November 26, 2013

Greetings from Bismarck, North Dakota

Here on the northern edge of the Great Plains, the local folk, of hardy Norwegian and Swedish stock, are strolling around as if it's a balmy day. Not me. Breathing steam into the 14-degree (-10 Celsius) air, I’m bundled up in a parka, ear muffs and gloves and still feel like an iceberg!

I’m up here at the behest of the state Supreme Court, giving a training to the judges on psychiatric diagnosis in court.

North Dakota is a sparsely populated state with the lowest crime rate in the nation, and the judicial community is tight-knit. Ninety percent of the state’s judges – from trial judges to Supreme Court justices – were crowded into the hotel ballroom.

It was hard to distill a day-long training into just two hours, but fortunately the well-informed and inquisitive judges brought up some of the omitted topics in the question-and-answer period. They seemed especially intrigued to learn of the reliability issues plaguing DSM-5 diagnoses, and the research on adversarial allegiance and psychopathy by Murrie and Boccaccini’s crew down in Texas and Virginia.

In 1997, North Dakota’s legislature jumped on the bandwagon and enacted a sexually violent predator law (here called a Sexually Dangerous Individual, or SDI, law), ushering in the circus of experts battling over diagnoses and risk assessment techniques that we see in the other 40 percent of U.S. states with such laws. So, naturally, someone asked about hebephilia, which testifying experts had falsely assured them would be in the DSM-5.

That reminds me: I just testified as a pure expert in a Frye evidentiary hearing in Washington on whether hebephilia was a generally accepted construct in the relevant scientific community. The judge ruled against hebephilia, but allowed an even-more-suspect "Paraphilia Not Otherwise Specified" diagnosis that the evaluator candidly admitted he had made up for that specific case.

North Dakota, by the way, holds the distinction of being the only U.S. state that has not adopted either the Daubert or Frye standard for evidence admissibility. It has its own unique rule that is very liberal. Still, as anywhere, judges bear the burden of being the evidentiary gatekeepers.

Talking with the judges after my session gave me a greater appreciation for the difficulties they face. Politicians pass laws, many ill-conceived, and then judges get stuck having to figure out how to enforce them, as best they can.

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