Fitness for Interrogation and Fitness to Stand Trial
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MEDICINE
REVIEW ARTICLE
Fitness for Interrogation
and Fitness to Stand Trial
Markus Alexander Rothschild, Erland Erdmann,
Markus Parzeller
SUMMARY
Introduction: Fitness for interrogation is considered to be the capacity to understand the meaning
of questions posed during police investigations and in court, and to answer such questions
meaningfully. In a civil court proceeding, fitness to stand trial is equivalent to the capacity to sue
and be sued. The capacity to sue and be sued is related to contractual capacity. In criminal law,
fitness to stand trial refers to the accused in criminal proceedings (principal proceedings).
Methods: Selective literature review. Results/Discussion: The German Federal High Court of
Justice (BGH) defines fitness to stand trial as a state of mental clarity and freedom, such that it
is possible to proceed against the accused according to criminal law. He or she must be in a
position to represent his or her own interests reasonably, to maintain his/her rights, to conduct
his/her defense in a reasoned and understandable manner and to deliver and understand
procedural declarations. In addition, the principal proceedings may not endanger the life of the
accused nor result in irreparable severe damage to his/her health.
Dtsch Arztebl 2007; 104(44): A 3029–33
Key words: fitness for interrogation, fitness to participate in legal proceedings, fitness to stand
trial, medical expert opinion
P rosecutorial interrogation or court proceedings can be stressful and burdensome for
charged parties and witnesses alike. Some patients thus ask their general practitioners
to attest to the fact that they are too sick to appear in court. In German court proceedings,
medical certificates of unfitness to work are presented as though to suggest that the witness
or accused were "unfit to stand trial" (verhandlungsunfähig, lit. "unfit for proceedings").
The problem has its origins in the terminology: concepts like (un)fitness for trial or
interrogation, (un)fitness for proceedings or to appear in court are derived more from legal
than from medical terminology. The evaluation of these various suitabilities and fitnesses
is, some exceptions aside, a task that is often forensic and medical, and in which especially
procedural knowledge is of practical importance (1–3).
The aim of this overview, made on the basis of a selective review of the literature and
jurisprudence, is to explain the different technical terms and to specify the essential criteria
in such expert evaluations. The following will not describe examinations by specialists in
internal medicine or by psychiatrists to establish, for example, unfitness for proceedings or
interrogation (4–6).
Interrogation
Interrogation means that the person performing the interrogation demands, in an official
capacity, information or statements from the accused, the witnesses, or experts.
Fitness for interrogation
These participants in the proceeding are "interrogated," and thus must be fit for interrogation.
Fitness for interrogation is understood as the ability, under interrogation by investigation
authorities or courts, to understand the meaning of the questions and the ability to answer
while preserving the party's freedom of decision and freedom of action (7, 8). An accused
party, pursuant to § 136 StPO (Strafprozessordnung, German Rules of Criminal Procedure),
has the opportunity in preliminary proceedings (first interrogation by a judge) to respond
orally to the charges made.
Institut für Rechtsmedizin, Universitätsklinik Köln: Prof. Dr. med. Rothschild; Klinik für Innere Medizin III, Universitätsklinik Köln:
Prof. Dr. med. Erdmann; Zentrum der Rechtsmedizin, J. W. Goethe-Universität Frankfurt/Main: Dr. med. Parzeller
Dtsch Arztebl 2007; 104(44): A 3029–33 ⏐ www.aerzteblatt.de 1MEDICINE § 36a StPO (prohibited methods of interrogation) aims first and foremost at guaranteeing the accused a free and orderly condition during his interrogation. During interrogation, the freedom of decision and the freedom of action may not be restricted through discernible disturbances of consciousness or manipulated intrusions. Impairments to the ability to remember can arise, for example, through cognitive disorders, such as severely compromised cerebral blood supply. The freedom to decide what statements to make, and to decide on their scope and their content, is encompassed in the idea of the capacity for insight – in other words comprehension of the facts and recognition of the significance of one's own testimony (8). This is not the same as legal competence in civil proceedings (§§ 104 ff. BGB, Bürger- liches Gesetzbuch, German Civil Code). Rather, it is closer to the capacity to consent to medical treatment, and can also be defined as the capacity to communicate content in an orderly fashion (9). Unfitness for Interrogation Unfitness for interrogation may be presumed when there is a far-reaching impairment of consciousness, thinking, desire, will, or memory. The causes of this may result from illness or be caused intentionally and culpably (cf. § 231a StPO). Cases in which even the most basic ability to communicate may be lost, creating a presumption of unfitness for interrogation, include cases of intoxication caused by alcohol, medication, and drugs, severe withdrawal symptoms, severe acute stress reactions, acute psychosis, delusions, disorientation regarding time, location, or persons, and clouding of consciousness (1, 7). The question of a psychopathological basis for unfitness for interrogation is reviewed by a psychiatrist with forensic experience. Especially in the context of the interrogation of witnesses, it should be stressed that unfitness for interrogation in criminal proceedings is not to be confused with unfitness for military service or unfitness for work. A mechanic who is unfit for work (i.e. has received a medical certificate) because of a broken arm can be entirely fit for interrogation. The question that would arise in such a case is one of fitness to appear in court (i.e. capacity for travel or transportation), about which the physician should also deliver his opinion. Prohibited Methods of Questioning § 136 a StPO expressly notes the prohibition on interrogation done through means that impair the freedom of decision or action, and on measures that influence memory or the capacity for insight. This does not mean, however, that a patient is to be considered unfit for interrogation simply because he is, for example, taking prescribed medication that affects the central nervous system. Each case is decided according to its individual circumstances (3, 10). It is accepted that persons who are modestly tired or exhausted can be made more fit for interrogation through the use of stimulants (coffee, tea, caffeinated carbonated beverages), and of cigarettes for smokers (10). For individuals with diabetes, insulin shots and the administration of carbohydrates to avoid hyperglycemic or hypoglycemic states are permissible. The use of anticonvulsives on persons with epilepsy, as well as the use of other psychopharmaceuticals (e.g., to treat somatoform exhaustion), may also be acceptable. On the whole, all medications are permissible within the context of a medically indicated treatment to treat the illness of the relevant party (also, for example, analgesics and cardiac drugs) (10). "Forced treatment" to produce or maintain the party's fitness for interrogation is, however, out of the question. This applies even to treatments that promise success and are linked to no significant risks (see the Karlsruher Kommentar on the StPO, 5th ed. 2004, § 231 a, margin number 3). Views differ as to what extent of impairment of the will caused by the administration of medically indicated medications or treatments will render a party unfit for interrogation (3, 8). It is said that only "substantial" impairments of free will meet the legal requirements for unfitness for interrogation (8), such that questions arise as to what impaired states are and what the degree of substantiality is. To allow a party to be considered unfit for interrogation without serious impairment of free will would be too far- reaching and too one-sidedly focused on the interests of the accused (2, 3, 8). What matters instead is whether freedom of decision is clearly reduced through an altered self-criticism and sense of responsibility, whether the party acts in a way against, or untroubled and uninfluenced by, his own interests, and whether real reductions and deficits in ability appear. The freedom to choose what to say is held to be substantially impaired when the relevant Dtsch Arztebl 2007; 104(44): A 3029–33 ⏐ www.aerzteblatt.de 2
MEDICINE party "said more" under the influence of drugs "than he would have said without them," or if he was "in a state of at least reduced free will and freedom of decision" (11). The proceeding Fitness to stand trial In civil proceedings, fitness for proceedings is termed the capacity to sue and be sued, and is not identical in its requirements with fitness for proceedings under criminal law. The civil concept describes a party's capacity, to be reviewed ex officio (§ 56 ZPO, Zivilprozess- ordnung, German Code of Civil Procedure), to accept or carry out legally binding procedural actions himself or through a representative he himself appoints (§§ 51, 52 ZPO) (12). The German Code of Civil Procedure declares those persons who are fit to oblige themselves contractually to also have capacity to sue and be sued (§ 52 ZPO). In contrast to fitness to stand trial, the capacity to sue and be sued is connected to the fitness to contract. Parties unfit to enter into contracts (for example, children under 7 years of age, persons in a coma caused by an accident) lack the capacity to sue and be sued and must be represented in court, as necessary, by a legal representative (§ 51 ZPO) or next friend (§ 57 ZPO). The evaluation of capacity to sue and be sued is assessed according to the measures given in the BGB (Bürgerliches Gesetzbuch, German Civil Code) as the preconditions for contractual capacity. Long, ongoing, serious psychiatric disorders that neutralize free will, such as schizophrenic psychoses and dementia syndromes, can be the basis for incapacity to contract (§ 104 BGB) and thus the incapacity to sue and be sued (7, 12). Mere doubts regarding the capacity to sue and be sued are insufficient to create a presumption of incapacity to sue and be sued. For this reason, psychiatrists, and physicians with specialized psychiatric expertise are often asked to assess the capacity to sue and be sued. Fitness to stand trial The concept of fitness to stand trial applies to defendants in criminal proceedings (principal proceedings). Carrying out principal proceedings without the presence of the accused would violate his claim to be heard in court (Art. 103 para. 1 Basic Law) in connection with his right to a fair trial (Art. 2 I in connection with Art. 20 III Basic Law) (13). The accused is not an object to be negotiated over, but rather a subject with whom to negotiate (14). Understood in the context of the defendant's quality as a subject, which is related to human dignity and part of the rule of law, the fitness to stand trial must guarantee that the defendant can make use of his authority to act in and influence his proceedings (13, 15, 16). In this vein, the leading view defines fitness to stand trial, in the context of the criminal law, thus: "the defendant must be able to have a reasonable understanding of his interests inside and outside of the proceedings, to lead his defense in a comprehending and comprehensible manner, and to submit and receive court statements." Thus the defendant should be in a state of mental clarity and freedom (13, 15–17). It must be possible to proceed with him under criminal law in such a way that he is able, in view of his psychiatric and physical condition, to follow the proceedings, to recognize and appreciate the significance of the proceedings in general and individual procedural acts in particular, and to defend himself properly. Whether a party is fit to stand trial must be evaluated in each of the various stages of the proceedings, because the requirements for the capacity to reasonably understand one's interests vary by procedural position (15, 17). Fitness to stand trial, in short, is thus also the capacity to reasonably understand one's interests in a given procedural context (16). The defendant can make motions and call witnesses himself. He, as well as his defense counsel, will be heard before decisions of the court. These rights give the defendant the opportunity to shape the proceedings independent of counsel and to defend himself in this way (16). The individual liberties guaranteed in the German Basic Law do not permit principal proceedings to be imposed on a defendant in the defendant's illness-caused absence (13). The defendant's right to be present is set forth in § 230 para. 1 StPO. Whether a patient has defense counsel thus plays no part in the determination of the patient's fitness to stand trial. He must have the aforementioned capacities to participate in the proceedings. Unfitness to stand trial If the above requirements for fitness to stand trial are not (or are no longer) present, limited fitness or unfitness to stand trial will be assumed. Generally, severe physical or psychiatric Dtsch Arztebl 2007; 104(44): A 3029–33 ⏐ www.aerzteblatt.de 3
MEDICINE symptoms or morbidity can limit or rule out fitness to stand trial (2, 3, 13, 15, 18). Advanced chronic progressive diseases in their terminal stage, such as malignant neoplasms, decompensated liver cirrhosis, uremia not amenable to dialysis, and cerebral lesions with severe neurological deficiencies generally imply unfitness to stand trial (19). In addition, psychotic illnesses, severe organic psychosyndromes, and severe mental deficiencies can limit or eliminate entirely the ability of the defendant to follow the proceedings mentally and to take an active part in his defense (3, 7). Alongside impairments of concentration and attentiveness, other important elements when reviewing fitness to stand trial include problems of speech (its understanding and production), memory formation and recall, planning, and the organization of action. Retention is emphasized among the necessary powers of memory; if it is not possible for the affected party to remember court proceedings a few minutes after they occur, it cannot be assumed that he has the capacity to follow the proceedings (20). The extent and the intellectual difficulty of the criminal proceedings at hand also play a role in the expert determination. For example, a defendant exhibiting clear symptoms of brain damage may have (limited) fitness to stand trial in court proceedings involving shoplifting, though his fitness to stand trial for complex criminal proceedings in tax or business matters would most likely be found lacking under these circumstances (7). These are decisions about individual cases, and they must be carefully weighed (21). The defendant's mental performance must be carefully reviewed, too, to which end it may be necessary to draw on the resources of psychological testing. Risk The evaluation of fitness to stand trial can be complicated by the fact that a mentally healthy defendant who is able to defend himself may nonetheless be unfit to stand trial if carrying out the principal proceedings would endanger his life or cause irreparable and serious harm to his health (22, 23). The active or passive participation in principal proceedings, amidst the threat of being found guilty and the fear of punishment, can create heightened risk for medically predisposed parties. In evaluating physical fitness to stand trial, the examining physician therefore must consider what levels of risk to tolerate. The assessment should incorporate and weigh the defendant's likely reactions, and also in particular the expected duration of the trial (9, 24). Here the primary issue will be, from the perspective of internal medicine, the clinical picture, which may, in connection with emotional burdens and states of emotional arousal, both increase the danger to health and also, for certain personality structures, impair mental and spiritual ability. Among internal diseases, cardiac diseases merit first mention; other relevant internal diseases include diabetes mellitus and kidney and tumoral diseases. The mere possibility of life-threatening illness or of harm to the health of the defendant patient does not, of itself, justify a presumption of an ongoing and unalterable unfitness to stand trial (15, 18, 23). The health risk the defendant fears may result from the impending court proceedings must be confirmed (or rejected) by the expert assessment of fitness to stand trial. Furthermore, the appearance of grave health complications must be shown with a certain degree of probability (and not only shown to be a possibility). (7). The review of health risks for the defendant often takes place through a collaboration between a certified specialist in the relevant clinical area (who determines the course of a given disease, its risks and complications, and the possibilities for treating it) and a forensic pathologist or forensic psychiatrist familiar with the course of and burdens posed by principal proceedings. The latter carries out the evaluation and categorization of the information for the purpose of determining fitness to stand trial. There is also the possibility, which is at base always conceivable, that the illnesses are simulated (17). If doubts are present regarding the defendant patient's claims of illness, then the existence of those illnesses must be investigated with the aid of established diagnostic procedures taken from the increasingly powerful tools of medical diagnostics. Limited fitness to stand trial The medical expert examining a defendant with regard to fitness to stand trial has three options at his disposal: in addition to fitness and unfitness to stand trial, there exists, as there does not with regard to the capacity to sue and be sued, a third alternative, that of "limited fitness to stand trial." Dtsch Arztebl 2007; 104(44): A 3029–33 ⏐ www.aerzteblatt.de 4
MEDICINE
In evaluating whether the defendant can reasonably engage with and defend himself in
the proceedings, as in evaluating possible health risks associated with participation in the
proceedings, the expert assessor must consider whether the defendant might have at least
limited fitness to stand trial in modified proceedings (Löwe-Rosenberg, StPO, 25th ed.,
2001, vol. 4, § 231 a, margin number 3). In his report, the medical expert can give only a
recommendation. The decision as to what to do with the results of the report and how to
conduct the proceedings belongs to the court. The expert physician can, for example,
suggest to the presiding judge that the trial be conducted in a particularly careful fashion,
with extended breaks, or he can also propose limits on the daily or weekly duration of the
proceedings to accommodate the defendant's illness (3, 8). The principal proceedings can
take place in the presence of a specialist with experience in the relevant medical discipline.
In choosing among these possibilities, the expert must consider the expected duration of the
trial, the degree of intellectual difficulty of the criminal law involved, and the severity of the
health risks (9, 24, 25).
Somatic and psychiatric factors can influence each other in the course of the principal
proceedings, in particular because the defendant's subjective preparedness for the proceedings
is often limited. Should states of acute anxiety or agitation arise, a calming conversation or
the recommendation of a recess in the proceedings generally suffice to overcome the party's
short-term unfitness to stand trial (7).
Fitness to appear in court
Fitness to appear in court, in the sense of fitness to travel, denotes a person's capacity to travel,
either alone or accompanied, to the place where he is to be interrogated or is to appear in
court (7). A person is fit to appear in court if he is not prevented by illness, exhaustion, or
infirmity from appearing at the place named in the summons (9).
Unfitness to appear in court, which is most often temporary, is roughly akin to unfitness
to work under the RVO (Reichsversicherungsordnung, Imperial Insurance Law), and has
nothing to do with fitness to stand trial, to enter into contracts, or to be found guilty. Areas
of overlap are hardly imaginable, rare exceptions notwithstanding (9). Should the journey
to the site given in the summons be something that cannot be asked of the party who is to
be, and who is capable of being, interrogated or tried, because the journey would, for example,
pose a risk to that party's health or convalescence, or would otherwise be an unjustifiable
imposition, the interrogation or session of principal proceedings can take place somewhere
other than the court building, for example at the defendant's sickbed (§ 223 I StPO) (25).
A distinct and separate concept is that of the fitness to be transported. This is the capacity to
be brought to the site of the summons by a means of transportation (for example, by
ambulance). Here, too, expert determinations on fitness to appear in court or to be transported
may be linked to certain terms (a limit on daily travel time), certain means of transportation
(ambulances, for example), or other medically indicated conditions (transportation
permitting the patient to remain reclining, accompaniment by a physician) (25).
Conflict of Interest Statement
The authors declare that no conflict of interest exists according to the guidelines of the International Committee of Medical
Journal Editors.
Manuscript received on 6 February 2007, final version accepted on 23 July 2007.
Translated from the original German by Matthew D. Gaskins.
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Corresponding author
Prof. Dr. med. Markus Alexander Rothschild
Institut für Rechtsmedizin
Klinikum der Universität zu Köln
Melatengürtel 60–62
50823 Köln, Germany
rechtsmedizin@uk-koeln.de
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