As public defenders, we struggle with challenging clients: clients who don’t trust us, clients who refuse to hear our best advice, and clients who sometimes lash out at us in ways that are difficult to absorb, let alone understand. Most of our challenging clients are mentally ill and a significant percentage of those have poorly documented or nonexistent psychiatric treatment histories which further complicates our task of illustrating the nature and impact of their mental illness for the district attorney, judge, or jury.
Luckily, we can obtain the assistance of a mental health expert but our experts need our help as well. They need a clear referral question (click here for some sample referral questions) and to know as much as possible about our clients’ symptoms. Because our clients are poor and don’t make bond, we often have the unique opportunity to observe them over time during regular jail visits. In addition, we generally have sufficient time to collect a variety of records that can provide evidence of pre-existing mental illness even when the mental illness has been untreated. When we can provide our mental health expert with a clear referral question, in combination with our client’s records and our observations of their mental health symptoms, our expert is far better equipped to assist us.
Most of us know where to look for records (the school system, DSS, etc.), but fewer of us know what to look for when developing an observational record of an individual’s mental illness. An excellent resource to assist in this process is a list of noteworthy behaviors developed by psychologist and mitigation expert, Deana Logan. She suggests that attorneys make note of the following:
- Reality confusion (hallucinations: hearing voices, “seeing things,” olfactory, tactile, and gustatory false sensations; illusions: such as misperception of harmless image as threatening; phobias: irrational fears, such as fear of leaving one’s cell; disorientation: seeming confused about people and surroundings; delusions: consistent false beliefs, such as lawyers out to get him, guard in love with him, food being poisoned);
- Speech and language problems (incoherence, neologisms, and illogicality: nonsensical speech, including new word formations and non sequiturs; poverty of speech and thought: half answers, whether monosyllabic or lengthy but empty; distractibility: changing subjects midsentence; tangentiality: irrelevant answers; derailment: slipping off track from one oblique thought to another; circumstantiality: longwinded and tedious; loss of goal; perseveration: persistent, inappropriate repetition; pressured speech: rapid, racing speech; blocking: mind goes blank mid-thought; paraphasia: substitution of inappropriate words; slurring; monotone; stilted speech; micrographia; hypergraphia; dyslexia);
- Memory and attention issues (amnesia; confabulation: filling in details of faulty memory; hypermnesia: extraordinary ability to recall; limited attention span; selective inattention on emotionally charged issues);
- Medical complaints (hypochondria; self-mutilation; accidentproneness; insomnia; hypersomnia; anorexia and changes in eating habits; blurred vision; hearing problems; ringing in ears; headaches; dizziness; nausea; fatigue; loss of control of bodily functions);
- Inappropriate emotional tone (anxiety; suspicion; depression; hostility; irritability; excitement; flat affect; emotional lability; inappropriate laughter);
- Personal insight and problem solving difficulties (self-esteem too high or too low; frustration; denial of mental problems; difficulty planning; difficulty changing plans when necessary; impaired ability to learn from mistakes);
- Problems related to physical ability (agitation; hypervigilance; psychomotor retardation; slow reactions in movements or while answering questions; clumsiness; tension); and
- Unusual social interactions (isolation/estrangement; difficulty perceiving social cues; suggestibility; emotional withdrawal; disinhibition).
While this list is not exhaustive, it is a helpful starting point when considering what behaviors to record when documenting a client’s mental illness. After careful observation of your client and careful review of all records you can locate, psychiatric or otherwise, you will have a clearer idea of how to maximize the assistance of a mental health expert. Simultaneously, you will have made yourself into a resource for your expert, so that they two of you can work together deciding how best to explain the nature and impact of your client’s mental illness.
 Logan, D.D., Learning to Observe Signs of Mental Impairment, 19:5-6 CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, FORUM 40 (1992), cited in A Practitioner’s Guide to Defending Capital Clients with Mental Disorders and Impairments (compiled by The International Justice Project and downloadable at http://azcapitalproject.org/wordpress/wp-content/uploads/2011/08/MI-Guide.pdf.
Attorneys may need the services of a psychologist to evaluate whether a client is competent to stand trial, to present evidence regarding a mental health defense or mitigation, or to perform other psychological testing of a client. Attorneys have asked me whether a psychologist needs to be licensed in NC to perform these services. I’ll attempt to answer below.
In a capital case, if the defense seeks to establish that the defendant is mentally retarded, NC General Statutes require that the IQ test be administered by a licensed psychiatrist or psychologist. N.C. Gen. Stat. § 15A-2005 (2014).
For other types of psychological services, the N.C. Psychology Practice Act sets standards for practicing psychology in North Carolina, and includes requirements for education, examination, supervision, and licensing. N.C. Gen. Stat. § 90-270 (2013). The Act allows certain types of consultation and testimony to be provided by a non-licensed psychologist. For example, if testimony is needed regarding the characteristics of a particular mental health disorder, this type of general information could be provided by a non-licensed psychologist. N.C. Gen. Stat. § 90-270.4(a). However, if the case requires that the expert conduct any testing or evaluation of the defendant, the expert would need to be a licensed psychologist because this work would involve the provision of psychological services to an individual.
The Act includes an exemption that allows for psychologists licensed outside of North Carolina to practice within the state. Psychologists licensed in other states can apply for an exemption to practice psychology, including the provision of health services, in North Carolina for either five or 30 days in any calendar year. N.C. Gen. Stat. § 90-270.4(f). The psychologist should contact the North Carolina Psychology Board to apply for this limited right to practice in North Carolina.
Though there may be limited circumstances in which a psychologist who does not have a license may provide expert services in North Carolina, it is advisable for attorneys to use a licensed psychologist or to consult with the NC Psychology Board to determine whether the use of a non-licensed psychologist is permissible. Attorneys can visit the NC Psychology Board’s website to verify whether a psychologist has an active license in North Carolina and whether there are any disciplinary issues currently or recently impacting their licensure.
On September 11 and 18, PBS will air a two-part series which looks at the role neuroscience evidence may play in criminal trials. A trailer of the program is available here. The program will air from 10-11 pm on UNC-TV. The series uses a mock trial scenario in which a teenager is facing murder charges for a robbery gone bad. The first episode looks at the guilt phase of the trial and the second episode looks at the sentencing phase. The role of neuroscience in these two phases of trial is examined.
The program will look at topics including: the juvenile brain, how memories are formed, whether a brain scan can reveal guilty knowledge, what neuroscience can say about juror bias and decision-making, how judges use their brains, and what neuroscience can reveal about psychopathy, remorse, and recidivism.
The series consulted with leading neuroscientists, psychologists, and legal scholars, including several Duke professors. A viewing of the program will be held at the Nasher Museum Auditorium on September 11, 2013 from 4-5:30 pm. Program host Alan Alda will lead a panel discussion with Duke professors Nita Farahany, Scott Huettel, Walter Sinnott-Armstrong and Ahmad Hariri. More information about this event is available here.
Tune in to this program to explore role neuroscience may play in the courtroom in the near future and take a look at the website for videos of the interviews and additional resources.
Both The New York Times and National Public Radio (NPR) report that a recent study suggests judges may impose lighter sentences in cases where a defendant, diagnosed as psychopathic, is genetically predisposed to violent behavior.
The study, carried about by researchers at the University of Utah and published in the journal Science, tasked 181 judges from 19 states with reading a fictional case file and sentencing the defendant. The fictional defendant, accused of beating a restaurant manager senseless with the butt of a gun, was identified in the case file as being diagnosed as a psychopath. All of the case files distributed were identical except that half of the files included expert testimony from a neurobiologist that the defendant had inherited a gene linked to violent behavior. In those files which included the neurobiologist’s testimony, judges, on average, imposed a sentence seven percent lighter than that imposed on the defendant in the file without the expert testimony.
However, experts, such as law and biological sciences professor Owen D. Jones of Vanderbilt, caution that results could differ in front of juries. Further, evidence of a biological link to violence may be used by the prosecution to argue for harsher penalties because there is nothing to stop a defendant from being violent in the future.
But, as NPR reports, introduction of a biological basis can mean life or death for a client in a capital case because it may lessen culpability. Research by geneticist Han Brunner uncovered a link between a defect found in a gene known as MAOA (monoamine oxidase A) and the violent behavior of a number of men in a Dutch family who engaged in extremely violent behavior. Stephen Mobley, who was sentenced to death for robbing and shooting a restaurant manager later appealed his sentence on the grounds that his counsel was ineffective for failing to introduce evidence that he possessed the defective MAOA gene uncovered by Brunner and believed to be responsible for violent behavior. His death sentence was reduced to life. However, a later court overturned the ruling, finding that the brain evidence should not have been allowed.
While brain scans and other neurological evidence already is used in some cases, these studies highlight the potential for use of genetic evidence in mitigation, particularly salient in capital cases. Vanderbilt University Pathology Laboratory Services in Tennessee performs this testing which requires only a client’s blood sample. More information can be found here, or contact Sarah Rackley to discuss this testing.
You can find the New York Times article here and the NPR article here.
The MacArthur Foundation Research Network on Law and Neuroscience is a centralized location where you can find publications, cases, news articles, training information and other resources on the intersection of law and neuroscience. The Network has a listserve that you can sign up for here. There is also a Law and Neuroscience Blog which provides an online forum for discussion of current research and court cases by members of the Research Network, other researchers and the public.
The Network maintains a searchable law and neuroscience bibliography, which now includes over 700 items.
According to a press release, research conducted by the program will include brain imaging and other studies to examine detecting deception, detecting recognition, cognitive and brain development in adolescents, and when neuroscience evidence (such as fMRI brain scans) should and should not be admissible in court.