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The usual suspects: Unintuitive findings about the medium used in lineups

Contrary to popular belief, live lineups are not superior to video and photo lineups; however, more research is needed for a clear policy recommendation. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 307–325

Eyewitness Identification: Live, Photo, and Video Lineups

Authors

Ryan J. Fitzgerald, University of Portsmouth
Heather L. Price, Thompson Rivers University
Tim Valentine, Goldsmiths, University of London

Abstract

The medium used to present lineup members for eyewitness identification varies according to the location of the criminal investigation. Although in some jurisdictions live lineups remain the default procedure, elsewhere this practice has been replaced with photo or video lineups. This divergence leads to two possibilities: Either some jurisdictions are not using the lineup medium that best facilitates accurate eyewitness identification or the lineup medium has no bearing on the accuracy of eyewitness identification. Photo and video lineups are the more practical options, but proponents of live lineups believe witnesses make better identification decisions when the lineup members are physically present. Here, the authors argue against this live superiority hypothesis. To be superior in practice, the benefits of live presentation would have to be substantial enough to overcome the inherent difficulties of organizing and administering a live lineup. The review of the literature suggests that even in experimental settings, where these difficulties can be minimized, it is not clear that live lineups are superior. The authors conclude that live lineups are rarely the best option in practice and encourage further research to establish which nonlive medium provides the best balance between probative value and practical utility.

Keywords

photo lineup, video lineup, live lineup, corporeal lineup, identity parade

Summary of the Research

“There seems to be a conflict— or at least a perceived conflict—between choosing the lineup medium that best facilitates accurate eyewitness identification and choosing the lineup medium that is most practical to construct and administer. Unlike live lineups, which require the lineup members (and other relevant parties) to be physically present for the identification procedure, photo and video lineups can be conveniently constructed by recording an image of the suspect and then choosing fillers from a repository of similarly recorded images. Live lineups are nevertheless preferred in some jurisdictions, which seems to be the consequence of a live superiority hypothesis: The belief that live presentation of lineup members yields the best eyewitness identification outcomes. There are theoretical grounds to predict that an eyewitness would fare best at a live lineup, where the lineup members are observed in their entirety and can even be seen walking or talking. Compare this to a photo lineup, normally composed of static mugshots, and the notion of live superiority seems all the more plausible. Even video lineups, as conventionally practiced, only show the lineup members from the shoulders up, neutrally posed, turning from side to side. To make the right decision, a witness might need access to cues available only at a live lineup. Nevertheless, in spite of its appeal to intuition, we have reservations about the notion of live superiority.” (pp. 307–308)

“We are confident that the live superiority hypothesis exists, but doubtful that it is true. Our review of five countries shows that all either once had or still have policies suggestive of live superiority. But our review of the research literature reveals that empirical tests of the hypothesis are scarce. And from the small corpus of experiments available to review, we find no strong indication that live presentation improves lineup performance. What we do find, however, are numerous factors that could compromise the reliability of eyewitness identification from live lineups.” (p. 308)

England and Wales: “In recent years, video lineups have become the preferred procedure in England and Wales. Police forces now have access to continually growing databases of videos depicting people who have volunteered to be recorded as fillers. […] Current guidelines specify that a suspect should normally appear in a video lineup, but a live lineup may be administered if a video lineup would be impractical. Although photographs may be presented at the detection phase, this is not advised at the evidentiary phase if the suspect is available for a video or live lineup.” (p. 308)

United States: “In the United States, eyewitness identification policies have been conspicuously neutral on the lineup medium. American guidelines typically include separate provisions for live and photo lineups, with no hint at a preference between the two. […] In a nationally representative survey of U.S. police agencies, 94% reported use of photo lineups and only 21% reported use of live lineups. […] At the national level, photo lineups are likely to remain the predominant medium. […] As long as photo lineups continue to be admissible in U.S. courts, it seems only a matter of time before all police agencies in the country discontinue the use of live lineups and rid themselves of the hassle of finding fillers to physically attend the identification procedure.” (pp. 308–309)

Canada: “Photo identification has become the most widely used lineup method in Canada. Surveys show that Canadian police agencies from across the country all use photo lineups, a practice enabled by the admissibility of photo lineup evidence in Canadian courts. […] To our knowledge, video lineups have not been considered for use in Canada.” (p. 309)

Australia: “Australia is unique in that live lineups are preferred in policy, but photo lineups are common in practice. The Evidence Act, 1995 states that lineups should be presented live, provided that (a) the suspect is in police custody at the time of the identification procedure and (b) the suspect does not waive their right to participate in a live lineup. […] The Act makes no reference to video lineups but advises that photo lineups should be inadmissible unless a suspect is unwilling to participate in a live lineup, the suspect’s appearance has changed since the offense, or it would not be “reasonable” to hold a live lineup. To assess whether it would be reasonable, the Act permits consideration of the availability of fillers, the severity of the offense, and the importance of the identification to the case. These contingencies may partly explain the divergence between policy and practice in Australia. Another factor is that suspects are explicitly instructed that they can refuse a live lineup and request a photo lineup instead.” (p. 309)

South Africa: “Although photo lineup evidence has been admitted in South African courts, live lineups remain the common practice. […] The argument is not that photo lineup evidence should be excluded in all circumstances, but rather that live lineups are the better option and that evidence from photo lineups, if presented at trial, should be treated with caution and skepticism.” (p. 310)

Experimental research, Live Versus Photo/Video: “Live lineups are a rarity in eyewitness dentification experiments. Much like the trend toward nonlive procedures in criminal cases, eyewitness scientists have relied almost exclusively on photo lineups (though video lineups are becoming increasingly common, particularly in U.K. research). The paucity of experimental research presents a challenge for the live superiority hypothesis; even if every experimental result supported it, the evidence would not be compelling. […] The experimental literature lends no empirical support for the live superiority hypothesis. If anything, the data converge on the conclusion that witnesses are less likely to identify any of the lineup members if they are observed in person than if they are viewed with videos or photos. Keep in mind, however, that the small number of empirical comparisons involving live lineups limits what can be inferred from this literature.” (pp. 310, 313)

Experimental research, Photo Versus Video: “In our review of empirical comparisons between photo and video lineups, we found some indicators of a benefit for video lineups, but such experiments were exceptions rather than the rule. Further, none of the experiments favoring video lineups had the sample size needed for confidence in the findings. […] In sum, the empirical literature provides no compelling evidence in favor of either photo or video lineups.” (p. 316)

“We can draw three main conclusions from this review. First, international practices and preferences regarding the identification medium are anything but uniform. […] Second, based on the current state of knowledge, the live superiority hypothesis at present is merely a belief—not a fact. The experimental literature provides no clear direction on which medium, if any, is inherently better than the others. Ignoring the obvious practical constraints of organizing a live lineup, we considered whether live identification tests would be superior to nonlive identification tests if all external factors could be neutralized. In spite of our efforts to be as charitable as possible to the live superiority hypothesis, we found little reason to support it. The empirical evidence is inconclusive, and most of the theoretical mechanisms that could be considered consistent with live lineup superiority, such as availability of body and motion cues, could be incorporated into modifications of current video lineup practices. […] Third, a policy preference for live lineups is untenable, due to (a) the lack of empirical support for the live superiority hypothesis; (b) the difficulties of administering a fair live lineup; and (c) the inherent practical advantages of nonlive procedures. Photo and video lineups are more practical, fairer, and seem to be no less reliable than live lineups. Live lineups are hard to organize and difficult to control. The inability to recruit suitable fillers or to prevent any of the lineup players from emitting unwanted cues could easily compromise the fairness of a live lineup. And the proposed safeguards that have been associated with live lineups (right to observe, rogues’ gallery, and transference of familiarity) do not hold up to scrutiny. Contrary to the live superiority hypothesis, we identified several real-world confounds associated with live lineups that could reduce their reliability.” (pp. 320–321)

Translating Research into Practice

“In the absence of clear empirical guidance on which medium best facilitates eyewitness identification, police might choose to adopt the most practical medium that the courts in their jurisdiction will admit as evidence. Live lineups, which require witnesses, suspects, fillers, legal representatives, and police personnel to all appear in the same place at the same time, are unquestionably the least practical option.” (p. 316)

“From an investigative perspective, the appeal of photo and video lineups requires no stretch of the imagination. The ability to create and electronically store vast databases of photos and videos transforms the filler recruitment process from hunting for physical people who resemble the suspect (or the culprit’s description) to the mere act of browsing through a computer database filled with images. Once an image of the suspect has been obtained, the primary reason for live lineup cancellations—suspects not showing up—is no longer a concern. Witnesses are also more likely to appear if they do not have to be in the same proximity as the perpetrator. Photo or video lineups can also be presented with a computer, which could be used to deliver clear and consistent instructions, record the witness decision automatically, and visually represent response options that might not be obvious to the witness, such as “not here” or “not sure”” (p. 316)

“In spite of their practicality, the use of nonlive lineups in some jurisdictions runs the risk that the evidence will be given less weight (or even excluded) at trial. Photo lineups are widely used in Canada and the United States because they are practical and judges in these jurisdictions have a history of accepting them as legitimate evidence. But in other jurisdictions, judges consider photo identification to be inferior to live identification. This preference for live lineups has been primarily supported by two overarching claims: (a) identifications from live lineups are more reliable than from nonlive lineups, and (b) live lineups are fairer than nonlive lineups.” (p. 316)

“There are intuitive reasons to believe that, all else equal, live presentation would be the best method to facilitate an accurate eyewitness identification. […] If a crime has been witnessed live, benefits may come from an identification procedure that is also administered live. When the cognitive processes at encoding and retrieval overlap, transfer appropriate processing is theorized to occur. From this perspective, the processes engaged while witnessing a live event would be more likely to be reengaged at a live lineup than at a photo or video lineup. Matching the test medium with the event medium would also conform to the encoding specificity principle, which emphasizes the correspondence between the encoding and retrieval contexts. […] Identification success should be enhanced by the availability of encoded details at test. The availability of dynamic cues, in particular, may increase through live presentation of the lineup members. […] Another potential benefit of live lineups is that the lineup members’ bodies are normally in view, whereas in photo and video lineups usually only the head and shoulders are visible. […] Although the points discussed in this section may provide ammunition for believers in the live superiority hypothesis, we nevertheless remain skeptical of its application to lineups in practice. In addition to the absence of experimental data in support of live lineup superiority, there have been few experimental tests even on the broader issue of live identification superiority. […] Even when issues of fairness or practicality are not considered, the live superiority hypothesis has few legs to stand on. And when these factors are taken into account, the case for live lineups over other procedures falls apart.” (p. 317)

“Live lineups have been frequently cited as the fairest identification procedure. […] We believe that photo and video lineups are at minimum as fair as live lineups (and more likely, fairer). […] Live lineups do not ensure the critical aspects of the testing conditions will be observed. The only meaningful difference between lineup medium types from a right to observe standpoint is that the suspect is present at a live lineup. However, witnesses are commonly permitted to make the identification from behind a one-way screen. And even if the suspect is able to observe the identification, it would be naïve to expect a nonexpert to know about and detect the myriad of factors that could compromise the procedure. From our perspective, the right to observe would be best served by video-recording the lineup procedure whatever the medium—and preserving the conduct of the identification proceeding […] The rogues’ gallery effect is another idea that may have been a legitimate concern in the past, but seems no longer relevant in the digital age. Rogues gallery presumes that if witnesses know that police possess a photograph of the suspect, they will infer that the suspect has a criminal record. But photographs can now be obtained in a variety of ways. […] the rogues’ gallery can be avoided with easily implemented safeguards and the use of photographs in itself need not imply that the lineup members have criminal pasts.” (p. 318)

“The last of the three arguments rests on the assumption that live identifications are inherently superior to photo identifications. Transference of familiarity, which occurs when the memory of a person identified at a photo identification procedure replaces the memory of the criminal observed at the witnessed event, is a legitimate concern associated with repeated identification procedures. Not much is gained from a live lineup if a photo identification has already been conducted because at the second lineup it is never clear whether the suspect was remembered from the witnessed event or from the first lineup. If live identifications were more reliable than photo identifications, there could be an argument against administering a photo lineup because it would taint the witness’s memory and ruin the opportunity to obtain evidence via the more reliable, live procedure. Here lies the problem: the reliability of live over photo identification has not been established. Without clear evidence of live superiority, transference of familiarity has no relevance to the question of whether photo lineups are a suitable alternative to live lineups.” (pp. 318–319)

“A central concern about the fairness of live lineups is that suspects are likely to emit cues and, contrary to nonlive procedures, there is no opportunity for a second take to prevent the witness from observing these cues. […] With video and photo lineups, lineup administrators have greater control over the behaviors of suspects and fillers. If a filler or suspect emits a cue during a live lineup, there are limitations in what can be done to minimize the cue’s influence on the identification decision. […] The risk of the administrator leaking cues to the eyewitness may also be heighted at a live lineup because simple methods of reducing administrator influence like computer-based administration are more difficult than with photo or video lineups. […] Computer administration can reduce the possibility of influence even further by minimizing the social interaction between the administrator and witness or, in the case of self-administration, eliminating interaction altogether while the images are in view. […] The suitability of fillers is central to the fairness of a lineup. Although common practice in the field is to select fillers who resemble the suspect in physical appearance, researchers have proposed that a fair lineup comprises members who all match the witness description of the culprit. […] Constructing a lineup with implausible fillers has the effect of increasing suspect identifications, regardless of whether the suspect is guilty or innocent. Whether trying to match fillers to the witness description or to the suspect’s appearance, the objective would be more easily met by selecting images from an electronic database than by recruiting locally for a live procedure.” (p. 319)

“Previously we considered whether live identifications might be more reliable than video or photo identifications, all other factors held constant. It is important to be mindful, however, that external factors are not held constant in the field and that in practice the lineup medium is inherently confounded. […] First, live lineups are likely to increase witness stress and anxiety. Victims of violent offenses probably do not ever want to see the perpetrator again, but this is precisely what happens at a live lineup. Even witnesses who were not victimized may find live lineups stressful. […] Although witnesses may feel threatened by the prospect of identifying the perpetrator irrespective of the medium, the thought of a live procedure seems to amplify such concerns. […] The second factor, which also has clear implications for memory performance, is cue consistency. Photo and video images provide a record of the suspect at the time of arrest, which may help to increase the consistency between the cues encoded at the event and those available at retrieval. Suspects who are released from custody have the opportunity to make an intentional appearance change prior to appearing at a live lineup. […] Third, live lineups are particularly susceptible to long delays. […] Archival studies suggest that the majority of nonlive lineups occur within a month of the event, but this rarely happens for live lineups. […] Numerous characteristics of live lineups make them difficult to organize quickly: fillers must be recruited to appear in person; a time when all the relevant players are available must be scheduled; and everyone must show up. Timely identification procedures are desirable not only for the efficiency of the justice system, but also because reliability is increased if witnesses are tested when their memory of the perpetrator is fresh.” (p. 320)

“We recommend against live lineups, but believe more evidence is needed before a preference between photo and video lineups can be established. Photo lineups are the most practical option, but the availability of dynamic information in video lineups may improve identification outcomes. More research is needed to determine whether video lineups lead to outcome benefits that justify their practical costs.” (p. 321)

Other Interesting Tidbits for Researchers and Clinicians

“One avenue for future research would be to modify existing video techniques to maximize their potential benefits. […] There have long been calls to test video lineups that show the entire body and provide additional cues of gait or voice. […] Virtual or augmented reality may be another technological advance with a potential application for lineups. Although the realism of immersive environments could be problematic for victims of traumatic events, some witnesses could benefit from the increased viewing angles and physical context reinstatement that would be possible. Another consideration is whether ethnicity plays any role in lineup medium effects. For example, image quality and the availability of dynamic cues associated with a medium may be more critical when the witness and lineup members have different ethnic backgrounds.” (p. 321)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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ADHD Symptoms and Antisocial Traits Associated with Higher No-Show Rates

Sixty male patients with ADHD who received treatment in a Dutch forensic outpatient center completed the Adult Self-Report on disorder-specific symptoms and general psychosocial well-being. Results of the analyses reflect that patients with high no-show rates (15-45% missed appointments) had more ADHD symptoms compared to patients with low no-show rates (0-14.9% missed appointments). Furthermore, rule-breaking, externalizing problems and somatic problems were associated with higher no-show rates while anxiety problems were associated with lower no-show rates. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 17, No. 1, 62-71

Disorder-Specific Symptoms and Psychosocial Well-Being in Relation to No-Show Rates in Forensic ADHD Patients

Authors

Tessa Stoel, Forensic outpatient clinic het Dok (Fivoor), Department ADHD and related disorders, Rotterdam, The Netherlands
Jenny A.B. M. Houtepen, Department of Developmental Psychology, Tilburg University, The Netherlands
Rosalind van der Lem, Forensic outpatient clinic het Dok (Fivoor), Department ADHD and related disorders, Rotterdam, The Netherlands
Stefan Bogaerts, Department of Developmental Psychology, Tilburg University, The Netherlands
Jelle J. Sijtsema, Department of Developmental Psychology, Tilburg University, The Netherlands

Abstract

No-show rates in forensic psychiatry are related to higher recidivism risk and financial costs in mental health care, yet little is known about risk factors for high no-show rates. In this study, the extent to which disorder specific symptoms and psychosocial well-being are related to no-show rates in forensic patients with ADHD was examined. Sixty male patients with ADHD (M age = 35.9, SD = 8.6) who received treatment in a Dutch forensic outpatient center completed the Adult Self-Report on disorder-specific symptoms and general psychosocial well-being. Data on no-show rates and background characteristics were obtained via electronic patient files. Independent sample t-tests showed a trend in which patients with high no-show rates (15–45% missed appointments) had more ADHD symptoms compared to patients with low no-show rates (0–14.9% missed appointments). Furthermore, multivariate regression analyses showed that rule breaking, externalizing problems and somatic problems were associated with higher no-show rates, whereas anxiety problems were associated with lower no-show rates. Results suggest that no-show rates in forensic patients with ADHD are related to specific psychopathological symptoms. This knowledge can be used to prevent no-show in forensic psychiatric treatment.

Keywords

No-show, adult ADHD, forensic psychiatry, disorder-specific symptoms, psychosocial well-being

Summary of the Research

“Outpatient services can provide an efficient form of health care, but the high rates of missed outpatient appointments (i.e., no shows) result in inefficient use of these services…Besides economic and financial consequences, high rates of no-shows in mental health care are related to poorer treatment outcomes of patients…In the current study, no-show rates among forensic outpatients will be addressed. Mental health treatment in forensic psychiatric outpatient clinics is often a compulsory part of a criminal sentence. Therefore, low intrinsic treatment motivation and a negative attitude toward professional help may increase risk for higher no-show rates in these patients…This is problematic because untreated psychopathological problems due to missed appointments can result in higher risk of recidivism…” (p.61).

“Risk for no-shows is particularly likely for forensic patients who have a diagnosis of Attention-Deficit/Hyperactivity Disorder (ADHD)…Research on treatment compliance in patients with ADHD is scarce, but researchers stress that adequate treatment of ADHD in forensic psychiatric institutions is needed to decrease the risk of reoffending. ADHD in (forensic) psychiatric patients may affect treatment adherence for two reasons. First, patients with ADHD may experience difficulties with compliance to treatment in general, due to the core problems of ADHD, such as impulsivity, attention problems, forgetfulness…Second, non-forensic patients with ADHD are at risk for no-show due to the high prevalence of comorbid psychiatric problems, which in turn are associated with treatment attrition…” (p.61-62).

“We hypothesized that higher rates of no-shows are associated with more disorder-specific symptoms, including severity of ADHD symptoms, substance use, and (antisocial) personality problems. Furthermore, we hypothesized that higher rates of no-shows are associated with lower psychosocial well-being…Participants were recruited from a Dutch forensic psychiatric outpatient clinic located in four cities in…The Netherlands…About half of the participants were diagnosed with ADHD at the clinic (N=34), whereas the other participants received their ADHD diagnosis before intake at another mental health institution (N=26)” (p.63-64).

“In the current study, participants missed on average 16.2% of their appointments and this no-show rate was related to several psychopathological factors. Specifically, rule-breaking, antisocial personality, and somatic problems were associated with higher no-show rates, whereas anxiety problems were associated with lower no-show rates. These findings suggest that rates of no-shows during forensic psychiatric treatment are related to antisocial behavior in daily life, which consist of having difficulties with complying with rules in general…In addition, by comparing patients with high and low levels of no-shows we showed that those with high no-show levels had more ADHD symptoms. However, these findings should be treated with caution…When controlling for multiple testing, this finding was only marginally significant” (p.67).

“This trend in which severity of ADHD symptoms were associated with higher rates of no-shows, corresponds to research showing that ADHD is positively associated to medication non-compliance. It is tempting to speculate that the core symptoms of ADHD (e.g., attentional problems, impulsivity, forgetfulness, and disorganization) affect the ability to achieve long term goals, such as compliance in therapy…Of note, we found that patients with ADHD and high no-show rates more often have comorbid axis I disorders compared to patients with low no-show rates…Our hypothesis that higher rates of no-shows were negatively associated with psychosocial well-being was not supported by the data…Also in contrast to our hypothesis, no relation was found on substance use and rates of no-shows. This is surprising, given that substance abuse is one of the most stable factors associated with treatment non-adherence” (p.68).

Translating Research into Practice

“The current study highlights the importance of accounting for psychopathological factors to explain and potentially reduce no-show rates in forensic patients with ADHD. Efforts to reduce triggers for no-show in patients with externalizing, anxiety, and ADHD problems may, for example, include staying in touch with patients and reminding them about appointments, have a neat clinic organizations, clearly scheduled appointments, consistent staff adherence, and reduced waiting times. Insight into patients’ psychopathological problems may thus generate more awareness in therapists about who is at risk for no-shows” (p.69).

Other Interesting Tidbits for Researchers and Clinicians

“In future studies, it may be particularly important to use prospective study designs, which allow for following patients from the start of their treatment and provide insight into the timing of no-shows. This design would also allow to collect data on medication use in a more controllable manner, which could be an important discriminating factor in explaining rates of no-shows. Moreover, the current findings should be replicated and extended in a larger sample of forensic ADHD psychiatric patients, thereby taking into account whether treatment was received mandatory or voluntarily” (p.69).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and is a second year Masters student at Fairleigh Dickinson University. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

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Managing and Treating individuals who have been found not guilty by reason of insanity

Violence risk assessments did not predict long-term outcomes for insanity acquittees in the community but should be utilized for the development of treatment and management strategies. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 5, 403-412

Reconsidering Risk Assessment With Insanity Acquittees

Authors

Michael J. Vitacco, Augusta University
Elena Balduzzi, Psychiatric Secure Review Board, Portland, Oregon
Kimberly Rideout, Oregon State Hospital, Salem, Oregon
Shelly Banfe and Juliet Britton, Psychiatric Secure Review Board, Portland, Oregon

Abstract

States continue to rely on conditional release (CR) as an effective and cost effective way to manage individuals found not guilty by reason of insanity (NGRI). Research has demonstrated that insanity acquittees returning to the community have low recidivism rates and moderately low revocation rates. This study followed 238 individuals found NGRI in Oregon who were evaluated with the Historical, Clinical, Risk-20 (HCR-20; Webster, Douglas, Eaves, & Hart, 1997) and placed in the community on CR. The majority of individuals on CR (n = 157, 66%) maintained their release throughout the entire follow-up period (between 4 and 9 years), but 81 (33.6%) had their release revoked during the follow up. In considering the efficacy of violence risk assessment in predicting CR outcome with NGRI acquittees, the HCR-20 was mostly unrelated to CR outcome. Only two items from the HCR-20, both from the Risk Management scale (exposure to destabilizers and stress) predicted revocation, but not imminence to CR revocation. This paper reconsiders how risk assessments are utilized with insanity acquittees and provides a roadmap for improving risk assessments with this unique population by relying on risk assessment results to plan effective interventions to reduce the likelihood of revocation and violence.

Keywords

violence risk assessment, insanity acquittees, conditional release

Summary of the Research

“Individuals adjudicated not guilty by reason of insanity (NGRI) are most often committed to inpatient forensic hospitals for a period of evaluation and treatment, with a focus on treating mental illness and reducing future violent and antisocial behavior. In most instances, the goal of inpatient hospitalization is to prepare individuals for a return to their communities. However, individuals found NGRI are not granted unfettered access to the community; instead, they are typically required to participate with several mandated conditions (e.g., medication compliance, abstinence from drugs and alcohol, participate in treatment and/or other structured programming), which is why their return to the community is referred to as conditional release (CR). Failure to meet required conditions, or the commission of a new criminal act, can lead to revocation of CR and a return to a secure forensic hospital or jail” (p. 403).

“The current study evaluates a relatively large sample of individuals on CR from the state of Oregon. Consistent with recent research from a statewide sample in Georgia demonstrating the necessity of proper placement and community treatment for individuals on CR we propose the RM [Risk Management] scale from the HCR-20 will predict CR revocation. Revocation status can also include the commission of a new criminal offense. Further, it is our prediction that the other two HCR-20 scales (i.e., Historical and Clinical) will not be related to CR outcome. Additional research is needed on this subject given inconsistent results across state samples; we are specifically cognizant of the fact that research has been inconsistent on the effectiveness of these scales in predicting revocation with this specialized population. We also hypothesize that the total number of prior criminal charges will predict imminence to revocation. In addition, given that substance use can form the basis for revocation of CR, we predict a substance abuse diagnosis will be related to both revocation and imminence to failure” (p. 406).

“Two metrics are frequently measured when evaluating conditional program outcomes: rates of revocation and commission of new criminal behavior. The results of the current study found a relatively low revocation rate, as 66% of individuals were able to maintain their CR over the entirety of the follow-up period. This statistic is consistent with CR data from other statewide CR programs. Regarding criminal recidivism, only one person was arrested for a new crime, and this was a nonviolent offense. The results of the current study, along with other studies of NGRI patients on CR, stand in stark contrast to the most recent statistics on criminal recidivism generated by the National Institute of Justice (NIJ). NIJ statistics for the entire United States indicate 67.8% of individuals released from prison were rearrested after 3 years and over 75% were rearrested after 5 years. At a state level, data from the Oregon Recidivism Analysis found 48% of those on felony probation were rearrested within 3 years. In sum, although the revocation rate approximates the rearrest rate in Oregon, it remains lower than the recidivism rate” (p. 408-409).

Translating Research into Practice

“In considering why CR may be effective one should consider that studies have linked untreated mental illness with violent behavior, potentially as a result of its inverse relationship with treatment adherence. Conditions of release, which include mandated medication compliance and strict supervision, appear effective at preventing individuals on CR from reoffending. If an individuals’ mental health deteriorates or they begin to engage in substance use, their release can be revoked and they can be returned to a secure mental health facility. CR programs also provide treatment for alcohol and drug use, and substance use has been linked to problematic outcomes. The combination of mandated medication and supervision, which are hallmarks of CR programs, provide some safeguards against criminal behavior, including violence” (p. 409).

“The current findings indicate violence risk assessment results from the HCR-20 have very little association with CR outcome, including both prediction and imminence of revocation, for those individuals on CR. Both the logistic regression and survival analysis yielded nonsignificant results with the HCR-20 scales as the independent variables. Of note, the RM scale just reached significance. Several recent studies have questioned the predictive validity of violence risk assessments in predicting the CR outcomes of NGRI acquittees. Consistent with previous studies, results from the current study suggest that most of the items and scales often used to predict violent behavior have limited ability to predict CR outcome. Nevertheless, the findings from this study do not suggest that risk assessment is irrelevant for patients being considered for CR” (p. 409).

“To the contrary, empirically focused risk assessment should remain at the forefront of treatment, management, and ultimately, play a role in release decisions. Specifically, violence risk assessment should inform risk management practices for individuals found NGRI, including informing interventions in community settings. That said, it may be most efficacious to conduct risk assessments early in the hospitalization process of NGRI commitment such that early identification of risk factors can inform treatment planning tailored toward risk mitigation. Early violence risk assessments provide a baseline for comparing subsequent risk assessments. Evidence of a lack of change or progress on items measuring dynamic risk variables may indicate a need for adjustments in treatment delivery” (p. 409-410).

“In addition, the current results indicate that the majority of CR revocations were due to mental health deterioration or rules infractions. To that end, data from the RM scale may be helpful in guiding release decisions and planning for which treatments are needed in the community. RM items require clinicians to consider potential barriers to successful transitions. In this sample, items measuring exposure to destabilizers and stress both predicted revocation. The RM scale predicted CR outcomes in a statewide sample of forensic patients from Georgia. Community programs that offer intensive case management and assertive community treatment may wish to target relevant risk management factors, such as helping patients better manage the situations causing stress and/or reduce exposure to situations which have been shown to destabilize them” (p. 410).

“Data on imminence of CR revocation provide findings that allow for three insights into CR revocation. First, most revocations occurred relatively early on, indicating that individuals on CR are most at risk for difficulties after they are discharged from a secure inpatient setting. Second, the number of prior criminal offenses predicted earlier revocation, which is consistent with previous research on CR. With regard to this finding, we cannot be certain if the number of offenses and imminence to revocation is a function of being more likely to engage in behaviors that lead to revocation (e.g., substance abuse) or whether a subset of NGRI acquittees may be considered by community providers to be high-risk patients. Any change in mental status or increase in concerning behaviors, even if relatively slight, may trigger a perception that revocation is necessary to reduce the risk
of criminal behavior or violence” (p. 410).

“In summary, data on CR support the notion that current violence risk instruments may be valuable in identifying relevant treatment targets aimed at reducing violence but are less useful in identifying which individuals are likely to be revoked or identifying those most at risk for early revocation. These findings may be related to the nature of violence risk assessment instruments, whose primary purpose is to evaluate factors related to violence, not revocation. In CR samples, including this one, the majority of individuals are revoked for rule violations, not violent or criminal behavior. As such, violence risk measures, like the HCR-20, may not be well suited to predict CR revocation, but may be more appropriate for use in making release decisions” (p. 410).

Other Interesting Tidbits for Researchers and Clinicians

“The decision to revoke an NGRI acquittee’s CR is often the combination of multiple factors, not the least of which are the various individuals involved in setting in motion the process of revocation (e.g., case manager, PSRB liaison). This study did not collect data on the decision-making process. In some cases, the decision-making process which leads to revocation may be highly transparent (e.g., an individual makes overt threats of violence as a result of medication noncompliance and is returned to an inpatient forensic unit) or may be opaque (e.g., case manager believes the individual’s mental
health is deteriorating). Subsequent research could consider the decisions of case managers and the threshold for initiating CR revocation. Very little research has examined factors underlying the revocation process. Research examining the front end of the process has noted that many decision makers do not employ clear and exacting standards for making recommendations of release. As stated by McDermott et al. (2008), part of the difficulty with CR decisions ‘lies in the inherently ambiguous definitions of mental illness and dangerousness, both of which are necessary for the continued confinement of insanity acquittees’ (p. 329). Making these decisions less ambiguous should be a goal of researchers, clinicians, and policymakers” (p. 410-411).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

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Challenging the witness incompetence myth: Forensic interviews with individuals with intellectual disability

Individuals with intellectual disability are able to participate in criminal investigation and testify regarding alleged abuse crimes—however, a forensic interview needs to be informed by a proper evaluation of their skills and adjusted to the developmental needs of the interviewees. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 393–403

NICHD-protocol investigations of individuals with intellectual disability: A descriptive analysis

Authors

Irit Hershkowitz, University of Haifa

Abstract

The current study followed investigative interviews with individuals with mild and moderate intellectual disability (ID) and observed both the types of prompts addressed to them and the nature of their responses. The sample comprised 200 alleged victims, in 4 equal and matched groups: individuals with mild ID and their mental-age (MA) matches, and individuals with moderate ID and their MA matches. All alleged victims were interviewed by trained investigators who followed the protocol of the National Institute of Child Health and Human Development, known to promote developmentally sensitive interviews. A descriptive analysis revealed that individuals with ID were faced with a substantial number of prompts, with recall prompts dominating the interviews. They replied to almost all prompts, addressed substantive issues following over 2/3 of the prompts, and provided new details following 1/3 of the prompts, but they tended to respond at lower rates than did their counterparts. The number of details was generally lower among individuals with ID. However, all but the moderate ID group produced more details following recall than recognition prompts. Performance varied according to the severity of ID, with the mild ID group outperforming the moderate ID group. The findings challenge the notion that individuals with ID cannot participate in criminal investigations or act as witnesses. The data suggest that when abuse is suspected, awareness of their weakness and strengths is likely to promote informed and effective interviewing, which may yield valuable forensic evidence.

Keywords

abuse, eyewitness testimony, intellectual disabilities, forensic interviews

Summary of the Research

“Individuals with intellectual disability (ID) form a vulnerable population at increased risk of abuse and are thus more often required to participate in criminal investigations. However, little is known about the competency of individuals with ID in forensic contexts, although laboratory analogue studies have suggested that they can accurately report events they have experienced. The present study involves the first comparison of actual forensic interviews conducted with alleged victims diagnosed with ID to those conducted with typically developing (TD) alleged victims, matched for mental age (MA).” (p. 393)

“In the eyewitness testimony literature, individuals with mild and moderate ID are characterized by a range of functional problems considered to affect their competency as witnesses. Cognitive impairment is the central diagnostic feature of individuals with ID, thought to compromise their ability to provide meaningful and reliable eyewitness testimony. Deficits in information processing, working memory, and executive control, as well as poorer comprehension of concepts and events, may reduce the amount of information they encode during an event. When engaging in conversation about their experiences, individuals with ID generally show a narrower range of receptive and expressive skills. Receptive skills may be hindered by limitations in attention, information processing resources, and verbal short-term memory, all of which are likely to challenge their understanding and processing of communicative demands. Expressive skills are likely to be affected by less effective retrieval strategies; lower verbal and narrative abilities; and the tendency to please questioners, acquiesce to suggestions, and confirm external information, as well as by failure to understand the consequences of making a statement. Due to these cognitive limitations, many police officers, attorneys, and potential jurors doubt the reliability of individuals with ID and believe they cannot act as competent witnesses. Consequently, allegations are often not investigated, because these cases are less likely to result in successful prosecution and conviction.” (p. 393)

“When allegations do reach the investigation phase, police interviewers tend to act in counterproductive ways, failing to provide individuals with ID with proper conditions for reporting their experiences. Contrary to best practice recommendations, they often do not use free recall prompts, which have been found to encourage production of rich and accurate information. Rather, they tend to use types of questions that are known to compromise memory retrieval. […] Furthermore, interviewers may address individuals with ID with contaminating repeated questions, following which interviewees are likely to change their answers and produce contradictions, both in pretrial investigations and in court.” (pp. 393–394)

“Research findings have clearly shown that individuals with mild ID respond well to recall prompts and can provide equally accurate though less complete information in comparison to TD individuals. Even individuals with moderate ID can provide accurate, yet limited, amounts of information when addressed with recall prompts. Nevertheless, despite the importance of this research, it has involved mostly laboratory analogue procedures, and thus it is not necessarily indicative of performance in real-life investigations. The current study explores the criminal investigation of individuals, both adolescents and adults, with mild and moderate ID who were alleged victims of physical or sexual abuse.” (p. 394)

“The study explored the types of prompts addressed to individuals with ID over the course of their investigation, that is, recall versus recognition prompts, as well as the nature of their responses. The rate of replies in response to interviewers’ prompts, the rate of relevant responses addressing forensic issues, and the rate of responses including new forensic information were observed. In addition, the number of forensically relevant details provided in the average response was analyzed, while examining variation in detail according to the types of prompts. The investigation of the ID groups was compared to that of TD individuals matched for MA (hereafter referred to as TD matches). […] The interviews observed in the current study were conducted by trained investigators specializing in child investigations as well as investigations of individuals with ID. The investigators followed the protocol of the National Institute of Child Health and Human Development (NICHD), known to foster developmentally adapted interviews with TD children.” (p. 395)

“Following research on the NICHD protocol, interviewees with and without ID were expected to be offered more recall prompts rather than recognition ones, both in the transitional phase, aimed to identify target abusive events, and in the substantive phase, designed to explore the events in detail. In addition, all four groups were also expected to be more productive in response to the average recall prompt than to the average recognition one. Informed by previous research on interviewees with mild ID, we expected them to be as responsive (provide replies, informative responses, and responses containing new forensic detail) to the interviewers’ prompts as were their TD matches and to produce a similar number of details. However, the performance of those with moderate ID was expected to decline in comparison to both their TD matches and those with mild ID.” (p. 395)

“The sample consisted of 200 alleged abuse victims in four equal groups: 50 adolescents and adults diagnosed with mild ID (age range = 12–49, M = 20.05) paired with 50 TD matches (TD children of age range over 8 and under 12, M = 9.31) and 50 adolescents and adults diagnosed with moderate ID (age range = 12–58, M = 29.5) paired with 50 TD matches (TD children of age range over 4 and under 8, M = 5.05). All TD children attended regular schools, studied in regular classes, and had no known special needs. The individuals with ID were diagnosed by the Diagnosing Committee of the Ministry of Labor and Welfare (according to the Welfare Law (the treatment of individuals with intellectual and developmental disability), 1969, Israel), following the American Association on Intellectual and Developmental Disabilities (2010) recommendations and based on intellectual functioning and adaptive behavior. All participants (74 male, 126 female) were referred for investigation following suspicions of physical (n = 78) or sexual (n = 122) abuse and made allegations during the investigation. No other inclusion criteria were employed, and the interviews collected were the first ones available during data collection (2008 –2011) to meet the matching criteria.” (p. 395)

“The interviews were conducted in the centers of the Service for Child Investigations and Special Investigations in the four regions of Israel or at the interviewee’s residence. All investigations were performed according to the NICHD Investigative Interview Protocol. […] The NICHD protocol employs investigative practices found to facilitate reliable accounts from children about their experiences. It is fully structured and covers all phases of the investigative interview. In the introductory phase, interviewers introduce themselves, clarify the need to describe events in detail and to tell the truth, and explain the ground rules and expectations. […] In a transitional phase between the presubstantive and the substantive parts of the interview, a series of initially open-ended, nonsuggestive prompts are used to identify the target event(s) to be investigated. […] Once an allegation is made, the free recall phase begins with the main invitation. […] Follow-up open-ended prompts are then recommended, […] as are cued invitations aimed at eliciting uncontaminated accounts of the alleged incident(s) from free-recall memory. […] Only after open-ended questioning has been exhausted do interviewers proceed to directive questions. […] If crucial details are still missing at the end of the interview, interviewers may ask limited option-posing questions. […] Suggestive prompts that communicate what responses are expected […] are strongly discouraged in all phases of the interview. […] Videotape recordings of the interviews were transcribed, and transcriptions were reviewed to ensure their completeness and accuracy.” (p. 396)

“Interviewees with mild ID were as likely as their controls and those with moderate ID to make spontaneous allegations, but interviewees with moderate ID were less likely to make spontaneous allegations than were their controls and required more prompting before they made an allegation. Generally, more recall rather than recognition prompts were provided to all groups, both in the transitional phase and throughout the interview. However, the lower functioning groups were faced with fewer prompts, and specifically fewer recall prompts, in the substantive investigation and responded with lower rates of verbal replies. Both the ID groups and the lower functioning groups provided fewer informative responses in general and fewer responses including new details. They also provided fewer details per prompt and, specifically, fewer details per recall prompt. Recall prompts were typically followed by more details than recognition prompts, although the relative advantage of recall prompting was absent for the ID low-functioning group (moderate ID).” (p. 398)

“In an exploration of the quality of interviewing in the observed sample, the data showed that recall prompts dominated the interviews, both in the transitional phase and in the substantive phase. […] Note that nearly one third of the alleged victims made an allegation spontaneously, with no need for questioning at all (although this proportion was lower for the moderate ID group). Thus, despite some variation, the allegations seem to have been generally raised with relatively appropriate means.” (p. 399)

“When exploring the criminal events, we found that both individuals with and without ID were addressed with a higher proportion of recall than recognition prompts. Recall prompts consisted of over half of all prompts and 75% of all information-request prompts in the substantive part, thereby confirming the relatively high quality of interviewing.” (p. 399)

“In an inspection of the interviewees’ responses in the substantive investigation (regardless of their content), the data illustrated that individuals with ID were able to answer a substantial number of questions seeking diverse types of information. Even individuals with moderate ID were given about 150 prompts on average and replied to almost all of them, indicating that despite their limitations, they showed basic communicative competency.[…] Analysis of the content of responses showed that interviewees with ID not only complied with communicative demands but also seemed to understand and process many of the requests addressed to them, often providing relevant information. Despite some differences from their TD controls, individuals with ID provided relevant and informative responses to over two thirds of the prompts they received.” (p. 399)

“Providing responses that include new forensic details, rather than just repeating previously mentioned information, is a key communicative factor for the successful progression of an investigation. Interviewees with ID provided such responses to over one third of the prompts and did not perform as well as did their respective matches. […] In the current study, all individuals with ID, including those in the mild ID group, did not perform as well as did their TD controls, and their production of details was compromised. This pattern does not follow the hypotheses or the pattern found in previous research. It should be noted that prior research employing MA matches was performed on children but not on adolescents or adults as in the current study and that the events reported were not of a criminal nature. The relatively low performance of individuals with mild ID can perhaps be attributed to the stressful nature of the reported events (sexual or physical assault), as well as the stressful situation of a criminal investigation. It is also possible that because the individuals in the mild ID groups were older than were their matches, they were more aware of the potential consequences of a criminal investigation, which may have hindered their performance. Thus, contrary to expectations, their greater maturity and life experience may have acted to decrease rather than increase their performance during criminal investigations. In addition, individuals with ID tend to be subject to more severe abuse, by closely related figures, involving threats or use of force, and are more often silenced, factors that could have potentially limited their ability and/or motivation to provide elaborated descriptions of the abuse.” (pp. 399–400)

“Although production was lower for the ID groups (collapsed) than for their TD matches, their recall prompts were still more effective than were recognition ones, yielding larger amounts of information that were likely to be more accurate […] The current findings confirm the superiority of recall prompts for individuals with ID, suggesting that the latter employ memory retrieval mechanisms similar to those employed by TD individuals, although at a lower capacity. However, follow-up univariate analyses showed that the superiority of recall prompts was evident for all groups except the moderate ID group. Thus, not only did individuals with moderate ID produce fewer details (less than half the number of details) in comparison to their TD matches, but their production was insensitive to retrieval strategy (recall vs. recognition). This seems to represent a substantial difference in memory retrieval mechanisms among individuals with moderate ID, which may explain their poorer outcomes.” (p. 400)

Translating Research into Practice

“The current study yields important insight into the capabilities and limitations of individuals with ID, suggesting that they can participate in interviews and provide forensic information about experiences of abuse. Thus, misconceptions about individuals with ID among forensic professionals were challenged by the empirical data, and dismissal of their witnessing skills was shown to be unfounded. Instead, the data support adopting an empowering approach toward ID individuals throughout the legal process and suggest that involving them as witnesses may enable more rigorous investigations of crimes against them and help prevent further crimes.” (p. 400)

“The data suggest that use of developmentally sensitive investigative strategies, similar to those designed for TD children, can be appropriate when individuals with ID are interviewed. […] The current study supports [the conclusion that the NICHD protocol can be effective in the investigation of children with ID] based on a more ecologically valid exploration in a forensic context and further suggests that the NICHD protocol can be successfully used in interviews of adolescents or adults with ID of both mild and moderate levels.” (p. 401)

“The study also points to weaknesses in communication and memory performance of individuals with ID, of which investigators should be aware to set realistic expectations of these witnesses. Most important, investigators should be aware of their lower production of details and provide them with more cognitive support for recall instead of shifting to potentially harmful recognition prompts. […] Employing appropriate cueing strategies may perhaps support free recall among individuals with ID and improve their retrieval.” (p. 401)

“By utilizing ID individuals’ strengths while adapting to their limitations, forensic interviewers can help them become valuable informants in criminal investigations. Because a large variation among individuals with ID was evident and they tended to function at different levels of skill, a well-informed evaluation of memory, verbal, and communicative skills of the individuals referred to investigation is necessary to conduct developmentally adjusted forensic interviews.” (p. 401)

Other Interesting Tidbits for Researchers and Clinicians

“Because this was a field study of individuals describing criminal events that were obviously not documented, it was impossible to assess the accuracy of the information reported. However, the number of recall details can be indicative of the quality of the statements, because extant research has shown that information elicited with recall strategies is generally accurate (over 80% accuracy) among individuals with ID.” (p. 400)

“Another limitation of the current study was the lack of CA-matched groups, in addition to MA matches. In an attempt to avoid variations in investigative agencies, in interviewers’ training, and especially in the investigative guidelines employed, we selected all groups from the investigation service for children and individuals with ID. Although this service investigates ID individuals of all ages, it does not serve TD individuals over 14 years of age. Thus, CA matching was not possible. Consequently, the individuals with ID were substantially older than were their TD matches, which may have affected both the interviewers’ interventions and the interviewees’ performance. In addition, the fact that all participants made allegations limits generalizability of the findings. It is possible that participants denying suspicions of abuse would have been addressed with a different composition of prompts and would have displayed lower cooperation and engagement or lower eyewitness skills.” (p. 400)

“Another limitation was the lack of distinction between open-ended and directive prompts. These prompts were collapsed during coding, which prevented exploration of their distinct effects in the investigation of individuals with ID. […] Future research may elucidate the role of open-ended versus directive utterances in real-life investigations.” (p. 400)

“Finally, in the current study, the forensic statements provided by individuals with ID were analyzed only in terms of their volume, whereas their clarity and organization were ignored. Examination of the narrative coherence of individuals with ID can be of special relevance to the forensic system.” (p. 400)

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Research Shows: No Consensus on Optimal Long-Term Treatment for Forensic Patients

This rapid review summarizes available research on the definition, prevalence, characteristics, and needs of long-stay patients within forensic psychiatric settings. The factors most frequently associated with longer stay included: the seriousness of the index offense, history of psychiatric treatment, presence of a cognitive deficit, severity of illness, and diagnosis of schizophrenia or psychotic disorder. Furthermore, there is no current consensus on what services or forms of treatment would be best practice for forensic patients who require a longer stay in facilities. This is the bottom line of a recently published article in the International Journal of Forensic Mental Health. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | International Journal of Forensic Mental Health | 2018, Vol. 17, No. 1, 45-60

Characteristics and Needs of Long-Stay Forensic Psychiatric Inpatients: A Rapid Review of the Literature

Authors

Nick Huband, Division of Psychiatry and Applied Psychology, University of Nottingham, UK
Vivek Furtado, Division of Psychiatry and Applied Psychology, University of Nottingham, UK
Mareike Eckert, Pompefoundation, Nijmegen, The Netherlands
Erik Bulten, Behavioural Science Institute, Radboud University, Nijmegen, The Netherlands
Birgit Vollm, Division of Psychiatry and Applied Psychology, University of Nottingham, UK

Abstract

This rapid review summarizes currently available information on the definition, prevalence, characteristics, and needs of long-stay patients within forensic psychiatric settings. Sixty nine documents from 14 countries were identified. Reports on what constitutes “long-stay” and on the characteristics of long-stay patients were inconsistent. Factors most frequently associated with longer stay were seriousness of index offence, history of psychiatric treatment, cognitive deficit, severity of illness, diagnosis of schizophrenia or psychotic disorder, history of violence, and history of substance misuse. Although some countries are developing specific long-stay services, there is presently no consensus on what might constitute “best practice” in such settings.

Keywords

Forensic psychiatry, length of stay, long-stay patients, mentally disordered offenders, patients’ needs

Summary of the Research

“Detention in forensic care is generally not time-limited, and discharge from a secure hospital setting will partly depend on clinical factors such as the individual’s response to treatment and the judgment of the medical team on the risk that may be associated with the patient’s discharge. In forensic settings, length of stay will also depend on the legislation around the detention of MDOs (mentally disordered offender), the complexities of service provision as well as social and political factors…It has been suggested that a significant proportion of MDOs require long term, potentially life-long, forensic psychiatric care, and that these long-stay patients are characterized by complex psychopathology, noncompliance in therapy and a high risk of criminal recidivism” (p.45).

“Although involuntary hospitalization in mental health services inevitably raises ethical issues, being by definition a coercive treatment, there are particular concerns that an extensive period of forensic inpatient care can be detrimental, seriously restricting patients’ autonomy, quality of life and their perspectives for future independent living…There is also the possibility that a significant number of long-stay forensic patients receive treatment in an inappropriate and over-restrictive care setting…” (p.46).

“The objective of this rapid review is to summarize what is currently known on the characteristics and needs of long-stay forensic inpatients…the characteristics most commonly found as positively associated with long-stay status were those which concerned the gravity of the offence that precipitated admission…These included an index offence of murder or homicide…the severity of the offence…and having an index offence that was violent…or sexually motivated…In contrast, the number of previous convictions had no significant association in 7 out of the 8 studies which tested for this…” (p.52).

“Other characteristics commonly found associated with longer forensic inpatient stays were: history of psychiatric treatment (67%), cognitive or organic deficit (67%), severity of illness or symptoms (55%), diagnosis of schizophrenia or psychotic disorder (35%); history of violence (33%), history of substance misuse (29%), poorer education (27%), and younger age at admission or index offence (26%)…Eighteen of the 40 studies used multivariate analyses to identify factors that can be considered to be predictive, rather than simply characteristic of the length of stay…the factors most often found to predict a longer length of stay were the seriousness of the index offence (severity, murder or homicide, violent, sexually motivated) and a diagnosis of schizophrenia or psychotic disorder. Having an ongoing close relationship and being employed before admission to forensic psychiatry predicted shorter stay” (p.52-53).

“…although the specific needs of long-stay forensic patients have been explored in relatively few studies, their findings may serve to guide the planning of future service provision for this patient group. Understandably, the need for safety (to others and to the self) was viewed as paramount, along with providing interventions to address violence and to resolve psychotic symptoms. Most studies also identified the need for social interaction and structured daytime activity, and the importance of providing treatment related to sex offenses and interventions to address substance abuse and physical health issues such as smoking and obesity” (p.54).

“In summary, although the literature on service provision specifically for long-stay forensic patients is sparse, continued therapeutic input for long-stay patients appears to be valued, with support for individualized treatment programs, structured activities that include sport, social, and leisure groups, and attention to work rehabilitation. An important need identified in several studies was to receive treatment for psychotic symptoms in order to achieve mental health recovery… Arguments have also been made for providing a well-lit environment to reduce aggression, for arranging for patients who are unlikely to ever be released to be cared for separately, for ensuring those with Cluster B diagnoses are kept separate from those with schizophrenia, and for adopting a high staff-to-patient ratio to avoid excessive physical security. It appears therefore that recovery, quality of life, and social climate are considered as key elements when designing provision for long-stay patients” (p.56).

Translating Research into Practice

“There is clearly a need for agreement on how best to define the concept of ‘long-stay’ in forensic settings. Regardless of how long-stay is defined, however, there is strong indication that development of services for this patient group should anticipate significant levels of chronic, treatment-resistant mental disorder. Future service provision for long-stay forensic patients will need to strike a balance between addressing this chronicity, reducing the risk of violence, and helping such patients achieve an improved quality of life. Whether or not such separate services for long-stay patients are needed and desirable is a question that warrants further exploration through the engagement of service users, providers, clinicians, ethicists, and law professionals” (p.57).

Other Interesting Tidbits for Researchers and Clinicians

“A future review on this topic might benefit from a more extensive search of the grey literature for unpublished reports, and from communication with selected academic researchers and clinicians who may have personal knowledge of additional relevant studies. Including more specific search terms for qualitative research might identify studies focusing on the experience of professionals, patients, and carers of residing in forensic settings for a long period of time…The responsivity issues for long-stay patients appear poorly documented, and so good quality studies are needed of patients who do not respond to efforts to reduce their length of stay, especially in comparison with those who are more successful. Further research is also needed to evaluate newly developed long-stay forensic services…” (p.56-57).

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As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amber Lin

Amber Lin is a volunteer in Dr. Zapf’s research lab at John Jay College of Criminal Justice. She graduated from New York University in 2013 with a B.A. (honors) and is a second year Masters student at Fairleigh Dickinson University. Her research interests include forensic assessment, competency to stand trial, and the refinement of instruments used to assess the psychological states of criminal defendants.

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Addressing Trauma via Juvenile Probation Officer’s Treatment Planning

Juvenile Probation Officers recognize trauma exposure and posttraumatic stress symptom information, but do not prioritize such information as a rehabilitation target during the case planning process. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 4, 369-384

Juvenile Probation Officers’ Evaluation of Traumatic Event Exposures and Traumatic Stress Symptoms as Responsivity Factors in Risk Assessment and Case Planning

Authors

Evan D. Holloway Fordham University
Keith R. Cruise Fordham University
Samantha L. Morin Fordham University
Holly Kaufman Fordham University
Richard D. Steele Pennsylvania Juvenile Court Judges’ Commission (JCJC), Harrisburg, Pennsylvania

Abstract

Juvenile probation officers (JPOs) are increasingly using risk/needs assessments to evaluate delinquency risk, identify criminogenic needs and specific responsivity factors, and use this information in case planning. Justice-involved youth are exposed to traumatic events and experience traumatic stress symptoms at a high rate; such information warrants attention during the case planning process. The extent to which JPOs identify specific responsivity factors, in general, and trauma history, specifically, when scoring risk/need assessments is understudied. In the current study, 147 JPOs reviewed case vignettes that varied by the adolescents’ gender (male vs. female), traumatic event exposure (present vs. absent), and traumatic stress symptoms (present vs. absent), and then scored the YLS/CMI and developed case plans based on that information. JPOs who received a vignette that included trauma information identified a higher number of trauma-specific responsivity factors on the YLS/CMI. Despite an overall high needs match ratio (57.2%), few JPOs prioritized trauma as a target on case plans. The findings underscore the importance of incorporating trauma screening into risk/needs assessment and case planning.

Keywords

juvenile justice, responsivity, risk assessment, RNR, trauma

Summary of the Research

“Approximately 1.5 million youth under the age of 18 are arrested each year. Regardless of whether they are detained or released, the most common disposition in the juvenile justice system is supervised probation in the community. Whether immediately
following disposition or post release from an out-of-home placement, many justice-involved youth are supervised by juvenile probation officers (JPOs) in the community. JPOs develop individualized case plans that guide specific case management and supervision strategies as well as service referrals. Increasingly, case plans are developed based on the results of structured risk assessment tools that facilitate identification of criminogenic needs (e.g., educational difficulties, unstructured leisure time) or impaired functioning (e.g., adverse living conditions, mental health problems)” (p. 369).

“Case planning should also account for current mental health symptoms given converging evidence of the elevated prevalence of mental health disorders among justice-involved youth. Often, justice-involved youth are screened for mental health concerns at probation intake and screening results inform referrals for subsequent mental health services. Researchers have begun to examine how JPOs analyze and translate results of risk assessment and mental health screening information into case plans and pre-dispositional reports. The focus of this research has been to identify how JPOs consider criminogenic needs when making case planning decisions; however, less attention has been paid to how JPO case plan decision making is affected by responsivity factors (e.g., learning styles, mental health symptoms). Thus, the aims of the current study were to examine how justice-involved youths’ histories of traumatic event exposure (TEE) and current traumatic stress symptoms (TSS) impacted JPO scoring of a risk assessment tool and whether such information was incorporated into case plans” (p. 369).

The specific intentions of the current study were to “(a) examine whether information about TEE and TSS impacted JPO scoring of the YLS/CMI, (b) identify whether the presence of TEE and TSS affected summary risk ratings on the YLS/CMI, (c) identify whether the presence of TEE and TSS affected the number of criminogenic needs and trauma-based specific responsivity ratings on the YLS/CMI, and (d) examine how often JPOs considered TEE and TSS as a relevant target on case plans. These aims were addressed through a field-based study utilizing a large sample of JPOs who have received extensive training in scoring the YLS/CMI and using risk/needs assessment results to develop case plans. Mirroring the process employed in the participants’ annual booster training, a vignette was developed that manipulated the presence of TEE and TSS to examine the impact of this information on YLS/CMI scoring and case plan development” (p. 379).

“Results were mixed regarding the impact of TEE and TSS on YLS/CMI scoring and case plans. First, there were no differences in overall risk rating between participants who received a vignette describing TEE or TSS and those who received a vignette with no
mention of trauma. Similarly, the number of high-risk needs identified on the YLS/CMI did not differ by vignette type. Second, JPOs who received a vignette describing a youth with TEE or TSS scored more trauma-relevant YLS/CMI responsivity factors. Therefore, JPOs correctly scored trauma-related information from the vignette on the corresponding section of the YLS/CMI. Although JPOs identified trauma-specific responsivity factors on the YLS/CMI, only three JPOs specifically targeted this information on the case plan. Likewise, JPOs who received a vignette with trauma information were not more likely to make a recommendation for further mental health evaluation or treatment” (p. 379).

Translating Research into Practice

“The presence of TEE and TSS did not result in elevated YLS/CMI risk scores. Although contrary to the hypothesis, this null result is in fact a positive indicator that information about history of traumatic events and specific trauma reactions do not bias ratings of criminogenic needs or inflate the overall risk level” (p. 380).

“TEE and TSS did not affect the number of high-risk needs documented on the YLS/CMI, the number of those needs targeted on the case plan, or the needs-match ratio. This finding is consistent with research demonstrating that TEE and TSS are associated with factors that interact or are related to criminogenic needs, but are not viewed as criminogenic needs on their own. The presence of TEE or TSS could have impacted the scoring of individual items comprising YLS/CMI domains…This finding has both positive and negative implications for case planning. On a positive note, the presence of TEE or TSS did not bias scoring of needs or inflate overall decisions about risk. However, when these same needs were elevated in the presence of TEE or TSS, the overall case plan results suggested that JPOs may be less likely to consider trauma as a
driver of such behaviors and not consider to what extent these needs could be addressed through trauma-specific or trauma informed interventions” (p. 380).

“The RNR model clearly delineates the relevance of specific responsivity factors when developing overall rehabilitation plans. Despite extensive training on the YLS/CMI and case planning, the fact that 30% of participants scored no specific responsivity factors suggests the need for additional training on the responsivity principle” (p. 380).

“JPOs very rarely targeted TEE or TSS for intervention on case plans; only three case plans specifically targeted trauma…This is a particularly troubling finding given the high rate of TEE and PTSD diagnoses among justice-involved youth” (p. 381).

“Just under half of the case plans included a recommendation for mental health services (counseling, therapy, or an evaluation), indicating that a number of JPOs recognized the importance of mental health services for the youth described in the vignette. However, JPOs in the TEE+ and TSS+ conditions were no more likely to recommend a general mental health evaluation or services, which indicates that the presence of trauma information did not result in a greater likelihood of mental health referrals” (p. 381).

“These findings suggest that youth under probation supervision who have a history of TEE, or are currently experiencing TSS, are unlikely to be referred or connected to trauma-specific services by their JPO. Given that youth rarely seek care on their own, such youth are unlikely to receive the potential benefits of trauma-specific assessment or treatment unless JPOs are able to identify trauma and develop case plans that support such referrals. These findings are generally consistent with previous research findings that JPOs are better able to identify externalizing symptoms (e.g., aggressive or delinquent behavior) than internalizing symptoms (e.g., sleep difficulties, negative mood, or PTSD). About 50% of JPOs included general mental health referrals in their case plans. This is a generally positive finding if it can be assumed that clinicians receiving that referral will accurately identify the specific mental health problems contributing to delinquent behavior. However, a generic mental health recommendation, in the presence of specific information about trauma-related symptoms, provides little guarantee that these symptoms will either be further evaluated or effectively treated. The purpose of rating responsivity factors on the YLS/CMI is to ensure that case planning and service referrals are properly informed and targeted. Thus, the fact that almost 30% of the current sample did not utilize the responsivity section of the YLS/CMI indicates that JPOs prioritize criminogenic needs over responsivity factors in case planning” (p. 381).

“Taken together, these findings suggest that JPOs may feel more comfortable deferring to clinicians to confirm a diagnosis and provide guidance as to how mental health information in general, and trauma information in particular, should guide case management practices. However, the relative lack of case plan strategies specifically targeting trauma in the presence of TEE and TSS is problematic; youth with this history will not be identified for further trauma screening and assessment, which represents a missed opportunity to link trauma-exposed youth to appropriate treatment services. This finding also has implications for JPOs’ role as gateway providers to mental health care among justice-involved youth with mental health concerns. For example, a recent study found that when justice-involved youth who screened positive for mental health concerns in juvenile detention were connected to mental health care, clients and their caregivers perceived their JPO as playing a gatekeeper role in their connection to care. Additionally,
recent findings suggest that receipt of mental health treatment is associated with addressing more criminogenic needs, and when case plans addressed both areas, recidivism rates were lower compared with youth with only one or neither area addressed. These findings underscore the importance of identifying and targeting mental health-based specific responsivity factors on case plans and connecting youth to appropriately matched services” (p. 381).

Other Interesting Tidbits for Researchers and Clinicians

“Future research should examine how JPOs consider the relevance of mental health-related specific responsivity factors. It is possible that JPO orientation, whether JPOs see their role as being more aligned with law enforcement or rehabilitation efforts, impacts identification of mental health difficulties and prioritizing this information on case plans. Regardless of orientation, evidence suggests that JPOs who do not feel competent to address mental health concerns with youth on their caseload may be less likely to use strategies associated with treatment” (p. 381).

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Amanda Beltrani

Amanda Beltrani is a current doctoral student at Fairleigh Dickinson University. Her professional interests include forensic assessments, professional decision making, and cognitive biases.

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Et tu, friend? Confessions and corroborating alibis among friends and strangers

Knowledge of a confession may alter the willingness to corroborate alibi even among friends. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 353–364

A novel paradigm for examining alibi corroboration and evidence interaction: Does a confession affect the likelihood of alibi corroboration for friends and strangers?

Authors

Megan R. Kienzle, University of Florida
Lora M. Levett, University of Florida

Abstract

We examined the possibility that hearing about a confession could influence potentially exonerating information proffered by a familiar or unfamiliar alibi corroborator. College students (N = 268) brought a friend to a team building session. After the team building session, we asked participants to corroborate an alibi for either their friend or a stranger accused of theft. We also manipulated whether the suspect confessed and the timing of when the confession information was presented to participants. Friends were more likely than strangers to be alibi corroborators across multiple scales and dependent measures. Further, potential corroborators who heard about the suspect’s confession were less likely than those who did not know of the confession to be willing to serve as an alibi corroborator; hearing about a suspect’s confession after making an initial alibi corroboration caused participants to change their decisions. Qualitative analyses also suggest several possible motivations given by corroborators and noncorroborators. Implications for police procedure and research design are discussed.

Keywords

alibi generation, evidence interaction, evidence contamination, forensic confirmation bias

Summary of the Research

“In 1986, John Kogut was wrongfully convicted of the rape and murder of a 16-year-old girl. During the investigation of these crimes, Kogut was subjected to an 18-hr interrogation, at the end of which he falsely confessed; he later recanted the confession. During the time of the crime, Kogut was actually at his girlfriend’s birthday party, and therefore theoretically should have had multiple alibi corroborators in the other people present at the party who could help to prove his innocence. Many of these individuals were willing to corroborate his story initially, but none testified in court. It is possible that hearing about Kogut’s confession caused the potential alibi corroborators to question their memory and ultimately withdraw their original statements. Thus, one piece of erroneous evidence (the false confession) may have corrupted potentially exculpatory evidence (the alibi corroborations). This paper explores that possibility, introduces a new paradigm for studying alibi corroboration, and addresses whether confession evidence can corrupt potentially exonerating evidence given by friend versus stranger alibi corroborators.” (p. 353)

“Basic psychological research supports the idea that pieces of evidence have potential to change other evidence through confirmation biases. Kassin and colleagues termed this forensic confirmation bias, or the idea that an individual’s beliefs, motivations, expectations, or situational context can influence their interpretation of other evidence in a criminal trial. Specifically, if investigators espouse beliefs about the suspect’s guilt or are given contextual information, those beliefs can affect their interpretation of subsequent evidence. […] knowledge of contextual information essentially focuses the investigation or trial on the inculpatory evidence, strengthening inculpatory evidence through affecting the focus on and interpretation of subsequent evidence.” (p. 353)

“Forensic confirmation bias has been demonstrated in decisions of fingerprint examiners, handwriting analysis, polygraph interpreters, DNA analysts, eyewitnesses, participants examining facial composites, crime scene investigation, and participants examining speech recordings—anywhere a human factors into the forensic decision making process. Further, the advent of rapid identification information technology provides investigators with on-the scene database matches which can impact the interpretation of relevant crime scene information from the moment the match is made and increase the importance assigned to that piece of evidence. The collective literature demonstrates the pervasiveness of the forensic confirmation bias, reaching from analysis of evidence in a field or laboratory setting to the memory based forms of evidence. Every stage of the investigation and evidence collection process, through the trial, can be impacted by prior knowledge or contextual information. […] Investigators are generally aware of the problematic influence that confirmation biases may have in their decisions. However, common recommendations to move to the other end of the spectrum where investigators are completely blind to all external context has problems as well.” (p. 353–354)

“Forensic confirmation bias seems to be most influential in cases where the evidence itself is somewhat ambiguous. […] There is also some evidence to support that the order in which evidence is perceived affects whether forensic confirmation bias will occur. […] Research has shown that forensic confirmation bias may be especially strong in an investigation in which the corrupting evidence provided is a confession. Learning of a confession may change the decisions of legal actors during the investigation.” (p. 354)

“The same confirmation biases that affect legal actors during investigation also appear to affect juries. Confessions influence jury verdicts, and this effect is persistent under less than ideal confession conditions. Jurors believe the likelihood of a false confession is low even with coercion, and confessions influence verdict even if the jurors believe the confession was coerced or obtained through a secondary source who may be motivated to lie. Exacerbating the problem, juries may hear other pieces of evidence that have been corrupted by the confession and more indicative of guilt. […] Further, research supports the idea that jurors may evaluate the confession evidence to be voluntary depending (1) on the strength of the rest of the case evidence and (2) on their chosen verdict, even after the fact” (p. 354)

“The problem of confessions corrupting other pieces of evidence through forensic confirmation biases becomes particularly problematic when the evidence corrupted is memory evidence. That is, if forensic confirmation biases affect physical evidence, it may be possible to retest the evidence under bias-free conditions (e.g., a fingerprint examiner who is blind to expected outcomes or contextual information could reexamine the fingerprint). However, in the case of memory evidence, the contextual information may permanently change the evidence. This is even more troublesome if the memory evidence is potentially exonerating.” (p. 355)

“A confession may affect an eyewitness’s or alibi corroborator’s memory through forensic confirmation bias. […] learning of a confession can not only affect other pieces of incriminating evidence, suggesting that sometimes weak evidence may be present in the courtroom, but also may contribute to keeping good (and potentially exculpatory) evidence out of the courtroom. In Kogut’s case, his false confession likely corrupted exonerating information from his potential alibi corroborators. In this study, we test this possibility that potential friend and stranger alibi corroborators are subject to the same cognitive confirmation biases as eyewitnesses, fingerprint examiners, police investigators, and judges and jurors when they hear about a suspect’s confession, expanding previous work examining forensic confirmation bias in alibi corroboration to include different types of alibi corroborators.” (p. 355)

“Research suggests that the relationship between the person and defendant may matter in whether a person will corroborate an alibi. Familiar alibi corroborators are less likely than nonfamiliar corroborators to be mistaken in their corroboration because the identity of the suspect is not in question. However, using experimentally induced friend relationships, researchers found that friends and strangers were equally likely to provide an alibi and instead, alibi corroborators based their decisions of whether to corroborate the alibi or not on the evidence present to suggest guilt. We expanded on that literature to examine alibi corroboration in preexisting friendships instead of experimentally induced friendships, hypothesizing that alibi corroborators who are true friends would be more likely than strangers to proffer an alibi corroboration, and that friends may be less subject to forensic confirmation biases than alibi corroborators who are unfamiliar with the suspect (i.e., strangers).” (p. 355)

“To address our research question, we created a new paradigm for examining person alibi corroboration through a false theft accusation. In this study, we recruited participants under the guise of participating in a team building activity over two sessions. All participants were required to bring a friend to the first team building session. In this session, participants and friends completed a variety of team-building activities, switching between new ‘teams’ in every activity. In the second session, participants were told individually that either their friend or a stranger was accused of a theft that took place during the first session, however in reality the theft never occurred. We varied whether participants were made aware of the suspect’s confession to the crime (and the timing of the presentation of that evidence). Participants were asked to provide an alibi corroboration for the suspect. The alleged crime never took place, so we explicitly were asking for a false alibi corroboration of a nonexistent crime. However, these variables were constant across conditions, allowing us to isolate the effects of the relationship between the alibi corroborator and the suspect and the confession information on alibi corroborator decision making.” (p. 355)

Participants included 268 students aged 17 to 32 (M = 24.62), 66% female, 34% male, mostly White (51%).

“Contrary to previous research that found friends and strangers were equally likely to provide an alibi corroboration, in this study, friends were more likely than strangers to be alibi corroborators, to be confident in that corroboration, believe the confession was coerced, and overall believe the suspect was (correctly) innocent. Friends also said they believed they had better memories and viewing conditions for the suspect’s actions than strangers (although they were less likely than strangers to cite their memories as a reason for proffering a corroboration). Thus, it appears that the relationship between the alibi corroborator and suspect affects whether a participant will corroborate a suspect’s alibi. It is possible that the reluctance of strangers to serve as an alibi corroborator could be understood through the lens of a bystander effect.” (p. 361)

“The idea that strangers may be less willing to serve as alibi corroborators than friends is troubling, especially given that jurors are more likely to believe alibi corroborators with no relationship to the suspect than those with a relationship. That is, the most believable alibi corroborator (the stranger) is not the most probable one (the friend). Consistent with jurors’ concerns, however, friends were more likely than strangers to cite reasons other than their memory (i.e., the person’s character or lack of motive to steal) in their justifications of the decision to be an alibi corroborator even though friends rated their memories and view for the time frame as higher.” (p. 361)

“It appears that friends and strangers may be equally susceptible to confirmation biases through the corruptive power of a confession. That is, familiarity with the suspect did not differentially affect willingness to provide an alibi corroboration in the confession conditions. Even though friends were more likely than strangers to believe the confession was coerced, friends and strangers were equally likely to change their corroboration decision after hearing about a confession, and friends were more likely than strangers to cite the confession as a justification for not serving as an alibi. It is possible that more power would be needed to detect this interaction; future research could explore this possibility. It is also possible that this is demonstrative of the power of the confession—the presence of a confession affected decision making regardless of the relationship between the alibi corroborator and suspect.” (pp. 361–362)

“The present study demonstrates that confessions can corrupt potentially exonerating evidence, even if that potentially exonerating evidence is an alibi corroboration from a friend. Thus, it appears that forensic confirmation bias can alter person evidence, as seen here with alibi corroborators and in previous research examining eyewitness decision making.” (p. 362)

“Unlike other forms of evidence, the potentially exonerating evidence of an alibi corroboration is likely discarded if the suspect’s alibi is not corroborated because of forensic confirmation biases. Thus, we have no way of knowing how many cases are missing potential alibi corroborators who could have helped to prove an innocent suspect’s case. In addition, while forensic experts and fingerprint analysts have the original evidence preserved to retest if necessary, person evidence given by alibi corroborators is forever changed by the knowledge of a confession; one cannot simply start over once this information has been revealed.” (p. 362)

Translating Research into Practice

“It may be premature to recommend change in the collection of information from alibi corroborators given this is a relatively new area of research. However, many recommendations have been put forth to attempt to correct for or protect against forensic confirmation biases in the legal context. […] [Forensic] analysts are not the only legal actors who need to focus on documentation to ensure the ability to (a) detect if contamination has occurred; (b) where the contamination came from; and (c) in cases where retesting is not an option, accurately describe the contamination effects to judges and jurors so they can appropriately account for the quality of evidence in determining whether it meets admissibility standards, or how to weigh it in combination with all other evidence in judging guilt or innocence. This study, as well as the others cited previously, suggest that it may be pertinent for investigators to use similar documentation and methods to preserve how an alibi corroboration is obtained and considered. Further, given that is it possible for alibi corroborators to be affected by contextual information, investigators should protect alibi corroborators from potentially corruptive information whenever possible.” (p. 363)

Other Interesting Tidbits for Researchers and Clinicians

“One limitation of this study is that all participants were innocent suspects. Thus, we were unable to determine whether participants were equally likely to corroborate a guilty suspect or innocent suspect’s alibi. Future research could examine this possibility, and examine the corruptibility of a known or unknown false alibi corroboration.” (p. 362)

“Another limitation of this work is that no crime actually took place, so there was no real need for an alibi corroboration. In that sense, all of the alibi corroborations were ‘false’ because they were false corroborations of a nonexistent crime. In addition, another limitation of the paradigm is the nature of the activity itself. Recall that during the team building session, it was difficult for participants to track the behavior of the others in the room. Therefore, it is possible that we may have created a situation in which we were the most likely to see an effect of the relationship between the alibi corroborator and suspect on alibi corroboration.” (p. 362)

“Further, it is possible that the familiarity manipulation we used in this study affected outcomes. For example, it is conceivable that the alibi corroborator felt a strong sense of responsibility for the friend because he or she brought the friend to the session, and this may have affected his or her decision making. A similar sense of responsibility may not exist in more realistic situations involving a familiar alibi corroborator. Further, it is impossible to know whether friends brought to the session actually shared study information with participants. Future research could attempt to correct these possibilities by altering the paradigm.” (pp. 362–363)

“Another limitation of this paradigm is that the theft represents a minor crime, and unlikely to advance to the stage of a criminal prosecution. It is possible that a more realistic, ecologically valid scenario might alter the results presented here. This simulated, false theft scenario may be limited in the ability to generalize to the many other types of alibi corroborations that are sought in investigation of crime. Additional research may want to examine the possibility that severity of the alleged offense may moderate the relationship effect on alibi corroboration decisions.” (p. 363)

“Further, while anecdotal information from the experimenter suggests that participants in the second session believed that someone was accused of a theft, it is possible participants may have not believed the experiment was real. That would limit the ability to capture participants’ real responses. Last, we were unable to capture the nonmotivated familiar other alibi corroborator in this paradigm. Future research could attempt to better capture this relationship in examining alibi corroboration.” (p. 363)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Extra! Extra! Read all about it: The impact of pretrial media coverage on the right to fair trial in capital cases

Pretrial publicity in capital cases tends to be highly negative, sensationalistic, and tends to contain prejudicial aspects that can potentially impact the jurors unless the venue is moved – which is rarely done. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 326–340

The media’s impact on the right to a fair trial: A content analysis of pretrial publicity in capital cases

Authors

Shirin Bakhshay, University of California, Santa Cruz
Craig Haney, University of California, Santa Cruz

Abstract

This study examines whether and how the right to a fair and impartial jury may be compromised by prejudicial news media coverage of death penalty cases. Using a unique data set of historic newspaper coverage of 20 capital cases in California in which defendants filed change of venue motions, we conducted a detailed content analysis of 1,831 newspaper articles to examine the nature and extent of the pretrial publicity in each case. We used a detailed coding scheme with 27 content categories to describe the types of information conveyed; analyze the relative amounts of negative, positive, and neutral content in the publicity; and determine whether the publicity included the kind of information that has been shown to bias prospective jurors. The publicity was overwhelmingly negative and we identified a number of highly prejudicial aspects, including heavy reliance on law enforcement and prosecution sources, numerous instances of sensationalized descriptions of the crime and criminal defendant, and the inclusion of legally excludable material. Despite the potentially biasing effects of the publicity analyzed, venue was rarely changed. Moreover, the trial courts’ decisions appeared largely unrelated to the substantial amount and prejudicial content of the pretrial publicity. Implications for a capital defendant’s right to an impartial jury, due process protections, and the adequacy and availability of effective legal remedies are discussed.

Keywords

pretrial publicity, change of venue, death penalty, content analysis

Summary of the Research

“The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to “an impartial jury.” This fundamental guarantee is part of a criminal defendant’s basic right to a fair trial, which encompasses the right to be judged by a jury of his or her peers and on the basis of evidence presented at trial. Information that jurors obtained before or outside of the trial itself and any pre-existing, case-related biases they may hold are not supposed to influence their decision-making. In practice, the Sixth Amendment right to an impartial jury has come to mean that jurors cannot have formed opinions about key aspects of the case—and certainly not the defendant’s guilt— before trial. Combined with the “presumption of innocence” that attaches to all criminal defendants at the start of trial, the Sixth Amendment requires jurors to be indifferent, unbiased, and open to the evidence presented at trial. However, in an increasingly media-saturated society, defendants in high profile cases may be tried—and essentially found guilty—by the news media before they reach a courthouse. Depending on the nature and amount of the media coverage that surrounds a particular case, potential jurors may be profoundly affected by what the press reports. As a consequence, criminal defendants may be deprived of basic Sixth Amendment protections.” (p. 326)

“Studies suggest that most people rely on the media as their principle source of information about crime. Moreover, people generally attach a great deal of credibility to news about crime. However, much empirical research has demonstrated that media coverage of crime is often skewed and one-sided. […] Media news coverage of criminal cases may also contain prejudicial information that may be legally inadmissible at trial, but which is disseminated to the public nonetheless. Specifically, certain types of evidence that the court believes will create a danger of “undue prejudice” can be excluded from being presented at trial, including mention of a defendant’s past criminal record, negative statements about a defendant’s character or reputation, prior confessions, and sensationalized or emotionally charged descriptions of the crime. […] There is also some evidence that the media relies very heavily on law enforcement and prosecution sources as the basis for their reporting. […] Because the source of information can influence both its interpretation and the weight it is given, such coverage not only presents just one side of the story but also lends greater legitimacy to the side that law enforcement officials and prosecutors, who are viewed as especially credible sources of information, convey. In combination, these factors can result in an unbalanced and biased media representation of crime, which may threaten a criminal defendant’s right to a fair trial.” (p. 326–327)

“A majority of Americans (over 70%) still follow the news closely and regard traditional news organizations as the largest and most trusted source of news. […] As traditional news media outlets compete for revenue, the tendency to focus on the most sensationalized accounts and cringe-worthy aspects of crime has become more pronounced. Although the idea of promoting the “news as entertainment” is not new, the explosion of online media outlets has added to the fervor and created more options for readers, if anything increasing the potential for biased, sensationalistic coverage to have a correspondingly prejudicial impact.” (p. 327)

“Despite changes in the media landscape, local news sources (both print and online editions) continue to be of significant importance to citizens and potential jurors. […] Local news outlets provide an easier way to access relevant local news without having to sift through the multitude of potentially irrelevant online material. Thus, even in an era of ever-increasing exposure to news and quasi-news stories, local crime coverage continues to be a relevant source of information about local crime.” (p. 327)

“Research has shown that biased news coverage of crime can affect public opinion and may influence the outcome of criminal cases. In specific cases, exposure to media coverage has been shown to have a prejudicial impact on potential jurors’ attitudes toward criminal defendants, including the perceived greater culpability and lessened credibility of the defendant. In some studies exposure to pretrial publicity has resulted in more guilty verdicts and harsher sentences.” (p. 327)

“Concerns over the potentially biasing effects of pretrial publicity are especially pronounced in death penalty cases. […] The fact that death penalty cases generally involve the most severe kinds of violent crimes also means that they tend to receive the most publicity. Such cases often lend themselves to sensationalistic and emotionally charged publicity that portrays the capital defendants as “monsters” and “evil.” […] Moreover, the process of “death qualification,” by which prospective capital jurors are questioned about their views on the death penalty and excluded if they are unwilling to consider the death penalty as an appropriate punishment, may result in the selection of jurors who are especially susceptible to pretrial publicity. […] The nature and amount of pretrial publicity that surrounds a capital case, in particular, can represent a significant threat to the defendant’s fair trial rights.” (p. 327–328)

“Courts have been long aware of the biasing effects that pretrial publicity can have on prospective jurors and the threat that its potentially prejudicial aspects pose to juror impartiality. In fact, a wide range of potential remedies have been established that judges have at their disposal ostensibly to minimize these effects. The remedies include ordering a continuance or delay (postponing the start of the trial until the case-related publicity has subsided); using enhanced or extended voir dire (more extensively questioning prospective jurors about the extent of their publicity-related knowledge about the case and, when the judge deems it necessary, excluding them on the basis of their potential bias); judicial admonitions (instructing jurors simply to disregard or set aside any pretrial publicity they may be aware of and focus only on the evidence presented at trial); and, finally, using jurors from another untainted venue either by importing them from a different county or, much more commonly, changing the venue of the trial itself to a new county that has not been exposed to the pretrial publicity surrounding the case. […] Unfortunately, research suggests that most of these remedies are ineffective and, in some instances, may even exacerbate the prejudice created by pretrial publicity.” (p. 328)

“In light of the limitations of delay, extended voir dire, and the use of judicial admonitions, the only truly effective way to limit or eliminate the potentially prejudicial effects of pretrial publicity is to avoid it altogether—that is, by selecting jurors from a pool of persons who have not been exposed to it. […] Moving a trial to a new venue effectively eliminates publicity-related concerns about pretrial publicity because, instead of attempting the nearly impossible task of curing the bias, it avoids it altogether. […] Despite the fact that moving a trial to a new venue is generally recognized as the most effective way to safeguard against potentially prejudicial pretrial publicity, it is generally believed that venue changes are difficult to obtain.” (p. 328–329)

“The present study focuses on the content of pretrial newspaper publicity associated with a sample of capital cases in California in which changes of venue were sought. Specifically, this study analyzes the publicity files for each case to determine what type of information was contained in the publicity itself, the relative amounts of negative versus positive information, and the extent to which the case-related stories relied on prosecution, law enforcement, or defense-oriented sources. A secondary aim of the study is to preliminarily examine whether the nature and amount of prejudicial pretrial publicity that surrounded the cases appeared to be related to the fate of the change of venue motions themselves (i.e., whether they were granted or denied). Finally, even more preliminarily and tentatively, we report on the final case outcomes—that is, whether the defendant was found guilty and, in those cases where he was, which sentence (life in prison without parole or death) was imposed—when venue was changed and when it was not.” (p. 330)

“This sample consists of the newspaper coverage from a total of 20 California capital cases in which change of venue motions were filed. The cases spanned a 26-year period, from 1979 to 2005, arose in 14 different California counties, and constitute a broad convenience sample of death penalty cases. Although all of the cases were filed capitally (i.e., they were ones in which the prosecution sought the death penalty), they varied considerably in terms of the nature of the crime (e.g., single vs. multiple homicides) as well as the demographic characteristics of the victims and defendants, providing a variety of different case-specific details to analyze. […] The 20 cases in our sample were selected for inclusion based on a number of criteria, including the case facts, procedural posture (i.e., cases in which pretrial change of venue motions were filed), and access to the entire publicity files. […] A total of 1,831 articles were collected across the 20 cases, averaging 92 articles per case, with cases having anywhere between 15 and 381 articles. […] Online forum discussions, such as blogs or Facebook pages, were excluded because they were not published content and could not be systematically reconstructed.” (p. 331)

“The prejudicial content of the extensive pretrial publicity in all 20 cases analyzed in this study was substantial. The publicity relied largely on police and prosecution sources, was overwhelmingly negative and sensationalistic, and included numerous instances of legally excludable information. Very little positive information was present in the pretrial publicity to remotely “balance” the messages conveyed, and almost none of it could be considered mitigating. These were all capital cases where the crimes were, by definition, the most serious, and, as we documented, the publicity extensive and one-sided. Therefore, these were precisely the kinds of cases in which motions to change venue are most typically made and the reasons weighing in favor of moving the trial venue seemingly the most compelling. Despite the fact that the publicity- and case-related factors favored granting a change of venue, as emphasized in pretrial motion hearings where defense attorneys not only argued for the need to move the trial but also typically presented expert consultants who documented the need to do so, judges nonetheless only agreed to change venue in 32% of the cases (six out of 19).” (p. 338)

Translating Research into Practice

“The finding that in none of the cases with the most negative publicity was venue changed suggests a potentially serious judicial bias, one that may threaten the due process rights of capital defendants in high profile cases. Although we are cautious to draw too many conclusions from a single study, our findings suggests that the legal standard that governs change of venue is being interpreted in potentially problematic ways that may deny certain capital defendants their constitutionally mandated fair trial rights. Change of venue is a procedural mechanism designed to give meaning to the right to an impartial jury in cases where it appears to be compromised. Yet this study raises a number of questions about whether and how effectively this mechanism is being implemented, including how many of the defendants in the capital cases included in our sample could truly receive the fair trials to which they were constitutionally entitled.” (p. 338)

“Courts may continue to be reluctant to move trials to new venues, even in the most highly publicized cases, even though moving a trial to a new, untainted venue has been shown to be the only consistently successful means for dealing with the biasing effects of pretrial publicity. This means that legal practitioners will need effective tools with which to argue for venue changes in the appropriate case, including empirical research on the content and impact of prejudicial pretrial publicity on jury bias and trial outcomes as well as a better understanding of the factors and circumstances that persuade judges to move trials.” (p. 339)

“It seems clear that the extreme amount of pretrial publicity that often accompanies a capital case can undermine the defendant’s constitutional right to be tried by an impartial jury. Of course, the potential impact of prejudicial pretrial publicity in a capital case is not only that it may significantly impact jurors’ assessments of the defendant’s guilt but also their culpability and their potential “deathworthiness.” Nonetheless, at least in the sample of cases we analyzed, these risks do not appear to be fully acknowledged or appreciated by the judiciary. Judges instead appeared willing to minimize the deep cognitive and psychological effects that negative pretrial publicity can have on prospective jurors by failing to take the one step that effectively minimizes or eliminates them.” (pp. 338–339)

“Although this study documented the nature and amount of publicity in cases from the largely predigital age, it provides a cautionary tale for the future of crime media and procedural justice. Crime coverage continues to be highly sensationalist, relying on graphic details and headlines to attract readers in an ever-increasingly competitive marketplace. […] To the extent that news organizations and other media outlets reiterate the crime master narrative and focus on sensationalized details to gain readers’ attention, they are arguably helping to undermine the fairness of the jury trial process.” (p. 339)

Other Interesting Tidbits for Researchers and Clinicians

“There were several limitations in our study that are worth noting. First and foremost, as mentioned above, is the small sample of 20 cases. Although our content analysis included a very large number of articles, the total number of cases included was too small to draw any causal conclusions. We hope to further explore this and several other issues raised by this research with a larger national sample of capital cases in which change of venue was sought, allowing us to better examine potential causal mechanisms. Our study is also limited to California cases. Although we have no reason to believe that the types of cases brought in California and the attendant media coverage of those cases differs significantly from the rest of the country, we did not include cases from additional jurisdictions in our sample and cannot speak to the widespread applicability of our findings. Future research on change of venue should include a larger sample of cases from California as well as other jurisdictions to bolster the generalizability of our findings and allow for further investigation of the impact that moving trial venue has on case outcomes.” (p. 338)

“It is also important to note that we did not include TV or radio coverage of the cases in our sample. Although TV news in particular was prominent during the timeframe studied (and remains so today), we were not able to include these sources because there are no reliable archives of this data and so their inclusion would have been incomplete at best. In future studies on this topic, it would be helpful to include an analysis of TV and radio news transcripts.” (p. 338)

“In addition, our data set consisted of capital cases that were mostly tried before the advent of online and social media and so our study did not include an analysis of purely online content concerning local crime. Although many aspects of local crime news coverage remain the same, especially the content of the coverage and its importance to local residents and communities, some aspects of the “new media” environment warrant further study. Future research might examine whether and how social media highlight certain sensational aspects of crime or act as conduits for dissemination and discussion.” (p. 338)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Guilty after proven innocent: Perceptions of exonerees’ innocence and reintegration support services

Exonerees who were wrongfully convicted based on false confessions were perceived to be less intelligent, more mentally ill, and more guilty – which impeded willingness to provide reintegration services. This is the bottom line of a recently published article in Psychology, Public Policy, and Law. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Psychology, Public Policy, and Law | 2018, Vol. 24, No. 3, 341–352

Perpetually stigmatized: False confessions prompt underlying mechanisms that motivate negative perceptions of exonerees

Authors

Kyle C. Scherr, Central Michigan University
Christopher J. Normile, Central Michigan University
Heidi Putney, Central Michigan University

Abstract

Even in the fortunate instances of being exonerated of their wrongful convictions, exonerees often struggle to assimilate back into society. Although research has established that exonerees experience stigma and a general lack of reintegration support, little is known about underlying reasons that motivate such negative perceptions. This research examined whether the evidence and crime associated with a wrongful conviction could initiate a process that alters people’s perceptions of exonerees’ intelligence and mental health status, and, in turn, undermine people’s judgments of exonerees’ guilt and subsequent willingness to support reintegration services. Participants (N = 253) read a news story about an exoneree who was wrongfully convicted of either murder or grand theft auto resulting from either a false confession or eyewitness misidentification. Participants then offered their perceptions of the exoneree’s intelligence and mental health followed by guilt-confidence judgments. Last, participants indicated their willingness to support reintegration services (psychological counseling, career counseling, and job training). Results indicated that wrongful convictions stemming from a false confession caused people to perceive the exoneree as less intelligent and these judgments, in turn, were associated with perceptions that the exoneree suffered from mental health issues which, subsequently, influenced participants’ uncertainty of the exoneree’s innocence. The string of perceptions and judgments consequently undermined people’s willingness to support each of the reintegration services. The observed effects provide empirical evidence for reforms that automatically guarantee support services for exonerees in order to overcome potential biases aimed as those who have been wrongfully convicted.

Keywords

wrongful convictions, exonerees, false confessions, stigma

Summary of the Research

“Although our legal system is experiencing a proliferation of exonerations which has, in part, led to the identification of a variety of factors that are associated with wrongful convictions, these innocents continue to face many obstacles long after release. Yet, very little research has identified underlying mechanisms associated with certain factors that influence people’s willingness to support services that help exonerees effectively reintegrate into society. This research examined whether two evidential factors associated with wrongful convictions—false confessions and mistaken eyewitness identifications—and two crimes varying in their degree of perceived severity—murder and grand theft auto—prompt underlying mechanisms that may exacerbate the difficulties exonerees’ face upon release. Specifically, we tested the ability of these factors to initiate a series of judgments, from intelligence and mental health perceptions through persevering culpability perceptions, to undermine people’s willingness to support reintegration services necessary to help exonerees rematriculate back into society. Research illustrating the stigma exonerees face is offered next followed by a discussion of how the relevant evidence and crimes can impact the obstacles exonerees confront upon release.” (p. 341)

“A growing literature has established that exonerees continue to face substantial difficulties after being factually exonerated of their wrongful conviction. Exonerees are often viewed more negatively than a person with no criminal history and, in some instances, are perceived as negatively as parolees who are actually guilty of criminal wrongdoing. The stigma associated with being wrongfully convicted is also evident in people’s unwillingness to support reintegration reforms—such as psychological counseling, job training, and career counseling—to help exonerees transition back into functioning members of society. For some exonerees, people are especially reluctant to fully believe their innocence which, in turn, motivates a hesitancy to support reintegration services. […] Research is now beginning to identify factors that perpetuate these negative patterns. One factor leading to wrongful convictions—false confessions—has been found to especially influence exonerees’ experiences after release.” (pp. 341–342)

“False confessions are associated with up to 27% of DNA wrongful convictions and ~ 12% of wrongful convictions, in general. A robust body of literature has established myriad situational factors not attributable to the suspect, such as interrogation tactics and length of interrogations, that increase the risk innocent suspects will falsely confess. However, most people do not appreciate the situational pressures that can lead to false confessions and, in fact, believe they themselves would never falsely confess. To make sense of the counterintuitive idea of false confessions, most people make an internal, dispositional attribution to explain why innocent suspects admit to crimes they did not commit. […] Thus, when wrongful convictions stem from false confessions, people may be more likely to believe the person is responsible for the outcome (Why did they confess in the first place?) and may believe that only people who are unintelligent or have mental health issues would falsely confess.” (p. 342)

“Compared to false confessions, mistaken eyewitness identifications are associated with a higher percentage of wrongful conviction cases. Mistaken eyewitness identifications are associated with almost three quarters of DNA exonerations and ~ 30% of wrongful convictions, in general. […] However, although mistaken identifications are associated with a higher percentage of wrongful convictions, research has not found that individuals who are mistakenly identified are perceived in a similar negative manner to those who have falsely confessed. […] Instances of wrongful convictions resulting from false confessions, then, are likely perceived differently than wrongful convictions produced by mistaken eyewitness identifications. […] One aim of this research, therefore, was to examine whether wrongful convictions stemming from a false confession, compared to mistaken eyewitness identification, could alter people’s perceptions of exonerees’ intelligence and facilitate a process leading to subsequent negative perceptions and judgments.” (p. 342)

“People tend to hold a range of negative perceptions about individuals convicted of criminal wrongdoing. These assumptions depend on the criminal behavior and include beliefs that convicted individuals are aggressive, violent, antisocial, manipulative, crazy, insecure, and maladjusted. Because research suggests that most people continue to believe, to varying degrees, that exonerees are still guilty of the original, wrongful conviction, exonerees may often be subjected to a range of stereotypes and beliefs used to characterized guilty offenders. People’s negative perceptions of criminals also appear to extend to convicted perpetrators’ intelligence. […] Research suggests that these intelligence-based perceptions vary depending on the type of criminal wrongdoing. Whereas violent criminals (e.g., murder) are likely to be viewed as unskilled, uneducated, unintelligent, and immature, nonviolent criminals are likely to be perceived as more educated and deemed intelligent and smart. Taking these literatures into consideration suggests that exonerees who have been wrongfully convicted of violent crimes such as murder, and continue to be associated with violent crimes, may be perceived as unintelligent. On the other hand, exonerees who have been wrongfully convicted of nonviolent crimes, such as grand theft auto, seem less likely to be perceived as unintelligent.” (pp. 342–343)

“Based on extant literatures, we tested the perspective that exonerees who have falsely confessed and exonerees wrongfully convicted of a violent crime would be perceived as unintelligent and these intelligence perceptions, in turn, would predict perceptions that these exonerees’ suffered from mental health issues. Furthermore, we tested the possibility that perceiving exonerees’ as suffering from mental health issues could, subsequently, predict a reluctance to fully embrace exonerees’ innocence. Support for taking this sequential approach is offered by research establishing the strong relationship between people’s perceptions associating those with mental health issues as threatening and dangerous—perceived associations that have become stronger despite people reporting better understanding of mental health issues. […] We further tested the potential that any change in people’s perceptions of the exoneree and uncertainty of the exoneree’s innocence could ultimately influence people’s willingness to support reintegration services for the exoneree. Accordingly, this is the first research to test the possibility that intelligence and mental health perceptions can serve as underlying mechanisms that drive people’s distrust of exonerees’ innocence and unwillingness to fully support reintegration services. (p. 343)

“Based on the reviewed literatures, two hypotheses were examined. Although the following hypotheses are framed in terms of support for reintegration services as the outcome, three separate reintegration outcomes—psychological counseling, career counseling, and job training—were used. Each reintegration outcome was tested separately in an attempt to provide a more nuanced understanding of how people’s perceptions and judgments relate to specific reintegration aids. The False Confession hypothesis predicted that wrongful convictions stemming from a false confession, compared to mistaken eyewitness identifications, would result in (a) the exoneree being perceived as less intelligent, which would subsequently undermine people’s (b) perceptions of the exoneree’s mental health, and, in turn, their (c) willingness to fully acknowledge the exoneree’s innocence, and, consequently, (d) their willingness to fully support reintegration services for the exoneree. The Murder hypothesis predicted that wrongful convictions based on murder, compared to grand theft auto, would result in (a) the exoneree being perceived as less intelligent, which would subsequently undermine people’s (b) perceptions of the exoneree’s mental health, and, in turn, their (c) willingness to fully acknowledge the exoneree’s innocence, and, consequently, (d) their willingness to fully support reintegration services for the exoneree.” (p. 343)

Participants: 253 individuals (44.3% women) – mean age of 34.46 years with a standard deviation of 9.87; the majority were White. Participants were recruited using Amazon MTurk website.

“The study used a 2 (evidence: false confession vs. eyewitness misidentification) X 2 (crime: murder vs. grand theft auto) between-subjects design. Participants were randomly assigned to read one of four news stories regarding a wrongfully convicted man named Chris. Some participants read that Chris was wrongfully convicted of murder while others read that Chris was wrongfully convicted of grand theft auto. Whereas some participants were informed that Chris was wrongfully convicted based on a false confession, other participants were informed that Chris was wrongfully convicted based on a mistaken eyewitness identification. Participants’ offered their perceptions of Chris’s intelligence and mental health, guilt judgment and confidence in this judgment, willingness to support three reintegration outcomes (i.e., psychological counseling, career counseling, and job training), and then responded to informational and attention check items and demographic information.” (pp. 343–344)

“The results of this research extend the literatures bearing on wrongful convictions and are the first to illustrate underlying mechanisms that contribute to the obstacles many exonerees continue to face after release. The observed effects indicated that wrongful convictions stemming from false confessions initiate a series of processes that culminate in a decreased willingness to support efforts to help the exoneree reintegrate into society. People who were informed that an exoneree had falsely confessed perceived the exoneree as less intelligent which, in turn, was associated with people’s subsequent perceptions that the exoneree suffered from mental health issues, was not entirely innocent, and was less deserving of psychological and career counseling and job training.” (p.348)

“The observed effects also indicate that people’s perceptions of those they characterize as having mental health issues extend to culpability judgments. One possible reason, as alluded to earlier, stems from people’s perceptions connecting mental health issues with dangerousness, threat, and social distance. People may judge individuals who they perceive to have mental health issues as more culpable in order to justify incarcerating or committing these individuals to mental health units as ways to maintain order and safety. Although only approximately three percent of violent crimes are committed by individuals with a nonsubstance abuse related mental health issue, people continue to perceive mentally ill people as dangerous and violent. People who characterize an exoneree who falsely confessed as suffering from mental health issues may then continue to believe the exoneree is dangerous and violent and may resist believing the exoneree is entirely innocent as a way to maintain social distance and defend continued incapacitation.” (p. 349)

“Exonerees continue to face many obstacles upon release. One factor that can lead to wrongful convictions—false confessions—was found to prompt a process that motivates people to perceive the exoneree as less intelligent, likely suffering from mental health issues, not entirely innocent, and less deserving of reintegration services. These findings contribute to a growing literature establishing the need for, and use of, empirically based policy reforms to help the growing exoneree demographic. Building awareness of the issues leading to wrongful convictions, factors that contribute to exonerees’ struggles after release, and reforms that effectively help them rematriculate into society is imperative going forward.” (p. 350)

Translating Research into Practice

“The results of this study further demonstrate that people have reservations about supporting reintegration services for exonerees, particularly those who have falsely confessed. Perhaps because reforms and legislation have not mirrored the pace of exonerations, many states do not have explicit policies that address providing reintegration services for exonerees. Indeed, only 32 states, Washington, DC, and the federal government have statutes specifically for instances of wrongful conviction […] Policies need to be developed across the US that are supportive and overcome decision makers’ biases in order to beneficially aid all exonerees’ journeys to reintegrate back into their communities and rebuild their lives.” (p. 349)

“Accordingly, policies should be developed that guarantee exonerees access to reintegration services. The idea of providing automatic access to such services is especially important given the biases exonerees who have falsely confessed will face. Automatically providing all exonerees reintegration services circumvents such biases. […] many individuals who are released from prison struggle with mental health issues and exonerees struggle with unique psychological issues related to their wrongful conviction. Precluding certain exonerees (i.e., those who have falsely confessed) from guaranteed access to services constrains their ability to overcome any mental health issues engendered by the wrongful conviction.” (p. 349)

“Guaranteeing access to reintegration services is also critical to reducing the likelihood of future offenses because a fair percentage of exonerees who are released without access to reintegration services (~ 38%) commit at least one crime after release. […] In summary, when exonerees falsely confess and the wrongful conviction is based (fully or partly) on the confession, people remain reluctant to endorse supporting these individuals and some states in the US prevent these individuals from accessing reintegration services. Consequently, these exonerees are not able to obtain needed psychological services and training to become functioning members of society and are at an increased risk of becoming actual offenders.” (p. 349)

“Another straightforward policy recommendation focuses on guaranteeing that exonerees’ records are expunged of the wrongful conviction. Problematically, almost a third of one sample of exonerees found that exonerees’ records were not purged. […] Failures to expunge exonerees’ wrongful convictions provide an official record that people can search and use to defend stigmatizing and discriminating against some exonerees. A failure to expunge their record, due to living in a state that has a contributory provision preventing the false confessor from expungement, corroborates and reinforces the biased perceptions that may undermine professionals’ willingness to provide job training, career advice, and mental health services. […] In order to eschew such barriers and potential problems for exonerees, their wrongful conviction should automatically be expunged upon release regardless of contributory provisions.” (pp. 349–350)

Other Interesting Tidbits for Researchers and Clinicians

“Although the current research extends the literature on wrongful convictions and exonerees, there are some limitations that would be beneficial for future research to address. Being wrongfully convicted of murder did not initiate the series of negative perceptions and beliefs to the magnitude that was expected. Yet, the ability of certain crimes to precipitate negative perceptions and beliefs should be further investigated. It could be the case that certain crimes, regardless of perceived severity, only matter to the extent that they interact with other factors associated with the wrongful conviction.” (p. 350)

“Participants’ continued belief of the exoneree’s guilt was assessed using a combined measure of a binary culpability judgment multiplied by participants’ confidence in the judgment. This approach results in an outcome ranging from completely confident in the exoneree’s guilt (– 9) to completely confident in the exoneree’s innocence (+9). Overall, participants’ guilt-confidence judgments were positive indicating that, on average, people’s judgments trended more innocent than guilty. Nonetheless, this finding shows that people’s judgments were not all at + 9 (i.e., 100% confident in the exoneree’s innocence). This finding is troubling because, despite being informed that the exoneree was factually proven innocent via DNA evidence, participants did not, on average, believe the exoneree was entirely innocent. Furthermore, people were especially unwilling to entirely concede that the exoneree was innocent when he falsely confessed to the criminal wrongdoing. The fact that all participants’ guilt-confidence judgments were not at + 9 is meaningful because of its strong impact on people’s willingness to support necessary and important reintegration services for the exoneree. It would be beneficial for future research to precisely capture what degree people’s culpability beliefs have on people’s behaviors who heavily influence exonerees’ outcomes.” (p. 350)

“This research established some mechanisms that motivate several difficulties exonerees continue to face upon release. Still, many important questions remained unaddressed. One issue not addressed by this research is the ability of other risk factors associated with wrongful convictions (e.g., police and prosecutorial misconduct) to initiate a similar process that perpetuates the difficulties exonerees face. A related issue is the degree to which people are cognizant of their beliefs and judgments and the influence those beliefs and judgments have on exonerees. Identifying the degree to which both conscious and nonconscious beliefs and judgments influence people’s perceptions of, and behaviors toward, exonerees is imperative to developing effective policy reforms to help exonerees.” (p. 350)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.

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Locally- v. globally-developed actuarial tools and professional judgment in predicting sexual recidivism

When assessing risk for sexual recidivism, use of actuarial tools that were developed using relevant local samples—as opposed to professional judgment and global actuarial tools—is recommended. This is the bottom line of a recently published article in Law and Human Behavior. Below is a summary of the research and findings as well as a translation of this research into practice.

Featured Article | Law and Human Behavior | 2018, Vol. 42, No. 3, 269–279

The Home-Field Advantage and the Perils of Professional Judgement: Evaluating the Performance of the Static-99R and the MnSOST-3 in Predicting Sexual Recidivism

Authors

Grant Duwe, Minnesota Department of Corrections, St. Paul, Minnesota
Michael Rocque, Bates College

Abstract

When sex offenders in Minnesota are assigned risk levels prior to their release from prison, correctional staff frequently exercise professional judgment by overriding the presumptive risk level per an offender’s score on the Minnesota Sex Offender Screening Tool – 3 (MnSOST-3), a sexual recidivism risk-assessment instrument. These overrides enabled us to evaluate whether the use of professional judgment resulted in better predictive performance than did reliance on “actuarial” judgment (MnSOST-3). Using multiple metrics, we also compared the performance of a home-grown instrument (the MnSOST-3) with a global assessment (the revised version of the Static-99 [Static-99R]) in predicting sexual recidivism for 650 sex offenders released from Minnesota prisons in 2012. The results showed that use of professional judgment led to a significant degradation in predictive performance. Likewise, the MnSOST-3 outperformed the Static-99R for both sexual recidivism measures (rearrest and reconviction) across most of the performance metrics we used. These results imply that actuarial tools and home-grown tools are preferred relative to those that include professional judgment and those developed on different populations.

Keywords

risk assessment, recidivism, sex offender, MnSOST-3, Static-99R

Summary of the Research

“Meta-analyses have indicated the average recidivism rate for sex offenders tends to be around 13% within 4–5 years, which is lower than estimates made by the public. This does not mean, of course, that sex offenders necessarily represent a low threat to public safety, because sexual offending is often seen as more dangerous and potentially damaging than are other types of criminal acts. Yet, not all sex offenders are created equally, for some are more at risk for sexual recidivism than are others.” (p. 269)

“Because sex offenders do not represent a monolithic class of high-risk offenders but rather vary tremendously with respect to recidivism risk, assessing their sexual recidivism risk is important for guiding treatment strategies and improving public safety. Given that research has demonstrated that clinical judgment does a poor job in predicting recidivism, a number of actuarial risk-assessment tools have been created specifically to classify sex offenders. […] Although risk-assessment tools have long been utilized, the ongoing revisions to the primary tools available suggest they are works in progress. Among the unresolved issues within the sex offender risk-assessment literature, there are two in particular that have received relatively little empirical scrutiny to date. First, even though it is now generally accepted that actuarial instruments outperform clinical judgment in predicting recidivism, the question of whether clinical judgment is a useful supplement to actuarial tools remains open. […] Second, it is unclear whether tools developed and validated specifically for one population are appropriate or as effective for other populations.” (p. 269–270)

“To address these questions, we analyzed sexual recidivism outcomes over a 4-year follow-up period for 650 sex offenders who had been scored on both the Static-99R and the Minnesota Sex Offender Screening Tool–3 prior to their release from Minnesota prisons in 2012. […] Although most of the sex offenders in our sample received a presumptive risk level according to their MnSOST-3 score, MnDOC [Minnesota Department of Corrections] staff can override the MnSOST-3 and assign a different risk level based on their professional judgment. The presence of these overrides enabled us to assess whether the use of professional judgment, in addition to actuarial tools, increases the accuracy of classification decisions. Moreover, because the 650 offenders were each assessed on the Static-99R and the MnSOST-3, we compared the predictive performance of these two instruments to determine whether there is a home-field advantage in sex offender risk assessment. Finally, we carried out a comprehensive assessment of predictive performance by using six different metrics.” (p. 270)

“Research has shown that clinical observations are relatively ineffective in discriminating between those who present higher from lower risk of reoffending. Studies evaluating the performance of actuarial tools and unguided clinical observation have tended to indicate clinical observation degrades predictive ability. […] In analyses of whether professional overrides improve predictive performance, research has also suggested actuarial tools work best without such changes. […] Although actuarial instruments generally outperform clinical judgment, their overall performance in predicting recidivism has varied widely across validation studies. Therefore, the question remains as to whether clinical judgment remains a useful tool for practitioners in the face of uncertainty or when information not considered by actuarial instruments is available. […] Some have suggested that due to the highly political nature of sex offender management, as well as the highly variable nature of the population, some degree of professional judgment is needed. Others, however, have suggested that risk-assessment approaches using actuarial tools often fail to translate to risk reduction. […] Whether some degree of “judgment” is necessary or even practical as a supplement to actuarial tools has not been determined.” (p. 270)

“Prior to their release from prison, sex offenders in Minnesota are assigned risk levels, which, in turn, determine the extent to which the community will be notified. Prisoners subject to predatory offender registration are assigned a risk level prior to their release from prison by an End of Confinement Review Committee (ECRC), which is composed of the prison warden or treatment facility head where the offender is confined, a law enforcement officer, a sex offender treatment professional, a caseworker experienced in supervising sex offenders, and a victim services professional. Following the ECRC meetings, sex offenders are assigned a Level 1 (lower risk), Level 2 (moderate risk), or Level 3 (higher risk). […] Before receiving a risk-level assignment from ECRCs, offenders are assessed for sexual recidivism risk by MnDOC staff from the Risk Assessment/Community Notification (RACN) unit. […] In assigning risk levels, ECRCs consider scores from actuarial risk-assessment tools as well as additional factors that ostensibly increase or decrease the risk of reoffense (e.g., an offender’s stated intention to reoffend following release or a debilitating illness or physical condition). As a result, ECRCs may override the risk level suggested by the risk-assessment tool. […] ECRCs overrode the MnSOST-3’s presumptive risk level in roughly half the cases involving offenders released from prison in 2012.” (p. 270–271)

“Actuarial tools, which draw upon a combination of empirically informed measures to create an overall risk score, can provide both absolute and relative risk assessments of offenders. Relative risk assessment simply provides information concerning whether an individual is more or less likely to reoffend than are others. Absolute risk assessment, on the other hand, provides an estimate of how likely it is that the individual will reoffend within a specific period of time. […] Estimates of absolute recidivism risk, however, are influenced by the base rate observed within the offender sample used to develop an instrument. […] In addition to the base rate, other differences between a tool’s development sample and the population on which the instrument is administered could potentially affect predictive validity. […] [It is imperative] to ensure tools are effective in populations outside of those in which they were developed.” (p. 271)

“One of the earlier actuarial tools developed was the MnSOST, which was updated to the MnSOST-3. […] In 2012, Duwe and Freske (2012) significantly revised the MnSOST–R with their development of the MnSOST-3. The sample used to develop the MnSOST-3 consisted of 2,535 sex offenders released from Minnesota prisons. […] The most popular tool in North America among criminal justice agencies is the Static-99, developed in the 1990s and updated to its Static-99R version. […] Originally developed using data from samples of sex offenders in Canada and the United Kingdom, the Static-99 is a “global” risk-assessment instrument that is the most widely used around the world. […]” (p. 276, 271–272)

“Our overall sample consists of 650 sex offenders released from Minnesota prisons in 2012 who had been scored on both the MnSOST-3 and the Static-99R. […] In comparing professional judgment with actuarial assessments in predicting recidivism, we used a subsample of 441 cases from the overall sample of 650 offenders. […] The predicted outcome in this study is sex offense recidivism, which we measured as a rearrest and reconviction. Consistent with the development of the MnSOST-3, we measured recidivism over a 4-year follow-up period from the date of the offender’s release from prison in 2012. Recidivism data were collected on offenders through December 31, 2016.” (p. 272)

“Among the 650 sex offenders in this study, 26 (4.0%) were rearrested for a new sex offense within 4 years of their release from prison in 2012. Of the 26 who were rearrested, 13 (2.0% of the 650) were reconvicted.” (p. 273)

“This study directly compared the MnSOST-3 and the Static-99R within a sample of Minnesota sex offenders who were scored with each tool. Findings demonstrated that the MnSOST-3 performed better than did the Static-99R on virtually all the metrics we used for both measures of sexual recidivism. Moreover, we examined the impact of professional judgment or clinical override on classification decisions by comparing the performance of presumptive and assigned risk levels in predicting sexual recidivism. If the ECRC overrides, which are professional judgment supplements to the actuarial tool, add incremental predictive validity, this would be evidence of the value of professional judgment. However, our results indicated unequivocally that clinical judgment in the form of overrides decreased predictive performance, which offers additional evidence that empirically based actuarial tools are superior to professional judgment.” (p. 276)

“It is interesting that the literature seems clear that professional judgment performs worse than do actuarial methods irrespective of the background of the professional making the observation or whether that judgment is structured or unstructured. This is true even for clinical judgment used in combination with actuarial tools. Some research has noted that raters are unfamiliar with or do not use base rate information appropriately in assigning risk. Another possibility is that judgment, whether structured or not, necessarily involves a higher degree of subjectivity than do actuarial measures and therefore are poorer in terms of prediction. Finally, it may be the case […] that clinical judgment often utilizes factors that are not related to recidivism.” (p. 276)

Translating Research into Practice

“Our study holds several important implications for research, policy, and practice. […] Given that the MnSOST-3 outperformed the Static-99R for our sample of Minnesota sex offenders, the results suggest local instruments may have a home-field advantage. To be sure, there are differences between the two instruments in terms of the items included and the classification methods used to develop the tools. In fact, to better demonstrate whether local instruments have a home-field advantage over global assessments, future research should attempt to more effectively isolate the effects of using a customized assessment compared to an imported instrument. Still, the evidence presented here suggests there may be value in applying an instrument to the same, or at least similar, population on which it was developed and validated.” (p. 277)

“In our view, home-grown instruments developed and validated within a particular population are the best option when considering tools for that population. Of course, many jurisdictions will not have a validated actuarial tool that was customized specifically for their own offender populations. In that case, universal tools (i.e., those developed using several populations, such as the Static-99 family) may be a good option, although such tools should be developed and validated on samples that are truly universal. Put another way, the population on which an instrument is being used should be very similar to the one on which the assessment was developed and validated. When a global instrument is used, it cannot be assumed the tool will deliver the same performance for a different assessment population. […] To understand whether a particular tool is effective with an agency’s population, one must evaluate the tool’s predictive performance on that population.”

“Our findings provide one more “nail in the coffin” for the value of clinical judgment in making recidivism predictions. Although some evidence exists that certain factors (dynamic ones in particular) may improve tools like the Static-99, the vast majority of empirical research has demonstrated that actuarial tools significantly outperform professional judgment. This does not mean clinical judgment is not important for the purposes of guiding treatment. Rather, when sex offenders are classified for recidivism risk-assessment purposes, actuarial tools should be the preferred method.” (p. 277)

“Given the consistently demonstrated superiority of actuarial assessments in predicting recidivism, we suggest it may be prudent to limit the extent to which professional judgment is used. Reducing the use of clinical judgment may involve restricting not only the types of cases in which overrides would be admissible but also how much an override would be allowed to deviate from an actuarial assessment. […] To develop guidelines that provide greater structure and clarity on when overrides are permissible, future research is needed to examine the conditions under which clinical judgment actually improves classification decisions or, at a minimum, does no worse than do actuarial assessments.” (p. 277)

Other Interesting Tidbits for Researchers and Clinicians

“Existing research on the validation of sex offender risk-assessment tools has often relied a single metric—namely, the AUC. As we noted earlier, the AUC has its strengths, but it also has some weaknesses. We suggest that future validation research begin using alternative measures of predictive discrimination such as Hand’s (2009) H measure and the precision-recall curve. But given that predictive discrimination addresses only one dimension of predictive validity, metrics that assess accuracy and calibration should also be used to provide a more comprehensive evaluation of predictive performance. As this study illustrates, accuracy metrics are informative for imbalanced data sets so long as there are at least some predicted positives in the data set. Moreover, if researchers and practitioners must rely on a single metric, we suggest that either the SAR or SHARP statistics would be preferable because both tap into multiple dimensions of predictive validity.” (p. 277)

“The AUC values for both the Static-99R and MnSOST-3.1 were lower in comparison to what most of the existing research has reported for either instrument. Much of this research, as we indicated earlier, has consisted of assessments that were scored for research purposes. In this study, we used assessments that had been scored by correctional staff for operational purposes, which provide what is arguably a truer test of predictive performance. Compared to field assessments, those administered strictly for the sake of research may yield overly optimistic estimates of predictive performance due to more favorable conditions in which raters are likely to have had more recent, thorough training. To provide a more realistic estimate of how sex offender risk-assessment tools perform in practice, future research should begin relying more on assessments performed by field staff. In addition, the results suggest that caution may be warranted in using an instrument whose predictive performance has yet to be evaluated on real-world assessments” (p. 277)

“Due to several limitations, however, these findings should be regarded as somewhat preliminary. First, because our study was confined to sex offenders from a single jurisdiction, it is unclear the extent to which the findings are generalizable. Second, the sample we used was relatively small (N = 650), and it was limited to releases over one calendar year. Third, similar to the case in prior research, the better findings for the MnSOST-3 may reflect an “allegiance effect” in which its scoring and use by MnDOC staff has been more consistent with its design in comparison to the Static-99R.” (p. 276)

Join the Discussion

As always, please join the discussion below if you have thoughts or comments to add!

Authored by Kseniya Katsman

Kseniya Katsman is a Master’s student in Forensic Psychology program at John Jay College of Criminal Justice. Her interests include forensic application of dialectical behavior therapy, cultural competence in forensic assessment, and risk assessment, specifically suicide risk. She plans to continue her education and pursue a doctoral degree in clinical psychology.