American Legal Injustice: Behind the Scenes With an Expert Witness

Emanuel Tanay, MD, a retired clinical professor of psychiatry at Wayne State University in Detroit and a prominent forensic psychiatrist, shares his almost 50 years of experience as an expert witness. The book is an exposition of the variety of injustices that he has encountered in his years of involvement with the justice system.

It is not surprising that Tanay is particularly sensitive to injustice, with his background as a Polish Jew caught in the web of the holocaust as an adolescent. Through his bravery and ingenuity, he was able to survive, as he described in his book, Passport to Life.¹

In the first part of American Legal Injustice, he remarks that defendants are often seen as guilty until proven innocent. He is critical of elected prosecutors who he says tend to overcharge defendants with criminal offenses for political purposes. He contends that he is equally offended by those police officers who use deception to produce false confessions and elected judges who are in cahoots with prosecutors and disparage the insanity defense. During criminal proceedings, he most often has been retained by defense attorneys. He is critical of inexperienced defense attorneys who resist consulting with more experienced professionals and who fail to accept advice from expert witnesses regarding trial strategy.

When he gets involved in a case, Tanay thoroughly reviews all available records and usually conducts multiple interviews. If he is convinced that he can be helpful to the defendant, he is eager to present his findings in court. He says that, although testimony is one of the most important functions of the forensic expert, few forensic psychiatrists have the training or experience to present cases optimally in courtrooms. He offers a list of eight attributes of an effective expert witness: professional competence, the ability to convey authority and to garner respect from the jury, familiarity with the details of the case, the capacity to testify with emotion, the ability to respond to questions spontaneously when under stress, prescience regarding trial strategy and the goal of the proceedings, the capacity for using one's demeanor and verbalization to command attention in the courtroom, and a structural sense of how one's testimony fits with the rest of the trial.

Since he is invested in his testimony, Tanay is acutely sensitive to case details that may diminish the effectiveness of his work. He says that he is prepared to challenge prosecutors and judges from the witness stand and shares examples of such confrontations. Some seem minor, such as commenting in court when the judge shuffles papers or uses body language that detracts from the testimony. Others are much more significant, such as when he was accused of racism, his credentials were debased, or his testimony was demeaned. He relates that it is ethical to speak up when the expert is on the side of justice. However, in the preface of this book, distinguished forensic psychiatrist Robert Simon cautions neophytes that imitating Tanay's unorthodox confrontational style during testimony may be perilous.

In Part II of the book, Tanay describes cases in greater detail. One involved determining the cause of death of a youth, which the medical examiner, a firefighter by training, had ruled to be suicide. Tanay became convinced that the death was accidental; the distinction was an important one for the youth's parents. The author was instrumental in reversing the cause-of-death decision and is very critical of unqualified, elected medical examiners.

In one chapter, Tanay recapitulates the well-known classification of homicides that he published in his book, The Murderers.² The classification includes homicides with ego syntonic, ego dystonic, and psychotic motivations. Ego syntonic homicides are goal directed and often planned. Those that are ego dystonic represent a disruption of ego functions, often in the course of a rage reaction. Tanay contends that, owing to untrained police personnel and zealous prosecutors, perpetrators with ego dystonic motives, who are often involved in spousal or other family homicides, are charged with first-degree murder, but should be charged with a lesser degree of murder or manslaughter. He uses case examples to illustrate his concept.

Perhaps the most controversial case described in this book is that of Ted Bundy, who was charged with the capital offenses of rape and murder. After examining the defendant, Tanay diagnosed psychopathy in Mr. Bundy. Tanay believes that if psychopathy is severe enough, it becomes a mental illness; this line of thinking runs contrary to psychiatric diagnostic classification. Mr. Bundy's malignant narcissism and masochism led Tanay to conclude that the defendant would sabotage all efforts to cooperate with his attorneys. He took the unorthodox position of opining that Mr. Bundy's personality rendered him incompetent to represent himself and incompetent to stand trial. Mr. Bundy, who repeatedly undermined his attorneys as his case was heard in state and federal courts, was found competent to proceed with trial and was sentenced to death and eventually executed.

The author describes several cases in which he attempted to secure justice for those convicted of murder. Sam Sheppard, an osteopath who initially was convicted of the murder of his wife, was granted a new trial 12 years later and was found not guilty. Tanay attempted to clear Mr. Sheppard's name posthumously by proving his innocence in a civil trial. Sterling Spann was convicted of the rape and murder of an elderly woman and served almost 20 years in prison. Tanay was instrumental in convincing others that Mr. Spann was innocent, and his conviction eventually was overturned. After Jack Ruby was sentenced for killing Lee Harvey Oswald, Tanay found him to be psychotic and attempted to secure appropriate psychiatric treatment for him.

Regarding the insanity defense, Tanay notes that politicians and the public are prejudiced against it, even when a defendant is grossly psychotic. He extensively reviews the cases of John Hinckley, Jr, and Andrea Yates, in which the defense prevailed. In the Yates case, he criticizes the testimony of the lead psychiatric experts for both the prosecution and the defense. He also comments directly on the costs of these proceedings, including the extraordinary fees charged by experts in situations in which the severe mental illness of the defendant at the time of the offense is obvious.

Emanuel Tanay has written a passionate, readable, provocative, and controversial memoir about his unique style and experiences in forensic psychiatry. He has exposed many flaws in the justice system that should be addressed. I recommend his book highly.

• © 2013 American Academy of Psychiatry and the Law