Th The Educati tional Neuropsych chological Evaluation: Th The - - PowerPoint PPT Presentation

Th The Educati tional Neuropsych chological Evaluation: Th The Be Best t Ideas s Your Juvenile Ju Judge e Has Has Never er Seen een

Hannah Seigel Proff, Juvenile Defense Attorney hannah@profflaw.com Jeni Stinson, Juvenile Defense Attorney & Consultant JStinsonLaw@gmail.com

• This presentation includes information that is helpful for

investigators, social workers, & attorneys.

• It takes a village to defend a child, and it is often social

workers who will notice a young person’s cognitive issues before an attorney does.

Q: What is the difference between a felony and a misdemeanor?

• Felonies are more serious: murder, serious injury.

Misdemeanors are less serious: theft, property. Prison vs. County Jail Prison vs. Probation Shorter sentences for misdemeanors Answers you might be looking for:

A: “The misdemeanors are upstairs [in the jail] and they wear blue clothes.”

WHA

HAT IS IS AN AN EDUC DUCATIONAL

NEU

EUROPSYCH CHOLOGICA CAL EVA VALUATION?

In-depth cognitive functioning evaluation that examines how your individual child’s brain thinks, processes, understands, remembers and functions.

WHA

HAT IS IS AN AN

EDUC

DUCATIONAL

NEU

EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

General Cognitive Ability IQ Verbal Comprehension Index (VCI) Perceptual Reasoning Index (PRI)

Most General Psychological Evaluations Stop Here!

WHA

HAT IS IS AN AN

EDUC

DUCATIONAL

NEU

EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

General Cognitive Ability IQ Verbal Comprehension Index (VCI) Perceptual Reasoning Index (PRI) You can add age equivalencies to showcase this data!

Verbal T-Score Percentile Age Equivalent Vocabulary 20 <1 < 6 years, 2 months Similarities 20 <1 < 6 years, 2 months Performance/Nonverbal T-Score Percentile Age Equivalent Block Design 30 2 8 years, 10 months Matrix Reasoning 21 <1 7 years, 2 months Index* Standard Score Percentile 90% Conf. Interval Verbal 55 <1 52-62 Performance/Nonverbal 63 1 60-69 Full Scale – 4 subtests 56 <1 53-60

Wechsler Abbreviated Scale of Intelligence, (WASI) Subtests – Mean score = 50; T-Scores 40-60 (16-84th percentile) represent the broad average range. Composites – Mean score = 100; Standard Scores 85-115 (16-84th percentiles) represent the broad average range.

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

General Cognitive Ability

• IQ
• Verbal Comprehension Index (VCI)
• Perceptual Reasoning Index (PRI)
• Working Memory Index (WMI)
• Processing Speed Index (PSI)

Adaptive Functioning = “Street Smarts”

Adaptive Behavior Assessment System (ABAS-3)

Conceptual Communication, academic, and self- direction skills Social Social and leisure skills Practical Self-care, community use, health and safety skills

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

Academic Achievement

• Woodcock Johnson Tests of Achievement (WJ-IV)
• Reading
• Writing
• Mathematics
• Data on specific learning disabilities
• Grade equivalencies

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

Oral Language and Verbal Memory

• Clinical Evaluation of Language Fundamentals (CELF-5)
• Formulated sentences
• Recalling sentences
• Semantic relationships
• Understanding spoken paragraphs
• Wide Range Assessment of Memory and Learning

(WRAML-2)

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

Oral Language and Verbal Memory

• Auditory processing deficits
• How well does your client actually

understand what you, or anyone, says?

• You can find out!

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

• Executive Functioning
• Remember: the pre-frontal cortex controls executive

functioning, and is the last part of the brain to fully develop

• This means you can actually test your individual kid’s

executive functioning ability instead of relying only on the general science of adolescent brain development

WHA

HAT IS IS AN AN EDUC DUCATIONAL NEU EUROPSYCH CHOLOGICA CAL

EVA

VALUATION?

• Executive Functioning
• Rey Complex Figure Test and Recognition Trial (RCFT)
• D-KEFS Trail Marking Test
• Tests ability to hold 2 concepts in your mind

simultaneously

• This ability is essential to making sound decisions in

complex situations, like trial or during a crime

HOW

OW DO DO YO YOU KN KNOW IF IF YO YOUR YO YOUTH NE NEEDS AN AN EDU EDUCA CATIONAL EDU EDUCA CATIONAL NE NEUROPSYCH?

?

COLLECT ALL RECORDS (SOCIAL WORKERS & INVESTIGATORS) INTERVIEW FAMILY MEMBERS—ASK ABOUT DEVELOPMENTAL MILESTONES CAREFULLY REVIEW ALL RECORDS ASK YOUR CLIENT TO EXPLAIN THINGS BACK TO YOU DURING MEETINGS

MAK

AKE THE THE LA LAW SP SPECI CIFI FIC TO TO YO YOUR KI KID’S IN INDIV IVID IDUAL BR BRAIN!

Graham v. Florida, 130 S.Ct. 2011 (2010)

• 1. Lack of maturity and underdeveloped sense of responsibility

leading to recklessness, impulsivity, and heedless risk-taking.

• 2. Children are more vulnerable to negative influences and
• utside pressures including from their family and peers; they

have limited control over their environment, and lack ability to extricate themselves from horrific, crime-producing settings.

• 3. A child’s character is not as well-founded as an adult’s; his traits

are “less fixed” and his actions less likely to be “evidence of irretrievable depravity.”

MAK

AKE THE THE LA LAW SP SPECI CIFI FIC TO TO YO YOUR KI KID’S IN INDIV IVID IDUAL BR BRAIN!

Graham v. Florida, 130 S.Ct. 2011 (2010)

• The developmental “features that distinguish juveniles from

adults also put them at a significant disadvantage in criminal justice proceedings.”

• Kids may mistrust adults
• Limited understanding of the proceedings
• Less likely than adults to work effectively with lawyers

MAK

AKE THE THE LA LAW SP SPECI CIFI FIC TO TO YO YOUR YOUTH OUTH’S IN INDIV IVID IDUAL BR BRAIN.

Roper v. Simmons, 543 U.S. 551 (2005) Graham v. Florida, 130 S.Ct. 2011 (2010) Miller v. Alabama, 132 S.Ct. 2455 (2015) Montgomery v. Louisiana, 136 S.Ct. 718 (2016) All four cases recognize and cite scientific evidence that juvenile offenders are distinct from adults, and must be treated differently than adults. Research regarding adolescent brain development and psychology is now well- integrated into constitutional law.

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

ANYTHING RELATED TO “THE REASONABLE JUVENILE” (J.D.B.); DIRECT FILE/TRANSFER CASES; COMPETENCY; DIMISHED CAPACITY AND MENTAL HEALTH DEFENSES; COLLATERAL ATTACKS OF JUVENILE ADJUDICATIONS; ACCESSING SPECIAL EDUCATION SERVICES; LITIGATING PROBATION VIOLATIONS;

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Anything related to “the reasonable juvenile” J.D.B. v. North Carolina, 131 S.Ct. 2394, 2403 (2011)

• A child’s age should be included in the objective custody analysis;

juveniles “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.” (citing Bellotti v. Baird, 443 U.S. 622, 635 (1979)

People v. N.A.S., 329 P.3d 285, 290 (Colo. 2014)

• A juvenile’s age must be considered in the reasonableness analysis

under Miranda

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Anything related to “the reasonable juvenile.”

• Custodial issues
• Miranda issues
• Self defense
• Heat of passion

Subtest/Composite Standard Score Percentile Age Equiv. Grade Equiv. Reading Letter-Word Identification 82 12 9-8 Word Attack 91 27 10-1 Written Language Spelling 79 8 9-6 Writing Samples 76 5 8-2 Mathematics Applied Problems 73 4 8-6 Calculation 50 <0.1 7-4 Math Facts Fluency 62 1 8-0

Woodcock-Johnson IV Normative Update Tests of Achievement (WJ-IV), Form A Mean = 100; Standard Deviation =15

Scaled Score Percentile Age Equiv. Grade Equiv. Rate 8 25 11-0 5.2 Accuracy 5 5 7-6 2.2 Fluency 6 9 8-9 3.4 Comprehension 3 1 6-9 1.2

.

Gray Oral Reading Test, Fifth Edition (GORT-5), Form A Mean=10; Scaled Scores from 7-13 (16-84th percentiles) represent the broad average range.

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Self Defense Jury Instruction Based on the “Reasonable Juvenile”

• The determination of whether the Juvenile acted in self-defense must take

into account both the reasonable belief as well as the actual belief of the Juvenile.

• In determining whether the Juvenile acted reasonably, you are instructed

that a reasonable person is defined as a reasonable person in the Juvenile’s situation and under those circumstances existing at the time of the offense. The determination of whether the Juvenile acted reasonably therefore includes factors such as any appearances the Juvenile perceived, the amount of force exerted, the means by which the force was applied, and the strength and age of the victims compared with the strength and age of the Juvenile.

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Reverse Transfer Hearings

C.R.S. 19-2-517

• (IV) The age of the juvenile and the maturity of the juvenile as

determined by considerations of the juvenile's home, environment, emotional attitude, and pattern of living;

• (VI) The current and past mental health status of the juvenile as

evidenced by relevant mental health or psychological assessments or screenings that are made available to both the district attorney and defense counsel;

• (VII) The likelihood of the juvenile's rehabilitation by use of the

sentencing options available in the juvenile courts and district courts;

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Transfer Hearings

C.R.S. 19-2-518(4)(b)

• (IV) The maturity of the juvenile as determined by considerations of

the juvenile's home, environment, emotional attitude, and pattern of living;

• (VI) The likelihood of rehabilitation of the juvenile by use of facilities

available to the juvenile court;

HOW

OW CA CAN YO YOU US USE AN AN EDU EDUCA CATIONAL NE NEUROPSYCHOLOGI GICAL AL EV EVALUATION?

Competency

• What is your child’s cognitive age?
• What is your child’s ability to hold more than one concept in her head

at the same time?

• Capacity to make legal decisions
• Concrete thinking—what are specific examples of concepts your

kiddo does not understand?

• Figure out the “impairment” that prevents competency and give the

evaluator your documentation before the examination is done

HOW CAN YOU USE AN EDUCATIONAL

NEUROPSYCHOLOGICAL EVALUATION?

Dimished capacity and mental health defenses

• Ability to form intent
• Complicity capacity—kids travel in numbers

HOW CAN YOU USE AN EDUCATIONAL

NEUROPSYCHOLOGICAL EVALUATION?

Collateral attacks of juvenile adjudications

• Predicate adjudication for:
• Direct file and transfer cases
• POWPO
• Aggravation in death penalty cases
• If cognitive testing shows a defense that should have been

used in a prior adjudication, you must collaterally attack!

• Current incompetency likely means incompetency at the

time of the prior adjudication(s)

HOW CAN YOU USE AN EDUCATIONAL

NEUROPSYCHOLOGICAL EVALUATION?

Accessing special education services

• School can use many reasons to deny special education

testing or services

• Attendance problems
• Age
• Behavioral issues
• Get the data to show that your kid meets criteria for learning

disability or cognitive impairment

• Can be very helpful in any serious case, or direct file/transfer
• Give the ammunition to a special education advocate

HOW CAN YOU USE AN EDUCATIONAL

NEUROPSYCHOLOGICAL EVALUATION?

Fighting probation violations

• Link your client’s cognitive limitations to the supports

provided by probation

• Look at probation’s initial assessment to see whether they

note cognitive or mental health issues as an area of need

• If not, then probation failed to meet your client’s needs
• If so, then what accommodations did they make to ensure

your client could understand and comply?

WORKING WITH YOUR NEUROPSYCHOLOGICAL

EVALUATOR

Discuss the testing that you want before the evaluation

01

Make sure your evaluator will work with draft reports

02

Ask for a sample evaluation before hiring

03

Provide collateral information

• Records
• Social History report—

forensic social worker

• Interview reports

04

Find out which tests can be interpreted for age and grade equivalency and ask your evaluator to include a table or appendix with this information

05

Ask for specific examples of areas your kid struggles with

• E.g. Concrete thinking

06

WORKING WITH YOUR NEUROPSYCHOLOGICAL

EVALUATOR

• Ask for specific recommendations that can help your kid in
• ther areas of the case
• Education accommodations
• Probation accommodations
• Treatment recommendations
• Further testing recommendations
• Other diagnoses
• Psychological or emotional testing
• Competency evaluation

QUESTIONS?