Mental Disability and Testimony Provision - Coursework Example

Mental Disability and Testimony provision Name Institution Course Tutor Date Introduction In many cases, when mental ill persons and their families are confronted with the criminal justice system in many parts of the world. Such moments are invariably challenging and emotional. Interaction with the criminal justice system is a difficult experience even for persons without mental disorder, thus the intimidation and pressure that comes from the criminal process is usually devastating fro people with mental disorders as well as their families (National Alliance on Mental Illness, 2010). Despite the fact that most offenses charged against mentally challenged people are not violent based, people with mental disabilities are often represented in jails and prisons. However, in many cases, mentally disabled persons fail to or present wrong testimony to court proceedings. This has often led to unfair judgments from the trial chambers (Ministry of Justice, 2011). This paper is designed to examine how mental disability hinders the provision of testimony in court. It begins by giving an overview of mental disorder followed by the impacts it has on testimony provision by the mentally challenged witness. Thereafter, the paper discuses decision made by the prosecutor concerning credibility and reliability of evidence given by persons with mental disorder and finally provides conclusive remarks about eth whole discussion. Mental disorder According to the Ministry of Justice (2011) mentally ill persons are part of vulnerable adult witnesses. The legal definition of mental disorder as stated in Section 1(2) of the Mental Health Act 1983 and the amended Mental Health Act 2007 is any kind of disability or disorder in the mind of a person. The category of mental disorder according to the Ministry is the most difficult to recognize for support through Special Measures due to the unstable nature of mental complications. People with mental disability may require special assistance during the time or crisis like when providing testimony court. Issues of Mental Health are common in present life and many people experience them at given time in their normal living. Mental Health issues comprise of various health conditions that ranges from depression, panic attacks, phobias, anxiety, obsessive-compulsive complication, personality disorders, schizophrenia and bipolar disorder among others (Mind, 2007). This context of mental disorder include individual who have been diagnosed with mental health problems and are accessed to or not accessed to mental health services. Also, individual may not have been clinically diagnosed but require mental health assistance (Crown Prosecution Service, 2010). It is also important to understand the concept of learning disability, which is related to mental disorder. According to the World Health organization, learning disability is a condition of incomplete development of mind of an individual. Any person with a history of learning disability displays greater impairment of social and intellectual functioning. A learning disability is categorized as mild, moderate and severe and it often affects how a person learns and communicates (Crown Prosecution Service, 2010). It hinders an individual from understanding technical information, learn new skills and live independently. Thus, learning disabilities have long term effects on both social and educational development of people with such complication, and can often lead to reduction in functional skills. All these issues may affect the provision of testimony in court hearings. Impact of Mental distress According to Mind (2010) the main function of a witness can be summarized into five categories; recall, expression, cognition, interpretation of personal actions and those of others, and concentration. A person who has gone through mental health conditions identified above may definitely affect one of these functions of witness. However, it may not be appropriate to generalize this fact as it depends on the prevailing circumstances of the case. The ability of a person with mental disability to produce best testimony depends to a large extent on the severity of his or her symptoms of the mental health complication, and the side-effects when the incident occurs, subsequent interviews and eventually trial (Crown Prosecution Service, 2010). The impact of mental distress is not static and may fluctuate in severity on particular time or day, and can be neutralized in several cases. It is thus important to develop proper awareness of the possible impacts of mental distress to be able to identify the support needs and ensure access to justice by mentally disabled persons (Mind, 2010). People should not be denied their right to involve in the process of criminal justice as witnesses due lack of adequate support for mentally disabled. There are important considerations related to how mental disability experiences impact the testimony given by every individual. First, it is necessary to determine when the experiences took place. Second, if the experiences comes and disappears, them the triggers, exacerbates, and relieves should be identified. The last and the most important consideration is to identify at any given time the impact of the experience on the mental disabled witness’s ability to concentrate, think, express, recall or even interact with other people (Mind, 2010). Mental disability affects the ability on a person to give testimony in the following ways: Memory Collapse In many cases, people with mental disorder experience difficulties in remembering things due to depression. Some types of medication can also affect the memory of a witness. The memory of mentally impaired people may worsen when exposed on much pressure or anxiety, and this makes them give inconsistent testimony. However, the issue of recalling details and reliability of an account comes to play (National Policing Improvement Agency, 2010). The two issues must be clearly differentiated to determine the extent of impact. For instance, a mental disabled person may not accurately remember the precise dates and times when the incident occurred, but this does not make account questionable. Therefore, memory collapse may only affect the level of required detail and not the entire credibility or reliability of the testimony provided by the witness. Interpretation of situations A witness is able to interpret events by putting experiences into a wider perspective to be understood by the court. A person experiencing disorder of thought, delusions or paranoia may not be in position to interpret events since he or she will be exposed to a reality that is not the same as that experienced by other people (Time to Change, 2008). Furthermore, symptoms like agitation, racing thoughts and low motivation that are associated with mental disorders may also affect the ability for the witness to interpret events. However, inability to interpret events will often vary in severity and can fluctuate over time, therefore should be judged based on the circumstances. Ability to communicate Several symptoms mentioned above can affect mentally impaired witness’s ability to communicate, especially in public. A person with low self-esteem is likely to fear speaking in public, and this could also be caused by certain medications that make speech slurred. In such cases, lawyers and judges should be made aware so that they can make necessary adjustments to give such people special support. For instance, a witness suffering from cerebral palsy needs to be given special considerations when presenting his or her testimony. Thus, it is the obligation of the judges and lawyers to modify their style and tone of talking to the witness like speaking slowly and avoiding language that seems to be bully. Sometimes, adverse symptoms like obsessive thoughts make it hard for the witness to follow the conversation about the case and this hinders communication and the quality of testimony presented by the witness (Mind, 2010). Concentration and attention People with mental health problems are often associated with difficulties in concentration capacity. However, it should be understood that difficulties to concentrate is different from being unable to concentrate even though both affect the provision of testimony. Also, it is not obvious that when a witness has difficulties to concentrate he or she is precluded from giving testimony. Mentally disturbed persons who are experiencing hallucinations find it difficult to concentrate in other issues presented in court beyond these experiences (Mind, 2010). Feelings of despair also prevent such witnesses from paying maximum attention to issues, and these compromise the quality of testimony. Interaction with other people According to Mind (2007) one of the most important elements in witness presentation is the ability to effectively interact with criminal justice professionals to facilitate court proceedings. However, the ability of mentally challenged people to interact with others is normally affected by various symptoms. Often, people who find it hard to interact with others are diagnosed with personality disorders. Unlike people who are mentally fit, mentally ill people who feel threatened, have low self-esteem and hear voices from their personal experiences may not be able to interact with other people (Time to Change, 2008). People having mental disorder may develop fears about turf experiences they had in the past with the authority, and this can greatly affect their interaction with the criminal justice professionals. Reaction to questioning and cross-examination Response to questioning and cross-examination may be a hard task for people with symptoms of mental disorder. When the feelings of low self-esteem and anxiety are exacerbated, it may make the witness agitated and fail to respond to questions asked by the judges and lawyers. Too much anxiety demonstrated by the witness can as well make him or her become eager to please and come out of the experience very first, thereby giving quick responses which according to them are appropriate to the interviewer (Criminal Justice System, 2007). Therefore, it is difficult for people with mental disorder to remain focused and give appropriate response to the interviewer if they are encountering the positive symptoms of psychosis and schizophrenia like hearing voices. Such experiences like intrusive thoughts, thought disorder or paranoia can also affect the clarity and tone of responses from a witness (Mind, 2010). Decisions about credibility and reliability The prosecutor is required to consider concerns over credibility, accuracy or reliability of the provided testimony by the witness as a continuation of Evidential Stage of the Full Code Test. It is a requirement under law not to make assumptions concerning the assessment of the credibility and reliability of the witness. Nevertheless, whenever a witness is considered to have mental disorder, what normally comes to mind is to look for evidence on how the particular mental health complication affects people, to shape prosecution decisions (Walsh et al, 2003). This is a generalized condition-based approach that holds an assumption that mental disorder will for ever affect in a particular way the credibility and reliability of presented testimony by the witness. This kind of approach is not appropriate and is often misleading given the fact that mental distress is individual, fluctuating and irrelevant such that symptoms of mental distress may vary or completely have no effect on credibility or reliability (Crown Prosecution Services, 2010). In a case that had a hearing in 2009, there was an eyewitness to a particular offence of witness intimidation who had been diagnosed with schizophrenia. The Crown had requested for especial measures and upon doing that, had indicated the witness symptoms like hallucinations. In questioning the witness, the defence line raised the issue of the witness’s mental health condition that was not specific to the incident in question, but instead took a general proposition to disregard his reliability (Mind, 2010, p.16). In respond to this, the prosecutor said: “While giving his evidence the defence encouraged him to agree that he often saw images which were not real. As far as the court was concerned, he could not be treated as a reliable witness but in reality his condition had been used to exploit his evidence.”(Mind, 2010, p.16). Decisions concerning evidential test must not be taken only due to existence of mental disorder or a certain condition as indicated in the case above. In situations where particular evidence of character detracts from the witness’s account about the case, the decisions made by the prosecution should be considered as though the witness did not have mental disorder, and at the same time considering whether the witness would be supported to give his or her best evidence. It should always be remembered that conclusions concerning the effect of a mentally distressed witness on giving the right testimony should always be based on case-by-case at the right material time (Ministry of Justice, 2010). Conclusion Conclusively, people with mental disorders like panic attacks, phobias, anxiety, obsessive-compulsive complication, personality disorders, schizophrenia and bipolar disorder may not provide the right testimony in court especially when not accorded the necessary support. As indicated above, mentally distressed witnesses hinder the provision of testimony through memory collapse, difficulties in interpreting events, inability to communicate, lack of concentration and attention, poor interaction with other people and inability or failure to react to questioning and cross-examination by the interviewer. The paper also emphasized the need by the prosecutor to differentiate whether the testimony given by the witness with mental disorder is accurate, reliable of credible. All in all, the decisions made by the prosecutor are considered binding. References Criminal Justice System (2007) “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses and Using Special Measures. Crown Prosecution Services (2010) “Victims and witnesses who have mental health issues and/or learning disabilities: Prosecution Guidance”. Mind (2007) “Another assault: Mind’s campaign foe equal access to justice for people with mental health problems”. Mind (2010) “Achieving justice for victims and witnesses with mental distress: A mental health toolkit for prosecutors and advocates. Ministry of Justice (2010) “Criminal Procedure Rules: Guidance for Court Users, Staff and Practitioners. Ministry of Justice (2011) “Achieving Best Evidence in Criminal Proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures. National Alliance on Mental Illness (2010) “A Guide to Mental Illness and the Criminal Justice System: A system Guide for Families and Consumers. National Policing Improvement Agency (2010) “Guidance on Responding to People with Mental Ill Health or Learning Disabilities”. Time to Change (2008) “Stigma Shout: Service users and carer experiences of stigma and discrimination. Mind and Rethink. Walsh E et al (2003) “Prevalence of violent victimization severe mental illness”, British Journal of Ppsychiatry, (183), pp.233-238 Read More