Working With Experts: How and When to Bring Mental Health

Professionals onto the Team & Protocols for Referral Questions and

Other Communications

Danalynn Recer

Gulf Region Advocacy Center

www.gracelaw.org

“Mental Health”: Broaden Our Understanding

• Not just mental illness,

• Not just established facts.

• Not necessarily a diagnosis,

• Not just mood & emotional disturbances

• Not just psychiatric/psychological illness

• Dynamic narrative of functional status.

• Questions that must be asked and answered.

• Development over time with a plot.

• Includes cognitive functioning, verbal processing, memory

• Relationship of Neurologic/Biologic Status with perception, behavior, presentation

Issues

• Legal Questions: • Competency to stand trial; Sanity; Voluntariness of

statements; waivers; mens rea for crime; Mental Retardation; Mitigation; prison adaptation; competency to be executed.

• Relationships• Between the team and the client & client’s family• Between the client and family, jailers, prisoners, etc.

• Science of Mental Health

Issues

• Behavior• Of the client in the jail, in the courtroom• Client & family’s cooperation with investigation• Client & family’s reception of the plea• Of the team with the client, family & toward client

in the courtroom

Core Defense Team MUST Drive the Bus:

• Delegation without Abdication

• No one-stop shopping

• Experts cannot run the show

• Attorneys and Mitigators working collectively MUST:• Select appropriate experts;

• control testing and evaluations;

• Write careful referral questions;

• control access to information.

Core Defense Team MUST Learn and Discuss:

• Appropriate Evaluation and Testing Standards

• Dangers and Benefits of Diagnosis

• Dangers and Benefits of Different Areas of expertise.

• Accept that Client’s “mask”

• Recognize signs and symptoms (but don’t diagnose!)

The Right Time to Hire Experts

• The Methodology of Medicine vs. Law

• Consulting vs Evaluating vs Testifying

• Too Soon vs Too Late– What information will Change?

www.gracelaw.org

Hiring the Right Experts

• Field & Qualifications

• Specialization

• Clinical vs. Forensic

• Culturally Appropriatewww.gracelaw.org

Written referral question

• What are the social, psychological, developmental, familial, cultural, religious and environmental factors that played/play a role in shaping our client’s development and functioning?

• How did/do each of these factors shape our client’s social and psychological development and functioning?

www.gracelaw.org

Giving Experts Access to Information

• Filter and Control ALL Data Going to Testifying Witnesses– Subjective information; exercise of discretion– Review all data in expert’s file

• Interim Memos Seeking Guidance– “Not to be relied upon for expert opinion”

• Sanitized Social History• YOU write reports (if necessary)

www.gracelaw.org

Giving Experts Access to Witnesses

• Carefully Vetted Witnesses

• Anticipate and Deal with Problems– Inoculate witness, limit to what they really

know– Collateral evidence to refresh witness’

memory before expert visits

• But, Don’t Sandbag Your Own Witness– What will state have access to?

www.gracelaw.org

Essential ActivitiesEssential Activities

detailed social historydetailed social history chronology of life events -chronology of life events -

especially school historyespecially school history summary of key datasummary of key data respondent identification respondent identification

and availabilityand availability

What must be done -- IMHOWhat must be done -- IMHO Have to be able to move folks Have to be able to move folks away away

from the from the stereotypesstereotypes.. Have to be able to Have to be able to educateeducate folks folks

about “mild” mental retardation. about “mild” mental retardation. Have to find more powerful ways to Have to find more powerful ways to conveyconvey

this information.this information. Have to be able to Have to be able to summarizesummarize the the MR MR

prongs with clear, visually-prongs with clear, visually- oriented oriented arguments. arguments.