How often-this week-have you seen a videotaped interview of a defendant asserting he has forgotten what happened? Who can blame him for that response? So unless he is referred for psychiatric examination, the case is investigated according to corroborating facts, witnesses, or other evidence, and that's that. Nothing strange. Once he's examined by a psychiatrist, however, dissociative amnesia, multiple personality or psychosis are too often cited to explain why Jimmy, or Sheila, didn't, or couldn't-or wouldn't-answer the questions.
This pseudo-intellectual alternative to due diligence, or to applying common sense, is a little like saying that, on a cloudy day, the sun cannot be seen because of a total eclipse. Equally embarrassing is the tendency for the forensic examiner to possess the same level of critical analysis as Forrest Gump. Whatever the examinee says is universally accepted as a sincere effort to be as forthcoming as possible, whatever the contradiction may be with physical evidence, or his own previous statements. Even priests in a confession box anticipate more distortion and concealment.
The court, unfortunately, is hostage to a steady diet of technical ideas and diagnoses fed to it by those of us entrusted to represent the facts of science. Psychosis, delusions, antisocial personality, Munchausen by proxy, and other loaded psychiatric terms are being thrown around with carefree presumption not even tolerated from medical students. And so it goes with how psychiatry is being reinvented by none other than forensic psychiatrists. Boy, is diligence due.
The time has come to mandate that any examination relating to criminal responsibility must include the interview of witnesses and significant others to provide corroborating input. An examination should not be admissible when a defendant cannot remember to provide input for an affirmative defense, unless there is dramatic neuropsychological and neuroradiological evidence that the defendant is so damaged. No allegations of long-past abuse should be admitted into a criminal court proceeding without clear evidence of either abuse or a traumatic syndrome. No assertions of brain damage should be admitted without clear corroborating evidence from neuropsychological testing.
For too long, qualifying expertise in court has been limited to the expert's resume. Resume focus ignores the reality that a four-star expert witness is just as capable of failing to conduct an examination sufficient to assist the trier of fact with anything more than pop conjecture. Some cross-examining attorneys regard qualifying the expert as a formality. Unfortunately, it is through this wide open gate that nonsense invades the courtroom. Sloppiness at the examination level should be as inadmissible as mixed and matched articles from the crime scene and blood and other samples smeared into containers with bare hands.
Unfortunately, in forensic psychiatry, there is no enforcement of standards for examinations. The result, Creative Witness Syndrome, disrespects science and is dangerous to the integrity of this field. How fascinating and exact the behavioral sciences can and should be. It's about time that the highest courts lost their patience, and forced the issue.
