insanity_mso_08 - Insanity MSO and Related Insanity MSO and...

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Unformatted text preview: Insanity, MSO, and Related Insanity, MSO, and Related Issues Russell M. Bauer, Ph.D. July 24, 2008 Mental State at Offense Mental State at Offense • One of the most difficult and bloodcurdling One difficult tasks of a forensic psychologist tasks – it is RETROSPECTIVE – MOTIVATIONAL factors affect current MOTIVATIONAL presentation presentation • Requires “investigative reconstruction” of crime events, often involving information psychologists are not used to reviewing are History of Insanity Defense History of Insanity Defense • Basic Concept: free will • Mc’Naghten Case (1840’s) – emphasizes cognitive Mc’Naghten understanding understanding • “Irresistable Impulse” rule – volitional control standard • Durham vs. United States: “product” of mental disease or Durham defect (1954); also known as the “but for” test defect • Am erican Law Institute Model Penal Code: cognition Am (appreciation) vs. volition (control) (appreciation) • 1984 Congress: wrongfulness appreciation • VERY rare defense (< l%, and of that, rarely successful) < Pre­M’Naghten Pre­M’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 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” what • M’Naghten committed to Bedlam, eventually died in eventually another hospital after decades of “treatment” another Example Example • Defendant bites another person because he Defendant believes him to be a piece of chicken (crime: battery) (crime: – Could prove insanity under Prong 1 • Defendant bites another person, knowing Defendant him to be a person, but not knowing that biting is painful and can injure the other person person – Could prove insanity under Prong 2 American Law Institute (ALI, 1955) American Law Institute (ALI, 1955) • A person is not responsible for criminal conduct if at the person time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the substantial either appreciate wrongfulness of his conduct or to conform his conduct to or the requirements of the law the • Changes from before – Change implication of “full” (did not know) to “substantial” Change (appreciate) (appreciate) – Change “know” to “appreciate” – Change “criminality” to “wrongfulness” – Essentially eliminated repeated acts in and of themselves (e.g., Essentially APD) A PD) “Irresistable Impulse” • The defendant is not legally responsible: – if by reason of the duress of mental disease he if 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 question – act the product of mental disease solely • Problem: how do you distinguish an Problem: “irresistable impulse” from an “impulse not resisted”? resisted”? Three Variations on Irresistable 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 Durham v. United States • Source of the “product test” – simply that “an accused is not criminally responsible if simply his unlawful act was the product of a mental disease or product defect” defect” • Problems: – what is a “product”? (i.e., what is the causative chain?) – Which mental diseases qualify? • Case eventually overturned; now of historical Case significance only significance State Interpretations State Interpretations • One-half use M’Naghten One-half • One-third of states use ALI • Three states have reference to “irresistable Three impulse” impulse” • Four states have abolished insanity defense Four altogether (Montana, Idaho, Utah, Kansas) altogether • NH: “product” of mental disease or defect” Generally Excluded Mental Generally Excluded Mental Disorders • Antisocial personality • Adjustment disorder • “Compulsive” disorders • Seizure disorders allowable in some Seizure jurisdictions, not in others jurisdictions, 1984 Congress (Insanity Defense 1984 Congress (Insanity Defense Reform Act) • Reform in response to Hinckley verdict (aquitted on Reform volitional prong of ALI) volitional • 1980’s ABA and APA standards: “A person is not 1980’s 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” conduct” • 1984 Congress adopts ABA standard (cognitive prong of 1984 ALI) A LI) – Defense has burden (affirmative defense) – clear and convincing evidence needed Unsuccessful Insanity Pleas Unsuccessful Insanity Pleas • Kip Kinkel, l7, shot 29 people in an Oregon school ram page in 1998; heard “com and” voices; abandoned insanity defense, got 25+years m • David Berkowitz, “Son of Sam killings NY C, sentenced to 365 years in ” jail • Ted Bundy; US serial killer l974-l978; responsible for an estim ated 40 m urders; executed in FL electric chair • Sirhan Sirhan: m urdered Robert Kennedy l968; convicted, sentenced to death; comm uted to life in prison • Henry Lee Lucas; serial m urderer in FL l982 • Charles Manson; cult leader; sentenced to death; CA suspends death penalty later • John Wayne Gacy, used DID defense; convicted of 33 m urders in l980; executed l994 • Ted Kaczynski, Unabom ber, thought to be suffering from paranoid schizophrenia; 4 consecutive life sentences • Jeffrey Dahmer; necrophilia, cannibalism l60-page ram , bling confession; convicted l992, killed in prison l994 A notable exception 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 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: R­CRAS What the Jury is Told (CA) What the Jury is Told (CA) • The defendant has been found guilty of the crime of _____. Y ou m now ust The determ whether [he] [she] was legally sane or legally insane at the tim of ine e the com mission of the crim This is the only issue for you to determ in e. ine this proceeding. • Y ou m consider evidence of [his] [her] mental condition before, during and ay after the tim of the com ission of the crime, as tending to show the e m defendant's m ental condition at the tim the crim was comm e e itted. • [Mental illness and m ental abnorm ality, in whatever form they m appear, ay [Mental are not necessarily the sam as legal insanity. A person may be m e entally ill or m entally abnormal and yet not be legally insane]. • A person is legally insane when by reason of mental disease or defect [he] person [she] was incapable of knowing or understanding the nature and quality of [his] [her] act or incapable of distinguishing right from wrong at the tim of e the com mission of the crim e. • The defendant has the burden of proving [his] [her] legal insanity at the tim e The of the com ission of the crim by a preponderance of the evidence. m e of Burden of Proof Burden of Proof • One-third of states require prosecution to One-third prove sanity “beyond reasonable doubt” (90-95%) (90-95%) • M ost remaining states require defendant to Most prove insanity by “preponderance of evidence” (5l%) evidence” • A Z and federal courts: defendant must AZ prove sanity by “clear and convincing” evidence (75%) evidence Basic Elements of Crime Behavior Basic Elements of Crime Behavior Relevant to Insanity Defense • physical conduct of crime (“actus reus”) • mental state (level of intent) associated with mental the crime (“mens rea”) the • to convice beyond reasonable doubt, state beyond to state must prove that the defendant committed the actus reus with the requisite mens rea for that crime crime Defenses Related to Sanity Defenses Related to Sanity • Automatism Defense – acts committed “involuntarily” – this is different from sanity • automatons are “unaware” (but will be held automatons responsible if ailment had previously existed and steps were not taken to prevent or manage it) steps • prosecution bears burden of negating automatism prosecution beyond reasonable doubt beyond • no mental disease or defect required Defenses Related to Sanity Defenses Related to Sanity • Diminished Capacity – mental state essentially defined culpability; planning a mental crime involves more intent than accidentally committing one committing – specific vs. general intent – Mens Rea components: • Purpose: conscious intent • Knowledge: awareness, but not conscious intent • Recklessness: disregarding a substantial and unjustifiable risk risk • Negligence: not aware of a risk, but should have been aware aware Defenses Related to Sanity Defenses Related to Sanity • Intoxication - generally not viewed positively by the courts unless accidental positively • 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 the MSO Evaluation MSO Evaluation • Place emphasis on information related to Place crime scenario (contains mens rea information) information) • Statements/confessions are important, but Statements/confessions must be treated with caution must • Brief MSE (for diagnosis) • Discuss crime with defendant • Prior records relevant to diagnosis Phases of MSO Evaluation Phases of MSO Evaluation • • • • 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 Should shortcomings shortcomings • Questions/descriptions of alleged crime ...
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