Flying Blind: Mental Health Testing in Taiwan’s Courts

Dr. Yee-San Teoh (趙儀珊) remembers the moment very clearly.

Teoh, an assistant professor of psychology and law at National Taiwan University, was in the courtroom, responding to questions during cross-examination for a background evaluation she had provided to the court on a man who had been convicted of murder. The prosecutor diverted from questions about the evaluation and instead asked Teoh to comment on a legal question relating to the sentencing.

It was her first time appearing in court in Taiwan and she felt she could be heading towards “a trap.”

“I said, ‘I am not a legal professional, of course I can’t comment,” she says.

And it is not just prosecutors who have sought to push her beyond her professional ambit.

“I have had judges asking me, ‘Do you think he deserves the death penalty?’ I will just say, ‘I cannot comment on that.’”

Other psychological and psychiatric evaluators, however, go beyond the call of duty.

“Some evaluators actually state very clearly in their conclusion that this person has ‘full criminal responsibility’ or that ‘he should be sentenced to death,’” Teoh says. “It is a serious violation of our work; we are not supposed to make any comments on criminal responsibility, nor sentencing."

One of only a few qualified professionals in her field in Taiwan, Teoh is hired by the criminal courts to perform psychological evaluations on defendants who have found to be mentally sound, and to investigate a defendant's background for the purpose of judicial sentencing.

No rules, bad results

There is no standardized training or formal guidelines for psychiatric and psychological assessments and evaluations in Taiwan. Nor do judges have set guidelines for sentencing. These factors, coupled with a lack experts and people acting outside of their field expertise – “there are a lot of professors who do things they shouldn’t do” – means that different examiners will find entirely different results, and different judges will apply the findings in different ways.

The multitude of problems has judicial reform and human rights advocates worried.

Lin Hsin-yi (林欣怡) is executive director the Taiwan Alliance to End the Death Penalty (TAEDP). The association has been reviewing the psychiatric testing in all of Taiwan’s death penalty cases, and has uncovered at least 10 cases where someone who has been sentenced to death appears to have serious psychiatric or psychological problems that had not been adequately considered by the courts.

“We found more than we expected,” Lin says.

Lin says several of these cases involve men who have already been executed.

'Playing it by ear'

When taking her first case – a unique instance where the death penalty was open to debate between the prosecution and defense for a man convicted of two murders, 16 years apart – Teoh concedes she “had no clue” what the process should look like.

With no formal protocols to follow, no precedent nor any advice from the courts on what the international standards were, and “literally no one in Taiwan doing this kind of evaluation,” Teoh and the court had to work it out for themselves.

“We just ‘played it by ear’ really,” she says.

While the court initially wanted Teoh to essentially evaluate whether the man “deserved to die or not” and provide a legal opinion, she explained this was not something she could do as a psychologist.

Flying blind, she researched what experts in other countries did, though she notes that in the U.S. and the U.K., similar roles are usually done by licensed forensic psychologists and forensic psychiatrists, not academics.

Teoh’s report was based on a total about 24 hours of interviews with the defendant – the many hours she spent with the defendant, she says, has “shocked” international colleagues – as well as digging out school reports and talking to family members.

“I pretty much did a background examination on his entire life,” she says. “I had no idea what the standard was, what they expected of me; I did what I thought was necessary to help the judges decide their sentence.”

Her final conclusion – that the man was unlikely to kill again and would be able to return to society once he had completed a life sentence – was accepted by the judges and the death penalty was overturned.

But, she says, there is no guarantee as to how the courts will treat her reports.

“Some judges might be very interested in understanding a person’s developmental background, but another might not,” she says. “Another might think ‘it doesn’t matter if he was abused as a child, what matters is that he killed a person violently.’”

Another “peculiar” aspect of the Taiwanese courts, she says, is that judges prefer to have quantitative measures, such as the percentage chance of someone reoffending, even when they are not practical.

“I would have to say [to the court] the typical recidivist instruments do not apply to capital cases,” she says. “You have to come up with a thorough developmental check. Especially for someone who has killed 16 years apart, you have to explain why.”

Then there are more basic problems to deal with; some judges are still “unclear” of the differences between psychiatrists, clinical psychologists and academics, she says.

International advice

Dr. Richard Latham is a U.K.-based consultant forensic psychiatrist and an author of the first edition of the Oxford Handbook of Forensic Psychiatry.

Latham was in Taiwan earlier this month as part of a high-level international delegation discussing judicial reform and the death penalty – the group held meetings with President Tsai Ing-Wen (蔡英文) and Minister of Justice Chiu Tai-san (邱太三), as well as several of the country’s legal and academic institutions.

The role of the psychiatrist as an expert witness was one area that came up during his time in Taiwan.

Latham told The News Lens International that without a proper understanding of the role, there is a risk psychiatrists could get drawn into answering questions they should not or failing to assist the court because they do not understand what the court needs.

“For example, a psychiatrist might explain a psychiatric disorder and the way in which it influenced behavior. The psychiatrists should almost certainly avoid a direct comment on responsibility,” he says. “Similarly, a psychiatrist might comment on prognosis of a psychiatric disorder but should not declare that someone is beyond reform.”

While the distinctions may appear subtle, Latham says it is "important that they are understood.”

Ultimately, he says, the best way to address the difficulty of translation from psychiatry into law is mutual understanding.

“The legal system needs to understand how a psychiatrist can assist and what the limits of that assistance can be. The psychiatrist needs to understand the questions the law might need to answer and assist in a way that is within their professional expertise.”

Execution of innocent people

Amid the lack of consistency in both the testing of mental health issues and the court’s handling of the process, TAEDP believes the risk remains that people who should be ruled unfit to stand trial will continue to been found guilty and even executed.

Regardless of the standard of testing, Latham suggests these risks will exist as long as capital punishment is used.

“The inevitable execution of innocent people because of the fallibility of legal systems is accompanied by the inevitable execution of mentally disordered people because of fallibility of the psychiatric system," Latham says.

"No standard will ever reduce that risk to zero,” he says.

If there is to be a "zero tolerance approach" to the execution of mentally disordered people, he says, the only reliable way to achieve this would be to abolish the death penalty.

Latham also says that when it comes to psychiatric disorders – which are not diagnosed by using biological markers but rely on clinical skill, experience and subjective opinion – there is risk of disorders being missed or misdiagnosed.

“One of the other issues is that psychiatric disorders evolve gradually and so there can be difficulty in satisfying the legal requirement of a definitive answer about any disorder at a specific point in time. Schizophrenia does not suddenly appear overnight, it evolves, often over months to years.”

Hope in Tsai's judicial reform

Judicial reform is already key pillar of Taiwan’s new government’s policy platform. While the exact details of the reform program remain undecided, before the January election, Tsai outlined her vision for what the program should entail. Establishing citizens’ courts and a constitutional review mechanism, reviewing the criminal justice system and the judicial personnel appointments and reforming the prison system were among the “concrete positions” Tsai had taken as of late 2015. At the time she noted that “basic human rights and judicial independence” continued to go wanting in Taiwan’s courts.

President Tsai, a former lawyer and law academic herself, has – to some criticism – since decided to spearhead a new judicial reform committee. A major conference had been scheduled for this month, but has been delayed to the end of the year.

While many judicial reform activists in Taiwan have focused their campaigns on corruption in the courts. Other advocates, like TAEDP’s Lin, hope that the program, which should be clearer after the conference, will be updated to include a review of the death penalty, as well as consideration of a raft of other pressing problems, including the many issues with the psychiatric and psychological testing processes and the poor treatment of prisoners.

In the meantime, experts say that formal training for judges and the medical professionals involved in criminal cases would go a long way to providing a more consistent process. However, local advocates say that this will be difficult to implement unless there is a major funding increase from the central government. Latham says that while the British system is not perfect, the U.K. does have a well-established training program in forensic psychiatry, and a long history of discussion between medical and legal experts about the use of psychiatric expert evidence.

There are several cases currently before the courts in Taiwan, in which psychiatric testing will play a key role. That includes Wang Ching-yu (王景玉), 33, who has been charged with killing a four-year-old girl in Taipei in March. The girl was decapitated in front of her mother. Prosecutors have sought the death penalty.

▶ See also: "Subway Murderer’s Lawyer Believes More ‘Random Killings’ Likely"
▶ See also: "Fighting for the Innocent on Death Row in Taiwan"

First Editor: Olivia Yang
Second Editor: J. Michael Cole