Law Commons^™

Clients Want Results, Lawyers Need Emotional Intelligence, Christine C. Kelton

Cleveland State Law Review

Thinking requires emotions and emotions enhance thinking. This Article suggests that the emotionally intelligent lawyer is more likely to serve the needs of clients and the legal community than the lawyer who has less understanding of, and control over, emotions. Part II introduces two “emotionally unintelligent” lawyers, Amanda and Rick, and considers how their emotional “unintelligence” affects their new client, psychologist, Dr. Ray Randolph. Part III provides some background on the relevant research on emotional intelligence, including the history of intelligence, from general intelligence, to social intelligence, to multiple intelligences, and to emotional intelligence. Part IV defines and explores the …

The Adam Walsh Child Protection And Safety Act: Legal And Psychological Aspects Of The New Civil Commitment Law For Federal Civil Commitment Law For Federal Sex Offenders , John Fabian

Cleveland State Law Review

The Adam Walsh Act (AWA) became law on July 27, 2006, and is the most expansive and punitive sex offender law ever initiated by the federal government. One aspect of the statute, and the topic of this article, is the civil commitment of federal sex offenders. The AWA civil commitment law has its roots in prior U.S. Supreme Court cases including Kansas v. Hendricks and Kansas v. Crane. While the federal commitment statute is similar to traditional state commitment laws, the AWA does not provide for a finding of "likely" to commit sex offenses. Rather, the statute defines a "sexually …

Life, Death, And Iq: It's Much More Than Just A Score: Understanding And Utilizing Forensic Psychological And Neuropsychological Evaluations In Atkins Intellectual Disability/Mental Retardation Cases, John Matthew Fabian, William W. Thompson, Jeffrey B. Lazarus

Cleveland State Law Review

This article highlights best practices for assessing MR and ID in capital cases with an emphasis on Atkins trial preparation and potential problems the authors have noted through experience. These best practices in Atkins hearings concern issues for the lawyers, forensic psychologists, and neuropsychologists, which include:

1. Practice effects and IQ testing

2. Consistency of IQ scores over time

3. Flynn Effect

4. Malingering versus cognitive suboptimal effort

5. Lack of records indicating pre-age 18 diagnosis of MR/ID

6. Retrospective assessment of adaptive behaviors

7. Death row trends of increasing IQ over the years while incarcerated

8. Maladaptive behaviors versus …

The Andrea Yates Case: Insanity On Trial, Phillip J. Resnick

Cleveland State Law Review

On June 20, 2001, Andrea Yates drowned each of her five children in her bathtub. The nation struggled to understand how a loving mother could systematically kill her children in apparent cold blood. No crime evokes more intense feelings than a mother killing her own children. There was extraordinary media coverage of her trial in Houston, Texas in 2002. Her defense attorneys, George Parnham and Wendell Odom entered a defense of not guilty by reason of insanity (NGRI) to multiple counts of first degree murder with death penalty specifications. The 2002 trial jury verdict of guilty was overturned on appeal. …

The Strict Application Of The Restatement, Ohio Law And The Rules Of Civil Procedure: Estates Of Morgan V. Fairfield Family Counseling Center, Geoffrey M. Wardle, Jeffrey L. Mallon

Cleveland State Law Review

Considered by some in the mental health profession as the imposition of an onerous duty, the Ohio Supreme Court's decision in Estates of Morgan v. Fairfield Family Counseling Center represents an extension of the recognized legal duty imposed upon mental health practitioners who treat inpatients to those who treat outpatients. This created a uniform standard. The article begins in Part II by describing the story of a psychiatric patient, Matt Morgan. Part III then discusses the duty to control in the outpatient setting by going through traditional tort analysis, stare decisis, strict statutory application, and civil procedure. Part IV concludes …

Psychotherapist-Patient Privilege: A Rational Approach To Defining Psychotherapist, The 1997 John M. Manos Writing Competition On Evidence, Kathleen M. Maynard

Cleveland State Law Review

In the recently decided case of Jaffee v. Redmond, the United States Supreme Court acknowledged the existence of a psychotherapist-patient privilege under Federal Rule of Evidence 501 for the first time. This Article will make recommendations to lower federal courts that must construe the meaning of "psychotherapist." Part II will provide an overview of federal psychotherapist-patient privilege law prior to Jaffee. Part III will discuss the Court's decision to expand the definition of "psychotherapist" based upon the increased demand for therapy among lower income Americans. Part IV will make three arguments explaining why lower federal courts are free to extend …

Ford V. Wainwright, Statutory Changes And A New Test For Sanity: You Can't Execute Me, I'M Crazy, Steven J. Huff

Cleveland State Law Review

In Ford v. Wainwright, the Supreme Court addressed the issue of whether the Eighth Amendment prohibits the execution of an insane inmate. In answering this query, the Court created a constitutional right not to be executed while incompetent. However, the Ford decision is not only important for its creation of a "new" constitutional right, it also has the potential of nullifying several state statutes in regards to the due process requirements of hearings addressing the issue of insanity at the time of execution. The Ford decision also requires that a new test of sanity be created the test of whether …

Psychotherapy And Confidentiality, Ralph Slovenko

Cleveland State Law Review

Does the psychiatrist talk too much? Does the modern practice of psychiatry threaten confidentiality? Whatever disagreement may exist regarding the methods used by a therapist in the course of psycho-therapy, there is a near unanimity of opinion among therapists that nothing about a patient should be divulged to third parties. Allegedly, the patient's full participation, essential to psychotherapy, cannot be obtained without an assurance of absolute confidentiality.

Behavior Modification: Winners In The Game Of Life, Richard L. Aynes

Cleveland State Law Review

It is because the officials who administer the penal institutions are firmly committed to "behavior control" as a method of penological re-form that it is important to consider this "new approach" and all of its ramifications. It is to that end that this note will consider the extent and intensity of behavior control programs; the legal ramifications of such programs; and prospects for the future.

O'Connor V. Donaldson: The Death Of The Quid Pro Quo Argument For A Right To Treatment, Thomas P. Bliss

Cleveland State Law Review

On June 26, 1975, the Supreme Court was confronted with the controversial issue of whether there is a constitutionally guaranteed right to treatment for nondangerous persons who have been involuntarily and civilly committed to mental institutions. The Court avoided this long advocated issue and created the potential for future litigation by holding that a state cannot constitutionally confine a nondangerous individual solely for custodial care if such person can live safely in the outside world, without a finding of more than mere mental illness. This comment will discuss the decision in terms of the most volatile and frequently urged constitutional …

Psychologist As Expert Witness In Psychiatric Questions, Elliot R. Levine

Cleveland State Law Review

When the seeking of truth and the dispensing of justice require Wan evaluation of a litigant's mental functioning, the courts have traditionally looked to medically trained psychiatrists to serve as expert witnesses. In his private practice the psychiatrist frequently uses the consultative services of a clinical psychologist because psychological tests are more quantitative, less subjective, and more sensitive to the nuances of personality deviation than are the traditional psychiatric evaluative techniques. The psychologist can offer to the court, as well as the medical profession can, the opportunity for the utilization of the most scientific means and methods of appraising personality. …

Psychiatrist In Workmen's Compensation Field, Donald W. Loria

Cleveland State Law Review

At one time, if a physician could find no objective evidence of disability, an employee usually lost his workmen's compensation case. If the x-ray and the electroencephalogram were negative, if no muscle spasm were present, if the diminished sensation to pinprick followed no anatomical pattern-if the doctors could find nothing in the examination to substantiate the employee's complaints of pain-the decision invariably found the employee was malingering. Compensation was denied. Toward the middle of this century, psychiatry began to offer some explanations.

Compulsory Community Care For The Mentally Ill, Beatrice K. Bleicher

Cleveland State Law Review

At the present time, the benefits of community care are limited to voluntary patients, but they should be extended to involuntary patients as well. This paper discusses the need for compulsory community care and the steps taken to meet this need in a few states and in Britain. Finally, it proposes legislation which could cope with the problems of providing community care for the civilly committed.

Judicial Intervention As A Psychiatric Therapy Tool, Eleanor A. Blackley

Cleveland State Law Review

Commitment to a mental institution by itself does not, in all states, suspend civil rights. The court psychiatric unit is an early outpost of a preventive, coordinative venture which gives, at long last, practical humane expression to protection of and consideration for the civil rights of the mentally ill adult involuntary patient whose condition obstructs his capacity to demand such safeguards himself. Persons suffering from mental disorders are frequently too disabled to claim their civil rights themselves.

The Terror Neurosis, David I. Sindell

Cleveland State Law Review

In 1934, Strauss and Savitzky wrote a paper' in which they elaborated a particular syndrome known as a "terror neuro- sis," and stated that it was frequently found in such natural disasters as earthquakes, or in sea or military disasters, and mining catastrophes. Physical injuries in these cases, they said, may be slight or absent. For this reason, Strauss and Savitzky objected to the use of the term "traumatic neurosis" on the ground that the neurosis had no physical cause as such.

Damages For Emotional Distress In Ohio, James G. Young

Cleveland State Law Review

A review of Ohio cases reveals that Ohio law declares there cannot be recovery for mental distress unless it is accompanied by contemporaneous physical injury (i.e., contact), or unless the act was wilful, wanton or intentional. No Ohio cases were found where recovery for purely mental suffering, caused negligently, in and of itself was permitted.

Statutory Regulation Of Hypnosis, James T. Brennan

Cleveland State Law Review

Hypnotism and state hypnotists caused quite a stir in the first quarter of the Twentieth Century. Several of the existing statutes on hypnotism were passed at that time. Then, for about a quarter of a century, hypnotism was legislatively forgotten. Recently, pressure groups in the form of hypnotic, psychological, psychiatric and medical societies have been lobbying for legislation prohibiting hypnotism by laymen. As the hypnotist vote isn't very large, the activities of these pressure groups have been ignored for the most part. Statutes on hypnotism generally seek either to regulate stage hypnotism, the hypnosis of minors, or medical use of …

Law And Childhood Psychological Experience, C. G. Schoenfeld

Cleveland State Law Review

In an effort to help lawyers identify (and possibly change) that which in the law may reflect unduly the influence of early childhood, this paper will detail certain psychoanalytic discoveries concerning the first few years of childhood and will try to suggest wherein traces of these early years may have played a part in helping to mold the law.

Book Review, Daniel W. Feldman

Cleveland State Law Review

Reviewing Thomas S. Szasz, M.D., Law, Liberty, and Psychiatry, The McMillan Company, 1963

The Senile Testator: Medicolegal Aspects Of Competency, Robert Gene Smith, Laurence M. Hager

Cleveland State Law Review

The law has failed to recognize recent advances in geriatric psychiatry. Moreover, where medical language has been used, the terminology is either outdated or misapplied. What follows is an attempt to describe the nature and policy of the legal standard for testamentary competency, to set forth the current medical approach to senility and mental disease, and to suggest practical ways for the lawyer to use geriatric psychiatry in behalf of the senile testator.

Psychological Assessment Of Brain Damage, Bill J. Barkley

Cleveland State Law Review

We need more emphasis upon courses in Forensic Psychology in our law schools as well as in our graduate departments of psychology. The average clinical psychologist shies away from involving himself in cases that might eventually lead to testifying. The psychologist is not trained to answer with a "Yes" or a "No" and therefore is not accustomed to this procedure in the court room. In my estimation it is time that the clinical psychologist is helped to grow up legally, by having a better understanding of forensics, and it is time the legal profession is helped to grow up by …

Book Review, Irwin N. Perr

Cleveland State Law Review

Reviewing Richard W. Nice, Criminal Psychology, Philosophical Library, 1962

Drug Induced Statements, Gilbert Geis, Ernest R. Kamm

Cleveland State Law Review

No serious attempt appears to have been made to check the opinions of scientific authorities in regard to drug-induced statements, beyond a cursory survey in 1941, and the courts have gone their way without much information, often, as has been charged in other areas involving forensic psychiatry, substituting the claims of the more articulate and aggressive members of the profession for the consensus of knowledgeable opinion within the entire group. This paper, therefore, is an attempt to learn from a sample of psychiatrists the present state of professional belief about the legal value and reliability of barbiturate drugs in forensic …

Suicide Responsibility Of Hospital And Psychiatrist, Irwin N. Perr

Cleveland State Law Review

The problem of suicide is a prominent public health problem in this country. Physicians and hospitals have an obvious concern, as do the law courts, where actions for wrongful death and negligence may involve suicide as a result of a tortious act. This paper will restrict comment to the principles and application of present law as to the responsibility of the psychiatric hospital and the psychiatrist and a discussion of some of the applicable psychiatric factors.

Hospital Refusal To Release Mental Patient, Thomas S. Szasz

Cleveland State Law Review

This paper was intended as a contribution to the study of psychiatry, and especially institutional psychiatry, as a form of social control. More specifically, I have sought to present further evidence in support of the thesis that the relationship between the involuntarily hospitalized mental patient and his psychiatrist (s) is commonly antagonistic rather than cooperative in nature. The conception of a "mental illness," as essentially similar to a bodily disease, serves to obscure the many exceedingly significant socio-economic, legal and ethical aspects of forced mental hospitalization.The patient's lawsuit for release, and the psychiatric superintendent's appeal that he be permitted to …

An Appraisal Of Competency, Henry Davidson

Cleveland State Law Review

Competence is the ability to handle business affairs with ordinary prudence. It is a legal not a medical formula, and in a sense, it must be defined negatively. Every one is assumed to be competent. If you think some one is incompetent, you must prove it. He does not have to prove that he is competent. Therefore, the formula is a criterion of incompetency not competency. To declare a person incompetent, these findings must coexist: 1. He has a mental disorder. 2. This causes bad judgment. 3. Because of the bad judgment, the patient either: (a) Squanders his money or …

Civil Liberties And The Mentally Ill, Thomas S. Szasz

Cleveland State Law Review

Here are two basic ways in which a person may assume the social role of "mental patient." First, it may be assumed voluntarily, meaning that the role is self-defined. Second, it may be foisted upon a person against his will. This means that a person may be defined as "mentally ill" by someone other than himself. This definition, then, if properly implemented, may become generally accepted or socially verified. I shall limit myself here to calling attention to certain ethical and legal aspects of the psychiatrist's involvement with the second class of "mentally ill" patients.

Irresistible Or Irresisted Impulse, Wladimir G. Eliasberg

Cleveland State Law Review

It is the purpose of this paper to show that the requirements made on psychiatry have not changed in the least since the application of the Durham Rule. It will be shown that now and in the future as before, the demonstration of the development and the dynamics of the mental processes is what the psychiatrist has to offer. Questions of guilt are not in his province. Now as before this latter remains the prerogative and obligation of the finders of fact, not of the experts.

Forensic Psychiatry In Switzerland, Anton Harder

Cleveland State Law Review

Forensic Psychiatry, like political, legal, esthetic, and oftentimes, religious practices, is part of the selfrealizationof a nation. In this way, different countries arrived at different and varying solutions to social problems. Although Switzerland is a small state (5.27 million people per 41,300 square kilometers) in the heart of Europe, she, nevertheless has succeeded in going her own way in Forensic Psychiatry.

Legal Medicine And Psychiatry In Turkey, Fahrettin Kerim Gokay

Cleveland State Law Review

The utilization of psychiatrists in the handling of legal matters in Turkey began with the reformation in 1908 when "The Legal Medicine Institute" and "The Legal Medicine Council" were founded. The Faculty of Medicine at the University of Istanbul created professorial chairs in psychiatry and legal medicine.