Assessing the AccusedNational Child Abuse Defense and Resource

Center26 August 2010

Las Vegas, Nevada

Ann Duncan-Hively, Ph.D., J.D.Wells Hively, Ph.D.

www.duncanhively.com

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

Who Are the Accused?

According to Defense attorney: PeopleAccording to the Prosecutor: Profiles

• 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”

• 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

Child Molesters From the Prosecutor’s Viewpoint

Ken Lanning, FBI SSA (Ret.)“Child Molesters: A Behavioral Analysis,” 2010

download fromhttp://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

Situational-ImpulsiveRarely plans or collects

souvenirs

Situational- Impulsive

• Regressed: low self esteem, poor coping ability, stressed,

• Morally Indiscriminate: Impulsive, no conscience

• Inadequate: Handicapped, not understand the norms, “exploring sexual interests.”

Preferential-CompulsiveAlways collects souvenirs

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

SociopathsA special case

Child PornographyShould Point and Click be an Offense?

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

Federal Child Pornography Laws

18 U.S.C. 2256Child Pornography: visual depiction of a person under

18 engaged in sexually explicit conduct (Includes “sexually suggestive” pictures)

18 U.S.C. 2251,2252,2252AIllegal to:

PossessReceiveDistributeProduce

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.

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

• 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

You Should Almost Always Evaluate Accused

Adolescents

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

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.

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

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

Basics of Psychological Measurement

Think Daubert Standard(Fed. R. Evd. 702)

scientifically reliable and relevant

Replicable Procedures (Following the Script)

Questionnaires Structured InterviewsProtocols “Objective Tests”

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

Replicable ResultsDon’t fluctuate wildly and mysteriously Psychologists say “reliable”Correlate with important variables

Psychologists say “valid” Attorneys say “meet the Daubert Standard”

Histories

Respected Structured Interviews and Questionnaires

• Early Developmental Family History Various schools, child development centers and counseling services alluse these. They are very similar.

• Forensic HistoryGreenberg Forensic History Questionnaire

Developed by S.A. Greenberg, U. of Washington (now deceased) unpublished, but available from www.duncanhively.com

• Sexual HistoryClark Sexual History Questionnaire, Revised (SHQ-R) www.mhs.com

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

The Respected Personality TestsMinnesota Multiphasic Personality Inventory, 2nd Edition (MMPI-2) www.pearsonassessments.com

Caldwell Scoring www.caldwellreport.comMillon Clinical Multiaxial Inventory, 3rd Edition (MCMI-III)www.pearsonassessments.com

The “Famous” Rorschach TestRorschach Comprehensive SystemRorschach Interpretive Assistance Program (RIAP 5)www.rorschachworkshops.comwww.rorschachtraining.comwww.r-pas.org

Psychopathy/Sociopathy

The Hare Psychopathy Checklist www.hare.org

Substance Abuse

MAST/DAST http://counsellingresource.comSASSI-3/SASSI-A2 www.sassi.com

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

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

Risk of ViolenceMacarthur Study (2001)www.macarthur.virginia.edu/risk.htmlLevel of Service Inventory (LSI-R)www.assessments.comSpousal Assault Risk Assessment Guide (SARA)www.mhs.comDanger Assessment (prediction of murder)www.dangerassessment.org

Risk of Sexual ReoffendingStatic 99, Stable 2007, Acute 2007

http://soraf.cyzap.nethttp://www.publicsafety.gc.ca(Search on Dynamic Supervision Project)

J-SOAP-II http://www.csom.org/pubs/JSOAP.pdf

Lie DetectionAmerican Psychological Association, “The Truth About Polygraphs” www.apa/org/research/action/polygraph.aspxDamphousse et al., “Assessing the Validity of Voice Stress Analysis”www.ncjrs.gov/pdffiles1/nij/grants.219031.pdf

Neither technique is objective, reliable, or valid

TRY ASSESSING YOUR CLIENTYOU MIGHT FIND IT HELPFUL