Psychiatry v. Law in the Pre-Trial Mental Examination: The Bifurcated Trial and Other Alternatives

Fordham Law Review, Dec 1972

Published on 01/01/72

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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 0 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact Recommended Citation Psychiatry v. Law in the Pre-Trial Mental Examination: The Bifurcated Trial and Other Alternatives, 40 - Article 4 Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons 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)


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Psychiatry v. Law in the Pre-Trial Mental Examination: The Bifurcated Trial and Other Alternatives, Fordham Law Review, 1972, pp. 827, Volume 40, Issue 4,