Forensic Psychiatry - Criminal

Criminal law regulates behavior by punishing those who transgress the penal code.  A crime is a union of actus reus (a voluntary act consciously performed) and mens rea (a guilty mind).  The criminal law seeks to punish the morally blameworthy.  All crimes are defined. There are two levels of crime depending on punishment: misdemeanors and felonies. There are two types of crimes: general intent and specific intent.  Sometimes a single actus can be associated with several possible mens, thus several different crimes from the same basic act- each called a lesser included offense.

Competency to Stand Trial

The current test of competency to stand trial was set by the Supreme Court in U.S. vs. Dusky: "...whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ‑ and whether he has a rational as well as a factual understanding of the proceedings against him."  Competency questions apply to each step in the legal process.   

The following factors are considered when the psychiatrist evaluates trial competency:

 1   Ability to appraise the legal defenses available,

 2   Level of unmanageable behavior,

 3   Quality of relating to attorney,

 4   Planning legal strategy,

 5   Appraisal of roles of participants in legal proceedings,

 6   Understanding of court procedure,

 7   Appreciation of the charges,

 8   Appreciation of range and nature of possible penalties,

 9   Ability to appraise the likely outcomes,

10 Capacity to disclose pertinent facts about offense,

11 Capacity to challenge prosecution witnesses

12 Capacity to testify relevantly.

13 Self-serving versus self-defeating motivation.

14 Medication effects: on defendant, on jury.

Insanity (NGRI)

Insanity reflects a societal determination that some mentally ill wrongdoers should not be punished.  The legal test of insanity has changed over the past three hundred years.  Changes have resulted more from social influences than from advances in science.  Insanity pleas are rarely successful.  This reflects a general community belief that mental disease motivates but does not excuse, that the bad can fake mad, and that the mentally ill are a threat to the community.  The forensic examination in insanity cases can be elaborate and painstaking.  In the end, though, it may be less the expert's final conclusion that is important than his or her credible description and explanation of the defendant's mental state at the time of the crime.   AAPL Guidelines for Conduct of Insanity Examination (PDF format)

Historical Definitions of Insanity

1 Wild Beast

2 Irresistible Impulse

3 Durham “Product" Test.

4 Mcnaghten Test: "such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or if he did know it, that he did not know what he was doing was wrong."

5 American Law Institute (ALI) Test: "(1) ...lacks substantial capacity ... to appreciate wrongfulness of conduct or to conform conduct to the requirements of the law.  (2) "...not ... manifested ... by repeated criminal or otherwise anti‑social conduct."

6 Post Hinckley: Federal test is Modified ALI (without volitional prong).

7 Guilty But Mentally Ill (GBMI)

Diminished Capacity

Defendant claims no ability to formulate a specific mental element required for the crime charged. No longer good law in California. 

Unconsciousness

Unconsciousness attacks the actus reus and thus negates the existence of the crime.  A claim of unconsciousness is made when the act occurs in a convulsive, post-trauma, hypoglycemic, or dissociated mental state.  Proof requires behavior which is (1) unpremeditated and sudden; (2) out of character; (3) associated with a "cause" or an environmental cue; (4) veiled in amnesia; (5) lacking in current motivation; (6) a fortuitous or accidental choice of victim. 

Competency to Be Executed

The Supreme Court has held that there is a competency standard to be met before someone sentenced to death may be executed.  The question arises; therefore, may a convict be forcefully medicated to “cure” his incompetence to die?  One Court referred to execution as a “litigation side effect” of treatment.  

Mens Rea Defenses and Intoxication

Robert Weinstock, MD

Drug and alcohol intoxication, since the mid 1800's, is not itself a defense to a crime. Nonetheless, in many jurisdictions in the United States, drug and alcohol intoxication can be used to raise reasonable doubt about a specific intent that is an integral element of some crimes. All crimes, except strict liability crimes, necessitate both an act (actus reus) and criminal intent (mens rea). If there is no mens rea such as in an accident, an individual cannot be found guilty of a crime requiring criminal intent.

Mens rea defenses are partial defenses that can negate a specific intent and thereby result in a defendant being found guilty of a lesser-included crime. In those jurisdictions that permit such defenses, drug and alcohol intoxication can be used as evidence to raise reasonable doubt about a required specific intent. In some states, such evidence is used affirmatively to negate a required specific intent, and the defense is called "extreme emotional disturbance."

Since the mid 1900's, originally in California and later in many other states, mental illness wasalso included as a way to negate specific intent. The defense became known as diminished capacity and referred to a defendant's capacity to have the specific intent required for a crime. If a diminished capacity defense is successful, the defendant is found guilty of a lesser included crime, thereby resulting in a lesser sentence.

Intoxication itself is no excuse for committing a crime. Since ancient times debate has existed as to whether intoxication should be partially excusing or whether it should increase the gravity of the crime. Saint Thomas Aquinas believed that intoxication should be partially excusing. In contrast, Aristotle thought the penalty should be doubled, since in addition to the crime, the intoxicated individual was setting a bad example for others.

Forensic psychiatrist Bernard Diamond was influential in the development of the expanded definitions of malice and premeditation as well as the inclusion of mental illness in diminished capacity as a basis in addition to drug and alcohol intoxication for negating specific intent. The mental illness could be of a lesser nature than that required for an insanity defense. Stephen Morse in California was instrumental in the dismantling of the expanded definitions of premeditation and malice and a reduction in the psychiatrist's role in such cases. The new defense of diminished actuality often still is loosely called diminished capacity.

Mens rea defenses frequently are used in murder trials. According to English common law, the presence of malice distinguishes murder from manslaughter. Murder is a specific intent crime, so drug use or intoxication can be used to raise reasonable doubt about malice, premeditation and deliberation. In those states with degrees of murder, premeditation and deliberation usually distinguish first from second degree murder with malice distinguishing second degree murder from manslaughter. The states of mind of premeditation and deliberation can be negated by voluntary intoxication. In some states, the extreme emotional disturbance defense (an affirmative defense) can reduce murder to manslaughter by negating the specific intents required for murder.

Malingering

David Bienenfeld, MD eMedicine Journal, January 10 2002, Volume 3, Number 1

Malingering is intentional production of false or exaggerated symptoms motivated by external incentives, such as obtaining compensation or drugs, avoiding work or military duty, or evading criminal prosecution. It is not considered a mental illness. In the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), malingering receives a V code as one of the other conditions that may be a focus of clinical attention. Malingering is deliberate behavior for a known external purpose.

• Prolonged interview and examination of a person suspected of a malingering disorder may induce fatigue and diminish the ability of the person who is malingering to maintain the deception. Rapid firing of questions increases the likelihood of contradictory or inconsistent responses. Asking leading questions may induce the person to endorse symptoms of a different illness. Questions about improbable symptoms may yield positive responses. However, because some of these techniques may induce similar responses in some patients with genuine psychiatric disorders, exercise caution in reaching a conclusion of malingering.

• Persons malingering psychotic disorders often exaggerate hallucinations and delusions but cannot mimic formal thought disorders. They usually cannot feign blunted affect, concrete thinking, or impaired interpersonal relatedness. They frequently assume that dense amnesia and disorientation are features of psychosis. It should be noted that these descriptions also may apply to some patients with genuine psychiatric disorders. For example, individuals with a delusional disorder can have unshakable beliefs and bizarre ideas without formal thought disorder or affective blunting.

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