The Psychiatrist's Guide to Right and Wrong: Part IV: The lnsanity Defense and the Ultimate lssue Rule

Robert Lloyd Goldstein, MD, JD

In the wake of Hinckley, widespread public dissatisfaction with the role of psychiatrists in defense litigation prompted Congress in 1984 to amend the Federal Rules of to prohibit psychiatric on the ultimate legal issue of whether or not a defendant is insane. APA's Statement on the lnsanity Defense served as the ably articulated premise for this evidentiary amendment. APA argued that in going beyond their psychiatric expertise by answering ultimate issue questions as to whether defendants are legally insane, experts are likely to confuse the and undermine public confidence in psychiatry. APA also asserted that there was an impermissible logical leap between scientific psychiatric inquiry and moral- legal conclusions on the ultimate issue of insanity. This article reviews the origins, history, and vicissitudes of the Ultimate lssue Rule and analyzes the Stateme~ton the lnsanity Defense from both a legal and psychiatric perspective on the issue of whether psychiatrists should answer the ultimate question in insanity cases. The analysis suggests that APA's conclusions are not supported on scientific or eviden- tiary grounds, but may be warranted as a policy consideration to safeguard the public image of psychiatry.

The mist the gods drew about them on the limitation on expert testimony had been battlefield before Troy was no more dense than repudiated by most jurisdictions and by the one enshrouding the origins of the [Ulti- mate Issue] Rule. ' the Federal Rules of Evidence at the time of the Hinckley trial in 1982. How- The Ultimate Issue Rule holds that an ever, prompted by public dissatisfaction expert is not permitted to render with the "not guilty by reason of insan- an opinion on the ultimate issue in the ity" verdict in the Hinckley trial,2 Con- case (e.g., whether a defendant was "in- gress amended Federal Rule of Evidence sane"), because, inter alia, this would 704 in 1984,* specifically prohibiting invade the province of the jury. This *Rule 704 subparagraph (b) as amended reads as fol- lows: Dr. Goldstein is associate professor of clinical psychia- try and course director of the "Legal and Ethical Issues No testifying with respect to the in the Practice of Psychiatry" Program, College of Phy- mental state or condition of a defendant in a sicians and Surgeons of Columbia University. Address reprint requests to Dr. Goldstein, The Apthorp, 390 criminal trial may state an opinion or infer- West End Ave., New York, NY 10024. ence as to whether the defendant did or did

Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 269 Goldstein

psychiatric expert testimony in criminal diagnosis at the time of the alleged act, cases on the ultimate legal issue of but is barred from drawing inferences whether or not a defendant is in~ane.~from such data to connect it to the The rationale for this limitation on psy- and reach conclusions about the ulti- chiatric testimony in insanity cases, mate issue of insanity. which the Senate Judiciary Committee This paper will discuss the origins and cites as the basis for its action, is set forth history of the Ultimate Issue Rule, its in the American Psychiatric Association rejection by a majority of American ju- (APA) Statement on the Insanity De- risdictions and by Congress by 1975, and fen~e,~which argued that by going be- its resurrection in 1984 by amendment yond their psychiatric expertise to make of Rule 704. APA's Statement on the conclusory statements about whether Insanity Definse, the ably articulated defendants are legally insane, psychiatric premise for this evidentiary amendment, expert are likely to confuse the will be analyzed from both a legal and jury and undermine public confidence psychiatric perspective and alternative in psychiatry. APA asserts that there is points of view will be explored on the a "logical leap" between scientific psy- issue of whether psychiatrists should an- chiatric inquiry and moral-legal conclu- swer the ultimate question in insanity sions: cases. it is clear that psychiatrists are experts in med- icine, not the law. . . . When, however. "ulti- The Vicissitudes of the Ultimate mate issue" questions are formulated by the Issue Rule law and put to the expert witness . . . [he] is The common law origins of the evi- required to make a leap in logic. He no longer addresses himself to medical concepts but in- dentiary doctrine known as the Ultimate stead must infer or intuit what is in fact un- Issue Rule are 0bscure.t The first ap- speakable, namely, the probable relationship pearance of the rule in American courts between medical concepts and legal or moral constructs such as free will. These impermis- has been traced to an 1840 case, Davis sible leaps in logic made by expert witnesses v. F~ller,~in which a witness was barred confuse the jury.4 from opining as to the cause of back- Under the amended rule, the psychi- water in a river (which was the ultimate atric expert may testify as the the de- issue to be decided in the case). Thus, fendant's mental state, motivation, and for example, in cases, application of the rule would prohibit expert opinion on whether the defend- not have the mental state or condition consti- tuting an element of the crime charged or of a ant knew right from wrong with respect defense thereto. Such ultimate issues are mat- to the particular act charged. The basis ters for the trier of fact alone.' generally assigned for the rule was that Rule 704(b) applies in federal, not state, courts and there was a danger that the witness might extends beyond the insanity defense to any ultimate mental state of the defendant that is relevant to the "usurp the province of the jury,"6 which legal conclusion sought to be proved, e.g., criminal intent. premeditation, and so on. Expert testimony embracing all such ultimate issues is prohibited. Many t The rule does not appear to have English common states (e.g., N.Y.) do not follow Rule 704(b). law antecedents.'

270 Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 Psychiatrist's Guide to Right and Wrong: Part IV might in turn unthinkingly accept the i.e., to admit it whenever it is hcdgfid to opinion of an influential witness without the trier oJfuct.$ independently analyzing the facts at is- Less than ten years later, in response sue in the case. Wigmore characterized to the outcry of public criticism over the these concerns as mere "empty rheto- Hincklq verdict, Congress reversed it- ri~,"~because the jury is always free to self and amended Rule 704 to resurrect reject the opinion of any expert, no mat- the Ultimate Issue Rule.fur psychiatrists ter how respected and well-qualified. It only!$ became increasingly apparent that in Rule 704 as amended now reads as practice neither the rule nor its rationale follows: worked for a number of reasons: (a) Except as provided in subdivision (b), tes- [tlhe rule was unduly restrictive, difficult of timony in the form of an opinion or inference application, and generally served only to de- otherwise admissible is not objectionable be- prive the trier of fact of useful information.' cause it embraces an ultimate issue to be de- cided by the trier of fact. As a consequence of the restrictions (b) No expert witness testifying with respect imposed by application of the rule, to the mental state or condition of a defendant were deprived of valuable expert testi- in a criminal case may state an opinion or inference as to whether the defendant did or mony that would assist them to get the did not have the mental state or condition thrust of complex evidence of a technical constituting an element of the crime charged nature and put it into the proper context. or of a defense thereto. Such ultimate issues As a related issue, were often are matters for the trier of fact alone.' faced with difficult line-drawing prob- Congress justified this return to the lems. determining whether expert testi- discarded Ultimate Issue Rule by refer- mony consisted of acceptable opinions ring to the nature and limits of psychi- on mediate facts or unacceptable opin- atric expertise. It noted that psychiatrists ions on ultimate issues. Beginning in the have no special expertise enabling them 1930s, these difficulties resulted in a to draw conclusions on the ultimate trend to abandon the rule altogether. question of criminal responsibility. The A majority of courts had already re- amendment would jected the rule as ill-conceived and un- necessary by 1975, when Congress en- acted Federal Rule of Evidence 704, $Opinions on the ultimate issue, stated in a strictly conclusory fashion, for example, would not help the which stated: trier of fact and would be of little evidentiary value without exploration of the underlying factual basis and [tlestimony in the form of an opinion or infer- rationale, showing the path from the facts to the opin- ence otherwise admissible is not objectionable ion. Thus an expert would not be permitted to express because it embraces an ultimate issue to be the opinion "I think the defendant is guilty." Such an decided by the trier of fact.' opinion would not be helpful to the jury. 5 Although primarily affecting psych~atrists,the rule's Rule 704 specifically abolished the U1- restrictions would apply equally to all mental health experts, eg, psychiatrists, psychologists, and so on. In timate Issue Rule and underscored the this paper, references to psychiatrists in this regard should be understood to include members of the other basic principle of the Federal Rules of mental health specialties who may bc called on for Evidence regarding opinion testimony, expert testimony.

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eliminate the confusing spectacle of competing are expert. Determining whether a criminal expert witnesses testifying to directly contra- defendant was legally insane is a matter for dictory conclusions as to the ultimate legal legal factfinders, not experk4 issue to be found by the trier of fact."' APA's position is predicated on four As amended, Rule 704 now singles basic premises, each of which will be out psychiatrists testifying in criminal analyzed in depth in the following sec- trials on insanity and related mental tions. states for special treatment, distinguish- ing between the testimony of those psy- 1. Contradictory Psychiatric chiatric experts and the testimony of any Testimony on the Ultimate lssue and all other experts in other cases. Tends to Confuse and Mislead the Thus courtroom disagreement will be Jury allowed and qualified experts will be The Federal Rules of Evidence es- allowed to testify on ultimate issues "in pouse a generally liberal approach to- many areas, including medical malprac- wards expert testimony, favoring admis- tice, products liability, child abuse, high- sibility whenever such testimony is way safety, and antitrust,"" with the one "helpful to the trier of fact." However, and only exception of psychiatrists in even relevant evidence may be excluded insanity defense cases. I1 if it is likely to be confusing and mis- leading. Federal Rule of Evidence 403 Analysis of the American provides: Psychiatric Association's "statement on the Insanity [allthough relevant, evidence may be excluded if its probative value is substantially out- Defense" in Regard to the weighed by the danger of unfair prejudice, Ultimate Issue Rule confusion of the issues or misleading- the --jury, Insofar as it addresses the Ultimate or by considerations of undue delay, waste of time, or needless presentation of cumulative Issue Rule, the Statement on the Insanity evidence.l2 ,emphasis suppliedl Defense of the APA recommends that ~svchiatrists APA has concluded that contradictory A. psychiatric testimony on the ultimate be permitted to testify fully about the defend- ant's psychiatric diagnosis, mental state and issue of insanity tends to confuse and motivation (in clinical and commonsense mislead "less than fully understanding terms) at the time of the alleged act so as to juries."" permit the or jury to reach the ultimate conclusion about which they, and only they, In considering the same issue, just ~riorto the missage- of the 1984 amend- 11 It is the thesis of this article that the resurrection of merit 7043 the United States the Ultimate Issue Rule solely in cases involving psy- Court of Appeals for the Second chiatric testimony on the issue of criminal responsibility was basically a political decision, unsupported by a Circuit'3 reached a contrary conclusion, sound scientific basis. It will serve to deprive factfinders that of helpful expert testimony, because it results in indirect and incomplete expert testimony. In all other types of the unique complexity of the insanity defense cases, the Ultimate Issue Rule has been abolished for the reasons stated in the original FRE 704 ((975)Ad- against conflicting expert vison Committee Note7 (primarilv because ultimate testimony solely in the interests of reducing issuetestimony by experts is helpfui to the factfinder). confusion. I (p 632)

272 Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 Psychiatrist's Guide to Right and Wrong: Part IV

Demonstrating its faith in the jury's testify on the ultimate issue of insanity ability to understand and digest such for the following reasons: testimony,ll the court went on to state: 1. it assists the factfinders to analyze and draw In making this legal and moral judgment, the inferences about the mass of psychiatric data, jury should not be shielded from differences which they as laymen would not be competent of opinion in a profession that can never be to draw; entirely devoid of subjective disagreements. 2. it teaches the jury to evaluate the evidence Psychiatric testimony should not be excluded before it, ensures that it gets the thrust of solely as a result of an unfounded belief that complicated psychiatric opinions, and pro- "a jury will not be able to separate the wheat vides guidelines on how to connect psychiatric from the chaff."" findings to the crime; 3. it allows both cross examination and the A number of commentators have ar- jury's own skepticism to test the psychiatric gued persuasively that psychiatric testi- opinions and to scrutinize the psychiatrist's mony on the ultimate issue of insanity reasoning process. supporting data and ration- ale for his conclusion.# actually serves to clarify the import of the psychiatric evidence and reduces She concludes that Rule 704 as jury confusion. Rudolph Giuliani (then amended will actually increase jury con- Associate Attorney General of the fusion "because it encourages indirect United States) stated: and incomplete testimony"" erects an artificial barrier to critically important it would probably make no sense at all to a jury if you didn't have the psychiatrist in the expert opinion, and deprives the jury of long run drawing a conclusion. It would be all the most useful information the psychi- gobbledy-gook without the psychiatrist draw- atrist can contribute. ing a conclusion as to what he's saying.'" 2. Psychiatric Experts "Usurp the Ciccone and Clements, on clinical and Province of the Jury" When They philosophical grounds, differ with APA Opine on the Ultimate Issue on the ultimate issue question. They Legal commentators have tended to observe: dismiss the fear that ultimate issue tes- Expert testimony about behavior cannot be timony by expert witnesses might invade severed from expert testimony about the ca- the province of the jury. Korn16 regards pacity to have and decide among options [e.g., to judge between right and wrong]. . . . re- SUC~a fear as "a n~n~en~i~alobjection"

lating how a mentalhisease or defect relates to and Wigmoreh- characterizes it as "a the NGRl defense, a psychiatrist is completing bit Of empty rhetoric.m noted the scientific process.15 above, the jury is free to reject the opin- In an excellent and comprehensive ion of any expert if there is evidence to overview of the issue from an eviden- support a contrary finding. The jury tiary perspective, Braswell'' argues that knows full well that it alone has the psychiatric experts should be allowed to power to render a verdict in the case: ll The court noted in the same regard: "Even in civil # For example, "Cross examination might focus on the litigation, where non-perspicuous issues and abstruse imprecision ofan expert'sdcfinitions, other conclusions evidence proliferate, we have never acknowledged a reachable on similar facts, and the shortcomings of the 'complexity exception' to the right to a jury trial."13 expert's evaluative techniques.""

Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 273 Goldstein

Once again, this opinion testimony is not a at liberty to disbelieve it when it is improbable, verdict. . . . The jury may accept or reject the incredible, false. or mistaken." psychiatrist's opinions. The expert's opinion is not the same as the jury's moral and legal It would appear that there is little in decision and does not intrude upon or usurp the way of empirical support for the the jury's function.'' proposition that ultimate issue testi- In other words, the determination of mony will invade the province of the the ultimate issue of insanity remains jury. Most legal authorities have dis- the sole province of the jury; but psychi- missed this concern as unwarranted.?? atric testimony (including an opinion on the ultimate issue) permits the jury to 3. The Public Image of Psychiatry make a more informed decision as to as a Profession is Tarnished by the evidentiary weight that should be the Spectacle of Competing accorded to the psychiatric evidence pre- Expert Witnesses Testifying to sented by each side. The purpose under- Directly Contradictory lying the testimony of the psychiatric Conclusions on the Ultimate Issue expert is not to substitute his opinion on In the wake of Hinckley, commenta- the ultimate issue for that of the jury. tors across the political spectrum and Rather, it is to provide a scientific per- the public in general have questioned spective for the jury, according to which the usefulness of psychiatric expertise in it can then discharge its inviolable legal criminal proceedings, revealing their responsibility to arrive at a more in- general lack of confidence in forensic formed and intelligent verdict. Excessive p~ychiatry.~$$Public mistrust was fear of jury domination by experts who linked to preconceptions that the insan- testify on the ultimate issue is unwar- ity defense is a "loophole" that allows ranted: such testimony will be tested by many guilty individuals to go free and the jury's own skepticism, cross exami- the belief that conflicting expert testi- nation, and the persuasiveness of the mony must mean that forensic psychia- opposing expert's testimony.** Fears try is inherently imprecise with no sci- that expert testimony because of its entific consensus for the determination "aura of special reliability and trustwor- thiness"" might overawe jurors, who are tt Note, for example, the following: Wigmore6("a mere not used to scrutinizing authorities, bit of empty rhetoric"); Morgan" ("sheer nonsense"); seem exaggerated and unfounded in the Slough" ("It is a curious turn of mind that impels a judge to mistrust the ability of the juror to assay the light of empirical studies which reached opinion of an expert and si~nultaneouslygives that same contrary findings:I8 juror undeserved credit with respect to comprehension of an abstract, complex Ljury] instruction."); Ladd" Jurors were shown to process expert testimony ("Because jurors realize that they are the final triers to determine the issues and are reluctant to part with that in a reasoned and systematic fashion, feeling right, there isn't much danger in reality from the use of all-embracing questions."): Korn16 "a nonsensical ob- jection"). ** "Psychological and psychiatric conclusions do not have any magic potency, and those that are seen as $$Some were disdainful, e.g. "[Tlhe insanity defense unreasoned or unsupported by the trier of fact . . . can [is] a true legal art form with high-priced psychiatrists easily be dismissed if they are not convinced that evi- used to parade confusing conjecture about the mental dentiary weight should be placed on it."'" condition of a defendant."'

274 Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 Psychiatrist's Guide to Right and Wrong: Part IV of in~anity.~Slater and Hans, in an em- "psychiatry will always be the loser even pirical study of adverse public opinion when the verdict is legally just."" about following APA's recommendation for a strategic Hinckley, concluded that negative atti- retreat in insanity defense litigation is tudes were complicated by the public's based on the major premise that psychi- lack of knowledge of both psychiatry atrists cannot, within the scope of their and law: effective clinical skills, provide a scien-

influence on the opinion of a public unin- tations in this context, they frequently formed of the workings of the legal system and . . . the insanity defense' tarnish the image of the profession in the process. In the following section, this Although courtroom disagreement major premise will be analyzed in detail. among expert witnesses is certainly not peculiar to psychiatristsm§§ nonetheless 4. Psychiatrists are Experts Only public disenchantment with the "battle Within the Scope of Their Clinical of the experts" in highly publicized and Skills; They Lack Expertise in controversial trials involving the insan- Ultimate Legal or Moral Issues ity defense is likely to undermine confi- and Therefore Make dence in psychiatry. Impermissible Logical Leaps Based at least in part upon concern when Opining on the Ultimate for the integrity of psychiatry in the face Issue of Insanity of such unfavorable public attitudes, Aside from APA's concerns about the APA's Statement on the Insanity De- impact of ultimate issue testimony on fense would narrow the scope of psychi- the judicial system or on the public per- atric expert testimony to the defendant's ception of the psychiatric profession, this mental state, motivation and diagnosis, section will focus on the basic substan- thereby eliminating conflicting expert tive contention in APA's Statement on opinions about ultimate factual issues. the Insanity Defense, i.e., that there is a Such concern may not be unfounded in "logical leap" involved in giving opin- view of the firestorm of criticism follow- ions on ultimate issue questions, with ing Hinckley. According to Stone, when- the result that psychiatrists exceed the ever psychiatrists venture beyond the limits of their scientific expertise and limits of their specific clinical expertise, make unwarranted claims of expertise especially in the glare of disproportion- in matters of law and morality which ate notoriety in insanity defense trials, they do not in fact possess. The definition of forensic psychiatry $9; Valid and legitimate disagreements occur in all fields: the American physics, engineering, architecture, medicine, and so on. Psychiatry and the Law and adopted by "The experts are likely to disagrce about the underlying facts, which are usually both complex and uncertain; the American Board of Forensic Ps~- they are even more likely to disagree about thc infer- ences to be drawn from those facts."" (Judge Bazelon chiatry, as propounded by Halpern, on experts in science and technology) states in relevant part:

Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 275 Goldstein

Forensic psychiatry is a sub-specialty of psy- jury the expert's opinion on the ultimate chiatry in which scientific and clinical ex- issue deprives them of the opportunity pertise is applied to legal issues in legal con- texts . . . "" "to directly hear the full scientific in- quiry and assess its validity."I5 They go Epistemologic problems may arise at on to question whether there is any basis the interface between psychiatry and the for APA's conclusion that there is an law during the process of application of "impermissible" leap in logic in opining psychiatric expertise to "legal issues in on ultimate issues or that such opinions legal contexts," because of fundamental sho~ldbe characterized as legal or differences in coriceptualizations and moral. They note that, although under models employed by the two disci- certain circumstances the examination pline~.'~The result of these disparities is does not lead to sufficient data based on that on occasion the law deals with the which an opinion may be reached on subject matter of psychiatry in terms the ultimate issue, there are instances that may be foreign to the conceptual certainly where an opinion is possible: system of the psychiatrist.1611 11 The in- The inference or conclusion emerges from the sanity defense offers a particularly strik- initial question and examination and is part of ing illustration of this problem: the medical-psychiatric process. . . . In relating how a mental disease or defect relates to the the question whether a particular actor was NGRI defense, a psychiatrist is completing the responsible, even apart from its historical in- scientific process. . . . Empirical data do not gredient. is not a purely scientific one; that is, lead to logically necessary conclusions. They it cannot be resolved solely by reference to the lead to probable inferences where there may learning of psychiatry. Policy and value ingre- be a range of agreement or disagreement.I5 dients have been superimposed on that learn- ing and have produced a legal concept . . . that This viewpoint would be consistent has no counterpart in the psychiatrist's con- with the full range of situations in which ceptual system. l6 psychiatric expertise is applied to "legal The application of such mixed legal- issues in legal contexts;" e.g., in deter- scientific concepts will always involve mining whether as a result of psychiatric an expert in his testimony attempting to illness an individual is competent to pro- bridge the gap between scientific and ceed to trial, is totally disabled under legal conception. Should the inferential Social Security guidelines, or has the jump required from psychiatric concep- capacity to execute a will or a contract. tions to legal ones suffice to preclude In all of these situations, it is generally ultimate issue psychiatric testimony? accepted that the psychiatric expert can Ciccone and Clements argue that such effectively communicate from his con- an inferential jump is "a logical step in ceptual system knowledge that is rele- the total process" of conducting a foren- vant and helpful in moving inferentially sic psychiatric examination; denying the to the legal conception (without any ob- jection or caveat to the effect that he is II 11 Bursten's book Beyond Psychiatric Expertisc9' pro- not an expert in criminal procedure, or vides a scholarly analysis of burdens placed on forensic in vocational counseling, or in estate or psychiatrists by society whcn public policy requires answers to questions that may be beyond their expertise. contract law).

276 Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 Psychiatrist's Guide to Right and Wrong: Part IV

Previous articles in this series have commissi). The following brief examples attempted to explicate judicial and stat- are paradigmatic: utory standards of insanity and correlate Example 1 them with the psychiatrist's findings of A killed his wife by poisoning her. As a result p~ychopathology.7Ill~~-~~A classificatory of a paranoid illness (induced psychotic disor- scheme of delusional subtypes was pre- der), he sincerely believed that she suffered sented, correlating delusional content from an incurable illness that would inevitably lead to an overwhelmingly painful death. with lack of criminal responsibility When informed by the police that his wife had within jurisdictions following various died in the hospital. he stated "I suppose they standards of in~anity.~'Similarly, the ex- will hang me for this?" The jurisdiction in culpatory effect of Postpartum Depres- question followed a cognitive insanity test. re- quiring that the accused knew that his act was sion under the Model Penal Code ap- legally wrong in order to be held criminally proach was analyzed.33 These articles responsible for his act. In view of his admission concluded that to the police, the psychiatric expert opined that his psychotic illness did not rise to the level of by properly relating his clinical psychiatric exculpatory insanity, because he knew that his findings to the relevant legal criteria for crim- act was contrary to iaw (as well as realizing inal responsibility that apply, the psychiatrist what punishment the law provided for mur- is better prepared to provide data and infer- der). ences to the factfinder that are needed to achieve the law's purpose.30 Example 2 B had a history of numerous psychiatric hos- pitalizations and suffered from the delusion Varying Legal Standards of Wrong- that she was Jczreel, Lord God Woman, feeling fulness The law does not recognize a compelled to follow her own rules as opposed to those of society. She fatally stabbed her transcendent constancy in the legal in- victim with a butcher knife. believing that she sanity status of psychotic individuals: was her own judge of what was right and wrong insanity is a relative matter dependent and could operate under her own standard of morality, which applied only to her. She real- not only upon the operative psychopath- ized that she had acted against the law and ology at the time of the act, but also against the commonly accepted standards of upon how specific symptoms comport morality which prevail in the community. The with the law of the jurisdiction in which jurisdication in question followed a cognitive insanity test, with an objective moral standard the defense occurred (the lex loci delicti (i.e., moral wrongfulness is not io be judged by the moral standards of the accused, but by his awareness that society regards the act as lln These articles considered only cognitive tests for wrong). The psychiatric expert concluded that insanity, not volitional ones. Even APA conceded that she was criminally responsible for her conduct many psychiatrists believe that psychiatric information because she knew that she had acted contrary relevant to whether an individual understood the nature of his act or its wrongfulness (i.e., the cognitive test) is to public standards of morality. "more reliable and has a stronger scientific basis" than Example 3 does psychiatric information relevant to whether he was able to control his behavior (i.e., the volitional test).' C suffered from paranoid schizophrenia. He Any concern about volition testimony is moot however believed that the Mafia was planning to kill in federal court since Congress deleted the "irrestible him. When a policeman stopped him for going impulse" prong of the legal test for insanity in 1984.' The author shares APA's skepticism in regard to voli- through a red light, he heard voices warning tional tests and will restrict the discussion to cognitive him that the officer was in fact a Mafia "hit- tests and various standards of "wrongfulness." man" who was about to shoot him. On the

Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 277 Goldstein

basis of this sincere but delusive belief, he shot ni~ians.~~They agree that when the psy- and killed the policeman. In a jurisdiction following an insanity standard similar to Ex- chiatrist ample 2 (i.e., a cognitive test, with an objective is forced to adopt the vocabulary of morality moral standard), the psychiatric expert testi- and ethics, he is speaking in what to him is a fied that C was not criminally responsible. C foreign language and in an area in which he suffered from a delusional psychosis. If the claims no e~pertise.'~ facts had been as he deludedly supposed them to be, he would have been acting in justified self-defense and would not have expected to This objection may reflect a basic mis- be held culpable under those circumstances conception on the part of psychiatrists. according to the standard of public morality. They are not being asked to pass judg- Accordingly, it could not be said that he knew ment on the moral standards of the ac- his act to be wrong. cused or of society. Likewise, psychia- The thrust of Ciccone and Clements' trists should not be concerned with work and the previous articles in this whether defendants acted according to series is that by using standard clinical their own (psychiatrists') standards of means of evaluation and, as a threshold morality. They are not even required to issue, ascertaining and applying the ap- determine the functional status of some propriate legal insanity test (e.g., the ap- transcendental moral faculty of the de- propriate specific legal standard of fendant to determine right and wrong in wrongfulness), the forensic psychiatrist general terms. What they are required to may be able to "complete the full sci- assess is the capacity or competency of entific inquiry," bridge the gap between the defendant to know (or appreciate) scientific and legal conceptions, and the wrongfulness (or criminality) of the draw "probable inferences" which em- particular act as charged. Such an as- brace the ultimate legal issue of insanity. sessment does not call for a moral pro- A common objection among psychi- nouncement or judgment, but merely atrists to the present chief criterion of for a focused psychiatric evaluation of responsibility is that it is couched in reality testing, ego function, and super- moral or ethical terms.34 They maintain ego structure, well within the scope of that they are experts in psychiatry and acknowledged psychiatric expertise. The not morality;## that knowledge of right clinical findings are then correlated with and wrong is a problem for the theolo- the relevant legal criteria. In many cases gian, not the psychiatrist, and that such (e.g., when individuals manifest delu- determinations necessitate value judg- sions of persecution and believe they are ments that are of necessity taboo to cli- acting in justified self-defense), there is no impairment of moral perceptions per ## Actually psychiatrists may know more than they care se. Such individuals have correctly inter- to admit. Brenner states: "The superego corresponds in a general way to what we ordinarily call conscience. It nalized the moral standards of society comprises the moral functions of the personality.""' (i.e., they know it is morally permissible The psychiatrist is no stranger to superego pathology, severity of the superego or lacunae in the superego. to act in justified self-defense). It cannot Fingarette asserts that "the identification and assess- be said that they know the particular act ment of moral knowledge and moral attitudes play a systematic and central role in psychiatric doctrine."]' to be wrong; however, the incapacity to

278 Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 Psychiatrist's Guide to Right and Wrong: Part IV apprehend its wrongfulness is not be- not intrude upon or usurp the jury's cause of a defective moral compass (their function."15 moral compass appears to be in good Conclusion working order). What is deranged is the The expressed rationale for the Ulti- ego function of reality testing in regard mate Issue Rule made little sense; courts to the surrounding circumstances, not came to realize that the Rule could not superego functioning. To put it another be meaningfully or consistently en- way, they are capable of judging between forced. Prior to its amendment in reac- right and wrong as a general principle. tion to the Hinckley verdict, Federal It is in regard to the particular act that Rule 704 was consistent with previous they fail to draw the proper distinction. practice insofar as it continued the mod- If the situation had in fact been as they ern trend of abolishing the Ultimate Is- deludedly believed it to be, they would sue Rule. In 1984, with the amendment have been acting acceptably in keeping of Rule 704, the Ultimate Issue Rule with public standards of morality.*** was resurrected for psychiatrists in in- Psychiatrists are not called upon to be sanity defense cases only. The ably artic- moral philosophers (it is conceded that ulated basis for this evidentiary amend- they are not) in order for them to analyze ment, APA's Statement on the Insanity certain forms of psychopathology and move inferentially to the conclusion that Defense, set forth a number of premises there was or was not a lack of capacity for its recommendation that psychia- trists should not be permitted to testify to know that a particular act was wrong. This is not to say that such a determi- on the ultimate issue of insanity. Analy- nation can be made in all or even most sis of these premises does not support APA's contention that psychiatric testi- cases to a reasonable degree of medical certainty. Devlin asserts that society has mony on the ultimate issue of insanity a right to have a public morality and to represents an "impermissible" leap in use the law to enforce it.3RThe public logic, that it exceeds the scope of effec- morality is determined by the moral tive psychiatric skills, or that it repre- judgments of the cross section of society sents a moral and legal judgment as represented by the 12 citizens in the jury opposed to a clinical one. Likewise. box. In the discharge of their legal re- there is no evidence that ultimate issue sponsibility in returning a verdict, it is testimony serves to confuse the jury or the jury that exercises a moral judgment, usurp its prerogatives. In many instances not the psychiatrist. Ciccone and Clem- psychiatrists can draw valid inferences ents underscore this point: "[tlhe ex- which embrace the ultimate issue of in- pert's opinion is not the same as the sanity. Such expert opinions are "scien- jury's moral and legal decision and does tifically re~pectable'"~.However, APA's concern about the unfavorable public attitude towards psychiatric participa- ***Not to put too fine a point on it, they apply the tion in controversial insanity defense correct set of moral standards to the wrong (because delusionally distorted) set of facts. cases may be a valid basis for resurrec-

Bull Am Acad Psychiatry Law, Vol. 17, No. 3, 1989 279 Goldstein

tion of the Ultimate Issue Rule in Fed- 2. Slater D, Hans VP: Public opinion of forensic eral Rule 704 as amended. APA's con- psychiatry following the Hinckley verdict. Am J Psychiatry 141:675-9, 1984 cern about the integrity of the profession 3. FED. R. EVID. 704(b) (as amended in 1984) and its public image may warrant a con- 4. American Psychiatric Association, Statement on the Insanity Defense, 1982 p 14 sidered judgment that the expert's view 5. Davis v. Fuller, 12 Vt. 178 (1840) regarding the inferential jump between 6. Wigmore J: Evidence in Trials at Common the scientific and the legal conception is Law, 7th Ed. (ed Chadbourn) Boston, Little, Brown and Co. 1978,§ 1920, p 18 not wanted, on the grounds of policy (as 7. FED R EVID 704. Advisory Committee's opposed to scientific or evidentiary) con- note 8. FED R EVID 704 (as enacted in 1975) siderations. It may be that such a stra- 9. FED R EVID 704 (as amended in 1984) tegic retreat is in the best interest of 10. S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983) psychiatry. TttThis view would suggest 1 1. Note, resurrection of the ultimate issue rule: that the real issue after all may not be federal rule of evidence 704(b) and the insan- whether psychiatrists can answer the ul- ity defense. Cornell Law Rev 72:620-40, 1987 timate question, but whether they 12. FED R EVID 403 should answer it. 13. United States v. Torniero, 735 F.2d 725 (2d Cir 1984) Appendix 14. National Mental Health Association: Myths & Realities: Hearing Transcript of the Na- Recently Decided Cases Which Inter- tional Commission on the Insanity Defense, preted FRE 704 as Amended US v. 1983 (testimony of Rudolph Giuliani, p 30) 15. Ciccone JR, Clements C: The insanity de- Lyons, 73 1 F.2d 243 (5th Cir. 1984) fense: asking and answering the ultimate US v. Brown, 776 F.2d 397 (2d Cir. question. Bull Am Acad Psychiatry Law 1985) 15:329-38, 1987 16. Korn HL: Law, fact, and science in the US v. Frisbee, 623 F. Suppl. 1217 courts. Columbia Law Rev 66: 1080- 1 16, (N.D. Cal. 1985) I966 17. United States v. Brown, 557 F.2d 541 (6th US v. Prickett, 790 F.2d 35 (6th Cir. Cir 1977) 1986) 18. Brekke N: Expert scientific testimony in rape US v. Pohlot, No. 86-1222 (3d Cir. trials. Unpublished doctoral dissertation, University of Minnesota. Minneapolis, 1985 Aug. 25, 1987) 19. Goldstein RL: The twilight zone between scientik certainty and legal sufficiency: should a jury determlnc the causation of ttt The American Academy of Psychiatry and the Law should consider an in-depth study of these issues and schizophrenia? Bull Am Acad Psychiatry the formulation of an authoritative position paper Law 15:95-194, 1987 which goes beyond APA's 1982 Slafement. Until these 20. Reform of the Federal Insanity Defense: issues are clarified, psychiatrists who do testify on the Hearings before the Subcommittee on Crim- ultimate issue of insanity (as is the practice in a number inal Justice of the House Committee on the ofjurisdictions) do so under a shadow of sorts. convey- Judiciary, 98th Congress, 1st Session, 150- ing (at least to some) the appearance of impropriety, by 93, 1983 (testimony of Stephen Golding. performing in a way that APA has condemned as Ph.D., p 426; testimony of Rep. Sensenbren- beyond the scope of their professional ability. Whenever ner, p 557) they do so, theirs is the unfair burden of refuting an innuendo. 21. Morgan EM: Basic Problems of Evidence. Philadelphia, ALI/ABA Comm. Continuing Legal Ed. 1962, p 2 18 References 22. Slough MC: Testamentary capacity: eviden- 1. Stoebuck R: Opinions on ultimate facts: sta- tiary aspects. Texas Law Rev 36: 1-4 1, 1957 tus, trends, and a note of caution. Den Law 23. Ladd M: Expert testimony. Vanderbilt Law Center J 4 l:226, 1964 Rev 5:4 14, 1952

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24. Slovenko R: The insanity defense in the wake right and wrong. Part 11: A systematic analy- of the Hinckley trial. Rutgers Law J, 14:373- sis of exculpatory delusions. Bull Am Acad 95, 1983 Psychiatry Law, 17:6 1-7, 1989 25. Bazelon DL: Coping with technology 32. Goldstein RL: The psychiatrist's guide to through the legal process. Cornell Law Rev right and wrong. Part 111: Postpartum depres- 62:8 17-32 sion and the "appreciation" of wrongfulness. 26. Stone AA: Law, Psychiatry, and Morality. Bull Am Acad Psychiatry Law, in press, 1989 Washington, D.C., American Psychiatric 33. Insanity Defense Reform Act of 1984 Press, 1984 402(a), 98 Stat. at 2057 27. Definition of Forensic Psychiatry adopted by 34. Model Penal Code 188- 189 (Tentative Draft the American Board of Forensic Psychiatry, No. 4, 1955) (Correspondence between Dr. Inc., May 20. 1985 (Definition of Abraham Manfred S. Guttmacher and Prof. Herbert L. Halpern, M.D.) Wechsler) 28. Ciutheil TG, Mills MJ: Legal conceptualiza- 35. Sobeloff S: Insanity and the : tions, legal fictions. and the manipulation of from McNaghten to Durham, and beyond. reality. Bull Am Acad Psychiatry Law 10: 17- Am Bar Assoc J 4 1 :793-8 12, 1955 27, 1982 36. Brenner C: An Elementary Textbook of Psy- 29. Bursten B: Beyond Psychiatric Expertise. choanalysis. New York. International Uni- Springfield, IL. Charles C. Thomas, 1984 versities Press, 1955. p 125 30. Goldstein RL. Rotter M: The psychiatrist's 37. Fingarette H: The Meaning of Criminal In- guide to right and wrong: judicial standards sanity. Berkeley. CA, University of California of wrongfulness since M'Naghten. Bull Am Press, 1972, p 104 Acad Psychiatry Law 16:359-67, 1988 38. Devlin P: The Enforcement of Morals, Lon- 3 1. Goldstein RL: The psychiatrist's guide to don, Oxford University Press. 1965

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