Forensic Mental Health Assessment A Casebook

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Forensic Mental Health Assessment
A Casebook

Kirk Heilbrun
Geoffrey R. Marczyk
David DeMatteo

1
2002
3
Oxford New York
Auckland Bangkok Buenos Aires Cape Town Chennai
Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata
Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi
São Paulo Shanghai Singapore Taipei Tokyo Toronto
and an associated company in Berlin

Copyright  2002 by Oxford University Press

Published by Oxford University Press, Inc.
198 Madison Avenue, New York, New York 10016
www.oup.org
Oxford is a registered trademark of Oxford University Press
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any means,
electronic, mechanical, photocopying, recording, or otherwise,
without the prior permission of Oxford University Press.

Library of Congress Cataloging-in-Publication Data

Heilbrun, Kirk.
Forensic mental health assessment : a casebook / Kirk Heilbrun, Geoffrey R. Marczyk,
David DeMatteo.
p. cm.
Includes bibliographical references and index.
ISBN 0-19-514568-2
1. Psychology, Forensic—Case studies. 2. Mentally ill offenders—Case studies. 3.
Forensic psychiatry—Case studies. I. Marczyk, Geoffrey R., 1964– II. DeMatteo, David,
1972– III. Title.

RA1148 .H452 2002

614′.1—dc21 2001047644

9 8 7 6 5 4 3 2 1
Printed in the United States of America
on acid-free paper
To my parents, Al and Marian. Thanks for everything.
KH

To my family—Charles, Mary Ann, Keith, Brian, Nina,

and Helene. Your undying support makes this achieve-
ment as much yours as mine.
GM

To my parents, my brother and his family, and my fian-

cée, Christina.
DD
This page intentionally left blank
Preface

There has not yet been a casebook in forensic mental health assessment
(FMHA). Given the growth and important development in the forensic spe-
cializations of psychology, psychiatry, and other mental health professions, it
seemed time to develop one.
We had a number of purposes in constructing the book as we did. One of
the most important was to provide the field with case material from forensic
reports, which are the most frequently used means of conveying the results of
FMHA to attorneys and legal decision makers. We were fortunate enough to
persuade a number of psychologists and psychiatrists, each selected for national
reputation and specialization, to provide us with case reports from their respec-
tive practices. Although these case reports (with one exception) are disguised
and altered so they do not come from a single case, they represent “real” case
material. They provide legal and mental health professionals, administrators,
policymakers, and trainees with a good overview of different kinds of FMHA
performed by highly competent forensic specialists.
We also wanted to integrate these forensic case reports with broad princi-
ples of FMHA to show how such principles apply to different kinds of forensic
assessment. In this sense, the present book was written as a companion to
Principles of Forensic Mental Health Assessment (Heilbrun, 2001), which de-
scribes the derivation and support for 29 broad principles of FMHA. Those
interested in how these principles might be applied to FMHA cases can see
how we did this in the introduction to each case.
Finally, there are very specific questions about FMHA that cannot be cov-
ered well with broad principles. We took a number of questions like this and
formulated “teaching points”—particular questions about a substantive or pro-
cedural aspect of FMHA—that were addressed following each case. Some of
the case report contributors were also kind enough to answer these teaching
point questions, providing the reader with a broader overview of perspectives
than the three of us could offer.
Our biggest acknowledgment goes to the book’s contributors. A number
of individuals (Stanley Brodsky, Joel Dvoskin, Bill Foote, Geoff McKee, Reid
Meloy, Robert Meyer, Lois Oberlander, Randy Otto, Norman Poythress, Phil-
lip Resnick, Robert Sadoff, David Shapiro, Karin Towers, Herbert Weissman,
and Lauren Wylonis) contributed case reports. David Martindale and Michael
viii • Preface

Norko contributed excellent reports, which, for reasons unrelated to the qual-
ity of the reports, ultimately were not used in the book. Others (Steven Bank,
Beth Clark, Gerald Cooke, Margaret Cooke, Dewey Cornell, James Eisenberg,
Richard Frederick, Stephen Golding, Leigh Hagan, Stephen Hart, Douglas
Mossman, Ira Packer, Robert Prentky, and Kathy Stafford) contributed a case
report and wrote a teaching point. Mark Cunningham and Alan Goldstein con-
tributed two case reports and wrote the teaching point for each, while Philip
Witt provided two reports and one teaching point. Many of these contributors
also offered comments about the book’s structure during the 2 years it was
being written. Without them the book could not have been done, at least in
its present form. We are particularly grateful that these individuals were not
only willing to provide case reports but also to perform the additional work of
disguising the material and combining elements of different cases to make it
ethically acceptable to publish such cases. Thanks to all of you.
Other colleagues have also offered helpful thoughts. Tom Grisso provided
a number of useful suggestions during an early phase of our planning. Bruce
Sales was instrumental in allowing us to transform the idea for a casebook into
a work that would allow us to address the multiple goals of providing case
material, modeling reports, illustrating principles, and addressing teaching
points. Randy Otto provided useful assistance with the question of potential
publishers, and Oxford University Press (particularly Joan Bossert) has done
an outstanding job. We are grateful to all of you.
The Villanova/MCP Hahnemann Law-Psychology Program, directed by
Donald Bersoff since 1990, has been a stimulating place for research and prac-
tice in forensic psychology. The three of us clearly share a passion for this area,
but the Law-Psychology Program has allowed us to transform the idea of a
casebook into reality over a period of several years. As Dr. Bersoff retires in
2001, we would like to acknowledge the debt that we and the entire field of
law-psychology owe him. We hope that others who follow will strive to main-
tain the high standards he has set.
Finally, we each owe a grateful acknowledgment to our family and friends.
Patty and Anna have been very patient with Kirk as he struggled to finish his
part of this work. Geff would like to thank his family for the support they
provided as he worked on this project. Dave would like to express deep grati-
tude to his family for their unending support and patience. Finally, Geff and
Dave would like to thank Kirk for his continued mentorship and guidance.

Philadelphia, PA Kirk Heilbrun

April 2001 Geff Marczyk
Dave DeMatteo
Contents

Contributors, xvii

1 INTRODUCTION AND OVERVIEW, 3

2 MIRANDA RIGHTS WAIVER, 17

Case 1, 17
Principle: Use nomothetic evidence in assessing causal connection
between clinical condition and functional abilities
case contributed by Alan M. Goldstein
Teaching Point: What is the value of specialized forensic assessment
instruments in forensic mental health assessment?
contributed by Alan M. Goldstein
Case 2, 26
Principle: Use case-specific (idiographic) evidence in assessing causal
connection between clinical condition and functional abilities
case contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Teaching Point: What are the limits of forensic assessment instruments?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

3 COMPETENCE TO ACT AS ONE’S OWN ATTORNEY, 37

Case 1, 37
Principle: Clarify financial arrangements
case contributed by Ira K. Packer
Teaching Point: How do you clarify financial arrangements under
different circumstances (e.g., performing an evaluation privately,
negotiating a contract, billing hourly vs. a prespecified amount) in
forensic assessment?
contributed by Ira K. Packer

4 COMPETENCE TO STAND TRIAL, 46

Case 1, 46
Principle: Use plain language; avoid technical jargon
case contributed by Norman G. Poythress, Jr.
Teaching Point: How do you communicate complex scientific material
to legal professionals and lay audiences?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
x • Contents

Case 2, 54
Principle: Select and employ a model to guide data gathering,
interpretation, and communication
case contributed by Steven C. Bank
Teaching Point: How can you use a model to structure the way you
write the report?
contributed by Steven C. Bank
Case 3, 64
Principle: Decline referral when impartiality is unlikely
case contributed by Kirk Heilbrun and Geff Marczyk
Teaching Point: What strategies can be used for remaining as impartial
as possible in high-visibility cases?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 4, 74
Principle: Attribute information to sources
case contributed by Stephen L. Golding
Teaching Point: How does an evaluator separate interview data from
structured-test data in analyzing, reasoning about, and communicating
the results of FMHA?
contributed by Stephen L. Golding

5 COMPETENCE TO BE SENTENCED, 85
Case 1, 85
Principle: Use testing when indicated in assessing response style
case contributed by Karin Towers and Richard Frederick
Teaching Point: How do you assess feigned cognitive deficits?
contributed by Richard Frederick

6 COMPETENCE TO BE EXECUTED, 96
Case 1, 96
Principle: Attribute information to sources
case contributed by Mark D. Cunningham
Teaching Point: Why and how do you attribute information to sources
in forensic mental health assessment?
contributed by Mark D. Cunningham

7 CRIMINAL SENTENCING, 116

Case 1, 116
Principle: Provide appropriate notification of purpose and/or obtain
appropriate authorization before beginning
case contributed by James R. Eisenberg
Teaching Point: How do you obtain informed consent in capital cases?
contributed by James R. Eisenberg
Case 2, 128
Principle: Obtain relevant historical information
case contributed by J. Reid Meloy
 Contents • xi

Teaching Point: Role of history in sentencing in forensic mental health

assessment
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 3, 134
Principle: Decline referral when impartiality is unlikely
case contributed by Alan M. Goldstein
Teaching Point: What kinds of cases do you avoid accepting because
they would make it too difficult for you to remain impartial?
contributed by Alan M. Goldstein
Case 4, 152
Principle: Obtain relevant historical information
case contributed by Mark D. Cunningham
Teaching Point: How do you evaluate the accuracy of different sources
of third-party information?
contributed by Mark D. Cunningham

8 JUVENILE COMMITMENT, 174

Case 1, 174
Principle: Accept referrals only within area of expertise
case contributed by Dewey G. Cornell
Teaching Point: What training and experience in forensic and mental
health areas are needed for juvenile forensic expertise?
contributed by Dewey G. Cornell

9 JUVENILE COMPETENCE TO STAND TRIAL, 188

Case 1, 188
Principle: Use relevance and reliability (validity) as guides for seeking
information and selecting data sources
case contributed by Geoffrey R. McKee
Teaching Point: How does a forensic clinician decide on tools to use in
evaluating juvenile competence to stand trial?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

Case 2, 195
Principle: Ensure that conditions for evaluation are quiet, private, and
distraction free
case contributed by Kirk Heilbrun, David DeMatteo, and Geff Marczyk
Teaching Point: What constitutes “good enough” testing conditions?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

10 JUVENILE WAIVER AND REVERSE WAIVER, 207

Case 1, 207
Principle: Assess legally relevant behavior
case contributed by Kirk Heilbrun, David DeMatteo, and Geff Marczyk
Teaching Point: How does a forensic clinician translate legal criteria into
forensic capacities?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
xii • Contents

Case 2, 220
Principle: Use third-party information in assessing response style
case contributed by Geoffrey R. McKee
Teaching Point: How can results from the interview, testing, and third-
party sources be balanced?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

11 SANITY AT THE TIME OF THE OFFENSE, 231

Case 1, 231
Principle: Determine whether the individual understands the purpose of
the evaluation and associated limits on confidentiality
case contributed by Kathleen Stafford
Teaching Point: What are the advantages of using written versus oral
notification in determining whether the notification was understood?
contributed by Kathleen Stafford

Case 2, 239
Principle: Do not answer the ultimate legal question directly
case contributed by David L. Shapiro
Teaching Point: What should be considered in the decision about
whether to answer the ultimate legal question?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

12 MENS REA AND DIMINISHED CAPACITY, 247

Case 1, 247
Principle: Use multiple sources of information for each area being
assessed
case contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Teaching Point: How much is enough? Diminishing returns from
information sources
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

13 SEX OFFENDER SENTENCING, 259

Case 1, 259
Principle: Use relevance and reliability (validity) as guides for seeking
information and selecting data sources
case contributed by Philip Witt
Teaching Point: Strengths and weaknesses of classification systems
contributed by Philip Witt

Case 2, 265
Principle: Use scientific reasoning in assessing the causal connection
between clinical condition and functional abilities
case contributed by Robert A. Prentky
Teaching Point: Sex offender typologies in sentencing
contributed by Robert A. Prentky
 Contents • xiii

14 RELEASE DECISION MAKING, 279

Case 1, 279
Principle: Use third-party information in assessing response style
case contributed by Robert G. Meyer
Teaching Point: How can the influences of social desirability and
defensiveness be managed in FMHA?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

Case 2, 282
Principle: Use nomothetic evidence in assessing causal connection
between clinical condition and functional abilities
case contributed by Douglas Mossman
Teaching Point: How can forensic clinicians use nomothetic evidence to
apply science to practice?
contributed by Douglas Mossman
Case 3, 292
Principle: Testify in an effective manner
case contributed by Stanley L. Brodsky
Teaching Point: How can the forensic clinician move from “adequate” to
“outstanding” in presenting expert testimony?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

15 CHILD CUSTODY, 299

Case 1, 299
Principle: Obtain appropriate authorization
case contributed by Herbert N. Weissman
Teaching Point: Who must authorize FMHA—and how?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 2, 307
Principle: Avoid dual roles of therapist and forensic evaluator
case contributed by Beth K. Clark
Teaching Point: What strategies do you use in trying to remain impartial
in the course of forensic assessment?
contributed by Beth K. Clark
Case 3, 319
Principle: Base testimony on the results of the properly performed
forensic mental health assessment
case contributed by Leigh D. Hagan
Teaching Point: How does the forensic clinician use the report to
facilitate effective testimony?
contributed by Leigh D. Hagan

Case 4, 336
Principle: Testify in an effective manner
case contributed by Gerald Cooke and Margaret Cooke
Teaching Point: What kind of errors do you avoid to make your
testimony more effective?
contributed by Gerald Cooke and Margaret Cooke
xiv • Contents

16 TERMINATION OF PARENTAL RIGHTS, 350

Case 1, 350
Principle: Obtain appropriate authorization
case contributed by Lois B. Oberlander
Teaching Point: How can the forensic clinician handle reluctance and
refusal to participate in court-ordered evaluations?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

17 CIVIL COMMITMENT, 376

Case 1, 376
Principle: Describe findings so that they need change little under
cross-examination
case contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Teaching Point: How should the forensic clinician communicate
violence risk?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

18 CIVIL PSYCHOLOGICAL INJURY, 387

Case 1, 387
Principle: Determine the role to be played if the referral is accepted
case contributed by Herbert N. Weissman
Teaching Point: What are strategies for resisting pressure to play
multiple roles in FMHA?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 2, 399
Principle: Write report in sections, according to model and procedures
case contributed by Philip H. Witt
Teaching Point: Why is sequential communication of FMHA results
important?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

19 COMPETENCE TO CONSENT TO TREATMENT, 407

Case 1, 407
Principle: Assess relevant clinical characteristics in reliable and valid
ways
case contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Teaching Point: How do structured instruments such as the MacCAT-T
increase the relevance and reliability of FMHA?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

20 GUARDIANSHIP, 417
Case 1, 417
Principle: Determine the role to be played if the referral is accepted
case contributed by Randy K. Otto
 Contents • xv

Teaching Point: Can one ever play more than one role in a single
FMHA case?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

21 MALPRACTICE, 425
Case 1, 425
Principle: Use multiple sources of information for each area being assessed
case contributed by William E. Foote
Teaching Point: What is the role of the forensic clinician in collecting
third-party information?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

22 WORKER’S COMPENSATION, 438

Case 1, 438
Principle: Use testing when indicated in assessing response style
case contributed by Kirk Heilbrun, David DeMatteo, and Geff Marczyk
Teaching Point: How does the forensic clinician integrate response style data?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 2, 448
Principle: Assess legally relevant behavior
case contributed by Lauren Wylonis and Robert L. Sadoff
Teaching Point: What is the relationship between symptoms and
disability in capacity to work?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

23 THREAT/RISK ASSESSMENT, 454

Case 1, 454
Principle: Identify relevant forensic issues
case contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Teaching Point: What are strategies for predicting violent behavior, and
others for assessing risk reduction?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 2, 462
Principle: Clarify role with attorney
case contributed by Joel Dvoskin
Teaching Point: What are strategies for avoiding dual roles in FMHA?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo
Case 3, 470
Principle: Use nomothetic evidence in assessing causal connection
between clinical condition and functional abilities
case contributed by Stephen D. Hart
Teaching Point: What are the advantages and disadvantages of using
actuarial approaches in risk assessment in forensic contexts?
contributed by Stephen D. Hart
xvi • Contents

24 MALINGERING, 479
Case 1, 479
Principle: Use case-specific (idiographic) evidence in assessing clinical
condition, functional abilities, and causal connection
case contributed by Phillip J. Resnick
Teaching Point: How does case-specific evidence contribute to the
assessment of malingering?
contributed by Kirk Heilbrun, Geff Marczyk, and David DeMatteo

References, 512

Index, 519