Attorneys as Consumers of Psychological and Psychiatric Evaluations

1. Attorneys as Consumers of Psychological and Psychiatric Evaluations Randy K. Otto, PhD, ABPP University of South Florida rotto@usf.edu 1-813-974-9296

2. Agenda • References • Attributes of good examiners • How to get a good examiner • How to get a good examination • Getting beyond some things • Characteristics of good evaluations • Characteristics of good reports

3. References

4. References • Grisso & Schwartz (Eds.)(2000). Youth on trial: A developmental perspective on juvenile justice. Chicago: Univ of Chicago Press. • Grisso (2013). Forensic evaluations of juveniles (2nd edition) • Grisso (2005). Clinical evaluation for juveniles’ competence to stand trial: A guide for legal professionals. Sarasota, FL: Professional Resource Press. • Kruh & Grisso (2005). Evaluation of juveniles’ competence to stand trial. New York: Oxford University Press.

5. References • Budd et al., (2010). Evaluation of parenting capacity in child protection. New York: Oxford University Press. • Oberlander (2002). Parenting evaluations for the courts: Care and protection matters. New York: Kluwer.

6. Attributes of Good Examiners • Knowledge • Child development and psychopathology • Parenting • Relevant law • Juvenile justice • Dependency • Effective interventions • With delinquent kids • With abusive/neglectful parents and abused/neglected kids

7. Attributes of Good Examiners • Skills • Interviewing and assessing children, adolescents, and parents • Report writing • (Testifying)

8. How to Get a Good Examiner • Ask your colleagues • Interview the expert • Understanding of the law • Evaluation approach and information sources • References • Experience in court • Ask for and review a report summarizing an evaluation the expert completed

9. What Happens When You do Not Practice Due Diligence • Tampa man charged with faking credentials, testifying for the accused in child sex cases • ByDan Sullivan and Tony Marrero, Times staff writers • Thursday, September 22, 2016 1:38pm

10. How to Get a Good Examination • Get a good examiner (see above) • Be as specific as possible with your referral question(s) • Provide collateral information you consider important

11. How to Get a Good Examination • Ask the examiner if there is additional collateral information s/he needs • Sit in on the examination, send a representative, or have it recorded • There may be some pushback about psychological testing, but that should be it given FL law generally

12. Demystifying Diagnosis, the DSM 5, and Assessment • Diagnosis is a shorthand for describing a person’s emotional, behavioral, and cognitive functioning • Diagnosis should have implications for treatment and prognosis • There is no clear relationship between diagnosis and any legal issue, disposition, or outcome • A diagnosis, in and of itself, may tell you little about a juvenile’s functioning

13. Jack Sleeps all the time Significant weight loss Depressed mood, feels blue Impaired concentration Psychomotor agitation Gene Insomnia Significant weight gain No pleasure from activities Thoughts of death and dying Psychomotor retardation What do Identical Twins Jack and Gene Have in Common?

14. Demystifying Psychological, Psychiatric, & Neurological Testing • Psychological tests typically measure general constructs that may be related to the issue at hand, e.g., • Intelligence • Level of depression • Level of anxiety • Logic and form of thinking • Interpersonal sensitivity • Ability to communicate with others • Academic achievement

15. Demystifying Psychological and Psychiatric, & Neurological Testing • Most psychiatric and neurological tests assess gross central nervous system functioning that are often not relevant to the issue at hand with the child, adolescent, or parent, e.g., • Metabolism • Physical insult or injury • Brain structure • Brain metabolism

16. Characteristics of Good Evaluations

17. Good Evaluations • Identify the psycholegal matter in dispute, e.g., • Competence • Treatment needs • Transfer/waiver • Resentencing • Amenability to treatment • Treatment needs • Are focused on the psycholegal matter in dispute and address nothing else

18. Good Evaluations • Take into account developmental matters • Include multiple sources of information, and rely on more than the report of the child, adolescent, or parent • Are not test-focused, and only involve tests that assess relevant matters, such as relevant capacities or emotional, behavioral, or cognitive impairments

19. Characteristics of Good Reports

20. Good Reports • Describe when and where the evaluation took place • Identify how long the examiner spent with the child, adolescent, or parent • Identify and discuss sources of information that were accessed and considered, as well as sources of information that were sought but not available (and why)

21. Good Reports • Identify the source of information for any important data that are offered as facts • Richly describe the child’s, adolescent’s or parent’s relevant history and relevant aspects of his/her physical, emotional, behavioral, and cognitive functioning • Richly describe how the above is relevant to the psycholegal issue in dispute

22. Good Reports • Exclude psychological and psychiatric jargon, or explain it, e.g., • No providing medication names without purposes • No providing diagnoses without listing symptoms • No listing tests without describing functions

23. Good Reports • Include data that are both consistent with and contrary to opinions offered, and make clear why the opinions offered are the correct ones nonetheless • Make reasoning transparent and obvious, so that by the time you get to the end of the report the conclusions are obvious

24. Competence to Proceed Evaluations • Was there an inquiry into both decisional and adjudicative competence? • Was knowledge used as a proxy for appreciation? • Are statutory requirements met? • Sources of information, factual basis for opinions, no treatment recs for misdemeanants, opinions about restorability and commitment criteria with least restrictive criteria

25. Juvenile Justice Dispositional Evaluations • Is the examiner aware of what is available in the community? • Is the examiner aware of what works? • Is counseling considered an elixir? • Are any intervention recommendations tailored to the youth’s needs?

26. Dependency Evaluations • What standards is the examiner adopting? • Is the examiner aware of what services are available in the community? • Is the examiner aware of what works? • Is counseling considered an elixir? • Are any intervention recommendations tailored to the child’s or parent’s needs?

27. Report Checklist • Time spent with the examinee is reported • Psycholegal question is referenced • Sources of information are adequte • Factual basis for all important opinions • Jargon is either absent or explained • Reasoning is explicit and transparent • Data that are contrary to opinions are included

28. Should Your Expert Write a Report • In Florida, court-appointed experts must typically write reports but attorney-retained experts do not have to do so • This stands in stark contrast to the rules of evidence in federal courts and some states in which, with rare exceptions, experts do not get to enter the courtroom without having prepared a report

29. Should Your Expert Write a Report • Pros • Forces the expert to get organized and get straight about the case materials/facts • Forces the expert to wrestle with and make sense of conflicting data • Facilitates better testimony • Might preclude need for testimony & decrease costs you endure of they expert is called to court • May impress the judge or jury

30. Should Your Expert Write a Report • Cons • Forces the expert to commit him/herself to facts, inferences, and opinions, and decreases wiggle room accordingly • Makes life easier life easier for opposing counsel • Costs more money-at least up front

31. Questions