Forensic Psychology 344H

1. Forensic Psychology 344H Dr. Peter Collins Dr. Alberto Choy

2. 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.

3. 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.

4. Instructors • Dr. Collins – 416-979-6847 peter.collins@utoronto.ca • Dr. Choy – 416-979-6835 a.choy@utoronto.ca

5. Teaching Assistants • Andrea Gonzalez andreag@psych.utoronto.ca • Anna Volkova anna@psych.utoronto.ca

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

7. Exams • Mid-Term Exam - October 20, 2003 - 30% • Final Exam - December 2003 - 40% • Paper - Due November 24, 2003 - 30% - no extensions.

8. Readings Text: Wrightsman, Lawrence Forensic Psychology Wadsworth Thompson Learning 2001 Readings: to be provided.

9. 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.

10. 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.

11. 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.

12. 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.

13. Police Arrest Hospital Lower Court Judge Diversion High Court Jail Judge/Jury Awaiting Trial Short Sentences Probation Legal Pathways

14. High Court Judge/Jury Innocent Assessment Unfit NCR Prison Hospital Hospital Hospital Parole Legal Pathways

15. 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.

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

17. 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.

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

19. 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.

20. 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.”

21. 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.

22. 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.

23. 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.

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

25. Expert Testimony - U.S. • Frye Test - Frye v. United States (1923) • Federal Rules of Evidence (FRE) 1975 • Daubert v.Merrell Dow Pharmaceuticals (1993)

26. 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.

27. 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.

28. Daubert • appellate courts have applied Daubert criteria to the admissibility of testimony on: - battered woman’s syndrome. - rape trauma syndrome. - compulsive gambling syndrome.

29. 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.

30. 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).

31. 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.

32. 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.

33. Daubert • reliability of eyewitness testimony. • false confessions. • impact of Munchausen’s disease. • suggestibility of children.

34. 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.

35. 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.

36. 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.”

37. 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.

38. Prior to M’Naughten • Wild Beast standard. • Delusion test. • Right-wrong test. • Delusional-volitional.

39. 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.

40. 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.”

41. 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)

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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

49. S. 16 Mental Disorder • the disorder better be internal rather than externally caused. • the disorder in not transitory.

50. 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.