Wednesday, September 9, 2009

Atkins MR death penalty experts: Knowledge and exerience required (Olley, 2009)

What does it take to be an expert in Atkins MR death penalty cases? A good article outlining a number of the skills, knowledge, issues and expertise required is that by Olley (2009) in the special issue of the journal Applied Neuropsycholgy. Individuals considering testifying in Atkins MR death penalty cases should read this article in full.
  • Olley, J. G. 2009. Knowledge and Experience Required for Experts in Atkins Cases. Applied Neuropsychology,16 (2), 135-140.
The United States Supreme Court’s Atkins v. Virginia (2002) decision has created a need for experts who are knowledgeable and experienced in both mental retardation and forensic psychology. This article summarizes the issues that are critical to the diagnosis in the ‘‘close calls’’ that typify Atkins cases. A resolution of such close calls hinges upon the expert’s ability to testify with regard to the characteristics of mild mental retardation and the way that diagnostic standards may be applied differently in clinical versus forensic settings. The critical impairments are not in the form of physical stigmata. They are characterized by difficulties in judgment when engaged in typical community functioning. The keys to these close calls are the individual’s problems in functioning in the community with the degree of independence required for adults.


[note: Italics are direct quotes. Underline is emphasis added by the blogmaster]

According to the articles author:

Those who have been testifying in Atkins hearings have come from varied professional backgrounds. The knowledge and expertise needed for "expert testimony in Atkins involve an unusual mix of background in the field of developmental disabilities with a background in forensic psychology. This combination of credentials was rare before the Atkins decision, and, thus, psychologists and other experts who are asked to testify may have limited experience in some of the essential aspects of the diagnosis of mental retardation in this new context."

Forensic psychologists are most likely to be recognized and accepted by the courts as experts, but the majority of forensic psychologists have little training or experience in the field of developmental disabilites (mental retardation).

Given the lack of uniform training, the author suggests the following as key issues that Atkins experts need to be familiar with:
  • Relevant professional standards (note--see Standards, Ethics and Position Statements" links in current blogs sidebar (right side of blog)
  • Current definitions of mental retardation, and the recognition that different states may have different definitions and diagnostic criteria.
  • Relevant ethical principles of their profession "(American Academy of Psychiatry and the Law, 2005; American Psychological Association, 2002), position statements made by professional organizations (e.g., American Bar Association Task Force on Mental Disability and the Death Penalty, 2006; Bonnie, 2004; Committee on the Revision of the Specialty Guidelines for Forensic Psychology, 2008), and recommendations made by recognized authorities in the field (e.g., Bonnie & Gustafson, 2007; Ellis, 2003)."
  • Understand a key difference between clinical and forensic settings. In clinical settings, typically definitions and criteria are used to identify individuals "who meet the criteria and would benefit from services and supports." In such situations professional standards allow psychologists to excercise clinical judgment and to take into consideration the potential benefits of services for the assesed invididual. In contrast, the most significant issues in court settings are likely to focus more on the application of professional definitions in a more narrowly circumscribed and constrained legal context.

The author notes that "most Atkins cases are close calls; that is, evidence exists for and against the diagnosis, and if the defendant has mental retardation, it is in the mild range with functioning between two and three standard deviations below the population mean." The author then lists a number of important issues that must be recognized in these "close calls." They include, but are not limited to:

Impairment in Typical Community Functioning. This is not an easy task an involves a variety of issues, including:
  • Understanding that mild MR is primarily identified by impaired typical community functioning and not specific diagnostic signs or physical symptoms. The cause of mild MR is typically unnkown.
  • Typical functioning is difficulty to assess given that the person is incarcerated in a structured environment and collecting pre-incarceration information re: typical commmunity functioning requires significant effort.
  • An individuals typical functioning must be compared to the normative standards of the appropriate population (US population...not a prison population)
  • Recognition that mild MR may coexist with other disorders or diagnoses.
  • Self report information from the defendant "is of very questionable value in the diagnosis of mental retardation. The expert in an Atkins proceeding should, of course, meet with the defendant, interview him, and engage him in whatever activities might help to determine his understanding of his current situation, his ability to report on factual aspects of his history, and his ability to relate to others. However, the defendant’s assessment of his own functioning is not a valid source of data on which to form a diagnosis. Most people with mild mental retardation can engage in casual conversation and report on their experiences and other concrete topics. Limitations in understanding and communication become evident when the individual is asked to explain his statements or to discuss topics that require abstract reasoning or analysis."
  • "the extent to which the individual was able to live independently with minimal assistance is key to the diagnosis of mental retardation in close calls."
  • individuals with mild MR rarely have social relationshiops that are mutually beneficial and reciprocal. "In most cases, the individual has few friends and the existing relationships tend to be one-sided. That is, the individual depends on a parent or girlfriend or neighbor as a ‘benefactor’ or has acquaintances who try to exploit him for money, labor, drugs, or other resources."

Significant Impairment in General Intelligence. Select issues to recognize include:
  • A cause-and-effect relationship betwen intelligence (IQ) and adaptive functioning is difficult to prove
  • Atkins defendents typically have taken multiple IQ tests and the scores often fluctuate around the legal cut-off score. Experts need to recognize the potential reasons for this IQ variability and account for it in their interpretation and conclusions.

Training Issues in Forensic Psychology
  • States and jurisdictions may specify different standards regarding who can testify as an expert in Atkins cases. Experts need to be aware of the professional standards involved in a specific case before deciding to serve as an expert witness.
  • "psychologists preparing to testify in Atkins proceedings would benefit by becoming members of two divisions of the American Psychological Association. Division 33 (Intellectual and Developmental Disabilities) and Division 41 (American Psychology-Law Society) often provide information relevant to Atkins and offer the opportunity to become acquainted with colleagues with experience in this area."

Article summary
The expert in an Atkins proceeding must have experience with individuals with mild mental retardation, knowledge of the research on this population, and knowledge of the applicable laws and court procedures. This combination of knowledge and experience was rare before the Atkins decision, and experts who now work in this area must broaden their experiences to provide the most valid and objective information to the court. As the other articles in this issue have demonstrated, the diagnosis of mild mental retardation is complex and requires more than the rigid application of test scores. People with mild mental retardation may have basic academic skills and several areas of adequate community functioning. Their difficulties that set them apart are more likely located in their judgment than in their knowledge and skills. Reschly (2009, this issue) provides an excellent summary in noting that ‘‘The core issue is the use of abstract reasoning and judgment in coping with everyday demands in a socially and economically complex society.’’