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.
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