The Insanity Defense

By Tim Robertson

http://www.oocities.org/tarob01/

The history of expert witness testimony is a long and complicated story. Medical doctors and psychiatrists once dominated the field, but since the beginning of the twentieth century, psychologists have increasingly entered the world of courtroom litigation. Records and court transcripts are sometimes not available to trace an accurate history, particularly records dated before and during the nineteenth century. However, it probably is accurate to begin tracing the history of expert witnesses to areas of mental competence and the insanity defense. NOTE 1a

Insanity is commonly referred to as a medical condition, but it is not. It is a legal term meaning "unsound mind." Insanity is an important legal definition for many different reasons. Courts often decide whether a litigant is of sound mind and good judgment if they have left a will and testament, or are recommended for hospitalization, or if they have been involved in a capital crime, such as murder. People with mental disabilities or people confined to mental hospitals may be judged sane for the purpose of writing a last will and testament, or requesting final wishes. NOTE 1b

What is right and what is wrong? Academia has debated right versus wrong for centuries. "A person is morally responsible if, with knowledge of the circumstances, and the absence of external compulsion, he deliberately chooses to commit a forbidden act." This Aristotle quote paraphrases many modern day insanity laws in one sentence. The "knowledge of circumstances", no "external" or environmental forces, and choosing to freely commit a violent act, or other behavior, that is known to be wrong or forbidden. NOTE 2

Roman penal codes allowed expert witnesses to offer information concerning a person's mental state. However, in ancient times the study of the mind was a novelty, and doctors had little or no expertise relating to psychological disorders. Most were not thought of as knowledgeable in areas relating to personal problems. Consequently, doctors were not acceptable witnesses, but family members and neighbors were allowed to testify. Presumably, family members and neighbors best knew the defendant and could adequately judge a defendant's state of mind before, during and after the crime.

One major change in western attitudes towards the mentally ill and insanity came with the Roman Justinian code. The code officially shifted legal matters, and punishment resulting from prosecution away from the Catholic Church. Before the code was written, most defendants were judged and punished according to biblical scriptures, and most of the time, those were harsh and unforgiving. NOTE 3

A famous example that demonstrates how the insanity defense might apply is the parable of Jesus and his executioners. Luke, a disciple, told of Jesus' last words on the cross. "Forgive them Father, for they know not what they do." Theoretically, if Jesus' executioners had known that they were crucifying the Son of God, which Jesus acknowledged in His prayer they did not, then they would be liable for their offense. However, as unbelievers, their actions were a "factual mistake." Expert witnesses could testify that they believed what they were doing was right. If their actions had been caused by a mental illness, or they did not know the difference between right and wrong, then that would've been grounds for an insanity defense. NOTE 4

The contemporary criminal justice system and insanity laws vary from jurisdiction to jurisdiction. There is no uniform or national penal code for deciding the issue of insanity in every jurisdiction. For example, some state statutes provide that a defendant is insane if he or she does not know the difference between right from wrong at the time of an offense. The right and wrong standard is known as the M'Naghten rule. Some states, such as Texas and Florida, have notoriously strict insanity statutes based on the M'Naghten rule. Other states, like California, are more lenient, and judge a person insane if he or she had only an irresistible impulse that they were unable to control.

Insanity pleas are rare, and successful insanity defenses are more rare. The future of the insanity defense doesn&apost appear to be very bright. Before the 1980's, juries tended to listen to expert witnesses and were often sympathetic to a defendant's claim of mental illnesses. They often granted a "benefit of the doubt" when reaching their verdict and rendering punishment. However, the highly publicized and emotionally charged trial of John Hinckley changed that. Hinckley was paranoid and suffered from severe mental delusions. For example, he was "fascinated" by Hollywood and obsessed with various movie stars. It was revealed during his trial that he had stalked movie actress Jody Foster, and had even hatched plans for the two to eventually marry. NOTE 6

Hinckley tried to assassinate President Ronald Reagan in 1981. In addition to Reagan, another victim, James Brady, was left paralyzed from the waist down. Hinckley pled not guilty by reason of insanity and was acquitted at his trial when several psychiatrists and psychologists testified on his behalf. Every expert witness said that Hinckley suffered various mental illnesses, and one even stated that Hinckley was beyond a shadow of a doubt "absolutely" insane. The jury agreed with the experts, but the public did not. The word "absolute", used by one of the psychiatrists, would later be included in the reform legislation passed by Congress as a swipe at the expert witnesses.

The "not guilty" verdict by reason of insanity in the 1982 trial stunned many Americans. The public outrage following the Hinckley's acquittal resulted in the United States Congress passing legislation that supposedly "reformed" the insanity defense. The reform legislation titled Insanity Defense Reform Act, made it more difficult for criminal defendants to be found insane. At the federal level, the legislation prohibited expert witnesses, such as psychologists and psychiatrists, from offering concrete opinions about whether a criminal defendant was sane or insane. There were no more "absolutes" and, "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto." NOTE 7a

The reform legislation has complicated matters for expert witnesses. Experts may now only testify as to whether or not the defendant possessed or possesses a certain mental illness. They may not offer an opinion concerning whether or not the defendant's crime was caused by any particular mental illness. Even if it is blatantly obvious that the disease or mental illness contributed to the defendant's crime, the expert may not testify as such in the courtroom, rendering his or her expert testimony practically useless.

Prior to the Insanity Defense Reform Act, Federal prosecutors had the burden of disproving insanity; now the burden rests with the defense and expert witnesses to prove insanity. The federal legislation brought the U.S. penal code in line with many states, and it is now very similar to the M'Naghten standard. A recent example of the M'Naghten rule is the Andrea Yates case in Houston, Texas. Yates was charged with murdering her five children by drowning them in a bathtub. She pled guilty by reason of insanity.8 The jury rejected Yate's insanity plea and convicted her on five counts of first-degree murder. She was sentenced to life in prison without the possibility of parole. NOTE 7b

Almost a dozen psychologists and psychiatrists qualified as expert witnesses, and all testified that Yates suffered from paranoid schizophrenia and was insane when she drowned her five children. A prison psychiatrist employed by the state of Texas testified as a defense expert and claimed that Yates didn't know the difference between right and wrong when she committed the horrible murders. He even testified that Yates heard "voices" from God that told her to murder her five children.

Why did the jury disregard the expert testimony and convict Yates? The verdict was part of a growing trend in American Jurisprudence. Following the Hinckley trial, jurors have been less willing to consider an insanity defense, regardless of the number of expert witnesses. Less than one percent of all criminal defendants in the United States plead insanity, and an even smaller number successfully obtain an insanity verdict. NOTE 5

There appears to be no difference between psychologists and psychiatrists in regard to the respect that jurors give their testimony. Increasingly, juries are disregarding expert testimony from both psychologists and psychiatrists alike. Consequently, juries are rejecting the insanity defense as a legitimate explanation for a defendant's criminal behavior. NOTE 9

INSANITY DEFENSE ORIGINS

The insanity defense has several European origins. It is generally recognized that the modern United States insanity defense originated in Great Britain in 1843. In 1843, Daniel M'Naghten shot and killed the private secretary of the British Prime Minister. M'Naghten suffered from paranoid delusions and believed the Prime Minister and the Tory party were involved in a conspiracy to destroy him. Nine expert witnesses, mostly psychiatrists, testified that M'Naghten was insane at the time of the murder, and was unable to determine right from wrong. He was eventually found responsible, but was acquitted by reason of insanity. He spent the rest of his life in an asylum for the criminally insane. NOTE 10

Similar to the Hinckley trial, the British public was outraged by the verdict and demanded legislative reform. The British House of Lords immediately passed a new set of rigid standards that every defendant must meet in order to be declared insane. A defendant was considered sane until found otherwise by a jury. To qualify as insane under the new standards the defense had to show that the defendant suffered from a mental impairment. The impairment made him of her unable to understand that what they were doing during the commission of a crime was wrong.

Many U.S. states use the M'Naghten standard for determining the sanity of a defendant. However, M'Naghten has received its fair share of criticism. It seemed that M'Naghten standards were too rigid, making it difficult, if not impossible for experts to determine if anyone could qualify as criminally insane. The rule does not stipulate that there are people who know the difference between right and wrong, but are unable to control their actions. Many states have added considerations for those people, and have adopted an "irresistible impulse" clause in the M'Naghten standard. One major problem with irresistible impulse defense is that it is difficult for expert witnesses to determine whether or not a person lacked the ability to resist their impulse or if they simply did not want to resist. NOTE 11

Regardless, reform came at the federal level in 1954. Monte Durham was declared unfit for active duty military service, and was discharged from the United States Navy after a psychiatric examination revealed a severe personality disorder. Durham accumulated an extensive criminal record following his discharge, including numerous convictions for writing bad checks, and grand theft auto. In prison, his behavior was sinister enough to earn him another psychiatric examination. He was determined to be of "unsound mind" and transferred to a federal mental hospital, since automobile theft was considered a federal crime during his trial and conviction. NOTE 12

Durham was released from prison several times and each time he violated probation by committing another felony robbery. Consequently, he was repeatedly charged and ordered to stand trial. Durham pleaded insanity, but was convicted at his final trial. His attorney immediately appealed the verdict, arguing that the guidelines for a finding of insanity were archaic. The appellate court judge used the case to strike a blow to the M'Naghten standard, at least at the federal level.

The appellate judge cited several opinions from other judges in various circuits across the United States. "Everyone concedes that the present legal definition of insanity has little relation to the truths of mental life." The appellate court overturned the lower court decision and in the process set a new precedent, the Durham rule. A defendant is not criminally responsible if his or her actions are the result of a mental disease or mental defect.

Many federal court circuits quickly adopted the Durham rule, but it had virtually no impact on the fifty state courts. State law is not required to follow any federal precedent, and as a consequence, the majority of states have mostly ignored the new standard and continue to use the old, and outdated M'Naghten standard of insanity.

EXPERT WITNESS TESTIMONY

Expert witnesses were common in German courtrooms during the middle and late nineteenth century. The psychology profession did not exist, so medical doctors and psychiatrists provided testimony related to a criminal defendant's mental state. Most medical doctors had no advanced training that allowed them to offer a diagnosis or treat any patients. Medical education alone qualified them as an expert witness in the courtroom. Psychiatrists provided treatment, if there was any, to the mentally ill. Most worked in asylums and other state managed hospitals where conditions were mostly deplorable, and resources were scarce. 13.

Anecdotal evidence revealed that patients were often left for days with out food, water or medical treatment. When treatment was administered, it was often cruel and barbaric. Blood letting procedures and human body stretching in torture racks was common. Early physicians had often answered questions about a defendant's state of mind during the commission of a crime, but they had no specific training in mental health issues. Consequently, their testimony was usually worthless in diagnosing mental illness. Most testimony did little to assist juries and judges in reaching a decision that was at best, very suspect. 13.

Kraft Ebing13 was a pioneer in the field of psychiatry and expert witness testimony. He worked to improve psychiatric knowledge, which he felt was lacking among most medical doctors. Many times, a physician's inaccurate, or unknowledgable testimony sent defendants to lunatic asylums for many years when they weren't even sick or guilty of a crime.

Psychiatry blossomed during the latter part of the nineteenth century. Medical doctors that specialized in treating mental illnesses worked in asylums, and were isolated from the medical profession. Living and working conditions in most asylums were deplorable, which is why many were understaffed and over crowded. They became society's final destination for the poor, disabled and elderly.

Peers called early psychiatrists alienists because most doctors had little respect for the new discipline. Many patients received treatment for some form of sexual dysfunction; the majority of medical doctors viewed those types of disorders as moral deficiencies, and not mental disorders. By the end of the nineteenth century that had changed, sexual illnesses were being treated as diseases, and not as a personal sin or crime.

More sexual disorders were criminalized in Germany and other European countries. For example, laws banning homosexuality, and public indecency, which was a broad area to define, resulted in many prosecutions. Sodomy, prostitution and age of consent were added to many European penal codes. As a result, more and more people were brought to court to stand trial. Law enforcement became heavily involved in sexual matters and the need for expert witnesses increased dramatically. Medical doctors helped fill this role by offering biological answers to meet this growing area of concern.13

Before massive criminalization, only medical doctors were needed as expert witnesses. They routinely testified about rape and sodomy, and other violent acts. They offered physical examinations into evidence. For example, they did many anal examinations to determine whether defendants, mostly men, had engaged in anal sex, which was a newly declared illegal sex act. It was not until the latter part of the nineteenth century that doctors began to make a connection between sexual deviance and mental illness. Many doctors believed that homosexuality, rape and other sex crimes were the product of insanity or some other mental illness.13

During the early nineteenth century, expert witnesses were testifying about physical characteristics to prove an illegal "act" had occurred.13 Toward the latter part of the nineteenth century and early twentieth century, more and more expert witnesses were testifying about whether a mental illness had caused a defendant to commit an illegal act. The role of the expert was now to explain why something illegal had happened, instead of proving that something illegal had happened.

Throughout the nineteenth century alienists13 continued to push for the establishment of psychiatry as a natural science, separate from medicine. Psychiatrists, and consequently, expert witnesses should be professionally trained, and not lay medical people. By the mid-1860's they had persuaded the president of the University of Leipzig in Germany to establish a psychiatry chair, which brought increased respect for the psychiatry profession. Other universities in Germany and Austria followed Leipzig's example and created their own psychiatry departments.

PSYCHOLOGY IS A SCIENCE

Forensic psychology uses psychological principles to solve legal and ethical dilemmas. It is believed that the first expert witnesses in forensic psychology were a group of university students.14 In 1879, McKeen Cattell gave a lecture to his students about the accuracy of recalled memories and eyewitness testimony. Actually, it was more like an experiment. He asked them several questions that might be similar to questions asked in a court of law such as, "What was the weather like one week ago today?" and "In which direction do the seeds of an apple point?"15

Each student was allowed thirty seconds to think about the questions and write their answers. They were also asked how certain they were that the answers they had given were correct; either very certain, somewhat certain or not very certain. What he found was surprising. Environmental conditions can affect the memory of eyewitnesses when they are asked to recall events later in court. For example, answers were equally distributed among possible responses when the month was March, when all kinds of weather conditions were possible. Answers were less distributed during warm and cold months, such as January and July, when it is usually cold or warm.

The accuracy of courtroom testimony had already been questioned prior to Catell's study. Many people felt that attorneys could void expert witness' testimony simply by manipulating questions. "An unscrupulous attorney can discredit the statements of a truthful witness by cunningly selected questions. The jury or at least the judge should know how far errors in recollection are normal and how they vary under different conditions"14

Psychology and the legal system often interact, and psychologists are called upon to give testimony and advice. It is now commonplace for psychologists and psychiatrists to give expert testimony in courtrooms throughout the United States. As the legal system has evolved, so too, has the respect given to the psychology profession, but it was not en easy road.

When practitioners like Cattell took psychology into an applied setting in courtroom litigation and witness testimony most researchers were interested in psychology for only the sake of learning, and gaining knowledge.16 They had little or no interest in using their findings to solve problems, or apply it to any particular discipline, such as forensics. The leading psychologist of the late nineteenth century, Wilhelm Wundt, had little use for applied psychology in the courtroom. He thought that mixing psychology with legal matters would be disastrous for a new discipline that was still considered a pseudo science among many professionals.

William James also ignored the naysayers. He was one of the few psychologists, like Cattell, that believed psychology should be useful in helping solve practical problems. Psychology was useful, and he helped prove it by applying it to the legal system. James invited Hugo Munsterberg to direct the psychology laboratory at Harvard University in 1892.17 Although most people credit Cattell for fostering the birth of forensic psychology, Munsterberg is generally credited with bringing it into widespread use and acceptance. He frequently published his articles in popular magazines about the usefulness of psychology. He ignored scholarly journals and because of that he was isolated from most of his colleagues. Due to his avoidance of publishing in peer reviewed magazines, and partly because of his German descent, Munsterberg's isolation increased after the United States' entrance into World War II.

Following several attacks from prominent psychologists about his pseudo scientific methods of legal psychology, Munsterberg published his now famous book, On the Witness Stand (1908). In his book, Munsterberg defended his unorthodox practices and argued that the time was "ripe" for psychology to tackle the needs of the legal system. If psychology was ever going to be taken seriously, then it had to be involved in "serious" subjects, such as courtroom litigation.

In 1914, Munsterberg created a firestorm when he published a study on group decision making by jury members, "The Mind of the Juryman." He used male and female participants from Harvard and Radcliffe Universities.18 He found that female students were less certain in their final decision making than male students and they would be more easily manipulated acting as expert witnesses. He concluded that, "the psychologist has every reason to be satisfied with the jury system as long as women are kept out of it."19

Testimony from psychologists in the United States was unheard during the early twentieth century. However, in Europe, particularly in mainland Europe, psychologists had been testifying and offering medical opinions in the legal system for many years. For example, in 1911 several psychologists testified in a Belgian murder trial of a man accused of raping and killing a nine year old girl. Two friend's of the victim apparently saw the murderer, but both witnesses gave condratictory accounts of what happened.

The defense retained psychologist J. Varendock as an expert witness. He designed a series of experiments designed to test the accuracy of the memory recall of the two child witnesses. He based his experiments on information collected during the preliminary hearing. He tested children approximately the same age as the actual witnesses and found that their memory recall of events was often inaccurate. The experiment on memory recall was not important in its own right, except that it helped break new ground in legal history. For one of the first times, a jury was allowed to consider evidence collected from experimental psychological research in their decision.20

Although Varendock conducted the experiment that was used in the trial, he was opposed to allowing children to testify as witnesses in criminal proceedings. He believed the experiment was correct, and children did not make effective witnesses, because they often were wrong in their recollections of past events. However, Alfred Binet, who conducted his own research on the accurateness of recalled memories by child witnesses, believed that children were often manipulated by leading and suggestive questions from defense and prosecution counsels, and children did not have any natural fallacy of children's ability to interpret what had actually happened.

Until the early 1920's, expert testimony from psychologists, if their testimony was even allowed into evidence, was confined to only criminal cases. However, in 1922 Karl Marbe became the first psychologist to testify in a civil case. He was a psychology professor at the University of Wurzburg. He was called as an expert witness to testify about a train wreck that killed and injured several people. Several victims and their families had filed a lawsuit against the rail line, similar to modern class action litigation. The issue was whether or not alcohol had any effect on the mental state of the train engineer and on the reaction time of the other crewmen applying the brakes.

Drawing upon earlier experiments by Wundt and Titchner, and several of his own experiments, Marbe testified that the train engineers could not have stopped or slowed the train in time to prevent the accident, and were not at fault. Marbe also testified in many sexual abuse cases. One particular case involved several German schoolgirls who had accused their teacher of molesting and abusing them. Marbe presented evidence about the inaccuracies of testimony from children, and the teacher was acquitted.14

In the years following World War II, forensic psychology remained largely dormant. However, William Marston was the first person to receive a faculty appointment as Professor of Legal Psychology at American University in 1922. Marston was a student of Munsterberg, and had several different career fields. Before concentrating specifically on psychology, he created and drew the "Wonder Woman" comic strip.

While working at Radcliffe College, Marston discovered a relationship between systolic blood pressure and lying.21 His discovery later became the modern day polygraph examination, and was his major contribution to the field of forensic psychology. He routinely worked with police agencies, and qualified as an expert witness in numerous criminal cases where his testimony helped acquit and convict several defendants.

Martson added to Cattell's work and conducted his own studies about witness testimony and its' impact on the jury system. He found that written evidence was more persuasive to juries than oral testimony.22 He also found that witnesses who narrated events in their own words to juries were more believable than if they only answered questions under direct, and cross examination.

American psychologists have given expert witness testimony since the early 1920's, primarily in civil courts.14 Trademark23 infringement litigation attorneys regularly used psychological research when trying their cases. It was rarely given by direct testimony on the witness stand. Instead, attorneys introduced the research to the jury and allowed them to deduce whether or not the information was valid.

Allowing psychologists to testify directly on the witness stand was a taboo practice by psychiatrists and medical professionals, who were considered "experts" by the legal community.14 Louisell24 believes that expert testimony from psychologists was rarer in criminal proceedings than civil courts. Only appellate transcripts are published. Transcripts from lower courts are available only by contacting the court reporter, and the decision to provide transcripts is the reporters alone. Because of the unavailability of lower court transcripts14, it is impossible to determine what testimony psychologists gave, unless the case was appealed and appellate judges cited the testimony in their decision.

Criminal trial judges routinely rejected testimony from psychologists regarding a defendant's mental state. In Odom vs. State, the defendant entered an insanity plea, but was tried and convicted of murder. Dr. Humphrey, a psychologist, had prepared testimony on behalf of the defendant, but the trial judge refused to allow him to testify, even though he had treated many insane patients. The appellate court agreed with the decision. "The general rule being that only persons licensed to practice medicine and the profession can testify as experts on the question of sanity, a lay witness who had handled a great many insane persons, had observed and studied them, in the course of their transfer by him between different points in the state, and who had later read medical books on the subject, was not qualified as an expert to testify on the question of sanity."24, 25

It is noted that the court struck a severe blow to psychologists by not allowing testimony regarding insanity. However, the court did allow lay people an opportunity to testify regarding the mental state of their acquaintance. "To render a non expert qualified to testify as to anothers' sanity, the witness must be shown to have had an acquaintance with the subject sufficiently intimate and long to enable him to form a reasonably accurate and trustworthy opinion as to the mental condition of the subject." 24

Odom vs. State was a setback, but there were breakthroughs in the 1920's for psychologists as expert witnesses. Attorneys grew increasingly interested in forensic psychology and sought the advice of psychologists in many legal matters, both criminal and civil. State vs. Driver26b was probably the first case in which a psychologist qualified as an expert witness in a criminal proceeding. In 1920, W. Driver was convicted of attempted rape of a twelve-year old girl, and sentenced to one year in prison. A trial court in West Virginia accepted a staff psychologist from the bureau of juvenile research as an expert witness. He testified about his knowledge of juvenile delinquency. The defense sought to discredit the girl's testimony by presenting evidence showing that she was a "moron" and a thus prone to lying. However, the court did not accept the psychologist's testimony pertaining to psychological exams that measured the girl's IQ. The West Virginia Supreme Court agreed. 26a

After another setback in State v. Driver, it was not until the 1940's and 1950's that psychologists became regular expert witnesses in courtrooms. This span of time is generally recognized as the decade that psychology became "professionalized."14 Large numbers of veterans needed medical and psychological treatment when World War II ended. The U.S. government helped meet this growing need by granting large sums of money to colleges and universities to train psychologists.

Post World War II witnessed psychology gain greater acceptance in the legal system. Appellate courts routinely accepted testimony from psychologists relating to mental responsibility in criminal cases. One of the first breakthroughs came in Michigan. In People vs. Hawthorne,27 the defendant was accused of killing his wife's lover and pleaded not guilty by reason of insanity. However, he was later convicted for the killing.

During his trial, Hawthorne requested that a Professor of Psychology testify on his behalf. The trial judge refused to allow the jury to hear the testimony. The defendant appealed, and stated that the judge had erred in not allowing the psychologist to testify. The Michigan Supreme Court agreed and overturned the conviction. The general qualifications for expert witnesses were stated as, "The determination of whether a witness has the qualifications of an expert is a question for the trial judge and his discretion in the matter is only interfered with by the Supreme Court in the event it is abused."

It was the judgment of the Supreme Court that the trial judge had made an error. The question of psychologists testifying as expert witnesses had finally been addressed and accepted. "When a non medical person is offered as an expert on subjects in the orbit of medical science, the trial court is but on guard and should take greater precaution in the preliminary inquiry to determine the witness's qualifications and the extent of his knowledge than might be necessary when a graduate of a medical school is proposed."

However, this was only a partial victory. The Supreme Court did not agree that psychologists were experts in the area of insanity. They found that only medical doctors had the expertise to make that judgment. The psychologist's educational background included several degrees, Bachelor of Arts, Master of Arts, Bachelor of Divinity, Doctor of Philosophy, and Doctor of Psychology. He had studied at numerous colleges and had lectured at four of them. He taught courses in psychology, and had written many books and articles on the subject of insanity. He had also administered many different types of "mental tests" to his students and his patients. 28

He was obviously an expert in his field. However, justices did not consider insanity a relevant psychological domain. "Insanity, however, is held to be a disease, and, therefore, comes within the realm of medical science, which comprises the study and treatment of disease. Only physicians can qualify to answer hypothetical questions as experts in such science. The court was not in error in excluding the testimony sought to be offered."

The trial court's error came in not allowing the psychologist to testify as an expert witness on the "general" subject of psychology and insanity. Knowledge (testimony) about insanity from a psychologist should not be considered as lesser than that of a medical doctor, so long as it was not presented as "medical" fact.

At the federal level, the United States Court of Appeals allowed a psychologist to offer expert testimony related to a medical condition in a civil case. Hidden argue that he was disabled by a medical condition and was prevented from gaining employment; thus he argued that deserved the disability benefits stated in his policy. A clinical psychologist administered projective tests and testified on his behalf. Attorneys for the defendant objected that the psychologist did not qualify as an expert witness. The trial judge agreed and ordered the testimony to be stricken from the record. The plaintiff appealed to the Court of Appeals and the testimony regarding his mental state was allowed to stand. 29

Many psychologists during the 1950's were involved in litigation to desegregate public school systems across the United States. Many psychologists worked with attorneys on class action suits in many southern states and at the federal level. David Krech and Helen Trager furnished research about racial attitudes that attorneys used in legal briefs that sought to bring equal status to minorities. They were not allowed to testify, but their research was presented, and it became a valuable asset in the struggle for social justice that was largely achieved in the courtroom. 30a, 30b

Kenneth Clark and Mamie Clark perhaps conducted the most famous experiment ever introduced as expert testimony in a racial desegregation lawsuit. The experiment was a coloring, and a doll test. African American children were given sheets of paper with drawings of apples, oranges, a mice, a boy and a girl. They also gave them boxes of crayons with the colors brown, black, yellow, white, pink, and tan. The children were to pretend to be a little girl or boy in the drawing, and color the picture the same color as they were. 31

The children were told to color the opposite gendered picture any color they liked. The results proved a stunning racial bias among the children. African American children with a light skin complexion colored the picture correctly. Many of the darker complexioned African American children colored the picture yellow or white. A few children chose green or red. The Clarks concluded that the children's choice of colors indicated emotional worry about their own skin color. They hypothesized that the children wanted to be white, so they pretended to be white in the drawings.

The doll test asked the children to select either a white or black doll. Over half of the children chose the white doll instead of the black doll. After the children made their selections, they were asked to give the researcher the black doll, and then the white doll. The experimenters did this to be certain that the children were able to identify the color difference between the two dolls.

Triers entered the Clark's doll research into evidence at the United States Supreme Court, and it aided justices in reaching their historic 1954 Brown v. Board of Education ruling. 30,31a

The sudden popularity of psychologists qualifying as expert witnesses was met with bitter resistance. In 1954, the Council of the American Psychiatric Association, and the American Medical Association passed a joint resolution declaring that only physicians and "medical professionals" were legitimate mental health expert witnesses. The resolution stated that psychologists should be allowed to participate in the legal process, and offer medical opinions, but only if their testimony was confirmed by a medical "authority" in the particular area concerned. The resolution was a damaging setback for psychologists because many trial judges accepted the psychiatrist's arguments for several years. 32

In 1962, Jenkins v. United States helped reverse the APA and the AMA's trend setting resolution. The United States Court of Appeals rejected prosecution's arguments against qualifying psychologists as mental health expert witnesses. The court was divided and the decision was not unanimous, but the ruling was validated upon subsequent appeal. Since then, most federal and state jurisdictions recognize the case as precedent for allowing psychologists to testify as expert witnesses. 33

ROLE OF EXPERT WITNESSES

What is the role of an expert witness? Expert witnesses are used to aid in judicial litigation, and have always been necessarily involved in courtroom litigation. They are often called upon to offer an opinion about a defendant's state of mind during a crime. Witnesses should be prepared to offer facts about an individual's mental health, and relate those facts in an understandable manner to the jury. The decisions that judges and juries made regarding why a particular person committed a particular crime have often been connected to the mental capacity, or lack thereof, of the individual that perpetrated the crime.

Ethical concerns are important considerations of expert witness testimony. Jury verdicts are often influenced by the testimony of an expert witness. Witnesses should be competent, impartial and knowledgeable in the subject matter that they are testifying. Motivational influences also should be considered concerning the weight that jurors give expert witness testimony.

One example of tainted expert witness testimony was the case of Thomas Barefoot. Barefoot was convicted of killing a Texas police officer and received the death penalty. He was later executed. During Barefoot's trial, psychologist James Grigson qualified as an expert witness and testified for the prosecution. He told the jury that Barefoot had a "100 percent and absolute" chance of committing a violent crime in the future. Interestingly, Grigson was able to offer that judgment with out examining Barefoot. Instead, he had used a make believe case study with a criminal background matching Barefoot. 34

During his career as an expert witness, Grigson earned a justifiably unsavory reputation as an expert for sale to the highest bidder. He testified in one hundred and twenty capital murder cases in Texas. In all the cases in which he testified, all but nine defendants were convicted and received the death penalty. In every proceeding, without exception, Grigson testified that the defendant posed a future risk of committing a violent crime with out ever giving a physical or psychological examination. After Barefoot's unsuccessful appeal to the United States Supreme Court, the American Psychiatric Association sided with the minority opinion of the Supreme Court and revoked Grigson's membership. Justice Harry Blackmun wrote, " The specious testimony of a psychiatrist, colored in the eyes of an impressionable jury by the inevitable untouchability of a medical specialist's words, equates with death itself." 35

How does a person qualify as an expert witness? In the early days, there were no specific educational standards or ethical considerations to qualify a person as an expert witness. In the United States the first standard for evaluating the validity of expert testimony and expert witnesses was the Frye test.36 The Frye test, some times referred to as the Frye standard, was based on a 1923 case, Frye v. the United States.

The Frye standard held that scientific or expert witness testimony must have gained general acceptance among peers in the particular field to which it belonged. One disadvantage of Frye was that it often ignored new ideas and new scientific findings, because the discoveries had yet to be replicated by a majority of researchers or professionals.36

Most trial judges relied upon the Frye standard as the criteria for determining the suitability of expert witness testimony. In 1923, a criminal defendant, Frye, stood trial on charges of murder. He voluntarily took a polygraph examination, and the results showed his answers were not deceitful. Frye's counsel offered the examination results into evidence. Polygraph tests were a novelty during this time, and their reliability had not been established. The accuracy of a polygraph examination was hotly debated, and even today it comes under intense scrutiny. 37

The trial judge did not allow the jury to consider the evidence on the basis that it was "unsound" and "unproven." Frye was later convicted and appealed the verdict to the United States Supreme Court, but it was denied. "The rule is that the opinions of experts or skilled witnesses are admissible in evidence in those cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of a science, art, or trade as to require a previous habit or experience or study in it, in order to acquire a knowledge of it. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence." 36

The Frye test called for scientific evidence to be "generally accepted" in the scientific community to which it belonged. Dr. Grigson's practice of offering testimony concerning a defendant's "absolute" certainty of committing a future crime did not meet the Frye test and should have been rejected.

The Frye standard had two main problems. First, it restricted new evidence that might be scientifically sound, but not "generally accepted" in the scientific community. A new discovery might be valid, but may yet to have been recognized and "accepted" by peer review. Second, it was some times less restrictive of new theories and practices, or evidence that was familiar to many professionals, but was scientifically unsound.

In 1993, Daubert vs. Merrell Dow Pharmaceuticals brought sweeping changes to expert witness testimony in federal courtrooms. The Daubert decision changed the rules. It did not apply to state judicial proceedings, although many states have adopted similar rules for judging expert witness testimony. The United States Supreme Court ruled that expert testimony introduced as "scientific fact" must be valid in the particular area of science that it was based on. The decision gave trial judges sweeping authority to decide whether expert testimony was valid according to scientific standards. 38

Deciding whether or not expert testimony should be allowed as evidence takes years of experience. The Daubert standard requires judges to be knowledgeable in the scientific method, and the difference between correlation and experimental replicability. Judges should also be able to interpret the many biases, set aside their own bias, and interpret different agendas that many expert witnesses, such as Grigson, some times bring into the courtroom.

The Daubert ruling offered four principles that judges should use to determine the validity of expert testimony. Has the expert's theory been tested, and proven to be accurate? Has the expert evidence been "peer reviewed" by professionals in a scientific discipline related to the testimony? Is the expert evidence reliable and documented? Lastly, has the scientific community generally accepted the expert's evidence or theory? Do they believe the results are accurate and generally true? Criteria that may qualify a person as an expert witness are education, work experience and life experience. An expert's testimony should be scientific, technical, or specialized knowledge.38

DIMINISHED CAPACITY

Competency is often confused with insanity, but the two are completely separate legal terms. Competency has nothing to do with a defendant's state mind at the time of ACTUS REUS. In 1960, the Supreme Court determined that a defendant is competent to stand trial if they are able to adequately communicate with their attorney with a reasonable degree of understanding, and if they understand the nature of the charges with a reasonable degree of understanding. 39

Before 1960, there was no uniformly accepted standard for judging the competency of a defendant to stand trial. At the federal level, that changed with Dusky v. the United States. Th Dusky decision affirmed a Psychologist's right to testify, and offer an opinion about a defendant's mental competence. Many states later adopted Dusky in forming their own statutes concerning mental competency. 39

In 1960, diminished capacity brought much needed reform to the American legal system. Similar to the insanity defense, the psycho-legal community has collided many times over diminished capacity. In fact, diminished capacity and insanity have often been confused with one another, but legally the two are dissimilar and distinguishable from each other. Insanity is caused by a mental illness, diminished capacity occurs when a defendant's state of mind is altered by a foreign substance, such as drugs or alcohol, or a temporary, acute medical illness. Expert witnesses must offer evidence that the substance sufficiently altered the defendant's state of mind to cause a particular crime. Juries decide whether or not a defendant suffered diminished capacity during the commission of a particular crime. Judges describe the requirements for a diminished capacity defense after closing arguments, then the jury deliberates as to whether or not the defendant had limited or diminished mental capacity under the provided guidelines. 40

Two elements must be present in criminal proceedings in order to affix guilt, or assign blame to a defendant. ACTUS REUS and MENS REA. ACTUS REUS is a willful illegal act, I.E., crime. An unwilling participant is not guilty of a crime because the intent is lacking. MENS REA is the intent, volition, or state of a person's mind, and it is the area that experts are asked to make a judgment about.

Willfully committing a crime by preparation and planning, and committing a crime through acts of negligence are separate intents, i.e., first degree murder and manslaughter. Expert witnesses are often asked, "What was the intent of the defendant during the commission of the crime?" or "Were the defendant's actions accidental, or were they intentional?"

ACTUS REUS

ACTUS REUS is actual criminal act, such as a burglary or physical assault. A crime can not exist with out a criminal act. Each element may exist with out the other being present, but guilt and responsibility can not exist with out the MENS REA element. If a defendant did not intend to harm another person, then how can they be guilty of a crime? For example, even if an individual committed a crime, ACTUS REUS, that does not necessarily imply guilt, unless there was a specific criminal intention of committing the crime before it occurred.

California v. Charles Manson California Supreme Court appeal is a failed example of a diminished capacity defense. 41

In 1969, Los Angeles police were dispatched to the residence of movie producer Roman Polanski, and his wife, actress Sharon Tate. Upon arriving, police were welcomed by a horrifyingly gruesome crime scene. Steven Parent, who happened to be driving by the residence while the murderers were there, was shot to death in his vehicle. Further up the driveway were the badly mutilated bodies of Abigail Folger and her lover Vytek Frykowski. The bodies of Sharon Tate and her former lover Jay Seibring were found in the residence living room. A rope around their necks tied their bodies together. Polanski was traveling in Europe and was not harmed in the incident. No suspects were immediately identified. 39

The following day, police responded to a reported double homicide at the Leno and Rosemary LaBianca residence. The couple suffered numerous knife wounds, and were found dead in their home. The LaBianca murders appeared to have the same modus operandi as the Tate homicides of the previous night. An investigation was completed and the seven homicides were identified as being related to each other. Both crimes were referred to as the Tate-LaBianca murders.

Cult leader Charles Manson was arrested and indicted on seven first-degree murder counts, one count of conspiracy to commit murder, felony breaking and entering and robbery. Susan Atkins, Patricia Krenwenkil, Linda Kasabian, Leslie Van Houten and Chalres Watson also were indicted on first-degree murder counts and conspiracy to commit murder. Leslie Van Houten was not involved in the Tate murders, but participated in the LaBianca massacre. She was indicted on two first-degree murder counts, and conspiracy to commit murder. All defendants received the death penalty for their participation in the crimes. Capital punishment was later declared unconstitutional in 1979, and all defendant's sentences were commuted to life in prison. 42

Psychiatrists testified as expert witnesses concerning habitual drug usage and its negative psychological effects, but acknowledged that the defendants had not used drugs during the nights of the ravenous murder spree, which damaged their diminished capacity defense. The defense had hoped the testimony would show that illegal substances influenced the defendant's mental capacity during the commission of the crimes. Accordingly, defense attorneys asked the trial judge to offer the jury an instruction on diminished capacity.

Two psychiatrists qualified as expert witnesses and testified about drug usage by one specific member of the cult who was not a defendant in the case. During the trial, attorneys never offered expert psychiatric testimony related to a specific defendant, rather, they presented testimony that generalized the effects of the substance, LSD. The judge refused to instruct the jury to consider a diminished capacity defense.

Every defendant was convicted on all counts. The appellant's attorneys cited this testimony and argued that the jury should have been allowed to consider the effects of a foreign substance on the defendant's mental state. However, the California Court of Appeals ruled that expert witnesses must offer testimony that showed detriment to a specific defendant, and not a group member.

The appellate ruling had a tremendous impact. Juries and expert witnesses may not make generalizations about an individual's state of mind, or MENS REA, based on the actions, behaviors or habits of one of their peers. For example, although testimony was offered about one specific individual's drug use, juries may not generalize or transfer that person's behavior to other defendants in a murder trial. Furthermore, unless the substance caused an altered state of mind during the commission of a crime, or directly led to a crime, the diminished capacity defense was not applicable as an "after the fact" explanation or defense. Expert testimony concerning drug use several days prior to a crime was deemed not relevant or appropriate.

CONCLUSION

The inclusion of Psychology in the Judicial system has been a long, continuous battle. Even today, people argue the about the validity of expert testimony from psychologists. Pioneers such as Cattell and James fought many harsh criticisms and struggled to make Psychology a respectable discipline that was worthy of study, useful in "everyday life", and practical. Their predictions and efforts have been worthwhile, and are appreciated by modern day forensic psychologists.

The respect given to psychologists by the medical community, including psychiatry and America's legal system has been slow to develop. Expert psychologists testifying as expert witnesses still face the struggle of bringing their knowledge into America's courtrooms.

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42. Charles Manson is serving a life sentence at California's Pelican Bay prison. Linda Kasabian was granted immunity in exchange for her testimony, and all charges against her were dismissed. Charles "Tex" Watson is serving a life sentence at California's Mule Creek prison.