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Illinois Signs Landmark Forensic Psychiatry Reform Into Law


 Transparency, Videotaping Required for Competency Evals

Springfield, IL – With the signature of Illinois Governor Pat Quinn, Public Act 98-1025 was enacted this past week, bringing a landmark advance in forensic science reform to forensic psychiatry. The Act requires the disclosure of notes, other evaluations relied upon, and videotaped interviews of defendants whose competency comes into question. Illinois becomes the first state in America to promote transparency and videotaping of psychiatric examinations, with the same expectations reserved for other forensic sciences and police interrogation. Governor Quinn signed the bill into law after it was passed unanimously in the Illinois House and Senate.


The bill was sponsored by Rep. Michael Zalewski (D- 23rd District; pictured), and was the brainchild of Dr. Michael Welner, Chairman of The Forensic Panel. Dr. Welner’s articles in the Chicago Daily Law Bulletin and National Law Journal advocating transparency and videotaping as essential measures of a forensic psychiatry in significant need of reform resonated with Rep. Zalewski, a progressive-minded criminal justice leader, and with colleagues who earlier sponsored legislation mandating videotaped police interrogation. The Director of State Attorneys Appellate Prosecutor, Patrick Delfino, found common ground with those who have passed reform measures in the wake of wrongful convictions.


“Everyone, even expert psychiatrists, is entitled to their own opinions, but not their own facts.  This new law assures that the facts behind an expert’s opinion, whether a defendant’s or the State’s, is disclosed to the other side. I believe this will eliminate some of the error as well as some of the gamesmanship which occurs during this critical stage of the criminal justice process,” remarked Rep. Zalewski.


Dr. Welner, who earlier testified to the Illinois House Committee to endorse the bill’s passage, detailed to legislators the range of benefits to justice of transparency and videotaping, from increased validity, to curtailing bias and the concealment of probative evidence, to establishing a baseline of an examinee for future comparison should a defendant’s mental status change. He praised Governor Quinn and Rep. Zalewski for the courage to establish protocols enabling the justice system to get the most science out of forensic psychiatry and psychology. “When I make a determination of fitness, I want a full data set to form my opinion. I readily share my notes and videotaped interviews with my psychiatric colleagues and should expect others to reciprocate the same transparency. Whether for the State or Defense, we should have one goal, the accurate assessment of an alleged offender’s fitness to stand trial. Illinois has now established expectations for psychiatry to live up to all that justice deserves,” noted Dr. Welner.


This reform serves as a national model for best practice in the field. Failure to videotape the forensic interview, for example because of impracticability, does not bar the expert’s testimony, but the law directs the Court to consider that failure in determining how much weight to give that expert opinion. Noted Dr. Welner, “So much of the information gathered through a forensic interview is contained within the human evidence, facial expressions, attention, demeanor, voice inflection. Without videotaping, that evidence is lost, even to the original reviewer. If the objective is transparency and integrity, my belief and endeavor is that it’s a lot easier to videotape. Recording technology is ubiquitous and accessible. I have videotaped examination at Guantanamo Bay. If you can videotape under the restrictive security conditions of Guantanamo Bay, you can videotape anywhere.”


The Illinois State Attorneys Appellate Prosecutor views the law as a new direction for its office, in proactively promoting advances in criminal justice policy that can be replicated in other states, and should be. Explained Mr. Delfino, “This initiative, along with the enactment of the new electronic search warrant law and the establishment of the Best Practices Committee through our Agency, reflects our renewed commitment to shaping criminal justice policy and practices and not merely reacting to changes in the law, society, or technology.”


It would be unthinkable for a forensic chemist to testify about a DNA sample’s interpretation, without being about to produce and account for a chain of custody, the techniques of analysis, and the actual raw data. Transparency about sources accessed and disclosure of notes created, along with videotaped forensic interviews, ensures that the psychiatrist and psychologist’s testimony is the product of reliable principles and methods. By giving videotaped forensic interviews to the defense, the prosecution, and the court, interactions between examiner and examinee are clear, and there is transparency of what an examinee stated, how he stated it, what was communicated about and how, a full context to remarks, and clarity about the stage at which discussions took place.


The Forensic Panel strongly encourages legislators of other states to follow the example of Illinois, and for the National Commission on Forensic Sciences, the U.S. Department of Justice, National Association of Criminal Defense Lawyers, the American Academy of Psychiatry and the Law, and the American Academy of Forensic Sciences to endorse and promote laws that bring the credibility of transparency – finally -- to forensic psychiatry and psychology.


Link to Public Act 98-1025   
Related articles in Chicago Daily Law Bulletin
Related article in National Law Journal