If a man breaks into a house, dresses himself in the homeowner’s clothes, eats food from the pantry and refuses to leave when he’s discovered because he believes he rightfully owns the house, should he be held as criminally accountable as someone who breaks and enters with intentions of stealing?
Should his mental state play a role in his sentencing?
Cases like this are presented in court more often than one might think, leaving judges and jurors who often have little knowledge of mental illness to decide whether the individual will be placed in the health care system or criminal justice system.
The expert opinion of a forensic psychiatrist or psychologist can make a difference.
Forensic psychiatry and psychology are subspecialties that focus on the intersection of mental health and legal systems. The term “forensic” as applied to these subspecialties has a broader meaning than the more familiar medical subspecialty of forensic pathology. While forensic mental health professionals help explain abnormal behavior involved in criminal matters involving serious injury and death, they also help educate the courts on a variety of other mental health issues.
Vanderbilt Forensic Psychiatry was founded in 1992 by William Bernet, MD, professor emeritus of Psychiatry and Behavioral Sciences, and Barry Nurcombe, MD. Group director Stephen Montgomery, MD, Kimberly Brown, PhD, Bradley Freeman, MD, Mary Wood, PhD, and administrative assistant Allison Kee comprise the team today.
Each team member provides diagnoses, explains how symptoms may or may not have played a role in an individual’s behavior and testifies in court to share their findings with judges and juries. They assist with more than 600 criminal, civil and juvenile cases each year, including child custody, parental fitness evaluations, disability claims, and whether an individual may need a conservator to help them appropriately manage their financial decisions, living wills or other personal affairs. Criminal cases often involve determining competency to stand trial, mental state at the time of the offense, factors at sentencing or violence risk assessments to examine the likelihood of future violent behavior.
Cases may be tried in state or federal courts and can be referred by either the defense or prosecution, the court or the defendant. The team’s job is to handle each case objectively regardless of who requested the service.
According to Brown, referrals for criminal evaluations involving misdemeanor charges such as domestic assault, criminal trespassing and disorderly conduct have been spiking across the country, and Nashville is no exception.
“There’s this drift happening where people who aren’t getting adequate mental health treatment in the community are getting low-level charges and drifting into the criminal justice system,” said Brown. “While the charges may be low-level, the individuals we see are usually the most ill of all the people we see. It’s a significant issue that we’re talking about with other agencies in Nashville to figure out what we can do, because funneling these individuals into the criminal justice system may not be the best way to deal with that population.”
AN INVESTIGATIVE APPROACH
While similarities exist, forensic evaluations vary widely from regular mental health evaluations performed in a clinical setting. The questions the examiners ask are more direct, and they are more likely to confront individuals about inconsistencies in the information they share, such as times or events that don’t line up with evidence or witness accounts. The evaluator must keep a heightened sense of scrutiny to scout for symptoms that may be exaggerated or minimized, and the interviews aren’t meant to be empathetic or to help the person heal.
In fact, the interviewee rarely gets to see the detailed results of their evaluation. The forensic team also avoids referring to them as their “patient,” as the client is the court or attorney who requested the evaluation.
While firsthand accounts play a role in the evaluation process, the Forensic Psychiatry team relies heavily on reviews of records such as police reports, autopsies, hospital records, witness statements and 911 calls.
“We’re like scientists in a lab who have all these puzzle pieces that we’re trying to fit together to see what the big picture is,” said Brown, who noted she may spend 10 or more hours reviewing documents for a case. Gathering information from various sources can also uncover inconsistencies across time and people.
Reviewing records can be especially important when evaluating an individual’s mental state at the time of the offense.
“Since you’re reconstructing a past mental state, it’s always an inference, so you’re looking at as much data as you can from around that time,” said Brown. “We’re looking at evidence of whether the individual knew the wrongfulness of their conduct at the time of the crime.”
Through its evaluations, the forensic team can also shed light on whether an individual may lack the competence to appreciate and reason through complex legal decisions, an issue that is especially important in cases involving intellectual disability, said Wood.
“Individuals with intellectual disability are overrepresented in the criminal justice system, under-identified by virtue of the disability itself and especially vulnerable to various risks within the system. The social deficits associated with intellectual disability increase the risk that they will unknowingly agree to something they may not fully understand, confess to a crime they have not committed or waive their rights without appreciating the consequences,” said Wood.
While evaluations are meant simply to educate the court, the results can dramatically change the course of a defendant’s sentence. Brown recalls evaluating a juvenile who had significant mental illness and killed a family member. Due in part to Brown’s testimony, the defendant remained in the juvenile system, where he received intensive treatment in a residential facility instead of being transferred to adult court, where he likely would have faced a lengthy incarceration and minimal treatment.
Conversely, Brown has found defendants to be faking symptoms of psychotic disorders. Her evaluations can help the court understand when an individual may be “gaming the system” and is more suitable for a criminal sentence than a mental health diversion.
Working as health care experts inside the legal system is challenging, especially when it comes to understanding the ways in which terms are defined. The legal definition of insanity, for example, which concludes that an individual’s mental illness is so severe they are unable to distinguish reality from their psychotic delusions and appreciate right from wrong, differs greatly from what it means to have a mental illness, which involves a disruption to a person’s thinking, behavior or mood.
Because definitions vary, the insanity defense — or the argument that an individual’s mental state and corresponding symptoms caused their behavior, minimizing their criminal responsibility — is rarely accomplished in court.
“I think there’s great skepticism about the insanity defense. There is always concern that an individual is trying to get off the hook,” said Brown, who noted that people claiming insanity are often trapped in the legal system for longer than those who accept a criminal sentence.
Many people who are then found not guilty by reason of insanity are transferred to a psychiatric hospital where they are held for an undetermined amount of time, as opposed to someone who is sentenced to jail and knows they have a fixed sentence to serve.
“There have been some perfect cases of insanity that the jury didn’t find to demonstrate insanity. That’s a real sad part of this profession,” said Bernet, citing a 1999 case in which a man killed his baby daughter because he believed God had directed him to do so. Bernet interviewed the defendant and spent more than 30 hours reviewing medical records and legal documents before testifying that the defendant’s mental illness rendered him unable to appreciate the moral wrongfulness of his actions.
The jury disagreed and sentenced the defendant to life in prison.
NEW THREATS
Aside from many types of criminal evaluations, the Forensic Psychiatry team has seen a rise in fitness for duty evaluations, determining one’s psychological ability to perform a job.
“An employer will recognize that something isn’t right with one of their employees at work — that their behavior is different or that they’re making threats against others or to themselves — so the employee will be required to receive an evaluation before they’re allowed to return to work,” said Montgomery, who handles many of the team’s civil cases.
“I think these evaluation requests are increasing because people are taking more seriously threats that people make in the workplace,” said Brown. “Employers may have heightened awareness due to mass shootings and are requiring evaluations more than they used to. It’s a different climate and a different threshold for what they’ll tolerate.”
Child custody cases have increased over the last few decades, said Bernet, as parenting responsibilities have become more equal between mothers and fathers.
“In the ‘60s and ‘70s, when a couple got divorced, the mother got custody of the children, and there was little dispute about it,” said Bernet. Now, both parents have a 50/50 chance of gaining custody.
Because of this, the courts are increasingly interested in receiving input and education from a forensic specialist regarding the best interests of the child for custody decisions. Freeman, a child forensic psychiatrist, is uniquely qualified and trained to evaluate entire families and provide this information to the courts.
Sometimes, the court is more interested in whether mental illness or substance use disorders are interfering with the parenting abilities of one or both parents.
“No specific mental diagnosis or history of treatment is a universal bar to safe parenting,” said Montgomery, who is often asked to consult on such cases.
A UNIQUE TEACHING ENVIRONMENT
Most people, including medical students and many practicing physicians, are unfamiliar with the disciplines of forensic psychiatry and psychology.
“I was unaware such a subspecialty even existed until well into my psychiatric residency,” recalled Montgomery.
Specialization is similar to other medical specialties, requiring an additional year of fellowship training in forensic psychiatry after completion of residency training.
According to Brown, it’s uncommon for psychiatry departments to have an entire section dedicated to forensic work, especially one that employs multiple full-time faculty members. Vanderbilt’s extensive program offers unique training experiences for psychiatry residents and fellows, psychology interns and post-docs.
All residents are required to complete rotations in jails, performing forensic evaluations as part of their general education.
“Participating in evaluations at the jail was eye-opening, and one of the things I was most struck by was the severity of psychopathology,” said Reema Dedania, MD, MPH, fourth-year psychiatry resident, who has visited a jail eight times throughout her residency. “Many of the individuals we saw were more ill than what we see in our psychosis clinics or even in the inpatient unit at Vanderbilt, and it was not uncommon for them to be untreated.”
Dedania quickly learned that the underlying intention of her forensic work — to evaluate, not treat — required her to shift gears from how she normally practices. When she encountered a man from Mexico who faced delusions that drug cartels had been following him, her role was to comment on his overall level of insight, psychiatric symptoms, compliance to medications and possible benefit for transfer to a treatment facility. She also evaluated whether he had the ability to understand his charges and work constructively with his lawyer to aid in his own defense.
“This required us to think about his psychiatric illness in conjunction with his psychosocial and cultural background and how a person’s history can inform their current state of symptoms,” said Dedania.
Education has been ingrained in the program since its inception. One of the highlights is the annual mock trial held jointly with the Vanderbilt University Law School. Residents assume the role of psychiatric experts to experience first-hand the intensity and scrutiny of testifying and educating the “court” on mental illness within the adversarial legal system. Law students serve as the defense and prosecution lawyers, while psychiatric residents from all four years act as jurors. Montgomery organizes and moderates the event along with Christopher Slobogin, JD, Milton R. Underwood Chair in Law and director of the law school’s Criminal Justice program, who serves as the judge.
The Forensic Psychiatry faculty also partner with the law school on various lectures throughout the year, including an annual insanity defense panel with a defense and prosecuting attorney, where each presents their views of the system. Other lecture topics include juveniles in the criminal justice system and the relationship between violence and mental illness.
In addition to teaching and its forensic work, the Forensic Psychiatry team conducts research. According to Wood, a current research project is analyzing misdemeanor cases in Davidson County and the associated outcomes in terms of re-arrest and referral for hospitalization with hopes of developing creative ideas to address underlying systemic issues.
The team also spends a large amount of time seeing patients in a regular clinic setting.
“It’s recommended that most people who do forensic psychology and psychiatry continue to keep up their clinical work so they can bring that knowledge of treating patients into the courtroom. When we talk about these conditions to the jury or judge, we can say, ‘This is what I do in my office when I see patients with this condition,’” said Montgomery.
The team agrees the most rewarding part of its mission is helping to protect the rights of people living with mental illness, which remains widely misunderstood by the general public.
“I enjoy helping legal professionals make good decisions about families and parenting,” said Freeman, who handles most of the team’s cases involving children. “Testifying gives us the opportunity to educate the court about our findings, how we arrived at those conclusions and what may be in the best interest of either parties or children who may be involved in the situation.”
“It’s rewarding when we’ve withstood the rigors of the court system and cross-examination and still remained credible and true to our work. When we feel like we communicated our knowledge in the best way without it being distorted by the court process, it’s fulfilling,” added Montgomery.
For Brown, the variety of the work is another rewarding factor that keeps her motivated.
“Every case is different, every piece of information is new, and every defendant is a little different from what you expect them to be like,” said Brown. “I like the complexity that working within another system creates.”