Psychological Autopsies: Legal Applications and Admissibility
| Date | 01 January 2001 |
| Published date | 01 January 2001 |
| Author | David Ormerod |
| DOI | 10.1177/136571270100500101 |
| Subject Matter | Article |
Psychological autopsies:
Legal applications and
admissibility
I
By
David Ormerod*
University
of
Nottingharn
yan James, a veterinary surgeon, was jailed for murdering his first
wife by poisoning her with horse anaesthetic and his appeal against
conviction was rejected. Three years later, the woman with whom he
had been having an affair at the time of the death, and whom he had married
in jail, found the deceased’s suicide note. Echoing an earlier letter to James, it
read simply: ‘Ryan,
I
leave you absolutely nothing but this note-if you find it
in time. Sam.’ The Criminal Cases Review Commission referred the case back
to the Court of Appeal where the prosecution accepted that the note was in
the deceased’s writing and was written approximately one week before she
died. The Court of Appeal quashed James’ conviction as being unsafe,
accepting that had the note been discovered before the first trial, James
would probably not have been prosecuted. Was it not possible to determine
the deceased’s suicidal intent without reference to the note? Had an expert
been available to testify at the first trial about the other indicia of suicide
perhaps James would never have been convicted. In cases such as this. a
technique known as a ‘psychological autopsy’, which has been developed in
the United States, could be relied upon.
As
suicide rates increase.’
so
too will the number of equivocal deaths-those
in which it is uncertain whether death was a result of suicide, accident
or
homicide.’
Any
technique that helps in the resolution of the legal issues
arising from such deaths would be invaluable. It could assist in coroners’
’
I
am grateful
for
comments on earlier drafts from Professor Michael Gunn. Nottingham Trent
University, and Professor David Canter, Director of the Investigative
Psychology
Department at
Liverpool University. The article is a revised version of seminars presented at the University
of
Liverpool, September 1998. and at the
Law
Faculty
of
the University of Hong Kong. January
1999.
1
There are reported
to
be approximately 4.500 suicides pa in the United Kingdom: see
Our
Healthfer
Natfon
(HMSO:
London. 1998) and comments in (1998)
BMJ
317 at 156.
2
Between 5% and
20%
of deaths are estimated to be equivocal:
E.S.
Schneidman. ‘The
Psychological Autopsy’ (1981)
11(4)
Suidde and
Lrfe
Threatening Behavtour
325.
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PSYCHOLOGICAL AUTOPSIES: LEGAL APPLICATIONS AND ADMISSIBILITY
inquests, the decision whether to prosecute, and more broadly in all cases
where the deceased’s state of mind is in issue. However, is this technique
reliable,
or
nothing more than ‘junk science’, creating more problems than it
claims to resolve?
Is
the psychological autopsy yet another opportunity for
social scientists to ‘cloak an investigation concerned with the soft-data of
attitudes and feelings in the mantle of exactitude conveyed by medical and
physical science as in the use of the term a~topsy?’~ This article examines the
potential legal applications and admissibility of an autopsy.
An initial wariness of the psychological autopsy must be recorded, not only
because it has connotations of the psychological profile (which has been
shown to have potentially dangerous consequences in criminal trials4), but
also because, if such a reliable technique exists, it would surely already be in
widespread use. In the United States, there has been judicial consideration of
the difficulties of admitting such evidence, but as yet, there is no judicial
or
academic consideration of the problems in English law. The conclusion is that
English law is taking such a liberal approach to admitting expert evidence
that it would be admitted despite numerous deficiencies.
The psychological autopsy
Before beginning to address the potential defects in this technique, it is worth
noting that there is no universally accepted
definition
of this
Various labels have been used to describe it including psychological autopsy,
psychiatric autopsy, retrospective mental assessment, reconstructive psycho-
logical evaluation, and posthumous psychological profile. The absence of a
clear, accepted definition could have an impact on legal admissibility but
is
not determinative. It must also be noted that mere use of the label ‘autopsy’
3
J.
Selkin. ‘Psychological Autopsy: Scientific Psychohistory or Clinical Intuition?’ (1994)
Americun
Psychologist
74; S. Odgers and
J.T.
Richardson, ‘Keeping Bad Science out of the Courtrooni-
Changes in American and Australian Expert Evidence Law’ (1995) 18(1) UNSWL
J
108; D. L.
Faigman. ‘To Have and Have Not: Assessing the Value of Social Science to the Law as Science and
Policy’ (1989) 38 Emory LJ 1005.
4
D. C. Ornierod. ‘The Evidential Implications of Psychological Profiling’ 119961 Crim
LR
863;
J.
McEwan.
‘
”Similar Fact” Evidence and Psychology: Personality and Guilt’ (1994) Expert
Evidence 113; S. Ingram. ‘If the Profile Fits: Admitting Criminal Psychological Profiles into
Evidence in Criminal Trials’ (1998) 54 Wash U
J
Urb and Contemp Law 239.
5 On the history, see
J.
Diller. ‘The Psychological Autopsy in Equivocal Deaths‘ (1979)
Perspectives in
Psychiatric Care
156; D. Jacobs and
M.
Klein-Benheim. ‘The Psychological Autopsy:
A
Useful
Tool
for Determining Proximate Causation in Suicide Cases’ (1995) 23
Bulletin ofAmerican Academy
of
Psychiatry and the Law
165 at 176-177; Schneidman, above n. 2 at 327.
6
For an outline of the autopsy procedure, see Diller, above n. 5. For a more detailed psycho-
logical autopsy, see
B.
L. Danto and
T.
Streed, ‘Death Investigation After the Destruction
of
Evidence’ (1994)
39JournaI
of
Forensic Sciences
863; D.V. Canter, ‘Equivocal Deaths’ in D. Canter
and
L.
Alison (eds)
Offender Profiling
Series
II:
Profiling in Policy and Practice
(Ashgate: Aldershot.
1999).
2
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