Showing posts with label experts. Show all posts
Showing posts with label experts. Show all posts

Saturday, September 21, 2019

Forensic Clinicians' Understanding of Bias (MacLean et al., 2019)


Abstract

Bias, or systematic influences that create errors in judgment, can affect psychological evaluations in ways that lead to erroneous diagnoses and opinions. Although these errors can have especially serious consequences in the criminal justice system, little research has addressed forensic psychologists' awareness of well-known cognitive biases and debiasing strategies. We conducted a national survey with a sample of 120 randomly selected licensed psychologists with forensic interests to examine (a) their familiarity with and understanding of cognitive biases, (b) their self-reported strategies to mitigate bias, and (c) the relation of a and b to psychologists' cognitive reflection abilities. Most psychologists reported familiarity with well-known biases and distinguished these from sham biases and reported using research-identified strategies but not fictional or sham strategies. However, some psychologists reported little familiarity with actual biases, endorsed sham biases as real, failed to recognize effective bias mitigation strategies, and endorsed ineffective bias mitigation strategies. Furthermore, nearly everyone endorsed introspection (a strategy known to be ineffective) as an effective bias mitigation strategy. Cognitive reflection abilities were systematically related to error, such that stronger cognitive reflection was associated with less endorsement of sham biases.

Keywords: bias, forensic evaluation, survey, cognitive reflection

Thursday, August 11, 2011

Research briefs: Various death penalty/criminal justice related recent publications




Coen, M., & Heffernan, L. (2010). Juror Comprehension of Expert Evidence: A Reform Agenda. Criminal Law Review, (3), 195-211.

Crinion, C. (2010). Adducing the Good Character of Prosecution Witnesses. Criminal Law Review, (7), 570-573.

HungerfordWelch, P. (2010). Prosecution Interviews of Defence Witnesses. Criminal Law Review, (9), 690-701.

Kaufman, S. B. (2011). Citizenship and punishment: Situating death penalty jury sentencing. Punishment & Society International Journal of Penology, 13(3), 333-353.

Wu, Y. N., Sun, I. Y., & Wu, Z. X. (2011). Support for the death penalty: Chinese and American college students compared. Punishment & Society International Journal of Penology, 13(3), 354-376

Carson, D. (2011). Investigative Psychology and Law: Towards Collaboration by Focusing on Evidence and Inferential Reasoning. Journal of Investigative Psychology and Offender Profiling, 8(1), 74-89


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Saturday, December 4, 2010

Research brief: Can juror's detect junk science expert witness testimony?




I Spy with My Little Eye: Jurors’ Detection of Internal Validity Threats in Expert Evidence.. Click here for on-line version.

Bradley D. McAuliff and Tejah D. Duckworth. Law and Human Behavior. American Psychology-Law Society/Division 41 of the American Psychological Association 201010.1007/s10979-010-9219-3


Abstract

This experiment examined whether jury-eligible community members (N = 223) were able to detect internally invalid psychological science presented at trial. Participants read a simulated child sexual abuse case in which the defense expert described a study he had conducted on witness memory and suggestibility. We varied the study’s internal validity (valid, missing control group, confound, and experimenter bias) and publication status (published, unpublished). Expert evidence quality ratings were higher for the valid versus missing control group version only. Publication increased ratings of defendant guilt when the study was missing a control group. Variations in internal validity did not influence perceptions of child victim credibility or police interview quality. Participants’ limited detection of internal validity threats underscores the need to examine the effectiveness of traditional legal safeguards against junk science in court and improve the scientific reasoning ability of lay people and legal professionals.


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Wednesday, December 1, 2010

Expert added to expert blogroll: Dr. Mark Cunningham




Dr. Mark Cunningham has been added to the ICDP expert blogroll. Information regarding Mark can be found at the following link.


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Wednesday, May 19, 2010

Court decisions: Hearn v TX (2010), Dunn v LA (2010), Lizcano v TX (2010), Rodrigues v Wong (CA, 2010)

Four recent Atkins Court Decisions have been added to the ICDP Court Decisions (n-105) blog side bar.  They are listed with a only a  few comments--and the comments are gleaned from the emails of the individuals who sent them to me.  I've not had time to digest them properly myself in order to provide anything in the way of an in-depth commentary.  Those days of commentary seem to be over for me for now.....as I simply can't find the time.  I post these for archival purposes and with the hope that others will read them and consider making guest blog commentary posts re: the various issues in any of the decisions.
  • Hearn v TX (2010)Dale Watson and Stephen Greenspan served as experts in this case.  They are two of the experts I've listed at the ICDP Professional Experts blogroll.  I personally know they are top-notch experts, so I would recommend reading this decision to capture the essence of their logic, data and testimony.  I plan to when I can.
  • Dunn v LA (2010)Lots of discussion of the use of the Flynn Effect adjustment of IQ scores.  If you want to get a feel for the pro/con arguments regarding the courts handling of the FE, check the rather lengthy concurring opinion.
  • Lizcano v TX (2010) This is a long decision.  Of significant interest is the concurring/dissenting opinion of one judge, joined in by two other judges, who question the wisdom (or lack thereof) of the so-called Texas Briseno factors - the court imposed adaptive behavior factors in Texas.  The Texas Court of Criminal Appeals (9 judges) is the highest court in the state for criminal cases, so 6 judges appear to uphold the Briseno factors.    According to the dissenting-concurring opinion--very interesting.
"The Court's scattershot approach to adaptive deficits--letting the fact-finder hunt and peck among adaptive deficits, unfettered by the specific diagnostic criteria that inform the expert opinion--will allow some capital offenders whom every rational diagnostician would find meets the clinical definition of mental retardation to be executed simply because they demonstrate a few pronounced adaptive strengths along with their manifest adaptive deficits. Better, I think, to be over-inclusive and mistakenly sentence some borderline intelligent capital offenders to the not-inconsiderable penalty of life imprisonment without the possibility of parole than to inadvertently execute even a single mildly mentally retarded offender in violation of the strictures of the Eighth Amendment."

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Monday, May 10, 2010

Law Review Article: Twenty-five years of social science in law (Monahan & Walker, 2010)

Monahan, J., & Walker, L. (2010).  Twenty-Five Years of Social Science in Law.  Virginia Public Law and Legal Theory Research Paper No. 2010-99


Abstract:    

In this Essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed - sometimes radically - are the substantive legal questions on which social science has been brought to bear.

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Tuesday, April 13, 2010

Guest commentary on the Retrospective Assessment of MR: Effectively Addressing Atkins Questions: Dr. Timothy Derning

Blogmaster introduction and comments:  Below is a guest blog post by Dr. Timothy Derning in response to the recent court ruling regarding Johnston v Fl (click here for prior post that includes links to all prior posts and documents).  This is a longer than usual blog post, but I believe it is worth the space.  Also, I would LOVE to see other professionals (who practice in the area of Atkins cases) offer similar post-hoc analysis of Atkins court decisions.  They can be very educational and instructive.  Such commentaries can serve a valuable function of encouraging discussion, the exchange of ideas, and professional debate.  That being said, if folks would like to engage in further dialogue regarding Dr. Derning's post, I  suggest joining (in not already a member) the public Atkins MR/ID Death Penalty discussion listserv and exchange thoughts, etc. in that medium.  Info regarding the listserv and a sign-up box are near the top of the blogroll on the right-hand side of this blog.  Thanks Dr. Derning for the post.

---------------------------

A brief review of the state of Florida decision regarding David Eugene Johnston dated April 5, 2010. Mr. Johnston is on Florida's death row. The issue before the court was whether Mr. Johnston has mental retardation. The court's decision was that Mr. Johnston does not have mental retardation. The defense presented four experts. The State presented two experts.

Mr. Johnston is 61 years old in 2010. He has been given a number and variety of intelligence (IQ) tests throughout his life, beginning in 1967, at age 7, when he was given the Stanford Binet, form LM, and received a 57 IQ. He was administered the WISC twice, once in 1972, FSIQ = 65 (at age 12); and two years later in 1974, FSIQ = 80 (age 14). It's important to note that the examiner in 1967 made a comment in the report that the IQ score of 57 most likely represented a depressed estimate of intellectual functioning due to an unhealthy home environment, moderate to severe perceptual problems and/or brain damage, and severe emotional disturbance.  This examiner stated Johnston’s intellectual ability and potential was "possibly within the lower dull normal range, normal level." Likewise, the 1972 examiner acknowledged that the WISC FSIQ of 65 was in the retarded range, but stated the results were suspect due to possible emotional problems.  The 1972 examiner estimated that Johnston’s ability "would be more in keeping with the slow learner or low average range rather than the mentally retarded." In 1974 the evaluator who administered a WISC and reported a FSIQ of 80, commented that young Mr. Johnston (then age 14) was cooperative and engaged. These comments played a significant role in this court's opinion.

Before proceeding its is worthwhile to pause and recall that the definition of mental retardation (aka intellectual disability) has three parts or prongs: subaverage intellectual functioning (a valid IQ score of approximately 70 + 5 points; 1 SEM); demonstrated deficits in daily adaptive living ability, and onset that begins during development (before age 18). Neither etiology, nor genetics, nor congenital deficits are mentioned or considered in the definition.

In 1988 (when Mr. Johnston was 28 years old) he was tested again with the adult Wechsler. On the WAIS-R there was a large split between Johnston’s Verbal IQ of 75 and Performance IQ of 101. Such a wide difference is statistically rare and unexpected, so much so that the full-scale IQ is regarded as uninterpretable (meaningless). Nonetheless, one of the state's experts in 2009/10 calculated a full-scale IQ 83 for WAIS-R.  Mr. Johnston was next given (at age 40) a newer Wechsler (WAIS-III) in 2000. His WAIS-III FSIQ score was 76. Another WAIS-III was administered in 2005, when Johnston was 45 years old.  On this WAIS-III his FSIQ score was 82 (or 84 - both scores are reported in this opinion). Finally, in July 2009 Mr. Johnston was administered the latest edition of the adult Wechsler IQ test (WAIS-IV, 2009), on which he received a FSIQ score of 61. In short, the pattern of Mr. Johnston's IQ scores is highly variable, ranging from a low of 57 to a high of 84 and then back down to 61. The differences among the IQ scores presented a thorny problem: which scores to accept, which to reject? How to rest comfortably with an opinion about Johnston’s level of general intellectual ability?

The defense experts presented a variety of arguments supporting the opinion that Mr. Johnston is a person with mental retardation; most centered on the IQ scores. One theme among these arguments was the interfering effects of the "Flynn Effect," a statistical phenomenon that IQ scores artificially increase over time in tests that have not been renormed for a number of years.  The defense experts believed that the Flynn Effect could account for the variable IQ scores. The other theme argued for the influence of "practice effects," which refers to the fact that the more an individual takes the same test, the more familiar they become with that test, and the more likely IQ scores will increase artificially due to practice (familiarity). While these reasons were offered, the court’s opinion does not report the experts’ explanations as to how or why these factors should influence an MR/ID Dx (or not) in Mr. Johnston's case---only that it is known that the Flynn Effect and practice effects can be variables that must be considered when evaluating a history of IQ scores. Hopefully, a more complete and relevant explanation was offered during testimony.

Much of the argument from the experts (on both sides) centered on the Wechsler IQ test itself, its validity, its psychometrics, and a comparison of scores between the WAIS-III in WAIS-IV. The defense experts argued that the WAIS-IV (2009) is a superior test to the others, uses a four-factor model to derive IQ scores, and is a superior measure of intelligence compared to the WAIS-III and it’s two-factor model of interpretation. The defense experts argued that the WAIS-IV, and consequently the 61 IQ obtained from Mr. Johnston in 2009, represented the "gold standard" of intelligence testing, and provides the best indicator of his true intellectual functioning, thus meeting the legal and clinical standard for mental retardation (actually only the first prong of the definition).

With respect to the variability in IQ scores over Mr. Johnston's lifetime, the defense experts argued that such variability is to be "expected" as there is much variability among very low IQ scores.  The defense experts then discounted (or gave little weight to) the higher 1974 and 1988 IQ scores "because those tested not reflect the most current testing data." One defense expert said he could not find the actual 1974 report, did not know where it was administered, or who administered the test, and therefore didn't trust the validity of the IQ scores.

The defense expert who administered the WAIS-IV in 2009 also administered the TOMM test as a check against malingering in order to demonstrate the validity of the WAIS-IV FSIQ. Adaptive ability was addressed by several defense experts.  One expert interviewed the mother and brother of the defendant, another administered the Adaptive Behavior Assessment System, Second Edition (ABAS-II) and reported that the defendant scored very low, 4 or less, in all 10 scales of the ABAS-II.

On the other hand the state's experts testified that they assessed Mr. Johnston in 2005 (they did not examine him in 2009, but reviewed the reports of the defense experts). One state expert administered the WAIS-III in 2005 (FSIQ = 82 or 84) and both experts concluded that Mr. Johnston was not a person with mental retardation. Both experts gave greater weight to the 1974 WISC IQ FSIQ score of 80, as they noted the examiner's positive remarks describing the defendant as alert, cooperative, friendly, verbally expressive, and exhibiting self-confidence during the testing.

The defense experts had a more awkward argument to maintain, having to weigh Mr. Johnston’s lower IQ scores more heavily, while giving less weight to higher IQ scores for various reasons. They also had to walk the gauntlet that the WAIS-III, an established and comprehensive measure of intelligence, was not a "piece of junk," while trying to give greater weight and emphasis to the 61 IQ from the WAIS-IV. In spite of various defense experts’ arguments, one of the most important and influential pieces of information came from a state's expert who testified that the correlation between the WAIS-III and the WAIS-IV is .94 "or almost perfect, which signified that the WAIS-III was measuring the same constructs as the WAIS-IV and there was a great deal of overlap between the two instruments, making them almost "identical."" One defense expert who argued for the superiority of the WAIS-IV over the WAIS-III was unable to cite the correlation between the two tests as provided in the WAIS-IV test manual, saying that the correlation was probably "mid-.8", which is about .10 lower in magnitude than is actually the case. Knowing the precise correlation (.94) allowed the state’s expert to testify convincingly that the technical concerns raised by the defense about the "two factor model" versus the "four factor model" were relatively insignificant.

The state’s experts also made a salient point that the TOMM test, administered to establish the validity of the WAIS-IV IQ test performance, was given at a much different time, and the court noted,"... the TOMM was not administered properly in that administering the TOMM and the WAIS-IV some two or three months apart, (so that) the ability to make an extrapolation from one test to the other was lost." True enough.

Also of significance, when addressing the drop in IQ from 2005 (FSIQ 82 to 84) to 2009 (FSIQ 61), the state’s experts examined individual responses to IQ test questions and found unexpected inconsistencies, such as when the defendant answered 4+5 =9 in 2005, but when asked to solve a similar problem in 2009 said, “I can’t add.” Also, Johnston could identify Martin Luther King, Jr. in 2005 but never heard of him in 2009.

While the defense experts attempted to assess adaptive ability, no defense expert interviewed anyone at the prison. The court took note of omission and expressed concern that the defense, "... did not interview any personnel at the Department Of Corrections who would have been familiar with Defendant on a day-to-day basis to further assess this issue." The court found the absence of current first-hand information was a significant weakness in the assessment data in spite of claims that adaptive test data (from the ABAS) indicated adaptive deficits. In addition, the court found the information from the defendant's mother and brother provided, "... far too little information and were too distant in time to have any probative value."

Overall, it would seem that this Atkins opinion regarding the presence of mental retardation turned on several factors in the decision. It was important to the court that IQ scores from the WAIS-III and the WAIS-IV are "virtually identical" [blogmaster coment--click here for CHC analysis of each instruments FS IQ composition] so that all technical arguments about the superiority of one score over another, and arguments advancing the psychometric superiority of the WAIS-IV, became irrelevant. This opinion noted that the “Flynn effect” arguments were made by defense experts, but the court document unfortunately provides no additional information about how the significance of the Flynn effect or practice effects were relevant to Mr. Johnston’s mental retardation claim.

This case is instructive on a number of points. For example, it can be problematic for a contemporary evaluator when childhood IQ scores are accompanied by comments from the earlier evaluator that dismiss a low IQ as not being "representative" of the true functioning of the youngster. It's often the case that less skilled examiners don't trust their own test data and tend to superimpose their own "clinical impressions" that a youngster is not mentally retarded for one reason or another. Usually bias, lack of training or experience, misinformation, or not having the benefit of 40+ years of additional research, play a large part in this clinical interpretation of IQ scores. However, comments about a youngster coming from a dysfunctional home, an unhealthy home environment, and/or having emotional problems, must be considered and given appropriate weight in the retrospective evaluation process. Additionally, when previous evaluators note that a youngster was fully cooperative and engaged during testing, that, too, must be weighed accordingly, especially when there is a noticeable increase in the IQ score. This last point was clear in this case.

In Mr. Johnston’s history of IQ scores the 1967 Stanford Binet IQ of 57 can be seen as an "outlier"-- an extremely low IQ score that is inconsistent with all other reported IQ scores. Nor is there data to support significant adaptive deficits throughout Mr. Johnston's life (i.e., very low functioning consistent with someone having an IQ 57, a very low score). Therefore, subsequent evaluators should consider the 1967 examiner’s comment that the 57 IQ score most likely represented a depressed estimate of intellectual ability as (likely) an accurate caveat. Likewise, the 1972 examiner's similar observation that emotional problems depressed the IQ score must be considered accordingly in the retrospective analysis of IQ scores. The judge in Mr. Johnston’s case found the state’s experts’ reasoning compelling. (Importantly, this judge also found the state’s experts’ explanations more detailed and credible with respect to secondary factors that could depress IQ scores in the past and in the present day, namely, anxiety about his impending execution.) The defense experts failed to overcome the “common sense” questions of the low IQ scores from Mr. Johnston’s childhood: an emotionally distraught youngster living in an unhealthy family environment is not be expected to perform at optimal levels when solving intelligence problems.

Evaluating the adaptive abilities of a defendant who has been living on death row for a number of years presents significant challenges to a contemporary evaluator, not the least of which is collecting valid and reliable information from collateral sources who know how the individual functions. As noted in this opinion, family members may be too unfamiliar and removed from current functioning to provide useful information. Additionally, they may be biased in favor of the defendant. Likewise prison personnel may not be able to provide the kind of information needed in such a limited and structured environment; they, too, may present a different bias toward normalcy. Additionally, prison personnel may not be made available to the evaluator. The court’s opinion in Mr. Johnston's case suggests, however, that it is important to make an honest effort to collect information from contemporary collateral sources, weighing and evaluating the validity of the information after it is collected, or at least after an honest attempt is made.

From a distance (and without benefit of copies of the oral testimonies) it would appear that the defense experts became “blinded” by the bright lights of the IQ test arguments. There is considerable intelligence testing research and expertise to draw upon from the extant literature. Another potential “blinding” of the defense experts is the fact that when one can establish the validity of a higher IQ score, well above the IQ range established for subaverage intellectual functioning (IQ approximately 70), the IQ score alone may have sufficient power to “conclusively refute the mental retardation diagnosis both legally and clinically” as conceded by defense experts. For this reason, a valid higher IQ score can be a “deal breaker” for the first prong of the MR definition, and thus the whole MR claim. Further assessment is not required. It is for this reason, however, that IQ scores are sometimes given more weight and emphasis than they deserve in Atkins arguments. Not infrequently, as in Mr. Johnston’s case, it is not easy to examine a retrospective history of IQ test scores and definitively establish or refute mental retardation, especially in a retrospective evaluation that spans decades, using various tests, and has been conducted by multiple examiners. In such cases retrospective evaluators may need to look elsewhere for data or information to form an opinion, namely, adaptive functioning, the “middle child” of the MR criteria.

The Johnston opinion is a good illustration of the difficulty of evaluating the subaverage intellectual functioning prong of the MR definition in the presence of multiple inconsistent IQ scores. These are typical cases that show up at the doorsteps of psychological experts. Atkins defendants with consistent IQ score histories in the 60’s or 80’s are easier to assess one way or the other. However, someone with Mr. Johnston’s IQ history confounds efforts to reach a firm conclusion regarding subaverage intellectual functioning. Technical expertise regarding psychometric issues may or may not help to untie the knot. In Mr. Johnston’s case most of the tests used were from Wechsler batteries (WISC, WAIS-R, -III, -IV), which is somewhat unusual; often a variety of brief, nonverbal only, group administered, or discontinued IQ tests are present in the defendants records. In this case it would seem the (over-) focus on the Wechsler IQ score validity took precedence among the defense experts’ opinions. Yet, when all is said and done, adaptive functioning (the second prong of the MR definition) may provide the clarity and more accurate insight necessary to evaluate a defendant’s overall functioning with respect to a finding of mental retardation.

This case also highlights the difficulties often encountered by the retrospective Atkins evaluator in both IQ and adaptive deficit domains. Perhaps Mr. Johnston’s argument for a finding of mental retardation would have been more compelling if the presence of adaptive deficits had been more thoroughly documented and presented (assuming the truth of such deficits exists). As this Atkins opinion demonstrates, arguments supporting a finding of mental retardation must balance expertise and technical knowledge about intelligence testing against practical and common sense ‘everyday’ considerations. Common sense sometimes leads and sometimes misleads, but it is always a useful foundation and context for an expert’s curiosity, evaluation focus, and final opinions. It certainly was the thread that ran through this carefully reasoned opinion.

As a result of their significant intellectual deficits, people with mental retardation have difficult lives of a particular kind. The difficulties they may experience “getting by” and “fitting in” can make them more vulnerable to criminal influences. This was the concern originally expressed by the U.S. Supreme Court in the Atkins 2002 decision when it ruled against the execution of individuals with mental retardation. The defense experts in this case had an uphill climb. They chose a thorny path. Nonetheless, the larger lesson from this case is not about psychometric technicalities, but about presenting the (in)adequacy of Mr. Johnston’s life, such as it is, or is not. That information was available to both sides. Sometimes the IQ measurement question cannot be answered to the desired level of certainty. The state’s experts in this case were direct and parsimonious. They did not lose sight of the practical issues of the case and the judge was persuaded.

In the end it is always the impaired life and deficient (dependent and limited) daily functioning that is the hallmark of mental retardation. The burden of proof for mental retardation was on Mr. Johnston; the default position was the absence of mental retardation. When the IQ score waters are muddied, as in this Atkins claim, experts must broaden their focus to include other data that may allow one to better see the forest, not just the trees. The state’s experts provided a relatively direct and persuasive context for their opinions. In this case the defense’s psychometric arguments did not carry the day and other data and explanations were not compelling. As noted, Mr. Johnston’s mental retardation claim was not an easy one to establish, and in the end the judge was not persuaded.

[Thank you to Drs. Kevin McGrew and Greg Olley for the generosity of their time making comments and editing suggestions]
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Tuesday, April 6, 2010

Court Decision: Johnston v Florida appeal denied--interesting expert opinions re: old vs new IQ scores

Last month I passed along an urgent plea re: an appeal of the non-MR/ID determination of Johnstone (Johnstone v Florida, 2010).  Yesterday the judge ruled against Johnstone an indicated that the burden of proof that he was MR/ID was not meet.

Although I have only glanced at the ruling (it was just yesterday), it provides some very interesting insights into how multiple IQ test scores across many years and different instruments are treated by different psychological experts and the court.  An interesting twist in the appeal was an attempt to make the case that scores from a new version (WAIS-IV) of a previously administered WAIS-III constituted "new evidence" that should be used in the MR/ID determination.  This brought up the issues of practice effects and the Flynn Effect...and the very interesting issue of how to treat scores on a new revision of a previously administered (but older) IQ test.  The discussion of how to evaluate the old and new WAIS scores (and old vs new norms) by the different experts is interesting, and in some places troubling.

I find it amazing that two of the psychological experts did not know the correlation between the WAIS-III/WAIS-IV as reported in the WAIS-IV technical manual.  One admitted not knowing the correlation and another suggested it was probably in the "mid .8."  The correct value, as reported in the WAIS-IV technical manual is .94----a point accurately made by the states psychological expert.  One would think that psychological experts testifying in Atkins cases would review the latest available research re: new instruments about which they are to testify...esp. the information in the technical manuals.  On this point the states expert was much more credible.

Also of interest was the introduction of the controversial 2009 Flynn article where Flynn suggests that the WAIS-III test norms are flawed.  Weiss (2007) has challenged the basis of Flynn's claim, and in an article I have "in press" (McGrew, in press; The Flynn Effect and Its Critics: Rusty Linchpins and “Lookin’ for g and Gf in Some of the Wrong Places”, Journal of Psychoeducational Assessment---special issue on the Flynn effect due to be published Dec 2010 or early 2011) I concur with Weiss's arguments.  Issues surrounding the Flynn effect are starting to heat up among IQ scholars.

Finally, the defense argues that the newer norms of the WAIS-IV make it a more accurate measure.  On this point I agree.  They then further argue that the change in the factor scores from the WAIS-III/WAIS-IV, which results in a different interpretation system of major component scores, makes the WAIS-IV a better indicator of intelligence.  Although I agree with the fact that the WAIS-IV factor-based index score system is a more valid system for interpreting cognitive strengths and weaknesses, this argument overlooks the more important central IQ score comparison issue..which is at the core of MR/ID Dx in Atkins cases.  Namely, as I have reported previously, despite the new organizational structure of the WAIS-IV, the ability composition of the FS IQ score (which is the best indicator of general intelligence -- baring concerns for the validity of the FS score and the need to look at part scores) is nearly identical across editions.

Using the consensus CHC model of intelligence as the cognitive ability taxonomy for understanding what IQ tests measure, CHC analysis of the FS IQ scores reveals that the WAIS-III/WAIS-IV FS IQ scores are not dramatically different in CHC ability representation (Gc- 31.8 v 30 %; Gv - 22.7 v 20 %; Gs - 18.2 v 20%; Gq - 4.6 v 5 %; Gsm - 13.6 v 15 %; Gf - 9.1 v 10%).  The high .94 WAIS-III/WAIS-IV correlation reported in the TM is not surprising given this CHC content comparative analysis.

Lots more to think about and discuss in the examination of all the IQ scores.  Maybe a future post...or, if anyone is interested, a good opportunity for a guest post.

I think there is a good chance that this case may try to get before SCOTUS   Correction----this case needs to go to the FL Supreme Court first.

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Friday, April 2, 2010

Law Review Article: Tuerkheimer (2010) on science-dependent prosecution in criminal justice

Although not dealing specifically with Atkins cases, the role of science (i.e., the science of psychometics and psychological testing) in criminal justice cases is no doubt a critical issue.

Tuerkheimer, D. (2010). Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency.  Alabama Law Review.  Click here to visit site where article can be downloaded.




  Abstract:     
Increasingly in our criminal justice system, guilt is proven on the basis of science – a phenomenon I call science-dependent prosecution. This trend likely will continue, and even accelerate. Yet legal scholars have not grappled with the larger implications of this shift. Recent attacks on the validity of a number of forensic disciplines beg the question: must law perpetually chase science?


Science is subject to a process of constant revision, upending accepted “truths” in unpredictable ways. I argue that our justice system is ill-equipped to deal with the provisional nature of scientific knowledge. The problem I identify challenges fundamental tenets of criminal law and procedure: the privileging of finality; the deference afforded juries; the virtues of plea bargaining; the wisdom of adversarial models of justice; and, at bottom, our commitment to the presumption of innocence. Now is the time to reckon with the proper place of science in determining guilt. This article begins this conversation, using Shaken Baby Syndrome (SBS) as a case study.


Criminal law’s reliance on science should not be jettisoned. But our system must be armed to deal with the inevitability of scientific change. I conclude by offering suggestions for reform.
Keywords: Shaken Baby Syndrome, Forensic Science, Expert Testimony

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Wednesday, January 6, 2010

New expert added to ICDP professional expert blogroll: Dr. Timothy Derning

Timothy J. Derning, Ph.D., M.S.Ed.
Clinical and Forensic Psychology

Timothy J. Derning, Ph.D., M.S.Ed. is an forensic psychologist specializing in neurocognitive and neurobehavioral disabilities, including Intellectual Disability/Mental Retardation (ID/MR), developmental disabilities, high functioning Autism/Asperger’s disorder, Nonverbal Learning Disorder (NLD), Fetal Alcohol Spectrum Disorder, etc.

Over the course of the past 20 years he has testified in numerous capital and non-capital cases involving intellectual disabilities in juveniles and adults. He has given expert testimony in pre- and post-conviction cases regarding deficits related to mental retardation, adaptive abilities, developmental delay, social naïveté’, the impact of low intelligence, suggestibility, coercive influence, malingering, communication impairment, psychological trauma, psychopathology and mental illness as these pertain to forensic questions of trial competency, ability to understand and waive rights, confession validity, diminished capacity, competency for execution, dangerousness, etc. Dr. Derning has also prepared opinions in retrospective evaluations of mental retardation in ‘Atkins’ capital cases.

Dr. Derning has been retained and qualified as an expert in Federal courts, and in Superior Courts in California, as well as in jurisdictions of New York, Georgia, Arkansas, Texas, Florida, Hawaii, Arizona, Kansas, Missouri, Colorado, Nevada, New Mexico, and elsewhere. He served as the mental retardation expert in the case against Jesse Misskelley (‘The Memphis Three’), the mental retardation re-trial of Johnny Paul Penry in 2002, and mental retardation case Craig Godineaux (co-defendant, ‘Wendy’s Massacre’ Queens, NY). Dr. Derning was retained by Pillsbury, Madison & Sutro in two class-separate action suits brought against the California Dept. of Corrections and the California Board of Prison Terms regarding the identification and ADA accommodation of individuals with developmental disabilities (Clark v. California (1998); Armstrong v. Wilson (1999)).

He currently serves as a member of the American Association of Intellectual and Developmental Disabilities (AAIDD) Death Penalty Task Force.  He also serves as a member of Arc California’s Task Force for Fetal Alcohol Spectrum Disorder, and formerly served as a member of Arc’s California Task Force for Persons with Developmental Disabilities in the Criminal Justice System.

Over the past 20 years Dr. Derning has written and lectured on mental retardation and intellectual disabilities in the criminal justice system. He has conducted professional trainings and workshops for lawyers, mental health professionals, forensic psychologists, investigators, law enforcement, and the lay public at local, state, and national conferences. Working with Temple University's Institute on Disabilities he co-authored a training curriculum for mental health professionals regarding the assessment of defendants with mental retardation.

Dr. Derning serves as an independent psychological expert who subscribes to the ethical code of forensic psychology, which demands a balanced evaluation that is guided by the evaluation data and professional psychological research, favoring neither defense nor prosecution. He is not an advocate for individuals with intellectual disabilities, nor does advocate for or against the death penalty.

Contact information

710 W. Napa St.
Suite #2
Sonoma, CA  95476

Phone: 925-933-8661
Fax: 707-935-6224
timderning@aol.com


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Thursday, October 15, 2009

The psychology of expert testimony: Select research

Below are three empirical studies addressing the evaluation of expert testimony and variables impacting the acceptance of expert testimony.  They have been sitting in my "to read" in box since I started this blog.  I had intended to digest all three and post some general comments.  I now realize I'll likely never get to these in the near future, so rather than having them sit and be of no value, I instead have decided to post the references, abstracts, and provide links to the articles to those who want to read more in depth.  These are only a handful of studies.  It is my guess that there is a large body of empirical research (and books and/or book chapters) on expert testimony.  This post is not intended to be comprehensive.

The decision to post these three empirical studies was spurred by my last nights reading of a very interesting article in the current issue of the American Psychologist (2009, Vol 64, No. 6).  The article (Conditions for intuitive expertise: A failure to disagree) is by Daniel Kahneman and Gary Klein.  Below is the abstract following by some key conclusions.
This article reports on an effort to explore the differences between two approaches to intuition and expertise that are often viewed as conflicting: heuristics and biases (HB) and naturalistic decision making (NDM). Starting from the obvious fact that professional intuition is sometimes marvelous and sometimes flawed, the authors attempt to map the boundary conditions that separate true intuitive skill from overconfident and biased impressions. They conclude that evaluating the likely quality of an intuitive judgment requires an assessment of the predictability of the environment in which the judgment is made and of the individual’s opportunity to learn the regularities of that environment. Subjective experience is not a reliable indicator of judgment accuracy.

I zeroed in on the articles material that dealt with issues surrounding the development of expertise and conditions impacting expert judgments.  Although the research is not specific to expert testimony in court proceedings (as are the other three articles listed in this post), I found some specific conclusions worthy of mention and reflection, particularly after reading and thinking about a number of Atkins rulings discussed at this blog (all that included dueling psychological experts).  Below are a few conclusions and statements worthy of consideration.  Unless otherwise noted via underlining or bracket comments, these are all direct quotes from the article.
  • Kahneman coined the term illusion of validity for the unjustified sense of confidence that often comes with clinical judgment.
  • The intuitive judgments of some professionals are impressively skilled, while the judgments of other
    professionals are remarkably flawed.
  • Skilled judges are often unaware of the cues that guide them, and individuals whose intuitions are not skilled are even less likely to know where their judgments come from.
  • True experts, it is said, know when they don’t know. [emphasis added by blogmaster...I think this is a critical finding] However, nonexperts (whether or not they think they are) certainly do not know when they don’t know. Subjective confidence is therefore an unreliable indication of the validity of intuitive judgments and decisions.
  • The situation that we have labeled fractionation of skill is another source of overconfidence. Professionals who have expertise in some tasks are sometimes called upon to make judgments in areas in which they have no real skill.... It is difficult both for the professionals and for those who observe them to determine the boundaries of their true expertise. [emphasis added by blogmaster - this is so true and dangerous.  People often assume, since I develop intelligence tests and conduct research on intelligence theories, that I must know everything about these two topics.  Often when asked questions that are at my boundaries of expertise, it is tempting to provide an answer based on partial knowledge....but, consistent with the prior point emphasized above, the more professional response is to recognize one's limits of expertise and simply say "I don't know."  I wonder how often psychological experts in Atkins cases are faced with this fractionalization of skill expertise conflict?]

Kruass, D. A. & Sales, B. D. (2001). The effects of clinical and scientific expert testimony on juror decision making in capital sentencing. Psychology, Public Policy, and Law, 7 (2), 267-310. (click to view)
The Supreme Court and many state courts have assumed that jurors are capable of differentiating less accurate clinical opinion expert testimony from expert testimony based on more sound scientific footing and of appropriately weighing these two types of testimony in their decisions. Persuasion and jury decision-making research, however, both suggest that this assumption is dubious. The authors investigated whether mock jurors are more influenced by clinical opinion expert testimony or actuarial expert testimony. Results suggested that jurors are more influenced by clinical opinion expert testimony than by actuarial expert testimony and that this preference for clinical opinion expert testimony remains even after the presentation of adversary procedures. Limited empirical evidence was found for the notion that various types of adversary procedures will have a differential impact on the influence of expert testimony on juror decisions.

Levett, L. M. & Kovera, M. B. (2009).  Psychological mediators of the effects of opposing expert testimony on juror decisions.  Psychology, Public Policy, and Law, 15 (2), 124–148. (click to view)
This study examined the effectiveness of the opposing expert safeguard against unreliable expert testimony and whether beliefs about experts as hired guns and general acceptance mediate the effect of opposing expert testimony on juror decisions. We found strong evidence that the presence, but not the content, of opposing expert testimony affected jurors’ trial judgments and that these effects were mediated by mock jurors’ beliefs about general acceptance. The presence of an opposing expert affected jurors’ ratings of the general acceptance of research investigating sexual harassment in the workplace. Jurors’ beliefs about general acceptance then affected jurors’ ratings of plaintiff expert competence and research, which affected juror ratings of the probability that the plaintiff experienced a hostile work environment.

Schweitzer, N. J. & Saks, M. J. (2009).  The gatekeep effect: The Impact of Judges’ Admissibility Decisions on the Persuasiveness of Expert Testimony. Psychology, Public Policy, and Law, 15 (1), 1-18) (click to view)
In a pair of mock-trial studies of a possible “gatekeeper” effect, our participants were presented with a summary of a trial that included a piece of expert scientific evidence. The judge’s decision was manipulated to admit the scientific evidence, as well as the quality of the evidence and the credibility of the expert. Participants were found to be less critical of and more persuaded by expert evidence when it was presented within a trial, compared with the same evidence presented outside of a courtroom context. These findings suggest that, when judges allow expert testimony to reach the jury although the evidence is of low quality, they imbue it with undeserved credibility. Furthermore, no changes in participants’ perceptions of the evidence were found if the mock jurors were explicitly informed that the judge had evaluated the evidence, suggesting that the participants assumed that judges normally review evidence before allowing it to reach the jury. In addition, implications for basic research are discussed, as the moderating effects of a gatekeeper have not previously been considered by established models of persuasion.


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Friday, October 2, 2009

Science vs law in evaluating expert scientific testimony: From Vidal (2007) Atkins decision

Science vs law in the court room.

I've been skimming the CA Supreme Court Vidal (2007) Atkins-related decision and found a fascinating discussion of the distinction between science and law (thanks to In the News Blog for directing my focus to this section).  For those who don't want to read the entire PDF document previously posted, below is the relevant text.  Professionals who testify (or who are considering testifying) in Atkins cases, should be aware of the courts role in mediating/deciding expert-testimony based scientific debates.  Scientific debates in the court room are not the same as debates between scholars at conferences, in journal articles, etc.

Underlined/italics in the text below reflect the blogmasters emphasis.
In assessing the role the Full Scale IQ score (or any other single test score) plays in determining mental retardation, we must distinguish between rules of law and diagnostic criteria of psychology. The expert testimony below included a vigorous scientific debate as to whether Vidal’s Full Scale IQ scores should rule out a diagnosis of mental retardation. While one psychologist, McKinzey, gave his opinion that Full Scale IQ scores are, in all circumstances, the “best measure of general intelligence,” two other psychologists, Couture and Widaman, testified that where testing showed an extraordinarily wide divergence between Performance and Verbal IQ scores, the Full Scale measure was not a fully reliable measure. In support of their views, both sides gave scientific, not legal, reasons and cited scientific, not legal, authority

The Court of Appeal sided squarely with McKinzey in this debate over psychological standards, stating flatly that “general intellectual functioning is primarily determined by the defendant’s FSIQ score.” Like the psychologists who testified at the hearing, the lower court majority cited scientific sources (references published by the American Psychiatric Association and the American Association on Mental Retardation) rather than legal authority in support of its view. The Court of Appeal majority erred in thus purporting to resolve a factual question--the best scientific measure of intellectual functioning--as a matter of law. In finding the facts of a particular case, courts and juries untrained in science are sometimes called upon to resolve contested scientific issues, but such factual findings do not establish generally applicable rules of law. The superior court here, for example, found on the basis of Couture’s and Widaman’s testimony that in Vidal’s case his Full Scale IQ scores in the low average to average range did not preclude a finding of mental retardation. In a given case an appellate court might, within its proper role, hold that such a finding was not supported by substantial evidence in the hearing record. But an appellate court cannot convert a disputed factual assertion into a rule of law simply by labeling it a “legal standard,” as the Court of Appeal purported to do here.

Courts also must sometimes evaluate disputed scientific assertions in the course of determining the admissibility of expert scientific testimony. In determining the evidentiary reliability of a new scientific technique, California courts look primarily to the technique’s general acceptance in the relevant scientific community, an approach designed to ensure “ ‘that those most qualified to assess the general validity of a scientific method will have the determinative voice.’ ”(People v. Kelly (1976) 17 Cal.3d 24, 31, italics omitted.) Even under the arguably more searching federal court inquiry described in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, “the focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” (Id. at p. 595.) The courts’ evidentiary gatekeeping function is thus not a warrant for judicial intervention in genuine scientific debates over substantive principles. In any event, we are not faced here with a question of admissibility of disputed evidence but with the question whether, when both sides of a scientific dispute have been presented by expert testimony, an appellate court may declare the debate’s winner as a matter of law.

The Legislature has mandated that trial courts, in determining mental retardation for Atkins purposes (Atkins, supra, 536 U.S. 304), find whether the individual’s “general intellectual functioning” is significantly impaired (§ 1376, subd. (a)), but has not defined that phrase or mandated primacy for any particular measure of intellectual functioning. The question of how best to measure intellectual functioning in a given case is thus one of fact to be resolved in each case on the evidence, not by appellate promulgation of a new legal rule.


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Tuesday, September 29, 2009

Court decision: Vidal 2007 California Supreme Court decision: Use of part scores vs FS IQ


Two different individuals, one a legal professional the other a neuropsychologist, independently sent me copies (within hours of each other) of a very intriguing 2007 California Supreme Court ruling in an Atkins case.  After taking a quick peek, I can see why.  The court dealt with the thorny issue of using the individuals composite Full Scale IQ vs his Verbal IQ to determine if the individual was mentally retarded as per Atkins criteria.  The subject had been repeatedly tested with various editions of the Wechsler batteries over many years and displayed a very large and consistent Verbal vs Performance IQ split.

As reported at In The News Blog: "The Court unanimously held that a defendant may be spared the death penalty because he is mentally deficient in one area, even if his overall IQ score falls in the normal range. The decision overturned an appeals court finding that “full-scale IQ” was the best measure of intelligence."  Click on the In the News Blog for a lengthier summary.

I've posted copies of the original 2005 decision (click here) and the final California Supreme Court decision (click here) for readers to digest. 

I'm going to read the decision carefully as it raises many important intelligence testing and measurement issues.  I'm not sure if I will eventually make a single post re: my observations, comments, conclusions, quesitons, etc., or if I will present snippets from the two decisions and make comments in separate posts.

My knee jerk reaction, after seeing four different Wechsler test administrations (and a fifth abbreviated Wechsler---WASI), all that produced very consistent findings, is why someone didnt' recommend the administration of other measures of cognitive abilities (not measured by the Wechslers) to gather information re: important cognitive abilities related to intellectual functioning.

I would love to hear from other psychologists, intelligence scholars, and experts in mental retardation re: their opinion of the courts ruling and the evidence presented, logic of the court, etc.  This is a case that can be very instructive.  I just need to find time to do it justice.  Guest blog posts would be much appreciated.


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Friday, September 25, 2009

Determining Current Level of Intellectual Functioning: The Courts Dropped the Ball (guest post by K. Foley)


On month ago the US 5th Circuit Court of Appeals rendered a psychometrically puzzling (and troubling) decision in an Atkins mental retardation death penalty case, in favor of the defendant...Eric Lynn Moore.  It was brought to my attention by Kevin Foley who wanted to share his observations regarding the decision (in a guest blog post), particuarly since the ruling hinged on the unusal procedure of mathematically averaging three different IQ scores obtained across decades.  According to the records, the courts averaged a group IQ score administered when the defendent was 7 years old, a 1991WAIS-R, and a 2004 WAIS-III.  Although the scores were very consistent, I have never heard of such a simple mathematical method being applied to scores from different tests across such a long period of time.  The measurement questions raised by this simplistic approach are beyond the scope of a single blog post. 

My initial amazement is echoed in a  32 page dissenting opinion by Appeals Judge Jerry Smith.  As per an AP story
  • Appeals Judge Jerry Smith, in a 32-page dissent that was twice as long as the court's decision, called the majority ruling "intellectually sluggish" and chastised his colleagues on the court for using "haphazardly-applied standards of review, casually-read caselaw, and superficially-scrutinized evidence." 
 Judge Smith's dissenting opinion starts on page 16 of the final court ruling.


Kevin Foley was similarly struck by the manner in which the court invoked the simplistic approach to establishing mental retardation.  As a result, he wrote the following guest blog post which I'm posting on his behalf "as is."  In addition, I've located copies of the final ruling (click here), and three prior appeals (click here, here, and here). 

I've only skimmed the final ruling but would urge all psychologists  involved in Atkins cases, or psychologists who do intellectual testing of any kind, to read it.  The ruling is an interesting window into a courts logic re: how intelligence testing and scores can be viewed...and how  measurement and psychometric principles can be ignored.   Aside from the simple arithmetic averaging of three different IQ scores, other interesting comments center on the WAIS being the "standard" IQ test for Atkins cases and the argument for determining an MR diagnosis based on IQ scores only (dismissal of adaptive behavior evidence and testimony).  I will be reading it more and may offer additional comments upon greater reflection. 

Below is the Kevin Foley's unedited guest post:

Moore v. Quarterman, Case No. 05-70038, 5th Cir., Aug. 21, 2009 (unpublished).

Eric Lynn Moore, an African American inmate under a sentence of death, sought to escape the death penalty by invoking Atkins. The federal district court ruled in Moore’s favor, exempting him from the death penalty. The state appealed. According to the Fifth Circuit Court of Appeals, Moore obtained the following IQ scores: a 76 on the WAIS-R; a 66 on the WAIS-III; and a 74 on the Primary Mental Abilities test. Moore also scored in the bottom eight-tenths of a percentile on the TONI-2. The dissenting opinion in Moore states that the PMA was given to Moore when he was in the first grade; the WAIS-R was given to Moore, in prison, in 1991; and the WAIS-III was given to Moore in 2004. The district court resolved the issue of Moore’s current intellectual functioning by averaging the three scores to come up with an average score of 72, to which he applied the standard error of measurement. The appeals court approved this approach, stating, “In averaging the test scores and relying on the five-point margin of error . . . the district court attempted to find a way to reconcile all three test scores.”

The lone dissenting judge issued a scathing dissent, including biting comments accusing the majority of using “[h]aphazardly-applied standards of review, casually-read case law, and superficially-scrutinized evidence [which] make for an unfortunate combination; here, they result in shallow analysis and the wrong result. The only mitigation is that the majority opinion is unpublished, so it is not binding on anyone or any court.” Ouch!

The dissent correctly, in my opinion, took the trial and appeals courts to task on the issue of using an average of IQ scores from as far back as 1973 to determine current level of functioning. First, the trial court neglected to address issues surrounding the accuracy of the three scores. According to the dissent,

“All three of those test results were called into question at the evidentiary hearing. The PMA score, for example, is only a number; there is no evidence that it was properly scored or whether it was administered individually, as the test protocol requires, or to an entire school class. The vocabulary section of the WAIS-R, according to [defense expert] Llorente, was improperly scored, and in a way that may have slightly inflated the score. Llorente also testified concerning the ‘Flynn Effect,’ the apparent increase in the average IQ scores in populations over time, as measured by a given IQ test. Because the WAIS-R was an older test when it was administered to Moore, Llorente suggested adjusting Moore’s score of 76 downward by about four points.”

In addition, the state’s expert asserted that Moore’s expert improperly scored the WAIS-III test. The dissent correctly complained that the trial court took the easy way out by averaging the scores.

“Instead of grappling with those conflicting upward and downward adjustments, the district court gave the three scores equal weight, averaged them, reached an IQ of 72, applied the ‘five-point standard error of measurement,’ and therefore concluded that Moore had borne his burden of proof. It is that finding, and the district court’s actual reasoning in making it, that the panel must consider, and yet the majority refuses to address it at anything resembling an acceptable level of detail. . . .

“For one thing, there is no legal or record support for taking an average of Moore’s IQ scores. Averaging IQ scores is, to say the least, a creative approach to their analysis and comparison and is highly unusual. Neither expert suggested, employed, or endorsed it. The district court assumed, without any evident backing, that averaging is a meaningful way to compare scores from different IQ testing protocols administered years apart and that the margin of error was the same for all three and was the same after the averaging as before. All of those assumptions are facially implausible, and the district court had no apparent reason to think any of them is correct.”

Although the dissent erred in other respects (some of which may make for other interesting blog entries), it hit the nail on the head on this issue. Although these issues – assertions of invalid results, mis-scoring of tests, application of the Flynn Effect, and determining what weight to give to certain evidence - might be complicated and hard to resolve, that is what courts do. They should educate themselves and use the experts to provide the information necessary to properly decide the case. Moreover, federal judges can appoint an independent expert to offset the parties experts, it the judge feels the need for some impartial testimony to help guide the court.

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