Volume 22, No. 4,
Communicating And Collaborating with the Mentally Ill Defendant
by Eric Drogin, J.D., Ph.D.
The more elaborate our means of communication, the less we communicate.
Functioning within a system inured to spending hundreds of dollars an hour on specialized mental health expertise, many criminal defense attorneys adopt a deferential, even disingenuous manner when compelled to comment on the behavior of their own clients: "What do I know? I’m not a psychologist!"
For expert witnesses to wish they had a dollar for every time they heard this would be to ignore the fact that, of course, they already do. Many dollars.
As personally and financially gratifying as this approach may be for the forensic psychological community, one inescapable fact makes it less than ideal for attorneys and the persons they attempt to defend:
No matter what firm you join (to say nothing of working in indigent defense systems), there will never be enough money to run every mental health aspect of each case by a mental health expert or consultant.
This may never be more evident than during the initial phases of representation in cases where competency and sanity issues are off the table (and therefore, no funded mental health expertise is forthcoming), important deadlines are looming, and quite simply, you and your client are incapable of working together.
What is frequently overlooked in such cases is that the defense team already has considerable expertise at its disposal. Attorneys, investigators, and other staff persons have their own varied life experiences upon which to draw. In addition, in a somewhat different way from their mental health colleagues, they are themselves students (and, in the courtroom, teachers) of human nature, whose stock in trade already consists of identifying, explaining, and normalizing the behavior of persons from every walk of life.
The purpose of this article is not to turn defense team members into diagnosticians or psychotherapists, but rather to enhance their ability to communicate and collaborate with certain types of mentally ill criminal defendants. Common traits and recommended modes of interaction are identified where clients may be affected by symptoms of depression, mental retardation, paranoid personality disorder, bipolar disorder, Schizophrenia, and substance dependence.
Readers will find frequent references to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  While some (but not all) of the diagnostic criteria are identified for each of the disorders listed supra (in considerably abbreviated form), these are not intended for use in "ruling in" or "ruling out" the presence of a specific mental illness. Rather, they provide some very general examples of the sorts of actions, thoughts, or feelings defense team members may encounter when dealing with mentally ill clients.
According to the DSM-IV, persons suffering from a Major Depressive Episode may display:
For these and other reasons, the defense team may wonder whether such persons are actually competent to stand trial. Attorneys sometimes conclude – erroneously – that a client must exhibit psychosis or mental retardation in order to be incompetent. In fact, some severe forms of clinical depression can, in particular, render criminal defendants incapable of participating rationally in their own defense. 
Once the issue of trial competency has been resolved, the defense team may still be left with a client whose collaborative abilities are minimal at best. Key to establishing a working relationship with such persons is understanding what cognitive behavioral therapists have termed the cognitive triad: 
The cognitive triad consists of three major cognitive patterns that induce the patient to regard himself, his future, and his experiences in an idiosyncratic manner …
The first component of the triad revolves around the patient’s negative view of himself. He sees himself as defective, inadequate, diseased, or deprived. He tends to attribute his unpleasant experiences to psychological, moral, or physical defect in himself. In his view, the patient believes that because of his presumed defects he is undesirable and worthless. He tends to underestimate or criticize himself because of them. Finally, he believes he lacks the attributes he considers essential to attain happiness and contentment.
The second component of the cognitive triad consists of the depressed person’s tendency to interpret his ongoing experiences in a negative way. He sees the world as making exorbitant demands on him and/or presenting insuperable obstacles to reaching his life goals. He misinterprets his interactions with his animate or inanimate environment as representing defeat or deprivation. These negative misinterpretations are evident when one observes how the patient negatively construes situations when more plausible, alternative interpretations are available. The depressed person may realize that his initial negative interpretations are biased if he is persuaded to reflect on these less negative alternative explanations. In this way, he can come to realize that he has tailored the facts to fit his preformed negative conclusions.
The third component of the cognitive triad consists of a negative view of the future. As the depressed person makes long-range projections, he anticipates that current difficulties or suffering will continue indefinitely. He expects unremitting hardship, frustration, and deprivation. When he considers undertaking a specific task in the immediate future, he expects to fail. 
In other words, the depressed criminal defendant is not merely so "sad," "miserable," or "unhappy" that a preoccupation with these emotions is crowding out the desire to assist counsel in developing a viable defense to his or her current charges. Rather, clinical depression is inseparable from an entrenched negative of one’s self, situation, and prospects that interferes logically with the desire and/or ability to interact effectively.
Cognitive therapists have developed a series of labels to describe these "Common Patterns of Irrational Thinking":
These clients should never be told that they are not feeling what they claim to feel; nor should it simply be asserted that they are "wrong" about their perceptions and predictions concerning the case at hand.
Instead, counsel may elect to:
Persons who have received a diagnosis of mental retardation will typically exhibit:
Once the presence of mental retardation has been determined, interviewing these criminal defendants takes on a singularly diagnosis-specific aspect. Mitigation experts have maintained that:
People with mental retardation tend to think in concrete and liberal terms. As a result, they may not understand the meaning of such concepts as plea bargain and waiver of rights. One of the safest ways of communicating with people with mental retardation is to use simple words in open-ended questions. Always ask questions that require them to explain their reasoning. If possible, have present a social worker or an individual who is close to the defendant to assist him or her in interpreting what is being said and asked and to ensure that the defendant understands the process. 
This perspective has been echoed in recommendations offered by clinicians, as well:
Informal clinical interviews with the client (when possible) and informants who know the client well, such as parents, teachers, and day program supervisors, typically initiate the diagnostic process and precede structured assessment procedures. 
Although counsel will attempt to converse at a level most likely to be understood by the defendant with Mental retardation, this should not be taken as advice to speak with such persons as if they are children. According to core training resources in the field of psychiatry:
[T]he interviewer should not be guided by the patient’s mental age, which cannot fully characterize the person. A mildly retarded adult with a mental age of 10 is not a 10-year-old child. When addressed as if they were children, some retarded people become justifiably insulted, angry, and uncooperative. Passive and dependent people, alternatively, may assume the child’s role that they think is expected of them. In both cases, no valid [information] can be obtained. 
The defense team should also remain aware that they are not the only persons interested in obtaining information from the client with mental retardation:
Keep in mind that the defendant may be unfamiliar with the jail setting and will find themselves wanting to talk to anyone. If possible, counsel should obtain a court order to prevent the prosecution from contacting the defendant.
Many prosecutors send police personnel, investigators, or psychologists into the jail to interview the defendant. In most cases, a defendant with mental retardation will talk to these people, and may make false statements and admissions …
People with mild mental retardation often have significant difficulty coping and adapting. Skills such as communication, socialization, and functional academic abilities usually are quite limited. These skill deficits limit their ability to interact with their lawyer and to fully understand the significance of their Miranda rights.
This is especially problematic because defendants with mental retardation may waive their rights to remain silent or to speak with a lawyer, in favor of talking with interrogators to please them. Given this tendency, characteristics such as acquiescing to those in authority may hinder efforts to learn the truth. 
Because of the likely presence of suggestibility, counsel must be careful not to "lead" criminal defendants into misleading statements about past or present behaviors, feelings, and attitudes. The same dynamics that defense attorneys are concerned will impair a client’s Miranda protections may also burden the defense team with bogus information that will frustrate attempts at competent representation. 
PARANOID PERSONALITY DISORDER
A primary concern in working clients with a paranoid personality disorder is that they not be confused with those suffering from a full-blown Delusional Disorder (characterized by "non-bizarre delusions" that nonetheless represent a break from reality). 
Persons with the contrastingly non-psychotic, albeit clinically significant paranoid personality disorder may:
Once again, cognitive behavioral therapists have provided the most cogent description of the issues at play in developing a professional understanding with such individuals:
The first issue … is establishing a working relationship. This obviously is no simple task when working with someone who assumes that others are likely to prove malevolent and deceptive. Direct attempts to convince the client to trust the therapist are likely [to] be perceived by the client as deceptive and therefore are likely to increase the client’s suspicions.
The approach that proves most effective is for the therapist to openly accept the client’s distrust once it has become apparent, and to gradually demonstrate his or her trustworthiness through action rather than pressing the client to trust him or her immediately. 
A similar dynamic comes into play when the would-be collaborator is an attorney or investigator instead of a therapist or mental health counselor. Overt attempts at ingratiating oneself are likely to be interpreted quite negatively, while steadily building a track record of responsiveness and reliability is likely to advance the professional relationship significantly.
After all, individuals with a paranoid personality disorder are characterologically inclined to be suspicious and distrustful, but this need not be dominant substance or conclusion of every interpersonal contact. This having been said, however, defense team members should remain aware that setbacks are likely to occur from time to time, now matter how assiduously the trust relationship may have been cultivated. 
Regarding additional details of fostering collaboration and communication with these defendants over time:
It is then incumbent on the therapist to make a point of proving his or her trustworthiness. This includes being careful only to make offers that he or she is willing and able to follow through on, making an effort to be clear and consistent, actively correcting the client’s misunderstandings and misperceptions as they occur, and openly acknowledging any lapses that do occur.
It is important for the therapist to remember that it takes time to establish trust with most paranoid individuals and to refrain from pressing the client to talk about sensitive thoughts or feelings until sufficient trust has been gradually been established …
Collaboration is always important … in working with paranoid individuals. They are likely to become intensely anxious or angry if they feel coerced, treated unfairly, or placed in a one-down position …
This stress can be reduced somewhat by focusing initially on the least sensitive topics … and by discussing issues indirectly (i.e., through the use of analogies or through talking about how "some people" react in such situations), rather than pressing for direct self-disclosure. 
Patience is not the only virtue taxed by interacting with such clients. Somewhat counterintuitively in comparison to how they at least attempt to deal with many other defendants, members of the defense team must also be prepared to downplay the degree of shared insight, closeness and identification they express with the persons they attempt to assist in these cases:
[O]ver zealous use of interpretation – especially interpretation about deep feelings of dependence, sexual concerns, and wishes for intimacy – significantly increase [these] patients’ mistrust …
At times, patients with paranoid personality disorder behave so threateningly that therapists must control or set limits on their actions. Delusional accusations must be dealt with realistically but gently and without humiliating patients.
Paranoid patients are profoundly frightened when they feel that those trying to help them are weak and helpless; therefore, therapists should never offer to take control unless they are willing and able to do so.
According to DSM-IV, persons who have become dependent on any of a range of substances (including alcohol, cocaine, and others) may share several of the following experiences:
CAGE provides a mnemonic device for the exploration of the following areas: Cut down: "Has a doctor ever recommended that you Cut back or stop the use of alcohol?" Annoyed: "Have you ever felt Annoyed or angry if someone comments on your drinking?" Guilt: "Have there been times when you’ve felt Guilty about or regretted things that occurred because of drinking?" Eye-opener: "Have you ever used alcohol to help you get started in the morning; to steady your nerves?" 
Often the substance-dependent defendant is first encountered in the throes of withdrawal from chronic intoxication. The best strategy is to reschedule planned interviews, seeking a continuance on this basis if necessary. Not only will questioning at this juncture provide questionably reliable information and planning; it may also engender considerable resentment on the part of clients who will find it difficult to forget that defense team members chose such an inopportune time to put them through their paces.
"Withdrawal" is likely to be marked by considerable pain and psychological disturbance.  This is distinct from the longer-term process of "recovery," which involves, among other aspects, the gradual return of the central nervous system to an approximately pre-morbid level of functioning. In the case of long-term alcohol dependence, this component of "recovery" is generally estimated to take between 9 and 15 months. 
While the incorporation of direct interviewing assistance from family members has been identified as a useful technique in developing a relationship with defendants with, for example, mental retardation, it may become a "two-edged sword" in working with substance-dependent criminal defendants:
Addicts have most likely been hiding their problems from other family members for a long time, perhaps years. They may have been draining family finances to support their habits, often unbeknownst to anyone else. In some cases, this has gone on with the knowledge of other family members, who have chosen to ignore the problem.
When the "truth comes out" in the course of litigation, feelings of guilt and betrayal on both sides add fuel to already simmering resentments. Children reflect on how they have been deprived in the service of someone else’s addiction, or identify with a neglected or abused parent. Spouses express additional distress at the thought of how their children’s upbringing and educational prospects were impaired as a result of a partner’s addictive behavior. 
Defense team members need to take special care to gain a full understanding of the addicted client’s comprehensive legal situation. These persons often lead chaotic personal lives, are likely confused, and frequently have difficulty with trust issues, in a fashion seemingly similar to persons with paranoid personality disorder.  It is a good idea to go down a full list of potential problems with these persons, conveying at all times the understanding that these are situations which might occur with anyone, and that it is standard procedure to make sure that "all the bases are covered." 
Comprehension difficulties are a significant issue in these cases.  While deficits are typically not as profound nor as pervasive as those encountered with criminal defendants with mental retardation, they may still provide a substantial barrier to collaboration and communication:
Simply put, the addicted client may not understand what you are saying. He or she may be sleep deprived, hung over, or acutely intoxicated. There may be lingering effects of chronic substance abuse, and even permanent organic impairment. It follows that the addicted client who has been technically sober for some time may still have significant difficulties with memory and logical processing.
These deficits may be difficult to detect at first, as long as the addict can keep interactions at a social level that does not require complex reasoning …
In order to serve the client better, attorneys can also make a point of cycling back to earlier conversations, revisiting specific comments and information to make sure that clients have been following along. [S]trategic planning should proceed in a logical and stepwise fashion … 
The trademark attitude (and primary psychological defense) of the addict is denial.  Defense team members should not be surprised when addicted clients resolutely refuse to acknowledge aspects of their cases which would seem readily apparent to anyone else:
This situation can complicate the attorney-client relationship from its inception. Necessary data gathering is hampered from the beginning. Attorneys are unsure what clients cannot remember, and what they are simply unwilling to recall. What might appear to be evasiveness (or even outright duplicity) on the part of addicts may be explained by their ingrained inability to face certain aspects of their past and present lives.
Patience is the key in dealing with this situation. That is not the
same thing as acquiescence; clients need to learn as early as possible
that attorneys have duties that they must perform, and information that
they must obtain. To the extent possible, attorneys need to schedule sufficient
time to draw out the addicted client and work through areas of obvious
denial. The assistance of a therapist consultant may be particularly useful
at this juncture. 
Criminal defendants who have received a DSM-IV diagnosis of schizophrenia will often endure some or all of the following:
In those cases where psychotic symptoms are currently inactive, and thus at least temporarily in "remission," the defense team may be able to obtain useful information from criminal defendants, in addition to forming at least the basis for a working professional relationship.
Similar to difficulties encountered with persons diagnosed with a paranoid personality disorder, those subject to the vicissitudes of Schizophrenia may be prone to overreact to seemingly innocuous remarks and comments, even as more florid aspects of this illness are not readily apparent. From a classic reference designed for the families of persons with schizophrenia:
Interpretations of this kind may indeed increase the anxiety of the patient and hasten a new psychotic episode … [h]owever, distance is not desirable either and does not promote rehabilitation …
A question that comes up quite frequently is the following: Should the recovering patient be told the truth when some terrible event (sudden death or the diagnosis of a serious disease) occurs …?
Certainly we do not want to lie to patients or anybody else. However, there is a good time and a bad time for telling the truth. State hospital psychiatrists used to insist that no ill effects have ever resulted from the revelation of bad news. They were referring to a group of patients who, in addition to being ill, often lived in a state of alienation aggravated by the environment.
Many of these patients were not able to express their emotions. An apparent insensitivity should not be interpreted as imperviousness. Even a catatonic schizophrenic who seems insensitive and immobile like a statue feels very strongly. A volcano of emotions is often disguised by his petrified appearance.
With the recovering schizophrenic we find ourselves in a completely different situation. He is very sensitive … and would not forgive relatives for not telling him the truth. And yet knowing the truth may be detrimental to him when he is still unstable and still struggling to recover fully his mental health.
The patient has to be prepared gradually and eventually be told the truth when he has already anticipated in his own mind its possibility and the methods of coping with it. 
Does this sound complicated? Somewhat internally contradictory? More than someone would want to attempt on his or her own, or even with the assistance of a group of professional colleagues? Schizophrenia is a diagnosis apart, involving such high stakes and potentially volatile reactions that extreme caution is warranted when considering any significant interaction.
Guidance materials for psychiatrists further underscore this perspective, while lending some practical tips for working with Schizophrenic clients that generalize to other professional endeavors:
The relationship between clinicians and patients differs from that encountered in the treatment of nonpsychotic patients. Establishing a relationship is often difficult. People with schizophrenia are often desperately lonely, yet defend against closeness and trust; they are likely to become suspicious, anxious, or hostile or to regress when someone attempts to draw close.
Therapists should scrupulously observe a patient’s distance and privacy and should demonstrate simple directness, patience, sincerity, and sensitivity to social conventions in preference to premature informality and the condescending use of first names. The patient is likely to perceive exaggerated warmth or professions of friendship as attempts at bribery, manipulation, or exploitation.
In the context of a professional relationship, however, flexibility is essential in establishing a working alliance with the patient. A therapist may have meals with the patient, sit on the floor, go for a walk, eat at a restaurant, accept and give gifts, play table tennis, remember the patient’s birthday, or just sit silently with the patient.
The major aim is to convey the idea that the therapist is trustworthy, wants to understand the patient and tries to do so, and has faith in the patient’s potential as a human being, no matter how disturbed, hostile, or bizarre the patient may be at the moment. 
Although it is, of course, clinically distinct from other forms of mental illness, bipolar disorder calls for an interpersonal approach that mirrors to a considerable extent the adaptive procedures employed by defense team members when encountering clients with other psychiatric conditions.
Persons with bipolar disorder may be prey to dramatic fluctuation between manic episodes of seemingly unrestrained agitation and energy on the one hand, and almost catatonic periods of depression on the other. 
Similar to overtly psychotic phases of schizophrenia and profoundly debilitating manifestations of major depression, the criminal defendant with bipolar disorder may present as incompetent to stand trial or lacking in criminal responsibility  when experiencing the extreme manifestations of either affective component of this illness.
The defense team may be able to obtain important factual material, and forge some degree of cooperative bonding, between more dramatic changes in the client’s overall mood and accompanying behavior. In general, this is more likely to occur when a client is less depressed and more energetic, although a counterproductive irritability may characterize the later phase of his or her illness.
Key to the success of such encounters is a recognition that progress will be episodic. Considerable ground is likely to be lost when a fully realized manic episode eventually ensues. Contrastingly, there will likely be periods during which the patient’s mood appears to balanced that no mental illness is readily apparent. 
If interaction must be sustained during intermittent depressive stages of bipolar disorder, the approach will likely be substantially similar to that described supra for a free-standing case of major depression.
Attorneys, investigators, and other defense team members will encounter a myriad of mental conditions in their clients. While they are not encouraged to diagnose or treat mental illness, they are frequently compelled to interact with afflicted criminal defendants without the assistance of mental health professionals. When this occurs, there are various approaches to collaboration and communication that are specific to certain pre-identified diagnoses.
While they may not always be in a position to express their appreciation
directly, clients will always benefit when legal services are delivered
with consideration for (and adaptation to) the individual’s unique personal
Eric Y. Drogin, J.D., Ph.D., ABPP is an attorney and board-certified forensic psychologist, on the faculty of the University of Louisville School of Medicine. Dr. Drogin chairs the ABA Behavioral Sciences Committee, and serves on the ABA Commission on Mental and Physical Disability Law.
P.O. Box 22576
Louisville, Kentucky 40252-0576
(877) 877-6692 (voice; toll-free)
(877) 877-6685 (facsimile; toll-free)
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