ABA Journal Blawg 100!
We Participate In:
Can you trust the results of forensic evaluations on legal sanity?
You can trust the results only 55.1% of the time (at least if you are in Hawaii) based on new research examining agreement among forensic evaluators. Hawaii requires multiple and independent evaluations of sanity or insanity in NGRI cases. Agreement is found in a scant majority of cases, and that’s pretty disturbing.
The authors reviewed 483 different evaluation reports which addressed 165 criminal defendants–this represents up to three different forensic psychologists offering independent opinions on a defendant’s legal sanity. There was unanimous agreement (all evaluators concurring on sanity/insanity) only 55.1% of the time. Overall, evaluators recommended sanity in 58.6% of the reports, insanity in 35.4%, and did not offer an opinion in 6% of the cases.
When drugs were involved at the time of the offense, evaluators showed the highest level of disagreement.
When there was a psychotic disorder or when the defendant had been psychiatrically hospitalized shortly prior to the offense, the evaluators agreed more often.
When the cases went to court, the judge sided with the majority opinion among the evaluators 91% of the time. However, when judges disagreed with the majority opinion–they did so to rule the defendant was sane rather than insane.
The researchers in this case recommend additional training. The good news is there was higher agreement when it came to questions of competency to stand trial and evaluations of future dangerousness. Both of those questions as reasons for the evaluations achieved a 68% agreement among the independent forensic evaluators.
In a previous lifetime, I worked in Forensic Rehabilitation with men adjudicated not guilty by reason of insanity (NGRI). I worked in the “Axis I” unit with men who had primarily mood and psychotic disorders. Their stories were very sad and often they had killed loved ones while psychotic. With appropriate medication, many of them were able to return to the community. They were the sad guys.
The “Axis II” unit housed men with primarily character disorders who had received an NGRI decree but whose behavior was determined to be driven by sociopathy, narcissism and psychopathy. They were the bad guys. While some were certainly also experiencing Axis I disorders–a number of them were not (and also not on any medications). Needless to say, there was much more suspicion on the part of rehabilitation staff directed toward the bad guys and more empathy directed at the sad guys.
It’s a real dilemma for the forensic evaluator. If you are not in a combined unit as we were–where those referred for evaluation are observed 24/7 in-house in a residential unit prior to going to trial–you are at the mercy of the documents you have, self-reports and any pre-existing records of behavior. Over time, we tended to believe we knew when mistakes had been made in the evaluation process but many (if not most) evaluators do not have the luxury of long observations of those referred.
As a psychologist, I was asked to testify in court as a treating expert on whether a resident was safe to return to the community. I remember one instance where the prisoner/resident [we'll call him Ted] carried both a psychotic (Axis 1) and a personality disorder (Axis 2) and was heavily medicated. Despite his medications, he continued to hear voices (which were often quite amusing to him). He looked kind of scary–a large, heavily muscled and bald man with tattoos who was also slightly cross-eyed and giggled to himself too much of the time. Not Mr. Rogers.
I knew, after several years of observation and treatment, that he understood his symptoms and that he wouldn’t leave the grounds if he was having what he called “a bad day”. The hearing was just for day passes–which he would use to go to a day treatment program, smoke cigarettes and be off grounds from the facility where he had been under lockdown for a number of years for assault while psychotic.
The prosecutor from the county in which Ted had been tried stood up and said,
“Dr. Handrich–He is obviously still symptomatic and is unable to keep himself from giggling here in the courtroom. How can you say he is not a danger to the community?”
I looked at the prosecutor and then at the judge and grinned. “Well,” I said. “The fact is that we have lots of people in our facility who giggle like that. It isn’t really something we use to assess dangerousness. It’s sort of weird and disconcerting. But it isn’t an indicator of dangerousness.”
That was too much for Ted who bellowed with laughter. The judge coughed and looked away and then agreed. And Ted was fine. If you saw him out there you would probably have a little anxiety based on his intimidating appearance, but Ted didn’t hurt anyone during that trial period and intermittently chose not to leave for the day due to symptom exacerbation.
We had an advantage over the forensic evaluator. We had time. So know that just because an evaluation says someone is legally insane doesn’t mean they really are. And it doesn’t mean they really are not. It’s often a data point in time with little to corroborate or invalidate. It’s the best guess of a professional who has little desire to make a mistake and can only rely on their instruments and experience.
Gowensmith WN, Murrie DC, & Boccaccini MT (2012). How Reliable Are Forensic Evaluations of Legal Sanity? Law and Human Behavior PMID: 22775304
RT @KeeneTrial Can you trust the results of forensic evaluations on legal sanity? http://t.co/YlYjGADI
Crazy… (pun intended) “Can you trust the results of forensic evaluations on legal sanity?” http://t.co/riSaj7Hm [via @keenetrial] #law