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Retrospective Assessment of Mental States in Litigation

Predicting the Past

Edited by Robert I. Simon, M.D., and Daniel W. Shuman, J.D.

  • ISBN 978-1-58562-001-2
  • Item #62001
2003 Manfred S. Guttmacher Award Honorable Mention

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Why did the defendant do it?

Mental health professionals are asked to help courts answer this question. To serve justice, the law calls for evidence of the mental state at the time a crime is committed, of suicide intent in civil litigation, and of mental capacity in contract litigation. The law asks psychiatrists and psychologists to retrospectively determine mental states—a daunting task made even more difficult by the passage of time, the uncertain credibility of witnesses, the paucity of collateral sources of information, and often the death of the person in question.

This is the first book dedicated entirely to the retrospective assessment of mental states. This fascinating book explores the role of the psychiatrist and psychologist, as an expert witness in litigation, in rendering a retrospective judgment of an individual's mental state. Distinguished contributors apply their expertise in psychiatry, psychology, and the law to address the problems of retrospective assessment. With the goal of developing guidelines for more accurate retrospective assessment of mental states, they present topics such as

  • Guidelines for conducting retrospective assessments in children and adults
  • Guidelines for the retrospective assessment without benefit of direct examination
  • Assessments of suicide cases in both civil and criminal litigation
  • Psychological testing and interviewing techniques that may assist in retrospective assessment
  • Methods and analysis to help clinicians and attorneys critically evaluate the search for truth about the past.

This remarkable book will prove indispensable for helping clinicians, lawyers, and judges better understand the complex and difficult process of retrospective reconstruction of mental states.


  • Contributors
  • Acknowledgments
  • Introduction
  • Note on Terminology
  • Chapter 1. Retrospective Assessment of Mental States in Criminal and Civil Litigation: A Clinical Review
  • Chapter 2. Retrospective Assessment of Mental States and the Law
  • Chapter 3. What Can We Ever Know About the Past? A Philosophical Consideration of the Assessment of Retrospective Mental States
  • Chapter 4. Assessment of Mental State at the Time of the Criminal Offense: The Forensic Examination
  • Chapter 5. Retrospective Assessment of Malingering in Insanity Defense Cases
  • Chapter 6. Murder, Suicide, Accident, or Natural Death? Assessment of Suicide Risk Factors at the Time of Death
  • Chapter 7. Retrospective Assessment of Children's Mental States
  • Chapter 8. The Past as Prologue: Assessment of Future Violence in Individuals With a History of Past Violence
  • Chapter 9. Evaluating Mental States Without the Benefit of a Direct Examination: Basic Concepts and Ethical and Legal Implications
  • Chapter 10. Validating Retrospective Assessments: An Overview of Research Models
  • Chapter 11. What Can Psychologists Contribute to the Examination of Memory and Past Mental States?
  • Chapter 12. Psychiatric Diagnoses and the Retrospective Assessment of Mental States
  • Chapter 13. Special Methodologies in Memory Retrieval: Chemical, Hypnotic, and Imagery Procedures
  • Chapter 14. Competence and Mental Impairment
  • Chapter 15. Remembering the Future: Policy Implications for the Forensic Assessment of Past Mental States
  • Index

About the Authors

Robert I. Simon, M.D., is Clinical Professor of Psychiatry and Director of the Program in Psychiatry and Law at Georgetown University School of Medicine in Washington, D.C.

Daniel W. Shuman, J.D., is a Professor of Law at the Dedman School of Law, Southern Methodist University in Dallas, Texas.

Peering into the past through the psychiatric 'retrospectoscope' is an inescapable—though perilous—aspect of forensic assessment. This fascinating set of contributions offers many insights into the theoretical and practical dilemmas of the task. I doubt that anyone who reads it, no matter how experienced, will ever again evaluate past mental states in quite the same way.—Paul S. Appelbaum, M.D., A.F. Zeleznik Professor & Chair of Psychiatry, University of Massachusetts Medical School, Boston, Massachusetts

This is a very timely and important book for those working in the field of forensic mental health. . . The reader is taken by some of the most experienced experts in the field to assessment of memory, the philosophy of retrospective assessment and the question of malingering. . . There appears to be a battle of the experts between the clinical experience and those utilizing research and scientific data when assessing memory and memory retrieval methods. The jury is still out about the validity of these methods and one should not take sides at present, but retain an open mind and a balanced view as is presented in this fine work.—Robert L. Sadoff, M.D., Clinical Professor of Psychiatry; Director, Center for Studies in Social-Legal Psychiatry, The University of Pennsylvania School of Medicine, Pennsylvania

For those interested in a more in-depth look at forensic psychiatry or psychology, this book provides an excellent knowledge base. Yet, it is also an excellent reference for seasoned practitioners to refresh prior knowledge or gain a greater understanding of complex issues. Each chapter thoroughly addresses individual topics in a rational, well-thought out manner, and the areas discussed are both relevant and practical. In addition, the reference lists at the conclusion of each chapter are quite comprehensive.—Steven T. Herron, M.D., Doody's Health Science Book Review Journal, 8/1/2002

Retrospective Assessment of Mental States in Litigation is an excellent collection. It is both theoretical and practical and will be of great value to forensic examiners and lawyers. Each chapter is pitched at a level that will be helpful to the seasoned investigator and to the novice. Many chapters give concrete advice about how best to perform an evaluation of a particular type. The book deserves a wide audience.—Elyn R. Saks, J.D., and Stephen H. Behnke, J.D. Ph.D., The New England Journal of Medicine

Retrospective Assessment of Mental States in Litigation should prove useful to the psychiatrist serving as expert witness. The chapters are well referenced. Parts of the book might be of interest to any psychiatrist, whereas other chapters are quite specialized. I found the discussion of research on memory and memory retrieval particularly interesting.—Beatrice Kovasznay, M.D., M.P.H.,, Psychiatric Services, 8/1/2002

Editors Simon and Shuman do an excellent job of explaining the complex, multifaceted issues surrounding retrospective psychological assessments. . . . A vital resource for any forensics expert who testifies in court to understand lines of questioning by attorneys, as well as for psychological forensics experts who must perform retrospective psychological analyses.—Choice: Current Reviews for Academic Libraries, 8/1/2002

With a goal of developing guidelines for more reliable evaluations of past mental states, this book is indispensable. It will enable clinicians, lawyers, and judges to better understand the complex and difficult process of retrospective reconstruction of mental states.—William M. Regan, M.D., Journal of Clinical Psychiatry, 8/1/2002

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