The use of expert testimony in the Behring Brevik Case

On 22nd July 2011 Anders Behring Breivik blew up a van filled with explosives near the central government buildings in downtown Oslo and he then proceeded to massacre attendees of the Social Democratic Party’s youth camp at Utøya. In total 77 people were killed and 150 seriously injured as a result of his actions. Breivik was apprehended the same day as the attacks occurred and immediately confessed.

Shortly after he was apprehended, Breivik was put under psychiatric evaluation which concluded that he was psychotic both at the time of the acts and during the observation. In accordance with Norwegian law he was therefore not criminally responsible for his actions.

This conclusion caused outrage. In the media there seemed to be consensus that a person who plans and executes such an intricate series of events must be aware and in control of the consequences of his actions and therefore criminally responsible. This indignation was shared by Breivik himself, who through his lawyers expressed the view that the conclusion was an attempt to diminish his political project. There were widespread calls for another psychiatric evaluation but these calls were met with little enthusiasm from the legal community. Several prominent legal scholars and lawyers, among them the Attorney General, expressed the view that subsequent reports would be of little use, since the first report would dictate the conclusion in the question of criminal responsibility on account of the reasonable doubt doctrine.

Nevertheless the municipal court ordered another evaluation with new psychiatrists of the defendant. They came to the opposite conclusion, that Breivik was not psychotic at the time of the acts or during the observation and believed the defendant merely suffered from a dissocial and narcissistic personality disorder. According to Norwegian law such a diagnosis is compatible with criminal responsibility.

The municipal court had to reconcile two conflicting psychiatric evaluations, in what the legal community considered a foregone conclusion. In its judgment the court pointed to several shortcomings in the initial report and stated that in light of the second report it was proven beyond a reasonable doubt that the defendant was not psychotic at the time the crimes were committed.

The judgment was widely praised by the media and was not appealed.  Although an appeal could have contributed to the clarification of important issues of criminal procedure, the case sparked a wider debate on how expert evidence is used in Norwegian court rooms. Issues such as what constitutes expertise, what scientific methodology may be used and how such testimony should count as evidence, may find a resolution because of the wider debate surrounding the Breivik case.

An English translation of the judgment is available here.

                                                                                                                                                                            Bård Tuseth