Credibility on Trial

Untoward Words at Law

Manslaughter trials are intricate, terrible things, charged with emotion and ruled by the unrelenting logic of the law. The precision with which probative evidence is accepted or rejected can determine not only the verdict but also the possibility of being granted leave to appeal that verdict and the sentence imposed. Everything hinges on credibility – in the eyes of the law and in the minds of the jury. But less informative evidence, what you might call the background of each case, is scrutinised less thoroughly.

In determining the mental state of a manslaughter suspect, psychiatrist or psychologist reports are generally used to buttress more substantial evidence in one way or another. They’re not necessarily subjected to the rigours of cross examination, at least in their entirety. But what if there’s something wrong with one of those reports? Not overwhelmingly wrong, just somewhat untoward?

Consider the case of Chan Ka Fai, who killed his mother in Hong Kong earlier this year. At trial he pleaded not guilty to murder but guilty to manslaughter on the ground of diminished responsibility. Following the offence he had tried to kill himself, and when finally judged fit to explain his actions various psychiatric reports and a psychologist’s report indicated that he was suffering from avoidant personality disorder. He was duly found guilty of manslaughter and sentenced to eight years in prison.

The defendant later applied to the Court of Appeal for a reduction of his sentence. In summarising the man’s mental state at the time of his offence, the Vice-President of that court extracted the following passage on avoidant personality disorder from the psychologist’s report that had been submitted to the original trial:

‘It is a personality disorder characterised by a pervasive pattern of social inhibition, feelings of inadequacy, extreme sensitivity to negative evaluation and avoidance of social interaction. People with avoidant personality disorders often consider themselves to be socially inept or personally unappealing and avoid social interaction for fear of being ridiculed, humiliated or disliked. They typically present themselves as loners.’

It’s important to note now, and the significance of this will be apparent soon, that the Vice-President specifically referred to this passage as the psychologist’s description of the disorder.

It would have been extremely difficult, considering the other evidence revealed at the trial, to rule that this condition could not have played a part in the defendant’s decision to kill his mother. He had lost his job but was psychologically unable to communicate the fact and had gambled away an inheritance from his father that was meant to be invested on behalf of the whole family. When his mother discovered the reality of his situation and berated him he lost control.

Whether or not you’re likely to accept this explanation, the Court of First Instance did, and the Court of Appeal saw no problem with the sentence imposed. The defendant did, after all, stab his mother seventeen times.

But that’s not really the end of the story. Did you notice how the psychologist’s description of avoidant personality disorder seemed at little too smooth for transcription from case notes or even extraction from a more formal report? Look back at it – does it seem a little  . . . edited? Consider the shift between the description of the condition’s effect on individuals and the next, more generalised description. That’s the sort of thing you’ll find on official websites and the like – the use of ‘people’ instead of ‘patients’ or ‘subjects’ is a give away. It’s meant for a general readership, maybe the type of person who refers casually to Wikipedia.

Actually, if you look up avoidant personality disorder on Wikipedia you’ll find this as the first paragraph:

Avoidant personality disorder (APD or AvPD)[1] or Anxious personality disorder (APD)[2] is a personality disorder from the DSM handbook, characterized by a pervasive pattern of social inhibition, feelings of inadequacy, extreme sensitivity to negative evaluation and avoidance of social interaction. People with avoidant personality disorder often consider themselves to be socially inept or personally unappealing, and avoid social interaction for fear of being ridiculed, humiliated, rejected or disliked. They typically present themselves as loners and report feeling a sense of alienation from society.

That’s the passage quoted verbatim, formatting and all. Does it seem familiar?  Look back at the first quote again – most of it is lifted from the Wikipedia article. For the record, the changes include truncation of the first sentence, the ‘z’ in “characterized” replaced with an ‘s’, “disorder” pluralised in and a comma removed from the second sentence, “rejected” removed from the second last sentence and half of the last sentence missing. In other words it’s a cropped, slightly adjusted pilfering.

Looking over the discussion page of the Wikipedia article will make it clear that not one of the editors has any experience as a psychologist, which says little for the professionalism of the report’s less-than-forthright author. In fact the commentary carries a fair degree of cynicism about the condition. Some of the commentators mention that the only cases cited in the article’s original version were Shinji Ikari from the Neo-Genesis Evangelion anime series and the White Rabbit from Alice in Wonderland.

Maybe the psychologist used Wikipedia for her report because she was late for a very important date.

There is, or course, no way of proving that this is a case of plagiarism short of reading the full report to check whether it includes a reference to the Wikipedia article somewhere else. But that doesn’t seem very likely given the small and seemingly deliberate changes in the passage as it appeared in the report. Admittedly, Wikipedia is open source, but to use it almost verbatim without accreditation is somewhat damning. In strict legal terms whether or not the report was partly plagiarised means little – the words still explain the defendant’s condition at the time he killed his mother. Yet there is one final consideration that shifts the focus away from the defence case, and what the psychologist ‘contributed’ to it, towards the prosecution.

In preparation for the original trial the prosecution counsel would have been given a bundle of documentary evidence including the report. In other words, the report – with the Wikipedia passage largely intact – would have passed over to the Prosecutions Division of the Department of Justice. Now these people are very skilled at interpreting texts, which is one of the principle tasks of every lawyer. What is law but legislation, precedent and practice directions, all of which are written?

The point is that it should have been very easy for the prosecution to spot an anomaly in the psychologist’s report and reconsider its admissibility, remembering that psychiatrist reports were also available. Just as easy as it would be, say, for an editor and writer with a casual interest in the law but a strict analytical eye for textual transgression.

Ultimately the oversight is merely embarrassing, but it does point to a lack of due diligence that could manifest itself in more substantial ways. It can hardly inspire confidence, and the great shame is that Hong Kong has an outstanding judiciary at the higher levels, populated by the sharpest minds around. The pity is that the Department of Justice obviously can’t always cut the mustard.

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