A GUIDE TO FORENSIC SOCIAL WORK AND ADVANCING JUSTICE AND FAIRNESS IN THE COURTS

Transcription

1 A GUIDE TO FORENSIC SOCIAL WORK AND ADVANCING JUSTICE AND FAIRNESS IN THE COURTS Tina Maschi, PhD, LCSW, ACSW Fordham University Graduate School of Social Service Christine M. Heer, Esq. MSW, LCSW, DVS, CMFSW Law and Alternative Dispute Resolution

2 Presenters Tina Maschi Christine Heer

3 Objectives This workshop was designed as a basic introduction for forensic social workers in the context of the courts Participants will gain a greater understanding of: Forensic social workers and forensic social work practice, The civil and criminal legal process, The important multifaceted role forensic social workers do and can play in providing clinical and policy practice expertise, advocacy, expert testimony, and care coordination, and How to apply this understanding to case examples.

4 Presentation Overview Forensic Social Work and the Legal System History Practice Framework Practice Strategies The Legal System: An Overview of the Civil and Criminal Court Process Ethical Issues Understanding the Law Civil Law Criminal Law Summary and Conclusion Questions and Comments

5 Forensic Social Work and the Legal System: Conceptual Overview

6 Forensic Social Work Definition National Organization of Forensic Social Work (1997) defined forensic social work as: Forensic social work is the application of social work to questions and issues relating to law and legal systems. This specialty of our profession goes far beyond clinics andpsychiatric hospitals for criminal defendants being evaluated and treated on issues of competency and responsibility. A broader definition includes social work practice which in any way is related to legal issues and litigation, both criminal and civil. Child custody issues, involving separation, divorce, neglect, termination of parental rights, the implications of child and spouse abuse, juvenile and adult justice services, corrections, and mandated treatment all fall under this definition. (para 1)

7 Forensic Social Work History Interplay of Punitive and Compassionate Responses 1800 s Beginnings of Correctional Reform National Conference of Charities and Corrections formed s Establishment of Juvenile Courts and Justice System Universal Declaration of Human Rights (1948) Get Tough on Crime Era Policies and Laws 2000 s Juvenile Justice Reform Compassionate Release Laws for Older Adults

8 Conceptual Model: Forensic Social Work in the Environment The Legal System and Courts

9 Community and Service System Diagram Individual INDIVIDU AL FOCUS

10 Oppression Four levels of oppression 1. Cultural Oppression-Cultural Beliefs 2. Structural Oppression-Institutional 3. Interpersonal-Between Others 4. Internalized Oppression-Internalization (Mullaly, 2010)

11 Oppression Six Underhanded Methods of Oppression 1. Exploitation 2. Marginalization 3. Powerlessness 4. Violence 5. Cultural Dominance or Imperialism 6. Criminalization Based on Young (1990)

12 Common Populations and Issues Children and Families: child custody, child maltreatment, juvenile arrest and custody Adults: divorce, civil disputes, criminal offending Older Adults: elder abuse, criminal offending and Imprisonment

13 Common Practice Contexts Courts Child and family agencies Education Hospitals Mental health agencies Substance abuse agencies Juvenile and Adults Corrections Faith-Based Institutions

14 Forensic Social Work Knowledge and Skills

15 Possible Roles and Activities Counselor: psychosocial counseling, mediation, group counseling, etc. Report Writer: court report Case manager or liasion: linkages to services Researcher or Evaluator: research & evaluation Advocate: case or legislative level advocacy Expert Witness: court testimony (Maschi et al., 2009)

16 Interdisciplinary Professional Contacts Forensic social workers often work with interdisciplinary teams. Interdisciplinary team practice consists of: a group of professionals from different disciplines; a common purpose; the integration of various professional perspectives in decision making; interdependence; coordination and interaction; communication; role division based on expertise (Abramson & Rosenthal, 1995).

17 Common Collaborators: Formal and Informal Doctors Psychiatrists Nurses Legal Professionals (e.g., Lawyers, Judges) Law Enforcement Correctional Officers Religious Professionals Family and Peers of Clients Served Links to Interdisciplinary Collaboration Principles: Links for resources: FAMILY VIOLENCE: DIVORCES; CJ-MH COLLABORATION:

18 The Legal System: Overview of the Civil and Criminal Court Process

19 CASE STUDIES Case study 1: Non-biological mother files complaint for joint custody and parenting time Biological mother-denies parenting rights Case study 2: Elder abuse case 80 year old African American gay man 35 year old white home health worker-physical abuse, financial extortion

20 The Legal Process United States Constitution: We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

21 What is law? Rights Responsibilities Remedies

22 Understanding the Law: Who, What, Where, When, and Why

23 The Civil Court Process Who are the parties? Plaintiff and Defendant. Can be several plaintiffs and several defendants Cause of action or theory of the case The right to bring an action in the court Facts of the case that support the theory (Heer, 2009)

24 What Does the Civil Court Do? Addresses civil wrongs between parties. Torts Intentional Negligence Malpractice Duty, Breach, Causation, Damages (Heer, 2009)

25 What: Others Causes of Action in Civil Matters Civil Rights Contracts Statutory and Equity Family, Probate, Property, Injunctions and Restraints (Heer, 2009)

26 Where: Civil Procedure Jurisdiction: What Court is authorized to hear the matter. Where the matter will be heard. State or Federal Court? Which state? Based on the subject matter. Venue: What County or District? (Heer, 2009)

27 How: Civil procedure Complaint: Notice Answer and/or counterclaim: Right to be heard Discovery Forensic Expert has a significant role here. Trial Trier of Fact Judge or Jury? (Heer, 2009)

28 Standard of Proof Preponderance of evidence Most civil actions Clear and Convincing evidence: Termination of parental rights Probate Right to die cases Guardianships

29 Remedies Damages: Types include: Actual or Compensatory Discretionary (Pain and suffering) Punitive Specific performance: Requiring the Defendant to do something

30 Remedies Injunctive relief: Restraining or ordering the defendant to cease doing something Declaratory judgment: The Court declares the rights or responsibilities or status of a party.

31 When? Statute of limitations: Time frame for filing a complaint after the act or event State specific Different for different causes of action E.g.. Personal injury: 1 year in some states -10 years in one state

32 Criminal Law States and Federal Government establish laws that regulate conduct. Conduct, in violation of criminal law, can result in: Supervision Incarceration Financial obligations Fines, restitution, Costs (Heer, 2009)

33 Who are the actors in Law enforcement Criminal law? Defendant: The person accused of committing the prohibited act Prosecutor/District Attorney/State s Attorney: Represents the government on behalf of the jurisdiction/the people versus a criminal defendant (Heer, 2009)

34 Who: The prosecutor prepares and presents the case against the defendant(s) The judge presides over the trial Jury: 12 persons who decide the guilt or innocence of a defendant. Witnesses, includes the victim (Heer, 2009)

35 Criminal Procedure Due Process: 14 th Amendment of the United States Constitution Notice and Opportunity to be heard Law Enforcement: Enforce all laws Emergency Response Investigation Arrest: Probable Cause (Heer, 2009)

36 What: Elements of a crime The Act: Affirmative Act, or An Omission The State of Mind: Knowingly Purposefully Intentionally Recklessly (Heer, 2009)

37 How: Criminal Procedure Arrest First Appearance Probable cause hearing Grand Jury Arraignment: Pleas Discovery Pre trial procedures/ Disposition (Heer, 2009)

38 Criminal Procedure Bench or Jury Trial Jury Selection: Voir Dire Trial: Innocent until Proven Guilty Burden of proof on the prosecution Rules of Court Rules of Evidence (Heer, 2009)

39 Criminal Process Witnesses Fact witness Corroborating Witness Expert Witness Constitutional Rights of the Accused 4 th, 5 th, 6 th, 14 th Victim s Bill of Rights (Heer, 2009)

40 Jurisdiction in Criminal Proceedings: Where Federal criminal law violation: Federal court State criminal law violation: State Court Where the crime occurred. (Heer, 2009)

41 Standard of proof Beyond a Reasonable Doubt Unanimous verdict (Heer, 2009)

42 Penalties in Criminal Court Capitol crimes: Death Incarceration: Federal State Local (Heer, 2009)

43 Penalties Supervision: Probation Restitution: repay victim for costs and damages caused by the crime Fines: Statutory Court Costs: Cost of prosecution (Heer, 2009)

44 Ethics-Decision-Making Model 1. Identify the ethical/legal dilemma 2. Locate the ethical concerns and laws 3. Brainstorm solutions and seek consultation 4. Choose an action 5. Evaluate the action

45 Ethics and the Law 1.01: Commitment to clients Commitments to the broader society 1.03: Informed Consent Forensic social work compared to other social work services 1.04: Competence Expertise 1.05: Cultural diversity Understanding of diversity and bias issues in the justice system (Heer, 2009)

46 Ethics : Conflict of Interest Cannot have dual roles 1.07: Confidentiality Exceptions and lack of confidentiality in forensic social work Also See 1.07(j) specifically 1.14: Clients who lack decision making capacity Competency, Insanity issues (Heer, 2009)

47 Ethics : Interdisciplinary Collaboration Role awareness and separation 4.01: Competence 6.04(d) Social and political action Expert v. Advocate (Heer, 2009)

48 Ethical Decision-Making Models-1 Awareness of ethical and legal obligations Understanding of to whom a duty is owed Client Colleagues Practice Settings The Profession Broader society (Heer, 2009)

49 Ethical Decision-Making Models-2 Nexus between the facts, the dilemma, and social work values and principles. Understanding of the dilemmas and conflicts and the source of the conflicts Understanding of the potential outcomes (Heer, 2009)

50 Ethical Decision Making Models-3 The role of consultation and the reasonably prudent professional Understanding of motivations and risks on the part of the social worker, the client and others Evaluation of decisions (Heer, 2009)

51 Summary and Conclusion

52 The Future of Forensic Interdisciplinary Collaboration: A Social Ecology Model of Health and Well-Being Power Dynamics Collective Oppression, Conflict, Social Change SOCIAL STRUCTURES PERSPECTIVES Life Course Agency Human Development, Values, Self Efficacy, Empowerment, Relational Autonomy and Communication, Social Cultural Contexts Historical Time Personal, Collective, Political/Policy, Paradigms Values and Ethics Practice/Stakeholder Contexts Care Sectors and Intersections, Family, Peers, Community, Economic, Education, Medical, Housing, Employment, Transportation, Social Services, Mental Health, Juvenile and Criminal Justice, Media Evidence Base Policy & Practice Process & Outcomes Human Rights, Social Justice, Critical Conflict Theories- Power Differential View, Justice Life Course Longitudinal View -Biopsychosocial Theories Ecological Systems Global Holistic Systems Interdisciplinary View Public Health Whole Population View- Prevention & Intervention Maschi & Morrissey (2011)

53 Maximizing Forensic Social Workers Role Using the Diverse Array of Knowledge and Skills that Social Worker s Bring to the Interdisciplinary Table These areas include: Human Rights, and Social Justice Knowledge and Skills Psychosocial Assessment and Intervention Skills Communication and Engagement Skills: Individual and Group Care Coordination Advocacy (Maschi et al., 2009)

54 Comments and Questions National Organization 30 th Anniversary Conference Advancing Forensic Practice: Promoting Innovation Worldwide April at the Renaissance Hotel, Seattle, Washington, USA

55 Contact Information Tina Maschi, PhD, LCSW ACSW President, National Organization of Forensic Social Work Assistant Professor Fordham University Graduate School of Social Service 113 West 60th Street New York, NY Tel: (201) Website: Christine M. Heer, Esq. MSW, LCSW, DVS, CMFSW Law and Alternative Dispute Resolution 1 West Cliff Street, 2nd Floor Somerville, NJ Tel: [email protected]