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51 Cards in this Set
- Front
- Back
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Who decides admissibility of evidence?
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The judge
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Who decides if evidence has weight?
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The jury
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Definition of Prejudicial:
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Facts potentially causing strong emotional reactions
It is not admissible because of a negative halo effect coloring perception of all the evidence |
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Definition of Probative:
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The evidence is relevant because it has greater probability to affect a juror's ultimate decision than its absence.
It is alway admissible |
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If a plaintiff in personal injury case had a history of violent crime and he is claiming his injury caused him nothing more than headache pain, would his history be probative to his case? Could it be prejudicial to the jury?
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No
Yes It would be probative if he claims "dysexecutive and emotional dyscontrol syndrome due to frontal love damage." Prejudicial if the damages claim was only headaches. |
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If a plaintiff in a personal injury case had a history of violent crime and he is claiming his injury caused him to lose control of his emotions, would that history be probative? Would it be prejudicial?
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It could be both
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The three aspects of a tort to be examined in a lawsuit:
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Duty
Foreseeability Negligence Causation Damages |
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Under what circumstances are tort rights be suspended?
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When fault is not an issue
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What is the difference in the scope of application for a published opinion vs. an unpublished opinion?
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Published means a broad scope of application that is binding on trial judge in the future.
Unpublished typically mans a ruling that is limited to a particular case. |
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What is the difference between an ultimate question in a case and a penultimate question?
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Ultimate questions refer to those that can only be answered by the trier of fact "this car accident caused this plaintiff's brain damage"
Penultimate testimony refers to opinions just short of the ultimate questions "the plaintiff's scores are consistent with closed head injury" |
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Is there consensus that neuropsychologists should limit themselves to penultimate questions?
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No
There is considerable controversy in the forensic psychology literature as to whether psychologists allow themselves ultimate or penultimate testimony. Maybe in the case of malingering. |
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What are the similarities between clinical and forensic assessment?
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Both rely on:
The same measurement and scientific bases Neurocognitive constructs Differential diagnosis of generally accepted disorders |
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What observation is cited in the text as evidence that social context can influence expectancies, which then impact symptom report?
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The "stereotype threat" literature suggests negative expectations can lower test scores compared to groups given neutral invitations for examinations. "Diagnosis threat" can also activate behavioral and/or cognitive schema for acting out "illness" behavior.
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How might neuropsychological evidence be influenced by a context in which there is potential for financial compensation, by reading about symptoms on the internet or by attorney coaching (e.g., explaining how to look impaired on a test)?
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Persons pursuing litigation act differently than nonlitigating patient undergoing evaluations for the same underlying disease. Post-incident influences can create genuine appearing syndromes at the level of clinical history in persons without residual injury, or post-incident influences can distort the clinical picture in persons with genuine residual brain damage
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How does examinee behavior in a forensic case often differ from examinee behavior in a clinical case?
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- They take longer to return to work
- They take more medications and report more symptoms - They simulate psychopathology - They can be hypervigilant to cognitive errors |
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Does pathology of the peripheral nervous system (PNS) affect validity of test data in clinical evaluations, forensic evaluations or both?
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Both
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Does examinee motivation affect validity more often in clinical evaluations or forensic evaluations? What is the estimate of prevalence of decreased effort in disability claimants?
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Forensic evaluations
Prevalence is high 33-66% in one study and 60-80% in another |
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How can a neuropsychologist identify these two threats to validity?
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By reliance an extra-test medical data and symptom validity tests
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Who is expected to have a partisan perspective, a clinical or forensic neuropsychologist? Who is expected to be objective?
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Neuropsychologists should be objective
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What example is given in the text of a legal precedent that is now recognized as faulty, that was necessarily used as the basis for decisions until the Supreme Court struck it down?
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Separate-but-equal schools
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Evidentiary thresholds: Which two legal standards are mentioned in the text and what percentage of certainty is associated with each one?
What percentage of certainty is usually required in scientific circles? |
Civil cases - preponderance of the evidence requires facts having 51% of the evidence in its favor.
Criminal cases - "beyond a reasonable doubt" requires a 90% confidence level Scientific circles - 95-99% |
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T or F more often in clinical or forensic evals: It is recognized that disorders are often multi-factorial; the role of a specific factors does not always need to be identified.
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Clinical
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T or F more often in clinical or forensic evals: There is a need to identify if a specific factor explains an abnormality in a test score or subjective complaint.
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Forensic
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T or F more often in clinical or forensic evals: Only reasonable confidence is required.
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Both ?
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Competence to testify: Jenkins vs. US (1962) – What does this opinion state are the “two critical factors in respect to admissibility”? What does a trial judge examine to determine qualification of a psychologist to address these two factors?
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The actual experience of the witness and the probative value of his opinion
The psychologists qualifications through a context specific, fact intensive exploration of background, training, education, and knowledge. |
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Scope of testimony: Is there consensus among trial and appellate courts on issue of whether neuropsychologists can comment on general causation (physical state of the brain) or specific causation (car accident that resulted in injury)?
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No
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What is the basic principle under Frye to establish that expert evidence is admissible?
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The "general acceptance" standard
Only scientific principles or techniques achieving general acceptance within a specific scientific community developing the technique are admissible |
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Is this opinion the primary basis for establishing admissibility in most states today?
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No
*It was replaced by the Federal Rules of Evidence |
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What position paper by a professional organization is cited in the text as support for the admissibility of neuropsychological test data?
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The AAN (The American Academy of Neurology) report
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What are two sources of evidence that have been ruled inadmissible under Frye?
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Quantitative EEG
Brain single photon emission computed tomography (SPECT) |
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Federal Rules of Evidence (1975): who wrote them?
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Congress
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What is a fact witness? What is an example of testimony a fact witness would be allowed to make in court?
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One who conveys information gleaned through the senses only
ex. "I saw Jones shoot Smith in the head" "Smith looked really scared" |
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What is an expert witness? What is an example of testimony an expert is allowed to make in court? What bases of opinion does an expert draw on? Is hearsay allowed?
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One who offers an opinion about what evidence means.
"The gun-shot wound to Smith's brain damaged his ventro-medial frontal lobes and took away his ability to judge risk or make appropriate decisions." Yes |
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Landmark ruling: Daubert: According to this decision, what two criteria are used to establish admissibility of expert evidence? What five “indicia” are used to evaluate the evidence?
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Reliability and evidence
1. Falsifiability 2. Peer review 3. Known or potential error rate 4. General acceptance 5. Existence of a manual controlling use |
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Kumho decision: According to this opinion, does Daubert apply only to scientific ideas or to experiential and technical evidence too?
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To experiential and technical evidence too
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Joiner decision: According to this opinion, does Daubert apply only to scientific evidence or to the expert’s application to a case as well?
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Only applies to scientific evidence
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Empirical impact of Daubert: Was admission of expert evidence more common after Daubert.
Compared to before the ruling, how often do court opinions reference the 5 indicia? What other standards for admissibility appear to be most influential? |
No
Rarely FRE, and pre-Daubert guidelines (Frye and general acceptance) |
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Third Party Observers: Are observers for physical exams allowed by the court? What does research shows about the effects of observation on test performance?
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Yes
It negatively affects performance - negative impact on attention and speed measures, decrements on skilled tasks (even when observers were plaintiff-friendly) |
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Administrative law: What is an example of an administrative law hearing? What degree of certainty of opinions is required in these settings? Is this standard higher or lower than that required in criminal matters?
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Worker's compensation
Equivalent or lower than "preponderance of evidence" Lower than in criminal matters |
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Civil court: What are examples of cases that are heard by a civil court? What degree of certainty of opinions is required in these settings?
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Claims of psychological and cognitive damages stemming from motor vehicle accidents, toxic exposure, or medical malpractice.
"Preponderance of the evidence |
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Probate proceedings: What questions are typically decided in probate court?
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Was there a neurological injury to begin with
Did it result in cognitive or emotional deficits |
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What are examples of roles neuropsychologists play in probate cases?
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Capacity for medical consent
Mental state of a will's creator Capacity to manage financial affairs |
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What is “testamentary competence”? Does the court use very high or very low standards to establish that someone has this form of competence? What questions are examined to establish it?
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- The validity of a will as it relates to minimum cognitive capacity or a will's creation. Most definitions of TC make some reference to mental ability
- The burden for proving lack of capacity is high - does a will exist, memory and comprehension of personal assets, knowledge of potential heirs, and anticipation of the will's effect on others - or NP terms: recent and long-term memory, object recognition and long term-memory, facial recognition and long-term memory, executive-cognitive capacity |
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Criminal: Does these courts have a high or low standard of certainty for opinions in order for them to be admissible in these cases? Why?
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- High standard and stages are highly formalized. The burden of proof lies with the prosecution and they must meet the familiar standard of "beyond a reasonable doubt" or 90% confidence that evidence shows guilt
- Because of strong liberty interests at stake (loss of life, freedom, or property) |
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What are some examples of questions a neuropsychologist may be asked about the cognitive capacity of a defendant?
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Is there the mental capacity to commit a crime and foresee its consequences
Do they know the meaning of the criminal act itself |
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A neuropsychologist may be asked if a criminal defendant had mental capacity to form ___________.
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Intent
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M’Naghten (1843): According to this decision, what is the legal definition of “insanity”?
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Laboring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act she/he was doing, or if she/he did know it, that she/he did not know she/he was doing what was wrong
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What is the only mental condition that meets this standard according to a narrow definition?
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Mental retardation
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According to a broader definition, what other defects can meet this standard to establish insanity?
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A serious defect in any one of other cognitive systems, including poor executive-cognitive skills (unable to foresee the immediate outcome) and visual perception (did not know they had a weapon)
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Durham (1954): Defendant is not guilty by reason of insanity if the criminal act is a ___________________.
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Product of a mental illness
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American Law Institute (ALI, 1962): Defendant is not guilty if conduct is the result of mental disease or defect, if he lacks substantial capacity to _____________________or to ___________. What diagnosis is specifically excluded as a mental disease according to this standard?
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appreciate the criminality [wrongfulness] of her/his conduct or to conform his conduct to the requirements of the law.
Antisocial personality disorder |
