For the Defense - Volume 2, Issue 2 - 2017 - 27

underlying personality trait. Some defendants may
have lengthy disciplinary records and this does not
necessarily mean they do not have the potential
for rehabilitation. Instead, it could reflect unmet
mental health needs or be indicative of something else that was going on in the defendant's
life. However, without discussing the disciplinary
records with the defendant and considering other
services that the defendant did or did not receive
while in prison, it is unlikely that the clinician will
be able to shed light on this issue for the court.
In summary, experts can play an important
role in the approximately five hundred Miller/
Montgomery cases pending in Pennsylvania's
courts. Experts retained by the defense can serve
as educators or evaluators. In the latter role, the
expert will review records related to the defendant, the defendant's home life before the offense,
and to the offense itself, as well as prison records.
Additionally, the expert may want to administer
psychological tests to the defendant. The expert
will want to spend a significant period of time
interviewing the defendant and others who knew
the defendant before, and since, the conviction.
At times, because of what the evaluating expert
has learned, the defense counsel will not want

the expert to write a report. At that point, the
evaluating expert becomes a consultant for the
defense. A consultant's work does not have to
be shared with the prosecution or the court. On
the other hand, in many cases, the defense will
request that the evaluating expert write a report.
Defense counsel may want to share the report with
the prosecutor to negotiate a plea or tender the
report to the court as evidence at the resentencing
hearing. When the report is tendered to the court,
the defense may also want the expert to testify at
the resentencing hearing. In doing so, the expert
could provide the court with information to consider when imposing an individualized sentence
consistent with Miller and Montgomery.

Notes
1.

2.
3.

Author's note: The authors acknowledge Marsha Levick, Esq.
Deputy Director and Chief Counsel of the Juvenile Law Center
for her consultation pertaining to the analysis of Pennsylvania's
cases related to Miller and Montgomery.
Miller v. Alabama, 567 U.S. 460 (2012).
Montgomery v. Louisiana, 577 U.S. ___; 136 S. Ct. 718 (2016).

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About the Authors
Antoinette Kavanaugh, PhD, ABPP, Board Certified in Forensic Psychology,
is the former Clinical Director of the Juvenile Justice Division - Cook County
Juvenile Court Clinic, served as a clinical professor at Northwestern University's
School of Law for ten years and is a Lecturer at the Feinberg School of Medicine,
Northwestern University, Chicago, IL. She has authored several peer-reviewed
articles and routinely trains lawyers and psychologists on issues related to adolescent development and obtaining and conducting forensic evaluations. In private
practice since 1999, she evaluates juveniles and adults for criminal state and
federal court cases as well as for civil cases. Correspondence may be addressed to:
Antoinette Kavanaugh, PhD, ABPP at antoinette@drkavanaugh.com.
Thomas Grisso, PhD, ABPP Thomas Grisso, PhD, a clinical and forensic psychologist, is Emeritus Professor in Psychiatry at the University of Massachusetts Medical
School. He has forty years of experience in research and consultation aiming
to improve juvenile justice law and policy, juvenile courts' decision making, and
mental health professionals' evaluations in juvenile cases. He is Executive Director
of the American Board of Forensic Psychology.

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Vol. 2,
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