Criminal Responsibility

History of Insanity Defense: 

  • 1581 England:

    • If a madman or a natural fool, or a lunatic in the time of his lunacy do [kill a man], this is no felonious act for they cannot be said to have any understanding

  • 1724 England: “wild beast test”

    • If a defendant was so bereft of sanity that he understood the ramifications of his behavior "no more than in an infant, a brute, or a wild beast," he would not be held responsible for his crimes.



Guilty Requirements: 

  1. Actus Reus: “guilty act” 

    1. Act can mean: Commission, omission, possession

    2. Must be voluntary 

  2. Mens Rea: “guilty mind”

    1. Varies in definition from crime to crime 

  3. Former US Supreme Court Justice Holmes: 

    1. Even a dog knows the difference between being kicked and stumbled over, although the injury is the same



Competency: Mental state at the time of criminal justice proceedings



Sanity: Mental state at the time of the crime



A person may be: 

  • Insane yet competent to stand trial

  • Sane but incompetent

  • Insane and incompetent

  • Sane and competent



Incidence of Insanity Defense: 

  1. State and federal laws have made it more difficult for defendants pleading NGRI to win acquittal

  2. Rarely raised as a defense (1–3% of all federal cases)

  3. Judges frequently order a competency evaluation and a criminal responsibility evaluation

  4. Alternatives:

    1. Guilty but mentally ill or guilty and mentally ill are alternate verdicts

    2. Diminished capacity 

    3. Jail diversion



Insanity Plea: 

  • Most NGRI defendants have a history of hospitalizations and are diagnosed with a serious MI (usually psychosis)

  • Typically found IST previously



Misperceptions of the Insanity Defense (Borum & Fulero, 1999): 

  • Insanity defense is overused

  • Insanity defense is used exclusively for heinous crimes

  • People acquitted simply “go free”

  • NGRI acquittees are particularly dangerous



M’Naghten Standard (1843): M’Naghten had paranoid delusion that the

Prime Minister of England was trying to kill him

  • A cognitive knowledge of right/wrong:

    • Suffer mental defect at the time of the crim

    • The defendant has to be mentally ill to the extent that he is incapable of knowing what he is doing (the “nature and quality” of the criminal act) or, if he knows what he is doing, that he does not know that what he is doing is wrong



Irresistible Impulse: 

  • Response to M’Naughten  what about ability to control conduct? (volitional impairment)

  • “(1) if, by reason of the duress of… mental disease he had so far lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed; (2) and if, at the same time, the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely”

  • Impulse/desire to do a particular act even if a defendant knew it was wrong



Durham v. United States (1954): 

  • “[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect” (Durham v. U.S., 2010)

  • Proximate causation - the criminal conduct is “caused” by the mental disease or defect

    • Disease- a condition that is considered capable of improving or deteriorating (depression, schizophrenia etc.)

    • Defect- a condition that is not considered capable of improving or deteriorating (result of an injury or congenital condition)

  • “We find that as an exclusive criterion the right-wrong test is inadequate in that (a) it does not take sufficient amount of physic realities and scientific knowledge, and (b) it is based upon one

symptom and so cannot validly be applied in all circumstances. We

find that the 'irresistible impulse' test is also inadequate in that it

gives no recognition to mental illness characterized by brooding and

reflection and so relegates acts caused by such illness to the

application of the inadequate right-wrong test. We conclude that a

broader test should be adopted”



ALI Standard/Model Penal Code (1972):

  • “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of the law”

    • Cognitive Prong - Wrongfulness

    • Volitional Prong - Ability to Conform Conduct

  • Excludes: “abnormality manifested only by repeated criminal or otherwise antisocial conduct”



United States v. Hinckley (1981):

  • “John W. Hinckley Jr. has declared in a letter that neither hospitalization nor imprisonment could diminish his ''historical'' shooting of President Reagan to win the actress Jodie Foster's love.

  • Writing to this reporter, he called his assassination attempt ''the greatest love offering in the history of the world.'' ''Everybody but everybody knows about John and Jodie,'' he said, comparing himself and Miss Foster to Romeo and Juliet and to Napoleon and Josephine”



Impact of Hinckley: 

  • 34 states and federal government changed their insanity defense statutes within 2 ½ years after verdict

  • Most moved to M’Naghten

  • 2007 – 16 states still have volitional prong

  • Insanity Reform Act of 1984 (discussed next)

  • Handful of states added laws allowing jurors to find defendants GBMI

  • Idaho, Kansas, Montana, and Utah abolished the insanity defense

  • Pervasive negative attitudes toward insanity defense that remain today



The Insanity Defense Reform Act (IDRA): 

  • Enacted by congress in 1984

  • “An affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does no otherwise constitute a defense.”

  1. Changed “mental disease or defect” to “severe mental disease or effect”

  2. Eliminated the volitional prong

  3. Prohibited experts from giving ultimate opinions about insanity

  4. Placed on the defendant the burden to prove insanity by clear and convincing evidence, instead on the prosecution proving a defendant’s sanity beyond a reasonable doubt



Insanity Determination: 

  • Difficulty in determining insanity

    • Insanity is a legal concept that may vary from one jurisdiction to another

    • Requires a retrospective assessment of the person’s mental state at the time of the offense (perhaps months or years prior



Assessment of Criminal Responsibility: 

  • Evaluate Using: 

    • Clinical interview

    • Police reports

    • Hospital records

    • Statements of witnesses

    • Psychologist tests

    • Employment or educational records

    • Collateral interviews



Evaluations: 

  • Cognitive Prong: 

    • Thought the behaviors were illegal or wrong…and why

  • Volitional Impairment: 

    • Capacity to make choices

    • Capacity for delay

    • Regard for apprehension

  • Policeman at the elbow test



Assessment of Criminal Responsibility: 

  • Measures:

    • Rogers Criminal Responsibility Assessment Scales

      • Psychopathology, reliability of report, cognitive and behavioral control

    • Mental State at the Time of the Offense Screening Evaluation

      • Clearly not or obviously insane



What happens to defendants adjudicated NGRI: 

  1. Clear and convincing evidence

  2. NGRI defendants have no right to a jury instruction that makes clear the post-acquittal commitment process because would violate principle that jury must base verdict on the evidence

  3. Hospitalized

  4. Indefinite commitment is NOT unconstitutional because:

    1. Crime was proven beyond a reasonable doubt

    2. Sufficient MI by preponderance of evidence



Other Defense Pertaining to Criminal Conduct: 

  • PTSD

  • Automatism (e.g., sleepwalking)

  • Battered woman syndrome

  • Substance abuse disorders

  • Dissociative disorders

  • Duress

  • Extreme emotional disturbance