Fitness to Stand Trial—Is it Necessary?

• Author: Julio Arboleda-Florez
• Date: 01 January 1982
• Published date: 01 January 1982
• DOI: 10.1177/0306624X8202600107
• Subject Matter: Articles

43

Fitness

to

Stand

Trial—Is

it

Necessary?

Julio

Arboleda-Florez

Introduction

FITNESS

to

Stand

Trial

pertains

to

the

mental

and

physical

con-

dition

of

an

accused

at

the

time

of

the

trial

on

matters

relating

to

the

trial.

Psychiatrists

have

usually

been

involved

in

determining

fitness

to

stand

trial

as

it

may

be

affected

by

emotional

factors.

Such

involvement

has

lead

to

much

criticism

of

psychiatry,

which

has

even

been

indited

as

a

para-judicial

institutions.

1

This

author

defines

fitness

to

stand

trial

as

the

recognition

in

the

Justice

System

of

an

accused’s

cognitive

and

emotional

ability

to

understand,

participate

and

withstand

his

legal

process.

The

concept

of

fitness

to

stand

trial,

however,

is

confusing,

and

is

not

usually

defined

by

criminal

codes.

The

Criminal

Code

of

Canada,2

for

example,

does

not

define

it.

Section

543,

1

simply

states

that:

&dquo;a

court,

judge

or

magistrate

may,

at

any

time

before

the

verdict,

where

it

appears

that

there

is

sufficient

reason

to

doubt

that

the

accused

is,

on

account

of

insanity,

capable

of

conducting

his

defense,

direct

that

an

issue

be

tried

whether

the

accused

is

then,

on

account

of

insanity,

unfit

to

stand

trial&dquo;.

That

is,

the

Criminal

Code

of

Canada

equates,

like

many

other

criminal

codes,

fitness

to

stand

trial

to

the

absence

of

insanity

at

any

time

before

the

verdict.3-4

Criminal

codes

neither

give

any

set

of

criteria

or

explicit

tests

to

guide

judges,

lawyers,

or

psychiatrists,

regarding

what

to

ask

for,

or

what

to

look

for

when

considering

the

fitness

of

an

accused.

Courts

and

even

statutes

may

confuse

fitness

to

stand

trial

with

criminal

responsibility

and

certifiability

(civil

commitment).5

Ambiguity

about

what

fitness

to

stand

trial

is,

coupled

to

the

disastrous

consequences

of

a

finding

of

unfitness,

usually

indeter-

minate

commitment

to

a

mental

hospital,

has

led

psychiatrists

to

look

for

criteria

that

could

be

easily

applicable

in

a

particular

case.

Criteria

The

modern

criteria

employed

to

determine

the

issue

of

fitness

were

outlined

by

Norwood

East6

in

1927:

&dquo;A

prisoner

is

unfit

to

plead

to

an

inditement

when

he

suffers

from

such

a

disease

of

the

mind

as

to

prevent

him

from

challenging

a

juror,

from

under-

standing

the

nature

of

the

proceedings

in

Court,

from

distin-

guishing

between

a

plea

of

guilty

or

not

guilty,

from

examining

witnesses

or

instructing

counsel

on

his

behalf,

or

otherwise

making

a

proper

defense,

or

from

following

the

evidence

intelligently&dquo;.

In

short,

the

issue

of

fitness

should

be

addressed

to

the

following

questions:

does

the

accused

have

the

capacity

to

understand

the

nature

and

object

of

the

proceedings

against

him-is

he

capable