Psychological Evaluations for the Courts PDF

# Chapter 2 ## An Overview of the Legal System ### Sources of Law, the Court System, and the Adjudicative Process ### 2.01. Introduction The forensic specialist works in a world defined largely, if not exclusively, by “the law.” The law regulates forensic practice through administrative licensing...

# Chapter 2 ## An Overview of the Legal System ### Sources of Law, the Court System, and the Adjudicative Process ### 2.01. Introduction The forensic specialist works in a world defined largely, if not exclusively, by “the law.” The law regulates forensic practice through administrative licensing agencies, legal rules governing malpractice and confidentiality, and constitutional principles limiting evaluation procedures. Legal officials-judges, attorneys, probation officers, and clerks initiate forensic referrals, and sheriffs and other law enforcement officers transport the clients to and from hospital and jail. And, of course, legal factfinders-judges and juries—are the ultimate arbiters of those cases evaluated by the forensic specialist. Most importantly, at least from the perspective of this book, the law establishes the guidelines that define the scope of forensic evaluation. Chapters 6-17 describe this law in detail. But before undertaking an investigation of these legal rules, one should understand from whence they come, and when and by whom they are applied. The “law” is not derived from a single, readily accessible, or static source. Nor is it always implemented by a judge or jury. To function competently, the forensic specialist must have a basic knowledge of the sources of law, the institutions that shape it, the various points in the legal process at which it can be applied (especially those points at which “mental health law” is applied), and the types of individuals who apply it. This chapter is devoted to an acquisition of that basic knowledge. Much of its content will probably be familiar to the lawyer; it is aimed primarily at the clinician with no legal training. ### 2.02. Sources of Law Through the sources discussed in this chapter, find the law that applies in your state on the following topics: * The insanity defense. * The extent to which mental illness is a mitigating factor in sentencing proceedings. * The extent to which mental injury is compensable under workers’ compensation law. * The scope of the psychotherapist patient privilege. * Eligibility for Social Security. * The standard for competence to proceed. * The point at which an arrested person must be taken before a judge. * The point at which the defendant in a civil case can require a mental examination of the plaintiff. * In which areas is the law federal in origin, and in which is it generated by the state? * In which areas is there both federal law and state law, and when does each apply? * In which areas is the source of law constitutional? Statutory? Regulatory? * In which areas is the source of law judicial, either in origin or as a matter of interpreting constitutional, statutory, or regulatory law? ### 2.03. The Court System Just as the federal and state governments have parallel branches of government, they have roughly parallel judicial structures. Both the federal and state judiciaries have two types of courts: "trial courts” and “appellate courts.” The primary functions of the trial court are to ascertain the facts of the case before it, and then to apply "the law" to those facts. The facts are gleaned through an “adversarial” process, which envisions an impartial “trier of fact” (either a judge or a jury) considering evidence chosen by the parties to the dispute. An “adversarial” process can be distinguished from an “inquisitorial” process, found in some European countries, which combines the investigative and decisionmaking roles. In most instances, the trial court’s decision may be appealed to an appellate court, which determines whether the trial court applied the correct legal principles. Usually no “trial” takes place at the appellate level; rather, the court bases its decision on the record developed by the trial court, the briefs (written memoranda of law) submitted by opposing counsel, and occasionally oral argument by counsel. Beyond this similarity in basic structure, the federal and state judicial systems tend to diverge. #### (a) The Federal Court System Federal judges are nominated by the President of the United States and confirmed by the United States Senate; they are appointed for life. In the federal system, the “district court” serves as the trial court. Each state is divided into one or more districts over which a district court judge presides. The district courts have jurisdiction over many types of cases, but most relevant to this book is their authority over cases arising under federal law. Thus any claim that a federal or state statute or practice is unconstitutional under the United States Constitution may be brought in federal court. So too may any claim for an entitlement under federal statutes and regulations (e.g., for welfare benefits or discrimination claims under the Americans with Disabilities Act, although both require administrative proceedings first). Defendants charged with federal offenses are also tried in federal court. There are two levels of appellate courts in the federal system: the circuit courts of appeals and the United States Supreme Court. The country is divided into 12 circuits, each including several states (except the District of Columbia Circuit); the judges on the circuit courts of appeals hear appeals from the district courts within their circuit. While each circuit has a number of judges appointed to it, cases typically are heard by panels of three judges, with a circuit on rare occasions hearing a case en banc—that is, with all judges from the circuit sitting as a panel. A decision by a particular court of appeals determines the law only for that particular circuit. The United States Supreme Court, consisting of nine Justices, is the highest court in the country. Its decisions regarding the United States Constitution and federal and state enactments apply nationwide and are final—that is, unappealable. Its jurisdiction is primarily appellate, although it has original trial jurisdiction over some types of cases, such as controversies between a state and the United States and between a state and citizens of another state. The Court is required to take certain types of cases on appeal, including cases in which a district court declares a federal statute unconstitutional and in which a circuit court declares a state statute unconstitutional. For the most part, however, the Court may exercise its discretion in deciding which cases to consider; otherwise, it would be overwhelmed. The primary mechanism for petitioning the Court to hear a case is called a “writ of certiorari.” The Court denies or grants certiorari on a particular case depending on its legal and systemic significance, with four votes needed to “grant cert.” For instance, the Court often grants cert in cases that provide an opportunity to resolve a conflict between courts of appeal, or those in which a state supreme court has interpreted a federal constitutional or statutory provision in a questionable manner. Many significant mental health law cases were certiorari cases (e.g., Addington v. Texas, establishing the standard of proof in civil commitment cases; Washington v. Harper, setting forth the Supreme Court’s views on the right to refuse psychoactive medication; and Atkins v. Virginia, exempting people with intellectual disabilities from the death penalty). #### (b) State Judicial Systems In many states, judges are elected, not appointed. Also, in contrast to federal court, most states have at least two levels of “general-jurisdiction trial courts”—one that tries civil matters involving small sums of money and minor crimes, and another that handles major civil and criminal trials. With a few exceptions (most importantly, federal criminal cases), a state court with general jurisdiction may hear cases involving federal as well as state law. Moreover, most states have “special-jurisdiction courts” for designated subject areas, such as civil commitment, domestic relations, juvenile matters, and probate. Many of the special-jurisdiction courts and the lower-level general-jurisdiction courts are relatively informal. The proceedings are not transcribed as a matter of routine; the rules of evidence may not apply; and witnesses may not be required to testify under oath. Litigation over the level of formality that should adhere in these types of courts has achieved mixed results [see, e.g., §§ 10.02(c), 10.04(a), 14.02(d)]. A relatively new type of special-jurisdiction court, which we call the “therapeutic court,” is discussed in more detail below in § 2.04(e). Like the federal system, most states also have two appellate levels—an intermediate appeals court and a supreme court—although some states have only the latter. The state supreme court is the ultimate authority on the interpretation of state law; even the United States Supreme Court must respect the state court’s decision with respect to its own law, unless it is in conflict with the United States Constitution or a federal enactment that has preempted the area. Figure 2.1 illustrates in simplified form the relationship between the federal court system and the typical state court system. [Image Description: A diagram with a title: "The relationship between federal and state courts". The diagram shows two judicial systems, the federal and state systems, and their relationships.] ### 2.04. The Adjudicative Process There are four major types of judicial proceedings: criminal, civil, administrative, and those characterized in this chapter as “quasi-criminal.” In addition, many jurisdictions have established special "therapeutic courts" that are considered part of the criminal process, but are really quasi-criminal in nature. Each process has different objectives, uses different rules of evidence and procedure, and involves different types of personnel. The forensic clinician should be aware of the principal differences among these proceedings, in order to understand the context in which clinical input is sought. #### (a) The Criminal Process A criminal prosecution occurs when the government (federal or state) charges an individual with the commission of an act that is forbidden by statute and punishable either by imprisonment or by a fine. Conviction of and punishment for a criminal offense have traditionally been viewed as the most severe actions society can take against one of its members. Accordingly, the criminal process is the most highly formalized of any adjudicatory proceeding. The prosecution must prove each element of the crime charged "beyond a reasonable doubt” (a level of certainty that can reasonably be quantified at above 90%). The defendant is afforded the right to counsel, not only at trial but at any “critical” stage before trial, including postindictment lineup identifications and custodial interrogations. To prevent “star chamber proceedings,” the defendant is entitled to a public jury trial, the right to compel witnesses to testify in his or her behalf, and the right to cross-examine the prosecution’s witnesses. There are two generic types of offenses: “misdemeanors” and “felonies.” A misdemeanor is usually defined as an offense punishable by imprisonment up to one year, a fine, or both. The place of imprisonment, if it occurs, is usually the local jail rather than a state prison. Felons, on the other hand, are incarcerated in the prison system, for terms ranging from a few months up to life—depending, of course, upon the crime. Roughly 30 states and the federal government also authorize the death penalty. ##### (1) The Stages of a Criminal Prosecution A criminal prosecution is a highly structured event, established by statute, court rule, or long tradition. Although the details vary from jurisdiction to jurisdiction, the following typology is representative. * **Detention.** The state has authority to detain an individual on a criminal charge if there is “probable cause” (a degree of certainty perhaps roughly equivalent to 40-50%) to believe that the individual has committed the crime charged. Information constituting probable cause can come from direct police observation, reports from informants, or complaints by ordinary citizens. Once sufficient grounds exist for believing that there is probable cause to arrest an individual, the police may seek an arrest warrant from a judge or magistrate (a judicial officer who presides over pretrial hearings). However, if there is no time to seek a warrant, the arrest is made in public, or some other extenuating circumstance exists, the police may make a warrantless arrest. In rare cases (e.g., those involving political corruption), an arrest may be made pursuant to a grand jury indictment or based on an “information” from the prosecutor, both indicating that, after a formal investigation, grounds exist for detaining the named individual. As we note later, however, the indictment or information usually follows rather than precedes arrest. * **Booking.** Immediately after arrest the defendant is taken to the station house, where appropriate paperwork is completed, and (if necessary) fingerprinting and photographing take place. * **The initial hearing.** The United States Supreme Court has held that as soon as possible after arrest (i.e., within 48 hours), the government must afford the accused a hearing to determine whether there is probable cause to detain him or her, unless the arrest is based on a warrant or an indictment (because in the latter instances a judicial determination of probable cause has already been made). Those charged with misdemeanors may be tried at this time. Those charged with felonies will usually have counsel appointed if they cannot afford one, and will either have their bail set or be released on their own recognizance. In many states, as well as in federal prosecutions, the government has the authority to “preventively detain” an arrested individual who is proven likely to commit a crime if released prior to trial. * **Defensive motions and discovery.** Once the defendant has obtained counsel, several events may occur, depending on the nature of the case and the competence of counsel. First, the defense counsel may try to “discover” the prosecution’s case, which he or she can do by making a motion to the court asking for “exculpatory information” in the prosecution’s files, as well as other information that the prosecution plans to use at trial (e.g., confessions by the defendant, statements of prosecution witnesses). In an increasing number of states, the prosecution may obtain the same sort of information whether or not the defense makes a discovery motion (although it may not obtain incriminating statements from the defendant, for Fifth Amendment reasons). Most other states follow a "reciprocity" principle with respect to discovery, meaning that prosecution discovery is contingent upon a discovery request from the defense; in practice, given the limited resources of the defense and the vast resources of the state, such a request usually occurs. Thus, in virtually all states, the discovery rules permit prosecution access to the results of the defendant’s clinical evaluations, either “independently” or once the defendant makes a discovery motion. As § 4.02(b) indicates, however, in some circumstances operation of these rules may be unconstitutional. * **The prima facie showing.** At some point following the initial hearing, it is incumbent upon the prosecution to “make its case” formally in front of a judicial body—either a judge, a magistrate, or a grand jury. This stage is designed to ensure that the prosecutor has a “prima facie case” (i.e., a case good on its “face,” with sufficient evidence to justify going forward with the criminal prosecution). To meet this burden, the prosecutor will often present the results of lineup identifications, police interrogations, searches of the defendant’s home or the crime scene, and any information discovered from the defense. In many states, this presentation is made to a magistrate or judge at a preliminary hearing, at which the defendant and counsel are present. In addition, most states east of the Mississippi River, as well as the federal courts, require an indictment by a grand jury; here the public and the defendant are barred from the proceedings. In the latter states, if the indictment is obtained before a preliminary hearing occurs, the hearing does not take place. * **The arraignment.** Although the term "arraignment" is sometimes used to refer to the initial hearing (step 3), technically it is the stage at which the accused pleads, which may not occur until well after that hearing (especially for felonies). In most states, there are four possible pleas: “guilty,” “not guilty,” “nolo contendere” (by which the defendant indicates that he or she will not contest the state’s charges), and “not guilty by reason of insanity.” In about 12 states, it is also possible to plead "guilty but mentally ill" (see § 8.03(f)). Most jurisdictions permit a defendant to plead not guilty and not guilty by reason of insanity simultaneously (on the theory that the defendant should not be barred from asserting other defenses—e.g., self-defense—just because he or she claims insanity). If one or both of the latter pleas are entered, the case is usually set for trial. If the plea is guilty, the judge must ascertain whether it was voluntarily, intelligently, and knowingly made; if so, the defendant is sentenced, either at arraignment (in misdemeanor cases) or at a later proceeding (step 8). * **Trial.** If the defendant chooses to go to trial and does not waive his or her right to a jury, a jury is selected through “voir dire.” This process permits each side to exclude individuals from the jury, using a limited number of “peremptory challenges” (which require no stated reason) and an unlimited number of “for-cause challenges” (which must be justified). The federal courts and most states require 12-member juries in felony cases, although 6-member juries are becoming more common. Once a jury is properly impaneled, the trial begins. After opening arguments, the state presents its evidence, through submission of exhibits and direct examination of witnesses. The defendant may challenge this evidence through cross-examination and, in the court’s discretion, rebuttal witnesses. The defendant then puts on his or her evidence, if any, which the state may contest. If insanity is an issue, some states permit a “bifurcated trial,” with the insanity evidence introduced at the second stage (see § 4.02(b)). After closing arguments, the judge provides the jury, if there is one, with instructions on the law it is to apply to the facts of the case. In a case in which insanity is raised as a defense, for instance, the jury will be told the jurisdiction's test for insanity. After instructions are given, the jury retires until it can produce a verdict, which usually must be unanimous (although the Supreme Court has held that 11–1, 10–2, and 9–3 decisions are not unconstitutional). If the jury is “hung” (i.e., cannot reach a proper verdict), a new trial may be held. * **Disposition: Sentencing and commitment.** A few states permit the jury to sentence the defendant once it finds the defendant guilty. However, most states leave the sentencing decision in noncapital cases up to the judge, who will often request a “presentence report” from the probation officer and will occasionally hold a sentencing hearing. Except in death penalty cases, the latter hearing is usually much more informal than a trial (see § 9.03(b)), although again both sides are given the opportunity to present evidence. The sentencing authority may impose any sentence within the statutory range and may also impose probation, with conditions. An individual acquitted by reason of insanity, on the other hand, is usually required to undergo a short commitment for evaluation purposes and is then subjected to a hearing that results in prolonged commitment if he or she is found to be mentally disordered and dangerous (see § 10.10(c)). * **Appeal.** After conviction and sentencing, a defendant has the option of appealing the trial court’s decision. An appeal must be taken within a certain period of time and must be based on factual issues (e.g., insufficient evidence to convict) or legal ones (e.g., the defendant’s confession was obtained in violation of the Fifth Amendment) that have been objected to before or during trial. The prosecution may not appeal an acquittal (under the double jeopardy clause of the United States Constitution), although in many states and in federal cases it may appeal a sentence. * **Collateral attack.** Once appeal routes are exhausted, it is still possible for both the offender and the insanity acquittee to attack their confinement “collaterally” through a writ of “habeas corpus” (or, in some states, a writ of “coram nobis”). The gist of these writs is an allegation that the state is illegally detaining the person. Once the state habeas process is exhausted, the state criminal defendant might also be able to raise claims on a federal writ of habeas corpus. Although the scope of federal habeas for state prisoners has been narrowed in recent years, it does enable the prisoner or acquittee to make certain claims regarding the fairness and adequacy of the trial or plea bargain that resulted in incarceration. Several mental health law cases (in particular, those challenging the death penalty) have reached the United States Supreme Court through this procedural mechanism, including Barefoot v. Estelle, affirming the use of psychiatric prediction testimony in capital sentencing proceedings, and Ford v. Wainwright, prohibiting execution of incompetent persons. * **Dispositional review.** Most offenders and insanity acquittees are not released via appeal or collateral attack. Instead, most are released through state-initiated review of their status. Through the 1970s, most prisoners were released from incarceration after a parole hearing. However, many states have abolished parole in favor of “fixed” sentences (see § 9.03(a)(4)), and from 1977 through 1997 the percentage of prisoners who appeared before a parole board declined from 72 to 28%. In those states that still rely on parole, convicted offenders who have served a minimum period of time and are otherwise eligible for parole are entitled to have a parole board determine their eligibility for early release, based on each individual’s criminal record, behavior in prison, and perceived tendency to recidivate. Similarly, in most states insanity acquittees are entitled to periodic reviews of their mental state and dangerousness, either by a probate court or by an administrative board. * **Postsentence treatment hearings.** Many states transfer prisoners needing psychiatric care to secure mental hospitals until they no longer need inpatient treatment; others seek such treatment for prisoners under "guilty but mentally ill" statutes. The United States Supreme Court has required that before an involuntary transfer from prison to a hospital takes place, some type of hearing be held. ##### (2) Clinical Input: Issues, Points of Entry, and Contacts During the process described above, myriad issues arise that may call for clinical expertise. Due process requires that before an accused pleads guilty or undergoes trial, he or she must be competent to do so. Thus the clinician may be asked to evaluate the accused’s “competence to plead guilty” (see § 7.04) at virtually any point prior to arraignment; an assessment of the defendant’s “competence to proceed” (see Chapter 6) may be called for at any time up through the conclusion of trial. Occasionally the evaluator may even be asked to address these issues retrospectively, if, for instance, the competence issues are raised via a writ of habeas corpus. If the defendant confesses, the clinician may be requested to determine whether at the time of the incriminating statement the defendant was “competent to confess” (see § 7.03), and may be asked to explain his or her findings at a suppression hearing. If the defendant wants to proceed pro se—that is, to represent him- or herself at either arraignment or trial, or both—the clinician may be asked to evaluate the defendant’s “competence to waive the right to counsel” (see § 7.05). A final competence issue that the clinician may address is whether the defendant (or, more likely, one of the trial witnesses) is “competent to testify” (see § 7.07). All these evaluations are likely to be ordered at some time between the initial hearing and the trial. Both the defense and the prosecution may also want an evaluation of the defendant’s “mental state at the time of the offense” (see Chapter 8). Most states require the defendant to give the state formal notice of an intent to raise an insanity defense at least ten days before trial, so the defense will usually ask the clinician to evaluate the defendant’s sanity well before this time. The prosecution, on the other hand, arguably does not need its own evaluation or any information on this issue until after the defendant raises it (see § 4.02(b)). Nonetheless, in practice, the prosecution often requests an evaluation before notice occurs. Occasionally the defense may actually encourage such action; the available data indicate that a large percentage of insanity acquittals are the result of quasi-plea bargaining, which may occur well before notice by the defendant is required. If the defendant is convicted, either the state or the defendant may want a presentence evaluation of the defendant focusing on his or her "dangerousness," "treatability," mental state at the time of the offense (or "culpability"), or other issues (see Chapter 9). Frequently, such evaluations take place before the determination of guilt or innocence—either because (as is the case with capital sentencing procedures in most states) the sentencing hearing immediately follows trial, or because both sides want to reach a bargain and the defendant’s treatability is an issue that will influence the ultimate plea and recommended sentence. Another issue that may require clinical expertise at or after sentencing is competence to be sentenced or executed (see § 7.08(b)). Finally, in the context of parole board decisionmaking and release hearings for insanity acquittees, the clinician may be asked to evaluate the defendant’s mental state and dangerousness. In the context of prison transfers, treatability may also be an issue (see § 10.10(b)(1)). The mental health professional should also be aware of the different actors involved in the criminal process. The prosecutor is perhaps the most powerful, at least during the pretrial stages, as he or she is the official responsible for deciding what charges to bring against the defendant. Indeed, the prosecutor has the authority to dismiss the charges entirely, even if the victim wants them pressed. Moreover, the prosecutor’s discretion during the plea-bargaining process to reduce charges and fashion a disposition is enormous. Obviously, the defense attorney is also of extreme importance. Without this individual, the process would probably not be adversarial in any real sense. Because most defendants are indigent, few defense attorneys are retained. Most are either court-appointed attorneys or public defenders. Both types of defense attorneys are paid by the state—the former on a per-case basis, the latter by salary. Increasingly, states are moving toward public defender offices as the method for providing legal services to indigent defendants; whereas public defenders may represent only criminal defendants, court-appointed attorneys are often marginally involved in criminal practice and may resent having to take time out from the rest of their caseload. At the same time, attorneys working for public defender offices are often young and inexperienced, overworked, and prone to plea-bargain to keep their caseload manageable. Other actors in the system have already been briefly described. Judges make rulings of law and instruct the jury at trial as to the proper law to apply. Magistrates issue warrants and preside over preliminary hearings. Probation officers prepare presentence reports and supervise offenders put on probation. Court clerks issue the judge’s orders and organize the court docket. The sheriff and jail personnel provide security and transportation. All these individuals are important to the evaluator because of their control over various aspects of the criminal process. Moreover, each can provide useful information about the person being evaluated. Serious forensic practitioners need to establish a credible relationship with each of them if evaluations are to reflect comprehensive assessments of clients, and if reports and testimony are to receive the full attention they deserve. An evaluator should also be aware of the types of information that may be available from various stages of the criminal process. The police report, filed soon after detention, can be an invaluable source of data about the mental state of an accused person. The initial hearing is usually not transcribed, and in any event will usually not produce anything probative of mental state. But the documents supporting evaluation, discovery, or suppression motions, made at that stage or soon thereafter, can be very useful to the evaluator, as can the transcripts of suppression hearings and any information obtained through the discovery process. Preliminary hearings are also virtually always transcribed and can be made available to evaluators (grand jury testimony, on the other hand, is usually kept sealed until shortly before or during trial). Of course, if a presentence report exists, it can be very helpful in addressing dispositional and perhaps other issues. #### (b) Civil Proceedings Unlike a criminal adjudication, a truly civil proceeding involves a dispute between private parties. The government merely provides the forum for resolving the dispute. A simple civil suit, for example, might involve a claim by one party (the "plaintiff") that the other party (the “defendant”) negligently operated his or her automobile and caused physical and mental injury to the plaintiff. Civil suits might also seek damages for breach of confidentiality or malpractice by a mental health professional. A different type of civil suit involves custody over children during a divorce proceeding; here the goal is not monetary damages but possession of the children. The common thread among these cases is that all involve disputes between citizens, rather than between a citizen and the state. Because a civil proceeding of this type does not result in a loss of liberty and is viewed as a conflict between parties with roughly equivalent resources, the degree of certainty required to reach a decision is much lower than in the criminal process. Although the plaintiff has the burden of proof, he or she can meet it merely by a "preponderance of the evidence,” meaning a showing that the plaintiff’s version of the facts is more likely than the defendant's. Nor are the stages of civil adjudication as highly ritualized as those in the criminal context. Under the Federal Rules of Civil Procedure, which many states have also adopted in whole or in part, a civil suit is commenced by filing a "complaint," to which the defendant responds with an “answer.” No further steps are required until trial. Typically, of course, both sides make numerous “pretrial motions.” The most frequent are those designed to discover the other side’s case. The scope of discovery has expanded in the past several decades in order to avoid surprises at trial. A number of mechanisms are available to facilitate this process, including “depositions” (during which witnesses are questioned and their testimony transcribed); “interrogatories” (sets of written questions that are answered in writing); requests to produce documents and other tangible evidence; mental and physical examinations; and requests to admit facts relevant to the case. Of particular importance here are motions to obtain a mental examination and motions to discover the content and basis of opinions held by a party’s experts. Under the rules applicable in federal court, a party can obtain a mental examination only of another party to the case or a person in that party's “custody or control”; for privacy reasons, examinations of nonparties cannot usually be obtained. Moreover, before a mental examination of a party is permitted, the court must be convinced that his or her mental condition is “in controversy” and that there is “good cause” for the evaluation. In contrast, discovery of expert opinion is facilitated by the rules. A party that will use an expert as a witness must automatically give the other side a report containing the opinions, data, and reasoning of the expert; in addition, that expert may be deposed at any time. The identities of experts who are consulted but will not testify must also be disclosed; however, these experts may not be deposed or sent interrogatories unless exceptional circumstances make the information they possess difficult to obtain through other means. As indicated above, experts are often deposed during the discovery process. A deposition involves questioning of the witness by the deposing party’s attorney, with the witness’s attorney present. The transcript of this deposition may be used at trial to impeach the expert's testimony at trial, or as a substitute for it if the expert is unavailable. Although objections to questions asked during deposition may be made, they are usually merely noted for the record; experts must generally answer all questions put to them, even if the answers will not later be admissible at trial. The most pertinent exceptions to this rule occur when the questions ask for completely irrelevant information (e.g., the results of a short therapy session 20 years earlier) and when they ask for privileged information or information that the expert's attorney can convince the court is entitled to protection for confidentiality reasons. As § 4.04 makes clear, in most jurisdictions neither objection affords much protection. Frequently, once discovery is complete, the parties settle rather than go to trial. Although “settlement” is analogous to plea bargaining, the terms of the settlement agreement need not be approved by, or even divulged to, the judge. The settlement rate is almost as high as the guilty plea rate in criminal trials. If settlement is not reached, voir dire of the jury “venire” (i.e., the group of prospective jurors) is conducted, and the trial begins. The civil adjudication, like the criminal trial, is adversarial in nature. The plaintiff’s evidence is presented first, and his or her witnesses are then subjected to cross-examination; the defendant’s case follows. Again illustrating the differing stakes involved, however, in many states the civil jury need only produce a majority verdict for one party to prevail (in the federal courts, a unanimous verdict is required unless the parties stipulate otherwise before trial). The psychological issues that arise in civil cases will depend, of course, on the substantive nature of the case. In the typical personal injury (or tort) case, the plaintiff may claim that the defendant’s negligence caused not only physical harm but mental pain and suffering, and may request an evaluation gauging the nature and extent of this pain and suffering (see Chapter 12). In custody disputes, the issues are whether one or either of the parents is fit to care for the child and, in a larger sense, what is in the best interests of the child (see Chapters 15 and 16). As in the criminal context, several competence issues may arise in a civil adjudication, all discussed in Chapter 11. In probate cases, clinicians may be asked to evaluate whether the deceased person was competent to make a will at the time it was executed; in guardianship cases, they may have to assess whether the proposed ward was competent to make personal or business decisions; and in contract cases, a question may arise as to whether a party to the agreement was competent to enter into a contractual relationship. As in criminal cases, there may also be a need to determine whether a particular witness is competent to testify (see § 7.07). #### (c) Administrative Hearings Virtually all administrative hearings in front of executive adjudicative bodies are also deemed "civil" in nature. However, in these cases the government is a party and is often acting to confer property on or take property away from a citizen (e.g., licensing and Social Security determinations). Therefore, the standard of proof used in these proceedings is often the “clear and convincing” standard, which falls between the "beyond a reasonable doubt" rule used in criminal cases and the "preponderance of the evidence” standard used in the typical civil case. In contrast, rules of evidence are often relaxed at administrative proceedings because of the absence of a jury [see, e.g., §§ 12.02(a), 13.02(d)]. Probably the most common psychological issue in administrative adjudication is the level of mental disability suffered by an applicant for government benefits in the form of Social Security (see § 13.04) or workers’ compensation (see § 12.02). In jurisdictions where the state legislature has conferred authority on administrative bodies to hear mental health issues traditionally heard in the courts, such as the right to refuse treatment (see § 11.03(b)), greater clinical participation in administrative hearings can be expected. #### (d) Quasi-Criminal Proceedings: Civil Commitment and Juvenile Delinquency There exist entirely discrete types of cases that have traditionally been labeled “civil” in nature, but, because they potentially involve a significant deprivation of liberty, are best characterized as “quasi-criminal.” The two types of quasi-criminal cases discussed in this book are “civil commitment” and “juvenile delinquency” cases. Civil commitment is the process by which the state institutionalizes those found to be mentally disordered and either dangerous or in need of care. Juvenile court provides a mechanism separate from the adult criminal justice system for trying allegedly antisocial juveniles. Traditionally, both mechanisms were seen as means of providing state resources to relatively helpless groups within society; their objective was not punishment, but rehabilitation. But since the 1960s, the courts have recognized that both systems involve a “deprivation of liberty," with some concluding that they often do little to help and may actually harm those involved. As a result of this shift in perspective, significant changes have occurred in both areas, described in detail in Chapters 10 (on civil commitment) and 14 (on juvenile delinquency). For present purposes, only a few recent developments need be noted. In the civil commitment context, the United States Supreme Court has held unconstitutional state statutes that permit commitment by the civil “preponderance of the evidence” standard; instead, it has required the higher “clear and convincing evidence” test to be met. Lower federal courts and some state courts have also held that formal evidentiary rules and the rights to subpoena and cross-examine witnesses apply in commitment hearings. In the juvenile context, the United States Supreme Court has, in effect, equated juvenile delinquency proceedings with adult criminal trials. With a few exceptions (e.g., the right to jury trial), every right afforded adult criminal defendants must also be afforded juveniles charged with committing a crime, including the right to require proof beyond a reasonable doubt that the crime was committed. It would be naive to conclude that the “therapeutic ideal” no longer exerts a strong influence on the civil commitment and delinquency adjudicatory systems; in practice, the new procedural requirements have often been disregarded, and in some states the trend is explicitly antilegalistic. Nonetheless, with a few exceptions, those subjected to these types of proceedings are theoretically entitled to the same type of adversarial proceeding that adult criminal defendants are. As described in detail in Chapter 10, the issues that will confront the clinician performing civil commitment evaluations focus on the need to hospitalize the individual in question (or, in those states that have embraced outpatient civil commitment, whether the person should be ordered into community care). State statutes vary, but usually require a finding that the individual is mentally ill plus either dangerous to others, dangerous to him- or herself, or in need of care or treatment before involuntary commitment may occur. The clinician may also be asked to evaluate the individual's competence to make treatment decisions (see § 11.03). Juvenile delinquency proceedings, as Chapter 14 makes clear, may require a