Insanity and Criminal Responsibility Chapter 7

Rationale for Insanity focus on mental state at the time of the crime a legal compromise to a moral dilemma absence of mens rea Also called mental state at the time of the offense (MSO)

Insanity Standards Wild Beast Standard One of first formalized standards Rex v. Arnold (1724) must be totally deprived of understanding and memory, and not know what he is doing anymore than an infant, brute, or a wild beast

M’Naghten Disease of the mind Did not know what he was doing Focus on nature and quality Did not know what he was doing was wrong Most conservative of the three modern standards widely adopted in the United States Many later added the irresistible impulse test

Product Rule and Durham “an accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect” Most liberal of the modern standards Problems with the rule Assumed universal constructs of “mental disease/defect” Difficult to determine whether the criminal act was the product of a mental disease/defect

ALI Rule and Brawner “at the time of such conduct, as a result of a mental disease or defect, (lacks) substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform to his conduct to the requirement of the law” Volitional, affective, and cognitive elements Compromise between M’Naghten and Durham

Insanity Defense Reform Act (1984) IDRA Federal law passed in reaction to shooting of President Regan and associates removed the volitional prong of ALI barred ultimate issue testimony placed the burden of proof on the defendant standard of proof became clear and convincing evidence

Guilty But Mentally Ill (GBMI) originated as an additional option Defendant may be found GBMI if guilty of the offense mentally ill at the time of the offense not legally insane at the time of the offense GBMI defendant was to receive identical sentence as someone found guilty, but begin sentence in hospital In reality, GBMI defendants receive more strict supervision upon release and do not receive proper mental health treatment

Challenges to the Insanity Defense Four states have abolished the insanity defense Clark v. Arizona (2006) Arizona did not wish to include a cognitive element in its insanity standard Court ruled that Arizona’s definition of insanity, no matter how narrowly defined, was appropriate There continues to be no constitutional requirement for an insanity standard

Studies Assessing the Insanity Standard in Mock Jurors Varying standards have little impact on juror verdicts Reasons for lack of differences Low comprehension of jury instructions Prior knowledge about insanity Standards may be even more complex than previous standards Lack of deliberation in most prior studies Availability of GBMI option has a significant impact on verdict distribution

Insanity Myths Standard makes a significant difference Frequency of the defense Severity of mental illness Severity of crime Disposition of insanity acquittals Danger of acquittees

Evaluations of Insanity One of most difficult assessments in forensics Legal doctrine is often unclear Focus is retrospective Greater reliance on third party information No universally accepted interviews or psychological tests

Common procedures for Insanity Evaluations Interview, forensic related instruments, and collateral information Borum & Grisso (1996) survey identified central elements Psychiatric history Current mental status Formal mental status exam Any psychotropic medication Psychological testing Mental health records Police information Prior diagnosis Any alcohol or substance use Defendant’s description of the offense Collateral description of the offense

Reliability and Validity of Insanity Evaluations A great deal of agreement among mental health professionals about decisions Individual factors may introduce bias though Studies examining validity of insanity decisions are rare and difficult to conduct but suggest respectable results Hard to study validity of Insanity measures because there is no “gold standard”

Forensic Specific Measures Mental State at the Time of the Offense Screening Evaluation (MSE) Semi-structured measure to assess issues related to criminal responsibility (i.e. insanity) Lack of research on instrument Rogers Criminal Responsibility Assessment Scales (RCRAS) 30-item measure divided into 5 components Recommended for use with ALI and M’Naghten standards Criticized for interrater reliability, emphasis on ultimate issue, quantification of judgment better than any alternative

Malingering and Insanity Threat to malingering appears significant given the stakes in insanity cases Lack of evidence to suggest rates are higher than other forensic areas Many measures exist for the assessment of malingering in these cases Some say that failure to use a standard measure does not fulfill Daubert criteria

Other Issues of Criminal Responsibility Automatism Some criminal acts may occur involuntarily Diminished capacity Testimony regarding mental status at the time of the crime without claiming insanity Intoxication Can’t be the basis for insanity but can be used to can be a basis for insufficient mens rea