Maximillian Wachtel, Ph.D. - Forensic Psychology

Jared Loughner is Still Incompetent to Stand Trial

2012-02-07T11:01:00.000-08:00

Here is a link to an LA Times article about Jared Loughner's current mental state:

Jared Loughner Making "Progress" Toward Standing Trial, Judge Says

The judge still considers him incompetent to proceed, which means he does not possess the ability to consult with his legal team to aid in his defense and/or he does not have a "rational and factual understanding" of the criminal proceedings. However, it appears that the mental health experts who are treating him think he is improving with his court-ordered antipsychotic medication. It is quite possible that, within the next 6-8 months, the judge will rule that he is competent to proceed, and he will then face all 49 felony counts against him.

It is important that the judge make certain that Loughner is competent prior to proceeding with the case. If he is convicted on any of his charges and later appeals, arguing that his Constitutional Rights were violated because he was not competent to stand trial, all of his convictions could be overturned and he would need to be immediately released.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
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Danger to Others?

2012-01-19T08:53:00.000-08:00

A student of mine at the University of Denver raised an interesting question recently: If a therapy client tells you he is going to rape someone after his session with you, do you have an ethical or legal obligation to do something about it?

At first glance, the answer seems obvious. As a decent human being, of course you would have an obligation to try to prevent a rape. Unfortunately, the answer is not that simple. As a therapist, you need to consider three different factors: 1) Confidentiality, 2) Danger to Self/Others, and 3) Duty to Protect.

1) Confidentiality. In Colorado (and most other states), therapists are required to keep almost all information provided by a client confidential. Legally, therapists are not allowed to break confidentiality unless the client is a danger to him/herself, a danger to others, or in cases of court orders. In addition, suspected child abuse needs to be reported, and therapists are allowed to use a therapy client's records to defend themselves if the client sues them for malpractice.

That's it. Those are the only times a therapist can break confidentiality. Past crimes cannot be reported (remember how Tony Soprano would tell his psychiatrist all of the illegal things he had done AFTER he did them?). Most future crimes cannot be reported either, unless the client is in danger of harming someone else, which leads to...

2) Danger to Self/Others. In Colorado, "danger" is not well defined. In extreme cases, suicide and homicide are easily considered "danger" and the therapist is justified in breaking confidentiality in order to keep the public safe. But, cutting on one's arms with no intention of committing suicide may not be considered "danger to self." A planned fist fight at 3:30 on the school playground may not be considered "danger to others."

What about rape? Clearly, rape is a heinous act. But, the vast majority of rapes do not end in death. If a therapy client is planning on raping someone in the immediate future, would you consider that to be "danger to others?" If you answered, "Yes" to that question, then you need to move on to...

3) Duty to Protect. In the 1970's, a man named Prosenjit Poddar killed a California woman named Tatiana Tarasoff. Mr. Poddar had told his therapist of his intention to kill Ms. Tarasoff, and her family sued the psychologist because they felt he did not do enough to protect their daughter from this threat. In two landmark cases, the California Supreme Court agreed, and they established a Duty to Protect.

Although this has not been officially tested in most other states, it has become a standard of care for therapists to follow the Tarasoff case Duty to Protect. If a client has the intention to kill an indentifiable victim and has the means to do so, the therapist must take steps to warn and protect the potential victim. That usually involves calling the police, calling the intended victim, and taking other reasonable steps (like telling a school principal or campus safety, given the specifics of the case).

The California Supreme Court wrote, "The protective privilege [i.e. confidentiality] ends where the public peril begins."

So, there is still no clear answer as to whether or not it is legally permissible or legally required to break a therapy client's confidentiality in order to prevent a rape. Ethically, I think it is clear that therapists should try to do everything in their power to stop such a horrible act from occurring. But, does that include warning the intended victim and the police? What would you do?

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com
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End of the Quarter at DU

2011-11-18T10:01:00.000-08:00

I taught my last classes of the fall quarter at the University of Denver yesterday. For those of you who are not familiar with colleges on the quarter system, the fall quarter ends in mid-November and the winter quarter does not start until the beginning of January. It will be a nice, long break!

I taught a counseling theory class for masters students this quarter, along with a legal and ethical issues class for doctoral students. Next quarter, I am going to be teaching two legal and ethical issues classes for masters students.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Radio Interview on 850 KOA

2011-10-01T20:11:00.000-07:00

I was interviewed this morning on the Colorado Weekend show this morning with Chuck and Julie. I talked about the juvenile who murdered his parents and attempted to kill his younger siblings. Here is a link to the podcast:

Colorado Weekend Interview

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

My Latest KDVR Interview

2011-09-29T12:46:00.000-07:00

I was interviewed for this story that aired on KDVR last night. It deals with the 13 year old boy who was convicted of killing his parents and attempting to kill his siblings in Burlington, Colorado:

Burlington Teen Gets 7 Years for Murdering His Parents

Link To My Television Interview From Last Night

2011-08-25T10:12:00.000-07:00

Are teens who use social media more likely to drink or use drugs?

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

I am going to be on Fox 31 News (KDVR) Again Tonight

2011-08-24T15:11:00.000-07:00

I was just interviewed about a recent study from Columbia University that found a correlation between teens' use of social media and their likelihood to try alcohol, cigarettes, and drugs. Tune in at 9:00 P.M. (MDT) to see what I have to say!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Testified in Federal Court

2011-07-27T12:49:00.000-07:00

I testified in Federal Court last week on an interesting case. The defendant was in the process of undergoing a competency evaluation and was claiming to have Dissociative Identity Disorder (this disorder used to be referred to as Multiple Personality Disorder). DID is an extremely rare disorder, and it is difficult to assess.

I was not the competency evaluator assigned to the case, but the court requested that I complete psychological testing in order to help the competency evaluator come to an opinion regarding the defendant's competency.

I administered a full battery of psychological tests, including tests for DID and for malingering. As it turns out, this particular defendant was malingering, or faking DID in order to potentially lessen his legal troubles.

I testified to this effect in court. Of course, the defense vigorously cross examined me, attempting to discredit my qualifications and the evaluation I had conducted. The defense attorney was aggressive, but he was also fairly nice, and I did not get the sense that he was being overly hostile.

Unfortunately for the defense, the judge thought I did a thorough job and accurately interpreted the data I collected. He believed the defendant did not have Dissociative Identity Disorder and ruled that he was competent to proceed.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

New Practicum Students Starting Next Week

2011-07-01T08:40:00.000-07:00

I am excited to have four great doctoral students who will be starting their practicum at my office next week. They are going to help me with psychological testing and legal research. This is the sixth year I have had students work and learn with me, and it has been a great experience.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Excited About Continuing Education

2011-06-24T09:08:00.000-07:00

I just signed up for two continuing education classes through the Colorado Bar Association. One is "Examining Doctors at Deposition and Trial," and the other is "Delivering a Killer Cross Examination." I am thinking of the latter as "What to do if you are an expert and the opposing attorney is delivering a killer cross examination."

I am excited about the classes. They are designed for attorneys, but they will most definitely be applicable to my line of work.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Jared Loughner Ruled Incompetent to Stand Trial

2011-05-31T09:38:00.000-07:00

Here is a link to an NPR story about Jared Loughner's incompetence to stand trial:

In Federal Court, a person who is competent to stand trial must meet the Dusky Standard: The defendant must have sufficient present ability to 1) consult with his lawyer with a reasonable degree of rational understanding along with 2) a rational as well as factual understanding of the proceedings against him.

In Colorado, the competency standard is worded slightly differently, but it is essentially the same two-pronged approach. The defendant must have a "mental disability" or "developmental disability" that prevents him from meeting something very similar to the Dusky Standard.

For Mr. Loughner, a psychologist and a psychiatrist independently concluded that he had Schizophrenia (a mental disease or defect) that kept him from being able to consult with his lawyer (he thinks his lawyer is part of a conspiracy against him) and kept him from being able to have a rational understanding of the courtroom proceedings (he likely cannot make rational decisions about court-related matters such as entering a plea or waiving rights due to his Schizophrenia). Neither the defense nor the prosecution objected to the doctors' opinions and the judge ruled Mr. Loughner to be incompetent.

It is important to note that being ruled incompetent is not a free pass. It is not a legal defense, and it is not a plea (like the plea of not guilty by reason of insanity).

Instead, being found incompetent is a matter of legal fact. It accomplishes two things: 1) It protects the defendant's civil rights (the idea being that one's civil rights are violated if the defendant cannot understand those rights) and 2) It insures that the defendant will be put on trial and face adjudication. A defendant who is actually incompetent but who faces trial and is found guilty has grounds for an appeal. If the guilty verdict is overturned because it was determined that the incompetent defendant's rights were violated, that defendant is free and cannot be tried again for the same crimes.

I am sure Mr. Loughner's prosecuting attorneys understand this, which is why they did not object to the judge's ruling that Mr. Loughner is presently incompetent. They want to do everything perfectly so he does not have a case to appeal to a higher court.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Another Television Interview

2011-05-25T08:23:00.000-07:00

Here is another news story where I was interviewed. This is a sad case where a mother is accused of murdering her two children. She was arrested over the weekend in Castle Rock, Colorado.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

My Interview on Fox 31 News

2011-05-11T08:50:00.000-07:00

I was interviewed on Fox 31 News (KDVR) on Sunday, May 8 about the Osama bin Laden videos:

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

New List Serve Available

2011-04-07T11:57:00.000-07:00

I just created a new listserve for psychologists, psychiatrists, mental health workers, and attorneys. I thought it would be an interesting way to share information with and ask questions of individuals who are involved with mental health assessments for the court.

In order to subscribe, send an e-mail to:
coforensicpsych-subscribe@yahoogroups.com.

More Court Testimony

2011-02-10T11:11:00.000-08:00

I testified in court in Denver County yesterday afternoon. This was another contested competency evaluation. There was another psychologist and a psychiatrist who also testified at the hearing. I was sequestered, so I have no idea what they said on the stand, and I do not know the outcome of the hearing.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Court Testimony

2011-02-07T09:37:00.000-08:00

I testified as an expert last week in Arapahoe County. It was a contested competency hearing for a juvenile, and the magistrate agreed with my opinion that the defendant was competent to proceed with the case.

This was a tricky case with a lot of gray area. But, Colorado State Law is very clear--a defendant either needs to be competent or incompetent. There is no such thing as semi-competent.

On the stand, I felt I was able to explain the gray area and articulate my concerns regarding the defendant's limitations, while at the same time explaining my rationale for coming to the conclusion that juvenile was competent to proceed. It was nice to get the validation from the magistrate that I had explained myself well.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Two Days, Four Jails

2011-01-23T13:41:00.000-08:00

On Wednesday and Thursday of last week, I spent a grand total of 12 hours in four different jails. Denver County, Arapahoe County, Jefferson County, Adams County.

This week, I need to go to the Jefferson County Jail and the Adams County Jail (twice).

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Malingering (Faking) Mental Illness

2010-12-15T09:39:00.000-08:00

I recently had a phone conversation with a defense attorney where I had to explain that her client lied to me in my evaluation of him. If I were to testify in his case right now, I would have to say the defendant was malingering mental illness (the DSM-IV-TR definition of malingering is as follows: "Intentionally pretend[ing] to have symptoms of mental or physical illness to achieve financial or other gain or to avoid criminal conviction or unwanted duty. [Individuals] may also malinger to facilitate escape from captivity or incarceration" [quoted directly from the DSM-IV-TR, published by the American Psychiatric Association]).

Testing for malingering is an important aspect of forensic assessment. There is often a huge incentive for a defendant to come across as more mentally ill than he/she actually is. A defendant can potentially receive a shorter sentence or be found not guilty by reason of insanity, for example. Thus, it is crucial for forensic psychologists and psychiatrists to consider the possibility of malingering in just about every evaluation they conduct.

In fact, I am about to leave my office and drive to the Arapahoe County Jail, where I will conduct an evaluation specifically to determine whether or not a defendant is malingering mental illness in order to appear incompetent to proceed with his trial.

Thanks for reading-- Max Wachtel, Ph.D.

www.CherryCreekPsychology.com

Fire Alarm at the Jail

2010-11-19T09:38:00.000-08:00

I was at the Denver County Jail yesterday, and the fire alarm sounded right after I checked in to evaluate an inmate. I had just given the deputy my driver's license, cell phone and car keys, and then I was immediately escorted out of the building.

I had no idea if there was an actual fire or how long it would take for me to get my id and car keys back. And, there was no way for me to call anyone to let them know it might be hours before I could leave.

Fortunately, it was a false alarm and we were back in the building after about five minutes.

Thanks for reading-- Max Wachtel, Ph.D.

www.CherryCreekPsychology.com

Fired Because of Facebook?

2010-11-10T08:46:00.000-08:00

A Connecticut woman was fired in late 2009 because she posted a disparaging comment about her boss on Facebook. She then traded comments with several fellow employees about her initial post. Her employer then fired her.

The National Labor Relations Board is now suing her employer, arguing that Federal law has held for some time that employees must be protected from reprisal after talking about the workplace on their own time. The woman who was fired was not at work when she posted her comments, and she was using her personal computer.

I suppose the argument for firing her might be that a a few coworkers complaining about their boss at a restaurant is different than creating a permanent, electronic record of such complaints that is accessible to thousands (possibly hundreds of thousands) of people.

Here is a link to the story: http://www.msnbc.msn.com/id/40097443/ns/business-personal_finance/

It will be interesting to see how this plays out in court.

Thanks for reading-- Max Wachtel, Ph.D.

www.CherryCreekPsychology.com

New Office Lease

2010-11-06T14:02:00.001-07:00

Next week, I will sign a new three-year lease on my current office space. It is hard to believe I have been in the same building for six years already.

Expert Witness Testimony Training

2010-10-01T12:24:00.001-07:00

I just attended a great training this morning on expert witness testimony, which included practical examples of what to say/what not to say, and an extensive review of the Colorado rules of evidence and procedure. Some of what I learned was a good review, and some was brand new. It was a great way to spend a Friday morning!

Exciting New Position at the University of Denver

2010-08-31T12:14:00.000-07:00

I am excited to announce that I have just accepted a one-year appointment as a faculty lecturer in the Counseling Psychology Program at the University of Denver. I have been teaching for DU since 2001, and for the next year, I will be teaching more classes and taking on some responsibilities of the training director.

I will continue with my private forensic practice as well, which means I am going to be a lot busier over the next school year.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Recent Court Decisions

2010-08-29T07:48:00.001-07:00

I have testified three times since I last posted. I testified for the prosecution in two Not Guilty By Reason of Insanity (NGRI) cases. In Colorado, psychologists cannot perform sanity evaluations, but I evaluated the defendants for other reasons and was called to testify in those cases. In both cases, I argued that the defendants were malingering (pretending to have a mental illness in order to avoid criminal prosecution). In the first case, the jury found the defendant NGRI anyway. In the second case, the trial ended in a hung jury.

My third testimony was for the defense in a contested competency hearing. I opined that the defendant was incompetent, and the opposing counsel's psychologist thought he was competent. In that case, the judge ruled that the defendant was incompetent, citing the reasons I outlined in my testimony.

You win some, you lose some, I suppose.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

My Waiting Room Magazine Selection

2010-04-29T08:09:00.001-07:00

About two years ago, I started receiving a lot of magazines for my waiting room that I never ordered. At first, I thought I would get two or three promotional issues and then be asked to subscribe. That never happened. I never paid for the magazines, and they never stopped coming to my office. Here is a list of my waiting room offerings (the titles with asterisks are the ones I ordered and pay for):

American Cowboy
Car And Driver
Natural Solutions
More
*Self
*Real Simple
Outside
AARP, The Magazine
*The New Yorker
Architectural Digest
National Geographic
*InStyle
*Shape
The Sporting News
*Time
Boy's Life
Men's Health
Road and Track
Prevention

Thanks to some unknown benefactor, I am willing to bet that I am the psychologist in Denver with the most spectacular array of pre-therapy and pre-assessment reading materials. Nationally, I would put my waiting room magazine selection in the top ten!

Thanks for reading-- Max Wachtel, Ph.D.
www .CherryCreekPsychology.com

Reality Stars Willing to Kill?

2010-04-01T13:48:00.000-07:00

Here is a link to a Washington Post article about a French documentary that convinced a number of people they were on a game show. These people then administered what they thought were potentially lethal electrical shocks to "contestants." Of course, the whole thing was a sham, but it highlights what Milgrim discovered in the 1960's: people are willing to engage in some pretty extreme behaviors. And, we already know people will do amazingly stupid things in order to get onto a reality show.

Reality Show Contestants Willing To Kill

Here is a link to some video: Willing To Kill Video

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

I Am Spending The Night In Jail

2010-03-23T08:35:00.001-07:00

In Mid-April, 2010, the new Denver County Jail will open for business. It is part of the larger justice center that is one block to the west of the City and County Building.

A small group of individuals has been given the opportunity to spend the night in the jail prior to its opening. So, on April 10 around 4:30 P.M., I will get booked in and spend the night in one of the minimum security wings. I believe they will feed me dinner, let me tour the facility, turn the lights off at midnight and offer to provide me with a free jailhouse tattoo (I am not certain about that last one...). With good behavior, I will be released the next morning around 7:00 A.M.

Although a little on the artificial side, I think it will be good to approximate the experience a large majority of my clients have had.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Man Tries To Open Airplain Door While In Flight

2010-01-28T14:10:00.000-08:00

Here is a link to a story about the man who tried to open an airplane door mid-flight last week:

Plane Makes Emergency Landing At DIA After Disturbance

The man was released from custody for a medical evaluation. I would love to be able to meet with him and see what was going on.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Innocent Until Proven Guilty?

2010-01-21T13:10:00.000-08:00

I had a defendant tell me something interesting today: "In this country, you aren't innocent until proven guilty. You are guilty until proven wealthy."

On a somewhat related note, I have always been bothered by the phrase "innocent until proven guilty." To me, the word "until" makes it sound like a defendant is definitely going to be proven guilty. He/she should only be considered innocent until he/she is proven guilty.

It seems that a more appropriate phrase would be "innocent unless proven guilty."

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Back to Jail

2010-01-21T06:19:00.000-08:00

I spent yesterday morning in the Denver County Jail, and I am going to be in the Arapahoe County Jail this morning. Such is the life of a forensic psychologist!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

2009 Year End Numbers

2010-01-04T15:03:00.000-08:00

The official numbers are in:

In 2009, I conducted/supervised 203 evaluations for legal disability, 23 competency evaluations, and 63 court-ordered mental health evaluations for Denver Metro courts.

It was a great, busy 2009, and I am looking forward to another great year!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Denver County Jail

2009-12-28T14:13:00.000-08:00

I am about to leave the office to conduct a presentence mental health evaluation at the Denver County Jail. As always, I am sure it will be interesting.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Overworked Public Defenders

2009-12-23T12:52:00.001-08:00

Here is a link to a story on NPR (you can read the transcript or listen to the audio) on the overtaxed public defender system in Missouri:

Court Urges Public Defenders To Rein In Workload

The story raises some interesting questions about the quality of representation an overworked attorney is able to provide.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Balloon Boy's Parents Get Jail Time

2009-12-23T12:23:00.000-08:00

According to several news sources, a Colorado judge sentenced The Heenes to probation and jail time (90 days for the dad and 30 days for the mom). In addition, the judge barred the Heenes from being able to profit from the incident.

Here is a link to a CNN.com article and video:

CNN.com Video

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

A Defendant Gets 18 Years

2009-12-15T11:30:00.000-08:00

I just recently finished working on a case where I was attempting to provide mitigating evidence for the defense. These are always tough cases, because I want to be helpful to the attorney who hires me, but I often don't find information that is going to be of much use. Sometimes, I actually gather data that ends up being potentially harmful to the defense's position. I hate having to tell defense attorneys that, after a lot of time and money spent, I have nothing for them. But, I do it anyway.

However, in the recent case I mentioned above, I did find information that I thought would offer mitigating evidence at a defendant's sentencing hearing. This was a 19 year-old who pleaded guilty to an assault charge and was facing 10-64 years in prison. His co-defendant received 24 years, but my client received a sentence of 18 years.

I can't be sure, but I think the evidence I found and was able to testify to at his sentencing hearing affected the judge's decision. I was basically able to confirm with psychological data much of what his family members had said about him at the sentencing hearing.

18 years is still a long time, but it felt good to be able to play a part in shortening the defendant's sentence. He definitely did something very bad, but his actions were in part due to some serious mental health issues beyond his control.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

In Court For A Sentencing Hearing This Afternoon

2009-12-07T11:40:00.001-08:00

I will be at the Jefferson County Courthouse this afternoon for a sentencing hearing. I will be testifying as an expert for the defense.

Braving The Snow

2009-12-03T05:53:00.000-08:00

I will be braving the snow this morning and leaving the house early to drive to the Jefferson County Jail. I am working on an evaluation to attempt to find some mitigating evidence for a defense attorney.

Disclaimer: This is not a picture of me "braving the snow." We actually only have about an inch of snow on the ground in Denver. I just thought this picture was more dramatic...

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

What Evidence Can Expert Witnesses Use?

2009-12-02T08:43:00.000-08:00

In 1923, the U.S. Supreme Court decided the landmark case of Frye v. United States. In that case, attorneys were attempting to enter into evidence information from a polygraph test. The Court ruled that scientific evidence can be admissible if it has "gained general acceptance in the particular field to which it belongs." This is sometimes referred to as the "general acceptance" standard.

The Frye decision held until 1993, at which point the U.S. Supreme Court heard Daubert v. Merrell Dow Pharmaceuticals. In this case, the Court unanimously opined that scientific evidence can only be admissible if it meets the following criteria:

It must be subject to empirical testing: the theory or technique must be falsifiable, refutable, and testable.
It must be subjected to peer review and publication.
It must have a known potential error rate.
The existence and maintenance of standards and controls concerning its operation must be in place.
It must, to some degree, conform to theory and technique that is generally accepted by a relevant scientific community.

In 1999, the U.S. Supreme Court further refined its ruling on admissibility of expert testimony. In Kumho Tire Co. v. Carmichael, the Court ruled that the Daubert ruling applies to the three types of knowledge mentioned in Rule 702 (Federal Rules of Evidence), scientific, specialized and technical. Psychological evidence is covered under Daubert.

It is interesting to note that, due to a 1998 ruling in United States v. Sheffer, the Court found that procedures that appear to be valid and reliable must be closely scrutinized using the Daubert standard. Most courts do not consider psychological expert testimony that involves only clinical/medical judgment (i.e., it does not involve tests or assessment procedures) to be subject to the Daubert standard. However, if a psychologist uses tests or assessment procedures that give the appearance of "infallibility," then that testimony's admissibility hinges on whether the procedures meet the Daubert standard.

So, what does this mean? Essentially, a psychologist or psychiatrist can say whatever he/she wants to about a particular case, and it can be entered into evidence as long as that testimony is only based only on the professional's clinical/medical judgment (even if that judgment is absolutely incorrect). As soon as a professional starts using tests and procedures that increase the accuracy of clinical/medical opinions, his/her testimony must be held to a higher standard.

NOTE: The standards I discussed above apply to federal cases only. Many states have adopted similar standards, and are often referred to as "Frye states" or "Daubert states." In Colorado, the decision in People v. Shreck (2001) dictates the following: "Under the standard established in this rule [Rule 702, Colorado Court Rules of Evidence, Testimony By Experts], the trial should focus on the reliability and relevance of the scientific evidence and determine the reliability of the scientific principles, the qualifications of the witness, and the usefulness of the testimony to the jury. In determining the reliability and relevance of the evidence, the court should apply a broad inquiry and consider the totality of the circumstances in each specific case, considering a wide range of factors. Because the applicable standard is so liberal, the court should also apply its discretionary authority under C.R.E. 403 to ensure the probative value of the evidence is not substantially outweighed by unfair prejudice."

In my experience, the Shreck standard allows for the vast majority of the data a psychologist could produce (no matter the quality of the data) to be entered into evidence.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Some Good News

2009-11-17T14:37:00.000-08:00

I received word late last week that the judge in a case on which I've been working made a decision that validated the clinical/legal argument I was making about the defendant (i.e. the judge agreed with me!).

This was a contested competency hearing, and I was of the opinion that the defendant was competent to proceed. The psychologist for opposing counsel, obviously, thought otherwise.

Typically, contested competency hearings last several hours, but this one was fairly complicated and I appeared in court on four separate occasions over a period of 2.5 months. Ultimately, the judge ruled that the defendant was competent to proceed, and the rationale he gave for his ruling was similar to the reasoning I used to form my opinion.

This was a long, stressful case, and it was great to get validation from the court that I was on the right track.

NOTE: The practice of psychologists offering an opinion on the ultimate legal issue (in this case, is the defendant competent?) is controversial, and many forensic psychology experts advise that it is a dangerous practice to do so. However, in Colorado, psychologists and psychiatrists who conduct competency evaluations are required by law to offer an opinion on the competency of defendants.

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Expert Witnesses and Initial Impressions

2009-11-06T11:21:00.000-08:00

I suppose it is no secret that people judge others based on their physical appearance. As humans, we are hard-wired to do this. What is more surprising though, is that most peoples' judgments regarding a person's personality characteristics based solely on physical appearance are reasonably accurate.

In a new study to be published in the Personality and Social Psychology Bulletin (December 2009), researchers found that participants could accurately gauge 9 out of 10 major personality characteristics of individuals by looking at photographs of them. Judgments on extraversion, agreeableness, emotional stability, likability, and self-esteem were all fairly accurate.

So, what might this mean for criminal or civil proceedings? As an attorney, you should consider the professionalism, competence and trustworthiness of your expert witnesses. But you might also want to consider some of their other personality characteristics. If your expert is likable, emotionally stable and high in self-esteem, juries could pick up on those features fairly quickly, even before your expert starts speaking. If your expert is self-conscious, nervous or unlikable, juries could figure that out quickly, too.

You might also be able to give your experts some tips on coming across as self-confident, likable and emotionally stable. Tell them to smile, sit up straight, make eye contact with the jury, and appear willing to answer any question asked of them. Tell them to speak loudly with an authoritative air, and not too quickly.

If you are working with a psychologist as an expert witness, tell him/her to leave the Birkenstocks at home and wear a real pair of shoes...

Here is a link to more information regarding this study: ScienceDaily.net

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

Why Is Daddy Going To Jail?

2009-11-04T09:00:00.000-08:00

This morning, I made the mistake of telling my three year-old daughter that I am going to jail today. It caught me by surprise that she even knew what jail is, let alone that it is VERY BAD for one's dad to go there.

I think I set her straight by explaining that I had not done anything wrong and that I was going to go there for two hours to help someone who had done something wrong.

I am not sure if she actually believes they are going let me out this afternoon, so she should be pleasantly surprised when she sees me at home!

Thanks for reading-- Max Wachtel, Ph.D.
www.CherryCreekPsychology.com

In Court This Afternoon

2009-10-30T11:01:00.000-07:00

I will be in Denver District Court this afternoon, sitting as an advisory witness for the prosecution on a contested competency evaluation. Should be interesting.

Thanks for reading-- Maximillian Wachtel, Ph.D.
www.CherryCreekPsychology.com

Two Interesting Articles on www.Slate.com

2009-10-26T10:48:00.001-07:00

The first has to do with an economics graduate student who discovered that calculation errors caused some Maryland inmates to end up with significantly longer sentences than they deserved (she also discovered that some inmates received shorter sentences):

Errors In Judgment

The second has to do with using Asperger's Syndrome (a developmental disorder similar to Autism, only without the impaired verbal ability...most individuals with Asperger's have problems with obsessive behavior and a lack of social skills) as a legal defense. It sounds like some defendants have successfully used an Asperger's diagnosis to be acquitted or found not guilty by reason of insanity:

The Geek Defense: Do criminals with Aspberger's syndrome deserve special treatment?

Thanks for reading-- Maximillian Wachtel, Ph.D.
www.CherryCreekPsychology.com

What Do Factfinders Hear Expert Witnesses Say?

2009-10-23T14:16:00.000-07:00

In an article published in the October 2009 edition of the journal Law and Human Behavior, researchers Dawn McQuiston-Surrett and Michael J. Saks examined "how variations in the presentation of forensic science information affect factfinders' judgments in a trial." Essentially, they looked at jurors' and judges' responses to expert testimony about matching a hair found at the scene of a murder with hair from the defendant.

Overall, as might be expected, jurors placed more emphasis on the expert testimony and used it in their verdict of guilt than judges did.

However, both judges and jurors were more impressed with expert testimony that had a strong "qualitative" feel to it. For example, if the expert said the hair "matched" the defendant or was "similar in all microscopic characteristics, judges and jurors gave that testimony a lot of weight. They gave less weight to expert testimony stating the defendant's hair was similar to the hair found at the murder scene, although there are a number of people in the community whose hair would also have the same identifying attributes. The "match" or "similar in all microscopic characteristics" testimony sounds much more confident than the "other people have the same microscopic characteristics" approach.

So, what do you do with this information? I suppose the prosecution might want to talk to their expert about asserting their opinions in qualitative, confident ways (without distorting the truth, of course). The defense will want the expert to then discuss the limits of the forensic testing used in cross examination.

Warning for the defense: This same research study found that having experts talk about the limits of testing did not affect jurors' opinions all that much.

Warning for the prosecution: If the defendant opts for a bench trial, this study found that judges do not let the "match" or "similar in all microscopic characteristics" testimony affect their estimation of guilt as nearly as much as jurors do.

Thanks for reading-- Maximillian Wachtel, Ph.D. (maxwachtel@cherrycreekpsychology.com; www.cherrycreekpsychology.com)

research information from:
McQuiston-Surrett, D., Saks, M. J. (2009). The testimony of forensic identification science: What expert witnesses say and what factfinders hear. Law and Human Behavior, 33(5), 436-453, doi:10.1007/s10979-008-9169-1