In Part 1 we explored the practical role of psychiatrists in criminal trials. Now we turn to the ethical side of the psychiatrist-defendant relationship.
There is an ethical side to the “hired gun” situation. What happens if the psychiatrist agrees to evaluate and testify for the defendant, but after evaluating the defendant the psychiatrist forms the opinion that at the time of the crime the patient knew what he or she were doing and was in control? In the doctor's opinion, then, the defendant was guilty, and responsible for his actions. Can the defendant now say that he doesn't want this information to be used in court?
In reality the defense attorney’s and the psychiatrist’s questioning generally goes something like this. The defendant will make the first move. The defense attorney will call a psychiatrist they know, who may be someone good or not so good. They may even be part of the pool (hired guns) I referred to earlier. This doctor will be asked to examine the client who is facing criminal charges. The less knowledgeable psychiatrist might decide right at that moment either to evaluate the defendant or not. The more knowledgeable one will first ask what the defense wants the defendant examined for, and what is the exact psychiatric legal issue they want to have explored.
The inexperienced attorney may not be prepared for that kind of question, and may ask the doctor what they mean. The doctor may say that the defense attorney is raising the question as to whether or not, at the time of the alleged event, the defendant was criminally responsible, or was acting under “extreme emotional disturbance.” Extreme emotional disturbance (“EED”) generally is interpreted to mean the emotional state of an individual who 1) has no mental disease or defect that affects accountability; 2) is exposed to an extremely unusual and overwhelming stress; and 3) has an extreme emotional reaction to it, as a result of which there is a loss of self control, and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions. In short, if a person has had time to cool down and then act on their intentions to harm someone, this would not be EED.
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