Manual A Culpable Innocence: The American Dream Reprised

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As we have seen in Colorado v.

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Connelly , 36 the fact that a suspect may confess for psychotic reasons does not imply that the statement is involuntary, at least by constitutional standards. Thus, if the police are but passive recipients of incriminating information, there may not be a civil rights issue. Nevertheless, false or incompetent statements admitted as evidence may lead to serious miscarriages of justice.

Concerns surrounding expert testimony have recently been reviewed by Watson and colleagues 37 and by Davis and Leo. According to The Innocence Project, 25 percent of convictions reversed by DNA evidence included incriminating statements, outright false confessions, or guilty pleas. Wharton was not troubled by the involuntary unintended nature of some confessions, as they arose through a natural psychology and not by external coercion.

There is no evidence in his monograph, however, that he favored coerced confessions, and he had read Bentham on the subject. The privilege against externally compelled self-incrimination developed during the fall of ecclesiastical law in England during the time pilgrims fled to America. This right was not present in the Magna Carta, but was among the newly granted civil rights of British subjects and appeared among several colonial constitutions before its appearance in the Bill of Rights in Before Wharton's time, confessions were so important in criminal adjudications on both sides of the Atlantic that an accused's failure to enter a plea to stand mute was met with torture or death by pressing peine fort et dure.

This practice was unlawful in America, although there was at least one such execution in connection with the Salem witch trials. It was not until Wharton's treatise that we see a psychological approach to the forces operating on individual suspects. By the time of Wharton's treatise on confessions, the American tradition of protecting citizens from self-incrimination was well established.

His analysis of false confessions, like Isaac Ray's Treatise , 2 retains vibrancy and freshness. The fact that the American Journal of Insanity reprinted attorney Wharton's work is remarkable. Beck's revised by Gilman work on medical jurisprudence were reviewed.

Gray, who replaced T. Whereas the anonymous book reviewer presumably Gray elevates these authors to Olympian status, placing them in a distinguished lineage of jurisprudence scholars, no mention of Isaac Ray's work is to be found. Gray was firmly entrenched in the idea of free will and against heretical views expressed by transcendentalists and phrenologists.

In his anonymous review of Ray's Mental Hygiene in , 46 Gray criticized many aspects of his colleague's philosophy, concluding: Aside from the one fatal doctrine [moral insanity], so persistently urged as that even if true it must perplex and deter the reader, we can only speak ill terms of unqualified admiration of the whole book. As it is, we confess to a feeling of impatience that so much matter of the highest importance to the welfare of community should be deprived of its practical value by a union with the false philosophy of a past age [Ref.

Wharton derived much of his early understanding of moral insanity from Ray's writings, but moved closer to Gray's position against moral insanity during the revisions of his textbook. Ray, meanwhile, was critical of Wharton's methods in an review of Mental Unsoundness ; in the book, Wharton criticized Ray for a paucity of legal citations. As Tighe 6 illustrates, Wharton's views toward moral insanity became more negative with each edition of his Medical Jurisprudence containing Mental Unsoundness , thus cleaving away from Ray's point of view.

This divergence is evident as early as Wharton's second edition in , and by the edition, the anti-moral-insanity view was the consensus. Here, the state would not define insanity as a matter of law. Instead, the jury, after hearing expert testimony, would conclude, as a matter of fact, whether the defendant was insane. Although depravity alone would not qualify as insanity, New Hampshire juries were not hamstrung by the M'Naughten Rule, which had already been adopted in many American jurisdictions.

Wharton felt the need to publish New Hampshire Judge Doe's entire opinion in the Pike 48 case for the purpose of knocking it down; a jury, he argued, would be incompetent to make a determination of insanity. For someone like Gray, to consider the possibility of psychological dynamics leading to false confessions smacked of moral insanity, that an individual could be overcome by impulses, perhaps not even be aware of them, and lose the power of reason.

There was no psychoanalytic theory yet, only a deistic formulation. Why, then, would the Journal of Insanity have embraced Wharton's formulations while not mentioning Ray's? The most likely reason was that Gray viewed Wharton as a kindred spirit in terms of adherence to deistic ideas, not one given to fads and fancies in medical jurisprudence, or to coddling the depraved. The importance of religious thinking as a substratum of the moral insanity debate has been thoroughly discussed by Belkin. By the end of Wharton's life, legal science had become firmly secularized.

Although Wharton was a master raconteur, his illustrative examples, especially from Britain and Europe, were excessive. There is no significant philosophical shift in his views on confessions. Even here, he stretches mightily for a materialistic theory to explain how the wicked memories of the criminal can resurface. Quoting Dr. Maudsley's formulation: [I]n a brain that is not disorganized by injury or disease, the organic registrations are never actually forgotten, but endure while life lasts; no wave of oblivion can efface their characters.

Consciousness, it is true, may be impotent to recall them; but a fever, a blow on the head, a poison in the blood, a dream, the agony of drowning, the hour of death, rending the veil between our present consciousness and these inscriptions, will sometimes call vividly back, in a momentary flash, and call back, too, with all the feelings of the original experience, much that seemed to have vanished from the mind forever [Ref. How can Wharton's formulations inform contemporary forensic psychiatric practice?

Wharton's anecdotes suggest a Sherlockian technique of using the minutiae of a suspect's words and deeds as evidence, the underlying theory being that the criminal has a drive if not a compulsion to confess. A simple clinical interview of a defendant is not sufficient to derive meaning from an incriminating statement. The forensic professional must be aware of the totality of the evidence, which is where Wharton's advice rings true.

Although such detective work by forensic professionals may indeed serve a law enforcement function, there may be admissibility problems. For example, one can imagine an evidentiary hearing on the admissibility of a slip of the tongue or talking in one's sleep as scientific evidence of an involuntary confession.

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Even though such pieces of the puzzle may serve a folk-psychological or persuasive function, our theory of knowledge would not necessarily support the opinions. Among the gifts of the 19th century's Gilded Age is the power of observation and attention to detail. Whereas a reader today might consider some of Wharton's anecdotes tedious, ignoring the context and details of the defendant's story is substandard forensic psychiatry.

A forensic professional cannot glibly interpret what appear to be incriminating data—even a confession—in the service of law enforcement.

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The resulting work product should not evidence a moral trajectory. Griffith and colleagues 52 emphasize the importance of an expert's narrative. The authors insist on ethical vigilance in the reporting of narrative details that have significant implications for a criminal defendant. We do not have that latitude. Thus, to cherry pick aspects of a case and seize the narrative for rhetorical purposes is disingenuous and ethically dubious, although we sometimes limit detail to protect the subject.

Ideally, the forensic expert would want to contextualize fully the defendant's behavior and motivations while maintaining scientific objectivity. This would mean, among other things, coming to terms with the source of a criminal's guilt feelings, be they spiritual or neurotic. As we practice today, it would be out of place to take the overt position that an incriminating statement is reliable because it redeems the criminal in God's eyes or that it is not reliable, because the individual is neurotic and acting out a need for punishment.

Yet, these are aspects of reality requiring reflection by experts and their intended audiences.

Wharton was on a different mission: to serve God and to ensure that the guilty were brought to justice. It vexed him that Isaac Ray's activism interposed a jury to determine insanity as a factual matter in New Hampshire. An ethical expert witness, then, could be a potential roadblock in the path toward divine justice. Our job is to gather facts and to synthesize them, so that judges and juries can resonate with them and their experiences and attitudes.

The harder part is to maintain objectivity and empathy without being insensitive to domains beyond the clinical and legal.

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Classics in Psychiatry and the Law: Francis Wharton on Involuntary Confessions

NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. We do not capture any email address. Skip to main content. Research Article Regular Article. Kenneth J. Abstract Philadelphia attorney Francis Wharton was a key intellectual figure in linking the sciences of medicine and law. Figure 1. Figure 2. Wharton's Taxonomy of Involuntary Confessions Wharton believed in the integrity of conscience such that, one way or another, a criminal will broadcast guilt before, during, or after the crime.

Direct This would be analogous to what we would call terroristic threats. Ambuscade Here, the victim is taken by surprise, often having been lulled into a false sense of security. Prophetic Some murderers are animated by a supernatural, fanatical feeling. Evidence at Crime Out of anxiety, the criminal broadcasts clues to culpability. Incoherence at Crime This refers to mistakes made during the commission of a crime, often in regard to avoiding detection. Self-Overreaching In this instance, the perpetrator does something obvious, such as writing letters disavowing knowledge of the crime, or issuing correspondence that is meant to be only for the co-conspirators' eyes but is preserved for others to read.

Evidence After Crime: Involuntary Confessions Confessions of wrongdoing, according to Wharton, leak out of the criminal uncontrollably. Convulsive Confession In this section, Wharton assumes that persons who commit murder possess a conscience. Delirium Wharton gives the example of a murderer in Ohio named Stringfellow, who was suspected but not charged.


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The Dreaming State This type is more common than delirious confession. Delusions Wharton cautions that, before a confession can be accepted as valid, it should be tested, because delusions can produce false confessions. Other Indicia and Dynamics of Guilt Remarkably thoughtful and comprehensive, Wharton's schema extends to oddities of human behavior that give rise to false confessions. Obtaining Notoriety Wharton describes what amounts to a variation of factitious disorder: morbid vanity mixed with hypochondriasis.

Nervous Tremor Wharton cites the old superstition that a corpse would bleed when touched by the hand of the killer; the killer's hand, in turn, would tremble. Morbid Propensity to Recur to Scene and Topic of Guilt Wharton insists that the urge to confess is nearly irresistible: [Criminals] are ever on the precipice-brink of discovery, and often comes this convulsive impulse, to throw themselves, blood-stained and confessing, into the chasm below.

Animosity Among Confederates The keeping of secrets among criminal confederates may give rise to paranoia and further violent acts.

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The Spiritual Connection Wharton was an ordained Episcopal priest and a believer in redemption. Figure 3. Evolving Formulations It appears that Bentham understood that criminals often lack common sense and that they betray themselves with either guilt or hubris. Twentieth-Century Formulations In the early 20th century, suspects were expected to give confessions irrespective of mental state or capacity.