HANDBOOK OF PSYCHOLOGY...Handbook of Psychology Preface xi Irving B. Weiner Volume Preface xiii Randy K. Otto Contributors xv I NATURE OF THE FIELD 1 1 OVERVIEW OF FORENSIC PSYCHOLOGY

HANDBOOK OF PSYCHOLOGY

HANDBOOK OF PSYCHOLOGYVOLUME 11: FORENSIC PSYCHOLOGY

Second Edition

Volume Editor

RANDY K. OTTO

Editor-in-Chief

IRVING B. WEINER

John Wiley & Sons, Inc.

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Library of Congress Cataloging-in-Publication Data:

Handbook of psychology / Irving B. Weiner, editor-in-chief. – 2nd ed.v. cm.

Includes bibliographical references and index.ISBN 978-0-470-61904-9 (set) – ISBN 978-0-470-63917-7 (cloth : v. 11)ISBN 978-1-118-28190-1 (ebk)ISBN 978-1-118-28375-2 (ebk)ISBN 978-1-118-28527-5 (ebk)

1. Psychology. I. Weiner, Irving B.BF121.H213 2013150–dc23

2012005833

Printed in the United States of America10 9 8 7 6 5 4 3 2 1

Editorial Board

Volume 1History of PsychologyDonald K. Freedheim, PhDCase Western Reserve UniversityCleveland, Ohio

Volume 2Research Methods in PsychologyJohn A. Schinka, PhDUniversity of South FloridaTampa, Florida

Wayne F. Velicer, PhDUniversity of Rhode IslandKingston, Rhode Island

Volume 3Behavioral NeuroscienceRandy J. Nelson, PhDOhio State UniversityColumbus, Ohio

Sheri J. Y. Mizumori, PhDUniversity of WashingtonSeattle, Washington

Volume 4Experimental PsychologyAlice F. Healy, PhDUniversity of ColoradoBoulder, Colorado

Robert W. Proctor, PhDPurdue UniversityWest Lafayette, Indiana

Volume 5Personality and Social PsychologyHoward Tennen, PhDUniversity of Connecticut Health CenterFarmington, Connecticut

Jerry Suls, PhDUniversity of IowaIowa City, Iowa

Volume 6Developmental PsychologyRichard M. Lerner, PhDM. Ann Easterbrooks, PhDJayanthi Mistry, PhDTufts UniversityMedford, Massachusetts

Volume 7Educational PsychologyWilliam M. Reynolds, PhDHumboldt State UniversityArcata, California

Gloria E. Miller, PhDUniversity of DenverDenver, Colorado

Volume 8Clinical PsychologyGeorge Stricker, PhDArgosy University DCArlington, Virginia

Thomas A. Widiger, PhDUniversity of KentuckyLexington, Kentucky

v

vi Editorial Board

Volume 9Health PsychologyArthur M. Nezu, PhDChristine Maguth Nezu, PhDPamela A. Geller, PhDDrexel UniversityPhiladelphia, Pennsylvania

Volume 10Assessment PsychologyJohn R. Graham, PhDKent State UniversityKent, Ohio

Jack A. Naglieri, PhDUniversity of VirginiaCharlottesville, Virginia

Volume 11Forensic PsychologyRandy K. Otto, PhDUniversity of South FloridaTampa, Florida

Volume 12Industrial and Organizational

PsychologyNeal W. Schmitt, PhDMichigan State UniversityEast Lansing, Michigan

Scott Highhouse, PhDBowling Green State UniversityBowling Green, Ohio

Contents

Handbook of Psychology Preface xiIrving B. Weiner

Volume Preface xiiiRandy K. Otto

Contributors xv

I NATURE OF THE FIELD 1

1 OVERVIEW OF FORENSIC PSYCHOLOGY 3Randy K. Otto and Alan M. Goldstein

2 FORENSIC TRAINING AND PRACTICE 16Ira K. Packer and Randy Borum

3 ETHICS IN FORENSIC PRACTICE 37David A. Martindale and Jonathan W. Gould

4 LEGAL CONTOURS OF EXPERT TESTIMONY 62Steven K. Erickson and Charles Patrick Ewing

5 FORENSIC REPORT WRITING 75Richart L. DeMier

II FORENSIC EVALUATIONS IN CIVIL PROCEEDINGS 99

6 CHILD CUSTODY EVALUATIONS: CURRENT LITERATUREAND PRACTICAL APPLICATIONS 101Jonathan W. Gould and David A. Martindale

7 ASSESSMENT IN A CHILD PROTECTION CONTEXT 139Karen S. Budd, Mary Connell, and Jennifer R. Clark

vii

viii Contents

8 PSYCHOLOGICAL EVALUATION OF EMOTIONAL DAMAGES IN TORT CASES 172William E. Foote and Craig R. Lareau

9 DISABILITY AND WORKER’S COMPENSATION 201Lisa Drago Piechowski

10 ASSESSING EMPLOYMENT DISCRIMINATION AND HARASSMENT 225Nancy L. Baker, Melba J. T. Vasquez, and Sandra L. Shullman

11 FORENSIC ASSESSMENT FOR HIGH-RISK OCCUPATIONS 246David M. Corey and Randy Borum

12 FORENSIC EVALUATION IN AMERICANS WITH DISABILITIES ACT CASES 271William E. Foote

13 CIVIL COMPETENCIES 295Eric Y. Drogin and Curtis L. Barrett

14 CIVIL COMMITMENT AND INVOLUNTARY HOSPITALIZATION OF THEMENTALLY ILL 308Craig R. Lareau

15 EVALUATION AND MANAGEMENT OF SEXUAL OFFENDERS 332Mary Alice Conroy and Philip H. Witt

III FORENSIC EVALUATIONS IN DELINQUENCY AND CRIMINALPROCEEDINGS 357

16 FORENSIC EVALUATION IN DELINQUENCY CASES 359Thomas Grisso and Christina L. Riggs Romaine

17 CAPACITY TO WAIVE MIRANDA RIGHTS AND THE ASSESSMENTOF SUSCEPTIBILITY TO POLICE COERCION 381Naomi E. S. Goldstein, Alan M. Goldstein, Heather Zelle, and Lois Oberlander Condie

18 ASSESSMENT OF COMPETENCE TO STAND TRIAL 412Kathleen Powers Stafford and Martin O. Sellbom

19 EVALUATION OF CRIMINAL RESPONSIBILITY 440Alan M. Goldstein, Stephen J. Morse, and Ira K. Packer

20 SENTENCING DETERMINATIONS IN DEATH PENALTY CASES 473Mark D. Cunningham and Alan M. Goldstein

Contents ix

IV SPECIAL ASSESSMENT ISSUES 515

21 EVALUATION OF MALINGERING AND RELATED RESPONSE STYLES 517Richard Rogers and Scott D. Bender

22 VIOLENCE RISK ASSESSMENT 541John Monahan

23 CLINICAL AND FORENSIC ISSUES IN THE ASSESSMENT OF PSYCHOPATHY 556Stephen D. Hart and Jennifer E. Storey

24 CHILD SEXUAL ABUSE EVALUATIONS 579Kathryn Kuehnle and Mary Connell

V FORENSIC CONSULTATION 615

25 EYEWITNESS MEMORY FOR PEOPLE AND EVENTS 617Gary L. Wells and Elizabeth F. Loftus

26 VOIR DIRE AND JURY SELECTION 630Margaret Bull Kovera

27 TRIAL CONSULTATION 648Eric Y. Drogin and Curtis L. Barrett

Author Index 665

Subject Index 693

Handbook of Psychology Preface

The first edition of the 12-volume Handbook of Psychol-ogy was published in 2003 to provide a comprehensiveoverview of the current status and anticipated future direc-tions of basic and applied psychology and to serve asa reference source and textbook for the ensuing decade.With 10 years having elapsed, and psychological knowl-edge and applications continuing to expand, the time hascome for this second edition to appear. In addition to well-referenced updating of the first edition content, this secondedition of the Handbook reflects the fresh perspectives ofsome new volume editors, chapter authors, and subjectareas. However, the conceptualization and organizationof the Handbook , as stated next, remain the same.

Psychologists commonly regard their discipline as thescience of behavior, and the pursuits of behavioral scien-tists range from the natural sciences to the social sciencesand embrace a wide variety of objects of investigation.Some psychologists have more in common with biologiststhan with most other psychologists, and some have morein common with sociologists than with most of their psy-chological colleagues. Some psychologists are interestedprimarily in the behavior of animals, some in the behav-ior of people, and others in the behavior of organizations.These and other dimensions of difference among psycho-logical scientists are matched by equal if not greater het-erogeneity among psychological practitioners, who apply avast array of methods in many different settings to achievehighly varied purposes. This 12-volume Handbook of Psy-chology captures the breadth and diversity of psychologyand encompasses interests and concerns shared by psy-chologists in all branches of the field. To this end, lead-ing national and international scholars and practitionershave collaborated to produce 301 authoritative and detailedchapters covering all fundamental facets of the discipline.

Two unifying threads run through the science of behav-ior. The first is a common history rooted in conceptualand empirical approaches to understanding the nature ofbehavior. The specific histories of all specialty areas inpsychology trace their origins to the formulations of theclassical philosophers and the early experimentalists, andappreciation for the historical evolution of psychology inall of its variations transcends identifying oneself as a par-ticular kind of psychologist. Accordingly, Volume 1 in theHandbook , again edited by Donald Freedheim, is devotedto the History of Psychology as it emerged in many areasof scientific study and applied technology.

A second unifying thread in psychology is a commit-ment to the development and utilization of research meth-ods suitable for collecting and analyzing behavioral data.With attention both to specific procedures and to theirapplication in particular settings, Volume 2, again editedby John Schinka and Wayne Velicer, addresses ResearchMethods in Psychology .

Volumes 3 through 7 of the Handbook present thesubstantive content of psychological knowledge in fiveareas of study. Volume 3, which addressed Biological Psy-chology in the first edition, has in light of developments inthe field been retitled in the second edition to cover Behav-ioral Neuroscience. Randy Nelson continues as editor ofthis volume and is joined by Sheri Mizumori as a new co-editor. Volume 4 concerns Experimental Psychology andis again edited by Alice Healy and Robert Proctor. Volume5 on Personality and Social Psychology has been reorga-nized by two new co-editors, Howard Tennen and JerrySuls. Volume 6 on Developmental Psychology is againedited by Richard Lerner, Ann Easterbrooks, and Jayan-thi Mistry. William Reynolds and Gloria Miller continueas co-editors of Volume 7 on Educational Psychology .

xi

xii Handbook of Psychology Preface

Volumes 8 through 12 address the application of psy-chological knowledge in five broad areas of professionalpractice. Thomas Widiger and George Stricker continue asco-editors of Volume 8 on Clinical Psychology . Volume 9on Health Psychology is again co-edited by Arthur Nezu,Christine Nezu, and Pamela Geller. Continuing to co-editVolume 10 on Assessment Psychology are John Grahamand Jack Naglieri. Randy Otto joins the Editorial Boardas the new editor of Volume 11 on Forensic Psychology .Also joining the Editorial Board are two new co-editors,Neal Schmitt and Scott Highhouse, who have reorganizedVolume 12 on Industrial and Organizational Psychology .

The Handbook of Psychology was prepared to educateand inform readers about the present state of psychologicalknowledge and about anticipated advances in behavioralscience research and practice. To this end, the Handbookvolumes address the needs and interests of three groups.First, for graduate students in behavioral science, the vol-umes provide advanced instruction in the basic conceptsand methods that define the fields they cover, togetherwith a review of current knowledge, core literature, andlikely future directions. Second, in addition to serving asgraduate textbooks, the volumes offer professional psy-chologists an opportunity to read and contemplate theviews of distinguished colleagues concerning the cen-tral thrusts of research and the leading edges of practice

in their respective fields. Third, for psychologists seek-ing to become conversant with fields outside their ownspecialty and for persons outside of psychology seekinginformation about psychological matters, the Handbookvolumes serve as a reference source for expanding theirknowledge and directing them to additional sources inthe literature.

The preparation of this Handbook was made possibleby the diligence and scholarly sophistication of 24 vol-ume editors and co-editors who constituted the EditorialBoard. As Editor-in-Chief, I want to thank each of thesecolleagues for the pleasure of their collaboration in thisproject. I compliment them for having recruited an out-standing cast of contributors to their volumes and thenworking closely with these authors to achieve chaptersthat will stand each in their own right as valuable con-tributions to the literature. Finally, I would like to thankBrittany White for her exemplary work as my adminis-trator for our manuscript management system, and theeditorial staff of John Wiley & Sons for encouraging andhelping bring to fruition this second edition of the Hand-book , particularly Patricia Rossi, Executive Editor, andKara Borbely, Editorial Program Coordinator.

Irving B. WeinerTampa, Florida

Volume Preface

This volume presents a current description of the specialtyof forensic psychology. The chapters represent contem-porary topics and areas of investigation in this rapidlyexpanding specialty. Topics were selected to reflect foren-sic psychology’s applicability to both the civil and crim-inal justice systems. This volume is organized into fiveparts, grouping topics with common themes. The readerwill first develop an understanding of the nature of thespecialty—what it is and why it is different from otherareas of psychology—and, next, how forensic psychol-ogists gather, use, and produce information. Althoughthe majority of psychologists who identify themselves asspecializing in forensic matters focus on assessment ofpersons whose mental states are at issue in some type oflegal proceeding (e.g., a plaintiff alleging emotional harmin a personal injury lawsuit or a criminal defendant plead-ing not guilty by reason of insanity), forensic psychologyas a specialty area is considerably broader. For example,some forensic psychologists serve as consultants to lawenforcement agencies and evaluating job candidates, someconsult with attorneys on matters of jury selection orpretrial publicity and change of venue, and others offerwhat is referred to as social framework testimony in an

attempt to educate the legal decision maker about mat-ters before it, such as the accuracy of eyewitnesses orthe vulnerability of children to suggestive questioning.Although this volume provides chapters on a wide vari-ety of pursuits, the focus is clearly on matters of forensicevaluation.

Part I includes chapters that address more generalissues that are arguably relevant to all forensic subspe-cialty practice areas. Parts II and III are comprised ofchapters that address a range of civil and criminal foren-sic evaluation matters. Chapters in Part IV are devotedto some special assessment issues, and chapters in PartV focus on pursuits well beyond forensic psychologicalassessment. Although this volume may serve as an under-graduate or graduate textbook, the chapters were writtento stand on their own. As was the case with the firstedition—which was so well edited by Alan Goldstein (towhom I remain indebted)—this volume seeks to reflectthe developments in, and the current state of, the spe-cialty. Accordingly, some chapters from the first editionwere excluded and others were added.

Randy K. Otto

xiii

Contributors

Nancy L. Baker, PhD, ABPPSchool of PsychologyFielding Graduate UniversitySanta Monica, California

Curtis L. Barrett, PhD, ABPPSchool of MedicineUniversity of LouisvilleLouisville, Kentucky

Scott D. Bender, PhD, ABPPDepartment of Psychiatry and

NeurosciencesUniversity of Virginia School of MedicineCharlottesville, Virginia

Randy Borum, PsyD, ABPPDepartment of Mental Health Law

and PolicyUniversity of South FloridaTampa, Florida

Karen S. Budd, PhDDepartment of PsychologyDePaul UniversityChicago, Illinois

Jennifer R. Clark, PsyDPrivate PracticeMexico City, Mexico

Lois Oberlander Condie, PhD, ABPPChildren’s Hospital BostonBoston, Massachusetts

Mary Connell, EdD, ABPPPrivate PracticeFort Worth, Texas

Mary Alice Conroy, PhD, ABPPDepartment of PsychologySam Houston State UniversityHuntsville, Texas

David M. Corey, PhD, ABPPPrivate PracticeLake Oswego, Oregon

Mark D. Cunningham, PhD, ABPPPrivate PracticeDallas, Texas

Richart L. DeMier, PhD, ABPPDepartment of PsychologyU.S. Medical Center for Federal PrisonersSpringfield, Missouri

Eric Y. Drogin, JD, PhD, ABPPDepartment of PsychiatryHarvard Medical SchoolBoston, Massachusetts

Steven K. Erickson, JD, PhD, LLM, ABPPSchool of LawWidener UniversityHarrisburg, Pennsylvania

Charles Patrick Ewing, JD, PhD, ABPPCollege of LawState University of New York at BuffaloBuffalo, New York

William E. Foote, PhD, ABPPDepartment of PsychologyUniversity of New MexicoAlbuquerque, New Mexico

xv

xvi Contributors

Alan M. Goldstein, PhD, ABPPJohn Jay College of Criminal JusticeCity University of New YorkNew York, New York

Naomi E. S. Goldstein, PhDDepartment of PsychologyDrexel UniversityPhiladelphia, Pennsylvania

Jonathan W. Gould, PhD, ABPPPrivate PracticeCharlotte, North Carolina

Thomas Grisso, PhD, ABPPDepartment of PsychiatryUniversity of Massachusetts Medical SchoolWorcester, Massachusetts

Stephen D. Hart, PhDDepartment of PsychologySimon Fraser UniversityBumaby, British Columbia, Canada

Margaret Bull Kovera, PhDJohn Jay College of Criminal JusticeCity University of New YorkNew York, New York

Kathryn Kuehnle, PhDDepartment of Mental Health Law and PolicyUniversity of South FloridaTampa, Florida

Craig R. Lareau, JD, PhD, ABPPDepartment of PsychologyPatton State HospitalPatton, California

Elizabeth F. Loftus, PhDDepartment of Social EcologyUniversity of California–IrvineIrvine, California

David A. Martindale, PhD, ABPPPrivate PracticeSt. Petersburg, Florida

John Monahan, PhD, ABPPSchool of LawUniversity of VirginiaCharlottesville, Virginia

Stephen J. Morse, JD, PhD, ABPPCollege of LawUniversity of PennsylvaniaPhiladelphia, Pennsylvania

Randy K. Otto, PhD, ABPPDepartment of Mental Health Law

and PolicyUniversity of South FloridaTampa, Florida

Ira K. Packer, PhD, ABPPDepartment of PsychiatryUniversity of Massachusetts Medical

SchoolWorcester, Massachusetts

Lisa Drago Piechowski, PhD, ABPPDepartment of Clinical PsychologyAmerican School of Professional

PsychologyWashington, District of Columbia

Richard Rogers, PhD, ABPPDepartment of PsychologyUniversity of North TexasDenton, Texas

Christina L. Riggs Romaine, PhDDepartment of PsychiatryUniversity of Massachusetts Medical

SchoolWorcester, Massachusetts

Martin O. Sellbom, PhDDepartment of PsychologyUniversity of AlabamaTuscaloosa, Alabama

Sandra L. Shullman, PhDDepartment of PsychologyCleveland State UniversityCleveland, Ohio

Kathleen Powers Stafford, PhD, ABPPPrivate PracticeHudson, Ohio

Jennifer E. Storey, MADepartment of PsychologySimon Fraser UniversityBurnaby, British Columbia

Contributors xvii

Melba J. T. Vasquez, PhD, ABPPPrivate PracticeAustin, Texas

Gary L. Wells, PhDDepartment of PsychologyIowa State UniversityAmes, Iowa

Philip H. Witt, PhD, ABPPPrivate PracticeSomerville, New Jersey

Heather Zelle, JDDepartment of PsychologyDrexel UniversityPhiladelphia, Pennsylvania

PART I

Nature of the Field

CHAPTER 1

Overview of Forensic Psychology

RANDY K. OTTO AND ALAN M. GOLDSTEIN

DEFINITION OF FORENSIC PSYCHOLOGY 3A BRIEF HISTORY OF FORENSIC PSYCHOLOGY 3ORGANIZATION OF THIS VOLUME 5

SUMMARY 13REFERENCES 13

DEFINITION OF FORENSIC PSYCHOLOGY

The word forensic, derived from the Latin, forensis, means“forum,” the place where trials were conducted in Romantimes. The current use of the term forensic typicallydenotes some involvement of a particular field of study ina legal forum. There is no uniform or commonly accepteddefinition of forensic psychology—many exist. More nar-row definitions limit forensic psychology to applicationsof clinical psychology to legal matters—typically in thecontext of evaluating litigants whose mental states are atissue in legal proceedings—whereas broader definitionsinclude applications of all areas of psychology (e.g., clini-cal, developmental, social, experimental) to legal matters.An example of this narrower scope is provided by theAmerican Psychological Association’s definition of foren-sic psychology as a specialty: “the professional practiceby psychologists within the areas of clinical psychol-ogy, counseling psychology, neuropsychology, and schoolpsychology, when they are engaged regularly as expertsand represent themselves as such, in an activity primarilyintended to provide professional psychological expertiseto the judicial system” (Heilbrun, 2000, p. 6). In contrast,a broader perspective is provided in the Specialty Guide-lines for Forensic Psychology (American PsychologicalAssociation, in press), which define forensic psychologyas “professional practice by any psychologist workingwithin any subdiscipline of psychology (e.g., clinical,developmental, social, cognitive) when applying the sci-entific, technical, or specialized knowledge of psychol-ogy to the law to assist in addressing legal, contractual,and administrative matters.” For purposes of this volumeforensic psychology is defined broadly as the application

of psychological research, theory, practice, and traditionaland specialized methodology (e.g., interviewing, psycho-logical testing, forensic assessment, and forensically rel-evant instruments) for the express purpose of providingassistance to the legal system.

A BRIEF HISTORY OF FORENSICPSYCHOLOGY

Psychologist Hugo Munsterberg, a student of WilhelmWundt and a professor at Harvard University, is generallycredited with founding the field of forensic psychology.His landmark book, On the Witness Stand (1908), is com-prised of an introduction and eight essays that describehow psychologists could be of assistance to the legal sys-tem. Relying in part on his own experience as an expertwitness, Munsterberg considered topics as diverse as eye-witness identification, false confessions, hypnosis as acrime prevention measure, and the potential value of pre-cursors of the modern-day polygraph and concluded thatit was “astonishing that the work of justice is ever carriedout in the courts without ever consulting the psychologist”(p. 194). In response to publication of Munsterberg’s text,John Wigmore, a law professor and leading scholar on thelaw of evidence, published a satirical article in the Illi-nois Law Review (1909) mocking psychology’s potentialto assist the legal process. Wigmore’s criticisms did havesome merit. Munsterberg’s book lacked any references,and Bartol and Bartol (1999) described some of his claimsas “exaggerated” and “rarely empirically based” (p. 6).

Indeed, Munsterberg’s claims for the contributions thatpsychology could make to the legal system may have been

3

4 Nature of the Field

premature since, at the beginning of the 20th century,psychology was in its infancy and certainly lacked suffi-cient scientific foundation to support the admissibility of“expert” testimony. Thus, despite Munsterberg’s impas-sioned pleas for psychology’s involvement in the legalsystem, his suggestions were largely ignored. However,Munsterberg certainly generated interest in the possibilitythat someday psychology might make contributions tothe judicial process. That Munsterberg saw what is nowreferred to as forensic psychology as being broadlydefined and having the potential to make many contri-butions to the law is indicated by his observation thatpsychologists, in addition to providing insights into thecharacteristics of individuals in particular cases (e.g.,witnesses or defendants), could also contribute to whatwas known about the legal system more generally:

I have written the following popular sketches, which selectonly a few problems in which psychology and law come incontact. They deal essentially with the mind of the witnesson the witness stand; only the last, on the prevention ofcrime, takes another direction. I have not touched so farthe psychology of the attorney, of the judge, or of thejury—problems which lend themselves to very interestingexperimental treatment. (Munsterberg, 1908, p. 11)

Around this same time, psychologists and other men-tal health professionals began providing assistance to thecourts in matters of delinquency and dependency, by eval-uating children who were the subject of proceedings thatwere occurring in “juvenile courts”—the first of whichwas established in Chicago in 1899—and making rec-ommendations for interventions and dispositions. Indeed,some commentators (see, e.g., Otto & Heilbrun, 2002)have observed that this involvement constitutes psychol-ogists’ first real contributions to the legal process, and itis the forensic evaluation role that has gone on to definefor many what forensic psychology is today.

Because they were not physicians, psychologists weresometimes barred from testifying in legal proceedings onthe grounds that they did not have the requisite exper-tise to testify about matters involving the psychologicalfunctioning of litigants and others. However, in 1962, theD.C. Circuit Court of Appeals held in Jenkins v. UnitedStates that psychologists could provide expert opinionsabout mental illness at the time a defendant was allegedto have committed a criminal offense. In the court’s opin-ion, Judge David Bazelon, after reviewing the trainingand qualifications of psychologists, concluded that physi-cians were not uniquely qualified to offer expert testimonyon matters involving mental disorders, and courts, when

considering who should be permitted to provide experttestimony about such issues, should consider factors suchas the proferred expert’s training, skills, experience, andknowledge. Subsequent to this decision, psychologistsentered the courts with increasing frequency and offeredexpert testimony on a wide range of legal issues.

In 1954, the Supreme Court ruled that racial segrega-tion in the public schools violated the equal protectionclause of the Constitution (Brown v. Board of Education).In his opinion for a unanimous court, Chief Justice EarlWarren referenced research conducted by psychologistsKenneth and Marie Clark that was offered as evidence byattorneys representing the plaintiffs that racial segregationhad deleterious effects on the psychological developmentand functioning of African American children. Althoughthe value of the Clarks’ research and their resulting inter-pretations have been questioned (see, e.g., Wolters, 2005)the Supreme Court’s reference to their work is cited asevidence of the legal system’s increasing willingness tolook to the expertise of psychologists in matters that gobeyond assessment of litigants’ mental states. Since thattime psychologists have offered what has been referredto as social framework testimony (Monahan & Walker,2010) in a variety of matters that addresses such diversetopics as the (in)accuracy of eyewitness identification,the biasing effects of pretrial publicity, and consumerconfusion in the context of trademark litigation. In addi-tion, other foci of forensic psychology include providingtreatment to legally involved populations, researching andconsulting with attorneys on matters such as jury selec-tion and case presentation, and studying the legal systemand its operation (e.g., efficacy of drug courts, effectsof transferring juveniles to criminal court for prosecutionand sentencing).

Forensic psychology is unique as a specialty. By itsvery nature, it operates in another system as its practi-tioners attempt to provide assistance to attorneys, judges,juries, and the legal system more generally. This prac-tice requires not only an understanding of how the legalsystem operates, but a working familiarity with statutesand case law that are relevant to the particular issues(s) athand. At this time, only a minority of psychologists whoidentify themselves as forensic specialists have completedany kind of formal forensic training at the doctoral level.Rather, most have obtained a doctoral degree in somegeneral specialty (e.g., clinical psychology, developmentalpsychology, experimental psychology, social psychology)and supplemented this with limited graduate coursework,a postdoctoral fellowship, or continuing education. How-ever, within the past 25 years we have seen development

Overview of Forensic Psychology 5

of more focused graduate training in the forensic arena(Packer & Borum, this volume).

Attempts to define forensic psychology as a spe-cialty or subspecialty began in the 1970s. The AmericanPsychology–Law Society was established in 1969 and,shortly thereafter, affiliated with the American Psycho-logical Association as a division. In 1978, the AmericanBoard of Forensic Psychology (ABFP) was establishedto certify psychologists with competence in the forensicarea. Shortly thereafter ABFP affiliated with the Ameri-can Board of Professional Psychology. And, in 2001 theAmerican Psychological Association formally recognizedforensic psychology as a specialty.

The Specialty Guidelines for Forensic Psychologists,which provide guidance for psychologists engaged inforensic pursuits, were first published in 1991 (Commit-tee on Specialty Guidelines for Forensic Psychologists),and were subsequently revised and adopted by the Ameri-can Psychological Association Council of Representativesin 2011 as the Specialty Guidelines for Forensic Psy-chology. In addition, the American Psychological Asso-ciation and other professional organizations (e.g., Amer-ican Academy of Clinical Neuropsychology, NationalAcademy of Neuropsychology) have published a varietyof guidelines and position statements on matters of rele-vance to forensic psychologists (e.g., statements on impactof third-party observers on examinations, guidelines forconducting child custody and dependency evaluations,guidelines on use of response-style measures in forensicevaluations).

Finally, journals devoted to the area abound (e.g., Lawand Human Behavior, Psychology, Public Policy and theLaw, Behavioral Sciences and the Law, Journal of Foren-sic Psychology Practice), and a number of forensic psy-chology references have been published in their secondor third editions (e.g., Grisso, 2003; Melton et al., 2007;Rogers, 2007). Thus, a little more than 100 years afterMunsterberg first beseeched attorneys and judges to con-sider the contributions that psychologists could offer tothe legal process, forensic psychology is a vibrant, wellestablished specialty that continues to grow.

ORGANIZATION OF THIS VOLUME

Although the activities of forensic psychologists arediverse, the bulk of this volume is focused on foren-sic assessment activities. The initial section is devoted toprofessional issues that are of relevance to all forensic pur-suits, the second section is concerned with evaluation of

persons whose mental state is at issue in criminal proceed-ings, the third section focuses on evaluation of personsinvolved in the criminal justice system, the fourth sectionincludes chapters that address a variety of special assess-ment matters, and the last section is devoted to a varietyof nonclinical, nonassessment activities in which forensicpsychologists may become involved.

Overview

This section includes three chapters that address overrid-ing issues that are relevant to all forensic practitioners:training in the specialty, the ethical obligations that shapethe work of psychologists when engaged in forensic pur-suits, and how the law shapes the practice of the specialtyand how psychologists communicate their work and find-ings to the court.

Forensic Training and Practice

Historically, psychologists who specialized in forensicpursuits gained relevant knowledge and skills throughon-the-job training and intermittent continuing education.A few texts devoted to forensic psychology practice werepublished in the 1970s and early 1980s (The Role of theForensic Psychologist, Cooke, 1973; Who Is the Client?,Monahan, 1980), and a handful of doctoral programsdevoted to the intersection of law and psychologywere developed around this same time (University ofAlabama, University of Nebraska, and Florida StateUniversity). Much has changed in the past half century.There are currently a large number of masters, doctoral,internship, and postdoctoral training programs devotedto forensic pursuits (go to www.ap-ls.org/education/GraduatePrograms.php for a listing and description ofthese programs) and continuing education opportunitiesabound, including an organized and ongoing programof study offered by the American Academy of ForensicPsychology (go to www.aafp.ws for review of currentofferings).

Integral to demonstrating the establishment of a sub-stantive specialty is the existence of training opportunitiesand a system or systems that allow practitioners to demon-strate their competence in the specialty area. In Chapter 2,Ira Packer and Randy Borum review the roles of social,developmental, cognitive, and clinical psychologists inthe field and consider areas of focus, subspecialization,and psycholegal issues addressed by forensic psycholo-gists. They describe graduate training in the field, doctoralprograms, and joint degree programs (those that awardthe PhD or PsyD and the JD), and discuss levels of

6 Nature of the Field

training, internship offerings, postdoctoral fellowships,and continuing education.

Ethics in Forensic Practice

Psychologists working in the legal system are faced withethical challenges. Many of these are similar to chal-lenges experienced by psychologists practicing in otherspecialty areas, and some are more specific to forensicpractice. That the unique challenge of forensic practicewas appreciated by organized psychology is evidencedby development of the “Specialty Guidelines for ForensicPsychologists” (Committee on Specialty Guidelines forForensic Psychologists, 1991), inclusion of a specialforensic practice section in the 1992 version of the Eth-ical Principles of Psychologists and Code of Conduct(American Psychological Association, 1992; hereinafterAPA), and development by APA of practice guidelinesfor some more focused forensic assessment activities,including evaluation of children and families in casesof disputed custody (American Psychological Associa-tion, 2010) and evaluation of children in caretakers independency (i.e., abuse/neglect) proceedings (AmericanPsychological Association, 1998). In addition, practiceguidelines and statements relevant to forensic practition-ers have been published by a number of related pro-fessional organizations including the American Academyof Clinical Neuropsychology and the National Academyof Neuropsychology. Most recently, the forensic practiceguidelines were revised (American Psychological Asso-ciation, in press). Familiarity with such guidelines andstatements is important for informed forensic practice.

The work of forensic psychologists is probably scruti-nized more than the work of any other psychologists (Heil-brun, Grisso, & Goldstein, 2008). Reports and testimonysummarizing the opinions reached by the psychologist aresubjected to both criticism and formal cross-examination.The findings of forensic assessments often have profoundeffects on the lives of litigants, whether used to sup-port a finding awarding or denying a parent custody ofa child, grant a sum of money to a plaintiff in a personalinjury case, or end or continue the involuntary hospi-talization of a litigant previously adjudicated not guiltyby reason of insanity. Psychologists are expected to beknowledgeable about specific statutes, case law, and rulesof evidence, and have experience in conducting forensicassessments. The Ethical Principles of Psychologists andCode of Conduct (American Psychological Association,2002), of course, apply to all areas of professional psycho-logical activity. However, because of the conflicts between

the demands of the legal system and the EPPCC, forensicpsychologists sometimes face challenges in attempting tosatisfy the court and meet their professional obligations. InChapter 3, David Martindale and Jon Gould identify theunique demands encountered by forensic psychologists,discuss professional standards implicit in the competentprofessional practice of forensic psychology, and makeclear that psychologists should practice in a way that isconsistent not only with the APA’s Ethical Principles butwith other relevant guidelines and standards, given thestakes involved in legal matters.

Legal Contours of Expert Testimony

Forensic psychologists typically conduct evaluations withthe expectation that their findings will be presented viawritten reports or oral testimony. Whereas witnesses offact (lay witnesses) are typically limited to testifying aboutknowledge they have acquired firsthand through theirsenses (generally, what they have seen and heard), expertsare permitted to offer to the court not only what they havelearned of themselves, but also resulting opinions and theunderlying reasoning.

Steven Erickson and Charles Ewing (Chapter 4) exam-ine the structure and function of expert testimony thatimpact psychologists who enter the courtroom. Theyreview the general legal rules that govern expert testi-mony, including the Federal Rules of Evidence, explainstatutes and case law that determine who can be quali-fied as an expert and how that occurs, and discuss thelaw surrounding the admissibility of expert testimony andthe limitations placed on experts when testifying. Selectedpractical aspects of the process of providing effective eth-ical expert testimony are provided as well, focusing onspecific types of expert testimony, cross-examination, andthe issue of immunity of experts from civil liability.

Forensic Report Writing

As previously noted, forensic psychologists typically con-duct evaluations with the expectation that their findingswill be presented to others (e.g., the judge, jury, or retain-ing attorney). Reports psychologists write that summa-rize the evaluation process, their main findings, the rea-sons or data that support their findings, and key opinionsare integral to the forensic process. Indeed, well-writtenreports can obviate the need for oral testimony. RichartDeMier, in Chapter 5, reviews the nature and purpose ofreport writing, discusses some of the key research examin-ing the report-writing practices of forensic psychologists,and provides some helpful direction to those seeking to

Overview of Forensic Psychology 7

improve how they communicate their practices, findings,and opinions to the courts.

Forensic Evaluations in Civil Proceedings

Accurate assessment of examinees’ emotional, behav-ioral, and cognitive functioning is crucial given the stakesinvolved in civil proceedings. Litigants in civil proceed-ings can receive financial awards, important personalrights can be restricted or removed in guardianship andrelated proceedings—including the right to manage one’sfinances and make health-care decisions, the right to par-ent or visit one’s children can be removed or limitedin dependency or family court proceedings, and persons’liberty can be restricted via different involuntary hospital-ization proceedings.

Child Custody Evaluations

Assessment of parents and children in cases of disputedcustody is one of the most complex and challenging foren-sic evaluation tasks (Fuhrmann & Zibbell, 2011). Thevast majority of forensic evaluations involve assessmentof one person (e.g., a personal injury litigant, a criminaldefendant for whom trial competence is at issue, a personwho is subject to guardianship or conservatorship pro-ceedings) with respect to relatively specific, focused, andwell-formulated psycholegal abilities. In contrast, foren-sic evaluations conducted in the context of custody dis-putes require assessment of multiple persons (e.g., parents,children, parents’ significant others) in multiple spheres,and—too frequently—in the absence of well-defined cri-teria. Because the stakes are so significant in these matters,at least one parent is apt to be angry about or resentfulof the examiners’ opinions and recommendations. Conse-quently, ethics complaints against forensic psychologistsinvolved in this area of assessment are not uncommon. InChapter 6, Jonathan Gould and David Martindale describethe legal standards for the determination of custody inthe United States, review child custody evaluation guide-lines developed by professional organizations, and provideimportant recommendations for competent practice in thisvery important pursuit.

Assessment in a Child Protection Context

Many more children are involved in legal proceedingsin response to allegations of abuse or neglect by care-takers than are involved in legal proceedings involvingparental disputes regarding custody and visitation. Yet,matters relating to child custody evaluation have received

considerably more attention. This, of course, is unfortunategiven what is at stake for children who are the subjectsof dependency proceedings. Whereas in many cases ofdisputed custody the legal dispute often distills to whichparent and what circumstances are better for the child, independency proceedings the question too often is whethereither parent or a particular parent can provide a basic andsafe environment for the child (Budd, Connell, & Clark,2011). Thus, the stakes in many dependency proceedingsare likely higher than the stakes in most custody proceed-ings. It is this very reason why it is of utmost importancethat psychologists evaluating these children and their par-ents accurately describe their abilities and needs.

Chapter 7, by Karen Budd, Mary Connell, and JenniferClark, goes a long way toward the goal of improvingevaluations conducted by psychologists in such contexts.The authors provide an overview of the legal contextof dependency proceedings, discuss the relevant empir-ical literature regarding child abuse and neglect, reviewvarious methods of assessment data collection, and makerecommendations regarding communicating findings andopinions to the court.

Psychological Evaluation of Emotional Damagesin Tort Cases

The law allows those who have been harmed to bring suitagainst those they believe are responsible in order to becompensated for the harm they endured (Kane & Dvoskin,2011). To prevail in a personal injury lawsuit, the plaintifftypically must demonstrate that he or she was harmed bythe defendant’s breach of some duty. The plaintiff mustalso demonstrate a relationship between the breach and theharm, such that the harm would not have occurred but forwhat the defendant did: the concept of proximate cause.

In Chapter 8 on personal injury evaluation, WilliamFoote and Craig Lareau first review the legal framework ofpersonal injury cases and the law of torts. They then offer anassessment model that can be employed by the examiner.They discuss in detail how the forensic psychologist cango about assessing the plaintiff’s functioning both beforeand after the alleged breach, the distress endured by theplaintiff (if any), theextentof impairments and injuries to theplaintiff’s functioning, the likely cause of any impairmentsor injuries, and the prognosis and steps necessary to restorethe plaintiff to his or her preincident functioning.

Disability and Worker’s Compensation

Persons whose ability to work is significantly impaired asthe result of emotional, behavioral, cognitive, or physical

8 Nature of the Field

impairments may be entitled to important and significantpublic (e.g., Social Security benefits, Supplemental Secu-rity Income, worker’s compensation benefits) and private(via purchased disability insurance) benefits (DragoPiechowski, 2011). Crucial to decision making regardingwhether claimants are entitled to such benefits are com-prehensive and accurate assessments of their emotional,behavioral, and cognitive functioning, and how suchaffect their ability to work. But the mere presence ofillness or impairment is not enough. Rather, there must bean illness or impairment that has a significant impact onthe claimant’s work-related abilities. In Chapter 9, LisaPiechowski reviews various disability benefits programsand provides a model for assessing persons referred forevaluation in these matters.

Employment Discrimination and Harassment

Title VII of the 1964 Civil Rights Act bars discrimina-tion based on race, sex, religion, or national origin. Foren-sic psychologists may be asked to evaluate persons whoallege emotional harm stemming from alleged discrimina-tion and harassment. In Chapter 10, Nancy Lynn Baker,MelbaVasquez, andSandraShullmanpresent the legalbasesunderlying these claims. Forms of illegal discrimination,including harassment, sexual harassment (heterosexual andsame-sex), hostile environment, and retaliation are consid-ered and the professional literature on sexual and racial dis-crimination is reviewed. The roles of the forensic psychol-ogist are described, and specialized assessment methods toemploy when evaluating persons alleging employment dis-crimination and harassment are presented.

Forensic Assessment for High-Risk Occupations

Forensic psychologists are sometimes asked to examinejob candidates for high-risk occupations (e.g., law enforce-ment personnel, firefighters, security, commercial pilots)to assess how their emotional and behavioral functioningmay impact their job performance, if hired. In addition,referrals are made to conduct fitness-for-duty evaluationswhen questions exist about a current employee’s abilityto perform the full duties associated with his or herposition. Because these evaluations impact examinees’employment status, they are subject to considerablelegal requirements and regulations, they present manyunique challenges that are not present in other types offorensic evaluations, and examiners may be at increasedrisk for ethics or licensing complaints stemming fromdissatisfied examinees. The complicated nature of this

subspecialty is reflected, at least in part, by board cer-tification in Police and Public Safety Psychology nowbeing available by the American Board of ProfessionalPsychology (go to www.abpp.org/i4a/pages/index.cfm?pageid=3688 for more information about this newlyestablished board). In Chapter 11, David Corey andRandy Borum discuss the many complicated legal issuessurrounding these evaluations, review representativeethical issues involved, and review appropriate assessmentapproaches.

Forensic Evaluation in Americans With DisabilitiesAct Cases

Whereas the Civil Rights Act of 1964 banned discrim-ination on the basis of race, sex, religion, and nationalorigin, it was not until passage of the Americans WithDisabilities Act of 1990 (ADA) that discrimination againstpersons with physical and mental disabilities was prohib-ited. Designed in part to allow persons with disabilitiesto achieve maximal functioning in the workplace, thislegislation outlawed discrimination on the basis of dis-ability for hiring, training, compensation, and benefits(Goodman-Delahunty, 2000).

In Chapter 12, William Foote examines the issue ofdisability in the workplace and how the ADA fits withexisting disability systems. He details the impact of dis-crimination on the basis of disability, with a focus on mooddisorders, learning disabilities, and substance abuse dis-orders. Foote presents assessment methodologies that canbe used to evaluate persons making ADA claims, and heconsiders issues such as the assessment of damages andthe impact of the employer’s failure to provide reasonableaccommodations. He also explores the topics of disparatetreatment and disparate impact assessments, reprisals forpursuing claims, and the impact of harassment and hostilework environments on those with disabilities.

Civil Competencies

The American culture’s value of autonomy is reflectedin the law’s recognition that all adults, absent significantimpairment or limitations, enjoy the right to manage theirpersonal affairs absent interference from or meddling bythe state (Melton et al., 2007). However, questions mayarise regarding a person’s ability to make informed, rea-soned judgments that are in his or her best interests. Thesequestions may be raised in matters involving the abil-ity to make health-care decisions, manage one’s finances,or execute a will or contract (Drogin & Barrett, 2010).

Overview of Forensic Psychology 9

Concerns about a particular person’s capacities maydevelop at or around the time the decision of interest is tobe made, after the decision of interest has been made, orbefore the decision is to be made. Decision-making capac-ity can be affected by a variety of emotional, behavioral,or cognitive impairments.

Eric Drogin and Curtis Barrett (Chapter 13) describethe role of forensic psychologists in the assessment of avariety of civil competencies. After providing a review ofthe legal concept of competence they discuss a variety ofcivil competencies that may be brought into question, dis-cuss various assessment approaches, and review specificassessment tools.

Civil Commitment and Involuntary Hospitalizationof Persons With Mental Illness

Although involuntary hospitalization is a civil matter, thestakes in these proceedings are high. Persons can bedetained for extended periods of time and their libertyand autonomy are strictly limited as a result (Pinals &Mossman, 2011). In Chapter 14, Craig Lareau reviews thelegal history of and rationale/justification for involuntaryhospitalization, and discusses more recent legal develop-ments including outpatient commitment and conditionalrelease. He also reviews the commitment process and dis-cusses the role forensic psychologists may play in theinvoluntary examination and hospitalization process withrespect to assessment of risk for harm to self and others,assessment of decision-making capacity, and implemen-tation of treatments and other interventions designed tominimize risk of harm.

Evaluation and Management of Sexual Offenders

With the exception of drug offenders, during the 1990s thesex offender population has increased faster than any othergroup of violent criminals (La Fond, 1998), and ways thatthe legal system can act against sex offenders have con-tinued to expand during the early parts of the 21st century(Edwards, 2001; Vasquez, Maddan, & Walker, 2008; Witt& Conroy, 2008). Many states have expanded the crimi-nal penalties for second offenses, approximately 40% ofstates have laws in place that allow for involuntary hos-pitalization of sex offenders after they have completedcriminal sentences for their offenses, and all states havesome requirements related to registration and/or commu-nity notification.

Mary Alice Conroy and Philip Witt describe the impactof this legislation on forensic practice in Chapter 15. They

review sex offender legislation (including sexual violentpredator statutes), issues related to evaluating the sexoffender’s mental state and risk for recidivism, and ethicalconcerns.

Forensic Evaluations in Delinquencyand Criminal Proceedings

As noted previously, it was the doors of the juvenile courtthrough which psychologists first entered the legal arenain a meaningful way. They continue to be heavily involvedin these proceedings today. Similarly, many psycholo-gists specialize in evaluation of criminal defendants, anda review of forensic psychologists certified by the Amer-ican Board of Professional Psychology (www.abpp.com)reveals that evaluation of criminal defendants in the mostcommon activity of this group of professionals.

The stakes are probably greatest in delinquency andcriminal proceedings. Juvenile and adults found responsi-ble for criminal offenses can have their liberty restrictedfor extended periods of time, and the death penaltyremains in place in a majority of states. In this sectionthree key issues that are considered by the criminal courtsare addressed: competence, responsibility, and sentencing/disposition.

Forensic Evaluation in Delinquency Cases

Establishment of the first juvenile court in Chicago in 1899reflected the legal system’s understanding that juvenileswere different from adults in many important ways, and thatthese differences required a special response when juvenilesran afoul of the law. The stated goal of the first juvenilecourts—rehabilitation rather than punishment—was sig-nificantly different from that of criminal courts. ThomasGrisso and Christina Riggs Romaine note that, althoughthe development of the knowledge base regarding how theabilities and limitations of juveniles are important to under-standing their involvement with the legal system has laggedwhencompared todevelopment inother forensicareas, therehas been significant growth in the past decade. In Chapter16, the authors review the current state of knowledge regard-ing the evaluation of juvenile offenders and use of variousinstruments and tools.

Capacity to Waive Miranda Rights and the Assessmentof Susceptibility to Police Coercion

Confessions to crimes are valuable commodities, which,once introduced to a judge or jury, are exceedingly dif-ficult for defense lawyers to overcome. Unchallenged,

10 Nature of the Field

inculpatory statements are devastating—typically, and attimes mistakenly, taken as a clear sign of the defendant’sguilt. In Miranda v. Arizona (1966) the U.S. SupremeCourt noted that the process of interrogation is hid-den from public scrutiny and ruled that the Constitutionrequires that suspects undergoing interrogation must beinformed of their right to avoid self-incrimination. Onlyconfessions that were provided subsequent to a know-ing, voluntary, and intelligent waiver of one’s right toavoid self-incrimination are admissible and can be used toprove criminal responsibility Goldstein & Sevin Goldstein(2010). This issue has received increasing attention inthe past decade as compelling evidence of convictionsbased on false and coerced confessions has been unearthed(Drizin & Leo, 2004).

In Chapter 17, Naomi Goldstein, Alan Goldstein,Heather Zelle, and Lois Oberlander Condie examine caselaw regarding the ability to waive Miranda rights andthe validity of confessions. They describe research rele-vant to child, adolescent, and adult Miranda rights com-prehension, and the relationship between understandingthese rights and IQ, academic achievement, reading abil-ity, familiarity with the criminal justice system, race, andsocioeconomic status. Forensic assessment instruments,some in their second generation, that have been devel-oped to assist in assessment of an individual’s ability tomake a knowing and intelligent waiver are reviewed, andthe use of traditional clinical tests as an adjunct to theevaluative process is described as well. The authors alsoexplore the literature on false confessions: the significanceof inculpatory statements, frequency of false confessions,and why some defendants may provide a false confession.The authors present methodology for evaluating those fac-tors that may contribute to inculpatory statements that maynot be truthful.

Assessment of Competence to Stand Trial

A defendant in a criminal case must be more than justa physical presence in the courtroom; he or she musthave, at a minimum, “sufficient present ability to con-sult with his attorney with a reasonable degree of rationalunderstanding . . . and a rational and factual understandingof the proceedings” (Dusky v. U.S., 1960). Fitness-for-trial assessments are the most common of all criminalevaluations (Hoge, Bonnie, Poythress, & Monahan, 1992;Melton et al., 2007; Zapf & Roesch, 2008). KathleenStafford and Martin Sellbom review the legal frameworkof trial competence, placing it in historical perspective in

Chapter 18 of this volume. They describe the variables rel-evant to trial competence that are reported in the empiricalliterature. They examine the methodological approachesto assess competence to stand trial, including the use offorensic assessment instruments designed expressly forthis purpose, and consider the issue of trial competencewith special populations. Dispositional issues, includingprediction of competence restoration, treatment of incom-petent defendants, and permanent incompetence, are alsodiscussed.

Evaluation of Criminal Responsibility

Perhaps no other area of the law engenders more atten-tion than the insanity defense (Melton et al., 2007; Packer,2009). The trial of John W. Hinckley for the attemptedmurder of President Reagan and his subsequent acquittalby reason of insanity (United States v. Hinckley, 1982)fanned the flames of the perceived injustices resultingfrom insanity defenses. However, public perceptions dif-fer significantly from reality in terms of the frequencyof insanity defenses, their rate of success, and what ulti-mately happens to those acquitted by reason of insanity.The evaluation of a defendant’s mental state at the time ofan offense is central to the issue of criminal responsibilityand the appropriateness of punishment. These assessmentsrequire the “reconstruction” of a prior mental state toassist the trier of fact in rendering a decision of legalresponsibility.

In Chapter 19, Alan Goldstein, Stephen Morse, andIra Packer explain the basic doctrines of criminal liabil-ity. They focus on mental state issues relevant to culpa-bility, including negation of mens rea, provocation andpassion, extreme mental or emotional disturbance, volun-tary and involuntary intoxication, imperfect self-defense,and duress. The authors review the history of the insanitydefense, including its development, changes, and recentreforms. Ethical issues and conflicts that arise when con-ducting these assessments are explored, and the authorsdescribe a methodology for assessing a defendant’s men-tal state at the time of the alleged offense.

Sentencing Determinations in Death Penalty Cases

Unlike any other form of punishment, the death penalty isthe ultimate, irrevocable sanction. The Supreme Court heldthat death penalty statutes must not be “capricious” andthat specific guidelines are required to avoid the “uncon-trolled discretion” of judges and juries, whereby “[p]eoplelive or die, dependent on the whim of 1 man or 12”