forensic psychology 344h

Forensic Psychology 344H

Dr. Peter CollinsDr. Alberto Choy

Instructors

Dr. Alberto Choy - BMedSci., M.D., F.R.C.P(C)

Lecturer, Department of Psychiatry, University of Toronto

Forensic Psychiatrist, Behavioural Sciences Section, O.P.P.

Instructors

Peter Collins, B.A., M.C.A., M.D., F.R.C.P(C)

Assistant Professor, Department of Psychiatry, University of Toronto

Manager, Forensic Psychiatry Unit, Behavioural Sciences Section, O.P.P.

Consultant Forensic Psychiatrist, Behavioural Sciences Branch, R.C.M.P.

Instructors Dr. Collins – 416-979-6847peter.collins@utoronto.ca

Dr. Choy – 416-979-6835a.choy@utoronto.ca

Teaching Assistants Andrea Gonzalezandreag@psych.utoronto.ca

Anna Volkovaanna@psych.utoronto.ca

Office Hours

Office hours: before and after lecture or by appointment. By appointment - downtown campus.

Exams Mid-Term Exam - October 20, 2003 - 30%

Final Exam - December 2003 - 40%

Paper - Due November 24, 2003 - 30% - no extensions.

Readings

Text: Wrightsman, Lawrence Forensic PsychologyWadsworth Thompson Learning 2001

Readings: to be provided.

Forensic application of science and clinical expertise

to legal issues.

both law and science seek truth but law’s overriding goal is to administer justice based on the evidence available at a particular time.

Forensic Science aims to be objective but has

limitations and constraints.

lawyers and judges need to have some understanding of science and scientific methodology in order to analyse critically and to discern good science from bad science.

Forensic Psychiatry psychiatry is a medical speciality.

forensic psychiatry is a subspecialty of psychiatry.

involved in the assessment and treatment of individuals who come into conflict with the law.

Forensic Psychiatry

Consultants to branches of the CJS: Crown, Defence, Court. Civil cases. Mental Health Act Cases/Review Boards. Correctional System. Police. CPSO, LSUC, CMPA, OCT.

Legal Pathways

HospitalDiversion

High CourtJudge/Jury

JailAwaiting Trial

Short SentencesProbation

Lower Court Judge

PoliceArrest

Legal Pathways

Innocent AssessmentHospital

UnfitHospital

NCRHospital

Parole

Prison

High CourtJudge/Jury

Evidence

what constitutes evidence in law is the subject of legal rules that determine whether or not evidence is admissible and if admissible, what weight should be given to it.

Expert Evidence

necessary when it contributes to an understanding of a relevant issue that is outside the ordinary knowledge of the judge or jury.

Expert Evidence R. v. Mohan (1994)

[The expert witness must] have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.

Expert Evidence

if opinion evidence falls within the normal experience of the trier of fact, it will be excluded.

Expert Evidence

R. v. McIntosh (1997) expert evidence provided by a psychology

professor on factors that would impair the witnesses’ ability to accurately identify an assailant was not admitted by the trial judge.

upheld on appeal.

Expert Evidence the evidence was aimed at supporting the

proposition that all witnesses have problems in perception and recall during brief and stressful events.

the expert was, therefore, “reminding the jury of…normal experience.”

Expert Evidence although qualified as an expert in a

particular field may not be sufficient to accept his or her opinion evidence.

general knowledge, or practising in a certain area does not make an individual experts on all issues that may fall within their professional, educational or experiential base.

Admissibility in Canada

R. v. Mohan (1994)Four pre-conditions to the admissibility of

expert evidence:1. relevance;2. necessity in assisting the trier of fact;3. the absence of any exclusionary rule; 4. a properly qualified expert.

Relevance logical relevance and legal relevance.

evidence that is logically relevant to an issue may still be excluded if the probative value is outweighed by its prejudicial effect.

Relevance

Although not incorporated into the Mohan test, the helpfulness of evidence is another factor to be considered in determining its admissibility.

Expert Testimony - U.S. Frye Test - Frye v. United States (1923)

Federal Rules of Evidence (FRE) 1975

Daubert v. Merrell Dow Pharmaceuticals (1993)

Daubert Test - U.S.1. testability of a theory or technique.

2. theory has been peer reviewed.

3. the known or potential error rate.

4. general acceptance rate in the scientific community.

Daubert U.S. courts now scrutinise mental health

professional testimony in criminal proceedings - syndromes and diagnoses have come under scrutiny.

General Electric v. Joyner (1997) Supreme Court cautioned that judges should

be vigilant for experts making unwarranted extrapolations from data.

Daubert appellate courts have applied Daubert

criteria to the admissibility of testimony on:

- battered woman’s syndrome.- rape trauma syndrome.- compulsive gambling syndrome.

Daubert

United States v. Scholl (1997)

the Court held that the expert could testify to the 10 DSM-IV criteria for pathological gambling, but could not elaborate on these criteria or associated features in relationship to the alleged criminal behaviour.

Psychological Tests

Grier v. Educational Services Unit No. 16 (1995)

use of the Child Behaviour Checklist (CBCL) was deemed inadmissible because it had not been validated on the relevant population (i.e., the mentally retarded) or for a particular use (i.e., the detection of child abuse).

Psychological Tests

State v. Cavaliere (1995)

the Supreme Court of New Hampshire ruled the use of the MMPI-2 and MCMI-II in creating profiles of sex offenders was ruled inadmissible.

Psychological Tests

Chapple v. Ganger (1994)

the trial court ruled on the admissibility of certain neuropsychological test batteries relying heavily on the American Psychological Association’s Standards for Educational and Psychological Testing in making it’s ruling.

Daubert reliability of eyewitness testimony.

false confessions.

impact of Munchausen’s disease.

suggestibility of children.

Daubert in the prosecution of allegations of

“recovered” memories of childhood sexual abuse, Courts have increasingly applied Daubert to scrutinise the claim that child victims of sexual abuse can repress and then accurately recover memories of sexual abuse.

Insanity Borrowed term from common parlance

developed into a legal concept.

The challenge for the prosecutor is to ensure the common concept of insanity does not invade the legal concept.

Insanity Prior to M’Naughten in ancient Hebrew law children and the

insane were not held responsible for their acts.

In 1265, Bracton set forth the first explicit standard “an insane person is a person who does not know what he is doing, is lacking in mind and reason, and is not far removed from brutes.”

Prior to M’Naughten

Bracton is credited with the codification of British law including:

actus reus - the physical element or behaviour.

mens rea - the mental element or purpose.

Prior to M’Naughten Wild Beast standard.

Delusion test.

Right-wrong test.

Delusional-volitional.

M’Naughten case (1843) Daniel M’Naughten wanted to kill the

Prime Minister Peel but mistakenly killed Peel’s secretary Edward Drummond.

M’Naughten was acquitted after nine medical experts testified to his insanity.

M’Naughten (1843) Queen Victoria openly angry about the

verdict and complained about a legal system that would allow an NGRI verdict for Oxford and M’Naughten “whilst everybody is morally convinced that both malefactors were perfectly conscious and aware of what they did.”

M’Naughten Rules a defendant was presumed to be sane,

unless it was proved that at the time of the commission of the offence he was “labouring under such a defect of reason, from disease of mind as not to know the nature and quality of the act he was doing; or if he did, that he did not know he was wrong.” Tindal L.C.J. (1843)

Mental Disorder & Capacity Cdn. Criminal Justice is based on the

principle that individuals are responsible for their acts.

those who choose to disobey are subject to punishment.

ignorance of the law is not an excuse.

Section 16 CCC the law does exempt criminal responsibility

for those who are incapable of making a rational choice.

the M’Naughten Rules, with modest variations, found their way into the Canadian Criminal Code.

Section 16

(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Section 16

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on a balance of probabilities.

Section 16

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

S. 16 Mental Disorder Criminal Code defines mental disorder in a

circuitous fashion.

“disease of the mind” - legal concept that is up to the judge to decide.

S. 16 Mental Disorder

Court decisions have implied that:

a substantial impairment of mental abilities in the form of obvious psychotic behaviour or delusions had to occur before a person can claim lack of criminal responsibility

S. 16 Mental Disorder the disorder better be internal rather than

externally caused.

the disorder in not transitory.

S. 16 Mental Disorder Courts have determined delirium tremens

and toxic psychosis to be diseases of the mind.

personality disorder - rare. (i.e. those who are unable to appreciate the feelings of the victim do not amount to an insanity defence.

Role of Psychiatrist The speed to which a psychiatrist is called

in will be a major factor in determining the usefulness of the evidence.

Tactically the defence may raise a mental disturbance but allege they are not raising the defence of insanity.

Appreciating Even if the offender has a “disease of the

mind” at the time they committed the criminal act, that will not exempt him from criminal responsibility unless that disorder caused him to be incapable of “appreciating the nature and quality of his act…or of knowing that it was wrong.”

S. 16 - Appreciate Appreciating includes the act of knowing

but knowing does not necessarily include appreciating.

Knowing is awareness, rational perception, a cognitive or intellectual ability.

Appreciating requires an analysis of the of the knowledge and experience.

Appreciating

In a murder case the killer may be aware of the physical character of his act and still be found insane.

Appreciating

Question to be asked:

Did the offender’s mental disorder deprive him of the mental capacity to foresee and measure the physical consequences of his act (or knowing it was wrong)?

Appreciating The fact that the suspect lacked the

appropriate feeling of remorse or guilt doesn’t mean he did not realise the nature and quality of his act.

Lack of remorse, empathy or guilty conscience usually indicates a personality disorder.

S. 16 - “wrong”

R. v. Chaulk - wrong was interpreted as meaning “morally wrong”, not “legally wrong”.

but,R. v. Worth - the word wrong was interpreted

as meaning legally or morally wrong.

S. 16 CCC examination and testing of accused.

review of all forms of evidence.

counterchecking with third parties the story provided by the accused.

Crime Scene Considerations evidence of planning (e.g. bringing a

weapon or other material with him to facilitate the commission of the offence)

flight or escape

cleverness of the crime.

Crime Scene apparent focus to the commission of the

offence.

efforts to avoid unintended victims.

apparent preparation of the field in which the offence was committed.

Crime Scene Destruction or attempted destruction of

inculpatory evidence.

steps taken to to facilitate the crime (e.g. cutting of telephone wires).

base motives (e.g. lust, greed, envy, revenge)

Witness Interviews All observations of the offender.

The offender’s physical condition.

The offender’s apparent orientation.

The offender’s ability to communicate.

Assessment mental state

planning

motive

rational acts before and after the crime.

Assessment flight or escape

cleverness of crime

efforts to avoid unintended victims

preparation of field where the offence would occur

Assessment privacy or concealment

attempts to destroy or conceal evidence

apparent normalcy of life - (job, friends, social life)

deception of authorities, friends or family

Assessment use of false names

operation of any base motive

steps to facilitate the offence

knowledge the act was a crime

Assessment knowledge that society would see act as

wrong.

knowledge of consequences.

apparent long and short term memory.

Assessment any organic conditions

any stressful events before the crime

drugs or alcohol.

medical history

Assessment physical examination

work history

school history

fitness and awareness of one’s rights

Witness Interviews The offender’s co-ordination.

Whether the offender’s actions appeared to be goal oriented or focused.

Ask - demeanour

speech

motor activity

emotional reactions

Ask - Coherence

apparent intelligence

his judgement and insight.