Tele-Forensic Sexual Risk Evaluations​

In state and federal courts, defense attorneys regularly request psychosexual risk evaluations to use during pretrial negotiations. Typically, the evaluation is completed weeks before the trial date and does not need to contain incriminating statements in order for risk to be calculated. If the final report reveals low future risk, it can be disclosed to the prosecutor, who may come in with a more favorable plea. If an agreement cannot be reached, the healthy report can still be used as mitigation during the sentencing phase.

If the report reveals high future risk, the defense attorney does not disclose the report and can use it to persuade the client to reconsider the offer that is on the table. The report is attorney-work product until the defense attorney decides to release it. So, there is minimal risk for defense in pursuing a pretrial risk assessment.

In state and federal courts there is an important separation to keep in mind. A forensic psychologist to not allowed to evaluate the defendant and provide expert testimony.  It is considered a dual-role conflict.  BUT – in military courts these shared roles are specifically allowed for. So in a GCM a forensic psychologist for the defense typically postpones their risk assessment until after they have testified in the trial phase. This sequence is an effort to prevent government from discovering material during voir dire of the expert. But this is a tragic waste of an important bargaining device in pretrial negotiations.

The Solution:
In 2019 Maj. Stein and Dr. Younggren published a book for the American Psychological Association regarding forensic psychology services in military courts.  Here’s their recommendation on the dual-role dilemma.

“Consider the following example: A forensic psychologist was asked to consult with defense counsel in a criminal matter. The psychologist reviewed the case files and offered what the attorney considered to be helpful theories in defending her client. The lawyer then asked the psychologist to evaluate her client for mitigation purposes; the psychologist agreed to do so and concluded that the defendant was a psychopath. In the civilian world, the consulting psychologist would have been wise to refuse the additional assignment. This is because, if he or she were testifying about scientific and noncase specific matters, he or she might be required to disclose the results of the evaluation and, in doing so, could significantly damage the defense’s case. However, under the MRE (JSC, 2019) such disclosures are not required, and the testimony of the expert about the negative mitigation evaluation would remain privileged. Therefore, the consulting psychologist would be free to fill both these roles without fear of jeopardizing the accused’s case. However, the psychologist would have to be extremely careful to not inadvertently open the door to this evaluation during testimony because doing so could lead to its results being disclosed. Therefore, the forensic psychologist and the attorney would have to carefully craft direct testimony in order to avoid this possibility.”

Christopher Stein and Jeffery Younggren. Forensic Psychology in Military Courts. (2019).
American Psychological Association. Chapter 5. Kindle Edition.

This introduces a significant option for defense JAGs to consider. A risk assessment can be an important tool in plea negotiations and mitigation in sentencing and it does not open the door to being discovered during the trial phase.

And there is an additional development. The COVID pandemic brought about the American Psychological Association’s encouragement of forensic psychologists to conduct tele-assessments across secure video conferencing.  The ability to do tele-forensic evaluations was in place before. But the APA greatly expanded their use due to the quarantine.

These developments open exciting potential for military courts. For example, an ADC at Kunsan could have her client evaluated weeks before the trial date. The interview is conducted while the psychologist is state side. The ADC can then use the completed risk report for pretrial negotiations (or not). Let’s assume the ADC decides not to disclose the report. The forensic expert can still come out to consult with her team, provide expert testimony in the trial phase, and testify about mitigation in sentencing. The ADC simply needs to be careful during her direct so the expert isn’t forced to disclose the results of the evaluation. It’s attorney work product and did not help form the basis for expert testimony.

Could a tele-forensic risk assessment be beneficial to your client?
Click Resources at the top of this webpage. Then on CLE Seminars scroll down to a handout for trainings Dr. Simpson has provided for the State Bar of Arizona – Psychosexual Evaluations: What Every Attorney Should Know. Pages 15-17 discuss risk actuarials that are used for risk prediction (Dr. Simpson uses the Static 2002R). Also consider reviewing Online Sex Offense: What Every Attorney Should Know if your client’s allegations involve online offenses.

Click on this link – STATIC 2002R scoring sheet for attorneys. This is a scoring form that will give you a general idea of where your client lands regarding future risk. Defendants in GCMs tend to score low for future risk by virtue of the fact they are employed in the military, lack an extensive arrest history, limited-to-no drug use, etc. Dr. Simpson will often use additional measures called the STABLE 2007, the SVR-20, the CPORT or the Structured Assessment of PROtective Factors [(SAPROF)].

If you decide to go forward with a tele-forensic risk assessment . . .

  1. Send Dr. Simpson an email or give him a call to discuss the specifics of your case.
  2. You will need to talk with your convening authority about getting authorization. You can pursue a normal expert request, but expand the pre-trial hours to 15, which will cover the risk assessment. Notice you do not need to describe how the pretrial hours will be utilized. See the generic affidavits on this website that you can use in your request. You can either cut-and-paste them into your request or ask Dr. Simpson to write one for you to submit on his letterhead.
  3. We will need to have an MOA signed before the evaluation can begin.  This protects everything as attorney-work product.
  4. Your client will need to sign the general consent form and have it scanned to our office.
  5. Your client would then fill out two questionnaires Preparing for your interview and Sexual history questionnaire. It is important that you review the completed questionnaires before scanning these to Dr. Simpson.
  6. Psychological testing material will be mailed to your office.  We will need your physical mailing address.
  7. You or your paralegal will need to [proctor] (supervise) your client while s/he completes the tests. Then you would scan the completed questionnaires back to our office.
  8. Dr. Simpson will need to coordinate a video-interview with your client.  Simply provide our office with your client’s email and we can set up the appointment time through the Doxy.me secure conferencing program.
  9. Once the evaluation is complete, Dr. Simpson will arrange a time to talk with you about the results before a final report is written.