Psychiatric Annals

A New Look at an Old Problem: Expert Witnesses and Criminal Responsibility

J Richard Ciccone, MD

Abstract

Although lhc insanity defense preceded the development of psychiatry, thai has never stopped critics of" the insanity defense from attacking psychiatrists for helping people get away with "murder." At a more sophisticated level, psychiatrists generally and forensic psychiatrists in particular are criticized tor the role that they play in assisting the legal system in determining issues of responsibility.

In 1843, the woodturner Daniel McNaughton shot and killed Sir Robert Peel's secretary, Edward Drummond, and gave his name to the McNaughton Rule. The arguments presented at McNaughton's trial bear a remarkable resemblance to today's arguments about criminal responsibility and the insanity defense. The prosecutor. Follet t . argued that McNaughton was not "totally insane," and therefore was responsible for killing Drummond. Follett pointed out that McNaughton was able to attend class, buy guns, travel, dress, and talk with others. The defense attorney, Cockburn, rejected a standard of "total insanity" which required the defendant to be a raving maniac or have the reasoning of a 2-year-old. Recalled that a distortion of the traditional English meaning of the term "total insanity." Cockburn pointed out that Matthew Hale, writing about total insanity in the 17th Century, was referring to anyone who was found to be functionally at a level below the average 14-yearold - far from an infant or a raving madman.

The outcry following McNaughton's not guilty by reason of insanity (NGRI) verdict led the House of Lords to assemble the 1 5 ludges of the Queen's Bench to answer five hypothetical questions. The answers to (wo questions became known as the McNaughton Rule. Letters to the editor and editorials in newspapers throughout Great Britain spoke of McNaughton's "getting away with murder," "living in clover," and called for elimination of the insanity defense. Others wrote that the insanity defense was an important part of legal tradition and that it was not fair to punish someone who could not form the intent necessary to be found culpable. This same debate followed the verdicts in the Hinckley and Dan White trials. Once again, it was suggested that the insanity defense be abolished or that psychiatric testimony be eliminated.

What is the proper role of the psychiatric expert in the courtroom, if any? What can psychiatric knowledge contribute to the understanding of criminal responsibility? How can psychiatry assist the legal system in carrying out its social role? Can psychiatrists ethically be involved?

A CASE APPROACH

Some have suggested that the psychiatrist in the courtroom does nothing but bring discredit and dishonor to psychiatry. The expert whose opinion can be purchased, the over-eager psychiatrist who docs a forensic examination for the prosecution before the suspect has access to an attorney, or the psychiatrist who is willing to diminish or embellish clinical data to help bolster a preconceived notion can all be found in the real world. But the attacks have been more far reaching, criticizing competent and ethical psychiatrists for even entering the courtroom and questioning the relevance and usefulness of psychiatric expertise to the work of the court.

A significant problem in the consideration of these questions is the framework that is used in evaluating the proper role of the psychiatric expert. The perennial arguments on the role of the expert witness and psychiatry's involvement in the insanity defense are based on dualistic thinking (mind/body, free will/determinism, fact/value), and the use of deductive rather than inductive reasoning. Another way to look at the psychiatric expert and the interaction of psychiatry and law is provided by an inlerdiscipline. Such an interdiscipline of psychiatry, law, and ethics would use a common vocabulary, a common methodology, and a common…

Although lhc insanity defense preceded the development of psychiatry, thai has never stopped critics of" the insanity defense from attacking psychiatrists for helping people get away with "murder." At a more sophisticated level, psychiatrists generally and forensic psychiatrists in particular are criticized tor the role that they play in assisting the legal system in determining issues of responsibility.

In 1843, the woodturner Daniel McNaughton shot and killed Sir Robert Peel's secretary, Edward Drummond, and gave his name to the McNaughton Rule. The arguments presented at McNaughton's trial bear a remarkable resemblance to today's arguments about criminal responsibility and the insanity defense. The prosecutor. Follet t . argued that McNaughton was not "totally insane," and therefore was responsible for killing Drummond. Follett pointed out that McNaughton was able to attend class, buy guns, travel, dress, and talk with others. The defense attorney, Cockburn, rejected a standard of "total insanity" which required the defendant to be a raving maniac or have the reasoning of a 2-year-old. Recalled that a distortion of the traditional English meaning of the term "total insanity." Cockburn pointed out that Matthew Hale, writing about total insanity in the 17th Century, was referring to anyone who was found to be functionally at a level below the average 14-yearold - far from an infant or a raving madman.

The outcry following McNaughton's not guilty by reason of insanity (NGRI) verdict led the House of Lords to assemble the 1 5 ludges of the Queen's Bench to answer five hypothetical questions. The answers to (wo questions became known as the McNaughton Rule. Letters to the editor and editorials in newspapers throughout Great Britain spoke of McNaughton's "getting away with murder," "living in clover," and called for elimination of the insanity defense. Others wrote that the insanity defense was an important part of legal tradition and that it was not fair to punish someone who could not form the intent necessary to be found culpable. This same debate followed the verdicts in the Hinckley and Dan White trials. Once again, it was suggested that the insanity defense be abolished or that psychiatric testimony be eliminated.

What is the proper role of the psychiatric expert in the courtroom, if any? What can psychiatric knowledge contribute to the understanding of criminal responsibility? How can psychiatry assist the legal system in carrying out its social role? Can psychiatrists ethically be involved?

A CASE APPROACH

Some have suggested that the psychiatrist in the courtroom does nothing but bring discredit and dishonor to psychiatry. The expert whose opinion can be purchased, the over-eager psychiatrist who docs a forensic examination for the prosecution before the suspect has access to an attorney, or the psychiatrist who is willing to diminish or embellish clinical data to help bolster a preconceived notion can all be found in the real world. But the attacks have been more far reaching, criticizing competent and ethical psychiatrists for even entering the courtroom and questioning the relevance and usefulness of psychiatric expertise to the work of the court.

A significant problem in the consideration of these questions is the framework that is used in evaluating the proper role of the psychiatric expert. The perennial arguments on the role of the expert witness and psychiatry's involvement in the insanity defense are based on dualistic thinking (mind/body, free will/determinism, fact/value), and the use of deductive rather than inductive reasoning. Another way to look at the psychiatric expert and the interaction of psychiatry and law is provided by an inlerdiscipline. Such an interdiscipline of psychiatry, law, and ethics would use a common vocabulary, a common methodology, and a common bioethical perspective.1

Most modern ethics are based on the deductive method. This method begins with universal principles that are said to be either rationally self-evident or intuitively discovered, and then creates a series of rules for the ethical behavior of psychiatrists. In contrast, the inductive approach is a method familiar to scientists and clinicians.2 A case specific method, applied clinical ethics, is used to arrive at a working hypothesis or a tentative principle. The hypothesis is then further refined in keeping with experience. This method has sometimes been slandered as a situation ethics that justifies doing whatever the physician "feels like" whenever he feels like it. However, case ethics is far from that unsophisticated idiosyncratic approach. In The City of God, Augustine, who no one can accuse of lacking general ethical or moral standards, writes that conclusions about ethical behavior require that the specific situation be taken into account.5 Hc discusses the importance of creating extended social bonds through the marriage of unrelated individuals. Augustine points out that the situation or the facts facing Adam and Eve's children required brother-sister marriages. While under different circumstances incest would be evil, the needs of human procreation required such pairing for Adam and Eve's children and made it acceptable.

THE PSYCHIATRIST EXPERT AND THE INSANITY DEFENSE

Criticisms of the expert witness role include the assertion that psychiatric experts are: unscientific, clowns in the courtroom, unable to present their views in the hostile environment of the courtroom, and bringing discredit to the profession by disagreeing among themselves. If we look carefully at these criticisms we find that they not only lack substance, but that it is essential that psychiatric expertise be available to the court.4 The criticism that psychiatry is unscientific is based on a subject/ object dualism, an unwarranted view of science as dealing with purely "objective data."

When the psychiatrist goes into the courtroom to answer the question of responsibility, he is accused of exceeding the limits of his scientific expertise and trying to answer a legal or moral question. In fact, the psychiatrist is providing information from a scientific perspective about the functioning of the human organism and whether or not the person had requisite capacities to be considered responsible. To fully examine and evaluate the defendant, the psychiatrist must have a goal or purpose in mind; he must be working to answer a question. The jury, on the other hand, has to hear the whole process. Should our legal system ask the psychiatrist to give an opinion to the ultimate question - on the basis of mental disease or mental defect, is the individual not responsible for his actions? A justification for answering the ultimate question is based on not only a full understanding of the scientific and clinical method but also general systems theory. This theory provides a coherent structure to biological complexity, the determinants of behavior, and responsibility. Therefore, there is no logical leap but only an inductive conclusion. Whether or not the jury wishes to accept the explanation and to find the individual not responsible will depend on social policy, political pressures, and other factors, including the ability of lhe attorneys io present their case.

The issue most associated in the public mind with forensic psychiatry is the insanity defense. When there is agreement about the defendant's insanity, the plea is accepted with little publicity. When there is disagreement between the prosecution and the defense on the validity of the insanity defense, a sensational trial may follow. The media coverage may distort the testimony and paint a picture of opposing psychiatrists totally disagreeing. While experts in any field may and do disagree, the disagreement between psychiatrists is often not as substantial as portrayed in the media. For example, the psychiatric experts may agree on diagnosis, but disagree on how the symptoms of the illness influenced the behavior for which the defendant is being tried.

Should our legal system have an insanity defense? Once again, the traditional ethical methodology for answering this question calls on dualism, and tries to draft workable compromises that arc practically sensible but theoretically untenable. Valuable time and energy goes into dealing with the paradoxes created by these dualisms, and diverts efforts to develop a more sophisticated exploration of the insanity defense. The alternate approach of genera! systems theory, by providinga unified understandingof human behavior, can help in the development of a biocthics consistent with the methods of the life sciences. The existence of (he insanity defense can (hen be seen as a requirement of the legal system, which must balance social control and individual liberty. The insanity defense allows for case specific reasoning to be applied io achieve that balance.

CONCLUSION

Those of us in psychiatry ignore at our peril the ethical assumptions that underlie many of the concrete criticisms of psychiatry and the role of the expert witness. The interdiscipline of'appfied clinical ethics has the advantage of integrating and synthesizing knowledge from a number of different disciplines, Il does so within a coherent, logical framework that is not only consistent with the scientific method, but also with the reality of the natural sciences. This approach is consistent with the world around us and the solutions that the legal system has arrived at for dealing with complex human behavior. The role of the psychiatric expert, when done properly, is essential to the achievement of justice and, when understood within the context of applied clinical ethics, an ethical undertaking. The insanity defense is the most visible part of the interaction of psychiatry and lhe law. It is a legal concept for which there is ample theoretical justification. The psychiatric expert, by providing not onfy lhe required opinions, bul also an explanation of how the information was gathered and the conclusions were reached, is central to the administration of justice. That psychiatric experts may disagree is reasonable and should bcexpeclcd. Neither science nor ethics requires certainty.

REFERENCES

1. Ciccone JR, Clements CD: Forensic psyciatry and applied clinical ethics: Theory and practice. Am J Psychiatry 1984; 141:395-399.

2. Clements CD. Ciccone JR: Applied clinal ethics or universal principles. Hosp Community Psychiatry 1985; 36121-123.

3. Saint Augustine, in Dods M (trans): The City of God. New York, D.D. Modern Library. 1950. pp 500-502.

4. Clements CD. Ciccone JR: Ethics and expert witness: The troubled role of psychiatrist in court. Bull Am Acad Psychiatry Law 1984; 12:127-136.

10.3928/0048-5713-19860701-09

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