- Information obtained by interviewing the defendant
or third-party sources (e.g., witnesses, family mem-
bers), even if offered “honestly,” may be less accu-
rate due to deterioration of memory over time.
Concerns About Information Validity. Most people
who provide information to the forensic examiner
have a personal or professional interest in the opinions
and findings that the examiner will reach. Thus, con-
cerns about the validity of information are greater in
insanity evaluations (and other forensic assessments)
than with evaluations conducted for standard clinical
and therapeutic purposes.
A defendant may view a successful insanity defense
as his or her only hope for avoiding a lengthy prison sen-
tence and thus be motivated to exaggerate or fabricate
symptoms of mental disorder in describing behavior and
motivations at the time of the offense. Family members
sympathetic to the defendant’s plight may distort infor-
mation in ways that they believe are helpful to the case.
The attorney(s) may be selective in the investigative
information made available to the clinician, withholding
that which they believe might lead the clinician to an
unfavorable opinion. Evidence may be gathered and
provided by the police in ways that provide a mislead-
ing picture of the defendant’s prior mental functioning.
For example, a defendant who is mentally confused and
verbally incoherent may be cajoled into signing a “con-
fession,” drafted in perfectly organized and sensible lan-
guage by an arresting officer, that belies the extent of
psychopathology present at the time of arrest.Translating Clinical Findings for Legal Consumers.
Based on information gathered from the defendant, the
police, and available third-party sources, the forensic
examiner attempts to reconstruct an account of the
defendant’s mental state at the time of the offense that
considers whether, and the extent to which, symptoms
of mental disorder may have contributed to the alleged
crime. However, as noted above there is no direct
translation of clinically recognized mental disorders,
which can vary from relatively benign (e.g., nicotine
use disorder) to severely incapacitating conditions
(e.g., schizophrenia, manic disorder), into legal terms
such as disease of the mindor mental disease or defect.
Similarly, various formulations of the legal criteria
for insanity require qualitative or quantitative determi-
nations of either the nature of the functional legal
impairment (e.g., ability to “know” or to “appreciate”
wrongfulness of conduct) or the extent of impairment(e.g., categorically “did notknow” vs. “lacked sub-
stantial capacityto know”) for which there is no clin-
ical or scientific technology.That there is no scientific basis for translating clin-
ical findings into specific legal conclusions poses a
challenge to forensic examiners who are often pres-
sured by the attorneys, if not also the courts, to give
conclusory opinions under the mantra of “reasonable
medical (or scientific) certainty.” Mental health pro-
fessionals have no “capacimeters” for determining
whether the specific nature or extent of impairment in
a given case is sufficient to excuse the defendant from
his or her moral obligation to obey the rules. These
constructs are legal terms of art that, in any individual
case, have meaning only as expressed in the eventual
social and moral judgment of the judge or jury when
the verdict is reached. The status of an individual
being legally insane(i.e., “not criminally responsi-
ble”) is a social construction that has no meaning prior
to, or independent of, the jury’s pronouncement.
This is not to say that clinical evaluations of crim-
inal responsibility cannot be helpful to legal decision
makers. Rather, the challenge for forensic examiners
is to collect information relevant to a defendant’s legal
functioning and to describe it to the triers of fact in
ways that facilitates their ultimate judgments, but
without offering moral judgments of their own under
the guise of scientific expertise.
To illustrate with an example, one defendant who
had a long and well-documented history of mental dis-
order experienced a recurrence of symptoms that
included the delusional belief that he had been
appointed to the position of deputy director of the FBI
(in reality, the individual had worked in a factory for
20 years). On the basis of this belief, and the further
notion that he was urgently needed in Washington,
D.C., on matters of national security, he boarded a
Greyhound bus and, without license or permission,
drove it away from the bus depot. He was arrested and
charged with unlawfully driving away a motor vehicle.
In this case, a forensic examiner might report that
at the time of the offense the defendant experienced
symptoms (i.e., delusions—strongly held but erro-
neous beliefs) of a well-recognized mental disorder
(schizophrenia) with which he had been diagnosed for
a number of years. Although the objective evidence is
that the defendant is a factory worker, the manifesta-
tion of his illness at the time of the offense included a
set of beliefs that distorted his perceptions of reality160 ———Criminal Responsibility, Assessment ofC-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 160