Practical Application of Forensic and Clinical Psychology

1. Practical Application of Forensic and Clinical Psychology Defense Perspective

2. What is the Definition of Scary? Knowing enough to know that you don’t know enough. Sometimes we’re so “clueless” we don’t even know how to formulate the question let alone find the expert who can answer it. Child sexual abuse cases are different Child sexual abuse cases are hard Child sexual abuse cases have long lasting effects for our juvenile clients.

3. Create a Toolbox Network with experienced attorneys Buy someone lunch and pick their brain, take notes, collect Motions Read books and articles Do this when you are not under the gun with an upcoming trial Attend CLE’s Remember to collect contact information from experts who are speaking Read Investigation & Prosecution of Child Sexual Abuse published by the Texas District and County Attorneys Association This is like having the other team’s playbook! TCDLA sells it at its seminars and online

4. Some Internet Resources for Articles, Research, Motions www.falseallegation.org – National Child Abuse Defense and Resource Center www.nacdl.org – National Assoc. Criminal Defense Lawyers www.tcdla.com – Texas Criminal Defense Lawyers Association www.childabuselaw.info – Child abuse law www.juvenilelaw.org – State Bar of Texas Juvenile Law Section www.tjpc.state.tx.us – Texas Juvenile Probation Commission www.prevent-abuse-now.com – Pandora’s Box www.colleges.musc.edu/ncvc/ - National Crime Victims Research & Treatment Center www.nlada.org – National Legal Aid & Defender Association

5. Helpful Books Jeopardy in the Courtroom, A Scientific Analysis of Children’s Testimony (Ceci and Bruck) Handbook of the Psychology of Interviewing (Memon and Bull editors) Expert Witnesses in Child Abuse Cases (Ceci and Hembrooke) Investigative Interviews of Children, A Guide for Helping Professionals (Poole and Lamb)

6. Evaluate your case What do you need? Are you responding to State’s expert or is this your theory of the case Some issues may include: Competency of a very young complainant (understands oath, not whether pen is blue or red!) Is there an outcry witness who may be unreliable (see paper for discussion) Is suggestibility an issue and will the State call the “forensic interviewer”? Is your client a good candidate for probation?

7. Let’s Assume You Have No $$$ Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) Section 51.10(i) of the Family Code provides for the payment of court appointed counsel pursuant to Article 26.05 of the Code of Criminal Procedure 3. Article 26.05(d) Texas Code of Criminal Procedure: Counsel appointed to represent a defendant shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.

8. Prior Court Approval Art. 26.052(f) and (g) Counsel may file an ex parte confidential request for advance payment of expenses to investigate potential defenses. Request for expenses must state: Type of investigation to be conducted Specific facts that suggest the investigation will result in admissible evidence An itemized list of anticipated expenses for each investigation Court shall grant the request for payment in whole or in part if the request is reasonable. If the Court denies the Court shall state the reasons for the denial in writing attach the denial to the confidential request submit the request and denial as a sealed exhibit to the record.

9. Without Prior Court Approval Art. 26.052(h) Counsel may incur expenses without prior approval of the court On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.

10. Practice Tips Preparation of the Motion is Key Talk to experts before filing, get a feeling for costs so that you have a specific request for the Judge Do you want to find the best expert for your client (within reason) or do you want to have to go shopping for an expert with the Judge’s lowball amount? Attach an affidavit from the expert to your motion Affidavit should satisfy basic principles of Robinson, Daubert, Nenno, et al. Attach expert’s resume or C.V. Attach copies of studies and the relevant research You need to preserve the record for appeal (if there is no money, there is no expert to testify to make a bill of review)

11. Practice Tips • File the Motion as early as you can • Trying to find an expert at the last minute may prove to be impossible • You may need to consult with an expert to develop trial theory • Trial theory will dictate your investigation, subpoenas, etc. • File the Motion Ex Parte • Don’t have to reveal trial strategy to the State • Make sure that you put everything in the Motion to preserve issues on appeal • Expert’s CV • Copies of the relevant studies/research • Affidavit of expert

12. Practice Tips • Make sure to pay your expert with funds from your account • Never have the Respondent pay expert • Expert may become consulting expert if you don’t like report • Attorney is the client when forensic exam is being requested, not the Respondent • Expert becomes member of your team and is not subject to discovery rules

13. It is an Issue of Fundamental Fairness National Survey on Indigent Defense (NLADA) Almost all Americans surveyed believe the following should be guaranteed to a low-income person: Resources to obtain DNA testing and other lab services Resources to hire investigators to check on evidence and find witnesses Resources to hire expert witnesses …Why should the prosecution be allowed to spend all their money to prosecute and the defense be given a warm body and a legal pad. – Caucasian Man, San Jose I don’t think you can give someone counsel, or give someone a lawyer, and then not give them the tools required to perform their job. – Caucasian Woman, St. Louis

14. State’s Experts Motion for Discovery of Experts Article 39.14 of the Code of Criminal Procedure On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

15. Rule 705 TRE Disclosure of Facts or Data Underlying Expert Opinion (b) Voir dire. Prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury. (c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert’s opinion under Rule 702 or 703, the opinion is inadmissible.

16. Rule 705 TRE • Practice Tips • Let the Judge know you want these hearings • The Judge may decide to hold them piecemeal during trial or pretrial so be prepared • Remind the Judge of his/her gate keeping function, can’t unring the bell

17. Pre-testimony Reliability Checks Is the Expert qualified to testify about the subject? There is no Texas state license or certification required for mental health professionals to be expert witnesses. A witness is qualified by knowledge, skill, experience, training or education.

18. Pre-testimony Reliability Checks • Is the Expert objective? • In what role is the expert proffering her testimony? Did the expert use reliable methodology? • What professional standards outside the courtroom are applicable to ensure that the expert’s opinion will have a reliable basis in the knowledge and experience of the discipline? • Does the expert have a conflict of interest • therapist testifying in forensic capacity and is therefore more concerned with patient’s case outcome than with the accuracy of the testimony? • Check out the annual report of the Advocacy Center, usually state their “conviction rates” • Big money for Advocacy Centers being pro-prosecution

19. Daubert Hearing Daubert, Kelly, Robinson, Gammill, Nenno, Kumho Tire, et al. The objective of Daubert is to ensure the reliability and relevancy of expert testimony and to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

20. Daubert Hearing When the State offers their expert, ask expert of what? Make the State specify area of expertise. “A degree alone is not enough to qualify a purported expert to give an opinion on every conceivable medical question, legal question or psychological question.” Roise v. State, 7 S.W3d 225 (Tex. App.—Austin 1999). Don’t let an expert testify outside their area of expertise or on matters they have not been qualified to testify about.

21. Daubert Hearing Is the Expert adhering to professional guidelines and ethical codes? Ethical rules and professional guidelines which arise from professional standards and peer review may assist courts by serving as “red flags” to raise potential problems with the reliability of expert testimony Compliance with a profession’s ethical codes provides no assurance that the reasoning and methodology underlying the testimony is scientifically valid, failure to comply is powerful evidence that the reasoning and methodology may be invalid.

22. Daubert Hearing Is the expert using psychological testing properly? The most widely accepted psychological tests were developed to address clinical diagnostic questions and treatment issues in a professional’s office, not legal questions. What is the test’s quality Is the test commercially published? Is a comprehensive test manual available? Have adequate levels of validity been demonstrated? Are adequate levels of reliability demonstrated? Is the test valid for the purpose for which it will be used? Has the instrument been peer reviewed? What are the qualifications necessary to use this instrument?

23. Daubert Hearing What is the context in which the expert is interpreting the test? Testing is only one aspect of an evaluation Does the forensic evaluation include Testing Interviews with the examinee and appropriate collateral sources Review of past mental health or medical records An expert who offers an opinion about legal questions based on testing alone would be over-stepping her professional bounds.

24. Daubert Hearing Use of DSM-IV The Diagnostic and Statistical Manual – Fourth Edition is the primary diagnostic classification system for mental disorders in the U.S. The DSM-IV cautions that “there are significant risks that diagnostic information will be misused or misunderstood” in forensic settings. There is a lack of an empirical base for the specific criteria cut-offs for many of the diagnoses. While general definitions and specific characteristics of many diagnoses are supported by the psychological literature, the number of specific criteria needed to define many diagnoses was not arrived at empirically. There is a strong reliance on the professional’s clinical judgment on which to base the diagnosis

25. Daubert Hearing Does the expert invoke syndrome theories to support the opinion? A syndrome is a pattern of symptoms that tend toappear together in particular clinical presentations. The supporting empirical research is not rigorous Syndrome testimony has been proffered in court when proponents have tried to prove an event with symptoms in the alleged victim that could have arisen by other means, giving rise to “syndrome error.” Child Abuse Accommodation Syndrome

26. Daubert Hearing • Is the expert a clinician and wants to testify about some kind of therapy? • There is no empirical data that supports conclusions for • Play therapy • Music therapy • Interpretation of drawings, etc. • Projective testing

27. Daubert Hearing Three-step Analysis of Expert Testimony Did the evaluation methods comport with applicable professional standards for forensic evaluations Adequate interviewing, adequate contact with collateral sources, correct test choices? Review forensic guidelines and ethical codes to frame your inquiry (American Psychological Association, Ethical Principles of Psychologists and Code of Conduct; American Academy of Psychiatry and Law, Ethics Guidelines for the Practice of Forensic Psychiatry)

28. Daubert Hearing Are the expert’s connections between the data and the conclusions supported by adequate research What are the expert’s reasons for making those connections? Are those reasons based solely on clinical experience? Gauge the connection between the evaluation conclusions and the proffered expert opinion. Is there a gap? Remember: It is not so just because an expert says it is so.

29. My Soapbox • We are not truth seekers • We are not guardians • We are advocates • When everyone does their job (Judge, DA, Defense Attorney, Jury) we get justice!