Printer Friendly

Evaluation of discernment and criminal liability.


Psychiatry is a medical specialty devoted to the study and treatment of mental illness. Forensic psychiatry is a sub-specialty of legal medicine which offers medical criteria necessary to solve different cases provided by the legislation in force, through specific theoretical and practical instruments. Forensic psychiatric expertise has the role to offer, through the assessment of psychic capacity / discernment / psychic competence, medical criteria for determining responsibility / irresponsibility and adequate resolution of cases, by scientifically adhering to legal truth (1,2).

Objectives of forensic psychiatric expertise:

* To establish if the defendant has been suffering from a mental illness.

* To establish if there is a causal relation between the mental illness and the committd act.

* To establish if the defendant had discernment over his acts.

Discernment is both the primary purpose of forensic psychiatric expertise and the fundamental criterion according to which an offender's criminal responsibility can be evaluated and judged.

Discernment is the mental capacity of a person to realize the content and the consequences of the deed he is committing and to consciously manifest his personal will in relation to that deed (3,4). A person will only be criminally liable if he has the ability to discern (6,7). Discernment depends on the personality of the subject as well as on his / her state of consciousness at the time of the act. Criminal law does not define discernment and does not use this term except in determining the criminal responsibility of the offenders (8,9,10,11). Including guilt, intention and fault in defining the offense, places the concept of offense on the line of psychic process that precurses and accompanies the incriminated act. As a synthesis of psychic functions, discernment is a psychological and psychiatric conversion of the legal notion of responsibility. It represents both the main purpose of forensic psychiatric expertise and the fundamental criterion according to which one can assess and therefore judge the criminal responsibility of an offender (12,13, 14,15).

Since the court starts with the presumption of sanity until proven otherwise for every person who faces criminal trial, it can be considered that discernment is the real key of the criminal system, since the whole penal theory is based on it.

Criminal liability is conditional on preserving discernment at the time of committing the act. In turn, discernment is conditioned by both the intelligible character of the deed and the offender's state of consciousness at the time of committing the act (16). Consciousness is determined by:

* the level of consciousness structure (taking into account the three levels of the structure of consciousness: elementary, optional logical and axiological);

* level of personality structure (level of intelligence plus psychopathological destruction steps).

Discernment is not automatically deduced by specifying the psychiatric entity and depends on the stage of the disease (17). Discernment results from the following premises: the character of the deed, the personality structure, the underlying mental illness, the level of consciousness, the stage of the disease (18, 19, 20).

Forensic psychiatric expertise is not limited to establishing a diagnosis, complex or not, that concludes a psychopathological phenomenon with forensic consequences. In the infinite sphere of deviant behaviors, the expert is called upon to bring scientific arguments of a psycho-medical nature that provide justice a dynamic interpretation of a causal complex process and establish the link by means of reconstructing the cause, starting from analyzing the effect. The urgent necessity of transposing the determinism of biopsychological and medical phenomena on a legal social ground thus becomes one of the forensic expertise goals (21, 22, 23).


Psychiatric Hospital, patients, medical staff and hospital staff. A lot of peace. Everyone is waiting and there are three bloody women in front of them. Moments passed slowly and so were the chances of survival of the three women. In the courtyard of the hospital was the author of the crime. Did he realize in those moments what he did? No one knows. One of the hospital employees called the police. Quietness and silence were shattered when the ambulance arrived. And again they waited, now expecting the verdict of the doctors. Suddenly, they heard "two out of three women are dead". The ambulance left with the victim who still breathed to an emergency hospital to be given the necessary medical care. Waiting again. About 30 minutes later, the police arrived. The defendant was detained. The two corpses were transported to the morgue and the investigation began. Four years before the act, the defendant murdered his wife and son by applying several blows with an ax. The defendant believes that these facts could have been motivated by the consumption of alcohol and that without his knowledge the wife had signed "some papers" without knowing their contents at the request of police officers, and also that his wife would have asked one of his sons to hit him.

Back then, the forensic psychiatric expertise concluded that the aforementioned committed the indictment on the grounds of an alcohol-related paranoid psychosis and admitted the defendant to a psychiatric hospital unit. While in the hospital, the defendant was continually integrated into occupational therapies, working with conscientiousness and responsibility in the hospital's mechanical workshop. Also, medical staff asked for his help in other activities, thus demonstrating initiative, fairness, seriousness and skill to avoid conflicts with other patients. Two years after admission, the defendant met a female in the hospital who was also hospitalized with the diagnosis of "hyperthymic psychosyndromes with dissociative elements to a discordant personality". Shortly after they met, the two were transferred to the ergotherapy department. Through his behavior, the defendant gained trust and respect from the employees, considering him as part of their working team.

At the request of the two, the hospital management gave them a room at the hospital's basement, where they lived together. Although different structures, the personalities of the two were naturally complementary. For the defendant, his balance point was the existence of a family concept.

Six months later, the female decided to leave the defendant and the hospital and go live with her parents. The defendant disagreed with her decision, asshe represented his equilibrium and his peace of mind. The victim was afraid to tell him that she wanted to leave the hospital for good and told him she was leaving for a week to visit her relatives. The victim decided to leave in an autumn evening, but a few days earlier she had packed her baggage and sold some of her belongings without the defendant's knowledge. That day they awoke very early in the morning, and she remained in the room while the defendant went to the kitchen asking for bread and some food for the victim to have on the train. After an hour, the defendant returned to the room and saw the drawer's doors wide open and the lack of clothes that belonged to his concubine. He realized his concubine was leaving him and decided to kill her.

The defendant took a knife with a blade about 14 cm long from the floor, then secured the door. The victim started shouting and asking for help. At that moment the defendant grabbed her hand and stabbed her twice. A nurse heard the noise and went to the crime scene. She knocked at the door with the intention of intervening in the victim's help. The stabbed victim stood up and ran to the door managing to open it and went out to the hallway. The defendant chased her into the hallway, but ran into the nurse and stabbed her four times in the back, she managed to get to her room but died immediately. The other victim fell down the hall and died. The defendant, realising what had happened, attempted to commit suicide by applying a few knife strokes in his thorax and abdomen areas, but the wounds were superficial. Immediately, at the basement of the building arrived a caregiver who shouted to the defendant "What have you done?". The defendant replied, "There is only you and two more left." The defendant headed towards the caregiver, but eventually handed over the knife, so the caregiver told him to go see the doctor on call in order to receive medical care. The defendant came out of the basement and headed for the medical cabinet, but recalled that the cook had helped his concubine to leave the hospital so he headed for the kitchen to kill her. In front of the kitchen door, he armed himself with a stone, walked into the kitchen taking her by surprise and hit her in the head with the stone. He trying hitting her again, but she ducked. Seeing he fails to hit her, he strucked her foot, so the victim fell. The defendant wanted to hit her with a knife, but he could not, so he hit again with the stone in her thorax area. After that, he left the kitchen and went in the courtyard where, after 30 minutes, he was found and detained by the police, the third victim and the defendant being transported to the hospital, where they were admitted and given medical care. From the defendant's statement: "The victim was not satisfied with the room that hospital management gave us, lashed out about the fact that I had no way to soften up the hospital management, and that's why we argued repeatedly. She was asking for money all the time. Lately, our relationship had deteriorated. I loved her, but she used to leave for one or two days, I suspected she was dating another man because I knew she was consulting dating agencies. Thus, hatred was born between me and the victim. I was jealous and in the last few months she was doing everything she could to bother me, to laugh at me. When she decided to go to her parents, I asked her to stay with me. The night before the murder, I did not sleep. When the victim got up, we talked, but I can not remember what, then she asked me to bring her food for the road from the kitchen. I agreed and when I returned to the room, the victim began to yell at me and to address me bad words, that I was stupid and fool, that I do not know how to get by. Under these circumstances, I got upset and decided to kill her then commit suicide ... I want to say that I'm sorry for what I did."

The necropsies of the two deceased victims were carried out:

The forensic autopsy of the 33-year-old concubine, with a 166 cm waist and constitutional obesity, revealed the following signs of violence on the external examination: on the head, in the right parietal region, a vertically oriented straight wound with finely irregular, dehiscent edges, affecting the skin and subcutaneous tissue, 1.7 cm long; on half of the upper right lip, a 1.2 / 0.3 cm discontinuous scratch, centered on a 2/2 cm red ecchymotic area; on her left hemithorax, the posterior axillary line, in the middle third, an anteriorposterior straight wound with clean cut edges, sharp angles, dehiscence of 2.5 cm in length, and at 6 cm below the inferior angle of the scapula, another straight wound, vertical, clean cut edges, sharp angles, dehiscent, 2.5 cm long, and on her precordial area there was a 1 / 0.2 cm linear scratch. The internal examination revealed the following: around the soft epicranian tissues, on the internal side, there were two hemorrhagic infiltrations, one of 7,5 cm medio-frontal and one of 6 / 4,5 cm right frontal-parietal. While exploring the two wounds of the left hemithorax by taking the anatomical layers one by one, it was discovered a 15.5 cm long canal of the wound on the posterior axillary line, that passes through the subcutaneous cellular tissue from the fifth intercostal space to the soft intercostal tissues of the sixth intercostal space for 3.5 cm, then goes to the left side of the sixth chondrocostal junction to the costal arch axis, the anterior inferior extremity of the upper left pulmonary lobe, the anterior pericardium and the left ventricle wall at approximately 3 cm from the apex, the canal orientation going from posterior to anterior, from left to right, top to bottom. The other canal, from the left subscapular wound, measures 12 cm length and goes across the ninth intercostal space at around 7 cm from the spine and the posterior side of the left inferior pulmonary lobe, having a slightly oblique direction, going from posterior to anterior and top to bottom. Around the wounds and the canal, there are hemorrhagic infiltrations, lost pleural integrity near the wounds areas, left pleural space with 700 ml of blood and air, left lung slightly colabated, of pale pink color on section, presenting two wounds that correspond to the wounds mentioned above, the first one is located on the posterior area o the inferior lobe and the other one is on the superior lobe. The pericardum presents a 1 cm length wound on its left anterior lateral side surrounded by a hematoma. The pericardial cavity is filled with 150 ml of blood; the myocardium exhibits a 0.8 cm long wound in the left margin, vertically oriented with subepicardial hemorrhagic infiltration; pale, anemic organs. Blood was collected from the victim's body to determine the alcoholemy and blood type. The forensic autopsy of the 28-year-old nurse, with a 163 cm waist and a normosthenic constitution, revealed the following signs of violence on the external examination: on the posterior side of her thorax, around the left scapular area and around both interscapulovertebral regions, there were four rectilinear wounds, with clean-cut edges, sharp angles, with dehiscence, the first one was 2,5cm long, in the right scapular region, around the supraspinous segment, the second one was 2,8 cm long, in the middle segment of the same region, the third one was 2,3 cm long in the distal segment of the right interscapulovertebral region and the fourth one was 2,5 cm long in the opposite interscapulovertebral region, all the wounds being oriented slightly oblique, top to bottom, right to left; in the right lateral cervical region it was exposed another vertical rectilinear wound, 0,9 cm long, with clean-cut edges and sharp angles, affecting the skin and part of the subcutaneous tissue, with dehiscence. The internal examination revealed the following: by dissecting the anatomical layers, there was a 12 cm long canal, corresponding to the 2,3 cm wound, that went through the eight right rib to the posterior side of the right lower lobe of lung, slightly oblique oriented, from left to right, posterior to anterior, top to bottom, and a 14,5 cm long canal, corresponding to the 2,5 cm wound, that went vertically through the left seventh intercostal space at about 6,5 cm from the spine, the posterior side of the lower lobe of lung to the anterior medial side, piercing the left posterior superior pericardial sinus; the other right scapular wounds have a short 2,5-4 cm long canale that ends near the scapula; all the canals have hemorrhagic infiltrations, lost pleural integrity near the wounds areas, left pleural space with 800 ml of blood and air and right one with 450 ml of blood and air; both lungs are small, colabated, of pale, dry aspect, slightly increased consistency; decreased breath sounds; the right lung presents a 1,7 cm long wound and a 7 cm long canal on its lower lobe, at the point where the middle third meets the lower third; the left lung presents a similar wound and also a canal that crosses the entire width of the lobe and ends with a 0,5 cm wound at the left pesterior superior pericardial sinus. The pericardum presents a 1cm length wound on its left anterior lateral side surrounded by a hematoma. The pericardial cavity is filled with 70 ml of blood; pale, anemic organs. Blood was collected from the victim's body to determine the alcoholemy and blood type. A forensic examination was performed regarding the cook and revealed multiple scars, that required 40-45 days of medical care. During the criminal prosecution of the defendant, two psychiatric forensic examinations were carried out, according to which he presented dysthymic syndrome with psychopatization of personality with cyclothymic aspects, instability and impulsivity. At the first forensic expertise the knowledge functions were within normal limits with good allo and autopsychic orientation. He had a calm attitude, a low tone of voice, and a coherent story with well-chosen words about how he had killed his concubine and the nurse. The psychological examination revealed a QI of about 95, the failure to realize the significance of his existential impact, self-confrontation, uncontrollable imperative reactions, incongruent elements of graphical ideation, a dissonant configuration in a poorly censored outline. EEG test within normal limits.

The second psychiatric forensic examination was conducted because there were contradictions about the forensic expertise from four years ago when he murdered his wife and one of his children, when it was established that the deeds were committed without discernment.

1. The death of the concubine was violent, due to two left thoracic penetrating wounds, puncturing the lung and heart, left hemopneumothorax and hemopericard. The two tanatogenerating wounds were produced by striking with a sharp and pointed object of about 2.5 cm wide, which penetrated into the body of the victim for 15.5 cm and 12 cm, the direction of penetration being from behind and from the left posterior side of the victim. The victim also had a wound on her head skin and a scratch on the upper lip produced by receiving a hit with blunt object, which would have required 7-9 days of medical care and on the precordial region a fine scratch that could have beem produced with a sharp and pointed instrument, not requiring medical care. At the time of death, the victim's blood did not contain ethyl alcohol. The death of the nurse was violent; it was due to the two posterior thoracic wounds with bilateral hemotorax and hemopericard, the victim also presenting two other non-penetrating posterior thoracic wounds and a superficial cervical wound. All the injuries were produced by striking a sharp and pointed instrument about 2.5 cm wide and 14 cm long, the penetration direction being from behind the victim. At the time of death, the victim's blood did not contain ethyl alcohol.

2. The acts for which the defendant was investigated have been committed with discernment.

3. The prosecution of the defendant for the offense of "first degree murder" was ordered.


The authors state that they are no declared conflicts of interest regarding this paper


(1.) American Academy of Psychiatry and the Law (2005), Ethics Guidelines for the Practice of Forensic Psychiatry.

(2.) Belis V, Medicina legala in practica judiciara, Ed. Orizonturi Lider, Bucuresti, 2002.

(3.) Predescu V, Terbancea M, Romila A, Vianu I, Dragomirescu V. Toward a theory of discernment in psychiatric medico-legal expertise. Rev Med Interna Neurol Psihiatr Neurochir Dermatovenerol Neurol Psihiatr Neurochir. 1975 Jul-Sep; 20(3):1618.

(4.) Popa V, Costea G, Mihai D. Method of evaluating the discernment capacity according to the symptomatology. Acta Med Leg Soc (Liege). 1988; 38(2):233-41.

(5.) Popa V, Costea G. Discernment and dynamics of clinical configuration in current psychopathology. Acta Med Leg Soc (Liege). 1986; 36(2):286-8.

(6.) Berkowitz L. Frustration-aggression hypothesis: examination and reformulation. Psychol Bull. 1989 Jul; 106(1):59-73.

(7.) Dembek ZF, Kortepeter MG, Pavlin JA. Discernment between deliberate and natural infectious disease outbreaks. Epidemiol Infect. 2007 Apr; 135(3):353-71. Epub 2006 Aug 8.

(8.) Gutheil, T. G., & Appelbaum, P. S. (2000). Clinical handbook of psychiatry and the law (3rd ed.). Philadelphia, PA, US: Lippincott Williams & Wilkins Publishers.

(9.) Benezech M, Classification des homicides volontaires et psychiatrie, Annale medico-psychologique, vol. 154, nr. 3, martie 199, p. 161-173.

(10.) Anno B. J. (2003), Standards for the delivery of mental health services in a correctional setting, in Richard Rosner (ed.), Principles & Practice of Forensic Psychiatry, 2nd ed., Arnold, UK, 484-48.

(11.) Popa V, Costea G, Radu A, Jipescu A. Prolegomena on discernment in deviant behavior related to consumption of alcoholic beverages. Acta Med Leg Soc (Liege). 1986; 36(2):283-5.

(12.) Saber DL, Mauro D, Sirivedhin T. Applications of forensic chemistry to environmental work. J Ind Microbiol Biotechnol. 2005 Dec; 32(11-12):665-8. Epub 2005 Oct 12.

(13.) Dragomirescu VT. Functional qualitative parameters of discernment. Acta Med Leg Soc (Liege). 1986; 36(2):208-13.

(14.) John A.M. Gall, J. Jason Payne-James editors(s). Current Practice in Forensic Medicine. First published:19 August 2016, ISBN:9781118455982.

(15.) Gutheil TG, Hilliard JT. The treating psychiatrist thrust into the role of expert witness. Psychiatr Serv. 2001 Nov; 52(11):1526-7.

(16.) Blaauw E, Hoeve M, Marle H, Lorraine Sheridan, Mentally disoredered offenders. International perspectives on assessment and treatment, Ed. Elsevier, 2002.

(17.) Katz S. Assessing self-maintenance: activities of daily living, mobility, and instrumental activities of daily living. J Am Geriatr Soc. 1983 Dec; 31(12):721-7.

(18.) Bluglass R, Bowden P, Wilker N, Principles and practice of forensic psychiatry, Edinburg, Churchill Livingstone, 1990.

(19.) Butoi T, Butoi IT, Tratat universitar de psihologie judiciara, Ed. Phobos, Bucuresti, 2003.

(20.) Calcedo-Barba, Alfredo, Gil-Gregorio Pedro, Castelli-Candia Paola, Legal aspects in Dementia, Curr Opin Psychiatry, 2002, 15(6).

(21.) Protais C. Psychiatric care or social defense? The origins of a controversy over the responsibility of the mentally ill in French forensic psychiatry. Int J Law Psychiatry. 2014 Jan-Feb; 37(1):17-24. doi: 10.1016/j.ijlp.2013.10.001. Epub 2013 Oct 31.

(22.) de Lentaigne de Logiviere X, Gignon M, Amsallem C, Jarde O, Manaouil C. Forensic aspect of acute drunkenness. Presse Med. 2015 Jun; 44(6 Pt 1):610-7. doi: 10.1016/j.lpm.2014.09.023. Epub 2015 Feb 14.

(23.) Beauchamp TL, Childress JF, Moral characters, in Principles of biomedical ethics, 26-56, Oxford University Press, 2001.

Tatiana Iov, Anton Knieling, Romeo P. Dobrin, Diana Bulgaru Iliescu

Tatiana Iov -MD, PhD, senior forensic medicine, Institute of Legal Medicine, Iasi, Romania

Anton Knieling--MD, PhD, senior forensic medicine, lecturer, Gr.T.Popa University of Medicine and Pharmacy Iasi, Romania

Romeo P. Dobrin--MD, PhD, senior psychiatrist, lecturer, Gr.T.Popa University of Medicine and Pharmacy Iasi, Romania Diana Bulgaru Iliescu--MD, PhD, senior forensic medicine, professor, Gr.T.Popa University of Medicine and Pharmacy Iasi, Romania


Romeo P. Dobrin, MD, PhD, senior psychiatrist, lecturer, Gr.T.Popa University of Medicine and Pharmacy Iasi, Romania,

Submission: 04 apr 2018

Acceptance: 30 may 2018
COPYRIGHT 2018 Institute of Psychiatry Socola, Iasi
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2018 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Iov, Tatiana; Knieling, Anton; Dobrin, Romeo P.; Iliescu, Diana Bulgaru
Publication:Bulletin of Integrative Psychiatry
Article Type:Report
Date:Jun 1, 2018
Previous Article:Moral and ethical features regarding integrating religion and spirituality in psychotherapy.
Next Article:Integrative dimensions of primary medical care.

Terms of use | Privacy policy | Copyright © 2020 Farlex, Inc. | Feedback | For webmasters