1. Resolving Ethics Dilemmas in Forensic Practice

Darby, William Connor; Weinstock, Robert

doi:10.7312/grif18330-002

“…This proliferation of use has brought with it interesting challenges involving the admission and probative utility of neuroscientific knowledge toward judicial decision making (Sinha, 2021). The “seductive allure” of such evidence also raises important ethics questions for forensic psychiatrists charged with maintaining objectivity (Choi, 2017; Denno, 2022), particularly considering recent advances in computer processing that may render neuroimaging evidence more visually persuasive toward triers of fact and thus potentially prejudicial (Darby, 2021). Importantly, Rule 403 of the Federal Rules of Evidence allows for the exclusion of evidence, even if relevant, if the danger for prejudicial impact exceeds its probative value (Avery, 2017).…”

Section: Discussionmentioning

confidence: 99%

The use of neurobiological evidence in sentencing mitigation

Khalid,

Lee,

Wall

2024

Behavioral Sci & The Law

2

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Neurobiological evidence has grown increasingly relevant in U.S. criminal proceedings, particularly during sentencing. Neuroimaging, such as functional Magnetic Resonance Imaging and Positron Emission Tomography scans, may be introduced by defense counsel to demonstrate brain abnormalities to argue for more lenient sentencing. This practice is common for penalty mitigation in cases eligible for capital punishment. This article reviews the history of the use of neuroscience in criminal cases from the early 20th Century to present, noting pertinent legal and ethical considerations for the use of such evidence. The authors review important empirical research conducted in recent years regarding the use of neurobiological evidence in legal proceedings (such as mock‐juror studies) and guidance from the federal sentencing guidelines and the American Bar Association. The discussion also notes relevant case law in which neuroimaging, behavioral genetics, or other neurobiological data were introduced in criminal proceedings, particularly precedent‐setting U.S. Supreme Court cases.

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“…Another model, dialectical principlism, was developed to assist psychiatrists in analyzing the complex dilemmas that occur when ethics duties conflict and compete with one another. This aspirational model incorporates ethics guidelines from medical and forensic organizations, ethics theories (such as principlism, casuistry, narrative, ethics of caring, and normative ethics), and other forensic ethics approaches (e.g., Appelbaum's principlism, Griffith's narrative, Candilis and Martinez's robust professionalism, and Norko's compassion) to help determine the most ethical action in situations in which there is no clear consensus on what the right action is (Darby et al, 2022).…”

Section: Ethics Framework As Applied To Reportingmentioning

confidence: 99%

“…Another model, dialectical principlism, was developed to assist psychiatrists in analyzing the complex dilemmas that occur when ethics duties conflict and compete with one another. This aspirational model incorporates ethics guidelines from medical and forensic organizations, ethics theories (such as principlism, casuistry, narrative, ethics of caring, and normative ethics), and other forensic ethics approaches (e.g., Appelbaum’s principlism, Griffith’s narrative, Candilis and Martinez’s robust professionalism, and Norko’s compassion) to help determine the most ethical action in situations in which there is no clear consensus on what the right action is (Darby et al., 2022). When using dialectical principlism, one identifies the relevant ethic duties and principles, prioritizes them based on role (i.e., ranks their importance in that situation relative to one another), and balances them (i.e., weighs the ethics considerations favoring one action against considerations opposing the action).…”

Section: Ethics Framework As Applied To Reportingmentioning

confidence: 99%

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

MacIntyre,

Sones,

Li

et al. 2024

Behavioral Sci & The Law

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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.

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“…However, ethical guidelines fall short of the type of specificity required for addressing what is meant by reasonable certainty. Darby and Weinstock (2018) highlighted the limitations of organizational ethical guidelines, citing conflicts between promoting legal justice and respect for the person inherent to forensic work. Organizational ethical guidelines, given their broad aspirational nature, do not offer definitions of terms such as reasonable degree of certainty.…”

Section: Historical Guidance Suggests High Thresholdmentioning

confidence: 99%

Defining reasonable degree of certainty in sexually violent predator evaluations.

Fox¹,

Sreenivasan²,

Weinberger³

et al. 2022

Professional Psychology: Research and Practice

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Sexually violent predator (SVP) hearings represent a unique set of postincarceration civil commitment proceedings, where expert psychological or psychiatric testimony plays a central role in the commitment determinations. Psychologists are often asked to offer their testimony to a recognized professional standard. Courts have a gate-keeping role to exclude unreliable expert testimony, and testifying experts must offer opinions that are relevant and reputable. That standard has been a “reasonable degree of certainty.” A review of SVP court cases over almost 25 years demonstrated that testifying experts recite the term but do not define the threshold. This lack of a standard definition has direct implications for determining the diagnoses that are key components in SVP hearings, as the data used by experts represent varying standards of proof. In order to standardize the term and because forensic psychologists are quite familiar with legal thresholds, the legal standards can provide sufficient guidance to define reasonable psychological certainty. The consequential nature of indefinite civil commitment calls for experts to move away from an undefined or vaguely defined threshold of probability to a defined probability. We argue that the threshold should be at the level of a clear and convincing standard.

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1. Resolving Ethics Dilemmas in Forensic Practice

Cited by 4 publications

References 0 publications

The use of neurobiological evidence in sentencing mitigation

The use of neurobiological evidence in sentencing mitigation

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

Defining reasonable degree of certainty in sexually violent predator evaluations.

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