Psychology and the Law 2
Chapter 2: Forensic Psychology in Police Investigations
Todays lecture: Fitness to stand trial and mental state at the time of offence
How psychology can be applied outside the classroom, forensic psychology and
Persons mental state at the time of the trial- whether the accused is fit to stand trial,
persons mental state at the time of the offense- whether the accused is responsible
for his or her behavior
Part 1: fitness to stand trial
A. What does fitness mean?
- To receive a fair trial people should be able to defend themselves against their
B. What if a person is unfit to stand trial?
- The person should not be tried
Q: how do we know whether a person is fit or unfit to stand trial?
C. Legal standards for determining fitness
1. Prior to 1836: the accused had to have the ability to enter a plea
- Two distinct reasons for not entering a plea:
- A defendant could be "mute of malice" -- deliberately silent to not enter a
plea (can use torture to extract a plea)
- "Mute by visitation of God" (e.g., deaf, mute, or insane) -- if so, person
should not be tried
2. In 1836, R (regina or reicht- Latin for king or queen). vs. Pritchard: charged with
bestiality, which was considered a crime against the crown. Also a deaf-mute so
couldn't enter a plea, couldn’t be tried for the crime
- Court established clearer legal standard:
- Able to enter a plea
- Must have "sufficient intellect" to understand proceedings.
Canada's fitness standard for the next 156 years
3. Canada's bill C-30 (1992): revisions to Section 2 of the criminal code (provided a
new fitness standard)
- Person is unfit to stand trial if it can be shown that a person has a mental disorder
and that disorder interferes with their ability to conduct a defense (
- Code also lists three criteria, or "elements", the person must be unable (because of
mental disorder), to:
1. Understand the nature and object of the proceedings
2. Understand the possible consequences of the proceedings
3. Unable because of mental disorder to communicate with counsel Three other things mentioned in section 2:
- Fitness is assumed unless unfitness is shown "on balance of probabilities" (lower
standard than "beyond a reasonable doubt") - more probable than improbable
- The party raising the issue has the burden of proving unfitness
- The court is responsible for determining whether the accused is fit or unfit to stand
trial on the balance of probability ("whether burden is met") -- the court = a judge
D. Assessing fitness to stand trial
1. Who can make as assessment?
- Prior to 2005, only "medical doctors" can provide assessments to the courts (didn't
have to be "experts" in mental disorders)
- In 2005, section 2 was expanded to include "other qualified professionals"
2. Even when they weren’t allowed to make fitness assessments, psychologists
always played an important role:
- Developing the tests that are used to assess fitness
3. How is fitness assessed?
- Show that the person has a mental disorder, AND
- The disorder interferes with the 3 criteria in section 2
- Fitness Interview Test - Revised (FIT-R) was revised in order to take
account the 3 criteria
- FIT-R is divided into 3 sections for the 3 criteria
- Whether the person understands the nature and object of the proceedings.
- Arrest procedures and specific charges
- Role of judge, prosecutor, defense attorney, and jury;
- Court procedures (e.g., can disagree with witnesses who testify
against him/ her)
- Consequences of the proceedings, includes, e.g.,
- Range and nature of penalties (e.g., being sent to prison; eligibility
- Ability to communicate with counsel, e.g.,
- Can communicate facts of case to lawyers
- Can plan (assist with) legal defense strategy
- Can testify (if required)
- Can manage courtroom behavior
** Keep in mind that unfitness only has to be show on the balance of probability!
*** Note: the FIT-R does not assess mental disorders (Other tests are used- DSM-IV)
E. What happens after a fitness assessment is made?
- An assessment report is submitted to the court, and then the court makes it's own
- If fit to stand trial, proceedings continue (doesn’t necessarily mean that this
person is going to be released from custody, but the accused can be detained
in custody if there is reason to believe that this person will become unfit to
stand trial - If unfit to stand trial, the proceedings are temporarily stopped (the goal is to
restore fitness- involves some kind of treatment). In Canada the usual
treatment was medication to control the mental disorder (esp pre-2005)
- Since 2005, psychological treatments are more common to achieve criteria
Part 2: Mental State at the time of the offence
" I may appeal to all who hear me, whether there are any causes more difficult as
when insanity becomes to subject of legal consideration and judgment"
- R. vs. Hadfield, 1800
A. What doesn’t "guilty" mean? Two elements must be present
1. A "wrongful deed" (actus reus)
2. Criminal or evil intent (mens rea); must be a "guilty mind"
These two things may not correspond with each other
B. Legal standards for determining absence of guilty mind
- 1700's: the "wild beast" standard; totally deprived of understanding; no more than
a wild beast" (R. v. Arnold, 1724)
- 1736: Lord Hale (a judge) redefined it as: level of understanding is less than a
normal 14 year old
1800's: two important cases
1. R. v. Hadfield (1800): Hadfield attempted to shoot King George III of