LECTURE

The Summary Mental Examination in Criminal Proceedings
Chusuke Nishio

Department of Neuropsychiatry, Keio University School of Medicine, Tokyo, Japan(Received for publication on April 13, 2010)(Revised for publication on October 20, 2010)(Accepted for publication on November 25, 2010)

This article discusses the inception (in 1955) and history of the inclusion of the summary mental examination in criminal proceedings. It then reviews the procedures for diagnosing easily
diagnosed cases such as frank psychosis or obvious mental normality. An overview is then provided of the manner in which the reliability of the summary examination can be maintained bydeeming those cases where diagnosis can be made without the use of suggestive questions as“easily diagnosed cases” and by avoiding positively diagnosing obvious mental normality. The
importance of ensuring that test proceedings in summary examinations do not interfere withformal forensic psychiatric examinations that may be conducted later is then reviewed. These
proceedings, through the summary examination, provide material for an expert to state an
opinion in court as to the criminal responsibility of the accused suspect. (Keio J Med 60 (1) : 22
－26, March 2011)

Keywords: forensic psychiatry, easily diagnosed cases, frank psychosis, obvious mental normality,
suggestive questions

In general, people mistakenly assume that there are no
major differences between the diagnostic techniques required for a psychiatric examination and the techniques
used in normal clinical settings. As a result, there are virtually no reference materials that meet the reliability requirements for such evaluations. On the other hand, it
has been difficult to make such materials public because
doing so could provide particular groups (for example,
criminal organizations) with knowledge they could use
to feign illness in order to avoid criminal charges. That
is why the author, despite having more than 50 years ofexperience, hesitated to publish these materials in an article.
The diagnostic techniques of clinical psychiatry, likesome types of traditional performing arts, are best communicated through direct transmission. However, giventhat opportunities for direct transmission are extremely
limited, the next most effective method of communication would be to provide detailed written descriptions of
the techniques used. Unless preserved in some form,
necessary knowledge and experience cannot be shared.
With this in mind, the author made the decision to sum-

marize and put down in writing his experience to date.
On May 1, 1950, the Mental Health Act went into effect in Japan. According to Article 25 of that Act, “A
prosecutor in executing their duty will give notice to theprefectural governor of mentally ill persons or of suspects or defendants suspected of being mentally ill.”
From 1952, narcotic addiction and amphetamine abuse
became prevalent, and rapidly increasing numbers ofsubjects addicted to these substances were sent to prosecutors. To quickly process these chronic addiction casesin accordance with Article 25 of the Mental Health Act,the Tokyo District Public Prosecutor’s Office, in consultation with the Tokyo Metropolitan Bureau of the Public
Health Medical Department, established the Summary
Mental Examination (kan-i kantei) Section, where an assigned forensic mental health examining physician from
the Medical Department would be allowed to conduct an
examination to determine whether prosecutor notification under Article 25 of the law was necessary. This procedure went into effect on January 11, 1955, and the author was assigned to be one of these examiners.
Soon after the establishment of the Summary Mental

Reprint requests to: Chusuke Nishio, MD, Department of Neuropsychiatry, Keio University School of Medicine, 35 Shinanomachi, Shinjuku-ku, Tokyo
160-8582, Japan, E-mail: takaki@xa3.so-net.ne.jp
Copyright © 2011 by The Keio Journal of Medicine
22Keio J Med 2011; 60 (1): 22－26

Examination Section, a gradual decline in cases ofchronic addiction was seen, and, at the request of prosecutors, processing of subjects was expanded beyond subjects with chronic addictions. Thus, accused persons suspected of having a general mental disability also became
subject to examination. The examinations were conducted by physicians who contracted with the Tokyo District
Public Prosecutors Office. The practice of entrusting thiswork to persons affiliated with the Department of Neuropsychiatry of Keio University has continued to the present day. Similar procedures are in place in Scandinavian
countries.1
There is some argument about the contents of the summary mental examination.2 In 2004 the Japanese Societyof Psychiatry and Neurology presented a Model Form of
the summary mental examination. However, there is noargument about the methodology of the examination.
The author performed more than 2,000 summary examinations during the years 1955 to 2010 at the Tokyo
District Public Prosecutor’s Office. Based on the author’s
55 years of experience, the methodology of the summary
examination is presented; it differs completely from theclinical psychiatric interview involving a psychotherapeutic element.
The stage of the forensic psychiatric examination being conducted in criminal proceedings is presented asfollows:
Stage 1. In order to confirm the existence of criminal
responsibility for suspects with a suspected mental disorder, the prosecutor charges a psychiatric expert with performing a forensic psychiatric pretrial examination:(1) based on approval for the examination from the district court, or(2) based on consent to undergo the examination fromsuspects themselves.
Item (2) is called “the summary mental examination”
and is the subject of this article.
Stage 2. In order to confirm the existence of criminal
responsibility for the accused because of their suspected
mental disorder, the judge orders a forensic psychiatricexamination and charges a psychiatric expert with performing the forensic psychiatric examination.
In Scandinavian countries, the judge may order a summary mental examination, including both stages presented above (because of one of the escape mechanisms
from the tyranny of the McNaughton Rules, on an accused who is of “frank psychosis” or of “obvious mental
normality”.1
A “formal forensic psychiatric examination” means the
pretrial examination of stage 1 item (1) and the examination of stage 2.
General Remarks on the Methodology
A summary examination is defined as follows:(1) No approval has been given for the examination from23

the District Court [Code of Criminal Procedure, Article 225].
(2) The existence of facts constituting a crime is based
solely on the judgment of the prosecutor.
(3) The time available for examining the suspect is limited, i.e., 1 to 2 hours.
(4) Materials are limited to the records of the investigation as at the time of the examination only, and to theappearance of the suspect and the content of statements made by the suspect.
The following is the recommended procedure for asummary examination based on the author’s experience.
During the summary examination, the expert should befully aware of the following, as shown in the Source ofErrors in Forensic Mental Examination3:(1) obtaining superficial anamnesis,(2) poor skill in diagnosis,(3) lack of knowledge in making a differential diagnosis,(4) adherence to an earlier diagnosis,(5) confusing interpretation of findings,(6) ill-advised deductions and conclusions (i.e., diagnosis at a glance),(7) succumbing to prejudice (emotional or principled
bias, or overconfidence in the examination or negligence due to expertise).
The summary examination is expected to be useful for
diagnosing frank psychosis or obvious mental normality,1 and the matters that the prosecutor wants the expert
to clarify are as follows: Is it possible to indict the suspect? If it is not possible to prosecute, then is it necessary to give notice under Article 25 of the Mental Healthand Welfare Act or to file a petition under Article 33 of
the Medical Treatment and Supervision Act?
The prosecutor will use the summary examination as
the basis for making such decisions, and the expert will
perform a diagnosis to determine whether the suspect isin a condition of frank psychosis at the present time, andwhether or not the suspect was in such a condition when
the crime was committed. In other words, the point of
the summary examination is not to positively diagnosis
the subject’s “obvious mental normality.” As Hoche described, “One minute is often adequate for confirming a
psychosis. However, even several weeks of close observation may be inadequate to prove that someone is not
suffering from psychosis.”4
Conducting the Summary Examination
Matters to be attended to with regard the examination interview are as follows:(1) Do not refer to any disease name or symptom ofmental disorders (terminology) as used by experts. If
the suspect brings up some names, do not initiate a
discussion about them and ignore them at this point.
(2) Never use a suggestive question.
(3) Do not persist in following a single topic. The pur-24

pose of this examination is to avoid letting the suspect conjecture or predict what is of interest to theexaminer (i.e., obtaining a finding of psychosis fromthe suspect).
These three items not only ensure that the reliability ofthe summary examination is maintained, but also ensure
there will be no obstacle to a formal forensic psychiatricexamination conducted at a later date. The following
items are examined in the summary examination.
Describe the suspect’s appearance
Describe, for example, the suspect’s facial expression,
attitude, movement, and manner of speech. The suspect
is in a psychological state burdened by the stress of being in prison. In addition, the suspect is in the position of
being brought before someone who appears to them tobe a physician on the side of the prosecutor. This situation should elicit some psychological effect on the partof the suspect, and this effect should be expressed outwardly.
During the interval from the point when the suspect,accompanied by the escorting police officer, appears in
the examining room until the examination is complete
and the suspect leaves, the behaviors shown at each moment are recorded as they occur. These records will be
written up when an expert opinion is generated.
The interview
Stage 1
The technique for the interview is based on Kretschmer5
and Jaspers.6 Kretschmer concretely presents the categories non-suggestive and suggestive questions in thechapter on the mental examination. In the chapter on the
judgment of the examination results, Jaspers states that
we have always to consider whether the statements ofthe patient are real and reliable. He allows, on the one
hand, the use of the suggestive question with the warning that it is a dangerous instrument; on the other hand,
he requires the heavy work of eliminating the morass ofuseless, needless, indifferent things in the history of thepatient.
This history should include several items, beginningwith the following: Have the suspect discuss topics that
he would be expected to know about, and that, moreover, are also known to the examiner or are self-evident.
To determine if the suspect has made erroneous or false
statements,5, 6 he should be asked to describe his awareness of his present state.
Show the suspect the consent form for the examination, and say:
• Do you understand that you were referred for this examination by the prosecutor?
• Did you write the name on this paper yourself? How is
it pronounced?

Nishio C: Summary Mental Examination in Criminal Proceedings• Did the prosecutor tell you why he wanted you to be
examined?
• Did you understand the rationale for the prosecutor’s
decision to have you examined?
• When the inspector told you that you had to be examined, what thoughts went through your mind?
• When were you told about this examination? About
how many days ago?
• What month and what day of the month is it today?
• In jail, how do you keep track of the date?
• At what police station are you being held?
• On the way here from the police station, did you see
any buildings or places that you recognized? Do you
know the name of this building? How many times haveyou been here since you were arrested?
• Have you ever been here before you were arrested thistime?
• Has anyone come to visit you at the police station?
What did you talk about?
• How many people are with you in your jail cell? Do
you talk among yourselves?
• Is there anyone there you dislike? Do you find it inconvenient?
• What do you think about when you are in jail? Tell me
about how you spend a typical day in jail.
Stage 2In the second part of the interview, subjects should talkabout their life history and the way they live. Not only
the content but also the manner in which they talk about
the following themes should be noted:(1) The course of their life, e.g., constancy, job changes,
divorce, and the so-called “bending point” of theirlife development,5(2) Productive life, parasitical living, homeless lifestyle,and long-range plans for life,7, 8(3) Holding back dishonorable history, palliation,4 andambiguous or inconsistent reasoning.9
Stage 3
Have suspects talk about their history of consulting
psychiatrists. If there is no history of consulting psychiatrists, then gently bring up the explanation given by thesuspects themselves as to why the prosecutor sought theexamination, or point out areas where there was agitation or something unnatural9 in the suspect’s manner of
speaking in Stages 1 or 2. Then have the suspect givefurther explanation regarding the following points:(1) History of consulting psychiatrists, occasion of thefirst consultation, a description of what the first experience was like.
(2) If the suspect has been given a diagnosis, or has described their psychotic condition with psychiatric terminology, do not directly open a discussion with thesuspect using that terminology.
(3) Have the suspect talk about the circumstances sur-

Keio J Med 2011; 60 (1): 22－26

rounding incidences mentioned in (1) as follows:• Did you go to the hospital alone? Did you go withsomeone else?
• Were you taken there even though you did not want
to go? Who accompanied you?
• What was your condition when you first came under
the care of a doctor? What is your condition thesedays?
(4) Have the suspect talk using the medical terminology
mentioned in (2) as follows:• Regarding the term _______ that you mentioned earlier, if you were speaking to an elementary schoolaged child, how would you describe the way that
this condition makes you feel?
• Regarding the experience of psychomotor excitement or psychomotor inhibition: How did you spend
your time over the course of a day when you wereexperiencing this or feeling this way? What did you
do as a countermeasure? What did you think about?
What about work? What about daily life? Whatabout your life going forward?
In a case of frank psychosis, something psychosis-likewill have already been revealed in the visual inspectionof appearance and in the incoherence of the story up
through Stage 2. In Stage 3, a sense of the diagnosis
should become evident. Even if an examiner cannot
reach the point of being able to reject a previous diagnosis, grounds for doubting a previous diagnosis should be
evident (see The Source of Errors in Psychiatric Examinations, sections 1 and 4). A designated mental healthphysician with experience in following the examination
procedures under Article 27 of the Mental Health andWelfare Act should be capable of understanding this situation.
Stage 4
Have subjects talk about matters relating to their psychological state at the time when the crime was committed. The issue of the crime is always raised from thestandpoint of clarifying motivations that may cast doubt
on the mental health of the criminal, and is not to be taken as proof of illness. 1 0 For example, present the suspects with a record of the facts of the crime that havebeen clarified in the investigation phase, and have themread the record. When the subject has finished reading,ask the following:• Did you read it? It only refers to the person as the suspect.
• Do you know who the suspect is?
• Did the events take place as they are described here?
There are four types of replies to the third question: affirmative, negative, partially negative, and pleas of nonrecollection.7 In the case of negative and partially negative replies, say the following to the suspect: “Okay, why
don’t I write down here what you want to say, and then
we’ll have the prosecutor read it.” Then get the suspect

25

to agree by recording their statements under their scrutiny. The purpose of presenting a record of the facts of thecrime to the suspect and having them talk about the incident is as follows: to check whether the suspects had any
serious impairment in consciousness at the time of thecrime or whether they had criminal intent, and to havethe suspect talk about whether the genesis of criminal intent stemmed from psychosis.
In the event that the subject responded in the negative
to the third question, follow with these questions:• What was it like when you were arrested?
• Did the police show you an arrest warrant?
• What did it say?
• What did the lawyer say about this?
If the suspect states a falsehood, it should be noted as“incoherence” or unreasonable “fixing of the story.”
Sometimes the examiner can be summoned as a witness to explain their written statement of the examination. The court expects the examiner to state an opinion
with regard to the normative standard of criminal responsibility. Therefore, the examiner will state to thecourt “whether or not the suspect was capable of making
another choice, whether the suspect should or could nothave taken some other course of action” at the time of
the crime.7 The examiner should obtain necessary material pertaining to the expectations of the court. Therefore, the examiner should ask the following:• If you think back on it now, why do you suppose you
did such a thing?
• Can you think of anything that you could have done
beforehand that would have made it possible to get outof the situation without it coming to this?
• Was there another way of handling it?
Stage 5This stage entails a physical examination. Check forextraordinary findings on the body surface and for any
easily recognizable neurologic findings. These include
external scars, surgical scars, self-inflicted wounds, finger-cutting, injection sites along the cubital vein, tattoos(criminogenic signs). In addition, have the subject read
numbers of around five digits in length and then performa successive subtraction problem [100 – 13 = __ ]. Next,
have the subject talk about the history of any extraordinary findings on the body surface that were previously
noted.
Diagnosis
Extract any meaningful or valuable observations fromthe materials obtained in the foregoing examination andmake a diagnosis. This work relies entirely on the examiner’s judgment. Items 2, 3, and 5 from the Source of Errors in Forensic Mental Examinations are supposed to
implicitly affect the examiners judgment. In court, when
I have been accused of misdiagnosis, the only basis for26

Nishio C: Summary Mental Examination in Criminal Proceedings

my defense is that I did not use suggestive questions.5, 6
There are four types of diagnostic results:
1. Frank psychosis.
2. No clear psychosis (including other severe mental deviations).
3. Psychosis in remission.
4. Suspected psychosis.
Items 3 and 4 represent diagnoses falling between diagnoses 1 and 2. The diagnosis of “no clear psychosis”
results from a process of elimination by being unable to
make a diagnosis of 1, 3, or 4. It is not a case of having
positively diagnosed “obvious mental normality.” 4 It is
important to note that epilepsy and related conditions, aswell as pathological drunkenness, cannot be diagnosed
in a summary examination. In addition, there are instances in which it is extremely difficult to diagnose malingering or a subject pretending to be mentally normal.
Judging Criminal Responsibility
The basic rule for judging criminal responsibility isclearly set forth in an article of the German criminal
code. Based on the structure of the article, judgment ofcriminal responsibility is to be made in two stages:• Stage 1: Mental standard (reference framework for
medicine).
• Stage 2: Normative standard (reference framework forjurisprudence).
As a rule, however, the normative standard is outside
the field of empirical science. 7 Taking the normative
condition into account, the examiner must make a judgment regarding criminal responsibility using the following as a background:(1) The “prototype” for the lack of criminal responsibility, i.e., was the act done in an acute state of psychosis
and with psychotic motivation.11(2) Convention.
(3) The structural social concept of disease.7
Handling the Results of the Summary Examination
The results gained by the procedure described above
are as follows:(1) Frank psychosis: lack of criminal responsibility or
diminished criminal responsibility.
(2) No clear psychosis: criminally responsible.

(3) Psychosis but in remission: criminally responsible ordiminished criminal responsibility.
(4) Suspected psychosis: cannot judge.
These lead to the following outcomes:(1) Lack of criminal responsibility: no prosecution.
Notification under Article 25 of the Mental Health Act
and filing of a petition under Article 33 of the Medical
Treatment and Supervision Act are required.
(2) Criminally responsible: Prosecution. No notificationor filing of a petition.
(3) Diminished criminal responsibility: Prosecution. If
no prosecution, then it is necessary to make notification and to file a petition.
It is thought to be excessive to seek a judgment of thesuspect’s risk prognosis that is more rigorous than the
judgment regarding a standard of danger of injury to self
or others proposed by the Mental Health Act (the standard set forth by the Health Minister based on the provision of Article 28 (2) of the Act on Mental Health andWelfare for the Mentally Disabled) in the summary examination.
References
1. Rylander G: Forensic psychiatry in relation to legislation in different countries. In: Psychiatrie der Gegenward, Band III. SpringerVerlag, 1961; s.414.
2. Aoki N: Various problems regarding Pretrial Psychiatric Examinations. The Laws and Psychiatric Treatment 1993; 6: 56–76.
3. Gunter H: Fehrquellen forensisch-psychiatrischer Gutachten.
Kriminalistik Verlag, Heidelberg, 1982.
4. Hoche A: Handbuch der Gerichtlichen Psychiatrie, 3 Aufl.
Springer-Verlag, 1934; s.137.
5. Kretschmer E: Medizinische Psychologie. Georg Thieme Verlag,
Stuttgart, 1950; s.250.
6. Jaspers K: Allgemeine Psychopathologie, 9. Aufl. Springer-Verlag, 1973; s.689.
7. Rasch W: Forensische Psychiatrie, 2. Aufl. Verlag W. Kohlhammer, 1999; s.50, 365.
8. Ullrich M, Paelecke I, Marneros A: Kategoriale und dimensionale
Erfassung von “psychopathy” bei deutschen Straftaetern. Nervenarzt 2003; 74: 1002–1008.
9. Mezger E: Das Verstehen als Grundlage der Zurechnung; Sitzungsberichte der Bayerischen Akademie der wissenscaften, philosophisch-historischen Klasse, Jg. 1951, Heft 1; s.28.
10. Rauch HJ: Ueber die Zurechnungsfaehigkeit der weitgehend geheilten Psychosen. Nervenarzt 1952; 23: 294.
11. Kroeber HL: Konzepte zur Beurteilung der “schweren anderenseelischen Abartigkeit”. Nervenarzt 1955; 66: 532–541.