The Insanity Defense

For the serious discussion of weighty matters and worldly issues. No off-topic posts allowed.

Moderators: Azrael, Moderators General, Prelates

User avatar
Telchar
That's Admiral 'The Hulk' Ackbar, to you sir
Posts: 1937
Joined: Sat Apr 05, 2008 9:06 pm UTC
Location: Cynicistia

The Insanity Defense

Postby Telchar » Mon Jun 21, 2010 7:45 pm UTC

There was a thread on this a long time ago here but I didn't want to necro a thread from 2007.

The basic discussion I'd like ot have is whether or not the insanity defense should exist and what standard should we use to evaluate legal insanity?

For some quick background, I'd suggest the wiki article here.

My take: I think abolishing the plea and verdict of insanity, guilty or not guilty, would be better. Having it as an option for defense would still be around, but the verdicts essentially don't mean anything different than guilty/not guilty and the pleas make determinations of insanity more about legal proccess and less about evaluation. I also prefer the Brawner rule as opposed to M'Naghten or the federal standard.
Zamfir wrote:Yeah, that's a good point. Everyone is all about presumption of innocence in rape threads. But when Mexican drug lords build APCs to carry their henchmen around, we immediately jump to criminal conclusions without hard evidence.

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Mon Jun 21, 2010 8:37 pm UTC

Going back to general concepts of criminal law, there are three required elements of a crime:
1) A physical act (Actus Rea)
2) A mental state (Mens Rea)
3) Concurrence of the act and the mental state

There are four different mental state standards used in criminal law. The mental state standard used will depend on what crime the defendant is charged with. These mental states are:
1) Specific Intent
2) General Intent
3) Malice
4) Strict Liability

So, what does this mean? For a defendant to be found guilty of a crime, the defendant will most likely have to have to intentionally committed the act. If a defendant is of unsound mind, the defendant may not have been able to intentionally commit the act either by not knowing what they were doing or by not understanding the consequences of the act.

Clearly, it's important for a defendant to be able to plead insanity since mental state is such an important part of criminal acts. But why does it have to be pled? A few different reasons. First, defendants are presumed sane and it is the burden of the defendant to raise insanity as a defense. Second, there are due process considerations when prosecuting a defendant of unsound mind. A person can't be expected to mount a defense if they are not well.

OK, but why are there different standards used? Well, there are 52 different jurisdictions in this country (The 50 states, DC and the Federal courts) and each of them gets to decide what standard to use. There are going to be differences. Each standard has its upsides and downsides.

In short, the insanity defense is necessary and while it would probably be simpler to have a single standard, it's not going to happen for a while, if ever.
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who

User avatar
Telchar
That's Admiral 'The Hulk' Ackbar, to you sir
Posts: 1937
Joined: Sat Apr 05, 2008 9:06 pm UTC
Location: Cynicistia

Re: The Insanity Defense

Postby Telchar » Mon Jun 21, 2010 8:47 pm UTC

1)You can still use insanity as a defense without having to plead Not Guilty be reason of insanity. It's done succesfully in 3 states.

2) The due proccess concerns are dealt with in a competence hearing anyway and aren't tied to a plea.

3) The burden being on the defendent in cases of insanity is something that's uniquely American to my understanding and could certaintly be changed back to pre-1984 standards.
Zamfir wrote:Yeah, that's a good point. Everyone is all about presumption of innocence in rape threads. But when Mexican drug lords build APCs to carry their henchmen around, we immediately jump to criminal conclusions without hard evidence.

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Mon Jun 21, 2010 11:40 pm UTC

Telchar wrote:1)You can still use insanity as a defense without having to plead Not Guilty be reason of insanity. It's done succesfully in 3 states.


Montana, Idaho, and Utah have abolished the plea of not guilty by reason of insanity. In those states, the defendant will still show that they did not possess mens rea necessary to commit the crime, which is fundamentally the same thing. However, Montana, Idaho, and Utah also have some of the strictest standards in the country as to what constitutes insanity, as well as some of the most limited jury instructions when it comes to a finding of "not guilty by reason of insanity" or "guilty but mentally ill." State v. Drej, 2010 UT 35 (Utah, 2010). Additionally, from an advocacy perspective, the defense can make a stronger case when they have the benefit of an affirmative defense.

Telchar wrote:2) The due proccess concerns are dealt with in a competence hearing anyway and aren't tied to a plea.


Yes, they are two separate issues but when insanity is brought up, it's also going to bring up a competence issue as well.

Telchar wrote:3) The burden being on the defendent in cases of insanity is something that's uniquely American to my understanding and could certaintly be changed back to pre-1984 standards.


All countries whose laws are based upon British common law (i.e. Australia, Canada, England and Wales, Hong Kong, New Zealand, the Republic of Ireland, and the US) have an insanity defense that originated from the M'Naghten case, with many of those countries still using the M'Naghten standard. Under British common law, sanity is a rebuttable presumption and it's generally left to the defendant to rebut that presumption.
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who

User avatar
Telchar
That's Admiral 'The Hulk' Ackbar, to you sir
Posts: 1937
Joined: Sat Apr 05, 2008 9:06 pm UTC
Location: Cynicistia

Re: The Insanity Defense

Postby Telchar » Tue Jun 22, 2010 12:04 am UTC

MiB24601 wrote:
Telchar wrote:1)You can still use insanity as a defense without having to plead Not Guilty be reason of insanity. It's done succesfully in 3 states.


Montana, Idaho, and Utah have abolished the plea of not guilty by reason of insanity. In those states, the defendant will still show that they did not possess mens rea necessary to commit the crime, which is fundamentally the same thing. However, Montana, Idaho, and Utah also have some of the strictest standards in the country as to what constitutes insanity, as well as some of the most limited jury instructions when it comes to a finding of "not guilty by reason of insanity" or "guilty but mentally ill." State v. Drej, 2010 UT 35 (Utah, 2010). Additionally, from an advocacy perspective, the defense can make a stronger case when they have the benefit of an affirmative defense.


None of that is intrinsic to the abolition of the plea, it's just bad legislation. Also, having the burden of proof shifted to the defense is, generally speaking, a bad thing for the defense. Especially in federal cases where the standard of proof is much higher in such cases.

From a policy standpoint, it makes no sense to differentiate. NGBRI is still not guilty. It also helps to perpetuate a stigma associated with many mental illnesses which is why the AMA has come out against abolishing the plea/verdict. Also, according to recent policy, the ammount of expert psychological testimony is limited due to public outcry over one case.

Yes, they are two separate issues but when insanity is brought up, it's also going to bring up a competence issue as well.


It certaintly brings up issues, and those issues would be brought up in a competency hearing. This happens now with and without insanity defenses.

All countries whose laws are based upon British common law (i.e. Australia, Canada, England and Wales, Hong Kong, New Zealand, the Republic of Ireland, and the US) have an insanity defense that originated from the M'Naghten case, with many of those countries still using the M'Naghten standard. Under British common law, sanity is a rebuttable presumption and it's generally left to the defendant to rebut that presumption.


I stand corrected. At least in federal cases in the US pre-1984, the onnus was on the prosecution. There is no reason to think that we couldn't have that again or that having that again would suddenly flood the system with NGBRI pleas.
Zamfir wrote:Yeah, that's a good point. Everyone is all about presumption of innocence in rape threads. But when Mexican drug lords build APCs to carry their henchmen around, we immediately jump to criminal conclusions without hard evidence.

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Tue Jun 22, 2010 12:49 am UTC

Telchar wrote:None of that is intrinsic to the abolition of the plea, it's just bad legislation. Also, having the burden of proof shifted to the defense is, generally speaking, a bad thing for the defense. Especially in federal cases where the standard of proof is much higher in such cases.


Having the burden move to the defendant certainly is difficult but that's independent of the plea. There are courts with the plea that have the burden on the prosecution, there are courts without the plea that have the burden on the defendant and there are courts without the plea that have the burden on the defendant. Having the plea isn't what makes demonstrating lack of mena rea by reason of insanity difficult. Additionally, the standard of proof generally isn't higher in federal courts. As I mentioned earlier, the highest burden and most limited standard are in some of the state courts.

Telchar wrote:From a policy standpoint, it makes no sense to differentiate. NGBRI is still not guilty. It also helps to perpetuate a stigma associated with many mental illnesses which is why the AMA has come out against abolishing the plea/verdict. Also, according to recent policy, the ammount of expert psychological testimony is limited due to public outcry over one case.


As you said, the AMA has come out against the plea/verdict. And as you also said, the reason they came out against it has nothing to do with criminal procedure. From a procedural standpoint, the defendant has the strongest case when they can use an affirmative defense. You pointed out the three states that have eliminated the use of the plea as an affirmative defense and those are the states where it is nearly impossible to be acquitted for being mentally unsound. Yes, there is a stigma involved with the plea/verdict but eliminating it merely makes it more difficult for those who actually need it to be acquitted.

Telchar wrote:It certaintly brings up issues, and those issues would be brought up in a competency hearing. This happens now with and without insanity defenses.


Yes, but when using an insanity plea, it allows defense counsel to consolidate the motions in a way that can't be done otherwise. Again, while the issues can still be brought up when the plea has been eliminated, from an advocacy standpoint, there are advantages from being able to argue from the standpoint of an affirmative defense.

Telchar wrote:I stand corrected. At least in federal cases in the US pre-1984, the onnus was on the prosecution. There is no reason to think that we couldn't have that again or that having that again would suddenly flood the system with NGBRI pleas.


It's really not that much better to use the insanity defense. It's not like you will just go free after the jury announces the verdict. I saw some statistics not too long ago (I've been trying to find it and I post it when I do) that defendant's who use an insanity defense will by in the hospital at least as long as they would be in prison, if not longer. As for the burden of proof, that is again independent of the plea itself. If you look at the federal statute, you'll see that it's two separate parts that establish the affirmative defense and the burden of proof. One could overturn the burden of proof statute without touching the affirmative defense statute in the slightest.
Last edited by MiB24601 on Tue Jun 22, 2010 3:05 am UTC, edited 1 time in total.
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who

User avatar
Telchar
That's Admiral 'The Hulk' Ackbar, to you sir
Posts: 1937
Joined: Sat Apr 05, 2008 9:06 pm UTC
Location: Cynicistia

Re: The Insanity Defense

Postby Telchar » Tue Jun 22, 2010 2:53 am UTC

MiB24601 wrote:Having the burden move to the defendant certainly is difficult but that's independent of the plea. There are courts with the plea that have the burden on the prosecution, there are courts without the plea that have the burden on the defendant and there are courts without the plea that have the burden on the defendant. Having the plea isn't what makes demonstrating lack of mena rea by reason of inanity difficult. Additionally, the standard of proof generally isn't higher in federal courts. As I mentioned earlier, the highest burden and most limited standard are in some of the state courts.


1. Inanity defense. Lol.

2.From the wiki
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).


3. I'll concede that arguing from an affirmative position is easier. However, the ease of the position is a red herring. The issue isn't whether or not legally insane people can be found as such in courts, but what legal insanity represents and how you judge that. Hence why I've repeatedly brought up the standard of evidence and insanity requirement rules.

As you said, the AMA has come out against the plea/verdict. And as you also said, the reason they came out against it has nothing to do with criminal procedure. From a procedural standpoint, the defendant has the strongest case when they can use an affirmative defense. You pointed out the three states that have eliminated the use of the plea as an affirmative defense and those are the states where it is nearly impossible to be acquitted for being mentally unsound. Yes, there is a stigma involved with the plea/verdict but eliminating it merely makes it more difficult for those who actually need it to be acquitted.


1.It has everything to do with criminal procedure in cases which plead insanity.
2.You keep talking about how these 3 states have poor track records with cases whose defense includes insanity, but you already pointed out that that is independent of them abolishing the plea and verdict. You could just as easily change existing legislation to have better jury instruction and use the Brawner rule and the system would be fine.

Yes, but when using an insanity plea, it allows defense counsel to consolidate the motions in a way that can't be done otherwise. Again, while the issues can still be brought up when the plea has been eliminated, from an advocacy standpoint, there are advantages from being able to argue from the standpoint of an affirmative defense.


I addressed this earlier, but I'll still leave it here for completeness.

It's really not that much better to use the insanity defense. It's not like you will just go free after the jury announces the verdict. I saw some statistics not too long ago (I've been trying to find it and I post it when I do) that defendant's who use an insanity defense will by in the hospital at least as long as they would be in prison, if not longer. As for the burden of proof, that is again independent of the plea itself. If you look at the federal statute, you'll see that it's two separate parts that establish the affirmative defense and the burden of proof. One could overturn the burden of proof statute without touching the affirmative defense statute in the slightest.


I'm not arguing the merits of the insanity defense and whether or not it's successful (it's not and that's partially why I think the plea should be abolished). It's also my understanding that while a judge may recommend civil commitment proceedings be started after someone is judged to be NGBRI, those civil commitment proceedings still have to take place. Essentially, NGBRI is still just not guilty.

Honest Question: Does the burden of proof change for any other defense of mens rea? Are there limitations on testimony of experts for any other defense using mens rea? Also, my understanding is that requiring the defense to prove their case instead of the prosecutor proving the defendant sane is what constitutes an affirmative case (ie: I'm proving/affirming that my client is insane vs disproving that he's not sane).

The argument I'm trying to make is that insanity isn't any different than any other defense, and yet we have a bizarre set of rules created specifically for just this unique and small set of cases. We also have conflicting standards of proof (based on the sometimes unclear information that comes from psychology and it's penchant, particularly in forensic psychology to be biased) that need some unification similar to standards of evidence.
Zamfir wrote:Yeah, that's a good point. Everyone is all about presumption of innocence in rape threads. But when Mexican drug lords build APCs to carry their henchmen around, we immediately jump to criminal conclusions without hard evidence.

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Tue Jun 22, 2010 4:07 am UTC

Telchar wrote:From the wiki
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 Utah case I cited earlier, State v. Drej, 2010 UT 35 (Utah, 2010), upholds the standard used in Montana, Idaho, and Utah. State v. Drej, 2010 UT 35 (Utah, 2010). For a defendant to be found Not Guilty By Reason of Insanity in those states, the defendant must not have the ability to form the intent to kill a human being. This is the highest standard in the nation when it comes for what constitutes insanity and the Utah Supreme Court acknowledges that Utah has an extremely limited standard in the case.

You seem to be arguing a burden of proof standard. That's not what I'm talking about. I'm referring to the actual standard used in the legal definition of insanity.

Telchar wrote:I'll concede that arguing from an affirmative position is easier. However, the ease of the position is a red herring. The issue isn't whether or not legally insane people can be found as such in courts, but what legal insanity represents and how you judge that. Hence why I've repeatedly brought up the standard of evidence and insanity requirement rules.


It can get very confusing when applying a legal conclusion, such as insanity or guilt, to a party when the entire subject at hand is that legal conclusion so we should probably stay away from sentences like "finding insane people insane." As for what the issue is, I'm not exactly sure what you are arguing. You said in the original post that you thought that the insanity defense should be eliminated and which standard, either M'Naghten, Irresistible Impulse, Durham or something else should be used. Burden of proof doesn't fall under those strictures.

Now, if you want to talk burden of proof, that's fine. However, you already stated that you want the burden to be on the prosecution so for pretty much every jurisdiction, the burden of proof on the defendant pleading insanity is already more severe than you would like. For your preference to be used, most jurisdictions will need to change their relevant criminal statutes

Telchar wrote:It has everything to do with criminal procedure in cases which plead insanity.


You stated that the AMA wanted to abolish the pleading because it "helps to perpetuate a stigma associated with many mental illnesses." Please explain to me what that has to do with procedural process in the criminal courts because I'm not seeing it.

Telchar wrote:You keep talking about how these 3 states have poor track records with cases whose defense includes insanity, but you already pointed out that that is independent of them abolishing the plea and verdict. You could just as easily change existing legislation to have better jury instruction and use the Brawner rule and the system would be fine.


No, you can't have better jury instructions because that would disregard the standard covering insanity in those states. When those states removed insanity as an affirmative defense, the resulting default standard in the criminal code was much more limited. Go back over what I wrote before. As I said before, '[h]aving the plea isn't what makes demonstrating lack of mens rea by reason of insanity difficult," but it also seems that NOT having the plea does make it difficult to demonstrate lack of mens rea by reason of insanity difficult.

It doesn't look like removing insanity as an affirmative defense was done to make things better for mentally unsound defendants. It's telling that all the states that did remove the plea are also the states where insanity is least likely to be successful as a defense.

Telchar wrote:I'm not arguing the merits of the insanity defense and whether or not it's successful (it's not and that's partially why I think the plea should be abolished). It's also my understanding that while a judge may recommend civil commitment proceedings be started after someone is judged to be NGBRI, those civil commitment proceedings still have to take place. Essentially, NGBRI is still just not guilty.


If you want to discuss if the insanity defense should exist then clearly you would want to argue its merits. Why eliminate something that has merit or keep in use something that is a failure. If we want to cover that, then we will need to go over the merits of the insanity defense. And as for the defendant being committed following being found Not Guilty by Reason of Insanity, you may want to read the relevant federal statute. If a defendant is found Not Guilty by Reason of Insanity, then they will be hospitalized upon completion of the trial.

Telchar wrote:Honest Question: Does the burden of proof change for any other defense of mens rea? Are there limitations on testimony of experts for any other defense using mens rea? Also, my understanding is that requiring the defense to prove their case instead of the prosecutor proving the defendant sane is what constitutes an affirmative case (ie: I'm proving/affirming that my client is insane vs disproving that he's not sane).


I have my pocket copy of Black's Law Dictionary right next to me and it defines an affirmative defense as "a defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." It can also be described as the defendant saying "everything the other guy said is true but you should find for me because of _______." The burden of proof for affirmative defenses will really depend on what the defense is, what the charge is and what the jurisdiction is. For some cases, merely claiming an affirmative defense is sufficient for a party to prevail (e.g. some types of defamation cases involving public individuals only requires the existence of an affirmative defense).

Most affirmative defenses will shift the burden to the defendant. Mistake of fact, Self-Defense, Estoppel, Waiver, all of those shift the burden to the defendant and I they're not the only ones that do. As for the use of experts, there are always limitations in the use of experts, and it will often come up when discussing affirmative defenses. It is always an issue when it appears that you are using an expert witness to cover a defendant's "character," even if the discussion seems indirect.

Telchar wrote:The argument I'm trying to make is that insanity isn't any different than any other defense, and yet we have a bizarre set of rules created specifically for just this unique and small set of cases. We also have conflicting standards of proof (based on the sometimes unclear information that comes from psychology and it's penchant, particularly in forensic psychology to be biased) that need some unification similar to standards of evidence.


No, the rules are quite bizarre for everything that has to do with law. I will agree that there was a major shift starting 25 years ago with the use of the insanity defense but in many jurisdictions, the standard isn't very different between insanity and any other affirmative defense. Now, for those jurisdictions, one could make the argument that those differences are reasonable and that there is no reason to change the standard but in the other jurisdictions, with the worst places being Montana, Idaho, and Utah, the difference in standard is completely unreasonable and should be changed.

By the way, you seem to really like the Brawner standard. However, it was never really used, as it was limited to one very small jurisdiction and was in place for a very short amount of time. What is it about the Brawner standard that makes you want to apply it as the universal rule?
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who

User avatar
Indon
Posts: 4433
Joined: Thu Oct 18, 2007 5:21 pm UTC
Location: Alabama :(
Contact:

Re: The Insanity Defense

Postby Indon » Tue Jun 22, 2010 3:21 pm UTC

MiB24601 wrote:In short, the insanity defense is necessary and while it would probably be simpler to have a single standard, it's not going to happen for a while, if ever.


If the insanity defense were somehow magically removed, do you think a general competency standard would replace it?
So, I like talking. So if you want to talk about something with me, feel free to send me a PM.

My blog, now rarely updated.

Image

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Mon Jun 28, 2010 8:24 pm UTC

Indon wrote:If the insanity defense were somehow magically removed, do you think a general competency standard would replace it?


What do you mean when you say "competency?" Telchar and I mentioned competency earlier but that had to do with competency to stand trial. While it is a separate issue from lacking mens rea due to being mentally unsound, an insanity plea begs the questions of competency as well, which was why it was discussed.

I'm guessing you mean some sort of standard as to whether the defendant was "competent" when it came to understanding their crime. In that case, let's try to stay away from using the term "competency" because that term is already being used to refer to something else. It would be better to ask whether the defendant had an "understanding" of their crime.

I mentioned earlier some issues of removing the insanity plea. If the insanity plea was removed but the standard used in those jurisdictions as to the defendant's understanding remained the same, then there would be some procedural due process issues. Those can be dealt with but the greater problem seems to be that removing the plea goes hand-in-hand with using a very strict standard as to the defendant's understanding. Now, it is possible to remove the plea and keep the standard the same but that hasn't been done. That's what the AMA wants to do and what it seems that Telchar wants to do and I can understand it. However, until defense attorneys can be sure that removing the insanity plea won't harm their clients, then let's keep those protections in place.
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who

Iceman
Posts: 667
Joined: Wed Mar 24, 2010 1:41 am UTC

Re: The Insanity Defense

Postby Iceman » Tue Jun 29, 2010 3:26 am UTC

I think it boils down to a fairly simple but fundamental change...

It should not be 'Innocent, by reason of Mental Insanity'

It should be 'Guilty, with mitigating circumstance of mental insanity'

Courts should determine Actus Rea first, then once established only then consider Mens Rea and whether it should mitigate the act.

User avatar
MiB24601
Posts: 714
Joined: Wed Sep 10, 2008 11:13 pm UTC
Location: Philadelphia, PA

Re: The Insanity Defense

Postby MiB24601 » Thu Jul 01, 2010 6:58 pm UTC

Iceman wrote:It should be 'Guilty, with mitigating circumstance of mental insanity'
Courts should determine Actus Rea first, then once established only then consider Mens Rea and whether it should mitigate the act.


The elements of all but strict liability crimes include the intent aspect (i.e. the elements of a crime include both the means rea and the actus rea aspects). How can a defendant be guilty of a crime when they don't meet all the elements of the crime?
"There's no point being grown-up if you can't be childish sometimes." - The Fourth Doctor, Doctor Who


Return to “Serious Business”

Who is online

Users browsing this forum: No registered users and 8 guests