CHAPTER 10 of A Judge's Deskbook on the Basic Philosopies and Methods of Science, by Shirley A. Dobbin, Ph.D, and Sophia I. Gatowski, Ph.D Psychological and Psychiatric Evidence: A Brief Overview
The judges who participated in the national survey clearly had experience with a variety of psychological and psychiatric evidence testimony in their courtrooms. However, these judges also expressed considerable difficulty in dealing with such testimony. Typical comments provided when discussing psychological and psychiatric evidence revealed concerns about its subjective nature, its lack of scientific rigor, as well as concerns over the wide variety and differing backgrounds of experts who testify about psychological and psychiatric matters. Because most of the judges surveyed had at least some experience with psychological or psychiatric evidence in the courtrooms, and found this type of evidence to be problematic, a chapter on psychological and psychiatric evidence is included in this Deskbook. The purpose of this chapter is not only to highlight some of the issues with respect to psychological and psychiatric evidence, but also to illustrate the concepts discussed in previous chapters. Psychological and psychiatric evidence has become a significant part of many trials in the past few decades, and since courts continue to be faced with legal issues whose resolution may be informed by social and behavioral science evidence, it will probably continue t o be so. Social and behavioral science evidence can take several forms, including the presentation of the results of empirical research or clinical assessments conducted for purposes of trial. For example, social and behavioral science evidence has been used by the court to: discover if an individual understood the information conveyed in the informed consent process; determine community beliefs and standards for obscenity cases; focus on the operation of the trial process (e.g., jury's understanding of instructions); and provide information about how parents respond to their child in the home for post-custody placement. The value of social and behavioral science evidence is not limited to understanding mentally ill persons, dangerous persons, or other deviant populations of concern to behavioral, clinical science. [Social and behavioral science] evidence can be used to understand the behavior of all persons.	Learning Objectives for Chapter 10 Upon completion of this chapter, the reader should be able to:   Discuss the differences between clinical and empirical methods in psychological and psychiatric research; Identify and discuss some of the strengths, weaknesses and criticisms of the Diagnostic and Statistical Manual of Mental Disorders (DSM); Discuss the differences between objective and projective personality tests and why this distinction is important; Identify elements of expertise, including differences in degrees, licensure, and professional affiliations; Identify different theoretical paradigms within psychology and discuss why recognition of these paradigms might be important; and Critically evaluate different types of psychological and psychiatric testimony, including prediction of future behavior and psychological syndromes.
The Social Science Challenge Some critics argue that the fields of psychiatry and psychology are merely pseudo or soft sciences (i.e., not derived from a strict scientific methodology involving the development of hypotheses that can be tested through objective, quantifiable observation). These critics also point to the diversity of psychiatric or psychological theories on the same topics and cite conflicting studies and instances of mis-diagnosis. However, even hard sciences, such as physics, incorporate a body of theories that are debatable or unverified. And even given the underlying uncertainties and discrepancies within the psychiatric communities, psychiatrists and psychologists, through their education and experiences, acquire special information and skills that are beyond that of the lay community to better understand and interpret human behavior.(2)	A national snapshot of judges' experience with psychological and psychiatric evidence ... The judges surveyed had a variety of experiences with psychological and psychiatric evidence: 47% of the judges surveyed had at least "some" courtroom experience with psychological syndrome evidence 44% of the judges surveyed had at least "some" courtroom experience with psychological evidence about insanity 26% of the judges surveyed had at least "some" courtroom experience with psychological evidence about the prediction of dangerousness Judges surveyed were also asked about their experience with testimony about the psychiatric or psychological disorders contained within the Diagnostic and Statistical Manual of Mental Disorders (DSM): 17% of judges surveyed had encountered testimony about bipolar disorder 17% of judges surveyed had encountered testimony about schizophrenia 16% of judges surveyed had encountered testimony about a personality disorder 6% of judges surveyed had encountered testimony about depression generally 5% of judges surveyed had encountered testimony about post-traumatic stress disorder 4% of judges surveyed had encountered testimony about attention-deficit hyperactivity disorder N=312 (Judges were given an option of completing these questions over the telephone or via mail; sample size for these questions does not equal 400 as not all mail-out questionnaires were returned).
The subject matter of the social sciences is the human animal. As a result, many of the hypotheses of the social sciences are difficult to test. Experiments and direct observation, for example, can be complicated because of the complexity of the subject matter and because of ethical considerations. There is greater difficulty in controlling researchers' biases, and observation is more likely to affect what is being observed. Moreover, it is often difficult to account for, control, and operationalize all of the complex variables that go into human behavior and choices. Moreover, ethical constraints on withholding treatment often make the random assignment of subjects to treatment and control conditions difficult. Despite the inherent challenges of social science research, however, it is important to recognize the agreed upon practices and standards in the relevant disciplines and to evaluate the evidence in accordance with those standards. It is also important to make a distinction between the therapeutic utility of a psychological or psychiatric concept and the legal utility of that concept.
Clinical vs. Empirical Methods Social and behavioral science disciplines may use both empirical and clinical methods to study human behavior. For instance, some experts who conduct empirical research are clinicians as well and many clinical methods include empirical information. Empirical research refers generally to methodologically sound studies, regardless of whether the researchers are primarily clinicians or empirical researchers. The clinical method is based on observation and relies primarily on personal examination, history-taking and testing. Clinicians make diagnoses using the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV). Clinicians also make assessments using or incorporating information from multiple sources, including medical examinations, clinical interviews, psychological testing, and analyses of psycho-social histories. [With respect to social science evidence,] it is just as important for judges to understand and exercise their gate-keeping authority over both empirical and clinical evidence and testimony.(3)
The Clinical Interview The basic clinical interview usually includes a systematic history-taking and a mental status examination (MSE). The MSE is an evaluation of the individual's current functioning as revealed through observations and responses to interview questions. The MSE, and the basic clinical interview, is often unstructured and can be highly subjective, frequently influenced by the interview setting and the relationship between the interviewer and the interviewee. There is a concern that a clinician's subjective impressions and prior experiences might inappropriately direct the interview process and its findings. However, despite these limitations, clinical interviews can provide important information about the mental and social functioning of an individual. Diagnostic and Statistical Manual of Mental Disorders (DSM) The DSM, including the current DSM-IV, was developed by the American Psychiatric Association primarily to provide mental health professionals with a diagnostic classification system of mental disorders. The DSM includes the criteria necessary for diagnosing organic brain disorders, personality disorders, childhood disorders, relational disorders, associative disorders, and the like. Diagnostic criteria were developed following a systematic review of published literature, re-analysis of previously collected data, and issue-focused field trials evaluating more than 6,000 subjects.(4) Under the DSM-IV, an individual is diagnosed using five axes, each providing different information about the history of the individual's mental condition and functioning.   The strength of the DSM-IV is that it provides a standard, comprehensive diagnostic tool. It reflects a consensus about the diagnosis of mental conditions and categorizes information in a systematic manner. DSM-IV's major limitation is that it also reflects a consensus opinion at the time of publication. While the DSM-IV provides an operational classification and official list of what is and is not considered a psychiatric condition, and there are clinically distinct and medically significant conditions classified within the DSM-IV, there are also intense controversies surrounding some of the lists of symptoms categorized as mental disorders (e.g., multiple personality disorder and attention-deficit hyperactivity disorder). Standardized Psychological Tests Standardized psychological tests allow clinicians to compare various aspects of an individual's behavior to those of a normative group with known characteristics. That is, they have been statistically normed or standardized, allowing clinicians to assess how a patient performs compared to normal individuals or patients with similar disorders. Standardized psychological tests are less susceptible to the subjectivity of the individual evaluator. However, a disadvantage of psychological tests is that they may be used inappropriately to draw a legal conclusion or to label a person on the basis of a test score alone.	Empirical Research: systematic gathering of information and study of problems in accordance with agreed-upon methodological practices of experimental, quasi-experimental or qualitative research Clinical Method: based upon observation, history-taking, testing, and diagnosis; relies upon clinical interviews, psychological testing, psycho-social histories, and medical exams Things to take into account when evaluating the findings of a clinical interview The interview format and the purpose for which it was conducted (e.g., some clinical interviews may be open-ended while others may be semi-structured in format; clinical interviews may be conducted with the purpose of obtaining information about the issue before the court); The place, date, and duration of the interview; The possible need to interview other persons to obtain a more complete understanding of the subjects mental status; The possible limitations to the interviewers knowledge of the relevant information; and The possible strengths associated with the interviewers knowledge of the relevant information.
DSM-IV Multiaxial Diagnosis Axis I -- Clinical Disorders and Other Conditions that May be a Focus of Clinical Attention records the individual's various mental disorders or conditions with the principal diagnosis first Axis II -- Personality Disorders and Mental Retardation records the individual's various personality disorders or mental retardation with principal diagnosis first Axis III -- General Medical Conditions records general medical conditions relevant to a better understanding of individual's mental disorder(s) Axis IV -- Psycho-Social and Environmental Problems records psycho-social and environmental problems that may affect mental disorder(s) such as history of sexual abuse, inadequate finances or family problems Axis V -- Global Assessment of Functioning records clinician's determination of the individual's overall level of functioning on a scale of 1-100 (e.g., 1 to 10 indicates danger to self and others; 91-100 indicates superior functioning) See DSM-IV at 25-35.
Who Has the Appropriate Expertise? Usually, psychiatrists (physicians specializing in mental disorders) and doctors of clinical psychology are qualified as experts on psychological matters, but courts have also permitted (and precluded) a wide range of other individuals to testify about psychological issues. Indeed, several courts have admitted testimony from social workers, police, and even lay witnesses about a variety of psychological issues. Other courts, however, have not been so willing to admit such testimony. Generally, courts should consider a proposed social and behavioral science expert's education and training, licensing and certification, professional work history, publications, and status in the profession. Licensure Licensure of psychiatrists, psychologists, and other mental health professionals is performed at the state level, with requirements varying from jurisdiction to jurisdiction. Licensure, which is state permission to perform certain functions (e.g., diagnosis, treatment) is distinct from certification, which focuses not on the function performed but on the use of a particular professional title (e.g., "psychologist"), and limits its use to individuals who have met specified standards for education, experience, and examination of performance.	Common Criticisms of the DSM The DSM medicalizes normal every-day problems in living (e.g., with the inclusion of adjustment disorders and relational problems). The DSM reflects a cultural and social bias, and consequently categories may be in a state of flux dependent upon the social climate (e.g., in the DSM-II homosexuality was listed as a mental disorder whereas in the current manual it is no longer included). Many of the categories of mental disorder classified in the DSM lack reliability, such that two psychiatrists or clinical psychologists can diagnose the same client with the same presenting problems as having two different disorders. Critics argue that many of the categories (e.g., the personality disorders) are reflective of an underlying Freudian-based theory and are therefore inherently unfalsifiable. Before going any further, stop and reflect ... Why do you think that the DSM is not 'scientific' according to some critics? Why do others claim it is scientific? Does your understanding of philosophy of science help to answer these questions?
Board Certification in a Speciality Both the American Academy of Psychiatry and Law and the American Psychology-Law Society created boards for forensic certification in 1976. The American Board of Forensic Psychiatry governs board certification for psychiatrists and the American Board of Forensic Psychology governs certification for psychologists. While board certification does not guarantee competence in all sub-disciplines of the relevant field, it does ensure that expert witnesses have demonstrated an advanced level of knowledge, skill, experience, training, and education, to the satisfaction of a well-credentialed board of peers. Membership in Professional Associations Active membership, even elected office, in professional associations may not necessarily correspond to any particular degree of knowledge, skill, experience, training, or education. In fact, the American Psychological Association considers it an ethical violation for psychologists to represent their general membership in that organization as a form of certification of expertise. Exceptionally active involvement in professional associations may indicate professional scientific recognition within one's field, or it may signify little more than a reputation for administrative ability.
A CLOSER LOOK AT THE EVIDENCE: PREDICTING FUTURE BEHAVIOR Assessments of Future Behavior(5) Courts frequently rely on psychiatrists and psychologists to assist them in assessing future behavior, especially violence or dangerousness. Recall that 26% of the judges surveyed had "some" courtroom experience with psychological evidence about the prediction of dangerousness. However, the ability of psychiatrists and psychologists to make accurate predictions of future dangerousness remains controversial. In particular, there remains a debate as to whether predictions of dangerousness are accurate enough to justify the deprivation of liberty or life. Today, researchers and clinicians have shifted the debate from whether predictions of dangerousness are accurate enough to meet legal standards of proof, to how judges can use risk assessment factors to aid their decision-making. For example, in juvenile and family courts risk assessment instruments are sometimes offered in child protection cases to provide an estimate of the probability that in a case of child maltreatment there will be a future recurrence of maltreatment. The goal of such a risk assessment is to help the decision-maker determine whether a child should be removed from the home. There is a key difference between the ability of clinicians to predict dangerousness and their ability to identify factors that increase the potential risk of violence. While research does not support the finding that clinicians can predict with certainty who will commit a violent act, they can identify those, who over the short term, may have an increased risk of doing so and who may respond to treatment.(6)	Standardized Tests: tests that have been statistically normed or standardized, permitting clinicians to compare scores of test subjects with the scores of normal individuals or patients with similar disorders Questions to consider when evaluating the results of psychological tests and how they are interpreted ... Was the appropriate test used for a specific individual (e.g., certain tests are more appropriate for children than adults)? Is the test being used appropriately for the specific legal issue at hand; and Can the data obtained be applied properly to the specific subject of that particular legal inquiry?
Before going any further, stop and reflect ... Does psychological and psychiatric evidence constitute scientific evidence in the manner meant by Daubert? Might this differ according to which sub-discipline of psychology is at issue - clinical psychology vs. social psychology vs. neuro-psychology? What challenge does psychological and psychiatric evidence face from evidentiary standards that rely on "falsifiability?" Might this differ depending on the sub-discipline at issue? What do you think the future holds for the admissibility and utility of various types of psychological and psychiatric evidence? How much confidence do you have in the ability of psychologists and psychiatrists to assess risk or to predict dangerousness? As a judge, what factors would you consider if you were to predict the future behavior of a particular individual? Do you think psychologists and psychiatrists are any more accurate in their assessments of future behavior than are judges or lay people? Why or why not? Why do you think courts have continually upheld the use of prediction of dangerousness testimony? What do you think the consequences would be if courts no longer used such testimony? How do risk assessments differ from predictions of future behavior? Do risk assessments have more or less value What information would you need about these procedures to determine their reliability and validity?
Assessment Methods Clinical Method: Based on observation and personal examination, history-taking, and testing. The clinician reviews the data obtained from the assessment and forms an opinion about the likelihood of the individual engaging in a particular future behavior. Actuarial Method: Based on assigning statistical probabilities of outcomes from combinations of a number of variables that correlate with the behavior at issue (future violence). The expert's opinion is a general probability based on given variable percentages. For example, assuming that males have a higher probability of committing violent crimes than females, an individual male has a higher probability for violence under the actuarial method. Empirical research has consistently demonstrated that psychiatric and psychological predictions of dangerousness generally prove to be inaccurate.(7) In Barefoot v. Estelle, the Supreme Court ruled that special caution should be expected when considering the admissibility of predictions of dangerousness testimony because it often literally involves a life and death decision.(8) Yet the Supreme Court permitted psychiatrists to testify about the dangerousness of the defendant even though they had never examined him. The continued reliance on dangerousness predictions and the lack of empirical validity has led task forces of psychiatric and psychological professional organizations to acknowledge that mental health professionals lack competence in this area. The American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual, for example, has taken the position that "neither psychiatrists nor anyone else have demonstrated an ability to predict future violence or dangerousness"(9) (American Psychiatric Association, 1974, p. 20). In Barefoot v. Estelle The American Psychiatric Association had even submitted an amicus brief that stated, Contrary to the claims of the prosecution psychiatrists who testified in this case, psychiatric predictions of long-term future dangerousness -- even under the best of conditions and on the basis of complete medical data -- are of fundamentally low reliability.(10) More recently, the American Psychological Association Task Force on the Role of Psychology in the Criminal Justice System concluded that "the validity of psychological predictions of violent behavior ... is extremely poor, so poor that one could oppose their use on the strictly empirical grounds that psychologists are not professionally competent to make such judgments."(11) Yet despite cautions by the Supreme Court, the American Psychiatric Association, and the American Psychological Association, expert testimony about future dangerousness remains a significant means of persuading legal fact-finders that a defendant poses a threat to society.	Objective vs. Projective Measures of Personality Objective Personality Tests Objective measures generally consist of true-false or check the best answer questions. The aim of objective personality tests varies. The term 'objective' means that the test scoring is objective, not that the interpretation of the test results is objective. The Minnesota Multiphasic Personality Inventory-2 (MMPI-2) is the most widely used and researched personality test. It is designed to measure major personality patterns and psychopathology on a variety of clinical and validity scales. The validity scales measure lying, defensiveness, and exaggeration. The norms for the MMPI-2 are based on the profiles of thousands of 'normal' people and a smaller group of psychiatric patients. The MMPI-A is a variation of the MMPI-2 for use with adolescents between the ages of 14 and 18. This version is shorter, contains a section that relates only to adolescent problems, and scores the test results by comparison only to adolescent averages. Projective Personality Tests The fundamental assumption underlying projective personality tests is that a person's unconscious motivates and directs daily thoughts and behavior. To uncover those unconscious motivations, clinicians provide ambiguous stimuli to which the individual can provide responses that might reflect his unconscious. The assumption is that the individual 'projects' unconscious feelings, drives, and motives onto the ambiguous stimuli. A widely known projective test is the Rorschach Inkblot Test. In the Rorschach, inkblots are shown, one at a time, to the individual being examined who then tells the clinician what he sees in the design. A detailed report of the response is made for later interpretation. Although norms are available for responses, skilled interpretation and good clinical judgment are necessary to place a subject's responses in a meaningful context. Use and Misuse of the MMPI and MMPI-2 The major problem with the MMPI and MMPI-2 is that mental health professionals may give testimony that is far beyond what the test can assess. For example, professionals may interpret MMPI scores and draw conclusions about how an individual's MMPI is in some fashion typical or not typical of sex offenders. However, neither the MMPI nor the MMPI-2 have scales that determine whether or not an individual is a pedophile or a sex offender. There has been research on MMPI scale elevations in sex offenders, but there is no typical sex offender MMPI profile. Although mean profiles often involve scales 4 and 8, with 9 and 2 also sometimes elevated, these elevations were also found in murderers, arsonists, and property offenders in a forensic psychiatric facility. Elevations on scale 4 are also common in prison populations. Thus, the MMPI cannot establish whether an individual is a sex offender. Nevertheless, the MMPI and MMPI-2 can provide information about personality characteristics that might be useful in the overall analysis of a case. It is most useful when there are allegations of highly deviant, low base rate, or sadistic abuse which the individual denies, and a valid, within 'normal limits MMPI' suggests the absence of psychopathology. In such cases, the clinician must pay attention to the discrepancy. Common Examples of Psychological Syndromes Battered Woman (Spouse) Syndrome Repressed Memory Syndrome Rape Trauma Syndrome False Memory Syndrome Child Sex Abuse Accommodation Syndrome Parental Alienation Syndrome Recall that an underlying theory is not falisfiable if there is no circumstance, behavior, or observation which could be used to conclude that an event did or did not occur &endash; when virtually any type of behavior can be viewed as supportive of the hypothesis the underlying theory is unfalsifiable. Considerations when Assessing Known or Potential Error Rates with Syndrome Evidence: carefully evaluate the methodology used in corroborative testing carried out on the syndrome evidence; determine whether the method of data collection (e.g., clinical interview, actuarial methods, reliance on the DSM, empirical research) was well-accepted in the relevant discipline; consider whether there have been adequate replications of the findings or whether the claim of a syndrome rests on a narrow database; and determine whether the probative value of the syndrome outweighs its potential prejudicial value.
A CLOSER LOOK AT THE EVIDENCE: PSYCHOLOGICAL SYNDROMES All types of syndromes have found their way not only into the courtroom but into the lexicon of most Americans - battered woman syndrome, child sexual abuse syndrome, rape trauma syndrome - and the list continues. A syndrome is a group or constellation of symptoms that appear together regularly enough to become associated with each other. Unlike a disease, whose underlying cause is either known or relatively well understood, the etiology of a syndrome is usually not known or is poorly understood. Therefore, the symptoms of a syndrome do not clearly and convincingly result from a specific etiology. Some syndromes are descriptions of behaviors consistently exhibited by large numbers of people exposed to similar stimuli, such as those described as the battered woman syndrome. Some syndromes are an attempt to postulate a diagnostic tool based on observable behaviors, such as the child sexual abuse syndrome. Syndrome: a group or constellation of symptoms that appear together regularly enough to become associated Syndromes can be descriptions of behaviors consistently exhibited by large numbers of people exposed to similar stimuli (e.g., BWS or battered woman syndrome), or attempts to postulate a diagnostic tool based on observable behaviors (e.g., CSAAS or child sexual abuse accommodation syndrome) Both diseases and syndromes share the medically and forensically important feature of diagnostic value. Both point with varying degrees of certainty to particular causes. However, whereas with many diseases the relationship between symptoms and etiology is clear, with syndromes, this relationship is often unclear or unknown. The certainty with which a syndrome points to a particular cause varies with the syndrome. Two syndromes often offered in expert testimony in cases of alleged child abuse are the Battered Child Syndrome (BCS) and Child Sexual Abuse Accommodation Syndrome (CSAAS). The battered child syndrome has high certainty since a child with the symptoms is very likely to have suffered non-accidental injury. Therefore, this syndrome has high probative value and, in fact, has been approved by every appellate court to consider it. This can be contrasted with CSAAS which does not point with any certainty to sexual abuse. The fact that a child shows behaviors of the CSAAS does not change the likelihood that the child was sexually abused.
A national snapshot of judges' experience with psychological syndrome evidence ... Of those judges reporting that they had past experience with psychological syndrome evidence (n=255): 77% of the judges reported that they had experience with Battered Woman Syndrome (BWS) evidence; 33% of these judges reported their level of experience with BWS as a 3 or higher on a 5 point scale (with 0 being "no experience" and 5 being a "great deal of experience") 73% of the judges reported that they had experience with Child Sex Abuse Accommodation Syndrome (CSAAS) evidence; 35% of these judges reported their level of experience with CSAAS as a 3 or higher on a 5 point scale (with 0 being "no experience" and 5 being a "great deal of experience") 64% of the judges reported that they had experience with Rape Trauma Syndrome (RTS) evidence; 24% of these judges reported their level of experience with RTS as a 3 or higher on a 5 point scale (with 0 being "no experience" and 5 being a "great deal of experience") 41% of the judges reported that they had experience with Repressed Memory Syndrome (RMS) evidence; 7% of these judges reported their level of experience with RMS as a 3 or higher on a 5 point scale (with 0 being "no experience" and 5 being a "great deal of experience") N=312 (Judges were given an option of completing these questions over the telephone or via mail; sample size for these questions does not equal 400 as not all mail-out questionnaires were returned).
Issue: Falsifiability and Syndrome Evidence Some syndromes may not be falsifiable or testable at all, especially to the extent they are derived from Freudian-based theories. Indeed, the application of Daubert criteria to Freudian-based theories may prove to be particularly problematic. For example, if the effects of an early trauma may be manifested in art ('sublimation'), in maladaptive presumptions about others ('projection'), or not manifested at all ('repression'), then there is no way to falsify the claimed causal sequence, unless conditions are specified that determine which of the consequences of the trauma will occur under which circumstances. The theory does not provide such specificity, so that no manifestation, an artistic manifestation, or a maladaptive interpersonal manifestation may all be accepted as evidence of the trauma. In addition, such theories are typically used post hoc to provide explanations for events but not to make discrete predictions. The result is an absence of falsification attempts. While falsification is problematic for psychological syndrome testimony, it is important to stress that Daubert does not require that falsifiability, or lack of falsification attempts, serve as the definitive admissibility criteria or the definitive characteristic of science. Before going any further, stop and reflect ... To what extent do you think syndrome evidence is falsifiable? Why? Some critics argue that psychological syndrome evidence should not be classified as scientific evidence, and therefore the guideline of falsifiability is not applicable. Others argue that it is. What do you think? Why? What type of information would you expect to hear from an expert proffering testimony on a psychological syndrome? Issue: Error Rates and Syndrome Evidence A consideration of error rates with respect to syndrome evidence can be thought of in terms of weighing the risk of making a "false positive" error or a "false negative" error (see earlier chapters on experimental method and statistics). For example, widespread acceptance of questionable syndrome evidence that has, in actuality, no scientific reliability, could result in false positive errors - identifying an individual as abused or an abuser, for example, when it is not true. This could arise in part because of Daubert's statement that the more liberal Federal Rules of Evidence supersede the Frye test. Conversely, the court should be concerned about wholesale rejection of valuable syndrome evidence that might have assisted the trier of fact in making a proper and just decision, resulting in more false negative errors. This could easily happen, given the considerable controversy about new syndromes.
Before going any further, stop and reflect ... Some critics argue that psychological syndrome evidence is not scientific and therefore is not subject to an error rate analysis. Others argue that it is. What do you think? Why? To what extent can the potential error rate of syndrome evidence be determined? What information would you expect to hear from an expert proffering psychological testimony with respect to potential error rates? With respect to psychological syndrome evidence, what are the potential consequences of making a false positive error? A false negative error? Battered Woman Syndrome Battered woman syndrome (BWS) is described by Lenore Walker in The Battered Woman (1979)(12) as a combination of a three-phase cycle of abuse which is accompanied by "learned helplessness" on the part of the abused woman. This cycle is repeated again and again, with the victim developing a "learned helplessness" that precludes her from leaving the batterer. Specifically, Walker has identified three distinct periods within the course of a battering episode: The Tension-Building Stage An Acute Battering Incident Contrite and Loving Behavior I. The Tension-Building Stage This stage is characterized by a series of minor verbal and physical battering events which precede an acute battering incident. Typical characteristics of this stage include: increases in the frequency and severity of the battering incidents; decrease in the effectiveness of strategies used by the women to placate their batterers; and feelings of responsibility on part of the women because they have been unable to control the batterer's behavior. II. An Acute Battering Incident During the tension-building stage, tension builds and is ultimately released in an acute battering incident. The characteristics of this stage are: uncontrollable rage and destructiveness on the part of the batterer which usually does not end until the victim is severely beaten; the triggering of rage by some external event or the internal state of the batterer, as opposed to the behavior of the victim; and an acute battering incident that is briefer in duration than either the tension-building stage or the period of contrite and loving behavior. III. Contrite and Loving Behavior A period of unusual calm typically follows the acute battering incident, during which the batterer attempts to make up for the abusive behavior. Characteristics associated with this stage are: admission of wrongdoing on the part of the batterer, accompanied by apologies and the batterer's assurances that the abusive behavior will not happen again; intensive effort on the part of the batterer to "win back" the victim through gifts, enlistment of other family members, and appeals to the victim's guilt over the adverse consequences the batterer will suffer if the victim leaves; victim's capitulation from anger, fear, hurt, and loneliness to happiness and confidence; and a strengthening of the the bond between the batterer and victim as they both come to believe, through reinforcement, that their relationship can be made to work. The battered woman syndrome (BWS) has been brought to the attention of nearly every court in the country during the last decade, partly as a result of the success defendants have had introducing the evidence in early cases (e.g., Ibn-Tamas v. United States,(13) State v. Anaya,(14) and Smith v. State(15)). Battered woman syndrome has been endorsed as a theory by the American Psychological Association and has been recognized and admitted by a majority of states.(16) Contextual factors possibly affecting the battered woman's response to abuse: fear of retaliation available economic and other tangible resources worry for children emotional attachment to batterer personal emotional strengths such as hope culture personal vulnerabilities (emotional, mental, physical) perception of available social supports From: Dutton, M.A. (1993). "Understanding Women's Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome,. Hofstra Law Review , Vol 21,1191, pgs. 1205-06. Some Problems Associated With the Use of BWS in Court Definitional problems with BWS and variations of behaviors exhibited both by battering men and by battered women Significant variations among courts about whether BWS testimony should be admitted and for what purpose Whether BWS constitutes 'good science,' and under what standard of admissibility it should be judged The problematic nature of deciding the admissibility of BWS testimony Those judges who reported 'some' or 'a great deal' of experience with BWS evidence were asked what aspect of the evidence is most problematic when determining its admissibility. Identified problem areas include (in order of frequency of mention): the subjectivity of the diagnostic process determining its relevance to the facts at issue weighing its probative vs. prejudicial value determining its general acceptance determining the appropriate qualifications of BWS experts Some Case Law on BWS Early on, certain courts did not want to admit BWS testimony, determining that the jury could comprehend the facts about the woman's situation without an expert to interpret such testimony. Increasingly over the years, however, courts began accepting that battered women not only view the danger of the abuse differently than others, but that juries were having difficulty comprehending why women stay with their abusers. One reason that BWS has become admissible evidence in the court is that many jurors have inaccurate, stereotypic ideas about battered women. It is because facts about battered women and battering relationships are often considered to be 'beyond the ken of the jury' that they have been admitted into evidence (cf. Arcoren v. U.S., 929 F.2d 1235 (8 th Cir.); State v. Allery, 682 P.2d 312, 316 (Wash. 1984); State v. Borelli, 629 A.2d 1105 (Conn. 1993); Smith v. State, 277 S.E. 2d 678 (Ga. 1981); State v. Gallegos, 719 P.2d 1268 (N.M. App. 1986)). Two-thirds of states have held expert testimony on BWS relevant to the issue of why the defendant did not leave the batterer, or to explain other conduct such as acts committed under duress from the abuser. Of the courts which have recognized the syndrome and permit testimony about it, there are many variations in the method of its admission. Some courts permit experts to testify in a self-defense scenario but refuse to permit the expert to render an opinion as to whether the woman was a battered woman (e.g., People v. Wilson, 487 N.W.2d 822 (Mich. App. 1992)). Some courts have permitted experts to render opinions on the ultimate issue, namely, whether the woman was in fear of death or great bodily harm at the time of the killing (e.g. State v. Wilkins, 407 S.E.2d 670 (S.C. App. 1991)). The majority of courts that have allowed BWS have admitted it into evidence as part of the defense in cases in which the defendant is alleging self-defense in response to a murder or attempted murder charge. The testimony has been admitted because the expert's knowledge is beyond the ken of the juror and to assist the jury in understanding the state of mind of the defendant at the time of the killing (an essential element of self-defense). For example, in Bechtel v. State (840 P.2d 1, Okla. App. 1992) the court permitted the defendant to introduce the entire history of battering in the relationship in order to "put into context" the defendant's understanding of imminent bodily harm. Many other courts have combined the concepts of overcoming stereotypes and educating juries about the perceptions of a battered woman when permitting BWS evidence in self-defense cases (e.g., State v. Allery, 682 P.2d 312 (Wash. 1984); Ex parte Hill, 507 So. 2d 558 (Ala. 1987); People v. Humphrey, 921 P.2d 1 (Cal. App. 1996); Ibn-Tamas v. United States, 407 A.2d 626 (D.C. App. 1979)). The use of BWS has been raised in other types of criminal cases, where a woman has raised duress or compulsion as a defense, or where she claims to have been unable to protect her children from abuse. In a few cases, courts have held that expert testimony about BWS might be helpful where the defendant claimed she was unable to form the requisite capacity to commit the crimes charged (e.g., United States v. Brown, 891 F. Supp. 1501 (D. Kan. 1995); United States v. Marenghi, 893 F. Supp. 85 (D. Me. 1996)). Several states have enacted statutes addressing the admissibility of expert testimony about BWS. While each statute is different, the states that have enacted statutes have uniformly permitted expert testimony in cases in which the accused alleges self defense to a charge of homicide (e.g., Cal. Evid Code § 1107; Mo Stat § 563.033; Ohio Rev Code § 2901.06). Nevertheless, the introduction of BWS as evidence has caused considerable debate. The effects of battering and abusive relationships have been studied using a variety of methods, including clinical interviews, surveys, and the administration of psychological tests. National surveys have attempted to document the prevalence of abuse using large representative samples, but have failed to provide rich descriptions of the experience of battered women. Clinical interviews provide detailed information about battered women's experiences, but because they typically use small, selective samples, the representativeness of this research is questionable. The early research regarding the battered woman syndrome has been directly attacked for methodological flaws. For example: failure to employ an appropriate control group failure to employ appropriate statistical tests failure to employ controls to guard against researcher bias.(17) Walker's application of learned helplessness has also been criticized. A review of the literature on learned helplessness found several studies in which battered women took action to end their abuse and employed a wide range of coping skills in their relationships.(18) These self-help measures, however, conflict with learned helplessness theory, which would predict that battered women would not take positive action to change their situations. However, others found that the actions taken by these women are typically passive, such as fantasizing or obtaining social or spiritual support.(19) More recent studies have attempted to address criticisms regarding lack of control groups in the study of battered women by comparing battered women who kill their abusers with those who do not and finding significant differences between these groups.(20) Before going any further, stop and reflect ... What purpose does BWS evidence serve for the court? Are there alternative ways in which the concerns of battered women could be addressed in court without reliance on BWS testimony? Can you think of a research design to study the effects of battering on victims? What ethical concerns are raised when conducting this type of research? To what extent, if any, do you think the introduction of BWS into court has been driven by political or social concerns?	A Matter of Degree M.D. in Psychiatry: involves medical training, internship and residency with a specialization in psychiatry. As medical doctors, psychiatrists can prescribe medication. Ph.D. (Doctor of Philosophy) in Psychology: involves training in research and theory within specific sub-disciplines and requires conducting original dissertation research (e.g., a Ph.D. in developmental psychology focuses on the emotional, physical, and intellectual changes over the life span; a Ph.D. in social psychology studies how other people affect individual behavior and thoughts, especially through social interaction). Ph.D. (Doctor of Philosophy) in Clinical Psychology: training can be described as the 'scientist-practitioner' model. In addition to training in research and theory, clinical psychologists complete several clinical practica, a research dissertation, a pre-doctoral internship, and often a year of post-doctoral supervision. Despite lobbying efforts, clinical psychologists are not currently permitted to prescribe medication. Psy.D. (Doctor of Psychology): training can be described as the 'practitioner model.' This degree does not focus on research. Rather, the focus is on extensive training in assessment and treatment of psychological disorders. Ed.D. (Doctor of Education): often specializing in counseling or educational psychology; Involves training in theory and scholarly consideration of a behavioral or educational problem or issue (e.g., through practical educational experiences, directed field experiences). M.A., M.S., M.Ed, M.S.W., etc.: in many states persons with a master's degree may perform some aspects of psychological practice. However, this is often required to be conducted under the supervision of a doctoral level professional. Licensure: state granted permission to perform certain functions related to diagnosis, treatment, or dispensing of medication; legal permission to perform a specified function; typically requires an educational degree requirement and a specified number of practical training hours Certification: a formal designation of someone to use a professional title based upon education, training, and experience; a statement authorizing an individual to officially practice in a certain profession Some Professional Associations For psychiatrists: American Psychiatric Association American Board of Psychiatry and Neurology American Psychoanalytic Association American Academy of Psychiatry and Law For psychologists: American Psychological Association American Board of Professional Psychology American Psychology-Law Society American Psychological Society (focuses on scientific rather than practice or applied interests) Most professional organizations have various divisions which reflect areas of specialization within the general field. Questions to consider when evaluating expert qualifications ... Employment history Does the expert actually practice in the field he intends to testify about? Educational history Does the expert have sufficient education and training in the field? What was the nature of his education (e.g., research, clinical training and supervision, etc.)? Is the expert's educational history relevant to the field he intends to testify about? Licensing and board certifications Is the expert appropriately certified or licensed within the profession? Memberships in national associations What professional associations does the expert belong to and why? To what extent are these professional memberships relevant to the expert's training and expertise? To what extent are these professional memberships relevant to the issue at hand? Areas of expertise/specialty What is the expert's particular area of expertise? Is this area of expertise relevant to the issue at hand? Advanced specialized training in that field of expertise, including research, studies, lectures attended or given Has the expert received any advanced specialized training or education (beyond the degree and liscensure requirements) in his field of expertise (e.g., continuing education)? Professional experience What relevant professional experience does the expert have since completing minimum degree, training, and liscensure requirements (e.g., clinical experience, research experience)? What professional positions has the expert held (e.g., employment history)? Publications and professional contributions to the field Has the expert published within the subject about which he intends to testify? If the expert has published, what was the nature of those publications (e.g,. subject matter, which journals)? To what extent is the expert a recognized authority in his particular speciality? Prior testimony or employment as expert Has the expert served as a witness before? If yes: On what topic? In what type of cases? In how many cases? For what side? Has the expert ever testified to a contrary position in another proceeding? The Statistical Base-Rate Problem The type of behaviors that would meet many of the applicable legal standards for dangerousness are rare -- this results in a statistical base-rate problem. For example, suppose that only 1 in 100,000 individuals is likely to commit a violent sexual act in the next six months. Even if a clinician is able to estimate with good accuracy that based on risk assessment factors a particular individual is 10 times more likely to commit a sexually violent act in the next six months than the average person in the community, this still means that there is only a 1 in 10,000 chance that this particular individual will commit a violent sexual act within that time frame. Some Case Law on Future Dangerousness The courts, including the United States Supreme Court, have consistently upheld the use of predictions of dangerousness. The logic underlying the courts' decisions in this area seems to be that predictions of dangerousness are essential to the functioning of the justice system. Indeed, courts have ruled that predictions of dangerousness are admissible even though they "lack scientific merit." In upholding the Texas capital sentencing statute which requires a finding of dangerousness, the U.S. Supreme Court in Jurek v. Texas specifically considered the claim that the statute was invalid because "it is impossible to predict dangerous behavior" (at 274). In addressing this argument the Court concluded: "It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system" (at 276). The problematic nature of deciding the admissibility of RTS testimony Those judges who reported 'some' or 'a great deal' of experience with RTS evidence were asked what aspect of the evidence is most problematic when determining its admissibility. Not surprisingly, the problems identified with respect to RTS testimony were the same as those identified for BWS testimony, and included (in order of frequency of mention): the subjectivity of the diagnostic process determining its relevance to the facts at issue weighing its probative vs. prejudicial value determining its general acceptance determining the appropriate qualifications of RTS experts Questions to consider when evaluating assessments of future behavior ... Is the clinical information that is being presented based upon an assessment (i.e., identification of risk factors associated with violence) or a prediction? What method or approach was used to gather information to make the assessment or prediction? What is the reliability and validity of the testimony or opinion? CRITICAL QUESTIONS REVIEWED Was the appropriate test used for a specific individual (e.g., certain tests are more appropriate for children than adults)? Is the test being used appropriately for the specific legal issue at hand and can the data obtained be applied properly to the specific subject of that particular legal inquiry? Is the expert appropriately certified or licensed within the profession? What professional associations does the expert belong to and why? To what extent are these professional memberships relevant to the expert's training and expertise? To what extent are these professional memberships relevant to the issue at hand? What is the expert's particular area of expertise? Is this area of expertise relevant to the issue at hand? Has the expert received any advanced specialized training or education (beyond the degree and liscensure requirements) in his field of expertise (e.g., continuing education)? What relevant professional experience does the expert have since completing minimum degree, training, and liscensure requirements (e.g., clinical experience, research experience)? What professional positions has the expert held (e.g., employment history)? Has the expert published within the subject about which he intends to testify? If the expert has published, what was the nature of those publications (e.g,. subject matter, which journals)? To what extent is the expert a recognized authority in his particular speciality? Has the expert served as a witness before? If yes: On what topic? In what type of cases? In how many cases? For what side? Has the expert ever testified to a contrary position in another proceeding? Is the clinical information that is being presented based upon an assessment (i.e., identification of risk factors associated with violence) or a prediction? What method or approach was used to gather information to make the assessment or prediction? What is the reliability and validity of the testimony or opinion?
Rape Trauma Syndrome Burgess and Holmstrom coined the term "rape trauma syndrome"(RTS) in 1974, and it refers to the acute phase and long-term reorganization process that is said to occur as a result of forcible rape or attempted forcible rape. Burgess and Holmstrom studied 92 patients who presented to the emergency room at Boston City Hospital during a one-year period with the complaint of rape. According to this study, rape victims generally go through a two phase reaction: Acute Phase Long-term Reorganization Phase I. Acute Phase In the acute phase, lasting several weeks after the rape, victims are said to experience physical trauma from the rape, skeletal muscle tension manifesting in headaches, sleep disturbances, and an elevated startle reaction, gastrointestinal disturbances, as well as intense fear and self-blame. II. Long-term Reorganization Phase In the long-term phase, victims experience disorganization in their lives and must go through a "reorganization process." This phase is marked by increased motor activity (e.g., moving, traveling, and contacting support systems), nightmares, and phobic reactions to the circumstances of the rape, such as fears of being indoors or outdoors, and the fear of being alone or in crowds. In the legal arena, evidence about RTS is usually introduced against a male criminal defendant charged with forcible rape. Sometimes it is offered as social framework evidence to put the victim's action into context. For instance, the prosecution may offer an expert on RTS to explain the victim's actions around the time of her alleged rape, especially if they seem inconsistent with the expected behavior of someone who has just been raped.(21) Other times, testimony regarding RTS is offered to support the contention that the victim did not consent to intercourse(22) or to show that intercourse did, in fact, take place.(23) RTS evidence has also been proffered by the defense who argue that if the victim had actually been raped she would exhibit symptoms of RTS. That is, the absence of RTS has been used as a defense for rape.(24) A 1992 review of case law concluded that the reliability and validity of scientific research on RTS was not often a concern of the courts.(25) When it was an issue, however, two basic themes emerged: (1) problems recognizing a single syndrome given the broad range of symptoms and responses exhibited by different victims; and (2) problems ruling out alternate causes of post-traumatic stress reactions. Burgess and Holmstrom's original work, as well as other early studies of rape trauma syndrome, have been criticized as suffering serious methodological flaws, such as: lack of a control group; problems with sample size and sample characteristics; failure to operationalize important definitions and concepts; and potential selection bias, inconsistent interviewing methods, and inadequate long-term follow-up of victims However, the methodology of later studies on rape trauma syndrome has significantly improved. Though not error-free, these studies have "assessed victim recovery at several points after the assault using standardized assessment measures and ... have employed carefully matched control groups."(26) The newer studies confirm those documented by Burgess and Holmstrom (1974), with victims exhibiting fear, depression, guilt, sleep disturbances, and emotional disorders. Indeed, soon after post-traumatic stress disorder (PTSD) was added to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) in 1980, "the authoritative treatise interpreting PTSD immediately recognized RTS as a quintessential example."(27) Despite this endorsement, some critics maintain that recent studies still suffer from inadequate operational definitions and biased research samples, and that individual reactions to rape are so dependent upon various factors that no causal relationship can be established.(28)
Theoretical Paradigms in Psychology and Psychiatry A variety of theoretical paradigms exist within psychology and psychiatry. Each reflects different underlying assumptions about human behavior and the causes of psychological/psychiatric disorders, and each proposes different treatment plans. Medical-Biological Theories assume psychological disorders are the result of biological and physiological conditions treatment usually involves drugs to change biochemical and other bodily functions Psychodynamic Theories assume psychological disorders result from anxiety produced by unresolved conflicts and forces a person may not be aware of treatment usually involves helping a patient become more aware of motivations, conflicts, and desires Behavioral Theories assume psychological disorders are caused by faulty or ineffective learning and conditioning patterns treatment usually involves reshaping disordered behavior through learning techniques such as reinforcement and modeling Cognitive Theories assume psychological disorders are the result of faulty or unrealistic thinking treatment usually involves developing new thought processes that instill new values Social Psychological Theories assume that behavior and social interaction are setting dependent not a discipline of psychology typically focused on treatment issues; a research sub-discipline Remember that a particular paradigm reflects certain assumptions and values, and influences what areas and problems are selected for attention, how those problems are addressed, and how success will be measured. Some Case Law on RTS Since the first RTS case in 1982 ( State v. Saldana, 324 N.W. 2d 227 (Minn. 1982), there have been a variety of approaches to the admissibility of such evidence. Only one jursidiction has permitted RTS testimony as substantive evidence that the victim was, in fact, raped, although some states' decisions could arguably be interpreted as doing so. In State v. Allewalt (517 A.2d 741, Md. 1986) the Maryland Supreme Court held that it was not an abuse of discretion to admit testimony of an expert who testified about post-traumatic stress disorder (PTSD) and his belief that the witness suffered from PTSD as a result of the rape in question. Some states have permitted evidence of RTS to be admitted for the purpose of helping to determine whether the woman consented to the sexual intercourse or whether such intercourse was, in fact, against her will (e.g., State v. Marks, 647 P.2d 1292, Kan. 1982; State v. McQuillen, 689 P.2d 822, Kan. 1984; State v. Huey, 699 P.2d 1290, Ariz. 1985). Many courts have permitted admission of RTS evidence concerning the typical behaviors of women who have been raped &endash; that is, an explanation of the symptomology of RTS (e.g., People v. Bledsoe, 681 P.2d 291, Cal. 1984; Commonwealth v. Mamay, 553 N.E.2d 945, Mass. 1990; People v. Pullins, 378 N.W. 2d 502, Mich. App. 1985; People v. Hampton, 746 P.2d 947, Colo. 1987; People v. Reid, 475 N.Y.S. 2d 741, N.Y. Sup. Ct. 1984; People v. Taylor, 552 N.E. 2d 131, N.Y. 1990) Although the majority of states addressing the subject have admitted RTS evidence, there are a few states that have disallowed any evidence of RTS to be introduced. In State v. Saldana (324 N.W. 2d 227, Minn. 1982) for example, the court ruled that "rape trauma syndrome is not a fact-finding tool, but a therapeutic tool useful in counseling" (at 230). Accordingly, such testimony was held to be inadmissible. Saldana has been followed in several jurisdictions for the proposition that RTS is not admissible as proof that a rape occurred (e.g., Commonwealth v. Gallagher, 547 A.2d 355, Pa. 1988). Courts applying the Daubert standard to rape trauma syndrome in rape cases engage in what appears, on its face, to be a Daubert analysis. In State v.Alberico, for example, the Supreme Court of New Mexico found that "rape trauma syndrome testimony [wa]s gounded in valid scientific principles," since it had been catalogued in the diagnostic and statistical manual of psychiatrists and psychologists and "appear[ed] to be grounded in basic behavioral psychology." The court did not, however, discuss any of the factors articulated in Daubert, nor did they consider any other factors which are critical to "good science."
Endnotes: 1. Sales, B.D. (1994). "Social and Behavioral Science Evidence in Litigation: Is it a Special Type of Scientific Evidence?" Shepard's Expert and Scientific Evidence Quarterly, Vol. 2(2), pg. 321. 2. National Benchbook on Psychiatric and Psychological Evidence and Testimony (1998), Chp. 3, pg. 47. State Justice Institute. 3. Ibid, Chp. 1, pg. 19. 4. See DSM-IV at xiii-xxv. 5. This section is adapted from National Benchbook on Psychiatric and Psychological Evidence and Testimony, Supra note 2, Chp. 3, pgs. 48-49. State Justice Institute. 6. Monahan, J. (1997). "Clinical and Actuarial Predictions of Violence." In David Faigman et al. (eds.), Modern Scientific Evidence: The Law and Science of Expert Testimony. West Publishing Co. 7. See for example Cocozza, J.J. and Steadman, H.J. (1976). "The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence." Rutgers Law Review, Vol. 29, pg. 1084; Kozol, P., Boucher, A., and Garofolo, M. (1972). "The Diagnosis and Treatment of Dangerousness." Crime and Delinquency, Vol. 18, pg. 371; Steadman, H.J., and Morrissey, L. (1981). "The Statistical Prediction of Violent Behavior." Law and Human Behavior, Vol. 5, pg. 263; Wenk, B., Robison, R., and Sineth, C. (1972). "Can Violence be Predicted?" Crime and Delinquency, Vol. 18, pg. 393. 8. Barefoot v. Estelle, 463 U.S. 880 (1983). 9. American Psychiatric Association. (1974). Task Force on Clinical Aspects of the Violent Individual: Report No. 8. 10. Ibid. 11. American Psychological Association. (1990). "Report of the Task Force on the Role of Psychology in the Criminal Justice System." American Psychologist, Vol. 73, pg. 1099. 12. Lenore Walker (1979) developed BWS based upon commonalities she observed among battered women in her psychotherapy practice and 120 interviews with battered women. 13. 407 A.2d 626 (D.C. 1979). 14. 438 A.ed 892 (Me. 1981). 15. 277 S.E. 2d 678 (Ga. 1981). 16. See cases collected in State v. Bechtel, 840 P.2d 1, 7 n.5 (Okla. App. 1992). 17. Faigman, D.L. (1986). "The Battered Woman Syndrome and Self-Defense: A Legal and Empirical Disent." Virginia Law Review, Vol. 72, pg. 619; Faigman, D.L. and Wright, A.. (1997). "The Battered Woman in the Age of Science." Arizona Law Review, Vol. 39, pg. 67; Schuller R.A. and Vidmar, N. (1992). "Battered Woman Syndrome Evidence in the Courtroom." Law and Human Behavior, Vol. 16, pg. 273. 18. Schuller, R.A. and Vidmar, N. (1992). "Battered Woman Syndrome Evidence in the Courtroom: A Review of the Literature." Law and Human Behavior, Vol. 16, pg. 273. 19. Barnett and Laviolette. (1993). It Could Happen to Anyone: Why Battered Women Stay. New York: Plenum. 20. Browne. (1987). Why Battered Women Kill. Chicago: University of Chicago Press. 21. cf., People v. Taylor, 552 N.E.2d 131 (N.Y. 1990) allowing such testimony to aid in explaining the victim's behavior. 22. State v. Huey, 699 P.2d 1290 (Ariz. 1985); State v. Marks, 647 P2d 1292 (Kan. 1982); State v. Saldana, 324 N.W. 2d 227 (Minn. 1982). 23. State v. Bressman, 689 P.2d 901 (Kan. 1984); People v. Taylor, 552 N.E.2d 131. 24. Henson v. State, 535 N.E. 2d 1189 (Ind. 1989). 25. Frazier, P., and Borgida, E. (1992). "Rape Trauma Syndrome: A Review of Case Law and Psychological Research." Law and Human Behavior, Vol. 16, pg. 301. 26. Ibid. 27. McCord, D. (1985). "Syndromes, Profiles, and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases." Oregon Law Review, Vol 66, pg. 19. 28. Lauderdale, H.J. (1984). "The Admissibility of Expert Testimony on Rape Trauma Syndrome." Journal of Criminal Law and Criminology, Vol. 75, pg. 1366; McCord (1985), Supra note 27.
GLOSSARY   actuarial method based on assigning statistical probabilities of outcomes from combinations of a number of variables that correlate with the behavior at issue; expert's opinion is a general probability based on given variable percentages certification a formal designation of someone to use a professional title based upon education, training, and experience; a statement authorizing an individual to officially practice in a certain profession clinical interview a systematic history-taking and a mental status exam clinical methods based upon observation, history-taking, testing, and diagnosis; relies upon clinical interviews, psychological testing, psycho-social histories, and medical exams DSM Diagnostic and Statistical Manual of Mental Disorders; developed by the American Psychiatric Association to provide mental health practitioners with a diagnostic classification system of mental disorders; includes diagnostic criteria necessary for diagnosing organic brain disorders, personality disorders, childhood disorders, relational disorders, associative disorders, and the like empirical research systematic gathering of information and study of problems in accordance with the agreed upon methodological practices of experimental, quasi-experimental, or qualitative research licensure state granted permission to perform certain functions related to diagnosis, treatment, or dispensing of medication; legal permission to perform a specified function; typically requires an educational degree requirement and a specified number of practical training hours mental status exam an evaluation of an individual's current functioning as revealed through observations and responses to interview questions; often unstructured and highly subjective objective personality generally consist of true-false or check the best answer questions; test scoring is test objective, but not necessarily the interpretation of the results (e.g., MMPI) projective personality based upon the assumption that a person's unconscious motivates and directs daily test thoughts and behavior; to uncover those unconscious motivations, clinicians provide ambiguous stimuli to which the individual can provide responses that might reflect his unconscious; that is, the individual projects unconscious feelings, drives, and motives onto the ambigous stimuli (e.g., Rorschach Inkblot Test) standardized tests tests that have been statistically normed or standardized, permitting clinicians to compare scores of test subjects with the scores of normal individuals or patients with similar disorders syndrome a group or constellation of symptoms that appear together regularly enough to become associated
SUGGESTED READINGS: General Overview National Benchbook on Psychiatric and Psychological Evidence and Testimony. (1998). State Justice Institute. Psychological Assessment Generally Anastasi, A. and Urbina, S. (1997). Psychological Testing, 7th Edition. New York: Prentice-Hall. Shuman, D.W. and Sales, B. (1994). Psychiatric and Psychological Evidence, 2d Edition. Shepard's McGraw-Hill. Assessments of Future Behavior Barefoot v. Estelle, 463 U.S. 880 (1983). McCann, T. (1997). "Risk Assessment and the Prediction of Violent Behavior." Federal Law Review, Vol. 44, pg. 18. Monahan, J. (1997). "Clinical and Actuarial Predictions of Violence." In David L. Faigman et al., (eds.), Modern Scientific Evidence: The Law and Science of Expert Testimony. West Publishing Co. Psychological Syndromes Generally McCord, D. (1987). "Syndromes, Profiles, and Other Mental Exotica: A New Approach to the Admissibility of Nontraditional Psychological Evidence in Criminal Cases." Oregon Law Review, Vol. 66, pg. 19. Myers, M. (1993). "Expert Testimony Describing Psychological Syndromes." Pacific Law Journal, Vol. 24, pg. 1449. Richardson, J.T., Ginsburg, G.P., Gatowski, S.I., and Dobbin, S.A. (1995). "The Problems of Applying Daubert to Psychological Syndrome Evidence." Judicature, Vol. 79, pg. 81. Battered Woman Syndrome Faigman, D.L., and Wright, A. (1997). "The Battered Woman Syndrome in the Age of Science." Arizona Law Review, Vol. 39, pg. 67. Schuller, R., and Vidmar, N. (1992). "Battered Woman Syndrome Evidence in the Courtroom." Law and Human Behavior, Vol. 16, pg. 273. Rape Trauma Syndrome Dobbin, S.A., and Gatowski, S.I. (1998). "The Social Production of Rape Trauma Syndrome as Science and as Evidence." In M.D.A. Freeman and H. Reece, (eds.), Science in Court. London: Dartmouth Press. Frazier, P., and Borgida, E. (1992). "Rape Trauma Syndrome: A Review of Case Law and Psychological Research." Law and Human Behavior, Vol. 16, pg. 293.
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