WHAT IT IS, WHAT IT ISN'T, AND ITS

NEWEST ROLE IN THE COURTROOM

P T S D a n d t h e L a w :

WHAT IS PTSD? The term "PTSD" (Post-Traumatic

Stress Disorder) was introduced

into psychological discourse in

the post-Vietnam era. The

diagnosis of PTSD was created to

describe the variety of damaging

psychological effects seen in

soldiers due to their long-term

and continued exposure to

trauma during the war. In the

decades since the diagnosis'

introduction, it has become a

part of the common lexicon.

UNDERSTANDING PTSD

The most common understanding of PTSD is that it causes

sufferers of a traumatic experience or experiences to constantly re-

remember and re-experience the fear of harm or death that they

felt during the inciting incident(s).

PTSD is most commonly associated with the trauma experienced

by soldiers deployed in armed conflict. According to current

estimates by the National Center for PTSD:

• 11% of veterans of the conflict in Afghanistan, and

• 20% of veterans of the Iraq War suffer from PTSD

PTSD IN

LEGAL DEFENSE

In the legal world, PTSD most often comes

up as part of a defense against criminal

charges. It is most commonly used as part

of one of the following defense strategies:

• Insanity

• Diminished capacity

• A mitigating factor during sentencing

That said, PTSD is not only legally relevant

in criminal cases. It will sometimes also be

brought up as a mitigating factor in civil

cases such as mass tort claims, or in family

court cases such as child custody disputes.

EXPERT WITNESSES AND PTSD Research has consistently shown that if a psychiatric expert witness is

able to show that a defendant has suffered from past trauma and

subsequently establish a diagnosis of PTSD, that diagnosis can make a

significant difference in the outcome of the trial. This is especially true

in the case of veterans suffering from PTSD. Time and time again,

studies have shown that juries are more lenient on veterans whom they

believe to be suffering from PTSD, and that soldiers convicted of a

crime are likely to receive a lighter sentence.

HOW PTSD

DOES NOT

WORK AS

PART OF A

LEGAL

DEFENSE

In order for a diagnosis of PTSD to have a

beneficial effect on a legal defense strategy, it

is best if the defense team can logically

connect the PTSD diagnosis and its effects

with the alleged criminal act. Additionally,

juries and courtrooms are not sympathetic to

claims of PTSD caused by the commission of

criminal acts or the inflicting of trauma.

An example of PTSD backfiring as

part of a defense strategy is the Jodi

Arias murder trial, during which the

jury rejected the defendant's claims

that committing the murder she was

charged with had caused her to suffer

from PTSD. In order to be an effective

part of a defense, the defendant must

be shown to suffer from PTSD

because of trauma inflicted on them,

not as a side effect of trauma that they

themselves have inflicted.

THE CHANGING DEFINITION OF PTSD

While the broad definition of PTSD has remained consistent since the

1970s, the American Psychiatric Association (APA) has made some

changes to the exact guidelines on how the disorder is diagnosed. The

most recent change came in 2013, when the APA published the latest

edition of their Diagnostic and Statistical Manual of Mental Disorders

(also know as the DSM-5).

The criteria for diagnosing PTSD in this newest edition differ from the

previous ones found in DSM-4, and have generated some controversy

among academics, psychologists, and prosecutors.

PTSD AS DEFINED IN DSM-5 The most significant changes to the criteria for diagnosing

PTSD made in DSM-5 are:

• The addition of a fourth major symptom cluster. In the

newest update, the "avoidance/numbing" cluster found in

DSM-IV has been split in two: "avoidance" and

"persistent negative changes in cognitions and mood."

• The broadening of a pre-existing cluster, "changes in

arousal and reactivity," to include additional symptoms

such as angry outbursts, irritability, and self-destructive

or reckless behavior.

• Lower diagnostic thresholds for children and

adolescents.

• The addition of a new subtype of PTSD for children ages

six and younger.

THE DSM-5 CONTROVERSY

There has been some criticism of the DSM-5 updates to PTSD; most of it

suggesting that the new criteria is overly broad. Criminal prosecutors in

particular have been skeptical of the changes, claiming that it is now easier

than ever for expert witness testimony to establish PTSD, which will lead to

an increase in the number of defendants who use it as a part of their

criminal defense.

While the current application of PTSD in criminal defenses may be

controversial, the wide spread acceptance of PTSD as a legitimate medical

condition means that it will continue to be used as a part of legal defenses,

and that it will most likely continue to be regarded as a legitimate

extenuating circumstance by juries.

Forensic Psychiatric Associates

Medical Corporation (fpamed) is a

group of psychiatric and

psychological experts who provide

support to defense attorneys,

prosecutors, and civil plaintiffs

nationwide. Fpamed provides

reports, consultations, and expert

testimony on matters of mental

health and the legal system, with

the aim of presenting complex

psychological and behavioral

analysis to the court in an

understandable, evidence-based

manner. For more information, call

(415) 388-8040 or visit

www.fpamed.com.