Competency to Be Sentenced

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why he or she is being sentenced). Other jurisdictions hold that sentencing is part of the trial, therefore the defendant must meet the more exacting Dusky stan- dard before he or she may be sentenced. Overall, the literature suggests that the competency to be sen- tenced standard is less stringent than the competence to stand trial standard. The purposes behind the guarantee of competency to be sentenced are generally argued to be threefold. First, defendants are guaranteed competency to pro- tect their individual rights. For example, in some cases, the defendant has the right to allocution at sen- tencing. The right of allocution refers to a defendant’s right to speak before the sentence is pronounced in order to address any legal cause why the sentence should not be pronounced or provide mitigating information that may reduce the sentence. Without the mental ability to participate in the proceedings, this right would be meaningless. Second, society has an interest in guaranteeing fair results and the dignity of the trial process. If a defendant does not appear to be a lucid participant in his or her trial and sentenc- ing, the process loses these qualities. Third, to be competent to be sentenced, defendants should com- prehend the duration and severity of the sentence. This understanding is a prerequisite for the sentence to meet its goals of punishment and deterrence from future crime. If defendants cannot rationally compre- hend the reason why they have been sentenced, the punishment cannot have its desired effect on the psy- che or act as a deterrent. If a genuine doubt concerning the defendant’s competency to be sentenced arises, the defense, the prosecution, or the judge may raise the issue. If there is sufficient evidence that the defendant’s competency is questionable, the judge may order an examination by a mental health professional, such as a psycholo- gist or a psychiatrist. When the evaluation is com- pleted, the expert provides an opinion to the court in the form of a report and, possibly, testimony. The judge makes a decision regarding the competency of the defendant. If the defendant is found to be compe- tent, the sentencing proceeds. If the defendant is found to be not competent, he or she is sent for treat- ment to restore competency before sentencing. Psychologists have researched the issue of compe- tency to stand trial, developed assessment strategies, and implemented treatment approaches to restore indi- viduals’overall competence. The defendant’s cognitive functioning is of central importance in evaluating any form of competence. Similarly, a defendant’s ability to communicate mitigating factors effectively to his or her attorney is essential. Many measures have aided in the evaluation of an individual’s overall competency. These include the Competency Screening Test (CST), the Competency Assessment Instrument (CAI), the Georgia Court Competency Test (GCCT–MSH), the Interdisciplinary Fitness Interview (IFI), the Fitness Interview Test (FIT–R), the MacArthur Competence Assessment Tool–Criminal Adjudication (MacCAT– CA), and the Evaluation of Competence to Stand Trial–Revised (ECST–R). These measures provide a clinician with information relevant to an individual’s competence to stand trial; however, there are minimal assessment guidelines and no accepted measures to evaluate competence to be sentenced. A comprehen- sive evaluation should be conducted to assess a defen- dant’s intellect, his or her personality, and any underlying psychopathology, in addition to the basic competency criteria. As mentioned above, if a defen- dant is found not competent to be sentenced, the ques- tion of possible restoration to competence must be dealt with. Restoration to competence may achieved by the use of psycho-education, medication, or indi- vidual therapy. Individuals with mental retardation or metal ill- ness, juveniles, and people suffering from dementia are at higher risk of being found incompetent to be sentenced. These groups are identified as “at risk” due to limitations in rational understanding and abstract thinking. By definition, individuals with mental retar- dation have below-average intellectual abilities and impaired adaptive behavior, which affect all aspects of competency. Juveniles are labeled at risk because they are considered developmentally and psychosocially immature. Children typically develop higher-order processing and reasoning abilities as they mature. Although there is no exact age at which children develop this reasoning ability, the idea that juvenile offenders should be treated differently from adult offenders has long been an accepted legal premise. Research has focused on determining whether a juve- nile possesses the minimal reasoning ability required to be found legally competent. The findings indicate that juveniles who lack developmental and psychoso- cial maturity (a) may not fully appreciate the long- term consequences of their decisions, (b) may yield to peer influence, and © may minimize the ramifica- tions and risk of being found guilty. These limitations would lead to impaired decision making. People with Competency to Be Sentenced ———117 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 117 mental illness and/or dementia, on the other hand, sometimes lose their ability to reason abstractly and to understand legal processes. Kimberly A. Larson, Michael P. Griffin, and J. Gregory Olley See also Competence Assessment for Standing Trial for Defendants With Mental Retardation (CAST*MR); Competency, Restoration of; Competency Assessment Instrument (CAI); Competency for Execution; Competency Screening Test (CST); Competency to Stand Trial; Competency to Waive Appeals; Competency to Waive Counsel (Proceed Pro Se) Further Readings Cunningham, M. D., & Goldstein, A. M. (2003). Sentencing determinations in death penalty cases. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 407–436.). Hoboken, NJ: Wiley. Dusky v. United States , 362 U.S. 402 (1960). Melton, G. G., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. C OMPETENCY TO C ONFESS Competency to confess refers to a suspect’s ability to make a knowing, intelligent, and voluntary waiver of the Miranda warnings at the time of police question- ing. Confessions that are given after a suspect waives his or her Miranda rights are sometimes challenged on the basis that the suspect was not competent to confess, meaning that the suspect was not capable of making a knowing, intelligent, and voluntary waiver of the Miranda rights and therefore could not have under- stood, appreciated, and willingly waived those rights. A confession that is successfully challenged cannot be used in court against the defendant. Assessment of competency is therefore performed after the confes- sion is given. This assessment is performed by a men- tal health professional (often a forensic psychologist) and takes into account the defendant’s ability at the time of the interrogation to understand the warnings and make intelligent use of them and the psychologi- cal factors that could be relevant to the court in assess- ing the voluntariness of the waiver. In the 1966 Miranda v. Arizona case, the U.S. Supreme Court ruled that any statement arising from the custodial interrogation of a suspect would be pre- sumed involuntary and thus inadmissible unless the police provide the suspect with four warnings: (1) the suspect has the right to remain silent, (2) any state- ments made by the suspect can be used in court against him or her, (3) the suspect has the right to the presence of an attorney before and during the interro- gation, and (4) an attorney will be provided free of charge if the suspect does not have the ability to pay for one. Many jurisdictions have added a fifth prong, that these rights can be invoked at any time during the interrogation process and that once they are invoked, the questioning must cease until an attorney is present. The U.S. Supreme Court in the Miranda decision opined that these rights must be waived knowingly, intelligently , and voluntarily. Case law has clarified the meaning of these three prongs. The term competency to confess is a misnomer because it explicitly refers to one’s ability to understand and appreciate the significance of the Miranda rights at the time of police questioning. It also refers to the psy- chological characteristics of a defendant that have an impact on the voluntariness of the Miranda waiver. Thus, this competency differs from other competencies (e.g., competency to stand trial, competency to consent to treatment) in that the mental health professional must examine the individual’s competence at some point in the past. The court is not concerned with current or future competency with respect to Miranda warnings; rather, the court is concerned about whether the defen- dant was able to make a knowing and intelligent waiver at the time he or she was questioned by the police. Also, not all three prongs needed to effectuate a valid Miranda waiver can be addressed completely by the mental health professional. Case law clearly indi- cates that for a waiver of rights to be deemed involun- tary, there must be a showing of police misconduct. It has to be shown that the police were unduly coercive and overstepped their bounds in extracting a Miranda waiver. It is beyond the scope of a mental health expert’s expertise to determine whether and how that threshold was crossed. Yet psychological expertise can be useful to the court in determining whether a suspect possesses psychological characteristics that increase his or her susceptibility to the effects of police conduct. Such characteristics include interrog- ative suggestibility, compliance, intellectual function- ing, anxiety, memory, and sleep deprivation. There are 118 ———Competency to Confess C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 118 a number of specialized tests that can assist the clini- cian in evaluating the psychological factors relevant to the voluntary prong of the Miranda waiver. It is within the realm of the mental health profes- sional’s expertise to opine directly on the knowing and intelligent prongs of the Miranda waiver. A knowing waiver of rights is defined as the individual’s under- standing or comprehension of the rights combined with the manner in which the rights were administered by law enforcement. For example, one would expect different levels of understanding in illiterate suspects if they were required to read the rights on their own ver- sus having the rights read to them. An intelligent waiver of rights is different from a knowing waiver of rights. The former involves knowledge of the rights, decision-making capacity, and appreciation of the sig- nificance of the rights based on one’s knowledge of how the legal system works. Thus, while suspects may understand that they have a right to defense counsel, an intelligent waiver of the right to counsel cannot be made if they erroneously believe that a defense attor- ney would only work on behalf of innocent defendants. Evaluation of a defendant’s competency to confess requires a comprehensive forensic evaluation. An extensive clinical history, examination of mental status, and record review are generally combined with psycho- logical testing to assess a defendant’s cognitive and emotional functioning. The focus is directly on the psy- chological functioning that would have been displayed at the time of the police questioning. Given that the evaluation must be functionally based—that is, clini- cally relevant data should be integrated with the appro- priate legal criteria (i.e., knowing, intelligent, and voluntary), the mental health professional must specif- ically assess behavior relevant to the legal criteria. Thomas Grisso developed four psychological tests to aid in the assessment of a juvenile’s or an adult’s abil- ity to make a knowing and intelligent waiver of rights. Although these tests (like any other test) are subject to misuse, if used properly as part of a comprehensive competency assessment, they can provide useful data to the clinician and, ultimately, to the trier of fact. The assessment of competency to confess must also take into consideration the complexity of the wording of the rights. In general, the Miranda warnings are written at approximately the seventh-grade level of reading comprehension. Yet the complexity of the wording of the rights varies greatly within and between jurisdictions. Research has shown that 23% of adults do not understand at least one of the four Miranda rights. Moreover, 70% of adult nonoffenders and 43% of adult offenders erroneously believe that the right to remain silent is revokable by the judge. Juveniles aged 14 years and below do not understand their rights as well as older juveniles and adults. With juveniles and adults, intelligence is positively correlated with Miranda comprehension. I. Bruce Frumkin See also Capacity to Waive Rights; Confession Evidence; Grisso’s Instruments for Assessing Understanding and Appreciation of Miranda Rights; Reid Technique for Interrogations Further Readings Cloud, M., Shepherd, G., Barkoff, A., & Shur, J. (2002). Words without meaning: The constitution, confessions, and mentally retarded suspects. University of Chicago Law Review, 69, 495–624. Frumkin, I. B. (2007). Psychological evaluation in Miranda waiver and confession cases. In R. Denny & J. Sullivan (Eds.), Clinical neuropsychology in the criminal forensic setting . New York: Guilford Press. Grisso, T. (2003). Evaluating competencies: Forensic assessment and instruments (2nd ed.). New York: Kluwer Academic. Miranda v. Arizona , 384 U.S. 436 (1966). C OMPETENCY TO STAND TRIAL The legal standard for competency to stand trial in the United States was articulated by the U.S. Supreme Court in Dusky v. United States (1960), wherein the Court determined that a defendant must have “suffi- cient present ability to consult with his lawyer with a reasonable degree of rational understanding” and a “rational as well as factual understanding of the pro- ceedings against him” (p. 402). Mental health profes- sionals are called on to assist the courts by evaluating defendants’ competency to stand trial, often aided by assessment tools designed specifically for this pur- pose, and by providing treatment for the restoration of competency in incompetent defendants. Psychological research in this area has examined the reliability of competency assessments, the characteristics of defen- dants deemed incompetent to stand trial, and the char- acteristics associated with restorability. Competency to Stand Trial ———119 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 119 Competency to stand trial is the most common type of criminal forensic evaluation, with approximately 60,000 evaluations conducted annually in the United States. That is, between 2% and 8% of all felony defendants are referred for evaluations of competency to stand trial each year. The issue at stake in an evalu- ation of competency to stand trial is the defendant’s current mental functioning; this is often confused with criminal responsibility (insanity), wherein the issue at stake is the defendant’s mental state at the time of the offense. The prohibition against trying an incompetent defendant dates back to at least the 17th century and serves the dual purpose of ensuring a fair trial for the defendant and preserving the dignity of the adversarial process. Competency to stand trial is but one type of com- petency that falls under the larger, more encompassing headings of adjudicative competence or competency to proceed. The issue of a defendant’s competence may be raised at any point in the proceedings before a verdict is rendered; thus, competency to confess (waive Miranda rights), competency to plead guilty, competency to waive the right to counsel, and compe- tency to stand trial all fall under the umbrella of adju- dicative competence or competency to proceed. Furthermore, the U.S. Supreme Court in Godinez v. Moran (1993) indicated that the standards for the var- ious types of criminal competencies (pleading guilty, waiving counsel, and standing trial) were to be the same. Thus, in light of the decision in Godinez as well as the fact that upward of 90% of criminal cases are resolved through the plea bargaining process rather than by going to trial per se, evaluations of compe- tency to stand trial necessarily include evaluation of the defendant’s ability to plead guilty and to engage in the plea bargaining process. The term competency to stand trial has begun to be replaced by the term com- petency to proceed in some states, but for the purpose of remaining true to the literature and commentary that have developed up to this point, the term compe- tency to stand trial is used in this entry. Legal Standard and Procedures Since 1960, every state has adopted the Dusky standard either verbatim or with minor variations in the word- ing. In addition, some states have elaborated their competency statutes to include articulated standards wherein various specific factors that must be addressed by evaluators in a competency evaluation are set out. The issue of a defendant’s competency to stand trial may be raised by any party to the proceedings (the defense, the prosecution, or the court more gener- ally), although in the vast majority of cases the issue is raised by the defense. A formal inquiry into a defen- dant’s competency to stand trial must take place if a “bona fide doubt” about his or her competency exists, as all defendants are presumed competent. Competency evaluations historically occurred in inpatient settings; however, the majority of competency evaluations now occur in community-based settings, including mental health centers, private practice offices, and jails. Research has indicated that approximately 20% (although this varies by jurisdiction) of all defen- dants referred for competency evaluation are deemed incompetent; thus, the vast majority of referred defen- dants are competent to stand trial. Various explanations for the high rate of competence have been put forth, including defense attorneys using the referrals as “fish- ing expeditions” to attempt to gather information that may be helpful in their defense or to investigate the fea- sibility of a later insanity plea. Others suggest that these referrals are made to prolong the amount of time it takes to get to trial, thus giving the defense (or perhaps the prosecution) more time to prepare the case; to have a mentally ill defendant hospitalized or treated when he or she will not voluntarily undergo hospitalization or treatment; or so that prosecutors and/or defense attor- neys may guard against the possibility of a later appeal on the grounds that an individual with a known history of mental illness was allowed to proceed to trial under the presumption of competence. It is unclear how often the aforementioned reasons serve as the primary ratio- nale for requesting a competency evaluation. In addi- tion, it is important to acknowledge that the procedures used in various jurisdictions may account for the differ- ing rates of incompetence. For example, in jurisdictions that use a screening process to eliminate those who are clearly competent from further evaluation, a higher rate of incompetence would be expected among defendants who undergo a formal evaluation of competency to stand trial. Depending on the jurisdiction, one or more mental health professionals will evaluate a defendant’s com- petency to stand trial and submit the results of this evaluation to the court in the form of a written report. A hearing on the issue of competency may take place; however, in most instances, this does not occur. Instead, the court usually renders a decision regarding the defendant’s competency on the basis of the mental 120 ———Competency to Stand Trial C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 120 health professional’s report. Although the determina- tion of a defendant’s competency status is a legal deci- sion, research has shown that the courts typically concur with the opinion of mental health profession- als. In fact, some research has indicated rates of agree- ment between the court and the evaluator to be greater than 95%. Defendants who are found competent by the court will proceed with their case, whereas those who are found incompetent will, in most instances, be ordered by the court to undergo treatment for the purpose of restoration of competency. Treatment for restoring a defendant’s competency to stand trial most often occurs on an inpatient basis, although some states have moved toward a “least-restrictive” alternative, which allows for the possibility of outpatient treat- ment. Generally, most defendants are restored to com- petency within a 1-year period. Once restored, the defendant resumes with his or her legal proceedings. Those defendants who cannot be restored to compe- tency will generally have their charges dismissed or nolle processed. Until the 1970s, incompetent defendants were often committed to lengthy periods of confinement in state maximum-security units, even though they were neither tried nor convicted of a crime. In 1972, the U.S. Supreme Court in the case of Jackson v. Indiana decided that incompetent individuals could not be held for “more than a reasonable period of time nec- essary to determine whether there is a substantial probability” that they will regain competency in the foreseeable future (p. 738). The Court, however, did not give any indication as to what might be considered a “reasonable” period of time. As a result of the Jackson decision, many states amended their statutes to include either language similar to Jackson or spe- cific timelines for determining whether someone might be restored to competency. With respect to the issue of medication, the U.S. Supreme Court in a series of decisions has indicated that a defendant may be forcibly medicated to restore competency under certain conditions, including an “overriding justification and a determination of medical appropriateness” ( Riggins v. Nevada , 1992); its being essential to the safety of the defendant or the safety of others ( Riggins v. Nevada , 1992; Washington v. Harper , 1990); or a finding that the medication is likely to restore competency and will not result in side effects that might affect a defendant’s ability to assist counsel and alternative and less intrusive methods are not available ( Sell v. United States , 2003). Thus, for the purpose of restoring competency, it seems that the right of a defendant to refuse medication is significantly lim- ited. In this instance, it appears that the government’s interest in trying a competent defendant carries more weight than a defendant’s right to refuse medication. C C o o m m p p e e t t e e n n c c y y E E v v a a l l u u a a t t i i o o n n At its most basic, the evaluation of a defendant’s competency to stand trial involves an assessment of the psycholegal abilities required of the defendant (as per the relevant legal statutes of the jurisdiction), an assessment of the current mental status of the defen- dant, and a determination of whether a linkage exists between any psycholegal deficits that may be evident and any mental disease or defect that may exist. Thus, a mental disease or defect serves as a prerequisite for a determination of incompetency, and any deficits in the relevant psycholegal abilities must be linked to this mental disease or defect. In addition, the evalua- tion of these components must occur within the spe- cific context of the defendant’s particular case. That is, the complexities of the particular case must be con- sidered as well as, and in conjunction with, the spe- cific abilities of the particular defendant. Numerous forensic assessment instruments have been developed to aid in the evaluation of competency to stand trial. A full review of these instruments is beyond the scope of this entry, but the interested reader is referred to the cross-references listed below for more information. The instruments that have been developed range from simple checklists with little to no empirical support to detailed measures that have been developed and investigated with the highest level of scientific rigor. Some tools, such as the Fitness Interview Test–Revised, can be used either as a screen to help systematically identify individuals in need of further evaluation or as a means of structuring a more detailed competency evaluation. Others, such as the MacArthur Competence Assessment Tool–Criminal Adjudication or the Evaluation of Competence to Stand Trial–Revised, provide for a detailed assess- ment of competency-related abilities, to be used in conjunction with additional assessment with respect to the defendant’s particular case. In addition, other instruments have been developed for use with specific populations of defendants, such as the Competence Assessment for Standing Trial for Defendants With Mental Retardation. Competency to Stand Trial ———121 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 121 Research has demonstrated that there is generally good agreement among evaluators with respect to overall decisions regarding competency; however, examiner agreement falls significantly when specific psycholegal deficits are examined. Research has indi- cated that examiner agreement reaches 80% or higher for overall decisions regarding competency but that it falls to about 25% across a series of competency domains. Of course, it is the more difficult cases, the gray-area cases in which competency is truly a serious question, that are of the greatest concern and for which no research is available. Given the low base rate of incompetence, high levels of agreement among examiners on the issue of a defen- dant’s overall competence are to be expected; however, high levels of reliability do not ensure that valid deci- sions are being made. Validity is difficult to assess because of the criterion problem; that is, there is no true criterion for competency and thus no way to determine whether decisions that have been made about a defen- dant’s competency are accurate. It is impossible to fully assess predictive validity as only those defendants who are considered competent are allowed to proceed; thus, we have no way of knowing whether a defendant who was considered incompetent was actually unable to per- form the abilities required of him or her. C C h h a a r r a a c c t t e e r r i i s s t t i i c c s s o o f f I I n n c c o o m m p p e e t t e e n n t t D D e e f f e e n n d d a a n n t t s s The vast majority of the research that has been con- ducted on competency to stand trial has examined the characteristics of and differences between competent and incompetent defendants. The constellation of characteristics held in common by defendants referred for evaluations of competency include being male, single, or unemployed; living alone; having a history of contact with both the criminal justice and the men- tal health systems; and being diagnosed with a major mental disorder. The individuals who are found incompetent to stand trial generally show the following characteristics: poor performance on psychological tests that measure a defendant’s legally relevant functional capacities, a diagnosis of psychosis, and psychiatric symptoms indicative of severe psychopathology. In addition, diagnoses of schizophrenia, mental retardation, mood disorders, and organic brain disorders have all been found to be strong predictors of incompetency. Direct comparisons of competent and incompetent defendants reveal that incompetent defendants are significantly more likely to be single, unemployed, charged with a minor offense, and diagnosed with a psychotic disorder and significantly less likely to be charged with a violent crime and to have substance use disorders than are competent defendants. C C o o m m p p e e t t e e n n c c y y R R e e s s t t o o r r a a t t i i o o n n In light of the Supreme Court’s decision in Jackson (discussed above), most jurisdictions now require evaluators to provide an opinion regarding the restor- ability of a defendant who is considered incompetent to stand trial. In general, evaluators are usually required to provide information to the court on whether the defendant can be restored to competency (or the probability of restoration occurring) and what the available treatment options are for the defendant. In addition, some jurisdictions require the evaluator to provide an estimate of the time frame required for restoration. Generally, many defendants are restored to competency within 6 months, and the vast majority are restored within a 1-year period. Although a full discussion of competency restora- tion is beyond the scope of this entry, some research has examined the characteristics of restorable and nonre- storable incompetent defendants. In general, this research has indicated that those defendants considered to be restorable tend to be younger and are more likely to have a previous criminal history and a nonpsychotic diagnosis than their unrestorable counterparts. Patricia A. Zapf and Virginia G. Cooper See also Competency, Foundational and Decisional; Competency, Restoration of; Competency Assessment Instrument (CAI); Competency Screening Test (CST); Competency to Waive Counsel (Proceed Pro Se); Evaluation of Competence to Stand Trial–Revised (ECST–R); Fitness Interview Test–Revised (FIT–R); Georgia Court Competence Test (GCCT); Interdisciplinary Fitness Interview (IFI); MacArthur Competence Assessment Tool for Criminal Adjudication (MacCAT–CA) Further Readings Dusky v. United States , 362 U.S. 402 (1960). Godinez v. Moran, 509, U.S. 389 (1993). Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic/Plenum. Jackson v. Indiana , 406 U.S. 715 (1972). 122 ———Competency to Stand Trial C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 122 Melton, G. B., Petrila, J., Poythress, N. G., & Slogobin, C. (1997). Psychological valuations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press. Riggins v. Nevada , 504 U.S. 127 (1992). Roesch, R., & Golding, S. L. (1980). Competency to stand trial. Chicago: University of Illinois Press. Roesch, R., Zapf, P. A., Golding, S. L., & Skeem, J. L. (1999). Defining and assessing competency to stand trial. In A. K. Hess & I. B Weiner (Eds.), The handbook of forensic psychology (2nd ed., pp. 327–349). New York: Wiley. Sell v. United States , 539 U.S. 166 (2003). Washington v. Harper , 494 U.S. 210 (1990). Zapf, P. A., & Roesch, R. (2006). Competency to stand trial: A guide for evaluators. In I. B. Weiner & A. K. Hess (Eds.), The handbook of forensic psychology (3rd ed., pp. 305–331). New York: Wiley. Zapf, P. A., Viljoen, J. L., Whittemore, K. E., Poythress, N. G., & Roesch, R. (2002). Competency: Past, present, and future. In J. R. P. Ogloff (Ed.), Taking psychology and law into the twenty first century (pp. 171–198). Kluwer Academic/Plenum. C OMPETENCY TO W AIVE A PPEALS Appellate review of a felony conviction is a constitu- tional right. The validity of a relinquishment of this or any other constitutional right rests on whether the waiver is made knowingly, intelligently, and volun- tarily. There are two distinct arenas where waivers of appeals are encountered: plea bargains in criminal cases and death-sentenced inmates “volunteering” for execution. Though waivers of appellate review in plea bargains are legally complex, they are not philo- sophically, ethically, or forensically problematic. This is largely because the defendant makes an elec- tion that, viewed from both subjective and external perspectives, is in his self-interest. A waiver of appel- late review by a death-sentenced inmate, however, is fraught with philosophical and ethical dilemmas, as well as forensic evaluation ambiguities. This situa- tion is compounded because the U.S. Supreme Court has not articulated clear standards or procedures for evaluation of the competency of death-sentenced inmates to waive appellate review. Accordingly, forensic evaluations of this issue by mental health professionals are at best comprehensive and highly descriptive in nature. Waiver of Appeals in Plea Bargains Depending on the jurisdiction, a waiver of the right to appellate review may be required of a defendant as a condition for a plea bargain. A waiver under these cir- cumstances can be viewed as analogous to the defen- dant entering into a contract that is perceived to be most beneficial (or least onerous) to the defendant, as well as contributing to a more efficient administration of justice. Critics, however, note that a waiver of appeals as a precondition for securing a plea bargain is inherently coercive. Furthermore, such a waiver is invariably unknowing, as at the time of the waiver, the defendant may not yet have been sentenced or may not recognize limitations in the effectiveness of coun- sel, sentencing in excess of the statutory maximum, racially based sentencing, and so forth. Though these opposing considerations result in a complex legal analysis, waivers of appeals in a plea bar- gain are not forensically, philosophically, or ethically problematic. Forensic evaluations of the competency to make such a waiver are routinely subsumed within the broader consideration of competency to stand trial. There is little philosophical tension, as the defendant making this election is typically acting in rational self-interest—that is, to secure a less severe sentence. Furthermore, this plea bargain and the associated waiver of appeals are usually accomplished with the advice, participation, and assistance of defense counsel, whose role of facilitating the most advantageous outcome for the defendant is ethically straightforward. Complexities in Waiver of Appeals Among Death-Sentenced Inmates Waivers of appellate review among death-sentenced inmates are notably different from those routinely encountered at plea bargaining. Whereas the defen- dant in a plea bargain may quite rationally waive appeals as part of obtaining a more favorable sen- tence, such a waiver by a death-sentenced inmate rep- resents an acceleration of the arguably more onerous punishment of execution. This volunteering, as it were, for death cuts against basic expectations of self- preservation and, accordingly, immediately raises questions regarding the rationality and motivations of such a determination. Equally problematic, the volun- teering death-sentenced inmate is at cross-purposes with appellate counsel, who are likely to regard that they are ethically bound to delay or seek relief from Competency to Waive Appeals ———123 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 123 the death sentence. Not uncommonly, the desire of the death-sentenced volunteer to accelerate execution is not shared by his or her family, who may seek stand- ing to intervene as a “next friend” and continue with the appellate review. A decision by a death-sentenced inmate to func- tionally accelerate execution by forgoing appeals cre- ates significant tension between competing rights and imperatives. On the one hand, competent adults (including death-sentenced inmates) are accorded some self-determination regarding their own mortal- ity. For example, an individual can elect to forgo or discontinue medically indicated treatment even if death is the predictable result but is barred from com- mitting suicide or seeking physician-assisted death. There is an analogous conundrum of determining where a rational determination that solitary confine- ment awaiting an inevitable death is more onerous than death stops and state-assisted suicide begins. Counterbalancing the right to self-determination among death-sentenced inmates, Justice John Marshall expressed in his dissenting opinion in Whitmore v. Arkansas (1990) that society has an interest in pre- serving the integrity of the criminal justice system and safeguarding the reliability of the application of capi- tal punishment. Meaningful appellate review was made central to the reliable administration of the death penalty in Gregg v. Georgia (1976). How is the death penalty as a legitimate sanction preserved if a death-sentenced inmate who is innocent or who has been sentenced in a constitutionally flawed trial is allowed to “volunteer” in order to escape the travails of confinement? Finally, there is tension between the complexity of appellate review and the limited literacy and legal sophistication of most capital offenders. Both direct appeals and postconviction review are extended, com- plicated, and tortured processes. Capital offenders may have difficulty in fully comprehending the associated legal issues or realistically evaluating their potential for success, rendering the “knowing and intelligent” condition illusory. Similarly, the concrete and rigid thinking associated with limited intelligence or neu- ropsychological deficits may interfere with effective problem solving and a realistic appraisal of available options, even while making “logical” arguments. The “voluntary” factor is also a complex consider- ation among death-sentenced inmates who seek to waive their appeals. This complexity is a function of both internal and external experience. A history of family dysfunction, substance dependence, and neu- ropsychological insults and findings as well as limited intelligence and literacy deficits are common among death-sentenced inmates. Such a background would be expected to reduce resilience. Not surprisingly, rates of depression and other psychological disorders among death-sentenced inmates are relatively high. Furthermore, the chronic stress of being under a sen- tence of death is not insignificant. These psychologi- cal experiences leave logic intact but significantly intrude on the death-sentenced inmate’s “free will.” These internal reactions may be aggravated by the arduous conditions of confinement on death row. Quite simply, many death-sentenced inmates who seek to end their appeals do so because they find the conditions on death row to be intolerable. This is not a surprising reaction. In most jurisdictions in the United States, death-sentenced inmates are held in solitary confine- ment in cramped cells, in death-segregated units, with severe restriction of activities or interaction with others. These conditions have been identified as both psycho- logically destabilizing and inherently coercive. The coercive implications of death row confinement in waivers of appeal have gained additional salience from research by Cunningham and colleagues demonstrating that death-sentenced inmates who were mainstreamed in the Missouri Department of Corrections with non- death-sentenced inmates were not a disproportionate source of violence. The combined effects of premorbid psychological vulnerability, depression, chronic stress, and extraordinarily restrictive confinement have been identified by international courts (e.g., Soering v. United Kingdom , 1989) as giving rise to “death row syndrome,” a legal rather than psychological classifica- tion intended to reflect the coercive totality of circum- stances impinging on death-sentenced inmates. Supreme Court Guidance on Competence to Waive Death Sentence Appeals The U.S. Supreme Court has not provided a clear standard for determining the competence of death- sentenced inmates to waive their appeals. In Rees v. Peyton (1966), the Court opined that the inquiry should be directed to whether he has capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand 124 ———Competency to Waive Appeals C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 124 whether he is suffering from a mental disease, disor- der, or defect which may substantially affect his capacity in the premises. Unfortunately, the Court did not define “rational choice” or specify the procedures the lower court should use to determine if this standard has been met. Subsequently, in Gilmore v. Utah (1976), the Court did not reference the Rees decision, instead simply con- cluding that Gary Gilmore had made a knowing and intelligent waiver. Though the knowing and intelligent factors implicated an inherent autonomous decision- making consideration, an explicit “voluntary” factor was incorporated by the Supreme Court in 1990 in Whitmore v. Arkansas. Some additional guidance is available from Rumbaugh v. Procunier , a 1985 U.S. Court of Appeals for the Fifth Circuit decision that the U.S. Supreme Court let stand by denying the petition for a writ of certiorari. Rumbaugh sought to structure the Rees criteria with the following questions: • Is the person suffering from a mental disease or defect? • If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him? • If the person is suffering from a mental disease or defect that does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options? Although these questions are helpful in providing a decision tree, they do not define the critical terms. Furthermore, they do not specify the procedures that should be employed to elicit answers to these questions. Evaluations of Death-Sentenced Inmates for Competence to Waive Appeals As is the case with most forensic evaluations, assess- ments by mental health professionals of competence to waive appeals by a death-sentenced “volunteer” are mostly descriptive rather than conclusionary. This is particularly important in light of the absence of a clear definition of many of the critical elements of compe- tence. A descriptive approach also acknowledges that determinations of incompetence by the courts have significant variability in the nature and severity of the qualifying psychological disorder, as well as the rela- tionship of that disorder to rational decision making. Such a highly descriptive narrative should provide a careful analysis of the motivations for waiving appeals. The motivations underlying such a waiver may be far more complex and less obvious than the stated rationale of the volunteer. Thus, it is important not only to engage the capital inmate in discussion regarding the available options but also to gather information on any current or historical psychological disorders. Depressive symp- toms and associated suicidal ideation are a particularly important focus, as is any paranoia. Many of the consid- erations explored in a competency-for-execution evalu- ation are also relevant to a waiver assessment, as these illuminate the capital inmate’s understanding of his or her own impending death. Specific attention should be paid to the conditions of confinement on the respective death row and how these affect mood, future perspec- tive, and waiver decision making. Throughout this extensive interview with the volunteering inmate, care- ful attention should be directed to rationality, logic, insight, and coherence of thought. Interviews should also be held with appellate coun- sel, as well as prison staff, family members, and other relevant third parties. Psychological testing, including personality and cognitive assessment, may be helpful in some cases to assess aspects of the inmate’s func- tioning that contribute to his or her understanding and motivations with respect to the waiver. Mark Douglas Cunningham See also Checklist for Competency for Execution Evaluations; Competency for Execution; Competency to Stand Trial Further Readings Blank, S. (2006). Killing time: The process of waiving appeal in the Michael Ross death penalty cases. Journal of Law and Policy, 14, 735. Cunningham, M. D., & Vigen, M. P. (2002). Death row inmate characteristics, adjustment, and confinement: A critical review of the literature. Behavioral Sciences & the Law, 20, 191–210. Gilmore v. Utah , 429 U.S. 1012 (1976). Gregg v. Georgia , 428 U.S. 153 (1976). Lyon, A. D., & Cunningham, M. D. (2006). Reason not the need: Does the lack of compelling state interest in maintaining a separate death row make it unlawful? American Journal of Criminal Law, 33, 1 – 30 . Competency to Waive Appeals ———125 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 125 Norman, M. T. (1998). Standards and procedures for determining whether a defendant is competent to make the ultimate choice—death; Ohio’s new precedent for death row “volunteers.” Journal of Law and Heath, 13, 103. Rees v. Peyton , 384 U.S. 312 (1966). Rumbaugh v. Procunier , 753 F. 395 (2d 5th Cir. 1985). Soering v United Kingdom , 11 E.H.R.R. 439 (1989). Whitmore v. Arkansas , 495 U.S. 149 (1990). C OMPETENCY TO W AIVE C OUNSEL (P ROCEED P RO S E ) In the United States, it is permissible, with the approval of the judge, for a criminal defendant to act as his or her own attorney when the case goes to court. Legal and clinical issues related to the defendant’s being competent to waive the right to legal represen- tation are discussed in this entry. In the United States, defendants accused of crimi- nal charges are entitled to rights and protections by the Constitution. One important right articulated in the Sixth Amendment is that every accused person is entitled to representation by a legal counsel. Like other constitutional rights, the right to counsel is guaranteed—that is, no one, including even the judge, can deprive the defendant of this right. However, a defendant may request a waiver of the Sixth Amendment right to legal representation and permis- sion of the court to represent himself or herself—in legal parlance, to proceed pro se. Waiving some constitutional rights is a common occurrence. The overwhelming majority of criminal cases (more than 90%) are resolved through a plea agreement between the defendant and the state, and to enter a guilty plea, a defendant must waive the consti- tutional rights to a trial and to confront the evidence. When it is required that the defendant provide a fac- tual basis or justification for the plea, he or she may further have to waive the Fifth Amendment right against self-incrimination. In the context of entering a guilty plea, defendants’ waiver requests typically occur after consultation with, and with the advice and consent of, their attorneys. Furthermore, by their nature, plea agreements are about disposition of the case; thus, defendants are commonly well-informed about the personal consequences of these waivers. In contrast, the request to waive the right to counsel more often marks a rift between the client and the attorney, and the potential impact on case outcome is usually not known. However, it is almost universally agreed that the likely impact is not good, as reflected in the adage that a defendant who proceeds pro se “has a fool for a client and an idiot for a lawyer.” But in the most exceptional cases, criminal defendants likely disadvantage themselves because they might lack the litigation skills needed to present their cases most effectively. Nevertheless, the judge may approve a request if he or she determines that the defendant is competent to waive counsel. Case law has articulated the qualities that must be present with respect to competent waivers of constitu- tional rights. Although there are minor variations in language across cases, generally, the judge must determine that the waiver is made knowingly, intelli- gently , and voluntarily . One court stated that the judge must determine whether the waiver was “made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” The courts have not further articulated the specific functional abilities (i.e., behavioral indica- tors) that are required for a defendant to demonstrate that his or her request meets these qualitative criteria. However, the case law is clear as to what is not required: It is not required that the judge deem the defendant’s decision to be a prudent one, nor does the competence determination hinge in any way on a demonstration that the defendant has litigation skills. When a defendant expresses the desire to waive the right to counsel, the court, either on its own motion or on the motion of the defense attorney, may order a clin- ical evaluation of the defendant’s mental competence. Presently, there are no standardized methods for psy- chiatrists or psychologists to use to evaluate compe- tence to waive counsel, and most such evaluations will be based on unstructured interviews, the substance and process of which may vary widely across examiners. An interviewing strategy used in evaluating compe- tence to plead guilty is embedded in the MacArthur Competence Assessment Tool–Criminal Adjudication and may offer some guidance for evaluations of compe- tence to proceed pro se. Briefly, this strategy involves having the defendant articulate what the choices are— in this instance, proceeding with an attorney in charge of presenting the defense or proceeding pro se. The defendant is then asked to describe both the potential advantages and the potential disadvantages of each alternative. Subsequent queries require that the alterna- tives be compared and contrasted (e.g., “Explain why Alternative a might be better than Alternative b. Are there some ways in which Alternative b might be better 126 ———Competency to Waive Counsel (Proceed Pro Se) C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 126 than Alternative a?”). A query as to the final choice and the reasons for that choice solicits the defendant’s beliefs about his or her case and situation, enabling the clinician to formulate a judgment of the plausibility or rationality and coherence of the defendant’s thinking. Ultimately, it is the judge’s decision whether to permit the waiver of the right to counsel. Even if the request to waive representation by counsel is granted and the case proceeds with the accused having pri- mary responsibility for the defense, the judge may still order that a lawyer be present during subsequent proceedings and available as a consultant to the defen- dant. Providing for such consultation, whether or not the defendants makes use of it, is a positive gesture by the court that attempts to ensure fairness and preserve the dignity of the adjudicatory process. Norman G. Poythress See also Adjudicative Competence of Youth; Capacity to Waive Rights; Competency, Foundational and Decisional; Competency to Stand Trial Further Readings Litwack, T. R. (2003). The competency of criminal defendants to refuse, for delusional reasons, a viable insanity defense recommended by counsel. Behavioral Sciences and the Law, 21 , 135–156. Mossman, D., & Dunseith, N. W., Jr. (2001). “A fool for a client”: Print portrayal of 49 pro se criminal defendants. Journal of the American Academy of Psychiatry and the Law, 29, 408–419. Perlin, M. (1996). “Dignity was the first to leave”: Godinez v. Moran , Colin Ferguson, and the trial of mentally disabled criminal defendants. Behavioral Sciences and the Law, 14, 61–81. Skeem, J., Golding, S. L., & Emke-Francis, P. (2003). Assessing adjudicative competency: Using legal and empirical principles to inform practice. In W. T. O’Donohue & E. R. Levensky (Eds.), Handbook of forensic psychology: Resource for mental health and legal professionals (pp. 175–211). Amsterdam: Elsevier. C OMPLEX E VIDENCE IN L ITIGATION Complex litigation tends to get framed as a problem for the jury system, but it is more properly viewed as a problem for any fact finder—juror, judge, arbitrator, expert panel—and for the litigants and their attorneys. Still, the jury framing is useful because it brings into focus some of the resources a fact finder needs to tackle the problem: attention, memory storage and retrieval, education and training, and life experience. In these respects, groups are advantaged over individ- uals, and experts are advantaged over nonexperts. Since judges have greater average expertise but juries act as groups, it is difficult to identify a net advantage either way. And, of course, accuracy is only one crite- rion by which we evaluate legal judgment; a full assessment requires considerations of efficiency, fair- ness, legitimacy, and community representation. The task of studying the topic of complex litigation recapitulates the key features of the problem. Complex litigation produces a vast and gnarly multidimensional search space, yet legal fact finders and jury researchers alike attempt to draw inferences from only fragmen- tary glimpses of isolated regions of that space. As a result, legal fact finders and jury researchers each com- bine sparse data with inferences that go beyond the data given. Theory is always important in sociolegal research, but for this topic, it is essential if we are to say much at all. This entry presents a theoretical framework for eval- uating expertise and collective decision making and describes the research done in this area. It also exam- ines the types of complexity with respect to the number of parties and issues in a dispute and the amount and complexity of the evidence presented in the trial. Theoretical Issues E E x x p p e e r r t t i i s s e e The typical jury is obviously far less expert than the judge in one key respect—expertise on the law as it pertains to the case. But because juries do not pro- vide a rationale for their verdict, we only rarely know that a jury has made a “mistake” on the law, and juries may not feel particularly hindered by their lack of legal expertise. What may matter far more is expertise with respect to the technical issues that may arise at the trial, involving the economic analysis of market power, the engineering of heavy machinery, the etiol- ogy of a disease, or the epidemiology of toxic expo- sure. Here, judges may outperform the average juror; judges are above average in education and intelli- gence, and they may have relevant experience from past trials. But we shouldn’t overestimate either intel- ligence or experience. Studies of expertise show that it can take a decade or more of concerted effort to Complex Evidence in Litigation ———127 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 127 develop true mastery of a technical skill. Graduate students are highly intelligent and still struggle for months to successfully complete their more technical graduate courses. And today’s judges are likely to have far less actual trial experience than their prede- cessors of earlier generations. As a sample of the com- munity, the jury may collectively have more relevant expertise in nonlegal issues than the relevant judge. G G r r o o u u p p s s a a s s I I n n f f o o r r m m a a t t i i o o n n P P r r o o c c e e s s s s o o r r s s In the 1950s, Irving Lorge and Herbert Solomon deduced that, ceteris paribus, groups are better situated than their individual members to find correct answers. If p is the probability that any given individual will find the “correct” answer, then the predicted probabil- ity P that a collectivity of size r will find the answer is P = 1 − (1 − p ) r . More recently, Lu Hong and Scott Page have derived theorems proving that cognitively diverse groups—defined with respect to the perspec- tives and schemas they use to tackle a problem—can outperform even their best members. But this model, like that of Lorge and Solomon, proves group compe- tence, not group performance. Empirically, we know that performance often falls short of competence. Both models hinge on a key premise: If at least one member finds the answer, it will be accepted as the collectivity’s solution—in short, “truth wins.” This can occur only if group members recognize the “correctness” of a solution once it is voiced. Unfortunately, there are two problems with this assumption. First, Garold Stasser and his collabora- tors have shown that not all relevant facts get voiced; group discussion tends to focus on shared rather than unshared information. Second, even when voiced, correct answers are not always recognized as such. At best, “truth supported wins”—at least some social support is needed for a solution to gain momentum, indicating that truth seeking is a social as well as an intellective process. But even that occurs only for some tasks. One such task appears to be recognition memory; research has shown that groups outperform their members on memory tasks. But for more com- plex inferential tasks, members need a shared conceptual scheme for identifying and verifying solu- tions. When they lack such a scheme, the more typi- cal influence pattern is majority amplification,in which a majority faction’s influence is disproportion- ate to its size, irrespective of the truth value of its position. In other words, strength in numbers trumps strength in arguments. In theory, collective decision making (or the statis- tical aggregation of individual judgments) is well suited for reducing random error in individual judg- ments. But bias is a different story. Biases can be pro- duced by content—inadmissible evidence or extralegal factors such as race and gender—or by process, as when jurors rely on an availability heuristic (over- weighting what comes most readily to the mind), an anchoring heuristic (insufficiently adjusting away from an arbitrary starting value), confirmatory bias, or hindsight bias. Analyses by Norbert Kerr, Robert MacCoun, and Geoffrey Kramer suggest that under a wide variety of circumstances, collective decision making will amplify individual bias rather than attenu- ate it. The collective will tend to amplify individual bias when there is “strength in numbers,” such that large factions have an influence disproportionate to their size, as will occur explicitly in a “majority rules” system and when the case at hand is “close” rather than lopsided. A case can be close for several reasons, and each may pose different challenges for the fact finder. Facts can be ambiguous and vague; they can be clear but may contradict each other; or they can seem clear to each perceiver, but the perceivers may disagree on which side the “clear” facts support. The latter is par- ticularly likely in an adversarial setting, where jury factions may form favoring each side of a dispute. D D e e f f i i n n i i n n g g C C o o m m p p l l e e x x i i t t y y In 1987, Robert MacCoun postulated a preliminary taxonomy of three basic categories of complexity: dis- pute complexity (the number of parties and number of issues in a dispute), evidence complexity (the quan- tity, consistency, and technical content of evidence), and decision complexity (the complexity of the law and the complexity of the inferential steps and link- ages required to render a verdict). In the 1990s, Heuer and Penrod conducted the first systematic statistical analysis of trial complexity in a field study of 160 criminal and civil trials. Judges were asked to rate the trials on a wide array of attributes. Factor analyses suggested three underlying dimensions, roughly over- lapping MacCoun’s categories: evidence complexity, legal complexity, and the quantity of information pre- sented at trial. As in earlier work, it was found that judge ratings of complexity were unrelated to judge- jury agreement rates. Both analyses treated quantity as a problem for the fact finder. On reflection, that doesn’t necessarily follow. Large trials are extended over long time 128 ———Complex Evidence in Litigation C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 128 periods. Citizens who are able to track the plot com- plexities of soap operas such as All My Children or the team lineups of the NBA clearly have the resources to track large arrays of factual data. Indeed, inductive inference often gets easier with additional data, not harder. What probably matters more is the internal structure of the evidence—the inconsistencies and contingencies and interdependencies. Evidence Complexity We know very little about evidence complexity in the trial context, but there are much larger bodies of research on deductive and inductive inference in non- legal tasks. In approaching this literature, it is useful to keep two distinctions in mind. One is between the two criteria for validity: correspondence versus coher- ence. Correspondence considers whether our infer- ences match the empirical facts; coherence considers whether our inferences “hang together” in a manner consistent with the normative standards of deductive logic, Bayesian u

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pdating, and the like. The second distinction is between competence and performance. Competence describes what we are capable of achiev- ing; performance describes what we actually achieve. A disproportionate amount of work has been done in the “coherence/performance” cell. We know that people routinely violate normative inference stan- dards for even fairly simple tasks, and they do so sys- tematically rather than randomly, through the use of heuristics. But various lines of evidence from the other three cells suggest that people—and honeybees, birds, and other organisms—are competent to perform inferences of remarkable complexity and sophistica- tion in some settings. This work suggests that compe- tence may exceed the performance we often observe and that the structure and sampling of evidence (and the match of data to our specific competencies) may be what closes that gap. So the applied challenge is to discover ways of restructuring fact-finding procedures to bring performance closer to competence. David Schum (using a Bayesian perspective) and Nancy Pennington and Reid Hastie (using narrative schemas or “stories”) have done much to elucidate how the internal structure of evidence gets cognitively represented and analyzed by fact finders. (Much of this work has been collected in Hastie’s edited volume Inside the Juror. ) Schum’s work shows that people can sometimes perform better when tackling small, piece- meal inferences rather than larger, more global infer- ences. Pennington and Hastie show how the temporal ordering of evidence at trial can facilitate (or interfere with) fact finders’ ability to form coherent narratives. Unfortunately, the adversarial setting poses difficul- ties very different from those one might encounter when mastering skills such as reading or learning to use a computer program. Evidence structures aren’t neutral; some favor one litigant at the expense of another. Indeed, lawyers with weak cases may even seek to undermine clarity. Highly technical evidence involving statistics, chemistry, engineering, or economics poses additional problems. The amount of time experts spend in explaining highly technical concepts at trial falls well short of the time one spends learning in a semester- long course (without prerequisites!), though it still greatly exceeds what we can usually simulate in a mock jury experiment. Nevertheless, it seems likely that fact finders rely heavily on heuristic cues (“lots of charts,” “sure looked smart”) to compensate for their limited understanding of the material. Thus, Joel Cooper and his colleagues found that jurors were influenced by the content of expert testimony on the medical effects of polychlorobiphenyls (PCBs) when it was relatively simple but relied on the witness’s cre- dentials when the testimony was complex. Dispute Complexity Much of what we know about how juries handle dis- pute complexity comes from an important program of research by Irwin Horowitz and his collaborators. They found that mock jury verdicts are systematically influ- enced by the size and configuration of the plaintiff pop- ulation. Aggregating multiple plaintiffs into a single trial appears to increase the likelihood that the defen- dant will be found liable, but each plaintiff’s award may be smaller than in a consolidated trial. There are simi- lar trade-offs involved in trying all the issues together versus bifurcating (or trifurcating) the trial into seg- ments addressing causation and liability versus com- pensatory versus punitive damages—unitary trials may increase liability but lower damages. These effects are not neutral with respect to the parties, but bifurcation may be justified on procedural grounds because it appears to improve the quality of the decision process. Conclusions If judges clearly outperformed juries as legal fact find- ers in complex cases, we would face a dilemma. But we don’t. Neither theory nor research indicates that Complex Evidence in Litigation ———129 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 129 judges are superior to juries in complex cases; it is safe to say that both need all the cognitive help we can give them to cope with an increasingly complex world. Research on complexity suggests that jurors may be better able to cope with complexity if they are encour- aged to use the same strategies used by students who take notes and ask questions in class. Although the cognitive advantages of treating fact finders like active information processors may seem obvious, some attor- neys and judges are reluctant to cede control over the case, in whatever small measure. But research shows that while these innovations help only modestly, they also do little or no observable harm. Robert MacCoun See also Jury Competence; Jury Decisions Versus Judges’ Decisions; Jury Deliberation; Jury Reforms; Statistical Information, Impact on Juries Further Readings Cooper, J., Bennett, E. A., & Sukel, H. L. (1996). Complex scientific testimony: How do jurors make decisions? Law & Human Behavior, 20, 379–394. ForsterLee, L., Horowitz, I. A., & Bourgeois, M. (1994). Effects of notetaking on verdicts and evidence processing in a civil trial. Law & Human Behavior, 18, 567–578. Hastie, R. (Ed.). (1993). Inside the juror. Cambridge, UK: Cambridge University Press. Heuer, L., & Penrod, S. (1994). Trial complexity: A field investigation of its meaning and its effects. Law & Human Behavior, 18, 29–51. Horowitz, I., & Bordens, K. S. (2002). The effects of jury size, evidence complexity, and note taking on jury process and performance in a civil trial. Journal of Applied Psychology, 87, 121–130. Kerr, N., MacCoun, R. J., & Kramer, G. (1996). Bias in judgment: Comparing individuals and groups. Psychological Review, 103, 687–719. Lempert, R. O. (1981). Civil juries and complex cases: Let’s not rush to judgment. Michigan Law Review, 80, 68–132. MacCoun, R. J. (1987). Getting inside the black box: Toward a better understanding of civil jury behavior. Santa Monica, CA: RAND. C OMPUTER-A SSISTED L INEUPS Many people are familiar with the live lineups and photo lineups shown in television crime dramas. Increasingly, however, police departments are making use of computer technology to construct lineups and administer them to witnesses. Computer technology can be used to build better lineups by tapping into larger databases of faces to provide better choices to witnesses as well as to provide flexibility and efficiency to officers in the office or the field. Computer-assisted lineups can be administered either simultaneously or sequentially, and they have the added benefits of being programmed exactly to department policy and preserv- ing lineup administration procedures and choices. Lineup Construction Researchers at the University of Northern Iowa have developed a Web-based program that allows officers to construct a lineup in the office or in the field. Internet capability (via modem, cable, wireless, or cell phone) allows the computer to link to a central data- base of faces that can be searched on the basis of a description of the perpetrator. The officer can then construct the lineup. Researchers use a method to evaluate lineups in order to determine if nonsuspect lineup members are serving as adequate fillers. This is referred to as a mock witness evaluation, and it involves providing a person who is not the actual wit- ness with a description of the suspect. The mock wit- ness is then given a lineup and asked to pick out the suspect. If mock witnesses can pick out the suspect at a greater than chance rate, the lineup is said to be biased. Typically, the realization that a lineup is biased occurs well after the lineup administration procedure, usually at the criminal trial. However, the computer- ized method allows for a mock witness test to be con- ducted during the course of the investigation, and in the event that the lineup is biased, new lineup mem- bers can be selected, thereby avoiding biased lineups being shown to witnesses. The police can accomplish this by sending the lineup and the description of the suspect to officers not associated with the case (across the hall or the state), providing for the lineup to be evaluated prior to administering it. Lineup Presentation Police lineups in the United States have traditionally been administered by presenting the witness a photo array, typically arranged six photos to a page. (These are sometimes referred to as “6-packs.”) In this type of lineup, photos are presented simultaneously, and the witness chooses a photo by pointing at or stating the 130 ———Computer-Assisted Lineups C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 130 position number of the lineup member. There has been a recent movement toward administering lineups sequentially, so that witnesses see only one photo at a time. Unlike the simultaneous lineup, in which there is only one lineup decision, witnesses make a decision for each photo in the sequential lineup (“yes” or “no”). One benefit of the sequential lineup is that it has been demonstrated to reduce false identifications of innocent individuals. Administrator Bias An additional benefit of the sequential method is that the photos can be randomized so that the administrator does not know which photo the witness is looking at, reducing the likelihood of administrator bias. Administrator bias occurs when the administrator inad- vertently gives cues to which photo belongs to the sus- pect. When neither the administrator nor the witness knows who the suspect is, the procedure is referred to as “double-blind” administration. Computer-assisted lineups provide for reduced interaction between admin- istrator and witness, which greatly reduces the uninten- tional cues that can pass from the administrator to the witness. Policy and Procedures Law enforcement agencies typically have procedures for how lineups should be administered. However, deviations in procedure can easily occur when using traditional hard-copy lineup administration. Not only do computers have the capability to monitor and col- lect an enormous amount of information, they can also be programmed to administer the lineup exactly in accordance with policy and procedures. The adminis- trator needs only to start the program and then can minimize his or her presence. Computers have the additional benefit of providing both written and audio instructions in any language. Lineups can be adminis- tered either simultaneously or sequentially. Lineup members can be randomly assigned to new positions each time the lineup is presented, with the administra- tor keeping accurate track of the position of each lineup member while recording the time taken to make each lineup decision. Many computers are equipped with condenser microphones and video cameras, thus enabling recording of the exact cursor location as well as audio and video of the event. Depending on the pro- cedures, confidence can be measured for each lineup decision or after the lineup is complete. Lineup Preservation Once a lineup decision has been made, the identification information must be recorded and preserved. A multi- tude of problems can occur in the preservation of hard- copy lineup information: Information about where the photos were gathered from and who the photos repre- sent, along with administration information (who administered the lineup, the date and time, etc.), can eas- ily get lost or not be recorded at all. Evidence obtained using computers can be better preserved than evidence from traditional hard-copy lineups. Lineup evidence in the form of data, photos, audio, and video (including a replay of the entire identification event) can be stored on the computer and automatically copied to a DVD, and it can be uploaded to a departmental server and stored on backup drives for later review by researchers, law enforcement personnel, attorneys, or jurors. Showups Many identifications occur shortly after the commis- sion of a crime because law enforcement officers often apprehend suspects in the vicinity of the crime. When this occurs, the law enforcement personnel will either bring the witness to the location where the sus- pect was apprehended or take the suspect to the wit- ness. Either way, this is referred to as a showup. Showups are problematic because both the law enforcement officer and the witness know who the suspect is. Researchers at the University of Northern Iowa have begun experimenting with using handheld personal digital assistants (PDAs) in lieu of showups. PDAs have the ability to take a photo of the suspect and send the photo to a centralized location, either by phone or by WiFi. Technicians at the centralized loca- tion can then construct a lineup around the photo and transmit the lineup back to the PDA, allowing the offi- cer to administer a sequential lineup to the witness. One added benefit is that the lineup can be transferred from the suspect’s location to the witness’s location, involving less physical transfer of people and PDAs. The handheld PDA has many of the capabilities of desktop or laptop computers, including playing sound instructions, audio recording the witness’s identifica- tion, and transferring the evidence back to a central- ized location for preservation. Otto H. MacLin See also Lineup Filler Selection; Showups; Simultaneous and Sequential Lineup Presentation Computer-Assisted Lineups ———131 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 131 Further Readings MacLin, O. H., Meissner, C. A., & Zimmerman, L. A. (2005). PC_Eyewitness: Administration and applications for research in eyewitness identification psychology. Behavior Research Methods, 37, 324–334. MacLin, O. H., & Phelan, C. (in press). PC_Eyewitness: Evaluating the New Jersey method. Behavior Research Methods. MacLin, O. H., Zimmerman, L. A., & Malpass, R. S. (2005). PC_Eyewitness and the sequential superiority effect: Computer based lineup administration. Law & Human Behavior, 29 (3), 303–321. C ONDITIONAL R ELEASE P ROGRAMS Conditional release programs for persons acquitted by reason of insanity (not guilty by reason of insanity or NGRI) are designed to maximize public safety while meeting the courts’ mandate that some individual liber- ties be protected. These programs developed as a result of the state and federal court decisions in the 1960s, which required that this population be provided with commitment procedures similar to civil commitment. Prior to these decisions, persons found NGRI were given an automatic, indefinite “life sentence” to maxi- mum-security state psychiatric hospitals for crimes ranging from shoplifting to murder. Under the new laws, persons committed as NGRI had to meet the com- mitment requirements of civil patients—that is, mental illness and dangerousness. Their continued commit- ment had to be periodically reviewed, and if they no longer met the commitment standards, they were to be released. Concerned with releasing what were believed to be “dangerous” offenders with mental illness into the community, states created a new category of posthospi- talization supervision—conditional release. Research suggests that both goals were met in that insanity acquittees no longer languished in hospitals with no hope of being released and those who remained danger- ous and mentally ill remained in a secure facility. The other major watershed event that affected the insanity defense, especially release procedures, was the NGRI acquittal of John Hinckley from the charge of attempting to assassinate President Ronald Reagan in 1981. Following Hinckley’s 1982 acquittal, the most common type of legal change in this area of law was in postacquittal procedures. Most states responded by providing shared responsibility between the trial court and the clinicians responsible for the day-to-day inpa- tient treatment of the committed population. Until then, hospital clinicians or the county court where the hospital was located had made the release decisions. Hinckley’s acquittal further decreased the already declining popularity of the insanity defense among the public. He eventually received a number of 1-day con- ditional releases under the supervision of his parents in 2003, more than 22 years after his actions. His release was widely opposed by the victims’ families, the Justice Department, and many others. Conditional release programs are often referred to as “mental health parole or probation,” but they signif- icantly differ from traditional criminal justice after- care supervision. The major differences between the two types of programs are in the length of the super- vision period, the due process requirements for revo- cation, and the agency responsible for supervision. In most states, conditional release can be extended for any number of reasons, including clinical concerns, such as medication compliance; safety concerns; and lack of adequate community placement. For most parolees or probationers, their supervision time is finite. A few states limit the duration of conditional release to the maximum sentence that would have been given by the court had the defendant been con- victed, reducing the utility of conditional release for less serious offenders. More often, conditional release is a relatively unrestrained and extensive period of community supervision and consequently makes the insanity defense a lesser plea and outcome. Revocation of conditional release is less difficult than in the criminal justice system. Few states require a formal due process hearing to revoke conditional release, unlike criminal justice postrelease programs. Typically, conditional release can be revoked if the individual simply violates any term of the release. While some states have in place more procedural safe- guards, they are still minimal compared with other aftercare programs. A final difference that highlights the special circumstances of the population acquitted NGRI is in the agency responsible for supervision. These programs often bisect the mental health and criminal justice systems due to the legal status of per- sons acquitted NGRI. Because an insanity plea is an affirmative defense, defendants admit to factual guilt but are legally not responsible due to lack of mens rea. Consequently, while their treatment and confinement are provided within the mental health system across all states, their release might be controlled to some 132 ———Conditional Release Programs C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 132 extent by the criminal justice system, in particular the county’s criminal court of commitment. This dual responsibility can cause professional conflict and con- fusion, making the release of insanity acquittees a complex legal and procedural process. None of this confusion surrounds parole or probation. While in most states an NGRI finding leads to an automatic inpatient evaluation, this is not the case in all states. A few states allow the judge discretion in bypassing an order for hospitalization. Following an NGRI commitment, periodic reviews are conducted at intervals designated by state law: commonly 30 days, 60 days, 90 days, 1 year, and then annually. At this review, the treating psychiatrist or patient advocate can recommend or request conditional release. This appli- cation sets in motion the state’s conditional release pro- cedures, which range from a simple approval by a judge in the county where the acquittal was recorded to a complex, multilayered process in which hospital, state, and court officials are required to approve the petition. In some states, the county judge and/or district attorney have to approve even internal security changes, such as from closed to open unit, or grounds privileges. The complexity of the release procedures has an impact on the likelihood of release, who is released, and the length of time between approval and actual release. An important component of conditional release is the avail- ability of community programs to provide services to this forensic population. An innovative program developed in Oregon in 1978 and established in Connecticut in 1985 sought to gain greater control over persons found NGRI. The Psychiatric Security Review Board (PSRB) is a multi- disciplinary independent board with full responsibili- ties for persons found NGRI. Decision making is highly centralized, and this board grants and revokes conditional release and sets the terms of release. This model has never been attempted in states with large populations. Most persons found NGRI and subsequently placed on conditional release draw little, if any, public atten- tion, and the petitions are usually supported by the courts. Who supervises the persons on conditional release programs varies from state to state. Many states, in particular larger states with larger NGRI populations, have special intensive case managers who have experience or special training with forensic clients. Their caseload is often smaller than in tradi- tional aftercare programs. This common model for conditional release leads to decentralized supervision and decision making once the person is released. In addition to possible revocation, conditional release can be extended by the court, or the person can be dis- charged from all supervision. Lisa Callahan See also Treatment and Release of Insanity Acquittees Further Readings Appelbaum, P. S. (1994). Almost a revolution: Mental health law and the limits of change . New York: Oxford University Press. Callahan, L. A., & Silver, E. (1998). Factors associated with the conditional release of persons acquitted by reason of insanity: A decision tree approach. Law & Human Behavior, 22, 147–163. Steadman, H. J., McGreevy, M. A., Morrissey, J. P., Callahan, L. A., Robbins, P. C., & Cirincione, C. (1993). Before and after Hinckley: Evaluating insanity defense reform . New York: Guilford Press. C ONDUCT D ISORDER Conduct disorder (CD) is a repetitive and persistent pattern of behavior that violates the rights of others or age-appropriate norms and causes significant impair- ments in various domains of functioning. CD accounts for a substantial number of youths who enter into mental health facilities in the United States and Canada, and for this reason it is an important disorder for researchers to investigate and for clinicians to treat. Although CD continues to be problematic for the individual and society, remarkable progress has been made in our understanding of CD. Subtyping approaches have helped reduce some of the hetero- geneity of the disorder and provide a better under- standing of the potential etiologies associated with various types of CD. In addition, intervention pro- grams have been developed that have been shown to be effective. These treatment programs tend to be intensive and multimodal, focusing on working with the youth to reduce CD symptoms but also providing parent training to improve attachment as well as parental monitoring and supervision practices. It is hoped that future research focusing on further refining the subtypes of CD and determining interventions that Conduct Disorder ———133 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 133 are most effective with specific subtypes of youth will assist mental health professionals in reducing CD symptoms and the concomitant costs to society. Definition and Subtypes According to the Diagnostic and Statistical Manual of Mental Disorders (fourth edition, text revision; DSM- IV-TR ), CD is a repetitive and persistent pattern of behavior that violates others’rights or age-appropriate norms and causes clinically significant impairments in various domains of functioning. For example, symp- toms of CD may include aggression, damaging prop- erty, and lying. For a diagnosis of CD, the youth must have evidenced 3 of the 15 symptoms within the past 12 months, with at least 1 symptom being present for the past 6 months. Because youths with CD are a heterogeneous group, various attempts have been made to identify subtypes of CD for informing etiology and intervention strategies. Earlier versions of the DSM differentiated between socialized versus undersocialized and aggres- sive versus nonaggressive dimensions. The socialized subtype was characterized by covert and overt antiso- cial behavior committed within the context of groups, whereas the undersocialized subtype was characterized by assaultive behavior that was carried out alone. The current version of the DSM in part incorporates Terrie Moffitt’s taxonomy and differentiates subtypes based on the age of onset: The childhood-onset and adolescence-onset subtypes are defined by characteris- tics of the disorder being present before and after the age of 10, respectively. This classification is intended to distinguish the life-course-persistent antisocial youth from the adolescence-limited antisocial youth, a potentially less serious subtype of CD. In support of this distinction, research by Paul Frick and Jeffrey Burke and colleagues has found that childhood-onset CD is associated with temperament and family dys- function, whereas adolescence-onset CD is associated with delinquent peer affiliation. Furthermore, early onset is associated with the persistence of CD and an increased likelihood of violent and criminal behavior. Two other classification systems include differenti- ating CD into overt and covert subtypes and on the basis of two common co-occurring disorders, attention deficit hyperactivity disorder (ADHD) and anxiety. Research by Jeffrey Burke and colleagues and Paul Frick and colleagues suggests that there is some evi- dence for the utility of these distinctions. The presence of covert symptoms is associated with the persistence of CD, and youths with both CD and ADHD engage in a greater variety of delinquent behaviors and are more violent. In contrast, youths with both CD and anxiety display fewer impairments in peer relationships and have fewer police contacts. Prevalence and Impact According to the DSM-IV-TR , the prevalence of CD ranges from 1% to more than 10% in the general pop- ulation. Large-scale population studies report preva- lence rates ranging from 3% to 10% in nonclinical samples. Prevalence rates by gender are reported to range from 2% to 16% in boys and 1% to 9% in girls. The differences in prevalence rates are likely due to differences in the age of the youths sampled, CD cri- teria, time frame, and method of assessment. The negative consequences associated with CD affect a variety of domains, including education (e.g., poor academic performance), employment (e.g., increased likelihood of the need for financial assis- tance), relationships (e.g., peer rejection), mental health (e.g., substance abuse), and criminality. Second, a diagnosis of CD can increase one’s risk for other psychiatric and emotional disorders. The most well- established outcome is the link between CD and anti- social personality disorder (APD) in adulthood, on the assumption that there is a developmental progression between the disorders. Research by Lee Robins sug- gests that between 25% and 40% of children with CD will meet the diagnostic criteria for APD. Finally, CD is one of the most costly diagnoses in terms of involvement with mental health services and the criminal justice system. Youths with CD use a vari- ety of services, including additional school resources, social services, general health services, inpatient and outpatient mental health services, and juvenile justice services. Research by Michael Foster and Damon Jones indicates that the cost of services used by the average youth with CD exceeds $14,000 per youth by the end of adolescence and the cost of total expenditures across adolescence is approximately $70,000 more than for youths without any behavioral disorders. Research by Stephen Scott and colleagues indicates, in more general terms, that children with CD cost 10 times more than those without CD. Conduct Disorder and Psychopathy Research by Paul Frick and Donald Lynam sug- gests that psychopathy and a callous and unemotional 134 ———Conduct Disorder C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 134 interpersonal style may identify a subtype of child- hood-onset CD. More important, the presence of cal- lous-unemotional traits may provide the necessary developmental link between CD and psychopathy. Cross-sectional studies have found that antisocial youths with callous-unemotional traits exhibit a greater number, variety, and severity of conduct prob- lems and more severe forms of aggression. Children with CD and callous-unemotional traits also evidence a preference for thrill-seeking activities, possess a reward-dominant response style, and demonstrate less anxiety. Further support for this distinction is the find- ing that genetic factors appear to play a larger role in those with callous-unemotional traits. Finally, cal- lous-unemotional traits are predictive of a number of negative outcomes, including a greater number and variety of conduct problems, higher levels of proac- tive aggression and self-reported delinquency, more police contacts, and a diagnosis of APD in adulthood. Prevention and Intervention CD is typically regarded as a disorder that is not very amenable to treatment efforts. In fact, earlier research suggested that the majority of early treatment efforts have been found to be largely ineffective. Second, treatment of CD is difficult owing to noncompliance. Finally, certain interventions, such as peer group strategies, can have iatrogenic effects and increase the level and severity of antisocial behavior. Despite these generally negative early findings with respect to the treatment of CD, a number of interventions have been found to be effective, including medication and vari- ous psychosocial treatments. For very severe cases of CD, some have suggested that psychopharmacology may be indicated. Jeffrey Burke and colleagues suggest that drugs such as lithium, risperidone, and methylphenidate may be effective for youths with severe CD. More specifi- cally, LeAdelle Phelps and colleagues suggest that haloperidol, clonidine, methylphenidate, and risperi- done may be effective in reducing severe aggression in youths with CD. However, psychopharmacology is not recommended as the primary treatment for CD because there is a lack of evidence that medication can alter the symptoms of CD per se and the medications do not have a prophylactic effect on CD symptoms. Rather, it appears that medication is most effective in reducing severe conduct problems in difficult cases. Although we note these recommendations for severe CD, we do so with caution given the lack of sound methodological studies on the effectiveness of psy- chopharmacological treatments for youths with CD. Mental health professionals should carefully weigh the costs and benefits of administering drugs in the treatment of CD. A number of effective behavioral and psychosocial interventions for treating CD have been reviewed by Alan Kazdin and Paul Frick. One of the most effective interventions is parent management training (PMT). The focus of PMT is to reduce problem behaviors and increase prosocial behaviors by educating parents in techniques such as positive reinforcement, consistent discipline, and effective supervision. There is evi- dence suggesting that PMT is effective in the short term in clinical populations, reduces deviant behavior across multiple domains, and is able to reduce prob- lematic behaviors to within the levels of normative youth, with benefits evident 1 to 3 years after treat- ment. Similarly, intervention strategies that use appro- priate parenting strategies and attachment principles have also proved effective in terms of decreasing externalizing and internalizing problems in adoles- cents with CD. However, it can be difficult to motivate parents to complete treatment programs, and there is evidence that parent training is not always effective with severely dysfunctional families. Another effective treatment strategy adopts a cog- nitive-behavioral approach, which targets deficits in social cognition and problem solving, largely through inhibiting impulsive or angry responding by altering the processing of social information. A variant of this approach is child social skills training, which focuses on addressing interpersonal problems through tech- niques such as anger control and coping skills. There is some evidence for the effectiveness of social skills training in terms of decreases in aggression and anti- social behavior, increases in prosocial behavior in the short term, and improved interactions with peers. However, it can be difficult to maintain the skills over long periods and in domains outside the therapeutic setting. Therefore, some researchers recommend booster sessions to maintain the effects of treatment. A promising approach is that of multimodal inter- ventions such as multisystemic therapy (MST), which addresses risk at the individual, family, peer, school, and neighborhood levels. MST involves a comprehen- sive assessment to determine how the various levels influence the youth’s problem behavior, and this information is then used to develop an individualized, intensive treatment plan. For example, parents may be educated in how to improve communication, and Conduct Disorder ———135 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 135 youths may be encouraged to increase their associa- tion with prosocial peers. There is some evidence of the effectiveness of MST in terms of reduction in aggressive behavior, lower rearrest rates, and fewer days of incarceration, with the benefits maintained for as long as 5 years posttreatment. As noted by Paul Frick and Eva Kimonis, the gen- eral conclusions regarding intervention for CD are that treatment is more effective with younger children, who exhibit less severe conduct problems; treatment effects do not generalize across settings; and it is dif- ficult to sustain improvements over time. Bearing in mind these concerns, future efforts should be directed toward determining which treatments are the most effective at different developmental stages and for specific subtypes of youth. In addition to developing and administering appro- priate intervention strategies, efforts should also be directed toward the prevention of CD symptoms. Interventions focus on mental illness with the goal of reducing or ameliorating impairment, whereas preven- tion focuses on mental health with the goal of develop- ing adaptive, prosocial functioning. Generally, prevention programs do not address CD directly but address the risk factors related to CD and target youths identified as being at high risk for developing CD. Promising pre- vention programs include early family-based interven- tions that provide support and services to women during and after pregnancy, school-based interventions that provide additional intensive classroom programs, and community-based interventions that provide programs and activities in the community to promote prosocial behavior. Some examples include the Triple- P positive parenting program, the Fast Track program, and the Incredible Years parenting program. Follow-up studies with youths who received these types of inter- ventions found that they resulted in less aggression, fewer acting-out behaviors, lower arrest and recidivism rates, and less severe criminal offenses. Zina Lee and Randall T. Salekin See also Juvenile Offenders; Juvenile Offenders, Risk Factors; Juvenile Psychopathy; Mental Health Needs of Juvenile Offenders Further Readings American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., text revision). Washington, DC: Author. Kazdin, A. E. (1995). Conduct disorders in childhood and adolescence (2nd ed.). Thousand Oaks, CA: Sage. Kazdin, A. E. (2002). Psychosocial treatments for conduct disorder in children and adolescents. In P. E. Nathan & J. M. Gorman (Eds.), A guide to treatments that work (2nd ed., pp. 57–85). New York: Oxford University Press. Lynam, D. R. (1996). Early identification of chronic offenders: Who is the fledgling psychopath? Psychological Bulletin, 120, 209–234. Moretti, M. M., Emmrys, C., Grizenko, N., Holland, R., Moore, K., Shamsie, J., et al. (1997). The treatment of conduct disorder: Perspectives from across Canada. Canadian Journal of Psychiatry, 42, 637–648. Salekin, R. T., & Frick, P. J. (2005). Psychopathy in children and adolescence: The need for a developmental perspective. Journal of Abnormal Child Psychology, 33, 403–409. C ONFESSION E VIDENCE Confession evidence is highly potent, and its incrimi- nating effects are difficult to erase. This entry describes the impact of confessions on jury verdicts, examines three concerns about the way in which juries evaluate confession evidence, and considers the steps that can be taken to ensure that jurors assess such evidence appropriately. In cases where a confession is disputed, a judge determines the voluntariness and admissibility of the confession during a preliminary hearing. In the American criminal justice system, if a confession is deemed voluntary, it is then submitted for consideration to the jury. In some states, the jury is specially instructed to make an independent judgment of voluntariness and to disregard statements found to be coerced; in other states, the jury receives no such instruction. Either way, it is clear that jurors faced with evidence of a confession, and the defendant’s claim that it was false, must deter- mine the credibility and weight of that evidence in reaching a verdict. Mock jury studies have shown that confession evi- dence has a greater impact on jury decision making than other forms of human evidence, such as eyewitness identification and character testimony. Confessions are so difficult to overcome that mock jurors tend to trust them even when it is not legally and logically appropri- ate to do so. In a study that illustrates this point, Saul Kassin and his colleague presented mock jurors with one of three versions of a murder trial. In the 136 ———Confession Evidence C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 136 low-pressure version, the defendant had confessed to the police immediately on questioning. In the high-pressure version, he was interrogated aggressively by a detective who waved his gun in a menacing manner at him. In the control version, there was no confession in evidence. Faced with the high-pressure confession, participants reasonably judged the statement to be involuntary and self-reported that it did not influence their decisions. Yet when it came to verdicts, this confession significantly boosted the conviction rate. This pattern appeared even in a situation in which subjects were specifically admonished by the judge to disregard confessions that they found to be coerced. Criminal justice statistics reinforce the point that confessions tend to overwhelm other exculpatory evidence, resulting in a chain of negative legal conse quences—from arrest through prosecution, conviction, and incarceration. Archival analyses of actual cases that contained confessions that were later proved false innocent have thus shown that when inno cent confessors plead not guilty and proceed to trial, jury conviction rates range from 73% to 81%. There are three bases for concern about the way in which juries can be expected to evaluate confession evidence in support of conviction. First, common- sense leads people to trust behaviors that do not appear to serve a person’s self-interest, such as con- fessions. Most people believe that they would never confess to a crime that they did not commit and do not expect that others would either. Indeed, in a wide range of contexts, social psychologists have found that in perceiving the behaviors of others, people tend to overestimate the influence of dispositions and underestimate the influence of situational factors—a phenomenon known as fundamental attribution error. A second basis for concern is that people, includ- ing professional lie catchers, are not typically adept at distinguishing between truth and deception. For example, although it is common to assume that “I’d know a false confession if I saw one,” a recent study has shown that neither college students nor police investigators were able to differentiate between true and false confessions made by male prisoners. Hence, there is reason to believe that lay jurors would have difficulty in distinguishing between true and false confessions when presented as evidence. Third, jurors do not typically see the corruptive process of interrogation by which confessions are elicited. In many cases of proven false confessions, the statements that were presented in court often contained accurate details about the crime, statements of motivation, apologies and expressions of remorse, and even corrections to errors that the suspects had supposedly identified. Typically presented with an oral, written, or taped confession but not the question- ing that preceded it, however, jurors are not in a posi- tion to evaluate the source of these details. False confessions thus tend to appear voluntary and the product of personal knowledge, masking the coercive processes through which they were produced. It is clear that additional safeguards are needed when confession evidence is presented in court. There are two possibilities in this regard. One is for trial courts to permit psychologists to testify as experts—a practice that is common but not uniform across states. The purpose of this testimony is to assist juries by informing them about the processes of interviewing and interrogation, the phenomenon of false confessions, the psychological factors that increase the risk of a defen- dant making a false confession, and other general prin- ciples (the purpose in these cases is not for the expert to render an opinion about a particular confession, a judg- ment that juries are supposed to make). A second important mechanism is to ensure that judges and juries can observe the process by which confessions are produced by videotaping entire interro- gations. A videotaping policy would have many advantages: The presence of a camera would deter interrogators from using highly coercive tactics, pre- vent frivolous defense claims of coercion, provide a full and accurate record of how the statement was pro- duced, and perhaps even increase the fact-finding accu- racy of judges, who must rule on voluntariness (they will observe for themselves the suspect’s physical and mental state, the conditions of custody, and the interro- gation tactics that were used), and juries, who must ren- der a verdict (they will see how the statement was taken and from whom the crime details originated). Importantly, interrogations should be videotaped with an “equal focus” visual perspective, showing both the accused and the interrogators. In numerous studies, Daniel Lassiter and colleagues have found that lay people, juries, and even trial judges are more attuned to the situational factors that draw confessions when the interrogator is on camera than when the sole focus is on the suspect. Julia C. Busso and Saul M. Kassin See also False Confessions; Interrogation of Suspects; Videotaping Confessions Confession Evidence ———137 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 137 Further Readings Kassin, S. M., & Sukel, H. (1997). Coerced confessions and the jury: An experimental test of the “harmless error” rule. Law and Human Behavior, 21, 27–46. Lassiter, G. D., Geers, A. L., Handley, I. M., Weiland, P. E., & Munhall, P. J. (2002). Videotaped confessions and interrogations: A change in camera perspective alters verdicts in simulated trials. Journal of Applied Psychology, 87, 867–874. C ONFIDENCE IN I DENTIFICATIONS The confidence that eyewitnesses express in their deci- sion at an identification test or lineup has long been rec- ognized within the criminal justice system as an indicator of the likely reliability or accuracy of the wit- ness. In contrast, psychology researchers have down- played the diagnostic value of eyewitness identification confidence. Although only a relatively small proportion of the variance in identification accuracy is associated with variance in confidence, recent research using what is known as a confidence-accuracy (CA) calibration procedure suggests that confidence—measured imme- diately after the identification decision—can provide a useful (but not infallible) pointer for crime investigators to the likely accuracy of positive but not negative (i.e., lineup rejections) lineup decisions. This conclusion definitely does not apply, however, to confidence judg- ments expressed in the courtroom as, by this time, there has been an opportunity for postidentification influ- ences (such as feedback from lineup administrators or other witnesses) to shape any subsequent confidence judgments. Nor is the conclusion applicable to judg- ments expressed by witnesses prior to having viewed a lineup. A major challenge for future research in this area will be to define the boundary conditions for obtaining robust CA calibration, which, in turn, will enhance the capacity to diagnose the likely accuracy of identification decisions. Eyewitnesses will often provide some sort of expression of confidence in their memory when they examine a police lineup or photo spread or when they testify in court about the identity of the offender. Their degree of confidence is known to exert a strong influ- ence on assessments made by the police, lawyers, and jurors about the likely reliability of their testimony. Yet it is known that eyewitness confidence is sometimes an extremely misleading cue to the likely accuracy of an identification. The following sections examine when identification confidence is informative about the offender’s identity and when it is likely to mislead. Eyewitness confidence has been of major interest because confidence is an easily obtainable index that could potentially provide a guide for the criminal justice sector as to the likely reliability of an eyewit- ness identification response. Given the crucial role that identifications can play in some investigations and trials, together with the overwhelming evidence of eyewitness fallibility provided by DNA exonera- tion cases and experimental simulations of identifi- cation tests, knowing how much weight should be attached to witnesses’ confidence estimates is an important forensic issue. Even prior to attending an identification test, wit- nesses may express a particular degree of confidence in their capacity to identify the offender, with the con- fident witness likely to impress police investigators. These assessments are likely to be influenced by a variety of factors such as witnesses’ evaluations of the strength of the memorial image for the offender, their recollections of the quality of view they had of the offender at the time of the crime, their perceptions of how good a recall they displayed when interviewed by the police, and so on. To date, there is no evidence to indicate that such preidentification test confidence assessments should be considered as a guide to the likely accuracy of an identification. Factors for and Against a Confidence-Accuracy Relationship There is now a sizable literature on the relationship between confidence, when expressed after an identifi- cation decision, and identification accuracy. Researchers have mounted compelling arguments both for and against expecting a strong relationship between identi- fication confidence and accuracy. For example, in recog- nition memory theories and research, the strong link between memory signal strength and recognition accuracy and confidence provides firm grounds for expecting a meaningful CA relationship. Furthermore, witnesses with very strong memories of the offender are likely to make a rapid identification, with the appar- ent ease or speed of the identification providing a potentially reliable cue to confidence. Other support comes from research on psychophysical discrimina- tion, indicating that confidence may well regulate, rather than be a result of, the decision process. 138 ———Confidence in Identifications C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 138 Arguments against a strong CA relationship have, however, been much more consistently advanced, with these views reinforced by demonstrations of overcon- fidence in various domains of human judgment. Some of the grounds for questioning a meaningful CA rela- tionship include our (a) inability to review all factors that should shape confidence; (b) tendency to focus too heavily on confirmatory evidence for a decision; © problems with translating subjective judgments of confidence into some kind of numerical confidence value; (d) reliance on cues to confidence that, while sometimes veridical, may also be misleading (e.g., a face in a lineup may seem very familiar not because it is that of the offender but because it had been seen in the context of the event previously, or witnesses may infer that the face in the lineup that seems most famil- iar must be the offender because they got an excellent view of the offender at the crime); and (e) almost inevitable exposure to postidentification social influ- ences that produce malleable confidence judgments. Confidence-Accuracy Correlation For some time the dominant view among eyewitness memory researchers has been that postidentification confidence does not provide a particularly informative guide to the likely accuracy of an identification deci- sion. It has been generally accepted that the CA rela- tionship is best described as lying between weak (at worst) to modest (at best) for witnesses who make a positive identification (i.e., choosers) from either a culprit-present lineup or a culprit-absent lineup— indicated by CA correlations that seldom exceed 0.3— and virtually nonexistent (correlations around 0) for witnesses who reject either of these lineups (non- choosers). Note, however, that the correlations for choosers have been shown to be higher when, for example, (a) the encoding and test stimuli have been allowed to vary as they do in the real world, (b) stimu- lus encoding conditions were optimal, and © wit- nesses were encouraged to be self-aware with respect to their preidentification decision behaviors by being asked to view a video of their own identification deci- sion before giving a confidence assessment. Although the finding of a modest CA correlation is clearly a reliable one, it does not provide the complete picture regarding the CA relationship. This requires supplementing the correlation between confidence and the identification decision outcome (accurate, inaccu- rate) with an examination of other characteristics of the CA relation—specifically, an examination of CA calibration and patterns of overconfidence/ underconfidence. The correlation coefficient reflects the variance in decision accuracy associated with vari- ations in confidence. For the eyewitness identification paradigm, which typically involves a witness making a single identification decision, this therefore reflects variance explained at the level of the group but is not informative about the likely accuracy of a witness’s decision accompanied by a specific level of confidence (e.g., 70% confident or 90% confident). Information about the latter is, however, obtainable by applying the calibration approach to the examination of the CA relationship and, since the late 1990s, a number of studies of the CA relationship in eyewitness identifica- tion have used this approach. Confidence-Accuracy Calibration At a conceptual level, the procedure is quite simple, with the proportion of accurate identification decisions determined for each level of identification confidence (10%, 20%, etc.). This provides the basis for plotting a calibration curve and the derivation of calibration, overconfidence/underconfidence, and resolution statis- tics. Inspection of the calibration curve provides a direct indication of the levels of identification accuracy expected in association with varying degrees of confi- dence; for example, judgments made with 100% con- fidence might be characterized by 85% accuracy. Perfect calibration is, of course, characterized by 0% accuracy at 0% confidence, 10% accuracy at 10% con- fidence, right through to 100% accuracy at 100% con- fidence. Any departure from perfect calibration is not only illustrated by comparing the obtained and ideal calibration curves but can also be captured in a cali- bration statistic (varying from 0 to 1, with 0 indicat- ing perfect calibration) and an overconfidence/ underconfidence statistic (varying from 0 ± 1, with increasing positive and negative departures from 0 denoting increasing overconfidence and underconfi- dence, respectivel y). In addition to the guide provided by the calibration procedure to the likely accuracy of identification decisions made with particular levels of confidence, it also provides a resolution statistic that (like the correlation coefficient) indicates variance in decision accuracy associated with confidence. A number of studies have now applied the calibra- tion approach to the study of the CA relation within the eyewitness identification paradigm. While these Confidence in Identifications ———139 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 139 studies have sampled only a limited range of forensi- cally relevant variables and, indeed, a limited array of levels on each of those variables, they have at least used several different sets of stimulus materials and events (including both central and peripheral targets) that have given rise to different rates of correct and false identifications, different retention intervals between encoding and test (with the longest being 1 week); varied the similarity of lineup targets and foils; and varied the lineup instructions. Studies with adult participants have presented cali- bration curves, for positive identification responses (or choosers), that roughly parallel the ideal calibration curve. In other words, as confidence increases so too does accuracy in a systematic manner, a pattern not suggested by the typically modest CA correlations reported in these same studies. Generally, however, the curves indicate some degree of overconfidence, with accuracy rates at the high end of the confidence scale (i.e., 90% to 100% confident) typically around the 75% to 90% level. In contrast, no such systematic pat- terns have been detected for participants who rejected the lineup (i.e., nonchoosers). Three other findings are also noteworthy. First, in association with confidence estimates of 90% to 100%, diagnosticity ratios— indicating the ratio of hits to false alarms—were sub- stantially higher than for lower confidence estimates. Second, participants whose identification responses were very fast were better calibrated than those whose identifications were slow. The latter finding is to be expected given that participants with an exceptionally strong memory for the culprit should not only identify the culprit when present in the lineup, and be appropri- ately confident, but should also be less likely to falsely identify an innocent suspect, thereby reducing the like- lihood of confident, incorrect responses. Third, there is some evidence that interventions designed to improve adults’ scaling of confidence judgments (by causing them to reflect carefully on the encoding and identifi- cation test conditions or the possibility that their iden- tification decision could be mistaken) can reduce overconfidence and improve CA calibration. It is encouraging that similar patterns of CA cali- bration findings have also been reported in a number of studies using various forms of a face recognition paradigm, the basic requirement of which is to judge whether or not faces presented at test had been among an array of faces that had previously been presented in a study phase. Specifically, these studies have demon- strated robust CA calibration for positive (but not negative) decisions in both absolute and relative judgment versions of the face recognition paradigm, but with overconfidence more pronounced as task dif- ficulty increased (e.g., shorter stimulus exposure dura- tions at either study or test). One feature of the calibration studies that must be highlighted is that the confidence judgments from participant witnesses were obtained immediately after the identification response, thereby ensuring that they were not affected by any postidentification influences (e.g., from the lineup administrator or other witnesses) that are known to exert a profound influence on confidence judgments quite independent of the accuracy of the identification response. Thus, while the calibration studies illustrate meaningful CA relations, eyewitness researchers are in strong agree- ment that confidence assessments provided after some delay (e.g., in the courtroom) are potentially highly misleading about the likely accuracy of an identification. Not all the evidence on the CA relation obtained with the calibration approach is positive about the CA relation. For example, research done with samples of children aged 10 to 13 years highlights poor CA cali- bration and extreme overconfidence, illustrated by accuracy rates sometimes as low as 30% in associa- tion with confidence judgments of 90% to 100%. Furthermore, children’s overconfidence in their iden- tifications has, thus far, proven resistant to interven- tions designed to reduce it. Applied Implications While there is still much to be done in terms of testing the generality of findings obtained via the calibration approach across a variety of forensically relevant con- ditions, the present findings are, nevertheless, impor- tant from an applied perspective. As indicated earlier, while the CA correlation addresses the group-level variance in accuracy explained by confidence, the cal- ibration approach provides the additional insight into the likely accuracy of particular identifications made with some specific level of confidence. The available data strongly suggest that police investigators should pay close attention to witnesses’ confidence estimates solicited at the time of the identification and, hence, not subject to any social influence. Specifically, extremely confident (and rapid) identifications of the suspect in the lineup, while by no means guaranteed to be accurate, should signal to police investigators that there is a very real chance that the suspect is the culprit and, thus, stimulate a closer search for supportive 140 ———Confidence in Identifications C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 140 evidence. When, however, the identification of the suspect is not made with extremely high confidence, and is perhaps made in a ponderous manner, it should signal real doubts about whether the suspect is the cul- prit and act as a reminder to investigators that they should strongly consider alternative hypotheses about the culprit’s identity. In contrast, investigators should not attempt to interpret the likely accuracy of wit- nesses’ rejections of a lineup based on the associated confidence levels. Although lineup rejections have diagnostic value with respect to the guilt or innocence of the suspects, the witnesses’ confidence levels do not assist in that diagnosis. Encouragingly consistent with these conclusions that are based on experimental simulations are some analyses of findings from real criminal cases. In this archival work, when there was strong incriminating (nonidentification) evidence against a suspect (which admittedly does not prove that the suspect was the culprit), very confident witness identifications much more strongly pointed to the police suspect than to the innocent lineup foils. Barriers to the Use of the Calibration Approach Application of the calibration approach to the study of the CA relation in eyewitness identification has clearly been valuable. Unfortunately, there is one major obstacle to the more widespread application of the approach. As the published work shows, use of this approach in the eyewitness identification context requires extremely large sample sizes. The typical eyewitness identification task simulates the real-world investigation: The witness observes a crime, views a lineup, and either makes a positive identification or rejects the lineup. In other words, only one data point is provided by each participant witness. However, sta- ble calibration curves and statistics (for choosers or nonchoosers) require approximately 200 to 300 data points for each experimental condition examined. Thus, the existing published studies with an identifi- cation paradigm are characterized by sample sizes considerably in excess of what many laboratories find practical to achieve. In contrast, an old-new f

bundet

ace recognition paradigm allows for a large number of repeated measures and, in turn, derivation of calibra- tion statistics for each participant. One consequence of this sample size problem is that future research into how calibration varies over forensically relevant con- ditions is likely to proceed quite slowly. Confidence Malleability The issue of social influences on identification confi- dence and the malleability of confidence have already been mentioned—and these issues are also discussed specifically elsewhere. Some further discussion of these issues is required here, however, to round out the discussion of identification confidence. As has been indicated, the empirical evidence shows that witness confidence judgments are informa- tive about the likely accuracy of positive identification decisions if they are solicited at the time of the identi- fication. But from the time of the identification through to the end of a trial, witnesses may have a variety of further interactions with the police, other witnesses, and lawyers, culminating often in a court- room appearance. Although none of these interactions can have any bearing on the accuracy of the decision that was indicated at the identification test, they do have the potential to influence significantly any subse- quent expression of confidence in that decision. This may mean, for example, that any confidence judgment expressed in the courtroom may be quite different from the one that was made at the time of the actual identification test. In turn, whereas confidence at the time of the identification decision may be informa- tive about identification accuracy, these subsequent expressions of confidence may not be. Some of the key variables that have been shown to influence postidentification judgments of confidence include confirming and disconfirming feedback about the accuracy of the identification provided, for exam- ple, by a lineup administrator or another witness. This feedback may be in the form of explicit verbal feed- back from one of these sources or may involve more subtle verbal or nonverbal cues. Regardless of when and how the feedback is delivered, its impact will be to make a witness appear more credible or believable if it is confirming feedback and thus inflates confidence or less credible if it disconfirms and deflates confidence. In other words, cues that can affect confidence judg- ments but not the underlying judgmental accuracy can render a witness more or less believable to jurors. Thus, a witness who falsely identifies an innocent police suspect may not be particularly confident at the time of making an identification but may be exception- ally confident at some later stage in a courtroom. It is for these reasons that eyewitness researchers have strongly endorsed the collection of any assessments of confidence at the time of the identification—for it is then that the confidence judgments are maximally Confidence in Identifications ———141 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 141 informative about accuracy—and have little faith in the probative value of identification confidence judg- ments that witnesses may express in the courtroom. Neil Brewer See also Confidence in Identifications, Malleability; Optimality Hypothesis in Eyewitness Identification; Response Latency in Eyewitness Identification Further Readings Brewer, N. (2006). Uses and abuses of eyewitness identification confidence. Legal and Criminological Psychology, 11, 3–24. Brewer, N., & Wells, G. L. (2006). The confidence-accuracy relationship in eyewitness identification: Effects of lineup instructions, foil similarity and target-absent base rates. Journal of Experimental Psychology: Applied, 12 , 11–30. Cutler, B. L., & Penrod, S. D. (1989). Forensically relevant moderators of the relation between eyewitness identification accuracy and confidence. Journal of Applied Psychology, 74, 650–652. Juslin, P., Olsson, N., & Winman, A. (1996). Calibration and diagnosticity of confidence in eyewitness identification: Comments on what can be inferred from the low confidence- accuracy correlation. Journal of Experimental Psychology: Learning, Memory, and Cognition, 22 , 1304–1316. Kassin, S. M., Tubb, V. A., Hosch, H. M., & Memon, A. (2001). On the “general acceptance” of eyewitness testimony research: A new survey of the experts. American Psychologist, 56 , 405–416. Keast, A., Brewer, N., & Wells, G. L. (in press). Children’s metacognitive judgments in an eyewitness identification task. Journal of Experimental Child Psychology. Lindsay, D. S., Read, J. D., & Sharma, K. (1998). Accuracy and confidence in person identification: The relationship is strong when witnessing conditions vary widely. Psychological Science , 9 , 215–218. Sporer, S. L., Penrod, S. D., Read, J. D., & Cutler, B. L. (1995). Choosing, confidence, and accuracy: A meta-analysis of the confidence-accuracy relation in eyewitness identification studies. Psychological Bulletin, 118, 315–327. C ONFIDENCE IN I DENTIFICATIONS , M ALLEABILITY Eyewitnesses are often asked to indicate how confi- dent they are in the accuracy of their identification and other testimony-relevant judgments. These reports are highly influential in evaluations of identification accu- racy. Unfortunately, eyewitnesses’ confidence reports are highly malleable, easily influenced by myriad variables. The solution is to record witnesses’ confi- dence in their identification and report of crime details immediately, so as to preserve whatever useful infor- mation confidence provides. A witness’s confidence in the accuracy of his or her identification is perhaps the most studied of all vari- ables related to eyewitness decision making—for good reason. Eyewitness confidence is the most intu- itively appealing variable for use in assessments of accuracy. Indeed, it is specially highlighted by the U.S. Supreme Court for use in such evaluations. This recommendation is consistent with lay assumptions of what variables predict identification accuracy: People believe that a confident witness is an accurate one. This assumption does have empirical support. Under certain circumstances, there is a strong, positive corre- lation between confidence and accuracy. For example, when viewing conditions are disparate, a strong con- fidence-accuracy relationship emerges: Witnesses who see a culprit under difficult viewing conditions are less confident compared with those who see a cul- prit under optimal viewing conditions. Other research confirms the existence of a useful relationship between confidence and accuracy. One meta-analysis deter- mined that the confidence-accuracy correlation for witnesses who made choices from lineups or photo spreads was moderate ( r = .41). These investigations are highly valuable in clarifying the maximum possi- ble utility of confidence reports in assessing accuracy. These investigations capture confidence reports under the best possible circumstances. Because no external variables have been introduced (e.g., photo- spread administrator influence), they are, in some sense, pure measures of the extent to which confi- dence is related to accuracy. Therefore, it is possible to think of these confidence reports as the estimator versions of this variable because they derive from fac- tors outside the control of the justice system. For example, the system cannot ensure that a witness has a good view of the culprit. Therefore, to the extent that the quality of the witness’s view determines how con- fident he or she is, the justice system has no hand in a witness’s confidence. In other ways, the justice system has a substantial role in the level of confidence an eyewitness expresses in his or her identification. This influence is driven by 142 ———Confidence in Identifications, Malleability C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 142 system variables—those variables the justice system can control. Many system variables have been impli- cated in confidence inflation. This influence has been demonstrated across three different categories of con- fidence reports: current confidence in the identifica- tion decision (e.g., How confident are you in the accuracy of your identification right now?), retrospec- tive confidence in the identification decision (e.g., How confident were you when you made your identi- fication?), and reports about details of the witnessed event (e.g., What kind of disguise was the culprit wearing?). As described below, the malleability of confidence in each of these three categories can be attributed to system variables. Confidence in Reports of Crime Details Although confidence malleability is most prominently studied in relation to identification accuracy, some researchers have focused on its malleability in the con- text of crime detail recollections. In one investigation, eyewitnesses questioned over the course of 5 weeks reported significantly elevated confidence levels at the end of that period, without any corresponding increase in the accuracy of their reports. The same elevation occurred when eyewitnesses were questioned over the course of 5 days. In addition, a manipulation as simple as the context in which a confidence report is given can influence the magnitude of an eyewitness’s certainty. Witnesses who give reports about crime details in pub- lic provide significantly lower confidence ratings than do those witnesses who give reports privately, even though the accuracy in both groups is equivalent. The number of times a witness is interviewed and the con- text of the interview are both variables under the con- trol of the investigating officers to a certain extent. Current Confidence in Identification Accuracy In many crimes, many people witness the same event. Some of the crimes for which innocent people were wrongfully convicted include up to five individuals all identifying the same person. In one of the most elabo- rate empirical examinations of the effect of cowit- nesses, witnesses saw a live staged crime in pairs. Witnesses were then separated for the identification attempt and confidence report. Finally, witnesses were randomly assigned to learn one of four types of infor- mation about their cowitness’s decision. Those who learned that their cowitness identified the same person they did or identified an implausible other reported the highest levels of confidence. Those who learned that their cowitness either identified someone else or did not make an identification all had confidence levels that were significantly lower than witnesses in a con- trol (no cowitness information) condition. Information from a cowitness can also alter confidence in reports of crime details. In one study, witnesses’ confidence in whether an accomplice was present at the scene of a crime changed depending on their partner’s report of whether that accomplice was present. The justice sys- tem has limited control of whether cowitnesses speak to one another. At the very least, cowitnesses should be separated until each has provided an identification decision, complete report of crime details, and indi- cated the confidence in each judgment. Cowitnesses are not the only source of contamina- tion for current confidence reports. Photospread administrators have long been targeted as a potential source of influence in eyewitnesses’ decisions. Initially, concerns centered on the ability of a photospread administrator to affect an eyewitness’s choices; research does suggest this is a worthy concern. Recently, how- ever, concerns have expanded to include the problem of administrators influencing an eyewitness’s confi- dence. In one demonstration of this problem, eyewit- nesses attempted identifications in two conditions. In one condition, the photospread administrator knew who the suspect was. In the other condition, the photo- spread administrator did not know who the suspect was. Eyewitnesses who made identifications under the first condition reported higher confidence in their accuracy than did eyewitnesses who made identifica- tions in the second condition. The influence inherent in this situation is easily solved by ensuring that the per- son administering a set of photos to an eyewitness does not know who the suspect it; the system can control whether this safeguard is adopted. Retrospective Confidence in Identification Accuracy Malleability in retrospective confidence reports is per- haps the most problematic of the three categories, in part because this category is specifically highlighted by the U.S. Supreme Court for use in determining accuracy. The Court indicates that the relevant confi- dence report is from the “confrontation,” suggesting that they recognized the possibility for confidence to Confidence in Identifications, Malleability ———143 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 143 increase over time. Unfortunately, profound distor- tions in witnesses’ memories of how confident they were at the time of the identification are easy to create with postidentification feedback. Witnesses who hear that their identification was correct report remember- ing with greater certainty at the time of the identifica- tion compared with witnesses who heard nothing about their accuracy. Because this effect occurs for eyewitnesses who have made false identifications, the manipulation produces a set of highly confident, but wrong, eyewitnesses. As with the other system vari- ables described above, this one has an easy solution. If confidence reports are collected immediately after an identification is made, eyewitnesses’ confidence reports will not be vulnerable to influence by the photospread administrator. Implications of Confidence Malleability As noted above, there is a nontrivial, positive relation- ship between confidence and accuracy under certain circumstances. However, because confidence is mal- leable, the significant relationship between the two variables can easily be compromised or even elimi- nated. One way in which the confidence-accuracy cor- relation is eliminated is by suggesting to witnesses that they prepare for cross-examination. In such a sit- uation, witnesses who have made inaccurate identifi- cations often inflate their confidence to the point where their confidence is indistinguishable from that of accurate witnesses. Postidentification feedback has a similarly devastating effect on the confidence- accuracy correlation: Witnesses who hear that their identification was correct report equivalent levels of confidence, regardless of whether their actual identifi- cation was accurate or inaccurate. The implications of confidence inflation are pro- found because a witness’s confidence in the accuracy of his or her identification carries enormous weight in judgments of accuracy, often trumping other variables. In one set of studies, mock jurors were provided with information about 10 variables, all of which influence identification accuracy (e.g., the culprit’s disguise). None of the 10 variables influenced mock jurors’ assessments except confidence. In another experiment, jurors who participated disregarded the quality of a witness’s view, evaluating him or her positively as long as confidence was high. This reliance on confidence is unproblematic except that eyewitnesses routinely produce highly confident reports about identifications that are incorrect. Ample real-world evidence suggests that this is a significant problem. Many individuals exonerated by DNA evidence were convicted on the basis of confident eyewitness identifications. Future Research on Confidence Malleability Even though confidence malleability is a well-studied phenomenon, there are many unanswered questions. For example, researchers do not yet know for how long confidence is malleable. Some research suggests that postidentification feedback still influences ret- rospective certainty reports even when it is given 48 hours after an event is witnessed. These results are provocative—suggesting that confidence may be mal- leable for extended periods of time. However, because few studies include manipulations of time, the extent to which confidence is malleable is not well under- stood. The reason for the susceptibility of confidence to external influences is also not well understood. One contributing factor may be that confidence reports are derived from many sources. One other factor is undoubtedly the extent to which the stimulus matches the witness’s memory (i.e., ecphoric similarity). Another factor is the desire of witnesses to determine whether their judgment is correct (i.e., the desire for informational influence). In at least one study, the ten- dency to conform eyewitness decisions to others was highest when the witnessing conditions made identifi- cation difficult (i.e., the stimulus was in view for a very short time) and the task was important. Remedies for Confidence Malleability The most obvious remedy for confidence inflation is to record witnesses’ reports immediately after an iden- tification is made or a crime is reported. This solution is appealing for three reasons. First, providing a con- fidence report may in fact inoculate witnesses against future inflations. In one study, witnesses who pro- vided a private retrospective confidence report were less affected by postidentification feedback than were witnesses who did not. Second, records of confidence reports would allow defense attorneys to challenge subsequent inflation through cross-examination at trial. This is likely to be difficult, as one study demonstrated that mock jurors are resistant to attempts to undermine a witness’s confidence report 144 ———Confidence in Identifications, Malleability C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 144 by providing evidence that it has inflated over time. Finally, recording confidence is easy. It does not require specialized equipment or training. It can eas- ily be incorporated into interviews with witnesses. Should immediate confidence reports not be recorded, another common suggestion is to introduce expert testimony on the malleability of confidence. This solution is less appealing because research has demonstrated that mock jurors are relatively insensi- tive to testimony impugning the correlation between confidence and accuracy. In some studies, jurors per- sist in using confidence reports even after being told that they are only minimally useful in assessing accu- racy. Therefore, the most reasonable solution is to pre- vent eyewitnesses’ confidence from inflating in the first place. The best way to do this is to collect imme- diate records of confidence reports in both identifica- tion accuracy and crime details. Amy Bradfield Douglass See also Confidence in Identifications; Estimator and System Variables in Eyewitness Identification; Expert Psychological Testimony on Eyewitness Identification; Eyewitness Memory; Identification Tests, Best Practices in; Juries and Eyewitnesses; Neil v. Biggers Criteria for Evaluating Eyewitness Identification; Postevent Information and Eyewitness Memory; Wrongful Conviction Further Readings Baron, R. S., Vandello, J. A., & Brunsman, B. (1996). The forgotten variable in conformity research: Impact of task importance on social influence. Journal of Personality and Social Psychology, 71 (5), 915–927. Bradfield, A., & McQuiston, D. E. (2002). When does evidence of eyewitness confidence inflation affect judgments in a criminal trial? Law and Human Behavior, 28 (4), 369–387. Bradfield, A. L., Wells, G. L., & Olson, E. A. (2002). The damaging effect of confirming feedback on the relation between eyewitness certainty and identification accuracy. Journal of Applied Psychology, 87 (1), 112–120. Lindsay, S. D., Read, J. D., & Sharma, K. (1998). Accuracy and confidence in person identification: The relationship is strong when witnessing conditions vary widely. Psychological Science, 9 (3), 215–218. Luus, C. A. E., & Wells, G. L. (1994). The malleability of eyewitness confidence: Co-witness and perseverance effects. Journal of Applied Psychology, 79, 714–724. Sporer, S., Penrod, S., Read, D., & Cutler, B. L. (1995). Choosing, confidence, and accuracy: A meta-analysis of the confidence-accuracy relation in eyewitness identification studies. Psychological Bulletin, 118, 315–327. C ONFLICT T ACTICS S CALE (CTS) Two general types of incidence surveys exist: the Conflict Tactics Scale (CTS) and the Crime Victim Surveys (CVS). The former requires people to indicate what actions they have taken to resolve family con- flicts; the latter requires people to indicate by what crimes they have been victimized. The CVS find the rates of reporting wife assault to the police comparable with the reporting rates for other assaults. However, these surveys have a filtering problem such that people who do not consider their abuse victimization to be a crime do not respond in the affirmative. Hence, inci- dence rates of reported spousal abuse, which are not defined as criminal by the victim, are low. To circum- vent this filtering problem, Straus, Gelles, and Steinmetz devised the CTS, which asks respondents to report modes of conflict resolution in the family. This avoids the problem of whether the respondent defines the action as criminal or not and, therefore, attempts to obtain more accurate estimates of the frequency and incidence of domestic assault in a general population. Straus found violence incidence rates with the CTS were 16 times greater than with the CVS. Presenting the CTS in the context of normal conflict rather than a criminal act reduces filters against reporting. Surveys of Incidence: Conflict Tactics Surveys Several surveys using the CTS have been completed. They include (a) a nationally representative U.S. sam- ple of 2,143 interviewed in 1974 by Response Analysis Corporation; (b) a survey of spousal violence against women in the state of Kentucky, which interviewed 1,793 women; © a second national survey completed by Straus and Gelles in 1985; and (d) a sample of 1,045 for the Province of Alberta, Canada. These were each obtained by a survey that interviews a representa- tive sample drawn from a general population about experiences of being victimized by violence during family conflicts and the type of actions used to resolve Conflict Tactics Scale (CTS) ———145 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 145 these conflicts. These rates refer to the use of violence at any time in the marriage and may include both uni- lateral and reciprocal violence. Straus reported approx- imately equal perpetration rates by gender. This common measure enables some direct comparison between these surveys. Kennedy and Dutton used a combination of face-to- face meeting and random-digit dialing techniques to survey 1,045 residents in Alberta, Canada, leading to a comparison of American and Canadian rates of wife assault. The “minor” violence rates for the two coun- tries are virtually identical, but the American “severe violence” rates were higher than the Canadian rates. By way of comparison with these North American data, Kim and Cho reported that the Korean intimate partner violence rate was 37.5% for wife assault (any violence) in the preceding year versus 11.6% reported by Straus et al. In 1985, Fumagai and Straus found a lifetime incidence of wife assault in Japan of 58.7% versus 22% in the United States. Fals-Stewart, Birchler, and Kelley asked 104 men in a spousal violence treatment program and their partners to keep a weekly diary identifying days of physical aggression and a daily CTS checklist for vio- lence. Male-to-female agreement on “violence days” was better after treatment than before, perhaps because couples were aware of tracking. Interestingly, the women were violent on more days than the men, regardless of whose report was read. Moffitt et al. confirmed Straus’s point in one of the best methodological studies of intimate violence to date, the Dunedin study. When asked about “assault victimization,” they found that respondents reported rates of male violence that were much higher than the rates of female violence, and both rates were quite low. When they asked the same respondents about “relationships with partners,” the rates reported by both genders were much higher and equivalent. Criticisms Some criticisms have been made about the CTS: (a) the CTS ignores the context in which the violence occurred, (b) differences in gender size between men and women make acts scored the same on the CTS quite different in reality, © impression management or social desirability factors may preclude people from answering the CTS accurately, and (d) the CTS queries violence occurring in a conflict and may miss “out of the blue” violence. Straus’s rejoinders to these criticisms are as fol- lows. First, the assessment of context should be done separately because there are so many context vari- ables that they could not all be included on the CTS. The CTS is designed in such a way that any special set of context questions can be easily added. Second, a similar problem, Straus notes, is that repeated slap- ping is highly abusive and dangerous but gets counted as Minor Violence on the CTS. Straus argues that while it is possible to weight actions by differences in size between perpetrator and victim, or to construct an upper limit after which slapping gets counted as Severe Violence, such weightings have rarely led to changes in research results. Third, the social desir- ability criticism was answered, in part, by a study by Dutton and Hemphill, which correlated scores on two measures of social desirability (the tendency to pre- sent a “perfect image” on self-report tests) and scores on the CTS. Social desirability is measured by a test called the Marlowe-Crowne test (MC), which assesses the tendency to present the self in a socially acceptable manner. MC scores did correlate signifi- cantly; the higher their social desirability score, the lower their reported rates of verbal abuse. However, it did not correlate with their reports of physical abuse, nor with any reports of abuse (verbal or physical) made against them by their wives. Hence, it seems that reports of physical abuse are largely uncontami- nated by socially desirable responding. This means that the incidence survey rates are probably fairly accurate as far as image management is concerned. Finally, the vast majority of violent acts are perceived as emanating from conflict. While the CTS may miss an out-of-the-blue attack, it more than makes up for this with its increased sensitivity over crime victim surveys. Donald G. Dutton, Jessica Broderick, and Makenzie Chilton See also Domestic Violence Screening Instrument (DVSI); Intimate Partner Violence; Spousal Assault Risk Assessment (SARA) Further Readings Browning, J., & Dutton, D. G. (1986). Assessment of wife assault with the Conflict Tactics Scale: Using couple data to quantify the differential reporting effect. Journal of Marriage and the Family, 48, 375–379. 146 ———Conflict Tactics Scale (CTS) C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 146 Straus, M. A., & Gelles, R. J. (Eds.). (1990). Physical violence in American families. New Brunswick, NJ: Transaction. Straus, M. A., Hamby, S. L., & Boney-McCoy, S. (1996). The revised Conflict Tactics Scales (CTS2): Development and preliminary psychometric data. Journal of Family Issues, 17, 283–316. C ONFORMITY IN E YEWITNESS REPORTS Eyewitness research has repeatedly shown that exposure to postevent information can affect a witness’s ability to accurately report details of an originally encoded event. In everyday life, postevent information might be encountered when individuals who have shared the same experience discuss this with one another. Even when each person has witnessed the same event, their memories are likely to differ because of naturally occur- ring differences in the details attended to at the time, as well as differences in each person’s ability to accurately remember those details. Despite initial differences in recollections of an event, when people talk about their memories they can influence each other such that their subsequent individual memory reports become similar. The phenomenon of people’s memory reports becoming similar to one another’s following a discussion has been referred to as “memory conformity.” This entry dis- cusses the ways in which researchers have investigated conformity in eyewitness reports, typical research find- ings, and current theoretical explanations for the mem- ory conformity effect. When memory conformity occurs in the context of a forensic investigation, there can be serious implica- tions. For example, it might be assumed that seem- ingly corroborative witness statements are a product of independent witnesses with consistent versions of events, when in fact memory conformity might be responsible for the similarities if there has been some form of interaction between cowitnesses. Therefore, it is important that the police take care not to give undue weight to the consistency of statements from wit- nesses who may have talked when judging the accu- racy of an eyewitness account. A typical paradigm used to investigate memory conformity in eyewitness reports involves pairs of par- ticipants being led to believe that they have encoded the same stimuli (often a simulated crime event shown on video or slides), when in reality they are shown stimuli that bear a similarity but differ in critical ways. These critical differences can take the form of added items (where one dyad member sees an item that his or her partner did not and vice versa) or contradicting items (where both dyad members see the same item, but details of this item differ in terms of color or prod- uct). This manipulation allows different features of the encoded stimuli to be observed by each partici- pant. Dyad members are then given time to discuss what they have seen. An individual recall test for the originally encoded stimuli is then administered to examine the effects of cowitness discussion on mem- ory. The dependent variable of interest is whether, and how often, witnesses report an item at test that they have encountered from a cowitness as opposed to see- ing with their own eyes. Alternative procedures to investigate memory con- formity include using a confederate to act as a cowit- ness and purposefully introduce items of misleading postevent information into the discussion. Other experiments have presented cowitness information indirectly by incorporating it into a recall question- naire, or the experimenter reveals responses that have purportedly been given by other witnesses. A common finding for memory conformity research, regardless of procedure or stimuli used, is that social influences encountered in the form of postevent infor- mation from a cowitness can mediate accuracy in joint recall and recognition tasks, with individuals often exhibiting conformity to the suggestions and judg- ments of others. Significant conformity effects are also evident following a delay in postdiscussion mem- ory tests that are performed alone. Theoretical explanations for conformity in eyewit- ness reports share strong parallels with those account- ing for the effects of postevent information on memory. For example, research has shown that source misattributions account in part for conformity in eye- witness reports, as individuals sometimes claim to remember seeing items of information that have actu- ally been encountered from a cowitness. Informational motivations to report accurate information at test are also thought to play a role. Here, individuals choose to report the postevent information encountered from a cowitness at test if it is accepted as veridical. Informational motivations to conform are often evident in situations where individuals doubt the accuracy of their own memory or when the information encoun- tered from another individual convinces them that their initial judgment was erroneous. In support of this, Conformity in Eyewitness Reports ———147 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 147 research has found that the influence exerted by one person on another’s memory judgments can be modu- lated by person perception factors. For example, ten- dencies to conform can be increased (or decreased) by manipulating the perceptions of each individual regarding the relative knowledge each has of stimuli they encoded together as a dyad. Similar effects can be obtained by manipulating the perceived relative com- petence of each individual or the overt confidence with which individuals make their assertions to each other. Research continues to explore which factors can increase, decrease, and possibly eliminate the longer- term effects of conformity on memory. However, progress in addressing such issues has been hampered by the complexity of the phenomenon itself, due to the inherently dynamic and variable nature of realistic interactions between individuals. Despite this, new par- adigms to investigate conformity in eyewitness reports are being developed and refined so that the effects of naturalistic interactions on subsequent memory reports can be investigated with full experimental control. Fiona Gabbert See also Eyewitness Memory; False Memories; Postevent Information and Eyewitness Memory; Source Monitoring and Eyewitness Memory Further Readings Gabbert, F., Memon, A., & Allan, K. (2003). Memory conformity: Can eyewitnesses influence each other’s memories for an event? Applied Cognitive Psychology, 17, 533–543. Roediger, H. L., Meade, M. L., & Bergman, E. T. (2001). Social contagion of memory. Psychonomic Bulletin & Review, 8, 365–371. Shaw, J. S., Garven, S., & Wood, J. M. (1997). Co-witness information can have immediate effects on eyewitness memory reports. Law and Human Behavior, 21, 503–523. Wright, D. B., Self, G., & Justice, C. (2000). Memory conformity: Exploring misinformation effects when presented by another person. British Journal of Psychology, 91, 189–202. C ONSENT TO C LINICAL R ESEARCH Informed consent practices have evolved over time after instances were documented in which research participants were not treated fairly or respectfully, were not informed, or were subjected to unnecessary harm. Current federal regulations support the ethical treat- ment of persons in the research setting in that the par- ticipation is voluntary, that the risks outweigh the benefits, and that all people are given an equal chance to participate. When a researcher invites a participant into the research setting, the researcher is required to provide the necessary information, to ensure that the participant fully understands the information, and to stop the research if it is felt that these standards have not been met. Prior to enrollment in a research study, that candi- date must provide valid consent for participation. That is, the participant must be fully informed about the research purposes, risks, benefits, freedom to withdraw consent, and other relevant information; must enter vol- untarily into the research; and must be capable of mak- ing an informed decision. Informed consent to clinical research is important in the field of psychology and law, because psychological researchers must be aware of the requirements of conducting research and must protect themselves and also their research participants from any ethical breaches. Clinical research refers to studies con- ducted in a setting where clinical conditions, either med- ical or psychiatric, are diagnosed and treated. This entry provides a historical basis for the evolution of informed consent, the requirements of informed consent, and will end with a brief discussion of the capacities of poten- tially vulnerable individuals who may have compro- mised ability to give a valid consent by virtue of impaired capacity or lack of voluntariness. Historical Perspective In research settings, individuals are protected by the doctrine of informed consent, which has evolved through policies, regulations, and professional codes. In the 1940s, unspeakable acts were committed when medical experiments on human subjects were con- ducted in concentration camps in Nazi Germany. In response to the atrocious experiments, the first formal document for conveying the ideas of protection of per- sons as human subjects and informed consent was developed. The Nuremberg Code set forth 10 guide- lines for the ethical treatment of persons involved in research. The first statement of the Nuremberg Code states that the voluntary consent of the human subject is absolutely essential. Before an affirmative decision by the person can be made, one must know the nature, duration, and purpose of the experiment; the method and means in which it is conducted; and the reason- able inconveniences expected, which may possibly 148 ———Consent to Clinical Research C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 148 come from participation. The Nuremberg Code fur- ther states that experiments should only be conducted by scientifically qualified persons, that the results should yield fruitful results for the good of society, that all harm to the participant should be avoided, and that the participant may end the experiment at any time. The Nuremberg Code was expanded when the World Medical Association adopted the Declaration of Helsinki in 1964. The Code established indepen- dent ethical review committees to oversee all experi- mental procedures, which set the stage for the later development of institutional review boards (IRBs). Although the Nuremburg Code helped to identify basic ethical principles of research, there were still instances in which egregious ethical breaches contin- ued. The Tuskegee Syphilis Study, which began in 1932 and ultimately ended in 1972, was a research study in which medically ill patients were not offered effective medical treatment, which became available during the course of the research. In 1972, the uneth- ical manner of the research project was made public and this ultimately led to the 1974 Research Act. The National Research Act was signed into law, thereby creating the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The charge of the commission was to iden- tify the basic ethical principles that should underlie research involving human subjects and to develop guidelines that should be followed in accordance with the described principles. The 1979 Belmont Report emerged as a product of this work group and man- dated that all researchers gain approval from an IRB before proceeding with any type of experimentation. Principles of Beneficence, Justice, and Respect The Belmont Report specified the three basic ethical principles governing scientific research. These include respect for persons, beneficence, and justice. Respect for persons specifies that individuals should be treated as autonomous persons, and those whose decision making is compromised should be given special pro- tections and safeguards. Furthermore, participants must enter into a research setting voluntarily and with adequate information. Beneficence is applied in the research setting in that persons are entitled to partici- pation that is free from harm and that maximizes pos- sible benefits and minimizes possible harm. The principle of justice dictates that individuals should be treated fairly and equally in the research setting, according to their need, effort, contribution, and merit, and that all persons must share the responsibility of research. The three principles of the Belmont Report are translated into informed consent by maintaining that persons are participating of their own free will and that the benefits to the person outweigh the risks. The Belmont Report served as the basis for the Code of Federal Regulations, which was approved in 1978. In addition, in 1993, the International Ethical Guidelines for Biomedical Research Involving Human Subjects were developed. In 2005, the Department of Health and Human Services released a revised edition of the Federal Code of Regulations on the Protection of Human Subjects. Title 45, part 46 of the U.S. Code of Federal Regulations upholds the application of the Belmont Report principles and is now generally accepted as the uniform policy for the protection of research participants. Outlined are specific definitions and statements as they apply to both federally and non- federally funded research projects. Requirements of Informed Consent The theory of informed consent to research is that a research participant is both voluntary and fully informed about the nature and consequences of an experimental situation before giving consent to partici- pate. There are three essential elements to the doctrine of informed consent: voluntariness, information, and competency. The first element is that the person volun- tarily consents to the procedure, in that the individual chooses freely to participate. To be voluntary, the per- son must consent without the presence of coercion, fraud, or duress, which may hinder the person’s deci- sion-making ability. Stanley and Guido further elabo- rate that when an individual is consenting to participate in psychological research, one must consider the envi- ronment to ensure that the participant’s voluntary status is not compromised by the setting (e.g., prison, hospi- tal, school). Second, an individual must be fully informed of the proposed research setting to which he or she is consenting. The disclosure of information, which is provided in a formal informed consent document to the research participant, should include a description of the proposed procedures, its purpose, duration of the research procedure, the risks and benefits of par- ticipation, alternatives to participation, and the volun- tariness of participation. Other issues that should be disclosed are that the individual has the opportunity to Consent to Clinical Research ———149 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 149 withdraw from the research setting at any time, issues of confidentiality, and any other pertinent information such as how to contact the main investigator. The final element required to obtain informed con- sent is competency, which refers to the functional capacity to give valid consent to participate in research. Grisso and Appelbaum note that those persons who cannot use the disclosed information because of a lack of certain cognitive abilities are not capable of partici- pating in an informed consent procedure. When the impairment reaches a certain level of severity, a deter- mination can be made of incompetence. In legal terms, a de facto incompetence determination is made when inquiries into the person’s actual capacities reveal a suf- ficient lack in cognitive functionality. When making a judgment about one’s decision- making capacities, three types of information are usu- ally required as delineated by Grisso and Appelbaum: (1) the person’s clinical condition, (2) the person’s degree of functioning in tasks involving decision- making abilities, and (3) the situation-specif ic demands. There are four leg al standards f or assessing decision- making competence, which include the ability to com- municate a choice, the ability to understand relevant information, the ability to appreciate the circumstances and likely outcome, and the ability to rationally manip- ulate the information. Grisso and Appelbaum also note that although four standards have been proposed, not all courts and jurisdictions apply all concepts in a determination of competency. Also of importance is that a person’s status on the four abilities is not all-or- none. A person usually possesses all the abilities but in varying degrees and one must consider the complexity of the decision being made in relation to the condition of the person making that decision. For researchers it is important to provide all the necessary information to the potential participant so that he or she is able to make an informed decision. The information of the purposes, procedures, benefits, risks, and voluntary nature of participation must be outlined in a written document and signed by both parties. It is the responsibility of the researcher to ensure that the participant understands the informa- tion and is not being coerced in any way to participate. Competency of Special Populations When conducting research with normal healthy pop- ulations, researchers tend to presume that the partici- pant is capable of understanding the material in the informed consent document and capable of making an autonomous decision of whether to participate or not. However, when conducting research with poten- tially vulnerable populations, the same assumption cannot necessarily be made. Potentially vulnerable populations include children and adolescents, who are vulnerable because of their developmental level and their susceptibility to coercion; prisoners and other institutionalized individuals by virtue of their lack of voluntary status; medical patients who may have impaired cognitive function ranging from being comatose to some memory impairment; and psychi- atric patients as a result of possible compromised capacity to consent. Several empirical studies have examined the ability of psychiatric patients to pro- vide informed consent; a brief summary of the find- ings follows. In persons with schizophrenia and psychotic disorders, mixed results have been pro- duced. The consensus is that these types of patients, on the whole, perform more poorly than their non-ill counterparts on tests of competency. Several studies, however, have further noted that even with this divide, there is much heterogeneity among the schiz- ophrenic patients and many are able to perform at a level similar to non-ill persons. Research on persons with affective disorders is somewhat more promising, with this group performing at a level similar to non- ill persons in most of the published studies. Finally, elderly patients with Alzheimer’s disease seem to be the population at the greatest risk for having impaired levels of cognitive processing and thus a diminished ability to provide informed consent. Elizabeth Arias and Barbara Stanley See also Capacity to Consent to Treatment; Capacity to Consent to Treatment Instrument (CCTI); MacArthur Competence Assessment Tool for Clinical Research (MacCAT–CR) Further Readings Appelbaum, P., Lidz, C., & Meisel, A. (1987). Informed consent. New York: Oxford University Press. Meisel, L., & Lidz, C. (1977). Toward a model of the legal doctrine of informed consent. American Journal of Psychiatry, 134 (3), 285–289. Stanley, B., & Galietta, M. (2006). Informed consent in treatment and research. In I. Weiner & A. Hess (Eds.), The handbook of forensic psychology (3rd ed., pp. 211–239). Hoboken, NJ: Wiley. 150 ———Consent to Clinical Research C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 150 Stanley, B., & Guido, J. (1996). Informed consent: Psychological and empirical issues. In B. H. Stanley, J. E. Sieber, & G. B. Melton (Eds.), Research ethics: A psychological approach (pp. 105–128). Lincoln: University of Nebraska Press. Government Printing Office. (1949). Trials of war criminals before the Nuremberg Military Tribunals under Control Council Law (No. 10, Vol. 2, pp. 181–182). Washington, DC: Author. C OPING S TRATEGIES OF ADULT S EXUAL A SSAULT V ICTIMS Coping strategies of adult rape victims refers to the ways in which rape victims respond to an assault. Most of this research focuses on female victims because most sexual assault victims are women. Although the term coping implies that someone is adjusting well, coping strategies can actually be either helpful or unhelpful. Less helpful strategies include avoiding dealing with the assault, withdrawing from others, using drugs and alcohol to self-medicate, blaming one’s self, and focus- ing on the past and on why the assault occurred. Among the more helpful strategies reported are seeing the assault in a more positive light, relying on one’s reli- gious beliefs, and focusing on what currently is control- lable. Disclosing the assault can lead to either positive or negative reactions from others. Positive reactions are more common, although negative reactions have a greater impact. Knowledge about the strategies victims use to deal with an assault is relevant to several kinds of profes- sionals who work with victims. For example, knowl- edge about which strategies have been helpful or unhelpful is useful to those who provide direct ser- vices to victims (e.g., psychologists, social workers, advocates). This information also might be used by a psychological expert in a sexual assault case to help explain the effects of the rape on a victim to a judge or jury. It is important, however, to keep in mind that most rapes are not reported and, of those that are reported, many are not charged and few go to trial. Specific Coping Strategies In the general research literature on coping, nine primary forms of coping have been identified: cogni- tive restructuring, problem solving, support seeking, distraction, avoidance, social withdrawal, emotional regulation/expressing emotions, rumination, and help- lessness. Several studies have assessed the frequency with which rape victims use these strategies and the relationship between the use of the strategy and the postrape symptoms of distress. Typical symptoms of distress among rape victims include those associated with posttraumatic stress disorder (PTSD), depres- sion, and anxiety. Of the studies that have assessed one of these forms of coping among rape victims, avoidance and social withdrawal are generally associ- ated with greater distress. Avoidance involves trying not to think about or deal with the assault (e.g., trying to block it out), and social withdrawal, of course, involves withdrawing from others. The strategies associated with better adjustment fall mainly within the category of cognitive restructuring, which refers to trying to see the assault in a different or more positive light. Although this might seem unlikely, many vic- tims do actually report positive changes in their lives following an assault, such as that they appreciate life more. Teaching coping skills such as cognitive restructuring also has been found to reduce symptoms in experimental studies. The results of studies assess- ing emotional regulation/expressing emotions are mixed, partly because of methodological problems with the studies. However, the general research litera- ture on coping suggests that expressing emotions is associated with better adjustment. Another coping strategy not included in this categorization scheme is religious coping, which generally is associated with lower distress levels among victims. Another way in which victims may try to cope with the assault is by drinking or using drugs. Several studies indicate that victims report more alcohol and drug abuse and dependence than do nonvictims. Because drinking and drug use are risk factors for sex- ual assault, it is important to try to determine if the substance use came before or after the assault. Studies that attempt to assess the timing of the substance abuse relative to the sexual assault generally indicate that the substance abuse started after the assault. Alcohol and drug use by victims is related to higher distress levels; thus, victims may be using substances to self-medicate their distress. Social Support Although support seeking is considered one of the pri- mary forms of coping, research on support processes in Coping Strategies of Adult Sexual Assault Victims ———151 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 151 rape victims goes beyond the examination of support seeking as a coping process. For example, one issue for rape victims is whether and to whom to disclose the assault. Although disclosing the assault may not neces- sarily be for the purpose of seeking support, unlike other events that are more public (e.g., bereavement), victims only receive supportive or unsupportive reac- tions from others if they disclose the assault to them. The act of disclosing the assault or of seeking support also should be distinguished from the supportive or unsupportive reactions of others to the victim regarding the assault. Thus, research in this area has focused on whether and to whom victims disclose, what kinds of reactions they receive, and how those reactions are related to victims’ distress levels. This research sug- gests that although most rape victims do not report the assault to the police, most disclose to someone, such as friends or family members. In general, victims indicate that they received mostly positive and supportive reac- tions from others. However, negative reactions, such as being blamed or treated differently, also occur and appear to be more common from formal (e.g., the police, physicians) than from informal (e.g., friends, family) support providers. Negative social reactions tend to be more associated with distress than positive social reactions are associated with well-being. Nonethe- less, being believed and being listened to by others, especially friends and family, is associated with better adjustment among rape victims. Many friends and vic- tims report that the assault had a positive effect on their relationships (e.g., it brought them closer). Attributions About the Cause of the Rape Individuals who have been sexually assaulted often struggle to regain a sense of control over their lives. One way to do this is to try to identify the cause of the assault (i.e., make a causal attribution) and thus recog- nize how the assault could have been prevented. For rape victims, this may involve trying to identify what they could have done differently to avoid being raped. Much of the research on the relations among attribu- tions and posttrauma distress has been guided by the theory that behavioral self-blame, which involves attributing the assault to one’s past behavior, is an adaptive response to rape because it is associated with the belief that future rapes can be avoided. In contrast, characterological self-blame, which involves attribut- ing the rape to some stable aspect of one’s self that cannot be changed, is thought to be maladaptive because it is not associated with a sense of future con- trol. This theory has been described as dominating research on attributions and adjustment for more than two decades and as being widely accepted as having implications for interventions with trauma survivors. Although this theory suggests that behavioral self- blame is adaptive, behavioral self-blame consistently is associated with more, rather than less, distress among survivors of rape. In addition, behavioral self- blame generally is unrelated to perceived future con- trol among victims of rape. In other words, behavioral self-blame does not appear to foster the belief that future rapes can be avoided, which was the proposed mechanism for its adaptive value. Characterological self-blame is also consistently related to higher distress levels. Indeed, the two types of self-blame are highly correlated with each other. Experimental studies sug- gest that reductions in self-blame in treatment are asso- ciated with reductions in PTSD symptoms. Research on attributions has tended to focus on self- blame, perhaps because of the predominance of the aforementioned theory. However, other kinds of blame, such as blaming the rapist or other external factors, tend to be more common than self-blame. These other types of blame also are associated with more distress. It appears that focusing on the past and on why the assault occurred is associated with higher distress levels. It is less adaptive to focus on the past and on why the assault occurred, or even on how future assaults can be avoided, than to focus on aspects of the assault that are currently controllable, such as the recovery process. Patricia A. Frazier See also Child Sexual Abuse; Rape Trauma Syndrome; Victimization Further Readings Filipas, H., & Ullman, S. (2001). Social reactions to sexual assault victims from various support sources. Violence and Victims, 16, 673–692. Frazier, P. (2003). Perceived control and distress following sexual assault: A longitudinal test of a new model. Journal of Personality and Social Psychology, 84, 1257–1269. Frazier, P., Mortensen, H., & Steward, J. (2005). Coping strategies as mediators of the relations among perceived control and distress in sexual assault survivors. Journal of Counseling Psychology, 52, 267–278. 152 ———Coping Strategies of Adult Sexual Assault Victims C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 152 Ullman, S. (2000). Psychometric characteristics of the Social Reactions Questionnaire: A measure of reactions to sexual assault victims. Psychology of Women Quarterly, 24, 257–271. Ullman, S., Filipas, H., Townsend, S., & Starzynski, L. (2005). Trauma exposure, posttraumatic stress disorder and problem drinking in sexual assault survivors. Journal of Studies on Alcohol, 66, 610–619. C RIMINAL B EHAVIOR , THEORIES OF When crime is truly the product of rational choice, the offender commits the act for reasons of personal gain or gratification. His or her behavior is under his or her complete control. How and to what degree, however, might other factors intrude on and compromise his or her ability to exercise free will? The response to this question has come in the form of innumerable theories, each purporting to explain criminal behavior in terms of specific factors. Broadly speaking, these theories involve three categories of factors: psychological, bio- logical, and social. In fact, human behavior is the prod- uct of complex interactions among many factors. Rather than providing a summary of myriad theories, this entry focuses on the main factors involved in the expression and suppression of criminal behaviors. Social Factors There is a vast criminological literature that identifies a wide range of environmental factors as causally linked to criminal behavior. These include develop- mental, social, and economic factors. For example, poverty is often cited as a socioeconomic condition linked to crime. The stress, strain, and frustration experienced by those lacking the financial resources to meet their needs and fulfill their desires through legitimate means renders them more inclined to com- mit crime than affluent individuals with ready access to legitimate means. Poor nutrition is an especially troubling aspect of poverty. Nutritional deficiencies can result in or exacerbate problems such as learning disabilities and poor impulse control. Such cognitive dysfunctions have been identified as precursors to delinquency and adult criminality. Thus, one’s position in the social structure of society—as opera- tionalized by variables such as level of income—can be a significant contributing factor in the criminal activities of some individuals by virtue of its impact on brain function. Growing up in a household where parental displays of violence are commonplace can shape the behavior of children so as to make them more likely to respond to their own problems with violent means. While aggression and violence are not synonymous, that they are correlated is undeniable. Psychologist Albert Bandura demonstrated the importance of social learn- ing in the development of aggressive behavior. Exposure to a violent role model may operate as a trigger of preexisting psychological and biological factors that predispose that individual to aggressive behavior. This may explain why only one of the two sons whose father assaults their mother grows up to beat his own wife—there were additional factors that rendered him more readily influenced by the violent model; or, conversely, the nonviolent son was resistant to the influence by virtue of individual “protective” factors, such as high IQ. There is a substantial literature on a “cycle of vio- lence” whereby victims of childhood abuse and neglect are predisposed to engage in violent behavior in adulthood, thus passing the violence from one gen- eration to the next. Other research has examined the effects of being bullied during formative years, find- ing that the victims in turn become victimizers. In ani- mal experiments, exposure to conditions of inescapable threat has been found to alter specific chemicals in the brain involved in aggression and the inhibition of aggression, with the result that formerly docile ani- mals go on to display inappropriate and excessive aggression, attacking smaller, weaker animals whenever presented with them. In essence, they become the “pl ayground bully.” Thus, a change in the environ ment—exposure to inescapable threat— leads to changes in biology, which lead to the changes in behavior. Empirical studies on the effects of child maltreatment reveal that in addition to ps

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ychological problems actual structural and functional damage to the developing brain may occur. These neurobiologi- cal effects may be an adaptive mechanism for living in that dangerous environment. Regardless, they also tend to predispose the individual to a range of psychi- atric conditions, aggressive behaviors, and stress- related illnesses. Resilient children, so called because of their ability to thrive under high-risk conditions, appear to have cognitive capabilities (notably higher verbal intelligence) that enable them to adapt to their stressful environment. Understanding the mechanisms Criminal Behavior, Theories of ———153 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 153 that underlie resilience may reveal deficits in those who succumb to the harmful effects of their disadvan- taged or abusive childhood—often becoming delin- quent and criminal as a result. Of course, the majority of poor people are not crim- inals, and the majority of those growing up in abusive homes or who are bullied do not go on to become criminals, raising the question: What it is about those who commit crime that distinguishes them from others who experience similar circumstances but are law abiding? Furthermore, why would individuals who do not experience such adversity commit crime? The answer to these questions is that social factors affect different people differently. By and large it is the psy- chological and biological makeup of an individual that determines how and to what extent external forces affect his behavior. Psychological and biological fac- tors interact to render an individual more or less vul- nerable to adverse social conditions. This should not be taken to diminish the influence of social factors on criminal behavior, for indeed they have a significant role, but rather to highlight the fact that the effect they have depends on the psychological and biological makeup of the individual. Ultimately, it is the individ- ual who acts—criminally or otherwise. Psychological Factors By virtue of the requirement of mens rea, criminal courts are concerned with the psychological elements that underlie criminal behavior. Research teaches, however, that the psychology of the offender emanates from a biological substrate. And, one’s psychological states affect various aspects of his or her biology. Mind and brain have an indelible connection. An individual’s psychological state or mental status—whether at the scene of a crime or in a courtroom—involves biologi- cal mechanisms. Psychopathology—the study of diseases/disorders of the mind—constitutes a major area of preparation for the forensic psychologist. While the vast majority of individuals with mental disorder do not commit crimes, it is estimated that rates of serious mental dis- order among prison inmates are three to four times greater than they are for members of the general pop- ulation. Although this cannot blindly be taken to mean that the crimes of mentally disordered inmates were due to their psychopathology, or that mental disorder predated their incarceration, their disproportionate numbers relative to the general population nonetheless confer significance to mental disorder as a contributing factor in criminal behavior. The relationship between criminal behavior and mental disorder is complex. Individuals who experi- ence false perceptions (i.e., have hallucinations such as hearing voices that have no basis in objective real- ity) and/or hold false beliefs (i.e., have delusions such as “people are out to kill me”) are considered to have a major mental disorder, or psychosis. Recent research has linked schizophrenia, a psychosis, to an increased risk of committing violent crime—usually against sig- nificant others in their lives (not the randomly encoun- tered strangers portrayed in popular media). While it is understandable how someone who is out of touch with reality can harm another as a result (e.g., by hav- ing a delusion that he has a divine mission to cleanse the streets of vermin—say, by killing homeless people), the majority of psychotic individuals do not commit crimes. Research on hallucinations in schizophrenics reveals that the basis for their false perceptions is brain dys- function. For example, the occurrence of auditory hal- lucinations coincides with the firing of neurons in brain regions normally involved in processing sound— but in this case in the absence of sound. Instead of asking the nebulous question, “Why does a schizo- phrenic hear voices?” we are now positioned to ask why neurons in particular regions of the brain misfire in the absence of external stimuli. Thus, the impetus for violence in a schizophrenic individual—when he attacks because the voices say the other person intends harm—appears to arise out of aberrant neural activity. Of the mental disorders currently recognized by clinicians and researchers, most are not deemed psy- choses. Rather, they are disorders of personality, impulse control, and the like. Psychopathy, a form of personality disorder, is exhibited as a cluster of spe- cific affective, interpersonal, and socially deviant behaviors. Although psychopaths make up only about 1% of the general population, they are estimated to comprise approximately 25% of prison populations. The nature of their disorder—lacking remorse for their antisocial actions and emotional empathy for those whose rights they violate—makes them espe- cially well suited for criminal activity. While most psychopaths are not criminal (nonetheless behaving in ways that disregard consideration for others), of those who are, recidivism rates tend to be significantly higher than for nonpsychopathic offenders. 154 ———Criminal Behavior, Theories of C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 154 Although psychopaths are not psychotic, the neurobiological mechanisms that normally impart emotion to cognitions, thoughts, and attitudes appear to be dysfunctional in the psychopath. The psycholo- gist Robert Hare suggests that whereas genetic (and other biological) factors determine the aberrant per- sonality structure, the environment may shape how the disorder is expressed as behavior. Positron emission tomography and single-photon-emission computed tomography scans have identified a number of specific regions in the brains of violent psychopaths that do not function normally. In particular, the prefrontal cortex—part of the frontal lobes of the brain largely responsible for rational decision making and impulse control—appears to be underaroused, rendering it incapable of effectively managing emotional urges. Impulsive behaviors, including crimes, are the result. However cognitive abilities are defined, certainly they have a major role in criminal behavior. Where research has used IQ as a measure of intelligence, by and large offenders have lower scores than nonoffend- ers. Typically, individuals with low intellectual ability have difficulty delaying gratification, curbing their impulses, and appreciating the alternative means to get what they want. With substantial intellectual impairment, they tend to be less inhibited from doing harm because they lack the appreciation for the wrongfulness of their conduct. Although environment can facilitate or suppress the development and expres- sion of one’s cognitive abilities, research indicates that these have a substantial heritable component. The concept of emotional intelligence holds con- siderable promise for a more comprehensive under- standing of chronic criminality. Those with low emotional intelligence—people who lack insight into their own behavior and empathy toward others—are less inhibited about violating the rights of others. Injury to the (ventromedial) prefrontal cortex has been linked to the onset of reckless and antisocial behavior (including violence) without remorse, suggesting our moral compass is rooted in specific frontal lobe func- tions that for the chronic offender are defective. Much neglected in the mainstream literature on criminal behavior are the effects of traumatic events in early childhood from a psychoanalytic perspective. Twenty-first century technology provides for—should we choose—a recasting of Freudian constructs as spe- cific neurobiological factors. The id, responsible for generating unconscious and primitive urges, may cor- respond with the limbic system—which includes brain structures involved in basic emotions, motivation, and memory. The aspect of the personality Sigmund Freud referred to as the ego mediates the self-centered demands of the id. The ego develops in childhood and grounds the individual in reality. It would be this ratio- nal aspect of personality that negotiates with the emo- tional and impulsive id. Read frontal lobes here. As for Freud’s superego, the moral aspect of personality may well “reside,” at least partially, in the ventromedial pre- frontal cortex. Remorseless antisocial behavior follows damage to this area of the brain. Reconceptualizing Freudian constructs in this manner need not negate their validity, for the basic tenet—relating defects of personality to early trauma—remains intact. Rather, a neurobiological interpretation of psychoanalytic processes affords them something they heretofore lacked—the ability to be empirically validated. While we refer to disordered mental states or dis- eased mind, frequently understated or unstated are the neurobiological processes that underlie them. Whatever the psychological problem, we can no longer speak of the psychological factors associated with criminal behavior without also discussing biological factors— virtually in the same sentence. Biological Factors The numerous and varied social and psychological factors that increase the risk of criminal behavior are mediated by biological processes. Proper diet is essential to optimal brain function. For example, complex carbohydrates are broken down to make glucose—the basic fuel for the brain. Many nutri- ents are involved in converting that glucose into energy. A deficiency in any one of these essential nutrients com- promises brain function by lowering the available energy. The frontal lobes of the brain, responsible for rational thinking, organizing behavior, and moderating emotional impulses, require approximately twice the energy as the more primitive regions. If energy levels are depleted, higher functions become impaired leaving lower brain activity uninhibited. Effectively, our emo- tions will have their way with us. Beyond basic energy needs, specific nutrients are required for the synthesis of neurotransmitters. It is, therefore, understandable how malnutrition compromises cognitive function and, in so doing, facilitates antisocial and aggressive behaviors. Of the diagnosed illnesses associated with violent behavior, substance abuse ranks highest. The disin- hibiting effects of alcohol are evident in police Criminal Behavior, Theories of ———155 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 155 reports—replete as they are with accounts of domes- tic violence, aggravated assault, murder, and rape under its influence. Substance abuse has a particularly deleterious effect on individuals with preexisting mental disorder, exacerbating their dysfunction. It is not that alcohol causes violent behavior; rather, it appears to trigger violence in those already prone to behave violently by virtue of other factors. Exposure to toxic agents in the environment such as pesticides and lead can delay or impair an individual’s intellectual development and thus affect behavior and its regulation. In this regard, teratogens—factors that interfere with normal embryonic development—have a particularly important role in predisposing some indi- viduals to a life of crime. The legacy of cognitive deficits and behavioral sequelae due to, for example, prenatal exposure to drugs and alcohol, are well docu- mented in the literature. Neurotransmitters are responsible for conducting electrochemical impulses within and across regions of the brain (as well as throughout the body). Many psy- chiatric disorders have been linked to imbalances in neurotransmitter systems. Serotonin is involved in a number of brain functions, including regulation of emotional states. In laboratory experiments, lowering the serotonin levels results in the onset of impulsive and aggressive behavior. That abuse and neglect in childhood can result in permanently reduced levels of serotonin is therefore an important observation for our understanding of the etiology of violence. Hormones function in much the same way as neu- rotransmitters except they are released into the blood- stream rather than between neurons. Abnormally high levels of circulating testosterone—a sex hormone associated with the drive to dominate and compete— have been linked to excessive aggression. The phe- nomenon of “roid rage” in body builders who use anabolic steroids and exhibit extreme and uncontrol- lable violence attests to this effect. Such observations, as well as research on stress hormones correlating, for example, low levels of salivary cortisol with severe and persistent aggression, show the importance of hormonal contributions to criminal behavior. Research on skin conductance, heart rate, and brainwave activity has linked low arousal to criminal behavior. In fact, in young children, these psy- chophysiological conditions have been reported to portend later delinquency with a high degree of accu- racy. What these and the aforementioned studies sug- gest is that the brains of chronic offenders work differently. As we proceed to identify more of the factors linked to criminal behavior, we will take with us one particular question, the answer to which will have implications that at once generate fear and optimism: To what extent are the factors genetically determined? A variety of methodologies—examining twins and adoptees, chromosomal abnormalities, and DNA polymorphisms—have been applied to evaluate the role of genetic factors in criminal behavior and aggres- sion. Although it is not anticipated that a “crime gene” will ever be discovered, it is clear there are genes that code for specific neurochemicals linked to different kinds of behavior. To illustrate, a specific—albeit rare—mutation has been identified in a gene that holds the recipe for a particular enzyme known to affect the level of certain neurotransmitters in the brain. This defect has been linked to a propensity toward impul- sive and excessive aggression and violence in each of the men of the family who has this mutation. Studies in behavioral genetics support the con- tention that aggressive behavior is moderately herita- ble. Aggressive behaviors confer advantage to the males of a species as they compete for territory and access to females. Evolutionary psychology holds that aggressive traits that increase reproductive success will be selected and carried across successive genera- tions. Primatologist Ronald Nadler contends that sex- ual aggression is inherent in the behavioral repertoires of great apes—animals that are among our closest bio- logical affiliates. Human males, as a function of their drive to procreate, would be naturally inclined to have sex with as many different partners as possible, maxi- mizing the probability that the species will survive and also that their own genes will be transmitted to the next generation. The fact that most males do not rape is in large measure due to their socialization; rapists are males who have not been effectively socialized in this regard. We can appreciate through this example how specific psychosocial risk factors (e.g., low intel- ligence) can increase the probability of criminal and violent behavior—in this case, rape. The long tradition of assuming crime to be the product of volition, unencumbered by aberrant psy- chological or biological processes, is under attack. In the end, we may find it is psychologist Adrian Raine’s bold conceptualization of criminality as a clinical dis- order that best fits what we learn. To embrace this position, however, would require us to revisit our notions of crime and punishment—and treatment. If criminal behavior, at least impulsive violent criminal 156 ———Criminal Behavior, Theories of C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 156 behavior, is inherently pathological, the implications are legion. In their determinations of culpability, the courts are thus wise to proceed with caution. As behavioral science research and technology advance, it is likely that the critical mass of the data will, ulti- mately, persuade. Candice A. Skrapec See also Criminal Responsibility, Assessment of; Forensic Assessment; Mens Rea and Actus Reus; Psychopathy; Psychotic Disorders Further Readings Hare, R. D. (1993). Without conscience: The disturbing world of the psychopaths among us. New York: Pocket Books. Raine, A. (1993). The psychopathology of crime: Criminal behavior as a clinical disorder. New York: Academic Press. Salovey, P., & Mayer, J. (1990). Emotional intelligence. Imagination, Cognition, and Personality, 9 (3), 185–211. Strueber, D., Lueck, M., & Roth, G. (2006, December). The violent brain. Scientific American, pp. 20–27. Teicher, M. H. (2002, March). Scars that won’t heal: The neurobiology of child abuse. Scientific American, pp. 68–75. Widom, C. S. (1989). The cycle of violence. Science, 244, 160–166. C RIMINAL R ESPONSIBILITY , A SSESSMENT OF Mental health professionals are frequently asked to eval- uate criminal defendants to assist the courts in determin- ing whether those individuals may have been legally insane (i.e., not criminally responsible) at the time of their crimes. This entry discusses the legal concept of and criteria for insanity, as well as the challenges that forensic experts face in conducting these evaluations. In contemporary Western society, prohibited behav- iors are typically codified in the criminal law, and most citizens are held to be responsible to obey these laws. Individuals who violate the law may be prosecuted and, if convicted, punished for their behavior. Such individ- uals are said to be “criminally responsible,” a label that reflects the moral and legal judgment that the person had neither a justification nor an excuse for his or her behavior, should have known better, and must endure the punishment as a corrective mechanism intended to discourage the recurrence of such behavior. As the last sentence indicates, behavior that on its face appears to be criminal may in some circumstances not warrant the legal and moral conclusion that the actor is “guilty” or “criminally responsible.” For example, under most circumstances, it is unlawful to take the life of another person, yet doing so in “self-defense” (the victim was threatening the life of the actor) may consti- tute a justification that precludes a finding of guilt. Similarly, taking money from another person (robbery), when performed under duress (a third-party threatens to kill the actor’s child unless the money is taken), may be seen as justified because of the greater harm (death of the child) that was avoided by robbing the victim. There are other individuals, or classes of individ- uals, who may be exempt or excused from judgments of “criminally responsible,” not because of extraor- dinary or justifying circumstances, but because of individual characteristics or features that render them, in society’s eyes, incapable of making the appropriate moral and legal judgments required to behave appropriately and (perhaps also) incapable from benefiting from punishment as a corrective measure. For our purposes, two such classes of indi- viduals will be mentioned, both of which have been recognized in Western cultures, literally for cen- turies, as inappropriate targets for judgments of moral and legal culpability. The first class of individuals is children, who, because of youthful age, lack of life experience, and mental or emotional immaturity, are considered not accountable as moral actors in the way that adults are held accountable for their behavior. Although excep- tional cases may be found, the law has generally con- sidered it an unrebuttable assumption that children at the age of 7 years and younger may not be held to adult standards of criminal responsibility, whereas there is a rebuttable assumption that children between the ages of 7 and 14 years are not moral agents to be held to adult standards of criminal responsibility. The second group or class of individuals, and the one of primary focus here, comprises individuals with significant mental disorders whose symptomatology contributes to their “criminal behavior” in specific ways that society deems excuses them from moral culpability (criminal responsibility). In more common legal parlance, these individuals are considered “legally insane” or “not guilty by reason of insanity.” Criminal Responsibility, Assessment of ———157 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 157 The insanity defense is generally unpopular in pub- lic opinion because of misperceptions about how it is used. Survey studies reveal public beliefs that the insan- ity defense is both frequently used and often successful. Such beliefs are likely distortions that result from the high degree of publicity surrounding notorious cases such as those of Patty Hearst, David Berkowitz (“Son of Sam”), Jeffrey Dahmer (none of whom was judged legally insane), and John Hinckley (who was found insane). However, neither belief is correct. Research shows that the insanity defense is asserted in less than half of 1% of criminal cases and more often than not it fails. Furthermore, when the insanity defense is suc- cessful, it is not the result of clever lawyers pulling the wool over the eyes of naive jurors. Most successful insanity defenses are not seriously challenged by the prosecution; more often it is clear to all parties that the defendant was insane at the time of the offense (accord- ing to criteria discussed below) and should not be held legally and morally responsible for his or her actions. Thus, many successful insanity defenses result, in effect, from plea agreements. The following sections discuss (a) the criteria for legal insanity, (b) the legal calculus for determining when a defendant meets these criteria, and © the methods used by mental health professionals to gather evidence and formulate opinions about the mental state of a defendant at the time of an offense. Criteria for Legal Insanity Historians of Western law point to the influence of Henry de Bracton, whose writings on English law in the 13th century introduced notions of mental capac- ity and intent into deliberations about guilt and moral culpability. Early language referenced notions such as “infancy” or reasoning capacity not far removed from that of a “wild beast” as potentially exculpating men- tal states. The most influential English case was the M’Naghten case (1843), which established as the test for insanity that the accused was laboring under such defect of reason, from dis- ease of the mind, as not to know the nature and qual- ity of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The emphasis in M’Naghten on impairment in the ability to “reason” or to “know” clearly made judg- ments about a defendant’s cognitive capacities central to the legal determination of insanity. This emphasis has survived in modern formulations that reference a defendant’s “ability to appreciate the wrongfulness of his conduct.” However, over the course of time modern psychiatry has influenced the law to consider voli- tional as well as cognitive impairments as potential bases for legal insanity. Thus, formulations in some jurisdictions refer to insanity resulting from criminal behavior that was due to an “irresistible impulse” or impaired capacity “to conform one’s conduct to the requirements of the law” irrespective of the presence of cognitive impairment. Finally, some formulations specify quantitative, albeit imprecise, levels of impairment for the insanity test to be met. Thus, it may be that not merely “impaired capacity” but “ substantially impaired capac- ity” must be established to excuse the defendant from being criminally responsible for his or her behavior. The Calculus of Legal Tests for Insanity In jurisdictions that allow the insanity defense, judges and juries must apply the relevant legal test. The struc- ture of all such tests requires three findings by the trier of fact. First, there is a predicate mental condition from which the defendant must have been suffering at the time of the offense. In the M’Naghten formulation above, the requisite condition is a “disease of the mind.” More modern formulations reference the pres- ence of “mental disease or defect” or similar language. It is important to note that in virtually all formulations, the legal definition for the predicate mental condition is neither highly precise nor tied explicitly to clinically recognized categories of mental illness or other mental impairments. (It is the case, however, that in many jurisdictions certain clinical conditions are explicitly barred by law as a basis for an insanity defense, most commonly (a) states of intoxication due to voluntarily consumed drugs or alcohol and (b) “disorders” defined almost exclusively on the basis of a history of antiso- cial behavior, such as antisocial personality disorder or sociopathy.) The second component in the legal test is that the criminal act was affected by (loosely, “caused” by) the predicate mental condition. In other words, merely having a “disease of the mind” or a “mental disease or defect” alone is not sufficient to excuse the defendant from being criminally responsible. Mentally ill people may commit crimes for all the noncrazy reasons that 158 ———Criminal Responsibility, Assessment of C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 158 other people do; they may steal because they are greedy, fight because they are angry, or drive poorly because they are intoxicated. To sustain an insanity defense, the mental impairment must have contributed to the occurrence of the criminal behavior. Finally, the link between the predicate mental impairment and the criminal behavior must specifi- cally be of the type prescribed in the legal test. As noted above, depending on the legal jurisdiction, the test for insanity may reference either cognitive or voli- tional impairments. Imagine a scenario in which a per- son with a well-established diagnosis of generalized anxiety disorder (“mental disease”) suddenly felt extremely anxious in a situation where the only means of escaping was to take another person’s car and drive away. He is not confused as to the ownership of the car (i.e., he “knows” that it belongs to another person), does not think that he has that person’s permission to take the car (i.e., has no illness-related delusion that he has the authority or approval to take the car), and is aware of, and maybe even consciously anxious about, the possibility that he could be arrested for taking the car. Under a purely cognitive insanity formulation that focuses on “knowing” or “appreciating” the wrongful- ness of his behavior, there is little to suggest that the actor’s illness (acute anxiety symptoms)—although it motivated his decision to take the car—impaired his cognitive abilities in the way prescribed by the legal test. Alternatively, under a volitional formulation that referenced impaired control of impulses or capacity to conform conduct, the sudden strong urge to flee, arguably animated by his anxiety disorder, might sup- port a finding of insanity. Clinical Assessment of Criminal Responsibility When the defense decides to pursue a defense of insan- ity, mental health professionals, commonly psychia- trists or psychologists, are hired by the prosecution and defense and/or appointed by the court to evaluate the defendant’s mental condition and to provide reports and/or testimony as to the defendant’s criminal respon- sibility. This is one of the most challenging types of evaluation for mental health professionals in their roles as forensic examiners because it is different, in so many ways, from the ordinary evaluations that they conduct in clinical (nonlegal) settings. Clinical diagnostic assessments are imperfect even under optimal conditions—that is, when the clinician is working with a voluntary, candid, and willing client and the focus is on present mental functioning and treatment planning. Such conditions are almost never present when evaluations for criminal responsibility are being conducted. Because the insanity evaluation focuses narrowly on a specific point in time in the past, this inevitably diminishes the utility of commonly used clinical measures, such as psychological tests or other diagnostic procedures. Instead, insanity evaluations rely to a large extent on reviews of investigative evi- dence collected by the police, interviews with defen- dants, and information collected from third parties who may have knowledge relevant to the defendant’s behavior and functioning at or near the time of the offense. Thus, investigative reporting, rather than tradi- tional clinical assessment, is perhaps a better concep- tual model for criminal responsibility evaluations. The challenges faced in conducting criminal respon- sibility ev aluations include the following: The Evaluation Is Retrospective . It is not uncommon for insanity evaluations to be conducted weeks or months after the defendant’s arrest. Furthermore, the time window between the crime and the clinical eval- uation may be extended considerably if the arrest is made only after a prolonged investigation. Much can happen during this interval to distort the reconstructed picture of the defendant’s prior mental state, including the following: 1. The defendant has a mental illness that has deterio- rated over time; the clinician interviews the defen- dant in this more disturbed state and may attribute more psychopathology at the time of the offense than was actually present. 2. The defendant has a mental illness that improves either spontaneously, due to the cyclical nature of the disorder, or to treatment received (e.g., in jail); the clinician interviews the defendant in this less dis- turbed state and may attribute less psychopathology at the time of the offense than was actually present. 3. Although not symptomatic at the time of the offense, the defendant may have developed symp- toms subsequent to the offense (e.g., a reaction to the nature of the crime itself, to events that occurred at arrest or in the jail, or in anticipation of serious consequences); the clinician may attribute some of this symptomatology as being present at the time of the offense. Criminal Responsibility, Assessment of ———159 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 159 4. Information obtained by interviewing the defendant or third-party sources (e.g., witnesses, family mem- bers), even if offered “honestly,” may be less accu- rate due to deterioration of memory over time. Concerns About Information Validity. Most people who provide information to the forensic examiner have a personal or professional interest in the opinions and findings that the examiner will reach. Thus, con- cerns about the validity of information are greater in insanity evaluations (and other forensic assessments) than with evaluations conducted for standard clinical and therapeutic purposes. A defendant may view a successful insanity defense as his or her only hope for avoiding a lengthy prison sen- tence and thus be motivated to exaggerate or fabricate symptoms of mental disorder in describing behavior and motivations at the time of the offense. Family members sympathetic to the defendant’s plight may distort infor- mation in ways that they believe are helpful to the case. The attorney(s) may be selective in the investigative information made available to the clinician, withholding that which they believe might lead the clinician to an unfavorable opinion. Evidence may be gathered and provided by the police in ways that provide a mislead- ing picture of the defendant’s prior mental functioning. For example, a defendant who is mentally confused and verbally incoherent may be cajoled into signing a “con- fession,” drafted in perfectly organized and sensible lan- guage by an arresting officer, that belies the extent of psychopathology present at the time of arrest. Translating Clinical Findings for Legal Consumers. Based on information gathered from the defendant, the police, and available third-party sources, the forensic examiner attempts to reconstruct an account of the defendant’s mental state at the time of the offense that considers whether, and the extent to which, symptoms of mental disorder may have contributed to the alleged crime. However, as noted above there is no direct translation of clinically recognized mental disorders, which can vary from relatively benign (e.g., nicotine use disorder) to severely incapacitating conditions (e.g., schizophrenia, manic disorder), into legal terms such as disease of the mind or mental disease or defect . Similarly, various formulations of the legal criteria for insanity require qualitative or quantitative determi- nations of either the nature of the functional legal impairment (e.g., ability to “know” or to “appreciate” wrongfulness of conduct) or the extent of impairment (e.g., categorically “ did not know” vs. “ lacked sub- stantial capacity to know”) for which there is no clin- ical or scientific technology. That there is no scientific basis for translating clin- ical findings into specific legal conclusions poses a challenge to forensic examiners who are often pres- sured by the attorneys, if not also the courts, to give conclusory opinions under the mantra of “reasonable medical (or scientific) certainty.” Mental health pro- fessionals have no “capacimeters” for determining whether the specific nature or extent of impairment in a given case is sufficient to excuse the defendant from his or her moral obligation to obey the rules. These constructs are legal terms of art that, in any individual case, have meaning only as expressed in the eventual social and moral judgment of the judge or jury when the verdict is reached. The status of an individual being legally insane (i.e., “not criminally responsi- ble”) is a social construction that has no meaning prior to, or independent of, the jury’s pronouncement. This is not to say that clinical evaluations of crim- inal responsibility cannot be helpful to legal decision makers. Rather, the challenge for forensic examiners is to collect information relevant to a defendant’s legal functioning and to describe it to the triers of fact in ways that facilitates their ultimate judgments, but without offering moral judgments of their own under the guise of scientific expertise. To illustrate with an example, one defendant who had a long and well-documented history of mental dis- order experienced a recurrence of symptoms that included the delusional belief that he had been appointed to the position of deputy director of the FBI (in reality, the individual had worked in a factory for 20 years). On the basis of this belief, and the further notion that he was urgently needed in Washington, D.C., on matters of national security, he boarded a Greyhound bus and, without license or permission, drove it away from the bus depot. He was arrested and charged with unlawfully driving away a motor vehicle. In this case, a forensic examiner might report that at the time of the offense the defendant experienced symptoms (i.e., delusions—strongly held but erro- neous beliefs) of a well-recognized mental disorder (schizophrenia) with which he had been diagnosed for a number of years. Although the objective evidence is that the defendant is a factory worker, the manifesta- tion of his illness at the time of the offense included a set of beliefs that distorted his perceptions of reality 160 ———Criminal Responsibility, Assessment of C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 160 with respect to his occupation (i.e., objectively he was not an FBI official) and his rights and duties associ- ated with his occupation (i.e., objectively he did not have the authority to commandeer a public transporta- tion vehicle in the interest of national security). The nature of these distortions impaired his ability to judge correctly with respect to the action of taking control over the bus. This formulation lacks a conclusive opinion as to whether or not the defendant’s symptoms at the time of the offense satisfy the required predicate condition (“he suffered from a mental disease”). Also absent is any conclusory opinion that the symptoms categori- cally did, or did not, relate to the criminal act in the prescribed way (i.e., “he did not know that what he was doing was wrong”). However, the formulation does provide a plausible accounting of the relation- ship between the defendant’s symptoms and the crim- inal behavior, but leaves it to the jury to “connect the dots,” so to speak, in a fashion congruent with their collective social and moral intuitions as to whether or not an individual so disturbed should be held crimi- nally responsible. Norman G. Poythress See also Automatism; Criminal Responsibility, Defenses and Standards; Forensic Assessment Further Readings De Pauw, K. W., & Szulecka, T. K. (1988). Dangerous delusions: Violence and misidentification syndromes. British Journal of Psychiatry, 152, 91–96. Dreher, R. H. (1967). Origin, development and present status of insanity as a defense to criminal responsibility in the common law. Journal of the History of the Behavioral Sciences, 3, 47–57. Goldstein, A. M., Morse, S. J., & Shapiro, D. L. (2003). Evaluation of criminal responsibility. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 381–406). Hoboken, NJ: Wiley. Morse, S. J. (1994). Causation, compulsion, and involuntariness. Bulletin of the American Academy of Psychiatry and the Law, 22, 159–180. Morse, S. J. (1994). Culpability and control. University of Pennsylvania Law Review, 142, 1587–1655. Poythress, N. G. (2004). “Reasonable medical certainty”: Can we meet Daubert standards in insanity cases? [Editorial]. Journal of the American Academy of Psychiatry and the Law, 32, 228–230. Slobogin, C. (2007). Proving the unprovable: The role of law, science, and speculation in adjudicating culpability and dangerousness. New York: Oxford University Press. C RIMINAL R ESPONSIBILITY , D EFENSES AND S TANDARDS Although the insanity defense is numerically insignif- icant, it remains profoundly important to the criminal justice system as the focal point of the ongoing debate on the relationship between legal responsibility, free will, mental illness, and punishment. The insanity defense has substantially survived in spite of persis- tent philosophical and political criticism. Its history reflects a balance and tension between changes in atti- tudes toward developments in psychiatry and psychol- ogy and changes in attitudes toward criminal justice, incapacitation, and the desire to punish. Probably no other area of criminal law and procedure reflects a jurisprudence that is so driven by myths as that of the insanity defense. Yet only a handful of American juris- dictions have legislatively abolished it. Insanity defense issues have concerned the courts and legislative bodies for hundreds (perhaps thou- sands) of years. As the various tests have developed— M’Naghten, irresistible impulse; Durham, the test proposed in the American Law Institute’s Model Penal Code (ALI-MPC); the federal Insanity Defense Reform Act, diminished capacity—and as efforts are made to limit the scope and use of the defense, either by use of a “guilty but mentally ill” verdict or by out- right abolition, it is clear that the symbolic values of the insanity defense must be considered carefully at all times. No area of our legal system has engendered a more intense level of debate than the role of the insanity defense in the criminal justice process. On the one hand, this difficult subject is seen as a reflec- tion of the fundamental moral principles of the crimi- nal law, resting on beliefs about human rationality, deterrability (i.e., whether the punishment of a person whose profound mental illness leads him to commit what would otherwise be a criminal act would serve as a deterrent to others), and free will, and as a bulwark of the law’s moorings of condemnation for moral fail- ure. On the other hand, it is castigated by a former attorney general of the United States as the major stumbling block in the restoration of “the effective- ness of Federal law enforcement” and as tilting the Criminal Responsibility, Defenses and Standards ———161 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 161 “balance between the forces of law and the forces of lawlessness.” Yet the percentage of insanity defenses pled is small (at the most 1%), the percentage of those successful is smaller (¼ of 1%), and the percentage of those successful in contested cases is minuscule (⅒ of ¼ of 1%). Notwithstanding the defense’s relative numerical insignificance, it touches—philosophically, culturally, and psychologically—on our ultimate social values and beliefs; it is rooted in moral principles of excuse that are accepted in both ordinary human interaction and criminal law; and it continues to serve as a surro- gate for resolution of the most profound issues in criminal justice. Although the defense has been signif- icantly narrowed in many jurisdictions in the past 25 years—a condition intensified by the verdict in the John Hinckley case (which involved the attempted assassination of President Ronald Reagan) as well as several other unpopular or “wrong” jury verdicts in cases involving sensationalized crimes or public fig- ure victims—reports of its demise are, to a great extent, exaggerated and, in spite of public outrage, the doctrine has remained alive in most jurisdictions. The insanity defense has been a major component of the Anglo-American common law for more than 700 years. Rooted in Talmudic, Greek, and Roman history, its forerunners actually can be traced back to more than 3,000 years. The sixth-century Code of Justinian explicitly recognized that the insane were not responsible for their acts and also articulated the early roots of the temporary insanity and diminished capacity doctrines. By the ninth century, the “Dooms of Alfred” (a code of laws compiled by Alfred the Great) acknowledged that an impaired individual— who could not acknowledge or confess his offenses— was absolved from personally making restitution. In pre-Norman England, the law similarly shifted repara- tions responsibility in the event that a “man fall out of his senses or wits ,… and kill someone.” The defense’s “modern” roots can be traced at least as far back as 1505, the first recorded jury verdict of insanity, but it is clear that even prior to that case, juries considered “acquittal to be the appropriate result” in certain insanity defense cases. Furthermore, William Lambard’s late-16th-century text on criminal responsibility ( The Eirenarcha ) suggested that the insanity defense was already well settled in England, and Sir Edward Coke’s 1628 treatise, Institutes of the Laws of England , gave the law the familiar maxim that the “ madman is only punished by his madness.” Early Developments In the early 18th century, English judges began the process of attempting to define for juries that condi- tion of the mind which would excuse, as a matter of law, otherwise criminal behavior. In Rex v. Arnold (1724), the first of the historically significant insanity defense trials, Judge Tracy charged the jury in the fol- lowing manner: That is the question, whether this man hath the use of his reason and sense? If he . . . could not distinguish between good and evil, and did not know what he did…he could not be g uilty of any offence against any law whatsoever ….On the other sid e…it is not every kind of frantic humour or something unaccount- able in a man’s actions, that points him out to be such a madman as is to be exempted from punishment: it must be a man that is totally deprived of his under- standing and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment. The law of criminal responsibility evolved further in 1800, in the case of James Hadfield, which envi- sioned insanity in the following manner: That a man could know right from wrong, could understand the nature of the act he was about to com- mit, could manifest a clear design and foresight and cunning in planning and executing it, but if his men- tal condition produced or was the cause of a criminal act he should not be held legally responsible for it. This trend toward a more liberal defense continued in the case of Regina v. Oxford (1840), which con- cerned the attempted assassination of Queen Victoria, in which the jury charge combined portions of what would later be known as the “irresistible impulse” test and the “product” test. M M ’ ’ N N a a g g h h t t e e n n Case The most significant case in the history of the insanity defense in England (and perhaps in all common-law jurisdictions) arose out of the shooting by Daniel M’Naghten of Edward Drummond, the secretary of the man he mistook for his intended victim, Prime Minister Robert Peel (as with all the other cases already discussed, the victim was a major political 162 ———Criminal Responsibility, Defenses and Standards C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 162 figure). Enraged by the jury’s insanity verdict, Queen Victoria questioned why the law was of no avail, since “everybody is morally convinced that [the] malefac- tor…[w as] perfectly conscious and aware of what he did,” and demanded that the legislature “lay down the rule” so as to protect the public “from the wrath of mad- men who they feared could now kill with impunity.” In response to the Queen’s demand, the House of Lords asked the Supreme Court of Judicature to answer five questions regarding the insanity law; the judges’ answers to two of these five became the M’Naghten test (1843): The jurors ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the com- mitting of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. There are three main features of this formulation: First, it is predicated on proof that the defendant was suffering from a “defect of reason, from disease of the mind.” From the time of M’Naghten until today some finding of “mental disease or defect” has been a neces- sary predicate for the insanity defense. Second, once such a “disease” is shown, the inquiry focuses on what the defendant was able to “know.” That is, the interest of the law under this test is in the ability of the defen- dant to “know” certain things. It is for this reason that the inquiry is sometimes referred to as a “cognitive” formula. Third, the M’Naghten test focuses on two things the defendant must be able to “know” to be guilty of a crime. One is “the nature and quality” of the act that was committed. The other is that the act “was wrong.” In both instances, the question is whether the defendant was “capable” of knowing these things, that is, whether the mental illness had robbed the defendant of the capacity to know what “normal” people are able to know about their behavior. The idea, in sum, is that people who are unable to know the nature of their con- duct or who are unable to know that their conduct is wrong are not proper subjects for criminal punishment. In commonsense terms, such persons should not be regarded as morally responsible for their behavior. This test has been severely criticized as rigid and inflexible, based on outmoded views of the human psyche, of little relation to the truths of mental life, reflecting antiquated and outworn medical and ethical concepts. Furthermore, the use of language such as “know” and “wrong” was criticized as “ambiguous, obscure, unintelligible, and too narrow.” Donald Hermann and a colleague have argued, by way of example, that the cognitive aspect of one’s personality cannot be seen as the sole determinant of one’s subse- quent behavior (and the basis of one’s ultimate criminal guilt) because the psyche is an integrated entity. Critics also maintain that the narrow scope of the expert testimony required by the M’Naghten test deprives the jury of a complete picture of the psycho- logical profile of the defendant as the test ignores issues of affect and control. Nevertheless, American courts readily adopted the M’Naghten formulation and codified it as the standard test, “with little modification,” in virtually all jurisdic- tions until the middle of the 20th century. Irresistible Impulse In a partial response to criticisms of the M’Naghten test, several courts developed an alternative test that later became known as the “irresistible impulse” test, adapted from a test first formulated in 1883 by Lord Stephen: If it is not, it ought to be the law of England that no act is a crime if the person who does it is at the time…prev ented either by defective mental power or by any disease affecting his mind from controlling his own conduct, unless the absence of the power of control has been produced by his own default. This rule allowed for the acquittal of a defendant if his mental disorder caused him to experience an “irre- sistible and uncontrollable impulse to commit the offense, even if he remained able to understand the nature of the offense and its wrongfulness.” It was based, in the words of Abraham Goldstein, one of the leading legal scholars on the history of the insanity defense, on four assumptions: First, that there are mental diseases which impair voli- tion or self-control, even while cognition remains rela- tively unimpaired; second, that the use of M’Naghten alone results in findings that persons suffering from such diseases are not insane; third, that the law should Criminal Responsibility, Defenses and Standards ———163 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 163 make the insanity defense available to persons who are unable to control their actions, just as it does to those who fit M’Naghten ; fourth, no matter how broadly M’Naghten is construed, there will remain areas of serious disorder which it will not reach. (p. 67) At its high-water mark, this test had been adopted in 18 jurisdictions, but today, far fewer states follow its teachings. The Product Test Charles Doe, a mid-19th-century New Hampshire State Supreme Court judge, first crafted what became known as the product test: “If the [crime] was the off- spring or product of mental disease in the defendant, he was not guilty by reason of insanity” ( State v. Pike , 1870). This test first entered the legal public’s con- sciousness in 1954, when it was adopted by the District of Columbia in Durham v. United States , rejecting both the M’Naghten and the irresistible impulse tests as based on “an entirely obsolete and misleading conception of the nature of insanity,” one that ignored the reality that “the science of psychiatry now recognizes that a man is an integrated personality and that reason, which is only one element in that personality, is not the sole determinant of his conduct” (p. 871) and that a far broader test would be appropriate. Durham held that an accused would not be crimi- nally responsible if his “unlawful act was the product of mental disease or mental defect” (pp. 874–875). This test would provide for the broadest range of psy- chiatric expert testimony, “unbound by narrow or psy- chologically inapposite legal questions” (Weiner, 1985, p. 710). The case was the first modern, major break from the M’Naghten approach and created a feeling of intellectual and legal ferment. It was adopted, however, in fewer than a handful of jurisdic- tions and became the topic of fairly rigorous criticism, that it allegedly failed to provide helpful guidelines to the jury and that it was—at its core—a “nonrule,” pro- viding the jury with no standard by which to judge the evidence; that it misidentified the moral issue of responsibility with the scientific issues of diagnosis and causation; and that it was too heavily dependent on expertise, leading to the usurpation of jury decision making by psychiatrists. Within a few years after the Durham decision, the court began to modify and— ultimately—dismantle it, culminating in its decision in United States v. Brawner (1973), the most important of the many federal cases that had rejected M’Naghten and adopted instead the ALI-MPC test. American Law Institute’s Model Penal Code Test In an effort to avoid the major criticisms of M’Naghten, the irresistible impulse test, and Durham, the ALI couched the substantive insanity defense standard of its MPC in language that focused on volitional issues as well as cognitive ones. According to the ALI-MPC standard, a defendant is not responsible for his criminal conduct if, as a result of mental disease or defect, he “lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” (§ 4.01(1)). Under this formu- lation, the term mental disease or defect specifically excluded “an abnormality manifested only by repeated criminal or otherwise antisocial conduct”(§ 4.01(2)). Although the ALI-MPC test was rooted in the M’Naghten standard, there were several significant dif- ferences. First, its use of the word substantial was meant to respond to case law developments that had required a showing of total impairment for exculpation from criminal responsibility. Second, the substitution of the word appreciate for the word know showed that a sane offender must be emotionally as well as intellectu- ally aware of the significance of his or her conduct and that mere intellectual awareness that the conduct is wrongful when divorced from an appreciation or under- standing of the moral or legal import of behavior can have little significance. Third, by using a broader lan- guage of mental impairment than had M’Naghten, the test captured both the cognitive and affective aspects of impaired mental understanding. Fourth, its substitution in the final proposed official draft of the word wrong- fulness for criminality reflected the position that the insanity defense dealt with an impaired moral sense rather than an impaired sense of legal wrong. Although there were some immediate criticisms of the ALI-MPC test, principally due to the attempt to bar “psychopaths” or “sociopaths” from successfully using the defense, the test was generally applauded as encouraging adjudication based on reality and the prac- tical experience of psychiatrists by recognizing that both the volitional and the cognitive processes of an individual may be impaired. The test was subsequently adopted by more than half of the states and, in some form, by all but one of the federal circuits. Perhaps most significant, the District of Columbia Court of 164 ———Criminal Responsibility, Defenses and Standards C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 164 Appeals, in overruling its “product” test of Durham v. United States in United States v. Brawner , adopted the ALI-MPC test. Insanity Defense Reform Act Slightly more than a decade after Brawner, in the wake of John Hinckley’s failed attempt to assassinate U.S. President Ronald Reagan, Congress enacted the federal Insanity Defense Reform Act. This law had the effect of returning the insanity defense in federal jurisdictions to status quo ante 1843: the year of M’Naghten . The bill changed the federal law in sev- eral material ways: 1. It shifted the burden of proof to defendants, by a quantum of clear and convincing evidence. 2. It articulated, for the first time, a substantive insanity test, adopting a more restrictive version of M’Naghten, thus discarding the ALI-MPC test previously in place in all federal circuits. 3. It established strict procedures for the hospitalization and release of defendants found not guilty by reason of insanity. 4. It severely limited the scope of expert testimony in insanity cases. Diminished Capacity One of the most difficult concepts in substantive insan- ity defense formulation is that of diminished capacity, a doctrine that holds that evidence of reduced mental capacity tending to show the absence of any mental state essential to the alleged crime should be accepted by the trial court, whether or not an insanity plea was entered ( People v. Wells , 1949, pp. 63–70). There seems little question that the diminished capacity doctrine was developed to be used in murder cases to mitigate the harshness of a potential death penalty by raising the question of whether the defendant could sufficiently appreciate the nature of his or her act so as to sustain a first-degree murder conviction. In addition, use of the doctrine has been justified as a means to ameliorate defects in a jurisdiction’s substantive insanity defense test criteria and as a means of permitting juries to make more accurate individualized culpability judgments. This doctrine, however, has been routinely criti- cized for its difficulty and arbitrariness in application, leading to uneven and inequitable outcomes, and while it had been endorsed in some form in nearly 25 jurisdictions, it has failed to capture major support and has even lost the support it previously enjoyed. “Guilty but Mentally Ill” Perhaps the most significant development in substan- tive insanity defense formulations in the past 20 years has been the adoption in more than a dozen jurisdic- tions of the hybrid “guilty but mentally ill” (GBMI) verdict. It received its initial impetus in Michigan, as a reflection of legislative dissatisfaction with and pub- lic outcry over a state Supreme Court decision that had prohibited automatic commitment of insanity acquittees. There, legislation was enacted that pro- vided for a GBMI verdict—as an alternative to the not guilty by reason of insanity (NGRI) verdict—if the following were found by the trier of fact beyond a reasonable doubt: 1. That the defendant is guilty of an offense 2. That the defendant was mentally ill at the time of the commission of the offense 3. That the defendant was not legally insane at the time of the commission of the offense The rationale for the passage of the GBMI legislation was that the implementation of such a verdict would decrease the number of persons acquitted by reason of insanity and ensure treatment of those who were GBMI within a correctional setting. It was conceived that once a defendant were to be found GBMI, he or she would be evaluated on entry to the correctional system and pro- vided appropriate mental health services either on an inpatient basis as part of a definite prison term or, in spe- cific cases, as a parolee or as an element of probation. This model was followed—in large part—in most of the other states that have adopted the GBMI test. Most academic analyses have been far more criti- cal, rejecting it as conceptually flawed and procedu- rally problematic and as not only superfluous but also dangerous. By way of example, in practice, the GBMI defendant is not ensured treatment beyond that avail- able to other offenders. Thus, Christopher Slobogin (one of the leading current scholars in this area of the law) suggests, it is “not only misleading but danger- ous to characterize the [GBMI] verdict either as a humane advance in the treatment of mentally ill Criminal Responsibility, Defenses and Standards ———165 C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 165 offenders or as a more effective way of identifying offenders in need of treatment.” The GBMI verdict, he concludes, is “a verdict in name only” (p. 515). Insanity Defense Myths The empirical research has revealed that at least half a dozen myths about the insanity defense had arisen and have been regularly perpetuated but were all disproven by the facts. The research showed that the insanity defense opens only a small window of nonculpability, that defendants found that NGRI does not “beat the rap,” and, perhaps most important, that the tenacity of these misbeliefs in the face of contrary data is profound. Myth 1: The insanity defense is overused.

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All empirical analyses have been consistent: the public, legal profes- sion, and, specifically, legislators dramatically and grossly overestimate both the frequency and the suc- cess rate of the insanity plea. This error undoubtedly is abetted by media distortions in presenting information on persons with mental illness charged with crimes. Myth 2: The use of the insanity defense is limited to murder cases. In one jurisdiction where the data have been closely studied, slightly less than one third of the successful insanity pleas entered over an 8-year period were reached in cases involving a victim’s death. Furthermore, individuals who plead insanity in murder cases are no more successful in being found NGRI than persons charged with other crimes. Myth 3: There is no risk to the defendant who pleads insanity. Defendants who asserted an insanity defense at trial and who were ultimately found guilty of their charges served significantly longer sentences than defendants tried on similar charges but did not assert the insanity defense. The same ratio is found when exclusively homicide cases are considered. Myth 4: NGRI acquittees are quickly released from custody. Of all the individuals found NGRI over an 8-year period in one jurisdiction, only 15% had been released from all restraints, 35% remained in institu- tional custody, and 47% were under partial court restraint following conditional release. Myth 5: NGRI acquittees spend much less time in cus- tody than do defendants convicted of the same offenses. Contrary to this myth, NGRI acquittees actually spend almost double the amount of time that defendants convicted of similar charges spend in prison settings and often face a lifetime of postrelease judicial oversight. Myth 6: Criminal defendants who plead insanity are usually faking. This is perhaps the oldest of the insanity defense myths and is one that has bedeviled American jurisprudence since the mid-19th century. Of 141 indi- viduals found NGRI in one jurisdiction over an 8-year period, there was no dispute that 115 were schizophrenic (including 38 of the 46 cases involving a victim’s death), and in only three cases was the diagnostician unable to specify the nature of the patient’s mental illness. Abolition and Limitation Proposals In the past two decades, state legislatures in Idaho, Montana, Kansas, and Utah have abolished the insan- ity defense, and in those jurisdictions, state supreme courts have subsequently held that abolition of the defense did not violate due process. Arizona stopped barely short of abolishing the insanity defense by cre- ating a “guilty except insane” verdict that eliminates the “nature and quality of the act” prong from the M’Naghten test. In one instance (Nevada), such aboli- tion was struck down as unconstitutional in Finger v. State of Nevada (2001), with the majority of the sharply divided court finding that legal insanity was a “fundamental principle” entitled to due process pro- tections. The court reasoned as follows: Mens rea is a fundamental aspect of criminal law. Thus it follows that the concept of legal insanity, that a person is not culpable for a criminal act because he or she cannot form the necessary mens rea, is also a fundamental principle. (p. 80) The U.S. Supreme Court recently addressed ques- tions raised in Arizona’s insanity defense: Whether due process prohibits Arizona’s use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong; and whether Arizona violates due process in restricting consideration of defense evidence of men- tal illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged (known in legal shorthand as the mens rea, or guilty mind). ( Clark v. Arizona, 2006) 166 ———Criminal Responsibility, Defenses and Standards C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 166