Assessing Trauma-Related Dissociation in Forensic Contexts: Addressing Trauma-Related Dissociation as a Forensic Psychologist,Part II

Chronic dissociative reactions and dissociative disorders can occur following traumatic events and are associated with suffering and impaired functioning. Therefore, trauma-related dissociation could be part of the claims made in civil actions or contribute to mitigation or an insanity defense in criminal actions. Dissociative reactions to trauma, including dissociative disorders, are more common than most mental health professionals realize. Unfortunately, few professionals have training in the assessment of dissociation, and forensic experts may be unaware of research indicating that standard interpretations of well-regarded assessment instruments can result in inaccurate determinations of symptom exaggeration in cases with dissociation. This paper is the second paper of a two-part series that aims to expand assessors’ knowledge about trauma-related dissociation (TRD) and enhance their ability to assess and present information about dissociation. In this article, we focus on the forensic assessment of TRD and discuss: dissociative symptoms; complex trauma; trauma-related disorders; an approach to assessment of TRD; trauma-related reactions that can impede the detection of TRD; and differential diagnosis of genuine versus feigned dissociation. In addition, we review research related to the validity and appropriate interpretation of the following measures in use with persons with TRD: Dissociative Experiences Scale, Multiscale Dissociation Inventory, Somatoform Dissociation Questionnaire, Trauma Symptom Inventory-2, Multidimensional Inventory of Dissociation, Structured Clinical Interview for Dissociative Disorders-Revised, Minnesota Multiphasic Personality Inventory-2, Personality Assessment Inventory, Structured Interview of Reported Symptoms, Test of Memory Malingering, and the Gudjonsson Suggestibility Scale.     

Trauma-Related Dissociation Is No Fantasy: Addressing the Errors of Omission and Commission in Merckelbach and Patihis (2018)

Dissociation is commonly a response to trauma that can be associated with significant impairment. In order to deal with dissociation in court from a comprehensive, scientifically informed, and valid perspective, Brand, Schielke, and Brams (Psychological Injury and Law, 10, 283-297, 2017a, b) provided a balanced view of dissociation, its characteristics, evidence base, and best assessment practices. Without an approach such as this, forensic experts risk having insufficient knowledge in its causation, phenomenology, and assessment and accordingly misunderstand trauma-related dissociation (TRD). Brand et al. (Psychological Injury and Law, 10, 283-297, 2017a, b) addressed this issue by providing an overview of TRD relevant to forensic contexts, acknowledging some of the erroneous and misinformed approaches to the topic. Merckelbach and Patihis (2018) offered a critique of Brand et al. (Psychological Injury and Law, 10, 283-297, 2017a, b) that illustrated this lack of knowledge and misunderstanding about TRD. Many of the statements made by these authors are conceptually inaccurate or scientifically misinformed. As we show, they were incorrect when they stated that research is lacking about the inter-rater reliability of dissociative disorder (DD) diagnoses. They were unaware of the error rates of tests and interviews among dissociative samples, which we present here. Merckelbach and Patihis challenged Brand et al., arguing their methods and literature review “lacked a connectivity to existing science” (p. 3), despite extensive citations of studies with DD patients. They argued that we failed to adequately consider malingering despite our discussions of empirically supported methods for assessing it. We show that Merckelbach and Patihis overlooked research that does not support their views. As we review their comments, we illustrate their pattern of misreading and misunderstanding our papers, as well as lapses in their reasoning. The current paper reinforces that in the forensic context, experts can acquire adequate understanding of TRD and its evidence base, and put forward arguments against any harsh critique of the area that is uninformed about, misunderstands, or includes omissions and errors in critical conceptualization, state-of-the-art assessment practices, and research methodology and results.     

Memory for murder. A psychological perspective on dissociative amnesia in legal contexts

There is currently a complex and inconsistent state in the law relating to dissociation and dissociative amnesia (McSherry, 1998). Although dissociative amnesia in defendants is relevant to both competency to stand trial and criminal responsibility in principle, courts have typically assumed a skeptical stance toward such claims in practice. However, there is considerable evidence from both nonoffender and offender populations to support the validity of dissociative amnesia in defendants. Further, there is information available to aid in the evaluation of amnesia, such as the quality of the report itself and characteristics of the person reporting the amnesia (e.g., psychopathy). When consideration is given to the legal response to reports of dissociative amnesia by complainants, the situation becomes even more complex. While some courts have rejected recovered memory evidence, others have convicted defendants of historical offenses based on such evidence. In some cases, judges have argued that jurors should be left to decide on the validity of recovered memories based on their common sense and experience. The uncritical acceptance of the validity of repressed memories in complainants by many courts stands in stark contrast to the response to claims of amnesia from defendants. It seems apparent that the courts need better guidelines around the issue of dissociative amnesia in both populations. We think that the increasing scientific understanding of memory in the past decade (see Schacter, 1999) can meaningfully contribute to the development of such guidelines. Responsible, nonpartisan expert testimony from mental health professionals would be one step in the direction of rectifying the current state of law in regards to dissociation.     

Fairness, Justice, and Legitimacy: Experiences of People's Judges in South Russia

Which criteria do Russians use to evaluate the fairness of their judges, and how does perceived fairness of actual trials influence general beliefs about Russian courts? Lay assessors at courts in South Russia were asked about their experience serving on mixed courts. The justice of the verdicts rendered and the fairness of judges partly explain the respondents’ view of national courts. According to the results, the respondents are also using similar criteria for fairness as Americans or Germans. The social and psychological group effects in a Russian court of lay assessors exhibit a striking similarity to other Western tribunals.     

Protecting the Continuing Duties of Loyalty and Confidentiality in Ineffective Assistance of Counsel Claims

The success or failure of an ineffective assistance of counsel claim turns largely on the testimony of trial counsel. It is therefore common for the government to communicate ex parte with trial counsel in order to formulate its response to such a claim. But even after the representation has ended, trial counsel continues to be bound by duties of loyalty and confidentiality to their former client, as well as the attorney-client privilege, subject to a limited waiver relative to information that is reasonably necessary to respond to the ineffectiveness claim. Because of their interests in the litigation, however, neither trial counsel nor the government is positioned to objectively decide what information is covered by that waiver. In order to ensure that trial counsel respects their ethical duties to their former client and to protect the sanctity of the attorney-client relationship, post-conviction courts should prohibit trial counsel from communicating ex parte with the government. These courts should instead require that all such communications take place on the record—ideally at a deposition, but alternatively through affidavits.     

Double Whammy: Lay Assessors as Lackeys in Chinese Courts

Primarily drawing on in‐depth interviews with lay assessors and judges in Chinese courts, this study suggests that assessors are little more than lackeys. To determine the role of lay participation in decision making across different jurisdictions, this article proposes two variables. The first is whether lay assessors are separate from, or mixed with, professional judges; the second is whether the regime is democratic or authoritarian. Viewed according to these variables, China's lay‐assessor institution is subject to a double whammy: one, the superior legal knowledge of professional judges and their dominance in procedures, and two, the ultimate control of the regime over judges, who, for self‐protection, firmly control lay assessors. This article advances our understanding of the operation of the Chinese lay‐assessor institution, and more generally the relationship between lay participation and political regimes.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

Meeting the Mandates of Gault: Automatic Appointment of Counsel in Juvenile Delinquency Proceedings

In 1967, the United States Supreme Court ruled that children facing delinquency charges have a constitutional right to defense counsel. Despite that mandate, state assessments of juvenile defense systems have consistently found high rates of waiver of counsel. Children are facing harsh punishments with potentially lifelong consequences without the benefit of a trained defense attorney at their side. Given the severity of the consequences of juvenile court involvement and society’s understanding of the developmental science behind adolescence, this article argues that to meet constitutional requirements, juvenile courts must automatically appoint defense counsel for all children facing delinquency charges.     

Helping Children in the Child Welfare Systems Heal from Trauma: A Systems Integration Approach

Numerous organizations touch the lives of children and their families following incidents of maltreatment, including family/dependency courts, child welfare agencies, foster parent associations, foster care agencies or substitute care facilities, mental health agencies, and others. The way these organizations work together is critically important. They have the potential to promote child safety and reduce the harmful impact of maltreatment on children, but also, unfortunately, at times their actions may worsen the traumatic experience for children and their families. The National Child Traumatic Stress Network conducted a survey of 53 child‐serving organizations in 10 states, to assess the ways the organizations gather and share trauma‐related information and the basic training about child trauma their staffs receive. The goal was to determine how the various service systems, including the courts, communicate with each other about trauma and the extent to which, alone or in combination, they promote children's healing following traumatic events. The survey results point to a need to improve collaboration on issues associated with child maltreatment and trauma. Judges can be important leaders in bringing about necessary changes. Recommendations for judges and courts are included.     

The Right to Counsel in Juvenile Court: The Conundrum of Attorneys as an Aggravating Factor at Disposition

In re Gault provided procedural safeguards in juvenile courts, including the right to counsel. Decades later, judges continue to resist appointing lawyers. And, when they do appoint counsel, lawyers appear to be an aggravating factor when judges sentence youths. In 1995, Minnesota enacted law reforms, including mandatory appointment of counsel. As a cost‐saving strategy, the law also converted most misdemeanors into status offenses and restricted judges’ sentencing authority in order to deny juveniles a right to counsel. This study compares how juvenile courts processed 30,270 youths in 1994—the year before the changes—with how they processed 39,369 youths in 1999 after the amendments. We assess changes in appointment of counsel and their impact on sentencing practices. We report inconsistent judicial compliance with the mandate to appoint counsel and a positive decrease in the number of youths removed from home.     

The right to counsel in juvenile court

Research Summary The U.S. Supreme Court in In re Gault granted delinquents the right to counsel in juvenile courts. Decades after Gault, efforts to provide adequate defense representation in juvenile courts have failed in most states. Moreover, juvenile justice administration varies with structural context and produces justice-by-geography. In 1995, Minnesota enacted juvenile law reforms, which include mandatory appointment of counsel. This pre- and post-reform legal impact study compares how juvenile courts processed youths before and after the statutory changes. We assess how legal changes affected the delivery of defense services and how implementation varied with urban, suburban, and rural context. Policy Implications We report inconsistent judicial compliance with the mandate to appoint counsel. Despite unambiguous legislative intent, rates of representation improved for only one category of offenders. However, we find a positive reduction in justice by geography, especially in rural courts. Given judicial resistance to procedural reforms, states must find additional strategies to provide counsel in juvenile courts.     

Informal,Inquisitorial, and Accurate: An Empirical Look at a Problem‐Solving Housing Court

Substantive justice is often seen as elusive in courts dominated by low‐income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented. Relying on in‐court observations of nearly 300 hearings, and a longitudinal review of nearly seventy‐five cases, this article surfaces the regularized procedures utilized by a purported “problem‐solving” housing court, and theorizes that the inquisitorial features of judicially controlled investigation and enforcement may motivate landlords to repair substantiated housing code violations. This article adds nuance to our understanding of informal justice by identifying the hidden procedural formalisms that may guide alternative decision‐making processes. Furthermore, it evaluates the relationship of one iteration of experimental formalism to substantive justice, and suggests that inquisitorial procedures may be correlated with improved accuracy in case outcomes.     

Cops and Robbers: Selective Literalism in American Criminal Law

Police often ask people to consent to a search of their person or possessions. Many people agree to allow such searches because they interpret the officers' ostensible "requests" as indirect commands. Yet courts routinely interpret police utterances in this situation as requests. A similar issue arises in the context of custodial interrogation. People being interrogated are inclined to invoke their right to counsel in relatively indirect or tentative terms. Yet courts often conclude that the suspect did not really "request" the presence of counsel. We refer to this inconsistency as "selective literalism," by which we mean that courts selectively consider pragmatic circumstances in interpreting the speech of suspects. Using analytical tools from linguistic theory, this article explores how courts employ selective literalism. It further examines some of the consequences of this inconsistent use of interpretive devices, both practically and jurisprudentially.     

An Update on the New Federal Expert Discovery Rule: The Expert's Perspective

In December 2010, Federal Rule of Civil Procedure 26 (FRCP 26) was amended to protect certain communications between a litigating counsel and its experts from discovery. The rule protects communications and draft expert reports and lays out new disclosure requirements for the so-called “treating physician” expert. Attorneys and experts who first read the rule commonly agreed that the rule would make expert discovery more streamlined and cost-effective while preserving an opposing party's right to obtain facts and data that were considered by the expert in formulating its opinion. However, many commentators on the amended FRCP 26 warned practitioners not to fully embrace the literal meaning of the rule until it was field tested by litigating attorneys and the courts had the opportunity to interpret a number of loosely defined terms during the course of resolving federal discovery disputes. Now, almost a year after the rule's first official publication, several courts have interpreted the key terms that appear in the rule and have expressed their interpretations in written opinions. The judicial holdings of these cases cover different aspects of the rule, and it is still too early to determine how the majority of federal courts will ultimately interpret it. However, a review of current case law indicates that the courts have, thus far, taken a practical and literal view of the amended rule and have not expanded or limited its scope beyond what was generally believed to be the intent of the rule. As a result, practitioners are still hopeful that the rule will make working with an expert more efficient and less cumbersome, to the benefit of experts, attorneys, and ultimately their clients.     

The Effects of Changes to Legal Aid on Lawyers' Professional Identity and Behaviour in Summary Criminal Cases: A Case Study

This article explores the effects of changes to legally aided representation on criminal cases in magistrates' courts according to data collected in an area of south‐east England. I consider the political factors that motivated changes to legal aid and suggest how these issues affecting lawyers' understanding of their role, and how that understanding affects the relationships between defendants, lawyers, and the magistrates' courts. I argue that the research indicates a potential relation between solicitors' risk‐taking behaviour in obtaining funding and the reintroduction of means testing: remuneration rates affect the service that defendants receive and the reintroduction of means testing decreased efficiency in summary criminal courts. Ultimately, I argue that changes to legal aid funding have increased lawyers' uncertainty about their role, leaving them torn between acting efficiently and providing a good level of service.     

The myth of popular justice under communism: A comparative view of the USSR and Poland

This paper describes two ‘popular justice’ institutions which exist in both the USSR and Poland: people's assessors and social courts (workers' courts and residential tribunals). An attempt is made to assess these developments in light of the official national ideology. In addition, these institutions are placed within the context of contemporary Western debates on popular justice in order to test the applicability of Western ideas to the reality of Soviet-style communism. While the paper does not attempt to assess the adequacy of the critical Western voices which warn against the dangers or illusory advantages of community justice in Western democracies, it demonstrates that these ideas are indeed validated when tested within the communist reality. The social courts tend not only to reflect the authoritarian relations prevailing in the communist economy, but also serve to perpetuate them. The lay assessors who accompany judges in ordinary courts are extremely passive and their influence on the process and outcome of the adjudication seems to be minimal. Above all, they cannot influence the law itself or the legal structures in which they are participating.     

Lessons Learned from Developing a Trauma Consultation Protocol for Juvenile and Family Courts

Juvenile and family courts hold a unique position among the many stakeholders that comprise a healing community for persons experiencing adversity or trauma. Specifically, judges and other court leaders can promote the implementation of screening for trauma, the alignment of appropriate and effective treatment for trauma when indicated, and the accountability of systems for coordination and support of such services. To that end, the National Council of Juvenile and Family Court Judges undertook a field‐based project — consisting of multiple semi‐structured court surveys — to elucidate the key features of a trauma‐informed court and how to assist courts in becoming more trauma‐responsive for both consumers and staff. With the assistance of courts in 11 pilot sites across the nation, the project has led to the development of a protocol called trauma consultation or trauma audit, which is outlined here. Our work in developing the consultation protocol highlighted the need to better understand (1) the prevalence and impact of secondary traumatic stress in court staff, (2) the potential for environment to contribute to traumatic stress reactions, and (3) the importance of consistent trauma screenings and subsequent use of findings. Practical suggestions for courts to become more trauma‐informed are also provided.     

Empirical Limits for the Forensic Assessment of PTSD Litigants

This paper discusses the limits of expert opinion on posttraumatic stress disorder (PTSD) in personal injury claims. The construct of PTSD is hampered by several empirical limitations. Multiple reliable measures of PTSD exist, but have not been evaluated sufficiently within litigating samples and are infrequently used by forensic assessors. Common methods for trauma screening appear insensitive. Opinions about causation of PTSD and disability are complicated by retrospective memory biases, as well as the failure of most anxiety disorders to be detected within primary medical care. PTSD appears to have a steep spontaneous remission curve during the first year, but at least 10% of trauma-exposed people suffer chronic distress. Little is known about the course beyond 1 year. Efficacious psychological treatments have been developed for PTSD, but are not in common use limiting claimants access to rehabilitative treatments. Research on functional disability associated with PTSD is in its infancy, but it seems likely that PTSD will account for only a part of the variance in work disability. We provide suggestions for improving forensic practice, advising the courts about the limitations of forensic opinions, and necessary research.     

Domestic violence case processing: a matter of local legal culture

As one enters a courthouse, its culture is communicated to its listening visitors. The manner in which the security guards speak; the length of time victims are kept waiting; the amount of bail a defendant is assessed; communicate messages to those who are paying attention. Domestic violence cases have long suffered from lenient treatment and dismissals in our criminal courts. This paper examines a unique explanation for this problem: the court’s local legal culture. The elements of two courts’ local legal culture that most profoundly impacted their processing of domestic violence cases are examined. Over a six month period, 23 in depth interviews were conducted with court workgroup members in two courts, one with a specialized domestic violence session and one without. Court room observations were used to supplement these interviews. The results were insightful and telling about how a court’s culture can, at times, be more influential on case processing than the law itself.     

Picking up the Pieces: Cases Presented to the London Sheriffs' Courts between Michaelmas 1461 and Michaelmas 1462

Almost no records of proceedings in the medieval London sheriffs' courts are extant. I will demonstrate in this feasibility study of one shrieval year to what extent the reconstruction of the lost archives of the London sheriffs is possible and what can be learned from a systematic collection of all available evidence. By going beyond the Chancery corpus cum causa files our knowledge of cases heard in the sheriffs' courts is not only nearly doubled. We also get a more representative picture of proceedings. In addition, we are provided with detailed information about the sheriffs' courts and their personnel. Moreover, by following our litigants into other courts, we learn about their litigation tactics.