Adversarial Process: Trial by Ordeal? (From A Practical Guide to Forensic Psychotherapy, P 239-245, 1997, Estela V Welldon and Cleo Van Velsen, eds. -- See NCJ-168168)

• NCJ Number: 168202
• Author(s): P Barrett
• Date Published: 1997
• Length: 7 pages
• Sale Source: Jessica Kingsley Publishers
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United Kingdom

Annotation

This paper examines how mentally disordered (MDO) defendants fare under British courts' adversarial format.

Abstract

MDO defendants do not fare well under an adversarial trial system for a number of reasons. First, a trial cannot protect a MDO defendant against prejudice and ignorance regarding mental illness. Little effort is made within the adversarial process to dispel such prejudice and ignorance. Second, if a MDO defendant wishes to give evidence, there are no provisions to ameliorate the stresses of appearing in the witness box unless the MDO defendant can be brought within other provisions of the law. A third issue is the MDO defendant's right to silence at trial; the MDO defendant is in theory protected from adverse inferences from a decision not to testify if "it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence." The subjectivity of this test, however, leaves too much to chance. Fourth, judges, in their decisions, do not take into account that MDO defendants may try to manipulate the court process as a symptom of their illness; judges should not, therefore, punish MDO defendants for behavior that is part of their illness. Fifth, there are ethical issues that must be addressed. These include the responsibility of an expert psychiatric witness, confidentiality between patient and doctor, and the extent to which the defense attorney lets the MDO defendant determine how the case is handled.