Legal, Empirical
and Clinical Aspects of the Conceptualization and Assessment of Criminal
Responsibility and the Insanity Defense
Patricia A. Zapf, PhD
Department of Forensic
Psychology
The
Stephen L. Golding, PhD
Department of Psychology
Ronald Roesch, PhD
Department of Psychology
Cite as:Zapf, P.A., Golding,
S.L., Roesch, R. (2006). Legal, empirical and clinical aspects of the
conceptualization and
Legal, Empirical and Clinical
Aspects of the Conceptualization and Assessment of Criminal Responsibility and
the Insanity Defense
There has been much written about
criminal responsibility and issues of insanity or mental state at the time of
the offense. In this chapter, we have
chosen to focus on the following three major areas: (a) insanity standards and
the construal of criminal responsibility, including a brief review of the
historical and jurisprudential roots of culpable mens rea, an overview of the evolution of the legal standards for
the insanity defense, and an examination of the movement to reform the insanity
defense, particularly by adopting “guilty but mentally ill” verdict options; (b)
a review of issues related to the assessment of criminal responsibility,
including the structure of these evaluations, instruments developed to guide
these evaluations, the role of delusions in the evaluation of criminal
responsibility, and issues in the treatment and release of insanity acquittees;
and (c) an overview of the empirical developments regarding criminal
responsibility, including research on NGRI verdicts, judicial instruction, and
jury/juror decision-making. As it is
impossible to cover everything in one chapter, the interested reader is also
referred to additional resources for an in-depth understanding of this topic
area (see especially, Borum, 2003; Golding, 1992; Golding & Roesch, 1987;
Golding, Skeem, Roesch, & Zapf, 1999; Melton, Petrila, Poythress, &
Slobogin, 1997; Rogers & Shuman, 2000).
Insanity Standards and the Construal of
Criminal Responsibility
The complex of arguments, philosophical debate, opinion,
and data on the insanity defense (see Eigen, 1995; Gray, 1972; Hermann, 1983;
Pasewark, 1982; Platt & Diamond, 1965, 1966; R. Smith, 1981;
In
cognizing and regulating social interactions in terms of fundamental principles
of “fairness” and “justice,” we assume that all such social interactions,
including the societal judgment of criminal or civil responsibility for certain
classes of proscribed behavior, are based upon an ethical calculus that assigns
individual blame, culpability, liability, punishability, and moral and criminal
responsibility as a function of intentionality and mental capacity. The
classical formulation of this moral presupposition is the legal maxim, Actus non facit reum, nisi mens sit rea,
which translates freely into modern English as “An act is not legally
cognizable as evil, and hence criminally punishable, unless it is committed by
a person who has the capacity to cognize the act as evil and then freely
chooses to do it.”
This fundamental belief goes to the heart of the tension in
the public's mind, as well as in the criminal and civil law, between strict or
objective liability, on the one hand, and subjective liability, on the other.
An examination of the history of the criminal law in Western Judeo-Christian
cultures clearly demonstrates the nature of this tension (see especially
Crotty, 1924; Gray, 1972; LaFave & Scott, 1972; Platt & Diamond, 1965,
1966; Sayre, 1932). The dilemma is simply this: on the one hand it is clear
that when someone performs a heinous or reprehensible act, they are “guilty” in
the common sense meaning of that term (objective liability). On the other hand,
in order to have a theory of action and responsibility that embodies our
cultural sense of “fairness” and “justice,” and that reflects our increasing
knowledge of psychological processes, in general, and psychotic processes, in
particular, we have to consider the conjunction of the proscribed behavior (actus reus) and an appropriate degree
and type of intentionality and mental capacity (mens rea) in ascribing guilty or culpable ownership of an act
(subjective liability).
We will not attempt to address the
logically prior moral question about the insanity defense—whether or not it
should exist. Our belief, along with
most (but not all) scholars who have examined this issue is that its existence
is integral to the fabric of our social structure, which includes, but surely
is not limited to, the structure of our criminal law. Rather, we will attempt to outline issues
that are relevant to those mental health professionals who are called upon to
evaluate defendants and offer expert opinion on the issue of criminal
responsibility.
The Concept
of Mens Rea
It is well established within the historical and
jurisprudential literatures (Gray, 1972; Hermann, 1983; Platt & Diamond, 1966;
Pollack & Maitland, 1952; Sayre, 1932; Stroud, 1914) that the fundamental
concept of mens rea within
Judeo-Christian cultures has been in existence since the earliest recordings of
Hebrew law. Platt and Diamond, for example, quote the Babylonian Talmud as
observing, “A deaf-mute, an idiot and a minor are awkward to deal with, as he
who injures them is liable (to pay), whereas if they injure others they are
exempt” (1966, note 7, p. 1228). This concept may be traced, in a continuous
line of development, through Greek and Roman law where the concept of culpa (negligence) is distinguished from
dolus (intentional fraud). Children
under the age of seven, for example, were considered doli incapax, that is, “not possessed of sufficient discretion and
intelligence to distinguish between right and wrong” and hence “incapable of
criminal intention or malice” (Black, 1979). Children between the ages of seven
and twelve were presumed doli incapax
unless evidence of capacity to form culpable intention was presented.
Interestingly, the pattern of evidence most frequently adduced to infer such
intentionality, such as lying about the crime, concealing the body, or other
such after-the-fact actions, is still used in modern insanity trials as
evidence that the person was capable of the prerequisite intentionality at the
time of the crime. The culmination of this doctrine in more “modern” (i.e.,
since the Thirteenth Century) jurisprudence, is presented in Blackstone's
Commentaries in its classic form:
All the several pleas and excuses
which protect the committer of a forbidden act from the punishment which is
otherwise annexed thereto may be reduced to this single consideration, the want
or defect of will. An involuntary act, as it has no claim to merit, so neither
can it induce any guilt; the concurrence of the will, when it has its choice
either to do or to avoid the fact in question, being the only thing that
renders human actions either praiseworthy or culpable. Indeed, to make a
complete crime cognizable by human laws, there must be both a will and an
act....The rule of law as to...(lunatics)…is furiosus furore solum punitur [The madness of the insane is
punishment enough]. In criminal cases, therefore, idiots and lunatics are not
chargeable for their own acts, if committed when under these incapacities; no,
not even for treason itself. Cited in State
v. Strasburg, 1910, pp. 1021-1022.
One can show that the entire structure of the criminal law
is built upon this principle. No society seems ever to have been without such a
means, even if archaic. Sayre (1932) observes that while one of the earliest
legal texts, Leges Henrici Primi (The Laws of Henry I), alternates between
advocating absolute liability, “he who commits evil unknowingly must pay for it
knowingly,” and advocating the principle of mens rea, it was standard practice
for the king to either pardon mentally disordered persons found guilty of “absolute
liability crimes” or for other financial arrangements to be made. In fact,
Sayre's (1932) classic review of mens rea argues that the tradition of criminal
law in
While mens rea has been historically interpreted in a broad
fashion, making it roughly synonymous with “culpable intentionality” (Stroud,
1914, p. 13), or with the general mental and emotional capacity prerequisite to
choose freely to commit proscribed acts, the modern trend in criminal law has
been to construe the mens rea requirement of criminal conduct more narrowly,
and to equate it with such phrases as proscribed conduct performed “intentionally,”
“recklessly,” “knowingly,” or “purposefully.” Discomfort with the insanity
defense has been associated historically with attempts to either abolish it
outright or to change it drastically by restricting the relevance of mental
state to such a narrowly defined mens rea.
The most comprehensive scholarly review of this “narrowing”
approach is Wales (1976), who discusses the problem using the well-known
metaphor of “squeezing a lemon,” (i.e., a defendant, under this narrow view,
would not be guilty of killing his wife, if, while strangling her, he believes
he is merely squeezing a lemon). In other words, the prototypic case envisioned
as qualifying for exculpation under the narrow view would be delusional mistake
of fact. In discussing the legislative history of narrowing attempts,
In recent times, starting with the first Nixon
Administration, there have been many attempts in federal and state legislatures
to accomplish this shift in the focus of the insanity defense. In addition to the narrowing of the concept
of mens rea, some states have experimented with giving decision makers an
“in-between” verdict, namely “guilty but mentally ill” (which, in
reality, is simply a guilty verdict with no guarantee of differences in
sentencing, disposition or mental health treatment; see Bumby, 1993; Golding,
1992; Golding & Roesch, 1987).
Finally, some states continue to experiment with varying levels of
“abolition.” Currently, the modal
insanity defense criteria involve either the traditional American Law Institute
formulation (with or without the “volitional” prong), or restricted versions of
the traditional M’Naghten test (see below for a discussion of the historical
evolution of various legal standards).
The
Evolution of Legal Standards for Criminal Responsibility
M'Naghten's trial is assumed to be the starting place for
the test that
to
establish a defense on the ground of insanity, it must be clearly proved that,
at the time of the committing of the act, the party accused was labouring under
such a defect of reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong (M'Naghten's Case, 1843, p. 722)
However, it is reasonably clear that the
knowledge/right-wrong test had already been used implicitly and explicitly in a
series of trials in both
Although the M'Naghten rules were rapidly adopted in the
If therefore, it be true, as a
matter of fact, that the disease of insanity can ... so affect the mind as to
subvert the freedom of the will, and thereby destroy the power of the victim to
choose between right and wrong, although he perceived it - by which we mean the
power of volition to adhere in action to the right and abstain from wrong - is
such a one criminally responsible for an act done under the influence of such a
controlling disease? We clearly think not (p. 586).
In 1924, Crotty documented that the jurisdictions in the
United States had fragmented into four sets of rules: (a) relatively “pure”
M'Naghten; (b) M'Naghten broadened by interpretation to include irresistible
impulse as meeting the test; (c) M'Naghten supplemented by explicit
irresistible impulse rules; and (d) the New Hampshire “product” rule, heavily
influenced by Isaac Ray, and set forth in State
v. Pike (1869).
Justice Doe, in setting forth
Charles Guiteau's assassination of President Garfield in
1881 gave rise to a highly controversial trial and execution that took place
against the background of a strong concern over “irresistible impulses” and a
belief that insanity, especially “moral insanity,” was all to easy to feign
(Rosenberg, 1968).
Controversy surrounding various definitional and procedural
aspects of the insanity defense continued over the first half of this century
(see, for example, Ballantine [1919], Keedy [1917;1920] debating a proposal for
limiting the insanity defense to the narrower mens rea conception, and the
materials on early abolition attempts reviewed in the context of the “guilty but
mentally ill” option, below). In 1954, Judge Bazelon of the District of
Columbia Court of Appeals attempted to correct numerous deficiencies in the
combined right-wrong/irresistible impulse test in Durham v. United States (1954). In United States v. Brawner (1972), which ended the D.C. Court of
Appeal's experiments with the Durham “product test” and adopted the Model Penal
Code recommendations of the American Law Institute (ALI; 1962), Judge Leventhal
carefully reviewed the Court's logic in adopting Durham. First, “the old right-wrong/irresistible impulse rule for
insanity was antiquated, no longer reflecting the community's judgement as to
who ought to be held criminally liable for socially destructive acts. We
considered the Durham rule as
restated to have more fruitful, accurate and considered reflection of the
sensibilities of the community as revised and expanded in the light of
continued study of abnormal human behavior” (p.976).
Second, the older test forced expert witnesses to testify
in uncomfortably narrow terms of “right/wrong”, making “it impossible to convey
to the judge and jury the full range of information material to an assessment
of defendant's responsibility” (p. 976). While it has been asserted (Goldstein,
1967; Livermore and Meehl, 1967) that the test need not be narrowly cognitive,
and could include a wider range of affective “knowledge” and “appreciation” if
interpreted in proper jurisprudential and historical perspective, the concern
of the
While the
Judge Bazelon, in his partial dissent, agreed that the
product test needed to be rejected, but he was more pessimistic, viewing the
majority's adoption of the ALI rule as a change which was “primarily one of
form rather than of substance” (United
States v. Brawner, 1972, p. 1010). For Judge Bazelon, the purpose of the
reformulation should be to “ask the psychiatrist (sic) a single question: what
is the nature of the impairment of the defendant's mental and emotional
processes and behavioral controls?” (p. 1032), leaving “for the jury the
question of whether that impairment is sufficient to relieve the defendant of
responsibility for the particular act charged” (p. 1032). To emphasize this,
Judge Bazelon advocated a version of a test first proposed by the British Royal
Commission on Capital Punishment in 1953, “a defendant is not responsible if at
the time of his unlawful conduct his mental or emotional processes or behavior
controls were impaired to such an extent that he cannot justly be held
responsible for his act” (United States
v. Brawner, 1972, p. 1032). This “justly responsible” test Judge Bazelon
argued, and we agree, has the virtue of making perfectly overt the underlying
moral nature of the insanity defense, and placing the “hot potato” aspect of
such judgments squarely into the hands of the jury, as representatives of the
community. Nevertheless, the test has not been adopted except in
While the ALI rule has been widely adopted in federal
jurisdictions and many states (Keilitz & Fulton, 1983), the movement to
reform the insanity defense, and to limit its perceived abuse, has led to an
attempt to eliminate the “volitional prong” of the test (“to conform his
conduct to the requirements of law”). Advocates for this alteration have
included the American Bar Association (1983) and the American Psychiatric
Association (1982), following Bonnie (1983). This proposal was adopted into the
Federal Code by the United States Congress in the Insanity Defense Reform Act
(1984).
The Court of Appeals for the Fifth Circuit has agreed with
this abolition of the “volitional prong,” arguing that the position of the
American Psychiatric Association, that the profession did not possess
sufficiently accurate scientific bases to measure a person's capacity for
self-control, was persuasive (United
States v. Lyons, 1984a). A strongly worded dissent (United States v. Lyons, 1984b) argues that the “potential threat to
society (supposedly) created by the volitional prong” ignores “empirical data
that ... provide little or no support for these fearsome perceptions and in
many respects refute them” (p.995). The dissent's argument cites various
studies undercutting the perceptions of the misuse of the insanity defense. The
dissenters also could have included
The Guilty
but Mentally
Currently, approximately 13 states have provisions that
allow for a defendant to be found Guilty but Mentally Ill (GBMI; see Arrigo,
1996 for a review; see also Borum & Fulero, 1999, for a discussion of
various proposed insanity defense reforms).
The original GBMI legislation in this century was introduced in
In Underwood
Judge Campbell of the Michigan Supreme Court expressed his sympathies with the
abolitionist argument. He acknowledged outrage at the “absurd lengths to which
the defense of insanity has been allowed to go under the fanciful theories of
incompetent and dogmatic witnesses,” but he believed that the remedy was to be
found elsewhere:
No doubt
many criminals have escaped justice by the weight foolishly given by credulous
jurors to evidence which their common sense should have disregarded. But the
remedy is to be sought by correcting false notions, and not by destroying the
safeguards of private liberty (cited in State
v. Strasburg, 1910, p. 1028).
The GMBI verdict was intended to make it harder to reach a
verdict of NGRI (especially in grey area cases of severe personality disorder)
with the hope that most jurors would respond to the superficial logic of the
verdict (“okay, he's crazy, but he did it, didn't he?”). Opponents of the GBMI
verdict argue that it should be abolished on the grounds that it confuses and
deceives jurors (Melville & Naimark, 2002; see also Palmer, 2000). In order to cover the punitive and
abolitionist motivation, defenders of the GBMI legislation added a gloss of
rehabilitation by arguing that the new verdict provided an explicit means of
recognizing that some of those sent to prison were in need of mental health
treatment. Of course, they did not mention that few, if any, new funds were to
be appropriated to the prison system to provide more treatment (Beasley,1983)
and that provisions already existed, in every state that passed GBMI to laterally
transfer a disturbed prisoner into mental hospital settings for treatment if
that was necessary. In commenting on this entire enterprise, Professor Richard
Bonnie says, bluntly, “[The guilty but mentally ill verdict] should be rejected
as nothing more than moral sleight of hand” (1983, p.194).
The Assessment of
Criminal Responsibility
The evaluation process generally includes, broadly, three
major components or sources of data: (a) an interview with the defendant, (b)
forensic assessment instruments, and (c) third party information including (but
by no means limited to) collateral reports, witness statements, victim
statements, police reports, and records of various sorts (i.e., mental health,
treatment, school, medical, crime scene, etc.).
Each of these three major sources of data will be reviewed below;
however, the reader is referred to additional sources for more complete and
detailed information about the assessment process (see Borum, 2003; Giorgi-Guarnieri,
et al., 2002; Golding & Roesch, 1987; Golding, 1992; Golding et al, 1999;
Goldstein, Morse, & Shapiro, 2003; Gutheil, 2002; Melton et al., 1997;
Rogers & Shuman, 2000; Shapiro, 1999).
In addition, we include a section on the role of delusions in
evaluations of criminal responsibility as the nature and quality of a
defendant’s delusionality is often central in determining the extent of
impairment in mental state at the time of the offense, especially in contested
cases.
Interview
A comprehensive MSO (mental state at the time of the offense)
interview can be conceptualized as falling into a series of phases: (a) the
formal clinical-legal inception; (b) the reconnaissance; (c) the detailed
inquiry of present mental state; (d) the detailed inquiry of mental state at
the time of the offense; (e) reconciliation with other data sources (including
consultation with other professionals that have evaluated the defendant), and (f)
the termination.
Inception. In
addition to rapport building, the inception requires explaining clearly one's
role to the defendant, focusing on why he/she is being evaluated, to whom the
report will be sent, and what limits are placed on the confidentiality of
information. These confidentiality rules vary widely across jurisdictions and
are strongly influenced by the context of the case, so the examiner must be
fully informed, as a matter of professional competence. In most jurisdictions,
once defendants have entered their mental state into the adjudication process
by interposing an insanity defense or some other mental state claim, no
information revealed to the examiner that can be construed as relevant to that
claim is exempted. Jurisdictions differ widely, however, as to whether indirect
“fruits” of such evidence are admissible, so extreme caution is required in the
preparation of a report. The broadest coverage is found in the federal courts:
No statement made by the defendant
in the course of any (forensic) examination ... with or without the consent of
the defendant, no testimony by the expert based upon such statement, and no
other fruits of the statement shall be admitted in evidence against the
defendant ... in any criminal proceeding except on an issue respecting mental
condition on which the defendant has introduced testimony. (Federal Rules of Criminal Procedure,
1985)
As indicated, however, jurisdictions vary widely, and the
examiner should conform his/her practice to the local rules. It is also good
practice to inform a defendant what reports, records, and files have been made
available to the examiner, although in cases of suspected malingering an
examiner may choose to do otherwise. This is a matter of judgment, however,
since even in non-malingering situations, it may aid the clinical discovery
process to let the defendant tell his or her “filtered version” first. The
examiner may then introduce contradictory evidence at a later point in order to
observe the defendant's reaction and to ascertain if the defendant is
consciously distorting, having memorial difficulty because of their mental
state at the time, repressing memories, or suppressing details that are anxiety
arousing, embarrassing or painful to reveal.
Reconnaissance.
This is a forensically oriented review of the defendant's history. It is
important to obtain information regarding the defendant's lifetime history of
disturbance, treatments received, and general variability in mental condition.
Of particular importance are prior episodes that have involved criminal charges
and/or fitness evaluations, civil commitments and other such dispositions. The
pattern of mental state disturbance, its relationship to psychotherapeutic and
psychopharmacological treatment, medical conditions (e.g., hypoglycemia),
situational stressors, and alcohol and drug use, are particularly important.
Detailed inquiries - present mental state and mental state
at offense. Typically, it is difficult to separate these because a very
disturbed defendant will usually be subjected to treatment by rapidly acting
psychotropic medications. Nevertheless, it is crucial to bear in mind that
these mental states, while related, are separable, albeit with great
difficulty. We advise use of sections of structured and semi-structured
interviews to cover the domain of psychopathology in a relatively standardized
fashion to improve inter-examiner reliability in the elicitation and coding of
information. The detailed inquiry with respect to the mental state at the time
of the offense must also focus on the relationship of the psychopathological
elements to the criminal conduct charged. This part of the interview resembles
a “psychological autopsy.” The defendant must be asked to reconstruct his or
her thoughts, perceptions, experiences, attitudes and behavior, as well as that
of those in the “field of action” during the entire legally significant period.
Retrospective evaluations are difficult for lay persons, jurors, judges and
examiners alike, so great care must be taken to obtain very detailed
information and also to avoid, as far as possible, recall-based contamination
of the defendant's memories.
Reconciliation and termination. As emphasized by many advocates and critics of the role of
the forensic examiner in the legal process (see Bonnie & Slobogin, 1980;
Melton et al., 1997; Morse, 1978), the role of the expert is not to present
legal conclusions or formal psychopathological diagnoses. Rather, the role of
examiner, as expert, is to import state-of-the-art/science knowledge about the
existence of various psychopathological conditions and their relationship to
various behavioral, perceptual, cognitive and judgmental capacities into the
legal/moral decisional process. Thus, at the reconciliation/termination phase,
the examiner should be prepared to integrate the information available at this
level and to inform all parties concerned (the defendant, defense counsel,
prosecutor, and other professionals). One advantage of this openness is that it
allows the defendant to produce any additional information which might explain
or clarify discrepancies or other problems, and it helps prevent an uninformed “battle
of the experts.” In certain grey-area cases, there will be legitimate
disagreements among experts. It assists the trier of fact if the nature of
these disagreements, as well as areas of agreement, are drawn as precisely as
possible, with each examiner fully aware and able to comment in advance as to
the reasons for disagreement. Such pre-testimony consultations also tend to
produce higher quality and more informative strategies for direct and
cross-examination.
Forensic
Assessment Instruments
There currently exist two specialized forensic assessment instruments that have been developed to assist in the evaluation of mental state at the time of the offense; both of which were developed two decades ago. Given that the standards of forensic practice appear to be moving in the direction of greater reliance on and respect for forensic assessment instruments in the evaluation of psycholegal issues, these two instruments will be reviewed.
Mental State at the Time of Offense
Screening Evaluation (MSE). The Mental State at the Time of the Offense
Screening Evaluation (MES; Slobogin, Melton, & Showalter, 1984) is a
semi-structured interview technique that was developed to screen out defendants
for whom an insanity defense was clearly not applicable. In addition, the MSE could also be used to
identify those individuals who were “obviously insane” and thus did not require
any further, more comprehensive, evaluation.
The MSE is comprised of three sections: (a) historical information,
which assesses a defendant’s premorbid psychological and cognitive functioning;
(b) offense information, which accumulates information regarding the offense
from the defendant and external sources; and (c) present mental status
examination.
While there have not been any published studies of the reliability of the MSE, its validity was evaluated by Slogobin and colleagues (1984). Twenty four mental health professionals were trained to use the MSE and were then asked to assess 36 cases. They were given only a description of the charge and the preliminary hearing transcript prior to their assessment. Their decisions were then compared to the decisions made by the inpatient forensic evaluation team, which included one psychiatrist, one psychologist, and one social worker. Overall, there was a satisfactory agreement (72%, or 26 of 36 cases), between trainees and the evaluation team. There was 44% agreement (16 of 36 cases) on the cases that were screened out. Using the decisions made by the evaluation team as the criterion, the decisions made by the trainees were found to have a 0% false negative rate and a 28% (10 cases) false positive rate (“screened in” defendants who were screened out by the evaluation team). Compared to the evaluation team’s decisions, the trainees’ decisions had less agreement with the court’s verdict. Of the 10 defendants for whom the evaluation team suspected some “significant mental abnormality,” one was convicted, seven had their charges nolle prossed and two were found insane. On the other hand, of the 20 defendants whom the trainees suspected had some “significant mental abnormality,” six were convicted as charged, four were convicted of a lesser charge, six had charges nolle prossed, and two were found insane.
The limitations of the MSE have been debated (see Poythress, Melton, Petrila, & Slobogin, 2000; Rogers & Shuman, 2000). Given the lack of reliability research and the limited validity data, the MSE should perhaps be most appropriately viewed as a guide for evaluators to ensure that relevant areas are reviewed. Indeed, evaluators can include the MSE (or the R-CRAS, discussed below) in a comprehensive evaluation that would include multiple sources of data (e.g., psychological tests, third-party information, defendant’s interview).
Rogers and Sewell (1999) have responded to the criticisms of Melton et al. (1997) by attempting to extend the R-CRAS’ construct validity via the re-analysis of two data sets to address contributions of individual variables to the various components of the decision model. On the basis of discriminant function analysis, the authors conclude that the R-CRAS variables were able to form differentiating patterns (between individuals showing impairment and those not showing impairment) for each of the five components of the decision model. Results indicated average hit rates of 94.3% (ranging from 87.8% for Major Mental Disorder to 97.2% for Cognitive Control) and average variance accounted for of 63.7% (ranging from 38.5% for Malingering to 79.2% for Behavioral Control).
Factor analysis of the R-CRAS items results in three factors—bizarre behavior, high activity, and high anxiety—that do not mirror the five scales (see Borum, 2003). Rogers has reported modest inter-rater reliabilities at the item level (average kappa 0.58), with lower values (0.49) associated with the product question, (i.e., was the loss of control attributable to underlying psychopathological disturbance), one of the most frequent sources of disagreement in contested trials (Rogers & Shuman, 2000; Rogers, Wasyliw & Cavanaugh, 1984). Final judgments with the R-CRAS also show reasonable levels of agreement between examiners and triers of fact (96% with respect to sanity with lower levels of agreement on insanity [70%]; Rogers, Cavanaugh, Seeman & Harris, 1984; see Rogers & Shuman, 2000 for a summary). These findings are in general accord with the levels of agreement between clinicians and courts found in other studies of final judgment that use no formalized interviews or rating scales (Golding, 1992). Unfortunately, all studies in this area appear to use criterion‑contaminated groups in that the examination process is part of the judicial/criterial determination.
A number of
proposals for semi-structured protocols to assist in the evaluation of mental
state at time of the offense have been made (see, for example, Golding and
Roesch, 1987; Melton et al., 1997; Ogloff, Roberts & Roesch, 1993). They share in common an open-ended structure,
with special attention to developing multi-source data, identification of
legally and psychologically relevant dimensions of the criminal responsibility
evaluation, and disclosure of the logical links in an evaluator’s
reasoning. The need to develop such a
comprehensive analysis is clear. These
less-structured approaches have been shown to be empirically useful in various
contexts (see Melton et al. 1997, for a review), but they have not been studied
in the same fashion as the R-CRAS. The
R-CRAS and less structured MSO evaluation techniques make their most important
contributions by clarifying for the trier of fact the underlying bases for
professional judgment (Golding, 1990; 1992), hence potentially highlighting the
areas of disagreement so that expert testimony can be of more assistance to
judge or juror. There is strong reason
to believe that forensic examiners reach their generally high level of
agreement in “ultimate opinions,” by very different logical and empirically
sustainable routes. The critical issue
remains the association between organic or psychopathological disturbance and
control/moral judgment capacities; these devices are most useful when they
serve the heuristic value of (a) highlighting the aspects of the defendant's
psychological state that are relevant, (b) describing a purported relationship
to control and judgment capacities, and (c) organizing known data about the
empirical relationships between disorder and psychological capacities in
various states and situations.
Third Party Information
It is a commonly
accepted professional standard of practice that forensic evaluators seek to
examine the consistency of mental health history and other archival data, along
with details of the crime scene and witnesses accounts of the defendant before,
during, and after the alleged incident.
This “consistency” examination is relevant to issues of malingering and
aids in supporting or challenging various psychological interpretations of the
defendant’s mental state at the time of the offense. The importance of this aspect of a forensic
examination at the time of the offense has been discussed in numerous sources
(see Golding 1992; Heilbrun, Rosenfeld, Warren, & Collins, 1994; Melton et al.,
1997; Ogloff et al., 1993;
As Melton et al.
(1997) note, the role of the forensic evaluator is not to “resolve conclusively
all conflicting accounts about the case” (p. 50), but rather to conduct an
evaluation that can be scrutinized in
terms of all available evidence, both psychological and behavioral. Modern forensic standards of practice are to
address the issue of the consistency of behavioral crime scene evidence with
psycholegal formulations, and to allow the trier of fact of make the
determination of their significance, guided by whatever scientific evidence can
be directly or indirectly adduced.
The
Role of Delusions in Assessment of Criminal Responsibility
The nature and quality of a defendant’s delusionality is central in determining the extent of impairment in mental state at the time of the offense. Several issues are involved. In contested cases, forensic examiners are particularly apt to encounter defendants with extreme or idiosyncratic beliefs about religion, politics or personal identity, and questions regarding the delusionality of those beliefs will arise. Delusionality also enters the adjudicatory process when the issues of intentionality, compulsion, or the reasonableness of the defendant’s conduct may be related to a delusion. Finally, delusionality is an important aspect of risk assessment with respect to release decisions.
Although there are surprisingly few studies on the frequency and nature of delusions among NGRI defendants, indirect data, as well as experience, suggest that delusionality is a vital issue (see Litwack, 2003, for a discussion of defendants who refuse to mount an insanity defense on the basis of delusional reasoning). Delusions (especially delusions of reference, persecution, and control, which are particularly relevant to forensic cases) are highly prevalent among individuals who suffer from psychosis (Winters & Neale, 1983); in turn, roughly half of those defendants who raise the insanity defense and 70% of insanity acquittees have psychotic diagnoses (Andreasen & Flaum, 1994; Cirincione, Steadman & McGreevy, 1995; Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Rice & Harris, 1990; Taylor et al., 1994). Moreover, delusions have been shown to be specifically and substantially related to violence (Taylor et al., 1994).
In an extensive
analysis of case records, Häfner and Böker (1982) found that 70% of individuals
with schizophrenia who were accused of homicide had delusional beliefs about
their relationship to their victim.
Similarly, in an interview study,
Distinguishing
between radical beliefs and delusions is a difficult, but critical, task in
assessing criminal responsibility. Respecting the principles of autonomy and
self determination, our legal system holds responsible the extremist who
chooses to act upon a radical system of beliefs, expressing her desires,
values, and “personhood” through the crime (see Hermann, 1990). The basic moral logic of the insanity
defense, however, excuses the mentally disordered individual who acts upon a
pathological, uncontrollable belief system that distorts his or her sense of
reality, thereby impairing the capacity for rational choice. Arguably, the same logic also applies to
delusions that would “justify” the actions.
Notwithstanding
the centrality of this issue in assessing criminal responsibility, there are
relatively few data-oriented studies or professional practice standards
available in the forensic literature to aid in assessing the delusionality of
beliefs. In “grey area” cases, or cases
in which defendants are neither clearly sane nor insane, the classification of
beliefs as delusory is presumably a major source of disagreement among
examiners. There is no “bright line” of
demarcation between extreme beliefs and delusions (Garety & Hemsley, 1994;
Oltmanns, 1988). Moreover, religious and
political belief systems, which reference nonphysical entities and events, are
not scientifically testable; consequently, there is “no full standard of truth
independent of what the [defendant] says” (Taylor, et al., 1994, p. 167; Saks,
1991). For these reasons, in this section we will review recent progress in
defining and assessing delusions and their likely consequences. The purpose of this section is to introduce
readers to the complex issues involved in assessing delusions and to aid
clinicians in conducting informed assessments of defendants’ beliefs in the
context of insanity evaluations.
Emphasis is placed upon issues relevant to distinguishing between
extreme religious or political beliefs and delusions.
Defining
and conceptualizing delusions. The DSM-IV-TR defines a delusion as follows:
A false
belief based on incorrect inference about external reality that is firmly sustained despite what almost
everyone else believes and despite what constitutes incontrovertible and
obvious proof or evidence to the contrary.
The belief is not one ordinarily
accepted by other members of the person’s culture or subculture (e.g., it
is not an article of religious faith).
When a false belief involves a value judgment, it is regarded as a
delusion only when the judgment is so extreme as to defy credibility. (American Psychiatric Association, 2000, p. 821,
emphasis added)
Although this definition is adequate
for most forensic and clinical purposes, its shortcomings are readily exposed
when one attempts to delineate its boundaries (Sedler, 1995). As noted above, there is often no standard of
proof by which to assess the falsity of beliefs in many religious, political or
identity systems. Similarly, it is
difficult to evaluate the incredibility or implausibility of beliefs:
clinicians rarely agree upon the extent to which beliefs are bizarre (Flaum,
Arndt & Andreasen, 1991; Oltmanns, 1988; Spitzer, First, Kendler &
Stein, 1993; cf. Mojtabai & Nicholson, 1995). The degree of conviction with which a belief
is held also does not clearly distinguish between delusional and nondelusional
beliefs. Like delusional beliefs, nondelusional but highly valued beliefs are
often held with great zeal and intensity even in the face of contradictory
evidence. Moreover, most patients shift between periods in which they are
certain about their delusions and periods in which they have partial or full
insight (see
These difficulties are “frequently
compounded by ambiguity surrounding the presence or absence of cultural support
for the person’s belief” (Oltmanns, 1988, p. 3). It is difficult to determine the extent to
which the nature of a belief, its experience, or its expression must deviate
from that accepted by a designated subgroup to classify as delusional. Clearly,
examiners must have considerable knowledge of the social, religious, political
and even scientific context of a defendant’s belief to adequately assess its
delusionality (see Barnhouse, 1986; Oltmanns, 1988). Failure to carefully consider patients’
subcultural and religious background often results in misdiagnosis (see Lu,
Lukoff & Turner, 1994).
Most current attempts to systematically
analyze delusions are based upon the seminal work of Jaspers (1963; see Garety
& Hemsley, 1994; Mullen, 1979, 1985; Sedler, 1995). Jaspers arguably
provides the most comprehensive, enduring, and clinically useful theory for
distinguishing among various categories of delusional and nondelusional
beliefs. A simplified summary of this
theory focused on differentiating delusional from nondelusional beliefs per se
will be presented here (see C. Walker, 1991 for detail).
Jaspers argued that the criteria of
conviction, imperviousness to counter-argument and impossibility or bizarreness
were insufficient external criteria that did not capture the essence of
delusionality. Rather, “overvalued
beliefs,” or even “delusion-like ideas” could be distinguished from primary
delusions, based upon Jaspers’ approach, by attention to three fundamental
criteria. First, primary delusions are
distinguished from secondary delusions, and beliefs that are merely overvalued,
based upon the extent and nature of their “un-understandability.” Second, primary delusions are “unmediated” by
thought, analysis, deduction or reflection, while overvalued ideas and
secondary delusions reflect varying degrees of cognitive appraisal and inference. Third, primary delusions reflect a distinctive
change in an individual’s personality functioning, that is, they are a distinct
change in the totality of the individual’s personal meanings and ways of
construing the world.
An overvalued idea is
understandable, the product of cognitive interpretation, and can be viewed in
terms of an individual’s personality, life experiences, and socio-cultural
background. Overvalued ideas are
relatively easily understood “as exaggerations, diminutions, or combinations of
phenomena which we ourselves experience” (Jaspers, 1963, quoted in C. Walker,
1991, p. 100). In contrast, a secondary
delusion (“crazy idea”) is only
understandable in the sense that it emerges through one’s process of reasoning
about psychopathological experiences (e.g., based upon the quiet voices and
buzzing an individual occasionally hears, she arrives at the conclusion that
she is a target of government surveillance).
A primary delusion is not
understandable because it originates in a direct, immediate experience of new
meaning unmediated by thought and unconnected to the person’s fundamental
personality (e.g., one sees a “man in a brown coat...he is the dead Archduke,” C.
Walker, 1991, p. 99). Thus, while
overvalued ideas have “clear precedent” in an individual’s existing personality
and meaningful life events, secondary delusions emerge from other
psychopathological experiences and primary delusions fundamentally change an
individual’s personality or “way of looking at the world” (C. Walker,
1991). Although Jaspers’ classification
has been subject to little empirical research and can be criticized for relying
heavily upon the subjective criterion of “understandability” (Mullen, 1985),
his theory provides useful guidance in conceptualizing the key distinctions
among delusions and overvalued ideas.
Issues
in the Treatment and Release of Insanity Acquittees
Inherent in the
original decision to find a defendant “not guilty by reason of insanity” is
concern about the ultimate “disposition” of such acquittees. Jurors place a great deal of emphasis on this
issue in their deliberations (see Golding, 1992). A comparison of data on the rates and success
of insanity pleas and the nature of insanity dispositions with data on public
perceptions about these issues clearly reveals that the public over-estimates
the frequency and successfulness of the insanity plea and under-estimates the
nature and length of institutionalization following an insanity “acquittal”
(Silver, Cirincione & Steadman, 1994).
Curiously, in Shannon v. United
States (1994), the Supreme Court held that NGRI defendants have no right to
a jury instruction that makes clear the post-“acquittal” commitment process,
since such an instruction would violate the long standing principle that a jury
must base its verdict on the evidence before it. While this may be correct jurisprudential
theory, it violates common-sense justice in that we have strong reason to believe
that jurors do pay attention to this issue and that these assumptions are
incorrect (see section on empirical developments below).
Contrary to strong public concerns, NGRI
acquittees are not “easily” released. In
fact, research indicates that they are more likely to remain institutionalized
for longer periods of time than crime-equivalent “guilty” persons (see Miller,
1994; Silver, 1995). The
constitutionality of this has been justified by the U.S. Supreme Court on the
grounds that the purpose of their commitment is to treat their dangerousness,
not to punish them for a crime for which they were found “not guilty” (see Foucha v. Louisiana, 1992; Jones v. United States, 1983). A number of factors contribute to this
lengthy treatment and slow release process.
First, NGRI acquittees are likely to be
those severely mentally disordered persons for whom currently available treatment,
both biochemical and psychosocial, has been ineffective. This is not because they are bad or
non-compliant persons, but because, contrary to medical and pharmaceutical
company myth, about a third of the severely mentally disordered fail to show
meaningful clinical response (see Relman & Angell, 2002). Such individuals may also become
non-compliant as a result of a complex psychological process. That is, unless clients perceive a subjective
benefit from treatment they are less likely to tolerate unpleasant
side-effects. Mental health
professionals who establish an authoritarian (“you’re sick and you need to take
your medicine’) as opposed to a collaborative (“let’s work together to find a
treatment strategy where the benefits outweigh the risks and side-effects”) are
also more likely to produce non-compliance (see Appelbaum & Gutheil, 1982). Where such problems in the therapeutic
relationship exist, medications are frequently delusionally re-interpreted as
the cause for psychotic symptoms. Thus,
upon NGRI admission, a typical person has a long track record of unsuccessful
treatment, the most recent frequently occurring only months before the index
offense (Golding, Eaves and Kowaz, 1989).
Second, because their “dangerousness”
(manifested by the “actus
Third, political realities based upon the
sensational publicity produced by the media, in large part because they
perpetuate insanity defense myths (see Silver et al., 1994) in failed NGRI
releases, make decision makers quite cautious.
Finally, few jurisdictions have an
articulated pre-release risk assessment, post-release risk management, and
intensive case management system capable of more safely handling the community
adjustment and supervision needed for such individuals.
An unstudied aspect of the dispositional issue has to do with the ultimate costs and effectiveness of placing prototypic insanity acquittees in forensic treatment contexts versus placement in traditional correctional facilities. Although some data clearly support the monitored release of NGRI acquittees, the larger trend, in those states with either guilty but mentally ill or highly restricted (or non-existent) insanity defenses, is to place such defendants in correctional environments for the majority of their “sentence” or institutionalization. Wiederanders (1992; Wiederanders & Choate, 1994) and Golding and colleagues (1989) have shown that articulated follow-up of insanity acquittees in the community is feasible and worthy of study. What we do not have is informative data on the differences between similar individuals “treated” in correctional versus forensic mental health contexts. We know of no empirical studies of this issue. With respect to mental health economics, the question is whether society eventually pays more or less for treating mentally disordered offenders in prison versus forensic mental health systems. Clearly, the cost per diem while initially incarcerated will favor prison over mental health system dispositions; however, the analysis also needs to include days institutionalized, days in the community at lower cost, as well as the likelihood and financial, emotional, and moral costs of recidivism. Again, we know of no direct data but, on logical grounds, we would propose that treated and supervised mentally ill and dangerous offenders would cost less, financially and emotionally, than prison incarcerated mentally ill offenders who receive less mental health treatment and supervision.
As is evident from the above
discussion, there are a multitude of issues that clinicians face with respect
to the assessment and disposition of NGRI defendants. We will now turn to a review of empirical
research developments that have taken place with respect to many of these
issues.
Empirical
Developments Regarding Criminal Responsibility
Research in the area of insanity and criminal
responsibility has taken a number of forms.
We have conceptualized this research as falling into three broad areas:
research on NGRI verdicts (including the frequency of NGRI verdicts, rates of
agreement between experts as well as between experts and the courts with
respect to NGRI opinions, and the characteristics of NGRI acquittees); research on judicial instruction (including an
examination of various legal standards or tests of insanity); and jury and
juror decision-making with respect to insanity (including jurors’ case-relevant
attitudes, case construals, and implicit theories or prototypes regarding
insanity). We will present a brief overview
of each of these three areas below. The
reader is referred to other sources for a more detailed and comprehensive
review of this literature (see especially, Finkel, 1995, 2000; Lymburner &
Roesch, 1999; Simon, 1999).
Research
on NGRI Verdicts
Research on the
empirical realities of the adjudication of criminal responsibility has
continued to demonstrate the same basic phenomena since earlier reviews (see Golding,
1992; Pasewark, 1986). The research has
primarily been directed at describing the NGRI population, in traditional
demographic and diagnostic terms, and at “demythologizing” public
misconceptions of the insanity defense (see Silver, Cirincione, & Steadman,
1994, for a review).
Frequency of NGRI verdicts. Empirical research indicates that the defense is seldom raised, averaging less than 1% of total felony indictments (Steadman et al., 1993), and is highly variable in its “success” rate, with that rate modally being 25% of those who raise the issue. Cirincione, Steadman, and McGreevy (1995) surveyed seven states with respect to the frequency of insanity pleas and the likelihood of insanity acquittal and found an inverse relationship between the two factors. That is, states in which the insanity plea rates were high had a lower insanity acquittal rate. These authors found an average rate of insanity pleas of .85 (less than 1%) per 100 felony indictments and an aggregated success rate of 28%. Silver et al. (1994) cite success rates that are highly variable, ranging from 7% to 87% and averaging 26% (for earlier studies and summaries of success rates see Janofsky, Vandewalle, & Rappaport, 1989; Pasewark, 1986; Steadman & Braff, 1983).
Cirincione and
Jacobs (1999) attempted to collect data on each state
with respect to the annual number of insanity acquittals and, despite valiant
efforts, were only able to obtain data from 36 states. Their results indicated that, for these 36
states, the mean number of insanity acquittals was 33.4 per state per year,
with a median of 17.7 and a standard deviation of 41.7. The found that
Rates of agreement. There is a high rate of agreement among forensic experts of similar levels of training, experience and methodology, and high levels of agreement between examiner opinions and judge/juror decisions with respect to insanity opinions. Research on the reliability of forensic judgments indicates that the types of cases likely to be contested include issues of: comorbidity with personality disorder; highly idiosyncratic and paranoid religious, political, or identity systems; intoxication or failure to take medications; and extremely bizarre conduct (see Melton et al., 1997; Golding, 1992; Hoge & Grisso, 1992; Rogers & Ewing, 1992 for summaries of the reliability research). NGRI verdicts are typically achieved as either a stipulation between defense and prosecution or bench trials, and rarely involve contested “battles of experts” in front of jurors (Golding, 1992; Melton et al., 1997; Silver et al., 1994).
Research on inter-examiner agreement is of limited utility as it focuses on global agreement. Research on the logic and structure of examiner decision-making in competency evaluations (Skeem, Golding, Cohn & Berge, 1998) demonstrates high global agreement in ultimate conclusions, but very poor agreement in examiner logic, including defendant’s particular abilities and incapacities. Logically, we would expect the same in NGRI evaluations. Similarly, we know of no empirical study of the crime characteristics that lead actual judicial decision-makers or forensic examiners to conclude that the defendant lacked the legally or morally relevant mental state. This point is particularly critical because few examiners, in our experience, pay close attention to collateral reports or crime scene data with respect to its consistency with their inferences about a defendant’s mental state (see Melton et al., 1997).
Unfortunately, this type of socio-demographic research does not address the more theoretically interesting question: what types of mental disorder characteristics (beyond psychosis) and what aspects of offense incident characteristics (planning, intentionality behaviors, reasonableness of motive) influence expert, judge and/or juror decision making.
Characteristics of NGRI defendants. Finkel (1995) and Roberts and Golding (1991) have argued and presented rather convincing data, from analogue studies, that jurors’ individual construal of the case and particular defendant characteristics, along a set of dimensions (i.e., the ability to think and reason rationally and clearly; the capacity to perceive and be aware without distortion; the capacity to choose courses of action; rational motivation for actions; the ability to control thoughts, feeling, and behaviors; and responsibility for altering one’s mental state by intoxication, noncompliance with medication, and other factors), are major determinants of mock decision-making. It would be important for large scale research on both examiner judgments and the verdicts reached by judges and the rare trial jury to examine what elements or factors they rely upon in reaching their decisions.
Some research has focused on the characteristics of defendants who have presented successful insanity defenses and, thus, have been acquitted as NGRI. These defendants typically have major psychotic diagnoses and extensive mental health histories, often with prior civil commitments or prior findings of incompetency (see Golding, 1992; Golding, Eaves & Kowaz, 1989; Ogloff et al., 1992; Steadman et al., 1993). A detailed examination of a large NGRI cohort by Golding and colleagues (1989) found that 79% had been previously hospitalized, with a mean of 4.11 hospitalizations; 43% of these prior admissions were for forensic reasons. Over half of the subjects with prior admissions were discharged within one year of their index offense, and 45% committed their index offense within six months of their last discharge.
In terms of
decisions made regarding the conditional release of those defendants who have
been found NGRI, Callahan and Silver (1998a) studied
the factors associated with the conditional release of NGRI acquittees across
four states (Connecticut, Maryland, Ohio, and New York) and found wide variance
in the types of characteristics that are associated with conditional release. In
With respect to the revocation of conditional release,
research has indicated that revocation rates vary widely (for example, between
35 and 50%, see Callahan & Silver, 1998b; Heilbrun & Griffin, 1993;
Wiederanders, Bromley, & Choate, 1997) and that variables such as being
white, employed, and married are indicative of successful conditional release
(see Tellefsen, Cohen, Silver, & Dougherty, 1992). Monson and colleagues (Monson, Gunnin, Fogel,
& Kyle, 2001) examined the factors that were related to the revocation of
conditional release for a sample of 125 NGRI acquittees and found that minority
status, prior criminal history, and diagnosis of substance abuse were
significantly predictive of revocation of conditional release.
Research
on Judicial Instruction
Jurors are
expected to determine an appropriate verdict by conscientiously applying the
law to a fair evaluation of the evidence (Wainwright
v. Witt, 1985). As suggested above,
the effect of specific language differences in legal standards for insanity
have been intensely debated for over two centuries. The nature and outcome of
these debates, however, have shown either weak or little practical effect on
jurors as a main effect. Research repeatedly demonstrates that mock jurors
often do not apply judicial
instruction on various legal definitions of insanity in rendering verdicts
(Finkel 1989, 1991, 2000; Finkel, Shaw, Bercaw & Kock, 1985; Ogloff; 1991;
Ogloff, Schweighofer, Turnbull & Whittemore, 1992; Simon, 1999). For example, the Insanity Defense Reform Act
(1984) was formulated after
In fact, Finkel and others have found that it often makes no difference whether jurors are given any test or standard: mock jurors who receive no insanity definitions or who are told to use their “best lights” judgment to decide a case produce verdict patterns indistinguishable from those of mock jurors who receive various insanity test instructions (Finkel, 1989, 1991; Finkel & Duff, 1989; Finkel & Handel, 1988; Ogloff, 1991; Wheatman & Shaffer, 2001; Whittemore & Ogloff, 1995). As Diamond (1997) observes, many of the effects and their strength depend on the way the verdicts are formulated, the alternatives, existence of contextual effects, and so forth. The fact that jurors determine whether a defendant is sane or insane without the guidance of legal instructions suggests that they have and rely upon their own knowledge about insanity and other cognitive structures to make these decisions. It does not imply that they “nullify” instructions; rather, that their own implicit theories of insanity guide their interpretation of the admittedly vague and non-specific linguistic terms of insanity standards.
Research on the GBMI verdict option has found that mock jurors who opt for the GBMI verdict option (when given three options—NGRI, GBMI, and guilty) tend to be more moderate in their ratings of deserved blame and punishment as well as in their ratings of a defendant’s level of mental disorder, capacity to display rational behavior, and capacity to control psychotic beliefs than mock jurors selecting NGRI or guilty verdicts (Roberts, Sargent, & Chan, 1993). Poulson, Wuensch, and Brondino (1998) found that the addition of the GBMI verdict option resulted in a twofold effect: (a) a reduction in guilty verdicts by about two thirds, and (b) a reduction of NGRI verdicts by about one half. These authors conclude that the GBMI verdict appears to be used as a compromise verdict.
Poulson and his colleagues (Poulson et al., 1998; Poulson, Braithwaite, Brondino, & Wuensch, 1997) found that mock jurors’ attitudes were reflected in their verdict selections. For example jurors who opted for guilty verdicts (as opposed to GBMI or NGRI verdicts) held a crime-control orientation and favorable attitudes towards the death penalty, as well as unfavorable attitudes towards insanity. The opposite was true of those jurors who opted for an NGRI verdict (over guilty or GBMI).
Recent research on
judicial instructions has made clear the importance of allowing jurors the
opportunity to deliberate. Wheatman and
Shaffer (2001) found that dispositional instructions had no effect on the
verdict preferences of individual jurors (that is, individuals who were not
given the opportunity to deliberate but rather made verdict decisions
immediately after being presented the trial stimuli); however, after given the
opportunity to deliberate as a jury, post-deliberation shifts in these initial
verdict preferences were evident. These
researchers found that uninstructed
juries (those juries given no information about the treatment and detainment of
individuals acquitted by reason of insanity) were more likely to shift towards
a harsher verdict after deliberation whereas instructed juries (given dispositional information) were more
likely to shift towards more lenient verdicts after deliberation. These results serve to underscore the
importance not only of dispositional instructions but also the opportunity for
jurors to deliberate as juries.
Research
on Jury and Juror Decision Making
Although data on
the reliability and validity of well-founded forensic criminal responsibility
opinions is encouraging, there are no modern studies of actual juries or bench
trials in terms of the defendant, expert testimony for and against mental
state, and case-specific factors that are weighed in accepting or rejecting an
insanity claim. Logically, we can place
some weight in surveys of attitudes toward insanity and insanity dispositions,
and compare that to what is empirically known. Most of what we know is based
upon jury simulation studies. Although there are problems that arise with this
particular methodology, a careful analysis of analogue studies produces a
rather consistent set of findings and implications.
Although the legal
system implicitly assumes that people are blank slates who can apply the law in
a wholly evidence-driven fashion, substantial research indicates that people
have “knowledge structures” which reflect their life experiences and guide
their behavior (Schneider, 1991; Fiske, 1993).
These knowledge structures include constructs such as attitudes,
schemas, prototypes, and stereotypes, and appear highly relevant to legal
decision making (see Moran, Cutler & DeLisa, 1994; Pennington & Hastie,
1986; Stalans, 1993; V. Smith, 1991).
Several sources of research, in various stages of development, suggest
that individual differences in these structures are critical in understanding
why jurors reach particular verdicts in insanity defense cases.
Jurors’
case-relevant attitudes. The
insanity defense is controversial and involves scientific as well as
political-moral issues. Although public
opinion polls and empirical studies often find support for the basic logic of
the insanity defense, they consistently reveal powerful negative attitudes
toward the defense (Borum & Fulero, 1999; Cutler, Moran & Narby, 1992;
Ellsworth, Bukaty, Cowan & Thompson, 1983; Hans, 1986; Hans & Slater,
1984; Homant & Kennedy, 1987; Jeffrey & Pasewark, 1983; Pasewark &
Seidenzahl, 1979; Roberts & Golding, 1991; Skeem & Golding, 2001). For example, Roberts, Golding and Fincham
(1987) found that, although 78% of their subjects believed that severe mental
illness suggested impairment in one’s capacity to make rational decisions and
form criminal intent, 66% believed that insanity should not be allowed as a complete criminal defense. Across studies, results reflect a primary
concern that the insanity defense is an easily abused “loophole” in the law
that allows many guilty criminals to escape punishment (Silver et al.,
1994). Additional concerns include
beliefs that insanity is easily malingered and that the public is poorly
protected from dangerous criminals who are adjudicated insane (Golding, 1992;
see also Perlin, 1994, chap. 5). Similarly, jurors’ case-specific negative
attitudes towards both mental health experts and individuals with severe mental
illness appear relevant in their decision making in insanity defense cases
(Cutler, et al., 1992; Perlin, 1994; Skeem & Golding, 2001).
Many of the above
concerns reflect inaccurate knowledge about the insanity defense. Such myths are not only prevalent, but may
also be inflexible. Jeffrey and Pasewark (1984) presented subjects with factual
statistics on the frequency and success rate of the insanity defense. Approximately half of subjects maintained their opinion that the insanity defense
was overused and abused despite having seen contradictory evidence. Especially troubling is the robust finding
that these prevalent, potentially inflexible, negative attitudes toward the
insanity defense exert considerable influence on mock jurors’ verdicts in
insanity cases (Bailis, Darley, Waxman, & Robinson, 1995; Robinson &
Darley, 1995; Cutler, Moran & Narby, 1992; Ellsworth et al., 1984; Homant
& Kennedy, 1987; Roberts et al., 1987). For example, Roberts and Golding
(1991) found that mock jurors’ attitudes toward the insanity defense were more strongly associated with their
verdicts than were the study design variables, which included manipulations of
available verdict categories (insanity vs. insanity supplemented by guilty but
mentally ill), and case facts (the relationship of the defendant’s delusion to
the crime and the planfulness of the crime).
The most determinative dimension underlying these attitudes was jurors’
belief in strict liability (versus a belief that mental state is relevant to a
defendant’s blameworthiness). In
essence, then, jurors’ verdicts may depend more upon their attitudes and
opinions than on case facts and court instruction.
Despite strong
evidence on the biasing effect of negative attitudes toward the insanity
defense on verdicts, bias may often go undetected based upon limitations in
current knowledge and legal procedures.
First, despite abundant research on insanity defense attitudes, no well-validated
measure of these attitudes has yet been developed. Skeem and Golding (2001) present one of the
first checklists of jurors’ conceptions that, they suggest, could be adapted
into a questionnaire to assess prospective jurors’ conceptions of the “typical
person who is not responsible for his criminal actions due to mental illness”
(p. 607). Second, except in cases
involving interracial violent crimes, capital punishment, or pretrial
publicity, judges are accorded broad discretion in selecting the topics to be
addressed during voir dire (Johnson
& Haney, 1994; Sklansky, 1996).
Although insanity defense cases arguably invoke equally powerful biases,
the case law reflects a trend in which judges refuse to inquire about bias
against the insanity defense or even allow the impanelment of jurors who
express biases against the defense or against the mentally ill (Perlin,
1994). In our opinion, the voir dire process would ideally be
reformed such that prospective jurors’ case-relevant preconceptions and
attitudes were routinely examined in insanity defense cases.
Jurors’
case construals. Additional lines of research suggest that jurors’
views are critical. In addition to their
case-specific attitudes, jurors’ individual ways of interpreting evidence are
related to their verdicts. Mock jurors
draw different inferences about
defendants’ cognitive and volitional impairments when given identical case descriptions (Bailis et al.,
1995; Roberts & Golding, 1991; Roberts et al., 1987; Roberts, Sargent &
Chan, 1993; Simon, 1999; Whittemore & Ogloff, 1995). These inferences, in turn, strongly predict
their verdicts. For example, Roberts and
Golding (1991) presented mock jurors with case vignettes in which they
manipulated available verdict categories, the relationship of the defendant’s paranoid
delusion to the crime, and the planfulness of the crime. The attitude-related ways in which mock
jurors interpreted the case evidence were the most powerful predictors of
verdict choice. For example, individual differences in jurors’ perceptions of the extent to which a
defendant was mentally disordered, capable of rational behavior, capable of
acting differently, or capable of understanding the wrongfulness of their
behavior explained substantially more variance in verdicts than did the
objective manipulation of case evidence.
Finkel and Handel
(1989), using different methodology, also found that jurors actively construct
the meaning of case information in rendering verdicts. They presented mock jurors with four vastly
different case vignettes and asked them to render a verdict and explain the
reasoning underlying their decisions.
Using a rationally derived categorization scheme, they found that mock
jurors cited multiple, rational reasons for their decisions in each case (the
categorization scheme included, for example capacity-incapacity to make
responsible choices, unimpaired-impaired awareness and perceptions, no
motive-evil motive for criminal act).
The pattern of the cited constructs or reasons systematically differed based upon the verdict that
mock jurors reached. In essence, then,
jurors construed case information in complex, discriminating ways that were
consistent with their verdict choices.
Similarly,
Whittemore and Ogloff (1995) found that differences in mock jurors’ perceptions of a defendant’s mental
state at the time of his trial predicted their verdicts. Despite manipulation of the defendant’s mental
state at the time of trial (symptom free, neurotic, or psychotic), mock jurors
differed in their perceptions of the extent to which given defendants were
mentally disordered. When mock jurors’
inferred that the defendant was psychotic at the time of the trial, they were
more likely to deem him insane.
Jurors’
implicit theories or prototypes of insanity. In essence, then, jurors construct the meaning of case
information. These “constructions” or
interpretations are more strongly associated with jurors’ verdicts than the
case as objectively given and appear unaffected by judicial instruction. Based upon these findings, several authors
have argued that jurors render insanity verdicts by carefully resorting to
their personal knowledge or implicit theories of insanity (Finkel & Handel,
1989; Roberts & Golding, 1991; Roberts et al., 1987). However, the nature of these theories and the
process by which they affect verdicts remains unclear. The studies that have
attempted to infer the nature of mock jurors’ conceptions of insanity based on
jurors’ judgments about insanity case vignettes have produced somewhat
conflicting results in terms of the relative importance of various construal
dimensions (see Roberts et al., 1987; cf. Bailis et al., 1995; Robinson &
Darley, 1995; Finkel & Handel, 1989).
To date, studies that directly
analyze what people mean by “insane” in the context of an analysis of actual
jury decisions are virtually nonexistent: “’what everybody knows’ about
insanity is perilously unchartered” (Perlin, 1994, p. 294).
Finkel (1995) and colleagues have been conducting research examining jurors’ conceptions of insanity by using a prototype theory of categorization. Finkel & Groscup (1997) found that undergraduate subjects describe insanity cases as involving young defendants with a history of strain, mental disorder, violence, and abuse, who perpetrate various crimes, including murder, after various precipitating events (including the loss of loved ones) on a stranger. For successful insanity cases, the defendant’s motive is related to a grandiose delusion; for unsuccessful cases, revenge is the motive.
Skeem and Golding
(2001) identified three prototypes of insanity and found that these prototypes
were systematically related to jurors’ case-relevant attitudes and demographic
characteristics. The three prototypes
identified were: (1) severe mental
disability, the prototype representing the majority (47%) of the jurors and
characterized by an emphasis on severe, long-standing, functional impairment
and intellectual disability that is resistant to treatment; (2) moral insanity, the prototype
representing about one-third (33%) of the jurors and characterized by an
emphasis on traits of psychopathy, psychosis, and violent, unpredictable
behavior; and (3) mental state-centered,
the prototype representing about one-fifth (21%) of the jurors and
characterized by a narrow focus on issues relevant to the defendant’s impaired
mental state at the time of the offense.
These prototypes were related to differences in the ways that jurors
interpreted case information and rendered verdicts in that the jurors with the
mental state-centered prototypes were more likely to render verdicts of NGRI
and more likely to perceive defendants as less worthy of punishment, less able
to control their beliefs and more mentally disordered.
Jurors’ decisions
are not determined solely by subjective factors. Although individual differences in social-moral
cognition appear most critical in understanding jurors’ verdicts, objective
manipulation of case facts does have some impact on jurors’ verdicts. For example, the level of a defendant’s
mental disorder, and the planfulness and bizarreness of the crime are
associated with jurors’ verdicts (Roberts et al., 1987; Roberts & Golding,
1991). As noted earlier, the
characteristics of insanity acquittees suggests that juror and judicial
decision making is rational and relatively consistent.
Summary and
Conclusions
This chapter was meant to provide a
broad overview of a number of issues and considerations regarding empirical,
legal, and clinical aspects of criminal responsibility. It seems apparent that there has been a great
deal of discussion and controversy surrounding various legal standards or tests
of criminal responsibility and that the available research appears to indicate
that this discussion and controversy may be all for not given that judicial
instructions do not appear to have a significant impact on juries’
verdicts. This being said, however, we
believe that recent research has begun to tap into various issues that require
further consideration. Such issues
include the role that deliberation plays in juror/jury decision-making and
verdicts and the impact of juror prototypes on verdicts and the interpretation
of case information. Future research that
uses samples of jury-eligible adults (as opposed to simple samples of
convenience such as from undergraduate psychology subject pools) will help to
further this important body of knowledge.
Similarly, clinically-oriented research will help to further develop our
assessment techniques and interventions for defendants for whom criminal
responsibility arises as an issue.
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