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Forensic Psychology - Not Guilty by Reason of Insanity: The Legal Process

Posted Oct 03 2008 12:51pm

The plea of not guilty by reason of insanity (NGRI) is raised most often by the defense. The defendant is generally sent to a facility for the purpose of conducting such an evaluation, though he or she may be evaluated at the correctional facility in which they are being held. Very often such an evaluation will be conducted at an inpatient site (or a correctional facility), although since the 1980s more of these types of evaluations have been conducted in the community. Obviously this would depend on the nature of the charges, as well as the current status of the defendant. In the Federal system, certain facilities within the Bureau of Prisons are designated as forensic sites, and Corvert evaluations, including evaluations for sanity at the time of the offense are conducted at those specific facilities.

One major issue that I have noticed with respect to court-ordered evaluations is the tendency by judges to request an evaluation for both competency to stand trial, as well as sanity at the time of the offense. As I written about here, this is problematic for a couple of reasons. While I understand that the Court’s desire for efficiency (in back conducting both evaluations at the same time does in fact save time), this type of request creates evidentiary problems. In particular, a defendant is not supposed to be implicated by any information obtained during the course of her competency evaluation. No such restriction is present for the purpose of a sanity evaluation. When an evaluator is tasked with conducting both types of evaluations, the evaluator will be assessing the defendant’s understanding of the charges against him or her, as well as asking questions of the defendant about their version of the charges. With respect to a competency evaluation, the specifics will not be included. These details are assessed only for the purpose of determining whether the defendant has an adequate grasp of the relevant issues. No incriminating information is included in the report, nor is it admissible in court. Conversely, incriminating information obtained during the course of a sanity evaluation may be included in the report, depending on the jurisdiction. This is because of the nature of the plea. Specifically, pleading NGRI involves an acknowledgment that the defendant has committed the act, it is just that they are not to be held responsible for such an act.

Conducting these two evaluations at the same time confuses the two issues. Consider, for example, this problem: A competency evaluation is conducted in order to determine whether or not a defendant is capable of proceeding with trial. How can it be assumed the defendant agrees with a plea of NGRI when has not yet been determined they are competent to make such a decision? Another issue: Information gained by a prosecutor or the defense attorney through evaluations conducted in this manner may taint the legal proceedings against the defendant. This is in addition to the problem of ensuring incriminating information is not inappropriately disseminated. What I do when confronted with a court’s request for simultaneous evaluations for both competency and sanity is to provide the court with separate evaluations, as opposed to including all the information and one report. The first report will be the primary report, and include all the information, including the opinion regarding competency. The second report will be an addendum, and include information relevant only to the opinion regarding sanity. Three copies of the main report, as well as three copies of the addendum, are then sent to the judge. The form letter informs the judge of the relevant issue, and advises the judge at the evaluations are being submitted in this manner in order to allow the judge to provide the attorneys with the information related to sanity only after the issue of competency has been resolved. In this way, neither side is provided with information that is in appropriate at that stage of the trial process.

The other significant issue related to the legal process of sanity evaluations has to do with the evaluator offering an opinion on the “ultimate issue.” Unlike competency evaluations, the expert is not allowed to offer an opinion on the ultimate issue i.e.”sane or insane.” Rather, it is the expert’s job to describe for the Court the mental state of the defendant at the time of the alleged offense, including all the relevant variables. Sanity in this case is a legal term, not a psychological one. It is not the job of the evaluator to answer this question. We provide the relevant information regarding the defendant’s mental health functioning at the time of the offense, but is off to the judge to decide whether or not the defendant’s mental health impairment, if any, rises to the level of NGRI. In fact, a mistrial can be declared should an expert witness overstep their bounds with respect to this issue. We provide a clinical opinion, the judge (or jury) makes the legal decision.

The next post on this subject will take a look at the current state of sanity evaluations, and start to get into the process.

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