Mental Health Expert Testimony: Legal Professionals' Preferences in Criminal Responsibility Evaluations

Criminal responsibility evaluations (CRE) represent the most substantial link between the legal and psychological communities. As the number of CRE conducted each year continues to increase, it is imperative that skilled mental health experts provide vulnerable defendants with sound assessments. Research has shown that mental health expert testimony has a powerful impact on the outcome of criminal responsibility cases. The objective of this study was twofold, it sought to: (a) Identify the aspects of testimony legal professionals perceive as being most important in a criminal responsibility evaluations; (b) Determine the discipline of mental health expert witness most preferred for each element of testimony. The major findings of this study were: (a) legal professionals’ preference for psychologists as mental health expert witnesses, (b) there was agreement between legal professionals’ ratings of the most important items of testimony and the type of mental health expert witness preferred to testify. Mental Health Expert Testimony iv Table of Contents Approval Page . ii Abstract.iii List of Tables.vi List of Figures.vii Chapter 1: Introduction.1 Legal Standards Guiding Criminal Responsibility Evaluations.2 Evaluations for Competency to Stand Trial . 4 Evolution of Competency and Criminal Responsibility Assessments . 5 Mental Health Expert Witnesses Testimony . 6 Perceptions of Difference between Psychiatrists and Psychologists.8 Purpose of Research . 11 Chapter 2: Methods . 12 Participants . 12 Materials and Procedure . 13 Chapter 3: Results.15 Chapter 4: Discussion.26 Importance of Elements of Testimony . 26 Preference of Discipline of Mental Health Expert Witness . 28 Comparison to Prior Research.29 Limitations of the Study . 30 Future Research Recommendations . 30 Mental Health Expert Testimony v References . 31 Appendix A Chronological List of Forensic Assessments . 38 Appendix B Informed Consent and Survey Measure . 41 Appendix C Curriculum Vitae . 49 Mental Health Expert Testimony vi List of Tables Table 1 Five Highest Rated Elements of Testimony by Legal Professional . 17 Table 2 Five Lowest Rated Elements of Testimony by Legal Professional.20 Table 3 Difference Values for Each Element of Testimony . 22 Table 4 Percentage of Mental Health Expert Witnesses Ranked First to Testify on . 24 Mental Health Expert Testimony vii List of Figures Figure 1 Mean item importance by legal professional.16 Mental Health Expert Testimony 1 Chapter 1 Introduction Evaluations of criminal responsibility and competence represent the most significant overlap between the legal and mental health communities. The two evaluations, Criminal Responsibility Evaluations (CRE) and Competency to Stand Trial (CST) have a similar purpose, which is to ensure fair treatment of individuals; yet the evaluations answer slightly different questions. The CST assessment is a legal due diligence that answers the question: does the defendant possess the ability to understand and participate in their legal defense? Whereas, the criminal responsibility evaluation explores the question commonly known as the insanity defense: what was the defendant’s mental status at the time of the crime? (Reid, 1998; Zapf & Roesch 2009). Given that CST evaluations are included in the CRE, the relevant testimony overlaps as well. Stone (1975) called CST assessments, “the most significant mental health inquiry pursued in criminal law” (p. 200). Estimates of the prevalence of CREs conducted to investigate an insanity plea vary from 0.1% to 8% of felony cases (Melton, Petrila, Poythress, & Slobogin, 1997). These values correlate with the approximate 2% to 8% of felony defendants assessed for CST (Bonnie, 1992; Hoge et al., 1997). In 1991, it was estimated that 30,000 CST evaluations were conducted with defendants annually in the United States (Wrightsman, Neitzel, & Fortune, 1998). By the year 2000, this estimate increased to approximately 600,000 (Bonnie and Grisso, 2000). Roesch, Zapf, Golding, and Skeem (1999) attribute this dramatic increase to the growing number of felony arrests in the United States. Judges in criminal court consider the Mental Health Expert Testimony 2 results of CST evaluations more often than any other evaluation (Bonnie & Grisso, 2000). Of defendants assessed for competency, 70% to 90% are deemed competent (Nicholson & Kugler, 1991; Roesch & Golding, 1980; Roesch et al., 1999). These evaluations, conducted by mental health professionals, represent the most substantial connection between the psychological and legal community. Legal Standards Guiding Criminal Responsibility Evaluations The ethical roots of CREs originated from England’s 12 century church, which established the concept of mens rea, meaning “guilty mind” or “evil intent” (Zapf, Zottoli, & Pirelli, 2009). This old world idea remains integrated into today’s legal standards. Mental health and legal professionals alike use mens rea as they seek to confirm a defendant’s ability to both comprehend and control their actions when the crime occurred (Stafford & Ben-Porath, 2002). Criminal responsibility evaluations have a rich history that dates back to 18 century England. This background informs current legal practices. At that time, a defendant was considered incompetent to stand trial if he was found not to know more than, “an infant, than a brute, or a wild beast” (Wrightsman et al., 1998). In 1843, Daniel M’Naghten, a man diagnosed with paranoia, murdered the man he believed to be the British prime minister. The determination in this case became the international standard for insanity in both the United States and Britain, known as the M’Naughten standard (Rogers & Shuman, 2005). In a 2003 survey, Gee concluded that 24 states use a form of the M’Naghten standard. The standard states: The jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it Mental Health Expert Testimony 3 must be clearly proved that, at the time of the committing of the act, the party accused as labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong (House of Lords, 1843, Ch 7). Over a century later, in 1954, the United States Federal Courts made another epochal ruling in Durham v. United States. This enacted a new standard that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect” (1971), pp. 874-875). Judge Bazelon’s standard, the product rule, sought to encourage expert witnesses to provide the court with the empirical evidence relevant to the case. Courts felt the M’Naghten standard shifted the final decision away from the judge and jury and transferred it to the expert witness (e.g. Holloway v. United States, 1945; Stafford & Ben-Porath, 2002). The impact of the Durham decision was significant because it generated a surge of mental health expert witnesses in the courtroom to fulfill the requirements of this new standard. Although many states adopted the Durham rule, the legal community found it to be inadequate and lacking in clarity; which served to increase the questions around criminal responsibility rather than providing answers. One illustration of the confusion occurr