toral training and professional certification options in foren- sic psychology support the development of a profes- sion that is uniquely qualified to address mental health issues in a wide variety of legal contexts. The development of psychology and law as a field of scholarship, practice, and education has numerous soci- etal benefits and is consistent with the trend toward inter- disciplinary inquiry. Although welcome in these respects, the marriage between these two broad disciplines poses several boundary challenges. Psychology and law is inter- disciplinary in that it encompasses the fields of psychol- ogy and law. It is also inter-subdisciplinary in that it encompasses all the traditional subdisciplines of psychol- ogy. Given the lack of “ownership” of this field by any one discipline or subdiscipline, the lack of comprehensive references sources (e.g., textbooks, handbooks, encyclo- pedias) is particularly acute. A comprehensive encyclope- dia of psychology and law represents an attempt to help xxxiii Introduction FM-Cutler (Encyc) Vol-1-45463.qxd 11/18/2007 12:42 PM Page xxxiii fill this substantial gap in the holdings of academic, pro- fessional, and personal libraries. It is our hope that this resource will be of immense help for scholars, practition- ers, and students of psychology and law. Organization of the E E n n c c y y c c l l o o p p e e d d i i a a o o f f P P s s y y c c h h o o l l o o g g y y a a n n d d L L a a w w The Encyclopedia of Psychology and Law addresses the interface of the two named disciplines and draws from the related discipline of criminal justice. As is typical of encyclopedias, the entries in the Encyclopedia of Psychology and Law are listed in letter-by-letter order, in this case from the Ackerman-Schoendorf Parent Evaluation of Custody Test (ASPECT) to Wrongful Conviction (our efforts to identify key concepts in “X,” “Y,” or “Z,” were unsuccessful). The enthusiastic reader who tackles this two-volume set from beginning to end will learn a great deal about the trees but little about the forest, for alphabetical order corresponds with no other meaningful organizing principle among these headwords. Readers are strongly advised, therefore, to study or at least consult the Reader’s Guide. The Reader’s Guide organizes the headwords into meaningful themes as follows: • Criminal Competencies • Criminal Responsibility • Death Penalty • Divorce and Child Custody • Education and Professional Development • Eyewitness Memory • Forensic Assessment in Civil and Criminal Cases • Juvenile Offenders • Mental Health Law • Psychological and Forensic Assessment Instruments • Psychology of Criminal Behavior • Psychology of Policing and Investigations • Sentencing and Incarceration • Symptoms and Disorders Relevant to Forensic Assessment • Trial Processes • Victim Reactions to Crime • Violence Risk Assessment Each entry falls into at least one of the Reader’s Guide categories, and many entries appear in multiple categories. The Reader’s Guide itself provides one approach to partitioning the field of psychology and law. Although we make no claims that our list of headwords is exhaustive, the relative size of the Reader’s Guide cate- gories probably provides an estimate of the relative atten- tion paid to these topics in the scholarly literature. For example, Eyewitness Memory is a very popular field of study and a very well-populated Reader’s Guide category. Brewing the E E n n c c y y c c l l o o p p e e d d i i a a Developing the list of headwords was a most unusual task. We used somewhat of an “hourglass” approach in developing the headword list. First, we developed the Reader’s Guide—that is, the set of categories under which the entries would be classified. Guided by a vari- ety of resources at our disposal (e.g., psychology and law textbooks, journals, library databases), we developed a set of categories that seemed to us to span the breadth of psychology and law. Using these categories, we devel- oped several drafts of a headword list to the point at which we were ready to receive additional expert input. To obtain such input, we assembled an advisory board consisting of 17 distinguished scholars and practitioners from the United States, Canada, Europe, and Australia. The scholarship and practice interests of this group are diverse and span the broad field of psychology and law. This distinguished group included previous and current editors of psychology and law journals, past presidents of professional organizations of psychology and law, authors of numerous books and articles on psychology and law topics, and experienced practitioners in the forensic arenas. Members of the advisory board were sent the draft list of headwords and asked to recommend additions, deletions, and modifications to the list and to nominate authors for the headword entries. Their responses were enormously helpful in refining the list of headwords and identifying experts as potential contribu- tors. The advisory board played a very significant role in shaping the content of the Encyclopedia of Psychology and Law . Its members also demonstrated strong enthusi- asm for the project as a whole, confirming my belief that this resource will be important and useful. The suggestions provided by the advisory board were integrated, and a near-final draft of the headword xxxiv ———Encyclopedia of Psychology and Law FM-Cutler (Encyc) Vol-1-45463.qxd 11/18/2007 12:42 PM Page xxxiv list was developed. We also developed our list of potential contributors. We sent contributors formal invitations to write entries, together with instructions and information on the Encyclopedia of Psychology and Law . Many contributors graciously accepted our invitations; others, for a variety of reasons, were unable to do so. Fortunately, the rich information pro- vided by the members of the advisory board contained numerous backup options, and over time we obtained commitments from contributors for all the entries. During this phase, the contributors, who had access to the full list of headwords, made additional excellent suggestions for new headwords, and we made some additional revisions to the headword list. The resulting list of contributors is impressive. The list includes distinguished scholars—individuals responsible for the first or most impressive scholarship on the topics about which they wrote. It also includes distinguished practitioners—psychologists and lawyers with extensive experience in these topics in actual cases. The list includes many junior and midcareer scholars and practitioners well on their way toward establishing distinguished careers in psychology and law. Finally, the list includes the very important voices of graduate students in psychology and law. The American Psychology-Law Society, a primary affiliation of many psychology and law scholars, has historically been warmly receptive and encouraging to graduate student members and continues to be so. Training the next gen- eration of psychology and law scholars has been a very high priority for members of the Society. Many contrib- utors to these volumes asked if their graduate students could be included as co-authors—sometimes as first authors—of their entries, and such requests were granted. We are delighted that the voices of graduate students are represented in this project. Well before all the invitations were accepted and the headword list completed, we started to receive draft entries. The Editor read each entry as it was received, occasionally requesting peer review from the Associate Editor or other scholars with relevant expertise. Modifications were requested as necessary. Once the entries were accepted, they were forwarded to our Developmental Editor, Diana Axelsen, for her expert review and were eventually submitted for copyediting and publication. The quality of the entries is excellent. Contributors provided hundreds of well-organized, well-written, balanced descriptions of the numerous psychology and law topics covered in the Encyclopedia . Once the entries were complete we revisited the Reader’s Guide and made some modifications based on full knowledge of the content received. The end result is an outstanding collection of entries describing a very broad array of contemporary and historical psychology and law topics. It is our hope that these volumes will serve their intended purpose—that is, to inform scholars, practitioners, and students who share the interests of my editorial team, the advisory board, and the hundreds of contrib- utors to this exciting field of scholarship and practice. Acknowledgments Several individuals are due recognition for their efforts on behalf of this project. Michael Carmichael and Rolf Janke of Sage were instrumental in launching this pro- ject. Diana Axelsen, Developmental Editor, provided immense expertise, collegiality, and social support from the project’s inception to its completion. Sanford Robinson and Kate Schroeder lent their expertise as editors. Letitia Gutierrez, Reference Systems Manager at Sage, expertly managed the publication software that kept this project organized and on track. The University of North Carolina at Charlotte and John Jay College of Criminal Justice, City University of New York, must be recognized for supporting the editorial team throughout this project. The Cutler, Zapf, and Greathouse families also supported the edi- torial team as they no doubt substituted family time for work time to pursue this project, and they deserve our gratitude. A special thanks is also due to Dr. Steven Rogelberg, a colleague and close friend, who as editor of the previously published Encyclopedia of Industrial and Organizational Psychology generously provided expertise and social support, which enhanced the qual- ity and efficiency of our work. Brian L. Cutler Patricia A. Zapf Sarah Greathouse Introduction ———xxxv FM-Cutler (Encyc) Vol-1-45463.qxd 11/18/2007 12:42 PM Page xxxv 1 A CKERMAN -S CHOENDORF P ARENT EVALUATION OF C USTODY T EST (ASPECT) The Ackerman-Schoendorf Parent Evaluation of Custody Test (ASPECT) was among the first forensic assessment instruments developed specifically for use in the area of parenting disputes. Its design requires the user to develop multiple data sources. The ASPECT laid the foundation for further search for objective, data-intensive assessment in this highly complex area of forensic work. Description of the Instrument The ASPECT is designed specifically to assist the eval- uator in gathering information to be used in court- related assessments. It was one of the first instruments to be developed for the complex purpose of assessing a family when parenting time and responsibility are in dispute. This instrument relies on multiple data sources, including some psychological measures with good psy- chometric properties. It provides a structured approach to data collection and assimilation, ensures that the same evaluative criteria are applied to both parents, and attempts to quantify the results in a way that allows for comparison of their parental competency. In its concep- tion and design, some effort was made to ensure that it was a reliable and valid measure that would convert the highly subjective child custody evaluation process to a more objective, deliberate, and defensible forensic technique. The ASPECT comprises 56 items to be answered by the evaluator after a series of interviews, observa- tions, and tests have been completed. The tests include the Minnesota Multiphasic Personality Inventory–2 (MMPI–2), the Rorschach, the Thematic Apperception Test/Children’s Apperception Test (TAT/CAT), projec- tive questions, projective drawings, and intellectual and achievement testing. Parents also complete a 57- item Parent Questionnaire. Selected data from the tests comprise the answers to 15 of the 56 evaluator ques- tions; the other 44 questions address material to be deduced from the Parent Questionnaires, interviews, and observations. There are 12 critical items that are said to be significant indicators of parenting deficits. The 56 items are, according to the authors, equally weighted based on a rational approach and are com- bined to form a Parental Custody Index (PCI) for each parent. The three subscales, the Observational Scale, the Social Scale, and the Cognitive-Emotional Scale, have not proven to be useful, according to the authors, and should not be used for interpretation. The mean PCI is 78, and the standard deviation is 10. The authors suggest that if parents’ PCI scores are within 10 points of one another, joint custody with sub- stantially equal placement is recommended; if they are more than 20 points apart, the higher-scoring parent is substantially more fit to parent, and primary place- ment with the possibility of sole custody should be explored. When scores are between 10 and 20 points apart, the authors recommend more closely scrutinizing collateral information to determine the appropriate cus- tody arrangement. The standardization demographic ( n = 200) of the ASPECT was predominately white and relatively homogeneous. A A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 1 The test manual for the ASPECT reports high lev- els of interrater reliability. As evidence of validity, the authors claim that in judicial dispositions of 118 of the 200 cases in the normative sample for which outcome data were available, there was a 91% hit rate of dispo- sitions matching recommendations. Limitations of the ASPECT There are significant weaknesses in the basic con- ceptualization and the psychometric properties of the ASPECT, as its authors concede. Critics have noted that there was inadequate research to establish the constructs to be measured and their relevance to com- petent parenting. Instrument selection for its compo- nent parts was done without sufficient analysis to determine whether the data collected added incremen- tal validity to the assessment of parenting strengths. Although a number of the factors to be considered by the user may seem to be logically associated with par- enting, some clearly lack such inferential connected- ness, and no empirical link is provided. Further research is needed to support the cut score recommended by the authors, as well as to support the ideas that high PCI scorers are more effective parents, that sole custody is the best arrangement for children of parents who have disparate PCI scores, and that 20 points is sufficiently disparate for a recommendation of sole custody. Finally, further data are needed to support the implicit notion that the ASPECT takes into account all relevant data to be considered by the evaluator in for- mulating recommendations, if any, to be offered to the court for apportionment of parenting time and responsi- bility. The ASPECT’s relevance and reliability have not been adequately demonstrated to justify its use for the court-referred assessments for which it was designed. Mary Connell See also Divorce and Child Custody Further Readings Ackerman, M. J. (2005). The Ackerman-Schoendorf Scales for Parent Evaluation of Custody (ASPECT): A review of research and update. Journal of Child Custody, 2 (½), 179–193. Connell, M. A. (2005). Review of “The Ackerman- Schoendorf Scales for Parent Evaluation of Custody” (ASPECT). Journal of Child Custody, 2, 195–209. Heinze, M. C., & Grisso, T. (1996). Review of instruments assessing parenting competencies used in child custody evaluations. Behavioral Sciences and the Law, 14, 293–313. Otto, R. K., & Edens, J. F. (2003). Parenting capacity. In T. Grisso (Ed.), Evaluating competencies: Forensic assessments and instruments (2nd ed., pp. 229–307). New York: Kluwer Academic/Plenum. A DJUDICATIVE C OMPETENCE OF Y OUTH Although the early juvenile justice system did not require that adolescent defendants be able to under- stand and participate in their legal proceedings, courts have increasingly required that adolescent defendants, like adult criminal defendants, be competent to pro- ceed to adjudication (competent to stand trial). This has raised a unique set of challenges for the courts and mental health clinicians. Research has indicated that young adolescents have high rates of deficits in com- petence-related legal capacities in comparison with adults. As described below, however, little is known about assessing and treating adjudicative incompe- tence in youth, and legal standards regarding youths’ adjudicative competence remain unclear. Legal Standards for Juvenile Competence Since the 1700s, the legal system has required that adult defendants tried in criminal courts be competent to proceed to adjudication. More specifically, the law requires that criminal defendants be able to under- stand the nature of the legal proceedings, appreciate the significance and possible consequences of these proceedings, communicate with their attorney, and reason about relevant legal decisions, such as how to plead. If defendants lack these capacities, they can be found incompetent, in which case their adjudication is typically suspended, and they are treated in an effort to restore their competence. The early juvenile justice system, which was devel- oped in Illinois in 1904, did not require that adolescent defendants be competent to proceed to adjudication. Because early juvenile justice was designed to be reha- bilitative rather than punitive, it was not considered nec- essary that youth be able to understand and participate 2 ———Adjudicative Competence of Youth A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 2 in their legal proceedings. However, during the 1990s, public concerns about youth violence rose to significant levels and drove a series of key legislative changes that allowed the transfer of adolescents to adult court to become easier and more common and for juveniles tried in juvenile court to be given harsher penalties. Given the adultlike penalties that can now be given to youth, courts have increasingly required that adoles- cent defendants be competent to proceed to adjudica- tion. At present, the specific nature of competence standards in juvenile courts remains unsettled. Although courts have generally required that adolescents have the same types of legal capacities as adults, some jurisdic- tions have held that lower levels of these capacities may suffice for adolescents in juvenile court. Another issue that remains undetermined pertains to possible bases for findings of incompetence among adolescents. Although mental disorders and mental retardation are the most commonly recognized sources of incompetence, some adolescents may be incompe- tent owing to developmental immaturity rather than mental disorders or mental retardation. However, it is currently unclear whether jurisdictions will recognize developmental immaturity as a legitimate basis for a finding of incompetence. Possible Sources of Adjudicative Incompetence in Youth Legal deficits in youth may stem from very different sources. One possible cause of incompetence may be mental disorders. For instance, a young girl with a thought disorder may have a paranoid delusion that her attorney is conspiring against her and thus refuse to tell her attorney critical information regarding her case, a youth with symptoms of attention-deficit/hyperactivity disorder may have difficulty attending to court pro- ceedings and managing his courtroom behavior, and a young girl with a depressive disorder may be unmoti- vated to adequately defend herself due to feelings of worthlessness. A second possible cause of incompetence is mental retardation or severe cognitive deficits. Research has found that youth who have cognitive deficits are much more likely than other youth to demonstrate deficits in legal capacities relevant to adjudication. In addition to mental disorders and cognitive deficits, however, ado- lescents may also have impaired legal capacities simply due to normal developmental immaturity. Evidence for maturity-related legal deficits is provided by the MacArthur Juvenile Adjudicative Competence study. In this important study, Thomas Grisso and his colleagues examined the legal capacities of 927 adolescents and 466 adults from detained and community sites. Results indicated that young adolescents were more likely to demonstrate legal impairments than adults. Specifically, one third of youth aged 11 to 13 and one fifth of youth aged 14 to 15 demonstrated significant impairments in the understanding of legal proceedings and/or legal rea- soning. In addition, young adolescents performed in a manner that suggested that they are less likely to recog- nize the risks and long-term consequences of legal judg- ments than older individuals. While it is often assumed that experience with the legal system will mitigate any limitations in youths’ legal capacities, this is not necessarily the case. Considerable research has indicated that simply hav- ing court experience does not equate to having ade- quate legal capacities. The high rates of legal deficits in young adolescents may, in part, stem from the fact that youths’ cognitive capacities may not yet have reached their adult poten- tial. In addition, experts, including Elizabeth Scott, Lawrence Steinberg, and colleagues, have emphasized that psychosocial immaturity may also contribute to age-related impairments in competence-related legal capacities. Specifically, developmental psychology provides evidence that adolescents are more likely than adults to have difficulties in recognizing the conse- quences of their decisions, are more likely to be influ- enced by peers, and tend to act in an impulsive manner. The research findings on youths’ legal capacities raise a number of important issues for the legal sys- tem. While the legal system automatically assumes that adolescents, including young adolescents, are competent to stand trial unless proven otherwise, the high rate of legal impairments among young adoles- cents questions the appropriateness of this presump- tion. In addition, given that a high rate of young adolescents could show limited legal capacities, there is a considerable need for methods to assess adoles- cents who may be incompetent to proceed to adjudi- cation and for strategies to remediate youths who are found incompetent. Assessment of Youths’ Adjudicative Competence When an attorney or judge has concerns about a par- ticular youth’s adjudicative competence, the court will Adjudicative Competence of Youth ——— 3 A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 3 order that the youth be evaluated by a mental health professional to assess the youth’s competence. These assessments differ considerably from general mental health evaluations in that they focus on youths’ competence-related capacities as opposed to general mental health issues. In addition, juvenile competence assessments require procedures that differ somewhat from adult competence assessments. Specifically, juvenile evaluations should carefully assess youths’devel- opmental matur ity and consider contextual issues that are unique to adolescents, including possible care- taker involvement in legal proceedings. As described by the leading expert in this field, Thomas Grisso, a key goal of juvenile competence evaluations is to describe the youths’ functional legal capacities. In particular, competence reports should describe youths’ understanding of important aspects of legal proceedings (e.g., understanding of the role of judges and attorneys), appreciation of the significance of legal proceedings (e.g., appreciation of the possi- ble penalties that could be applied to them if found guilty), ability to communicate with counsel (e.g., the ability to disclose important information about their cases to their attorneys), and legal reasoning (e.g., the ability to weigh various plea options). In evaluating youths’ functional legal abilities, evaluators should consider how a specific youth’s legal capacities match with the nature of his or her par- ticular case. A finding of incompetence occurs when there is a significant mismatch between a particular defendant’s legal capacities and the demands created by his or her particular case. For instance, if a youth who is charged with aggravated assault is going to be tried in adult court, where he or she will likely have to testify for lengthy periods of time, it will be important that the youth have the capacity to testify rele- vantly, an understanding of the transfer process, and an appreciation of the types of penalties that may be given to him or her in adult court. In contrast, if this youth’s case was being handled in juvenile court and he or she had decided to accept a plea bargain instead of standing trial, it would not be as critical that he or she have a high level of testifying capacities, but it would be essential that he or she have a good under- standing of plea bargains. If a youth is found to have significant legal deficits in one or more the relevant areas (e.g., understanding, appreciation, communication with counsel, reasoning), the evaluator should attempt to provide information on possible causes of these legal deficits, such as whether the legal deficits appear to stem from a particular men- tal disorder and/or developmental immaturity. In addi- tion, if a youth is found to have legal deficits, evaluators should offer opinions and recommendations regarding possible interventions to address these legal deficits. Until recently, there have been no tools specifically for assessing youths’ legal capacities. However, in 2005, Grisso developed a guide, called the Juvenile Adjudicative Competency Interview, to help structure assessments of youths’ competence. The Juvenile Adjudicative Competency Interview is not currently a standardized instrument but instead functions as a guide to help ensure that clinicians consider key developmental and legal issues in assessing juveniles’ adjudicative competence. While some instruments that have been developed for adult defendants may have relevance to juvenile competence evaluations, caution is needed in applying adult instruments to youth; instruments that have been found to be reliable and valid with adults cannot be assumed to be reliable and valid with adolescents. Research has provided some preliminary support for the psychometric properties of the Fitness Interview Test–Revised when used with adolescents. Also, a number of evaluators report using the Competence Assessment for Standing Trial for Defendants with Mental Retardation with adolescent defendants, because its format is thought to be easier for adoles- cents to understand. However, research has yet to examine the psychometric properties of this tool with adolescent defendants. Interventions for Remediating Incompetent Youth After a competence evaluation has been conducted, the court must decide whether to find a youth incom- petent. If a youth is found incompetent and is believed to be remediable, the trial will be suspended until he or she is considered to be competent. If the youth is considered to be unremediable, then his or her charges may be dropped and/or he or she may be referred to alternative services, such as inpatient mental health treatment. At the present time, very little is known about how to remediate youth who are found incompetent to stand trial. However, there is reason to believe that this process may be challenging, especially when youth are found incompetent on the basis of mental retardation and/or developmental immaturity. Some research, using data 4 ———Adjudicative Competence of Youth A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 4 from the MacArthur Juvenile Adjudicative Compe- tence study, has found that young adolescents may be less likely than older individuals to benefit from brief teaching interventions targeted at improving their under- standing of basic legal concepts, such as the role of judges and attorneys. It may be even more difficult to teach youth how to apply legal concepts to their own cases and how to reason about legal decisions. Given the high rates of legal deficits among young adolescents and the increasing numbers of adolescents who are being found incompetent, research in this area is greatly needed. Jodi L. Viljoen See also Capacity to Waive Rights; Juvenile Offenders; Mental Health Needs of Juvenile Offenders Further Readings Grisso, T. (2005). Evaluating juveniles’ adjudicative competence: A guide for clinical practice. Sarasota, FL: Professional Resource Press. Grisso, T., Steinberg, L., Woolard, J., Cauffman, E., Scott, E., Graham, S., et al. (2003). Juveniles’ competence to stand trial: A comparison of adolescents’ and adults’ capacities as trial defendants. Law and Human Behavior, 27, 333–363. Scott, E. S., Reppucci, N. D., & Woolard, J. L. (1995). Evaluating adolescent decision making in legal contexts. Law and Human Behavior, 19, 221–244. Viljoen, J. L., & Grisso, T. (in press). Prospects for remediating juveniles’ adjudicative incompetence. Psychology, Public Policy, and the Law . A DULT A TTACHMENT I NTERVIEW (AAI) The Adult Attachment Interview (AAI), developed by Mary Main and associates, has been identified as an effective, psychometrically sound instrument with which to measure an individual’s internal working model or state of mind regarding childhood attachment. The potentially detrimental influences of poor recall, social desirability, and naive lying associated with self-report measures of childhood attachment are substantially bypassed with the AAI. The AAI does not make classifi- cations based primarily on reported events in childhood but rather on the thoughtfulness and coherency with which the adult is able to describe and evaluate these childhood experiences and their effects. The AAI is a structured, semiclinical 20-question interview designed to elicit the individual’s account of his or her childhood attachment experiences, together with his or her evaluations of those experiences on present functioning. It explores the quality of these childhood relationships and the memories that might justify them. The AAI is transcribed verbatim, with all hesitations carefully recorded and with only the tran- script used in the analysis of the interview. The AAI results in five classifications of state of mind regarding childhood attachment, which parallel those derived from M. D. S. Ainsworth’s system, which is based on the “Strange Situation.” Briefly, this procedure entails having the child enter an unfamiliar laboratory setting with a stranger present, filled with toys, with his or her caregiver. The caregiver then leaves twice and returns twice over a 20-minute period. Based on their responses, individuals are classified into one of the five attachment categories described below. Individuals with a Secure state of mind regarding attachment value relationships and grow to desire intimacy with others. Individuals classified as Dismissing tend to be devaluing of relationships. Such individuals may idealize relation- ships from their past but are cut off from related feelings or dismiss their significance. They may also be derogat- ing of attachment in that they demonstrate a contemptu- ous dismissal of attachment relationships. Individuals with a Preoccupied state of mind are described as con- fused and unobjective. They may seem passive, vague or angry, conflicted, and unconvincingly analytical. The Unresolved category deals specifically with loss and abuse, and the Cannot Classify category is used when an individual does not fit clearly into any of the other clas- sifications. Individuals categorized into one of the two disorganized patterns (i.e., Unresolved or Cannot Classify) of attachment can always be assigned to a best- fitting organized (Secure, Dismissing, Preoccupied) clas- sification as well. That is, all individuals are believed to have one overriding organized state of mind regarding childhood attachment. Several studies have examined the psychometric properties of the AAI (see Marinus H. van Ijzendoorn and Marian J. Bakermans-Kranenburg, 1996, for a summary). The AAI state-of-mind classifications are stable across 5-year periods, within 77% to 90%. One study found that individuals’ response to the Strange Situation at 1 year of age was highly correlated (80%) to their AAI classification 20 years later. The AAI has Adult Attachment Interview (AAI) ——— 5 A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 5 6 ———Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases been found to be unrelated to measures of intelligence, to both long- and short-term memory, to discourse pat- terns when individuals are interviewed on other topics, to interviewer effects, and to social desirability. Meta- analytic work has also supported the use of the AAI across several populations, including high-risk groups. Tania Stirpe and colleagues employed the AAI with various groups of sexual offenders, examining five groups of subjects: extrafamilial child molesters (child molesters), intrafamilial child molesters (incest offenders), and sexual offenders against adult females (rapists) and two nonsex- ual offender comparison groups (violent and nonviolent). In addition, groups were compared with reference to nor- mative data on the AAI. Results indicated that the major- ity of sexual offenders were insecure in their state of mind regarding attachment, representing a marked difference from normative samples. Although insecurity of attach- ment was common to all groups of offenders rather than specific to sexual offenders, there were important differ- ences between groups with regard to the type of insecurity. Most notable were the child molesters, who were much more likely to be Preoccupied in their state of mind regard- ing attachment. Rapists, violent offenders, and, to a lesser degree, incest offenders, were more likely to have a Dis- missing state of mind regarding attachment. Although still most likely to be judged Dismissing, nonviolent offenders were comparatively more likely than the other groups to be Secure. There were no differences between groups when Unresolved and Cannot Classify AAI classifications were considered. These findings provide evidence for the specificity of insecure attachment with regard to sexual offending, over and above its possibly more general influ- ence on criminality. Implications and Areas for Future Study Research using the AAI has implications for the assess- ment and treatment of sexual offenders. Identifying the state of mind regarding attachment, together with its associated beliefs and interpersonal strategies, may provide valuable insight into the motivational strategies underlying offenses. As S. W. Smallbone and associates have argued, the intimacy problems faced by an indi- vidual whose offending is characterized by a devaluing of attachment are very different from those faced by one who fears rejection and offends in an attempt to cultivate a “relationship” with the victim. Research suggests that early insecure attachment experiences may place some men at risk for later offending. More specifically, some have suggested that these early experiences may contribute to sexual offending within a particular interpersonal context. Further research is required; however, the current empirical literature represents an important step in incorporating attachment theory into the etiology of sexual offending and in acknowledging that sexual offending may be constructively understood in terms of the relationship context in which it takes place. The AAI is the “gold standard” in attachment research but has rarely been used with forensic populations. Tania Stirpe, Jeffrey Abracen, and Janice Picheca See also Parent-Child Relationship Inventory (PCRI); Sex Offender Assessment; Sex Offender Treatment Further Readings Main, M., & Goldwyn, R. (1998). Adult attachment rating and classification systems: Adult attachment coding manual . Unpublished scoring manual, Department of Psychology, University of California, Berkeley. Smallbone, S., & Dadds, M. (1998). Childhood attachment and adult attachment in incarcerated adult male sex offenders. Journal of Interpersonal Violence, 13 (5), 555–573. Stirpe, T., Abracen, J., Stermac, L., & Wilson, R. (2006). Sexual offenders’ state-of-mind regarding childhood attachment: A controlled investigation. Sexual Abuse: A Journal of Research and Treatment, 18, 289–302. van Ijzendoorn, M. H., & Bakermans-Kranenburg, M. J. (1996). Attachment representations in mothers, fathers, adolescents, and clinical groups: A meta-analytic search for normative data. Journal of Consulting and Clinical Psychology, 64 (1), 8–21. Ward, T., Hudson, S., Marshall, W., & Siegert, R. (1995). Attachment style and intimacy deficits in sexual offenders: A theoretical framework. Sexual Abuse: A Journal of Research and Treatment, 7 (4), 317–335. A GGRAVATING AND M ITIGATING C IRCUMSTANCES , EVALUATION OF IN CAPITAL C ASES If a defendant is found guilty of a capital crime, the tri- ers of fact are called on to weigh the significance of the aggravating and mitigating factors of the case and to A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 6 use such judgments to decide whether the defendant will receive the death penalty or a life sentence. During the sentencing phase, the prosecution presents the rele- vant aggravating factors of the case, while the defense is charged with the duty of providing mitigation factors. Although no standard model exists to offer procedures for the investigation of mitigating factors, scholars, clinicians, and researchers have offered recommen- dations concerning the common types of information needed and the appropriate ways to present it to the jury. In all cases, a mitigation evaluation is conducted with the goal of humanizing the defendant to the jury, in the hope that they will not recommend the death penalty. During the penalty phase of a capital offense trial, the triers of fact (i.e., the judge or jury depending on the state) are presented with two types of information: (1) aggravating factors (i.e., facts from the case that make it especially serious or heinous) and (2) mitigat- ing factors (i.e., facts from the case that may reduce the defendant’s moral culpability). As set forth in Ring v. Arizona (2002), to come forward with a recommen- dation for death, the jury must first be convinced beyond a reasonable doubt that the state has met its burden of proof with respect to the presence of one or more aggravating factors. Once this has been done, the defense is required to present mitigating factors with the goal of convincing the trier of fact that this individual does not deserve the penalty of death. The driving force behind this practice is the U.S. Supreme Court’s assertion in Furman v. Georgia (1972) that sentences in capital cases should be individualized and should not be disproportionate or inappropriate given the mitigating factors in the case. Aggravating factors in a capital case are often read- ily apparent from the circumstances of the crime. Like other states, the state of Texas has statutory aggravat- ing factors that are precisely defined. Three examples of the criteria set forth by the Texas Penal Code are (a) if the person murders more than one person during the same criminal transaction; (b) if the person mur- ders an individual under 6 years of age; and © if the person intentionally commits a murder in the course of committing (or attempting to commit) kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation. In contrast to aggravating factors, which are estab- lished by statute, mitigating factors can be anything the defense chooses to present that it believes may sway the trier of fact to determine that life without parole is the proper and just sentence in the particular case. The following list provides just a few examples of the most common mitigating factors that are brought forward in a capital trial: history of neglect and/or abuse during the formative years, the presence of a mental illness, youthfulness, and a limited history of involvement with the legal system. It was in Lockett v. Ohio (1978) that the U.S. Supreme Court decided that limiting the type and amount of mitigating factors that can be presented to the trier of fact is unconstitutional. When deciding the sentence for a defendant who has been found guilty, jurors are asked to weigh the aggravating circumstances against the mitigating cir- cumstances of the case. Each state has its own laws regarding how jurors are instructed to weigh aggravat- ing and mitigating circumstances, but in all states, each individual juror must weigh the circumstances and decide whether the defendant is sentenced to death or life in prison. In many states, the death penalty can be imposed only if the jury returns a unan- imous decision. With respect to the process of conducting a mitiga- tion evaluation, the onus is on the defense team to con- duct a thorough investigation of all possible mitigating factors. To complete such an investigation, it is recom- mended that the defense team hire one or more profes- sionals to carry out the various tasks required for the investigation and presentation of mitigating circum- stances. In Wiggins v. Smith (2003) , the U.S. Supreme Court ruled that failure on the part of the defense team to properly investigate and introduce mitigating evi- dence can result in a finding of ineffective assistance of counsel, leaving open the possibility that the verdict will be overturned on appeal. Perhaps the most traditional form of investigation is that carried out by a professional known as a mitiga- tion specialist . Although social workers often serve in this role, other professionals, such as paralegals, legal researchers, and attorneys, also work in this capacity. Regardless of the profession, the role of the mitigation specialist requires a commitment to uncover all possible mitigating factors, and to do this, it is imperative that he or she has a wide repertoire of knowledge and skills. For example, it is expected that the specialist be well versed in the field of human development and be skilled in the areas of data collection, interviewing, and putting together a person’s life history. At a minimum, the miti- gation specialist should request and receive records that are reflective of the defendant’s life history (e.g., med- ical records, mental health records, and school records), Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases ——— 7 A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 7 conduct interviews with a variety of individuals who are familiar with the defendant (e.g., parents, siblings, friends, employers, teachers, therapists), and conduct multiple interviews with the defendant. In many cases, it is also critical that the mitigation specialist investigate the life histories of the defendant’s parents and other members of their immediate and extended family. Such information is important with respect to being able to evaluate both genetic and environmental influences on the defendant’s development. Given the breadth of the investigation required, it is recommended that it be ini- tiated long before the trial is set to begin. The goal of the mitigation specialist is to compile information concerning the defendant’s life history that will offer insight into how the defendant’s life experi- ences have shaped his or her development. Presentation of such information is aimed at humanizing the individ- ual to the degree that the trier of fact recommends a life sentence. It should be clear, however, that the goal of mitigation is not to excuse the defendant’s behavior but instead to explain how an individual can become the type of person who could be in a position to commit a capital offense. Depending on their credentials and the role that they have been asked to play, mitigation specialists may or may not testify as to the information gathered. In cases where they do not testify, the information they gather is provided to one or more appropriate professionals. These individuals not only will present the information to the court but also will be expected to present it in such a way that it is accessible to the jury. For example, a psychologist or a social worker may testify about the defendant’s childhood development, the impact of childhood abuse, the impact of being raised without a father figure in the home, and any mental illness he or she may have experienced. A neuropsychologist may provide expert opinions regarding the influence of trau- matic brain injury on the defendant’s functioning, and an anthropologist or sociologist may testify to the effects of sociological or economic factors related to the defendant’s neighborhood that may have influenced the defendant’s developmental trajectory. Regardless of who presents the mitigation informa- tion to the court, recent literature has recommended that the presentation of such information be structured on the concepts of risk factors, protective factors, and resiliency. In brief, risk factors can be described as events in an individual’s life that have been scientifi- cally linked to negative outcomes in functioning. Examples of common risk factors in capital defendants include childhood or adult trauma, childhood abuse or neglect, poverty, substance abuse, negative peer groups, cognitive impairment, and a diagnosis of conduct disor- der in childhood or adolescence. Research has shown that individuals who have experienced multiple risk factors during their development are at a greater likeli- hood of exhibiting dysfunction in multiple domains. The individuals who are retained to testify about such risk factors have an obligation not only to deliver their findings to the court but also to illustrate how those risk factors influenced the development of this defendant. To further the defense team’s endeavor of obtaining a non–death sentence, the mitigation expert(s) should also discuss the relevant protective factors that the defendant has experienced. Protective factors can be described as those events or experiences in the defen- dant’s life that may have lessened the likelihood that the defendant would have engaged in violent or dan- gerous behavior in the past. Examples of common protective factors include social support from family and friends, prior involvement in mental health treat- ments, and financial stability. It is quite typical for an expert to discuss how the absence of protective factors negatively affected the defendant’s developmental tra- jectory and if protective factors were present, why they did not buffer the defendant against the negative influence of the risk factors. The final dimension of mitigation presentation should include a discussion of the defendant’s lack of resilience in the context of his or her experience with risk and protective factors. Resilience refers to the abil- ity of individuals who have experienced great adversity to overcome such experiences and live a functional life in adulthood. Since only a small minority of individuals who face great adversity during their development actu- ally go on to exhibit severe dysfunction in adulthood, it is important to convey to the jury how the defendant’s unique combination of risk and protective factors, along with his or her response to them, led to the violent behavior for which the defendant has been convicted. To date, research has not found any one strategy that is successful in all cases, nor has research identified any one mitigating factor that influences juror decision making in all cases. On the contrary, it is likely that the success of mitigation relates to the quality of the inves- tigation and the presentation of information that is unique to the case. As such, it would be inappropriate for defense attorneys and other members of the defense team to think that there is a template that can be applied to these investigations. Finally, it should be noted that 8 ———Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 8 even the most eloquent presentation of mitigation evi- dence can be insufficient to counteract the effects of intrinsic juror biases, impairments in understanding the concept of aggravating and mitigating factors, and mis- interpretation of instructions to the jury regarding how to weigh the evidence presented to them. Bridget M. Doane and Karen L. Salekin See also Aggravating and Mitigating Circumstances in Capital Trials, Effects on Jurors; Death Penalty; Expert Psychological Testimony, Forms of; Mental Illness and the Death Penalty; Mental Retardation and the Death Penalty Further Readings Connell, M. A. (2003). A psychobiographical approach to the evaluation for sentence mitigation. Journal of Psychiatry and Law, 31, 319–354. Fabian, J. M. (2003). Death penalty mitigation and the role of the forensic psychologist. Law and Psychology Review, 27, 73–120. Furman v. Georgia , 408 U.S. 238 (1972). Lockett v. Ohio , 438 U.S. 586 (1978). Miller, J. (2003). The defense team in capital cases. Hofstra Law Review, 31, 1117–1141. Ring v. Arizona , 536 U.S. 584 (2002). Salekin, K. L. (2006). The importance of risk factors, protective factors, and the construct of resilience. In M. Costanzo, D. Krauss, & K. Pezdek (Eds.), Expert psychological testimony for the courts . Thousand Oaks, CA: Sage. Schroeder, J., Guin, C. C., Pogue, R., & Bordelon, D. (2006). Mitigating circumstances in death penalty decisions: Using evidence-based research to inform social work practice in capital trials. Social Work, 51, 355–364. Wiggins v. Smith , 539 U.S. 510 (2003). A GGRAVATING AND M ITIGATING C IRCUMSTANCES IN C APITAL T RIALS , E FFECTS ON J URORS Aggravating factors are elements of the crime or the defendant’s prior criminal record that not only make the defendant eligible for the death penalty but also serve to make the defendant more likely to receive the death penalty. Mitigating factors are elements of the crime or the defendant’s character and background that could make the defendant less likely to receive the death penalty. Statutes across the United States list many aggravating and mitigating factors that could be presented at trial. The existing research in psychology and law shows that jurors are sensitive to some factors but not to others. Experimental research has compared hypothetical cases in which various aggravating and mitigating factors are either present or absent. Other research, especially the Capital Jury Project, has sur- veyed or interviewed jurors who served in a death penalty case about what factors they considered impor- tant when making their decision. Aggravating Factors Jurors are more likely to sentence to death defendants who have committed a heinous, brutal, or cruel murder. Such crimes include those involving a single victim who suffers a lot of pain before death and also crimes with multiple victims. The brutality of a murder trig- gers jurors’desire for retribution, or punishing someone for the harm that he or she has caused. Several lines of research show that jurors treat more severe crimes more harshly when assigning punishment in general, not just in death penalty cases. Jurors may not understand what the words heinous or atrocious mean, or they may believe that all murders are heinous. Thus, courts must instruct jurors that this aggravating factor is limited in some way, so that they are supposed to apply it only in cases involving torture, very serious physical abuse, or extreme depravity. However, even without such extreme case facts, jurors will sentence a defendant to death more often if the crime is more severe and causes more harm. Usually, in death penalty trials, a separate listed factor is included for murders with multiple victims, because heinousness is a specific legal term measuring how much suffering occurred before the victim’s death. Jurors also consider the future dangerousness of a defendant—whether he or she is likely to commit another serious crime. In some states, jurors are specif- ically asked to decide whether the defendant is likely to re-offend, but even when not asked, jurors often bring this issue up during deliberations. The more the jurors fear that the defendant could re-offend, or even be released on parole, the more likely they are to sen- tence the defendant to death. Similarly, if the defendant has a prior criminal record that includes violent crimes, he or she will be seen as more dangerous, and jurors are more likely to sentence that defendant to death than defendants with no prior record. Aggravating and Mitigating Circumstances in Capital Trials, Effects on Jurors ——— 9 A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 9 Jurors are also affected by victim characteristics and victim impact statements . If the victim is a public figure or a policeman, jurors are more likely to sentence the defendant to death. The murder of such a person causes more harm to the community and deserves a more severe punishment. Furthermore, jurors are allowed to con- sider whether the victim was particularly vulnerable— for instance, because of young or old age or disability. Some research supports an increase in death verdicts in cases of child victims, but little research exists on other aspects of victim vulnerability. Jurors can also consider the effect that the murder has on the victim’s surviving family, friends, and the community. Several studies have found that jurors are more likely to give the death penalty when there is a large amount of suffering by the victim’s family and the community. Courts and researchers debate whether these effects are the result of jurors’ sensitivity to an increase in the amount of harm caused or instead an emotional reaction to the testimony. Victim characteristics can be important even without victim impact statements. Some legal scholars and social scientists worry that jurors may be improperly considering the “worth” of the victim, or distinguishing between a good victim and a bad victim, which the law says they are not supposed to do. However, interviews with jurors suggest that jurors’ verdicts are different not necessarily because of a distinction between a good victim and a bad one but rather because of the similar- ity between the victim and themselves. Jurors can iden- tify or empathize more with a normal victim chosen at random than a victim who is part of the crime or involved in a risky situation. In fact, that the victim is the defendant’s accomplice or otherwise part of the crime is often a mitigating factor. Overall, victim char- acteristics are weighed heavily a lot by jurors. Many other aggravating factors exist in death penalty cases, such as committing the murder for financial gain, in the course of another felony, or after substantial plan- ning. However, research has not yet addressed the effect of these aggravating factors on jurors’ decisions. Mitigating Factors Although jurors have trouble understanding the legal definition of mitigating factors, there are some factors that affect their decisions. The factors that have the largest effect are, generally speaking, those that are out of the defendant’s control, are more severe, and reduce the defendant’s responsibility for the murder. Mental illness is the most powerful mitigating factor, even if it is not enough to make the defendant legally insane. Recognizing this large effect, the American Bar Association has recently called for the exclusion of severely mentally ill defendants from eligibility for the death penalty. Jurors likewise believe that a mental dis- order can make a defendant less responsible for his or her crime. However, all mental disorders are not the same. Severe and typical disorders, such as schizophre- nia and delusional disorders, will reduce the likelihood of a death sentence. Most studies also show that low IQ and “borderline” mental retardation also reduce death sentences, and defendants who are legally mentally retarded are not eligible for the death penalty at all. Disorders such as depression, antisocial personality dis- order, or bipolar disorder have less effect on jurors, if any. Not much research has addressed these types of mental illness. Researchers and courts recognize the fact that some mental disorders can be aggravating factors. The fact that a defendant has an antisocial personality dis- order or a low IQ may cause jurors to think that that the defendant is dangerous, so jurors may be more likely to impose the death sentence. Specific symp- toms that may influence jurors are the defendant’s inability to control violent impulses or to learn from mistakes. Not enough research currently exists to clar- ify when these disorders will be treated as aggravating and when they will be treated as mitigating. Drug or alcohol addiction and intoxication are forms of mental disorder because drug use impairs the decision-making capacity of the defendant and can induce other disorders. In many states, voluntary intoxication cannot be used as a legal defense to a crime but can still be a mitigating factor. Two studies have shown that intoxication at the time of the crime can reduce the likelihood of the death penalty. Having been abused as a child or having had a dif- ficult childhood and background is also commonly presented as a mitigating factor, but again, this factor could produce mixed reactions in jurors. Very severe physical and verbal abuse reduces the likelihood of a death sentence, but less severe abuse or a troubled childhood may not affect verdicts. Some courts, legal scholars, and social scientists assert that a troubled childhood could also be seen as an aggravating factor if the defendant’s background includes violent acts or previous arrests. This again suggests that jurors are more concerned about a defendant’s dangerousness than about a defendant’s mitigating evidence. 10 ———Aggravating and Mitigating Circumstances in Capital Trials, Effects on Jurors A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 10 Because jurors are concerned about the defendant’s dangerousness and likelihood to be violent, evidence that the defendant has been or will be a well-behaved and model prisoner can also reduce the likelihood of the death verdict. Only one (as yet unpublished) study has found this result, but this could be a very impor- tant mitigating factor. Likewise, the lack of a prior criminal record reduces jurors’ perceptions of danger- ousness and, therefore, also decreases jurors’ likeli- hood of sentencing the defendant to death. Interviews with jurors who have given a verdict of death penalty show that jurors will give the death penalty less often if the defendant expresses remorse for his or her crime. However, no experimental study has found an effect of remorse in death penalty trials. A defendant’s silence, or even a statement that he or she is not remorse- ful, could have an aggravating effect, producing more death penalty verdicts. A defendant’s remorse is often presented along with a religious plea, or testimony that the defendant has become more religious while in prison and is asking for forgiveness. At least one study suggests that a defendant’s conversion to religion can affect jurors and sensitize them to other mitigating factors as well. Little research has addressed the effect of a defen- dant’s “good character,” such as serving the community, going to church, or previous good acts. Jurors may have difficulty considering this evidence if there are serious aggravating factors. Research shows that, during their deliberations, jurors focus much more on the crime than on the defendant’s character. Jurors also tend to focus on the circumstances that formed a defendant’s character rather than examples of previous good acts. In the case of Roper v. Simmons in 2005, the Supreme Court banned the execution of defendants who committed their crime before the age of 18. Research conducted before that decision found that jurors did give the death penalty less often to juvenile offenders. Research also suggests that an 18- or 19-year-old defen- dant will be sentenced to death less often, but the miti- gating effect of being a youthful defendant declines quickly beyond the age of 20. Interviews with death penalty jurors have also found that jurors give the death penalty less often if there is any lingering or residual doubt about the defendant’s guilt, though in most cases, there is no such doubt. This type of evidence can be restricted in death penalty sentencing hearings, but jurors may carry over such doubt from the guilt phase of the trial. Kevin M. O’Neil See also Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases; Death Penalty; Juries and Judges’ Instructions; Jury Understanding
