FORENSIC PSYCHOLOGY CAREERS FOR AFRICAN-AMERICAN                                                                         PSYCHOLOGISTS

                                                                             *      

                                                                                                                                      ©  2013,  Michael Oshoosi

                                                                                                                                                                                Registered © Michael Oshoosi, 2015

                                                                                                                                                                                           All Rights Reserved

                                                                                                                                   *

                               [THIS IS ALSO  THE TEXT TO A VIDEO-ADDRESS TO THE JUDICIAL COUNCIL OF CALIFORNIA, 2013

                                UNDER MY PROFESSIONAL NAME, IDENTITY AND FUNCTION]

                                                                                                                                   *

                                                                                                           

I AM A FORENSIC PSYCHOLOGIST WITH THIRTY YEARS EXPERIENCE .  FOR PURPOSES OF IDENTIFICATION,

 

I AM THE RESIDENT FORENSIC PSYCHOLOGIST IN A LOCAL BAY AREA HOSPITAL.  THE VIEWS I EXPRESS,

 

HOWEVER, ARE MINE ALONE.  MY TASK TODAY IS TO SHARE WITH YOU CURRENT OR FUTURE AFRICAN

 

AMERICAN PSYCHOLOGISTS AN OVERVIEW OF THE INTERACTION OF THE LAW, ON THE ONE HAND, AND

                                                                                                                                       *

THE PROFESSION OF PSYCHOLOGY, ON THE OTHER. SPECIFICALLY: HOW PSYCHOLOGY ACTS ON THE

 

LAW TO INFLUENCE ITS PROCESSES AND ITS OUTCOMES.  

 

 

AFRICAN-AMERICANS WHO ARE INVOLVED WITH THE CIVIL AND CRIMINAL JUSTICE SYSTEMS ARE TYPI-

 

CALLY DISADVANTAGED BY NOT BEING AS ABLE TO AFFORD QUALITY LEGAL REPRESENTATION AS

 

OTHERS AND ARE EVEN MORE DISADVANTAGED BY NOT HAVING PROFESSIONAL EXPERTS AS AVAIL-

 

ABLE (AND CULTURALLY COMPETENT) TO EVALUATE THEIR PSYCHO-LEGAL ISSUES AS ARE OTHER

 

MORE AFFLUENT LITIGANTS.  I ENCOURAGE AFRICAN AMERICAN STUDENTS AND PROFESSIONALS

 

ALIKE TO EXPLORE CAREER POSSIBILITIES IN FORENSIC PSYCHOLOGY. FORENSIC WORK WILL DRAW

 

ON ALL OF THE FOLLOWING AREAS IN YOUR GRADUATE TRAINING: CLINICAL, PERSONALITY, SOCIAL,

 

RESEARCH EVALUATION, CULTURAL AND PERSONALITY AND NEUROPSYCHOLOGICAL TESTING.  MY

 

ADVICE IS TO STUDY THESE SUB-FIELDS OF PSYCHOLOGY AS MUCH AS ONE CAN.

 

 

LET US START BY FIRST STATING THAT THERE ARE MANY INSTANCES, OF COURSE, WHERE THE CON-

 

VERSE IS THE CASE—THAT IS, WHERE THE LAW ACTS ON PSYCHOLOGY.  FOR EXAMPLE, LAWS—

 

STATUTORY, REGULATORY OR DECISIONAL LAWS--DEFINE THE SCOPE OF PRACTICE OF PSYCHOL-

 

OGISTS AND PRESCRIBE THE MINIMAL EDUCATIONAL REQUIREMENTS NECESSARY FOR A PROFES-

 

SIONAL PRACTICE IN THIS AREA.  ADDITIONALLY, LAWS INCORPORATE THE STANDARD OF CARE AND

 

THE ETHICAL CANONS OF THE PSYCHOLOGY PROFESSION AS AGREED UPON BY PRIVATE PROFES-

 

SIONAL ASSOCIATIONS.   BUT OUR EMPHASIS TODAY WILL BE ON THE OTHER SIDE OF THE NEXUS: THE

 

SIDE WHERE PSYCHOLOGY ACTS ON THE LAW; THAT IS, I WILL REVIEW ITS ROLE IN INFLUENCING

 

LEGAL PROCESSES LEGAL AND DECISION-MAKING.

 

 

ALSO, LET ME SAY THAT IN DUE COURSE I WILL HAVE OCCASION IN THIS PRESENTATION TO DISTIN-

 

GUISH THE PRACTICES OF PSYCHOLOGISTS FROM THAT OF PSYCHIATRISTS, BUT FOR THE MOST

 

PART THE ROLES OF THESE TWO KINDS OF PROFESSIONALS SUBSTANTIALLY OVERLAP FOR THE

 

PURPOSE OF THIS EXPOSITION.

 

 

MENTAL HEALTH PROFESSIONALS, PARTICULARLY FORENSIC PSYCHOLOGY EXAMINERS, TYPICALLY

 

CONSULT ON AND TESTIFY IN THE FOLLOWING AREAS OF LAW: 

 

       (1) CRIMINAL LAW—FOR EXAMPLE IN INSANITY DEFENSES OR TRIAL COMPETENCE EVALUATIONS

 

       (2) CIVIL LITIGATION--PERSONAL INJURY, FOR EXAMPLES ON THE QUESTION OF IMPAIRMENTS

 

       (3) FAMILY-LAW MATTERS,--FOR EXAMPLE IN CHILD CUSTODY, NEGLECT OR ABUSE CASES, AND

 

       (4) DISABILITY LAW—FOR EXAMPLE IN CIVIL COMMITMENT AND PROBATE CONSERVATORSHIP

             DISPUTES). 

 

THERE ARE OTHER AREAS OF INTEREST BUT THESE ARE THE MOST COMMON.

 

 

 

                                                                                               I.

WHAT  FACT-TRIERS AND LAW-GIVERS WANT TO KNOW THAT IS PSYCHOLOGICAL IN NATURE                                       

 

LET’S START WITH THE IMPORTANT PARTICIPANTS IN THE JUDICIAL PROCESS.  THERE ARE, OF COURSE,

 

WITNESSES AND PARTIES INVOLVED IN LEGAL CONTESTS. AND THERE ARE LAW-GIVERS (JUDGES ALONE)

 

AND “TRIERS OF FACT” (JUDGES AND JURORS) WHO PARTICIPATE. EACH OF THE PARTICIPANTS IN THE

 

JUDICIAL PROCESS WILL FIND—AND AT TIMES EVEN NEED—THE INSIGHTS AFFORDED THEM BY PSY-

 

CHOLOGISTS AT CRITICAL JUNCTURES IN THE PROCESS OF ADJUDICATION. OUR INITIAL FOCUS WILL BE

                                                                                                                                *

TO OUTLINE WHAT YOU, AS TRIERS-OF-FACTS AND LAW-GIVERS, CAN EXPECT FROM PSYCHOLOGICAL

                                                                                                                                *

PROFESSIONALS. BUT FIRST, LET US ESTABLISH THAT ADJUDICATORS MUST DO THREE BASIC THINGS IN

                                                                                                   *

HEARINGS AND TRIALS REGARDLESS OF WHETHER OR NOT THERE ARE PSYCHOLOGICAL ISSUES INVOL-

 

VED IN THE CASE.

                                                                                                       *

 

       (1) THEY MUST ESTABLISH THE EXISTENCE (OR NON-EXISTENCE) OF FACTS. IN OUR CASE  THE

             PSYCHOLOGICAL FACTS MAY BE IN THE NATURE OF THINGS, CONCEPTS, EVENTS, OR                                    RELATIONSHIPS. ,

 

       (2) THEY MUST  ASSESS THE CREDIBILITY OF WITNESSES IN RESPECT OF THEIR MEMORY AND  

             PERCEPTUAL FACULTIES, AND

 

       (3) THEY MUST APPLY LEGAL STANDARDS TO THE BEHAVIOR AND CONDUCT OF PARTIES TO THE

              LITIGATION WHERE, FOR EXAMPLE, THEY MIGHT FIND A PERSON “INSANE,” OR                

              “INCOMPETENT.”

 

ACCORDINGLY, I WILL USE THESE THREE TASKS AS A WAY TO STRUCTURE THIS PRESENTATION. AND, IF

 

I AM SUCCESSFUL, I WILL HAVE PRESENTED TO YOU BY ITS END THE KEY CONCEPTS THAT UNIFY VIR-

 

TUALLY ALL JUDICIAL DETERMINATIONS OF THE FACTS OF A PERSON’S “MENTAL STATE,” AND OPIN-

 

IONS ON HIS OR HER” MENTAL (PSYCHO-LEGAL) STATUS” (FOR EXAMPLE, HIS ”COMPETENCY” OR

 

“CAPACITY”).

 

                                                                                                II.

                                                 THE ESTABLISHMENT OF PSYCHOLOGICAL FACTS

 

LET’ US ADDRESS THE KINDS OF “PSYCHOLOGICAL FACTS” THAT A MENTAL HEALTH EXPERT CAN HELP

 

TO ESTABLISH.

 

 

BECAUSE PSYCHOLOGY IS THE SCIENCE OF MENTATION AND BEHAVIOR, PSYCHOLOGISTS MAY HELP

 

JURISTS DETERMINE IF RELEVANT PSYCHOLOGICAL FACTS EXIST. WHAT DO I MEAN BY THE PHRASE

 

“PSYCHOLOGICAL FACTS?”  FOR EXAMPLE, THE QUESTION OF WHETHER “YOUNG JOHNNY ‘S FACUL-

 

TIES OF MEMORY ARE SO POOR IN COMPARISON TO MOST OTHER PEOPLE OF HIS AGE AND GENDER

 

THAT HE MAY BE CONSIDERED IMPAIRED?”  IS A FACT (OR NOT) THAT COULD BE ANSWERED BY A PSY

 

CHOLOGIST.   OR, “IS IT LIKELY THAT THE AVERAGE PERSON WOULD CONFUSE THE BRAND LOGO OF 

 

ONE COMMODITY PRODUCER WITH THE BRAND OF ANOTHER WHO HAD ALREADY REGISTERED A COPY-

 

RIGHT USING A VERY SIMILAR LOGO?”  THIS TOO IS A PSYCHOLOGICAL QUESTION AND IT COULD BE AD-

 

DRESSED BY A SOCIAL OR ADVERTISING PSYCHOLOGIST.

 

 

SIMILARLY, THE QUESTION “DID JANE SUFFER FROM A DIAGNOSABLE MENTAL DISORDER THAT

 

IMPAIRED HER JUDGMENT AT THE TIME SHE ENGAGED IN UNLAWFUL CONDUCT?” IS A QUESTION

 

OF GREAT IMPORTANCE THAT COULD BE INVESTIGATED AND REPORTED ON BY A CLINICAL PSYCHO-

 

LOGIST OR PSYCHIATRIST.  THAT IS, IN THIS AND MANY OTHER SUCH CASES, THE PSYCHOLOGIST CAN

 

PROVIDE EVIDENCE AND SOMETIMES OPINIONS ON QUESTIONS THAT ARE SOMEWHAT BEYOND THE

 

KNOWLEDGE OF LAY PEOPLE.

 

 

THE PSYCHOLOGIST, PARTICULARLY WHEN SERVING AS A MENTAL HEALTH EXPERT, MAY BE USEFUL

 

AS A CONSULTANT TO POTENTIAL LITIGANTS AND THEIR ATTORNEYS BEFORE LEGAL ACTIONS ARE

 

EVEN FILED OR EARLY IN THE PROCESS OF LITIGATION OR CRIMINAL ADJUDICATION.   FOR EXAMPLE,

 

AN ATTORNEY MAY WANT TO KNOW BEFORE FILING A CLAIM FOR DAMAGES WHETHER OR NOT THE

 

CLIENT, AS A RESULT OF AN INJURY, ACTUALLY FUNCTIONS AT A LOWER LEVEL OF MENTATION AND

 

BEHAVIORAL CONTROLS THAT HE DID BEFORE THE INJURY.  THESE THEN ARE EXAMPLES OF THE

 

KINDS OF “PSYCHOLOGICAL FACTS’ THAT A TRIER-OF-FACT MAY BE INTERESTED IN.

 

 

PERSONALITY DESCRIPTION REPORTING

 

BEFORE ADDRESSING QUESTIONS OF MENTAL ILLNESS OR ABNORMAL PSYCHOLOGY IN A LEGAL 

 

PROCESS PARTICIPANT, A PSYCHOLOGIST MAY START WITH BASIC DESCRIPTIONS OF WHAT THIS

 

PERSON IS LIKE—AS A PERSON—WITHOUT REFERENCE TO SYMPTOMS AND SIGNS OF DISORDER.

 

AN ATTORNEY MAY WANT TO HUMANIZE (OR MALIGN) A PERSON BASED ON PERSONALITY

 

DESCRIPTORS ALONE.

 

 

THE BASIC TRAITS IN THE PERSONALITY THAT EVERYONE SHARES TO ONE DEGREE OR ANOTHER –

 

MOSTLY NOT CONSIDERED “ABNORMAL”-- MAY BE SPECIFIED AS TO INDIVIDUALS IN A PROCESS

 

CALLED “PERSONALITY DESCRIPTION.”   IN THE 1950’S PERSONALITY PSYCHOLOGISTS, USING A

 

STATISTICAL PROCEDURE CALLED   “FACTOR ANALYSIS,”   TOOK OVER 18,000 WORDS IN AN ENGLISH

 

DICTIONARY THAT ARE COMMONLY USED TO DESCRIBE PERSONALITIES AND REDUCED THEM TO FIVE

 

DIMENSIONS OF PERSONALITY ALONG WHICH EVERYONE MAY BE DESCRIBED AS QUESTIONS:

                                                                                        

                                                                                                         *

        (1)  IS THE PERSON EXTROVERTED OR INTROVERTED?

 

        (2)  IS SHE NORMALLY CULTURED OR SUB-CULTURED?

 

        (3)  IS HE AN OPEN PERSON (TO NEW IDEAS) OR RIGIDLY CLOSED OFF TO THE INFLUENCE OF                            OTHERS?

 

        (4 ) THE PERSON EMOTIONALLY STABLE OR ANXIETY-RIDDEN?    AND,

 

        (5)  IS THE PERSON AN “AGREEABLE” VERSUS A “DISAGREEABLE” TYPE?

                                                                                                      *

THE ANSWER TO QUESTIONS LIKE THESE MAY BEAR ON “FITNESS FOR DUTY” EMPLOYMENT DISPUTES

 

SOME OF WHICH END UP BEING LITIGATED AND A PSYCHOLOGIST CAN OPINE IN THIS AREA TO THE

 

BENEFIT OF FACT-FINDERS.  INDEED, IF AN EXPERT WITNESS SETS OFF TO DESCRIBE THE TYPICAL PER-

 

SONALITY TRAITS OF AN INDIVIDUAL HE OR SHE MAY BE CHALLENGED ON THE ISSUE OF BIAS IN REG-

 

ARD TO WHICH OF THE HUNDREDS OF TRAITS EVERY INDIVIDUAL HAS IS BEING CHOSEN FOR EMPHAS-

 

IS.  BY STICKING TO THE MAIN TRAIT DIMENSIONS THAT HAVE BEEN SCIENTIFICALLY SHOWN TO EXIST

 

FOR ALL PEOPLE, THE MENTAL HEALTH EXPERT CAN AVOID SUCH A CHALLENGE.  THUS WE DO NOT

 

WANT TO UNDER-ESTIMATE THE ROLE OF “PERSONALITY DESCRIPTION” IN THE ESTABLISHMENT OF

 

“PSYCHOLOGICAL FACTS.”

 

 

MENTAL DISORDERS AND “PSYCHIATRIC” SYNDROMES

 

A WHOLE RANGE OF CLINICAL PSYCHOLOGICAL AND NEUROPSYCHOLOGICAL FACTS MAY BE DEVELOP-

 

ED AND REPORTED ON IN A GIVEN CASE AND COULD INFLUENCE WHETHER OR NOT LEGALPROCEED-

 

INGS SHOULD GO FORWARD. AND, IF SO, WITHIN WHICH PARAMETERS?  INDEED, NOT ONLY CAN THE

 

EXISTENCE OF SYMPTOMS AND SIGNS OF MENTAL DISORDER BE DETERMINED BY MENTAL HEALTH

 

PROFESSIONALS (IN A CLASSIFICATION PROCESS CALLED “DIAGNOSIS”), BUT THE EFFECTS OF THESE

 

SYMPTOMS ON AN INDIVIDUAL’S JUDGMENT AND COMPETENCE MAY BE OPINED ON AS WELL.

 

 

 FOR EXAMPLE—AND WE WILL COVER THIS MORE THOROUGHLY LATER IN THIS PRESENTATION—

 

SOME OF THE DIAGNOSES THAT AFFECT AND DISTORT BEHAVIOR MAY INVOLVE RETARDATION,

 

SUBSTANCE ADDICTIONS, PSYCHOSES, ANXIETY DISORDERS, DEPRESSION, DISORDERS OF MOOD AND

 

AROUSAL, AND IMPULSE CONTROL DISORDERS, JUST TO NAME A FEW BROAD CATEGORIES. 

 

 

AN ADDITIONAL CLASS OF DISORDERS ARE CALLED “NEUROPSYCHOLOGICAL” DISORDERS OR DEFICITS

 

WHICH FOLLOW FROM ACQUIRED BRAIN INJURIES AND DISEASES.  EACH OF THESE DISORDERS MAY AD-

 

VERSELY AFFECT A PERSON’S JUDGMENT, INSIGHT, COMPETENCE AND BEHAVIORAL CONTROLS AS 

 

THEY RELATE TO HIS OR HER ABILITY TO CONFORM CONDUCT TO THE REQUIREMENTS OF THE LAW,

 

TO HAVE NORMAL SOCIAL INTERACTIONS OR, FOR EXAMPLE, TO DO HIS OR HER CUSTOMARY WORK.

 

 

NEEDLESS TO SAY, PSYCHOLOGICAL IMPAIRMENTS AFFECT CIVIL LIABILITY AND DAMAGES AND AFFECT

 

CRIMINAL CULPABILITY AND CRIMINAL DISPOSITIONAL MATTERS.

 

 

CHARACTER OR “PERSONALITY DISORDERS”

 

WE ARE NOT SOLELY CONCERNED WITH ‘PERSONALITY DESCRIPTION” OR “PSYCHIATRIC SYNDROME”

 

IN OUR WORK AS FORENSIC PSYCHOLOGISTS, BUT THERE IS ANOTHER SYSTEM OF LABELING INDIVI-

 

DUALS THAT DESCRIBES FLAWS IN THEIR “CHARACTER STRUCTURE” THAT DO NOT INVOLVE (PER SE)

 

THE SYMPTOMS OF THE “PSYCHIATRIC SYNDROMES,” BUT RATHER GO TO THE QUESTION OF THE PER-

 

SON’S PENCHANT FOR INTER-PERSONAL NEGATIVITY OR CONFLICTS.

 

 

THAT IS, AN INDIVIDUAL MAY POSSESS PERSONALITY TRAITS THAT BECOME ‘DEFECTS’ OF INTER-

 

ACTIONAL STYLE WITH OTHERS MORE SO THAN BEING PSYCHIATRIC SYNDROMES—THAT IS, A

 

CLUSTER OF ABNORMAL SYMPTOMS--PER SE.  LET ME EXPLAIN IT THIS WAY:  MOST OF US ARE

 

SUSPICIOUS AT ONE TIME OR ANOTHER ABOUT SOMEONE OR SOMETHING. “SUSPICIOUSNESS” IS A

 

NORMAL TRAIT.

 

 

BUT SUPPOSE A PERSON IS SUSPICIOUS ALL OF THE TIME; WITH EVERYONE AND IN EVERY SITUATION?

 

IT WOULD NOT BE LONG BEFORE THIS PERSON WOULD BE REGARDED AS UNENVIABLE COMPANY

 

AND PROVOKE PROBLEMS WITH OTHERS.  SIMILARLY, LET’S TAKE A NOMINALLY ‘GOOD’ PERSONALITY

 

TRAIT LIKE “HONESTY.” MOST PEOPLE ARE HONEST MOST OF THE TIME IN WHAT THEY SAY. BUT

 

SUPPOSE YOU CAME ACROSS AN INDIVIDUAL WHO WAS RELENTLESSLY HONEST AT ALL TIMES AND

 

UNDER ALL CIRCUMSTANCES?  IT IS EASY TO SEE THAT THIS PERSON WOULD MAKE ENEMIES BEFORE

 

VERY LONG (AS GOOD TACT AND DISCRETION REQUIRE ONE KEEPING ONE’S MOUTH CLOSED AT

 

TIMES). 

 

 

WE COULD, FIGURATIVELY, DESCRIBE THE FIRST PROBLEMATIC PERSON AS SUFFERING FROM A

 

“SUSPICIOUSNESS PERSONALITY DISORDER” AND THE SECOND AS SUFFERING FROM AN “HONESTY

 

PERSONALITY DISORDER.” WHY?  BECAUSE A “PERSONALITY DISORDER” DENOTES MERELY THE

 

EXAGGERATED EXISTENCE OF NORMAL TRAITS IN INDIVIDUALS TO LEVELS WHERE THE HAPLESS

 

PERSON USES THAT TRAIT AS AN INFLEXIBLE ONE-SIZE-FITS-ALL RESPONSE HABIT TO ALMOST ALL

 

INTERACTIONS WITH OTHERS.  SUCH A PERSON THINKS THAT HIS OR HER “INTERACTIONAL STYLE” IS

 

QUITE NORMAL BUT OTHERS MAY HOLD A COMPLETELY DIFFERENT VIEW.  

 

 

TECHNICALLY, THE FIRST EXAMPLE I GAVE, WHERE THE INDIVIDUAL IS SUSPICIOUS OF THE MOTIVES

 

OF EVERYONE AROUND HIM IS ACTUALLY MORE LIKELY TO BE CALLED A “PARANOID” PERSONALITY

 

DISORDER (NOT TO BE CONFUSED WITH A PARANOID DELUSIONAL DISORDER), AND THE SECOND IS

 

MORE LIKE TO EXEMPLIFY A “COMPULSIVE PERSONALITY DISORDER.”  IN FACT, THERE ARE ABOUT

 

TWENTY WELL-KNOWN CHARACTER OR PERSONALITY-STYLE DISORDERS FAMILIAR TO PSYCHOL-

 

OGISTS.

 

 

IN EVERY CASE THEY CAN BE DEEPLY IMPLICATED IN THE STUFF ABOUT WHICH LITIGANTS DISPUTE OR

 

WHICH MOTIVATE THEM AND THEY MAY EVEN CAST LIGHT ON CRIMINAL CONDUCT. SO DO NOT UN-

 

DERESTIMATE THE ROLE OF PERSONALITY DISORDERS IN EXPLAINING WHY CERTAIN INDIVIDUALS

 

REACT TO SITUATIONS (OR PROVOKE OTHERS) IN DAILY SOCIAL SITUATIONS THE WAY THAT THEY

 

DO.  IN ADDITION TO THE TWO TYPES MENTIONED ABOVE PSYCHOLOGY RECOGNIZES “ HISTRI0-

 

NIC” (OVERLY DRAMATIC), “PASSIVE-AGGRESSIVE” (SNEAKY, SABOTAGING), “ SCHIZOID”  (ALOOF),

 

“SCHIZOTYPAL” (ODD BALLS), “DEPENDENT”, “AVOIDANT,”” DEPRESSIVE-MASOCHISTIC,””  ANTI-

 

SOCIAL” AND “NARCISSISTIC” TYPES ARE AMONG THE SEVERAL OTHERS.  WHETHER OR NOT A PER-

 

SON, FOR EXAMPLE, A CRIMINAL DEFENDANT, HAS AN ANTI-SOCIAL PERSONALITY DISORDER (OR

 

THAT IN COMBINATION WITH A NARCISSISTIC PERSONALITY DISORDER (A COMBINATION WE NORM-

 

ALLY REFER TO AS A “PSYCHOPATH”) CAN HAVE GREAT BEARING ON SENTENCING AND RELATED DIS-

 

POSITIONAL MATTERS IN CRIMINAL LAW.

 

 

                                                                      THE DSM AND ICD MANUALS

 CLASSIFICATION OF MENTAL DISORDERS, PERSONALITY DISORDERS, AND PERSONALITY TRAITS

                                                                        WHAT IS A “DIAGNOSIS?”

 

CLINICAL PSYCHOLOGY AND PSYCHIATRY USES A DIAGNOSTIC MANUAL CALLED THE “DIAGNOSTIC

 

AND STATISTICAL MANUAL—IV” (DSM-IV).   AN INTERNATIONAL VERSION OF THIS CALLED THE ICD-10

 

ALSO EXISTS.  THE MENTAL DISORDER OR “PSYCHIATRIC” SYNDROMES INCLUDE DIAGNOSES LIKE

 

“SCHIZOPHRENIA,”” POST-TRAUMATIC STRESS DISORDER,”” SLEEP DISORDERS,” AND SO ON, ARE

 

LISTED AS “AXIS  I” DISORDERS IN THE DSM-IV.  WHILE PERSONALITY DISORDERS, PERSONALITY TRAITS

 

AND MENTAL RETARDATION-RELATED DEVELOPMENTAL DISABILITIES ARE CLASSIFIED AS “AXIS II”  

 

DISORDERS OR  TRAITS IN THAT MANUAL.  (THESE "AXES" HAVE BEEN ELIMINATED IN THE DSM-V).

 

 

WHAT A "DIAGNOSIS" IS  REALLY IS A LABEL OR CATEGORY—AMONG THE MANY CHOICES AVAILABLE--

 

THAT A MENTAL HEALTH PROFESSIONAL APPLIES TO AN INDIVIDUAL WHOM HE OR SHE BELIEVES

 

MOST OTHER MENTAL HEALTH PROFESSIONALS WOULD ALSO APPLY TO THAT PERSON UPON

 

EXAMINATION.  THESE DIAGNOSES HAVE MENTAL AND BEHAVIORAL CRITERIA BEFORE THEY CAN BE

 

APPLIED.  EVEN SO, SOMETIMES THE CRITERIA ARE VERY CLEAR, E.G., IN A DIAGNOSIS OF DELIRIUM,

 

AND THAT DIAG- NOSTIC LABEL WILL HAVE A VERY HIGH “RELIABILITY COEFFICIENT” BECAUSE

 

ALMOST ALL PROFES- SIONALS EXAMINING THAT INDIVIDUAL ARE LIKELY TO AGREE ABOUT SUCH A

 

LABEL AS APPLIED TO HIM.  BY CONTRAST, OTHER DIAGNOSES MAY HAVE CONSIDERABLY LOWER

 

“INTER-RATER” RELIABILITY COEFFICIENTS.  FOR EXAMPLE THE “SELF-DEFEATING PERSONALITY

 

DISORDER”   HAD RELIABILITY RATINGS LOW ENOUGH TO HAVE BEEN DROPPED FROM THE CURRENT

 

VERSION OF THE DSM-IV AND THE NEWER DSM-V MANUAL.

 

 

SOCIAL PSYCHOLOGICAL FACTS

 

THERE ARE LEGAL DISPUTES WHERE THE EVIDENCE OF HOW INDIVIDUALS RESPOND WHEN THEY ARE

 

ACTING IN GROUPS MIGHT BE RELEVANT. SOCIAL PSYCHOLOGISTS STUDY LEADERSHIP, CONFORMITY,

 

OBEDIENCE, ATTRIBUTION (HOW PEOPLE PERCEIVE THE CAUSES OF THINGS), AUTHORITARIANISM,

 

MOB BEHAVIOR, GROUP DECISION MAKING (FOR EXAMPLE, JURY DELIBERATIONS), OR PUBLIC OPINION.

                                                                                                                                      * 

FOR EXAMPLE, THE QUESTION OF WHETHER OR NOT A CRIMINAL DEFENDANT CAN GET A FAIR TRIAL

 

GIVEN ADVERSE PRE-TRIAL PUBLICITY IN A LOCAL AREA IS SOMETHING THAT A SOCIAL PSYCHOLOGIST

 

MAY HAVE AN OPINION ON.  SIMILARLY, THEY MAY BE INVOLVED IN JUROR SELECTION BASED ON IN-

 

TERVIEWS, OBSERVATIONS, QUESTIONNAIRES, POLLING AND OTHER VOIR DIRE TACTICS.  THE JUDGING

 

TACTICS.  THE JUDGMENTS OF INDIVIDUALS MAY BE AFFECTED BY SOCIAL PSYCHOLOGICAL FACTORS

 

LIKE THOSE THAT MAY EXIST INAUTHORITARIAN OR MOB ENVIRONMENTS.

 

 

THUS FAR WE HAVE SAID THAT MENTAL HEALTH PROFESSIONALS CAN HELP WITH THE DEVELOPMENT

 

OF “PSYCHOLOGICAL FACTS” IN THE NATURE OF THINKING PROCESSES AND BEHAVIOR IN INDIVID-

 

UALS AND GROUPS.   AND THE FIRST TASK OF A TRIER-OF-FACT IS TO ESTABLISH FACTS.  LET’S NOW

                                                                                                                               *

TURN TO HOW A MENTAL HEALTH PROFESSIONAL CAN HELP WITH THE SECOND TASK IN ADJUD-

 

ICATION.

 

                                                                                                  III.

         HELPING THE TRIER-OF-FACT ASSESS WITNESS AND LITIGANT TESTIMONIAL CREDIBILITY

 

 

EYEWITNESS ACCOUNTS AND IDENTIFICATIONS

 

ULTIMATELY IT IS THE PREROGATIVE OF THE FACT-FINDER TO JUDGE THE BELIEVABILITY OF A

 

WITNESS OR PARTY TO THE LITIGATION. HOWEVER, MENTAL HEALTH PROFESSIONALS MAY

 

CONTRIBUTE TO ASSESSMENT.  FOR EXAMPLE, IN BOTH CIVIL AND CRIMINAL CASES THE RELIABILITY

 

OF EYE-WITNESS TESTIMONY MAY TURN OF PSYCHOLOGICAL FACTORS SUCH AS THE ROLE OF

 

AMBIENT CONDITIONS THAT OBTAINED AT THE TIME THE PERCEPTIONS OCCURRED, PERCEPTION-

 

ACCURACY ITSELF, THE COMPLEXITY OF THE EVENTS, MEMORY FACTORS, EMOTIONAL STATES,

 

SUGGESTIBILITY AND OTHER FACTORS.  RESEARCH PSYCHOLOGISTS IN THESE AREAS HAVE ESTAB-

 

LISHED THAT CERTAIN FACTORS MAY BIAS A PERSONS REPORTS ABOUT PERCEIVED EVENTS. AND,

 

OBVIOUSLY, SERIOUS MENTAL ILLNESS OR NEUROLOGICAL DEFICITS MAY HAVE EXPLANATORY VALUE

 

IN ESTIMATING THE CREDIBILITY OF A WITNESS. DECEPTION DETECTION THE FIRST AND OBVIOUS

 

ROLE OF PSYCHOLOGISTS IN THIS AREA IS TO FERRET OUT MALINGERING. BUT ANOTHER INTERESTING

 

AREA THAT MAY INVOLVE PSYCHOLOGISTS (AND CERTAINLY INVOLVES PSYCHOLOGY) IS THE FIELD

 

OF STRESS AND DECEPTION DETECTION.  POLYGRAPHERS FOR EXAMPLE ARE CERTIFIED PROFES-

 

SIONALS—A FEW OF WHOM ARE ACTUALLY PSYCHOLOGISTS.  HOWEVER, THERE ARE JUDICIAL

 

HEARINGS WHERE, IN THE LEGAL REQUIREMENTS ARE MET, THEIR FINDINGS AND TESTIMONY MAY BE

 

ADMITTED INTO EVIDENCE.

 

 

IMPEACHMENT OF CREDIBILITY

 

I ONCE WAS CALLED UPON TO ADDRESS THE CREDIBILITY OF AN INMATE WITNESS WHO TESTIFIED

 

THAT HE OVERHEARD INCRIMINATING TALK BY ANOTHER PRISONER WHO WAS ON TRIAL FOR A

 

HEINOUS CRIME. IT TURNS OUT THAT THE ADVERSE WITNESS WAS A LONG-TERM MENTAL PATIENT.

 

THE DEFENSE TEAM, MY CLIENT IN THIS MATTER, ASKED ME TO REVIEW HIS MENTAL HEALTH

 

RECORDS BECAUSE HE, THE WITNESS, WAS CLAIMING THAT HE ACTUALLY HAD NEVER BEEN

 

MENTALLY ILL; THAT HE HAD FAKED EPISODES OF MENTAL ILLNESS FAIRLY CONSISTENTLY OVER THE

 

YEARS IN CUSTODY. I READ THE RECORDS AND TESTIFIED THAT HIS DENIAL OF A HISTORY OF MENTAL

 

ILLNESS WAS PROBABLY NOT CANDID.  MY OPINION WAS RELEVANT TO THE ASSESSMENT OF HIS

 

THEN CURRENT CREDIBILITY.

 

 

THUS FAR WE HAVE DISCUSSED THE ROLE OF PSYCHOLOGISTS IN HELPING TRIERS CLARIFY “PSY-

 

CHOLOGICAL FACTS” SUCH AS PERSONALITY TRAITS, CHARACTER DISORDERS, THE SYMPTOMS AND

 

SIGNS OF MENTAL DISORDERS (PSYCHIATRIC SYNDROMES—INCLUDING NEUROPSYCHOLOGICAL

 

DEFICITS)—AND THE INFLUENCE OF GROUPS ON AN INDIVIDUAL’S THINKING AND CONDUCT.  THESE

 

ARE ALL “MENTAL STATE” ISSUES.  BUT THERE IS ANOTHER ARE OF PSYCHOLOGICAL OPINIONIZING

 

THAT MAY ARISE IN ADJUDICATION.  A PSYCHOLOGIST MAY OFFER OPINIONS OF THE MIXED LAW-

 

FACT QUESTIONS THAT ARISE AND THAT WE CALL “MENTAL (PSYCHO-LEGAL) STATUS” EVALUATIONS. 

 

THIS INVOLVES MIXED LAW-FACT TESTIMONY BECAUSE THESE MATTERS MIX “PSYCHOLOGICAL FACTS”

 

WITH LEGAL CRITERIA.  FOR EXAMPLE A “DISABILITY” IS NOT A “THING” LIKE A SYMPTOM OR AN

 

IMPAIRMENT IS, RATHER IT IS A  MEDICAL-LEGAL OR PSYCHO-LEGAL STATUS.  SIMILARLY, “COMPET-

 

ENCE” AND “CAPACITY” ARE MIXED LAW-FACT CATEGORIES BECAUSE THE INHERENTLY MIX BOTH

 

FACTS AND LEGAL STANDARDS OR TESTS.  HENCE, IN THE FIELD OF FORENSIC PSYCHOLOGY WE

 

WOULD CALL THEM “MENTAL (PSYCHO-LEGAL) STATUS” DETERMINATIONS OR DESIGNATIONS.

 

 

                                                                                                   IV.

                                          HELPING THE TRIER-OF-FACT APPLY LEGAL STANDARDS

                                               WHERE “MENTAL STATE” MEETS “MENTAL STATUS”

 

IN ORDER TO MEANINGFULLY PARTICIPATE IN THE JUDICIAL PROCESS AND TO AVOID WASTING

 

JUDICIAL RESOURCES, WITNESSES AND PARTIES MUST BE ABLE TO THINK CLEARLY ENOUGH TO

 

COMPREHEND AND EVALUATE THE FACTS, ISSUES AND INTERESTS AT STAKE. THEY MUST ALSO BE

 

ABLE TO CONTROL THEIR BEHAVIOR SUFFICIENTLY SO AS TO NOT DISRUPT THE PROCEEDINGS OR TO

 

DEFEAT THEIR OWN CREDIBILITY AND INTERESTS.

 

 

MENTAL DISORDERS AND PERSONALITY DISORDERS CAN WORK TO DEFEAT COMPETENCE AND CAPA-

 

CITY IN A WITNESS OR LITIGANT THUS DISCREDITING THE PERSON, REQUIRING A POSTPONEMENT OF

 

THE LEGAL PROCEEDINGS, OR REQUIRING THE SUBSTITUTION OF A SURROGATE DECISION-MAKER FOR

 

THE AFFECTED PERSON IN ALL MATTERS LEGAL (IF NOT IN ALL OF HIS OR HER PERSONAL AND BUSI-

 

NESS TRANSACTIONS PERIOD).

 

 

SO FAR, MY COMMENTS ABOVE HAVE GONE TO THE QUESTION OF WHAT ROLE A PSYCHOLOGIST

 

MAY PLAY IN ESTABLISHING THE PSYCHOLOGICAL FACTS OF INTEREST OR THE OPINION ON A PART-

 

ICIPANT’S RELIABILITY AND CREDIBILITY. THEY ADDRESS, IN OTHER WORDS, THE “MENTAL STATE” OF

 

THE INDIVIDUAL IN QUESTION AT SOME SPECIFIED TIME: BEFORE AN EVENT, DURING AN EVENT, OR

 

CURRENTLY.  FOR EXAMPLE THE QUESTIONS “WAS SHE SUFFERING FROM PSYCHOSIS AT THE TIME SHE

 

SIGNED THE CONTRACT? OR “IS THE DEFENDANT MENTALLY-RETARDED?”  ARE EXAMPLES OF

 

“MENTAL STATE” QUESTIONS.

 

 

BY CONTRAST, THERE ARE ALSO AREAS OF OPINIONIZING BY PSYCHOLOGISTS (AND PSYCHIATRISTS)

 

THAT ADDRESS “MENTAL STATUS.”  FOR EXAMPLE, “IS THIS PERSON, IN YOUR VIEW, DOCTOR, "GRAV-

 

ELY DISABLED?’”  OR, “IS THIS PERSON DISABLED BASED ON AN INABILITY TO COMPETE IN THE LABOR

 

MARKET FOR PSYCHOLOGICAL REASONS?” OR “DOES THIS PERSON HAVE THE MENTAL CAPACITY TO

 

EVALUATE THE RISKS AND BENEFITS OF (SOME) MEDICAL PROCEDURE?”  ARE MENTAL STATUS QUES-

 

TIONS IF THEY ARE ANSWERED AS THEY ARE POSED.  (PLEASE NOTE THAT “MENTAL STATUS" QUES-

 

TIONS TYPICALLY IMPLY SOME OPINION ON MENTAL STATE, AND MAY ALSO TOUCH TOUCH UPON, IF

 

NOT ANSWER OUTRIGHT, THE “ULTIMATE QUESTIONS” POSED BY THE LAW REGARDING SAID "MENTAL

 

STATUS" ISSUES. 

 

 

SOMETIMES THE ASSESSMENT OF ‘MENTAL STATUS’ IS RELEVANT TO PAST EVENTS.  FOR EXAMPLE,

 

THE QUESTION OF WHETHER OR NOT AN INDIVIDUAL HAD “TESTAMENTARY CAPACITY” AT THE TIME

 

OF EXECUTING A WILL IS ONE OF MENTAL STATUS AT SOME TIME PRIOR TO THE PROCEEDINGS UNDER

 

WAY. (AN EXPERT MIGHT TESTIFY THAT SAID PERON WAS UNDER AN LPS CONSERVATORSHIP AT

 

THE TIME IN QUESTION; INDEED INCOMPETENT IN BUSINESS MATTERS).

 

 

WHAT IS NECESSARY FOR A PERSON MEANINGFULLY PARTICIPATE IN A DEPOSITION, A HEARING OR A

 

TRIAL.  THE TWO REQUIREMENTS ARE ADEQUATE MENTATION (COMMUNICATION) AND ADEQUATE

 

BEHAVIORAL PARAMETERS (THAT IS, ADEQUATE BEHAVIORAL CONTROLS AND SELF-SERVING MOTI-

 

VATION).

 

 

MENTATION: AS ADEQUATE COMPREHENSION

 

LET’S START WITH MENTATION.  THE FIRST CONSIDERATION IS COMPREHENSION. DOES THE PERSON

 

COMPREHEND THE ISSUES AND THE INTERESTS AT STAKE IN A LEGAL CONTEST? CAN THEY MEANING-

 

FULLY STATE THESE ISSUES USING THEIR OWN WORDS?  DEVELOPMNTAL DISABILITY, INTOXICATION,

 

BRAIN SYNDROMES AND MEDICAL ILLNESSES, AND THE INTERFERENCES IN NORMAL THOUGHT PROC-

 

ESSES BY PSYCHOTIC SYMPTOMS (DELUSIONS, HALLUCINATIONS, DISORGANIZATION) MAY DEFEAT

 

COMPREHENSION AND THUS RENDER THEIR MENTAL STATUS AS ONE WHICH PRECLUDES PARTICIP-

 

ATION—AS “INCOMPETENT?”  

 

 

BUT NOTE, EVEN AN UNEDUCATED PERSON OR AN OTHERWISE PERSON MAY STILL HAVE THE ABILITY

 

TO COMPREHEND THE NATURE OF THE PROCEEDINGS UNDERWAY, TO COOPERATE WITH COUNSEL,

 

AND KNOW WHAT ARE HIS OR HER INTERESTS THEREIN. IT JUST DEPENDS ON WHAT ARE THE DEMAND

 

CHARACTERISTICS OF THE PROCEEDINGS AND THE ISSUE.  SOME CASES TURN ON WHETHER OR NOT A

 

PARTICIPANT’S MEMORY IS NORMAL OR IMPAIRED, BUT OTHERWISE MAY NOT BE COMPLEX IN REGARD

 

TO THE DISPUTED FACTS. IN THIS INSTANCE THE THRESHOLD FOR A PSYCHOLOGIST TO REGARD A WIT-

 

NESS OR LITIGANT AS “INCOMPETENT” TO COMPREHEND OR PARTICIPATE WOULD BE RATHER HIGH.

                                                                                                                                      *

 

 

HOWEVER OTHER CASES, BY CONTRAST, TURN ON NUANCED AND SUBTLE EVIDENTIARY DISPUTES

 

EMBEDDED IN COMPLEX CONTEXTS WHERE THE KINDS OF IMPAIRMENTS THE PERSON MAY SUFFER

 

FROM ARE HIGHLY RELEVANT. THUS IN THE SECOND CASE, WHERE SUBTLE AND COMPLEX MATTERS

 

MUST BE EVALUATED AND UNDERSTOOD BY ALL OF THE PARTICIPANTS, THE THRESHOLD MIGHT BE

 

LOWERED RESULTING IN A FINDING THAT A PERSON’S IMPAIRMENTS WERE OF SUCH A DEGREE AS TO

 

RENDER HIM “INCOMPETENT” OR “INCAPACITATED.”

 

 

AGAIN, AN ASSESSMENT OF A MENTAL STATUS ISSUE SUCH AS “COMPETENCE,” LIKE THE ASSESSMENT

 

OF “MENTAL STATE AT THE TIME OF (SOME EVENT OR CONDUCT)”… ISSUES, MAY BE RETROSPECTIVE

 

IN NATURE FROM THE DATE OF THE INQUIRY AND EVALUATION. FOR EXAMPLE, “WAS THE DEFEND-

 

ANT COMPETENT TO ANNOUNCE A DESIRE TO HAVE HIS MIRANDA RIGHTS READ TO HIM AND RESPEC-

 

TED BY THE POLICE, OR TO HAVE WAIVED THEM ON SOME PRIOR DATE?” IS A RETROSPECTIVE MENTAL

STATUS QUESTION (BUT CLOSELY LINKED TO THE DETERMINATION OF MENTAL STATE QUESTIONS

                                                                                                       *

TOO).

 

                                                                                                       *       

MENTATION: AS COHERENT COMMUNICATION

 

THE NEXT CONSIDERATION IS THIS; CAN THE PERSON NARRATE HIS OR HER MEMORIES AND THOUGHTS

 

IN A COHERENT WAY TO OTHER PEOPLE.  IF THE PERSON’S SPEECH IS REPLETE WITH RANDOM, NON-

 

SENSICAL, ASSOCIATIONS, OR DELUSIONAL MATERIAL, OR IF HE OR SHE IS SERIOUSLY APHASIC (UNABLE

 

TO PROCESS SPOKEN OR RECEIVED LANGUAGE FOR NEUROLOGICAL REASONS), OR IS SIMPLY SO DISOR-

 

GANIZED FROM DEMENTIA THAT SPEECH IS INCOHERENT, THEN HE OR SHE MAY BE EXCLUDED FROM

 

DIRECT PARTICIPATION IN A PROCEEDING. 

 

 

HOWEVER, THE QUALITY OF THE SPEECH, OR THE SOPHISTICATION THAT MAY BE INFERRED FROM IT,

 

DOES NOT HAVE TO BE HIGH IN ORDER TO PARTICIPATE.  IT SIMPLY HAS TO BE ADEQUATE ENOUGH

 

TO DEMONSTRATE THAT HE OR SHE UNDERSTANDS THE BASIC ISSUES, QUESTIONS PENDING AND

 

INTERESTS AT STAKE. THEY DO NOT HAVE TO GIVE CLEAR, PRECISE, SPECIFIC, RELEVANT, CONSISTENT,

 

LOGICAL, INSIGHTFUL, COMPLETE, SIGNIFICANT, ADEQUATE NOR FAIRLY SPOKEN ANSWERS IN ORDER

 

TO PARTICIPATE IN A PROCEEDING. THE TRIER-OF-FACTS CAN DECIDE HOW EFFICIENT AND

 

PERSUASIVE A PARTICIPANT’S SPEECH (TESTIMONY) IS.

 

 

BEHAVIORAL CONTROLS

 

NOTHING CAN BE MORE DISRUPTIVE TO A LEGAL PROCEEDING OR MORE UNDERMINING OF PARTICI-

 

PANTS’ RIGHTS THAT THE PRESENCE OF A PERSON WHO CANNOT CONTROL HIS IMPULSES TO SPEAK

 

AT THE APPROPRIATE TIMES, TO SPEAK WITH PROPER RESTRAINT (AVOIDING EXPLETIVES), OR TO

 

ACT-OUT IN THE PRESENCE OF FACT-TRIERS.

 

 

THERE ARE NUMEROUS REASONS THAT A PERSON’S BEHAVIORAL CONTROLS MAY BE DEFECTIVE TO

 

THE POINT THAT HE OR SHE LOSES COMPETENCE TO PARTICIPATE IN SOME LEGAL PROCEEDING.  

 

PROBABLY THE MOST COMMON REASON IS JUST PLAIN OLD AND BAD CHARACTER TRAITS.  IN SUCH

 

CASES PROCEEDINGS MAY HAVE TO GO FORWARD WITH THE PERSON IN ABSENTIA.  THIS IS BECAUSE

 

THE PERSON IS CHOOSING TO ‘ACT OUT’ BUT IS CAPABLE OF NOT DOING SO IF HE OR SHE SO-WILLED.

                        

 

BY CONTRAST, THERE ARE MENTAL STATES CHARACTERIZED BY FORMAL THOUGHT DISORDERS (LIKE

 

THE DELUSIONS AND HALLUCINATIONS OF A PSYCHOSIS), OR OF SUCH EXTREME AND LABILE EMOT-

                                                                                                                                       *

IONALITY AND IMPULSE DYSCONTROL SYNDROMES, THAT A PARTICIPANT—A LITIGANT, DEFENDANT,

 

OR WITNESS—SIMPLE CANNOT CONTROL HIMSELF OR HERSELF. BEHAVIORAL DYS-CONTROL OWING TO

 

THE NON-VOLITIONAL FACTORS OF MENTAL ILLNESS MAY THEREFORE RENDER PERSONS INCOMPET- 

                                                                                                        * 

ENT TO MEANINGFULLY PROTECT THEIR RIGHTS IN LEGAL SETTINGS (E.G., AGAINST SIGNING A CONFES-

                                                                                                                                      *

SION IMPULSIVELY) OR TO STAND TRIAL.

 

 

PEOPLE WITH DIAGNOSES OF SERIOUS MENTAL DISORDERS LIKE THOUGHT DISORDERS (e.g., SCHIZ-

 

OPHRENIA) OR MOOD DISORDERS (E.G., THOSE IN A MANIC STATE) OR THOSE WITH THE DISINHIBITION

 

SYNDROMES ASSOCIATED WITH BRAIN DISEASES OF INJURIES ARE AT HIGH RISK OF SABOTAGING THE

 

CREDIBILITY AND DEFEATING THEIR OWN RIGHTS DUE TO NON-VOLITIONAL BEHAVIORAL DYSCONTROL.

                     

                                                                                                        *

TESTS OF COMPETENCE AND CAPACITY

 

THERE ARE AT LEAST THREE DOZEN TESTS OF COMPETENCE IN AMERICAN JURISPRUDENCE: THESE ARE

                                                                                                        *   

JUST A FEW OF THE COMMON ONES:

 

       1.  COMPETENT TO PROVIDE FOOD, CLOTHING AND SHELTER FREE OF DISRUPTION BY MENTAL

             ILLNESS?  (A TEST OF CIVIL COMMITMENT)

 

       2.  COMPETENCE TO EXECUTE A WILL?

 

       3.  COMPETENCE TO SIGN A CONTRACT?

 

       4.  COMPETENCE TO REPRESENT ONESELF IN A LEGAL PROCEEDING?

 

       5.  COMPETENCE TO STAND TRIAL?

 

       6.  COMPETENCE TO WITHSTAND EXECUTION OF SENTENCE?

 

       7.  COMPETENCE TO TESTIFY UNDER OATH?

 

       8. COMPETENCE TO LIVE AS AN EMANCIPATED MINOR?

 

       9. CAPACITY TO MAKE ONE’S OWN MEDICAL DECISIONS?

 

      10.  COMPETENCE TO BE TRIED AS AN ADULT?

 

 

AND THE LIST COULD ON. NEW TESTS MIGHT BE ADDED TO THE LIST.  FOR EXAMPLE, AS STATES

 

ADOPT MEDICALLY-ASSISTED SUICIDE LAWS, I AM SURE THAT SOME LEGISLATURES WILL WRESTLE

 

WITH THE QUESTION OF WHETHER THE LAW SHOULD CONTAIN A FINDING OF ‘COMPETENCE TO

 

DECIDE TO DIE’ (IN PHYSICIAN-ASSISTED SUICIDES) REQUIREMENTS.

 

 

THE COMMON DENOMINATOR IN ALL TESTS OF COMPETENCE AND CAPACITY ARE THESE THREE

 

THINGS:  WHETHER THE INDIVIDUAL IS MENTALLY COMPOSED ENOUGH TO (1) WEIGH THE RISKS AND

 

BENEFITS OF ALTERNATE COURSES OF ACTIONS OR OPTIONS,  (2)  CAN COMPREHEND FACTS AND

 

SELF-INTERESTS AND MEANINGFULLY COMMUNICATE THE SAME TO OTHER PARTICIPANTS IN THE

 

LEGAL SETTING (WHETHER IT IS IN A POLICE STATION, IN DEPOSITION OR IN A HEARING OR TRIAL),

 

AND (3) WHETHER OR NOT (DUE TO MENTAL ILLNESS) HE OR SHE CAN CONTROL HIS OR HER

 

CONDUCT SO AS NOT TO DEFEAT THEIR OWN INTERESTS OR WASTE JUDICIAL RESOURCES.

 

                                                                                                 V.

   WHAT A  JURIST OR JURY SHOULD EXPECT FROM A PROFESSIONAL PSYCHOLOGICAL WITNESS

 

ETHICS: EXPERTS PERFORM CONSULTATIVE TASKS, REPORT-WRITING, AND TESTIMONY COMPET-

                 ENTLY;  WITH RELEVANCE, AND WITH AN APPROPRIATE SENSE OF RESPONSIBILITY.

 

OBJECTIVITY: EVEN-HANDEDNESS WITH THE DATA. “THE EXPERT HIDES-NOTHING AND EXPLAINS

                 EVERYTHING.”  USES TESTS, METHODS OF EVALUATION, AND CONCEPTS THAT PASS FRYE                              AND DAUBERT  TESTS OF LEGAL ADMISSIBILITY (i.e., THE METHODS, INSTRUMENTS, AND

                 EXPLANTORY CONSTRUCTS MUST BE CREDIBLE IN THE SCIENTIFIC AND PROFESSIONAL                                    COMMUNITY.

 

LIMITATION OF HIS OR HER OWN OPINION TO THE FACTUAL OR PSYCHO-LEGAL QUESTIONS POSED                        BY THE ATTORNEYS OR THE COURT; WHETHER TESTIFYING AS A PERCIPIENT WITNESS OR AN

                 OPINION (“EXPERT”) WITNESS. CROSS-CULTURAL COMPETENCE IS ALWAYS GERMANE IN THIS

                 REGARD. 

 

INFORMATIVE EXPERTISE:  HE OR SHE SHOULD BE CONVEYING INFORMATION AND INSIGHT THAT

                EDUCATES THE TRIER-OF-FACT BEYOND AND TO CONCLUSIONS THAT COULD BE REACHED

                BY MERE COMMON SENSE AND COMMON KNOWLEDGE. IT IS ACCEPTABLE TO COMMENT ON

                TYPICAL USES OF VARIOUS PSYCHOTHROPHIC MEDICATIONS AND THEIR TYPICAL SIDE-EFFECTS

                SO LONG AS THE PSYCHOLOGISTS DOES NOT USE NUMBERS.  THAT IS, DO NOT COMMENT ON

                RECOMMENDED DOSAGES, FREQUENCIES OF ADMINISTRATION, AND THE LIKE.

 

PROBATIVE VALUE:  THE EXPERT PSYCHOLOGIST OR PSYCHIATRIST SHOULD STATE HIS OR HER OPIN-

               IONS WITH SOME INDICATION OF THE “CONFIDENCE” WITH WHICH THE VIEW OR PROFESSIONAL

               CONCLUSION IS HELD.  THAT IS, WHEN THE EXPERT PROFFERS SOME DIAGNOSIS, CONCLUSION,

               OR OPINION ABOUT THE EXISTENCE OF SOME PSYCHOLOGICAL FACT, IS HE SAYING THAT WHAT

               HE BELIEVES AND HAS CONCLUDED (ON SOME FINDING) IS TRUE TO A "REASONABLE MEDICAL

               CERTAINTY,” OR “MORE LIKELY TO BE TRUE THAN NOT" (THAT IS, "PROBABLY TRUE")? ONE CER-

               TAINLY HOPES SO.  BY CONTRAST, NO PROFESSIONAL CONCLUSION SHOULD BE BASED ON 

               REASONING THAT THE EXPERT BELIEVES MAY ONLY "CONCEIVABLE," "PLAUSIBLE," OR "POSSI-

               BLE” AS THIS CONSTITUTES SPECULATION.

              

CONVICTION: AN EXPERT SHOULD VIGOROUSLY DEFEND HIS OR HER POINT OF VIEW, PROVIDED

               THAT THE VIEWPOINT HAS CONSIDERED CONTRARY EVIDENCE OR POSSIBILITIES, AND THE

                EXPERT’S TESTIMONY AND STYLE SHOULD BE THE SAME REGARDLESS OF WHO IS EXAMINING

                OR CROSS-EXAMINING HIM OR HER.  ANOTHER VERY IMPORTANT ASPECT OF CONVICTION IS

                THIS: AN EXPERT SHOULD STATE, FOR EACH OPINION OR PROFERRED FACT, WHETHER OR NOT

                SHE BELIEVES THAT IT IS (1) CONCEIVABLE?, (2) PLAUSIBLE?, (3) POSSIBLE? (4) PROBABLE OR

                LIKELY TO BE PREPONDERENTLY TRUE (51% OR MORE LIKE TO BE TRUE TO A "MEDICAL PROB-

                ABILITY), (5) CLEARLY AND CONVINCINGLY TRUE? ("75%"  OR MORE LIKELY TO BE TRUE) OR                           (6)TRUE BEYOND A REASONABLE DOUBT; TO A "MEDICAL CERTAINTY" (95% OR MORE LIKELY TO                 BE TRUE). 

 

CHOICE OF EXPERTS:  A TRIER-OF-FACT MAY FIND A PSYCHIATRIST MORE INFORMATIVE AND

               RESOURCEFUL WHERE THE PSYCHO-LEGAL ISSUES OF MENTAL STATE AND MENTAL STATUS

               HAVE EMBEDDED IN THEM MEDICAL-PHYSIOLOGICAL AND DISEASE EVALUATION FACTORS.

               THE FOCUS OF CLINICAL PSYCHIATRY IN MODERN TIMES IS ALMOST EXCLUSIVELY ON

               PSYCHIATRIC SYMPTOM MANAGEMENT.  AS A RESULT, PSYCHIATRISTS ARE LICENSED TO

               WRITE PRESCRIPTIONS AND ORDER “LABS” UNLIKE PSYCHOLOGISTS.  SOME PSYCHIATRIST                            STILL PRACTICE A KIND PSYCHOTHERAPY CALLED “PSYCHOANALYSIS” AND THEY ARE DEEPLY

               CONCERNED ABOUT PERSONALITY, UNLIKE MOST OF THEIR COLLEAGUES, BUT WHEN THEY                          ARE PRACTICING “PSYCHOANALYSIS” THEY ARE, IN FACT, PRACTICING PSYCHOLOGY; NOT  

               MEDICINE.

 

               BY CONTRAST, A TRIER-OF-FACT WOULD LIKELY FIND A CLINICAL OR FORENSIC PSYCHOLOGIST

               MORE INFORMATIVE IN ACTUALLY EXPLAINING THE LIMITS ON INSIGHT AND KNOWLEDGE

               THAT A PERSON HAS, WHY HIS OR HER BEHAVIOR AND MENTATION IS DISORDERED (IF IT IS),

               TO WHAT DEGREE AND COMPARED TO WHOM IS THIS PERSON “ABNORMAL” IN MATTERS

               PSYCHOLOGICAL.   THE STUDY OF PERSONALITIES AND GROUP BEHAVIOR AND INFLUENCES

               ARE THE PROVINCE OF PSYCHOLOGY BECAUSE PSYCHOLOGISTS OFTEN DO WIDE-RANGING

               PSYCHOLOGICAL TESTING.  PSYCHOLOGICAL TESTING IS VERY INFORMATIVE WHEN

               COMPETENTLY INTERPRETED.

 

               CLINICAL AND FORENSIC NEUROPSYCHOLOGISTS TEND TO BE MORE INFORMED ABOUT

               PERSONALITY DYNAMICS THAN PSYCHIATRISTS AND TEND TO BE MORE INFORMED THAN

               CLINICAL PSYCHOLOGISTS ABOUT BRAIN DISEASES AND DYSFUNCTION AND THEIR EFFECTS

               ON BEHAVIOR AND TO DISTINGUISH   THE EFFECTS OF BRAIN SYNDROMES ON BEHAVIOR AS

               CONTRASTED TO THE EFFECTS OF DISORDERED PERSONALITY TRAITS ON A PERSON’S

               CONDUCT(A USEFUL DISTINCTION BECAUSE THE DISORDERED SYMPTOMS ARISING FROM

               BOTH SOURCES: THE BRAIN (”ORGANICITY”) OR “PERSONALITY” CAN MIMIC EACH OTHER,                              AND NOT ONLY CO-EXIST BUT CAN AND DO INTER-ACT IN THE FORMATION  OF SYMPTOMS

               AND SIGNS OF PSYCHOPATHOLOGY. NEUROPSYCHOLOGIST ALSO DO EXTENSIVE NEURO-

               PSYCHOLOGICAL AND PERSONALITYSTING.     

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                                                            BIOGRAPHICAL NOTE ON DR. OSHOOSI

 

Michael Oshoosi, Ph.D., J.D., originally a native of Philadelphia, Pennsylvania, resides in the San Fran- cisco Bay Area  of northern California.

 

Concurrent with his founding and leading the Ethnic Art Studies Division of the California College of Arts & Crafts (CCAC) and teaching cross-cultural psychology and African-American history and liter- ature there starting  in 1971. While working part-time for most the ensuing decade in order to attend graduate schools in Berkeley, Ca., he obtained a Ph.D. in social-clinical psychology from prestigious  Wright Institute (Berkeley, 1976) and a law degree from the Boalt Hall School of Law (University of California, Berkeley, 1981). 

 

Thereafter, he briefly served as an extern clerk for the late Hon. Robert Peckham, chief judge of the Federal District Court, Northern California Division (1980), but decided to pursue professional cer- tification as this country’s first board certified forensic psychologist.  While working in the court, his first assignment was to help to edit the official publication of the opinion of judge Peckham in the landmark "Larry P." case (Larry P. v. Riles, 1979, 793 F2d 969) wherein the court ruled that standard- ized "I.Q." test result could not be used as a basis for placing African-American children in classes for the "mentally retarded" in public schools.  From 1982 through 1984, Dr. Oshoosi served as the assoc- iate editor of The Black Scholar magazine, based in San Franscisco, California. And following from that he worked--through the balance of the 1980's--in Bay Area community mental health centers and in the criminal justice mental health program in Alameda county, California.

 

Having been certified in three forensic academies and is a member of the Association of Black Psy- chologists. Dr. Oshoosi  has consulted on cases involving all four of the main areas of forensic psych- ology: family law, criminal law, disability law and civil litigation; working as a forensic psychologist in the Bay Area of California.

 

In his private life he draw on his experience and knowledge derived from working in the civil rights movement (SNCC--1965-1969) to fathom current issues of social justice and jurisprudence.