The Rebirth of Forensic Psychiatry in Light of Recent Historical Trends in Criminal Responsibility

Harold J. Bursztajn, MD
Albert E. Scherr, JD
Archie Brodsky

Harold J. Bursztajn, MD, is Co-director of the Program in Psychiatry and the Law and Associate Clinical Professor, Department of Psychiatry, Harvard Medical School at the Massachusetts Mental Health Center in Boston, Massachusetts. Albert E. Scherr, JD, is Assistant Appellate Defender at the Franklin Pierce Law Center in Concord, New Hampshire. Archie Brodsky, BA, is Senior Research Associate of the Program in Psychiatry and the Law at Harvard Medical School at the Massachusetts Mental Health Center in Boston, Massachusetts

Submitted to Psychiatric Clinics of North America August 27, 1993; Revised November 12, 1993

The two psychiatrists portrayed in the award-winning movie Silence of the Lambs -- Dr. Hannibal Lector and his keeper, Dr. Chilton -- represent two of the more prevalent caricatures of the profession: the evil wizard and the pretentious buffoon. As commonly as such stereotypes are applied to physicians, they are even more commonly applied to psychiatrists. They are conjured up perhaps most intensely in relation to those psychiatrists who sail the treacherous shoreline where psychiatry and the law meet: forensic psychiatry. This shoreline might be considered an endangered area, having survived repeated tidal waves of public sentiment to have it declared off-limits. The latest such tidal wave arose in the early 1980s, particularly in the aftermath of the verdict of "not guilty by reason of insanity" in the trial of John Hinckley, who nearly succeeded in assassinating President Ronald Reagan.

Most politicians are lawyers. It is thus no surprise that lawyer/politicians often find it easier to attack psychiatrists than fellow attorneys, especially those who have become judges. As the distinguished jurist David Bazelon is said to have remarked, "The problem with forensic psychiatry in the courtroom is that the average attorney does not know how to consult the average forensic psychiatrist." Despite such barriers to open-minded consideration of forensic psychiatric testimony, the specialty of forensic psychiatry has continued to grow. Attorneys and judges who practice in the Bazelon tradition find the deep human understanding offered by psychiatrists indispensable to the administration of justice. We will explore what that understanding is, what it contributes to the workings of the legal system, and what its successful application in that arena can tell us about psychiatry as a form of scientific investigation.

For at the heart of the conundrum of forensic psychiatry is the tension between the legal system's -- and people's -- wish for simple answers, a wish the psychiatrist (like any other expert) must inevitably disappoint, and a more realistic appreciation of science as offering merely the deepest understanding possible under the circumstances. Once the naive belief in "exact" science is replaced by a more contextual notion of what scientific knowledge is, it becomes possible to appreciate the numerous ways in which forensic psychiatrists deploy this scientific and human understanding in both criminal and civil law.

The Legal Background: Criminal Responsibility and Mental-State Defenses

Forensic psychiatrists are employed extensively in civil as well as criminal proceedings, testifying (for example) as to emotional harms resulting from medical malpractice and other forms of negligence. However, the public's image of the forensic psychiatrist tends to be formed on the basis of a small number of sensational murder (or attempted murder) cases in which criminal responsibility is at issue. Indeed, the recent crisis of confidence in forensic psychiatry occurred after the Hinckley verdict, which itself followed in the wake of Dan White's successful claim of diminished capacity in the 1978 killing of San Francisco Mayor George Moscone and Supervisor Harvey Milk (the notorious "Twinkie defense").

The public outcry over Hinckley's having "gotten off" was accompanied by a soul-searching at the highest levels of the psychiatric profession. The distinguished professor of psychoanalysis and law, Alan Stone, published a series of thoughtful and disturbing essays questioning the scientific and ethical basis of psychiatrists' participation in legal proceedings. [98] At the same time, Stone identified forensic psychiatry as "one of the few growth stocks" in "a stagnant psychiatric economy" [97] -- a prediction that time has confirmed. How can we account for this anomaly?

In order to clarify how forensic psychiatrists interact with the legal system and what they contribute to achieving fair and just outcomes, we will begin with some background on the areas of law that generated the controversy: the insanity defense and diminished capacity. This analysis of criminal responsibility is included for its heuristic value in outlining the forensic psychiatrist's role, which will then be discussed more broadly. At the core of this role, in both civil and criminal law, is the assessment of competence. Increasingly, as the field keeps pace with post-modern scientific understanding, competence assessment is becoming highly focused and differentiated, identifying impairments of specific capacities and functions that result from mental illness and traumatic experience.

The Insanity Defense and Diminished Capacity

Mental illness in a criminal defendant at the time of an alleged offense can give rise to three types of mental-state defenses: insanity and two distinct variants of diminished capacity. Each of these defenses addresses the issue of criminal responsibility differently, and each has met with varying degrees of acceptance in the criminal justice system.

For all its controversy, or perhaps because of it, the insanity defense is widely considered the classical realm of forensic psychiatric input. It excuses a criminal defendant for his conduct because of his mental disease or defect. This is true whichever of the following three standards is used:

  1. M'Naghten rule: Excuses a defendant who, by virtue of a defect of reason or disease of the mind, does not know the nature and quality of the act, or, if he does, does not know that the act is wrong. [57]
  2. Durham rule: Excuses a defendant whose conduct is the product of mental disease or defect. [30]
  3. ALI test: Excuses a defendant who, because of a mental disease or defect, lacks substantial capacity to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law. [67]

As such, it constitutes a complete defense to a criminal charge. Most American jurisdictions have some form of a general insanity defense; very few have completely abolished it, [52,70,106] although in practice a jury verdict for the defense is a rarity.

The intent to commit a crime (called mens rea) is a necessary component of the commission of that crime and therefore must be proven if the perpetrator is to be convicted. When a clear intent to commit a crime is found to have been lacking (as in an act of self-defense) or the capacity to form such an intent is found to have been impaired (as in a violent act by a child or a psychotic person), no crime has been committed. Traditionally, therefore, a finding of not guilty by reason of insanity (NGRI) means that a criminal defendant has been absolved of criminal responsibility and thus will not receive a prison sentence. (Some states -- including Alaska, Maryland, Michigan, and Pennsylvania -- have adopted a "guilty but insane" provision, which effectively results in the defendant's being sentenced to a prison term.) Instead, he/she will be held responsible under a set of laws that allow for commitment to a state mental hospital or to the psychiatric unit at a prison. Depending on the jurisdiction, the theoretical burden of persuading the fact-finder of the existence or nonexistence of the defense may rest either with the prosecution or with the defendant. Moreover, the standard of proof may be as demanding as "beyond a reasonable doubt" or as permissive as "more likely than not."(89)

The term "diminished capacity" (also referred to as diminished responsibility, partial responsibility, or partial insanity) actually identifies two separate defenses. The first is best characterized as a mental-state defense negating an element of the charged crime. For example, consider a person charged with second-degree murder. In most jurisdictions, he can be found guilty only if the prosecution proves beyond a reasonable doubt that he knowingly caused the death of another. Using the first variant of "diminished capacity," a defendant may offer psychiatric or psychological evidence either that he did not have the capacity to attain or that, in fact, he did not attain the requisite mental state described by the term "knowingly." A person may suffer from diminished capacity without being legally insane, and a person may be legally insane without suffering from diminished capacity as defined here.

This variant of "diminished capacity" does not ordinarily act as a complete defense, although it may on occasion do so. For example, even if a defendant was unable to act "purposely and with deliberate malice aforethought" (a requirement for first-degree murder), he may have acted "knowingly" (a requirement for second-degree murder). If so, he may be found guilty of a "lesser-included offense," i.e., an offense that consists of some of the elements of a greater offense, but that by itself carries a lesser penalty. Only if no applicable lesser-included offense exists does this variant of "diminished capacity" act to exculpate a defendant completely.

This first variant of diminished capacity applies in some form in many states. In some, such as New Hampshire, it is applicable to negate the mental element of any crime. [79] In others, such as Iowa, it applies only so as to negate the mental element of a "specific intent" crime, i.e., a crime requiring proof of a state of mind beyond a simple intent to commit a prohibited act that has been established as fact. [93] In the case of burglary, for example, "simple intent" refers to intentionally entering the residence of another without permission. "Specific intent" (which may be harder to prove) means doing so with the intent to commit a crime therein. In still other states, such as Virginia, it is applicable only in murder cases to negate a mental element of malice or premeditation. [108]

The second variant of the diminished capacity defense is best viewed as a partial insanity approach. It was developed in California in a sequence of court decisions from the 1950s to the 1980s. [82-85] In one such case, the approach was stated as follows:

...[t]he true test must include consideration of the somewhat limited intent to which this defendant could maturely and meaningfully reflect upon the gravity of his contemplated act... [85]

In dramatic contrast to the first variant of diminished capacity, with its limited focus on whether the defendant entertained a particular mental state, this variant concerned itself with why and how the defendant entertained the mental state in question.

The effect of a successful use of this second variant of diminished capacity was similar in some respects to the insanity defense, in other respects to the first variant of diminished capacity. Like the first variant, this defense most often reduced a defendant's liability to that of a lesser offense. Thus, it was not a complete defense as is insanity. On the other hand, like the insanity defense and unlike the negation-of-an-element approach, this form of diminished capacity was applicable even if the elements of the charged crime had been proven beyond a reasonable doubt. In other words, it functioned in the manner of a partial excuse defense. An ambitious attempt to calibrate the scales of justice more finely, it was for that very reason controversial. As one legal commentator noted:

By requiring proof of something more than the actor's conscious awareness of the prescribed conduct, its consequences and the surrounding circumstances, the court hoped that the fact-finder would be able to use the experts' testimony to make more precise culpability judgments. [8]

In spite of this hope, in 1983 the California legislature abolished this second variant of diminished capacity. [19]

Historical Trends and Warring Priorities

The rise and subsequent demise of the second variant of diminished capacity in California exemplify the fundamental tension surrounding psychiatric evidence in the legal system. This controversy in turn reflects public skepticism about and impatience with specialized testimony that appears to excuse those who commit heinous acts and, in so doing, put dangerous felons on the street. In the more subtle language of the legal system, the tension lies between the benefit of incorporating psychiatric understanding of cognition and motivation into culpability decisions and the fear that courtroom battles between dueling psychiatrists will, at least, confuse a jury and, at worst, render a jury incapable of making its own independent judgment.

There are a number of problems with the insanity defense that may explain why it is rarely successful in contested cases. First, in part because of the increasing use of the third edition of the Diagnostic and Statistical Manual of the American Psychiatric Association, [4] most psychiatric diagnoses now can be made with high interrater reliability. Although a psychiatric diagnosis does not by itself constitute a finding of sanity or insanity, this consensus as to diagnosis makes it more likely that the prosecution and defense experts will concur in their assessments. As a result, many cases to which the question of insanity is relevant end in a stipulated "not guilty by reason of insanity" verdict. [99] However, since the public sees only the small proportion of contested cases, the prosecution can play on the stereotype of psychiatry as unscientific, so that the experts' disagreement typically leads to a "guilty" verdict. Second, there is a gender bias in these cases. For example, prosecutors more readily concede (based on gender-specific stereotypes) that a woman who killed her children is insane, whereas a man who committed the same act is (based on other stereotypes) often considered a priori guilty. Third, complex actions such as concealment are often taken as incontrovertible evidence of awareness of criminality and hence of criminal responsibility, when in fact they may constitute regressive behavior driven by psychosis. Fourth, there is widespread fear that the insanity defense will put dangerous individuals back on the street -- a groundless fear, since criminals tend to stay off the street longer when they are placed in secure psychiatric facilities than when they are sent to prison. Fifth, sensationalistic journalism promotes the popular stereotype that the insanity defense is just a lame excuse for vicious criminals. Sixth, as noted below, limited funds often prevent defense experts from undertaking the thorough examination needed to rebut the negative findings of a prosecution expert's cursory examination.

Diminished capacity, then, has arisen as a more flexible, inclusive alternative to the strict limits imposed on the applicability of the insanity defense, both in concept and in practice. In particular, the now abandoned California approach to diminished capacity developed as a judicial response to the limitations of the M'Naghteninsanity rule. [26] M'Naghten was viewed as unduly narrow because, having a purely cognitive focus, it lacked the element of volition or irresistible impulse. [8] Over time, the California Supreme Court crafted a means of admitting psychiatric evidence that took account of a defendant's inability to conform his conduct to the law. As noted above, this emphasis temporarily produced a form of diminished capacity that examined why and how a defendant entertained a particular mental state.

Criticism of the M'Naghten rule had not been limited to California, and other states had modified their insanity tests as a way of acknowledging the expanding understanding of relevant psychological and psychiatric factors. [9,26] The California Supreme Court maintained the diminished-capacity defense even after the state adopted the broader ALI test for insanity. [26,81] It was only when legislative action derailed this approach in 1983 that the admissibility of psychiatric evidence was temporarily scaled back.

The move to curb the admissibility of expert testimony as to mental illness in criminal cases was also reflected in the early 1980's by an amendment to the Federal Rules of Evidence and to statutory law. In 1984, the Congress amended Rule 704 to prohibit an expert witness in a criminal case who was testifying as to the defendant's mental state or condition from stating a conclusory opinion as to whether, on the ultimate issue, the defendant was or was not insane. [32] It also codified federal insanity law with a version of M'Naghten and further provided that "mental disease or defect does not otherwise constitute a defense." [104] Both provisions were explicitly intended to limit the defense in criminal cases from using "needlessly confusing" psychiatric testimony. [105]

Ironically, this contraction in the formal admissibility of expert psychiatric and psychological evidence with respect to the insanity defense and diminished capacity has occurred simultaneously with an actual expansion in the admissibility of such evidence more broadly in criminal law. In the last fifteen years, expert testimony about battered women's syndrome increasingly has been admitted in criminal cases across the country. Such testimony has supported formal defenses of duress, self-defense, defense of another, and insanity, as well as more informal defenses such as the negation of a mental state that is a requisite component of the crime (i.e., diminished capacity). [1]

During the 1980s courts have also become more inclined to admit expert psychiatric testimony about Post-Traumatic Stress Disorder. Again, such testimony has been offered as part of an insanity defense, to negate a mental element of recklessness, and for other purposes as well, such as to establish the voluntariness of confessions or the reliability of eyewitness testimony. [73,94,95] More recently, courts have begun to grapple with the admissibility of expert testimony concerning child sexual abuse accommodation syndrome, [72] rape trauma syndrome, and repressed memories. [55] This development has occurred as the intensified prosecution of sexual assault cases, particularly child sexual assault cases, has raised complex issues about memory, affect, and credibility of victims and other witnesses. Thus, the popular assumption that an across-the-board systemic contraction in the role of expert mental-state evidence took place at the beginning of the Reagan era is a vast oversimplification. Almost in spite of itself, the criminal justice system continues to take advantage of the expansion of scientific knowledge in psychiatry and psychology.

The Broader Significance of Diminished Capacity

Although the assessment of diminished capacity in criminal cases constitutes only a modest portion of the typical forensic psychiatrist's work, it opens a window onto a cluster of related issues. The issue of state of mind as a defense to criminal charges furnishes just one example of the forensic psychiatrist's understanding of varying and fluctuating human capacities, an understanding that is applied in civil as well as criminal law. Thus, the controversy over diminished capacity serves as a test case of the acceptance and legitimacy of psychiatry in the courtroom.

Diminished capacity has been the subject of much learned argument as well as judicial and legislative tinkering. Others [20] besides Stone have expressed skepticism about the validity of translating clinical insights into legally relevant testimony about a person's state of mind. Morse [71] has argued vigorously against the second ("partial excuse") variant of diminished capacity as unfairly exempting mentally disordered persons from accountability for their conduct, while Dressler [28] defends the doctrine as reflective of actual differences in people's capacity for self-control. In response to Morse's contention that a uniform standard of responsibility best respects the dignity of the accused, Dressler asserts, "We treat criminal actors with dignity when we treat each individual as unique." [28]

While scholars debate and policy makers make adjustments, we may discern a practical resolution in the disposition of cases by juries, even when diminished capacity is not explicitly at issue. In two recent Massachusetts cases in which an author (HJB) was an expert witness for the defense, defendants charged with first-degree murder were found guilty of second-degree murder. [61,62] One way of understanding these outcomes is that they were implicit diminished-capacity verdicts. In both cases the jury found that a crime had been committed, that an insanity defense did not apply, but that the severity of the offense was mitigated by evidence of the state of mind of the accused, which precluded premeditation. Thus, it is not surprising that the usefulness of such evidence in mounting a defense is acknowledged in a handbook of instructions for Massachusetts attorneys. [91]

Thus, even in the areas where their contribution is most under attack, psychiatrists seem to offer a perspective that the courts cannot easily do without. As Meyers [66] put it more than a quarter-century ago, the psychiatrist "is placed to an ever-increasing degree in the decisions of the court. This is not strange, for criminal law deals with human nature and human weaknesses." Noting the impossibility of specifying the intention behind a particular act in isolation from the larger flow of a person's life, he stated, "It is necessary in arriving at an understanding of the intent operative, the mens rea, to know the whole person." [66] This understanding is what the psychiatrist -- specifically, the forensic psychiatrist -- is trained to provide.

The mixed results of appellate court decisions in California [103] and elsewhere [22,27,60,76] concerning the admissibility of evidence of diminished capacity in recent years show the courts to be ambivalent in their wish to be informed by a deep human understanding. Forensic psychiatry is caught in the middle of this conflict, as reflected in the extremes of cynicism and idealization with which the field is viewed. Its practitioners can take heart, however, from the natural curiosity shown by the educated lay persons who make up juries about the existential situations of the people who come before them -- i.e., about how those individuals feel, think, and come to act. As much as anything, this deep-seated curiosity invites the presence of the psychiatrist in the courtroom.

Forensic Psychiatry Rehabilitated

In the wake of the Hinckley trial, Stone [97,99] raised ethical and epistemological concerns about the courtroom role of the forensic psychiatrist. These stemmed from the relativity and imprecision of scientifically established "truth" in psychiatry, the difficulty of extricating oneself from the empathic clinical role, conflicting allegiances to the patient and to the court, and the difficulty of explaining to jurors how psychiatrists can tell the whole truth while making the best possible case for their side in an adversarial context. Subsequent developments, while not eliminating these concerns, have addressed them so as to restore credibility to the forensic specialty.

Limitations on Testimony

Ironically, the official abandonment of the looser variant of diminished capacity has itself restored some credibility to psychiatric testimony by limiting its scope to areas of recognized professional (i.e., medical rather than legal) expertise. According to Thorpe and Baumeister, [103] "experts are no longer called on to make social judgments [i.e., about guilt or innocence] and are therefore less subject to contradictions from members of their own field." This narrowing of scope parallels the tightening of standards for the insanity defense, as the Durham rule, which put the expert witness in the position of deciding whether a criminal act was the "product" of mental disease or defect, has been supplanted by either the American Law Institute (ALI) test (incapacity to appreciate wrongfulness of one's conduct or to conform one's conduct to the law) or the older, more restrictive M'Naghten rule, which contains essentially only the cognitive half of the ALI test (appreciation of wrongfulness of conduct). [10,91] The post-Hinckley proposal of the American Psychiatric Association (APA) for revising the insanity defense likewise dropped the behavioral half of the ALI test (ability to conform conduct to the requirements of law), [5] and the American Bar Association (ABA) soon followed suit. [3]

Stone expressed skepticism about whether even the APA's proposed changes would really remedy the subjectivity and overreaching that he saw as vitiating psychiatric testimony. Other observers have been more sanguine. Calling the retrenchments of the 1980s a "windfall for the mental health field," Thorpe and Baumeister [103] believe that "almost everything that could have been presented before will still be allowed in, except for the issue of the ultimate conclusion...." As a result, they conclude, "the new changes will place the mental health field back into its proper perspective -- as a valuable specialty with well-trained, knowledgeable professionals able to explain some of the dark recesses of the human mind." Whether or not this degree of optimism proves justified, we do see psychiatry and the law accommodating to each other to achieve a workable equilibrium.

Clarification of Ethical Standards

In its ethical pronouncements and practices, the forensic field has responded constructively to the unfavorable publicity of a decade ago and to the issues crystallized in Stone's critique. Even among the reputable, well-prepared experts in the Hinckley trial, Stone noted a damaging inconsistency and confusion of roles. The defense experts acted as sympathetic clinicians, while the prosecution experts adopted a more inquisitorial approach. These different information-gathering perspectives, combined with different theoretical foundations, led to radically divergent testimony, with each side clinging to its perceived certitudes.

These and other observations made by Stone are addressed in the American Academy of Psychiatry and the Law's (AAPL) Ethical Guidelines for the Practice of Forensic Psychiatry (1989 revision). [2] In addition to clauses establishing confidentiality and informed consent (and the limits of both) and ruling out contingency fees, the explanatory paragraphs include the following highly relevant items:

...the psychiatrist should inform the evaluee that although he is a psychiatrist, he is not the evaluee's "doctor."...There is a continuing obligation to be sensitive to the fact that although a warning has been given, there may be slippage and a treatment relationship may develop in the mind of the examinee.

Being retained by one side in a civil or criminal matter exposes the forensic psychiatrist to the potential for unintended bias and the danger of distortion of his opinion. It is the responsibility of the forensic psychiatrist to minimize such hazards by carrying out his responsibilities in an honest manner striving to reach an objective opinion.

A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.

Although stipulations such as these cannot by themselves resolve all the dilemmas that arise in practice, they do show that the field is aware of its own complexities and pitfalls.

Two ethical principles -- uniform skepticism and avoiding dual agency -- warrant additional comment inasmuch as they are crucial to the effectiveness and credibility of forensic practice.

Uniform skepticism. The forensic psychiatrist must approach every examinee with skepticism. One must weigh the evidence even while expecting an attempt to "con" the examiner. This initial skepticism is as essential for the defense witness interviewing the accused or the plaintiff's/prosecution witness interviewing the victim claiming psychic damage as it is for the expert retained by the attorney opposed to the examinee. The most effective expert witness is the one who, over the course of an evaluation, engages in a thorough self-cross-examination and assumes no finding until it is proven.

Avoiding dual agency. [109] One of the unholy temptations of this field is the attorney's appeal to the treating clinician who is also a forensic specialist: "You already know the patient; why don't you do the forensic evaluation?" The fallacy in this is that the treating psychiatrist knows the patient in a different way. As an empathic listener whose task is to suspend disbelief and enter into the patient's subjective world, the therapist cannot perform the kind of objective assessment necessary to form an expert opinion with the requisite degree of medical certainty. The treacherous lack of clarity of therapeutic boundaries and the suggestibility of the best-intentioned therapists have been described long ago, in the context of child psychiatry, by Ferenczi [34] and Anna Freud. [38] When the patient is in sufficient distress (for example, in danger of becoming psychotic or suicidal), even a therapist who has made every effort to keep boundaries clear may, out of compassion and clinical desperation, do what makes the patient feel better -- for example, allow oneself to be persuaded by a false accusation of sexual abuse against a third party.

That is where the problems of dual agency begin; they end with the patient's sense of betrayal at the loss of clinical confidentiality and at the shattering revelations made, under either direct or cross-examination, by the once trusted therapist. In between are a range of clinical, ethical, and practical problems, including the compromise of the treater/evaluator's own privacy. Two recent cases illustrate the tragic outcomes that can occur as a result of dual agency. In a prominent Colorado case that caused a rift within the APA, a female psychiatrist testified on behalf of a female patient who had charged a previous therapist, a male psychiatrist, with sexual abuse. The APA-funded defense attorneys countered by investigating the female psychiatrist's personal life and using damaging questions to discredit her role in the patient's treatment. [31,102]

In a New Hampshire case in which two of the authors participated as defense attorney and expert witness, a man who had just killed his wife and children and then attempted suicide was treated by a psychiatrist in a hospital emergency room. At trial, this psychiatrist testified for the prosecution about the man's mental state. The first-degree murder conviction that resulted is currently under appeal on the grounds of the prejudicial effect of this unethical mixing of roles. [74] What must the jury conclude when the man's "own doctor" took the witness stand against his wishes to testify against him? And how can this man ever trust a therapist again? The content of such testimony could easily have been communicated to the jury, with far less likelihood of prejudice, by simply introducing the medical record into evidence. With his usual prescience, Stone [96] pointed the way out of one of the most vexing dilemmas he identified by proposing that the role of consultant/evaluator be separated clearly from that of treating clinician.

Increasingly, then, the dilemma of how to maintain professional ethics in an adversarial situation is being resolved by the realization that there is no necessary contradiction between the two roles or stances. In other fields, such as business, it is coming to be recognized that being ethical in a competitive situation may give one an advantage rather than a handicap. [51] Likewise, the forensic psychiatrist is likely to find that ethics and effectiveness are not mutually exclusive, but mutually reinforcing. The more scrupulously prepared the witness is, the less vulnerable he or she will be to damaging cross-examination. Moreover, a genuinely reputable forensic specialist usually can demonstrate credibility to the jury on direct examination and deepen the jury's understanding under cross-examination. Such an expert witness will not be in danger of being confused with an expedient "hired gun."

Evolution of Scientific Standards

The ethical principles discussed above (keeping a clear perspective while recognizing that no single perspective reveals the whole truth; striving for objectivity while recognizing that perfect objectivity is unattainable) are also epistemological principles. They go to the heart of psychiatry as a science. They are obscured, however, by the naive notion of "hard," objective science that has been in vogue in this era of biological psychiatry and that Stone [97] believed the courts to be holding up as a standard for psychiatry in the early 1980s. Powerful economic forces, together with the current mood of our culture, have created a bias toward simple answers and tidy solutions. Now that we have moved from the 50-minute therapy hour to the 15-minute psychopharmacology consult, reductionistic procedures and explanations understandably have seductive appeal. Still, it is hardly surprising that serious and spirited opposition to the reductionistic trend has arisen, [50,80] since that trend negates much of what psychiatry has stood for.

Ironically, while psychiatry has been reshaping itself to fit a nineteenth-century image of "bench science," science itself has evolved in a direction more compatible with what psychiatry traditionally has been. Twentieth-century science, led by physics, has moved away from the rigid Newtonian paradigm of totally predictable, mechanistic causal relationships and definitive experiments and toward a probability-based model of reality. A modern science of indeterminacy takes into account multiple causes in ever-changing configurations, the impossibility of achieving absolute certainty or objectivity (thus necessitating different points of view and multiple readings of data over time), and the validity of subjective as well as objective data. This "probabilistic paradigm" gives us the best available picture of the complex biopsychosocial interrelationships that underlie decision making in various areas of medicine, [14] including psychiatry. [44]

The application of this paradigm to forensic evaluation begins with the recognition that psychiatry involves different dimensions of understanding and that some of the data are necessarily subjective. [17,45] As Meyers [66] puts it, "Some authors claim it to be impossible to make correct assumptions from subjective data, but this is only because the investigation has not been incisive enough." In other words, subjective does not mean loose or uncritical. The investigation must be disciplined, in the manner suggested by Thorpe and Baumeister:

[Expert witnesses] should acknowledge the possibility of other explanations but emphasize the probabilities of their opinions based on an analysis of the facts. [T]he expert should try to defend his or her position from multiple sources if available. A single brief interview with a defendant might well be scoffed at as insufficient to form an opinion.... Consequently, police reports and other available records concerning the event in question should be read, prior testimony should be reviewed and past psychiatric hospitalizations, as well as other medical records, should be examined. Conversations with friends, relatives, and neighbors often provide the basis for a solid opinion.... [103]

There are scientific standards for the forensic evaluation, as there are for psychiatry generally, but these are not cut-and-dried. A scientific evaluation is a process of data gathering, reflection, hypothesis formation, hypothesis testing, and a reexamination of existing data in light of such a process. All this requires considerable time and resources. Over time, a reliable degree of objectivity is fashioned from many subjective viewpoints through the considered use of multiple sources of data. A one-shot interview with the defendant, plaintiff, or crime victim is unlikely to meet the standard of the probabilistic paradigm, where no one "experiment" can capture a complex and changing reality.

The saying of Heraclitus that one never steps in the same river twice points to the need to test the waters at a number of times and places, through repeated interviews as well as collateral sources. An extended series of interviews enables the evaluator to uncover underlying patterns of affective and cognitive functioning, the range and consistency of the examinee's emotional reactions, areas of particular sensitivity and vulnerability, reactions to confrontation, and the web of life history that gives meaning to a particular event. One can thus proceed with a reconstruction of a state of mind always removed by time and social context from the events in question. This deep understanding includes an assessment of whether the person is faking, malingering, or exaggerating.

In the course of the interviews, the evaluator seeks to form an alliance with the part of the person that wants to communicate his or her experience truthfully. This alliance is not identical to, but also not entirely dissimilar to a therapeutic alliance. [46,64] Meanwhile, the evaluator obtains corroborative evidence from interviews with others (e.g., family members), police and medical records, reports and depositions of other expert witnesses, and psychological testing. All of this evidence is then subjected to microanalysis and the testing of alternative hypotheses. The evaluator puts together different scenarios and tests which ones stand up best under scrutiny.

Thus, to understand the scientific basis of forensic psychiatry, the courts and the public must give up the naive wish that scientific testimony can offer absolute, or moral, certainty. On the contrary, the understanding furnished by science in general [87] and medical science in particular (including psychiatry) is couched in terms of "reasonable medical certainty," which means "more likely than not." Occasionally, it rises to the level of "clear and convincing proof," but never to absolute (moral) certainty.

This "postmodern" conception of science allows us to answer what might otherwise be the most intractable objection to forensic psychiatric testimony Stone [97] makes -- namely, its failure to meet the standards of "bench scientists." Stone may have conveyed an accurate picture of the scientific standards set by the courts in the early 1980s, as well as of the jury biases that may still need to be overcome in cases where anxiety and horror lead people to oversimplify. However, the recent evolution in the law's sophistication regarding causality in science might pleasantly surprise forensic psychiatrists and allay Stone's concern.

As science studies increasingly complex systems in which causality is (either inherently or as a practical matter) indeterministic, the law finds itself less willing and able to impose a reductionistic standard of scientific explanation. From case law comes the example of the Supreme Court's highly publicized decision in Daubert and Daubert v. Merrell Dow Pharmaceuticals, [23] which gave judges leeway to allow or disallow expert scientific testimony irrespective of the established standards in the field of expertise. An example from statutory law is the Maine workers' compensation statute of 1993, which provides that the work stress in question must be "the predominant cause of the mental injury" (emphasis added). [58] A predominant cause is not a sole or absolute cause; the very term implicitly recognizes complexity in causation. In a recent case governed by this statute, the claim that a worker's hypertension was caused by extraordinary work stress was challenged by the employer, who cited a weak family history of hypertension. Having reviewed the pattern of work stress and the depressive and anxiety reactions that ensued, resulting in a compulsive eating disorder and major weight gain, the forensic psychiatrist retained by the claimant carefully traced the remission in hypertension that occurred with a reduction in work stress and a subsequent reduction in overeating and weight gain. In this way, clear and convincing evidence was provided for the predominant causal influence of the work stress.

Thus, a growing recognition of the limits of certainty in science is bringing the kind of understanding achieved by psychiatry back into the realm of the scientific and, in turn, back into the courtroom as relevant and reliable evidence. The forensic psychiatrist need not feel constrained, for example, by the simplistic notion that all behavior is caused by brain chemistry. Rather, it is the forensic psychiatrist's responsibility to communicate effectively (with a view toward the degree of proof or certainty required under applicable law) the complex interactions among mind, brain states, and behavior. One who testifies in this manner will usually find the courts hospitable. Such evidence does not, however, take the place of the value and moral judgments that the legal system makes as part of its fact-finding function.

A distinguished forensic psychiatrist, the late Bernard Diamond, set forth the following scientific scruples to guide his colleagues:

[The testifying psychiatrist] must clearly distinguish between his own idiosyncratic views and that of the scientific community. He must not claim as scientifically valid published research and theories that have not been replicated by others and that are not accepted by the relevant community of researchers. He must not assert unproven and untested hypotheses, published or not, to be clinical truths and clinical facts...[Forensic] examinations must conform to generally accepted clinical standards, both as to content and length. The confidence level of the expert's opinion should always be expressed. Exaggerated expressions of confidence must be avoided. [25]

Diamond urged that psychiatrists who were prevented by attorneys or judges from telling "the whole story" in court should decline to testify. Likewise, psychiatrists who are prevented from learning the whole story by limited funds (public or private) should not claim to have conducted an adequate forensic evaluation when they have not in fact done so. A scientific, ethically responsible evaluation takes time, and a professional's time costs money. A psychiatrist who colludes with hard-pressed state agencies, attorneys, or clients by providing the appearance rather than the reality of a forensic evaluation contributes to discrediting both the medical and legal professions.

Basic Concepts in Forensic Evaluation

Much of the evaluation and analysis performed by the forensic specialist takes the form of competence assessment, of which the assessment of criminal responsibility is just one application. The question of competence underlies two other highly salient issues in the current medicolegal context, informed consent and Post-Traumatic Stress Disorder. An understanding of these three areas and how they are connected with one another illuminates the thinking of the forensic psychiatrist and the unique understanding he or she brings to the courtroom.

Competence: From Global to Local

Diminished capacity as it bears on criminal responsibility has been used in this chapter to exemplify a constellation of issues having to do with a person's ability to make judgments and carry out necessary functions. Psychiatrists assess and courts ultimately determine people's competence to stand trial, to manage and dispose of property, to make wills, and to consent to or refuse treatment. With the refinement of forensic psychiatry as a scientific discipline, these and other competencies are coming to be seen as separate and distinct. Traditionally, individuals were judged to be generally competent or incompetent. However, as we learn to untangle the strands of a person's life history and their differential effects on the person's capacities, psychiatry is moving from a global to a local notion of competence -- that is, to a notion of competence as decision-specific.

Much research and exploration has contributed to this evolving awareness. [68] From Freud's theories of conflict and dissociation to the emergence of the multiple-personality-disorder paradigm and Gardner's notion of the seven types of intelligence [37] -- all these developments point away from a unitary conception of mind and toward a better differentiated, more fluid image of the mind as a composite of inconsistently developed, variable, and fluctuating capacities. This notion of selective incompetence has been developed in the form of a typology of incompetencies [54] and applied systematically to criminal responsibility. [35] In forensic psychiatry it has found expression in the multidimensional assessment of dangerousness [43] and in guidelines for recognizing subtle signs of incompetence. [41]

When conducting a forensic evaluation, one must keep in mind that the evaluee has numerous capacities, some of which may be impaired while others are not. Commonly, the cognitive capacities remain unimpaired, but cannot be effectively used because of an affective disorder. As a result, the person can discuss options lucidly but cannot make a wise or even rational decision. [18] This recognition of the subtle continuities and discontinuities between cognitive and affective processes is beginning to be shared by the courts. In 1993 the New Jersey Supreme Court ruled that the kind of "mental disease or defect" required under the state's diminished-capacity statute could change with evolving medical knowledge. In particular, the court's ruling held, "all mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished-capacity defense if...experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties...." [75] This decision signals a trend toward inclusion of personality, mood, and impulse disorders among the factors contributing to diminished capacity and to impaired competence generally.

Moreover, particular competencies may be impaired in some circumstances but not in others. That is, competence is context-dependent. The contexts that bear most heavily upon competence often involve interpersonal relationships. One highly salient interpersonal context is the relationship with one's physician or attorney, which can be an environment of emotional security and considered judgment or one of disabling fear and suspicion. Another such context is family relationships, which may either reinforce or attenuate a person's orientation to reality. For example, a man kills his wife and children in the belief that the world is an unsafe place and that the only way to protect himself and his family is to find the quickest way to take them all to heaven. This man may be capable of distinguishing right from wrong and conforming his conduct to the law in other respects, but not with respect to the specific acts with which he is charged. [62]

At the extreme, situational shifts in competence may add up to a transformation of personal identity. A person's self is a composite of (among other factors) personality, mood, cognitive strategies, values, perceptions, and experience. Changes in these components are neurochemically, intrapsychically, and socially mediated. Thus, a person acting under the influence of drugs or of Post-Traumatic Stress Disorder may exhibit a radical shift in identity. Given contextual variations of sufficient frequency and magnitude, a person may take on something approaching a multiple personality.

This comprehensive understanding of fluctuating competencies, together with their causes and effects, provides a foundation for understanding the much-disputed relationship between mental illness and violence. Mental illness in its various forms tends to impair competence in its various forms. It thus impairs people's awareness of options and their ability to make choices. Under such impairment, a person who feels threatened is more likely to react violently. Similarly, in the case of a nonviolent crime, a depressed person who feels trapped and hopeless may believe that he or she has no alternative but to embezzle funds. A person who is mentally ill has less freedom to make choices and therefore has a diminished ability to conform to the law. This forensic psychiatric understanding, based on close observation of individuals, is consistent with empirical data on the incidence of violence in association with the different forms of mental illness. [65,69] For example, mental illness is weakly correlated with the incidence of murder, but strongly correlated with that of killing accompanied by suicide (misnamed "murder-suicide"). [110] Seen in this light, the relationship between mental illness and violence can be acknowledged and addressed without stigmatizing the mentally ill.

Informed Consent as a Process

An expanding area of competence assessment is informed consent, which manifests itself in issues ranging from the right to refuse treatment to the right to receive high-cost treatment. [86] The informed-consent framework is being adapted for other issues as well, such as the competence of mentally ill or mentally retarded individuals to consent to sexual relations in or out of institutions. Meanwhile, the seemingly straightforward question of competence to give informed consent has taken on depth and complexity with the recognition of selective competence. For example, a patient whose competence is impaired at the affective level by bipolar disorder may incompetently refuse treatment with lithium even while being able to recite accurately the risks and benefits of the drug. In a manic state, the possibility of needing the medication may not `feel real' to the patient. While depressed, the patient may feel too dispirited and worthless to apply the information he possesses. [18]

This recognition that informed consent is not a simple matter prompts reconsideration of what constitutes an adequate informed-consent process. If a person's whole capacities need to be engaged for competent consent to be given, then merely having the patient sign a form is insufficient. Such pro forma informed consent minimally addresses the cognitive dimension, but does not bring about the kind of deep understanding on the patient's part that requires affective as well as cognitive engagement. Indeed, signing a long checklist of improbable risks can reduce affective competence by arousing unrealistic feelings either of helplessness and dread or of certainty and control. If, instead, the patient is to make a truly informed, competent choice, the physician must engage in an ongoing informed-consent process, creating an alliance with the patient around the need to make decisions in the face of uncertainty. [14,16,42] The forensic psychiatrist, versed in both the affective and cognitive components of decision making, increasingly will be called on to determine whether such a process has occurred.

PTSD as an Indicator of Specific Impairments of Competence

Since Post-Traumatic Stress Disorder (PTSD) became an officially recognized psychiatric diagnosis in 1980, it has brought about revolutionary changes in the relationship between psychiatry and the law. [100] In criminal law, variants of PTSD such as battered-woman syndrome have bolstered defenses ranging from diminished capacity to self-defense. Crime victims have used PTSD to press their claims for strict sentencing of the offender and for compensation. In civil law, PTSD provides a reliable diagnostic category, which includes physical signs and symptoms, and an identifiable proximate cause for numerous forms of psychic damage. [101] These include traumas resulting from rape, incest, sexual abuse by therapists, sexual or other workplace harassment, and physical injury caused by negligence (e.g., automobile accidents). Not only can PTSD be a major element of damages in cases of physical injury, [78] but PTSD itself has (in varying proportions) physical as well as affective and cognitive manifestations. [101]

Nonetheless, there is an underlying complexity to PTSD that belies its image (in the eyes of cynics) as a neat package in which all manner of damage claims can be wrapped with black-and-white ribbon and an expensive price tag. For example, the alleged traumatic event may not have occurred. [40] Or the symptoms may be misattributed to an actual traumatic event to avoid the memory of an even more traumatic event. Thus, a false memory may, by way of displacement, feed off a real experience.

Contrary to the popular stereotype, a diagnosis of PTSD does not signify a simple ascription of causality to one event. Properly understood, PTSD results from an interaction between environmental stress (the traumatic event) and preexisting capacities. People are vulnerable in different degrees to different kinds of trauma on the basis of their past experience. [56] The effects of the trauma depend not only of the intensity of the stressor, but also on the feelings of isolation and helplessness the person associates with that category of event. The evaluee may, on occasion, malinger, exaggerate, or misattribute such symptoms, but it is also possible that the evaluee will deny, minimize, or discount the symptomatology by way of attempting to control the underlying distress as well as the shame secondary to experiencing it.

This complex understanding of PTSD amounts to a rediscovery of psychoanalytic insight. [90] Even as psychodynamic psychiatry is losing out in the clinical marketplace to drug therapy and cost-containment, its interweaving of the many strands of past and present personal history is finding receptive ears in at least some courtrooms. Much depends on the judge as well as on the ideological climate and available resources in a given jurisdiction. The complex narrative of a life history is a story that the courts both want to hear and resist hearing. Whether forensic psychiatrists are given the wherewithal to tell this story in full depends on the ability of public defenders to argue for, and the willingness of underfunded, overworked courts to allocate, sufficient funds to mount an adequate defense. A foundation for vigorous advocacy and ample allocation has been laid by a U.S. Supreme Court decision that requires the federal and state governments to provide adequate medical care for people in their custody. [86] The extent to which this standard will be applied to forensic evaluations will be decided on a state-by-state and case-by-case basis. [29]

If the severity of PTSD depends on prior vulnerabilities, traumatic stress in turn creates future vulnerabilities. That is, some capacities can be diminished under stress or as a consequence of stress. In this way, PTSD may be an underlying factor in diminished capacity or selective impairment of competence. A person may function well in a non-conflictual, non-stressful area (e.g., work), but not in a conflictual, stressful area (e.g., family life). These are the sorts of patterns that the forensic psychiatrist traces.

Evaluees can attempt to fake, malinger, or exaggerate PTSD symptomatology, but the sensitive evaluator, working over time to achieve a thoroughgoing contextual understanding, can usually distinguish the fraudulent from the genuine. Such a differentiation involves a deep understanding of the evaluee, beginning with a developmental history, inventory of characteristic ways of coping with stress and distress, and an understanding of the overall life course. The evaluator must also take into account the possible effects of prior traumas on the reliability of the victim/witness. Although standardized tests may be helpful in this regard, they are no substitute for an extended forensic psychiatric evaluation.

As noted above, not only faking, but its opposite number -- repression, denial, or other avoidance of reliving the traumatic stress -- can be a diagnostic pitfall. One of the capacities impaired by PTSD may indeed be the capacity to see a connection between the symptoms and the stressor. Particularly in cases of sexual abuse in therapy, courts have begun to begun to toll the statute of limitations only from the time when the plaintiff became aware of this connection (i.e., of the damage resulting from the trauma), rather than from the time when the trauma occurred. [48,88] Forensic psychiatrists will need to continue to raise the consciousness of the courts concerning this principle, as well as to make the assessments necessary to apply it on a case-by-case basis.

Forensic practice also entails sensitivity to special populations especially at risk for PTSD. These include those traumatized by their interactions with the medical and legal systems. Serious illness itself can cause traumatic stress, as it may bring with it pain, fear, feelings of helplessness, strained family relationships, difficult interactions with health professionals, and life-and-death choices that challenge a person's or family's decision-making capacities. [13,14] Contact with the legal system, too, may have unintended side effects, including loss of privacy, disempowerment, rupture of previously supportive relationships, and the reliving of past traumas in an atmosphere of delay, adversarialization, and disappointed hopes. Such stresses attributable to the legal process have been called "critogenic" (literally "judge-made") by analogy with "iatrogenic." [12] They can be so severe that attorneys and therapists are urged to engage in an informed-consent process with clients about the risks of undertaking litigation. [31] Forensic psychiatrists need to keep in mind such potentially traumatic stresses in evaluations or consultations involving people enmeshed in medical and/or legal processes, including divorce proceedings and custody disputes.

Application of These Concepts to a Major Medical Malpractice Case

The case of Meador v. Stahler and Gheridian, [63] in which one of the authors (HJB) served as expert witness, illustrates how the concepts of competence, informed consent, and PTSD are linked together in a thorough forensic evaluation. A pregnant woman who had been promised a trial of labor after a prior cesarean section had this choice denied her by her obstetricians although no obstetrical risk factors had arisen during her pregnancy. She underwent what she felt to be a coerced cesarean section, after which she suffered rare and disabling physical complications that prevented her from fulfilling her family responsibilities or seeking employment for several years. A forensic evaluation was conducted, involving numerous interviews with the patient and family members and review of collateral sources. The evaluation revealed that the woman showed numerous emotional and physical symptoms of PTSD and that her husband and children also had suffered significant harm as a result of the disruption of family relationships.

The key to the severity of the trauma lay in the sudden and devastating loss of control this woman experienced in the area of health-care decision making. Beginning early in life, she had learned to cope with life-threatening illness in her family by respecting health professionals and sharing decision-making responsibility with them. Taking to heart these positive, empowering lessons, she undertook a career in nursing. Experiencing the denial of informed consent in childbirth as a betrayal on the part of health professionals, she lost her accustomed strategy for coping with life together with her sense of herself as a competent, effective decision maker. This loss of confidence and control then generalized to other areas of her life, including her family relationships. She had helped hold together her family of origin through wise decision making in the face of tragic illness. Now the family she had created was torn asunder by a profound loss of control in the same life context.

It was noteworthy that this case did not meet the technical requirements for an action based on informed consent established by Harnish v. Children's Hospital Medical Center, [47] since the woman had signed an informed-consent form for the cesarean section (to be used in case of emergency) and since the particular complications she suffered were not foreseeable. Thus, the case was brought as a malpractice action, on the theory that the failure to engage in an informed-consent process (including accurate representation of the risks and benefits of the alternative procedure of vaginal birth) constituted substandard, negligent medical care. The jury agreed, awarding $1.5 million for pain and suffering, lost earning capacity, loss of consortium (to the husband and children), and interest. Through a careful analysis of the interaction of the plaintiff's childhood and adult development, characteristic defenses, life course, and stressor, the forensic psychiatrist was able to construct a persuasive narrative of impairment of competence due to traumatic stress.

The ABCDs of Forensic Evaluation

A good example of the skeptical mindset and multivariate analysis that characterize a thorough forensic evaluation is provided by a case in which a female patient accused a female clinician of sexual misconduct. In a series of interviews with the plaintiff conducted over a period of weeks, the forensic psychiatrist (HJB) retained by defense counsel attended to the following key variables, which he terms the ABCDs of forensic evaluation in such cases of alleged emotional injury:

  1. Affect. Just as the clinician is aware of transference and countertransference, the evaluator needs to observe the feelings of both parties in the interview. In this case the woman being interviewed initially displayed intense anger, which eventually gave way to sadness. The evaluator felt this sadness as well.
  2. Boundaries. The evaluee made numerous attempts to come closer to the interviewer physically and to inquire into his personal life. Her initiation of boundary crossings provided a clue as to what might have happened between her and the defendant therapist.
  3. Credibility. The evaluee spoke easily about her experience with the therapist in question. She had more difficulty verbalizing her feelings of frustration and loss over the disappointments she had suffered, after a promising start, in her personal and professional life.
  4. Damages. The patient had suffered severe disabilities in several areas of functioning. Therapy with a number of clinicians, culminating in the one she was suing, had brought about little or no improvement. The examiner noted the underlying sense of despair.

Guided by these observations, the evaluator was able to establish a working (though not therapeutic) alliance with the evaluee -- this despite the fact that he had been retained by the opposing party in the lawsuit. This working alliance [46,64] gave the evaluee the emotional strength to take responsibility for her inner reality. She remembered that the alleged sexual contact with her therapist had not occurred. She and the therapist had exchanged hugs, but she now saw that her interpretation of these gestures as sexual reflected her deep wish to be taken care of by the therapist and her disappointment that this wish could not be simply and straightforwardly gratified. Following this forensic psychiatric examination, she withdrew her legal action.

Other Applications

This chapter has reviewed the developing role of the forensic psychiatrist throughout the interface between medicine and law. [6] In criminal law this involves well-established areas such as the insanity defense and competence to stand trial as well as the increasing use of forensic psychiatrists to evaluate for diminished capacity. In civil law we have touched upon numerous forms of competence assessment and the growing use of forensic psychiatrists for the assessment of the informed-consent process in professional malpractice cases, emotional injury secondary to physical injury, Post-Traumatic Stress Disorder in its many variations, loss of consortium and other family and marital/divorce issues, [107] and accusations of sexual misconduct on the part of therapists or other health professionals. Forensic specialists conduct psychological autopsies in cases of suicide, disputed wills, and claims of emotional harm filed on behalf of deceased clients.

In addition, forensic psychiatrists are asked to provide a variety of related professional services in the process of consultation. These include services such as client management, witness evaluation, witness preparation, jury selection, and establishing witness credibility. A forensic psychiatrist can even provide consultations for attorneys on difficult questions of client confidentiality or conflict of interest, where assessment of the client's state of mind is a prerequisite to ascertaining whether potential ethical dilemmas have a basis in fact. Such a consultant might have prevented the unfortunate case in which an attorney felt compelled to threaten to turn in his client for perjury when the client changed his account of the alleged crime. [77] From the forensic psychiatric perspective, a person's initial memory of an event is not always reliable and may be revised as the person's neurochemical, intrapsychic, and interpersonal environments change. Rather than assume that the client's first story was the absolute truth (a residue of the old deterministic science), the attorney might have been advised that the client's recollections were context-specific and that the intention to commit perjury could therefore not be inferred with the absolute certainty which the attorney seemed to assume as the basis for his threat.

The following (in brief) are some other important medicolegal questions on which forensic psychiatric expertise is deployed as the new millenium approaches:

Competence to confess. Many psychiatrists are familiar with false confessions made in therapy or to the police, especially by psychotically depressed or schizotypal individuals. A schizophrenic man spent nine years in prison in Florida for a double murder he confessed to but did not commit. [59] Although the U.S. Supreme Court has ruled that incompetent confessions are admissible as evidence when they are uncoerced, the Court also allowed the admission of psychological test results bearing upon the defendant's mental state at the time of the confession. [21] Juries, on the other hand, can be receptive to forensic psychiatric testimony in such cases. Thus, a deeply depressed, delusionally guilty man who had confessed to embezzling city funds that he had not taken was acquitted on the basis of expert psychiatric testimony by one of the authors. [92] As is often the case in false confessions, this man was at best competent to confess in a cognitive sense, but not in an affective sense. [18] Forensic psychiatrists may also be called on to deal with reductionistic equivalents of false confessions, such as the plethysmograph, or "P-graph," which is sometimes used by law-enforcement agencies to impute criminality on the basis of physical measurements of a man's sexual arousal in response to particular stimuli. [24]

Sentencing recommendations. In federal courts, the sentencing phase calls for psychiatric expertise on the question of whether the convicted person's actions were the product of a mental disease or defect (a version of diminished capacity). In state courts a second question may be added -- the prediction of the future course of the person's mental disorder. This question, often asked in cases involving capital punishment or pretrial detention, cannot be answered on the basis of hypothetical questions or statistical prediction alone. Rather, it requires a thorough forensic evaluation from a clinically informed viewpoint, involving direct examination of the subject, review of corroborative material, and reflection against the background of one's experience.

Competence to make contracts and wills. Prior psychiatric illness and treatment or a prior voluntary conservatorship does not prove present incompetence. [49,53] Conversely, one may look and sound competent, but be selectively incompetent when it comes to safeguarding one's financial well-being. [41] In the case of a man who had sold his share of a business to his partners at a disadvantage to himself, a forensic evaluation revealed that the man, while able to understand cognitively the risks and benefits of the transaction, had been too disabled by physical illness to appreciate the full implications of what he was doing. A settlement was reached on the grounds that his partners had had a fiduciary obligation not to exploit his condition.

Workers' compensation. A psychiatric diagnosis neither excludes nor necessitates the granting of workers' compensation. Compensation is based on disability, not diagnosis, and is context-dependent -- i.e., related to a person's ability to function in a particular job.

Medical malpractice. In addition to the assessment of informed consent and the decision-making process (discussed above), perhaps the major theme for forensic psychiatric analysis in malpractice litigation is magical thinking, which involves the wish for certainty and the attribution of omniscience and omnipotence to physicians. This way of thinking, which some attorneys, judges, and juries share with depressed individuals, [15] leads to simplistic conclusions. At one extreme, the doctor can do no wrong; at the other, a tragic outcome signifies that the doctor must have done something wrong.

The Changing Landscape of Forensic Practice

Two of the substantive areas discussed above -- Post-Traumatic Stress Disorder [100] and sexual abuse in professional relationships [7,31,39] -- represent relatively new and rapidly growing foci of forensic psychiatric practice. The following issues likewise are beginning to make substantial claims on the attention of forensic specialists (or can be expected to do so in the near future):

Addiction and free choice. The question of whether compulsive behavior amounts to a form of diminished capacity must be evaluated on a case-by-case basis and with an eye to the governing precedents or statutes in different jurisdictions. How much choice does a person have in deciding to drink, smoke, or take drugs? Is the addicted person ruled by an irresistible impulse? These questions arise not only in connection with criminal responsibility, but also in civil proceedings -- for example, in lawsuits seeking compensation from tobacco companies for illness and death caused by smoking.

White-collar crime. White-collar crime traditionally has been considered out of bounds for psychiatric input because complex planning and concealment make a prima facie case for the perpetrator's competence. However, those two areas may function merely as compartments of competence, while the mental state's executive functions are driven by psychosis, depression, or undue influence. In such cases, even "anti-psychiatry" judges who in theory are reluctant to set precedent by applying diminished capacity in theory may in practice exercise the little discretion available to them in interpreting sentencing guidelines with fairness and compassion.

Sexual harassment. The forensic psychiatrist contributes to the disposition of sexual harassment claims in two ways. The first is by assessing the credibility of witnesses, which may be impugned by a preexisting psychiatric condition or enhanced by prior success in treatment. When a possible false claim is at issue, the forensic expert can confront both parties with alternate scenarios and evaluate their responses. [39] The second stage is the determination of damages, which may be affected by the effects of prior emotional vulnerability or hypersensitivity.

The Americans with Disabilities Act. As the Americans with Disabilities Act (ADA) goes into effect, a new area of workplace discrimination is being opened up for negotiation and adjudication. As in the assessment of an individual's future dangerousness, psychiatrists' predictions about possible harms in the workplace are not generalized and hypothetical, but individualized. That is, they are based on an assessment of particular disabilities in the context of a person's overall condition as well as the requirements of the job in question. Specific competencies must be considered, particularly the competence to communicate a need for assistance. In licensing hearings (e.g., for physicians or pilots), the assumption that past disability (typically drug or alcohol abuse) constitutes grounds for automatic disqualification is unwarranted and may violate the ADA. This is an area in which forensic psychiatrists can often be consulted proactively, to optimize working conditions or mediate disputes, in a manner analogous to risk management or settlement mediation.

Product liability. The forensic psychiatrist's expertise in decision making (medical and otherwise) and informed consent lends itself to reviewing warning labels and package inserts with an understanding of how people actually make choices concerning products ranging from pharmaceuticals to cigarettes to firearms. Liability depends on whether the person had the capacity to assume the risk of using the product, which is a version of informed consent. An emerging area of concern is the age at which children or adolescents are competent to assume the risks associated with various products or "attractive nuisances" (e.g., toys) in their environment.

The role of the expert witness in such cases was simultaneously circumscribed and legitimized by the highly publicized Supreme Court ruling in the case of the drug Bendectin. In giving judges discretion to disallow expert testimony on scientific grounds, this ruling also, in effect, gave judges leeway to accept varieties of scientific understanding that might not necessarily predominate in the experts' own particular scientific communities. [23,36]

Fear of illness. One variant of product liability involves not the feared illness itself, but the emotional and physical consequences of the fear of the illness. In such cases, the defective product or environmental hazard produces a real or perceived risk that itself becomes a stressor, triggering physical and emotional suffering that can at times add up to a psychiatric illness such as adjustment disorder, PTSD, or phobia. The cases involving silicone breast implants, fear of contracting the AIDS virus from defective needle-disposal containers or gloves, and carcinogenic industrial waste [11] raise the specter of product liability writ large, as people fear a 'ticking time bomb' of illness and disability emerging after an extended exposure or incubation period.

Although the courts have not looked with favor on lawsuits based on the mere risk of future illness, some courts have allowed plaintiffs to collect damages for the actual present effects of fear and anxiety and the costs of medical monitoring even before a feared disease manifests itself. [33] In the case of fear of AIDS infection secondary to an allegedly defective needle-disposal container, one key question is for how long (six months or two years) someone who is seronegative can "reasonably" fear conversion. Another major issue is the nature and extent of preexisting risk aversion and coping mechanisms that may magnify the fear of AIDS and turn it, once triggered, into an ongoing obsession.


The forensic specialist's expertise lies in mapping the interaction of cognitive, affective, and physiological processes as they affect and are affected by the choices people make, and in connecting this analysis with laws, legal criteria, and other standards. More simply and broadly, it lies in describing both the unique and the universal characteristics of any human being and distinguishing clearly between the two. This is a psychiatrist who conducts in a different arena, and from a more critical perspective, but for the same larger humane purpose, the in-depth journey into the self and its response to stress that is the essence of clinical practice.


The authors gratefully acknowledge Professor Thomas Gutheil's careful reading of a draft of this chapter, Professor Alan Stone's essential contributions to the foundations here examined, and Professor Alan Dershowitz's welcoming one of the authors (HJB) to his course on criminal law at Harvard Law School.


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