unit 3 try 2 Flashcards
(120 cards)
1
Q
Gideon V. Wainwright
A
stole from pool hall and couldn’t afford lawyer but only used at the time for capital case
Appealed it and they agreed that it should be for all criminal cases but still not guaranteed for less serious cases
2
Q
Discovery
A
sharing of info, usually prosecution because they have the government at their disposal
3
Q
Brady V. Maryland
A
exculpatory evidence
- prosecution must share exculpatory evidence: share anything that strongly suggest that they are not guilty
4
Q
Defense Motions
A
o Separate trials multiple defendants, always in best instance to separate trials
o Sever counts: separate trials for each count- typically not done unless crimes are unrelated
o Change of venue: ask the trail is in a different jurisdiction so jury poils less tainted
o Dismiss on speedy trial grounds
o Dismiss on grounds of selective prosecution: riot where dozens of people have crimes, if they can show that only a certain group are charged then they can try to dismiss the charges because they’re only prosecuting based on race or gender
o Dismiss on double jeopardy grounds (gray area: state vs. gov, civil vs. criminal) :
o Suppress evidence on fourth amendment grounds: Found evidence and didn’t have a warrant
o Suppress a confession/statement by the defendant
o Discovery motions: allowed info from opposite group
o Motion in limine (evidentiary issues): will other evidence be allowed in (past crimes etc.)
5
Q
The decision to set bail
A
- Limited by 8th amendment that says bail should not be excessive
o Pay a certain amount of money so avoid being in jail as they wait for the trial - Bail ensures a defendant will make it to trial
- Those not posing any risk are often ROR – released on their own recognizance when judge thinks they won’t skip
o ROR is as effective as bail (less than 10% skip)
6
Q
Due process model: bail
A
the only purpose of bail is to ensure that the defendant appears in court for trial
o Protect individual rights
o As little as possible so they show up
7
Q
Crime control model: bail
A
bail should be used to protect society
o Protect security
o Keep it high so those who are dangerous are in jail
8
Q
What factors determine bail?
A
o Seriousness of offense
o Past offense
o Social factors: signs that they have ties to the community (school, employed, family etc.)
9
Q
Who usually skips bail?
A
o Those on trial for robbery
o People who the prosecution predicts to skip usually do
17-20% skip
10
Q
Preventive detention
A
the detention of accused persons who pose a risk of flight or dangerousness
o You have to wait in jail no matter what you are willing to pay
Ex. Double citizenship
Can count for time served
11
Q
United states vs. Salerno
A
Mafia boss was kept in preventive detention and tried to appeal it saying that preventive detention is punishment without a trial. However court said it’s not a punishment and meant to protect society
12
Q
Plea bargaining
A
- More than 90% of criminal cases end between arrest and trial – primarily due to plea bargaining
- Charge bargaining: prosecutor drops some of the charges in exchange to a guilty plea for others
o Motivated because they get a lesser charge then if they went to trial and were found guilty - Sentence bargaining: prosecutors recommend reduced sentences in return for guilty pleas
o Prosecution negotiates defense but judge has to accept it
13
Q
Pros to plea bargaining
A
- Admission of guilt helps in rehabilitation
- Relieves the backlog of court cases
- Outcomes are prompt
- Other parties benefit (police: don’t have to look into it, witnesses: don’t have to testify, victims don’t have to relieve the experience etc.)
- Defendant’s cooperation may facilitate the prosecution of others
14
Q
Cons of plea bargaining
A
- Improper sentencing (unequal)
- The process encourages defendants to surrender their constitutional rights
- Prosecutors exert too much power in negotiating guilty pleas
- Innocent defendants may be coerced to plead guilty
15
Q
Bordenkircher V. Hayes
A
- Claimed that increased punishment for not plea bargaining is unconstitutional. Supreme court disagreed, saying “no element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer”
o Threat of increased punishment was trying to discourage him from his constitutional right of a trial and so is unconstitutional, but they disagreed and said he still had the ability to say no – coercion
16
Q
Framing effects on plea bargaining
A
the way decision alternatives are framed (gains or losses) can have an impact on a person’s choice
o More convinced when framed in what we gain
17
Q
Overconfidence bias
A
people tend to be too optimistic about their chances of securing favorable outcomes
18
Q
Reservation price
A
plaintiff - minimum amount they would be willing to take to drop trial, defendant – max amount willing to pay to settle the case
19
Q
Heuristics
A
mental shortcuts that influence judgement and decision-making (self-serving bias, anchoring and adjustment heuristic)
20
Q
Self serving bias
A
Most likely to look at arguments that support or claim instead of what supports the other which may affect settlements
21
Q
anchoring
A
if someone gives us a starting number that anchors us and the other number is based off that so goal is to give number first
22
Q
U.S. vs. Dunnigan 1993
A
added charge due to lying and said that this discourages people to testify on own behalf but courts said enhancement of punishment due to perjury does not infringe on right to testify on own behalf because perjury is intentional lying and so they could be mistaken or lying or if testify for self-defense, so perjury isn’t an automatic if testify on own behalf
23
Q
Advantages to prosecution
A
o Full resources of government
o If using a grand jury they can lay out evidence in unrestricted manner
o First and last to address jury (primacy and recency effect)
24
Q
Advantages to defense
A
o Entitled to discovery (exculpatory evidence) but do not have to turn over incriminating evidence
o Peremptory challenges to choose Jurors: dismiss a juror
o Defendant doesn’t have to take the stand or do anything
o Found not guilty then can’t be tried again
25
Conflict resolution
outcome reflecting attitude change or behavior change that effectively brings an end to conflict in question
26
Conflict settlement
overt conflict brought to end though underlying bases may or may not have been addressed
27
Process control
how much control do parties have over the procedure
28
Decision control
how much control do parties have over the outcome
29
Negotiation: first type of ADR
- Many cases are settled by negotiation, without the assistance of a third party
o Informal: divorce
o Formal: labor contract
- Use of a third-party is appropriate when negotiators believe they can no longer manage on their own
o Once a third-part is involved, it is no longer negotiation
o Benefits: allows cooling down period (lengthens process), bring in different perspective, be more objective
o Limitations/problems: negotiation has failed, conflict
30
Arbitration
- Arbitration is one form of alternative dispute resolution (ADR):
o When the parties agree to binding arbitration, they agree to accept the decision of an arbitrator
o In nonbinding arbitration, if one of the parties is dissatisfied with the arbitrator’s decision, that person may ask that the case be tried before a judge or jury
Similar to bench trial, arbitrator is judge like figure that hears both sides and comes to a conclusion
31
Summary jury trial
- A summary jury trial is like a conventional jury trial, though shorter
o Lawyers tell jurors what the witnesses would say if present
o The lawyers argue the case and try to answer jurors’ questions about the fact (unlike normal trials)
o The judge tells the jury what the law is and tried to answer jurors’ questions about the law
o The jurors then deliberate
Lets each side know how jurors would decide the case to know if they should settle it w/o going to trial
Usually nonbinding
32
Mediation
- When is mediation effective?
o When there’s less conflict
o Used in deforce and custody cases
- Mediation uses a neutral person (the mediator) to work with the litigants and their lawyers to achieve a settlement
o Not going to make a decision but facilitate the two sides coming to an agreement
o The mediator does not have authority to decide the controversy but, rather, acts as a facilitator, meeting with each part in an effect to broker an agreement
33
Emery, Sbarra, & grover (2005) divorce mediation in custody cases
o Parental satisfaction (women V. men)
women were equally satisfied with mediation or litigation
But men were significantly more satisfied with mediation over litigation
* Most men were noncustodial parent
34
Contact w/ custody
30% of noncustodial parents say kids once a week or more for year in mediation, 9% in litigation
* More contact with noncustodial parent when going through mediation = mediation better for noncustodial parent, saw their kid more and more satisfied with the process
o Happened because in mediation have to get the two sides to agree so it’ll be less lopsided
15% of noncustodial parents say kids over once a year in mediation, 39% litigation
35
What form of ADR do people tend to favor?
o Participants (lawyers and parties) favored options that offered them control: like mitigation and negotiation over arbitration or summary jury trial
36
Effective third-party strategies (fisher & Ury, 1981)
o Separate people from problem: don’t base on how likeable each side is but what the best outcome is
o Focus on interests: find out what is important to each party
o Invent options for mutual gain
o Insist on objective criteria: financial security is not objective
37
Third-party stages
- Initial stage: gaining acceptance
o Trustworthy, looking out for their interest, fair, unbiased
- Middle stage: probing for potential compromises
o What is each side willing to give up?
o What is common ground?
o Active listening on what each party wants, not pushing for any particular settlement
- Final stage: push for compromise
o Mediator shouldn’t identify a specific settlement since they are not there to make the decision just get the party to agree
o Tension between what mediator would think is fair and what the two parties agree on
38
Anchoring
starting number thrown out that most adjust from
o Set the tone for negotiation
o Most useful when high uncertainty
Not helpful for things like hospital bills
Usually ask more only then willing to settle for because see agreeableness by coming down/giving up things that can be done when they set it higher then they think
39
Fundamental attribution error
negatively effects negotiation because if someone has harmed us (see it as intentional/other person is evil)
o Attribute harm to the person being bad/evil
40
reactance
if freedom is threatened we want to do it more
Might not like them as much and less willing to settle
41
Impact bias
tend to overestimate the impact that something will have on us
o Interviere because people are less willing to give something up
42
Loss aversion
feel worse about giving something up that we already have compared to giving something up that we may want but don’t have
o Ex. Selling the house is loos aversion compared to alimony which they don’t have yet
o Easier to give up something we already have then what we don’t have yet
43
Cost benefit analysis of going to trail or using ADR
- The probability of winning or losing
- The amount of money to be won or lost
o If sued: settlement will save them more money then going to trail
- Lawyers’ fees and other costs of litigation
- Loss of time by managers and other personnel
o Specific to business: how much time do they put in to testify and how much does it cost me for them to take the time off
- Reputation
o Settlements/ADR are more private
44
Disadvantages to ADR
o Can’t establish legal precedents: no influence on any other cases as opposed to decisions made in a trial
o May not establish clear winners: more likely to result in mutual benefits – can be both good and bad but is one part is really at fault you want there to be a winner
45
major justifications for community alternatives to standard prosecution
o Humanitarian
o Cost: cheaper to treat people in the community than to jail them, especially if it decreases them showing up in the justice system again
o Correlation facilities house inmates who, as a group, have wide-raging rehabilitation needs: community center can specialize for a person’s specific needs compared to jail
46
The sequential intercept model
The sequential intercept model (munetz & griffin, 2006) identifies 5 stages of the criminal justice process at which standard steps could be interrupted and a community treatment alternative substituted
47
The five stages of the sequential intercept model
o Law enforcement and emergency services
The approach known as crisis intervention team (CIT) provides police and other front-line responders with enhanced knowledge and behavioral skills for use when they encounter individuals who may be experiencing a behavioral health crisis
o Post arrest: initial detention/initial hearing and pretrial services
If an individual is arrested, then the second intercept occurs at the “first appearance” before a judge
o Post-initial hearings: jail/prison, courts, forensic evaluations, and commitments
This is a stage at which problem-solving courts (also called specialty courts) such as drug courts, mental health courts, homeless courts, domestic violence courts, and community courts have been developed
* Person has to plead guilty for these courts
o Re-entry from jails, prisons, and forensic hospitalization
o Community corrections and community support
48
Problem solving courts
This approach in which the law is used as a vehicle to improve people’s lives, is called therapeutic jurisprudence
49
Drug courts
o First problem solving courts
o Divert cases from the traditional criminal justice system
o Link drug-addicted offenders with treatment programs and extensive supervision
o In exchange for successful completion of the program, the court may, for example, dismiss the original charge
o Offenders assigned to drug court had a 45.5% recidivism rate, while the comparison group had a 54.5% recidivism rate (Shaffer, 2011)
1/3 recidivism rate
50
Mental health courts
o Deinstitutionalization, the long-term trend of closing mental hospitals and transferring care to community-based mental health treatment facilities
o According to the criminalization hypothesis, a subset of mentally ill offenders committed and were arrested for offenses caused by their untreated symptoms of mental illness
o Treatment plan
o There are two concerns associated with mental health courts
Participants may feel coerced into participating: get a lighter sentence if they go through the problem-solving court instead of a trial which might make them feel pressured to say their guilty
The second concern involves the selection of participants: More likely to go to the courts when they are amenable to treatment so with the less likely to reoffend maybe they wouldn’t anyway because they want to be treated so maybe we aren’t making as big an impact as we think
51
Homeless courts
Homeless courts are designed to reach out to marginalized individuals, address the underlying problems that resulted in their homelessness, and reintegrate these people into society
52
Domestic violence courts
o Different than others in that they typically include some type of punishment as opposed to just treatment
o In recent years, domestic violence courts have coordinated efforts to hold perpetrators accountable, enhance victim and child safety, and promote informed judicial decision making
Can handle multimer issues about violence at the same time: same judge for custody issue, assault, restraining order etc.
Require some type of treatment but they’re not really successful in decreasing domestic violence
53
Community courts
o A neighborhood-focused court that is designed to address local problems such as vandalism, prostitution, shoplifting, vagrancy etc.
Prosecutors given community service to benefit the community
54
Veterans courts
o Launched 2008: newest
o Nearly 500 such courts across the country (national drug court resource center, 2020)
o Specialize in veterans as offenders: substance abuse, mental illnesses
55
Criticisms of problem-solving courts
- Reflect middle-class values and inappropriate paternalistic: life-style choice, not a bad thing
- Lack legitimacy
o Threatening punishment to coerce rehabilitation is unfair
o Because guilt or innocence is not determined by a trial: trial is constitutional right
56
Competence
- Capacity to function meaningfully and knowingly with the court – can they understand the proceedings and what is required of them?
- Criminal procedures should not occur against someone who does not understand the process and purpose
o Not able to understand the law, not really a punishment if they don’t really understand why they’re being punished, unjust to punish someone who doesn’t understand why, and because our legal system allows someone to participate in their own defense and can’t make decisions they need to (pleas) if they aren’t competent
57
Adjudicative competence
- Any officer of the court must bring evidence about defendant’s incompetence, to the court
- Two basic component to adjudicative comp:
o Foundational competence – does the defendant have the capacity to assist counsel
o Decisional competence: does the defendant understand the process and can they make relevant decisions about it
o Dusky standard was usually used for both: “sufficient ability to consult with a degree of understanding and rational and factual understanding pf the proceedings against him.”
58
Raising the issue of competence
- Can be raised anytime
- Typically raised by the defense
- Used to be raised by prosecution
59
Jackson V. Indiana (1972)
those committed for being incompetent to stand trial, cannot be kept institutionalized for more than a reasonable amount of time
Prosecution could lock them away for longer in institution then in jail which is why it switched from prosecution to defense
60
Evaluating competence
- Evaluator: psychologist, criminal social workers
- Mental illness or intellectual disability does not equal incompetence
- Assumption in competence so need to have evidence that they aren’t
- Competency screening test (CST): quickly identifies those who do not need in-depth evaluation
Often used as a precursors
o When I go to court, the lawyer will…
o If Ed’s Lawyer suggest that he plead guilty, he…
o Problems: assumes positive, naive bias is the same as legal competence (someone cynical could prove more incompetent then they actually are); produces a large number of false positives; difficult to score
61
The fitness interview test-revised (FIT-R) is a structured interview
o 16 items in three broad domains (factual knowledge of criminal procedure, appreciation of personal involvement in and importance of the proceedings, and ability to participate in defense)
62
Interdisciplinary fitness interview
semi-structured interview, developed ot be administered with the mental-health professional and the attorney
o Ability in legal areas
o Psychopathological symptoms
63
Macarthur measures of competence
hypothetical situations, the defendants are asked open-ended questions and true/false; takes a long time (2 hours), a shorter test has been developed
o Tell them the right answer if they get it wrong and can they show that they understand that
o Step 2: explain things they don't understand
o Step 3: assess understanding
o Step 4: true/false questions
o Scoring: open-ended, true/false
64
Malingering
faking incompetence
Go more extreme then incompetent people
65
SIRS
structured interview of reported symptoms
o 30 min structured interview
o Asks examinees about symptoms experiencing
o Evaluator knows what systems should look like and so can tell fakes
66
what Evaluators looks at when evaluating competency
o Does the person report rare systems (are you bothered by strange smells wherever you go?)
o Symptom combinations (do you have a need to wash your hands frequently? Is this related to any unique or special powers?)
Don’t usually co-occur so are they pair symptoms that don’t go together
o Improbable or absurd symptoms (do you have any unusual beliefs about automobiles? Do you believe they have their own religion?)
o Severity of symptoms
o Selectivity of symptoms: reporting one but not the other or saying two that don’t go together
o Consistency of symptoms: people who are faking are less consistent
o Reported vs. observed symptoms
Can get in trouble for faking incompetence: charged with obstruction of justice when evidence
67
Medina V. California (1992)
a state can require a defendant to prove that he or she is incompetent (by a preponderance of the evidence): must prove that someone is not, assume they are
68
Cooper v. Oklahoma (1996)
requiring a higher standard of proof (clear and convincing) denies too many claims – signs that he may be incompetent and so they should have stopped the trial since they just need preponderance of evidence to prove he might be not competent
69
Results of competence evaluation
- About 70% assessed are ultimately found competent
- Characteristics of those found incompetent: lowers SVS, mental illnesses, untreated mental illnesses, men
- Those found incompetent and committed, are usually deemed competent within six months
- When treatment does not work, often they are civilly committed (indefinitely) – AVA suggest having a provisional trial for these people (settle the dispute)
70
Riggings V. Nevada (1992)
cannot force medication unless it can be shown that the individual is a harm to self or others without the medication
71
Sells V. U.S. (2003):
Government can administer medication to force competence, but must be (1) medically appropriate, (2) unlikely to have side effects that restrict the trial’s fairness and (3) necessary to further government trial-related interests
o Controversial because it wasn’t a violent crime
72
Faretta v. California (1975)
denied to represent himself and they agreed with him
o The presiding judge must be convinced of adjudicative competence, that the waiver is voluntary, and the waiver is with understanding
o Can’t say bad support if represent themselves
73
Frendak v. united states (1979):
if a defendant is competent to understand the alternative pleas available then he/she can reject insanity plea
74
Ford v. wainwright (1986):
the 8th amendment (cruel and unusual punishment) prohibits the execution of defendants while they are incompetent
75
Difference between competence and insanity
- Insanity says they committed the crime but were insane so they shouldn’t be held accountable for it, competence is state of mind when standing trial/confessing etc.
- Competence says nothing about responsibility for the crime
- Competence refers to mental abilities during the proceedings
- Insanity judges whether or not individual is responsible for their actions/deserves punishment
- Insanity judges mental state at the time of the offense
76
Affirmative defense
the accused must prove that they were not responsible for their actions but they did do the defense
77
Assess mens rae
must prosses a guilty mind at the time of the act (knew what they were doing and intend to do the offence and had control over it – guilty mind)
78
M’Naghten Rule
- Legal standard not a medical one
- A defendant is legally insane if he/she
o Did not know what they were doing, or
o Did not know what they were doing was wrong
- Some jurisdiction add irresistible impulse test: know an act is wrong but cannot stop self from performing it
79
Brawner rule (ali rule)
- Defendant is not responsible for criminal conduct if he ‘at the time of such conduct as a result of mental disease or defect, lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”
- Now used in about 20 states (in an altered form
- Differences from M’naughten
o Acknowledges emotional determinants for action (Brawner does)
o Does not requires a total lack of appreciation of the natural crime
o Includes cognitive and volitional element: does not include if someone can control their behavior
Broader and lower standard
Doesn’t seem to change anything
80
Insanity verdict
- Jurors are more likely to vote not guilty by reason of insanity when they
o Believe the defendant to be seriously mentally ill and not in control of their actions
Usually schizophrenia
o Hear uncontested expert testimony about the defendant’s mental illness
Combative expert witnesses go against this
o Find no logical or evil motive for the defendant’s actions
- If a psychologist concludes “insane”: 83% of the time the charges are dismissed or defendant is found NGRI
- If psychologist concludes “sane”: NGRI words about 2% of the time
o In federal court they are not allowed to make a claim about their insanity
81
Who is insane?
- Previous arrest and convictions (just like most felons)
- Low SES
- Prior hospitalizations or mental illness diagnoses
- Have often been previously found incompetent to stand trial
- These statistics are same for male and female NGRIs
82
Myths about the insanity defense
- Lots of criminals use it (79% of participants believed insanity defense abused, only 21% said it was essential to rights, believe its used in 37% of trials)
o Not true: only 1% someone is pleading nonguilty by reason of insanity
o Think it’s being overused because they get more press attention when plead insanity
- Most are acquitted: incorrect works about 25% of the time
- Those acquitted are released back into society shortly afterwards: not the case, institutionalized for longer period of time then they would have been setenced
- Those found insane are extremely dangerous: not necessarily the case and don’t reoffend at any higher rate
83
Criticism about the insanity defense
- Sends criminals to hospitals and then sets them free
- It is a defense only for the rich since you can pay for an expert witness to get off
o However those found insane have lower SES that proves it wrong
o Case that gives rights to be seen by an expert even if they can’t afford it
- It relies too much on psychiatric experts
o Not really jury making the decision it’s the expert: but that’s why they can’t give an ultimate opinion testimony on it
84
Guilty but mentally ill verdict (GBMI):
hospitalized first and then go to prison
- Doing away with insanity plea
85
Insanity defense reform act (1984)
o Basically uses M’Naughten standard
o Does away with ultimate opinion testimony
o Defendant needs to prove insanity by clear and convincing evidence
Used to be prepondance of evidence (likely they could be) but now they need clear and convincing evidence
86
Separate phases of trial-one for guilt or innocence, and one for state of mind
o However, state of mind in some ways controls guilt, can’t separate state of mind from a judgement of guilt since state of mind is important when determining if they are guilty
87
Competence of juvenile
- Evaluating their understanding of Miranda waivers – (1) consider the totality of the circumstances (age, intelligence, police methods, etc.), and (2) per se approach, assume that juveniles are, by nature, limited and help from an adequate adult is necessary
88
totality approach
some juveniles are competent and some aren’t: use age, intelligence, police methods, experience, etc
89
Per se approach
juveniles are limited in their competency and so need special conditions
90
Fare v. Michael c. (1979)
the supreme court adopted the totality approach as the constitutional standard
o Supreme court said his court wasn’t appealed because he was in the system before and so didn’t need the trusted adult
91
Research on juvenile competence (grisso, 1981)
- 55% of juveniles (compared with 23% of adults) studied incorrectly paraphrased at least one of the four Miranda requirements (remain silent, can be used against you, right to attorney, if you can’t afford one will be provided for you)
- At least one crucial legal vocabulary word was misunderstood by 63% of juveniles (37% of adults)
- Those younger than 15 had significantly poorer comprehension of the function of miranda
- Prior court experience was not related to understanding the vocabulary, but helped with understanding the significance of Miranda
- Those under 15 had lower understanding of miranda rights *
92
Grisso recommends
- Using simplified Miranda warnings for juveniles
- Requiring a screening for understanding before interrogation begins
- Requiring the presence of an adult/guardian during the interrogation
- Requiring an attorney be present during the interrogation
- Grisso emphasizes adolescent’s (1) frequent submission to peer pressure (more easily influenced), (2) higher risk-taking/ideas of invincibility, and (3) seriously short-sighted perspective can all lead them to making bad decisions
o Says use per sa approach
93
Transfer laws
laws that allow juveniles to be tried (and punished) as adults. Look at…
o Seriousness of the offence
o Potential dangerousness
o Sophistication
o Amenability to treatment
94
Argument for keeping them in juvenile and not transfer to adult is
o lack of sophisticated reasoning abilities
o many “grow out of” their deviant behavior without any kind of intervention
o personality is still developing so relying on these measures may be inaccurate
o still, most juveniles stay in juvenile court – most of the cases transferred are of a serious or violent nature
in juvenile justice system always judge trying case
can’t give a mandatory life sentence, must allow judge to have discretion
95
Criticisms of expert witnesses
- weak scientific foundation, unreliable info: always going to have something weak in because judges don’t know how to judge science
- limited relevance, waste of time
- ultimate issues, should be for juries instead of expert witness
- introduce hearsay (used to form opinion): talking about research that they didn’t do so should it be hearsay
- costs money, rich win: it is true that you are not given an expert witness if you can’t afford one
- hard to cross-examine: because attorneys aren’t scientific experts so don’t know for sure what they should be asking
- disagreeing experts reduces esteem for experts: makes the field look bad
- judges don’t have enough training: judges go through training but it’s going to be limited
96
reforms for expert witnesses
- use “opinion” testimony: may have expertise but it might not be a valid testimony
- remove adversarial component of expert testimony: judge calls the expert witness so that they are natural
97
compensatory damages
payment to individual for suffering (emotional and physical)
98
punitive damages
punish the guilty party
99
Laura Schubert and emotional injuries
although they are less reluctant for psychological damages they still don’t treat it the same as physical damages
Was given money but the appeal court reduced the amount and the Texas supreme court reduced I to zero since the exorcism was practicing their religion and so they couldn’t be sued for doing it. If the exorcism would have resulted in physical injuries they could have sued but not for her psychological ones
100
Malingering
- When possibility of getting money
o Report more pain
o Report no changes in pain at 12-month follow up: if receiving treatment usually get better however when they get money they say they’re not getting better
o No difference on treatment compliance and satisfaction
101
How to detect malingering
o How likely will they respond in a social desirable way/how they think they’re supposed to respond
o Symptom validity testing (cog. Deficit example) – are their symptoms similar to others with this illness
Forced choice testing: if you give someone a force choice (pick one or the other) people with sever cog. Impairments usually do 90% or better on forced choice tests so if way low they might be faking it
Unusual pattern of response: look at if they are matching the people with impairments
Unusual patterns of variability: people week to week usually show a pattern
o Attorney see coaching to be necessary, such as coaching to take social desirability tests so that they can fake it better
102
Workers’ compensation
- Submit a claim and can get money without having to have a law suite
- Insurance
- Award based on (1) type duration of injury, (2) salary at time of injury
- Mental/mental: some sort of incident at work results in psychological injury
o Ex. Robbing
- Physical/mental: a physical injury leads to a psychological damage because of it
o Ex. Head injury
103
Workers can seek compensation for…
Injury (psych and physical)
o Cost of treatment
o Lost wages
o Loss of future earnings
104
Hasemann (1997)
experts from each side differed in their evaluations of person
o Repeating hiring by an attorney could bias results
- More faking when evaluated by own side
105
Tort Reform (civil law suit reforms): perception of law suits, especially civil
- The litigation explosion? – people will sue for anything
o No dramatic increase but it has increased over time
o 2008 Tennessee General assembly approved bill that placed cap of 750,000 on damages such as pain and suffering and 500,000 on economic and punitive damages
Corporations like this since usually this much money is from corporations
- Routine tort cases: median verdict in auto cases gets $16,000
o People’s perception of how much money people are getting does not match reality, think it’s way more, probably has to do with press
106
Civil competencies
o Four abilities…
Understand basic info about decision
Apply info to anticipate consequences
Rational thinking to evaluate pros and cons of each outcome
Can they Communicate their decision
107
Medical decisions
- Advance medical directions: who do I want to make decisions for me
o 71% stability over time: over a few years, 71% of people’s decisions about what they want to happen to them stays the same
Conflict happens when they don’t write it down in a legal document
- MacCAT-T: used to determine if someone is competent to make decisions
o Understanding information, apply information, thinking rationally, expressing a choice
Mental ill vs. not mentally ill
* Mentally ill participants were less competent but most of them were still competent
108
Testamentary capacity (banks V. Goodfellow 1870)
o (1) know they are making will, (2) know nature and extent of property, (3) know the people it will go to, (4) manner property will be distributed
o tested if there are drastic changes or if they think someone was influencing them to make a change
o Burden of proof is on those who contest the will: assumed the person is competent
109
Psychological autopsies
- Determine cause of death: NASH system (natural, accidental, suicidal, or homicide)
o May need to know state of mind to figure out cause of death
- Opinion about a deceased person’s state of mind
o Usually done when medical examiners can’t decide between accidental or suicidal
- Sources of information
o Past records: history of depression and other past medical records, journals, messages, conversations
o interviews
110
When making decisions about child custody, judge will consider
o Future best interests of child
some states primary caretaker standard: who ever is primary caretaker has custody
Historically custody awarded to mother (tender-years doctrine)
111
The uniform marriage and divorce act said courts should consider the following for custody:
The wishes of the child
The wishes of the child’s parents
The relationship between the child and the parents, siblings, and significant others who interact with the child
The child’s adjustment at home, school and in the community
* Mental health professional might get involved
The physical and mental health of the parties involved
112
Sole custody:
live with only one parent who has sole decision making authority, but other may have visitation rights
113
Joint custody
both have legal rights, and trade living (but typically one is resident parent
114
Meta-analysis bauserman 1997
Best custody arrangement is joint custody (on average) because tey have more contact with both parents, and parents have more freedom to live their own life
* But sole custody is preferable with abusive parents
115
Evidence on the effects of divorce on children:
o The most significant effects of divorce on children occurs in the first year or two
Most have no negative effects: 75%
o What effects adjustments: Both the well-being of the primary parent and the level of parental conflict are major factors influencing outcomes
Less conflict that the child say made the divorce harder on the child
If a lot of pre-divorce conflict in the marriage, divorce can be a good think
With post-divorce, the more conflict the harder it is on the kids
Change in schooling and housing can impact adjustment because it can cause a loss of relationship
If parent gets in new relationship right away can negatively impact child’s adjustments
116
Addressing parenting skills
- Judges can appoint evaluator, each side may do evaluation, or side can agree to appoint one evaluator
- Interview child, both parents, and others who interact with child, testing (MMPI-2: personality assessment), observation, records
o Bricklin perceptual scales: assessment used for kids to rate how good their parents are at certain skills
- Parental fitness: is this someone who should be caring for the child at all
o Child abuse potential inventory (distress, rigidity, unhappiness, problems with child and self, and others
117
Children in nontraditional families
- Half of all children live in single parent households at some point
- 10 million children live with GLB parents
o Tends to be no difference in psychological adjustment
- Boswell V. Boswell
o Child could not visit the father if his boyfriend was there and father won his appeal and was allowed visitation with his boyfriend there
118
Custody and restraint of those mentally ill and are danger to self or others, or can’t care for selves
o Emergency situation that requires immediate commitment
o Voluntary inpatient: someone checks themselves in, committing is voluntary but getting out is not
o Involuntary inpatient: someone is involuntarily committed with some kind of hearing, risk of danger but haven’t actually done it
o Outpatient: happens in the community and getting some kind of treatment
119
Civil commitment vs. criminal confinement
o Standard of proof for physical case is beyond a reasonale doubt for commitment it’s clear and convincing evidence (involuntary/emergency
o Time: criminal is a period of time while civil they are confined indefenitly
o past vs. future behavior: criminal confinement is looking at past behavior while civil commitment is looking at future behavior
o location: prison vs. hospital
120
Risk assessment
- probability, severity, factors associated with possible future harm
- best prediction when…
o for the short term future
o have info about past behavior in the future environment
o have history
o person belongs to group with high past rates of violation
- good predictors (static: predictors don’t change (history, dynamic: current emotional state – things that predict behavior but do change, risk management: environment/context that might manage risk – place to live, relationships)
o static predictors are best
