9th circuit upholds expert witness exclusion

Proposed testimony on murder victim's suicide risk

Jeffrey Moses' defense against the accusation that he murdered his wife Jennifer was that she shot herself to death. As evidence, he wanted to call Dr. Lawrence Wilson, a forensic psychiatrist and expert on suicide.

At a pretrial evidentiary hearing, Dr. Wilson said he would testify about Jennifer's depression and substance abuse. To counter the testimony of government witnesses who said she did not appear visibly depressed, he was prepared to opine that someone who is severely depressed can mask such feelings from friends and co-workers.

As law professor Colin Marshall summarized it over at the EvidenceProf Blog:

Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death."

The trial court excluded Dr. Wilson's testimony on the grounds that much of it was within the common knowledge of potential jurors, and was cumulative in light of other evidence that Jennifer did indeed suffer from depression. Also, Dr. Wilson's testimony that 15 percent of people with depression ultimately kill themselves was too prejudicial and potentially confusing to a jury, the trial court ruled.

The Washington state case is Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), available online here. The analysis by Professor Colin Miller from the John Marshall School of Law is here.

Odd twist in latest DNA exoneration

Speaking of movies -- here's a yarn that would make a good film plot:

A man named Clay Chabot is suspected of raping and killing a woman named Galua Crosby. He goes to trial. A key piece of evidence is the testimony of his brother-in-law. The brother-in-law, Gerald Pabst, testifies that Chabot forced him to tie up Mrs. Crosby and then ordered him out of the room; he could hear Ms. Crosby saying "no" before she was shot. With this kind of evidence, it is no surprise that Chabot is convicted. He gets life.

For the next two decades, Chabot insists he is innocent. He requests DNA testing to prove it. Finally, he gets his wish and - guess what - the incriminating DNA belongs to his good samaritan brother-in-law.

What makes the case all the more interesting is that the prosecutor, Janice Warder, had cut a secret deal with Pabst, promising him immunity from prosecution in exchange for his testimony. Considering his guilt, it was too good a deal to pass up.

And, since no bad deed goes unrewarded, the prosecutor went on to become a judge in Dallas County, Texas; she is now up for uncontested reelection as the District Attorney of Cooke County, Oklahoma.

For Dallas Morning News coverage on this case, see:

Former Dallas County prosecutor who withheld evidence will be Cooke County's District Attorney

Judge calls for retrial in 1986 slaying because of ex-prosecutor's misconduct

Jury convicts man of murder in 1986 Garland slaying

On an unrelated note, the Dallas Morning News also has a cool web page devoted to the Dallas Police Department's cold-case squad and some of its more interesting unsolved cases. Check it out; it's better than the TV series by the same name.

Hat tip: Grits for Breakfast

Engaging new techno-political thriller

Eagle Eye

I don't know about you, but on those rare occasions when I have time to go see a movie, I am having trouble finding any worth seeing. With that in mind, I thought I would pass along a recommendation for Eagle Eye. It's an action thriller with a timely and relevant message. If you liked Gattaca (1997), you'll enjoy this one. I won't say more on this blog, but my Amazon review is online here.

New manual for SVP evaluators

I just finished reading the brand-new manual, Evaluation of Sexually Violent Predators by Philip H. Witt and Mary Alice Conroy, and I regret to say that I was disappointed. Perhaps the title should have been a clue: We are supposed to be evaluating convicted sex offenders to see whether they meet the legal criteria of being "Sexually Violent Predators," not making an a priori assumption that they do. At any rate, I found the book superficial and one-sided.

For more specifics, see my Amazon review - online here. (If you like the review, please click on the little "Yes" button where it says "Was this review helpful to you?" That helps to boost my Amazon ratings, which improve the placement of my reviews.)

The manual is one in a new "Best Practices in Forensic Mental Health Assessment" series from Oxford University Press. The series editors include such luminaries in forensic psychology as Thomas Grisso and Kirk Heilbrun.

The title in the Oxford series that I'm really looking forward to is The Evaluation of Juveniles' Competence to Stand Trial by Thomas Grisso and my old colleague from Washington, Ivan Kruh, both of whom really know their stuff on this topic. It's due out in November; you can pre-order it here for just $35.

Jam-packed new issue of psychiatry-law journal

The latest issue of the Journal of the American Academy of Psychiatry and the Law is now available online, with interesting articles on competency, insanity, dangerousness, practice guidelines, diagnosis in SVP proceedings (a topic I am addressing in an upcoming training and an article in press), and much more:

• Revisiting the Politics of Dangerousness by Gregory B. Leong

• Mandated Community Treatment: Applying Leverage to Achieve Adherence by the illustrious John Monahan

• Clinical Practice Guidelines as Learned Treatises: Understanding Their Use as Evidence in the Courtroom by Patricia R. Recupero

• Commentary: When Is a Practice Guideline Only a Guideline? by Howard Zonana

• Forensic Applications of Cerebral Single Photon Emission Computed Tomography in Mild Traumatic Brain Injury by Hal S. Wortzel, Christopher M. Filley, C. Alan Anderson, Timothy Oster, and David B. Arciniegas

• Applications of Functional Neuroimaging to Civil Litigation of Mild Traumatic Brain Injury by Robert P. Granacher, Jr

• The Conditional Release of Insanity Acquittees: Three Decades of Decision-Making by Barbara E. McDermott, Charles L. Scott, David Busse, Felecia Andrade, Michelle Zozaya, and Cameron D. Quanbeck

• Biases That Affect the Decision to Conditionally Release an Insanity Acquittee by Patrick K. Fox

• Conceptualizing and Characterizing Accuracy in Assessments of Competence to Stand Trial by Douglas Mossman

• Facts and Values in Competency Assessment by Alec Buchanan

• Making Consent More Informed: Preliminary Results From a Multiple-Choice Test Among Probation-Referred Marijuana Users Entering a Randomized Clinical Trial by Daniel B. Rounsaville, Karen Hunkele, Caroline J. Easton, Charla Nich, and Kathleen M. Carroll

• Defining Mental Disorder When It Really Counts: DSM-IV-TR and SVP/SDP Statutes by Allen Frances, Shoba Sreenivasan, and Linda E. Weinberger

• Testimony by Mentally Ill Individuals by Yuval Melamed

The LEGAL DIGEST section includes the following summaries and analyses:

• Competence to Waive Miranda Rights by Aimee Kaempf and Debra A. Pinals

• Waiver of Postconviction Relief (PCR) and PCR Counsel by Kimberly A. Larson and Albert J. Gruzdinskas

• Videotaped Confessions and Miranda Rights by Paul Noroian

• Guardianship and Autonomy in Decision-Making by Deepak Dev and Debra A. Pinals

• Competence to Plead Guilty and Seek the Death Penalty by Casey Helmkamp, Hal S. Wortzel, and Richard Martinez

• Mitigating Evidence in a Death Penalty Case by Gregory Kellermeyer, Hal S. Wortzel, and Richard Martinez

• Mental Retardation and the Death Penalty: Addressing Various Questions Regarding an Atkins Claim by Jacob Widroff and Clarence Watson

• Sum of Errors and Due Process Owed to Mentally III Defendant by Elena del Busto and Clarence Watson

• Termination of Parental Rights by Sarah Rasco and Heidi Vermette

And there's even more, believe it or not – check out the full table of contents here.

Memory: The sharper, the falser

One of the most surprising things about memory is that contrary to popular belief, the more specific the detail, the less likely the memory is to be accurate. And while gaps in a memory are generally believed to indicate an unreliable memory, the reality is that gaps are virtually a hallmark of the remembering process.

"People still have this intuitive belief that if someone recounts a memory, it must be true if they display strong emotions," says Cara Laney, lecturer in forensic psychology at the University of Leicester. "But I've been studying memory so long that I don't trust very many of my childhood memories at all."

From rose-tinted views of childhood to clear recollections of events that never happened, research shows that memories are both suggestible and inherently idealised.

The rest of UK Guardian reporter Kate Hilpern's fascinating summary of memory research, "Is your mind playing tricks on you?"” in online here. The accuracy of memories is of central import in the field of forensic psychology, as well as related fields such as criminal investigation. So, if Hilpern's brief summary whets your appetite for more, I highly recommend scholar Daniel Schacter’s The Seven Sins of Memory: How the Mind Forgets and Remembers (my Amazon review is here). After reading about the seven sins, you’ll never think the same about your own memory, or anyone else's.