JUSTIFICATIONS AND EXCUSES TO CRIMINAL RESPONSIBILITY
INCOMPETENCY TO STAND TRIALINCOMPETENCY TO BE EXECUTEDDEFINING INSANITYM'NAGHTEN RULEIRRESISTIBLE IMPULSE RULEDURHAM RULEA.L.I. MODEL PENAL CODE RULEFEDERAL RULETEXAS RULEDUELING EXPERTS (BATTLE OF EXPERTS) IN INSANITY CASESBEST CHANCE FOR AN INSANITY DEFENSE TO PREVAILTHE EXPERT'S EFFORTANALYTIC STEPS TO A DIAGNOSISCOMPARATIVE INFORMATION REGARDING DURESSACTING UNDER SUPERIOR ORDERSCOMMON LAW SELF-DEFENSETHE ORIGINAL AGRESSOR BECOMING THE DEFENDERRE BATTERED SPOUSES AND CHILDRENMPC USE OF FORCE IN SELF-PROTECTIONTEXAS SELF-DEFENSERETREAT BEFORE RESORTING TO FORCE IN SELF-PROTECTIONRISK TO INNOCENT BYSTANDERS OF FORCE IN SELF-DEFENSE
Silver
Bullets II
JUSTIFICATIONS & EXCUSES
Copyright © Ray Moses 2002
All rights reserved.
For those who have plenty of time for collateral reading, you will find a good law review article on the subject of defenses at Criminal Law Defenses:A Systematic Analysis, 82 Columbia Law Review 199-291 (1982). Be sure to take a look at the list of recent law review articles. Some of them deal directly with various defenses to criminal responsibility. You can also find some information about defenses to crime on the Internet, e.g., (1), (2).
MENTAL ILLNESS:
- Four out of five voices in my head say, "Go for it!"
- Anyone who is crazy enough to go to a psychiatrist ought to have his head examined.
Mental illness of a person accused of crime becomes relevant with regard to five different stages of the the criminal justice process.: (1) the accused's present incompetency to stand trial for the alleged offense, See Bushrod 1, Asst. Nine ; (2) the accused's insanity at the time of the offense, See Bushrod 1, Asst. Nine; (3) the accused's diminished capacity because mental illness negated the mental element or mens rea of the offense, See Bushrod 1, Asst. Ten; (4) the blameworthiness of the accused at the sentencing phase because of mental illness, See Bushrod 1, Asst. Three ; and (5) the accused's present competence to be executed, See Bushrod 1, Asst. Four. Here are some good links to articles that distinguish between the defenses of insanity and diminished capacity.
INCOMPETENCY AS A BAR TO PROCEEDING
Incompetency to Stand Trial: Incompetency to stand trial focuses on the presently existing mental state of the accused. (1 - competence of juvenile to stand trial as an adult) The prosecution is barred from trying an accused person while that person is incompetent. Typically, the person who is incompetent to stand trial will be sent to a mental hospital where an effort will be made to restore his competency. One of the issues that surrounds the restoration process is whether the accused can be forced to take medications that will make him competent to be tried. See Riggins.v. Nevada, 504 U.S. 127 (1992). If there is no reasonable likelihood that competency can be restored, the individual is involuntarily committed civilly to a mental hospital. Incompetency to stand trial is a bar to trial until competency is restored. Look here for general information on mental health.
Texas - Art. 46B TCCP contains a fairly elaborate procedural process for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. In brief, there are three stages in the pretrial competency determination procedure: Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; Stage Three - the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future; based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings. Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored.
Incompetency to stand trial is not a defense to criminal responsibility. The definition of incompetency to stand trial is found in Art. 46B TCCP. Notice that a defendant can be classified as incompetent based on either of two conditions, i.e., (1) the person does not have sufficient ability to consult with the person's lawyer with a reasonable degree of rational understanding or (2) the person does not have a rational as well as factual understanding of the proceedings against the person. Hypo:What would happen with the accused who suffers from total amnesia concerning the crime? Is she competent?
For an insight into the practical aspects of incompetency, consult the history of the unsuccessful efforts of the Houston lawyers in the Yates case to have the accused declared presently incompetent to stand trial. The Unabomber Case of Ted Kaczynski also involved defense issues of competency. Cognitive Disabilities are discussed in this 49-page article.
Incompetency to Be Executed: Every state bars execution of the incompetent. There is no choice on the matter since the USSC decision in Ford v. Wainright, 477 U.S. 399 (1986). We know that the condemned prisoner has the right to present evidence and argue his incompetency to be executed before an impartial authority, independent of the executive branch of government.
Texas - Art. 46.05 TCCP provides that a person who is incompetent to be executed may not be executed. This statute is the Texas response (11 years later) to Ford v. Wainright. The statute provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court shall deny it. Art. 46.05 defines incompetency to be executed in (h) as being unable to understand: (1) that he or she is to be executed and that the execution is imminent and (2) the reason he or she is being executed. (This is similar to the definition that Justice Powell's concurring opinion suggested in Ford.) Notice in (k) that the condemned has the burden of proving incompetence to be executed by a preponderance of the evidence. This means the condemned must prove both (1) and (2) because the definition of incompetence to be executed is composed of two parts joined by the conjunctive "and." Also, the trial court .i.e., court of conviction, is the adjudicating body; the statute in (b) gives the trial court continuing jurisdiction over the defendant for matters raised under Art. 46.05. (Note how this responds to the problems in Ford, where the executive branch was given the power over the competency to be executed decision.) If the trial court determines that the condemned has made a substantial showing of incompetency to be executed, the court must order at least two mental health experts to examine the condemned to determine if s/he is incompetent. These experts conduct an examination of the condemned and report back to the court, the prosecution and the defense attorney. If the trial court makes a finding that the condemned is incompetent to be executed, it sends the appropriate documents to the court of criminal appeals for that court's decision as to whether a stay of execution should be issued. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed. [Note: Some states use a jury to determine incompetency to be executed
Interesting Questions Re Executing the Incompetent -
- What about execution of the mentally retarded person? (1) The USSC decision in Penry v. Lynbaugh, 492 U.S. 302 (1989) indicated that it would be permissible under the Eighth Amendment to execute a mentally retarded person; Penry was described as having a mental age of seven; he brutally raped and stabbed to death the beauty-queen sister of NFL football player Mark Mosely near Livingston, Texas. In 2001, the USSC once again dealt with Penry; in a decision reversing Penry's latest conviction, Justice O'Connor said that Texas failed to give the jury a sufficient vehicle for mitigating Penry's death sentence with evidence of childhood abuse and mental retardation. See Penry v. Johnson, 532 U.S. 782 (2001). By 2001, a number of states had voluntarily chosen by state law to bar execution of the mentally retarded. Texas was not among them. Then in 2002 the landmarks changed when the United States Supreme Court in the landmark case of Atkins v. Virginia, 536 U.S. 304 (2002) held that execution of the mentally retarded violated the cruel and unusual punishment provision of the Eighth Amendment of the U.S. Constitution.
- One interesting and unanswered question at the USSC level is whether an incompetent person may be forced to take medication that will make him competent to be executed. One can see why the prisoner might not want to take his pills. See Washington v. Harper, 494 U.S. 210 (1990).
- I think the mistake a lot of us make is believing that the state-appointed psychiatrist is our friend.
- We must believe in free will. We have no choice.
- 37%: Percentage of felony defendants the public thinks use the insanity defense in their trials.
0.9%: Percentage of defendants who do use the insanity defense at trial (Source: Arizona Law Review)
- "I wasn't right in the head. So they put me in the nervous hospital." (Statement of middle-aged Karl Childers, a slow-witted Arkansan who, at age 12, took a saw blade to his
promiscuous mother and her lover in the world-class movie Sling Blade)
Defining Insanity (1) See Bushrod1, Asst. 9. Here are definitions of some tests of insanity that have been utilized over the years:
- M'Naghten Rule (Right Wrong Test 1843): The rule is "It must be proven that at the time of committing 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 he was doing what was wrong." When we say that the accused did not know the nature and quality of his or her act, we mean, for example that she did not comprehend that she was, for example, choking her child to death, but rather thought that she was kneading dough. Such instances of lack of knowledge are rare. Accordingly, most insanity cases focus on the second prong of the test, i.e., whether disease of the mind rendered the accused unable to know that her conduct was wrong. [Historical Note: M'Naghten assassinated Drummond, the private secretary to Prime Minister Robert Peel, in the year 143. M'Naghten mistook Drummond for Sir Robert Peel. M'Naghten suffered from an in insane delusion that Peel was intent on killing him. The rather fascinating history of this rule is recounted in United States v. Freeman, 357 F.2d 606 (2nd Cir. 1966). With the hot breath of Queen Victoria upon them after the verdict acquitting M'Naghten, the judges were called upon to clarify the English rule of insanity. The rule pronounced by the fifteen judges of the common law courts to the House of Lords in a speech by Chief Justice Tindal was a reaffirmation of the old restricted right-wrong test. This rule became the standard approach to insanity in English and most U.S. courts.]
- Irresistible Impulse Test (1844): Under the irresistible impulse test, the inquiry is whether the accused can establish that a mental defect or disease kept him from controlling his conduct (volitional), even though he knew what he was doing and knew what it was wrong. This test augments or supplements the M'Naghten Rule. In such a jurisdiction, one need only satisfy one of the rules.
- Durham Rule (1954): Under Durham v. United States, 214 F2d 862 (D.C. Cir 1954) an accused is not criminally responsible if the "unlawful act was the product of mental disease or defect." "Product" is defined as " if the accused would not have committed the act but for the disease or defect." Mental disease or defect" was defined as " any abnormal condition of the mind which substantially affects mental or emotional processes and impairs behavior controls." See McDonald v. United States, 312 F.2d 847 (D.C. Cir. 1962). This radical test leaves a lot of room, many would say too much, for psychiatric influence on the insanity determination because it asks a causative question based on psychiatric of the link between the criminal act and existent mental disease or defect. Durham was replaced in D.C. first by the ALI-MPC Rule in United States v. Brawner , 471 F.2d 969 (D.C. Cir. 1972) and later, in 1984, by the Federal Rule of insanity.
- A.L.I. Model Penal Code Rule of Mental Responsibility (1963): Under the A.L.I. test of mental responsibility the accused is found not to be criminally responsible if, as a result of mental disease or defect, he lacks substantial capacity either: (a) to appreciate the wrongfulness of his conduct (cognitive portion); or (b) to conform his conduct to the requirements of law (volitional portion). While "mental disease or defect" is not defined Section 4.01 of the Model Penal Code states that it does not include an abnormality "manifested only by repeated criminal or otherwise anti-social conduct"; this has the effect of excluding sociopaths and psychopaths, i.e., the Antisocial Personality Disorder that applies to 75% of prison inmates and is characterized by a pattern of irresponsibility, rule breaking, and exploitation for sex, money and other primitive needs. In adolescence, this may manifest itself in Conduct Disorder characterized by truancy, fighting, destruction of property, firesetting, and cruelty to animals. Under the A.L.I. test, one sees what could be described as a refined combination of the M'Naghten and irresistible impulse rules.
- Federal Insanity Rule: The federal insanity defense enacted by Congress in 1984 is allowed only when the defendant, as a result of severe mental disease or defect was unable to appreciate the nature and quality of he wrongfulness of his acts. This new statutory federal rule replaced the ALI-MPC rule that had been judicially approved by every circuit. This new rule was generated by the assassination attempt on President Ronald Reagan in 1981 by John Hinckley, Jr., who successfully claimed under the ALI- MPC rule, existing in most federal circuits at that time, that he tried to kill Reagan because of an insane delusion that actress Jodie Foster would fall in love with him if he did so. After the acquittal, a federal judge found Hinckley to be a continuing danger to himself and others. He is still (2007) confined in St. Elizabeth's Hospital in Washington, D.C., though he was recently allowed home visits.
- Texas Insanity Rule (1983): Section 8.01, Texas Penal Code, defines insanity to mean that, at the time of the conduct charged, "the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." This is an affirmative defense. The defense has the burden of producing evidence that raises the issue of insanity and must also shoulder the burden of proving the defense by a preponderance of the evidence. Prior to the current rule, Texas had a version of the ALI-MPC rule. Reacting to the Reagan shooting, the lawmakers enacted the present definition of insanity which is essentially a restricted right-wrong test, more narrow than the original M'Naghten rule. In 2006 the USSC upheld a scaled down version of the M'Naghten Rule, as in Texas, that drops the "unable to understand the nature and quality of his acts" prong. See Clark v. Arizona, __ U.S. __, 126 S. Ct. 2709 (2006) which approved a defense persuasion burden of preponderance of evidence and indicated which state currently had which rule of insanity.
Consult those sources if you want to integrate a list of those definitions of insanity into your outline. Here's the original Daniel M'Naghten's 1843 case. See also these articles on the insanity defense (1 - listed above also), (2). How we define insanity is of pivotal interest to the study of criminal law. How the insanity claim is presented and the procedural framework for its presentation is more a matter of criminal procedure. We know that the law (including common law, MPC, and Texas) starts with the presumption that all people are sane. We also know that the insanity defense focuses on the time of the crime. It excuses the accused who is insane at the time of the offense from any criminal responsibility. Among the reasons that most jurisdictions recognize the insanity defense is that the person who is insane has lost the capacity of human choice (free will) to engage in crime as a result of mental disease or defect. Such a person is viewed as mentally ill (sick) and deserving of treatment, often in a locked-down mental hospital, rather than punishment.
Texas - How does insanity work : The definition of insanity as an affirmative (Burden of production and persuasion on defendant by a preponderance of evidence) defense to criminal responsibility is found in Section 8.01 TPC. Note that affirmative defenses are different from defenses in Texas, insofar as the burden of proof. Affirmative defenses require the defense to bear not only the burden of production, but also the burden of persuasion by a preponderance of the evidence. See Section 2.04 TPC describing "affirmative defenses" vis a vis Section 2.03 TPC which defines "defenses." In one instance the prosecution has the burden of disproving insanity beyond a reasonable doubt; that occurs when there is a prior undissolved judgment of insanity or lunacy existing against the defendant at the time of the offense. See Riley v. State, 830 S.W.2d 584 (Tex.Crim. App. 1992). [Note: This would be one hurdle Texas prosecutors would have to jump should they ever consider prosecuting Andrea Yates for the drowning deaths of the two of her five children who were not the subject of the previous prosecution where she was acquitted by reason of insanity.]
Insanity is a legal term, not a medical term. Medical personnel speak of "mental illness" and "mental disease or defect." Insanity is a legal term that is used as a label to describe a status that excuses a person from criminal responsibility. Insanity focuses on the time of the alleged criminal offense, unlike competency that focuses on the time of trial or the time of execution. As you examine Section 8.01 TPC, notice that it requires a causal connection between the severe mental disease or defect and the conduct charged. The law also requires that the defendant's mental condition must cause the defendant to be unable to know that his conduct was wrong. We know that the concept of "wrong" in Texas does not mean wrong according to the defendant's own subjective moral view. It is a bit unclear as to whether "wrong" means wrong according to the moral standards of society as a whole or simply illegal, i.e., against the law. See Bigby v. State, 892 S.W.2d 864 (Tex. Crim . App. 1994) for an example of a poorly written opinion which is vague on this point, but seems to intimate that wrong may simply mean "illegal." (This ties in with the issue in the Serravo case in Johnson casebook in which it was recognized that a psychotic person may know conduct is illegal but because of the mental illness not know that it is wrong according to society's moral standards.) In most cases, it may not make much practical difference, since most defendants who know their conduct is illegal will also know it violates the moral standards of society. [Note: Related to this issue is the question of the so-called "Deific Decree," where the accused thinks that God is ordering him to commit the offense in question and that God's orders overrule the written law and the morals of society as a whole. Some jurisdictions recognize this Deific Decree hallucination as an exception to the general rule that "wrong" is not to be judged from the defendant's perspective. Thus, in these jurisdictions, if one can connect the conduct to the metal disease or defect from which the Deific Decree emanated, the actor will be considered as not knowing that his conduct was wrong, and thus will still qualify to claim the insanity defense. I am not aware of a Texas decision on the issue of the "Deific Decree." Would it have made the case easier for the defense in Yates if Ms. Andrea Yates (Note: Her conviction for drowning her children was reversed on January 7, 2005, by the First Court of Appeals in Houston, Texas due to the use of false testimony by a prosecution expert. Yates was later acquitted by reason of insanity on retrial.) had maintained from the get-go that God ordered her to sacrifice her children? She did apparently say that her homicidal actions were to keep her children from the devil.]
Mental illness that does not prevent the defendant from knowing that his conduct is wrong does not raise the issue of insanity. Low intelligence, mental retardation, goofy personality, drug addiction, alcoholism, etc. are not equivalent to insanity, though they might be relevant evidence to such a claim. Remember that in Texas the mental disease or defect must qualify as severe. One would think that mental illness characterized by severe delusional behavior, such as paranoid schizophrenia, would qualify. Perhaps, postpartum psychosis would also qualify in Texas. Mental illnesses such as multiple personality disorders, obsessive-compulsive disorders, post-traumatic stress disorder, etc. are sometimes relied upon in various states. Personality disorders, including sociopathic (psychopathic) persons whose disorders are characterized by anti-social conduct usually don't qualify as a mental disease or defect, even under the ALI-MPC rule, See Section 4.01 MPC.
Texas law sets out an elaborate procedure surrounding the claim of insanity the effect of a finding that the accused was not guilty by reason of insanity. See Art. 46C TCCP. For example, Art. 46B provides for the court appointment of disinterested experts to examine the defendant who will claim insanity. Written reports of the examinations are filed with the court with copies to the defense and prosecution. There is also a procedure in Art. 46B (4) for the involuntary commitment to a mental institution of those found NGBRI. (My 1L criminal law students are not responsible for knowing this procedure.) The verdict of NGBRI is actually equivalent to a finding of guilty by insane. Why? Because, to find the defendant insane the jury must first have found beyond a reasonable doubt that s/he committed the offense. Insanity is one of those "confession and avoidance" defenses, where the accused says, "Yes I did it but..." Insanity doesn't mean that the accused didn't do the crime. Indeed, insanity is only available as an excuse when the accused did do the crime.
Notice, also, that insanity is the only defense in Texas that has to be pled, in the sense that the defense is required to provide written pretrial notice to the court and the prosecution of its intent to rely on the insanity defense. See Art. 46B, Section 2 TCCP. In the absence of a timely notice, the trial court is empowered to prevent evidence raising the insanity defense, unless the defense shows good cause for failing to provide the required notice. Obviously, insanity pleas typically involve the use of expert testimony and often center around a "battle of experts." See Below. When the accused is indigent, the law entitles the defendant to have taxpayer funds provided for the employment of an expert, e.g., psychologists or psychiatrists. See DeFreece v. State, 848 S.W.2d 150 (Tex.Crim. App. 1993). See also Art. 26.05(d)& (h) TCCP. In the last analysis, the jury decides whether the accused was insane under the prevailing definition of insanity. In most cases, the insanity defense is unsuccessful. (Yates was an exception.) For some interesting easy reading re insanity in general click here.
Dueling Experts in Insanity Cases: [Before you read about experts, take a look at the human brain. Some folks say that the most uncharted and unexplored expanse in the universe is between our ears.] Every insanity defense (Note: There are precious few claims of insanity as a defense, typically in bizarre murder cases, and most often those are unsuccessful.) will involve expert testimony from forensic psychologists and/or forensic psychiatrists or other behavioral scientists about the nature of the accused's mental illness, if any, and the applicability of the illness (disease or detect) to the prevailing legal definition of insanity in the jurisdiction. The prosecution is allowed to have its expert conduct a compulsory mental status examination of the accused in cases involving issues of incompetency and/or claims of insanity. See. Estelle v. Smith, 451 U.S. 454 (1981) rejecting a Fifth Amendment self-incrimination privilege claim. Each side will have its "hired guns," and at trial these experts will come to diametrically opposed conclusions as to whether the accused was insane at the time of the offense - thus, the battle of the experts. The psychiatrists ("shrinks" or "headshrinkers") (1 - negative view of psychiatry), (2 - Szasz on abolishing the insanity defense) (3 - forensic psychiatry resources) will rely on the Diagnostic and Statistical Manual of the the American Psychiatric Association, now in its 4th edition with text being currently revised (the "DSMTR4"), for their definitions of mental diseases and defects. Using this text that describes mental disorders by symptoms, the experts will indicate which of the forms of psychopathology qualify as a "mental disease or defect" under the insanity definition, be it M'Naughten, ALI-MPC, or some variation.
Best Chance for an Insanity Defense to Prevail: The defense's best chance for an insanity defense comes when the crime is in direct response to psychotic symptoms (1), (2), (3), (4), (5), (6 - great for definitions), (7). For example, most experts will agree that psychosis (with symptoms such as delusions, hallucinations and thought disorders), mental retardation, and other serious brain dysfunctions will qualify as a "mental disease or defect" for purposes of insanity. A number of specific psychotic illnesses seem to qualify with most experts, e.g., schizophrenia (the most severe form of mental illness, characterized by delusions, hallucinations and thought disorders), schizophreniform disorder (like schizophrenia but of shorter duration), schizoaffective disorder (involving depression or mania or when both occur, the so-called "bipolar disorder"), brief psychotic disorder (This one might be thought of as "temporary insanity" in the sense that it is of relatively short duration, e.g., weeks, but involves the symptoms of schizophrenia.), delusional disorders (These folks may appear normal until the delusion appears; one example is erotomania where the afflicted person has a delusion without hallucinations, e.g., the "celebrity stalker" who believes the targeted celebrity is in love with them; another example is the paranoid delusion), etc. The experts tell us that psychotic depression can express itself when where life becomes so highly debilitating that the sufferer quits eating and bathing and stays in bed and ,perhaps, hears voices reminding him of his unworthiness as a human being. They tell us that those in the grip of mania may become grandiose and extreme risk-takers because they feel bullet-proof. Brief periods of psychosis may occur when a chronic alcoholic is in the grips of delirium tremens. Of course, the prosecution experts may be quick to remind jurors that some people with psychoses have periods of remission where their symptoms don't manifest themselves.
There is also the dementia and misperception of reality that arises from mental retardation and diseases or defects such as Alzheimer's, AIDS dementia, toxic substances, or from mini-strokes. With brain defects there may be demonstrable organic brain damage that will show up on an MRI Scan. This can be as a result of infectious disease, e.g. AIDS, syphilis,etc., or cerebral vascular accident ("stroke" to us) or degenerative dementia, e.g., Alzheimer's disease, or brain damage from a toxic substance, e.g., alcohol is the most corrosive, or head injury or neurodevelopmental disorders.
If the accused does suffer from a psychosis,mental retardation, or serious brain dysfunction, we next have to figure out whether s/he was in the grip of the illness when the crime was committed. Even then, we still have to decide if there is a causal relationship between the mental disease or defect and the otherwise criminal act. The legal issue is not whether the subject was mentally ill when s/he committed the otherwise criminal act, but rather whether as a result of the mental disease or defect, s/he met the legal test of insanity, e.g., did not know right from wrong. A person can have one of these severe mental disorders and still not qualify for the insanity defense because there is insufficient evidence of a causal connection between the illness and the crime. In such cases, the crime and the mental disease or defect are viewed by the expert as merely coincidental to one another.
The experts will tell us that certain mental illness doesn't qualify for the insanity defense. It depends on the definition of insanity in the jurisdiction, but personality disorders, e.g., the psychopathic personality, the asocial personality, the dependant personality, don't usually qualify. Neither does paraphilia (sexual perversion, e.g., sex with children, sex with corpses, etc. ).or substance related disorders flowing from the use of drugs such as cocaine or amphetamines (Note: Psychotic behavior flowing from the use of crystal methamphetamine is one of the big issues that will be confronting the trial courts in years to come when dealing with the insanity defense; apparently, some people who take crystal meth stay psychotic for a long period, months maybe years, after ingestion.).Anxiety disorders, e.g. post-traumatic-stress disorder (PTSD) and obsessive-compulsive disorder ( "I did it to gratify a compulsive desire.") normally don't qualify for an insanity claim, although the battered-spouse and battered-child defense usually involve a defendant who suffers from PTSD. Impulse control disorders ( "I couldn't help myself.") normally don't qualify, but might work into a claim or insanity based upon irresistible impulse, if it is part of the jurisdiction's insanity definition. Neither do so-called factitious disorders, e.g., Munchausen's Syndrome By Proxy (1- Florida case). Claims of insanity based on cultural environment, bad parents, dysfunctional family life, trivial head injuries ("Earl fell out of tree when he was six and was never the same."), and alcoholic blackout ("I drank a bottle of Jack Daniels and blacked out." - This one might,however, work into a defense of "unconsciousness.") don't get very far. They are typically considered as fabricated mental disease.
The Expert's Effort: How do the experts go about making their psychiatric or psychological assessment of the accused's mental state at the time of the offense? The expert reviews the extant records of the case, e.g., the discovery, the crime scene reports, the offense reports, etc. Why? Because the presence or absence of mental illness and its relationship to the accused knowledge of the wrongness of the crime can be revealed by behavior of the accused before, during, and after the offense. The expert visits the crime scene. The expert interviews the complainant and witnesses. The expert inspects the physical evidence. The expert conducts an examination of the accused, typically about two days for a total of 6-10 hours face-to-face. The expert may conduct or order neuropsychological tests and/or biomedical tests. Psychological tests may be given. The most widely used is probably the Minnesota Multi-Phasic Personality Inventory (MMPI) with 567 True/False questions, some of which are designed to catch malingerers (those trying to fake mental illness). The MMPI is also designed to catch people who are pretending to be better off mentally than they really are. [Note: Some police departments give this to people applying to be cops.] Some defense experts may not give the MMPI because the results may be indisputable, e.g., the defendant is a real mean person but not crazy!. Lawyers who try to obtain copies of the psychological tests used on their clients by the opposition's experts may run into trade secrets barriers. [Personal Note: Many years ago I wrote a book for Foundation Press called Scientific Evidence in Criminal Cases; when I wrote that book there were two tests, i.e., the Rorschach Ink Blot Test involving ten cards, some colored, that was supposed to be revealing of personality and intelligence when shown to a subject and explained by him, and the Thematic Apperception Test based on the subject telling the interviewer stories.. Both tests were touted by psychiatrists and psychologists in the '60's, and consequently by me in the book., as useful diagnostic tools. Today's experts eschew both of these tests as scientifically bankrupt. There is probably enough literature discounting these tests to keep them out of evidence under Daubert. If not, the treatises could be used to impeach the validity of the tests in cross-examination. Just shows to go you!] There are ways of looking into the accused's brain without cracking it open. CAT (Computerized Axial Tomography) Scans or MRI (Nuclear Magnetic Resonance Imaging) Scans may be conducted and the results examined for the presence or absence of structural defects in the brain. MRI's are generally recognized as providing a far better basis for diagnoses, but CAT Scans are cheaper and easier to administer.
The expert's face-to-face mental status examination (MSE) of the accused should be comprehensive. This means that the expert should be thoroughly prepared, knowing as much about the case as possible before talking with the accused. The mental status exam should be videotaped from start to finish. The accused should be told why the exam is taking place, that the exam is not confidential, and that it is being videotaped. The expert should take a life history, e.g., a "getting to know all about you" set of questions that explore the accused's background, schooling , family, etc. An IQ test should be given. [ Note: IQ is reflected in numbers, i.e. above 130: very superior; 120-129: superior; 110-119: high average; 90-109: average; 80-89: low average; 70-79: borderline; and 69 and below: mentally retarded.] The accused is then asked by the forensic examiner to give his account of the offense, e.g., "Take me through the whole story. Earl."; the expert does not interrupt with questions during the accused's narrative. After the accused has told his story, the expert will ask clarifying questions. Then the expert will confront the accused with inconsistencies in his story and note the reactions. Throughout the exam the expert is monitoring the accused's orientation, level of consciousness, emotion (mood and affect), suicidal-homicidal axis, insight, judgment, memory, and intellect. Memory can be tested by simple tests, e.g, the examiner asking the accused to remember three words and then coming back 20 minutes later and asking him to recall the three words. The accused's vocabulary will also aid the examiner in assessing his intellect. Experts generally agree that "reality testing" is the "meat and potatoes" of the mental status examination (MSE). Reality testing focuses on the content, form, and logic of the accused's thoughts, as well as his perceptual accuracy, e.g., the presence or absence of delusions and/or hallucinations.
Analytic Steps to a Diagnosis: How does the expert arrive at a conclusion regarding the insanity issue? The expert organizes the facts from the life history of the accused together with the detailed facts of the offense, including what the accused did before, during, and after the event. Then the expert compares the accused's statements with that of all the other witnesses and analyzes the results of all the tests that have been run on the accused. Then the expert reconstructs the accused's thoughts and feelings at the time of the offense and compares those feelings with the legal test of insanity. The expert then arrives at a conclusion (expert opinion) as to whether the accused was insane at the time of the offense. The expert's report is then written up and delivered to the attorney who employed the expert.
Defining Diminished Capacity (1) (2 - Good Bibliography) See Bushrod1, Asst. 10. Dressler devotes an entire chapter to the somewhat unclear issue of diminished capacity. He points out that there are two concepts - diminished capacity in the sense of allowing the accused to introduce evidence of mental condition to negate the existence of an element of the crime, e.g., usually the mens rea, and the concept of partial responsibility that allows the accused, typically in criminal homicide cases, to introduce evidence of mental handicap to lessen the level of the offense, e.g., from murder to voluntary manslaughter. Look at the ALI-MPC rule in Section 4.02 MPC for an example of the former type of diminished capacity in a very broadly defined rule. Dressler says that about 15 states adhere to the MPC rule approach to diminished capacity. Some states take a stricter approach and completely reject the concept of diminished capacity. Some other states, probably Texas, stake out a position between the MPC rule and total rejection; these states allow diminished capacity to negate specific intent of specific intent crimes.
Texas - Diminished Capacity: The general rule here in Texas is that evidence of mental illness or retardation that doesn't amount to insanity is inadmissible . The one exception that may exist is where a specific intent is required in the definition of the offense, as in the crimes that require proof of a "with intent to " element, burglary, theft, robbery, intent to kill murder, attempt. etc. In those specific intent crimes, evidence of mental deficiency falling short of insanity may apparently be introduced to rebut or negate the specific intent. See Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) (concurring opinion). Hypo: Suppose you have a Texas shoplifting case where the accused's specific intent to steal must be shown as an element of the crime. Could you introduce evidence that the defendant suffered from an obsessive-compulsive mental disorder (probably not a severe mental disease or defect that would prevent her wrong knowing it was "wrong") that made her powerless to resist the urge to shoplift. Would this be a case of diminished capacity? (Would it work for Wynona Ryder in California? Remember what the citizens of CA. did with regard to diminished capacity after Whetmore? Yes, they abolished it with Proposition 8.)
The defense of infancy is based on the actor's chronological age at the time of the criminal act. The child may commit an otherwise act with a culpable mental state, but because we do not regard him as responsible, his act, which might be a serious crime if committed by an adult, is non-criminal. Common law provides that the child under the age of seven (7) is conclusively presumed incapable of being responsible, i.e., a child under seven cannot be guilty of a crime. Children seven (7) through thirteen (13) are rebuttably presumed incapable of being criminally responsible, i.e., between the ages of seven and thirteen, a child is rebuttably presumed incapable of forming a culpable mental state. Persons fourteen (14) and over are treated as criminally responsible adults. The Model Penal Code, Section 4.10, provides the defense of immaturity. The basic rule is that one who was less than sixteen (16) at the time of the offense is not triable or convictable for the offense. Those who were sixteen or seventeen (less than eighteen) at the time of the offense are not triable or convictable in criminal court unless the juvenile court has waived jurisdiction over them or unless the juvenile court has no jurisdiction over them. The Texas law on infancy is much more complicated because it is associated with the juvenile law. The juvenile law, Title Three of the Family Code, was totally redrafted in 1995 and is not analyzed here. Section 8.07 TPC deals with "Age Affecting Criminal Responsibility."
DURESS (COERCION, COMPULSION) AS A DEFENSE
Duress, like insanity, is one of those confession and avoidance defenses. The law of duress recognizes that sometimes we may have to walk with the devil to get across the bridge. Duress doesn't negate an element of the crime, but rather involves an additional consideration, i.e., that the defendant was forced to commit the crime. This is the legal version of the younger child's proverbial excuse - "Mom, he made me do it." Obviously, in cases of duress, the defendant has an additional motive to commit the crime because of the threat or use of force against himself or another by a third party. In effect, the defendant says, "I was coerced into committing the crime because I did not want to be hurt or have another hurt if I didn't commit the crime." Indeed, the threat of harm to himself or another may be the underlying reason why the accused committed the offense. But motive, in the sense of a reason why, is typically not an element of an offense that the prosecution must prove. Duress is typically viewed as an excuse, rather than a justification for crime.
HYPO: Suppose a case where a witness commits perjury because of a threat of serious injury to him or his family in the future if he doesn't do so. How "imminent" is a threat to hurt a person in the future if the person doesn't commit perjury. This is a conditional threat of future injury. If we are going to require that the person threatened go to the authorities, do we need to evaluate the ability of the authorities to protect the witness from harm, i.e., to vouchsafe his safety? If the witness subjectively and in good faith believes he or his family will be seriously injured, does it matter whether that belief is an objectively reasonable belief? Think about the case of Ms. Carradine, the Chicago mother who was threatened with serious bodily harm by the street gang if she testified. Was it fair to hold her in jail for a lengthy period for contempt because, out of fear of harm to herself and her children, she wouldn't testify?
Comparative information re duress: The MPC (Section 2.09), TPC (Section 8.05 - affirmative - BOP on D by a POE - defense) and the c/l adhere to the requirement that the threat that constitutes duress be a threat of personal injury rather than a threat of property damage. Note that the MPC describes "a threat of unlawful force" which would apparently include minor physical damage. Notice that the TPC seems to scale down the threat that will qualify according to whether the person is be coerced to commit a felony (threat of "imminent" death or serious bodily injury to himself or another) or a misdemeanor (by force or threat of force). The MPC, like the TPC but unlike the c/l, appears to extend the defense of duress to encompass intentional or knowing homicides. Also, the MPC does not appear to limit the threat to "imminent" harm. Instead of the rigid requirement of "imminent" threat, the MPC takes the so-called modern approach and instead asks whether a person of reasonably firm resolve would be able to resist the threatened harm. The TPC requires that the threat be imminent when the crime committed is a felony, but apparently not when it is a misdemeanor. With regard to threats to harm third parties, the MPC and TPC do not require that the third person be a relative or acquaintance of the accused (defendant). Like the c/l, the MPC and the TPC don't allow the defendant (accused) to claim the defense if he (intentionally, knowingly, or recklessly - TPC only) recklessly put himself in the position where it was probable that he would be subjected to compulsion or coercion to commit the crime. (Under the MPC duress is also unavailable in a negligence crime when the defendant negligently places himself in such a position. In Texas and the c/l, it would seem that the defendant who negligently places himself in such a position would be able to claim the defense of duress.) Notice that the MPC, in Section 2.09 (4), makes it implicitly clear that the limitations on the duress defense do not apply to the necessity defense. For a recent case on burden of proof in federal cases involving duress, see Dixon v. United States, __ U.S. __, 126 S.Ct. 2437 (2006).
Duress differs from brainwashing, in the sense that the brainwashed person could operate apart from the brainwasher. The brainwashed person might be under the control of the brainwasher, but no imminent threat of force would have to be present. Here's an easy-to-read explanation of the famous Patty Hearst case that implicated aspects duress and brainwashing. In more recent times, the D.C. sniper shooter, Boyd Lee Malvo, tried unsuccessfully to sell a brainwashing claim.
ACTING UNDER SUPERIOR ORDERS AS A DEFENSE
Voltaire said ,"It is forbidden to kill, therefore, all murderers are punished, unless they kill in large numbers and to the sound of trumpets." Killing the enemy in wartime is deemed justifiable homicide. See Section 9.21(c) TPC. Forces in wartime are structured so that soldiers (combatants) take orders from their superior officers. Yet, the international law of war seems to require that the subordinate refuse to obey a clearly "illegal" order, e.g., an order from his superior officer to shoot an innocent civilian, even if the refusal places the subordinate's own life, e.g., from actions of the superior officer, in jeopardy. This is a very dicey issue, particularly when the victors try the vanquished or a low-ranking military officer runs the risk of being used as a scapegoat for a substantial number of atrocities in an unpopular war. For a fascinating case of a 24 year old lieutenant (William "Rusty" Calley) who was tried for overseeing and participating in the massacre of the non-combatant men, women, and children inhabiting a village, My Lai, during the Vietnam War PRESS HERE. It has been said : "When a man has done something he is ashamed of, he usually says that it was his duty." Would you agree that "during war, laws are silent"? Is war a bit like the proverbial "open boat"? For those with a bent toward the military, here's a useful site - Court of Appeals for Armed Forces. The Uniform Code of Military Justice is at 10 U.S.C. 801 et seq. In 2004, some court martials flowed out of the treatment by American "coalition" forces of Iraqi prisoners during their incarceration during operation "Enduring Freedom." One might wonder how far up the chain of command approval of psychological and physical torture might have gone.
NECESSITY (AKA" CHOICE OF EVILS," JUSTIFICATION) AS A DEFENSE