Insanity, MSO, and Insanity, MSO, and Related IssuesRelated Issues

Russell M. Bauer, Ph.D.Russell M. Bauer, Ph.D.

July 21, 2014July 21, 2014

Mental State at OffenseMental State at Offense

• One of the most One of the most difficult and bloodcurdlingdifficult and bloodcurdling tasks of a forensic psychologisttasks of a forensic psychologist– it isit is RETROSPECTIVE RETROSPECTIVE– MOTIVATIONAL factors affect current MOTIVATIONAL factors affect current

presentationpresentation– It requires “POINT IN TIME” determinationIt requires “POINT IN TIME” determination

• RequiresRequires “investigative reconstruction” “investigative reconstruction” of of crime events, often involving information crime events, often involving information psychologists are not used to reviewingpsychologists are not used to reviewing– Crime scene information – behavioral/motivational Crime scene information – behavioral/motivational

reconstructionreconstruction

History of Insanity DefenseHistory of Insanity Defense

• Basic Concept: free willBasic Concept: free will• Has existed or many centuriesHas existed or many centuries• Mc’Naghten Case (1840’s) – emphasizes cognitive Mc’Naghten Case (1840’s) – emphasizes cognitive

understandingunderstanding• ““Irresistable Impulse” rule – volitional control standardIrresistable Impulse” rule – volitional control standard• Durham vs. United States: “product” of mental disease Durham vs. United States: “product” of mental disease

or defect (1954); also known as the “but for” testor defect (1954); also known as the “but for” test• American Law Institute Model Penal Code: cognition American Law Institute Model Penal Code: cognition

(appreciation) vs. volition (control)(appreciation) vs. volition (control)• 1984 Congress: wrongfulness appreciation1984 Congress: wrongfulness appreciation• VERY rare defense (<<l%, and of that, rarely VERY rare defense (<<l%, and of that, rarely

successful)successful)

Pre-M’NaghtenPre-M’Naghten

• 1313thth century: 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)M’Naghten (narrow)• 1843: murder of Prime Minister’s assistant1843: murder of Prime Minister’s assistant• M’Naghten acquitted based on mental disorderM’Naghten acquitted based on mental disorder• House of Lords later ruled:House of Lords later ruled: “To establish a defense “To establish a defense

on the ground of insanity, it must be clearly proved on the ground of insanity, it must be clearly proved that, at the time of committing of the act, the party that, at the time of committing of the act, the party accused was laboring under such a defect of reason, accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature from disease of the mind, as not to know the nature and quality of the act that he was doing (PRONG 1), or, 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 if he did know it, that he did not know what he was doing was wrong (PRONG 2)”doing was wrong (PRONG 2)”

• M’Naghten committed to BedlamM’Naghten committed to Bedlam, eventually died , eventually died in another hospital after decades of “treatment”in another hospital after decades of “treatment”

ExampleExample

• Defendant bites another person Defendant bites another person because he believes him to be a because he believes him to be a piece of chicken (crime: battery)piece of chicken (crime: battery)– Could prove insanity under Prong 1Could prove insanity under Prong 1

• Defendant bites another person, Defendant bites another person, knowing him to be a person, but knowing him to be a person, but not knowing that biting is painful not knowing that biting is painful and can injure the other personand can injure the other person– Could prove insanity under Prong 2Could prove insanity under Prong 2

Durham v. United StatesDurham v. United States• This ruling is the source of the “product test” This ruling is the source of the “product test”

Durham v. U.S.Durham v. U.S. (214 F.2d 862) (214 F.2d 862)– ““an accused is not criminally responsible if his unlawful an accused is not criminally responsible if his unlawful

act was the act was the productproduct of a mental disease or defect” of a mental disease or defect”– Way more “generous” than McNaghtenWay more “generous” than McNaghten

• Problems:Problems:– what is a “product”? (i.e., what is the causative chain?)what is a “product”? (i.e., what is the causative chain?)– Which mental diseases qualify?Which mental diseases qualify?

• Case eventually overturned (US v. Brawner, Case eventually overturned (US v. Brawner, 471F .2d 969 (1972). Places too much emphasis on 471F .2d 969 (1972). Places too much emphasis on expertsexperts

• Now of mainly historical significanceNow of mainly historical significance

American Law Institute (ALI, American Law Institute (ALI, 1955)1955)

• Compromise between McNaghten and DurhamCompromise between McNaghten and Durham• A person is not responsible for criminal conduct if at the time A person is not responsible for criminal conduct if at the time

of such conduct as a result of mental disease or defect he of such conduct as a result of mental disease or defect he lacks lacks substantialsubstantial capacity capacity eithereither to to appreciateappreciate the the wrongfulness of his conduct wrongfulness of his conduct oror to conform his conduct to the to conform his conduct to the requirements of the lawrequirements of the law

• Some ‘mental disorders’ excluded (e.g., antisocial PD)Some ‘mental disorders’ excluded (e.g., antisocial PD)• Changes from beforeChanges from before

– Change implication of “full” (did not know) to “substantial” (appreciate)Change implication of “full” (did not know) to “substantial” (appreciate)– Change “know” to “appreciate”Change “know” to “appreciate”– Change “criminality” to “wrongfulness”Change “criminality” to “wrongfulness”– Essentially eliminated repeated acts in and of themselves (e.g., APD)Essentially eliminated repeated acts in and of themselves (e.g., APD)

• Was widely popular for a time; now no longer used federally, Was widely popular for a time; now no longer used federally, and only 18 states use the ALI testand only 18 states use the ALI test

““Irresistable Impulse” (ca Irresistable Impulse” (ca 1960)1960)

• ““Volitional” vs. “cognitive” insanityVolitional” vs. “cognitive” insanity• Technically, this is “diminished capacity” Technically, this is “diminished capacity”

defense, not insanity; used to mitigatedefense, not insanity; used to mitigate• The defendant is not legally responsible:The defendant is not legally responsible:

– ““if by reason of the duress of mental disease he had if by reason of the duress of mental disease he had so far lost the power to choose between right and so far lost the power to choose between right and wrong, and to avoid doing the act in question that his wrong, and to avoid doing the act in question that his free agency was destroyed” free agency was destroyed” (a tough test, see below)(a tough test, see below)

– act the product of mental disease solelyact the product of mental disease solely– Most relevant to impulse control disordersMost relevant to impulse control disorders

• Problem: how do you distinguish an “irresistable Problem: how do you distinguish an “irresistable impulse” from an “impulse not resisted”?impulse” from an “impulse not resisted”?

Three Variations on Three Variations on Irresistable ImpulseIrresistable 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 InterpretationsState Interpretations (subject to change)(subject to change)

• One-half use M’Naghten One-half use M’Naghten • One-third of states use ALIOne-third of states use ALI• Three states have reference to Three states have reference to

“irresistable impulse”“irresistable impulse”• Four states have abolished insanity Four states have abolished insanity

defense altogether (Montana, Idaho, defense altogether (Montana, Idaho, Utah, Kansas)Utah, Kansas)

• NH: “product” of mental disease or NH: “product” of mental disease or defect”defect”

Generally Excluded Mental Generally Excluded Mental DisordersDisorders

• Antisocial personalityAntisocial personality• Adjustment disorderAdjustment disorder• ““Compulsive” disordersCompulsive” disorders• Seizure disorders allowable in some Seizure disorders allowable in some

jurisdictions, not in others – clinical jurisdictions, not in others – clinical considerations (i.e., is it possible to considerations (i.e., is it possible to execue an articulated plan while in execue an articulated plan while in seizure mode?) are importantseizure mode?) are important

1984 Congress (Insanity 1984 Congress (Insanity Defense Reform Act)Defense Reform Act)

• Reform in response to Hinckley verdict Reform in response to Hinckley verdict (aquitted on volitional prong of ALI)(aquitted on volitional prong of ALI)

• 1980’s ABA and APA standards: “A person is 1980’s ABA and APA standards: “A person is not responsible for criminal conduct if, at the not responsible for criminal conduct if, at the time of such conduct, and as a result of mental time of such conduct, and as a result of mental disease or defect, that person was unable to disease or defect, that person was unable to appreciate the wrongfulness of their conduct”appreciate the wrongfulness of their conduct”

• 1984 Congress adopts ABA standard (cognitive 1984 Congress adopts ABA standard (cognitive prong of ALI)prong of ALI)– Defense has burden (affirmative defense)Defense has burden (affirmative defense)– clear and convincing evidence neededclear and convincing evidence needed

Cases in which Cases in which MSO/Insanity Was MSO/Insanity Was

ConsideredConsidered• Kip KinkelKip Kinkel, l7, shot 29 people in an Oregon school rampage in 1998; heard “command” voices; abandoned insanity defense, got 25+ years

• David BerkowitzDavid Berkowitz, “Son of Sam” killings NYC, eventually recanted the “possessed dog” explanation and was sentenced to 365 years in jail

• Ted BundyTed Bundy; US serial killer l974-l978; responsible for an estimated 40 murders; executed 1989 in FL electric chair

• Sirhan SirhanSirhan Sirhan: murdered Robert Kennedy l968; convicted, sentenced to death; commuted to life in prison; unsuccessful irresistable impulse

• Henry Lee LucasHenry Lee Lucas; serial murderer in TX/FL l982; died in prison 2001• Charles MansonCharles Manson; cult leader; sentenced to death; CA suspends

death penalty later• John Wayne GacyJohn Wayne Gacy, used DID defense; convicted of 33 murders in

l980; executed l994• Ted KaczynskiTed Kaczynski, Unabomber, thought to be suffering from paranoid

schizophrenia; 4 consecutive life sentences• Jeffrey DahmerJeffrey Dahmer; necrophilia, cannibalism, l60-page rambling

confession; convicted l992, killed in prison l994

A notable exceptionA 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 DefenseIssues 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)What the Jury is Told (CA)• The defendant has been found guilty of the crime of _____. You must The defendant has been found guilty of the crime of _____. You must

now determine whether [he] [she] was legally sane or legally insane 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 at the time of the commission of the crime. This is the only issue for you to determine in this proceeding. you to determine in this proceeding.

• You may consider evidence of [his/her] mental condition before, You may consider evidence of [his/her] mental condition before, during and after the time of the commission of the crime, as tending 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 to show the defendant's mental condition at the time the crime was committed. committed.

• Mental illness and mental abnormality, in whatever form they may Mental illness and mental abnormality, in whatever form they may appear, are not necessarily the same as legal insanity. A person 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. 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 A person is legally insane when by reason of mental disease or defect [he/she] was incapable of knowing or understanding the nature and [he/she] was incapable of knowing or understanding the nature and quality of [his/her] act or incapable of distinguishing right from wrong quality of [his/her] act or incapable of distinguishing right from wrong at the time of the commission of the crime. at the time of the commission of the crime.

• The defendant has the burden of proving [his/her] legal insanity at 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 the time of the commission of the crime by a preponderance of the evidence.evidence.

Burden of ProofBurden of Proof

• One-third of states require One-third of states require prosecution to prove sanity “beyond prosecution to prove sanity “beyond reasonable doubt” (90-95%)reasonable doubt” (90-95%)

• Most remaining states require Most remaining states require defendant to prove insanity by defendant to prove insanity by “preponderance of evidence” (5l%)“preponderance of evidence” (5l%)

• AZ and federal courts: defendant AZ and federal courts: defendant must prove sanity by “clear and must prove sanity by “clear and convincing” evidence (75%)convincing” evidence (75%)

Basic Elements of Crime Basic Elements of Crime Behavior Relevant to Insanity Behavior Relevant to Insanity

DefenseDefense• physical conduct of crime (physical conduct of crime (“actus “actus

reus”reus”))• mental state (level of intent) mental state (level of intent)

associated with the crime (associated with the crime (“mens “mens rea”rea”))

• to convice to convice beyond reasonable doubtbeyond reasonable doubt, , state must prove that the defendant state must prove that the defendant committed the actus reus with the committed the actus reus with the requisite mens rea for that crimerequisite mens rea for that crime

Defenses Related to Defenses Related to SanitySanity

• Automatism DefenseAutomatism Defense– acts committed “involuntarily”acts committed “involuntarily”– this is different from sanitythis is different from sanity

• automatons are “unaware” (but will be automatons are “unaware” (but will be held responsible if ailment had previously held responsible if ailment had previously existed and steps were not taken to existed and steps were not taken to prevent or manage it)prevent or manage it)

• prosecution bears burden of negating prosecution bears burden of negating automatism beyond reasonable doubtautomatism beyond reasonable doubt

• no mental disease or defect requiredno mental disease or defect required

Defenses Related to Defenses Related to SanitySanity

• Diminished CapacityDiminished Capacity– mental state essentially defined culpability; mental state essentially defined culpability;

planning a crime involves more intent than planning a crime involves more intent than accidentally committing oneaccidentally committing one

– specific vs. general intentspecific vs. general intent– Mens ReaMens Rea components: components:

• Purpose:Purpose: conscious intent conscious intent• Knowledge:Knowledge: awareness, but not conscious intent awareness, but not conscious intent• Recklessness:Recklessness: disregarding a substantial and disregarding a substantial and

unjustifiable riskunjustifiable risk• Negligence:Negligence: not aware of a risk, but should have not aware of a risk, but should have

been awarebeen aware

Defenses Related to Defenses Related to SanitySanity

• IntoxicationIntoxication - generally viewed - generally viewed negatively by the courts unless negatively by the courts unless accidental (the act of intoxication is accidental (the act of intoxication is seen as volitional)seen as volitional)

• Guilty but Mentally IllGuilty but Mentally Ill - may be - may be sentenced to any term appropriate to sentenced to any term appropriate to the offense with the opportunity to the offense with the opportunity to receive treatment during the period receive treatment during the period of incarcerationof incarceration

MSO EvaluationMSO Evaluation

• Place emphasis on information related Place emphasis on information related to crime scenario (contains mens rea to crime scenario (contains mens rea information)information)

• Statements/confessions are important, Statements/confessions are important, but must be treated with cautionbut must be treated with caution

• Brief MSE (for diagnosis)Brief MSE (for diagnosis)• Discuss crime with defendantDiscuss crime with defendant• Prior records relevant to diagnosisPrior records relevant to diagnosis

Phases of MSO EvaluationPhases of MSO Evaluation

• Review of RecordsReview of Records• Intro, orientation, rapport building for evaluation Intro, orientation, rapport building for evaluation

– defendant must see this as different from – defendant must see this as different from interrogationinterrogation

• Developmental/Sociocultural historyDevelopmental/Sociocultural history• Assessment of current mental statusAssessment of current mental status

– May or may not require neuropsychological May or may not require neuropsychological assessmentassessment

– Should stage assessment relative to alleged Should stage assessment relative to alleged behavioral shortcomingsbehavioral shortcomings

• Questions/descriptions of alleged crimeQuestions/descriptions of alleged crime