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In criminal trials, the insanity defenses are possible defenses by excuse, an affirmative defense by which defendants argue that they should not be held criminally liable for breaking the law because they were legally insane at the time of the commission of alleged crimes. A defendant attempting such a defense will often be required to undergo a mental examination beforehand. The legal definition of "insane" is, in this context, quite different from psychiatric definitions of "mentally ill". When the insanity defense is successful, the defendant is usually committed to a psychiatric hospital.

In the United Kingdom and the United States, use of the defense is rare; it is more common to rely upon a state of temporary mental impairment. In the United States, this is not a legal defense, but a mitigating factor referred to as "diminished capacity". Mitigating factors, including things not eligible for the insanity defense like intoxication, may lead to reduced charges or reduced sentences. The insanity defense is available in most jurisdictions that respect human rights and have a rule of law although the extent to which it can be applied differs between jurisdictions.

The insanity defense is based on evaluations by forensic professionals that the defendant was incapable of distinguishing between right and wrong at the time of the offense. Some jurisdictions require the evaluation to address the defendant's ability to control his or her behavior at the time of the offense. A defendant making the insanity argument might be said to be pleading "not guilty by reason of insanity" (NGRI) which, if successful, may result in the defendant being committed to a psychiatric facility for an indeterminate period.

Diminished responsibility or diminished capacity can be employed as a mitigating factor and in the United States is applicable to more circumstances than the insanity defense. For example, some jurisdictions accept inebriation or other drug intoxication as mitigating factors whilst intoxication is not accepted as an insanity defense on its own. If diminished responsibility or capacity is presented convincingly, the charges may be reduced to a lesser offense or the sentence may be more lenient.


Mitigating factor

The United States Supreme Court in Penry v. Lynaugh and the United States Court of Appeals for the Fifth Circuit in Bigby v. Dretke have been clear in their decisions that jury instructions in death penalty cases that do not ask about mitigating factors regarding the defendant's mental health violate the defendant's Eighth Amendment rights, saying that the jury is to be instructed to consider mitigating factors when answering unrelated questions. This ruling suggests specific explanations to jury is necessary to weigh mitigating factors.

Withdrawal of successful insanity defense

Several cases have ruled that persons found not guilty by reason of insanity may not withdraw the defense in an habeas petition to pursue an alternative. However, other rulings have allowed it. In State v. Connelly, for example, the petitioner who had originally been found not guilty by reason of insanity and committed for ten years to the jurisdiction of a Psychiatric Security Review Board filed a pro se writ of habeas corpus and the court vacated his insanity acquittal. He was granted a new trial and found guilty of the original charges, receiving a prison sentence of 40 years.[1]

Refusal of insanity defense

In the landmark case of Frendak v. United States, the court ruled that the insanity defense cannot be imposed upon an unwilling defendant if an intelligent defendant voluntarily wishes to forgo the defense.[2]

Psychiatric treatments

Those found to have been not guilty by reason of insanity are generally then required to undergo psychiatric treatment, except in the case of temporary insanity (see below). Defendants found not guilty by reason of insanity are generally placed in a mental institution. Unlike defendants who are found guilty of a crime, they are not institutionalized for a fixed period, but rather held in the institution until they are determined not to be a threat. Authorities making this decision tend to be cautious and as a result, defendants can often be incarcerated for longer than they would have been in prison.[citation needed] In Foucha v. Louisiana (1992) the Supreme Court of the United States ruled that a person could not be held "indefinitely".

So far, in the United States, those acquitted of a federal offense by reason of insanity have not been able to challenge their psychiatric confinement through a writ of habeas corpus or other remedies. In Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004), the U.S. Court of Appeals for the Eighth Circuit the court ruled persons found not guilty by reason of insanity and later want to challenge their confinement may not attack their initial successful insanity defense:

The appellate court affirmed the lower court’s judgment: "Having thus elected to make himself a member of that ‘exceptional class’ of persons who seek verdicts of not guilty by reason of insanity...he cannot now be heard to complain of the statutory consequences of his election." The court held that no direct attack upon the final judgment of acquittal by reason of insanity was possible. It also held that the collateral attack that he was not informed that a possible alternative to his commitment was to ask for a new trial was not a meaningful alternative.[3]


Incompetency and Mental Illness

An important distinction to be made is the difference between competency and criminal responsibility.

  • The issue of competency is whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and whether or not to plead guilty or accept a plea agreement. This issue is dealt with in UK law as "fitness to plead".
  • Criminal responsibility, however, deals with whether a defendant can be held legally responsible for his criminal behavior.

Competency largely deals with the defendant's present condition, while criminal responsibility addresses the condition at the time the crime was committed.

In the United States, a trial in which the insanity defense is invoked typically involves the testimony of psychiatrists or psychologists who will present opinions on the defendant's state of mind at the time of the offense. Mental health practitioners are restrained from making a judgment on the issue of whether the defendant is or is not insane or what is known as the "ultimate issue".[4]

Insanity is a legal concept, not a psychiatric concept of mental illness. Whether a person has a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve them from all responsibility for illegal acts they may commit. A person may have a mental disorder and be a competent person in many other ways, able to write checks, handle his personal affairs, hold a job and carry on a variety of behaviors despite the mental disorder. Likewise, a person may commit a criminal act, independent of the fact that he has a mental disorder. Depending on the jurisdiction, other elements need to be proven, for the court to accept that the mental disorder was responsible for the criminal act, that is, it must be shown that the defendant committed the crime because of the mental disorder. For example, the mental disorder interfered with his ability to determine right from wrong at the time the offense was committed.

It would unduly stigmatize a person with a diagnosed mental illness to say that because of the mental illness he is not responsible for his behavior. Therefore, persons whose mental disorder is not in dispute will be determined sane as the court will decide that despite a "mental illness" the defendant was responsible for the acts he committed and he will be treated in court as a normal defendant. If the person has a mental illness and it is determined that the mental illness interfered with the person's ability to determine right from wrong, and other associated criteria a jurisdiction may have, and if the person is willing to plead guilty or is proven guilty in a court of law, some jurisdiction have an alternative option known as either a Guilty but Mentally Ill (GBMI) or a Guilty but Insane verdict. The GBMI verdict is available as an alternative to, rather than in lieu of, a "not guilty by reason of insanity" verdict.[5]

Michigan (1975) was the first state to create a GBMI verdict. Sometimes a person without mental illness can be found to be insane; for example, a person who is acting under the influence of a drug that was involuntarily administered (though voluntary intoxication has been rejected by most jurisdictions as a defense to crime). (See: Intoxication defense)

History of the insanity defense

The concept of defense by insanity has existed since ancient Greece and Rome. However, in colonial America a delusional Dorothy Talbye was hanged in 1638 for murdering her daughter, as at the time Massachusetts's common law made no distinction between insanity (or mental illness) and criminal behavior.[6] Edward II, under English Common law, declared that a person was insane if their mental capacity was no more than that of a "Wild Beast". The first complete transcript of an insanity trial dates to 1724. The fate of insane defendants was uncertain in the United Kingdom until the Criminal Lunatics Act 1800, following the acquittal of James Hadfield, provided for their indefinite detention. The insanity plea was codified in English law with the M'Naghten Rules of 1843, which were formulated as a result of the attempted assassination of British Prime Minister Robert Peel. The rules define the defense as "at the time of the commission of the acts constituting the offense, the defendant as a result of a severe mental disease or defect, was unable to appreciate the nature and quality of the wrongfulness of his acts." The key is that the defendant could not appreciate the nature of his actions during the commission of the crime.

In Ford v. Wainwright 477 U.S. 399 (1986), the US Supreme Court upheld the common law rule that the insane cannot be executed. It further stated that a person under the death penalty is entitled to a competency evaluation and to an evidentiary hearing in court on the question of his competency to be executed.[7] In Wainwright v. Greenfield, the Court ruled that it was fundamentally unfair for the prosecutor to comment during the court proceedings on the petitioner's silence invoked as a result of a Miranda warning. The prosecutor had argued that the respondent's silence after receiving Miranda warnings was evidence of his sanity.[8]

Controversy over the insanity defense

There are many different interpretations of "insane" and many different notions of how to deal with insane individuals.

Some opponents of the insanity defense, including Thomas Szasz, Jeffrey Schaler and Richard Vatz, claim that "insanity" is a mythical construction designed to relieve lawbreakers from criminal responsibility. Some believe as well that psychiatry itself largely emerged as a way to justify mercy, of making persons "exceptional" and thus not deserving of the harsh punishment we would as a society wish to dole out to people who simply had self-serving rationales for their actions. Since extreme selfishness ("self-absorption") or broadly shared resentments (e.g. envy of the rich, hatred of another ethnic group) are somewhat infectious behaviors, some argue that other "mental illness" were defined into existence to protect those whose motives and behaviors were not so infectious, and whose offenses were thus unlikely to be repeated by others. The cost of this system of mercy, however, was to classify the psychiatrist and patient in an ongoing unequal power relationship (See anti-psychiatry).

In ancient Rome, Latin tribes held various religious beliefs that included considering the insane to be divinely blessed, and therefore beyond the reach of human jurisdiction. It is alleged that insanity as an excuse was introduced in the ancient Roman legal system based upon this tradition. Some modern critics claim that this precedent precludes the insanity defense's validity in a modern secular state like the United States.

The public tends to believe that the insanity defense is used more often than it actually is, possibly because insanity defense cases tend to be of a high-profile nature. The insanity plea is used in the U.S Criminal Justice System in less than 1% of all criminal cases.[9] Much information is unknown about the criminal justice system and the mentally ill:

It should be noted, however, that there is no definitive study regarding the percentage of people with mental illness who come into contact with police, appear as criminal defendants, are incarcerated, or are under community supervision. Furthermore, the scope of this issue varies across jurisdictions. Accordingly, advocates should rely as much as possible on statistics collected by local and state government agencies.[9]

Some U.S. states have begun to ban the use of the insanity defense and a 1994 Supreme Court ruling upheld the right of Montana to do so. Idaho and Utah have also banned the defense. In 2006, the Supreme Court decided Clark v. Arizona upheld Arizona's use of the insanity defense.

Rules of appreciation

In this section, various rules applied in United States jurisdiction with respect to insanity defenses are discussed.

The M'Naghten Rules

The guidelines for the M'Naghten Rules (1843) 10 C & F 200, state, inter alia, and evaluating the criminal responsibility for defendants claiming to be insane were codified in the British courts in the case of Daniel M'Naughten in 1843. M'Naughten was a Scottish woodcutter who murdered the secretary to the prime minister, Sir Robert Peel, in a botched attempt to assassinate the prime minister himself. M'Naughten apparently believed that the prime minister was the architect of the myriad of personal and financial misfortunes that had befallen him. During his trial, nine witnesses testified to the fact that he was insane, and the jury acquitted him, finding him "not guilty by reason of insanity."

The House of Lords asked the judges of the common law courts to answer five questions on insanity as a criminal defence,[10][11] and the formulation that emerged from their review—that a defendant should not be held responsible for his actions only if, due to his mental disease or defect, he (i) did not know that his act would be wrong; or (ii) did not understand the nature and quality of his actions—became the basis of the law governing legal responsibility in cases of insanity in England. Under the rules, loss of control because of mental illness was no defense. The M'Naughten rule was embraced with almost no modification by American courts and legislatures for more than 100 years, until the mid-20th century. In 1998, 25 states plus the District of Columbia still used versions of the M'Naughten rule to test for legal insanity.

Irresistible Impulse

One of the major criticisms of the M'Naughten rule is that, in its focus on the cognitive ability to know right from wrong, it fails to take into consideration the issue of control "irresistible impulse". Psychiatrists agree that it is possible to understand that one's behavior is wrong, but still be unable to stop oneself. To address this, some states have modified the M'Naughten test with an "irresistible impulse" provision, which absolves a defendant who can distinguish right and wrong but is nonetheless unable to stop himself from committing an act he knows to be wrong. (This test is also known as the "policeman at the elbow" test: Would the defendant have committed the crime even if there were a policeman standing at his elbow?).

The Durham/New Hampshire Test

The strict M'Naghten standard for the insanity defense was used until the 1950s and the Durham v. United States case. In the Durham case, the court ruled that a defendant is entitled to acquittal if the crime was the product of his mental illness (i.e., crime would not have been committed but for the disease). The test, also called the Product Test, is broader than either the M'Naghten test or the irresistible implulse test. The test has much more lenient guideline for the insanity defense, but it addressed the issue of convicting mentally ill defendants, which was allowed under the M'Naghten Rule. However, the Durham standard drew much criticism because of its expansive definition of legal insanity.

American Law Institute Model

The Model Penal Code, published by the American Law Institute, provided a standard for legal insanity that was a compromise between the strict M'Naghten Rule, the lenient Durham ruling, and the irresistible impulse test. Under the MPC standard, which represents the modern trend, a defendant 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 of his conduct or to conform his conduct to the requirements of the law." The test thus takes into account both the cognitive and volitional capacity of insanity.

The Brawner rule

The Brawner Rule, from the case of United States v. Brawner, 471 F.2d 969 (1972) by the United States Court of Appeals for the District of Columbia Circuit, set aside the Durham ruling arguing the ruling’s requirement that a crime must be a “product of mental disease or defect” placed the question of guilt on expert witnesses and diminished the jury’s role in determining guilt. Under this proposal, juries are allowed to decide the "insanity question" as they see fit. Basing its ruling on the American Law Institute’s (ALI) Model Penal Code, the court ruled that for a defendant not to be criminally guilty for a crime the defendant, “(i) lacks substantial capacity to appreciate that his conduct is wrongful, or (ii) lacks substantial capacity to conform his conduct to the law.”

It is noteworthy that this case was (1) decided by the U.S. Court of Appeals for the District of Columbia circuit and not the United States Supreme Court, and is thus not a national precedent, and (2) not based on constitutional arguments and was thus superseded by Congress in 1984 with the Insanity Defense Reform Act of 1984.

The Insanity Defense Reform Act of 1984 (U.S.)

After John Hinckley Jr.'s acquittal, members of Congress responded to the public outrage by introducing 26 separate pieces of legislation designed to abolish or modify the insanity defense. At the time of Hinckley's trial, all but one federal circuit had adopted the A.L.I. "substantial capacity" test, and all the new proposals were aimed at creating a stricter federal standard that would avoid acquittals like Hinckley's in the future.

The debates on this legislation reflected the public's indignation over the Hinckley decision. Sen. Strom Thurmond criticized the insanity defense for "exonerat[ing] a defendant who obviously planned and knew exactly what he was doing." Sen. Dan Quayle claimed that the insanity defense "pampered criminals," allowing them to kill "with impunity."

This hyperbolic testimony was countered by psychiatric and legal professionals who called for the modification, rather than the total abolition, of the insanity defense, and ultimately the resulting legislation—the Insanity Defense Reform Act of 1984—was somewhat of a compromise. The insanity defense was not abolished, but the A.L.I. test was discarded in favor of a stricter version that more closely resembled M'Naughten. To qualify, an insanity defendant must show the mental disease or defect is "severe." The "volitional" prong of the test, which excused a defendant who lacked the capacity to control his behavior, was eliminated. In effect, Congress returned to the 19th century "right/wrong" standard, echoing Queen Victoria's response to the M'Naughten acquittal.

Congress also adopted a number of provisions that toughened procedural barriers to a successful insanity defense. Before Hinckley, the burden of proof in federal cases was on the prosecution to prove beyond a reasonable doubt that a defendant was sane. The post-Hinckley reform legislation shifted the burden to the defendant to prove with clear and convincing evidence that he was legally insane at the time of the crime. The scope of expert psychiatric testimony was severely limited, and stricter procedures governing the hospitalization and release of insanity acquittees were adopted.

The Insanity Defense Reform Act mirrors the M'Naughten rules except that it requires the defendant suffer from severe mental defect, and places the burden on the defendant to prove by clear and convincing evidence (higher than the preponderance of the evidence standard required of the defendant by most states following the M'Naughten Rules).

The substantial capacity test

The substantial capacity test was defined by the American Law Institute, in its Model Penal Code. This argues that insanity should be defined as a lack of substantial capacity to control one's behavior. Substantial capacity is defined as: "the mental capacity needed to understand the wrongfulness of [an] act, or to conform...behavior to" This is related to the M'Naghten Rule and the idea of 'irresistible impulse'.

Temporary insanity

The notion of temporary insanity argues that a defendant was insane, but is now sane. A defendant found to have been temporarily insane will often be released without any requirements of psychiatric treatment. This defense was first used by U.S. Congressman Daniel Sickles of New York in 1859 after he had killed his wife's lover, Philip Barton Key, but was most used during the 1940s and 1950s. Another case around that time was that of Charles J. Guiteau, who assassinated President James Garfield in 1881.

Scottish law

The Scottish Law Commission in its Discussion Paper No 122 on Insanity and Diminished Responsibility (2003) [1] pp. 16/18 confirms that the law has not substantially changed from the position stated in Hume's Commentaries:

We may next attend to the case of those unfortunate persons, who have plead the miserable defense of idiocy or insanity. Which condition, if it is not an assumed or imperfect, but a genuine and thorough insanity, and is proved by the testimony of intelligent witnesses, makes the act like that of an infant, and equally bestows the privilege of an entire exemption from any manner of pain; Cum alterum innocentia concilii tuetur, alterum fati infelicitas excusat. I say, where the insanity is absolute, and is duly proved: For if reason and humanity enforce the plea in these circumstances, it is no less necessary to observe a caution and reserve in applying the law, as shall hinder it from being understood, that there is any privilege in a case of mere weakness of intellect, or a strange and moody humor, or a crazy and capricious or irritable temper. In none of these situations does or can the law excuse the offender. Because such constitutions are not exclusive of a competent understanding of the true state of the circumstances in which the deed is done, nor of the subsistence of some steady and evil passion, grounded in those circumstances, and directed to a certain object. To serve the purpose of a defense in law, the disorder must therefore amount to an absolute alienation of reason, ut continua mentis alienatione, omni intellectu careat - such a disease as deprives the patient of the knowledge of the true aspect and position of things about him - hinders him from distinguishing friend from foe - and gives him up to the impulse of his own distempered fancy.

The phrase "absolute alienation of reason" is still regarded as at the core of the defense in the modern law (see HM Advocate v Kidd 1960 JC 61 and Brennan v HM Advocate (1977) JC 38).

Usage and success rate

Media coverage in the United States tends to dictate how situations are perceived by the public. A case using the insanity defense usually receives a lot more media attention because it is considered unusual or dramatic. This increased coverage gives the impression that the defense is widely used but this is not the case. According to an eight-state study the insanity defense is used in less than 1% of all court cases and is only successful in 26% of cases. Of those cases that were successful, 90% of defendants had been previously diagnosed with mental illness. [12] The early-2000s cases of Lee Boyd Malvo and Andrea Yates are examples of high-profile use of the insanity defense; both are characterised by their dramatic circumstances.

See also


  1. ^ "Federal Insanity Acquittees". Journal of the American Academy of Psychiatry and the Law. 2005. Retrieved 2007-10-19. 
  2. ^ Irving B. Weiner (2003). Handbook of Psychology. Wiley. pp. 363. ISBN 978-0471176695. Retrieved 2008-01-01. 
  3. ^ "Federal Insanity Acquittees - Person Found Not Guilty by Reason of Insanity May Not Attack His Successful Insanity Defense in Habeas Petition". Journal of the American Academy of Psychiatry and the Law. Retrieved 2007-10-11. 
  4. ^ Shapiro, David L. (1991). Forensic Psychological Assessment: An Integrative Approach. Needham Heights, MA: Simon & Schuster. pp. 69. ISBN 0-205-12521-2. 
  5. ^ Bonnie, Richard J.; Coughlin, Anne M. (1997). Criminal Law. The Foundation Press. pp. 537. ISBN 1-56662-448-7. 
  6. ^ Albert Christophe. The Romantic Story of the Puritan Fathers: And Their Founding of NewBoston.,M1. Retrieved 2007-11-14. 
  7. ^ "Ford v. Wainwright 477 U.S. 399". Cornell Law School. Retrieved 2007-10-04. 
  8. ^ The American Dictionary of Criminal Justice: Key Terms and Major Court Cases. Scarecrow Press. Retrieved 2007-10-06. 
  9. ^ a b "The Advocacy Handbook - FAQ". Retrieved 2007-10-12. 
  10. ^ Carl Elliott, The rules of insanity: moral responsibility and the mentally ill offender, SUNY Press, 1996, ISBN 0791429512, p.10
  11. ^ Michael T. Molan, Mike Molan, Duncan Bloy, Denis Lanser, Modern criminal law (5 ed), Routledge Cavendish, 2003, ISBN 1859418074, p.352
  12. ^ Schmalleger, Frank (2001). Criminal Justice: A Brief Introduction. Prentice Hall. ISBN 0130887293. 


  • Dalby, J. T. (2006). "The case of Daniel McNaughton: Let's get the story straight". American Journal of Forensic Psychiatry 27: 17–32. .
  • Walker, N. (1968). Crime and Insanity in England:The Historical Perspective. vol.1, Edinburgh University Press. ISBN 0-85224-017-1. , pp15–16.
  • - (1985). "The Insanity Defense before 1800". The Annals of the American Academy of Political and Social Science 477: 25. doi:10.1177/0002716285477001003.  at p. 30
  • Schmalleger, Frank (2001). Criminal Justice: A Brief Introduction. Prentice Hall. ISBN 013396731X. 

Further reading

  • Boland, F. (1996). "Insanity, the Irish Constitution and the European Convention on Human Rights". 47 Northern Ireland Legal Quarterly 260.
  • Brown, M. (2007). "The John Hinckley Trial & Its Effect on the Insanity Defense".
  • Bucknill, J. C. (1881). "The Late Lord Chief Justice of England on Lunacy". Brain 4: 1–26. doi:10.1093/brain/4.1.1+. 
  • Butler Committee. (1975). The Butler Committee on Mentally Abnormal Offenders, London: HMSO, Cmnd 6244
  • Ellis, J. W. (1986). "The Consequences of the Insanity Defense: Proposals to reform post-acquittal commitment laws". 35 Catholic University Law Review 961.
  • Gostin, L. (1982). "Human Rights, Judicial Review and the Mentally Disordered Offender". (1982) Crim. LR 779.
  • The Law Reform Commission of Western Australia. The Criminal Process and Persons Suffering from Mental Disorder, Project No. 69, August 1991. [2]

External links


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