Let's see below the main themes of expertise in criminal law: the assessment of imputability and responsibility and the prediction of danger and violent behavior.
One of the most important topics in the expertise in criminal law It is that of imputability. In Spain, imputability has been defined as conscious voluntariness.
The responsibility is based on the imputability, which is the capacity of man to act guilty. Three degrees of liability assessment have been used:
- Imputable (guilty)
- Semi-imputable (liability mitigated)
- Unimputable (irresponsible)
Expertise in criminal law
A person is responsible for what he does and therefore can be declared imputable when acting maliciously. That is, he who knows what he does and wants to do it.
Knowing implies know, because you have intelligence and wanting implies Will, consistent characteristic of the typical freedom of man. Therefore, the intelligence and will are the two basic pieces for jurists Whether or not criminal liability exists.
The criminal law describes certain states in which it is presumed that one of these two capacities is missing, exempting criminal responsibility: mental alienation, transient mental disorder, perceptual alterations and minority. In this article we will see the first two.
Expertise in criminal law: mental alienation
Mental alienation is defined as the full disturbance of the intellectual or volitional faculties of a certain permanence or intensity. The term alienated It is established in the Criminal Code of 1932 and remains until the current penal code in which it is replaced by the anomaly or psychic alteration.
This is already a breakthrough because it is an illuminating term (prior to the 1932 code, terms such as crazy crazy fool).
The problem is to determine which mental disorders would be included and which not. The solution is to determine the psychological effect that the mental illness can produce in the subject's mind so that it can be considered as alienated.
The psychological effect must consist of the disturbance of the psychic faculties that prevent the subject from knowing the illicit behavior or guide your activity according to that knowledge.
The consequence that it is the psychological effect that determines the exemption is that you cannot establish lists of mental disorders based on which if the subject is diagnosed with one of them, it is considered a mental alienation.
Not doing so, the process is complicated. Usually, psychosis and the most serious forms of mental retardation have been included in the exemption when they produce the mentioned psychological effect (which occurs in most cases).
Psychopathies have been rejected as a disturbance of affectivity, of the character and not to influence the intellective or volitional abilities (the term of psychopathy has been replaced by that of antisocial personality as a category within personality disorders, DSM-IV).
Mental alienation, a complexity for the psychological expert
From what has been stated, the importance and complexity of psychological or psychiatric expertise is deduced. The task of the expert is:
- Examine the subject author of the criminal conduct
- Make the diagnosis of the mental illness to suffer, its intensity and duration.
- Determine the psychological effect that such disease has produced in the subject at the time of committing the crime
The judge is responsible for the information provided by the opinion declaring the responsibility or irresponsibility of the subject.
Transient mental disorder
It is another of the budgets contemplated in criminal legislation as exempt from criminal responsibility, as long as it has not been searched for a purpose to commit a crime.
It can be said that it is a temporary mental alienation that must occur at the time of the crime. The psychological effect is the same as in the case of alienation, the only difference is in the transience of said psychological effect. The intensity of the disturbance must be the same.
The term also appears in the CP of 1932 (it still remains in the current CP of 1995). As with the alienation term, Transient mental disorder is a legal term that is not contemplated in any of the classifications international on mental disorders, hence the imprecision of the term from a psychological point of view.
The only difference is that the duration of the disturbance should be short Without leaving sequels. If we take into account that the expert is claimed at a time that is far from the crime, we can assume that the symptoms of the disturbance have disappeared when the evaluation is made.
Therefore, you are asked to evaluate the status of that person at a time when you are in a totally different state. In practice therefore it is so difficult to scientifically demonstrate a transient mental disorder that his disappearance would not represent any inconvenience in judicial practice.
- Bernal, A. O. (2009).Fundamentals of legal psychology and criminal investigation. University of Salamanca editions.
- Clemente, M., & Martín, J. C. R. (1995).Legal guide of the psychologist. Basic Compendium of Legislation for the Legal Psychologist. Pyramid.
- Muñoz, J. M., Manzanero, A. L., Alcázar, M. Á., González, J. L., Pérez, M. L., & Yela, M. (2011). Legal Psychology in Spain: Conceptual delimitation, research and intervention fields and formative proposal within the Official Teaching.Yearbook of legal psychology, 21, 3-14.