For the Defense - Volume 2, Issue 2 - 2017 - 23

seeks data that will be used to develop a clinical
opinion regarding all or some of the Miller factors.
Not all experts retained by the defense will
write a report for the defense. Consistent with
the ethics of the expert's profession, the expert
conducts the evaluation knowing that data relied
upon in forming the clinical opinion are subject
to rules of discovery and could be shared with the
court and prosecutor. Often this is why the defense
counsel chooses not to have the retained evaluator write a report. Imagine the following scenario,
consistent with the ethics of the profession. The
expert takes detailed and accurate notes. While
interviewing the defendant, the expert discovers
something not favorable to the attorney's client.
The expert cannot forget or delete this information. In this case, the defense counsel might not
want the evaluator to write a report and the
evaluating expert becomes a consultant for the
defense. Neither the court nor prosecutor has
access to a consultant's work.
At the defense's discretion, the expert may
write a report. The expert's report and testimony
can be tendered to the court as evidence. The
report documents the process used to develop the
clinical opinion and memorializes that opinion. In
general, the expert evaluator in these cases will
have three main objectives: (a) build a case history
of the defendant as a youth, including personality,
weaknesses and strengths; (b) develop a psychological picture of the defendant's recent and
current psychological status; and (c) translate both
types of information regarding their relevance to
the four Miller factors.
As the first two objectives indicate, evidence
in Miller cases is likely to require information
from two distinct time periods: evidence about
the individual at the time of the offense (during
adolescence), and the individual's present status
as it relates to progress toward rehabilitation or
prospects in the future. One implication of this is
that the ideal expert must be specialized in child
development to build a picture of the defendant
as an adolescent, yet must also be qualified to
perform evaluations of the adult defendant. Not
all experts are qualified for both child and adult
evaluations.
A second implication is that such cases will
demand a great breadth of records for review.
The expert will want to review records related to

(a) the defendant's mental health, educational,
vocational and criminal records that predate and
concur historically with the offense, (b) records
pertaining to the other people in the defendant's
household(s) over the course of the defendant's
life prior to the offense, (c) records related to the
offense including police records and trial transcripts, and (d) the defendant's prison record.42 In
our experience, obtaining these records is taxing
for the legal team. The attorney should anticipate
that many of the records may no longer exist. If
that is the case, the defense should provide the
clinician with documentation from the source that
the records no longer exist. The defense should do
this in anticipation of the claim that the clinician
was selective in which records were reviewed and
relied upon in forming their opinion.
The expert will want to spend a significant
period of time interviewing the defendant and
potentially administering psychological tests.
Interviews typically will focus on the defendant's
childhood and adolescence, and the defendant's
current psychological status. The first two Miller
factors direct the expert specifically to inquire as
to the defendant's recollections of childhood and
adolescence, including such things as education,

FIGHT WITH COURAGE AND COMPASSION
FOR NON-CITIZEN DEFENDANTS

Contact Crimmigration attorney
Wana Saadzoi, Esq.

Vol. 2, Issue 2 | For The Defense

http://www.saadzoi.com

Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 2 - 2017