Aggression and Violent Behavior 18 (2013) 8391

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Aggression and Violent Behavior

Psychological evaluations in the criminal justice system: Basic principles and best practices
Laurence Miller
Plaza Four, Suite 101, 399 Camino Gardens Blvd., Boca Raton, FL 33432, United States

a r t i c l e

i n f o

a b s t r a c t
Forensic psychologists are frequently called upon to conduct evaluations for competency to stand trial, insanity defense, or prediction of future dangerousness. Psychological evaluations for the court typically include record review, clinical examination of the defendant, interview of collaterals, psychological testing, and preparation of a written report. Psychological forensic examiners may also be called upon to testify in court. In rendering their conclusions, forensic examiners should conduct a careful analysis of each individual case, not rely on the mere presence, absence, or severity of any mental disorder to make a legal determination. 2012 Elsevier Ltd. All rights reserved.

Article history: Received 15 August 2012 Received in revised form 23 October 2012 Accepted 23 October 2012 Available online 30 October 2012 Keywords: Competency to stand trial Criminal psychology Expert testimony Forensic psychology Insanity defense Risk assessment

Contents 1. 2. 3. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal forensic psychological evaluations: basic principles . . . . . . . . . . . . . . . . . . . . . . . . . . . Competency to stand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1. Competency criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1. Have an appreciation of the charges against him/her . . . . . . . . . . . . . . . . . . . . . . . 3.1.2. Have an appreciation of the range and nature of possible penalties . . . . . . . . . . . . . . . . 3.1.3. Appreciate the adversarial nature of the legal process . . . . . . . . . . . . . . . . . . . . . . 3.1.4. Have the capacity to disclose to his/her attorney pertinent facts associated with the alleged offenses 3.1.5. Have the capacity to manifest appropriate courtroom behavior . . . . . . . . . . . . . . . . . . 3.1.6. Have the capacity to testify relevantly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2. Competency evaluation outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1. Competent to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2. Incompetent to proceed, with recommendations for measures that will restore competency . . . . 3.2.3. Permanently incompetent to proceed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The insanity defense and diminished capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1. Insanity defense standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2. Diminished capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Predicting future dangerousness and risk factors for future offending . . . . . . . . . . . . . . . . . . . . . . . 5.1. Dimensions of risk for future offending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2. Risk factors for future offending . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1. Impulsivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2. Negative emotionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3. Antisocial attitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.4. Alcohol and substance abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.5. Unstable interpersonal relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.6. Psychosis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 84 84 84 85 85 85 85 85 85 85 85 85 85 86 86 87 87 87 88 88 88 88 88 88 88

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Tel.: +1 561 392 8881. E-mail address: docmilphd@aol.com. 1359-1789/$ see front matter 2012 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.avb.2012.10.005

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5.2.7. Poor treatment compliance . . . . . . . . . Conducting a forensic psychological evaluation . . . . . . . 6.1. Review of records . . . . . . . . . . . . . . . . . 6.2. Clinical interview . . . . . . . . . . . . . . . . . . 6.3. Psychological tests . . . . . . . . . . . . . . . . . 6.4. Collateral data . . . . . . . . . . . . . . . . . . . 6.5. Written report . . . . . . . . . . . . . . . . . . . 7. Testifying in court: recommendations for forensic psychological 7.1. Types of witnesses and testimony . . . . . . . . . . 7.2. Preparing for testimony . . . . . . . . . . . . . . . 7.3. On the stand . . . . . . . . . . . . . . . . . . . . 7.3.1. Attitude . . . . . . . . . . . . . . . . . . 7.3.2. Body language . . . . . . . . . . . . . . . 7.3.3. Communication style . . . . . . . . . . . . 7.4. Cross-examination tricks and traps . . . . . . . . . 7.4.1. Question and answer clarity . . . . . . . . 7.4.2. Constrained answer breakout . . . . . . . . 7.4.3. Ambiguity avoidance . . . . . . . . . . . . 8. Summary and conclusions . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . .

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1. Introduction Psychology and criminal justice are like two twins, separated at birth, who discover later in life that they have been working side-by-side on the same project their entire lives. Both elds are preoccupied with the nuances of human thought, emotion, intention, volition, behavioral expression, and self-control in one case as it applies to clinical diagnosis and treatment, in the other, as it relates to criminal motivation, blameworthiness, and punishment. This article seeks to optimize the productive collaboration of these siblings so that they work, not at cross purposes, but together in the furtherance of justice for all citizens.

2. Criminal forensic psychological evaluations: basic principles Although psychologists may be called upon to conduct evaluations in a wide range of legal contexts, the majority of psychological evaluations for the criminal court will involve three main areas: (1) competency to stand trial; (2) mental status at time of offense, or insanity evaluation; and (3) prediction of dangerousness and risk of future offending. The following points (Miller, 2012) cut across all three types of evaluation. First, the presence, absence, or severity of a diagnosable mental condition does not by itself make a legal determination. That is, just because a young adult defendant suffers from a long history of bipolar mania does not automatically mean she is incompetent to stand trial, as long as she can be shown to appreciate the nature of the charges and possible penalties and assist in her own defense. Just because an elderly defendant has no mental health history does not automatically mean that we should ignore elements of his confused behavior and speech that might point to signs of a beginning dementia. The presence of a young woman's schizophrenic command hallucinations does not automatically constitute the afrmative defense that she was legally insane at the time she murdered her infant child. In all such cases, it is the examining expert's responsibility to assert or refute the clinicalforensic connection between the defendant's mental state and the relevant legal question. Second, any conclusions about the relevance of the defendant's mental state to the legal question at issue must consider the point in time of that issue's relevance. For example, competency to stand trial examinations are typically conducted within several weeks of an upcoming trial or evidentiary hearing; consequently, the court is interested in what the defendant's mental state is currently, not

several months or years ago, when the alleged crime may actually have been committed. Conversely, an insanity evaluation concerns itself with the defendant's mental state precisely at the time the crime was committed; what his or her condition is right now may be relevant for current competency, but not for the insanity defense itself, because the latter entails a retrospective diagnosis. In one of the examples above, because schizophrenia tends to follow an exacerbatingremitting course, and is also frequently affected by the level of the subject's medication compliance, the young mother may have been psychotically delusional and may have believed that the hallucinated voice was God telling her to send her child to Him at the time she killed her offspring; thus, at that time, she may have met the formal criteria for insanity. Now, 12 months later, she has been taking medication and is no longer delusional and, therefore, is sufciently intact to meet the formal criteria for competency to stand trial. Meanwhile, our elderly defendant, despite a few problems with memory and speech, may have been mentally clear enough to be responsible for his actions 18 months ago when he attacked his neighbor; however, now his cognitive capacities have worsened to the point that he can no longer productively assist in his own defense. Therefore, for most defendants, there is likely to be a rough correspondence in mental status between one point in time to another; however, this cannot be merely assumed, but must be carefully assessed. Finally, for prediction of future dangerousness, the psychological examiner must maneuver a veritable clinicalforensic time machine back and forth between past mental status, current functional level, and predicted mental state and behavior on into the future. 3. Competency to stand trial In the criminal justice system, there is a broad spectrum of criminal competencies, covering every step of the legal process. A defendant must be competent to: be arrested, waive Miranda rights, consent to search, enter a plea, stand trial, be sentenced, and be executed, among others. Collectively, these are usually referred to as competency to proceed with the legal matters pending in the case. However, in actual practice, forensic psychologists will perform the overwhelming majority of competency evaluations for competency to stand trial. 3.1. Competency criteria Unlike the insanity defense, which dates back over a century and a half (see below), our present legal conceptualization of competency

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to stand trial stems from a 1960 U.S. Supreme Court decision, Dusky v. United States (1960), in which the Court ruled that, to be competent to stand trial, a defendant must have a sufcient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. Essentially, the defendant must be able to understand the charges against him, appreciate the range of possible penalties, and be able to assist in his own defense. While the precise interpretation of these criminal competency standards varies from jurisdiction to jurisdiction, a certain consensus exists with respect to the basic mental capacities required for an individual to constructively participate in his or her own defense. Note that defendants need not be able to provide detailed, nuanced, and legalistic interpretations of the law; they only need to have a basic a level of understanding sufcient to enable them to participate productively in the legal process. In addition, simple correctable ignorance of the legal system does not equate with incompetency: if the defendant possesses the cognitive capacity to learn and prot from instruction, he or she meets the competency requirements. Often this can be assessed right in the examination session by explaining the relevant legal concept to the defendant and later asking him to relate it back in his own words. Thus, to be competent to stand trial, a defendant must: 3.1.1. Have an appreciation of the charges against him/her He need not know the precise legal terminology, but he must have some understanding of what he is being charged with. They say I used a gun to hold up the liquor store. 3.1.2. Have an appreciation of the range and nature of possible penalties Again, this need not be a legalistic thesis, but the defendant needs to know that he is not going to get a ne and community service for rst-degree murder, or be electrocuted for shoplifting a candy bar. I might have gotten probation on the robbery or up to ve years, but it's another mandatory ve for the gun. 3.1.3. Appreciate the adversarial nature of the legal process This means the defendant understands the roles of the key players in the legal process judge, jury, and especially his defense attorney and the prosecution's attorney. The DA is trying to put me in jail, and my lawyer's trying to prove I didn't do it but I guess it's up to the jury to decide. 3.1.4. Have the capacity to disclose to his/her attorney pertinent facts associated with the alleged offenses Note that the defendant's account of these facts need not be entirely accurate; in fact, they may be completely untrue and at variance with the testimony of multiple witnesses. The defendant, after all, would be expected to give his own self-serving version of events. His account may even be frankly delusional (the President told me to do it through my television set). What matters for this criterion is whether or not the defendant can clearly and consistently articulate and communicate to his attorney his own version of events, no matter what the validity in content, in a coherent and understandable way. 3.1.5. Have the capacity to manifest appropriate courtroom behavior A defendant who is inattentive, disruptive, combative, or otherwise behaviorally inappropriate will not be able to benet from a court trial. Clues to these courtroom behaviors often can be inferred from the defendant's behavior during the competency examination, as well as reports from witnesses who have had the opportunity to observe him prior to the trial. For example, a defendant who continuously dozes off, frequently jumps up from his seat, constantly interrupts the examiner, or repetitively spews foul language during the examination may be equally likely to do these things in court.

3.1.6. Have the capacity to testify relevantly Again, the defendant has the right to give whatever idiosyncratic version of events he can come up with (however, if he knowingly lies under oath, that is perjury, which is a crime), as long as it will be understandable to the trier of fact (the jury in adult court, or the judge in juvenile court or in a bench trial in which an adult defendant has waived his right to a jury in favor of the case being heard by a judge). Clearly, a wide variety of everyday cognitive, temperamental, and behavior skills are required to retain competency, including attention, concentration, memory, expressive and receptive language, reasoning, judgment, frustration-tolerance, and self-control. Many of these features can be discerned within the interaction between the examiner and the defendant, while others are revealed upon specic questioning, and still others come to light as the result of specialized psychological and neuropsychological tests and measures. It is important to realize that the standards of criminal competency do not require the defendant to be a rocket scientist or paragon of mental health, otherwise no one would ever proceed through the legal system. Indeed, in delineating the criteria above, the law sets a relatively high bar for being considered incompetent: whatever the particular diagnosis, to be incompetent, the defendant must be unable to understand the legal process or make legal decisions on his own behalf. These strict criteria account for those cases in the media where apparently crazy defendants are allowed to proceed to trial, or even proceed pro se (on their own behalf, not represented by counsel). However, recall that the presence of a mental illness, in and of itself, does not eliminate criminal competency unless it significantly affects the above criteria. 3.2. Competency evaluation outcomes Following a competency examination, a defendant may be found: 3.2.1. Competent to proceed In this case, the defendant moves to the next step in the legal process, usually the trial. 3.2.2. Incompetent to proceed, with recommendations for measures that will restore competency Recall that mere ignorance of the workings of the legal system is not incompetency; if the defendant can prot from simple instruction, even during the context of the examination (No, the judge doesn't decide guilt or innocence, that's the jury's job. The judge makes sure everybody follows correct legal procedure.), and if the defendant can remember this information and articulate it later, competency is retained. Many jurisdictions have defendants attend a competency education class that acquaints them with the relevant rules of procedure for conducting a trial. In other cases, competency restoration involves therapeutic measures, typically medication, to stabilize the cognitive, emotional, and behavioral status of mentally ill defendants to the point where they meet the criteria for competency. 3.2.3. Permanently incompetent to proceed This will likely be the case where the failure to meet competency criteria stems from a stable, permanent condition (e.g. moderate severe mental retardation), one that is likely to only worsen over time (e.g. Alzheimer's dementia), or one in which all standard forms of treatment have proven ineffective (severe psychotic illness, refractory to all medications). In such cases, the defendant may be released to a secure home or group living environment, or, far more commonly in the case of violent crimes, involuntarily committed until such time it is determined that he or she does not pose a danger to self or others. In many cases, the length of this civil commitment may well exceed the length of the sentence the defendant would have served if he had been convicted.

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4. The insanity defense and diminished capacity Despite isolated media accounts of agrant abuses of the insanity defense letting hard-core criminals go free, in reality, the defense of not guilty by reason of insanity (NGRI), or not guilty by reason of mental disease or defect, or simply the insanity defense, is raised as an afrmative defense in about one out of every 100 felony cases. In about half of these, the defendant is so obviously disturbed that both prosecution and defense agree to adjudicate the case as NGRI without trial. In another quarter of these cases, the two sides come to an agreement during the trial, and so in only one-quarter of 1% of felony cases one in 400 does a TV-style battle of the experts ensue. That is because, as in the case of criminal competencies, a relatively high legal bar is set with regard to a person's criminal responsibility (Miller, 2012; Slobogin, 2006, 2010). 4.1. Insanity defense standards A basic tenet of the American legal system is that, to be justly punished for a crime, a defendant must be proven to: (1) have actually committed the offense in question (actus reus), and (2) have had the mental capacity to have committed the act consciously, knowingly, and purposefully (mens rea). Note that not guilty by reason of insanity is not an excusatory or mitigating factor; it is literally a verdict of not guilty, as if the defendant did not do it at all. That is because the law recognizes a subtle but crucial psychological and philosophical principle of human nature: for an act to be consciously (I know I'm doing it) and purposefully (I decide to do it) committed requires the presence of identity (it is I who am doing it) and agency (it is my free choice to do it, not otherwise compelled). This principle, tacitly or overtly, underlies the major NGRI standards of the United States and most Western societies. The two major principles that guide insanity evaluations in the United States are the M'Naghten test and the American Law Institute (ALI) test; different states employ one or the other standard. The rst goes back to the 1843 case of Daniel M'Naghten, who was acquitted by reason of insanity for killing Edward Drummond, secretary to the British prime minister Sir Robert Peel, during an attempt to assassinate the prime minister himself. At the time, M'Naghten was laboring under the delusion that Peel and the Tory party were involved in a plot to kill him and that he was only defending himself by attacking the prime minister (Allnutt, Samuels, & O'Driscoll, 2007). In response to the public outcry in this case, Queen Victoria ordered the British House of Lords to come up with a more rigorous standard for insanity, which ultimately became the one that bears the defendant's name. According to the M'Naghten test, in order to establish a defense on the grounds of insanity: It must be clearly proved that, at the time of committing an act [at that specic time, no matter what the mental state may have been prior or subsequent to the act], the party accused was laboring under such a defect of reason [his powers of perception and/or cognition were severely impaired], from disease of the mind [there must be an identiable, diagnosable syndrome, recognized by the medical community to account for the mental disturbance], as to not know the nature and quality of the act he was doing [he literally did not know what he was doing], or if he did know it, that he did not know he was doing wrong [he literally could not tell right from wrong based on the prevailing laws and moral standards of his community and culture]. In 1962, the American Law Institute drafted the Model Penal Code test, which came to be known as the ALI test: A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect [same as M'Naghten], he lacks substantial capacity [he may not be totally lacking in capacity, but enough to impair his judgment and/or self-control] either to appreciate the criminality (wrongfulness) of his conduct [same as M'Naghten] or to conform his conduct to the requirements of the law [even if he

understands what he is doing and knows that what he is doing is wrong, he is effectively powerless to control it]. The chief differences between the standards is that M'Naghten is a purely cognitive test, according to which the defendant either did not know what he was doing during the commission of the crime, or else he could not distinguish right from wrong. ALI preserves the rightwrong standard but provides a volitional prong, i.e., even if the defendant understood what he was doing, and that it was wrong, he was substantially powerless to control himself. What both standards share is a fairly strict set of exclusion criteria to invoke a NGRI defense, as well as the requirement for presence of a recognized medical, neurological, or psychiatric disorder to account for the cognitive or volitional impairment. Clinically, there are very few mental disorders whose symptoms are sufciently disabling to produce such an exculpatory level of impairment. Most qualifying syndromes would fall into the category of severe psychosis or some type of organic brain syndrome. The law seems to insist that, if it strives to preserve the autonomy of its citizens through a vigorous defense of their legal rights and competencies, then it expects those citizens to curb the sundry irritations and temptations that are part of the general human condition or products of their own unique personality and developmental history. Just as your right to make a will or decide to undergo a medical procedure is not whisked away the moment you undergo a bout of depression or get stressed out after a car accident, so your responsibility to refrain from unlawfully abusing other people does not automatically evaporate under the pressure of a bad day or the legacy of an unhappy childhood. As a citizen in a free society, you are expected to exert reasonable control over your actions. Beings who cannot do that, such as small children or pets, are not punished like adult humans for their harmful actions, but neither are they afforded legal rights. It is this consideration which accounts for the infrequent use of the insanity defense (Miller, 2012; Slobogin, 2006). If there has been any kind of abuse of the insanity defense by mental health experts, we partly have ourselves to blame. Too often, I have listened to testimony or read the transcripts of clinicians arguing for NGRI on the basis of a diagnosed mental disorder alone. The part of the fault that lies with the lawyers is in not rigorously holding those clinicians to the strict M'Naghten or ALI standards. For example, in subjects with paranoid schizophrenia, the presence of persecutory delusions and command hallucinations may impel them to lash out as a way of protecting themselves, i.e., to launch a preemptive strike. However, does the presence an internal voice which has commanded the subject to commit a violent act automatically remove that subject's free will and responsibility for his actions? In fact, auditory command hallucinations are fairly common among schizophrenic subjects, with up to 50% of patients reporting such phenomena, and which can often be associated with serious harm to both self and others (Barrowcliff & Haddock, 2006; Hall, Lawson, & Wilson, 1981; Hellerstein, Frosch, & Koenigsberg, 1987; Hersh & Borum, 1998; Jones, Huckle, & Tanaghow, 1992; Karp, Whitman, & Convit, 1991; Rogers, Gillis, Turner, & Frise-Smith, 1990, Rogers, Watt, Gray, MacCulloch, & Gournay, 2002). However, far from the common stereotype of schizophrenic subjects slavishly obeying hallucinated commands, most subjects attempt to resist these commands, at least initially (Barrowcliff & Haddock, 2006; Breier & Astrachan, 1984; Goodwin, Alderson, & Rosenthal, 1971; Shore et al., 1989; Thompson et al., 1992). Often the hallucinated commands occur in the form of hostile voices condemning the subject for unspeakable sins, for which the ordered actions constitute a form of penance. The subject is typically in a frightened, agitated state during the hallucinatory episode, which may last for days. He or she may attempt to mask the voices with music or other loud sounds, to drown them out with alcohol or drugs, to scream back at them, or even attempt to bargain with them to allow him to commit a less violent act. When the subject complies with the hallucination, it is

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usually not willingly, but out of desperation to end the relentless persecution. In a few cases, however, some paranoid schizophrenic subjects will describe command hallucinations that are congruent with, and reinforce, their conspiratorial delusional system, and in these cases, compliance may be more voluntary; indeed, the subject, like Daniel M'Naghten, may assert that he had no choice but to act as he did. In such cases, is the subject less blameworthy if he complies with a delusional belief or hallucinated command to stab someone than if he complies with the same command from an actual person or out of a strongly held religious or political conviction? Maybe so, maybe not, but this is a clinicalforensic question to be explored in each individual case, using the prevailing insanity standard as a guide; it does not constitute an automatic exclusion of criminal responsibility based on the mere presence of a mental illness. This is especially problematic in cases where the crime, allegedly committed in a mentally disorders and therefore presumably insane state, is preceded by a certain degree of planning and followed by concealment or evasion of capture, i.e., did the defendant know it was wrong? An obvious question relates to states of intoxication. It will surprise few that overindulgence in alcohol or drugs can result in states of dramatically impaired consciousness that, from a strictly clinical perspective, might pass the bar of impairment per M'Naghten or ALI. It is precisely the ubiquity of such inebriations that impels the law in most cases to arbitrarily and purposefully exclude voluntary intoxication as an afrmative NGRI defense. Otherwise, it would just be too easy to excuse the multifarious acts of mayhem that are abetted and facilitated by overindulgence in substances. However, if you are enjoying a harmless aperitif at your local pub, and someone maliciously slips a chemical adulterant into your drink, sending you into a mindless rage, then the fact that this was an involuntary intoxication may be grounds for a legitimate NGRI defense, provided the severity of impairment meets the criteria of M'Naghten or ALI. 4.2. Diminished capacity At the conclusion of a trial in which the jury has found the defendant guilty, the judge sets a date for the sentencing hearing. In some jurisdictions, the jury who decided on the defendant's guilt also deliberates and determines the sentence. In other jurisdictions, the judge, sometimes utilizing mandated guidelines, determines the sentence and outlines his or her reasoning in a sentencing report that summarizes the facts of the case and provides the rationale for the judge's decision. In cases where there is judicial discretion, the sentencing hearing is the forum in which third parties can present evidence or personal appeals intended to inuence the sentencing decision in a more strict or more lenient direction. Aggravating factors, typically presented by the prosecution's side, may include the defendant's past criminal history (almost always excluded at trial), the particularly cruel and callous manner in which the crime was committed, the lasting impact of the crime on the victim or his/her survivors, the lack of a stable family or social structure that the defendant can return to, and so on. Mitigating factors, typically presented by the defense side, seek to portray the defendant as overall less malevolent and dangerous: he was inuenced by bad peers, his mind was impaired by drugs or alcohol, he did not cause unnecessary harm or injury during the crime, he has a stable job and family structure, and so on. One type of potentially mitigating factor is the claim of diminished capacity, that is, that the defendant's mental state at the time of the crime was sufciently impaired as to lessen his overall culpability for the criminal act. Since the purpose of the sentencing stage is not to determine legal guilt or innocence, as in an insanity defense, issues of mitigation due to diminished capacity typically require a less severe degree of impairment than NGRI. Typically, the same type of evidence is presented that may have been offered to form grounds

for an insanity defense, but that did not meet the strict criteria for NGRI. These may include: history of early childhood abuse; dysfunctional family of origin; susceptibility to undue inuence by antisocial peers; limited intellectual capacity; or any number of medical or mental disorders sufcient to affect one's actions, but not severe enough to meet the NGRI standard. In some jurisdictions, diminished capacity may be asserted ahead of trial to argue for a lesser charge (e.g., reducing a murder charge to manslaughter). 5. Predicting future dangerousness and risk factors for future offending One well-validated principle of criminology is that criminal behavior is not evenly distributed across the population; that is, not everyone is equally likely to commit crimes, even given equivalent circumstances. In fact, research consistently shows that the most seriously violent 5% of the population commits almost 50% of violent crimes, the so-called 5/50 rule. In different geographical locations and with different demographic groups, this may vary somewhat (in some places it may be 6/60 or 7/70), but the fact remains that, across cultures, ethnicities, and nationalities, a small proportion of persistently antisocial offenders commit up to 10 times the rate of crime as their fellow citizens (Bernard, Snipes, & Gerould, 2010; Miller, 2012). Thus, one important role for forensic psychological examiners is to help the courts decide who is more or less likely to reoffend upon release. This question has important implications for probation, parole, and civil commitment decisions. 5.1. Dimensions of risk for future offending Risk status for future offending can be conceptualized along several dimensions (Douglas, Cox, & Webster, 1999; Douglas & Kropp, 2002; Douglas & Skeem, 2005; Kraemer et al., 1997; Monahan et al., 2001; Mulvey, Lidz, Gardner, & Shaw, 1996; Skeem & Mulvey, 2002; Skeem, Mulvey, & Lidz, 2000; Skeem et al., 2004; Webster, Douglas, Belfrage, & Link, 2000). As can be seen, these dimensions will frequently form an overlapping and intersecting matrix in the determination of risk for any given subject. Static risk factors are relatively stable or permanent characteristics of the person or situation that are not likely to change over time. Most biological factors or events in the past would fall into this category, such as a defendant's genetic history, his family upbringing, and any ingrained deciencies in adaption or coping he may have, such as a developmental disorder or learning disability. Dynamic factors are those that are subject to change, depending on the circumstances (e.g., use of intoxicants or availability of weapons). For example, a young man with poor frustration-tolerance and a family history of violence (static risk factor = psychobiological predisposition to violence) is angered by a family member and explodes into rage and intends to kill her, but then remembers that he lent his guns to his cousin for a hunting trip, so he kicks over the TV and storms off to get drunk. Acute or immediate risk factors are those that are immediately extant in the situation (e.g. an irritating provocation, present state of intoxication of the subject, availability of means of escape, goading peers, and absence of credible deterrents). Short-term risk factors generally operate over periods of hours to days to weeks (e.g., developing problems at work or at home, coping with an illness, and worsening nancial difculties). Long-term risk factors operate over spans or weeks to months to years, and include many of the static risk factors discussed above, as well as several dynamic risk factors, such as the general economic climate, the subject's personal socioeconomic status and his state of physical and mental health. These long-term factors may change, but are not likely to undergo major shifts any time soon, since they tend to form a network of entrenched variables surrounding the subject.

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Direct risk factors are often considered to include such variables as abusive childhood, drug addiction, low educational level, joblessness and poverty, bad peers, living in a hostile community environment, and being subject to frequent provocations. However, upon closer study, many of these same variables can be seen to represent proxy risk factors for criminal violence; that is, they are correlated with other risk factors, without necessarily being causal; in many cases, the relationship is bidirectional. For example, there is a well-known correlation between substance abuse and aggression, and it is true that substance intoxication generally lowers the threshold for an impulsive, violent response to a challenge or frustration. However, it is also true that people who are impulsive, frustration-intolerant, and gratuitously violent characteristically seek out substances of abuse as part of their irresponsible, sensation-seeking lifestyle. Similarly, many criminals have been abused as children and now abuse their own offspring. However, did they learn to do this from their parents or did they inherit the genetic predisposition to violent behavior that impels them to aggress against people generally, just as their parent did? Poor education and inconsistent unemployment are certainly associated with criminal behavior, but do these social conditions force desperately broke citizens to turn to crime to survive or are those with the poorest academic potential, the least stable temperament, and the weakest sense of personal responsibility and goal-directedness most likely to nd themselves in the least successful and lowest socioeconomic echelons of society? 5.2. Risk factors for future offending Criminal psychologists have consistently identied a set of risk factors for criminal behavior that appear to apply fairly universally to diverse populations and periods in time (Andrews & Bonta, 2006, 2010; Appelbaum, Robbins, & Monahan, 2000, Appelbaum, Robbins, & Roth, 1999; Barratt, 1994; Caprara, Barbaranelli, & Zimbardo, 1996; Dodge, Bates, & Pettit, 1990; Douglas & Skeem, 2005; Douglas & Webster, 1999; Link & Stueve, 1994; Lipsey, Wilson, Cohen, & Derzon, 1997; McNiel, Eisner, & Binder, 2003; Miller, 1987, 1988, 1990, 1992, 1993, 1994, 1998, 2012; Monahan, 2001, 2002; Monahan et al., 2001; Novaco, 1994; Schwartz et al., 1998; Skeem, Miller, Mulvey, Tiemann, & Monahan, 2005; Swanson, Borum, Swartz, & Monahan, 1996, 2006, Swanson, Holzer, Ganju, & Jono, 1990, Swanson et al., 2006; Webster et al., 2000). 5.2.1. Impulsivity This is the tendency to respond to situations without sufcient reection or consideration of consequences. It is also associated with poor frustration-tolerance and weak self-control. Many of these individuals may be observed to have hair-trigger tempers, to leap before they look. They will often endorse and self-justify these actions, ignoring their own role in perpetuating their interpersonal and legal difculties (The whole system is rigged to keep me down), or in some cases they will actually self-applaud their wanton spontaneity, despite the destructive effects on their lives and those around them (Planning is for chumps: I do what I want when I want). 5.2.2. Negative emotionality Many offenders have a characteristically dour, edgy, anxious, agitated, pessimistic, suspicious, and hostile attitude that makes them highly prone to overreact to minimal provocation. They tend to attribute malign motives to others and to respond accordingly. Consequently, they often nd themselves in conict with multiple people, and will frequently complain that they cannot trust anybody. 5.2.3. Antisocial attitudes Many chronic offenders take great pride in their pugnacious rebel status and do their best to advertise it to the world. They often see

themselves as noble antihero warriors in a hostile environment, deserving of praise (and the status, money, and women that go with it), for being clever enough and strong enough to outwit or pound down rivals and take what they want. 5.2.4. Alcohol and substance abuse As noted above, substance abuse can be a direct factor for criminal violence by lowering inhibitions to antisocial behavior while intoxicated, or a proxy factor (i.e., impulsive, thrill-seeking people who commit violence for kicks are also highly likely to enjoy getting drunk and high). So well-recognized is the connection between alcohol and criminal behavior that virtually all probation and parole agreements mandate abstention from all nonprescription substances, as well as avoidance of establishments where alcohol is served and of persons who are associated with drug use. 5.2.5. Unstable interpersonal relationships Again, this may represent a case of bidirectional inuence. Impulsive, violent, and unstable people are less likely to enter into and remain in long-term relationships. At the same time, the absence of those relationships may deprive them of one last buffer against criminal behavior (Okay, for the sake of my wife and kids, I won't shoot this guy and risk going back to jail). 5.2.6. Psychosis Psychosis by itself is a weak predictor of criminal violence, but when associated with paranoia, delusions of thought control, and command hallucinations the so-called threat/control-override syndrome (Link, Cullen, & Andrews, 1992; Link & Stueve, 1994, Link, Stueve, & Phelan, 1998; Swanson et al., 1996) this can present an especially dangerous situation. 5.2.7. Poor treatment compliance For those at-risk offenders who have been receiving or are in need of treatment, failure to adhere to clinical recommendations or to follow through with treatment is a strong risk factor for recidivistic criminal behavior. As with other court-ordered assessments, in conducting any individual forensic psychological evaluation for risk of future offending or future dangerousness, the mere presence, absence, or severity of any given mental disorder does not determine the outcome of the assessment. The evaluator must carefully consider risk factors that may be static or dynamic, direct or proxy, and short- or long-term. A paranoid psychotic subject with a history of command hallucinations who is nevertheless well-maintained on medication in a supervised group home setting may present a lower risk for future offending than a mildly mentally retarded subject with an alcohol abuse problem who lives by himself in a run-down section of town and is easily inuenced by antisocial peers. Here, as in all forensic psychological evaluations, it is the examining clinician's responsibility to draw a clear bright line between any clinical syndrome the subject may be diagnosed with and the specic legal question to be answered. 6. Conducting a forensic psychological evaluation This section describes the nuts and bolts of carrying out a psychological evaluation in the criminal justice system. The next section presents recommendations for presenting one's ndings in court. To begin with, there are a few major differences between a forensic examination for legal purposes and a clinical examination for treatment purposes. If a patient voluntarily goes to a psychologist for help, the duciary relationship that exists is between doctor and patient and the purpose of any evaluation is to diagnose and effectively treat the patient's disorder or to help them with their problem. The content of the examination and any additional treatment records

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are condential, and the patient is free to terminate the evaluation or treatment process at any time. In the forensic setting, the duciary relationship exists between the examining psychologist and the court and/or the attorney who has retained the expert. The purpose of the examination is to assess those aspects of the defendant's mental status that are relevant to the legal question at issue, not necessarily to treat their disorder, although the examining psychologist may make treatment recommendations as part of his or her conclusions. The results of the exam will typically go to the court or to the attorney who ordered it, although the opposing attorney will usually get a copy of the report as part of the pretrial discovery process. In many cases, it will be the defendant's own attorney who requests the court order in order to document some mental condition that he or she feels will affect the case, e.g. competency to stand trial or an insanity defense. Evaluations for prediction of future dangerousness and reoffending are usually requested by the prosecution as the basis for involuntary civil commitment following a NGRI verdict or when the defendant is found permanently incompetent to stand trial. The exact procedures and measures utilized in the psychological exam will depend of the specic referral question, e.g. competency, insanity, future dangerousness, or other legal issue. However, the foundational components of a forensic psychological evaluation are similar across contexts, and include the following: 6.1. Review of records This will provide the necessary background for the examination and may determine what questions are asked and which measures are used. It is inadvisable for examiners to go into an evaluation blind, but in some cases, full records may not be available until after the examination, in which case the psychologist should do his or her best to put their ndings in context retrospectively. 6.2. Clinical interview This is the backbone of the evaluation and can range from a few minutes to many hours over several days, depending on the nature and complexity of the case and the responsiveness of the subject. The psychologist will ask the defendant to explain his account of events, typically followed-up by a series of clinical and case-relevant questions. The interview assesses the defendant's ability to provide a coherent narrative, his understanding of relevant legal criteria, his medical, academic, employment, legal, and family history, any current signs and symptoms he may be experiencing, and a set of mental status exam questions to assess the defendant's orientation, memory, reasoning, and emotional state. 6.3. Psychological tests The decision to utilize specialized tests and measures will depend on the nature of the examination and the characteristics of the subject. Formal psychometric testing can range from only a few standardized measures in an uncomplicated case, to an extensive, hours-long battery of neuropsychological and personality tests in cases involving possible brain damage, severe psychopathology, or atypical syndromes. 6.4. Collateral data In addition to clinical, legal, and historical records, the examining psychologist may want to interview persons with knowledge that may be relevant to the case, including crime victims and witnesses, arresting ofcers, jail personnel, treating clinicians, family members of the defendant, and so on.

6.5. Written report When the relevant clinical and forensic data have been collected, interpreted, and synthesized, the psychologist will present his or her ndings to the court in the form of a written report. In many cases, this can be the most time-consuming aspect of the evaluation, as the examiner strives for the dual goals of comprehensiveness and clarity. The report will typically contain a review of case data, results of the clinical interview and examination, psychological test ndings, the diagnostic formulation, and addressing of the legal issue at question, e.g. competency, sanity, or risk. 7. Testifying in court: recommendations for forensic psychological expert witnesses After completing the forensic psychological evaluation and submitting the report to the court, the examiner may be subpoenaed to testify about his or her ndings in an evidentiary hearing, most commonly to determine if a defendant meets the criteria for competency to stand trial, or at the trial itself, as part of an insanity defense. (Courtroom testimony may be preceded by a deposition, which is a formal testimony procedure with the expert witness, lawyers from opposing sides, and a court reporter, but no judge, and which takes place outside of a courtroom, often in an attorney's ofce.) In courtroom testimony, the forensic psychological expert witness's task is to ensure that the facts and interpretations he or she presents tell the complete story and that the delivery of these facts makes the expert's testimony clear, credible, and convincing (Barton, 1990; Miller, 2006, 2009; Mogil, 1989; Posey & Wrightsman, 2005; Simon, 1995; Taylor, 1997; Vinson & Davis, 1993). The following are recommendations for doing that. 7.1. Types of witnesses and testimony A fact witness is someone who has personal knowledge of events pertaining to the case and can only testify as to things he or she has personally observed (I saw Fred arguing with his supervisor in the break room). Fact witnesses may not offer opinions, which are interpretations and extrapolations of the available facts (Fred looked mad and this kind of hothead is likely to y off the handle and attack someone). These opinions are the province of the expert witness, who, in a criminal case, is likely to be appointed by the court, although either prosecution or defense may retain an independent expert witness. In presenting your opinion as an expert witness, you may make statements about aspects of the case that you have not personally observed but in which you have specialized knowledge and training your eld that can assist the factnders (judge or jury) in rendering their decision (Fred's diagnosis is consistent with poor impulse control and an increased likelihood of responding to provocations with violence). Although experts are typically allowed more leeway of interpretation than fact witnesses, the content of your testimony may be carefully vetted by the court for admissibility. 7.2. Preparing for testimony Review your notes on the case as many times as necessary so you will be ready for any kind of question; there is no such thing as too much preparation. In most cases, you will probably have one or more meetings, or at least a conference call, with the attorney who retained you to go over your testimony for purposes of clarication and narrative ow, and to get a sense of what you will be asked by both sides. If helpful, use role-play and rehearsal many attorneys do it to make yourself comfortable with verbally articulating your points.

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7.3. On the stand 7.3.1. Attitude To the average juror, a doctor or other professional conveys an air of authority and respect, so use this to your advantage. In the witness box, your general attitude and communication style should be one of condence, but not cockiness. Maintain composure and dignity at all times and act like a professional; avoid either being cowed into submission or baited into an irritated overreaction. Remember that it is not you who will ultimately decide the case for the prosecution or defense; your responsibility is to clearly present the facts, your conclusions, and the evidence that supports them to the fact nders, and then let them do their job. 7.3.2. Body language How you comport yourself is important. Sit up straight and try not to slouch or dget. If there is a microphone in front of you, sit close enough so that you do not have to lean over every time you speak. If you are in a swivel chair, try to avoid twisting and spinning; make a conscious effort to plant your feet rmly on the oor while speaking. Keep your presentation materials neatly organized in front of you, so you can nd documents and exhibits when you need them. 7.3.3. Communication style While testifying in a jury trial, look at the attorney while he or she is questioning you, then switch your eye contact to the jury while answering the question; jurors tend to nd witnesses more credible when they looked straight at us. Be neither overly detached nor overly intense. Open, friendly, and dignied are the words to remember. Speak as clearly, slowly, and concisely as possible to be understood. Keep sentences short and to the point. Maintain a steady voice volume and use a normal conversational tone. Your general attitude toward the jury should convey a sense of collegial respect, that is, you are there to present the facts as you know them to a group of mature adults who you are condent will make the right decision. 7.4. Cross-examination tricks and traps

answer with such phrases, as I believe, I estimate, To the best of my recollection, and so on. If the facts warrant it, be as denite about your answers as possible; if they do not, honestly state that this particular piece of your testimony may not lend itself to precise quantication or may not be a clear perception or recollection, but be rm about what you are sure about. Again, if you do not know the answer to a question, just say you do not know. Jurors will respect and appreciate honest ignorance of a few details far more than a disingenuous attempt to make everything t with your testimony. Finally, remember that most citizens, which include most jurors, want to believe that the people they place their trust in doctors, police ofcers, and others have their best welfare in mind. This means that they will mentally bend over backward to give you the benet of the doubt if you can give them a credible reason to do so. Prepare carefully for your case, be clear and honest in your testimony, maintain dignity and decorum, and in most cases you will walk out of court with the satisfaction of a job well done. 8. Summary and conclusions Forensic psychological evaluations for criminal court are most likely to fall into the categories of: (1) competency to stand trial; (2) not guilty by reason of insanity; and (3) risk assessment, or prediction of dangerousness. In rendering their conclusions, forensic psychological examiners should conduct a careful analysis of each individual case, not simply rely on the presence, absence, or severity of any mental disorder to make a legal determination. Psychological evaluations for the criminal court consist of several key components: (1) record review; (2) clinical interview and examination of the defendant; (3) interview of collaterals; (4) administration of special psychological tests and measures; and (5) preparation of a written report. Guidelines for effective court testimony include: (1) adequate case preparation; (2) appropriate attitude, communication, and body language on the stand; and (3) dealing with challenging crossexamination. References

7.4.1. Question and answer clarity Listen carefully to each of the cross-examining attorney's questions before you respond. If you do not fully understand the question, ask the attorney to repeat or rephrase it. Do not be baited into giving a quick answer; if you need a couple of seconds to compose your thoughts, take them. Answer each question completely, but do not over-elaborate or ramble. If you do not know the answer to the question, state plainly, I don't know. Do not try to bluff your way out of a tricky question. Do not become defensive. Above all, maintain credibility by always being honest. 7.4.2. Constrained answer breakout Attorneys will often phrase questions in a way that constrains your answers in the direction they want you to go. If you feel you cannot honestly answer the question by a simple yes-or-no answer, say so: Sir, if I limit my answer to yes or no, I will not be able to give factual testimony. Is that what you wish me to do? Sometimes, the attorney will voluntarily reword the question. If he or she presses for a yes-or-no answer, at that point either your attorney will probably voice an objection or the judge will usually intervene. The latter may instruct the cross-examining attorney to allow you more leeway in responding, or to rephrase his or her question, or the judge may simply order you to answer the question as it has been asked, in which case that is what you do with a resigned look on your face. 7.4.3. Ambiguity avoidance Another attorney ploy is to phrase questions in such a way as to force you to respond in an ambiguous manner by prefacing your

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