Civil and sex-offender commitment
10.4 Frequently asked questions in cross-examination .1 Civil commitment
10.4.2 Sex-offender commitment
It is likely that anyone who appears in court as an expert in an SVP hearing will be cross-examined in a thorough manner. They may be subject to impeachment on published mater-ial (Mauet 2005). The more one has written the more fodder there is for cross-examination.
One of the most contentious areas of cross-examination is that of the diagnosis of a para-philia (Frances et al. 2008). If a respondent has a stated criterion for a DSM-IV parapara-philia, a careful cross-examination on the criterion can be stressful. In SVP cases this often becomes even more difficult, particularly when the expert relies upon a diagnosis of Paraphilia Not Otherwise Specified. This may particularly be the case if there is a preferential rape pattern or hebephilia, both of which may be difficult to establish using strict criteria. First and Halon (2008), in a thoughtful discussion, caution not to make the diagnosis of a paraphilia based solely on the sexual offenses themselves.
Similar comments can be made about the second diagnosis frequently used to meet the definition of mental abnormality in SVP cases, that of personality disorder. In court one can realize that at times DSM diagnoses that seem so complete in case conferences can be diffi-cult to justify under searching cross-examination. The lack of thresholds and clarity in the criteria can be particularly difficult to defend. Sometimes it is helpful to have the support of
psychological testing. Further refinement of practice relevant to diagnoses in sex-offender evaluations may be needed given the evolution of a new version of DSM on the horizon at the time of this writing.
Regardless, both sides may raise in cross-examination the large published literature com-paring clinical and actuarial predictions. A skillful cross-examiner can establish that there is a significant amount of evidence suggesting that clinical impression alone is not adequate in predicting sexual violence. Counsel have attempted to point out that the best actuar-ial instruments likely have a ceiling of prediction represented by the area under the curve receiver operating characteristic (AUC-ROC) of 0.79 (personal observation, G. Glancy).
Questions should be expected regarding this ceiling and regarding the fact that these meas-ures are a comparison of the hits versus the misses in prediction.
For example, there may be questions on cross-examination if there are a significant num-ber of misses as to why the individual does not fall in the miss group rather than the hit group. Additionally, scoring of these types of instruments is typically called into question.
It is not uncommon for individual items on particular scales to be questioned in court such that the court deliberations yield scores that differ from those of the evaluator. It can be helpful at the time of finalizing these tests (even the tests that are most established such as the Psychopathy Checklist Revised; Hare 1991) and prior to a court appearance to consult a colleague and spend time going through each item, noting how scores for particular items were justified.
It is likely that handwritten notes or an electronic record of the interview will be in the hands of counsel, so interpretation of various answers may be called into question. The suf-ficiency and quality of collateral information is another issue that will likely be canvassed.
Attorneys in these cases have devoted weeks of their time to the case and can uncover add-itional information. There is some debate about whether examiners should speak to victims, but in any event there is usually someone who has not been accessible for one reason or another and one should expect to be confronted with this.
In an ideal world counsel would have alerted the expert when some critical information has been ruled inadmissible earlier in the course of the hearing, but in the real world this omission is a possibility. Another situation arises when some of the material relied upon in the report has not been entered into evidence at trial such as knowledge about charges that were previously dismissed. Along these lines some of the actuarial tools actually use charges that did not lead to convictions as one of their criteria. Prior experience has shown this can gravely concern lawyers and exposes one to serious potential damage in cross-examination.
Such evidence should be discussed with counsel prior to testimony.
10.5 Conclusions
Commitment hearings for persons with mental illness are often done at a local facility, with the treating psychiatrist acting as the expert witness, though independent examinations may also be conducted in these contexts. Hearings can be contested, but often they are not.
Reports can range from brief affidavits to more formal forensic reports. Sex-offender com-mitment evaluations, in contrast, have evolved to include a complex menu of options for formal assessments, and the cases tend to draw much more rigorous cross-examination, requiring a more detailed report. The mental health professional engaging in civil commit-ment assesscommit-ments for commit-mental illness or sexual offenders should be familiar with existing practices and legal standards and apply known risk factors to an individual in the context
104 Code of Massachusetts Regulations 27.05.
Abel, G. & Wiegel, M. (2009) Visual reaction time: development, theory, empirical evidence, and beyond. In Sex Offenders, Identification, Risk Assessment, Treatment, and Legal Issues, vol. 8, ed. F. M. Saleh, A.
J. Grudzinskas, Jr., J. M. Bradford, & D. J.
Brodsky. New York: Oxford University Press, pp. 101–118.
Abel, G., Becker, J., Cunningham-Rathner, J., et al. (1984) Treatment of Child Molesters.
Atlanta, GA: Emory University School of Medicine.
Abel, G., Huffman, J., Warberg, B., &
Holland, C. l. (1998) Visual reaction time and plethysmography as measures of sexual interest in child molesters. Sexual Abuse: A Journal of Research and Treatment 10(2): 81–95.
Addington v. Texas, 441 US 418, 99 S.Ct. 1804 (1979).
Alaska Statutes 47.30.915(10)(B).
Allen v. Illinois, 478 US 364 (1986).
American Academy of Psychiatry and the Law (2005) Ethics guidelines for the practice of forensic psychiatry. Available at http://www.
aapl.org/ethics.htm, accessed November 6, 2009.
American Psychiatric Association (2000) Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.
Washington, DC: American Psychiatric Press, Inc.
American Psychiatric Association (2003) Practice Guideline for the Assessment and Treatment of Patients with Suicidal Behaviors. Washington, DC: American Psychiatric Press, Inc.
Appelbaum, P. S. (1994) Almost a
Revolution: Mental Health Law and the Limits of Change. New York: Oxford University Press.
Beck, A. T., Kovacs, M. & Weissman, A. (1979) Assessment of suicidal intention: the Scale for Suicide Ideation. Journal of Consulting and Clinical Psychology 47: 343–352.
Boer, D. (2006) Sexual offender risk assessment strategies: is there a convergence of opinion yet? Sex Offender Treatment 1: 1–4.
Boer, D., Hart, S., Kropp, P., & Webster C.
(1997) Manual for Sexual Violence Risk – 20 (SVR20): Professional Guidelines for Assessing Risk of Sexual Violence. Vancouver, BC, Canada: British Columbia Institute Against Family Violence.
Bourget, D. & Bradford, J. M. W. (2008) Evidential basis for the assessment and treatment of sex offenders. Brief Treatment and Crisis Intervention 8: 130–146.
Burt, M. (1980) Cultural myths and supports for rape. Journal of Personality and Social Psychology 38: 217–230.
Check, J. (1988) Hostility toward women: some theoretical considerations. In Violence in Intimate Relationships, ed. G. Russell. Great Neck, NY: PMA Publishing, pp. 29–42.
Commonwealth v. Lamb, 311 N. E.2d 47 (1974).
Deutsch, A. (1945) The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times. New York: Columbia University Press (first published in 1937).
Doren, D. M. (2002) Evaluating Sex Offenders: A Manual for Civil Commitments and Beyond.
Thousand Oaks, CA: Sage Publications, Inc.
Douglas, K. S., Webster, C. D., Eaves, D., Hart, S. D. & Ogloff, J. R. P. (eds.) (2001) HCR-20 Violence Risk Management Companion Guide.
Burnaby, BC, Canada: Mental Health Law and Policy Institute, Simon Fraser University and Louis de la Parte Florida Mental Health Institute, University of South Florida.
of the individual’s current state and unique circumstances. In approaching civil commit-ment evaluations, it is critical for the commit-mental health practitioner to recognize the loss of liberty involved in the confinement for treatment, and the need to balance this interest with the interests of the public at large as a necessary component of these forensic clinical endeavors.
References
Epperson, D., Kaul, J., & Hesselton, D. (1998) Final report of the development of the Minnesota Sex Offender Screening Tool – Revised. Presentation at the 17th Annual Research and Treatment Conference of the Association for the Treatment of Sexual Abusers, Vancouver, BC,
Canada.
Federoff, J. P., Kuban, M., & Bradford, J. M. W.
(2009) In: Sex Offenders: Identification, Risk Assessment, Treatment, and Legal Issues, vol.
7, ed. F. M. Saleh, A. J. Grudzinskas, Jr., J. M.
W. Bradford, & D. Brodsky. New York: Oxford University Press, pp. 89–100.
First M. B. & Halon R. L. (2008) Use of DSM paraphilia diagnoses in sexually violent predator commitment cases. Journal of the American Academy of Psychiatry and the Law 36(4): 443–454.
Foucha v. Louisiana, 504 US 71 (1992).
Frances, A., Sreenivasan, S., & Weinberger L. E.
(2008) Defining mental disorder when it really counts: DSM-IV-TR and SVP/SDP Statutes. Journal of the American Academy of Psychiatry and the Law 36(3):
375–384.
Glancy, G. (2007) Caveat usare: actuarial schemes in real life. Journal of the American Academy of Psychiatry and the Law 34: 272–275.
Glancy, G. & Bradford, J. (2007) The
admissibility of expert evidence in Canada.
Journal of the American Academy of Psychiatry and the Law 35: 350–356.
Glancy, G. & Regehr, C. (2004) Assessment measures for sexual predators. In Evidence Based Practice Manual: Research and Outcome Measures in Health and Human Sciences, ed.
A. Roberts & K. Yeager. New York: Oxford University Press.
Grove, W. & Meehl, P. (1996) Comparative efficiency of informal (subjective impressionistic) and formal (mechanical, algorithmic) prediction procedures: the clinical statistical controversy. Psychology, Public Policy and Law 2: 293–323.
Hanson, R. (1997) The Development of a Brief Actuarial Risk Scale for Sexual Offense Recidivism. (user report) Ottawa: Department
of the Solicitor General.
Hanson, R. & Harris, A. (1998) Dynamic Predictors of Sexual Recidivism. (user report).
Ottawa: Department of the Solicitor General.
Hanson, R. & Thornton D. (2000) Improving risk assessments for sex offenders: a
comparison of three actuarial scales. Law and Human Behaviour 24: 119–136.
Hanson, R. K. & Thornton, D. (2003) Notes on the development of Static-2002. (Corrections Research User Report No. 2003–01.) Ottawa: Department of the Solicitor General of Canada.
Hare, R. (1991) Manual for the Revised Psychopathy Checklist. Toronto: Multihealth Systems.
Heilbrun, K., Marczyk, G. R., & DeMatteo, D.
(2002) Forensic Mental Health Assessment.
New York: Oxford University Press.
Johnson S. & Listiak, A. (1999) The measurement of sexual preference-a preliminary comparison of phallometry and the Abel assessment. The Sex Offender 3(26): 1–19.
Kansas v. Crane, 534 US 407 (2002).
Kansas v. Hendricks, 521 US 346 (1997).
Kansas Statute 59–2946(f)(3).
Krueger, R., Bradford, J., & Glancy, G.
(1998) Report from the Committee on Sex Offenders: The Abel Assessment for Sexual Interest – a brief description. Journal of the American Academy of Psychiatry and the Law 26(2): 277–280.
Lake v. Cameron, 364 F.2d 657 (1966).
Langevin, R. & Paitich, D. (2005) The Clarke Sexual History Questionnaire for Males – Revised. Toronto: Multihealth Systems.
Langevin, R. & Watson, R. (1996) Major factors in the assessment of paraphilias and sex offenders. Journal of Offender Rehabilitation 23: 39–70.
Lessard v. Schmidt, 349 F. Supp. 1078 (ED Wis.
1972).
Letourneau, E. J. (2002) A comparison of objective measures of sexual arousal and interest: visual reaction time and penile
plethysmography. Sexual Abuse: A Journal of Research and Treatment 14(3):
207–223.
Lidz, C. W., Mulvey, E. P., Appelbaum, P. S.,
& Cleveland, S. (1989) Commitment: the consistency of clinicians and the use of legal standards. American Journal of Psychiatry 146: 176–181.
Lin, C. Y. (2003) Ethical Exploration of the least restrictive alternative. Psychiatric Services 54: 866–870.
Massachusetts General Laws, Chapter 123.
Mauet, T. A. (2005) Trials, Strategy, Skills, and the New Power of Persuasion. New York: Aspen Publishers.
Miller, F. G. & Lazowski, L. E. (1999) The Adult SASSI-3 Manual. Springville, IN. The SASSI Institute.
Monahan, J, Steadman, H., Appelbaum, P. S., et al. (2005) Classification of Violence Risk™
(COVR™). Lutz, FL: Psychological Assessment Resources.
Mossman, D. (2006) Another look at interpreting risk categories. Sexual Abuse: A Journal of Research and Treatment 19: 41–63.
Nevada Revised Statutes 433.164.
Norko, M. & Baranoski, M. (2005) The state of contemporary risk assessment. Canadian Journal of Psychiatry 50: 18–26.
O’Connor v. Donaldson, 422 US 563 (1975).
Ohio Revised Code s. 5122.01(B)(4).
Pennsylvania Statutes s. 7310(b).
Pinals, D. A., Tillbrook, C. E., & Mumley, D.
(2009) Violence risk assessment. In Sex Offenders, Identification, Risk Assessment, Treatment, and Legal Issues, ed. F. M. Saleh, A. J. Grudzinskas, Jr., J. M. Bradford, & D. J.
Brodsky. New York: Oxford University Press.
Quinsey, V., Harris, G., Rice, M., & Cormier, C.
(1998a)) Violent Offenders: Appraising and Managing Risk. Washington, DC: American Psychological Association.
Quinsey, V., Khanna, A., & Malcolm, P. (1998b) A retrospective evaluation of the regional treatment sex offender treatment program.
Journal of Interpersonal Violence 13:
621–624.
Scott, L. (1994) Sex offenders. In Critical Issues in Crime and Justice, ed. A. Roberts. Thousand Oaks, CA: Sage Publications,
pp. 61–76.
Selzer, M. (1971) The Michigan Alcohol Screening Test: The quest for a new diagnostic instrument. American Journal of Psychiatry 127: 1653–1658.
Skinner, M. (1982) Drug Abuse Screening Test (DAST-20). Toronto, ON: CAMPH Publications.
South Carolina Code 44–17–580(A)(1).
Specht v. Patterson, 386 US 605 (1967).
Sreenivasan, H., Kirkish, P., Garrick, T., Wineberger, L., & Phenix, A. (2000) Actuarial risk assessment models: a review of critical issues related to violence and sex offender recidivism assessments. Journal of the American Academy of Psychiatry and the Law 28: 438–448.
Stone, A. A. (1984) Law, Psychiatry, and Morality.
Washington, DC: American Psychiatric Press, Inc.
Strasburger, L. H., Gutheil, T. G., & Brodsky, A.
(1997) On wearing two hats: role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry 154: 448–456.
Texas Rules of Evidence S. 509(e) (6).
Thatcher, B. T. & Mossman, D. (2009) Testifying for civil commitment: helping unwilling patients get treatment they need. Current Psychiatry 8: 51–55.
Vincent, G. M., Maney, S. M., & Hart, S. D.
(2009) The use of actuarial risk assessment instruments in sex offenders. In Sex Offenders, Identification, Risk Assessment, Treatment, and Legal Issues ed. F. M. Saleh, A. J. Grudzinskas, Jr., J. M. Bradford, & D. J. Brodsky. New York: Oxford University Press, pp. 70–89.
Washington Code 71.09.010 et seq. (1990).
Webster, C. D., Douglas, K. S., Eaves, D., &
Hart, S. D. (1997) HCR-20: Assessing Risk for Violence (Version 2). Burnaby, BC, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University.
In re Young & Cunningham, 857 P.2d 989 (1993).
Zonana, H. (1999) Dangerous Sex Offenders. A Task Force Report of the American Psychiatric Association. Washington DC: American Psychiatric Association.
Zonana, H. (2000) Sex offender testimony: Junk science of unethical testimony. Journal American Academy Psychiatry and the Law 28: 386–388.
Chapter
145 The Psychiatric Report, ed. Alec Buchanan and Michael A. Norko. Published by Cambridge University Press. © Cambridge University Press 2011.