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Abstract

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of expert testimony. I think all judges would prefer to act only on the basis of expert information, but, as a practical matter, we cannot. The experts are not available at the courthouse and we have no choice but to use our own training and experience by default. The second issue, if judicial training is to compensate for an absence of expert evidence, is what type and amount of training and education should be required to achieve competency in this role. Required knowledge should probably include characteristics of mental disorders, the dynamics of substance abuse and domestic violence, an overview of treatment methods, and the applicability of various therapies. This list is not exhaustive. Of course, we also need to identify those areas where an expert remains essential and where we should refuse to act on our own. The education we receive should be common to all members of the judiciary. Moreover, those appearing before the court should be informed both of the extent of our education and how we will use that education in deciding their cases. We must also remain aware that approaches can change. The information judges receive must be updated regularly. The third issue raised by the increased role judges are playing in making mental health decisions is the lack of data measuring the efficacy of judicial intervention, as well as the efficacy of the alternative programs to which defendants are being sentenced. In addition to increased judicial education, courts need to evaluate particular therapeutic programs to determine whether they in fact work. As it currently stands, we make judgments without much feedback. We need reliable data, not anecdotal evidence, when deciding whether to send a defendant to an anger management program, to counseling, or to jail; whether to impose conditions on parent/child contact; or whether to include counseling in a protection from abuse order.

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