Encyclopedia of Psychology and Law

misconduct is unlikely to affect the jury if countered

by the defense attorney’s objections or corrected by

the judge’s instructions. The Supreme Court has indi-

cated that arguments with the potential to unduly

influence the jury should be clarified by a specific

judicial instruction. This instruction rebuts the infer-

ences or implications made by the prosecutor in the

closing argument. Similarly, defense attorneys stress

the need to form prompt, articulate objections to

improper statements to avoid any problems on appeal.

The underlying assumption of each of these legal

safeguards is their potential to minimize the effects of

the prosecutor’s improper argument on the jury.

In assessing the effect of prosecutorial misconduct,

the pertinent question is whether the misconduct

caused the trial proceedings to be fundamentally

unfair. The standard for reviewing a prosecutor’s

improper penalty-phase argument is whether the argu-

ment affected the defendant’s due process right or

whether the argument unduly influenced the jury’s

recommendation of death.

Judith Platania

See alsoDeath Penalty; Jury Deliberation; Sentencing

Decisions; Sentencing Diversion Programs; Victim Impact

Statements

Further Readings

Berger v. United States, 295 U.S. 78 (1934).

Brooks v. Kemp, 762 F.2d. 1383 (11th Cir. 1985).

Chapman v. California, 386 U.S. 18 (1967).

Darden v. Wainwright, 477 U.S. 168 (1986).

Gaskill, J. B. (1991). Prosecution misconduct in trial: The

improper attempt to influence the jury. California

Attorneys for Criminal Justice Forum, 18(5), 12–25.

Platania, J., & Moran, G. (1999). Due process and the death

penalty: The role of prosecutorial misconduct in closing

argument in capital trials. Law and Human Behavior,

23,471–486.

PROXYDECISIONMAKING

Proxy decision making (also known as substituted

judgment) refers to the use of the legal system to

replace one person’s judgment with that of another.

This process exists to protect individuals from

exploitation while allowing them to retain as much

decision-making latitude as possible. Society’s interests

are served by preventing persons with mental disabil-

ities from engaging in physically, financially, or other-

wise harmful conduct. Different categories of proxy

decision making include substitutions for prior judg-

ment (as previously expressed in wills and other

advance directives); present judgment (involving cur-

rent capacity to provide informed consent to treatment

or to refuse treatment); and future judgment (concern-

ing projected ability to conduct personal and financial

affairs).

In 1540, the Statute of Wills enabled English citi-

zens for the first time to bequeath “real property” such

as buildings and land. Within 2 years, this law was

amended to invalidate wills by persons who were not

“sane.” Modern legal challenges still seek to determine

whether the testator (a) understood what it means to

make a will, (b) was aware of the nature and extent of

his or her property, (c) could describe a rational plan

for distributing that property, and (d) could identify the

“natural objects of one’s bounty”—meaning the per-

sons one would normally expect to inherit the posses-

sions in question. If such challenges succeed or if it

can be proven that the will was substantially affected

by another person’s “undue influence,” then a probate

court will substitute its judgment for that of the

deceased. Psychologists testifying in such proceedings

may conduct a psychological autopsy,reflecting all

currently available information about the decedent’s

cognitive status, medical condition, and interpersonal

relationships during the period in question.

In recent years, the law has provided for a range of

advance directives that allows persons to preordain

specific aspects of their future care. These include liv-

ing wills (conveying the desire to forgo artificial

means of life-sustaining treatment) and health care

surrogacy(empowering another person to make gen-

eral health care decisions in the event of future inca-

pacity). If an advance directive is successfully

challenged on the grounds that it was not the product

of a rational decision, then the individual’s prior judg-

ment may be set aside.

Substitutions for present judgment may occur

when persons are unable or unwilling to provide

informed consent to health care services. Typically,

medical treatment cannot be delivered unless patients

assent to it without coercion, after being provided

with an explanation of potential risks and benefits, as

well as any available alternatives, in language that the

patient is capable of understanding. The Capacity to

Consent to Treatment Instrument and the MacArthur

Competence Assessment Tool for Treatment are

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