A “What, When, Who, Where, Why, and How” Guide to Forensic Psychiatric Consultation in Criminal Mitigation

Tyler Durns, MD
Board-Certified Psychiatrist
Forensic Psychiatric Associates, LP
University of Utah – School of Medicine
Assistant Clinical Professor, Huntsman Mental Health Institute

Mentally ill and emotionally disturbed offenders comprise a significant group of those whose criminal conduct has brought them into the criminal justice system. This is a worldwide phenomenon (1). However, it may be even more pronounced in the United States Criminal Justice System (2). Epidemiological studies indicate 54% of prisoners in the U.S. Correctional System have a mental disorder. These rates are even higher in U.S. jails and in other phases of the adjudication process (3, 4). This is an alarming contrast to the one in twenty U.S. adults afflicted with serious mental illness overall (5). While some prisoners may develop their psychiatric illness during incarceration, many (if not most) have active symptoms of mental illness at the time of offending (6). Significant variations in diagnoses, circumstance, and care warrant meticulous and discrete attention throughout adjudication.

Fundamental to the U.S. Criminal Justice System is the principle of actus non facit nisi mens sit rea, a Latin phrase meaning “the act will not make a person guilty unless the mind is guilty.” Most states endeavor to account for this with a plea offering of “not guilty by reason of insanity.” Still, these provisions often fall short and in four states (Utah, Idaho, Montana, and Kansas), are not an option at all. Insanity statutes regularly fail to account for the complexity of mental illness and human behavior in its entirety. Herein lies the dialectic consideration that a mentally ill offender may not be eligible for a defense of insanity but may also not be entirely liable for their actions due to their psychiatric sequela. When applicable, legal professionals must consider:

  1. When and to what extent do principles of deterrence, rehabilitation, incapacitation, and retribution apply to the client?
  2. What variables should be examined to determine this?
  3. What medical and scientific evidence supports the opinion on their relevance?

The answers to such are of grave importance to the court, the client, and the public at large.

What can be done for an individual with a mental disturbance facing criminal charges.

In most jurisdictions, sanity is adjudicated during the guilt/innocence phase of a criminal trial. Although elements of the insanity defense vary by state, they minimally rely upon: 1) whether or not a defendant had a mental disease or defect at the time of an alleged offense; 2) if so, whether or not that defendant’s mental disease or defect substantively impaired his or her ability to appreciate the nature of his or her actions and/or; 3) his or her ability to differentiate right from wrong (morally, legally, or both) (7).

The fact that a convicted offender exhibits some mental disturbance may be considered in a variety of ways outside of insanity statutes. Those with an inclination to act criminally resultant their mental illness and other conditions may be considered for mitigation. Fundamentally, mitigation is an attempt to bring about a holistic and humane approach to mentally ill offenders while still holding them liable to some degree. In mitigation, sentencing judges are first tasked to determine whether the offender has a mental health problem or trying circumstances relevant to the criminal antecedent. Then, if the court finds the defendant was indeed impacted by such a disturbance, they decide what effect these issues should have on the sentencing determination.

When can mitigation be helpful.

Sanity and mitigating factors both bear directly on issues of responsibility and the outcome of criminal proceedings. The former is typically adjudicated during the guilt/innocence phase of a criminal trial. The latter may be considered during initial adjudication or in sentencing, in order to determine the degree and type of sanction imposed (7). Mitigation of a charge or charges may decrease the potential sentence and/or affect the range of punishments available to the trier of fact.

The U.S. Supreme Court has defined mitigating evidence as “any feature of a defendant’s character or history, or characteristics of the offense, that may convince the fact-finder to impose a sentence less than death” (8). The Court has also held that all relevant mitigating evidence must be considered by the sentencer (9).

The list of accepted considerations for mitigation is exhaustive. Unlike aggravating factors, which are often limited in sentencing statutes to certain prescribed categories of evidence (e.g., prior felony convictions), mitigating factors or evidence has been consistently defined by the courts as consisting of anything proffered by the defendant in support of a lesser sentence.

Mitigation evaluations are not utilized to question the direct culpability of a defendant. Alternatively, they assert that the defendant’s life history and mental status might reduce his moral culpability and need for punishment. Legal and moral culpability, at the heart of mitigation, acknowledges that we do not arrive at our decisions from uniform circumstance, and in turn are not equally blameworthy.

Who should consider a psychiatric evaluation for criminal mitigation.

Defense attorneys often seek to introduce evidence and testimony that humanize the defendant in a comprehensive manner—that is, to emphasize the defendant’s personhood and establish points of commonality between the defendant and the jurors who sit in judgment to decide his or her fate. Jurors may enter the courtroom with stereotypic views of criminality. False antecedents risk demonizing a mentally ill defendant in ways that impact prosecution and sentencing. Clinical indication that softens a defendant challenges the notion that criminal acts are perpetrated only by anonymous figures or monsters rather than real people with troubled lives encumbered by medical illnesses that they often have little control over. Defense attorneys in capital cases are required to conduct an investigation of all reasonably available mitigating evidence to satisfy the Sixth Amendment’s guarantee of effective counsel (10). Yet evidence suggests this is often not performed (11). To satisfy their obligation of conducting a comprehensive assessment of a defendant, attorneys often hire mental health experts to perform mitigation evaluations. These experts rely on medical and social science research and scholarship to guide them through mitigation assessments.

Although mitigation evaluations are typically conducted at the request of the defense, prosecutors may also obtain their own evaluator in order to gain an independent assessment or to challenge the findings of the defense expert. Experts may arrive at varying opinions which both merit consideration for judges and juries as presented by opposing experts.

Where can a forensic psychiatric consultation help.

Psychiatric diagnosis itself under the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, Text Revision (DSM-5-TR) (12) is not required for consideration of mitigation. Various biological factors have been associated with criminal behavior, including mental illness, genetic factors, malnutrition, parental substance abuse, nutritional deficiencies, head trauma, serious injuries, etc. (13). Other commonly cited predisposing factors for criminal behavior include adverse childhood experiences, low IQ, learning disabilities, criminal modeling by a parent, peer rejection and/or bullying, marital conflict, physical, emotional, or sexual victimization, family history of mental illness, parental absence and/or neglect, childhood abuse, and intoxication or indication of the long-term effects of such (14). The totality of considerations may then be parsed out by forensic psychiatric experts in a digestible manner to legal professionals and jurors in an effort to explain how an individual arrived before the court.

Why you should consider an expert.

Forensic psychiatrists are physicians who have received additional training at the interface of psychiatry and the law. They are the experts whom the courts regularly rely on to identify and delineate medical and scientific evidence that supports the opinion of proposed mitigating circumstances. Following completion of a bachelor’s degree or equivalent, four years of medical school, and a four-year psychiatry residency, select individuals go on to receive an additional year of subspecialty training in forensic psychiatry. Forensic training encompasses review of both criminal and civil matters as they pertain to both criminal and tort law. Forensic psychiatrists become experts in juridical evaluation and analysis, legal report writing, and expert witness testimony. Many also become certified in a variety of specialized neuropsychological testing instruments that are validated in identifying diagnoses, malingering, and risk stratification. While few, this group of experts have proven invaluable in criminal adjudication.

How it works.

Expert psychiatric evaluation, report, and testimony are vital elements to successful mitigation in many of these cases. A psychiatric evaluation entails an extensive assessment of the biological, psychological, and social factors that may assist the court in understanding the totality of circumstances presented (15). This is then formalized into a legal document accepted by the court. Forensic psychiatrists may then be called to testify regarding their evaluation and expert analysis.

When considering mitigating factors in sentencing cases, an attorney will ask for an assessment of his or her client’s personal history and determine whether or not medical, psychiatric, congenital, intellectual, educational, socioeconomic, or developmental injuries or deficiencies have predisposed the defendant to commit a crime or could reduce their culpability. Forensic evaluations often include some form of a risk assessment and may include treatment recommendations of how treatment and what type of treatment may reduce the likelihood of recidivism. Generally, mitigation evaluations are requested to delineate aspects of a defendant’s biological, psychological, and social circumstances that provide a more inclusive and humanizing narrative of the defendant’s life.

A mitigation report includes a client’s developmental, familial, educational, employment, medical, and mental health history, as well as their relevance at the time of the alleged offense. It explains the symptoms experienced by a client and how those symptoms potentially influenced the client’s thought process and proposed actions.  They include a variety of extenuating circumstances surrounding the incident.  The mitigation report is ultimately devised into a work product accepted by the court in manner that clearly devised and provides objective evidence of the expert’s ultimate opinion.

It is critical that the court understands the great body of statistical research and clinical indications of an expert’s conclusions. While these scientific deductions may be synthesized into a mitigation report, forensic psychiatrists may also be called to testify before court. Indeed, a significant portion of forensic psychiatric training demands proficiency in this and far supersedes that of the training general psychiatrists receive, which often includes no testimonial experience whatsoever.


Mitigation may be viewed as one of our criminal justice system’s indispensable expressions of compassion and understanding for the variety of human experiences and situations that lead individuals to aberrant and unlawful behaviors. Assessment and analysis of the totality of circumstances often require robust evaluation by forensic-trained psychiatrists. The ultimate opinion of these experts is taken into account by the court with earnest consideration and can dramatically impact outcomes for adjudication in the most dire cases.


  1. Fazel, S., & Seewald, K. (2012). Severe mental illness in 33,588 prisoners worldwide: systematic review and meta-regression analysis. The British journal of psychiatry : the journal of mental science, 200(5), 364–373. https://doi.org/10.1192/bjp.bp.111.096370
  2. Collier, L. (2014). Incarceration Nation. American Psychological Association, 49(9), 56. https://www.apa.org/monitor/2014/10/incarceration
  3. James, D.J, Glaze, L. (2006). Mental Health Problem of Prison and Jail Inmates (Report No. NCJ 213600). U.S. Department of Justice. https://bjs.ojp.gov/content/pub/pdf/mhppji.pdf
  4. Stinger, S. (2019) Improving Mental Health for Inmates. American Psychological Association, 50(3), 46. https://www.apa.org/monitor/2019/03/mental-heath-inmates
  5. National Alliance of Mental Illness. Mental Health by Numbers. NAMI. Retrieved November 30, 2022, from https://www.nami.org/mhstats
  6. Beaudette, J. N., & Stewart, L. A. (2016). National Prevalence of Mental Disorders among Incoming Canadian Male Offenders. Canadian journal of psychiatry. Revue canadienne de psychiatrie, 61(10), 624–632. https://doi.org/10.1177/0706743716639929
  7. Burrows, M., Reid, W. H. (2011). Psychiatric aspects of criminal responsibility: insanity and mitigation. Journal of psychiatric practice, 17(6), 429–431. https://doi.org/10.1097/01.pra.0000407967.80345.ac
  8. Lockett v. Ohio, 438 U.S. 586 (1978)
  9. Eddings v. Oklahoma – 455 U.S. 104, 102 S. Ct. 869 (1982)
  10. Wiggins v. Smith, 539 U.S. 510 (2003)
  11. Bagaric, Mirko, A Rational Theory of Mitigation and Aggravation in Sentencing: Why Less is More When It Comes to Punishing Criminals (2014). Buffalo Law Review Vol. 62, Available at SSRN: https://ssrn.com/abstract=2661887
  12. American Psychiatric Association. (2022). Diagnostic and statistical manual of mental disorders (5th ed., text rev.). https://doi.org/10.1176/appi.books.9780890425787
  13. Ling, S., Umbach, R., & Raine, A. (2019). Biological explanations of criminal behavior. Psychology, crime & law: PC & L, 25(6), 626–640. https://doi.org/10.1080/1068316X.2019.1572753
  14. Mundia, L., Matzin, R., Mahalle, S., Hamid, M. H., & Osman, R. S. (2016). Contributions of sociodemographic factors to criminal behavior. Psychology research and behavior management, 9, 147–156. https://doi.org/10.2147/PRBM.S95270
  15. Heilbrun, K. DeMatteo, D., Holliday, S.B., and LaDuke, C. (Eds.). (2014). Forensic mental health assessment: A casebook (2nd ed.). New York, NY: Oxford Press