Defense attorneys may request a mitigation or resentencing evaluation to explore mitigating factors that may provide a humanizing narrative of the defendant's life. The purpose of a mitigation evaluation is not to determine the defendant's criminal culpability but to investigate whether developmental and psychological factors reduce the defendant's moral culpability. The concept of moral culpability, foundational to mitigation evaluations, acknowledges that we do not arrive at our decisions based on equivalent psychological capacities and resources. Alternatively, the "degree of choice" a defendant exhibits during offense conduct is significantly influenced by biological, neurodevelopmental, and psychosocial factors.
In cases of youthful offenders, our experts carefully consider the impact of incomplete brain development on the defendant’s offense conduct. Brain architecture and connectivity do not fully develop until age 25, rendering the thinking and brain processes of youthful offenders fundamentally distinct from adults over the age of 25. In regions including the frontal lobes, immature brain development is significantly implicated in crime-related factors, including impulse control, values, judgment, empathy, emotional regulation, and the capacity to consider long-term consequences.
Youthful offender brain immaturity may interact synergistically with neurodevelopmental and psychosocial factors to dramatically reduce the offender’s maturity and degree of choice when engaging in criminal activity. Thus, a youthful offender mitigation evaluation requires a careful investigation of potential neurodevelopmental and psychosocial factors that increase the risk for violence, including, but not limited to, in-utero drug and alcohol exposure, pre-mature birth, brain injuries, malnutrition, family dysfunction, psychological trauma, mental illness, and substance abuse.
In certain mitigation or resentencing evaluations, our experts may be asked to assess the defendant’s risk of reoffending. Statistical research indicates that most (but not all) juvenile offenders, even those who commit serious crimes, desist criminal activity as they enter adulthood. When conducting a violence risk assessment, our experts integrate this base rate data with an individually based analysis of violence risk factors and protective factors.
Our experts are experienced in conducting mitigation evaluations in various settings, including capital sentencing, non-capital felonies, and various resentencing schemes including Franklin hearings.
Dusky v. United States is the landmark case governing adjudicative competency, holding that the test for competence is "whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him." In California, the adjudicative competency standard adds an additional component to Dusky by holding that the competency impairment must be the “result of a mental disorder or developmental disability.”
When conducting a competency evaluation, our experts often speak with the defendant's attorney in detail about her observations of the defendant's symptoms, potential dispositions, and viable legal strategies. This discussion aims to clarify the specific basis for the referral, if from defense counsel, and to provide a framework for assessing the capacities the defendant must exhibit to meet the demands of their unique legal circumstances. To assess competency, our experts rely upon established forensic assessment instruments that provide data addressing the conceptual gap between legal and psychological constructs. We carefully differentiate between competence to assist counsel (the ability to comprehend charges and the legal process) and decisional competence (the capacity to apply this knowledge to one's circumstances rationally). Our evaluations investigate cultural and language factors as relevant to competency. We also assess for the possibility of feigning or malingering during our evaluations.
Our team is experienced in conducting a wide array of competency evaluations with individuals demonstrating psychiatric conditions, including, but not limited to, psychosis, mania, autism, developmental disability, mood disorders, personality impairment, and neurological impairment.
Attorneys may request violence and sexual violence risk assessments in diverse legal settings, including capital sentencing, MDO/NGI release hearings, diversion, and immigration evaluations. Critical to an evidence-based approach to violence risk assessment is the utilization of peer-reviewed violence risk assessment instruments. Measures such as the HCR-20 V3 utilize an approach that considers both historical (i.e., static) and dynamic (i.e., present and/or modifiable) risk factors in developing violence risk formulations tailored to the individual's history, current circumstances, and potential future circumstances. Our experts additionally conduct an individualized assessment to determine the sequence of external and internal events that have historically contributed to violent episodes and may contribute to future violent episodes. We may recommend multi-modal interventions that reduce future violence risk upon request.
Our experts have conducted a diverse range of violence risk assessments of individuals with diagnoses, including, but not limited to, substance use disorders, mood disorders, psychotic disorders, severe neuropsychological impairment, autism, psychopathy, and personality disorders. We are versed in the retrospective assessment of violence as applicable to civil litigation.
In California, juvenile transfer hearings are governed by WIC 707. Pursuant to this statute, forensic psychologists may be requested to provide an opinion regarding the criminal sophistication and the amenability to the treatment of the minor. Importantly, WIC 707 does not only contemplate the sophistication of the offense conduct. Alternatively, “the juvenile court may give weight to any relevant factor, including, but not limited to, the minor's age, maturity, intellectual capacity, and physical, mental, and emotional health at the time of the alleged offense, the minor's impetuosity or failure to appreciate risks and consequences of criminal behavior, the effect of familial, adult, or peer pressure on the minor's actions, and the effect of the minor's family and community environment and childhood trauma." Thus, when considering the sophistication of a juvenile, the forensic expert must complete a comprehensive evaluation to determine the presence or absence of the above features of immaturity, impairment, or adverse psychosocial factors. Moreover, the impact of incomplete brain development on functional maturity requires careful consideration.
During an analysis of treatment amenability, the forensic psychologist must analyze the juvenile's criminogenic needs. These refer to factors statically related to recidivism, which may serve as a focus of intervention to reduce future violence risk. An analysis of criminogenic needs may be integrated with a consideration of factors, including, but not limited to, the history and nature of past juvenile conduct, the juvenile's past response to treatment interventions, and research involving juvenile desistence. Our experts have conducted transfer evaluations in juveniles demonstrating a wide range of psychological impairments.
Although NGRI findings are popularized in the media, insanity defenses are, in fact, rarely raised in felony proceedings. Following the McNaughton Rule, California posits that legal insanity requires that the defendant was incapable of knowing or understanding the nature and quality of her actions or distinguishing right from wrong at the time of the commission of the offense. During NGRI proceedings, forensic experts are called upon to reconstruct the defendant's psychiatric functioning and mental state during his alleged offense conduct. Notably, the critical question is not whether a psychiatric diagnosis exists but whether there is a nexus between a qualified diagnosis and an individual's understanding of the nature of their actions and their ability to distinguish right from wrong.
Factors that a forensic psychologist may consider during an insanity evaluation include, but are not limited to, diagnosis and symptoms, the reliability of the defendant's self-report, intoxication or its absence, amnesia or its absence, verbal coherence and affect during offense conduct and behavior in the weeks leading up to the instant offense. It is critical that the expert considers cultural variables that may have impacted the defendant's presentation at the time of the offense conduct.
Of note, psychological testing provides a snapshot of current, rather than past, functioning. Thus, while testing may aid in establishing a psychiatric diagnosis, or lack thereof, it should not be assumed that psychological test results apply to the mental state at the time of the offense, particularly if a defendant has been psychiatrically medicated since their arrest. A careful review of jail records, psychiatric records (if available), and police reports, in addition to a detailed evaluation, are typically critical components of an NGRI evaluation.
Suspects can and do falsely confess to crimes they did not commit, and they do so for a variety of reasons, including interrogation factors, such as the length of time in confinement prior to interrogation; the length of the interrogation itself; implied threats or promises made by detectives during the interrogation; the use of false evidence ploys (e.g. claiming to have evidence against the suspect); and controversial and coercive interrogation tactics, such as the Reid technique, which presume the guilt of the suspect. Data from the Innocence Project suggests that the problem of false confessions is more common than people think. According to a 2011 article, defendants made false confessions or admissions to law enforcement in approximately 25% of the wrongful convictions subsequently overturned with DNA evidence. Individual factors also contribute to false confessions, such as the suspect’s physical (e.g. fatigue, hunger, intoxication, illness) and mental state (e.g. recent trauma, depression, anxiety, psychosis); cognitive limitations; language or acculturation issues; lack of experience in the criminal justice system; and suggestibility.
Utilizing personality and suggestibility testing, as well as a comprehensive clinical interview and review of the interrogation itself (e.g. video or audio), a psychological evaluation can assist in identifying the relevant factors present at the time of the interrogation which may have reduced the reliability of a suspect’s confession. An evaluation cannot determine whether a confession is true or false; a defendant, guilty or innocent. Rather, expert witness testimony can establish that innocent people can and do confess and that certain factors increase the risk of false confession. Because jurors have difficulty assessing the reliability of confession evidence, expert testimony can also assist in educating the jury about the factors which contribute to false confession and improving jurors’ knowledge and discernment in evaluating confession evidence.
While psychologists and psychiatrists routinely evaluate current psychological functioning in a treatment context, the fundamental question in a forensic personal injury evaluation is not current psychological functioning but whether an alleged traumatic event has resulted in a deterioration of pre-injury psychological functioning. Thus, the forensic expert is faced with three primary questions in personal injury litigation. First, is the plaintiff psychologically impaired? Second, does this impairment represent a deterioration from pre-injury psychological functioning? Third, is the alleged trauma the proximate cause of this psychological deterioration?
Answering these questions requires the systematic use of multiple sources of information, including a detailed clinical interview, objective psychological testing, the assessment of response style or malingering, and interviews with individuals in the plaintiff's life who have interacted with the plaintiff over time. These data sources are integrated with research on the base rates of mental disorders after traumatic events, the impact of litigation on psychological functioning, and a careful consideration of co-occurring stressors.
While PTSD is frequently alleged in personal injury proceedings, it is one of several possible pathways resulting from trauma. Notably, research demonstrates that most traumatic events do not result in PTSD, although interpersonal violence and combat result in higher rates of this disorder.
In cases where plaintiffs demonstrated a surprising degree of impairment after an alleged trauma, which cannot be attributed to malingering or co-occurring stressors, an expert must carefully distinguish between an “eggshell plaintiff” and a "crumbling skull plaintiff." An eggshell plaintiff is an individual with limited pre-injury coping capacities uniquely vulnerable to trauma's impact. In contrast, a crumbling skull plaintiff presents with a pre-existing mental disorder that would have worsened regardless of the impact of the alleged trauma.
Our experts have investigated the impact of psychological trauma in cases including, but not limited to, military trauma, natural disasters, domestic violence, sexual harassment, auto accidents, airplane accidents, childhood physical and sexual abuse, stalking, sexual assault, and exposure to community violence.
Neuropsychologists and neurologists are frequently requested to evaluate claims of traumatic brain injury in civil cases arising from a variety of causes. During TBI evaluations, a neurological or neuropsychological expert typically provides opinions regarding the plaintiff's pre-injury functioning, injury causation, whether the diagnostic criteria for brain trauma are met, any impairment or disability arising from brain trauma, reasonable and necessary treatment, and prognosis and future care needs. While neurologists and neuropsychologists bring both unique and overlapping skill sets, factors that may be considered in a TBI evaluation include assessment of severity of injury, review of brain imaging, consideration of the presence or absence of comorbidities, knowledge regarding known disease processes, physical and emotional correlates as related to the injury, performance and expectations of such on standardized testing, and an understanding of base rates of impairment following injury types. Our experts are also well versed in evidence based care practices for this condition. In all TBI cases, and in mild injuries or concussion in particular, a consideration of exaggeration or simulation of symptoms or psychosomatic presentations is warranted.
Our neurological and neuropsychological experts have extensive experience evaluating and testifying regarding traumatic brain injury resulting from a diverse range of injuries.
Forensic psychological or psychiatric evaluations may be requested in employment cases involving allegations of disparate treatment, adverse impact, a hostile or abusive work environment, lack of reasonable accommodation, and retaliation and victimization. In this legal context, experts may provide an opinion regarding whether the alleged discriminatory conduct of the employer was a significant contributor to a claimed injury and whether that injury would have occurred but for the conduct.
Forensic experts must carefully determine pre-injury psychological functioning during evaluations of workplace discrimination and harassment. This is relevant to identifying possible pre-existing conditions and factors that increase vulnerability to harm. Moreover, the reconstruction of pre-injury functioning may serve as a benchmark from which the court can determine the nature and severity of damages. Establishing pre-injury functioning requires the systematic use of multiple sources of information, including a detailed clinical interview, a review of records, and interviews with individuals in the plaintiff’s life who have interacted with the plaintiff over time.
The use of objective psychological testing is a critical component of workplace discrimination and harassment evaluations. Testing provides an objective basis when determining current psychological impairment or its absence. Moreover, testing can aid in assessing whether a plaintiff is engaging in symptom exaggeration or fabrication.
During a causation analysis, experts may weigh multiple factors, including pre-existing conditions, pre-injury coping capacities, the plaintiff’s emotional status during the course and aftermath of the alleged discrimination, the impact of employment stressors unrelated to discrimination/harassment, and co-occurring stressors or traumas unrelated to employment.
Our experts are experienced in the forensic assessment of alleged discrimination and harassment in the context of civil litigation and workers' compensation claims.
With an aging population, probate attorneys and fiduciaries frequently request the evaluation of testamentary capacity. Banks v. Goodfellow (1870), the landmark case governing testamentary capacity, outlined the criteria to consider, including the testator's ability to know what a will is, know the natural objects of one's bounty, know the nature and extent of one's estate, and have a general plan for distribution. In California, Probate Code 6100.5 retains many of these components. In contrast, Probate Code 810-812 (the higher standard) requires a higher degree of reasoning than contemplated by Banks v. Goodfellow and is thus more sensitive to deficits in executive functioning.
Before executing a will or trust, the assessment of current testamentary capacity may be requested to safeguard against future litigation. In contrast, the retrospective evaluation of testamentary capacity typically occurs when a deceased testator's estate is challenged and requires the reconstruction of the decedent's mental state at the time of the testamentary act.
When conducting a testamentary capacity evaluation, the expert must consider the complexity of the act in question. More complex testamentary acts require a greater degree of ability to meet the standard for capacity. This is analogous to the more remarkable cognitive ability required to consent to a complex brain surgery than a routine course of antibiotics. While a diagnostic analysis may be helpful during testamentary capacity evaluations, diagnosis, in and of itself, does not equate to incapacity. Similarly, despite the potential value of neuropsychological testing, research still needs to establish a neuropsychological profile that reliably predicts capacity. Ultimately, an evidence-based approach to evaluating testamentary capacity requires the systematic use of multiple data sources to determine if the testator meets, or has previously met (in the case of a decedent), the capacities articulated in the relevant legal standard.
Our experts are experienced in the present and retrospective assessment of testamentary capacity in cases involving dementia, medical illness, alleged brain injury, and substance abuse.
Allegations of undue influence may be raised in the probate arena, often in cases involving testamentary capacity. Undue influence is excessive persuasion to the extent that the testator's free will is overcome. Importantly, undue influence becomes moot when an individual lacks testamentary capacity; in this case, there is no will to overcome. Alternatively, an individual with testamentary capacity may fall victim to undue influence.
In California, the assessment of undue influence is governed by WIC 15610.70, which instructs the courts to consider the victim's vulnerability, the influencer's apparent authority, the actions and tactics used by the influencer, and the equity of the result. Psychological conditions that may increase the vulnerability of the testator include, but are not limited to, dementia, brain injury, mental illness, dependent personality features, or situational factors, including bereavement or relocation. Forensic experts may additionally consider the relational dynamics between the testator and influencer to determine whether the testator perceived the influencer to be an authority. Forensic psychologists and psychiatrists must limit their testimony to questions within their specialized expertise. Thus, it is often inappropriate to opine regarding strictly factual issues related to undue influence, such as whether the testamentary act was equitable.
Our experts are experienced in assessing undue influence in cases involving both living and deceased testators with a diverse range of medical and psychiatric presentations.
An evaluation of fitness for duty focuses on whether an employee can safely and effectively perform her usual and customary duties. Moreover, forensic experts are often called upon to provide an opinion regarding whether psychiatric interventions or occupational accommodation could facilitate a return to work. When conducting a fitness-for-duty evaluation, forensic experts translate a job description into measurable psychological capacities to assess work capacity. For instance, working as a transit operator may require specific capacities, including, but not limited to, operating complex machinery, maintaining composure during challenging interactions with customers, staying focused while driving, and communicating clearly with supervisors and other transit operators.
Fitness for duty evaluations are present-focused and emphasize current employment capacity. Confidential health information, including past mental health conditions, is often excluded from reports due to privacy concerns. Ultimately, the reports and findings of forensic experts performing fitness-for-duty evaluations must be limited to only the information necessary for an employer to make sound employment decisions.
Our experts have conducted fitness-for-duty evaluations in cases involving psychological trauma, neuropsychological impairment, substance abuse, and mental illness.