In the years both before and after it became an official subspecialty in 1994, forensic psychiatry has changed in dramatic ways, forensic psychiatrists agree.
For one, “the field has expanded to include correctional psychiatry,” reports Paul Appelbaum, M.D., the Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Law, Ethics, and Psychiatry at Columbia University and chair of the APA Committee on Judicial Action.
Brain images such as this one are being used more and more often in forensic cases.
Robert Granacher, Jr., M.D.
A second change, he told Psychiatric News, “has been the steady introduction of a more systematic means of assessment in the forensic realm. For many years, forensic psychiatrists had to rely on clinical evaluations to gain information about people’s mental states, perhaps supplemented by collateral information such as records or interviews with family members. And that is still the case. However, those clinical evaluations have in many settings been supplemented by more systematic data-gathering tools, such as scales for the assessment of symptoms and mental states.”
“I think the field has been evolving over the past 20 to 30 years, with a gradual development of ethical guidelines and the development of practice guidelines for the profession,” Howard Zonana, M.D., a professor of psychiatry at Yale Medical School and a clinical adjunct professor at Yale Law School, said in an interview. “Training programs have increased around the country in terms of offering subspecialty training. The boards have developed, and hopefully the quality of testimony has risen as a result of that. You always hear about the bad testimony, but I think that the general run of testimony has improved.”
“The field has [also] greatly expanded in many civil areas beyond the traditional criminal-activity evaluations that we have done,” Patricia Recupero, M.D., J.D., a clinical professor of psychiatry at Brown University, told Psychiatric News. “So forensic psychiatry has become much more important in child custody, disability evaluations, and perhaps more significantly for the public, in sickness-for-duty evaluations—the ability of people to return to work after a psychiatric illness.”
“And a very new trend that we are in the initial stages of,” she said, “is the reaction to the Newtown, Conn., shootings and the state of gun violence in the United States…Forensic psychiatrists can be advocates and provide governments and other agencies with testimony about the effectiveness of various forms of mental health treatment in avoiding or decreasing violence.”
But perhaps the greatest change in forensic psychiatry in recent years has been the increasing use of science in the field, several forensic psychiatrists indicated.
“We are seeing a growing introduction of both structural and functional neuroimages, electrophysiological studies, and genetic information in court in connection with a variety of claims, ranging from the use of such information to support diagnostic claims to the use of this information to establish impairment of function or the presence of injuries,” Appelbaum said.
Forensic psychiatrist William Bernet, M.D., a professor emeritus at Vanderbilt University, concurred: “The brain-imaging movement in forensic psychiatry in recent years is a reflection of the push in all of psychiatry, and with the completion of the human genome project, there is a lot of interest in genetic testing in forensic situations.”
For example, there is evidence that if a male of European background has the low-activity version of the MAO-A gene and was seriously abused as a child, he is four or five times more likely to be a violent adult than if he didn’t have the two factors. Bernet has used this information in court seven or eight times, he said.
During the next decade, still more scientific advances will assume a vital role in forensic psychiatry, Bernet predicted. For instance, to determine whether a person who has served a sentence may be dangerous if released from prison, a forensic psychiatrist might use psychological testing and actuarial evaluation, in which he or she looks “statistically at things he has done and estimate from that what his future is going to be. But I think that 10 years from now, brain scans and genetic testing will be used as well.”
“Structural magnetic resonance imaging [MRI], which I use all the time, is exceedingly good at telling us about traumatic brain injury and other conditions,” Robert Granacher Jr., M.D., a clinical professor of psychiatry at the University of Kentucky and a forensic psychiatrist, said during an interview. But functional MRIs can tell forensic psychiatrists something that structural MRIs cannot, he explained, and that is brain activity. For instance, research has shown that telling a lie takes about three times more brain activity than telling the truth. As a result, it may eventually be possible to use fMRI scans to determine whether people on trial or testifying at trial are telling the truth, he noted.
But even if brain scans and genetic tests become increasingly accurate, it is not clear how useful such information will be in legal proceedings, Appelbaum emphasized. For example, “A question that remains to be answered concerns the validity of inferences that can be drawn from genetic information. To the extent that it establishes anything about a person, it will tend to establish proclivities for certain kinds of behaviors…, but will not in general be able to speak to why the particular act occurred.”
Or as Bernet put it more bluntly: “Your genetic makeup doesn’t make you do anything. It is only a risk factor.”
Moreover, “Hard data from brain imaging and genetic studies aren’t sufficiently mature for the courtroom yet and serve mostly to mislead jurors into adopting overly deterministic concepts of criminal behavior,” Park Dietz, M.D., Ph.D., a forensic psychiatric in Newport Beach, Calif., asserted. “If a risk factor makes it 10 times more likely that carriers will commit a homicide, all that really means is that the defendant’s biology raised his odds of killing from 5 in 100,000 to 5 in 10,000. Does that mean that he had no choice?”
Added Fred Berlin, M.D., Ph.D., a Johns Hopkins psychiatrist who, like Dietz, has testified in several high-profile criminal cases, “As science and technology continue to evolve, providing ever more informative contributions to the forensic field, it will still be critical that practitioners remain knowledgeable about mental experience and about the uniquely human and moral issues that must often be addressed in a court of law. There are some questions that science and technology alone simply cannot answer.”
Meanwhile, it appears that courts are moving toward an evolving consensus that brain scans and genetic tests are appropriate for the penalty phase of criminal trials, even if they aren’t suitable for determining guilt, Appelbaum pointed out.
Bernet thinks this trend will continue. “In fact, it is my hunch that over the years, brain scans and genetic information will undermine the use of the death penalty, because I think that more and more people will appreciate that many people commit crimes who don’t have total control over what they do.”
Regardless of the direction in which forensic psychiatry science is headed, courts will probably use it in some form if the past is any indication. Specifically, Deborah Denno, Ph.D., J.D., a professor of law at Fordham University, studied 81 criminal cases from 1994, when forensic psychiatry became an official subspecialty, up to 2011, to see how often judges admitted psychiatric genetic evidence into court proceedings. The evidence could have been, for example, that mental illness was prevalent in a defendant’s family or that a defendant had a genetic propensity toward alcoholism or substance abuse.
During this 17-year period, Denno found, judges became increasingly accepting of such evidence. As an example in a well-publicized case, experts said that Susan Smith escaped the death penalty in 1995 for drowning her two children because depression and suicide attempts ran in her family.
Denno reported these findings February 22 at a meeting of the National Association of Criminal Defense Lawyers in Washington, D.C. ■