Why Psychiatrists Disagree in Court

Profound as psychology is, it's a knife that cuts both ways . . . You can prove anything by it . . . I am speaking of the abuse of psychology, gentlemen.

--Feodor Dostoevsky

The Brothers Karamazov

WAS Sirhan Sirhan fully responsible for his actions when he shot Robert Kennedy? No, say the four defense psychologists and psychiatrists who have examined Sirhan; as a paranoid schizophrenic, Sirhan was, in effect, incapable of fully premeditating his deed or weighing its risks. Yes, says the prosecution, and to back up the contention, it is calling counterexperts of its own. Such disagreements are all too typical when psychiatry and psychology go to criminal court.

According to defense experts, Jack Ruby was suffering from a "psychomotor variant" seizure when he killed Lee Harvey Oswald. But prosecution witnesses answered that Ruby's brain waves were "normal," with only "very slight" aberrations, not enough to suggest seizures. "Boston Strangler" Albert DeSalvo was an extreme schizophrenic under an irresistible impulse at the moment of his alleged crimes, defense witnesses said; the equally impressive prosecution allies testified that DeSalvo was suffering a "defect of character but not a psychosis."

Are They Crazy? Such professional disagreement does nothing to enhance the layman's opinion of psychiatry and its related fields. Nor does the fact that psychiatrists in the witness chair frequently couch their findings in language that either boggles the layman's mind or defies surface credibility. Even highly respected California Psychiatrist Bernard L. Diamond, key defense witness last week at the Sirhan trial, admitted that the jury might have trouble believing his testimony that Sirhan killed Robert Kennedy while in a self-induced hypnotic trance. To the layman, this would be an "absurd, preposterous story, unlikely and incredible," he allowed. The reputation of psychiatric wisdom was certainly smudged when another expert witness at the trial, Psychologist Martin Schorr, admitted that he had relied heavily on the terminology of another man's book to formulate his own description of Sirhan's state of mind. No wonder that one of Sirhan's attorneys carefully asked prospective jurors if they agreed with the opinion that "all psychiatrists and psychologists are crazy."

Although the experts at the Sirhan trial are all fully qualified, the fact is that many of the best minds in the profession refuse to appear in court, on the grounds that they cannot give adequate and accurate testimony under the rigid rules of the adversary system. As a result, supposedly expert opinion as to a defendant's mental state is sometimes put forward by second-rate practitioners with a talent for publicity.

Nonetheless, there are good reasons why even the best experts should disagree. One is that only difficult borderline mental cases ever get to court in the first place. Defendants who show obvious symptoms of illness are committed to institutions immediately, as incompetent to stand trial. The offenders who are left, Yale Law School Professor Abraham S. Goldstein points out, are usually men who seem calm in the dock even though they may have been seriously disordered at the time of the crime.

Margin for Error. Such cases would raise perplexing professional problems under the most clinical of circumstances. Is an accused criminal presently sick? Psychologists know that batteries of tests, such as the Rorschach and Minnesota Multiphasic Personality Inventory used on Sirhan, show only the probability that a man has certain personality traits; they have a built-in margin of error when applied to one individual. Even though experts may agree on the diagnosis of a man's present state, they often have difficulties when pressed to project it back to his condition at the time of the crime. The link is unprovable: no psychiatrist was there, and as University of Wisconsin Psychiatrist Seymour Halleck has observed, "because of the enormous psychological impact of an offender's crime, incarceration, and trial, his emotional state is constantly changing."

The most common disagreements arise when experts are pressed to take a third step away from the defendant's present condition. With few exceptions, they are asked to decide whether his mental state during the crime made him fit the legal definition of a word which few psychiatrists use: insanity. Under the 126-year-old M'Naghten rule, insanity is not knowing what one is doing, or not knowing that it is wrong. However, many people who can tell right from wrong are nonetheless patients in mental hospitals, and some courts permit more elastic definitions--such as the Durham rule.* If a man is deemed insane under any legal definition, he is not responsible for his criminal act at the time he committed it and therefore cannot be blamed for it. Says U.C.L.A. Psychiatrist John Suarez, "sane or insane is equivalent to guilty or not guilty." While psychiatrists are equipped to give an opinion of a man's mental state, they bridle at being asked to say whether a man should be blamed for a specific act, since this goes well beyond the frontiers of their expertise. Frederick Hacker, a psychiatrist who teaches at the University of Southern California's law center, expresses a common professional view when he says " 'Should we blame him?' is a moral question, not a medical question."

Biased Toward Blame. When forced to answer the question, as they frequently are, psychological experts will often fall back on the premise of their training. Wisconsin's Halleck notes that the average psychiatrist is slightly biased toward blame because in day-to-day practice he has found that "if he is ever going to help people overcome their difficulties, he must constantly implore them to assume responsibility for their actions." Nonetheless, psychoanalytically oriented psychiatrists, who tend to believe that unconscious forces determine a man's deeds, are more likely to find an offender nonresponsible; those who deal primarily with graphs showing abnormal brain activity, or other biological symptoms, may be unwilling to concede insanity unless these factors are present. Calculating the effects his testimony will have, one expert may overstate a judgment because he knows that a jury's finding of insanity will start proceedings to commit the offender to a mental institution; another may be influenced by the thought that more rehabilitation will be possible in an enlightened prison than a backward asylum.

The pressures of a trial exaggerate legitimate disagreements still further. Defendants claiming insanity are most often accused of the crimes for which juries have least sympathy: murder, armed robbery, arson or rape. Hence defense lawyers load their questions to experts, hoping to produce answers convincing enough to overcome the layman's often exaggerated presumption of sanity. Says Psychiatrist Edward Stainbrook, "If one side strays from observation to inference, the other side has no choice but to make its own inferences."

Drama of Responsibility. One way out of the morass might be to determine first only the factual question of whether a man committed an illegal act. Psychiatrists would enter the legal process later, as Dr. Karl Menninger and others propose, not to testify but to advise the court on how to control dangerous offenders and how to treat and rehabilitate the rest. This solution would end courtroom squabbles over the question of responsibility, but could raise a host of new problems and require a drastic reform in present legal processes. It might, for instance, lead to further disputes about whether to send a man to a prison or to a mental hospital for rehabilitation. Ultimately it might require doing away with the distinction between prisons and asylums altogether. It might also tuck away in an administrative process what Yale's Goldstein calls the "almost forgotten drama of individual responsibility," a drama which present trials highlight and make "part of the cultural forces that keep alive the moral lessons, and the myths, which are essential to society."

A more likely approach, advocated by both lawyers and psychiatrists, would change court rules. Experts could testify fully on the defendant's mental state, but would not be forced to render opinion on the ultimate question of responsibility. "That's a decision for the jury," says U.C.L.A.'s Suarez. Federal Judge David Bazelon adds that "the decision is often painfully difficult, and perhaps its very difficulty accounts for the readiness with which we have encouraged the experts to decide the question." In a democratic society, which believes in letting its citizens decide how offenders should be treated, the jury has a responsibility from which no science can ever completely absolve it.

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