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Fraud and Fitness to Stand Trial

Medico Legal

by Dr Kari Carstairs

Fraud involves a person deliberately deceiving avictim for personal gain of property or money.According to the National Fraud Intelligence Bureau,fraud offences in the UK have been increasing since2012. There are very few empirical studies in thepsychological literature of perpetrators of this type ofcrime as compared to acts of violence against theperson but it is clear that fraud is a product of a combination of individual and situational factors (Kapardis & Krambia-Kapardis, 2016). A person may beexperiencing financial stress and may be open tosolving this by dishonest means but to commit fraud,there must also be the right opportunity. Fraud mayhave increased because of the internet, which facilitates the possibility of anonymity, and the reduction insocial cues when using electronic communication.

Kapardis & Krambia-Kapardis (2004) reviewed theexisting evidence to conclude that the majority ofserious fraud offenders are male, aged 35 to 45 years,married, and are of high educational status, with noprevious criminal record. A more recent study(Springer, 2018) looking at a particular type of fraud(Ponzi schemes) found that the majority of perpetrators were white males over the age of 50. In a 2014 article in “World Finance” the list of the so-called topten most controversial fraudsters consists of menonly1 but this in itself does not tell us much; men aremore likely to commit crime in general and obviously,women are not exempt from committing fraud.

Fraud is a broad term that covers a very wide rangeof offences. The Office of National Statistics states thatthe most prevalent type is banking and payment cardfrauds which involve falsely obtaining personal carddetails in order to carry out fraudulent transactions.There is no one type of person who represents thetypical fraudster; someone who commits one fraudulent benefits claim for a few thousand pounds is verylikely to have led a completely different life as compared to a person who defrauds thousands of peoplefor millions of pounds in an investment scam.Although some offenders will be psychopaths(Babiak, 2016), most will not and Kapardis &Krambia-Kapardis (2004) found that two thirds ofoffenders were conventional, law-abiding peopleuntil they decided to exploit an opportunity tocommit fraud, acting either out of greed or to dealwith a crisis in their personal lives because of a seriousfinancial problem.

Psychological evidence is often called for in fitness tostand trial cases. The accused is considered to be fit ifhe or she can plead to the indictment, understand thecourse of proceedings, instruct a lawyer, challenge ajuror and understand the evidence. This area of lawis currently under review, following a report from theLaw Commission in January 2016.2This reportadvocates for more explicit consideration of decision-making capacity and argues that there is an unduefocus on intellectual ability currently, with a relativeneglect of issues relating to severe mood disorders ordelusional thinking.

During the course of over 25 years of working as anexpert witness, I have assessed many defendants facing charges of fraud. The vast majority of them weremen. In two cases, the legal issue was a plea in mitigation and in the others, it was fitness to stand trial.Despite the conclusion from the Law Commission, inall of my cases, the psychological issues concernedmental health and there was no question of a learning disability.

A psychologist should always consider the possibilitythat the defendant may not be truthful in any reportfor the Court but this becomes a particularly acuteissue in cases where the defendant is charged withfraud. With other types of crime, dishonesty is notnecessarily an integral part of the offence whereasfraud is by definition a crime of dishonesty. FormerFBI director, James Comey, commented on thepropensity for these perpetrators to lie in order tocover up bad behaviour (Comey, 2018). A multi-method approach is essential (de Ruiter & Kaser-Boyd, 2015) and the psychologist should never relyon an interview alone. Psychometric data complements the interview and a thorough review of documentation pertaining to the alleged offence and tothe person’s medical history. Although psychologistscannot claim to have a “litmus test” for lying, thereare well established techniques, supported by aconsiderable body of peer-reviewed research, forassessing the reliability of the defendant’s self report.

Psychologists should integrate information across several different measures, including performance basedtests, such as the Rorschach. This test is not dependent on self-report. It is an information-processing,problem solving task in which the respondent is presented with ink blots and asked what they look like.The way in which the respondent organises his or herresponses provides a picture of how perceptions,thoughts and feelings are structured and processed.The Rorschach can assist in establishing functionaldeficits that stem from mental health issues, particularly psychosis (Gray & Acklin, 2008).

An assessment of fitness to stand trial should includeconsideration of the demands of the particular trialin question (Zapf & Roesch, 2009), including thecomplexity of the charges, the probable length of thetrial, the range and type of evidence to be presented,the necessity for the defendant to give testimony and potential for emotional distress. In large fraud cases,trials are likely to be lengthy and require attention todetailed financial transactions, with a considerable information processing demand on the participants.The psychologist needs to integrate the results fromthe assessment with the specific demands that thedefendant would face if the case goes to trial in orderto reach an opinion about how this individual wouldcope in that situation and consider whether anyspecial measures might ameliorate any potentialdeficits and render the person fit.

Lastly, criminal cases more often require oralevidence as compared with civil cases. The fraud casesin which I have served as expert were demandingand complex, with extensive historical backgroundinformation. A competent expert must be able to giveevidence in Court in a clear and convincing manner,presenting a psychological formulation in ordinarylanguage that links the data from the assessment tothe legal issue that the Court needs to address. Acompetent expert will also answer challengingquestions honestly and openly, with due regard to thescientific status of the test results and to any areas ofuncertainty, so that the Court is assisted in itsdecision-making.

References

Babiak, Paul (2016). Psychopathic manipulation at work.In Carl B. Gacono (Ed.), The clinical and forensic assessment of psychopathy: A practitioner’s guide: Second edition. New York: Routledge (pp. 353-373).

Comey, James (2018). A higher loyalty: Truth, lies andleadership. New York: Macmillan.

De Ruiter, Corine, & Kaser-Boyd, Nancy (2015). Forensic Psychological Assessment in Practice: Case studies.New York: Routledge.

Gray, B. Thomas, & Acklin, Marvin W. (2008). The useof the Rorschach inkblot method in trial competencyevaluations. In Carl B. Gacono & F. Barton Evans (Eds.),The Handbook of Forensic Rorschach Assessment. NewYork: Routledge (pp. 141-155).

Kapardis, Andreas & Krambia-Kapardis, Maria (2004).Enhancing fraud prevention and detection by profilingfraud offenders. Criminal Behaviour and MentalHealth, 14, 189-201.

Kapardis, Andreas & Krambia-Kapardis, Maria (2016).Applying evidence-based profiling to disaggregatedfraud offenders. In Michel Dion, David Weisstub & Jean-Loup Richet (Eds.), Financial Crimes: Psychological,technological and ethical issues. Cham, Switzerland:Springer International Publishing (pp. 269-294).

Springer, M. L. (2018). The financial crisis and white-collar crime: An examination of brokerage-failure and itslink to Ponzi schemes. Dissertation Abstracts International Section A: Humanities and Social Sciences, 79(3-A(E)).

Zapf, Patricia A. & Roesch, Ronald (2009). Evaluation ofcompetence to stand trial. Oxford: Oxford UniversityPress.

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