The term ‘forensic’ has been used in many fields of study that it could possibly confuse any person without a keen interest to understand what it really means. From TV documentaries, to fictional films, and novels, the possible number of times we are likely to encounter this term is overwhelming. Forensic sciences are numerous leading to a myriad of professions; there is forensic anthropology, forensic pathology, forensic engineering, and forensic linguistics, just to name a few. Forensic as a concept would refer to anything pertaining to law and would ideally be used in court to realize the ends of justice. Thus the proper understanding of forensic psychology is that in itself it is broadly a research and application of psychological knowledge to the legal system. More strictly, it is the professional practice of psychology within or in consultation with, a legal system that embraces both civil and criminal law.
Now, in view of the fact that forensic psychology will make part and parcel of a legal system, it is important to identify how it fits within the legal framework. Of important concern as pertaining to the law, is the fundamental requirement of due process particularly in an adversarial judicial system. Due Process of Law is a fundamental, constitutional guarantee that all legal proceedings will be conducted fairly, granting equal opportunity for all parties to be heard, and that the law will not be unreasonable, arbitrary or capricious.
The Fifth and the Fourteenth Amendments of the US Constitution provides this important guarantee. Accordingly, all levels of government are prohibited from arbitrarily or unfairly depriving an individual of their basic constitutional rights to life, liberty, and property. The Fifth Amendment, as ratified in 1791 asserts that no person shall ‘be deprived of life, liberty, and property, without due process. In this regard, it is the federal government’s power that is limited, as the clause says nothing about the state. But the Fourteenth Amendment, ratified in 1868 on the other hand declares thus ‘nor shall any state deprive any person of life, liberty, or property, without due process of law. This clause thus remedies the lacuna left by the Fifth Amendment. In addition, the Supreme Court of US has gone further to give the Fourteenth Amendment an interpretation that protects the Bill of Rights, such that the latter’s protection has become binding on all states and the federal government.
The application of due process has traditionally seen it classified under two categories; Substantive Due Process, and Procedural due process. The latter is significant when one seeks to enforce the rights created by the former. But how does forensic psychology and mental health feature in all these? To better bring out the connection, the paper begins by restating the fundamentals of Procedural Due Process. In a nutshell this basically refers to procedures that apply from the time one is arrested, arraigned in court and how the trial is conducted. One of the fundamental assumptions that pertain to the trial process is the assumption that people are of sound mind, and the procedures as generally laid down would apply to persons of specific minimum age and adjudged sane. The process ultimately changes in a scenario where an accused or a party to a suit is declared unfit to stand trial for reasons of mental infamy.
Whereas the court hardly has the capacity to conclusively prove one’s sanity, it has the discretion to invite an expert to confirm such. In most jurisdictions the Procedural Due Process is to the effect that a person sufficiently proved to be mentally incapacitated may be involuntarily detained in a psychiatric institution for an indefinite period. Such circumstances undoubtedly violate their fundamental rights and the principle of liberty and by extension to requirements of due process as captured in the Fourteenth Amendment and as interpreted by the Supreme Court of the US. In O’Connor v Donaldson, the US Supreme Court ruled that it was unconstitutional for a State to confine a non-dangerous individual who is well able to survive safely in freedom on their own or with the assistance of willing and responsible friends of family members. In this regard, a finding of mental illness alone did not justify such a gross denial of one right to liberty. Ultimately such a confinement was narrowed to the danger posed by the individual due to their mental illness.
In light of the development of the constitutional doctrine of Parens Patriae states have subjected many people who are fairly able to exercise their responsibilities to pain. There have been cases where parents who display mental instability have their children unfairly taken from them ostensibly to protect the children. Whilst the paper is totally in agreement with this public policy initiative, as a matter of fact it has been used to bring many under the protection the government, its application ought to consider the limitation that an individual has as a result of the mental illness. So that a parent who demonstrates violent tendencies may be isolated or confined for the greater good of granting the rest of the public an opportunity to live in safety. In the same breath such individual may not give his or her defendants, particularly children, a standard of care that is ideal for their well-being.
The nexus found between Forensic Psychology and Due Process cannot be overemphasized. The law in its Substantive and Procedural Due Process will intersect with forensic psychology particularly where mental health is concerned. In a State’s application of Parens Patriae, due process of the law must be followed and in order to remain within the confines of what is lawful confinement of individuals who are mentally incapacitated, the landmark ruling in O’Connor v Donaldson should be considered. In doing so, proper forensic psychology must be conducted.
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