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In Japan, forensic psychiatrists are generally reluctant to detect malingering. This trend may have led to the present state whereby studies on malingering are very scarce. The fundamental problem here is that we have no concept that malingering must be proved and no methodology to actually prove it. The author has presented procedures which prove that a defendant who has been regarded as showing prison psychosis is malingering. First of all, it is important to specify certain feigned symptoms as much as possible by making full use of exploratory questions which include using techniques involving changing the condition of dialogue. It is also decisive to reinforce the former (observational data based on exploration) by examining collateral information carefully. This procedure has made it possible to verify that most psychotic symptoms are a feigned psychopathology. It is certain that an external incentive (evading criminal prosecution) exists. Moreover, there is no mental disease which could produce such psychotic symptoms. As these factors are acknowledged, it enables us to conclude whether a defendant shows malingering. On the other hand, pseudologia phantastica has been regarded as exclusively characterogenic. However the possibility that it could be a reaction to circumstances has been pointed out but has regrettably gone unnoticed. Plausible statements about the early personal histories of defendants and most psychotic symptoms after detention are fabricated stories which are phantastic and, moreover, defensive concerning the external incentive mentioned above. Therefore, from another point of view, it could be said that narratives of defendants can be classified as a reactive type of pseudologia phantastica.

The author demonstrates that Japan's Medical Treatment and Supervision Act of 2005 is meaningless and harmful from the perspective of psychiatric treatment, and worthless in terms of enhancing public safety. He goes on to propose a step-by-step process for reforming both the practice of psychiatry in general and that branch of the justice system that deals with defendants who have psychiatric disorders. The author suggests that the cost of reforms can be offset by abolishing the law in question and reducing the number of psychiatric hospital beds, and argues that it is possible to immediately halve the number of those beds. The author emphasizes that, while it is possible to immediately abolish the law, there will be anxiety associated with the progression of reforms.

In this article, psychiatric arguments regarding criminal responsibility in schizophrenia are reviewed, and it is pointed out that the arguments have been influenced by the theory of process psychosis. Moreover, two cases judged on the basis of the activation-recurrence phenomenon are exemplified, and fundamental issues are discussed. Investigating the mental state just before the crime helps when deliberating over criminal responsibility. A study of the activation-recurrence phenomenon, conducted by Shinkai and Miyasaka, contributes toward clarifying the recurrence of the micropsychotic state during the criminal act. Generally, schizophrenia is characterized by an alternation between the micropsychotic and basic normal states, and classified clinically into severe, moderate, and mild according to the level of susceptibility to the occurrence of the activation-recurrence phenomenon. Differentiating between the form and contents of the micropsychotic state is of marked importance in schizophrenia. In addition, identifying the form facilitates the distinction between behaviors while sane and those during schizophrenic episodes. Practically, the activating stimuli, which are likely to trigger the micropsychotic state, are applied in the interview to establish the psychiatric testimony based upon the activation-recurrence phenomenon. After the diagnosis of schizophrenia has been confirmed, the examinee is exposed to the stimuli possibly activating the micropsychotic state during the criminal act. Observing the recurrence of the micropsychotic state and its frequency enables estimation of the susceptibility to the occurrence of the activation-recurrence phenomenon and the mental state during the criminal act. Therefore, if a micropsychotic state during the criminal act can be confirmed, the inability to be held legally responsible is postulated. In contrast, if a micropsychotic state during the criminal act cannot be confirmed, the specialist giving the psychiatric testimony should conclude that the crime was most likely undertaken while sane, taking into account the objective circumstantial evidence and the suspect's coherent actions during the crime. Furthermore, in this article, the concept Trugerinnerung, which is a subjective abnormal experience confusing the present and past (a disorganization of memory) is revaluated, and the possibility of concluding that the criminal act was performed with a normal psychology is discussed.

In Japan, few discuss the issues concerning competency to stand trial in criminal cases. The author investigated 24 verdicts of Japanese courts addressing this issue. The definition of such competency by the Supreme Court is not sufficiently explicit. Some verdicts have held defendants incompetent for their lack of ability to: communicate; comprehend their situation; understand the details and ramifications of acts of litigation; or comprehend the abstract concept of their right to silence/right against self-incrimination. Others found that the accused had life skills and understood the issues surrounding the lawsuit in both practical and general terms, making the person competent to stand trial. The author examined how the cases were dealt with when the defendants were found incompetent--whether they were suspended or dismissed; how and where defendants were treated psychiatrically--; what was done when the accused dismissed the appeal in a capital case, was suffering from mental disorder induced by detainment; as well as how competency should be regarded before charges are brought, when the transcript of indictment is sent, at the appellate court level, etc. The author also introduced some assessment tools used for assessing competency to stand trial in the United States.

There had been argument concerning the difference between the agnostic approach and the gnostic approach to the psychiatric perspective of criminal responsibility until the landmark ruling by the 3rd court of the Japanese Supreme Court in 1984. The decision upheld the gnostic approach and affirmed that the defendant's criminal responsibility should be based on such factors as psychopathology, motive, modus operandi, situation surrounding the crime, and pre-morbid personality, as long as the offense was not directly motivated by the delusion or hallucination. The gnostic explanation includes so many various factors that the psychiatric testimony cannot easily be objective, while agnostic experts can find a conclusion about criminal responsibility only by psychiatric diagnosis. To establish a standard, the authors summarized the means of determination of criminal responsibility. The authors also discussed various topics related to criminal responsibility including Asperger's syndrome, illicit drug intoxication, and prescribed drug intoxication.

The authors conducted questionnaire surveys utilizing model cases with the aim of investigating the current views of psychiatrists regarding criminal responsibility judgments in forensic psychiatric evaluations. Six model cases-injury by a person with acute schizophrenia, indecent assault by a person with chronic schizophrenia, attempted murder by a woman with depression, arson by an alcohol abuser, burglary by an amphetamine abuser, rape and indecent assault by a person with personality disorder-were presented to 345 psychiatrists, who were asked about criminal responsibility and appropriate treatment for each of the cases. One hundred eighty-five of the psychiatrists responded. In the case of acute schizophrenia with hallucination and delusion, the case of severe depression, and the personality disorder case, there was a high level of agreement between the evaluations of criminal responsibility made by the different respondents, but in the case of chronic schizophrenia, the case of alcohol-induced psychotic disorder, and the case of amphetamine abuse, there were variations in the evaluation of criminal responsibility, with many respondents emphasizing the patient's symptoms and condition at the time of the offense, and relatively few emphasizing whether the disorder was endogenous. Regarding the form of treatment, many of the respondents recommended compulsory hospitalization for the case of acute schizophrenia with hallucination and delusion, while at the same time recommending treatment in a prison environment for the personality disorder case. In contrast, for the case of chronic schizophrenia and the case of alcohol-induced psychotic disorder, opinion was divided as to whether the subject should be handled with a medical or a judicial approach. Regarding treatment for the case of alcohol-induced psychotic disorder and the case of amphetamine abuse, there was a tendency to make a judgment based on the subject's condition at the point of psychiatric evaluation, which was not necessarily linked to the criminal responsibility.

Many medical organizations have passed resolutions banning participation of psychiatrists in legal executions, such as the Madrid Declaration of World Psychiatric Association. The Criminal Procedure Act of Japan prohibits the execution of the insane. Although the USA and Japan are both among the few so-called developed countries that have a system of capital punishment, many disputes about psychiatrists' participation in death penalty cases have occurred in the US, but few in Japan. This author has reviewed papers addressing this issue. The U.S. Supreme Court decided in Ford v. Wainwright that the execution of an "insane" inmate was not constitutional. The rationale for excluding the mentally incompetent from execution, however, is not completely clear. The most compelling reason is that execution does not satisfy the requirement for "effective retribution," since the insane criminal is not capable of understanding the implications of the death penalty. Nonetheless, there are those who dispute this interpretation and offer other explanations. Psychiatrists may be called upon to assess a criminal's competency for execution. Some find no problem with this practice, while others object to it stating that it conflicts with the ethical tenet to "first do no harm." Those who argue from a middle position insist on assessing competency while recognizing the existence of problems in making such an assessment. Furthermore, there is controversy over which factors exactly constitutes "competency to be executed." Usually, it is thought to be one's capacity to understand the nature of the death penalty and the reasons why the penalty is to be inflicted, but other arguments exist, including the capacity to assist legal counsel in last minute appeals. The question of whether to offer treatment to death row inmates who have been found incompetent to be executed is also under debate. The first position argues that they should "never be treated", because such prisoners would be executed when treatment restores competency. The second, always-treat-position, asserts that psychiatrists are responsible for treating severe mental illness whenever possible. The third, intermediate position, insists upon treatment with several conditions, which entail, for example, respecting the prisoner's autonomy and/or selecting forms of treatment that are unlikely to restore competency. When treatment is given, assessment as to whether competency has been restored is then required. This is still a troublesome issue. The decision in Perry v. Louisiana dealt with the question of whether the state may forcibly treat prisoners incompetent for execution. There were reports about ambivalence and anger among the staff of a psychiatric hospital where an inmate found incompetent for execution was treated. More than a few disputes insist that the ethical dilemma can only be resolved by commuting the sentences of incompetent death row prisoners to life imprisonment. This author further asserts that the secretiveness with which the Ministry of Justice of Japan handles these types of cases should be abolished as soon as possible.