Random Reflection on Law and Psychiatry part 1

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I have been involved as an expert witness in both civil and criminal legal proceedings. Most of my past testimony has however been in a criminal setting and primarily focused on sentencing.

I have always been a fan of the idea of the “bifurcated” trial. This means that I believe the law should determine if the  individual actually committed the crime and then later determine what to do with the perpetrator. That would eliminate the confusion surrounding interpretations of so-called “psychiatric defences.”

Psychiatrists are often “hired guns” usually for the defence to help determine the presence of insanity, automatism (dissociation defence like being clubbed on the head then killing your neighbour) or specific intent to reduce murder to manslaughter. But most of my experience relates to disposition after a finding of guilt.

There are the four principles of judicial sentencing:
a) Punishment:which “fits” the crime following the principles of an eye for an eye retributive justice.
b) Deterrence: i) specific: meaning that the sentence will cause the criminal to learn and smarten up.
ii) general: everybody else in society will come to their senses and not behave badly as justice has been done and seen to be done
c) Rehabilitation: Most psychiatrists are good with this one. And it’s where clinicians have some say but since 2/3rds of criminals are incurable sociopaths it is often oversold. In North America the public pendulum swings between treatment and punishment philosophies
d) Protection of the public.The most crucial in my view. This was the deciding factor in the case described below.

Deterrence fails as career criminals generally don’t learn from experience as they are hedonistic and present oriented. Furthermore crimes that occur during fits of passion cannot be deterred due to higher brain shutdown-people don’t think of consequences when enraged.

Psychiatry and the law have had a long and often stormy marriage. Both are concerned with abnormal behaviour and morality, but don’t always speak the same language. The law is adversarial. Psychiatry attempts at least to be science.

My experience with lawyers and legality at present extends some 35 years in three countries. I do like lawyers in small doses but on their turf in the witness stand if you are of weak constitution you can be reduced with words to a shadow of your former greatness. A few lame lawyer jokes that make the point as they specialize in intimidating ad hominems and quirky sentence structure….

18773507201_782b430258_z                                                                            Cornering the Witness

Q.Is it more true than not true doctor that it is probable that your patient knew the nature and quality of the act, as applies to the principle of specific intent?
A. Of course

Q. Lawyer: How many times has your patient committed suicide?
A. Could you rephrase the question?

Q. Lawyer: Now doctor, isn’t it true that when a person dies in his sleep, he doesn’t know about it until the next morning?
A: Yes that makes sense

Lawyer: is this a photo of you with the patient?
Lawyer: (Shows me a picture) That’s You?
A.Yes.
Lawyer: And you where present when the picture was taken ?
A. good probability

One of the first major cases I had the misfortune of dealing with back in 1981 centred around the definition of a dangerous offender. The culprit wandered around an Aboriginal community with a “razor-sharp” cross-bow set threatening anyone with the slightest provocation though he never actually followed through. So uttering threats was his habitual offense…..

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The legislation here is that you can lock someone up, not for a crime they committed but for one they might commit. This presupposes that psychiatrists have  a crystal ball and can predict future dangerousness. Well they can’t. Not any better than anybody else. Though it is clear that the best indicator of future behaviour is past dangerous conduct.

My position centered around whether he should be incarcerated “forever”  based on the probability  that he would hurt somebody before he actually did so, in other words, preventative detention. After all he could just have been given the maximum sentence available plus parole restrictions.

He is  still behind bars last I heard.

“What hoodwink men like fallen hawks for doing deeds of nature. The law is such an ass”….
1653 George Chapman.

Sometimes George, but consider the alternatives.

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