Need Seen for Psychiatric Testimony

A leading expert in psychoanalysis and criminology said Saturday that California voters made a big mistake in 1982 when they overwhelmingly approved a ballot initiative that restricted the use of psychiatric testimony in the courtroom.

Dr. Bernard Diamond, a psychiatry professor at the University of California Medical School in San Francisco, told a group of his colleagues that a killer’s state of mind is complex and that seemingly obvious explanations for criminal behavior are often off base.

“In order to be guilty of a crime, there must be a guilty mind,” Diamond said. “It has to do with the psychology of the mind, not behavior.”

In a speech before the Southern California Psychiatric Society’s annual fall meeting at the Hotel del Coronado, Diamond said the “liberal” theories of psychoanalysis are “not welcome in the present-day conservative world.”

He said that the public’s current enthusiasm for law and order and its widespread fear of crime led to the passage of Proposition 8, which eroded the ability of criminal-defense lawyers to use insanity pleas and psychiatrists in defending their clients. Diamond also blamed the passage of Proposition 8 on the outrage that followed the 1979 manslaughter verdict against Dan White, the San Francisco supervisor who shot and killed San Francisco Mayor George Moscone and Supervisor Harvey Milk. White’s attorneys successfully used a “diminished capacity” defense, and White was released from prison last year.

“The Dan White verdict revealed the fatal flaw in the concept of diminished capacity,” Diamond said. “Judges, politicians and the public were in favor of the elimination of all such testimony in the courtroom.”

Diamond, who has written more than 50 articles and book chapters on forensic psychiatry, criminal behavior and evidence, said that psychiatric testimony should play an important role in any court case.

“I do not want to insist or encourage juries to believe in psychoanalysis theories, but I do want them to listen to my theories,” Diamond said. “Juries decide the state of mind and motives of a suspect.”

Diamond said that, since 1949, the California Supreme Court has done its best to permit psychiatrists to make realistic appraisals of murder cases in the courtroom.

While Diamond spoke about the need for psychiatric testimony, Dr. Martin T. Orne warned that accused killers cannot be set free just because they are diagnosed as psychopaths.

“The difference between crime and illness is whether we can cure it,” said Orne, who testified in the Hillside Strangler case. “We need to recognize that we cannot cure a number of circumstances, even if the diagnosis is psychopathic.”

He said he considers it irresponsible for psychiatrists to diagnose criminals as psychotic if they will gain their release because of the prognosis.

“We have to balance the good of the patient with the good of society,” Orne said. “The public needs to be protected. If we had a way of providing for the criminally insane, fine. But we don’t.”

For courtroom psychiatrists whose opinions are used to free a psychopathic killer, Orne recommends that they say “ ‘This is a case where I have nothing to contribute.’ The system will have to deal with it.”

But Orne said he has no solution for criminals who are judged to be insane and then do not respond to treatment in an institutional setting. Asked what he would do, Orne replied: “Punt.”