Witnesses Playing God

[A] good-faith, case-by-case, consequential ethics approach should be used that balances the greatest good for the greatest number without trampling unduly on individual rights and each citizen’s constitutionally protected liberty interests.

Sreenivasan, Frances, and Weinberger, Normative Versus Consequential Ethics in Sexually Violent Predator Laws: An Ethics Conundrum for Psychiatry, J Am Acad Psychiatry Law 38:3:386-391 (2010) (via Karen Franklin, In the News: Forensic Psychology, Criminology, and Psychology-Law; via Pam Lakatos)

In Texas, the question that a psychologist might be asked to answer in a Sexually Violent Predator committment proceeding is whether, to a reasonable scientific certainty, the respondent “suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence,” where “‘Behavioral abnormality’ means a congenital or acquired condition that, by affecting a person’s emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person.

There are three possible answers a psychologist could give to this question: “yes,” “no,” or “I don’t know.” (The third, because psychology may not be prepared to determine whether a person is a menace to the health and safety of another person.)

A psychologist may think that an SVP statute casts too fine a net, capturing people who should not be committed. Or she may think that it casts too coarse a net, letting people who should be committed go free. While the first case would provide a reason for an ethical psychologist not to testify on behalf of the State, neither case should affect the psychologist’s answer if she takes the stand.

A witness’s testimony should never be results-oriented. Witnesses are called to tell the truth, not to get particular results. There is little more satisfying to a trial lawyer than showing a jury that a witness is shading his testimony even slightly to affect the outcome of the case. The consequentialist approach that Sreenivasan and her colleagues would adopt would have psychologists altering their testimony based on their perception of the greatest good for the greatest number (as well as their idea of how much trampling on individual rights is due).

They recognize that there is something wrong with this idea; they write:

Critics of this approach would argue that the reasoning of the clinician drives the goodness of the outcome. Moreover, an individual with flawed reasoning, such as one who cannot accurately assess the situation or does not make an effort to gather all data, would not be able to determine the best action. Therefore, adopting a consequential ethics position may also include the moral imperative that mental health professionals have a full understanding of the potential negative consequences of their opinions. The better informed clinicians are, the more likely that consequences will be favorable.

That’s all true; I marvel at the notion that a psychologist might even imagine that she would have enough data to know what the “greatest good for the greatest number” was or how much rights-trampling was due. (Maybe they really are all crazy.)

Here’s a criminal-defense lawyer’s further critique: balancing the greatest good for the greatest number is not your job.

Sreenivasan and company write:

The task for the SVP/SDP evaluator is to find a solution to the seemingly intractable conflict between the clashing normative values of public safety and of civil rights.

No, it really isn’t. If the statute is too narrow, lobby the legislature to change it; if it’s too broad, don’t participate in the proceedings. Let the lawyers fight over how much trampling on constitutionally protected liberty interests is justified.

You are just a witness. I know it’s tempting, but please: Don’t play God.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to Witnesses Playing God

  1. Ric Moore says:

    Good luck there. Civil rights are being tromped on AFTER the conviction and incarceration is done. That is the part that irks me. Here is Virginia, noted in the Governor’s latest press release, they are on a roll to uncover the sex-offenders from other countries now living here.
    “Over the last five days, more than 60 law enforcement officers from ICE, Virginia State Police, Bedford County Sheriff’s Office and Roanoke City Police Department participated in Operation SOAR (Sexual Offender Alien Removal), a targeted enforcement operation to identify people convicted of sex offenses in the Commonwealth and D.C. to determine if they are subject to removal from the United States. The 15 aliens arrested during Operation SOAR had convictions for sexual offenses including sexual battery of child, aggravated sexual battery and carnal knowledge of a child (13-14 years old)”

    15!! I have a suspicion that some of those have child brides, who immigrated here, and found themselves in big time trouble. I lived in Texas for about 10 years and saw plenty of that. It’s election time, so no matter the cost to the taxpayer. Do I think that illegals should be committing sex crimes? Heck no. But, it doesn’t look like we’re getting to know the stories behind the scenes and that someone is going to have to defend these people.

    How this will play out will be a reflection on us. Do they have rights, being non-citizens, at all?? Can there be mitigating circumstances? If there were, due to all of this press and politics, would they become “presented at bar”? Can they get a fair trial? And, how would a shrink evaluate their condition when they come from a background that marriage to a 14 year old is common? This is a whole can of worms. OTOH, these people may be just dangerous predators, and need to be locked up. Then the task force did a good thing. I don’t know one way or the other here. But, I would like to know.

    .

    • Glenn_G says:

      While I honestly have issues with ‘Child Bride’ marriages your inquiry does bring up points that all RSO in most states are grappling to deal with every day.

      You asked a question in your final paragraph. ..”Do they have rights,..” You referred to undocumented individuals but the same needs to be stated for the entire RSO community. Currently, through legislation of guilt in the 50 states, their is no true restoration of rights for any of the RSO population. We are all treated as if we are still on paper daily. 5 years now I have completed my probationary period. I am 12 years past my crime, and had not broken any probationary requirements nor any further law since. Yet I have 4 yearly visits by the LEO to my home, and I get to have a free photo every year on my birthday, AND get a 20 dollar renewal of my license yearly.

      Congress or state legislature attempts to pass one law a year that hinders our Constitutionally promised rights, usually they pass 2. Just htis last session, Congress added two clauses so that the RSO population cannot apply for unemployment, nor could they gain a small business loan. What does this have to do with our past crime? How is this ‘remedial’ and not punishment?

      So to answer your question from the perspective of a US citizen, no, we do not have rights. We are only citizens when tax time comes around.

    • Glenn_G says:

      While I honestly have issues with ‘Child Bride’ marriages your inquiry does bring up points that all RSO in most states are grappling to deal with every day.

      You asked a question in your final paragraph. ..”Do they have rights,..” You referred to undocumented individuals but the same needs to be stated for the entire RSO community. Currently, through legislation of guilt in the 50 states, their is no true restoration of rights for any of the RSO population. We are all treated as if we are still on paper daily. 5 years now I have completed my probationary period. I am 12 years past my crime, and had not broken any probationary requirements nor any further law since. Yet I have 4 yearly visits by the LEO to my home, and I get to have a free photo every year on my birthday, AND get a 20 dollar renewal of my license yearly.

      Congress or state legislature attempts to pass one law a year that hinders our Constitutionally promised rights, usually they pass 2. Just this last session, Congress added two clauses so that the RSO population cannot apply for unemployment, nor could they gain a small business loan. What does this have to do with our past crime? How is this ‘remedial’ and not punishment?

      So to answer your question from the perspective of a US citizen, no, we do not have rights. We are only citizens when tax time comes around.

  2. Pam Lakatos says:

    After reading this blog, I gave in to my trashy side and read Perez Hilton’s trash gossip blog-I know, I deserve to die-where I discovered that one of Tiger Wood’s indiscretions has announced that she will now leave her profession (some would call it prostitution) and become a forensic psychologist.
    Same tune, second verse.

  3. Jeff Gamso says:

    Some years ago a bill was introduced in the New Mexico legislature requiring any psychologist (possibly psychiatrists, too, I don’t have the news story handy) who testified to do so wearing a tall, pointed hat with stars and crescents on it and waving a wand in the air.

    I’m not exactly sure how that’s relevant, but I’m certain it is.

  4. Ernie Menard says:

    Well, it is nice that the psychologist at least recognizes that guesses presented as diagnosises can have the effect of dimishing a person’s exercise of their civil rights. Few would disagree that certain behaviors at the extreme ends of the Bell curve of human behavior are diagnosable and are somewhat useful as a predictor of future general behavior. Other than that, I’d agree that psychological predictions concerning discrete acts of any person wherever they fall on the Bell curve of human behavior are no more useful than a Quija board.

    Maybe they really are all crazy? The way I see it, it’s more foolishness [hubris, perhaps] than anything else. Take a basic human psychological profile derived from the center of the Bell curve of human behavior and then realize there are about 6 billion ways the profiles on any particular individual could differ.

    • The Sreenivasan et al “consequential ethics” paper is, so far, the most blatant admission that state-appointed SVP evaluators not only have bent over a number of ways to accomodate a finding of “SVP” in the commitment trials but they have known what they are doing. Sreenivasan et al have immeasurabley assisted the defense by describing what many have known for a long time: the state-appointed evaluators have been “implementing the will of the people” and not confining themselves to “expert” witness testimony.

  5. Lee Stonum says:

    I’d support that bill. Even when they’re testifying for me, I’m often acutely where that they’re probably making it up as they go along.

  6. Jeff Gamso says:

    Found it. Here’s the text of the story (and no, I can’t vouch for it being true).

    In the New Mexico Legislature’s 1995 session, Sen. Duncan Scott, a Republican from Albuquerque, proposed an amendment to a psychologist regulatory bill offered by another
    senator. The Scott amendment would have dramatically changed the face of New Mexico’s legal system: The amendment said: “When a psychologist or psychiatrist testifies during a defendant’s competency hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.
    “Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant’s competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.” The bill, with the wizard amendment, passed the Senate by voice vote and cleared the House 46-14.
    Unfortunately, Gov. Gary Johnson vetoed the legislation.

  7. Lee Stonum says:

    I have tears in my eyes right now. WHAT IF he had signed that bill? I would move directly to New Mexico and quit my job and do nothing but attend competency hearings.

  8. Jeff Gamso says:

    There’s a reason I’ve saved that story for 15 years.

  9. Glenn_G says:

    The most upsetting part of this is, the three answer system. Anything that cannot be answered with a yes or no has to be suspect of fudgery.

    is it light outside (y or n)
    did it rain (y or n)

    these two examples show how something is yes or no, something tangible. but when dealing with the human mind, no amount of incense, reading the tea leaves, or consulting Mistress Laura so going to give you proof of either yes or no. Therefore it isn’t science.

    You are putting a person on the stand that has the ability of sending someone to a dark cave forever if they want. Maybe a grand-daughter is a victim of a crime that the accused is possibly guilty of. Maybe an old friend is. Either way, it allows that non-scientific element in there.

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