FITNESS TO STAND TRIAL

Dr. Udayan Majumder, ResidentDepartment of Psychiatry, RIMS

30th Dec 2016

Outline• Introduction• Statistics : USA Vs India• Evolution of the fitness to stand trial• Need for assessment of fitness for trial• Assessment of fitness to stand trial • Ethical and legal issues• Fitness to stand trial Vs Criminal responsibility• Indian Scenario• Real life examples in India

Introduction• Assessment of the mental abilities of individuals to defend their case

is called FITNESS TO STAND TRIAL or COMPETENCE TO STAND TRIAL. (American Psychiatric Association.,2002; Mossman et al., 2007)

• In law, fitness to stand trial deals with the mental capacity of an individual to participate in legal proceedings.

• FITNESS TO STAND TRIAL is a legal construct that usually refers to a criminal defendant‘s ability to participate in legal proceedings related to an alleged offence .

(Council of the American Academy of Psychiatry and the Law in 2007)

• Mental illness, mental retardation and certain neurological conditions may incapacitate cognitive, emotional and behavioral faculties of an individual, consequently having serious impact on the ability to defend the case.

Contd.• FITNESS FOR INTERROGATION is the capacity to understand the

meaning of questions posed during police investigations and in court, and to answer such questions meaningfully.

(Rothschild et al,2007)

• Defendants who are UNFIT TO STAND TRIAL are usually excluded from criminal prosecution and the trial is usually postponed until such time as the person is judged competent.

• People found psychiatrically incompetent for trial are usually sent for treatment and will be treated to regain competence.

• Traditionally, fitness to stand trial evolved in criminal cases, but has also been recently extended to the civil suit.

Statistics : USA

• In USA alone, conservative estimates suggest there are 60,000 competency cases per year.

• Defense attorneys have doubts about defendants’competency in (10–15)% of cases.(Poythress NG et al. Law Hum Behav 1994;2:1-23)

• The average rates of incompetency often fall in the (20-30)% range. (Bonnie RJ & Grisso T, 2000; Melton GB et al., 2007; Melton GB et al., 1997)

• When extrapolated from the number of actively psychotic and mentally disordered inmates, the potential number of competency evaluations could easily be twice this estimate. (Rogers & Johansson love, 2009)

Statistics : India• No valid study available till date depicting factual numbers of incompetent or unfit cases for

trial in Indian court of law.

• In India, there are many instances in which fitness to stand trial has delayed the proceedings for decades.

• Various reasons have been attributed for the delay : 1) Ignorance 2) Non-availability of enough psychiatrists 3) Poor-availability of psychotropic medicines 4) Family members not wanting the person with mental illness to be released (perceived

dangerousness).

• This is compounded by the lack of resources to provide care and restore such individuals to their mental competency to fight their case.

Contd.

EVOLUTION OF THE FITNESS TO STAND TRIAL THE INFAMOUS CASE OF DUSKY V. US TRIAL, 1960

• The appellant, Milton Dusky, faced a charge of unlawfully transporting a girl across state lines and raping her.

• A pre-trial psychiatric evaluation rendered a diagnosis of SCHIZOPHRENIC REACTION, chronic undifferentiated type, could not "properly assist" counsel because of suspicious thoughts, including a belief that he was being "framed."

• Yet, the trial court found that Dusky was competent to stand trial and affirmed his conviction (Mossman et al , 2007).

• The U.S. Supreme Court held that the trial court's determination that Dusky was oriented and could recall events was not sufficient to establish his competence to stand trial.

•

Contd.• Instead, the Court stated that the test for his competence to

stand trial was “whether he had sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he [had] a rational as well as factual understanding of the proceedings against him.”

• In the US, fitness to stand trial assessment is based on three prongs of the Dusky standard.

These are: (a) Factual understanding (b) Rational understanding (c) Ability to consult with counsel (Dusky v. US 1960; Rogers et al, 2001).

Canada & Australia The Criminal Code of Canada states that an individual‘s ability is defined in terms

of three areas of information. 1) The accused must understand the nature or object of the proceedings.2) The accused must understand the possible consequences of the proceedings.3) He or she must be able to communicate with counsel (Zapf et al., 2001).

In the Australian legal system a person is deemed to be fit to stand trial if he or she has the ability to achieve a lay person‘s understanding of:

1) The court process2) The charges that have been made3) How he will instruct legal advisors to proceed in relation to the charges (Large et al., 2009;Mullen,2002).

Bottom-line• Almost all legislations have certain common components which are

used to determine the impairment in cognitive, emotional and behavioral domains of brain functioning, with regard to assessment of fitness to stand trial.

• These are : 1) Ability of the accused to understand the charges he/she has been

accused of 2) Ability to distinguish between a plea of guilty and not guilty 3) Realizing the seriousness of the penalties if proven guilty 4) Ability to instruct his/her lawyer and ability to follow

the proceedings in the court. 5) Appropriate behavior in the court

Invoking the fitness to stand trial assessment in court

The court may order an assessment of the defendant‘s mental condition if it believes that such evidence is necessary to determine :

a) Fitness to stand trialb) Whether the defendant was, at the time of the commission of the

alleged offence, suffering from a mental disorderc) Whether that mental disorder impairs reasoning power of the

defendantd) For placement of the person in an appropriate place such as a mental

hospital, rehabilitation, or high security prison.

Positive symptoms of psychosis, especially thought disorder and delusions have been known to be associated with unfitness to plead.

Infamous case of Medina V. California,1992

• A defendant Medina faced several criminal charges, including three counts of first-degree murder.

• Upon the defense counsel request, the trial court granted a hearing on his client's competence.

• The court clearly stated that in every case it presumes that defendants are competent until the contrary is proven.

• Hence, invoking the fitness to stand trial assessment would be by the defendant or his/her family members or by his/her attorney.

• At the same time, burden of proof is also on thedefendant.

Case of Drope v. Missouri• In 1975, the Court made clear that the requirement of

competency in the criminal process was of fundamentalimportance.

• In Drope v. Missouri, the Court held thatcompetency was “so fundamental to an adversary systemof justice.”

• Moreover, it stated, “It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of theproceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”

NEED FOR ASSESSMENT

Principle of natural justice, on 2 principles :

1) nemo judex insua causa – nobody shall be a judge in his own cause, invalidating any judgment where there is a bias or conflict of interest or duty.

2) audi alteram partem- hear the other side, giving at least a fair opportunity to present one's case.

• The aim of the principle of natural justice is to secure justice and to prevent miscarriage of justice.

• They do not supplant the law but supplement it Viz. 1) Maneka Gandhi vs. Union of India 1978 & 2) Gabriel vs. State of Madras 1959.

Voice of the Hon’ Supreme Court, India

• It was after the infamous case of Zaheera Habibullah Sheikh V. State of Gujarat, 2006.

• ‘Every Indian has an inbuilt right to be dealt with fairly, in a criminal trial.’

• ‘Denial of a fair trial is as much injustice to the accused as is to the victim and the society.’

• ‘Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm.’

• ‘Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.’

Ultimate goals

• Fitness to stand trial is to assure the autonomy and individual right of the person to defend himself/herself for a fair trial.

• The reasons for determining fitness to stand trial are as follows 1) To safeguard the accuracy of the proceedings 2) To ensure procedural fairness 3) To preserve the dignity of the legal system 4) to achieve the objectives of sentencing (Wiener BA, 1985).

• Trying a defendant who lacks an understanding of wrongdoing and subsequently punishing that defendant would offend the moral dignity of the legal proceedings.

ASSESSMENT OF FITNESS TO STAND TRIAL

• Assessment is usually done by a forensic psychiatrist or by a psychiatrist in absence of the former.

• Though presence of a mental illness is an important factor in determining a persons fitness for trial, yet it is not the sole criteria. Many mental illnesses with preserved rational thinking (viz. mild to moderate depression) are considered fit for trial.

• Hence, it must be demonstrated that the mental disorder affects the defendant‘s performance on adjudicating process.

• While nearly all defendants who had been found unfit to stand trial had some form of psychosis, almost one-third of those found fit to stand trial were also considered to suffer from psychosis

(Roesch R et al., 1981).

Assessment Contd.• Assessment can be done on an outpatient or inpatient basis

depending upon the nature of the case. • To report unfitness, the forensic psychiatrist has to ascertain the

following :1) The nature of the illness 2) Nature of impairment 3) How the defendant‘s illness is an impediment to the

adjudicating process. 4) Restorability of the fitness (reversible and irreversibility of the

condition) and time required for the same • Inpatient assessment is relatively time consuming(4-8 weeks).

Contd.

Patients’ Understanding Competency to assist counsel• Understanding of criminal charges• Understanding of the implications of being a defendant• Understanding of the adversarial nature of the proceeding.• Understanding of the role of defense counsel, prosecutor, judge, and

jury• Ability to work with attorney and relate pertinent information.

Decisional competency• Ability to make important decisions that arise in the course of

adjudication: how to plead, considering plea agreements, strategy of defense.

Assessment : Need for a screening instrument

• Considering the lack of forensic as well as general psychiatrists in countries like India, there is a need for developing a simple screening instrument for assessment of fitness to stand trial by a lawyer, medical professionals or a trained psychologist.

• Some of the well-known instruments are :1) MacArthur Competence Assessment Tool Criminal Adjudication

(MacCAT-CA) (Poythress NG et al., 1999)2) Evaluation of Competency to Stand Trial-Revised (ECST-R) (Rogers

R et al., 2004) 3) Competence Assessment for Standing Trial for Defendants with

Mental Retardation (CAST-MR) (Everington C & Luckasson R, 1992).

Assessment Cont.• On assessment using such a screening instrument, if he/she is found fit, the

trial will proceed. • If he/she is found unfit, the defendant needs to undergo detailed evaluation,

mental status examination and diagnosis by a psychiatrist before the defendant is declared unfit to stand trial.

• A simple but validated and reliable screening tool will save time, money and unnecessary detention in mental asylums and also protect human right and promote speedy trial

• In India, to measure and quantify mental capacity, one of the most widely used tool is the Indian Disability Evaluation and Assessment Scale (IDEAS).

• IDEAS assess schizophrenia, bipolar disorder, dementia, obsessive compulsive disorders.

• There is hardly any tool in India for the assessment of mental capacity in any other disorder.

Algorithm : Assessment of fitness to stand trial

Restoration of fitness to stand trial

• Restoration involves the following interventions:

1) Use of medication or pharmacotherapy2) Psycho-social interventions and3) Legal counseling

• Treatment of the underlying condition (schizophrenia, depression) through medication restores the fitness to stand trial.

Psychosocial interventions

• Cognitive behavior therapy in depressed patients• Cognitive retraining in patients with cognitive deficits • Social skill training in schizophrenia• Anger management techniques • Counseling for drug abuse• Relaxation training and behavior therapy for anxiety

disorders • Stress management and teaching coping skills

Legal Counseling• Legal counseling involves educating the defendants in the trial process,

including the roles of the courtroom personnel, pleas, charges, sentencing, and how to assist the attorney in planning the case. Possible ways are :

Guest lectures, group discussions, discussing with survivors Workshops and meeting with the court personnel Role play with mock trials Discussions led by legal experts Videotapes of actual courtroom proceedings by defendants

Ethical and legal issues

• Fitness to stand trial also involves diverse ethical and legal challenges that need to be discussed and debated. Many of them revolve around the individual rights of the defendants.

1) Reversibility2) Forced treatment 3) Self- Incrimination4) Confidentiality

Reversibility• It refers to restorability of fitness to stand trial in the future • Irreversibility means non-restoration• Defendant found unfit to stand trial should not be held indefinitely for

treatment for restoration of his/her fitness• There must be a time period stipulated for successful restoration within a

reasonable time. • Basic questions arises to be addressed Need to wait for the availability of new treatment ? What should be the next legal proceedings? Where should the accused be kept? What will happen to the legal proceedings? What is the kind of care to be provided to the individual in prison ?

Forced treatment• If a defendant is found to be suffering from

mental illness, then he/she should be offered treatment whereas in certain situation the defendant can refuse treatment.

• This gives rise to a conflict between an individual‘s right to refuse treatment versus restorability of the fitness to stand trial through forced treatment.

• Another hot debate is practice of ECT, mainly concerned in western countries.

Self-incrimination• During the assessment of fitness to stand trial, defendants may admit to

certain actions either spontaneously or in response to the psychiatrist‘s question.

• Patient by himself can demand for psychological evaluation under certain circumstances.

• Documentation of such self-incriminatory evidence had led to debate.

• US Supreme court cases (Estelle v. Smith 1981) (Buchanan v. Kentucky 1987)

Confidentiality• Dilemma between the ‘respect for the individual's right of

privacy’ and ‘duty to do forensic assessment of the defendantand provide an accurate report to the court or the investigating agency’

• There is a need to disclose the role of assessment and submission of report to the court.

• Psychiatrist also needs to inform the defendant that the collateral sources of information will be collected from his/her family members and so forth

• Hence, limitations of confidentiality need to be disclosed to the defendant.

Criminal responsibility or Insanity Defense

• Criminal responsibility means whether a person with a mental illness can be exempted from being responsible for a criminal act, he/she has committed, on grounds of themental illness.

• In India, the law is a mere modification of the Mcnaughtens Rule and revised in Sec. 84 IPC stating that,

“Nothing is an offence which is done by a personwho, at the time of doing it, by reason of unsoundness ofmind, is incapable of knowing the nature of the act, or thathe is doing, what is either wrong or contrary to law.”

• In partial insanity, dysfunction is primarily in form of delusions,while understanding and memory are intact.

Fitness to stand trial

• Fitness to stand trial refers to current ability to understand and participate in the adjudicating process.

• Fitness to stand trial is the assessment of the state of mind during the adjudicating process and it is considered dynamic since it changes over a period of time.

• Fitness to stand trial is a prospective assessment of the state of mind

Insanity Defense

• The insanity defense refers to one‘s state of mind at the time of the alleged crime (Sec 84 Indian Penal Code).

• Insanity defense is concerned with the state of mind during the commission of crime and is considered static.

• Insanity defense is the retrospective assessment of the state of mind during the crime.

Indian Scenario

Contd.

• A person with a mental disorder should be assumed to have mental capacity to decide on various matters unless the contrary can be shown.

• Section 328 of CrPC states “When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defense, the Magistrate shall inquire into the fact of such unsoundness of mind, and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the State Government may direct, and thereupon shall examine such surgeon or other officer as a witness, and shall reduce the examination to writing”.

Contd.• Sec.329 CrPC : Procedure in case of person of unsound mind tried before

Court. • Sec.330 CrPC : Release of lunatic pending investigation or trial. • Sec.331 CrPC : Resumption of inquiry or trial• Sec.332 CrPC : Procedure on accused appearing before Magistrate or Court • Sec. 333 CrPC : When accused appears to have been of sound mind • Sec.334 CrPC : Judgment of acquittal on ground of unsoundness of mind • Sec.335 CrPC : Person acquitted on such ground to be detained in safe

custody. • Sec.336 CrPC : Power of State Government to empower officer in charge to

discharge • Sec.337 CrPC : Procedure where lunatic prisoner is reported capable of

making his defense.• Sec.338 CrPC : Procedure where lunatic detained is declared fit to be

released

Real life cases from IndiaCASE 1: HALLUCINATIONS OF BARKING DOGS Mr. A, a 38-year-old male, who was accused of HOMICIDE, was referred for assessment with

questions, whether he was of unsound mind, and whether he can understand the proceedings of the court?

His only complaint was of hearing barking dogs. He had been diagnosed as havingschizophrenia in the jail hospital and held an old prescription from a general practitioner with a diagnosis of schizophrenia, which also mentioned about him having been hospitalized in a teaching psychiatric hospital in 1995. On enquiry, It was confirmed from the previous hospital that he was admitted there for about 2 weeks and had received a provisional diagnosis of schizophrenia. However, during his current hospitalization, no abnormality could be found on observation and psychological assessment. He often came up with ‘I don’t know response’. He believed that if he got a certificate from the hospital of his being mentally ill, he would be acquitted. He was always emphatic that he had not committed any crime, but was never able to tell how and why he reached the jail. He was able to give details of his earlier life in Mysore and Bangalore. A medical report was sent to the court, given as below:

“Mr. A had suffered from a psychotic disorder in the past… ……... At present he does not have any psychiatric illness needing treatment. He does not give any details about the criminal charges he has been accused of or details regarding defense saying that he does not know. Objectively there is no significant memory impairment. There is no evidence to suggest that he is of unsound mind and he can’t understand the proceedings of court”.

Contd.• CASE 2: A PATIENT OF CHRONIC RESISTANT PARANOID SCHIZOPHRENIA

Mr. B, accused of HOMICIDE, was sent for assessment, whether he was suffering from a mental illness and whether he was fit to stand trial. The court had suspected him of malingering. There was a history of loss of sleep, wandering on terrace during night, saying that food smelt of meat, talking irrelevantly, suspiciousness and hearing voices for about 15 years. The crime, of which he was an accused, was committed over 10 years ago. He often talked about many superpowers giving instructions to him, controlling him and the world by satellites and being on a mission on their orders. The psychopathology was consistent over the previous 10 years as recorded in the hospital records. The psychological testing also supported a diagnosis of schizophrenia. Mr. B was never able to give any details about his legal case. Observation during hospitalization also did not reveal any inconsistency in symptoms or behavior.

• A report was given that “Mr. B suffers from schizophrenia and needs regular treatment. He is not able to understand the nature of offence he has been accused of, and the court proceedings, and hence he is not fit to stand the trial of court.

Contd.• Case 3: Malingering of mental illness: Tricks used by criminals

Mr. C., a 40-year-old male, who was accused of TRIPLE MURDER, was sent by the court for assessment, whether he suffered from a mental illness. Mr. C had been trying to get bail, which had been denied. He was hospitalized for observation. After 2-3 days of hospitalization, he started accusing the clinical unit head of being against him. On the next day, he broke the glass of the nursing station and also attempted to assault the consultant in charge of treatment. The hospital staff took protective steps, but did not initiate any treatment. No abnormality was detected on observation and mental health assessment. Apparently, he had been advised by his lawyer to show a violent outburst in the hospital, which might lead to his being given some injections. This would have supported a diagnosis of a mental illness.

• Mr. C was discharged and sent back to jail. A report was sent to the court that he did not suffer from a mental illness.

Take home message• Fitness to stand trial is a legal construct, which discusses the issues

regarding the defendant‘s mental capacity to participate in legal proceedings.

• Assessment of fitness to stand trial assures the court that the defendant has adequate mental capacity to make a defense

• Psychiatrists should clearly describe the opinion regarding the fitness to stand trial

• Fitness to stand trial is an important area in the context of Indian law, and is only evolving.

• It needs to be utilised judicially to protect the rights of the mentally ill, without becoming a tool for misuse.

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cases: Client competence and participation as perceived by their attorneys. Behav Sci Law 1992;10:385-94.

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• The Australian Psychologist Association. Mental impairment and fitness to stand trial. Information Sheet-4, Available online at http://www.m2cms.com.au/uploaded/52/Fitness-to-stand-trial.pdf accessed on 15.12.2016

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