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Forensic Psychology 4th Edition Pozzulo Forth Bennell Instructors Manual

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Forensic Psychology 4th Edition Pozzulo Forth Bennell Instructors Manual

  • ISBN-10:0133098281
  • ISBN-13:978-0133098280

 

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Forensic Psychology 4th Edition Pozzulo Forth Bennell Instructors Manual

  • ISBN-10:0133098281
  • ISBN-13:978-0133098280

 

 

 

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CHAPTER 10
Risk Assessment

LEARNING OBJECTIVES

 Define the components of risk assessment.
 List what role risk assessments play in Canada.
 Describe the types of correct and incorrect risk predictions.
 Differentiate among static, stable, and acute dynamic risk factors.
 Describe unstructured clinical judgment, actuarial prediction, and structured professional judgment.
 List the four major types of risk factors.

OUTLINE
What Is Risk Assessment?
 Early conceptualizations of risk involved a dichotomy between dangerous and not dangerous; current models consider that risk is a range and examine probability of committing violent acts. Probability accounts for considerations: probability may change over time, and that level of risk interacts with personal, background, and situational characteristics.
 An assessment of risk includes two components: prediction and management. Prediction involves an analysis of the likelihood of future criminal or violent act, while management consists of the development of strategies to manage or reduce this level of risk.
 The critical function of risk prediction should emphasize violence prevention over violence prediction.

Risk Assessments: When Are They Conducted?
 Risk assessments are conducted in civil and criminal contexts. Civil contexts refer to the private rights of individuals and the legal proceedings connected with such rights. Criminal contexts refer to situations in which an individual has been charged with a crime.
 Civil settings include:
– Civil commitment requires a person to be hospitalized involuntarily if they have a mental illness and pose a threat to themselves or others. A mental health professional would assess risk of harm.
– Child protection contexts involve laws in place to protect children from abuse. Government protection agencies assess risk of child maltreatment, and focus on risk factors that predict child maltreatement.
– Immigration laws prohibit admission if individuals into Canada if there are reasonable grounds to believe they will engage in acts of violence.
– School and labour regulations provide provisions to prevent any act that would endanger others.
– Mental health professionals also must consider the likelihood that patients will act in a violent manner and to intervene to prevent violence. This is called a duty to warn and limits confidentiality when violence or threats are indicated.
 Criminal settings include:
– Assessment of risk occurs at pretrial, sentencing, and release stages. Risk assessments help to determine whether custodial or community sanctions may be more appropriate (especially for young offenders). The important issue of disclosure of information about potential risk also exists in criminal settings. Confidentiality must be set aside for the protection of members of the public in cases of clear, serious or imminent danger (i.e.Remember,licitor-client privilege).
– Risk assessment is critical in sentencing decisions involving dangerous and long-term offenders, such as review of indeterminate sentences and whether the offender should get statutory release after two-thirds of their sentence.
– Assessment of NCRMD patients also is conducted before release from a secure forensic psychiatric facility.
Types of Prediction Outcomes
 There are four types of outcomes in making predictions (See Table 10.1):
1. A true positive is a correct prediction of a person predicted to be violent and who does engage in violence.
2. A true negative is a correct prediction of a person predicted not to be violent and who does not act violently.
3. A false positive is an incorrect prediction of a person predicted to be violent but is not.
4. A false negative is an incorrect prediction of a person predicted to be non-violent but acts violently.
 Each of these errors has different consequences, with false positive errors affecting the offender and false negative errors affecting society and potential victims.
 Base rates represent the percentage of people within a given population who commit a criminal or violent act. Base rates can affect predictions when they are too high or too low (i.e., false positives occur when the base rate is low).
A History of Risk Assessment
 Research stemming from the Baxstrom and Dixon cases in the 1960s/70s found that the base rate for violence was relatively low and the false positive rate was very high (Steadman & Cocozza, 1974; Thornberry & Jacoby, 1979). These studies called into question the ability of mental health professionals to make accurate predictions of violence. While skepticism still existed, it was determined that risk assessments did not violate the basic principles of fundamental justice and were still permitted in court.
 Canadian courts support the role of mental health professionals in the prediction of violent behaviour, and have focused on admissibility requirements in relation to how relevant they are in a case, not whether or not they are infallible.
Methodological Issues
 Evaluating risk assessment instruments presents a challenge to researchers because of ethical constraints in assessing and then releasing all types of offenders to determine if they re-offend.
 Monahan and Steadman (1994) have identified the following three main weaknesses of research on the prediction of violence:
1. The limited number of risk factors being studied.
2. How the criterion variable is measured.
3. How the criterion is defined.
Judgment Error and Biases
 Some typical errors and biases in clinical decision making include the use of heuristics, illusory correlations, ignorance of base rates, reliance on salient and unique cues, and overconfidence in judgments.
Approaches to the Assessment of Risk
 Three methods most commonly described include:
1. Unstructured clinical judgment is characterized by professional discretion and a lack of guidelines or standardization in what factors into decisions (see Box 10.1).
2. Mechanical prediction involves predefined rules about the risk factors considered, how the information is collected, and how the information is combined to reach a decision. Actuarial prediction is a type of mechanical prediction whereby the risk factors have been selected and combined based on their empirical or statistical association with a specific outcome. Empirical evidence favours actuarial prediction over unstructured clinical judgment.
3. Structured professional judgment involves the use of a predetermined list of risk factors selected from research and professional literature, with the final judgment of risk based on the evaluator’s professional judgment, to allow for individual and situational factors to be considered in risk levels.
 In general, violence risk assessment approaches have four components, but each is not always employed across different assessment methods, see Table 10.2 (Skeem & Monahan, 2011):
– Identifying empirically valid risk factors
– Determining a method for measuring (or ‘scoring’) these risk factors
– Establishing a procedure for combining scores on the risk factors
– Producing an estimate of violence risk
Types of Predictors
 Risk factors are measurable features of an individual that predict the behaviour of interest. Traditionally, risk factors were divided into two main types. Static risk factors do not fluctuate over time and are highly resistant to change. Dynamic factors fluctuate over time, are changeable, and have also been called criminogenic needs.
 More recently, risk factors are considered a continuous construct, with static factors at one end and acute dynamic factors at the other.
 Recent research has reported associations between dynamic risk factors and the imminence of engaging in violent bahviour (Quinsey, Jones, Book, & Barr, 2006), and some argue that consideration of time-dependent dynamic factors with static factors lead to greater predictive accuracy (Jones, Brown, & Zamble, 2010).

Important Risk Factors
 Research has investigated factors associated with future violence and classified them into groups of historical, dispositional, clinical, and contextual risk factors.
 Historical risk factors (also static risk factors) are events experienced in the past, such as past criminal behaviour, age of onset, childhood history of maltreatment, past supervision failure, escape, and institution maladjustment.
 Dispositional risk factors reflect the person’s traits, tendencies, or style, such as demographics (e.g., age of first offence, male gender), criminal attitudes, and personality characteristics (e.g., impulsivity and psychopathy).
 Clinical risk factors are the symptoms of mental disorders that can contribute to violence, such as substance use (direct and indirect effects) and mental disorder (e.g., major psychoses).
 Contextual risk factors (also called situational risk factors) are aspects of the individuals’ current environment that can elevate risk, such as lack of the four kinds of social support (instrumental, emotional, appraisal, and information), and access to weapons or victims.
 Specific risk factors for predicting terrorism may differ from general violence. Factors such as ideology, affilitations, grievances, and moral emotions should be evaluated (Monohan, 2012) over and above regular risk factors (see Box 10.3).
 Some of these factors are likely relevant to risk assessment only, while others are relevant to both risk assessment and risk management.
 These factors vary in terms of how much they are subject to change. For exampleRemember,me are fixed (e.g., gender)Remember,me cannot be undone (e.g., age of onset of criminal behaviour), and some may be resistant to change (e.g., psychopathy), whereas others (e.g.Remember,cial support or negative attitudes) may be subject to intervention or may vary across time.
 Meta-analytic studies have revealed that factors that predict general recidivism also predict violent or sexual recidivism, and that predictors of recidivism in offenders with mental disorders overlap considerably with predictors found among offenders who do not have a mental disorder (Bonta et al., 1998; Gendreau, Little, & Goggin, 1996; Hanson & Morton-Bourgon, 2005).
Risk Assessment Instruments and Predictive Accuracy
 Actuarial Instruments:
– Violence Risk Appraisal Guide (VRAG; Harris, Rice, & Quinsey, 1993) assesses the long-term risk for violent recidivism in offenders with mental disorders, civil psychiatric patients, and sexual offenders.
– Static-99 (Hanson & Thornton, 1999) is a ten-item actuarial scale designed to predict sexual recidivism. All items on this scale are static in nature. The developers have also developed the Static-2002 (Hanson & Thornton, 2003), which includes additional risk factors, such as persistence of sexual offending, deviant sexual interests, and general criminality (see Box 10.4).
 Actuarial instruments are comprised mostly of static risk factors, which have several limitations. They provide little practical information about what risk factors need to be targeted for intervention, do not allow for the incorporation of change as in gains or failure on the part of the offender, and they are not theoretically derived.
 Structured Professional Judgment Schemes:
– HCR-20 (Webster, Douglas, Eaves, & Hart, 1997) was designed to predict violent behaviour in correctional and forensic psychiatric samples. It consists of 3 scales; historical (mostly static factors), clinical (current dynamic factors), and risk management (future adjustment of individual).
– Violence Risk Scale (VRS; Wong & Gordon, 2006) assesses risk of reoffending and incorporates what treatment goals need to be set to reduce this risk. Both static and dynamic variables are included (see Box 10.4).
– Level of Service – Case Management Inventory (LS/CMI; Andrews, Bonta, & Wormith, 2004) is a comprehensive risk/need assessment and treatment planning system, with items that are designed to measure the “Central Eight” risk factors that have been reliably associated with recidivism (see Box 10.4).
 Recent meta-analysis of predictive effectiveness of several risk assessment measures for institutional violence and violent recidivism (Campbell, French, & Gendreau, 2009) found that all the measures were predictive of institutional violence and violent reoffending. All the scales were equally predictive of violent recidivism, whereas the HCR-20 and Level of Supervision Inventory-Revised (LSI-R; Andrews & Bonta, 1995) were the most predictive of institutional violence.

Current Issues
 Research on risk assessment is missing a theoretical background, requiring an understanding of why the identified risk factors are related to violence. One model used to explain criminal recidivism, the coping-relapse model (Zamble & Quinsey, 1997) is presented in Box 10.5.
 Although gender-specific risk factors may exist, the research to date has found more gender similarities than differences in both adolescents and adults (Blanchette & Brown, 2006). Although women commit less crime than menRemember,me risk factors that occur more commonly in women include history of self-injury and self-esteem problems (see the In the Media box for a discussion of the Ashley Smith case). In addition, women are more likely to target family members, and have a major mental illness, but reoffend at a lower rate.
 Some risk assessment instruments such as the LSI-R and the HCR-20 have shown some success at predicting recidivism in women. Andrews and colleagues (2012) found that both the LS/CMI eight risk domains and the total risk/needs score were equally predictive of general recidivism in an aggregate sample of female and male offenders, with substance abuse being more predictive of recidivism in females than males.
 Protective factors are those factors that mitigate or reduce the likelihood of antisocial acts or violence in high-risk offenders (i.e., prosocial involvement, strong social supports, strong attachments, intelligence). They vary across time and the impact they have depends on the situation. They also provide possible explanations as to why some individuals with many risk factors do not become violent.
 There are limitations to risk assessment instruments that need to be considered such as use of group data to obtain probability of offending, the meaning of low, moderate, and high risk statements, the generalizability of the risk measures to other samples or countries, the field reliability of the measures, and minimizing the use of jargon in risk reports.
 There is a gap between science and practice. Many professionals are have not been using standardized risk assessments in their clinical work (Boothby & Clements, 2000; Borum, 1996), although there is some indication this may be changing (Viljoen, McLachlan, & Vincent, 2010).
 There is little research on why offenders stop committing crime. Age, employment, and marital relationships are factors that are related to desistance (see Box 10.6).

SUGGESTED LECTURE ACTIVITIES

What is Risk Assessment?
 Read some recent newspaper articles to the class about prisoners or forensic patients recently released from an institution. Ask them to provide you with reasons if and why they agree or disagree with the release decisions present in each case. You could use one or two cases throughout to follow through as you teach about types of risk and protective factors and instruments.

Types of Prediction Outcomes & Judgment Error and Biases
 Provide actual or hypothetical case examples containing prediction errors and have the class name what error has occurred and state what the implications are

Approaches to the Assessment of Risk
 Have the class debate whether or not they believe that mental health professionals should be able to predict violence in court cases, why or why not. Have them include any issues to support their opinions (e.g., methodological issues, accuracy, and biases).

Important Risk Factors
 Provide the class with information on real cases ( case studies) and have them identify the different static and dynamic risk factors present.

Risk Assessment Instruments
 Provide the class with a detailed case study as well as an actual risk assessment tool. Have students provide their personal opinion on the level of risk posed by the offender. Next, have students conduct a risk assessment using the actuarial tool. Demonstrate the difference between unstructured clinical judgment and actuarial tools.
 Have the class decide on how they would develop a new risk assessment scale (e.g., to predict hostage-taking in institutions). Have them suggest different risk factors they might consider and how they would determine the accuracy of their new scale.

What About Female Offenders?
 Have the class discuss what factors they believe to be associated with female violence, and what factors may protect against female violence. Do they think different risk fctors and protective factors exist for males and females? Why or why not?

Why Do Some Invididuals Stop Committing Crime
 Discuss the basic factors associated with desistence, and break the class into small groups. Ask them to design a study with their group that could examine these and other factors – how would they determine factors associated with desistence and measure these?

PEER SCHOLAR EXERCISE(S)

The discussion and research questions at the end of the chapter (located below) can be used as peerScholar assignments (www.pearsoned.ca/peerscholar). Students are expected to write a 500 word response to the question (using at least one empirical reference incorporated into their response) and submit it online through peerScholar where an anonymous and randomly-assigned group of their peers will review and evaluate it. Peers will be required to read and provide constructive comments (and a grade out of 100 points, see Instructions and Tips) for three randomly assigned papers from questions different from the one they themselves completed. Peer grades will be averaged and make up a portion of the individual student’s grade (e.g., 5%). All students also will be given a grade out of 100 points for their feedback on other papers according to the Instructions and Tips specified by the instructor (see below) and this could count for another portion of the overall student grade (e.g., 5%). Students will then receive feedback from their classmates on their paper and have a chance to revise their paper prior to submitting to the professor for a paper grade out of 100 points (worth say 5%) that is then combined with the other grades for a total of 15% or some value as determined by each individual instructor. This entire process will be anonymous. For more information about peerScholar, contact your Pearson sales representative.

DISCUSSION QUESTIONS:

1) You have decided to take a summer job working at Correctional Service Canada. You are asked to help to devise a study to evaluate the accuracy of a new instrument designed to predict hostage-taking by federal offenders. How would you approach this task?

2) A school board wants to know how to identify the next potential school shooter and has contacted you for your expertise. Describe what you know about problems with trying to identify low base-rate violent acts.

RESEARCH QUESTIONS:

1) Numerous risk assessment measures have been developed to help psychologists but not all psychologists conducting risk assessments are using these measures. Which risk measures are being used most often? What do you think can be done to encourage forensic psychologists to use risk assessment measures?

2) You are a forensic experimental psychologist wanting to do a study to find out why offenders decide to stop offending. You first need to find out what research has been conducted on offender desistance. What are some of the primary factors relating to desistance?

INSTRUCTIONS AND TIPS (to be provided to students as grading criteria)

All students must leave at least 5 comments per paper they read. Comments must be constructive (i.e., other things the student could consider, ways concepts could be clarified) rather than destructive (i.e., this is a stupid argument, the writing sucks). Remember that ALL students are also being evaluated on the QUALITY of feedback that they provide to their peers – so make it count!

Consider the following questions when providing a grade for your peers, and assign a grade of 20 points to each evaluation criteria, to provide a total overall paper grade out of 100 points.
a) Was the paper written clearly?
b) Did the author make clear arguments that are backed up with facts?
c) Did the author use additional resources (minimum one) to support their arguments and was this done effectively?
d) Did the author answer the discussion/research question appropriately?
e) Overall impression (sentence structure, fluidity, grammar, spelling).

SUGGESTED READINGS

Andrews, D. A., Guzzo, L., Raynor, R., Rowe, R. C., Rettinger, L. J., Brews, A., & Wormith, J. S. (2012). Are the major risk/need factors predictive of both male and female reoffending? A test with the eight domains of the Level of Service/Case Management Inventory. International Journal of Offender Therapy and Comparative Criminology, 56, 113-133.

Helmus, L., Hanson, R. K., Thornton, D., Babchishin, K. M., Harris, A. J. R. (2012). Absolute recidivism rates predicted by Static-99 and Static-2002R sex offender risk assessment tools vary across samples: A meta-analysis. Criminal Justice and Behavior, 39, 1148-1171.

Mills, J. F., Kroner, D. G., & Morgan, R. D. (2010). Clinician’s guide to violence risk assessment. New York, NY: Guilford Press.

Olver, M. E., Wong, S. C. P. (2009). Therapeutic responses of psychopathic sexual offenders: Treatment attrition, therapeutic change, and long-term recidivism. Journal of Consulting and Clinical Psychology, 77, 328-336.

Olver, M. E., Stockdale, K. C., & Wormith, J. S. (2011). A meta-analysis of predictors of offender treatment attrition and its relationship to recidivism. Journal of Consulting and Clinical Psychology, 79, 6-21.

Quinsey, V.L., Harris, G.T., Rice, M.E., & Cormier, C.A. (2006). Violent offenders: Managing and appraising risk (2nd ed.). Washington, DC: American Psychological Association.

Ruiz, M. A., Douglas, K. S., Edens, J. F., Nikolova, N. L., & Lilienfeld, S. O. (2012). Co-occurring mental health and substance use problems in offenders: Implications for risk assessment. Psychological Assessment, 24, 77-87.

Wormith, J. S., Hogg, S., & Guzzo, L. (2012). The predictive validity of a general risk/needs assessment inventory on sexual offender recidivism and an exploration of professional override. Criminal Justice and Behavior, 39, 1511-1538.

Yang, M., Wong, S.C.P., & Coid, J. (2010). The efficacy of violence prediction: A meta-analytic comparison of nine risk assessment tools. Psychological Bulletin, 136, 740-767.

SUGGESTED ONLINE VIDEO RESOURCES

1) Incorporating Mental Health/Substance Use Programming and Risk Models in Mental Health Courts (Justice Center, 2013). By focusing on individuals with moderate to high criminogenic risk levels and serious behavioral health needs, mental health courts can position themselves to effect the greatest reduction in recidivism and target scarce behavioral health resources to those who need them most. This session will explore the importance of assessing for and responding to both the behavioral heath needs and criminogenic risk factors of program participants. Speakers will provide an overview of Risk-Need-Responsivity (RNR) principles and how they may be used to refine a mental health court program’s target population and coordination of treatment and supervision (41:06).
LINK: http://www.youtube.com/watch?v=LJ39q_hyCL4

2) Reducing Recidivism (Justice Management Institute, 2013). Franklin Cruz, Senior Program Manager at the Justice Management Institute, provides an overview of the lessons from the research — the Risk, Need, Responsivity Principles. These principles, first defined by researchers Andrews and Bonta in 1990, have provided the basis for much of what we now know as “smarter sentencing” and has been influential in enhancing pretrial services and other justice system interventions (1:06).
LINK: http://www.youtube.com/watch?v=4C3CbGyRw7c

3) Canada’s Prison System Still ‘Ill-Equipped’ to Manage Female Inmates Six Years After Ashley Smith’s Death (Global News, 2013). Six years after teenage inmate Ashley Smith killed herself in a prison cell, Canada’s correctional system still struggles to manage mentally ill female offenders who chronically hurt themselves, says a new report from the country’s prison watchdog (8:02).
LINK: http://globalnews.ca/news/872159/canadas-prison-system-still-ill-equiped-to-manage-female-inmates-six-years-after-ashley-smiths-death/

4) Understanding the Risk/Need Principle (Justice Center, 2011). The risk principle states that higher-risk offenders should receive more intensive services and supervision than lower-risk offenders. In fact, research suggests providing low-risk offenders with intensive interventions or mixing them in groups with high-risk offenders can actually increase their level of risk. The need principle states that the type of intervention a person receives matters a great deal. Corrections officials should target a person’s greatest criminogenic needs. Criminogenic needs are defined as the dynamic risk factors that affect a person’s risk for recidivism. Officials should conduct criminogenic need assessments to prioritize those factors that have the greatest influence on the person’s likelihood of recidivating. Dr. Ed Latessa, from the University of Cincinnati, demystified the risk and need principles and highlighted the critical elements of effective risk-reduction programs (59:48).
LINK: http://www.youtube.com/watch?v=cYRcBgyCmCI

5) Maximizing Impact in an Era of Scarce Resources: Aligning People and Programs (Justice Center, 2011). The importance of risk, needs, and responsivity to public safety outcomes has only recently been applied to individuals with serious mental illnesses. Dr. Skeem reviews her research in this area and suggests strategies to ensure the right people are accessing the right package of treatment and supervision (1:03:08).
LINK: http://www.youtube.com/watch?v=eOC3yE9mB9o

SUMMARY OF COURT CASES

Smith v. Jones (1999)
Facts:
 The defence counsel did not disclose to the courts a report by a psychiatrist which indicated that the accused was a danger to the public.
 The trial judge ruled that the public safety exception released the psychiatrist from his duties of confidentiality and had a duty to disclose.
 The Supreme Court ruled that public safety outweighs solicitor-client privilege in cases where there is “clear, serious, and imminent danger”.
Summary:
The accused was charged with aggravated sexual assault of a prostitute. A psychiatrist assessed the accused prior to sentencing and was of the opinion that the accused was a dangerous person. The defence counsel, aware of the psychiatrist’s concerns, did not raise the issue in the sentencing hearing. The psychiatrist brought forth an action for a declaration that he was entitled to disclose the information he had in his possession in the interests of public safety. The trial judge ruled that the public safety exception to the law of solicitor-client privilege and doctor-patient confidentiality released the psychiatrist from his duties of confidentiality, and both the accused’s statements made to the psychiatrist and his opinion were to be disclosed. The accused appealed to the Court of Appeal, which ruled that the mandatory order to disclose was to be changed to only permitting the psychiatrist to disclose the information to the Crown and police. The Supreme Court of Canada dismissed the appeal of the accused, ruling that the solicitor-client privilege is to be set aside “where facts raise real concerns that an identifiable individual or group is in imminent danger of death or serious bodily harm.” In these instances, the disclosure should be limited to only the information necessary to protect the public. In this particular case, the psychiatrist had a reasonable belief that the accused posed a clear, serious and imminent danger, based on his detailed plan to attack prostitutes in a specific area. The solicitor-client privilege attaching to the psychiatrist’s report must therefore be set aside.
Moore and the Queen (1984)
Facts:
 Moore was convicted of a serious personal injury offence for which the potential prison sentence was in excess of 10 years.
 The Crown notified the court of its intention to advance a dangerous offender application.
 The defendant submitted an application arguing that dangerous offender legislation infringes upon principles of fundamental justice, namely in view that the evidence submitted by mental health professionals pertaining to level of dangerousness is merely speculative.
 The judge concluded that the testimony of psychiatric experts does have probative value in the prediction of future violence and does not infringe upon the provisions outlined in the Canadian Charter of Rights and Freedoms.
Summary:
The defendant was convicted of a serious personal injury offence for which she could be sentenced to imprisonment for 10 years or more and was notified of the Crown’s intention to advance a dangerous offender (DO) application. At this juncture, Moore submitted an application attesting that the DO legislation articulated under Part XXI of the Canadian Criminal Code infringed upon various provisions of the Canadian Charter of Rights and Freedoms. Among other points, Moore’s Defence argued that Part XXI violates fundamental justice on the basis that expert psychiatric evidence as to future dangerousness is inherently speculative and lacks probative (i.e., relevant or logical) value. The judge admitted that evidence provided by mental health professionals frequently borders on speculation and at times, holds no greater predictive accuracy than the opinion of a lay person. However, it is ultimately the court that renders the final evaluation of an offender’s level of dangerousness – not the expert witness. The expert is still in a position to assist the court in the provision of testimony relevant to specific psychological disorders and in rendering a professional opinion as to the likelihood of future harm. Further, even if declared a dangerous offender, the offender’s level of risk is subject to periodic review by the National Parole Board. Therefore, the judge concluded that the testimony of mental health professionals does have probative value in the prediction of future violence and does not infringe upon the provisions outlined in the Charter. The defendant’s application was dismissed.

R. v. Lyons (1987)
Facts:
 Lyons pled guilty to breaking and entering, unlawfully using a weapon or imitation thereof in the commission of a sexual assault and during the commission of an indictable offence, and unlawfully stealing property of a value in excess of $200.
 The defendant appealed the dangerous offender ruling on the basis that expert psychiatric testimony, being fallible in its predictive accuracy, fundamentally violates the provisions guaranteed under the Canadian Charter of Rights and Freedoms.
 The appeal was rejected on the basis that it is relevance and not infallibility that bears significance on the value of expert testimony.
Summary:
This particular case pertains to the admissibility of expert psychiatric testimony in dangerous offender (DO) hearings. The defendant, John Patrick Lyons, pled guilty to the following four offences, committed approximately one month following his sixteenth birthday: 1) breaking and entering, 2) unlawfully using a weapon or imitation thereof in the commission of a sexual assault, 3) unlawfully using a weapon or imitation thereof in the commission of an indictable offence, and 4) unlawfully stealing property of a value in excess of $200. The defendant opted to a trial by judge on all charges. Prior to the sentencing hearing, the Crown advanced a dangerous offender (DO) application under Part XXI of the Canadian Criminal Code. On the basis of all the evidence including expert psychiatric testimony on behalf of both the Crown and Defence, the trial judge concluded beyond a reasonable doubt that Lyons qualified as a dangerous offender given his “sociopathic personality” and high likelihood of recidivism. The defendant was therefore sentenced to an indeterminate term of imprisonment. The Defence appealed on the grounds that the procedures by which Lyons’s DO status was determined were fundamentally flawed and unfair, violating one’s rights guaranteed under the Canadian Charter of Rights and Freedoms. Namely, it was argued that the standard of proof required under Part XXI (i.e., use of psychiatric testimony) is lower that that traditionally required in the criminal law process given that expert testimony is an unreliable predictor of future conduct. The appeal was rejected on the grounds that the Criminal Code simply defines the notion of dangerousness as probability of risk, not certainty of harm. The fact to be established in such cases is a likelihood of recidivism or potential for harm – not infallible proof of the future commission of harm. Psychiatric evidence is deemed relevant to the determination of one’s likelihood to behave in a certain manner and is in all probability superior in this regard to testimony of other clinicians and lay persons.

 

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