The Economic, Political, Strategic, and Rhetorical Uses of Simple Constructive Dilemma in Legal Argument

The author argues that simple constructive dilemma is a valuable argument form for reasoning under relative conditions of uncertainty. When applied to legal argument this value of simple constructive dilemma is shown in its political, strategic, rhetorical, and especially economic, uses by lawyers and judges. After considering some examples of the use of the form by trial lawyers, the author gives examples of the more interesting use of the form by appellate courts. Research into the use of simple constructive dilemma by appellate courts helps us to understand how those courts distribute judicial resources. It also helps us to understand the political role of the appellate courts with respect to the doctrine of the separation of powers. Given some of the specific examples of legal reasoning used by the appellate courts presented in this article, and given the discussion of the doctrine of precedent, the article’s focus is on common law legal systems of the Anglo-American-type.     

Integrating the criminal justice system into mental health service delivery: the worcester diversion experience

The substantial number of persons with mental illness encountered in many sectors of the criminal justice system has spurred actors from various agencies within that system to take actions aimed at reducing the growth of this population. These actions have included the development of specialty police units, jail diversion programs, and other mechanisms for channeling persons with mental illness out of the criminal justice system and into mental health treatment. The courts, too, have become involved in this effort with the recent development of the "mental health court," the latest of the "specialty" or "problem solving courts." These courts have not been without their critics, however, nor are they the only feasible approach to court-based diversion. This paper identifies and explores a range of options for structuring the relationship between criminal courts and local mental health systems. Beginning with a discussion of the rationale motivating the development of mental health courts, two alternatives to this specialty court model are discussed. One involves judges dealing with defendants having mental illness and substance abuse on a case-by-case basis. The other takes advantages of linkages that may already exist between most courts and the mental health providers who conduct their forensic assessments, expanding the role of these providers to serve as boundary spanners between courts and the components of local mental health systems. Regardless of the model adopted, however, appropriate linkages must exist between the courts and relevant providers. A case study is provided that demonstrates how the status of a locale's linkages can be evaluated and how the information derived from such evaluation can be used to improve the linkages between police, courts, and health and human services agencies.     

A socio-emotional relational framework for infidelity: the relational justice approach

Current clinical models for addressing infidelity tend not to make social context issues a central focus; yet, societal gender and power structures, such as female responsibility for relationships and limited male vulnerability, affect the etiology of affairs and create power imbalances in intimate relationships. How therapists respond to these societal influences may either limit or enhance the mutual healing of both persons in the relationship. Thus attention to these societal processes is an ethical issue. This paper presents one perspective, the Relational Justice Approach, for working with infidelity. It places gender, power, and culture at the center of intervention in couple therapy, and includes three stages: (1) creating an equitable foundation for healing, (2) placing the infidelity in a societal context, and (3) practicing mutuality. Each stage is illustrated with case examples and contrasted with current practice regarding infidelity.     

Empathy or objectivity: The forensic examiner's dilemma?

Examiners are ethically bound to manage personal biases that may infect their expert opinions. Empathy‐related issues that lead to bias in forensic assessment of adjudicative competence arise in evaluation interactions with defendants (therapeutic empathy) and from examiners' personal views of issues that these assessments address (empathy‐bias). This article first summarizes flexible adjudicative competence legal standards that invite bias by forensic experts. Then, after reviewing the therapeutic empathy issue, the article examines empathy‐bias and its effects on the development of expert opinions. The authors assert that, properly managed, the often assumed dilemma between empathy and objectivity is a false one. Using case law, research psychology, and professional guidelines, the authors first emphasize that examiners must actively generate plausible alternative explanations of evaluation data as they form their opinions, not afterwards. Then the authors present a practical model to help experts develop opinions that best explain the data while minimizing empathy‐bias. Copyright © 2010 John Wiley & Sons, Ltd.     

Representation by counsel: Right or obligation?

Since the Supreme Court's decision in Faretta v. California (1975), courts have generally permitted defendants to represent themselves, as long as they are competent to do so. The problem lies in the definition of competency to waive counsel, which has been vaguely defined by the courts. Little is known about the frequency of, or reasons for, attempts to waive counsel, about the process of forensic evaluation of such competency, and about the success of such attempts. The authors briefly review the case law on competency to waive representation, report on a longitudinal prospective study of these issues in a population of defendants referred to an inpatient forensic facility for evaluation of all types of competency related to their criminal prosecutions, and discuss the significance of the issue for forensic clinicians. A key question for courts, lawyers, and clinicians is whether a competency evaluation can be invoked to overcome a defendant's constitutional rights to self-representation and bail.     

Ethical issues in personality assessment in forensic psychology.

In this article we address several ethical issues of concern for psychologists who are engaged in personality assessment in forensic settings such as for courts or attorneys. The ethical issues reviewed include the role of the psychologist as an expert witness, matters of competence, informed consent, confidentiality, multiple relationships, and special issues related to billing. Emphasis is placed on how psychologists can provide useful information to the courts in a manner consistent with the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct, the Committee on Ethical Guidelines for Forensic Psychologist's Specialty Guidelines for Forensic Psychologists, and the APA's Guidelines for Child Custody Evaluations in Divorce Proceedings. The practical recommendations made in this article are consistent with the APA's Ethical Principles of Psychologists and Code of Conduct.     

The Political Philosophy of Intersubjectivity and the Logic of Discourse

This paper is concerned with the competing and complimentary relationships between intersubjectivity and discursive logic. It contends that the ultimate failure of Husserlian phenomenology is a testament to the dilemma of subjectivist philosophy. Indeed, political philosophy requires a paradigm-shift from subjectivity to intersubjectivity. With this in mind, this paper examines the classical encounter between morality and ethical life in connection with discursive ethics. While it argues that Habermas still retains a strong residue of subjectivist philosophy, it attempts to clarify the discursive analysis of Foucault and probes into its applicability to practical philosophy.     

Deaf murderers: clinical and forensic issues

Data are reported on 28 deaf individuals who were convicted, pled guilty, or have been charged and awaiting trial for murder. The unique forensic issues raised by these cases are discussed, and their clinical picture presented. A significant percentage of these deaf murderers and defendants had such severely limited communication skills in both English and American Sign Language that they lacked the linguistic ability to understand the charges against them and/or to participate in their own defense. As such, they were incompetent to stand trial, due not to mental illness or mental retardation, but to linguistic deficits. This form of incompetence poses a dilemma to the courts that remains unresolved. This same linguistic disability makes it impossible for some deaf suspects to be administered Miranda Warnings in a way comprehensible to them. This paper identifies the reasons for the communication problems many deaf persons face in court and offers remedial steps to help assure fair trials and police interrogations for deaf defendants. The roles and responsibilities of psychiatric and psychological experts in these cases are discussed. Data are provided on the etiology of the 28 individuals' hearing losses, psychiatric/psychological histories, IQs, communication characteristics, educational levels, and victim characteristics.     

From posts to protection: Ethical considerations regarding forensic psychiatrists and a duty to warn based on social media

Increasing use of social media in forensic mental health evaluations will lead to new challenges that must be resolved by forensic practitioners and the legal system. One such dilemma is the discovery of information that would typically trigger a legal duty and professional ethics obligation for mental health professionals to breach doctor-patient confidentiality to promote public safety and prevent harm to vulnerable third parties. Although the law and professional organizations offer clear guidance for practitioners in the treatment role, there is currently no clarity from the law or instruction from professional organizations on what mental health professionals should do if they discover such information during a confidential forensic evaluation. For example, a forensic evaluator may find evidence on social media of an evaluee’s threats to seriously harm others, abuse of children and the elderly, or severely impaired driving. There are no clear guidelines for how a forensic psychiatrist should respond in these complicated situations. We review the legal concepts and historical evolution of confidentiality, privilege, and mandated reporter duties that forensic practitioners should consider in these legally ambiguous situations. Finally, we discuss ethics frameworks practitioners can implement to determine their most ethical course of action when faced with such dilemmas.     

The utility of psychological testing in assessing emotional damages in personal injury litigation

Psychological testing and assessment instruments frequently play a small but important role when psychologists assist the courts as emotional damage experts in personal injury matters. However, examiners frequently, if sometimes inadvertently, mislead the court with test interpretations that are based on clinical rather than forensic populations and that fail to appreciate the lack of robustness of clinical measures in this forensic context. Whereas published computerized interpretations repeatedly remind experts that personality test results should only be used as a method to generate hypotheses about the examinee that are to be subjected to further investigation and consideration, experts all too often inform the courts of test interpretations as if the test results were measures of clinical constructs rather than plaintiffs' self-reports of symptoms.     

生命伦理学:权力与不公正--在第六届国际生命伦理学大会的致辞

在现代生命伦理学的讨论中,主要关注的是改造医患关系中的权力关系。通过强调人权和对个人尊严的尊重,对脆弱人群授予权利已经达到。然而,在卫生保健中,权力的不平衡依然普遍存在。这在相当程度上与对社会不公正的关注不够有关。那种权力的不平衡加之新的权力形式的发展,例如,通过新的遗传生物技术,产生了对日益增长的社会不公的恐惧与忧虑。由此,扩展与公共卫生有关的伦理学讨论将受到关注。政治哲学研究也需要变为改造国际权力关系和改善人口健康。     

Gef?hrliche N?he

The author examines the association between trauma and psychosis. To illustrate this he presents clinical examples of active and passive experiences of violence by adult psychotic patients, for whom forerunners in the form of childhood experiences of violence were found in some psychoanalytical treatments. They take place in traumatic relationships. Recent empirical studies have shown that trauma plays an influential role in the pathogenesis of schizophrenia. Traumatic relationships have a contradictory structure which possesses an impressive similarity to the schizophrenic dilemma of adult psychotics. The author therefore considers the schizophrenic dilemma as an introspective manifestation of a traumatic relationship, a part of the violent nature of psychiatric institutions as re-enactment of the traumatic relationship.     

Power Differentials in Relationships

Abstract

The issue of sharing power affects many relationships. Many couple theorists and therapists believe that most marital distress is the result of power imbalances between the partners yet the influence of perceived power differentials in relationships is largely ignored in the therapy journals. The focus of this paper is on power differentials in couples. Different types of power are explored and assessment issues are examined. Therapeutic considerations are then presented and illustrated by case material. These issues are explored against a backdrop of gender sensitivity.     

Videoconferencing and forensic mental health in Australia

Videoconferencing is in common use in Australian forensic mental health services. It provides opportunities to link remote prisons, courts, and psychiatric clinics with distant specialist services, and enables a range of activities including assessment, treatment and feedback, expert testimony, education, and inter-service planning. These functions are acceptable to patients and clinicians, and in Australia videoconferencing minimizes disruption to small services and their patients, who might otherwise face lengthy journeys. In particular, marginalized patient groups, including indigenous people and prisoners, may receive better services. The evidence base supports use of videoconferencing despite a number of practical, legal, and clinical issues that may reduce its effectiveness compared with face-to-face assessments. Videoconferencing technologies are critical to effective forensic mental health services in Australia.     

Standardisierte Dokumentation als Methode der Qualit?tssicherung

Quality assurance is one of the recurrent topics in forensic psychiatry and the first methods used were systematic documentation and the development of structured assessment and documentation instruments. In German speaking countries the forensic psychiatric documentation system (FPDS) was derived essentially from the AMDP (working group for methods and documentation in psychiatry) system used in clinical psychiatry and consisted of a modular instrument with a basic module and additional ones for the assessment of violent offenders or of sex offenders for risk assessment etc. The development of comparable instruments became especially popular for risk assessment in different settings and for different offender populations. Even more important was that it initiated a platform for scientific exchange, producing a reliable data base, structured training in forensic psychiatry and evaluation of expert reports. Systematic documentation using instruments was often criticized for reducing information and overlooking the complexity of the problems encountered in forensic psychiatry. The critics, however, often do not seem to be aware of the real quality of forensic assessments and reports, of the variety or of the minimal information they often contain. Systematic documentation serves to find a common language among the experts and the courts to improve the assessment of reliability and validity of the information provided, to establish minimal requirements for the formulation of reports and to prove professionally correct handling of cases in litigation against an expert.     

Forensic evaluations in immigration cases: Evolving issues

To date little attention has been paid to forensic mental health assessments in immigration cases. This article briefly reviews the law relevant to assessments in these cases, and then examines some of the individual, family, community and cultural issues that impact upon forensic evaluations in immigration cases.     

The forensic confirmation bias: Problems,perspectives, and proposed solutions

As illustrated by the mistaken, high-profile fingerprint identification of Brandon Mayfield in the Madrid Bomber case, and consistent with a recent critique by the National Academy of Sciences (2009), it is clear that the forensic sciences are subject to contextual bias and fraught with error. In this article, we describe classic psychological research on primacy, expectancy effects, and observer effects, all of which indicate that context can taint people's perceptions, judgments, and behaviors. Then we describe recent studies indicating that confessions and other types of information can set into motion forensic confirmation biases that corrupt lay witness perceptions and memories as well as the judgments of experts in various domains of forensic science. Finally, we propose best practices that would reduce bias in the forensic laboratory as well as its influence in the courts.     

权力感对道德困境判断的影响：基于CNI模型的分析

采用道德困境判断的CNI（consequence, norm, inaction）模型,通过两个实验考察权力感对道德困境判断的影响。实验1探讨个人权力感对道德困境判断的影响,结果显示高个人权力感显著增加被试对规则的敏感,促使个体做出道义论的道德判断。实验2考察回忆任务启动的权力感对道德困境判断的影响,发现相对于低权力感启动的被试,高权力感启动的被试在进行判断时更关注行为的结果,对规则更不敏感,这说明启动的权力感促进功利主义的道德判断,抑制道义论的道德判断。结果表明,不同类型的权力感对道德困境判断的影响存在差异。     

Co-constructing a cross-cultural course: resisting and replicating colonizing practices

This article examines the cross-cultural complexities of teaching and learning processes at different levels in a family therapy training program delivered in a different country. It presents two interlinked narratives of an advanced family therapy training program delivered in Slovenia by a U.K-based family therapy training institute. The context in which the training was negotiated and planned is discussed, highlighting issues at the macrosystemic level. Dilemmas that arose in relation to differing beliefs about teaching and learning are elaborated. We examine power relationships, ways that we positioned ourselves and each other, and how we tried and sometimes failed to take these into account. We question how the issue of spoken language and its meanings creates its own constraints and power structures, and how we respond to the impossibilities of translation. We argue that it is through the examination of uncomfortable processes that we develop self-reflexivity and work toward more equitable relationships.