinafter APSAC GUIDELINES]. Although the APSAC GUIDELINES, id. at 6, indicate that mental health professionals “may directly
state that abuse did or did not occur,” they also state flatly that “[t]he evaluator should take care to communicate that mental health
professionals have no special ability to detect whether an individual is telling the truth.”

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 205. See Gary B. Melton, Doing Justice and Doing Good: Conflicts for Mental Health Professionals, FUTURE OF CHILDREN,
Summer/Fall 1994, at 102, 117 nn.60–61.
206. Lois B. Oberlander, Psycholegal Issues in Child Sexual Abuse Evaluations: A Survey of Forensic Mental Health Professionals, 19 CHILD
ABUSE & NEGLECT 475 (1995).
207. Across the United States, there are nearly 40 professional classifications named in child abuse reporting laws, and numerous states now
encompass “any person” within the scope of the statutes. See JILL GOODMAN ET AL., U.S. DEP’T OF HEALTH & HUMAN
SERVICES, A COORDINATED RESPONSE TO CHILD ABUSE AND NEGLECT: THE FOUNDATION FOR PRACTICE 61
(2003), available at http://files.eric.ed.gov/fulltext/ED474857.pdf.
208. For elaboration on our view on this and other uses of expert testimony in child abuse cases, see Gary B. Melton & Susan Limber,
Psychologists’ Involvement in Cases of Child Maltreatment, 44 AM. PSYCHOLOGIST 1225 (1989) (policy statement of the American
Psychological Association Division of Child, Youth, and Family Services).
209. See Mark S. Brodin, Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic, 73 U. CIN. L. REV. 867 (2005); Dyane
L. Noonan, Where Do We Go from Here?: A Modern Jurisdictional Analysis of Behavioral Expert Testimony in Child Sexual Abuse Prosecutions,
38 SUFFOLK U. L. REV. 493 (2005). For a decision that expresses relative receptivity to “battered-child syndrome” evidence, while at the
same time rejecting its relevance to the case at hand, see State v. Smullen, 844 A.2d 429 (Md. 2004).
210. For a general review of the law and the science, see DAVID FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE ch. 13
(2016–17).
211. Michael E. Lamb, The Investigation of Child Sexual Abuse: An Interdisciplinary Statement, 3(4) J. CHILD SEXUAL ABUSE 93, 97
(1994).
212. See, e.g., Alison Maddocks et al., Detecting Child Sexual Abuse in General Practice: A Retrospective Case–Control Study from Wales,
17(4) SCANDINAVIAN J. PRIMARY HEALTH CARE 210 (1999).
213. Myers, supra note 201, at 327–30, presents a useful visual depiction of the base rate problem. He partially misses its import, however, by
subsequently focusing on sexualized behaviors—the symptoms that are most disproportionately common among sexually abused children. Id. at
330–332. Because a large proportion of a small population may be smaller than a small proportion of a large population, and because sexualized
behaviors are exhibited by only a minority of the sexually abused population, the base rate problem still applies. See Angela Browne & David
Finkelhor, Initial and Long-Term Effects: A Review of the Research, in A SOURCEBOOK ON CHILD SEXUAL ABUSE 143, 151 (David
Finkelhor ed., 1986). Indeed, the example given is a wonderful illustration of why syndrome evidence is inherently misleading and prejudicial.
214. See, e.g., United States v. Nation, 543 F. Appx. 677 (9th Cir. 2013); State v. Favoccia, 51 A.3d 1002 (Conn. 2012); Steward v. State,
652 N.E.2d 490 (Ind. 1995); Sanderson v. Commonwealth, 291 S.W.3d 610 (Ky. 2009); State v. J.Q., 617 A.2d 1196 (N.J. 1993).
215. See, e.g., Estelle v. McGuire, 502 U.S. 62 (1991); State v. Moyer, 727 P.2d 31 (Ariz. App. 1986); State v. Dumlao, 491 A.2d 404
(Conn. App. 1987); Price v. Comm’r, 446 S.E.2d 642 (Va. App. 1994).
216. See generally Carole Jenny, Medical Issues in Sexual Abuse, in APSAC HANDBOOK, supra note 12, at 206.
217. 310 N.W.2d 58 (Minn. 1981).
218. See FED. R. EVID. 404.
219. 310 N.W.2d at 64.
220. See, e.g., Russell v. State, 934 P.2d 1335 (Alaska App. 1997); Haakanson v. State, 760 P.2d 1030 (Alaska App. 1988); People v.
Walkey, 177 Cal. App. 3d 268 (1986); People v. Lucero, 724 P.2d 1374 (Colo. App. 1986); Sanders v. State, 303 S.E.2d 13 (Ga. 1983); State
v. Barney, 2013 WL 6860726 (N.M. 2013); State v. Pulizzano, 456 N.W.2d 325 (Wis. 1990). These cases are criminal cases in which the state
attempted to introduce evidence of battering-parent syndrome—efforts rejected by the courts. Such evidence is admissible if a defendant
introduces his or her character in an effort to show it was unlikely that the defendant engaged in the charged conduct. Otherwise, the courts
invariably view the proffered evidence as highly prejudicial.
221. See FED. R. EVID. 403.
222. The burden is in effect shifted to the defendant, who must convince the jury that he or she is one of the X% of persons with the
defendant’s characteristics who is not a battering parent.
Although the potential use of character evidence to inculpate defendants has received the greatest attention, defense attorneys do occasionally
try to admit behavioral science testimony as character evidence designed to suggest that a defendant with certain characteristics would be
unlikely or perhaps even psychologically unable to offend against children. The lack of strong psychological traits that correlate with child
maltreatment [see § 15.03(d)(1)] means that evidence on this point, if presented accurately, is unlikely to assist either the defendant or the
factfinder. Notably, the search for a profile of those who commit child sexual abuse has been largely futile. William D. Murphy & Timothy A.
Smith, Sex Offenders against Children: Empirical and Clinical Issues, in APSAC HANDBOOK, supra note 12, at 175, 177. Accordingly, courts
have been reluctant to admit testimony by defense experts on offender profiles. Myers, supra note 201, at 336.
223. 42 U.S.C. § 675(5)(B) (2012).

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 224. The Adoption Assistance and Child Welfare Act of 1980, as amended, requires states to make “reasonable efforts” to return each foster
child to his or her biological or adoptive family. 42 U.S.C. § 671(a)(15) (2012).
225. See DONALD T. KRAMER, LEGAL RIGHTS OF CHILDREN 96 (2d ed. 1994) (noting the difficulty of “clearly isolating
[disposition] as a separate and distinct part of a case”).
226. See, e.g., S.C. CODE ANN. § 20-7-762 (2016) (providing that the family court must review and approve a CPS-prepared dispositional
plan indicating “any changes in parental behavior or home conditions that must be made and any services which will be provided to the family
to ensure, to the greatest extent possible, that the child will not be endangered”).
227. See supra notes 223–24. But see Suter v. Artist M., 503 U.S. 347 (1992) (holding that Congress did not create an enforceable private
right of action to force reasonable efforts by the state; instead, states are required only to develop a plan for each effort that is approved by the
Secretary of Health and Human Services).
228. E.g., MASS. GEN. LAWS ANN. ch. 119 § 29B (2013).
229. 42 U.S.C. § 671(a)(15) (2012).
230. See, e.g., STANDARDS, supra note 17, § 8.2; MODEL STATUTE FOR TERMINATION OF PARENTAL RIGHTS § 12(1)
(Nat’l Council of Juvenile & Fam. Ct. Judges) [hereinafter MODEL STATUTE], reprinted in WALTER J. WADLINGTON ET AL.,
CHILDREN IN THE LEGAL SYSTEM 789 (1983).
231. E.g., LA. STAT. ANN. ch. C. art. 1004.1 (2015).
232. E.g., N.Y. FAM. CT. ACT §§ 622, 623, & 625 (McKinney 2015) (distinguishing between “fact-finding” and “dispositional” hearings).
233. The difficulty of the issue is reflected in the Supreme Court’s seemingly conflicting decisions in Santosky v. Kramer, 455 U.S. 745
(1982) (stating that termination of parental rights requires clear and convincing evidence), and Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18
(1981) (finding that there is no right to counsel in such proceedings). See Douglas Besharov, Terminating Parental Rights: The Indigent Parent’s
Right to Counsel after Lassiter v. North Carolina, 15 FAM. L.Q. 205 (1981).
234. E.g., In re Christina M., 877 A.2d 941 (Conn. 2005); In re C.M., 48 A.3d 942 (N.H. 2012).
235. 455 U.S. at 764.
236. NEB. REV. STAT. § 43-292(4) (West 2016).
237. Id. at § 43-292(5).
238. MODEL STATUTE, supra note 230, § 12(1).
239. Id. at §§ 12(1), 12(2).
240. E.g., id. at § 12(3).
241. VA. CODE ANN. § 16.1-283(B)(2)(c) (West 2015).
242. E.g., N.Y. SOC. SERV. LAW § 384-b(7)(a) (McKinney 2015).
243. Howard A. Davidson, Improving the Judicial Handling of Civil Child Maltreatment Cases, in FAMILIES IN COURT 63, 79 (Meredith
Hofford ed., 1989).
244. Id. at 78–80.
245. In the initiative undertaken by the Edna McConnell Clark Foundation for child protection reform, demonstration programs often drew
from domestic violence programs and routinely developed safety plans for families. The innovation, consistent with the notion that isolation is a
critical factor in the causation and recurrence of child maltreatment [see § 15.03(d)(2)], was that community members (“natural helpers”) often
joined in community safety agreements in which they agreed to offer support and/or monitoring and parents agreed to cooperate in the plan,
ratified by CPS. Patricia Schene, Remarks to a Study Group Supported by the Edna McConnell Clark Foundation and Conducted by the Institute
for Families in Society, University of South Carolina (Oct. 4, 1996).
246. Id.
247. See MARK HARDIN, FAMILY GROUP CONFERENCES IN CHILD ABUSE AND NEGLECT CASES: LEARNING
FROM THE EXPERIENCE OF NEW ZEALAND (1996); Gary B. Melton, Foreign Innovations in Dispute Resolution in Matters Related
to Juvenile Justice and Child Protection (report to the Committee on Family Relations, 2020 Vision Project, Judicial Council of California, Oct.
1992) (discussion primarily of the New Zealand family group conferences and the Scottish hearing system).
248. See, e.g., Robert Victor Wolf, Promoting Permanency: Family Group Conferencing at the Manhattan Family Treatment Court, 4 J.
CENTER FOR FAMILIES CHILDREN & CTS. 133 (2003); American Humane Association & FGDM Guidelines Committee,
Guidelines for Family Group Decision Making in Child Welfare (2010), available at
http://www.ucdenver.edu/academics/colleges/medicalschool/departments/pediatrics/subs/can/FGDM/what_is_FGDM/Documents/FGDM%20Guidelines.pdf.
249. Like a few other United States jurisdictions, Nebraska has explicit statutory authority for mediation in child protection cases. NEB.
REV. STAT. § 43-247.04 (2014). The Nebraska program may be clouded, however, by the fact that the agency responsible for contracting
with mediators (i.e., the Department of Health and Human Services) also is the entity that represents the state in civil child protection matters.
For examples of other programs for mediation of child protection cases, see, e.g., Kelly Browe Olson, Lessons Learned from a Child Protection

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Mediation Program: If at First You Succeed and Then You Don’t . . . , 41 FAM. CT. REV. 480 (2003); Jane Maresca, Mediating Child Protection
Cases, 74 CHILD WELFARE 31 (1995); Margaret Shaw & W. Patrick Phear, Innovation in Dispute Resolution: Case Status Conferences for
Child Protection and Placement Proceedings in the State of Connecticut, 29 FAM. & CONCILIATION CTS. REV. 270 (1991).
250. Special Issue, Mediation and Conferencing in Child Protection Disputes, 47 FAM. CT. REV. 1 (Bernie Mayer & Kelly Browe Olson
eds., 2009).
251. Nancy Thoennes, What We Know Now: Findings from Dependency Mediation Research, 47 FAM. CT. REV. 21 (2009). Most of the 16
studies involved programs that were newly established. Id. at 23. Few involved true experiments (random assignment to mediation or a
comparison condition), but many did include comparisons with ordinary dependency court proceedings. Id. at 22.
252. Id. at 22.
253. Id. at 29.
254. Id. at 30.
255. Id. at 30–31.
256. Id. at 31–32.
257. Id. at 32–33.
258. Id. at 33–35.
259. Association of Family and Conciliation Courts (AFCC), Guidelines for Child Protection Mediation, 51 FAM. CT. REV. 605 (2013).
260. Id. at 611–12.
261. Id. at 614–16.
262. See, e.g., Alsager v. District Ct., 406 F. Supp. 10 (S.D. Iowa 1975), aff’d, 545 F.2d 1137 (8th Cir. 1976) (same) (finding that a statute
permitting termination on grounds of “unfitness” is unconstitutionally vague); Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976) (same); Davis
v. Smith, 583 S.W.2d 37 (Ark. 1979); Linn v. Linn, 286 N.W.2d 765 (1980) (same). There is a plausible argument that statutes providing for
termination on the ground of unfitness resulting from “mental illness” are void for vagueness unless there is a further definition. Cf.
Developments in the Law: Civil Commitment of the Mentally Ill, 87 HARV. L. REV. 1190, 1253–58 (1974) (analyzing use of “mental illness” as
the statutory threshold for civil commitment).
263. The courts do not require that the child suffer actual harm before parental rights can be terminated. See, e.g., In re Appeal in Maricopa
Cnty. Juvenile Action No. JS-501568, 869 P.2d 1224 (Ariz. App. 1994) (mother’s minimal efforts to engage in drug treatment during the first
year of her child’s out-of-home placement did not preclude a finding that she had been negligent in remediating the conditions leading to the
placement); Ozuna v. Ark. Dep’t of Human Serv., 466 S.W.3d 434 (Ark. Ct. App. 2008) (mother did not complete parenting classes, had not
gained stable housing or employment, had not maintained regular contact with her children, and had not participated in counseling as
recommended); In re Doe Children, 90 P.3d 276 (Haw. App. 2004) (parent failed to comply with service plans and to demonstrate an ability to
stay drug-free); State ex rel. Dep’t of Hum. Serv. v. Parmentier, 127 P.3d 652 (Or. Ct. App. 2006) (mother failed to complete drug and alcohol
treatment); In re Doe, 333 P.3d 125 (Idaho 2014) (no requirement of actual harm, but requirement of some evidence that termination will
prevent harm); In re J.P., 633 N.E.2d 27 (Ill. App. 1994); In re T.J.O., 527 N.W.2d 417 (Iowa App. 1994) (relying on the facts that the parents
had not addressed their substance abuse and relationship problems, and the child had already bonded with foster parents); In re K.M.B., 883
S.W.2d 123 (Mo. App. 1994) (denying the need for medical evidence to show that the mother was an unfit parent who abused substances,
given her record of 13 failed attempts at treatment and the fact that one child had observed her taking drugs and another had been exposed to
drugs in utero); In re K.B., 801 N.W.2d 416 (N.D. 2011) (adjudication of neglect may be based on a potential risk of harm and not just actual
harm); S.C. Dep’t of Soc. Serv. v. Smith, 538 S.E.2d 285 (S.C. App. 2000) (mother failed to participate in treatment and/or refused
detoxification services and drug treatment and failed to provide support).
In cases involving parents with mental illness, the courts have focused on the parents’ difficulties in caring for their children. For example, the
Alabama Supreme Court upheld the termination of parental rights of parents with mental illness because they had not provided an adequate,
safe residence for their child. Ex parte State Dep’t Human Res., 624 So. 2d 589 (Ala. 1993). See also Claudio G. v. State, 2009 WL 1259353
(Ala. 2009); In re J.M.C., 741 A.2d 418 (D.C. App. 1999); E.C. v. District of Columbia, 589 A.2d 1245 (D.C. App. 1991) (stating that mental
illness by itself does not justify termination of parental rights, but its effects on the children can do so); In re Doe, 90 P.3d 276 (Haw. App.
2004) (alleged failure of child protection authorities to assist a mother with mental illness in complying with the court’s service plan did not
substantially prejudice mother); In re Nicole M., 844 N.W.2d 65 (Neb. 2014); In re Halley ZZ., 972 N.E.2d 87 (N.Y. 2012). Courts have
reached similar conclusions regarding parents with intellectual disabilities. See, e.g., Egly v. Blackford Cnty. Dep’t Pub. Welfare, 592 N.E.2d
1232 (Ind. 1992); In re B.H., 348 S.W.3d 770 (Mo. 2011); In re Halley ZZ., 972 N.E.2d 87 (N.Y. 2012); In re B.S., 693 A.2d 716 (Vt. 1997);
In re K.S., 2015 WL 1740259 (W. Va. 2015).
264. See, e.g., Jo Aldridge, The Experiences of Children Living with and Caring for Parents with Mental Illness, 15 CHILD ABUSE REV. 79
(2006); HENRY GRUNEBAUM ET AL., MENTALLY ILL MOTHERS AND THEIR CHILDREN (1975); Bertram Cohler et al.,
Disturbance of Attention among Schizophrenic, Depressed, and Well Mothers and their Children, 18 J. CHILD PSYCHOL. & PSYCHIATRY

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11, 115 (1977); Jo Adridge, The Experiences of Children Living with and Caring for Parents with Mental Illness, 15 CHILD ABUSE REV. 79
(2006); Carol Kauffman et al., Superkids: Competent Children of Psychotic Parents, 136 AM. J. PSYCHIATRY 11 (1979); Arnold Sameroff et
al., The Early Development of Children Born to Mentally Ill Women, in CHILDREN AT RISK FOR SCHIZOPHRENIA 482 (Norman W.
Watt et al. eds., 1983).
This literature is typified by findings that might be surprising to most people. For example, it might be expected that the greatest risk would
be incurred by children of parents with schizophrenia. If parents are behaving in ways that are out of touch with reality and are unable to form
relationships, it would be unsurprising to find that their children would suffer from the experience of unpredictability, deviant social norms in
their homes (in contrast to schools and neighborhoods), and emotional distance within their families. In fact, there is now a rather substantial
research literature indicating lower social competence, on the average, among children of parents with schizophrenia than among children of
parents without known mental illnesses. But their social competence is no lower than that of children of parents with other mental disorders
(e.g., depression), although one might expect these latter parents to provide a less deviant environment. Of still greater policy significance, the
differences between children of parents with schizophrenia and children of parents without mental illnesses tend to disappear when appropriate
controls are added for socioeconomic status.
Of course, socioeconomic status and similar factors may be in part the product of mental illness: “Marital discord, single-parent status, social
isolation, and poverty are also common among the mentally ill and, together, may represent equal or greater risk to children than the individual
risk of parental mental illness.” Corina Benjet, Evaluating the Parental Fitness of Psychiatrically Disordered Individuals: Advocating a
Functional–Contextual Analysis of Parenting, 17 J. FAM. PSYCHOL. 238, 242–43 (2003). In that context, “[t]he presence of a well other may
provide a control mechanism for maintaining parenting behavior within an acceptable range and provide children with added stability.” Id. at
247. Although coping with parental mental illness can never be easy, research on the effects of such a difficult circumstance on the development
of children gives added emphasis to the need to view parental competence as an elastic reality—not a fixed trait—that varies in the context of
actual and expectable social support, environmental danger, and individual child needs. See, e.g., Sherryl H. Goodman & Ian H. Gotlib, Risk for
Psychopathology in the Children of Depressed Mothers: A Developmental Model for Understanding Mechanisms of Transmission, 106
PSYCHOL. REV. 458, 471–75 (1999) (risk posed by maternal depression may be moderated—or aggravated—by father mental health, the
timing and course of the mother’s illness, and various child characteristics). Cf. Ann M. Connell & Sherryl H. Goodman, The Association
between Psychopathology in Fathers versus Mothers and Children’s Internalizing and Externalizing Behavior Problems: A Meta-Analysis, 128
PSYCHOL. BULL. 746 (2002) (parental gender and children’s ages interact in the impact of parental mental illness on children).
265. As Merikangas and Angst noted, “Familial aggregation [heightened risk] of depression may result from shared genes, common
environmental factors, or a combination thereof.” Kathleen Ries Merikangas & Jules Angst, The Challenge of Depressive Disorders in
Adolescence, in PSYCHOSOCIAL DISTURBANCES IN YOUNG PEOPLE: CHALLENGES FOR PREVENTION 131, 144 (Michael
Rutter ed., 1995) [hereinafter PSYCHOSOCIAL DISTURBANCES IN YOUNG PEOPLE].
266. See, e.g., Bruce E. Compas, Promoting Successful Coping during Adolescence, in PSYCHOSOCIAL DISTURBANCES IN YOUNG
PEOPLE, supra note 265, at 247, 252, 255–56, 260.
267. Carol T. Mowbray et al., Motherhood for Women with Serious Mental Illness: Pregnancy, Childbirth, and the Postpartum Period, 65 AM.
J. ORTHOPSYCHIATRY 21, 25 (1995).
268. Id. at 26.
269. See id. at 32–35.
270. Id. at 31.
271. Id. at 32.
272. See Carol Mowbray et al., Diversity of Outcomes among Adolescent Children of Mothers with Mental Illness, 12 J. EMOTIONAL &
BEHAV. DISORDERS 206, 207 (2004). Most of the research on children of parents with serious mental illness has focused on young
children, presumably under the hypothesis that a parent’s major mental disorder and the accompanying affective shallowness and mental
preoccupations would inhibit the development of an attachment between the parent and the child. It may be, however, that the most significant
effects occur later in development, when an abnormal style of information processing in the family might adversely affect a child’s ability to deal
with school tasks. See id.
273. Daphna Oyserman et al., When Mothers Have Serious Mental Health Problems: Parenting as a Proximal Indicator, 28 J.
ADOLESCENCE 442 (2005).
274. Given the relatively high stress and the social and economic challenges that accompany living with serious mental illness, it is
unsurprising that pregnancy is typically perceived as a crisis by women with such illness, and that they are at relatively high risk of postpartum
psychotic or depressive episodes. Mowbray et al., supra note 272, at 25–29. The hypothesis is plausible (but, as far as we are aware, unstudied)
that there are some risks to adult patients’ mental health—and, by extension, to their families’ well-being—when stressors that arise naturally in
the development of children (e.g., transition to junior high) occur.
275. Eliane Seigenthaler et al., Effect of Preventive Interventions in Mentally Ill Parents on the Mental Health of the Offspring: Systematic

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Review and Meta-Analysis, 51 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 8 (2012).
276. See Daphne E. Glaun & Patricia F. Brown, Motherhood, Intellectual Disability and Child Protection: Characteristics of a Court Sample,
24 J. INTELL. & DEV. DISABILITY 95 (1999).
277. See Marsha Mailick Seltzer et al., Life Course Impacts of Mild Intellectual Deficits, 110 AM. J. MENTAL RETARDATION 451
(2005).
278. Helen Leonard & Xingyan Wen, The Epidemiology of Mental Retardation: Challenges and Opportunities in the New Millennium, 8
MENTAL RETARDATION & DEV. DISABILITIES RES. REV. 117, 124 (2002).
279. Catherine Wade et al., Review of Parent Training Interventions for Parents with Intellectual Disability, 21 J. APPLIED RES. INTELL.
DISABILITIES 351 (2008) (finding, from a review of research, “reasonable evidence of the effectiveness of parent training for parents with
intellectual disability”).
280. See Noreen D’Souza, Genetics and Mental Retardation, in WHEN A PARENT I. MENTALLY RETARDED (Barbara Y. Whitman
& Pasquale J. Accardo eds., 1990).
281. Stephen Magura & Alexandre B. Laudet, Parental Substance Abuse and Child Maltreatment: Review and Implications for Intervention,
18 CHILDREN & YOUTH SERV. REV. 193, 194–195 (1996).
282. DAVID FINKELHOR, CHILD SEXUAL ABUSE: NEW THEORY AND RESEARCH 44 (1984); Glenace E. Edwall &
Norman G. Hoffman, Correlates of Incest Reported by Adolescent Girls in Treatment for Substance Abuse, in HANDBOOK ON SEXUAL
ABUSE OF CHILDREN 94, 98 (Lenore E.A. Walker ed., 1988) [hereinafter HANDBOOK ON SEXUAL ABUSE OF CHILDREN].
Although it is probably incorrect to say that alcohol abuse itself causes sexual abuse, disinhibition resulting from intoxication is often a
contributing factor. Moreover, there is little doubt that parental alcohol abuse is one of the many factors increasing the stress of children in
incestuous families. Indeed, alcohol abuse by nonoffending mothers is common in such families. Lorna P. Cammaert, Nonoffending Mothers, in
HANDBOOK ON CHILD SEXUAL ABUSE OF CHILDREN, supra, at 309, 312.
283. Theodore Jacob et al., The Alcoholic’s Spouse, Children and Family Interactions: Substantive Findings and Methodological Issues, 39 J.
STUDIES ON ALCOHOL 1231 (1978).
284. GEORGE VAILLANT, THE NATURAL HISTORY OF ALCOHOLISM 65 (1983).
285. Robert J. Rotunda et al., Family Systems and Alcohol Misuse: Research on the Effects of Alcoholism on Family Functioning and Effective
Family Interventions, 26 PROF. PSYCHOL.: RES. & PRAC. 95 (1995).
286. Id. at 95.
287. See, e.g., A.M. Hussong et al., Externalizing Symptoms among Children with Alcoholic Parents: Entry Points for an Antisocial Pathway to
Alcoholism, 116(3) J. ABNORMAL PSYCHOL. 529 (2007) (finding in two matched studies that “children with either an antisocial alcoholic
parent or 2 alcoholic parents were at greatest risk for externalizing symptoms”).
288. Rotunda et al., supra note 285, at 95–96.
289. Id. at 99. For an example of a failure to find significant differences in psychosocial functioning between adult children of alcoholic
parents and other adults, see Chris Segrin & Michelle Mize Menees, The Impact of Coping Styles and Family Communication on the Social Skills
of Children of Alcoholics, 57 J. STUDIES ON ALCOHOL 29 (1996). But see Melanie Chalder et al., Drinking and Motivations to Drink
among Adolescent Children of Parents with Alcohol Problems, 41 ALCOHOL & ALCOHOLISM 107 (2005) (finding more drinking problems
among children of parents with alcohol problems).
290. Rotunda et al., supra note 285, at 99.
291. See Polly E. Bijurr et al., Parental Alcohol Use, Problem Drinking, and Children’s Injuries, 267 JAMA 3166 (1992) (finding that child
injuries are more likely to occur among mothers with problem drinking, especially if they are married to men who also drink moderately or
heavily).
292. See Josephine Gittler, The American Drug War, Maternal Substance Abuse and Child Protection: A Commentary, 7 J. GENDER RACE
& JUST. 237 (2003).
293. See id. at 246–247. For a more recent overview of prenatal drug effects, drug-related problems of child care, and potential medical
responses, see Vincent C. Smith et al., Families Affected by Parental Substance Use, 138 PEDIATRICS e20161575 (2016) (report of the
American Academy of Pediatrics, Committee on Substance Use and Prevention).
294. See U.S. GEN. ACCOUNTING OFFICE (GAO), FOSTER CARE: PARENTAL DRUG ABUSE HAS ALARMING
IMPACT ON YOUNG CHILDREN (Report No. GAO/HEHS-94-89, Apr. 1994) (describing the impact of increased referrals to foster
care of children of drug-abusing parents).
295. Theresa Lawton Hawley et al., Children of Addicted Mothers: Effects of the “Crack Epidemic” on the Caregiving Environment and the
Development of Preschoolers, 65 AM. J. ORTHOPSYCHIATRY 364, 365–67 (1995). See also Harolyn M.E. Belcher, Spectrum of Early
Intervention Services for Children with Intrauterine Drug Exposure, 18 INFANTS & YOUNG CHILDREN 2 (2005).
296. See, e.g., Colleen D. Vaz, Cognitive Development in Methamphetamine Exposed and High-Risk Infants, 66 DISSERTATION

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ABSTRACTS INT’L: B. SCI. & ENGINEERING 5706 (2006).
297. Hawley et al., supra note 295, at 368–73.
298. Id. at 370. The magnitude of this disparity may have been an artifact of the referral pattern of the particular treatment program studied,
in that CPS was a principal source of referrals. Id. at 370–371.
299. Id. at 371–373.
300. E.g., Karen Street et al., Is Adequate Parenting Compatible with Maternal Drug Use? A Five-Year Follow-up, 34 CHILD: CARE
HEALTH & DEV. 204 (2008); Richard Barth & Barbara Needell, Outcomes for Drug-Exposed Children Four Years Post-Adoption, 18
CHILDREN & YOUTH SERV. REV. 37 (1996) (finding no difference between drug-exposed and non-drug-exposed children—at least as
categorized by their adoptive parents—in adoptive parents’ satisfaction and in most indicators of child development); Magura & Laudet, supra
note 281, at 198–200 (describing the environmental problems that often accompany parental drug abuse); Asher Ornoy et al., The
Developmental Outcome of Children Born to Heroin-Dependent Mothers, Raised at Home or Adopted, 20 CHILD ABUSE & NEGLECT 385
(1996) (stating that the environmental influence on child development is stronger than the effects of prenatal exposure to heroin).
301. SUBSTANCE ABUSE & MENTAL HEALTH SERVICES ADMIN., U.S. DEP’T OF HEALTH & HUMAN SERVICES,
RESULTS FROM THE 2015 NATIONAL SURVEY ON DRUG USE AND HEALTH: DETAILED TABLES 224 tbl. 1.21A (2015),
available at https://www.samhsa.gov/data/sites/default/files/NSDUH-DetTabs-2015/NSDUH-DetTabs-2015/NSDUH-DetTabs-
2015.htm#tab1-110b.
302. Melinda Hohman et al., Methamphetamine Abuse and Manufacture: The Child Welfare Response, 49(3) SOC. WORK 373, 376–377
(2004).
303. In a study comparing urban African American families in which children entered foster care because of parental drug abuse with those
in which children entered foster care for other reasons, poverty and housing problems were much more common factors in the former group.
CLARICE WALKER ET AL., PARENTAL DRUG ABUSE AND AFRICAN AMERICAN CHILDREN IN FOSTER CARE:
ISSUES AND STUDY FINDINGS 2 (1991).
304. Magura & Laudet, supra note 281, at 204. See also NAT’L COUNCIL OF JUVENILE AND FAM. CT. JUDGES, PROTOCOL
FOR MAKING REASONABLE EFFORTS TO PRESERVE FAMILIES IN DRUG-RELATED DEPENDENCY CASES (Jan. 1992)
(describing factors and options for juvenile and family court judges to consider in making dispositional decisions in child protection cases
involving parental drug abuse).
305. Mary Fran Flood, Innovative (and Successful) Programs: A Presentation for Rural Nebraska Communities on Program Options for
Helping Substance Using Pregnant Women and Parents 13–14 (1992) (unpublished manuscript, Center on Children, Families, and the Law,
University of Nebraska–Lincoln).
306. GAO, COCAINE TREATMENT: EARLY RESULTS FROM VARIOUS APPROACHES 2 (Report No. GAO/HEHS-96-80,
June 1996).
307. See, e.g., Joshua Miller, Should Marijuana Use Matter in Child Welfare Cases?, BOSTON GLOBE, Oct. 27, 2016, available at
https://www.bostonglobe.com/metro/2016/10/27/should-marijuana-use-matter-child-welfare-cases/e1nxygDVIzhle4fVqcW9iP/story.html;
Kristen Wyatt, Changing Pot Laws Create Gray Areas in Child-Welfare and Custody Cases, ASSOCIATED PRESS, June 15, 2014, available at
http://gazette.com/changing-marijuana-laws-prompt-child-endangerment-review/article/1521484.
308. Tonia Christine Stott & Nora Gustavson, The Legalization of Marijuana and Child Welfare, 61 SOC. WORK 369 (2016).
309. See Editorial Board, The Great Opioid Epidemic, WASH. POST, Dec. 11, 2016.
310. John Kamp & Arian Campo-Flores, Parents’ Drug Abuse Strains Child-Welfare Agencies, WALL ST. J., Jan. 12, 2016.
311. Katharine Q. Seelye, Addicted Parents Get Their Fix, Even with Children Watching, N.Y. TIMES, Sept. 27, 2016.
312. See generally Janet E. Findlater & Susan Kelly, Child Protective Services and Domestic Violence, 9(3) FUTURE OF CHILDREN 84
(1999).
313. See, e.g., Whitcomb v. Jefferson Co. Dep’t of Soc. Serv., 685 F. Supp. 745 (D. Colo. 1987).
314. Amy J. Saathoff & Elizabeth Ann Stoffel, Community-Based Domestic Violence Services, 9(3) FUTURE OF CHILDREN 97, 99–100
(1999).
315. See id. for a description of the country’s 2,000 community-based domestic violence programs.
316. David Finkelhor et al., The Victimization of Children and Youth: A Comprehensive, National Study, 10 CHILD MALTREATMENT
5 (2005).
317. See, e.g., E. Mark Cummings, Children Exposed to Marital Conflict and Violence: Conceptual and Theoretical Perspectives, in
CHILDREN EXPOSED TO MARITAL VIOLENCE: THEORY, RESEARCH, AND APPLIED ISSUES 35 (George W. Holden et al.
eds., 1998) [hereinafter MARITAL VIOLENCE]; John W. Fantuzzo & Wanda K. Mohr, Prevalence and Effects of Child Exposure to
Domestic Violence, 9(3) FUTURE OF CHILDREN 21, 26–29 (1999); Sandra A. Graham-Berman, The Impact of Woman Abuse on
Children’s Social Development: Research and Theoretical Perspectives, in MARITAL VIOLENCE, supra, at 21; Timothy E. Moore & Debra J.

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Pepler, Correlates of Adjustment in Children at Risk, in MARITAL VIOLENCE, supra, at 157; Joy Osofsky, The Impact of Violence on
Children, 9(3) FUTURE OF CHILDREN 33 (1999); see also Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The
Use and Abuse of Child Maltreatment, 53 HASTINGS L.J. 1, 6 n.3 (2001) (providing a list of summaries of the empirical research on the
effects of intimate-partner violence on children).
318. Although the risk of emotional disturbance among children exposed to intimate-partner violence is substantially higher than among
children of a similar social background, about three-fifths of children living in shelters for abused women show few behavioral symptoms
(mostly mild anxiety). Honore M. Hughes & Douglas A. Luke, Heterogeneity in Adjustment among Children of Battered Women, in
MARITAL VIOLENCE, supra note 317, at 185, 198–99. Just as the difficulty experienced by a substantial percentage of children exposed to
intimate-partner violence is cause for attention to the problem by public authorities, the resilience that many other children demonstrate in the
face of such terrible circumstances is reason for pause before mandating intervention designed to protect them. Otherwise, functioning sources
of support to the children can be disrupted.
319. Weithorn, supra note 317, at 12–26. See also Nancy K.D. Lemon, The Legal System’s Response to Children Exposed to Domestic
Violence, 9(3) FUTURE OF CHILDREN 67 (1999); Martha A. Matthews, The Impact of Federal and State Laws on Children Exposed to
Domestic Violence, 9(3) FUTURE OF CHILDREN 50 (1999) (discussing challenges for and because of the legal system in responding to the
needs of families affected by intimate-partner violence, and the legal system innovations that have resulted).
320. Weithorn, supra note 317, at 12–16 and citations therein.
321. Id. at 16–19 and citations therein.
322. Id. at 19–21.
323. E.g., ALASKA STAT. § 47.10.011(8)(B) (2014); FLA. STAT. ANN. § 39.301(8)(b) (West 2016).
324. E.g., GA. CODE ANN. § 16-5-70(c) (West 2015); UTAH CODE ANN. § 76-5-109.1(2) (West 2015).
325. E.g., CONN. GEN. STAT. § 17a-106b (2015); KY. REV. STAT. ANN. § 620.023(1) (West 2016).
326. See Weithorn, supra note 317, at 104–09.
327. See id. at 22–23.
328. Id. at 23.
329. ABCAN, CHILD ABUSE AND NEGLECT, supra note 10, at 31.
330. Id. at 2.
331. Of course, the problem of negative effects of well-intentioned policies is one that plagues child protection policy in general. See, e.g.,
Melton, supra note 7 (discussing the erroneous assumptions underlying mandated reporting laws, and the catastrophic effects that such mistakes
have had over the long term on the child protection system). Such issues are now discussable in the child protection field, even if policy remains
stuck in a dysfunctional mode. Id. at 575.
The problem of intimate-partner violence was “discovered” later than that of child maltreatment, and research on the problem has not
progressed as far. Id. at 575–76. Hence there may be even more reason to be concerned about proceeding in policy development without a
verified factual foundation. In that regard, the inconsistent findings in regard to the effects on women’s and children’s safety as a result of legal
restraints (e.g., civil protection orders; mandated arrest) on allegedly abusive men (see id. at 576 and citations therein) are especially troubling,
given the frequency with which such measures are taken, the faith placed in them, and the seriousness of the interests at stake.
332. Carla S. Stover et al., The Effects of Father Visitation on Preschool-Aged Witnesses of Domestic Violence, 18 J. INTERPERS.
VIOLENCE 1149 (2003).
333. George W. Holden et al., Parenting Behaviors and Beliefs of Battered Women, in MARITAL VIOLENCE, supra note 317, at 289,
326.
334. Id. at 325–26 (“no evidence was found to indicate that [the mothers in shelters for abused women] were less affectionate, less proactive,
less likely to provide structure for the child[ren], or more punitive”).
335. Elizabeth I. Johnson & Jane Waldfogel, Parental Incarceration: Recent Trends and Implications for Child Welfare, 76 SOC. SERV.
REV. 464 (2002).
336. JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 119 (2005).
337. ARLENE F. LEE ET AL., THE IMPACT OF THE ADOPTION AND SAFE FAMILIES ACT ON CHILDREN OF
INCARCERATED PARENTS 2 (2005).
338. Christopher J. Mumola, Incarcerated Parents and Their Children (Bureau of Justice Statistics Special Report No. NCJ 182335, Aug.
2000), available at https://www.bjs.gov/content/pub/pdf/iptc.pdf.
339. See JEREMY TRAVIS ET AL., FAMILIES LEFT BEHIND: THE HIDDEN COSTS OF INCARCERATION AND
REENTRY 2 (2003).
340. 42 U.S.C. § 675(5)(E) (2012).
341. PATRICIA E. ALLARD & LYNN D. LU, REBUILDING FAMILIES, RECLAIMING LIVES: STATE OBLIGATIONS TO

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CHILDREN IN FOSTER CARE AND THEIR INCARCERATED PARENTS iii (2006).
342. LEE ET AL., supra note 337, at 8.
343. 42 U.S.C. § 671(a)(15) (2012).
344. For state-by-state summaries of relevant statutes and case law, see LEE ET AL., supra note 337, at 79–364.
345. 42 U.S.C. § 675(5)(E)(ii) (2012).
346. ALLARD & LU, supra note 341, at 24.
347. E.g., CAL. WELF. & INST. CODE §§ 361.5(e)(1)(A)–(D) (West 2015).
348. ALLARD & LU, supra note 341, at 22.
349. See, e.g., ANNE WALKER, HANDBOOK ON QUESTIONING CHILDREN 27–30 (1994).
350. James P. Gleeson & Lynn C. Craig, Kinship Care in Child Welfare: An Analysis of States’ Policies, 16 CHILDREN & YOUTH SERV.
REV. 7, 24 (1994). But see National Resource Center, Kinship Care, May, 2004, available at
http://kinkonnect.org/images/kinship_care_factsheet_2004.pdf (stating that “[a]ccording to the 2000 U.S. Census, nationally, there are 4.5
million children under the age of 18 living in grandparent-maintained households, and another 1.5 million children under 18 living in other
relative-maintained households”).
351. CWLA, KINSHIP CARE: A NATURAL BRIDGE 16 (1994) [hereinafter CWLA].
352. Am. Ass’n of Retired Persons, New York: A State Fact Sheet for Grandparents and Other Relatives Raising Children (2005), available at
https://assets.aarp.org/rgcenter/general/kinship_care_2005_ny.pdf.
353. CWLA, supra note 351, at 27.
354. See Mark Hardin, Sizing Up Welfare Reform’s Impact on Child Protection, 15 CHILD L. PRAC. 104, 104–05 (1996), discussing
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 5 (codified at 42 U.S.C. § 671(a)(18)
(2012)).
355. CWLA, supra note 351, at 13.
356. As noted infra, relatives who are caregivers typically are offered fewer resources than nonrelative foster parents are. In Miller v.
Youakim, 440 U.S. 125 (1979), the United States Supreme Court held that states cannot discriminate against kinship care providers under the
federal foster care program (Title IV-E of the Social Security Act). Denial of state-financed foster care payments to kinship care providers,
however, was upheld in subsequent cases. See Lipscomb v. Simmons, 962 F.2d 1374 (9th Cir. 1992); D.O. v. Beshear, 2016 WL 1171532
(E.D. Ky. 2016); King v. McMahon, 230 Cal. Rptr. 911 (1986). But see Healthstar Home Health, Inc., v. Jesson, 827 N.W.2d 444 (Minn. Ct.
App. 2012) (finding that less funding for kinship care providers than for nonrelative care providers violates equal protection).
357. Gleeson & Craig, supra note 350, at 28.
358. CWLA, supra note 351, at 17–18; Daniel Webster et al., Placement Stability for Children in Out-of-Home Care: A Longitudinal
Analysis, 79 CHILD WELFARE 614, 624–626 (2000).
359. Howard Dubowitz et al., A Profile of Kinship Care, 72 CHILD WELFARE 153 (1993).
360. Id. at 159. Similarly, a survey of kinship care providers in California showed that most expected the children for whom they were caring
to live with them until they reached adulthood. Jill Duerr Berrick et al., A Comparison of Kinship Foster Homes and Foster Family Homes:
Implications for Kinship Foster Care as Family Preservation, 16 CHILDREN & YOUTH SERV. REV. 56–57 (1994).
361. Dubowitz et al., supra note 359, at 160–61.
362. Id. at 161.
363. Although adolescents in kinship care do not expect their relatives to support them, they (unlike youth in traditional foster homes) do
expect to be able to live with relatives. Alfreda P. Iglehart, Kinship Foster Care: Placement, Service, and Outcome Issues, 16 CHILDREN &
YOUTH SERV. REV. 107 (1994).
364. Dubowitz et al., supra note 359, at 160.
365. CWLA, supra note 351, at 35. With similar ambivalence, other commentators have noted that “[w]hen children are placed in kinship
foster care, the ultimate ‘permanency plan’ very often becomes long-term foster care and emancipation.” Jill Duerr Berrick & Richard P. Barth,
Research on Kinship Foster Care: What Do We Know? Where Do We Go from Here?, 16 CHILDREN & YOUTH SERV. REV. 1 (1994).
366. Howard Dubowitz et al., Children in Foster Care: How Do They Fare?, CHILDREN & YOUTH SERV. REV. 85 (1994).
367. CWLA, supra note 351, at 57.
368. Dubowitz et al., supra note 359, at 158; Berrick et al., supra note 360, at 42; Gleeson & Craig, supra note 350, at 10.
369. CWLA, supra note 351, at 57.
370. Id. at 49–50.
371. Id. at 44.
372. Id. at 63.
373. Nicole S. LeProhn, The Role of the Kinship Foster Parent: A Comparison of the Role Conceptions of Relative and Non-Relative Foster

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Parents, 16 CHILDREN & YOUTH SERV. REV. 65 (1994). This sense of responsibility carries over in most cases to assurance that siblings
can remain together. Dubowitz et al., supra note 359, at 161.
374. CWLA, supra note 351, at 18–19.
375. Berrick et al., supra note 360, at 49.
376. CWLA, supra note 351, at 18–19.
377. Berrick et al., supra note 360, at 49.
378. See Gary B. Melton, The Child’s Right to a Family Environment: Why Children’s Rights and Family Values Are Compatible, 51 AM.
PSYCHOLOGIST 1234 (1996) (discussing the right to a family environment, pursuant to the Convention on the Rights of the Child).
379. Berrick & Barth, supra note 365, at 4.
380. See supra notes 73–77 and accompanying text.
381. A study of more than 200 validated cases of sexual abuse in El Paso showed denial in only 6% and recantation in only 4% of cases of
disclosure. Ninety-six percent of the affected children made a partial or full disclosure during at least one interview with CPS or the police.
Child sexual abuse accommodation syndrome—a clinical description of recantation and other responses to sexual abuse—was rare. April R.
Bradley & James M. Wood, How Do Children Tell?: The Disclosure Process in Child Sexual Abuse, 20 CHILD ABUSE & NEGLECT 881
(1996). For commentary on this study, see David P.H. Jones, Gradual Disclosure by Sexual Assault Victims: A Sacred Cow?, 20 CHILD
ABUSE & NEGLECT 879 (1996).
382. See Melton et al., supra note 58, at 57–60, and citations therein.
383. Id. at 59–60.
384. Melton, supra note 172, at 154.
385. Id. at 301.
386. Saywitz & Goodman, supra note 195, at 297, 310–311. These recommendations were updated and elaborated in Karen J. Saywitz et al.,
Interviewing Children In and Out of Court: Current Research and Practice Implications, in THE APSAC HANDBOOK ON CHILD
MALTREATMENT 349 (John E.B. Myers et al. eds., 2d ed. 2002). For other practical guidance, see L. Dennison Reed, Findings from
Research on Children’s Suggestibility and Implications for Conducting Child Interviews, 1 CHILD MALTREATMENT 105 (1996).
387. Melton et al., supra note 58, at 66, and citations therein. Similar issues apply in regard to the suggestiveness of ordinary interviews.
Amye R. Warren et al., It Sounds Good in Theory, But . . . : Do Investigative Interviewers Follow Guidelines Based on Memory Research?, 1
CHILD MALTREATMENT 231 (1996).
388. Nancy W. Perry et al., When Lawyers Question Children: Is Justice Served?, 19 LAW & HUM. BEHAV. 609 (1995).
389. ANNE GRAFFAM WALKER, HANDBOOK ON QUESTIONING CHILDREN: A LINGUISTIC PERSPECTIVE (3d ed.,
2013) (available from the ABA Center on Children and the Law, 1050 Connecticut Ave. NW, Suite 400, Washington, DC 20036). See
generally Karen J. Saywitz et al., When Interviewing Children: A Review and Update, in ASPAC HANDBOOK ON CHILD
MALTREATMENT (J. Conte & B. Klika eds., 2017) (describing research on techniques for interviewing children).
390. U.S. Dep’t of Justice, Cognitive Interviewing, July/Aug. 1995, at 2. See also Amina Memon et al., The Cognitive Interview: A Meta-
Analytic Review and Study Space Analysis of the Past 25 Years, 16 PSYCHOL. PUB. POL’Y & L. 340 (2010) (describing research on the
cognitive interview).
391. See R. Edward Geiselman et al., Effects of Cognitive Questioning Techniques on Children’s Recall Performance, in CHILD VICTIMS,
CHILD WITNESSES: UNDERSTANDING AND IMPROVING TESTIMONY 71 (Gail S. Goodman & Bette L. Bottoms eds., 1993)
[hereinafter CHILD VICTIMS, CHILD WITNESSES]; Karen J. Saywitz et al., Effects of Cognitive Interviewing and Practice on Children’s
Recall Performance, 77 J. APPLIED PSYCHOL. 744 (1992); NAT’L INSTITUTE OF JUSTICE, NEW APPROACH TO
INTERVIEWING CHILDREN: A TEST OF ITS EFFECTIVENESS (1992).
392. Karen J. Saywitz & Lynn Snyder, Improving Children’s Testimony with Preparation, in CHILD VICTIMS, CHILD WITNESSES,
supra note 391, at 117, 134–38. See also MICHAEL E. LAMB ET AL., TELL M. WHAT HAPPENED: STRUCTURED
INVESTIGATIVE INTERVIEWS OF CHILD VICTIMS AND WITNESSES (2008).
393. Id. at 126–29; Karen J. Saywitz et al., Helping Children Tell What Happened: A Follow-Up Study of the Narrative Elaboration Procedure,
1 CHILD MALTREATMENT 200 (1996). See also KAREN J. SAYWITZ & LORINDA B. CAMPARO, EVIDENCE-BASED
CHILD FORENSIC INTERVIEWING: THE DEVELOPMENTAL NARRATIVE ELABORATION INTERVIEW (2014)
(describing the Narrative Elaboration Interview).
394. Saywitz & Snyder, supra note 392, at 131–33.
395. Randy K. Otto & John F. Edens, Parenting Capacity, in THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC
ASSESSMENTS AND INSTRUMENTS 229 (2d ed. 2003).
396. Karen S. Budd & Michelle J. Holdsworth, Issues in Clinical Assessment of Minimal Parenting Competence, 25 J. CLINICAL CHILD
PSYCHOL. 2 (1996).

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 397. For a detailed review of the CAP’s psychometric properties by its developer, see Joel S. Milner, Assessing Physical Child Abuse Risk: The
Child Abuse Potential Inventory, 14 CLINICAL PSYCHOL. REV. 547 (1994).
398. Gary B. Melton, Review of the Child Abuse Potential Inventory, Form VI, in TENTH MENTAL MEASUREMENTS YEARBOOK
153, 153 (Jane C. Conoley & Jack Kramer eds., 1989).
399. Id. at 154–55.
400. Otto & Edens, supra note 395, summarized the false-positive problem: “[T]he cost of identifying 100% of the future abusive parents in
his samples has been a very large false positive rate. Almost 90% of the parents with above-cutoff scores did not subsequently abuse their children
(although all abusers did meet this criterion). . . . [T]he study results serve as a graphic reminder that an instrument can be highly successful at
identifying abusers, yet incapable of being used alone as a practical and accurate diagnostic indicator of future abuse because of its potential for
overprediction.” Id. at 290 (emphasis added).
401. Lucy Berliner & Jon Conte, Sexual Abuse Evaluations: Conceptual and Empirical Observations, 17 CHILD ABUSE & NEGLECT
111, 115 (1993). For data on the procedures used in presentation of the dolls, see Barbara W. Boat & Mark D. Everson, Concerning Practices of
Interviewers When Using Anatomical Dolls in Child Protective Services Investigations, 1 CHILD MALTREATMENT 96 (1996).
402. See, e.g., Gerald P. Koocher et al., Psychological Science and the Use of Anatomically Detailed Dolls in Child Sexual-Abuse Assessments,
118 PSYCHOL. BULL. 199 (1995) (report of the American Psychological Association Working Group on Anatomical Dolls); Lamb, supra
note 211, at 100; Melton et al., supra note 58, at 67–69; Glenn Wolfner et al., The Use of Anatomically Detailed Dolls in Sexual Abuse
Evaluations: The State of the Science, 2 APPLIED & PREVENTIVE PSYCHOL. 1 (1993); APSAC, USE OF ANATOMICAL DOLLS
IN CHILD SEXUAL ABUSE ASSESSMENTS § V(A) (1995). A subsequent study of actual investigative interviews has raised some
question about the quality of the interviews with dolls, in that neither preschool nor elementary-school-age children produced more details in
response to open-ended invitations in doll-present interviews, compared with interviews without dolls. Karen L. Thierry et al., Developmental
Differences in the Function and Use of Anatomical Dolls during Interviews with Alleged Sexual Abuse Victims, 73 J. CONSULTING &
CLINICAL PSYCHOL. 1125 (2005). However, young children were more likely to give contradictory information when dolls were present.
Id.
403. Melton et al., supra note 58, at 68 (citing and concurring with Wolfner et al., supra note 402; page citations omitted).
404. Koocher et al., supra note 402, at 218.
405. Id. at 211.
406. STANLEY L. BRODSKY, TESTIFYING IN COURT: GUIDELINES AND MAXIMS FOR THE EXPERT WITNESS 182
(1991).
407. Id. at 184.
408. Such actions sometimes raise constitutional issues and always pose ethical problems. Melton, supra note 205, at 107; Melton & Limber,
supra note 208, at 1229.
409. Melton, supra note 205.
410. This phenomenon is most directly observed in “child advocacy centers,” which often operate under the auspice of the prosecutor’s office.
See id. at 104–06.
411. The remainder of this section is based on id. at 108–09.
412. See, e.g., Dan Slater & Valerie Hans, Public Opinion of Forensic Psychiatry Following the Hinckley Verdict, 141 AM. J. PSYCHIATRY
675 (1984).
413. A forward-looking view—a focus on what can be done, not primarily on whether there has been compliance—is likely to mitigate the
role conflicts even in dispositional assessment itself.
414. CAL. WELF. & INST. CODE §§ 15600-15675 (West 2015).
415. Id. at § 15610.23 defines “dependent adult” to include “any person between the ages of 18 and 64 years . . . who has physical or mental
limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who
have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age” or who are in a health care
facility.
416. Id. at § 15630(b)(1).
417. See, e.g., id. at § 15610.30 (defining financial abuse of an elder or dependent adult).
418. CAL. PENAL CODE §§ 368(a)–(b) (West 2015).
419. Terry Fulmer, Elder Abuse, in ABUSE AND VICTIMIZATION ACROSS THE LIFE SPAN 188, 188–90 (Martha B. Straus ed.,
1988).
420. RICHARD J. GELLES & CLAIRE PEDRICK CORNELL, INTIMATE VIOLENCE IN FAMILIES 101 (2d ed. 1990); David
A. Wolfe, Elder Abuse Intervention: Lessons from Child Abuse and Domestic Violence Initiatives, in ELDER MISTREATMENT: ABUSE,
NEGLECT, AND EXPLOITATION IN AN AGING AMERICA 501, 502–503 (Richard J. Bonnie & Robert B. Wallace eds., 2003).
421. Id. at 101.

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 422. Fulmer, supra note 419, at 189.
423. Id. at 190.
424. GELLES & CORNELL, supra note 420, at 100.
425. Id. at 103.
426. Compare, e.g., John Briere & Jon Conte, Self-Reported Amnesia in Adults Molested as Children, 6 J. TRAUMATIC STRESS 21
(1993), and Linda Meyers Williams, Recall of Childhood Trauma: A Prospective Study of Women’s Memories of Child Sexual Abuse, 62 J.
CONSULTING & CLINICAL PSYCHOL. 1167 (1994) [hereinafter Williams, Recall of Childhood Trauma], and Linda Meyers Williams,
What Does It Mean to Forget Child Sexual Abuse?: A Reply to Loftus, Garry, and Feldman (1994), 62 J. CONSULTING & CLINICAL
PSYCHOL. 1182 (1994) [hereinafter Williams, What Does It Mean to Forget Child Sexual Abuse?], with Elizabeth F. Loftus, The Reality of
Repressed Memories, 48 AM. PSYCHOL. 518 (1993), and Elizabeth F. Loftus et al., Forgetting Sexual Trauma: What Does It Mean When 38%
Forget?, 62 J. CONSULTING & CLINICAL PSYCHOL. 1177 (1994). The debate went several more rounds in a symposium issue, 4(4)
PSYCHOL. PUB. POL’Y & L. (1998), in which the participants were members of the American Psychological Association Working Group
on Investigation of Childhood Abuse.
427. For a critique of this approach, see Kenneth S. Pope, Memory, Abuse, and Science: Questioning Claims about the False Memory
Syndrome Epidemic, 51 AM. PSYCHOLOGIST 957 (1996).
428. At least 19 states have adopted a delayed discovery rule for tort cases involving child abuse, and a few have applied the rule in criminal
proceedings. Loftus, supra note 426, at 520.
429. Briere & Conte, supra note 426.
430. Williams, Recall of Childhood Trauma, supra note 426.
431. Williams, What Does It Mean to Forget Child Sexual Abuse?, supra note 426, at 1184–85.
432. Loftus, supra note 426, at 521.
433. E.g., id. at 530–33.
434. E.g., id. at 530–33.
435. Bette L. Bottoms et al., An Analysis of Ritualistic and Religion-Related Child Abuse Allegations, 20 LAW & HUM. BEHAV. 1 (1996)
[hereinafter Bottoms et al., Ritualistic Abuse]; Bette L. Bottoms et al., In the Name of God: A Profile of Religion-Related Child Abuse, 51 J. SOC.
ISSUES 85 (1995).
436. Bottoms et al., Ritualistic Abuse, supra note 435, at 26.
437. Id. at 25–26.
438. Id. at 21–22.
439. Id. at 24–25.
440. Id. at 21–24.
441. Id. at 9–10.
442. See, e.g., Kenneth V. Lanning, Ritual Abuse: A Law Enforcement View or Perspective, 15 CHILD ABUSE & NEGLECT 171 (1991).
443. Bottoms et al., Ritualistic Abuse, supra note 435, at 27.
444. See supra note 426. Similar observations about the actual level of consensus of expert opinion about the issues regarding recovered
memories, despite the heated disagreements that have been the focal points of the literature, were made by Samuel Knapp & Leon VandeCreek,
Recovered Memories of Childhood Abuse: Is There an Underlying Professional Consensus?, 31 PROF. PSYCHOL: RES. & PRAC. 365 (2000).
445. Final Conclusions of the American Psychological Association Working Group on Investigation of Memories of Childhood Abuse, 4
PSYCHOL. PUB. POL’Y & L. 933, 933 (1998).
446. Id. at 935.
447. Id. at 936.
448. Id.
449. Id.
450. Id. at 937.
451. Id.
452. Loftus, supra note 426, at 534.
453. The references listed in this Bibliography include not only volumes providing an overview of knowledge about child abuse and neglect,
but also books describing the creation and evolution of the field of child protection. Taken together, the books and articles in this list will
provide readers with the equivalent of an in-depth course on the nature of child maltreatment and of societal responses to the problem in the
past half-century.
Journals devoted exclusively to research and practice related to child abuse and neglect include CHILD ABUSE & NEGLECT, CHILD
ABUSE REVIEW, CHILD MALTREATMENT, and the JOURNAL OF CHILD SEXUAL ABUSE. Several others, including

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CHILDREN & YOUTH SERVICES REVIEW and the JOURNAL OF INTERPERSONAL VIOLENCE, consistently include articles
on the topic. In recent years, special issues on child maltreatment have also appeared in CRIMINAL JUSTICE & BEHAVIOR, the
JOURNAL OF CLINICAL CHILD PSYCHOLOGY, and PSYCHOLOGY, PUBLIC POLICY, & LAW.

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Chapter 16

1. U.S. Census Bureau, Number, Timing, and Duration of Marriages and Divorces: 2009, at 2 (2011), available at
https://www.census.gov/prod/2011pubs/p70-125.pdf.
2. Id. at 10.
3. Id. at 11.
4. Id.
5. See Maggie Vincent, Mandatory Mediation of Custody Disputes: Criticism, Legislation and Support, 20 VT. L. REV. 255 (1995); Deborah
Thompson Eisenberg, Reflections on “Innovations in Family Dispute Resolution,” 75 MD. L. REV. 1 (2016) (summarizing research on the
effectiveness of mediation and other alternative dispute mechanisms).
6. Kristine Howanski & Connie Kratovil-Lavelle, Collaborative Lawyering in Family Law Cases: A Paradigm Shift for Addressing Family
Conflict?, 49 MD. BAR J. 44, 48 (Apr. 2016) (listing 21 states that have authorized the collaborative approach through legislation or rule).
7. In a national sample of judges who heard such cases, 55% reported that such opinion evidence was presented in fewer than 10% of the
custody cases they heard. GARY B. MELTON ET AL., COMMUNITY MENTAL HEALTH CENTERS AND THE LAW: AN
EVALUATION OF COMMUNITY-BASED FORENSIC SERVICES 71–72 (1985). The sample was drawn from judges attending a
course at the University of Virginia and thus was unrepresentative, although courts in 24 states and territories were included. Id. at 69–72.
Similar findings were reported in surveys of attorneys and judges in a single Northeastern state. Robert D. Felner et al., Child Custody
Resolution: A Study of Social Science Involvement and Impact, 18 PROF. PSYCHOL.: RES. & PRAC. 468, 470 (1987).
8. Andrew Schepard, Mental Health Evaluations in Child Custody Disputes, 43 FAM. CT. REV. 187, 187 (2005) (“Today, courts routinely
appoint mental health experts as court witnesses with investigative powers and the power to provide an evaluation of family functioning to help
them decide on a parenting plan”).
9. Robert J. Levy, Custody Investigations in Divorce-Custody Litigation, 12 J.L. & FAM. STUDIES 431, 431–34 (2010) (“Despite the fact
that by private agreement the parties clearly control post-divorce placement of children of the marriage, . . . [a] host of divorce practice ‘reforms’
have been adopted by legislatures; others have been conceived by family court judges,” as a result of which “[m]any divorcing spouses are
required to . . . undergo a lengthy, social work investigation of their parenting potential and pre-divorce behavior; . . . undergo psychological
interpretation of their strengths and weaknesses (as persons as well as parents); . . . submit to supervision of their parenting by a court or social
service agency professional; . . . seek the approval of a professional to visit their children; . . . undergo mediation of their marital disputes by a
professional appointed by the judge”) (citations omitted).
10. Judges tend to weigh “responsibility” issues more heavily than do clinicians. Carol R. Lowery, Child Custody Decisions in Divorce
Proceedings: A Survey of Judges, 12 PROF. PSYCHOL. 492 (1981). Conceivably, however, the moral development literature might give some
clues as to the parent more likely to socialize moral values. Thomas Grisso, Forensic Assessment in Juvenile and Family Cases: The State of the
Art 16 (keynote address to the Summer Institute on Mental Health Law, University of Nebraska–Lincoln, June 1, 1984).
11. See William G. Austin, Responding to the Call for Child Custody Evaluators to Justify the Reason for Their Professional Existence: Some
Thoughts on Kelley and Ramsey, 47 FAM. CT. REV. 544, 545 (2009). Even if such research were to be conducted, the methodological and
ethical issues are substantial. Id. at 546.
12. Daniel A. Krauss & Bruce D. Sales, Legal Standards, Expertise, and Experts in the Resolution of Contested Child Custody Cases, 6
PSYCHOL. PUB. POL’Y & L. 843–879 (2000).
13. Our usual injunction against ultimate-issue testimony is of course relevant, even if the scientific basis were more extensive.
14. See Guidelines for Child Custody Evaluations in Family Law Proceedings, 65 AM. PSYCHOLOGIST 863–867 (2010) [hereinafter
Guidelines], and citations therein. The Guidelines are in their second edition and are discussed in § 16.01(c). Although we focus our attention
on the guidelines for psychologists, it is worth noting that similar practice guidelines have been promulgated for psychiatrists: Am. Acad, of
Child & Adolescent Psychiatry, Practice Parameters for Child Custody Evaluation, 36 J. AM. ACAD. CHILD & ADOLESCENT
PSYCHIATRY 575 (1997). Practice standards have also been published by an interdisciplinary group: ASS’N OF FAMILY &
CONCILIATION COURTS (AFCC), MODEL STANDARDS OF PRACTICE FOR CHILD CUSTODY EVALUATION (2006),
available at https://www.afccnet.org/Resource-Center/Practice-Guidelines-and-Standards [hereinafter AFCC MODEL STANDARDS].
15. For extended discussion of this issue, see Randy K. Otto & David Martindale, The Law, Science, and Process of Child Custody Evaluation,
in EXPERT PSYCHOLOGICAL TESTIMONY FOR THE COURTS 251, 261–271 (Mark Costanzo et al. eds., 2007).
16. MELTON ET AL., supra note 7, at 74.
17. Felner et al., supra note 7, at 471.
18. Id. at 472.
19. Stephen J. Yanni, Experts as Final Arbiters: State Law and Problematic Expert Testimony on Domestic Violence in Child Custody Cases,

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116 COLUM. L. REV. 533 (2016); Dana E. Prescott, Forensic Experts and Family Courts: Science or Privilege-by-License?, 28 J. AM. ACAD.
MATRIM. LAW. 521 (2016); Mary Johanna McCurley et al., Protecting Children from Incompetent Forensic Evaluations and Expert
Testimony, 19 J. AM. ACAD. MATRIM. LAW. 277 (2005); Thomas A. Gionia & Anthony S. Zito, Jr., A Call for the Adoption of Federal
Rule 702 for the Admissibility of Mental-Health Professional Expert Testimony in Illinois Child-Custody Cases, 27 S. ILL. U. L.J. 1 (2002);
Daniel W. Shuman, The Role of Mental Health Experts in Custody Decisions: Science, Psychological Tests, and Clinical Judgment, 36 FAM. L.Q.
135 (2002).
20. See Andre P. Derdeyn, Child Custody Consultation, 45 AM. J. ORTHOPSYCHIATRY 791, 795 (1975). The child’s lack of standing
may frustrate his or her sense of fairness.
21. The inadequacy of advocacy for children’s wishes by guardians ad litem is explored in Kim J. Landsman & Martha L. Minow, Note,
Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 YALE L.J. 1126 (1978).
22. 466 U.S. 429 (1984).
23. Id. at 431.
24. Id. at 434.
25. Daniel B. Pickar, Settlement-Focused Parenting Plan Consultations: An Evaluative Mediation Alternative to Child Custody Evaluations, 49
FAM. CT. REV. 59 (2011).
26. Lynn Mather et al., “The Passenger Decides on the Destination and I Decide on the Route”: Are Divorce Lawyers “Expensive Cab Drivers”?,
9 INT’L J.L. POL’Y & FAM. 286 (1995).
27. Catherine M. Lee et al., Lawyers Opinions Regarding Custody Mediation and Assessment Services, 29 AM. PSYCHOLOGIST 115
(1998).
28. For discussion of this developing role, see Christine Coates et al., Parenting Coordination for High-Conflict Families, 42 FAM. CT. REV.
246 (2004); AFCC TASK FORCE ON PARENTING COORDINATION, GUIDELINES FOR PARENTING COORDINATION
(2005), available at https://www. afccnet.org/Resource-Center/Practice-Guidelines-and-Standards.
29. See Richard E. Crouch, Divorce Mediation and Legal Ethics, 16 FAM. L.Q. 219 (1982). See also AFCC MODEL STANDARDS,
supra note 14, std, VI(C), which states that “the evaluator should . . . be cautious about switching roles to that of either mediator or therapist.
Such a change of roles would render future testimony and/or reevaluations invalid by virtue of the change in objectivity and neutrality.” See also
AM. BAR ASS’N (ABA), MODEL STANDARDS OF PRACTICE FOR FAMILY AND DIVORCE MEDIATION iii–iv (2001). See
also Guidelines, supra note 14, at 865–66.
30. Charlotte Germane et al., Mandatory Custody Mediation and Joint Custody Orders in California: The Danger for Victims of Domestic
Violence, 1 BERKELEY J. GENDER L. & JUST. 175, 175–76, 198 (2013) (more than 30 states now have compulsory mediation for parents
involved in disputes about child custody and visitation).
31. Research on who should be screened out of custody mediation in cases of interparental violence is in its early stages, raising concern about
the potential for inequitable solutions in prevailing practice. See Connie J.A. Beck et al., Mediator Assessment, Documentation, and Disposition
of Child Custody Cases Involving Intimate Partner Abuse, 34 LAW & HUM. BEHAV. 227 (2010).
32. Connie J.A. Beck et al., RESEARCH ON THE IMPACT OF FAMILY MEDIATION: MODELS, TECHNIQUES, AND
APPLICATIONS (2004); Robert E. Emery et al., Divorce Mediation: Research and Reflections, 43 FAM. CT. REV. 22 (2005); David A.
Sbarra & Robert E. Emery, Deeper into Divorce: Using Actor–Partner Analyses to Explore Systematic Differences in Coparenting Conflict
Following Custody Dispute Resolution, 22 J. FAM. PSYCHOL. 144 (2008); Peter A. Dillon & Robert E. Emery, Divorce Mediation and
Resolution of Child Custody Disputes: Long-Term Effects, 66 AM. J. ORTHOPSYCHIATRY 131, 131 (1996).
33. Dillon & Emery, supra note 32, at 131–32. One of the authors of the article cited, Robert Emery, is the leading researcher on mediation
and generally a strong proponent of such programs.
34. Id. at 132–33. See also Connie J.A. Beck et al., Analysis of Mediation Agreements of Families Reporting Specific Types of Intimate Partner
Abuse, 47 FAM. CT. REV. 401, 402, 411–15 (2009) (finding that even grave issues such as risk of interparental violence tend to be resolved
unsatisfactorily or ignored entirely in mediation agreements); Michelle L. Toews et al., Court-Related Predictors of Parental Cooperation and
Conflict after Divorce, 35 J. DIVORCE & REMARRIAGE 57 (2001).
35. Dillon & Emery, supra note 32, at 133. A nine-year follow-up of participants in one experiment did show some evidence—by mothers’
but not by fathers’ reports—of greater visitation by the noncustodial parent and greater interparental communication. Id. at 138. A more recent
study found sustained positive effects not only on the parent–child relationship, but also on the parent–parent relationship 12 years later. Robert
E. Emery et al., Child Custody Mediation and Litigation: Custody, Contact, and Coparenting 12 Years after Initial Dispute Resolution, 69 J.
CONSULTING & CLINICAL PSYCHOL. 323 (2001). Such sustained positive effects on parental behavior might reasonably be expected to
translate into a better quality of life for the children.
36. Katherine Kitzmann & Robert E. Emery, Child and Family Coping One Year after Mediated and Litigated Child Custody Disputes, 8 J.
FAM. PSYCHOL. 150 (1994). For a review of the available literature, see Joan B. Kelly, Family Mediation Research: Is There Empirical Support

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for the Field?, 22 CONFLICT RESOL. Q. 2 (2004).
37. Joan B. Kelly, Children’s Adjustment in Conflicted Marriage and Divorce: A Decade Review of Research, 39 J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY 963, 965, 970–73 (2000).
38. See, e.g., ROBERT E. EMERY, RENEGOTIATING FAMILY RELATIONSHIPS: DIVORCE, CHILD CUSTODY, AND
MEDIATION 16–17 (2d ed. 2012).
39. Gary B. Melton, Children, Families, and the Courts in the Twenty-First Century, 66 S. CAL. L. REV. 1993, 2024–25 (1993).
40. See, e.g., Robin Deutsch, Divorce in the 21st Century: Multidisciplinary Family Interventions, 36 J. PSYCHIATRY & L. 41, 42 (2008).
41. See, e.g., Elizabeth MacDowell, Reimagining Access to Justice in the Poor People’s Courts, 22 GEO. J. ON POVERTY L. & POL’Y 473
(2015) (noting that impoverished people often have difficulty paying for mediation, have limited intellectual resources, or are vulnerable to bias
and discrimination from mediators).
42. Guidelines, supra note 14.
43. Id. at 864.
44. Id. at 864.
45. Id. at 866.
46. Id. at 866.
47. Id. at 864–65.
48. Id. at 865.
49. Id. See also AFCC MODEL STANDARDS, supra note 14, std. VI(B) (“a person who has been a . . . therapist for any or all members of
the family should not perform a custody evaluation because the previous knowledge and relationship may render him or her incapable of being
completely neutral and incapable of having unbiased objectivity”); Jeffrey Zimmerman et al., Ethical and Professional Considerations in Divorce
and Child Custody Cases, 40 PROF. PSYCHOL.: RES. & PRAC. 539, 542 (2009).
50. Guidelines, supra note 14, at 679. See also AFCC MODEL STANDARDS, supra note 14, stds. III, IV (recommending multiparty and
multisource evaluations), VI(E) (“evaluators shall not make statements of fact or inference about parties whom they have not seen”).
51. David Martindale et al., Model Standards of Practice for Child Custody Evaluation, 45 FAM. CT. REV. 70 (2006).
52. Linda Cavallero & Susan Hanks, Guidelines for Brief Focused Assessment: AFCC Task Force on Brief Focused Assessments (2012),
available at http://www.williamjames.edu/community/children-families-law/upload/mspp-brief-focused-assessment.pdf.
53. Elizabeth Scott & Andre P. Derdeyn, Rethinking Joint Custody, 45 OHIO ST. L.J. 455, 464–65 nn.41–42 (1984).
54. Id. See Chapsky v. Wood, 26 Kan. 650 (1881). See also, e.g., Larry Wright, Comment: Interviewing Children in Child Custody Cases, 18 J.
AM. ACAD. MATRIM. LAW. 295 (2002).
55. See, e.g., Hines v. Mines, 185 N.W. 9 (Iowa 1921).
56. See Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW & CONTEMP.
PROBS. 226 (1975).
57. See generally Andre P. Derdeyn, Child Custody in Historical Perspective, 133 AM. J. ORTHOPSYCHIATRY 1369 (1976).
58. See, e.g., State ex rel. Watts v. Watts, 350 N.Y.S.2d 285 (Fam. Ct. 1973). Cf. In re Doe, 418 S.E.2d 3 (Ga. 1992) (when both parents are
legal custodians, they have equal responsibility for decisions about the child).
59. See, e.g., CAL. FAM. CODE § 3080 (Deering 2005).
60. E.g., Leighton E. Stamps, Maternal Preference in Child Custody Decisions, 37 J. DIVORCE & REMARRIAGE 1 (2002).
61. See, e.g., Hollon v. Hollon, 784 So.2d 943 (Miss. 2001) (affirming rule that preference for maternal custody is merely a factor to be
considered in determining a child’s best interest).
62. See, e.g., Mary Becker, Maternal Feelings: Myth, Taboo, and Child Custody, 1 S. CAL. REV. L. & WOMEN’S STUDIES 133, 223
(1992).
63. June R. Carbone, A Feminist Perspective on Divorce, 4 FUTURE OF CHILDREN 183 (1994).
64. See Elizabeth S. Scott & Robert E. Emery, Gender Politics and Child Custody: The Puzzling Persistence of the Best-Interests Standard, 77
LAW & CONTEMP. PROBS. 69, 69–70 (2014).
65. Id. at 69 (“The vagueness and indeterminacy of the standard make outcomes uncertain and gives judges broad discretion to consider
almost any factor thought to be relevant to the custody decision. This encourages litigation in which parents are motivated to produce hurtful
evidence of each other’s deficiencies that might have a lasting, deleterious impact on their ability to act cooperatively in the actual best interests
of their children”). See also Leighton E. Stamps, Age Differences among Judges Regarding Maternal Preference in Child Custody Decisions, 38
CT. REV. 18 (2002); Janet Weinstein, And Never the Twain Shall Meet, 52 U. MIAMI L. REV. 79 (1997).
66. Race of a parent’s new spouse is one such factor. See supra notes 22–24 and accompanying text. See also Visikides v. Derr, 348 S.E.2d 40
(Va. App. 1986).
67. Robert Emery, Randy K. Otto & William O’Donohue, A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed

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System, 6 PSYCHOL. SCI. PUB. INT. 1, 5–6 (2005); Randy K. Otto & John F. Edens, Parenting Capacity, in EVALUATING
COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 229, 235–240 (Thomas Grisso ed., 2003). But see, e.g., In re
Converse, 826 P.2d 937 (Mont. 1992); Sukin v. Sukin, 842 P.2d 922 (Utah App. 1992).
68. See Marsha Klein Pruitt & J. Herbie DiFonzo, Closing the Gap: Research, Policy, Practice and Shared Parenting, 52 FAM. CT. REV.
152, 156 (2014) (noting that the Act has been “widely adopted in varying forms by many U.S. states”).
69. Uniform Marriage and Divorce Act § 402, 9A U.L.A. 561 (1987).
70. Richard A. Warshak, The Approximation Rule, Child Development Research, and Children’s Best Interests after Divorce, 1(2) CHILD
DEV. PERSPECTIVES 119 (2007); Richard A. Warshak, Best Interests and the Fulfillment of Noble Aspirations, 1(2) CHILD DEV.
PERSPECTIVES 137 (2007).
71. See generally Robert E. Emery, Rule or Rorschach?: Approximating Children’s Best Interests, 1(2) CHILD DEV. PERSPECTIVES 132
(2007).
72. 140 N.W.2d 152 (Iowa 1966).
73. Id. at 155.
74. Id. at 156.
75. Id. at 154.
76. Id. at 156. Interestingly, a few years later the child expressed a desire to live with his father, and the grandparents did not oppose the
move.
77. Mnookin, supra note 56, at 262.
78. JOSEPH GOLDSTEIN, ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1973).
79. See Richard E. Crouch, An Essay on the Critical and Judicial Reception of “Beyond the Best Interests of the Child,” 13 FAM. L.Q. 49
(1979).
80. Daniel Katkin et al., Above and Beyond the Best Interests of the Child: An Inquiry into the Relationship between Law and Social Action, 8
LAW & SOC’Y REV. 669 (1974); Gary B. Melton, The Psychologist’s Role in Juvenile and Family Law, 7 J. CLINICAL CHILD PSYCHOL.
189, 190 (1978).
81. GOLDSTEIN ET AL., supra note 78, at 9–20. But see Michael S. Wald, Thinking about Public Policy toward Abuse and Neglect of
Children: A Review of Beyond the Best Interests of the Child, 78 MICH. L. REV. 645, 655–70 (1980).
82. GOLDSTEIN ET AL., supra note 78 (describing Child Placement Code of Hampstead-Haven).
83. Id. at 101.
84. There is substantial evidence that infants form multiple attachments, although they tend to prefer the primary caregiver in times of stress.
These studies are reviewed with attention to their implications for policy in W. Glenn Clingempeel & N. Dickon Reppucci, Joint Custody after
Divorce: Major Issues and Goals for Research, 91 PSYCHOL. BULL. 102, 112–13 (1982); Ross A. Thompson, The Father’s Case in Child
Custody Disputes: The Contributions of Psychological Research, in FATHERHOOD AND FAMILY POLICY 53, 90–94 (Michael E. Lamb &
Abraham Sagi eds., 1983).
85. GOLDSTEIN ET AL., supra note 78, at 153.
86. Id. at 54, 62–63.
87. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 981–83 (1979).
88. N. Dickon Reppucci, The Wisdom of Solomon: Issues in Child Custody Determination, in CHILDREN, MENTAL HEALTH, AND
THE LAW 59, 65 (N. Dickon Reppucci et al. eds., 1984).
89. GOLDSTEIN ET AL., supra note 78 (describing Child Placement Code of Hampstead-Haven).
90. Cf. Michael W. Agopian, Parental Child Stealing: Participants and the Victimization Process, 5 VICTIMOLOGY 263 (1980).
91. J. Herbie DiFonzo, From the Rule of One to Shared Parenting: Custody Presumptions in Law and Policy, 52 FAM. CT. REV. 213 (2014).
92. The concept of a primary attachment figure is controversial within psychology. Some researchers have noted that children commonly
have multiple attachment figures, and that attachments change across time. See, e.g., Michael E. Lamb et al., The Role of Parent–Child
Relationships in Child Development, in SOCIAL AND PERSONALITY DEVELOPMENT: AN ADVANCED TEXTBOOK 259, 261–
63, 275–78 (Michael Lamb & Mark S. Bornstein eds., 2011).
93. Richard Neely, The Primary Caretaker Rule: Child Custody and the Dynamics of Greed, 3 YALE L. & POL’Y REV. 168 (1984).
94. See, e.g., Lenz v. Lenz, 430 N.W.2d 168 (Minn. 1988); Foreng v. Foreng, 509 N.W.2d 38 (N.D. 1993); Note, A Step Backward: The
Minnesota Supreme Court Adopts a “Primary Caretaker” Presumption in Child Custody Cases, 70 MINN. L. REV. 1344 (1986).
95. Arguably, there is a maternal bias in the rule, because it focuses on the sorts of parental behavior that are more common among mothers
and ignores those that are more common among fathers. Cf. Eleanor E. Maccoby, Divorce and Custody: The Rights, Needs, and Obligations of
Mothers, Fathers, and Children, in THE INDIVIDUAL, THE FAMILY AND SOCIAL GOOD: PERSONAL FULFILLMENT IN
TIMES OF CHANGE 135, 153–58 (Gary B. Melton ed., 1995) (describing differences in parental behavior between men and women, and

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indicating their balance within “coparenting”). As a practical matter, the primary-caregiver rule may simply offer a facially neutral way to ensure
that mothers are typically awarded custody of young children—a tender-years presumption for an era of de jure gender equality. See Shearer v.
Shearer, 448 S.E.2d 165, 170–71 (W. Va. 1994) (Neely, J., dissenting) (attacking “rampant gender bias” in the West Virginia judiciary’s
application of the primary-caregiver rule).
96. See David L. Chambers, Rethinking the Substantive Rules for Custody Disputes in Divorce, 83 MICH. L. REV. 477 (1984).
97. Shearer v. Shearer, 448 S.E.2d 165, 167 (W. Va. 1994), quoting Garska v. McCoy, 278 S.E.2d 357 (W. Va. 1981).
98. Shearer v. Shearer, 448 S.E.2d at 168, quoting David M. v. Margaret M., 385 S.E.2d 912, 923 (W. Va. 1989).
99. Although almost all mothers regard themselves as having been the principal caregivers, the majority of divorcing fathers view themselves
as having had a preseparation level of involvement in their children’s lives equal to or greater than that of their wives. ELEANOR E.
MACCOBY & ROBERT H. MNOOKIN, DIVIDING THE CHILD: SOCIAL AND LEGAL DILEMMAS OF CUSTODY 67
(1992). This disparity reflects differences in perceptions of responsibilities for economic support and childrearing per se. Id at 68–70. When the
disparity is large, there is a high probability of substantial or intense legal conflict. Id. at 145.
100. W. VA. CODE § 48-11-06 (2000).
101. Id. at § 48-9-206.
102. In Texas, the court appoints parents as “joint managing conservators,” but it must designate which conservator “has the exclusive right
to determine the primary residence of the child”; must “specify the rights and duties of each parent concerning the child’s physical care, support
and education”; and must “allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent .
. . the best interest of the child shall ways be the primary consideration” in determining those issues. TEX. FAM. CODE ANN. § 153.134(B)
(1).
103. AMERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION § 2.03 (2002).
104. Elizabeth Scott, Pluralism, Parental Preference, and Child Custody, 80 CAL. L. REV. 615, 618–19 (1992).
105. Michael E. Lamb, The “Approximation Rule”: Another Proposed Reform That Misses the Target, 1 CHILD DEV. PERSPECTIVES
135–136 (2007).
106. Scott & Derdeyn, supra note 53, at 469–70. The movement was spurred in part by fathers’ groups. Id. at 462 nn.30–31 and
accompanying text.
107. CAL. FAM. CODE § 3080 (Deering 2005). See Scott & Derdeyn, supra note 53, at 456 n.3.
108. See Survey of American Law, 11 FAM. L. REP. 3015, 3019 (1985).
109. For a list of state statutes on joint custody through 2013, see ABA, Joint Custody Presumptions and Domestic Violence Exceptions (Aug.
2014), available at
http://www.americanbar.org/content/dam/aba/administrative/domestic_violence1/Charts/2014%20Joint%20Custody%20Chart.authcheckdam.pdf.
110. See, e.g., MACCOBY & MNOOKIN, supra note 99, at 106.
111. See, e.g., CAL. FAM. CODE § 3080 (Deering 2005).
112. Arnold F. Blockman, Survey of Illinois Law: Joint Custody Dilemmas and Views from the Bench, 31 S. ILL. U. L.J. 941, 942 (2001).
113. E.g., FLA. STAT. ANN. § 61.13(2)(b) (West Supp. 2005).
114. See Scott & Derdeyn, supra note 53, at 475–77 and citations therein.
115. Id. at 472–73 and citations therein.
116. Id. at 475–77.
117. Id. at 476–77.
118. DiFonzo, supra note 91, at 216 (“The risk inherent in a joint custodial arrangement is the creation of ‘confusion and instability for
children at the very time they need a sense of certainty and finality in their lives,’ particularly if the parents are not committed to the substantial
collaboration and communication required for the success of joint custody. Most courts and commentators agree with the oft-quoted dictum of
the New York Court of Appeals that ‘joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents
behaving in mature civilized fashion,’ while ‘[a]s a court-ordered arrangement imposed upon already embattled and embittered parents, accusing
one another of serious vices and wrongs, it can only enhance familial chaos’ ”).
119. Blockman, supra note 112, at 951-52.
120. Christy Buchanan & Parissa L. Jahromi, A Psychological Perspective on Shared Custody Arrangements, 43 WAKE FOREST L. REV.
419, 423–24 (2008).
121. Id., at 423–24.
122. See Michael T. Flannery, Is “Bird-Nesting” in the Best Interests of Children?, 57 SMU L. REV. 295 (2004) (also noting that research had
yet to investigate the efficacy of this approach).
123. U.S. Census Bureau, supra note 1, at 2, 4, 7 (2011).
124. Richard Fry, A Rising Share of Young Adults Live in Their Parents’ Home: A Record 21.6 Million in 2012 (Aug. 1, 2013), available at

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http://www.pewsocialtrends.org/2013/08/01/a-rising-share-of-young-adults-live-in-their-parents-home.
125. Mark E. Sullivan, Military Custody and Visitation: Problems and Solutions in the Twenty-First Century, 52 FAM. CT. REV. 355–370
(2014).
126. Obergefell v. Hodges, 576 U.S. 2584, 2605 (2015).
127. See, e.g., Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010) (granting custody to the nonbiological member of a previously cohabiting
same-sex couple).
128. In the Interest of M.M.M. and S.H.M., Minor Children, 428 S.W.3d 389 (Tex. App. 2014).
129. 576 U.S. 2584, 2605 (2015).
130. E.g., In re Wiarda, 505 N.W.2d 506 (Iowa Ct. App. 1993); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980); G.A. v. D.A., 745
S.W.2d 726 (Mo. Ct. App. 1987); Tucker v. Tucker, 910 P.2d 1209 (Utah 1996); Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995). The court
in G.A. was especially distressed that the lesbian mother was openly living with her lover. In Tucker, the court was concerned by the moral
example of living with a lesbian partner while still married.
131. 539 U.S. 558 (2003).
132. 466 U.S. 429 (1984).
133. Frank Aiello, Would’ve, Could’ve, Should’ve: Custodial Standing of Non-Biological Same-sex parents for Children Born before Marriage
Equality, 24 AM. U. J. GENDER SOC. POL’Y & L. 469, 469 (2016).
134. For an article that gives this advice, see Gerald L. Shoemaker, Same-Sex Marriage: Now What?, 37 PA. LAW. 34 (Oct. 2015).
135. Jeffrey A. Dodge, Same-Sex Marriage and Divorce: A Proposal for Child Custody Mediation, 44 FAM. CT. REV. 87 (2006).
136. More than 30,000 military marriages ended in 2011, the highest rate in 10 years. Michelle Miller, Trouble on the Home Front?: Military
Divorces on the Rise, CBS NEWS, Jan. 16, 2013.
137. 50 U.S.C. § 522.
138. Robert A. Simon, Special Considerations in Conducting Psychological Custody Evaluations with Military Families, 52 FAM. CT. REV.
440, 444–5 (2014).
139. Uniform Deployed Parents Custody and Visitation Act (2012), available at
http://www.uniformlaws.org/shared/docs/Deployed_Parents/2012_DPCVA_Final.pdf.
140. Simon, supra note 138, at 442–52 (discussing the need for “cultural competence” in this area).
141. 6 U.S.C. § 241.
142. Convention on the Civil Aspects of International Child Abduction (Oct. 25, 1980), available at
https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
143. 25 U.S.C. § 1901-1924.
144. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979).
145. See Heather Kendall-Miller, State of Alaska v. Native Village of Tanana: Enhancing Tribal Power by Affirming Concurrent Tribal
Jurisdiction to Initiate ICSA-Defined Child Custody Proceedings, both Inside and Outside of Indian Country, 28 ALASKA L. REV. 217 (2011).
146. See, e.g., In re Baby Boy L., 643 P.2d 168 (Kan. 1982).
147. In re A.J.S., 204 P.3d 543 (Kan. 2009).
148. 81 Fed. Reg. 38801–02 (June 14, 2016).
149. See generally Sharon Press, Family Court Services: A Reflection on 50 Years of Contributions, 51, FAM. CT. REV. 48, 49–50, 54–55
(2013).
150. For an overview of statutory and case law governing this topic, see Jeffrey A. Parness, Third Party Stepparent Child Care, 67 MERCER
L. REV. 383 (2016); Stephen Hellman, Stepparent Custody upon the Death of the Custodial Parent, 14 J. SUFFOLK ACAD. L. 23 (2000).
151. See Parness, supra note 150, at 393-94 (“Grandchildren sometimes can be placed in grandparent custody to the clear detriment of the
child and stepparent. Biology trumps best interests.”).
152. See, e.g., In re Marriage of Wilson, 55 P.3d 1106 (Or. App. 2002); Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000); Zvorak v. Beireis, 519
N.W.2d 87, 88–89 (Iowa 1994), and citations therein (the principle of best interests of the child must accommodate “the strong societal interest
in preserving the natural parent–child relationship,” to the extent that the court may even “remove children from conscientious, well-intentioned
custodians with a history of providing good care to the children and place them with a natural parent,” id. at 89); LA. CIV. CODE ANN. art.
133 (West 1996) (a third party may obtain custody of a child only if an award of custody to the parent would result in substantial harm to the
child).
153. See Parness, supra note 150, at 391.
154. See, e.g., Carter v. Taylor, 611 So. 2d 874 (Miss. 1992); Bubac v. Boston, 600 So. 2d 951 (Miss. 1992). See also Malpass v. Hodson, 424
S.E.2d 470 (S.C. 1992) (a mother’s attempt to recover custody from the grandparents is dependent on her parental fitness, the amount of
contact she has had with the child, the circumstances under which temporary relinquishment occurred, and the degree of attachment between

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the child and the grandparents). Cf. Ray v. Burns, 832 S.W2d 431 (Tex. Ct. App. 1992) (a grandmother was awarded joint custody in a case in
which the mother had an “unstable, disorganized, and chaotic lifestyle”).
155. Ross A. Thompson et al., Grandparents’ Visitation Rights: Legalizing the Ties That Bind, 44 AM. PSYCHOLOGIST 1217 (1989).
156. Patricia H. Shiono & Linda Sandham Quinn, Epidemiology of Divorce, FUTURE OF CHILDREN, Spring 1994, at 1. This decrease
has been especially marked among African American families, although grandparents in African American families still are substantially more
likely to be in a central child care role than are grandparents in European American families. Id. See also § 15.05(g).
157. Thompson et al., supra note 155, at 1219.
158. 530 U.S. 57 (2000).
159. See, e.g., In re Marriage of Howard, 661 N.W.2d 183 (Iowa 2003); Wickham v. Byrne, 769 N.E.2d. 1 (Ill. 2002).
160. See, e.g., Glidden v. Conley, 820 A.2d 197 (Vt. 2003); Blixt v. Blixt, 774 N.E. 2d 1052 (Mass. 2002).
161. Thompson et al., supra note 155, at 1220.
162. Id. at 1220–21.
163. Id. at 1221.
164. J.B. Kelly & J.R. Johnston, Differentiation among Types of Intimate Partner Violence: Research Update and Implications for
Interventions, 46 FAM. CT. REV. 487 (2008) (observing that family violence sometimes occurs for the first time in the context of separation).
165. For a review, see Nancy K.D. Lemon, Statutes Creating Rebuttable Presumptions against Custody to Batterers: How Effective Are They?,
28 WM. MITCHELL L. REV. 601, 608 n.37 (2001).
166. Nucito v. Nucito, Docket No. FM-01-(Super. Ct. N.J. Ch. Div. 1995), described in Haberman, infra note 167, at 149-153.
167. For a review, see Paul S. Haberman, Before Death, We Must Part: Relocation and Protection for Domestic Violence Victims in Volatile
Divorce and Custody Situations, 43 FAM. CT. REV. 149 (2005).
168. For one measure, see Frank Ezzo & Kevin Young, Child Maltreatment Risk Inventory: Pilot Data for the Cleveland Child Abuse Potential
Scale, 27 J. FAM. VIOLENCE 145–155 (2012); see also Megan L. Haselschwerdt et al., Custody Evaluators’ Beliefs about Domestic Violence
Allegations during Divorce, 26 J. INTERPERS. VIOLENCE 1694 (2011).
169. Christine Walsh et al., The Relationship between Parental Substance Abuse and Child Maltreatment, 27 CHILD ABUSE &
NEGLECT 1409 (2003).
170. M.P. Johnson & J.M. Leone, The Differential Effects of Intimate Terrorism and Situational Couple Violence: Findings from the National
Violence Against Women Survey, 26 J. FAM. ISSUES 322 (2005)
171. Jason D. Hans et al., The Effects of Domestic Violence Allegations on Custody Evaluators’ Recommendations, 28 J. FAM. PSYCHOL.
957 (2014).
172. Austin suggests that evaluators determine through third parties whether there was a pattern of abuse or abuse complaints prior to the
commencement of the custody dispute, whether substance abuse was an exacerbating factor, and the mental health status of the alleged
victim(s). William G. Austin, Assessing Credibility in Allegations of Marital Violence in the High-Conflict Child Custody Case, FAM. &
CONCILIATION CTS. REV. 466, 469–71 (2000).
173. Jason D. Hans et al., The Effects of Domestic Violence Allegations on Custody Evaluators’ Recommendations, 28 J. FAM. PSYCHOL.
957 (2014); Mary A. Kernic et al., Children in the Crossfire, 11 VIOLENCE AGAINST WOMEN 991 (2005); Nancy E. Johnson et al., Child
Custody Mediation in Cases of Domestic Violence, 11 VIOLENCE AGAINST WOMEN 1022 (2005).
174. Sandra T. Azar & Linda R. Cote, Sociocultural Issues in Evaluation of the Needs of Children in Custody Decision Making: What Do Our
Current Frameworks for Evaluating Parenting Practices Have to Offer?, 25 INT’L J.L. & PSYCHIATRY, 193, 197 (2002).
175. Debra H. Hermann, Advancing Children’s Rights to be Heard and Protected: The Model Representation of Children in Abuse, Neglect,
and Custody Proceedings Act, 28 BEHAV. SCI. & L. 463 (2010).
176. In re Marriage of Burgess, 913 P.2d 472 (Cal. 1996); In re Marriage of LaMusga, 88 P.3d 81 (Cal. App. 2004).
177. Tropia v. Tropea, 665 N.E.2d 145 (N.Y. 1996).
178. Am. Acad. of Matrimonial Lawyers, Proposed Model Relocation Act: An Act Relating to the Relocation of the Principal Residence of a
Child, 15 J. AM. ACAD. MATRIM. LAW. 1, 3 (1998).
179. Alice Richards, Emerging Issues in Relocation Cases, 25 J. AM. ACAD. MATRIM. LAW. 425 (2013).
180. Mnookin & Kornhauser, supra note 87, at 981–83.
181. Victoria B. Mitrani et al., Factors Related to Loss of Child Custody in HIV+ Women in Drug Abuse Recovery, 35 AM. J. DRUG &
ALCOHOL ABUSE 320–324 (2009); Angela Kyzer et al., Environmental Risk Factors and Custody Status in Children of Substance Abusers, 36
CHILDREN & YOUTH SERV. REV. 150–154 (2014).
182. The studies were the Virginia Longitudinal Study of Divorce by Mavis Hetherington, Martha Cox, and Roger Cox, and the California
Children of Divorce Project by Judith Wallerstein and Joan Kelly. See, e.g., E. Mavis Hetherington, Divorce: A Child’s Perspective, 34 AM.
PSYCHOLOGIST 851 (1979) [hereinafter Hetherington, Divorce]; E. Mavis Hetherington, Parents, Children, and Siblings Six Years after

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Divorce, in RELATIONSHIPS WITHIN FAMILIES 311 (Robert A. Hinde & Joan Stevenson eds., 1988); E. Mavis Hetherington, An
Overview of the Virginia Longitudinal Study of Divorce and Remarriage with a Focus on Early Adolescence, 1 J. FAM. PSYCHOL. 39 (1993)
[hereinafter Hetherington, Overview]; E. Mavis Hetherington et al., The Effects of Divorce on Parents and Children, in NONTRADITIONAL
FAMILIES 233 (Michael E. Lamb ed., 1982); Joan B. Kelly & Judith S. Wallerstein, The Effects of Parental Divorce: Experiences of the Child in
Early Latency, 46 AM. J. ORTHOPSYCHIATRY 20 (1976); Judith S. Wallerstein, The Long- Term Effects of Divorce on Children: A Review,
30 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 349 (1991); Judith S. Wallerstein & Joan B. Kelly, The Effects of Parental
Divorce: Experiences of the Child in Later Latency, 46 AM. J. ORTHOPSYCHIATRY 256 (1976); Judith S. Wallerstein & Joan B. Kelly, The
Effects of Parental Divorce: The Experiences of the Preschool Child, 14 J. AM. ACAD. CHILD PSYCHIATRY 600 (1975).
183. A good summary appears in Thompson, supra note 84, at 83, 90–94.
184. Judith S. Wallerstein, Children of Divorce: Preliminary Report of a Ten-Year Follow-Up of Young Children, 54 AM. J.
ORTHOPSYCHIATRY 444 (1984). But see E. Mavis Hetherington & W. Glenn Clingempeel, Coping with Marital Transitions, 37(2–3)
MONOGRAPHS SOC’Y FOR RES. CHILD DEV. (Serial No. 227), at 1 (1992) (finding that whereas earlier research indicated that
problems with younger children abated over time, adjustment problems persisted for adolescents, at least those in stepfamilies).
185. Hetherington & Clingempeel, supra note 184, at 206.
186. Clingempeel & Reppucci, supra note 84, at 117 and studies cited therein. Such factors may be especially important “[w]here there is
concern about the capacity of both parents to protect the child from the interparental conflict and their own disturbed attitudes and behavior.”
Janet R. Johnston, High-Conflict Divorce, 4 THE FUTURE OF CHILDREN 165, 179 (Spring 1994).
187. Hetherington, Overview, supra note 182, at 48; Carla S. Stover et al., The Effects of Father Visitation on Preschool-Aged Witnesses of
Domestic Violence, 18 J. INTERPERS. VIOLENCE 1149 (2003) (finding this to be so even in those families where fathers had engaged in
violence toward mothers).
188. Hetherington, Divorce, supra note 182, at 856.
189. Id. at 852, 854; Youngmin Sun & Yanzhang Li, Children’s Well-Being during Parents’ Marital Disruption Process: A Pooled Time-Series
Analysis, 64 J. MARRIAGE & FAM. 472 (2002).
190. Paul R. Amato, Reconciling Divergent Perspectives: Judith Wallerstein, Quantitative Family Research, and Children of Divorce, 52 FAM.
REL. 332 (2003); E. Mavis Hetherington & Margaret M. Stanley-Hagen, Parenting in Divorced and Remarried Families, in 3 HANDBOOK
OF PARENTING 287, 292 (Marc H. Bornstein ed., 2d ed. 2002); Lisa Strohschein, Parental Divorce and Child Mental Health Trajectories,
67 J. MARRIAGE & FAM. 1286 (2005).
191. ROBERT E. EMERY, THE TRUTH ABOUT CHILDREN AND DIVORCE: DEALING WITH THE EMOTIONS S. YOU
AND YOUR CHILDREN CAN THRIVE 7–8 (2006); Joan B. Kelly & Robert E. Emery, Children’s Adjustment Following Divorce: Risk and
Resilience Perspectives, 52 FAM. REL. 352, 353–54, 361–62 (2003).
192. Paul Amato, Research on Divorce: Continuing Trends and New Developments, 72 J. MARRIAGE & FAM. 650, 657 (2010); Constance
Ahrons, Family Ties after Divorce: Long-Term Implications for Children, 46 FAM. PROCESS 53, 58–61 (2007).
193. For an overview of work indicating that children of divorced parents face increased risk for a plethora of negative effects—including
lower academic achievement, conduct problems, lower self-esteem, lower education, decreased social competence, lower job status/standard of
living, poor parent–child relations, divorce, single parenthood, and physical and mental health problems—see Paul R. Amato & Bruce Keith,
Parental Divorce and Adult Well-Being: A Meta-Analysis, 53 J. MARRIAGE & FAM. 43 (1991) (also noting that the effect sizes in many
studies were small, and that thus that these risks, although real, may not be as substantial as previously thought); Paul R. Amato & Jacob
Cheadle, The Long Reach of Divorce: Divorce and Child Well-Being across Three Generations, 67 J. MARRIAGE & FAM. 191 (2005). See also
Hetherington & Clingempeel, supra note 184 (finding an effect of divorce apart from parental competence); E. MARK CUMMINGS &
PATRICK DAVIES, CHILDREN AND MARITAL CONFLICT: THE IMPACT OF FAMILY DISPUTE AND RESOLUTION
(1994); Eleanor E. Maccoby, Family Structure and Children’s Adjustment: Is Quality of Parenting the Major Mediator?, 57(2–3)
MONOGRAPHS SOC’Y FOR RES. CHILD DEV. (Serial No. 227), at 230 (1992). Early longitudinal research indicated that the
magnitude of differences between divorced and intact families decreased over time, perhaps reflecting greater acceptance of divorce, less conflict
associated with divorce (given legal reforms), and more involvement by fathers. Paul R. Amato, Life-Span Adjustment of Children to Their
Parents’ Divorce, FUTURE OF CHILDREN, Spring 1994, at 143.
194. Carol Anderson, The Diversity, Strengths, and Challenges of Single-Parent Households, in NORMAL FAMILY PROCESSES:
GROWING DIVERSITY AND COMPLEXITY 128, 142–46 (Froma Walsh ed., 4th ed. 2012); Laura M. Tach et al., Trends in the
Economic Consequences of Marital and Cohabitation Dissolution in the United States, 52 DEMOGRAPHY 401, 403 (2015); Jornt J.
Mandemakers et al., Do Mother’s and Father’s Education Condition the Impact of Parental Divorce on Child Well-Being?, 44 SOC. SCI. RES.
187, 187–88, 196–97 (2013); Roy Wade et al., Adverse Childhood Experiences of Low-Income Urban Youth, 134 PEDIATRICS e13, e17
(2014).
195. Violetta Schaan, Resilience and Rejection Sensitivity Mediate Long-Term Outcomes of Parental Divorce, 25 EUR. CHILD &

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ADOLESCENT PSYCHIATRY 1267, 1267–69 (2016); Liz Trinder et al., The Relationship between Contact and Child Adjustment in High
Conflict Cases after Divorce or Separation, 13 CHILD & ADOLESCENT MENTAL HEALTH 181, 183, 185 (2008); Daniel J. Pilowsky et
al., Family Discord, Parental Depression, and Psychopathology in Offspring: 20-Year Follow-Up, 45, J. AM. ACAD. CHILD &
ADOLESCENT PSYCHIATRY, 452, 455–57 (2006); Lawrence Ganong et al., Divorce Mothers’ Coparental Boundary Maintenance after
Parents Repartner, 29 J. FAM. PSYCHOL. 221, 222–23, 229–30 (2015).
196. L. Laumann-Billings & Robert E. Emery, Distress among Young Adults from Divorced Families, 14 J. FAM. PSYCHOL. 671, 684–85
(2000); S.E. Gilman et al., Family Disruption in Childhood and Risk of Adult Depression, 160 AM. J. PSYCHIATRY 939, 941–42 (2003);
Strohschein, supra note 190, at 708–10.
197. Tracie O. Afifi et al., The Relationship between Child Abuse, Parental Divorce, and Lifetime Mental Disorders and Suicidality in a
Nationally Representative Adult Sample, 33 CHILD ABUSE & NEGLECT 139 (2009); M. Dong et al., The Interrelatedness of Multiple
Forms of Childhood Abuse, Neglect, and Household Dysfunction, 28 CHILD ABUSE & NEGLECT 771, 781 (2004).
198. Anthony J. Christopher et al., Divorce, Approaches to Learning, and Children’s Academic Achievement: A Longitudinal Analysis of
Mediated and Moderated Effects, 52 J. SCH. PSYCHOL. 249, 250, 257–58 (2014); Jeremy Arkes, The Temporal Effects of Divorces and
Separations on Children’s Academic Achievement and Problem Behavior, 56 J. DIVORCE & REMARRIAGE 25, 38–39 (2015).
199. Christopher et al., supra note 198, at 258; Krista Soria, Parental Divorce and First-Year College Students’ Persistence and Academic
Achievement, 55 J. DIVORCE & REMARRIAGE 103, 104, 112–14 (2014).
200. Daniel Potter, Psychosocial Well-Being and the Relationship between Divorce and Children’s Academic Achievement, 72 J. MARRIAGE
& FAM. 933, 944 (2010).
201. Richard A. Warshak, Social Science and Parenting Plans for Young Children, 20 PSYCHOL. PUB. POL’Y & L. 46, 46–47 (2014).
202. EMERY, supra note 191, at 4.
203. Pew Research Center, The Rise of Single Fathers: A Ninefold Increase since 1960 (July 2, 2013), available at
http://www.pewsocialtrends.org/files/2013/07/single-fathers-07-2013.pdf.
204. N.Y. MATRIM. LAW & PRACTICE § 20:15 (2015).
205. Warshak, supra note 201; M. Carlson et al., Coparenting and Nonresident Fathers’ Involvement with Young Children after a Nonmarital
Birth, 45 DEMOGRAPHY 461 (2008).
206. Thompson, supra note 84, at 83–84.
207. Ross D. Parke, Fathers and Families, in 3 HANDBOOK OF PARENTING 27 (Marc H. Bornstein ed., 2d ed. 2002); Thompson,
supra note 84, at 74–77 (noting that, at the time the review was written, all of the studies taking a positive view of single fathers as custodians
“rely upon interviews with single fathers without direct observation of father–child interaction ” and “probably reflect a select, highly motivated,
and involved sample.”).
208. Matthew Stevenson et al., Fathers, Divorce and Child Custody, in HANDBOOK OF FATHER INVOLVEMENT 379 (Natasha
Cabrera et al. eds., 2013); Nancy Dowd, Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. & MARY BILL RTS. J. 909, 921
(2006) (arguing for abolition of the presumption that marital fathers should have rights over biological fathers, in part based on the conclusion
that empirical data “strongly suggests that men present at birth, birthfathers, are committed to the child and the mother, and intend to remain
an active presence in the lives of both mother and child”).
209. John W. Santrock & Richard A. Warshak, Father Custody and Social Development in Boys and Girls, 35(4) J. SOC. ISSUES 112
(1979).
210. Id.
211. Hetherington & Stanley-Hagen, supra note 190, and citations therein.
212. Id. at 238.
213. Although remarriage presents advantages in economic support for children and emotional support for custodial parents, many newly
remarried parents find new problems of monitoring, control, and attachment, in part because of unclarity about the role that stepparents should
play. The effects of parental remarriage include complex interactions of the child’s age, gender, and previous relationship with the custodial
parent. See generally id. at 241–46. Moreover, the quality of a new marriage is highly related to the stepparent–stepchild relationship. Mark A.
Fine & Lawrence A. Kurdek, Relation between Marital Quality and (Step)Parent–Child Relationship Quality for Parents and Stepparents in
Stepfamilies, 9 J. FAM. PSYCHOL. 216 (1995). This fact provides additional evidence for the need to consider relationships beyond those
between parents and children. It also gives another reason to be humble in making predictions about the effects of potential dispositions,
because a parent may have no specific plans to remarry at the time of evaluation.
214. Early research indicated that mothers’ availability is related to sons’ academic achievement. Lois W. Hoffman, Maternal Employment:
1979, 34 AM. PSYCHOLOGIST 859, 863 (1979). Father absence, especially as a result of divorce, adversely affects adolescent girls’ ability to
relate easily to boys. E. Mavis Hetherington, Effects of Father Absence on Personality Development in Adolescent Daughters, 1 DEV.
PSYCHOL. 313 (1972).

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 215. Beudry et al. found that sibling groups that had remained intact were more harmonious, had greater stability in the quality of the sibling
relationships, and were subject to fewer custody modifications. Madeleine Beudry et al., What Happens to the Sibling Subsystem Following
Parental Divorce?, in THE CHANGING FAMILY AND CHILD DEVELOPMENT 105 (Claudio Violato et al. eds., 2000). Note,
however, that this study had a small sample (N = 144) and used a vague criterion variable (ranging from “not harmonious” to “very
harmonious”). In any event, “keeping the children together” appears to be one of the strongest determinants of de facto custody arrangements.
MACCOBY & MNOOKIN, supra note 99, at 77. Courts generally support this approach. See, e.g., Wiskoski v. Wiskoski, 629 A.2d 996 (Pa.
Super. 1993); Mitzel v. Black Cloud-Warberg, 511 N.W.2d 816 (S.D. 1994).
216. Douglas B. Downey & Brian Powell, Do Children in Single-Parent Households Fare Better Living with Same-Sex Parents?, 55 J.
MARRIAGE & FAM. 55 (1993); Richard Warshak & John W. Sanbrock, The Impact of Divorce in Father-Custody and Mother-Custody
Homes: The Child’s Perspective, 19 NEW DIRECTIONS FOR CHILD DEV. 29, 31–33, 41–46 (1983).
217. Brian Powell & Douglas B. Downey, Living in Single-Parent Households: An Investigation of the Same-Sex Hypothesis, 62 AM.
SOCIOLOGICAL REV. 521 (1997); Lawrence J. Walker & Karl H. Hennig, Parent/Child Relationships in Single-Parent Families, 29 CAN.
J. BEHAV. SCI. 63 (1997).
218. See Robert D. Felner & Lisa Terre, Joint Custody: A Simplistic Solution, FAM. ADVOC., Summer 1986, at 7.
219. Marjorie Lindner Gunnoe & Sanford L. Braver, The Effects of Joint Legal Custody on Mothers, Fathers, and Children Controlling for
Factors That Predispose a Sole Maternal versus Joint Legal Award, 25 LAW & HUM. BEHAV. 25, 36 (2001); Kyrre Breivik & Dan Olweus,
Adolescents’ Adjustment in Four Post-Divorce Family Structures: Single Mother, Stepfather, Joint Physical Custody and Single Father Families, 44
J. DIVORCE & REMARRIAGE 99 (2006) (showing no adjustment problems for children in joint-custody arrangements, except in the
domain of school achievement, as compared with their peers from intact two-parent homes).
220. Johnston, supra note 186, at 179; Cynthia R. Mabry, Indissoluble Nonresidential Parenthood: Making It More Than Semantics When
Parents Share Parenting Responsibilities, 26 BYU J. PUB. L. 229 (2012).
221. P.G. Jaffee et al., Legal and Policy Responses to Children Exposed to Domestic Violence: The Need to Evaluate Intended and Unintended
Consequences, 6 CLINICAL CHILD & FAM. PSYCHOL. REV. 205, 210–13 (2003); Maritza Karmely, Presumption Law in Action: Why
States Should Not Be Seduced into Adopting a Joint Custody Presumption, 30 NOTRE DAME J.L. ETHICS & PUB. POL’Y 321 (2016);
Mabry, supra note 220, at 236.
222. Hetherington & Stanley-Hagen, supra note 190, at 297. Children typically adjust well when their divorced parents are disengaged from
each other, “provided that their parents do not interfere with each other’s parenting, conflict is low, and the children are not asked to act as go-
betweens.” Id. Although conflict rarely turns into cooperation, disengagement often does so: “Our findings suggest that if parents cannot
initially cooperate, they can keep the door open for later improvements in co-parenting by initially reducing communication.” MACCOBY &
MNOOKIN, supra note 99, at 248.
223. Gunnoe & Braver, supra note 219, at 36.
224. Mabry, supra note 220, at 235.
225. Joint custody raises the probability of receiving child support for all single mothers by 8%, but the benefit is conferred on divorced
mothers more than never-married single mothers. See Brandeanna D. Allen et al., The Effect of Joint-Child-Custody Legislation on the Child
Support Receipt of Single Mothers, 32 J. FAM. & ECON. ISSUES 124, 132–33 (2011).
226. Linda Nielsen, Shared Physical Custody: Summary of 40 Studies on Outcomes for Children, 55 J. DIVORCE & REMARRIAGE 613,
630–35 (2014); Amandine Baude et al., Child Adjustment in Joint Physical Custody versus Sole Custody: A Meta-Analytic Review, 57 J.
DIVORCE & REMARRIAGE 338, 356–60 (2016); Robert Bauserman, A Meta-Analysis of Parental Satisfaction, Adjustment, and Conflict in
Joint Custody and Sole Custody Following Divorce, 53 J. DIVORCE & REMARRIAGE 464, 480–88 (2012).
227. Bauserman, supra note 226, at 464.
228. Michelle Toews, Court-Related Predictors of Parental Cooperation and Conflict after Divorce, 35 J. DIVORCE & REMARRIAGE 57,
70–73 (2001). See also M. Bergström et al., Fifty Moves a Year: Is There an Association between Joint Physical Custody and Psychosomatic
Problems in Children?, 28 J. EPIDEMIOLOGY & COMMUNITY HEALTH 1 (2015); Francine Cyr et al., Family Life, Parental Separation,
and Child Custody in Canada: A Focus on Quebec, 51 FAM. CT. REV. 552 (2013).
229. Hetherington & Stanley-Hagen, supra note 190, at 309.
230. See Amato, supra note 193, at 148.
231. Neil Websdate, Nashville: Domestic Violence and Incarcerated Women in Poor Black Neighborhoods, in DOMESTIC VIOLENCE AT
THE MARGINS: READINGS ON RACE, CLASS, GENDER, AND CULTURE, 142, 2150–56 (Natalie Sokoloff ed., 2005). See also
Gary B. Melton, Developmental Psychology and the Law: The State of the Art, 22 J. FAM. L. 445, 472 n.119 (1984), and accompanying text.
Data from 1999 indicate that half of all state and federal prisoners report having at least one child under the age of 18, and as many as 1,400,000
children in the United States have one or more parents housed in the criminal justice system at any time. Christopher J. Mumola, Incarcerated
Parents and Their Children (Bureau of Justice Statistics Special Report No. NCJ 182335, Aug. 2000), available at

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https://www.bjs.gov/content/pub/pdf/iptc.pdf. For discussion of the impact of parental incarceration of children and families, see JEREMY
TRAVIS ET AL., FAMILIES LEFT BEHIND: THE HIDDEN COSTS OF INCARCERATION AND REENTRY (2005);
PRISONERS ONCE REMOVED: THE IMPACT OF INCARCERATION AND REENTRY ON CHILDREN, FAMILIES AND
COMMUNITIES (Jeremy Travis & Michelle Waul eds., 2003); and CHILDREN OF INCARCERATED PARENTS (Katherine Gabel &
Denise Johnston eds., 1995). For a discussion of the visitation rights of incarcerated parents, and the legal and logistical barriers to ongoing
contact during imprisonment, see Pamela Lewis, Comment: Behind the Glass Wall: Barriers That Incarcerated Parents Face Regarding the Care,
Custody and Control of Their Children, 19 J. AM. ACAD. MATRIM. LAW. 97 (2004).
Incarceration by itself generally does not justify termination of visitation rights. See, e.g., Lewis v. Lewis, 637 A.2d 70 (D.C. 1994); Smith v.
Smith, 869 S.W.2d 55 (Ky. Ct. App. 1994); Sullivan v. Shaw, 650 A.2d 882 (Pa. Super. 1994). Cf. Debra Ratterman, Statutes on Children of
Arrested or Incarcerated Parents, 13 ABA JUV. & CHILD WELFARE L. REP. 139 (1994) (review of law on child protection proceedings
involving incarcerated parents).
232. Simon Crouch, Parent-Reported Measures of Child Health and Wellbeing in Same-Sex Parent Families: A Cross-Sectional Survey, 14
BMC PUB. HEALTH 635 (2014); Charlotte A.J. Patterson, Lesbian and Gay Parenthood, in 3 HANDBOOK OF PARENTING 317 (Marc
H. Bornstein ed., 2d ed. 2002); AM. PSYCHOL. ASS’N, LESBIAN AND GAY PARENTING (2005).
233. Mark Regnerus, How Different Are the Adult Children of Parents Who Have Same-Sex Relationships?: Findings from the New Family
Structures Study, 41 SOC. SCI. RES. 752 (2012).
234. Whether through statutory or common law, all states now provide for consideration of the child’s wishes in custody and visitation cases.
Catherine A. Crosby-Currie, Children’s Involvement in Contested Custody Cases: Practices and Experiences of Legal and Mental Health
Professionals, 20 LAW & HUM. BEHAV. 289, 289–92 (1996).
235. NEB. REV. STAT. § 42-364(2)(B) (2005).
236. I. Butler et al., Children’s Involvement in Their Parents’ Divorce: Implications for Practice, 16 CHILDREN & SOC’Y 89 (2002).
237. Crosby-Currie, supra note 234, at 292.
238. Karen Saywitz et al., Interviewing Children in Custody Cases, 28 BEHAV. SCI. & L. 542–562 (2010).
239. Ellen Greenberg Garrison, Children’s Competence to Participate in Divorce Custody Decisionmaking, 20 J. CLINICAL CHILD
PSYCHOL. 78 (1991).
240. See generally Richard A. Warshak, Payoffs and Pitfalls of Listening to Children, 52 FAM. REL. 373 (2003).
241. Sandeep K. Gude et al., Child Testimony and Best Interests of the Child in Child Custody or Visitation Cases, 44 LEGAL DIGEST 267,
269 (2016).
242. Warshak, supra note 240, at 374.
243. Elizabeth S. Scott et al., Children’s Preference in Adjudicated Custody Decisions, 22 GA. L. REV. 1035, 1046–47 (1988).
244. Id. at 1047.
245. Id. at 1048–49.
246. Id. at 1047. Similar findings about judges’ habits in regard to child involvement in custody cases were obtained in a subsequent two-state
study. Crosby-Currie, supra note 234; see also Robert Felner et al., Party Status of Children during Marital Dissolution: Child Preference and
Legal Representation in Custody Decisions, 14 J. CLINICAL CHILD PSYCHOL. 42, 47 (1985) (finding that age and intellectual and
emotional maturity heavily influenced whether children were consulted).
247. Better Lawyering: New ABA Standards for the Child’s Attorney, 15 CHILD L. PRAC. 6, 6 (std. A-1) (1996) [hereinafter Better
Lawyering]. The ABA Standards and related commentary were originally published in American Bar Association Standards of Practice for
Lawyers Who Represent Children in Abuse and Neglect Proceedings, 29 FAM. L.Q. 375 (1995). For extensive commentary on these standards,
see Symposium, Ethical Issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1279 (1996). See also Marvin R. Ventrell,
Clarifying the Role of the Child’s Attorney: New Scholarship Provides Guidance, GUARDIAN, Spring 1996, at 3 (discussion by the executive
director of the National Association of Counsel for Children of the themes of the ABA Standards and the Fordham issue).
248. Better Lawyering, supra note 247, at 6 (stds. B-2(1), B-4).
249. Id. (std. B-4(3)). See also id. (std. B-2(1)).
250. Id. (std. A-2).
251. Id. at 7 (std. C-1).
252. Id. (std. D-2).
253. Id. at 8 (std. D-5).
254. Id. (std. D-7).
255. Id. at 9–10 (std. I-2).
256. Id. at 7 (std. C-2).
257. Id. (stds. C-2(4), C-2(6)).

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 258. Stephanie deLusé & Sanford Braver, A Rigorous Quasi-Experimental Design to Evaluate the Causal Effect of a Mandatory Divorce
Education Program, 53 FAM. CT. REV. 76–78 (2015); Marsha Kline Pruett et al., The Collaborative Divorce Project, 43 FAM. CT. REV. 38–
51 (2005).
259. This position is also recommended by Derdeyn, supra note 20, at 795, and the AFCC MODEL STANDARDS, supra note 14, std.
I(A) (“If there is a court-connected office of evaluation and conciliation, the evaluation shall be referred to that office for assignment to a
qualified evaluator. If there is no such related office or if the evaluation is to be handled privately, the court shall appoint an evaluator or one
must be agreed to by both parties and approved by the court”). One consequence of this position is that contact with any counsel, other than
with respect to scheduling or administrative matters, should probably be reduced to writing and copied to other counsel.
260. One instance in which access to one parent (and the child) might be sufficient is when that parent’s competence is in question and he or
she seeks only to rebut that argument. Even in that example, though, it would be very helpful to have the other parent’s perceptive to focus the
evaluation appropriately.
261. A stark example of treating clinicians’ tendency to take sides in custody disputes was presented by Derdeyn, supra note 20, at 788–99.
262. Psychotherapist privilege” is the privilege to keep information gathered in therapy from being admitted into evidence in a legal
proceeding. In federal courts and in many states, it applies to communications with social workers and psychologists, as well as with
psychiatrists. See § 4.04(c).
263. Psychotherapist privilege is not available at all in about one-third of the states, and it is often not available to clients of social workers
and sometimes psychologists. Gary B. Melton et al., Ethical and Legal Issues in Mental Health Services for Children, in HANDBOOK OF
CLINICAL CHILD PSYCHOLOGY 1074 (C. Eugene Walker & Michael C. Roberts eds., 3d ed. 2001).
264. It is at least arguable that when a client divulges information in the presence of another client (especially a spouse with whom he or she
may become involved in litigation), he or she has waived any expectation of privacy. On the other hand, such a rule would frustrate the purposes
of psychotherapist privilege, and it might deter spouses from seeking counseling in an attempt to save their marriage or resolve issues outside
court. Cf. Minnesota v. Andring, 342 N.W.2d 128 (Minn. 1984) (privilege applicable in group therapy).
265. The question of whether the child or a parent owns the privilege in child therapy is unclear. Melton et al., supra note 263, at 1087. The
issue is still more muddled in exercise of the privilege in custody disputes. Because of the potential conflict of interest, at least one court has
required appointment of a guardian ad litem to decide whether to exercise privilege on behalf of a child when the child was too young to exercise
it competently. Nagle v. Hooks, 460 A.2d 49 (Md. Ct. Spec. App. 1983).
266. It has been argued that marriage counselor privilege cannot be invoked in a custody dispute because the exclusion of reliable evidence
relevant to the parents’ fitness interferes with the child’s constitutional right to due process. M. v. K., 452 A.2d 407 (N.J. Super. 1982).
267. Carleton Stansbury, Accessibility to a Parent’s Psychotherapy Records in Custody Disputes, 28 BEHAV. SCI. & L. 522–541 (2010).
268. See, e.g., LESLIE M. DROZD ET AL., PARENTING PLAN AND CHILD CUSTODY EVALUATIONS: USING DECISION
TREES TO INCREASE EVALUATOR COMPETENCE & AVOID PREVENTABLE ERRORS (2014); MARC J. ACKERMAN,
CLINICIAN’S GUIDE TO CHILD CUSTODY EVALUATIONS (3d ed. 2006); G. ANDREW BENJAMIN ET AL., FAMILY
EVALUATION IN CUSTODY LITIGATION: REDUCING RISKS OF ETHICAL INFRACTIONS AND MALPRACTICE (2003);
JONATHAN W. GOULD, CONDUCTING SCIENTIFICALLY CRAFTED CHILD CUSTODY EVALUATIONS (2d ed. 2006);
PHILIP M. STAHL & ROBERT A. SIMON, FORENSIC PSYCHOLOGY CONSULTATION IN CHILD CUSTODY
LITIGATION (2013).
269. Randy K. Otto et al., Child Custody Evaluation, in 11 HANDBOOK OF PSYCHOLOGY 179, 180–81, 207–08 (Alan M. Goldstein
& Irving B. Weiner eds., 2003).
270. See generally James N. Bow, Use of Third Party Information in Child Custody Evaluations, 28 BEHAV. SCI. & L. 511 (2010).
271. W.G. Keilin & L.J. Bloom, Child Custody Evaluation Practices: A Survey of Experienced Professionals, 17 PROF. PSYCHOL.: RES. &
PRAC. 338 (1986); Marc J. Ackerman & Melissa C. Ackerman, Custody Evaluation Practices, A Survey of Experienced Professionals (Revisited),
28 PROF. PSYCHOL.: RES. & PRAC. 137 (1997); Marc J. Ackerman & T. Brey Pritzl, Child Custody Evaluation Practices: A 20-Year
Follow-Up, 49 FAM. CT. REV. 618 (2011).
272. THOMAS GRISSO, EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND INSTRUMENTS 200 (1986)
(citation omitted).
273. “[Testing] can provide information . . . to determine fitness in being able to parent adequately. . . . Psychological testing can also reveal
the emotional make up of the child and parents and can provide information about such dimensions as maturity, antisocial tendencies,
propensity to anxiety and depression, and dangerousness to self and others. . . . Psychological testing may provide important information
regarding which parent may be more capable to raise a child and also in resolving visitation issues.” STANLEY KISSEL & NELSON W.
FREELING, EVALUATING CHILDREN FOR THE COURTS USING PSYCHOLOGICAL TESTS 5 (1990).
274. “Many tests were evaluated and examined in the preparation of this chapter. We found no tests that directly measure the domain of
functional parent abilities. Although some instruments sample parental attitudes and beliefs, there is insufficient evidence to correlate these

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attitudes with actual behavior.” BENJAMIN M. SCHUTZ ET AL., SOLOMON’S SWORD: A PRACTICAL GUIDE TO
CONDUCTING CHILD CUSTODY EVALUATIONS 69 (1989).
275. “Projective measures have not been shown to have the requisite psychometric properties to render them reliable or valid for predicting
custodial functioning.” Lois A. Weithorn & Thomas Grisso, Psychological Evaluations in Divorce Custody: Problems, Principles, and Procedures,
in PSYCHOLOGY AND CHILD CUSTODY DETERMINATIONS: KNOWLEDGE, ROLES AND EXPERTISE 165 (Lois A.
Weithorn ed., 1987).
276. Robert E. Emery et al., A Critical Assessment of Child Custody Evaluations: Limited Science and a Flawed System, 6 PSYCHOL. SCI.
PUB. INT. 1 (2005).
277. Ackerman & Ackerman, supra note 271.
278. Leah Horvath et al., Child Custody Cases: A Content Analysis of Evaluations in Practice, 33 PROF. PSYCHOL.: RES. & PRAC. 560
(2002). For a comprehensive summary of research examining evaluators’ practices in this context, see James Bow, Review of Empirical Research
in Child Custody Practice, . J. CHILD CUSTODY RES. 23, 30–31 (2006).
279. David Brodzinsky, On the Use and Misuse of Psychological Testing in Child Custody Evaluations, 24 PROF. PSYCHOL.: RES. &
PRAC. 213, 214 (1993). Brodzinsky goes on to note: “Psychological tests were developed primarily to address clinical questions, especially those
related to clinical diagnosis and treatment planning . . . but these data are only indirectly tied to the substantive issue involved in custody and
visitation disputes. . . . [W]e do not know how valid they are in addressing those issues that are of primary concern to the court.” Id. at 214–15.
280. “It requires many inferential leaps to connect [traditional tests] with parental competencies we are attempting to measure.” SCHUTZ
ET AL., supra note 274, at 67. See also Karen S. Budd & Michelle J. Holdsworth, Issues in Clinical Assessment of Minimal Parenting
Competence, 25 J. CLINICAL CHILD PSYCHOL. 2, 4 (1996), and citations therein.
281. Brodzinsky, supra note 279, at 213. “There is a clear need for standardized assessment procedures that are geared specifically to the
issues confronting the child custody evaluator. Such procedures, though, whether they are clinician-administered tests or self-report
questionnaires, must have proven reliability and validity for forensic purposes. Unfortunately, the current array of tests and questionnaires
typically used by custody evaluators does not meet these criteria.” Id. at 218.
282. Murray A. Straus, Conflict Tactics Scale, in ENCYCLOPEDIA OF DOMESTIC VIOLENCE 190–97 (2007).
283. R. ABIDIN, PARENTING STRESS INDEX: PROFESSIONAL MANUAL (3d ed. 1995).
284. J.S. MILNER, THE CHILD ABUSE POTENTIAL INVENTORY: MANUAL (2d ed. 1986).
285. A.B. GERARD, PARENT–CHILD RELATIONSHIP INVENTORY (PCRI): MANUAL (1994).
286. MARC J. ACKERMAN & KATHLEEN SCHOENDORF, ACKERMAN–SCHOENDORF SCALES FOR PARENT
EVALUATION OF CUSTODY (1992).
287. S.J. Bavolek & R.G. Keene, ADULT–ADOLESCENT PARENTING INVENTORY, VERSION 2 (1999).
288. A few examples of other measures include RICHARD R. ABIDIN & TIMOTHY R. KONOLD, PARENTING ALLIANCE
MEASURE (1999); R. MOOS & B. MOOS, FAMILY ENVIRONMENT SCALES (1994); D.H. OLSON, FAMILY ADAPTABILITY
AND COHESION EVALUATION SCALE IV (2008); R. EPSTEIN, EPSTEIN PARENTING COMPETENCY INVENTORY
(2007); BARRY BRICKLIN, BRICKLIN PERCEPTUAL SCALES (1990); HARRY L. MUNSINGER & KEVIN W. KARLSON,
UNIFORM CHILD CUSTODY EVALUATION SYSTEM (1994). See generally Kathleen Holland, Supplementary Parenting Inventories
Used in Custody Evaluations, in HANDBOOK OF CHILD CUSTODY, 93, 93–95 (Mark L. Goldstein ed., 2016).
289. Searches in November 2016 of the PsycINFO, LexisNexis Academic, and PubMed databases yielded virtually no population-based or
large-sample-size empirical studies illustrating the efficacy and utility of specific measures in custody evaluations.
290. See generally Marc Ackerman, Transfusion Maybe, Laid to Rest, No: A Response to the Mary Connell Review of the Ackerman–Schoendorf
Scales for Parent Evaluation of Custody (ASPECT), 2 J. CHILD CUSTODY 211, 211 (2005) (statement by author of ASPECT that he “will
not even attempt to disagree” with the assertion that “the ASPECT has inadequate psychometric properties,” since that assertion is “based on
sound thinking”); Barry Bricklin & Michael H. Halbert, Can Child Custody Data Be Generated Scientifically?: Part I, 32 AM. J. FAM.
THERAPY 119, 119 (2010) (statement by developer of Bricklin Perceptual Scales that “[c]ustody assessment tools are particularly difficult to
assess for merit, since a decision-maker cannot weigh their value by checking their data against those derived from a widely accepted model.
None exists”).
291. Otto & Edens, supra note 67, at 268; Robert A. Nicholson, Forensic Assessment, in PSYCHOLOGY AND LAW: THE STATE OF
THE DISCIPLINE 121, 162 (Ronald Roesch et al. eds., 1999) (“To date, there are no studies examining the relationship between scores on
these measures and independent criteria of parenting capacity in custody cases”).
292. Budd & Holdsworth, supra note 280. See also Michaela C. Heinze & Thomas Grisso, Review of Instruments Assessing Parenting
Competencies Used in Child Custody Evaluations, 14 BEHAV. SCI & L. 293 (1996).
293. See supra note 290.
294. We draw a distinction between case consultation and clinical treatment, and we reiterate the problems of entering into a dual evaluative

1139
and treatment role.
295. Rebecca A. Clay, Courts Reshape Image of “the Good Mother,” APA MONITOR, Dec. 1995, at 31, 31.
296. Id.
297. See, e.g., Thompson v. Thompson, 651 N.E.2d 222 (Ill. Ct. App. 1995) (denying a 17-year-old boy standing to seek an order placing
his custody with his aunt and uncle, who had cared for him after the death of his divorced mother).
298. See, e.g., William A. Galston, Needed: A Not-So-Fast Divorce Law, N.Y. TIMES, Dec. 27, 1995, at A15.
299. Guidelines, supra note 14, at 678.

Chapter 17

1. Ruth Perou et al., Mental Health Surveillance among Children—United States, 2005–2011, 62 MORBIDITY & MORTALITY WKLY.
REP. 1 (2013 supp.). In 2010, attention-deficit/hyperactivity disorder (6.8%) was the most prevalent parent-reported current diagnosis among
children ages 3–17 years, followed by behavioral or conduct problems (3.5%), anxiety (3.0%), depression (2.1%), autism spectrum disorders
(1.1%), and Tourette’s syndrome (0.2%). An estimated 4.7% of adolescents ages 12–17 years reported an illicit drug use disorder in that year and
the suicide rate for persons ages 10–19 years was 4.5 suicides per 100,000 adolescents.
2. 347 U.S. 483 (1954).
3. See, e.g., U.S. Dep’t of Education, Race to the Top Program: Guidance and Frequently Asked Questions (May 27, 2010), available at
https://www2.ed.gov/programs/racetothetop/faq.pdf.
4. The Education for All Handicapped Children Act was enacted as Pub. L. No. 94-142, 20 U.S.C. § 1400 (Nov. 29, 1975). The 1990
Individuals with Disabilities Education Act, Pub. L. No. 101-476, was reauthorized in 2004 as the Individuals with Disabilities Education
Improvement Act, Pub. L. No. 108-446, but it is still generally known by its 1990 title and abbreviated as the IDEA.
5. 34 C.F.R § 104.4(b)(1), (2), (4) (§ 504 regulation); 28 U.S.C. § 35.130(b)(1)(iii) (ADA regulation); 34 C.F.R § 104.4(b)(4); 28 C.F.R. §
35.130(b)(iii)(3).
6. 20 U.S.C. §§ 1400(c), 1412(5)(B).
7. 42 U.S.C. § 12131(2); 34 C.F.R. § 104.4(b); 28 C.F.R. §§ 35.130(b)(2), (7) & (d); see also Alexander v. Choate, 469 U.S. 287, 300–01
(1985); Thomas v. Davidson Acad., 846 F. Supp. 611 (M.D. Tenn. 1994).
8. 20 U.S.C. § 1412(a)(16).
9. 34 C.F.R § 104.4(b)(1) (§ 504 regulation); 28 U.S.C. § 35.130(b)(1, iii) (ADA regulation). ADA also applies to activities outside schools,
such as camp, sport activities, and standardized testing (e.g., the SAT and ACT).
10. 20 U.S.C. § 6301-7714
11. Jan Kampmann, Young Children as Learners, in THE SAGE HANDBOOK OF CHILD RESEARCH 136, 136–152 (Gary B. Melton
et al. eds., 2014).
12. Id. at 138–39.
13. 20 U.S.C. §§ 1400(b)(1), (3), (4).
14. 20 U.S.C. § 1400(b)(9).
15. Abuse and Neglect of Children in Institutions, 1979: Hearings before the Subcomm. on Child and Human Development of the Senate Comm.
on Labor and Human Resources, 96th Cong., 1st Sess. (1979).
16. L. LIPPMAN & I. GOLDBERG, THE RIGHT TO EDUCATION 29 (1973); David Neal & David L. Kirp, The Allure of
Legalization Reconsidered: The Case of Special Education, 48 LAW & CONTEMP. PROBS. 63, 69 (1985).
17. LIPPMAN & GOLDBERG, supra note 16, at 8–9. See also Larry P. v. Riles, 343 F. Supp. 1306 (N.D. Cal. 1972), aff’d, 502 F.2d 963
(9th Cir. 1974) (finding that although black persons formed 28.5% of the school district’s population, black children made up 66% of classes for
those who were then classified as “educable mentally retarded,” and enjoining the use of then-current IQ tests as racially discriminatory).
18. Neal & Kirp, supra note 16, at 68.
19. Christopher Slobogin, Treatment of the Mentally Disabled: Rethinking the Community-First Idea, 69 NEB. L. REV. 413, 418–19 (1990).
20. 347 U.S. 483 (1954).
21. 334 F. Supp. 279 (E.D. Pa. 1972).
22. 348 F. Supp. 866 (D.D.C. 1972).
23. E.g., New York State Ass’n for Retarded Children, Inc., v. Carey, 393 F. Supp. 715 (1975).
24. 457 U.S. 307 (1982).
25. See Lois A. Weithorn, Envisioning Second Order Change in America’s Response to Troubled and Troubling Youth, 33 HOFSTRA L.
REV. 1305, 1314–31 (2005) (describing the health care, mental health, child welfare, juvenile justice and educational systems); GARY B.
MELTON ET AL., N. PLACE TO GO: THE CIVIL COMMITMENT OF MINORS (1998).

1140
 26. 484 U.S. 305 (1988).
27. 1972 Mass. Acts 766 (codified as amended at MASS. ANN. LAWS ch. 71B, § 2 (2006).
28. Andrew S. Gordon, Note, Special Education in Massachusetts: Reevaluating Standards in Light of Fiscal Constraints, 26 NEW ENG. L.
REV. 263, 285 (1991).
29. Id. at 265, citing MASS. GEN. LAWS ch. 71B, § 1 (1990).
30. Pub. L. No. 108-446, 118 Stat. 2647, tit. I, § 602 (3)(A)(i)(ii) (Dec. 3, 2004).
31. 34 C.F.R. § 300.8(C)(6).
32. 34 C.F.R. § 300.8(C)(4)(i)(A).
33. In a series of studies conducted in the 1990s, researchers compared poor readers, with and without IQ–achievement discrepancies, on
many cognitive and educational indicators. The researchers reported few reading-related differences between the two groups, invalidating IQ–
achievement discrepancy as an important or primary marker of learning problems, and underscoring the need to develop more meaningful
definitions and operationalizations of learning difficulty constructs. See J.M. Fletcher et al., Cognitive Profiles of Reading Disability: Comparisons
of Discrepancy and Low Achievement Definitions, 85 J. EDUC. PSYCHOL. 1 (1994); D.J. Francis et al., Developmental Lag versus Deficit
Models of Reading Disability, 88 J. EDUC. PSYCHOL. 3 (1996). For an up-to-date analysis, see K.K. Steubing et al., Evaluation of the
Technical Adequacy of Three Methods of Identifying Specific Learning Disabilities Based on Cognitive Discrepancies, 41 SCH. PSYCHOL. REV.
3 (2012).
34. 20 U.S.C. § 1414(b)(6).
35. Jeremy Miciak et al., The Effect of Achievement Test Selection on Identification of Learning Disabilities within a Patterns of Strengths and
Weaknesses Framework, 30 SCH. PSYCHOL. Q. 321 (2014). See also Kristen D. Beach & Rollanda E. O’Connor, Early Response-to-
Intervention Measures and Criteria as Predictors of Reading Disability in the Beginning of Third Grade, 48 J. LEARNING DISABILITIES 196
(2015).
36. 20 U.S.C. § 1414(b)(5).
37. 20 U.S.C. §§ 1401(9)(A–C).
38. 458 U.S. 176 (1982).
39. Id. at 200.
40. Id. at 203.
41. See generally Slobogin, supra note 19, at 425–29.
42. 137 S.Ct. 988, 1001 (2017). See also, Jefferson Cnty. Sch. Dist. v. Elizabeth E. 702 F.3d 1227 (10th Cir. 2012) (noting the IDEA’s
“requirement that all children, no matter how disabled, receive some meaningful educational benefit,” although distinguishing this standard
from Deal, infra, which it suggested adopted a heightened requirement); Deal v. Hamilton Cnty. Bd. of Educ., 392 F.3d 840 (6th Cir. 2004)
(“At the very least, the intent of Congress appears to have been to require a program providing a meaningful educational benefit towards the
goal of self-sufficiency, especially where self-sufficiency is a realistic goal for a particular child”); Burke County Bd. of Educ. v. Denton, 895
F.2d 973, 980 (4th Cir. 1990); Polk v. Central Susquehanna, 853 F.2d 171 (3d Cir. 1988) (holding that the “some benefit” language in Rowley
“connotes an amount of benefit greater than mere trivial advancement.”); Evans v. Dist. No. 17, 841 F.2d 824, 831 (8th Cir. 1988); Brown v.
Wilson Cnty. Sch. Bd., 747 F. Supp. 436, 442 (M.D. Tenn. 1990).
43. See In re Conklin, 946 F.2d 306, 320–21 (4th Cir. 1991) (summary of statutes).
44. 137 S.Ct. at 1001 (rejecting the claim that the IDEA mandates “an education that aims to provide a child with a disability opportunities
to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children
without disabilities”).
45. 20 U.S.C.A. § 1401(26)(A).
46. 468 U.S. 883 (1984).
47. Id. at 892; see also Cedar Rapids Comm. Sch. Dist. v. Garret F. 526 U.S. 66, 75–76 (1999).
48. See also Cedar Rapids Comm. Sch. Dist. v. Garret F., 526 U.S. 66 (1999) (affirming the essential holding of Tatro and rejecting the
application of a multifactor test that includes cost of such services to the schools).
49. Pub. L. No. 91-230, tit. VI, pt. B, § 6121412 (5)(B).
50. 20 U.S.C.A. § 1412(5)(B).
51. Alan Gartner & Dorothy Lipsky, Beyond Special Education: Toward a Quality System for All Students, 57 HARV. EDUC. REV. 367
(1987) (74% of all children with disabilities were educated in “pull-out” classes); Douglas Biklen, The Least Restrictive Environment: Its
Application to Education, in LEGAL REFORMS AFFECTING CHILD AND YOUTH SERVICES (Gary B. Melton ed., 1982); St. Louis
Dev. Dis. Treatment Ctr. Parents Ass’n v. Mallory, 591 F. Supp. 1416, 1451 n.73 (W.D. Mo. 1984) (85% of children with disabilities were
educated in specially designed buildings); Florida Advocacy Center for Persons with Disabilities, Position Paper (1987) (87.2% of children with
mental disabilities in Florida were placed in special classes or separate schools), cited in Slobogin, supra note 19, at 426 n.56.

1141
 52. Janet Sansone & Naomi Zigmond, Evaluating Mainstreaming through an Analysis of Students’ Schedules, 52(5) EXCEPTIONAL
CHILDREN 452 (1986).
53. Anne Proffitt Dupre, Disability and the Public Schools: The Case against Inclusion, 72 WASH. L. REV. 775, 819 (1997).
54. For a more detailed discussion of the debate and the lower courts’ handling of these issues, see Stacey Gordon, Making Sense of the
Inclusion Debate under IDEA, 2006 BYU EDUC. & L.J. 189 (2006).
55. 700 F.2d 1058 (6th Cir.), cert. denied, 464 U.S. 864 (1983).
56. The child was currently attending a regular school in a “segregated” classroom with other disabled children. As a result, he was provided
with limited opportunities for mainstreaming, because he attended only lunch, gym, and recess with nondisabled students.
57. 700 F.2d at 1063.
58. 874 F.2d 1036 (5th Cir. 1989).
59. Greer v. Rome City, 950 F.2d 688 (11th Cir. 1991). See also Bd. v. Holland, 14 F.3d 1398 (9th Cir. 1994). It may also be noteworthy
that in Daniel R.R. itself, the court refused to grant relief to the plaintiffs.
60. J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d, 606, 640 (S.D.N.Y. 2011) (citations omitted).
61. U.S. DEP’T OF EDUCATION, 37TH ANNUAL REPORT TO CONGRESS ON THE IMPLEMENTATION OF THE
INDIVIDUALS WITH DISABILITIES EDUCATION ACT, 2015 (Dec. 2015), available at
https://www2.ed.gov/about/reports/annual/osep/2015/parts-b-c/37th-arc-for-idea.pdf.
62. 20 U.S.C. § 1412(a)(3)(A).
63. 20 U.S.C. § 1412(b)(1)(C).
64. 20 U.S.C. § 1413(a)(3); 34 C.F.R. § 300.382. Congress believed that the in-service training would gradually increase knowledge of
special education needs, and thus would increase the accuracy of referrals and reduce the need for screening on the assessment staff. Id.
65. 20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.344.
66. Shirley L. Porterfield & Timothy D. McBride, The Effect of Poverty and Caregiver Education on Perceived Need and Access to Health
Services Among Children with Special Needs, 97 AM. J. PUB. HEALTH 323, 323–24 (2007); U.S. DEP’T OF EDUCATION, supra note 61.
67. Scott E. Huebner & Kelly Gould, Multidisciplinary Teams Revisited: Current Perceptions of School Psychologists Regarding Team
Functioning, 20 SCH. PSYCHOL. REV. 428 (1991); William H. Clune & Mark H. Van Pelt, A Political Method of Evaluating the Education
for All Handicapped Children Act of 1975 and the Several Gaps of Gap Analysis, 48 LAW & CONTEMP. PROBS. 7, 57 n.239 (1985).
68. Margaret Condit, Remember the IDEA: A Call for Courts to Apply a Piecemeal Approach to Transition Litigation, 38 T. JEFFERSON L.
REV. 6, 23 (2015) (reporting studies showing about a 50% participation rate by students).
69. Anthony K. VanReusen et al., I PLAN: Helping Students Communicate in Planning Conferences, 22 TEACHING EXCEPTIONAL
CHILDREN 30 (1990); DENNIS A. DENOMME, IMPROVING THE IEP PROCESS: STRATEGIES FOR INCREASING THE
ACTIVE INVOLVEMENT OF JUNIOR HIGH REGULAR CLASSROOM TEACHERS, PARENTS, AND STUDENTS IN THE
DECISION-MAKING PROCESS AND IEP DEVELOPMENT (1995). Note also that a student over age 18 (or 19 or 21, depending on
the state) holds independent educational rights unless the court has awarded guardianship to the parents or another designee.
70. 20 U.S.C. § 1414(a)(2)(B)(i–ii).
71. 20 U.S.C. § 6303a1 (requiring “at least a moderate level of evidence that the program will have a statistically significant effect on student
outcomes”)..
72. 20 U.S.C. § 1414(d)(1)(A)(i)(III).
73. Gordon, supra note 54, at 218.
74. 20 U.S.C. § 1412(a)(15)(A)(ii).
75. 34 C.F.R. § 200.13(D)(ii).
76. 20 U.S.C. § 1414(d)(1)(A)(i)(VI)(aa).
77. Services are drawn from the schools, but recommendations also sometimes include external referrals to mental health programs, raising
transportation and scheduling issues for low-income parents. Some schools have responded by creating school-based mental health programs
covered by Medicaid or other insurance. Boston Area School-Based Behavioral Health Collective, Overview of School-Based Behavioral Health
Programs in Partnership with the Boston Public Schools 1, 15, 96 (2014–15), available at http://cbhmboston.com/wp-
content/uploads/2015/04/BPS-Collaborative-Program-Overview-Final-April-20152.pdf.
78. Richard L. Sparks & Benjamin J. Lovett, Objective Criteria for Classification of Postsecondary Students as Learning Disabled, 42 J.
LEARNING DISABILITIES 230, 232, 239 (2009).
79. Id.
80. 20 U.S.C. §§ 1414(d)(1)(A)(i)(I)–(VIII).
81. See generally 20 U.S.C. § 1400.
82. 34 C.F.R. § 300.532(f).

1142
 83. 20 U.S.C. § 1412(a)(6)(B).
84. Id.
85. Clune & Van Pelt, supra note 67, at 11.
86. 20 U.S.C. § 1415(b)(1).
87. 20 U.S.C. § 1415(f).
88. Clune & Van Pelt, supra note 67, at 13; 20 U.S.C. § 1415(e)(3)(B).
89. 20 U.S.C. § 1414(a)(2), 34 C.F.R. § 300.536.
90. 20 U.S.C. § 1414(a)(2)(B).
91. See generally Families and Advocates Partnership for Education, http://www.fape.org/; Understood,
https://www.understood.org/en/school-learning/your-childs-rights/basics-about-childs-rights; https://www.understood.org/en/school-
learning/evaluations.
92. For a general treatment of this issue, see Joseph Ellis & Daniel Geller, Disciplining Handicapped Students: An Administrator’s Dilemma,
77 INT’L ASS’N SECONDARY SCH. PRINCIPALS 22, 24 (1993).
93. 420 U.S. 308 (1975).
94. 419 U.S. 565 (1975).
95. 484 U.S. 305 (1988).
96. Id. at 328.
97. Id. at 328.
98. 20 U.S.C. § 1415(k)(1)(B).
99. 20 U.S.C. § 1415(k)(1)(C). See generally Lauren Zykorie, Reauthorizing Discipline for the Disabled Student: Will Congress Create a Better
Balance in the Individuals with Disabilities Education Act (IDEA)?, 3 CONN. PUB. INT. L.J. 101, 115 (2003).
100. See 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(e). See also Igor Raykin, Due Process Protections for Public School Students Facing
Discipline, 44 COLO. LAW. 67 (2015).
101. 20 U.S.C. § 1415(k)(1)(G) (emphasis added).
102. Ellis & Geller, supra note 92, at 37.
103. Statistics in this paragraph are drawn from U.S. DEP’T OF EDUCATION, supra note 61, at xxiv, xxv, 36, 125.
104. Differences among racial groups (as defined by the U.S. Census Bureau) were also tabulated. American Indian or Alaska Native, Black
or African American, and Native Hawaiian or Other Pacific Islander children ages 6–21 had risk ratios above 1 (1.6, 1.4, and 1.6, respectively),
indicating that the children in these groups were more likely to be served than were the children in the same age group in all other racial/ethnic
groups combined. Asian and White (i.e., European American) children in this age group, as well as those associated with two or more
racial/ethnic groups, had risk ratios of less than 1.0 (0.5, 0.9, and 0.8, respectively). Id.
105. MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION AND AMERICAN LAW 10, 11,
19–23, 52–53 (1990).
106. Id. at 52–53.
107. 34 C.F.R. §§ 300.540–300.543.
108. 34 C.F.R. §§ 300.532, 300.344.
109. A particularly useful guide in this regard, and one on which we have relied in this section of the chapter, is Betsy B. Waterman,
Assessing Children for the Presence of a Disability, NICHCY NEWS DIG. 1 (1994) (disseminated by the former National Information Center
for Children and Youth with Disabilities).
110. Waterman, supra note 109, at 9–10.
111. 34 C.F.R. § 300.309(b).
112. For various versions of such checklists, see H. LEE SWANSON & BILLY L. WATSON, EDUCATIONAL AND
PSYCHOLOGICAL ASSESSMENT OF EXCEPTIONAL CHILDREN (2d ed. 1989); GERALD WALLACE ET AL.,
EDUCATIONAL ASSESSMENT OF LEARNING PROBLEMS: TESTING FOR TEACHING (2d ed. 1992).
113. WALLACE ET AL., supra note 112, at 19.
114. CHERI HOY & NOEL GREGG, ASSESSMENT: THE SPECIAL EDUCATOR’S ROLE 46 (1994).
115. Waterman, supra note 109, at 10.
116. See, e.g., Mary E. Franklin, Culturally Sensitive Instructional Practices for African-American Learners with Disabilities, 59(2)
EXCEPTIONAL CHILDREN 115 (1992).
117. For an example of how single test scores fail to capture learning and literacy, see Brian M. Hand et al., Message from the “Island Group”:
What Is Literacy in Science Literacy?, 40 J. RES. SCI. TEACHING 607 (2003). For examples of how individual constructs but not individual
scores may be germane, see Laurie E. Cutting & Terry M. Levine, Cognitive Profile of Children with Neurofibromatosis and Reading Disabilities,

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16 CHILD NEUROPSYCHOL. 417 (2010), and Miciak et al., supra note 35.
118. For an analysis of score fluctuations in the context of dimensional classifications and comorbid associations, see Lee Branum-Martin et
al., Classification and Identification of Reading and Math Disabilities: The Special Case of Comorbidities, 46 J. LEARNING DISABILITIES
490 (2012). See also JACK M. FLETCHER ET AL., LEARNING DISABILITIES: FROM IDENTIFICATION TO INTERVENTION
52–53 (2007).
119. DEBORAH P. WABER, RETHINKING LEARNING DISABILITIES 6–9, 24, 70 (2010).
120. Waterman, supra note 109, at 9.
121. For materials, see http://idea-b.ed.gov/static/modelForms.html (accessed May 2017).
122. Eugene J. Rankin & Russell L. Adams, The Neuropsychological Evaluation: Clinical and Scientific Foundations, in FORENSIC
NEUROPSYCHOLOGY: FUNDAMENTALS AND PRACTICE 83 (Jerry J. Sweet ed., 1999).

Chapter 18

1. Curt R. Bartol & Anne M. Bartol, History of Forensic Psychology, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 3, 9–10
(Irving B. Weiner & Randy K. Otto eds., 4th ed. 2014); Randy K. Otto & Kirk Heilbrun, The Practice of Forensic Psychology: A Look toward
the Future in Light of the Past, 57 AM. PSYCHOLOGIST 5, 5 (2002); Bruce Ennis & Thomas Litwack, Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom, 62 CAL. L. REV. 693, 695 (1974).
2. David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 SCIENCE 31, 31 (1988).
3. Henry J. Steadman et al., Prevalence of Serious Mental Illness among Jail Inmates, 60 PSYCHIATRIC SERV. 761, 761 (2009) (reporting
over 2 million jail bookings per year of people with serious mental disability).
4. See, e.g., Margaret A. Hagen, WHORES OF THE COURT: THE FRAUD OF PSYCHIATRIC TESTIMONY AND THE RAPE
OF AMERICAN JUSTICE (1997), for a highly critical but often flawed discussion of the expert testimony of mental health professionals.
5. Richard Bonnie, Morality, Equality, and Expertise: Renegotiating the Relationship between Psychiatry and the Criminal Law, 12 BULL.
AM. ACAD. PSYCHIATRY & L. 5, 5–6 (1984).
6. Prospects for improving the use of psychological expert testimony are discussed by David L. Faigman & John Monahan, Psychological
Evidence at the Dawn of the Law’s Scientific Age, 56 ANN. REV. PSYCHOL. 631 (2005).
7. A number of books, many listed in the Bibliography, address many of the issues discussed in this chapter.
8. In theory, such consultation could also occur when a clinician is retained or appointed by the court, but such consultation will be rare.
9. KIRK HEILBRUN, THOMAS GRISSO & ALAN GOLDSTEIN, THE FOUNDATIONS OF FORENSIC MENTAL
HEALTH ASSESSMENT 135-137 Tbl. 4.6 (2009) (listing 38 principles, 6 of which are relevant to this topic). See also Allen K. Hess,
Accepting Forensic Case Referrals: Ethical and Professional Considerations, 29 PROF. PSYCHOL.: RES. & PRAC. 109 (1998); RANDY K.
OTTO ET AL., ETHICAL ISSUES IN FORENSIC PSYCHOLOGY PRACTICE 82-108 (2017).
10. Stanley L. Brodsky & Norman G. Poythress, Expertise on the Witness Stand: A Practitioner’s Guide, in PSYCHOLOGY,
PSYCHIATRY AND THE LAW: A CLINICAL AND FORENSIC HANDBOOK 389, 391 (C.P. Ewing ed., 1985).
11. Robert I. Simon & Daniel W. Shuman, Conducting Forensic Examinations on the Road: Are You Practicing Your Profession without a
License?, 27 J. AM. ACAD. PSYCHIATRY & L. 75 (1999) (noting that failure to meet local practice requirements may result in
disqualification to testify, civil and criminal liability, professional disciplinary action, and more); Jill A. Tucillo et al., Licensure Requirements for
Interjurisdictional Forensic Evaluations, 33 PROF. PSYCHOL.: RES. & PRAC. 377 (2002) (providing a survey of 50 state psychology
licensing boards regarding the law regulating forensic evaluations being conducted by psychologists not licensed in the state); Robert L. Sadoff
& Frank M. Dattilio, Interstate Practice, in HANDBOOK OF FORENSIC ASSESSMENT 649 (Eric Y. Drogin et al. eds., 2011) (listing
and summary of state and provincial psychology practice statutes relevant to interstate practice).
12. Alfred M. Freedman & Abraham L. Halpern, The Psychiatrist’s Dilemma: A Conflict of Roles in Legal Executions, 33 AUSTL. & N.Z. J.
PSYCHIATRY 629 (1999).
13. Allen K. Hess, Serving as an Expert Witness, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 521, 532 (Allen K. Hess &
Irving B. Weiner eds., 2d ed. 1999).
14. Id. at 533.
15. OTTO ET AL., supra note 9, at 60-81.
16. See, e.g., Doe v. Roe, 93 Misc. 2d 201, 400 N.Y.S. 668 (1977); MacDonald v. Clinger, 84 App. Div. 2d 482, 446 N.Y.S. 801 (1982).
17. Thomas G. Gutheil & R.I. Simon, Attorneys’ Pressure on the Expert Witness: Early Warning Signs of Endangered Honesty, Objectivity,
and Fair Compensation, 27 J. AM. ACAD. PSYCHIATRY & L. 546 (1999).
18. See, e.g., Stanley L. Brodsky & Thomas G. Gutheil, Developing and Operating a Forensic Practice, in HANDBOOK OF FORENSIC
ASSESSMENT, supra note 11, at 615, 639.

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 19. See generally OTTO ET AL., supra note 9, at 177-187.
20. Note that this statement applies only to the forensic context. For reasons too complex to discuss here, keeping separate files may make
some sense when the entity to which the clinician is reporting is a managed care organization or an insurance company instead of a court.
21. See, e.g., FED. R. CIV. P. 26(b).
22. American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Including 2010 and 2016 Amendments, stds.
9.04, 9.10 (2017), available at http://www.apa.org/ethics/code/index.aspx [hereinafter Ethical Principles].
23. Id.
24. Id., std. 9.11. See Daniel Tranel, The Release of Psychological Data to Nonexperts: Ethical and Legal Considerations, 25 PROF.
PSYCHOL.: RES. & PRAC. 33 (1994); Daniel Rapp & Paul Ferber, To Release or Not to Release Raw Test Data, That Is the Question, in
HANDBOOK OF FORENSIC NEUROPSYCHOLOGY 337 (A.M. Horton & L.C. Hartlage eds., 2003).
25. SHANE BUSH ET AL., ETHICAL PRACTICE IN FORENSIC PSYCHOLOGY: A SYSTEMATIC MODEL FOR
DECISION MAKING 103 (2006).
26. See Reid J. Meloy, Psychological Test Data Protected . . . Again, CAL. PSYCHOLOGIST, Nov. 1991, at 21 (describing several cases,
including Detroit v. NLRB, 440 U.S. 301 (1979)); Bruce Frumkin, How to Handle Attorney Requests for Psychological Test Data, in
INNOVATIONS IN CLINICAL PRACTICE: A SOURCEBOOK 275 (Leon Vandecreek et al. eds., 1995). See also Standeford v. Winn-
Dixie, F.3d (5th Cir. 1995) (unpublished). As noted in § 4.04(e), even the examinee may not be able to access any results of the examination
that are considered work product, although the factual information obtained during the examination would probably be available. See 45 C.F.R.
§ 164.524(a)(1)(ii) (providing that patients do not have a right to “information compiled in anticipation of, or for use in, a civil, criminal or
administrative action or proceeding”).
27. Arguably, such feedback is required in a competence-to-proceed evaluation [see § 6.09(a)], but it is otherwise discretionary with the
clinician.
28. FED. R. CIV. P. 26(a)(2)(B).
29. Michael Karson, Ten Things I Learned about Report Writing in Law School (and the Eighth Grade), 58(3) CLINICAL
PSYCHOLOGIST 4, 6 (2005).
30. See Ethical Principles, supra note 22, std. 4.04(a) (“Psychologists include in written and oral reports and consultations, only information
germane to the purpose for which the communication is made”).
31. Karson has identified three different ways of organizing forensic reports. The “procedure-by-procedure” approach organizes information
according to the method by which it was obtained; for example, separate sections of a report would summarize findings from clinical tests,
third-party interviews, archival records, and so forth. The “issue-by-issue” approach uses discrete sections to discuss different psychological
constructs under consideration (e.g., IQ, impulse control, etc.). The clinician would pull relevant information from the different procedures to
address each issue. A third approach is sequentially addressing each of the points in the legal referral; each point is contextualized with relevant
psychological issues, which in turn are supported by data extracted from various procedures. Karson, supra note 29, at 4–5.
32. Irving B. Weiner, Writing Forensic Reports, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 711, 725–730 (Irving B.
Weiner & Randy K. Otto eds., 4th ed. 2014).
33. For additional guidelines on forensic report writing, see RANDY K. OTTO ET AL., FORENSIC REPORTS AND TESTIMONY:
A GUIDE TO EFFECTIVE COMMUNICATION FOR PSYCHOLOGISTS AND PSYCHIATRISTS 9–53 (2014); Michael Karson &
Lavita Nadkarni, PRINCIPLES OF FORENSIC REPORT WRITING (2013); GERALD H. VANDENBERG, COURT TESTIMONY
IN MENTAL HEALTH: A GUIDE FOR MENTAL HEALTH PROFESSIONALS AND ATTORNEYS (1993); Jeffrey E. Hecker &
R. Jamie Scoular, Forensic Report Writing, in HANDBOOK OF FORENSIC PSYCHOLOGY 63 (William O’Donohue & Eric Levensky
eds., 2004).
34. Irving B. Weiner, Writing Forensic Reports, in THE HANDBOOK OF FORENSIC PSYCHOLOGY 501, 517 (Allen K. Hess &
Irving B. Weiner eds., 2d ed. 1999).
35. Id. at 517–18.
36. Id. at 518.
37. FLA. R. CRIM. P. 3.211(2) requires that examiners address the defendant’s “(i) appreciation of charges, (ii) range and nature of possible
penalties, (iii) understanding of the adversary process, (iv) capacity to disclose pertinent facts to counsel, (v) capacity to behavior appropriately in
court, and (vi) capacity to testify relevantly.” Clinicians are also directed to address “any others [factors] deemed relevant.” Id.
38. A. Louis McGarry, Competency for Trial and Due Process via the State Hospital, 122 AM. J. PSYCHIATRY 623 (1965).
39. See, e.g., Robert M. Wettstein, Quality and Quality Improvement in Forensic Mental Health Evaluations, 33 J. AM. ACAD.
PSYCHIATRY & L. 158 (2005); Thomas Grisso, Guidance for Improving Forensic Reports: A Review of Common Errors, 2 OPEN ACCESS
J. FORENSIC PSYCHOL. 102 (2010).
40. In the Hinckley case, one psychiatrist submitted his findings in a 900-page report. The sheer volume might have ensured that the jurors

1145
(and lawyers) would not read or understand everything included. See RICHARD J. BONNIE, ET AL., A CASE STUDY IN THE
INSANITY DEFENSE: THE TRIAL OF JOHN HINCKLEY, JR. 5 (3d ed. 1999).
41. See supra note 30.
42. See, e.g., Ethical Principles, supra note 22, std. 9.03(c) (“Psychologists . . . include in their recommendations, reports, and diagnostic or
evaluative statements, including forensic testimony, discussion of any limitations on the data obtained”).
43. Russell C. Petrella & Norman Poythress, Forensic Evaluations for Criminal Courts—An Interdisciplinary Study (1979) (manuscript on
file with the Department of Training and Research, Center for Forensic Psychiatry, P.O. Box 2060, Ann Arbor, MI 48106).
44. Gutheil & Simon, supra note 17, at 546.
45. ERWIN P. BETTINGHAUS, PERSUASIVE COMMUNICATION (1973).
46. “The witness with the cultivated courtroom manner, rather than with the superior knowledge and greater integrity, may make the best
appearance and carry the jury. The premium thus placed on personality and patter is so great that lawyers become more interested in retaining a
good testifier than in retaining a good witness.” Andre Moenssens, The “Impartial” Medical Expert: A New Look at an Old Issue, 25 MED.
TRIAL TECH. Q. 63, 67 (1978).
47. In this situation, at the least, the other attorney should be notified. In any meeting with an attorney, clinicians should also be aware of
“allegiance” effects. See infra note 92.
48. For a discussion of primacy and recency effects in the trial setting, see Bill Kanasky, Jr., Primary and Recent Effects: The Secret Weapons of
Opening Statements, 33(3) TRIAL ADVOC. Q. 26 (2014). See generally RONALD L. APPELBAUM & KARL W.E. ANATOL,
STRATEGIES FOR PERSUASIVE COMMUNICATION (1974).
49. W. McGuire, Inducing Resistance to Persuasion, in 1 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 191 (Leonard
Berkowitz ed., 1964). See also Kipling D. Williams et al., The Effects of Stealing Thunder in Criminal and Civil Trials, 17 LAW & HUM.
BEHAV. 597 (1993).
50. For a discussion about the meaninglessness of these terms, see OTTO ET AL., supra note 33, at 165–67.
51. Brodsky & Poythress, supra note 10, at 392–94.
52. Thomas Grisso, The Differences between Forensic Psychiatry and Forensic Psychology, 21 BULL. AM. ACAD. PSYCHIATRY & L.
133 (1993).
53. Empirical studies using survey methods have documented judges’ preferences for psychiatrists over clinical psychologists, and for both of
these groups of experts over nonpsychiatric physicians, academic psychologists, social workers, and psychiatric nurses. Norman G. Poythress,
Psychological Issues in Criminal Proceedings: Judicial Preference Regarding Expert Testimony, 10 CRIM. JUST. & BEHAV. 175 (1983); A.
Daniel Yarmey & P. Karen Popiel, Judged Value of Medical versus Psychological Expert Witnesses, 11 INT’L J.L. & PSYCHIATRY 195
(1988).
54. This line of questioning may also serve an inoculating function, as described in text accompanying supra note 49.
55. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
56. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
57. FED. R. EVID. 703.
58. For a sampling of empirical studies on the relative importance of “expertise” (credentials) versus “trustworthiness,” see Michael H.
Birnbaum & Steven E. Stegner, Source Credibility in Social Judgment: Bias, Expertise and the Judge’s Point of View, 37 J. PERSONALITY &
SOC. PSYCHOL. 48 (1979); Elliott McGinnies & Charles D. Ward, Better Liked than Right: Trustworthiness and Expertise as Factors in
Credibility, 6 PERSONALITY & SOC. PSYCHOL. BULL. 467 (1980).
59. See supra note 42.
60. RONALD CLARK ET AL., CROSS-EXAMINATION HANDBOOK ch. 12 (2d ed. 2015); KENNETH POPE ET AL., THE
MMPI. MMPI-2, AND MMPI-A IN COURT: A PRACTICAL GUIDE FOR EXPERT WITNESSES AND ATTORNEYS 169–202
(3d ed. 2006); STANLEY L. BRODSKY, COPING WITH CROSS-EXAMINATION AND OTHER PATHWAYS TO EFFECTIVE
TESTIMONY (2004); Thomas Dixon & Robert Blondis, Cross-Examination of Psychiatric Witnesses in Civil Commitment Proceedings, 1
MENTAL DISABILITY L. REP. 164 (1976); Stan Twardy & V. Siomopoulos, Medical Testimony—Mental Health Proceeding—Direct and
Cross-Examination of a Defendant’s Clinical Psychologist—Part I, 23 MED. TRIAL TECH. Q. 66 (1977); Stan Twardy & V. Siomopoulos,
Medical Testimony—Mental Health Proceeding—Direct and Cross-Examination of a Defendant’s Clinical Psychiatrist—Part II, 23 MED.
TRIAL TECH. Q. 187 (1977); Raymond M. Cameron, The Mental Health Expert: A Guide to Direct and Cross-Examination, 2 CRIM. JUST.
J. 299 (1979); COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY (David Faust ed., 6th ed. 2012).
61. See, e.g., STANLEY L. BRODSKY, TESTIFYING IN COURT: GUIDELINES FOR THE EXPERT (2d ed. 2013), STANLEY L.
BRODSKY & THOMAS G. GUTHEIL, THE EXPERT EXPERT WITNESS: MORE GUIDELINES AND MAXIMS FOR
TESTIFYING IN COURT (2d ed. 2016); Brodsky & Poythress, supra note 10. See also GROUP FOR THE ADVANCEMENT OF
PSYCHIATRY, THE MENTAL HEALTH PROFESSIONAL AND THE LEGAL SYSTEM (GAP Report No. 131, 1991).

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 62. See, e.g., Irwin Perr, Cross-Examination of the Psychiatrist, Using Publications, 5 BULL. AM. ACAD. PSYCHIATRY & L. 327 (1977);
Seymour Pollack, Cross-Examination of the Psychiatrist Using Publications: Point–Counter Point, 5 BULL. AM. ACAD. PSYCHIATRY & L.
332 (1977).
63. Fred N. Diem, Evidence—The Use of Learned Treatises on Cross-Examination of a Medical Expert—Treatises Which an Expert Has Used
in His Studies Are Acceptable for the Sole Purpose of Impeaching His Testimony, 6 TEX. TECH L. REV. 237 (1974).
64. See, e.g., FLA. STAT. § 90.706.
65. Norman Poythress, Coping on the Witness Stand: Learned Responses to “Learned Treatises,” 11 PROF. PSYCHOL. 139 (1980).
66. However, they have fallen into disfavor in the past few decades. In 1975, the Federal Rules of Evidence incorporated Rule 705, which
states: “The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data,
unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.”
The first sentence of this rule was designed to abolish any “hypothetical question” requirement, which had existed in many jurisdictions as a
way of allowing the court to decide whether any part of the opinion was based on inadmissible evidence, and of ensuring that the factfinder was
aware of all the facts underlying a given opinion. The first concern has diminished in light of rules relaxing the requirements for expert data [see
§ 3.07], and the latter concern is dealt with by the second sentence of the rule. The commentary to Rule 705 states: “The hypothetical question
has been the target of a great deal of criticism as encouraging partisan bias, affording an opportunity for summing up in the middle of the case,
and as complex and time consuming. While [Rule 705] allows counsel to make disclosure of the underlying facts or data as a preliminary to the
giving of an expert opinion, if he chooses, the instances in which he is required to do so are reduced. This is true whether the expert bases his
opinion on data furnished him at secondhand or observed by him at firsthand.”
67. Hesitations (“uh,” “er”), qualifiers (“probably,” “maybe”), and intensifiers (“most certainly”) are among the features of a witness’s speech
identified as “powerless” speech (i.e., less persuasive). See Bonnie Erickson et al., Speech Style and Impression Formation in a Court Setting: The
Effects of “Powerful” and “Powerless” Speech, 14 J. EXPERIMENTAL SOC. PSYCHOL. 266 (1978); WILLIAM O’BARR, LINGUISTIC
EVIDENCE: LANGUAGE, POWER, AND STRATEGY IN THE COURTROOM (1982).
68. Stanley Brodsky, Competence on the Witness Stand: The Art of Testimony (paper presented at the Fifth Annual Symposium on Mental
Health Law, Miami, FL, April 7, 1995).
69. For descriptions of much of the research on the extent to which jurors pay attention to peripheral matters rather than content, see Tess
M.S. Neal & Margaret Bull Kovera, Harnessing the Psychology of Persuasion for Expert Witness Testimony (2015), available at
http://www.americanbar.org/content/dam/aba/administrative/litigation/materials/2015-
sac/written_materials/32_1_harnessing_the_science_of_persuasion.authcheckdam.pdf; Joseph Sanders, The Merits of the Paternalistic
Justification for Restrictions on the Admissibility of Expert Evidence, 33 SETON HALL L. REV. 881 (2003).
70. Marcus T. Boccaccini & Stanley L. Brodsky, Believability of Expert and Lay Witnesses: Implications for Trial Consultation, 33 PROF.
PSYCHOL.: RES. & PRAC. 384, 386 (2002) (in a survey of 488 community adults, more respondents (37%) indicated that they would be
more likely to believe mental health experts from their own community than experts brought in from out of state (23%)); Douglas Mossman &
M.B. Kapp, “Courtroom Whores?”—or Why Do Attorneys Call Us?: Findings from a Survey on Attorneys’ Use of Mental Health Experts, 26 J.
AM. ACAD. PSYCHIATRY & L. 27 (1998) (attorneys consider “local reputation” as an important factor in recruiting experts).
71. Boccaccini & Brodsky, supra note 70.
72. Joel Cooper & Isaac M. Neuhaus, The “Hired Gun” Effect: Assessing the Effect of Pay, Frequency of Testifying, and Credentials on the
Perception of Expert Testimony, 24 LAW & HUM. BEHAV. 149 (2000). But see Andrew W. Jurs, Expert Prevalence, Persuasion and Price:
What Trial Participants Really Think about Experts, 91 IND. L. J. 353, 389 (2016) (finding that a majority of lawyers and jurors said expert
compensation would not affect their views on expert bias).
73. Boccaccini & Brodsky, supra note 70, at 386.
74. Cooper & Neuhaus, supra note 72, at 161.
75. Scott Sundby, The Jury as Critic: An Empirical Look at How Capital Juries Perceive Expert and Lay Testimony, 83 VA. L. REV. 1109
(1997).
76. Anthony Champagne et al., An Empirical Examination of the Use of Expert Witnesses in American Courts, 31 JURIMETRICS J. 375,
377 (1991). See also Daniel W. Shuman et al., An Empirical Examination of the Use of Expert Witnesses in the Courts—Part II: A Three City
Study, 34 JURIMETRICS J. 193 (1994); Daniel W. Shuman et al., Assessing the Believability of Expert Witnesses: Science in the Jury Box, 37
JURIMETRICS J. 23 (1996).
77. See Daniel A. Krauss & Bruce D. Sales, The Effects of Clinical and Scientific Expert Testimony on Juror Decision Making in Capital
Sentencing, 7 PSYCHOL. PUB. POL’Y & L. 267, 274 (2001). See also Cooper & Neuhaus, supra note 72, at 149 (in cases involving complex,
difficult-to-understand testimony, mock jurors were most suspicious of highly credentialed experts who either were highly paid (relative to other
experts) or had more extensive histories of testifying in court; such experts were “neither liked nor believed”).
78. Jurs, supra note 72, at 389 (finding, in a survey of jurors, that 81% agreed with this statement).

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 79. Robert J. Cramer et al., A Confidence-Credibility Model of Expert Witness Persuasion: Mediating Effects and Implications for Trial
Consultation, 63 CONSULTING PSYCHOL. J: PRAC. & RES. 129 (2011); Tess M. Neal et al., Warmth and Competence on the Witness
Stand: Implications for the Credibility of Male and Female Expert Witnesses, 40 J. AM. ACAD. PSYCHIATRY & L. 488 (2012).
80. Champagne et al., supra note 76; Robert J. Cramer et al., Expert Witness Confidence and Juror Personality: Their Impact on Credibility
and Persuasion in the Courtroom, 37 J. AM. ACAD. PSYCHIATRY & L. 63 (2009); Solomon M. Fulero & Norman J. Finkel, Barring
Ultimate Issue Testimony, 15 L. & HUM. BEHAV. 495 (1991); Richard Rogers et al., Effects of Ultimate Opinions on Juror Perceptions of
Insanity, 13 INT’L J. L. & PSYCHIATRY 225 (1992).
81. Krauss & Sales, supra note 77; Phylissa P. Kwartner & Marcus T. Boccaccini, Judges’ Risk Communication Preferences in Risk for Future
Violence Cases, 5 INT’L J. FORENSIC MENTAL HEALTH 185 (2006); Brian H. Bornstein, The Impact of Different Types of Expert
Scientific Testimony on Mock Jurors’ Liability Verdicts, 10 PSYCHOLOGY, CRIME & LAW 429 (2004).
82. Compare Bernadette McSherry, Expert Testimony and the Effect of Mental Impairment: Reviving the Ultimate Issue Rule, 24 INT’L J.L.
& PSYCHIATRY 13 (2001) (arguing for prohibition of ultimate-issue opinions) with Richard Rogers & Charles Patrick Ewing, The
Prohibition of Ultimate Opinions: A Misguided Enterprise, 3 J. FORENSIC PSYCHOL. PRAC. 65 (2003).
83. Patricia A. Zapf et al., Have the Courts Abdicated Their Responsibility for Determination of Competency to Stand Trial to Clinicians?, 4 J.
FORENSIC PSYCHOL. PRAC. 27 (2004) (telephone interviews with judges, all of whom expressed the belief that mental health
professionals “are more qualified (through their specific training) to answer the question of competency than are judges or other legal
professionals,” with one judge noting that his job “would be ‘much easier’ if the mental health professional would ‘simply state whether the
defendant is competent or not’ ”).
84. See, e.g., GARY MELTON, LOIS WEITHORN & CHRISTOPHER SLOBOGIN, COMMUNITY MENTAL HEALTH
CENTERS AND THE COURTS: AN EVALUATION OF COMMUNITY-BASED SERVICES 99 (1985) (members of an advisory
committee for Virginia’s forensic evaluation “expressed a desire that such language be required in every report . . . ”).
85. Richard E. Redding et al., What Judges and Lawyers Think about the Testimony of Mental Health Experts: A Survey of the Courts and Bar,
19 BEHAV. SCI. & L. 583 (2001).
86. Id. at 586.
87. This table is adapted, with permission, from Table 2 of Redding et al., id. at 590.
88. Experience indicators included years of experience, approximate percentage of cases involving mental health issues, and approximate
percentage of cases in which a psychological evaluation had been requested. Id. at 589.
89. Id. Redding et al. did not report this association separately for the different respondent groups. If defense attorney respondents had much
more experience than the prosecutors and judges, this correlation may to some extent reflect perceptions associated with role differences rather
than merely experience.
90. See Norman Poythress, Concerning Reform in Expert Testimony: An Open Letter from a Practicing Psychologist, 6 LAW & HUM.
BEHAV. 39 (1982).
91. Brodsky & Poythress, supra note 10, at 407–08.
92. Laboratory studies of the psychology of witness behavior suggest that the mere fact of being called by one party may influence witnesses
to testify in terms that are discernible to third-party observers (e.g., mock judges) as more favorable to the side that has “called” them. D.C.
Murrie et al., Are Forensic Experts Biased by the Side That Retained Them?, 24 PSYCHOL. SCI. 1889 (2013); Neil Vidmar & Nancy
MacDonald Laird, Adversary Social Roles: Their Effects on Witnesses’ Communication of Evidence and the Assessment of Adjudicators, 44 J.
PERSONALITY & SOC. PSYCHOL. 888 (1983). This subtle effect may be enhanced by pretrial interactions with attorneys in the course of
preparing for testimony. Blair H. Sheppard & Neil Vidmar, Adversary Pretrial Procedures and Testimonial Evidence: Effects of Lawyer’s Role and
Machiavellianism, 39 J. PERSONALITY & SOC. PSYCHOL. 320 (1983).
93. FED. R. EVID. 704(b). Most states have not gone along with this change. See, e.g., FLA. STAT. § 90.703; Stringer v. Commonwealth,
956 S.W.2d 883, 891 (Ky. 1997) (stating that a majority of states follow the original version of Federal Rule 704). Of course, as noted in
Chapter 1, even the original version of Rule 704 was modified by Rule 702’s injunction that experts may only testify if they have specialized
knowledge on the topic; however, this limitation typically did not prevent experts from testifying as to a person’s sanity or competence (which
explains why the 1984 amendment was needed). For an example of a statute requiring ultimate-issue testimony, see MICH. COMP. LAWS
ANN. § 28.1043, 20a(6)(c) (examiners’ reports “shall contain . . . the opinion [of the examiner] on the issue of the defendant’s insanity at the
time the alleged offense was committed”).
94. Stephen Morse, Reforming Expert Testimony: A Response from the Tower (and the Trenches), 6 LAW & HUM. BEHAV. 45 (1982).
Morse notes that attorneys often take their business elsewhere when he informs them that he will not testify to ultimate issues.
95. See Courtland Milloy, Self-Defense Goes Insane in the City, WASH. POST, May 18, 1994, at D1 (describing Osby case, also described in
§ 1.01); Jerry C. Smith, Psychiatrist: Dahmer Suffered from “Cancer of the Mind,” UPI, Feb. 3, 1992, available at
http://www.upi.com/Archives/1992/02/03/Psychiatrist-Dahmer-suffered-from-cancer-of-the-mind/9375697093200/

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 96. James Bradley, Overconfidence in Ignorant Experts, 17 BULL. PSYCHONOMIC SOC’Y 82 (1981).
97. Joost Meerloo, Emotionalism in the Jury and the Court of Justice: The Hazards of Psychiatric Testimony, 139 J. NERVOUS & MENTAL
DISEASE 294 (1964).
98. United States v. Kristiansen, 901 F.2d 1463, 1466 (8th Cir. 1990). See also United States v. Salamanca, 990 F.2d 629, 636 (D.C. Cir.
1993) (permitting expert to state defendant had “diminished capacity”); United States v. Davis, 835 F.2d 274, 276 (11th Cir. 1988) (permitting
question about whether defendant was capable of understanding what he was doing).
99. Report of the Task Force on the Role of Psychology in the Criminal Justice System, Recommendation 5, in WHO IS THE CLIENT?
(John Monahan ed., 1980).
100. See, e.g., Richard Rogers & Charles P. Ewing, Ultimate Opinion Proscriptions: A Cosmetic Fix and a Plea for Empiricism, 13 LAW &
HUM. BEHAV. 357 (1989).
101. Thomas G. Gutheil, Assessment of Mental State at the Time of the Criminal Offense: The Forensic Examination, in RETROSPECTIVE
ASSESSMENT OF MENTAL STATES IN LITIGATION: PREDICTING THE PAST 73 (Robert I. Simon & Daniel W. Shuman eds.,
2002).
102. Id. at 94.
103. “Although judges expect, and sometimes insist, that expert opinions be expressed with ‘reasonable medical certainty,’ and although
attorneys ritualistically intone the phrase, no one knows what it means!” Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty about
“Reasonable Medical Certainty,” 57 MD. L. REV. 380, 380 (1998). See also Robert D. Miller, Reasonable Medical Certainty: A Rose by Any
Other Name, 34 J. PSYCHIATRY & L. 273 (2006).
104. In addition to the discussion of this issue in § 1.04(a) and elsewhere in this book, see, e.g., Grant Morris et al., Assessing Competency
Competently: Toward a Rational Standard for Competency-to-Stand Trial Assessments, 32 J. AM. ACAD. PSYCHIATRY & L. 231, 243
(2004) (“Mental health professionals are not expert in deciding whether the defendant has a ‘sufficient’ ability to consult with his attorney or has
a ‘reasonable’ degree of rational understanding. Those decisions are legal policy decisions appropriately within the province of the judge”);
Stewart v. State, 558 So. 2d 416, 420 (Fla. Sup. Ct. 1990) (“Once a reasonable quantum of evidence is presented showing impaired capacity, it
is for the jury to decide whether it shows ‘substantial’ impairment . . . To allow an expert to decide what constitutes ‘substantial’ is to invade the
province of the jury”).
105. The clinical staff at one state forensic hospital routinely includes the following statement in reports to the court: “The staff at [Name of]
Hospital recognize and respect that judgments regarding a criminal defendant’s competency to stand trial and criminal responsibility are to be
made by a judge or jury, not by mental health professionals. As such, our opinions should be regarded as only advisory.”
106. See Norman Poythress, Conflicting Postures for Mental Health Expert Witnesses: Prevailing Attitudes of Trial Court Judges 40–41 (1981)
(unpublished manuscript on file with the Department of Training and Research, Center for Forensic Psychiatry, P.O. Box 2060, Ann Arbor,
MI 48106).

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Index

The pagination of this electronic edition does not match the edition from which it was created. To locate a specific passage, please use the
search feature of your e-book reader or select a page number link below.

ABCAN (Advisory Board on Child Abuse and Neglect), 489–490, 500

Abuse excuse, 3
Abuse reporting statutes, 79
Abuse victims. See also Child maltreatment
adult survivors, 526–528
competence to testify, 178–179
elder abuse, 358, 525–526
evaluation of, 184–185, 189
immigration cases, 450
juvenile court, jurisdiction over, 474
testimony about, 15–16, 179–182, 187, 219–220, 502–508
Ackerman–Schoendorf Scales for Parent Evaluation of Custody (ASPECT), 552
Actuarial prediction
commitment, 16, 342
compared to structured professional judgment, 298
ethical concerns regarding, 14–15, 271
juveniles, 300–301, 474
sentencing, 14–16, 298–305
testimony about, 310–311
Actus reus. See also Automatism defense
defined, 705
testimony about, 212–214, 219–220
Ad litem. See Guardian ad litem
Addiction. See Substance abuse
Addington v. Texas, 31, 322, 326
Adjudicative process
administrative hearings, 37–38
child maltreatment, 499–502
civil proceedings, 36–37
competence to proceed evaluations, 130–134
criminal process, 32–36
need for certainty, 11–12
quasi-criminal proceedings, 38–39
therapeutic courts, 39–40
Administrative hearings, 37–38
Adoption and Safe Families Act (ASFA), 518–519

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Advance directives, 363–364, 377–379
Adversarial process. See also Expert witness(es)
definition of, 705
distinguished from inquisitorial process, 10–11
effect on mental health professionals, 342–343, 587–588, 603
resistance to, 340–342
Advertising a forensic service practice, 117
Aggravating circumstances
in capital sentencing, 279–280
in determinate sentencing, 264–265, 267
Affirmative defenses, 220–221. See also Self-defense; Provocation; Duress
Ake v. Oklahoma, 77, 281
Alcala, People v., 187
Alcohol use. See Substance abuse
Alexander and Murdock, United States v., 215
Alford, North Carolina v., 176
ALI test for insanity. See Insanity defense
Allen v. Illinois, 73–74
Alternative dispute resolution (ADR). See Mediation
Altman v. New York City Health and Hospitals Corporation, 419
Alvarez, United States v., 78
American Academy of Psychiatry and Law, 257
attorney’s presence at trial, 128
brain imaging, stance on, 249
conflicts of interest, 91
DSM-5, reliance on, 404
American Association on Intellectual and Developmental Disabilities, 279
American Bar Association
bifurcated trial (insanity cases), 75
child abuse, 488
child custody, 546–547
civil commitment, 340–341, 349, 352
competence to be executed, 189–191, 195
competence to be sentenced, 136
competence to proceed, 128, 129
death penalty exemptions, 279
hospitalization of incompetent defendants, 133
insanity defense, 72, 203–205, 208
juvenile delinquency, 462, 466
Juvenile Justice Standards and, 463, 466, 469–470, 485
prisoners, treatment of, 349
sex offender statutes, 273
American Board of Forensic Psychiatry & Neurology, 86, 716
American Board of Forensic Psychology, 86, 716
American Law Institute (ALI)
child custody, 537
insanity defense, 203–204, 206, 208–209
mens rea testimony, 214
Restatement (Third) of the Law of Torts, 389
American Medical Association
Guides to the Evaluation of Permanent Impairment, 402–403, 408–409
mental injury report format, 403

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American Orthopsychiatric Association, 6
American Psychiatric Association, 716. See also Diagnostic and Statistical Manual of Mental Disorders
attitude toward legalistic procedures, 6
civil commitment, 328
competence to be executed, 189–191
cultural defenses, 236
death penalty exemption, 275
diagnosis, relevance to law, 206–207
duty to warn/prevent harm, 80
insanity defense, 203–204, 206–208, 210, 256
intellectual disability, 279
right to remain silent, 67
risk assessment, 280, 343–344
Social Security laws, 445–447
suicide assessment, 343–344
voluntary commitment, 337
American Psychological Association, 716. See also Psychological tests
attitude toward legalistic procedures, 7
child maltreatment, 528
child testimony, 502–503
competence to proceed, 128
competence to be executed, 189–190, 191, 194
custody disputes, 531, 533–534, 549
dolls in child abuse evaluations, 524
ethical principles, 85
juvenile court, 462
test data disclosure, 582
ultimate-issue issue, 604
Working Group on Investigation of Memories of Childhood Abuse, 520
American Psychology—Law Society, 86, 716
Americans with Disabilities Act
applicant testing, 423–425
civil commitment, 330
coverage, 415–423
enforcement, 425–426
evaluation under, 427–429
least restrictive environment, 330
procedure, 425–426
rationale, 413–419
reasonable accommodation principle, 419–422
sample report, 658–661
Amnesia. See also Memory
abuse, 526
assessment of, 55–56, 59, 157
competence to proceed, 126–127
definition of, 716
dissociative disorders, 231
epilepsy, 230–231
hypoglycemia, 230–231
mental state at the time of offense, 246
procedures for recovering memory, 56–57
repressed memory and child abuse, 526–528

1152
 types, 54–55
Amytal interview. See Narcoanalysis
Anamnestic assessment, 298, 300, 475
Anatomically detailed dolls, 523–524
Andrews, Don, 285, 286, 300, 475
Andrews, United States v., 127
Antipsychotic drugs. See Psychoactive medication
Antisocial personality disorder, 730
insanity defense, 202, 208, 232
juveniles, 478
risk factor, as, 295, 300, 305–306
sexually violent predators, 224
Appeal in criminal cases
of conviction, 34
of sentence, 269
waiver, 190–191
Appelbaum, Paul, 337, 362
Arraignment, 33, 35, 171
Assessment instruments
child maltreatment, 523
clinical assessment, 47–51
competence to confess, 167–169
competence to be executed, 191–193
competence to consent to research, 382
competence to make treatment decisions, 376–377
competence to plead guilty, 172–173
competence to proceed, 141–149
custody disputes, 523
forensic assessment instruments, generally, 51–52
forensically relevant instruments, 47–51
guardianship, 361–362
insanity, 247–248
juvenile delinquency, 474
malingering, 59–62, 249
mental injury, 405–407
mental state at the time of the offense, 247–248
risk assessment, 298–305, 310
suicide risk, 344
types, 344
Atkins v. Virginia, 278–279
Attorney–client privilege
definition of, 706
duty to warn, conflict with, 80
juvenile clients, 471
MSO evaluations, 71, 77–79, 581
Attorneys. See also Attorney–client privilege; Prosecutor
capital sentencing, 192–194
civil commitment, 338–342
competence to proceed, 128–130, 134, 144, 145, 153–153
conference with, 87–88, 582–583, 587, 589–590
contracting with, 116–117, 578–580
control over defendant, 176–177

1153
 criminal process, role in, 35–36
cross-examination gambits of, 593–599
custody disputes, 530, 546–547
defense attorney, generally, 33, 35–36
desire for testimony, 50–51, 249
guardianship, 359
juvenile delinquency, 471
information source, as an, 45, 53–54, 108–109, 153, 242
perspectives, as different from clinicians’, 11–15, 35, 87, 587–588
presence during forensic evaluation, 75–76
prosecutor, role of, 35, 464–465
report writing, 586–587
right to counsel, generally, 75–78, 448
subpoenas from, 83
training of, 5, 107–110
ultimate-issue issue, 601–603
waiver of, 165, 174–176
Austin, William, 288
Automatism defense, 706
commitment after, 213
conditions which support, 212–214
distinguished from diminished capacity, 212
distinguished from insanity, 213

Barefoot v. Estelle, 34, 216, 271, 280–281

Battered-child syndrome. See also Child maltreatment
actus reus testimony, 220, 507
generally, 14–15, 493
Battered woman syndrome, 228, 782
Battering parent syndrome, 13, 223, 508
Baxter v. City of Belleville, 433
Bayesian analysis, 718
Bazelon Center for Mental Health Law, 431
Bazelon, Judge David, 6, 202, 330
Beck Depression Inventory, 18, 50
Bedder v. Director of Public Prosecutions, 222–223
Behavioral science
definition, 781
diffusion of research, 114–115
free will versus determinism, 8–9
nature of a fact, 11–15
use of in legal decision making, 3–4
Behavioral theory
as a basis for insanity defense, 258–261
generally, 8
Benjamin, John, 408
Bensel, Dr. Robert ten, 507–508
Bentham, Jeremy, 260
Berman, John, 337–338
Best-interests standard, 706

1154
 civil commitment, 341
custody, 534–536
juvenile transfer, 470
guardianship, 363–363
medication, 370
Beyond reasonable doubt, 706. See also Standard of proof
automatism, 213
death penalty, 270
sexually violent offenders, 276
trial, 32, 38, 212, 221
Bifurcated trial, 71–72
Billing for forensic services, 115–116
Blakely v. Washington, 267–270, 282
Bledsoe, People v., 220
Blinder, Martin, 410
Board of Education v. Rowley, 560–571
Board of Trustees of University of Alabama v. Garrett, 426
Bobbitt, Lorena, 200, 211
Bohmer, Carol, 284
Bonnie, Richard, 19, 125, 144–145, 173, 177, 194, 204, 211, 287
Booker, United States v., 263, 267–270, 282
Booking, 32
Bordenkircher v. Hayes, 173
Borke, Helene, 182
Bottoms, Bette, 527
Boundary spanners, 101
Brady v. United States, 173
“Brainwashing” defense, 236
Breed v. Jones, 469
Brief Psychiatric Rating Scale (BPRS), 48, 139, 409
Briere, John, 526–527
Bright v. United States, 218
Brodsky, Stanley, 191, 524, 578, 590, 599, 603
Brodzinsky, David, 552
Brooks, Alexander, 327
Brown v. Bd. Education, 556, 558
Brown v. Mississippi, 168, 170
Buchanan, Alex, 377
Buchanan v. Kentucky, 69–70
Budd, Karen, 523
Burden of proof. See also Standard of proof
automatism defense, 213
burden of production, distinguished, 212
competence to be executed, 190
competence to proceed, 131
civil commitment, 351
civil law, 36
diminished capacity, 216
generally, 11–12
insanity defense, 217–218
postinsanity acquittal hearings, 350
workers’ compensation, 390

1155
Burger, Warren, Chief Justice, 211, 321–322, 328, 469
Burton, Paul, 235

Campbell, Susan, 375

Capital punishment. See Death penalty
Carpenter, William, 381
CAST-MR, 149–151
Cavallo, New Jersey v., 219
Certification
disciplines, 86, 117
incentives to specialize, creating, 111–112
Character evidence, 875
child maltreatment cases, 506–508
criminal responsibility, 218–220
generally, 14–15
Chavez v. United States, 135
Checklist of Criteria for Competency to Stand Trial, 51–52
Chevron U.S.A. v. Echazabel, 423
Child Abuse Potential (CAP) Inventory, 552
Child and Adolescent Functional Assessment Scale, 447
Child and Adolescent Level of Care Utilization System, 447
Child custody in divorce. See Custody
Child maltreatment
adult survivors of, 526–528
definition, legal and behavioral, 490–495
disposition of abused children, 508–510
dolls, use of during evaluation of, 523–524
domestic violence, 516–518
ecological approaches to, 494–495
emergency decisions, 501–502
etiology of, 495–499
evaluation of, 521–525
expert testimony about, 504–508
foster care, efficacy of, 486, 518
history, 493
kinship care, 519–521
mediation, 511–512
mental disability in parents, 512–516
post-traumatic stress, as cause of, 405
procedure for adjudicating, 489, 499–500
procedures for hearing child testimony, 502–504
rationale for intervention, 486–490
reporting statutes, 79, 487
repressed memory about, 526–528
sample report, 681–688
special populations of, 521–529
termination of parental rights, 509–510
treatment of abused children, 499
Child offenders. See Juveniles
Children. See Custody; Child maltreatment; Children, testimony of; Juveniles

1156
Children, testimony of
child maltreatment, 502–508, 522
competence to testify, 177–185
suggestibility, 179–182
witness credibility, distinguished, 187
CHINS jurisdiction. See Juveniles
Circuit courts, 30–31
City of Cleburne v. Cleburne Living Center, 430
City of Edmonds v. Oxford House, 431
Civil commitment. See also Commitment, criminal
attorney’s role in, 340–342
clinician’s role, 354–361
conditional release, 331–332, 335–336
constitutional limitations, 320–326, 330–331
criteria, 325–330
distinguished from criminal process, 325–327
effects of commitment laws, 337–340
efficacy of hospitalization, 339–340
emergency admission, 333–334
evaluation for, 343–346
guardianship, relationship to, 335, 341
history of, 317–324
insanity defense, 200–201, 350–351
intellectually disabled, 351–352
jail and prison inmates, 349–350
least restrictive alternative, 330–331
outpatient, 331–333, 335–336
procedures, 38–39, 322–324, 333–337, 347
right to counsel, 317
sample report, 647–650
substance abuse, 347
“Thank You Theory,” 329
voluntary, 337
Civil proceedings, 36–37
Civil Rights Act, 389, 425
Clark v. Arizona, 204, 216–217
Classification of Violence Risk (COVR), 304
Clear and convincing evidence
civil commitment, 316, 322, 350, 352
distinguished from other standards, 38
juvenile court, 470
Clinical assessment instruments. See Assessment instruments
Clinical psychologists. See Psychologists
Clinician–patient privileges
child maltreatment, 80
custody disputes, 549
discovery, as bar to, 37, 581–582
generally, 80–81
mental injury cases, 389–390
waiver, 80–81
Coerced treatment, 296. See also Civil commitment; Right to refuse treatment
Coke, Sir Edward, 201

1157
Colorado v. Connelly, 166, 170
Commitment, civil. See Civil commitment
Commitment, criminal
competence to proceed restoration, 132–133, 157–159
insanity acquittees, 350–351
jail and prison inmates, 349–350
sex offenders, 272–276
Common law, 28–29, 707
Community-based evaluation and treatment. See also Outpatient commitment
community mental health centers, 77, 234
Community Mental Health Centers Act, 26, 103
forensic evaluations, 100–101, 102–106
juveniles, 470, 475–477
sentencing, 286
Competence Assessment Tool for Defendants with Mental Retardation (CAST-MR), 149–151
Competence Assessment Tool for Psychiatric Advance Directives (CAT-PAD), 378
Competence in forensic practice, ethical standards, 85–88
Competencies. See individual competence entries
Competency Assessment Instrument, 143
Competency Screening Test, 141–142
Competence to be executed, 193–194
evaluation of, 191–194
legal rules, 189–191
treatment to restore, 194–195
Competency to Be Executed Rating Instrument, 191–193
Competence to be sentenced, 135–136
Competence to confess
constitutional rules, 164–167
evaluation of, 167–170
false confessions research, 170–171
Competence to consent to research, 379–382
Competence to consent to search and seizure, 162–164
Competence to make a contract. See Guardianship
Competence to make a will. See Testamentary capacity
Competence to make treatment decisions. See also Informed consent
sample report, 647–650
standards for, 355–356, 366–368
Competence to manage affairs, 358–362. See also Guardianship
evaluation of, 360–362
legal test, 358–360
sample report, 650–654
Competence to plead guilty
legal issues, 171–174
sample report, 621–625
Competence to proceed
amnesia, 126–127, 157
burden of proof, 131
characteristics of those found incompetent, 137–139
confusion with insanity, 137, 159
counsel, role of, 128–129
diagnosis, relevance to, 137–140
disposition following incompetence determination, 131–133

1158
 distinguished from decisional competence, 121
drug-induced, 127–128
expert testimony, role of, 130–131
Fifth Amendment, application to, 68–69
frequency of evaluations for, 136–137
guidelines for evaluation, 152–157
hearing, 130–131
historic antecedents, 122
hospitalization, 131–133
immigration cases, 450–451
instruments for evaluating, 52, 141–152
intellectually disabled defendants, 149–151
juveniles, 151–152, 468–469
location of evaluation for, 130
notification before evaluation on, 93, 153
psychological testing, 156–157
quality of evaluations of, 139–140
raising the issue, 128–129
reasons for evaluation of, 129
refusal of medication, 128, 134–135
restoration of, 131–133, 157–159
sample reports related to, 608–621
screening instruments, 141–142
structured evaluation formats, 141–152
test, 124–127
therapeutic courts, requirement in, 40
trial of defendants found incompetent, 133–134
Competence to testify
distinguished from credibility assessment, 177–178, 185
legal requirements, 178–179
research generally, 179–184
research on suggestibility, 179–182
Competence to waive appeals, 191
Competence to waive counsel, 174–176
Competence to waive insanity defense, 176–177
Comprehension of Miranda—True/False measure, 168
Computer-Assisted Determination of Competency to Proceed (CADCOMP), 142
Conditional release. See Civil commitment
Conduct disorder, 720
IDEA, 560
risk factor, 306, 308
very young offenders, 482
Confessions. See Competence to confess
Confidentiality. See also Attorney–client privilege; Clinician–patient privilege; Fifth Amendment’s right to remain silent; HIPAA; Informed
consent doctrine
clinician–patient privileges, 80–81
commitment, 347
competence to proceed evaluations, 68–69
duty to notify client of rules concerning, 92–93
duty to warn, 79–80, 94
evaluation records, 159
liability for breach of, 78–79

1159
 substance abuse, 27
treatment of offenders, 287
Confrontation clause, relationship to hearsay, 64–65
Consent forms, 372–373
Conservator. See Guardianship
Consultant role of mental health professionals
Americans with Disabilities Act, 427–428
child maltreatment cases, 501
commitment proceedings, 343
competence to proceed, 159
competence to testify, 185
custody, 547
ethical implications of, 87–88
generally, 87, 579
juvenile cases, 471–472
mental state at the time of the offense, 107
Contingency-fee structures, ethical standards regarding, 88–89, 580
Continuing education, 86, 105, 110. See also Training
Convention on the Rights of the Child, 30, 467
Convention on the Rights of Persons with Disabilities, 29
Convulsive states. See Epilepsy
Coohey, Carol, 497–498
Coram nobis, 34
Counsel. See Attorney
Craig, Maryland v., 502–504
Crane, Kansas v., 275
Crawford v. Washington, 64, 504–506
Credibility of a witness
evidentiary rules, 185–189
expert testimony on, 506–508
Criminal Justice Mental Health Standards. See American Bar Association
Criminal justice system
clinician’s points of entry, 35–36
interaction with other systems, 40–41
stages of process, 32–35
Cross-examination, 593–599, 707. See also Expert witness(es)
Crossroads Apartments Associates v. Lebo, 432
Cruzan v. Missouri Department of Health, 363–364
Custody disputes
best interest standard, 534–535
battering parents, 541
children’s participation in the decisionmaking, 545–547
custody arrangements, research on, 542–545
effects of divorce, research on, 542–543
evaluation, 533–534, 548–554
father custody, 543–544
gay parents, 539, 545
grandparents, 540–541
history, 534
joint custody, 537, 544–545
military parents, 539
multinational families, 539–540

1160
 Native Americans, 540
parent education classes, 547
parents who relocate, 541–542
roles of mental health professionals, 531–533
sample report, 688–697
standards for resolution of, 534–538
tender-years presumption, 534, 714
tests, 534–539

Dahmer, Jeffrey, 200

Dangerousness to others. See also Risk assessment
actuarial prediction of, 298–309
Americans with Disabilities Act, 422–423, 429
capital cases, 280–281
civil commitment, 323–324, 326–327, 345–346
Convention on the Rights of People with Disabilities, 30
delusions, 309
difficulties of predicting, 300–303
drug dependence, 353
duty to prevent harm, 79–80
expert assistance, right to, 77
Individuals with Disabilities Education Act, 432–433
Fair Housing Amendments Act, 444, 446
formulations regarding, 310–311
insanity acquittees, 350–351
juveniles, 474
medication, 134
outpatient commitment, 331–333
overt act requirement, 321, 327
psychopathy, 303–308
race, 292
research on predicting, 293–309
sample reports, 634–649
sentencing, 290–311
sex offenders, 273–276
testimony, admissibility of, 20
ultimate issue testimony about, 17, 310–311
Dangerousness to self
Americans with Disabilities Act, 423
civil commitment, 327, 343–345
Daniel, Annaseril, 239
Daniel R.R. v. State Board of Education, 561
Daubert v. Dow Pharmaceutical
custody cases, 531
holding, 20–22
psychologist tests, 46, 144, 147, 148
sentencing, 268, 271
Davidson, Henry, 401
Davidson, Howard, 511
Death penalty, 277–281
competence to be executed, 189–194

1161
 constitutionality of, 278
dangerousness testimony, 280
intellectual disability, 278–279
juveniles, 278–279
participation in evaluation and treatment, 194–196
procedures, 281
substantive criteria, 279–281
Defense attorney. See Attorneys
Defenses, criminal. See also Insanity defense
actus reus testimony, 219–220
automatism defense, 212–214
diminished capacity defense, 214–219
duress, 220–222
entrapment, 223
“guilty but mentally ill” plea, 224–226
intoxication defenses, 223–224
mental state at the time of offense, 201–206
provocation, 220–222
self-defense, 220–222
Deinstitutionalization, 466, 558
Depositions, 36–37, 587–588, 694
Derdeyn, Andre, 538
Dershowitz, Alan, 321
Determinate sentencing. See Sentencing
Determinism, 6, 8–10, 213
Deterrence goals of sentences
goal of sentencing, 260–261
juvenile justice, 475
Developmental disabilities. See Intellectual disability
Developments in Mental Health, 112
Diagnosis, usefulness of, 18. See also Diagnostic and Statistical Manual of Mental Disorders; Mental disability
civil commitment, 320, 322–323
competence to proceed, 124–125
Individuals with Disabilities Education Act, 564, 569
insanity defense, 207, 251
mental injury, 402–403
risk assessment, 308
Social Security, 410
Diagnostic and Statistical Manual of Mental Disorders (DSM). See also specific diagnoses
Americans with Disabilities Act, 415, 428
conduct disorders, 482
culturally contingent disorder, 236, 451
depressive disorder, 236
dissociative disorder, 214, 231
epilepsy, 232
impulse disorders, 234–235
general acceptance test (Frye), 20
malingering, 62, 406
mental injury, 402–404
posttraumatic stress disorder, 233, 404–406
psychopathy, 308
relevance to legal issues, 206–207

1162
 Social Security, 437, 445
Diamond, Shari, 282
Diminished capacity defense. See also Mens rea
character evidence, 218–219
distinguished from diminished responsibility, 215
distinguished from insanity, 215
evaluation of MSO, 256–257
limitations on, 217–218
rationale, 214
recognition of nationally, 215–216
Diminished responsibility, 215
Dinwiddie, Stephen, 292
Direct Assessment of Functional Status (DAFS), 361
Direct testimony, 592–593. See also Expert witness(es)
Disability. See Mental disability
Disability determinations. See Social Security
Disciplinary procedures in education, 565–566
Discovery. See also Depositions
civil proceedings, 36–37
in criminal cases, 32–33, 71
reciprocity rule, 33, 71
self-incrimination, 71
Discrimination. See Americans with Disabilities Act; Fair Housing Amendments Act
Dissociation
automatism defense, 213–214
definitions, 327
mental state at the time of offense, 231–233
posttraumatic stress disorder, 233–234
Dissociative Experiences Scale, 232
Divorce. See also Custody disputes
effects of on children, 542–543
rates of, 530
Dix, George, 268
Doll play in assessment, 523–524
Domestic violence
child maltreatment, 519, 541
custody, 541, 550–552
immigration, 449–450
mental injury, cause of, 398
risk assessment, 302, 303, 306
Double jeopardy clause, 34, 708
Drope v. Missouri, 129
Drug addiction. See Substance abuse
Drug courts, 39–40, 135, 277
Dual roles, 91–92
Due process. See U.S. Constitution
Duhon, United States v., 132
Duress defense, 220–222
Durham v. United States, 61, 202–203, 205
Dusky v. United States, 124–125, 451, 468
Duty to protect or warn, 79–80, 94

1163
E

Ebaugh, Franklin, 408

Ebert’s Competency to Be Executed Rating Instrument, 191–192
ECT, 372
Edney v. Smith, United States ex rel., 80–81, 95
Education for All Handicapped Children Act. See Individuals with Disabilities Education Act
Edwards v. Indiana, 174–175
EEGs, 229–230
Egelhoff, Montana v., 224
Eighth Amendment. See U.S. Constitution
Elderly individuals
elder abuse, 525–526
group homes, 432
guardianship, 359–360
testamentary capacity, 386
Emergency commitment, 333–334. See also Civil commitment
Emotional abuse/neglect, child, 482–483. See also Child maltreatment
Emotional distress. See Mental injury
Empathy, use of in evaluation, 45–46, 90
Entitlement laws. See Social Security Acts
Entrapment defense, 220–222
Epilepsy
automatism defense, 213
definitions, 723
mental state at the time of offense, 227–230
research, 227–230
types, 228–229
Equal Employment Opportunity Commission (EEOC)
Americans with Disabilities Act guidelines, 415–428
enforcement duties, 425–428
Equal protection. See U.S. Constitution
Estelle v. Smith
competence evaluations, 68–69
death penalty, 72–73
Fifth Amendment implications, 68–72, 74
Miranda warnings, 75–76, 88
Sixth Amendment implications, 75–76, 88
Estroff, Susan, 309
Ethical issues, attorneys. See Attorneys
Ethical issues, mental health professionals
acknowledgement of uncertainty, 12, 77
capital cases, participation in, 194–195
child custody cases, 531–532
child maltreatment, 524–525
civil commitment, 340, 347
clarification, duty of, 887–88, 578
competence, duty of, 85–88, 578
competence to be executed, 194–195
competence to proceed, 128
confidentiality, 92–96
conflicts, duty to avoid, 89–92
contacting third parties, 54

1164
 contingency fees, 88–89, 116
dual roles, 87, 91–92, 273, 286, 500, 526, 532
duty to warn, 79–80, 92
empathy, use of during evaluation, 45–46, 90
fees, 88–89, 116, 579–580
guardian, clinician as, 363
honesty in testimony, 20, 77
mental injury evaluations, 401
notification requirements, 74, 92–94, 153, 547
privacy, protection of, 78, 92–96
professional guidelines, 85
summary of ethical commitments, 97
testimony based on inadmissible information, 63, 242
ultimate issue testimony, 10, 16–18, 280, 447, 504, 523, 528, 575
Evaluation of Competency to Stand Trial—Revised (ECST-R), 147–149
Evidence rules, 37–38, 699. See also Character evidence; Expert witness(es); Federal Rules of Evidence; Hearsay rule; Ultimate issue
capital cases, 281
civil commitment, 334
expertise, 16–19
juvenile cases, 459–460
sentencing, 268–269
workers’ compensation cases, 391
Ewing v. California, 272
Expert witness(es). See also Consultant role; Reports; Ultimate issue
allegiance effects, 603
basis of testimony, admissibility of, 62–65
battle of, 605
certification, 86, 113
criticism of, 3–4
cross-examination, responding to, 593–596
Daubert v. Merrell Dow Pharmaceutical, 20–22
definition of, 16, 709
direct testimony by, 592–593
Federal Rules of Evidence regarding, 16–19
Frye v. United States, 20–21
hypothetical questions, 597–598
impact of, 599–601
impression management, 598–599
lay attitudes toward, 601
levels of opinion testimony, 17–19
objections, responding to, 597–598
preliminary meeting with attorney, 582–583, 589–590
qualifications, 22–23, 85–87, 590–592
reasonable reliance test, 64, 591
right to state-paid, 76–78, 281, 335
social psychology of persuasion, 587–588
voir dire of, 590–592
Extreme emotional disturbance defense, 222, 227
Eyewitness testimony, witness credibility, 187–188

1165
Fabrication of symptoms. See Malingering
Fair Housing Amendments Act (FHAA) of 1988
coverage, 430–434
evaluation under, 434–435
procedure, 434
rationale, 429–430
zoning, 431–432
False confessions, 170–171
False imprisonment, 395, 397–398
Faretta v. California, 174
Faust, David, 4
Federal court system, 30–31
Federal jurisdiction, 26–27
Federal Rules of Civil Procedure, 36, 188
Federal Rules of Criminal Procedure
self-incrimination, 69–70, 188
sentencing, 283
Federal Rules of Evidence
character evidence, 218
competence to testify, 179
expert testimony, 16, 19–20
hearsay, 63–64
witness credibility, 186
Federal Sentencing Guidelines, 263, 266–267, 277
Fees
billing for forensic services, 116–117, 579–580
building a forensic service practice, 117
contingent, 88–89
ethical duty to clarify, 88–89
expert testimony, 591
Individuals with Disabilities Education Act, attorney’s fees, 564–565
incentives to specialize, 111
Feld, Barry C., 467
Fifth Amendment’s right to remain silent. See also Miranda v. Arizona; U.S. Constitution
civil commitment, 73–74, 347
civil proceedings, 74
competence to confess, 164–167
competence to proceed evaluations, 67–69, 157
insanity evaluations, 69–72
juvenile proceedings, 73
Miranda warnings, 74
preevaluation notification, 92–93
sentencing evaluations, 72–73, 259
“sex offender” proceedings, 73–74, 273
Financing forensic service systems, 112–114. See also Fees
Finkel, Norman, 204
First Amendment. See U.S. Constitution
Fitness Interview Test—Revised (FIT-R), 143
Foote, William, 427–428, 434
Forced medication. See Right to refuse
Ford v. Wainwright, 34, 189
Forensic assessment, compared to therapeutic assessment, 42–46

1166
Forensic assessment instruments. See Assessment instruments
Forensic practice
billing, 116–117
establishing, 117
specialization, 99–102
Forensic service systems
costs, 104–105
director of, 112
establishing, 106–114
personnel, 107–111
types of evaluation systems, 104–106
Foster care. See also Child maltreatment
adequacy of, 486, 520–521
kinship care, compared to, 519
prevalence, 515, 518
when triggered, 509–510, 581
Foucha v. Louisiana, 274–275, 351–352
Fourteenth Amendment (due process, equal protection). See U.S. Constitution
Fourth Amendment. See U.S. Constitution
Foust, Larry, 330
Franklin v. U.S. Postal Service, 423
Free will versus determinism, 8–9
Freedom of choice, ethical standards, 94–95
Frendak v. United States, 176–177
Freud, Anna, 588, 536
Frith’s Case, 123
Frumkin, Bruce, 169
Frye v. United States, 20–23
character testimony, 219
hypnosis or drug-induced statements, 62
sentencing, 268, 271
third-party information, 63
Fugue state. See Dissociation
Fukunaga, Kenneth, 237–239
Furman v. Georgia, 278

Gambling, pathological, 4–4, 206, 235

Gangs, 309, 478–479
Garbarino, James, 494, 496
Garrett, Brandon, 171
Gay parents, custody disputes, 530, 539, 545
Gelles, Richard, 496
Gender comparisons
competence to proceed, 139, 151
custody disputes, 546, 539, 543–544
juvenile delinquency, 462
mental state at the time of the offense, 228
risk assessment, 296
sentencing, 282
General intent, 214, 217–218

1167
Genetic causation, 400
Georgia Court Competency Test, 142
Godinez v. Moran, 171–172, 174–175, 177
Goffman, Erving, 375
Golding, Stephen, 129, 133, 136, 139, 143–144
Goldstein, Abraham, 209
Goldstein, Joseph, 526
Gore v. Shalala, 421
Gorshen, People v., 198
Goss v. Lopez, 565
Gowensmith, W. Neil, 238–240
Grand jury, 33, 36, 64
Grandparents, custody disputes, 540–541
Greene, Roger, 60–61
Grigson, Dr. James, 68, 295
Grisso, Thomas, 47, 52, 86, 104, 114, 141, 150–151, 167–168, 362, 375–377, 468–469, 473
Group for the Advancement of Psychiatry (GAP)
competence to proceed, 125–126
sex offender statutes, 273
Group-to-individual decisionmaking, 13–14
Guardian ad litem
commitment, 340–341
custody disputes, 546, 548
definition of, 709
Guardianship
advance directives, 363–364
best interests test, 363
commitment, 335, 348, 351
evaluation, 360–362
sample report, 650–655
standards for determining need for, 371–373
types of, 357–259
when permitted, 359–360
who may serve, 362–363
Gudjonsson Suggestibility Scales, 169
Guides to the Evaluation of Permanent Impairment, 402–403, 408–409
Guilty but mentally ill, 224–226
Guilty plea, competence to plead, 171–174

Habeas corpus, 34, 224

Habitual offenders, 271–272
Hale, Sir Matthew, 201
Hall v. Florida, 279
Hallman, State v., 219
Harris, Phillip, 239
Hays v. Murphy, 193
Hayes, State v., 135
HCR-20, 301, 302
Health Insurance Portability and Accountability Act. See HIPAA
Hearsay, 63–65, 503–504, 709

1168
Hearst, United States v., 222
Heilbrun, Kirk, 46, 51–52, 193
Heller v. Doe, 351–352
Henggeler, Scott, 476
Hickman, State v., 220
Hinckley, John, 17, 29, 200, 215, 250
HIPAA, 83–84
Hirschfield v. Stone, 159
Hoffman, Browning, 330
Hogarth, John, 263
Holdsworth, Michelle, 523
Holt v. United States, 67
Homosexuality
Americans with Disabilities Act, 415
custody disputes, 539, 545
gay panic defense, 236
Honig v. Doe, 558–559, 565, 570
Hospitalization. See Civil commitment; Commitment, criminal; Competence to proceed
Housing issues. See Fair Housing Amendments Act
Hoy, Cheri, 83
Humphrey v. Cady, 319
Hypnosis, 56
Hypoglycemic syndrome, 230–231
Hypothetical questions, 597–598, 709

Illusory correlations, 292, 725

Immaturity defense, 458
Immigration
eligibility criteria for entry, 448–451
evaluation challenges, 451–452
process, 448
Imprisonment, 32, 264–267
deterrent effect, 260, 272
formulations about, 310
history of, 260–263
life sentences, 272, 470–471
of parents, 518–519
Impulse disorders. See Gambling, pathological; Kleptomania; Pyromania
In re Blodgett, 276
In re Gault, 73, 321, 460–461, 466–467
In re Linehan, 276
In re the Mental Health of K.G.F., 342
In re Winship, 221
Incapacitation
civil commitment, 73, 315
sexually violent predator statute, 274
sentencing, 260–261, 316
Indeterminate sentencing. See Sentencing
Individuals with Disabilities Education Act
coverage, 558–562

1169
 discipline under, 565–566
evaluation under, 566–570
Individualized Education Plan (IEP), 563–569
juvenile court, 480
mainstreaming, 561–562
procedures, 562–566
sample report, 697–704
within the federal scheme, 26
Informed consent. See also Competence to make treatment decisions; Confidentiality
competence to proceed, 153
definition, 710
doctrines of, 81–82
ethical standards regarding, 92–96
guardian’s right to give, 329, 363
institutionalized patients, capacity to give, 376
liability for failing to obtain, 82
requirements for, 365–369
research on components of, 372–376
voluntary commitment, relevance to, 337
Initial hearing stage of criminal prosecution, 32
Inquisitorial process, 30, 269
Insanity defense. See also M’Naghten test
addiction, 223
American Law Institute test, 202–211, 251, 280
burden of proof, 212–212
capital sentencing, 280
causation, 207–208
characteristics of acquittees, 227–228
clinical formulations, 249–256
cognitive impairment, 208–210, 240
commitment/disposition of acquittees, 34, 200–201, 350–351
competence to waive, 176–177
dangerousness of acquittees, 201
deific decree test, 209–210
diagnosis, usefulness of, 207, 227–236
dissociative states, 205–206, 231–233
distinguished from competence to proceed, 124
epilepsy, 227–230
evaluation of, 240–249
faking, 200
Federal Rules of Evidence, 17–18
freedom of choice to participate in evaluations of, 93–94
frequency raised, 200
guilty but mentally ill plea, 224–225
history of, 201–205
impulse disorders, 234–235
intoxication, 223–224
irresistible impulse test, 202, 210, 255–256
juvenile court, 469
legal tests, 201–211
mental disease or defect requirement, 205–207
M’Naghten, 6, 17–18, 202–205, 208–210

1170
 multiple personality disorder (DID), 213–214
myths surrounding, 199–201
notification before evaluation on, 94
partial delusion test, 209
pathological gambling, 206, 235
personality disorders, 206
product (Durham) test, 6, 202–204, 205, 207
psychological tests, 247–249
psychoses, 227
rationale, 199
reliability and validity of clinical opinion about, 237–240
right to counsel, 75–78
sample reports, 626–634
state-paid evaluation required, 76–78
success rate of, 200
“temporary” insanity, 204–205
volitional impairment, 210–211, 240, 255–256
wild beast test, 201–202
Insanity Defense Reform Act of 1984, 29, 204
Institutional Review Boards, 379
Instruments. See Assessment instruments
Intellectual disability
Americans with Disabilities Act, 415
civil commitment, 325, 351–352
competence to confess, 169–170
competence to plead guilty, 173
competence to proceed, 149–151, 157
competence to testify, 179, 181–182
custody, 513–514
definition, 725
education, 559
insanity defense, 205, 206, 252
mens rea defense, 257
zoning laws, 431–432
Intent. See mens rea
Interdisciplinary Fitness Interview (IFI), 143–144
International law, 29–30
Interrogatories, 36
Interview Checklist for Evaluations of Competency for Execution, 192–194
Intimate partner violence. See Domestic violence
Intoxication defenses, 223–224
Invasion of privacy, evaluation, 95–96
Involuntary behavior. See Automatism defense
Involuntary hospitalization. See Civil commitment
Involuntary intoxication, 224
IQ
capital sentencing, 279
civil commitment, 352
competence to confess, 168
definition, 725
Individuals with Disabilities Education Act, 559
Irresistible impulse test, 202–204, 210–211, 213, 256

1171
Irving Independent School District v. Tatro, 561

Jackson v. Indiana, 131–133, 157–158, 190, 319

Jacob, Theodore, 514
Jaffe, Richard, 374
Jaffee v. Redmond, 81
Jarvik, Lissy, 241–242
Jenkins v. United States, 22
Joint custody, 517, 537–538, 544–545, 710
Jones v. United States, 350–351
Judges
attitude toward social science expertise, 11, 51, 114–115, 154, 271, 283–284, 318
child testimony, 546
competence to proceed evaluations, control over, 130–131
evaluation of expert testimony, 20, 83, 207, 239–240, 299, 531, 587, 592, 601
federal, 30–31
immigration, 448
involvement in forensic system, 107
juvenile court, 459, 478
presentence report, 278, 284
sentencing, goals in, 266–267, 269, 282
specialized courts, 39
state, 30–31
training of, 109–110, 114–115
ultimate-issue issue, 602–603
Jury, 16–17, 30, 32, 33–34, 36
administrative proceedings, 37
civil commitment, 317, 334
civil proceedings, 37
credibility, assessments of, 186, 188, 506–507
dangerousness testimony, influenced by, 216, 281
definitions related to, 697, 698
expert influence on, 598–601
guardianship, 359
guilty but mentally ill cases, 225–226
insanity, assessments of, 204
juvenile court, 460, 465
right to refuse medication, 370
selection of, 33, 87
sentencing, 266–267, 270, 281
statistical evidence, understanding of, 14–15
tort cases, 395
workers’ compensation cases, 395
Juvenile Adjudicative Competence Interview (JACI), 151
Juvenile court, 38. See also Juveniles
evaluation for, 472–482
history and rationale, 457–463
jurisdiction, 463–464
procedure, 464–465
reform of, 465–467

1172
 sample report, 674–681
self-incrimination, 73
sentencing, 308
status offenses (CHINS, PINS), 463–464
transfer to adult court, 461, 464
treatment amenability evaluations, 469–471
Juvenile Justice Standards. See American Bar Association
Juveniles. See also Child custody; Child maltreatment; Individuals with Disabilities Education Act; Juvenile court
amenability to treatment, evaluation of, 469–471
Causes and Correlates study, 478, 480
commitment, 322–324, 348
competence to confess, 168–169
competence to make treatment decisions, 375
competence to proceed, 151–152, 468–469
competence to testify, 178–184, 505
death penalty, 278–279
immaturity defense, 458
sample report (transfer), 674–681
sex offenders, 482–483
Social Security, 441–443, 447
status offenders, 483–484
treatment alternatives, 474–477
very young offenders, 482
youthful offender sentencing, 276–277

Kaczynski, Theodore, 177

Kansas v. Crane, 275
Kansas v. Hendricks, 272, 275–276, 326, 351–353
Katz, Jay, 365–366, 375
Kayla’s Law, 517–518
Kempe, Henry, 493
Kendra’s Law, 331–332
Kent v. United States, 459–460
Kidd, Robert, 14
Kiesler, Charles, 339–340
Kinship care, 519–521. See also Foster care
Kleptomania, 204, 211, 235, 415
Kumho Tire Co. v. Carmichael, 21–22

LaFave, Wayne, 177

Laudet, Alexander, 515
Lawrence v. Texas, 539
Lawyers. See Attorneys
Learned treatise cross-examination tactic, 595–596, 710
Least detrimental alternative, custody disputes, 536
Least restrictive alternative doctrine
commitment, 316, 325, 330–331
guardianship, 357–358

1173
 Individuals with Disabilities Education Act. 561–562, 566
juvenile justice, 466
medication, 376
outpatient commitment, 331
Legal systems
administrative, 37–38
civil, 37–37
courts, 28–29, 30–40
criminal, 32–36
federal versus state, 26–27, 30–32
international, 29–30
legislative, 27–28
Lessard v. Schmidt, 73, 319–320, 325, 328
Level of Service Inventory—Revised (LSI-R), 285, 300
Liability, professional. See Malpractice
Licensure of mental health professionals, 27
Lidz, Charles, 297
Lilly, Graham, 186
Lindstrom, United States v., 186–187
Linehan, In re, 276
Lipsey, Mark, 285, 475
Lockett v. Ohio, 279–280
Loebach, Minnesota v., 219–220, 508
Loftus, Elizabeth, 527–528
Luckey, James, 337–338

MacArthur Competence Assessment Tool—Criminal Adjudication (MacCAT-CA), 144–147, 151, 172, 469
MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR), 382
MacArthur Competence Assessment Tool for Treatment Decisions (MacCAT-T), 376–377, 382
MacArthur Research Network on Mandated Treatment, 337
MacArthur Foundation Research Net- work on Mental Health and Law
competence to consent to research, 382
competence to make treatment decisions, 373–374, 376
competence to plead guilty, 172
competence to proceed, 144–147, 469
risk assessment, 304, 307
MacDonald v. United States, 203
Magura, Stephen, 512
Mainstreaming in education, 561–562, 570
Malingering and response style
competence to proceed, 126–127, 148
definition, 241
detection of, 57–62
distinguished from credibility assessment, 188
feigned thought disorder, 58–60
juveniles, 472
mental injury cases, 392, 404–406
mental state at the time of the offense (insanity), 233, 246, 247–248
psychological testing, 59–61
reasons for, 45

1174
 Social Security, 441
types of, 57
workers’ compensation, 392
Malpractice
breach of confidentiality, 78–81
failure to obtain informed consent, 81–82, 365
failure to prevent harm, 779–80
negligent misdiagnosis, 82–83
Management of forensic service systems, 112
Marble, United States v., 176–177
Marbrunak, Inc. v. City of Stow, 432
Marketing forensic practices, 117
Maryland v. Craig, 502–504
McGarry, Louis, 129
McKaskle v. Wiggins, 175
McLeod, Kayla, 518
Mediation
Americans with Disabilities Act, 452–426
child maltreatment, 511–512
custody disputes, 530–533
Medical model, 203, 205, 319–320, 384, 485
Medicare/Medicaid, 26, 318
Medication. See Psychoactive medication
Medina v. California, 131
Melton, Gary B., 101, 104
Memory. See also Amnesia
child witnesses, 179–182
repressed, 526–528
Mendenhall, United States v., 729
Menendez brothers, 236
Mens rea. See also Diminished capacity
definition, 711
intoxication defenses, 223–224
Model Penal Code approach to, 214–215
Mental disability. See also Diagnostic and Statistical Manual of Mental Disorders; specific diagnoses
Americans with Disabilities Act, 415–418
Fair Housing Amendments Act, 430–431
guardianship, 359–360
Individuals with Disabilities Act, 564
insanity defense, 205–209
Social Security, 435–444
workers’ compensation, 392–394, 402–406
tort law, 402–406
Mental health courts, 39–40, 284
Mental health professionals. See also Expert witness(es)
child maltreatment, 489–490, 499–512, 524–525
civil commitment, 342–343
clarifying, 89–92
communication gap with lawyers, 5–7
compared to lawyer roles, 8–16
criticism of, 3–4
custody disputes, 539–543

1175
 discrimination statutes, 412
Individuals with Disabilities Education Act, 546
immigration, 448–449
juvenile court, 458–459, 467–472, 484–485
qualifications for legal participation, 16–23
risk assessment, 290
sentencing, 270–271, 284–285
therapeutic vs. forensic, 5–7, 42–46
training, 5–6
Mental Hygiene Legal Service, 334
Mental illness. See Mental disability
Mental injury
causation, 394, 399–400, 407–408
clinical evaluation, 400–410
sample report, 654–657
tort law, 397–399
workers’ compensation, 392–394
Mental Measurements Yearbook, 49
Mental status examination, 58, 154, 446
Mentally disordered sex offender (MDSO), 272. See also Sex offenders
Minnesota Multiphasic Personality Inventory (MMPI/MMPI-2)
Americans with Disabilities Act, 424–425
description, 727
detecting malingering, 59–60
malingering, 59–61
sentencing, 289
Social Security, 447
Minnesota Sentencing Matrix, 265
Minnesota v. Loebach, 219–220
Minors. See Juveniles
Miranda v. Arizona, 74, 164–167, 471
Misdemeanors, 32
Misdiagnosis. See Malpractice
Mitchell v. United States, 72–73
Mitigating circumstances
in capital sentencing, 280
in determinate sentencing, 264, 270–271
M’Naghten, Daniel, 202, 210, 215
M’Naghten test. See Insanity defense
Model Code of Professional Responsibility, 340
Model Penal Code
duress, 222
insanity defense, 203
mens rea testimony, 214–215, 217
protection of evaluation results, 70
provocation, 222
self-defense, 221–222
self-incrimination, 70
Model Rules of Professional Conduct, 340
Monahan, John, 185, 270, 276, 297, 346, 434
Monge, Rolf, 182
Montana v. Egelhoff, 224

1176
Mood disorders
competence to make treatment decisions, 374
competence to proceed, 158
definition, 727
insanity defense, 227, 235
mental injury, 409
suicide risk, 344
Moore, Michael, 207–208
Morrissey v. Brewer, 336
Morse, Stephen, 8, 18–20, 203, 241, 250–251, 256, 485
Mossman, Douglas, 90, 140, 342, 362
Multiple personality disorder. See Dissociation
Multisystemic treatment, 476–477. See also Treatment
Mulvey, Edward, 297, 473, 484
Myers, John E. B., 178, 181

Narcoanalysis, 56, 62
National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, 380
National Congress on Prisons and Reformatory Discipline, 262
National Institute of Child Health and Human Development, 494
National Institute of Mental Health, 297
National Medical Association (NMA), 194
National Research Council, 457, 494
Neglect, child. See Child maltreatment
Negligence
definition of, 711
infliction of emotional distress, 399
malpractice cases, 82, 365–366
mens rea testimony, 214
misdiagnosis, 82–83
Neighbors Helping Neighbors report, 489–490
New Jersey v. Cavallo, 219
Nicholson, Robert, 136, 142
No Child Left Behind Act, 557, 563
Nolo contendere, 33, 266
Norman, State v., 199
Notification prior to evaluation, 93, 96, 153, 578
Nuremburg Code, 379

O’Connor, Sandra Day, Justice, 274–275, 351, 540

O’Connor v. Donaldson, 321
O’Kon v. Roland, 219
Olmstead v. L.C. ex rel. Zimring, 330
Opinion evidence. See Expert witness(es)
Otto, Randy K., 46, 52, 523
Outpatient commitment
criteria, 327, 328
definitions related to, 715

1177
 procedure, 335–336
risks of, 344–345
types, 331–333
Outpatient evaluations
competence to proceed, 159
systems of, 103–106

Painter v. Bannister, 535

Palmer v. Circuit Court, 422
Palmore v. Sidoti, 532, 539
Panetti v. Quarterman, 190–192
Pantle, Mark, 200
Parens patriae doctrine (paternalism)
child maltreatment, 486
civil commitment, 315, 318–323, 353
competence to make treatment decisions, 326
definition, 161, 712
guardianship, 357
history, 161
impact on hospital population, 338
juvenile court, as basis for, 459, 463
sample report, 647–649
self-harming conduct, 327–328
substance abuse, 353
Thank-you Theory, 329–330
treatment required by, 329
Parenting. See Child maltreatment
Parham v. J.R., 322–323, 348
Parke, Ross, 493–494
Parole proceedings, 34–35, 712
abolition, 268
competence during, 135
conditional release, analogy to, 336
definition, 712
due process, 336
juveniles, 276–277
sentencing, 262–263, 267–268
Pasewark, Richard, 200, 237
Pate v. Robinson, 128
Pathological gambling, 235
Pathological intoxication, 224
PCL-R, 289, 308
Peel, Robert, 202, 210
Peers, effect on juvenile delinquency, 478–479
Peer review
expert testimony, 21
quality assurance, 105
Pelton, Leroy, 496, 498
Perry v. Louisiana, 195
Personality Assessment Inventory (PAI), 407

1178
Personality disorders
civil commitment, 325
custody, parent with,550
definition, 730
guilty but mentally ill, 227
insanity defense, 203, 206, 227, 238
sentencing, 273
sex offenders, 275
Petrila, John, 431
Phillips, Michael, 237–238
Physicians
as mental health experts, 22
capital cases, 194
informed consent, 365
mental injury cases, 401–403
Piaget, Jean, 182
Plea bargaining
competence to proceed, 128, 171–174
definition of, 33, 712
insanity cases, resolved by, 200
juvenile cases, 470
sentences, impact on, 266, 282
Plea hearing. See Arraignment
Poddar, People v., 215
Police power
civil commitment, as basis for, 315, 326, 329
drug abuse commitment, as basis for, 353
right to treatment under, 329
Polygraph evidence, 62
Posttraumatic stress disorder
definition, 732
insanity defense, 232–234
tort suits, 403–405
workers’ compensation, 403–405
Potomac Group Home Corporation v. Montgomery County, 432
Pound, Dean Roscoe, 459
Power of attorney, 376, 699, 827
Poythress, Norman, 6–7, 104, 139, 237–239, 469
Pregnant and Postpartum Women and Infants Program of the CSAP, 515
Preliminary hearings, 33, 64
Preliminary report, 582–583
Premeditation. See Mens rea
Premenstrual syndrome defense, 236
Preponderance of evidence. See also Standard of proof
affirmative defenses, 221
civil commitment, 322
competence to proceed, 131
definition, 12, 38, 712
insanity defense, 211
tort cases, 391
Presentence investigation, 269–270, 282–283
Presumption

1179
 definition, 712
of competence, 128, 131
of competence to testify, 178
of disability, Americans with Disabilities Act, 417–418, 441
of immaturity, in juvenile cases, 358, 458
of innocence, 14–15, 712
of mainstreaming, Individuals with Disabilities Education Act, 562, 565
of sanity, 212
tender years, 534
Pretrial conference, 589–590
Pretrial detention, 32, 274
Primary-caregiver rule, 536–537
Principles of the Law of Family Dissolution, 537
Prior relationships, ethical standards regarding, 89–92
Prisoners
Fifth Amendment rights, 73
transfer to hospital, 349
treatment, right to, 349
Privacy of examinee, 95–97. See also Confidentiality
Privilege against self-incrimination. See Fifth Amendment
Pro bono work, 89, 116–117
Probability data, as a basis for legal proof, 11–15
Probable cause
definition, 32, 162–163
civil commitment, 333–334
juvenile court, 464–465
civil commitment, 333–334
Probation
competence to proceed with hearing, 135
juvenile court, 465
role of probation officers, 34, 36, 114, 282–283, 465
sentencing, 270, 282–283
Problem-solving courts, 39–40
Product test. See Durham v. United States
Profiles. See Syndromes
Projective tests. See also Psychological testing
definitions, 733, 735
mental states, assessing with, 49
response styles, assessing with, 59
Proof, standard of. See Standard of proof
Prosecutor
charging power, 32, 33, 35, 40, 173, 266, 277
competence to proceed, capacity to raise, 129, 130
Fifth Amendment, violation of, 68, 71
juvenile transfer, 464
sentencing, role in, 266
Provocation defense, 221
Proximate cause, 396–398, 400, 713
Psychiatric advance directive (PAD), 377–379
Psychiatric injury. See Mental injury
Psychiatric nurses, 23
Psychiatric Review Technique Form (PRTF), 445–446

1180
Psychiatric Security Review Board (Oregon), 336
Psychiatrists. See also American Psychiatric Association
attitude toward paternalism, 6
attitude toward treatment refusal, 370, 372–373, 378
distinguished from psychologists, 22–23, 130, 590–591
ethical guidelines, 90, 92, 94, 128, 155
mental injury evaluations, 401–402
psychiatrist–patient privilege, 80
voir dire, distinguished from psychologist, 590–591
Psychic trauma. See Mental injury
Psychoactive medication
competence to proceed, 134–135
impact on hospitalization rates, 318
right to refuse, 134–135, 369–371
side effects, 369–370
Psychodynamic/analytic theory
child maltreatment, explanation of, 494, 499
generally, 8–9
definition, 733
insanity defense, as a basis for, 481
Psychological parent, custody disputes, 536
Psychological testing. See also Assessment instruments
Americans with Disabilities Act, 427
amnesia, 56
applicant testing, 424
clinical evaluation of mental injury, 415
competence to be executed, 192
competence to confess, 168
competence to proceed, 156–157
cultural differences, ability to measure, 289
custody disputes, 552–553
evaluation of mental state at the time of the offense, 248–249
generally, 46–52
hearsay, 62
Individuals with Disabilities Education Act, 480
malingering, capacity to assess, 58–62
mental injury cases, 401–402, 408
risk assessment, 308
Social Security, 446–447
Psychologist–patient privilege. See Clinician–patient privileges
Psychologists. See also American Psychological Association
attitudes toward paternalism, 6
child maltreatment cases, 528
custody disputes, 553–534
death penalty cases, 194
distinguished from other clinicians, 137, 140, 240, 402, 407, 590–591
ethical guidelines, 85, 90, 92, 128
psychologist–patient privilege, 80–81
qualified as expert, 22–23, 46, 101, 109, 130, 590–591
workers’ compensation, 400–401
Psychomotor epilepsy. See Epilepsy
Psychopathy

1181
 juvenile, 469, 481
sentencing, risk factor, 303, 308
sex offenders, 272–273
Psychopathy Checklist—Revised (PCL-R), 48, 289, 306, 308
Psychosurgery, right to consent or refuse, 372
Psychotherapist–patient privilege. See Clinician–patient privilege
Psychotherapy. See Treatment
Psychotropic medications. See Psychoactive medication
Public defenders. See Attorneys
Punishment, goals of, 260–261
Punitive damages, 397, 426
Pyromania, 234–235

Qualifications in forensic practice, 22–23, 85–87, 99–100

Quasi-criminal proceedings, 38–39

Raifman, Lawrence, 237–238

Rape trauma syndrome, 187, 220
Ray, Sir Isaac, 202
Reasonable accommodation principle
Americans with Disabilities Act, 414–415, 419–422, 428–429
direct threat, interaction with, 422–423
Fair Housing Amendments Act, 432–433
Reasonable medical/psychological certainty, 12–13, 590, 605–606
Recidivism. See also Risk assessment
insanity acquittees, 201
juveniles, 475–477
prediction of, 290–311
repeat offender statutes, 271, 272
sex offenders, 305
Reciprocal discovery, 71
Recording
of evaluation, 75–76, 245
of police interrogations, 241
of testator, 384
of testimony, 599
Refusal to participate
competence to proceed evaluation, 124
mental state at the time of the offense evaluation, 70, 95
IDEA evaluation, 380
Regulations, 28–29
Rehabilitation Act of 1973, 414, 422, 423. See also Americans with Disabilities Act
Rehabilitation. See also Treatment
compensation for mental injury, relevance to, 409–410
goal of juvenile court, 38, 459–461, 466–467, 47–471
goal of sentencing, 260–271, 284–287
immigration law, relevance to, 450
Rennie v. Klein, 369

1182
Repeat offenders, 271–272. See also Recidivism
Reports
fees for, 116–117, 580
foregoing, 93, 95
guidelines for writing, 584–587
Individuals with Disabilities Education Act guidelines, 569–570
jargon, use of, 587
mental injury cases, guidelines, 410
presentence, 269–270, 282–283
preliminary, 581–582
sentencing, 286–287, 310–311
samples, 607–704
Social Security cases, guidelines, 440–441, 447
self-incriminating information, exclusion of , 70–71
ultimate issue, 604–606
uses of, 46, 410, 583–584
workers’ compensation, 403
Research, experimental, consent to, 379–382
Response style. See Malingering
Restorability, competence to proceed, 131–132, 157–159
Retributive principle, 260–261, 263–272
Revocation of parole. See Parole; Sentencing
Rhode Island v. Innis, 165
Riggins v. Nevada, 127, 371–372
Right to counsel. See Attorney
Right to refuse treatment. See also Informed consent
aversive therapy, 372
ECT, 372
medication, 134–135, 195, 369–372
psychosurgery, 356, 372
Right to remain silent. See Fifth Amendment
Rigler, David, 496
Risk assessment. See also Dangerousness to others
accuracy of, 292–297
actuarial prediction, 271, 298–309
Americans with Disabilities Act, 422–423, 429
anamnestic appraisals, 309–310
AUC, definition of, 294–295
child maltreatment, 500
civil commitment, 343–346
Fair Housing Amendments Act, 432–433
history of, 292–297
instruments, 298–305
judgment errors, 291–292
sample reports related to, 634–650
sentencing, 290–311
sex offending, 304–305
suicide risk, 343–345
Risk management, 286, 297, 300–301, 308–309. See also Treatment
Robey, Ames, 51–52
Robinson, Paul, 223–224, 288
Roe v. Sugar River Associates, 433

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Roesch, Ronald, 129, 133, 136, 139, 143–144
Rogers Criminal Responsibility Assessment Scales (RCRAS), 237, 247–248
Rogers, Richard, 46, 57, 58–60, 148, 167–169, 237–239, 247–249
Rogers v. Commissioner of Mental Health, 369
Roncker v. Walter, 561–562
Roper v. Simmons, 278–279, 461
Rorschach Inkblot Technique
generally, 48, 735
response styles, assessing, 59
Rosenberg, Arthur, 129
Roth, Loren, 326, 329, 367
Rotunda, Robert, 514
Rowley, Board of Education v., 560–561
Ruggiero, Mary, 270
Rules of Evidence. See Evidence rules
Rummel v. Estelle, 272, 290

Saddler v. United States, 135, 214

Saks, Elyn, 356
Saks, Michael, 14
Scales of Independent Behavior, 447
Schacter, Daniel, 59
Schedule of Affective Disorders and Schizophrenia, 245
Schretlen, David, 60
Scientific method, contrasted with legal method, 10–16
Schizophrenia
Americans with Disabilities Act, 417, 426
competence to make treatment decisions, 374–375, 378, 381
competence to proceed, 134, 138–139
commitment, 325
mental state at the time of the offense, 227, 249
neurological basis for, 8–9
Social Security laws, 438–439, 442–443
Schmidt, People v., 209
Scofield v. Bentsen, 422–423
Scott, Charles, 55–56
Scott, Elizabeth, 462–463
Seizures. See Epilepsy
Self-defense defense, 220–221
Self-incrimination. See Fifth Amendment
Seling v. Young, 275
Sell v. United States, 127, 134–135, 195
Sellbom, Martin, 141, 169
Sentencing. See also Death penalty
assessment of treatment needs, 284–287
capital sentencing, 277–281
clinician’s impact on, 283–284
clinician’s role in, 270–271, 283–284
compared to civil commitment, 315–316
compared to disposition of insanity acquittees, 204

1184
 competence to be sentenced, 135–136
culpability assessment, 286–289
dangerousness as an aggravating circumstance, 280–281
determinate vs. indeterminate sentencing, 264–268
factors influencing, 281
Fifth Amendment, application of, 72–73
goals of, 260–261
history of, 261–273
impact of judicial philosophy on, 282
juveniles, 276–277
presentence report, 269–270, 282–283
procedures, 268–270, 281
recidivist statutes, 271–272
risk assessment, 290–311
sample reports, 634–647
self-incrimination, 72–73
sex offenders, 272–276
treatment considerations, 284–287
Sentencing commissions, 264
Sex offenders
juvenile, 482–483
mentally disordered sex offender laws, 272–274
parents as, 492
risk assessment, 304–305
sexual predator laws, 274–276
Sexual abuse. See Child maltreatment
Sexual harassment complaints, 389
Sexual Violence Risk-20 (SVR-20), 305
Sherman, Deborah, 496
Shuman, Daniel, 990, 403, 601
Sieling v. Eyman, 171–172
Simon, Rita, 204
Singleton v. Norris, 195
Sixth Amendment. See U.S. Constitution
Skipper v. South Carolina, 281
Slobogin, Christopher, 19, 173
Slobogin, Patti, 697
Social framework evidence, 185, 188, 714
Social Security Acts, 435
consultative evaluations, 444
eligibility criteria, 435–441
evaluation under, 444–447
juveniles, 441–443
procedures, 442–444
rationale, 435
relationship to discrimination claims, 452
sample report, 661–667
Social workers, psychiatric
child maltreatment cases, 489, 493
competence to proceed evaluations, 130, 137
definition, 733
juvenile court, 459

1185
 qualification as experts, 22–23
social worker–patient privilege, 80–81
Socioeconomic status
child maltreatment, 495, 496–499
domestic violence, 541
elder abuse, 462, 469
risk factor, as a, 308
sexual abuse, 495, 497–499
Sociopathic personality. See Personality disorders
Solem v. Helm, 272
Solnit, Albert, 488, 536
Soskis, David, 374
Sparr, Landy, 234
Spaulding, Willis, 385
Specht v. Patterson, 273
Special education. See Individuals with Disabilities Education Act
Specialization, 99–102, 111–112
Specific intent, 214–215
Spinetta, John, 496
Staggs, United States v., 218–219
Standard of proof
administrative hearings, 37
automatism defense, 213
civil commitment, 322
competence to proceed, 131
criminal cases, 32
definitions, 706, 712, 714
emergency commitment, 333–334
insanity defense, 211–212
standards distinguished, 316, 322
workers’ compensation, 391
State judicial system, 31
State law, contrasted with federal law, 26–27
Static-99R, 299–300, 304–305
Statistical evidence, 13–16
Status offenders,483–484
Steadman, Henry, 112, 137, 200, 204, 291, 297
Steinberg, Laurence, 462
Stock, Harvey, 139, 237–238
Stocketta v. Runyon, 419
Stone, Alan, 132, 316, 326, 329, 367
Strong Communities for Children, 490
Structured Assessment for Violence Risk in Youth (SAVRY), 301
Structured Clinical Interview for DSM-IV (SCID), 47
Structured Interview of Reported Symptoms (SIRS), 59
Structured professional judgment. See also Assessment instruments
competence to be executed, 191
competence to proceed, 145
mental state at the time of the offense, 248
risk assessment, 298
Stubblefield, United States v., 127
Subpoena duces tecum, 81, 83, 581–582, 714

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Substance use/abuse
Americans with Disabilities Act, exclusion under, 415
amnesia, caused by, 56
child maltreatment, resulting in, 496, 512, 541
civil commitment for, 326, 352–353
confidentiality of records regarding, 27
drug courts, 39
Federal Housing Amendments Act, exclusion under, 430
gambling disorder, analogous to, 235
immigration, 450
intoxication defenses, 223–224
mental state at the time of the offense, 223–224, 227, 233
pathological intoxication, 224
prevalence in jails, 39
risk assessment factor, 306, 307, 309
sentencing of drug offenders, 277
Social Security claim, as basis for, 435
Suggestibility
intellectually disabled, 169–170, 173
interrogation, of suspects during, 166, 169–170
juveniles, 170
witnesses, 179–183
Suicide. See Dangerousness to self
Sullivan v. Zebley, 441
Supplemental Security Income (SSI) program, 435. See also Social Security Acts
Suppression hearings, 35, 163
Sutton v. United Airlines, 416, 417
Symptom exaggeration and fabrication. See Malingering
Syndromes. See Diagnosis; Post-traumatic stress disorder
abused child syndrome, 15, 220, 493, 507
battering parent syndrome, 496, 508
battered spouse syndrome, 219–220, 222
false memory, 526
hypoglycemic syndrome, 230–231
misidentification syndrome, 292
neuroleptic malignant syndrome, 369, 373
premenstrual syndrome, 87
rape trauma syndrome, 187, 220
urban survival syndrome, 3
Szasz, Thomas, 316, 319, 384

Tarasoff v. Board of Regents U. Calif., 79–81, 94, 714

Temporary insanity. See Insanity defense
Termination of parental rights, 509–511, 512–513
Test of Memory Malingering (TOMM), 60–62
Testamentary capacity, 382–386
Testimony. See Children, testimony of; Expert witness(es)
Testing, psychological. See Psychological testing
“Thank You Theory” of commitment, 329
Thematic Apperception Test (TAT), 48

1187
Therapeutic courts, 39–40, 341
Therapeutic privilege, 366. See also Clinician–patient privileges
Therapy. See also Treatment
contrasted with forensic evaluation, 42–46
conflict with evaluative role, 89–92
Third-party information
admissibility of, 64, 593
assessing response styles with, 58
competence to proceed, 152
commitment, 344–345
ethical considerations, 96
guardianship, 361
mental state at the time of offense, 232, 233, 241–245
methods of obtaining, 53–54, 580–582
need for, 50, 52–53
Thompson, Ross, 497, 576
Tort doctrines, 395–397
basis for compensation of mental injury, 400–410
basis of liability for mental health professionals, 78–80, 81–83
emotional distress, tort of, 397–399
general definition, 714
history of, 388–389
workers’ compensation, comparison to, 389
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 416–417
Tracy, Justice, 201
Training
establishing a forensic service system, aspect of, 101, 105
of judges, 110
of lawyers, 5–6, 110
of mental health professionals, 5–6, 22, 23, 85–86, 101, 105, 107–111
Transfer
of juvenile, to adult court, 38, 151, 458, 464, 467, 473–475
of prisoner, to hospital, 34–35, 41, 349
Traumatic neurosis, 404. See also Posttraumatic stress disorder
Treatment. See also Competence to make treatment decisions; Competence to consent to research; Right to refuse treatment
commitment criterion, 322, 324, 328–330, 343
consent to, 81–82
effect on recidivism, 305
ethical conflicts in providing, 91, 92
goal of punishment, 260–261, 263–266
guilty but mentally ill, provided for, 225–226
hypnosis, 56
mental injury, relevance to, 409–410
of amnesia, 56
of abused children, 490, 499, 508–509, 525–525
of abusing parents, 511, 515–516
of children eligible for the Individuals with Disabilities Education Act, 558, 560–561
of individuals found incompetent to be executed, 194–195
of individuals found incompetent to proceed, 157–159
of juveniles found delinquent, 38, 469–471, 475–477
of prisoners, 34–35, 349–350
of sex offenders, 275

1188
 of youth sentenced as adults, 276
orientation of mental health professionals, as the, 6–7, 43–44
right to, 320
sentencing, as a consideration in, 284–287
therapeutic courts, 39–40, 276–277
Trial stage of criminal prosecution, 33–34
Tribe, Lawrence, 14–15
Troxel v. Granville, 540–541
“Twinkie defense,” 230

Ultimate-issue, 17–19
Americans with Disabilities Act, 428, 434
child maltreatment, 400, 504, 509, 523, 528
child custody cases, 553
civil commitment, 342
competence, criminal, 126, 173, 175
competence of witnesses, 190
credibility of witnesses, 505
dangerousness, 310–311
Federal Rules of Evidence, 16
importance of addressing, 601–604
Individuals with Disabilities Education Act, 570
insanity defense, 217, 248, 251–252
mental injury cases (torts, workers’ compensation), 391
pressure to address, 601–614
risk assessment, 310
Social Security, 447
treatment recommendations, 286–287
ways of avoiding, 604–606
Unconscious. See Psychodynamic/analytic theory
Unconsciousness. See Automatism
Uniform Marriage and Divorce Act, 535, 545
Uniform Probate Code, 360
United States Constitution
Due Process clause (substantive and procedural fairness), 27, 123, 132, 164–166, 195, 216–217, 225, 269, 275, 321–324, 349, 370, 459–460,
491, 565
Eighth Amendment (prohibition on cruel and unusual punishment), 189, 272, 278–279, 461, 558
Equal Protection (equal treatment of similarly situated groups), 27, 77, 132, 226, 278, 349, 352, 369, 430, 512–513
federalism, 27–28
Fifth Amendment (privilege against self-incrimination), 67–74, 164–167, 347
First Amendment (freedom of speech), 78, 330, 369, 475
Fourth Amendment (prohibition on unreasonable searches), 162–163
Sixth Amendment (rights to counsel, jury and confrontation), 64–65, 74–78, 123–124, 164, 174, 188, 263–265
United States v. See name of defendant
Uphoff, Rodney, 129

Vaillant, George, 514

Validity Indicator Profile (VIP), 61

1189
Victoria Symptom Validity Test, 60–61
Village of Marshall, United States v., 432–433
Vineland Adaptive Behavior Scales, 447
Violence Risk Appraisal Guide (VRAG), 301–304
Violent behavior. See Dangerousness to others; Risk assessment
Vitek v. Jones, 349
Voir dire process
of child witnesses, 85, 181, 522
of expert witnesses, 590–592, 600–601
of potential jurors, 33–34, 37
ultimate-issue issue, 603–604
Voluntariness
automatism defense, 212–214
commitment, voluntary, 337
competence to be executed, 191
confessions, 164–166, 169–170
consent to search, 163
consent to treatment, 368–369, 375–376
determinism, 8–10
guilty pleas, 171–173
intoxication, 223–224
irresistible impulse (insanity), 202–203
participation in evaluation, 44–45
participation in specialized courts, 39–40
Voluntary hospitalization, 337

Wade, United States v., 75

Waiver of
clinician–patient privilege, 81, 549
family reunification interest, 519
inadmissibility (immigration cases), 449–450
juvenile status, 458, 464; see also Juveniles
Miranda rights, 165
right to be tried while competent, 135
right to confrontation, 64
right to disclosures about treatment, 366
right to insanity defense, 176–177
right to refuse consent, 167
right to remain silent, 165
right to trial counsel, 174–175, 177
Wald, Michael, 488, 492
Walker, Laurens, 185
Washington v. Harper, 195, 370
Wechsler Adult Intelligence Scale—Revised, 86
Weithorn, Lois, 375
Wexler, David, 318, 341, 353
White, Lawrence T. 180
Whitebread, Charles, 485
Wigmore, Dean, 178
Williams, Linda, 526–527

1190
Wills, 383–384
Wilson v. United States, 126
Winick, Bruce, 371
Witnesses. See also Expert witness(es)
children as, 178–179, 505–506
competence of, 178–179
credibility of, 185–189
evaluation of, 184–185, 188–189
eyewitnesses, 187–188
Wolfe, David, 495
Wood v. Strickland, 565
Woodson v. North Carolina, 278–279
Word Memory Test (WMT), assessing response styles with, 61
Work product doctrine, 84
Workers’ compensation
causation, 394
distinguished from tort system, 389
criteria for a claim, 391–395
emotional distress, 392–394
evaluation for, 400–410
history, 389
procedure, 390–391
sample report, 654–657
Working Group on Investigation of Memories of Childhood Abuse, 528
Wyatt v. Stickney, 320

Yates, Andrea, 198, 200, 215, 250

Youngberg v. Romeo, 371–372
Youth. See Juveniles
Youth Correction Act (YCA), 276–277
Youth Level of Service/Case Management Inventory (YLS/CMI), 300–301
Youthful offenders. See Juveniles
Yutzy, Sean, 292

Zamora, Ronnie, 236

Zinermon v. Burch, 326, 337
Ziskin, Jay, 4
Zoning restrictions, 431–432

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