Committee on Legal Issues 2013 Annual Report

Mission

The Committee on Legal Issues (COLI) is an ad hoc Committee that reports through the APA Board of Directors while maintaining a close working relationship with APA’s General Counsel and related staff.  The overarching mission of COLI is to provide and promote expertise on psycho-legal issues and trends.

Members

COLI consists of nine APA members with broad expertise and interests in psycho-legal issues.  Membership on COLI is on a rotating basis, with members appointed for three-year terms.  Michael W. Pearce, JD, PhD served as COLI’s Chair for 2013. The members of COLI for 2013 included:

  • 3rd  Year Class:  Lori J. Butts, JD, PhD; Craig R. Lareau, JD, PhD; Marc W. Pearce, JD, PhD
  • 2nd Year Class:  Terese A. Hall, JD, PhD; Melissa J. Westendorf, JD, PhD; Jennifer L. Woolard, PhD
  • 1st  Year Class:  A. Steven Frankel, PhD, JD; Michele Galietta, PhD; and Richard A. Wise, JD, PhD

Meetings

COLI convened two meetings in 2013 on March 15-16 and November 1-2, in Washington, DC, in conjunction with the APA Consolidated Meetings.

Summary of COLI Activities

COLI Amicus Review

COLI reviewed and issued recommendations to the Board of Directors for APA involvement as amicus curiae in eight cases.  Of the eight cases, five addressed the issue of marriage equality (two cases in the US Supreme Court, two consolidated cases in the Ninth Circuit and another in the New Mexico Supreme Court).  Others issues addressed by APA in amicus briefs filed this year addressed eyewitness identification, false confessions, and the application of mental disability to the death penalty.

Marriage Equality:

Hollingsworth v. Perry (US Supreme Court) - This case addresses a challenge to Proposition 8 (or the California Marriage Protection Act), a ballot proposition and constitutional amendment passed in the 2008 state elections which provides that “only marriage between a man and a woman is valid or recognized in California.   APA filed an amicus brief in February on the merits in support of affirmance. The amicus brief provides extensive psychological research on key points, including how sexual orientation is related to the gender of partners to whom one is attracted - meaning that prohibiting same-sex marriage discriminates on the basis of sexual orientation, rather than just imposing disparate burdens on gay people. The brief addresses how homosexuality is a normal expression of human sexuality and that sexual orientation is generally not chosen and is resistant to change. Also provided is current scientific research on the nature of same-sex relationships, the role of child-rearing and the stigma resulting from denying the label “marriage” to same-sex unions. For example, the brief cites psychological research showing that gay and lesbian parents are not any less fit or capable than heterosexual parents, and that their children are not less adjusted. Additionally, the brief challenges evidence submitted by other amici who argue against the empirical research that sexual orientation is irrelevant to parenting outcomes as unfounded.

US v. Windsor (US Supreme Court) - APA filed a brief in March in this lawsuit which is a challenge to the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), the section that defines the terms 'marriage' for all federal purposes, as "a legal union between one man and one woman as husband and wife" and 'spouse' as "a person of the opposite sex who is a husband or a wife." Section 3 prevents the federal government from recognizing the marriages of same-sex couples who are legally married in their own states and restricts the federal government from granting such couples any federal benefits it provides to opposite-sex married couples.   APA’s brief applied social science research to rebut some of the justifications offered for the prohibition in Section 3 of DOMA of any federal recognition of the marriages of same-sex couples. Those justifications, involving procreation, the welfare of children and the like, are closely similar to those offered in cases defending states’ refusal to allow same-sex couples to marry.  The brief also addressed how denying federal recognition to legally married same-sex couples stigmatizes them.

Griego v. Oliver (New Mexico Supreme Court) - At issue is whether the New Mexico Constitution compels the state to allow same-sex couples the freedom to marry.  APA filed an amicus brief in September in support of the plaintiffs. Similar to previous briefs filed by APA, the amicus brief provided extensive psychological research on key points, including how sexual orientation is related to the gender of partners to whom one is attracted — meaning that prohibiting same-sex marriage discriminates on the basis of sexual orientation, rather than just imposing disparate burdens on gay people. 

Sevcik v. Sandoval and Jackson v. Abercrombie (U.S. Court of Appeals for the Ninth Circuit) – These consolidated cases challenge whether the Equal Protection Clause, part of the 14th Amendment to the U.S. Constitution, does not prohibit the state from limiting marriage to people of the opposite sex.  These two cases, arising in Hawaii and Nevada, respectively, had similar outcomes in that the District Courts each found there was no constitutional right to marriage for couples of the same sex. In both cases, the courts applying rational basis review, ruled that the Equal Protection Clause of the 14th Amendment does not prohibit the state from limiting marriage to people of the opposite sex.   APA's brief, filed in October, relied on much of the scientific and professional literature sited in previous marriage briefs. 

Eyewitness Identification:  

State of Connecticut v. Troy Artis (Supreme Court of the State of Connecticut) - At issue is whether the appellate court majority properly determined that admission of the victim's in-court and out-of-court identifications following a suggestive police display of the defendant's photograph was a reversible due process violation.   APA’s brief, filed in October, provides the Court with an overview of the strong body of research showing the variables that affect accuracy of eyewitness identification, specifically addressing the point that suggestive circumstances that will affect eyewitness identification can occur without police action and that limiting due process protections to only those faulty eyewitness identification procedures that are caused by state actors is too narrow a band of protection.   In this case, the State's sweeping attacks on the Appellate Court's ruling (and on psychological research and researchers) are addressed in detail in the APA brief as lacking merit. APA's brief also notes that courts throughout the country have acknowledged that the relevant research is reliable and properly considered by the courts.

False Confessions:

People v. Thomas (State of New York Court of Appeals) - APA filed a brief in November which addresses the issue on appeal regarding whether the State of New York should allow expert testimony on the body of research addressing risk factors for false confessions.  As in prior APA briefs addressing false confessions, this brief states that the scientific research on false confessions provides a strong empirical foundation for the admission of expert testimony on the subject and that it should be admitted as evidence. Admission of such evidence can 1) dispel the common misperception that a person would not confess to a crime he did not commit, and 2) explain the psychological and personality factors that may have made Thomas suggestible to police interrogation. The brief further addresses how lawful policy interrogation processes and tactics can sometimes produce false confessions, that dispositional factors can produce false confessions, and that most jurors do not understand the connection between false confessions and these interrogation and dispositional factors. APA also states how allowing jurors to view an interrogation videotape is not an adequate substitute because such observations do not inform jurors about the fact of false confessions or the relevant risk factors. Finally, APA's brief explains how expert testimony about false confessions is particularly critical where there is a lack of corroborating evidence.

Application of Mental Disability to the Death Penalty:

Hall v. Florida (US Supreme Court) - APA’s brief filed in December addresses of whether a statutory definition of mental retardation that has a bright-line cutoff requiring an IQ score of 70 or below adequately captures the constitutional imperative that the “mentally retarded” not be executed. APA’s brief states that there is unanimous professional consensus that the diagnosis of intellectual disability requires comprehensive assessment and the application of clinical judgment. APA further states that comprehensive assessment requires concurrent analysis of intellectual and adaptive functioning. The existence of concurrent deficits in intellectual and adaptive functioning is central to the rationale of the Atkins decision, and a system for identifying defendants with intellectual disability that does not include analysis of adaptive functioning is based on a fundamental misunderstanding of a diagnostic criteria. The brief asserts that the use of a fixed IQ score cutoff to assess intellectual functioning violates the professional consensus and clinical norms of mental health professions. APA further notes that IQ test scores used to diagnose limitations in intellectual functioning are subject to a standard error of measurement and the interpretation of IQ test scores must take the test’s reliability into account. In conclusion, the brief argues that relying on an IQ score at any level presents a significant risk that individuals with intellectual disability may be executed in violation of the Eighth Amendment. Instead, the appropriate method of diagnosis in every case is a comprehensive assessment of the individual’s adaptive and general intellectual functioning in order to interpret the IQ score and arrive at an accurate diagnosis.


COLI Projects/Initiatives


Facilitating APA/ABA Relations

COLI continued to explore current psychological/legal issues that may be appropriate for future APA/ABA collaboration.  One major undertaking initiated in fall 2013 was the American Bar Association agreement to join with APA to plan and implement a National Continuing Education Conference, Confronting Family and Community Violence – The Intersection of Psychology and Law.  This Washington, DC conference, originally scheduled for October 2013, was rescheduled for May 1-3, 2014.  The three-day conference will include plenary and invited sessions addressing the broad range of issues related to the exposure of children, youth, and families to violence in and around the home, community, and society.  Some topical themes or tracks for the conference will include juvenile justice; child maltreatment and adolescent health and welfare; domestic violence; bullying or violence in schools, gangs or neighborhoods.  


This conference builds on recent national efforts to address the effects of violence on children, youth, and families, including the Attorney General’s Defending Childhood Initiative.  Attorney General Eric Holder will serve as keynote speaker.  The conference should have broad appeal to psychologists, lawyers, judges, legal scholars, and others interested in the role of the law and psychology in supporting healthy children, youth and family functioning in a safe society.  
Judicial Ambassadors Initiative -- This judicial outreach initiative provides forums for building more effective relationships between the psychological and judicial communities.  During 2013, COLI members made connections with judges and spread the word about the judicial ambassadors’ initiative.  We look forward to engagements as a result of those connections in 2014.   

Convention Programming

COLI, during the 2013 APA Convention in Honolulu, Hawaii, sponsored a continuing education program as follows:

Legal and Ethical Issues in Telepsychology and Interjurisdictional Practice -- The panelists included COLI Members, Teresa Hall, PhD, JD and Marc Pearce, PhD, JD.  They were joined by Ethics Committee members and APA/APAIT/NASPP representatives who served on the Telepsychology Guidelines Task Force.  This session addressed the various ways in which electronic and interjurisdictional practice may impact one’s practice, how states have addressed (or not yet addressed) the legal and licensure implications of new types of practice, and the major ethical implications associated with telepsychology.   

Strategies for Responding to a Subpoena

COLI continued revision of the document, Strategies for Private Practitioners Coping With Subpoenas or Compelled Testimony for Client Records or Test Data (Professional Psychology:  Research and Practice [2006] Vol. 37, No. 2, 215-222). This document, originally published in 1996, was prepared to respond to the growing number of inquiries that APA has and continues to receive from members seeking guidance in this regard.  

COLI also continued work, in conjunction with the APA Ethics Office and the APA Continuing Professional Education Program, to develop a CE video primer addressing the issue of how to respond to a subpoena.  As envisioned, this product will be applicable to all mental health professionals and marketed to practitioners as well as to universities for use in graduate programs.  The product, comprised of a series of vignettes, will be a live webcast and then available on-demand.  Provided that this first product proves to be a success, it could mark the beginning of a series of modules on various psychology/law topics.  


COLI Reviewed and Provided Comments on APA Statements, Guidelines, Proposed Policies, Reports, and Other Issues, as follows: 

  • APA Guidelines for the Undergraduate Psychology Major
  • Principles for the Recognition of Proficiencies in Professional Psychology
  • Quality Professional Development and Continuing Education Research
  • Resolution on HIV Testing and Counseling
  • Guidelines for Psychological Practice with Older Adults
  • Good Governance Exercise and Survey
  • Creation of an Official APA Definition of Early Career Psychologist
  • Making APA into a Data-Driven Organization
  • BEA Working Group Product on Strengthening the Common Core of the Introductory Psychology Course
  • Competencies for Psychological Practice in Primary Care
  • Guidelines for Competency-Based Clinical Supervision in Health Service Psychology Education and Training Programs
  • Health Service Psychology:  Preparing Competent Practitioners Report of the Task Force on Trafficking of Women and Girls
  • Resolution on Service Provision for Individuals with Cognitive Disabilities
  • Multidisciplinary Competencies in the Care of Older Adults at the Completion of the Entry-Level Health Professional Degree
  • APA Policy on Gun Violence Prediction and Prevention
  • Response to Internship Shortage
  • Independence of Psychologists
  • Clarifying Procedures to Fund Existing APA Guidelines Revisions
  • Provided Suggestions to Ellen Garrison, APA Senior Policy Director on violence-related issues in the Aftermath of Sandy Hook School Shooting
  • Provided Suggestions to President-Elect, Nadine Kaslow, to support her Presidential Initiatives