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Melton Chapter 4: Legal Contours of Evaluation (5th Amendment / Protection…
Melton Chapter 4: Legal Contours of Evaluation
5th Amendment / Protection against Self-Incrimination
Competency To Stand Trial
Defendant reveals information during a CST eval
Statutory protections against CST data in determining guilt
Generally there is no denial to participate in a court-ordered evaluation
Estelle v. Smith, Dr. Death
Buchanon v. Kentucky
Buchanon differed from estelle because the defense raised the psychiatric question
Parental Fitness Evaluations?
Juvenile Proccedings
In re Gault
5th amendment holds in juvenile proceedings as well
Commitment Proceedings
Reasoning: commitment proceedings are not criminal so not the same level of 5th amendment concerns
Allen v. Illinois
Sex Offender civil commitment proceeding
MST evaluations
Bifurcated process (establish guilt and then proceed to sanity)
Different from CST because defense raises the issue
If defendant doesn't participate can't use expert
Report remains protected until defense formally raises the question
Sentencing and Prison evaluation
6th Amendment
Right to counsel & right to EFFECTIVE counsel
Ake v. Oklahoma
entitled to 1 state evaluation
Generally, counsel is not present during the actual evaluation
What about videotaping
Have another expert observe the evaluation
Supreme Court has found defendant has right to counsel not just at trial but at critical stages as well (eyewitness line up, etc)
Duties of the Evaluator
Liability for Breach of confidentiality
less likely in a forensic evaluation
Duty to protect the public
"Dangerousness"
Tarasoff
threats to a group are usually too amorphous
child abuse/neglect
Prior crimes less so when retained by defense, including child abuse
Informed consent Doctrine
Negligent Diagnosis
less an issue in forensic
Can likely be mitigated against by staying close to traditional diagnoses and explain the limits of the data
Generally, not an issue unless the diagnosis resulted in a poor/unncessay/dangerous treatment
HIPPA & Forensic Evaluations
Ethical Considerations in the Evaluation Process
Competence
Board Certification
Note the limits of the science
Clarifying referrals
Consultant vs. evaluation
Never evaluate if counsel has not been retained
Fee Structure
Prior relationship
Basic elements of notification
name of evaluator
Legal issues addressed
Kinds of information most likely to be released
Kinds of information disclosed