"Narcoanalytics" order in Aurora massacre case unprecedented

News flash: There is no such thing as 'truth serum'

The next time the court appoints you to conduct a sanity evaluation, don't forget to order up a vial of truth serum.

In a court order that breaks new legal ground, the judge presiding over the trial of James Holmes ordered the Aurora Colorado massacre suspect to submit to polygraph testing and a "narcoanalytic interview" if he decides to put his mental state at issue.

Chief District Judge William Sylvester ruled that if Holmes elects to pursue an insanity defense, "medically appropriate" drugs can be administered during a forensic examination at the state hospital, presumably to determine whether the mass murder suspect is feigning insanity.

This may be the first time that a court has mandated use of so-called "truth serum" in a sanity evaluation. Indeed, courts have generally taken the opposite stance, of being gatekeepers who exclude the results of both sodium amytal and polygraph examinations from court due to their lack of reliability.

"Mythical aura of infallibility"

In a seminal case, Harper v. State (1982), the George Supreme Court ruled that the use of "truth serum" (sodium amytal) was inadmissible to establish that a murder defendant was being truthful in proclaiming his innocence. "We agree with the trial court that, until it is proven with verifiable certainty that truth serum compels a person to tell the truth, neither the results of truth-serum tests nor the opinions of experts based on the results of these tests shall be admissible in evidence," ruled the court.

Similarly, a defense-retained psychologist published an account of another case from the 1980s in which an appellate court upheld exclusion of "a sodium amytal test" to bolster an insanity defense. The defendant had walked into a nightclub and shot to death a dancer who had jilted him. Under the influence of the barbiturate, the man claimed he thought he was shooting Satan, because the victim had appeared to morph into the devil, "with pitchforks … and fire and everything." In excluding mention of the test, the trial judge expressed worry that a jury "might be overwhelmed by the use of the term 'sodium amytal' and/or 'truth serum' and attribute to it a mythical aura of infallibility."

Back in the 1930s and 1940s, when sodium amytal was all the rage, laypersons and professionals alike believed that people could not lie when under the drug's influence. It turns out that this faith was misguided. Empirical testing showed that although sodium amytal and related drugs lower inhibitions, people remain perfectly capable of lying, withholding information, and exaggerating psychiatric symptoms.

"While it is clear that these substances lower inhibitions and increase loquacity, they provide no assurance as to the truthfulness of the information obtained,” noted attorney Jason Odershoo in a Stanford Law Review analysis focusing on whether such chemicals may legally be deployed against terrorism suspects in the post-9/11 world.

Sodium amytal, or amobarbital, belongs to the same class of barbiturates as Nembutal, Seconal, and Pentothal. As psychiatrist August Piper Jr. describes the procedure, a physician intravenously administers small amounts of the drug (sometimes in tandem with other intravenous drugs like Valium or Ativan) until the subject enters a "twilight state" in which he is relaxed and drowsy but still awake. The drug causes a feeling of warmth and "closeness to the interviewer" that breaks down inhibitions, similar to the effects of acute alcohol intoxication.

However, while sodium amytal makes people more loquacious, it also disrupts memory and increases suggestibility, according to the research summarized by Piper. Reality and fantasy may become hopelessly tangled, such that people cannot distinguish between the two.

Cultural fascination with truth serum in the mid-20th century completely ignored this flawed reality. Rather, the mythology helped to shape the public's understanding of memories as robust and accurate, stored verbatim in the mind just awaiting proper retrieval and extraction. As Alison Winter writes in a 2005 essay on the cultural history of truth serum:

"This view contributed to the production of a public understanding of memory that both diverged from previous claims about memory and recall, and ran counter to the direction of current psychological research. It thus helped lay the groundwork for claims about memory permanence and scientific recall techniques later in the twentieth century."

Perils in Holmes's case

James Holmes's new look

The empirical research suggests not only that Holmes could lie while under the influence of the drugs, but also that subjecting him to a "narcoanalytic interview" could introduce false memories and render his subsequent recall of information potentially even less reliable. As with post-hypnosis statements, this could be a big problem if Holmes decides to testify on his own behalf, either at a trial or a sentencing hearing. Similarly, unreliable information recounted to evaluators during a "narcoanalytic interview" could be given too much credence, thereby jeopardizing the validity of forensic opinions in the case.

But maybe such contamination is the point, writes a commentator at the American Everyman blog. Under the alarmist headline, "Holmes to be Drugged Into Confession -- Apparently Waterboarding is Off the Table," Scott Creighton theorizes: "This 'truth serum' CIA trick will be used to convict Holmes in the court of public opinion before his Vichy lawyers plead him out to life in prison rather than taking it to trial to evaluate the evidence against him." 

Given the recent dispositions of other similar cases such as that of Arizona mass shooter Jared Loughner, maybe the conspiratorially minded blogger is not so far off the mark.

The CIA and a zombie idea

The notion of a magical drug that can ferret out malingering represents a "zombie idea," to borrow a phrase from New York Times essayist Paul Krugman. That is, it is a proposition that has been thoroughly refuted by analysis and evidence, and should be dead -- but stubbornly refuses to stay dead because it serves a political purpose or appeals to public prejudices.

Indeed, Judge Sylvester's court order harkens back to the early to mid-20th century, a time when -- as legal analyst Odershoo recounts -- "the idea of such a magical substance seemed a very real possibility, one holding profound significance for criminal investigation, foreign intelligence, and national security."

The term "truth serum" was coined in the early 1920s by an obstetrician named Robert House, who advocated the use of the barbiturate Scopolamine -- now known as a date-rape drug because of its amnestic properties but at the time administered to women during childbirth to induce a 'twilight sleep' -- in criminal interrogations. Time magazine's 1923 piece, "Medicine: The Truth-Compeller," helped popularize the idea and turned House into a one-hit wonder. In the 1930s, police use of barbiturates on witnesses and criminal suspects became more widespread. During World War II sodium pentothal was used both to treat soldiers suffering from "shell shock" and to detect malingerers trying to duck the military draft.

Then, during the Cold War, the CIA launched a feverish quest for the ultimate "truth drug." Clandestine campaigns with code names such as Projects Chatter, Third Chance, Derby Hat and Bluebird culminated in the ill-fated MK-ULTRA, in which a doctor who was administered LSD leapt to his death from a hotel room window. Revelations of this secret experimentation led to public antipathy towards the spy agency, and a demise in the use of sodium amytal and sodium pentothal as truth serums.

The drugs remain in use as anesthetics, and have also been used by psychotherapists seeking to recover repressed memories. This use has its own sordid history. In 1992, a former patient of eminent Chicago psychiatrist Jules Masserman published an account claiming that the good doctor had repeatedly raped her after administering sodium amytal, purportedly to retrieve her repressed memories of incest. The patient, Barbara Noel, was not the only woman to win a lawsuit over such nefarious abuse.

Legal use officially repudiated 

Use in law enforcement fell rapidly in the wake of a 1963 U.S. Supreme Court ruling that a confession produced under the influence of truth serum was unconstitutionally coerced, and therefore inadmissible. The case of Townsend v. Sain involved a heroin addict who was interrogated after being administered phenobarbital and hyoscine (Scopolamine) to alleviate his withdrawal symptoms. Although India and some other countries still use these drugs in criminal investigations, in the United States their use for that purpose has been "officially repudiated," according to Odershoo.

A scan of the case law suggests that this is by far the most serious case in which narcoanalysis has ever been proposed. Holmes is awaiting trial on 166 felony charges for an attack on Batman moviegoers last July that killed 12 people and wounded 58. His attorneys have mounted a heretofore unsuccessful challenge to Colorado's insanity statute and the judge's interpretation of it. Under Colorado law, the test for insanity is whether the person "who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act." Judge Sylvester has ordered that, if Holmes pleads insanity, he must divulge all information from past mental health treatment. Holmes was seen by a psychiatrist and at least two other mental health professionals at the counseling center of the University of Colorado, where he was a PhD student in neuroscience before withdrawing from school, and his treatment records may contain potentially incriminating information. Such forfeiture of doctor-patient privilege is standard in criminal law when a defendant puts his mental state at issue.

Malingering detection

Holmes's elaborate degree of planning for his attack over at least a four-month period certainly raises a distinct possibility that any claim of mental illness may be feigned. But while no method is foolproof, other techniques have a far better track record at sniffing out deception.

Judge William Sylvester

We have a constantly growing arsenal of formal tools for the assessment of various types of malingering. Especially in high-stakes cases such as this, formal tests are typically augmented by 24/7 observation in psychiatric facilities. It's pretty hard to consistently masquerade as insane when one is under around-the-clock observation by everyone from the doctors and nurses to the janitors. Even one of the most slippery malingerers of insanity, a Mafia don named Vincent "The Chin" Gigante, eventually tripped up and got nailed. 

Judge Sylvester's order is so far removed from both contemporary scientific knowledge and normal legal procedure that it has left many observers scratching their heads. Where did the judge get the wacky idea that truth serum is the way to go? Did he cook it up himself, or was it fed to him by someone who had read a few too many "true crime" books or spy thrillers? Vaughan Bell over at Mind Hacks went so far as to wonder whether "the judge has been at the narcotics himself."

NOTE: An updated version of this essay appears at my Psychology Today blog. That essay explains where Judge Sylvester got this wacky idea, and also references the landmark case of Ramona v. Ramona, in which a father successfully sued his daughter's therapists for implanting false memories of child sexual abuse during a sodium amytal interview, as well as the role of sodium amytal in the Michael Jackson case.  Thanks to psychologist Evan Harrington of the Chicago School of Professional Psychology for alerting me to the Ramona opinion, which features an interesting discussion of relevant case law.

A full set of court documents in the Holmes case is located HERE.

Ayres case: Final act in long-running competency drama?

Notorious psychiatrist found fit for trial on molestation charges

The case has all of the elements of high drama: A once-respected child psychiatrist accused of molesting vulnerable boys sent to him by the courts. Allegations that prosecutors turned a blind eye. Pressure from victim’s rights lobbyists. And, of special interest to this blog’s readers, a bevy of mental health experts presenting contradictory evidence.

For forensic professionals, the case raises many questions that make it useful as a teaching tool:

• Is competency an all-or-none construct?
• Does symptom exaggeration equate to full-out malingering?
• How might dementia affect a defendant’s trial abilities?
• What weight should be given to the opinions of laypersons as opposed to trained psychologists and psychiatrists? 

William Ayres

The four-day competency hearing in San Mateo County, California (just south of San Francisco) was the latest in the long-running saga of William Ayres, one-time president of the American Academy of Child and Adolescent Psychiatry and host of a controversial 1960s public television sex education show for children, "Time of Your Life."

Ayres was arrested in 2007 on charges of molesting six boys, ages 9 to 13, between 1988 and 1996. He was suspected of molesting many more, but the statute of limitations barred prosecution. At his 2009 trial he claimed he was just conducting routine medical exams of his child patients. Although psychiatry focuses on the mind, he apparently felt the genital area was also necessary to probe. The jury deadlocked. After a subsequent jury trial on the issue of competency ended in another hung jury, the two sides stipulated that he was incompetent due to dementia. He spent about nine months at Napa State Hospital -- where defendants in Northern California are sent for competency restoration treatment -- before the hospital decided that he was faking dementia to avoid trial and sent him back.

The prosecution's star witness at the four-day hearing was a newly minted psychologist, licensed for less than one year, who bills himself as an expert on malingering. John McIlnay, who came to Napa after earning his PsyD degree in 2010 from the Christian evangelical school of Azusa Pacific, testified that the 80-year-old psychiatrist was cleverly malingering dementia in order to avoid retrial.

As an example, McIlnay recounted an episode in which Ayres talked with the head nurse about a perceived lack of safety on the unit. A day or so later, the nurse implemented some of his suggestions to address the problem. Ayres noticed, and sought her out to thank her. All of this indicated to McIlnay that Ayres could competently identify a problem, determine solutions, take effective steps to rectify the problem and, inconsistent with a dementia, track all of this in his memory.

Another example offered of spontaneous functioning inconsistent with dementia was his query of a nursing supervisor, when he returned to the hospital from a court hearing, as to whether he still had the same room; he reportedly walked straight to his old room without being directed.

Bolstering McIlnay’s testimony was that of a nurse on the intake unit who sounded the alarm that Ayres might be faking, in part because he was uncooperative with the treatment team. She testified that Ayres was able to correctly relate his medical history, supply the names of all of his medications, and even spell the word "Alzheimer’s" for her.

I didn't find that last example especially compelling. As I learned while doing a neuropsychology internship with the Alzheimer's Center of Northern California, overlearned information is often the last to go. A trained psychiatrist could easily retain the spelling of a word such as Alzheimer's even while suffering from that very condition himself.

Hospital staff divided

McIlnay's determination of malingering was countered by two members of Ayres's treatment team at the hospital, psychologist Thomas Knoblauch and psychiatrist Scott Sutherland. Additionally, Napa psychologist Erin Warnick, who conducted neuropsychological testing, testified that Ayres exaggerated his symptoms at times, but nonetheless had a dementing condition.

Warnick found a number of deficits that would interfere with Ayres's trial competency, including difficulty learning new information, inaccurate recall of some information, language deficits that interfered with retrieving and communicating relevant information in a coherent fashion, impairment in tracking thoughts and inhibiting irrelevant responses, mental perseveration, and emotional and cognitive disorganization when under stress, as might occur during a serious and extended trial.

In his brief decision finding Ayres competent to stand trial, Judge John Grandsaert discounted the testimony of all three clinicians as lacking objectivity.

The public split among hospital staff comes amid a new policy, intended to provide at least a veneer of greater objectivity, barring psychologists and psychiatrists on treatment units from writing forensic reports. While the judge faulted the treatment team as lacking objectivity, to my knowledge there was no discussion of potential bias among the staff members who labeled Ayres as malingering. In a peer-reviewed case study in the Journal of Forensic Psychology Practice, I wrote about my observation of a state hospital bias toward labeling criminal patients as malingerers. If nothing else, from a purely practical standpoint the diagnosis frees up scarce beds. In this case, hospital nurses and technicians might be biased against Ayres not just due to their institutional affiliation, but also because of the nature of the allegations.

The judge also discounted the opinion of UC San Francisco neuropsychologist Amanda Gregory, who testified for the defense, and that of Ayres's attorney, Jonathan McDougall, who in a relatively unusual move took to the witness stand to explain his client's difficulties in rationally assisting in his own defense.

In addition to McIlnay, the judge also afforded greater weight to two other experts called by the prosecution, both of whom opined that Ayres was competent. George Wilkinson, a forensic psychiatrist, concluded Ayres was malingering after the elderly colleague greeted him by name in their first meeting in more than a year. Wilkinson testified that Ayres did have a dementing condition, but was exaggerating his level of impairment. Similarly, forensic psychologist Paul Good -- who evaluated Ayres several times over a two-year period -- testified that Ayres had a dementia, but nonetheless was competent to stand trial "by the thinnest of margins."

Test data brushed aside

Complicating the clinical picture, Ayres passed several specialized tests for malingering administered by various professionals. These included tests of cognitive feigning (the Test of Memory Malingering and the Word Memory Test), tests of malingered incompetence, a test of malingered psychosis (the Miller Forensic Assessment of Symptoms Test), and measures of symptom distortion that were embedded in the longer neuropsychological test batteries.

The judge dismissed all of these data, concluding that Ayres's professional training and experience as a psychiatrist rendered him savvy enough to fake out the seasoned experts:

"The defendant's conduct and statements at Napa State Hospital viewed in the light of his extensive professional training and experience and his intellectual capabilities that were demonstrated from time to time in the evidence in this case showed the defendant to be competent and at the very least exaggerating his cognitive deficits." 

Obviously, a psychiatrist who understands the concept of malingering and knows about the existence of tests to detect it is better positioned to get away with faking than the average layperson. But we're talking about an elderly psychiatrist with no known training in the methodology of contemporary malingering tests. It might pose a challenge, for example, to differentiate neuropsychological tests that are measures of effort (which one would have to do well on to avoid being suspected of malingering) from those that measure cognitive decline (on which one would need to bomb in order to get a dementia diagnosis).

To be competent, the defendant must have a factual and rational understanding of his legal situation and have the rational capacity to assist in his defense. Here, the burden was on the defense to prove, by a preponderance of the evidence, that Ayres was not competent. Had he been found incompetent and permanently unrestorable to competency, he would have avoided trial, but might have faced a legal conservatorship.

The case has spawned its own victim advocacy website

The backdrop to all of the legal wrangling over malingering is a vocal victims' advocacy chorus chomping at the bit to see Ayres get justice. With the specter of Jerry Sandusky lurking in the background, the case has earned national publicity, and even has its own advocacy website: "William Ayres: Child Molester and Malingerer" featuring blow-by-blow coverage. Prosecutors initially dragged their feet on filing charges despite around three dozen alleged victims stepping forward; for a while the courts were still sending boys to Ayres even while he was under investigation. Now that they are on board, prosecutors are anxious to redeem themselves by moving forward against the increasingly feeble octogenarian before it is too late.

Malingering: All-or-nothing?

With such a confluence of interests embracing the image of Ayres as malingerer, any nuance is lost. Symptom exaggeration, so commonplace in our work, is equated as synonymous with all-out malingering, or the complete fabrication of a mental disorder for purposes of secondary gain. As I wrote about in my 2008 case study, individuals who are genuinely impaired may also exaggerate symptoms at times, for a variety of reasons, and it is sometimes quite difficult to disentangle the truth.

There is no doubt that a sly and intelligent defendant can fake out the experts. The best example I know of is that of Vincent "The Chin" Gigante, a Mafia don who feigned insanity for years. But outside of fiction and the movies, such sophisticated deception is rare.

Did it happen here? It's hard to know for sure. But one thing is certain: If Ayres truly does have a progressive dementia such as Alzheimer's, he will only get more impaired as the case drags on. So it would be premature to rule out the possibility of a renewed claim of incompetency as the March 11 trial date draws near.

Meanwhile, Ayres has been released on $900,000 bail, raising another issue that is ripe for reform. More than 70 percent of the 71,000 inmates in California's county jails are there because they are too poor to post bail. From the perspective of social justice, it seems odd for a man suspected of molesting dozens of boys to be walking the streets for year after year while petty miscreants lounge in jail awaiting trial on misdemeanor charges of vandalism or petty theft.

Further resources:

• A previous blog post, with links to my earlier blog posts on the case dating back to 2007, is HERE.
• A list of the witnesses who testified at the competency hearing is HERE.
• A timely analysis of California's bail system, “The Commercial Bail Industry: Profit or Public Safety?” by Amanda Gullings of the Center on Juvenile and Criminal Justice, is HERE.
• An informative Slate magazine article on the misdemeanor incarceration machine, "Why Misdemeanors Aren’t So Minor: Too often the criminal justice system is pronouncing people guilty without evidence, lawyers, or a chance to plead their case," by Alexandra Natapoff, is HERE.

Updates of leading malingering and Miranda rights tests

As we ring in the new year, here are a couple of updates on tests some of you may be using in your forensic practices.

Miranda instruments revised

When it comes to assessing whether a criminal defendant had the capacity to waive his or her Miranda rights prior to giving a statement to police, there is only one game in town -- the Instruments for Assessing Understanding and Appreciation of Miranda Rights by eminent forensic psychologist Tom Grisso and colleagues. Now, that set of tests has been completely revised and given a new name: the Miranda Rights Comprehension Instruments (MRCI). One of the main problems with the old instruments was that their language was more complex than the actual language used by many police warnings, reducing their real-world validity. That problem has been rectified through simpler language in the new edition. Also, the test developers promise better psychometric properties and updated normative data. But it's kind of a tricky situation, because we are being instructed to use the new instruments when assessing juveniles, but to stick with the old ones for assessing adults until new adult norms are published some time in 2013. More on the new instruments is HERE.

Facelift for gold-standard malingering test

In contrast to Miranda rights, there is no shortage of instruments for assessing malingering. But for assessing malingered psychosis, one instrument is widely recognized as the "gold standard." That test is Richard Rogers and colleagues’ Structured Interview of Reported Symptoms (SIRS). It too was recently revised. The revision was in part due to the discovery that the original SIRS failed to adequately distinguish between some people diagnosed with dissociative identity disorder and people who were instructed to deliberately exaggerate symptoms. But critical reception for the revised tool, the SIRS-2, has been less than stellar. Over at the Open Access Journal of Forensic Psychology, forensic psychologist Greg DeClue warns that the SIRS-2 may be vulnerable to admissibility challenges in court. That is due to the publishers' refusal to be transparent by letting independent professionals such as DeClue analyze their data. DeClue challenges the test's developers to submit a comprehensive description of the SIRS-2 validation study for peer-reviewed publication, and to let independent professionals analyze the data without impediment. His interesting critique is HERE.

Psychology rife with inaccurate research findings

The case of a Dutch psychologist who fabricated experiments out of whole cloth for at least a decade is shining a spotlight on systemic flaws in the reporting of psychological research.

Diederik Stapel, a well-known and widely published psychologist in the Netherlands, routinely falsified data and made up entire experiments, according to an investigative committee.

But according to Benedict Carey of the New York Times, the scandal is just one in a string of embarrassments in "a field that critics and statisticians say badly needs to overhaul how it treats research results":

In recent years, psychologists have reported a raft of findings on race biases, brain imaging and even extrasensory perception that have not stood up to scrutiny…. 

Dr. Stapel was able to operate for so long, the committee said, in large measure because he was “lord of the data,” the only person who saw the experimental evidence that had been gathered (or fabricated). This is a widespread problem in psychology, said Jelte M. Wicherts, a psychologist at the University of Amsterdam. In a recent survey, two-thirds of Dutch research psychologists said they did not make their raw data available for other researchers to see. "This is in violation of ethical rules established in the field," Dr. Wicherts said.

In a survey of more than 2,000 American psychologists scheduled to be published this year, Leslie John of Harvard Business School and two colleagues found that 70 percent had acknowledged, anonymously, to cutting some corners in reporting data. About a third said they had reported an unexpected finding as predicted from the start, and about 1 percent admitted to falsifying data.

Also common is a self-serving statistical sloppiness. In an analysis published this year, Dr. Wicherts and Marjan Bakker, also at the University of Amsterdam, searched a random sample of 281 psychology papers for statistical errors. They found that about half of the papers in high-end journals contained some statistical error, and that about 15 percent of all papers had at least one error that changed a reported finding -- almost always in opposition to the authors' hypothesis….

Forensic implications

While inaccurate and even fabricated findings make the field of psychology look silly, they take on potentially far more serious ramifications in forensic contexts, where the stakes can include six-figure payouts or extreme deprivations of liberty.

For example, claims based on fMRI brain-scan studies are increasingly being allowed into court in both criminal and civil contexts. Yet, a 2009 analysis found that about half of such studies published in prominent scientific journals were so "seriously defective" that they amounted to voodoo science that "should not be believed."

Similarly, researcher Jay Singh and colleagues have found that meta-analyses purporting to show the efficacy of instruments used to predict who will be violent in the future are plagued with problems, including failure to adequately describe study search procedures, failure to check for overlapping samples or publication bias, failure to investigate the confound of sample heterogeneity, and use of a problematic statistical technique, the Area Under the Curve (AUC), to measure predictive accuracy.

Particularly troubling to me is a brand-new study finding that researchers' willingness to share their data is directly correlated with the strength of the evidence and the quality of reporting of statistical results. (The analysis is available online from the journal PloS ONE.)

I have heard about several researchers in the field of sex offender risk assessment who stubbornly resist efforts by other researchers to obtain their data for reanalysis. As noted by Dr. Wicherts, the University of Amsterdam psychologist, this is a violation of ethics rules. Most importantly, it makes it impossible for us to be confident about the reliability and validity of these researchers' claims. Despite this, potentially unreliable instruments -- some of them not even published -- are routinely introduced in court to establish future dangerousness.

Critics say the widespread problems in the field argue strongly for mandatory reforms, including the establishment of policies requiring that researchers archive their data to make it available for inspection and analysis by others. This reform is important for the credibility of psychology in general, but absolutely essential in forensic psychology.

Related blog posts:

• Beware "voodoo" brain science (March 10, 2009)
• Violence risk meta-meta: Instrument choice does matter (June 19, 2011)

Hat tips: Ken Pope and Jane

New article of related interest:

False-positive psychology: undisclosed flexibility in data collection and analysis allows presenting anything as significant

Psychological Science (November 2011)
Joseph Simmons, Leif Nelson, and Uri Simonsohn (click on any of the authors' names to request a copy)

From the abstract: This article show[s] that despite empirical psychologists' nominal endorsement of a low rate of false-positive findings (≤ .05), flexibility in data collection, analysis, and reporting dramatically increases actual false-positive rates. In many cases, a researcher is more likely to falsely find evidence that an effect exists than to correctly find evidence that it does not. We present computer simulations and a pair of actual experiments that demonstrate how unacceptably easy it is to accumulate (and report) statistically significant evidence for a false hypothesis.

Multiple personality excluded in Texas insanity case

A serial rapist’s attempt to claim insanity based on multiple personality disorder fell flat, as a judge ordered the expert's trial testimony stricken from the record as junk science.

Billy Joe Harris

Psychiatrist Colin Ross testified that Billy Joe Harris, the so-called "Twilight Rapist" who targeted elderly women, suffered from multiple personality disorder -- now known as dissociative identity disorder (DID) -- brought on by childhood abuse.

Ross, who runs the Colin A. Ross Institute that provides trainings on psychological trauma and dissociative identity disorder, testified that the condition’s presence in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association establishes it as a "real and valid disorder."

Ross testified that he gave the defendant three tests for DID. However, in a most unusual procedure, rather than personally administering the tests, he gave them to the defense attorney to administer. Thus, he has no way of knowing for sure who filled in the tests, or under what circumstances. 

Ross testified that the defendant's scores on a screening test, the Dissociative Experiences Scale, were so high that he questioned the test's validity. He also conceded that the defendant was "clearly telling stories that are not true" about other aspects of his life, for example falsely claiming to have served in Iraq when he was actually in Saudi Arabia. However, Ross testified that after getting a chance to talk personally with one of Harris's alters, "Bobby," he was convinced of Harris's claim of multiple personalities.

"I don't think he's faking the dissociative identity disorder," he testified. "I could be wrong."

The real culprit, David the Dog

The defendant, a former prison employee, also took the witness stand, "weaving tales of bestiality, aliens, transvestites and combat heroism," in the words of news reporter Sonny Long. Harris testified that he had three other personalities inside him, including a black Great Dane named David who committed the rapes.

A dramatic moment came during cross-examination, when prosecutor Bobby Bell asked to speak to the defendant's alter, also named Bobby. As Long described the scene:

Harris lowered his head momentarily, raised it back up, rolled his neck and declared in a deep voice to be "Bobby."

Several jurors stifled laughter during the subsequent give-and-take between Harris and Bell, according to Long's account in the Victoria Advocate.

But perhaps even more damaging to Harris's credibility was an audiotape played for the jury in which he talks to his girlfriend about having put on "a good show" in court one day. Earlier that day, he had fallen to the floor and twitched and shook until he was restrained. The girlfriend warned Harris that the telephone call was being recorded, to which Harris replied, "I know it."

Forensic psychologist Walter Quijano also testified for the defense. (If the name sounds familiar, he has been in the spotlight for using race as a risk factor in death penalty cases, as I recently blogged about.) He testified that when multiple personality popped up as an issue, he stepped back because that is not an area of expertise for him. However, he did testify that it is unusual for someone to begin a rape career so late in life. Harris is 54.

Mere presence in DSM doesn’t establish validity

After the defense rested, the prosecution called as a rebuttal witness a Minnesota psychologist and attorney who has made a crusade out of pushing so-called "junk science" out of the courts.

Robert Christopher Barden testified that dissociative identity disorder (aka multiple personality disorder) is a controversial condition looked upon with skepticism by the scientific mainstream. He cited several articles rejecting the condition as a viable diagnosis, despite its presence in the DSM.

"Because something is in the DSM doesn't mean it's reliable or should be allowed in a court of law," he testified, according to an article in the Victoria Advocate. "One of the ways to get junk science out of the legal system is you rely on the relevant scientific community. If something is controversial it means it's not generally acceptable."

Barden said the number of mental health professionals who tout dissociative identity disorder as viable are few and far between.

"There are a few pockets of people left who are doing this," he said. "The scientists I know condemn it to be the worst kind of junk science and dangerous to the public. Controversial and experimental theories should not be allowed to contaminate the legal system."

Concerning the tests given to Harris, Barden said, "There's no magic to these tests. It looks scientific. It looks professional, but when you get down into it, it's junk. It's unusual for a psychiatrist to interpret a psychological test and it's highly unethical for Mr. Cohen [the defense attorney] to give the tests."

After Barden’s testimony that the condition is not generally accepted by the scientific community, despite the fact that it is listed in the DSM, District Judge Skipper Koetter ordered Dr. Ross’s testimony on dissociative identity disorder stricken from the record.

Justice, Texas-style

In the end, the defendant’s overdramatization and courtroom theatrics likely did him in. During the trial, he trembled and twitched and sat in the courtroom with paper stuffed in his ears, which his attorney said was “to keep the voices from speaking to him."

The jury took only 10 minutes to convict Harris, and another 10 minutes later in the month to sentence him to life in prison.

After the verdict, Barden said in a press release that the outcome demonstrates “the power of science-law teams in protecting the legal system from junk science testimony."

Barden has been involved in hundreds of lawsuits, criminal prosecutions and licensure actions across the United States over the past two decades, targeting not only multiple personality disorder but also quack therapists in the repressed memory and rebirthing therapy movements.

Judge Koetter's ruling is not the last word, of course, as it is just one trial judge's opinion. Appellate courts in other states have ruled differently. For example, in the 1999 case of State v. Greene (139 Wn. 2d 64), the Washington Supreme Court held that dissociative identity disorder was a generally accepted diagnosis because it was listed in the DSM-IV, and therefore met the Frye test for admissibility. But the Court went on to say that the applicability of this diagnosis to the issue of criminal responsibility was problematic and that testimony about DID was not "helpful" to the jury. (The Trowbridge Foundation has more information on this case HERE.)

The battle lines over dissociative identity disorder have heated up in the dozen years since that ruling, so who knows how an appellate court might rule today.

For those interested in learning more about the controversy, I recommend the chapter "Dissociative Identity Disorder: Multiple Personalities, Multiple Controversies" by Scott Lilienfeld and Steven Jay Lynn, in their book, Science and Pseudoscience in Clinical Psychology.

Steffan's Alerts: New column features fresh scholarship

In a new column launching today, forensic psychologist Jarrod Steffan scours the academic journals as they roll off the presses and brings you his top choices for articles of interest to forensic practitioners. Just click on a title to go to the journal site and read the full abstract; click on an author's name to request the full article. Feel free to leave comments on this new feature in the comments section of the blog.

Expert testimony in false confession cases

Mock jurors perceive that coercive interrogation tactics elicit confessions from guilty but not innocent suspects. Authors Iris Blandon-Gitlin, Katheryn Sperry, and Richard Leo go on to report the effects of an actual disputed confession case on jurors’ perceptions of false confessions in the current issue of Psychology, Crime and Law.

Meta-analysis of mental health courts

Are mental health courts working? Preliminary analyses point in the direction of success, according to an article by Christine Sarteschi and colleagues published in the Journal of Criminal Justice.

Malleability of juvenile offenders’ risk for recidivism

In the new issue of Criminal Justice and Behavior, Claudia E. Van Der Put and colleagues provide data showing that dynamic risk of adolescents' decreases as they age, thereby affecting the effectiveness of risk assessment and related interventions.

Feigning competence to proceed to trial

Preliminary data, reported by lead author Randy Otto in Assessment, suggest that a new measure called the Inventory of Legal Knowledge may assist evaluators in appraising defendants’ response style in competency to stand trial evaluations.

• A previous blog post on the new instrument is HERE.

Prostitution and serial murderers

Compared to killers of nonprostitutes, serial murderers of prostitutes have killed more and for longer periods of time, according to a study by Kenna Quinet published in Homicide Studies.

The state of the science in stalking

In Aggression and Violent Behavior, Kathleen Fox, Matt Nobles, and Bonnie Fisher take stock of the literature on stalking assessment and, based on their review of 56 studies, recommend guidelines for future research.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist whose practice is based out of Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

Forensic update: Malingering and incompetency

New response style measure hitting the market

Randy Otto and colleagues are as busy as beavers these days. I just blogged about Dr. Otto's new violence risk assessment text; now he and colleagues Jeffrey Musick and Christina Sherrod are releasing the Inventory of Legal Knowledge, a brief measure of response style for defendants undergoing adjudicative competence evaluations.

The 61-item, true-false test is orally administered and takes about 15 minutes. Questions are phrased in simple language and concern the legal process. It's highly portable for in-custody settings. And at $129 for the complete kit it's not a bad deal, considering PAR's normally hefty pricing. (You can order it now, but it won't actually release until mid-September.)

The theoretical basis is the same as for the Test of Memory Malingering and other measures of malingering; one suspects dissimulation when scores are either significantly lower than chance or significantly lower than attained by relevant normative groups.

A validation study has been published online in advance of the print edition of Assessment. The study, by the test authors, is titled: “Convergent validity of a screening measure designed to identify defendants feigning knowledge deficits related to competence to stand trial.” Here is the Abstract:

Because some defendants undergoing evaluation of their competence to stand trial may feign limitations in their ability to understand and participate in the legal process, assessment of their response style is critical. Preliminary research indicates that the Inventory of Legal Knowledge (ILK) has some potential to identify persons feigning competence related impairments. This study examined the convergent validity of the ILK using a sample of criminal defendants who, while undergoing competency evaluations, were administered the ILK and other response style measures. Moderate correlations between the ILK and these other tools provided some support for the ILK as a measure of response style.

More information is HERE.

Online review of updated SIRS malingering test

Richard Rogers' widely utilized Structured Inventory of Reported Symptoms (SIRS) has just been updated with a second edition, and forensic psychologist Steve Rubenzer of Houston, Texas (where "we don't only sing, but we dance just as good as we walk") has a critical review in the Open Access Journal of Forensic Psychology. The abstract:

The Structured Inventory of Reported Symptoms-2 (SIRS-2) contains significant changes designed to prevent false-positive and false-negative classification errors. While the SIRS-2 has many laudatory features, the manual contains some erroneous and questionable statistics and arguments, and authors sometimes stray from the best practices advocated by the first author. The SIRS-2 is a strong choice for assessing feigned psychosis and severe psychopathology. However, evidence for its value in assessing many other conditions, particularly somatic complaints and feigned cognitive impairment, is quite limited.

The full review is online HERE.

Overview: Feigning adjudicative incompetence

And, there's more! Sherif Soliman and Phillip J. Resnick have an overview of accepted methods for detecting feigning in competency evaluations, including specific instruments and their limitations, forthcoming from in an upcoming issue of Behavioral Sciences & the Law that is now online in advance of the print edition. The abstract:

Competence to stand trial (adjudicative competence) is the most requested forensic psychiatric evaluation, with an estimated 60,000 referrals annually. The challenge of detecting feigned incompetence has not been systematically studied until the past decade. Estimates of feigned adjudicative incompetence vary from 8 to 21%. This article reviews techniques for detecting malingered psychosis and malingered cognitive impairment during competence evaluations. Specific techniques for assessing feigned adjudicative incompetence and estimating the malingerer's genuine abilities are discussed. A stepwise approach to suspected feigned adjudicative incompetence is proffered.

Since this manuscript was already in press when the new ILK and the revised SIRS-2 were released, these instruments are not reviewed. In addition to a basic overview of instruments, however, Soliman and Resnick also describe a structured approach. As the authors point out, "Unlike many other evaluations, the assessment of adjudicative competence does not end with the determination that the defendant is malingering." Even with an uncooperative individual, the evaluator must make an effort to determine the subject's genuine capabilities.

Correspondence about that article should go to Dr. Soliman, Senior Clinical Instructor of Psychiatry at Case Western Reserve University in Ohio.

To catch a liar: Don't watch Fox-TV

When the TV show Lie to Me jumped off in 2009, the hype presented it as grounded in true-to-life science of lie detection. Social scientist Paul Ekman of the University of California at San Francisco, upon whom the show is based, even critiques the scientific accuracy of each episode on his Fox-TV blog.

But watching the show actually makes people WORSE at detecting deception, while at the same time increasing their overall suspiciousness and cynicism about others' honesty, according to a carefully designed study just published in the journal Communication Research.

"Lie to Me appears to increase skepticism at the cost of accuracy,” reports the research team led by Timothy Levine of Michigan State University.

As reported by Tom Jacobs at Miller-McCune, the findings have real-world implications:

Levine and his colleagues argue that … most recent research casts doubt on the accuracy and effectiveness of lie-detection methods presented on the series as unfailingly successful…. So once again, "fictional media portrayal of social science theory leads to confusion between fiction and fact," the researchers write. "Viewers (of the show) may come away with the false sense they can better detect lies. Viewers may also acquire a false sense that law enforcement officers are being effectively trained to detect deception and, therefore, may be less critical as jurors or witnesses." So the next time you turn on a television show, keep in mind that the creators just may be lying to you.

Jacob’s full report on the study is HERE.

Related blog posts:

• "CSI Effect": Fact or fiction? (May 4, 2010)
• Does CSI Effect really lead to more acquittals? (April 1, 2008)

Mitchell to plead insane

No surprise, but Brian David Mitchell has filed official notice that he plans to go for an insanity defense. Mitchell, as you all know, is awaiting trial in the 2002 kidnapping of Elizabeth Smart in Salt Lake City. The defense notice states an intent to rely upon unspecified "expert testimony as to mental disease or defect." I'm not holding my breath that the trial will start as scheduled on November 1, but when and if it does it is bound to be quite interesting.

I highly recommend that all forensic practitioners read U.S. District Judge Dale Kimball's lengthy ruling on Mitchell's competency to stand trial, issued four months ago. At 149 pages, it's the most comprehensive competency decision I have seen. In describing Mitchell as a cunning malingerer, the decision has plenty of implications for the insanity trial as well.

Utah abolished the insanity defense some years back. The state now uses the restrictive standard of Guilty But Mentally Ill, under which evidence of mental disorder can be introduced only for the restricted purpose of disproving mens rea, or the mental state that must be present in order to be convicted of certain special-intent offenses. (A handy chart showing the insanity standards of each U.S. state is HERE.) However, since the federal government is prosecuting Mitchell, he should still be able to rely upon the defense.

POSTSCRIPT: Subsequent news coverage on the government's response to the insanity filing is HERE.

Response bias: Faith or science?

Most extensively studied topic in applied psychological measurement

After one hundred years and thousands of research studies, perhaps we are no closer than ever to understanding how response bias -- a test-taker's overly positive or negative self-presentation -- affects psychological testing. Perhaps what we think we know -– especially in the forensic context -– is mostly based on faith and speculation, with little real-life evidence.

That is the sure-to-be controversial conclusion of a landmark analysis by Robert E. McGrath of Fairleigh Dickinson University, an expert on test measurement issues, and colleagues. The dryly titled "Evidence for response bias as a source of error variance in applied assessment," published in Psychological Bulletin, issues a challenge to those who believe the validity of testing bias indicators has been established, especially in the forensic arena.

The authors conducted an exhaustive literature review, sifting through about 4,000 potential studies, in search of research on the real-world validity of measures of test response bias. They sought studies that examined whether response bias indicators actually did what we think they do -- suppress or moderate scores on the substantive tests being administered. They searched high and low across five testing contexts -- personality assessment, workplace testing, emotional disorders, disability evaluations, and forensic settings. Surprisingly, out of the initial mountain of candidate research, they found only 41 such applied studies.

Of relevance here, not a single study could be found that tested the validity of response bias indicators in real-world child custody or criminal court proceedings. Indeed, only one study specifically targeting a forensic population met inclusion criteria. That was a 2006 study by John Edens and Mark Ruiz in Psychological Assessment looking at the relationship between institutional misconduct and defensive responding on test validity scales.

Does the "Response Bias Hypothesis" hold water?

The authors tested what they labeled the response bias hypothesis, namely, the presumption that using a valid measure of response bias enhances the predictive accuracy of a valid substantive indicator (think of the K correction on the MMPI personality test). Across all five contexts, "the evidence was simply insufficient" to support that widely accepted belief.

McGrath and colleagues theorize that biased responding may be a more complex and subtle phenomenon than most measures are capable of gauging. This might explain why the procedure used in typical quick-and-dirty research studies -- round up a bunch of college kids and tell them to either fake or deny impairment in exchange for psych 101 credits -- doesn't translate into the real world, where more subtle factors such as religiosity or type of job application can affect response styles.

It is also possible, they say, that clinical lore has wildly exaggerated base rates of dishonest responding, which may be rarer than commonly believed. They cite evidence calling into question clinicians' widespread beliefs that both chronic pain patients and veterans seeking disability for posttraumatic stress disorder are highly inclined toward symptom exaggeration.

Unless and until measures of response bias are proven to work in applied settings, using them is problematic, the authors assert. In particular, courts may frown upon use of such instruments due to their apparent bias against members of racial and cultural minorities. For example, use of response bias indicators has been found to disproportionately eliminate otherwise qualified minority candidates from job consideration, due to their higher scores on positive impression management. (Such a finding is not surprising, given Claude Steele's work on the pervasive effects of stereotype threat.)

"What is troubling about the failure to find consistent support for bias indicators is the extent to which they are regularly used in high-stakes circumstances, such as employee selection or hearings to evaluate competence to stand trial and sanity," the authors conclude. "The research implications of this review are straightforward: Proponents of the evaluation of bias in applied settings have some obligation to demonstrate that their methods are justified, using optimal statistical techniques for that purpose…. [R]egardless of all the journal space devoted to the discussion of response bias, the case remains open whether bias indicators are of sufficient utility to justify their use in applied settings to detect misrepresentation."

This is a must-read article that challenges dominant beliefs and practices in forensic psychological assessment.

UK: Lie detection critic silenced by lawsuit

Hearing voices lately? If not, that could be because corporate interests are using the legal system to keep critical voices from speaking out about controversial new tools in our field, according to European scholars.

A Swedish phonetics professor says when he challenged the premises underlying an Israeli voice risk analysis (VRA) lie detection system that the British government has spent 2.4 million pounds pilot testing, the manufacturer threatened his publisher into withdrawing a manuscript from press. The government wants to employ voice stress analysis to detect benefits fraud; here in the United States, police frequently use similar technologies in criminal interrogations.

Francisco Lacerda, the Stockholm University professor, said the censorship "showed how English law was damaging science abroad as well as in the UK," according to an article in the Times of London.

Responding to a series of similar high-profile defamation actions against scientists, a group called the Libel Reform Coalition is campaigning for changes in Britain's law. A Coalition petition, signed by about 44,000 people when I last checked, is online HERE; I encourage you to check out the group's website and sign the petition.

Breaking news: Mitchell labeled as malingerer, ruled competent

Checking for updates on the Elizabeth Smart case for tonight's lecture on competency restoration, I see that the judge ruled just moments ago that Brian David Mitchell is competent to stand trial.

In an opinion that went on for a hefty 149 pages, U.S. District Judge Dale Kimball agreed with prosecution psychiatrist Michael Welner that Mitchell is a psychopath who is faking mental illness to avoid criminal responsibility. The 56-year-old alleged kidnapper "does not presently suffer from a mental disease or defect that impedes his rational and factual understanding" of the proceedings against him, the judge ruled.

The decision came after a 10-day competency hearing at which Dr. Jennifer Skeem testified that Mitchell suffered from a delusional disorder and was incompetent.

Judge Kimball's 149-page ruling is online HERE.
Today's Associated Press coverage is online HERE.
My previous coverage of the case includes:

• "Legal pointillism": New approach to competency
• Epic competency hearing continues
• Record-breaking fee for competency report?
• Mitchell slated for epic competency hearing
• Utah court: OK to forcibly medicate accused kidnapper

Epic competency hearing continues

Vigorous cross-examination of prosecution psychiatrist

Since I'm receiving back-channel requests from colleagues to extend my coverage of the Brian David Mitchell case, and since it is after all one of the most historic competency hearings in recent memory, here is today's breaking news -- culled mainly from a report by Pat Reavy of the Deseret News.

Today, defense attorney Robert Steele vigorously cross-examined prosecution psychiatrist Michael Welner about why he did not put greater weight on the opinion of other experts, including Mitchell's treating psychiatrist at Utah State Hospital.

The attending physician, Dr. Paul Whitehead, believes that Mitchell is both psychotic and incompetent to stand trial. That opinion is shared by prominent forensic psychologists Jennifer Skeem and Stephen Golding, all three of whom are listed as defense witnesses. (See Judge Atherton’s 2005 ruling for a comprehensive analysis of the opinions of Skeem and Golding.)

"This is about Brian Mitchell. It's not about Dr. Whitehead, it's not about Dr. Skeem, it's not about Dr. Golding," Welner retorted on the witness stand today. He is defending his opinion, rendered under direct examination last week, that Mitchell is neither psychotic nor incompetent to stand trial for kidnapping and raping Elizabeth Smart back in 2002.

As you will recall from a previous post, Welner is a prominent New York psychiatrist who was paid about half a million dollars for his lengthy competency report. I don't know how much he is being paid for his court testimony, but I would sure love to know the total of federal tax dollars being expended on this massive competency trial.

Pat Reavy's full report in the Deseret News is available online.