as to whether he's competent to stand trial at all. you are watching the constitution, that delicate balance. all right, mr. fuller, it comes to a point where you're now getting ready to go to trial. you're planning your strategy still. you've decided you want to go with an insanity defense, and you're now at the point where you need a psychiatrist or psychiatrists to examine your client with the idea in mind that maybe they'll testify on the defendant's behalf. how do you find the psychiatrist? sitting in your office... "hey, i need a psychiatrist." it's a difficult job. you look in the phone book?

hardly. you may be fortunate enough to know one. are you looking for psychiatrists who you think will testify for the defense? is that a class of psychiatrists? i wouldn't look for that. i'd look for a psychiatrist who would give me the most honest, the most professional appraisal of the man's mental condition-- his legal responsibility, if you will-- at the time of the offense. you go down the list and you come to the name "gaylin." "i've heard that name before, a reputable person." would you think of calling him? i might. you just call him? i'd go see him. i'd make an appointment to see him. why see him? i want to get some reaction from him.

he has a role as a potential witness. you want to screen-test him. in a measure, indeed. i'm unconcerned whether he's ever testified before. i'm not looking for a professional witness. i want somebody who can make a decent presentation to a fact-finding body. somebody who will look good and speak well and be persuasive. be articulate, be able to communicate with the jurors to whom he's talking, not talk over their heads. that's what you want to size up. so how about gaylin? are you agreeable to interviewing his client? i wouldn't waste my time doing that. i know i wouldn't be used. it's not that i'm so inarticulate, but they won't hire me.

they'll interview me and find many ambiguities, questions, confusions, and principles. and the last thing they want are principles. they want someone articulate who can speak to a jury without fancy language, someone who'll keep facts simple. i can't do that. facts are complicated. i'll make them complicated. say it in language that's not fancy. why won't he hire you? i won't give clear-enough facts ordered in a way that they'll be useful for his defense. what does he want you to say? he wants me to take all these confusing facts-- many of them contradictory-- and in layman's terms, organize those facts that point a clear arrow of consensus to innocence for his client. i'm not trained as an advocate.

i'll come as a witness under oath, putting my professional integrity on the line to present the facts, which will be confusing, hoping that a jury will use those facts to act on their heart the way they want. mr. spence certainly wouldn't hire me. he's right. so you really are making the proposition that any psychiatrist who testifies becomes an advocate. anyone who's invited becomes an advocate. why invite someone who won't become an advocate? others will become. being an advocate is the job. no, it's a moral compromise of my position. the words "expert" and "witness" mean something. if i'm an engineer testifying about why this ceiling falls on us,

i should be as an engineer testifying, as a witness. his job is to be an advocate. he knows that certain psychiatrists will enhance his advocacy case. he'll get someone less ambivalent, ambiguous, and intellectual than i am. well, let's try dr. roth. doctor, clean slate, no contact with this case before. defense lawyer calls you on the phone. says, "doctor, could i come see you?" yes? yes. you understand he's coming to look you over. surely. i understand. he says, "would you examine my client?" yes. if i'm interestedin doing e and i've heard a little about it and i have the time. this isn't the main thing i do, but if i thought i'd learn something,

i'd do it. you're not a professional witness. no way. there are very few psychiatrists like that. very few, really. may i suggest to professor nesson, a question, really, that we must answer ultimately is whether this system of having antagonist psychiatrists-- three, four on one side, or three or four on the other side-- submitted to a lay jury for an ultimate determination as to whether the man is not guilty by reason of insanity-- what do we do about that? are we playing games of semantics? we're asking lay people to judge these expert psychiatrists and determine which one is telling the truth. and, mind you, they're only giving opinions.

they're not testifying as to facts. what's shocking about having psychiatrists on both sides in a legal case? we're living in a jurisprudential, adversary system in which in all kinds of cases-- structural steel cases, postal cases-- expert witnesses are brought in on both sides to do the best job they can. the reason i say what i do about psychiatry is that it is such an inexact science. although it is utilized in so few cases, there's nothing that shocks the public as much as a verdict of insanity. i don't say the public is right, but i say you're treading on different territory when you're dealing with the field of psychiatry than you are with a steel case

or other adversary proceedings. the defense attorney says, "will you see the patient?" you see and evaluate the patient. there are ambiguities. you say to yourself, "i could see an opinion going this way. i could see an opinion going that way." mr. fuller wants you to testify for him. he won't pay you unless you do. i understand that. i'll share with him my knowledge of the case. he'll tell me, "is this helpful? what do you believe?" he may determine that my opinion will not be helpful, so i won't be a witness. he'll go over what your testimony might be. "might you testify this way?" right. "would you feel it necessary to say that?"

right. you know that he's making a judgment based on your answers as to whether you'll be hired as a witness. that's true. you only do this occasionally, but if your livelihood depends on his judgment, and therefore on your answers to his questions... it's understood if you're working on a particular side that you'll identify with the objectives of that side. that's human nature. you'll use your scientific ability to put forward the most powerful case that's consistent with the defense persuasively. persuasively, if possible. i don't see anything wrong with that. is that view of being a psychiatrist consistent with your ideas of what a professional witness is, psychiatrist witness? i feel very strongly

that the problem is not the inexactness of the science of psychiatry. psychiatry is an inexact science, and i don't want to debate that. but the problem is that the question the law is asking doesn't have an answer that we have. i claim you can't solve this because these people don't fit into your game. the ambiguity of what they do, the ambiguity of their motives, the ambiguities of their intentions does not fit into the comfortable rules of the courtroom. and so? you must face the fact that this won't be solved by having the judge appoint a psychiatrist. dr. roth must face the fact that this won't be solved by having more scientific psychiatrists testify.

people concerned about this must face the fact that the legal system isn't perfect, and this is one of the ways in which it is imperfect. but if i'm the judge, i'm going to appoint myself a psychiatrist. and i'll say to that psychiatrist, "testify, because if you key people can't help us, who'll be able to?" they are behavioral scientists, supposedly at the cutting edge of the knowledge of human behavior. if a juror can't rely on help from them, where will they get it? the jury should be confused. to clear it up for them is to distort the realities, right? in the end, it's closer to the truth if the jury is confused

than if they think they've got the answer. let's see what they're confused about. they're not confused that harvey brink is crazy, but about whether he's guilty, whatever thameans. that's right. isn't that where the problem lies? if all they wanted from psychiatrists-- and they'd have problems with that-- if all they wanted was some discussion of the exact nature of harvey brink's mental illness, hopefully, psychiatrists are getting better at that. if, however, what they want to know is, what is the connection between that mental illness and this crime, it's at that point that we can't give them the answer. mr. frank, t you stand back from this situation.

further and further. you see every participant in the process saying, "this is a mess. i need help somewhere else." we should first have a trial with a jury about whether harvey brink knowingly pulled the trigger. if he thought he was shooting a windmill, we put him somewhere else. but if we get by that minimal standard of competence-- competence to stand trial-- and he's found guilty, then a second question arises. given that this person pulled the trigger willingly and killed someone, what do we do with him? the jury can answer that? no. i'd have a separate proceeding in which we decide what form of confinement the person has. the public is shocked at the notion

that you're not guilty because you were insane. he was guilty. he willfully killed someone. people who kill other people ought to be kept away from the rest of us. you've just abolished the insanity defense. yeah. the notion that society won't penalize you because you were insane when you pulled the trigger doesn't appeal to me. and the notion of cure... that you'd be crazy enough to kill someone and then within a short time be safe for everyone else to associate with is one i'm skeptical of. we live in a society that assumes that people ought be responsible for their actions. this society also has the minimal compassion to recognize that certain people aren't responsible.

we've recognized that for 1,500 years. people with a propensity to shoot others ought to be jailed-- i.e., the rest of us should be prevented from being shot at. what kind of treatment they get during confinement is different. whether we're morally censorious of them is different. do you disagree that he should be jailed? were i a juror, i'd vote on the insanity defense, in this case, very tightly. i wouldn't be offended if the jury decided differently. the craziest are rarely found innocent even if they've pled that way. certain crimes are so heinous, jurors want them punished. for purposes of social order, it may be well paying that small price of injustice in one case so we'll send absolutely crazy people to punishment.

i'm not disturbed by that. you say you wouldn't be offended if the person were convicted. i'd be frightened if they weren't confined. people who shoot candidates for public office make me very nervous. i'd like seeing them restrained. governor thompson, how should we handle this? the real issue is, where does harvey brink go now? most would agree he shouldn't go back to political meetings anymore. he must go to a prison or a hospital or a prison hospital. he ought to be seen regularly by doctors so that if he can be sucked out of his delusions, we can do that for him. he can't be a free person anymore. this jury's been sitting in the box

waiting to get at the disposition of harvey brink. they may not be as confused as we are. they may conclude that anybody who closely tracks a political candidate and is capable of buying a gun and going to meetings... he's probably competent to stand trial, probably competent to conduct his own defense. he's probably not so crazy, but he shouldn't be free. the law should say that. isn't the real question, what happens to him after he's been confined? let's assume he's acquitted on grounds of insanity. he's then confined. is he cured? this inexact science and these inappropriate legal rules get applied to a really important question-- when do you release him? that's what's frightening about the insanity defense.

dangerous people, whether they're responsible or not, but who have the propensity to commit murder, are released based upon an inexact science and very often inappropriate rules. that's the most important question. the rest is important, but somewhat theoretical. what about intent? nobody paid any attention to whether or not he had any intention or mens rea. he was guilty. are we going to have another system of justice in america? i haven't heard mens rea or intention mentioned at all. we've bypassed that crucial finding that the jury must make in this ca. the jury must either find this person guilty or not guilty by reason of insanity. the jury must make the determination, the ultimate determination of guilt or innocence.

we've got this person in a mental institution without the jury making that determination. that must be done. mr. spence, you look unhappy. i thought i could never agree with judge kaufman, but i find that i embrace him when he says, "how is it that we put people in prison "when we haven't determined "whether they had any intent to kill, whether there was a mens rea." in this country, we don't punish people who don't intend to kill. in this country, we have, from the very beginning, demanded that people be guilty of a crime, that somehow they have committed some malicious crime against society, and insane people don't fit that. they don't intend to do what they do.

but you say we haven't been talking about the alleged assassin, murderer. we haven't mentioned the name of the victim. time heals anger, but it doesn't resurrect the deceased. there is, in some sense, accountability here. i lament somewhat that the whole argument gets cast around the issues of the person who is your client. the question seems to me... it isn't a question of revenge that you raise, although i hear that somehow we need to-- accountability. how do you punish somebody who's not accountable, somebody who is insane? in a sense, that really is the hard question. how do you assess this idea of responsibility? what mr. gaylin has been suggesting,

what judge klein has been suggesting is that there are some small, few cases in which people do act and in which he or she would truly say they're not responsible. the public thinks if they're that crazy, they probably need treatment for a long time. i agree. "how fast is he going to get out?" seems a somewhat obscure question. but it's an important question. i think society has a great interest in that. but there's a distinction between trying to treat the insane and punishing the insane. the issue is, how does society cope with this lonely, estranged individual who suddenly enters into our lives by a bizarre act against a public official?

how do we cope with him? my question is not even punishment or penalty. it's how we cope with what we or our children might be called upon as officials-- but we must do this in a way that we can live with. tomorrow it may be you, your child, or your close friend. we always see these things as separated from us. it's that man out there we must protect ourself against. but tomorrow suddenly you're saying to a court, "please understand that this is little johnny," or "this is me. i was crazy. can't somebody understand me?" so when we deal with the rights of those who are somehow strangers out there, we're also dealing away our own rights

and the rights of our loved ones. we heard judge kaufman and attorney gerry spence refer to a legal term called mens rea. what does that mean? it's latin. it means "a guilty mind." but that generally has been meant to stand for secific intent. it's a tradition of angl0-american law that nobody can be convicted of a criminal offense unless he's had a deliberate intent to commit that offense. what is the legal basis for the insanity defense? it all goes back to a fellow named m'naghten who attempted to assassinate robert peel, who was prime minister of england under queen victoria in the early part of her reign.

but he didn't kill robert peel. he actually killed a bodyguard. his assistant. his assistant. his counsel interposed the defense of insanity. that went all the way to the house of lords, the privy council. they came out with the so-called m'naghten rules, which defined insanity as not knowing the nature and quality of your act, or the difference between right and wrong. that was the definition until recently in america. what it is now? there are 50 different answers because there are 50 states. the administration of the criminal law has been, under our system, generally conferred upon the states. could the insanity defense ever be a constitutional issue? it hasn't been so far. the insanity was not ever constitutionalized.

in fact, in powell against texas, the court rejected the idea that the constitution somehow embraced the defense of insanity or the definition of insanity. the insanity defense emerges from not the constitution. but from common law, which in our federal system is generally administered by the states. thank you, justice stewart. the way in which a society treats the criminally insane expresses some of its innermost assumptions about human nature. as one of the participants in the seminar, dr. alan stone, observed, "the marriage between law and psychiatry "is like many other marriages "in which one hears it said, i don't know what to do. i can't live with her, and i can't live without her."

like it or not, that marriage of convenience and necessity is how our system works. the insanity defense remains one of the most hotly debated legal issues. captioning performed by the national captioning institute, inc. captions copyright 1984 trustees of columbia university public performance of captions prohibited without permission of national captioning institute

this seminar was videotaped in june, 1983, and has been edited in sequence. the constitution, that delicate balance, is a 13-part education series. for informatio annenberg media ♪

for information about this and other annenberg media programs call 1-800-learner and visit us at www.learner.org.

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