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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

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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.