September 25, 2012
Psychology and the Law 2
Chapter 2: Forensic Psychology in Police Investigations
Today’s Lecture: Fitness to Stand Trial and Mental State at the Time of Offence
Part 1: Fitness to Stand Trial
What does fitness mean?
-To receive a fair trial, people should be able to defend themselves against their accusers.
What if a person is unfit to stand trial?
-Person should not be tried
How do we know if a person is fit to stand trial?
Legal standards for determining fitness
1. Prior to 1836: “ability to enter plea”
-Reasons for not entering plea:
“Mute of malice” (deliberately silent)
-if so, can use torture to extract a plea
“Mute by visitation of God” (e.g., deaf, mute, insane)
- If so, person should not be tried
2. R. v. Pritchard (1836): Charged with beastiality. Also a deaf-mute, so couldn’t enter plea;
couldn’t be tried for the crime
- Court establishes clearer legal standard:
o Able to enter a plea AND
o Must have “sufficient intellect” to understand proceedings
Canada’s fitness standard for next 156 years
3. Canada’s Bill C-30 (1992): Revisions to Section 2 of Criminal Code
-New “fitness” standard
Person is unfit to stand trial if:
-Person has a mental disorder;
-disorder interferes with ability to conduct a defence. Three criteria (or “elements”): 1. Understand nature and object of proceedings
2. Understand possible consequences;
3. Communicate with counsel.
Three other things (in section 2):
-fitness assumed unless unfitness is shown “on balance of probabilities” (lower standard than
“beyond a reasonable doubt”)
-party raising the issue has a burden of proving unfitness;
-The court determines whether burden is met (whether accused is “fit” or “unfit”)
Assessing Fitness to Stand Trial
1. Who can make an assessment?
a. Prior to 2005, only “medical doctors” can provide assessments to courts (don’t
have to be experts in medical disorders),
b. In 2005 [section 2 of the criminal code] expanded to include “other qualified
professionals” (includes psychologists)
2. Another role of psychologists
a. Develop the tests that are used to assess fitness.
3. How is fitness assessed?
a. Mental disorder AND
b. Disorder interferes with criteria in section 2.
i. Fitness Interview Test – Revised (FIT-R)
c. Has 3 sections:
i. Nature and object of the proceedings. Includes:
1. Arrest process and specific charges;
2. Role of judge, prosecutor, defence attorney, and jury;
3. Court procedures (e.g., can disagree with witnesses who testify
ii. Consequence of proceedings. Includes:
1. Range and nature of penalties (e.g., being sent to prison; eligibility
iii. Ability to communicate with counsel, e.g.,
1. Can communicate facts of case to lawyers
2. Can plan (or assist with) legal defence strategy
3. Can testify (if required)
4. Can manage courtroom behavior
NOTE: FIT-R does not assess mental disorders (other tests are used, e.g., DSM-IV) What happens after the assessment?
- Assessment report is submitted to the court.
- Court makes its own judgment:
o If fit to stand trial, proceedings continue
Accused can be detained in custody if reason to believe he/she
might become “unfit”.
o If unfit to stand trial, proceedings are temporarily stopped
Goal: Restore fitness (using “treatment”)
In Canada, usual treatment was medication to control mental
disorder (especially pre-2005);
Since 2005, psychological treatments are most common to
achieve criteria of fitness.
PART 2: mental state at the time of offence
R. v. Hadfield
“I may appeal to all who hear me, whether there are any casues more difficult as when
insanity becomes the subject of legal consideration and judgement”
A. What does “guilty” mean?
a. Two elements:
i. A “wrongful deed” (actus reus);
ii. Criminal (or “evil”) intent (mens rea)
1. A “guilty mind”.
B. Legal standards for determining absence of guilty mind
a. 1700s: The “wild beast” standard
i. “totally deprived of understanding; no more than a … wild beast” [R. v.
b. 1736: Lord Hale – level of understanding less than a normal 14 year old.
c. 1800s: Two important cases
i. R. v. Hadfield (1800)
1. Hadfield attempts to shoot King George III of England; charged
with treason; pleads insanity. Jury agrees:
a. Not guilty by reason of insanity.
i. Set free; Released from custody. 2. Verdict infuriates public: Accused can “get off: simply by pleading
a. Criminal Lunatics Act (1800)
i. Anyone found NGRI could be confined in mental
facility for life.
ii. Adopted in Canada (until 1992)
d. The case of Daniel M’Naughten (1843):
i. Attempts to shoot British PM (kills his secretary); charged with murder;
pleads NGRI; 9 experts agree; jury agrees.
1. Public infuriated
a. He got off?; actually, he spent the rest of his life in an
b. Queen Victoria i