CASE 5 THE Homicidal Offender PDF

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THE HOMICIDAL OFFENDEROVERLOOKED VULNERABILITY IN DEFENDNAT – ADHD AND MISCARRIAGE OF JUSTICE(GUDJONSSON AND SUSAN YOFUNG)- Implications of Court of Appeal murder case of 15 y/o youth – ADHD not identified at trial, but 8 years later was and conviction was quashed o Primary effect of ADHD was to aff...

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THE HOMICIDAL OFFENDER OVERLOOKED VULNERABILITY IN DEFENDNAT – ADHD AND MISCARRIAGE OF JUSTICE (GUDJONSSON AND SUSAN YOFUNG) -

Implications of Court of Appeal murder case of 15 y/o youth – ADHD not identified at trial, but 8 years later was and conviction was quashed o Primary effect of ADHD was to affect IQ scores – making it look like D suffering from mental retardation and masking more relevant vulnerabilities Conclusion: ADHD symptoms relevant to contended issues are adverse inferences and fitness to plead and stand trial  Need comprehensive assessment (incl neuropsychological testing) to see whether indications of childhood ADHD ADHD is neglected vulnerability common in childhood o Leave suspect disadvantaged when interviewed by police and also during court proceedings o Increasing recognition of risks for D associated with psychological vulnerabilities  Mental retardation (learning disability)  Mental illness  Abnormally suggestible and compliant o

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P 1 May 1966 (15) convicted murder. Stood trial with older brother Lee (pleaded guilty to murder 9 days after trial), Birch – manslaughter o Alleged bro Edward lee has stabbed to death 18 yo youth o Crown argued joint enterprise between parties, but no forensic evidence to link Plaintiff i.e. Billy Joel to murder (but circumstantial evidence) o Defence: P could not have foreseen risk of bro having knife which could be used to inflict serious injury During police interview, P exercised rights to silence in first 2, but during 3 rd interview, gave brief account of his movements – that he did not know who had stabbed the victims o Used against him in court (since salient lies) No issues of fitness pleaded o Section 35 of Criminal Justice and Public Order Act if D does not give evidence  Jury may draw adverse inference from failure to give evidence  HOWEVER, not permissible if ‘it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence” Before trial, IQ test found of 63, verbal comprehension fell in average range, could give coherent account of himself + distractibility and poor concentration. Did not prove to be unduly suggestible o When Gudjonsson testified: expressed concern about whether D could do justice to himself in the witness box because of  Poor intellectual functioning  Attentional problems – worsened as likely to be exacerbated when performing under stress in the witness box  Distractibility o Defence wanted jury should be directed not to draw adverse inference from failure to give evidence (NOT HELD) 1977 – judge’s decision was appealed on 3 grounds, issues of consideration below, no specific tests when construing the meaning of the word ‘undesirable’ o Defendant’s failure to go into the witness box o Defendant’s failure to answer questions when first interviewed by police o Lies told by the defendant in the third police interview

NEW EVIDENCE BEFORE THE COURT OF APPEAL -

Sept 2003 – Criminal Cases Review Commission referred the case to the Court of Appeal o Basis of referral was adolescent forensic psychiatrist – D was found fit to plead but learning disability, inattentiveness and emotional state at trial significantly impaired capacity to participate at trial

THEREFORE ‘undesirable’ to give evidence DID NOT ADDRESS ADHD The judgment makes it clear that it was the new and positive diagnosis of ADHD that decisively determined the outcome of the appeal. Subsequent development: Dr Susan Young – comprehensive neuropsychological and ADHD assessment o Full scale IQ score now top of borderline range, but other tests showed significant residual problems   

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diagnostic of ADHD in childhood At time of assessment, P in partial remission of symptoms Educational records showed history of ADHD At trial, his poor attentional and behaviourial control showed ADHD  salient tendencies (manifest at trial) High levels of impulsitivity not reported at trial – and if presented as expert opinion, could be relevant to how jury considered P’s lies in the interview, and ability to give considered and reliable answers before jury

„In his evidence Professor Gudjonsson highlighted Billy Joe Friend‟ s general intellectual impairment as well as his relative intellectual strengths. He drew attention to the fact that that Billy Joe Friend “was disadvantaged overall to a significant degree with those specific strengths that he has”. He stated that his main concern was Billy Joe Friend‟ s distractibility; however Professor Gudjonsson was unaware at the time of the full extent of Billy Joe Friend‟ s impairment in attention and response inhibition. Billy Joe Friend was suffering with Attention-Deficit Hyperactivity Disorder and his cognitive [intellectual ] deficits were secondary to his primary problem, ADHD, which was not diagnosed at the time : : : due to his ADHD (and cognitive deficits being exacerbated by anxiety) and combined withverbal deficits, it was undesirable for Billy Joe Friend to give evidence‟. Dr Young further concluded, „for the same reasons, he was unlikely to have effectively participated in the trial proceeding‟. The Criminal Justice and Public Order Act 1994 makes it possible for the court to draw adverse inferences from a defendant‟ s silence at a police station and in court. This relates to the failure to mention facts when questioned under caution or when charged (Section 34), from failure to give evidence at trial (Section 35), failure or refusal to account for objects, substances, or marks (Section 36), and failure or refusal to account for one‟ s presence at a particular place (Section 37). LEGAL STUFF Legal advice to a suspect to remain silent when interviewed by the police does not prevent an adverse inference being drawn under Section 34 if the case goes to court (Archbold, 2005, pp. 15–422). However, courts will need to give appropriate weight to mitigating circumstances because there may be good reasons for such legal advice, such as that the interviewing officer had disclosed nothing or very little about the nature of the offence against the defendant so that the solicitor cannot usefully advice his client (Archbold, 2005, pp. 15–422). In addition, in view of a ruling by the European Court of Human Rights in Condron vs. U.K., domestic courts will, in any case, need to consider mitigating circumstances for the defendant‟ s silence whether or not this decision was based on legal advice (Archbold, 2005, pp. 15–432).Section 58 of the Youth Justice and Criminal Evidence Act 1999 amends Section 34 of Criminal Justice and Public Order Act so that no adverse inferences can be drawn from silence, or failure to provide an explanation, whilst the suspect is detained at a police station, unless he or she has been provided with the opportunity to consult with a solicitor.As far as Sections 34 and 35 are concerned, there is an important difference between these two sections (R vs. Gill [2001], 2 Cr. App. R. 160). The Judicial Studies Board‟ s website, www.jsboard.co.uk, gives the recommended specimen directions for judges to give to juries in these circumstances. Section 34 is about a failure to mention a fact before a trial (i.e. during a police interview or when charged), while Section 35 is about a failure to give evidence at trial. In both cases, the inference that the prosecution invites the jury to make is that the defendant‟s silence indicates that he or she has noexplanation that will stand up toexamination, and the absence of an explanation makes him or her more likely to be guilty.

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Importance of identifying ADHD – if remain undiagnosed, can have wrongful conviction In this case: important issue about adverse inferences could be drawn from D’s failure to give evidence (Section 35) o Compounded further by previously exercising rights to silence during first 2 interviews, then lying (Section 34) o D’s ADHD important implications to ability to participate effectively in trial, due to problems with sustained attention ad poor behaviourial control (eg being at risk at giving impulsive and ill-considered answers that could be misconstrued) These conditions may be more important towards ‘undesirability’ than IQ scores Sensible precautions o Regular breaks o Avoiding lengthy questions and complex language structure o

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Ensuring important information put across directly and simply

an important issue was that adverse inferences could be drawn from the defendant‟ s failure to give evidence at trial (Section 35). In addition, the defendant‟ s predicament was compounded further by his previously exercising his rights to silence during the first two police interviews and then telling lies during a further interview (Section 34). Additionally, the defendant‟ s ADHD had important implications for his ability to effectively participate in his trial, due to his problems with sustained attention and poor behavioural control, for example, being at risk of giving impulsive and ill-considered answers, which might be misconstrued by the jury.

TO BE FIT TO STAND TRIAL, D MUST ON BALANCE OF PROBABILITIES MUST BE ABLE TO:

(1) understand the charges; (2) decide whether to plead guilty or not; (3) exercise his or her right to challenge jurors; (4) instruct solicitors and counsel; (5) follow the court proceedings; and (6) give evidence in one‟ s defence if the person so wishes. With regard to giving evidence,[ t]his means that the defendant must be able: (a) to understand the questions he is asked in the witness box; (b) to apply his mind to answering them; and (c) to convey intelligibly to the jury the answers which he wishes to give. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that he should be able to see that they are implausible or unbelievable or unreliable‟ ( p. 3, Subsection 24). -

‘undesirable’ means something less than ‘unfit to plead’ o Another case R v Barry George o D (George) killed Jill Dando – but he had history of epilepsy and significant neuropsyhoclogcial deficits, considered fit to plead and stand trial by 3 defence expert witnesses  Defence experts considered certain problems might arise during testimony, made potentially underisable to go to witness box  May have blurted out the first thing that came to mind  in consistent + conflicting evidence  concentration problems = los train of thought  No adverse inferences

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OTHER PRECEDENT THINGS ABOUT THAT CASE  Judge ruled advocate would stay with George in the dock to provide him with practical support  Clinical psychologist commissioned by judge to sit in court through trila, liase with counsel, observe D’s demeanour, and in breaks, provide clinical psychological treatment required to

help him cope with trial (eg managing feelings of anxiety and stress, and thus reduce frequency of epileptic seizures)  Method of ‘fitness maintenance’ only way to stand trial as opposed to costly alternative of being detained indefinitely in max security without trial or facts being ascertained o

People with ADHD often speak and act without thinking of the consequences. He may have become emotionally labile, distressed, and/or angry when giving evidence. He may not have been able to inhibit a verbally aggressive response. These vulnerabilities are likely to be misinterpretedby a jury unless a suitably qualified expert carefully explained them.

symptoms of ADHD can „affect‟ a youth‟ s IQ scores to the extent that an erroneous diagnosis of learning disability can be made. -

Two probable pathways why ADHD affects IQ scores o Attentional problems and high impulsivity i mpair the person‟ s genuine performance as o

points are lost through lack of focus and impulsive errors. ADHD has been found to be associated with academic failure and school truancy, which makes the person unlikely to fulfil his or her full educational and intellectual potential

INTERESTING THINGS ABOUT BILLY JOE FRIEND

These were his low level of suggestibility, on which the trial judge apparently placed considerable weight in terms of Billy Joe Friend‟ s fitness to give evidence, and his average level of verbal comprehension and reasoning on the WAIS-R. What the expert evidence at trial did not review was the full range of ADHD implications, including probable problems with sustained attention over a prolonged period of time and high impulsivity. These had important implications for how Billy Joe Friend had responded in the police interviews, the difficulties he was likely to experience if he went in the witness box, and his impaired capacity to effectively participate in his trial (i.e. his fitness to plead and stand trial). CONTINUE importance of different psychological vulnerabilities in relation to police interviews and court proceedings. Psychological vulnerabilities are recognized in numerous legal judgments in the Court of Appeal

SOME CASES SLIP THROUGH THE NET

High prevalence rate of childhood ADHD from epidemiological studies ranging from 9% to 19% 67% of male inmates had childhood ADHD (Vitelli, 1995) and 30% continue to be fully symptomatic and 16% in partial remission The implication is that a large number of suspects interviewed by the police, subsequently convicted and sentenced, may have neuropsychological and developmental vulnerabilities unrecognized at trial. If true, this is a recipe for future miscarriages of justice.

PSYCHOLOGICAL VULNERABILITIES DURING POLICE INTERVIEWS. WHY ARE THEY IM PORTANT – GUDJONSSON -

Considered in context of unreliability of information Psychological vulnerabilities are best construed as potential ‘risk factors’ rather than definitive markers of unreliability. They are important, because they may place witnesses, victims, and suspects at a disadvantage in terms of coping with the demand characteristics of the interview (and subsequent Court

process) and being able to provide the police with salient, detailed, accurate, and coherent answers to questions.

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helps to ensure fairness and justice

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may recognize some of the core symptoms of the condition but usually will not have the expertise to objectively assess the functional deficits

Early identification – helps ensure fairness and justice. Currently identification of vulnerabilteis is poor TRA DIITON AL V RECE NT APPROACHES TO WITNESS TESTIMONY

Paper : review the relevant background literature, discuss recent advances in research and practice, identify key issues involving ‘competencies’, ‘reliability’, and ‘vulnerabilities’ and discuss them within the current English legal framework -

quality and fairness of those interviews that often determines whether or not justice is seen to be served

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evaluation and determination of the credibility (i.e., believability) of victims, witnesses, and suspects is one of the most challenging tasks facing the criminal justice system

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improvements in police interview training and judicial procedures and protection + continually growing scientific knowledge about psychological vulnerabilities

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Traditional approach was for fact-finders to focus exclusively on the content of their narrative

testimony in court, their reactions under cross-examination and their demeanour when giving that evidence’ o

Case of Raghip (1 of Tottenham Three’ – when Lord Lane 1988 refused to allow evidence of GUndjonsson in Court of Appeal  Viewe changed in 1991 when Raghip and 2 co-appelllants had their convictions for murder of PC Blakelock overturned after successful submissions by defence counsels and expert testimony of 3 clinical psychologists  Ruling in case The ruling in the case broadened the criteria for admissibility and

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acceptance of psychological testimony in cases of disputed confessions to include borderline IQ and personality traits related to interrogative suggestibility and compliance. Court warned that ‘high suggestibility and intellectual deficits could not satisfactorily be detected by observations of the defendant’s performance in the witness box’

Traditional methods of determining credibility of witnesses: o Lord Bingham describes ‘five tests’, which principally focus on detecting indicators of deliberate deception (i.e. the consistency of the witness’s evidence with other tangible evidence, the internal consistency of the witness’s evidence, consistency with what the witness has said on other occasions, the general credibility of the witness not germane to the litigation, and the demeanour of the witness).

Five test for deliberate deception: 1. 2. 3. 4. 5.

the consistency of the witness’s evidence with other tangible evidence the internal consistency of the witness’s evidence consistency with what the witness has said on other occasions the general credibility of the witness not germane to the litigation and the demeanour of the witness

Three test for unreliability : 1. errors to do with observations and memory 2. loss of memory withthe passage of time 3. and wishful thinking or self-deception

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Discusses cases where witnesses are ‘honest but mistaken’ – argues judges are generally reluctant to brand anyone a liar and therefore err on the side of caution  Three sources of unreliability in ‘honest but mistaken cases: (i.e., errors to do with

observations and memory, loss of memory withthe passage of time, and wishful thinking or self-deception).  Points out distinction between ‘eyewitness motivation’ (i.e., motivation to give an open and honest account) and‘eyewitness ability’ to give a clear and coherent account of events ( VRIJ: HOWEVER the detection of deception through observations of demeanour (i.e., on the basis of what the person says and the manner in which he or she says it) are fraught with misconceptions, unreliability, and overconfidence by the observer. Loftus asserts development of theory and practice in psychology = scientifically based knowledge and evidence, contradicts traditional approach to evaluating credibility o Memory processing and witness testimony ore dynamic/complex  increased role of expert psychological evidence  Focus on evaluation = strengths and weaknesses (vulnerabilities) of witness = bearing on reliability  Case led to Gudjonsson Suggestibilty Scales Fisher: cognitive interview + scientifically /theoretically driven interviewing protocls can help improve quality of interviews with cooperative witnesses o KEY CONCERNS:  Lack of collaborative work between scientists and police practitioners in the USA

means that the scientific work is not being effectively incorporated into police interviewing protocols.  psychology has not been successful in developing effective interview methods for improving the identification of perpetrators in line-ups. Kassin Appleby and Perillo: current American models of police interviewing recommended to be replaced with the British PEACE approach and accompanied by mandatory video-recording of police interviews. ( not requiring good collaboration between police interviewers and scientists) o

Increasing recent development is psycholgoists increasingly taking active part in training police officers to investigate interviewing and act as consultants

CURRENT CHALLENGE: A current challenge for psychologists is to convince investigators, lawyers and judges that they need a better understanding of the psychological factors that affect the reliability of witness testimony and the weight it should be given

COMPETENCY REQUIREM ENTS OF WITNESSES -

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Pscyhologists – active part in assessing capaci...