"One Flew Over The Cuckoo's Nest" (1974):  By "Cuckoo's Nest" we mean the Criminal Justice System

The DSM 5 - The Criminal Justice System wheel of fortune

THIS IS A LITTLE BIT LIKE "WHEEL OF FORTUNE" -- EXCEPT INSTEAD OF LETTERS, WE'LL BE UNCOVERING -- 


  • the State of the Science

  • ABA Criminal Justice Standards on Mental Health
​
  • Evidentiary Issues
​
  • Constitutional Issues
​
  • CO's Competency to Proceed & Insanity Statutes​​

Let us know when you've solved the PUZZLE -- The Winner gets a $10 gift card to Starbucks.  But we will include later winners as Honorable Mentions.


"Houston, we have a problem."

​

State of the Science

Dr. Thomas Insel, former Director of the National Institute of Mental Health -- to paraphrase there is much we DON'T KNOW -- We're in an AGE OF DISCOVERY.
Addresses the problem of indeterminacy in psychiatry and its social, moral and legal implications
https://global.oup.com/academic/product/vagueness-in-psychiatry-9780198722373?cc=us&lang=en&
​
 Picture
Neuro
​science News
January 4, 2019 

“But we needed to take an agnostic approach and let the data tell us what the brain-behavioural profiles of our study participants looked like.

 It turned out that the relationship between brain function and social behaviour had nothing to do with conventional diagnostic categories in the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders).”

-------Dr. Aristotle Voineskos in the Campbell Family Mental Health Research Institute at the Centre for Addiction and Mental Health (CAMH) in Toronto

Neuroscience News
Brains of People With Schizophrenia Related Disorders Aren’t All the Same

https://neurosciencenews.com/schizophrenia-neurobiology-10430/


​American Bar Association criminal justice standards on mental health (2016)


Standard 7-1.1. Terminology

 (a) Unless otherwise specified, these Standards adopt the definition of “mental disorder” found in the current Diagnostic and Statistical Manual of the American Psychiatric Association. * In the settings addressed by the Standards, mental disorder is most likely to encompass mental illnesses such as schizophrenia, bipolar disorder, and major depressive disorders; developmental disabilities that affect intellectual and adaptive functioning; and substance use disorders that develop from repeated and extensive abuse of drugs or alcohol or some combination thereof. 


​Evidentiary Issues

Testimony by experts

Some Common Evidentiary Considerations

When considering evidentiary issues -- there is often the consideration of the:
  • Weight of the Evidence [the trier of fact can give the evidence whatever weight they want to]
versus
  • The Admissibility of the Evidence [evidence may be excluded and the trier of fact may not consider it]

Further, when considering evidence that is "unfairly prejudicial" and must be excluded:
  • the emphasis is really on "unfairly"
  • a lot of evidence is "prejudicial" -- it is only if it is "unfairly" prejudicial that it is excluded under Rule of Evidence 403
Federal Rule of Evidence 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

https://www.law.cornell.edu/rules/fre/rule_702​
Colorado Rule of Evidence 702. Testimony by Experts

​If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

DSM 5

Basis of opinion testimony by experts

So what is the problem:

Mental Health Researchers @ the Highest Level -- the US National Institute of Mental Health will NOT rely on the categories in the DSM 5 because they lack scientific validity.

The vast majority of Clinicians & Mental Health professionals  rely on these categories because they don't have anything else.

Where this is really something approaching an unwitting Ethnic Cleansing & Holocaust is in the Criminal Justice System with regard to the mass diagnosis of   "Anti-Social Personality Disorder" for any bad conduct we don't really understand.

We hesitate to use such strong language because there is going to be a LOT OF PUSH BACK  BUT the damage done by this unscientific diagnosis of "Anti-Social Personality Disorder" which is really Code for Evil/Bad Person -- is hard to overstate.
Rule 703 – Bases of an Expert

​An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

​But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
Daubert Standard

Definition
This is the standard used by a trial judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning that which can properly be applied to the facts at issue.

Overview
This standard comes from the Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).

Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are:
  • (1) whether the theory or technique in question can be and has been tested;
  • (2) whether it has been subjected to peer review and publication;
  • (3) its known or potential error rate;
  • (4) the existence and maintenance of standards controlling its operation; and
  • (5) whether it has attracted widespread acceptance within a relevant scientific community.

The Daubert standard is the test currently used in the federal courts and some state courts.  In the federal court system, it replaced the Frye standard, which is still used in some states.  
https://www.law.cornell.edu/wex/daubert_standard

Colorado uses the Daubert Standard
https://www.testifyingtraining.com/daubert-frye-used-expert-witness-testimony-admissibility-colorado/
  • (1) whether the theory or technique in question can be and has been tested;
  • (2) whether it has been subjected to peer review and publication;
  • (3) its known or potential error rate;
  • (4) the existence and maintenance of standards controlling its operation; and
(5) whether it has attracted widespread acceptance within a relevant scientific community
CRS 13-25-128. Rules of evidence - grant of authority subject to reservation

The supreme court of the state of Colorado shall have the power to prescribe general rules of evidence for the courts of record in the state of Colorado.

Such rules of evidence shall be construed to be rules of practice and procedure and shall not be construed in such manner that such rules would fix, abridge, enlarge, modify, or diminish any substantive rights.

The general assembly specifically reserves to itself the power to enact laws relating to substantive rights including, but not limited to, laws modifying or eliminating said rules of evidence.

Due Process -- Vagueness Doctrine

Vagueness doctrine Definition)

A constitutional rule that requires criminal laws to state explicitly and definitely what conduct is punishable. 

Criminal laws that violate this requirement are said to be void for vagueness.  Vagueness doctrine rests on the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. 

By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.

2) Under vagueness doctrine, a statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

Illustrative caselawSee, e.g. Skilling v. United States, 130 S.Ct. 2896 (2010).

https://www.law.cornell.edu/wex/vagueness_doctrine



Grayned v. City of Rockford, 408 U.S. 104 (1972)

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.

Vague laws offend several important values.

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair warning.[n3] 

​Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.[n4] 

A vague law impermissibly delegates [p109] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.[n5] 

Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms,"[n6] it "operates to inhibit the exercise of [those] freedoms."

https://www.law.cornell.edu/supremecourt/text/408/104

Equal Protection Clause
--14th Amendment to the US Constitution

ABA Journal

14th Amendment should be used to ensure equal protection for those with disabilities
By ABA [American Bar Association] President Linda Klein (2017)

The 14th Amendment, and especially its Equal Protection Clause, has been a powerful tool in the battle for civil rights in our courts ever since the 1954 Brown v Board of Education ruling that determined schools segregated by race were unconstitutional.

While the 14th Amendment has been used to uphold the rights of women and minorities, it has not proven as effective in the disability rights movement, due mainly to a U.S. Supreme Court ruling more than 30 years ago.

In 1985, the Supreme Court ruled in City of Cleburne v. Cleburne Living Center, Inc. that a permit for group home for mentally disabled people should be granted.

But despite the ruling in favor of the home, the court did not find that the mentally disabled were in a class that was historically subjected to discrimination.

Therefore, they were not entitled to a stricter level of review under the Equal Protection Clause of the 14th Amendment.

http://www.abajournal.com/news/article/14th_amendment_should_be_used_to_ensure_equal_protection_for_those_with_dis

rational basis review [Under Equal Protection]
Rational Basis TestOverviewThe rational basis test is a judicial review test. A judicial review test is what courts use to determine the constitutionality of a statute or ordinance. 

The Requirements of the Test to pass the rational basis test, the statute or ordinance must have a legitimate state interest, and there must be a rational connection between the statute's/ordinance's means and goals.

https://www.law.cornell.edu/wex/rational_basis_test

Discussion of City of Cleburne v. Cleburne Living Center (1985), a Supreme Court case which found no rational basis for refusing to grant a permit to a group home for individuals with intellectual disabilities.  

The language of the time "mental retardation" has since been socially rejected.

The Canon of Rational Basis Review