FORENSIC PSYCHOLOGY CPY 417

1. FORENSIC PSYCHOLOGYCPY 417 • PSYCHOLOGICAL KNOWLEDGE APPLICABLE IN LEGAL ISSUES: • COURSE OVERVIEW – GENERAL INTRODUCTION • PRESENTING THE COURSE TO STUDENTS

2. FORENSIC PSYCHOLOGYCPY 417 Forensic psychology is the intersection between psychology and the justice system. It involves understanding fundamental legal principles, particularly with regard to expert witness testimony and the specific content area of concern (e.g., competence to stand trial, child custody and visitation, or workplace discrimination), as well as relevant jurisdictional considerations (e.g., in the United States, the definition of insanity in criminal trials differs from state to state) in order to be able to interact appropriately with judges, attorneys and other legal professionals.

3. INCAPACITY TO STAND A TRIAL • In criminal trials, the mental disorder defense or insanity defense is the claim that the defendant is not responsible for their actions during an episode of mental illness (psychiatric illness or mental handicap). Exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi.[1] There are different definitions of legal insanity, such as the M'Naghten Rules, the Durham Rule, the American Legal Institute definition, and various miscellaneous provisions (e.g., relating to lack of mensrea).[2] In the criminal laws of Australia and Canada, the terms defence of mental disorder or defence of mental illness are used.

4. DEFENSES • Idiot defense • Impossibility defense • Age of criminal responsibility in Australia • Defense of infancy • Innocent owner defense • Innovative defense • Mental Disorder (Insanity) Defense • Intoxication defense • Irresistible impulse

5. CRIMINAL DEFENSE • The M'Naghten rules (pronounced, and sometimes spelled, McNaughton) were a reaction to the acquittal in 1843 of Daniel M'Naghten on the charge of murdering Edward Drummond, whom M'Naghten had mistaken for BritishPrime MinisterRobert Peel.[1] • M'Naghten fired a pistol at the back of Peel's secretary, Edward Drummond, who died five days later. The House of Lords asked a panel of judges, presided over by Sir Nicolas Conyngham Tindal, Chief Justice of the Common Pleas, a series of hypothetical questions about the defence of insanity. The principles expounded by this panel have come to be known as the M'Naghten Rules, though they have gained any status only by usage in the common law and M'Naghten himself would have been found guilty if they had been applied at his trial.[2][3] The rules so formulated as M'Naghten's Case 1843 10 C & F 200[4] have been a standard test for criminal liability in relation to mentally disordered defendants in common law jurisdictions ever since, with some minor adjustments. When the tests set out by the Rules are satisfied, the accused may be adjudged "not guilty by reason of insanity" or "guilty but insane" and the sentence may be a mandatory or discretionary (but usually indeterminate) period of treatment in a secure hospital facility, or otherwise at the discretion of the court (depending on the country and the offence charged) instead of a punitive disposal. • DANIEL MCNAGHTEN RULE

6. THE MATRIX DEFENSE • The Matrixdefense is the term applied to several legal cases of a defense based on the Matrix films where reality is actually a computer generation—simulism—and that the real world is quite different from what reality is perceived to be. • In using this defense, the defendant claims that he committed a crime because he believed he was in the Matrix, and not in the real world. This is a version of the insanity defense and considered a descendant of the Taxi Driverdefense of John Hinckley, one of the first defenses based on blurring reality with the movies

7. MENTAL DISORDER DEFENSE • In the criminal laws of Australia and Canada, the defence of mental disorder (sometimes called the defence of mental illness) is a legal defence by excuse, by which a defendant may argue they should not be held criminally liable for breaking the law because they were mentally ill at the time of the alleged criminal actions.

8. MISTAKE • A mistake of fact may sometimes mean that, while a person has committed the physical element of an offence, because they were labouring under a mistake of fact, they never formed the required mens rea, and so will escape liability for offences that require mens rea. This is unlike a mistake of law, which is not usually a defense; law enforcement may or may not take for granted that individuals know what the law is.

9. Because the prosecution in a criminal case must prove the guilt of the accused beyond a reasonable doubt, the defendant must convince the jury that there is reasonable doubt about whether the witness actually saw what he or she claims to have seen, or recalls having seen. Although scientific studies have shown that mistaken identity is a common phenomenon, jurors give very strong credence to eyewitness testimony, particularly where the eyewitness is resolute in believing that their identification of the defendant was correct.

10. ABUSE DEFENSE • The abuse defense is a criminal lawdefense in which the defendant argues that a prior history of abuse justifies violent retaliation. While the term most often refers to instances of child abuse or sexual assault, it also refers more generally to any attempt by the defense to use a syndrome or societal condition to deflect responsibility away from the defendant. Sometimes the concept is referred to as the abuse excuse, in particular by the critics of the idea that guilty people may use past victimization to diminish the responsibility for their crimes.

11. ACTUAL INNOCENCE • Actual innocence is a state of affairs in which a defendant in a criminal case is innocent of the charges against them because he or she did not in fact commit the crime of which they have been accused.

12. ALIBI (DISAMBIGUATION) • An alibi is a form of defense used in criminal procedure wherein the accused attempts to prove that he or she was in some other place at the time the alleged offense was committed. The Criminal Law Deskbook of Criminal Procedure[1] states: "Alibi is different from all of the other defenses; it is based upon the premise that the defendant is truly innocent." In the Latin language alibī means "somewhere else."

13. AMBUSH DEFENSE • An ambush defence is one in which defence evidence - notably from expert witnesses - has not been adduced in advance to the prosecuting authorities, leading to their inability to rebut it. The term is used in United Kingdom jurisprudence. Since 1987, the possibility of the ambush defence has been much reduced by The Crown Court (Advance Notice of Expert Evidence) Rules 1987, made under section 81 of the Police and Criminal Evidence Act 1984, which in essence require the defence to provide the prosecution with copies of expert witness reports in sufficient time for the prosecution to consider the nature of and if necessary prepare rebuttal evidence opposing the report.

14. AUTOMATISM • Automatism is a rarely used criminal defence which denies that the accused was criminally responsible for his or her actions. There are several limitations to the defence of automatism in English law. Prior fault generally excludes automatism. Intoxication generally excludes automatism, even when involuntary. Any defence that rests on insanity comes under the M'Naghten Rules. Under English law internal causes of automatism are generally judged to be insane automatism and so result in the special verdict ('not guilty by reason of insanity') rather than simple acquittal.

15. AUTOMATISM LAW • Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability (unconsciousness) or excuse (Schopp). Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act. For example, Esther Griggs in 1858 threw her child out of a first floor window believing that the house was on fire, whilst having a night terror.[1] Brian Thomas strangled his wife in their campervan in a more recent case in Aberporth in an episode of rapid eye movement sleep behaviour disorder (a disorder related to sleepwalking), where he dreamed there was an intruder on top of his wife. The defence of automatism is denying that the person was acting in the sense that the criminal law demands. As such it is really a denial-of-proof – the defendant is asserting that the offence is not made out. The prosecution does not have to disprove the defence as is sometimes erroneously reported; the prosecution has to prove all the elements of the offence including the voluntary act requirement. Automatism is a defence even against strict liability crimes like dangerous driving, where no intent is necessary.

16. DIMINISHED RESPONSIBILITY • In criminal law, diminished responsibility (or diminished capacity) is a potential defense by excuse by which defendants argue that although they broke the law, they should not be held fully criminallyliable for doing so, as their mental functions were "diminished" or impaired. The defense's acceptance in American jurisdictions varies considerably. The majority of states have adopted it by statute or case decision, and a minority even recognise broader defenses such as 'irresistible impulse'.

17. DURESS • In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]". Duress is pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law and from necessity.

18. IDIOT DEFENSE • The idiot defense is a satirical term for a legalstrategy where a defendant claims innocence by virtue of having been ignorant of facts of which the defendant would normally be expected to be aware. Other terms used for this tactic include "dumb CEO defense," "dummy defense," "ostrich defense," and "Sergeant Schultzdefense." • The term was popularized as a result of a number of high-profile corporate accounting scandal defendants claiming that all wrongdoing was performed by others, without the defendant's knowledge or consent. Attorneys for these defendants claimed that their skill was in valuation and deal-making, and that they lacked the training to recognize fraudulent accounting practices they claimed that they would have needed. However, in many cases the defendants' subordinates testified that the defendants ordered them to falsify the accounts.

19. IMPOSSIBILITY DEFENSE • An Impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. In the United States, thirty-seven states have ruled out factual impossibility as a defense to the crime of attempt. This is not to be confused with a 'mistake of fact' defense, which may be a defense to a specific intent crime like larceny.

20. CRIMINAL AGE • The age of criminal responsibility in Australia is the age below which a child is deemed incapable of having committed a criminal offence. In legal terms, it is referred to as a defense of infancy. • WHICH IS THE CRIMINAL AGE IN KENYA? 14-18 JUVENILE / 18 AND ABOVE ADULT CRIMINAL JUSTICE

21. DEFENSE OF INFANCY • The defense of infancy is a form of defense known as an excuse so that defendants falling within the definition of an "infant" are excluded from criminalliability for their actions, if at the relevant time, they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offense committed.

22. INNOCENT OWNER DEFENSE • An innocent owner defense is a concept in United Stateslaw providing for an affirmative defense that applies when an owner claims that they are innocent of a crime and therefore their property should not be forfeited. It is defined in section 983(d) of title 18 of the United States Code (18 U.S.C.§ 983(d)) and is part of the Code that defines forfeiture laws and more specifically the general rules for civil forfeiture proceedings. It states that the "claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence".

23. MENTAL DISORDER / INSANITY DEFENSE • In criminal trials, the mental disorder defense or insanity defense is the claim that the defendant is not responsible for their actions during an episode of mental illness (psychiatric illness or mental handicap). Exemption of the insane from full criminal punishment dates back to at least the Code of Hammurabi.[1] There are different definitions of legal insanity, such as the M'Naghten Rules, the Durham Rule, the American Legal Institute definition, and various miscellaneous provisions (e.g., relating to lack of mensrea).[2] In the criminal laws of Australia and Canada, the terms defence of mental disorder or defence of mental illness are used.

24. INTOXICATION DEFENSE • In criminal law, the intoxication defense is a defense by which a defendant may claim diminished responsibility on the basis of substance intoxication. Although general intent crimes do not require an intent to break the law, just an unlawful act (actusreus) and an intent to act in such a fashion,[1] specific intent crimes, such as residential burglary, require a certain mental state (mensrea) to break the law,[1] and those under the influence of an intoxicating substance may be considered to have reduced liability for their actions. Even "voluntary intoxication" (the knowing and voluntary consumption of alcohol or other drugs) can be used as a defense to a "specific intent" crime, whereas only "involuntary intoxication" ("My drink was spiked!") can be used as a defense to a general intent crime. As for punishment, intoxication may be a mitigating factor that decreases a prison or jail sentence.

25. IRRESISTABLE IMPULSE • In criminal law, irresistible impulse is a defense by excuse, in this case some sort of insanity, in which the defendant argues that they should not be held criminallyliable for their actions that broke the law, because they could not control those actions. • In 1994, Lorena Bobbitt was found not guilty when her defense argued that an irresistible impulse led her to cut off her husband's penis.

26. JUSTIFIABLE HOMICIDE • The concept of justifiable homicide in criminal law stands on the dividing line between an excuse, a justification, and an exculpation. In certain circumstances, homicide is justified when it prevents greater harm to innocents. A homicide can only be justified if there is sufficient evidence to prove that it was reasonable to believe that the offending party posed an imminent threat to the life or well-being of another, in self-defense. To rule a justifiable homicide, one must objectively prove to a trier of fact, beyond all reasonable doubt, that the victim intended to commit violence. A homicide in this instance is blameless[1] and distinct from the less stringent criteria authorizing deadly force in stand your ground rulings.

27. FORENSIC PSYCHOLOGIST • An important aspect of forensic psychology is the ability to testify in court as an expert witness, reformulating psychological findings into the legal language of the courtroom, providing information to legal personnel in a way that can be understood. Further, in order to be a credible witness the forensic psychologist must understand the philosophy, rules, and standards of the judicial system. Primary is an understanding of the adversarial system. There are also rules about hearsay evidence and most importantly, the exclusionary rule. Lack of a firm grasp of these procedures will result in the forensic psychologist losing credibility in the courtroom. A forensic psychologist can be trained in clinical, social, organizational or any other branch of psychology.

28. An important aspect of forensic psychology is the ability to testify in court as an expert witness, reformulating psychological findings into the legal language of the courtroom, providing information to legal personnel in a way that can be understood.[1] Further, in order to be a credible witness the forensic psychologist must understand the philosophy, rules, and standards of the judicial system. Primary is an understanding of the adversarial system. There are also rules about hearsay evidence and most importantly, the exclusionary rule. Lack of a firm grasp of these procedures will result in the forensic psychologist losing credibility in the courtroom.[2] A forensic psychologist can be trained in clinical, social, organizational or any other branch of psychology.

29. MISTAKE OF LAW • Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is differentiated from mistake of fact. • There is a principle of law that "ignorance of the law is no excuse". In criminal cases, a mistake of law is not a recognized defense, though such a mistake may in very rare instances fall under the legal category of "exculpation". In criminal cases a mistake of fact is normally called simply, "mistake".

30. MISTAKEN IDENTITY • Mistaken identity is a defense in criminal law which claims the actual innocence of the criminal defendant, and attempts to undermine evidence of guilt by asserting that any eyewitness to the crime incorrectly thought that they saw the defendant, when in fact the person seen by the witness was someone else. The defendant may question both the memory of the witness (suggesting, for example, that the identification is the result of a false memory), and the perception of the witness (suggesting, for example, that the witness had poor eyesight, or that the crime occurred in a poorly lit place).

31. LAWYER • A lawyer is a person who practices law, as a barrister, judge, attorney, counsel (counselor at law) or solicitor or a legal academic. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services.

33. DISTINCTION BETWEEN A LAWYER & AN EXPERT WITNESS • LAWYER = TRAINED IN LAW AND LEGAL ISSUES • CAN DEFEND A CLIENT IN COURT / CAN MAKE REFERENCE TO LEGAL PROVISIONS IN DEFENCE/ LITIGATES/ CHALLENGES THE ADVERSARY/ PLEADS/ SWEARS IN AFFIDAVIT/ HAS LEGAL PROFESSION AND IS AUTHORISED TO DEFEND A CLIENT/CAN GIVE LEGAL ADVICE/IS PAID BY THE CLIENT

34. FORENSIC PSYCHOLOGIST= IS CALLED IN COURT TO GIVE A SCIENTIFIC ACCOUNT OF THE CRIME/ USES LABORATORY, INTERVIEWS, COUNSELLING/ EMPIRICAL TESTS. SCIENTIFIC METHODS AS PROOF OF HIS JUDGMENTS/ CANNOT DEFEND A CLIENT IN COURT/ CANNOT GIVE HIS OPINION/ CAN USE HEARSAY AS EVIDENCE IN HIS TESTIMONY/ IS REFERRED TO AS EXPERT WITNESS/ CAN MAKE REPORT FOR ANY OF THE PARTIES OR FOR THE COURT/ STICKS TO PROFESSION AND SCIENTIFIC PROOF/ CAN BE CROSS EXAMINED IN COURT/MUST BE QUALIFIED IN HIS OR HER FIELD/ IS PAID BY THE CLIENT OR BY COURT FOR THE WORK DONE/ASSESSES & EVALUATES.

35. FORENSIC PSYCHIATRIST • IS A MEDICAL EXPERT IN MENTAL HEALTH • A FORENSIC PSYCHOLOGIST AND PSYCHIATRIST ARE DIFFERENT PROFESSIONS • PSYCHOLOGIST DEALS WITH PSYCHOLOGICAL PROBLEMS AND ISSUES • PSYCHIATRIST DEALS WITH DISEASES/ MEDICINE/ OR MENTAL HEALTH IN GENERAL

36. EXPERT WITNESS • Unlike fact witnesses, who are limited to testifying about what they know or have observed, expert witnesses have the ability to express opinion because, as their name suggests, they are presumed to be "experts" in a certain topic. They possess specialized knowledge about the topic. Expert witnesses are called upon to testify on matters of mental health (clinical expertise) or other areas of expertise such as social, experimental, cognitive, or developmental.[8] The role of being an expert witness is not primary and it is usually performed in conjunction with another role such as that of researcher, academic, evaluator, or clinical psychologist. Clinical forensic psychologists evaluate a defendant and are then called upon as expert witnesses to testify on the mental state of the defendant.[7] • In the past, expert witnesses primarily served the court rather than the litigants

37. TREATMENT PROVIDER • Treatment providers are forensic psychologists who administer psychological intervention or treatment to individuals in both criminal and civil cases who require or request these services. In criminal proceedings, treatment providers may be asked to provide psychological interventions to individuals who require treatment for the restoration of competency, after having been determined by the courts as incompetent to stand trial.[7] They may be asked to provide treatment for the mental illness of those deemed insane at the crime.[7] They may also be called to administer treatment to minimize the likelihood of future acts of violence for individuals who are at a high risk of committing a violent offense.[7] As for civil proceedings, treatment providers may have to treat families going through divorce and/or custody cases. They may also provide treatment to individuals who have suffered psychological injuries due to some kind of trauma.[7] Treatment providers and evaluators work in the same types of settings: forensic and state psychiatric hospitals, mental health centers, and private practice. Not surprisingly, their work may greatly overlap. And although not ethically encouraged, the same forensic psychologist may take on both the role of treatment provider and evaluator for the same client

38. FORENSIC PSYCHOLOGIST PRACTICE • Forensic psychology practice3.1 Malingering • 3.2 Competency evaluations • 3.3 Sanity evaluations • 3.4 Other evaluations • 3.5 Ethical implications

39. ASSESSMENTS & EVALUATIONS • MALINGERING: An important and pressing question in any type of forensic assessment is the issue of malingering and deception. In some criminal cases, the court views malingering or feigning illness as obstruction of justice and sentences the defendant accordingly

40. COMPETENCY EVALUATIONS: If there is a question of the accused's competency to stand trial, a forensic psychologist is appointed by the court to examine and assess the individual. The individual may be in custody or may have been released on bail. Based on the forensic assessment, a recommendation is made to the court whether or not the defendant is competent to proceed to trial. If the defendant is considered incompetent to proceed, the report or testimony will include recommendations for the interim period during which an attempt at restoring the individual's competency to understand the court and legal proceedings, as well as participate appropriately in their defense will be made. Often, this is an issue of committed, on the advice of a forensic psychologist, to a psychiatric treatment facility until such time as the individual is deemed competent

41. SANITY EVALUATION • The forensic psychologist may also be appointed by the court to evaluate the defendant's state of mind at the time of the offense. These are defendants who the judge, prosecutor or public defender believe, through personal interaction with the defendant or through reading the police report, may have been significantly impaired at the time of the offense.

42. OTHER EVALUATION • Forensic psychologists are frequently asked to make an assessment of an individual's dangerousness or risk of re-offending. They may provide information and recommendations necessary for sentencing purposes, grants of probation, and the formulation of conditions of parole, which often involves an assessment of the offender's ability to be rehabilitated. They are also asked questions of witness credibility and malingering.Occasionally, they may also provide criminal profiles to law enforcement. • Due to the Supreme Court decision upholding involuntary commitment laws for predatory sex offenders in Kansas v. Hendricks, it is likely that forensic psychologists will become involved in making recommendations in individual cases of end-of-sentence civil commitment decisions.

43. IDENTIFYING A SUSPECT • Crime is a major problem in many areas, particularly densely populated areas. As much as we may wish for peaceful, crime-free lives, this is most likely not going to happen anytime soon. Punishing criminals or preventing them from committing crimes in the first place is typically necessary for protecting ordinary citizens from crime. • Forensic psychology often plays a role in punishing and preventing crimes. The word forensic is defined as "the scientific method for investigation of crime". Forensic psychology is often described as the merger of law and psychology. • This field of psychology is often focused on the criminals themselves. Professionals in this field are often given the ominous responsibilities of trying to figure out why certain types of people commit crimes; what type of person committed a crime; and how to prevent people from committing crimes.

44. PSYCHOLOGIST IN COURTROOMJenkins v. United States • In a trial for housebreaking, assault and intent to rape, a defendant presented the testimony of three clinical psychologists in support of an insanity defense. All three psychologists testified, based on their personal contact with the defendant, review of his case history and standard psychological tests, that on the date the alleged crimes were committed, defendant had been suffering from schizophrenia. One of the three testified that he could give no opinion concerning the relationship between the illness and the crimes but the other two gave opinions that the two were related and that the crimes were the product of the illness. At the conclusion of the trial, the judge instructed the jury to disregard the opinions of the psychologists in that psychologists were not qualified to give expert testimony on the issue of mental disease. On appeal, the D.C. Circuit reversed and remanded, and held that psychologists were qualified as expert witnesses on the question of mental disease. (IN 1962)

45. APA’S POSITION • APA submitted an amicus brief arguing that: (1) psychology is an established science; (2) the practice of psychology is a learned profession; (3) a clinical psychologist is competent to express professional opinions concerning the existence or non-existence of mental disease or defect and their causal relationship to overt behavior; and (4) experience is the essential legal ingredient of competence to give an expert opinion.

46. THERE ARE SEVERAL BRANCHES OF FORENSIC PSYCHOLOGY • You will complete the twelve modules listed below. This course shall cover the first five modules which cover the theoretical basis of forensic psychology across a range of settings, through all stages of the criminal justice process, i.e. from investigation to punishment and through care, and as applied to a broad range of crimes and how the law handles psychology. • Other modules are covered by other units and lecturers with expertise.

47. 1. PSYCHOLOGY & CRIMINAL BEHAVIOUR • Psychology and Criminal Behaviour • What is criminal behaviour? • measurement of crime, • who commits crime? • theories of crime, • alternative theories of crime.

48. 2. PSYCHOLOGY IN THE CRIMINAL JUSTICE • Psychology in the Criminal Justice System • Eyewitness testimony, • children and vulnerable witnesses/suspects, • legal decision making, • confessions and identification, • recovered memory.

49. 3. TREATMENT OF OFFENDERS & VICTIMS • Treatment of Offenders and Victims • Theory of criminal and civil justice responses to crime, • what works when rehabilitating offenders? • prison, secure units and therapeutic communities, • restorative justice, • responses to juvenile and female offenders, • victim issues.

50. 4. APPLIED POLICE PSYCHOLOGY • Applied Police Psychology • Psychology and policing • crime analysis, • offender profiling, • geographic profiling • psychological autopsy • hostage and crisis negotiation.