"No Lie" fMRI to be introduced in court?

Last week, I blogged about neuroscientists' concerns about fMRI brain imaging. Critics say its scientific reliability and validity is far from established, and that if it was introduced in court, its colorful graphics might mislead jurors and judges and derail justice.

Just days later, the good folks over at the Stanford Center for Law and the Biosciences have learned of a pending case in California in which the "No Lie MRI" (I kid you not!) may be introduced in court to establish that a parent did not molest his child.

The case is a child protection hearing in juvenile court, so the records are sealed. The issue is whether a child should be removed from the home due to alleged sexual abuse by a parent, explains blogger Emily Murphy, a Stanford Law School fellow.

According to Murphy, a hearing is imminent on whether the fMri-based "truth verification" technique will be allowed in court. Under California's Kelly-Frye standard for evidence admissibility (which is different from the federal Daubert test), a scientific technique cannot be introduced in court unless it is generally accepted within "the relevant scientific community." The method's reliability must also be established, generally by a properly qualified expert.

If you read my blog post last week, you may be wondering how a novel technique like the fMRI could possibly meet that "general acceptance" standard.

Well, according to Ms. Murphy, the defense will argue that the "relevant scientific community" is a narrow group consisting only of scientists who research and develop fMRI-based lie detection. Tricky, huh? As Ms. Murphy comments:

Limiting the "relevant community" to only those who research and develop fMRI based lie detection is without merit, if only because such a definition precludes effective or sufficient peer-review. Indeed, it is arguable such a narrowly-defined community has a strong incentive to exaggerate its claims of accuracy and overlook unanswered questions for financial gain if such techniques are "legally admissible."

The few practitioners who research and develop fMRI-based deception detection are not the only qualified people to comment on the accuracy and validity of the technique. Statisticians familiar with Bayesian analysis, cognitive neuroscientists familiar with technical and analytical constraints, and researchers working to elucidate the neural basis of memory, decision-making, and social behavior should all make up the "relevant scientific community" for such a complex and as-yet poorly characterized technology. Further, I suspect the community of peer-reviewers that have reviewed the articles being proffered in support of the evidence of fMRI testing on deception is probably a useful proxy for the legally relevant scientific community, and extends well beyond the handful of researchers working directly on fMRI-based deception detection.

As to Murphy's last hope -- that journal peer reviewers could stand in for the legally relevant scientific community -- maybe that would help, and maybe it wouldn't. Remember, as I pointed out in last week's post, researchers at UC San Diego have found that the publishers of leading scientific journals are just as wowed by fMRI technology as everyone else, and they are uncritically promoting studies of questionable statistical merit.

To commercial ventures like No Lie MRI in California and its competitor, Cephos Corporation in Massachusetts, profit is the bottom line. Despite the controversy surrounding the reliability and validity of the lie detection technique, they are aggressively marketing the tools to clients and attempting to get them accepted in court.

Indeed, over at New York University's Scienceline, the president and chief executive of the eight-person start-up Cephos Corporation says he believes it it has a "strong possibility of being introduced as evidence" in court within the next couple of years.

Maybe sooner, depending upon the outcome of this case.

POSTSCRIPT: After opponents to the fMRI's introduction mounted a vigorous opposition and prepared to do battle at an evidentiary hearing, "the proponents of the evidence withdrew their request to have it admitted, thus ending the issue in [the] case," according to a March 25 letter from the San Diego County Counsel's Juvenile Dependency Division. Although fMRI proponents bowed out of this battle, we are sure to see more attempts to prematurely introduce brain scans as evidence in court in the coming months and years.

Postscript thanks to Phil Cave, Court-Martial Trial Practice

My previous post, with lots of links to critical research, is HERE. The image, above, is supposedly an excerpt from the actual case report.

Special issue on sex offending

For all of you sex offender specialists, the Federal Sentencing Reporter's special issue on sex offenders is now available. It's got some excellent policy-related coverage, including a historical overview by editor Michael M. O'Hear, Perpetual Panic, that is available for online download. For the rest of the articles, you need to subscribe or request them from the authors. (Law professor Corey Yung's article, along with many others he has written on related topics, is accessible for download for free from the Social Science Research Network.) The offerings include:

• Perpetual Panic - Michael M. O'Hear
• Sex Offender Treatment: Reconciling Criminal Justice Priorities and Therapeutic Goals - Mary Ann Farkas, Gale Miller
• Child Pornography Sentencing: The Road Here and the Road Ahead - Ian N. Friedman, Kristina W. Supler
• Sexual Predator Laws: A Two-Decade Retrospective - Eric S. Janus, Robert A. Prentky
• Kennedy v. Louisiana: A Chapter of Subtle Changes in the Supreme Court's Book on the Death Penalty - Mary Graw Leary
• Brandishing the Mark of Cain: Defects in the Adam Walsh Act - Joseph L. Lester
• American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness - Michael Petrunik, Lisa Murphy, J. Paul Fedoroff
• From Wetterling to Walsh: The Growth of Federalization in Sex Offender Policy - Richard G. Wright
• The Sex Offender Registration and Notification Act and the Commerce Clause - Corey Rayburn Yung

New book review in California Lawyer

My review of Charles Patrick Ewing's Trials of a Forensic Psychologist is now available online at the California Lawyer website. Here is how the review begins:

Billy Shrubsall was the top student at his small Niagara Falls, New York, high school. Thus, it came as a surprise when he didn't show up to give the 1988 valedictory address. But he had good reason. Just hours earlier, the 17-year-old had clubbed his domineering mother to death.

To explain Billy's horrific crime, his attorney advanced a theory of "psychological self-defense." The attorney retained forensic psychologist and attorney Charles Patrick Ewing, who had recently advanced the novel doctrine in his 1987 book Battered Women Who Kill (Lexington Books). Ewing's sympathetic testimony paved the way for a plea bargain under which Shrubsall served just 16 months in prison. A model prisoner and parolee, Shrubsall went on to graduate from an Ivy League university and become a Wall Street stock analyst.

But all was not as rosy as it appeared. The ostensibly rehabilitated and upright citizen still had a dark side as a vicious misogynist. He had been assaulting girls since his mid-teens, and a decade after his mother's death he brutally assaulted at least three women in Halifax, Nova Scotia. In one assault eerily reminiscent of his mother's beating death, Shrubsall clubbed a female store clerk with a baseball bat, shattering her skull.

Shrubsall's case is one of more than 600 in which Ewing has testified as an expert. But that case still haunts him, as he states in his latest book, Trials of a Forensic Psychologist: "[A]fter decades of working with the victims of violence and sexual abuse, I know all too well the awful harm Shrubsall did to the women he later victimized ... to this day when I testify as an expert, I am often questioned about my role in this case."

The review continues HERE.

New York Times reports on Czech castration furor

Last month, I reported on the controversy in Europe over Czechoslovakia's castration of convicted sex offenders. Yesterday, the New York Times ran a feature report, excerpted here:

... Whether castration can help rehabilitate violent sex offenders has come under new scrutiny after the Council of Europe’s anti-torture committee last month called surgical castration “invasive, irreversible and mutilating” and demanded that the Czech Republic stop offering the procedure to violent sex offenders. Other critics said that castration threatened to lead society down a dangerous road toward eugenics.

The Czech Republic has allowed at least 94 prisoners over the past decade to be surgically castrated. It is the only country in Europe that uses the procedure for sex offenders. Czech psychiatrists supervising the treatment — a one-hour operation that involves removal of the tissue that produces testosterone — insist that it is the most foolproof way to tame sexual urges in dangerous predators suffering from extreme sexual disorders.

Surgical castration has been a means of social control for centuries. In ancient China, eunuchs were trusted to serve the imperial family inside the palace grounds; in Italy several centuries ago, youthful male choir members were castrated to preserve their high singing voices.

These days it can be used to treat testicular cancer and some advanced cases of prostate cancer.

Now, more countries in Europe are considering requiring or allowing chemical castration for violent sex offenders. There is intense debate over whose rights take precedence: those of sex offenders, who could be subjected to a punishment that many consider cruel, or those of society, which expects protection from sexual predators....

The full article is online HERE. My Feb. 15 coverage of the issue (with links to other related stories) is HERE.

Image: Eunuch, 1749 - Wikimedia Public Domain

Beware "voodoo" brain science

A discussion among colleagues of a brain imaging study purporting to distinguish heterosexual from homosexual men prompted me to write on this topic. Perhaps even more controversial than categorizing sexual orientation, given the current legal climate, was the researchers' claim that their technique holds promise for identifying sexual deviants such as pedophiles and the those with sexual paraphilias.

Brain imaging is all the rage these days. The past decade has witnessed an explosion of interest in the fMRI, with literally thousands of studies, several new journals, and lavish federal funding and attention in the popular media. But some prominent neuroscientists express concerns about both the science and the ethics of fMRI research. Likening it to the old pseudo-science of phrenology, they caution that the public may be lured by vivid and colorful graphics into a misleading impression of scientific precision.

So, what is the fMRI?

Unlike the more established Magnetic Resonance Imaging (MRI) technique, which produces static images of the brain, the functional Magnetic Resonance Imaging (fMRI) provides images of the brain in action, or as it functions. The most widely used fMRI technique in cognitive neuroscience research is the BOLD (Blood Oxygen Level Dependent) method. This method is based on the premise that activation of specific brain regions affects blood flow and blood oxygenation, which can then be measured.

What does this have to do with forensics?

In the forensic arena, probably the most widely publicized research application of the fMRI is in the area of lie detection. fMRI data indicate that certain parts of people's brains -- specifically the anterior cingulate cortex and superior frontal gyrus -- are activated when they lie. But other studies show that the anterior cingulate activates during many other cognitive activities as well, indicating a lack of specificity that makes the technique inappropriate in the real world.

Other forensic applications include the hunt for the ever-elusive psychopath (the image at the left purports to show the brain of a psychopath in action). Some criminal defense attorneys also show fMRI images of their clients to jurors in an attempt to prove brain damage and thereby reduce their clients' legal culpability.

And, as I just said, researchers are starting to apply fMRI techniques to the study of human sexuality, including sexual orientation and sexual deviancy.

What are the problems?

Neuroscientist critics are issuing increasingly vocal alarm calls over both the underlying science and the practical applications of neuroimaging. Their central areas of concern include:

• The measurement techniques lack scientific precision
• Claims of scientific reliability and validity are overstated
• The fMRI overemphasizes brain localization when the brain functions more as a whole
• Applying group fMRI to individuals is improper at this stage of the science
• Marketing and forensic applications are ethically and philosophically problematic

Most recently, in a potentially landmark analysis, a group of psychologists based at the University of California at San Diego examined the analytical techniques used in 54 peer-reviewed fMRI brain-scanning studies published in prominent scientific journals. They concluded that the methods used in half the studies were so "seriously defective" that the findings "should not be believed."

Lead researcher Harold Pashler went so far as to call the statistical methods "voodoo" that should be especially shunned in the forensic arena:

"In the law, individual differences are the main focus," the Wall Street Journal quoted Pashler as saying. "And it often could come down to these voodoo statistics."

The article, "Puzzlingly High Correlations in fMRI Studies of Emotion, Personality,
and Social Cognition" (originally titled "Voodoo Correlations in Social Neuroscience") will be published in a forthcoming issue of the Association for Psychological Science's journal Perspectives in Psychological Science. Reports the abstract:

"Functional Magnetic Resonance Imaging studies of emotion, personality, and social cognition have drawn much attention in recent years, with high-profile studies frequently reporting extremely high (e.g., >.8) correlations between behavioral and self-report measures of personality or emotion and measures of brain activation. We show that these correlations often exceed what is statistically possible assuming the (evidently rather limited) reliability of both fMRI and personality/emotion measures. The implausibly high correlations are all the more puzzling because method sections rarely contain sufficient detail to ascertain how these correlations were obtained. We surveyed authors of 54 articles that reported findings of this kind to determine a few details on how these correlations were computed. More than half acknowledged using a strategy that computes separate correlations for individual voxels, and reports means of just the subset of voxels exceeding chosen thresholds. We show how this non-independent analysis grossly inflates correlations, while yielding reassuring-looking scattergrams. This analysis technique was used to obtain the vast majority of the implausibly high correlations in our survey sample. In addition, we argue that other analysis problems likely created entirely spurious correlations in some cases. We outline how the data from these studies could be reanalyzed with unbiased methods to provide the field with accurate estimates of the correlations in question. We urge authors to perform such reanalyses and to correct the scientific record."

Be sure to read this article (available HERE, as well as some of the related resources, below) before you get up on the witness stand and wax eloquent about the wonders of brain-scanning technology. Otherwise, on cross-examination you might be in for a nasty surprise.

Related resources:

• Law and Ethics of Brain Scanning, resources from a 2007 conference at Sandra Day O’Connor College of Law
• Law and Neuroscience Project, John D. and Catherine T. MacArthur Foundation
• "The Brain, Your Honor, Will Take the Witness Stand: Researchers Probe How the Mind Determines Crime and Punishment, but the Science Isn't Beyond a Reasonable Doubt," Wall Street Journal, Jan. 15, 2009
• "fMRI Beyond the Clinic: Will It Ever Be Ready for Prime Time?" by Richard Robinson, Public Library of Science Biology
• "Functional Magnetic Resonance Imaging (fMRI): Much Ado About What?" by Camilla Culler
• "Fact or Phrenology? The growing controversy over fMRI scans is forcing us to confront whether brain equals mind," by David Dobbs, Scientific American, March 2005
• "Can fMRI Really Tell If You're Lying?" by Gary Stix, Scientific American, August 2008
• "Neuroscience and the Law: If scientists can prove that the brain determines the mind, lawyers could convince juries that defendants may not be responsible for their crimes," By Michael S. Gazzaniga and Megan S. Steven, Scientific American, April 2005
• "The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain,” by William R. Uttal

PS: My followup post on an attempt to get the "No Lie MRI" introduced in a Southern California parental termination case is HERE.

3 decades in the hole, but were they guilty?

NPR's Legal Affairs:
Case Of Angola Inmates Heads To Court

The fate of two men who spent longer in solitary confinement than any other U.S. inmate will be argued in a federal court in Louisiana. The men were convicted 36 years ago of killing a prison guard in a racially charged investigation. After almost four decades in solitary, there are now questions about their guilt.

Audio story available HERE (after 7:00 pm WCT on March 3, 2009)

Today's Times-Picayune coverage is HERE

Last year's Mother Jones interview with the former Black Panthers, Albert Woodfox and Herman Wallace, is HERE

Photo: Replica of prisoner Herman Wallace's solitary confinement cell at Angola (nicknamed “the last slave plantation") by artist Jackie Sumell. Photo credit: hragvartanian (Creative Commons license)

Scotland up, United States down

Nations differ on prosecution of pint-sized lawbreakers

If you took my blog quiz of February 3, you will recall that only eight people in the entire world are serving sentences of life without the possibility of parole for crimes committed at age 13, and that all eight are in the Prison Nation (aka the United States).

February was a big month for juvenile crime news. We had the little 4-year-old who shot his babysitter, a plea deal in the case of the Arizona 9-year-old who shot his father and another man to death, and -- most recently -- the 11-year-old Pennsylvania boy who will be prosecuted as an adult in the shooting death of a pregnant woman.

11-year-old Jordan Brown

In Pennsylvania, where kids as young as 10 can be tried as adults and sentenced to life in prison, Jordan Brown was initially locked in an 8-by-10 cell in an adult jail. Swimming in oversized clothes cuffed up around his wrists and ankles, he could not take showers or have visitors because that would have required him mingling with adult prisoners. A judge ordered him moved to a juvenile facility, but he still faces trial as an adult.

Having just conducted two back-to-back competency evaluations of 11-year-olds here in rainy California, I can tell you one thing for certain: They are NOT miniature adults. And except when they commit crimes, no one pretends that they are. After all, they may not drive, vote, buy alcohol, smoke cigarettes, sign contracts, or even decide to skip a day of school.

Not only do 11-year-olds just not get it but, as I have blogged about previously, transferring juveniles to adult courts actually increases rather than reduces recidivism!

While U.S. states engage in a dubious competition over who can try more young children as adults, more civilized Europeans are going in the opposite direction.

In most of Europe, children under 10 cannot even be prosecuted as criminals, much less tried and sentenced as adults. The age of criminal responsibility is as high as 15 in Scandinavian countries. And a British think tank recently recommended raising the age of criminal prosecution even more, to 16 or 18.

Just this week, Scotland announced plans to raise the age of criminal responsibility from 8 to 12 to bring it more in line with other European countries.

"There is no good reason for Scotland to continue to have the lowest age of criminal responsibility in Europe," said Scotland’s Justice Secretary, Kenny MacAskill. "Most importantly, the evidence shows that prosecution at an early age increases the chance of reoffending – so this change is about preventing crime."

Public policy based on data instead of hysteria? Now, that's positively un-American!

Related resources:

• Juvenile transfer increases recidivism: Department of Justice confirms multiple study findings (Aug. 19, 2008)
• Amnesty International: Children in the US Justice System
• Children serving life without parole: “Cruel and unusual?” (Feb. 3, 2009)
• Move over, Guantanamo - here comes Wisconsin: Lifetime detention for misconduct at age 14? (Dec. 2, 2008)
• Prosecutor will not use 9-year-old's confession (Jan. 6, 2009)
• Prison pipeline for transgender youth: Poor and minority especially at risk (March 26, 2008)
• Wikipedia: International chart, minimum age of criminal responsibility (Aug. 19, 2008)

Upcoming forensic training workshops

Forensic Training Institute - Diagnostic Controversies
April 16 (CA)

Your host (Karen Franklin) and colleague Craig Lareau will present this all-day training at the California Psychological Association convention in Oakland, California. Geared toward advanced-level forensic practitioners, we will focus on current diagnostic controversies in the field including those surrounding Antisocial Personality Disorder, Psychopathy, the sexual disorders as used in Sexually Violent Predator (SVP) proceedings, and Posttraumatic Stress Disorder.

Click HERE for more information and online registration.

Assessing Malingering and Miranda Rights Waiver
April 24 (VA)

If you want to get away from the cold and visit a pretty place, you might want to check out this excellent training down in Charlottesville, Virginia. Richard Rogers, whom most of you all know as a leading forensic psychology practitioner and scholar, is presenting this full-day training sponsored by the always-excellent Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia. Dr. Rogers will be presenting one-half day on malingering (the topic of his classic reference text) and one-half day on evaluation of Miranda Rights, another of his specialty areas.

Click HERE for more information and to register.

Assessing Violence Risk in Community Settings
May 22 (VA)

This is a chance to hear from John Monahan, probably the foremost expert on this topic. Monahan has authored or edited 15 books and written hundreds of articles; his work on violence risk is frequently cited by courts, including the California Supreme Court in the landmark Tarasoff v. Regents and the United States Supreme Court in Barefoot v. Estelle, in which he was referred to as "the leading thinker on the issue" of violence risk assessment. This training is also sponsored by the Institute of Law, Psychiatry and Public Policy (ILPP) at the University of Virginia.

Click HERE for information and registration.

Latest on controversial "Fake Bad Scale"

I wanted to alert my psychologist readers to the latest in the controversy over the "Fake Bad Scale" of the Minnesota Multiphasic Personality Inventory, a topic I have blogged about previously (HERE). If you are planning to use this Scale, you should be aware of this article and the others on both sides of the controversy.

The Fake Bad Scale (FBS) was developed to identify malingering of emotional distress among claimants in personal injury cases. It was recently added to MMPI-2 scoring materials, resulting in its widespread dissemination to clinicians who conduct psychological evaluations.

The latest article, in the interesting new journal Psychological Injury & Law, summarizes concerns about the Scale's reliability, validity, and potential bias against women, trauma victims, and people with disabilities.

The article concludes that the scale is not sufficiently reliable or valid to be used in court:

"Based on a review and a careful analysis of a large amount of published FBS research, the FBS does not appear to be a sufficiently reliable or valid test for measuring 'faking bad,' nor should it be used to impute the motivation to malinger in those reaching its variable and imprecise cutting scores. We agree with the conclusions of the three judges in Florida that the FBS does not meet the Frye standards of being scientifically sound and generally accepted in the field, and that expert testimony based on the scale should be excluded from consideration in court. The samples used to develop the FBS are not broadly representative of the populations evaluated by the MMPI-2, nor are its criteria used to define malingering objective and replicable. There is insufficient evidence of its psychometric reliability or validity, and there is no consensus about appropriate cut-off scores or use of norms."

The article is "Potential for Bias in MMPI-2 Assessments Using the Fake Bad Scale (FBS)." The Abstract and a "free preview" are online HERE; the full article requires a subscription but can be requested directly from the first author, James Butcher. Butcher and co-authors Carlton Gass, Edward Cumella, Zina Kally and Carolyn Williams present just one side of the heated controversy; a rebuttal is scheduled for publication in an upcoming issue of the journal, followed by other pro and con articles.

Related blog resources:

New MMPI scale invalid as forensic lie detector, courts rule: Injured plaintiffs falsely branded malingerers? (March 5, 2008) – contains links and citations to other sources

"Fake Bad Scale": Lawyers advocate exposing in court (May 20, 2008)

A list of FBS references and statement from the test's publisher is HERE

Hat tip: Ken Pope

Peach Tree law makes Wall Street Journal

In 1996, 17-year-old Christopher Noles had consensual sex with his 14-year-old girlfriend. He was arrested for statutory rape and served a few months in prison. Then, he went on with his life. He got a job, married his girlfriend, became a father -- all the things adults normally do.

But in 2006, Georgia -- like many other U.S. states -- passed laws limiting where sex offenders could live and work. Noles lost his job and his family could not find a place to live.

Now, the Wall Street Journal’s Stephanie Chen tells his troubling story of unintended consequences to Southerners and Yankees alike:

After Prison, Few Places for Sex Offenders to Live: Georgia's Rules That Keep Some Convicted Felons Far From Children Create Challenges for Compliance, Enforcement

The article is available online for free for only a few more days. I've also blogged a lot about the Georgia's sex offender laws over the past couple of years. Click HERE to read more.

Hat tip: Jane

Clueless 'science'

Guest essay by Jennifer L. Mnookin*

Law professor and vice dean, UCLA Law School

On television shows such as the "CSI" series, forensic science is high-tech, heroic and always right. The National Academy of Sciences released a long-anticipated report Wednesday on the real world of forensic science -- and the news is disturbing and downright ugly. Laboratories are woefully underfunded, and much of what passes for forensic "science" does not meet even minimal scientific standards. Yet, when forensic scientists testify in court, they often are embarrassingly overconfident about their findings.

The academy's report, commissioned by Congress and the result of years of investigation by a distinguished panel of independent experts, does not mince words in its indictment of the scanty research foundation upon which much forensic science now stands. The report asserts that "the current situation" is "seriously wanting, both because of the limitations of the judicial system and because of the many problems faced by the forensic science community." It also calls for the urgent creation of a federal agency devoted to encouraging research and to providing much-needed regulation and oversight.Put simply, although many kinds of forensic testimony -- involving handwriting identification, fingerprint evidence and ballistics, for example -- are enormously persuasive to a typical jury, they do not meet the basic requirements of good science.

But we don't need to wait for a new agency to make the necessary changes. Judges, who preside over the presentation of this evidence, need to exercise their role as gatekeepers to protect the integrity of our criminal justice system by requiring higher standards for forensic science when it's used as legal evidence.


What did the study's authors identify as some of the most significant problems?

Bias: Doctors testing a new medicine are -- appropriately -- not told which patients receive placebos and which get the test medication, because that knowledge might unconsciously bias their behavior and observations. But forensic scientists are frequently exposed to information that can potentially foster bias. Crime laboratories have failed to create adequate procedures for making testing "blind."

Error rates: Most of the forensic disciplines lack good information about how often practitioners make mistakes, a basic requirement of any science. Not knowing the error rate is bad enough, but some experts consistently testify under oath that their technique has an error rate of zero, an inherently preposterous claim.

No one really knows just how often document examiners incorrectly analyze handwriting samples, how frequently arson investigators get the cause of a fire wrong or how often forensic odontologists misidentify bite marks. Yet anecdotal information and research suggest that errors are disturbingly frequent. University of Virginia law professor Brandon Garrett's 2008 study of the first 200 convicted defendants exonerated by DNA evidence, for example, found that faulty forensic science testimony was second only to erroneous eyewitness identification as a cause of miscarriages of justice.

Over-claiming: Science deals in probabilities, not certainty. The only forensic science that makes regular use of formal probabilities is DNA profiling, in which experts testify to the probability of a match. None of the rest of the traditional pattern-identification sciences -- such as fingerprinting, ballistics, fiber and handwriting analysis -- currently has the necessary statistical foundation to establish accurate probabilities. Yet, instead of acknowledging their imperfect knowledge, fingerprint experts, for example, routinely testify that they can identify a specific person's prints to the exclusion of all other people in the world with 100% certainty.In 2004, the FBI, often said to have the nation's best crime lab, wrongly identified Oregon attorney Brandon Mayfield as a terrorist based on an erroneous fingerprint match. It eventually admitted its error, and the government had to pay him $2 million. There are hundreds of less adequate labs across the country. How much confidence can we have in them?

Structural independence: Here in Los Angeles, the city crime laboratory is part of the Police Department, and the county's lab reports to the sheriff. These kinds of arrangements are typical. But when the police and prosecutors pay and supervise the scientists, it stands to reason that the scientists may have difficulty establishing their independence.

The courts have almost entirely turned a deaf ear to these arguments, essentially giving forensic science and its practices a free pass, simply because they've been part of the judicial system for so long. Meanwhile, scandals continue to come to light across the nation involving error and even fraud in labs.The findings in the National Academy of Sciences report should spur judges to require higher standards. At a bare minimum, judges should immediately prohibit experts from testifying to impossibilities such as "an error rate of zero" or asserting that they are capable of making 100% certain identifications.In other cases, judges would be well advised to throw out forensic science altogether -- not forever, but until adequate research establishes, for example, that the conventional wisdom about evidence of arson is empirically valid, or until fingerprint and ballistics experts provide adequate proof that their real-world error rate is reasonably low. Courts should require forensic experts to back up their testimony with empirical evidence that they can do what they claim to be able to do.

We want and need forensic science in our legal system, but we have to be able to trust it. The forensic science community has been, at best, wary of, and often downright hostile to, serious inquiry into its strengths and limitations, especially by objective external researchers.

But if judges raised their standards and limited or excluded forensic evidence that didn't meet them, that fortress mentality would inevitably change. This much-needed research would probably reveal that forensic science is not as perfect as its practitioners have often claimed. But when forensic science rests on an appropriate scientific foundation, it will be far more deserving of our confidence. Our system of justice demands no less.

*From the Los Angeles Times of February 18, 2009, posted with the written permission of Professor Mnookin

Dr. Mnookin is a widely published law scholar and co-author of The New Wigmore: Expert Evidence. Her work focuses on evidence theory, expert evidence, and law and culture, with an emphasis on law and film. She is particularly interested in the connections between science, law and culture; her current work focuses on the history of expert and visual evidence in the American courtroom.

The National Academy of Sciences' important report, Strengthening forensic science in the United States: A path forward, is online here. A summary of the report is here. To listen to yesterday's Congressional briefing on the report, click here. A New York Times report on the study is here.

Veteran with PTSD won’t do time for robberies

Last month I wrote about the potentially landmark case in which an Army veteran was found insane in the armed robbery of a pharmacy. Sargent Binkley said he robbed that pharmacy and one other of painkillers to cope with his symptoms of post-traumatic stress disorder.

Yesterday, Sargent pleaded no contest in a separate San Francisco Peninsula robbery committed during the same time period, in exchange for a promise of probation. He had faced at least 12 years in prison.

Binkley cannot be formally sentenced until state hospital doctors find him sane and no longer dangerous. The ability of the white West Point graduate and former Eagle Scout to garner sympathy among jurors and prosecutors bodes well for his stay at the hospital. If I had to bet, I would predict state hospital psychiatrists will agree to a quick release.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense had argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. Prosecutors countered that Binkley exaggerated his military service and that his claim of involvement in drug interdiction in Honduras was pure fantasy. Further, they said, his addiction to pain pills stemmed not from military-related activities but from a hip injury incurred while he was running away from a production assistant for the Fox reality TV show "Temptation Island" after a bar fight.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

The case comes amid growing interest in the plight of veterans returning from the wars in Iraq and Afghanistan. Military leaders acknowledge that multiple deployments in particular put a severe strain soldiers and their families, and can increase the likelihood of domestic violence, alcohol abuse, and symptoms of post-traumatic stress disorder.

To handle a wave of arrests of soldiers, special courts for veterans are opening in several states, including Arizona.

Related stories:

Insanity verdict for soldier with PTSD: Case heralded as landmark for traumatized veterans (blog post, Jan. 14, 2009)

Ex-Army captain won't do time for two holdups (San Francisco Chronicle, Feb. 19, 2009)

Focus on violence by returning GIs (New York Times, Jan. 2, 2009)

New court is sought to aid vets charged with crimes (Arizona Republic, Jan. 6, 2009)

Reaching out to returning vets (Wisconsin Law Journal, Feb. 6, 2009 – subscription required)

Another ruling against federal sex offender law

From the Sacramento Bee:

In only the third such ruling in the nation, a Sacramento judge has found to be unconstitutional a statute that makes it a federal crime for someone to fail to register as a sex offender and relocate from one state to another.

U.S. District Judge Lawrence K. Karlton found that, in enacting the 2006 Sex Offender Registration and Notification Act, "Congress overstepped its authority under the (Constitution's) commerce clause…. This appears to be a plain usurpation of the state's police power."

Karlton made rulings this week in two prosecutions and threw them out, saying SORNA does not meet the U.S. Supreme Court's standard for congressional jurisdiction over interstate commerce.

At least 18 district judges have upheld SORNA, while only two others have found it is at cross-purposes with the commerce clause. Of the 12 federal appellate circuits, only two -- the 8th and 10th -- have addressed the issue, and both upheld the statute.

Related blog posts:

Court strikes down federal civil commitment law (January 9, 2009)

Challenge to juvenile sex offender risk prediction: Harsh federal law on shaky scientific ground (October 9, 2008)

Federal court strikes down portion of Adam Walsh Act (September 10, 2007)

International outrage: Czechs versus Saudis

In a good example of cross-cultural variations related to sexual behavior, international human rights groups are going after two countries for officially sanctioned policies that could not be more different:

Castrating prisoners . . .

In the Czech Republic, first-time, non-violent sex offenders such an exhibitionists can be imprisoned for life. Unless, that is, they agree to be castrated. In the past decade, at least 94 sex offenders have gone under the blade.

In a cleverly entitled article, "The unkindest cut," Time Magazine tackles the controversial issue of castration in that nation.

The Council of Europe, a human rights body, is demanding that the Czechs immediately stop the "degrading" punishment. But as the Dallas Morning News points out, although the Czech Republic may be the only country in Europe that allows the practice, it is certainly not unheard of in the United States. In Texas, for example, three prisoners have undergone voluntary surgical castration in recent years. Many more sex offenders around the country undergo "chemical castrations" that reduce their sex drive -- and potentially their legal sanctions.

Study findings are mixed as to whether castration, either surgical or chemical, is effective at curbing sex offender recidivism.

. . . vs. allowing child marriages

Meanwhile, a little bit to the southeast, Human Rights Watch is up in arms in the wake of a judge's refusal to annul the marriage of an 8-year-old girl to a 47-year-old man. The girl's father reportedly arranged the marriage to his friend in order to settle a debt; when the mother protested, the judge made the girl's husband sign a pledge that he would not have sex with the girl until she reaches puberty.

The nation's top cleric defended the practice, saying girls as young as 10 should be allowed to wed. "Those who think she's too young are wrong and they are being unfair to her," CNN News quoted Sheikh Abdul Aziz Al-Sheikh as saying.

Laws about what age children may marry, or have sexual relations, are complex and vary tremendously from nation to nation, and even within some nations (such as the United States). The median age at which a child can consent to sexual activity is somewhere around age 14-16, but varies from a low of about 9 to a high of 21.

At least the Saudi newlywed should be happy he does not live in the Czech Republic.

Postscript: In an out-of-court settlement, the 8-year-old has been allowed to divorce her husband.

Implications of PA case for juvenile courts

Today's New York Times has coverage of the astonishing case that I blogged about yesterday, on the two juvenile judges in Pennsylvania who were accepting kickbacks to send children to jail. Of interest to my readers, the case is calling public attention to juveniles' right to an attorney.

Children have a constitutional right to legal representation under a U.S. Supreme Court ruling in 1967. But in Pennsylvania and at least 20 other states, they can waive this right. Some say juveniles should be required to have a lawyer when they appear in court, as is the law in three states (Illinois, New Mexico and North Carolina).

"The juvenile system, by design, is intended to be a less punitive system than the adult system, and yet here were scores of children with very minor infractions having their lives ruined," Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, told the Times. "There was a culture of intimidation surrounding this judge and no one was willing to speak up about the sentences he was handing down."

Last year, according to the Times story, Pennsylvania's Supreme Court rejected a petition filed by the Juvenile Law Center about more than 500 juveniles who had appeared before Judge Ciavarella without legal representation. The court originally rejected the petition, but recently reversed that decision.

Given the secrecy surrounding juvenile court proceedings, some are also calling for greater public access - a double-edged sword that may cause unintended negative consequences, in my opinion. As the former director of the state's Office of Juvenile Justice pointed out, probation officers, prosecutors, and defense attorneys are already present in court and sworn to protect the interests of children; "it’s pretty clear those people didn't do their jobs."

The excellent followup article is here.

Photo credit: publik16 (Creative Commons license)

Evil lurked in Luzerne County

Something scary was happening in Luzerne County, Pennsylvania. A kid who had never been in trouble would show up in juvenile court for writing a prank note or having drug paraphernalia and -- BOOM -- he would disappear.

Kids were locked up for months at a time even when probation officers recommended against it. Youth advocates complained, but no one listened.

Now, everyone knows why. Two of the judges were running a scheme in which they shunted kids to private jails in exchange for at least $2.6 million in kickbacks. In what the media are calling "one of the most stunning cases of judicial corruption on record," one of the two bad judges actually shut down the county juvenile hall so kids would have to go to PA Child Care LLC, which owned him.

A senior judge from a neighboring county will have the laborious task of going through all cases handled by the judges for the past six years, to "identify the affected juveniles and rectify the situation as fairly and swiftly as possible."

A first step in rectifying the situation -- or at least making the wronged kids feel a bit better about the world -- might be to lock up the offenders. But after the judges pleaded guilty in federal court Thursday to tax charges, they were allowed to remain free pending sentencing.

Too bad they didn't afford that same courtesy to the youngsters who came before them.

Photo credit: "The Fog" by Canon in 2D (Creative Commons license)

Recommended reading: Juvenile competency

I was just looking over Ivan Kruh and Tom Grisso's new book, Evaluation of Juveniles' Competence to Stand Trial, as I sat down to write a rather complex report on an 11-year-old child. Wow! This little book is such a great tool, I thought I should plug it to those of you who work with juveniles.

As I wrote in my Amazon review, "You will not find this much comprehensive, up-to-date information on juvenile competency to stand trial (CST) evaluations in any other single source." It's a tiny little book, but it is jam-packed with information, very clearly written, with the concepts clearly explained.

Also, unlike the volume on SVP evaluations in the same new Best Practices in Forensic Mental Health Assessment series from Oxford University Press, this one tackles the controversies and complexities in the field head-on, rather than shying away from them.

My complete Amazon review is here, with links to other relevant resources. (As always, if you like it please click on the "Yes" button at the bottom, as that helps the placement of my reviews on Amazon.)

Megan’s Law: Millions for nothing

You all know about "Megan's Laws." They are named after Megan Kanka, a 7-year-old girl from "America's favorite hometown" of Hamilton, New Jersey, who was raped and murdered by her neighbor, a released sex offender named Jesse Timmendequas, on July 29, 1994.

Capitalizing on the fear this crime engendered, legislators proved themselves tough on crime by enacting Megan's Laws in all 50 U.S. states. The laws are designed to protect the public by mandating that convicted sex offenders register with local police and that police agencies keep the public informed about the whereabouts of these offenders.

But do the laws really protect the public?

Despite their enormous popularity, little research has been conducted into whether they work.

Now, a federally funded study of New Jersey's law has found the following dramatic effects:

• Effects on sex offender recidivism: NONE
• Effects on time to first re-arrest: NONE
• Effects on number of victims: NONE
• Effects on state budget: $3.9 million-plus (as of 2007)

The bottom-line conclusion?

"Given the lack of demonstrated effect of Megan's Law on sexual offenses, the growing costs may not be justifiable."

Other research has suggested that the laws may not only be ineffective at reducing sex offending, but they may paradoxically increase sex offenders' risk through the secondary effects of social stigmatization, loss of employment and housing, and even physical victimization, all of which increase stress and social isolation and make it harder for sex offenders to successfully reintegrate into society.

Americans are standing in hours-long, Depression-style lines for a couple of free eggs at Denny's. Our schools cannot even afford pencils or electricity in the classrooms. Yet we are willing to pay millions for laws that only provide an illusion of safety. Something is wrong with this picture.

The study, "Megan's Law: Assessing the Practical and Monetary Efficacy," by researchers Kristen Zgoba, Philip Witt, Melissa Dalessandro, and Bonita Veysey, is available here.

Children serving life without parole: “Cruel and unusual?”

Test your knowledge:

1. In the entire world, how many children are serving sentences of life without parole for crimes committed when they were 13 years old?

2. In what countries are those cases?

3. How many of those cases involve crimes in which no one died?

Answers: (1) There are only eight in the entire world. (2) All eight are in the United States. (3) Only two did not commit a murder. Both are Black, and both are in Florida.

In yesterday's New York Times, Supreme Court correspondent Adam Liptak reports on one of those two. Joe Sullivan, now 33, is serving life for the 1989 rape of a 72-year-old woman. As Liptak reports it:

The victim testified that her assailant was "a colored boy" who "had kinky hair and he was quite black and he was small." She said she "did not see him full in the face" and so would not recognize him by sight. But she recalled her attacker saying something like, "If you can't identify me, I may not have to kill you." At his trial, Mr. Sullivan was made to say those words several times. "It's been six months," the woman said on the witness stand. "It's hard, but it does sound similar."

Sullivan's trial lasted only one day. His lawyer, later suspended from practice, made no opening statement. Biological evidence was collected from the victim but was not presented at trial and has since been destroyed.

Now, in an appeal to the United States Supreme Court, the Equal Justice Initiative argues that Sullivan’s life sentence is cruel and unusual punishment, banned by the Constitution’s 8th Amendment.

People can argue about whether imprisoning a 13-year-old for life is cruel, comments Liptak, but "there is no question that it is unusual."

Liptak's column is here.

Further resources:

Equal Justice Initiative report, "Cruel and Unusual," on 13- and 14-year-old children sentenced to life in prison

Photo credit: Equal Justice Initiative. Hat tip: Jane.

State psychologist gets 7-year prison term

Update on North Dakota child porn case

Those of you who followed the case I reported on in December 2007, involving the sexually violent predator evaluator who was addicted to child pornography, may be interested in the outcome:

Joseph Belanger, who ran North Dakota's Sexually Dangerous Individual (SDI) civil commitment program, has been sentenced to seven years in prison after pleading guilty to charges of receiving and possessing materials involving the sexual exploitation of minors.

The arrest of the state psychologist prompted a review of more than 100 cases in which he had opined that sex offenders were dangerous and should be civilly committed, and an appeal before the North Dakota Supreme Court.

An interesting but possible unanswerable question is whether Belanger's work in the field somehow triggered his interest in child pornography.

The Associated Press story is here.

Prior blog stories on this case:

• Ripple effects of psychologist's porn addiction: Sex offenders to get new trials (July 20, 2008)
• Another forensic psychology sex scandal (December 9, 2007)

Mental illness: The death penalty frontier

With juveniles and the mentally retarded off the list of those eligible to be executed, severe mental illness looms as the "next frontier" of death penalty jurisprudence, asserts Bruce J. Winick, therapeutic jurisprudence scholar and a law professor at the University of Miami School of Law:

The Supreme Court's 2002 decision in Atkins v. Virginia and 2005 decision in Roper v. Simmons marked a significant new direction in Eighth Amendment jurisprudence. This Article explores the Court's emerging conception of proportionality under the Eighth Amendment, which also is reflected in its 2008 decision in Kennedy v. Louisiana. The Article analyzes the application of this emerging approach in the context of severe mental illness. It argues that the Court can extend Atkins and Roper to severe mental illness even in the absence of a legislative trend away from using the death penalty in this context. The strong parallels between severe mental illness at the time of the offense and mental retardation and juvenile status make such an extension of the Eighth Amendment appropriate.

Severe mental illness would not justify a categorical exemption from the death penalty; rather, a determination would need to be made on a case-by-case basis. The major mental disorders, like schizophrenia, major depression, and bipolar disorder, could qualify in appropriate cases, but not antisocial personality disorder, pedophilia, and voluntary intoxication. The Article discusses the functional standard that should be used in this context, and proposes that the determination be made by the trial judge on a pretrial motion rather than by the capital jury at the penalty phase. Future implications of the Court's emerging approach also are examined.

A pdf of the full paper is available for online download here.

Hat tip: Kirk Witherspoon

Insanity verdict for soldier with PTSD

Case heralded as landmark for traumatized veterans

Photos: Sargent Binkley before and after
In a potentially landmark case, a jury in the San Francisco Bay Area has acquitted a former Army captain who used a 9mm handgun to rob a pharmacy because he was addicted to painkillers.

The Santa Clara County jury found West Point graduate Sargent Binkley not guilty by reason of insanity after hearing testimony that he suffered from post-traumatic stress disorder as a result of his military experiences in Bosnia and Honduras. Binkley is still awaiting trial for a similar robbery in nearby San Mateo County.

Armed robbers are rarely found insane when their crimes appear rational, goal-directed, and premeditated. Additionally, California law does not allow for an insanity verdict based on addiction alone.

The defense argued that Binkley was traumatized by two events -- guarding a mass grave in Bosnia and shooting a teenager during a Honduran drug raid. His father testified that he became addicted to morphine-based painkillers after dislocating his hip in Honduras while running away from an alcohol-fueled fight over a woman.

The trial featured dueling psychiatric experts who agreed that Binkley suffers from PTSD, but disagreed on whether his symptoms were of sufficient magnitude as to render him insane, or incapable of knowing right from wrong at the time of the robberies.

Dr. Jeff Gould, originally appointed by the court in adjacent San Mateo County, testified for the prosecution that Binkley's PTSD did affect his judgment but did not render him insane.

Dr. Kenneth Seeman testified for the defense that Binkley manifested symptoms of psychosis, depression, suicidality, and anxiety in addition to PTSD and was incapable of knowing right from wrong.

Prosecutor Deborah Medved challenged Seeman on why he did not render any of these diagnoses in his original report, written a year prior to testimony. In his written report, according to news reports, Seeman opined that Binkley's insanity was due to his drug addiction. In California, addiction is barred as a basis for the legal defense of insanity. Seeman responded to the prosecutor’s challenge by saying his diagnoses had evolved over the course of his two subsequent evaluation sessions with Binkley.

In another unusual twist suggesting that the jury may have been motivated at least in part by sympathy for the defendant, the pharmacist whom Binkley robbed of Percocet testified for the defense.

The case has been the subject of web sites and petition drives pleading for leniency due to Binkley's status as a veteran. A group of military veterans had regularly attended Binkley’s court hearings. "It's a great day for our veterans who have come back suffering from PTSD to now know they can receive justice," said one, Vietnam veteran and West Point graduate Alan Lubke.

Binkley had faced a minimum term of 12 years in prison. Now, he will undergo a mental health evaluation aimed at determining whether he should be psychiatrically hospitalized or ordered into outpatient treatment.

"I am expecting the doctors will determine he has regained his sanity and is no longer a danger," said defense attorney Chuck Smith. "I hope he will be released relatively soon, like within the next six months."

San Jose Mercury News coverage is here. San Francisco Chronicle coverage is here.

Related resources:

• New York Times (Jan. 1, 2009): Focus on violence by Returning GIs
• Arizona Republic (Jan. 6, 2009): New court sought to aid vets charged with crimes

Report: Online threat to children overblown

The Internet may not be such a dangerous place for children after all.

A task force created by 49 state attorneys general to look into the problem of sexual solicitation of children online has concluded that there really is not a significant problem.

The findings ran counter to popular perceptions of online dangers as reinforced by depictions in the news media like NBC's "To Catch a Predator" series….

The panel, the Internet Safety Technical Task Force, was charged with examining the extent of the threats children face on social networks like MySpace and Facebook, amid widespread fears that adults were using these popular Web sites to deceive and prey on children.

But the report concluded that the problem of bullying among children, both online and offline, poses a far more serious challenge than the sexual solicitation of minors by adults.

So reports Brad Stone in today's New York Times. The news report is here. The full report is here.

Related articles from this blog:

• Experts debunk myths about online youth victimization
• More research debunking Internet predator myth
• Unintended consequences: Is predator hysteria fueling phobia of men?
• 'Predator' caught in its own trappings (Steven Winn essay)
• Cyberbullying verdict raises legal questions

Hat tip: Jane

Stalking: New crime victimization survey

The U.S. Justice Department's Bureau of Justice Statistics has released the largest-ever study of stalking, a category of crime that was not previously included in the National Crime Victimization Survey. According to the study, intended to document the scope and types of stalking, 3.4 million Americans identified themselves as victims of stalking during a recent one-year period. Most stalkers knew their victims, and the most frequent victims -- not surprisingly -- were young women.

Tomorrow’s USA Today has the story.