Insanity, MSO, and Insanity, MSO, and Related IssuesRelated Issues

Russell M. Bauer, Ph.D.Russell M. Bauer, Ph.D.

July 24, 2008July 24, 2008

Mental State at OffenseMental State at Offense

• One of the most One of the most difficult and difficult and bloodcurdlingbloodcurdling tasks of a forensic tasks of a forensic psychologistpsychologist– it isit is RETROSPECTIVE RETROSPECTIVE– MOTIVATIONAL factors affect current MOTIVATIONAL factors affect current

presentationpresentation

• RequiresRequires “investigative reconstruction” “investigative reconstruction” of of crime events, often involving information crime events, often involving information psychologists are not used to reviewingpsychologists are not used to reviewing

History of Insanity DefenseHistory of Insanity Defense

• Basic Concept: free willBasic Concept: free will• Mc’Naghten Case (1840’s) – emphasizes cognitive Mc’Naghten Case (1840’s) – emphasizes cognitive

understandingunderstanding• ““Irresistable Impulse” rule – volitional control Irresistable Impulse” rule – volitional control

standardstandard• Durham vs. United States: “product” of mental Durham vs. United States: “product” of mental

disease or defect (1954); also known as the “but for” disease or defect (1954); also known as the “but for” testtest

• American Law Institute Model Penal Code: cognition American Law Institute Model Penal Code: cognition (appreciation) vs. volition (control)(appreciation) vs. volition (control)

• 1984 Congress: wrongfulness appreciation1984 Congress: wrongfulness appreciation• VERY rare defense (<<l%, and of that, rarely VERY rare defense (<<l%, and of that, rarely

successful)successful)

Pre-M’NaghtenPre-M’Naghten

• 1313thth century: century: “man  must be totally deprived of his understanding and memory so as not to know what he is doing, no more than an infant, brute or a wild beast” (Melton, 1997, p. 190).

M’NaghtenM’Naghten• 1843: murder of Prime Minister’s assistant1843: murder of Prime Minister’s assistant• M’Naghten acquitted based on mental disorderM’Naghten acquitted based on mental disorder• House of Lords later ruled:House of Lords later ruled: “To establish a “To establish a

defense on the ground of insanity, it must be clearly defense on the ground of insanity, it must be clearly proved that, at the time of committing of the act, the proved that, at the time of committing of the act, the party accused was laboring under such a defect of party accused was laboring under such a defect of reason, from disease of the mind, as not to know the reason, from disease of the mind, as not to know the nature and quality of the act that he was doing, or, if nature and quality of the act that he was doing, or, if he did know it, that he did not know what he was he did know it, that he did not know what he was doing was wrong”doing was wrong”

• M’Naghten committed to BedlamM’Naghten committed to Bedlam, eventually died , eventually died in another hospital after decades of “treatment”in another hospital after decades of “treatment”

ExampleExample

• Defendant bites another person Defendant bites another person because he believes him to be a because he believes him to be a piece of chicken (crime: battery)piece of chicken (crime: battery)– Could prove insanity under Prong 1Could prove insanity under Prong 1

• Defendant bites another person, Defendant bites another person, knowing him to be a person, but knowing him to be a person, but not knowing that biting is painful not knowing that biting is painful and can injure the other personand can injure the other person– Could prove insanity under Prong 2Could prove insanity under Prong 2

American Law Institute (ALI, American Law Institute (ALI, 1955)1955)

• A person is not responsible for criminal conduct A person is not responsible for criminal conduct if at the time of such conduct as a result of if at the time of such conduct as a result of mental disease or defect he lacks mental disease or defect he lacks substantialsubstantial capacity capacity eithereither to to appreciateappreciate the the wrongfulness of his conduct wrongfulness of his conduct oror to conform his to conform his conduct to the requirements of the lawconduct to the requirements of the law

• Changes from beforeChanges from before– Change implication of “full” (did not know) to Change implication of “full” (did not know) to

“substantial” (appreciate)“substantial” (appreciate)– Change “know” to “appreciate”Change “know” to “appreciate”– Change “criminality” to “wrongfulness”Change “criminality” to “wrongfulness”– Essentially eliminated repeated acts in and of Essentially eliminated repeated acts in and of

themselves (e.g., APD)themselves (e.g., APD)

““Irresistable Impulse”Irresistable Impulse”

• The defendant is not legally The defendant is not legally responsible:responsible:– if by reason of the duress of mental disease if by reason of the duress of mental disease

he had so far lost the power to choose he had so far lost the power to choose between right and wrong, and to avoid between right and wrong, and to avoid doing the act in question that his free doing the act in question that his free agency was destroyedagency was destroyed

– act the product of mental disease solelyact the product of mental disease solely• Problem: how do you distinguish an Problem: how do you distinguish an

“irresistable impulse” from an “impulse “irresistable impulse” from an “impulse not resisted”?not resisted”?

Three Variations on Three Variations on Irresistable ImpulseIrresistable Impulse

• (l) Defendant 'acted from an irresistible and uncontrollable impulse';

• (2) Defendant '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';

• (3) Defendant's 'will . . . has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.'

Durham v. United StatesDurham v. United States

• Source of the “product test”Source of the “product test”– simply that “an accused is not criminally simply that “an accused is not criminally

responsible if his unlawful act was the responsible if his unlawful act was the productproduct of a mental disease or defect” of a mental disease or defect”

• Problems:Problems:– what is a “product”? (i.e., what is the what is a “product”? (i.e., what is the

causative chain?)causative chain?)– Which mental diseases qualify?Which mental diseases qualify?

• Case eventually overturned; now of Case eventually overturned; now of historical significance onlyhistorical significance only

State InterpretationsState Interpretations

• One-half use M’Naghten One-half use M’Naghten • One-third of states use ALIOne-third of states use ALI• Three states have reference to Three states have reference to

“irresistable impulse”“irresistable impulse”• Four states have abolished insanity Four states have abolished insanity

defense altogether (Montana, Idaho, defense altogether (Montana, Idaho, Utah, Kansas)Utah, Kansas)

• NH: “product” of mental disease or NH: “product” of mental disease or defect”defect”

Generally Excluded Mental Generally Excluded Mental DisordersDisorders

• Antisocial personalityAntisocial personality• Adjustment disorderAdjustment disorder• ““Compulsive” disordersCompulsive” disorders• Seizure disorders allowable in Seizure disorders allowable in

some jurisdictions, not in otherssome jurisdictions, not in others

1984 Congress (Insanity 1984 Congress (Insanity Defense Reform Act)Defense Reform Act)

• Reform in response to Hinckley verdict Reform in response to Hinckley verdict (aquitted on volitional prong of ALI)(aquitted on volitional prong of ALI)

• 1980’s ABA and APA standards: “A person is 1980’s ABA and APA standards: “A person is not responsible for criminal conduct if, at the not responsible for criminal conduct if, at the time of such conduct, and as a result of mental time of such conduct, and as a result of mental disease or defect, that person was unable to disease or defect, that person was unable to appreciate the wrongfulness of their conduct”appreciate the wrongfulness of their conduct”

• 1984 Congress adopts ABA standard (cognitive 1984 Congress adopts ABA standard (cognitive prong of ALI)prong of ALI)– Defense has burden (affirmative defense)Defense has burden (affirmative defense)– clear and convincing evidence neededclear and convincing evidence needed

Unsuccessful Insanity Unsuccessful Insanity PleasPleas• Kip KinkelKip Kinkel, l7, shot 29 people in an Oregon school rampage in

1998; heard “command” voices; abandoned insanity defense, got 25+ years

• David BerkowitzDavid Berkowitz, “Son of Sam” killings NYC, sentenced to 365 years in jail

• Ted BundyTed Bundy; US serial killer l974-l978; responsible for an estimated 40 murders; executed in FL electric chair

• Sirhan SirhanSirhan Sirhan: murdered Robert Kennedy l968; convicted, sentenced to death; commuted to life in prison

• Henry Lee LucasHenry Lee Lucas; serial murderer in FL l982• Charles MansonCharles Manson; cult leader; sentenced to death; CA suspends

death penalty later• John Wayne GacyJohn Wayne Gacy, used DID defense; convicted of 33 murders in

l980; executed l994• Ted KaczynskiTed Kaczynski, Unabomber, thought to be suffering from paranoid

schizophrenia; 4 consecutive life sentences• Jeffrey DahmerJeffrey Dahmer; necrophilia, cannibalism, l60-page rambling

confession; convicted l992, killed in prison l994

A notable exceptionA notable exception

• Andrea Yates: drowned children in bathtub; history of postpartum depression, convicted in 2003; conviction overturned on appeal, was found NGRI in second trial

Issues in Insanity DefenseIssues in Insanity Defense

• All variations require mental disease or defect• Wrong but morally justified – wrongfulness can

be interpreted as moral, not criminal, only with specific facts (in some jurisdictions)

• Law does not distinguish conscious from unconscious reasoning

• Meaning of the terms “know” and “wrong”• Irresistable Impluse: “officer at the elbow

test”• Measures of criminal responsibility: R-CRAS

What the Jury is Told (CA)What the Jury is Told (CA)• The defendant has been found guilty of the crime of _____. You must The defendant has been found guilty of the crime of _____. You must

now determine whether [he] [she] was legally sane or legally insane now determine whether [he] [she] was legally sane or legally insane at the time of the commission of the crime. This is the only issue for at the time of the commission of the crime. This is the only issue for you to determine in this proceeding. you to determine in this proceeding.

• You may consider evidence of [his] [her] mental condition before, You may consider evidence of [his] [her] mental condition before, during and after the time of the commission of the crime, as tending during and after the time of the commission of the crime, as tending to show the defendant's mental condition at the time the crime was to show the defendant's mental condition at the time the crime was committed. committed.

• [Mental illness and mental abnormality, in whatever form they may [Mental illness and mental abnormality, in whatever form they may appear, are not necessarily the same as legal insanity. A person may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane]. be mentally ill or mentally abnormal and yet not be legally insane].

• A person is legally insane when by reason of mental disease or defect A person is legally insane when by reason of mental disease or defect [he] [she] was incapable of knowing or understanding the nature and [he] [she] was incapable of knowing or understanding the nature and quality of [his] [her] act or incapable of distinguishing right from quality of [his] [her] act or incapable of distinguishing right from wrong at the time of the commission of the crime. wrong at the time of the commission of the crime.

• The defendant has the burden of proving [his] [her] legal insanity at The defendant has the burden of proving [his] [her] legal insanity at the time of the commission of the crime by a preponderance of the the time of the commission of the crime by a preponderance of the evidence.evidence.

Burden of ProofBurden of Proof

• One-third of states require One-third of states require prosecution to prove sanity “beyond prosecution to prove sanity “beyond reasonable doubt” (90-95%)reasonable doubt” (90-95%)

• Most remaining states require Most remaining states require defendant to prove insanity by defendant to prove insanity by “preponderance of evidence” (5l%)“preponderance of evidence” (5l%)

• AZ and federal courts: defendant AZ and federal courts: defendant must prove sanity by “clear and must prove sanity by “clear and convincing” evidence (75%)convincing” evidence (75%)

Basic Elements of Crime Basic Elements of Crime Behavior Relevant to Insanity Behavior Relevant to Insanity

DefenseDefense• physical conduct of crime (physical conduct of crime (“actus “actus

reus”reus”))• mental state (level of intent) mental state (level of intent)

associated with the crime (associated with the crime (“mens “mens rea”rea”))

• to convice to convice beyond reasonable doubtbeyond reasonable doubt, , state must prove that the defendant state must prove that the defendant committed the actus reus with the committed the actus reus with the requisite mens rea for that crimerequisite mens rea for that crime

Defenses Related to Defenses Related to SanitySanity

• Automatism DefenseAutomatism Defense– acts committed “involuntarily”acts committed “involuntarily”– this is different from sanitythis is different from sanity

• automatons are “unaware” (but will be automatons are “unaware” (but will be held responsible if ailment had previously held responsible if ailment had previously existed and steps were not taken to existed and steps were not taken to prevent or manage it)prevent or manage it)

• prosecution bears burden of negating prosecution bears burden of negating automatism beyond reasonable doubtautomatism beyond reasonable doubt

• no mental disease or defect requiredno mental disease or defect required

Defenses Related to Defenses Related to SanitySanity

• Diminished CapacityDiminished Capacity– mental state essentially defined culpability; mental state essentially defined culpability;

planning a crime involves more intent than planning a crime involves more intent than accidentally committing oneaccidentally committing one

– specific vs. general intentspecific vs. general intent– Mens ReaMens Rea components: components:

• Purpose:Purpose: conscious intent conscious intent• Knowledge:Knowledge: awareness, but not conscious intent awareness, but not conscious intent• Recklessness:Recklessness: disregarding a substantial and disregarding a substantial and

unjustifiable riskunjustifiable risk• Negligence:Negligence: not aware of a risk, but should have not aware of a risk, but should have

been awarebeen aware

Defenses Related to Defenses Related to SanitySanity

• IntoxicationIntoxication - generally not - generally not viewed positively by the courts viewed positively by the courts unless accidentalunless accidental

• Guilty but Mentally IllGuilty but Mentally Ill - may be - may be sentenced to any term appropriate sentenced to any term appropriate to the offense with the opportunity to the offense with the opportunity to receive treatment during the to receive treatment during the period of incarcerationperiod of incarceration

MSO EvaluationMSO Evaluation

• Place emphasis on information related Place emphasis on information related to crime scenario (contains mens rea to crime scenario (contains mens rea information)information)

• Statements/confessions are important, Statements/confessions are important, but must be treated with cautionbut must be treated with caution

• Brief MSE (for diagnosis)Brief MSE (for diagnosis)• Discuss crime with defendantDiscuss crime with defendant• Prior records relevant to diagnosisPrior records relevant to diagnosis

Phases of MSO EvaluationPhases of MSO Evaluation

• Review of RecordsReview of Records• Intro, orientation, rapport buildingIntro, orientation, rapport building• Developmental/Sociocultural historyDevelopmental/Sociocultural history• Assessment of current mental statusAssessment of current mental status

– May or may not require neuropsychological May or may not require neuropsychological assessmentassessment

– Should stage assessment relative to alleged Should stage assessment relative to alleged behavioral shortcomingsbehavioral shortcomings

• Questions/descriptions of alleged crimeQuestions/descriptions of alleged crime