Insanity, MSO, and Related
Issues
Russell M. Bauer, Ph.D.
July 27, 2006
Mental State at Offense
• One of the most difficult and bloodcurdling tasks
of a forensic psychologist
– it is RETROSPECTIVE
– MOTIVATIONAL factors affect current presentation
• Requires “investigative reconstruction” of crime events,
often involving information psychologists are not used
to reviewing
History of Insanity Defense
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Basic Concept: free will
Mc’Naghten Case (1840’s)
“Irresistable Impulse” rule
Durham vs. United States: “product” of mental
disease or defect (1954)
• American Law Institute: appreciation vs. control
• 1984 Congress: wrongfulness appreciation
• VERY rare defense (<<l%, and of that, rarely
successful)
Pre-M’Naghten
• 13th 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’Naghten
• 1843: murder of Prime Minister’s assistant
• M’Naghten acquitted based on mental disorder
• House of Lords later ruled: “To establish a defense on the
ground of insanity, it must be clearly proved that, at the time of
committing of the act, the party accused was laboring under such
a defect of reason, from disease of the mind, as not to know the
nature and quality of the act that he was doing, or, if he did
know it, that he did not know what he was doing was wrong”
• M’Naghten committed to Bedlam, eventually died in another
hospital after decades of “treatment”
Example
• Defendant bites another person because he
believes him to be a piece of chicken (crime:
battery)
– Could prove insanity under Prong 1
• Defendant bites another person, knowing him to
be a person, but not knowing that biting is
painful and can injure the other person
– Could prove insanity under Prong 2
American Law Institute (ALI)
• 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 wrongfulness of his conduct or to
conform his conduct to the requirements of the law
• Changes from before
– Change implication of “full” to “substantial”
– Change “know” to “appreciate”
“Irresistable Impulse”
• The defendant is not legally responsible:
– if by reason of the duress of mental disease he had
so far lost the power to choose between right and
wrong, and to avoid doing the act in question that
his free agency was destroyed
– act the product of mental disease solely
• Problem: how do you distinguish an
“irresistable impulse” from an “impulse not
resisted”?
Three Variations on
Irresistable 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 States
• Source of the “product test”
– simply that “an accused is not criminally responsible if his
unlawful act was the product of a mental disease or defect”
• Problems:
– what is a “product”? (i.e., what is the causative chain?)
– what is a mental disease?
• Case eventually overturned; now of historical
significance only
State Interpretations
• One-half use M’Naghten
• One-third of states use ALI
• Three states have reference to “irresistable
impulse”
• Four states have abolished insanity defense
altogether (Montana, Idaho, Utah, Kansas)
• NH: “product” of mental disease or defect
Generally Excluded Mental
Disorders
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Antisocial personality
Adjustment disorder
“Compulsive” disorders
Seizure disorders allowable in some jurisdictions,
not in others
1984 Congress (Insanity
Reform Act)
• Reform in response to Hinckley verdict
• 1980’s ABA and APA standards: “A person is
not responsible for criminal conduct if, at the
time of such conduct, and as a result of mental
disease or defect, that person was unable to
appreciate the wrongfulness of their conduct”
• 1984 Congress adopts ABA standard (cognitive
prong of ALI)
Unsuccessful Insanity Pleas
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Kip Kinkel, l7, shot 29 people in an Oregon school rampage in 1998; heard
“command” voices; abandoned insanity defense, got 25+ years
David Berkowitz, “Son of Sam” killings NYC, sentenced to 365 years in jail
Ted Bundy; US serial killer l974-l978; responsible for an estimated 40 murders;
executed in FL electric chair
Sirhan Sirhan: murdered Robert Kennedy l968; convicted, sentenced to death;
commuted to life in prison
Henry Lee Lucas; serial murderer in FL l982
Charles Manson; cult leader; sentenced to death; CA suspends death penalty later
John Wayne Gacy, used DID defense; convicted of 33 murders in l980; executed
l994
Ted Kaczynski, Unabomber, thought to be suffering from paranoid
schizophrenia; 4 consecutive life sentences
Jeffrey Dahmer; necrophilia, cannibalism, l60-page rambling confession;
convicted l992, killed in prison l994
A 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 Defense
• All variations require mental disease or defect
• Applies most specifically to psychosis and mental
retardation
• Temporary vs. permanent insanity
• Law does not distinguish conscious from unconscious
reasoning
• Meaning of the terms “know” and “wrong”
• Irresistable Impluse: “officer at the elbow test”
• Burden of Proof
What the Jury is Told (CA)
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The defendant has been found guilty of the crime of _____. You must 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 you to determine in this proceeding.
You may consider evidence of [his] [her] mental condition before, 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 committed.
[Mental illness and mental abnormality, in whatever form they 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].
A person is legally insane when by reason of mental disease or defect [he] [she] was
incapable of knowing or understanding the nature and quality of [his] [her] act or
incapable of distinguishing right from wrong at the time of the commission of the
crime.
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 evidence.
Burden of Proof
• One-third of states require prosecution to prove
sanity “beyond reasonable doubt” (90-95%)
• Most remaining states require defendant to
prove insanity by “preponderance of evidence”
(5l%)
• AZ and federal courts: defendant must prove
sanity by “clear and convincing” evidence (75%)
Basic Elements of Crime Behavior
Relevant to Insanity Defense
• physical conduct of crime (“actus reus”)
• mental state (level of intent) associated with the
crime (“mens rea”)
• to convice beyond reasonable doubt, state must
prove that the defendant committed the actus reus
with the requisite mens rea for that crime
Defenses Related to Sanity
• Automatism Defense
– acts committed “involuntarily”
– this is different from sanity
• automatons are “unaware” (but will be held responsible if
ailment had previously existed and steps were not taken to
prevent or manage it)
• prosecution bears burden of negating automatism beyond
reasonable doubt
• no mental disease or defect required
Defenses Related to Sanity
• Diminished Capacity
– mental state essentially defined culpability; planning a crime
involves more intent than accidentally committing one
– specific vs. general intent
– Mens Rea components:
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Purpose: conscious intent
Knowledge: awareness, but not conscious intent
Recklessness: disregarding a substantial and unjustifiable risk
Negligence: not aware of a risk, but should have been aware
Defenses Related to Sanity
• Intoxication - generally not viewed positively by
the courts unless accidental
• Guilty but Mentally Ill - may be sentenced to
any term appropriate to the offense with the
opportunity to receive treatment during the
period of incarceration
MSO Evaluation
• Place emphasis on information related to crime
scenario (contains mens rea information)
• Statements/confessions are important, but must
be treated with caution
• Brief MSE (for diagnosis)
• Discuss crime with defendant
• Prior records relevant to diagnosis
Phases of MSO Evaluation
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Review of Records
Intro, orientation, rapport building
Developmental/Sociocultural history
Assessment of current mental status
– May or may not require neuropsychological assessment
– Should stage assessment relative to alleged behavioral
shortcomings
• Questions/descriptions of alleged crime