Special journal issue on psychology-law available for free!

A special issue of Current Directions in Psychological Science showcasing the latest psychological research applied to the legal system has received enormous interest. As a result, the editors and Sage Publications are making the full contents available free to the public through June 15, 2011. The articles cover a wide range of topics of interest to my readers, including competency, violence risk assessment, profiling, false confessions, eyewitness evidence, and jury decision making. You are encouraged to download these articles for later reading, and to freely share these links with colleagues. 

  FULL CONTENTS - CLICK ON BELOW LINKS TO DOWNLOAD  

Comment From the Editor
Randall W. Engle
 
Editor's Introduction: Special Issue on Psychology and Law
Ronald P. Fisher
 
Resolving the Offender "Profiling Equations" and the Emergence of an Investigative Psychology  
David V. Canter
 
Forensic Interviewing Aids: Do Props Help Children Answer Questions About Touching?
Debra Ann Poole, Maggie Bruck, and Margaret-Ellen Pipe
 
Interviewing Cooperative Witnesses
Ronald P. Fisher, Rebecca Milne, and Ray Bull
 
Current Issues and Advances in Misinformation Research
Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus
 
Eyewitness Identification
Neil Brewer and Gary L. Wells
 
Outsmarting the Liars: Toward a Cognitive Lie Detection Approach
Aldert Vrij, Pär Anders Granhag, Samantha Mann, and Sharon Leal
 
Suspect Interviews and False Confessions
Gisli H. Gudjonsson and John Pearse
 
Current Directions in Violence Risk Assessment
Jennifer L. Skeem and John Monahan
 
Future Directions in the Restoration of Competency to Stand Trial  
Patricia A. Zapf and Ronald Roesch
 
The Utility of Scientific Jury Selection: Still Murky After 30 Years
Joel D. Lieberman
 
Expert Psychological Testimony  
Brian L. Cutler and Margaret Bull Kovera
 
The Psychology of Trial Judging  
Neil Vidmar
 
Jury Decision Making: Implications For and From Psychology
Brian H. Bornstein and Edie Greene

Australian man spends decade in prison without trial

Mental competency laws are designed to protect people who are accused of crimes from being subjected to legal prosecution if they cannot understand the proceedings or rationally assist in their defense. But some offenders are spending more time behind bars after a finding of unfitness to stand trial than if they had been tried and convicted.

Marlon Noble and supporter (Photo credit ABC News)

In Western Australia, the case of one such man is making headlines. Marlon Noble has spent 10 years behind bars after being accused of sexually assaulting two girls. He is mentally impaired from a childhood bout of meningitis.

"If he has been tried and found guilty he would never ever been sentenced to the length of time," said longtime supporter Ida Curtois, a retired social worker.

He is one of 29 people in West Australian jails who have never been found innocent or guilty.

If he has been tried and found guilty he would never ever been sentenced to the length of time.

-- Ida Curtois            

But in an unusual twist, the two alleged victims are now coming forward to clear his name. Since Noble never had a court hearing on the allegations, the case against him was never tested.

If Noble is released, his supporters say they will continue lobbying until all accused people being held indefinitely due to mental disabilities are given other options.

Incompetent defendants also detained indefinitely in U.S.


Most forensic psychologists in the United States can tell you about Theon Jackson. A "mentally defective deaf mute with a mental level of a pre-school child," Jackson could neither read nor write and was not proficient in sign language. Evaluators called his prognosis for attaining competency to stand trial "dim." Taking the case up to the U.S. Supreme Court, his attorneys argued that he was effectively getting a life sentence for two street robberies that netted a grand total of nine dollars.

In a landmark ruling in 1972, the high court agreed, ruling that an accused person who is found incompetent to stand trial cannot be held longer than "the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future."

If it is determined that the individual will not become competent, "then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant."

In the current era of the sexually violent predator, however, incompetency statutes have made it easier to civilly commit accused individuals whose cases were never proven in criminal court.

In New York State, for example, which has just begun implementation of a new civil detention scheme for sex offenders, the government argued that since civil commitment is a civil proceeding, they should not have to prove their cases beyond a reasonable doubt as they would have to in a criminal trial. Instead, they argued that the standard of proof should be the lower "clear and convincing evidence" standard (sometimes equated to a level of certitude of about 75% as opposed to 95-99% for the beyond a reasonable doubt standard).

Late last month, U.S. District Judge Deborah A. Batts upheld a challenge to that position, declaring that despite the ostensibly "civil" nature of preventive detention, its consequences are too onerous to allow for a lowered standard of proof:

Here, the risk of an erroneous deprivation is high…. Those committed as "sex offenders" under Article 10 are housed in a secure psychiatric facility and segregated from those who are not "sex offenders." After release from confinement, those labeled "sex offenders" are subjected a regimen of "strict and intensive supervision and treatment," which may include but need not be limited to, electronic monitoring or global positioning satellite tracking for an appropriate period of time, polygraph monitoring, specification of residence or type of residence, [and] prohibition of contact with identified past orpotential victims. Given the attendant stigma and significant liberty infringements that result from application of the label "sex offender" under Article 10, the consequences of an erroneous application of that label are severe.

The legal challenge was brought by the state's Mental Hygiene Legal Service, which provides legal service to psychiatric patients, including at least 22 pretrial defendants who -- like Mr. Noble in Western Australia -- have been found incompetent to stand trial on sex charges.

"Cruel and unusual": Sex offender seeks refuge in Canada

The autobiographical romance "Summer Of '42" depicts a coming-of-age relationship between 15-year-old Hermie and an older married woman. By the time "Dorothy" vanishes from his Nantucket vacation community, Hermie has matured from boy to man.


How much has changed in the 40 years since that movie was made. Today, rather than disappearing for parts unknown, Dorothy would be shackled and riding the bus to the nearest women's penitentiary.


But is it fair to sentence a woman to 30 years in prison for a consensual relationship with a willing teenage boy?

That is the question confronting Canadian authorities in the case of a Florida woman who is seeking refugee status in Saskatchewan. Denise Harvey fled the United States with her husband after she was sentenced to a 30-year prison term for a consensual relationship with her son's 16-year-old friend.

Denise Harvey (photo credit TC Palm)

In Canada, the age of consent is 16 so her conduct would not have been criminal. Saskatchewan authorities have not extradited Harvey because Canada does not extradite people unless the conduct is a crime in both countries. In appealing to the Canadian government for refugee status, Harvey claims her sentence amounts to cruel and unusual punishment, forbidden by the Eighth Amendment to the U.S. Constitution.

More than 10 percent of the residents of her home community of Vero Beach, Florida agree that her sentence was too extreme. They signed a petition demanding that Florida's governor pardon her.

"She didn’t get any justice down here," said petition sponsor George Sigler, a flight trainer. "She's a nice, soft-spoken woman who I believe made a mistake but that doesn't mean she should go to jail for 30 years. No one in their right mind believes a 16-year-old wasn't a willing participant."

Harvey rejected an 11-year plea bargain offer and went to trial. The teen testified that the two flirted and had a long kiss in a car before engaging in brief sexual interludes at his home and elsewhere. Harvey did not testify, but her attorney told jurors the boy stalked her after she rejected his advances. The jury heard a 20-minute recording surreptitiously recorded by police with the boy's cooperation, in which the two discussed what to do if their sexual encounters were disclosed.

After Harvey's conviction on five counts, prosecutors urged the lengthy sentence because she continued to deny wrongdoing. She fled after losing her appeal to the Florida Supreme Court.

With the case now making international headlines, the question becomes whether this is the most sensible face for a world leader to portray to the rest of the world.

The Toronto Star and the Treasure Coast Palm have additional news coverage. 

Feed that hungry judge!

Photo credit: vistavision (Creative Commons)

Attorneys: If you want your client released from jail, make sure the judge just had a bite to eat.

That is the take-home message from a new study of experienced judges in Israel. Judges were much more likely to grant parole right after they had a lunch or snack break:

The team studied more than 1,000 parole decisions made by eight experienced judges in Israel over 50 days in a ten-month period. After a snack or lunch break, 65 percent of cases were granted parole. The rate of favorable rulings then fell gradually, sometimes [to] as low as zero, within each decision session and would return to 65 percent after a break.

Jonathan Levav, a professor at Columbia Business School who co-authored the study, said the more rulings a judge makes, the greater the tendency to “rule in favor of the status quo,” but a snack break can interrupt that tendency.

The current study left unsettled the issue of whether it was the food itself or the rest period that came with it that improved the judges' dispositions toward the hopeful convicts. Previous research has shown that both glucose and mental breaks can restore mental functioning.

The study adds to a growing body of evidence on psychological bias in judicial decision-making.

• The study, "Extraneous factors in judicial decisions" by Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, was just published online by the Proceedings of the National Academy of Sciences. A press release with additional information on the study and its authors is HERE.

"Jurors Gone Wild": Blogging, texting, tweeting in court

On his blog, "Juror No. 7" portrayed the defense lawyer as "whacked out" and having a "Columbo detective-style of acting stupid." He complained about the court's long breaks and likened court staff to "Caltrans freeway workers" who always seem to be "picnicking alongside the freeway." … After complaining about the length of the 19-day trial, he told his readers that he had volunteered to be foreman to "expedite matters." During deliberations, he used his cell phone camera to photograph the murder weapon -- a 15-inch saw-toothed knife -- and posted the image on his blog.

Although an appellate court upheld the defendant's conviction, finding Juror No. 7’s conduct harmless, appellate attorney Linda C. Rush disagreed:

"The problem with his blog was, the responses he got were affirming his cynical attitude toward the judge and the process. He created an audience, and during deliberation he was playing to an audience that other jurors didn't even know was there."

Juror antics like this are no longer unusual, according to an article in the current issue of California Lawyer magazine. Judges and attorneys are finding themselves struggling with "how to protect a defendant's Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings," writes Pamela MacLean:

Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors' Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. "That's how a lot of jurors have been caught," she says.

Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel.

But how much monitoring is too much? At what point will jurors begin to feel like criminal suspects and balk at serving altogether? And is all this much ado about nothing?

The full California Lawyer article is online HERE.

Related post: Blogging jurors (Nov. 26, 2008)

U.S. high court restricts federal death penalty appeals

In a 5-4 decision, the U.S. Supreme Court ruled this week that federal habeas appeals cannot consider new evidence, but must limit themselves to information already presented at the state court level. The majority opinion, written by Judge Clarence Thomas, will severely restrict federal petitions in capital cases.

The case involved Scott Pinholster of California, convicted and sentenced to death in 1984 for the robbery-murder of a local drug dealer. The only witness to testify for the defense during the penalty deliberations was Pinholster's mother, who testified that he was "a perfect gentleman at home."

Pinholster pursued his federal habeas claim after losing two appeals to the California Supreme Court, in which he argued that his court-appointed lawyer (later disbarred) had failed to present mitigating evidence during the penalty phase of his trial. Pinholster suffered severe abuse and at least two head injuries as a child; he was institutionalized for much of his adult life and there were some indications of a psychiatric disorder.

The crux of Justice Thomas's message is, "Who cares?" If errors are made during a death penalty trial, they are harmless. That is, they don't change the bottom line. Jurors would have voted for death even if they heard additional mitigating evidence, given the weight of the aggravating evidence against these bad hombres.

That's a fiction, of course. A skillful trial attorney who presents a compelling narrative of a defendant's life can often win a life-without-parole verdict (or negotiate a plea deal), even when faced with an egregious crime. Judy Clarke, Jared Loughner's attorney, is one such lawyer. Contrast her with some of the deadbeat lawyers who dine at the public trough, billing the government to represent capital clients while doing virtually no investigation and presenting little in the way of mitigating evidence at the penalty phase of the trial.

In a lengthy dissent, Justice Sonia Sotomayor (joined in part by Justices Elena Kagan and Ruth Bader Ginsburg) lamented that federal judges must now "turn a blind eye" to such miscarriages of justice, even when they result in "harsh" outcomes. "Some habeas petitioners are unable to develop the factual basis of their claims in state court through no fault of their own," she noted.

Commenting at the Law and Biosciences Digest blog, Stanford Law School visiting professor Nita Farahany portrays the case as a virtual death knell for federal claims of ineffective assistance in capital cases:

After [this] major decision … all bets are off on the likely success of claims for ineffective assistance of counsel for failure to introduce mitigating brain evidence at trial. The case may have such broad implications that the double-edged rhetoric about brain damage evidence in the majority opinion is of minor interest by comparison…. A popular claim for ineffective assistance of counsel is failure to introduce particular mitigating evidence at trial. If [federal review] is limited to the record before the state court, then the days of new evidentiary hearings on federal habeas review for ineffective assistance of counsel cases is numbered or over.

The case is the latest stemming from the Antiterrorism and Effective Death Penalty Act of 1996, §2254, which restricts the power of federal courts to grant habeas relief to state prisoners.

• The Los Angeles Times has more coverage of the case, Cullen v. Pinholster.
• SCOTUS Blog has in-depth analysis of the case (HERE). 
• Fair and Unbalanced (a California capital case litigator) has a brief critical reaction (HERE).