Assessing the Accused National Child Abuse Defense and Resource Center 26 August 2010 Las Vegas, Nevada

1. Assessing the AccusedNational Child Abuse Defense and Resource Center26 August 2010Las Vegas, Nevada Ann Duncan-Hively, Ph.D., J.D. Wells Hively, Ph.D. www.duncanhively.com

2. What?, Why? Who Should Do It?, When? Systematic, objective description of psychological functioning of the accused To assist the attorney in decision making prior to conversation with prosecutor Must use an expert who meets the Daubert standards As early in the case as possible

3. Who Are the Accused? According to Defense attorney: People According to the Prosecutor: Profiles

4. Defense’s Assessment: An individual portrait in a distinctive family and community setting • In search of alternate explanations, motivations and misunderstandings Prosecution’s Assessment: A description of how the individual fits a typical offender profile • In search of a convincing label and “method of operation”

5. Why prosecutors like profiles • “Botanizing” the offenders makes prosecution of the accused convenient and righteous • Profiles are compelling for jury and judge What the defense can do • Use your own psychological assessment of defendant to blow holes in prosecutor’s assumptions and/or • Use it to provide prosecutor with accurate information that can contribute to plea bargain or mitigation at sentencing

6. Child Molesters From the Prosecutor’s Viewpoint Ken Lanning, FBI SSA (Ret.)“Child Molesters: A Behavioral Analysis,” 2010download from http://www.missingkids.com • One man’s logical analysis, based on FBI Behavioral Analysis Unit experience • Comprehensive and complicated • Reference point for most prosecutors • Prosecutors use it as: • Guide to investigation • Guide to arguing the case to the jury

7. Situational-ImpulsiveRarely plans or collects souvenirs

8. Situational- Impulsive • Regressed: low self esteem, poor coping ability, stressed, • Morally Indiscriminate: Impulsive, no conscience • Inadequate: Handicapped, not understand the norms, “exploring sexual interests.”

9. Preferential-Compulsive Always collects souvenirs

10. Preferential – Compulsive • Seductive: groom their targeted victims • Inadequate: hang around playground • Sadistic: aroused by pain • Diverse: “try-sexual”

11. Sociopaths A special case

12. Child Pornography Should Point and Click be an Offense?

13. Increasing numbers of cases • Recent upsurge in charges because of improved efficiency of FBI “cookies” • Use of “shills” to entice and entrap the regressed and/or impulsive candidate • Adolescents and impaired persons are naïve and do not recognize collecting as an offense

14. Federal Child Pornography Laws 18 U.S.C. 2256 Child Pornography: visual depiction of a person under 18 engaged in sexually explicit conduct (Includes “sexually suggestive” pictures) 18 U.S.C. 2251,2252,2252A Illegal to: Possess Receive Distribute Produce

15. Child Pornography Offenders From the Prosecutor’s Viewpoint A.E. Hernandez, Psy. D. “Psychological and Behavioral Characteristics of Child Pornography Offenders in Treatment,” Download from www.iprc.unc.edu/G8/Hernandez_position_paper_Global_Symposium_.pdf Hernandez is the lead author of the “Butner Study,” relating child pornography use to actual contact offenses, published in 2001. This article describes the original study and its follow-up through 2009.

16. The Butner Study • 155 men convicted for “possession, receipt or distribution” of child pornography interviewed in a voluntary, prison-based, treatment program • 26% had documented history of “hands-on sexual act” • 85% admitted “at least one hands-on sexual offense” by the end of treatment Used as justification for harsh sentencing

17. It is easy to criticize the Butner study • Effects of “treatment” on findings • Prisoners learned the magic words and provided the investigators with what they wanted • Over-generalization of findings • Prison population a skewed “sample” And remember: • Individual differences in child pornography viewers are huge • “Predisposition” is an unproven theory

18. You Should Almost Always Evaluate Accused Adolescents

19. Components of the Psychological Evaluation • History • Family, forensic , sexual, medical (especially head trauma) • Cognitive Ability • How the client thinks, flaws in language competency • Present Emotional State • Anxiety, depression, thoughts of suicide, etc • Personality Structure • How the client typically deals with the world • Substance Abuse • It’s impact, if any, on all of the above, age of onset, types used • Current Sexual “Interests” • Risk • Of future violence • Of future sexual offending

20. Products of the Psychological Evaluation • A narrative portrait of the client • Describing both historical and current functioning • Supported by links to multiple sources of objective information • A DSM-IV “diagnosis” • Couched in generally accepted psychological/psychiatric terms Provided in a report for the defense attorney ,under work product privilege, to assist in preparing the case. The report may also be presented to the court if the attorney chooses to do so.

21. Format for the DSM-IV Diagnosis • Axis I: Major mental illness • Axis II: Personality Disorders • Axis III: Physical contributors • Axis IV: Environmental Factors • Axis V: Global Assessment of Functioning (range from 10 to 90, most commonly at 65 for mental health population) • (Diagnostic and Statistical Manual of Mental Disorders 4th Edition) www.dsmivtr.org

22. Uses of the Psychological Evaluation • To help understand/manage your client • To help counter the prosecutor’s assumptions about your client • To help cross examine the prosecution’s experts • To help unearth useful details for the defense strategy • To help negotiate/mitigate the sentence

23. Basics of Psychological Measurement Think Daubert Standard (Fed. R. Evd. 702) scientifically reliable and relevant

24. Replicable Procedures (Following the Script) Questionnaires Structured Interviews Protocols “Objective Tests”

25. Why Follow a Script? • Consistently Evocative • Some questions work better than others • Comprehensive • Covers all the bases • Equipped with double checks • For exaggeration, minimizing, lying, malingering

26. Replicable Results Don’t fluctuate wildly and mysteriously Psychologists say “reliable” Correlate with important variables Psychologists say “valid” Attorneys say “meet the Daubert Standard”

27. Histories

28. Respected Structured Interviews and Questionnaires • Early Developmental Family History Various schools, child development centers and counseling services all use these. They are very similar. • Forensic History Greenberg Forensic History Questionnaire Developed by S.A. Greenberg, U. of Washington (now deceased) unpublished, but available from www.duncanhively.com • Sexual History Clark Sexual History Questionnaire, Revised (SHQ-R) www.mhs.com

29. Respected, Quick and Painless Wechsler Abbreviated Scale of Intelligence (WASI) Kaufman Brief Intelligence Test, 2nd Ed. (K-BIT) Both available from www.pearsonassessments.com

30. The Respected Personality Tests Minnesota Multiphasic Personality Inventory, 2nd Edition (MMPI-2) www.pearsonassessments.com Caldwell Scoring www.caldwellreport.com Millon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III) www.pearsonassessments.com

31. The “Famous” Rorschach Test Rorschach Comprehensive System Rorschach Interpretive Assistance Program (RIAP 5) www.rorschachworkshops.com www.rorschachtraining.com www.r-pas.org

32. Psychopathy/Sociopathy The Hare Psychopathy Checklist www.hare.org

33. Substance Abuse MAST/DAST http://counsellingresource.com SASSI-3/SASSI-A2 www.sassi.com

34. Sexual Interest: The Penile Plethysmograph See Texas Department of State Health Services, Council on Sex Offender Treatment, “Use of the Penile Plethysmograph in Assessment and Treatment of Sex Offenders” www.dshs.state.tx.us/csot

35. Sexual Interest: The Abel Assessment • Abel Assessment for Sexual Interest-2 http://abelscreening.com • For a simple description, see: Wells Hively, Ph.D.“Fundamentals of the Abel Assessment” www.duncanhively.com • For a recent technical review, see: Evan S. Nelson, Ph.D. “Intro to the Abel Assessment of Sexual Interest” presentation to Virginia Sex Offender’s Treatment Association , March 2010 www.psylaw.com/uploads/ABEL_Assessment_for_VSOTA.pdf • Daubert hearings have been mixed, for example: Appeals Court of Louisiana, U.S. v. Robinson 94 F. Supp. 2nd 751 (W.D. La., 2000) found that the AASI did meet Daubert Standards Appeals Court of Massachusetts, Ready v. Commonwealth (824 N.E. 2nd 474) 2005 found that AASI did not meet Daubert Standards

36. Risk of Violence Macarthur Study (2001) www.macarthur.virginia.edu/risk.html Level of Service Inventory (LSI-R) www.assessments.com Spousal Assault Risk Assessment Guide (SARA) www.mhs.com Danger Assessment (prediction of murder) www.dangerassessment.org

37. Risk of Sexual Reoffending Static 99, Stable 2007, Acute 2007 http://soraf.cyzap.net http://www.publicsafety.gc.ca (Search on Dynamic Supervision Project) J-SOAP-II http://www.csom.org/pubs/JSOAP.pdf

38. Lie Detection American Psychological Association, “The Truth About Polygraphs” www.apa/org/research/action/polygraph.aspx Damphousse et al., “Assessing the Validity of Voice Stress Analysis” www.ncjrs.gov/pdffiles1/nij/grants.219031.pdf Neither technique is objective, reliable, or valid

39. TRY ASSESSING YOUR CLIENT YOU MIGHT FIND IT HELPFUL