Category Archives: Law and Culture

The Scottsboro Boys

In 1931, in the Scottsboro case, nine Black boys were accused of raping two Southern women in the state of Alabama. The boys were arrested and the National Guard was called out to protect the defendants while they were being held in jail on rape charges. An article written by The New York Times stated that the guardsmen had prevented a mass lynching. The local paper, Scottsboro Progressive Age, and citizens, considered the evidence conclusive with regard to their quilt.

Judge Hawkins, the local judge, assigned seven members of the Scottsboro Bar to represent the Black boys, and only one accepted the position. Judge Hawking was a member of the local community, and it was believed that his objective was to prevent a lynching, and not necessarily to sort out the truth.

The defendant’s attorney, Stephen Roddy, who was not a criminal law attorney, opened the defense case with a petition for a change of venue, based on the inflammatory news stories in the Jackson County Sentinel, and the Scottsboro Progressive Age publication, that Sheriff M. L. Wann had asked for the National Guardsmen.

The State responded by recognizing there was some evidence that the stories in the local papers affected the public opinion. However, the State chose not to grant a change of venue, nor was a mistrial granted based on the circus-like atmosphere in the courtroom during the trial. The eight Scottsboro boys were found guilty, and sentence to be handed down.

At the time of the trial the International Labor Defense of New York City demanded a change of venue, and declared that Judge Hawkins (who presided at the trial) would be held responsible for the boys’ fate. The Communist party, it was believed, used this case to gain the support of the Blacks for their own cause.

The National Association for the Advancement of Colored People (NAACP), who had initially been interested in this case because it was receiving national attention, withdrew their support by the time of the appeal. This allowed the International Labor Defense (ILD) to use the case for its own cause. Walter White (a spokesman for Blacks in the United States for almost a quarter of a century), of the NAACP, and Clarence Darrow (a lawyer and leading member of the American Civil Liberties Union), were credited with the success the case received at the appeal’s stage.

On appeal to the Alabama Supreme Court, the defense argued 1) the inadequacy of the defense counsel, 2) the fact that the boys’ were illiterate and 3) they never consulted with an attorney. Judge Hawkins settled the issues of the defense attorney, but ignored the fact that the boys’ had received inadequate counsel, and that Blacks were systematically excluded from Alabama’s juries.

When discussing the issue of mob influence at the trial, Judge Hawkins cited the Leo Frank case (an American man who became the only known Jew in history to be lynched on American soil), and said that Justice Holmes (American jurist who served on the Supreme Court of the United States from 1902 to 1932), might have had a different decision of he had lived a little closer to the South.

The Alabama Supreme Court found that they would uphold the decision of the trial court, except for one of the defendants, Eugene Wilson, because he was a juvenile at the time of trial.

Despite their outspoken disdain for the legal process, the ILD officials retained Walter Pollak, one of the nation’s most eminent constitutional attorneys. After a preliminary hearing on May 27, 1923, the Supreme Court agreed to hear the case. The arguments delivered were substantially the same as before the Alabama court with one exception: Attorney Pollak stressed the jury question, contending that there had not been any Blacks on the Jackson County juries since the reconstruction.

The reconstruction involved policies implemented between 1863 and 1877 when the nation focused on winning the Civil War, abolishing slavery, defeating the Confederacy, and reconstructing the nation and the Constitution. The Supreme Court had restricted itself to one question, and Justice Sutherland (appointed to the United States Supreme Court) went on to say, that the issue was whether the defendants were in substance, denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment. However, there was a crucial question: What constitutional peg would support this possible decision?

The solution was the due process clause of the Fourteenth amendment. In Hurtado v. California, the Supreme Court had denied that the defendant’s right to due process in the state court included the first eight Amendments to the Constitution. In the same decision, however, the court described due process in extremely vague terms.

It was that the law of the land in each State, which derives its authority for the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice, which lie at the base of all our civil political institutions. Due process required no particular form. The people could institute new methods of procedures so long as these were in the furtherance of the public good.

Justice Sutherland declared that the “right to have counsel heard had been so accepted by the States that it had become an integral part of due process”. He concluded that the “right to counsel when necessary is the logical consequence from the constitutional right to be heard by counsel.” The cases were reversed and remanded to the lower court.

What the court was saying under due process, is that one of those aspects of afforded liberty as part of Anglo-American criminal justice, (from the prospective of 1932), is that individuals were entitled to the right of effective counsel on the state level in capital cases. Justice Sutherland also applied some of the Six Amendment rights to the States, because the court picks and chooses particular rights.

It does not suggest that every criminal case on the State level, or every felony, has the right to counsel. The Sixth Amendment to the United States Constitution is the part of the United States Bill of Rights which sets forth rights related to criminal prosecutions in federal courts. The Supreme Court has applied the protections of this amendment to the states through the Due Process Clause of the Fourteenth Amendment.

Another interesting point is that only once at the early part of the decision, does Justice Sutherland refer to the group as Negroes, and that is the only racial reference in the decision. The court was going out of its way to sort of slap the Southern court’s hand, but was not giving them a fully obvious scolding. On the racial question, regarding the jurors being selective exclusively from the White community, the court stated that it did not have to approach that question, because it was going to rest its decision on the due process right to counsel.

Historically speaking, the South had some of the best legal aid support in the nineteenth century. However by the nineteen-twenties and thirties, what you had was the practice of each state determining its own rules, and the South having weak legal aid organizations.

In the urban North and California, you had the beginning of modern Legal Aid offices. The practice that went on, of Judge Hawking appointing attorneys from the Bar, was not all that unusual, and the quality of criminal lawyers at that time was believed not that good. Also, what the court stated is that a defendant should have good counsel in capital cases.

When we look at these decisions directed toward the South, it is one thing for the court to say this, and another for it to implement the decision. Thus, hostility developed between the Southern judiciary, and the Supreme Court. It is not all that clear what affect it had on local Southern cases, since not all of the cases reach the Supreme Court, and the NAACP and IDF could not handle every case.

Finally, there had been an American Civil Liberties Union report that both victims were prostitutes and lived in the Black part of town. The fact that their clients were universal was never published by the Southern newspapers because it was inconsistent with the cultural Southern notions that dedicated that era.

This went along with the feeling in the South that Blacks were less passive and more incline to violent or aggressive. This was further enhanced by a sense of hostility by the Supreme Court and the Northerners, the idea that the communists were in the South to organize the Blacks and laborers, and the general hostility towards the union tradition.

By: Peter Sabbagh

The Insanity Defense – Part 3:Loyalty,Truth and Justice in the Psychiatrist-Defendant Relationship?

In part two I explored the ethical relationship between the psychiatrist and the court system. Now I will revisit the hired gun side of the psychiatrist, defendant, and attorney relationship.

If a psychiatrist has been hired by the defense, should the psychiatrist say what the defense wants him to? Should the defense psychiatrist accept the role of a hired gun? For instance, a doctor (let us call the Doctor A), might say he has been hired by the defense, and knows the prosecution will find a psychiatrist (whom we’ll call Doctor B) who doesn’t believe the insanity defense is applicable in this case.

Doctor B will say the defense was totally responsible. Doctor A’s job is to be an advocate for the defense because he is a hired gun; therefore his job is to give the best case he can to say the defendant was not responsible at the time of the crime. Does that mean he has to lie or twist the facts? He is there as an advocate for the defendant, and if he has experience as a hired gun for defense cases, he knows why he has been hired and what is expected of him. Or, should he lean towards a higher form of truth, realizing he is there to serve justice? If he finds he believed the defendant was sane, and knew what he was doing at the time of the crime, should he then say that in court?

This is a conflicting decision to make, as it throws the questions of loyalty verses truth and justice against each other. When a psychiatrist goes into the courtroom, he swears to tell the truth, the whole truth, and nothing but the truth. The court system however, does not always allow the truth to come out. He is obligated to answer the questions that are posed to him. If someone does not ask him the right questions, it is out of order for him to volunteer information the court ought to know in order to make a reasonable and just decision. He could be found in contempt of court for presenting information no one has asked to comment on, but that happens to be the most important for the decision.

Given this situation, should the psychiatrist or the expert witness wash their hands of the case, knowing the truth may not be presented? Would it be ethical for the defense psychiatrist, after he has testified on his client’s behalf, to offer a statement to the court, which would help the prosecution’s case because he felt there were some important issues that should be brought out?

In this case, one can only file a “friend of the court” petition with the consent of the parties being defended. It would be doubtful that the defense would consent to having an “off the record” supplementary statement filed by the psychiatrist, saying in effect that while he testified for the defense, he personally believes the defendant is guilty. This would not normally be allowed in court. The courts are mechanisms for dispute resolution and follow their own rules. Thus, injustice is sometimes what comes out of the court, and both the prosecution and the defense would likely agree with this point.

The public may have a jaundiced view of the insanity defense. Sometimes political pressure helps create an atmosphere where the best and right decision cannot be made. On many occasions a defendant will decide not to accept an insanity defense or other psychiatric defense for fear he will have to spend more time in an institution than he would if he pled guilty to a crime.

Many people would agree that given the choice of pleading guilty or walking out of the courtroom on probation, or pleading innocent and running the risk of going to jail, it would be advisable to enter a guilty plea even though you are innocent. Experienced psychiatrists are aware of this when they evaluate patients who are under the belief that if they are innocent, they should plead innocent. Part of the psychiatrist’s job is to explain to the attorneys that the defendant may not be mentally ill – they just don’t understand the court system.

We regularly read, regarding ethical issues, that it is unethical for a lawyer to enter a guilty plea on behalf of his client who is incompetent. Likewise, it is unethical for a lawyer to enter a guilty plea for his client if he knows his client is not guilty. In reality, though, if somebody questions his client’s competence, he will be obligated to have his client spend 30 days in confinement, awaiting a determination of whether he is competent. If he is found incompetent, he will spend 90 days in a state hospital waiting to be released. If however, he enters a guilty plea to begin with, regardless of the fact that he is incompetent to enter a guilty plea, the client on many occasions will walk out the same day.

One could question why the general public complains about the insanity defense undermining public justice, when what often happens is the undermining of justice in the American legal system.

By: Peter Sabbagh

Willie Francis: Twice Put In Jeopardy

Willie Francis was convicted of murder in 1945 and sentenced to death. The following year, on May 3, 1946, he was strapped to the electric chair. The executioner threw the switch, but Francis was not killed. Instead, he got a jolt only strong enough to scare him half to death. The prison authorities thereupon unstrapped him and returned him to his cell.

His lawyers, in a case that went to the Supreme Court, argued that a second attempt to execute him would violate constitutional prohibitions against cruel and unusual punishment and against double jeopardy. But they lost (Louisiana ex rel. Francis v. Resweber, 1947), and Francis was executed by Louisiana on a second attempt.

The decision had been made by the Supreme Court in spite of the fact that in the lower court there had been no cross-examination, no defense, and no ballistics report, as all of the ballistic evidence had been lost. It is interesting and important to note that the Supreme Court rejected the argument based on the non-existent record of the trial court’s proceedings. How can one present an appeal when there is no record?

In response to the argument of cruel and unusual punishment, the Supreme Court found that it would accept the use of due process standards. (Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law of the land, instead of respecting merely some or most of those legal rights.) However, when applying the Eighth Amendment, which prohibits the federal government from imposing excessive bail, excessive fines, or cruel and unusual punishments, one can still find that there was no cruel and unjust punishment in the execution, because there was a mistake — what was characterized as an accident, rather than a purposeful act. In doing so the Court suggested that if it had been a purposeful act, then it might be deemed as cruel and unusual punishment.

As for the double jeopardy argument, it too was rejected by the United States Supreme Court. Double jeopardy is a procedural defense. In many countries, such as the United States, Canada, Mexico, and India, there is a constitutional right that prevents a defendant from being tried twice for the same crime on the same set of facts. In this case the issue was whether the second execution procedure was a second punishment. The Supreme Court ruled that it was the same punishment.

According to the law today, the double jeopardy clause states that if an individual is acquitted of murder in a federal jurisdiction, the individual cannot be tried again for that murder either in federal or state court. However, as United States law stood at that time, a state could again try an individual for murder, under state court jurisdiction, because at that point the Fifth Amendment’s double jeopardy clause didn’t apply to the states. (The Fifth Amendment of the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure).

This case stands for the proposition that the accidental use of fatal force that does not by itself result in an execution in the initial instance is not cruel and unjust punishment.

It would be fair to say that Justice Felix Frankfurter (Associate Justice of the United States Supreme Court) exercised self-restraint in the Willie Francis case. Frankfurter was basically against capital punishment, but he ruled in favor of the execution in this case. Frankfurter believed that the Fourteenth Amendment, which made important statements about civil rights, immigration, and personal liberties, did not disturb the distribution of power between the states and the central government. Rather, the amendment restricted the unlimited freedom which the states had in making and enforcing their criminal laws. As Frankfurter contended, the amendment was not intended to apply the federal Bill of Rights, which prohibits the federal government from depriving any person of life, liberty, or property without due process of law, to the several states. Similarly, he felt that the Fourteenth Amendment did not withdraw the responsibility of criminal justice from the states and make it instead the business of the federal judiciary.

Justice Black (another Associate Justice of the United States Supreme Court) agreed, recognizing that the lower court’s interpretation of the Fourteenth Amendment’s due process clause had created two different standards of constitutional protection. For instance, there could be an action that would violate the double jeopardy or cruel and unusual punishment prohibitions when performed by the federal government, but which when performed by the state would not be a denial of due process. This made no sense to Justice Black. Why should there be a double standard?

Francis’s attorneys, Skelly Wright and Bertand DeBlanc, shared Black’s concerns in the development of the Francis appeal. The attorneys argued in their brief that a second attempt to carry out the death sentence would violate the Fifth Amendment prohibition. They argued against allowing any person to be twice put in jeopardy of life or limb for the same offense. They argued that through extension of the due process clause of the Fourteenth Amendment, the Fifth Amendment should be held binding in Louisiana. Similarly they argued that cruel and unjust punishment was proscribed by the Eighth Amendment.

Among the public, Justice Frankfurter was a controversial figure. Some admired him, while others disliked him and thought him a hypocrite for ruling in favor of the execution despite his opposition to the death penalty. In any case he was a potent figure in the Willie Francis case, and if one takes the ennobling view of him, one can perceive him balancing heart and mind, and weighing his personal conscience against his duty to the rule of law.   By: Peter Sabbagh

The Insanity Defense – Part 2: Who Has The Defendant’s Best Interests at Heart — Court, Psychiatrist, Or Attorney?

In Part 1 we explored the practical role of psychiatrists in criminal trials. Now we turn to the ethical side of the psychiatrist-defendant relationship.

There is an ethical side to the “hired gun” situation. What happens if the psychiatrist agrees to evaluate and testify for the defendant, but after evaluating the defendant the psychiatrist forms the opinion that at the time of the crime the patient knew what he or she were doing and was in control? In the doctor’s opinion, then, the defendant was guilty, and responsible for his actions. Can the defendant now say that he doesn’t want this information to be used in court?

In reality the defense attorney’s and the psychiatrist’s questioning generally goes something like this. The defendant will make the first move. The defense attorney will call a psychiatrist they know, who may be someone good or not so good. They may even be part of the pool (hired guns) I referred to earlier. This doctor will be asked to examine the client who is facing criminal charges. The less knowledgeable psychiatrist might decide right at that moment either to evaluate the defendant or not. The more knowledgeable one will first ask what the defense wants the defendant examined for, and what is the exact psychiatric legal issue they want to have explored.

The inexperienced attorney may not be prepared for that kind of question, and may ask the doctor what they mean. The doctor may say that the defense attorney is raising the question as to whether or not, at the time of the alleged event, the defendant was criminally responsible, or was acting under “extreme emotional disturbance.” Extreme emotional disturbance (“EED”) generally is interpreted to mean the emotional state of an individual who 1) has no mental disease or defect that affects accountability; 2) is exposed to an extremely unusual and overwhelming stress; and 3) has an extreme emotional reaction to it, as a result of which there is a loss of self control, and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions.  In short, if a person has had time to cool down and then act on their intentions to harm someone, this would not be EED.

The doctor wants to know if the defense is trying to inquire as to whether or not, when the police read the defendant his or her Miranda Rights, the defendant was competent to understand those rights, or competent to make the confession that was given.  A Miranda Right is a warning given by police to criminal suspects in police custody, or in a custodial situation, before asking guilt-seeking questions relating to the commission of a crime. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her “Miranda rights” and made a knowing, intelligent, and voluntary waiver of those rights.

Miranda warnings developed out of the Ernesto Miranda case (1962), in which a rape suspect was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self incrimination or his Sixth Amendment right to counsel.

Is the doctor concerned with whether the defendant is competent to stand trial at the moment? Is the doctor concerned with whether the defendant is competent to abide by the terms of bail and should be bailed out, or should remain in jail? Is the doctor concerned that at this time the defendant might be a danger to the community if released?

The Ehrlich case, for example, involved a mentally ill defendant in New York City. The defendant was found not responsible by reason of mental disease and defect after he killed his mother. He then cut off her head, placed it on her bed, and combed her hair so she would look neat when the police arrived. While he was in the Manhattan Psychiatric Center, members of his family complained that he was not being treated properly, and should be allowed to attend some education classes. The doctors allowed him to leave the locked ward, and he went to attend a class. As soon as he entered the class room and the attendants left, he walked out of the room and the hospital. While out, he threatened members of his family and others, and was out on the street for approximately nine days before he was rehospitalized.

The Ehrlich case and other like it are examples of the tremendous responsibility psychiatric medical professionals take on when they become involved in criminal psychiatric evaluations for the court system.

If there is a capital punishment issue (crimes that can result in a death penalty), the reason for the psychiatric examination may be to evaluate whether the defendant is competent to be executed. The common notion of the insanity defense is that there is a straightforward question of whether the defendant was responsible at the time of the crime. However, in fact there are many important issues at hand. The defendant could have been responsible at the time, and then became mentally ill because of the police arrest, and hence did not understand the Miranda warnings. The kernel of the issue is what was the mental state of the defendant at the time of the crime.

Let’s take a moment to explore the psychiatric evaluation process and the amount of time spent on each patient. In America we have a multi-layered system which may unfortunately translate into “you get what you pay for.” If you are being defended by a public defender (Legal Aid Society), they have limited funds. It is generally believed in the medical community that most doctors will not spend less than 45 minutes at the very minimum on an insanity defense evaluation (described as a psychiatric hour). This is because psychiatrists providing insanity defense evaluations need sufficient time to properly gather information; it also helps the doctor to maintain credibility in court.

Because there are wide discrepancies in how psychiatric evaluations are done, many experts believe the best solution is to look for whether or not there was any other evidence, independent of the defendant’s or police testimony. This additional evidence may help reveal what the defendant’s mental state was at the time of the alleged crime. Were there eyewitnesses? Had the person had other psychiatric help prior to the incident? It is important to mention that this type of evaluation is not confidential once a defendant chooses an insanity defense in a criminal case.

Once the event has occurred, the alleged criminal has an interest in presenting a picture that is consistent with his own interests, so mental data is important. For example, most people would ask the defendant how he or she was feeling at the time of the alleged crime. The defendant would probably give a long, drawn-out story about how he was feeling, consistent with whatever position he or she wanted to defend.

Consider this ethical dilemma. Suppose the defense psychiatrist discovers that a patient is malingering (a medical and psychological term that refers to fabricating or exaggerating the symptoms of mental or physical disorders). Should the doctor get off the case, remain as the advocate for the defendant, or go to the prosecution with information on the defendant that could work to the prosecution’s advantage?

Can a defense psychiatrist who has conducted an evaluation go over to the prosecution? The way it normally works is that the prosecution might know whether or not the psychiatrist has visited a defendant in jail. If three psychiatrists visited a defendant in jail, and the names of only two are advanced by the defense to support the claim of “not responsible by reason of mental disease or defect,” it is reasonable for the prosecutor to assume that the third psychiatrist found something that is not going to be of use to the defense; otherwise his or her name would be advanced too. The prosecutor then moves to subpoena the third psychiatrist, whose name has not been advanced by the defense. Thus he can be used as the prosecution’s witness. The psychiatrist now can agree to aid the prosecution, as it is fair game if the judge allows his testimony to be entered into court as evidence.

Now let’s take the above situation a little further. Suppose a psychiatrist is hired by the court to conduct an evaluation. There are issues of advocacy (the pursuit of influencing outcomes), when the court psychiatrist can also be the treating psychiatrist. For example, while the court psychiatrist is doing an evaluation, he or she may also be doing a scientific probe; information thus gained does not hold the kind of doctor-patient relationship of loyalty towards the patient. The psychiatrist visits the patient and explains that though he may sound like a psychiatrist and look like a psychiatrist, in this capacity he is not the patient’s doctor. What discussions go on between them will not be bound by the oath of confidentially. It will be reported to the court. At this stage a sort of distancing is suppose to take place. Often, however, it turns out that the court psychiatrist may be working as an evaluator, but is also treating the patient. This brings up the issue of whether the doctor should be treating the patient both as an evaluator and as a treating doctor, because of the issue of conflicting loyalties.

Another interesting issue concerns separate case records. This is when you have a corrections unit (a facility handling adult probation and parole matters and sometimes juvenile aftercare supervision cases from the Department of Corrections), where there is a treating psychiatrist(s), and an evaluating psychiatrist(s) on the unit. In some situations the same case record may be used. This means that as a patient, the defendant has given varied amounts of information to their treating psychiatrist that he or she would not want given to the courts. Some units try to solve this problem by having one case record presented by the evaluating psychiatrist, which goes to the courts. The evaluating psychiatrist and the court cannot see the second case record, prepared by the treating psychiatrist, which only goes towards the patient’s treatment, to make sure that there is no conflict (fact sharing between records).

Part 3 of this series will return to the hired gun issue: if the psychiatrist has been hired by the defense, should the psychiatrist say what the defense wants him to?

By: Peter Sabbagh

The Insanity Defense – Part 1: Can Professions With Different Agendas Effectively Work Together?

This article is not specifically intended for legal and psychiatric professionals only, although there is legal and psychiatric terminology used throughout the article.

What exactly is the insanity defense? First a person must be found to have actually committed a criminal act. If an individual did not commit a crime, then they would not be guilty of a crime. Next, a person must have a mental disease or defect; a psychological or behavioral pattern thought to cause distress or disability that is not expected as part of normal development or culture.

Finally, a mental disease has to be found at the time of the crime(s), not at the time of the trial. If a mental disease is found then they may have lacked the capacity to know or appreciate either the nature or consequences of their criminal conduct, or that it was wrong.

It has been a tradition in western law, or ethics, that an individual should not be held morally blameworthy over something they had no control over. For, if a piece of chalk were to break, one would not punish it or hold it morally blame worthy because it was simply following the laws of physics.

Further, there is a presumption in American law that an individual will not be punished unless they are responsible. In order for this to be determined in a case involving psychiatric testimony (a medical professional’s account of an event or state of affairs), interplay develops between the psychiatrist, lawyer, jury and criminal justice system. Sometimes these four elements play different roles.

On one hand, a psychiatrist may be working for the defense or the courts on the basis of evaluating a defendant. They may also be working for prosecution. In yet another situation a defendant may be both a patient and an individual who has been brought up on charges. At this point a multi-layered interaction involving some of the more difficult issues of law and psychiatry begin, as well as, the issue of double agency. This includes two types of conflicts, or even multiple conflicts within professional obligations.

The problem first arises when a psychiatrist must be hired to support a position in an insanity defense. The prosecution may avoid hiring a doctor who will not yield the results necessary to appose a defense. For example, presume that a defendant is looking for an insanity defense in a case where they have committed a crime. A defendant then has to hire a psychiatrist who will support the position that he is not responsible for a crime.

On the other hand, the prosecution’s psychiatrist tries to show that, in fact, this is not the case, and that the individual is responsible. What is interesting is that the defendant probably has never had contact with a psychiatrist up to this point. This is because they have left the entire process up to their attorney.

Now there is the issue of the “hired gun” (a person with special knowledge or expertise), used to support a position or argument in a legal case. A good defense attorney may have a pool of psychiatrists to choose from – a group of doctors that may find some way to discover a defendant not responsible for their actions. Similarly, prosecution will also have a pool of “hired guns” that they may turn to; a psychiatrist that will more often than not say that the individual was responsible for the crime.

From the defendant’s perspective the following issues may arise: a defendant confronts their doctor and says that they would like to pursue an insanity defense. They state that a doctor is obligated by the Hippocratic Oath (an oath traditionally taken by physicians pertaining to the ethical practice of medicine), to look out for a patient’s interests and to keep them from harm. Therefore, as the defendant’s agent, and doctor, the defendant wants their doctor to testify to keep them from going to jail for life, getting the electrical chair, or from five years in prison.

If a defendant happened to be in private psychotherapy and had committed a heinous crime and then requested the doctor to aid in their defense, a doctor may avoid talking the case. A doctor may give several reasons for declining involvement.

For example, they may lack the necessary experience; it is not the sort of thing they like to get involved in; there are very big stakes involved; or a doctor may also say that providing legal testimony is outside their area of competence. All of these reasons may be true, but may not be the main reason why a doctor has declined.

If the doctor is more sophisticated (experienced with providing legal testimony), they may answer that once the mental illness issue is raised, personal issues that the defendant told him in confidence will be open to questioning at trial. A doctor may also suggest that opposing-side legal council will request that a psychiatrist take the witness stand to testify about the defendant.

The prosecutions questioning may dig deep into the patient’s disturbing fantasies, about how many times they have mishandled their children, or even what he dreams about. All these issues could greatly embarrass the defendant.

The defendant’s psychotherapist could also advise the defendant to hire a doctor who does not know so much about him so that there will be less risk of weakening his case. He could also suggest that his real job is to help the patient, and that the stress of the trial could jeopardize the caring role he had with the patient.

Similarly he may note that he can defend the defendant or care for a patient – not both. Finally the defendant’s psychotherapist could state that his involvement in the legal process could destroy years of precious therapeutic counseling, all for a few minutes of in-court testimony.

In short, some psychiatrists or therapists will not want to become involved in providing legal testimony. The reasoning behind this decision may be that the doctor is afraid of appearing in front of the courtroom. By doing this they become exposed in an alien environment and to questions from people who have nothing to gain from respecting him.

He may also be ashamed of how little he actually knows of what could be important and how much that fact would be exposed on the witness stand. Thirdly, he may be concerned that he is not going to get paid appropriately, and lastly, that he is going to be inconvenienced regarding his schedule, as he also likes what he is used to.

Part two will explore the ethical side of the psychiatrist and defendant relationship.