Mentally Disordered Offenders

What is mental status?

The level of global functioning one is subject to at any given point in time

What is included in mental status?

Memory, orientation, sensorium, drive, affect, cognition/concentration, delusions

What are delusions?

Unreasonable thoughts that don't stand logical scrutiny

What type of conditions are characterized by disruptions in areas of mental status?

Axis 1: schizophrenia, major depressive disorder, bipolar

What is mental status related to in terms of forensic psychology?

Fitness to stand trial and criminal responsibility

What is actus reus?

A guilty act

What is mens rea?

A guilty mind

What is needed to establish guilt?

Actus reus and mens rea

What component of guilt is the concern of psychologists?

Mens rea

What is offenders current mental status relevant to?

Fitness to stand trial

What is offenders mental status at time of offence (MSO) relevant to?

Mens rea

How can mens rea be graded?

Purpose, knowledge, recklessness, and negligence

If an offenders purpose was to murder/they intended, what would it be described as?

First degree murder

If a person went on harming someone despite knowledge of them potentially dying, what would it be described as?

Second degree murder

If a person recklessly ignored the risk of their behaviour in causing someones death, what could it be described as?

Manslaughter

If a person failed to consider the lethal outcome of their behaviour, what is the likely result for offenders?

Failed due diligence, potential manslaughter

What is fitness to stand trial NOT concerned with?

Mental status at the time of the offence

What is one of the most common questions on a forensic order for examination and report?

Is the offender fit to stand trial?

When was fitness to stand trial first addressed in British common law?

17th century

Why was fitness to stand trial first questioned?

It seemed unfair to try someone if they're unable to defend themselves

What was reasoning for elective mutism in fitness to stand trial considerations?

Class structure had lower-level individuals who didn't understand laws scared to defend themselves

What were three explanations of mutism back in early law?

Mute by malice (non cooperative), mute by visitation from god (insanity), muted by visitation from the devil

What was the outcome if a person was mute by malice?

They were tortured until they pleaded

What was the outcome if a person was mute by visitation from god?

They weren't prosecuted

What was the outcome if a person was mute by visitation from the devil?

They were tested by water (also torture but intended to separate from those unwilling, usually fatal)

What was the ruling if a person tested by water died under the water?

They were innocent

What was the ruling if a person tested by water came back up alive?

They were guilty; rejected by the water

What is the criteria underlying fitness?

Sufficient age, cognitive adequacy, sanity

What was sufficient age to test fitness to stand trial vs now?

Was 10, now at least 12

Why must sanity be considered in testing fitness to stand trial?

Must be absent of debilitating mental disorder to be able to defend self

Is it possible to be "insane" and fit to stand trial in todays world?

Yes

When does insanity dictate one to be unable to stand trial?

If mental disorder compromises ability to:

-Understand role of courtroom participants

-Understand charge of criminal offense

-Instruct counsel

What is the level of understanding of courtroom participants required to be able to stand trial?

Understanding adversarial nature

-You vs them, judge is referee

What is the level of understanding of charge of criminal offence required to be able to stand trial?

Must know the range of outcomes

-Not guilty means not punished

*could potentially believe innocence is bad

What is the level of ability to instruct counsel required to be able to stand trial?

Must be able to participate in viable defence and challenge a prosecution witness

What must be remembered in determining fitness to stand trial?

-Presence of diagnosis isn't enough

-Amnesia of events isn't enough

-No requirement that defendant must act in their own best interest

-Fitness can change over time, or "become fit"

-Fitness can be questioned at any time

If a person uses amnesia of events as a defence, what could be countered?

What is the basis for a not-guilty plea if events aren't remembered

In determining fitness, what is presumed?

Defendant is fit

What is the standard timeframe for a fitness evaluation?

30 days

-Good stall tactic

Why may a judge use a fitness evaluation/make fit order?

To force treatment on person that clearly needs it

What is often confused by lawyers?

Fitness and MSO/criminal responsibility

What if offender is found unfit?

Can be sent to psychiatric up to 2 years (previously indefinite)

Why is fitness defense a lousy strategy for minor crimes?

The punishment for the crimes is usually less than duration of psych treatment

What is the typical unfit patient?

-Low IQ

-No fixed address

-Lengthy psych history

-Few community supports (happy to be in hospital)

What other areas besides fitness is competency questioned?

-Competency to confess

-Competency to refuse an insanity defense

-Competency to refuse counsel

-Fitness to testify

-Competency to be sentences and executed (US)

Are confessions made by an insane person admissible?

Yes, unless their illness was used to obtain confession

Why would a person refuse an insanity defense?

A finding of guilt may be less consequential

When can't a person refuse council?

If refusal is based on delusional/paranoid beliefs (lawyer is working with other side)

When does an understanding of truth versus falsehood occur?

Mental age of 7-10

Can a person under 12 be prosecuted?

No, but may be asked to testify

Why must a person be competent to be executed?

It is wrong to punish a person for reasons they don't comprehend

Why is making a person competent an ethical issue?

They may become subject to scrutiny of execution

What is required for an NCR finding?

MSO impairment

What are the roots of MSO?

Lunatics in ancient Greece

-Low class, low functioning individuals committed crimes at full moons (lunar cycle)

What did people in Ancient Greece believe caused crime? What is this?

The moon, superstition

How does the public view the "insanity" defense?

See it as a legal loophole

How successful is the insanity defense?

30%

When is the insanity defense efficient?

Can result in lower sentences for major crimes

What allowed Dorothy Joudrie to receive such a small penalty for the murder of her husband?

The insanity defense

-Only 6 months in psych hospital

What crime did Daniel M'Naughton commit?

Murdered Edward Drummond (mistook him for PM Robert Peel)

Why did M'Naughton commit the crime?

He believed the tories compelled him, and that he was threatened

Why was M'Naughton acquitted of the murder charge?

He genuinely believed he was threatened, committed murder in self defence

What did Tindal rule permissible given insanity?

If the accused was under such defect of reason that they didn't know the nature of what they were doing, or that it was wrong, they may be given defence

What was the problem with the M'Naughten ruling

Too rigorous, only applied to extremely impaired individuals

Who was never tried under the M'Naughton rule?

Daniel M'Naughton (probably would've been found guilty)

What replaced the M'Naughton rule?

Durham rule

What was the Durham rule?

The crime was a product of a mental defect or disease

What was the problem with the Durham rule?

Any mental illness pretty much qualified, even antisocial PD (which doesn't count)

What is the American Law Institute test?

Defendant failed to appreciate the wrongfulness of the act, or couldn't conform their behaviour to law as a result of mental illness or defect

What was the advantage of the ALI test?

Excludes ASPD/psychopathy, requires substantial but not total (like M'Naughton) impairment

In the US, where does burden of proof lie?

With either the prosecution or defense

In Alberta, where does burden of proof lie?

Raised by either side, with expert evidence used before decision is made

Why is ASPD excluded from insanity defense?

It doesn't impair the ability to appreciate wrongfulness

What does section 16 of the Canadian Criminal Code state?

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong

What is the valuable addition of the CCC definition of NCR?

Omission, includes criminal negligence

What is the test used in finding people NCR in Canada?

Two part test: mental illness + non-appreciation

What is required in determining NCR?

Expert knowledge of psychopathology, cognitive issues, and malingering

What is the biggest mistake made in malingering?

Can't stay in character (present differently from context to context unrealistically)

-Feign low function when history shows better function

What was the outcome of R v Leary (1978)?

Self induced intoxication is not a defense in matters of general intent

What was the outcome of R v Daviault (1993)?

Leary ruling doesn't apply if intoxication is to the point that person is an automaton (not in control of self)

If someone is intoxicated and punches someone, resulting in their death, but they didn't intend to kill them, what would they be found under the Leary rule?

They are held responsible for the death, but not as murder

-Likely manslaughter

What does Section 33.1 of CCC provide?

Self-induced intoxication is not a viable defence in cases with an element of assault

What was found of the R v Bouchard-Lebrun (2011) case?

-Assaulted people while in a drug-induced psychosis

-Argued intoxication should place him in section 16

-Appeal denied

Why was R v Bouchard-Lebrun's appeal denied?

A malfunctioning of mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense

How can intoxication bring in arguments of voluntariness?

Drug removed voluntariness in committing a crime

What was found in the R v Sullivan (2020) appeal?

Section 33.1 was unconstitutional and of no effect in Ontario

-Didn't protect persons presumed innocence

What is section 1 of the charter?

Limits placed upon a person must be demonstrably justified in a free and democratic society

What is section 7 of the charter?

A person can't be deprived of life, liberty and security except in accordance to principles of fundamental justice

How is section 33.1 against section 11(d) of the charter?

Onus of proof is placed on the person, rather than being presumed innocent

Why is temporary insanity defense unavailable to people intoxicated at the time of offense?

Defense has to show disorder of chronic and persistent nature

Why are automatism defences rare exceptions?

They neutralize mens rea

When are automatism defences successful?

If there's evidence that the defendant sought treatment for condition (attempted to mitigate risk factors)

-CTE, epilepsy, involuntary intoxication

Why are automatism defenses great?

Don't wind up in psych hospital, and not found guilty

When may automatism be used as a defense?

Extreme cases of PTSD

What happens if you're found NCR?

-Come under Alberta board of review

-Slow release after several hearings (retained on warrants)

-Proceedings similar to court (judge, psych, crown, treatment team, forensic director)

-Stepped release into community

What may a lawyer argue of mens rea in the absence of insanity?

Diminished capacity

What issues would diminished capacity defences be useful in?

Specific intent

-Attempt to get conviction for lesser charge, general intent remains

How are some courts restricting psychologist testimony?

To matters of capacity to form criminal intent, not the intent itself

When would insanity not get an NCR defense in a crime?

Crime committed is apart from their illness

When can questions of defendants pre-existing character be raised?

If crime committed is characteristic of a different illness or apart from their illness