History And Principles Of The Insanity Defense

Educational Objectives

The goal of this program is to improve understanding of the history and principles of the insanity defense. After hearing and assimilating this program, the clinician will be better able to:

1. Review and compare historical and contemporary standards for raising an insanity defense.

2. Explain the difference between cognition and volition as these apply to insanity defenses.

3. Summarize the reason for and provisions of the Insanity Defense Reform Act of 1984.

4. Conduct a forensic interview of a defendant claiming insanity at the time of a criminal act.

5. List the circumstances in which intoxication may contribute to an insanity defense.

Summary

Elements of crime: actus reus — refers to “forbidden act,” which must be conscious and voluntary; acts performed in state of somnambulism or automatism do not fulfill requirement for conscious, voluntary act; in such cases, insanity defense need not be raised; automatism rarely used in United States (more common defense elsewhere); diminished capacity — means that mental illness or intoxication precluded capacity to form specific intent of crime; 2 types of specific intent; individual who carries out act may do so purposefully or knowingly; in absence of these elements, diminished capacity does not apply (diminished capacity interferes with specific intent, not general intent); in most jurisdictions, psychiatrists and psychologists may not testify on diminished capacity

Rex v. Arnold (1724): first recorded British case to use insanity defense; ”Mad Ned” Arnold shot Lord Onslow, then raised insanity defense; presiding justice stated that to plead insanity, perpetrator must be totally deprived of understanding and memory, so as not to know what he does any more than infant, brute, or wild beast; case set high standard for insanity defense (called total insanity test or wild beast test)

Rex v. Hadfield (1800): Hadfield developed delusional belief that his death could save all mankind; he believed that suicide would bring damnation but that if state executed him, he would be hero; to prompt state to execute him, Hadfield attempted regicide; Hadfield defended by Lord Erskine, who ridiculed total insanity test and argued that delusion indicated insanity; jury returned verdict of not guilty by reason of insanity; Parliament passed Lunatics Act of 1800 to establish disposition of such defendants (confinement in psychiatric hospital)

Durham rule: man named Oxford tried to assassinate Queen Victoria; he purchased 2 pistols and practiced beforehand; at his trial, jury instructed that if “controlling disease” acted as power that defendant could not resist, Oxford not responsible for act; case first statement of irresistible impulse test or volitional rule

Rex v. McNaughton (1843): McNaughton (also spelled M’Naghten) traveled from Scotland to London in attempt to assassinate head of Tory Party; 7 psychiatrists who served as witnesses at trial (some of whom testified for prosecution) agreed that McNaughton had paranoid schizophrenia and not guilty by reason of insanity; jury returned verdict of not guilty by reason of insanity; other attempted assassinations that resulted in same verdict led to public backlash

McNaughton rule: Queen Victoria asked law lords to reconsider insanity defense; this led to McNaughton rule, which remains in use today; McNaughton rule derived from first appellate case with insanity verdict; rule stated that to establish defense on grounds of insanity, it must be clearly proved that at time of committing act, accused laboring under such defect of reason from disease of mind as to not know nature and quality of act being committed, or not know that act wrong; language mentions whether accused knew difference between right and wrong with respect to specific act, at time of act; previous definitions specified knowing right from wrong abstractly (not applied to specific act)

Summary of McNaughton rule: cognitive rather than volitional rule (based on thinking rather than ability to control oneself); to meet standard, accused must not know nature and quality of act or not know “wrongfulness” of specific act

Standards for McNaughton rule: one issue with McNaughton rule centers on whether standard of wrongfulness refers to legal or moral wrongfulness; 8 states consider moral wrongfulness sufficient; 6 use legal wrongfulness; in most states, jury may apply either standard; forensic psychiatrist should know local standard before testifying; in Canada, moral wrongfulness divided into subjective moral wrongfulness (what individual considers wrong) and objective moral wrongfulness (perpetrator’s belief about how society would view act, or societal standard)

Modern insanity defense: in 1995, John Salvi killed several people in abortion clinics; if Salvi believed that abortion morally wrong, he could not raise successful insanity defense because his belief did not flow from mental illness; however, Salvi had persecutory delusions (he believed that abortion clinics systematically aborting Catholics with goal of eradicating them); insanity defense allowed because Salvi believed killing people in abortion clinics morally right (based on his delusions)

Elements of insanity defense: include threshold of mental disease or defect and wrongfulness standard; 17 states recognize volitional defense (inability to refrain)

Cognition: understanding nature and quality of act sometimes termed cognitive rule or appreciation of criminality

Volition: also called irresistible impulse test, ability to refrain, ability to conform conduct to requirements of law, or ability to “adhere to the right”; “policeman at elbow” test — used to consider whether or not person able to refrain (if policeman at elbow, could perpetrator restrain from committing act); policeman at elbow test difficult to apply because question often asked months after crime, when defendant may no longer be psychotic; also, if defendant perceived police as evil or part of conspiracy, or planned to kill self immediately after committing crime, test does not work

Insanity Defense in United States

Durham rule: State v. Pike in New Hampshire (1869) required jury to decide whether defendant suffering from mental disease or defect and whether criminal act was result of such disease; District of Columbia Circuit Court of Appeals adopted Durham rule in 1954, which applied similar language, but referred to “product” rather than “result” (Durham rule states that accused not criminally responsible if unlawful act product of mental disease or defect); test resulted in 14-fold increase in number of successful insanity defenses in DC

Interpretation of Durham rule: in McDonald v. United States (1962), appellate court defined mental disease or defect to include any abnormal condition of mind that substantially affects mental or emotional processes and substantially impairs behavior controls; definition aimed at allowing jury (not psychiatrists) to assess presence of mental disorder; in Washington v. United States (1967), court found no justification for psychiatrists to decide ultimate issue (they may not speak about whether act product of mental disease)

Insanity Defense Reform Act (IDRA, 1984): held that in federal courts, psychiatrists may not address ultimate issue of whether defendant insane

End of Durham rule: in United States v. Brawner (1972), DC Circuit Court of Appeals abandoned Durham rule as unworkable because of undue dominance by experts, but retained McDonald definition of mental illness and adopted first part of Model Penal Code (MPC) test

MPC test: known both as American Law Institute (ALI) test and MPC test; test adopted by DC Circuit Court of Appeals; MPC test states that person not responsible for criminal conduct if at time of conduct, as result of mental disease, he lacked substantial capacity to appreciate criminality of his conduct or to conform his conduct to requirements of law; second half of test holds that mental disease or defect does not include abnormality manifested only by repeated criminal or otherwise antisocial conduct; however, based on observation that blacks more likely than whites to be diagnosed with antisocial personality disorder, most federal appellate courts did not adopt second half of test because of concerns about racial bias; in simplified form, MPC holds that person not responsible for criminal conduct if person lacks substantial capacity either to appreciate wrongfulness or to conform conduct

Older standards compared with MPC: requirement for lacking substantial capacity allows more liberal interpretation than not knowing wrongfulness; not knowing wrongfulness binary, but substantial capacity permits some judgment; use of word “appreciate” rather than “know” implies meaningful understanding and intelligent comprehension of effects of conduct; MPC softened M’Naghten rule

Insanity Defense Reform Act: enacted after verdict in trial of John Hinckley in attempt to eliminate or narrow insanity defense, discourage release of perpetrators found insane, and modify language on competence to stand trial; act uses standard of severe mental disease because of which defendant unable to appreciate nature and quality or wrongfulness of act; volitional arm eliminated, phrase “lack substantial capacity” removed, and word “severe” added; IDRA currently used in federal courts; 10 states have eliminated volitional arm, but this did not reduce number of successful insanity defenses (80% of jurors ignore charge to jury)

Burden of proof: IDRA states that defendant has burden of proving insanity by clear and convincing evidence (standard intermediate between preponderance of evidence and beyond reasonable doubt); 31 states use preponderance of evidence and 8 use clear and convincing evidence; in 5 states, once burden of producing evidence met, burden shifts to prosecution to prove sanity beyond reasonable doubt; in these states, changing burden of proof (but not eliminating volitional arm) associated with reduction in successful insanity defenses

Comparison of standards: wild beast test strict; M’Naghten less strict, and irresistible impulse even less strict; Durham most liberal test; MPC more strict than Durham but still fairly liberal; after Hinckley case, standards closer to M’Naghten used in most states

Clark v. Arizona (2006): Supreme Court allowed states to remove nature and quality standard and retain only wrongfulness standard; Court did not set federal standard for insanity

States that abolished insanity defense: in Utah (1 of 4 states to abolish insanity defense), mens rea approach used; defense makes claim that as result of mental illness, defendant lacked mental state required as element of offense charged; Supreme Court has not ruled on constitutionality of abolishing insanity defense

Insanity and competency: insane person may be found competent to stand trial; conversely, person without mental disease at time of act may be incompetent to stand trial; others may be legally insane and incompetent; therefore, any combination of insanity and incompetency possible; insanity issue of culpability; incompetency issue of triability

Patterns of mental disorder and criminality: per Dietz, when crime attributable to psychotic delusions or hallucinations, some perpetrators insane; crime may be motivated by compulsive desire (eg, paraphilia) or disorder of impulse control, or may be related to personality disorder; these disorders generally not viewed as insanity; crime and mental illness may be coincidental

Mental illness vs insanity: 2 persons who commit same act and have same mental disease may be assessed differently in terms of insanity; for example, assume both had paranoid schizophrenia and stole car; one did not know wrongfulness of taking car, and therefore considered legally insane; second patient had delusions but also long history of stealing cars; this patient not legally insane because he comprehended stealing (mentally ill defendant may not qualify as insane)

Assessing insanity: expert examiner reviews police reports and evidence, then interviews defendant to hear defendant’s account of crime and examine person’s thoughts, emotions, and behaviors before, during, and after criminal conduct; to assess wrongfulness, clinician may ask whether defendant understood he could be arrested for act and whether anyone else knew about planned crime or why he did not tell anyone; inquiries about volition may include what defendant trying to accomplish, how long he thought about it, whether he had previously stopped himself from committing act, and whether he would have committed act with police officer present

Motive for crime: examiner should determine whether motive for crime psychotic or nonpsychotic; prosecution must prove intent beyond reasonable doubt; although prosecution need not prove motive, juries curious about motives; when part of motive rational, malingering should be considered; juries incorrectly believe that planning and preparing for crime not consistent with insanity; jurors should be educated that legally insane people may plan crimes

Level of impairment: clinician should consider defendant’s degree of impairment in days before crime and review legal and psychiatric history

Establishing wrongfulness: defendants often concede they knew at time of crime that act wrong; if such statements made, expert should report them; positive indirect evidence of awareness of wrongfulness includes efforts to avoid detection such as wearing mask or disguise, disposing of evidence, fleeing to avoid apprehension, lying to police, and avoiding use of credit cards while fleeing; examiner may also look for negative evidence, such as absence of delusions or hallucinations that caused defendant to think his actions right; evidence for lack of knowledge of wrongfulness may include surprise at being arrested

Evidence of ability to refrain: difficult to ascertain; some previous cases have included arguments that ability to defer act demonstrates ability to refrain; examiner may consider whether defendant able to refrain from specific act

Command hallucinations: arguments about ability to refrain may center on whether patient’s interpretation of command hallucinations required her to commit crime; inability to refrain must be caused by mental disease; for example, if intoxicated person with schizophrenia kills someone, burden on defense to show that inability to refrain from murder resulted from schizophrenia, not intoxication or rage; examiner should assess possible consequences of not obeying delusion or hallucination; for example, command hallucination might threaten severe punishment if defendant fails to carry out act in question; relevant questions include whether defendant pursued reasonable alternatives to crime before committing it

Intoxication: voluntary intoxication not valid insanity defense; intoxication may be related to insanity defense in 4 circumstances; these include involuntary intoxication (eg, drug placed in beverage), idiosyncratic intoxication (person with impaired enzyme has marked reaction upon first use of alcohol), delirium tremens, and Korsakoff psychosis

Settled insanity: applies when person remains psychotic for weeks after taking hallucinogen; individuals who respond to drugs this way may have predisposition to schizophrenia and remain in psychotic state precipitated by intoxicant

Release of insanity acquittees: Jones v. United States (1983) — Supreme Court held that insanity acquittees may be treated as separate class and required to prove themselves no longer mentally ill or dangerous; Foucha v. Louisiana (1992) — man who committed crime during drug-induced psychosis cleared in hospital but also had antisocial personality; although examiner regarded patient as dangerous because of personality (not mental illness), Supreme Court held that patient could not be held unless danger attributable to mental illness; Frendak v. United States (1979) — DC Circuit Court of Appeals held that defendants with voluntary, rational reason for not preferring insanity defense could not have this defense imposed on them

 

 

Readings

American Academy of Psychiatry and the Law (AAPL): AAPL Practice Guideline for forensic psychiatric evaluation of defendants raising the insanity defense. J Am Acad Psychiatry Law 2014;42(4 Suppl):S3-76; Brown KP: Insanity defense typology. Behav Sci Law 2018 May;36(3):317-324; Dietz PE: Mentally disordered offenders. Patterns in the relationship between mental disorder and crime. Psychiatr Clin North Am 1992 Sep;15(3):539-51; FindLaw: The McNaughton rule. Available at: https://criminal.findlaw.com/criminal-procedure/the-m-naghten-rule.html. Accessed November 24, 2018; Freeman SA: Criminal forensic psychiatry: a primer for psychiatrists. J Clin Psychiatry 2016 Jun;77(6):e745; Gowensmith WN et al: Decision-making in post-acquittal hospital release: how do forensic evaluators make their decisions? Behav Sci Law 2014 Sep;32(5):596-607; Guarnera LA, Murrie DC: Field reliability of competency and sanity opinions: A systematic review and meta-analysis. Psychol Assess 2017 Jun;29(6):795-818; Heinbecker P: Two year’s experience under Utah’s mens rea insanity law. Available at: https://pdfs.semanticscholar.org/1c81/cd69b19a379c6d7584868b46eb3f565c3fe2.pdf. Accessed November 24, 2018; Hooper JF: Psychiatry & the law: Landmark cases. Available at: https://web.archive.org/web/20040406144725/http://bama.ua.edu:80/~jhooper/lm-abc.html. Accessed November 24, 2018; Norko MA, Buchanan MA: The forensic psychiatric report. J Psychiatr Pract 2015 Jan;21(1):67-71; O Gardner B et al: Insanity findings and evaluation practices: A state-wide review of court-ordered reports. Behav Sci Law 2018 May;36(3):303-16; Resnick PJ, Soliman S: Planning, writing, and editing forensic psychiatric reports. Int J Law Psychiatry 2012 Sep-Dec;35(5-6):412-7.

Disclosures

For this program, members of the faculty and the planning committee reported nothing to disclose.

Acknowledgements

Dr. Resnick was recorded at Forensic Psychiatry Review Course, presented by the American Academy of Psychiatry and the Law, and held October 22-24, 2018, in Austin, TX. For information on the 2019 Forensic Psychiatry Review Course, scheduled for October 21-23, 2019, in Baltimore, MD, please go to aapl.org. The Audio Digest Foundation thanks Dr. Resnick and the American Academy of Psychiatry and the Law for their cooperation in the production of this program.

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