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

Tina Maschi, PhD, LCSW, ACSWFordham University

Graduate School of Social Service

Christine M. Heer, Esq.MSW, LCSW, DVS, CMFSWLaw and Alternative Dispute Resolution

PresentersTina Maschi Christine Heer

ObjectivesThis 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, andHow to apply this understanding to case examples.

Presentation OverviewForensic Social Work and the Legal System

HistoryPractice FrameworkPractice Strategies

The Legal System: An Overview of the Civil and Criminal Court Process Ethical IssuesUnderstanding the Law

Civil Law Criminal Law

Summary and Conclusion Questions and Comments

Forensic Social Work and the Legal System:

Conceptual Overview

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)

Forensic Social Work HistoryInterplay of Punitive and Compassionate Responses

1800’sBeginnings of Correctional ReformNational Conference of Charities and Corrections formed 1879

1900’sEstablishment of Juvenile Courts and Justice SystemUniversal Declaration of Human Rights (1948)Get Tough on Crime Era Policies and Laws

2000’sJuvenile Justice ReformCompassionate Release Laws for Older Adults

Conceptual Model: Forensic Social Work in the Environment

The Legal Systemand Courts

Community and Service System Diagram

IndividualINDIVIDUAL FOCUS

Oppression 101-1

Four levels of oppression1. Cultural Oppression-Cultural Beliefs2. Structural Oppression-Institutional3. Interpersonal-Between Others4. Internalized Oppression-Internalization

(Mullaly, 2010)

Oppression 101-2

Six Underhanded Methods of Oppression1. Exploitation2. Marginalization3. Powerlessness4. Violence5. Cultural Dominance or Imperialism6. CriminalizationBased on Young (1990)

Common Populations and Issues

Children and Families: child custody, child maltreatment, juvenile arrest and custodyAdults: divorce, civil disputes, criminal offendingOlder Adults: elder abuse, criminal offending and Imprisonment

Common Practice Contexts

CourtsChild and family agenciesEducationHospitalsMental health agenciesSubstance abuse agenciesJuvenile and Adults CorrectionsFaith-Based Institutions

Forensic Social Work Knowledge and Skills

Possible Roles and Activities

Counselor: psychosocial counseling, mediation, group counseling, etc.Report Writer: court reportCase manager or liasion: linkages to servicesResearcher or Evaluator: research & evaluationAdvocate: case or legislative level advocacy Expert Witness: court testimony

(Maschi et al., 2009)

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).

Common Collaborators: Formal and Informal

Doctors PsychiatristsNursesLegal Professionals (e.g., Lawyers, Judges)Law EnforcementCorrectional OfficersReligious ProfessionalsFamily and Peers of Clients ServedLinks to Interdisciplinary Collaboration Principles: Links for resources:

FAMILY VIOLENCE: http://justicestudies.sjsu.edu/research/institute-for-collaborative-response/DIVORCES; http://collaborativedivorceinstitute.com/CJ-MH COLLABORATION: http://www.youtube.com/watch?v=8VLeWdKgOtU

The Legal System:

Overview of the Civil and Criminal Court Process

CASE STUDIESCase study 1:

Non-biological mother files complaint for joint custody and parenting timeBiological mother-denies parenting rights

Case study 2:Elder abuse case

80 year old African American gay man35 year old white home health worker-physical abuse, financial extortion

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.

What is law?

RightsResponsibilitiesRemedies

Understanding the Law:Who, What, Where,

When, and Why

The Civil Court ProcessWho are the parties?

Plaintiff and Defendant.Can be several plaintiffs and several defendants

Cause of action or theory of the caseThe right to bring an action in the courtFacts of the case that support the theory

(Heer, 2009)

What Does the Civil Court Do?

Addresses civil wrongs between parties.Torts

IntentionalNegligence

Malpractice

Duty, Breach, Causation, Damages(Heer, 2009)

What: Others Causes of Action in Civil Matters

Civil Rights

Contracts

Statutory and Equity Family, Probate, Property, Injunctions and Restraints

(Heer, 2009)

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)

How: Civil procedure

Complaint: Notice Answer and/or counterclaim: Right to be heardDiscovery

Forensic Expert has a significant role here.Trial

Trier of FactJudge or Jury? (Heer, 2009)

Standard of Proof

Preponderance of evidenceMost civil actions

Clear and Convincing evidence:Termination of parental rightsProbateRight to die casesGuardianships

Remedies

Damages: Types include:Actual or CompensatoryDiscretionary (Pain and suffering)Punitive

Specific performance: Requiring the Defendant to do something

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.

When?

Statute of limitations: Time frame for filing a complaint after the act or event

State specificDifferent for different causes of action

E.g.. Personal injury: 1 year in some states -10 years in one state

Criminal Law

States and Federal Government establish laws that regulate conduct.Conduct, in violation of criminal law, can result in:

SupervisionIncarcerationFinancial obligations

Fines, restitution, Costs(Heer, 2009)

Who are the actors in Criminal law?

Law enforcementDefendant: The person accused of committing the prohibited actProsecutor/District Attorney/State’s Attorney: Represents the government on behalf of the jurisdiction/the people versus a criminal defendant (Heer, 2009)

Who:

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

(Heer, 2009)

Criminal Procedure

Due Process: 14th Amendment of the United States Constitution

Notice and Opportunity to be heardLaw Enforcement:

Enforce all lawsEmergency ResponseInvestigationArrest: Probable Cause (Heer, 2009)

What: Elements of a crime

The Act: Affirmative Act, orAn Omission

The State of Mind: KnowinglyPurposefullyIntentionallyRecklessly (Heer, 2009)

How: Criminal Procedure

ArrestFirst AppearanceProbable cause hearingGrand JuryArraignment: PleasDiscoveryPre trial procedures/ Disposition (Heer, 2009)

Criminal Procedure

Bench or Jury TrialJury Selection: Voir Dire

Trial: Innocent until Proven GuiltyBurden of proof on the prosecutionRules of CourtRules of Evidence

(Heer, 2009)

Criminal Process

WitnessesFact witnessCorroborating WitnessExpert Witness

Constitutional Rights of the Accused4th, 5th, 6th, 14th

Victim’s Bill of Rights(Heer, 2009)

Jurisdiction in Criminal Proceedings: Where

Federal criminal law violation: Federal court

State criminal law violation: State CourtWhere the crime occurred.

(Heer, 2009)

Standard of proof

Beyond a Reasonable Doubt

Unanimous verdict

(Heer, 2009)

Penalties in Criminal Court

Capitol crimes: Death

Incarceration: FederalStateLocal

(Heer, 2009)

Penalties

Supervision:Probation

Restitution: repay victim for costs and damages caused by the crimeFines: StatutoryCourt Costs: Cost of prosecution

(Heer, 2009)

Ethics-Decision-Making Model

1. Identify the ethical/legal dilemma2. Locate the ethical concerns and laws3. Brainstorm solutions and seek

consultation4. Choose an action5. Evaluate the action

Ethics and the Law1.01: Commitment to clients

Commitments to the broader society

1.03: Informed ConsentForensic social work compared to other social work services

1.04: CompetenceExpertise

1.05: Cultural diversityUnderstanding of diversity and bias issues in the justice system

(Heer, 2009)

Ethics-1

1.06: Conflict of InterestCannot have dual roles

1.07: ConfidentialityExceptions and lack of confidentiality in forensic social workAlso See 1.07(j) specifically

1.14: Clients who lack decision making capacityCompetency, Insanity issues

(Heer, 2009)

Ethics-2

2.04: Interdisciplinary CollaborationRole awareness and separation

4.01: Competence

6.04(d) Social and political actionExpert v. Advocate

(Heer, 2009)

Ethical Decision-Making Models-1

Awareness of ethical and legal obligationsUnderstanding of to whom a duty is owed

ClientColleaguesPractice SettingsThe Profession Broader society

(Heer, 2009)

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)

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)

Summary and Conclusion

The Future of Forensic Interdisciplinary Collaboration: A Social Ecology Model of Health and Well-Being

Ecological Systems‘Global ‘’Holistic Systems’Interdisciplinary View 

Power Dynamics‐CollectiveOppression,  Conflict,  Social Change

© Maschi & Morrissey (2011)

Human Rights, Social Justice, Critical‐Conflict Theories-Power  Differential View, Justice 

PERSPECTIVES

Evidence‐Base

Life Course ‘Longitudinal ‘View -Bio-psychosocial Theories

SOCIAL STRUCTURES

Historical TimePersonal, Collective, Political/Policy, Paradigms

Life Course AgencyHuman Development, Values, Self Efficacy, Empowerment, Relational Autonomy and Communication, Social‐Cultural Contexts

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

Public Health‘Whole Population’ View-Prevention & Intervention

Values and

Ethics

Policy & PracticeProcess & Outcomes

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 SkillsPsychosocial Assessment and Intervention SkillsCommunication and Engagement Skills: Individual and GroupCare CoordinationAdvocacy (Maschi et al., 2009)

Comments and Questions

National Organization 30th Anniversary Conference

Advancing Forensic Practice:

Promoting Innovation Worldwide

April 14-16

at the Renaissance Hotel, Seattle, Washington, USA

Contact Information

Tina Maschi, PhD, LCSW ACSW

President, National Organization of Forensic Social Work

Assistant ProfessorFordham University

Graduate School of Social Service113 West 60th Street New York, NY

Tel: (201) 218-5064Email: tmaschi@fordham.edu

Website: www.fordham.edu/btep

Christine M. Heer, Esq.MSW, LCSW, DVS, CMFSW

Law and Alternative Dispute Resolution1 West Cliff Street, 2nd Floor

Somerville, NJ 08876

Tel: 908-450-7421Email: cheeresqr@optonline.nett