Denver County Jail

I am about to leave the office to conduct a presentence mental health evaluation at the Denver County Jail. As always, I am sure it will be interesting.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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Overworked Public Defenders

Here is a link to a story on NPR (you can read the transcript or listen to the audio) on the overtaxed public defender system in Missouri:

Court Urges Public Defenders To Rein In Workload

The story raises some interesting questions about the quality of representation an overworked attorney is able to provide.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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Balloon Boy's Parents Get Jail Time

According to several news sources, a Colorado judge sentenced The Heenes to probation and jail time (90 days for the dad and 30 days for the mom). In addition, the judge barred the Heenes from being able to profit from the incident.

Here is a link to a CNN.com article and video:

CNN.com Video

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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A Defendant Gets 18 Years

I just recently finished working on a case where I was attempting to provide mitigating evidence for the defense. These are always tough cases, because I want to be helpful to the attorney who hires me, but I often don't find information that is going to be of much use. Sometimes, I actually gather data that ends up being potentially harmful to the defense's position. I hate having to tell defense attorneys that, after a lot of time and money spent, I have nothing for them. But, I do it anyway.

However, in the recent case I mentioned above, I did find information that I thought would offer mitigating evidence at a defendant's sentencing hearing. This was a 19 year-old who pleaded guilty to an assault charge and was facing 10-64 years in prison. His co-defendant received 24 years, but my client received a sentence of 18 years.

I can't be sure, but I think the evidence I found and was able to testify to at his sentencing hearing affected the judge's decision. I was basically able to confirm with psychological data much of what his family members had said about him at the sentencing hearing.

18 years is still a long time, but it felt good to be able to play a part in shortening the defendant's sentence. He definitely did something very bad, but his actions were in part due to some serious mental health issues beyond his control.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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In Court For A Sentencing Hearing This Afternoon

I will be at the Jefferson County Courthouse this afternoon for a sentencing hearing. I will be testifying as an expert for the defense.

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Braving The Snow

I will be braving the snow this morning and leaving the house early to drive to the Jefferson County Jail. I am working on an evaluation to attempt to find some mitigating evidence for a defense attorney.

Disclaimer: This is not a picture of me "braving the snow." We actually only have about an inch of snow on the ground in Denver. I just thought this picture was more dramatic...

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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What Evidence Can Expert Witnesses Use?

In 1923, the U.S. Supreme Court decided the landmark case of Frye v. United States. In that case, attorneys were attempting to enter into evidence information from a polygraph test. The Court ruled that scientific evidence can be admissible if it has "gained general acceptance in the particular field to which it belongs." This is sometimes referred to as the "general acceptance" standard.

The Frye decision held until 1993, at which point the U.S. Supreme Court heard Daubert v. Merrell Dow Pharmaceuticals. In this case, the Court unanimously ruled that scientific evidence can only be admissible if it meets the following criteria:

1. It must be subject to empirical testing: the theory or technique must be falsifiable, refutable, and testable.
2. It must be subjected to peer review and publication.
3. It must have a known potential error rate.
   
4. The existence and maintenance of standards and controls concerning its operation must be in place.
5. It must, to some degree, conform to theory and technique that is generally accepted by a relevant scientific community.

In 1999, the U.S. Supreme Court further refined its ruling on admissibility of expert testimony. In Kumho Tire Co. v. Carmichael, the Court ruled that the Daubert ruling applies to the three types of knowledge mentioned in Rule 702 (Federal Rules of Evidence), scientific, specialized and technical. Psychological evidence is covered under Daubert.

It is interesting to note that, due to a 1998 ruling in United States v. Sheffer, the Court found that procedures that appear to be valid and reliable must be closely scrutinized using the Daubert standard. Most courts do not consider psychological expert testimony that involves only clinical/medical judgment (i.e., it does not involve tests or assessment procedures) to be subject to the Daubert standard. However, if a psychologist uses tests or assessment procedures that give the appearance of "infallibility," then that testimony's admissibility hinges on whether the procedures meet the Daubert standard.

So, what does this mean? Essentially, a psychologist or psychiatrist can say whatever he/she wants to about a particular case, and it can be entered into evidence as long as that testimony is only based only on the professional's clinical/medical judgment (even if that judgment is absolutely incorrect). As soon as a professional starts using tests and procedures that increase the accuracy of clinical/medical opinions, his/her testimony must be held to a higher standard.

NOTE: The standards I discussed above apply to federal cases only. Many states have adopted similar standards, and are often referred to as "Frye states" or "Daubert states." In Colorado, the decision in People v. Shreck (2001) dictates the following: "Under the standard established in this rule [Rule 702, Colorado Court Rules of Evidence, Testimony By Experts], the trial should focus on the reliability and relevance of the scientific evidence and determine the reliability of the scientific principles, the qualifications of the witness, and the usefulness of the testimony to the jury. In determining the reliability and relevance of the evidence, the court should apply a broad inquiry and consider the totality of the circumstances in each specific case, considering a wide range of factors. Because the applicable standard is so liberal, the court should also apply its discretionary authority under C.R.E. 403 to ensure the probative value of the evidence is not substantially outweighed by unfair prejudice."

In my experience, the Shreck standard allows for the vast majority of the data a psychologist or psychiatrist could produce (no matter the quality of the data) to be entered into evidence.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

@mwachtel
Facebook.com/drmaxwachtel

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Some Good News

I received word late last week that the judge in a case on which I've been working made a decision that validated the clinical/legal argument I was making about the defendant (i.e. the judge agreed with me!).

This was a contested competency hearing, and I was of the opinion that the defendant was competent to proceed. The psychologist for opposing counsel, obviously, thought otherwise.

Typically, contested competency hearings last several hours, but this one was fairly complicated and I appeared in court on four separate occasions over a period of 2.5 months. Ultimately, the judge ruled that the defendant was competent to proceed, and the rationale he gave for his ruling was similar to the reasoning I used to form my opinion.

This was a long, stressful case, and it was great to get validation from the court that I was on the right track.

NOTE: The practice of psychologists offering an opinion on the ultimate legal issue (in this case, is the defendant competent?) is controversial, and many forensic psychology experts advise that it is a dangerous practice to do so. However, in Colorado, psychologists and psychiatrists who conduct competency evaluations are required by law to offer an opinion on the competency of defendants.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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Expert Witnesses and Initial Impressions

I suppose it is no secret that people judge others based on their physical appearance. As humans, we are hard-wired to do this. What is more surprising though, is that most peoples' judgments regarding a person's personality characteristics based solely on physical appearance are reasonably accurate.

In a new study to be published in the Personality and Social Psychology Bulletin (December 2009), researchers found that participants could accurately gauge 9 out of 10 major personality characteristics of individuals by looking at photographs of them. Judgments on extraversion, agreeableness, emotional stability, likability, and self-esteem were all fairly accurate.

So, what might this mean for criminal or civil proceedings? As an attorney, you should consider the professionalism, competence and trustworthiness of your expert witnesses. But you might also want to consider some of their other personality characteristics. If your expert is likable, emotionally stable and high in self-esteem, juries could pick up on those features fairly quickly, even before your expert starts speaking. If your expert is self-conscious, nervous or unlikable, juries could figure that out quickly, too.

You might also be able to give your experts some tips on coming across as self-confident, likable and emotionally stable. Tell them to smile, sit up straight, make eye contact with the jury, and appear willing to answer any question asked of them. Tell them to speak loudly with an authoritative air, and not too quickly.

If you are working with a psychologist as an expert witness, tell him/her to leave the Birkenstocks at home and wear a real pair of shoes...

Here is a link to more information regarding this study: ScienceDaily.net

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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Why Is Daddy Going To Jail?

This morning, I made the mistake of telling my three year-old daughter that I am going to jail today. It caught me by surprise that she even knew what jail is, let alone that it is VERY BAD for one's dad to go there.

I think I set her straight by explaining that I had not done anything wrong and that I was going to go there for two hours to help someone who had done something wrong.

I am not sure if she actually believes they are going let me out this afternoon, so she should be pleasantly surprised when she sees me at home!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

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In Court This Afternoon

I will be in Denver District Court this afternoon, sitting as an advisory witness for the prosecution on a contested competency evaluation. Should be interesting.

Thanks for reading-- Maximillian Wachtel, Ph.D.
www.CherryCreekPsychology.com

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Two Interesting Articles on www.Slate.com

The first has to do with an economics graduate student who discovered that calculation errors caused some Maryland inmates to end up with significantly longer sentences than they deserved (she also discovered that some inmates received shorter sentences):

Errors In Judgment

The second has to do with using Asperger's Syndrome (a developmental disorder similar to Autism, only without the impaired verbal ability...most individuals with Asperger's have problems with obsessive behavior and a lack of social skills) as a legal defense. It sounds like some defendants have successfully used an Asperger's diagnosis to be acquitted or found not guilty by reason of insanity:
The Geek Defense: Do criminals with Aspberger's syndrome deserve special treatment?

Thanks for reading-- Maximillian Wachtel, Ph.D.
www.CherryCreekPsychology.com

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What Do Factfinders Hear Expert Witnesses Say?

When an expert speaks, what does the jury hear?

In an article published in the October 2009 edition of the journal Law and Human Behavior, researchers Dawn McQuiston-Surrett and Michael J. Saks examined "how variations in the presentation of forensic science information affect factfinders' judgments in a trial." Essentially, they looked at jurors' and judges' responses to expert testimony about matching a hair found at the scene of a murder with hair from the defendant.

Overall, as might be expected, jurors placed more emphasis on the expert testimony and used it in their verdict of guilt than judges did.

However, both judges and jurors were more impressed with expert testimony that had a strong "qualitative" feel to it. For example, if the expert said the hair "matched" the defendant or was "similar in all microscopic characteristics," judges and jurors gave that testimony a lot of weight. They gave less weight to expert testimony stating the defendant's hair was "similar to the hair found at the murder scene, although there are a number of people in the community whose hair would also have the same identifying attributes." The "match" or "similar in all microscopic characteristics" testimony sounds much more confident than the "other people have the same microscopic characteristics" approach.

So, what do you do with this information? I suppose the prosecution might want to talk to their expert about asserting their opinions in qualitative, confident ways (without distorting the truth, of course). The defense will want the expert to then discuss the limits of the forensic testing used in cross examination.

Warning for the defense: This same research study found that having experts talk about the limits of testing did not affect jurors' opinions all that much.

Warning for the prosecution: If the defendant opts for a bench trial, this study found that judges do not let the "match" or "similar in all microscopic characteristics" testimony affect their estimation of guilt as nearly as much as jurors do.

Thanks for reading-- Maximillian Wachtel, Ph.D.
CherryCreekPsychology.com
Facebook.com/drmaxwachtel
Twitter.com/mwachtel

reference:


McQuiston-Surrett, D., Saks, M. J. (2009). The testimony of forensic identification science: What expert witnesses say and what factfinders hear. Law and Human Behavior, 33(5), 436-453, doi:10.1007/s10979-008-9169-1

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