Book Review

Retrospective Assessment of Mental States in Litigation: Predicting the Past

N Engl J Med 2002; 347:1291-1292October 17, 2002

Article

Retrospective Assessment of Mental States in Litigation: Predicting the Past
Edited by Robert I. Simon and Daniel W. Shuman. 471 pp. Washington, D.C., American Psychiatric Publishing, 2002. $69. ISBN: 1-58562-001-7

Retrospective Assessment of Mental States in Litigation: Predicting the Past, edited by Robert I. Simon and Daniel W. Shuman — a doctor–lawyer team — is an outstanding collection of essays on retrospective assessments of mental states in both civil and criminal contexts. As many of the contributors note, such retrospective assessments entail both philosophical and practical problems. Assessing a mental state, particularly a mental state in the past, is a task of daunting complexity. We cannot get inside another person's mind in the present, and attempting to do so retrospectively is another matter entirely. As this book demonstrates, there may be little contemporaneous evidence, with gaps in recollection and substantial opportunity for simulation or dissimulation.

The editors of Retrospective Assessment have enlisted experts in law, psychiatry, and psychology, and a number of chapters have been written by the leading authority in a field. In addition to addressing the expected topics — for example, criminal responsibility, psychological autopsy in possible cases of suicide, and retrospective assessment of children's mental states — the contributors have provided broader essays. There is, for example, a well-executed chapter on philosophical issues raised by retrospective assessments, which covers epistemological complexities, as well as a chapter on various research models for validating retrospective assessments. The editors frame the book with overview chapters that give shape and content to the central themes. The organization works well.

We have a few minor quarrels with the presentation. First, there is some repetition, inasmuch as virtually every author discusses the important topic of cases involving the admissibility of testimony from experts. It is useful to learn how these cases bear on specific issues, but since they are discussed in the introductory chapters, there is little need to repeat the discussion throughout the book.

Second, many of the chapters go well beyond the retrospective assessment of mental states. One chapter deals essentially with prediction, a task that may rely in small part on understanding a person's past mental states but that has many complexities and difficulties of its own. The chapter on children contains quite a bit about the suggestibility of children and is focused not so much on past mental states as on past acts, such as abuse by others. Similarly, the chapter on memory covers much more than the memory of past states. It is hard to be too critical here. This sort of book has an overriding theme, and in playing out the theme, the authors may take a broad view, which means that readers learn more. But a stickler for fidelity to the theme might be distracted by the excursions into other areas.

Third, we would have liked to see more chapters devoted to the central problem of retrospective assessment in various areas. For instance, there is a chapter on psychological autopsies in cases of suicide, but there is no chapter on the assessment of testamentary capacity (competency to make a valid will), even though such an assessment, which is a common issue in the courts, also involves someone who cannot be contemporaneously assessed. In addition, a chapter on contractual capacity (competency to make a valid contract) would have been useful. These are important types of retrospective assessment that warrant discussion in separate chapters.

Finally, one point that is briefly noted deserves more attention: retrospective assessments involve not only impairment due to mental illness but also mental states of all sorts. For instance, criminal law addresses not only the question of insanity or involuntariness (e.g., sleepwalking) during the commission of a crime but also the state of mind of a person who may have been quite healthy. Did the person “intend” to kill? Did he or she act with a “depraved heart”? The law makes certain presumptions about a person's mental state — for example, that a person intends the natural and probable consequences of his or her act. But these presumptions can be rebutted, and we need ways to assess normal, as well as impaired, states of mind in the past. This example occurs in many areas of the law, suggesting that the problem of retrospective assessment of mental states is perhaps even more formidable than this book suggests.

Retrospective Assessment of Mental States in Litigation is an excellent collection. It is both theoretical and practical and will be of great value to forensic examiners and lawyers. Each chapter is pitched at a level that will be helpful to the seasoned investigator and to the novice. Many chapters give concrete advice about how best to perform an evaluation of a particular type. The book deserves a wide audience.

Elyn R. Saks, J.D.
University of Southern California Law School, Los Angeles, CA 90089-0071
esaks@law.usc.edu

Stephen H. Behnke, J.D., Ph.D.
Harvard Medical School, Boston, MA 02115