Insanity, MSO, and Related
Issues
Russell M. Bauer, Ph.D.
July 21, 2014
Mental State at Offense
• One of the most difficult and bloodcurdling tasks
of a forensic psychologist
– it is RETROSPECTIVE
– MOTIVATIONAL factors affect current presentation
– It requires “POINT IN TIME” determination
• Requires “investigative reconstruction” of crime events,
often involving information psychologists are not used
to reviewing
– Crime scene information – behavioral/motivational
reconstruction
History of Insanity Defense
• Basic Concept: free will
• Has existed or many centuries
• Mc’Naghten Case (1840’s) – emphasizes cognitive
understanding
• “Irresistable Impulse” rule – volitional control standard
• Durham vs. United States: “product” of mental disease or defect
(1954); also known as the “but for” test
• American Law Institute Model Penal Code: cognition
(appreciation) vs. volition (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 (narrow)
• 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 (PRONG 1), or,
if he did know it, that he did not know what he was doing was
wrong (PRONG 2)”
• 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
Durham v. United States
• This ruling is the source of the “product test” Durham
v. U.S. (214 F.2d 862)
– “an accused is not criminally responsible if his unlawful act
was the product of a mental disease or defect”
– Way more “generous” than McNaghten
• Problems:
– what is a “product”? (i.e., what is the causative chain?)
– Which mental diseases qualify?
• Case eventually overturned (US v. Brawner, 471F .2d
969 (1972). Places too much emphasis on experts
• Now of mainly historical significance
American Law Institute (ALI, 1955)
• Compromise between McNaghten and Durham
• 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
• Some ‘mental disorders’ excluded (e.g., antisocial PD)
• Changes from before
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–
–
–
Change implication of “full” (did not know) to “substantial” (appreciate)
Change “know” to “appreciate”
Change “criminality” to “wrongfulness”
Essentially eliminated repeated acts in and of themselves (e.g., APD)
• Was widely popular for a time; now no longer used federally,
and only 18 states use the ALI test
“Irresistable Impulse” (ca
1960)
• “Volitional” vs. “cognitive” insanity
• Technically, this is “diminished capacity” defense, not
insanity; used to mitigate
• 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” (a tough test, see below)
– act the product of mental disease solely
– Most relevant to impulse control disorders
• 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.'
State Interpretations
(subject to change)
• 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
•
•
•
•
Antisocial personality
Adjustment disorder
“Compulsive” disorders
Seizure disorders allowable in some
jurisdictions, not in others – clinical
considerations (i.e., is it possible to execue an
articulated plan while in seizure mode?) are
important
1984 Congress (Insanity
Defense Reform Act)
• Reform in response to Hinckley verdict (aquitted on volitional
prong of ALI)
• 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)
– Defense has burden (affirmative defense)
– clear and convincing evidence needed
Cases in which MSO/Insanity
Was Considered
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•
•
•
•
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•
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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, eventually recanted the “possessed
dog” explanation and was sentenced to 365 years in jail
Ted Bundy; US serial killer l974-l978; responsible for an estimated 40 murders;
executed 1989 in FL electric chair
Sirhan Sirhan: murdered Robert Kennedy l968; convicted, sentenced to death;
commuted to life in prison; unsuccessful irresistable impulse
Henry Lee Lucas; serial murderer in TX/FL l982; died in prison 2001
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 in 2006
Issues 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)
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•
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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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•
•
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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 viewed negatively by the
courts unless accidental (the act of intoxication
is seen as volitional)
• 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
• Review of Records
• Intro, orientation, rapport building for evaluation –
defendant must see this as different from interrogation
• 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