Swings and Roundabouts: The Role of Judges and Psychologists in the Determination of Criminal Responsibility in the Netherlands
| Author | Marijke Malsch |
| DOI | 10.1177/136571279900300202 |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
| Subject Matter | Article |
Swings
and
roundabouts:
the
role
of
judges
and
psychologists
in
the
determination
of
criminal
responsibility
in
the
Netherlands
By
Marijke
Maisch
Senior
investigator,
NISCALE,
Leiden,
the
Netherlands
Judge,
District
Court
of
Haarlem
Dssues,
such
as
the
definition
of
the
tasks
of
judges
and
experts
in
insanity
cases
and
where
they
differ
and
overlap, have
been
subject
to
discussion
in
the
Netherlands.
Some
authors
assert
that
forensic
experts,
when
conducting
an
assessment
in
a
criminal
case,
should
not
be
allowed to give
opinions
on,
or
make
statements
about,
the
(degree of)
the
defendant's
responsibility
for
the
alleged
crime.'
Others
make
adistinc-
tion
between
the
act
of
assessing
the
degree
of
(criminal)
responsibility
(toerekeningsvatbaarheid)
on
the
one
hand,
and
the
act
of
deciding
that
some-
one
is
responsible
for a
crime
(toerekenen)
on
the
other.
The
first
task,
which
is
empirical
in
character,
falls
under
the
domain
of
the
(behavioural)
expert,
whereas
the
second
task,
with
a
normative
character,
is
left
to
the
judge." Still
others
are
of
the
opinion
that,
although
not
being
allowed to
take
decisions
concerning
responsibility,
behavioural
experts
can,
and
even
should,
make
~
Haffmans, De berechting van de psychisch gestoorde delinquent (Gouda
Quint:
Amhem,
1989);
I
~ieboer.
Aegroto
suum
(Boom: Meppel, 1970): Wagenaar, 'The
Proper
Seat; ABaysian Discussion
of
the
Position
of
Expert
Witnesses'
(1988) 12 Law and Human Behavior
499-510.
2See van Leeuwen, Altijd onvoltooid; Overtoerekeningsvatbaarheid (Gouda
Quint:
Arnhem,
1986).
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
87
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