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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
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