Psychiatry as an Aid to the Administration of Criminal Justice

DOI10.1177/000271622914500106
Published date01 September 1929
Date01 September 1929
Subject MatterArticles
/tmp/tmp-178vmocHjfCGaA/input
Psychiatry as an Aid to the Administration
of Criminal Justice
By WINFRED OVERHOLSER, A.B., M.B., M.D.
Director, Division for the Examination of Prisoners, Massachusetts Department of Mental Diseases;
Assistant Professor of Psychiatry, Boston University School of Medicine
To many persons interested in the the court by someone coming into
criminal law it may seem ultra-
official contact with the prisoner, such
modern, not to say revolutionary, to
as the jailer or defense counsel, or in
suggest that some knowledge of the
some instances was noted by the court
o~ender’s mental processes is, or should
on its own motion.
In any event, the
be, of interest and value to the court as
&dquo;recognition&dquo; was a non-medical one,
an aid to the intelligent disposition of
with the result that in only two general
his case. So strong, however, is still
groups of cases was the question of
the tradition of &dquo;penal equivalents,&dquo;
sanity likely to be raised-first, the
of fixed penalties based upon the sup-
obvious, and second, those in which a
posed gravity of the offense, with arbi-
plea of insanity appeared to be sound
trary distinctions between &dquo;misde-
legal strategy, regardless of the facts.
meanors&dquo; and &dquo;felonies,&dquo; that the
That this has resulted in the overlook-
bearing of the psychology of the crimi-
ing of a considerable number of &dquo;mild&dquo;
nal on the degree of his social undesira-
but none the less legally insane cases is
bility is ordinarily overlooked. Over a
certain.
century ago, Gall remarked:
The need by the court of advisers
The
upon subjects of which the court would
measure of culpability and the meas-
ordinarily be ignorant was recognized,
ure of punishment cannot be determined
and
by
persons who could qualify by
a study of the illegal act, but only by a
study of the individual committing it.
reason of their special knowledge were
called as amici curiae. It seems likely
The thought, then, is not new; it is
that in the early days of the English
merely the application of it in practice
common law and even into the eight-
that appears novel.
eenth century the expert held a valued
The earliest form in which we find
place as a reliable source of counsel to
attention to the mental factor is in the
the court. (1) With the later develop-
concept of insanity, either as abolishing
ments of trial by jury, increasingly
criminal intent (&dquo; responsibility &dquo;), or
rigid rules of evidence, and (notably)
as rendering the defendant unfit to
the &dquo;sporting&dquo; doctrine and practice of
plead or advise with counsel (&dquo; tria-
the criminal law, however, the expert
bility &dquo;). By reason of the fact that
has tended to deteriorate into a parti-
mental alienation, if proved, served as
san.
Add to partisan bias the proba-
a
complete defense to the charge, it was
bility of honest difference of opinion,
natural that the aspect of responsibility
the propounding of hypothetical ques-
should become the focus of interest.
tions (usually failing to state the whole
case) to which the witness must reply
EXPERT TESTIMONY-ORIGIN AND
by &dquo;yes&dquo; or &dquo;no&dquo; without an opportu-
DEVELOPMENT
nity to modify or explain his answer,
From the first, the matter of alleged
and it is easy to see why juries and
insanity was called to the attention of
judges not infrequently feel only per-
23


24
plexity or irritation as a result, and
ing his credibility. (4) It is, therefore,
why, for example, the United States Su-
unfortunate that Michigan should have
preme Court said as long ago as 1858:
seen fit to adopt an opposite attitude
Experience has shown that opposite opin-
by the Dickerson decision, (5) and that
ions of
Illinois should have followed its ex-
persons professing to be experts may
be obtained to any amount. (2)
ample recently in declaring that such
appointment would serve as a certifi-
That expert testimony has fallen into a
cate of credibility and might thereby
fairly general disrepute is unfortu-
unduly affect the weight of the defend-
nately true.
ant’s witnesses. (6)
In some jurisdictions the practice has
ATTEMPTS TO CORRECT THE SITUATION
been to appoint commissions to make a
Courts and legislatures have not
formal investigation of the defendant’s
been blind to the fact that expert testi-
mental condition. This method has
mony has been perverted from its
savored of the old inquisitio de lunatico
pristine purpose, and attempts have
inquirendo, and has been open to ob-
been made by rules of practice, by de-
jection by reason of its very formality,
cision and by statute to assure to the
with resulting difficulty in ascertaining
court some reliable means of securing
the facts as satisfactorily as would be
the desired information concerning the
the case in a less legal atmosphere.
defendant’s mentality. That it is not
The expense attached to such commis-
only the right but the duty of the court
sions has sometimes appeared exorbi-
to ascertain the truth presumably
tant, and the qualifications as &dquo;ex-
should be axiomatic, and the United
perts&dquo; of some of the appointees have
States Supreme Court has stated that
been dubious; judges have been known
&dquo;courts have the inherent power to
to show favoritism at the expense of
provide themselves with the appro-
science. As a recent attempt to secure
priate instruments required for the
impartial information for the court
performance of their duties. &dquo; (3) That
should be mentioned the 1927 Colorado
it is likewise the duty of the prosecuting
law (7) making mandatory the defend-
officer, as the representative of the
ant’s commitment to a state hospital
people, to present all the pertinent
for observation whenever the plea of
facts relating to the defendant’s men-
insanity is introduced.
tality as well as to his acts is a theory
Many other proposals have been
...

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