Psychologist may not testify, judge rules

A Vermont judge has ruled against allowing a psychologist to testify in a child pornography case aginst a prominent local man.

The defense had sought to call Thomas Powell to testify about two issues:

• Whether pamphlets found in the home of Stewart Read were pornographic, and

• Whether the boys pictured in the pamphlets were under the age of 16.

District Judge Karen Carroll said Powell did not have the expertise to testify about either topic. First, he is not a medical doctor so he cannot be an expert on the anatomy of boys, she ruled. Second, it is up to the jury to determine what constitutes pornography, following community standards.

"Why should the jury care what Tom Powell thinks is lewd?" Judge Carroll asked. She said the defense attorney was trying to have Powell "come in and give his opinion" rather than just state facts helpful to the jury.

Although laws vary somewhat by jurisdiction, in general professionals are only allowed to testify as "experts" if they possess specialized knowledge that is beyond the realm of laypeople and will assist the trier of fact (such as a jury or judge) to understand the evidence and/or decide an issue.

On the face of it, the judge’s opinion certainly appears sound.

The full article, in today’s Rutland Herald, is online here.

Study: Easier to implant negative false memories in children

This new study has potential relevance to forensic psychology, and specifically the automatic faith that some accord to statements made by children in criminal and child custody cases:

Children develop false memories for a negative event more readily than they do for a neutral one. Henry Otgaar and colleagues, who made the new finding, said their work has real-world implications for anyone working with child witnesses: "The argument that is sometimes heard in court - i.e. this memory report must be true because it describes such a horrible event - is, as our data show, on shaky grounds."

Seventy-six children aged between seven and nine years were asked to recall details about a true event that had happened to them the previous year (e.g. that their class had to perform a musical), and either a neutral fictitious event (moving classrooms) or a negative fictitious event (being wrongly accused of copying a classmate's work).

The children were asked about the events, true and fictitious, during two interviews held a week apart. If at first the children were unable to recall any further details, they were asked to concentrate and try again. They were also asked to reflect on the events during the week between interviews, to see if they could flesh out any further details.

Altogether, 74 percent of the children developed false memories for the fictitious event - that is, they said they remembered the event and added extra details about what happened. Crucially, those asked to recall the time they were accused of copying a classmate were significantly more likely to develop a false memory than were those asked to recall the time they had to switch classrooms.

The researchers speculated that children might be more prone to developing false memories of negative rather than neutral events because the two kinds of information are stored differently in the brain. "Negative information is more interrelated than neutral material," they explained. "As a result, the presentation of negative information - either true or false - might increase the possibility that other negative materials become activated in memory. This, in turn, could affect the development of a false memory for a negative event."

- From the British Psychological Society's Research Digest

The study, "Children's false memories: Easier to elicit for a negative than for a neutral event," appears in Acta Psychologica, the International Journal of Psychonomics, 128(2), 350-354. The authors are Henry Otgaar, Ingrid Candel, and Harald Merckelbach of Maastricht University, The Netherlands.

Calif. ruling: Release rehabilitated prisoners

California has a long reputation of denying parole to all "lifers," no matter how old, sick, or demonstrably rehabilitated. Republican Gov. Schwarzenegger has been slightly more lenient than his Democrat predecessor, releasing 192 lifers as compared with Gov. Davis' 9 - but that's still only about one percent of the 16,000 who were eligible.

This week, however, for the first time in recent history, the state's high court ruled in favor of a prisoner in a parole case, upholding the July 2007 release of a woman who had fatally shot and stabbed her lover's wife with a potato peeler. The state's parole board had approved the release of Sandra Davis Lawrence four times since 1993, but three governors, including Gov. Arnold Schwarzenegger, overturned the board's decisions. Lawrence spent almost 24 years in prison.


In its 4-3 ruling, the court cited "overwhelming" evidence of Lawrence's rehabilitation while in prison and her suitability for parole, and said parole decisions must be based on evidence of present danger to the public and not merely the brutality of a crime.

The standard, ruled the Court, is as follows:

The Board or the Governor may base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the [Parole] Board or the Governor.

UC Irvine Law Professor Carrie L. Hempel, who represented Lawrence as part of a legal clinic at USC, said the court's decision "sends a clear message to prisoners that . . . if they work really hard to rehabilitate themselves they are going to get some justice."

The Los Angeles Times has in-depth coverage. The full ruling is HERE. Photo credit: L.A. Times.

- Hat tip: Sentencing Law & Policy

Call for Papers: Correctional Mental Health Care and the Law

Behavioral Sciences & the Law announces a forthcoming special issue on Correctional Mental Health Care and the Law, to be edited by Alan R. Felthous, MD. Manuscripts (and especially research reports) on topics related to mental health services in jails and prisons are especially welcome:

Ethical issues in correctional mental health care, including:

• Assessment techniques
• Psychopathological issues relevant to correctional settings
• Therapeutic and rehabilitative approaches for chronic offenders
• Assessment and management of malingering or misuse of services

Legal issues in mental health services, including:

• Patterns and trends of legal actions
• Service changes due to class action lawsuits

Manuscripts should be 20 to 30 doubled-spaced typewritten pages and should comply with the editorial and referencing style of the most recent edition of the Publication Manual of the American Psychological Association or the Harvard Law Review Associations The Bluebook: A Uniform System of Citation (but not both). Manuscripts should be submitted by April 1, 2009.

Opposing expert no safeguard against junk science

That's the conclusion of an interesting study in the current (August) issue of Law & Human Behavior. The researchers, criminology professor Lora Levett from the University of Florida and Margaret Bull Kovera, a prominent social psychologist and expert on eyewitness identification, found the following:

We tested whether an opposing expert is an effective method of educating jurors about scientific validity by manipulating the methodological quality of defense expert testimony and the type of opposing prosecution expert testimony (none, standard, addresses the other expert’s methodology) within the context of a written trial transcript. The presence of opposing expert testimony caused jurors to be skeptical of all expert testimony rather than sensitizing them to flaws in the other expert’s testimony. Jurors rendered more guilty verdicts when they heard opposing expert testimony than when opposing expert testimony was absent, regardless of whether the opposing testimony addressed the methodology of the original expert or the validity of the original expert’s testimony. Thus, contrary to the assumptions in the Supreme Court’s decision in Daubert, opposing expert testimony may not be an effective safeguard against junk science in the courtroom.

More guilty verdicts, hmm? That hasn't been my experience in the cases I've been involved in, but it's an interesting finding nonetheless.

The article is restricted to subscribers and purchasers, but you can get the abstract and a “free preview” (the first page) here.

Juvenile transfer increases recidivism

Department of Justice confirms multiple study findings

OK, if you are reading my blog you probably already know this. But it is news when the U.S. Department of Justice reaches a similar conclusion. And, combined with an editorial response by the New York Times, it could signal a changing of the tide.

An article in the Juvenile Justice Bulletin, "Juvenile transfer laws: An effective deterrent to delinquency?" summarizes a series of large-scale studies comparing juveniles who have been transferred to adult with those who have remained in juvenile courts. Despite using different methodologies and being in different jurisdictions with different types of transfer laws (automatic, prosecutorial, or judicial), the results are "strong" and "compelling" in their consistency, reports Richard E. Redding:

"All of the studies found higher recidivism rates among offenders who had been transferred to criminal court, compared with those who were retained in the juvenile system…. Thus, the extant research provides sound evidence that transferring juvenile offenders to the criminal court does not engender community protection by reducing recidivism. On the contrary, transfer substantially increases recidivism."

The New York Times issued a short but sweet editorial response, "The Case for Juvenile Courts," lambasting current juvenile transfer policies as "a terrible mistake":

This country made a terrible mistake when it began routinely trying youthful offenders as adults. This get-tough approach was supposed to deter crime. But a growing number of government-financed studies have shown that minors prosecuted as adults commit more crimes - and are more likely to become career criminals - than ones processed through juvenile courts.

The value of specialized courts for young people is underscored in a new report from the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. After evaluating the available research, it concludes that transferring juveniles for trial and sentencing to an adult criminal court has increased recidivism, especially among violent offenders, and has led many young people to a permanent life of crime.

The juvenile justice system was one of the great reforms of the Progressive Era. The push to go back to trying children as adults began in the mid-1990s, when state lawmakers fixated on a few, high-profile crimes by young people and - convinced there was a youth crime wave - came up with a politically convenient solution.

Young people who commit serious, violent crimes deserve severe punishment. But reflexively transferring juvenile offenders - many of whom are accused of nonviolent crimes - into the adult system is not making anyone safer. When they are locked up with adults, young people learn criminal behaviors. They are also deprived of the counseling and family support that they would likely get in the juvenile system, which is more focused on rehabilitation. And once they are released, their felony convictions make it hard for them to find a job and rebuild their lives.

Nearly every state now has laws that encourage prosecutors to try minors as adults. The recent studies of this approach should lead legislatures to abandon these counterproductive policies.

Hat tip: Grits for Breakfast