EVERYONE SHALL, UNTIL THE CONTRARY IS PROVED, BE PRESUMED TO BE AND TO HAVE BEEN SANE

• NCJ Number: 66179
• Journal: Canadian Police College Journal Volume: 3 Issue: 3 Dated: (1979) Pages: 237-253
• Author(s): A I MALCOLM
• Date Published: 1979
• Length: 17 pages
• Corporate Author: Canadian Police College Journal
• Publication Format: Article
• Language: English
• Country: Canada
• Note: AN ADDRESS TO THE VANCOUVER INSTITUTE, FEBRUARY 1979

Annotation

A CANADIAN PHYSICIAN CRITICALLY EXAMINES THE ROLE OF EXPERT WITNESSES, ESPECIALLY FORENSIC PSYCHIATRISTS, IN CRIMINAL TRIALS AND CONCLUDES THAT THEIR USE SHOULD BE FURTHER LIMITED.

Abstract

EXPERT WITNESSES RANGE FROM THOSE IN THE HARD SCIENCES TO THOSE, SUCH AS FORENSIC PSYCHIATRISTS, IN THE SOFT SCIENCES. DESPITE THE INCURSION OF PSYCHIATRY INTO COURT PROCEDURES, PSYCHIATRY IS LIMITED IN ITS USEFULNESS THERE. FOR EXAMPLE, THE ISSUE OF MENS REA (GUILTY MIND) RESULTED IN THE DEVELOPMENT OF THE MCNAGHTON RULES IN 1843. ALTHOUGH ESTABLISHING INSANITY IS EASY IN SOME CASES, IN OTHERS ATTEMPTS TO ESTABLISH IT PRODUCE ABSURD CONFRONTATIONS AMONG EXPERTS. THE ADVERSARIAL NATURE OF COURT PROCEEDINGS CONFLICTS WITH PSYCHIATRY'S NATURE. PSYCHIATRISTS ARE ASKED TO GIVE OPINIONS ON THE ACCUSED'S FITNESS TO STAND TRIAL, A WITNESS'S CREDIBILITY, INSANITY, DANGEROUSNESS, THE NATURE OF AUTOMATISM, EFFECTS OF INTOXICATION, AND THE POSSIBILITY THAT A CERTAIN PERSON MIGHT BE EITHER CURED BY TREATMENT OR DETERRED BY IMPRISONMENT. INVOLVEMENT BY PSYCHIATRISTS IN SOME OF THESE AREAS REPRESENTS THE SEEDS OF A FUTURE SOCIETAL HAZARD. IN THE U.S., THE REPLACEMENT OF MCNAGHTON'S RULES WITH THE DURHAM RULES HAS SANCTIONED THE UNWARRANTED INTRUSION INTO THE COURTS OF EXPERTS WHO USURP THE JURY'S FUNCTION. ALTHOUGH THE JURY SYSTEM SEEMS ABSURD AND IRRATIONAL COMPARED TO THE SUPPOSED RATIONALITY OF EXPERTS, IT REPRESENTS AN INVENTION OF SOARING GENIUS. UNFORTUNATELY, EXPERTS HAVE BEEN ALLOWED TO DIMINISH THE JURY'S TRADITIONAL PROMINENCE. JUDGES SHOULD REAFFIRM THE SUPREMACY OF THE JURY. OTHERWISE THE CURRENT TREND COULD LEAD TO A SYSTEM SIMILAR TO THAT IN THE SOVIET UNION. DUE PROCESS IS SERVED BY AN INDEPENDENT JUDICIARY AND JURORS WHO, UNLIKE PSYCHIATRISTS, CANNOT BE BOUGHT. SUCH MEASURES AS COURT APPOINTED PSYCHIATRISTS, DIVERSION THROUGH PRETRIAL USE OF PSYCHIATRISTS, AND SEPARATE TRIALS TO DETERMINE GUILT AND THE SENTENCE, SHOULD BE AVOIDED. THE MCNAGHTON RULE, BASED ON MORAL KNOWLEDGE, SHOULD STAND. (CFW)