The Role of Mental Health Professionals in the Criminal Process: the Ac Se for Informed Speculation Christopher Slobogin

Vanderbilt University Law School Scholarship@Vanderbilt Law Vanderbilt Law School Faculty Publications Faculty Scholarship 1980 The Role of Mental Health Professionals in the Criminal Process: The aC se for Informed Speculation Christopher Slobogin Bonnie J. Richard Follow this and additional works at: http://scholarship.law.vanderbilt.edu/faculty-publications Part of the Law Commons Recommended Citation Christopher Slobogin and Bonnie J. Richard, The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation, 66 Virginia Law Review. 427 (1980) Available at: http://scholarship.law.vanderbilt.edu/faculty-publications/288 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law School Faculty Publications by an authorized administrator of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VIRGINIA LAW REVIEW VOLUME 66 APRIL 1980 NUMBER 3 THE ROLE OF MENTAL HEALTH PROFESSIONALS IN THE CRIMINAL PROCESS: THE CASE FOR INFORMED SPECULATION Richard J. Bonnie* and Christopher Slobogin** I. INDIVIDUALIZATION IN CRIME AND PUNISHMENT: THE ASSAULT OF THE SKEPTICS ........................ 431 A. The Reach of Skepticism ......................... 431 B. The Boundaries of Legitimate Speculation: An Illustrative Case ............................ 435 1. The "Defense" of Intoxication ................ 437 2. Intoxication as a Predicatefor Enhanced Punishment ....................... 438 3. Driving While Intoxicated .................... 440 C. ClinicalInquiry in the CriminalLaw: The IrreducibleMinimum ....................... 441 1. Predictive Inquiries ......................... 442 2. Reconstructive Inquiries .................. 446 a. M ens R ea .............................. 446 b. Automatism and Unconsciousness ......... 447 c. The Insanity Defense ................... 448 d. Diminished Responsibility ............... 449 D. Summary ....................................... 451 * Professor of Law, University of Virginia; Director, University of Virginia Institute of Law, Psychiatry and Public Policy; B.A., Johns Hopkins University; LL.B., University of Virginia. ** Instructor of Law, University of Virginia; Director, University of Virginia Forensic Evaluation Training and Research Center; B.A., Princeton University; J.D., LL.M., Univer- sity of Virginia. Our understanding of the subject addressed in this article derives substantially from Browning Hoffman, our collaborator and teacher. Were we confident that we had faithfully presented Browning's own ideas, we would list him as joint author. In lieu of this, we acknowledge our profound indebtedness to him and our hope that this modest effort would earn his praise. We also would like to express our thanks to our colleagues John Calvin Jeffries, Jr., Gra- ham C. Lilly, Stephen Saltzburg, Elizabeth S. Scott, Gary Melton, Ph.D., and C. Robert Showalter, M.D., all of whom offered helpful comments on early drafts of this article. HeinOnline -- 66 Va. L. Rev. 427 1980 428 Virginia Law Review [Vol. 66:427 II. EXPERT TESTIMONY BY MENTAL IHEALTH PROFESSIONALS: THE NEED FOR INFORMED SPECULATION ............... 452 A. The Limits of Expertise ...................... 455 1. Testimonwy on the Ultimate Issite 456 2. Qualifications of Expert Witnesses ........ 457 B. Opinion Testimony by Me;tal Health Professionals: Three Substantive Contexts ..................... 461 1. The Usefulness of Diagnoses ................. 466 2. Opinions Relating to Mental Elements of Offenses ................................ 473 3. Insanity and Diminished Responsibility: The Problem of Explaining Behavior . .... 485 C. Summary .......................... 492 III. IMPROVING THE QUALITY OF THE FORENSIC EVALUATION: SOME GENERAL PRINCIPLES ........................... 496 A. The Data Collection Process .................... 496 1. The Defendant as a Data Source .............. 496 a. Reconciling the Fifth and Sixth Amendments 497 b. Contextual Variables and Credibility Assessments ....................... 503 2. ObtainingData from Sources Other Than the Defendant ........................ 508 3. The Clinicianas a Data Collector........... 512 B. Assuring Reliability in Opinion Formation ........ 514 1. Structuring Decisionmnaking Procedures .... 515 2. Developing Decisionmaking Criteria ........... 520 IV. CONCLUSION .. ....................................... 522 P ARTICIPATION by psychiatrists, psychologists, and other mental health professionals in the criminal process is currently the target of considerable criticism in the legal literature. Although the attack has focused mainly on the clinician's supposed inability to assess either an offender's dangerousness to society or his "ame- nability" to treatment and rehabilitation, the critics have also called into question the forensic expert's ability to diagnose mental dysfunction and to reconstruct its supposed effects on past behavior. In some measure, this attack is incidental to more sweeping ide- ological challenges to prevailing conceptions of criminal responsibility and punishment. Many critics of the insanity defense assert that the law ought to be indifferent to most claims of abnormal HeinOnline -- 66 Va. L. Rev. 428 1980 1980] Mental Health Professionals 429 psychological functioning; and critics of the utilitarian ideology of sentencing would abandon the ethic of individualization and link punishment primarily to the characteristics of the offending con- duct. Obviously, if subjectivism and individualization were purged from the criminal law, there would be no place for mental health professionals in the courtroom. Much of the critical commentary, however, is focused more spe- cifically on the clinical methodology of the mental health profes- sions. Some critics take the position that even if differences among offenders in psychological functioning were to remain legally sig- nificant, the mental health professional should not be permitted to offer opinions as an expert witness. The essence of the claim is that reconstructive and predictive issues can be decided by laymen on the basis of common experience, and that the "expert" has so little "knowledge" reaching beyond everyday experience that his participation in the adjudication is highly misleading and should be circumscribed severely. This article gives our perspective-derived in large part from our experiences at the University of Virginia's Forensic Psychiatry Clinic, which has performed more than 250 multidisciplinary eval- uations of criminal defendants since 1974 1-on this controversy. Unlike the typical "court clinic,"2 Virginia's Forensic Psychiatry Clinic operates as an independent agency, exercising complete con- trol over case selection. Referrals, which come primarily from defense attorneys, are screened by the Clinic staffs to determine whether the evaluation will be pedagogically valuable for the law students, psychology and psychiatry residents, and community mental health professionals who participate in the evaluation. Each evaluation consists of an extensive background investigation, a social history, psychological testing and one or more psychiatric ' The Clinic was established in 1969, under the auspices of the University of Virginia's Department of Psychiatry, to expose psychiatric residents to occasional forensic experience. Over the past decade, the Clinic's original two-member staff has increased fourfold and its service and training functions have been expanded and diversified. Today it is a core com- ponent of the University's Institute of Law, Psychiatry and Public Policy, which sponsors and promotes interdisciplinary research and collaborative professional training of lawyers and behavioral scientists. 2 See generally R. SLOVENKO, PSYCHIATRY AND LAW 127-40 (1973). 3 The Clinic staff consists of two psychiatrists, one psychologist, one psychiatric social worker and three attorneys. HeinOnline -- 66 Va. L. Rev. 429 1980 430 Virginia Law Review [Vol. 66:427 interviews observed by all staff and trainees." The Clinic's evaluation is shaped during several case conferences featuring active in- terchange between the clinicians and law-trained personnel. Our experiences at the Forensic Psychiatry Clinic have per- suaded us that, with a few major exceptions, the law should not significantly curtail the participation of mental health professionals in the criminal process. We readily acknowledge the impreci- sion of the clinician's tools and his limited knowledge of the range of variables influencing human behavior. However, we believe the interest of the law in the perspectives of the mental health profes- sions has been marked less by a faith in the scientific basis of the disciplines than by considerations of fairness and a vision of hu- mane, enlightened justice. From this perspective, the well-trained clinician has much to offer. For reasons that we will summarize in Part I, we believe the substantive law will, and should, remain fundamentally unchanged. Despite the speculative and uncertain nature of the inquiry, the law will, and should, continue to ask questions about a defendant's psychological functioning and its relationship to his behavior. Hav- ing made this assumption-and assertion-we examine, in Part II, the skeptics' claims that mental health professionals should not be permitted to offer opinions as expert witnesses. We argue that this categorical exclusion would be self-defeating and highly unfair

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