Psychology as a discipline strives to scientifically study human mind and behavior. In its endeavor to unravel consistent patterns of behavior, or lack thereof, due to individual differences, this field has managed to create various sub-fields in the past century due to the enormity of its mission statement. Some of the most commonly known subfields of Psychology in Pakistan include, Child Psychology, Occupational Psychology, Clinical Psychology, and Educational Psychology.
The converging point of law and psychology is the subfield of Forensic Psychology, which has emerged in the past few decades as a separate field of specialization. An expert in this subfield is required to have an in-depth understanding of legal principles in criminal law, particularly those, that relate to expert witness testimony, and the defendant’s capacity to stand trial. Additionally, these mental health experts work in prison systems, and mental health hospitals, to carry out psychological assessments, and prepare treatment plans if necessary. They are also part of the multi-disciplinary panel of parole boards in prisons, for the purpose of evaluating the level of risk offenders pose to the community if they are released.
The most crucial part of any scientific discipline is its research literature, so forensic mental health experts, not only strive to improve the performance of existing models – by ‘standing on the shoulders of giants’- but also enables law enforcement personnel on-field to employ methods that have been supported by years of research. In 1987, a study published by Fisher et al, identified some key issues faced in police interviews, for instance: interruption, negative and non-neutral phrasing of questions, inappropriate language, lack of follow up on potential leads, overuse of leading questions, inappropriate sequence of questioning.
Forensic Psychologists through their experience, can provide training programs to Sindh Police in investigative interviewing techniques to mitigate bias and error. For example, the PEACE training; a mnemonic acronym to recall five stages of the interview process which on the surface includes: ‘Preparation and Planning’, ‘Engage and Explain’ ‘Account Probing and Challenge’ ‘Closure’ and ‘Evaluation’. Going one step deeper, Cognitive Interview (CI) method that aims to infuse memory theories in development of techniques in order to elicit a complete and accurate information from interviewee, comes under the third stage of the PEACE model.
Unlike a traditional police interview, which is based on subjective-observational learning via an older role model interviewer, PEACE training provides well-defined stage by stage standardized processes guiding the interviewer. Moreover, there is also a shift from the traditional emphasis on obtaining a confession in police interviews, and there is more focus in trying to take out as much factual information and accurate description in interviews as possible.
The assistance of Forensic Psychologists, can help the Ministry of Justice in securing higher rate of prosecution in criminal trials, by reducing the number of cases dismissed by the court due to coerced confession, faulty evidence, or unreliable eye-witness account.
Countries which have already uplifted forensic mental health experts in their judicial system, reap the benefits of insightful knowledge about the causes, and prevention of criminal behavior. Case in point, a forensic mental health expert will define an on-set category of criminal activity through the perpetrator’s age, then he/she will explore the risk factors perpetuating the criminal behavior, and finally, identifying protective factors leading to desistance, i.e. cessation of all criminal activity.
According to the National Institute of Justice in United States, children who start offending from the age of 12 are more likely to continue offending well into their adulthood, and about 40-60% of juvenile delinquents naturally desist by early adulthood. Moreover, most of the violence is directed at victims of the same age as the offender, while the age of 16-25 is considered high-risk for violent victimization.
The above illustration of empirical evidence can be used to inform government’s policy, to let’s say, divert youth offenders from the prison system, and placing them in vocational training programs to prevent them from turning into hardened criminals. Despite the existing research literature in forensic psychology, Pakistan needs its own panel of researchers, and evaluators in this field. It is still uncertain how many prisoners in Central Prison Karachi are suffering from a mental illness, how many prisoners are receiving mental health support, and how many prisoners have already been released without any proper psychological evaluation.
In the capacity of an expert witness, the court may call upon a Forensic Psychologist, to evaluate the testimony of an eye witness to the crime, or to assess both: the mental capacity of the offender to stand trial, and the mental state of the offender at the time of the crime. Pakistani law, does accommodate the use of expert opinion, with provisions expounding on the definition of an expert.
Article 59 of Qanun-e-Shahadat Order (1984), covers the use of expert opinion as evidence, and states it as:
“Opinion of experts: when the court has to form an opinion upon a point of foreign law, or of science, or art, or as an identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.”
The National Assembly revisited the definition of an expert in Section 3(f) of Investigation for Fair Trial Act (2013):
“Expert means a person qualified or trained or experienced in conducting surveillance or interception who is nominated by the applicant or the federal Government as an expert for analysis of the intercepted material”
The Provincial Assembly of Punjab took the broader definition of an expert opinion stipulated in Qanun-e-Shahadat Order (1984), and successfully created a subcategory of ‘forensic experts’. In the hope to further assist, the inclusion of such forms of evidence in criminal trails. Section 2(f) of the Punjab Forensic Science Agency Act (2007), defines an expert as:
“Expert includes a qualified foreign expert working in a forensic science facility and whose evidence is admissible in the country of his origin.”
In a recent judgement of the Federal Shariat Court of Pakistan (CA NO.23-I, 2019), the court reasserted the relevance of expert opinion within the judicial process, in both criminal and civil cases, by recognizing the modern rule governing the admissibility of scientific evidence aided by an expert witness. The court also encouraged prosecutors to engage experts as, “modern investigative tool and crime detection has led to the further development of scientific evidence and expert opinion”.
Despite the welcoming attitude of the court, coupled by the existing federal statutes facilitating the use of expert opinion, there is still lack of implementation on a provincial level by the Sindh Criminal Prosecution Services. The recommendation of passing a bill in provincial assembly of Sindh naturally follows from the need to subsume forensic mental health experts in law enforcement agencies, Sindh Prison Department, and Sindh Prosecution services. I will try to demonstrate the urgency of introducing reforms by highlighting two cases of mentally ill offenders within the criminal justice system of Pakistan.
Case study 1
Imdad Ali was sentenced to be hanged in 2002 after he murdered someone. His wife could not afford an expert witness to attest to his mental illness in the initial trail, and as a result it took 10 years to finally diagnose him with ‘paranoid schizophrenia’ in a medical report.
Case study 2
Kanizan Bibi was arrested as a juvenile for the murder of six people in 1989, and was consequently sentenced to death in 1991. After 26 years, the medical board of Punjab Institute of Mental Health (PIMH) found her to be suffering from Schizophrenia. She is still languishing in jail after 30 years.
In both these case studies, a forensic mental health expert would have assisted the police in the interview process to gather an accurate and complete version of the event. Then during the criminal proceedings, the expert would have evaluated the testimony of any eye witnesses, and then also would have guided the court regarding the mental capacity of the accused to stand trial – provided the insanity defense was invoked. It is pertinent to understand the two-part legal requirement of ‘mens rea’ (guilty mind) and ‘actus reus’ (guilty act) in a criminal trial.
Both of these elements have to be present at the time of the crime in order to obtain a clear cut conviction. But if a person claims to be insane, then they are essentially detaching their mental state from the act of crime, and then a logical question follows: is it justifiable to punish a person who didn’t intend to cause harm in the first place? Take it one step further, is it justifiable to punish a diagnosed mentally ill criminal?
In the words of the former Chief Justice of Pakistan Saqib Nisar, who after taking notice of this issue said in 2018, “Neither reason nor sensibility allow me to believe that we can execute a mentally ill or disabled person,” reemphasizing the commitment of international legal bodies to not hang mentally ill criminals.
One prime functional responsibility of the state, that outweighs any other, is to keep law abiding citizens safe from harm, and therefore inclusion of forensic mental health experts within the criminal justice system of Pakistan should be prioritized. If the proposed measures are taken seriously, then proper risk assessments will be conducted before releasing prisoners from jail, while newly released prisoners will be given mental health services in the form of individual counselling, and support groups.
Diversion policy will be carried out for youth offenders to curb the domino effect of future criminal behavior. Law enforcement agencies investigative capabilities will be enhanced through various training programs. Ultimately, these efforts are intended, to keep the public safe from violent criminals, to reduce the total number of the prison population, and to help the government save tax payers money.