Intellectual Disability: Civil and Criminal Forensic Issues

Intellectual Disability: Civil and Criminal Forensic Issues

Intellectual Disability: Civil and Criminal Forensic Issues

Intellectual Disability: Civil and Criminal Forensic Issues


Courts recognize that those who are involved in medico-legal proceedings have a stake in the outcome of their psychological assessment, regardless of whether they are high- or low-functioning individuals. Accounting for the validity of the evaluation in low-functioning examinees is frequently made more difficult by impairment; when evaluating testimony from people with intellectual disability (ID), neuropsychologists and psychologists must acknowledge the differences between the medico-legal evaluation and the clinical evaluation. This book provides helpful guidelines for assessing validity in low-functioning claimants. It charts recent advances in psychological and neuropsychological assessment pertaining to civil and criminal proceedings while examining issues such as validity and motivation, assessments of disability, criminal and civil capacities, capital cases, Miranda waiver cases, and others. In disability cases, the Social Security Administration has had a long-standing policy that prevents neuropsychologists and psychologists from using validity instruments - yet, using this book, an accurate and valid assessment can still be obtained. Evaluators who perform assessments in capital cases will find up-to-date discussions of the Flynn Effect, measurement of intellectual functioning, problems associated with the assessment of adaptive functioning, and the challenge of validity assessment. Miranda waiver evaluations for those with low IQ are discussed concerning issues of capacity measurement, including reading and language analysis for the Miranda advisement in the particular jurisdiction in question. Testamentary capacity is discussed at length, showing how understanding of the legal standard is helpful in guiding the examination. Competency to stand trial, or adjudicative competence, is the main topic in the area of criminal competencies, with exploration of the Dusky standard and the various tests used to evaluate this competence, focusing on individuals with ID.


In the realm of medicolegal assessment, people are motivated to achieve a particular goal. Disability claimants are seeking compensation for a problem that renders them unable to work. Criminal defendants want their punishments lessened or to be found not responsible for their crimes. These goals are what distinguish medicolegal cases from clinical consultations, in which examinees are seeking to know what is wrong and how to get help.

Truly intellectually disabled people may have a host of problems with the forensic assessment. The importance of the tasks or questions may not be fully appreciated; the need to camouflage the true nature of misleading responses may not be apparent; and a naiveté about what is already known about them and about the consequences of their responses may confound their response. Lower-IQ individuals are prevalent in the criminal justice system. Indeed, the mean IQ of pretrial and presentence male criminal evaluees in a federal forensic hospital was 80.93 ± 14.49 (Ardolf, Denney, & Houston, 2007).

To achieve forensic goals, the examinee might wish to have the findings go a particular way. In a capital case involving the death penalty, for example, the ultimate punishment in the case will turn on whether the defendant is found to be intellectually disabled (still termed “mentally retarded” in many state laws). In Social Security disability examinations, whether a claimant meets a listing requirement for intellectual disability may depend on precisely where an IQ score lies. The examinee’s motivations in these medicolegal scenarios may create a strong pressure to manipulate the scores in the direction that achieves these goals.

The common denominator in widely differing medicolegal cases is “secondary gain,” which is a term coined by Freud in 1913 to describe the motivation for external rewards or the avoidance of punishment. Disability claimants who deliberately reduce the quality of performance to lower their IQ scores for compensation are engaging in the same behavior as capital defendants who seek to have low enough IQ findings to avoid the death penalty.

The impact and measurement of secondary gain issues is not a simple matter. In assessments with motivated examinees, IQ and other cognitive . . .

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