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VOLUME 18 • NUMBER 1 • Spring 2009

The Official Peer-Reviewed Journal of The American College of Forensic Examiners

The American College of Forensic Examiners International (ACFEI) does not endorse, guarantee, or warrant the credentials, work, or opinions of any individual member. Membership in ACFEI does not constitute the grant of a license or other licensing authority by or on behalf of the organization as to a member’s qualifications, abilities, or expertise. The publications and activities of ACFEI are solely for informative and educational purposes with respect to its members. The opinions and views expressed by the authors, publishers, or presenters are their sole and separate views and opinions and do not necessarily reflect those of ACFEI, nor does ACFEI adopt such opinions or views as its own. The American College of Forensic Examiners International disclaims and does not assume any responsibility or liability with respect to the opinions, views, and factual statements of such authors, publishers, or presenters, nor with respect to any actions, qualifications, or representations of its members or subscriber’s efforts in connection with the application or use of any information, suggestions, or recommendations made by ACFEI or any of its boards, committees, publications, resources, or activities thereof.

Feature Articles

Changing Rx Practices in the Treatment of Mental Illness: Impact on Forensic Evidence By Sherwood Cole, PhD, FACFEI, DABPS

22 14

Emotional Needs of Law Enforcement Personnel: Control Group Comparison Using the Contextual Needs Assessment By Stuart Swenson, EdD, Timothy Brown, EdD, and David Plebanski, PhD

Size Doesn’t Matter: A Case Analysis of the Relationship Between the Number of Employees and Risk of Fraud in an Organization By Lisanne Graham-Scott, CPA, RFC

Parenting Capacity Assessments in Child Protection Cases

By Peter W. Choate, MSW, RSW, DABFE, DABFSW, DAPA, MTAPA

Forensic Mental Health and Technology: Risk Management Strategies for the Practitioner By DeeAnna Merz Nagel, MEd, LPC, DCC, CFC, and Kate Anthony, MSc, MBACP

Write about a fascinating forensic case. Case studies exploring forensic investigations on any topic, case, or crime—including deception, theft, murder, historical cases, and any others—are welcome. These case studies could discuss serial killers, famous fraudsters, cold cases, or any other type of case. Case studies should focus on how forensic techniques, tools, and investigations were used to break the case or solve a mystery. These could be cases you’ve worked on or simply cases that fascinate you. Submit an article for peer review. The Forensic Examiner® is always looking for articles on research, new techniques, and findings in the various fields of forensics. To submit an article for peer review, or for complete submission guidelines, please visit www.acfei.com or write to editor@acfei.com.

62 6 THE FORENSIC EXAMINER® Spring 2009

How to Submit: Whether you wish to submit an article for peer review, a fascinating case or forensic case profile, or an article on a current issue in the field of forensics, send your writing electronically (either in the body of an email or as an attachment) to editor@acfei.com. Or, send in your writing on a disc or CD to Editor, Association Headquarters, 2750 E. Sunshine, Springfield, MO 65804.

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The Forensic Examiner Creed I do affirm that: I shall investigate for the truth. I shall report only the truth. I shall avoid conflicts of advocacies. I shall conduct myself ethically. I shall seek to preserve the highest standard of my profession. As a Forensic Examiner, I shall not have a monetary interest in any outcome of a matter in which I am retained. I shall share my knowledge and experience with other examiners in a professional manner. I shall avoid conflicts of interest and will continue my professional development throughout my career through continuing education, seminars, and other studies. As a Forensic Examiner, I will express my expert opinion based only upon my knowledge, skill, education, training, and experience. The light of knowledge shall guide me to the truth and with justice the truth shall prevail. To all these things, I affirm to uphold.

Case Studies/Current Issues

James A. Brussel: The “Sherlock Holmes of the Couch” By Katherine Ramsland, PhD, CMI-V

Shaken Baby Syndrome: Convicted, But Beyond a Reasonable Doubt? By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABFM, DABPS

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False Rape Allegations: An Assault on Justice By Bruce Gross, PhD, JD, MBA, FACFEI, DABFE, DABFM, DABPS

Falsely Accused: The Elephant in the Crime Lab By Sheila Berry and Larry Ytuarte, PhD

Also in this Issue

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ACFEI News Frank Abagnale to Speak in Las Vegas

NCJRS: A Leading Reference Tool for Forensic Scientists Since 1972 Book Reviews

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Spring 2009 THE FORENSIC EXAMINER® 7

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Publisher: Robert L. O’Block, MDiv, PhD, PsyD, DMin, DD (Hon) (rloblock@aol.com) Executive Art Director: Brandon Alms (brandon@acfei.com) Associate Editor: Amber Ennis (amber@acfei.com) Assistant Editor: Karissa Scott (karissa@acfei.com) Assistant Editor: Meggin White (meggin@acfei.com) Advertising: Amber Ennis (amber@acfei.com) (800) 592-1399, ext. 157

ACFEI Executive Advisory Board Chair: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM Vice Chair: Michael Fitting Karagiozis, DO, MBA, CMI-V John H. Bridges III, DSc (Hon), CHS-V, CHMM, CSHM, DABCHS, FACFEI Cam Cope, MS, DABFET, DABFE; Chair, American Board of Forensic Engineering and Technology Dianne Ditmer, MS, RN, CFN, CMI-III, CHS-III, FACFEI, DABFN, CMI-III; Chair, American Board of Forensic Nursing Douglas E. Fountain, PhD, LCSW, DABFE, DABFSW Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHS-III, ABPP Lee Heath, DABLEE, CHS-V Brian L. Karasic, DMD, MScFin, FACFEI, DABFD, DABFM, DABFE Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V Dennis Thibodeaux, MCSEm CHS-V; Chair, American Board of Information Security and Computing Forensics Gregory M. Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP; Chair, American Board of Critical Incident Professionals

2009 Editorial Advisory Board Louay Al-Alousi, MB, ChB, PhD, FRCPath, FRCP(Glasg), FACFEI, DMJPath, DABFM, FFFFLM Nicholas G. Apostolou, DBA, DABFA, CPA, Cr.FA Larry Barksdale, BS, MA E. Robert Bertolli, OD, FACFEI, CHS-V, CMI-V Kenneth E. Blackstone, BA, MS, CFC, DABFE David T. Boyd, DBA, CPA, CMA, CFM, Cr.FA Jules Brayman, CPA, CVA, CFD, DABFA, FACFEI John Brick, PhD, MA, DABFE, DABFM, FACFEI Richard C. Brooks, PhD, CGFM, DABFE Steve Cain, MFS, DABFE, DABRE, FACFEI, MF-SQD, DABLEE Dennis L. Caputo, MS, DABFET, REM, CEP, CHMM, QEP, FACFEI Donald Geoffrey Carter, PE, DABFET David F. Ciampi, PhD, FACFEI, DABPS Leanne Courtney, BSN, DABFN, DABFE Larry Crumbley, PhD, CPA, DABFE, Cr.FA Jean L. Curtit, BS, DC Andrew Neal Dentino, MD, FACFEI, DABFE, DABFM Francisco J. Diaz, MD James A. DiGabriele, DPS, CPA, CFSA, DABFA, Cr.FA, CVA, FACFEI John Shelby DuPont Jr., DDS, DABFD Scott Fairgrieve, Hons. BSc, MPhil, PhD, FAAFS Edmund D. Fenton, DBA, CPA, CMA, Cr.FA Per Freitag, PhD, MD, FACFEI, DABFE, DABFM Nicholas Giardino, ScD, FACFEI, DABFE David H. Glusman, CPA, DABFA, CFS, Cr.FA, FACFEI Karen L. Gold, PysD, FACFEI, DABPS Ron Grassi, DC, MS, FACFEI, DABFM, DABFE James Greenstone, EdD, JD, FACFEI, DABFE, DABFM, DABECI, CMI-I, CHS-III Roy C. Grzesiak, PhD, PC Richard C. W. Hall, FACFEI, DABFM, DABFE, MD, FAPA, FAPM, FACPsych Raymond F. Hanbury, PhD, ABPP, FACFEI, DABFE, DABPS, CHS-III James Hanley III, MD, DABFM, FACFEI Nelson Hendler, MD, DABFM David L. Holmes, EdD, FACFEI, DABFE, DABPS Leo L. Holzenthal Jr., PE, DABFET, FACFEI Linda Hopkins, PhD, CFC, DABPS, DABRE Edward J. Hyman, PhD, FACFEI, DABFE, DABFM, DABPS Zafar M. Iqbal, PhD, FACFEI, DABFE, DABFM Nursine S. Jackson, MSN, RN, DABFN Paul Jerry, MA, DAPA, DABFC Scott A. Johnson, MA, DABPS, DAACCE

Philip Kaushall, PhD, DABFE, DABPS, FACFEI Eric Kreuter, PhD, CPA, CMA, CFM, DABFA, FACFEI Ronald G. Lanfranchi, DC, PhD, DABFE, DABFM, DABLEE, CMI-IV, FACFEI Richard Levenson, Jr., PsyD, DABFE, DABPS, FACFEI Monique Levermore, PhD, FACFEI, DABPS Jonathon Lipman, PhD, FACFEI, DABFE, DABPS, DABFM Judith Logue, PhD, FACFEI, DABFSW, DABPS, DABFE, DABFM Jennie Martin-Gall, CMI-I Mike Meacham, PhD, LCSW, DABFSW, FACFEI David Miller, DDS, FACFEI, DABFE, DABFM, DABFD John V. Nyfeler, CHS-III Jacques Ama Okonji, PhD, FACFEI, DABFE, DABPS Norva Elaine Osborne, OD, CMI-III Terrence O’Shaughnessy, DDS, FACFEI, DABFD, DABFE, DABFM George Palermo, MD, FACFEI, DABFE, DABFM Ronald J. Panunto, PE, CFC Larry H. Pastor, MD, FACFEI, DABFE, DABFM Theodore G. Phelps, CPA, DABFA Marc Rabinoff, EdD, FACFEI, DABFE, CFC Harold F. Risk, PhD, DABPS, FACFEI Susan P. Robbins, PhD, LCSW, DABFSW Jane R. Rosen-Grandon, PhD, DABFC, FACFEI Douglas Ruben, PhD, FACFEI, DABFE, DABFM, DABPS J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI William Sawyer, PhD, FACFEI, DABFE, DABFM Victoria Schiffler, RN, DABFN, FACFEI John V. Scialli, MD, DABFE, DABFM Howard A. Shaw, MD, DABFM, FACFEI Henry A. Spiller, MS, DABFE, FACFEI Marilyn Stagno, PsyD, DABFE, DABFM, DABPS Richard I. Sternberg, PhD, DABPS James R. Stone, MD, MBA, CHS-III, DABFE, DABFM, FACFEI Johann F. Szautner, PE, PLS, FACFEI, DABFET William A. Tobin, MA, DABFET, DABLEE, FACFEI Robert Tovar, BS, MA, DABFE, DABPS, CHS-III Brett C. Trowbirdge, PhD, JD, DABPS, FACFEI Jeff Victoroff, MD, DABFE, DABFM Patricia Ann Wallace, PhD, FACFEI, DABFE, DABFM, CFC Raymond Webster, PhD, FACFEI, DABFE, DABFM Dean A. Wideman, MSc, MBA, CFC, CMI-III, DABFE

The Forensic Examiner® (ISSN 1084-5569) is published quarterly by The American College of Forensic Examiners International, Inc. (ACFEI). Annual membership for a year in the American College of Forensic Examiners International is $165. Abstracts of articles published in The Forensic Examiner® appear in National Criminal Justice Reference Service, Cambridge Scientific Abstracts, Criminal Justice Abstracts, Gale Group Publishing’s InfoTrac Database, e-psyche database, and psycINFO database. Periodicals Postage Paid at Springfield, Missouri, and additional mailing offices. © Copyright 2009 by the American College of Forensic Examiners International. All rights reserved. No part of this work can be distributed or otherwise used without the express permission of the American College of Forensic Examiners International. The views expressed in The Forensic Examiner® are those of the authors and may not reflect the official policies of the American College of Forensic Examiners International.

Publication, editorial, and advertising offices of ACFEI, 2750 East Sunshine Street, Springfield, MO 65804. Phone: (800) 592- 1399, Fax: (417) 881- 4702, E-mail: editor@acfei.com. Subscription changes should be sent to ACFEI, 2750 East Sunshine, Springfield, MO 65804.

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Send address changes to American College of Forensic Examiners International, 2750 East Sunshine Street, Springfield, MO 65804.

8 THE FORENSIC EXAMINER® Spring 2009

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ACFEI Executive Advisory Boards American Board for Certification in Homeland Security Executive Committee: Chairman of the Executive Board for Certification in Homeland Security: John H. Bridges III, DSc (Hon), CHS-V, CHMM, CSHM, DABCHS, FACFEI Lt. Colonel Herman Statum, US Army (Ret), MS, PI, CHS-V, DABCHS, CPP Robert R. Silver, PhD, MS, BS, CHS-V, DABCHS Members of the Executive Board for Certification in Homeland Security: Nick Bacon, CHS-V, DABCHS Thomas Baines, MA, MPA, JD, CHS-V, CFC E. Robert Bertolli, OD, BS, FACFEI, DABFE, DABCHS, CHS-V, CMI-V Paul P. Donahue, CHS-V, MBA, Cr.FA, CMA, CPP, CBM Billy Ray Jackson, ATS, CSC, CHS-V Andrew J. Jurchenko Sr., Col US Army (Ret), CHS-V, DABCHS Robert L. McAlister, BS, CHS-V, DABCHS Janet M. Schwartz, PhD, CHS-V Edward W. Wallace, CHS-V, Detective 1st Grade (ret.), MA, SCSA, LPI, BS, CFI I & II, CLEI, CTO, CDHSI Eric White, BS, CHS-V, DABCHS American Board of Critical Incident Professionals Chair of the Executive Board of Critical Incident Professionals: Gregory M. Vecchi, PhD, CFC, CHS-V, DABLEE, DABCIP Vice Chair: Kent A. Rensin, PhD, DABCIP Monica J. Beer, PhD Sam D. Bernard, PhD, DABCIP, CHS-III Marie Leeds Geron, PhD, CHS-V, DABCIP Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Tina Jaeckle, CFC Marshall A. Jones, MS, DABCIP Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Rev. Roger Rickman, ACC, CFC, CHS-V, CMI-I, SSI, CRS, DABCHS, DABCIP, DAPA, FABI, PI, SCS Debra Russell, PhD, CMI-V, CHS-III, CRC, CISM, DABCIP Dorriss “Ed” Smith, Col. US Army, CHS-V, DABCIP Vincent B. Van Hasselt, PhD, DABCIP Alan E. Williams, MS, CHS-V, DABCIP American Board of Forensic AccountING Chair of the Executive Board of Accounting Advisors: Michael G. Kessler, Cr.FA, CICA, FACFEI, DABFA, DABFE Chair Emeritus: J. Bradley Sargent, CPA, CFS, Cr.FA, DABFA, FACFEI Stewart L. Appelrouth, CPA, CFLM, CVA, DABFA, Cr.FA, ABV, FACFEI Gary Bloome, CPA, Cr.FA D. Larry Crumbley, PhD, CPA, DABFA, Cr.FA, CFFA, FCPA June M. Dively, CPA, DABFA, Cr.FA Michael W. Feinberg, CPA, Cr.FA David Firestone, CPA, Cr.FA Mark S. Gottlieb, CPA/ABV/CFF, CVA, CBA, DABFA, MST David H. Glusman, CPA, FACFEI, DABFA, Cr.FA Eric A. Kreuter, PhD, CPA, CMA, CFM, FACFEI, DABFA, SPHR, CFD, CFFA, BCFT Robert K. Minniti, CPA, MBA, Cr.FA Dennis S. Neier, CPA, DABFA Kim J. Onisko, CPA, Cr.FA Joseph F. Wheeler, CPA, Cr.FA, CHS-III American Board of Forensic Counselors Chair of the Executive Board of Forensic Counselors: Marilyn J. Nolan, MS, FACFEI, DABFC, DABCIP Vice Chair: Steven M. Crimando, MA, CHS-III Chair Emeritus: Dow R. Pursley, EdD, DABFC Irene Abrego Nicolet, PhD, DABFC, MA George Bishop, LPC, LAT, LAC, FACFEI, DABFE Laura W. Kelley, PhD, LPC, DABFC, FACFEI Robert E. Longo, FACFEI, DABFC Kathleen Joy Walsh Moore, DABFC, CHS-III DeeAnna Merz Nagel, MEd, LPC, CRC, DCC, CFC Hirsch L. Silverman, PhD, FACFEI, DABFC, DABFE, DABFM, DABPS William M. Sloane, JD, LLM, PhD, FACFEI, DABFC, CHS-III, CMII, DACC, DCPC, FAAIM, FACC, MTAPA Gary Smith, MEd, FACFEI, DABFE Ava Gay Taylor, MS, LPC, DABFC, FACFEI American Board of Forensic Dentistry Chair of the Executive Board of Forensic Dentistry: Brian L. Karasic, DMD, MBA, MScFin, FACFEI, DABFD, DABFM, DABFE Members of the Executive Board of Dental Advisors: Ira J. Adler, DDS, DABFD Bill B. Akpinar, DDS, CMI-V, FACFEI, DABFD, DABFE, DABFM Stephanie L. Anton-Bettey, DDS, CMI-V Jeff D. Aronsohn, DDS, FACFEI, DABFD, CMI-V Susan Bollinger, DDS, CMI-IV, CHS-III Michael H. Chema, DDS, FACFEI, DABFD, DABFE James H. Hutson, DDS, CMI-V, DABFD, FACFEI John P. Irey, DDS, CMI-V Chester B. Kulak, DMD, CMI-V, CHS-III, CFC, DABFE, DABFD Morley M. Lem, DDS, FACFEI, DABFD, DABFM, DABFE, DABPS John P. LeMaster, DMD, DABFD, CMI-V, CHS-III, DABFM, FACFEI Jeannine L. Weiss, DDS

(800) 592-1399

American Board of Forensic Examiners Chair of the Executive Board of Forensic Examiners: Michael Fitting Karagiozis, DO, MBA, CMI-V Chair Emeritus: Zug G. Standing Bear, PhD, FACFEI, DABFE, DABFM Members of the Executive Board of Forensic Examiners: Jess P. Armine, DC, FACFEI, DABFE, DABFM Phillip F. Asencio-Lane, FACFEI, DABFE John H. Bridges III, CHS-V, CHMM, CSHM, DABCHS, DABCIP, FACFEI Ronna F. Dillon, PhD, DABFE, DABPS, CMI-V, CHS-III Nicholas J. Giardino, ScD, FACFEI, DABFE, RPIH, MAC, CIH Bruce H. Gross, PhD, JD, MBA, FACFEI, DABFE, DABFM, DABPS, DAPA Kenneth M. Gross, DC, FACFEI, DABFE, CMI-I Darrell C. Hawkins, MS, JD, FACFEI, DABFE, DABLEE, CMI-V, CHS-III, F-ABMDII, IAI-SCSA, IAAI-CFI Michael W. Homick, PhD, DABCHS, CHS-V John L. Laseter, PhD, FACFEI, DABFE, DABFM, CMI-IV, CHS-III Jonathan J. Lipman, PhD, FACFEI, DABFE, DABFM, DABPS Leonard K. Lucenko, PhD, FACFEI, DABFE, CPSI Edward M. Perreault, PhD, DABFE, FACFEI Marc A. Rabinoff, EdD, FACFEI, DABFE, CFC David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA Janet M. Schwartz, PhD, CHS-V, FACFEI, DABFE, DABFM, DABPS American Board of Forensic Engineering and Technology Chair of the Executive Board of Engineering and Technology Advisors: Cam Cope, BS, DABFET, DABFE Vice Chair: Ronald G. Schenk, MSc, MInstP, Peng (UK), CHS-III, CMI-I, SSI Second Vice Chair: George C. Frank, CFC, DABFE Chair Emeritus: Ben Venktash, DABFET, DABFE, CHSP, REA, FRSH (UK), FIET (UK) David Albert Hoeltzel, PhD Robert K. Kochan, BS, FACFEI, DABFET, DABFE J.W. “Bill” Petrelli Jr., AIA, NCARB, TAID, FACFEI, DABFET, CFC Max L. Porter, PhD, DABFET, DABFE, PE, HonMASCE, Parl, Dipl ASFE, FTMS, FACI, CFC, FACFEI James A. St. Ville, MD, MS, FACFEI, DABFET, DABFM Kandiah Sivakumaran, MS, PE, DABFET Malcolm H. Skolnick, PhD, JD, FACFEI, DABFET, DABFE American Board of Forensic Medicine Chair of the Executive Board of Medical Advisors: David E. Rosengard, RPh, MD, PhD, MPH, FACFEI, CMI-V, CHS-V, DABFE, DABFM, DABECI, FACA, FAPA, MTAPA, FAAIM Vice Chair: Michael Fitting Karagiozis, DO, MBA, CMI-V Members of the Executive Board of Medical Advisors: Terrance L. Baker, MD, MS, FACFEI, DABFM, CMI-V Douglas Wayne Beal, MD, MSHA, CMI-V, CFP John Steve Bohannon, MD, CMI-IV Zhaoming Chen, MD, PhD, MS, FAAIM John A. Consalvo, MD Edgar L. Cortes, MD, DABFM, DABFE, CMI-V, FAAP, FACFEI Albert Basil DeFranco, MD, FACFEI, DABFM, DABPS, CMI-V, CHS-III James B. Falterman Sr., MD, DABFM, DABFE, DABPS, CMI-IV, FACFEI Malcolm N. Goodwin Jr., MD, MS, FACFEI, DABFM, DABFE, FCAP, Col USAF MCFS (Ret) Vijay P. Gupta, PhD, DABFM Richard C.W. Hall, MD, FACFEI, DABFM, DABFE Louis W. Irmisch III, MD, FACFEI, DABFM, DABFE, CMI-V E. Rackley Ivey, MD, FACFEI, DABFM, DABFE, CMI-V, DABMCM, DAAPM Kenneth A. Levin, MD, FACFEI, DABFM, DABFE E. Franklin Livingstone, MD, FACFEI, DABFM, DABFE, DAAPM, FAAPM&R John C. Lyons, MD, FACS, MSME, BSE, FACFEI, DABFM, DABFET, DABFE, CMI-IV Manijeh K. Nikakhtar, MD, MPH, DABFE, DABPS, CMI-V, CHS-V John R. Parker, MD, FACFEI, DABFM, FCAP Jerald H. Ratner, MD Anna Vertkin, MD, CMI-V, DABFM Maryann M. Walthier, MD, FACFEI, DABFM, DABFE Cyril Wecht, MD, JD, FACFEI, CMI-V American Board of Forensic Nursing Chair of the Executive Board of Nursing Advisors: Dianne T. Ditmer, PhD, MS, RN, DABFN, CMI-III, CFN, FACFEI, CHS-III Heidi H. Bale, RN, CFN, CCHP Marilyn A. Bello, RNC, MS, CMI-IV, CFC, CFN, SAFE, DABFN, DABFE Wanda S. Broner, MSN, RN, FNE, CEN Cynthia J. Curtsinger, RN, CFN Linda J. Doyle, RN, CLNC, CFN, CMI-III L. Sue Gabriel, EdD, MSN, MFS, RN, Diane L. Reboy, MS, RN, CFN, LNCC, FACFEI, DABFN, CNLCP Elizabeth N. Russell, RN, BSN, CCM, BC, DABFN, FACFEI LeAnn Schlamb, MSN, RN-BC, CFN, DABFN Sharon L. Walker, MPH, PhD, RN, CFN Carol A. Wood, RN, CFN

American Board of Forensic Social Workers Chair of the Executive Board of Social Work Advisors: Douglas E. Fountain, PhD, LCSW, DABFE, DABFSW Chair Emeritus: Karen M. Zimmerman, MSW, DABFSW, DABFE Susan L. Burton, MA, MSW, LMSW, DABFSW, DABLEE Judith V. Caprez, MSW, ACS, LCSW, DABFSW Peter W. Choate, BA, MSW, DABFSW, DABFE Judith Felton Logue, PhD, FACFEI, DABFE, DABFSW, DABPS, DABFM Michael G. Meacham, PhD, LCSW, DCSW, FACFEI, DABFSW Kathleen Monahan, DSW, MSW, CFC, DABFE Susan P. Robbins, PhD, LCSW, DCSW, BCD, LDC, DABFSW Steven J. Sprengelmeyer, MSW, MA, FACFEI, DABFSW, DABFE, LISW American Board of Law Enforcement Experts Chair of the Executive Board of Law Enforcement Experts: Lee Heath, DABLEE, CHS-V Vice Chair: Darrell C. Hawkins, JD, CHS-III, DABLEE, DABFE, CMI-V Chair Emeritus: Michael W. Homick, PhD, CHS-V, DABCHS Alan Bock, CHS-III, DABLEE Tom Brady, CHS-V, DABLEE Gregory M. Cooper, MPA, DABLEE Dickson S. Diamond, MD, CHS-III, DABLEE, DABFM John E. Douglas, EdD, FACFEI, DABFE, DABLEE Les M. Landau, DO, CHS-III, FACFEI, DABLEE, DABFE, DABFM Ronald G. Lanfranchi, PhD, DC, CMI-IV, FACFEI, DABLEE, DABFE, DABFM Leonard Morgenbesser, PhD, DABFE, FACFEI Hank Paine III, PhD, CHS-IV, DABLEE, DABFC, FACFEI John T. Pompi, BA, DABLEE, DABFE, CHS-III Stephen Russell, BS, DABLEE, CMI-II, CHS-III Oscar Villanueva, CHS-V, DABLEE David E. Zeldin, MA, CHS-III, FACFEI, DABFE, DABLEE American Board of Psychological Specialties Chair of the Executive Board of Psychological Advisors: Raymond F. Hanbury, PhD, FACFEI, DABPS, DABFE, CHS-III, ABPP Vice Chair: Raymond H. Hamden, PhD, FACFEI, DABPS, DABCIP, DABCHS, DAPA, CFC, CMI-V, CHS-V Chair Emeritus: Carl N. Edwards, PhD, JD, FAAFS, FICPP, FACFEI, DABPS, DABFE Carol J. Armstrong, PhD, LPC, DABPS Robert J. Barth, PhD, DABPS Monica J. Beer, PhD John Brick III, PhD, MA, FAPA, FACFEI, DABFE, DABPS Alan E. Brooker, PhD, FACFEI, DABPS, DABFM, DABFE, CMI-III, ABPP-Cn Brian R. Costello, PhD, FACFEI, DABPS, DABFE Ronna F. Dillon, PhD, DABPS, DABFE, CMI-V, CHS-III Brent Van Dorsten, PhD, FACFEI, DABFE, DABFM, DABPS Douglas P. Gibson, PsyD, MPH, DABPS, CMI-V, CHS-III Mark Goldstein, PhD, DABFE, DABPS, FACFEI Thomas L. Hustak, PhD, FACFEI, DABPS, DABFE Richard Lewis Levenson Jr., PsyD, FACFEI, DABPS, DABFE, CTS, FAAETS Stephen P. McCary, PhD, JD, FACFEI, DABFE, DABFM, DABPS, FAACP, DAPA Helen D. Pratt, PhD, FACFEI, DABPS Douglas H. Ruben, PhD, FACFEI, DABPS, DABFE, DABFM Richard M. Skaff, PsyD, DABPS Zug G. Standing Bear, PhD, FACFEI, DABFE, DABFM Charles R. Stern, PhD, DABPS, DABFE, DABFM, FACFEI, CMI-V Joseph C. Yeager, PhD, DABFE, DABLEE, DABPS, FACFEI Donna M. Zook, PhD, DABPS, CFC American Board of Recorded Evidence Chair of the Executive Board of Recorded Evidence Advisors: Thomas J. Owen, BA, FACFEI, DABRE, DABFE, CHS-V Ernst F. W. (Rick) Alexanderson, BA, MBA, FACFEI, DABRE, DABFE Eddy B. Brixen, DABFET Charles K. Deak, BS, CPC, DABFE, FACFEI Ryan O. Johnson, BA, DABFE, DABRE Michael C. McDermott, JD, DABRE, DABFE, FACFEI Jennifer E. Owen, BA, DABRE, DABFE Lonnie L. Smrkovski, BS, DABRE, DABFE, FACFEI

Spring 2009 THE FORENSIC EXAMINER® 9

ACFEI NEWS

Florida Board of Psychology Approves ABPS

The American Board of Psychological Specialties (ABPS) is proud to announce that after its persistent petitioning and having met the required standards, the Florida Board of Psychology has granted our institution the authority to credential our qualifying Florida members with the honor of Certified Member or Diplomate.

“It is essential at this time ... that we enhance the credibility of such recognition. The credential needs to be considered true recognition of the actual possession of proficiency, competency, knowledge base, skills, and relevant experience in one or more of the five approved subspecialties. This will be achieved by meeting specific requirements, including passing written and oral examinations. By increasing such standards, there can be a cadre of well-trained professionals providing the highest caliber of care and service,” said ABPS Chair Raymond Hanbury. This new recognition from the Florida Board of Psychology ensures that certified members in the state can use the credential to further promote themselves and their achievements through the ABPS. The Board is hopeful that this step will further publicize the work of ACFEI. The ABPS offers subspecialties in addiction psychology, forensic psychology, geriatric psychology, psychotherapy, and trauma

psychology. ABPS Diplomates must meet the following criteria: • Be a psychologist • Hold a doctoral degree • Be licensed in the state in which they practice • Possess a minimum of 3 years of professional experience • Complete an oral examination conducted by ABPS Board Members • Successfully complete a written examination in one of the following subspecialties: • Addiction Psychology • Forensic Psychology • Geriatric Psychology • Psychotherapy • Trauma Psychology The American Board of Psychological Specialties looks forward to continually striving to meet the needs of its members. For more information on how to obtain this prestigious designation, please contact Member Services at (800) 592-1399. n

THEY SAVE LIVES, END ABUSE The Certified Forensic Nurse, CFN Program ®

NOW AVAILA BL ONLIN E: VERSIOE N

Forensic nurses are often the bridge that spans medicine and justice. They tend to the needs of victims and help gather and protect the evidence that can lead to a conviction and ultimate justice. The Certified Forensic Nurse, CFN® program helps forensic nurses get the respect they deserve and unites them in a supportive community of fellow professionals who are dedicated to their field.

“Forensic Nursing is a newly recognized specialty in the ﬁelds of Nursing and Forensic Sciences. The ACFEI Forensic Nursing Certiﬁcation is an important credential that indicates advanced expertise and distinguishes those nurses who possess the special skills and knowledge base required in Forensic Nursing”

Call (800) 592-1399 for more information.

–Mary K. Sullivan, RN, BSN, Phoenix, AZ 10 THE FORENSIC EXAMINER® Spring 2009

www.acfei.com

ACFEI Launches Intro to Forensic Nursing

s Dr. Dianne Ditmer

Dr. Dianne Ditmer, PhD, RN, FACFEI, DABFN, CMI-III, CFN, CHS-III, SANE, has authored a new course that will act as an introduction to forensic nursing. The course is designed for those nurses who do not meet the more rigorous requirements for the Certified Forensic Nurse, CFN® course, and it can serve as a stepping stone to that designation. There is a growing need for the training of forenisc nurses. Six thousand acts of violence are committed every day across the United States. Thirty percent of all women seeking treatment in emergency departments are victims of battering. Violence is an equal opportunity affliction. Although more women suffer from acts of violence, it affects all age groups, genders, cultures, races, religions, and knows no socio-economic boundaries. According to the National Center on Elder Abuse, victims age 80 and older are abused and neglected three times more often than younger populations. Criminal and sexual acts are also committed against the physically, mentally, or communicatively disabled. Victims are much more than faceless numbers—they are our patients. They come to (800) 592-1399

us with acute injuries exacerbated by chronic illness and social issues. They are physically fragile, emotionally devastated, and experience extreme humiliation and denial. Male survivors are often disbelieved. Gay men and women often remain silent due to societal taboos. Hearing impairment and other physical conditions attendant to advancing age often render the elderly patient unable to make their needs known, which may result in prolonged or inappropriate treatment. Providing care to victims of violence is compounded when the patient is disabled. They may have limited mobility that impairs examination, reduced mental capacity to comprehend questions, or limited communication skills to describe the event. When patients with special needs become victims of violence, healthcare providers must individualize examination techniques and modify evidence collection based upon unique patient needs. Referrals to specialized support services and law enforcement agencies must be based upon the victim’s physical and cognitive limitations, cultural considerations, age specific needs, and gender-related concerns. The Intro to Forensic Nursing course provides an evidence-based framework for nursing professionals to identify, assess, and care for victims of maltreatment and violence through the lifespan. Students will apply scientific forensic principles to the clinical setting as they deliver care to multi-cultural, multi-generational, at-risk populations. Awareness of ethical, legal, and regulatory guidelines will serve as the underpinning of the framework for the nursing process. Case study analysis will assist the student in synthesis of forensics in healthcare through injury identification

and evidence collection techniques including trace evidence, wound photography, and documentation strategies. Dianne Ditmer is a Certified Forensic Nurse and clinical educator at Kettering Medical Center in Dayton, Ohio, with a background in emergency nursing, risk management, and medical investigation. Dr. Ditmer is committed to improving the quality of care provided to vulnerable populations and victims of violence through education of multi-disciplinary professionals. Dr. Ditmer was appointed to the Governor’s Taskforce on Child Abuse. She collaborates with educators, law enforcement, and members to develop evidence-based educational programs for school systems, healthcare providers, and foster families. In addition to her role as an educator, Dianne provides direct care for living victims of abuse, neglect, and sexual assault. As a credentialed Fellow of the American College of Forensic Examiners Institute (ACFEI) and Diplomate of the American Board of Forensic Nursing (DABFN), she serves as chairman of the American Board of Forensic Nurses and board member of the Ohio Healthcare Taskforce on Family Violence. As a member of the Montgomery County Sexual Assault Response Team and contributing author of the Montgomery County Sexual Assault Protocol Manual, Dr. Ditmer collaborates with members of law enforcement, the coroner’s office, and the prosecutor’s office. Her national publications include forensic nursing certification modules for the American College of Forensic Examiners Institute, article publication in Nurses Digest, and acting as a contributing chapter author of Core Curriculum for Staff Development. As an international speaker, Dr. Ditmer presents to multi-disciplinary professionals on topics including forensic nursing, workplace violence against nurses, caring for vulnerable populations, and the impact of violence on multi-cultural, multi-generational patients. Dr. Ditmer also serves as adjunct faculty at Kettering College of Medical Arts, where she teaches forensics, research, ethics, and healthcare law. Dr. Ditmer will be presenting at the 2009 National Conference in Las Vegaas, NV. n

Spring 2009 THE FORENSIC EXAMINER® 11

ACFEI NEWS

ACFEI Launches Certified Forensic Physician® Program Forensic physicians play a crucial role in the American justice system, but they have long needed recognition for their expertise and abilities. The American College of Forensic Examiners Institute has stepped forward to establish a certification that sets standards for qualified physicians who wish to identify their specialty as forensic physicians. The Certified Forensic Physician® program is recruiting the world’s leading forensic physicians. This new certification should become the world-standard for those in this rapidly evolving field. Dr. Cyril Wecht, the world-renowned coroner and ACFEI member, said that forensic physicians provide a wide range of service. “Forensic physicians are medical and osteopathic physicians who deal with various kinds of legal matters that relate to either the civil or criminal justice system,” Wecht said. “This kind of professional prac-

tice is usually conducted on a part-time basis by any kind of medical specialist, with the exception of many forensic pathologists who are full time forensic specialists practicing in governmental medical-legal investigative offices (Coroner or Medical Examiner).” The first physicians in the program were certified in 2008. “I am honored to be one of the first Certified Forensic Physicians (CFP) in the American College of Forensic Examiners (ACFEI) organization,” said Douglas W. Beal, MD, MSHA, CMI-V, CFP. “There are many medical practitioners who claim to have a forensics background; however, few have the requisite education and experience to qualify for this prestigious title. The CFP designation is yet another step by the ACFEI to ‘raise the bar’ in the rapidly evolving forensic medical environment. I strongly encourage all qualified professionals to submit their application and supporting materials.” SM

To qualify for the CFP program, a physician must hold an active license as an MD or DO and have no disciplinary record or ethical violation with any licensing board. The physician must have at least 5 years of medical experience. For a limited time during the open enrollment period, an applicant may become certified by meeting the minimum requirements and submitting a portfolio of relevant documentation. At the conclusion of the open enrollment, applicants will be asked to complete course work and pass an examination. The examination for the program is being prepared by Dr. Michael Karagiozis. To apply for the certification, go to www. acfei.com/forensic_certifications/cfp, or call ACFEI member services at (800) 592-1399. The application may be filled out online or submitted by fax to: (417) 881-4702. Applications may also be mailed to 2750 E. Sunshine St., Springfield, MO 65804. n

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By becoming Certified in Disaster Preparedness, you will gain knowledge of the worst emergencies you may encounter. Though the worst case scenario is a large-scale terrorist attack, the truth of the matter is that individuals are more likely to experience a natural disaster or an attack at the local level, such as a bomb scare in a nearby school. The coursework will guide the participant through every aspect of knowledge, training, and equipment needed to prepare for such events. SM

Become Certified in Disaster Preparedness Today! Call Toll-Free (800) 592-0960 or (800) 592-1399 | http://chs.acfei.com/dp101

CE Article: (ACFEI) 1 CE credit for this article

crease the potential for testimonial error. Finally, a promising trend of identifying drugs by their neurochemical action is briefly discussed. One trend that has revolutionized the face of Clinical Psychopharmacology is a breakdown in the disorder-specific nature of drug treatment (i.e., the use of antidepressant drugs to treat depression, antipsychotic drugs to treat psychosis, etc.). This “off-label” prescription practice has resulted in a clear broadening of the range of possible psychological symptoms that can be positively influenced by a specific class of drugs. The purpose of this article is to present examples of this practice in the published literature and suggest how this trend has impacted forensic considerations in the area of Clinical Psychopharmacology. Although no attempt has been made to exhaust coverage of this trend, an attempt has been made to present examples representative of different classes of drugs.

“Off-label” Prescription Use of Antidepressant Drugs

Changing Rx Practices in the Treatment of Mental Illness: Impact on Forensic Evidence By Sherwood Cole, PhD, FACFEI, DABPS

“Off-label” prescription practices are increasingly used in the treatment of symptoms related to mental illness. In support of this conclusion, evidence is reviewed on the antidepressant treatment of numerous non-depressive disorders and on the antipsychotic drug treatment of non-psychotic disorders. The impact of this evidence is discussed in light of the Daubert decision rendered by the U.S. Supreme Court. It is concluded that such practices challenge the application of the decision and in-

14 THE FORENSIC EXAMINER® Spring 2009

Although many classes of drugs originally designated for treatment of a specific mental disorder appear to demonstrate a broadening range of influence on other psychological symptoms, antidepressant drugs are particularly noteworthy. This may be due, in large measure, to the fact that there are several subtypes of antidepressant drugs with each subtype having its own profile. The choice of antidepressant treatment of patients suffering from bipolar disorder (BD) finds support in two basic facts: (1) a significant number of patients with BD previously have been misdiagnosed as having unipolar major depressive disorder (MDD); and (2) patients with BD seem to have greater problems with depression than with mania (Ghaemi et al., 1999; El-Mallakh & Karippot, 2002). Evidence suggests that, although antidepressants (Tranylcypromine, Imipramine, Fluoxetine) have proven to be effective in the acute treatment of BD, they are also associated with a variety of adverse outcomes and a worsened course of bipolar illness (El-Mallakh & Karippot; Ghaemi et al.). Although stimulants have been the standard choice for the treatment of Attention Deficit Hyperactivity Disorder (ADHD), there is an impressive body of literature also documenting the efficacy of tricyclic antidepressants (TCAs) in the treatment of such symptoms in more than 1000 subjects (Spencer et al., 1996). The TCA Desipramine is not only effective in treating children and adolescents with ADHD (Spencer et al., 2002), but in treating adult patients with ADHD symptoms as well (Wilens et al., 1996). In a somewhat similar manner, the effectiveness of the atypical antidepressant Bupropion compared favorably with that of Methylphenidate (the most popular www.acfei.com

stimulant choice) in the treatment of ADHD, with its benefits apparently not due to any specific antidepressant action. This conclusion is supported by the fact that Bupropion was an effective treatment for ADHD when there was an absence of comorbid MDD (Spencer et al., 2002; Barrickman et al., 1995). Another example of the broadening influence of Bupropion beyond its antidepressant use has been its effectiveness in facilitating smoking cessation in double-blind, placebo-controlled trials (Hurt et al., 1997; Ahluwalia et al., 2002). However, the potential role of the drug’s depressive action in these findings is less clear. In one case, a reduction in comorbid depression accompanied the smoking cessation produced by the drug (Ahluwalia et al.). However, in another case, no change in the effect of Bupropion on comorbid depression was observed to accompany its smoking cessation action (Hurt et al.). The role of drug-induced changes in comorbid depression in the smoking cessation produced by Bupropion may depend upon the specific level of depression. It may also be the case that the effectiveness of Bupropion in smoking cessation is due to the drug’s unique action on norepinephrine-dopamine brain mechanisms associated with reinforcement properties and addiction (Hurt et al.). Although anxiolytic drugs would appear to be the logical choice in the treatment of anxiety-related disorders such as General Anxiety Disorder (GAD), Panic Disorder (PD), ObsessiveCompulsive Disorder (OCD), and Post Traumatic Stress Disorder (PTSD), the positive influence of antidepressant drugs in the treatment of these disorders also has been well documented. Both the antidepressant drugs Sertraline and Venlafaxine ER have proven, in double-blind, placebo-controlled trials, to be effective and well tolerated in the treatment of PTSD (Brady et al., 2000; Davidson et al., 2006a). Another recent study corroborated the findings with Venlafaxine ER (Davidson et al., 2006b) and is particularly noteworthy for the fact that the 6-month duration of the study is unique for double-blind, placebocontrolled evaluation of the drug’s efficacy in treating PTSD. Although the studies reviewed in this section clearly indicate the effectiveness of antidepressant drugs in treating clusters of non-depressive symptoms, one basic question remains—how do they produce such effects? Many of the studies do, in fact, have some comorbid depression present. However, it does not appear that the effectiveness of antidepressant drugs in such treatment contexts depends upon the result of an indirect action of these drugs on depression spilling over into the other symptom clusters. Rather, these antidepressant drugs appear to have effects specific to each of (800) 592-1399

“... there is also

these disorders (i.e., anxiolytic effects, anti-OCD effects, etc.). Such a conclusion revolutionizes conventional labeling and traditional assumptions regarding antidepressant drugs.

increasing evidence that

“Off-label” Prescription Use of Antipsychotic Drugs

antipsychotic drugs have

In addition to the above reviewed evidence for an expanded use of antidepressant drugs, there is also increasing evidence that antipsychotic drugs have a broadening range of influence on non-psychotic symptom clusters. Although evidence suggests that typical antipsychotic drugs may have some effectiveness in the treatment of BD patients (Tohen et al., 2001), most of the findings in the literature have focused on the successful use of atypical antipsychotic drugs in such treatment. For example, the atypical antipsychotic drug Clozapine proved to be effective in the treatment of patients with either BD or schizoaffective disorder (bipolar subtype) for whom Lithium, anticonvulsants, or typical antipsychotics had been ineffective (Calabrese et al., 1996). Other double-blind, placebo-controlled studies have demonstrated the effectiveness of the atypi-

a broadening range of influence on non-psychotic symptom clusters.”

Spring 2009 THE FORENSIC EXAMINER® 15

“although the studies reviewed in this section clearly indicate the effectiveness of antidepressant drugs ... how do they produce such effects?” cal antipsychotic drug Olanzapine in the treatment of acute mania symptoms in patients with BD (Tohen et al., 1999; Tohen et al., 2000). It is also of critical importance to note that there was no significant difference in the treatment advantage of Olanzapine for patients with or without psychotic features, ruling out the potential role of the drug’s antipsychotic action as a contributing factor to the findings. Although in one of these studies (Tohen et al., 2000) the effectiveness of Olanzapine on bipolar mania was significant, there was some concern about the high placebo response rate (43%). However, the authors suggested that these findings may have been related to a large percentage of patients with rapid-cycling features and differences in trial duration in the placebo group (Tohen et al., 2000). 16 THE FORENSIC EXAMINER® Spring 2009

Further evidence in a double-blind, placebocontrolled study by Tohen et al. (2002) demonstrated that the addition of Olanzapine in BD patients (manic and mixed episodes) who had been inadequately responsive to more than 2 weeks of Lithium or Valproate therapy provided superior efficacy in the treatment of manic symptoms (Young Manic Rating Scale). While the patients in the Lithium or Valproate groups also showed some limited improvement in depressive symptoms (9.5%), patients in the Olanzapine cotherapy group showed significantly greater improvement (>50%). Although improvement in depressive symptoms was significantly greater in the cotherapy group, so were adverse events (somnolence, weight gains, etc.). One study having a major impact in the medical literature is the double-blind, placebo-controlled study by Tohen et al. (2003), which examined the effects of Olanzapine and an Olanzapine-Fluoxetine combination in the treatment of BD. They found that Olanzapine was more effective than placebo, and that combined Olanzapine-Fluoxetine was more effective than Olanzapine or placebo in the treatment www.acfei.com

of BD. Although these findings would seem to suggest that Olanzapine therapy significantly improved depressive symptoms in patients with BD and that the Olanzapine-Fluoxetine combination had an even more robust antidepressant effect, these conclusions have more recently been challenged (MoreiraAlmeida & Pietrobon, 2006). This challenge was based upon two primary characteristics of the study by Tohen et al. (2003): (1) Although the difference in the Olanzapine group was statistically significant, it is questionable whether this difference should be considered clinically meaningful (39% vs. 30% difference); and (2) Some of the improvement in depressive symptoms may simply represent side effects associated with Olanzapine. However, other evidence cited in this section suggests that the effectiveness of the drug in the treatment of BD is well established. In addition to the effectiveness of Olanzapine in the treatment of BD, Keck et al. (2003a, 2003b) have demonstrated the effectiveness of the atypical antipsychotic drugs Aripiprazole and Ziprasidone in the double-blind, placebo-controlled treatment of bipolar patients (manic or mixed episodes). Aripiprazole was significantly superior to placebo in reducing acute mania in all primary and secondary efficacy variables (Keck et al., 2003a). Patients with schizophrenia and schizoaffective disorder were excluded from the study, again eliminating the potential influence of antipsychotic action of the drug as a contributing factor to the findings. In the other study (Keck et al., 2003b), Ziprasidone had significantly greater efficacy than placebo in the treatment of BD in patients with acute mania or mixed episodes. Again, patients with schizophrenia or schizoaffective disorder were excluded from the study. These latter findings appear to be quite impressive, but they are not without their critics. For example, Jagadheesan and Muirhead (2004) suggest that the findings by Keck et al. (2003a) on the effectiveness of Aripiprazole in treating bipolar patients are questionable for two reasons: (1) assessment variation due to the multi-center nature of data collection; and (2) the high attrition rate observed in both the Aripiprazole and placebo groups (58% and 79%, respectively). Although these concerns are deserving of mention, they do not appear to negate the evidence for the effectiveness of Aripiprazole in the treatment of BD. The picture that appears to emerge as a result of reviewing the effectiveness of atypical antipsychotics in the treatment of BD suggests the following conclusion. These drugs are effective in the treatment of both the depressive and manic phases of BD and that such effectiveness is not due in any way (directly or indirectly) to the antipsychotic properties of the drug. It would seem appropriate to define (800) 592-1399

VENLAFAXINE EXTENDED RELEASE The atypical antidepressant Venlafaxine ER (Extended Release) has proven to be an effective and safe treatment for patients with GAD symptoms (Gelenberg et al., 2000). Since GAD is commonly associated with other mood disorders such as MDD, it is particularly noteworthy that Venlafaxine ER was effective in this case without the presence of any associated depressive symptoms. This study was also the first double-blind, placebo-controlled study demonstrating the long-term effectiveness of Venlafaxine ER (6 months) in the treatment of GAD without the presence of associated depressive symptoms. Both Venlafaxine and the selective serotonin reuptake inhibitor (SSRI) Paroxetine appear to be effective in the treatment of PD (Papp et al., 1997; Lydiard et al., 1998), although caution is warranted in the former case due to the lack of proper placebo-controlled trials. Although the role of antidepressant drugs on comorbid depression cannot be ruled out as a factor contributing to the drugâ&#x20AC;&#x2122;s effectiveness in treating PD, evidence suggests that, at least in the case of Venlafaxine, the drug exerts its efficacy in treating PD at doses lower than those generally required to treat MDD (Papp et al., 1997). The broadening positive influence of antidepressant drugs on OCD has also been demonstrated, with these drugs becoming the first-line choice in the treatment of such symptoms (Geller et al., 1995; Piccinelli et al., 1995, Saxena et al., 2002). Although the TCA Clomipramine was the first antidepressant to be approved for the treatment of OCD, other antidepressants (most notably the SSRIs) have also demonstrated their effectiveness. One study reviewing the effectiveness of antidepressants in the treatment of OCD rank ordered them in the following manner from most effective to least effective: Clomipramine, Fluoxetine, Fluvoxamine, and Sertraline, respectively (Piccinelli et al.). Because OCD patients typically have high rates of comorbid MDD, the role of such drugs on comorbid depression as a contributing factor to the improvement in OCD symptoms cannot be overlooked. One study assessing the effects of the SSRI Sertraline and the TCA Desipramine in patients having both OCD and MDD found that the drugs improved both sets of symptoms (HoehnSaric, et al., 2000). Based upon these findings, one cannot preclude the effectiveness of antidepressants in reducing MDD symptoms as a contributing factor in the improvement in OCD, although these results must be interpreted with caution due to the lack of a placebo control. However, evidence suggests that, at least in the case of the SSRI Paroxetine, the cerebral metabolic response of patients with OCD is different than that of patients with MDD (Saxena et al.). Apparently, the effectiveness of Paroxetine in ameliorating different disorders (OCD vs. MDD) is mediated by different types of central nervous system action. This would seem to support the conclusion that, although antidepressant drugs may have some influence on comorbid MDD in OCD patients, such influence is not critical to the effectiveness of the drugs in improving OCD symptoms. Spring 2009 THE FORENSIC EXAMINERÂŽ 17

these effects on BD as specifically antidepressive and antimanic. In addition to its success in the treatment of BD, the atypical antipsychotic Olanzapine also has been found to be effective in the treatment of Borderline Personality Disorder (BPD). In a double-blind, placebo-controlled study of 6-month duration, Olanzapine proved to be a safe and effective agent in the treatment of women with BPD (Zanarini & Frankenburg, 2001). In a more recent double-blind, placebo-controlled study with a mixed sample of women and men, Olanzapine was again found to be significantly superior to placebo in the treatment of BPD (Bogenschutz & Nurnberg, 2004). In both of the above studies, weight gains (a potential problem with long-term management) were significant in the Olanzapine group. An improvement in BPD symptoms has not been limited to Olanzapine but also has been demonstrated with the additional atypical antipsychotic drug Aripiprazole. In a double-blind, placebo-controlled study, Nickel et al. (2006) demonstrated that Aripiprazole was an effective and safe treatment for patients with BPD. No significant weight gains were observed, although other common side effects (headache, insomnia, nausea, etc.) were present. The body of evidence supporting the broadening range of influence of atypical antipsychotic drugs on non-psychotic symptoms is quite impressive. Furthermore, the effectiveness of such drugs in improving non-psychotic clusters of symptoms may be due to their unique neurochemical action on dopamine and serotonin (DA/5-HT) systems (Schmidt et al., 2001), which may have a stabilizing effect. Dysfunction (destabilization) in these systems may 18 THE FORENSIC EXAMINER® Spring 2009

underlie or cause the symptoms associated with a broader spectrum of non-psychotic features.

Forensic Impact of Findings The value of an expert witness or the testimony offered by such a witness in a forensic contest clearly depends upon the reliability and clarity of evidence presented. That is to say, such testimony should be based on language that communicates information accurately. It would appear that the material reviewed in this article on the “off-label” prescription practices has, to some degree, weakened the accuracy of forensic evidence related to drug labeling in the treatment of mental illness. The “off-labeling” prescription practices reviewed in the present article would appear to be particularly critical in view of the United States Supreme Court’s ruling in the Daubert decision (Daubert v. Merrell Dow, 1993). The Daubert decision establishes a new set of criteria for courts to determine the admissibility of evidence. In addition to giving court judges a “gate keeping” function in determining the admissibility of evidence, the decision outlined four specific guiding principles for assessing the reliability of scientific evidence (Rast, 2006). These principles include testability, error rates, peer review, and general acceptance. Under Daubert, drug evidence is established by meeting operational definitions and scientific evidence, not labels. Accordingly, “off-label” prescription practices would appear to challenge the application of such principles, particularly in the case of error rate—actual or potential. For example, an expert witness using the outdated previous labeling pracwww.acfei.com

tice in the process of giving testimony conveys inaccurate or, at the very least, incomplete information about the use and range of pharmacological action of such drugs in the treatment of mental illness. Forensic scientists offering testimony on the pharmacological treatment of mental illness need to be aware of the Daubert guidelines and adjust their testimony accordingly. The “off-labeling” prescription practices discussed in this article have, in a very real sense, created a dilemma in how a practitioner identifies or labels a particular drug in the treatment of mental illness. Because original labels (anxiolytic, antidepressant, antipsychotic, etc.) appear to no longer communicate accurately the treatment choice or treatment effect of drugs, how should one identify such medication? While no definitive answer to this question has yet emerged in the literature, one trend does appear to be promising—the tendency to identify the clinical use of drugs by their mode of neurochemical action rather than by symptom labeling. Consistent with this trend, it may also be appropriate to reclassify drugs previously designated by their neurochemical action and symptom label (e.g., SSRI-antidepressants) simply by their neurochemical action without the designation of antidepressant (SSRIs). In a similar manner, it might also be appropriate to reclassify atypical antipsychotics as simply DA/5-HT stabilizers. It is recognized that this practice of re-labeling drugs used to treat mental illness by their neurochemical action is quite revolutionary and would require a considerable amount of re-orientation on the part of clinical practitioners.

Concluding Comments There is little doubt that the “off-label” prescription practices outlined in this article have weakened the credibility and accuracy of testimonial evidence and decreased the value of such evidence in a forensic context. This coupled with the fact that the guidelines established by the Daubert decision have further specified the criteria that must be met in determining the admissibility of evidence should cause a potential forensic witness to re-examine his/her strategy. At the very least, such practices should cause potential witnesses to become more sensitive to the labeling of drugs and what such labels communicate. In those instances where labels are prone to increase the probability of informational error, the potential witness should be forthright in his/her testimony, acknowledging the uncertainty of (800) 592-1399

Table 1. A summary list of generic and commonly used trade names of antidepressant drugs covered in the paper Generic name Trade name

Bupropion Clomipramine Desipramine Fluoxetine Fluvoxamine Paroxetine Sertraline Venlafaxine

Wellbutrin, Zyban Anafranil Norpramin Prozac Luvox Paxil Zoloft Effexor

Table 2. A summary list of generic and commonly used trade names of antipsychotic drugs covered in the paper Generic name Trade name

Aripiprazole Clozapine Olanzapine Ziprasidone

Abilify Clozaril Zyprexa Geodon

Table 3. Summary of abbreviations used for psychiatric diagnoses covered in the paper Abbreviations Psychiatric diagnosis

ADHD BD BPD GAD MDD OCD PD PTSD

Attention Deficit Hyperactivity Disorder Bipolar Disorder Borderline Personality Disorder General Anxiety Disorder Major Depressive Disorder Obsessive Compulsive Disorder Panic Disorder Post Traumatic Stress Disorder

conclusions drawn from such language. The choice of words used to convey the degree of certainty (or uncertainty) associated with drug designations becomes extremely important in one’s testimony. Honesty and forthrightness are still the best policy in such a situation. And it is important to remember that the game is still an adversary system of justice. Although serving as an expert witness in the drug treatment of mental illness can be an exciting and challenging role, thorough preparation by a potential witness will increase his/her credibility and allow the witness to speak forthrightly, without the threat of reprisal.

References

Ahluwalia, J. S., Harris, K. J., Catley, D., Okuyemi, K. S., & Mayo, M. S. (2002). Sustained-release Bupropion for smoking cessation in African Americans. Journal of the American Medical Association, 288, 468474. Barrickman, L. L., Perry, P. J., Allen A. J., Kuperman, S., Arndt, S. V., Herrmann, K. J., & Schumacher, E. (1995). Bupropion vs. Methylphenidate in the treatment of attention-deficit hyperactivity disorder. Journal of the American Academy of Child and Adolescent Psychiatry, 34, 649-657. Bogenschutz, M. P., & Nurnberg, H. G. (2004). Olanzapine versus placebo in the treatment of borderline personality disorder. Journal of Clinical Psychiatry, 65, 104-109. Brady, K., Pearlstein, T., Asnis, G. M., Baker, D., Rothbaum, B., Sikes, C. R., & Farfel, G. M. (2000).

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Efficacy and safety of Sertraline treatment of posttraumatic stress disorder. Journal of the American Medical Association, 283, 1837-1844. Calabrese, J. R., Kimmel, S. E., Woyshville, M. J., Rapport, D. J., Faust, C. J., Thompson, P. A., & Meltzer, H. Y. (1996). Clozapine for treatment-refractory mania. American Journal of Psychiatry, 153, 759-764. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). 113S, Ct. 2786. Davidson, J., Rothbaum, B. O., Tucker, P., Asnis, G., Benattia, I., & Musgnung, J. J. (2006a). Venlafaxine extended release in post traumatic stress disorder: A Sertraline-and placebo-controlled study. Journal of Clinical Psychopharmacology, 26, 259-267. Davidson, J., Baldwin, D., Stein, D. J., Kuper, E., Benattia, I., Ahmed, S., Pedersen, R., & Musgnung, J. (2006b). Treatment of post traumatic stress disorder with Venlafaxine extended release. Archives of General Psychiatry, 63, 1158-1165. El-Mallakh, R. S., & Karippot, A. (2002). Use of antidepressants to treat depression in bipolar disorder. Psychiatric Services, 53, 580-584. Gelenberg, A. J., Lydiard, R. B., Rudolph, R. L., Aguiar, L., Haskins, J. T., & Salinas, E. (2000). Efficacy of Venlafaxine extended-release capsules in nondepressed outpatients with generalized anxiety disorder. Journal of the American Medical Association, 283, 3082-3088. Geller, D. A., Biederman, J., Reed, E. D., Spencer, T., & Wilens, T. E. (1995). Similarities in response to Fluoxetine in the treatment of children and adolescents with obsessive-compulsive disorder. Journal of the American Academy of Child and Adolescent Psychiatry, 34, 36-44. Ghaemi, S. N., Sachs, G. S., Chiou, A. M., Pandurangi, A. K., & Goodwin, F. K. (1999). Is bipolar disorder still underdiagnosed? Are antidepressants overutilized? Journal of Affective Disorders, 52, 135-144. Hoehn-Saric, R., Ninan, P., Black, D. W., Stahl, S., Greist, J. H., Lydiard, B., McElroy, S., Zajecka, J., Chapman, D., Clary, C., & Harrison, W. (2000). Multicenter double-blind comparison of Sertraline and Desipramine for concurrent obsessive-compulsive and major depressive disorders. Archives of General Psychiatry, 57, 76-82. Hurt, R. D., Sachs, D. P. L., Glover, E. D., Offord, K, P., Johnston, J. A., Dale, L. C., Khayrallah, M. A., Schroeder, D. R., Glover, P. N., Sullivan C. R., Crogham, I. T., & Sullivan, P. M. (1997). A comparison of sustained-release Bupropion and placebo for smoking cessation. New England Journal of Medicine, 337, 1195-1202. Jagadheesan, K., & Muirhead, D. (2004). Aripiprazole for acute bipolar mania. American Journal of Psychiatry, 161, 1926-1927. (Letter to the Editor). Keck, P. E., Marcus, R., Tourkodimitris, S., Ali, M., Liebeskind, A., Saha, A., Ingenito, G., and the Aripiprazole study group. (2003a). A placebo-controlled, doubleblind study of the efficacy and safety of Aripiprazole in patients with acute bipolar mania. American Journal of Psychiatry, 160, 1651-1658. Keck, P. E., Versiani, M., Potklin, S., West, S. A., Giller, E., Ice, K., and the Ziprasidone in mania study group. (2003b). Ziprasidone in the treatment of acute bipolar mania: a three-week, placebo-controlled, doubleblind, randomized trial. American Journal of Psychiatry, 160, 741-748. Lydiard, R. B., Steiner, M., Burnham, D., & Gergel, I. (1998). Efficacy studies of Paroxetine in panic disorder. Psychopharmacology Bulletin, 34, 175-182. Moreira-Almeida, A., & Pietrobon, R. (2006). Does Olanzapine have any antidepressant effect? American Journal of Psychiatry, 163, 1838-1839. Nickel, M. K., Muehlbacher, M., Nickel, C., Kettler, C., Gil, F. P., Bachler, E., Buschmann, W., Rother, N., Fartacek, R., Egger, C., Anvar, J., Rother, W. K., Loew, T. H., & Kaplan, P. (2006). Aripiprazole in the treatment of patients with borderline personality disorder: A

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double-blind, placebo-controlled study. American Journal of Psychiatry, 163, 833-838. Papp, L. A., Sinha, S. S., Martinez, J. M., Coplan, J. D., Amchin, J., & Gorman, J. M. (1997). Low-dose Venlafaxine treatment in panic disorder. Psychopharmacology Bulletin, 34, 207-209. Piccinelli, M., Pini, S., Bellantuono, C., & Wilkinson, G. (1995). Efficacy of drug treatment in obsessive-compulsive disorder: A meta-analytic review. British Journal of Psychiatry, 166, 424-443. Rast, P. H. (2006). The Daubert decision: Accident reconstruction considerations. The Forensic Examiner, 15, 37-41. Saxena, S., Brody, A. L., Ho, M. L., Alborzian, S., Maidment, K. M., Zohrabi, N., Ho, M. K., Huang, S-C., Wu, H-M., & Baxter Jr., L. R. (2002). Differential cerebral metabolic changes with Paroxetine treatment of obsessive-compulsive disorder vs major depression. Archives of General Psychiatry, 59, 250-261. Schmidt, A. W., Lebel, L. A., Howard, H. R., & Zorn, S. H. (2001). Ziprasidone: A novel antipsychotic agent with a unique human receptor binding profile. European Journal of Pharmacology, 425, 197-201 (Abstract). Spencer, T., Biederman, J., Wilens, T., Harding, M., O’Donnell, D., & Griffin, S. (1996). Pharmacotherapy of attention-deficit hyperactivity disorder across the life cycle. Journal of the American Academy of Child and Adolescent Psychiatry, 35, 409-432. Spencer, T., Biederman, J. Coffey, B., Geller, D., Crawford, M., Bearman, S. K., Tarazi, R., & Faraone, S. V. (2002). A double-blind comparison of Desipramine and placebo in children and adolescents with chronic tic disorder and comorbid attention-deficit/hyperactivity disorder. Archives of General Psychiatry, 59, 649-656. Tohen, M., Sanger, T. M., McElroy, S. L., Tollefson, G. D., Chengappa, K. N. R., Daniel, D. G., Petty, F., Centorrino, F., Wang, R., Grundy. S. L., Greaney, M. G., Jacobs, T. G., David, S. R., Toma, V. and the Olanzapine HGEH study group. (1999). Olanzapine versus placebo in the treatment of acute mania. American Journal of Psychiatry, 156, 702-709. Tohen, M., Jacobs, T. G., Grundy, S. L., McElroy, S. L., Banov, M. C., Janicak, P. G., Sanger, T., Risser, R., Zhang, F., Toma, V., Francis, J., Tollefson, G. D., Breier, A. for the Olanzapine HGGW study group. (2000). Efficacy of Olanzapine in acute bipolar mania. Archives of General Psychiatry, 57, 841-849. Tohen, M., Zhang, F., Taylor, C. C., Burns, P., Zarate, C., Sanger, T., & Tollefson, G. (2001). A meta-analysis of the use of typical antipsychotic agents in bipolar disorder. Journal of Affective Disorders, 65, 85-93. (Abstract). Tohen, M., Chengappa, K. N. R., Suppes, T., Zarate, C. A., Calabrese, J. R., Bowden, C. L., Sachs, G. S., Kupfer, D. J., Baker, R. W., Risser, R. C., Keeter, E. L., Feldman, P. D., Tollefson, G. D., & Breier, A. (2002).

Efficacy of Olanzapine in combination with Valproate or Lithium in the treatment of mania in patients partially nonresponsive to Valproate or Lithium monotherapy. Archives of General Psychiatry, 59, 62-69. Tohen, M., Vieta, E., Calabrese, J., Ketter, T. A., Sachs, G., Bowden, C., Mitchell, P. B., Centorrino, F., Risser, R., Baker, R. W., Evans, A. R., Beymer, K., Dube, S., Tollefson, G. D., & Breier, A. (2003). Efficacy of Olanzapine and Olanzapine-Fluoxetine combination in the treatment of bipolar 1 depression. Archives of General Psychiatry, 60, 1079-1088. Wilens, T. E., Bieman, J., Prince, J., Spencer, T. J., Faraone, S. V., Warburton, R., Schleifer, D., Harding, M., Linehan, C., & Geller, D. (1996). Six-week, double-blind, placebo-controlled study of Desipramine for adult attention deficit hyperactivity disorder. American Journal of Psychiatry, 153, 1147-1153. Zanarini, M. C. & Frankenburg, F. R. (2001). Olanzapine treatment of female borderline personality disorder patients: A double-blind, placebo-controlled pilot study. Journal of Clinical Psychiatry, 62, 849-854. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 21 or complete the exam online at www.acfei.com (select “Online CE”).

About the Author Dr. Sherwood Cole received his MA from UCLA and a PhD in Psychology from Claremont Graduate University. He is Professor Emeritus of Psychology at Rutgers University and taught Clinical Psychopharmacology on a part-time basis at Rosemead School of Psychology, Biola University for 8 years. In addition to teaching at the graduate-school level for more than 30 years, he has published extensively on the neural mechanisms and behavioral effects of psychotropic drugs. He is a member of the Society for Neuroscience, a member of the American Psychological Association (Division 28-Psychopharmacology and Substance Abuse), a Fellow of the Royal Society of Health in England, a Fellow of the American College of Forensic Examiners Institute, as well as a Diplomate of the American Board of Psychological Specialties (specialty in psychopharmacology). www.acfei.com

Law CEEnforcement ARTICLE 1: Changing Rx Practices in the Treatment of Mental Illness (Pages 14-20) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE

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LEARNING OBJECTIVES

KEYWORDS: off-label prescriptions, Daubert decision, testimonial error

After studying this article, participants should be better able to do the following:

TARGET AUDIENCE: open to all

1. Describe the increased use of “off-label” prescription practices in treating mental illness. 2. Provide evidence for the use of antidepressent drugs in treating non-depressive symptoms and the use of antipsychotic drugs in treating non-psychotic symptoms. 3. Demonstrate how the Daubert decision influences “off-label” prescription practices.

PROGRAM LEVEL: Basic DISCLOSURE: The author has nothing to disclose. PREREQUISITES: none

ABSTRACT “Off-label” prescription practices are increasingly used in the treatment of symptoms related to mental illness. In support of this conclusion, evidence is reviewed on the antidepressant treatment of numerous non-depressive disorders and on the antipsychotic drug treatment of non-psychotic disorders. The impact of this evidence is discussed in light of the Daubert decision rendered by the U.S. Supreme Court. It is concluded that such practices challenge the application of the decision and increase the potential for testimonial error. Finally, a promising trend of identifying drugs by their neurochemical action is briefly discussed.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 “Off-label prescription practices involve: a. The use of non-prescription drugs in treating mental illness symptoms b. The use of prescription drugs to treat mental illness symptoms other than their originally designated use c. The prescribing of illegal drugs such as marijuana in the treatment of mental illness d. The use of prescription drugs to treat mental illness without properly labeling them

4 The drug Lithium: a. Is the first line of defense in the treatment of bipolar disorder b. Has been used as an adjunct medication in the antidepressant treatment of anticonvulsive therapy release c. May have some antidepressant action d. All of the above

2 Antidepressant drugs have been used to treat all of the following non-depressive symptoms except: a. Attention deficit hyperactivity disorder b. General anxiety disorder c. Smoking disorder d. Sleeping disorder

5 The use of “off-label” prescription practices is most likely to fail which of the Daubert criteria? a. Potential error in expert’s methodology b. Testability of results c. Ability to subject results to peer review d. General acceptance of evidence by the scientific community

3 The mechanism of central action underlying the effects of atypical antipsychotic drugs on non-psychotic symptoms involves: a. The stabilizing of dopamine and serotonin systems b. The blocking of norepinephrine reuptake c. The destabilizing of dopamine systems d. The facilitating of norepinephrine release

6 Which of the following more recent drugs used to treat ADHD is labeled as a selective serotonin reuptake inhibitor? a. Methylphenidate b. Atomoxetine c. Bupropion d. Desipramine

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Spring 2009 THE FORENSIC EXAMINER® 21

CE Article: (ACFEI) 1 CE credit for this article

Emotional aw L f o s d e Ne t n e m e c r Enfo : l e n n o s r Pe n ompariso

C sment s p e u s o s r A G l s ed Contro xtual Ne e t n o C e Using th in

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22 THE FORENSIC EXAMINERÂŽ Spring 2009

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Since the early 1930s, when the Wickersham Commission urged the development of professional police forces (Monroe & Garrett, 1931), police departments have used tests to assess aspiring police officers who wish to “serve and protect” their communities. Historically, assessment has taken the form of psychological tests designed to prevent persons with undesirable characteristics from being hired, namely individuals who are likely to behave inappropriately, to be violent, abusive or dishonest, and to predict job-related behavior (Dwyer, Prien, & Bernard, 1990). Recent data (Cochrane, Tett, & Vandecreek, 2003) suggest that 90% of the police departments require psychological evaluation of applicants. Forensic literature tends to focus on the use and characteristics of those instruments and provides insight into the ability of tests to predict the future behavior of persons expected to succeed in law enforcement (Detrick, Chibnall, & Luebbert, 2004; McQuilkin, Russell, Frost, & Faust, 1990; Cutler & Muchinsky, 2006; Varela, Boccaccini, Scogin, Stump, & Caputo, 2004). Understandably, most discussions are from the perspective of work, but persons can be best understood in all of life’s contexts. On one hand, one’s experiences in law enforcement influence how that person understands life, much as one’s experience in any occupation. Constant contact with the underside of society and the responsibility to control behavior of members of the public who may lack controls contribute to the development of cynical attitudes, serving to insulate police from civilians (Richardson, 1974). On the other hand, police as members of the community at large have families, belong to church and service organizations and carry on their lives as anyone else in the community. Law enforcement personnel live full lives, working to make personal meaning of life in a variety of settings. Assessments serve us best when they help us understand how persons function in a number of settings. By looking at law enforcement persons from a more normative, less pathological perspective, acknowledging that police are essentially no differ-

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ent from others in terms of their basic emotional needs, the pathological perspective ordinarily implicit in psychological assessment can be put aside. In this study, we attempt to compare law enforcement and non law enforcement personnel across a variety of settings in order to find clues that will help us understand how law enforcement persons manage and meet basic emotional needs. In this way, we can simultaneously appreciate the unique place that law enforcement personnel play in the context of their work and how that interacts with other, non-police functions. The theoretical basis of this investigation is found in William Glasser’s Choice Theory (Glasser Institute, 2006). In Choice Theory, Glasser maintains that persons have five basic needs: survival, power, love and belonging, fun, and freedom. In all of life’s contexts, persons choose behaviors and situations in which those needs will be satisfied, but different needs are met in varying degrees in different situations. The Contextual Needs Assessment (CNA) is an adjective checklist that requires the individual to identify those personal characteristics that best describe him/her in a variety of settings, ranging from relationships with family and extended family, to work contexts and relationships in non-work and non-family settings. The CNA has been shown to be a valid and reliable instrument for use with groups and individuals (Brown & Swenson, 2005), and it has been used in a variety of settings, most recently comparing school superintendents and how they make decisions in a variety of contexts (Brown, Swenson, & Hertz, 2007).

Design This study compares two groups of individuals who completed the CNA. The first group was comprised of 230 law enforcement persons from a large urban area who were advanced undergraduate and graduate students. Their median age was 36 years old, and their median length of time in law enforcement was 10 years. Males comprised 78% of the group.

Spring 2009 THE FORENSIC EXAMINER® 23

Table 1 Group Means Across Scales and Situations Survival

Power

Love/Belonging

Fun

Freedom

Police

Controls

Police

Controls

Police

Controls

Police

Controls

Police

Controls

Extended Family

3.10(2.51)

2.84(2.10)

2.61(2.46)

2.02(2.07)**

5.85(3.28)

6.39(2.90)*

4.54(3.21)

4.40(3.09)

1.35(1.92)

1.52(1.89)

Home

3.96(2.83)

3.75(2.42)

3.55(2.79)

3.16(2.52)

6.71(3.05)

6.90(2.83)

5.29(3.12)

4.84(3.09)

1.68(2.09)

2.14(2.13)*

Friends

2.44(2.31)

2.10(1.88)

1.90(2.25)

1.67(1.86)

4.54(3.05)

5.99(4.76)***

5.19(2.81)

5.33(2.85)

1.81(2.14)

1.97(2.09)

Peers

3.50(2.39)

3.24(2.10)

3.19(2.84)

2.81(2.44)

3.19(2.81)

4.37(2.58)***

3.02(2.97)

2.75(2.64)

1.49(2.07)

1.45(1.69)

Supervisors

3.16(2.04)

3.15(1.96)

2.04(2.46)

1.91(2.00)

1.88(2.22)

2.84(2.43)***

1.61(2.49)

1.26(1.87)

1.27(1.90)

.98(1.46)

Subordinates

2.59(2.47)

2.81(2.18)

3.13(3.06)

3.46(2.72)

2.83(2.78)

4.89(2.94)***

1.97(2.60)

2.59(2.68)**

1.08(1.90)

1.01(1.62)

Strangers: Social

3.05(2.10)

2.66(1.60)*

1.52(2.29)

.97(1.57)**

2.01(2.34)

2.75(2.23)***

2.19(2.89)

2.02(2.42)

1.20(1.85)

1.19(1.63)

Strangers: work

3.14(2.22)

2.74(1.71)*

2.80(3.02)

1.74(2.20)***

1.99(2.42)

2.69(2.20)***

1.35(2.37)

1.31(1.99)

1.16(1.89)

1.05(1.45)

*p<.05. **p<.01. ***p<.0001 Standard deviation in parentheses

“generally, both groups view home, work peers, subordinates, and work relationships with strangers as meeting power needs more successfully ...”

The second group was an aggregate of 316 persons, 198 of whom were college undergraduate and graduate students enrolled in non law enforcement programs, and 118 were professional educators. These individuals and their characteristics are reported in Brown and Swenson (2005) and Brown, Swenson, and Hertz (2007).

Results A 5 (Scales: Survival, Power, Belonging, Fun, Freedom) x 8 (Situations: Extended Family, Home, Friends, Peers, Supervisor, Subordinates, Social Strangers, Work Strangers) x 2 (Groups: Police, Control) Multivariate Analysis of Variance (MANOVA) was conducted. Significant main effects were found on Scales, df = 4, F = 387.442, p = .000, and Situations, df = 4, F = 70.011, p =.000. Significant interaction effects were also found with Scales x Groups, d f= 4, F = 2.642, p < .032, Situations x Groups, df = 7, F = 8.588, p = .000, Scales x Situations, df = 28, F = 285.441, p = .000, and Scales x Situations x Groups, df = 28, F = 15.940, p = .000. Post hoc t-tests, as shown on Table 1, suggested that police and controls differ in the way they meet basic emotional needs, particularly as measured in Belonging and Power, and to a lesser degree in Survival, Fun, and Freedom.

Analysis of Effects Scales The data in this study show that police and controls score highest in Belonging, followed by Fun with extended family, home, and friends. In all 24 THE FORENSIC EXAMINER® Spring 2009

contexts, these scales are followed by Survival, Power, and Freedom. This is consistent with Glasser (2006), who reports that the most important need is Belonging, because closeness with persons whom we care about is the beginning of satisfying all other needs. Both police and the control group tend to rely less on work relationships to meet Belonging needs.

Situations The Belonging and Fun scales vary the most across all situations, with both groups choosing to meet those needs with extended family, in the home, and with friends. The Belonging means were substantially lower in work contexts than other situations for both groups. The highest Belonging mean score fell at 6.90 in the home situation with controls, and the lowest at 1.88 in the supervisor situation with police. Power scale scores also vary across situations, but the variance is not as extreme as with Belonging. Generally, both groups view home, work peers, subordinates, and work relationships with strangers as meeting Power needs more successfully than relationships with extended family, friends, work supervisors, and strangers in social settings. Survival scores vary even less among both groups, but both groups view home relationships as more salient for meeting Survival needs than extended family and friends. Freedom scales were the lowest for both groups, with highest means falling at 2.14 for the control group at home, but with all other means falling between .98 and 1.97 for both groups in all other situations. www.acfei.com

Scales x Situations x Groups There are more similarities than differences between the police and the control group, with 25 of the 40 scales showing no significant difference. In general, law enforcement personnel and the control group use various life situations in similar ways to meet needs. Nevertheless, there are significant differences. We will compare differences on scales, then situations.

Survival There is a non-significant but consistent tendency for police to focus more on Survival needs in all contexts. In all but one situation, subordinates, scores were higher for police than the control group. Mean Survival scores were significantly higher for police than the control group when dealing with strangers in work situations, t(410.137) = 2.300, p <.022, a phenomenon that carries into dealing with strangers in social settings where police score significantly higher than the control group, t(407.447) = 2.38, p <.018.

and friends, but police use strangers in social situations significantly less than the control group to meet those needs, t(543) = -3.529, p < .0001.

Fun The control group meets more Fun needs with subordinates than do police, t(543) = -2.715, p < .007, but there are no significant differences between mean Fun scores in other situations. Data suggest that the control group is able to meet more Fun needs with work relationships than are police, but both groups meet Fun needs with extended family, home, and friends, and to a lesser extent, with peers.

Freedom Generally, these data suggest that Freedom needs for both the control group and police tend to be low. For both groups, Freedom mean scores fell between 1.01 (for the control group working with subordinates) to 1.81 (for police among friends).

Power

Analysis by Situations

As with Survival, there is a consistent but non-significant tendency for police to focus more on Power needs in relationships with extended family, home relationships, friends, and peers. Police are significantly more focused on Power needs with strangers in work settings than the control group t(394) = 4.5, p = .000, but as with Survival, that carries into dealing with strangers in social settings, where police score significantly higher than the control group, t(378.69) = 3.191, p < .002. Police scored the highest with meeting Power needs in home relationships, which was followed by meeting Power needs with subordinates. With the control group, this relationship is reversed, with the control group scoring higher in meeting Power needs with subordinates first, then in home relationships. The difference between police and the control group in meeting Power needs at home approached statistical significance, t(460.7311) = 1.686, p < .092.

Although many of the observations reported below were previously reported, an analysis by situation may prove helpful in understanding how police and the control group incorporate need satisfaction into their daily lives.

Belonging Police scored significantly lower in Belonging than the control group in all situations but one: home. These data suggest reluctance among police to use other resources to meet Belonging needs, including extended family, friends, social strangers, as well as work relationships. Both groups meet most Belonging needs with extended family, home, (800) 592-1399

Peers The needs profile tended to be flattened for both groups, who use peers about equally to meet Belonging, Power, Survival and Fun needs. The control group used peer relationships significantly more than police to meet Belonging needs, t(543) = 5.081, p < .0001.

Supervision Both groups scored slightly higher on Survival needs among supervisors, which suggests that surviving that relationship has particular need satisfying value, but neither group focuses on the use of supervisor relationships to satisfy Power, Fun, or Freedom needs. As with other settings, the control group scored significantly higher in using supervisory relationships to meet Belonging needs than police, t(515.230) = -4.795, p = .000.

Subordinates The control group scores significantly higher on using the work subordinate relationship to meet Belonging needs than do police, t(543) = -8.232, p < .0001. Nonetheless, both groups tend to score lower than 3.5 on using the work subordinate relationship to meet Survival, Power, Fun, or Freedom needs.

Strangers at Work

The scoring pattern for this situation is consistent with mean scores: Both groups score highest in Belonging and Fun. They are able to fill these needs in that setting and with their extended families. On the other hand, police scored significantly lower than the control group in using the extended family to meet Belonging needs but significantly higher in using that situation to meet Power needs.

Neither group scores above 3.13 in using relationships with strangers to meet needs, particularly Fun or Freedom needs, which fall below 1.50 for both groups. When working with strangers, police are shown to be much more sensitive to meeting Survival needs, t(410.137) = 2.3, p < .022, and Power needs, t(394.588) = 4.52, p = .000. As with other situations, the control group uses relationships with strangers at work to meet Belonging needs more than police, t(543) = -3.529, p =.0001.

Home

Strangers in Social Situations

As with extended family, both groups scored highest in Belonging and Fun needs at home. In this setting, the control group meets more Freedom needs than police, t(543) = 2.519, p < .012 .

The scoring profile is slightly more elevated for both groups on Survival scores, but police tend, more than the control group, to use this situation to meet Survival needs, t(407.447) = 2.381, p <.018. Although using social situations with strangers to meet Power needs is de-emphasized for both groups, police score significantly higher than the control group in meeting Power needs through relationships with strangers in social situations, t(378.69) = 3.191, p < .002. As in previous contexts, the control group scores significantly higher in its use of relationships with strangers in social settings to

Extended Family

Friends Generally, both groups meet Belonging and Fun needs through friends, but the differences between police and the control group were highly significant, with the control group using friends to meet Belonging needs more than police, t(543) = 5.081, p < .0001.

Spring 2009 THE FORENSIC EXAMINER速 25

meet Belonging needs than police, t(543) = -3.723, p = .000. Neither group tends to use relationships with strangers in social settings to meet Fun or Freedom needs.

Discussion Survival Survival need satisfying behaviors can be expected to remain constant across all situations. Individuals are not likely to demonstrate high Survival needs in one situation and low in another. However, with law enforcement personnel, a marked difference can be found in Survival needs as they are experienced in dealing with strangers in both work and social situations. This finding makes good sense in light of the high level of threat to police officers in situations where strangers may be engaged in unpredictable behaviors. The significant difference demonstrated by police in the areas of strangers in the work situation and strangers in social situations indicate an appreciation of the dangers involved in their interactions with individuals unknown. It is healthy that these differences exist, because it encourages a level of care and attentiveness that serves to protect law enforcement personnel as they go about their daily interpersonal encounters.

Power A similar distinction between law enforcement personnel and the control group is evidenced in Power need satisfying behaviors. Once again, police evidence a significantly high need for Power when experiencing situations involving strangers in both work and social situations. The similarity to Survival is compelling. As with Survival need satisfying behaviors, police demonstrate Power need satisfying behaviors acutely when unfamiliar individuals are involved. Frequently, police are in positions of authority when dealing with strangers. Therefore, it is important that they recognize this as an appropriate situation to demonstrate Power need behaviors. Individuals who do not exhibit the need to demonstrate Power behaviors in dealing with strangers would most likely be ineffective in law enforcement.

Belonging The results of this study are likely more striking in similarities than in differences. The most significant similarity is the reinforcement of Glasserâ&#x20AC;&#x2122;s theory that Belonging needs are the very foundation of need satisfaction in healthy adults. Because this study in no way addresses the unique characteristics of unhealthy individuals, but chooses to focus on healthy adult behavior, it seems to support Glasserâ&#x20AC;&#x2122;s theory that Belonging is the primary need to be satisfied regardless of occupation. In every group studied by these authors, Belonging has always been the need reported as primary. 26 THE FORENSIC EXAMINERÂŽ Spring 2009

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Although the need for Belonging is pre-eminent in its presence, the need is met in different ways with different individuals. Herein lie some of the differences evidenced between the police group and the control group. Law enforcement personnel seem to count on their relationships at home to be the primary site for meeting their Belonging needs. Therefore a stable, supportive, happy home environment would seem to be critical to the need satisfaction of successful law enforcement personnel. More than members of the control group, police officers do not seem to count on relationships with extended family, friends, and colleagues at work to satisfy their Belonging needs. Difficulties in home relationships, therefore, may be a greater burden to law enforcement personnel than to others. By focusing on the home environment as the single, largest site of Belonging need satisfaction, police officers may be limited in their ability to successfully cope if and when those relationships become strained.

Fun While all individuals, according to Glasser, have a fundamental need for Fun, those needs are met by various people in different ways. A significant difference between law enforcement personnel and the control group is evident in Fun need satisfying behaviors. Law enforcement personnel do not experience Fun need satisfying behaviors with their subordinates at work as much as does the control group. The hierarchical nature of police department organizations may well account for this significant difference. The line-staff relationship between individuals within the structure of the police hierarchy makes clear distinctions between bosses and subordinates. These clear lines create distinctions that are respected by all individuals within the organization. Most individuals within the control group experience work situations that are much less structured and well defined. The blurred lines that exist between supervisors and subordinates in work life outside the world of law enforcement allow for more relationship building between and among various levels within the organization.

Freedom For both law enforcement personnel and members of the control group, the basic need for Freedom represents the lowest number of need satisfying behaviors. The structure of the work life of most people, certainly those involved in the highly structured world of police work, would not be need satisfying to the high Freedom need individual. High Freedom need individuals would seldom find any structured work environment satisfying, much less the highly structured, regimented, and disciplined environment of the police workplace. (800) 592-1399

About the Authors

Conclusion Individuals entering law enforcement would be well advised to appreciate the differences that exist in need satisfaction that are unique to their occupation. Persons in this occupation demonstrate a high level of support from their immediate families at home. They are wary of strangers in both work and social situations. They do not form close, supportive relationships with those beneath them in the organizational structure of their work environment. Their behaviors in each of these areas set them apart from the larger population and distinguish them as being competent and successful. Future studies comparing new members of the law enforcement occupation with more experienced police officers would prove helpful to anyone seeking police work as a potential life commitment. Such a comparison would also address the question of stability of needs over time.

References Brown, T., Swenson, S., & Hertz, K. (2007). Identifying the relative strength of Glasser’s five basic needs in school superintendents. AASA Journal of Scholarship and Practice, 3(4), 5–12. Brown, T., & Swenson, S. (2005). Identifying basic needs: The contextual needs assessment. Journal of Reality Therapy, 24(2), 7–10. Cochrane, R. E., Teft, R. P., & Vandecreek, L. (2003). Psychological testing and the selection of police officers. Criminal Justice and Behavior, 30, 511–537. Cuttler, M. C., & Muchinsky, P. M. (2006). Prediction of law enforcement training performance and dysfunctional job performance with general mental ability, personality and life history variables. Criminal Justice and Behavior, 33, 3–25. Detrick, P., Chibnall, J. T., & Luebbert, M. C. (2004). The revised NEO personality inventory as predictor of police academy performance. Criminal Justice and Behavior, 31, 676. Dwyer, W. O., Prien, E., & Bernard, J.L. (1990). Psychological screening of law enforcement officers: a case for job relatedness. Journal of Police Science and Administration, 17, 176–182. Glasser Institute. (2006, May 11). Choice therapy. Retrieved July 18, 2007, from http://www.wglasser.com/index. php?option=com_content&task=view&id=12&Itemid=27 McQuilkin, J. I., Russell, V. L., Frost, A. G., & Faust, W. R. (1990). Psychological test validity for selecting law enforcement officers. Journal of Police Science and Administration, 17, 289–94. Monroe, D., & Garrett, E. W. (1931, January 19). Report on Police, Vol. 4, No. 11. In George W. Wickersham, United States Wickersham Commission. National Commission on Law Observance and Enforcement. Washington, D.C.: United States Government Printing Office. Richardson, J. F. (1974). Urban Police in the United States. Port Washington, N.Y.: National University Publication Kennikot Press. Varela, J. G., Boccacini, M. T., Scogin, F., Stump, J., & Caputo, A. (2004). Personality testing in law enforcement employment settings: A meta-analytic review. Criminal Justice and Behavior, 31, 649. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 28 or complete the exam online at www. acfei.com (select “Online CE”).

Stuart Swenson, EdD, is a psychologist in private practice and adjunct faculty member at Concordia University, Chicago. In educational settings, he served as a teacher in public schools and at the university level. He served as a school psychologist and administrator in student services and program assessment. In clinical settings, he has served as the psychologist on a hospital medical staff. Timothy Brown, EdD, is an associate professor of leadership at Concordia University, Chicago. Previous to his work at the university, he held a variety of public school administrative positions for 25 years. During that time, he served as high school principal, associate superintendent of schools, and superintendent of schools. David Plebanski, PhD, is an associate professor and Director of the Master’s Program in Public Safety Administration at Calumet College of St. Joseph. He is also a retired detective from the Chicago Police Department, with 31 years of service.

Author Note The authors wish to thank Mark Swenson for his assistance with locating sources.

Spring 2009 THE FORENSIC EXAMINER® 27

Law CEEnforcement ARTICLE 2: Emotional Needs of Law Enforcement Personnel (Pages 22-27) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive one CE credit, each participant is required to

This article is approved by the following for continuing education credit:

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

LEARNING OBJECTIVES

KEYWORDS: assessment, emotional needs, choice theory, Glasser

After studying this article, participants should be better able to do the following:

TARGET AUDIENCE:

1. Identify Glasser’s five basic needs. 2. Identify the emotional needs of law enforcement personnel and how they compare with a control group. 3. Identify the context of needs satisfying behavior among law enforcement personnel and how they compare with a control group.

PROGRAM LEVEL: DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: none

ABSTRACT The emotional needs of 230 law enforcement personnel in the urban Midwest were compared with a control group of 316 persons using the Contextual Needs Assessment, an instrument designed to assess the emotional needs of persons in accordance with William Glasser’s Choice Theory. Groups were compared in a number of life contexts including needs with extended family, home, friends, peers, supervisors, subordinates, strangers in social settings and strangers in work settings. Multivariate Analysis of Variance and post hoc statistical analysis showed significant differences between groups on subscales and situations. Most statistical and clinical differences were found on Love and Belonging and Power subscales across situations.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 Which of the following is not one of Glasser’s basic needs? a. Love and belonging b. Power c. Freedom d. Fun e. Hopefulness

4 Which situation was not addressed in the study? a. Home b. Friends c. Supervisors d. Subordinates e. Difficult relationships

2 Which need is the greatest in the studied law enforcement group? a. Power b. Survival c. Hopefulness d. Fun e. Love and belonging

4 In which situation and need do both groups score highest? a. Freedom with friends b. Survival with strangers at work c. Power with supervisors d. Love and belonging with peers e. Love and belonging at home

3 What need is greatest in the control group? a. Power b. Survival c. Hopefulness d. Fun e. Love and belonging

5 Which of the following is true? a. Police score higher than controls in Love and belonging. b. Police score higher than controls in Power. c. Controls score higher than police in Love and belonging. d. Both A and C e. Both B and C

EVALUATION: Circle one (1=Poor 2=Below Average 3=Average 4=Above Average 5=Excellent)

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Case Study

James A. Brussel: The “Sherlock Holmes of the Couch” Playing the Odds

By Katherine Ramsland

e’ll be wearing a double-breasted suit, buttoned.” Such precise detail seemed amazing—even absurd—to the investigators who had just spent the afternoon with Dr. James A. Brussel, a psychiatrist based in Greenwich Village. They had shown him a collection of letters and photos from the unsolved 16-year spree of the infamous “Mad Bomber” of New York City. Although no bomb had yet been lethal, the attacks had grown more dangerous. Brussel studied the letters to deduce the unknown perpetrator’s ethnicity, living conditions, skills, educational level, issues, and disorders. Eventually, the detectives made an arrest and parts of the profile were an impressive match—even to the offender’s preference in clothing.

James A. Brussell

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The mythic version of how a psychiatrist helped end the offender’s attacks has been told in many venues, usually idealized, but just how Brussel worked and who he was has been overlooked. He called his method “my own private blend of science, intuition, and hope.” Brussel wasn’t always right, but over half a century ago he did help launch what is now a veritable industry in forensic behavioral assessment.

More than 3 dozen explosions occurred in Manhattan between 1940 and 1956, in public places such as Radio City Music Hall and Grand Central Station. The perpetrator had sent a barrage of angry letters to the area newspapers, politicians, and a utility company, Consolidated Edison. In 1956, psychiatrist James A. Brussel—also a skilled handwriting analyst—was asked for an analysis to help catch the perpetrator. At the time, he was an associate of the chief of New York’s Bureau of Missing Persons and had spoken at several conventions for police chiefs. The idea of using a psychiatric consultant for crime scene analysis was unprecedented, but the detectives had tried everything else. Thus, three investigators showed Brussel whatever they had. Expecting to find a method to the bomber’s madness, Brussel studied the crime-related material and provided details that same afternoon: Because the first letter had been sent to Consolidated Edison, he surmised that the offender was probably a former employee with a grudge. Because bombs were the weapons of choice, he thought the perpetrator was most likely a male European immigrant, which also revealed his likely religion: Roman Catholic. His progressively more paranoid messages placed his age between 40 and 50 and suggested he was a fastidious loner. Thus, he probably lived with an older female—a mother figure—who took care of his basic needs. Because the letters were often mailed in Westchester County, if one considered this to be halfway between his home and his target, he probably resided in an ethnic community not far from the city. From the letters, Brussel outlined a few more traits and behaviors: The bomber probably attended church and was quiet, polite, and helpful, although he would have difficulty managing his anger. He would also be miserly; hence, the old-fashioned suit. In addition, although the Mad Bomber had been meticulous in his missives about forming each letter of the alphabet with straight lines, the ‘w’ was always rounded. This signaled to the Freudian psychiatrist sexual issues and a deep love for his mother. Years later, Brussel explained his reasoning in his 1968 memoir, Casebook of a Forensic Psychiatrist. His deductions were based on simple probability, flavored by his clinical experience. He did offer erroneous notions about the offender, such as having a facial scar, Spring 2009 THE FORENSIC EXAMINER® 29

Known Victims of the Boston Strangler

1. Anna Slesers, age 55, June 14, 1962 2. Mary Mullen, age 85, June 28, 1962 3. Nina Nichols, age 68, June 30, 1962 4. Helen Blake, age 65, June 30, 1962 5. Da Irga, age 75, August 19, 1962 6. Jane Sullivan, age 67, August 20, 1962 7. Sophie Clark, age 20, December 5, 1962 8. Patricia Bissette, age 23, December 31, 1962 9. Mary Brown, age 69, March 9, 1963 10. Beverley Samans, age 23, May 6, 1963 11. Evelyn Corbin, age 58, September 8, 1963 12. Joann Graff, age 23, November 23, 1963 13. Mary Sullivan, age 19, January 4, 1964 Information retrieved from http://www. allserialkillers.com/boston_strangler.htm

being of Germanic extraction, and living in White Plains, New York, but having no precedent for such an analysis, Brussel was cutting his own pattern. He also suggested a strategy for how to use his analysis. Upon completing the profile, Brussel urged the police to publish it in the newspapers, because he was certain from the emotional tone in the letters it would draw a response. The Bomber wanted people to see how important he was, which he seemed to measure by newspaper coverage. Brussel’s suggestion worked. Although the profile sparked several false leads and drew an abundance of tips that wasted police resources, the perpetrator did respond, pointing out errors and revealing the date of the incident that had so angered him. With that, it was possible for Consolidated Edison to check through its abundant employee records. Early in 1957, a clerk broke the case when she matched unique phrases the Bomber had used to phrases in written complaints to the company. When the police finally arrested George Metesky, age 54, in Waterbury, Connecticut, he was in his robe and pajamas. He did live with two unmarried older sisters and was of the correct ethnicity and religion. He owned a typewriter, which was matched to the letters, and had a workshop stocked with tools and materials for making the bombs. The police told him to get dressed, and he returned (according to Brussel’s memoir) buttoning up a double-breasted suit. Nevertheless, it was not the profile’s details that had assisted the police, but the way it had provoked Metesky to reveal himself. Despite Brussel’s warning that a psychiatric analysis might influence tunnel vision, which could mislead rather than lead, he continued to be in demand for similar consultations, and he included six such tales in his memoir. In each, he studied what the criminals did to deduce who they were. Although he took pride in being consulted and always believed he was right, in light of what we now know about criminal behavior, his analysis of the series of 11 murders in Boston from 1962–64 seems unsophisticated, even amusing.

Success Breeds Confidence

s Gainsborough Street, site of the first murder attributed to The Boston Strangler

A graduate of the University of Pennsylvania and its medical school, Brussel served a psychiatric residency during the 1930s on Long Island before he became chief of the Army’s neuropsychiatric service at Fort Dix, New Jersey. He then went to New York to take charge of the Army’s mentally ill criminals. During the Korean war, he served another military stint, returning to Manhattan where he would eventually become assistant commissioner for the Department of Mental Hygiene. Along the way, he consulted on counter-espionage tactics for the FBI and CIA. When Gerold Frank, author of The Boston Strangler, penned a foreword to Brussel’s memoir, he described the psychiatrist as a “wiry, sharp-wit-

30 THE FORENSIC EXAMINER® Spring 2009

ted, no-nonsense super sleuth” and likened him to Sherlock Holmes, with a “loud voice” and “strong opinions.” By this time, Brussel had already published half a dozen books, including a crime mystery and something akin to the idiot’s guide to psychiatry. Because Frank was writing a definitive book about the Boston spree, he was interested in Brussel’s opinion of the type of killer or killers who had committed the series of brutal stranglings. The first victim, on June 14, 1962, was Anna Slesers, age 55, found in her home with the cord from her bathrobe wrapped around her neck. She had been sexually assaulted. Two weeks later, 68-year-old Nina Nichols was strangled with two nylon stockings, the ends of which were tied in a bow. On the same day, Helen Blake, 65, met a similar death. Soon, two more elderly women were strangled in their homes. Then the assault pattern shifted to young women, killed in their apartments: Sophie Clark, 20, an African-American student at the Carnegie Institute of Medical Technology, and Patricia Bissette, 23, who had resided near Anna Slesers and Sophie Clark. Four months after Bissette, 68-year-old Mary Brown was found beaten, strangled and raped. But then came graduate student Beverly Samans. Boston was in a turmoil. Massachusetts Attorney General Edward Brooke set up a “Strangler Bureau” to collect, organize, and assimilate more than 37,000 documents. Hundreds of suspects were fingerprinted and more than 3 dozen given lie-detector tests. Every known sex offender was tracked down and patient leaves from mental institutions were checked, but the police were so stymied they resorted to consulting a nightclub psychic. On September 8, Evelyn Corbin, a 58-year-old divorcee, was strangled with two nylon stockings 2 months before a younger woman, Joann Graff, was raped and murdered in her apartment. Two brown nylon stockings and a black leotard were tied in an elaborate bow around her neck. The final victim was 19-year-old Mary Sullivan, murdered in an apartment into which she had recently moved. The killer had thrust a broomstick handle into her vagina and propped a card against her foot that said, “Happy New Year.” Several psychiatrists, including Dr. Brussel, were consulted. Given the diverse victimology, quite a few of these professionals believed there was more than one killer, but Brussel insisted that one man had committed all the crimes. To explain the shifting patterns, he suggested a series of life upheavals. “What has happened to him, in two words,” Brussel recalled saying, “is instant maturity. In this 2-year period, he has suddenly grown, psychosexually, from infancy to puberty to manhood.” That is, the Strangler had struck out at his mother, symbolized by the elderly women. Once he came to terms with his Oedipal Complex, he was able to sexually respond to younger women, as evidenced by semen www.acfei.com

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at those scenes. But he was still angry, so he continued to kill. “He had to commit these murders to achieve his growth. It was the only way to solve his problems, find himself sexually, and to become a grown man among men.” However, Brussel did not explain why the offender had killed two older women in the midst of his attacks on the younger women. He did believe that, with the overthe-top sexual treatment of Mary Sullivan, the killer was finished—even triumphant. He had been cured of his aberrations. And the murders did appear to stop. On November 5, 1964, Albert DeSalvo was arrested for a series of rapes. He soon confessed to being the Boston Strangler, and his attorney F. Lee Bailey worked out a deal that would send him to trial for only his sexual offenses, but including details from the murders to support an insanity defense. Brussel was proud to have been among the few who “knew” that the murders were the work of a single perpetrator. To his surprise, Bailey invited him to join the defense team, which gave Brussel the opportunity to interview DeSalvo. He conducted two long sessions, whereupon he learned something that contradicted his theory. DeSalvo had

never been impotent. Quite the opposite. He’d been sexually insatiable and claimed to have committed more than 1,000 rapes. He certainly had dozens on his record. Nevertheless, Brussel believed they could prove that DeSalvo was mentally ill and unable to control himself during the commission of each crime. He readily agreed to serve as an expert witness, hoping to get treatment for DeSalvo in a psychiatric institution rather than incarceration. Yet, Brussel conducted only two interviews with the notorious defendant and undertook no standardized assessment; he appears to have accepted whatever DeSalvo told him. Despite his optimism, DeSalvo was convicted and sent to prison for life. Apparently, the jury was not as easily swayed. It remains unknown whether physical evidence would have corroborated DeSalvo’s confession (for which he believed he would be paid a substantial reward), and he would eventually recant, putting into doubt not only that he was the Strangler but also that a single perpetrator had committed all the murders. (A recent exhumation of the final victim, Mary Sullivan, cleared DeSalvo of her murder with a DNA analysis, and this finding raised doubts about the rest of his confession.)

CMI

In retrospect, with more now known about the motives and behavior of predatory serial killers, it seems naïve to theorize that murdering older women would “resolve” a predator’s “mother issues” and “graduate” him to younger women. Brussel had also concluded that with Mary Sullivan the Strangler was finished. This prediction, too, is undermined by probability—Brussel’s own favorite tool. Crime does not cure killers, and serial murderers rarely just stop, especially when their crimes have grown more frequent and brutal. Even if Brussel were correct that DeSalvo was the killer, DeSalvo’s own sexual history defies any notion that he could so decisively control his criminal acts.

The Legacy of the Hunch “A psychiatrist’s dominant characteristic,” Brussel writes, “is his curiosity. He wonders about people.” Whenever asked by reporters what proportion of his assessments was based in science, he would tell them he always began with science, but then intuition and imagination would take over. Even so, he’d check his hunches against research data, and he trusted the law of averages. Mostly, he used mental immersion. “When you think about an un-

CERTIFIED MEDICAL INVESTIGATOR , CMI PROGRAM Elite investigations are united by the company they keep. Certification makes connections and advances the profession. Become a Certified Medical Investigator®, CMI today! Levels I—IV available online. Level V available in person. www.acfei.com • (800) 592-1399 32 THE FORENSIC EXAMINER® Spring 2009

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known criminal long enough, when you’ve assembled all the known facts about him and poked at them and stirred them about in your mind, you begin to see the man.” These words impressed someone at the FBI: Special Agent Howard Teten read Brussel’s Casebook and knew he had to learn more. With rising murder rates during the 1950s and 1960s, the FBI had received expanded jurisdiction, especially for serial crimes. At the FBI Academy, a handful of agents were teaching ideas from psychology and sociology—disciplines routinely snubbed by law enforcement. Teten was among them, with his course, “Applied Criminology,” and he had developed a method of behavioral analysis that he’d tested successfully on alreadysolved cases. Brussel’s ideas seemed to offer another layer. In 1973, Teten met Brussel, now retired, and they struck up an association. Over the course of that year, Teten learned Brussel’s method for analyzing unknown offenders from behavioral manifestations (“psychological impressions”) at a crime scene. He thought Brussel’s approach offered more detail from psychological analysis, but he believed his own ensured fewer errors. He was also uninterested

in Freudian explanations. Teten blended the two methodologies, developing criminal profiling for the fledgling Behavioral Science Unit (now the Behavioral Analysis Unit). Brussel’s unique tool was now in the hands of an agency that could “spread the wealth.” In 1982, the father of criminal profiling died at the age of 77. His application of psychiatry to the investigation of crime has earned him recognition as a true pathfinder.

New American Library. Gladwell, M. (2007). “Dangerous Minds.” The New Yorker. November 12. “James A. Brussel, Criminologist, is Dead.” New York Times. October 23, 1982. Jeffers, H. P. (1991). Who killed precious? New York: Dell. Ewing, C and J. T. McCann. (2006). Minds on trial. New York: Oxford University Press. Thorwald, J. ( 1964). The century of the detective. New York: Harcourt, Brace & World. Wilson, C. (2007). Serial killer investigations. West Sussex: Summersdale. n

Sources

Brussel, J. (1968). Casebook of a forensic psychiatrist. New York: Dell. Foster, D. (2000). Author unknown. New York: Henry Holt. Frank, G. (1966). The Boston strangler. New York:

About the Author Katherine Ramsland, PhD, CMI-V, has published 34 books, including True Stories of CSI and Beating the Devil’s Game: A History of Forensic Science and Criminal Investigation. Dr. Ramsland is an associate professor of forensic psychology and the department chair at DeSales University in Pennsylvania, and has been a member of the American College of Forensic Examiners International since 1998.

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Spring 2009 THE FORENSIC EXAMINER® 33

“Abagnale’s lecture may be the best one-man show you will ever see.” —Tom Hanks

Frank Abagnale’s rare blend of knowledge and expertise began more than 40 years ago when he was known as one of the world’s most famous confidence men. This was depicted most graphically in his best-selling book, Catch Me If You Can, a film of which was also made, directed by Steven Spielberg and starring Leonardo DiCaprio and Tom Hanks. Mr. Abagnale has now been associated with the FBI for over 30 years. More than 14,000 financial institutions, corporations and law enforcement agencies use his fraud prevention programs. Make plans now to attend his featured presentation at the 2009 National Conference!

To Register: Call Toll-Free (800) 592-1399 or visit www.acfei.com

2009 NATIONAL CONFERENCE

FRANK ABAGNALE: ACFEI FEATURED SPEAKER IN LAS VEGAS! The American College of Forensic Examiners is proud to announce that Frank Abagnale will be the keynote speaker at this year’s National Conference in Las Vegas, Nevada. Frank W. Abagnale is one of the world’s most respected authorities on forgery, embezzlement, and secure documents. For over 30 years he has worked with, advised, and consulted with hundreds of financial institutions, corporations, and government agencies around the world. Mr. Abagnale’s rare blend of knowledge and expertise began more than 40 years ago when he was known as one of the world’s most famous confidence men. This was depicted most graphically in his best-selling book, Catch Me If You Can, a film of which was also made, directed by Steven Spielberg and starring Leonardo DiCaprio and Tom Hanks. Between the ages of 16 and 21, he successfully posed as an airline pilot, an attorney, a college professor, and a pediatrician. Additionally, he cashed $2.5 million in fraudulent checks in every state and 26 foreign countries. Apprehended by the French police when he was 21 years old, he served time in the French, Swedish, and U.S. prison systems. After 5 years he was released on the condition that he would help the federal government, without remuneration, by teaching and assisting federal law enforcement agencies. Mr. Abagnale has now been associated with the FBI for over 30 years. More than 14,000 financial institutions, corporations, and law enforcement agencies use his fraud prevention programs. In 1998, he was selected as a distinguished member of “Pinnacle 400” by CNN Financial News—a select group of 400 people chosen on the basis of great accomplishment and success in their fields. In 2004, Mr. Abagnale was selected as the spokesperson for the National Association of Insurance Commissioners (NAIC) and the National Cyber Security Alliance (NCSA). He has also written numerous articles and books including The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life. For more information on ACFEI’s National Conference or to register, please contact ACFEI Member Services at (800) 592-1399.

“Abagnale’s lecture may be the best one-man show you will ever see.” —Tom Hanks

Accomplishments (Information retrieved from www.abagnale.com) • Standard

Register Company—since the early 1980s worked with and developed security features used on car titles, birth certificates, doctors’ prescription pads, negotiable instruments, packaging, and luxury items. • Novell—helped develop identity management software used by thousands of corporations, governments, and financial institutions. • Affinion Group—helped develop PrivacyGuard, a credit monitoring service now used by over 6 million Americans, as well as in Canada and the United Kingdom. • ADP—designed their current payroll check issued more than 800 million times a year for the payrolls of thousands of corporations. • First Data Corp (FDC)—designed the Integrated Payment Systems (IPS) Check, which is currently the official bank check of over 3,000 financial institutions. • Safechecks, Inc.—designed the SuperCheck and SuperBusiness Check considered to be the most secure checks in the world and used by thousands of municipalities, mortgage companies, title and escrow offices, and corporations. • Appleton Papers—designed the Frank W. Abagnale signature watermark paper, one of the most secure papers in the world with numerous security features built into the paper stock and distributed exclusively by Standard Register Company, USA. • Audemars Piguet—designed the anti-counterfeiting technology incorporated in one of the world’s most luxurious watches.

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• Leigh-Mardon (Australia)—one of the world’s most sophisticated secure document printers and manufacturer of credit cards and smart cards. Helped design the Australian passport, Australian postal money order, and numerous official international bank checks. • The 41st Parameter—partnered with and helped develop ImageMask— software that digitally blocks information on checks and documents from being seen online. This technology is used by some of the nation’s largest banks. • Staples, Inc.—partnered with the world’s largest office supply store bringing security products and solutions to their consumer and business customers. • Sanford uni-ball—helped develop the uni-ball 207 writing instrument. The only pen in the world that cannot be altered by chemicals or solvents. Over 20 million sold annually in the United States alone. • In the past 31 years Mr. Abagnale has worked with 65% of the Fortune 500 Companies in America. • Author of three books on white collar crime and identity theft—The Art of the Steal, The Real U Guide to Identity Theft, and Stealing Your Life. • Designed SequrZ secure number font used by thousands of corporations, government agencies and financial institutions to secure the written and dollar amounts on negotiable instruments.

Spring 2009 THE FORENSIC EXAMINER® 35

2009 NATIONAL CONFERENCE

The 2009 National Conference The 2009 ACFEI National Conference will be held October 14–16, along with the American Board for Certification in Homeland Security (ABCHS), American Psychotherapy Association (APA), and the American Association of Integrative Medicine (AAIM) national conferences. Registration with ACFEI, ABCHS, APA, or AAIM grants full access to the sessions of all three associations (unless otherwise noted). The complete presentation schedule is now available online, and conference attendees will be able to choose from a variety of education sessions designed to help advance their career and knowledge.

Visit www.acfei.com to view the complete presentation schedule! Be sure to look for additional information on the National Conference in the Summer issue.

Schedule-at-a-Glance Wednesday, October 14 Registration and Exhibitors................................................12:00pm-8:00pm CHS Pre-Conference Session...............................................3:00pm-5:00pm Keynote Speaker: John Bridges, III, FACFEI, DABCHS, CHS-V Welcome Reception............................................................5:00pm-7:00pm Thursday, October 15 Exhibit Hall Opens/Continental Breakfast..........................................7:00am General Session.................................................................8:00am-9:00am Catch Me if You Can, Presenter: Frank Abagnale Morning Break...................................................................9:00am-9:30am Breakout Session..............................................................9:30am-11:30am The Art of the Steal, Presenter: Frank Abagnale Lunch on Own..................................................................11:30am-1:00pm Breakout Sessions...............................................................1:00pm-4:45pm Annual Banquet.................................................................5:30pm-7:30pm Keynote Speaker: Peter S. Probst Friday, October 16 Exhibit Hall Opens/Continental Breakfast..........................................7:00am Breakout Sessions.............................................................8:00am-11:45am CHS Working Luncheon (Additional Registration Required)....11:30am-1:00pm Keynote Speaker: Steven G. King, Deputy Director, Infrastructure Collection Division, US Department of Homeland Security Lunch on Own.................................................................11:45am-1:15pm Breakout Sessions..............................................................1:30pm-4:45pm

36 THE FORENSIC EXAMINER® Spring 2009

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Hotel Information The 2009 National Conference will be held at the Rio All-Suite Hotel. If any casino hotel embodies the rhythm and spirit of Las Vegas, it is the Rio All-Suite Hotel & Casino, where the atmosphere pulses with activity, color, and uninhibited excitement. Get swept up in the Rio’s vibrant backdrop: every room a suite, every turn a new adventure, every need fulfilled. A special discounted group rate has been established for conference attendees. For room reservations, call (888) 746-6955, choose option #1 to connect to Suite Reservations, and reference the group code SRACFE. Rooms are limited, so call today. The cut-off date to receive the group rate is Friday, September 11, 2009.

Exhibitor Opportunities Exhibiting at the 2009 National Conference is a great way to get your company noticed and to introduce your product or service to a wide variety of top professionals. Sponsorships are also available and are a great way to direct attendees to your exhibit booth. Exhibitor space is limited, so reserve your spot today. For additional information or to register, contact the Conference Department at 1-800-423-9737, ext. 168. Conference Exhibitor: $450 • 8’ x 10’ Exhibit Booth • Company name in the conference program • Opportunity to showcase your product on the vendor stage Booth Bingo: $200 • Your company logo will be placed on the Booth Bingo Card given to all attendees. • Attendees must visit all booths featured on the Booth Bingo Card in order to be eligible to win prizes. • A limited number of sponsoring exhibitors will be featured. Literature Table: $100 • If you are unable to exhibit, take advantage of our literature table. • We will place your brochures on the literature table in the exhibit hall. • This is a great way to introduce attendees to your product or service.

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Spring 2009 THE FORENSIC EXAMINER® 37

2009 National Conference Registration Form October 14-16, 2009 • Las Vegas, NV • Rio All-Suite Hotel Members who wish to stay at the Rio All-Suite Hotel will receive a special group rate of $165/night. For room reservations call (888) 746-6955. Mention the discount code ACFEI.

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Please check the primary association with which you wish to be affiliated with (check only one). Registration with ACFEI, CHS, APA, AAIM, or ACC grants you full access to the sessions of ALL five associations. However, due to the nature of the material covered some CHS sessions may be limited to CHS membership only. You will only receive the complimentary conference merchandise for the association with which you register.

❑ The American College of Forensic Examiners (ACFEI) ❑ The American Board for Certification in Homeland Security (ABCHS) ❑ The American Psychotherapy Association (APA) ❑ The American Association of Integrative Medicine (AAIM) ❑ The American College of Counselors (ACC) *Please circle the approriate registration rate.*

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Case Study By Bruce Gross, PhD, JD, MBA According to the United Nations, 80% of children who die from violence are under age 6, and of those, 40% are infants (Child Welfare Information Gateway [CWIG], 2006; Pinheiro, 2006). The most common cause of violent death for this age group is head injury, followed by blunt force trauma to the child’s body. Although there are many possible sources of traumatic head injury, in 1971 it was suggested that shaking could cause subdural hematomas (and associated cerebral edema), one of the most common types of intracranial injuries seen in deceased infants (Guthkelch, 1971). It was purported that shaking was the mechanism responsible for shearing or tearing the cortical bridging or connecting veins in the brain, which, in turn, caused hematomas. One year later, in 1972, pediatric radiologist John Caffey coined the term “whiplash shaken baby syndrome” to describe a cluster of physical symptoms found in severely traumatized infants. These signs or symptoms included brain injury (i.e., subdural and/or subarachnoid hemorrhages), retinal hemorrhages, and little to no external evidence of head trauma (Caffey, 1972a). Caffey con-

cluded that this type of traumatic intracranial bleeding, similar to that seen in “whiplash” victims, was inflicted by shaking (Caffey, 1972a, 1972b, 1974). Eventually this cluster, or triad, of clinical findings in infants and children came to be known as either “shaken baby triad” or “shaken baby syndrome” (SBS). When additional symptoms consistent with the infant’s head striking a solid or semi-solid surface (such as cranial fractures) were present, the condition was referred to as “shaken-impact” or “shaken-slam.”

Characteristics of the Crime Shaken baby syndrome is thought to be caused by an adult grasping an infant by the torso or arms (pressed against the sides) and shaking the child back and forth in quick, jerky motions (British Broadcasting Corporation [BBC], 2008; Emerson, Pieramici, Stoessel, Berreen, & Gariano, 2001; Caffey, 1974). In the process, some (but not all) shaking victims might be thrown onto a bed, a couch, or the floor. Infant brains are especially vulnerable to this type of injury as their incomplete development results in a larger space between the brain and the skull in which greater acceleration can be achieved. Despite the brain’s relatively small

size, an infant’s head represents one-fourth to one-third of his or her body weight with high water content. Supported by a weak neck, when the infant is shaken, the head essentially “flops” or “flaps” against the chest and back. This action produces closed head trauma, which is the characteristic and universal symptom of SBS. In the most severe cases of shaking, the victim will either instantly or rapidly fall into unconsciousness or a coma, followed by death. In less severe cases, the victim may manifest a number of physical and behavioral signs of head trauma. Irritability is one of the most common symptoms associated with less severe shaking, especially when seen concomitantly with drowsiness and/or vomiting (that may be projectile) without diarrhea. The eyes of shaking victims may appear “glassy” or may show no or impaired tracking. Either or both pupils may be fixed or show evidence of blood pooling. In virtually all cases of mild to moderate shaking there is some degree of lethargy. Victims of shaking may show reduced or no appetite and may have difficulty with sucking or swallowing which, in turn, may result in choking. The skin tone of some victims may appear pale or bluish, breathing

shaken Convicted, But Beyond a Reasonable Doubt? 40 THE FORENSIC EXAMINER® Spring 2009

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may be irregular, and the child may be unable to smile or vocalize. The infant or child may show decreased muscle tone, swelling of the head, an inability to lift or turn the head, or bizarre positioning of the head in relation to the body. As deterioration advances, the child may suffer from altered consciousness, convulsions, or seizures. In addition to the above, there are numerous indicators of shaking that may not be readily apparent. These include abnormally low blood pressure, mild to moderate anemia, abdominal and/or chest injuries, soft tissue swelling (resulting from underlying fractures), and a swollen or tense fontanel (resulting from cerebral edema). In addition to possible impact-induced skull fractures, the victim may suffer from a number of other fractured bones, including the collarbone, any of the long bones, and, most telling, the back of the ribs (Minns & Busuttil, 2004; Glass, Norton, Mitre, & Kang, 2002). Despite the number of signs and symptoms of SBS, it has been suggested that in approximately one-third of those infants seen by private physicians or in emergency rooms, abuse-induced head trauma is completely missed or misdiagnosed upon first presentation (Kemp, Stoodley, Cobley, Coles, &

Kemp, 2003; Jenny, Hymel, Ritzen, Reinert, & Hay, 1999; Ewing-Cobbs et al., 1998; Alexander, Crabbe, Sato, Smith, & Bennett, 1990). The difficulty in accurately diagnosing SBS may be attributed to several factors. In addition to the fact that there may be no external evidence of injury, the symptoms of SBS and their onset vary from case to case, with no accepted explanation for this variety. Even with severe shaking, while the symptoms may appear immediately, they may not reach their peak until approximately 6 hours later. With sublethal shaking, symptoms such as lethargy, irritability, poor feeding or appetite, and vomiting may wax and wane over the course of days or weeks. Many of the more readily identified but nonspecific signs and symptoms of shaking may be attributed to and, in fact, caused by a number of other conditions. Frequently, SBS is misdiagnosed as a persistent viral infection (including meningitis) or flu, dehydration, vitamin C or K deficiency, feeding dysfunction, colic, failure-to-thrive, or sudden-infant-death syndrome (Jenny et al., 1999). When victims are placed on life support before a thorough evaluation can be completed, at autopsy the symptoms caused by SBS may be attributed to the effects of ar-

“infant brains are especially vulnerable to this type of injury as their incomplete development results in a larger space between the brain and the skull ...”

Syndrome (800) 592-1399

Spring 2009 THE FORENSIC EXAMINER® 41

s SHAKENBABY KRT PHOTOGRAPH BY BOB JACKSON/COLORADO SPRINGS GAZETTE (KRT105- August 3) Three-yearold Steven interacts with physical therapist Sara Small, who comes to the Washburn home to work with him. Steven suffers from Shaken Baby Syndrome. (GT) PL KD 1999 (Sq) (lde)

tificial respiration on the brain. Obtaining an accurate history in the process of diagnosing SBS is difficult at best, especially as there are generally no witnesses to shaking. If the perpetrator takes the child for medical attention, for a number of reasons he or she may be unwilling or unlikely to provide a truthful description of what preceded the onset of symptoms, further complicating accurate diagnosis.

The Context of SBS In those cases in which victims of shaking do present with external trauma, the injuries most typically include bruising to the face, arms, stomach, and/ or back, and are highly indicative of other forms of physical abuse. Shaken baby syndrome seldom occurs in isolation and has been long known to occur in the context of repeated physical abuse, with evidence of prior abuse and shaking often found upon examination (Ewing-Cobbs et al., 1998; Alexander et al., 1990; Caffey, 1972a, 1972b). Shaking tends to escalate over time, becoming increasingly violent, prolonged, and frequent. It has been estimated that in approximately 33–40% of all cases of SBS, there is evidence of previous head trauma due to shaking, such as old or resolving intracranial hemorrhages (Alexander et al.). Among physically abused infants and children, head trauma is not only the leading cause of death, but also of long-term disability 42 THE FORENSIC EXAMINER® Spring 2009

(Pinheiro, 2006; Reece & Sege, 2000; Duhaime et al., 1992; Billmire & Myers, 1985). In turn, the most common cause of head trauma among abused infants is believed to be shaking. Between 50–80% of the murders of children aged 10 and under are perpetrated by family members (CWIG, 2006; Pinheiro, 2006). Consistent with this, early researchers noted that SBS was typically inflicted by exceptionally stressed parents or caretakers (Ewing-Cobbs et al., 1998; Alexander et al., 1990; Caffey, 1972a, 1972b). Fathers or fatherfigures, most in their early 20s with low socio-economic status, are the most frequent perpetrators of shaken baby syndrome, responsible for anywhere between 65–90% of all cases (Pinheiro; Children’s Trust Fund [CTF], 2004). A female caretaker or babysitter is the next most common offender, followed by the victim’s mother. In general, infant shaking is associated with the parent or caretaker suffering from biological, social, environmental, and/or financial stress, which increases the risk of impulsive and violent behavior. Adults with past or present problems with substance abuse or domestic violence may be at even greater risk of perpetrating this type of child abuse. The most frequent reason given by offenders for shaking an infant is the frustration that results from caring for an inconsolably crying or incessantly fussy child (Barr, 2007; Pinheiro, 2006; Caffey, 1972). However, shaking may also be triggered by the infant’s excessive coughing or toileting problems, as well as by caretaker sleep deprivation or jealousy of the child by the abusing adult. Although SBS has been reported in cases of children up to age 5, it is most commonly seen in children under the age of 2 years (Keenan et al., 2003; United States Advisory Board on Child Abuse and Neglect [USABCAN], 1995). In the majority of cases, the infant is between 3–8 months. For a number of reasons, including mis- or under-diagnosis, there are no reliable figures regarding the incidence of SBS (Wirtz & Trent, 2008). One difficulty in gathering reliable statistics is the notable variation in the symptom constellation used to define SBS between hospitals. Despite this, the National Center on Shaken Baby Syndrome has reported there are between 600 and 1,400 cases of SBS seen in U.S. hospitals every year (For more information, see: www.dontshake.org/sbs.) Using research conducted by the British Broadcasting Corporation (BBC), the figure rises to between 1,200 and 1,600 in the United States per year (BBC, 2008).

Diagnosing SBS As identified in the early 1970s, SBS is caused by violent shaking of an infant or young child, causing the brain to rebound against the skull. It is the force of this rebounding that results in the characteristic tearing, bruising, bleeding, and swelling www.acfei.com

shaken baby syndrome Numerous accounts of child abuse have occurred across the country in recent years. When the child is too young to discount the parent’s story and the evidence points to suspect causes, a diagnosis of Shaken Baby Syndrome (SBS) can be made easily. In some cases, the cause of death leaves more questions than answers, although injuries of the deceased can still be consistent with symptoms of SBS. A recent case in Aurora, Illinois, involved a 5-year-old girl whose cause of death involved multiple injuries, blunt trauma, and child abuse, according to the county medical examiner (Hanley, 2009). The infant was in the care of a relative at the time of the incident, and it is believed she died from being shaken or thrown. Two other children were subsequently removed from the home in the meantime. A 2007 case involving a 38-year-old woman charged with shaking her 9-month-old daughter to death has been granted extended time for evaluation. Jennifer Ward, a former valedictorian of her high school class was charged with the crime after her daughter died from abuse head trauma on November 21, 2007. Ward, a former drug addict, has continued to plead innocent to the murder charge. Ward’s lawyer was granted the extension in order for experts to evaluate the pathology and radiology reports of the baby (Kapsourakis, 2009). Many caregivers are unaware of the implications and dangerous consequences that result after just a few seconds of shaking. Authorities in Norwood, Massachusetts, are searching for a babysitter thought to have shaken and fractured the skull of a 4-month-old baby boy in December 2008 (Richinick, 2009). The babysitter, Sueli Soares, called police after the child became unresponsive, claiming that he had choked on his formula. The child survived the accident and is now home with his family. It has yet to be determined whether the child sustained permanent damage. These cases provide only a sampling of the Shaken Baby Syndrome deaths that occur each year. According to an article in the Daily Business News (2009), between 1,200 and 1,400 children are injured or killed in the United States each year due to shaking-related accidents. The National Center on Shaken Baby Syndrome estimates that 300 babies a year die in the United States due to a shakingrelated injury (as cited in Hanley, 2009). SBS is the leading cause of death in abusive head trauma cases, and it can also cause brain damage and learning disabilities in children that survive (Daily Business News). North Carolina has recently launched a new outreach program to better equip parents with knowledge of how babies cry. The families of each newborn will be provided with a DVD explaining how and why babies cry and will offer tips on calming parental frustrations. Experts hope that this educational material will allow parents to better cope with the stresses of new parenthood and lessen the likelihood of an unexpected shaking. The program, Period of Purple Crying, is funded the Duke Endowment, the CDC, and the Doris Duke Foundation (Daily Business News). Another prevention program is being implemented in Connecticut. The Connecticut Children’s Trust Fund has started intervention programs throughout select hospitals throughout the state in order to educate new parents. According to Executive Director Karen Foley-Schain, “It takes less than three seconds of shaking to kill or disable a child for life” (Megan, 2009). The program has been developed over the past 3 or 4 years, and a similar prevention program in New York reduced the prevalence of SBS by 47 percent (Megan). (800) 592-1399

More information on Shaken Baby Syndrome can be found at the National Center on Shaken Baby Syndrome’s Web site: www. dontshake.org.

References

Hanley, M. (2009, January 14). Aurora baby died of child abuse. Beacon News. Retrieved January 14, 2009, from http://www.suburbanchicagonews.com/beaconnews/ news/1378958,AU14_Aurora-baby-died-of-child-abuse.article Kapsourakis, K. A. (2009, January 14). Lawyer wins extension in baby-shaking case. The Daily Item. Retrieved January 14, 2009, from http://www.thedailyitemoflynn. com/articles/2009/01/14/news/news07.txt Daily Business News. (2009, January 5). Launch marks inception of national Shaken Baby Syndrome prevention program at Rex. Retrieved January 14, 2009, from http://healthcare.dbusinessnews.com/shownews. php?type_news=latest&newsid=173685 Megan, K. (2009, January 4). Programs aim to decrease shaken-baby syndrome. Nashua Telegraph. Retrieved January 14, 2009, from http://www.nashuatelegraph. com/apps/pbcs.dll/article?AID=/20090104/HEALTH/301049967 Richinick, M. (2009, January 14). Police hunting for sitter charged in shaken baby case. The Boston Globe. Retrieved January 14, 2009, from http://www.boston.com/ news/local/breaking_news/2009/01/police_hunting.html

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s SHAKENBABY KRT PHOTOGRAPH BY BOB JACKSON/COLORADO SPRINGS GAZETTE (KRT106- August 3) Occupational therapist Sandra Slizewski and physical therapist Sara Small work with 3-year-old Steven in the Washburn’s Black Forest home. (GT) PL KD 1999 (Vert) (lde)

s SHAKENBABY KRT PHOTOGRAPH BY BOB JACKSON/COLORADO SPRINGS GAZETTE (KRT9- August 3) Tom Washburn gives his adopted son, Steven, a drink of water. Three-year-old Steven drinks and is fed through a tube in his stomach because the Shaken Baby Syndrome-related injuries make it impossible for him to do so normally. His biological family blamed his injuries on a ride in a vehicle over rough roads. No one was held accountable in his case. (GT) AP PL KD 1999 (Horiz) (lde) (Additional photos available on KRT Direct, KRT/PressLink or upon request)

of the brain. Although significant symptoms may develop immediately, while still in the care of the perpetrator, the offender may not seek immediate medical intervention, convincing him or herself the child is “sleeping” (when actually unconscious or comatose) or “needing a nap” (when lethargic and irritable) or suffering from a minor ailment (when vomiting). Many of the clinical signs of SBS are sufficiently problematic to prompt a parent or caretaker to seek medical attention. Unfortunately, that may not occur until days (or even weeks) after the precipitating trauma. By the mid-1970s, computed tomography (CT) was being used in the diagnosis of SBS, and by the mid-1980s, magnetic resonance imaging (MRI) was added adjunctively in order to better refine the diagnosis (Alexander, Schor & Smith, 1986). Although MRI is better able to detect certain brain lesions, it cannot be used if the child is on life support (Sato et al., 1989). When combined, CT and MRI are extremely useful for determining the age of identified injuries, as well as any history of repeated trauma or victimization. Imaging should be repeated in 1–2 weeks as it takes approximately 7–10 days for the healing process to become radiologically visible in new fractures (American Academy of Pediatrics, Section on Radiology [AAPSR], 2000). Since the early 1970s, after Caffey identified “whiplash shaken baby syndrome,” SBS has been diagnosed based on the co-occurrence of subdural hematomas, retinal hemorrhages, and the absence of external injury consistent with a trauma sufficient to induce the first two symptoms (such as a motor vehicle accident or a fall from an appreciable height). However, the diagnosis has been made based solely on the presence of subarachnoid hemorrhages with associated cerebral edema (American Academy of Pediatrics, Committee on Child Abuse and Neglect [AAPCCAN], 2001). Shaking-induced intracranial bleeding is typically most prominent in the inter-hemispheric fissure, although it can be found virtually anywhere in the brain. When retinal hemorrhages are present, they may be easily missed. Accurate diagnosis requires dilation of the pupils, the use of specialized equipment, and examination by a pediatric ophthalmologist (Levin, 1990). Retinal hemorrhages may involve multiple layers of the retina and vary widely between cases in terms of nature, size, severity, number, and location. Those seen in infants who were known to have been shaken resolved anywhere from 1 week to several months, and in some persisted for years (Emerson et al., 2001). In diagnosing SBS, the infant or toddler’s history must be absent any underlying condition(s) known to produce subdural hematomas and retinal hemorrhages. Conditions or illnesses that must be ruled out include hydrocephalus, coagulopathies, or metabolic, inflammatory, thrombotic, or seizure

44 THE FORENSIC EXAMINER® Spring 2009

disorders, amongst others (Barnes, 2002; Rutty, Smith & Malia, 1999). Not only do these conditions result in the symptoms characteristic of SBS, they also increase the child’s vulnerability to damage from whiplash-type motion. Similarly, antibiotics, Tylenol, and vaccines have been implicated in infant vulnerability to the effects of shaking.

Assumptions Surrounding the Diagnosing of SBS Despite how straightforward the diagnosis appears to be, there is a great deal of controversy surrounding the triad of symptoms that are considered indicative of SBS. One area of controversy revolves around the nature and course of subdural hematomas, which are believed to be caused by either a disease process or trauma. When an underlying disease has been ruled out, the diagnostician is left with trauma as the causal factor. Yet, minor brain hemorrhages have been found on the MRIs of 26% of “normal” babies, especially in those delivered vaginally (Looney et al., 2007). Debate also exists as to whether all subdural hematomas are immediately symptomatic and resultant in morphological change. It has been shown that relatively mild structural damage can result in comparatively immediate death, while infants with major damage can survive indefinitely (Geddes, Hackshaw, Vowles, Nickols, & Whitwell, 2001; Geddes, Vowles, et al., 2001). Furthermore, shaking victims have shown no evidence of cognitive impairment for varying lengths of time before ultimately succumbing to their injuries (Denton & Mileusnic, 2003). Another area of controversy surrounds retinal hemorrhages, which are typically considered the product of non-accidental trauma and pathognomonic of SBS, especially when seen in conjunction with perimacular retinal folds (Emerson et al., 2001; Office of Juvenile Justice and Delinquency Prevention [OJJDP], 1996). Yet, a review of the objective scientific research conducted between 1966 and 2003 does not support this conclusion (Lantz, Sinal, Stanton, & Weaver, 2004). With few exceptions, the existing research is methodologically flawed and, as a whole, conflicting. While retinal hemorrhages may eventually be proven to be diagnostic of SBS, to date, there is insufficient evidence to support unquestioning acceptance of this claim. There is no agreement as to what presentation of retinal hemorrhages (in terms of number, size, location, etc.) points unequivocally to SBS. Bleeding in the eye is more common than thought and not always non-accidental (Lantz et al., 2004). Research conducted between 2004 and 2006 on approximately 1,500 corpses found retinal hemorrhages in approximately 1 out of every 6 bodies (BBC, 2008). For example, they have been shown to occur at childbirth, with coagulation disorders; www.acfei.com

in osteogenesis imperfecta, as a result of near or fatal suffocation, straining, repeated, and forceful sneezing; and very occasionally as a byproduct of resuscitation efforts (Goetting & Sowa, 1990). Approximately 6% of children who were abused, but not by shaking, developed ocular findings, including retinal hemorrhages (Levin, 1990, 1998). Because retinal hemorrhages are not always present in confirmed cases of SBS and because their etiology can be other than trauma, they should perhaps not be considered either necessary or sufficient for the diagnosis of SBS. Controversy also surrounds the diagnostic significance and certainty of the presence or absence of external injury. The diagnosis of SBS is based on the premise that shaking alone is sufficient to cause subdural hematomas and retinal hemorrhages in healthy infants. In addition, it assumes that the injuries (which, again, vary widely in severity and type, etc.) are caused by violent, intentional trauma. The prevailing notion is that the injuries “characteristic” of SBS are equivalent to those seen in a 35 mph automobile accident in which the infant victim was unrestrained, or a fall from a two-story building. Yet, research (including biomechanical analysis) has shown that, although fortunately not the norm, infants and toddlers can and do die from falls as short as 1–4 feet (Omaya, Goldsmith, & Thibault, 2002; Plunkett, 2001). It is generally accepted that bouncing an infant or toddler on one’s knees, tossing a toddler into the air (and catching them), and rough play will not cause SBS (CTF, 2004). Yet, there is not uniform consensus as to what force is minimally necessary to cause subdural and retinal bleeding from shaking. Although some believe that shaking alone is sufficient to cause the type of injuries seen in SBS, others contend that there must also be impact (BBC, 2008; Bandak, 2005; Plunkett, 2001). According to some, impact on a hard surface is necessary, while others believe a soft-surface impact is sufficient. Biomechanical research using infant crash test dummies and corpses has cast doubt on several theories associated with SBS (BBC, 2008; Bandak, 2005; Plunkett, 2001). The levels of force and speed necessary to achieve SBS-type trauma by shaking alone would result in significant injury to the cervical spine, which is seldom seen in SBS cases. In addition, biomechanical research has demonstrated that in simulated one-and-a-half month old dummies, the damage caused by aggressive shaking is statistically similar (800) 592-1399

to that caused by a 1-foot fall onto concrete covered by carpet. A fall from 3 feet on the same surface produces a force that is 40 times greater than that produced at 1 foot, and it is far greater than that produced by vigorous shaking by a human. In brief, biomechanical research suggests that basing the diagnosis of SBS only on the presence of the triad of symptoms lacks scientific certainty.

The Outcome and Aftermath of Shaking Anywhere from 15–38% of shaking victims die as a result of their traumatic injury (Bennett, Grenier, & Medaglia, 2008; American Academy of Pediatrics, Committee on Child Abuse and Neglect [AAPCCAN], 2001). Approximately 60% of those infants who were comatose upon arrival at an emergency room died or suffered profound and permanent impairments, such as mental retardation or quadriplegia. Longitudinal research conducted in Canada showed that 10 years after being diagnosed with SBS, 12% of those victimized were in a coma or vegetative state, 60% suffered a moderate or greater degree of permanent disability, and 85% required ongoing and lifelong multidisciplinary care (Bennett, Grenier, & Medaglia). Those infants and toddlers who survive shaking may be left with chronic changes in feeding or eating patterns, speech and motor impairments, hearing loss or deafness, and vision loss or blindness. In addition, they may suffer from myriad cognitive problems (including learning disabilities and any degree of mental retardation), developmental disabilities (including autism), and any number of self-care and behavioral problems. Possible long-term consequences of SBS also include seizures, cerebral palsy, paralysis, and permanent vegetative state. Only 7% of the subjects in the Canadian study were reported to be “normal” at the end of 10 years. The extent of impairment suffered by victims of SBS is influenced by several factors. For example, the older the child is at the time of the shaking-induced intracranial injury, the better the outcome. As noted above, those victims who arrive for medical care in a coma have a very poor prognosis, with a high rate of fatality. As with all head injuries, the sooner the child receives medical attention after the shaking, the better the outcome. Unfortunately, there may be significant delay due either to the denial or avoidance of the perpetrator or the misinterpretation of symptoms by the non-offending parent/caretaker.

Not only does SBS describe a constellation of (varying) symptoms but, more importantly, it implies or purports to identify their etiology—that is, non-accidental, criminal behavior. The co-occurrence of subdural hematomas and retinal hemorrhages in a child under the age of 6 years is taken as indicative of child abuse, and a report of such is filed if the injuries were not sustained in an automobile accident or a substantial fall. Based on the belief that symptoms of SBS are non-accidental and have an immediate onset, the adult with the victim at the determined time of onset is considered to be the perpetrator. Much of the literature connecting the triad of symptoms in SBS with shaking alone consists of case studies in which the alleged perpetrator “admitted” to shaking the given victim (Leestma, 2006). These comparatively limited number of confessions have been used as “proof ” that the triad is always and only caused by shaking. Aside from the body of literature surrounding the validity of confessions in the absence of eyewitnesses, a review of the body of research and scientific evidence (from 1966 to 1998) used to support the triadic theory of SBS reveals it is not as reliable as presumed (Donohoe, 2003). The use of SBS in criminal trials has been successfully challenged, both in the United States and the United Kingdom, although none of these cases are considered binding legal precedent (Gena, 2007; Dyer, 2005). In addition to the term “shaken baby syndrome” being barred on the grounds of possibly prejudicing the jury, SBS used as a causation of death has failed to pass the “Daubert” test.[See: Greenup Circuit Court Case No. 04-CR-205, Commonwealth of Kentucky Plaintiff vs. Order and Opinion re: Daubert Hearing (Christopher A. Davis, Defendant) concerning the issue of Shaken Baby Syndrome.] In its decision, the Court concluded that SBS is a “theory” (not scientific “proof ”) founded on “educated guessing” regarding the cause of injury or death. The Court disallowed either side to use SBS unless there is clear evidence of impact. Given the serious consequences faced by alleged perpetrators in SBS cases, it is clear that more research is needed to resolve the areas of contest surrounding the diagnosis. Until then, as suggested by Minns & Busuttil (2004), the term SBS should perhaps be replaced with “non-accidental head injury,” thereby avoiding the implication of causation. Spring 2009 THE FORENSIC EXAMINER® 45

References

Alexander, R., Crabbe, L., Sato, Y., Smith, W., & Bennett T. (1990). Serial abuse in children who are shaken. American Journal of Diseases of Children, 144(1), 58–60. Alexander, R. C., Schor, D. P., & Smith, W .L. (1986). Magnetic resonance imaging of intracranial injuries from child abuse. Journal of Pediatrics, 109(6), 975–979. American Academy of Pediatrics, Committee on Child Abuse and Neglect (AAPCCAN). (2001). Shaken baby syndrome: Rotational cranial injuries – technical report. Pediatrics, 108(1), 206–210. American Academy of Pediatrics, Section on Radiology (AAPSR). (2000). Diagnostic imaging of child abuse. Pediatrics, 105(6), 1345–1348. Bandak, F. (2005). Shaken baby syndrome: A biomechanics analysis of injury mechanisms. Forensic Science International, 151(1), 71–79. Barnes, P. D. (2002). Ethical issues in imaging nonaccidental injury: Child abuse. Topics in Magnetic Resonance Imaging, 13(2), 85–94. Barr, R. G. (2007). What is all that crying about? Bulletin of the Centre of Excellence for Early Childhood Development, 6(2), 1–6. Bennett, S., Grenier, D., & Medaglia, A. (2008). The Canadian paediatric surveillance program: A framework for the timely data collection on head injury secondary to suspected child maltreatment. American Journal of Preventative Medicine, 34(4): Suppl 1, S140–S142. Billmire, M. E., & Myers, P. A. (1985). Serious head injury in infants: Accident or abuse? Pediatrics, 75(2), 340–342. British Broadcasting Corporation (BBC). (2008). Panorama: Shaken babies. BBC One. Monday, 10 March 2008. Caffey, J. (1974). The whiplash shaken infant syndrome: Manual shaking by the extremities with whiplash-induced intracranial and intraocular bleeding, linked with residual permanent brain damage and mental retardation. Pediatrics, 54(4), 396–403. Caffey, J. (1972a). On the theory and practice of shaking infants. Its potential residual effects of permanent brain damage and mental retardation. American Journal of Diseases of Children, 124(2), 161–169. Caffey, J. (1972b). The parent-infant traumatic stress syndrome. American Journal of Roentgenology, 114(2), 218–229. Child Welfare Information Gateway (CWIG). (2006). Child abuse and neglect fatalities: Statistics and interventions. Washington, D.C.: U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau. Children’s Trust Fund (CTF). (2004). Never shake: An educator’s guide to the prevention of shaken baby syndrome. Jefferson City, MO: Children’s Trust Fund. Denton, S., & Mileusnic, D. (2003). Delayed sudden death in an infant following an accidental fall. American Journal of Forensic Medicine and Pathology, 24(4), 371–376. Donohoe, M. (2003). Evidence-based medicine and shaken baby syndrome. Part I: Literature review, 1966– 1998. American Journal of Forensic Medicine and Pathology, 24(3), 239–242. Duhaime, A. C., Alario, A. J., Lewander, W. J., Schut, L., Sutton, L. N., Seidl, T. S., et al. (1992). Head injury in very young children: Mechanisms, injury types, and ophthalmologic findings in 100 hospitalized patients younger than 2 years of age. Pediatrics, 90(2,1), 179–185.

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Dyer, C. (2005). Diagnosis of “shaken baby syndrome” still valid, appeal court rules. British Medical Journal, 331(7511), 253. Emerson, M. V., Pieramici, D. J., Stoessel, K. M., Berreen, J.P., & Gariano, R. F. (2001). Incidence and rate of disappearance of retinal hemorrhage in newborns. Ophthalmology, 108(1), 36–39. Ewing-Cobbs, L., Kramer, L., Prasad, M., Canales, D. N., Louis, P. T., Fletcher, J. M., et al. (1998). Neuroimaging, physical and developmental findings after inflicted and non-inflicted traumatic brain injury in young children. Pediatrics, 102(2), 300–307. Geddes, J. F., Hackshaw, A. K., Vowles, G. H., Nickols, C. D., & Whitwell, H. L. (2001). Neuropathology of inflicted head injury in children. II. Patterns of brain damage. Brain, 124(7), 1290–1298. Geddes, J. F., Vowles, G. H., Hackshaw, A. K., Nickols, C. D., Scott, I. S., & Whitwell, H. L. (2001). Neuropathology of inflicted head injury in children. II. Microscopic brain injury in infants. Brain, 124(7), 1299–1306. Gena, M. (2007). Shaken baby syndrome: Medical uncertainty casts doubt on convictions. Wisconsin Law Review, 701. Glass, R. B. F., Norton, K. I., Mitre, S. A., & Kang, E. (2002). Pediatric ribs: A spectrum of abnormalities. Radiographics, 22(1), 87–104. Goetting, M. G., & Sowa, B. (1990). Retinal hemorrhage after cardiopulmonary resuscitation in children: An etiologic reevaluation. Pediatrics, 85(4), 585–588. Guthkelch, A. N. (1971). Infantile subdural haematoma and its relationship to whiplash injury. British Medical Journal, 2(759), 430–431. Jenny, C., Hymel, K. P., Ritzen, A., Reinert, S. E., & Hay, T. C. (1999). Analysis of missed cases of abusive head trauma. Journal of the American Medical Association, 281(7), 621–626. Keenan, H. T, Runyan, D. K., Marshall, S. W, Nocera, M. A., Merten, D. F., & Sinal, S. H. (2003). A population-based study of inflicted traumatic brain injury in young children. Journal of the American Medical Association, 290(5), 621–626. Kemp, A. M., Stoodley, N., Cobley, C., Coles, L., & Kemp, K. W. (2003). Apnoea and brain swelling in non-accidental head injury. Archives of Disease in Childhood, 88, 472–476. Lantz, P. E., Sinal, S. H., Stanton, C. A., & Weaver, R. G. (2004). Perimacular retinal folds from childhood head trauma. British Medical Journal, 328(7442), 754–756. Leestma, J. E. (2006). “Shaken baby syndrome”: Do confessions by alleged perpetrators validate the concept? Journal of American Physicians and Surgeons, 11(1), 14–16. Levin, A. V. (1990). Ocular manifestations of child abuse. Ophthalmology Clinics of North America, 3, 249–264.

Levin, A. V. (1998). The ocular findings in child abuse. Focal Points: Clinical Modules for Ophthalmologists, 16(7), 1–14. Looney, C. B., Smith, J. K., Merck, L. H., Wolfe, H. M., Chescheir, N. C., Hamer, R. M., et al. (2007). Intracranial hemorrhage in asymptomatic neonates: Prevalence on MR images and relationship to obstetric and neonatal risk factors. Radiology, 242(2), 535–541. Minns, R. A., & Busuttil, A. (2004). Patterns of presentation of the shaken baby syndrome: Four types of inflicted brain injury predominate. British Medical Journal, 328(7442), 766. Office of Juvenile Justice and Delinquency Prevention (OJJDP). (1996). Recognizing when a child’s injury or illness is caused by abuse: Portable guides to investigating child abuse. (NCJ-160938). Washington, D.C.: U.S. Department of Justice, Office of Justice Programs. Omaya, A. K., Goldsmith, W., & Thibault, L. (2002). Biomechanics and neuropathology of adult and paediatric head injury. British Journal of Neurosurgery, 16(3), 220–242. Pinheiro, P. S. (2006). World Report on Violence against Children. Geneva, Switzerland: UN Secretary-General’s Study on Violence. Plunkett, J. (2001). Fatal pediatric head injuries caused by short-distance falls. American Journal of Forensic Medicine and Pathology, 22(1), 1–12. Reece, R. M., & Sege, R. (2000). Childhood head injuries: Accidental or inflicted? Archives of Pediatric and Adolescent Medicine, 154(1), 11–15. Rutty, G. N., Smith, C. M., & Malia, R. G. (1999). Late-form hemorrhagic disease of the newborn. American Journal of Forensic Medicine and Pathology, 20(1), 48–51. Sato, Y., Yuh, W. T., Smith, W. L, Alexander, R. C., Kao, S. C., & Ellerbroek, C. J. (1989). Head injury in child abuse: Evaluation with MR imaging. Radiology, 173(3), 653–657. United States Advisory Board on Child Abuse and Neglect (USABCAN). (1995). A nation’s shame: Fatal child abuse and neglect in the United States. (Report No. 5). Washington, D.C.: US Department of Health and Human Services. Wirtz, S. J., & Trent, R. B. (2008). Passive surveillance of shaken baby syndrome using hospital inpatient data. American Journal of Preventative Medicine, 34(4) (Suppl 1), S134–S139. n

About the Author Bruce Gross, PhD, JD, MBA, is a Fellow of the American College of Forensic Examiners and is an Executive Advisory Board member of the American Board of Forensic Examiners. Dr. Gross is also a Diplomate of the American Board of Forensic Examiners and the American Board of Psychological Specialties. He has been an ACFEI member since 1996 and is also a Fellow of the American Psychotherapy Association. www.acfei.com

The American Psychotherapy Association® (APA) is a membership society for psychotherapists of many different disciplines. APA’s purpose is to establish a cohesive national organization that advances the mental-health profession by elevating standards through education, basic and advanced training, and by offering credentials to ethical, highly educated, and well-trained psychotherapists. The American Psychotherapy Association currently offers the following certifications and designations: • Board Certified Professional Counselor, BCPCSM • Certified Relationship Specialist, CRS® • Academy Certified ChaplainSM • Certified in Hospital PsychologySM • Diplomate • Fellow • Master Therapist®

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Spring 2009 THE FORENSIC EXAMINER® 47

CE Article: (ACFEI) 1 CE credit for this article

SIZE DOESN’T MATTER: A Case Analysis of the Relationship Between the Number of Employees and Risk of Fraud in an Organization

Small family-owned corporations are often viewed as safe, stable work environs. Fewer employees equal a less stressful workplace, the possibility of becoming the next Enron or WorldCom seems slight, and close friendships flourish. However, these very reasons can cause small businesses to have a higher risk of susceptibility to fraud. Rather than being easier to review and control financial data, having a small staff can provide greater opportunities for collusion, and segregation of duties issues result in one or two staff members having the ability to manipulate financial accounts. It can also surprise one just how little you really know your coworkers. Conversely, others may feel more comfortable in a large corporation, believing that so many employees give someone little chance of committing fraud and getting away with it. This article discusses two cases that highlight how the perceptions related to size of a company and the risk of fraud can be quite deceiving.

Case 1: Freeport Capital Corp

By Lisanne Graham-Scott, CPA, RFC

48 THE FORENSIC EXAMINER® Spring 2009

Phil was a quiet man employed for the past 12 years by Freeport Capital Corp (Freeport). He was friendly with his coworkers and, due to his longevity with the firm, was treated like family by the owners. Viewed by many as a dedicated, tireless staff member, he seldom took vacation, and often worked long hours into the night or on weekends to ensure that the job was done. He was not a qualified accountant but had been in the field for over 20 years. Freeport was one company in the group of 14 family financial investment companies. As the Chief Financial Officer, Phil was a bank signatory for at least three of the companies with a signing authority limit of $20,000. Anything in excess of that amount was co-signed by the CEO. The individual companies were either audited or reviewed on an annual basis, and the external auditors viewed Phil as a competent, helpful individual who ensured all schedules were prepared for their arrival. With rising interest rates, each company was performing well financially and everyone was happy. Turnover was low, and staff had built a great rapport over the years, often socializing after hours. The owners spent 3 months every year vacationing in the tropics, comforted that the business was safe under Phil’s watch. The office was small, and consisted of six persons—the receptionist, office manager, and accounts assistant (who all reported to Phil), plus the investment manager, and the CEO/owner. Phil and the accounts assistant were responsible for the dayto-day transactions and accounting records of each company, with Phil working on the biggest two in the group: Freeport and Simple Inc. Phil dealt with everything from setting up the bank account, preparing tax returns, and paying inwww.acfei.com

voices to performing the bank reconciliations and financial statements on a monthly basis. In a small group it was easier for him and his assistant to split the companies in the group, with each of them performing all accounting duties for the companies in his portfolio. There was no segregation of duties or backup checks performed on the books by management apart from the annual audit. Internal controls were not closely monitored, as it was felt that the small size of the company was a positive factor in reducing any potential for control breakdowns. The annual audit for the past 3 years had always resulted in a clean opinion, and anything Phil’s assistant didn’t know, Phil could do. As fate would have it, one day Phil caught a chill and was forced to call in sick. The receptionist took the message and bade him a speedy recovery as she opened the daily mail. The first stack held correspondence from the bank, which was usually placed on Phil’s desk for his action, but in his absence the receptionist decided to expedite the process. In going through the returned checks that accompanied the bank statement, she noticed one was made out to Phil in the amount of $10,000. Puzzled, the receptionist showed it to the office manager, who immediately notified the CEO. Phil had not requested a loan from the company, salary and bonus payments were always paid by direct deposit, and as a salaried employee rather than a consultant, Phil would have had no other reason for receiving a check from the company. The CEO quickly contacted Phil for an explanation and placed him on immediate suspension, barring him from returning to the office until further notice. To the forensic accountants called in to investigate, the incident was unsurprising. Small companies with one key person in a position of trust and control are highly susceptible to being defrauded. The first step was to locate and examine all bank statements and returned checks for the period for which Phil was an appointed bank signatory. This spanned a period of 5 years. Checks not found on the premises were requested from the bank. Completed financial records for each company could not be located either on site or on Phil’s computer, so the accountants painstakingly rebuilt the cash account for those 5 years using the bank statements and printouts of the general ledger. During this process, it was discovered that a flaw in the check printing software allowed for the same check number to be generated more than once. Phil had exploited (800) 592-1399

this flaw and printed duplicate checks—one made out to a legitimate vendor that was posted to the general ledger and kept in his desk drawer, and the other which was made out either directly to himself, or to a related party on his behalf. This latter check made its way through the bank system and, on its return to the company, was usually removed from the files and replaced with the check made out to the legitimate vendor. When the team brought its findings to the companies’ board it was noted: • Phil was unaware that the company had found and investigated his frauds. • Some 200 checks had been falsified during the period and had to be requested from the bank. • He had stolen at least $200,000 for fraudulent payments of personal expenses. • He had diverted an additional $300,000 for payments to related parties. • In total, during the last 5 years, he had steadily diverted over half a million dollars of the companies’ funds for his benefit. • The team initially believed Phil’s activities may have started earlier than the 5 years. They recommended the timeframe under investigation be expanded. In his interviews with the accountants, Phil described a shattered family life caused by the increasing debts of a gambling addiction. His coworkers had been clueless to this aspect of his life. At first he had taken small amounts to cover household bills or the costs for his son’s sporting events. These quickly spawned into payments of his annual income tax liability, mortgage principal, vacation trips, charity donations, and the ever-increasing gambling debts. At first, when Phil was faced with the checks, his defense was, “It was a loan, and I had every intention of paying it back,” or “I had no health insurance and my son had been injured playing sports so I needed the money,” or even, “That was my bonus for the last 2 years, which we had discussed,” in an attempt to place the company on the defensive. However, when the magnitude of his crimes was revealed, he appeared shocked and dismayed, both at the fact that so much had been discovered and also at the rising possibility of his facing criminal charges. He was forced to sell his house to repay some of the funds and move in with his parents. His wife, who had left when his addiction came

“rather than being easier to review and control financial data, having a small staff can provide greater opportunities for collusion ...” to light, immediately filed for divorce and sole custody of their two sons. The man who once had it all now faces potential jail time if Freeport chooses to prosecute. To date, Freeport has recovered some but not all of the funds and has put measures in place to minimize the risk of this occurring again: • Fidelity insurance was purchased so that in the event of a recurrence, the loss to the company would be minimized. • The accounting department was revamped, and although one person is still responsible for all the records of a company, these records are reviewed by the CEO on a monthly basis. • The cash management process came under great scrutiny, and monthly bank reconciliations are now prepared and reviewed by separate members of staff. • A qualified accountant was hired for the position of CFO and put in place a comprehensive system to ensure verifiability of all records. It was a harsh and costly lesson for Freeport and showed that the control environment was not secure merely because of the company’s small size.

Case 2: ACB Inc. Keith was an internal auditor at ACB lnc., a large telecommunication company with well over 1,000 employees. Shortly after the completion of the annual audit, he received a report from a new employee who alleged that a manager in the sales division was committing expense account abuses. The employee had accompanied one of the vice-presidents (VP) on many business trips and noted some very unusual habits. When in restaurants or taking a taxi, the VP would often ask for extra blank receipts. Keith requested the VP’s travel file and found some irregularities: • multiple receipts from the same taxi company for the same days Spring 2009 THE FORENSIC EXAMINER® 49

• very expensive meals • duplicate meal receipts for the same days • additional suspicious charges for several hundred dollars, each billed to an unknown source Keith, an experienced auditor, was aware that employees who cheat on their expense accounts can usually do so by one of four methods: 1. Mischaracterized expenses—legitimate documentation is produced for nonbusiness-related transactions (e.g., taking a friend to dinner and charging it to the company as “business development”). 2. Overstated expense reports—inflated amounts of actual expenses where the difference is then kept by the employee (e.g., altering a taxicab receipt from $10 to $40). 3. Fictitious expenses—submitting phony documentation for reimbursement (e.g., producing a fake hotel bill on a home computer). 4. Multiple reimbursements—copies of invoices are resubmitted for payment more than once (e.g., copying an airline ticket and claiming the cost again on the next month’s expense reimbursement). The VP had been employing the first and last methods in his scheme in the 3 years following his promotion, and Keith found nearly $35,000 of fraudulent expenditure reimbursement during that period. This had not been caught by the accounting department. In a large company with many staff traveling weekly and submitting up to 100 expense reports a month, a lot of detail was provided for the 10 employees in the department to review. Despite the internal controls in place, the fraud was perpetrated successfully. Additionally, as VP, the person was not required to get approval for his expense reports, so they were never independently checked by his superior prior to submission for reimbursement. Although the amount uncovered by Keith’s investigation was immaterial to the company, there is no such thing as an immaterial fraud when the person involved is a member of management. If the integrity of executives is so low that they would engage in “immaterial” fraud, it is only logical that they would also engage in fraud when something material is at stake. Following this, it became a mandatory company policy that expense reports be approved by an employee’s immediate supervisor prior to submission. Keith also advised the head of the accounting department to be on the lookout 50 THE FORENSIC EXAMINER® Spring 2009

for any of the following typical red flags and to implement additional internal controls to deter further expense account abuse by any employee: • Increasing expense reimbursements by employee • Multiple receipts from a single vendor • Variations from budgeted expenses • Unreasonable charges • Photocopied documents—Although there can be legitimate reasons for using photocopies for small expense items, making a copy of an altered document is a common expense account ploy. The evidence provided to support an expense claim should be carefully reviewed to see whether it appears to contain alterations, especially if this is the habit of a single employee. The VP resigned after repaying the illegiti-

mate expenses. The company elected not to press any criminal charges. Each of the cases above clearly emphasizes that any company, whether big or small, is susceptible to the risk of fraud. Once an employee has motive, opportunity, and can rationalize his or her behavior, the chance of committing a fraudulent act is high. In an effort to deter this from occurring, all organizations should ensure that a well-developed internal control framework exists, is independently reviewed, and is updated on a frequent basis. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 51 or complete the exam online at www.acfei.com (select “Online CE”).

About the Author Lisanne Graham-Scott, CPA, RFC, is a Manager in the Advisory Services division at a Big Four Firm. Her work experience includes more than 3 years providing assurance advice to clients in the Caribbean, with an additional 3 years of international experience performing assurance services, regulatory compliance reviews, internal control reviews, and forensic accounting and litigation support services to clients in North America. She has been a member of ACFEI since 2007.

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Law Enforcement CE ARTICLE 3: Size Doesn’t Matter (Pages 48-50) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive one CE credit, each participant is required to

This article is approved by the following for continuing education credit:

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

LEARNING OBJECTIVES

KEYWORDS: segregation of duties, related parties, internal control

After studying this article, participants should be better able to do the following:

TARGET AUDIENCE:

1. Name some common rationalizations used by fraudsters. 2. Identify types of expense reimbursement fraud. 3. List indicators in an expense reimbursement scheme.

PROGRAM LEVEL: DISCLOSURE: The author has nothing to disclose. PREREQUISITES: none

ABSTRACT Small family-owned corporations are often viewed as safe, stable work environments. Fewer employees equal a less stressful workplace, the possibility of becoming the next Enron or WorldCom seems slight, and close friendships flourish. However, these very reasons can cause small businesses to have a higher risk of susceptibility to fraud. Rather than being easier to review and control financial data, having a small staff can provide greater opportunities for collusion, and segregation of duties issues result in one or two staff members having the ability to manipulate financial accounts. It can also surprise one just how little you really know your coworkers. Conversely, others may feel more comfortable in a large corporation, believing that so many employees give someone little chance of committing fraud and getting away with it. This article discusses two cases that highlight how the perceptions related to the size of a company and the risk of fraud can be quite deceiving.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1 Which of the following is a typical trait of a fraudster? a. Below average education b. Little knowledge of accounting systems c. Seldom took vacation d. None of the above

4 Which of the following is not present when fraud occurs? a. Motive b. Opportunity c. Ill health d. All of the above

2 Which of the following may motivate an employee to commit fraud? a. Stable family situation b. Gambling addiction c. Changing roles and responsibilities d. None of the above

5 Which of the following are red flags for fraudulent expense reimbursement? a. Multiple receipts from the same vendor b. Original invoices c. Decreasing expense claims d. None of the above

3 Which of the following is not a typical expense reimbursement scheme? a. Mischaracterized expenses b. Understated expenses c. Fictitious expenses d. All of the above

6 True or false: Copying an airline ticket and claiming it again on next month’s reimbursement is best characterized as a creating a fictitious expense. a. True b. False

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Spring 2009 THE FORENSIC EXAMINER® 51

CE Article: (ACFEI) 1 CE credit for this article

PARENTING CAPACITY ASSESSMENTS IN CHILD PROTECTION CASES By Peter W. Choate, MSW, RSW, DABFE, DABFSW, DAPA, MTAPA

he parenting capacity assessment is an important feature of child protection cases. Psychiatrists, psychologists, and social workers with an expertise in parenting typically complete these reports. The process used for assessment must be rigorous, thorough, and defensible. This article reviews the theoretical underpinnings and the major elements that go into a competent forensic assessment in these matters.

52 THE FORENSIC EXAMINER速 Spring 2009

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Psychiatrists, psychologists, and social workers with a specialty in parenting are frequently requested to conduct parenting capacity assessments (PCA) in child protection matters. The essential focus of these assessments is to determine whether or not the parents are able to safely parent the child(ren). If not, the assessor must determine the interventions that might be used to assist the parents in obtaining the requisite skills or consider whether the termination of parental rights is the appropriate direction. This is a significant responsibility given what is at stake for the family. Family preservation is a fundamental principle of child protection legislation throughout North America (Wattenberg, Kelley, & Kim, 2001). U.S. Supreme Court Justice Ruth Bader Ginsberg wrote that the ultimate recommendation by an assessor— the termination of parental rights—is the “destruction of family bonds,” and it is a “devastatingly adverse action” (M.L.B. v. S.L.J., 1996 as cited in Wattenberg, Kelley and Kim, 2001, p. 406). In Canada, Justice Abella of the Supreme Court of Canada wrote: “Families are the core social unit. At their best, they offer guidance, nurture, and protection, especially for their most vulnerable members— children. When they cannot, and the child is at serious risk, the law gives the state the right, in appropriate circumstances, to remove the child from the rest of the family for his or her own protection.” (Syl Apps Secure Treatment Centre, 2007, p. 6) Thus, courts clearly recognize that disruption of the family unit may be justifiable on a temporary or permanent basis (although the goal of most child protection service [CPS] interventions is to preserve the family unit). The role of the state in this situation places the family and the state at odds (Haugaard & Avery, 2002). The assessor holds a neutral, but very influential, position between the two. Jamieson, Tranah, and Sheldrick (1999) have reported that the courts pay significant attention to the recommendations of assessors. They were followed entirely in 73% of the cases they researched. The assessor represents neither side, thus playing a neutral role as a consultant to the various parties that include CPS, parents, legal counsel, and judges. That does not mean that the work of the assessor is not subject to careful review. The assessor’s report must be able to withstand the scrutiny of the judicial process (Dale & Fellows, 1999). The standard typically used to assess parents is that of “good enough” or “minimal parenting capacity.” The lack of a research-based, empirically driven definition of what constitutes acceptable minimal parenting capacity is an important (800) 592-1399

concern in this field (Budd, Felix, Sweet, Saul, & Carelton, 2006). Lennings (2002) points out that there is no gold standard for assessment in these matters. Nonetheless, the assessor must make clear what standards the parent is being measured against. Fortunately, there are a few helpful guidelines (Reder, Duncan, and Lucey, 2003a; Condie, 2003; Dyer, 1999; Pezzot-Pearce & Pearce, 2004; Polgar, 2001; Reder & Lucey, 1995; Steinhauer, 1991). Even though assessments are something of a snapshot in time, the conclusions must address the capacity of the parent over the long term. This is as opposed to what the parents might be able to do in the short term, such as with supervision or supports (Conley, 2003/2004). A short-term view would be inconsistent with the impressive body of literature that shows there are life-long implications to maltreatment and neglect, the important issues that typically have brought these families to the attention of CPS (Wattenberg et al., 2001). Regrettably, there remains a lack of consensus in the literature on what this minimal standard fully encompasses (Budd & Holdsworth, 1996). To be sure, it is not about expecting parents to meet optimal standards of parenting (Benjet, Azar, & Kuersten-Hogan, 2003). It is worth noting that each family possesses an internal definition of acceptable parenting with which they operate (Woodcock, 2003) and that the assessor should uncover during the assessment. The literature offers some guidance on the features of acceptable parenting that include a positive emotional expression by the parent to the child as well as having a child-centered approach to the relationship between them. Parents also need to provide routines, predictability, safety, and appropriate boundaries (Hurley, Chiodo, Leschied, & Whitehead, 2003). These are useful factors to consider, but it is not clear whether they can be relied upon across a variety of cultural, community, or professional standards. They at least provide a starting point. The assessment should be designed to determine if the parent, in respect of the child (or children), can provide a safe, stable, predictable environment that will support the child in both physical and psychological development (Steinhauer, 1991). As Dwyer (1997) has stated, a child’s rights “should include a claim on the rest of society to ensure that persons who enjoy the privilege of acting as their parents carry out their role in a manner that is consistent with the children’s interests” (p. 166). It may well be possible that a parent can successfully parent one child, but the nature or demands of another child are beyond that parent’s capacity. Parenting is a relationship that exists between the

National Resource Center for Child Protective Services The National Resource Center for Child Protective Services (NRCCPS) is operated by ACTION for Child Protection, Inc. ACTION, a private nonprofit organization, and its consultants have been providing consultation, training, and technical assistance to child welfare agencies since 1985. ACTION has been a part of the Children’s Bureau Training and Technical Assistance Network for more than a decade. The NRCCPS staff of CPS experts can assist individuals by

• Strengthening Programs to Improve Outcomes • Helping states address the eligibility requirements for the CAPTA State grant, including the recent requirements resulting from the 2006 reauthorization • Providing support to the Children’s Bureau’s State Liaison Officers (SLOs) through needs assessments, teleconferences, training, and publishing an SLO Newsletter • Teaming with network partners to provide onsite training and technical assistance to States, Tribes, and public child welfare agencies in the preparation and implementation of the Child and Family Services Review (CFSR) process Information retrieved from http://www.nrccps.org/about_nrccps.php

Spring 2009 THE FORENSIC EXAMINER® 53

TABLE 1. PARENTING ASSESSMENT MODELS – Comparison Table (Harland, 2006)

STEINHAUER (1991)

BELSKY/VONDRA (1989)

3 Domains

1. Contributions of the parent • Personality • Psychological disturbances 2. Contribution of the child • Premature • Temperament • Special needs 3. Contextual sources of stress and support • Neighborhood environment • Close relationships • Marital relationship • Social network

4 Focuses 9 Guidelines A. Focus on the context Current stressors B. Focus on the child Child’s developmental progress C. Focus on child-parent relationship Attachment status Observations of current parenting ability Focus on the parent Impulse control Parental acceptance of responsibility Behaviours affecting parenting ability and capacity Parent’s manner of relating to society Parent’s use of clinical interventions

REDER/LUCEY (1995/2003)

1995—5 Themes 2003—3 Themes 1995 Parent’s relationship to the role of parenting Parent’s relationship to the child Family influences Parent’s interaction with the external world Potential for change 2003

54 THE FORENSIC EXAMINER® Spring 2009

4 Categories

Parent information Familial history History of child protection Personal background Psychological functioning Parenting functioning Social functioning Child Information Develop history Current needs Reactions to visits Impact of abuse/neglect Parent-child bond Observations during visits Fit Risk prediction

Parent-child relationship Child-parent relationship Family-context interaction

two people (Woodcock, 2003), and each relationship is unique and exists over time. This creates the consideration of the goodness of fit that exists between these two people (Azar, Lauretti, & Loding, 1998). The assessment must consider the relationship between the parent and each child and that child’s specific needs (Pezzot-Pearce and Pearce, 2004). It is vital that assessors be well acquainted with legislation in the jurisdiction in which they are conducting the assessment. There is no value in making recommendations that are not consistent with the legislative framework, for to do so is to minimize the value of the assessment, if not to nullify it. The solutions proposed must be achievable within the legislation. Generally speaking, child protection assessments are very complex and involve a multitude of inter-

AZAR, LAURETTI & LODING (1998)

Systemic Issues Compliance Progress Visitation consistency Interactions with professionals

acting dynamics. These families operate within a complex ecological system that includes not only the direct capacity of the parent but also the functioning of the whole family system. Environmental factors, including the community in which the family functions, and the child’s specific developmental needs are part of the overall picture (Gray, 2001). Thus, consideration will need to be given to the family history, the personal history of the parent, economic and social connections, the capacity of the parent to provide a healthy attachment environment, and potential allied problem such as medical, mental health, or addiction concerns. Attention must also be given to the cultural issues specific to the particular family being assessed (D’Avanzo and Geissler, 2003; Azar et al., 1998). As can be seen, issues cannot be assessed in a vacuum but as parts of an interlocking environmental system. www.acfei.com

POLGAR (2001)

4 Categories of Analysis

Attachment experience of the parent Criteria of a good parent Social support network Evidence-based expectations for acquiring and applying parenting capabilities

BUDD (2001)

PEZZOT-PEARCE & PEARCE (2004)

3 Core Features

Sources of Influence

Parenting Emphasis on parent’s functioning as a caregiver and on qualities of the parent-child relationship

1. Child Factors

Functional Competence Focus on functional skills and deficits involved in everyday parenting patterns

Atypical development - difficult temperament - developmental disorders - medical problems - learning problems

Minimal Parenting Standard Measurement of parenting adequacy in light of what would be minimally necessary to protect the safety of the child

Typical development - the needs of normal children

Specific life events and parenting needs - Child abuse and neglect - Adopted children - Separation/divorce - Risk and resiliency 2. Parent Factors Personal characteristics that increase the risk of poor parenting 3. Contextual Sources of Support or Stress Income and residence Social supports

Reder, Duncan, and Lucey (2003b), in their revised framework to guide assessment of parenting, focus on three broad areas: 1) parent and parent-child relationship (including personal functioning, relationship to the parenting role) 2) child and child-parent relationship (including evidence of significant harm, contribution to the parenting relationship, attitude to parental figures, and sufficient understanding) 3) context (such as family functioning, social stresses, potential for stability, and relationships with others) (p. 16) As Balsky and Vondra (1989) point out, consideration is to be given to the strengths and the weaknesses that a family may possess. This strength-based approach allows (800) 592-1399

the assessor to consider ways in which parenting capacity can be enhanced and may well increase the possibilities of sustaining the family unit. Trivette and Dunst (1990) have outlined qualities of strong families that might be considered in this work. These include such things as the commitment to the well being of family members; appreciation for what each member does; commitment to spend time together; a sense of purpose in the family allowing them to keep going in good and bad times; congruence amongst family members on values and commitment to family goals; the ability to communicate effectively and to see the positives; a clear set of family rules, values, and beliefs that are tied to expectations about acceptable and desirable behaviors; a variety of coping strategies;

the ability to effectively engage problem solving; positive crisis management; flexibility, adaptability, and a balanced use of internal and external resources for coping and adapting to life events. Harland (2006) has compared some of the various models for CPS assessments. (See Table 1). There are other models, such as the Toronto Parenting Capacity Assessment Project (Conley, 2003/2004; Steinhauer, 1991; Wolpert, 2002). In the United Kingdom, there is the Framework for the Assessment of Children in Need and Their Families (Gray, 2001). Risley-Curtiss et al. (2004) offer an approach that might be used with special populations such as the mentally ill. There are professional guidelines such as those offered by the American Psychological Association (American Psychological Association Committee on Professional Practice and Standards, 1988) and the American Academy of Child and Adolescent Psychiatry (American Academy of Child and Adolescent Psychiatry, 2007). These models help the assessor have a research or evidence-based approach to assessment. It also provides a way to think about the various factors that need to be considered by the assessor. A failure to have a solid framework with which to work leads to serious flaws in reports. Budd et al. (2001) have noted several problems in their review of 190 PCAs. These included assessments being conducted in a single session; rarely including a home visit; using few sources of data other than the parents; not reviewing prior assessments; failing to refer to the CPS or mental health records; emphasizing weaknesses instead of strengths; failing to describe the purpose of the assessment, limits to confidentiality, and believability of information; limiting the assessment findings; failing to address the parent’s care giving qualities; as well as failing to describe the parent’s relationship with the child. These are serious flaws when so much is at stake. Budd (2005) has outlined a series of criteria that can be used to evaluate PCAs. These include following American Psychological Association (1998) guidelines (or guidelines appropriate to the assessor’s specific profession and locale) whether or not the methods and content address parenting directly; whether referral questions are identified and answered; and whether or not the report is thorough, clear, and understandable.

Spring 2009 THE FORENSIC EXAMINER® 55

â&#x20AC;&#x153;the child protection record should be reviewed, but so should medical, school, counseling, treatment, mental health, and probation records.â&#x20AC;?

Referrals The referral is a vital piece of the assessment process. It must clearly show what requires assessing and whom is to be assessed. The assessment should flow directly from the context of the case, which should act as the basis of the referral. If the referral is weak and inarticulate, it creates a foundational error in the assessment process. This is because it has not addressed what really requires assessing (Budd et al., 2006; Pezzot-Pearce & Pearce, 2004). Indeed, it is appropriate for assessors to resist referrals that do not lay out the questions to be answered. Clarity in the referral makes for clarity in the report. Recommendations need to be clearly related to the referral questions and should flow directly from the data collected. Cases can then be formulated in ways that are directly related to the context of the case and provide all parties with useful directions upon which to proceed. The consumers of the report need to be able to apply conclusions and do so at a very pragmatic level. The referral should make clear whom is to be assessed. For example, this author has had instances where cases have been referred, seeking an assessment of a parent, only to discover that there is another parent in the home who has not been included in the assessment. In those situations, one is being asked to consider only half of the parental unit.

with CPS that an assessment should be conducted. By engaging in the informed consent process, it allows the assessor an opportunity to not only outline for the parent what the process is going to look like but also to tease out what the parent understands about CPS involvement and the issues. Consent should include recognition that there are significant limits to confidentiality. For example, the consent should note that the report will be provided to CPS but that it is also likely to be reviewed, should there be any form of a hearing, by legal counsel involved in the case for each of the parties as well as the court itself. The parent should explicitly acknowledge this limit to confidentiality within the consent. Should a parent refuse to sign the consent then the assessment should naturally come to a halt. The parent may then exercise his or her right to take the matter back in front of a judge or to further negotiate with CPS on what is and is not required in the case.

Records Records are an essential part of understanding the case (Reder, Duncan, and Lucey, 2003c). These allow the assessor to understand what has taken place previously, including what therapeutic interventions may have been tried, as well as the degree to which they have been successful. Care should be taken to avoid bias when reviewing records (Budd & Holdsworth, 1996). The child protection record should be reviewed, but so should medical, school, counseling, treatment, mental health, and probation records. They all contribute to a larger understanding of the family system and the ways in which the family has interacted with the community. In my view, parents should have an opportunity to comment upon the information within the record, because there should never be an assumption that records are infallible. Parents may wish to offer their perspective, including correcting information they perceive to be inaccurate or misleading. There are occasions when it is appropriate to ask a parent for a criminal record check if such is allowable within the jurisdiction and it is relevant to the assessment questions. Again, we see the connection between the referral questions and the assessment process.

Consent

Psychometric Testing

The consent process should meet the criteria of informed consent. Parents have the right to refuse to consent as long as they truly understand the consequences. They may often feel, however, that there really is no option but to go through the assessment, thus feeling disempowered (Budd et al., 2006). Nonetheless, many referrals are of a more cooperative nature, where the parent has agreed

Psychometric testing is a controversial area within child protection parenting capacity assessments (Budd & Holdsworth, 1996; Conley, 2003/2004; Heinze & Grisso, 1996). With the possible exception of the Child Abuse Potential Inventory (Milner, 1986), there are no commonly used assessment measures that have been normed on a child protection population. The Parenting Stress Index

56 THE FORENSIC EXAMINERÂŽ Spring 2009

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(Abidin, 1990) has fared reasonably well in research. Yet, the CAPI has a challenge with both false positives and false negatives, while the PSI has challenges with false positives (Heinz & Grisso). This means that there are definite limits to the utility of these and other assessment measures and their applicability to the assessment. Most measures are under some level of challenge as to their relevance to the particular field of child protection. Care should be taken as to how much weight is put on the results of these measures (Reder, Duncan, and Lucey, 2003c). As these authors note, the results can create the illusion of scientific validity where it does not exist. They further note that users of these tests can develop a belief that they uncover psychopathology that is not otherwise observable. Those assessment measures that have validity scales are the best as they assist identifying “fake good” profiles that are common in this population (Carr, Moretti, and Cue, 2005; Budd & Holdsworth, 1996). In many respects this is quite understandable given how much is at risk for these parents; thus, it can be anticipated that parents will try to present themselves in the best possible light (Budd & Holdsworth, 1996). Cultural issues are another area of concern. Very few assessment measures have been normed on many of the immigrant populations or the indigenous peoples of North America. This further strains the credibility of these assessment measures in many cases. Clearly, unless there is a version available in the native language of an individual who is not completely proficient in English, there are real ethical concerns as to whether assessment measures should be used in those cases. A typical assessment battery includes a personality measure such as the Minnesota Multiphasic Personality Inventory (MMPI2) (Butcher et al.,1989) or the Personality Assessment Inventory (Morey, 1996). In addition, the Parenting Stress Index (Abidin, 1990) or its adolescent version, the Stress Index for Parents of Adolescents (Sheras, 1998), the Child Abuse Potential Inventory (Milner, 1986), and the Adult Adolescent Parenting Inventory (Bavolek & Keene, 2001) are common measures used in these cases. Specialized assessment tools may also be used, such as those pertaining to addiction when the referral questions raise such issues. Some assessors will also complete intellectual testing almost as a norm. This remains an area of significant debate, although (800) 592-1399

it probably has relevance in circumstances where the intellectual capacity of the parent is at question.

Interviews The interview is an area of extensive inquiry designed to consider multigenerational patterns, family of origin issues, the parent’s own developmental trajectory, as well as the current status of the family. When possible, the data should be gathered over several interviews. This allows the assessor to see the parent in varying presentations. Many parents are able to offer a positive impression if they need only manage a single assessment meeting. More frequent interactions tend to offer a more realistic view of how the parent handles multiple contacts and the stress that goes with them. Wattenberg, Kelley, and Kim (2001) have noted families involved in CPS matters, particularly those with the worst prognosis, have “interlocking constellations of problems that include substance abuse, mental illness, cognitive deficiency, maladaptive parenting behavior originating in the caregivers’ childhood deficiencies, early and frequent childbearing, and criminal justice incidents” (p. 423). Thus, inquiry is complex. There are several examples of the wide range of topics to be reviewed (Budd, 2001; PezzotPearce & Pearce, 2004; Kuehnle, Coulter, and Firestone, 2000; Reder, Duncan, and Lucey, 2003b; Steinhauer, 2001). If there are concerns regarding domestic violence, it is advisable to interview the parents separately. Given the dynamics of abusive relationships, there may be resistance to seeing each parent alone. The assessor may need to simply state that is the way that the protocol is done. Either way, there are risks. Separate meetings can cause the abusive partner to be suspicious of what has been said without their presence. This can, in and of itself, create risks for the abused person. If English is not the native language of the parent, and there is any doubt about competency in the language, a translator may be required. An exception is when the assessor speaks the parent’s mother tongue fluently. There are a few guidelines if a translator is used. The translator: • Should not be a friend or relative of the parent unless there is absolutely no other choice. • Needs to be literal in their translation. They should not be interpreting the words in a way that is perceived to be culturally desirable to the assessor.

• Should have some qualification as a translator, such as being so qualified in court. • Should understand the rules of confidentiality. Benjet, Azar, and Kuersten-Hogan (2003) note that in gathering the history, it is important to question one’s assumptions. For example, they argue that it is wrong to conclude that, just because there is a mental illness, a parent may be automatically limited in the capacity to parent. There is evidence, however, that mental health issues often are at play in these matters (Lewis & Creighton, 1999). Assumptions and biases of the assessor impact directly upon the interpretation and weight that is given to information gathered from interviews. The facts of each case require that its uniqueness be considered as opposed to assuming that any one presentation, such as this mental health example, direct a conclusion.

Interview of the Children When age appropriate, children should be interviewed as part of the assessment. This would allow the child to describe the relationship he or she has with each parent and perhaps the role that each parent plays in his or her life and in the home. It is always interesting to understand how the child views boundary settings within the home and to hear from the child’s perspective how consequences are managed. It is informative to hear the child’s observations of how people in the family get along. Children often have unique perspectives on how such things as domestic violence or family disputes have affected them. They can also describe how they react during such episodes—a behavior pattern into which parents frequently have poor insight. Care should be taken in how the interview is conducted. The American Bar Association has published a valuable, linguistically informed approach to questioning children (Walker, 1999). Drawings can be used as a way to illicit the child’s thoughts, but the weight attached to them must be carefully considered (Reder, Duncan, and Lucey, 2003c). The assessor should be cautious when handling information as children offer a different perspective on the facts than that of their parents. If these variations are put bluntly to the parents, this may place the child at risk, particularly if there has been a history of domestic violence. It can also cause the child to recant their story, deny what he or she has said, or learn that disclosure is unsafe. Spring 2009 THE FORENSIC EXAMINER® 57

Other areas of inquiry with children might include school and extracurricular activities as well as what they recall from any counseling or in-home interventions that have previously been tried. Children can also describe how other important adults are involved in their lives and the impact that these individuals have. This might include grandparents or other extended family as well as teachers or coaches. These people may offer a source of resilience not available from their parents. The question that arises is what happens when those people are not available?

Collateral Interviews Certain collateral interviews are well worth undertaking. For the most part, personal references from parents are rarely illustrative, as they have often been chosen simply because they will support the parental perspective. It is not uncommon for these references to be coached. Yet, I have been surprised, on occasion, by the frankness of some of these references. Valuable collateral interviews can be conducted with physicians, therapists, teachers, and those working directly with the family. When visits are supervised, interviews with visit supervisors can also be helpful, particularly in cases where the same visit supervisor has been involved over a period of time. When conducting such interviews, it is imperative that the individual being interviewed understands that the information gathered will form part of the record. Therefore, it can be expected that the parent will see the information. Note this in your records if the interviews are done by phone. Consents should be signed by the parent before these interviews are undertaken.

Observation Except in cases where it would create safety concerns for the child, observing parent and child together should always form part of the assessment process. Yet research has suggested that this is not done in the majority of cases (Budd, Poindexter, Felix, & NaikPolan, 2001). In general, it is best if these observations can take place naturalistically. As a result, if CPS permits, the visit should take place in the home. This has several advantages, including allowing the assessor an opportunity to see the normal environment in which the child lives. Children will also generally be more comfortable in their home environment. If there are inter-parental abuse concerns, each parent should be observed on his or her own visit with the children. 58 THE FORENSIC EXAMINER® Spring 2009

If the child is age appropriate, have him or her conduct the tour of the home during which you can ask what goes on in various rooms. Some authors suggest setting up structured tasks for the family that create a moderate degree of stress (Hynan, 2006). They feel that this offers the assessor the opportunity to see how parents interact with their children in more difficult situations. Others might suggest that such activities tend to be manufactured and are clearly open to difficult questioning in court. The evening meal can be a naturally stressful time and offers good observational opportunities. When observing infants in the home, pay attention to proximity seeking, contact maintenance between parent and child, search behavior by the child during separation, eye gaze, avoidance, vocalizing, resistance to comfort, evidence of disassociation, and approach avoidance behavior indicative of a disorganized attachment. Dyer (2004) argues persuasively that attachment or, as he terms them, bonding assessments, are an important feature of understanding the relationship between parents and children, particularly with infants and toddlers. Although some home observation checklists do exist, there are none that have been clinically validated specific to CPS issues. Hynan (2006) has offered a review of some tools that might be used. In addition, Budd (2001) has put together a list of potential areas for informally observing parent-child interactions (p. 12). Observations need to be culturally and developmentally based.

Case Formulation The case formulation is a summary of what has been gathered in the course of the assessment and acts as the vehicle by which the initial referral questions are addressed and recommendations are made. In preparing a case formulation, the assessor might consider the following questions: • Is it possible for the children to safely reside in this home? If not, what might be done for this to occur? • Is that change realistic? In other words, are the deficiencies modifiable? (Budd & Holdsworth, 1996). • What is the past record demonstrating the parent’s capacity to change? • Can change occur within a time frame that is in the interests of the child? • Do the parents accept that change needs to occur?

• Are the parents realistically willing to try? When making recommendations, assessors need to bear in mind that parents can only do so much. Overloading parents with a set of activities that is beyond their ability to cope is, in reality, setting them up to fail. Thus, it may be necessary to have a phased approach to recommendations when there are many things to be done. Recommendations must be realistic. If the prognosis is poor, recommend honest efforts at rehabilitation for the parents while also suggesting a concurrent plan for alternate long-term placement so as not to place the child at risk of simply drifting within the system (Wattenberg et al., 2001). If the termination of parental rights is being recommended, do not hedge the point. Be clear and then articulate why rehabilitation efforts are not being recommended. Useful frameworks for laying out the report can be found in Budd (2001) PezzotPearce & Pearce (2004), Steinhauer (1991), and Polgar (2001).

Conclusion Child protection assessments are designed to determine if a child can be safely raised by the parent being assessed. There remains the possibility in all CPS cases that the termination of parental rights may occur. Thus, this is an onerous responsibility to bear for an assessor as the implications of the recommendations have widespread impacts on many lives (Budd et al., 2006). All parties deserve a competent assessment from an unbiased professional who is well versed in the issues faced with these families. A practitioner in this field must be able to manage the complexities of these families, including domestic violence, mental health, and addictions. The burden is heavy, but the implications are enormous. It is important for assessors to follow a rigorous approach to these assessments and to ensure that reports are written from a perspective that is defensible in court. If there is a hearing, it is vital for assessors to ensure that they represent their assessment and are not biased observers for either party. A good assessor in child protection matters is one who approaches the case from a neutral perspective, answers referral questions, and does not serve the interests of either child protection or the parent. In essence, in the assessment, the focus is the child and his or her right to have a safe, nurturing environment in which to develop. www.acfei.com

References

Abidin, R. R. (1990). Parenting stress index (3d ed.). Odessa, FL: Psychological Assessment Resources. American Academy of Child and Adolescent Psychiatry. (2007). Practice parameter for the assessment of the family. Journal of the American Academy of Child and Adolescent Psychiatry, 46(7), 922-937. American Psychological Association Committee on Professional Practice and Standards. (1988). Guidelines for psychological evaluations in child protection matters. Washington, D.C.: American Psychological Association. Arad, B.D. (2001). Parental features and quality of life in the decision to remove children at risk from home. Child Abuse and Neglect, 25 (1), 47-64. Azar, S. T., Lauretti, A. E., & Loding, B. V. (1998). The evaluation of parental fitness in termination of parental rights cases: A functional-contextual perspective. Clinical Child and Family Psychology Review, 1(2), 77100. Bavolek, S.J. & Keene, R.G. (2001). Adult Adolescent Parenting Inventory AAPI-2: Administration and Development Handbook. Park City, UT: Family Development Resources Inc. Benjet, C., Azar, S. T., & Kuersten-Hogan, R. (2003). Evaluating the parental fitness of psychiatrically diagnosed individuals: Advocating a functional-contextual analysis of parenting. Journal of Family Psychology, 17(2), 238-251. Budd, K.S. (2005). Assessing parenting capacity in a child welfare context. Child and Youth Services Review, 27 (4), 429-444. Budd, K. S. (2001). Assessing parenting competence in child protection cases: A clinical practice model. Clinical Child and Family Psychology Review, 4(1), 1-18. Budd, K. S., Felix, E. D., Sweet, S. C., Saul, A., & Carelton, R. A. (2006). Evaluating parents in child protection decisions: An innovative court-based clinic model. Professional Psychology: Research and Practice, 37(6), 666-675. Budd, K. S., & Holdsworth, M. J. (1996). Issues in clinical assessment of minimal parenting competence. Journal of Clinical Child Psychology, 25(1), 2-14. Budd, K. S., Poindexter, L. M., Felix, E. D., & NaikPolan, A. T. (2001). Clinical assessment of parents in child protection cases: An empirical analysis. Law and Human Behavior, 25(1), 93-108. Butcher, J.N., Dahlstrom, W.G., Graham, J.F., Tellegen, A.M. & Kaemmer, B. (1989). MMPI-2: Manual for administration and scoring. Minneapolis, MN: University of Minnesota Press. Carr, G.D., Moretti, M.M. & Cue, B.J. (2005). Evaluating parenting capacity: Validity problems with the MMPI-2, PAI, CAPI and ratings of child adjustment. Professional Psychology: Research and Practice, 36 (2), 188196. Condie, L. O. (2003). Parenting evaluations for the court: Care and protection matters. New York: Kluwer Academic / Plenum Publishers. Conley, C. (2003/2004). A review of parenting capacity assessments. OACAS Journal, 47(3), 16-23. Dale, P., & Fellows, R. (1999). Independent child protection assessments: Incorporating therapeutic focus from an integrated service context. Child Abuse Review, 8(1), 4-14. D’Avanzo, C. E., & Geissler, E. M. (2003). Pocket guide to cultural health assessment. (3d ed.). St. Louis, MI: Mosby. Dwyer, J. G. (1997). Setting standards for parenting - by what right? Child Psychiatry and Human Development, 27(3), 165-177. Dyer, F. J. (1999). Psychological consultation in parental rights cases. New York: The Guilford Press.

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Dyer, F. J. (2004). Termination of parental rights in light of attachment theory: The case of Kaylee. Psychology, Public Policy and Law, 10(1/2), 5-30. Gray, J. (2001). The framework for the assessment of children in need and their families. Child Psychology and Psychiatry Review, 6 (1), 4-10. Harland, D. (2006). Case study: Parenting capacity assessment in child welfare. Unpublished Master of Social Work, University of Calgary. Haugaard, J. J., & Avery, R. J. (2002). Termination of parental rights to free children for adoption: Conflicts between parents, children and the state. In B. L. Bottoms, B. B. Kovera & B. D. McAuliff (Eds.), Children, social science and the law (pp. 131-152). Cambridge: Cambridge University Press. Heinze, M. C., & Grisso, T. (1996). Review of instruments assessing parenting competencies used in child custody evaluations. Behavioral Sciences and the Law, 14, 293-313. Hurley, D. J., Chiodo, D., Leschied, A., & Whitehead, P. (2003). Correlates of a measure of parenting capacity with parent and child characteristics in a child welfare sample. Unpublished manuscript. Hynan, D. J. (2006). Scientific considerations in observing how children interact with their parents. The Forensic Examiner, 15(4), 42-47. Jamieson, N., Tranah, T., & Sheldrick, E.C. (1999). The impact of expert evidence on care proceedings. Child Abuse Review, 8(3), 183-192. Kuehnle, K., Coulter, M., & Firestone, G. (2000). Child protection evaluations: The forensic stepchild. Family and Conciliation Courts Review, 38(3), 368-391. Lewis, V., & Creighton, S.J. (1999). Parental mental health as a child protection issue: Data from the NSPCC national child protection helpline. Child Abuse Review, 8 (3), 152-163. M.L.B. v. S.L.J. (United States Supreme Court 1996). Milner, J. S. (1986). The child abuse potential inventory manual (2nd ed.). Webster, NC: Psytec. Morey, L. (1996). An Interpretive Guide to the Personality Assessment Inventory and the PAI Structural Summary Booklet. Odessa, Fl: ParInc. Pezzot-Pearce, T. D., & Pearce, J. (2004). Parenting assessments in child welfare cases: A practical guide. Toronto: University of Toronto Press. Polgar, A. T. (2001). Conducting parenting capacity assessments: A manual for mental health practitioners. Hamilton, ON: Sandriam Publications. Reder, P. Duncan, S. & Lucey, C. (Eds.) (2003a). Studies in the Assessment of Parenting. London: BrunnerRoutledge. Reder, P., Duncan, S. & Lucey, C. (2003b). What principles guide parenting assessment? In P. Reder, S. Duncan & C. Lucey (Eds.), Studies in the Assessment of Parenting (pp. 3-26). London: Brunner-Routledge.

Reder, P., Duncan, S., & Lucey, C. (2003c). How are assessments conducted for family proceedins? In P. Reder, S. Duncan & C. Lucey (Eds.), Studies in the Assessment of Parenting (pp. 27-52). London: Brunner-Routledge. Reder, P., & Lucey, C. (1995). Significant issues in the assessment of parenting. In P. Reder, & C. Lucey (Eds.), Assessment of parenting: Psychiatric and psychological contributions (pp. 3-17). London: Routledge. Risley-Curtiss, C., Stromwall, L.K., Hunt, D.T., & Teska, J. (2004). Identifying and reducing barriers to reunification for seriously mentally ill parents involved in child welfare cases. Families in Society, 85 (1), 107118. Sheras, P. (1998). SIPA: Stress Index for Parents of Adolescents: Professional Manual. Odessa, FL: PAR Inc. Steinhauer, P. D. (1991). The least detrimental alternative: A systemic guide to case planning and decision making for children in care. Toronto: University of Toronto Press. Syl Apps Secure Treatment Centre v. B.D. 2007 SCC 38 (Supreme Court of Canada 2007). Trivette, C.M., & Dunst, C.J. (1990). Assessing family strengths and family functioning style. Topics in Early Childhood Special Education, 10 (1), 16-35. Walker, A. G. (1999). Handbook on questioning children: A linguistic perspective (Second Edition). Washington, D.C.: ABA Centre on Children and the Law. Wattenberg, E., Kelley, M., & Kim, H. (2001). When the rehabilitation ideal fails: A study of parental termination rights. Child Welfare, 80(4), 405-431. Wolpert, R. (2002). Assessing parenting capacity guidelines. OACAS Journal, 46(1), 17-22. Woodcock, J. (2003). The social work assessment of parenting: An exploration. British Journal of Social Work, 33(1), 87-106. n

Earn CE Credit To earn CE credit, complete the exam for this article on page 60 or complete the exam online at www.acfei.com (select “Online CE”).

About the Author Mr. Choate, MSW, RSW, DABFE, DABFSW, DAPA, MTAPA, is a clinical social worker in private practice in Calgary, Alberta. He holds Diplomate status with ACFEI including with the American Board of Forensic Social Workers and also the American Psychotherapy Association. He appears as an expert witness in family courts assessing parenting capacity, addictions, and family violence. He has presented at ACFEI conferences on numerous occasions. He is a sessional member of the Faculty of Social Work at Mount Royal College and a clinical consultant to the Alberta Adolescent Recovery Centre. Spring 2009 THE FORENSIC EXAMINER® 59

CE ARTICLE 4: Parenting Capacity Assessments in Child Protection Cases (pages 52–59) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive one CE credit, each participant is required to

This article is approved by the following for continuing education credit:

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

KEY WORDS: child protection and welfare, parenting capacity

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following:

1. Understand the position of the assessor within the child protection arena including the scope of responsibility. 2. Describe the theory behind the assessments. 3. List the major elements that form a competent assessment that is able to withstand scrutiny in court.

TARGET AUDIENCE: PROGRAM LEVEL: DISCLOSURE: The author has nothing to disclose. PREREQUISITES: none

ABSTRACT The parenting capacity assessment is an important feature of child protection cases. Psychiatrists, psychologists, and social workers with an expertise in parenting typically complete these reports. The process used for assessment must be rigorous, thorough, and defensible. This article reviews the theoretical underpinnings and the major elements that go into a competent forensic assessment in these matters.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1. Parents are typically not assessed against which standard? a. Minimal parenting capacity b. Good enough parenting c. Optimal parenting d. None of the above

4. Major problems with PCAs include which of the following? a. Single session assessments b. Lack of a home visit c. Failure to review prior records d. All of the above

2. As part of the informed consent process, the parent is to be advised of: a. The assessment process b. Limits to confidentiality c. The role of the assessor d. All of the above

5. Psychometric tests have several advantages including: a. They offer a scientific basis to the assessment. b. They uncover hidden psychopathology that would not be obtained any other way. c. They create an objective assessment of the parent that could not be done without them. d. None of the above.

3. The goal of using a strengths-based approach is to ensure that: a. The parent feels good about the assessment process. b. To assure the courts that the positive features of the parent have been considered. c. To determine the basis upon which parenting skills may be enhanced. d. To avoid making the weaknesses obvious.

6. True or false: Parents who present with active mental health or addiction problems should automatically be precluded from parenting their child. a. True b. False

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CE Article: (ACFEI) 1 CE credit for this article

Many forensic mental health practitioners, including psychologists, psychiatrists, counselors, and social workers, use technology on a daily basis. Forensic mental health professionals should become familiar with ethical and legal responsibilities concerning confidentiality and the use of technologies such as telephones, cell phones, fax, e-mail, and chat. Becoming cognizant of the benefits and hazards in using technology will enhance the forensic practitioner’s ability to practice risk management within his or her particular work setting.

Discussion Technology is a common part of our work and personal lives. Using the computer to create documents, read and send e-mail, “Google” for information, and enter data to generate reports is a mainstream activity. Fax machines have become almost passé, but they are still used. Carrying a cell phone has become almost as commonplace as carrying a wallet or purse.

The use of this technology assumes certain risks for the forensic mental health practitioner that should be considered. All mental health professionals, regardless of education and work setting, are familiar with the basic principles of confidentiality. During the informed consent process, forensic mental health professionals educate clients about the possible circumstances in which the information shared during a session might be shared with others. If the service is mandated by the courts, all of the information may be avail-

able to the courts. Otherwise, precautions are taken to ensure that the client’s information remains confidential, following the dictates of laws such as HIPAA (Health Insurance Portability and Accountability Act), state licensing rules, and ethical code(s) of various mental health organizations (International Society for Mental Health Online, 2000). However, many professionals do not consider the basic tasks performed every day as areas of practice that involve any particular risk. For example, many professionals rely on e-mail to make contact with clients or to set up appointments. Some professionals, after receiving the appropriate release of information, may use email to send a report or summary to another mental health professional or a lawyer. Others encourage collateral sources to send information regarding a client via e-mail. The collateral information, sometimes regarded by the court as hearsay, is used in writing certain forensic evaluations such as custody and parental fitness. This information may be flattering of the client’s character or may contain inflammatory remarks and other negative information that may or may not be accurate. In most cases, forensic mental health clients are court-ordered to obtain an evaluation and/or treatment. Because of the court order, the “client-therapist” privilege is not always pertinent. Results of the evaluation or treatment

M C I FORENS 62 THE FORENSIC EXAMINER® Spring 2009

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are generally reported to an authority of the client’s case, and tracking progress is typical protocol. Forensic mental health evaluators often seek out additional information through collateral sources. Collateral information may be obtained through the client’s friends and family and may or may not place the client in the best light. How this collateral information is obtained is important when managing risk. The following delineates “best practice” with regard to transmission of client and collateral information via technology. Common examples of protecting confidentiality in a standard forensic mental health practice will be used to compare and illustrate the importance of protecting client rights and ensuring that only persons with a “need to know” basis receive sensitive information. For the purposes of this article, we will use the following work environment to illustrate confidentiality issues: Jim Brown is a 45-year clinician who has a master’s degree. He is licensed to practice professional counseling in his state. He has various certifications to demonstrate proficiency in certain areas, one of which is the Certified Forensic Consultant (CFC) designation. Jim works for an organization that offers evaluation and counseling to court mandated clients. Jim’s role primarily consists of evaluations such as paren-

L A T N E M

tal fitness, domestic violence, sex offenders, and substance abuse cases. On a typical day, he completes two clinical interviews, scores assessment instruments, reviews existing files, and obtains collateral information. Jim has a computer at his office and a laptop he uses while traveling. He also has a computer at home. All three computers are used for testing purposes, writing evaluations, and corresponding with colleagues and clients. He also receives e-mails and phone calls via his cell phone throughout the day. The office fax machine is used by other staff people, evaluators, and himself. Occasionally, he conducts evaluations out of the office either in the client’s home or in another designated location. What areas in the work setting described above are of concern for breaches of confidentiality? As mental health professionals, we know to keep files locked and out of reach of other clients and staff who do not have a need to access the file. We know that if we practice counseling and eval-

H T L A E H

uation in an office with more than one clinician, sound barriers must be used to buffer conversations between offices with insufficient insulation. HIPAA mandates that client privacy is maintained when signing in at the entrance, so other clients do not have access to names and the reason for another person’s visit. Transporting files from one location to another, as Jim does, is typically conducted in such a fashion as to conceal the file from sight, and it is kept locked in a file case or briefcase when not on one’s person. These are examples of precautions most clinicians know must be taken. While many forensic mental health professionals may not be obligated to observe HIPAA regulations, protecting client information from others creates the best standard of care. Other less obvious areas that may cause a breach of confidentiality are becoming increasingly common:

Y G O L O N H C E T &

Risk Management Strategies for the Practitioner By DeeAnna Merz Nagel, LPC, DCC, CFC, and Kate Anthony, MSc, MBACP

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Spring 2009 THE FORENSIC EXAMINER® 63

Are computer screens in the office or at home visible to clients, staff, or others who do not have a need to know? Staff whose tasks involve data entry about clients should tilt the screen away from view, and a screen shield should be used. When using a laptop during travel, a screen shield should also be used to avoid intentional eavesdropping by others and to protect client names from the public. Are computers password protected? One’s home computer should be password-protected from family, friends, and guests. This concept applies to the work setting as well, and using the “need to know” principle can be helpful in gauging who should have access to the work computer. At the very least, the computer should be password-protected to prevent easy access to confidential information, particularly if the laptop or PDA is one’s main personal computer, because it is at higher risk of being stolen. Additional precautions can include password-protecting document files and/or placing the files in encrypted storage that may be on the hard drive or hosted on the Internet via a third-party server. HIPAA-compliant file storage service is available at minimal cost. Is the facsimile machine in an area of the office or home that offers confidential receipt of documents? Staff who do not have a need-toknow basis should not have access to incoming fax documents. If the practitioner works from home, the fax machine should be in a locked office. The fax can often be set not to print until activated by the recipient. These are important factors to consider when designing work flow in the work and home office setting. Is the practitioner discussing confidential client information via a cell phone? Cell phone conversations are not a secure and confidential mode of communication. If a client calls with confidential information, or a collateral source returns a phone call, the caller should be advised of this, and every effort should be made to communicate in an alternative secure fashion. Landline phones are secure and VoIP (Voice over Internet Protocol) phone conversations via services such as Skype are secure and encrypted. Does the practitioner use e-mail to confirm appointments and disseminate/receive information? Forensic evaluators may receive initial enquiries through e-mail. When responding, the evaluator should consider whether they are encouraging an open line of communica64 THE FORENSIC EXAMINER® Spring 2009

tion that is not secure. Standard e-mail is not secure or encrypted. Evaluators should make every effort to use encrypted e-mail with clients or collateral sources to protect the confidentiality of all parties (“Advice on Group Coverage”, 2003). Intake forms, contractual agreements, and other seemingly innocuous documented information should not be passed through unencrypted e-mail (National Board for Certified Counselors, 2005). Many may think it unlikely that an e-mail will be intercepted, but the likelihood of someone breaking into one’s office and stealing files is slim as well. Still, as professionals, we generally take certain precautions and keep files in locked file cabinets. Is the practitioner using instant messaging (IM) or chat programs such as AOL or Yahoo? Although these IM or chat programs offer a convenient way to communicate, the service is not secure and encrypted (American Counseling Association, 2005). Best practice standards regarding e-mail are applicable to IM chat as well. Because we now know that e-mails can be traced and that chat room participants can be found (Manes, 2007), encryption is the electronic equivalent of the locked filing cabinet. Has the practitioner incorporated these communication and confidentiality issues into the informed consent process? Allowing the client to understand the limitations of certain forms of communication encourages best practice, protects the client, and minimizes risk to the forensic mental health professional.

Conclusion Forensic mental health practitioners work in different settings under different guidelines and authorities, including codes of ethics, licensing scopes of practice, and HIPAA regulations. Although one practitioner may not be mandated to comply with certain ethics or laws, all mental health practitioners should use guidelines and laws as formulation for “best practice.” In doing so, forensic mental health practitioners avoid risks in the form of libel, slander, and breach of confidentiality.

References Advice on group coverage, email use. (2003, May 16). Psychiatric News, 38(10), 36. American Counseling Association. (2005). ACA code of ethics. Retrieved September 10, 2007, from http:// www.counseling.org/Resources/CodeOfEthics/TP/ Home/CT2.aspx International Society for Mental Health Online. (2000). Suggested principles for the online provision of mental health services. Retrieved September 10, 2007, from http://www.ismho.org/ builder/?p=page&id=214 Manes, G. (2007). Digital forensics in the twentyfirst century. The Forensic Examiner, 16(4), 17. National Board for Certified Counselors and Center for Credentialing and Education. (2005). The practice of Internet counseling. Retrieved September 10, 2007, from http://www.nbcc.org/assetmanagerfiles/ethics/internetcounseling.pdf n

Earn CE Credit To earn CE credit, complete the exam for this article on page 65 or complete the exam online at www.acfei.com (select “Online CE”).

About the Author DeeAnna Merz Nagel, LPC, DCC, CFC, is a psychotherapist, educator, and consultant. She maintains a private practice in Rumson, NJ. As a member of the ACFEI Forensic Counseling Advisory Board and past president of the International Society for Mental Health Online, she is keenly aware of the forensic mental health professional’s responsibilities with regard to technology. Her specialties include the impact of technology on mental health including internet addictions and social media. Kate Anthony, MSc, FBACP, is CEO of OnlineCounsellors.co.uk, offering consultancy, training, and research on online counseling, psychotherapy, and the use of technology in mental health. She is past president of the International Society for Mental Health Online and ambassador for technology for the British Association for Counselling and Psychotherapy. She is co-editor of “Technology in Counselling and Psychotherapy: A Practitioner’s Guide” with Dr. Stephen Goss (Palgrave 2003). DeeAnna and Kate are co-founders of the Online Therapy Institute, which can be accessed at www.onlinetherapyinstitute.com.

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CE ARTICLE 5: Forensic Mental Health and Technology: (pages 62–64) ATTENTION ACFEI MEMBERS: Journal-Learning CEs are now FREE when taken online. Visit www.acfei.com. TO RECEIVE CE CREDIT FOR THIS ARTICLE

CE ACCREDITATIONS FOR THIS ARTICLE

In order to receive one CE credit, each participant is required to

This article is approved by the following for continuing education credit:

(ACFEI) The American College of Forensic Examiners International provides this continuing education credit for Diplomates.

KEY WORDS: technology, confidentiality, encryption

LEARNING OBJECTIVES After studying this article, participants should be better able to do the following:

1. List ways to protect client information when performing data entry or storing the information on the hard drive. 2. Identify forms of communication that may pose a risk to a breach of client confidentiality. 3. Understand the importance of proper client informed consent with regard to the use of technology.

TARGET AUDIENCE: PROGRAM LEVEL: DISCLOSURE: The authors have nothing to disclose. PREREQUISITES: none

ABSTRACT Many forensic mental health practitioners, including psychologists, psychiatrists, counselors, and social workers, utilize technology on a daily basis. Forensic mental health professionals should become familiar with ethical and legal responsibilities concerning confidentiality and the use of technology such as telephone, cell phone, fax, e-mail, and chat. Becoming cognizant of the benefits and hazards in utilizing technology will enhance the forensic practitioner’s ability to practice risk management within his or her particular work setting.

POST CE TEST QUESTIONS

(Answer the following questions after reading the article)

1. True or false: All forensic mental health professionals are required to follow the HIPAA Security and Privacy Act. a. True b. False

4. True or false: Chat room participants in an unencrypted environment can be traced. a. True b. False

2. True or false: A computer screen shield can help prevent a breach of client confidentiality. a. True b. False

5. True or false: Voice-over Internet Protocol (VoIP) is not a secure and encrypted form of communication. a. True b. False

3. True or false: The location of the facsimile machine is of little consequence when protecting client information. a. True b. False

6. True or false: Client informed consent should include the limits of confidentiality with regard to the use of technology. a. True b. False

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Case Study

False Rape Allegations: An Assault On Justice By Bruce Gross, PhD, JD, MBA Of the 90,427 forcible rapes reported in 2007, 40% were cleared by arrest or “exceptional means” (FBI, 2008d) with 23,307 of those being arrests (FBI, 2008b). Clearance of a report by exceptional means occurs when the known suspect dies before an arrest is made, when the victim refuses to provide the information or assistance necessary to follow an investigation through to an arrest, or when the known suspect is being held in another jurisdiction for a different crime and extradition is denied. In order to clear a case by exceptional means, the officers must have an identified suspect, know where he can be found, and have enough evidence for a legal arrest.

Degrees of “Not True”

n 2007, there were 255,630 incidents of rape and sexual assault in the United States (BJS, 2008a). Of those, 90,427 were forcible rapes (FBI, 2008c). This represents one forcible rape occurring somewhere in the United States every 5.8 minutes (FBI, 2008a). Persons in the age group of 12 to 19 were raped and sexually assaulted at a significantly higher rate than any other age group (Tjaden & Thoennes, 2000; BJS, 2008b). 66 THE FORENSIC EXAMINER® Spring 2009

A certain percentage of rape complaints are classified as “unfounded” by the police and excluded from the FBI’s statistics. For example, in 1995, 8% of all forcible rape cases were closed as unfounded, as were 15% in 1996 (Greenfeld, 1997). According to the FBI, a report should only be considered unfounded when investigation revealed that the elements of the crime were not met or the report was “false” (which is not defined) (FBI, 2007). This statistic is almost meaningless, as many of the jurisdictions from which the FBI collects data on crime use different definitions of, or criteria for, “unfounded.” That is, a report of rape might be classified as unfounded (rather than as forcible rape) if the alleged victim did not try to fight off the suspect, if the alleged perpetrator did not use physical force or a weapon of some sort, if the alleged victim did not sustain any physical injuries, or if the alleged victim and the accused had a prior sexual relationship. Similarly, a report might be deemed unfounded if there is no physical evidence or too many inconsistencies between the accuser’s statement and what evidence does exist. As such, although some unfounded cases of rape may be false or fabricated, not all unfounded cases are false. The term “unfounded” is not a homogeneous classification and, to date, there is not a formalized, accepted definition of “false rape allegations.” Certainly, the designation of false accusation should not include those situations in which the accuser was raped but unintentionally identified the wrong person as the alleged perpetrator. The definition of false allegation of rape cannot be limited to the situation in which the victim recants the accusation. There are women who were truly raped but for any number of reasons choose to recant. On the other www.acfei.com

hand, there are women who were not raped but do not recant their accusation. Perhaps the designation of false allegation might best be used exclusively for those cases in which it is determined that the accuser intentionally fabricated the allegation of rape. That is, the accuser claims an incident of forced sexual contact took place when no such incident occurred, or the contact that did occur was consensual. In addition, this would include cases in which a rape was committed, but the victim knowingly identified the wrong person as the perpetrator. Just as there continues to be strong resistance to the fact that some children (for a variety of reasons) lie about having been sexually molested or assaulted, the judicial system, mental health practitioners, and the public at large are reticent to accept that some women (and men) lie about having been raped. However, there is ample evidence that adults lie about virtually anything, including grave matters that have serious consequences for others.

Crying Rape Although there is no doubt that false rape allegations occur, it is extremely difficult to determine what percentage of rape reports is intentionally false. This is due to many factors, including jurisdictional variation in definition, criteria, and report-

The researchers further investigated those cases that the police, through their investigation, had ultimately determined were “false” or fabricated. During the follow-up investigation, the complainants held fast to their assertion that their rape allegation had been true, despite being told they would face penalties for filing a false report. As a result, 41% of all of the forcible rape complaints were found to be false. To further this study, a similar analysis was conducted on all of the forcible rape complaints filed at two large midwestern public universities over a 3-year period. Here, where polygraphs were not offered as part of the investigatory procedure, it was found that 50% of the complaints were false. Charles P. McDowell, a researcher in the United States Air Force Special Studies Division, studied the 1,218 reports of rape that were made between 1980 and 1984 on Air Force bases throughout the world (McDowell, 1985). Of those, 460 were found to be “proven” allegations either because the “overwhelming preponderance of the evidence” strongly supported the allegation or because there was a conviction in the case. Another 212 of the total reports were found to be “disproved” as the alleged victim convincingly admitted the complaint was a “hoax” at some point dur-

“THERE IS AMPLE EVIDENCE THAT ADULTS LIE ABOUT VIRTUALLY ANYTHING, INCLUDING GRAVE MATTERS THAT HAVE SERIOUS CONSEQUENCES...” ing practices, as well as the fact that not all rapes are reported. Although the FBI had set 8% as the average rate of false (actually, unfounded) accusations during the late 1990s, there is remarkable variation in the estimates of false allegations of rape found in the literature (Kanin, 1994; Epstein, 2005). A review of those studies on false rape accusations conducted between 1968 and 2005 showed a percentage range from 1–90% (Rumney, 2006). Very little formal research has been conducted on the prevalence of false allegations of rape. One study looked at the 109 cases of forcible rape that were disposed of in one small midwestern town between 1978 and 1987 (Kanin, 1994). The given town was specifically selected for study because the police department used a uniquely objective and thorough protocol when investigating rape complaints. Among other procedural safeguards, officers did not have the discretion to drop rape investigations if they concluded the complaint was “suspect” or unfounded. Every rape accusation had to be thoroughly investigated and included offering a polygraph to both the accuser and the accused. Cases were only determined to be false if and when the accuser admitted that no rape occurred. (800) 592-1399

ing the initial investigation. The researchers then investigated the 546 remaining or “unresolved” rape allegations including having the accusers submit to a polygraph. Twenty-seven percent (27%) of these complainants admitted they had fabricated their accusation just before taking the polygraph or right after they failed the test. (It should be noted that whenever there was any doubt, the unresolved case was re-classified as a “proven” rape.) Combining this 27% with the initial 212 “disproved” cases, it was determined that approximately 45% of the total rape allegations were false. Unfortunately, like the two studies presented here, the empirical studies that exist on the frequency of false rape allegations are sparse in number and have notable limitations. Small sample sizes and non-representative samples preclude generalizability. Regardless, the mere number of publicized incidents of false accusations of rape over the last two decades indicates not only a need for further investigation into the problem, but a better understanding of how to identify such cases.

ADDITIONAL INFO There are several online resources devoted to increasing awareness of the fact that false rape accusations are an all-too-common reality. The moderators of these information sites provide a wealth of articles, links, and statistics on false rape charges. One Web site is www. falserape.net. Falserape.net provides news briefs on publicized cases of false rape, links to other in-depth articles, and a list of helpful books on the subject. An additional section addressing legal issues is also available. The Web site states that it was created by a concerned mother to increase awareness that women sometimes make false rape charges and destroy the lives and reputations of innocent men, while the false accusers face no repercussions. For more information, please visit www.falserape.net.

Spring 2009 THE FORENSIC EXAMINER® 67

“APPROXIMATELY 50% OF THE WOMEN WHO FILED FALSE REPORTS CLAIMED THEIR ASSAILANT WAS A STRANGER OR SOMEONE THEY KNEW INDIRECTLY (BUT WHOSE NAME SHE NEVER KNEW OR COULDN’T REMEMBER).”

The Truth Behind the Lie

Telling a Lie from a Truth

As with all of human behavior, there are numerous reasons why a person would lie about being raped. In the study of false rape allegations in the midwestern town and state universities, over half of the accusers fabricated the rape to serve as a “cover story” or alibi. This included 56% of the non-student and 53% of the student false accusers. The most frequent context and motive for the fabricated rape was consensual sex with an acquaintance that led to some sort of problem for the accuser. The perceived problem was typically something that caused feelings of shame and guilt in the accuser (such as contracting a sexually transmitted disease or becoming pregnant), which was bound to be discovered and received negatively by family or friends. Approximately half of the accusers who were motivated by a need for an alibi identified the alleged rapist. Their goal was not to harm or cause problems for the acquaintance, but to protect themselves in what they perceived to be a desperate situation. As with most lies, the false rape accusation allowed the accuser to deny responsibility by creating an alternate reality into which to escape. The next most common reason for lying about being a victim of rape was revenge, rage, or retribution. In the Midwest study, this included 27% of the non-student and 44% of the student accusers. In these cases, the false victim had suffered some real or perceived wrong, rejection, or betrayal by the alleged rapist. As the purpose of making the accusation was to obtain some measure of revenge, the “suspect” was always identified. Researchers in the Air Force study also found that spite or revenge and the need to compensate for a sense of personal failure through an alibi accusation were the primary motives for false rape reports. There are a range of other reasons why women made false allegations of rape. For some, it was to meet the overwhelming need for attention often associated with Munchaussen Syndrome or Borderline Personality Disorder. In those cases a specific suspect was seldom identified. Others filed false reports in an attempt to essentially “extort” money from the accused, who was typically wealthy. Because the goal was financial, the accuser was typically not motivated to pursue the case through formal legal channels, preferring to push for a settlement. As with certain false allegations of child sexual abuse, false allegations of rape may be the unfortunate byproduct of “recovered memory therapy.” False allegations (of child abuse and domestic violence, as well as rape) are also known to arise in the context of divorce and disputed child custody. Within the context of the military, false reports of rape may be filed in order to avoid deployment to war zones.

McDowell’s research into the prevalence of false rape allegations provided some direction for the difficult responsibility of differentiating between a potentially true and a possibly false report of rape. McDowell compared the initial rape accusations made by “proven” victims with those made by “disproved” complainants. His analysis revealed a number of notable differences between the two groups. That is, there were certain characteristics or indicators that were found with greater frequency in baseless reports than in proven reports. For example, in terms of the initial disclosure, unlike false accusers, true victims tend to go directly to law enforcement to file a report. False accusers are more apt to tell family members or close friends, who either report the rape themselves or push the victim to do so. In discussing the alleged rape, false accusers may be unable to provide detailed descriptions of the rape or may provide too much detail. Although a significant number of true rape cases include numerous sexual acts in addition to penile penetration, those fabricating allegations of rape tend to describe very limited and narrow sexual activity. False accusers may describe the incident with inappropriate affect, such as pleasure or even pride. Because they may have never actually suffered a rape, the allegations of false accusers may be physically improbable (if not impossible) or bizarre. Perhaps most telling are numerous inconsistencies between the accuser’s description of the rape and the presence or absence of physical evidence. Approximately 50% of the women who filed false reports claimed their assailant was a stranger or someone they knew indirectly (but whose name she never knew or couldn’t remember). Claiming an unknown perpetrator makes the rape random and perhaps more importantly, makes the case unsolvable. This, in turn, frees the false accuser from the need to fabricate additional lies and the demands of being confronted by the alleged assailant. Another 30% of false reporters identified their attacker as someone they “kind of knew.” In comparison, 75% of proven victims knew and were able to identify their rapist. It seems that the quality of physical injuries may be the most significant of all indicators. According to McDowell’s findings, the physical injuries sustained by false victims tend to be inconsistent or “odd.” Because the injuries are self-inflicted, they seldom involve highly sensitive parts of the body, such as the vagina, nipples, lips, or eyes. Similarly, the injuries of false complainants seldom involve permanent injury or disfigurement. As the wounds are self-inflicted, they tend to be on parts of the body that are easily reached by the false accuser. There may be numerous lacerations and abrasions, all of which

68 THE FORENSIC EXAMINER® Spring 2009

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are comparatively minor in severity. Unlike the true victim, false accusers may seem comparatively indifferent or nonplussed by their injuries. As suggested above, for the vast majority of false reporters, the allegation of rape solved a perceived problem the accuser was, or anticipated, facing. The same cannot be said for proven rape victims as, for most, rape marks the onset of numerous, long-term, and not easily resolved problems. None of the factors identified by McDowell are individually or independently conclusive or diagnostic of rape. Rather, the presence of one or more of the criteria suggests the possibility of a false allegation that should be carefully and sensitively investigated and explored. To test the efficacy of his criteria, McDowell had three independent judges review all of the initially “unresolved” rape reports using his criteria. This group included the cases of those women who had admitted their allegation was fabricated when confronted with taking a polygraph. For a case to be classified as “unproved,” all three of the judges had to determine a given complaint was false. After the judges review, 65% of the cases in McDowell’s study were found to be false. There is no certainty that any or all of the indicators identified by McDowell will be present in rape reports that appear to be “suspect.” When present, however, they may serve to focus an investigation of the charges, as well as to guide the treatment of the alleged victim.

The Cost of the Crime In most jurisdictions the accuser must admit that the accusation was false before the charges against the suspect will be dropped. Yet before the accuser decides to recant, the life of the falsely accused may have been disrupted, if not destroyed. They may have suffered any number of inequities, such as being arrested and questioned; dealing with the expense of hiring an attorney; being subjected to time in jail; having trouble with their employer; and fall-out with family and friends, to name just a few. Even if the case is dropped, the reputation of the falsely accused may be irreparably harmed, because some people may believe the retraction was “pressured,” and not true. Worse yet for the accused, the case may go to trial. Even if the falsely accused are acquitted, technically that does not mean they are innocent, only that they could not be found guilty. Regardless of the outcome of a criminal trial, the accuser can pursue civil action against the accused, resulting in further loss of resources. The worst possible outcome for those falsely accused of rape might be conviction and incarceration. There is no way of knowing the number of defendants who have been convicted of rape on the (800) 592-1399

A Selection of McDowell’s Indicators of False Rape Allegations: Physical injuries of false accusers usually are limited to superficial cuts, scratches, and abrasions. Scratches often appear in a hatching or crosshatching pattern, due to repeated attempts to make the scratches visible. Scratches that resemble letters or words sometimes are found on false accusers, typically on their abdomens, but are not found on actual victims. False accusers frequently claim that they offered vigorous and continuing physical resistance but suffered no serious reprisals. Most actual rape victims do not offer vigorous resistance, and those who do often suffer extremely brutal reprisals. A false accusation typically solves some perceived problem for the “victim.” It may explain a pregnancy or venereal disease, or it may exact revenge. In contrast, actual rapes seldom appear to solve a problem. They usually create serious problems. False accusers usually do not make their allegations initially to authorities. Typically they make them to friends or relatives who in turn inform the authorities. False victims, more often than actual ones, claim to have been raped by strangers. False accusers, much more often that actual ones, claim to have been attacked by multiple assailants who fit an unsavory stereotype. False accusers typically claim to have been victims of simple penile insertions, or blitz rapes, without collateral sexual activity. False accusers tend to be vague on the details, but when a false victim does provide details she tends to do so with a relish that actual victims seldom have. False accusers, far more frequently than actual victims, cannot say exactly where the rape occurred. In false accusation cases, far more frequently than in actual cases, the purported crime scene and the physical evidence are found to be inconsistent with the allegation. False accusers, more often than actual victims, claim to have received phone calls from their “rapists” before or after the crime. False accusers, more often than actual victims, have personal problems, including difficulty in interpersonal relationships and a history of lying and exaggeration. [Source: (1985). Chicago Lawyer ]

Spring 2009 THE FORENSIC EXAMINER® 69

basis of a false allegation. One study found 28 cases in which the defendant had been convicted and served an average of 7 years in prison before being exonerated by DNA evidence (Connors et al., 1996). Of note, all 28 cases involved sexual assault with the trials taking place in the mid- to late1980s when DNA was not routinely tested. According to the Innocence Project, since 2000 there have been 156 cases of post-conviction exonerations based on DNA testing, an untold number of which involved sex crimes (Innocence Project, 2008). The average time the wrongfully convicted person served prior to release was 12 years. Regardless of the exact number, processing those who have been falsely accused of rape is a clear waste of legal, judicial, and penal resources. Essentially, there are no formal negative consequences for the person who files a false report of rape. Not only did the false allegation serve a purpose for the accusers, they actually never have to fully admit to themselves, their family, or their friends that the report was a lie. Although there are grounds for bringing legal action against the accuser, it is virtually never done. Even should a charge be filed, in most jurisdictions filing a false report is only a misdemeanor. When rape cases go to trial, alleged victims are protected by “rape shield statutes.” In brief, these statutes are designed to prevent defense attorneys from using the accuser’s sexual history “against” her. At the same time, these rape shield laws may suppress evidence related to the woman’s history that is relevant to the issue before the court. In particular, they have been used to exclude prior false accusations of rape filed by the alleged victim. Although courts have ruled inconsistently on this issue, there is legal foundation for admitting prior false accusation into evidence in criminal proceedings (Epstein, 2005). In a step toward ensuring justice, perhaps when there is proof of prior false reports, they should be allowed in. Before this can happen, guidelines would need to be established regarding the definition of a “false rape accusation” and the criteria for proof of prior acts. Similarly, consideration should be given to making the filing of a false report of rape a felony, rather than a misdemeanor. Finally, instituting the possibility of a “not guilty and not credible” verdict might provide some recovery for the falsely accused and a clear warning to the false complainant. 70 THE FORENSIC EXAMINER® Spring 2009

In the End Although it may not be “politically correct” to question the veracity of a women’s complaint of rape, failing to consider the accuser may be intentionally lying effectively eradicates the presumption of innocence. This Constitutional right is especially significant when dealing with allegations of rape as in most jurisdictions, sex offenses are the only crimes that do not require corroborating evidence for conviction. Because there are often no witnesses and no physical evidence (especially if the victim delays in filing a report), the case may come down to the credibility of the accused versus the credibility of the accuser. There is a fine line between supporting victims and protecting the rights of the accused. Yet, considering the unique challenges of trying and defending rape cases combined with the potential costs to the falsely accused, being able to assess the credibility of the alleged victim takes on special importance. Inconsistencies in the accuser’s complaint should be confronted gently and respectfully, with awareness of the fact that true victims may distort or even lie out of embarrassment or shame.

References

Bureau of Justice Statistics (BJS). (2008a). Personal crimes, 2006: Number of incidents and victimizations and ratio of victimizations to incidents, by type of crime. (Table 26). Criminal Victimization in the United States, 2006. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Retrieved from http://www.ojp.usdoj.gov/bjs/pub/pdf/ cvus/current/cv0626.pdf Bureau of Justice Statistics (BJS). (2008b). Personal crimes, 2006: Victimization rates for persons age 12 and over, by gender and age of victims and type of crime. (Table 4). Criminal Victimization in the United States, 2006. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Retrieved from http://www.ojp.usdoj.gov/bjs/pub/pdf/ cvus/current/cv0604.pdf Connors, E., Lundregan, T., Miller, N., & McEwen, T. (1996). Convicted by juries, exonerated by science: Case studies in the use of DNA evidence to establish innocence after trial. (NCJ-161258). Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. Epstein, J. (2005). True lies: The constitutional and

evidentiary bases for admitting prior false accusation evidence in sexual assault prosecutions. (Paper 697). Retrieved from http://www.law.bepress.com/expresso/ eps/697 Federal Bureau of Investigation (FBI). (2007). Methodology. Uniform Crime Report: Crime in the United States, 2006. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Retrieved from http://www.fbi.gov/ucr/cius2006/methodology.html Federal Bureau of Investigation (FBI). (2008a). Crime Clock, 2007. Uniform Crime Report: Crime in the United States, 2007. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Retrieved from http://www.fbi.gov/ucr/cius2007/ about/crime_clock.html Federal Bureau of Investigation (FBI). (2008b). Estimated number of arrests, U.S., 2007. (Table 29). Uniform Crime Report: Crime in the United States, 2007. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Retrieved from http://www.fbi. gov/ucr/cius2007/data/table_29.html Federal Bureau of Investigation (FBI). (2008c). Offense analysis, U.S., 2003-2007. (Table 7). Uniform Crime Report: Crime in the United States, 2007. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Retrieved from http://www.fbi. gov/ucr/cius2007/data/table_07.html Federal Bureau of Investigation (FBI). (2008d). Percent of crimes cleared by arrest or exceptional means, 2007. (Clearance Figure). Uniform Crime Report: Crime in the United States, 2007. Washington, D.C.: U.S. Department of Justice, Federal Bureau of Investigation. Retrieved from http://www.fbi.gov/ucr/cius2007/offense/ clearances/index.html#figure Greenfeld, L. A. (1997). Sex offense and offenders: An analysis of data on rape and sexual assault. (NCJ-163392). Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Innocence Project. (2008). Facts on post-conviction DNA exonerations. Retrieved from http://www.innocenceproject.org/Content/351.php# Kanin, E. J. (1994). False rape allegations. Archives of Sexual Behavior, 23(1), 81–92. McDowell, C. P. (1985). False allegations. Forensic Science Digest, 11(4), 56–76. Rumney, P. N. S. (2006). False allegations of rape. The Cambridge Law Journal, 65(1), 128–158. Tjaden, P., & Thoennes, N. (2000). Full report of the prevalence, incidence, and consequences of violence against women (research report): Findings from the National Violence Against Women survey. (NCJ 183781). Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice. n

New Members and Fellows

Welcome New ACFEI Members! New Members Jack D. Aberbook Rhonda Ackerman Bakare Q. Adeshina Richard F. Allen Mark Archer Bart Baggett Paula N. Barber Richard A. Barber Joyce B. Bartlett Noelle J. Black Ruth S. Brayer Marta J. Brooks Robert A. Busch Jessica L. Campbell William Campbell Raffael Carnesecchi Katherine E. Chase Zhaoming Chen Louise Cleary Sue N. Clement Richard Conti Sandra K. Copas Victoria Corum Richard J. Damiani Cory Dietz Janet C. Donoghue Stacy L. Elder Robert A. Evans Preston H. Evers Hugh Fox Amy M. Garcie David J. Garver Matthew C. Gilbert Glenn B. Goe Rudolph Gonzalez Jr. Samuel David Handwerger Thomas E. Healy Angela Hilliard Heather R. Hollandsworth Lisa J. Houston James Igoche Debra S. Jensen BJ Johnson Robert D. Jones Vanora M. Kean Robert F. Knapp Tiffany LaBine Rodney M. Largent Grace P. Lee G K’Hill Lesemann Karen Livornese Jody L. Lurie Lydia Marie Marruffo Ramon B. Mendoza (800) 592-1399

Eric R. Neal Kimberly A. Nelson Ron G. Nicolet Kathleen L. O’Brien David F. O’Connell Mariam A. Oduwole Kofi Owusu-Bona Michael A. Patino Paula Bresset Pejsa Samantha A. Pitman Constance Powers Peter S. Probst William M. Quinn Stephen Reich Todd Rielly Steven G. Roberts Craig Paul Schott Jennifer Erin Schwaner Allan B. Schwartz Shannon L. Selby-Lopes Jeff M. Smith Jim Smith Erin Sturla Kathy Marie Sullivan Marcia D. Swartz David Tai Wai Lai Amy Kay Tate Harvey Tenenbaum Robert S. Usui William H. Vasilakis Amity S. Wing New Diplomates Andrew S. Griffith Gregory A. Harrison Ronald James Panunto New Fellows Richard W. Barnes Jeff Bazyler Glen J. Belush James F. Berger Jesse Allen Carter Beth A. Caton Robert L. Chastain Alan H. Chenman Robert D. Church H. Harvey Cohen Stephen Paul Combs Ted Coopersmith Justin Dell Crosslin Bruce Fitell Donna S. Fleitas David V. Foster Merritt W. Foster

Douglas E. Fountain George C. Frank Bentley Gubar Rick P. Harding Martin L. Hopp Victoria L. Ibric Marc S. Kreiter Melvyn M. Leifert Elwood I. Lerman Margarita Lermo Mark D. Losagio Thomas D. Lund Dale S. Majhanovich Edwin C. Malixi Alexander M. Mazratian Jean A. McCutchan Michael Craig McDaniel Peter J. Monteyne Sahaschai Musikabhumma Dennis S. Neier Abraham Nievod Issac Nwachuku Kathleen A. O’Connor Robert N. Page Edward M. Perreault Roderick P. Perron Harold Persaud Rose Marie A. Pitt John W. Salm Russell E. Scabbo Peter K. Shah Terence H. Sims Kim A. Skibsted Lloyd A. Sparks Gary M. Starkman John W. Theriot Frederick J. Tomkins Christopher Thomas Trigani C. Van Rosen Bud L. Vick Robin A. Wetherell New Life Member Stacy L. Elder

Spring 2009 THE FORENSIC EXAMINER® 71

National Criminal Justice Reference Service

NCJRS: A Leading Research Tool for Forensic Scientists Since 1972 By: Albert J. Irion, Content Specialist, NCJRS Want to stay connected with a Web site that provides comprehensive resources related to forensic science? The National Criminal Justice Reference Service (NCJRS) interactive Web site (www.ncjrs.gov) has been designed specifically to provide information on criminal justice to researchers and practitioners and is a great way to learn about grants and funding opportunities, training, publications, and other new developments in the field of forensic science. NCJRS is federally funded by agencies within the Office of Justice Programs, the U.S. Department of Justice, and the Office of National Drug Control Policy. NCJRS services and resources are available to anyone interested in criminal justice and crime prevention, corrections, law enforcement, juvenile justice, victim assistance, and public safety, including policymakers, practitioners, researchers, educators, community leaders, and the general public. Looking to apply for Federal funding for your organization? The Forensic Science Spotlight section features information about 72 THE FORENSIC EXAMINER® Spring 2009

grants and funding opportunities, as well as programs, publications, legislation, facts and figures, training and technical assistance, and other resources related to such topics as digital forensics, DNA testing, forensic facilities, and forensic investigations. The NCJRS Web site features topical pages on forensics (www. ncjrs.gov/forensics) and DNA (www.ncjrs. gov/dna) that can assist you with many of your research and reference needs. In these sections, you will find answers to frequently asked questions; publications from our sponsor agencies, including the National Institute of Justice, the Bureau of Justice Statistics, and the Office for Victims of Crime; and related links to other agencies and organizations. Interested in finding Federal, state, and local government reports; books; research reports; journal articles; and unpublished research? The NCJRS Abstracts Database Library contains more than 5,000 documents related to forensic science. The Library offers more than 300 resources related to crime scene investigation and more than

1,200 resources related to forensic DNA and DNA evidence. Seeking ways to improve the management of your crime laboratory? The National Institute of Justice report Increasing Efficiency in Crime Laboratories is among the many library resources you may find helpful. Want to reduce your agency’s DNA evidence backlog? Search the database for resources on this topic and you will find the Law Enforcement Technology article Reducing the DNA Backlog: Florida Involves Local Law Enforcement to Prescreen Evidence and the National Institute of Justice report Expert Systems Help Labs Process DNA Samples. We encourage you to visit the NCJRS Library (www.ncjrs.gov/library.html) the next time you are conducting research. Have you or your organization recently published a book, article, or other document? Consider contributing your publication to the NCJRS library collection. NCJRS accepts complimentary materials and welcomes suggestions for our collection from both governmental and nongovernmental agencies and organizations. Including your materials in our collection will enable you to reach a broad international audience. NCJRS staff will develop a 250–300 word abstract for your material and tag it with keyword index terms to ensure that users searching our site, as well as public search engines such as Google or Yahoo, will be able to find your material. Best of all, this service is available at no charge! If you would like to learn more about contributing to the NCJRS library, please visit www.ncjrs.gov/library/contribute.html. Searching for conferences, seminars, and other events in your area? Visit the NCJRS Justice Events Calendar. This online tool enables users to search for events by topic and location. Hosting an event? Promote it for free through the NCJRS calendar. Thousands of your colleagues use the calendar each month to learn about upcoming events and to share events with others. Looking for information on the use of DNA to solve property crimes? NCJRS offers extensive reference and referral services to help you find the answer to this question, as well as additional questions related to criminal justice research, policy, and practice. Use the Search Questions & Answers feature to access hundreds of queries related to forensic science, juvenile and criminal justice, law enforcement, and NCJRS services. NCJRS has been your information partner since 1972. The NCJRS Web site offers you a free and easy way to locate informawww.acfei.com

tion about grants and training opportunities, stay informed about new developments in forensic science technologies, and learn about research important to your field. By registering with NCJRS, you will receive: • JUSTINFO: A bi-weekly electronic newsletter that includes funding announcements, links to full-text publications, notices of upcoming training opportunities and conferences, and other resources. • E-mail notifications about new publications and resources that match your specific areas of interests. • Periodic mailings of publications that match your interests. • The Justice Resource Update: A quarterly publication that highlights NCJRS Partner Agency announcements. • RSS feed: Receive notice of NCJRS home page updates, which include announcements, publications, upcoming events, and more. n

(800) 592-1399

www.ncjrs.gov About NCJRS NCJRS is federally funded by agencies within the Office of Justice Programs, U.S. Department of Justice, and the Office of National Drug Control Policy. NCJRS offers justice and substance abuse information to support research, policy, and program development worldwide. Visit the NCJRS registration page (www.ncjrs.gov/reg) to sign up and join the more than 5,000 forensic science researchers and practitioners who stay connected through NCJRS. Should you ever require assistance, the NCJRS staff will be happy to assist you. Please contact us at: Phone: (800) 851–3420 • TTY: (877) 712–9279 • Fax: (301) 519–5212 • Web: www.ncjrs.gov/contact

Spring 2009 THE FORENSIC EXAMINER® 73

Books by ACFEI Members

Forensic Cremation: Recovery and Analysis By Scott I. Fairgrieve, PhD

s Forensic Cremation: Recovery and Analysis, by Scott I. Fairgrieve

s Executive Protection: New Solutions for a New Era, by Robert L. Oatman

s Forensic Psychology and Neuropsychology for Criminal and Civil Cases, edited by Harold V. Hall

For many, picking up clues by examining human remains may seem like something to be left to the very experienced forensic expert. It is, after all, a highly technical art that may reveal make-or-break information regarding a crime scene investigation. In his book, Forensic Cremation: Recovery and Analysis, author Scott Fairgrieve discusses a methodical approach to the use of forensic anthropology as he takes the reader through the entire process from the point of discovery to the end of analysis. Forensic Cremation begins with an overview of cremated remains, or cremains, in the forensic setting. This chapter is designed to provide those new to forensic anthropology insight into the challenges that arise when dealing with the process of analysis. Other chapters include information on fire and combustion, the cremation process, scene recovery, laboratory analysis, heat-induced alterations of bone microstructure, incineration of dental tissues, and positive identification of cremains. Dr. Fairgrieve notes in his preface that the ultimate goal of an investigation of this kind is to identify who the individual was and also how, when, and where he or she died. He also remarks that as challenging as this recovery and analysis may appear, it is far from a hopeless situation. As forensic professionals—anthropologists in particular— better understand the implications of their fields of study, it is certain that the outcome will yield positive results. Forensic Cremation is an ideal resource for both the experienced forensic anthropologist and also the forensic scientist who wishes to gain insight into the exciting field of study. Scott I. Fairgrieve, PhD, received his Hons BSc in Anthropology from the University of Toronto, an MPhil in Biological Anthropology from the University of Cambridge (England), and a PhD in Anthropology (Human Skeletal Biology) from the University of Toronto. Currently, Dr. Fairgrieve is Chair of the Department of Forensic Science and an active member of the faculty. He has been a member of ACFEI since 2001.

Governmental authorities as well as global executives require specialists that provide the type of security they need to survive. In his 1997 book, The Art of Executive Protection, Robert L. Oatman discussed the increasing need for a new professional specialty, executive protection (EP). Executive Protection: New Solutions for a New Era is a follow-up to that book, and it focuses on the ways in which EP has changed since the terrorism-related events of 9/11. Oatman expands on both basic and advanced concepts and updates them for applicability in today’s global trade, international travel, corporate responsibility, and advanced technology fields. Written for those who provide protection and those who require it, the book begins with an examination of the world’s current threat trends. It then discusses the practical value of EP in a corporate environment and describes the techniques of the all-important risk assessment, on which any intelligent protection program must be based. Additional resources are located in appendices at the conclusion of the book. This supplemental information includes mail screening tips, a bomb threat card, and checklists for advance work. Bonus material includes online access to the advance checklists at www.rloatman.com. The goal of EP—and of this book—is to safeguard those who face above-average personal risk due to their high positions in business or government or the special characteristics of their family profile. Written simply, yet informatively, it is of vital importance for all involved in these types of situations. Robert L. Oatman, CHS-III, CPP, is one of the preeminent providers of executive protection (EP) in the United States. His firm, R. L. Oatman & Associates, Inc., has provided EP risk assessments, consultation, operations, and training around the world since 1989. He has been Certified in Homeland Security under the American College of Forensic Examiners since 2003.

Forensic Psychology and Neuropsychology for Criminal and Civil Cases Edited by Harold V. Hall, PhD, DABPS

Executive Protection: Solutions for a New Era

New

By Robert L. Oatman, CHS-III, CPP

s The First Human Bomb, by P. Chandra Sekharan

Certainly all individuals are equals, yet some require higher levels of protection than others.

74 THE FORENSIC EXAMINER® Spring 2009

Forensic scientists are regularly called upon to act as expert witnesses in a court of law. The testimony the consultant gives can have life or death consequences for not only the defendant, but also the career of the consultant. It is of utmost imwww.acfei.com

portance that the forensic psychologist understand the critical role he or she plays not only in this capacity, but in all other legal arenas. Divided into four organized parts, Forensic Psychology and Neuropsychology for Criminal and Civil Cases offers insight into the impact of modern behavioral science on the legal system. Part 1, titled Foundational Issues, includes sections on criminal responsibility evaluations, detecting malingering and deception in forensic evaluations, violence prediction and risk analysis, among others. Part II covers criminal-forensic evaluation, and it explores psychological consultion in hostage/ barricade crisis negotiation, mitigatory defenses, and mental retardation in the criminal justice system. Part III gives an overview of civil-forensic evaluation. Its chapters tackle more personal cases of custodial placement and child maltreatment parental assessments. Part IV consists of 19 appendices that provide information relevant to multiple chapters of the book as well as several full case studies that are supplements to specific chapters. Dr. Hall’s textbook provides a wealth of information for forensic psychologists on the most cutting-edge research concerning neuropsychological assessments. These assessments allow for greater understanding and evaluations in forensic psychology, making Forensic Psychology a needed resource for the behavioral science professional. Harold V. Hall, PhD, DABPS, is a Forensic Neuropsychologist and Director of the Pacific Institute for the Study of Conflict and Aggression. He has authored or edited 13 books, including Violence Prediction: Guidelines for the Forensic Practitioner, Detecting Malingering and Deception: Forensic Distortion Analysis, and Methamphetamine Abuse: Clinical and Forensic Aspects. He has been a member of ACFEI since 1996.

The First Human Bomb: The Untold Story of the Rajiv Gandhi Assassination By P. Chandra Sekharan, PhD, FACFEI, DABFE

“No observation is puerile or petty in forensic situations.” On May 21, 1991, a blast from a human bomb, or suicide bomber, killed Rajiv Gandhi at an election rally. This would be the first of its kind. As the principal scientific investigator, respected forensic scientist P. Chandra Sekharan has compiled a compelling story of the investigation into the assassina(800) 592-1399

tion of Rajiv Gandhi. The 2008 book furnishes details of sophistication and expertise that went into the first human bomb and brings out the gamut of techniques and skills that went into the forensic analysis and crime scene reconstruction. While Sekharan narrates his findings during the first few frenetic days as a dayby-day account, related scientific information is also interwoven. A section of the book focuses on the forensic techniques used in identifying the assassin and associates from their skulls, head models, and photographic evidence. Particular attention is paid to the definitions and characteristics of explosives that play a key role in terrorists’ activities. The book includes almost all the text, photographs, and illustrations that formed part of the original 176-page report Sekharan prepared for the case. The First Human Bomb reads like a piece of historical fiction, although in this case, the story is very much true. Dr. Sekharan has created a book that offers itself as an interesting read for the general book lover, as well as providing an additional source of information for the forensic community. P. Chandra Sekharan, PhD, FACFEI, DABFE, has 45 years of experience in consultacy, teaching, research and training in the field of forensic science. He has delivered lectures, key note addresses, and presented papers in several national and international seminars, conferences, and workshops. He is a Life Fellow of the American College of Forensic Examiners and has been a member since 1997. n

s Scott I. Fairgrieve

s Robert L. Oatman

s Harold V. Hall

s P. Chandra Sekharan

Have a book you would like reviewed? Mail it to:

Editor; The Forensic Examiner 2750 E. Sunshine St. Springfield, MO 65804 Be sure to include a press release.

Spring 2009 THE FORENSIC EXAMINER® 75

Falsely Accused

76 THE FORENSIC EXAMINER速 Spring 2009

www.acfei.com

The

Elephant Crime Lab in the

In less than a generation, breakthroughs and innovations in research and development have turned the stuff of science fiction into fact.

By Sheila Berry and Larry Ytuarte, PhD

(800) 592-1399

Computers, the internet, cell phones and their various combinations have changed our lives in ways unimaginable just twenty years ago. The use of science to answer legal questions—forensic science—has seen similar breakthroughs. DNA analysis comes first to mind, because its impact has been so dramatic, but innovations in other forensic scientific and medical techniques have been equally important. The public perception, certainly aided by television shows such as CSI: Crime Scene Investigation and a myriad of similar quasi-documentaries, is that forensic science is objective, reliable, independent and flawless. When the man or woman in the lab coat testifies, even if qualifying terms like “consistent with” or “similar to” are used, jurors hear absolute certainty. Richmond, Virginia criminal defense attorney Richard Baugh summed up this attitude when he told Style Weekly reporter Laura Lafay (July 6, 2005), “If you put God on the witness stand . . . and God’s testimony conflicted with the DNA evidence, everyone would automatically say, ‘Why is God lying like this?’”

Spring 2009 THE FORENSIC EXAMINER® 77

The blade, however, cuts both ways. The same scientific advances that make it possible to obtain convictions in decades-old “cold cases” have exonerated inmates imprisoned for half their lives or more, often on death row. University of Virginia School of Law Associate Professor Brandon L. Garrett (2008) determined that in more than half of the first 200 DNA exonerations, false or misleading forensic evidence led to the wrongful conviction. The fallibility of this perfect science has become painfully evident, as has the need for reform. Members of the legal and scientific communities have offered several explanations for the fallibility of scientific evidence offered in our courtrooms, along with fixes to address them. Backlogs of work, not enough analysts, inadequate physical plants, outdated equipment, and insufficient training and/or supervision are frequently cited problems; added funding is the number one cure. Some scientific premises and techniques, such as ear print analysis (Associated Press, 2001), have been rejected as junk, with no scientific basis, while others have come into and gone out of acceptance over the course of a few decades. Shaken Baby Syndrome (SBS) was initially defined by medical researchers in the U.K. in 1972 (Minns, 2004), and by the 1990s, retinal hemorrhages with specific characteristics were considered pathognomonic of shaking by many forensic pathologists and pediatric specialists. However, in the March 27, 2004, issue of the British Medical Journal, Patrick Lantz et al. examined that premise and concluded that it “cannot be supported by objective scientific evidence.” Researchers at the University of North Carolina-Chapel Hill further confirmed the Lantz conclusion when MRI studies conducted on infants during the first year showed minor brain bleeds in 26% of the children, but no indication of abuse or trauma (Fisher, 2007). It is now thought such brain bleeds are caused by the process of vaginal birth. Subjective analytic techniques have come under fire because they are, well, too subjective. DNA analysis has demonstrated the unreliability of microscopic hair comparison. Mark Webster (n.d.), a British forensic scientist, has remarked, “The trick with hair comparison is not to worry about using a comparison microscope. Use the flip of a coin instead, it’s much cheaper, easy to use both in the field and lab, and actually rather more accurate.” Microscopic fiber comparison appears to have no better accuracy, but it has not yet been challenged by a demonstra78 THE FORENSIC EXAMINER® Spring 2009

bly more reliable science like DNA. After 25 years, bullet lead analysis was abandoned by the FBI, because it is based on the faulty assumption that levels of trace elements such as silver, antimony, and tin are uniform in bullets manufactured in the same lot. The FBI concluded in 2005 that bullet manufacturing and distribution were too variable for the matching to be reliable (Piller, 2005). FBI Laboratory Director Dwight E. Adams, of course, says “we stand by the results of the reports we have already issued.” Fingerprint identification has been the evidentiary gold standard in U.S. courts for a century, and fingerprint analysts testify to “100 percent confidence” in matches they make. Challenges to fingerprint identification as a pseudoscience met with sporadic success, but these efforts were analogous to chipping away Gibraltar with a chisel. Then, in March of 2004, came the spectacular misidentification of a fingerprint linked to the Madrid train bombing as that of Oregon attorney Brandon Mayfield—by not one, not even two, but three separate FBI examiners. Terry Green, Michael Wieners, and John T. Massey were “100 percent positive” that the print belonged to Mayfield, and when Spanish authorities questioned the identification, the FBI stood by its men and arrested Mayfield. Six weeks later, after Spanish police matched the fingerprint to an Algerian man, the FBI at last conceded error (Kramer, 2004). The Mayfield case illustrates not only the fallibility of subjective techniques such as fingerprint identification, but also the bias that colors scientific inquiry undertaken by analysts who are on the same “team” as law enforcement and/or prosecution. Messrs. Green, Wieners, and Massey are FBI special agents. The lab where they are employed is part of a police agency. They are, in simplest terms, cops in lab coats. Sometimes the bias is subtle. In the Mayfield case, special agents Green, Wieners, and Massey were almost certainly aware that Mayfield was a convert to Islam, married to a Muslim woman, and that as an attorney, he represented many Muslim immigrants seeking to live in the United States. An FBI affidavit filed in support of Mayfield’s arrest concedes there was no record of foreign travel by Mayfield, but concludes, “Since no record of travel or travel documents have been found in the name of Brandon Bieri Mayfield, it is believed that Mayfield may have traveled under a false or fictitious name.” This is classic “backward reasoning.” If the suspect is guilty, then the following must be

true. It is born of tunnel vision—a narrow viewpoint that focuses on evidence that fits one’s theory while discarding anything that conflicts with it—and when properly cultivated, backward reasoning masquerades as probative evidence. When it is an integral part of faulty expert testimony, it is a recipe for wrongful conviction. Funding, training, supervision, physical plants, backlogs, inadvertent error, and bias are all legitimate issues that directly impact the quality of the science presented in our courts, and they need to be addressed. It is logical to expect “subtle bias,” also called “inadvertent bias,” to occur in the work of analysts who are supervised by police or prosecutors. Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies, and this is a key reform promoted by The Justice Project (2008). But fixing these problems is only half the answer, because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud, evidence tampering, and/or perjury. This is the elephant in the crime lab. The notion of “inadvertent bias” is, in a strange way, a comforting term. Yes, it points to wrongdoing, but “inadvertent” implies “due to oversight” and “unintentional.” The forensic scientist guilty of “inadvertent bias” has really only made a mistake. Granted, the results of this kind of mistake can have devastating effects on the outcome of a trial. The innocent can be found guilty of a crime, and the guilty can be found innocent. But the notion of “inadvertent bias” softens the nature of the wrongdoing. It removes the possibility of deliberate action or criminal intent on the part of the forensic scientist or expert witness testifying at trial. We all make mistakes, right? If an expert witness were to knowingly give false testimony, then clearly, that would not be “inadvertent bias.” But does that really happen, as research suggests, half of the time when misleading scientific evidence is presented? Let’s take a look at a particular case. On the morning of November 10, 1991, a house went up in flames in Fort Stockton, Texas. The body of an elderly man named Bill Richardson was found in the debris after the fire was put out. For whatever reasons, arson was suspected. It was also believed that the person responsible for the crime was a woman named Sonia Cacy. Cacy was Bill Richardson’s niece. The body was transported from Fort Stockton to the Bexar County Forensic www.acfei.com

Science Center (BCFSC) in San Antonio for autopsy. This became the BCFSC’s Medical Examiner case # ME 1578-91. The Medical Investigator’s report, prepared after the arrival of the body at the BCFSC, reads: “… ITS [sic] UNKNOWN HOW THE FIRE GOT STARTED. THE JUDGE H A S REQUESTED AN ARSON INVESTIGATOR FROM LUBBOCK POLICE DEPARTMENT COME AND INVESTIGATE THE FIRE SCENE…TIME BODY ARRIVED @ MORGUE: 11-10-91 2310 HRS.” Because arson was suspected, the medical examiner performing the autopsy removed remnants of charred pants and underwear from the deceased. This sample was put into a container and sent down to the BCFSC’s Toxicology Lab for an arson analysis. The arson analysis involved a “purge and trap” technique: The sample was heated gently under a slight vacuum. Residual gasoline on the clothing remnants would have been released and pulled into a charcoal trap. The trap was rinsed with a solvent, and this solvent was subjected to analysis by gas chromatography/mass spectrometry (GC/MS). (800) 592-1399

Any traces of gasoline removed from the clothing would have been detected by the GC/MS analysis. The results of the analysis were an unambiguous “none detected.” The analysis did not find gasoline on the remnants of clothing. But the typed report read:

s FORENSICS KRT PHOTOGRAPH BY ALEX GARCIA/CHICAGO TRIBUNE, Earl Washington Jr., shown at his apartment in Virginia Beach, Virginia, came within nine days of execution for murder before he was taken off Death Row and later pardoned. Critics have questioned DNA tests performed by the Virginia state crime lab after Washington’s conviction. (lde) 2004

“Positive Class II Accelerant (i.e., gasoline, etc). Chemist: Joe Castorena” In February of 1993, Sonia Cacy stood trial for murder, accused of burning her uncle to death. The BCFSC’s Assistant Chief Toxicologist, Joe Castorena, testified as an expert witness for the prosecution. Under oath Castorena testified: “… it’s my opinion that there—there is a presence of an accelerant, and it is a class II accelerant.” Keep in mind: Gasoline is a class II accelerant. The prosecution’s theory was simple: Sonia Cacy had doused her uncle with gasoline while he was asleep and set him on fire. She then ran out of the house to save herself. The only forensic evidence introduced at trial that indicated the fire had been deliberately set was the written report of the analysis and Castorena’s testimony on the witness stand. Both false. The result? Cacy was found guilty of murder and sentenced to 99 years in prison. Spring 2009 THE FORENSIC EXAMINER® 79

Q. Did you rip off a piece and test it or did you test the entire content? A. No, I—I tested the entire content. In both a document submitted as evidence, and while giving testimony under oath, Castorena identified himself as the chemist who had performed the arson analysis. It’s not true. The analysis was performed by one of the lab toxicologists. The header information of the actual GC/MS chromatograms reads: ASSAY: ARSON FILE ID: DATA: 1578-91.D CASE NUMBER: ME: 1578-91, PANTS/UNDERWEAR DATE: 18 Nov 91 2:22 pm ANALYST: RODRIGUEZ, R. s FORENSICS KRT PHOTOGRAPH BY ALEX GARCIA/CHICAGO TRIBUNE, Lavelle Davis was sentenced to 45 years in prison for an Elgin, Illinois, murder after he was linked to a lip print found at the crime scene. One of the jurors called the evidence a “breakthrough,” but the FBI says lip print matching has never been validated. (lde) 2004

Something else to keep in mind: The written report submitted as evidence identified Joe Castorena as the “chemist.” And under questioning, Castorena identified himself as the person who had performed the analysis. From the transcript of Sonia Cacy’s trial:

Q. And when you did this test, did you—where is it now, the material that you tested? A. I—it’s at the laboratory. I didn’t bring it with me.

Sonia Cacy was found guilty of burning her uncle to death, and she was sentenced to prison for 99 years as the result of a false report and false testimony. Yes indeed, bad things can happen when expert witnesses don’t tell the truth. Was it intentional or merely a case of “inadvertent bias”? Clearly, only the person who

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performs a particular act really knows what was in his or her heart at the time the act was performed. Is it possible that Castorena, an “expert” in arson analysis, looked at an unambiguous negative test result and inadvertently called it positive? Is it possible that Castorena got confused and thought that he had performed an analysis when, in fact, someone else had? Such arguments could be made, but they would be flimsy arguments at best. The Cacy fire occurred in Fort Stockton, in Pecos County, Texas, about 300 miles from San Antonio, in Bexar County. The Bexar County Forensic Science Center is in no way under the auspices of, or controlled by, the Pecos County District Attorney’s Office or any other police agency or prosecutor’s office. The notion of a scientist yielding to subtle pressure because his job performance is evaluated by a senior official in the prosecuting attorney’s office or in the investigating police agency does not apply in this case. Removing crime labs from the control of police or prosecutors’ offices would not help in a case like this. The problems in the Sonia Cacy case arise from something else.

What might this “something else” be? If the false report and false testimony are not inadvertent, they are intentional. When a forensic scientist or expert witness knowingly files false reports, willingly lies on the witness stand, and if it is not a matter of pressure from local prosecutors or law enforcement, what can possibly be going on in his or her mind? The first forensic scientist to be nationally exposed for this type of conduct was Fred Zain. At the time of his exposure, Zain was the Chief Serologist at the BCFSC. He had been hired away from the West Virginia State Police Crime Lab, where his work as a serology analyst had made him enormously popular with police and prosecutors across the Mountain State. It all unraveled in 1992 when DNA testing cleared Glen Woodall of a Charleston, West Virginia, rape that had occurred in 1986. At trial in 1987, Zain testified that Woodall and the rapist had “identical blood types.” Woodall was released from prison, and shortly thereafter, he sued the state for false imprisonment. It was Woodall’s civil lawsuit that set in motion a chain of events that culminated in Zain’s indictment for perjury in both West Virginia and Texas, although statutes of limitations in both states

may have saved Zain from conviction (Inman & Rudin, 2000). Inman and Rudin tell us that Zain has become the “unfortunate poster child for unethical conduct in forensic science,” but many more have trod the same path and ended their careers in ignominy. Arnold Melnikoff. Melnikoff was the manager of Montana’s state crime lab when he testified that Jimmy Ray Bromgard’s hair was “almost indistinguishable” from hairs found at the scene where an 8-year-old girl was raped. Melnikoff told Bromgard’s jury there was only one chance in 10,000 that Bromgard was not the rapist. Fifteen years later, DNA showed that, in fact, Bromgard was not the rapist. Additional convictions based on his testimony were also overturned. By then, like Zain, Melnikoff ’s success on the witness stand had taken him to Washington, where he was working as a chemist for the State Patrol (Center for Investigative Reporting, 2007). Charles Vaughn. As a crime lab analyst in Oregon, he testified that trace evidence— blood specks and gunpowder flakes—connected Chris Boots and Eric Proctor to a 1983 execution-style murder. The defendants

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s James Lee Woodard is photographed Monday, April 28, 2008 at the Dallas District Attorney’s office in Dallas, Texas after being exonerated through the work of Texas Wesleyan Law School student Alexis Hoff after serving 27 years for a crime he did not commit. (Joyce Marshall/Fort Worth Star-Telegram/MCT)

were cleared by DNA in 1994, and Boots sued the state when further testing found that the blood specks did not match the victim and the gunpowder flakes weren’t gunpowder (Teichrob, 2004). Janice Roadcap. Over the course of three trials from 1974 through 1978, Pennsylvania state police chemist Janice Roadcap provided what the presiding judge called the “linchpin” evidence linking 12-yearold Steven Crawford to the murder of John Mitchell, whose body was found in the Crawford family garage. Roadcap testified that the killer left a fingerprint after Mitchell was killed, and the fingerprint was Crawford’s. In 2001, a defense investigator found a copy of Roadcap’s lab notes in a suitcase owned by one of the investigators, who had died 7 years earlier. The lab notes stated that the blood was splattered across fingerprints that were already there. In 1987, Roadcap explained to the jury at the rape/murder trial of Barry Laughman, that the killer’s blood type “morphed” from B to A—to match Laughman’s blood type—due to antibiotics the victim was taking at the time of her death. Her fantasy science stood for 16 years, until Laughman was cleared by DNA (Shellem, 2003a, 2003b). Joseph Kopera. Over a 21-year career as a firearms examiner in Baltimore, and then with the Maryland State Police, Kopera testified for the state in hundreds of criminal cases, basing his conclu-

sions on his extensive education and experience. He was a favorite of prosecutors because he “had an authoritative and engaging command of the material he was called upon to describe for jurors” (McMenamin, 2007). In February 2007, Kopera was deposed by lawyers for Sgt. James Kulbicki, whose conviction relied entirely on Kopera’s testimony. Kopera claimed under oath to have degrees and certificates he did not have, and he offered a forged document to back up his qualifications. He retired suddenly on March 1, 2007, and committed suicide that same day. Dr. Michael West. Dr. West, a dentist from Hattiesburg, Mississippi, was a self-taught expert in forensic bite mark identification. By 1992, when he testified in the trials of Kennedy Brewer and Levon Brooks, he had been suspended from the American Board of Forensic Odontology and had resigned from the American Academy of Forensic Science and the International Association of Identification, pending expulsion (Dewan, 2007). In both cases, very young children had been abducted from their beds during the night, raped, and murdered in rural, sparsely populated Noxubee County. Dr. West saw no connection between the crimes; he testified that each victim had been bitten by the defendant charged in that case. The men were each convicted; Brewer was sentenced to death, and Brook was

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sentenced to life in prison. In 2002, Brewer was cleared by DNA, but remained in jail pending retrial until 2007, when he was finally released on bond. In early 2008, Brooks was also cleared by DNA and released. Two other defendants whose convictions were obtained by Dr. West’s bite mark testimony were also cleared by DNA. On February 9, 2008, Mississippi Attorney General Jim Hood announced that Albert Johnson had been identified with DNA and charged in the murders of both children. Why did they do it? Why did they tamper with evidence, lie under oath and send innocent people to prison and even death row? Subtle pressure and inadvertent bias don’t explain this, especially because these scientists worked in both public and private settings. When it finally came out that Fred Zain had knowingly lied on the witness stand on a regular basis and had been responsible for sending many innocent people to prison, Dr. Vincent DiMaio, the Chief Medical Examiner and Zain’s former boss at the BCFSC, offered his own theory about the motivations of Zain. Dr. DiMaio told San Antonio Express reporter Kym Fox (1994): “[Zain] was thinking he was a great

noble man on a white horse and he would help the DA send all those criminals to jail.” Could that be it? Is it possible that some forensic scientists and expert witnesses lie on the witness stand because they just want to help? Yes, they are lying, but it’s for a good cause: putting the bad guys away. Here we go again: another excuse that softens the horrendous nature of what is done by the forensic scientist or expert witness who lies under oath. But if this noble desire to “help the DA send all those criminals to jail” is the reason, then it would follow that forensic scientists and expert witnesses never lie for the defense. That wouldn’t be “the right thing to do.” Right? Let’s answer that by looking at another case. During the night of April 30, 1994, a man named Parry Schurr was shot to death on a street in Wichita, Kansas. The shooter, Rumon Ray, fled from the scene and was later arrested. Three and a half months after the killing, blood samples taken from the victim at autopsy were sent by the Coroner-Medical Examiner in Sedgwick County, Kansas, to the Bexar County Forensic Science Center. Along with the samples was a letter to Dr.

James Garriott who, at that time, was the Chief Toxicologist of the BCFSC. This letter discussed the toxicological analyses to be run, one of them being a cocaine analysis. This became BCFSC Case # CIL 94-03194. On August 30, 1994, a cocaine analysis was performed by one of the BCFSC’s toxicologists. The results: an unambiguous “none detected.” The report was typed and signed by the analyst. Eight days later, a new report was printed (no new analysis, just a new report). The new report stated: Results: “COCAINE - 12 NG/ML.” This falsified report was signed by James Garriott, Chief Toxicologist, BCFSC. What could possibly have made Garriott falsify results? Was he trying to “help the DA send all those criminals to jail”? The answer to that last question is “no.” It was the defense attorney who had requested the cocaine analysis on the victim’s blood. The shooter’s lawyer wanted to know if the victim had been high on cocaine at the time of the killing (Hobson, 1994). Ah, the self-defense thing. In a letter to Garriott dated February 10, 1995, defense attorney Milo M. Unruh Jr. made it clear why he had requested a cocaine analysis on the victim’s blood:

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s FORENSICS KRT PHOTOGRAPH BY ALEX GARCIA/CHICAGO TRIBUNE, Forensic dentist Richard Souviron, during a police workshop, urges caution over bitemark comparisons. “You’ve got to be real careful with this kind of evidence.” (lde) 2004

“The elephant—evidence tampering, forensic fraud and perjury—has stretched out and made itself comfortable not just in the crime lab, but in laboratories of all types and in medical and dental offices as well.” “A considerable portion of that defense (self-defense) was based upon the fact that Mr. Ray (the shooter) maintained the decedent was the aggressor and was acting in a ‘crazed’ manner at the time of the incident, prompting Mr. Ray to shoot the victim in self-defense.” And: “In my opinion, it was critical to establish that [cocaine] had been ingested i m m e d i ately prior to the incident … such evidence would substantiate my client’s version that the victim was ‘high on drugs’ at the time of the altercation.” Okay. The shooter’s attorney is going for self-defense. The crux of the argument is that the victim was high on drugs at the time, acting crazy, and scaring the defendant so much that the defendant had to pull out a gun and kill the guy. A positive finding of cocaine would be a dream come true. So what? Why could any of this matter to Garriott as a forensic scientist? How could the hopes and plans of a defense attorney all the way up in Kansas have anything to do with Garriott generating a false report? Here’s something that might shed some light: Garriott testified at Rumon Ray’s trial as an expert witness for the defense. He submitted his falsified report as evidence and 84 THE FORENSIC EXAMINER® Spring 2009

testified under oath that the victim had ingested cocaine 60 to 90 minutes before the incident. A complete fabrication. But he was the “hired gun,” and the jury ate it up. How did it end? Rumon Ray was convicted of involuntary manslaughter and served just a few months in jail. The defense attorney got what he wanted, even though it wasn’t the truth. Garriott, who knowingly substituted reports and gave fabricated testimony at trial, was paid by the defense for his expertise, and as the expert who brought home the bacon for the defense, made himself all the more desirable as an expert in future cases. There’s nothing noble going on here, no desire to do the right thing and lock up bad guys. Expert witnesses get hired to support the premises of the side in litigation that hires them, and expert witnesses get paid for their testimony. Some get paid very well. Dr. Vincent DiMaio, expert witness for the defense in the 2007 Phil Spector murder case in Los Angeles, California, admitted on the witness stand to earning $400 per hour for his services, (People v. Spector, 2007). The expert witness who can’t or won’t support the premises of the side that retains him is the consulting expert. The consulting expert is paid for review work and an initial, informal report. If the report goes against the cli-

ent, the expert is put on a back burner. The consulting expert’s conclusions are a work product, so they are protected from disclosure to the other side in discovery. The consulting expert can’t be retained by the other side. Disagreeable results remain confidential, and the consulting expert stays, for the most part, anonymous. It is the testifying expert who builds the lucrative consulting practice. Having previously testified as an expert witness in court proceedings is a factor in qualifying to testify as an expert witness in current and future proceedings. Crime lab analysts who have testified in numerous cases have a leg up on their brother and sister scientists when they move into forensic consulting as a second or retirement career. It is the name of the testifying expert that is passed from lawyer to lawyer. This is true whether the litigation is criminal, civil, or administrative in nature. Forensic consulting is a business, and in business, the customer is always right. Keeping the customer happy is so important that many forensic experts limit their practices to plaintiff (prosecution in criminal cases) or defense side only. What they believe they can deliver is right up front in such situations. Civil tort litigation—lawsuits alleging harm caused by the negligence of another—has launched hundreds of well-paid consulting careers for experts in diverse fields of science and medicine. Legal professionals familiar with forensic experts in their area can accurately recite the conclusions of a given retained expert’s report before the expert has begun work on a case. Parties to litigation are entitled to attempt to persuade the jury that the other party’s witness is an “expert for hire,” who devotes a substantial part of his or her practice to testifying on behalf of certain types of litigants and/or for certain insurance companies. The purpose is to challenge the credibility of an expert witness by showing bias, prejudice, or relationship. Once the jury is made aware of this information, it is for the jury to decide what weight, if any, to give to the expert witness’ testimony. How that information is obtained and how it is presented to a jury has been the subject of appeals and developing case law in state courts across the country. In most states, litigants can subpoena the expert’s financial records to determine how much money the expert has received for forensic services from specific clients, including insurance companies. An orthopedic surgeon from the Tidewater area of Virginia, for example, during his first 2 www.acfei.com

years of solo practice, was paid $255,754 the first year and $284,252 the second year just for records reviews and defense medical examinations. He was retained by insurance companies defending personal injury and workers’ compensation cases. Sums like those can form a powerful bias. The elephant—evidence tampering, forensic fraud, and perjury—has stretched out and made itself comfortable not just in the crime lab, but in laboratories of all types and in medical and dental offices as well. We all feel the effects, whether we are aware of it or not. Innocent men and women are sentenced to years in prison or are put to death for crimes they didn’t commit, or that never happened in the first place. Spouses lose spouses, children lose parents, communities lose the talents of capable people, while criminals remain free to stalk new victims. Impaired drivers keep their licenses and drive 6,000-pound weapons on wheels that can strike any one of us at any time. Incompetent surgeons keep operating, leaving maimed bodies and mangled lives in their wake. Products stay in the marketplace despite posing a danger to life and limb that sometimes echoes across generations. The Justice Project’s recommendations for improving forensic evidence testing procedures are excellent, and we endorse them. But these reforms alone are not enough. We propose the following additional recommendations, which we believe will substantially reduce the size and impact of the elephant. 1) If the results of a forensic analysis are used as evidence, the ANALYST who performed the test must be the one who testifies about the analysis. An analyst who does not understand what he or she does and/or can’t explain it to a jury should not be running analyses. If a supervisor or someone else wants to testify about the results of an analysis performed by a subordinate, then that subordinate must still be available to be questioned under oath, if by no one else than the opposing side. 2) The statute of limitations on perjury, evidence tampering, fabrication of test results, and other types of forensic fraud should be eliminated or extended as a special category of crime. It can take years for evidence of deliberate falsification or perjury to come to light. Current statutes of limitation give the criminal forensic scientist/expert witness an easy out. This is how Fred Zain escaped possible conviction for what he did. 3) All materials associated with a forensic analysis must be made available to the other side, to include the hard data (GC/MS chro(800) 592-1399

matograms, IR spectra, gels, etc.) and the lab’s SOP regarding that particular analysis, including how the method is performed, how detection of the substance in question (e.g., cocaine, gasoline) is determined (i.e., what constitutes a positive or negative finding), the limits of detection for that particular analysis, the limits of quantification for that particular analysis, and all hard data from the calibrators and controls (positive and negative) that were run along with the sample of interest. Forensic science must be as transparent as possible. Without that transparency, there is little hope for virtue, and, as Plato told us 2,500 years ago, “Science without virtue is immoral science.”

References Associated Press. (2001, March 23). Charges dropped in earprint case. Retrieved September 14, 2008, from http://truthinjustice.org/mccann.htm Center for Investigative Reporting. (2007). Reasonable doubt: How faulty science at the nation’s crime labs is used to put people behind bars. Retrieved September 20, 2008, from http://www.centerforinvestigativereporting. org/projects/reasonabledoubt Dewan, S. (2007, September 6). Despite DNA test, a case is retried. New York Times. Retrieved September 21, 2008, from http://truthinjustice.org/Kennedy-Brewer. htm Fisher, J. P. (2007, January 31). Infants’ brain bleeding might not mean abuse; Minor intracranial bleeding is somewhat common in newborns, MRI scans show. The Charlotte News & Observer. Retrieved September 14, 2008, from http://www.newsobserver.com/102/story/538006.html Fox, K. (1994, July 14). Charges are eyed for Zain. San Antonio Express-News. Garrett, B. L. (2008, January). Judging innocence. Columbia Law Review, 60.

Hobson, G. (1994, October 13). Suspect in slaying claims self-defense. Wichita Eagle. Inman, K., & Rudin, N. (2000). Principles and practice of CRIMINALISTICS: The profession of forensic science, Boca Raton, FL: CRC Press. Kramer, A. (2004, May 25). Court dismisses cases against Mayfield. Associated Press. Retrieved September 14, 2008, from http://truthinjustice.org/mayfield. htm Lafay, L. (2005, July 6). Reasonable doubt. Style Weekly. Retrieved September 14, 2008, from http://www. styleweekly.com/article.asp?idarticle=10614 Lantz, P. E., Sinal, S. H., Stanton, C. A., & Weaver, R. G., Jr. (2004, March). Perimacular retinal folds from childhood head trauma. British Medical Journal, 328. McMenamin, J. (2007, April 22). Perjury fears throw cases into turmoil. Baltimore Sun. Retrieved September 21, 2008, from http://truthinjustice.org/kopera.htm Minns, R. A. (2004, October). Shaken baby syndrome. Behind the Medical Headlines. Retrieved September 14, 2008, from http://behindthemedicalheadlines. com/articles/shaken-baby-syndrome Piller, C. (2005, September 2). FBI abandons controversial bullet-matching technique. Los Angeles Times. Retrieved September 14, 2008, from http://truthinjustice.org/FBI-ballistics2.htm Shellem, P. (2003a, November 11). Chemist Roadcap provided evidence in both homicides. The Patriot-News. Retrieved September 21, 2008, from http://truthinjustice.org/roadcap.htm Shellem, P. (2003b, November 11). DNA test in, Laughman may be freed. The Patriot-News. Retrieved September 21, 2008, from http://truthinjustice.org/ DNA-laughman.htm Teichroeb, R. (2004, December 27). Forensic scientist in Washington crime lab tied to wrongful convictions in Oregon. Seattle Post-Intelligencer. Retrieved September 21, 2008, from http://truthinjustice.org/charles-vaughn.htm The Justice Project. (2008, August 24). Improving the practice and use of forensic science: A policy review. Retrieved September 14, 2008, from http://www.thejusticeproject.org/wp-content/uploads/forensics-fin.pdf Webster, M. (n.d.) Hair comparison commentary. Retrieved September 14, 2008, from http://www.truthinjustice.org/hair.htm n

About the Author Sheila Berry is both an author and an advocate. Throughout the 1980s, she served as director of prosecutor-based victim-witness assistance programs in Wisconsin. In 1997, Ms. Berry and her husband, Doug, founded Truth in Justice, a Virginia educational non-profit concerned with the conviction of innocent people for crimes they did not commit. Ms. Berry is the author of numerous non-fiction and fiction books, as well as magazine and journal articles. The Berrys reside in Richmond, Virginia. Larry Ytuarte, PhD, was born and raised in New York City. He earned a bachelors degree in chemistry and philosophy from York College of the City University of New York and a PhD in chemistry from Brown University. He worked for 4 years as a forensic chemist at the Bexar County Forensic Science Center in San Antonio, Texas. He currently lives in Las Cruces, New Mexico, with his wife, Louise.

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The Commission on Forensic Education, developed by The American College of Forensic Examiners, emphasizes the importance of forensic science programs in education and is committed to their expansion. The Commission offers guidance on instruction, provides For subscriptions call toll free: (800) help to423-9737 those who teach or study forensic science, and reviews professional certification Subscribe online: www.TheForensicExaminer.com programs. The Commission is an effective and essential network that helps educators and students stay informed of the latest innovations, breakthroughs, and important research in the field. membership is open to college and university administrators and Call now to find out how to receive a freeCommissioner issue! full-time, part-time, and adjunct professors; Associate Commissioner membership is open to high school science teachers. The Commission helps educators advance the field and inspire future forensic professionals through providing supportive services: SM • Helping educators network with fellow teaching professionals and top experts in the field. • Teaching potential students about the importance and the benefits of studying forensic science. • Giving members a highly visible forum to publish and distribute their research. To join the commission, apply • Helping members stay current in a constantly evolving field by providing quality online at www.forensiccommission.com continuing education. or call Anna at (800) 592-1399 • Providing certification programs that recognize achievement.

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