Psychology and the law Chapter 2
Forensic (medico-légale) psychology in police investigations
Part 1: Fitness to stand trial:
A. What does “fitness” mean:
- To receive a fair trial, people should be able to defend themselves against accusers.
B. What if person is unfit to stand trial?
Person should not be tried.
How do we know if a person is fit (or unfit) to stand trial?
C. Legal standards for determining fitness
1. Prior to 1836: “ability to enter a 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 bestiality. Also a deaf-mute, so couldn’t enter plea;
couldn’t be tried for the crime.
- Court establishes clearer legal standard:
- able to enter a plea AND 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 mental disorder and this mental disorders interferes with
ability to conduct a defence.
Three criteria or elements necessary to show:
1. Understand nature and object of proceedings
2. Understand possible consequences
3. Communicate with counsel.
Three other things to note in section 2:
-fitness assumed unless unfitness is shown “on balance of probabilities” (lower standard than
“beyond a reasonable doubt”.
-party raising issue has burden of proving unfitness
-the court determines whether burden is met (whether accused is “fit” or “unfit”) to be trial on the
balance of probability.
D. Assessing (juger) fitness to stand trial
1. Who can make an assessment? - Prior to 2005, only “medical doctors” can provide assessments to courts (don’t have to
be “experts” in mental disorders), how ever
- In 2005, expanded to include “other qualified professionals” (include psychologists)
2. Another role of psychologists:
- Develop the tests that are used to assess fitness(they can administrate the test, but they
can’t provide behind a court).
3. How is fitness assessed?
- Show that person has mental disorder, AND
- Disorder interferes with criteria in section 2
Fitness Interview Test-Revised (FIT-R) (revised pour rajouter les 3 critères)
- Has three sections:
Nature and object of proceedings. Include: arrest process and specific charges (do you
understand what that’s means) / role of judge, prosecutor, defence attorney, and jury /
also understanding court procedures (e.g. can disagree with witnesses who testify again
- Consequences of proceedings. Include e.g. range and nature of penalties (being sent to
prison, eligibility for parole)
- Ability to communicate with counsel (can communicate facts of case to lawyers)/ can
plan (assist with) legal defence strategy / can testify (if required) / can manage
Note: FIT-R does NOT assess when the accuse has mental disorders (other tests are used, e.g. DSM-
E. What happen after the fitness assessment
- The assessment report is submitted to court.
- Court makes its own judgment.
If fit to stand trial, proceedings continue.
.Accused can be detained in custody (garde à vue) if reason to believe he/she might become
If unfit, proceedings are temporarily stopped:
.Goal: restore fitness (using “treatment”)
.In Canada, usual treatment was medication to control mental disorder (pre-2005) (why??
Because it was medical doctor who do the assessment)
.Since 2005, psychological treatments are more common to achieve criteria of fitness.
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 the subject of legal consideration and judgment. (on ne sera pas testé dessus)
A. What does “guilty” mean?
Two elements must be present:
1. A “wrongful deed” (actus reus)
2. Criminal (or evil) intent (mens rea): A “guilty mind”
B. Legal standards for determining absence of guilty mind.
- 1700’s: the “wild beast” standard:
.standard should be:”Totally deprived of understanding; no more than a… wild beast” (R.
- 1736: Lord Hale : level of understanding less than a normal 14 years old.
- 1800’s: Two important cases:
1. R.v. Hadfield (1800):
. Hadfield attempts to shot King George II of England; charged with treason; pleads
insanity. Jury agrees:
Not guilty by reason of insanity.
. Verdict infuriates public: Accused can “get off” simply by pleading insanity?
The criminal Lunatics Act (1800):
- Anyone found NGRI could be confined in mental facility for life.
ADOPTED IN CANADA until 1992.
2. The case of Daniel M’Naghten (1843)
- Attempts to shoot British Prime Minister (kills his secretary) charged with murder; pleads
NGRI; 9 experts agree; jury agrees.
. Public is infuriated (he got off?; actually, he spent the rest of his life in an insane
asylum). The condition at that period in a asylum was not very better than prison.
. Queen Victoria is also “not amused with verdict (she was target of 3 assassins; 1 found
NGRI) => she demands a tougher (durcissement) standard for insanity defense.
The M’Naghten Rule (defines new standard for NGRI). Three elements. Accused:
- Suffered from defect o