Cultural considerations in the criminal law: the sentencing process

In forensic psychiatry, there is increasing recognition of the importance of culture and ethnicity in the criminal justice process as the population becomes more culturally diverse. However, there has been little consideration of the role of cultural factors in the trial process for criminal defendants, particularly in the sentencing phase of trial. Using a capital murder case study, this article explores the role of cultural forensic psychiatric consultation, focusing on the sentencing phase of trial as the place where the full scope and power of a cultural evaluation can be brought most effectively to the attention of the court. Cultural psychiatric perspectives can enrich a core forensic evaluation and be maximally helpful to the court, by exploring family dynamics and psychological health influenced by cultural history, immigrant and refugee experiences, and sociocultural environment. Specific recommendations and cautions for effective cultural consultation in forensic psychiatry are discussed.     

Maßregel der Sicherungsverwahrung nach § 66 StGB

Preventive detention is imposed by court order if a dangerous criminal shows a disposition to relapse. The negative criminal prognosis should be given by a psychiatric expert based on considerations about the criminal's personality traits. Matters of preventive detention are important for forensic psychiatry, but so far have rarely been discussed. This article presents related problems and offers-under special consideration of problematic personality traits or personality disorders-practical guidelines for expert testimony. Our considerations should serve as a thought-provoking stimulus for further psychiatric discussions about this topic.     

Fitness to stand trial: Court dispositions

Mental health professionals are often called upon by the courts to provide expert opinion evidence to assist the court in dealing fairly with the accused person in the criminal justice system. Common law criteria for fitness to stand trial have evolved over 200 years but remain non‐standardized, varying between countries, while sharing certain core characteristics.The courts most often agree with clinical assessments. This study examines all 1109 pretrial fitness assessments performed at the Forensic Unit of the Calgary General Hospital during the period 1991–1997 and measures the agreement between court decisions and the psychiatric opinions (99.8%). It contrasts this with the performance of instruments designed to measure fitness. It also examines the characteristics of the psychiatric reports, which adopt a semi‐standardized format Suggestions are made about the relative appropriateness of psychiatric reports and fitness instruments being used as expert evidence.     

Commentary: compassion at the core of forensic ethics

In 1982, Dr. Alan Stone raised a central dilemma in ethics for forensic psychiatry that has prompted significant and important discussion of the concerns about twisting justice, prostituting the profession, and operating without adequate ethics guidelines in the course of our work. In presidential addresses to the membership of the American Academy of Psychiatry and the Law (AAPL), Dr. Paul Appelbaum and Dr. Ezra Griffith have attempted to deal with Stone's challenges, the former by providing a theory of forensic ethics, the latter by advocating cultural formulation and narrative as the methodology of our work. In his present contribution, Dr. Griffith advances the idea of narrative to involve compassion for the subject of the evaluation. In so doing, he brings us to a far more satisfactory resolution of the dilemma described by Dr. Stone. The obligation to show compassion deserves to be at the core of any valuable statement of forensic ethics. The role of compassion in justice, as discussed, for example, by Simone Weil, warrants further interdisciplinary study.     

The psychiatrist's dilemma: a conflict of roles in legal executions.

In the United States, a critical controversy is taking place in regard to psychiatrists' and other physicians' participation in legal executions. Under pressure from the criminal justice system and legislatures to expedite executions, some forensic psychiatrists have succeeded in loosening traditional prohibitions against such participation. Further, there has been a weakening of the prohibition against treatment designed to facilitate immediate execution of those condemned to death. The rationale offered for these departures from current psychiatric ethical codes is the novel notion that when a psychiatrist acts in the court or criminal justice situation, that individual is no longer a psychiatrist and is not bound by psychiatric ethics. Rather, the forensic psychiatrist, termed a 'forensicist', serves as an assistant in the 'administration of justice' or 'an agent of the State' and thus works in a different ethical framework from the ordinary psychiatrist. This justification has similarities to the rationale offered by physicians involved in human experiments and other criminal acts in Nazi Germany, as well as psychiatrists in the former Soviet Union who explained their involvement in psychiatric abuse as a result of being agents of the State and thus not responsible for carrying out orders. Clearly, this controversy could be eliminated by a campaign for the abolition of capital punishment, characterised by the American Psychiatric Association as 'anachronistic, brutalizing [and] ineffective'. Such a campaign should serve as a call for psychiatrists and other physicians to join in the struggle to uphold ethical and moral principles.     

Commentary: the problem of agreement on diagnoses in criminal cases

The authors present an important two-part study as they strive to provide an empirical analysis of psychiatric diagnoses in criminal case reports in Australia. In the first part, they compare the level of agreement or correlation of diagnoses between pairs of experts who prepared reports for either the prosecution or defense with other reports prepared for the same and opposing sides and by profession (i.e., psychiatrists and/or psychologists). In the second part, they compare the level of agreement or correlation between experts retained by either the prosecution or defense and treating practitioners. Psychiatric diagnoses are fundamental requirements that may affect the adjudication of criminal and civil cases. Both parts of the study focus on criminal cases and are very exciting in that they review not only the correlation of agreements in these areas but also address indirectly the concept of the so-called hired gun. The development of specialized expertise in the evaluation and assessment of defendants by designated opinion or expert witnesses has progressed over time. The nexus between psychiatry and the law (i.e., forensic psychiatry) has included the presentation of psychiatric diagnosis to the courts and the necessity for the expert or treating practitioner to address legal questions raised by the court. This study makes important steps in the direction of examining and analyzing the role of psychiatric diagnosis according to the responsibilities of the evaluator (i.e., as independent examiner or treating practitioner), as well as the possible influence of professional training and experience on differences in diagnoses between two evaluators. It is anticipated that there will be further work in these areas to address not only diagnoses but forensic recommendations and opinions.     

‘They're Not Really Doing “Normal” Psychiatry’: The Socio-Legal Shaping of Psychiatric Expertise in Insanity Trials

The use of psychiatric expertise in criminal trials has generally been construed as problematic despite the fact that there remains little in-depth research in this area. Qualitative research on other forensic experts has indicated the existing literature on psychiatric expert testimony may be simplifying the dynamics that occur in practice between psychiatry and law. This article draws on data generated from 31 qualitative interviews and medico-legal documentation to explore the socio-legal shaping of forensic psychiatrist's expertise during insanity trials in New Zealand. It describes how the hybrid features of the insanity defence shape forensic psychiatrists' practices in this context to the point that their performances as expert witnesses cannot be adequately described as doing ‘normal psychiatry’. Rather, adding to the existing body of social studies of forensic expertise, the article exemplifies how the forensic psychiatrists' practices are inextricably linked to the legal context in which they are operating. It concludes by demonstrating that the ‘art’ of forensic psychiatry involves managing the hybrid nature of the expertise they provide in cases of insanity.     

Vérité et mensonge : l'évaluation de la crédibilité en psychiatrie légale et en pratique judiciaire

The issue of whether the truth or lies are being told in police and court hearings is as long-standing as justice itself and has given rise to countless forensic controversies. The focus of alienist doctors, especially in affairs of sexual assault, was on pathologic lying, mythomania, moral insanity, false self- and hetero-accusations, and the sincerity of children's testimonies. During the first half of the twentieth century, authors such as the Italian Altavilla, the Spanish Mira y Lopez and the Frenchman Gorphe devoted entire textbooks to the psychology of criminal investigations and trials, the analysis of hearings before investigators, the discrepancies between psychological truth and judicial truth and the methods for discovering lying and confabulation. Recent authors like Vrij, St-Yves and Landry have established a three-stage classification of practical and experimental procedures for detecting lying: a) observing the non-verbal and paralinguistic behaviour of the declarant ; b) analysing discourse in the search for clues to assess the credibility of the testimony ; c) technically measuring the emotion-driven physiological clues that accompany lying (polygraphy, voice analysis, electroencephalography with evoked potentials). In the absence of concrete evidence and when the accusation rests solely on the word of the presumed victim, the judge's firm conviction or reasonable certainty is the only element allowing the suspect to be judged. In such circumstances, psychological and psychiatric examinations of the personality of the accused and the « victim's » credibility will likely play a preponderant role in the ruling of the courts. In the current state of judicial practice, the psychological or psychiatric expert should in no way give his or her opinion about the reality of the matter or take the place of the judge in deciding where the judicial truth lays.     

Older criminals: a descriptive study of psychiatrically examined offenders in Sweden

OBJECTIVE: We retrospectively examined psychiatric diagnoses of older offenders referred by court for psychiatric assessment in Sweden, and compared them with younger offenders. METHOD: In Sweden, structured court-ordered forensic psychiatric evaluations are undertaken by a forensic psychiatric team. Data on age, sex, citizenship, psychiatric diagnoses, offences, and legal insanity declarations were obtained for the years 1988-2000 (n = 7297). RESULTS: There were 210 forensic psychiatric evaluations in those aged 60 and over. 7% had a diagnosis of dementia, 32% psychotic illness, 8% depressive or anxiety disorder, 15% substance abuse or dependence, and 20% personality disorder. Older offenders were significantly less likely to be diagnosed with schizophrenia or a personality disorder, and more likely to have dementia or an affective psychosis compared to younger ones. Logistic regression analyses suggested that of the studied factors, the ones most typical of older offenders were a diagnosis of dementia and being charged with a sexual offence. CONCLUSION: There appear to be important differences in psychiatric morbidity between older offenders and younger ones who come into contact with forensic psychiatric services. This research may assist in the planning of forensic and therapeutic services for the increasing number of older adults passing through the criminal justice system.     

Psychiatric court reports in Iceland 1970-1982

This paper looks closely at psychiatric court reports in criminal cases in Iceland. Psychiatric court reports are in the great majority of cases requested by the State Criminal Investigation Police (SCIP) on behalf of the court in major criminal cases (e.g. homicide, sexual offences, arson, physical assault). Reports are very rarely requested by the defence. During the 13-year period 1970-1982 there were 97 requests for psychiatric reports by the police/court (i.e. an annual rate of about 7.5 reports). About two-thirds of the defendants were found to have some psychiatric abnormality, although only a minority (8%) were considered criminally insane at the time of the offence. Psychiatric reports were most often requested to assess criminal responsibility, and, to a much lesser extent, sentencing issues. Psychiatric experts almost never have to present their evidence in person in court, nor are they cross-examined on their evidence. This paper discusses some of the strengths and limitations of psychiatric evidence in Iceland, and the need for an organized forensic service.     

Forensic assessment of juvenile delinquents: prevalence of psychopathology and decision-making at court in the netherlands

Dutch juvenile criminal law, concerning minors between 12 and 18 years old, is marked by its pedagogical character. In cases of serious psychosocial problems or psychiatric disorders, the juvenile court may request a forensic examination in order to be able to impose a measure of restraint. This study was aimed at investigating to what extent the juvenile criminal law achieves the aim enhancing professional help in those cases for which such assistance is indicated.One hundred and eight juveniles who were brought before the court were assessed multidisciplinarily. Sixty-five per cent of the youngsters were qualified for 'definite caseness'. For less than half of them a forensic assessment was ordered by the court. In conclusion, young delinquents should be screened for psychiatric disorders more adequately as soon as they are taken into custody.     

Juvenile delinquency,adult criminality,and adult psychiatric treatment: An epidemiological study

This report explores some associations among juvenile delinquency, subsequent criminality, and subsequent psychiatric treatment. A sample of 255 males known to the juvenile court 25 years prior to the study is examined in terms of subsequent documented psychiatric treatment and/or criminal activity. Of the 255 former delinquents, 6% were known later to both criminal justice and psychiatric systems, 6% to psychiatric systems only, 28% to the criminal justice system only, and 60% to neither. Delinquents with later psychiatric histories were twice as likely to be known to the criminal justice system than were those without psychiatric histories. Those with adult psychiatric histories were also significantly younger at the time of their first delinquent offense and committed more juvenile offenses than the nonpsychiatric group. Only 2 of the 16 individuals later known to both systems were diagnosed sociopathic. The findings are discussed.     

The profile of a major affective disorder offender

The authors review the studies on the relationship between crime and mental disorder conducted in various settings and point out that the incidence of major mental illnesses in general and of major affective disorders in particular, among the criminal population is relatively small. They present the profile of a major affective disorder offender presenting at a forensic psychiatric department of a university-based psychiatric hospital in a major Canadian city. This profile is based on the demographic, psychiatric, psychological and legal data on a sample of 46 consecutive patients with a diagnosis of major affective disorder. Even though the majority of these offenders are charged with relatively minor crimes and property offenses, they are often referred by the courts for in-patient assessment as many show active symptoms at the time of initial appearance in court. The ways the criminal justice system deals with these offenders are discussed. The benefits and limitations of describing a profile of any group of offenders are also considered.     

Le cadre juridique régissant la responsabilité pénale de l’aliéné mental au Maroc

IntroductionThe lunatic is any person deemed unfit for societal life. Nowadays, insanity is defined as a mental illness. The psychiatric expertise constitutes a judicial procedure designed to determine the insanity with regards to the effects on penal responsibility.ObjectivesThe aim of this work was to highlight the different rules governing penal responsibility of the insane in Morocco. It also aims to emphasize the main function of the expert psychiatrist in determining the mental status of the offender at the time of the crime.MethodThis is a legal analysis of the effects of insanity on criminal liability. It is based on the examination of different rules governing the penal procedure, and the study of different judgments and case treatments either by the judge, the expert psychiatrist or by the institutions where the insane was placed.ResultsTo detail procedural rules of criminal responsibility of the insane in Morocco as well as the role of the psychiatric expertise.DiscussionThe fundamental question is to determine whether the penal responsibility of the offender in the case of insanity is assumed solely by the criminal court, or whether it is mandatory to obtain the opinion of the expert psychiatric. Although the psychiatric expertise is the cornerstone of the procedure, the criminal court has the potential power to judge the different elements of the criminal process, whereas the medical expertise represents only one.ConclusionThe determination of insanity is paramount due to the importance of the effects that it may have on the criminal responsibility of the offender. Even if the legislature cares to determine the conditions and effects of the insanity on criminal responsibility, the boundaries between the judicial and medical expert intervention remain unclear. Therefore, it is crucial to establish a detailed legal schedule to specify the boundaries and limits, considering that both judge and psychiatrist must collaborate to find the way to improvement.     

Contesting Mad versus Bad: The Evolution of Forensic Mental Health Services and Law at Toronto

We analyze relevant aspects in the history of forensic mental health services in the Toronto area, which offers a well-documented historical record for contextualizing current public debates and controversies. Spanning the late 18th century to the present, we trace the development of common and statute law, and service responses in the forensic and criminal justice systems, through the evolution of asylums to latter-day psychiatric facilities and services. Addressing themes of evolving interfaces between the practices of law and mental health care reveals that the balance, as enacted in law and interpreted by the courts, has generally favoured legal interpretations of mental illness, despite psychiatry's steadily-increasing claim to superior insights and evidence on what constitutes mental illness in juridical contexts. The experience of forensic psychiatry over this 200-year period points to relevant implications for continued refinement of legal, court and clinical provisions for this service, and directions for future research.     

Dissociative identity disorder: Medicolegal challenges

Persons with dissociative identity disorder (DID) often present in the criminal justice system rather than the mental health system and perplex experts in both professions. DID is a controversial diagnosis with important medicolegal implications. Defendants have claimed that they committed serious crimes, including rape or murder, while they were in a dissociated state. Asserting that their alter personality committed the bad act, defendants have pleaded not guilty by reason of insanity (NGRI). In such instances, forensic experts are asked to assess the defendant for DID and provide testimony in court. Debate continues over whether DID truly exists, whether expert testimony should be allowed into evidence, and whether it should exculpate defendants for their criminal acts. This article reviews historical and theoretical perspectives on DID, presents cases that illustrate the legal implications and controversies of raising an insanity defense based on multiple personalities, and examines the role of forensic experts asked to comment on DID with the goal of assisting clinicians in the medicolegal assessment of DID in relation to crimes.     

Le psychiatre expert judiciaire et les auteurs d’homicides

The forensic psychiatric expertise of homicide perpetrators is a standard practice in criminal justice matters. Its validity relies heavily on the knowledge, professional experience and methodology of forensic psychiatrist experts. In the present interview, Daniel Zagury, an important figure of forensic psychiatric expertise in France, shares his clinical practice. In addition, he describes his experience with homicide perpetrators, particularly with serial killers and Islamic terrorist attackers on French soil. Finally, he addresses the recurring and crucial controversy of criminal responsibility, or the lack of it, in perpetrators.     

Commentary: nuances of reverse-waiver evaluations of adolescents in adult criminal court

Several factors influence a judge's decision to transfer youthful defendants to juvenile court from adult court, including the forensic evaluator's ultimate opinion, the defendant's amenability to treatment, and public safety risk. In this commentary, we examine the constructs that evaluators must assess, as established by Kent v. United States (1966). We begin by outlining the legal history that led to the large population of youths currently in the adult criminal justice system nationwide and the negative consequences of their incarceration in adult settings. We consider the unique role of forensic psychologists and psychiatrists as experts in development, with special regard to their ability to assess and inform the court about amenability to treatment and emotional maturity. The determination of amenability to treatment is further explored through a review of the current literature examining the influence of diagnostic labeling on judicial decisions and the treatment response of adolescent offenders who have psychopathy features. We conclude with an update on the recent proposal for juvenile justice reform in the authors' state of New York.     

The psychiatrist as expert witness

This article discusses the two different types of legal situations involving participation by psychiatrists--clinical testimony and forensic expert testimony--and presents guidelines and ethical considerations for the psychiatrist participating in the criminal justice system.     

Treatment retention and outcome among cocaine-dependent patients with and without active criminal justice involvement

In this study, we examined differences between cocaine- and alcohol-dependent patients with and without active criminal justice involvement. Data were combined from two randomized controlled trials, in which 243 participants were randomly assigned to manual-guided behavioral therapies and medication (either disulfiram or placebo). Fifty-five (23%) participants of the combined sample had active criminal justice involvement, defined as being referred to treatment by a court official or a probation or parole officer. Regarding treatment outcome, there were no significant differences between participants with and without criminal justice involvement with regard to frequency of cocaine or other substance use during the three months of study treatment or the one-year follow-up. Although the criminal justice-referred group had significantly more new arrests during the one-year follow-up, when antisocial personality disorder was utilized as a covariate, there were no significant differences between criminal justice groups in number of arrests at the one-year follow-up. These data suggest that participants with active criminal justice involvement do not necessarily have poorer retention or substance use outcomes than do individuals who are self-referred or referred by other sources when treated in well-defined protocols.