Psychiatry v. Law in the Pre-Trial Mental Examination: The Bifurcated Trial and Other Alternatives
Fordham L. Rev.
Psychiatry v. Law in the Pre-Trial Mental Examination: The Bifurcated Trial and Other Alternatives
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INTRODUCTION
Both law and psychiatry are frequently concerned with the evaluation,
prediction, and control of human behavior.' However, law is also concerned with
the protection of individual citizens from arbitrary intrusions by society or
its agents. The conflict between the disciplines engendered by the consideration
of this additional goal is dearly manifested in the substantive and procedural
law of criminal responsibility, competency to stand trial, and civil commitment
A recent New York Court of Appeals case, Lee v. Erie County Court,3
highlights many of the practical difficulties resulting from the conceptual
differences 4 between the two disciplines. Charged with a murder that occurred
two days after his release from a mental institution, the defendant pleaded not
guilty by reason of insanity. lHe cooperated in the court directed psychiatric
examination but was found guilty despite the fact that two of the three
psychiatrists testifying found him to be insane at the time the alleged crime was
committed. 5
1. For evaluations of the correspondence between law and psychiatry see R. Allen,
E. Ferster & J. Rubin, Readings in Law and Psychiatry (1968) [hereinafter cited as
Readings]; S. Glueck, Law and Psychiatry: Cold War or Entente Cordiale? (1962); S.
Halleck, Psychiatry and the Dilemmas of Crime (1967); J. Katz, J. Goldstein & A.
Dershowitz, Psychoanalysis Psychiatry and Law (1967); K. Menninger, The Crime of
Punishment 90-142 (1968); T. Szasz, Law, Liberty, and Psychiatry (1963); T. Szasz,
Psychiatric Justice (1965); Halleck, The Psychiatrist and the Legal Process, Psychology Today,
Feb., 1969, at 25; Tapp, Psychology and the Law: The Dilemma, Psychology Today, Feb,
1969, at 16. Psychology has implications for law in areas other than criminal responsibility
and criminal procedure. See W. Bryan, The Chosen Ones (1971) (psychology and the jury
selection process); J. Marshall, Law and Psychology in Conflict (1966) (psychology and
the rules of evidence); Marshall, The Evidence, Psychology Today, Feb., 1969, at 48.
2. For the legal ramifications of mental disability in other areas than the criminal law
see R. Allen, E. Ferster & H. Weihofen, Mental Impairment and Legal Incompetency (1968)
(guardianship, estate planning, etc.); S. Brakel & R. Rock, The Mentally Disabled and the
Law (rev. ed. 1971) [hereinafter cited as Brakel & Rock] (rights of hospitalized individuals,
domestic relations, personal and property rights, etc.).
3. 27 N.Y.2d 432, 267 N.E.2d 452, 318 N.YS.2d 705, cert. denied, 404 U.S. 823 (1971).
4. "When one considers the enormous conceptual gulf that lies between proximate cause
and multiple causality, jural responsibility and psychic determinism, advocacy and
psychotherapy, stare dedsis and the scientific method, one is almost driven to conclude that law
and psychiatry share about the same degree of ideological kinship as does the Mafia with the
Women's Christian Temperance Union .... " Readings, supra note 1, at ix (italics omitted).
5. 27 N.Y.2d at 435, 267 N.E.2d at 453, 318 N.YS. at 707. The two court appointed
The appellate division reversed,0 ordered a new trial, and subsequently
sustained a prosecution motion for another psychiatric examination in preparation
for the second trial.7 Defendant refused to cooperate fully in this second
examination. As a result, the examining psychiatrists could make no determination
of his mental condition at the time of the crime.8 Defendant contended that his
privilege against self-incrimination would be violated if he was forced to respond
to a psychiatrist's questions concerning his mental state at the time of the
alleged murder,0 and that the psychiatric examination was a critical stage of
the prosecution entitling him to the presence of counsel."0
Faced with admittedly complex issues, the court of appeals attempted to
balance the competing premises of law and psychiatry as the following four
holdings illustrate: First, the court found that prior case law demanded the
application of the privilege against self-incrimination to mental examinations,11
but to avoid crippling the psychiatric value of such examinations, the court
held that a defendant waives his privilege when he asserts a plea of not guilty
by reason of insanity.' 2 Second, in order for the trier of fact to obtain the full
benefit of the (...truncated)